SECOND DIVISION

[G.R. No. 155043. September 30, 2004]

ARTURO R. ABALOS, petitioner, vs. DR.

MACATANGAY, JR., respondent.

GALICANO

S.

DECISION
TINGA, J.:

The instant petition seeks a reversal of the Decision of the Court of

Appeals in CA-G.R. CV No. 48355 entitled Dr. Galicano S. Macatangay, Jr. v.
Arturo R. Abalos and Esther Palisoc-Abalos, promulgated on March 14,
2002. The appellate court reversed the trial courts decision which dismissed
the action for specific performance filed by respondent, and ordered
petitioner and his wife to execute in favor of herein respondent a deed of
sale over the subject property.
Spouses Arturo and Esther Abalos are the registered owners of a parcel of
land with improvements located at Azucena St., Makati City consisting of
about three hundred twenty-seven (327) square meters, covered by Transfer
Certificate of Title (TCT) No. 145316 of the Registry of Deeds of Makati.
Armed with a Special Power of Attorney dated June 2, 1988, purportedly
issued by his wife, Arturo executed a Receipt and Memorandum of
Agreement (RMOA) dated October 17, 1989, in favor of respondent,
binding himself to sell to respondent the subject property and not to offer the
same to any other party within thirty (30) days from date. Arturo
acknowledged receipt of a check from respondent in the amount of Five
Thousand Pesos (P5,000.00), representing earnest money for the subject
property, the amount of which would be deducted from the purchase price of
One
Million
Three
Hundred
Three
Hundred
Thousand
Pesos
(P1,300,000.00). Further, the RMOA stated that full payment would be
effected as soon as possession of the property shall have been turned over
to respondent.
Subsequently, Arturos wife, Esther, executed a Special Power of Attorney
dated October 25, 1989, appointing her sister, Bernadette Ramos, to act for
and in her behalf relative to the transfer of the property to respondent.
Ostensibly, a marital squabble was brewing between Arturo and Esther at the
time and to protect his interest, respondent caused the annotation of his
adverse claim on the title of the spouses to the property on November 14,
1989.
On November 16, 1989, respondent sent a letter to Arturo and Esther
informing them of his readiness and willingness to pay the full amount of the
purchase price. The letter contained a demand upon the spouses to comply
with their obligation to turn over possession of the property to him. On the
same date, Esther, through her attorney-in-fact, executed in favor of

respondent, a Contract to Sell the property to the extent of her conjugal

interest therein for the sum of six hundred fifty thousand pesos
(P650,000.00) less the sum already received by her and Arturo. Esther
agreed to surrender possession of the property to respondent within twenty
(20) days from November 16, 1989, while the latter promised to pay the
balance of the purchase price in the amount of one million two hundred
ninety thousand pesos (P1,290,000.00) after being placed in possession of
the property. Esther also obligated herself to execute and deliver to
respondent a deed of absolute sale upon full payment.
In a letter dated December 7, 1989, respondent informed the spouses
that he had set aside the amount of One Million Two Hundred Ninety
Thousand Pesos (P1,290,000.00) as evidenced by Citibank Check No. 278107
as full payment of the purchase price. He reiterated his demand upon them
to comply with their obligation to turn over possession of the property. Arturo
and Esther failed to deliver the property which prompted respondent to
cause the annotation of another adverse claim on TCT No. 145316. On
January 12, 1990, respondent filed a complaint for specific performance with
damages against petitioners. Arturo filed his answer to the complaint while
his wife was declared in default.
The Regional Trial Court (RTC) dismissed the complaint for specific
performance. It ruled that the Special Power of Attorney (SPA) ostensibly
issued by Esther in favor of Arturo was void as it was falsified. Hence, the
court concluded that the SPA could not have authorized Arturo to sell the
property to respondent. The trial court also noted that the check issued by
respondent to cover the earnest money was dishonored due to insufficiency
of funds and while it was replaced with another check by respondent, there
is no showing that the second check was issued as payment for the earnest
money on the property.
On appeal taken by respondent, the Court of Appeals reversed the
decision of the trial court. It ruled that the SPA in favor of Arturo, assuming
that it was void, cannot affect the transaction between Esther and
respondent. The appellate court ratiocinated that it was by virtue of the SPA
executed by Esther, in favor of her sister, that the sale of the property to
respondent was effected. On the other hand, the appellate court considered
the RMOA executed by Arturo in favor of respondent valid to effect the sale
of Arturos conjugal share in the property.
Dissatisfied with the appellate courts disposition of the case, petitioner
seeks a reversal of its decision alleging that:
I.
The Court of Appeals committed serious and manifest error when it decided
on the appeal without affording petitioner his right to due process.

II.
The Court of Appeals committed serious and manifest error in reversing and
setting aside the findings of fact by the trial court.
III.
The Court of Appeals erred in ruling that a contract to sell is a contract of
sale, and in ordering petitioner to execute a registrable form of deed of sale
over the property in favor of respondent.[1]
Petitioner contends that he was not personally served with copies of
summons, pleadings, and processes in the appeal proceedings nor was he
given an opportunity to submit an appellees brief. He alleges that his counsel
was in the United States from 1994 to June 2000, and he never received any
news or communication from him after the proceedings in the trial court
were terminated. Petitioner submits that he was denied due process because
he was not informed of the appeal proceedings, nor given the chance to
have legal representation before the appellate court.
We are not convinced. The essence of due process is an opportunity to be
heard. Petitioners failure to participate in the appeal proceedings is not due
to a cause imputable to the appellate court but because of petitioners own
neglect in ascertaining the status of his case. Petitioners counsel is equally
negligent in failing to inform his client about the recent developments in the
appeal proceedings. Settled is the rule that a party is bound by the
conduct, negligence and mistakes of his counsel.[2] Thus, petitioners
plea of denial of due process is downright baseless.
Petitioner also blames the appellate court for setting aside the factual
findings of the trial court and argues that factual findings of the trial court
are given much weight and respect when supported by substantial evidence.
He asserts that the sale between him and respondent is void for lack of
consent because the SPA purportedly executed by his wife Esther is a forgery
and therefore, he could not have validly sold the subject property to
respondent.
Next, petitioner theorizes that the RMOA he executed in favor of
respondent was not perfected because the check representing the earnest
money was dishonored. He adds that there is no evidence on record that the
second check issued by respondent was intended to replace the first check
representing payment of earnest money.
Respondent admits that the subject property is co-owned by petitioner
and his wife, but he objects to the allegations in the petition bearing a
relation to the supposed date of the marriage of the vendors. He contends
that the alleged date of marriage between petitioner and his wife is a new
factual issue which was not raised nor established in the court a quo.

Respondent claims that there is no basis to annul the sale freely and
voluntarily entered into by the husband and the wife.
The focal issue in the instant petition is whether petitioner may be
compelled to convey the property to respondent under the terms of the
RMOA and the Contract to Sell. At bottom, the resolution of the issue entails
the ascertainment of the contractual nature of the two documents and the
status of the contracts contained therein.
Contracts, in general, require the presence of three essential
elements: (1) consent of the contracting parties; (2) object certain which is
the subject matter of the contract; and (3) cause of the obligation which is
established.[3]
Until the contract is perfected, it cannot, as an independent source of
obligation, serve as a binding juridical relation.[4] In a contract of sale, the
seller must consent to transfer ownership in exchange for the price,
the subject matter must be determinate, and the price must be
certain in money or its equivalent.[5] Being essentially consensual, a
contract of sale is perfected at the moment there is a meeting of the minds
upon the thing which is the object of the contract and upon the price.
[6]
However, ownership of the thing sold shall not be transferred to
the vendee until actual or constructive delivery of the property.[7]
On the other hand, an accepted unilateral promise which specifies
the thing to be sold and the price to be paid, when coupled with a
valuable consideration distinct and separate from the price, is what may
properly be termed a perfected contract of option.[8] An option merely
grants a privilege to buy or sell within an agreed time and at a determined
price. It is separate and distinct from that which the parties may enter into
upon the consummation of the option.[9] A perfected contract of option
does not result in the perfection or consummation of the sale; only
when the option is exercised may a sale be perfected.[10] The option must,
however, be supported by a consideration distinct from the price.[11]
Perusing the RMOA, it signifies a unilateral offer of Arturo to sell the
property to respondent for a price certain within a period of thirty days. The
RMOA does not impose upon respondent an obligation to buy petitioners
property, as in fact it does not even bear his signature thereon. It is quite
clear that after the lapse of the thirty-day period, without respondent having
exercised his option, Arturo is free to sell the property to another. This shows
that the intent of Arturo is merely to grant respondent the privilege to buy
the property within the period therein stated. There is nothing in the RMOA
which indicates that Arturo agreed therein to transfer ownership of the land
which is an essential element in a contract of sale. Unfortunately, the option
is not binding upon the promissory since it is not supported by a
consideration distinct from the price.[12]

As a rule, the holder of the option, after accepting the promise

and before he exercises his option, is not bound to buy. He is free
either to buy or not to buy later. In Sanchez v. Rigos[13]we ruled that in an
accepted unilateral promise to sell, the promissor is not bound by
his promise and may, accordingly, withdraw it, since there may be
no valid contract without a cause or consideration. Pending notice of
its withdrawal, his accepted promise partakes of the nature of an offer to sell
which, if acceded or consented to, results in a perfected contract of sale.
Even conceding for the nonce that respondent had accepted the offer
within the period stated and, as a consequence, a bilateral contract of
purchase and sale was perfected, the outcome would be the same. To benefit
from such situation, respondent would have to pay or at least make a valid
tender of payment of the price for only then could he exact compliance with
the undertaking of the other party.[14] This respondent failed to do. By his own
admission, he merely informed respondent spouses of his readiness and
willingness to pay. The fact that he had set aside a check in the amount of
One Million Two Hundred Ninety Thousand Pesos (P1,290,000.00)
representing the balance of the purchase price could not help his cause.
Settled is the rule that tender of payment must be made in legal
tender. A check is not legal tender, and therefore cannot constitute a valid
tender of payment.[15] Not having made a valid tender of payment,
respondents action for specific performance must fail.
With regard to the payment of Five Thousand Pesos (P5,000.00), the
Court is of the view that the amount is not earnest money as the term is
understood in Article 1482 which signifies proof of the perfection of the
contract of sale, but merely a guarantee that respondent is really interested
to buy the property. It is not the giving of earnest money, but the
proof of the concurrence of all the essential elements of the
contract of sale which establishes the existence of a perfected sale.
[16]
No reservation of ownership on the part of Arturo is necessary since, as
previously stated, he has never agreed to transfer ownership of the property
to respondent.
Granting for the sake of argument that the RMOA is a contract of sale,
the same would still be void not only for want of consideration and absence
of respondents signature thereon, but also for lack of Esthers conformity
thereto. Quite glaring is the absence of the signature of Esther in the RMOA,
which proves that she did not give her consent to the transaction initiated by
Arturo. The husband cannot alienate any real property of the conjugal
partnership without the wifes consent.[17]
However, it was the Contract to Sell executed by Esther through her
attorney-in-fact which the Court of Appeals made full use of. Holding that the
contract is valid, the appellate court explained that while Esther did not
authorize Arturo to sell the property, her execution of the SPA authorizing her
sister to sell the land to respondent clearly shows her intention to convey her

interest in favor of respondent. In effect, the court declared that the lack of
Esthers consent to the sale made by Arturo was cured by her subsequent
conveyance of her interest in the property through her attorney-in-fact.
We do not share the ruling.
The nullity of the RMOA as a contract of sale emanates not only from lack
of Esthers consent thereto but also from want of consideration and absence
of respondents signature thereon. Such nullity cannot be obliterated by
Esthers subsequent confirmation of the putative transaction as expressed in
the Contract to Sell. Under the law, a void contract cannot be
ratified[18] and the action or defense for the declaration of the
inexistence of a contract does not prescribe.[19] A void contract
produces no effect either against or in favor of anyone it cannot create,
modify or extinguish the juridical relation to which it refers.[20]
True, in the Contract to Sell, Esther made reference to the earlier RMOA
executed by Arturo in favor of respondent. However, the RMOA which Arturo
signed is different from the deed which Esther executed through her
attorney-in-fact. For one, the first is sought to be enforced as a contract of
sale while the second is purportedly a contract to sell only. For another, the
terms and conditions as to the issuance of title and delivery of possession
are divergent.
The congruence of the wills of the spouses is essential for the valid
disposition of conjugal property. Where the conveyance is contained in the
same document which bears the conformity of both husband and wife, there
could be no question on the validity of the transaction. But when there are
two documents on which the signatures of the spouses separately appear,
textual concordance of the documents is indispensable. Hence, in this case
where the wifes putative consent to the sale of conjugal property appears in
a separate document which does not, however, contain the same terms and
conditions as in the first document signed by the husband, a valid
transaction could not have arisen.
Quite a bit of elucidation on the conjugal partnership of gains is in order.
Arturo and Esther appear to have been married before the effectivity of
the Family Code. There being no indication that they have adopted a
different property regime, their property relations would automatically be
governed by the regime of conjugal partnership of gains.[21]
The subject land which had been admittedly acquired during the
marriage of the spouses forms part of their conjugal partnership.[22]
Under the Civil Code, the husband is the administrator of the
conjugal partnership. This right is clearly granted to him by law. [23] More,
the husband is the sole administrator. The wife is not entitled as of right to
joint administration.[24]

The husband, even if he is statutorily designated as administrator of the

conjugal partnership, cannot validly alienate or encumber any real property
of the conjugal partnership without the wifes consent. [25] Similarly, the wife
cannot dispose of any property belonging to the conjugal partnership without
the conformity of the husband. The law is explicit that the wife cannot
bind the conjugal partnership without the husbands consent, except
in cases provided by law.[26]
More significantly, it has been held that prior to the liquidation of
the conjugal partnership, the interest of each spouse in the conjugal
assets is inchoate, a mere expectancy, which constitutes neither a legal
nor an equitable estate, and does not ripen into title until it appears
that there are assets in the community as a result of the liquidation
and settlement. The interest of each spouse is limited to the net remainder
or remanente liquido (haber ganancial) resulting from the liquidation of the
affairs of the partnership after its dissolution. [27] Thus, the right of the
husband or wife to one-half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership, or after dissolution of
the marriage, when it is finally determined that, after settlement of conjugal
obligations, there are net assets left which can be divided between the
spouses or their respective heirs.[28]
In not a few cases, we ruled that the sale by the husband of property
belonging to the conjugal partnership without the consent of the
wife when there is no showing that the latter is incapacitated is
void ab initio because it is in contravention of the mandatory
requirements of Article 166 of the Civil Code.[29] Since Article 166 of the
Civil Code requires the consent of the wife before the husband may alienate
or encumber any real property of the conjugal partnership, it follows that
acts or transactions executed against this mandatory provision are void
except when the law itself authorizes their validity.[30]
Quite recently, in San Juan Structural and Steel Fabricators, Inc. v.
Court of Appeals,[31] we ruled that neither spouse could alienate in
favor of another, his or her interest in the partnership or in any
property belonging to it, or ask for partition of the properties before
the partnership itself had been legally dissolved. Nonetheless,
alienation of the share of each spouse in the conjugal partnership could be
had after separation of property of the spouses during the marriage had
been judicially decreed, upon their petition for any of the causes specified in
Article 191[32] of the Civil Code in relation to Article 214[33] thereof.
As an exception, the husband may dispose of conjugal property
without the wifes consent if such sale is necessary to answer for
conjugal liabilities mentioned in Articles 161 and 162 of the Civil Code.
[34]
In Tinitigan v. Tinitigan, Sr.,[35] the Court ruled that the husband may
sell property belonging to the conjugal partnership even without
the consent of the wife if the sale is necessary to answer for a big

conjugal liability which might endanger the familys economic

standing. This is one instance where the wifes consent is not required and,
impliedly, no judicial intervention is necessary.
Significantly, the Family Code has introduced some changes particularly
on the aspect of the administration of the conjugal partnership. The new law
provides that the administration of the conjugal partnership is now a
joint undertaking of the husband and the wife. In the event that one
spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal partnership, the other spouse may assume
sole powers of administration. However, the power of administration does
not include the power to dispose or encumber property belonging to the
conjugal partnership.[36] In all instances, the present law specifically requires
the written consent of the other spouse, or authority of the court for
the disposition or encumbrance of conjugal partnership property
without which, the disposition or encumbrance shall be void.[37]
Inescapably, herein petitioners action for specific performance must fail.
Even on the supposition that the parties only disposed of their respective
shares in the property, the sale, assuming that it exists, is still void for as
previously stated, the right of the husband or the wife to one-half of
the conjugal assets does not vest until the liquidation of the
conjugal partnership. Nemo dat qui non habet. No one can give what
he has not.
WHEREFORE, the appealed Decision is hereby REVERSED and SET
ASIDE. The complaint in Civil Case No. 90-106 of the Regional Trial Court of
Makati is ordered DISMISSED. No pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur.
Chico-Nazario, J., on leave.

[1]

Rollo, pp. 21-22.

Heirs of Elias Lorilla v. Court of Appeals, 368 Phil. 638 (2000).
[3]
ART. 1318, CIVIL CODE OF THE PHILIPPINES; Santos v. Heirs of Jose Mariano and Erlinda Mariano-Villanueva,
G.R. No. 143325, October 24, 2000, 344 SCRA 284.
[4]
Ang Yu v. Asuncion, G.R. No. 109125, December 2, 1994, 238 SCRA 602.
[5]
Heirs of Juan San Andres v. Rodriguez, 388 Phil. 571 (2000).
[6]
Laforteza v. Machuca, 389 Phil. 167 (2000).
[7]
Heirs of Quirico Seraspi and Purificacion Seraspi v. Court of Appeals, 387 Phil. 306 (2000).
[8]
Ang Yu v. Asuncion, Supra note 4.
[9]
Equatorial Realty Development, Inc. v. Mayfair Theater, Inc., 332 Phil. 525 (1996).
[10]
Cavite Development Bank v. Lim, 381 Phil. 355 (2000).
[11]
De la Cavada v. Diaz, 37 Phil. 982 (1918), Beaumont v. Prieto, 41 Phil. 670 (1916).
[12]
Atkins, Kroll and Co., Inc. v. Cua Hian Tek, 102 Phil. 948.
[13]
150-A Phil. 714 (1972).
[14]
Article 1191, CIVIL CODE.
[15]
Cebu International Finance Corporation v. Court of Appeals, 374 Phil. 844; Far East Bank & Trust Company v. Diaz
Realty, Inc., G.R. No. 38588, August 23, 2001, 363 SCRA 659.
[16]
San Miguel Properties Philippines, Inc. v. Huang, 391 Phil. 636 (2000).
[17]
Article 166, CIVIL CODE.
[2]

[18]

Article 1409, CIVIL CODE.

Article 1410, CIVIL CODE; Santos v. Santos, G.R. No. 133895, October 2, 2001, 366 SCRA 395.
[20]
Gochan v. Young, G.R. No. 131889, March 12, 2001, 354 SCRA 207.
[21]
ART. 119, CIVIL CODE.
[22]
ART. 160, CIVIL CODE.
[23]
ART. 165, CIVIL CODE.
[24]
Ysasi v. Hon. Fernandez, et.al., 132 Phil. 526 (1968).
[25]
ART. 166, CIVIL CODE.
[26]
ART. 172, CIVIL CODE.
[27]
Nable Jose v. Nable Jose, 41 Phil. 713 (1916); Manuel v. Losano, 41 Phil. 855 (1918).
[28]
Quintos de Ansaldo v. Sheriff of Manila, 64 Phil. 115 (1937).
[29]
Nicolas v. Court of Appeals, No. L-37631, October 12, 1987, 154 SCRA 635; Garcia v. Court of Appeals, 215 Phil.
380 (1984); Tolentino v. Cardena, 123 Phil. 517 (1966).
[30]
ART. 5, CIVIL CODE.
[31]
357 Phil 631 (1998).
[32]
ART. 191. The husband or the wife may ask for the separation of property, and it shall be decreed when the
spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction, or has been
declared absent, or when legal separation has been granted.
In case of abuse of powers of administration of the conjugal partnership property by the husband, or in
case of abandonment by the husband, separation of property may also be ordered by the court, according to the
provisions of Articles 167 and 178, No. 3.
In all these cases, it is sufficient to present the final judgment which has been entered against the guilty or
absent spouse.
The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage,
subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership,
shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that
any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for
dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other
third persons.
After dissolution of the conjugal partnership, the provisions of Articles 214 and 215 shall apply. The
provisions of this Code concerning the effect of partition stated in Articles 498 to 501 shall be applicable.
[33]
ART. 214. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate,
without the consent of the other. All earnings from any profession, business or industry shall likewise belong to each
spouse.
[34]
ART. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those
contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership;
(2) Arrears or income due, during the marriage, from obligations which constitute a charge upon property of either
spouse or of the partnership;
(3) Minor repairs or for mere preservation made during the marriage upon the separate property of either the
husband or the wife; major repairs shall not be charged to the partnership;
(4) Major or minor repairs upon the conjugal partnership property;
(5) The maintenance of the family and the education of the children of both husband and wife, and of legitimate
children of one of the spouses;
(6) Expenses to permit the spouses to complete a professional, vocational or other course.
ART. 162. The value of what is donated or promised to the common children by the husband, only for securing their
future or the finishing of a career, or by both spouses through a common agreement shall also be charged to the
conjugal partnership, when they have not stipulated that it is to be satisfied from the property of one of them, in
whole or in part.
[35]
No. L- 45418, October 30, 1980, 100 SCRA 619.
[36]
ART. 124, FAMILY CODE OF THE PHILIPPINES.
[37]
Ibid.
[19]