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PARTNERSHIP
PARTNERSHIP By the contract of partnership two or more persons bind themselves to contribute money, property or industry to a common fund, with the intention of dividing the profits among themselves. Two or more persons may also form a partnership for the exercise of a profession. (Art. 1767) A partnership has a juridical personality which is separate and distinct from that of the partners. A partnership may sue and be sued in its name or by its duly authorized representatives. A managing partner of the partnership may execute all acts of administration including the right to sue debtors of the partnership in the case of their failure to pay their obligation when it becomes demandable. (Tai Tong Chuache & Co. vs. Insurance Commission 158 SCRA 336 [1988]) FORM OF PARTNERSHIP CONRTRACT No special form is required for the validity or existence of the contract of partnership. 1. Where immovable property or real rights are contributed, the partnership contract shall be void unless: a. It is reduced to writing in a public instrument (Art. 1771). b. An inventory of the property contributed is made, signed by the parties and attached to the public instrument. (Art.1773). A partnership contract which states that the partnership is established to operate a fishpond is not rendered void because no inventory of the fishpond was made (where it did not clearly appear in the articles of partnership that the real property had been contributed by anyone of the partners). (Agad vs. Mabolo and Mabolo Agad and Co., 23 SCRA 1223[1968]) 2. Where the contract is by its terms not to be performed within a year from the making thereof, such partnership contract is covered by the statute of frauds and thus requires a written agreement to be enforceable. 3. Where the contract of partnership has a capital of 3,000 pesos or more, in money or property, it shall appear in a public instrument and must be recorded in the Office of the Securities and Exchange Commission. However, a partnership has a juridical personality even in case of failure to comply with this requirement. Requisites: 1. intention to create a partnership 2. common fund obtained from the contributions 3. joint interest in the profits Essential Features: 1. there must be a valid contract; 2. the parties must have legal capacity to enter into the contract; NOTE: With regard to number 2 (legal capacity of contracting parties), individuals not legally incapacitated to contract and partnerships may enter into a contract of partnership. With respect to corporations, the court held in Aurbach vs. Sanitary Wares Manufacturing Corporation 180 SCRA 130 [1989] that although a corporation cannot enter into a partnership contract, it may however engage in a joint venture with others. A joint venture has been generally understood to mean an organization formed for some temporary purpose. There is nothing against one corporation being represented by a natural or juridical person in a suit in court, for the true rule is that although a corporation has no power to enter a partnership, it may nevertheless enter into a joint venture with another where the nature of that venture is in line with the business authorized by the charter. (JM Tuazon and Co., Inc vs. Bolanos 95 PHIL 106 [1954])

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

151

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3. there must be mutual contribution of money, property and industry to a common fund NOTE: A partnership of a civil nature was formed because Gatchalian & Co. put up money to buy a sweepstakes ticket for the sole purpose of dividing equally the prize which they may win as they did in fact in the amount of P50,000. (Gatchalian vs. CIR 67 PHIL 666 [1939]) Where the father sold his rights over 2 parcels of land to his 4 children so they can build their residences, but the latter after 1 year sold them and paid the capital gains, they should not be treated to have formed an unregistered partnership and taxed corporate income tax on the sale and on dividend income tax on their shares of the profits from the sale. (Obillos Jr. vs. CIR [1985]) 4. the object must be lawful; and 5. the primary purpose must be to obtain profits KEY: CJP3 - D2AFT Partnership Co-ownership
1. Creation Always created by a Generally created by contract, either law, but may exist express or implied even without a contract 2. Juridical personality Has a juridical Has no juridical personality separate personality and distinct from that of each partner 3. Purpose Realization of Common enjoyment profits of a thing or right; does not necessarily involve sharing of profits 4. Duration No limitation upon An agreement to the duration is set keep the thing by law undivided for more than 10 years is not allowed 5. Transfer of interests A partner may not A co-owner can dispose of his dispose of his share individual interest in without the consent the partnership so of the others as to make the assignee a partner without unanimous consent 6. Power to act with third persons In the absence of A co-owner cannot stipulation to the represent the cocontrary, a partner ownership may bind the partnership 7. Dissolution Death or incapacity Death or incapacity of a partner results of a co-owner does in the dissolution of not necessarily partnership dissolve the coownership 8. Agency or representation As a rule, there is As a rule, there is no mutual agency mutual representation (although it is enough for a coowner to bring an action for ejectment against a stranger) 9. Profits May be stipulated Must always depend upon upon proportionate shares and any stipulation to the contrary is VOID (Art.485) 10. Form May be in any from No public instrument except when real is needed even if property is real property is the contributed (here a object of the copublic instrument is ownership required)

KEY: CNJ PMERET2 - FPG Partnership Corporation


1. Creation Created by mere Created by law agreement of the or by operation parties of law 2. Number of incorporators May be organized by at Requires at least two persons least five incorporators (except a corporation sole) 3. Commencement of juridical personality Acquires juridical Acquires personality from the juridical moment of execution of personality from the contract of the date of partnership issuance of the certificate of

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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incorporation by the Securities and Exchange Commission 4. Powers Partnership may Corporation can exercise any power exercise only authorized by the the powers partners (provided it is expressly not contrary to law, granted by law morals, good customs, or implied from public order, public those granted or policy) incident to its existence 5. Management When management is The power to do not agreed upon, every business and partner is an agent of manage its the partnership affairs is vested in the board of directors or trustees 6. Effect of mismanagement A partner as such can sue a co-partner who mismanages The suit against a member of the board of directors or trustees who mismanages must be in the name of the corporation

10. Term of existence partnership may be corporation may established for any not be formed period of time for a term in stipulated by the excess of 50 partners years extendible to not more than 50 years in any one instance 11. Firm name limited partnership is corporation may required by law to add adopt any name the word Ltd. To its provided it is name not the same as or similar to any registered firm name 12. Dissolution may be dissolved at any can only be time by any or all of the dissolved with partners the consent of the State 13. Governing Law governed by the governed by the contract and the Civil Corporation Code Code

7. Right of succession Partnership has no right of succession Corporation has right of succession

8. Extent of liability to third persons Partners are liable Stockholders are personally and liable only to subsidiarily (sometimes the extent of solidarily) for the shares partnership debts to subscribed by third persons them 9. Transferability of interest Partner cannot transfer Stockholder has his interest in the generally the partnership so as to right to transfer make the transferee a his shares partner without the without prior unanimous consent of consent of the all the existing partners other because the partnership stockholders is based on the principle because of delectus personarum corporation is not based on this principle

JOINT VENTURE It is hardly distinguishable from partnership, since their elements are similar, i.e. community of interest in the business, sharing of profits and losses, and a mutual right of control. The main distinction in common law jurisdiction is that partnership contemplates a general business with some degree of continuity, while joint venture is formed for the execution of a single transaction and is thus of temporary nature In Kilosbayan, Incorporated vs. Guingona, Jr 232 SCRA 110 [1994], the court defined a joint venture as an association of persons or companies jointly undertaking some commercial enterprise; generally all contribute assets and share risks. Its requisites are: a. A community of interest in the performance of the subject matter; b. A right to direct and govern the policy in connection therewith; c. Duty to share profits and losses.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

153

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NOTE: Under the Civil Code, a partnership may be particular or universal, and a particular partnership may have for its object a specific undertaking. Hence, a joint venture may be treated like any other contract, innominate in nature to be regulated and governed primarily by the stipulations of the parties thereto and suppletorily by the general provisions of the Civil Code on obligations and contracts, by rules governing the most analogous contracts (e.g. law on partnership), and by the customs of the place. Other Similar Contracts 1. Collaboration- the act of working together in a joint project. 2. Association- act of a number of persons uniting together for some special purpose or business. RULES TO DETERMINE EXISTENCE OF PARTNERSHIP (ART 1769) 1. GENERAL RULE: Persons who are not partners as to each other are not partners as to third persons. EXCEPTION: partnership by estoppel 2. Co-ownership of a property does not itself establish a partnership, even though the co-owners share in the profits derived from the incident of joint ownership. 3. Sharing of gross returns alone does not indicate a partnership, whether or not the persons sharing them have a joint or common right or interest in any property from which the returns are derived. 4. Receipt of share in the profits is a strong presumptive evidence of partnership. However, no such inference will be drawn if such profits were received in payment: (a) as a debt by installments or otherwise; (b) as wages of an employee or rent to a landlord; (c) as an annuity to a widow or representative of a deceased partner; (d) as interest on a loan, though the amount of payment vary with the profits of the business; and CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

(e) as the consideration for the sale of a goodwill of a business or other property by installments or otherwise. CLASSIFICATION OF PARTNERSHIP 1. as to object: a) universal partnership i. universal partnership of all
present property ii. universal partnership profits of

b) particular partnership 2. as to liability of partners: a) general partnership b) limited partnership 3. as to duration: a) partnership at will b) partnership with period 4. as to legality of existence: a) de jure partnership b) de facto partnership 5. as to representation to others: a) ordinary or real partnership b) ostensible or partnership by estoppel 6. as to publicity: a) secret partnership b) notorious or open partnership 7. as to purpose: a) commercial or trading b) professional or non-trading UNIVERSAL PARTNERSHIP 1. A universal partnership of all present property is one wherein the partners contribute all the property which actually belong to them to a common fund, with the intention of dividing the same among themselves, as well as all the profits which they may acquire therewith. In a universal partnership of all present property, the property which belongs to each of the partners at the time of the constitution of the partnership, becomes the common property of all the partners, as well as

fixed

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the profits which they may acquire therewith. A stipulation for the common enjoyment of any other profits may also be made; but the properties which the partners may acquire subsequently by inheritance, legacy or donation cannot be included in such stipulation, except the fruits thereof. Where the articles of partnership do not specify the nature of the universal partnership, whether it is one of present property or of profits only, it will be presumed that the parties intended merely a partnership of profits. NOTE: Future properties cannot be contributed. Thus, property subsequently acquired by (1) inheritance, (2) legacy or (3) donation cannot be included by stipulation except the fruits thereof. 2. A universal partnership of profits is one which comprises all that the partners may acquire by their industry or work during the existence of the partnership and the usufruct of movable or immovable property which each of the partners may posses at the time of the celebration of the contract. Movable or immovable property which each of the partners may posses at the time of the celebration of the contract shall continue to pertain exclusively to each, only the usufruct passing to the partnership. NOTE: Persons who are prohibited from giving each other any donation or advantage cannot enter into a universal partnership. (Art. 739, Art. 87, Family Code) Profits acquired by their partners through chance (i.e. lottery) without employment of any physical or intellectual efforts are not included. PARTICULAR PARTNERSHIP A particular partnership is one which has for its object determinate things, their use and fruits, or a specific undertaking, or the exercise of a profession or vocation.

GENERAL PARTNERSHIP A partnership consisting of general partners who are liable pro rata and subsidiarily and sometimes solidarily with their separate property for partnership debts. LIMITED PARTNERSHIP One formed by two or more persons having as members one or more general partners and one or more limited partners, the latter not being personally liable for the obligations of the partnership. PARTNERSHIP AT WILL A partnership wherein no time is specified and is not formed for a particular undertaking or venture and which may be terminated at anytime by mutual agreement of the partners, or by the will of anyone partner alone; or one for a fixed term or particular undertaking but has been continued by the partners after termination of such term or particular undertaking without express agreement. PARTNERSHIP WITH A FIXED TERM A partnership wherein the term for which the partnership is to exist is fixed or agreed upon or one formed for a particular undertaking, and upon the expiration of the term or completion or the particular enterprise, the partnership is dissolved, unless continued by the partners. OTHER KINDS OF PARTNERSHIP 1. De Jure Partnership- one which has complied will all the legal requirements for its establishment. 2. De Facto Partnership- one which has failed to comply with all the legal requirements for its establishment. 3. Ordinary or real partnership- one which actually exists among the partners and also as to third persons. 4. Ostensible partnership or partnership de facto- one which in reality is not a partnership, but is considered a partnership only in relation to those who, by their conduct or admission, are precluded to deny or disprove its existence.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

155

MEMORY AID IN CIVIL LAW


5. Secret partnership- one wherein the existence of certain persons as partners is not avowed or made known to the public by any of the partners. 6. Open or notorious partnership- one whose existence is avowed or made known to the public by the members of the firm. 7. Commercial or trading partnershipone formed for the transaction of business. 8. Professional or non-trading partnership- one formed for the exercise of a profession. CLASSIFICATION OF PARTNERS 1. as to CONTRIBUTION: a) Capitalist partner- one who contributes money or property to the common fund. b) Industrial partner- one who contributes only his industry or personal service. 2. as to LIABILITY: a) General partner- one whose liability to third persons extends to his separate property, he may either be a capitalist or industrial partner. b) Limited partner- one whose liability to third persons is limited to his capital contribution. 3. as to MANAGEMENT: a) Managing partner- one who manages the business or affairs of the partnership; he may be appointed in the articles of partnership or after constitution of the partnership. b) Silent partner- one who does not take any active part in the business although he may be known to be a partner. c) Liquidating partner- one who takes charge of the winding up of the partnership affairs upon dissolution. 4. Miscellaneous: a) Ostensible partner- one who takes active part and known to the public as a partner in the business, whether or not he has actual interest in the firm. CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

b) Secret partner- one who takes active part in the business by is not known to be a partner by outside parties nor held out as a partner by the other partners. c) Dormant partner- one who does not take active part in the business and is not known or held out as partner. KEY: CP2L Capitalist Partner Industrial Partner
1. as to contribution contributes money contributes his or property industry (mental or physical) 2. as to prohibition to engage in other business Cannot generally cannot engage in engage in the same any business for or similar enterprise himself as that of his firm 3. as to profits 1. shares in the receives a just profits according and equitable to agreement share thereon; 2. if none, pro rata to his contribution 4. as to losses 1. first, the exempted as to stipulation as to losses (as losses; between 2. if none, the partners); but is agreement as to liable to third profits; persons, without 3. if none, pro rata prejudice to to contribution reimbursement from the capitalist partners

OBLIGATIONS OF PARTNERS AMONG THEMSELVES: I. Obligation with respect to contribution of property a) To contribute what had been promised b) To answer for eviction in case the partnership is deprived of determinate property contributed

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c) To answer to the partnership for the fruits of the property the contribution of which is delayed, from the date they should have been contributed to the time of actual delivery d) To preserve the property with the diligence of a good father of a family pending delivery to the partnership e) To indemnify the partners for any damages caused to it by the retention of the same or by delay in its contribution. II. Obligations with respect to contribution of money and money converted to personal use a) To contribute on the date due the amount he has undertaken to contribute to the partnership b) To reimburse any amount he may have taken from the partnership coffers and converted to his own personal use c) To pay the agreed or legal interest, if he fails to pay his contribution on time or in case he takes any amount from the common fund and converted to his own personal use d) To indemnify the partnership for the damages caused to it by the delay in the contribution or the conversion of any sum for his personal benefit. III. Obligation Not to Engage in Other Business for Himself 1. Industrial partner- cannot engage in any business for himself unless the partnership expressly permits him to do so. The other partners have the remedy of either excluding the erring partner from the firm or of availing themselves of the benefits which he may have obtained. Note: The prohibition is absolute and applies whether the industrial partner is to engage in the same business in which the partnership is engaged or in any kind of business. It is clear that the reason for the prohibition exists in both cases, which is to prevent any conflict of interest between the industrial

partner and the partnership and to insure faithful compliance by said partner with his prestation (Evangelista & Co. vs. Abad Santos, 51 SCRA 416, 1973) 2. Capitalist partner- The prohibition extends only to any operation which is of the same kind of business in which the partnership is engaged unless there is a stipulation to the contrary. IV. Obligation to Contribute Additional Capital As a general rule, a capitalist partner is not bound to contribute to the partnership more than what he agreed to contribute but in case of an imminent loss of the business, and there is no agreement to the contrary, he is under obligation to contribute an additional share to save the venture. If he refuses to contribute, he shall be obliged to sell his interest in the partnership to other partners. V. Obligation of Managing Partner who Collects Debt Where a person is separately indebted to the partnership and to the managing partner at the same time, any sum received by the managing partner shall be applied to the two credits in proportion to their amounts, except where he received it entirely for the account of the partnership, in which case the whole sum shall be applied to the partnership credit only. Requisites for the application of the rule: 1) There exists two debts, one where the collecting partner is creditor, the other, where the partnership is creditor. 2) Both debts are demandable 3) The partner who collects is authorized to manage and actually manages the partnership. VI. Obligation of Partner Who Receives Share in Partnership Credit A partner who receives, in whole or in part, his share in the partnership, when the others have not collected

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

157

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theirs, shall be obliged, if the debtor should thereafter become insolvent, to bring to the partnership capital what he received even though he may have given receipt for his share only. Requisites for application of rule: 1) A partner has received, in whole or in part, his share in the partnership credit 2) The other partners have not collected their shares. 3) The partnership debtor has become insolvent. VII. Obligation of Partner for Damages to Partnership Every partner is responsible to the partnership for damages suffered by it through his fault. He cannot compensate them with the profits and benefits which he may have earned for the partnership by his industry. VIII. Duty to Render Information Partners shall render on demand true and full information of all things affecting the partnership to any partner or the legal representative of any deceased partner of any partner under legal disability. IX. Obligation to account for any benefit and hold as trustee unauthorized personal profits Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, liquidation of the partnership or form any use by him of its property. RIGHTS OF A PARTNER: 1. Property rights of a partner a) His rights in the specific partnership property b) His interest in the partnership c) His right to participate in the management 2. Right to reimbursement for amounts advanced to the partnership and to indemnification for risks in consequence of management CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

3. Right to associate with another person in his share 4. Right of access and inspection of partnership books 5. Right to true and full information of all things affecting the partnership 6. Right to a formal account of partnership affairs under certain circumstances NOTE: The ten year period to demand an accounting by a partner begins at the dissolution of the partnership. 7. Right to have partnership dissolved under certain conditions. RULES FOR DISTRIBUTION OF PROFITS AND LOSSES 1. Distribution of profits a) According to their agreement (but not inequitously to defeat Art.1799) b) If none, 1) Share of capitalist partner shall be in proportion to his capital contribution 2) Industrial partner shall receive such share as may be just and equitable under the circumstances 2. Distribution of losses a) According to their agreement as to losses (but not inequitously to defeat Art.1799) b) If none, according to their agreement as to profits c) If none, in proportion to his capital contribution, but the purely industrial partner shall not be liable for the losses A stipulation excluding a partner from any share in the profits or losses is VOID (Article 1799) Article 1797(2) excludes an industrial partner from losses. Thus, a stipulation excluding an industrial partner from losses is VALID, but he is NOT exempted from liability insofar as third persons are concerned. NOTE: In general, LIABILITY refers to responsibility towards third persons, and LOSSES refers to responsibility as among partners

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CONTRACT OF SUB-PARTNERSHIP One formed between a member of a partnership and a third person for a division of profits owing to him from the partnership enterprise. It is a partnership within a partnership distinct and separate from the main or principal partnership. NOTE: In the absence of unanimous consent of all the partners, a subpartner does not become a member of the partnership. Hence, a sub-partner does not acquire the rights of a partner nor is he liable for its debts PROPERTY RIGHTS OF A PARTNER 1. Right to specific partnership property contemplates tangible property The specific partnership property belongs to the partnership as a separate juridical personality. The partners have no actual interest in it until after dissolution. equal right with other partners to possess specific partnership property for partnership purposes not assignable, except in connection with the assignment of rights of all partners in the same property not subject to attachment or execution, except on a claim against the partnership not subject to legal support NOTE: Any immovable property or an interest therein may be acquired in the partnership name. The title so acquired may be conveyed only in the partnership name subject to the provisions of Article 1819 of the Civil Code. 2. Interest in the partnership share in the profits and surplus A partner actually owns his respective share. Effects of conveyance by a partner of his interest in the partnership 1. conveyance of his whole interest partnership may either remain or be dissolved 2. assignee does not necessarily become a partner

3. assignee cannot interfere in the management or administration of the partnership business or affairs 4. assignee cannot demand information, accounting and inspection of the partnership books Remedies of separate judgment creditor of a partner Application for a charging order after securing judgment on his credit to subject the interest of the debtor partner with payment of unsatisfied amount of the judgment debt Redemption of interest charged 1. General partnership a) with separate property of a partner; or b) with partnership property, with the consent of all the partners whose interests are not so charged or sold 2. Limited partnership (interest of limited partner) a) with separate property of any general partner but NOT with partnership property 3. Right to management participate in the

MANAGEMENT OF PARTNERSHIP I. When the manner of management has been provided for in the partnership agreement A. When a managing partner has been appointed 1) Appointment in the articles of partnership a. Power is irrevocable without just or lawful cause
i. to remove him for JUST cause, vote of partners representing controlling interest is necessary to remove him without just cause or for an UNJUST cause, there must be unanimity including his own vote

ii.

b. Extent of power
i. if he acts in good faith, he may do all acts of ADMINISTRATION, despite opposition of his partners ii. if in bad faith, he cannot.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

159

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2) Appointment other than in the articles of partnership a. Power to act may be revoked at any time, with or without just cause b. Extent of power: as long as he remains manager, he can perform all acts of administration, but if others oppose and he persists, he can be removed B. When two or more managing partners have been entrusted with the management of partnership 1)Without specification of their respective duties and without stipulation requiring unanimity of action Each managing partner may execute all acts of administration If any of the managing partners should oppose, a) Decision of the majority of the managing partners shall prevail b) In case of a tie, decision of the partners representing the controlling interest shall prevail 2) With stipulation unanimity of action requiring b) Unanimous consent required for alteration of immovable property OBLIGATIONS OF PARTNERS TO THIRD PERSONS I. Liability for contractual obligations (ART 1816) 1. All partners, including industrial partners, are personally liable with all their property. Their individual liability is pro rata and subsidiary, unless otherwise stipulated 2. Liability of partnership for acts of partners a) Acts for apparently carrying on in the usual way the business of the partnership Act binds the partnership. Partnership is not bound if:
i. ii. acting partner has in fact no authority and the third person knows that the acting partner has no authority

b) Acts of Strict Dominion or Ownership (acts which are not apparently for carrying on in the usual way the business of the partnership) Act does not bind the partnership. Partnership is bound if:
i. ii. the act is authorized by all the partners; or they have abandoned the business

Unanimous consent of all the managing partners shall be necessary for the validity of the acts and absence or inability of any managing partner cannot be alleged When there is an imminent danger of grave or irreparable injury to the partnership, partner may act alone without the consent of the partner who is absent or under disability II. When manner of management has not been agreed upon a) All partners shall be considered managers and agents CIVIL LAW COMMITTEE

c) Acts in contravention of a restriction on authority


i. Partnership is not liable to third persons having actual or presumptive knowledge of the restrictions

II. Liability arising from partners tort (ART 1822) or Breach of Trust (ART 1823) 1. Where, by any wrongful act or omission of any partner acting in the ordinary course of business of the partnership or with authority of his co-partners, loss or injury is caused to any person,

CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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not being a partner in the partnership (Article 1822) 2. Where one partner, acting within the scope of his apparent authority, receives money or property of a third person and misapplies it (Article 1823) 3. Where the partnership, in the course of its business, receives money or property and it is misapplied by any partner while it is in the custody of the partnership (Article 1823) NOTE: All partners are solidarily liable with the partnership for any penalty or damage arising from a partnership tort or breach of trust III. Criminal liability of partnership Partnership liability does not extend to criminal liability where the wrongdoing is regarded as individual in character. But where the crime is statutory, especially when it involves a fine rather than imprisonment, criminal liability may be imposed LIABILITY OF STOCKHOLDERS IN A DEFECTIVELY FORMED CORPORATION It is ordinarily held that persons who attempt but fail to form a corporation and carry on business under the corporate name occupy the position of partners inter se. Thus where persons associate themselves together under articles to purchase property to carry on a business, and their organization is so defective as to come short of creating a corporation within the statute, they become in legal effect partners inter-se. Exception: One who takes no part except to subscribe for stock in a proposed corporation, which was never legally formed, does not become a partner with other subscribers who engage in business under the name of the pretended corporation, so as to be liable as such in an action for settlement of the alleged partnership and contribution. (Pioneer Insurance & Surety Corporation vs. Court of Appeals, 175 SCRA 668 [1989].)

PRINCIPLE OF DELECTUS PERSONARUM A rule inherent in every partnership wherein no one can become a member of the partnership without the consent of all the partners. NOTE: This element of delectus personae is true only in case of a general partner, but NOT as regards a limited partner. MUTUAL AGENCY Partnership is a contract of mutual agency, each partner acting as a principal on his own behalf, and as an agent of his co-partners and the partnership. Requisites When A Partner Binds The Partnership 1. when he is expressly or impliedly authorized 2. when he acts in behalf and in the name of the partnership PARTNERSHIP BY ESTOPPEL Arises when a person, by words spoken or written or by conduct, represents himself or consents to another representing him to anyone, as partner in an existing partnership, or with one or more persons not actual partners; he is liable to any such person to whom such representation has been made, who has, on the faith of such representation given credit to the actual or apparent partnership. (Art 1825) NOTE: Art. 1825 does not create a partnership as between the alleged partners. A contract, express or implied is essential to the creation of partnership. The law considers them partners and the association as a partnership insofar as it is favorable to third persons. However, partnership liability is created only in favor of persons who on the faith of such representation given credit to the actual or apparent partnership

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

161

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DISSOLUTION Change in the relation of the partners caused by any partner ceasing to be associated in carrying on the business. (Article 1828) It is the point in time when the partners cease to carry on the business together. It represents the demise of a partnership. NOTE: The dissolution of a partnership must not be understood in the absolute and strict sense so that at the termination of the object for which it was created the partnership is extinguished. (Testate of Mota vs. Serra, 47 PHIL 464, 1926.) Dissolution does not automatically result in the termination of the legal personality of the partnership, nor the relations of the partners among themselves who remain as co-partners until the partnership is terminated. WINDING UP Process of settling the partnership business or affairs after dissolution. TERMINATION Point in time when all partnership affairs are wound up or completed and is the end of the partnership life. CAUSES OF DISSOLUTION 1. Extrajudicial dissolution (ART 1830) - the parties may agree to expand the grounds provided under Art 1830 but NOT to delimit them. The causes enumerated are as follows: a. Without violation of the agreement between the partners
i. By the termination of the definite term or particular undertaking specified in the agreement; By the express will of any partner, who must act in good faith, when no definite term or particular undertaking is specified; By the express will of all the partners who have not assigned their interest or suffered them to be charged for their separate debts, either before or after the termination of any specified term or particular undertaking; By the expulsion of any partner from the business bona fide in accordance with such power conferred by the agreement between the partners;

iv.

b. In contravention of the agreement between the partners, where the circumstances do nor permit a dissolution under any other provision of this article by the express will of any partner at any time. c. By any event which makes it unlawful for the business of the partnership to be carried on or for the members to carry it on in partnership. d. When a specific thing, a partner had promised to contribute, perishes before its delivery. Or where the partner only contributed the use or enjoyment of the thing and has reserved ownership thereof, its loss, before or after delivery dissolves the partnership. e. By the death of any partner; f. By the insolvency of any partner or the partnership; g. By the civil interdiction of any partner; 2. Judicial dissolution (ART 1831) when so decreed by the court, the presiding judge may place the partnership under receivership and direct an accounting to be made towards winding up the partnership affairs. On application by or for any partner, the court shall decree a dissolution whenever: a. A partner has been declared insane in any judicial proceeding or is shown to be of unsound mind; b. A partner becomes in any other way incapable of performing his part of the partnership contract; c. A partner has been guilty of such conduct as tend to affect

ii.

iii.

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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prejudicially the carrying on of the business; d. A partner willfully or persistently commits a breach of the partnership agreement, or otherwise so conducts himself in matters relating to the partnership business that it is not reasonably practicable to carry on the business in partnership with him. e. The business of the partnership can only be carried on in a loss; f. Other circumstances render a dissolution equitable. On application of the purchaser of a partners interest under Article 1813 or 1814: a. After the termination of the specified term or particular undertaking; b. At any time if the partnership was a partnership at will when the interest was assigned or when the charging order was issued. EFFECTS OF DISSOLUTION A. As to partners authority to act for the partnership Dissolution terminates all authority of any partner to act for the partnership 1. Acts necessary to wind up partnership affairs 2. Acts necessary to complete transactions begun but not then finished Note: Thus, dissolution terminates the ACTUAL authority of a partner to undertake NEW business for the partnership QUALIFICATIONS TO THE GENERAL RULE: 1. With respect to the partners (in so far as partners themselves are concerned) a) Dissolution is not by act, insolvency or death of a partner: General Rule applies. Hence, dissolution terminates the ACTUAL authority of a partner to undertake NEW business for the partnership

b) Dissolution is by act, insolvency or death of a partner: Authority of partners inter se to act for the partnership is NOT deemed terminated. Thus, each partner is liable to his co-partners for his share of any liability created by any partner acting for the partnership as if the partnership has not been dissolved 1) The cause of dissolution is the ACT of a partner and the acting partner had KNOWLEDGE of such dissolution 2) The cause of dissolution is the DEATH or INSOLVENCY of a partner and the acting partner had KNOWLEDGE or NOTICE of such dissolution 2. With respect to persons not partners (third persons) a) When partnership is bound to third persons after dissolution 1) Act appropriate for winding up partnership affairs 2) Act appropriate for completing unfinished transactions 3) Completely NEW transaction which would bind the partnership if dissolution had not taken place provided: the other party is in good faith, meaning: i. Previous creditor (had previously extended credit) AND he had NO KNOWLEDGE or NOTICE of the dissolution, OR ii. NOT a previous creditor AND the fact of dissolution had not been published in a newspaper of general circulation b) When partnership is NOT bound to third persons after dissolution 1) Where partnership was dissolved because it was unlawful to carry on the business, except when the act is for winding up

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

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2) Where the acting partner in the transaction has become insolvent 3) Where the partner is unauthorized to wind up, except if the transaction is with third persons in good faith (under the same circumstances as defined above) 4) Where act is NOT appropriate for winding up partnership affairs or for completing unfinished transactions 5) completely NEW transaction which would bind the partnership if dissolution had not taken place with third persons in bad faith B. As to partners existing liabilit y Dissolution does not automatically discharge the existing liability of any partner A partner may be relieved from all existing liabilities upon dissolution ONLY by an agreement between: 1. Partner concerned 2. Other partners 3. Partnership creditors Note: The consent of the partnership creditors and the other partners to the novation may be implied from their conduct. RIGHTS OF A PARTNER UPON DISSOLUTION 1. Where dissolution is NOT in contravention of the partnership agreement a) To have partnership property applied to discharge partnership liabilities b) To receive in cash his share of the surplus 2. Where dissolution is in contravention of the partnership agreement a) Rights of a partner who has not caused the dissolution wrongfully 1) To have partnership property applied to discharge partnership liabilities CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

2) To receive in cash his share of the surplus 3) To be indemnified for damages caused by the partner guilty of the wrongful dissolution 4) To continue the business in the same name during the agreed term of the partnership, by themselves or jointly with others 5) To possess partnership property should they decide to continue the business b) Rights of a partner who has wrongfully caused the dissolution 1) If the business is not continued by the other partners
i. To have partnership property applied to discharge partnership liabilities To receive in cash his share of the surplus less damages caused by his wrongful dissolution To have the value of his interest in the partnership at the time of the dissolution, surplus less damages caused by his wrongful dissolution to his co-partners, ascertained and paid in cash or secured by a bond approved by the court; AND To be released from all existing and future liabilities

ii.

2) If the business is continued


i.

ii.

NOTE: The value of the goodwill of the business is not considered in ascertaining the value of the interest of the guilty partners. RIGHTS OF A PARTNER WHERE PARTNERSHIP CONTRACT IS RESCINDED ON THE GROUND OF FRAUD OR MISREPRESENTATION (NOTE: The following are the rights of the partner entitled to rescind) 1. Right of LIEN on, or RETENTION of, the surplus of partnership property after satisfying partnership liabilities

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for any sum of money paid or contributed by him 2. Right of SUBROGATION in place of the partnership creditors after payment of partnership liabilities; and 3. Right of INDEMNIFICATION by the guilty partner against all debts and liabilities of the partnership MANNER OF WINDING UP 1. Extrajudicial by the partners themselves without the intervention of the court 2. Judicial under the control and direction of the court upon proper cause shown by any partner, his legal representative or his assignee PERSONS AUTHORIZED TO WIND UP 1. partners designated by the agreement 2. in the absence of such agreement, all partners who have not wrongfully dissolved the partnership 3. legal representative of last surviving partner not insolvent ORDER OF PAYMENT IN WINDING UP 1. General Partnership (ART 1839 (2)) a) those owing to creditors other than partners b) those owing to partners other than for capital or profits c) those owing to partners in respect of capital d) those owing to partners in respect of profits 2. Limited Partnership (ART 1863) a) those owing to creditors, except those to limited partners on account of their contribution, and to general partners b) those owing to limited partners in respect of their share of the profits and other compensation by way of income c) those owing to limited partners in respect of their capital contributions d) those owing to general partners other than for capital and profits e) those owing to general partners in respect of profits f) those owing to general partners in respect of capital

DOCTRINE OF MARSHALLING OF ASSETS (Article 1839(8)) 1. Partnership creditors have preference in partnership assets 2. Separate or individual creditors have preference in separate or individual properties 3. Anything left from either goes to the other PARTNERS LIEN Right of every partner to have the partnership property applied to discharge partnership liabilities AND to have the surplus assets, if any, distributed in cash to the respective partners, after deducting what may be due to the partnership from them as partners. LIMITED PARTNERSHIP One formed by two or more persons having as members one or more general partners and one or more limited partners, the latter not being personally liable for partnership debts. NOTE: The Supreme Court, declared a firm to be a general partnership in a case where it appears that the inclusion of Ltd. (limited) in the firm was only a subterfuge resorted to by the partners in order to evade liability for possible losses, while assuming their enjoyment of advantages to be derived from the relation. Jo Chung Cang vs. Pacific Commercial Co. 45 PHIL 142 [1923]). In other words if the parties intended a general partnership, they are general partners although their purpose is to avoid the creation of such a relation. Characteristics of Limited Partnership 1. Limited partnership is formed by substantial compliance in good faith with the statutory requirements 2. One or more general partners control the business and are personally liable to creditors 3. One or more limited partners contribute to the capital and share in the profits but do not participate in the management of the business and are not personally liable for

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

165

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partnership obligations beyond the amount of their capital contributions 4. The limited partners may ask for the return of their capital contributions under the conditions prescribed by law 5. The partnership debts are paid out of the common fund and the individual properties of the general partners Limited Partner/Partnership General Partner/ Partnership
5. Transferability of interest Limited partners interest is freely assignable, with assignee acquiring all the rights of the limited partner subject to certain qualifications General partners interest in the partnership may not be assigned as to make the assignee a new partner without the consent of the other partners, although he may associate a third person with him in his share 6. Inclusion of partners name in the firm name Name of a general partner may appear in the firm name

1. Extent of liability Limited partners General liability extends only to partner is his capital contribution personally liable for partnership obligations 2. Right to participate in the management of partnership Limited partner has no General share in the partners have management of a an equal right limited partnership and in the renders himself liable to management of partnership creditors as the business a general partner if he (when the takes part in the control manner of of the business management has not been agreed upon) 3. Contribution Limited partner must General contribute cash or partner may property to the contribute partnership but not money, services property or industry to the partnership 4. Proper party to proceedings by or against the partnership Limited partner is not a proper party to proceedings by or against a partnership Unless: 1. he is also a general partner, or 2. where the object of the proceeding is to enforce a limited partners right against or liability to the partnership General partner is the proper party to proceedings by or against a partnership

As a general rule, name of a limited partner must not appear in the firm name

7. Prohibition to engage in other business No such prohibition in the case of a limited partner who is considered a mere contributor to the partnership General partner is prohibited from engaging in a business which is of the SAME kind of business in which the partnership is engaged, if he is a capitalist partner, or in ANY of business for himself if he is an industrial partner

8. Effect of retirement, death, insanity or insolvency Retirement, death, insanity or insolvency of a limited partner does not dissolve the partnership for his executor or administrator shall have the rights of a limited partner for the purpose of selling his estate Retirement, death, insanity or insolvency of a general partner dissolves the partnership

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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9. Creation Limited partnership is General created by the members partnership, as after substantial a general rule, compliance in good may be faith with the constituted in requirements set forth any form by by law contract or conduct of the partnership 10. Members of the partnership Composed of one or Composed only more general partners of general and one or more limited partners partners 11. Firm name Firm name must be No such followed by the word requirement Limited 12. Rules governing dissolution and winding up Governed by Art. 1839 Governed by Art. 1863

As to third persons or creditors guilty of estoppel, the firm shall not be treated as a general partnership despite lack of substantial compliance to the requirements of a limited partnership. If creditors deal with the firm as a limited partnership, they will be estopped from insisting that there is no such partnership, or that the terms of the partnership were not sufficiently stated in the notice of its formation. (40 Am. Jur. 476.) CONTENTS OF THE CERTIFICATE OR ARTICLES OF LIMITED PARTNERSHIP 1. Name of the partnership, adding thereto the word limited; 2. Character of the business; 3. Location of the principal place of business; 4. Name and place of residence of each member, general and limited partners being respectively designated; 5. Term for which the partnership is to exist; 6. Amount of cash and description of and the agree value of the other property contributed by each limited partner; 7. Additional contributions to be made by each limited partner and the times at which or events on the happening of which they shall be made; 8. Time, if agreed upon, when to contribution of each limited partner is to be returned; 9. Share in the profits or other compensation by way of income which each limited partner shall receive by reason of his contribution; 10. Right, if given, of a limited partner to substitute an assignee as contributor in his place, and the terms and conditions of the substitution; 11. Right, if given, of the partners to admit additional partners; 12. Right, if given, of one or more of the limited partners to priority over other limited partners, as to contributions or as to compensation by way of income, and the nature of such priority;

ESSENTIAL REQUIREMENTS FOR FORMATION OF LIMITED PARTNERSHIP 1. A certificate or articles of limited partnership which states the matters enumerated in Article 1844, which must be signed and sworn; 2. Such certificate must be filed for record in the Office of the Securities and Exchange Commission. NOTE: A strict compliance with the legal requirements is not necessary. It is sufficient that there is substantial compliance in good faith. If there is no substantial compliance, the partnership becomes a general partnership as far as third persons are concerned, in which all the members are liable as general partners. (Jo Chung Cang vs. Pacific Commercial Co., 45 PHIL 142 [1923].) However, a firm which fails to substantially comply with the formal requirements of a limited partnership is a general partnership only as to its relations to third persons. The firm is a limited partnership, subject to all rules applicable to such partnership; and as between the partners they are bound by their agreement; and that all the limited partners relations to his co-partners and their obligations to him growing out of the relation remain unimpaired.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

167

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13. Right, if given, of the remaining general partner or partners to continue the business on the death, retirement, civil interdiction, insanity or insolvency of a general partner; and 14. Right, if given, of a limited partner to demand and receive property other than cash in return of his contribution. LIABILITY FOR FALSE STATEMENT IN CERTIFICATE Any partner to the certificate containing a false statement is liable to one who suffers loss by reliance on such certificate provided the following requisites are present: 1. He knew the statement to be false at the time he signed the certificate, or subsequently having sufficient time to cancel or amend it or file a petition for its cancellation or amendment, he failed to do so; 2. The person seeking to enforce liability has relied upon the false statement in transacting business with the partnership; 3. The person suffered a loss as a result of reliance upon such false statement. MANAGEMENT OF LIMITED PARTNERSHIP A general partner in a limited partnership is vested with the entire control of the firms business and has all the rights and powers and is subject to all the liabilities and restrictions of a partner in a general partnership. A general partner in a limited partnership however has no authority, without written consent or ratification of all limited partners, to: 1. Do any act in contravention of the certificate; 2. Do any act which would make it impossible to carry on the ordinary business of the partnership; 3. Confess judgment against the partnership; CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

4. Possess partnership property, or assign their rights in specific partnership property, for other that a partnership purpose; 5. Admit a person as a general partner; 6. Admit a person as a limited partner, unless the right to do so is given in the certificate 7. Continue the business with the partnership property on the death, retirement, insanity, civil interdiction or insolvency of a general partner, unless the right to do so is given in the certificate. A limited partner is liable as a general partner for the firms obligations if he takes part or interferes in the management of the business. RIGHTS OF A LIMITED PARTNER KEY: BIF2AR2 1. To have the partnership books kept at the principal place of business of the partnership 2. To inspect, at a reasonable hour, partnership books and copy any of them 3. To demand true and full information of the things affecting the partnership 4. To demand a formal account of the partnership affairs whenever circumstances render it just and reasonable 5. To ask for dissolution and winding up by decree of court 6. To receive a share in the profits or other compensation by way of income provided: that the partnership assets are in excess of partnership liabilities after such payment 7. To receive the return of his contribution provided: a) All the liabilities of the partnership have been paid OR the partnership assets are sufficient to pay partnership liabilities b) The consent of all the members (general and limited partners) has been obtained

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When the return of the contribution may be rightfully demanded: 1) On the dissolution of the partnership 2) Upon the arrival of the date specified in the certificate for the return 3) After he has given 6 months notice in writing to all other partners, if no time is specified in the certificate their for the return of the contribution or for the dissolution of the partnership c) The certificate is cancelled or so amended as to set forth the withdrawal or reduction LIABILITIES OF A LIMITED PARTNER 1. Liability for unpaid contribution a) For the difference between his contribution as actually made and that stated in the certificate as having been made; AND b) For any unpaid contribution which he has agreed in the certificate to make in the future at the time and the conditions stated in the certificate 2. Liability as trustee a) Specific property stated in the certificate as contributed by him, but which was not contributed or which has been wrongfully returned; AND b) Money or other property wrongfully paid or conveyed to him on account of his contribution NOTE: These liabilities can be waived or compromised only by consent of all the members; but a waiver or compromise shall NOT affect the right of a creditor of a partnership who extended credit or whose claim arose after the filling and before the cancellation or amendment of the certificate, to enforce such liabilities.

SUBSTITUTED LIMITED PARTNER A person admitted to all the rights of a limited partner who has died of has assigned his interest in the partnership. RAL RULE: He has all, the rights and powers, and is subject to all the restrictions and liabilities of his assignor. Those liabilities which he was ignorant at the time he became a limited partner AND which could not be ascertained from the certificate. REQUISITES IN ORDER THAT THE ASSIGNEE MAY BECOME A SUBSTITUTED LIMITED PARTNER 1. All the members must consent to the assignee becoming a substituted limited partner, OR the limited partner, being empowered by the certificate must give the assignee the right to become a limited partner 2. The certificate must be amended in accordance with Art.1865 3. The certificate as amended must be registered in the Securities and Exchange Commission ALLOWABLE TRANSACTIONS OF A LIMITED PARTNER Being merely a contributor to the partnership is not prohibited from: 1. granting loans to the partnership 2. transacting other business with the partnership 3. receiving a pro rata share of the partnership assets with the general creditors if he is NOT also a general partner NOTE: In transacting a business with the partnership as a non-member, the limited partner is considered a nonpartner creditor PROHIBITED TRANSACTIONS OF A LIMITED PARTNER 1. receiving or holding as collateral security any partnership property; or 2. receiving any payment, conveyance, or release from liability if it will prejudice the partnership creditors

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

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NOTES: Violation of the prohibition will give rise to the presumption that it has been made to defraud partnership creditors The prohibition is NOT ABSOLUTE, there is no such prohibition if the partnership assets are sufficient to discharge partnership liabilities to persons not claiming as general or limited partners.
3. Agent can return the object in case he is unable to sell the same 4. Bound to act according to the instructions of his principal. 3. the buyer, as a rule, cannot return the object sold 4. The buyer can deal with the thing as he please being the owner.

AGENCY
CONTRACT OF AGENCY A contract whereby a person (agent) binds himself to render some service or to do something in representation or on behalf of another (principal), with the consent or authority of the latter. (Article 1868) The parties to the contract are: 1. Principal- one whom the agent represents and from whom he derives authority; he is the person represented. 2. Agent- one who acts for and represents another; he is the person acting in a representative capacity. AGENCY
1. Principle of representation is applied. 2. Extinguished at will of the principal. 3. Agent exercise discretionary power to attain an end for which he was appointed. 4. Preparatory Contract

PURPOSE OF AGENCY The purpose of agency is to extend the personality of the principal through the facility of the agent. It enables the activity of man which is naturally limited in its exercise by the impositions of his physiological conditions to be legally extended by permitting him to be constructively present in many different places and to perform diverse juridical acts and carry on many different activities through another when physical presence is impossible or inadvisable at the same time. (11 Manresa 434) ELEMENTS OF AGENCY A. Consent Any person or entity having juridical capacity and capacity to act and not otherwise disqualified, may enter into an agency. But as regards the party with whom the agent acts or contracts, the legal capacity of the principal rather than the agent, is of the greater import. B. Object the services to be undertaken by the agent may cover all acts pertaining to a business of the principal (general agency) or one or more specific transactions (special agency) the extent of the agents authority to act, whether it be a general or a special agency, depends on how the agency is couched. C. Cause May be onerous or gratuitous but presumed for compensation NOTE: The agent may not be deprived of his right to compensation by an unjustified revocation of the agency

LEASE OF SERVICES
1. Principle of employment is applied. 2. Concurrence of parties is necessary. 3. Employee exercise ministerial functions only. 4. Principal Contract

AGENCY TO SELL
1. Agent receives the goods as the goods of the principal. 2. Agent delivers the proceeds of the sale

SALE
1. The buyer receives goods as owner 2. Buyer pays the price.

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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KINDS OF AGENCY 1. as to manner of creation a) express- one where the agent has been actually authorized by the principal, either orally or in writing; b) implied- one which is implied from the
i. acts of the principal- from his silence or lack of action, or his failure to repudiate the agency knowing that another person is acting on his behalf without authority. Acts of the agent- when he carries out the agency, or from his silence or inaction according to the circumstances.

ACTS WHICH MAY BE DELEGATED TO AN AGENT person, he may do thru another. 1. Personal actsif personal performance is required the doing of an act by a person on behalf of another does not constitute performance by the latter. a) Voting during an election; b) Making a will; c) Making statements which are required to be done under oath; d) A member of the board of directors or trustees in a corporation cannot validly act as such by proxy e) An agent cannot delegate to a sub-agent the performance of acts which he has been appointed to perform in person. 2. Criminal Acts or Acts not allowed by law- There can be no agency in the perpetration of a crime or unlawful act. Examples: a) An alien principal using an agent to acquire lands; b) Persons who, because of their position and relation with the persons under their charge or property under control, are prohibited from acquiring said property and cannot do so through an agent. FORM OF AGENCY Agency may be express or implied from the acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority. (Article 1869) NOTE: In an implied agency, the principal is still bound by the acts of the agent just as in case of express agency There are no formal requirements governing the appointment of an agent. The agents authority may be oral or written. It may be in a public or private writing. When the law requires a specific form

ii.

2. as to its character a) gratuitous- one where the agent receives no compensation for his services. b) compensated or onerousone where the agent receives compensation for his services. 3. as to extent of business covered a) general- one which comprises all the business of the principal; b) special- one which comprises one or more specific transactions. 4. as to authority conferred a) couched in general termsone which is created in general terms and is deemed to comprise only acts of administration; b) couched in specific termsone authorizing only the performance of a specific act or acts. 5. as to its nature and effects a) ostensible or representative- one where the agent acts in the name and in representation of the principal. b) simple or commission- one where the agent acts in his own name but for the account of the principal.

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

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IMPLIED ACCEPTANCE
1. De Jure Agent 2. Binds the principal for acts within the scope of his authority.

AGENCY BY ESTOPPEL
1. Not really an agent 2. Only the purported agent is liable.

and he did not reply to the letter or telegram RULE ON AGENCY BY ESTOPPEL One who clothes another with apparent authority as his agent, and holds him out to the public as such, cannot be permitted to deny the authority of such person in good faith, and in the honest belief that he is what he appears to be. (Cuison vs. CA, GR.88531, October 26, 1993) CLASSES AND KINDS OF AGENTS 1. Universal Agent- one employed to do all acts that the principal may personally do, and which he can lawfully delegate to another the power of doing. 2. General Agent- one employed to transact all the business of the principal, or all the business of a particular kind or in a particular place, or in other words to do all acts, connected with a particular trade, business or employment. 3. Special or Particular Agent- one authorized to act in one or more specific transactions, or to do one or more specific acts, or to act upon a particular occasion. General Agent Special Agent

Example: Sale of a piece of land or any interest therein through an agent: NOTES: authority to sell must be in writing; otherwise the sale is VOID (Art.1874) the sale itself should be in writing in order to be enforceable. The authority of an agent to execute a contract of sale of real estate must be conferred in writing and must give him specific authority, either to conduct the general business of the principal or to execute a binding contract containing terms and conditions which are in the contract he did execute. (Dizon et al. vs. CA et al., GR 124741, January 28, 2003) FORM OF ACCEPTANCE BY AGENT Acceptance by the agent may also be express or implied from his acts which carry out the agency, or from his silence or inaction according to the circumstances Kinds of Implied Acceptance 1. Where persons are present Acceptance may be implied if: a. principal delivers his power of attorney to the agent and b. agent receives it without any objection 2. Where persons are absent Acceptance cannot be implied from silence of the agent 1. principal transmits his power of attorney to the agent, who receives it without any objection; 2. principal entrusts to him by letter or telegram a power of attorney with respect to the business in which he is habitually engaged as an agent, CIVIL LAW COMMITTEE

1. Scope of Authority Usually authorized to do all acts connected with the business or employment in which he is engaged. Authorized to do only acts in pursuance of particular instructions or with restrictions necessarily implied from the acts to be done

2. Continuity Conducts a series of transactions involving a continuity of service. Usually involves a single transaction or a series of transactions not involving continuity

CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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3. Extent by which agent may bind principal Binds his principal by Cannot bind his an act within the principal in a scope of his authority manner beyond although it may be or outside the contrary to his special specific acts instructions which he is authorized to perform on behalf of the principal 4. Termination of Authority Apparent authority Mere revocation does not terminate by is effective to the mere revocation terminate the of his authority authority as to without notice to the third persons third party because the third person has a duty to inquire 5. Construction of Instructions of Principal Statement of Authority of agent principal with must be strictly respect to the pursued agents authority would ordinarily regarded as advisory only

SPECIAL POWER OF ATTORNEY (SPA) An instrument in writing by which one person, as principal, appoints another as his agent and confers upon him the authority to perform certain specified acts or kinds of acts on behalf of the principal. NOTE: It need not be notarized; except where it is executed in a foreign country, must be certified in accordance with the Rules of Court. INSTANCES WHERE SPA IS NECESSARY (ART 1878) (PECWEM- LLB- BOCARO) 1. To make such payments as are not usually considered as acts of administration; 2. To effect novation which put an end to obligations already in existence at time the agency was constituted; 3. To compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired;

4. To waive any obligation gratuitously; 5. To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or foe a valuable consideration; 6. To make gifts, except customary ones for charity or those made to employees in the business managed by the agents; 7. To loan or borrow money, unless the latters act be urgent and indispensable for the preservation of the things which are under administration; 8. To lease any real property to another person for more than one year; 9. To bind the principal to render some service without compensation; 10. To bind the principal in a contract of partnership; 11. To obligate the principal as guarantor or surety; 12. To create or convey real rights over immovable property; 13. To accept or repudiate an inheritance; 14. To ratify or recognize obligations contracted before the agency; 15. Any other act of strict dominion. NOTE: a third person with whom the agent wishes to contract on behalf of the principal may require the presentation of the power of attorney or the instructions as regards the agency; except private or secret orders. NOTE: The scope of the agents authority is what appears in the written terms of the power of attorney. While third persons are bound to inquire into the extent or scope of the agents authority, they are not required to go beyond the terms of the written power of attorney. Third persons cannot be adversely affected by an understanding between the principal and his agent as to the limits of the latters authority. In the same way, third persons need not concern themselves with instructions given by the principal to his agent outside the written power of attorney. (Siredy Enterprises, Inc. vs. CA, et al. GR 129039, September 27, 2002)

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

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NOTES: SPA to sell does not include the power to mortgage; and vice versa. SPA to mortgage includes the power to allow the extrajudicial foreclosure of the mortgaged property. SPA to compromise does not authorize submission to arbitration SPA for an agent to institute any action in court to eject all persons in the principals lots so that the principal could take material possession thereof, and for this purpose, to appear at the pre-trial and enter into any stipulation of facts and/or compromise agreement but only insofar as this is protective of the rights and interests of the principal in the property, does not grant any power to the agent to sell the subject property nor a portion thereof. (Cosmic Lumber Corp vs. CA 265 SCRA 168) EFFECT OF LACK OF SPA WHERE ONE IS REQUIRED: UNENFORCEABLE When principal bound by act of agent 1. Agent must act within the scope of his authority 2. Agent must act in behalf of the principal NOTE: The limits of the agents authority shall not be considered exceeded should it have been performed in a manner more advantageous to the principal than that specified by him. When a person NOT bound by act of another 1. Latter acts without or beyond the scope of his authority in the formers name; and 2. Latter acts within the scope of his authority but in his own name (UNDISCLOSED PRINCIPAL), except when the transaction involves a thing belonging to the principal. In such case, the contract is deemed as entered between the principal and the third person. EFFECTS OF AGENTS ACTS 1. With Authority a. in principals name valid; principal is bound; agent not personally liable unless he bound himself (Article 1897) b. in his own name Apply Article 1883; generally not binding on the principal; agent and stranger are the only parties, except regarding things belonging to the principal or when the principal ratifies the contract or derives benefit therefrom. 2. Without Authority a. in principals name unauthorized and unenforceable but may be ratified, in which case, may be validated retroactively from the beginning (Article 1407) b. in his own name valid, whether or not the subject matter belongs to the principal, provided that at the time of delivery, the agent can transfer legally the ownership of the thing. Otherwise, he will be held liable for breach of warranty against eviction; Article 1883 does NOT apply OCCASIONS WHEN PRINCIPAL IS BOUND BY THE ACTS OF THE AGENT BEYOND THE LATTERS POWERS General Rule: The principal is not bound by the acts of the agent beyond his limited powers. Exceptions: 1. Where the principals acts have contributed to deceive the third person in good faith; 2. Where the limitations upon the power created by him could not have been known by the third person; 3. Where the principal has placed in the hands of the agent instruments signed by him in blank (Strong vs. Gutierrez Repide 6 PHIL 680 [1906]) 4. Where the principal has ratified the acts of the agent.

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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Doctrine of Agency by Necessity By virtue of the existence of an emergency, the authority of an agent is correspondingly enlarged in order to cope with the exigencies or the necessities of the moment Requisites: 1. Real existence of an emergency 2. Inability of the agent to communicate with the principal 3. Exercise of the additional authority for the principals own protection 4. Adoption of fairly reasonable means, premises duly considered NOTE: Agency can never be created by necessity; what is created is additional authority in an agent appointed and authorized before the emergency arose. GENERAL OBLIGATIONS OF AGENT TO PRINCIPAL: 1. To act with utmost good faith and loyalty for furtherance of principals interests 2. To obey all lawful orders and instructions of principal within the scope of the agancy 3. To exercise reasonable care, skill and diligence SPECIFIC OBLIGATIONS OF AGENT TO PRINCIPAL 1. To carry out the agency which he has accepted 2. To answer for damages which through his performance the principal may suffer 3. To finish the business already begun on the death of the principal should delay entail any danger 4. To observe diligence of a good father of a family in the custody and preservation of the goods forwarded to him by the owner in case he declines an agency, until an agent is appointed 5. To advance the necessary funds should there be a stipulation to do so 6. To act in accordance with the instructions of the principal, and in default thereof, to do all that a good father of a family would do

7. Not to carry out the agency if its execution would manifestly result in loss or damage to the principal 8. To answer for damages if there being a conflict between his interest and those of the principal, he should prefer his own 9. Not to loan to himself if he has been authorized to lend money at interest 10. To render an account of his transactions and to deliver to the principal whatever he may have received by virtue of the agency 11. To distinguish goods by countermarks and designate the merchandise respectively belonging to each principal, in the case of a commission agent who handles goods of the same kind and mark, which belong to different owners 12. To be responsible in certain cases for the acts of the substitute appointed by him 13. To pay interest on funds he has applied to his own use 14. To inform the principal, where an authorized sale of credit has been made, of such sale 15. To bear the risk of collection, should he receive also on sale, a guarantee commission 16. To indemnify the principal for damages for his failure to collect the credits of his principal at the time that they become due 17. To be responsible for fraud or negligence NOTE: A stipulation exempting the agent from the obligation to render an account shall be VOID. Knowledge of agent is knowledge of principal. 1. Agents interests are adverse to those of the principal 2. Agents duty is not to disclose the information (confidential information) 3. Where the person claiming the benefit of the rule colludes with the agent to defraud the principal

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

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SUB-AGENT A person to whom the agent delegates, as his agent, the performance of an act for the principal which the agent has been empowered to perform through his representative. NOTE: The agent may appoint a substitute (sub-agent) except when he has been prohibited by the principal. (ART 1892) Instances when agent shall be responsible for the acts of the substitute: 1. when he was not given the power to appoint; or 2. when he was given such power but without designating the person, and the person appointed was notoriously incompetent or insolvent. 3. in these two cases the principal may further bring an action against the substitute with respect to the obligations which the latter has contracted under the substitution. NOTE: All acts of the substitute appointed against the prohibition of the principal shall be VOID. JOINT AGENTS Agents appointed by one or more principals under such circumstances as to induce the inference that it was the principals intent that all should act in conjunction in consummating the transaction for which they were appointed. Their responsibility is JOINT; except if solidarity has been expressly stipulated. If solidarity has been agreed upon, each agent is responsible for the: a. non-fulfillment of the agency b. fault or negligence of his fellow agents; except when the fellow agents acted beyond the scope of their authority. NOTE: innocent agent has a right later on to recover from the guilty or negligent agent (ART 1217(2)) Instances when agent may incur personal liability: 1. When the agent expressly binds himself NOTE: The individual liability of the agent can be considered a further security in favor of the creditor and does not affect or preclude the liability of the principal; both are liable 2. When agent exceeds his authority 3. When agent by his acts prevents performance on the part of the principal 4. When a person acts as an agent without authority or without a principal 5. A person who acts as an agent of an incapacitated principal unless the third party was aware of the incapacity at the time of the making of the contract FACTOR/COMMISSION AGENT - one engaged in the purchase and sale for a principal of personal property, which for this purpose, has to be placed in his possession and at his disposal. If the commission agent received goods consigned to him, he is responsible for any damage or deterioration suffered by the same in the terms and conditions and as described in the consignment. The commission agent who handles goods of the same kind and mark, which belong to different owners, shall distinguish them by countermarks, and designate the merchandise respectively belonging to each principal. A commission agent can sell on credit only with the express or implied consent of the principal. If such sale is made without authority, the principal is given two alternatives:
i. He may require payment in cash, in which case any interest or benefit from the sale on credit shall belong to the agent since the principal cannot be allowed to enrich himself at the agents expense; He may ratify the sale on credit in which case it will have all the risks and advantages to him.

ii.

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

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If the commission agent is authorized to sell on credit, he shall inform the principal with a statement of the names of the buyers. With such statement, the sale shall be deemed to be for cash as far as the principal is concerned. 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 the exercise of due diligence for that purpose. BROKER A middleman or intermediary who, in behalf of others and for a commission or fee, negotiates contracts/transactions relating to real or personal property. Factorage Compensation of commission agent. a factor or

2. To advance to the agent, should the latter so request, the sums necessary for the execution of the agency 3. To reimburse the agent for what the latter has advanced (plus interest), even if the business was not successful, provided the agent was free from fault 4. To indemnify the agent for all the damages, which the execution of the agency may have caused the latter without fault or negligence on his part NOTE: The agent may retain in pledge the things which are the object of the agency until the principal effects this reimbursement and pays the indemnity. 5. To pay the agent the compensation agreed upon, or if no compensation was specified, the reasonable value of the agents services LIABILITY OF PRINCIPAL FOR TORT OF AGENT RULE: The principal is civilly liable to third persons for torts of an agent committed at the principals direction or in the course and within the scope of the agents authority. Reason for liability: The rule is based upon the principle that he who does an act through another does it himself. CONDITIONS FOR RATIFICATION 1. principal must have capacity and power to ratify 2. principal must have had knowledge of material facts 3. principal must ratify the acts in its entirety 4. act must be capable of ratification 5. act must be done in behalf of the principal ESTOPPEL BY PRINCIPAL Even when the agent has exceeded his authority, the principal is solidarily liable with the agent if the former allowed the latter to act as though he had full powers. JOINT PRINCIPALS Two or more persons who appoint an agent for a common transaction or undertaking.

Ordinary Commission Compensation for the sale of goods which are placed in his possession or at his disposal. Guaranty Commission (Del credere) Fee that is given in return for the risk, which the agent has to bear in the collection of credits. An agent with a del credere commission is liable to the principal if the buyer fails to pay or is incapable of paying. GENERAL OBLIGATIONS OF PRINCIPAL TO AGENT Duties and liabilities of the principal are primarily based upon the contract and the validity of the contract between them SPECIFIC OBLIGATIONS OF PRINCIPAL TO AGENT (CARIP) 1. To comply with all the obligations which the agent may have contracted within the scope of his authority and in the name of the principal

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

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Liability: solidarily liable to the agent for all the consequences of the agency. Requisites of solidary liability: 1. There are two or more principals 2. The principals have all concurred in the appointment of the same agent; and 3. The agent is appointed for a common transaction or undertaking NOTE: Any one of them may revoke the agency RULES ON DOUBLE SALE BY PRINCIPAL AND AGENT 1 When two persons contract with regard to the same thing, one of them with the agent and the other with the principal, and the two contracts are incompatible with each other, that of prior date shall be preferred, without prejudice to Article 1544(double sale). 2 If the agent has acted in good faith, the principal shall be liable in damages to the third person whose contract must be rejected. If the agent is in bad faith, he alone shall be responsible. Instances when principal is not liable for the expenses incurred by the agent: 1. if the agent acted in contravention of the principals instructions, unless the latter should wish to avail himself of the benefits derived from the contract; 2. when the expenses were due to the fault of the agent; 3. when the agent incurred them with knowledge that an unfavorable result would ensure, if the principal was not aware thereof; 4. when it was stipulated that the expenses would be borne by the agent, or that the latter would be allowed only a certain sum. MODES OF EXTINGUISHMENT OF AGENCY (EDWARD) 1. Expiration of the period 2. Death, civil interdiction, insanity or insolvency of the principal or of the agent CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

3. Withdrawal of the agent agent may withdraw by giving notice to the principal, but must indemnify the principal for damages that he may suffer by reason of such withdrawal. 4. Accomplishment of the object or the purpose of the agency 5. Revocation 6. Dissolution of the firm or corporation, which entrusted or accepted the agency. Instances when death of principal does not terminate agency 1. If the agency has been constituted in the common interest of the principal and the agent 2. If it has been constituted in the interest of a third person who has accepted the stipulation in his favor Revocation of Agency by Principal will of the principal, regardless of the term of the agreement. 1. If a bilateral contract depends upon it; 2. If it is the means of fulfilling an obligation already contracted; 3. If a partner is appointed manager of a partnership and his termination is unjustifiable; and 4. If it is created not only for the interest of the principal but also for the interest of third persons, who have accepted the stipulation in their favor Agency coupled with an interest An agency wherein the agent has acquired some interest of his own in the execution of the authority granted to him, in addition to his mere interest in the contract of employment with the resulting gains. The agency becomes merely a part of another obligation or agreement, or an incidental element thereof so it cannot be unilaterally revoked. NOTE: However, in Coleongco vs. Claparals (10 SCRA 577), the SC made a sweeping statement that coupled with an interest or not, the authority (agency)

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can certainly be revoked for a just cause. Implied Revocation may be effected: 1. By the act of the principal in appointing another agent for the same business or transaction; 2. By the act of the principal in directly managing the business entrusted to the agent; or 3. By the act the principal in subsequently granting a special power of attorney as regards the same business to another agent, where he had previously granted a general power of attorney to one agent.

TRUST
Always involves owner-ship, embracing a set of rights and duties fiduciary in character which may be created by a declaration without consideration.

CONTRACT
A legal obligation based on an undertaking supported by a consideration, which obligation may or may not be fiduciary in character.

TRUST
1. An existing legal relationship and involves the separation of legal and equitable title

DONATION
There is a transfer of property as well as the disposition of both legal and equitable ownership except in cases of gifts in trust. 2. The donee must comply with the legal requirements in accepting donations.

TRUSTS
TRUST A legal relationship between one person having an equitable ownership in property and another owning the legal title to such property. CLASSIFICATIONS 1. Effectivity - from the viewpoint of whether they become effective after the death of the trustor or during his life, it may be either: a. testamentary trusts b. trusts inter vivos (sometimes called living trusts) 2. Creation - from the viewpoint of the creative force bringing them into existence, it may be either: a) Express trust - created by the intention of the trustor or of the parties b) Implied trust - one which comes into being by operation of law. This may be either: 1) Resulting trust - one in which the intention to create a trust is presumed by law to exist from the transaction and facts of the case 2) Constructive trust - one imposed by law irrespective of and even contrary to the intention of the parties. It is designed to promote justice, frustrate fraud and prevent unjust enrichment.

2. The beneficiary of a trust may demand performance of the obligation without having formally accepted the benefit of the trust in public document, upon mere acquiescence in the formation of the trust and acceptance under the second paragraph of article 1311(stipulations pour autrui).

Persons involved in the creation of a trust: 1. Trustor - the one who intentionally creates a trust 2. Trustee - the person who holds the legal title to the trust property for the benefit of another and with certain powers and subject to certain duties 3. Beneficiary or the cestui que trust - the one who has the equitable interest in the property and enjoys the benefit of administration by the trustee. He may be a natural person or a legal entity. The trustor may establish a trust with himself as the beneficiary (usual case).

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

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ELEMENTS OF EXPRESS TRUST 1. Competent trustor and trustee; 2. Ascertainable trust res; and 3. Sufficiently certain beneficiaries. TRUST PROPERTY The concept of a trust arises from or is the result of a fiduciary relation between the trustee and the cestui que trust as regards certain property- real, personal, funds or money, choses in action held by the trustee. (Pacheco vs. Arro, 85 PHIL 505 ) The trust property is owned by two or more persons at the same time, the relation between the two owners being such that one of them is under an obligation to use his ownership for the benefit of the other. The trustee is not a mere agent but an owner. But his ownership is a mere matter of form rather than substance, and nominal rather than real. PROOF OF TRUST or implied may be proved by parol or oral evidence immovable property or any interest therein. This latter requirement however is not for validity but only for purposes of proof. NOTES: Trusts cannot be established in violation of law. Trust is founded in equity such that it cannot result from a contract formed for an illegal purpose. Neither may a trust be created for the purpose of evading a legal prohibition. Example: there cannot be a trust created for the purpose of obtaining homestead patents, in favor of a person already disqualified to obtain additional homesteads. Necessity of Acceptance to the creation and validity of trust relationship 1. Acceptance of the trustee The acceptance of the trustee is not necessary to its existence and validity since if he declines, the CIVIL LAW COMMITTEE
CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)

courts will appoint a trustee to fill the office that he declines. (see Sec.3 Rule 98 of the Rules of Court). NOTE: But a trustees acceptance of the trust is necessary to charge him with the office of the trustee and the administration of the trust and to vest the legal title in him. 2. Acceptance of the beneficiary The acceptance by the beneficiary is essential to the creation and validity of a trust. However, such acceptance is presumed if there is no proof to the contrary and the trust does not impose any onerous condition upon the beneficiary. Requisites for a Trustee to claim title by prescription: 1. He has performed open and unequivocal acts of repudiation 2. Such positive acts of repudiation have been made known to the beneficiary or the cestui que trust 3. The evidence thereon should be clear and convincing and 4. The period fixed by law has expired. (10 years from the time that the repudiation is made known to the beneficiary in cases of express trust or resulting trust while 10 years from the time a constructive trust arises). In order that a trustee may sue or be sued alone, it is essential that his trust should be express, that is a trust created by the direct and positive acts of the parties, by some writing deed or will, or by proceedings in court. Rule 3, sec 3 does not apply in cases of implied trust that is, a trust which may be inferred merely by the acts of the parties or from other circumstances. (PAL vs. Heald Lumber Co.) NOTES: the 10-year prescriptive period in case of implied trust begins to run from the date the trustee repudiates the express trust. In the case Sps. Pascual, et al. vs. CA, et al. GR 115925, August 15, 2003, it was held that repudiation takes place when the adverse party registers the land.

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the 4-year prescriptive period under


Article 1391 applies only if the fraud does not give rise to an implied trust, and the action is to annul a voidable contract under Article 1390.

2. As to proof of trust
An express trust over an immovable property or any interest therein cannot be proved by parol evidence An implied trust over an immovable or any interest therein may be proved by oral evidence. In constructive trusts, even if there is no repudiation, laches may bar an action to enforce an implied trust.

TRUST PURSUIT RULE Equity will pursue property that is wrongfully converted by the fiduciary, or otherwise compel restitution to the beneficiary. A trust will follow the property through all changes in its state and form, provided its product or proceeds are capable of identification. IMPLIED TRUST Are those, without being express, are deducible from the nature of the transaction as matters of intention, or which are superinduced on the transaction by operation of law, as matters of equity independently of the particular intention of the parties. RESULTING CONSTRUCTIVE TRUST TRUST 1. Intention to create trust: The intent of The trust is created the parties to irrespective of or even create a trust contrary to the is presumed or intention of the parties implied by law to promote justice, from the frustrate fraud and to nature of their prevent unjust transaction enrichment. 2. Prescriptive period: The 10 year The 10 year prescriptive prescriptive period period shall be shall be counted from counted from the time that the the time constructive trust repudiation is arises. made known to beneficiary. 3. Examples: Illustrated in Illustrated in Articles Articles 1448, 1450, 1454, 1455, 1456 1449, 1451, 1452, 1453 EXPRESS TRUST IMPLIED TRUST 1. As to creation
Created by the intention of the parties Come into being by operation of law.

3. As regards repudiation of trust


An express repudiation made known to the beneficiary is necessary in order that laches or acquisitive prescription may bar an action to enforce an express trust.

KINDS OF IMPLIED TRUSTS 1. Purchase money resulting trust (Article 1448) There is a resulting trust when property is sold, and the legal estate is granted to one party but the price is paid by another party for the purpose of having the beneficial interest of the property. To give rise to a purchase money resulting trust, it is essential that there be: a) an actual payment of money, property or services or an equivalent, constituting valuable consideration; b) and such consideration must be furnished by the alleged beneficiary of a resulting trust. EXCEPTIONS: a) Where A pays the purchase money and title is conveyed by absolute deed to As child or to a person to whom A stands in loco parentis and who makes no express promise, a trust does not result, the presumption being that a gift was intended; b) Where an actual contrary intention is proved; c) Where the purchase is made in violation of an existing statute and in evasion of its express provision, no trust can result in favor of the party who is guilty of fraud. (Tigno vs. Court of Appeals 280 SCRA 262 [1997])

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), Yolanda Tolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law), Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (Commercial Law), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)

San Beda College of Law

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2. Donations made to a person but the beneficial interest is vested in another. The donee is the trustee while the designated third person is the beneficiary. (ART 1449). 3. Purchase with borrowed funds and the conveyance is made to lender to secure payment of debt. ART 1450 ) 4. Legal title to land inherited by heir placed in the name of another. (Article 1451) 5. Legal title to property purchased taken in one co-owner. (ART 1452) 6. Conveyance under a promise to hold for, or transfer to another. (ART 1453) 7. Absolute conveyance to a person to secure performance of grantors obligation. 8. (ART 1454) 9. Purchase of property with use of trust funds (ART 1455) 10. Acquisition of property through mistake or fraud. (ART 1456). NOTE: An action for reconveyance of a parcel of land based on an implied or constructive trust prescribes in ten years, the point of reference being the date of registration of the deed or the date of the issuance of the certificate of title over the property. BUT, this rule applies only when the plaintiff (or person enforcing the trust) is not in possession of the property, since if a person claiming to be the owner thereof is in actual possession of the property, the right to seek reconveyance, which in effect seeks to quiet title to property, does not prescribe. Requisites before period or prescription may start in regard to an action based on an implied trust: a) the trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust. b) Such positive acts of repudiation have been made know to the cestui que trust; and c) Evidence thereon is clear and positive. (Vda. De Cabrera vs. Court of Appeals 267 SCRA 339 [1997].) NOTE: The enumeration is not exclusive. Other examples of implied trust: 1. The registration of land under torrens in the name of one person do not bar evidence to show it was only held in trust for another. 2. Certificate of registration of vehicle placed in the name of a person although the price was not paid by him but by another. 3. One arising from the agents willful violation of the trust reposed in him by the principal by buying for himself the property he was supposed to buy for the principal who designated and appointed him to negotiate with the owner. 4. In consonance with the trust fund doctrine in Corporation Law, the assets of the corporation, as represented by the capital stock, are regarded as trust fund to be maintained unimpaired for the payment of corporate creditors.

CIVIL LAW COMMITTEE


CHAIRPERSON: Romuald Padilla ASST.CHAIRPERSON: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon SUBJECT HEADS: Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD), Ma. Ricasion Tugadi (Conflicts of Law)