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CIVIL LAW REVIEWER

CIVIL LAW 2010


VOLUME ONE

PERSONS & FAMILY


RELATIONS

SUCCESSION

OBLIGATIONS

Copyright and all other relevant rights over this material are
owned jointly by the University of the Philippines College of
Law, the Faculty Editor and the Student Editorial Team.
The ownership of the work belongs to the University of the
Philippines College of Law. No part of this book shall be
reproduced or distributed without the consent of the UP
College of Law.
All rights are reserved.

CONTRACTS

PROPERTY

CIVIL LAW REVIEWER

PERSONS & FAMILY RELATIONS


Table of Contents
Chapter I. Civil Personality..............................3
I.
Concept and Classes of Persons..........3
II.
Capacity to Act and Restrictions
Thereon..........................................................5
Chapter II. Citizenship and Domicile..............8
I.
Who are Filipinos ..................................8
II.
Domicile ................................................8
Chapter III. Marriage.........................................9
I.
Definition and Nature of Marriage .........9
II.
Requisites of Marriage ..........................9
III. Marriages Solemnized Abroad............11
IV. Presumption of Marriage.....................11
Chapter IV. Void Marriages ...........................13
I.
Grounds ..............................................13
II.
Period to File Action or Raise Defense
15
III. Effects of Nullity ..................................16
Chapter V. Voidable Marriages .....................18
I.
Grounds for Annulment (Art. 45, FC) ..18
II.
Marriage When One Spouse Absent ..21
III. Effects of Pending
Actions/Decree
(Art. 49, FC) .................................................22
IV. Voidable v. Void Marriage ...................23
V. Voidable v. Legal Separation ..............23
VI. Jurisdiction ..........................................23
Chapter VI. Legal Separation, Divorce and De
Facto Separation ............................................24
I.
Grounds for Legal Separation.............24
II.
Defenses .............................................25
III. When to File/Try Actions .....................25
IV. Effects of Filing Petition for Legal
Separation....................................................25
V. Effects of Decree for Legal Separation
25
VI. Reconciliation......................................26
VII.
Divorce............................................26
VIII.
De Facto Separation.......................27
Chapter VII. Rights and Obligations Between
Husband and Wife..........................................28
I.
Obligations of Spouses (Arts. 68-71, FC)
28
II.
Rights of Spouses (Arts. 72-73, FC) ...28
III. Use of Surname ..................................28
Chapter VIII. Property Relations Between
Spouses ..........................................................29
I.
General Provisions..............................29
II.
Donations by Reason of Marriage ......30

III. Absolute Community of Property ........ 31


IV. Conjugal Partnership of Gains ............ 34
V. Separation
of
Properties
During
Marriage....................................................... 38
VI. Property regime of unions without
marriage....................................................... 39
Chapter IX. The Family and the Family Home
......................................................................... 41
I.
Family.................................................. 41
II.
Family Home....................................... 41
Chapter X. Paternity and Filiation ................ 43
I.
Kinds of Filiation.................................. 43
II.
Impugning Legitimacy (Art. 166) ......... 43
III. Proof of Filiation (Arts. 172 and 175 (1))
44
IV. Legitimation (Arts. 177 and 182)......... 45
V. Rights of Legitimate and Illegitimate
Children (SSS)............................................. 45
Chapter XI. Adoption ..................................... 46
I.
RA 8552: Domestic Adoption Act of
1998 46
II.
Adoption Procedure under RA 8552 IRR
(Secs. 10-32) ............................................... 47
III. RA 8043: Inter-Country Adoption Act of
1995 49
Chapter XII. Support ...................................... 51
I.
Support................................................ 51
II.
Who are Obliged to Support Each Other
(Art. 195)...................................................... 51
III. Properties Answerable for Support (Art.
197-198) ...................................................... 52
IV. Order of Support (SDAB) .................... 52
Chapter XIII. Parental Authority.................... 53
I.
Parental Authority ............................... 53
II.
Substitute
and
Special
Parental
Authority....................................................... 54
III. Suspension or Termination of Parental
Authority....................................................... 55
IV. Rights and Duties of Children ............. 55
Chapter XIV. Funerals.................................... 56
I.
General Guidelines ............................. 56

CIVIL LAW REVIEWER

SUCCESSION
Table of Contents
Chapter I. Concept of Succession................59
I.
Definition of Succession (Art. 774, CC)
59
II.
Opening of Succession (Art. 777, CC) 59
III. Kinds of Succession (Art. 778, CC) ....59
IV. Heirs ....................................................60

Chapter V. Partition and Distribution of


Estate .............................................................. 83
I.
Concept of Partition ............................ 83
II.
Effects of Partition............................... 84
III. Nullification of Partition ....................... 84
IV. Important Periods in Partition ............. 85

Chapter II. Testamentary Succession ..........61


I.
Concept ...............................................61
II.
Testamentary Capacity .......................61
III. Formalities of Wills ..............................61
IV. Qualifications of Witnesses to a Notarial
Will 62
V. Qualifications of Witnesses to a Notarial
Will 63
VI. Institution of Heirs ...............................63
VII.
Applicable Principles of Private
International Law .........................................63
VIII.
Codicils
and
Incorporation
by
Reference ....................................................64
IX. Revocation of Wills and Testamentary
Dispositions..................................................64
X. Allowance and Disallowance of Wills..65
XI. Substitution of Heirs ............................66
XII.
Legitimes.........................................67
XIII.
Preterition........................................69
XIV.
Reserva Troncal .............................69
XV.
Disinheritance .................................70
XVI.
Legacies and Devises.....................71

Chapter VI. Application of the Important


Concepts through Sample Computational
Problems......................................................... 86
I.
Institution of Heirs ............................... 86
II.
Legitimes............................................. 86
III. Intestate Succession........................... 87
IV. Accretion ............................................. 87
V. Collation .............................................. 88

Chapter III. Intestate Succession..................74


I.
Causes
for
Legal
or
Intestate
Succession...................................................74
II.
The Intestate or Legal Heirs................74
III. Fundamental Underlying Principles in
Legal or Intestate Succession......................74
IV. Relationship (Arts. 963-969, CC) ........75
V. The Right of Representation (Art. 970,
CC) 75
VI. Order of Legal or Intestate Succession
76
VII.
Concurrence in Legal or Intestate
Succession...................................................77
VIII.
Outline of Intestate Shares .............77
IX. Order of Concurrence in the Case of an
Adopted Child (Art, 190, FC) .......................78
Chapter
IV.
Provisions
Common
to
Testamentary and Intestate Succession .....79
I.
Accretion .............................................79
II.
Capacity to Succeed ...........................80
III. Acceptance
and
Repudiation
of
Inheritance ...................................................81
IV. Collation (Arts. 1061-1077, CC)..........81

CIVIL LAW REVIEWER

OBLIGATIONS
Table of Contents
Chapter I. General Provisions.......................91
I.
Obligations ..........................................91
II.
Sources of Obligations ........................91
Chapter II. Nature and Effect of Obligations93
I.
Kinds of Prestations ............................93
II.
Breach of Obligation............................94
III. Fortuitous Event (Force Majeure) .......96
IV. Remedies to Creditors ........................96
V. Usurious Transactions and Rules on
Interest .........................................................97
Chapter III. Different Kinds of Obligations ..98
I.
Pure and Conditional Obligations .......98
II.
Reciprocal Obligations ......................100
III. Obligations with a Period ..................100
IV. Alternative and Facultative Obligations
101
V. Joint and Solidary Obligations ..........103
Effects of Prejudicial and Beneficial Acts
(Art.1212) ...................................................105
VI. Divisible and Indivisible Obligations..106
VII.
Oblligations with a Penal Clause ..106
Chapter IV. Extinguishment of Obligations
.......................................................................107
I.
Payment or Performance ..................107
II.
Loss or Impossibility..........................109
III. Condonation or Remission of the Debt
109
IV. Confusion or Merger of Rights ..........110
V. Compensation ...................................110
VI. Novation ............................................111
Charts: Payment & Performance ................114

CIVIL LAW REVIEWER

CONTRACTS
Table of Contents
Chapter I. General Provisions.....................122
I.
Classification of Contracts.................122
II.
Elements of Contracts.......................123
III. Stages of Contracts...........................123
IV. Charactertics of Contracts (MARCO) 123
Chapter II. Essential Requisites .................125
I.
Consent .............................................125
II.
Object ................................................127
III. Cause ................................................127
Chapter III. Forms of Contracts ..................129
I.
Rules .................................................129
II.
Kinds of Formalities...........................129
Chapter IV. Reformation of Contracts........130
Chapter V. Interpretation of Contracts.......130
Chapter VI. Defective Contracts .................131
I.
Rescissible Contracts (Arts. 1380-1389)
131
II.
Voidable Contracts (Arts. 1390-1402)
132
III. Unenforceable Contracts (Arts. 14031408) ..........................................................133
IV. Void or Inexistent Contracts (Arts. 14091422) ..........................................................134

CIVIL LAW REVIEWER

PROPERTY
Table of Contents
Chapter I. Definition and Classification of
Property.........................................................137
I.
Definition ...........................................137
II.
Classification .....................................137
Chapter II. Ownership ..................................144
I.
Definition ...........................................144
III. Specific Rights under the Civil Code.144
IV. Limitations on Real Right of Ownership
146
Chapter III. Accession..................................147
I.
Definition ...........................................147
II.
General Principles of Accession .......147
III. Kinds of Accession............................147
IV. Principles Governing Each Kind of
Accession...................................................147
Chapter IV. Quieting of Title........................152
I.
In General .........................................152
II.
Purpose .............................................152
III. Nature: Quasi in Rem........................152
IV. Requisites .........................................152
V. Prescription of Action ........................153
Chapter V. Co-Ownership............................154
I.
Definition ...........................................154
II.
Characteristics ..................................154
III. Difference between Co-ownership and
Joint Tenancy.............................................155
IV. Difference between Co-ownership and
Partnership.................................................155
V. Sources of Co-Ownership .................155
VI. Rights of Each Co-owner over the Thing
or Property Owned in Common .................157
VII.
Implication of Co-owners Right over
His Ideal Share ..........................................161
VIII.
Rules
on
Co-Ownership
Not
Applicable to CPG or ACP.........................161
IX. Special Rules on Ownership of Different
Stories of a House as Differentiated from
Provisions of the Condominium Act...........162
X. Extinguishment of Co-Ownership .....166
Chapter VI. Possession ...............................168
I.
Definition ...........................................168
II.
Degrees of Possession .....................169
III. Classes of Possession ......................169
IV. Cases of Possession.........................169
V. What Things May be Possessed ......170
VI. What May Not Be Possessed by Private
Persons......................................................171
VII.
Acquisition of Possession .............171
VIII.
Effects of Possession ...................173
IX. Effects of Possession in the Concept of
Owner ........................................................177
X. Presumption
in
Favor
of
the
Possessorfor Acquisitive Prescription ....178
XI. Possesion May Be Lost By ...............179

Chapter VII. Usufruct ................................... 181


I.
Concept............................................. 181
II.
Characteristics .................................. 181
III. Usufruct Distiguished from Lease and
Servitude.................................................... 181
IV. Classes of Usufruct........................... 182
V. Rights of Usufructuary ...................... 184
VI. Rights of the Naked Owner............... 186
VII.
Obligations of the Usufructuary .... 187
VIII.
Special Cases of Usufruct ............ 190
IX. Extinguishment of Usufruct............... 192
X. Conditions Not Affecting Usufruct..... 194
Chapter VIII. Easement ................................ 196
I.
Concept............................................. 196
II.
Essential Features ............................ 196
III. Classification of Servitudes............... 197
IV. General Rules Relating to Servitudes
198
V. Modes of Acquiring Easements ........ 198
VI. Rights and Obligations of Owners of
Dominant and Servient Estates ................. 199
VII.
Modes
of
Extinguishment
of
Easements................................................. 200
VIII.
Legal Easements .......................... 202
Chapter IX. Nuisance ................................... 212
I.
Definition ........................................... 212
II.
Classes ............................................. 212
III. Liability in Case of Nuisance............. 213
IV. Regulation of Nuisances ................... 214
Chapter X. Modes of Acquiring Ownership
....................................................................... 217
I.
Mode v. Title ..................................... 217
II.
Mode ................................................. 217
Chapter XI. Donation ................................... 222
I.
Nature ............................................... 222
II.
Requisites ......................................... 222
III. Kinds ................................................. 222
IV. Who May Give or Receive Donations
223
V. Who May Not Give or Receive
Donations................................................... 224
VI. Acceptance ....................................... 225
VII.
Form ............................................. 225
VIII.
What May Be Donated ................. 225
IX. Effect ................................................. 226
X. Revocation and Reduction................ 227
Chapter XII. Lease........................................ 232
I.
General Characteristics .................... 232
II.
Kinds ................................................. 232
III. Lease of Things ................................ 232

CIVIL LAW REVIEWER

LAND TITLES and DEEDS


Table of Contents
Chapter I: Background, Basic Concepts and
General Principles........................................239
I.
Definitions and Basic Concepts ........239
II.
Nature and stages.............................240
III. Purpose of Registration.....................240
IV. Modes of Acquiring Land Titles.........240
V. Jurisdiction ........................................240
Chapter 2: Torrens Certificate of Title .......241
I.
Original Certificate of Title or OCT....241
II.
Transfer Certificate of Title................241
III. Patents ..............................................241
Chapter 3: Original Registration.................242
I.
Laws Governing Land Registration...242
II.
Effect of Registration.........................242
III. Original Registration Proceeding ......242
IV. Attributes of and Limitation In Certificate
of Title and Registered Land (FIIC) ...........247
V. Judicial Confirmation of Imperfect or
Incomplete
Titles............................249
Chapter
4:
Cadastral
Registration
Proceedings..................................................251
I.
Steps
in
Cadastral
Registration
Proceedings ...............................................252
Chapter 5: Subsequent Registration..........253
I.
Two Types of Dealings......................253
II.
Necessity and Effects of Registration
253
III. Voluntary vs. Involuntary Dealings..253
IV. Registration of Voluntary Instruments in
General ......................................................254
V. Registration of Deeds of Sale and
Transfers....................................................255
VI. Mortgages and Leases......................256
VII.
Powers of Attorney; Trusts ...........257
VIII.
Involuntary Dealings .....................257

Chapter 6: System of Registration of


Unregistered Lands ..................................... 261
I.
Key Points......................................... 261
II.
Procedure ......................................... 261
Chapter 7: Registration of Public Lands ... 262
I.
Classification of Land of the Public
Domain ...................................................... 262
II.
Nature of Title to Public Lands
Conveyed .................................................. 262
III. Procedure of Conveying Public Land to
a Private Person ........................................ 262
IV. Director of Lands: Quasi-judicial officer
263
V. Modes of Alienating Public Lands:.... 263
VI.
Patents ......................................... 263
Chapter 8: Remedies of the Aggrieved Party
....................................................................... 264
Chapter 9: Reconstitution 0f Titles ........... 266
I.
Grounds ............................................ 266
II.
Petitions for Reconstitution ............... 266
III. Duties of the Land Registration Authority
266
IV. Effects
of
Fraud,
Deceit
and
Machination in the Reconstitution of Titles 266

CIVIL LAW REVIEWER

SALES
Table of Contents
Chapter I. The Contract of Sale ..................269
I.
Definition (Art 1458, CC) ...................269
II.
Elements ...........................................269
III. Stages ...............................................274
IV. Kinds of Sale .....................................275
V. Form ..................................................276
VI. Sale
Distinguished
From
Other
Contracts....................................................276
Chapter II. Obligations of the Seller and
Buyer .............................................................278
I.
Obligations of the Seller ....................278
II.
Obligations of the Buyer....................284
Chapter III. Double Sales .............................286
I.
General Rule .....................................286
II.
Requisites .........................................286
III. Rules Governing Sale of Movables,
Immovables and Unregistered Lands ........286
Chapter IV. Risk of Loss..............................288
I.
General Rule .....................................288
II.
Exceptions.........................................288
Chapter V. Documents of Title....................289
I.
In General .........................................289
II.
Negotiable Documents of Title..........289
III. Non-Negotiable Documents of Title ..289
Chapter VI. Remedies of the Seller and Buyer
.......................................................................291
I.
General Remedies (Art. 1191, CC) ...291
II.
Remedies of the Seller......................291
III. Remedies of the Buyer......................295
Chapter VII. Extinguishment of Sale ..........298
I.
In General .........................................298
II.
Conventional Redemption.................298
III. Equitable Mortgage ...........................299
IV. Legal Redemption .............................300
Chapter VIII. Philippine Bulk Sales Law (Act
3952) ..............................................................303
I.
Purpose .............................................303
II.
Coverage...........................................303
III. Duty of Seller.....................................303
IV. Effect of non-compliance...................304

CIVIL LAW REVIEWER

CREDIT TRANSACTIONS
Table of Contents
Chapter I. General Principles ......................307
I.
Types of Credit Transactions ............307
II.
Security .............................................307
III. Bailment ............................................307
Chapter II. Loan (Arts. 1933-1961, CC).......309
I.
Definition ...........................................309
II.
Characteristics of a Loan ..................309
III. Kinds of Loan: In General .................309
IV. Commodatum....................................309
V. Obligations
of
the
Bailee
in
Commodatum ............................................310
VI. Obligations
of
the
Bailor
in
Commodatum ............................................311
VII.
Mutuum or Simple Loan................311
VIII.
Interests ........................................312
IX. The Usury Law ..................................312
Chapter III. Deposit ......................................314
I.
Definition ...........................................314
II.
Kinds of Deposit ................................314
III. Characteristics of Deposit .................314
IV. Deposit Distinguished From Mutuum
and Commodatum .....................................314
V. Obligations of the Depositary............314
VI. Obligations of the Depositor..............317
VII.
Extinguishment of Deposit (Art. 1995)
317
VIII.
Necessary Deposit........................317
IX. Judicial Deposit .................................318
Chapter IV. Guaranty ...................................319
I.
Definition ...........................................319
II.
Characteristics ..................................319
III. Classification .....................................319
IV. Rules Governing Guaranty ...............319
V. Guaranty Distinguished from Others.322
VI. The Guarantor (Arts. 2056-2057)......322
VII.
Effects of Guaranty .......................322
VIII.
Extinguishment of Guaranty .........325
Chapter V. Legal and Judicial Bonds.........326
Chapter VI. Suretyship.................................327
Chapter VII. Pledge, Mortgage, Antichresis
.......................................................................328
I.
Essential Requisites Common to Pledge
and Mortgage (Art. 2085)...........................328
II.
Pledge ...............................................329
III. Mortgage ...........................................332
IV. Foreclosure of Mortgage (Art. 2085).334
V. Antichresis.........................................336
VI. Chattel Mortgage...............................336

Chapter VIII. Concurrence and Preference of


Credits........................................................... 338
I.
General Provisions............................ 338
II.
Classification of Credits .................... 338
III. Preference of Credits ........................ 338

CIVIL LAW REVIEWER

AGENCY
Table of Contents
Chapter I. Nature, Form, and Kinds of Agency
.......................................................................341
I.
Definition [Art. 1868, CC] ..................341
II.
Purpose .............................................341
III. Characteristics [CNPPBF].................342
IV. Essential Elements............................342
V. Determination of Existence of Agency
342
VI. Agency v Similar Contracts ...............343
VII.
Kinds .............................................344
Chapter II. Obligations of the Agent...........348
I.
To Carry Out the Agency ..................348
III. To Advance the Necessary Funds [Art.
1886, CC]...................................................349
IV. To Act in Accordance with Principals
Instructions.................................................349
V. To Prefer Interest of Principal Over
Personal Interest........................................349
VI. To Render Accounts and Deliver Things
Received by Virtue of the Agency..............349
VII.
To Be Responsible for Substitutes350
VIII.
To Pay Interest .............................350
IX. To Answer for His Negligence or Fraud
[Art. 1909, CC] ...........................................350
X. Special
Obligations
of
Factor/
Commission Agents ...................................350
Chapter III. Liabilities of the Agent .............352
I.
Liability to Third Persons...................352
II.
Liability to the Principal .....................352
III. Liability of Two or More Agents.........353
Chapter IV. Obligations of the Principal ...354
I.
To Comply with the obligations
contracted by the agent .............................354
II.
To Advance the Necessary Sums and
Reimburse the Agent .................................355
III. To Indemnify the Agent for Damages355
IV. To Pay the Agents Compensation ...356
V. To Be Solidarily Liable ......................356
Chapter V. Extinguishment of Agency......357
Extinguishment of Agency [EDWARD] ......357
I.
Expiration of the period for which it was
constituted..................................................357
II.
Death,
civil
interdiction,
insanity,
insolvency ..................................................357
III. Withdrawal of the agent ....................357
IV. Accomplishment of the object of the
agency .......................................................357
V. Revocation ........................................357
VI. Dissolution of the firm/corp. Which
entrusted/accepted the agency..................358

CIVIL LAW REVIEWER

PARTNERSHIP
Table of Contents
Chapter I. Nature, Creation, Kinds of
Partnership ...................................................361
I.
Essential Features ............................361
II.
Characteristics ..................................362
III. Distinctions ........................................362
IV. Rules to Determine Existence...........363
V. How Partnership is Formed ..............363
VI. Partnership Term ..............................363
VII.
Kinds of Partnerships....................363
Chapter
II.
Obligations
of
the
Partnership/Partners Among Themselves 366
CRRAMP-LS..............................................366
I.
Make Contributions as Promised ......366
III. Manage the Partnership....................367
IV. Render Full Information.....................368
V. Account for benefits ..........................368
VI. Reimburse expenses ........................368
VII.
Liable for Partnership Contracts ...368
VIII.
Solidarily Liable with Partnership.369
Chapter
III.
Obligations
of
the
Partnership/Partners as to Third Persons.370
LANN .........................................................370
I.
Operate Under a Firm Name (Art. 1815,
CC) 370
II.
Bound by Partnership Admission......370
III. Bound by Notice Partner ...................370
IV. Liable for Acts of the Partnership......370
Chapter IV. Rights of Partners ...................371
I.
Share in Losses and Profits ..............371
II.
Associate Another in His Interest......371
III. Access to Partnership Books ............371
IV. Obtain Formal Account .....................371
V. Property Rights .................................371
VI. Convery Real Property (Art. 1819, CC)
372
Chapter V. Rights of the Partnership ........374
I.
Acquire Immovables..........................374
II.
Preference of Creditors .....................374
Chapter VI. Dissolution and Winding Up ..375
I.
Definitions .........................................375
II.
Causes for Dissolution ......................375
III. Consequences of Dissolution ...........375
IV. Partners Liability...............................376
Chapter VII.
Rights of Partners Upon
Dissolution....................................................377
I.
Right to Wind Up ...............................377
II.
Right to Damages for or to Continue
Business on Wrongful Dissolution .............377

III. Right to Lien or Retention, to Stand in


Place of Creditor, to be Indemnified .......... 377
IV. Right of Retiring/Deceased Partner (Art.
1841, CC) .................................................. 377
V. Right of Account (Art. 1842, CC) ...... 378
Chapter VIII. Rules on Settlement (Art. 1839,
CC)................................................................. 379
Chapter IX. Limited Partnership ................ 380
I.
Definition ........................................... 380
II.
Forming/Amending
a
Limited
Partnership (Art. 1844, CC) ....................... 381
III. Limited Partner.................................. 382
IV. General Partner ................................ 384
V. Dissolution ........................................ 384
VI. Settling Accounts for Dissolution ...... 385

CIVIL LAW REVIEWER

TORTS & DAMAGES


Table of Contents
Chapter I. Introduction, Definitions............388
A. Tort and Quasi-Delict ........................388
B. Damages ...........................................389
Chapter II. Concept of Quasi-Delict............390
A. Elements ...........................................390
B. Distinguished.....................................390
Chapter III. Negligence ................................392
A. Concept of Negligence......................392
B. Degrees of Negligence......................393
C. Proof of Negligence...........................393
D. Defenses ...........................................394
Chapter IV. Causation..................................396
A. Proximate Cause...............................396
Chapter V. Persons Liable...........................399
A. The Tortfeasor...................................399
B. Vicarious Liability ..............................399
C. Specific Liability.................................403
D. Joint and Solidary Liability ................407
E. Civil Liability Arising From Crime...........407
F.
Prescription .......................................408
Chapter VI. Tortious Interference With
Contract.........................................................409
Chapter VII. Torts with Independent Civil
Action ............................................................410
A. Violation of Civil and Political Rights.410
B. Defamation, Fraud, Physical Injuries 410
Chapter VIII. Human Relations Provisions 413
A. Abuse of Rights.................................413
B. Acts Contra Bonus Mores .................413
Other Torts ...............................................414
C. Dereliction of Duty.............................414
D. Illegal Acts .........................................414
E. Unfair Competition ............................414
F.
Violation of Human Dignity................414
Chapter IX. Damages ...................................415
A. Definition and Concept......................415
B. Kinds of Damages.............................415

CIVIL LAW REVIEWER

PRIVATE INTERNATIONAL LAW


Table of Contents
Chapter I. Introduction.................................427
Chapter II. Jurisdiction ................................429
I.
Bases of Exercise of Judicial Jurisdiction
429
II.
Exercise of Jurisdiction .....................429
III. Ways of Dealing with Jurisdiction in a
Conflicts Problem.......................................430
Chapter III. Choice of Law ...........................431
I.
Approaches to Choice of Law ...........431
Chapter IV. Characterization .......................433
I.
Types of Characterization .................433
II.
Depecage ..........................................433
Chapter V. Renvoi ........................................434
I.
Definition ...........................................434
II.
Ways of Dealing with Renvoi ............434
Chapter VI. Notice and Proof of Foreign Law
.......................................................................435
I.
Proof of Foreign Law.........................435
II.
Exceptions to the Application of Foreign
Law 435
Chapter VII. Nationality................................436
I.
Determination of Nationality ..............436
II.
Procedure for Naturalization .............436
III. Loss of Philippine Citizenship ...........437
IV. Problems in Applying the Nationality
Principle .....................................................438
Chapter VIII. Domicile ..................................439
I.
Domicile ............................................439
II.
Comparative Merits and Demerits of
Domicile and Nationality ............................440
Chapter IX. Principles on Personal Status
and Capacity.................................................441
I.
Definition ...........................................441
II.
Beginning and End of Personality.....441
III. Absence ............................................441
IV. Name.................................................442
V. Age of Majority ..................................442
VI. Capacity ............................................442
Chapter X. Family Relations........................443
I.
Marriage ............................................443
II.
Divorce and Separation.....................445
III. Annulment and Declaration of Nullity 445
IV. Parental Relations.............................446
V. Adoption ............................................446

Chapter XI. Property .................................... 447


I.
Controlling LawLex Situs/Lex Rei
Sitae 447
II.
Exceptions to Lex Situs..................... 447
III. Situs of Certain Properties ................ 447
Chapter XII. Contracts ................................. 449
I.
Extrinsic Validity of Contracts ........... 449
II.
Extrinsic Validity of Contracts ........... 449
III. Capacity to Enter Into Contracts....... 449
IV. Choice of Law Issues in Conflicts
Contracts Cases ........................................ 449
V. Limitation Choice of Law................... 450
VI. Applicable Law in the Absence of
Effective Choice......................................... 450
Chapter XIII. Succession ............................. 451
I.
Extrinsic Validity (Arts. 17, 815-817, CC)
451
II.
Intrinsic Validity ................................. 451
III. Interpretation of Wills ........................ 451
IV. Revocation ........................................ 451
V. Probate.............................................. 451
VI. Administration of Estates .................. 452
VII.
Trusts............................................ 452
Chapter XIV. Torts and Crimes ................... 453
I.
Torts .................................................. 453
II.
Crimes............................................... 454
Chapter XV. Torts and Crimes .................... 455
I.
Personal Law of Corporations .......... 455
II.
Domicile/Residence of Corporations 455
III. Jurisdiction Over Foreign Corporations
455
IV. Right of Foreign Corporations to Bring
Suit 456
Chapter XVI. Foreign Judgments ............... 457
I.
Recognition v. Enforcement.............. 457
II.
Bases of Recognition and Enforcement
457
III. Policy
of
Preclusion
Underlying
Recognition and Enforcement ................... 457
IV. Requisites
for
Recognition
or
Enforcement .............................................. 457
V. Procedures for Enforcement ............. 457
VI. Effect of Foreign Judgment in the
Philippines ................................................. 458

TABLE of CONTENTS

PERSONS & FAMILY RELATIONS


Table of Contents
Chapter I. Civil Personality..............................3
I.
Concept and Classes of Persons..........3
II.
Capacity to Act and Restrictions
Thereon..........................................................5
Chapter II. Citizenship and Domicile..............8
I.
Who are Filipinos ..................................8
II.
Domicile ................................................8
Chapter III. Marriage.........................................9
I.
Definition and Nature of Marriage .........9
II.
Requisites of Marriage ..........................9
III. Marriages Solemnized Abroad............11
IV. Presumption of Marriage.....................11
Chapter IV. Void Marriages ...........................13
I.
Grounds ..............................................13
II.
Period to File Action or Raise Defense
15
III. Effects of Nullity ..................................16
Chapter V. Voidable Marriages .....................18
I.
Grounds for Annulment (Art. 45, FC) ..18
II.
Marriage When One Spouse Absent ..21
III. Effects of Pending
Actions/Decree
(Art. 49, FC) .................................................22
IV. Voidable v. Void Marriage ...................23
V. Voidable v. Legal Separation ..............23
VI. Jurisdiction ..........................................23
Chapter VI. Legal Separation, Divorce and De
Facto Separation ............................................24
I.
Grounds for Legal Separation.............24
II.
Defenses .............................................25
III. When to File/Try Actions .....................25
IV. Effects of Filing Petition for Legal
Separation....................................................25
V. Effects of Decree for Legal Separation
25
VI. Reconciliation......................................26
VII.
Divorce............................................26
VIII.
De Facto Separation.......................27
Chapter VII. Rights and Obligations Between
Husband and Wife..........................................28
I.
Obligations of Spouses (Arts. 68-71, FC)
28
II.
Rights of Spouses (Arts. 72-73, FC) ...28
III. Use of Surname ..................................28
Chapter VIII. Property Relations Between
Spouses ..........................................................29
I.
General Provisions..............................29
II.
Donations by Reason of Marriage ......30

III. Absolute Community of Property ........ 31


IV. Conjugal Partnership of Gains ............ 34
V. Separation
of
Properties
During
Marriage....................................................... 38
VI. Property regime of unions without
marriage....................................................... 39
Chapter IX. The Family and the Family Home
......................................................................... 41
I.
Family.................................................. 41
II.
Family Home....................................... 41
Chapter X. Paternity and Filiation ................ 43
I.
Kinds of Filiation.................................. 43
II.
Impugning Legitimacy (Art. 166) ......... 43
III. Proof of Filiation (Arts. 172 and 175 (1))
44
IV. Legitimation (Arts. 177 and 182)......... 45
V. Rights of Legitimate and Illegitimate
Children (SSS)............................................. 45
Chapter XI. Adoption ..................................... 46
I.
RA 8552: Domestic Adoption Act of
1998 46
II.
Adoption Procedure under RA 8552 IRR
(Secs. 10-32) ............................................... 47
III. RA 8043: Inter-Country Adoption Act of
1995 49
Chapter XII. Support ...................................... 51
I.
Support................................................ 51
II.
Who are Obliged to Support Each Other
(Art. 195)...................................................... 51
III. Properties Answerable for Support (Art.
197-198) ...................................................... 52
IV. Order of Support (SDAB) .................... 52
Chapter XIII. Parental Authority.................... 53
I.
Parental Authority ............................... 53
II.
Substitute
and
Special
Parental
Authority....................................................... 54
III. Suspension or Termination of Parental
Authority....................................................... 55
IV. Rights and Duties of Children ............. 55
Chapter XIV. Funerals.................................... 56
I.
General Guidelines ............................. 56

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CIVIL LAW REVIEWER

Prof. Carolina Austria


Faculty Editor

Anisah Azis
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Dana Crisostomo
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Mary Beley
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Joan Batimana
Writers

CIVIL LAW
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Subject Editor

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Kristine Bongcaron
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Editors-in-Chief

PRINTING & DISTRIBUTION


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DESIGN & LAYOUT


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LECTURES COMMITTEE
Michelle Arias
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Heads
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Volunteers

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LOGISTICS
Charisse Mendoza

SECRETARIAT COMMITTEE
Jill Hernandez
Head
Loraine Mendoza Faye Celso
Mary Mendoza Joie Bajo
Members

Chapter I. Civil Personality


I.

II.

I.

CONCEPT AND CLASSES OF PERSONS


A. NATURAL PERSONS
B. JURIDICAL PERSONS
CAPACITY AND RESTRICTIONS THEREON
A. PRESUMPTIONS OF CAPACITY
B. RESTRICTIONS
1. MINORITY
2. INSANITY
3. BEING DEAF-MUTE
4. PRODIGALITY
5. CIVIL INTERDICTION
6. FAMILY RELATIONS
7. ABSENCE

Concept and Classes of Persons

Concept of Persons
Personality is the quality derived from
being a person; it is an attribute of
persons.
Characteristics
1. It is not a being, but a quality of certain
beings.
1. It is not a physical element, but a juridical
concept.
2. It is not an object of contract, or of
possession, and cannot be impaired by
agreement.
2. It is a matter of public interest.
Article 37, Civil Code. Juridical capacity, which is
the fitness to be the subject of legal relations, is
inherent in every natural person and is lost only
through death. Capacity to act, which is the power
to do acts with legal effect, is acquired and may be
lost.

Kinds of Juridical Capacity


1. Juridical Capacity:
aka as Legal Capacity/Personality =
Fitness of man to be the subject of legal
relations
It refers to the aptitude for the holding
and enjoyment of rights.
It is inherent in every natural person
and is lost only through death. This
attaches to man by the mere fact of his
being a man.
2. Capacity to Act:
It refers to the power to do acts with
legal effect.
It is conditional and variable. It is
acquired and may be lost. It requires
both intelligence and will.
Note: Juridical capacity can exist even
without capacity to act; the existence of

3
PERSONS & FAMILY RELATIONS

PERSONS & FAMILY RELATIONS TEAM

Chapter I. CIVIL PERSONALITY

PERSONS & FAMILY RELATIONS

CIVIL LAW REVIEWER

the latter implies that of the former. The


capacity or incapacity of persons depends
upon the law. Both juridical capacity and
capacity to act are not rights but qualities of
persons; hence, they cannot be renounced.

A. Natural Persons (asked in 99 bar exam)


General Rule: Birth determines personality (Art
40). Death extinguishes civil personality (Art
42).
Exception: a conceived child shall be
considered born for all purposes that are
FAVORABLE to it, provided it be born
later (Art 40, 2nd clause) with the following
circumstances:
a. From the time it is completely delivered
from the mother's womb.
b. But if the fetus had an intra-uterine life
of less than seven months, it should
survive for at least 24 hours after its
complete delivery. (Art. 41, CC)
Article 40, Civil Code. Birth determines personality;
but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be
born later with the conditions specified in the
following article.

Birth = complete removal of the fetus from the


mothers womb; before birth, a fetus is merely
part of the mothers internal organs
Personality of Conceived Child
1. Limited = only for purposes FAVORABLE to
it
2. Conditional = it depends upon the child
being born alive later
Period of Conception = the first 120 days of
the 300 days preceding the birth of the child
A conceived child can acquire rights while still in
the mothers womb. It can inherit by will or by
intestacy.
Geluz v CA, (1961)
An aborted fetus had conditional personality but
never acquired legal rights/civil personality
because it was not alive at the time of delivery
from the mothers womb. No damages can be
claimed in behalf of the unborn child.
Article 41, Civil Code For civil purposes, the fetus
is considered born if it is alive at the time it is
completely delivered from the mother's womb.
However, if the fetus had an intra-uterine life of less
than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery
from the maternal womb.

Chapter I. CIVIL PERSONALITY

Complete
respiration
independent life

test/sign

of

Note: For a fetus that had an intra-uterine life


of less than seven months, it is necessary
that it lives for at least 24 hours, for it to be
considered born.
Article 42, Civil Code.
extinguished by death.

Civil

personality

is

The effect of death upon the rights and obligations of


the deceased is determined by law, by contract and
by will.

People v. Tirol, (1981)


Criminal liability ends with death BUT civil
liability may be charged against the estate.
Article 43, Civil Code. If there is a doubt, as
between two or more persons who are called to
succeed each other, as to which of them died first,
whoever alleges the death of one prior to the other,
shall prove the same; in the absence of proof, it is
presumed that they died at the same time and there
shall be no transmission of rights from one to the
other.

Note: Article 43 provides a statutory


presumption when there is doubt on the
order of death between persons who are
called to succeed each other (only).
Joaquin v. Navarro, (1948)
The statutory presumption of Article 43 was not
applied due to the presence of a credible
eyewitness as to who died first.
Presumption in the Rules of Court (Rule 123,
sec. 69, par. ii)
1.
2.
3.
4.

5.
6.

Age
Both under 15
Both above 60
One under 15, the
other above 60
Both over 15 and
under 60; different
sexes
Both over 15 and
under 60; same sex
One under 15 or
over 60, the other
between those ages

Presumed Survivor
Older
Younger
One under 15
Male

Older
One between 15 and 60

Note: Applicable only to two or more persons


who perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can
be inferred.

PERSONS & FAMILY RELATIONS

CIVIL LAW REVIEWER

Chapter I. CIVIL PERSONALITY

B. Juridical Persons
Juridical Persons (Art 44, Civil Code)
1. The State and its Political subdivisions;
2. Other Corporations, Institutions and Entities
for public interest or purpose, created by
law;
3. Corporations,
Partnerships,
and
Associations for private interest or purpose
to which the law grants a juridical
personality.
Governing Laws (Art 45, Civil Code)
Juridical Person
1. State

2.
3.
4.
5.

Political
Subdivision
Public
Corporation
Private
Corporation
Partnerships

Governed by
Constitution
(defines
organization and limits
rights vis--vis citizens)
Charter creating them

its
its

Article 39, Civil Code. The following circumstances,


among others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-mute,
penalty, prodigality, family relations, alienage,
absence,
insolvency
and
trusteeship.
The
consequences of these circumstances are governed
in this Code, other codes, the Rules of Court, and in
special laws.
Capacity to act is not limited on account of religious
belief or political opinion.
A married woman, twenty-one years of age or over,
is qualified for all acts of civil life, except in cases
specified by law.

General Rule: Incapacitated persons are not


exempt from certain obligations arising from
his acts or property relations.
________________

Charter creating them

1. Minority
Corporation Code, Articles of
Incorporation and By-Laws
Stipulations of the parties and
suppletorily by the general
provisions on partnership of
the Civil Code

Rules
1. Juridical persons may acquire and
possess property of all kinds, incur
obligations, and bring civil or criminal
actions (Art. 46, CC)
2. Upon dissolution of corporations or
institutions and other entities for public
interest, their property and assets shall be
disposed of in pursuance of the law or
charter creating them. (Art. 47, CC)

II. Capacity to Act and Restrictions


Thereon
A. Presumption of Capacity
Standard Oil Co. v. Arenas, (1911)
Capacity to act is presumed until the contrary is
proven, and that it be the reason for the specific
act attributed. Proof of restriction: habituality,
presence at the time, no other cause

B. Restrictions
Article 38, Civil Code. Minority, insanity or
imbecility, the state of being a deaf-mute, prodigality
and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated
person from certain obligations, as when the latter
arise from his acts or from property relations, such
as easements.

RA 6809 (1989): An act lowering the age of


majority from twenty-one to eighteen years.
Effects on Contracts
a. they cannot give consent to a contract
[Art 1327 (1), CC]
b. a contract where one of the parties is a
minor is voidable [Art 1390(1),CC]
c. a contract is unenforceable when both
of the parties are minors (incapable of
giving consent) [Art 1403(3), CC]
d. minority cannot be asserted by the
other party in an action for annulment
(Art 1397, CC)
e. not obliged to make restitution except
insofar as he has been benefited (Art
1399, CC)
f. minor has no right to demand the
thing/price voluntarily returned by him
(Art 1426, CC)
g. minor has no right to recover
voluntarily paid sum or delivered thing, if
consumed in good faith (Art 1427, CC)
h. must pay reasonable amount for
necessaries delivered to him (Art 1489,
CC)

Mercado v. Espiritu, (1918)


Estoppel works against minors who
misrepresent their ages in a contract
and are compelled to comply with its
terms.
Bambalan v. Maramba, (1928)

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CIVIL LAW REVIEWER

When a minor made no active


misrepresentation as to his minority and
such minority is known to the other
party, the contract is voidable (Art 1403)
as to the minor.
Braganza v. Villa Abrille, (1959)
Minors are obliged to make restitution
insofar as they have been benefited (Art
1399)
Effects on Marriage
a. May not yet contract marriage (Art 5,
FC)
b. marriages, where one of the parties is
below 18, even with the consent of
parents/guardians, are VOID (Art 35,
FC)

Chapter I. CIVIL PERSONALITY

c.

read personally by him or communicated


to him by 2 persons (Art 807, CC)
cannot be a witness to the execution of
a will (Art 820, CC)

4. Prodigality
Martinez v. Martinez, (1902)
A spendthrift or a prodigal is a person,
who, by excessive drinking, gambling,
idleness or debauchery of any kind shall
so spend, waste or lessen his estate as
to expose himself or his family to want
or suffering. The acts of prodigality
must show a morbid state of mind.
Note: It is not the circumstance of
prodigality, but the fact of being under
guardianship that restricts capacity to
act.

2. Insanity
Insanity includes many forms of mental
disease, either inherited or acquired. A
person may not be insane but only mentally
deficient
(idiocy,
imbecility,
feeblemindedness).
Effect on Contracts
a. incapacity to give consent to a
contract [Art 1327(2), CC]
b. contracts entered into during lucid
intervals are valid (Art. 1328, CC)
c. restitution of benefits (Art 1399, CC)
Effect on Crimes
a. General rule: EXEMPTED from criminal
liability
b. Exception: acted during lucid interval
Effect on Marriage
a. may be annulled if either party was of
unsound mind unless the such party
after coming to reason, freely cohabited
with the other [Art 45(2), FC]
b. action for annulment of marriage must
be filed by the sane spouse who had no
knowledge of the others insanity; or by
any relative/guardian of the insane; or
by the insane spouse during a lucid
interval or after regaining sanity [Art
47(2), FC]

3. State of Being Deaf-Mute


a. cannot give consent to a contract if
he/she also does not know how to
write [Art 1327(2), CC]
b. can make a valid WILL, provided: the
contents of the same have either been

5. Civil Interdiction
a. It is an accessory penalty imposed
upon persons who are sentenced to a
principal penalty not lower than
reclusion temporal (article 41, Revised
Penal Code).
b. offender is deprived of rights of
parental authority, or guardianship, of
marital authority, of the right to manage
his property and of the right to dispose
of such (Art 34, RPC)
c. for the validity of marriage settlements,
the participation of the guardian shall
be indispensible (Art 123, CC)
6. Family Relations
a. justifying circumstance if acted in
defense of person/rights of spouse,
ascendants,
descendants,
brothers/sisters, and other relatives up
th
to the 4 civil degree [Art 11(2), RPC]
b. mitigating circumstance if acted in the
immediate vindication of a grave
offense/felony committed against his
spouse, ascendants or relatives of the
same civil degree [Art 12(5), RPC]
c. incestuous and void marriages:
between
ascendants
and
descendants of any degree;
between brothers and sisters,
whether full or half-blood. (Art 37,
FC)
d. donations/grants
of
gratuitous
advantage between spouses during
the marriage shall be VOID, except
moderate gifts during family occasions
(Art 87, FC)

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PERSONS & FAMILY RELATIONS

CIVIL LAW REVIEWER

e. descendants cannot be compelled to


testify in a criminal case, against his
parents and grandparents
UNLESS: crime was against the
descendant OR by one parent
against the other (Art 215, FC)
f. spouses cannot sell property to each
other, except:
absolute separation is agreed upon
in the marriage settlements
judicial separation of property (Art
1490, CC)
7. Absence
Article 390, Civil Code. After an absence of seven
years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for
all purposes, except for those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may
be opened. (n)
Art. 391, Civil Code. The following shall be
presumed dead for all purposes, including the
division of the estate among the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has
taken part in war, and has been missing
for four years;
3. A person who has been in danger of
death under other circumstances and his
existence has not been known for four
years.

Article 124, FC
a. administration and enjoyment of the
CPG shall belong to both spouses
jointly
b. in case of disagreement, husbands
decision shall prevail, subject to
recourse to the court by the wife for
proper remedy
c. if one spouse is incapacitated/unable
to administer, sole powers of
administration may be assumed by the
other spouse.
d. General Rule: This power does not
include disposition/encumbrance.
Exception: judicial authority or
written consent of other spouse

Chapter I. CIVIL PERSONALITY

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CIVIL LAW REVIEWER

Chapter II. CITIZENSHIP AND DOMICILE

Chapter II. Citizenship and Domicile


(asked in 75, 81, 87, 93, 05 and 08 bar
exams)
I.
II.

WHO ARE FILIPINO CITIZENS


DOMICILE
A. REQUISITES OF DOMICILE
B. KINDS OF DOMICILE

I.

Who are Filipinos

1. Domicile of Origin
Domicile of parents of a person at the
time he was born.
2. Domicile of Choice
Domicile chosen by a person, changing
his domicile of origin.
A 3rd requisite is necessary intention
not to return to ones domicile as his
permanent place.

1. Those who are citizens of the Philippines at


the time of the adoption of the 1987
Constitution;
2. Those whose fathers or mothers are
citizens of the Philippines;
3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority; and
4. Those who are naturalized in accordance
with law. (Art IV, 1, 1987 Philippine
Constitution)
Note: These have superseded the rules on
citizenship enumerated in the Civil Code.
Citizen = owes allegiance to the state and is
entitled to its protection

II. Domicile
For Natural Persons
the place of their habitual residence (Art.
50, CC).
For Natural Persons
the place where their legal representation
is established, or where they exercise their
primary functions, unless there is a law or
other provision that fixes the domicile (Art.
51, CC).
Domicile vs. Residence
While domicile is permanent (there is intent
to remain), residence is temporary and may
be changed anytime (there is no necessary
intent to remain).
________________

A. Requisites of Domicile (Callejo v. Vera)


1. Physical Presence
2. Intent to remain permanently
manendi)

B. Kinds of Domicile

(animus

3. Domicile by Operation of Law (i.e., Article


69, domicile of minor)
Romualdez-Marcos
vs.
Comelec
(1995) A married woman does not
lose her domicile to her husband.

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CIVIL LAW REVIEWER

Chapter III. Marriage

Chapter III. MARRIAGE


quasi-delict and is governed by the provisions of this
Chapter.

DEFINITION AND NATURE OF MARRIAGE


REQUISITES OF MARRIAGE
A. ESSENTIAL REQUISITES
B. FORMAL REQUISITES
III. MARRIAGES SOLEMNIZED ABROAD
IV. PRESUMPTION OF MARRIAGE

I.

I.
II.

Definition and Nature of Marriage

(asked in 91, 92 and 99 bar exams)


Definition of Marriage (Art 1 FC)
What
Who
How
Purpose
Significance

SPECIAL CONTRACT of permanent


union
Between a MAN and a WOMAN
Entered into in accordance with LAW
Establishment of CONJUGAL and
FAMILY life
FOUNDATION of the family and an
INVIOLABLE SOCIAL INSTITUTION
whose nature, consequences and
incidents are governed by law and not
subject to stipulations EXCEPT that
marriage settlements may fix the
property relations during the marriage
within the limits provided by this code.

Breach of Promise to Marry


(asked in 09 bar exam)
1. As a general rule breach of promise to
marry is not an actionable wrong
(Tanjanco v CA, Wassmer v Velez) and
cannot give rise to liability for damages
in line with the principle of freedom of
consent in marriage (Art 2(2) Family
Code). (Reyes)
2. However damages may be claimed based
on the principles laid down in Art 19-21 &
2176 of the CC
Art. 19, Civil Code. Every person must, in the
exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and
observe honesty and good faith.
Art. 20, Civil Code. Every person who, contrary to
law, wilfully or negligently causes damage to another
shall indemnify the latter for the same.
Art. 21, Civil Code. Any person who wilfully causes
loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
Art. 2176, Civil Code. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a

EXPENSES or other incidents that


directly arose from the contract to marry
can be claimed IF the breach of promise
was done in a manner considered as
contrary to morals, good customs or
public policy (cost of wedding
preparations). (Wassmer v Velez)
LOST WAGES arising from voluntary
dismissal in anticipation of marriage can
be sued for. (Tanjanco v CA)
EXPENSES made for the renovation of
an anticipated conjugal home can be
sued for. (Piccininni v. Hajus-US
Jurisprudence)

II. Requisites of Marriage


(asked in 76, 82, 89, 90, 99, 02, 04, 07,
and 09 bar exams)

A. Essential Requisites of Marriage


Essential Requisites [LC]
1. Legal Capacity of the contracting parties,
who must be a male and a female
2. Consent (of the parties) freely given in the
presence of a solemnizing officer. (Art. 2
FC)
Legal Capacity
Male or female>=18, not under any
impediments
mentioned
in
Art
37
(incestuous marriage) & Art 38 (marriage
against public policy), may contract
marriage. (Art 5)
Must be Male and Female
1. Jones v Hallahan, (1973): Application for
marriage license was denied since marriage
is defined by law as a contract entered into
between a man and a woman.
2. Silverio v Republic, (2007): Changing of
gender in ones birth certificate was denied;
otherwise, it would result in confusion and
would allow marriage between persons of
the same sex which is in defiance of the law,
as marriage is a union between a man and a
woman.
Note: The best source for citing the requirement
(of male/female) is still statutory, as provided
explicitly in the Family Code.
Consent Freely Given
People v Santiago, (51 Phil 68): A marriage
entered into by a person whose real intent is

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CIVIL LAW REVIEWER

Chapter III. MARRIAGE

to avoid prosecution for rape is void for total


lack of consent. The accused did not intend
to be married. He merely used such
marriage to escape criminal liability.
Absence
and
Requisites
Effect
Illustration

Defect

Absence
VOID
- marriage
entered into by
a person <18
(Art 35 (1))
- marriage
entered into by
persons of the
same sex
(Jones
v
Hallahan)

of

Essential

Defect
VOIDABLE
- consent
of
either
party
was obtained
through fraud,
force,
intimidation or
undue
influence
(Art 45 (3)
(4)FC)

- marriage
contracted
through mistake
of
one
contracting
party as to the
identity of the
other
(Art 35 (5))

d. A Military commander of a unit may


solemnize marriages in articulo mortis
between persons within the zone of
military operation. (Art 7,32 FC)
e. Consul-general, consul or vice-consul
may solemnize marriages between
Filipino citizens abroad. (Art 7,10 FC)
f. Municipal and City Mayors (LGC sec
444 and 455)
2. Marriage is void when solemnized by any
person not legally authorized to perform
marriages unless either or both parties
believed in good faith that the solemnizing
officer had legal authority to do so. (Art 35
(2))
3. Absence & Irregularity of Authority of a
solemnizing officer

Effect

Illustration

B. Formal Requisites of Marriage


Formal Requisites [AVC]
1. Authority of Solemnizing Officer
2. A Valid marriage License
3. Marriage Ceremony (Art 4 FC)
Authority of Solemnizing Officer
1. Who may solemnize marriage:
(JCSPAMM)
a. Incumbent member of the Judiciary
within his jurisdiction. (Art 7 FC)
b. Priest, Rabbi, Imam or Minister of any
Church or Religious Sect. Must be:
Duly authorized by his church or
religious sect
Registered with the civil registrar
general
Acting within the limits of the written
authority granted to him by his
church or religious sect.
At least one of the contracting
parties belongs to the solemnizing
officers church or religious sect. (Art
7 FC)
c. Ship Captain or Airplane Chief may
solemnize a marriage in articulo mortis
between passengers or crew members
(Art 7,31 FC)

Absence
VOID

Marriage is
void
when
solemnized by a
priest not duly
authorized by his
Church
to
solemnize
marriage.
(Art 7 FC)

Irregularity
No effect on
validity but party
responsible will
be liable.
lack of valid
notification
of
both
parties
desiring
a
ceremony in a
remote
place
was held to be
only
a
mere
IRREGULARITY
(Navarro
vs.
Domagtoy 1996)

Marriage License
1. Marriages Exempt from marriage license
requirement (AREC)
a. Marriage in Articulo mortis (Art. 27, FC)
b. Marriage in Remote and inaccessible
places (Art. 28, FC)
c. Marriages by Muslims and Ethnic
cultural minorities provided they are
solemnized in accordance with their
customs, rites or practices. (Art. 33, FC)
d. Marriage by parties who have Cohabited
for at least 5 years without any legal
impediment. (Art. 34, FC, Ninal v
Badayog (2000))
2. Absence & Irregularity of Marriage License
Effect

Illustration

Absence
VOID

Issuance
of the Civil
Registrar of a
CERTIFICATE

Irregularity
No
effect
on
validity but party
responsible will be
liable.
mere
IRREGULARITIES
in the marriage
license, such as a

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Absence
DUE SEARCH
AND
INABILITY TO
FIND
the
application of a
marriage
license means
its
absence,
thus rendering
the
marriage
VOID.
(Republic
v
CA)

Chapter III. MARRIAGE


Irregularity
typographical
error, do not affect
the validity of a
marriage.
(Alcantara
v
Alcantara)

Before a
marriage can
be solemnized,
a
valid
marriage
license MUST
FIRST
BE
PRESENTED,
otherwise the
marriage
is
VOID. (Moreno
v Bernabe)

3. Things to do at the local civil registrar:


a. File an application of marriage license at
the proper local civil registrar. (Art. 11,
FC)
b. Present birth or baptismal certificate.
(Art. 12, FC)
c. If aged 18-21 years, present parental
consent. (Art. 14, FC)
d. If aged 21-25, present parental advice.
(Art. 15, FC)
e. If aged 18-25, present certificate of
marriage counseling from your priest.
(PD 965)
f. Pay the required fees. (Art 19, FC)
g. If foreigner, present certificate of legal
capacity issued by diplomat or consular
officials. (Art. 21, FC)
Marriage Ceremony
1. No prescribed form or religious rite for the
solemnization of marriage is required. (Art.
6, FC
The couple's written agreement where
they declare themselves as husband
and wife, signed by them before a judge
and two capable witnesses, even though
it was independently made by them, still
counts as a valid ceremony. (Martinez v
Tan, 12 Phil 731)
2. Minimum requirements prescribed by law:
(AP-PMS)

a. Appearance of contracting parties


personally before the solemnizing officer
(Art 3 FC)
b. Personal declaration that they take each
other as husband and wife. (Art 3 FC)
c. Presence of at least two witnesses of
legal age. (Art 3 FC)
d. The declaration shall be contained in the
Marriage certificate. (Art 6 FC)
e. Marriage certificate shall be Signed by
the contracting parties and their
witnesses and
attested by the
solemnizing officer. (Art. 6, FC)
Note: In a marriage in articulo mortis, when
one or both parties are unable to sign
the marriage certificate, it shall be
sufficient for one of the witnesses to
write the name of said party, which shall
be attested by the solemnizing officer.
(Art 6, par. 2)
3. Places where marriage SHALL be
solemnized: (CCO)
a. Chambers of Judge or an open court
b. Church, Chapel or Temple
c. Office of the consul general, consul or
vice consul (Art. 8, FC)
Exception:
a. Marriages in articulo mortis
b. Marriages in remote places
c. Written request from both parties.

III. Marriages Solemnized Abroad


General Rule
Marriages solemnized abroad in accordance
with the laws in force in that country shall be
valid in the Philippines. (Art 26 FC)
Exceptions
1. Marriage between persons below 18 years
old Art. 35(1)
2. Bigamous or polygamous marriage Art.
35(4)
3. Mistake in identity Art. 35 (5)
4. Marriages void under Article 53 Art. 35 (6)
5. Psychological incapacity Art. 36
6. Incestuous marriages Art. 37
7. Marriage void for reasons of public policy
Art. 38

IV. Presumption of Marriage


1. Presumption in favor of a valid marriage (
Art 220 CC)

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2. The presumption that a man and a woman


deporting themselves as husband and wife
have entered into a lawful contract of
marriage is satisfactory if uncontradicted.
(Sec. 3 (aa), Rule 131, ROC)
3. In marriages of exceptional character, the
existence of the marriage is presumed, even
in the TOTAL ABSENCE of a marriage
license. (Vda. De Jacob v CA, 1999)
4. if a marriage certificate is missing, and all
means
HAVE
NOT
YET
BEEN
EXHAUSTED to find it, then the marriage is
presumed to exist (Sevilla v Cardenas,
2006)
5. Absence of a marriage certificate is not
proof of absence of marriage. To prove the
fact of marriage, the following would
constitute competent evidence: (1) the
testimony of witnesses to matrimony; (2) the
couples public cohabitation; and (3) birth
and baptismal certificates of children born
during the union. (Trinidad v CA, 1998)

Chapter III. MARRIAGE

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Chapter IV. VOID MARRIAGES

clinically identified, (b) alleged in the


complaint, (c) sufficiently proven by
the experts, (d) clearly explained in
the decision.

Chapter IV. Void Marriages


I.
II.

GROUNDS
PERIOD TO FILE ACTION
DEFENSE
III. EFFECTS OF NULLITY

I.

OR

RAISE

Note: The new Supreme Court Rule on


Declaration of absolute nullity of Void
Marriages and annulment of Voidable
Marriages (A.M. No. 02-11-10-SC,
effective March 15, 2003 and Barcelona
vs. CA (2003) provide that expert
opinion is not a condition sine qua non
for proof of psychological incapacity.
The root cause may be proven by the
totality of evidence in actual trial.

Grounds

Art. 4(1): The absence of any essential or


formal requisites shall render the marriage void
ab initio, except as stated in Article 35 (a).
VOID AB INITIO MARRIAGES:

A. Article 35 (Void from the Beginning)


1. Contracted by any party below eighteen
years of age even with the consent of
parents or guardians
2. Solemnized by any person not legally
authorized to perform marriages unless
such marriages were contracted with either
or both parties believing in good faith that
the solemnizing officer had the legal
authority to do so.
Note: Ones belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of law.
3. Solemnized without license, except in
marriages under exceptional circumstances
4. Bigamous or polygamous marriages not
falling under Article 41 (Art. 41: subsequent
marriage by present spouse who obtained a
declaration of presumptive death for absent
spouse prior to the subsequent marriage)
5. There is a mistake as to the identity of the
other contracting party
6. Subsequent marriages that are void
under Article 53 (Art 53: a subsequent
marriage is null and void if prior to its
celebration, it has not recorded in the civil
registry and registries of property the items
in Art. 52)

B. Article 36 (Psychological Incapacity)

Contracted by any party who, at the time of


the celebration, was psychologically
incapacitated to comply with the essential
marital obligations of marriage, even if such
incapacity becomes manifest only after its
solemnization
Republic v. Molina, (1997)
a. The burden of proof to show the nullity
of the marriage belongs to the plaintiff.
b. The root cause of the psychological
incapacity must be: (a) medically or

c.

The incapacity must be proven to be


existing at the time of the
celebration of the marriage.
d. Such incapacity must also be shown to
be medically or clinically permanent
or incurable.
e. Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage.
f. The essential marital obligations must
be those embraced by Articles 68 up to
71 of the Family Code as regards the
husband and wife as well as Articles
220, 221, and 225 of the same Code in
regard to parents and their children.
g. Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines,
while not controlling or decisive, should
be given great respect by our courts.
h. The trial court must order the
prosecuting attorney or fiscal and the
Solicitor General to appear as
counsel for the state. No decision shall
be handed down unless the Solicitor
General issues a certification.
Note: The new Supreme Court Rule on
Declaration of absolute nullity of Void
Marriages and annulment of Voidable
Marriages (A.M. No. 02-11-10-SC, effective
March 15, 2003 provide that the appearance
of the prosecuting attorney or fiscal and the
Solicitor-General is no longer mandatory.

Santos v. Bedia-Santos, (1995):


Laid down 3 characteristics for determining
psychological
incapacity:
gravity,
antecedent, and incurability.
Tsoi v. CA, (1997)
Refusal of husband to have sex was
interpreted to be PI. A man who can but
wont is PI

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Marcos vs. Marcos (2000)


Psychological incapacity maybe established
by the totality of the evidence presented.
Personal medical examination could be
dispensed with.
Republic vs. San Jose (2007)
There is no requirement that the respondent
be medically examined first.
Antonio v. Reyes, (2006):
pathological liar, Molina guidelines met.

C. Article 37 (Incestuous)
1. Between ascendants and descendants of
any degree, legitimate or illegitimate
2. Between brothers and sisters, whether of
the full or half blood, legitimate or illegitimate

D. Article 38 (Against Public Policy)


1. Between
collateral
blood
relatives,
legitimate or illegitimate, up to the fourth civil
degree.
2. Between step-parents and step-children.
Note: Stepbrothers and stepsisters can
marry because marriages between them are
not among those enumerated in article 38.
3. Between parents-in-law and children-inlaw.
4. Between adopting parent and adopted
child.
5. Between the surviving spouse of the
adopting parent and the adopted child.
6. Between the surviving spouse of the
adopted child and the adopter.
7. Between an adopted child and a
legitimate child of the adopter.
8. Between adopted children of the same
adopter.
9. Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-in-law
with sister-in-law, stepbrother with stepsister,
guardian with ward, adopted with illegitimate
child of the adopter, adopted son of the husband
with adopted daughter of the wife, parties who
have been convicted of adultery.

Chapter IV. VOID MARRIAGES

E. Article 41 (Bigamous Marriages,


Absentee Spouse and Presumptive
Death)
General Rule
Marriage contracted by any person during
the subsistence of a previous marriage is
void.
Exceptions: The following subsequent marriage
of the present spouse is valid:
1. Subsequent marriage due to ordinary
absence where:
a. the prior spouse had been absent for 4
consecutive years;
b. the spouse present had a well-founded
belief that absent spouse is dead; and
c. judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the absent
spouse).
2. Subsequent marriage due to extraordinary
absence where:
a. the prior spouse had been missing for 2
consecutive years;
b. there is danger of death attendant to
the disappearance;
c. the spouse present had a well-founded
belief that the missing person is dead;
and
d. judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the absent
spouse).
Note:
Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (BALANE)
Only the deserted spouse can file or institute
an action a summary proceeding for the
declaration of presumptive death of the
absentee (Bienvenido case)
There must have been diligent efforts on the
part of the deserted spouse to locate the
absent spouse. These diligent efforts
correspond to the requirement of the law for
a well-founded belief.
Exception to the exception
When both parties to the subsequent acted in
bad faith (Art. 44)
Connected Provisions
Art. 390, Civil Code. After an absence of 7 years, it
being unknown whether or not the absentee still lives,
he shall be presumed dead for all purposes, except
for those of succession.
The absentee shall not be presumed dead for the

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Chapter IV. VOID MARRIAGES

purpose of opening his succession till after an


absence of 10 years. If he disappeared after the age
of 75 years, an absence of 5 years shall be sufficient
in order that his succession may be opened.
Art. 391, Civil Code. The following shall be presumed
dead for all purposes, including the division of the
estate among the heirs: (SAAD)
1. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
2. A person in the armed forces who has taken part
in war, and has been missing for four years;
3. A person who has been in danger of death
under other circumstances and his existence has
not been known for four years.

Note:
Although seven years is required for the
presumption of death of an absentee in the
Civil Code, Art. 41 of the Family Code
makes an exception for the purpose of
remarriage by limiting such requirement to
four years.
Art. 41 also limits the required four years in
Art. 391 for absence under exceptional
circumstances to only two years.

F. Article 44 (Present spouse


contracts marriage in bad faith)

Atienza v. Brillantes, (243 SCRA 32)


A judges first marriage contracted in 1965
was void for not having a marriage license,
but the requirement for a judicial declaration
of nullity in Art. 40 applies for his
subsequent marriage contracted in 1991.

Apiag v. Cantero, (1997)


Where both marriages were contracted prior
to the effectivity of the FC, the requirement
of Art. 40 does not apply to the second
marriage where a right is already vested and
which the FC cannot have retroactive effect.

Judicial declaration of nullity of a marriage is


now an absolute requirement:
a. For the validity of any subsequent
marriage
b. For the subsequent marriage not to be
considered as bigamous

Domingo v. CA, (1993)


The judicial declaration of nullity can be
invoked for purposes other than remarriage.
Article 40 was interpreted as being a
requirement for purposes of remarriage but
not limited for that purpose. Separation of
property is also a valid purpose for filing for
a judicial declaration of nullity.

Borja-Manzano v. Sanchez, (2001)


Legal separation does not severe marital
bonds. Cohabitation under Art. 34 merely
exempts the spouses from obtaining a
marriage license, and is not met when there
exists legal impediment to marry during the
period of cohabitation.

who

Both spouses of a subsequent marriage


acted in bad faith in case where a previous
spouse was an absentee

G. Article 53 (Non-Recording)
Subsequent marriage of spouses where the
requirements of recording under Art. 52 for
void marriages shall not have been complied
with

H. Article 40
Nullity)

(Judicial

Terre v. Terre, (1998)


A lawyer was disbarred for grossly immoral
conduct by convincing the other party that a
judicial declaration of nullity was not
required and subsequently contracting
another marriage while his first marriage
was subsisting.

Declaration

of

Art. 40, Civil Code. The absolute nullity of a previous


marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring
such previous marriage void.

Under the Civil Code (superseded by the Family


Code), there was no need for a judicial
declaration of nullity of a previous marriage for a
subsequent marriage to be valid (People v.
Mendoza). However, Article 40 of the FC now
requires a final judgment to declare a
previous marriage void for a subsequent
marriage to be valid. (Terre v. Terre, Atienza v.
Brillantes)

II. Period to
Defense

File

Action

or

Raise

Art. 39. The action or defense for the declaration


of absolute nullity of a marriage shall not
prescribe. (as amended by R.A. 8533)

The phrase "However, in case of marriage


celebrated before the effectivity of this Code
and falling under Article 36, such action or
defense shall prescribe in ten years after

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CIVIL LAW REVIEWER

this Code shall taken effect" has been


deleted by Republic Act No. 8533 [Approved
February 23, 1998]).
It must be noted that under the new
Supreme Court Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No.
02-11-10-SC, effective March 15, 2003,
nullity of the marriage can still be collaterally
attacked.
As to the parties allowed to file the action
Enrico v. Heirs of Sps. Medinaceli (2007):
Only an aggrieved or injured spouse may file
a petition for annulment of voidable
marriages or declaration of absolute nullity
of void marriages. Such petition cannot be
filed by compulsory or intestate heirs of the
spouses or by the State. The Committee is
of the belief that they do not have a legal
right to file the petition. Compulsory or
intestate heirs have only inchoate rights
prior to the death of their predecessor, and,
hence, can only question the validity of the
marriage of the spouses upon the death of a
spouse in a proceeding for the settlement of
the estate of the deceased spouse filed in
the regular courts. (also reiterated in Carlos
vs. Sandoval, 2008)

III. Effects of Nullity


Effects of Termination of Bigamous Marriage
(Art. 43 and 44)
1. Children conceived prior to its termination
considered legitimate
2. Property Regime dissolved and liquidated
(party in bad faith shall forfeit his/her share
in favor of the common children or if there
are none, children of the guilty spouse by a
previous marriage, and in case there are
none, to the innocent spouse)
3. Donation propter nuptias remains valid,
(but if the donee contracted marriage in bad
faith, donations will be revoked)
4. Insurance benefits innocent spouse may
revoke designation of guilty party as
beneficiary, even if such designation is
stipulated as irrevocable
5. Succession Rights Party in bad faith
disqualified to inherit from innocent spouse,
whether testate or intestate
6. Donations - If both parties of subsequent
marriage acted in bad faith, any donations
and testamentary dispositions made by one
party to the other by reason of marriage will
be revoked (Art. 44)

Chapter IV. VOID MARRIAGES

Effects of Other Void Marriages


1. The effects provided for by paragraphs (2),
(3), (4) and (5) of Article 43 and by Article
44 shall also apply in the proper cases to
marriages which are declared ab initio or
annulled by final judgment under Articles 40
and 45 [Art. 50(1)]
2. Final judgment in such cases shall provide
for the liquidation, partition, and
distribution of the:
a. properties of the spouses
b. custody and support of the common
children
c. delivery of their presumptive legitimes
unless such matters had been
adjudicated
in
previous
judicial
proceedings [Art. 50(2)]
all creditors (of the spouses/property
regime) shall be notified of the
proceedings for liquidation [Art. 50(2 and
3)]
3. In the partition, the conjugal dwelling and
lot shall be adjudicated to the spouse with
whom majority of the common children
remain (Art. 102 and 129) [Art. 50(4)]
4. Presumptive legitimes, computed as of the
date of the final judgment, shall be
delivered in cash, property or sound
securities
a. unless the parties, by mutual agreement
judicially
approved,
had
already
provided for such [Art. 51(1)]
b. the children/guardian/trustee may ask
for the enforcement of the judgment [Art.
51(2)]
c. the delivery of the presumptive legitimes
shall not prejudice the ultimate
successional rights, but the value of the
properties already received shall be
considered as advances on their
legitime [Art. 51(3)]
5. Either of the former spouses may marry
again AFTER compliance with the
requirements of Article 52, otherwise, the
subsequent marriage is void (Art. 53)
Requirement (Art. 52) recording in the
appropriate civil registry AND registries
of property:
a. judgment of annulment/absolute nullity
of marriage
b. partition and distribution of the
properties of the spouses
c. delivery of the childrens presumptive
legitimes
otherwise, these shall not affect third
persons

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6. Generally, children born or conceived within


void marriages are illegitimate.
Exception:
children conceived or born before
the judgment under Article 36 has
become final and executory
children conceived or born of
subsequent marriages under Article
53
Nial v. Badayog, (2000)
Children of first marriage assailed the
validity of the second marriage
contracted by their father without a
marriage license and after the latters
death.
Void marriages can be attacked
collaterally and do not prescribe

De Castro v. Assidao-de Castro, (2008)


Validity of marriage was attacked
collaterally in an action for support for
determining legitimacy of the child.

Chapter IV. VOID MARRIAGES

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Chapter V. VOIDABLE MARRIAGES

consummating
the
marriage
(impotence; this is different from
sterility).

Chapter V. Voidable Marriages


(asked in 75, 76, 78, 83, 86, 90, 91, 93, 94,
95, 96, 97, 02, 03, 04, 07, and 09 bar
exams)
GROUNDS FOR ANNULMENT
A. EXPLANATION
B. WHO
MAY
FILE,
PRESCRIPTION,
RATIFICATION
C. MARRIAGES
NOT
SUBJECT
TO
RATIFICATION
II. WHEN ONE SPOUSE IS ABSENT
A. REQUIREMENTS FOR SUBSEQUENT
MARRIAGE TO BE VALID WHEN PRIOR
SPOUSE IS ABSENT
B. EFFECT
OF
REAPPEARANCE
OF
ABSENT SPOUSE
III. EFFECTS OF PENDING ACTION/DECREE
IV. VOIDABLE VS. VOID
V. VOIDABLE VS. LEGAL SEPARATION
VI. JURISDICTION

6. Either party has a serious and


incurable
sexually-transmissible
disease, even if not concealed.*

I.

I.

Grounds for Annulment (Art. 45, FC)

Marriage may be annulled on the ff grounds


existing at time of marriage: P I F F I S
P

1. One of the parties is 18 or above but


below 21, and there is no parental
consent.

2. Either party was of unsound mind


(insanity).

3. The consent of either party was


obtained through fraud (different from
mistake in identity):
a. through non-disclosure of a
previous conviction of a crime
involving moral turpitude;
b. through concealment by the wife
of the fact at the time of the
marriage that she was pregnant
by another man;
c. through
concealment
of
a
sexually-transmitted
disease,
regardless of its nature, existing
at the time of marriage;
d. through concealment of drug
addiction, habitual alcoholism or
homosexuality/lesbianism.
(Art.46, FC)

4. The consent of either party was


obtained through force, intimidation,
or undue influence.

5. Either party is physically incapable of

TOLENTINO
Action to Annul: action in rem, concerns status
of parties; res is relation bet parties or marriage
tie; jurisdiction depends on nationality or
domicile not the place of celebration

A. Grounds for Annulment explained:


1. Lack of parental consent
a. 18<=x<21 w/o parental consent
b. Ratified upon free cohabitation upon
reaching 21.
c. TOLENTINO: parents whose consents
were wanting may ratify before 21; this
right can be waived; however, the Code
Commission believes that no such
ratification can be made by the parent.
2. Insanity
a. mental incapacity or insanity is a vice of
consent; insanity (1) of varying degrees,
(2) curable being an illness, capable of
ratification or convalidation, (3) has lucid
intervals, (4) ground only for annulment
in many countries
b. can be ratified by cohabitation after
insane is cured
c. mere mental weakness is not a ground
for annulment, but if found grave enough
may amount to psychological incapacity.
d. intoxication, somnambulism where one
had no mental capacity to give consent
is equivalent to insanity
e. must EXIST AT THE TIME of the
celebration of the marriage.
f. law presumes SANITY, burden of proof
on party alleging insanity
3. Fraud
a. only those enumerated in Art. 46 FC
non-disclosure
of
previous
CONVICTION by final judgment of a
crime
involving
MORAL
TURPITUDE
concealment by wife at the time of
marriage, that she was pregnant by
another man
concealment of STD regardless of
nature existing at time of marriage
concealment of drug addiction,
habitual alcoholism, homosexuality,
lesbianism existing at time of
marriage

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CIVIL LAW REVIEWER

b. No other misrepresentation or deceit of


CHARACTER,
HEALTH,
RANK,
FORTUNE
OR
CHASTITY
shall
constitute FRAUD
c. TOLENTINO: fraud must relate to fact
material to the marital relation;
PRINCIPLE OF ENUMERATION; no
other cases of fraud can be ground for
annulment; INCLUSIO UNIUS EST
EXCLUSIO ALTERIUS
d. Conviction of Crime: requisites are
moral turpitude
conviction
e. Concealment of Pregnancy
fraud against very essence of
marriage; importance of procreation
of children; an assault to the
integrity of the union by introducing
ALIEN BLOOD
If husband knew of pregnancy, the
marriage cannot be annulled on the
ground of concealment. Three (3)
months after the celebration of the
marriage, a baby was born.
Annulment was refused because of
advanced stage of pregnancy,
which must be patent to the
husband (Buccat v Mangonon)
If there was coitus before marriage
& wife was pregnant at time of
marriage although he may not be
the father, marriage cannot be
annulled because man knows wife
is unchaste. Principle: one cannot
go to court with unclean hands.
Prof. Balane: An isolated case and
is not doctrinal.
f. Marriage cannot be annulled on ground
that wife concealed the fact that she had
been lewd & corrupt and had illegitimate
child (Shrady v Logan)
g. Maybe ratified upon cohabitation after
knowledge of fraud

Buccat v Buccat, 72 Phil. 19


Wife gave birth 3 months after marriage
celebration.
Husband
filed
for
annulment. Ground: concealment of
non-virginity. Court held that it was
unbelievable that wife could have
concealed 6 months of pregnancy.

Aquino v Delizo, 109 Phil. 21


The Supreme Court granted annulment
because the wife concealed the fact that
she was 4 months pregnant during the
time of the marriage. It argued that since
Delizo was naturally plump, Aquino
could hardly be expected to know, by

Chapter V. VOIDABLE MARRIAGES

mere looking, whether or not she was


pregnant at the time of the marriage.

Almelor v. RTC, (2008)


It is the concealment of homosexuality,
and not homosexuality per se, that
vitiates the consent of the innocent
party. Such concealment presupposes
bad faith and intent to defraud the other
party in giving consent to the marriage.

Corpuz v. Ochoterena, (2004)


In a legal separation or annulment case,
the prosecuting attorney must first rule
out collusion as a condition sine qua non
for further proceedings. A certification
by the prosecutor that he was present
during the hearing and even crossexamined the plaintiff does not suffice to
comply with the mandatory requirement.

STD: Art. 45 vs. Art. 46

Art. 45 STD
Ground for annulment

Does not have to be


concealed
Must be serious and
incurable
The STD itself is the
ground for annulment

Art. 46 STD
The STD is a type of fraud
which is a ground for
annulment
Must be concealed
Need not be serious nor
incurable
It is the concealment that
gives rise to the annulment

Effect of Cure to Fraud in Art. 46:


Recovery or rehabilitation from STD,
drug addiction, and habitual alcoholism
will NOT BAR ACTION for annulment;
defect: not the disease, but the FRAUD
which VITIATED CONSENT

4. Force, intimidation, undue influence


a. FORCE must be one as to prevent party
from acting as a free agent; will
destroyed by fear/compulsion
b. INTIMIDATION must be one as to
compel the party by reasonable/wellgrounded fear/evil imminent upon
person/properties
c. DEGREE OF INTIMIDATION: age, sex,
condition of person borne in mind
d. A threat to enforce claim thru competent
authority, lawful or not, does not vitiate
consent
e. VIOLENCE or INTIMIDATION annul
obligation even if by third person (Art.
1336, CC)
f. UNDUE INFLUENCE when improper
advantage of his power over the will of

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CIVIL LAW REVIEWER

another, depriving freedom of choice.


(Art. 1337, CC)
EXAMPLE: confidentiality, family
relations, suffering from mental
weakness, in financial distress
g. Threat to FILE A CASE OF immorality
on bar candidate where he does not
marry a girl who he has impregnated
does not vitiate consent (Ruiz v Atienza)
h. Threat or intimidation as no to act as
FREE AGENT; threatened of armed
demonstrations
by
brother
is
ANNULLABLE (Tiongco v Matig-a)
i. Man rapes a girl, marries her & has no
intention to live with the girl; marriage is
annullable (People v Santiago)
j. Committee added undue influence,
maybe compelled to enter out of
REVERENTIAL FEAR e.g., fear of
causing
distress
to
parents,
grandparents, etc
5. Impotency
a. should exist at the time of celebration
marriage
b. should continue to the time of trying
annulment case
c. should appear incurable
d. should be unknown to the other party
e. physical condition: sexual intercourse
with a person of the opposite sex is
impossible, not mere sterility
f. only potent spouse can file action
(principle: one cannot come to court with
unclean hands)
g. must exist at time of marriage, must be
continuous, must be incurable; thus if
removable
by
operation,
NOT
ANNULLABLE (Sarao v Guevarra, CA,
40 O.G. 155 Supp. 263)
h. both spouses impotent, marriage cannot
be annulled because neither spouse is
aggrieved
i. impotency due to old age, marriage
cannot be annulled
j. POTENCY PRESUMED; party who
alleges impotency has burden of proof
(Jimenez v Canizares)
k. Although potency is presumed, there is
a doctrine in England called TRIENNIAL
COHABITATION that if wife remains
virgin after 3 yrs, husband presumed
impotent & has burden to prove
otherwise (Tompkins v Tompkins)
l. REFUSAL of wife to be examined DOES
NOT PRESUME impotency because
Filipino women are inherently shy &
bashful; TC must order physical
examination because w/o proof of

Chapter V. VOIDABLE MARRIAGES

m.

n.

o.

p.

impotency, she is presumed potent; to


order her to undergo physical exam
does not infringe constitutional rights
against self-incriminating (Jimenez v
Canizares)
Villanueva vs. CA (2006): Absence of
cohabitation is not a ground for
annulment.
NOTE: if wife continues to refuse to
undergo physical exam, she can be held
for CONTEMPT & ordered to be
confined in jail until she does so
RELATIVE IMPOTENCY: may now be
invoked because there are cases where
one is impotent with respect to his
spouse but not with other men or
women.
EXAMPLE: penile erection to other
women possible; unusually large penis
can fit with abnormally large vagina

6. Sexually-transmissible disease serious and


incurable
a. should exist at the time of the marriage
b. should be found serious
c. should appear to be incurable
d. Should be unknown to other party
e. reason: danger to the health of spouse
& offspring/s
f. same as incurable impotency
g. Ratification or Convalidation of Voidable
Marriages:
by
cohabitation
or
prescription cannot be ratified or
convalidated:
prior subsisting marriage; would
result in anomalous relationship
vitiated by impotency remains as
long as afflicted
vitiated by affliction of STD remains
as long as afflicted
Affliction of STD is unknown to the
other spouse (BALANE)
The other spouse must also be free
from a similar STD. (BALANE)
h. 2 & 3 prescribe w/in 5 yrs by Art. 47(5)

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CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Chapter V. VOIDABLE MARRIAGES

B. Who may File, Prescription, Ratification


Who can file
(Art. 47)
1. Underage party
2. Parent or guardian
Insanity

1. Sane spouse with


no knowledge of the
others insanity
2. Legal guardian of
insane party
3. Insane party

Fraud

Injured
party
(defrauded party)

Force, intimidation, undue


influence

Injured party

Impotence

Healthy party

STD

Healthy party

C. Marriages
Not
Subject
Ratification/Convalidation

Prescription
(Art. 47)
1.
5
years
after
attaining 21.
2. Before child reaches
21.
1. Any time before the
death of either party

2. During lucid interval


or
after
regaining
sanity, and before
death
Five
years
after
discovery of fraud
Five
years
after
disappearance of force
or intimidation
Five
years
after
marriage
Five
years
after
marriage

Ratification
(Art. 45)
Free cohabitation after
attaining age of 21.

Free cohabitation of
insane
party
after
insane party comes to
reason

Free cohabitation after


having full knowledge
of fraud
Free cohabitation after
the force has ceased
or disappeared
Deemed ratified when
action prescribes
Deemed ratified when
action prescribes

to

B. Effect of Reappearance of Absent


Spouse:

1. One spouse is incurably impotent (Art. 47


prescription: 5 years)
2. One spouse has an incurable STD (Art. 47
prescription: 5 years)
3. Sane spouse marries an insane spouse w/o
knowledge of insanity
4. Prior subsisting marriage

General Rule
The subsequent marriage remains valid.
Exception
It is automatically terminated by the
recording of the affidavit of reappearance of
the absent spouse.
Exception to the Exception
If there is a judgment annulling the previous
marriage or declaring it void ab initio. (Art.
42, FC)

II. Marriage When One Spouse Absent


A. Requirements for Subsequent Marriage
to be Valid When Prior Spouse is
Absent (Art. 41, FC):
1. The prior spouse had been absent for 4
consecutive years, or 2 years in cases
under Art. 391 CC.
2. The spouse present has a well-founded
belief that the absent spouse was already
dead.
3. The spouse present must institute a
summary proceeding for the declaration
of presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
__________

TOLENTINO
Status of Subsequent Marriage: generally
considered bigamous & void EXCEPT par. 2 of
this article; good faith w/o falling under par. 2 will
render marriage VOID
When Voidable: must act in GOOD FAITH and
1. absent spouse not heard from 7 consecutive
yrs
2. although absent for less than 7 yrs,
generally considered dead
3. presumed to be dead after 4 yrs when
occurrence of death in A391
Judicial Declaration Unnecessary: purpose of
validity of marriage, missing spouse need not be
judicially declared an absentee, enough required

21
PERSONS AND FAMILY RELATIONS

Ground
(Art. 45)
Lack of parental consent

period elapsed from time the absentee was last


heard not from judicial declaration. After 7
years, presumptive death arises w/o need for
judicial declaration
Prior Voidable Marriage: UNLESS final
judgment or dissolved by death, subsequent
marriage NULL & VOID
Status of Subs Marriage: during subsisting
marriage, remarriage is BIGAMOUS & VOID.
EXCEPT:
1. absentee four years or for two under special
circumstances
2. absence gives rise to presumption of death
w/c is required to be declared in SUMMARY
PROCEEDING to enable to remarry
Period of Absence:
1. GENERALLY, under CC, 7 years required
for declaration of presumptive death For
REMARRIAGE, reduced to 4 years by FC
2. EXCEPT in cases, CC 4 years & FC 2 years
IF
a. ON BOARD VESSEL lost at sea
voyage, airplane
b. ARMED FORCES in war
c. DANGER OF DEATH under other
circumstances, existence not known
Good Faith: PERIOD of absence for
PRESUMPTIVE DEATH is MANDATORY thus
cannot be shortened by good faith and if be
done so will be VOID
Burden of Proof: two successive marriages,
nd
presumption on validity of 2 marriage and
ND
burden on party ATTACKING VALIDITY OF 2
MARR.
PRESUMPTION in favor of
INNOCENCE prevails over PRESUMPTION of
ST
CONTINUANCE OF LIFE OF 1 SPOUSE &
MARITAL RELATIONS.
Meaning of Absent spouse
1. Absent for 4 years having well-founded
belief of death
2. period of 4 years reduced to 2 years in
danger of death in A391 CC where:
a. on board vessel lost at sea or airplane
(includes all kinds of watercraft &
aircraft)
b. armed forces in war
(all military operations involving armed
fighting; does not apply to nurses,
doctors, reporters or cameramen)
c. danger of death

(includes
earthquakes,
fires,
explosions,
dangerous

Chapter V. VOIDABLE MARRIAGES

expeditions, landslides, volcanic


eruptions)
3. 2-year period counted from event of death
presumed
4. Republic v. Bermudez-Lorino, (2005)
The RTC rendered a decision declaring the
presumptive death of respondents absent
spouse based on Art. 41, FC. The Republic
appealed the decision to the CA. Applying
Art. 247 FC, the SC ruled that the CA did not
have jurisdiction over the appeal because
summary proceedings are immediately final
and executory, and therefore unappealable.
Difference between Absence in the Civil
Code and Family Code
Family Code
As to
period

4 years under
normal
circumstances; 2
years under special
circumstances

Civil Code
Absent for at least 7
years; 4 years
under special
circumstances

As to
In order to remarry, Declaration of
remarriage summary
presumptive death
proceeding is
is not necessary
necessary
As to who
can
institute
the action

Can be instituted by The spouses


the present spouse, themselves
any interested
party, and the
subsequent spouse

As to
Subsequent
effect on marriage is
subsequen automatically
t marriage terminated by the
recording of an
affidavit of
reappearance of the
absent spouse
As to
ground

Upon
reappearance,
judicial proceeding
is necessary to
declare marriage
null and void

Well founded belief Generally believed


that the absent
to be dead
spouse is dead

III. Effects of Pending


(Art. 49, FC)

Actions/Decree

1. The court shall provide for the support of


the spouses,
2. The custody and support of the common
children, giving paramount consideration to
their moral and material welfare, their choice
of parent with whom they wish to remain.
3. The court shall also provide for visitation
rights of other parent.

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CIVIL LAW REVIEWER

Chapter V. VOIDABLE MARRIAGES

Art. 363 (CC): No child under 7 years shall be


separated from the mother unless there is a
compelling reason to do so.

Art. 48 (FC): To prevent collusion between the


parties, fabrication or suppression of evidence,
the prosecuting attorney or fiscal shall appear on
behalf of the State.

IV. Voidable v. Void Marriage

Nature
Convalidation
Effect on property

Legitimacy of children

Voidable Marriage
VALID until annulled by court
CAN be convalidated by
prescription or free cohabitation
ACP exists unless another
system is instituted through
marriage settlement
Children are LEGITIMATE if
conceived before decree of
annulment

How to impugn

Can
only
be
DIRECTLY (there
Annulment Decree)

Effect of death of parties

Can no longer be impugned


after death of parties

V. Voidable v. Legal Separation


Voidable Marriage
ground for annulment
at the time of marriage
terminates
marital
bond
once final, cannot be
set aside to restore
marital relation

Legal Separation
causes
after
the
celebration of marriage
does not terminate
marital bond
marital relations can
resume
upon
reconciliation

VI. Jurisdiction
Tamano v. Ortiz, (1998)
PD No. 1083 (Code of Muslim Personal
Laws of the Philippines) does not provide for
a situation where the parties were married
both in civil and Muslim rites. Consequently,
the shari'a courts are not vested with original
and exclusive jurisdiction when it comes to
marriages celebrated under both civil and
Muslim laws. Hence, the Regional Trial
Courts have jurisdiction over such cases.

attacked
must be

Void Marriage
INEXISTENT from the beginning
CANNOT be convalidated
No Community Property, only Coownership
General
rule:
Children
are
ILLEGITIMATE (Art. 165, FC)
Exception: In void marriages by
reason of psychological incapacity
(Art. 36) or non-partition of
properties in a previous marriage
(Art. 53), children are considered
LEGITIMATE
May be attacked DIRECTLY or
COLLATERALLY,
except
for
purpose of remarriage (there must
be Judicial Declaration of Nullity)
May still be impugned after death of
parties

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CIVIL LAW REVIEWER

Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION

Chapter VI. Legal Separation, Divorce


and De Facto Separation
I. GROUNDS FOR LEGAL SEPARATION
II. DEFENSES
III. WHEN TO FILE/TRY ACTIONS
A. PRESCRIPTION
B. RECONCILIATION PERIOD
C. ATTEMPTS ON RECONCILIATION
D. CONFESSION
E. COLLUSION
IV. EFFECTS OF FILING PETITION FOR LEGAL
SEPARATION
V. EFFECTS OF DECREE FOR LEGAL
SEPARATION
VI. RECONCILIATION
A. HOW DONE
B. EFFECTS OF RECONCILIATION
VII. DIVORCE
VIII. DE FACTO SEPARATION

I.

Grounds for Legal Separation

(asked in 75, 76, 79, 80, 82, 89, 94, 96, 97,
02, 03, 06, and 07 bar exams)
(Art. 55, FC) [V A P I D H B I L A]
Note: The grounds for legal separation are
exclusive.
V

1. Repeated physical violence or


grossly abusive conduct directed
against petitioner, a common child, or a
child of the petitioner.

2. Physical violence or moral pressure


to compel petitioner to change religious
or political affiliation.

3. Attempt of respondent to corrupt or


induce petitioner, a common child, or
child of petitioner, to engage in
prostitution or connivance in such
corruption or inducement.

4.
Final
judgment
sentencing
respondent to imprisonment of more
than 6 years, even if pardoned
(executive pardon, not pardon from
offended party).

5. Drug addiction or habitual alcoholism


of respondent.
a. When it existed from the time of
celebration, and concealed from
petitioner, can be a ground for
annulment of marriage.
b. When it occurred only after the
marriage, it is only a ground for

c.

legal
separation,
whether
concealed or not.
Drug
addiction
or
habitual
alcoholism may be supervening.

6. Lesbianism or homosexuality of
respondent.
Same as rules on drug addiction

7. Contracting by respondent of a
subsequent
bigamous
marriage,
whether in the Philippines of abroad.

8. Sexual infidelity or perversion.


a. No conviction is required.

9. Attempt on the life of petitioner by


respondent.
a. There is no need for criminal
conviction. Only a preponderance
of evidence is required.

10. Abandonment of petitioner by


respondent without justifiable cause for
more than one year.

People v. Zapata and Bondoc, 88 Phil 688


(1951)
Adultery is not a continuing crime, but is
consummated and exhausted at the moment
of carnal union. As such, every sexual act is
a ground for legal separation.

Gandioco v Pearanda, 155 SCRA 725


(1989)
In sexual infidelity as a ground for legal
separation, there is no need for prior
conviction for concubinage, because legal
separation only requires a preponderance of
evidence, as opposed to proof beyond
reasonable doubt required in concubinage.

Lapuz Sy v. Eufemio, 43 SCRA 177


(1972)
The death of one party in a legal separation
case abates the action. This is because the
death of either spouse automatically
dissolves the marriage. An action for legal
separation is also purely personal between
the spouses.

Dela Cruz. v. Dela Cruz 22 SCRA 333


Abandonment is not mere physical
estrangement but also financial and moral
desertion.
There must be an absolute
cessation of marital relations, duties, and
rights with the intention of perpetual
separation.

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CIVIL LAW REVIEWER

Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION

II. Defenses
Grounds for denying legal separation (Art.
56, FC) [4CMPRD]
1. Condonation by aggrieved party
2. Consent by aggrieved party to the
commission of the offense
3. Connivance between parties in the
commission of the offense
4. Mutual guilt or Recrimination between
spouses in the commission of any ground
for legal separation
5. Collusion between parties to obtain decree
of legal separation
6. Prescription of action for legal separation
(Art. 57: 5 years from occurrence of the
cause of action)
7. Reconciliation of parties during pendency
of action (Art. 66 par.1)
8. Death of either party during pendency of
action (Lapuz-Sy v Eufemio, supra)

Bugayong v. Ginez, 100 Phil. 616 (1956)


Continued
cohabitation
despite
full
knowledge of the spouses infidelity
constitutes implied condonation.

III. When to File/Try Actions


A. Prescription
Action prescribes after five years from the
occurrence of the cause (Art. 57, FC)

B. Reconciliation Period
Action cannot be tried before six months have
elapsed from the filing of the petition (Art. 58.
FC)
Note: without prejudice to judicial determination
of custody of children, alimony, and support
pendente lite

C. Attempts on Reconciliation
Action cannot be tried unless the court has
attempted to reconcile the spouses, and
determined
that
despite
such
efforts,
reconciliation is highly improbable (Art. 59, FC)

D. Confession
No decree of legal separation shall be based
upon a stipulation of facts or a confession of
judgment (Art. 60, par. 1. FC)

Note: Art. 60 par. 1 applies only if the judgment


was based solely on the stipulation of facts.
Thus, if other grounds were used, Art. 60
par. 1 is not applicable. (BALANE)

E. Collusion
The court shall assign the prosecuting attorney
or fiscal to make sure that there is no collusion
between the parties, and that evidence is not
fabricated or suppressed (Art. 60, par. 2, FC)

IV. Effects of Filing Petition for Legal


Separation (LAC)
1. The spouses are entitled to Live separately,
but the marital bond shall not be severed.
(Art. 61, par. 1. FC).
2. Administration of Community or Conjugal
Property If there is no written agreement
between the parties, the court shall
designate one of them or a third person to
administer the ACP or CPG. (Art. 61, par. 2,
FC)
3. Custody of children The court shall give
custody of children to one of them, if there is
no written agreement between the spouses.
It shall also provide for visitation rights of the
other spouse. (Art. 62, cf. Art. 49. FC)

V. Effects
of
Decree
Separation (LACIDIMS)

for

Legal

1. The spouses can Live separately (Art. 63.


FC)
2. The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty
spouse shall be forfeited in favor the
common children, previous children, or
innocent spouse, in that order (Art. 63. cf.
Art. 43, par. 2).
3. Custody of the minor children shall be
awarded to the innocent spouse (Art. 63.
FC, cf. Art 213)
4. Guilty spouse shall be disqualified from
Inheriting from innocent spouse by intestate
succession. The provisions in favor of the
guilty party in the will of the innocent spouse
shall also be revoked by operation of law.
(Art. 63, FC)
5. Donations in favor of the guilty spouse may
be revoked (Art. 64. FC)
6. Innocent
spouse
may
also
revoke
designation of guilty spouse as beneficiary

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Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION

in an Insurance policy, even if such


stipulations are irrevocable (Art. 64. FC, cf.
PD 612, sec. 11).
7. Obligation for Mutual support ceases, but
the court may order the guilty spouse to
support the innocent spouse. (Art. 198, FC)
8. The wife shall continue to use the Surname
of the husband even after the decree for
legal separation. (Art. 372, CC)

VI. Reconciliation

Art. 26(2), Civil Code. Where a marriage between a


Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry
under Philippines law.

Valid Foreign Divorce


a. valid marriage between a Filipino
citizen and a foreigner
b. divorce is validly obtained by the alien
spouse
c. alien spouse becomes capacitated to
remarry
Result: the Filipino spouse shall likewise
have the capacity to remarry under
Philippine law

Van Dorn v. Romillo, 139 SCRA 139 (1985)


Before the effectivity of the FC, the SC
applied Article 15 of the CC, from the
foreigners perspective, to decree the validity
of a divorce with respect to the Filipino
spouse to prevent the unjust result to the
Filipino spouse as the alien spouse is
already capacitated to remarry.

Quita v. Dandan, 300 SCRA 406 (1998)


The time of obtaining foreign citizenship is
necessary to determine the validity of
divorce obtained by the spouse who applied
for foreign citizenship.
It must be
ascertained that when that spouse obtained
the divorce, he/she was no longer bound by
Philippine domestic law

Llorente v. CA, 345 SCRA 592 (2000)


nd
A 2 marriage obtained by a Filipino who is
already a US citizen at the time of the
nd
divorce and the remarriage makes the 2
marriage completely valid.

Garcia v. Recio, 366 SCRA 437 (2001)


Philippine courts do not take cognizance of
foreign laws.
The foreign law granting
divorce as well as the nature of the divorce
granted (w/n it was absolute) must be
proven.

Republic vs. Orbecido, (2005)


The period of reckoning to determine
citizenship for the purpose of the application
of Art.26 par.2 is the time of securing a
divorce.

A. How Done
Should the spouses reconcile, they should file a
corresponding joint manifestation under oath
of such reconciliation. (Art. 65, FC)

B. Effects of Reconciliation
1. Proceedings for legal separation shall be
terminated at whatever stage. (Art. 66, FC)
2. If there is a final decree of legal separation,
it shall be set aside. (Art. 66, FC)
3. The separation of property and forfeiture of
share of guilty spouse shall subsist, unless
the spouses agree to revive their former
property regime or to institute another
property regime. ( Art. 66 cf. Art. 67, FC)
4. Joint custody of children is restored.
5. The right to intestate succession by guilty
spouse from innocent spouse is restored.
The right to testamentary succession
depends on the will of the innocent spouse.

VII. Divorce
(asked in 87, 90, 96, 97, 99, 02, 06 bar
exams)
General Rule
Divorce is not allowed in the Philippines and
even for Filipinos abroad.
Exception
Foreign and Muslim divorces.
Foreign Divorces (asked in 09 bar exam)
Art. 15, Civil Code. Laws relating to family rights and
duties, or to the status, condition and legal capacity of
the persons are binding upon citizens of the
Philippines, even though living abroad.

The Nationality Theory of Jurisdiction /


Nationality Principle applies to personal
rights.

Effect: Filipinos living abroad could not


obtain a valid divorce even in countries
where divorce is legally permissible.

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Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION

Muslim Divorces
Presidential Decree 1083 (Code of Muslim
Personal Laws)

2. Judicial authorization may be obtained when the


consent of one spouse is required by law for any
transaction of the other (subject to Art. 239), and

3. The separate property of both spouses shall be


solidarily liable for the support of the family in the
absence of sufficient community property. The spouse
present shall be given judicial authority to administer
or encumber any specific separate property of the
absent spouse and use the fruits thereof to satisfy the
latters share.

7 forms of Muslim divorces (Art. 45) (TFKILTZ)


a. talaq- repudiation of the wife by the
husband
b. ila- vow of continence by the husband
c. zihar- injurious assimilation of the wife
by the husband
d. lian- acts of imprecation
e. khul- redemption by the wife
f. tafwid- exercise by the wife of the
delegated right to repudiate
g. faskh- judicial decree
Grounds for faskh (Art. 52)
a. The marriage bond shall be severed and
the spouses may contract another
marriage
b. The spouses shall lose their mutual
rights of inheritance
c. The custody of children shall be
determined in accordance with Article 78
of the code
d. The wife shall be entitled to recover from
the husband her whole dower in case
the talaq has been affected after the
consummation of the marriage, or onehalf thereof if effected before its
consummation
e. The husband shall not be discharged
from his obligation to give support in
accordance with Article 67
f. The conjugal partnership, if stipulated in
the marriage settlements, shall be
dissolved and liquidated.
Yasin v. Sharia District Ct, 241 SCRA 606
(1995)
A Muslim divorce dissolves the marital bond
and therefore a woman may use her maiden
name and surname without any special
proceeding in court.

VIII.

De Facto Separation

Rules applicable to De Facto Separation


Art. 100, Family Code. De Facto Separation shall
not affect the regime of absolute community,
except that:
1. The spouse who abandons the conjugal home
without just cause is not entitled to support,

Art. 127. Same rules as above, but for Conjugal


Partnership of Gains
Procedural Rules for Art. 100/127, par. 2:
1. In the case of Art 100/127 par. 2, a verified petition
may be filed in court, attaching the proposed deed or
description of the transaction and the reason why the
other spouses consent has not been secured. (Art.
239)
2. Court shall issue a notice for the initial conference
and shall notify the other spouse to show cause why
petition should not be granted. (Art. 242)
3.
If the petition is not resolved at the initial
conference, then the court shall decide in a summary
hearing. (Art. 246)
4. Its decision shall be final and executory. (Art. 247)

Perez v. CA, 255 SCRA 661 (1996)


Applicability of the tender years presumption
of Art. 213 (No child under 7 years of age
shall be separated from the mother) to de
facto separation, save for compelling
reasons such as neglect, abandonment,
unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment
of child, insanity, communicable disease.

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Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION

consent (Art. 73 [Omission corrected on


Nov. 8, 1968])

Chapter VII. Rights and Obligations


Between Husband and Wife
(asked in 75, and 84 bar exams)
I. OBLIGATION OF SPOUSES
II. RIGHTS OF SPOUSES
III. USE OF SURNAME

I.

III. Use of Surname

Obligations of Spouses (Arts. 68-71,


FC)
Live together (cohabitation Art. 68)
Exemption: One spouse living abroad
or there are valid and compelling
reasons (Art. 69, Par 2)
Exemption to Exemption: Incompatibility
with the solidarity of the family (Art. 69,
Par. 2)
Observe mutual love, respect, and fidelity
Render mutual help and support (Art. 68)
Fix the family domicile.
In case of disagreement, the court shall
decide. (Art. 69, Par. 1)
Jointly support the family. (Art. 70)
From the conjugal property/income of
the fruits of their separate properties
In case of absence/insufficiency, from
their separate properties (liable in
proportion to their properties)
Manage the household. (Art. 71)

Yasin v. Sharia District Court, (1995)


The woman only has an option and not
a duty to use the surname of her
husband, as provided for in Art. 370,
CC. Moreover, when her husband dies,
the woman can revert to her old name
without need for judicial declaration.

Widows
A widow may use the deceased husbands
surname as though he were still living. (Art.
373, CC)

Mistresses
The Supreme Court allowed the mistress to
use her live-in partners name, since
everyone already knew that she was a
mistress, so as to avoid confusion. (Legamia
v. IAC (1984))

Divorcees
The Supreme Court allowed the mistress to
use her live-in partners name, since
everyone already knew that she was a
mistress, so as to avoid confusion.
(Tolentino v. CA (1988))

II. Rights of Spouses (Arts. 72-73, FC)

In case the other spouse neglects his or her


duties or commit acts which tend to bring
danger, dishonor or injury to the family, the
aggrieved party may apply the court for
relief. (Art. 72)
Injury contemplated is physical, moral,
emotional,
or
psychological,
not
financial.
Either spouse may exercise any legitimate
profession, without need for consent of the
other.
The other spouse may only object on
valid, serious, and moral grounds.
In case of disagreement, the Court shall
decide whether
o the objection is proper, and
o benefit has accrued to the family
before OR after the objection.
If BEFORE, enforce resulting obligation
against the community property.
obligation against the separate property
of the spouse who has not obtained

Married Women: (Art. 370, CC)


A married woman may use:
a. Her maiden first name and surname and
add her husband's surname, or
b. Her maiden first name and her
husband's surname or
c. Her husband's full name, but prefixing a
word indicating that she is his wife, such
as Mrs.

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Chapter VIII. Property Relations Between


Spouses
I. GENERAL PROVISIONS
II. DONATIONS BY REASON OF MARRIAGE
III. ACP
A. IN GENERAL
B. WHAT
CONSTITUTES
COMMUNITY
PROPERTY
C. CHARGES UPON THE ACP
D. ADMINISTRATION, OWNERSHIP AND
DISPOSITION OF THE ACP
E. DISSOLUTION OF THE ACP
F. LIQUIDATION
OF
ASSETS
AND
LIABILITIES
IV. CPG
A. WHERE IT APPLIES
B. HUSBAND
AND WIFE PLACE IN
COMMON FUND
C. EXCLUSIVE PROPERTIES
OF THE
SPOUSES
D. WHAT CONSTITUTES THE CPG
E. RULES
F. CHARGES UPON CPG
G. ADMINISTRATION OF THE CPG
H. DISSOLUTION OF THE CPG
I. LIQUIDATION
OF
ASSETS
AND
LIABILITIES
V. SEPARATION OF PROPERTIES DURING
MARRIAGE
VI. PROPERTY REGIME OF UNIONS WITHOUT
MARRIAGE

I.

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

settlement applies to all Filipinos, regardless of


the place of the marriage and their residence.
Exceptions
1. Where both spouses are aliens
2. As to the extrinsic validity of contracts
3. Contrary stipulation
Requirements for Marriage Settlements (Art.
77, FC) (WiSER)
1. Must be in writing (public or private)
2. Signed by the parties
3. Executed before the celebration of the
marriage
4. Must be registered in local civil registry to
affect third persons (If not registered, will not
prejudice third persons, ACP will apply)
5. If party needs parental consent (age 18-21),
parent/guardian must be a party to the
settlement (Art. 78)
6. If party is under civil interdiction or other
disability (not including insanity), court
appointed guardian must be a party (Art. 79)

General Provisions

(asked in 76, 86, 91, 92, 94, 95, 96, 97 and


05 bar exams)
Order to be followed (Arts. 74, 75, FC)
1. Marriage settlements before marriage
spouses can agree to whatever regime they
want (ACP, CPG, complete separation or
any other property regime to be agreed
upon prior to the celebration of the
marriage).
2. Family Code If there are no marriage
settlements, or if the regime agreed upon is
void, the Absolute Community of Property
will be followed
3. Local Customs
General Rule (Art. 80, FC)
Property relations between Filipino spouses are
governed by Philippine laws, regardless of the
place of marriage and their residence
(Nationality Rule- Art 15, NCC).
Hence
The rule that ACP is the default mode of
property relations absent any marriage

General Rule: All modifications to the


marriage settlement must be made
before the marriage is celebrated. (Art.
76)
Exceptions:
Legal Separation (Art. 63 (2), FC)
o The
property
regime
is
dissolved.
Revival of the former property
regime upon reconciliation if the
spouses agree (Art. 66 (2))
A spouse may petition the court for:
o Receivership
o Judicial separation of property,
or
o The authority to be the sole
administrator of the conjugal
partnership
If
the
other
spouse
abandons the other without
just cause or fails to comply
with his or her obligations to
the family. (Art. 128)
Judicial Dissolution (Arts. 135 and
136)
Furthermore: Marriage settlements are
considered
ACCESSORY
to
the
marriage
Stipulations in consideration of
future marriage and donations will
be void if the marriage does NOT
take place. (Art. 81, FC)

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

II. Donations by Reason of Marriage


Requisites of donations propter nuptias: (Art.
82, FC)
a) Made before the celebration of marriage.
b) Made in consideration of the marriage.
c) In favor of one or both spouses.
d) The donor must be one of the betrothed or
any third person
Donations excluded
1. Ordinary wedding gifts given after the
celebration of the marriage
2. Donations in favor of future spouses made
before marriage but not in consideration
thereof
3. Donations made in favor of persons other
than the spouses even if founded on the
intended marriage
Who may donate
1. Spouses to each other
2. Parents of one or both spouses
rd
3. 3 persons to either or both spouses

Moreover, in donations propter nuptias, the


marriage is really a consideration but not in
the sense of giving birth to the obligation.
There can be a valid donation even if the
marriage never took place. However, the
absence of marriage is a ground for the
revocation of the donation. (Solis v. Barroso,
(1928))
Donations propter nuptias are without
onerous consideration, marriage being
merely the occasion or motive for the
donation, not its cause. Being liberalities,
they remain subject to reduction for
inofficiousness upon the donors death, if
they should infringe the legitime of a forced
heir. (Mateo v. Lagua, (1969))

Rules to Follow in Donation Propter


Nuptias
1. Family Code provisions (Arts. 82-87)
2. Ordinary Donation provisions (Art. 83, FC;
Title III of Book III of the NCC)
3. Provisions on testamentary succession and
the formalities of wills for donations on future
property (Art. 84, par. 2)
Distinguished from Ordinary Donations
DONATIONS PROPTER
NUPTIAS
Does not require express
acceptance

ORDINARY
DONATIONS
Express
acceptance
necessary

DONATIONS PROPTER
NUPTIAS
May be made by minors
(Art. 78)
May
include
future
property
If present property is
donated and property is
not absolute community,
limited to 1/5 (Art. 84)
Grounds for revocation In Art. 86

ORDINARY
DONATIONS
Cannot be made by
minors
Cannot include future
property
No limit to donation of
present property provided
legitimes
are
not
impaired
Grounds for revocation in donation laws

Rules
1. Before Marriage
General Rule:
Future spouses cannot donate to each
other more than 1/5 of their present
property (excess shall be considered
void) (Art. 84, FC)
Exception:
If they are governed by ACP
2. During Marriage
General Rule:
Spouses cannot donate to each other,
directly or indirectly (donations made by
spouses to each other during the
marriage are void) (Art. 87, FC)
Exception:
Moderate gifts on the occasion of any
family rejoicing.

Matabuena v Cervantes, (1971)


The
donation
between
common-law
spouses falls within the provision prohibiting
donations
between
spouses
during
marriage.

Harding v. Commercial Union, (1918)


The prohibition on donations can only be
assailed by persons who bear such relation
to the parties or the property itself, that their
rights are being interfered with. Here, the
insurance company of the donated car
cannot assail the validity of the donation. In
addition, the codal exception of moderate
gifts depends on the income class of the
spouses and a car could be considered a
moderate gift that does not infringe the
prohibition of donation between spouses.

Sumbad v. CA, (1999)


The donation made by a man to a woman
was held valid because no proof was shown
that they were still living in a common-law
relationship at the time of the donation.

Donation
of
Property
Encumbrances

Subject

to

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1. Are considered valid.


2. In case of foreclosure
a. if property value < obligation, donee
shall not be liable
b. if property value > obligation, donee
shall be entitled to the excess (Art. 85,
FC)
Grounds for Revocation of Donation Propter
Nuptias (Art. 86, FC) (CAVaLRI)
1. If the marriage is not celebrated or judicially
declared void ab initio, except donations
made in settlements.
2. When the marriage takes place without the
consent of the parents or guardians, as
required by law.
3. When the marriage is annulled, and the
donee acted in bad faith.
4. Upon legal separation, if the donee is the
guilty spouse.
5. If there is a resolutory condition, and it is not
complied with.
6. When donee has committed an act of
ingratitude: (Art. 765, CC) (PCS)
a. An offense against person or property of
donor, or his wife or children under
parental authority.
b. An imputation to the donor of any
criminal offense, or any act involving
moral turpitude, even if proven, unless
the crime is committed against the
donee, his wife or children under his
authority.
c. Refusing to support the donor, if he/she
is legally required to do so.
*The action for filing for revocation of donation
prescribes.

III. Absolute Community of Property


A. In General
(Asked in 98 and 07 bar exams)
When it commences
At the precise moment of the celebration of the
marriage (Art. 88, FC). However, if the marriage
is celebrated before the Family Code took effect
(1988), the default property regime is the
Conjugal Partnership of Gains (CPG).
Waiver of Rights (Art. 89, FC)
General Rule: NOT ALLOWED
Exceptions
a. When there is judicial separation of
property
b. When there is legal separation

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

c.

When the marriage is dissolved (by


death of one of the spouses)
d. When the marriage is annulled
Supplementary Rules to Follow
Co-ownership (Art. 90, FC)

B. What Constitutes Community Property


What it consists
All the property owned by the spouses at the
time of the celebration of the marriage or
acquired thereafter. (Art. 91, FC)
Under the ACP, spouses cannot exclude specific
properties from the regime.
What is Excluded (BGM) (Art. 92, FC)
1. Properties acquired by a gratuitous title, i.e.
donation,
inheritance by testate and
intestate succession, including the fruits of
such properties
EXCEPT: When it was expressly provided
by the donor or testator that the property
shall form part of the ACP
2. Properties for personal use
EXCEPT: Jewelry - they form part of the
ACP
3. Properties acquired before the marriage, for
those with legitimate descendants with a
former marriage (to protect rights of children
by a former marriage)
Presumption
All properties acquired during the marriage form
part of the ACP, unless it be proven that they are
excluded. (Art. 93, FC)

C. Charges Upon the ACP (Art. 94, FC) (4


debts, 2 taxes, 2 expenses, support,
donation)
(asked in 76 bar exam)
1. Support
Spouses
Even if not living together except
when a spouse leaves conjugal
home without just cause
Even during pendency of action for
legal separation or annulment of
marriage
Common children
Legitimate children of previous marriage

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

2.

3.

4.
5.

6.
7.

8.

9.

10.

Illegitimate children - follow the


provisions on Support and (9)
Debts and Obligations Contracted During
Marriage
Either by both spouses or one of them,
with the consent of the other.
In (2) and (3), creditors need not prove
that the debts benefited the family.
Debts Contracted by one Spouse Without
Consent of the other
ACP liable only to the extent that the
debt benefited the family.
Tax, Liens, Repairs on Community Property
Includes both major and minor repairs
Taxes and Expenses for Mere preservation
of Separate properties
Applies only to separate properties by
either spouse being used by the family,
not those that do not benefit the family.
Expenses limited to minor repairs.
Expenses for professional, Vocational, or
Self-Improvement Course of Spouses
Ante-nuptial Debts that Benefited the Family
If the ante-nuptial debt did not benefit
the family, applicable rule is (9).
Donations by Both Spouses to Common
Legitimate Children
Purpose:
professional,
vocational
courses
or
activities
for
selfimprovement
Ante-Nuptial Debts not under (7), Support of
Illegitimate Children, Liabilities of Either
Spouse Arising from Crime or Quasi-Delict
Only ff the debtor-spouse has no
exclusive property or his or her property
is insufficient.
The payments by the ACP are deemed
advances to be deducted from the share
of the guilty spouse upon the liquidation
of the absolute community.
Expenses of Litigation between Spouses
Except when suit is groundless

If community property is insufficient except in


(9), spouses are solidarily liable for the unpaid
balance from their separate properties.
Gambling losses shall be borne by the losing
spouses separate property, winnings shall
accrue to the community property. (Art. 95, FC)

D. Administration,
Ownership
Disposition of ACP

and

Administration of property
Belongs to both spouses jointly. If they disagree
the husbands decision prevails. However, the
wife has five years from the date of the decision
to go to court for recourse. Otherwise, it is

presumed that she agreed with the husbands


decision. (Art. 96, FC)
Except
When the other spouse is incapacitated, or
unable to participate in the administration (e.g.
when abroad). The powers refer solely to
administration; disposition or encumbrance
requires consent of the absent or incapacitated
spouse.
Homeowners Savings & Loan Bank v. Dailo
(2005)
In the absence of (court) authority or written
consent of the other spouse, any disposition
or encumbrance of the conjugal property
shall be void.
Disposition of Property
Either spouse may, through a will, dispose
his/her interest in the community property. (Art.
97, FC) However, the will should refer only to
his/her own share in the community property
Donation of Property
General Rule
Donation of one spouse without the consent
of the other is not allowed (Art. 98, FC)
Exceptions
a. Moderate donations to charity due to
family rejoicing or distress;
b. Moderate gifts by each spouse to the
other due to family rejoicing. (Note:
Whats moderate depends on the socioeconomic status of the family)

E. Dissolution of ACP
ACP terminates upon (Art. 99, FC)
1. Death of either spouse follow rules in Art.
103
2. Legal Separation follow rules in Arts. 63
and 64
3. Annulment or judicial declaration of nullity
follow rules in Arts. 50 to 52
4. Judicial separation of property during
marriage follow rules in Arts. 134 to 138
Rules on De Facto Separation (ART. 100,
FC)
De facto separation does not affect the ACP;
EXCEPT that:
1. Spouse who leaves the conjugal home
without just cause shall not be entitled to
support. He/She, however, is still required to
support the other spouse and the family.
2. If consent is necessary for transaction but is
withheld
or
otherwise
unobtainable,

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3.
4.
5.

6.

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

authorization may be obtained from the


court.
Support for family will be taken from the
ACP.
If ACP is insufficient, spouses shall be
solidarily liable.
If it is necessary to administer or encumber
separate property of spouse who left,
spouse present may ask for judicial authority
to do this.
If ACP is not enough and one spouse has
no separate property, spouse who has
property is liable for support, according to
provisions on support.

Abandonment (Art. 101, FC)


Present spouse may petition the court for:
1. receivership;
2. judicial separation of property; or
3. authority to be the sole administrator of the
absolute
community,
subject
to
precautionary conditions that the court may
impose.
Spouse is prima facie considered to have
abandoned the other spouse and the family if:
1. he/she has left for a period of three months,
2. he/she has failed to inform his/her
whereabouts for a period of three months.

F. Liquidation of Assets and Liabilities

the provisions of law on forfeitures and


delivery of presumptive legitimes.
6. After covering all community obligations and
obligations of spouses, balance of separate
properties shall be delivered to respective
spouses or their heirs, and they will also
divide into two equal shares whatever is left
of the community assets, without prejudice
to the provisions of law on forfeitures and
delivery of presumptive legitimes.
Rules in Case of Termination of Marriage by
Death of One of the Spouses (Art. 103, FC)
1. The community property shall be liquidated
in the same proceeding for the settlement of
the estate of the deceased spouse.
2. If no such judicial settlement proceeding is
instituted, surviving spouse shall liquidate
the community property either judicially or
extra-judicially within one year from the
death of the deceased spouse.
a. If no liquidation is made within the
period, any disposition or encumbrance
involving community property of the
terminated marriage shall be void.
b. Non-compliance
with
liquidation
procedures would mean that a
subsequently contracted marriage will
follow a regime of complete separation
of property.

(asked in 89 and 99)


Process of liquidation of ACP (Art. 102, FC)
1. Inventory of assets of ACP and of spouses,
with market values.
2. Obligations are paid with community
property, and separate obligations not
charged to ACP paid by respective assets of
spouses.
a. If obligations exceed the assets of the
ACP, nothing is divided. Creditors can
go after the separate properties of the
spouses, which are solidarily liable for
the deficiency.
3. Delivery of whatever
exclusive property.

remains

in

their

4. Balance, or net remainder is divided equally


between the spouses, irrespective of how
much each brought into the community.
5. If personal obligations of a spouse exceed
his/her separate property, creditor can go
after the share of the spouse on the net
remainder of the ACP, without prejudice to

Procedure for Liquidation of Community


Properties of Two Marriages (Art. 104, FC)
1. Determine the capital, fruits, and income of
each community upon such proof as may be
considered according to the rules of
evidence.
2. In case of doubt as to which community the
existing properties belong, they shall be
divided between two communities in
proportion to the capital and duration of
each.
Onas v. Javillo, (1934)
Javillo contracted 2 marriages. SC ruled that
each absolute community should be
considered owner of the parcels of land
acquired during its existence.
Death
discontinues ACP.
Vda. De Delizo v. Delizo, (1976
In case of doubt as to which community the
existing properties belong, the same shall be
divided between the different communities in
proportion to the capital and duration of
each.

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

IV. Conjugal Partnership of Gains

34

(Asked in 79 bar exam)


CPG
Exists with the mere fact of marriage

1. Existence
2. Purpose,
duration,
rules
3. Profits

and

4. Equality

5. Personality
6. Commencement
7. Regulation
8. Purpose
9. Causes
dissolution

for

10. Effect of death


of a partner
11. Division
of
properties
12. Management

1. Property acquired
before marriage.
2. Property acquired
during marriage
3. Upon dissolution
of marriage
4. Basis

5. Liquidation

Predetermined by legislator, the law


fixing its conditions.
Divided equally between spouses,
irrespective of the amount of capital that
they bring into marriage
No equality between spouses in control,
management, and disposition, because
the law grants the husband some
predominance.
No juridical personality
At precise moment of celebration of
marriage
By law

Ordinary partnership
Comes into existence according to
agreement between parties
Determined by will of partners.

Depends upon respective capitals of


partners, or upon their agreement
General rule is that all partners have
equal
rights
in
administration,
management,
and
control
of
partnership.
Considered a juridical person
At the time agreed upon by partners

Joint; in case of disagreement, the


husbands decision shall prevail, wife
has recourse to courts

By agreement of parties; subsidiarily,


by law
For profit
Death, insolvency, civil interdiction,
termination of term, express will of any
partner, etc. (Arts 1830-1931)
Surviving partners may choose to
continue partnership
There can be division of profits without
dissolution
Same as individual partners, except
when one or more partners designated
as managers.

CPG
Each spouse retains his/her property;
only fruits part of conjugal property
Part of conjugal property

ACP
Properties become part of community
property
Becomes community property

Separate properties are returned; net


profits divided between spouses or
heirs
Capital and properties of spouses kept
separate and distinct from benefits;
insurmountable
obstacle
to
presumption of solidarity
Exclusive properties will have to be
identified
and
returned,
and
sometimes, identification is difficult.

Net remainder of ACP divided equally


between spouses or heirs

Not particularly for profit


Death, legal separation, annulment,
JDN, judicial separation of property
Dissolution of partnership
Only upon dissolution

A. Where It Applies (Art. 105)


1. For marriages before the implementation of
the Family Code.
2. For marriages after the Family Code, if
agreed to by the parties through a marriage
settlement.

Mutual trust and confidence between


spouses; fosters oneness of spouses

Easier to liquidate because net


remainder of community properties are
simply divided between spouses or
heirs.

Note: CPG begins at the precise moment the


marriage celebrated (Art 107)

PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

B. Husband and Wife Place in Common


Fund (PIPF-EC) (Art. 106)

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

C. Exclusive Properties of the Spouses

4. Share of either spouse in hidden treasure,


whether as finder or owner of property
where treasure is found
5. Acquired through occupation such as
fishing or hunting
6. Livestock existing at dissolution of
partnership in excess of what is brought by
either spouse to the marriage
7. Acquired by chance, such as winnings
from gambling or betting

1. Art 109

1. The proceeds, products, fruits, and income


of their separate properties;
2. Everything acquired by them within marriage
through their own efforts;
3. Everything acquired by them by chance

Directly
acquired or
originally
exclusive
Property
by
substitution

(OGRE)
(1) Property brought into marriage by
each spouse as his/her own
(2) Property acquired by either spouse
during the marriage by gratuitous title
(3) Property acquired by right of
redemption, by barter, or by exchange
with property belonging to either spouse
(4) Property purchased with exclusive
money of either spouse

2. Other Separate Property: (CSI)


a. Collection of credits belonging to one
spouse exclusively but the interests
shall belong to the CPG (Art 119)
b. Sale of separate property of a spouse
c. Indemnity paid in case of expropriation
of separate property or under an
insurance policy covering separate
property.

Spouses
retain
the
ownership,
possession,
administration
and
enjoyment of their exclusive properties
(Art 110, par 1.)
Possession by one spouse of the
separate property the other spouse does
not affect ownership
Transfer of administration of a spouses
exclusive property to the other spouse
must be made in a public instrument
recorded in the registry of property of
the place where the property is located
(Art 110, FC) but ownership is not
conferred to the administrator spouse
(Rodriguez v. de la Cruz, 1907).

D. What Constitutes the CPG (Art. 117)


(asked 75, 76, 78, 85, and 87 bar exams)
(OLF-N-HOLC)
1. Acquired by Onerous Title during the
Marriage at Expense of Common Fund
2. Acquired through the Labor, Industry, Work,
Profession of Either or both Spouses
3. Fruits from common property and net
fruits of exclusive property of each spouse

Moral damages arising from a contract paid


from CPG are also awarded to the CPG
(Zulueta v. Pan-Am, 1973).
Loans contracted during the marriage are
conjugal, and so is any property acquired
therefrom (Mendoza v. Reyes, 1983).

E. Rules
1. presumption that property is conjugal: all
property acquired during the marriage,
whether made, contracted, or registered in
the name of one spouse, are presumed
conjugal unless the contrary is proven (Art.
116, FC).
As a condition sine qua non for the
operation of the presumption in favor of
the conjugal partnership the party who
invokes the presumption must first prove
that the property was acquired during
the marriage. (Acabal v. Acabal, 2005)
"X married to Y" as it appears in land
titles is not conclusive of the conjugal
status of the property (Jocson v. CA,
1989).
Exclusive property brought into a
second marriage remains exclusive
property of that spouse under CPG
regime; ACP is not retroactive for
marriages celebrated under the Civil
Code (Francisco v. CA, 1998).
2. property purchased by installment (paid
partly with conjugal funds and partly with
exclusive funds) Art. 118:
conjugal property if full ownership was
vested during the marriage CPG shall
reimburse the owner-spouse
exclusive property if full ownership was
vested before the marriage ownerspouse shall reimburse the CPG
Exclusive property brought into a second
marriage remains exclusive property under
CPG regime. ACP is not retroactive for
marriages celebrated under the Civil Code
(Castillo v. Pasco, 1964).
Even if the installment is completed after the
marriage, the property is exclusive if

35
PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

ownership was vested in one spouse before


the marriage (Lorenzo v. Nicolas, 1952).
3. rules on improvement on exclusive
property: (Art. 120)
accession - if original value is greater
than new value (value of land + value of
improvements + net change in value),
then land remains exclusive property of
the
owner-spouse;
subject
to
reimbursement
of
the
cost
of
improvement
reverse accession - if original value is
less than new value, then land becomes
conjugal property; subject to the
reimbursement of the value of the
property of the owner-spouse at the
dissolution of the CPG.
Change of ownership takes place at the time
when the improvements are made
(Calimlim-Canullas v. Fortun, 1984).
4. If winning ticket is bought by conjugal
funds, prize is conjugal; otherwise, it is
exclusive property of spouse who owns the
ticket.
5. Property belonging
to
one
spouse
converted into another kind totally different
in nature from its original form during
marriage becomes conjugal in the absence
of proof that the expenses of conversion
were exclusively for the account of the
original
owner-spouse,
subject
to
reimbursement of the value of the original
property from the conjugal partnership
6. Money received under the Social Security
Act is not conjugal, although the
employee-spouse contributes to the SSS
with his salaries, but belongs to the
designated beneficiary under the Social
Security Law.
7. Intellectual property, like copyright or
patent, should, according to Tolentino, citing
Planiol and Ripert, be considered separate
property of the spouse who produces or
invents or discovers it.
8. Business property (e.g. trade-marks, trade
names, service marks, business goodwill)
are merely accessories to some commercial
establishment or product, so that if such
establishment or product is separate
property of one spouse, then the business
property is separate property; but all benefits
or earnings derived from these different
kinds of property during the marriage should
belong to the conjugal property (Tolentino,
id., citing the same authority).

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

F. Charges upon CPG

36

(asked in 87 and 04 bar exams)


Art. 121, Family Code. The conjugal partnership
shall be liable for:
(1) The support of the spouse, their common
children, and the legitimate children of either
spouse; however, the support of illegitimate
children shall be governed by the provisions of
this Code on Support;*
(2) All debts and obligations contracted during the
marriage by the designated administratorspouse for the benefit of the conjugal
partnership of gains, or by both spouses or by
one of them with the consent of the other; *
(3) Debts and obligations contracted by either
spouse without the consent of the other to the
extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses,
including major or minor repairs upon the
conjugal partnership property; *
(5) All taxes and expenses for mere preservation
made during the marriage upon the separate
property of either spouse;
(6) Expenses to enable either spouse to commence
or complete a professional, vocational, or other
activity for self-improvement; *
(7) Ante-nuptial debts of either spouse insofar as
they have redounded to the benefit of the family;
(8) The value of what is donated or promised by
both spouses in favor of their common
legitimate children for the exclusive purpose of
commencing or completing a professional or
vocational course or other activity for selfimprovement;* and
(9) Expenses of litigation between the spouses
unless the suit is found to groundless.:
If the conjugal partnership is insufficient to cover the
foregoing liabilities, the spouses shall be solidarily
liable for the unpaid balance with their separate
properties.

* Same as the rule governing ACP


Categorization of CPG Charges
(Pangalangan notes)
Debts
&
Obligations
(2) Debts incurred:
(a) by
administratorspouse for the
benefit of the
family;
(b) by both
spouses;
(c) by one spouse
with the consent of
the other
(3) by one spouse
without the consent
of
the other for the

Taxes
&
Expenses
(4)
maintenance
of
CPG
properties

Support

(5)
mere
preservation
of
all
exclusive

(6) education
of spouses,
absolute

(1) support of
spouses and
common
children

PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

benefit
of
the
family
(7)
antenuptial
debts
for
the
benefit of the
Family

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

Properties
(9) litigation
expenses,
unless
the
suit
is
groundless

(8) education
of common
children, only
for
value
of
donation

Debts incurred in the exercise of a spouses


profession are charged on the CPG (Javier
v. Osmea, 34 PHIL 336).
Debts incurred during the marriage are
presumed to be conjugal and thus are
charged on the CPG (Cobb-Perez v. Lantin,
23 SCRA 637)
Loan contracts signed by both spouses are
conjugal, and they are jointly liable for
payment, even if only one spouse signs a
subsequent promissory note (DBP v. Adil,
161 SCRA 307).
Debts incurred for the benefit of third
persons are not charged on the CPG
(Luzon Surety Co. v. De Garcia, 30 SCRA
111).

G. Administration of the CPG


(asked in 75, 77, 02 and 06 bar exams)
1. The administration and enjoyment of the
conjugal partnership shall belong to both
spouses jointly. In case of disagreement,
the husband's decision shall prevail,
subject to recourse to the court by the wife
for proper remedy, which must be availed of
within 5 years from the date of the contract
implementing such decision (Art. 124,
par.1).
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. (Abalos v.
Macatangay, Jr, 2004)
2. Disposition or encumbrance of conjugal
property requires: (Art. 124, par. 2)
a. The consent or approval by both
spouses; OR
b. Judicial authority secured in court

Donation of CPG must be with the


consent of the other spouse except
moderate donations for charity, on
occasions of family rejoicing, or family
distress (Art 125, cf. Art 98)
Mere awareness of a transaction is NOT
consent (Jader-Manalo v. Camaisa,
2002)

Homeowners Savings & Loan Bank v.


Dailo (2005)
In the absence of (court) authority or
written consent of the other spouse,
any disposition or encumbrance of
the conjugal property shall be void.

H. Dissolution of the CPG


1. Termination of CPG Art. 126 (cf. Art. 99)
(DLAJ)
a. Death
b. Legal Separation
c. Annulment or declaration of nullity
d. Judicial separation of property
2. CPG not affected by de facto Separation Art.
128 (cf. Art. 100)
3. Abandonment and Absence (cf. Art. 101)
Ayala Investment v. Ching, (1998)
The Supreme Court ruled that indirect
benefits that might accrue to a husband
in signing as a surety or guarantee
agreement not in favor of the family but
in favor of his employer corporation are
not benefits that can be considered as
giving a direct advantage accruing to the
family. Hence, the creditors cannot go
against
the
conjugal
partnership
property of the husband in satisfying the
obligation subject of the surety
agreement. A contrary view would put in
peril the conjugal partnership by
allowing it to be given gratuitously as in
cases
of
donation
of
conjugal
partnership property, which is prohibited.

I.

Liquidation of Assets and Liabilities


(asked in 87 and 89 bar exams)

1. Procedure (Art. 129) IAR-DRIN-PC


a. Prepare an inventory of all properties
b. Amounts advanced by CPG in payment
of personal debts and obligations shall
be credited to CPG
c. Reimburse each spouse for the use of
his/her exclusive funds in the acquisition
of property or for the value of his or her
exclusive property, the ownership of
which has been vested by law in the
conjugal partnership.
d. Debts and obligations of CPG shall be
paid out of the conjugal assets,
otherwise both spouses are solidarily
liable with their exclusive property.
e. Remains of the exclusive properties
shall be delivered to respective ownerspouses

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CIVIL LAW REVIEWER

f.

Indemnify loss or deterioration of


movables belonging to either spouse,
even due to fortuitous event, used for
the benefit of the family
g. Net remainder of CPG shall the
constitute the profits which shall be
divided equally between husband and
wife except when:
o A different proportion or division was
agreed upon in the marriage
settlements
o There has been a voluntary waiver
or forfeiture of such share as
provided in the FC
h. Presumptive legitimes delivered to
common children per Art. 51
i. Conjugal dwelling goes to:
o Spouse with whom majority of
common children choose to remain
(below 7yrs deemed to have chosen
the mother)
o Whoever the court chooses in case
of lack of majority
2. Rules
Property must be recorded in the
registry of property in order to affect
third persons dealing with registered
property.
Spouses are not co-owners of CPG
during the marriage and cannot alienate
the supposed interest of each in the
said properties. The interest of the
spouses in the CPG is only inchoate or
a mere expectancy and does not ripen
into title until it appears after the
dissolution and liquidation of the
partnership that there are net assets.
(De Ansaldo v. Sheriff of Manila, 1937)
Rules on liquidation upon death and
liquidation of CPG of 2 or more
marriages same as in ACP (Art. 103 &
104)
Support to surviving spouse & children
during liquidation is charged against the
fruits or income of their shares in the
properties. (Art. 133)
Personal debt acquired during marriage
of either spouse is not chargeable
against community property (Go v.
Yamane, 2006)

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

V. Separation
Marriage

of

Properties

During

38

Art. 134, Family Code. In the absence of an express


declaration in the marriage settlements, the
separation of property between spouses during the
marriage shall not take place except by judicial order.
Such judicial separation of property may either be
voluntary or for sufficient cause.

Judicial separation of property may either be


(1) voluntary or (2) for sufficient cause.

A. Sufficient Causes and Grounds for


Return to Previous Regime
Sufficient Causes for
Judicial Separation of
Property (Art. 135)
(CALASA)
(1) Spouse of petitioner
has been sentenced
to a penalty which
carries with it civil
interdiction
(2) Spouse of petitioner
is judicially declared
an absentee
(3) Loss of parental
authority of the
spouse of petitioner
has been decreed by
the court
(4) Spouse of petitioner
has abandoned the
latter or failed to
comply with his or
her obligations to the
family
(5) The spouse granted
the power of
administration in the
marriage settlements
has abused that
power

(6) At the time of the


petition, the spouses
have been separated
in fact for at least 1
year and
reconciliation is
highly improbable.

Grounds for Return to


Previous Regime
(Art. 141)
(1) Termination of the civil
interdiction

(2)

Reappearance
absentee spouse

of

(5) Restoration of parental


authority to the spouse
previously deprived of
it
(4) When the spouse who
left the conjugal home
without
legal
separation
resumes
common life with the
other
(3) When the court, being
satisfied
that
the
spouse granted the
power
of
administration in will
not again abuse that
power, authorizes the
resumption of said
administration
(6) Reconciliation and
resumption of common
life of the spouse who
have separated in
facts for at least 1 year

(7) When after voluntary


dissolution of the ACP
or CPG has been
judicially decreed upon
the joint petition of the
spouses, they agree to
the revival of the
former
property

PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

4. rights previously acquired by creditors are


not prejudiced (Art. 140)

regime. No voluntary
separation of property
may
thereafter be
granted.

D. Transfer of Administration to the Other


Spouse (Art. 142) (GACA)

B. Rules

When one spouse.


1. Becomes the guardian of the other.
2. Is judicially declared an absentee.
3. Is sentenced to a penalty which carries with
it civil interdiction.
4. Becomes a fugitive from justice or is in
hiding as an accused in a criminal case.

1. Each spouse shall contribute to the family


expenses, in proportion to their income. In
case of insufficiency, the market value of
their separate properties. (Art. 146 par. 1)
2. Liability of spouses to the creditors of the
family shall be SOLIDARY. (Art. 146, par. 2)

Abandonment is defined as the lack of


intention to return to the conjugal home,
without justifiable cause (Dela Cruz v. Dela
Cruz)

C. Effects of separation
between spouses

of

If the other spouse is not qualified by reason of


incompetence, conflict of interest, or any other
just cause, the court shall appoint a suitable
person to be the administrator.
In Re: voluntary dissolution of CPG of spouses
Bernas, 14 SCRA 237
A voluntary separation of properties is not
perfected by mere consent but upon the
decree of the court approving the same. The
petition for voluntary separation of property
st
was denied because the children of the 1
nd
and 2 marriages were not informed; the
separation of property may prejudice the
rights and shares of the children.

property

1. ACP or CPG is dissolved and liquidated (Art.


137)
2. Provisions on complete separation of
property applies after dissolution of
ACP/CPG (Art. 138)
a. Liability spouses to creditors shall be
solidary with their separate properties
b. mutual obligation to support each
continues except when there is legal
separation
3. Petition and final judgment of separation of
property must be filed in the appropriate
registries (Art. 139)

Maquilan v. Maquilan, (2007)


A compromise agreement with judicial
recognition is valid, pending petition for
declaration of nullity of marriage.

VI. Property regime of unions without marriage


(asked in 79, 87, 98, 00 and 09 bar exams)
Art. 147

Art. 148

When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the rules on coownership.

In cases of cohabitation not falling under the preceding


Article, only the properties acquired by both of the parties
through their actual joint contribution of money, property,
or industry shall be owned by them in common in
proportion to their respective contributions. In the
absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits
of money and evidences of credit.

In the absence of proof to the contrary, properties acquired while they


lived together shall be presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by them in equal shares. For
purposes of this Article, a party who did not participate in the acquisition
by the other party of any property shall be deemed to have contributed
jointly in the acquisition thereof if the former's efforts consisted in the care
and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in common,
without the consent of the other, until after the termination of their
cohabitation.
When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of
their common children. In case of default of or waiver by any or all of the
common children or their descendants, each vacant share shall belong to
the respective surviving descendants. In the absence of descendants,
such share shall belong to the innocent party. In all cases, the forfeiture
shall take place upon termination of the cohabitation. (144a)

If one of the parties is validly married to another, his or


her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith is
not validly married to another, his or her shall be forfeited
in the manner provided in the last paragraph of the
preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith.

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PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

Applicability

Salaries and wages


Properties acquired
through exclusive
funds
Properties acquired
by both through
work or industry

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES


Art.147
1. man and woman
2. living together as husband and wife
3. with capacity to marry (Art.5 without any
legal impediment)
a. at least 18 years old
b. not Art. 37 (incestuous void
marriage)
c. not Art. 38 (void marriage by reason
of public policy)
d. not bigamous
4. other void marriages due to absence of
formal requisite
Owned in equal shares

Art.148
1.
2.
3.
4.
5.
6.
7.

man and woman


living together as husband and wife
NOT capacitated to marry (Art.35(1)
under 18 years old)
adulterous
relationship
(e.g.
concubinage)
bigamous/polygamous
marriage
(Art.35(4))
incestuous marriages under Art.37
Void marriages by reason of public
policy under Art.38

Separately owned by parties

Remains exclusive provided there is proof

Remains exclusive

Governed by rules on co-ownership

Owned in common in
respective contribution

Owned in equal shares since it is


presumed to have been acquired through
joint efforts
if one party did not participate in
acquisition, presumed to have contributed
through care and maintenance of family
and household

Properties acquired
while
living
together

Forfeiture

When only one of the parties is in good faith,


the share of the party in bad faith shall be
forfeited:
1. In favor of their common children
2. In case of default of or waiver by any or all
of the common children or their
descendants, each vacant share shall
belong to the respective surviving
descendants
3. In the absence of such descendants, such
share belongs to the innocent party

Yaptinchay v. Torres, (1969)


Application of Article 148; there was no
proof of actual contribution, while there was
a subsisting marriage apart from the union
without marriage, therefore, the N. Forbes
house goes to the CPG of subsisting
marriage

Juaniza v. Jose, (1979)


Property acquired by a married party during
cohabitation with another not his spouse
belongs to the CPG of the marriage, and the
other party cannot be held jointly/severally
liable for it

Villanueva v. CA, (2004)


Transfer of certificate and tax declarations
are not sufficient proof of joint contribution.

proportion

to

No presumption of joint acquisition. When


there is evidence of joint acquisition but
none as to the extent of actual
contribution, there is a presumption of
equal sharing
If one party is validly married to another
his/her share in the co-owned properties
will accrue to the ACP/CPG of his/her
existing valid marriage
If the party who acted in bad faith is not
validly married to another, his/her share
shall be forfeited in the same manner as
that provided in Art 147
The same rules on forfeiture shall apply if
both parties are in bad faith

Joaquino v. Reyes (2004)


Prohibitions against donations between
spouses must likewise apply to donations
between persons living together in illicit
relations;

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Chapter IX. The FAMILY and the FAMILY HOME

Chapter IX. The Family and the Family


Home
I.

II.

I.

FAMILY
A. FAMILY RELATIONS
B. GENERAL RULE
C. EXCEPTIONS
FAMILY HOME
A. GENERAL RULE
B. EXCEPTIONS
C. BENEFICIARIES OF THE FAMILY HOME
D. REQUISITES FOR CREDITOR TO AVAIL
OF THE RIGHT UNDER ARTICLE 160

Family

(asked in 91 bar exam)


Basic social institution which public policy
cherishes and protects hence, no suit between
members of the family shall prosper unless
compromise between parties has failed.

stranger takes the case out of the ambit of


FC 151.

II. Family Home


(asked in 94 and 07 bar exam)
Dwelling place of a person and his family
Guidelines
1. It is deemed constituted from time of actual
occupation as a family residence
2. It must be owned by person constituting it
3. It must be permanent
4. Rule applies to valid and voidable and even
to common-law marriages under Arts.147
and 148
5. It continues despite death of one or more
spouses or unmarried head of family for 10
years or as long as there is a minor
beneficiary (Art.159)
6. Can only constitute one family home

A. Family relations include:


1.
2.
3.
4.

Between husband and wife


Between parents and children
Among other ascendants and descendants
Among brothers and sisters, full or half
blood.

B. General Rule
For a suit between members of the same family
to prosper, the following are required:
1. Earnest efforts towards a compromise have
been made
2. Such efforts have failed
3. Such earnest efforts and the fact of failure
must be alleged
Note: The case will be dismissed if it is shown
that no such efforts were made.

C. Exceptions
(VJLAFF)

to

the

general

A. General Rule
The family home is exempt from (EFA):
1. Execution
2. Forced sale
3. Attachment

B. Exceptions in the exemption of the


family home from execution (Art. 156)
1. Nonpayment of taxes.
2. Debts incurred prior to the constitution of the
family home.
3. Debts secured by mortgages on the
premises before or after such constitution.
4. Debts due to laborers, mechanics,
architects, builders, materialmen and others
who have rendered service or furnished
material for the construction of the building.

rule

1.
2.
3.
4.
5.
6.

Civil status of persons,


Validity of marriage or a legal separation,
Any ground for legal separation,
Future support,
Jurisdiction of courts,
Future legitime

Hontiveros v. RTC, (1999)


Whenever a stranger is a party in a case
involving family members, the requisite
showing of earnest efforts to compromise is
no longer mandatory, as such inclusion of a

C. Beneficiaries of the family home (Art.


154)
1. Husband and wife, or an unmarried person
who is the head of the family
2. Parents (may include parent-in-laws),
ascendants, descendants, brothers and
sisters (legitimate/illegitimate), who are living
in the family home and who depend on the
head of the family for support
Requisites to be a beneficiary (RLD)
1. The
relationship
is
within
enumerated
2. They live in the family home

those

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CIVIL LAW REVIEWER

3. They are dependent for legal support on the


head of the family
Requirements for the sale, alienation,
donation, assignment, or encumbrance of
the family home
1. the written consent of the person
constituting it,
2. his/her spouse, and
3. majority of the beneficiaries of legal age

Chapter IX. The FAMILY and the FAMILY HOME

Versola v. Mandolaria, (2006)


The proof that the house is the family home
must be alleged against creditors; Applied
the rule in Art. 160, FC.

Patricio v. Dario III, (2006)


WON the grandson of the deceased is a
beneficiary according to Art. 154 FC. The
beneficiary should satisfy all requisites; he
must be dependent on the head of the
family.

Arriola v. Arriola, (2008)


This case involves half brothers and a
second wife; the family home includes the
land it is built on. The rule in Art. 159 of the
FC regarding the 10 year period is applied,
the parties involved must wait.

Note: If there is a conflict, the Court will decide.


In case of death (ART. 159)
- The family home shall continue despite the
death of one or both spouses or of the
unmarried head of the family for a period of
ten years, or as long as there is a minor
beneficiary.
- The heirs cannot partition the home unless
the court finds compelling reasons therefor.

D. Requisites for creditor to avail of the


right under Article 160
Requisites
1. He must be a judgment creditor;
2. His claim is not among those excepted
under Article155, and
3. He has reasonable grounds to believe that
the family home is worth more than the
maximum amount fixed in Article 157
Procedure to avail of right under Article
160
1. The creditor must file a motion in the court
proceeding where he obtained a favorable
for a writ of execution against the family
home.
2. There will be a hearing on the motion where
the creditor must prove that the actual value
of the family home exceeds the maximum
amount fixed by the FC either at the time of
its constitution or as a result of
improvements introduced thereafter its
constitution.
3. If the creditor proves that the actual value
exceeds the maximum amount the court will
order its sale in execution.
4. If the family home is sold for more than the
value allowed, the proceeds shall be applied
as follows:
a. First, the obligation enumerated in
Article 155 must be paid
b. Then the judgment in favor of the
creditor will be paid, plus all the costs of
execution
c. The excess, if any, shall be delivered

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CIVIL LAW REVIEWER

Chapter X. PATERNITY and FILIATION

b. And under Art. 53 (the second marriage


of a widow or widower who has not
delivered to his or her children by his or
her first marriage the legitime of said
children). (SEMPIO-DIY)

Chapter X. Paternity and Filiation


I.
II.
III.
IV.
V.

KINDS OF FILIATION
IMPUGNING LEGITIMACY
PROOF OF FILIATION
LEGITIMATION
RIGHTS OF LEGITIMATE OR ILLEGITIMATE
CHILDREN

I.

Kinds of Filiation

De Castro v. Assidao-De Castro, (2008)


Common
children
born
before
the
annulment are legitimate, and therefore
entitled to support from each of the spouses.

(Arts. 163, 164, 165 FC)


1. Natural
a. Legitimate
b. Illegitimate
2. Legal Fiction (Adoption)
Legitimate Children
(asked in 79, 82, 84, 85, 99 and 03 bar
exams)
Conceived or born during the marriage of
parents
May be thru natural means or by artificial
insemination.
1. Natural/Biological
Liyao v. Liyao, (2002): A child conceived or
born during a valid marriage is presumed to
belong to that marriage, regardless of the
existence of extramarital relationships.
2. Artificial Insemination (Art. 164)
Requisites for children conceived through
artificial insemination to be considered
legitimate:
a. Artificial insemination made on wife
b. Sperm comes any of the following:
Husband
Donor
husband and donor
c. In case of donor sperm, husband and
wife must authorize/ratify insemination in
a written instrument
Executed & signed by husband and
wife before the birth of the child.
Recorded in the civil registry
together with the birth certificate of
the child.
Illegitimate Children
(asked in 80, 82, 83, 84, 90, 93, 99, 00, 07,
08 and 09 bar exams)
General Rule: Those conceived and born
outside of a valid marriage.
Exceptions:
a. Children of marriages void under Art.36
(psychological incapacity).

II. Impugning Legitimacy (Art. 166)


A. Grounds
Thus the grounds for impugning the legitimacy of
a child are:
1. Physical
impossibility
for
sexual
intercourse within the first 120 days of the
300 days which immediately preceded the
child's birth due to:
2. Other biological or scientific reasons,
except Artificial Insemination.
3. And in case of Artificial Insemination, the
consent of either parent was vitiated
through
fraud,
violence,
mistake,
intimidation, or undue influence.
Macadangdang v. CA, (1980)
Only a proximate separation between the
spouses is not sufficient physical separation
as grounds for impugning legitimacy.
Andal v. Macaraig, (1951)
Serious illness of the husband which
absolutely prevented him from having sexual
intercourse with his wife, like if the husband
was already in comatose or a vegetable, or
sick with syphilis in the tertiary stage so that
copulation
was
not
possible.
But
tuberculosis, even in its most crucial stage,
does not preclude copulation between the
sick husband and his wife.
Jao v. CA, (1987)
Blood-type matching is an acceptable
means of impugning legitimacy, covered by
Art. 166(2), under "biological or other
scientific reasons." But this is only
conclusive of the fact of non-paternity.

B. Action for Impugning Legitimacy (Arts.


170 and 171)
The action for impugning the legitimacy of a
child may be brought within 1, 2, or 3 years from
the knowledge of the birth, or the knowledge
of registration of birth.

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CIVIL LAW REVIEWER

1. Within 1 year if husband or any heirs


reside in the same city or municipality where
the child was born or his birth was recorded.
2. Within 2 years if the husband or all heirs
live in the Philippines but do not reside in the
same city or municipality where the child's
birth took place or was recorded
3. Within 3 years if the husband or all heirs
live outside the Philippines when the child's
birth took place or was recorded in the
Philippines
If the birth of the child has been concealed or
was unknown to the husband, the above periods
shall be counted:
1. from the discovery or knowledge of the
birth of the child, or
2. from the discovery or knowledge of its
registration,
3. whichever is earlier.
Sayson v. CA
Legitimacy can only be attacked directly
General Rule: Only the husband can
impugn the legitimacy of a child. If he does
not bring action within the prescribed
periods, he cannot file such action anymore
thereafter, and this is also true with his heirs.
Exception: That the heirs of the husband
may file the action or continue the same if it
has already been filed
a. If the husband
died before the
expiration of the period fixed for bringing
his action
b. If he should die after the filing of the
complaint without having desisted
c. If the child was born after the death of
the husband.

III. Proof of Filiation (Arts. 172 and 175


(1))
(asked in 85, 95, 05 and 06 bar exams)

A. Rules
Legitimate or illegitimate children may prove
their filiation in the same way and on the same
evidence.
General Rule: They may only prove their status
using the following pieces of evidence:
1.
2.

3.
4.

Their record of birth appearing in the civil registry.


An admission of his filiation (legitimate or
illegitimate) by his parent or parents in a public
document or a private handwritten instrument and
signed by said parent or parents. (SEMPIO-DIY)
Proof of open and continuous possession of
status as legitimate or illegitimate child
Any other means stated by the rules of court or
special laws

Chapter X. PATERNITY and FILIATION

Mendoza v. Melia, 17 SCRA 788


Baptismal certificates are given probative
value only for births before 1930. Birth
certificates must be signed by the parents
and sworn for it to be admitted as evidence.
Baluyut v. Baluyut, (1990)
Unsigned birth certificates are not evidence
of recognized filiation.
Acebedo v. Arquero, (2003)
Baptismal certificates are only conclusive of
the sacrament administered, and cannot be
used as proof of filiation.
Lim v. CA, (1975)
Marriage certificates cannot be used as
proof of filiation.
Jison v. CA, (1998)
Rule 130, Sec. 40 is limited to objects
commonly known as family possessions
reflective of a family's reputation or tradition
regarding pedigree like inscriptions on
tombstones, monuments, or coffin plates.
Eceta v. Eceta (2004)
Signature of the father on the birth certificate
is considered as an acknowledgement of
paternity and mere presentation of a duly
authenticated copy of such certificate will
successfully establish filiations.
Heirs of Rodolfo Baas v. Heirs of Bibiano
Baas, (1985)
"Su padre [Your father]" ending in a letter is
only proof of paternal solicitude and not of
actual paternity. Signature on a report card
under the entry of "Parent/Guardian" is
likewise inconclusive of open admission.
De Jesus v. Syquia, (1933)
By "open and continuous possession of the
status of a legitimate child" is meant the
enjoyment by the child of the position and
privileges usually attached to the status of a
legitimate child, like bearing the paternal
surname, treatment by the parents and
family of the child as legitimate, constant
attendance to the child's support and
education, and giving the child the
reputation of being a child of his parents.
Agustin v. CA, (2005)
DNA evidence can be used as proof of
paternity.
De Jesus v. Estate of Decedent Juan Gamboa
Dizon (2001)
The due recognition of an illegitimate child in
a record of birth, a will, a statement before a
court of record, or in any authentic writing, is

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CIVIL LAW REVIEWER

Chapter X. PATERNITY and FILIATION

in
itself
a
consummated
act
of
acknowledgement of the child, and no
further court action is required.
Gono-Javier vs. Court of Appeals, (1994)
Mere possession of status as an illegitimate
child does not make a recognized
illegitimate child but is only a ground for
bringing an action to compel judicial
recognition by the assumed parent.
Herrera v. Alba, (2005)
In assessing the probative value of DNA
evidence, therefore, courts should consider,
among other things, the following data:
a. How the samples were collected,
b. How they were handled,
c. The possibility of contamination of the
d.
e.
f.

samples,
The procedure followed
samples,
Whether the proper
procedures were followed
tests,
and the qualification of
conducted the tests.

because either or both of them were below


eighteen (18) years of age at the time of
childs conception may be legitimated.
Grounds for impugning legitimation
1.
2.
3.

V. Rights of Legitimate and Illegitimate


Children (SSS)
1. Surname
a.
b.

in analyzing the
standards and
in conducting the

a.

the analyst who

B. Action for Claiming Filiation (Arts. 173


and 175 (2))

The child can bring the action during his or


her lifetime and even after the death of the
parents. The action does not prescribe as
long as he lives.
If the child is a minor, or is incapacitated or
insane, his guardian can bring the action in
his behalf.

IV. Legitimation (Arts. 177 and 182)

b.
a.
b.

2.

The child was conceived and born outside of


wedlock.
General rule: The parents, at the time of the
child's conception, were not disqualified by any
impediment to marry each other.

Exception: RA 9858 - Children born to


parents who were so disqualified only

Legitimate and legitimated: in accordance to


provisions in the family code
Illegitimate: entitle to support but support will
come from separate properties of parent.

Republic v. Vicencio, (1998)


A legitimate child's use of the father's
surname is mandatory.

De Asis v. CA, (1999)


Obligation to support a legitimate child
cannot be waived or compromised.

David v. CA, (1995)


Parental authority over an illegitimate child
belongs to the mother.

Tonog v. CA, (2002)


However, this may be temporarily denied to
the mother by reason of her incapacity.

Mossesgeld v. CA, (1998)


The father cannot force the use of his
surname without first establishing legitimacy.

Under RA 9255, only an acknowledgment


by the father is necessary for the use of the
father's surname.

Capote v. CA, (2007)


An illegitimate child already given the
father's surname without the latter's
acknowledgment, must revert to using the
mother's surname.

Requisites for legitimation


1.

Legitimate and legitimated: those granted in


Civil Code
Illegitimate: the share of a legitimate child

3. Support

(asked in 82, 90, 92, 04 08 and 09 bar


exams)
"Legitimated" children are illegitimate children
who because of the subsequent marriage of
their parents are, by legal fiction, considered
legitimate.

Legitimate and legitimated: Surname of


father and mother
Illegitimate: uses surname of mother but the
fathers surname may be used if father has
explicitly recognized the child as his (RA
9255, Revilla Law)

2. Succession (asked in 09 bar exams)

Estate of Rogelio Ong v. Diaz, (2007)


DNA evidence can still be used even after
the death of the parent.

The subsequent marriage of the child's parents is


void.
The child allegedly legitimated is not natural.
The child is not really the child of the alleged
parents. (SEMPIO-DIY)

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PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

Chapter XI. ADOPTION

Chapter XI. Adoption


I.

R.A. 8552
A. WHO MAY ADOPT
B. WHO MAY BE ADOPTED
II. ADOPTION PROCEDURE UNDER RA 8552
IRR
A. PRE-ADOPTION SERVICES
B. EFFECTS OF ADOPTION
C. RESCISSION OF ADOPTION
D. EFFECTS OF RESCISSION
E. RECTIFICATION OF SIMULATED BIRTHS
III. R.A. 8043: INTER-COUNTRY ADOPTION ACT
OF 1995
A. WHO MAY ADOPT
B. WHO MAY BE ADOPTED
C. WHERE TO FILE APPLICATION
D. DOCUMENTS
TO
SUPPORT
APPLICATION
E. INTER-COUNTRY ADOPTION BOARD
F. TRIAL CUSTODY

ADOPTION
(Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03,
04, 05, 07, 08 bar exams)
LEGITIMATION
The law merely
makes legal what
exists by nature

Persons
affected

Only
children

Procedure

Extrajudicial acts of
parents
Only
by
both
parents

Who
applies

Effect

I.

natural

Same status and


rights with that of a
legitimate child not
only in relation to
the
legitimizing
parents but also to
other relatives

ADOPTION
The law merely
creates
by
fiction
a
relation which
did not in fact
exist
Generally
applies
to
strangers
Always
by
judicial decree
Husband and
wife
adopt
jointly
with
exceptions
(RA8552)
Creates a rel.
only between
the child and
the
adopting
parents

RA 8552: Domestic Adoption Act of


1998

A. Who May Adopt (Sec.7)


1. Filipino Citizens
a. Of legal age
b. In possession of full civil capacity and
legal rights
c. Of good moral character

d. Has not been convicted of any crime


involving moral turpitude
e. Emotionally and psychologically capable
of caring for children
f. At least sixteen (16) years older than
adoptee, except when adopter is
biological parent of the adoptee or is the
spouse of the adoptees parent
g. In a position to support and care for
his/her children in keeping with the
means of the family
2. Aliens
a. Possession of the same as the
qualifications for Filipinos
b. His/her country has diplomatic relations
with the Philippines
c. Has been living continuously for 3 years
(provided that absences not exceeding
60 days per 1 year for professional,
business, or emergency reasons are
allowed) in RP prior to the filing of
application
and
maintains
such
residence until the decree is entered
d. Has been certified by his/her diplomatic
or consular office or any appropriate
government agency that he/she has the
legal capacity to adopt in his/her country
e. His/her government allows the adoptee
to enter his/her country as his/her
adoptee
f. Has submitted all the necessary
clearances and such certifications as
may be required
**Items numbers c, d and e may be
waived
under
the
following
circumstances:
a. Adopter is a former Filipino Citizen who
th
seeks to adopt a relative within the 4
degree of consanguinity or affinity
b. One who seeks to adopt the legitimate
or illegitimate child of his/her Filipino
spouse
c. One who is married to a Filipino Citizen
and seeks to adopt jointly with his/her
th
spouse a relative within the 4 degree of
consanguinity or affinity of the Filipino
spouse
3. Guardians
With respect to theirs ward after the
termination of the guardianship and
clearance of his/her accountabilities.
Husband and wife shall adopt jointly;
Except
1. if one spouse seeks to adopt the legitimate
child of the other

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CIVIL LAW REVIEWER

Chapter XI. ADOPTION

B. Who May Be Adopted (Sec. 8)


1. Any person below 18 years old who has
been administratively or judicially declared
available for adoption
2. The legitimate child of one spouse by the
other spouse
3. An illegitimate child by a qualified adopter to
improve the childs status to that of
legitimacy
4. A person of legal age if, prior to the
adoption, said person has been consistently
considered and treated by the adopter(s) as
his/her child since minority
5. A child whose previous adoption has been
rescinded
6. A child whose biological or adoptive
parent(s) has died, provided that no
proceedings shall be initiated within 6
months from the time of death of said
parent(s)
Consent Necessary for Adoption (Sec. 9)
1. The prospective adoptee if 10 years or older
2. The
prospective
adoptees
biological
parents, legal guardian or the government
instrumentality or institution that has custody
of the child
3. The prospective adopters legitimate and
adopted children who are ten years or over
and, if any, illegitimate children living with
them
4. The spouse, if any, of the person adopting
or to be adopted.
Note: A decree of adoption shall be effective
as of the date the original petition was filed.
It also applies in case the petitioner dies
before the issuance of the decree of
adoption to protect the interest of the
adoptee.
Child to be Adopted
Biological parent signs a
Deed
of
Voluntary
Commitment (Rescissible
within 6 months)
Voluntary Commitment:
Declaration of Availability
for Adoption
Involuntary Commitment:
(1) Announcement of

Adopter
Inquiry at DSWD

Attendance of DSWD
Adoption
Fora
and
Seminars
(include
counseling)

Missing Child
Tri-Media
(2) Declaration
Abandonment
(3) Declaration
Availability
Adoption
Case Study Report

in

47

of
of
for
Application for Adoption
Case Study Report
Matching
Placement
Supervised Trial Custody
Home Study Report
Recommendation
and
Consent
Petition for Adoption
Adoption Decree

II. Adoption Procedure under RA 8552


IRR (Secs. 10-32)
(as discussed in Prof. Elizabeth Pangalangans
class)

A. Pre-Adoption Services
The DSWD shall provide for the following
services:
1. Counseling services for the biological
parents,
prospective
parents,
and
prospective adoptee
2. Exhaust all efforts to locate the biological
parents, if unknown

B. Effects of Adoption (Secs. 16-18)


1. Parental Authority
All legal ties between biological parents and
adoptee are severed, and the same shall be
vested on the adopter, except if the
biological parent is the spouse of the
adopter.
2. Legitimacy
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents
and purposes and shall be entitled to all the
rights and obligations provided by law to
legitimate children born to them without
discrimination of any kind.
3. Succession
Adopter and adoptee shall have reciprocal
rights of succession without distinction from
legitimate filiation, in legal and intestate
succession. If adoptee and his/her biological
parents had left a will, the law on
testamentary succession shall govern.

PERSONS AND FAMILY RELATIONS

2. if one of the spouse seeks to adopt his/her


illegitimate child provided that other spouse
has signified his/her consent
3. if spouses are legally separated from each
other
** if spouses jointly adopt, parental authority
shall be exercised jointly

C. Rescission of Adoption (Sec. 19)


Adoption, being in the best interest of the child,
shall not be subject to rescission by the
adopter(s).
Adopted may request for rescission, with the
assistance of DSWD, if a minor, or over 18 but
incapacitated, based on the ff grounds:
1. repeated physical and verbal maltreatment
despite having undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with
parental obligations
However, the adopter(s) may disinherit the
adopted based on causes as enumerated in Art.
919 of the NCC.

D. Effects of Rescission (Sec. 20)


1. The parental authority of the adoptee's
biological parents, if known, OR the legal
custody of the DSWD shall be restored if the
adoptee is still a minor or incapacitated.
2. The reciprocal rights and obligations of the
adopters and the adoptee to each other
shall be extinguished.
3. The court shall order the Civil Registrar to
cancel the amended certificate of birth of the
adoptee and restore his/her original birth
certificate.
4. Successional rights shall revert to its status
prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be
respected.

E. Rectification of Simulated Births (Sec.


22)
A person who has, prior to the effectivity of this
Act, simulated the birth of a child shall not be
punished for such act: Provided,
1. That the simulation of birth was made for the
best interest of the child and that he/she has
been consistently considered and treated by
that person as his/her own son/daughter:
2. That the application for correction of the
birth registration and petition for adoption
shall be filed within five (5) years from the
effectivity of this Act and completed
thereafter:
3. That such person complies with the
procedure for Legal Adoption as specified in
this Act, which includes the Child and Home
Study Report of DSWD to determine if
alleged conditions in the application for

Chapter XI. ADOPTION

rectification exist, and other requirements as


determined by the Department.
Tamargo v. CA (1992)
Where the petition for adoption was granted
after the child had shot and killed a girl, the
Supreme Court did not consider that
retroactive effect may be given to the decree
of adoption so as to impose a liability upon
the adopting parents accruing at a time
when adopting parents had no actual or
physically custody over the adopted child.
Retroactive effect may perhaps be given to
the granting of the petition for adoption
where such is essential to permit the accrual
of some benefit or advantage in favor of the
adopted child. In the instant case, however,
to hold that parental authority had been
retroactively lodged in the adopting parents
so as to burden them with liability for a
tortuous act that they could not have
foreseen and which they could not have
prevented
would
be
unfair
and
unconscionable.
Lazatin v. Campos, (1979)
Adoption is a juridical Act, proceeding in
rem. Because it is artificial, the statutory
requirements in order to prove it must be
strictly carried out.
Petition must be
announced in publications and only those
proclaimed by the court are valid. Adoption
is never presumed.
Santos v. Aranzanso, (1966)
Validity of facts behind a final adoption
decree cannot be collaterally attacked
without impinging on that courts jurisdiction.
DSWD v. Belen, (1997)
Participation of the appropriate government
instrumentality in performing the necessary
studies and precautions is important and is
indispensable to assure the childs welfare.
Landingin v. Republic, (2006)
Consents for adoption must be written and
notarized.
Sayson v. CA. (1992)
Adopted children have a right to represent
their adopters in successional interests. (I
dont know the basis for this doctrine but
according to SCRA and my notes, the
decision in this case was: Although an
adopted child shall be deemed to be a
legitimate child and have the same rights as
the latter, these rights do not include the
right of representation. The relationship
created by the adoption is between only the

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PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEWER

adopting parents and the adopted child. It


does not extend to the blood relatives of
either party.)

III. RA 8043: Inter-Country Adoption Act


of 1995
INTER-COUNTRY ADOPTION refers to the
socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the
decree of adoption is issued outside the
Philippines.

A. Who May Adopt (Sec. 9)


Any foreign national or a Filipino citizen
permanently residing abroad who has the
qualifications and none of the disqualifications
under the Act may file an application if he/she:
1. Is at least 27 years of age and at least 16
years older than the child to be adopted, at
the time of application unless the adopter is
the parent by nature of the child to be
adopted or the spouse of such parent
2. If married, his/her spouse must jointly file for
the adoption
3. Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and has
undergone the appropriate counseling from
an accredited counselor in his/her country
4. Has not been convicted of a crime involving
moral turpitude
5. Is eligible to adopt under his/her national law
6. Is in a position to provide the proper care
and support and to give the necessary moral
values and example to all his children,
including the child to be adopted
7. Agrees to uphold the basic rights of the child
as embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and
to abide by the rules and regulations issued
to implement the provisions of this Act
8. Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws

Chapter XI. ADOPTION

B. Who May Be Adopted (Sec. 8)


1. Only a legally-free child may be the subject
of inter-country adoption.
2. A legally-free child is one who has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with
the Child and Youth Welfare Code.
3. No child shall be matched to a foreign
adoptive family unless it is satisfactorily
shown that the child cannot be adopted
locally.
4. In order that such child may be considered
for placement, the following documents must
be submitted to the Board:
a. Child study
b. Birth Certificate / Foundling Certificate
c. Deed of Voluntary Commitment/ Decree
of Abandonment/ Death Certificate of
parents
d. Medical Evaluation / History
e. Psychological Evaluation, as necessary
f. Recent photo of the child

C. Where to File Application (Sec.10)


Application shall be filed with the Philippine
Regional Trial Court having jurisdiction over the
child, or with the Inter-Country Adoption Board,
through an intermediate agency, whether
governmental or an authorized and accredited
agency, in the country of the prospective
adoptive parents.

D. Application Should Be Supported By


The Following Documents Written And
Officially Translated In English (Sec.
10)
1. Birth Certificate of applicants
2. Marriage Contract and Divorce decree, if
applicable
3. Written consent of their biological or
adoptive children above 10 years of age in
the form of sworn statement,
4. Physical,
medical
and
psychological
evaluation by a duly licensed physician and
psychologist
5. Income Tax Returns or any document
showing the financial capability of the
applicant
6. Police Clearance
7. Character reference from the local
church/minister, applicants employer and a
member of the immediate community who
have known the applicant for at least 5 years
8. Recent postcard-sized pictures of the
applicant and his immediate family

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CIVIL LAW REVIEWER

Chapter XI. ADOPTION

E. Inter-Country Adoption Board

F. Trial Custody (Sec. 14)


1. The governmental agency or the authorized
and accredited agency in the country of the
adoptive parents shall be responsible for the
trial custody and the care of the child. It shall
also provide for counseling and other related
services.
2. The trial custody shall be for a period of 6
months from the time of placement.
3. It starts upon actual physical transfer of the
child to the applicant who, as actual
custodian, shall exercise substitute parental
authority over the person of the child
4. The adopting parents shall submit to the
governmental agency or the authorized and
accredited agency, which shall in turn
transmit a copy to the Board, a progress
report of the child's adjustment. The
progress report shall be taken into
consideration in deciding whether or not to
issue the decree of adoption.

50
PERSONS AND FAMILY RELATIONS

1. as the central authority in matters relating to


inter-country adoption
2. Ensures that all possibilities for adoption of
the child under the Family Code have been
exhausted and that inter-country adoption is
in the best interest of the child

Chapter XII. Support

Chapter XII. SUPPORT

(asked in 84, 85, 05, 08 bar exams)


I.

GENERAL PROVISIONS
A. KINDS
B. CHARACTERISTICS
C. HOW SUPPORT IS GIVEN
II. WHO ARE OBLIGED TO SUPPORT EACH
OTHER
III. PROPERTIES ANSWERABLE FOR SUPPORT
IV. ORDER OF SUPPORT
A. IF THERE ARE MULTIPLE OBLIGORS
B. IF THERE ARE MULTIPLE RECIPIENTS

I.

Support

Consists of everything indispensable for


sustenance, dwelling, clothing, medical
attendance, education and transportation, in
keeping with the financial capacity of the
family (Art. 194).

The right and duty to support, especially the


right to education, subsists even beyond the
age of majority (Art. 194).

The amount of support is in proportion to the


means of the provider and the needs of the
receiver, and can be reduced or increased if
such circumstances change (Arts. 201 202).

The obligation to give support shall be


DEMANDABLE from the time the person
who has a right to receive the same needs it
for maintenance, but it shall not be
PAYABLE except from the date of judicial or
extra-judicial demand (Art. 203).

When, WITHOUT THE KNOWLEDGE of the


person obliged to give support, it is given by
a stranger, the stranger has the right to
claim the same from the person obliged,
unless it appears that he gave it without
intention of being reimbursed (Art. 206).

When the person obliged to give support


UNJUSTLY REFUSES OR FAILS to give
support when urgently needed, any third
person may furnish support to the needy
individual, with right of reimbursement from
the person obliged to give support. This
particularly applies when the father or
mother of a minor child unjustly refuses to
support or fails to give support to the child
when urgently needed (Art. 207).
Future support cannot be the subject matter
of a compromise; such are void (Art. 2035,
CC).

Refusal to support children or descendants


without justifiable cause is a sufficient
condition for the disinheritance of parents or
ascendants,
whether
legitimate
or
illegitimate (Art. 920, CC).
Unjustified refusal to support ones children
or spouse is a sufficient cause for
disinheriting a spouse (Art. 921, CC).

Spouses are jointly responsible for the


family's support. Support expenses shall be
paid from the CP, or in absence thereof, the
income/fruits of their separate properties, or
in insufficiency/absence of such, from the
separate properties (Art. 70).
___________

A. Kinds of Support
1. Legal that which is required to be given by
law
2. Judicial that which is required to be given
by court order whether pendente lite or in a
final judgment
3. Voluntary or Conventional by agreement

B. Characteristics of Support (PREVIEW)


1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with
regard to future support
4. Exempt from attachment or execution,
except if support is contractual or given by
will. In such cases, any excess legal support
can be subject to levy on attachment or
execution.
5. Reciprocal on the part of those who are by
law bound to support each other
6. Variable

C. How Support is Given (Art. 204)


1. Payment of the amount;
2. Accepting the recipient in the home of the
provider, unless there is a legal or moral
obstacle from doing so.

II. Who are Obliged to Support Each


Other (Art. 195)
1. Spouses;
2. Legitimate ascendants and descendants;
3. Parents and their children (legitimate and
illegitimate) and the children of the latter
(legitimate and illegitimate);

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CIVIL LAW REVIEWER

4. Legitimate brothers and sisters, whether of


full or half-blood;
5. Illegitimate brothers and sisters, EXCEPT
when the need for support of one (of age) is
due to a cause imputable to his/her fault or
negligence (Art. 196).
[NOTE: Both legitimate and illegitimate children
are entitled to support.]

III. Properties Answerable for Support


(Art. 197-198)
1. From the separate property of the obligor. If
no separate property, the ACP/CPG (if
financially capable) shall advance the
support, to be deducted from the obligors
share upon liquidation of such regime.
2. Pending legal separation or annulment,
support (pendente lite) for spouses and
children will come from the ACP/CPG. After
final judgment granting the petition, mutual
support obligation between spouses ceases.
(But in legal separation court may order
guilty spouse to give support to innocent
spouse.)
[NOTE: De facto separation does not affect the
ACP, except that the spouse who leaves the
conjugal home without just cause shall not be
entitled to support (Art. 100).]

IV. Order of Support (SDAB)


A. Order of support if there are multiple
obligors (2 or more; Art. 199)
1.
2.
3.
4.

Spouses
Descendants, nearest in degree
Ascendants, nearest in degree
Brothers and Sisters

When two or more are obliged to give


support, the payment shall be divided
between them IN PROPORTION to their
resources;
Also, in case of URGENT NEED and by
special circumstances, judge may order only
one obligor to furnish support without
prejudice to reimbursement from other
obligors of the share due from them (Art.
200).

Chapter XII. SUPPORT

B. Order of priority if there are multiple


recipients (Sempio-Diy)
1. Observe order in Article 199 (SDAB);
2. But if the concurrent obligees are the
spouse and a child subject to parental
authority, the child shall be preferred.
[NOTE: Tolentino says that the above
preference given to a child under parental
authority over the spouse should prevail only if
the person obliged to support pays it out of his
own separate property. So if the support comes
from ACP or CPG, the above rule of preference
for the child does not apply.]

Pelayo v. Lauron, (1909)


Even if the parents-in-law were the ones
who called for the physicians services for
the childbirth of their daughter-in-law, it is
the womans husband who is bound to pay
the fees due to the physician.

Lacson v. Lacson, (1968)


Man is still liable for support in arrears since
the mother advanced it from a stranger (the
uncle of the daughters).

Lacson v. Lacson, (2006)


Acknowledgment of and commitment to
comply with support obligation through a
note in his own handwriting is proof that a
demand was made.

52
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CIVIL LAW REVIEWER

Chapter XIII. Parental Authority


I.

PARENTAL
AUTHORITY

GENERAL
PROVISIONS
A. CUSTODY
B. OTHER RIGHTS AND DUTIES IN
EXERCISE OF PARENTAL AUTHORITY
II. SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY
III. SUSPENSION
OR
TERMINATION
OF
PARENTAL AUTHORITY
IV. RIGHTS AND DUTIES OF CHILDREN

I.

Parental Authority

(asked in 94, 03 and 05 bar exams)


(patria potestas):
Its the mass of rights and obligations which
parents have in relation to the person and
property of their children until their emancipation,
and even after this under certain circumstances
(Manresa).
Parental authority includes (Art. 209 FC):
1. The caring for and rearing of children for
civic consciousness and efficiency;
2. The development of the moral, mental and
physical character and well-being of said
children
Rules as to the exercise of parental
authority:
1. The father and the mother shall jointly
exercise parental authority over the persons
of their common children. In case of
disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary (Art. 211 FC)
2. If the child is illegitimate, parental authority
is with the mother (Art.176 FC; see also
Chapter 10).
Cases
when
parental
authority
and
responsibility may be transferred or
renounced:
Adoption;
Guardianship; or
Commitment of the child in an entity or
institution engaged in child care or in a
childrens home
Characteristics of parental authority:
1. It is a natural right and duty of the parents
(Art. 209 FC)
2. It cannot be renounced, transferred or
waived, except in cases authorized by law
(Art 210 FC)
3. It is jointly exercised by the father and the
mother (Art. 211 FC)

Chapter XIII. PARENTAL AUTHORITY

4. It is purely personal and


exercised through agents
5. It is temporary
________________

cannot

be

A. Custody
Parental Preference Rule
The natural parents, who are of good character
and who can reasonably provide for the child,
are ordinarily entitled to custody as against all
persons (Santos v CA, 1995).
Who exercises authority in cases of death,
absence, remarriage, or separation of
parents
In case one parent is absent or already
dead, the present or surviving parent (Art.
212 FC)
Remarriage shall not affect the parental
authority over the children (Art. 212 FC)
In case of a void/annulled marriage, and
there is no agreement bet. spouses, the
parent designated by the court (Art. 43 FC
par 1; Art. 49 FC).
Innocent spouse gets custody of minor
children in legal separation (Art. 63 FC par
3).
The court shall take into account all relevant
considerations, especially the choice of the
child over seven years of age, unless the
parent chosen is unfit (Art. 213 FC par 1).
Tender Years Presumption
NO child under 7 years of age shall be
separated from the mother, unless the court
finds compelling reasons to order otherwise.
(Art. 213 FC par 2; Gamboa v. CA, 2007)
Examples of compelling reasons are:
When the mother is insane;
with a communicable disease that might
endanger the life or health of the child;
is maltreating the child; or
has another child by another man who lives
with her. (Cervantes v. Fajardo, 1989)
[NOTE: Prostitution or infidelity to husband does
not make a mother unfit as parent.]

B. Other Rights and Duties in Exercise of


Parental Authority
Rights of Parents upon their children
To have them in their custody (Art. 220 FC
par 1)
To represent them in all matters affecting
their interests (Art. 200 FC par 6)
Demand respect and obedience and impose
discipline on them (Art. 200 FC par 7&8; see
also People v Silvano, 1999)

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CIVIL LAW REVIEWER

Chapter XIII. PARENTAL AUTHORITY

Administer the property of a child for her/his


support and education, unless title/transfer
provides otherwise (Art. 226 FC par 1)
Administer the fruits and income (ONLY) of
the childrens property primarily to support
the child and secondarily to use for the daily
needs of the family (Art. 226 FC par 2)
To give or withhold consent on marriage,
pre-nuptial, donation propter nuptias,
adoption, and employment
To disinherit them for just cause

Duties of Parents upon their children


Support and upbringing in accordance to
their means (Art. 220 par 1)
Educate, instruct, and provide them with
moral and spiritual guidance, and love and
understanding (Art. 220 par 3
Defend them against unlawful aggression
Answer for damages caused by their fault or
negligence, and for civil liability for crimes
committed by them (Art. 221 FC)
Give their lawful inheritance
Liability of parents for torts committed by
their minor children (Art. 221 FC; Art. 2180
CC)
Parents and other persons exercising
parental authority are civilly liable for the
torts of their unemancipated children:
Provided they are living in their
company, and
Subject to the appropriate defenses
provided by law, like observing the
diligence of a good father of a family to
prevent the damage (Libi v. IAC, 1992)
If the minor child is, therefore, not living with
the parents but has been entrusted to the
care of other persons, or is an intern in
school, the liability does not apply.
This liability of the parents and those
exercising parental authority over the child is
solidary and primary and direct, not
subsidiary

II. Substitute
Authority

and

Special

Parental

(Asked in 2003 bar exam)


Substitute parental authority exercised by (in
order):
1. The surviving grandparent (Art. 214 FC)
2. Oldest brother or sister, over 21 years old,
unless unfit or unqualified (Art. 216 FC par
2).

3. Childs actual custodian, over 21 years old,


unless unfit or unqualified (Art. 216 FC par
3)
[NOTE: The same order applies to the
appointment of judicial guardian]
Special parental authority exercised by (Art.
218 FC)
1. School, its administrators and teachers, or
2. The individual, entity or institution engaged
in child care.
Substitute
Parental
Authority
It is exercised in
case of death,
absence, or in
case
of
unsuitability of
parents.

Special Parental Authority

It is exercised concurrently with the


parental authority of the parents
and rests on the theory that while
the child is in the custody of the
person exercising special parental
authority, the parents temporarily
relinquish parental authority over
the child to the latter.

St. Marys Academy v. Carpitanos, (2002)


The special parental authority and
responsibility applies to all authorized
activities, whether inside or outside the
premises of the school, entity or institution.

Liability of those exercising special parental


authority over the child (Art. 219 FC)
1. They are principally and solidarily liable
for damages caused by the acts or missions
of the minor child while under their
supervision,
instruction
or
custody.
HOWEVER, this liability is subject to the
defense that the person exercising parental
authority exercised proper diligence.
2. The parents and judicial guardians of the
minor or those exercising substitute parental
authority over the minor are subsidiarily
liable for said acts and omissions of the
minor.
Effects of Parental Authority Upon the
Property of the Child (Art. 225 FC)
The Father and Mother shall jointly exercise
legal guardianship over the property of the
minor child without court appointment
In case of disagreement, the fathers
decision shall prevail, unless there is judicial
order to the contrary
If the market value of the property or the
annual income of the child exceeds
P50,000, the parent is required to furnish a
bond of not less than 10% of the value of the
childs property or income

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CIVIL LAW REVIEWER

Termination

of

Grounds for Suspension of Parental


Authority (CLEBC; Art. 230-31 FC)
1. Conviction of parent for crime punished w/
civil interdiction
2. Treats child with excessive harassment and
cruelty
3. Gives corrupting orders, counsel or example
4. Compels child to beg
5. Subjects or allows acts of lasciviousness
Parental Authority Permanently Terminates
(Art. 228 FC)
1. Upon death of parents
2. Upon death of child
3. Upon emancipation of child
4. If the parents exercising parental authority
has subjected the child or allowed him to be
subjected to sexual abuse (Art. 232 FC)
Termination of parental authority which can
be revived by final judgment (Art. 229 FC)
1. Upon adoption of the child;
2. Upon the appointment of a general guardian
for the child;
3. Upon judicial declaration

IV. Rights and Duties of Children


Art. 356, NCC
parental care
receive at least elementary education
be given moral and civil training by parents
or guardian
live in an atmosphere conducive to his
physical,
moral,
and
intellectual
development
Art. 3, PD603
to be born well
right to a wholesome family life
right to a well-rounded development
right to a balanced diet, adequate clothing,
shelter, proper medical attention, and all
basic physical requirements of a healthy life
raised in an atmosphere of morality and
rectitude
education commensurate to his abilities
full opportunities for a safe and wholesome
recreation
protection against exploitation and other bad
influences
right to the care, assistance and protection
of the State
right to an efficient and honest government

right to grow up as a free individual

55
Duties of Children:
Art. 357, NCC
obey and honor his parents or guardian
respect old relatives and persons holding
substitute parental authority
exert his utmost for his education and
training
cooperate with the family in matters for his
own good
Art. 4, PD603
strive to live an upright and virtuous life
love, obey, respect his parents and
cooperate with them in strengthening the
family
extend his love to his brothers and sisters
exert his utmost to develop his potentials

PERSONS AND FAMILY RELATIONS

III. Suspension
or
Parental Authority

Chapter XIII. PARENTAL AUTHORITY

Chapter XIV. FUNERALS

Chapter XIV. Funerals


I.

General Guidelines

Art. 305, Civil Code. The duty and the right to make
arrangements for the funeral of a relative shall be in
accordance with the order established for support,
under Article 294. In case of descendants of the same
degree, or of brothers and sisters, the oldest shall be
preferred. In case of ascendants, the paternal shall
have a better right.
Art. 306, Civil Code. Every funeral shall be in
keeping with the social position of the deceased.
Art. 307, Civil Code. The funeral shall be in
accordance with the expressed wishes of the
deceased. In the absence of such expression, his
religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the funeral
shall be decided upon by the person obliged to make
arrangements for the same, after consulting the other
members of the family.
Art. 308, Civil Code. No human remains shall be
retained, interred, disposed of or exhumed without the
consent of the persons mentioned in articles 294 and
305.
Art. 309, Civil Code. Any person who shows
disrespect to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the deceased for
damages, material and moral.

Guidelines in making funeral arrangements


The persons who preferred in the right to
make funeral arrangements may waive the
right expressly or impliedly in which case the
right and duty immediately descend to the
person next in the order
It must be in keeping with the social position
of the deceased.
Law shall prevail over the will of the persons
who have the right to control the burial of
deceased exhumation, evidential purpose,
disposition of corpse by deceased,
mutilation of corpses and autopsies.
Corpses which are to be buried at public
expenses may also be used for scientific
purposes under certain conditions.
Expressed wishes of the deceased is given
priority provided that it is not contrary to law
and must not violate the legal and
reglamentary provisions concerning funerals
and disposition of the remains (time,
manner, place or ceremony)
In the absence of expressed wishes, his
religious beliefs or affiliation shall determine
the funeral rights.
In case of doubt, the persons in Art. 199
shall decide.
Any person who disrespects the dead or
interferes with the funeral shall be liable for
material and moral damages.

Art. 310, Civil Code. The construction of a tombstone


or mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses.

Duty
and
Right
to
make
funeral
arrangements (in relation to Art. 199 FC)
1. Spouse
2. Descendants in nearest degree
3. Ascendants in nearest degree
4. Brothers and sisters
5. Municipal authorities if there are no
persons who are bound to support or if such
persons are without means

- end of Persons and Family Relations -

56
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CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

TABLE of CONTENTS

SUCCESSION
Table of Contents
Chapter V. Partition and Distribution of
Estate .............................................................. 83
I.
Concept of Partition ............................ 83
II.
Effects of Partition............................... 84
III. Nullification of Partition ....................... 84
IV. Important Periods in Partition ............. 85

Chapter II. Testamentary Succession ..........61


I.
Concept ...............................................61
II.
Testamentary Capacity .......................61
III. Formalities of Wills ..............................61
IV. Qualifications of Witnesses to a Notarial
Will 62
V. Qualifications of Witnesses to a Notarial
Will 63
VI. Institution of Heirs ...............................63
VII.
Applicable Principles of Private
International Law .........................................63
VIII.
Codicils
and
Incorporation
by
Reference ....................................................64
IX. Revocation of Wills and Testamentary
Dispositions..................................................64
X. Allowance and Disallowance of Wills..65
XI. Substitution of Heirs ............................66
XII.
Legitimes.........................................67
XIII.
Preterition........................................69
XIV.
Reserva Troncal .............................69
XV.
Disinheritance .................................70
XVI.
Legacies and Devises.....................71

Chapter VI. Application of the Important


Concepts through Sample Computational
Problems......................................................... 86
I.
Institution of Heirs ............................... 86
II.
Legitimes............................................. 86
III. Intestate Succession........................... 87
IV. Accretion ............................................. 87
V. Collation .............................................. 88

Chapter III. Intestate Succession..................74


I.
Causes
for
Legal
or
Intestate
Succession...................................................74
II.
The Intestate or Legal Heirs................74
III. Fundamental Underlying Principles in
Legal or Intestate Succession......................74
IV. Relationship (Arts. 963-969, CC) ........75
V. The Right of Representation (Art. 970,
CC) 75
VI. Order of Legal or Intestate Succession
76
VII.
Concurrence in Legal or Intestate
Succession...................................................77
VIII.
Outline of Intestate Shares .............77
IX. Order of Concurrence in the Case of an
Adopted Child (Art, 190, FC) .......................78
Chapter
IV.
Provisions
Common
to
Testamentary and Intestate Succession .....79
I.
Accretion .............................................79
II.
Capacity to Succeed ...........................80
III. Acceptance
and
Repudiation
of
Inheritance ...................................................81
IV. Collation (Arts. 1061-1077, CC)..........81

58
SUCCESSION

Chapter I. Concept of Succession................59


I.
Definition of Succession (Art. 774, CC)
59
II.
Opening of Succession (Art. 777, CC) 59
III. Kinds of Succession (Art. 778, CC) ....59
IV. Heirs ....................................................60

Kristine Bongcaron
Emil Lunasco
Lead Writers
Alex Lopez
Writer

CIVIL LAW
Kristine Bongcaron
Patricia Tobias
Subject Editors

ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

PRINTING & DISTRIBUTION


Kae Guerrero

DESIGN & LAYOUT


Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya

LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo

Chapter I. Concept of Succession


I.
II.
III.
IV.

DEFINITION OF SUCCESSION
OPENING OF SUCCESSION
KINDS OF SUCCESSION
KINDS OF HEIRS

I.

Definition of Succession (Art. 774,

CC)
It is a mode of acquisition
by virtue of which the property, rights and
obligations
to the extent of the value of the inheritance,
of a person
are transmitted through his death to another
or others
either by his will, or by operation of law
a process of
transmission of property,
rights, and obligations not extinguished by
death (Balane)

II. Opening of Succession (Art. 777, CC)

Heads
Katz Manzano Mary Rose Beley
Sam Nuez Krizel Malabanan
Arianne Cerezo Marcrese Banaag
Volunteers

The rights to succession are transmitted


from the moment of the death of the
decedent.
However, a person may be presumed
dead for the purpose of opening his
succession (Rules on presumptive death
in Arts. 390-391, CC). In this case,
succession is only of provisional character
because there is always a chance that the
absentee may still be alive.

MOCK BAR COMMITTEE


Lilibeth Perez

BAR CANDIDATES WELFARE

III. Kinds of Succession (Art. 778, CC)

Testamentary (Art. 779, CC) - results from


the designation of an heir made in a will

Legal or intestate (Art. 960, CC) - takes


place by operation of law in the absence of a
valid will
If a person dies without a will or with a
void will or one which has subsequently
lost its validity;
The suspensive condition attached to
the institution of heir does not happen or
is not fulfilled or the heir dies before the
testator or repudiates the inheritance,
there being no substitution and no right
of accretion takes place
When the heir instituted in incapable of
succeeding, except in cases provided in
this Code.
Heir dies before the testator

Dahlia Salamat

LOGISTICS
Charisse Mendoza

SECRETARIAT COMMITTEE
Jill Hernandez
Head
Loraine Mendoza Faye Celso
Mary Mendoza Joie Bajo
Members

59
SUCCESSION

SUCCESSION TEAM

Chapter I. CONCEPT OF SUCCESSION

SUCCESSION

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Chapter I. CONCEPT OF SUCCESSION

Testator repudiates the inheritance

Mixed (Art. 780, CC) - effected partly by will


and partly by operation of law

IV. Heirs

Those who are called to the whole or to an


aliquot portion of the inheritance either by
will or by operation of law

Compulsory Heirs those who succeed by


force of law to some portion of the
inheritance, in an amount predetermined by
law known as the legitime, of which they
cannot be deprived by the testator, except
by a valid disinheritance. They succeed
regardless of a will.

Voluntary or Testamentary Heirs those


who are instituted by the testator in his will,
to succeed to the portion of the inheritance
of which the testator can freely dispose.
They succeed by reason of a will.

Legal or Intestate Heirs those who


succeed to the estate of the decedent who
dies without a valid will, or to the portion of
such estate not disposed of by will. They
succeed in the absence of a valid will,
although this is not the only ground for
intestacy, as can be seen in Chapter III.

SUCCESSION

60

Chapter II. TESTAMENTARY SUCCESSION

Chapter II. Testamentary Succession

I.
II.
III.
IV.
V.
VI.
VII.

Concept of Testamentary Succession


Testamentary Capacity
Formalities of Wills
Qualifications of Witnesses to a Notarial Will
Amending a Will
Institution of Heirs
Applicable Principles of Private International
Law
VIII. Codicils and Incorporation by Reference
IX. Revocation of wills and Testamentary
disposition
X. Allowance and Disallowance of wills
XI. Substitution of Heirs
XII. Legitimes
XIII. Preterition
XIV. Reserva Troncal
XV. Disinheritance
XVI. Legacies and Devices

I.

Concept

Common Requirements for Both Kinds of


Wills (Art. 804, CC)
1. Every will must be in writing; and
2. Executed in the language known to the
testator.
_____________

1. In writing (Art. 804, CC)


2. In the language known to the testator (Art.
804, CC)

Law in force at the time the will


was executed (Art. 795, CC)

Intrinsic
Validity

Law of decedents nationality at


the time of his death (Art. 16
and 2263, CC)

II. Testamentary Capacity

Kinds of Wills
1. Notarial will- Ordinary or attested will (Arts.
804-808, CC)
2. Holographic will (Arts. 804 and 810, CC)

Governing Law

Formal Validity

III. Formalities of Wills

Specific Requirements for Notarial Wills


(Asked in 75, 86, 90, 93, 07 and 08)

Governing Law on Validity with Respect to


the Time of Execution
Aspect of the
Will

disease, injury or other cause. (Art. 799,


CC)
Soundness of mind is presumed (Art.
800, CC)

Requirements (SAP)
Testator is of Sound mind at the time of
execution (Art. 798, CC)
Not under 18 years of Age (Art. 797,
CC)
Not expressly Prohibited by law to make
a will (Art. 796, CC)
Soundness of mindRules to remember:
It is sufficient that the testator (NPC)
o Knew the Nature of the estate to
be disposed of; (N)
o The Proper objects of his bounty;
(P)
o Character of the testamentary act
(C) (Art. 799, CC)
It is not necessary that the testator be in
full possession of all his reasoning
faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by

3. SUBSCRIPTION: Subscribed to, at the


end (Art. 805, CC) a. By the testator himself; or
b. By the testators name written by a
representative in his presence and
under his express direction.
4. ATTESTATION: Attested and subscribed
by 3 or more credible witnesses in the
presence of the testator and of one
another (Art. 805, CC).
GENERAL RULE
The law presumes that
every person is of sound
mind

EXCEPTION
If within one month
before making a will the
testator is known to be
insane, the burden of
proof that he had a lucid
interval is on the one
alleging the validity of
the will.

Supervening
incapacity
will
not
invalidate the will. Supervening capacity
will also not validate the will. (Art. 801,
CC)
The attestation clause shall state the ff:
Number of pages;
The fact that the testator or his
representative under his express
direction signed the will and every

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Test of Presence:
Jaboneta vs. Gustilo, (1906): Not
whether they actually saw each other
sign, but whether they might have seen
each other sign had they chosen to do
so considering their mental and physical
condition and position with relation to
each other at the moment of inscription
of each signature.

5. MARGINAL SIGNATURES: Testator or his


representative shall write his name, and the
witnesses shall sign each and every page
except the last page (Art. 805, CC)

Exceptions:
When the will consists of only one
page
Abangan vs. Abangan, (1919):
When the will consists of only two
pages, the first of which contains all
dispositions and is signed at the
bottom by the testator and the
witnesses, and the second page
contains only the attestation clause
duly signed at the bottom by the
witnesses.

In the case of Matias vs. Salud (1957),


the use of thumbprint was allowed.

Icasiano vs. Icasiano, (1964): The


inadvertent failure of one witness to affix
his signature to one page of a
testament, due to the simultaneous
lifting of two pages in the course of
signing, is not per se sufficient to justify
denial of probate.

6. PAGE
NUMBERINGS:
Numbered
correlatively (Art. 805, CC), i.e., Page One
of Five pages
7. Acknowledged before a notary public by
the testator and the witnesses (Art. 806, CC)
In the case of Cruz vs. Villasor (1973)
the court ruled that the Notary public
cannot be considered a third witness.
He cannot acknowledge before himself
his having signed the will. To allow such
would have the effect of having only two
attesting witnesses to the will which

would be in contravention of Arts. 805


and 806.
_____________
Special Requirements for Notarial Wills
1. Deaf Mute (Art. 807, CC)
a. Testator must personally read the will; or
b. Testator shall personally designate two
persons to read the contents and
communicate it to him in some
practicable manner.
2. Blind (Art. 808, CC)
a. The will shall be read to the testator
twice - By one of the subscribing
witnesses and by the notary public
acknowledging the will.
b. In the case of Garcia vs. Vasquez
(1970), the court considered a testator
suffering from Glaucoma as legally
blind.
_____________
Requisites for a Holographic Will
1. In writing (Art. 804, CC)
2. In a language known to the testator (Art.
804, CC)
3. Entirely written, dated and signed in the
hand of the testator himself (Art. 810, CC)

IV. Qualifications of
Notarial Will

Witnesses to a

Qualifications (Art. 820, CC)


1. Of sound mind
2. Aged 18 years or over
3. Not blind, deaf or dumb
4. Able to read and write
Disqualifications (Art. 821, CC)
1. Person not domiciled in the Philippines
2. Those who have been convicted
falsification, perjury, or false testimony.

of

Interested witness (Art. 823, CC)


General Rule
Devises or legacies in
favor of a spouse, parent
or child who also attests
to the will as a witness
shall be void

Exception
If there are three other
competent witnesses, the
device or legacy shall be
valid and the interested
witness shall be treated
as a mere surplasage

Creditors are not incompetent to be


witnesses (Art. 824, CC)
Supervening incompetency shall not prevent
the allowance of the will (Art. 822, CC)

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page in the presence of instrumental


witnesses
That the witnesses signed the will
and all its pages in the presence of
the testator and of one another.

Chapter II. TESTAMENTARY SUCCESSION

CIVIL LAW REVIEWER

Chapter II. TESTAMENTARY SUCCESSION

Witnesses to a

Notarial Will v. Holographic Will


Notarial Will
NOTARIAL codicil ONLY

Holographic WIll
Notarial Codicil; or
Holographic Codicil; or
Additional
dispositions
below the signature,
dated and signed in the
hand of the testator.

Codicil (Art. 825, CC)- it is a supplement


or addition to a will, made AFTER the
execution and annexed to be taken as
part thereof, by which any disposition
made in the original is explained,
added to, or altered.

Effect of insertion written by another person


on the validity of a holographic will)
When made
After
the
execution,
without
consent
of
testator
After execution, with
consent
After execution, validated
by testators signature

Contemporaneous to the
execution of the will

Effect
Insertion considered not
written. Validity cannot be
defeated by the malice or
caprice of a third person
Will is valid, insertion is
void.
Insertion becomes part of
the will. Entire will
becomes void because it
is not wholly written by
the testator.
Will is void because it is
not written entirely by the
testator

6. Only the free portion can be disposed of


by institution.

A voluntary heir who dies before the testator


or proves to be incapacitated transmits
nothing to his heirs (Art. 851, CC)

Three principles in institution of heirs


1. Equality of heirs (Art. 846, CC)
a. Heirs instituted without designation of
shares shall inherit in equal parts
b. NOTE: This applies even to institution of
full and half-blood siblings.
2. Individuality of institution (Art. 847, CC)
Example: I designate A, B, and the
children of C. Unless otherwise stated, if
C has two children, the estate will be
distributed in four equal parts.
3. Simultaneity of institution (Art. 849, CC)
Example: I designate my brother A and
his children. A and his children will
inherit at the same time, unless
otherwise expressly stated that they will
inherit successively.
Institution based on a false cause (Art. 850,
CC)
GENERAL RULE
EXCEPTION
False
cause
is If the testator would
considered not written not have made the
and the institution will institution had he
take effect
known the false cause,
the institution would
NOT take effect

VI. Institution of Heirs


(Asked in 94, 05, 06, and 08)
Definition (Art. 841, CC)
It is an act by virtue of which a testator
designates in his will the persons who
are to succeed him.
Requisites for a valid institution
1. Testator has capacity to make the
institution
2. The institution is made in a will
3. Institution is made personally by the
testator and is not left to a third person
4. Persons instituted must be identified or
identifiable
5. There must be no preterition of compulsory
heirs

Example: I designate A to half of the


estate ONLY because he is the husband
of my daughter. Note that the reliance
on the false cause must be clear and
unmistakable.

VII. Applicable Principles


International Law

of

Private

Governing Law As to Time of Execution of


Will
Aspect of the Will
Formal Validity
Intrinsic Validity

Governing Law
Law in force at the time
the will was made
Law
of
decedents
nationality at the time of
his death (Art. 16, CC)

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V. Qualifications of
Notarial Will

Chapter II. TESTAMENTARY SUCCESSION

Governing Law as to Place of Execution of


Will
Testator

Place of
Execution of Will
Philippines
Outside of
Philippines

the

Filipino

Alien

Philippines

Outside of
Philippines

the

Governing Law
Philippine Law (Art.
16, CC)
1. Law of the country
in which it is executed
(Art. 17, CC); or
2. Philippine Law (Art.
815, CC)
1. Philippine Law; or
2. Law of the country
of which testator is a
citizen or subject (Art.
817, CC)
1. Law of the place
where the will is
executed (Art. 17,
CC); or
2. Law of the place
where the testator
resides; or
3.
Law
of
the
testators country; or
4. Philippine Law (Art.
816, CC)

Aspects of the Will Governed by the National


Law of the Decedent
1. Order of succession;
2. Amount of successional rights;
3. Intrinsic
validity
of
testamentary
provisions; and
4. Capacity to succeed.
Joint Will
1. A single testamentary instrument,
2. Which contains the wills of two or more
persons,
3. Jointly executed by them,
4. Either for their reciprocal benefit or for the
benefit of a third person.
Mutual Wills
1. Executed pursuant to an agreement
between two or more persons,
2. Jointly executed by them,
3. Either for their reciprocal benefit or for the
benefit of a third person.
Reciprocal Wills
1. Testators name each other as beneficiaries
in their own wills,
2. under similar testamentary plans
Note: A will that is both joint and mutual is one
executed jointly by two or more persons,
the provisions of which are reciprocal and
which shows on its face the devises are

made in consideration of each other.


Such is prohibited under Art. 819, CC.
Prohibition is applicable only to joint
wills executed by Filipinos.

64
VIII. Codicils and
Reference

Incorporation

by

Codicil (Arts. 825-826, CC)


1. It is a supplement or addition to a will,
2. made after the execution of a will,
3. and annexed to be taken as a part of the
will,
4. by which any disposition made in the original
will is explained, added to, or altered.
5. in order that it may be effective, it shall be
executed as in the case of a will.
Incorporation by Reference; Requisites (Art,
827, CC)
1. The document or paper referred to in the will
must be in existence at the time of the
execution of the will.
2. The will must clearly describe and identify
the same, stating among other things the
number of pages thereof.
3. It must be identified by clear and
satisfactory proof as the document or paper
referred to therein; and
4. It must be signed by the testator and the
witnesses on each and every page,
except in case of voluminous books of
account or inventories.

IX. Revocation
of
Wills
Testamentary Dispositions

and

Modes of Revocation (Art. 830, CC)


1. By implication of law; or
2. By the execution of a will, codicil or other
writing executed as provided in the case of
wills; or
3. By burning, tearing, canceling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by
some other person in his presence, and
by his express direction.
Note: The act contemplating revocation must be
done at any time before the death of the
testator. The right of revocation cannot be
waived or restricted. (Art. 828, CC)

SUCCESSION

CIVIL LAW REVIEWER

Chapter II. TESTAMENTARY SUCCESSION

Law Governing Revocation (Art. 829, CC)


Place of
Revocation
Philippines

Testators
Domicile
Philippines, or
some
other
country
Philippines

Foreign
Country
Outside
the
Philippines

Governing
Law
Philippine Law

Philippine Law
1. Law of the
place where
the will was
made; or
2. Law of the
place in which
the
testator
had
his
domicile at the
time
of
revocation

Doctrine of Dependent Relative Revocation


Molo vs. Molo, (1951): The rule that where
the act of destruction is connected with the
making of another will so as to fairly raise
the inference that the testator meant the
revocation of the old to depend upon the
efficacy of the new disposition intended to
be substituted, the revocation will be
conditional and dependent upon the
efficacy of the new disposition; and if for
any reason, the new will intended to be
made as a substitute is inoperative, the
revocation fails and the original will
remain in full force.

X.

Allowance and Disallowance of Wills

Probate
It is a Special Proceeding required to
establish the validity of a will and in order to
pass real or personal property (Art. 838, CC)

Mercado vs. Santos (1938): The probate of


a will by the probate court having jurisdiction
thereof is usually considered as conclusive
as to its due execution and validity, and is
also conclusive that the testator was of
sound and disposing mind at the time when
he executed the will, and was not acting
under duress, menace, fraud, or undue
influence, and that the will is genuine and
not a forgery.
General Rule: In probate proceedings, the
probate court cannot inquire into the intrinsic
validity of testamentary provisions. Only the

extrinsic validity of such wills may be


examined.
Exceptions:
a. Acain vs Diongson (1987): When the will
is intrinsically void, on its face such that
to rule on its formal validity would be a
futile exercise
b. Valera vs. Inserto, (1987): Claimants are
all heirs, and they consent, either,
expressly or impliedly, to the submission
of the question of intrinsic validity to the
court.
c. Pastor vs. CA, (1983): Probate court
may pass upon the title thereto, but such
determination is provisional and not
conclusive, and is subject to the final
decision in a separate action to resolve
title.
Matters to be Proved in Probate
1. Whether the instrument which is offered for
probate is the last will and testament of
the decedent
2. Whether the will has been executed in
accordance
with
the
formalities
prescribed by law
3. Whether the testator had testamentary
capacity at the time of execution of the will
Grounds for Disallowance of Will (Art. 839,
CC; Rule 76, Sec 9) (SUM IFF)
1. If the Signature of the testator was procured
by fraud;
2. If it was procured by Undue and improper
pressure and influence, on the part of the
beneficiary or some other person;
3. If the testator acted by Mistake or did not
intend that the instrument he signed should
be his will at the time affixing his signature
thereto;
4. If the testator was Insane or otherwise
mentally incapable of making a will at the
time of its execution;
5. If the Formalities required by law have not
been complied with; or
6. If it was executed through Force or under
duress, or the influence of fear, or threats.
Note: This list on the grounds for disallowance
of will is exclusive.
Revocation v. Disallowance
Revocation
Voluntary Act of the
Testator
With or Without Cause

Disallowance
Given by Judicial Decree
Must always be for a
legal cause

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CIVIL LAW REVIEWER

May be partial or total

Chapter II. TESTAMENTARY SUCCESSION


Always
total,
except
when the ground of fraud
of influence for example
affects
only
certain
portions of the will

XI. Substitution of Heirs


Definition of Substitution (Art. 857, CC)
1. It is the appointment of another heir,
2. So that he may enter into the inheritance in
default of the heir originally instituted.
Classes of Substitution
1. Simple or Common: The testator may
designate one or more persons to substitute
the heir/s instituted in case the heirs should:
a. die before him (predecease),
b. should not wish to accept the
inheritance (repudiation), or
c. should be incapacitated to accept the
inheritance (incapacitated). (Art. 859,
CC)
2. Brief or Compendious (Art. 860, CC)
a. Brief Two or more persons were
designated by the testator to substitute
for only one heir
b. Compendious One person is
designated to take the place of two or
more heirs
3. Reciprocal
If the heirs instituted in unequal shares
should be reciprocally substituted, the
substitute shall acquire the share of the
heir who dies, renounces, or is
incapacitated, unless it clearly appears
that the intention of the testator was
otherwise. If there is more than one
substitute, they shall have the same
share in the substitution as the
institution.
Example (only 1 substitute): If two heirs
are reciprocally substituted, then if one
of them dies before the testator dies,
renounces, or turns out to be
incapacitated, the other will get his
share, regardless of whether or not their
shares are equal.
Example (more than 1 substitute): A is
instituted to 1/3, B to 1/6, and C to . If
C dies before the testator, renounces or
turns out to be incapacitated, then the
other two will get his shares in the same
proportion as in the institution. A will get
twice as much as B (because his share
of 1/3 in the institution is twice the size
of Bs share of 1/6)

4. Fideicommissary
If the testator institutes an heir with an
obligation to preserve and to deliver to
another the property so inherited. The
heir instituted to such condition is called
the First Heir or the Fiduciary Heir; the
one to receive the property is the
fideicommissary of the second heir. (Art.
863, CC)
Requisites of a Fideicommisary Substitution
(Arts. 863-865, CC)
1. A Fiduciary or First Heir instituted is
entrusted with the obligation to preserve
and to transmit to a Fideicommissary
Substitute or Second Heir the whole or part
of the inheritance.
2. The substitution must not go beyond one
degree from the heir originally instituted.
3. The
Fiduciary
Heir
and
the
Fideicommissary are living at the time of
the death of the testator.
4. The fideicommissary substitution must be
expressly made.
5. The fideicommissary substitution is imposed
on the free portion of the estate and
never on the legitime
Note:
a. Palacios vs. Ramirez (1982): Degree
refers to degree of relationship.
b. PCIB vs. Escolin (1974): In the absence
of an obligation on the part of the first
heir to preserve the property for the
second heir, there is no fideicommissary
substitution.
Effects
of
predecease
of
heir/fiduciary
or
the
heir/fideicommisary

the
first
second

Legend:
T Testator
FH First Heir / Fiduciary
SH Second Heir / Fideicommissary
Substitute

Situation 1: If the following is the sequence


of death of the three parties: FH SH T,
who will inherit? The legal heirs. There is
no fideicommissary substitution because FH
and SH are not living at the time of the
testators death. (Art 863, CC)

Situation 2: T SH FH, who will inherit?


The SH and his heirs under Art. 866, CC.
This is because the SH passes his rights to
his own heirs when he dies before FH.

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CIVIL LAW REVIEWER

Chapter II. TESTAMENTARY SUCCESSION

Situation 3: FH T SH, who will inherit?


No specific provision in law, but SH inherits
because the T intended him to inherit.

XII. Legitimes
Definition of Legitime (Art. 886, CC)
1. It is that part of the testators property which
he cannot dispose of,
2. Because the law has reserved it for his
compulsory heirs.
Classes of Compulsory Heirs (Art. 887, CC)
1. Primary: Those who have precedence
over and exclude other compulsory heirs:
Legitimate Children and Legitimate
Descendants with respect to their
Legitimate Parents and Ascendants
2. Secondary: Those who succeed only in
the absence of the Primary compulsory
heirs:
a. Legitimate Parents and Legitimate
Ascendants, with respect to their
Legitimate Children and Descendants.
(They will inherit only in default of
legitimate
children
and
their
descendants)
b. Illegitimate Parents with respect to their
Illegitimate Children. (They will inherit
only in default of the illegitimate and
legitimate children and their respective
descendants).
Note
that
other
illegitimate ascendants are not included.
3. Concurring: Those who succeed together
with the primary or the secondary
compulsory heirs:
a. Widow or Widower / Surviving Spouse
(Legitimate)
b. Illegitimate Children and Illegitimate
Descendants
If the testator is a
LEGITIMATE CHILD:
1. LC and descendants
2. In default of No. 1, LP
and ascendants
3. SS
4. IC and descendants

If the testator is an
ILLEGITIMATE CHILD:
1. LC and descendants
2. ILC and descendants
3. In default of Nos. 1-2.
ILP only
4. SS

Legend:
LC Legitimate Children
ILC Illegitimate Children
SS Surviving Spouse
LP Legitimate Parents
ILP Illegitimate Parents

Specific Rules on Legitimes


1. Direct Descending Line
a. Rule of Preference between lines (Art
978 and 985, CC)
Those in the direct descending line
shall exclude those in the direct
ascending and collateral lines; and
Those in the direct ascending line
shall, in turn, exclude those in the
collateral line.
b. Rule of Proximity (Art 926, CC)
The relative nearest in degree
excludes the farther one
c. Right or representation ad infinitum in
case of predecease, incapacity, or
disinheritance (Art 972 and 992, CC)
For decedents who are Legitimate
Children, only the Legitimate
Descendants are entitled to right of
representation.
For decedents who are Illegitimate
Children, both the Legitimate and
the Illegitimate Descendants can
represent, only with respect to the
decedents illegitimate parents.
d. If all the Legitimate Children
repudiate their legitime, the next
generation of Legitimate Descendants
may succeed in their own right.
2. Direct Ascending Line
a. Rule of division between lines
The father and the mother shall
inherit equally if both living. One
succeeds to the entire estate of the
child if the other is dead. (Art. 986,
CC)
In default of the mother and the
father, the ascendants nearest in
degree will inherit. (Art. 987)
If there are more than one relative of
the same degree but of different
lines, one half will go to the paternal
ascendants and the other half to the
maternal ascendants. (Art. 987)
b. Rule of equal division
The relatives who are in the same
degree shall inherit in equal shares.
(Art 987)

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Chapter II. TESTAMENTARY SUCCESSION

Summary of Legitimes of Compulsory Heirs


(Asked in 82, 85, 86, 97, 99, 03, and 05)
Surviving
LC &
SS
Relatives
Descendants
1
LC alone
(divided by #
of children)
2
1 LC, SS

3
LC, SS
(divided by #
Same as
of children)
share of 1
LC
4
LC, ILC

1 LC, SS, ILC

2 or more LC, SS,


ILC

7
8
9
10
11

LP alone
LP, ILC
LP, SS
LP, SS, ILC
ILC alone

12

ILC, SS

13

SS alone

14
15
16

ILP alone
ILP, SS
Adopter, ILC, SS

(preferred)
Same as
share of 1
LC

(divided by #
of children)

ILC

LP &
Ascendants

68

share of 1
LC
share of 1
LC
share of 1
LC

1/8

(divided
by # of
children)
1/3
(divided
by # of
children)

1/3

ILP

SUCCESSION

CIVIL LAW REVIEWER

1/3

or if
marriage in
articulo
mortis

Steps in Determining the Legitime of


Compulsory Heirs
1. Determine the gross value of the estate at
the time of the death of the testator.
2. Determine all debts and charges which are
chargeable against the estate.
3. Determine the net value of the estate by
deducting all the debts and charges from the
gross value of the estate.
4. Collate or add the value of all donations inter
vivos to the net value of the estate.
5. Determine the amount of the legitime from
the total thus found.
6. Impute the value of all donations inter vivos
made to strangers against the disposable
free portion and restore it to the estate if the
donation is inofficious.
7. Distribute the residue of the estate in
accordance with the will of the testator.
Note: Please see the Illustrative Integrative
Problems in Chapter VI for the application of
these steps.

1/3

1/3

1/3

(adopter)

Remedy of a Compulsory Heir in case of


Impairment of Legitime
Extent and Nature of
Impairment
Total omission of a
compulsory heir who is a
direct
descendant
or
ascendant (preterition)
Testamentary dispositions
impairing or diminishing
the legitime
Partial impairment
Impairment by inofficious
donations

Remedy
Annulment of institution
and reduction of legacies
and devises (Art. 854, CC)
Reduction
of
the
disposition insofar as they
may be inofficious or
excessive (Art. 907, CC)
Completion of the legitime
(Art. 906, CC)
Collation reduction of
donations (Arts. 771 and
911, CC)

XIII. Preterition
(Asked in 88, 99, 00, 01 and 08)
A. Concept of Preterition (Art. 854, CC)
1. There must be a total omission of one,
some or all of the heir/s in the will.
2. 2. The omission must be that of a
compulsory heir.
3. 3. The compulsory heir omitted must be of
the direct line.
4. The omitted compulsory heir must be living
at the time of the testators death or must
at least have been conceived before the
testators death.
B. Effects of Preterition (Art. 854, CC)
1. The institution of the heir is annulled.
2. Devises and legacies shall remain valid as
long as they are not inofficious.
3. If the omitted compulsory heir should die
before the testator, the institution shall be
effective, without prejudice to the right of
representation.
Neri vs. Akutin (1941): When there are
no devises and legacies, preterition will
result in the annulment of the will and
give rise to intestate succession.

XIV. Reserva Troncal


(Asked in 79, 82, 85, and 87)
A. Concept of Reserva Troncal (Art. 891,
CC)
Situation
1. A descendant (prepositus) inherits or
acquires property from an ascendant
(source) by gratiutious title or from a brother
or sister
2. The same property is inherited by another
ascendant (reservista) or is otherwise
acquired by him by operation of law from the
said descendant (prepositus)
Then an obligation arises
The said ascendant (reservista) must
reserve the property for the benefit of the
relatives of the deceased descendant within
the third civil degree and who belong to the
line from which the said property came
(reservatorios).
___________
B. Requisites for Reserva Troncal
(Chua vs. CFI and Gonzales vs. CFI)
1. That the property was acquired by a
descendant (Prepositus) from an ascendant

Chapter II. TESTAMENTARY SUCCESSION

or from a brother or sister (Source) by


gratuitous title,
2. That the Prepositus died without an issue,
3. That the property is inherited by another
ascendant (Reservista) by operation of law,
and
rd
4. That there are relatives within the 3 degree
(Reservatarios) belonging to the line from
which said property came.
___________
C. Reserva Minima v. Reserva Maxima
Situation
1. The
prepositus
acquired
property
gratuitously from an ascendant or a brother
or sister
2. In his will, he institutes as his heir his
ascendant (who is also a compulsory heir)
such that the ascendant receives half of the
estate by operation of law as legitime and
the other half by testamentary disposition
Problem
Will the property acquired gratuitiously by
the prepositus from the source be treated as
acquired by the ascendant-heir by operation
of law (legitime) and therefore reservable or
by testamentary disposition?
Two Views
1. Reserva Maxima: The entire property will be
considered acquired as legitime and
therefore wholly reservable
2. Reserva Minima: One half is reservable, the
other half is not subject to reserva troncal
(Tolentino, p. 284)
___________
D. Extinguishment
of
the
Reserva
(Tolentino, p. 300-305) (LDD-RRP)
1. Loss of the reservable property
2. Death of the reservista
3. Death of all the relatives within the third
degree belonging to the line from which the
property came
4. Renunciation by the reservatorios
5. Registration of the reservable property
under the Torrens system as free
6. Prescription, when the reservista holds the
property adversely against the reservatorios,
as free from reservation

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Chapter II. TESTAMENTARY SUCCESSION

XV. Disinheritance
(Asked in 82, 84, 99, 00, and 08)
A.
1.
2.
3.

Definition of Disinheritance (Art. 915, CC)


It is the act by which the testator
For just cause
Deprives a compulsory heir of his right to the
legitime.

B. Requisites of a Valid Disinheritance


1. Heir disinherited must be designated by
name or in such a manner as to leave no

2.
3.
4.
5.

6.
7.

room for doubt as to who is intended to be


disinherited.
It must be for a cause designated by law.
It must be made in a valid will.
It must be made expressly, stating the cause
in the will itself.
The cause must be certain and true, and
must be proved by the interested heir if the
person should deny it.
It must be unconditional.
It must be total.

_________________________________________________________________________________
C. Summary of Causes of Disinheritance

1
2
3
4
5
6
7
8
9
10
11
12
13
14

15

Grounds for Disinheritance


Guilty or Convicted of Attempt Against the Life of the Testator, Spouse,
Ascendant or Descendant
Accused Testator or Decedent of Crime Punishable by Imprisonment of
6 years or more, and Found Groundless or False
Causes testator or decedent to Make a Will or Change one by Fraud,
Violence, Intimidation, or Undue Influence
Unjustified Refusal to Support Testator
Convicted of Adultery or Concubinage with Spouse of Testator or
Decedent
Maltreatment of testator by Word and Deed
Leading a Dishonorable or Disgraceful Life
Conviction of Crime which carries the penalty of Civil Interdiction
Abandonment of Children or Inducing Children to Live Corrupt and
Immoral Life or Against Attempted Virtue
Loss of Parental Authority
Attempt by One Parent Against the Life of the Other UNLESS there is
Reconciliation Between Parents
Spouse Has Given Cause for Legal Separation
Failure to Report Violent Death of Decedent Within One Month UNLESS
Authorities Have Already Taken Action
Force, Violence, Intimidation, or Undue Influence to Prevent Another
from Making a Will or Revoking One Already Made or Who Supplants or
Alters the Latters Will
Falsifies or Forges Supposed Will of the Decedent

919
*

920
*

921
*

1032
*

*
*

*
*

*
*

*
*
*
*
*

*
*
*
*
*
*

Art, 919, CC: Children and Descendants


Art. 920, CC: Parents and Ascendants
Art. 921, CC: Spouse
Art. 1032, CC: Unworthiness

D. Modes of Revocation
1. Reconciliation (Art 922, CC)
2. Subsequent institution of the disinherited
heir
3. Nullity of the will which contains the
disinheritance.
Note: The moment that testator uses one of the
acts of unworthiness as a cause for

disinheritance, he thereby submits it to the


rules
on
disinheritance.
Thus,
reconciliation renders the disinheritance
ineffective.

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Chapter II. TESTAMENTARY SUCCESSION

XVI. Legacies and Devises


Legacy and Devise Distinguished
LEGACY
A gift of personal
property given in a will
It is bequeathed

DEVISE
A gift of real property
given in a will
It is devised

Persons Charged With the Duty to Give


Legacies and Devises in a Will
1. Compulsory heir, provided, their legitimes
are not impaired (Art. 925, CC)
2. Voluntary heir
3. Legatee or devisee can be charged with
the duty of giving a sub-legacy or subdevisee but only to the extent of the value of
the legacy or devise given him (Art. 925,
CC)
4. The estate represented by the executor
or administrator, if no one is charged with
this duty to pay or deliver the legacy or
devise in the will
a. If there is an administration proceeding,
it constitutes a charge upon the estate.
b. If there is no administration proceeding,
it is a charge upon the heirs.

Validity and Effect of Legacy or Devise


Legacy or devise of a thing belonging to
another (Art. 930, CC)
STATUS OF PROPERTY
GIVEN BY
LEGACY/DEVISE
Testator
erroneously
believed that the property

EFFECT ON
THE LEGACY/
DEVISE
Void

belonged to him
The
thing
bequeathed
afterwards becomes his by
whatever title

Effective

Legacy or devise of thing already belonging


to the legatee or devisee

STATUS OF
PROPERTY GIVEN
BY LEGACY/DEVISE
The
thing
already
belongs to the legatee
or devisee at the time
of the execution of the
will (Art. 932, CC)
The thing is subject to
an encumbrance or
interest of another
person (Art. 932, CC)
Legatee or devisee
subsequently alienates
the thing (Art. 933,CC)
After alienating the
thing, the legatee or
devisee subsequently
reacquires
it
gratuitously (Art. 933,
CC)
After alienating the
thing, the legatee or
devisee acquires it by
onerous title (Art. 933,
CC)

EFFECT ON THE
LEGACY/DEVISE
Ineffective

Valid only as to the


interest
or
encumbrance
Ineffective

Ineffective

Legatee or devisee
can
demand
reimbursement from
the heir or estate

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Chapter II. TESTAMENTARY SUCCESSION

Different Objects of Legacies and Devises (Art. 934-944,CC)


1. Legacy of a thing pledged or mortgaged to secure a debt (Art 934, CC)
2. Legacy of credit, or remission or release of a debt (Art 935 CC)
3. Legacy to the debtor of thing pledged by him (Art 936, CC)
4. Legacy or devise to a creditor if the testator orders the payment of a debt (Art 939, CC)
5. Alternative legacies and devises (Art 940, CC)
6. Legacy of generic personal property or indeterminate real property (Art 941, CC)
7. Legacy of education (Art 944, CC)
8. Legacy of support (Art 944, CC)
OBJECTS OF LEGACY OR
DEVISE
Thing pledged or mortgaged to
secure a debt
Credit or remission or release of a
debt

EFFECT

Thing pledged by debtor


To a creditor

Order of payment of a debt

Alternative legacies and devises

Legacy of generic personal property


or indeterminate real property

Legacy of education

Legacy of support

Estate is obliged to pay the debt


Other charges pass to the legatee or devisee
Effective only as regards the credit or debt existing at the
time of the testators death
Legacy lapses if the testator later brings action against the
debtor
If generic, comprises all credits/debts existing at time of
execution of will
Only the pledge is extinguished; the debt remains
Shall not be applied to his credit unless the testator so
declares
If testator does not really owe the debt, the disposition is
void
If the order is to pay more that the debt, the excess is not
due
This is without prejudice to the payment of natural
obligations
The choice is with the heir, or the executor or administrator
If the heir, legatee or devisee dies the right passes to their
heirs
Once made, the choice is irrevocable
Legacy is valid even if there are no things of the same kind
in the estate
Devise of indeterminate real property valid only if there are
immovable property of the same kind in the estate
The choice belongs to the heir, legatee or devisee or the
executor or administrator
Lasts until the legatee is of age or beyond the age of
majority in order that he may finish some professional,
vocational or general course provided he pursues his
course diligently
If testator did not fix the amount it is fixed in accordance
with the social standing and circumstances of the legatee
and the value of the estate
Lasts during lifetime of legatee
If the testator used to give the legatee a sum of money for
support, give the same amount unless it is markedly
disproportionate to the estate
If testator did not fix the amount it is fixed in accordance
with the social standing and circumstances of the legatee
and the value of the estate

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CIVIL LAW REVIEWER

Chapter II. TESTAMENTARY SUCCESSION

Order of Payment In Case the Estate Is Not Sufficient to Cover All the Legacies and Devises

Application:
When the reduction is necessary to
preserve the legitime of compulsory
heirs from impairment whether there are
donations inter vivos or not; or
When, although, the legitime has been
preserved by the testator himself there are
donations inter vivos.

NOTE:
Art. 911, CC governs when there is a conflict
between compulsory heirs and the devisees
and legatees.

How Legacy or Devise Delivered (Art. 951,


CC)
1. The very thing bequeathed shall be
delivered and not its value
2. With all its accessions and accessories
3. In the condition in which it may be upon
the death of the testator
4. Legacies of money must be paid in cash
Ground for Revocation of Legacies and
Devises (Art. 957, CC) (TALO)
1. Testator Transforms the thing such that it
does not retain its original form or
denomination
2. Testator Alienates the thing by any title or
for any cause. Reacquisition of the thing by
the testator does not make the legacy or
devise valid, unless it is effected by right
of repurchase.
3. Thing is totally Lost during the lifetime or
after the death of the testator
4. Other causes: nullity of will, non-compliance
with suspensive condition, sale of the thing
to pay the debts of the deceased during the
settlement of his estate.

ART. 950
Order of Preference
(RPSESO)
Remuneratory legacy/devise
Preferential legacy/devise
Legacy for Support
Legacy for Education
Legacy/devise of Specific, determinate thing
which forms a part of the estate
All Others pro rata
Application:
When there are no compulsory heirs and the
entire estate is distributed by the testator as
legacies or devises; or
When there are compulsory heirs but their
legitime has already been provided for by the
testator and there are no donations inter
vivos.
NOTE:
Art. 950, CC governs when the question of
reduction is exclusively among legatees and
devisees themselves.

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ART. 911
Order of Preference
(LIPO)
Legitime of compulsory heirs
Donations Inter vivos
Preferential legacies or devises
All Other legacies or devises pro rata

Chapter III. INTESTATE SUCCESSION

Chapter III. Intestate Succession


I. Causes for Legal or Intestate Succession
II. The Intestate or Legal Heirs
III. Fundamental Underlying Principles in Legal
or Intestate Succession
IV. Relationship
V. The right of Representation
VI. Order of Legal or Intestate Succession
VII. Concurrence in Legal or Intestate Succession
VIII. Outline of Intestate Shares
IX. Order of Concurrence in the case of an
Adopted Child

The Civil Code does not state a definition of


legal or intestate succession. Art. 960 only
enumerates
the
instances
when
legal
succession takes place. This enumeration is not
exclusive, as there are other instances where
intestacy may occur, as listed below.

I.

Causes for
Succession

Legal

or

Intestate

1. If a person dies without a will (Art 960[1])


2. If a person dies with a void will (Art 960[1])
3. If a person dies with a will which has
subsequently lost its validity (Art 960[1])
4. When the will does not institute an heir (Art
960[2])
5. When the will does not dispose of all the
property belonging to the testator. Legal
succession shall take place only with
respect to the property which the testator
has not disposed (Art 960[2])
6. If the suspensive condition attached to the
institution of the heir does not happen or is
not fulfilled (Art 960[3])
7. If the heir dies before the testator (Art
960[3])
8. If the heir repudiates the inheritance, there
being no substitution, and no right of
accretion takes place (Art 960[3])
9. When the heir instituted is incapable of
succeeding, except in cases provided in
the Civil Code (Art 960[4])
10. Preterition Intestacy may be total or partial
depending on whether or not there are
legacies or devises (Balane, p.426)
11. Upon the expiration of a resolutory term
attached to the institution of heir (Balane,
p.426)
12. Upon fulfillment if a resolutory condition
attached to the institution of heir, rendering
the will ineffective (Balane, p.426)

Note: In all cases where there has been an


institution of heirs, follow the I.S.R.A.I order:
a. If the Institution fails, Substitution
occurs.
b. If there is no substitute, the right of
Representation applies in the direct
descending line to the legitime if the
vacancy is caused by predecease,
incapacity, or disinheritance.
c. The right of Accretion applies to the
free portion when the requisites in Art.
1016 are present.
d. If there is no substitute, and the right of
Representation or Accretion are not
proper,
the
rules
on
Intestate
succession shall apply.

II. The Intestate or Legal Heirs


1. Relatives
a. Legitimate ascendants
b. Illegitimate parents
c. Legitimate children
d. Illegitimate children
e. Surviving Spouse
f. Brothers, sisters, nephews and nieces
(BSNN)
g. Other collateral relatives
2. Surviving spouse
3. State (through escheat proceedings)

III. Fundamental Underlying Principles in


Legal or Intestate Succession
Rule of Preference between Lines
1. Those in the direct descending line shall
exclude those in the direct ascending and
collateral lines;
2. Those in the direct ascending line shall, in
turn, exclude those in the collateral line.
Rule of Proximity
The relative nearest in degree excludes the
farther one. (Art. 962, par.1 CC), saving the right
of representation when it properly takes place.
Rule of Equal Division
1. The relatives who are in the same degree
shall inherit in equal shares. (Arts. 962
par.2, 987 and 1006, CC)
2. Exceptions: (Balane pp.427-428)
a. the rule of preference of lines
b. the distinction between legitimate and
illegitimate filiation (the ratio under
present law is 2:1) (Art 983, in relation to
Article 895 as amended by Article 176
FC)

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CIVIL LAW REVIEWER

c.

the rule of division by line in the


ascending line Article 987 par.2)
d. the distinction between full-blood and
half-blood relationship among brothers
and sisters, as well as nephews and
nieces. (Art 1006 and 1008)
e. representation
Rule of Barrier between the legitimate family
and the illegitimate family (the iron-curtain
rule)
The illegitimate family cannot inherit by intestate
succession from the legitimate family and viceversa. (Art. 992, CC)
Rule of Double Share for full blood
collaterals
When full and half-blood brothers or sisters,
nephews or nieces, survive, the full blood shall
take a portion in the inheritance double that of
the half-blood. (Arts. 895 and 983, CC)
Note:
1. If one of the legitimate ascendants,
illegitimate parents, legitimate children or
illegitimate children survives, the brother,
sisters, nephews, and nieces (BSNN) are
excluded
2. If one of the legitimate ascendants,
illegitimate parents, legitimate children,
illegitimate children or surviving spouse
survives, the other collateral relatives and
the state are excluded.
3. If any of the heirs concur in legitimes, then
they also concur in intestacy.

Chapter III. INTESTATE SUCCESSION

V. The Right of Representation (Art. 970,


CC)
(Asked in 77, 82, 85, 88, 92, 97, and 07)

Number
of
generations
determines
proximity. (Art 963)
Each generation forms a degree. (Art 963)
A series of degrees forms a line. (Art 964
par.1)
A line may either be direct or collateral. (Art
964 par.1)
A direct line is that constituted by the series
of degrees among ascendants and
descendants (ascending and descending).
(Art 964 par.2)
A collateral line is that constituted by the
series of degrees among persons who are
not ascendants or descendants, but who
come from a common ancestor. (Art 964
par.3)
Full blood same father and mother. (Art
967 par.1)
Half-blood only one of either parent is the
same. (Art 967 par.2)

It is a right created by fiction of law;


By virtue of which the representative is
raised to the place and degree of the person
represented;
And acquires the rights which the latter
would have if he were living or if he would
have inherited.

Important Concepts
Representation is only allowed with respect
to inheritance conferred by law (i.e., as to
legitimes and intestate shares [ Art 923,
CC]),
in
cases
of
incapacity,
disinheritance, and predecease of an
heir.

There is no representation in voluntary


succession (by will). (Art 856, CC)

There is also no representation in


repudiation. Note, however that a
renouncer can represent, but cannot be
represented.

Representation takes place ad infinitum in


the direct descending line but never in the
direct ascending line. ( Art 972, CC)

In the collateral line, representation takes


place only in favor of the children of the
brothers or sisters (i.e., nephews and
nieces) whether of the full or half-blood (Art.
972, CC) and only if they concur with at
least one uncle or aunt. In this case, they
share in the inheritance per stirpes. If the
children survive alone, they inherit in their
own right and share in equal proportions or
per capita. (Art. 975)

Inheritance per stirpes


representative/s shall not
what the person they
inherit, if he were living
(Art.975, CC)

IV. Relationship (Arts. 963-969, CC)

In adoption, the legal filiation is personal and


exists only between the adopter and the
adopted. The adopted is deemed a
legitimate child of the adopter, but still
remains as an intestate heir of his natural
parents and other blood relatives. (Art. 189,
FC)

means that the


inherit more than
represent would
or could inherit.

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CIVIL LAW REVIEWER

The representative is called to the


succession by the law and not by the person
represented. The representative does not
succeed the person represented but the one
whom the person represented would have
succeeded. (Art. 971, CC)
General Rule
Grandchildren
inherit
from
grandparents
by
right
representation, if proper.

the
of

Exception
Whenever all the children repudiate,
the grandchildren inherit in their own
right because representation is not
proper. (Art 969, CC)

Right of representation in the collateral line


is only possible in INTESTATE succession.
It cannot take place in testamentary
succession.

In determining whether or not representation


is proper, apply the DOUBLE HEIRSHIP
TEST (Art. 973, CC): the representative

must be a legal heir of both the person he is


representing and the decedent.

Thus, illegitimate children can represent


illegitimate children parents in inheritance
from illegitimate grandparents. (*Rationale:
Iron-curtain rule under Art. 992, CC)

On the other hand, a legitimate child may


represent either a legitimate or illegitimate
parent in the inheritance of either a
legitimate or illegitimate grandparents. (Arts.
902, 989,990)

Representation in Adoption (Asked in 94,


04, and 07)
If the adopting parent should die before
the adopted child, the later cannot
represent the former in the inheritance
of the parents or ascendants of the
adopter. The adopted child is not related
to the deceased in that case, because
filiation created by fiction of law is
exclusively between the adopter and the
adopted. (TOLENTINO pp. 448-449)

VI. Order of Legal or Intestate Succession


(Asked in 77, 78, 97, 98, 99, 00, 06, and 08)
Decedent is a Legitimate Child
1
2
3

4
5

6
7

Decedent is an Illegitimate Child

Decedent is an Adopted Child

LC and
Legitimate descendants
LP and
Legitimate ascendants
ILC and
Illegitimate descendants

LC and
Legitimate descendants
ILC and
Illegitimate descendants
ILP

LC and
Legitimate descendants
ILC and Illegitimate descendants

SS
Legitimate siblings,
Nephews,
Nieces
Legitimate collateral relatives within
th
the 5 degree
State

SS
Illegitimate siblings,
Nephews,
Nieces
State

LP or ILP and
Legitimate ascendants,
Adoptive parents
SS
Siblings,
Nephews,
Nieces
State

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CIVIL LAW REVIEWER

Chapter III. INTESTATE SUCCESSION

VII. Concurrence in Legal or Intestate Succession

ILC
and Descendants
LP and
Legitimate ascendants
ILP
SS

Siblings,
Nephews
Nieces
th
Other collaterals within 5
degree
State

VIII.

Excludes
Ascendants,
Collaterals and
State
ILP,
Collaterals and
State
Collaterals and
State
Collaterals and
State
Collaterals other than
siblings, nephews and nieces

Excluded By
No one

Concurs With
SS and
ILC

No one

SS
LC and
LP
ILC and
SS
SS

All other collaterals and


State

LC, ILC, LP, ILP

LC, ILC, LP, ILP


Siblings
Nephews
Nieces
SS

Collateral more remote in


degree and
State
No one

LC, ILC, LP, ILP and


SS

Collaterals in the same


degree

Everyone

No one

Outline of Intestate Shares

(Asked in 76, 79, 92, 03, 04, 06, and 08)


1. Legitimate children only
a. Divide entire estate equally among all
legitimate children (Art. 979, CC)
b. Legitimate children include an adopted
child.
2. Legitimate children and Illegitimate
children
Divide entire estate such that each
illegitimate child gets of what a legitimate
child gets (Art. 983, CC and Art. 176, FC)
3. Legitimate children and surviving spouse
a. Divide entire estate equally between the
legitimate children and the surviving
spouse, the latter deemed as one child.
The same rule holds where there is only
one child.
b. Children as used in Art. 996 is
interpreted to include a situation where
there is only one child.
4. Legitimate children. Surviving spouse,
and Illegitimate children
Divide the entire estate such that the
surviving spouse is deemed one legitimate
child and each illegitimate child getting of
what the legitimate child gets (Art. 996, CC
and Art. 176, FC)

LC
LC and ILC
No one

5. Legitimate parents only


Divide the entire estate equally. (Art. 985,
CC)
6. Legitimate ascendants only (excluding
parents)
Divide the entire estate equally but with the
observance of the rule of division by line
(Art. 987, CC)
7. Legitimate parents and illegitimate
children
Legitimate parents get of the estate,
illegitimate children get the other (Art.
991,CC)
8. Legitimate parents and surviving spouse
Legitimate parents get of the estate; The
surviving spouse gets the other (Art.
997,CC)
9. Legitimate parents, surviving spouse and
illegitimate children
Legitimate parents get of the estate;
surviving spouse and the illegitimate child
each get each, the latter to share among
themselves if more than one. (Art. 1000,
CC)
10. Illegitimate children only
Divide the entire estate equally. (Art. 988,
CC)

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SUCCESSION

INTESTATE HEIRS
LC and
Legitimate descendants

11. Illegitimate
children
and
surviving
spouse
Illegitimate children get of the estate; the
surviving spouse gets the other . (Art. 998,
CC)

Chapter III. INTESTATE SUCCESSION

Divide the entire estate per capita, observing


the 2 is to 1 ratio. (Arts. 975 and 1008, CC)

12. Surviving spouse only


Entire estate goes to the surviving spouse.
(Art. 994/995, CC)

21. Other collaterals (Arts. 1009 and 1010)


a. Divide entire estate per capita.
th
b. Collateral relatives must be with the 5
degree of consanguinity.
c. Note: the nearer relative excludes the
more remote relatives.

13. Surviving spouse and illegitimate parents


Illegitimate parents get and the spouse
gets the other (by analogy with Art. 997,
CC)

22. State
If there are no other intestate heirs, the
State inherits the entire estate through
escheat proceedings. (Art. 1011, CC)

14. Surviving spouse and legitimate brothers


and sisters, nephews and nieces
Surviving spouse gets of the estate, while
the rest gets the other with the nephews
and nieces inheriting by representation if
proper. (Art. 1001, CC)
15. Surviving
spouse
and
illegitimate
brothers and sisters, nephews and
nieces
Surviving spouse gets of the estate while
the rest gets the other with the nephews
and nieces inheriting by representation, if
proper; Note that all the other relatives
should be illegitimate because of the ironcurtain rule. (Art. 994,CC)
16. Illegitimate parents only
Entire estate goes to the illegitimate parents.
(Art 993, CC)
17. Illegitimate parents and children of any
kind (whether legitimate or illegitimate
child)
Illegitimate parents are excluded and do not
inherit; For the rule on the respective shares
of the children, see numbers 1, 2 or 10,
whichever is applicable.
18. Legitimate brothers and sisters only
Divide the entire estate such that full-blood
brothers/sisters gets a share double the
amount of a half-blood brother or sister. (Art.
1004 and 1006, CC)
19. Legitimate brothers and sisters, nephews
and nieces
Divide the entire estate observing the 2 is to
1 ratio for full and half blood relationships
with respect to the brothers and sisters, with
the nephews and nieces inheriting by
representation, if proper. (Art. 1005 & 1008,
CC)
20. Nephews and nieces only

IX. Order of Concurrence in the Case of


an Adopted Child (Art, 190, FC)
(Asked in 79, 86, 04 and 07)
SURVIVORS
LC, ILC, SS
LP or ascendants or ILP
Adopter
LP or ascendants or ILP
or Adopter
SS
LP or ascendants
Adopter
ILC or descendants
LP or ascendants
Adopter
SS
ILC or descendants
Adopter alone
Collateral blood relatives

SHARE
As in the case of ordinary
intestate succession

1/3
1/3
1/3
Entire estate
As in the case of ordinary
intestate succession

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Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

Chapter IV. Provisions Common to


Testamentary and Intestate Succession
I. Accretion
II. Capacity to Succeed
III. Acceptance or Repudiation of Inheritance
IV. Collation

I.

There can only be accretion if there is an


institution of heirs with respect to specific
properties. (Art 1016, CC)

Among compulsory heirs, there can only be


accretion with respect to the free portion.
There can be no accretion with respect to
the legitimes. (Arts. 1021 and 1018, CC)

The heirs to whom the portion goes by the


right of accretion take it in the same
proportion that they inherit. (Art. 1019, CC)

The heirs to whom the inheritance accrues


shall succeed to all the rights and
obligations which the heir who renounced or
could not receive it would have had. (Art.
1020, CC)

In testamentary succession, when the right


of accretion does not take place, the vacant
portion of the instituted heirs, if no substitute
has been designated, shall pass to the legal
heirs of the testator, who shall receive it with
the same charges and obligations. (Art
1022, CC)

Accretion shall also take place among


devisees, legatees and usufructuaries under
the same conditions established for heirs.
(Art 1023, CC)

Accretion

A. Definition of Accretion (Art. 1015, CC)


It is a right by virtue of which, when two or more
persons are called to the same inheritance,
devise or legacy, the part assigned to one who
renounces or cannot receive his share or who
died before the testator is added or incorporated
to that of his co-heirs, co-devisees, or colegatees.

Accretion
happens
when
there
is
repudiation, incapacity, or predecease of
an heir.

It is the mechanism where the share of an


heir is increased by vacant shares vacated
by heirs who cannot inherit for various
reasons. (RATIONALE: the decedent
intended to give the property to nobody but
the co-heirs.)

____________________________________________________________________________________
Effect of Predecease, Incapacity, Disinheritance or Repudiation in Testamentary and Intestate
Succession

CAUSE OF VACANCY

Incapacity

Representa-tion
Intestate Succession

Accretion
Intestate Succession

Disinheritance

Representa-tion
Intestate Succession
Intestate Succession

INTESTATE
SUCCESSION
Representation
Intestate
Succession
Representation
Intestate
Succession
-

Accretion

Accretion

Predecease

Repudiation

TESTAMENTARY SUCCESSION
LEGITIME
FREE PORTION
Representa-tion
Accretion
Intestate Succession
Intestate Succession

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Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

II. Capacity to Succeed


A. Requisites for Capacity to Succeed by
Will or by Intestacy (Art. 1024 1025,
CC)
The heir, legatee or devisee must be living
or in existence at the moment the
succession opens; (Art 1025) and
He must not be incapacitated or disqualified
by law to succeed. (Art 1024, par.1)
B. Who Are Incapable of Succeeding

BASED ON UNDUE INFLUENCE OR


INTEREST (Art. 1027, CC) PIGRAP
Priest who heard the last confession of
the testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same
period;
Individuals,
associations
and
corporations not permitted by law to
inherit;
Guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the
guardianship have been approved, even
if the testator should die after the
approval thereof; except if the guardian
is his ascendant, descendant, brother,
sister, or spouse;
Relatives of the priest or minister of the
gospel within the fourth degree, the
church, order, chapter, community,
organization, or institution to which such
priest or minister may belong;
Attesting witness to the execution of a
will, the spouse, parents, or children, or
any one claiming under such witness,
spouse, parents, or children;
Physician, surgeon, nurse, health officer
or druggist who took care of the testator
during his last illness.
BASED ON MORALITY OR PUBLIC
POLICY (Arts. 739 and 1028, CC)
Those made in favor of a person with
whom the testator was guilty of adultery
or concubinage at the time of the
making of the will.
Those made in consideration of a crime
of which both the testator and the
beneficiary have been found guilty.
Those made in favor of a public officer
or his spouse, descendants and
ascendants, by reason of his public
office.

BASED ON ACTS OF UNWORTHINESS


(Art. 1032, CC)
The following are incapable of succeeding
by reason of unworthiness:
a. Parents who have abandoned their
children or induced their daughters to
lead a corrupt or immoral life, or
attempted against their virtue;
b. Any person who has been convicted of
an attempt against the life of the
testator,
his
or
her
spouse,
descendants, or ascendants;
c. Any person who has accused the
testator of a crime for which the law
prescribes imprisonment for six years or
more, if the accusation has been found
groundless;
d. Any heir of full age who, having
knowledge of the violent death of the
testator, should fail to report it to an
officer of the law within a month, unless
the authorities have already taken
action; this prohibition shall not apply to
cases wherein, according to law, there is
no obligation to make an accusation;
e. Any person convicted of adultery or
concubinage with the spouse of the
testator;
f. Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
g. Any person who by the same means
prevents another from making a will, or
from revoking one already made, or who
supplants, conceals, or alters the latter's
will;
h. Any person who falsifies or forges a
supposed will of the decedent.

C. Pardon of Acts of Unworthiness


EXPRESS
Made by the execution of
a document or any
writing in which the
decedent condones the
cause of incapacity
Cannot be revoked

IMPLIED
Effected
when
the
testator makes a will
instituting the unworthy
heir with knowledge of
the cause of incapacity
Revoked
when
the
testator revokes the will
or the institution

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III. Acceptance
Inheritance

Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

and

Repudiation

of

Characteristics (VIR) (Arts. 1041 1042, 1056,


CC)
1. Voluntary and free (Art 1041, CC)
2. Irrevocable except if there is vitiation of
consent or an unknown will appears (Art
1056, CC)
3. Retroactive (Art 1042, CC)
Requisites (Art. 1043, CC)
1. Certainty of death of the decedent
2. Certainty of the right to the inheritance
Acceptance vs. Repudiation
1. Acceptance involves the confirmation of
transmission of successional rights, while
repudiation renders such transmission
ineffective.
2. Repudiation is equivalent to an act of
disposition and alienation.
3. The publicity required for repudiation is
necessary for the protection of other heirs
and also of creditors.
Forms of Acceptance (Arts. 1049 1050,
CC)
1. Express Acceptance one made in a
public or private document. (Art. 1049 par.
1)
2. Tacit Acceptance one resulting from acts
by which the intention to accept is
necessarily implied or from acts which one
would have no right to do except in the
capacity of an heir.
Examples: (Art. 1050, CC)
a. when the heir sells, donates or assigns
his right
b. when the heir demands partition of the
inheritance
c. when the heir alienates some objects of
the inheritance, etc.
3. Implied acceptance - Within thirty days
after the court has issued an order for the
distribution of the estate in accordance with
the Rules of Court, the heirs, devisees and
legatees shall signify to the court having
jurisdiction whether they accept or repudiate
the inheritance; if they do not do so within
that time, they are deemed to have accepted
the inheritance. (Art 1057, CC)
Forms of Repudiation (Art. 1051, CC)
1. in a public instrument acknowledged before
a notary public; or

2. in an authentic document equivalent of an


indubitable writing or a writing whose
authenticity is admitted or proved; or
3. by petition presented to the court having
jurisdiction over the testamentary or
intestate proceeding
Heirs in Two Capacities (Art. 1055, CC)
1. If a person is called to the same inheritance
as an heir by will and by law and he
repudiates the inheritance in his capacity as
a testamentary heir, he will be considered to
have also repudiated the inheritance as a
legal heir.
2. If he repudiates it as a legal heir, without his
being a testamentary heir, he may still
accept it in the latter capacity.

IV. Collation (Arts. 1061-1077, CC)


(Asked in 77, 78, 79, and 93)
A. Concept of Collation
To collate is to bring back or to return to the
hereditary mass in fact or by fiction property
which came from the estate of the decedent,
during his lifetime by donation or other
gratuitous title but which the law considers
as an advance from the inheritance. (Art
1061, CC)
It is the act by virtue of which, the
compulsory heir who concurs with other
compulsory heirs in the inheritance bring
back to the common hereditary mass the
property which they may have received from
the testator so that a division may be
effected according to law and the will of the
testator.
In reducing inofficious donations, the last to
be donated should be the first to be
reduced.
RATIONALE
FOR
COLLATION:
If
donations inter vivos will not be collated,
then the rule on legitimes shall be
circumvented or disregarded.
B. Operations Related to Collation
Collation adding to the mass of the
hereditary estate the value of the donation
or gratuitous disposition.
Imputing or Charging crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion (if the donee is a stranger).
(BALANE p 522)
Reduction determining to what extent the
donation will remain and to what extent it is
excessive or inofficious.

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Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

Restitution returning or the act of


payment of the excess to the mass of
hereditary estate.

C. Persons Obliged to Collate


GENERAL RULE: Compulsory heirs
EXCEPTIONS:
when the testator should have so
expressly provided (Art. 1062, CC)
when the compulsory heir should have
repudiated his inheritance (Art 1062,
CC)
Grandchildren who survive with their uncles,
aunts, or first cousins and inherit by right of
representation (Art 1064, CC)
*Note: Grandchildren may inherit from their
grandparent in their own right, i.e., as heirs
next in degree, and not by right of
representation if their parent repudiates the
inheritance of the grandparent, as no living
person can be represented except in cases
of disinheritance and incapacity. In this
case, the grandchildren are not obliged to
bring to collation what their parent has
received gratuitously from their grandparent.
D. What to Collate
Any property or right received by gratuitous
title during the testators lifetime (Art 1061,
CC)
All that they may have received from the
decedent during his lifetime. (Art 1061, CC)
Expenses incurred by the parents in giving
their children a professional, vocational or
other career shall not be brought to collation
unless the parents so provide, or unless
they impair the legitime; but when their
collation is required, the sum which the child
would have spent if he had lived in the
house and company of his parents shall be
deducted therefrom. (Art 1068, CC)
Any sums paid by a parent in satisfaction of
the debts of his children, election expenses,
fines, and similar expenses shall be brought
to collation. (Art 1069, CC)
E. Properties Not Subject to Collation
Absolutely no collation
Expenses for support, education (only
elementary
and
secondary),
medical
attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts. (Art. 1067, CC)

Generally not imputable to legitime/


cannot
be
collected,
subject
to
exceptions

Expenses incurred by parents in giving


their children professional, vocational or
other career unless the parents so
provide, or unless they impair the
legitime. (Art. 1067, CC)
Wedding
gifts
by
parents
and
ascendants, consisting jewelry, clothing
and outfit, except when they exceed
1/10 of the sum disposable by will. (Art.
1070, CC)
Neither shall donations to the spouse of
the child be brought to collation; but if
they have been given by the parent to
the spouses jointly, the child shall be
obliged to bring to collation one-half of
the thing donated. (Art. 1066, CC)

Note: Parents are not obliged to bring to


collation in the inheritance of their
ascendants any property which may have
been donated by the latter to their children.
(Art 1065, CC)

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Chapter V. Partition and Distribution of


Estate
I.
II.
III.
IV.

The Concept of Partition


The Effect of Partition
Nullification of Partition
Important Periods in Partition

I.

Concept of Partition

Separate, Divide, Assign. Partition is the


separation, division and assignment of a
thing held in common among those to whom
it may belong. The thing itself or its value
may be divided. (Art. 1079, CC)
Owned in common. Before partition, the
whole estate of the decedent is owned in
common by the heirs. (Art 1078, CC)
Thing or value may be divided. (Art 1079)
Acts deemed partition. Every act which is
intended to put an end to indivision among
heirs and legatees or devisees is deemed a
parition, although it should purport to be a
sale, an exchange, a compromise, or any
other transaction. (Art 1082, CC)

A void partition may be valid if


1. the will was in fact a partition
2. the beneficiaries of the void will were legal
heirs

The titles of acquisition or ownership of each


property shall be delivered to the co-heir to
whom said property has been adjudicated.
(Art. 1089 CC)

Kinds of Partition
1. Judicial v. Extrajudicial Partition
a. Judicial Partition done by Court
pursuant to an Order of Distribution
which may or may not be based on a
project of partition.
b. Extra-judicial partition made by the
decedent himself by an act inter vivos or
by will or by a third person entrusted by
the decedent or by the heirs themselves.
(PARAS)
2. Partition Inter Vivos (Asked in 85)
It is one that merely allocates specific
items or pieces of property on the basis
of the pro-indiviso shares fixed by law or
given under the will to heirs or
successors. (Art. 1080, cc)
Who May Effect Partition
1. The Decedent, during his lifetime by an act
inter vivos or by will (Art.1080, CC)

Chapter V. PARTITION and DISTRIBUTION of ESTATE

2. The decedents heirs (Art.1083, CC)


3. A competent court (Art. 1083,CC)
4. A third person not an heir designated by the
decedent (Art.1081, CC)
Who Can Demand Partition
1. Compulsory heir
2. Voluntary heir upon fulfillment of condition if
any (Art 1084, CC)
3. Legatee or devisee
4. Any person who has acquired interest in the
estate
When Partition Cannot Be Demanded
1. When expressly Prohibited by the testator
for a period not exceeding 20 years (Art
1083, CC)
2. When the co-heirs Agreed that the estate
shall not be divided for a period not
exceeding 10 years, renewable for another
10 years
3. When Prohibited by law
4. When to partition the estate would render it
unserviceable for the use for which it is
intended
Prohibition to Partition
1. The prohibition to partition for a period not
exceeding 20 years can be imposed on the
legitime.
2. If the prohibition to the partition is for more
than 20 years, the excess is void.
3. Even if a prohibition is imposed, the heirs by
mutual agreement can still make the
partition.
Effects of Inclusion of Intruder in Partition
(Art 1108, CC)
1. Between a true heir and several mistaken
heirs partition is void.
2. Between several true heirs and a mistaken
heir transmission to mistaken heir is void
3. Through error or mistake, share of true
heir is allotted to mistaken heir partition
shall not be rescinded unless there is bad
faith or fraud on the part of the other
persons interested, but the latter shall be
proportionately obliged to pay the true heir
of his share. The partition with respect to the
mistaken heir is void. (Sempio-Dy)
Right of Redemption in Partition
Should any of the heirs sell his hereditary
rights to a stranger before the partition, any
or all of the co-heirs may be subrogated to
the rights of the purchaser by reimbursing
him for the price of the sale, provided they
do so within the period of one month from

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the time they were notified in writing of the


sale by the vendor (Art. 1088, CC)
Strangers those who are not heirs on the
succession.

Chapter V. PARTITION and DISTRIBUTION of ESTATE

II. Effects of Partition


Effect
A partition legally made confers upon each heir
the exclusive ownership of the property
adjudicated to him (Art 1091, CC)
Warranty
After the partition has been made, the coheirs shall be reciprocally bound to warrant
the title to, and the quality of, each property
adjudicated (Art. 1092 CC)
The reciprocal obligation of warranty
referred to in the preceding article shall be
proportionate
to
the
respective
hereditary shares of the co-heirs;
But if any one of them should be
insolvent, the other co-heirs shall be
liable for his part in the same proportion,
deducting the part corresponding to the
one who should be indemnified.
Those who pay for the insolvent heir
shall have a right of action against him
for reimbursement, should his financial
condition improve (Art. 1093 CC)
An action to enforce the warranty among the
co-heirs must be brought within ten years
from the date the right of action accrues.
(Art. 1094 CC)
If a credit should be assigned as collectible,
the co-heirs shall not be liable for the
subsequent insolvency of the debtor of the
estate, but only for his insolvency at the
time the partition is made. (Art 1095, CC)
The warranty of the solvency of the debtor
can only be enforced during the five years
following the partition.
Co-heirs do not warrant bad debts, if so
known to, and accepted by the distributee.
But if such debts are not assigned to a
co-heir, and should be collected, in
whole or in part, the amount collected
shall be distributed proportionately
among the heirs. (Art. 1095 CC)
End of Warranty
The obligation of warranty among co-heirs shall
cease in the ff cases:
The testator himself has made the partition
Unless it appears, or it may be
reasonably presumed, that his intention
was otherwise, but the legitime shall
always remain unimpaired.

When its has been so expressly stipulated in


the agreement of partition
Unless there has been bad faith
When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property. (Art. 1096, CC)

III. Nullification of Partition


(Asked in 90)
Causes for Rescission or Annulment
1. A partition may be rescinded or annulled for
the same causes as contracts. (Art 1097,
CC)
2. A partition, judicial or extra-judicial, may also
be rescinded on account of lesion, when any
one of the co-heirs received things whose
value is less by at least one-fourth, than the
share to which he is entitled, considering the
value of the things at the time they were
adjudicated (Art. 1098, CC)
This article applies only to cases of
partition among-coheirs
Lesion is the injury suffered in
consequence of inequality of situation by
one party who does not receive the full
equivalent for what she gives in a sale
or any commutative contract
3. The partition made by the testator cannot be
impugned on the ground of lesion, except
when the legitime of the compulsory heirs is
thereby prejudiced, or when it appears or
may be reasonably be presumed, that the
intention of the testator was otherwise. (Art.
1099, CC)
4. Preterition of a compulsory heir in the
partition (Art 1104, CC):
Partition shall not be rescinded unless
bad faith or fraud on the part of other
heirs is proved.
The culpable heirs shall share in the
damages of the prejudiced compulsory
heir proportionately.
5. A partition which includes a person believed
to be an heir, but who is not, shall be void
only with respect to such person. (Art.
1105 CC
___________

The action for rescission on account of


lesion shall prescribe after four years from
the time the partition was made. (Art. 1100,
CC)

The heir who is sued shall have the option of


indemnifying the plaintiff for the loss, or
consenting to a new partition

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Indemnity may be made:


By payment in cash or
By the delivery of a thing of the same
kind and quality as that awarded to the
plaintiff.
If a new partition is made, it shall affect
neither those who have not been prejudiced
nor those who have not received more than
their just share (Art. 1101, CC)
An heir who has alienated the whole or a
considerable part of the real property
adjudicated to him cannot maintain an action
for rescission on the ground of lesion, but he
shall have a right to be indemnified in cash
(Art. 1102, CC)
The omission of one or more objects or
securities of the inheritance shall not cause
the rescission of the partition on the ground
of lesion, but the partition shall be completed
by the distribution of the objects or securities
which have been omitted. (Art. 1103, CC)

Difference of Nullity from Rescission


Nullity is not the same as Rescission:
1. Nullity - the act is supposed to never have
existed
2. Rescission - the act is valid at the origin
though it afterwards became ineffective

Chapter V. PARTITION and DISTRIBUTION of ESTATE

IV. Important Periods in Partition


1 month or less
before making a
will
20 years
5 years from
delivery to the
State
1 month

5 years from the


time disqualified
person
took
possession
30 days from
issuance of order
of distribution
1 month form
written notice of
sale
10 years

5 years
partition

from

4 years
partition

form

Testator, if publicly known to be


insane, burden of proof is on the
one claiming validity of the will
Maximum period testator can
prohibit alienation of dispositions
To claim property escheated to
the State
To report knowledge of violent
death of decedent lest he be
considered unworthy
Action
for
declaration
of
incapacity & for recovery of the
inheritance, devise or legacy
Must
signify
acceptance/repudiation
otherwise, deemed accepted
Right to repurchase hereditary
rights sold to a stranger by a coheir
To
enforce
warranty
of
title/quality
of
property
adjudicated to co-heir from the
time right of action accrues
To enforce warranty of solvency
of debtor of the estate at the time
partition is made
Action for rescission of partition
on account of lesion

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Chapter VI. APPLICATION

Chapter VI. Application of the Important


Concepts
through
Sample
Computational Problems

property. How will you compute the proportional


increase in each heirs shares in order not to
exceed the total estate of Mickey (assuming no
legitimes were impaired)?

I.
II.
III.
IV.
II.
III.
IV.

Goofys
original share:
Donalds
original share:
Minnies
original share:

Institution of Heirs
Legitimes
Intestate Succession
The Effect of Partition
Nullification of Partition
Important Periods in Partition

1/4 of 12,000

3,000

1/4 of 12,000

3,000

Goofys increase = 4,000/10,000 x 2,000 = 800


Donalds increase = 3,000/10,000 x 2,000 = 600
Minnies increase = 3,000/10,000 x 2,000 = 600

Institution of Heirs

Total Deficiency = P2000


P10,000 + P2,000 = P12,000 (the total estate)

A. Excess Institution
Mickey died testate, leaving a total estate of
P12,000. According to his Will, Goofy gets ,
Donald gets 1/3 and Minnie gets of the
property. How will you compute the proportional
reduction from each heirs shares in order not to
exceed the total estate of Mickey (assuming no
legitime is impaired)?
Goofys original
share:
Donalds
original share:
Minnies original
share:

4,000

TOTAL: 10,000

DEFICIENCY
: 2,000

(Based on the lectures of Prof. Danilo L.


Concepcion)

I.

1/3 of 12,000

of 12,000

6,000

1/3 of 12,000

4,000

of 12,000

3,000
TOTAL:
13,000
EXCESS:
1,000

Goofys reduction = 6,000/13,000 x 1,000 =


461.53846
Donalds reduction = 4,000/13,000 x 1,000 =
307.69231
Minnies reduction = 3,000/13,000 x 1,000 =
230.76923
Total Deduction = P1000
P13,000 P1,000 = P12,000 (the total estate)
Goofy gets P6000 P461.53846
Donald gets P4,000 P307.69231
Minnie gets P3,000 P230.76923
___________
B. Deficiency in Institution
Mickey died testate, leaving a total estate of
P12,000. According to his Will, Goofy gets 1/3,
Donald gets and Minnie gets of the

Goofy gets P4000 + 800 = P 4,800


Donald gets P3,000 + 600 = P3, 600
Minnie gets P3,000 + 600 = P 3, 600

II. Legitimes
A. Legitimes: Concurrence of Legitimate
and Illegitimate Children
Homer died of heart attack. His wife, Marge,
predeceased him. He had only 1 legitimate child,
Bart, and 4 illegitimate children, Lisa, Maggie,
Wolverine and Cyclops. Homer has a total
estate of P120,000. How much is the legitime of
each heir?
The legitimate child should get of the estate
while the illegitimate children get of what the
legitimate child gets.
Bart - P60,000
Lisa - P30,000
Maggie - P30,000
Wolverine - P30,000
Cyclops - P30,000
But this would amount to a total of P180,000.
Thus, there must be a reduction of the shares of
the illegitimate children.
Reduction = excess / number of illegitimate
children
Reduction = (180,000 120,000) / 4 = 15,000
P30,000 (share) 15,000 (reduction) =
P15,000

86
SUCCESSION

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Chapter VI. APPLICATION

Reduction = (150,000 - 120,000)/2 =15,000


P30,000 (share) 15,000 (reduction)
=P15,000
Final Answer:
Mushroom = P60,000
Kupa = P30,000
Mario = P15,000
Luigi = P15,000

B. Legitimes: Concurrence of Spouse and


Legitimate Children

III. Intestate Succession


Anderson Silva died, leaving a total estate of
P120,000. He was survived by his wife,
Machida, and his three children: Chuck, Quinton,
and George. How much legitime is allotted by
law to each heir?
Legitimate Children get
The is divided into as many legitimate
children.
Wife gets an amount equal to the share of a
legitimate child.
Final Answer:
Chuck = P20,000
Quinton = P20,000
George = P20,000
Machida = P20,000
Free Portion = P40,000
___________

C. Legitimes: Concurrence of Spouse,


Legitimate and Illegitimate Children
Princess toadstool died, survived by her
husband, kupa, her legitimate child, mushroom,
and by her two illegitimate children, mario and
luigi. She has a total estate of p120,000. How
much legitime is allotted by law to each heir?
The legitimate child gets .
The wife gets of the share of the legitimate
child (because there is only one legitimate child)
The illegitimate children will each get of the
share of the legitimate child.

Mushroom P60,000
Kupa P30,000
Mario P30,000
Luigi P30,000

Applying the law in intestate succession, each


heirs will receive the ff:
Ultimate Warrior P35,000
Stone Cold P17,500
Undertaker P17,500
Sable P35,000
Since the total shares will exceed P70,000,
reduction is in order. The share of those who will
receive more than their legitimes must be
reduced. The spouses share should be reduced
first to the amount of her legitime (P17,500)
(note: the share of the others are equal to their
legitimes)
Further reductions shall be made since the
amount will still exceed the net estate. Following
the law of legitimes, namely that the legitime of
the legitimate child and the surviving spouse
shall be preferred over the illegitimate childrens
shares, the reduction will be suffered by the
illegitimate children.
Final Answer:
Ultimate Warrior P35,000
Stone Cold P8750
Undertaker P8750
Sable P17,500

IV. Accretion

But this will yield a total of p150,000. Thus the


shares of the illegitimate children must be
reduced.
Reduction = excess / number of
children

Hulk Hogan died intestate, with a total estate of


P70,000. His wife, Sable, his legitimate son,
Ultimate Warrior, and his two illegitimate
children, Stone Cold and Undertaker, survived
him. How will his estate be divided among these
heirs?

illegitimate

Goku died testate, leaving an estate of P720. In


his will, he instituted his sons to his entire estate.
His sons are Vegeta, Napa, Raditz and Freeza.
Vegeta, who had two children (Trunks and
Bulma), predeceased Goku. Napa, who hated

87
SUCCESSION

Final Answer:
Bart = P60,000
Lisa = P15,000
Maggie = P15,000
Wolverine = P15,000
Cyclops = P15,000
TOTAL = P120,000
___________

Chapter VI. APPLICATION

his fathers guts, repudiated his share in the


will.
Raditz, who likewise has two children
(Tenshenhan and Chowzu), was found to be
incapacitated to inherit from his father.
Lastly, Freeza, the youngest and most beloved
son of Goku, has a son, Magneato.
Determine Legitime and Free Portion:
Heir
Vegeta (predeceased)
Napa (repudiated)
Raditz (incapacitated)
Freeza

Will
180 = legitime:120
free: 60
180 (automatically
becomes free portion)
180 = legitime:120
free: 60
180 = legitime:120
free: 60

Determine amount received by heirs through


representation for the legitimes
Heir
Vegeta (predeceased)

Representation for
Legitime
Legitime = 120
Trunks: 60
Bulma: 60

Napa (repudiated)
Raditz (incapacitated)

Legitime = 120
Tenshenhan: 60
Chowzu: 60

Freeza

Accretion
- 60
-180
-60
+ (60 + 60 + 180) or +
300

COMPUTE:
Heir
Vegeta (predeceased)
Napa (repudiated)
Raditz (incapacitated)
Freeza

Determine the Legitimes:


Legitimate Children = of Total Estate
Therefore: Spiderman = P60,000
Robinhood = P60,000
Surviving Spouse = amount equal to Legitimate
Child
Therefore: Sandy = P60,000
Determine their Intestate Shares
Heir
Spiderman

Final Answer
Trunks: 60
Bulma: 60
0
Tenshenhan: 60
Chowzu: 60
480

Sandy

Determine Advances
Heir
Spiderman
Robinhood
Sandy

Advance
50,000
100,000

Compute:

Robinhood

Computation
Legitime: 60,000 50,000 = 10,000
Free Portion = 20,000
Legitime: 60,000 60,000 = 0
Free Portion: 20,000 20,000 = 0
(20,000 still unaccounted for)

Sandy

Since Robinhoods share has been exhausted


but there is still a deficiency of 20,000, this
20,000 will be deducted from the free portions
of Spiderman and Sandy Pro Rata.
Heir
Spiderman

Robinhood
Sandy

V. Collation
Sponge Bob died intestate on September 17,
1985. He left an estate of P90,000. He was
survived by his wife, Sandy, and his two children
Spiderman and Robinhood. During Mr. Bobs
lifetime, on January 1, 1980, he donated

Final Answer
80, 000
(60,000 = legitime)
80,000
(60,000 = legitime)
80,000
(60,000 = legitime)

Robinhood

Heir
Spiderman

Determine if there is accretion:


Heir
Vegeta (predeceased)
Napa (repudiated)
Raditz (incapacitated)
Freeza

P50,000 to Spiderman. In 1982, he made a


donation to Robinhood worth P100,000.
Compute for the shares of each heir.
Total Estate = Gross Estate Liabilities +
Donations Inter Vivos
Total Estate = 90,000 0 + 150,000 = P240,000

Computation
Legitime Left: 10,000
Free Portion Left =
20,000 10,000 = 10,000
0
Legitime: 60,000
Free Portion: 20,000 10,000 =
10,000

Therefore
Heir
Spiderman
Robinhood
Sandy

- end of Succession -

Final Answer
20,000
0
70,000

88
SUCCESSION

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

TABLE of CONTENTS

OBLIGATIONS
Table of Contents

Chapter II. Nature and Effect of Obligations93


I.
Kinds of Prestations ............................93
II.
Breach of Obligation............................94
III. Fortuitous Event (Force Majeure) .......96
IV. Remedies to Creditors ........................96
V. Usurious Transactions and Rules on
Interest .........................................................97
Chapter III. Different Kinds of Obligations ..98
I.
Pure and Conditional Obligations .......98
II.
Reciprocal Obligations ......................100
III. Obligations with a Period ..................100
IV. Alternative and Facultative Obligations
101
V. Joint and Solidary Obligations ..........103
Effects of Prejudicial and Beneficial Acts
(Art.1212) ...................................................105
VI. Divisible and Indivisible Obligations..106
VII.
Oblligations with a Penal Clause ..106
Chapter IV. Extinguishment of Obligations
.......................................................................107
I.
Payment or Performance ..................107
II.
Loss or Impossibility..........................109
III. Condonation or Remission of the Debt
109
IV. Confusion or Merger of Rights ..........110
V. Compensation ...................................110
VI. Novation ............................................111
Charts: Payment & Performance ................114

90
OBLIGATIONS

Chapter I. General Provisions.......................91


I.
Obligations ..........................................91
II.
Sources of Obligations ........................91

Prof. Solomon Lumba


Faculty Editor

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Writers

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Editors-in-Chief

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DESIGN & LAYOUT


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Volunteers

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LOGISTICS
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SECRETARIAT COMMITTEE
Jill Hernandez
Head
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Members

Chapter I. General Provisions


I.
II.

OBLIGATIONS
SOURCES OF OBLIGATIONS
A. LAW
B. CONTRACTS
C. QUASI-CONTRACTS
D. DELICTS
E. QUASI-DELICTS

Article 1156, Civil Code. An obligation is a juridical


necessity to give, to do or not to do.

I.

Obligations

Elements of an Obligation (De Leon, 2003)


1. ACTIVE SUBJECT (Obligee/Creditor): the
person who has the right or power to
demand the prestation.
2. PASSIVE SUBJECT (Obligor/Debtor): the
person bound to the perform the prestation.
3. PRESTATION
(Object):
the
conduct
required
to
be
observed
by
the
debtor/obligor (to give, to do or not to do).
4. VINCULUM JURIS (Juridical or Legal Tie;
Efficient Cause): that which binds or
connects the parties to the obligation.

II. Sources of Obligations


A. Law
Art. 1158, Civil Code. Obligations derived from law
are not presumed. Only those expressly determined in
this Code or in special laws are demandable, and
shall be regulated by the precepts of the law which
establishes them; and as to what has not been
foreseen, by the provisions of this Book.

B. Contracts
Art. 1159. Has the Force of Law Between
Parties. Obligations arising from contracts have
the force of law between the contracting parties
and should be complied with in good faith
C. Quasi-Contracts
Art. 2142, Civil Code. Certain lawful, voluntary and
unilateral acts give rise to the juridical relation of
quasi-contract to the end that no one shall be unjustly
enriched or benefited at the expense of another.
Lawful
Voluntary

Unilateral

Distinguished from crimes


Distinguished
from
quasi-delict,
which are based on fault and
negligence
Distinguished from contract which is
based on agreement

91
OBLIGATIONS

OBLIGATIONS & CONTRACTS TEAM

Chapter I. GENERAL PROVISIONS

OBLIGATIONS & CONTRACTS

CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS

Kinds of Quasi-Contracts
Negotiorum Gestio: officious or voluntary
management of the property or affairs of
another without the knowledge or consent of
the latter.
Solutio Indebiti: undue payment. The
juridical relation arises when:
o a thing is received without any right; and
o the thing delivered by mistake.
Others: See Arts. 2164-2175
(De Leon, 2003)
D. Delicts (Acts or omissions punished by law;
crimes)
Extent of Civil Liability
Governed by the Revised Penal Code and the
Civil Code, includes:
1. Restitution;
2. Reparation of damages caused; and
3. Indemnity for consequential damages (Art.
104, Revised Penal Code).
(Tolentino, 1987)
Enforcement of Civil Liability
1. Independent: Criminal and civil action
arising from the same offense may be
instituted separately.
2. Suspended: However, after criminal action
has been commenced prosecution for civil
action is suspended in whatever stage it
may be found, until final judgment in the
criminal proceeding is rendered;
3. Impliedly Instituted: Civil action is impliedly
instituted with the criminal action, when:
offended party expressly waives the civil
action or reserves the right to institute a
separate civil action; or
the law provides for an independent civil
action
Barredo v. Garcia, (1942): The same negligent act
may give rise to an action based on delict or quasidelict and the injured party is free to choose which
remedy to enforce.
Mendoza vs. Arrieta, (1979): If the civil action is
based on quasi-delict, there is no need to reserve the
right to file a civil action in the criminal case.

action (res judicata)


if judgment of acquittal
contained a declaration
that no negligence can
be attributed to the
accused and that the
fact from which civil
action might arise did
not exist

Quasi-Delict
Private,
against
individual
Criminal intent is not
necessary

Crimes
Public, against the State

Present in any act or


omission where fault or
negligence intervenes

An act can is only


punishable when there is
a law penalizing it

Gives rise to liability for


damages to the injured
party
Reparation,
compensation
or
indemnification of the
injury suffered by the
injured party

There are crimes from


which no civil liability
arises
Fine or imprisonment or
both, to public treasury

Preponderance
of
evidence
Can be compromised

Proof of guilt beyond


reasonable doubt
Can
never
be
compromised

No Effect
an independent civil
action is allowed by law
acquittal is due to lack
of
proof
beyond
reasonable doubt

Criminal
necessary
liability

intent
is
for criminal

Requisites of Liability (DWD)


1. Wrongful act or omission by fault or
negligence
2. Damage or injury proven by the person
claiming recovery
3. Direct causal connection between the fault
or negligence and the damage or injury
Liability for QuasiDelict (Art. 2180, NCC)
Primary, can be directly
sued by the injured
party

Liability for Crimes


(Art. 103, RPC)
Subsidiary,
employee
must first be convicted
and sentenced to pay
civil indemnity

All employers, whether


engaged
in
some
enterprise or not, are
liable
for
acts
of
employees,
even
household helpers
Avoid civil liability by
proving
exercise
of
diligence of a good
father of a family

Employer is only liable


when he is engaged in
some kind of business
or industry

Effect of Acquittal on Civil Actions


Barred
if based on the very
same facts on which
the criminal action
which
ended
in
acquittal was based
if the facts alleged in
the civil case has been
found to be nonexistent in the criminal

92

E. Quasi-Delicts (Voluntary acts or omissions


with fault or negligence causing damage to
another; not a crime nor a contract)

Subsidiary liability is
absolute and cannot be
avoided by any proof of
diligence

OBLIGATIONS

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Nature

and

I.
II.
III.
IV.
V.

KINDS OF PRESTATIONS
BREACH OF OBLIGATIONS
FORTUITOUS EVENTS
REMEDIES
USURIOUS TRANSACTIONS

I.

Kinds of Prestations

Effect

of

KINDS OF PRESTATION
1. TO GIVE: real obligation; to deliver either
(1) a specific or determinate thing, or (2) a
generic or indeterminate thing.
2. TO DO: positive personal obligation;
includes all kinds of work or services.
3. NOT
TO
DO:
negative
personal
obligation; to abstain from doing an act;
includes the obligation not to give.
Accessories: those joined to or included with
the principal for the latters completion, better
use, perfection or enjoyment

OBLIGATION TO GIVE
Specific Thing

Generic Thing

Particularly
designated or
physically
segregated
from all other of
the same class;
identified
by
individuality.

Object
is
designated only
by its class/
genus/ species.
Debtor can give
anything of the
same class as
long as it is of
the same kind.

Cannot
be
substituted.

Can
be
substituted by
any of the same
class and same
kind.

Personal Right
Vested before delivery
A right enforceable only
against the debtor
Right of the creditor to
demand from the debtor,
the fulfillment of a
prestation to give, to do
or not to do

Accessions: additions to or improvement upon


a thing, either naturally or artificially

To Give
Specific
Thing
(Asked
in 83,
84, 85
and
86)
To Give
Generic
Thing

Real Right
Vested after delivery
A
right
enforceable
against the world
Right pertaining to a
person over a specific
thing, without a passive
subject
individually
determined
against
whom such right may be
personally enforced

Duties of the Debtor


To preserve or take care of the thing
due
To deliver the thing itself
To deliver the fruits of the thing
To deliver the accessions and
accessories
To pay for damages in case of breach

Rights of the creditor


To compel specific performance
To recover damages in case of breach of
the obligation, exclusive or in addition to
specific performance
Entitlement to fruits and interests from the
time the obligation to deliver arises

To Do

Limited
Generic Thing
When
the
generic objects
are confined to
a
particular
class.

To deliver a thing of the quality intended


by the parties taking into consideration
the purpose of the obligation and other
circumstances
Creditor cannot demand a thing of
superior quality neither can the debtor
deliver a thing of inferior quality
To be liable for damages in case of
breach
To do it
To shoulder the cost of having someone
else do it
To undo what has been poorly done
To pay for damages in case of breach

To ask for performance of the obligation


To ask that the obligation be complied with
by a third person at the expense of the
debtor
To recover damages in case of breach of
obligation

To compel performance
To recover damages where personal
qualifications of the debtor are involved

93
OBLIGATIONS

Chapter II.
Obligations

Chapter II. NATURE and EFFECT of OBLIGATIONS

Not To
Do

Chapter II. NATURE and EFFECT of OBLIGATIONS

Not to do what should not be done


To shoulder the cost of undoing what
should not have been done
To pay for damages in case of breach

II. Breach of Obligation

To ask to undo what should not be done


To recover damages, where it would be
physically or legally impossible to undo
what has been undone, because of :
o the very nature of the act itself;
o rights acquired by third persons who
acted in good faith;
o when the effects of the acts prohibited
are definite in character and will not
cease even if the thing prohibited be
undone.

Effect of Contributory Negligence


Reduces or mitigates the recoverable
damages, UNLESS, the negligent act or
omission of the creditor is the
proximate cause of the event which led
to the damage or injury complained of.
In this case, he cannot recover.

Diligence Required (De Leon, 2003)


a. By stipulation: that agreed upon by
the parties.
b. By law: in the absence of
stipulation, that required by law in
the particular case.
c. Diligence of a good father of a
family: if both the contract and law
are silent.
Future Negligence: may be waived
except in cases where the nature of the
obligation or the public requires another
standard of care (i.e. extraordinary
diligence as for a common carrier)

A. Voluntary fraud, negligence, delay or


contravention of tenor of the obligation
B. Involuntary fortuitous event
TYPES OF BREACH
Substantial Breach
Total breach
Amounts
to
NonPerformance;
Basis
for
rescission
under Art. 1191 and
payment of damages

Slight or Casual Breach


Partial breach
Obligation is partially
performed;
Gives rise to liability for
damages only

1. FRAUD (DOLO): deliberate or intentional


evasion of the normal fulfillment of an
obligation (De Leon, 2003).

Future Fraud: Any waiver of action for


future fraud is void (Art. 1171).
Past Fraud: can be subject of a valid
waiver by the aggrieved party (De Leon,
2003).
Woodhouse vs. Halili, (1953): In order
that fraud may vitiate consent, it must be
the dolo causante and not merely the
dolo incidente, inducement to the
making of the contract. The false
representation was used by plaintiff to
get from defendant a bigger share of net
profits. This is just incidental to the
matter in agreement. Because despite
plaintiffs deceit, respondent would have
still entered into the contract.

2. NEGLIGENCE
or
FAULT
(CULPA):
omission of that diligence which is required
by the nature of the obligation and
corresponds with the circumstances of the
person, of the time and of the place (Art.
1173).

Fraud
There
is
deliberate
intention
to
cause
damage
Liability
cannot
be
mitigated
Waiver for future fraud
is void

Negligence
There is no deliberate
intention to cause damage
Liability may be mitigated
Waiver
for
future
negligence
may
be
allowed in certain cases:
gross can NEVER
be excused in
advance; amounts to
wanton attitude; rules
on fraud shall apply
simple may be
excused in certain
cases

Mandarin Villa Inc. v. CA (1996): Test of Negligence:


Did the defendant in doing the alleged negligent act
use the reasonable care and caution which an
ordinary and prudent person would have used in the
same situation? If not, then he is guilty of negligence.

94
OBLIGATIONS

CIVIL LAW REVIEWER

Chapter II. NATURE and EFFECT of OBLIGATIONS

Extent of Damages to be Awarded

Bad Faith
Debtor is liable for all
damages which can be
reasonably attributed to
the non-performance of
the obligation. Any waiver
or renunciation made in
anticipation
of
such
liability is null and void

Good Faith
Debtor is liable only for
the
natural
and
probable
consequences of the
breach of obligation and
fortuitous events

Culpa Contractual

Culpa Aquiliana Asked


in 83, 84, and 86)
Negligence is substantive
and independent

Negligence is merely
incidental
in
the
performance
of
an
obligation
There is always a preexisting
contractual
relation
The source of obligation
of defendant to pay
damages is the breach or
non-fulfillment of the
contract
Proof of the existence of
the contract and of its
breach or non-fulfillment
is sufficient prima facie to
warrant recovery
Proof of diligence in the
selection and supervision
of the employees is NOT
available as defense

There may or may not be


a pre-existing contractual
obligation
The source of obligation
is
the
defendants
negligence itself

The negligence of the


defendant
must
be
proved

Proof of diligence in the


selection and supervision
of the employee is a
defense

Culpa Criminal: wrong or negligence in


the commission of a crime

3. DELAY or DEFAULT (MORA): failure to


perform an obligation on time which
constitutes breach of the obligation (De
Leon, 2003).
Mora Solvendi: delay on the part of the
debtor to fulfill his obligation either to
give (Ex re) or to do (Ex persona),
(Asked in 83, 84, 85, and 86);
No Mora Solvendi in:
Negative Obligations because delay
is impossible (De Leon, 2003);
Natural
Obligations
(Tolentino,
1987).

Mora Solvendi
Requisites
1. Obligation must be
liquidated, due and
demandable
2. Non-performance by
the debtor on period
agreed upon
3. Demand, judicial or
extra-judicial, by the
creditor
Effects
1. The debtor is liable
for damages
2. The debtor is liable
even if the loss is due
to fortuitous events
3. For
determinate
objects, the debtor
shall bear the risk of
loss

Mora Accipiendi: delay on the part of


the creditor to accept the performance of
the obligation
Compensatio Morae: delay of the
parties in reciprocal obligations; effect:
as if there is no default.

Mora Accipiendi
Requisites
1. Debtor offers of
performance
2. Offer must be in
compliance with the
prestation
3. Creditor refuses the
performance
without just cause
Effects
1. The responsibility of
the
debtor
is
reduced to fraud
and
gross
negligence
2. The
debtor
is
exempted from risk
of loss of the thing
which is borne by
the creditor
3. The
expenses
incurred by the
debtor
for
the
preservation of the
thing after the mora
shall be chargeable
to the creditor
4. If the obligation
bears interest, the
debtor does not
have to pay from
the time of delay
5. The creditor is liable
for damages
6. The debtor may
relieve himself of
obligation
by
consigning the thing

Rules on Mora, Delay or Default


Unilateral Obligations
General Rule:
No demand no delay.
The mere expiration of
the period fixed by the
parties is not enough in
order that the debtor may
incur in delay.

Exceptions
1. the obligation or law
provides
2. time is of the
essence
3. demand useless
4. debtor
acknowledges that
he is in default

Reciprocal Obligations
General Rule:
Delay occurs from the
moment one party fulfills
his undertaking, while the
other does not comply or
is not ready to comply in
a proper manner with
what is incumbent upon
him.
No delay if neither party
performs his undertaking
(Art. 1169, par. 2).
Exception:
different dates for the
performance
of
respective obligations are
fixed by the parties

95
OBLIGATIONS

CIVIL LAW REVIEWER

4. CONTRAVENTION OF THE TENOR:


violation of the terms and conditions
stipulated in the obligation, which must not
be due to a fortuitous event or force majeure
(De Leon, 2003).
In any manner contravenes the
tenor means any illicit act, which
impairs the strict and faithful fulfillment
of the obligation, or every kind of
defective performance (Tolentino, 1987).

Chapter II. NATURE and EFFECT of OBLIGATIONS

2. The event must be unforeseeable or


inevitable
3. The event renders it impossible for debtor to
fulfill his obligation in a normal manner
4. The debtor must be free from any
participation in the aggravation of the injury
to the creditor (Tolentino, 1987; De Leon,
2003)
5. It must be the only and sole cause, not
merely a proximate cause.

III. Fortuitous Event (Force Majeure)


IV. Remedies to Creditors
Any event which could not be foreseen, or which
though foreseen are inevitable (Art. 1174)
A happening independent of the will of the
debtor and which makes the normal fulfillment of
the obligation impossible (De Leon, 2003).
A. Act of God: an accident, due directly or
exclusively to natural causes without human
intervention, which by no amount of
foresight, pains or care, reasonably to have
been expected, cold have been prevented.
B. Act of Man: force majeure is a superior or
irresistible force, which is essentially an act
of man; Includes unavoidable accidents,
even if there has been an intervention of
human element, provided that no fault or
negligence can be imputed to the debtor
(Asked in 81, 87 and 88)
Liability in case of Fortuitous Event
No person shall be responsible for fortuitous
events, UNLESS:
1. expressly specified by law (Arts. 552(2),
1942, 2147, 2148, 2159)
2. liability specified by stipulation
3. the nature of the obligations requires
assumption of risk (Art. 1174)
4. when debtor is guilty of concurrent or
contributory negligence
5. debtor has promised to deliver the same
thing to two or more persons who do not
have the same interests (Art. 1165 par. 3)
6. the thing is lost due to the obligors fraud,
negligence, delay or contravention of the
tenor of the obligation (Art. 1170)
7. the obligation to deliver a specific thing
arises from a crime (Art. 1268)
8. the object is a generic thing, i.e. the genus
never perishes
Requisites for Exemption
1. The event must be independent of the
debtors will (fraud or negligence)

Art. 1170, Civil Code. Those who in the performance


of their obligations are guilty of fraud, negligence, or
delay and those who in any manner contravene the
tenor thereof, are liable for damages.

Transmissibility of Rights
Art. 1178: Rights acquired by virtue of an
obligation are transmissible in character,
UNLESS prohibited:
1. by their very nature (i.e. personal
obligations)
2. by stipulation of the parties
3. by operation of law
(De Leon, 2003)
Primary Remedies
Arts. 1165-1168: PRESS
1. Specific Performance performance
by the debtor of the prestation itself
2. Substituted Performance someone
else performs or something else is
performed at the debtors expense
3. Equivalent Performance right to
claim damages (in either performance or
rescission)
4. Rescission right to rescind or cancel
the contract
5. Pursue the Leviable to attach the
properties of the debtor, except those
exempt by law from execution
Subsidiary Remedies of Creditor
General Rule: Contracts are binding only
between the parties thereto, and their heirs,
assignees, and the estate, UNLESS: Accion
Subrogatoria and Accion Pauliana
1. Accion Subrogatoria: right of creditor to
exercise all of the rights and bring all of the
actions which his debtor may have against
third persons; Novation by change of debtor
(Art. 1291, par.3).

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Requisites
a. Debtor to whom the right of action
properly pertains must be indebted to
the creditor
b. The debt is due and demandable
c. The creditor must be prejudiced by the
failure of the debtor to collect his own
rd
debt from 3 persons either through
malice or negligence
d. The debtors assets are insufficient
(debtor is insolvent)
e. The right of action is not purely personal
to the debtor
2. Accion Pauliana: Rescission, which
involves the right of the creditor to attack or
impugn by means of a rescissory action any
act of the debtor which is in fraud and to the
prejudice of his rights as creditor.

Siguan v. Lim, (1999): Petitioner cannot invoke the


credit of a different creditor to justify the rescission of
the subject deed of donation, because the only
creditor who may benefit from the rescission is the
creditor who brought the action; those who are
strangers to the action cannot benefit from its effects.

V. Usurious Transactions and Rules on


Interest
USURY: stipulation of interest rates higher than
the ceiling provided by law.
Note: Usury Law (Act No. 2655, as amended)
was repealed by Central Bank Circular No. 905,
Dec. 10, 1982.
INTEREST

Requisites: CASAL
a. There is a credit in favor of plaintiff
prior to alienation
b. The
debtor
has
performed
a
subsequent contract conveying a
patrimonial benefit to third persons
c. The creditor has no other legal remedy
to satisfy his claim
d. The debtors acts are fraudulent to the
prejudice of the creditor
e. The third person who received the
property is an accomplice in the fraud
Accion Subrogatoria
Not
necessary
that
creditors claim is prior to
the acquisition of the right
by the debtor
No need for fraudulent
intent
No period for prescription

Accion Pauliana
Credit must exist before
the fraudulent act

Fraudulent
intent
is
required if the contract
rescinded is onerous
Prescribes in 4 years
from the discovery of the
fraud

3. Accion Directa (Art. 1729, 1652, 1608,


1893): the right of lessor to go directly to a
sublessee for unpaid rents of the lessee
4. The right of laborers or persons who furnish
materials for a piece of work undertaken by
a contractor to go directly to the owner for
any unpaid claim due to the contractor
5. The right of vendor against every possessor
whose right is derived from the vendee
6. The right of a principal against a substitution
appropriated by an agent

Art. 1176, Civil Code. Receipt of the principal without


reservation as to the interest shall give rise to a
disputable presumption that the interest has been
paid. Receipt of the latter installment without
reservation as to prior installments shall likewise give
rise to a disputable presumption that such prior
installments have been paid.

Determination of Interests
Eastern Shipping Lines v. CA (1961)
Stage 1
For loan or forbearance NOT for loan or
of money, goods or forbearance of money,
credit, the interest rate goods or credit, the
is 12%
interest rate is 6%
a) Interest = interest
rate
stipulated
in
writing + 12% legal
interest,
computed
from date of judicial
demand
(filing
of
complaint)
b) If there is no
stipulated interest rate,
the interest rate is 12%
computed from date of
default or demand
(judicial
or
extrajudicial)

a) If date of demand is
certain, compute from
the date when demand
is made (judicial or
extra-judicial)

b) If date of demand is
NOT certain, compute
from the date of trial
court decision (judicial
demand)

Stage 2
Add 12% interest from finality of SC decision until
fully paid (equivalent to a forbearance of credit)

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Chapter III. DIFFERENT KINDS of OBLIGATIONS

Chapter III. Different Kinds of Obligations


I.
II.
III.
IV.

PURE AND CONDITIONAL OBLIGATIONS


RECIPROCAL OBLIGATIONS
OBLIGATIONS WITH A PERIOD
ALTERNATIVE AND FACULTATIVE
OBLIGATIONS
V. JOINT AND SOLIDARY OBLIGATIONS
VI. DIVISIBLE AND INDIVISIBLE OBLIGATIONS
VII. OBLIGATIONS WITH A PENAL CLAUSE

I.

Pure and Conditional Obligations

(Asked in 79, 88, 00, 03)


Pure Obligation (Art.1179): Effectivity or
extinguishment does not depend upon the
fulfillment or non-fulfillment of a condition or
upon the expiration of a term or period and
characterized by the quality of its being
IMMEDIATELY DEMANDABLE.
Conditional Obligation (Art.1181): Effectivity is
subject to the fulfillment or non-fulfillment of a
condition, which is characterized to be a
FUTURE and UNCERTAIN event.
Effects of Conditions
1. Suspensive Condition: Obligation shall
only be effective upon the fulfillment of the
condition (Art.1181). What is acquired by the
obligee upon the constitution of the
obligation is mere hope or expectancy, but is
protected by law.
Before Fulfillment
The demandability and
acquisition or effectivity
of the rights arising from
the
obligation
is
suspended.
Anything
paid by mistake during
such time may be
recovered.

After Fulfillment
The obligation arises or
becomes effective.
The obligor can be
compelled to comply with
what is incumbent upon
him.

Doctrine of Constructive Fulfillment


of Suspensive Conditions
Art. 1186: the condition shall be deemed
fulfilled when the obligor actually
prevented the obligee from complying
with the condition, and that such
prevention must have been voluntary or
willful in character.
Applicable to suspensive conditions
and not to resolutory conditions.
The article can have no application
to an external contingency which is
lawfully within the control of the
obligor.

The mere intention of the debtor to


prevent, without actually preventing
fulfillment
is
not
sufficient.
Constructive fulfillment will not hold
when the debtor acts pursuant to a
right.
There
is
constructive
fulfilment:
a. Intent of the obligor to prevent
fulfilment; and
b. Actual prevention of compliance

Principle
of
Retroactivity
in
Suspensive Conditions
Art.1187, par.1: once the condition is
fulfilled its effects must logically retroact
to the moment when the essential
elements, which gave birth to the
obligation have taken place. The
condition which is imposed is only
accidental, not an essential element of
the obligation.
Applied
only
to
consensual
contracts. No application to real
contracts which can only be
perfected by delivery.

To Give
If reciprocal, the fruits
and interests shall be
deemed to have been
mutually compensated
as a matter of justice and
convenience
(Art. 1187, par. 1)
If unilateral, the debtor
shall appropriate the
fruits
and
interests
received, unless from the
nature and circumstance
it should be inferred that
the intention of the
persons constituting the
same was different.

To Do/Not To Do
In obligations to do or not
to do, the court shall
determine the retroactive
effect of the condition
that has been complied
with.
(Art. 1187, par. 2)
The power of the court
includes
the
determination whether or
not there will be any
retroactive effects. This
rule shall likewise apply
in obligations with a
resolutory condition (Art.
1190 par. 3)

Preservation of Creditors Rights


Art.1188, par.1: The creditor may,
before the fulfillment of the condition,
bring the appropriate action for the
preservation of his rights. However, this
does not grant any preference of credit
but only allows the bringing of the proper
action for the preservation of the
creditors rights.

2. Resolutory Condition: Obligation becomes


demandable
immediately
after
its
establishment or constitution. The rights are
immediately vested to the creditor, but
always subject to the threat or danger of
extinction by the happening of the resolutory
condition (Tolentino, 1987).

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Before Fulfillment
Preservation of creditors
rights (Art. 1188, par. 1)
also
applies
to
obligations
with
a
resolutory condition

After Fulfillment
Whatever
may
have
been paid or delivered by
one or both of the parties
upon the constitution of
the obligation shall have
to be returned upon the
fulfillment
of
the
condition. There is no
return to the status quo.
However, when condition
is not fulfilled, rights are
consolidated and they
become
absolute
in
character

3. Potestative Condition
Exclusively
upon the
Creditors Will

Condition
obligation
valid

and
is

Exclusively
upon the
Debtors Will
in case of a
Suspensive
Condition
(Art. 1182)
Condition and
obligation are
void because to
allow
such
condition would
be equivalent to
sanctioning
obligations
which
are
illusory. It also
constitutes
a
direct
contravention of
the principle of
mutuality
of
contracts.

Exclusively
upon the
Debtors Will
in case of a
Resolutory
Condition
(Art. 1179, par
2)
Condition and
obligation
is
valid because in
such situation,
the position of
the debtor is
exactly
the
same as the
position of the
creditor when
the condition is
suspensive. It
does not render
the
obligation
illusory.

4. Casual Condition: The fulfillment of the


condition depends upon chance and/or upon
the will of a third person (Art. 1182)
5. Mixed Condition: The fulfillment of the
condition depends partly upon the will of a
party to the obligation and partly upon
chance and/or will of a third person
Osmena v. Rama: Defendant executed an
endorsement saying that shell pay her debt if the
house in which she lives is sold. Such condition
depended upon her exclusive will thus it is void.
Hermosa v. Longara: The condition that payment
should be made by Hermosa as soon as he receives
funds from the sale of his property in Spain is a mixed
condition. The condition implies that the obligor
already decided to sell the house and all that was

needed to make the obligation demandable is that the


sale be consummated and the price thereof remitted
to the islands. There were still other conditions that
had to concur to effect the sale, mainly that of the
presence of a buyer, ready, able and willing to
purchase the property under the conditions set by the
intestate.

6. Impossible Condition: conditions which


are impossible, contrary to good customs, or
public policy and those prohibited by law
shall annul the obligations which depend
upon them (Art. 1183).
If pre-existing obligation, only the
impossible condition is void, but not the
obligation.
If divisible obligation, that part which is
not affected by the impossible or
unlawful condition shall be valid.
If the condition is not to do an
impossible thing, it shall be considered
as not having been agreed upon (Art
1183, par. 2). Consequently, it becomes
pure and immediately demandable.
If attached to a simple or remuneratory
donation (Art. 727), or testamentary
disposition (Art. 873), condition is
considered as not imposed while the
obligation is valid.
7. Positive Condition: Obligation shall be
extinguished as soon as the time expires or
if it becomes indubitable that the event will
not take place (Art.1184)
8. Negative Condition: Obligation shall be
rendered effective from the moment the time
indicated has lapsed, or if it has become
evident that the event will not occur
(Art.1185)
When no period has been fixed, the
intention of the parties is controlling,
and the time shall be that which the
parties may have contemplated, taking
into account the nature of the obligation
(Art 1185, par. 2).

Effects
of
Loss,
Deterioration,
and
Improvement in Real Obligations Pending the
Condition (Art. 1189)

Loss

Without
Debtors
Fault/Act
Obligation
extinguished

With Debtors
Fault/Act
is

Obligation
is
converted into
one
of
indemnity
for
damages

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Improvement

Impairment to be
borne by the
creditor

Improvement at
the
debtors
expense,
the
debtor
shall
ONLY
have
usufructuary
rights

Creditor
may
choose
between
bringing
an
action
for
rescission
of
the obligation
OR bringing an
action
for
specific
performance
with damages
in either case.
Improvement
by the things
nature or by
time shall inure
to the benefit of
the creditor

Loss, defined: when the thing perishes; goes


out of commerce; disappears in such a way that
its existence is unknown or it cannot be
recovered

II. Reciprocal Obligations


Obligations which are established from same
cause, such that one obligation is correlative to
the other. It results in mutual relationship
between the creditor and the debtor. It is
performed
simultaneously,
so
that
the
performance of one is conditioned upon the
simultaneous fulfillment of the other.
Tacit Resolutory Condition: if one of the
parties fail to comply with what is incumbent
upon him, there is a right on the part of the other
to rescind the obligation. The power to rescind is
given to the injured party (Tolentino, 1987).
Rescission of Reciprocal Obligations (Art.
1191, CC)
Right to rescind is implied in reciprocal
obligations thus where one party fails to
comply with this obligation under a contact,
the other party has the right to either
demand the performance or ask for the
resolution of the contract.
Based on the breach of faith committed by
the person who is supposed to comply with
the obligation as compared to the rescission
referred to in Art. 1308 which involves the
damage or lesion, or injury to the economic
interest of a person.
Where both parties have committed a
breach of obligation, the liability will be

shouldered by the first infractor. This shall


be determined by the courts. However, if it
cannot be determined who was the first
infractor, the contract shall be deemed
extinguished and each shall bear his own
damages (Art.1192).
UP v. Delos Angeles (1970): The injured party may
extra-judicially rescind the contract on account of the
breach of the other party. However, this is without
prejudice to the option of the other party to resort to
the courts in order to determine if the rescission made
is valid, if not, the party who rescinded the contract
will be sentenced to pay damages.

Where the other party does not oppose the


extra-judicial declaration of rescission, such
declaration shall produce legal effect.
Effect is retroactive therefore invalidating
and unmaking the juridical tie between the
contracting parties, leaving things in their
status before the celebration of the contract.

III. Obligations with a Period


Period or Term (Asked in 84, 86 and 91):
Interval of time, which either suspends
demandability or produces extinguishment.
The period must be: future, certain, and possible
(Tolentino, 1987).

Fortuitous event does not interrupt the


running of the period. It only relieves the
contracting parties from the fulfillment of
their respective obligations during the
period.
Kinds of Period (Art. 1193):
1. Ex die - period with a suspensive effect.
Obligation becomes demandable after
the lapse of the period.
2. In diem - period with a resolutory effect.
Obligation is demandable at once but is
extinguished upon the lapse of the
period.

Art. 1180, Civil Code. When the debtor binds himself


to pay when his means permit him to do so, the
obligation shall be deemed to be one with a period,
subject to the provisions of Article 1197.

Term/Period and Condition Distinguished


Term/Period
Interval of time which is
future and certain

Condition
Fact or event which is
future and uncertain

Must necessarily come,


although it may not be
known when

May or may not happen

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OBLIGATIONS

Deterioration

Chapter III. DIFFERENT KINDS of OBLIGATIONS

CIVIL LAW REVIEWER


Exerts an influence upon
the very existence of the
obligation itself
Has retroactive effect

When it is left exclusively


to the will of the debtor,
the very existence of the
obligation is affected

Benefit of the Period


Presumption: Period in an obligation is
presumed to be established for the benefit of
both the creditor and debtor, UNLESS: If from
the tenor of the obligation or other
circumstances, it shall appear that the period
has been established in favor of either the
creditor or debtor (Art. 1196).
Period for the Benefit of either Creditor or
Debtor
Creditor
Creditor may demand
the
fulfillment
or
performance of the
obligation at any time
but the obligor cannot
compel him to accept
payment before the
expiration of the period

Debtor
Debtor may oppose any
premature demand on
the part of the oblige for
the performance of the
obligation, of if he so
desires,
he
may
renounce the benefit of
the period by performing
his obligation in advance

When court may fix period


Art. 1197: as general rule, the court is not
authorized to fix a period for the parties (De
Leon, 2003).
Araneta v. Phil. Sugar Estates, provides:
First, the Court shall determine:
If the obligation does not fix a period, but from
its nature and circumstances, it can be inferred
that a period was intended
If the period is void, such as when it depends
upon the will of the debtor
If the debtor binds himself when his means
permit him to do so.
Second, it must decide what period was probably
contemplated by the parties.

The only action that can be maintained


under Art. 1197 is the action to ask the
courts to fix the term within which the debtor
must comply with his obligation. The
fulfillment of the obligation itself cannot be
demanded until after the court has fixed the
period for compliance, therewith, and such
period has arrived.

Art. 1197 does not apply to contract of


services and to pure obligations.
The
court,
however,
to
prevent
unreasonable
interpretations
of
the
immediate demandability of pure obligations,
may fix a reasonable time in which the
debtor may pay.
(Tolentino, 1987)
When Debtor Loses Right to Use Period
Art.1198: I GIV A LA
1. Debtor becomes Insolvent, unless he gives
a guaranty or security for his debt, after
obligation is contracted
2. Debtor fails to furnish the Guaranties or
securities promised
3. Debtor by his own acts Impaired said
guaranties
or
securities
after
their
establishment, and when through a
fortuitous event they disappear, unless he
immediately gives new one equally
satisfactory
4. Debtor Violates any undertaking, in
consideration of which the creditor agreed to
the period
5. Debtor attempts to Abscond
6. By Law or stipulation
7. Parties stipulate an Acceleration Clause
In the cases provided, the obligation becomes
immediately due and demandable even if the
period has not yet expired. The obligation is thus
converted into a pure obligation (Tolentino,
1987).

IV. Alternative
Obligations

and

Facultative

Alternative Obligations
Several objects are due
May be complied with by
delivery of one of the
objects or by performance
of one of the prestations
which are alternatively
due
Choice may pertain to
debtor, creditor, or third
person

Facultative Obligations
Only one object is due
May be complied with by
the delivery of another
object
or
by
the
performance of another
prestation in substitution
of that which is due
Choice pertains only to
the debtor

Loss/impossibility of all
objects/prestations due to
fortuitous
event
shall
extinguish the obligation.
The loss/impossibility of
one of the things does not
extinguish the obligation.
Culpable loss of any of
the objects alternatively

Loss/impossibility of the
object/prestation due to
fortuitous
event
is
sufficient to extinguish
the obligation

Culpable loss
of the
object which the debtor

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OBLIGATIONS

Exerts an influence upon


the time of demandability
or extinguishment of an
obligation
No
retroactive
effect
unless
there
is
an
agreement to the contrary
When it is left exclusively
to the will of the debtor,
the existence of the
obligation is not affected

Chapter III. DIFFERENT KINDS of OBLIGATIONS

CIVIL LAW REVIEWER


may
deliver
in
substitution before the
substitution is effected
does not give rise to any
liability on the part of the
debtor

Effect of Loss of Objects


Art. 1204: Debtors Choice
All Lost

A. Alternative Obligations

Fortuitous
Event
Debtor
is
released from the
obligation

Several prestations are due but the performance


of one is sufficient (De Leon, 2003).
Right of Choice
Art. 1200: to the debtor, UNLESS:
1. when it is expressly granted to the
creditor
2. when it is expressly granted to a third
person
Limitations to the right of choice
1. impossible prestations
2. unlawful prestations
3. those which could not have been the
object of the obligation
4. only one prestation practicable (Art.
1202)
(De Leon, 2003)
When choice shall produce effect
Art. 1201: Choice shall produce no effect except
from the time it has been communicated. The
effect of the notice is to limit the obligation of the
object or prestation selected. Notice of selection
or choice may be in any form provided it is
sufficient to make the other party know that the
selection has been made. It can be:
o oral
o in writing
o tacit
o any other equivocal means
Choice of the debtor when communicated to
the creditor does not require the latters
concurrence.
When the choice is rendered impossible
through the creditors fault, the debtor may
bring an action to rescind the contract with
damages (Art.1203).
Obligation is converted into a simple
obligation when:
o When the person who has the right of
choice has communicated his choice
(Art. 1201)
o When only one prestation is practicable
(Art. 1202)

Some

Debtor to deliver
that which he
shall
choose
from among the
remainder

One
Remains

Debtor to deliver
that
which
remains

Debtors Fault
Creditor shall have
a right to indemnity
for damages based
on the value of the
last thing which
disappeared
or
service
which
become impossible
Debtor to deliver
that
which
the
creditor
shall
choose from among
the
remainder
without damages
Debtor to deliver
that which remains

Art. 1205: Creditors Choice


All Lost

Fortuitous
Event
Debtor
is
released from the
obligation

Some

Debtor to deliver
that which he
shall
choose
from among the
remainder

One
Remains

Creditor
may
claim
any
of
those subsisting
without a right to
damages
OR
price/value of the
thing lost with
right to damages

Debtors Fault
Creditor may claim
the price/value of
any of them with
indemnity
for
damages
creditor may claim
any
of
those
subsisting without a
right to damages
OR price/value of
the thing lost with
right to damages
Creditor may claim
the remaining thing
without a right to
damages OR the
price/value of the
thing lost with right
to damages

B. Facultative Obligation
Only one prestation has been agreed upon but
the debtor may render another in substitution
(De Leon, 2003)
Effect of Loss of Substitute
Before Substitution is
Made
If due to bad faith or
fraud of obligor: obligor
is liable

After Substitution is
Made
The
loss
or
deterioration of the
substitute on account
of the obligors delay,
negligence or fraud

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OBLIGATIONS

due before the choice is


made may give rise to
liability on the part of the
debtor

Chapter III. DIFFERENT KINDS of OBLIGATIONS

CIVIL LAW REVIEWER


obligor
is
liable
because
once
substitution is made,
the
obligation
is
converted into a simple
one with the substituted
thing as the object of
the obligation.

V. Joint and Solidary Obligations


A. Joint Obligations
One where a concurrence of several creditors,
or of several debtors, or of several creditors and
debtors, by virtue of which, each of the creditors
has a right to demand, and each of the debtors
is bound to render compliance with his
proportionate part of the prestation which
constitute the object of the obligation (Obligacion
Mancomunada).
Presumption: Obligation is presumed joint if
there is a concurrence of several creditors, of
several debtors, or of several creditors and
debtors in one and the same obligation (Art.
1207).
Exceptions:
1. When the obligation expressly stated that
there is solidarity
2. When the law requires the solidarity
3. When the nature of the obligation requires
solidarity
4. When the nature or condition is imposed
upon heirs or legatees, and the testament
expressly makes the charge or condition in
solidum
5. When the solidary responsibility is imputed
by a final judgment upon several defendants
Principal Effects of Joint Liability
1. Demand by one creditor upon the debtor,
produces the effects of default only with
respect to the creditor who demanded and
the debtor on whom the demand was made,
but not with respect to others
2. Interruption of prescription by the judicial
demand of one creditor upon a debtor, does
not benefit the other creditors nor interrupt
the prescription as to other debtors
3. Vices of each obligation arising from the
personal defect of a particular debtor or
creditor does not affect the obligation or right
of the others
4. Insolvency of a debtor does not increase the
responsibility of his co-debtors, nor does it

authorize a creditor to demand anything


from his co-debtors
5. Defense of res judicata is not extended from
one debtor to another
Joint Divisible Obligation
Art. 1208: Each creditor can demand only for the
payment of his proportionate share of the
credit, while each debtor can be liable only for
the payment of his proportionate share of the
debit
Presumption: Credit or debt shall be presumed
to be divided into as many equal shares as there
are creditors or debtors.
Joint creditor cannot act in representation of
the others, neither can a joint debtor be
compelled to answer for the liability of
others.
Joint Indivisible Obligation
Art. 1209: no creditor can act in representation
of the other; no debtor can be compelled to
answer for the liability of the others.
If there are two or more debtors, the
fulfillment of or compliance with the
obligation requires the concurrence of all the
debtors, although each for his own share
and for the enforcement of the obligation
In case of breach where one of the joint
debtors fails to comply with his undertaking,
the obligation can no longer be fulfilled or
performed. Consequently, it is converted
into one of indemnity for damages.
In case of insolvency of one of the
debtors, the others shall not be liable for his
shares. To hold otherwise would destroy the
joint character of the obligation.
Joint Divisible
Obligations
In case of breach of
obligation by one of the
debtors, damages due
must be borne by him
alone

Joint Indivisible
Obligations
In case of breach where
one of the joint debtors
fails to comply with his
undertaking,
the
obligation can no longer
be fulfilled or performed.
Thus action must be
converted into indemnity
for damages.

Plurality of Creditors: If one or some of


the creditors demands the prestation,
the debtor may legally refuse to deliver
to them, he can insist that all the
creditors together receive the thing, and
if any of them refuses to join the others,
the debtor may deposit the thing in court
by way of consignation (Tolentino,
1987).

103
OBLIGATIONS

If due to the negligence


of the obligor: obligor is
not liable

Chapter III. DIFFERENT KINDS of OBLIGATIONS

Chapter III. DIFFERENT KINDS of OBLIGATIONS

B. Solidary Obligation
An obligation where there is concurrence of
several creditors, or of several debtors, or of
several creditors and several debtors, by virtue
of which, each of the creditors has the right to
demand, and each of the debtors is bound to
render, entire compliance with the prestation
which constitutes the object of the obligation
(Obligacion Solidaria).
Indivisibility
Refers to the prestation
which
constitutes
the
object of the obligation

Plurality of subjects is not


required
In
case
of
breach,
obligation is converted into
indemnity for damages
because the indivisibility of
the obligation is terminated

Solidarity
Refers to the legal tie or
vinculum,
and
consequently to the
subjects or parties of
the obligation
Plurality of subjects is
indispensable
When there is liability
on the part of the
debtors because of the
breach, the solidarity
among the debtors
remains

The indivisibility of an obligation does not


necessarily give rise to solidarity. Nor does
solidarity itself imply indivisibility. (Art. 1211)

Kinds of Solidary Obligations


1. Active (solidarity among creditors): Each
creditor has the authority to claim and
enforce the rights of all, with the resulting
obligation of paying everyone of what
belongs to him.
Creation of a relationship of mutual
agency among co-creditors.

A solidary creditor cannot assign his


rights without the consent of the others.
(Art. 1213)
Each debtor may pay to any solidary
creditor, but if any demand, judicial or
extrajudicial, has been made by one of
them, payment must be made to him.
(Art. 1214)
2. Passive (solidarity among debtors): Each
debtor can be made to answer for the
others, with the right on the part of the
debtor-payor to recover from the others their
respective shares.
Creation of a relationship of mutual
guaranty among co-debtors
The total remission of the debt in favor
of a debtor releases all the debtors
All the debtors are liable for the loss of
the thing due, even if such loss is
caused by the fault of only one of them
and for delay, even if it is caused by just
one of them
The interruption of prescription as to
one debtor affects all the others; but the
renunciation
by
one
debtor
of
prescription already had does not
prejudice the others
3. Mixed: Solidarity among creditors and
debtors
Solidarity is not destroyed by the fact
that the obligation of each debtor is
subject to different conditions or periods.
The creditor can commence an action
against anyone of the debtors for the
compliance with the entire obligation
minus the portion or share which
corresponds to the debtor affected by
the condition or period.

____________________________________________________________________________________
Effects of Modes of Extinguishment
Assignment of
Rights in Solidary
Obligations
The
solidary
creditor
cannot
assign his right
because it is
predicated upon
mutual
confidence,
UNLESS, the (1)
the assignment is
to a co-creditor;
(2) assignment is
with consent of
co-creditor

Novation

Compensation &
Confusion

Remission

If prejudicial, the
solidary creditor
who effected the
novation
shall
reimburse
the
others
for
damages incurred
by them;
If beneficial and
secured by one,
he shall be liable
to the others for
the
share
(obligation
&
benefits)
which

If it is partial, the
rules
regarding
application
of
payment
shall
apply
(w/o)
prejudice to the
right
of
other
creditors
who
have not caused
the confusion or
compensation to
be reimbursed to
the extent that
their rights are
diminished
or

If
entire
obligation,
obligation is totally
extinguished.
If for the benefit
of one of the
debtors covering
his entire share,
he is completely
released from the
creditor/s.
If for the benefit
of one of the
debtors and it
covers only part

Loss or
Impossibility
If not debtors
fault,
the
obligation
is
extinguished
If thru debtors
OR
fortuitous
event after delay,
the obligation is
converted
into
indemnity
for
damages but the
solidary character
of the obligation
remains.

104
OBLIGATIONS

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Chapter III. DIFFERENT KINDS of OBLIGATIONS


affected
If
total,
the
obligation
is
extinguished,
what is left is the
ensuing
liability
for reimbursement

Effects of Prejudicial and Beneficial Acts


(Art.1212)
1. Each one of the solidary creditors may do
whatever may be useful or beneficial to the
others, but not anything which may be
prejudicial to the latter.
2. As far as the debtors are concerned, a
prejudicial act performed by a solidary
creditor is binding.
3. As between the solidary creditors, the
creditor who performed such act shall incur
the obligation of indemnifying the others for
damages.
Defenses Available to a Solidary Debtor (Art.
1222)
1. Those derived from the nature of the
obligation
2. Those personal to him
3. Those pertaining to his own share
4. Those personally belonging to other codebtors but only as regards that part of the
debt for which the latter are responsible.
Effects
Demand Upon a
Solidary Debtor
The
demand
made
against one of them shall
not be an obstacle to
those
which
may
subsequently be directed
against the others so
long as the debt has not
been fully collected. (Art.
1216)

Payment by a Debtor
Full payment made by
one of the solidary
debtors extinguishes the
obligation. (Art. 1217)

of his share, his


character as a
solidary debtor is
not affected.

105
OBLIGATIONS

corresponds
to
them
If by substituting
the debtor, the
solidary creditor
who effected the
novation is liable
for the acts of the
new debtor in
deficiency
or
damages
If by subrogating
a third person in
creditors rights,
the obligation is
not
in
reality
extinguished as
the
relation
between the other
creditors and the
debtor/s
is
maintained.

The creditor may proceed


against any one of the
solidary debtors or all
simultaneously
(Art.
1216)
A creditors right to
proceed
against
the
surety
exists
independently of his right
to proceed against the
principal

If two or more solidary


debtors offer to pay, the
creditor may choose
which offer to accept.
(Art. 1217)
The solidary debtor who
made the payment shall
have the right to claim
from his co-debtors the
share which corresponds
to them with interest,
UNLESS
barred
by
prescription or illegality.
(Art. 1218)

When a solidary debtor pays the entire


obligation, the resulting obligation of the codebtors to reimburse him becomes joint.
If payment was made before the debt
became due, no interest during the
intervening period may be demanded. (Art.
1217 par. 2)
When one of the solidary debtors cannot
reimburse his share to the debtor paying the
obligation due to insolvency, such share
shall be borne by all his co-debtors, in
proportion to the debt of each. (Art. 1217,
par. 2)

Inchausti v. Yulo, (1914): Debtors obligated


themselves solidarily, so creditor can bring its action
against any of them. Remission of any part o fthe
debt, made by the creditor in favor of one of the
solidary debtors, inures to the benefit of the rest of
them.

CIVIL LAW REVIEWER

Chapter III. DIFFERENT KINDS of OBLIGATIONS

VI. Divisible and Indivisible Obligations


A. Divisible Obligations

Purposes of Penalty
1.
2.

B. Indivisible Obligations
One which cannot be validly performed in parts
(Tolentino, 1987).
Divisibility/indivisibility
refers
to
the
performance of the prestation and not to the
thing which is the object thereof. The thing
may be divisible, yet the obligation may be
indivisible.
When the obligation has for its object the
execution of a certain number of days of
work, the accomplishment of work by
metrical units, or analogous things which by
their nature are susceptible of partial
performance, it shall be divisible (Art.1225,
par. 2).
When there is plurality of debtors and
creditors, the effect of divisibility/indivisibility
of the obligation depend upon whether the
obligation is joint or solidary.
A joint indivisible obligation give rise to
indemnity for damages from the time anyone
of the debtors does not comply with is
undertaking.
(Art. 1224)
Effect
Creditor cannot be compelled partially to receive
the prestation in which the obligation consists;
neither may the debtor be required to make the
partial payment (Art. 1248), UNLESS:
The obligation expressly stipulates the
contrary
The different prestations constituting the
objects of the obligation are subject to
different terms and conditions
The obligation is in part liquidated and in part
unliquidated

VII. Oblligations with a Penal Clause


Penal Clause: An accessory undertaking to
assume greater liability in case of breach (De
Leon, 2003). It is attached to an obligation in
order to ensure performance. The enforcement
of the penalty can be demanded by the creditor
only when the non-performance is due to the
fault or fraud of the debtor.

3.

Funcion coercitiva de garantia - to insure the


performance of the obligation.
Funcion liquidatoria - to liquidate the amount of
damages to be awarded to the injured party in
case of breach of the principal obligation
(compensatory).
Function estrictamente penal - to punish the
obligor in case of breach of the principal
obligation (punitive).

Effects of Penalty
1. The penalty shall substitute the indemnity for
damages and payment of interest in case of
non-compliance (Art. 1226), UNLESS:
a.
b.
c.

There is a stipulation to the contrary


The obligor refuses to pay the penalty
The obligor is guilty of fraud

2. Debtor cannot exempt himself from the


performance of the principal obligation by
paying the stipulated penalty unless this
right has been expressly reserved for him
(Art. 1227).
3. Creditor cannot demand the fulfillment of the
principal obligation and demanding the
satisfaction of the penalty at the same time
unless the right has been clearly granted to
him (Art. 1227). Tacit or implied grant is
admissible.
a.

b.

c.

If creditor has chosen fulfillment of the


principal obligation and performance thereof
become impossible without his fault, he may
still demand the satisfaction of the penalty.
If there was fault on the part of the debtor,
creditor may demand not only satisfaction of
penalty but also the payment of damages.
If creditor chooses to demand the
satisfaction of the penalty, he cannot
afterwards demand the fulfillment of the
obligation.

Proof of Actual Damage


Art. 1228: Proof of actual damages is not
necessary is applicable only to the general rule
stated in Art. 1226 and not to the exceptions.
The penalty is exactly identical with what is
known as liquidated damages in Art. 2226.
When Penalty may be Reduced
Art. 1229:
1.
2.
3.

If the principal obligation has been partly


complied with.
If the principal obligation has been irregularly
complied with.
If the penalty is iniquitous or unsconscionable
even if there has been no performance.

106
OBLIGATIONS

One which is susceptible of partial performance;


that is, the debtor can legally perform the
obligation by parts and the creditor cannot
demand a single performance of the entire
obligation (Tolentino, 1987).

If the principal obligation is void, penal


clause shall also be void. However, the
nullity of the penal clause does not carry
with it the nullity of the principal
obligation (Art.1230).

CIVIL LAW REVIEWER

Chapter
IV.
Obligations

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

Extinguishment

of

singular. There must be full and faithful compliance


with the terms of the contract.

B. Payment by Cession (Art. 1255)


PAYMENT OR PERFORMANCE
LOSS OF THE THING DUE OR IMPOSSIBILITY
OF PERFORMANCE
III. CONDONATION OR REMISSION OF THE
DEBT
IV. CONFUSION OR MERGER OF RIGHTS
V. COMPENSATION
VI. NOVATION

I.

Payment or Performance

Art. 1232, Civil Code. Payment means not only


delivery of money but also performance, in any
manner, of the obligation.

See Diagrams of Prof. Labitag at the end


section of Obligations.
SPECIAL FORMS OF PAYMENT
A. Application of Payment (Art. 1252)
Designation of the debt to which should be
applied a payment made by a debtor who owes
several debts to the same creditor
Rules on Application
1. Preferential right of debtor - debtor has the
right to select which of his debts he is
paying.
2. The debtor makes the designation at the
time he makes the payment
3. If not, the creditor makes the application, by
so stating in the receipt that he issues,
unless there is cause for invalidating the
contract.
4. If neither the creditor nor debtor exercises
the right to apply, or if the application is not
valid, the application is made by operation of
law.
5. If debt produces interest - payment not
deemed applied to the principal unless
interests are covered.
6. When no application can be inferred from
the circumstances of payment, it is applied
to: to the most onerous debt of the debtor; or
if debts due are of the same nature and
burden, to all the debts in proportion
7. Rules of application of payment may not be
invoked by a surety or solidary guarantor.
Reparations Commission vs. Universal Deep Sea
Fishing Corp. (1978): Rules on application of payment
cannot be made applicable to a person whose
obligation as a mere surety is both contingent and

Act whereby a debtor abandons all his property


to his creditors, so that the latter may apply the
proceeds (of its sale) to their credits.
C. Dation in payment (Art. 1245)
Delivery and transmission of ownership of a
thing by the debtor to the creditor as an
accepted equivalent of the performance of the
obligation (dacion en pago).
Dation in payment

Payment by cession

In favor of only one


creditor
Payment extinguishes the
obligation to the extent of
the value of the thing
delivered,
unless
the
parties agree that the
obligation
be
totally
extinguished
Transfer of ownership of
thing alienated to creditor

There
are
various
creditors
Extinguishes
credits
only up to the extent of
proceeds from sale of
assigned
property,
unless
otherwise
agreed upon

Not necessarily in state of


financial difficulty
Assignment of only some
specific thing

Only possession and


administration
with
authorization to convert
property to cash with
which the debts shall
be paid
Assignment
presupposes
insolvency of debtor.
Assignment involves all
the property of the
debtor.

D. Tender of payment and consignation


1. Tender of payment: Manifestation made by
debtor to creditor of his desire to comply
with his obligation, with offer of immediate
performance
Preparatory act to consignation
Extrajudicial in character
2. Consignation: Deposit of the object of
obligation in a competent court in
accordance to the rules prescribed by law,
whenever the creditor unjustly refuses
payment or because of some circumstances
which render direct payment to the creditor
impossible or inadvisable.
Principal act which constitutes a form of
payment.
Judicial in character.

107
OBLIGATIONS

I.
II.

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

When Tender and Refusal Not Required (Art.


1259)
1. Creditor is absent or unknown, or does not
appear at the place of payment
2. Creditor is incapacitated to receive the thing
due at time of payment
3. Without just cause, creditor refuses to give
receipt
4. Two or more persons claim the same right to
collect
5. Title of the obligation has been lost
Effects of Withdrawal by Debtor
Arts. 1260- 1261
1. Before approval of the court - Obligation
remains in force.

2. After approval of the court or acceptance by


the creditor, with the consent of the latter Obligation remains in force, but guarantors
and co-debtors are liberated. Preference of
the creditor over the thing is lost.
3. After approval of the court or acceptance by
the creditor, and without creditors consent Obligation subsists, without change in the
liability of guarantors and co-debtors, or the
creditors right of preference.
Art. 1259, Civil Code. Expenses of consignation,
when properly made, shall be charged against the
creditor.

Requisites and Effects


Application of
Payment
Requisites
1. Plurality of
debts
2. Debts are of
the same kind
3. Debts are owed
to the same
creditor and by
the same
debtor
4. All debts must
be due
5. Payment made
is not sufficient
to cover all
debts
Effects
Payment of debt
designated as to
corresponding
amount

Cession

Dation

Tender and Consignation

Requisites
1. Plurality of debts
2. Plurality of
creditors
3. Partial insolvency
of the debtor
4. Abandonment of
the totality of the
debtors
properties for the
benefit of the
creditors
5. Acceptance by
the creditors

Requisites
1. Should not be
prejudicial to
other creditors
2. Should not
constitute a
pactum
commissorium

Requisites
1. There is a debt due
2. consignation is made because
of some legal cause
3. previous notice of consignation
was given to those persons
interested in the performance
of the obligation
4. amount or thing due was
placed at the disposal of the
court
5. after the consignation has been
made, the persons interested
were notified thereof

Effects
Assignment liberates
debtor up to the
amount of the net
proceeds of the sale
of his assets
Assignment does not
vets title to the
property
in
the
creditors,
who
are
only
authorized to sell it.

Effects
Extinguishment
of
debt from as an
equivalent of the
performance of the
obligation

Effects
If accepted by the creditor or
declared properly made by the
Court:
1. Debtor is released in same
manner as if he had performed
the obligation at the time of
consignation
2. Accrual of interest is
suspended from the moment of
consignation.
3. Deterioration or loss of the
thing or amount consigned,
occurring without the fault of
debtor, must be borne by
creditor from the moment of
deposit
4. Any increment or increase in
the value of the thing after
consignation inures to the
benefit of the creditor

108
OBLIGATIONS

CIVIL LAW REVIEWER

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

II. Loss or Impossibility


(Asked in 83, 84, 85, and 94)
A. Loss
A thing is lost when it perishes, goes out of
commerce or disappears in such a way that its
existence is unknown or it cannot be recovered
(Art. 1189, par. 2)

Loss of the thing when in possession of the


debtor: Loss was due to the debtors fault.
Burden of explaining the loss of the thing falls
upon him, UNLESS, due to a natural calamity:
earthquake, flood, storm, etc.
Subjective impossibility: Where there is no physical
or legal loss, but the thing belongs to another, the
performance by the debtor becomes impossible. The
debtor must indemnify the creditor for damages.

Effects of Loss
Obligation to Deliver a
Specific Thing
Extinguishment of the
obligation if the thing was
destroyed w/o fault of the
debtor and before he has
incurred delay.

Obligation to Deliver a
Generic Thing
Loss of a generic thing
does not extinguish an
obligation,
UNLESS,
Delimited
generic
things: kind or class is
limited itself, and the
whole class perishes

rd

Action against 3 persons - creditor shall have


all the rights of action the debtor may have
rd
against 3 persons by reason of the loss.
Presumption: The loss was due to the debtors
fault, UNLESS:
1. Law provides that the debtor shall be liable
even if the loss is due to fortuitous events
(Arts. 1942, 1979, 2147, 2159)
2. Obligor is made liable by express stipulation
3. Nature of the obligation requires an
assumption of risk
4. Fault or negligence concurs with the
fortuitous event
5. Loss occurs after delay
6. Debtor has promised to deliver the same
thing to two or more different parties
7. Obligation arises from a criminal act
8. Borrower in commodatum: saves his own
things and not the thing of the creditor
during a fortuitous event
In Reciprocal Obligations
Extinguishment of the obligation due to loss of
the thing or impossibility of performance affects
both the creditor and debtor; the entire juridical
relation is extinguished.
Partial loss
Art. 1264: Partial loss due to a fortuitous event
does not extinguish the obligation; thing due
shall be delivered in its present condition,
without any liability on the part of the debtor,
UNLESS, the obligation is extinguished when
the part lost was of such extent as to make the
thing useless.

B. Impossibility of Performance (Arts. 12661267, CC)


When prestation becomes legally or physically
impossible (by fortuitous event or force
majeure), the debtor is released.Impossibility
must have occurred without fault of debtor, and
after the obligation has been constituted.
PARTIAL IMPOSSIBILITY
1. Courts shall determine whether it is so
important as to extinguish the obligation.
2. If debtor has performed part of the obligation
when impossibility occurred, creditor must
pay the part done as long as he benefits
from it.
3. If debtor received full payment from creditor,
he
must
return
excess
amount
corresponding to part which was impossible
to perform.
Doctrine of Unforeseen Events
When the service has become so difficult as to
be manifestly beyond the contemplation of all
the parties, the obligor may be released in whole
or in part (De Leon, 2003).
Requisites:
1. Event could not have been foreseen at the
time of the constitution of the contract.
2. Event makes performance extremely difficult
but not impossible.
3. Event not due to any act of the parties.
4. Contract is for future prestation.

III. Condonation or Remission of the


Debt
CONDONATION: An act of liberality, by virtue of
which, without receiving any equivalent, creditor
renounces the enforcement of the obligation.
The obligation is extinguished either in whole or
in such part of the same which to remission
refers.

109
OBLIGATIONS

CIVIL LAW REVIEWER

Requisites
1. Debt must be existing and demandable
2. Renunciation must be gratuitous; without
any consideration
3. Debtor must accept the remission
Effect
Art. 1273: Renunciation of the principal debt
shall extinguish the accessory obligations, but
remission of the latter leaves the principal
obligation in force.
Presumptions
Arts. 1271, 1272, 1274:
Whenever the private document in which the
debt is found in the possession of the
debtor, it shall be presumed that the creditor
delivered it voluntarily, unless contrary is
proved.
Delivery of a private document evidencing
credit, made voluntarily by the creditor to the
debtor, implies the renunciation of the action
of creditor against the latter.
Kinds
1. As to form (Art. 1270)
Express: made formally; in accordance
with forms of ordinary donations
Implied: inferred from the act of the
parties
2. As to extent
Total: entire obligation
Partial: may refer only to amount of
indebtedness, or to an accessory
obligation, or to some other aspect of
the obligation
3. As to constitution
Inter vivos: effective during the lifetime
of the creditor
Mortis causa: effective upon death of the
creditor; must be contained in a will or
testament

IV. Confusion or Merger of Rights


CONFUSION: The meeting in one person of the
qualities of creditor and debtor of the same
obligation.
Requisites
1. It should take place between principal debtor
and creditor
2. It must be complete and definite- Parties
must meet all the qualities of creditor and
debtor in the obligation/ in the part affected.

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

Effects
Arts. 1275- 1277:
1. The obligation is extinguished from the time
the characters of the debtor and creditor are
merged in the same person.
2. In joint obligations, confusion does not
extinguish the obligation except as regards
the corresponding share of the creditor or
debtor in whom the two characters concur.
3. In solidary obligations, confusion in one of
the solidary debtors extinguishes the entire
obligation.
4. Obligation is not extinguished when
confusion takes place in the person of
subsidiary debtor (e.g. guarantor), but
merger in the person of the principal debtor
shall benefit the former.

V. Compensation
COMPENSATION: Offsetting of two obligations
which are reciprocally extinguished if they are of
the same value, or extinguished to the
concurrent amount if of different values. (Asked
in 80, 81, 98, and 02)
Compensation

Confusion

There must always be 2


obligations

Involves only one


obligation

There are 2 persons who are


mutually
debtors
and
creditors of each other in 2
separate obligations, each
arising from the same cause.

There is only one


person whom the
characters of the
creditor and debtor
meet

Kinds
1. As to extent
Total: Debts are of the same amount
Partial: Amounts are not equal
2. As to origin
Legal: takes place by operation of law
Conventional:
parties
agree
to
compensate their mutual obligations
even when some requisite in Art. 1279 is
lacking (Art. 1282).
Judicial: decreed by court when there is
counterclaim; effective upon final
judgment (Art. 1283).
Facultative: when it can be claimed by
one of the parties who, however, has the
right to object to it.

110
OBLIGATIONS

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

2.

3.
4.
5.

6.

Requisites
Each obligor is
bound principally,
and at the same time
a principal creditor of
the other
Both debts must
consist in a sum of
money, or if the
things due are
FUNGIBLE, of the
same kind & quality
Both debts are due
Debts are liquidated
and demandable
There must be no
retention or
controversy over
either of the debts,
rd
commenced by 3
persons and
communicated in
due time to the
debtor
Compensation is not
prohibited by law

1.

2.

3.

4.

Effects
Effects rise from the
moment all the
requisites concur.
Debtor claiming its
benefits must prove
compensation; once
proven, effects
retroact from the
moment when the
requisites concurred.
Both debts are
extinguished to the
concurrent amount,
eventhough the
creditors and debtors
are not aware of the
compensation.
Accessory
obligations are also
extinguished.

Compensation is prohibited in:


1. Contracts of depositum
2. Contracts of commodatum
3. Future support due by gratuitous title
4. Civil liability arising from a penal offense
5. Obligations due to the government
6. Damage caused to the partnership by a
partner
ASSIGNMENT OF CREDIT (Art. 1285):
No effect and does not bind the debtor unless
and until the latter is notified of the assignment
or learns of it.
With Debtors
Consent

With Debtors
Knowledge

Debtors
consent
to
assignment of
credit
constitutes
a
waiver
of
compensation,
unless
he
reserved
his
right
to
compensation.

Debtor may set


up
compensation
of
debts
(maturing)
before
the
assignment of
credit but not of
subsequent
ones

Without
Debtors
Knowlege
Debtor
may
setup
compensation
of all credits
(maturing) prior
to
the
assignment and
also latter ones
until he had
knowledge of
the assignment.

Facultative compensation: Compensation which


can only be set up at the option of a creditor, when
legal compensation cannot take place because some
legal requisites in favor of the creditor are lacking.
Creditor may renounce his right to compensation, and
he himself may set it up.As opposed to conventional
compensation, facultative compensation is unilateral
and does not depend upon the agreement of the
parties.

VI. Novation
NOVATION: Extinguishment of an obligation by
the substitution or change of the obligation by a
subsequent one which extinguishes or modifies
the first either by changing the object or principal
conditions, or by substituting the person of the
debtor, or by subrogating a third person in the
rights of the creditor. A juridical act of dual
functionit extinguishes an obligation, and at
the same time, it creates a new one in lieu of the
old. (Asked in 78, 88, 94 and 01)
Requisites
1. A previous valid obligation
2. Agreement of all the parties to the new
obligation
3. Extinguishment of the old obligation
4. Validity of the new obligation
Novation is not presumed.
Express novation: Parties must expressly
disclose their intent to extinguish the old
obligation by creating a new one.
Implied novation: No specific form is
required. There must be incompatibility
between the old and new obligation or
contract.
(Asked in 79, 82, 88, and 94)
California Bus Line v. State Investment (2003): In the
absence of an unequivocal declaration of
extinguishment of the pre-existing obligation, only
proof of incompatibility between the old and new
obligation would warrant a novation by implication.
The restructuring agreement merely provided for a
new schedule of payments and authority giving Delta
to take over management and operations of CBLI in
case it fails to pay installments. There was no change
in the object of prior obligations.

Test of Incompatibility
Whether or not the old and new obligation can
stand together, each one having an independent
existence. No incompatibility exists when they
can stand together. Hence, there is no novation.
Incompatibility exists when they cannot stand
together. Hence, there is novation.
Effects
In General

1.

Old
obligation is
extinguished
and replaced
by the new
one
stipulated.

If
Original
Obligation
is
Void
Novation is void if
the
original
obligation
was
void,
except
when annulment
may be claimed
only
by
the

If
New
Obligation
is
Void
New obligation is
void,
the
old
obligation
subsists, unless
the
parties
intended that the
former realations

111
OBLIGATIONS

1.

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

debtor, or when
ratification
validates
acts
that are voidable.
(Art. 1298)
1.
Original
obligation is void:
No novation
2.
Original
obligation
voidable:
Effective
if
contract is ratified
before novation

shall
be
extinguished
in
any event. (Art.
1297)
1. New obligation
void: No novation
2. New obligation
voidable:
Novation
is
effective

Accessory obligations are also extinguished,


but may subsist only insofar as they may
rd
benefit 3 persons who did not give their
consent to the novation OR may not be
affected upon agreement between the
parties.

Original or new obligation with suspensive or


resolutory condition
Art. 1299: If original obligation was subject to a
suspensive or resolutory condition, the new
obligation shall be under the same condition,
unless it is otherwise stipulated.
Compatible Conditions

Fulfillment of both
conditions:
new
obligation becomes
demandable
Fulfillment
of
condition concerning
the
original
obligation:
old
obligation is revived;
new obligation loses
force
Fulfillment
of
condition concerning
the new obligation:
no
novation;
requisite
of
a
previous valid and
effective obligation
lacking

Incompatible
Conditions
Original obligation is
extinguished, while
new obligation exists
Demandability shall
be
subject
to
fulfillment/
nonfulfillment of the
condition affecting it

OBJECTIVE NOVATION
1. Change of the subject matter
2. Change of causa or consideration
3. Change of the principal conditions or terms
SUBJECTIVE NOVATION
1. Substitution of the Debtor: Consent of
creditor is an indispensable requirement
both in expromision and delegacion.

Expromision
Initiative for change does
not emanate from the
debtor, and may
Even be made without
his knowledge.

Requisites
1. Consent of the
creditor and the new
debtor
2. Knowledge or
consent of the old
debtor is not
required
Effects
1. Old debtor is
released
2. Insolvency of the
new debtor does not
revive the old
obligation in case the
old debtor did not
agree to expromision
3. If with knowledge
and consent of old
debtor, new debtor
can demand
reimbursement the
entire amount paid
and w/ subrogation
of creditors rights
4. If without knowledge
of the old debtor,
new debtor can
demand
reimbursement only
up to the extent that
the latter has been
benefited w/o
subrogation of
creditors rights

Delegacion
Debtor (delegante) offers
or initiates the change,
and
the
creditor
rd
(delegatorio) accepts 3
person (delegado) as
consenting
to
the
substitution
Requisites
1. Consent of old
debtor, new debtor,
and creditor

Effects
1. Insolvency of the
new debtor revives
the obligation of the
old debtor if it was
anterior and public,
and known to the old
debtor.
2. New debtor can
demand
reimbursement of
the entire amount he
has paid, from the
original debtor. He
may compel creditor
to subrogate him to
all of his rights.

rd

2. Subrogation of a 3 person in the rights


of the creditor
a. Conventional
subrogation:
by
agreement of the parties;
rd

Requisites: the consent of the 3


person, and of the original parties (Art.
1301).
Conventional
subrogation
Debtors consent is
necessary
Extinguishes
an
obligation and gives
rise to a new one

Assignment of credit
Debtors consent is not
required
Refers to the same right
which passes from one
person to another, without
modifying or extinguishing
the obligation

112
OBLIGATIONS

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER


Defects/ vices in the
old obligation are
cured

Chapter IV. EXTINGUISHMENT of OBLIGATIONS


Defects/ vices in the old
obligation are not cured

b. Legal subrogation: by operation of law

Effects
Total
1. Transfers to the
person subrogated
the credit with all the
rights
thereto
appertaining, either
against the debtor or
rd
3 persons.
2. Obligation is not
extinguished, even if
the intention is to
pay it.
3. Defenses against the
old
creditor
are
retained,
unless
waived by the debtor

Partial
1. A creditor, to whom
partial payment has
been made, may
exercise his right for
the remainder, and
shall be preferred to
the
person
subrogated in his
place in virtue of the
partial payment.

113
OBLIGATIONS

Legal subrogation is not presumed,


except in the following circumstances:
1. When creditor pays another creditor
who is preferred, even without the
debtors knowledge
rd
2. When a 3 person not interested in
the obligation pays with the express
or tacit approval of the debtor
3. When, even without the knowledge
of the debtor, a person interested in
the fulfillment of the obligation
without prejudice to the effects of
confusion as to the latters share
effects of confusion as to the latters
share

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

Charts: Payment & Performance


by Professor Eduardo A. Labitag
UP College of Law
(Asked in 75, 84, 88, 95, and 98)

1.
2.
3.
4.

Legend:
G = General Rule
= Exception
C = Creditor
D = Debtor

In GENERAL
Debtor or his:
Authorized Agent
Heir
Successor-in- interest

3rd PERSON
Interested in obligation
(creditor cannot refuse
to accept valid payment)

Payment w/ or
w/o debtors
knowledge
Effects:
1.
Valid
payment;
obligation extinguished
2. Debtor to reimburse
fully 3rd person interested
in obligation
3. 3rd person subrogated
to rights of creditor

In Obligation to Give, if
PAYOR has

Not interested in obligation


(creditor may refuse to accept
payment [1236])

Payment with
debtors consent
(express/tacit)
Effects:
1. 3rd person is entitled
to full reimbursement
2. Legal subrogation
(novation) 3rd person
is subrogated/step into
the shoes of creditor

3rd person (whether or not


interested in obligation) does not
intend to be reimbursed (1238)

Payment without
debtors knowledge
or against the will of D
Effects:
3rd person can only be
reimbursed only insofar as
payment has been beneficial to
debtor(1236, 2nd. par.)
burden of proof on 3rd person
cannot compel C to subrogate
him (1237)

Debtor must give


consent

Effects:
1. Payment is deemed
as a donation/offer of
donation
2. Donation must be in
proper form (if above
P5Th must be in
writing

No free disposal & no


capacity to alienate

Effects: Payment is invalid w/o prejudice to


natural obligations

Minor who entered


contract w/o consent of
parent or guardian

Effects: No right to recover fungible


thing delivered to creditor who spent
or consumed it in good faith

114

114
OBLIGATIONS

WHO CAN PAY?

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

TO WHOM PAYMENT MAY BE MADE


In GENERAL

Creditor /person in whose favor obligation was


constituted, or

His successor in interest, or

115

G NOT valid

Payment to Incapacitated
Creditor (1241)

Payment to 3rd
PERSON (1241,
2nd par.)

In Case of
ACTIVE
SOLIDARITY

1) If C has kept the thing delivered


2) Insofar as payment benefited C

G VALID if 3rd
person proves
that
it
redounded
to
Cs benefit

Exception to proof of benefit:


.3rd person acquires Cs rights after payment
.C ratifies payment
.Cs conduct leads D to believe that 3rd
person had authority to receive payment
.Assignment of credit without notice to D

If no demand is made, D may pay to ANY of


solidary creditors

If any judicial/extrajudicial demand is made by any


one of the creditors who made the demand (1214)

Effect:
No extinguishment
If payment is made
to
a
WRONG
PARTY

OBLIGATIONS

Any person authorized to received payment (1240)

Extinguishment if fault or
negligence can be imputed
to creditor

Payment in good faith to person in


possession of credit = debtor released
(1242)

If debtor pays creditor after being


judicially ordered to retain debt =
payment not valid (1243)
Payment made in good faith to any
person in possession of credit
Effect: D released (1242)

115

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

WHAT IS TO BE PAID? IDENTITY

In GENERAL
The very prestation (thing or service
Debtor cannot compel C
to receive a different
specific thing even latter
has same value or more
valuable than that due
(1244)

G:
C cannot demand a thing of superior quality;
can demand inferior
D cannot deliver a thing of inferior quality

Obligation to give a
GENERIC thing

Unless quality & circumstances have been


stated (1246) purpose and other circumstances
of obligation considered
Obligation to pay sum of money, if D alienates
property to C = DACION EN PAGO governed by
law on SALES (1245)

Obligation to DO or
NOT to DO

Payment of
MONEY

Payment of
INTEREST

Identity: The very same act promised to be done


or not to be done
Substitution cannot be done against Cs will
(1244, 2nd par.)

1. Payment of domestic obligations in Phil.


Currency
Exceptions under R.A. 4100; R.A. 8183
Foreign currency if agreed to by parties
2.
In case of extraordinary inflation/deflation,
basis
of payment is value of currency at the time of
obligation was established (1250)
No interest (i.e., for the use of someones money)
shall be due unless expressly stipulated in writing

116
OBLIGATIONS

Obligation to give a
SPECIFIC thing

Give:
1. Specific thing itself
2. Accessions & accessories
3. If with loss, improvements,
deterioration Apply Art.
1189

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

HOW IS PAYMENT TO BE MADE INTEGRITY

Exceptions:
1. Contrary stipulation
2. When debt is in part liquidated & in part
unliquidated
3. When there are several subjects/parties
are bound under different terms/conditions

In Case of SUBSTANTIAL
PERFORMANCE IN
GOOD FAITH (1234)

PRESUMPTIONS
in payment of
INTERESTS &
INSTALLMENTS

Effect if C accepts incomplete


performance (1235): WAIVER

May be express or implied


If C knows the incompleteness/
irregularity of the payment, and he
still accepts it w/o objection, then
obligation is deemed extinguished
(estoppel)
* There must be intent to waive
Except if C has no knowledge of
the incompleteness

D may recover as if there had


been complete fulfillment
- Less damages suffered by C

INTEREST If principal amount is


received w/o reservation as to
interest interest is presumed to
have been paid (1176; 1253)
INSTALLMENTS If a latter
installment of a debt is received
w/o
reservation
to
prior
installments

Prior
installments
are
presumed paid (1176, 2nd par.)

117
OBLIGATIONS

In GENERAL
1233 Complete delivery or rendering
1248 C cannot be compelled to
received partial prestations; D cannot
be compelled to give partial payments

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

WHERE PAYMENT IS TO BE MADE (ART. 1251)

In GENERAL
In the place designated in the obligation

In any other case


Domicile of debtor

If D changes his domicile


in bad faith or after he has
incurred in delay
Additional expenses
shall be borne by D

Expenses
Payment

of

Making

In GENERAL
Extrajudicial
expenses
required by the payment
shall be borne by DEBTOR

Unless otherwise
stipulated

As to JUDICIAL expenses
Rules of Court shall
govern

118
OBLIGATIONS

If no place is designated

If obligation is to deliver a
SPECIFIC thing
Place of performance is
wherever the thing was at
the moment obligation was
constituted
Unless there is a
contrary
express
stipulation

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

WHEN PAYMENT IS TO BE MADE?

When obligation is due and


demandable but D may pay before
due date if period is for benefit of D

Exceptions wherein demand of creditor is not


necessary for delay to exist:
1. When obligation/law expressly declares
2. Nature & circumstances of the obligation
designation of time is controlling motive or
establishment of contract
3. When demand would be useless

WHY SHOULD PAYMENT BE MADE?

Because C may compel D to pay, and


failure to pay will allow C to satisfy credit
from properties of D that are not exempt
from execution

- end of Obligations -

119
OBLIGATIONS

In GENERAL
Payment to be made when the creditor
makes
a
demand
(judicially/extrajudicially)

CIVIL LAW REVIEWER

TABLE of CONTENTS

CONTRACTS
Table of Contents
Chapter I. General Provisions.....................122
I.
Classification of Contracts.................122
II.
Elements of Contracts.......................123
III. Stages of Contracts...........................123
IV. Charactertics of Contracts (MARCO) 123

Chapter III. Forms of Contracts ..................129


I.
Rules .................................................129
II.
Kinds of Formalities...........................129
Chapter IV. Reformation of Contracts........130
Chapter V. Interpretation of Contracts.......130
Chapter VI. Defective Contracts .................131
I.
Rescissible Contracts (Arts. 1380-1389)
131
II.
Voidable Contracts (Arts. 1390-1402)
132
III. Unenforceable Contracts (Arts. 14031408) ..........................................................133
IV. Void or Inexistent Contracts (Arts. 14091422) ..........................................................134

121
CONTRACTS

Chapter II. Essential Requisites .................125


I.
Consent .............................................125
II.
Object ................................................127
III. Cause ................................................127

Prof. Solomon Lumba


Faculty Editor

Leo Ledesma
Lead Writer
Krizel Malabanan
Ivy Velasco
Tin Reyes
Frances Domingo
Hazel Abenoja
Writers

CIVIL LAW
Kristine Bongcaron
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Subject Editors

ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

PRINTING & DISTRIBUTION


Kae Guerrero

DESIGN & LAYOUT


Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya

LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo
Heads
Katz Manzano Mary Rose Beley
Sam Nuez Krizel Malabanan
Arianne Cerezo Marcrese Banaag
Volunteers

MOCK BAR COMMITTEE


Lilibeth Perez

BAR CANDIDATES WELFARE


Dahlia Salamat

LOGISTICS
Charisse Mendoza

SECRETARIAT COMMITTEE
Jill Hernandez
Head
Loraine Mendoza Faye Celso
Mary Mendoza Joie Bajo
Members

Chapter I. General Provisions


I.
II.
III.
IV.

CLASSIFICATION
ELEMENTS
STAGES
CHARACTERISTICS

Article 1305, Civil Code. A contract is a meeting of


minds, between two persons whereby one binds
himself, with respect to the other, to give something
or to render some service.

I.

Classification of Contracts

A. To formation:
1. Consensual: consent is enough; e.g.
sale
2. Real: consent and delivery is required;
e.g. deposit, pledge
3. Solemn or formal: special formalities are
required for perfection e.g. donation of
realty
B. To relation to other contracts:
1. Principal: may exist alone; e.g. lease
2. Accessory: depends on another contract
for its existence; e.g. guaranty
3. Preparatory: a preliminary step towards
the celebration of a subsequent
contract; e.g. agency
C. To nature of vinculum
1. Unilateral: only one party is bound by
the prestation; e.g. commodatum
2. Bilateral (synallagmatic): where both
parties are bound by reciprocal
prestations; e.g. sale
D. To fulfillment of prestations
1. Commutative: fulfillment is determined in
advance
2. Aleatory: fulfillment is determined by
chance
E. By equivalence of prestations
1. Gratuitous: no correlative prestation is
received by a party
2. Onerous: there is an exchange of
correlative prestations
3. Remuneratory: the prestation is based
on services or benefits already received
F. By the time of fulfillment
1. Executed: obligation is fulfilled at the
time contract is entered into
2. Executory: fulfillment does not take
place at the time the contract is made
G. To their purpose

122
CONTRACTS

OBLIGATIONS & CONTRACTS TEAM

Chapter I. GENERAL PROVISIONS

OBLIGATIONS & CONTRACTS

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS

H. To their subject matter


1. Things, e.g. sale, deposit
2. Services, e.g. agency
I.

To their designation
1. Nominate: the law gives the contract a
special designation or particular name
e.g. deposit
2. Innominate: the contract has no special
name

Article
1305,
Civil
Code.
INNOMINATE
CONTRACTS shall be regulated by the stipulations
of the parties, by the general provisions of Titles I
and II of [the Civil Code], by the rules governing the
most analogous nominate contracts, and by the
customs of the place.

Classes of Innominate Contracts


1. Do ut des: I give so that you may give
2. Do ut facias: I give so that you may do
3. Facio ut facias: I do so that you may do
4. Facio ut des: I do so that you may give

III. Stages of Contracts


A. Preparation, conception or generation:
period of negotiation and bargaining, ending
at the moment of agreement
B. Perfection or birth: the moment when the
parties come to agree on the terms of the
contract
C. Consummation or death: the fulfillment or
performance of the terms agreed upon

IV. Charactertics of Contracts (MARCO)


A. MUTUALITY
The contract must bind both contracting parties;
its validity or compliance cannot be left to the will
of one of them (Art.1308).
Taylor v. Uy Teng Piao, 1922: [BUT] a contract may
expressly confer upon one party the right to cancel
the contract because the exercise of that right is a
fulfillment of the provisions of the contract itself

II. Elements of Contracts


A. Essential: Those without which the contract
would not exist (consent, object, causa).
B. Natural: Those which are derived from the
nature of the contract and ordinarily
accompany the same-they are presumed to
exist unless the contrary is stipulated e.g.
warranty in sales
C. Accidental:
stipulated
Common
Elements
Special
Elements
Example

Those

which

exist

only

Solemn
Real
Consensual
Consent, subject matter, causa
Formality

Delivery

None

Donationo
f personal
property
more than
P5K

Loan,
pledge

Others

if

The release must be binding on both parties.


The determination of the performance may
rd
be left to a 3 person, whose decision shall
NOT be binding if:
It is evidently inequitable (the courts will
decide)
The decision had not been made known
to both parties (Art.1309)

B. AUTONOMY
The contracting parties may establish such
stipulations, clauses, terms and conditions as
they may deem convenient, provided they are
not contrary to law, morals, good customs,
public order, or public policy (Art. 1306).

C. RELATIVITY
Contracts take effect only between parties, their
assigns and heirs UNLESS, obligations arising
from the contract are not transmissible by their
(1) nature, (2) by stipulation or (3) by provision of
law. The heir is not liable beyond the value of
the property he received from the decedent. (Art.
1311)
Exception: Strangers may enforce the contract
in their favor in the ff. cases:
1. Stipulations Pour Autrui
If a contract should contain some stipulation
in favor of a third person, he may demand its
fulfilment provided he communicated his

123
CONTRACTS

1. Transfer of ownership, e.g. sale


2. Conveyance of Use, e.g. Commodatum
3. Rendition of Service, e.g. agency

Chapter I. GENERAL PROVISIONS

acceptance to the obligor before its


revocation. A mere incidental benefit or
interest of a person is not sufficient. The
contracting parties must have clearly and
deliberately conferred a favour upon a third
person (Art.1311).

Requisites:
a. Existence of a valid contract
b. Knowledge of the third person of the
existence of the contract; and
c. Interference by third person without
legal justification or excuse

Requisites:
a. There must be a stipulation in favor of a
third person
b. The stipulation must be part, not the
whole of the contract
c. The contracting parties must have
clearly and deliberately conferred a
favor upon a third person, NOT a mere
incidental benefit or interest.
d. The
third
person
must
have
communicated his acceptance to the
obligor before its revocation
e. No relation of agency exists between
any of the parties and the third person
favored

D. CONSENSUALITY
Contracts are perfected by mere consent and
from that moment, the parties are bound not only
to the fulfillment of what has been expressly
stipulated but also to all consequences which,
according to their nature, may be in keeping with
good faith, usage and law, (Art.1315) EXCEPT
real contracts, such as deposit, pledge and
commodatum, are not perfected until the
delivery of the object of the obligation.
(Tolentino)

Florentino v. Encarnacion, 1977:


a. Contracts to perform personal acts
which cannot be as well performed by
others are discharged by the death of
the promissor. Conversely, where the
service or act is of such a character that
it may as well be performed by another,
or where the contract, by its terms,
shows that performance by others
was contemplated, death does not
terminate the contract or excuse
nonperformance.
b. In this case the stipulation is a
stipulation pour atrui because the true
intent of the parties is to confer a direct
and material benefit upon a third party.
Accion Directa: Where the statute
authorizes the creditor to sue on his
debtors contract, e.g. lessor v. sublessee (Art. 1651,1652) (J.B.L. Reyes)
2. Third Person In Possession
When the third person comes into
possession of the object of a contract
creating real rights (Art 1312)
3. Fraud
Where the contract is entered into in order to
defraud a person (Art. 1313)
4. Tortuous Interference
Where the third person induces a
contracting party to violate his contract
(Art.1314).

E. OBLIGATORY FORCE
Art. 1159, Civil Code. Obligations arising from
contracts have the force of law between the
contracting parties and should be complied with in
good faith.
Art. 1308, Civil Code. The contract must bind both
contracting parties; its validity or compliance cannot
be left to the will of one of them.
Art. 1315, Civil Code. Contracts are perfected by
mere consent, and from that moment the parties are
bound not only to the fulfillment of what has been
expressly stipulated but also to all the consequences
which, according to their nature, may be in keeping
with good faith, usage and law.
Art. 1356, Civil Code. Contracts shall be obligatory,
in whatever form they may have been entered into,
provided all the essential requisites for their validity
are present. However, when the law requires that a
contract be in some form in order that it may be valid
or enforceable, or that a contract be proved in a
certain way, that requirement is absolute and
indispensable. In such cases, the right of the parties
stated in the following article cannot be exercised.

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Chapter II. Essential Requisites


I. CONSENT
II. OBJECT
III. CAUSE

I.

Consent

Conformity of the parties to the terms of the


contract; the acceptance by one of the offer
made by the other. (Manresa)
Requisites:
1. It must be manifested by the concurrence of
the offer and acceptance (Arts. 1319-1326)
2. The contracting parties must possess the
necessary legal capacity (Arts. 1327-1329)
3. It must be intelligent, free, spontaneous, and
real (not vitiated) (Arts. 1330-1346)
A. Concurrence
1. Offer: a unilateral proposition which one
party makes to the other for the celebration
of the contract. (Tolentino)
Requisites:
a. Definite
b. Intentional
c. Complete
Invitations
to
make
offers
(advertisements)
Business advertisements of things for
sale, are NOT definite offers, just
invitations to make an offer, UNLESS
the contrary appears (Art. 1325)
Advertisements
for
bidders
are
invitations to make proposals, advertiser
is NOT bound to accept lowest or
highest bid, UNLESS contrary appears;
the bidder is the offeror (Art. 1326).
Statements of intention: no contract
results even if accepted
Rosenstock v. Burke, 1924:
FACTS: Elser, in a letter, informed Burke that he was
in a position and is willing to entertain the purchase
of the yacht under some terms.
HELD: The word entertain applied to an act does not
mean the resolution to perform said act, but simply a
position to deliberate for deciding to perform or not to
perform said act. It was merely a position to deliberate
whether or not he would purchase the yacht and
invitation to a proposal being made to him, which
might be accepted by him or not.

Chapter II. ESSENTIAL REQUISITES

OFFER TERMINATES upon:


a. Rejection by the offeree
b. Incapacity (death, civil interdiction,
insanity, or insolvency) of the offeror or
offeree before acceptance is conveyed
c. Counter-offer
d. Lapse of the time stated in the offer
without acceptance being conveyed
e. Revocation of the offer before learning
of acceptance
f. Supervening illegality before acceptance
(J.B.L. Reyes)
2. Acceptance
Requisites:
a. Unqualified and Unconditional, i.e. it
must conform with all the terms of the
offer, otherwise it is a counter-offer (Art.
1319)
b. Communicated to the offeror and
learned by him (Arts. 1319, 1322). If
made through an agent, the offer is
accepted from the time the acceptance
is communicated to such agent.
c. Express/Implied, but is not presumed
OPTION CONTRACT: A preparatory
contract in which one party grants to the
other, for a fixed period, the option to decide
whether or not to enter into a principal
contract. (Art. 1324)
With consideration
Offeror
cannot
unilaterally withdraw his
offer

Without consideration
Offeror may withdraw by
communicating withdrawal
to the offeree before
acceptance

B. Capacity
1. Incapacitated to Give Consent
a. Minors, UNLESS, the minors consent
is operative in contracts:
For necessaries (Art.1427)
Where
the
minor
actively
misrepresents his age (estoppel)

Mercado v. Espiritu, 1917:


Minors held in estoppel through
active misrepresentation
Bambalan v. Maramba, 1928:
There is no estoppel if the minority
was known.
b. Insane
or
demented
persons,
UNLESS, they contract during a lucid
interval
c. Deaf-mutes who do not know how to
read and write.

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Chapter II. ESSENTIAL REQUISITES

2. Disqualified to Contract (Art. 1329):


a. Those under Civil interdiction for
transactions inter vivos (RPC Art. 34)
b. Undischarged insolvents (Insolvency
Law, Sec.24)
c. Husband and wife: cannot donate (Art.
123 FC) to each other, nor sell if the
marriage is under ACP (Art.1490)
d. The ff. cannot purchase (Art. 1491):
The guardian: his wards property
The agent: the principals property
Executors
and
administrators:
property under administration
Public officers-state property under
their administration
Justices, judges, prosecutors, clerks
of court, lawyers-property attached
in litigation.
e. Members of Ethnic Minorities: their
contracts (excluding sale of personal
property or personal service contracts)
must be approved by the Governor or
his representative. (Public Land Act)
Incapacity
to
Give
Consent (Art. 1327)
Restrains the exercise of
the right to contract
Based
on
subjective
circumstances of certain
persons

Disqualification
to
Contract (Art.1329)
Restrains the very right
itself
Based on public policy
and morality

Voidable

Void

C. Vices of Consent (Art. 1330, CC) (MIVUF)


1. Mistake
Inadvertent and excusable disregard of a
circumstance material to the contract. (J.B.L.
Reyes)
In order that mistake may invalidate
consent, it should refer to the
substance of the thing which is the
object of the contract, or to those
conditions which have principally moved
one or both parties to enter into the
contract (Art.1331)
Mistake of Fact

Mistake of Law

Mutual Mistake

When one or
both contracting
parties believe
that a fact exists
when in reality it
does not, or vice
versa

When one or
both
parties
arrive at an
erroneous
conclusion on
the
interpretation of
a question of
law or the legal
effects

Must be as
to the legal
effect of an
agreement
Must
be
mutual
Real purpose
of the parties
must
have
been
frustrated

2. Intimidation
When one of the contracting parties is
compelled by a reasonable and wellgrounded fear of an imminent and grave evil
upon his person or property, or upon the
person or property of his spouse,
descendants or ascendants, to give his
consent (Art. 1335).
Martinez v. HSBC, 1910: The conveyance of several
properties by to her husbands creditors, though
reluctant is still consent. She assented to the
requirements of the defendants, the civil and criminal
actions against them would be dropped. A contract is
valid even though one of the parties entered into it
against his wishes and desires, or even against his
better judgment. Contracts are also valid even though
they are entered into by one of the parties without
hope of advantage or profit.

3. Violence
Irresistible force used to extort consent
(J.B.L. Reyes)
4. Undue Influence
When a person takes improper advantage of
his power over the will of another, depriving
the latter of a reasonable freedom of choice
(Art. 1337).
Circumstances:
a. Relationship of the parties (family,
spiritual, confidential etc.)
b. That the person unduly influenced was
suffering
from
infirmity
(mental
weakness, ignorance etc.) (Art.1337)
5. Fraud
When
through
insidious
words
or
machinations of one of the contracting
parties, the other is induced to enter into a
contract which, without them, he would not
have agreed to (Art. 1338).
Art. 1339, Civil Code. Failure to disclose facts, when
there is a duty to reveal them, as when the parties are
bound by confidential relations, constitutes fraud.
Art. 1340, Civil Code. The usual exaggerations in
trade, when the other party had an opportunity to
know the facts, are not in themselves fraudulent.
Art. 1341, Civil Code. A mere expression of an
opinion does not signify fraud, unless made by an
expert and the other party has relied on the former's
special knowledge.
Art. 1342, Civil Code. Misrepresentation by a third
person does not vitiate consent, unless, such
misrepresentation has created substantial mistake

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Chapter II. ESSENTIAL REQUISITES

Art. 1343, Civil Code. Misrepresentation made in


good faith is not fraudulent but may constitute error.

SIMULATION OF CONTRACTS (Art. 13451346): Declaration of a non-existent will made


deliberately for the purpose of producing the
appearance of a transaction that does not exist,
or which is different from the one which actually
arose. (J.B.L. Reyes)
Absolute
No real transaction is
intended
Fictitious contract
Void

Relative
Real transaction is hidden
Disguised contract
Bound
as
to
hidden
agreement, so long as it
does not prejudice a third
person and is not contrary
to law, morals, good
customs, public order or
public policy

II. Object
The thing right or service which is the subject
matter of the obligation arising from the contract.
Requisites:
a. Lawful: Not contrary to law, morals, good
customs, public order or public policy.
b. Actual or possible
c. Transmissible: Within the commerce of man
d. Determinate or determinable
All things or services may be the object of
contracts, EXCEPT:
Things which are outside the commerce of
men
Intransmissible rights
Future inheritance except in cases
authorized by law
Impossible things or services
Objects which are indeterminable as to their
kind, the genus should be expressed
In order that a thing, right or service may be the
object of a contract, it should be in existence at
the moment of the celebration of the contract, or
at least, it can exist subsequently or in the
future.
A FUTURE THING may be the object of a
contract, such contract may be interpreted as a:
Conditional contract: where its efficacy
should depend upon the future existence of
the thing

Aleatory contract: where one of the contracting


parties assumes the risk that the thing will never
come into existence, e.g. insurance

III. Cause
It is the impelling reason for which a party
assumes an obligation under a contract.
Requisites:
a. Existing
b. Licit or Lawful
c. True

127

Cause in:
Onerous
Contracts
As to each of
the contracting
parties
is
understood to
be
the
undertaking or
the promise of
the thing or
service by the
other party

Renumeratory
Contracts
The
service
benefit which
remunerated

or
is

Pure
Beneficence
Mere
liberality of
the
benefactor

In Villaroel v. Estrada (1940), where a moral


obligation is based upon a previous civil obligation,
which has already been barred by the statute of
limitations at the time the contract is entered into, it
constitutes a sufficient cause or consideration to
support a contract (Natural Obligation).
BUT,
In Fisher v. Robb (1939), if the moral obligation arises
wholly from ethical consideration, it cannot constitute
a sufficient cause to support an onerous contract, as
when the promise is made on the erroneous belief
that one was morally responsible for the failure of an
enterprise (Moral Obligation).
Cause
Lack
Cause

of

Illegality
Cause

of

Falsity
cause

of

Lesion
or
inadequacy
of cause

Defined
Absence or total
lack of cause

Contrary to law,
morals,
good
customs, public
policy
and
public order
Cause is stated
but is untrue

Cause is not
proportionate to
object

Effect
The
contract
confers no right
and has no legal
effect
Null and Void

Void if it should
not be proved that
it was founded
upon
another
cause which was
true and lawful
Shall not invalidate
the
contract
except when

CONTRACTS

and the same is mutual.

CIVIL LAW REVIEWER

Chapter II. ESSENTIAL REQUISITES


a)there is fraud,
mistake,
undue
influence
b)when
parties
intended
a
donation

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CONTRACTS

Liguez v. CA (1957): In making the donation in


question, Lopez was not moved exclusively by the
desire to benefit Liguez, but also to secure her
cohabiting with him, so that he could gratify his sexual
impulses. The donation was an onerous transaction
and clearly predicated upon an illicit causa.

Chapter III. Forms of Contracts


I. RULES
II. KINDS OF FORMALITIES

I.

Rules

Contracts shall be obligatory, in whatever form


they may have been entered into, provided all
the essential requisites for their validity are
present. (Art. 1356)

Chapter III. FORMS OF CONTRACTS

d. The cession of actions or rights


proceeding from an act appearing in
a public document.
e. All other contracts where the
amount involved exceeds five
hundred pesos must appear in
writing, even a private one. But
sales of goods, chattels or things in
action are governed by Articles,
1403, No. 2 and 1405.
2. Donation of immovable properties (Art.
749)

Spiritual System of the Spanish Code: The law looks


more on the spirit rather than the form of contracts.

3. Partnership where immovable property


or real rights are contributed to the
common fund (Arts.1771 and 1773)

Exceptions:
When the law requires that a contract be in
some form for validity (Arts. 1357-1358)
When the law requires that contract be in
some form to be enforceable (Statute of
Frauds)

BF Corporation v. CA, 1998: A contract may be


encompassed in several instruments even though
every instrument is not signed by the parties since it is
sufficient if the unsigned instruments are clearly
identified or referred to and made part of the signed
instruments.

II. Kinds of Formalities


A. Contracts Which Must Appear in Writing:
1. Donation of personal property whose
value exceeds five hundred pesos (Art
748)
2. Sale of a piece of land or any interest
therein through an agent (Art 1874)
3. Antichresis (Art 2134)
4. Agreements regarding payment of
interests in contracts of loans (Art. 2314)
B. Contracts Which Must Appear in a Public
Document
1. Art. 1358:
a. Acts and contracts which have for
their
object
the
creation,
transmission,
modification
or
extinguishment of real rights over
immovable property; sales of real
property or of an interest therein a
governed by Articles 1403, No. 2,
and 1405;
b. The
cession,
repudiation
or
renunciation of hereditary rights or
of those of the conjugal partnership
of gains;
c. The power to administer property, or
any other power which has for its
object an act appearing or which
should appear in a public document,
or should prejudice a third person;

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Chapter IV. REFORMATION OF CONTRACTS


Chapter V. INTERPRETATION OF CONTRACTS

Chapter IV. Reformation of Contracts

Chapter V. Interpretation of Contracts

Reformation of Contracts (Art 1359-1369)


REFORMATION: is that remedy in equity by
means of which a written instrument is made or
construed so as to express or conform to the
real intention of the parties when some error or
mistake has been committed. (J.B.L. Reyes)

RULES ON DOUBTS (Art. 1378)

Requisites (Art 1359):


1. There must be a meeting of the minds of the
contracting parties;
2. Their true intention is not expressed in the
instrument;
3. Such failure to express their true intention is
due to mistake, fraud, inequitable conduct,
or accident; and
4. There is clear and convincing proof of
mistake, fraud, inequitable conduct, or
accident.
If the mistake, fraud, inequitable conduct, or accident
has prevented the meeting of the minds of the parties,
the proper remedy is not reformation but annulment of
the contract. (See also Art 1390)

Who May Ask for Reformation (Art. 1368):


1. Either party or his successors in interest, if
the mistake was mutual; otherwise,
2. Upon petition of the injured party, or his
heirs and assigns.
NO REFORMATION in (Art. 1366):
1. Simple donations inter vivos wherein no
condition is imposed;
2. Wills;
3. When the real agreement is void.
Implied Ratification (Art. 1367): The action to
enforce the instrument bars subsequent action
to reform.

Principal
Objects

Gratuitous
Contracts

Onerous
Contracts

Doubts where
it cannot be
known what
may
have
been
the
intention
or
will of the
parties,
the
contract shall
be null and
void.

Absolutely
impossible
to
settle doubts by
the rules and
only refer to
incidental
circumstances
the
least
transmission
of rights and
interests shall
prevail.

Absolutely
impossible
to
settle doubts by
the rules and
only
refer
to
incidental
circumstances
the doubt shall
be settled in
favor of the
greatest
reciprocity
of
interests.

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Chapter VI. DEFECTIVE CONTRACTS

Chapter VI. Defective Contracts


RESCISSIBLE
VOIDABLE
UNENFORCEABLE
VOID OR INEXISTENT

I.

Rescissible Contracts (Arts. 1380-1389)

What are the


rescissible
contracts?
(Art
1381; see also Art
1382)
What makes it
defective?

Effect
on
the
Contract
How to rescind?

Who can rescind?

When to rescind
(Art 1389)

Contracts of
guardians

Contracts in
representation
of absentees

Contracts are
entered into to
defraud existing
creditors

131
Contracts refer
to things in
litigation

When the acts of


administration
cause LESION or
damage to the
WARD
they
represent by more
than 25% of the
value of the thing

When the acts


of administration
cause LESION
or damage to
the ABSENTEE
they represent
by more than
25% of the value
of the thin
Valid until rescinded (Art 1380)

When the creditors


cannot in any other
manner collect the
claims due them

Direct Action (different from action for


rescission under Art 1191)

Accion Pauliana for Contracts in Fraud of


Creditors

NO rescission if:
1. Injured party has other legal
means to obtain reparation (Art
1383).
2. Plaintiff cannot return his part of
the obligation (Art 1385 par 1)
3. Object of the contract is in the
hands of third person, onerously
acquired by him in good faith (Art
1385 par 2)
4. If the court approves the
contracts under Art 1381 par 1
and 2 (Art 1386)
In general, by By absentee
injured party

NO rescission if:
1. Injured party has other legal means to
obtain reparation (Art 1383)
2. Plaintiff cannot return his part of the
obligation (Art 1385 par 1)
3. Object of the contract is in the hands of
third person, onerously acquired by
him in good faith (Art 1385 par 2)

By ward, or by
guardian ad litem
of ward during
incapacity of ward
in
an
action
against
the
original guardian
Within four years
from [re-] gaining
capacity

Within 4 years
from knowledge
of domicile of
absentee

If entered into by
the
defendant
without
the
knowledge
&
approval of the
litigants
or
competent judicial
authority

By creditor(s)

By party litigant

Within 4 years from


knowledge
of
fraudulent contract

Within 4 years
from knowledge of
fraudulent contract

CONTRACTS

I.
II.
III.
IV.

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

II. Voidable Contracts (Arts. 1390-1402)

Who can/cannot
annul?
(Art 1397)

When? (Art 1391)

Effect
Annulment

of

How to
Cure
Defect?
(Arts
1392 - 1396)

Incapacity of one party to the


contract

Consent vitiated by mistake, violence,


intimidation, undue influence or fraud

Valid until annulled by competent court (Art 1390 last par)


1. Directly, by an action for annulment
2. Indirectly, by counterclaim asking for positive action of the court to set aside the
contract
Annulment cannot proceed when:
1. the object of the contract is lost through fraud or deceit of the person with right to
institute proceedings (art 1401 par 1);
2. the right of action is based upon the incapacity of any one of the contracting
parties and the thing is lost through the fault or fraud of the plaintiff (Art 1401 par
2)
1. Parties who are obliged principally or subsidiarily
2. Persons who are capable cannot allege the incapacity of those with whom they
contracted
3. Persons who exerted intimidation, violence, or undue intimidation, or employed
fraud, or caused mistake, cannot base their action upon these flaws of the
contract
Within four years after guardianship of Within four years
minors or incapacitated persons 1. After intimidation, violence or undue
ceases
influence ceases
2. From the time of discovery of mistake
or fraud
1. Mutual restitution of the things delivered, along with fruits and price paid with
interest (Art 1398)
2. Damages to be paid by party who caused defect of the contract, by virtue of
Article 20 and 21 of the Civil Code
1. Express (written or oral manifestation) or tacit ratification (acts or conduct) by
injured party, or guardian of incapacitated person.
Ratification does not require the conformity of the contracting party
who has no right to bring the action for annulment (Art 1395)

132
CONTRACTS

What makes it
defective?
(Art
1390)
Effect on the
Contract
How to annul?

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

III. Unenforceable Contracts (Arts. 1403-1408)

Contract entered into


without authority of, or
in excess of authority
given by owner

Contracts
covered
by
Statute of Frauds which
did not comply with the
written
memorandum
requirement
(See Art 1403 par 2)

Contract where both


parties are incapable
of giving consent to
contract

Effect on the
Contract
How to assail?

No effect unless ratified. Cannot be enforced by a proper action in court.

Who can assail?


*an
unenforceable
contract cannot
be assailed by
third persons (Art
1408)
When?

By person whose name


the contract was entered
into; By owner of property.

How to
Defect?
1403)

1. Ratification by person
whose
name
the
contract was entered
into

Cure
(Art

Not by direct action.


1. As a defense, by
motion to dismiss the
complaint
on
the
ground that the contract
is unenforceable

Not by direct action.


1. As a defense, by motion
to dismiss the complaint
on the ground that the
contract is unenforceable;
2. Objection
to
the
presentation
of
oral
evidence to prove an oral
contract (See Art 1405)
By party against whom the
contract is being enforced;
or his privies.

Not by direct action.


1. As a defense, by
motion to dismiss the
complaint on the
ground
that
the
contract
is
unenforceable

By party against whom


the contract is being
enforced; or his privies;
or parents or guardians
persons, as it is a
personal defense

When a party asks the court to enforce the contract

1. Ratification by party 1. By ratification of


party against whom
against whom the
the contract is being
contract is being
enforced;
or
his
enforced
privies; or parents or
2. By failure to object to the
presentation
of
oral
evidence to prove an oral
contract
or
by
the
acceptance of benefits
under the contract (Art
1405)

guardians
The ratification by
one party converts
the contract into a
voidable contract (Art
1407)

133
CONTRACTS

What are the


unenforceable
contracts?
(Art
1403)

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

IV. Void or Inexistent Contracts (Arts. 1409-1422)


it

Contracts which
are inconsistent
and void from the
beginning
(Art
1409)

How to assail?

Who can assail?

When?

Contracts Cause, Object


of Purpose is contrary to
morals, good customs,
public order or public
policy
(Art 1409 par 1)

Inexistent contracts, or
contracts whose essential
elements are absent
(Art Art 1409 par 2, 3, 4,5)

Contracts expressly
prohibited or declared
void by law (Art 1409
par
7);
contracts
which
are
direct
results of a previous
illegal contract (art
1422)
1.Those whose Cause, Object of Purpose is contrary to morals, good customs,
public order or public policy
2.Those which are absolutely simulated or fictitious
3.Those whose cause or object did not exist at the time of the transaction
4.Those whose object is outside the commerce of men
5.Those which contemplate an impossible service
6.Those where the intention of the parties relative to the principal object of the
contract cannot be ascertained
7.Those expressly prohibited or declared void by law

1. File for action for declaration of inexistence or nullity of contract


2.As a defense during trial (Art 1409 last par). Such defense not available to third
persons not directly affected by contract (Art 1421)
3.In pari delicto applies when cause or object of contract constitutes a criminal
offense (Art 1411)
1. Innocent party Art 1. Any of the parties
1. Any person whose
1411 par 2; Art 1412 2. Any
person
whose
interests
are
par2)
interests are directly
directly affected by
2. Less-guilty party, upon
affected by the contract
the contract Art
court discretion
(Art 1421)
(1421)
3. Incapacitated person
2. By party for whose
who is a party to an
protection
the
illegal contract, upon
prohibition of the
court discretion (Art
law is designed (Art
1415)
1416)
4. Any person whose
interests are directly
affected
by
the
contract (Art 1421)
The action or defense does not prescribe (Art 1410)

- end of Contracts -

134
CONTRACTS

What makes
defective?

CIVIL LAW REVIEWER

TABLE of CONTENTS

PROPERTY
Table of Contents
Chapter VII. Usufruct ................................... 181
I.
Concept............................................. 181
II.
Characteristics .................................. 181
III. Usufruct Distiguished from Lease and
Servitude.................................................... 181
IV. Classes of Usufruct........................... 182
V. Rights of Usufructuary ...................... 184
VI. Rights of the Naked Owner............... 186
VII.
Obligations of the Usufructuary .... 187
VIII.
Special Cases of Usufruct ............ 190
IX. Extinguishment of Usufruct............... 192
X. Conditions Not Affecting Usufruct..... 194
Chapter VIII. Easement ................................ 196
I.
Concept............................................. 196
II.
Essential Features ............................ 196
III. Classification of Servitudes............... 197
IV. General Rules Relating to Servitudes
198
V. Modes of Acquiring Easements ........ 198
VI. Rights and Obligations of Owners of
Dominant and Servient Estates ................. 199
VII.
Modes
of
Extinguishment
of
Easements................................................. 200
VIII.
Legal Easements .......................... 202
Chapter IX. Nuisance ................................... 212
I.
Definition ........................................... 212
II.
Classes ............................................. 212
III. Liability in Case of Nuisance............. 213
IV. Regulation of Nuisances ................... 214
Chapter X. Modes of Acquiring Ownership
....................................................................... 217
I.
Mode v. Title ..................................... 217
II.
Mode ................................................. 217
Chapter XI. Donation ................................... 222
I.
Nature ............................................... 222
II.
Requisites ......................................... 222
III. Kinds ................................................. 222
IV. Who May Give or Receive Donations
223
V. Who May Not Give or Receive
Donations................................................... 224
VI. Acceptance ....................................... 225
VII.
Form ............................................. 225
VIII.
What May Be Donated ................. 225
IX. Effect ................................................. 226
X. Revocation and Reduction................ 227
Chapter XII. Lease........................................ 232
I.
General Characteristics .................... 232
II.
Kinds ................................................. 232
III. Lease of Things ................................ 232

136
PROPERTY

Chapter I. Definition and Classification of


Property.........................................................137
I.
Definition ...........................................137
II.
Classification .....................................137
Chapter II. Ownership ..................................144
I.
Definition ...........................................144
III. Specific Rights under the Civil Code.144
IV. Limitations on Real Right of Ownership
146
Chapter III. Accession..................................147
I.
Definition ...........................................147
II.
General Principles of Accession .......147
III. Kinds of Accession............................147
IV. Principles Governing Each Kind of
Accession...................................................147
Chapter IV. Quieting of Title........................152
I.
In General .........................................152
II.
Purpose .............................................152
III. Nature: Quasi in Rem........................152
IV. Requisites .........................................152
V. Prescription of Action ........................153
Chapter V. Co-Ownership............................154
I.
Definition ...........................................154
II.
Characteristics ..................................154
III. Difference between Co-ownership and
Joint Tenancy.............................................155
IV. Difference between Co-ownership and
Partnership.................................................155
V. Sources of Co-Ownership .................155
VI. Rights of Each Co-owner over the Thing
or Property Owned in Common .................157
VII.
Implication of Co-owners Right over
His Ideal Share ..........................................161
VIII.
Rules
on
Co-Ownership
Not
Applicable to CPG or ACP.........................161
IX. Special Rules on Ownership of Different
Stories of a House as Differentiated from
Provisions of the Condominium Act...........162
X. Extinguishment of Co-Ownership .....166
Chapter VI. Possession ...............................168
I.
Definition ...........................................168
II.
Degrees of Possession .....................169
III. Classes of Possession ......................169
IV. Cases of Possession.........................169
V. What Things May be Possessed ......170
VI. What May Not Be Possessed by Private
Persons......................................................171
VII.
Acquisition of Possession .............171
VIII.
Effects of Possession ...................173
IX. Effects of Possession in the Concept of
Owner ........................................................177
X. Presumption
in
Favor
of
the
Possessorfor Acquisitive Prescription ....178
XI. Possesion May Be Lost By ...............179

Prof. Solomon Lumba


Faculty Editor

Michelle Go
Lead Writer
Erika Esperas
Katrina Michelle Mancao
Celie Mari Santos
Writers

CIVIL LAW
Kristine Bongcaron
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Subject Editors

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Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief

PRINTING & DISTRIBUTION


Kae Guerrero

DESIGN & LAYOUT


Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya

LECTURES COMMITTEE
Michelle Arias
Camille Maranan
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Heads
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Volunteers

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Lilibeth Perez

BAR CANDIDATES WELFARE


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LOGISTICS
Charisse Mendoza

SECRETARIAT COMMITTEE
Jill Hernandez
Head
Loraine Mendoza Faye Celso
Mary Mendoza Joie Bajo
Members

Chapter I. Definition and Classification of


Property
I. DEFINITION
II. CLASSIFICATION
A. UNDER THE CIVIL CODE
B. BY OWNERSHIP
C. OTHER CLASSIFICATIONS

I.

Definition

PROPERTY: Mass of things or objects


characterized by
1. Utility capacity to satisfy human wants
2. Individualityand substantivity separate and
autonomous existence
3. Susceptibility of being appropriated those
which cannot be appropriated because of
their distance, depth or immensity cannot be
considered as things (i.e. stars, ocean)

II. Classification
A. UNDER THE CIVIL CODE
Article 414, Civil Code. All things which are or may
be the object of appropriation are considered either:
1. Immovable or real property; or
2. Movable or personal property.

IMMOVABLES OR REAL PROPERTY


Article 415
The following are immovable property:
1. Land, buildings, roads and constructions of
all kinds adhered to the soil;
2. Trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable;
3. Everything attached to an immovable in a
fixed manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object;
4. Statues, reliefs, paintings or other objects for
use or ornamentation, placed in buildings or
on lands by the owner of the immovable in
such a manner that it reveals the intention to
attach them permanently to the tenements;
5. Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which
may be carried on in a building or on a piece
of land, and which tend directly to meet the
needs of the said industry or works;
6. Animal houses, pigeon-houses, beehives,
fish ponds or breeding places of similar
nature, in case their owner has placed them
or preserves them with the intention to have

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PROPERTY

PROPERTY TEAM

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

PROPERTY

CIVIL LAW REVIEWER

7.
8.

9.

10.

them permanently attached to the land, and


forming a permanent part of it; the animals
in these places are included;
Fertilizer actually used on a piece of land;
Mines, quarries, and slag dumps, while the
matter thereof forms part of the bed, and
waters either running or stagnant;
Docks and structures which, though floating,
are intended by their nature and object to
remain at a fixed place on a river, lake, or
coast;
Contracts for public works, and servitudes
and other real rights over immovable
property.

Immovables by Nature
Those which cannot be moved from place to
place; their intrinsic quality have no utility except
in a fixed place (Par. 1 & 8)
1. Par. 1: Lands, building, roads and
constructions
a. Buildings
To be considered a building, their
adherence to the land must be
permanent and substantial.
Buildings have been considered as
immovables, despite:
Treatment by the parties e.g.
they constitute a separate
mortgage on the building and
the
land
(Punzalan
v.
Lacsamana)
Separate Ownership i.e. a
building on rented land is still
considered
an
immovable.
(Tolentino)
2. Par. 8: Mineral deposits and waters
a. Mineral Deposits
Minerals still deposited in the soil
When
minerals
have
been
extracted, they become chattel.
b. Slag Dump: dirt and soil taken from a
mine and piled upon the surface of the
ground. Inside the dump can be found
the minerals.
c. Waters: those still attached to or running
thru the soil or the ground.
Immovables by Incorporation
Those which are essentially movables but are
attached to an immovable in such a way as to be
an integral part thereof (Par. 2, 3, 4, 6 & 7)
1. Par. 2: Trees and plants
a. Trees and plants: only immovables
when they are attached to the land or
form an integral part of an immovable
When they have been cut or
uprooted, they become movables.

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

b. However, by special treatment of Act


1508 (Sec. 7, Chattel Mortgage Law),
growing crops may be subject of a
Chattel Mortgage.
c. For the purpose of attachment: growing
crops are to be attached in the same
manner as realty. (Rule 59, Sec. 7)
2. Par. 3: Things incorporated
a. Res vinta in Roman Law
b. Attachment in a fixed manner:
breakage or injury in case of separation
will be substantial e.g. wells, sewers,
aqueducts and railways
Whether attached by the owner
himself or some other person
3. Par. 7: Fertilizer
Actually used means it has been spread
over the land.

Immovables by Destination
Those which are essentially movables but by the
purpose for which they have been placed in an
immovable, partake of the nature of an
immovable because of the added utility derived
therefrom (Par. 4, 5, 6 & 9)
1. Par. 4: Fixtures and ornaments
Requisites:
a. Placed by the owner or by the tenant as
agent of the owner;
b. With intention of attaching them
permanently even if adherence will not
involve breakage or injury.
Where the improvement or ornaments
placed by the lessee are not to pass to the
owner at the expiration of the lease, they
remain movables for chattel mortgage
purposes. (Davao Sawmill v. Castillo)
2. Par. 3 v. Par. 4
Par. 3
Par. 4
Cannot be separated from Can be separated from
immovable
without immovable
without
breaking or deterioration
breaking or deterioration
Must be placed by the
Need not be placed by the
owner, or by his agent,
owner
expressed or implied
Real
property
by
Real
property
by
incorporation
and
incorporation
destination

3. Par. 5: Machinery and equipment


a. Immovable characteristic depends upon
their being destined for use in the
industry or work in the tenement;
The moment they are separated,
(from the immovable or from the
industry or work in which they are

138
PROPERTY

CIVIL LAW REVIEWER

utilized)
they
recover
their
condition as movables.
If it is still needed for the industry
but separated from the tenement
temporarily, the property continues
to be immovable.
b. Requisites for Immovability in Par. 5:
Placed by the owner or the tenant
as agent of the owner;
Adapted to the needs of the industry
or work carried on
EXCEPT: When estoppel operates
Parties to a contract may by agreement
treat as personal property that which by
nature would be real property, as long
as no interest of third parties would be
prejudiced. That characterization is
effective as between the parties.
(Makati Leasing v. Wearever)
c.

EFFECT of Attachment
Machinery become part of the
immovable.
The installation of machinery and
equipment in a mortgaged sugar
central for the purpose of carrying
out the industrial functions of the
latter and increasing production,
constitutes
a
permanent
improvement on said sugar central
and subjects said machinery and
equipment
to
the
mortgage
constituted thereon. (Berkenkotter
v. Cu Unjieng)

4. Par. 6: Animal houses and animals therein


a. Requisites:
Placed by the owner or the tenant
as agent of the owner, with the
intention of permanent attachment;
Forming a permanent part of the
immovable.
5. Par. 9: Docks and fixed floating structures
a. A floating house tied to a shore or bank
post and used as a residence is
considered real property, considering
that the waters on which it floats are
considered immovables.
b. But if the floating house makes it a point
to journey from place to place, it
assumes the category of a vessel, and
is considered immovable property
Immovables by Analogy (Par. 10)
Contracts for public works, servitudes, other
real rights over immovable property e.g.

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

usufruct and lease of real property for a


period of 1 year and registered
Effect of Enumeration: Art. 415 not
absolute
1. Parties may by agreement treat as movable
that which is enumerated by law as
immovable, but effective only as to them.
The view that parties to a deed of chattel
mortgage may agree to consider a house as
personal property for the purposes of said
contract, "is good only insofar as the
contracting parties are concerned. It is
based, partly, upon the principle of estoppel"
(Evangelista vs. Alto Surety)
2. For purposes of taxation, improvements on
land are commonly taxed as realty, even
though for some purposes, they might be
considered as personalty.
It is a familiar phenomenon to see things
classified as real property for purposes of
taxation, which on general principle, might
be considered personal property. (Manila
Electric v. Central Bank)

MOVABLES OR PERSONAL PROPERTY


Article 416, Civil Code. The following things are
deemed to be personal property:
1. Those
movables
susceptible
of
appropriation which are not included in the
preceding article;
2. Real property which by any special
provision of law is considered as personal
property;
3. Forces of nature which are brought under
control by science; and
4. In general, all things which can be
transported from place to place without
impairment of the real property to which
they are fixed.
Article 417, Civil Code. The following are also
considered as personal property:
1. Obligations and actions which have for their
object movables or demandable sums; and
2. Shares of stock of agricultural, commercial
and industrial entities, although they may
have real estate.

Tests to Determine Movable Character


1. By exclusion everything NOT included in
Article 415
Parties cannot by agreement treat as
immovable that which is legally movable.

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PROPERTY

CIVIL LAW REVIEWER

2. By description an object is immovable if it


possesses:
a. Ability to change location whether it
can be carried from place to place;
b. Without substantial injury to the
immovable to which it is attached.
The steel towers built by MERALCO are not
buildings or constructions since they are
removable and merely attached to a square
metal frame by means of bolts, which when
unscrewed could easily be dismantled and
moved from place to place, without breaking
the material or causing deterioration to the
object they are attached. (Board of
Assessment Appeals v. Meralco)
3. By special provision of law real property is
considered as personal property
a. Growing crops under the Chattel
Mortgage Law
b. Machinery installed by a lessee not
acting as agent of the owner (Davao
Sawmill v. Castillo)
c. Intellectual property considered
personal property; it consists in the
pecuniary benefit which the owner can
get by the reproduction or manufacture
of his work.
4. By forces of nature e.g. electricity, gas,
heat, oxygen

IMPORTANCE AND SIGNIFICANCE OF


CLASSIFICATION UNDER THE CIVIL CODE
Criminal Law
1. Usurpation of property can take place only
with respect to real property.
Art. 312. Occupation of real property
or usurpation of real rights in
property.
Any person who, by means of violence
against or intimidation of persons, shall
take possession of any real property or
shall usurp any real rights in property
belonging to another, in addition to the
penalty incurred for the acts of violence
executed by him, shall be punished by a
fine from 50 to 100 per centum of the
gain which he shall have obtained, but
not less than 75 pesos.

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

If the value of the gain cannot be


ascertained, a fine of from 200 to 500
pesos shall be imposed.
2. Robbery and theft can be committed only
against personal property.
Art. 293. Who are guilty of robbery.
Any person who, with intent to gain,
shall take any personal property
belonging to another, by means of
violence or intimidation of any person, or
using force upon anything shall be guilty
of robbery.
Art. 308. Who are liable for theft.
Theft is committed by any person who,
with intent to gain but without violence
against or intimidation of persons nor
force upon things, shall take personal
property of another without the latter's
consent.
Form of Contracts Involving Movables and
Immovables
1. Subject matter of specific contracts: only
real property can be the subject of real
mortgage (Art. 2124) and antichresis (Art
2132); only personal property can be the
subject of voluntary deposit (Art. 1966),
pledge (Art. 2094) and chattel mortgage (Act
1508)
2. Donations of real property are required to
be in a public instrument (Art. 749) but a
donation of a movable mat be made orally or
in writing (Art. 748)
Acquisitive Prescription
1. Real Property can be acquired by
prescription in 30 years (bad faith) and 10
years (good faith).
2. Movables can be acquired by prescription in
8 years (bad faith) and 4 years (good faith).
Venue
1. Rule 4, Sec. 1: Venue of real actions.
Actions affecting title to or possession of
real property, or interest therein, shall be
commenced and tried in the proper court
which has jurisdiction over the area
wherein the real property involved, or a
portion thereof, is situated. Forcible
entry and detainer actions shall be
commenced and tried in the municipal
trial court of the municipality or city
wherein the real property involved, or a
portion thereof, is situated.

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CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

2. Rule 4, Sec. 2: Venue of personal actions.


All other actions may be commenced
and tried where the plaintiff or any of the
principal plaintiffs resides, or where the
defendant or any of the principal
defendants resides, or in the case of a
non-resident defendant where he may
be found, at the election of the plaintiff.
Governing Law
1. Immovables are governed by the law of the
country wherein they are located
2. Movables are governed by the personal
laws of the owner which in some cases is
the law of his nationality and in other cases,
the law of his domicile.
Action for Recovery of Possession
1. Possession of real property may be
recovered through accion reivindicatoria,
accion publiciana, forcible entry and
unlawful detainer.
2. Possession of movable property may be
recovered through replevin.

B. CLASSIFICATION BY OWNERSHIP
Article 419, Civil Code. Property is either of public
dominion or of private ownership.

Classifications
1. Administered by the State
a. For public usemay be used by
everybody, even by strangers or aliens,
in accordance with its nature but nobody
can exercise over it the rights of a
private owner.
b. For public servicemay be used only by
authorized persons but exists for the
benefit of all e.g. fortresses, unleased
mines and civil buildings
c. For development and national wealth
includes natural resources such as
minerals, coal, oil and forest
2. Administered by Municipal Corporations
Article 424, Civil Code. Property for public use, in
the provinces, cities, and municipalities, consist of
the provincial roads, city streets, municipal streets,
the squares, fountains, public waters, promenades,
and public works for public service paid for by said
provinces, cities, or municipalities.

Property of public dominion is outside the


commerce of man
They cannot be the subject matter of private
contracts,
cannot
be
acquired
by
prescription and they are not subject to
attachment and execution nor burdened with
a voluntary easement.

PROPERTY OF PUBLIC DOMINION


Article 420, Civil Code. The following things are
property of public dominion:
1. Those intended for public use, such as
roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks,
shores, roadsteads, and others of similar
character;
2. Those which belong to the State, without
being for public use, and are intended for
some public service or for the development
of the national wealth.
Public Dominion

As defined by Art. 420, CC

Public Domain

Used in Article XII, Section 2, of


the 1987 Constitution
Public Land Act

Public Lands

Characteristics of Public Dominion


1. Not owned by the State and its subdivisions
but pertains to it as territorial sovereign, to
hold in trust for the interest of the
community.
2. Intended for public use, and not for use by
the State as a juridical person
3. Cannot be the subject of appropriation either
by the State or by private persons

PRIVATE OWNERSHIP
Can be exercised by the State in its private
capacity or by private persons
Patrimonal Property of the State
Article 421, Civil Code. All other property of the
State, which is not of the character stated in the
preceding article, is patrimonial property.

1. Owned by the State over which it has the


same rights as private individuals in relation
to their own property
2. Subject to the administrative laws and
regulations on the procedure of exercising
such rights.
3. Examples: friar lands, escheated properties
and commercial buildings
4. Purpose of Patrimonial Property
a. Enables the State to attain its economic
ends
b. Serves as a means for the States
subsistence and preservation
c. Enables the State to fulfill its primary
mission
5. Conversion of Property of Public
Dominion to Patrimonial Property

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CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

Property of public dominion, when no


longer intended for public use or for
public service, shall form part of the
patrimonial property of the State [Art.
422, Civil Code]
6. Requires
a
Declaration
by
the
Government through its executive or
legislative departments to the effect that it is
no longer needed for public use or service.

Patrimonial
Property
Corporations

of

Municipal

Article 424(2), Civil Code. All other property


possessed by any of them [the provinces, cities, and
municipalities] is patrimonial and shall be governed
by this Code, without prejudice to the provisions of
special laws.

1. The province or municipality, as a juridical


entity, also possesses private property to
answer for its economic necessities.
2. Classification of Properties of provinces,
cities and municipalities (Salas v.
Jarencio)
a. Properties acquired with their own
funds in their private or corporate
capacity over which the political
subdivision has ownership and control
b. Properties of public dominion held in
trust for the States inhabitants are
subject to the control and supervision of
the State
3. A municipal corporation must prove that
they acquired the land with their own
corporate funds
The presumption is that land comes from the
State upon the creation of the municipality.
All lands in the possession of the
municipality, EXCEPT for those acquired
with its private funds, are deemed to be
property of public dominion, held in trust for
the State for the benefit of its inhabitants.
Congress has paramount power to dispose
of lands of public dominion in a municipality,
the latter being a subdivision only for
purposes of local administration. (Salas v.
Jarencio)
Private Property of Private Persons
Article 425, Civil Code. Property of private
ownership, besides the patrimonial property of the
State, provinces, cities, and municipalities, consists
of all property belonging to private persons, either
individually or collectively.

Refers to all property belonging to private


persons, natural or juridical, either

individually
property)

or

collectively

(co-owned

CONVERSION
Alienable Public Land converted to Private
Property through Prescription
Alienable public land held by a possessor
personally/through predecessors-in-interest,
openly, continuously and exclusively for 30
years is CONVERTED to private property by
the mere lapse or completion of the period.
The application for confirmation is mere
formality, because land had already been
converted, giving rise to a registrable title.
(Director of Lands v. IAC)
See New Law
Private Land converted to Property of Public
Dominion
through
abandonment
and
reclamation
Through the gradual encroachment or
erosion by the ebb and flow of the tide,
private property may become public IF the
owner appears to have ABANDONED the
land, and permitted it to be totally destroyed
so as to become part of the shore. The land
having disappeared on account of the
gradual erosion, and having remained
submerged until they were reclaimed by the
government,
they
are
public
land.
(Government v. Cabangis)

C. OTHER CLASSIFICATIONS
By their physical existence
1. Corporeal
All property the existence of which can be
determined by the senses (res qui tangi
possunt)
2. Incorporeal
a. Things having abstract existence,
created by man and representing value.
b. Includes rights over incorporeal things,
credits, and real rights other than
ownership over corporeal things.
By their autonomy or dependence
1. Principal
Those to which other things are considered
dependent or subordinated, such as the land
on which a house is built.
2. Accessory
Those which are dependent upon or
subordinated to the principal. They are
destined to complete, enhance or ornament
another property.

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PROPERTY

CIVIL LAW REVIEWER

By their subsistence after use


Article 418, Civil Code. Movable property is either
consumable or nonconsumable. To the first class
belong those movables which cannot be used in a
manner appropriate to their nature without their
being consumed; to the second class belong all the
others.

1. Consumable
a. Those whose use according to their
nature destroys the substance of the
thing or causes their loss to the owner.
(ex: food)
b. Consumable goods cannot be the
subject matter of a contract of
commodatum unless the purpose of
the contract is not the consumption of
the object, as when it is merely for
exhibition.
2. Non-consumable e.g. money in coin
Susceptibility to substitution
1. Fungibles
Things which because of their nature or the
will of the parties, are capable of being
substituted by others of the same kind, not
having a distinct individuality.
2. Non-Fungibles
Things which cannot be substituted for
another
Consumable v. Fungible: It is the intention
of the parties to a contract which determines
whether the object is fungible or nonfungible and not the consumable or nonconsumable nature of the thing.
By susceptibility to deterioration
1. Deteriorable that deteriorate through use or
by time
2. Non-deteriorable
By reason of their susceptibility to division
1. Divisible
Those which can be divided physically or
juridically without injury to their nature. E.g.:
piece of land or an inheritance.
2. Indivisible
Those which cannot be divided without
destroying their nature or rendering
impossible the fulfillment of the juridical
relation of which they are object.
By reason of designation
1. Generic
That which indicates its homogenous nature,
but not the individual such as a horse,
house, dress, without indicating it.

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

2. Specific
That which indicates the specie or its nature
and the individual, such as the white horse
of X.
Existence in point of time
1. Present
Those which exist in actuality, either
physical or legal, such as, the erected
building.
2. Future
Those which do not exist in actuality, but
whose existence can reasonably be
expected with more or less probability, such
as ungathered fruits.

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Chapter II. OWNERSHIP

Right to Self Help

I.
II.
III.
IV.

DEFINITION
BUNDLE OF RIGHTS IN OWNERSHIP
SPECIFIC RIGHTS OF THE OWNER
LIMITATIONS
ON
THE
RIGHTS
OWNERSHIP

I.

Definition

OF

Independent
right
of
exclusive
enjoyment and control of a thing
For the purpose of deriving all
advantages required by the reasonable
needs of the owner/holder of right and
promotion of general welfare
A thing pertaining to one person
Completely subjected to his will
In everything not prohibited by public
law or the rights of another

II. Rights Included in Ownership


Art. 428, Civil Code
1. The owner has the right to enjoy and
dispose of a thing, without other limitations
than those established by law.
2. The owner has also a right of action against
the holder and possessor of the thing in
order to recover it.
5 + 1 BUNDLE OF RIGHTS
1. Jus Utendi: Right to enjoy and receive what
the property produces
2. Jus Fruendi: Right to receive fruits
3. Jus Abutendi: Right to consume a thing by
use
1. Jus Disponendi: Right to to alienate,
encumber, transform or even
destroy the thing owned
2. Jus Vindicandi: Right to recover
possession of property based on a
claim of ownership
4. Jus Possidendi: Right to possess the
property (Implied from all the other rights)

III. Specific Rights under the Civil Code


Specific Rights
1. Right to Self Help
2. Right to Enclose of Fence
3. Right to Receive Just Compensation
4. Right to Accession
5. Right to Space and Subsoil
6. Right to Hidden Treasure
7. Right to Recover Possession

Article 429, Civil Code. The owner or lawful


possessor of a thing has the right to exclude any
person from the enjoyment and disposal therof. For
this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or
usurpation of his property.

1. Authorizes the lawful possessor to use


force, to prevent a threatened lawful
invasion or usurpation
2. Requisites
a. Lawful possession
b. Actual or threatened unlawful physical
invasion or usurpation of his property
Must not be a valid exercise of right
or public function
c. Force used is reasonably necessary to
repel or prevent the aggression (least
damage rule)
d. Physical invasion must not have
succeeded yet, and possession has not
been lost
Once property is lost, the owner can
no longer use force, but must file
action to recover
Right to Enclose or Fence
Article 430, Civil Code. Every owner may enclose
or fence his land or tenements by means of walls,
ditches, live or dead hedges, or by any other means
without detriment to servitudes constituted thereon.

But right is limited by servitudes existing


thereon
The owner of lower lands cannot erect
works that will impede or prevent such an
easement or charge, constituted and
imposed by the law upon his estate for the
benefit of higher lands belonging to different
owners; neither can the latter do anything to
increase or extend the easement. It is true
that the Code authorizes every owner to
enclose his estate by means of walls,
ditches, fences or other device, but this right
is limited by the easement imposed upon his
estate. (Lunod v. Meneses)

Right to Receive Just Compensation (in case


of expropriation)
Article 435, Civil Code. No person shall be
deprived of his property except by competent
authority and for public use and always upon
payment of just compensation.
Should this requirement be not first complied with,
the courts shall protect and, in a proper case,
restore the owner in his possession.

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PROPERTY

Chapter II. Ownership

Requisites of a Valid Expropriation


a. For public use or utility
b. Necessity of expropriation: reasonable
in view of purpose of the taking
c. Just compensation: Market value +
consequential damages

Right to Accession
Article 440, Civil Code. The ownership of property
gives the right by accession to everything which is
produced thereby, or which is incorporated or
attached thereto, either naturally or artificially.

Right to Space and Subsoil


1. Ownership of surface and everything under
the property
a. Can construct works, make plantings
and excavations
b. Respecting servitudes and reasonable
requirements of aerial navigation
c. Easement of lateral and subjacent
support
2. Subject to laws and ordinances
The doctrine that ownership of the land
extends to the periphery of the universe
(Cujus est solum ejus est usque ad
coelum, usque ad infernos) is no longer
applied in the modern world, in view of the
doctrine that the air is a public highway. (US
v. Causby)
Right to Hidden Treasure
Article 438, Civil Code. Hidden treasure belongs to
the owner of the land, building, or other property on
which it is found.
Nevertheless, when the discovery is made on the
property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall
be allowed to the finder. If the finder is a trespasser,
he shall not be entitled to any share of the treasure.
If the things found be of interest to science or the
arts, the State may acquire them at their just price,
which shall be divided in conformity with the rule
stated.
Article 439, Civil Code. By treasure is understood,
for legal purposes, any hidden and unknown deposit
of money, jewelry or other precious objects, the
lawful ownership of which does not appear

1. Legal concept of hidden treasure


a. Consist of money jewels or other
precious objects
b. Hidden and unknown, such that the
finding is a real discovery
2. Owner also owns hidden treasure found in
the land subject to:

Chapter II. OWNERSHIP

a. Right of a finder by chance who is not a


trespasser/intruder: of treasure
b. Right of a usufructuary who finds
treasure: of treasure
c. Right of State to acquire things of
interest to science or the arts
Right to Recover Possession
1. Movable Property: Replevin
for manual delivery of property
Prescription of Right: 4 years (GF) or 8
years (BF)
2. Immovable Property
a. Accion Reinvindicatoria: Recovery of
ownership of real property
Including but not limited to possession
Prescription of Action: 30 years
b. Accion Publiciana: Recovery of a better
right to possess (de jure)
Judgment as to who has the better
right of possession
Also, actions for ejectment not filed
within 1 year must be filed as accion
publiciana
Prescription: 10 years
c. Accion
Interdictal:
Recovery
of
actual/physical possession (de facto)
FORCIBLE ENTRY: Lawful possessor
deprived through FISTS:
o FISTS
(Force,
Intimidation,
Strategy, Threats, Stealth)
o Prescription: 1 year from
dispossession (force,
intimidation, threats) or from
knowledge of dispossession
(strategy, stealth)
UNLAWFUL DETAINER: Possessor
refused to vacate upon demand by
owner
o Legal
possession
(by
permission/tolerance) becomes
unlawful upon failure to vacate
o Prescription of action: 1 year
from last notice to vacate
In case of leases of residential units, the
grounds for judicial ejectment are limited to
those enumerated in, RA 9653: Rent
Control Law of 2009 (See Section on
Special Laws)
3. Requisites for Recovery [Art. 434, Civil
Code]
a. Property must be identified
Through a relocation survey and a title
properly identifying boundaries and
location

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Chapter II. OWNERSHIP

b. Plaintiff must rely on the strength of his


title and not on weakness of defendants
title
Right must be founded on positive title
and not on lack or insufficiency of
defendants
Ei incumbit probatio qui dicit, non
qui negat: He who asserts, not he
who denied must prove

IV. Limitations
Ownership

on

Real

Right

of

Limitations Provided by Law


1. In General
a. Police Power: Property taken with no
compensation for general welfare
When any property is condemned or
seized by competent authority in the
interest of health, safety or security,
the owner thereof shall not be entitled
to compensation, unless he can show
that such condemnation or seizure is
unjustified. [Art. 436, Civil Code]
Requisites: To justify the exercise of
police power, the following must
appear:
o The interests of the public
generally,
require
such
interference (as distinguished
from those of a particular class)
o The means are reasonably
necessary
for
the
accomplishment of a purpose,
and not unduly oppressive
b. Taxation: Forced contribution to the
operation of government
c. Eminent Domain: Property taken for
public use/purpose, but subject to due
process
and
payment
of
just
compensation
Requisites To justify the exercise of
the right of eminent domain, the
following requisites must all be
present:
o Private property as the object of
the expropriation;
o The property is taken by the
State or by competent authority;
o The purpose of the taking is for
public use;
o The taking must be attended
with due process of law;
o There is payment of just
compensation

2. Specific Limitations
a. Legal Servitudes: once requisites are
satisfied, the servient owner may ask
the Court to declare the existence of an
easement
Art. 644 & 678: Aqueduct
Art. 679: Planting of trees
Art. 670: Light and View
Art. 649 & 652: Right of Way
Art. 637: Passage of water from upper
to lower tenements
Art. 676: Drainage of buildings
Art. 684-687: Lateral and subjacent
support
b. Must not injure the rights of a third
person
Sic Utere Tuo Ut Alienum Non
Laedas
The owner of a thing cannot make use
thereof in such manner as to injure the
rights of a third person. [Art. 431, Civil
Code]
c. Act in State of Necessity
The owner of a thing has no right to
prohibit the interference of another with
the same, if the interference is
necessary to avert an imminent danger
and the threatened damage, compared
to the damage arising to the owner from
the interference, is much greater. The
owner may demand from the person
benefited, indemnity for the damage to
him. [Art. 432, Civil Code]

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CIVIL LAW REVIEWER

Chapter III. ACCESSION

Chapter III. Accession

Industrial fruits are those produced by lands of any


kind through cultivation or labor.

I.
II.
III.
IV.

Civil fruits are the rents of buildings, the price of


leases of lands and other property and the amount
of perpetual or life annuities or other similar income.

V.

DEFINITION
GENERAL PRINCIPLES OF ACCESSION
KINDS OF ACCESSION
PRINCIPLES APPLICABLE TO EACH
A. PRINCIPLES
APPLICABLE
ACCESSION DISCRETA
B. PRINICPLES
APPLICABLE
ACCESSION CONTINUA
ACCESSION OVER MOVABLES

I.

Definition

TO
TO

ACCESSION: Owner of a thing becomes the


owner of everything that it may produce or which
may be inseparably united or incorporated
thereto, either naturally or artificially

II. General Principles of Accession


1. Accessory follows the principal: presumption
of ownership of both principal and accessory
2. No one shall be unjustly enriched at the
expense of another: right to acquire but with
duty to reimburse

III. Kinds of Accession


1. Accession Discreta
a. Natural
b. Industrial
c. Civil
2. Accession Continua
a. Over Immovables
Industrial
Natural
o Alluvion
o Avulsion
o Change of Course of River
o Formation of Islands
b. Over Movables
Conjunction and Adjunction
Commixtion and Confusion
Specification

IV. Principles Governing Each Kind of


Accession
A. Accession Discreta
Accession Discreta: Accession of Fruits
Article 441, Civil Code. To the owner belongs:
1. The natural fruits;
2. The industrial fruits;
3. The civil fruits.
Article 442, Civil Code. Natural fruits are the
spontaneous products of the soil, and the young and
other products of animals.

1. Accession Discreta Natural


Article 444, Civil Code. Only such as are manifest
or born are considered as natural or industrial fruits..

a. Spontaneous products of the soil


without the intervention of man
b. The young of animals
Products of animals which can be
removed without killing the principal
(e.g. fleece, wool, milk, etc. but not
meat, fur, hide)
Time of Accrual depending on kind:
2. Accession Discreta Industrial: Refers to
fruits produced by the land through labor
and cultivation
3. Accession Discreta Civil: Refers to rentals
of a movable or an immovable
Principles
Applicable
to
Accession
Discreta
1. Time of Accrual depending on kind:
a. Annuals: from the time seedlings
appear on the ground
b. Perennials: from the time fruits actually
appear on the plants
c. Young of animals: from the time they
are in the womb, although unborn
beginning of maximum ordinary period
of gestation
d. Fowls: from the time of incubation
2. A receiver of fruits has the obligation to pay
the expenses incurred by a third person in
the production, gathering and preservation.
(Art. 443, Civil Code)
Exception: Receiver does not have to
pay if fruits are recovered before
gathering from a possessor in bad
faith, receiver does NOT have to pay
indemnity
But if recovered after fruits have been
gathered, receiver must pay since the
fruits have been separated from
immovable, hence accession principles
will not apply
Accession Continua over Immovables:
Accession by Attachment/Incorporation
1. Accession Continua Artificial or
Industrial: Building, planting or sowing on
land owned by another (over immovables)
a. GENERAL RULE: Whatever is built,
planted or sown on the land of another +

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Chapter III. ACCESSION

improvements or repairs made thereon,


belong to the owner of the land subject
to the rules on BPS.
b. PRESUMPTIONS:
All works, sowing and planting are
presumed made by the owner
All works are presumed made at the
owners expense, unless the contrary
is proved
The owner of the principal thing owns
the natural, industrial and civil fruits,
except when the following persons
exist:
o Possessor in Good Faith
o Usufructuary
o Lessee
o Antichretic creditor
c. Meaning of BAD FAITH
Bad faith
o On the part of the landowner:
Whenever the building, planting

or sowing was done with the


knowledge
and
without
opposition on his part
o On the part of owner of
materials: Allows the use of his
materials without protest
o On the part of the builder,
planter and sower: Knows that
he does not have title to the
land, nor the right to build
thereon OR no permission of
the owner of the materials to
pay their value
Bad faith leads to liability for
damages and the loss of the works or
the
improvement
without
reimbursement
Bad faith of one party neutralizes the
bad faith of the other

SUMMARY OF BUILDER, PLANTER AND SOWER PROVISIONS


ART. 447-455
Case 1: Landowner is BPS using material of another
Landowner and BPS
Good faith
Right to acquire the improvements after paying the
value of materials.

Bad faith
Acquire BPS after paying its value and paying
indemnity for damages (Article 447) but subject to
OMs right to remove
Good faith
Right to acquire the improvements without paying
indemnity
Right to acquire indemnity for damages if there are
hidden defects known to OM
Bad faith
Same as though acted in good faith under Article 453

Owner of Material
Good faith

Limited right of removal if there would be no injury


to work constructed, or without plantings or
constructions being destroyed. (Article 447)

Right to receive payment for value of materials


Good faith

Right to receive payment for value of materials

Absolute right of removal of the work constructed in


any event

Right to be indemnified for damages


Bad faith

Lose materials without right to indemnity

Bad faith

Same as though acted in good faith under Article


453

Case 2: BPS builds, plants, or sows on anothers ;and using his own materials
Landowner
Good faith

Landowner has option to:


a. Acquire the improvement after paying
indemnity which may be the original cost of
improvement OR increase in value of the whole
brought about by the improvement
b. Sell the land to the BP or collect rent from
sower UNLESS value of land is more than the
thing built, planted or sown or BP shall pay rent
fixed by parties or by the court in case of

BPS and Owner of Material


Good faith

BPS has right to retain (right of retention) the land


until the payment of indemnity
NOTE: During this period BPS is not required to pay
rent.

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Chapter III. ACCESSION

Bad faith

Pay damages to landowner

BPS lose materials without right to indemnity

No right to refuse to buy the land

Recover necessary expenses for preservation of


land

149

Landowner must pay for necessary expenses for


preservation
Bad faith

Landowner must indemnify BPS for the


improvements and pay damages as if he himself did
the BPS

Landowner has no option to sell the land and


cannot compel BPS to buy the land unless BPS
agrees to
Bad faith

Same as though acted in bad faith under Article 453

Good faith

BPS has right to :


a. Be indemnified for damages
b. Remove all improvements in any event

Bad faith

Same as though acted in bad faith under Article 453

Case 3: BPS builds, plants or sows on anothers land with materials owned by third persons
Landowner
Good faith

Right to acquire improvements


and pay indemnity to BPS;
subsdiarily liable to OM

Has option to:


a. Sell land to BP except if the
value of the land is
considerably more
b. Rent to sower
Good faith

Right to acquire improvements


and pay indemnity to BPS

Has option to:


a. Sell land to BP except if the
value of the land is
considerably more
b. Rent to sower

Without subsidiarily liability for


cost of materials
Good faith

Landowner has right to collect


damages in any case and
option to:
a. Acquire improvements w/o
paying for indemnity; or
b. Demolition or restoration;
or
c. Sell to BP, or to rent to
sower

Pay necessary expenses to


BPS
Bad faith

Same as when all acted in good


faith under Article 453

BPS
Good faith

Right of retention until


necessary and useful expenses
are paid

Pay value of materials to OM

Owner of Material
Good faith

Collect value of material


primarily from BPS and
subsidiarily liable for landowner
if BPS is insolvent

Limited right of removal

Good faith

Right of retention until


necessary and useful expenses
are paid.

Keep BPS without indemnity to


OM and collect damages from
him

Bad faith

Lose the material without right


to indemnity

Must pay for damages to BPS

Bad faith

Recover necessary expenses


for preservation of land from
landowner unless landowner
sells land

Bad faith

Recover value from BPS (as if


both are in good faith)

If BPS acquires improvement,


remove materials if feasible w/o
injury

No action against landowner but


liable to landowner for damages

Bad faith

Same as when all acted in good


faith under Article 453

Bad faith

Same as when all acted in good


faith under Article 453

PROPERTY

disagreement.
NOTE: Landowner can be forced to choose under pain
of direct contempt or court can choose for him.
Good faith

Landowner has right to collect damages in any case


and option to:
a. Acquire improvements without paying
indemnity if the improvements are still standing
on the land
b. Sell the land to BP or collect rent from the
sower unless value of the improvements in
which case there will be a forced lease
c. Order demolition of improvements or
restoration o0f land to its former condition at
the expense of the BPS

CIVIL LAW REVIEWER

Good faith

May remove improvements

Be indemnified for damages in


any event

Good faith

Remove materials if possible


w/o injury

Collect value of materials from


BPS; subsidiarily from
landowner

Bad faith

Right of retention until


necessary expenses are paid

Pay value of materials to OM


and pay him damages

Good faith

Collect value of materials


primarily from BPS and
subsidiarily from landowner

Collect damages from BPS

If BPS acquires improvements,


remove materials in any event

Bad faith

Right of retention until


necessary expenses are paid

Pay value of materials to OM

Pay damages to OM

Good faith

Collect value of materials


primarily from BPS and
subsidiarily from landowner

Collect damages from BPS

If BPS acquires improvements,


absolute right of removal in any
event

Good faith

Receive indemnity for damages

Absolute right of removal of


improvements in any event

Bad faith

No right to indemnity

Loses right to mnaterial

150

2. Accession Continua Natural: Land


deposits, etc.
a. ALLUVIUM: Soil is gradually deposited
on banks adjoining the river
REQUISITES
o Deposit of soil or sediment is
gradual and imperceptible
o As a result of the action of the
currents of the waters of the
river
o Land where the accretion takes
place is adhacent to the banks
of the rivers
o Deemed to Exist: When the
deposit of the sediment has
reached a level higher than the
highest level of the water during
the year
EFFECT
o Land automatically owned by
the riparian owner
o BUT does not automatically
become registered property
RATIONALE
o To offset the owners loss from
possible erosion due to the
current of the river

Compensate for the subjection


of the land to encumbrances
and legal easements
b. AVULSION: A portion of land is
segregated from one estate by the
forceful current of a river, creek or
torrent and transferred to another
REQUISITES
o Segregation and transfer of land
is sudden and abrupt
o Caused by the current of the
water
o Portion of land transported must
be known and identifiable
OR
o Can also apply to sudden
transfer by other forces of
nature such as land transferred
from a mountain slope because
of an earthquake
RESULT: The ownership of the
detached property is retained by the
owner subject to removal within 2
years from the detachment
o

PROPERTY

Bad faith

Acquire improvement after


paying indemnity and damages
to BPS unless latter decides to
remove

Subsidiarily liable to OM for


value of materials
Bad faith

Acquire improvements after


indemnity; subsidiarily liable to
OM for value of materials

Has option to:


a. Sell the land to BP except if
the value of the land is
considerably more
b. Rent to sower
Good faith

Acquire imrovement after


paying indemnity; subsidiarily
liable to OM

Landowner has option to:


a. Sell land to BP except if
value of land is
considerably more
b. Rent to sower
Bad faith

Acquire improvements and pay


indemnity and damages to BPS
unless latter decides to remove
materials

Chapter III. ACCESSION

c.

CHANGE OF COURSE OF RIVER


REQUISITES
o Change in the natural course of
the waters of the river
o Such change causes the
abandonment of the river beds
Natural Bed: ground
covered by its waters
during ordinary floods
o Such change is sudden or
abrupt
RESULTS:
o Owners whose lands are
occupied by the new course
automatically become owners of
the old bed, in proportion to the
area they lost
o Owners of the lands adjoining
the old bed are given the right to
acquire the same by paying the
value of the land
Not exceeding the value
of the land invaded by
the new bed (the old
property of the owner)
o The new bed opened by the
river on a private estate shall
become of public dominion

d. FORMATION OF ISLANDS
Belong to the State if:
o Formed on the SEAS within the
jurisdiction of the Philippines
o Formed on LAKES
o Formed on NAVIGABLE or
FLOATABLE RIVERS
Capable of affording a
channel or passage for
ships and vessels
Must be sufficient not only
to float bancas and light
boats, but also bigger
watercraft
Deep enough to allow
unobstructed movements of
ships and vessels
TEST: can be used as a
highway of commerce, trade
and travel
Belong to the Owners of the nearest
margins or banks if
o Formed through successive
accumulation of alluvial deposits
o On
NON-NAVIGABLE
and
NON-FLOATABLE RIVERS
If island is in the middle:
divided longitudinally in half.

Chapter III. ACCESSION

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CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

I.
II.
III.
IV.

V.

IN GENERAL
PURPOSE
NATURE
REQUISITES
A. THERE IS A CLOUD ON TITLE TO REAL
PROPERTY
B. THE PLAINTIFF MUST HAVE LEGAL OR
EQUITABLE TITLE TO OR INTEREST IN
THE PROPERTY
C. PLAINTIFF
MUST
RETURN
THE
BENEFITS
RECEIVED
FROM
THE
DEFENDANT
PRESCRIPTION

Article 476, Civil Code. Whenever there is a cloud


on title to real property or any interest therein, by
reason of any instrument, record, claim,
encumbrance or proceeding which is apparently
valid or effective but is in truth and in fact invalid,
ineffective, voidable, or unenforceable, and may be
prejudicial to said title, an action may be brought to
remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud
from being cast upon title to real property or any
interest therein.
Article 478, Civil Code. There may also be an
action to quiet title or remove a cloud therefrom
when the contract, instrument or other obligation has
been extinguished or has terminated, or has been
barred by extinctive prescription.

I.

In General

1. Applicable to real property


2. Basis: Equity comes to the aid of the plaintiff
who would suffer if the instrument (which
appear to be valid but is in reality void,
ineffective, voidable or unenforceable) was
to be enforced.

II. Purpose
1. To declare:
a. The invalidity of a claim on a title
b. The invalidity of an interest in property
2. To free the plaintiff and all those claiming
under him any hostile claim on the property.

III. Nature: Quasi in Rem


1. A suit against a particular person or persons
in respect to the res and the judgment will
apply only to the property in dispute.
2. The action to quiet title are characterized as
proceedings quasi in rem. Technically, they
are neither in rem nor in personam. In an
action quasi in rem, an individual is named

as defendant. However, unlike suits in rem,


a quasi in rem judgment is conclusive only
between the parties. (Spouses Portic v.
Cristobal)
Justifications for quieting of title
1. To prevent future or further litigation on the
ownership of the property
2. To protect the true title and possession
3. To protect the real interest of both parties
4. To determine and make known the precise
state of the title for the guidance of all
The action to quiet title does not apply
1. To questions involving interpretation of
documents
2. To mere written or oral assertions of claims
a. Unless made in a legal proceeding
b. Or asserting that an instrument or entry
in plaintiffs favor is not what it purports
to be
3. To boundary disputes
4. To deeds by strangers to the title unless
purporting to convey the property of the
plaintiff
5. To instruments invalid on their face
6. Where the validity of the instrument involves
a pure question of law

IV. Requisites
REQUISITES OF AN ACTION TO QUIET
TITLE
1. There is a CLOUD on title to real property or
any interest to real property.
2. The plaintiff must have legal or equitable title
to, or interest in the real property.
3. Plaintiff must return the benefits received
from the defendant.
A. There is a CLOUD on title to real property
or any interest to real property
1. Cloud on title means a semblance of title,
either legal or equitable, or a claim or a right
in real property, appearing in some legal
form but which is, in fact, invalid or which
would be inequitable to enforce.
2. A cloud exists if:
a. There is a claim emerging by reason of:
Any instrument e.g. a contract, or
any deed of conveyance, mortgage,
assignment, waiver, etc. covering the
property concerned
Any record, claim, encumbrance
e.g. an attachment, lien, inscription,
adverse claim, lis pendens, on a title
Any proceeding e.g. an extrajudicial
partition of property

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Chapter IV. Quieting of Title

Chapter IV. QUIETING OF TITLE

b. The claim should appear valid or


effective and extraneous evidence is
needed to prove their validity or
invalidity.
Test: Would the owner of the property
in an action for ejectment brought by
the adverse party be required to offer
evidence to defeat a recovery?
As a general rule, a cloud is not
created by mere verbal or parole
assertion of ownership or an interest
in property.
c. Such instrument, etc. is, in truth and in
fact, invalid, ineffective, voidable, or
unenforceable,
or
has
been
extinguished or terminated, or has been
barred by extinctive prescription.
d. Such instrument, etc. may be prejudicial
to the true owner or possessor.
B. The plaintiff must have legal or equitable
title to, or interest in the real property
Article 477, Civil Code. The plaintiff must have
legal or equitable title to, or interest in the real
property which is the subject matter of the action. He
need not be in possession of said property.

1. Legal title: the party is the registered owner


of the property.
2. Equitable title: the person has the
beneficial ownership of the property.

Chapter IV. QUIETING OF TITLE

assailed before taking steps to vindicate


his right.
b. An action to quiet title to property in
ones possession is imprescriptible.
The rationale for this rule has been
aptly stated thus: The owner of real
property who is in possession thereof
may wait until his possession is invaded
or his title is attacked before taking
steps to vindicate his right. A person
claiming title to real property, but not in
possession
thereof,
must
act
affirmatively and within the time
provided by the statute. Possession is a
continuing right as is the right to defend
such possession. So it has been
determined that an owner of real
property in possession has a continuing
right to invoke a court of equity to
remove a cloud that is a continuing
menace to his title. Such a menace is
compared to a continuing nuisance or
trespass which is treated as successive
nuisances or trespasses, not barred by
statute
until
continued
without
interruption for a length of time sufficient
to affect a change of title as a matter of
law." (Pingol v. CA)

C. Plaintiff must return the benefits received


from the defendant

2. When the plaintiff is not in possession of


the property, the action to quiet title may
prescribe.
a. 10 yrs. ordinary prescription
b. 30 yrs. extraordinary prescription

Article 479, Civil Code. The plaintiff must return to


the defendant all benefits he may have received
from the latter, or reimburse him for expenses that
may have redounded to the plaintiffs benefit.

Article 480, Civil Code. The principles of the


general law on the quieting of title are hereby
adopted insofar as they are not in conflict with this
Code.

NOTE: REQUISITES OF AN ACTION TO


PREVENT A CLOUD
1. Plaintiff has a title to a real property or
interest therein
2. Defendant is bent on creating a cloud on the
title or interest therein. The danger must not
be merely speculative or imaginary but
imminent.
3. Unless the defendant is restrained or
stopped, the title or interest of the plaintiff
will be prejudiced or adversely affected.

Article 481, Civil Code. The procedure for the


quieting of title or the removal of a cloud therefrom
shall be governed by such rules of court as the
Supreme Court shall promulgate.

V. Prescription of Action
1. When plaintiff is in possession of the
property the action to quiet title does not
prescribe.
a. The reason is that the owner of the
property or right may wait until his
possession is disturbed or his title is

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I.
II.

DEFINITION
CHARACTERTISTICS
A. THERE IS A PLURALITY OF OWNERS
BUT ONLY ONE REAL RIGHT OR
OBJECT OF OWNERSHIP.
B. THE RECOGNITION OF IDEAL SHARES
OR ALIQUOT DEFINED BUT NOT
PHYSICALLY IDENTIFIED
C. EACH CO-OWNER HAS ABSOLUTE
CONTROL OVER HIS IDEAL SHARE
D. MUTUAL RESPECT AMONG CO-OWNERS
IN REGARD TO USE, ENJOYMENT AND
PRESERVATION OF THE THINGS AS A
WHOLE.
III. DIFFERENCE BETWEEN CO-OWNERSHIP
AND JOINT TENANCY
IV. DIFFERENCE BETWEEN CO-OWNERSHIP
AND PARTNERSHIP
V. SOURCES OF CO-OWNERSHIP
A. LAW
1. COHABITATION
2. PURCHASE
3. INTESTATE SUCCESSION
4. DONATION
5. CHANCECOMMIXTION IN GOOD
FAITH
6. HIDDEN TREASURES
7. EASEMENT OF PARTY WALL
8. OCCUPATIONHARVESTING
AND
FISHING
9. CONDOMINIUM LAW
B. CONTRACTS
1. BY AGREEMENT OF 2 OR MORE
PERSONS
2. BY UNIVERSAL PARTNERSHIP
3. BY ASSOCIATION AND SOCIETIES
WITH SECRET ARTICLES
VI. RIGHTS OF EACH CO-OWNER OVER THE
THING OR PROPERTY OWNED IN COMMON
A. TO USE THE THING ACCORDING TO THE
PURPOSE INTENDED
B. TO SHARE IN THE BENEFITS IN
PROPORTION
TO
HIS
INTEREST,
PROVIDED THE CHARGES ARE BORNE
BY EACH IN THE SAME PROPORTION
C. TO BRING AN ACTION IN EJECTMENT
D. TO COMPEL THE OTHER CO-OWNERS
TO CONTRIBUTE TO THE EXPENSES
FOR THE PRESERVATION OF THE
PROPERTY OWNED IN COMMON AND TO
THE PAYMENT OF TAXES
E. TO OPPOSE ANY ACT OF ALTERATION
F. TO PROTEST AGAINST ACTS OF
MAJORITY WHICH ARE SERIOUSLY
PREJUDICIAL TO THE MINORITY
G. TO EXERCISE LEGAL REDEMPTION
H. TO ASK FOR PARTITION
VII. IMPLICATIONS OF CO-OWNERS RIGHT
OVER HIS IDEAL SHARE
A. RIGHTS OF A CO-OWNER
B. EFFECT OF TRANSACTION BY EACH COOWNER
VIII. RULES
ON
CO-OWNERSHIP
NOT

APPLICABLE TO CPG OR ACP


IX. SPECIAL RULES ON OWNERSHIP OF
DIFFERENT STORIES OF A HOUSE AS
DIFFERENTIATED FROM THE PROVISIONS
OF THE CONDOMINIUM ACT
X. EXTINGUISHMENT OF CO-OWNERSHIP
A. TOTAL DESTRUCTION OF THE THING OR
LOSS OF THE PROPERTY CO-OWNED
B. MERGER OF ALL INTERESTS IN ONE
PERSON
C. ACQUISITIVE PRESCRIPTION
D. PARTITION OR DIVISION

I.

Definition

Article 484, Civil Code. There is co-ownership


whenever the ownership of an undivided thing or
right belongs to different persons.
In default of contracts, or of special provisions, coownership shall be governed by the provisions of
this Title.

II. Characteristics
A. There is a plurality of owners but only
one real right or object of ownership
1. There are at least 2 persons
2. There is unity or material indivision of a
single object.
B. There are ideal shares defined but not
physically identified
Article 485, Civil Code. The share of the coowners, in the benefits as well as in the charges,
shall be proportional to their respective interests.
Any stipulation in a contract to the contrary shall be
void.
The portions belonging to the co-owners in the coownership shall be presumed equal, unless the
contrary is proved.

C. Each co-owner has absolute control over


his ideal share
Every co-owner has absolute ownership
of his undivided interest in the co-owned
property and is free to alienate, assign
or mortgage his interest except as to
purely personal rights. While a coowner has the right to freely sell and
dispose of his undivided interest,
nevertheless, as a co-owner, he cannot
alienate the shares of his other coowners nemo dat qui non habet.
(Acabal v. Acabal)

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Chapter V. Co-Ownership

Chapter V. CO-OWNERSHIP

CIVIL LAW REVIEWER

Chapter V. CO-OWNERSHIP

III. Difference between


and Joint Tenancy
Co-Ownership

Co-ownership

Joint Tenancy
Origin

Civil Law

Common Law
Other names
Tenancy in Common,
Joint ownership,
ownership in common,
all for one, one for all
Co-dominium
Extent of ownership
Every joint tenant owns
Each co-owner owns
the whole property
undivided thing + own
because their rights are
ideal part/share of each
inseparable
Right to dispose of share
A joint tenant may not
dispose of his
Each co-owner may
share/interest without the
dispose of his undivided
consent of others
share without the consent
(rationale: he may
of others.
prejudice the others by
alienating his share)
Effect of death
The ownership of a joint
tenant dies with him, and
his surviving joint tenants
The share of a co-owner
are subrogated to his
descends to his heirs
rights by virtue of jus
accrescendi
(survivorship)
Effect of legal disability/incapacity
Defense of one can be
Defense against
used by all, as
prescription is exclusive
disability/incapacity
to the co-owner with
inures to the benefit of
disability/incapacity
the others for purposes of

prescription

IV. Difference between


and Partnership

Co-ownership

Co-ownership

Partnership
Creation
By law, fortuitous event,
occupancy, succession
Only by contract
or contract (no formalities
of a contract necessary)
Legal personality
Partnership has a distinct
Co-ownership has no
personality from the
legal personality
partners
Purpose
Collective enjoyment of
Profit or advancement of
the property
pecuniary interest
Disposal of share
A partner may not
Each co-owner may
dispose of his
dispose of his undivided
share/interest or transfer
rd
share without the consent
the same to a 3 person
of others
without the consent of
others
Mutual representation
No mutual representation
Generally, a partner
(except if there is a
binds other partners
special authority for such
(there is mutual
representation)
representation)
Effect of legal disability/ incapacity/ death
Does not dissolve the coDissolves partnership
ownership
Profit distribution
Must be proportional to
Depends upon the
the interest of each costipulation in their
owner (not subject to
contract
stipulation)
Duration
General rule: an
agreement to keep the
No term limit set by law
ownership for more than
10 years is void
Attachment
Creditors of a partner
Creditors of a co-owner
cannot attach and sell on
can attach on the shares
execution the shares of
of others
other partners in the
partnership

V. Sources of Co-Ownership
A. Law
1. Cohabitation:
co-ownership
between
common law spouses
The Family Code, in the following
provisions, made the rules on coownership apply
Article 147: between a man and a
woman capacitated to marry each
other

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PROPERTY

D. Mutual respect among co-owners in


regard
to
use,
enjoyment
and
preservation of the things as a whole
1. The property or thing held pro-indiviso is
impressed with a fiduciary character:
each co-owner becomes a trustee for
the benefit of his co-owners and he may
not do any act prejudicial to the interest
of his co-owners.
2. Until a judicial division is made, the
respective part of each holder cannot be
determined. The effects of this would be:
a. Each co-owner exercises together
with the others joint ownership
over the pro indiviso property, in
addition to his use and enjoyment of
the same
b. Each co-owner may enjoy the whole
property and use it.
Only limitation: a co-owner cannot use
or enjoy the property in a manner that
shall injure the interest of his other coowners. (Pardell v. Bartolome)

Article 148: between a man and a


woman not capacitated to marry each
other
Article 90: if matter is not provided in
the FC Chapter on ACP, then rules on
co-ownership will apply
2. Purchase creating implied trust: coownership between persons who agree to
purchase property
Article 1452, Civil Code. If two or more
persons agree to purchase property and
by common consent the legal title is
taken in the name of one of them for the
benefit of all, a trust is created by force
of law in favor of the others in proportion
to the interest of each.
3. Intestate
succession:
co-ownership
between the heirs before partition of the
estate
a. Article 1078, Civil Code. Where there
are two or more heirs, the whole estate
of the decedent is, before its partition,
owned in common by such heirs, subject
to the payment of debts of the
deceased.
b. Intestate Succession (without will)
c. For as long as the estate is left
undivided the heirs will be considered
co-owners of the inheritance. If one of
the heirs dies, his heirs will in turn be coowners of the surviving original heirs.
4. Donation: Co-ownership between donees
Article 753, Civil Code. When a
donation is made to several persons
jointly, it is understood to be in equal
shares, and there shall be no right of
accretion among them, unless the donor
has otherwise provided.
5. Chance/Commixtion in Good Faith: Coownership between owners of 2 things that
are mixed by chance or by will of the owners
Article 472, Civil Code. If by the will of
their owners two things of the same or
different kinds are mixed, or if the
mixture occurs by chance, and in the
latter case the things are not separable
without injury, each owner shall acquire
a right proportional to the part belonging
to him, bearing in mind the value of the
things mixed or confused.
6. Hidden Treasure co-ownership between
finder and owner of the land
Article 438, Civil Code. Hidden
treasure belongs to the owner of the
land, building, or other property on
which it is found.

Chapter V. CO-OWNERSHIP

Nevertheless, when the discovery is


made on the property of another, or
of the State or any of its
subdivisions, and by chance, one-half
thereof shall be allowed to the finder. If
the finder is a trespasser, he shall not be
entitled to any share of the treasure.
If the things found be of interest to
science or the arts, the State may
acquire them at their just price, which
shall be divided in conformity with the
rule stated.
7. Easement of Party Wall co-ownership
of part-owners of a party wall
Article 658, Civil Code. The easement
of party wall shall be governed by the
provisions of this Title, by the local
ordinances and customs insofar as they
do not conflict with the same, and by the
rules of co-ownership.
8. Occupation: Harvesting and Fishing: coownership by two or more persons who
have seized a res nullius thing
9. Condominium Law: co-ownership of the
common areas by holders of units
Sec. 6, RA 4726. The Condominium
Act. Unless otherwise expressly
provided in the enabling or master deed
or the declaration of restrictions, the
incidents of a condominium grant are as
follows:
(c) Unless otherwise, provided,
the common areas are held in
common by the holders of units,
in equal shares, one for each
unit.
B. Contracts
1. By Agreement of Two or More Persons
a. Article 494, Civil Code. No co-owner
shall be obliged to remain in the coownership. Each co-owner may demand
at any time the partition of the thing
owned in common, insofar as his share
is concerned.
Nevertheless, an agreement to keep the
thing undivided for a certain period of
time, not exceeding ten years, shall be
valid. This term may be extended by a
new agreement.

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A donor or testator may prohibit partition


for a period which shall not exceed
twenty years.
Neither shall there be any partition when
it is prohibited by law.
No prescription shall run in favor of a coowner or co-heir against his co-owners
or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.
b. Two or more persons may agree to
create a co-ownership
c. Note: there is a 10-year term limit for
ownership by agreement; BUT: Term
may be extended by a new agreement
2. By the creation of a Universal
Partnership
a. Of all present property
Article
1778, Civil Code.
A
partnership of all present property is
that in which the partners contribute all
the property which actually belongs 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.
Article 1779, Civil Code. In a
universal partnership of all present
property, the property which belonged
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 all the profits
which they may acquire therewith.
A stipulation for the common
enjoyment of any other profits may
also be made; but the property which
the
partners
may
acquire
subsequently by inheritance, legacy,
or donation cannot be included in such
stipulation, except the fruits thereof.
b. Of profits
Article 1780, Civil Code. A universal
partnership of profits comprises all that
the partners may acquire by their
industry or work during the existence of
the partnership.
Movable or immovable property which
each of the partners may possess at the
time of the celebration of the contract
shall continue to pertain exclusively to

Chapter V. CO-OWNERSHIP

each, only the usufruct passing to the


partnership.
3. By Associations and Societies with
Secret Articles
Article 1775, Civil Code. Associations
and societies, whose articles are kept
secret among the members, and
wherein any one of the members may
contract in his own name with third
persons, shall have no juridical
personality, and shall be governed by
the provisions relating to co-ownership.

VI. Rights of Each Co-owner over the


Thing or Property Owned in Common
Rights of Each Co-owner over the Thing or
Property Owned in Common
1. To use the thing according to the purpose
intended (Jus Utendi)
2. To share in the benefits in proportion to his
interest provided the charges are borne by
each in the same proportion
3. To bring an action in ejectment
4. To compel the other co-owners to contribute
to expense for preservation of the property
owned in common and to the payment of
taxes
5. To oppose any act of Alteration
6. To protest against acts of majority which are
seriously prejudicial to the minority
7. To exercise legal redemption
8. To ask for partition
Right use the thing according to the purpose
intended (Jus Utendi)
Article 486, Civil Code. Each co-owner may use
the thing owned in common, provided he does so in
accordance with the purpose for which it is intended
and in such a way as not to injure the interest of the
co-ownership or prevent the other co-owners from
using it according to their rights. The purpose of the
co-ownership may be changed by agreement,
express or implied.

1. Limitations on co-owners right:


a. Use must be to the purpose for which it
is intended.
As stipulated in the agreement
In the absence of agreement, the
purpose for which it was ordinarily
adapted according to its nature.
In the absence of the above, the use
for which it was previously or formerly
devoted.
b. Use must be without prejudice to the
interest of the co-ownership.

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CIVIL LAW REVIEWER

c.

Use must not prevent the other coowners from making use of the property
according to their own rights.

2. Changing the purpose of the thing


The purpose of the thing may be changed
by an agreement, express or implied,
provided that the following will be observed:
It does not cause injury or prejudice to
the interest of the co-ownership
Any act against the collective interest
is an act against ownership.
A co-owner cannot devote the
community property to his exclusive
use
It does not prevent the use by other
co-owners
Right to share in the benefits in proportion to
his interest provided the charges are borne
by each in the same proportion
Article 485, Civil Code. The share of the coowners, in the benefits as well as in the charges,
shall be proportional to their respective interests.
Any stipulation in a contract to the contrary shall be
void.
The portions belonging to the co-owners in the coownership shall be presumed equal, unless the
contrary is proved.

Right to bring an action in ejectment


Article 487, Civil Code. Any one of the co-owners
may bring an action in ejectment.

1. Action in Ejectment covers all kinds of action


for recovery of possession (reivindicatoria,
publiciana, forcible entry, unlawful detainer)
2. There is no need to include all the coowners as co-plaintiffs because the suit is
deemed to be instituted for the benefit of all
3. But the action will not prosper if the action is
brought for the benefit of the plaintiff alone
and not for the co-ownership
4. Article 487 of the Civil Code, which provides
simply that any one of the co-owners may
bring an action in ejectment, is a categorical
and an unqualified authority in favor of
owner to evict the petitioners from the
portions of lot. The rule is a co-owner may
bring an action to exercise and protect the
rights of all. When the action is brought by
one co-owner for the benefit of all, a
favorable decision will benefit them; but an
adverse decision cannot prejudice their
rights. (Resuena v. CA)
Right to compel the other co-owners to
contribute to expense for preservation of the

Chapter V. CO-OWNERSHIP

property owned in common and to the


payment of taxes
Article 488, Civil Code. Each co-owner shall have a
right to compel the other co-owners to contribute to
the expenses of preservation of the thing or right
owned in common and to the taxes. Any one of the
latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may
be equivalent to his share of the expenses and
taxes. No such waiver shall be made if it is
prejudicial to the co-ownership.

1. This provision includes only necessary


expenses and taxes, and NOT those for
mere luxury, embellishment or pleasure
a. Expenses for preservation: those which,
if not made, would endanger the
existence of the thing or reduce its value
or productivity
b. Not used for the improvement of the
thing (what is intended is the
preservation of the thing, not gaining
profit from it)
2. Renunciation
a. Other co-owners have the option not to
contribute by renouncing so much of his
undivided interest as may be equivalent
to his share of the necessary expenses
and taxes
Must be express; thus, failure to pay
is not a renunciation
Requires the consent of other coowners because it is a case of dacion
en pago (cessation of rights) involving
expenses and taxes already paid
(J.B.L. Reyes)
b. A co-owner cannot renounce his share if
it will be prejudicial to another co-owner
3. Procedure: Repairs for preservation
Article 489, Civil Code. Repairs for preservation
may be made at the will of one of the co-owners, but
he must, if practicable, first notify his co-owners of
the necessity for such repairs. Expenses to improve
or embellish the thing shall be decided upon by a
majority as determined in article 492.

a. Notify other co-owners, as far as


practicable
b. However, a co-owner can advance
expenses for preservation of the
property even without prior consent of
others. He is entitled to reimbursement
for the amount spent for necessary
expenses.

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Right to oppose any act of Alteration


Article 491, Civil Code. None of the co-owners
shall, without the consent of the others, make
alterations in the thing owned in common, even
though benefits for all would result therefrom.
However, if the withholding of the consent by one or
more of the co-owners is clearly prejudicial to the
common interest, the courts may afford adequate
relief.

1. Alteration: a change which more or less


permanently changes the use of a thing and
adversely affecting the condition of the thing
or its enjoyment by the others.
2. It involves:
a. Change of the thing from the state or
essence in which the others believe it
should remain, or
b. Withdrawal of the thing from the use to
which they wish to be intended, or
c. Any
other
transformation
which
prejudices the condition or substance of
the thing or its enjoyment by the others
3. Rule: Any act of alteration requires
UNANIMOUS CONSENT OF ALL COWORKERS
a. BUT when there is unreasonable
withholding of consent: the co-owner
may go to court to seek adequate relief.
b. Note: consent may be express or tacit
c. Reason for the rule: alteration is an act
of
ownership,
not
of
mere
administration.

4. Alteration v. Administration
Alteration
More permanent result
and relate to the
substance or form of
the thing
Nature: if the thing
does not require any
modification for its
enjoyment, any
modification that is
made will be
considered an
alteration
Consent: Unanimous
consent of all

Administration
Refers to the
enjoyment of the thing
and is of transitory
character
When the thing in its
nature requires
changes, modifications
can be considered as
acts of simple
administration
Consent: mere majority
is sufficient

a. Alteration without consent of all is illegal


The one who did the alteration will
lose whatever he spent in case he is
made to demolish the work he has
done (no right to reimbursement)
Damages to the non-consenting coowner can also be granted by the
court
b. Note: This is subject to ratification if
co-owners decide to contribute to the
expenses by reimbursing the co-owner
who made the alteration (effect: benefit
of alteration will inure to the coownership)
Right to protest against acts of majority
which are seriously prejudicial to the
minority
Article 492(3), Civil Code. Should there be no
majority, or should the resolution of the majority be
seriously prejudicial to those interested in the
property owned in common, the court, at the
instance of an interested party, shall order such
measures as it may deem proper, including the
appointment of an administrator.

1. Acts of administration
a. Acts of management that do not involve
alteration of the property
b. Acts which are temporary in character
so much so that they do not bind the
property for a long time
c. Acts that do not create real rights over
the common property
2. Rule:
If there is a disagreement or conflict of
opinions by and among the co-owners
on the matter of administration and
better enjoyment of the common
property, the resolution of the co-owners

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PROPERTY

4. Procedure:
Embellishment
or
improvements
a. Notify co-owners of improvements and
embellishments to be made
If no notification is made, the co-owner
who advanced the expenses still has
the right to be reimbursed if he proves
the necessity of such repairs and the
reasonableness of the expense
EXCEPTION: If the others can prove
that had he notified them, they could
have hired the services of another
who would charge less than the
people with whom the one who
advanced contracted or that they
know of a store that sells the needed
material at a cheaper price
o Co-owner only entitled to be
reimbursed for the amount that
should have been spent had he
notified
the
others,
and
difference shall be borne by him
alone
b. Decision by majority must be followed

Chapter V. CO-OWNERSHIP

representing the controlling interest (not


majority in number) shall be binding
upon all co-owners.
3. Who can be the administrator?
He or she may or may not be a coowner, PROVIDED that the co-owners
delegated him or her.
4. What can an administrator do?
a. PROVIDED there is a unanimous
consent
of
all
co-owners,
an
administrator may compromise on,
donate, cede, alienate, mortgage, or
encumber the common property
b. If the amount of individual contribution is
undetermined, the law presumes that
they all contributed proportionately
(Lavadia v. Cosme)
Right to exercise legal redemption
Article 1620, Civil Code. A co-owner of a thing may
exercise the right of redemption in case the shares
of all the other co-owners or of any of them, are sold
to a third person. If the price of the alienation is
grossly excessive, the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to exercise the
right of redemption, they may only do so in
proportion to the share they may respectively have
in the thing owned in common.
Article 1623, Civil Code. The right of legal preemption or redemption shall not be exercised except
within thirty days from the notice in writing by the
prospective vendor, or by the vendor, as the case
may be. The deed of sale shall not be recorded in
the Registry of Property, unless accompanied by an
affidavit of the vendor that he has given written
notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that
of adjoining owners.

1. Redemption: Act of reclaiming possession


of something by payment of a specific price
2. The 30-day redemption period starts from
the date of written notification of the sale
made by the co-owner.
Without such written notice, the 30-day
period does not start to run
3. Exceptions:
a. Estoppel by laches (inaction)
If there is oral notification and
several years have passed (implied
waiver) and there is reliance on the
non-action of co-owners
b. Estoppel by silence
When there is duty to speak
4. Note: The written notification must come
from the prospective vendor

Chapter V. CO-OWNERSHIP

a. The vendor is in a better position to


know things involving the property and
the sale
b. Redemption of the property by a coowner does not vest him sole
ownership
over
said
property.
Redemption will inure to the benefit of all
co-owners. Redemption is not a mode of
termination of relationship. (Mariano v.
CA)
5. Other cases where right of redemption is
given
a. Rural land
Article 1621, Civil Code. The
owners of adjoining lands shall also
have the right of redemption when a
piece of rural land, the area of which
does not exceed one hectare, is
alienated, unless the grantee does
not own any rural land.
This right is not applicable to
adjacent lands which are separated
by brooks, drains, ravines, roads
and other apparent servitudes for
the benefit of other estates.
If two or more adjoining owners
desire to exercise the right of
redemption at the same time, the
owner of the adjoining land of
smaller area shall be preferred; and
should both lands have the same
area, the one who first requested
the redemption.
b. Urban land
Article 1622, Civil Code. Whenever a
piece of urban land which is so small
and so situated that a major portion
thereof cannot be used for any
practical purpose within a reasonable
time, having been bought merely for
speculation, is about to be re-sold, the
owner of any adjoining land has a right
of pre-emption at a reasonable price.
If the re-sale has been perfected, the
owner of the adjoining land shall have
a right of redemption, also at a
reasonable price.
When two or more owners of adjoining
lands wish to exercise the right of preemption or redemption, the owner
whose intended use of the land in
question appears best justified shall
be preferred.

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CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Article 494, Civil Code. No co-owner shall be


obliged to remain in the co-ownership. Each coowner may demand at any time the partition of the
thing owned in common, insofar as his share is
concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended
by a new agreement.
A donor or testator may prohibit partition for a period
which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
No prescription shall run in favor of a co-owner or
co-heir against his co-owners or co-heirs so long as
he expressly or impliedly recognizes the coownership.

1. Partition: segregation or division of a


property in common to those to whom it
belongs
2. Rule: Right to demand partition does not
prescribe
3. Exceptions to the rule:
a. When indivision within 10 years is
stipulated by the co-owners
b. When co-ownership is imposed as a
condition in a donation or in a last will
and
testament
by
the
transferor/donor/testator
c. When from the nature of the property in
common, it cannot be divided (i.e. party
wall)
d. When partition is generally prohibited by
law (i.e. ACP, party wall)
e. When the partition would render the
thing unserviceable or the thing held in
common is essentially indivisible
If the thing cannot be physically
partitioned, they may sell the thing
and the co-owners may divide the
proceeds)
f. When acquisitive prescription has set in
favor of a stranger to con-ownership or
in favor of a co-owner

VII. Implication of Co-owners Right over


His Ideal Share
A. Rights of a Co-owner
1. To share in fruits and benefits
2. To alienate, mortgage, or encumber and
dispose his ideal share (but other co-owners
may exercise right of legal redemption within

30 days from notification of prospective coowner vendor)


3. To substitute another person in the
enjoyment of thing
4. To renounce part of his interest to reimburse
necessary expenses incurred by another coowner (Article 488)
Article 488, Civil Code. Each co-owner shall have a
right to compel the other co-owners to contribute to
the expenses of preservation of the thing or right
owned in common and to the taxes. Any one of the
latter may exempt himself from this obligation by
renouncing so much of his undivided interest as may
be equivalent to his share of the expenses and
taxes. No such waiver shall be made if it is
prejudicial to the co-ownership.

B. Effect of Transaction by Each Owner


1. Limited to his share in the partition
2. Transferee does not acquire any specific
portion of the whole property until partition
3. Creditors of co-owners may intervene in the
partition to attack the same if it is prejudicial
(Art. 499)
Article 499, Civil Code. The partition of a thing
owned in common shall not prejudice third persons,
who shall retain the rights of mortgage, servitude or
any other real rights belonging to them before the
division was made. Personal rights pertaining to
third persons against the co-ownership shall also
remain in force, notwithstanding the partition.

Note: Creditors cannot ask for rescission even if


not notified in the absence of fraud (Art. 497,
Civil Code)
Article 497, Civil Code. The creditors or assignees
of the co-owners may take part in the division of the
thing owned in common and object to its being
effected without their concurrence. But they cannot
impugn any partition already executed, unless there
has been fraud, or in case it was made
notwithstanding a formal opposition presented to
prevent it, without prejudice to the right of the debtor
or assignor to maintain its validity.

VIII. Rules
on
Co-Ownership
Applicable to CPG or ACP

Not

These two regimes are governed by the


provisions on the Family Code
Even void marriages and cohabitation of
incapacitated persons are governed by
Article 50, 147, and 148 of the Family Code

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Right to ask for partition

Chapter V. CO-OWNERSHIP

CIVIL LAW REVIEWER

RA 4726. THE CONDOMINIUM ACT


Sec. 2. A Condominium is an interest in real
property consisting of a separate interests in a unit
in a residential, industrial or commercial building or
in an industrial estate and an undivided interests in
common, directly and indirectly, in the land, or the
appurtenant interest of their respective units in the
common areas.

master deed which shall contain, among others, the


following:
a.

Description of the land on which the building


or buildings and improvements are to be
located;

b.

Description of the building or buildings,


stating the number of storeys and basement,
the number of units and their accessories, if
any;

c.

Description of the common areas and


facilities;

d.

A statement of the exact nature of the


interest acquired or to be acquired by the
purchased in the separate units and the
common areas of the condominium projects.
Where title to or to appurtenant interests in
the common areas is to be held by a
condominium corporation, a statement to
this effect shall be included;

e.

A certificate of the registered owner of the


property, if he is other than those executing
the master deed, as well as of all registered
holders of any lien or encumbrances on the
property, that they consent to the
registration of the deed;

f.

The following plans shall be appended to the


deed as integral parts thereof:

The real right in condominium may be ownership or


any interest in real property recognized by law on
property in the Civil Code and other pertinent laws.
Sec. 3. As used in this Act, unless the context
otherwise requires:
b. Unit" means a part of the condominium
project intended for any type of independent
use or ownership, including one or more
rooms or spaces located in one or more
floors (or parts of floors) in a building or
buildings and such accessories as may be
appended thereto: Provided, that in the case
of an industrial estate wherein the
condominium project consists of several
buildings, plants and factories may, by
themselves, be considered separately as
individual units as herein defined.
c.

"Project" means the entire parcel of real


property divided or to be divided in
condominiums, including all structures
thereon.

d.

"Industrial Estate or Estate" means a certain


tract of land which is subdivided and
developed primarily for industrial purposes
and which usually includes provisions for
basic infrastructure facilities and common
services such as roads, water, electricity,
drainage and waste disposal system.

e.

"Common areas" means the entire project


except all units separately granted or held or
reserved.

f.

"To divide" real property means to divide the


ownership thereof or other interests therein
by conveying one or more condominium
therein but less than the whole thereof.

Sec. 4. The provisions of this Act shall apply to


property divided or to be divided into condominium
only if there shall be recorded in the Register of
Deeds of the province or city in which the property
lies, and duly annotated in the corresponding
certificate of title of the land, if the latter had been
patented or registered under either the Land
Registration or Cadastral Acts, an enabling or

1. A survey plan of the land included in the


project, unless a survey plan of the same
property had previously been filed in said
office.
2. A diagrammatic floor plan of the building
or buildings each unit, its relative
location and approximate dimensions.
g.

Any reasonable restriction not contrary to


law, morals, or public policy regarding the
right of any condominium owner to alienate
or dispose off his condominium.

h.

The enabling or master deed may be


amended or revoked upon registration of an
instrument executed by a simple majority of
the registered owners of the property:
Provided, That in a condominium project
exclusively for either residential or
commercial use, simple majority shall be on
a per unit of ownership basis and that in the
case of mixed use, simple majority shall be
on a floor area of ownership basis:
Provided, further, That prior notifications to
all registered owners shall be submitted to
the Housing and Land Use Regulatory
Board and the city/municipal engineer for
approval before it can be registered. Until
registration of a revocation, the provisions of
this Act shall continue to apply to such

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PROPERTY

IX. Special Rules on Ownership of


Different Stories of a House as
Differentiated from Provisions of the
Condominium Act

Chapter V. CO-OWNERSHIP

CIVIL LAW REVIEWER

Chapter V. CO-OWNERSHIP

property.

Sec. 6. Unless otherwise expressly provided in the


enabling or master deed or the declaration of
restrictions, the incidents of a condominium grant
are as follows:
a.

b.

c.

the boundary of the unit granted are the


interior surfaces of the perimeter walls,
floors, ceiling, windows and doors thereof:
Provided, that in the case of an industrial
estate condominium projects, wherein whole
buildings, plants or factories may be
considered as unit defined under section 3
(b) hereof, the boundary of a unit shall
include the outer surfaces of the perimeter
walls of said buildings, plants or factories.
The following are not part of the unit:
bearing walls, columns, floors, roofs,
foundations, and other common structural
elements of the buildings; lobbies,
stairways, hall ways and other areas of
common use, elevator equipment and
shafts, central heating, central refrigeration
and central air conditioning equipment,
reservoir, tanks, pumps and other central
services and facilities, pipes, ducts, flues,
chutes, conduits wires and other utility
installations, wherever located, except the
outlets thereof when located within the unit.
There shall pass with the unit, as an
appurtenant thereof, an exclusive casement
for the use of the air space encompasses by
the boundaries of the unit as it exists at any
particular time and as the unit may lawfully
be altered or reconstructed from time to
time. Such easement shall be automatically
terminated in any air space upon destruction
of the units as to render it untenantable.
Unless otherwise provided, the common
areas are held in common by the holders of
units, in equal share one for each unit.

d.

A non-exclusive easement for ingress,


egress and support through the common
areas in appurtenant to each unit and the
common areas are subject to such
easement.

e.

Each condominium owner shall have the


exclusive right to paint, repaint, tile, wax,
paper or otherwise refinish and decorate the
inner surfaces of the walls, ceilings, floors,
windows and doors hounding his own unit:
provided, that in the case of an industrial
estate condominium unit, such right may be
exercised over the external surfaces of the
said unit.

f.

Each condominium owner shall have the


exclusive right to mortgage, pledge or
encumber his condominium and to have the
same appraised independently of the other
condominium owner.

g.

Each condominium owner has also the


absolute right to sell or dispose of his
condominium unless the master deed
contains a requirements that the property be
first offered to the condominium owners
within a reasonable period of time before
the same is offered to outside parties;

Sec. 7. Except as provided in the following section,


the common areas shall remain undivided, and there
shall be no judicial partition thereof.
Sec. 8. Where several persons own condominium
in a condominium project, an action may be brought
by one or more such person for partition thereof, by
sale of the entire project, as if the owners of all the
condominium in such project were co-owners of the
entire project in the same proportion as their
interests in the common areas: Provided, however,
that a partition shall be made only upon a showing:
a. That three years after damage or
destruction to the project which renders a
material part thereof unfit for its use prior
thereto, the project had not been rebuilt or
repaired substantially to its state prior to its
damage or destruction; or
b. That damage or destruction to the project
has rendered one half or more of the units
therein untenantable and that condominium
owners holding in aggregate more than 30
percent interest in the common areas are
opposed to the repair or restoration of the
projects; or
c. That project has been in existence in excess
of 50 years, that it is obsolete and
uneconomical, and that condominium
owners holding in aggregate more than 50
percent interest in the common areas are
opposed to repair or restoration or

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PROPERTY

Sec. 5. Any transfer or conveyance of a unit or an


apartment, office or store or other space therein,
shall include the transfer or conveyance of the
undivided interest in the common areas or in a
proper case, the membership or share holdings in
the condominium corporation: Provided, however,
That where the common areas in the condominium
project are held by the owners of separate units as
co-owners hereof, no condominium unit therein shall
be conveyed or transferred to persons other than
Filipino citizens or corporation at least 60% of the
capital stock of which belong to Filipino citizens,
except in cases of hereditary succession. Where the
common areas in a condominium project are held by
a corporation, no transfer or conveyance of a unit
shall be valid if the concomitant transfer of the
appurtenant membership or stockholding in the
corporation will cause the alien interest in such
corporation to exceed the limits imposed by existing
laws.

CIVIL LAW REVIEWER

d. That the project or a material part thereof


has been condemned or expropriated and
that the project is no longer viable, or that
the condominium owners holding in
aggregate more than 70 percent interest in
the common areas are opposed to the
continuation of the condominium regime
after expropriation or condemnation of a
material proportion thereof; or
e. That the condition for such partition by sale
set forth in the declaration of restrictions
duly registered in accordance with the terms
of this Act, have been met.
Sec. 9. The owner of a project shall, prior to the
conveyance of any condominium therein, register a
declaration of restrictions relating to such project,
which restrictions shall constitute a lien upon each
condominium in the project, and shall insure to and
bind all condominium owners in the project. Such
liens, unless otherwise provided, may be enforced
by any condominium owner in the project or by the
management body of such project. The Register of
Deeds shall enter and annotate the declaration of
restrictions upon the certificate of title covering the
land included within the project, if the land is
patented or registered under the Land Registration
or Cadastral Acts.
The declaration of restrictions shall provide for the
management of the project by anyone of the
following management bodies: a condominium
corporation, an association of the condominium
owners, a board of governors elected by
condominium owners, or a management agent
elected by the owners or by the board named in the
declaration. It shall also provide for voting majorities
quorums, notices, meeting date, and other rules
governing such body or bodies.
Such declaration of restrictions, among other things,
may also provide:
a.

As to any such management body;


1. For the powers thereof, including power
to enforce the provisions of the
declarations of restrictions;
2. For maintenance of insurance policies,
insuring condominium owners against
loss
by fire, casualty, liability,
workmen's compensation and other
insurable risks, and for bonding of the
members of any management body;
3. Provisions for maintenance, utility,
gardening and other services benefiting
the common areas, for the employment
of personnel necessary for the
operation of the building, and legal,
accounting and other professional and
technical services;
4. For purchase of materials, supplies and
the like needed by the common areas;

5.

For payment of taxes and special


assessments which would be a lien
upon the entire project or common
areas, and for discharge of any lien or
encumbrance levied against the entire
project or the common areas;
6. For reconstruction of any portion or
portions of any damage to or
destruction of the project;
7. The manner for delegation of its
powers;
8. For entry by its officers and agents into
any unit when necessary in connection
with the maintenance or construction
for which such body is responsible;
9. For a power of attorney to the
management body to sell the entire
project for the benefit of all of the
owners thereof when partition of the
project may be authorized under
Section 8 of this Act, which said power
shall be binding upon all of the
condominium owners regardless of
whether they assume the obligations of
the restrictions or not.
b. The manner and procedure for amending
such restrictions: Provided, That the vote of
not less than a majority in interest of the
owners is obtained.
c.

For independent audit of the accounts of


the management body;

d.

For reasonable assessments to meet


authorized
expenditures,
each
condominium unit to be assessed
separately for its share of such expenses in
proportion (unless otherwise provided) to
its owners fractional interest in any
common areas;

e.

For the subordination of the liens securing


such assessments to other liens either
generally or specifically described;

f.

For conditions, other than those provided


for in Sections eight and thirteen of this Act,
upon which partition of the project and
dissolution of the condominium corporation
may be made. Such right to partition or
dissolution may be conditioned upon failure
of the condominium owners to rebuild
within a certain period or upon specified
inadequacy of insurance proceeds, or upon
specified percentage of damage to the
building, or upon a decision of an arbitrator,
or upon any other reasonable condition.

Sec. 10. Whenever the common areas in a


condominium project are held by a condominium
corporation, such corporation shall constitute the
management body of the project. The corporate
purposes of such a corporation shall be limited to
the holding of the common areas, either in
ownership or any other interest in real property

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PROPERTY

remodeling or modernizing of the project; or

Chapter V. CO-OWNERSHIP

recognized by law, to the management of the


project, and to such other purposes as may be
necessary, incidental or convenient to the
accomplishment of said purposes. The articles of
incorporation or by-laws of the corporation shall not
contain any provision contrary to or inconsistent with
the provisions of this Act, the enabling or master
deed, or the declaration of restrictions of the project.
Membership in a condominium corporation,
regardless of whether it is a stock or non-stock
corporation, shall not be transferable separately
from the condominium unit of which it is an
appurtenance. When a member or stockholder
ceases to own a unit in the project in which the
condominium corporation owns or holds the
common areas, he shall automatically cease to be a
member or stockholder of the condominium
corporation.
Sec. 11. The registration and regulation of a
condominium corporation shall be vested with the
Housing And Land Use Regulatory Board (HLURB)
and the term of the said corporation shall be
coterminous with the duration of the subdivision
projects, the provision of the corporation law to the
contrary notwithstanding.
Sec.
12. The dissolution of the condominium
corporation in any manner and any of the causes
provided by law shall be governed by the provisions
of the Title XIV of the Corporation Code.
Sec. 13. Until the enabling or the master deed of
the project in which the condominium corporation
owns or holds the common areas is revoked the
corporation shall not be voluntarily dissolved through
an action for dissolution under Rule 104 of the Rules
of Court except upon a showing:
a.

The three years after damage or


destruction to the project in which damage
or destruction renders a materials part
thereof unfit for its use prior thereto, the
project has not been rebuilt or repaired
substantially to its state prior to its damage
or destruction; or

b.

The damage or destruction to the project


has rendered one half or more of the units
therein untenantable and that more than 30
percent of the member of the corporation
entitled to vote, if a stock corporation, are
opposed to the repair or reconstruction of
the project; or

c.

That the project has been in existence


excess of 50 years, that it is obsolete and
uneconomical and that more than 50
percent of the members of the corporation
if non-stock or stockholders representing
more than 50 percent of the capital stock
entitled to vote, if a stock corporation, are
opposed to the repair or restoration or
remodeling or modernizing of the project; or

Chapter V. CO-OWNERSHIP
d.

That project or material part thereof has


been condemned or expropriated and that
the project is no longer viable or that the
members holding in aggregate more than
70 percent interest in the corporation if nonstock, or the stockholders representing
more than 70 percent of the capital stock
entitled to vote, if a stock corporation, are
opposed to the continuation of the
condominium regime after expropriation or
condemnation of a material portion thereof;
or

e.

That the conditions for such a dissolution


set forth in the declaration of restrictions of
the project in which the corporation, are
opposed to the continuation of the
condominium regime after expropriation or
condemnation of a material portion thereof.

Sec. 14. The condominium corporation may also be


dissolved by the affirmative vote of all the
stockholders or members thereof at a general or
special meeting duly called for such purpose:
Provided, that all the requirements of Section 62 of
the Corporation Law are complied with.
xxx
Sec. 16. A condominium corporation shall not,
during its existence, sell, exchange, lease or
otherwise dispose of the common areas owned or
held by it in the condominium project unless
authorized by the affirmative vote of a simple
majority of the registered owners: provided, that
prior notification to all registered owners are done
and provided further, that the condominium
corporation may expand or integrate the project with
another upon the affirmative vote of a simple
majority of the registered owners, subject only to the
final approval of the HLURB.
xxx
Sec. 19. Where the enabling or master deed
provides that the land included within a
condominium project are to be owned in common by
the condominium owners therein the Register of
Deeds may at the request of all the condominium
owner and upon surrender of all their condominium
owner's copies, cancel the certificate of title of the
property and issue a new one in the name of said
condominium owners as pro-indiviso co-owners
thereof.
xxx
Sec. 23. Where, in an action for partition of a
condominium corporation on the ground that the
project or a material part thereof has been
condemned or expropriated, the court finds that the
condition provided in this Act or in the declaration
have not been met, the court may decree a
reorganization of the project declaring which portion
or portions of the project shall continue as a

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CIVIL LAW REVIEWER

condominium project, the owners thereof, and the


respective rights of the remaining owners and the
just compensation, if any, that a condominium owner
may be entitled to due to deprivation of his property.
Upon receipt of a copy of the decree, the Register of
Deeds shall enter and annotate the same on the
pertinent certificate of title.
Sec. 24. Any deed declaration or plan for a
condominium project shall be liberally construed to
facilitate the operation of the project, and its
provisions shall be presumed to be independent and
several.
Sec. 25. The building and design standards for
condominium projects to be promulgated by HLURB
shall provide for, among others, accessibility
features for disabled persons pursuant to Batas
Pambansa Bilang 344 of 1994.
Sec. 26. Whenever real property has been divided
into condominiums, each condominium separately
owned shall be separately assessed, for purposes of
real property taxation and other tax purposes, to the
owners thereof and tax on each such condominium
shall constitute a lien solely thereon.
Sec. 27. All acts or parts of Acts in conflict on
inconsistent with this Act are hereby amended
insofar as condominium and its incidents are
concerned.

Concept of Condominium
It is an interest in real property consisting of a:
1. SEPARATE INTEREST in a unit in a
a. residential, or
b. industrial, or
c. commercial building
2. UNDIVIDED INTEREST in common directly
or indirectly,
a. in the land on which it is located
b. in other common areas of the building
When Ownership of the Unit is Acquired
1. Ownership is acquired only after the buyer
had fully paid the purchase price.
2. The ownership of the unit is what makes the
buyer a shareholder in the condominium.
Note: The condominium law effectively
separates the building from the land (by a
master deed)
3. Building is deemed an accessory
Amendments
Co-ownership in common areas means shared
expenses in these areas
1. Sec 4: simple majority of the property
2. Sec 16: common areas may be disposed by
affirmative vote of a simple majority of the
registered owners

Chapter V. CO-OWNERSHIP

What Does the Housing and Land Use


Regulatory Board Do?
They hear the complaints of buyers.
Important Documents in Condo Ownership
1. Deed of sale
2. Master deed (Sec. 4)
3. Declaration of restrictions (Sec. 9): pertains
to how common areas will be governed and
who will do the governing
a. i.e. how to contribute to common area
expenses: contribution to maintenance,
upkeep, repair of common areas
included
b. there is an Assessment, which is a lien
upon the condo unit

X. Extinguishment of Co-Ownership
A. Total destruction of thing or loss of the
property co-owned
Is there still co-ownership if a building is
destroyed?Yes, over the land and the
debris.
B. Merger of all interests in one person
C. Acquisitive Presciption
By whom
1. A third person (Art. 1106)
2. A co-owner against the other co-owners
Requisites
1. Unequivocal acts of repudiation of the rights
of the other co-owners (you oust the other
co-owners)
a. Must be shown by clear and convincing
evidence
b. Must be within the knowledge of the
other co-owners
c. Must not be a mere refusal to recognize
the others as co-owners
2. Open and adverse possession - Not mere
silent possession
Note: there is a presumption that
possession of a co-owner is NOT adverse
Prescription only arises and produces all
effects when the acts are clearly meant
to oust the rights of the other co-owners
D. Partition or Division
Effects of Partition
1. Confers upon each heir the exclusive
ownership of the property adjudicated to him

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CIVIL LAW REVIEWER

Chapter V. CO-OWNERSHIP

2. Co-heirs shall be reciprocally bound to


warrant the title to and the quality of each
property adjudicated
3. Reciprocal obligation of warranty shall be
proportionate to the respective hereditary
shares of co-heirs
4. An action to enforce warranty must be
brought within 10 years from the date the
right accrues
5. The co-heirs shall not be liable for the
subsequent insolvency of the debtor of the
estate

Note: Unless partition is effected, each heir


cannot claim sole ownership over a
definite portion of the land and cannot
dispose of the same. Heirs become the
undivided owner of the whole estate
each co-owner shall have full ownership
if his part even as to fruits and benefits.
He may alienate, assign or mortgage his
share. The effect of such act shall be
limited to the portion allotted to him
during partition. Until said partition
though, he cannot alienate a specific
part of the estate. A co-owner cannot
adjudicate to himself a definite portion
owned in common until partition by
agreement or by a judicial decree. Until
then, they can only sell their
successional rights. (Carvaria v. CA)
Rights of
Owners

Creditors

of

Individual

Co-

Article 497, Civil Code. The creditors or assignees


of the co-owners may take part in the division of the
thing owned in common and object to its being
effected without their concurrence. But they cannot
impugn any partition already executed, unless there
has been fraud, or in case it was made
notwithstanding a formal opposition presented to
prevent it, without prejudice to the right of the debtor
or assignor to maintain its validity.

Creditors referred to in the provision: All


creditors, whether ordinary or preferred, who
became such during the subsistence of the
co-ownership.
Rule: The creditors are allowed to take part
in the partition.
Reason for the rule: They own part of the
interest of the o-owners who made the
assignment or alienation.

Procedure for Partition


Governing rule: Rule 69 of the Rules of
Court
How: By agreement by parties or by judicial
decree

Form: Oral or Written (Statute of Frauds


does not operate here because it is not a
conveyance of property but a mere
segregation or designation of which parts
belong to whom)
Rules of Court does not preclude
agreements or settlements.
Action for Partition:
a. WON the plaintiff is indeed a co-owner
of the property
b. HOW will the property be divided
between the plaintiff and defendant.
Intervention of creditors and assignees:
a. The law does not expressly require that
there should be a previous notice to the
creditors and assignees before a
partition can be validly made, but the
right of creditors and assignees to take
part in the division presupposes the duty
to notify them.
b. If notice is not given, the partition will not
be binding on them.
c. Once notice has been given, it is the
duty of creditors and assignees to
intervene and make known their stand.
i. If they fail to do this, they cannot
question the division made,
except in case of fraud.
ii. If they formulate a formal
question to its being made, they
can contest such partition mad
in spite of their opposition.

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I.
II.

DEFINITION AND CONCEPT


DEGREES OF POSSESSION
A. MERE
HOLDING
WITHOUT
TITLE
WHATSOEVER, AND IN VIOLATION OF
THE RIGHT OF THE OWNER
B. POSSESSION WITH JURIDICAL TITLE
BUT NOT THAT OF OWNERSHIP
C. POSSESSION WITH JUST TITLE, BUT
NOT FROM THE TRUE OWNER
D. POSSESSION WITH JUST TITLE FROM
THE TRUE OWNER
III. CLASSES OF POSSESSION
A. NATURAL POSSESSION
B. CIVIL POSSESSION
IV. CASES OF POSSESSION
A. POSSESSION IN ONES OWN NAME AND
POSSESSION
IN
THE
NAME
OF
ANOTHER
B. POSSESSION IN THE CONCEPT OF AN
OWNER AND POSSESSION IN THE
CONCEPT OF A HOLDER
C. POSSESSION IN GOOD FAITH AND
POSSESSION IN BAD FAITH
V. WHAT THINGS OR RIGHTS MAY BE
POSSESSED
VI. WHAT MAY NOT BE POSSESSED BY
PRIVATE PERSONS
VII. ACQUISITION OF POSSESSION
A. WAYS OF ACQUIRING POSSESSION
B. BY WHOM MAY POSSESSION BE
ACQUIRED
C. WHAT DO NOT AFFECT POSSESSION
D. RULES TO SOLVE CONFLICTS OF
POSSESSION
VIII. EFFECTS OF POSSESSION
A. RIGHT TO BE PROTECTED IN HIS
POSSESSION
B. ENTITLEMENT TO FRUITS
C. REIMBURSEMENT FOR EXPENSES
D. GOOD FAITH (IN CONCEPT OF OWNER)
IS EQUIVALENT TO TITLE
IX. EFFECT OF POSSESSION IN THE CONCEPT
OF OWNER
X. LOSS OF POSSESSION
A. ABANDONMENT
B. ASSIGNMENT
C. DESTRUCTION OR TOTAL LOSS OF
THING OR THING GOES OUT OF
COMMERCE
D. POSSESSION BY ANOTHER FOR MORE
THAN 1 YEAR

I.

Definition

Article 523, Civil Code. Possession is the holding


of a thing or the enjoyment of a right.

Concept of Possession
1. To possess, in a grammatical sense, means
to have, to physically and actually occupy a
thing, with or without right. (Sanchez
Roman)

2. It is the holding of a thing or a right, whether


by material occupation or by the fact that the
thing or the right is subjected to the action of
our will. (Manresa)
3. It is an independent right apart from
ownership.
Right of Possession
(jus possessionis)
Independent right

Right to possess
(jus possidendi)
Incident to ownership

4. Possession includes the idea of occupation.


It cannot exist without it. (Exceptions: Art.
537)
Essential Requisites of Possession
1. Corpus possessionis: Holding (actual or
constructive) of a thing or exercise of a right,
if right is involved.
a. General
Rule:
Possession
and
cultivation of a portion of a tract under
claim of ownership of all is a
constructive possession of all, if the
remainder is not in adverse possession
of another.
b. Doctrine of constructive possession
applies when the possession is under
title calling for the whole. It does not
apply where possession is without title.
Note: Possession in the eyes of law does
not mean that a man has to have his
feet on every square meter of the
ground before it can be said that he is in
possession. The general rule is that the
possession and cultivation of a tract of
land under a claim of ownership of all, is
a constructive possession of all, if the
remainder is not in adverse possession
of another. (Ramos v. Director of
Lands)
2. Animus possidendi: Intention to possess
a. Animus possidendi is essential in
possession. There is no possession if
the holder does not want to exercise the
rights
of
a
possessor.
Animus
possidendi is implied from the acts of
the possessor.
b. Animus possidendi may be contradicted
and rebutted by evidence to prove that
the person who is in possession, does
not in fact exercise power or control and
does not intend to do so
.

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Chapter VI. POSSESSION

CIVIL LAW REVIEWER

A. Mere holding or possession without title


whatsoever and in violation of the right
of the owner
e.g. possession of a thief or usurper of
land
Here, both the possessor and the public
know that the possession is wrongful.
B. Possession with juridical title but not that
of ownership
e.g. possession of a tenant, depository
agent, bailee trustee, lessee, antichretic
creditor.
This possession is peaceably acquired.
This degree of possession will never
ripen into full ownership as long as there
is no repudiation of concept under which
property is held.
C. Possession with just title or title
sufficient to transfer ownership, but not
from the true owner
e.g. possession of a vendee from a
vendor who pretends to be the owner.
This degree of possession ripens into
full ownership by lapse of time.
D. Possession with a just title from the true
owner.
This is possession that springs from
ownership.

III. Classes of Possession


The Old Civil Code had a distinction between
natural possession and civil possession. This
distinction has been abolished by the present
Code.
A. Natural Possession
Physical holding of a thing (detention); all
retention or enjoyment of a thing or right.
B. Civil Possession
Natural possession coupled with the
intention of acquiring ownership of the thing
or right.
The following may be said to have civil
possession:
a. The owner himself, who holds and
enjoys the things belonging to him.
b. The possessor who is not the owner but
has the intention to act as such, and is
considered as such by others.
c. The thief and the usurper who, in spite
of their intention and the fact that they
are civil possessors according to the

Code, cannot and should not become


owners.

IV. Cases of Possession


A. Possession for Oneself, or Possession
Exercised in Ones Own Name and
Possession in the Name of Another.
Article 524, Civil Code. Possession may be
exercised in one's own name or in that of another.

Name under which possession may be


exercised
1. In ones own name the fact of possession
and the right to such possession is found in
the same person.
2. In the name of another the one in actual
possession is without any right of his own,
but is merely an instrument of another in the
exercise of the latters possession.
Kinds of possession in the name of
another
1. Necessary arises by operation of law
e.g. representatives who exercise
possession in behalf of a conceived
child, juridical persons, persons not sui
juris and the conjugal partnership
2. Voluntary effected through the mutual
consent of the parties
e.g. agents or administrators appointed
by the owner or possessor.
Third person may also voluntary
exercise possession in the name of
another, but it does not become
effective unless ratified by the person in
whose name it is exercise.
B. Possession in the Concept of an Owner,
and Possession in the Concept of a
Holder with the Ownership Belonging to
Another
Article 525, Civil Code. The possession of things

or rights may be had in one of two concepts:


either in the concept of owner, or in that of the
holder of the thing or right to keep or enjoy it,
the ownership pertaining to another person.
1. Possession in Concept of Holder:
One who possesses as a mere holder,
not in the concept of owner,
acknowledges in another a superior right
which he believes to be ownership,
whether his belief be right or wrong.
e.g. tenant, usufructuary, borrower in
commodatum.

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PROPERTY

II. Degrees of Possession

Chapter VI. POSSESSION

Chapter VI. POSSESSION

2. Possession in Concept of Owner:


May be exercised by the owner himself
or one who claims to be so.
When a person claims to be the owner
of a thing, whether he believes so or not,
acting as an owner, and performing acts
of ownership, and he is or may be
considered as the owner by those who
witness his exercise of proprietary
rights, then he is in the possession of an
owner. This is the kind of possession
that ripens into ownership under Article
540, when such possession is public,
peaceful and uninterrupted (see Art.
1118).
Effects of Possession in Concept of an
Owner
a. Converted into ownership by the lapse
of time necessary for prescription
b. Possessor can bring all actions
necessary to protect his possession,
availing himself of any action which an
owner can bring, except accion
revindicatoria which is substituted by
accion publiciana.
c. He can ask for the inscription of
possession in the registry of property
d. Upon recovering possession from one
who has unlawfully deprived him of it, he
can demand fruits and damages
e. He can do on the thing possessed
everything that the law authorizes an
owner to do; he can exercise the right of
pre-emption and is entitled to the
indemnity in case of appropriation.
C. Possession
in
Good
Possession in Bad Faith

Faith

and

Article 526, Civil Code. He is deemed a possessor


in good faith who is not aware that there exists in his
title or mode of acquisition any flaw which
invalidates it.
He is deemed a possessor in bad faith who
possesses in any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law
may be the basis of good faith.

1. Possessor in good faith one who is


unaware that there exists a flaw which
invalidates his acquisition of the thing.
Good faith consists in the possessors
belief that the person from whom he
received a thing was the owner of the
same and could convey his title.

It implies freedom from knowledge and


circumstances which ought to put a
person on inquiry.
The belief of a possessor that he is the
owner of the thing must be based upon
the title or mode of acquisition, such as
a sale, a donation, inheritance or other
means of transmitting ownership; for
without this, there can be no real, wellgrounded belief of ones ownership.
Error in the application of the law, in the
legal solutions that arise from such
application, in the appreciation of legal
consequence of certain acts, and in the
interpretation of doubtful provisions or
doctrines, may properly serve as basis
for good faith.
A misconception of the law, no matter
how honest cannot have the effect of
making one a possessor in good faith,
when he does not hold a title valid in
form or a deed sufficient in terms to
transfer property.

2. Possessor in bad faith one who knows


his title is defective
Only personal knowledge of the flaw in
the title or mode of acquisition can make
him a possessor in bad faith for bad faith
is not transmissible from one person to
another.
Mistake upon a doubtful or difficult
question of law as a basis of good faith
Mistake or ignorance of the law, by
itself, cannot become the basis of good
faith. What makes the error or ignorance
a basis of good faith is the presence of
an apparent doubt or difficulty in the
law. In other words, the law is complex,
ambiguous, or vague such that it is open
to two or more interpretations.
When the ignorance of the law is gross
and inexcusable, as when a person of
average intelligence would know the
law, such ignorance cannot be the basis
of good faith. Otherwise, the intendment
of Article 3 which states that, Ignorance
of the law excuses no one from
compliance therewith, will be defeated.

V. What Things May be Possessed


Article 530, Civil Code. Only things and rights
which are susceptible of being appropriated may be
the object of possession.

Not all things susceptible of appropriation can be


the object of prescription (See Art. 1113)

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CIVIL LAW REVIEWER

Chapter VI. POSSESSION

VI. What May Not Be Possessed by


Private Persons
1. Res Communes
2. Property of Public Dominion
3. Right under discontinuous
apparent easement

and/or

non-

VII. Acquisition of Possession


A. Ways of Acquiring Possession
Article 531, Civil Code. Possession is acquired by
the material occupation of a thing or the exercise of
a right, or by the fact that it is subject to the action of
our will, or by the proper acts and legal formalities
established for acquiring such right.

1. By material occupation of the thing


Material occupation occupation,
under this provision, is used in its
ordinary meaning or general sense and
not in its technical meaning under Article
712, which defines occupation as a
mode
of
acquiring
ownership.
Possession
acquired
by material
occupation is only possession as a fact,
not the legal right of possession.
Constructive delivery is considered as
an equivalent of material occupation in
two situations where such occupation is
essential
to
the
acquisition
of
possession:
Tradicion brevi manu takes place
when one who possess a thing by
title other than ownership, continues
to possess the same under a new
title, that of ownership.
Tradicion constitutum possessorium
takes place when the owner
alienates the thing, but continues to
posses the same under a different
title.
2. By subjection to the action of ones will
This mode of acquiring possession
refers more to the right of possession
than to possession as a fact. The action
of our will must be juridical, in the sense
that it must be according to law.
This includes the following kinds of
constructive delivery:
Tradicion symbolica effected by
delivering some object or symbol
placing the thing under the control of
the transferee
Tradicion longa manu effected by
the transferor pointing out to the

tranferee the things which are being


transferred
3. By execution of proper acts under legal
formalities
This mode of acquiring possession
refers to juridical acts or the acquisition
of possession by sufficient title
evidenced by the performance of
required formalities.
Examples:
Donations
Succession
Contracts (like a sale with right to
repurchase)
Judicial possession
Execution of judgments
Execution and registration of public
instruments
Inscription of possessory information
titles
The execution of the required formalities
is equivalent to delivery of the property
subject thereof.
B. By Whom May Possession Be Acquired
Article 532, Civil Code. Possession may be
acquired by the same person who is to enjoy it, by
his legal representative, by his agent, or by any
person without any power whatever: but in the last
case, the possession shall not be considered as
acquired until the person in whose name the act of
possession was executed has ratified the same,
without prejudice to the juridical consequences of
negotiorum gestio in a proper case.

Possession may be acquired by


1. by the same person
2. by his legal representative
3. by his agent
4. by any person without any power
whatsoever but subject to ratification,
without prejudice
to proper case or
negotiorum gestio (Arts. 2144, 2149, 2150)
5. qualifiedly,
minors
and
incapacitated
persons
By the same person
Elements of personal acquisition:
1. Must have the capacity to acquire
possession
2. Must have the intent to possess
3. The possibility to acquire possession must
be present.

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Note:
Bad
faith
is
personal
and
intransmissible. Its effects must be
therefore, be suffered only by the person
who acted in bad faith; his heir should
not be saddled with the consequences
Good faith can only benefit the person
who has it; and the good faith of the heir
cannot erase the effects of bad faith of
his predecessor.
Article 534, Civil Code. On who succeeds by
hereditary title shall not suffer the consequences of
the wrongful possession of the decedent, if it is not
shown that he was aware of the flaws affecting it;
but the effects of possession in good faith shall not
benefit him except from the date of the death of the
decedent.

By any person without any power


whatsoever but subject to ratification,
without prejudice to proper case or
negotiorum gestio (Arts. 2144, 2149, 2150)
Article 2144, Civil Code. Whoever voluntarily takes
charge of the agency or management of the
business or property of another, without any power
from the latter, is obliged to continue the same until
the termination of the affair and its incidents, or to
require the person concerned to substitute him, if the
owner is in a position to do so. This juridical relation
does not arise in either of these instances:
1. When the property or business is not
neglected or abandoned;
2. If in fact the manager has been tacitly
authorized by the owner.
In the first case, the provisions of Articles 1317,
1403, No. 1, and 1404 regarding unauthorized
contracts shall govern.
In the second case, the rules on agency in Title X of
this Book shall be applicable.
Article 2149, Civil Code. The ratification of the
management by the owner of the business produces
the effects of an express agency, even if the
business may not have been successful.
Article 2150, Civil Code. Although the officious
management may not have been expressly ratified,
the owner of the property or business who enjoys

the advantages of the same shall be liable for


obligations incurred in his interest, and shall
reimburse the officious manager for the necessary
and useful expenses and for the damages which the
latter may have suffered in the performance of his
duties.
The same obligation shall be incumbent upon him
when the management had for its purpose the
prevention of an imminent and manifest loss,
although no benefit may have been derived.

Qualifiedly,
persons

minors

and

incapacitated

Article 535, Civil Code. Minors and incapacitated


persons may acquire the possession of things; but
they need the assistance of their legal
representatives in order to exercise the rights which
from the possession arise in their favor.

Incapacitated all those who do not have


the capacity to act (insane, lunatic, deafmutes who cannot read and write,
spendthrifts
and
those
under
civil
interdiction)
Object of possession things only, not
rights.
Method of acquisition material occupation;
acquisition by means for which the
incapacitated person has the capacity, such
as acquisition by succession, testate or
intestate, or by donations propter nuptias,
pure and simple donations

C. What Do Not Affect Possession


Article 537, Civil Code. Acts merely tolerated, and
those executed clandestinely and without the
knowledge of the possessor of a thing, or by
violence, do not affect possession.

1. Acts merely tolerated


Those
which
by
reason
of
neighborliness or familiarity, the owner
of property allows his neighbor or
another person to do on the property;
Those particular services or benefits
which ones property can give to another
without material injury or prejudice to the
owner, who permits them out of
friendship or courtesy
Acts of little disturbances which a
person, in the interest of neighborliness
or friendly relations permits others to do
on his property, although continued for a
long time, no right will be acquired by
prescription
Note: Permissive use merely tolerated by
the possessor cannot affect possession

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PROPERTY

By his legal representative


Requisites of acquisition through another:
1. That the representative or agent has the
intention to acquire the thing or exercise the
right for another, and not for himself
2. That the person for whom the thing has
been acquired or the right exercised, has the
intention of possessing such thing or
exercising such right

Chapter VI. POSSESSION

CIVIL LAW REVIEWER

2. Acts executed clandestinely and without


the knowledge of the possessor
Article 1108, Civil Code. Possession has to be in
the concept of an owner, public, peaceful and
uninterrupted.

3. Acts of violence as long as the


possessor objects thereto (i.e. he files a
case)
Article 536, Civil Code. In no case may possession
be acquired through force or intimidation as long as
there is a possessor who objects thereto. He who
believes that he has an action or a right to deprive
another of the holding of a thing, must invoke the aid
of the competent court, if the holder should refuse to
deliver the thing.

Possession acquired by force, not only


when one forcibly takes away the
property from another, but also when
one occupied the property in the
property in the absence of another, and
repels the latter upon his return.
Force may be actual or threatened; and
may be employed by the possessor
himself, or by another for him, and
against any possessor.
Effect on Possession: Acts mentioned
do not constitute true possession. They
do not interrupt the period of prescription
nor affect the rights to the fruits.
For all purposes that may be favorable
to the true possessor, his possession is
not considered interrupted.

D. Rules to Solve Conflicts of Possession


Article 538, Civil Code. Possession as a fact
cannot be recognized at the same time in two
different personalities except in the cases of copossession. Should a question arise regarding the
fact of possession, the present possessor shall be
preferred; if there are two possessors, the one
longer in possession; if the dates of the possession
are the same, the one who presents a title; and if all
these conditions are equal, the thing shall be placed
in judicial deposit pending determination of its
possession
or
ownership
through
proper
proceedings.

General Rule
Possession cannot be recognized in two
different personalities, except in cases of copossession by co-possessors without conflict of
claims of interest.
In case of conflicting possession
preference is given to
1. Present possessor or actual possessor
2. If there are two or more possessors, the one
longer in possession
3. If the dates of possession are the same, the
one who presents a title
4. If all conditions are equal, the thing shall be
placed
in
judicial
deposit
pending
determination of possession or ownership
through proper proceedings

VIII.

Effects of Possession

A. Right to be Protected in His Possession


In general, every possessor has a right to be
respected in his possession; if disturbed therein,
possessor has a right to be protected in or
restored to said possession.
Article 539, Civil Code. Every possessor has a
right to be respected in his possession; and should
he be disturbed therein he shall be protected in or
restored to said possession by the means
established by the laws and the Rules of Court.
A possessor deprived of his possession through
forcible entry may within ten days from the filing of
the complaint present a motion to secure from the
competent court, in the action for forcible entry, a
writ of preliminary mandatory injunction to restore
him in his possession. The court shall decide the
motion within thirty (30) days from the filing thereof.

Every possessor includes all kinds of


possession, from that of an owner to that of a
mere holder, except that which constitutes a
crime.
Reason for the rule: To prevent anyone from
taking the administration of justice into his own
hands. Even the owner cannot forcibly eject the
possessor, but must resort to the courts.
Actions to Recover Possession
1. Summary proceedings Forcible entry and
Unlawful detainer
Article 1674, Civil Code. In ejectment cases where
an appeal is taken the remedy granted in Article
539, second paragraph, shall also apply, if the
higher court is satisfied that the lessee's appeal is

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PROPERTY

and cannot be the basis of acquisitive


prescription. Possession to constitute
the foundation of prescriptive right, must
be possession under claim of title, it
must be adverse. (Cuaycong v.
Benedicto)

Chapter VI. POSSESSION

Chapter VI. POSSESSION

frivolous or dilatory, or that the lessor's appeal is


prima facie meritorious. The period of ten days
referred to in said article shall be counted from the
time the appeal is perfected.

Plaintiff may ask for writ of preliminary


mandatory injunction within 10 days
from filing of complaint in forcible entry
(Art. 539). The same writ is available in
unlawful detainer actions upon appeal.
(Art. 1674)
Forcible entry and Unlawful
Detainer
Rule 70, Rules of Court gives any
person deprived of the possession of
any land or building by force,
intimidation, strategy, or stealth at any
time within one year after such unlawful
deprivation, the action of forcible entry.
by force, intimidation, strategy, or
stealth includes every situation or
condition under which one person can
wrongfully enter upon real property and
exclude another, who has had prior
possession therefrom.

2. Accion Publiciana (based on superior right


of possession, no ownership)
Action for the recovery of possession of
real property upon mere allegation and
proof of a better title thereto
3. Accion
Reinvindicatoria
(recovery
of
possession based on a claim of ownership)
An action setting up title and right to
possession
Not barred by a judgment in an action
for forcible entry and unlawful detainer
4. Action for Replevin (possession
ownership for movable property)

or

It is only the conviction of ownership externally


manifested, which generates ownership.
Acts of possessory character done by virtue of a
license or mere tolerance on the part of the real
owner are not sufficient and will not confer title
by prescription or adverse possession.
The following cannot acquire title by prescription:
1. Lessees, trustees, pledges, tenants on
shares or planters and all those who hold in
the name or representation of another;
2. Mere holders placed in possession of the
property by the owner, such as agents,
employees;
3. Those holding in a fiduciary character, like
receivers, attorneys, depositaries and
antichretic creditors
4. Co-owner, with regard to common property;
Except: When he holds the same adversely
against all of them with notice to them the
exclusive claim of ownership
Article 542, Civil Code. The possession of real
property presumes that of the movables therein, so
long as it is not shown or proved that they should be
excluded.

Refers to all kinds of possession, whether in


concept of owner or not, in good faith or in bad
faith, and in ones own name or anothers in
reference to things only, NOT rights.
Article 543, Civil Code. Each one of the
participants of a thing possessed in common shall
be deemed to have exclusively possessed the part
which may be allotted to him upon the division
thereof, for the entire period during which the copossession lasted. Interruption in the possession of
the whole or a part of a thing possessed in common
shall be to the prejudice of all the possessors.
However, in case of civil interruption, the Rules of
Court shall apply.

Lawful Possessor Can Employ Self-help


Article 429, Civil Code. The owner or lawful
possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or
usurpation of his property
Article 540, Civil Code. Only the possession
acquired and enjoyed in the concept of owner can
serve as a title for acquiring dominion.

To consolidate title by prescription, the


possession must be under claim of ownership,
and it must be peaceful, public and uninterrupted

B. Entitlement to fruits possessor in good


faith/bad faith (Art. 544, 549)
Article 544, Civil Code. A possessor in good faith is
entitled to the fruits received before the possession
is legally interrupted.
Natural and industrial fruits are considered received
from the time they are gathered or severed.
Civil fruits are deemed to accrue daily and belong to
the possessor in good faith in that proportion.

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Chapter VI. POSSESSION

Right of the possessor in good faith


Only limited to the fruits of the thing. He must
restore the fruits received from the time such
good faith ceased. He has no rights to the
objects which do not constitute fruits.
Legal interruption of possession in good
faith
Takes place when an action is filed against
himfrom the time he learns of the complaint,
from the time he is summoned to the trial.
Article 545, Civil Code. If at the time the good faith
ceases, there should be any natural or industrial
fruits, the possessor shall have a right to a part of
the expenses of cultivation, and to a part of the net
harvest, both in proportion to the time of the
possession.
The charges shall be divided on the same basis by
the two possessors.
The owner of the thing may, should he so desire,
give the possessor in good faith the right to finish the
cultivation and gathering of the growing fruits, as an
indemnity for his part of the expenses of cultivation
and the net proceeds; the possessor in good faith
who for any reason whatever should refuse to
accept this concession, shall lose the right to be
indemnified in any other manner.
Old Civil Code
Possessor in GF was
reimbursed the entire
expense of cultivation
incurred by him

New Civil Code


Proportionate division of
expenses of production

Charges Those which are incurred,


not on the thing itself but because of it.
It is borne by the two possessors in
proportion
to
their
respective
possession.

It includes every presentation required


of the possessor by reason of
possession of the thing, whether it
constitutes a real right or not.
e.g. Taxes, contributions in favor of the
government

When fruits are insufficient


There should only be reimbursement of
expenses; but each possessor should suffer a
proportionate reduction due to the insufficiency
of the harvest.

C. Reimbursement
for
Expenses
Possessor in Good Faith/Bad Faith
Article 546, Civil Code. Necessary expenses shall
be refunded to every possessor; but only the
possessor in good faith may retain the thing until he
has been reimbursed therefor.
Useful expenses shall be refunded only to the
possessor in good faith with the same right of
retention, the person who has defeated him in the
possession having the option of refunding the
amount of the expenses or of paying the increase in
value which the thing may have acquired by reason
thereof.

Necessary Expenses
1. Imposed by the thing itself and have no
relation to the desire or purpose of the
possessor; hence they are reimbursed,
whatever may be the juridical character of
the person who advanced them.
2. They are the cost of living for the thing and
must be reimbursed to the one who paid
them, irrespective of GF or BF. Only a
possessor in GF is entitled to retain the thing
until he is reimbursed
3. Those imposed for the preservation of the
thing.
They
are
not
considered
improvements; they do not increase the
value of the thing, but merely prevent them
from becoming useless.
Useful Expenses
1. Incurred to give greater utility or productivity
to the thing
2. e.g. Wall surrounding an estate, an irrigation
system, planting in an uncultivated land, a
fishpond, an elevator in the building, electric
lighting system
3. They are reimbursed only to the possessor
in GF as a compensation or reward for him.
Possessor in BF cannot recover such
expenses

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PROPERTY

Provision is based on the following reasons


of equity
1. The fruits received are generally used for
the consumption and livelihood of the
possessor, and his life and expenses may
have been regulated in view of such fruits
2. The owner has been negligent in not
discovering or contesting the possession of
the possessor; it would be unjust after the
possessor has been thus allowed to rely on
the efficacy of the title, to require him to
return the fruits he has received on the basis
of that title.
3. Between the owner, who has abandoned his
property and left it unproductive, and the
possessor, who has contributed to the social
wealth, by the fruits he has produced, the
law leans toward the latter

CIVIL LAW REVIEWER

Chapter VI. POSSESSION

Article 548, Civil Code. Expenses for pure luxury or


mere pleasure shall not be refunded to the
possessor in good faith; but he may remove the
ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to
refund the amount expended.

Expenses for Luxury


1. They do not affect the existence or the
substance of the thing itself, but only the
comfort, convenience or enjoyment of the
possessor. They are not the subject of
reimbursement, because the law does not
compensate personal whims or caprices.
2. e.g. Opening of a garden, placing fountains
and statues in it, adorning the ceilings
paintings, and the walls with reliefs

Article 549, Civil Code. The possessor in bad faith


shall reimburse the fruits received and those which
the legitimate possessor could have received, and
shall have a right only to the expenses mentioned in
paragraph 1 of Article 546 and in Article 443. The
expenses incurred in improvements for pure luxury
or mere pleasure shall not be refunded to the
possessor in bad faith, but he may remove the
objects for which such expenses have been
incurred, provided that the thing suffers no injury
thereby, and that the lawful possessor does not
prefer to retain them by paying the value they may
have at the time he enters into possession..
Article 550, Civil Code. The costs of litigation over
the property shall be borne by every possessor.
Article 550, Civil Code. Improvements caused by
nature or time shall always inure to the benefit of the
person who has succeeded in recovering
possession

Useful Expenses
Those which increase the
income derived from the
thing
Result: Increase in the
products, either
absolutely, or because of
greater facilities for
producing them
Includes expenses
resulting in real benefit or
advantage to the thing
The resulting utility is
essential and absolute, to
all who may have the
thing.

Fruits Received

Pending Fruits

Charges
Necessary
Expenses

Expenses for Luxury


Those which merely
embellished the thing

Result: Benefit or
advantage is only for the
convenience of definite
possessors

The utility is for the


possessor or particular
persons alone and is
therefore accidental.

Includes all the natural accessions


referred to by articles 457-465, and all
those which do not depend upon the will
of the possessor.
e.g. widening of the streets, rising of
fountains of fresh or mineral water,
increase of foliage of trees

Liability for loss or deterioration of property


by possessor in bad faith
Article 552, Civil Code. A possessor in good faith
shall not be liable for the deterioration or loss of the
thing possessed, except in cases in which it is
proved that he has acted with fraudulent intent or
negligence, after the judicial summons.
A possessor in bad faith shall be liable for
deterioration or loss in every case, even if caused by
a fortuitous event.

Possessor in GF
Entitled to the fruits while possession is in GF
and before legal interruption (544)
Entitled to part of the expenses of cultivation,
and to a part of the net harvest, in proportion
to the time of the possession.
Indemnity may be, at the owners option,
1. In money, OR
2. By allowing full cultivation and gathering
of the fruits (545)
Must share with the legitimate possessor, in
proportion to the time of the possession (545)
Right to reimbursement and retention in the
meantime (546)

Possessor in BF
Must reimburse the legitimate possessor
(549)

Must reimburse the legitimate possessor


(549)

Same as with GF (545)

Reimbursement only (546)

176
PROPERTY

Article 547, Civil Code. If the useful improvements


can be removed without damage to the principal
thing, the possessor in good faith may remove them,
unless the person who recovers the possession
exercises the option under paragraph 2 of the
preceding article.

CIVIL LAW REVIEWER

Chapter VI. POSSESSION


Right of retention until reimbursed; Owners
option to reimburse him either for expenses
or for increase in value which the thing may
have acquired (546)

No right to reimbursement and no right of


removal (547)

Useful Expenses
Limited right of removal should not damage
principal and owner does not exercise option
of paying the expenses or increase in value
(547)
Limited right of removal (548)

Limited right of removal (549)

No liability unless due to fraud or negligence


after becoming in BF (552)
Bears cost (550)

D. Possession of Movable Acquired in Good


Faith (in concept of owner) is Equivalent
to Title (Art. 559)
Article 559, Civil Code. The possession of movable
property acquired in good faith is equivalent to a
title. Nevertheless, one who has lost any movable or
has been unlawfully deprived thereof may recover it
from the person in possession of the same.
If the possessor of a movable lost or which the
owner has been unlawfully deprived, has acquired it
in good faith at a public sale, the owner cannot
obtain its return without reimbursing the price paid
therefor

Liable in every case (552)


Bears cost (550)

Basis:
Possession
is
presumed
ownership, unless the contrary is
proved. This presumption is prima facie
and it prevails until contrary is proved.

Just title that which is legally sufficient


to transfer the ownership or the real right
to which it relates.

For the purposes of prescription, there is


just title when the adverse claimant
came into possession of the property
through one of the modes recognized by
law for the acquisition of ownership or
other real rights, but the grantor was not
the owner or could not transmit any
right. (Art. 1129)

Exception

Possessor has actual title which is defeasible


only by true owner.
Requisites of Title
1. Possession in GF
2. The owner has voluntarily parted with the
possession of the thing
3. The possession is in the concept of an
owner
When the owner can recover
1. Has lost the thing
2. Has been unlawfully deprived thereof

Article 1131, Civil Code. For the purposes of


prescription, just title must be proved; it is never
presumed.

3. Possessor may bring all actions necessary


to
protect
his
possession
except
revindicatoria
4. May employ self help under Art. 429

IX. Effects of Possession in the Concept


of Owner

5. Possessor may ask for inscription of such


real right of possession in the registry of
property

1. Possession may be lapsed of time ripen into


full ownership, subject to certain exceptions.

6. Has right to the fruits and reimbursement of


expenses (assuming he is possessor in
good faith)

2. Presumption of just title and cannot be


obliged to show or prove it (Art. 541);
exception (Art. 1131)
Article 541, Civil Code. A possessor in the concept
of owner has in his favor the legal presumption that
he possesses with a just title and he cannot be
obliged to show or prove it.

7. Upon recovery of possession which has


unlawfully deprived may demand fruits and
damages
8. Generally, he can do on the things
possessed everything that the law

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PROPERTY

Ornamental
Expenses
Deterioration of
Loss
Costs of Litigation

Chapter VI. POSSESSION

authorizes the owner to do until he is ousted


by one who had a better right.
9. Possession in good faith and possession in
bad faith (Art. 528)
Mistake upon doubtful or difficult
question of law as a basis of good faith
(Art. 526, par 3)

X. Presumption in
Possessorfor
Prescription

Favor

of the
Acquisitive

Of good faith until contrary is proved


Article 527, Civil Code. Good faith is always
presumed, and upon him who alleges bad faith on
the part of a possessor rests the burden of proof.

Presumption is only juris tantum because


possession is the outward sign of
ownership. Unless such proof of bad faith is
presented, the possessor will be held to be
in good faith.
So long as the possessor is not actually
aware of any defect invalidating his title, he
is deemed a possessor in good faith.

Of continuity of initial good faith in which


possession was commenced of possession
in good faith does not lose this character
except in case and from the moment
possessor became aware or is not unaware
of improper or wrongful possession
Article 528, Civil Code. Possession acquired in
good faith does not lose this character except in the
case and from the moment facts exist which show
that the possessor is not unaware that he possesses
the thing improperly or wrongfully.

Good faith ceases from the date of the


summons to appear at the trial
Good faith ceases when there is:
a. Extraneous evidence
b. Suit for recovery of the property by the
true owner

Of enjoyment of possession in the same


character in which possession was required
until contrary is proved
Article 529, Civil Code. It is presumed that
possession continues to be enjoyed in the same
character in which it was acquired, until the contrary
is proved.

Of non-interruption of possession in favor of


present possessor who proves possession
at a previous time until the contrary is
proved
Article 554, Civil Code. A present possessor who
shows his possession at some previous time, is
presumed to have held possession also during the
intermediate period, in the absence of proof to the
contrary.
Article 1120, Civil Code. Possession is interrupted
for the purposes of prescription, naturally or civilly.
Article 1121, Civil Code. Possession is naturally
interrupted when through any cause it should cease
for more than one year.
The old possession is not revived if a new
possession should be exercised by the same
adverse claimant.
Article 1122, Civil Code. If the natural interruption
is for only one year or less, the time elapsed shall be
counted in favor of the prescription.
Article 1123, Civil Code. Civil interruption is
produced by judicial summons to the possessor.
Article 1124, Civil Code. Judicial summons shall be
deemed not to have been issued and shall not give
rise to interruption:
1. If it should be void for lack of legal
solemnities;
2. If the plaintiff should desist from the
complaint or should allow the proceedings
to lapse;
3. If the possessor should be absolved from
the complaint.
In all these cases, the period of the interruption shall
be counted for the prescription

Other presumptions with respect to specific


properties of property rights
1. Of extension of possession of real property
to all movables contained therein so long as
in is not shown that they should be
excluded; exceptions.
Article 426, Civil Code. Whenever by provision of
the law, or an individual declaration, the expression
"immovable things or property," or "movable things
or property," is used, it shall be deemed to include,
respectively, the things enumerated in Chapter 1
and Chapter 2.
Whenever the word "muebles," or "furniture," is used
alone, it shall not be deemed to include money,
credits, commercial securities, stocks and bonds,
jewelry, scientific or artistic collections, books,
medals, arms, clothing, horses or carriages and their
accessories, grains, liquids and merchandise, or
other things which do not have as their principal

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PROPERTY

CIVIL LAW REVIEWER

object the furnishing or ornamenting of a building,


except where from the context of the law, or the
individual declaration, the contrary clearly appears.

Chapter VI. POSSESSION

2. Non-interruption of possession of hereditary


property
Article 553, Civil Code. The possession of
hereditary property is deemed transmitted to the heir
without interruption and from the moment of the
death of the decedent, in case the inheritance is
accepted.
One who validly renounces an inheritance is
deemed never to have possessed the same.
Article 1078, Civil Code. Where there are two or
more heirs, the whole estate of the decedent is,
before its partition, owned in common by such heirs,
subject to the payment of debts of the deceased.

3. Of just title in favor of possessor in concept


of owner
Article 541, Civil Code. A possessor in the concept
of owner has in his favor the legal presumption that
he possesses with a just title and he cannot be
obliged to show or prove it.

B. Assignment, either onerous or gratuitous


Complete transmission of ownership
rights to another person, gratuitously or
onerously
C. Possession by another; if possession
has lasted longer than one year; real
right of possession not lost after 10
years - (Subject to Article 537)
Article 537, Civil Code. Acts merely tolerated, and
those executed clandestinely and without the
knowledge of the possessor of a thing, or by
violence, do not affect possession.

Article 1141, Civil Code. Real actions over


immovables prescribe after thirty years.
This provision is without prejudice to what is
established for the acquisition of ownership and
other real rights by prescription.

XI. Possesion May Be Lost By


Article 555, Civil Code. A possessor may lose his
possession:
1. By the abandonment of the thing;
2.

By an assignment made to another either by


onerous or gratuitous title;

3.

By the destruction or total loss of the thing, or


because it goes out of commerce;

4.

By the possession of another, subject to the


provisions of Article 537, if the new possession
has lasted longer than one year. But the real
right of possession is not lost till after the lapse
of ten years.

A. Abandonment
Includes the giving up possession, and
not necessarily of ownership by every
possessor.

It is the opposite occupation. It consists


of the voluntary renunciation of all the
rights which the person may have in a
thing, with intent to lose such a thing. To
be effective, it must be necessary that it
be made by a possessor in the concept
of an owner.
It must be clearly appear that the spes
recuperandi is gone and the animus
revertendi is finally given up.

Possession that is lost here refers only


to possession as a fact (de facto), not
the legal right of possession (de jure). It
is the possession that the new
possessor acquires.
Real right of possession is lost only after
10 years.
After one year, the actions for forcible
entry and unlawful detainer can no
longer be brought. But accion publiciana
may still be instituted to recover
possession de jure

Article 553, Civil Code. One who recovers


possession shall not be obliged to pay for
improvements which have ceased to exist at the
time he takes possession of the thing.

The improvements, having ceased to


exist, the lawful possessor or owner
cannot benefit from them; hence he
should not pay for them.
Necessary expenses are not considered
improvements, and even if the object for
which they were incurred no longer
exists at the time of entry upon
possession, the lawful possessor or
owner has to pay for them.

Article 557, Civil Code. The possession of


immovables and of real rights is not deemed lost, or
transferred for purposes of prescription to the
prejudice of third persons, except in accordance with

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PROPERTY

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

Chapter VI. POSSESSION

the provisions of the Mortgage Law and the Land


Registration laws.

Third parties relying on the Registry of


Property are privileged to consider the
registered possessors or owners as still
such in spite of loss

Article 558, Civil Code. Acts relating to possession,


executed or agreed to by one who possesses a
thing belonging to another as a mere holder to enjoy
or keep it, in any character, do not bind or prejudice
the owner, unless he gave said holder express
authority to do such acts, or ratifies them
subsequently.

Article 556, Civil Code. The possession of


movables is not deemed lost so long as they remain
under the control of the possessor, even though for
the time being he may not know their whereabouts.

Control judicial control or right, or


that the thing remains in ones patrimony

Article 560, Civil Code. Wild animals are


possessed only while they are under one's control;
domesticated or tamed animals are considered
domestic or tame if they retain the habit of returning
to the premises of the possessor.

Kinds of Animals:
1. Wildthose
which
live
naturally
independent of man
2. Domesticatedthose which, being wild by
nature, have become accustomed to
recognize the authority of man. When they
observe this custom, they are placed in the
same category as domestic and when they
lose it, they are considered as wild.
3. Domestic or Tamethose which are
bornand reared ordinarily under the control
and care of man; they are under the
ownership of man, and do not become res
nullius unless they are abandoned.

180
PROPERTY

Rules for Loss of Movables:

CIVIL LAW REVIEWER

Chapter VII. USUFRUCT

Chapter VII. Usufruct

I.

Concept

Article 562, Civil Code. Usufruct gives a right to


enjoy the property of another with the obligation of
preserving its form and substance, unless the title
constituting it or the law otherwise provides.

Objects of Usufruct
1. Independent Rights
A servitude which is dependent on the
tenement to which it attaches cannot be
the object of usufruct
2. Things
Non-consumable things
Consumable things, but only as to their
value if appraised, or on an equal
quantity and quality if they were not
appraised
3. Unproductive things e.g. sterile or absolutely
unproductive land, or things for mere
pleasure, such as promenades, statues or
paintings, even if they do not produce any
utility.

c.

Exception: In an abnormal usufruct,


alteration is allowed
3. Usufruct is extinguished by the death of the
usufructuary
a. Natural because a contrary intention
may prevail

III. Usufruct Distiguished from Lease


and Servitude
Usufruct vs. Lease
Basis
By the nature of
the right
By the creator
of the right

By the cause

By the extent of
enjoyment

By the origin

As regards
repairs and
taxes

Usufruct
Always a real
right
Owner
Passive owner
who allows the
usufructuary to
enjoy the thing
Generally
covers all the
utility of which
the thing is
capable
May be created
by law, by will of
the parties, or
by prescription
Pays for
ordinary repairs
and taxes on
the fruits

181
Lease
Quasi-real or
personal right
Need not be an
owner
Active owner or
lessor who
makes the
lessee enjoy
the thing
Generally
covers a
particular utility
May only be
created by the
will of the
parties
Generally not
borne by a
lessee

Usufruct vs. Servitude

II. Characteristics
Basis

Characteristics
1. It is a real right
2. Of temporary duration
3. To derive all advantages from the thing due
to normal exploitation
Natural Characteristics
1. Includes only the right to use (jus utendi)
and the right to the fruits (jus fruendi)
2. Usufructuary must preserve the form or
substance of the thing
a. Preservation is a natural requisite, not
essential because the title constituting it
or the law may provide otherwise
b. Reason for preserving form and
substance
To prevent extraordinary
exploitation;

As to the object
By the extent or
enjoyment

Usufruct
May involve
real or personal
property
Covers all the
uses of the
thing

Servitudes
May only
involve real
property
Limited to a
particular use

Similarities
between
Usufruct
and
Servitude
Both are real rights, whether registered or not.
1. Both rights may be registered, provided that
the usufruct involves real property. All
easements of course concerns real property.
2. Both may ordinarily be alienated or
transmitted in accordance with the
formalities set by law.

PROPERTY

I. CONCEPT
II. CHARACTERISTICS
III. DISTINGUISHED
FROM
LEASE
AND
SERVITUDE
IV. CLASSIFICATION
V. RIGHTS OF USUFRUCTUARY
VI. OBLIGATIONS OF USUFRUCTUARY
A. AT THE BEGINNING OF THE USUFRUCT
B. DURING THE USUFRUCT
C. AT THE TIME OF THE TERMINATION OF
THE USUFRUCT
VII. SPECIAL CASES
VIII. EXTINGUISHMENT

To prevent abuse, which is frequent;


To prevent impairment.

CIVIL LAW REVIEWER

A. By Origin
Article 563, Civil Code. Usufruct is constituted by
law, by the will of private persons expressed in acts
inter vivos or in a last will and testament, and by
prescription.

1. Voluntary: created by the will of private


persons
a. By act inter vivos such as contracts
and donations
By alienation of the usufruct
By retention of the usufruct
Where a usufruct is constituted inter
vivos and for valuable consideration,
the contract is unenforceable unless
in writing
b. By act mortis causa such as testament
2. Legal: as provided by law
Usufruct of parents over the property of
unemancipated children (now limited to the
collectively daily needs of the family as per
the Family Code)
Article 226, Family Code. The property of the
unemancipated child earned or acquired with his
work or industry or by onerous or gratuitous title
shall belong to the child in ownership and shall be
devoted exclusively to the latter's support and
education, unless the title or transfer provides
otherwise.
The right of the parents over the fruits and income of
the child's property shall be limited primarily to the
child's support and secondarily to the collective daily
needs of the family.

3. Mixed: created both by law and the acts of


persons
Article 565, Civil Code. The rights and obligations
of the usufructuary shall be those provided in the
title constituting the usufruct; in default of such title,
or in case it is deficient, the provisions contained in
the two following Chapters shall be observed.

The rights and duties of the usufructuary


provided by law may be modified or
eliminated by the parties.
The title constituting the usufruct may
validly authorize the usufructuary to
alienate the thing itself held in usufruct.
If the usufructuary is authorized to
alienate the thing in case of
necessity, it is the usufructuary who

determines
necessity.

the

question

of

B. By Person Enjoying Right of Usufruct


Article 564, Civil Code. Usufruct may be
constituted on the whole or a part of the fruits of the
thing, in favor of one more persons, simultaneously
or successively, and in every case from or to a
certain day, purely or conditionally. It may also be
constituted on a right, provided it is not strictly
personal or intransmissible.

1. Simple: only one usufructuary enjoys the


property
2. Multiple: several usufructuaries enjoy the
property
a. Simultaneous: at the same time
b. Successive: one after the other
Limitations on successive usufruct
1. If usufruct is by donation, ALL donees must
be alive.
Article 756, Civil Code. The ownership of property
may also be donated to one person and the usufruct
to another or others, provided all the donees are
living at the time of the donation.

2. Fiduciary or first heir and the second heir


must be alive at the time of the death of the
testator.
Article 863, Civil Code. A fideicommissary
substitution by virtue of which the fiduciary or first
heir instituted is entrusted with the obligation to
preserve and to transmit to a second heir the whole
or part of the inheritance, shall be valid and shall
take effect, provided such substitution does not go
beyond one degree from the heir originally instituted,
and provided further, that the fiduciary or first heir
and the second heir are living at the time of the
death of the testator.

3. If by testamentary succession, there must


be only 2 successive usufructuaries, and
both must be alive or at least already
conceived at the time of the testators death.
Article 869, Civil Code. A provision whereby the
testator leaves to a person the whole or part of the
inheritance, and to another the usufruct, shall be
valid. If he gives the usufruct to various persons, not
simultaneously, but successively, the provisions of
Article 863 shall apply

C. By Object of Usufruct
Article 564, Civil Code. Usufruct may be
constituted on the whole or a part of the fruits of the
thing, in favor of one more persons, simultaneously
or successively, and in every case from or to a

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PROPERTY

IV. Classes of Usufruct

Chapter VII. USUFRUCT

CIVIL LAW REVIEWER

1. Rights
a. Must not be strictly personal or
intransmissible.
b. Usufruct over a real right is by itself a
real right.
c. Right to receive present or future
support cannot be the object of the
usufruct.
2. Things
a. Normal: involves non-consummable
things where the form and substance
are preserved
b. Abnormal or irregular
Article 574, Civil Code. Whenever the usufruct
includes things which cannot be used without being
consumed, the usufructuary shall have the right to
make use of them under the obligation of paying
their appraised value at the termination of the
usufruct, if they were appraised when delivered. In
case they were not appraised, he shall have the
right to return at the same quantity and quality, or
pay their current price at the time the usufruct
ceases.

In reality, the usufruct is not upon


the consumable things themselves
which are
delivered
to the
usufructuary, but upon the sum
representing their value or upon a
quantity of things of the same kind
and quality.
The usufructuary, in effect, becomes
the owner of the things in usufruct,
while the grantor becomes a mere
creditor entitled to the return of the
value or of the things of the same
quantity and quality (as if converted
into a simple loan)

D. By the Extent of the Usufruct


Article 564, Civil Code. Usufruct may be
constituted on the whole or a part of the fruits of the
thing, in favor of one more persons, simultaneously
or successively, and in every case from or to a
certain day, purely or conditionally. It may also be
constituted on a right, provided it is not strictly
personal or intransmissible.

1. As to the fruits
a. Total: all consumed by the usufruct
b. Partial: only on certain aspects of the
usufructs fruits

2. As to object
a. Singular: only on particular property of
the owner
b. Universal: pertains to the whole
property;
Article 598, Civil Code. If the usufruct be
constituted on the whole of a patrimony, and if at the
time of its constitution the owner has debts, the
provisions of Articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of
the usufructuary to pay such debts.
The same rule shall be applied in case the owner is
obliged, at the time the usufruct is constituted, to
make periodical payments, even if there should be
no known capital.
Article 595, Civil Code. The owner may construct
any works and make any improvements of which the
immovable in usufruct is susceptible, or make new
plantings thereon if it be rural, provided that such
acts do not cause a diminution in the value of the
usufruct or prejudice the right of the usufructuary.

A universal usufructuary must pay the


debts of the naked owner, if stipulated.
If there are no stipulations, the
usufructuary only has to pay when the
usufruct has been made in fraud of
creditors.

Article 758, Civil Code. When the donation


imposes upon the donee the obligation to pay the
debts of the donor, if the clause does not contain
any declaration to the contrary, the former is
understood to be liable to pay only the debts which
appear to have been previously contracted. In no
case shall the donee be responsible for the debts
exceeding the value of the property donated, unless
a contrary intention clearly appears.
Article 759, Civil Code. There being no stipulation
regarding the payment of debts, the donee shall be
responsible therefor only when the donation has
been made in fraud of creditors.
The donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to
the donation.

E. By the Terms of the Usufruct


1. Pure: no terms or conditions
2. Conditional: either suspensive or resolutory
3. With a term or period
a. Ex die: from a certain day
b. In diem: up to a certain day
c. Ex die in diem: from a certain day up to
a certain day

183
PROPERTY

certain day, purely or conditionally. It may also be


constituted on a right, provided it is not strictly
personal or intransmissible.

Chapter VII. USUFRUCT

CIVIL LAW REVIEWER

A. As to Thing and Its Fruits


1. Right to enjoy the property to the same
extent as the owner, but only with respect to
its use and the receipt of its fruits.
Article 566, Civil Code. The usufructuary shall be
entitled to all the natural, industrial and civil fruits of
the property in usufruct. With respect to hidden
treasure which may be found on the land or
tenement, he shall be considered a stranger.

Usufructuary cannot extract products


which do not constitute fruits because
he is bound to preserve the form and
substance of the thing.
Usufructuary rights may be transferred,
assigned or otherwise disposed of by
the usufructuary.
Not exempt from execution and can be
sold at public auction.

2. As to hidden treasure, usufructuary is


considered a stranger without a right to a
share, unless he is also the finder of the
treasure
Article 566, Civil Code. The usufructuary shall be
entitled to all the natural, industrial and civil fruits of
the property in usufruct. With respect to hidden
treasure which may be found on the land or
tenement, he shall be considered a stranger.
Article 438, Civil Code. Hidden treasure belongs to
the owner of the land, building, or other property on
which it is found.
Nevertheless, when the discovery is made on the
property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall
be allowed to the finder. If the finder is a trespasser,
he shall not be entitled to any share of the treasure.
If the things found be of interest to science of the
arts, the State may acquire them at their just price,
which shall be divided in conformity with the rule
stated.

3. Right to fruits pending at the beginning of


usufruct
Article 567, Civil Code. The usufructuary shall be
entitled to all the natural, industrial and civil fruits of
the property in usufruct. With respect to hidden
treasure which may be found on the land or
tenement, he shall be considered a stranger.
Article 438, Civil Code. Hidden treasure belongs to
the owner of the land, building, or other property on

which it is found.
Nevertheless, when the discovery is made on the
property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall
be allowed to the finder. If the finder is a trespasser,
he shall not be entitled to any share of the treasure.
If the things found be of interest to science of the
arts, the State may acquire them at their just price,
which shall be divided in conformity with the rule
stated.
Fruits pending at the
beginning of the
usufruct
Belong to the
usufructuary
Without need to
reimburse the expenses
to the owners

Without prejudice to the


rd
right of 3 persons e.g. if
the fruits had been
planted by a possessor
in good faith, the
pending crop expenses
and charges shall be
prorated between said
possessor and the
usufructuary

Fruits pending at the


time of termination of
the usufruct
Belong to the naked
owner
The owner shall
reimburse to the
usufructuary ordinary
cultivation expenses
from the proceeds of the
fruits (not to exceed the
value of the fruits)
rd
Rights of innocent 3
parties should not be
prejudiced.

Fruits already matured at the time of the


termination of the usufruct, which
ordinarily would have already been
gathered by the usufructuary, may
remain ungathered for no fault imputable
to him, but because of malice or an act
rd
imputable to the naked owner or a 3
person, or even due to force majeure or
fortuitous event.

4. Right to civil fruits


Article 569, Civil Code. Civil fruits are deemed to
accrue daily, and belong to the usufructuary in
proportion to the time the usufruct may last.
Article 570, Civil Code. Whenever a usufruct is
constituted on the right to receive a rent or periodical
pension, whether in money or in fruits, or in the
interest on bonds or securities payable to bearer,
each payment due shall be considered as the
proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits
accruing from a participation in any industrial or
commercial enterprise, the date of the distribution of
which is not fixed, such benefits shall have the same
character.

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PROPERTY

V. Rights of Usufructuary

Chapter VII. USUFRUCT

Chapter VII. USUFRUCT

In either case they shall be distributed as civil fruits,


and shall be applied in the manner prescribed in the
preceding article.

5. Right to enjoy any increase through


accessions and servitudes, including
products of hunting and fishing

Article 571, Civil Code. The usufructuary shall have


the right to enjoy any increase which the thing in
usufruct may acquire through accession, the
servitudes established in its favor, and, in general,
all the benefits inherent therein

6. Right to lease the thing


Article 572, Civil Code. The usufructuary may
personally enjoy the thing in usufruct, lease it to
another, or alienate his right of usufruct, even by a
gratuitous title; but all the contracts he may enter
into as such usufructuary shall terminate upon the
expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting
during the agricultural year.

a. Exceptions:
Legal usufructs cannot be leased.
Caucion juratoria (lease would
show that the usufructuary does not
need the property badly)
b. Effect of the transfer of right:
The transfer or lease of the usufruct
does NOT terminate the relation of
the usufructuary with the owner
Death of the transferee does not
terminate the usufruct but it
terminates upon the death of the
usufructuary who made the transfer.
c. Rules as to Lease
The property in usufruct may be
leased even without the consent of
the owner.
The lease should be for the same
period as the usufruct.
EXCEPT: leases of rural lands
continues for the remainder of
the agricultural year
A lease executed by the
usufructuary
before
the
termination of the usufruct and
subsisting after the termination
of the usufruct must be
respected, but the rents for the
remaining period will belong to
the owner.
o If the usufructuary has
leased
the
lands
or
tenements given in usufruct,
and the usufruct should

expire
before
the
termination of the lease, he
or his heirs and successors
shall receive only the
proportionate share of the
rent that must be paid by
the lessee. (Art. 568, Civil
Code)
It is the usufructuary and not the
naked owner who has the right
to choose the tenant.
o As corollary to the right of
the usufructuary to all the
rent, to choose the tenant,
and to fix the amount of the
rent, she necessarily has
the right to choose herself
as the tenant thereof; and,
as long as the obligations
she had assumed towards
the owner are fulfilled.
(Fabie v. Gutierrez David)
A lease executed by the owner
before the creation of the
usufruct is not extinguished by
such usufruct.

d. Limitations on the Right to Lease the


Property
Usufructuary cannot alienate a thing
in usufruct
Cannot alienate or dispose of
the objects included in the
usufruct
Cannot renounce a servitude
Cannot mortgage or pledge a
thing
EXCEPT: When the right of
usufruct is converted into the
right of ownership
o When
the
things
are
consumable (574);
o When the things by their
nature are intended for sale,
such as the merchandise in
a
commercial
establishment; and
o When the things, whatever
their nature, are delivered
under
appraisal
as
equivalent to their sale

Future crops may be sold but such


sale would be void if not ratified by
the owner.
The buyers remedy is to
recover from the usufructuary.
Only voluntary usufruct can be
alienated.

185
PROPERTY

CIVIL LAW REVIEWER

CIVIL LAW REVIEWER

7. Right to improve the thing, but improvement


inures for the benefit of the naked owner
Article 579, Civil Code. The usufructuary may
make on the property held in usufruct such useful
improvements or expenses for mere pleasure as he
may deem proper, provided he does not alter its
form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove
such improvements, should it be possible to do so
without damage to the property.

Usufructuary
is
not
entitled
to
reimbursement.
Whenever the usufructuary can remove
the improvements without injury to the
property in usufruct, he has the right to
do so, and the owner cannot prevent
him from doing so even upon payment
of their value.
This right does not involve an obligation
if the usufructuary does not wish to
exercise it, he cannot be compelled by
the owner to remove the improvements.
This right to remove improvements can
be enforced only against the owner, not
against a purchaser in good faith to
whom a clean title has been issued.
Usufructuary
may
set
off
the
improvements against any damage to
the property

Article 580, Civil Code. The usufructuary may set


off the improvements he may have made on the
property against any damage to the same.

The usufructuary-lessor is liable for


the act of the substitute.
A usufructuary who alienates or
leases his right of usufruct shall
answer for any damage which
the things in usufruct may suffer
through the fault or negligence
of the person who substitutes
him. (Art. 590, Civil Code)

It
is
necessary
that
the
improvements
should
have
increased the value of the property,
and that the damages are imputable
to the usufructuary.
Increase in value and the amount of
damages are set off against each
other.
If the damages exceed the increase
in value, the difference should be
paid by the usufructuary as
indemnity.

If the increase in value exceeds the


damages, and the improvements
are of such nature that they can be
removed without injury to the thing
in usufruct, the settlement of the
difference must be agreed upon by
the parties.
If the improvements cannot be
removed without injury, the excess
in value accrues to the owner.

Registration of improvements to
rd
protect usufructuary against 3 persons

B. As to the Legal Right of Usufruct Itself


1. Right to mortgage right of usufruct
Article 572, Civil Code. The usufructuary may
personally enjoy the thing in usufruct, lease it to
another, or alienate his right of usufruct, even by a
gratuitous title; but all the contracts he may enter
into as such usufructuary shall terminate upon the
expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting
during the agricultural year.

Does not include parental usufruct


because of personal and family
considerations.

2. Right to alienate the usufruct except in


purely personal usufructs or when title
constituting it prohibits the same
Parental usufruct is inalienable

VI. Rights of the Naked Owner


1. At the beginning of the usufruct (see
obligations of usufructuary at the beginning
of the usufruct)
2. During the usufruct
a. Retains title to the thing or property
b. He may alienate the property: he may
not alter the form or substance of the
thing; nor do anything prejudicial to the
usufructuary
Article 581, Civil Code. The owner of property the
usufruct of which is held by another, may alienate it,
but he cannot alter its form or substance, or do
anything thereon which may be prejudicial to the
usufructuary.

c.

He may construct buildings, make


improvements and plantings, provided:
Value of the usufruct is not impaired

186
PROPERTY

Chapter VII. USUFRUCT

CIVIL LAW REVIEWER

Rights of the usufructuary are not


prejudiced

Chapter VII. USUFRUCT

Title constituting usufruct excused the


making of inventory
Title constituting usufruct already makes an
inventory

VII. Obligations of the Usufructuary

Article 583, Civil Code. The usufructuary, before


entering upon the enjoyment of the property, is
obliged:
1. To make, after notice to the owner or his
legitimate representative, an inventory of all the
property, which shall contain an appraisal of the
movables and a description of the condition of
the immovables;
2. To give security, binding himself to fulfill the
obligations imposed upon him in accordance
with this Chapter.

[NOTE: These requirements are NOT conditions


precedent to the commencement of the right of
the usufructuary but merely to the entry upon the
possession and enjoyment of the property.]
To make an inventory
Requisites
a. Immovables must be described
b. Movables appraised because they are
easily lost or deteriorated.
Concurrence of the owner in the making of
the inventory
Expenses for the making of the inventory
are borne by the usufructuary
Inventory may be in a private document,
except when immovables are involved (a
rd
public instrument is prescribed to affect 3
persons)
Failure to make an inventory failure does not
affect the rights of the usufructuary to enjoy
the property and its fruits.
a. A prima facie presumption arises that
the property was received by the
usfructuary in good condition
b. Even if he is already in possession, he
may still be required to make an
inventory.
Exceptions to the requirement of
inventory
a. No one will be injured thereby
b. Title of the usufruct excuses the making
of the inventory
Article 585, Civil Code. The usufructuary, whatever
may be the title of the usufruct, may be excused
from the obligation of making an inventory or of
giving security, when no one will be injured thereby.

To give a bond for the faithful performance of


duties as usufructuary
Any kind of sufficient security is allowed, e.g.
cash, personal bond, mortgage
No bond is required in the following
a. No prejudice would result (Art. 585)
b. Usufruct is reserved by a donor (Art.
584)
Gratitude on the donees part
demands that the donor be excused
from filing the bond
c. Title constituting usufruct excused
usufructuary
d. If usufructuary takes possession under a
caucion juratoria (Art. 587)
The security given may be by a
personal bond, a pledge, or a
mortgage.
It is only by way of exception that a
caucion juratoria is allowed, and
only
under
the
special
circumstances:
o Proper court petition
o Necessity
for
delivery
of
furniture, implements or house
included in the usufruct
o Approval of the court
o Sworn promise
A usufructuary under this can
neither alienate his right nor lease
the property, for that would mean
that he does not need the dwelling
or the implements and furniture.
Article 585, Civil Code. The share of the coowners, in the benefits as well as in the charges,
shall be proportional to their respective interests.
Any stipulation in a contract to the contrary shall be
void.
The portions belonging to the co-owners in the coownership shall be presumed equal, unless the
contrary is proved.
Article 584, Civil Code. The provisions of No. 2 of
the preceding article shall not apply to the donor
who has reserved the usufruct of the property
donated, or to the parents who are usufructuaries of
their children's property, except when the parents
contract a second marriage.
Article 587, Civil Code. If the usufructuary who has
not given security claims, by virtue of a promise
under oath, the delivery of the furniture necessary
for his use, and that he and his family be allowed to

187
PROPERTY

A. At the Beginning of Usufruct or Before


Exercising the Usufruct

CIVIL LAW REVIEWER

Chapter VII. USUFRUCT

The same rule shall be observed with respect to


implements, tools and other movable property
necessary for an industry or vocation in which he is
engaged.
If the owner does not wish that certain articles be
sold because of their artistic worth or because they
have a sentimental value, he may demand their
delivery to him upon his giving security for the
payment of the legal interest on their appraised
value.

Effect of filing a bond

Article 588, Civil Code. After the security has been


given by the usufructuary, he shall have a right to all
the proceeds and benefits from the day on which, in
accordance with the title constituting the usufruct, he
should have commenced to receive them

Retroactivity: upon giving the security,


the usufructuary will be entitled to all the
benefits accruing since the time when
he should have begun to receive them.

Effect of failure to give bond

Article 586, Civil Code. Should the usufructuary fail


to give security in the cases in which he is bound to
give it, the owner may demand that the immovables
be placed under administration, that the movables
be sold, that the public bonds, instruments of credit
payable to order or to bearer be converted into
registered certificates or deposited in a bank or
public institution, and that the capital or sums in
cash and the proceeds of the sale of the movable
property be invested in safe securities.
The interest on the proceeds of the sale of the
movables and that on public securities and bonds,
and the proceeds of the property placed under
administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until
the usufructuary gives security or is excused from so
doing, retain in his possession the property in
usufruct as administrator, subject to the obligation to
deliver to the usufructuary the net proceeds thereof,
after deducting the sums which may be agreed upon
or judicially allowed him for such administration.

Right of the naked owner


o Potestative right; if he does not wish
to exercise it, he may deliver the
property to the usufructuary.
o Delivery, however, does not mean a
renunciation of the right to demand
security.

He shall have the ff. options:


1. Receivership of realty, sale of
movables, deposit of securities,
or investment of money; or
2. Retention of the property as
administrator.
Net products less administration
expenses fixed by agreement or by
the Court, shall be delivered to the
usufructuary.

Right of the usufructuary


o He may alienate his right over the
property which he does not possess
in the same form as he holds it,
without prejudice to the right of the
transferee to give the required
security.

B. During the Usufruct


To take care of the thing like a good father of
a family
Article 589, Civil Code. The usufructuary shall take
care of the things given in usufruct as a good father
of a family.
Article 610, Civil Code. A usufruct is not
extinguished by bad use of the thing in usufruct; but
if the abuse should cause considerable injury to the
owner, the latter may demand that the thing be
delivered to him, binding himself to pay annually to
the usufructuary the net proceeds of the same, after
deducting the expenses and the compensation
which may be allowed him for its administration.

1. When damages are caused to the property


by the fault or negligence of the
usufructuary, the naked owner need not wait
for the termination of the usufruct before
bringing the action to recover proper
indemnity.
2. The bad use of a thing, which causes
considerable injury, entitles the owner to
demand the delivery and administration of
the thing.
3. The exercise of this remedy does NOT
extinguish the usufruct.
To undertake ordinary repairs
Article 592, Civil Code. The usufructuary is obliged
to make the ordinary repairs needed by the thing
given in usufruct.
By ordinary repairs are understood such as are
required by the wear and tear due to the natural use
of the thing and are indispensable for its
preservation. Should the usufructuary fail to make

188
PROPERTY

live in a house included in the usufruct, the court


may grant this petition, after due consideration of the
facts of the case.

CIVIL LAW REVIEWER

1. Ordinary repairs:
a. Deteriorations or defects arise from the
natural use of the thing;
b. Repairs
are
necessary
for
the
preservation of the thing.
2. The usufructuary is bound to pay only for the
repairs made during the existence of the
usufruct.
If the defects existed already at the time
the usufruct began, the obligation to
defray the ordinary repairs falls upon the
owner.
3. If the defects are caused by the ordinary use
of the thing, the usufructuary may exempt
himself from making the repairs by returning
to the owner the fruits received during the
time that the defects took place.
EXCEPT: When the ordinary repairs are
due to defects caused by the fault of the
usufructuary
4. If the usufructuary fails to make the repairs
even after demand, the owner may make
them at the expense of the usufructuary

2. General Rule: Naked owner must make the


extraordinary repairs
Usufructuary obliged to pay legal
interest on the amount while usufruct
lasts
3. If
the
extraordinary
repairs
are
indispensable, and the naked owner fails to
undertake them, the usufructuary may make
such repairs
Requisites:
a. There must be due notification to
the naked owner of the urgency if
it is not urgent, there is no obligation
to give notice.
b. The naked owner failed to make
them
c. The
repair
is
needed
for
preservation
The usufructuary who has made the
extraordinary repairs necessary for
preservation, is entitled to recover from
the owner the increase in value which
the tenement acquired by reason of
such works.
Usufructuary may retain until he is paid.

To notify owner of need to undertake


extraordinary repairs

To pay for annual charges and taxes on the


fruits

Article 593, Civil Code. Extraordinary repairs shall


be at the expense of the owner. The usufructuary is
obliged to notify the owner when the need for such
repairs is urgent.

Article 596, Civil Code. The payment of annual


charges and taxes and of those considered as a lien
on the fruits, shall be at the expense of the
usufructuary for all the time that the usufruct lasts.

Article 594, Civil Code. If the owner should make


the extraordinary repairs, he shall have a right to
demand of the usufructuary the legal interest on the
amount expended for the time that the usufruct lasts.

Article 597, Civil Code. The taxes which, during the


usufruct, may be imposed directly on the capital,
shall be at the expense of the owner.

Should he not make them when they are


indispensable for the preservation of the thing, the
usufructuary may make them; but he shall have a
right to demand of the owner, at the termination of
the usufruct, the increase in value which the
immovable may have acquired by reason of the
repairs.

1. Extraordinary repairs
a. Those
caused
by
exceptional
circumstances, whether or not they are
necessary for the preservation of the
thing;
b. Those caused by the natural use of the
thing, but are not necessary for its
preservation.

If the latter has paid them, the usufructuary shall pay


him the proper interest on the sums which may have
been paid in that character; and, if the said sums
have been advanced by the usufructuary, he shall
recover the amount thereof at the termination of the
usufruct.
Article 612, Civil Code. Upon the termination of the
usufruct, the thing in usufruct shall be delivered to
the owner, without prejudice to the right of retention
pertaining to the usufructuary or his heirs for taxes
and extraordinary expenses which should be
reimbursed. After the delivery has been made, the
security or mortgage shall be cancelled.

It is well settled that a real tax, being a


burden upon the capital, should be paid
by the owner of the land and not by a
usufructuary. There is no merit in the
contention of distinguishing public lands
into alienable and indisposable. All

189
PROPERTY

them after demand by the owner, the latter may


make them at the expense of the usufructuary.

Chapter VII. USUFRUCT

Chapter VII. USUFRUCT

properties owned by the government,


without any distinction, are exempt from
taxation. (Board of Assessment
Appeals of Zamboanga del Sur v.
Samar Mining Company, Inc.)
To notify owner of any act detrimental to
ownership
Article 601, Civil Code. The usufructuary shall be
obliged to notify the owner of any act of a third
person, of which he may have knowledge, that may
be prejudicial to the rights of ownership, and he shall
be liable should he not do so, for damages, as if
they had been caused through his own fault.

To shoulder
usufruct

the

costs

of

litigation

re

Article 602, Civil Code. The expenses, costs and


liabilities in suits brought with regard to the usufruct
shall be borne by the usufructuary.

To answer for fault or negligence of alienee,


lessee or agent of usufructuary
Article 590, Civil Code. A usufructuary who
alienates or leases his right of usufruct shall answer
for any damage which the things in usufruct may
suffer through the fault or negligence of the person
who substitutes him. (498)

The usufructuary is made liable for the


acts of the substitute. While the
substitute answers to the usufructuary,
the usufructuary answers to the naked
owner.

C. At the Time of the Termination of the


Usufruct
To deliver the thing in usufruct to the
owner in the condition in which he has
received it, after undertaking ordinary
repairs
Exception: abnormal usufruct return
the thing of same kind, quantity and
quality; if with appraised value, must
return value appraised

VIII.

Special Cases of Usufruct

interest on bonds or securities payable to bearer,


each payment due shall be considered as the
proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits
accruing from a participation in any industrial or
commercial enterprise, the date of the distribution of
which is not fixed, such benefits shall have the same
character.
In either case they shall be distributed as civil fruits,
and shall be applied in the manner prescribed in the
preceding article.

B. Usufruct of property owned in common


Article 582, Civil Code. The usufructuary of a part
of a thing held in common shall exercise all the
rights pertaining to the owner thereof with respect to
the administration and the collection of fruits or
interest. Should the co-ownership cease by reason
of the division of the thing held in common, the
usufruct of the part allotted to the co-owner shall
belong to the usufructuary.

1. The usufructuary takes the place of the


owner as to:
a. Management;
b. Fruits; and
c. Interest
2. Effect of partition:
a. The right of the usufructuary is not
affected by the division of the property in
usufruct among the co-owners.
b. After partition, the usufruct is transferred
to the part allotted to the co-owner

C. Usufruct constituted on a flock or herd of


livestock
Article 591, Civil Code. If the usufruct be
constituted on a flock or herd of livestock, the
usufructuary shall be obliged to replace with the
young thereof the animals that die each year from
natural causes, or are lost due to the rapacity of
beasts of prey.
If the animals on which the usufruct is constituted
should all perish, without the fault of the
usufructuary, on account of some contagious
disease or any other uncommon event, the
usufructuary shall fulfill his obligation by delivering to
the owner the remains which may have been saved
from the misfortune.

A. Usufruct over a pension or periodical


income

Should the herd or flock perish in part, also by


accident and without the fault of the usufructuary,
the usufruct shall continue on the part saved.

Article 570, Civil Code. Whenever a usufruct is


constituted on the right to receive a rent or periodical
pension, whether in money or in fruits, or in the

Should the usufruct be on sterile animals, it shall be


considered, with respect to its effects, as though
constituted on fungible things.

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1. On sterile stock: same rules on


consumable
property
govern
(i.e.
replacement upon termination)
2. On fruitful stock
a. Must replace ordinary losses of the
stock with the young if:
Some animals die from natural
causes
Some animals are lost due to
rapacity of beasts of prey
b. There is no obligation to replace if:
There is a total loss of animals
because of some unexpected or
unnatural loss (like contagious
disease or any other uncommon
event, provided the usufructuary has
no fault);
If all perish, the usufructuary
should deliver the remains to
the owner.
There is a partial loss
If a part of the stock perishes,
the usufruct subsists on the
remainder.

D. Usufruct over fruit bearing trees and


sprout and woodlands
Article 575, Civil Code. The usufructuary of fruitbearing trees and shrubs may make use of the dead
trunks, and even of those cut off or uprooted by
accident, under the obligation to replace them with
new plants.
Article 576, Civil Code. If the owner should make
the extraordinary repairs, If in consequence of a
calamity or extraordinary event, the trees or shrubs
shall have disappeared in such considerable number
that it would not be possible or it would be too
burdensome to replace them, the usufructuary may
leave the dead, fallen or uprooted trunks at the
disposal of the owner, and demand that the latter
remove them and clear the land.

The usufructuary can:


1. Use dead trunks and those cut off or
uprooted by accident.
2. Make usual cuttings that owner used to do.
3. Cut the trees that are not useful

E. Usufruct on a right of action


Article 578, Civil Code. The usufructuary of an
action to recover real property or a real right, or any
movable property, has the right to bring the action
and to oblige the owner thereof to give him the
authority for this purpose and to furnish him
whatever proof he may have. If in consequence of

Chapter VII. USUFRUCT


the enforcement of the action he acquires the thing
claimed, the usufruct shall be limited to the fruits, the
dominion remaining with the owner.

1. The action may be instituted in the


usufructuarys name. As the owner of the
usufruct, he is properly deemed a proper
party in interest.
2. If the purpose is the recovery of the property
or right, he is still required under 578 to
obtain the naked owners authority.
3. If the purpose is to object to or prevent
disturbances over the property, no special
authority from the naked owner is needed.

191
F. Usufruct on mortgaged property
Article 600, Civil Code. The usufructuary of a
mortgaged immovable shall not be obliged to pay
the debt for the security of which the mortgage was
constituted.
Should the immovable be attached or sold judicially
for the payment of the debt, the owner shall be liable
to the usufructuary for whatever the latter may lose
by reason thereof.

1. When the usufruct is universal and some


objects are mortgaged, apply Art. 598.
2. If the usufructuary mortgaged the usufruct
himself, he is liable to pay his own debt.

G. Usufruct over an entire patrimony


Article 598, Civil Code. If the usufruct be
constituted on the whole of a patrimony, and if at the
time of its constitution the owner has debts, the
provisions of Articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of
the usufructuary to pay such debts
The same rule shall be applied in case the owner is
obliged, at the time the usufruct is constituted, to
make periodical payments, even if there should be
no known capital.

1. Applies when:
a. If the usufruct is a universal one
b. And the naked owner Has debts or is
obliged to make periodical payments
(whether or not there be known capital)
2. General rule: the usufructuary is not liable
for the owners debts.
3. Exceptions:
a. When it is so stipulated; in which case
The usufructuary shall be liable for
the debt specified.

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If there is no specification, he is
liable only for debts incurred by the
owner before the usufruct was
constituted.

b. When the usufruct is constituted in fraud


of creditors
4. In no case shall the usufructuary be
responsible for debts exceeding the benefits
under the usufruct. (except when the
contrary intention appears)
H. Usufruct over deteriorable property
Article 573, Civil Code. Whenever the usufruct
includes things which, without being consumed,
gradually deteriorate through wear and tear, the
usufructuary shall have the right to make use thereof
in accordance with the purpose for which they are
intended, and shall not be obliged to return them at
the termination of the usufruct except in their
condition at that time; but he shall be obliged to
indemnify the owner for any deterioration they may
have suffered by reason of his fraud or negligence.

1. It is sufficient if the usufructuary returns the


things in the condition in which they may
have been found at the time of the expiration
of the usufruct despite ordinary defects
caused by use and deterioration produced
by age and time.
EXCEPT
when caused by the
usufructuarys fraud and negligence.
2. If usufructuary does not return the things
upon the expiration of the usufruct, he
should pay an indemnity equivalent to the
value of the things at the time of such
expiration.

I.

Usufruct over consumable property

Article 574, Civil Code. Whenever the usufruct


includes things which cannot be used without being
consumed, the usufructuary shall have the right to
make use of them under the obligation of paying
their appraised value at the termination of the
usufruct, if they were appraised when delivered. In
case they were not appraised, he shall have the
right to return at the same quantity and quality, or
pay their current price at the time the usufruct
ceases.

Abnormal Usufruct
If the thing is appraised at delivery, the
usufructuary must pay their appraised
value at the termination of the usufruct.
If they were not appraised, he must
return the same kind and quality or pay
the current price at the expiration of the
usufruct.

IX. Extinguishment of Usufruct


Article 603, Civil Code. Usufruct is extinguished:
1. By the death of the usufructuary, unless a
contrary intention clearly appears;
2. By the expiration of the period for which it was
constituted, or by the fulfillment of any
resolutory condition provided in the title creating
the usufruct;
3. By merger of the usufruct and ownership in the
same person;
4. By renunciation of the usufructuary;
5. By the total loss of the thing in usufruct;
6. By the termination of the right of the person
constituting the usufruct;
7. By prescription.

A. Death of usufructuary
Exceptions
1. In multiple usufructs: it ends at the death of
the last survivor
Article 611, Civil Code. A usufruct constituted in
favor of several persons living at the time of its
constitution shall not be extinguished until death of
the last survivor.

a. If simultaneously constituted: all the


usufructuaries must be alive (or at least
conceived) at the time of constitution.
b. If successively constituted:
If by virtue of donation all the
donees-usufructuaries
must
be
living at the time of the donation;
If by will there should only be 2
successive usufructuaries and both
must have been alive at the time of
testators death.
2. If the period is fixed by reference to the life
of another or there is a resolutory condition
Death does not affect the usufruct and
the right is transmitted to the heirs of the
usfructuary until the expiration of the
term or the fulfillment of the condition.
Article 606, Civil Code. A usufruct granted for the
time that may elapse before a third person attains a
certain age, shall subsist for the number of years
specified, even if the third person should die before
the period expires, unless such usufruct has been
expressly granted only in consideration of the
existence of such person.

3. When a contrary intention clearly appears


If the usufructuary dies before the
happening of a resolutory condition, the
usufruct is extinguished.

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Chapter VII. USUFRUCT

Chapter VII. USUFRUCT

st

1 view: usufruct is personal and it


CANNOT be extended beyond the
lifetime of the usufructuary. (Sanchez
Roman and SC)

B. Expiration of period or fulfillment of


resolutory
condition
imposed
on
usufruct by person constituting the
usufruct
1. In favor of juridical persons: period cannot
exceed 50yrs.
Article 605, Civil Code. Usufruct cannot be
constituted in favor of a town, corporation, or
association for more than fifty years. If it has been
constituted, and before the expiration of such period
the town is abandoned, or the corporation or
association is dissolved, the usufruct shall be
extinguished by reason thereof.
rd

2. Time that may elapse before a 3 person


attains a certain age, even if the latter dies
before period expires, unless granted only in
consideration of his existence
Article 606, Civil Code. A usufruct granted for the
time that may elapse before a third person attains a
certain age, shall subsist for the number of years
specified, even if the third person should die before
the period expires, unless such usufruct has been
expressly granted only in consideration of the
existence of such person.

C. Merger of rights of usufruct and naked


ownership in one person
Illustration: H was the usufructuary of
land owned by X. x dies, leaving in his
will, the naked ownership of the land to
H. the usufruct is extinguished because
now H is both the naked owner and the
usufructuary.
D. Renunciation of usufruct
1. Waiver: voluntary surrender of the rights of
the usufructuary, made by him with intent to
surrender them
2. Limitations
a. Must be express: tacit renunciation is
not sufficient
b. Does not need the consent of naked
owner
c. If made in fraud of creditors, waiver may
be rescinded by them through action
under Article 1381 (accion pauliana)
E. Extinction or loss of property
If destroyed property is not insured

Article 607, Civil Code. If the usufruct is constituted


on immovable property of which a building forms
part, and the latter should be destroyed in any
manner whatsoever, the usufructuary shall have a
right to make use of the land and the materials.
The same rule shall be applied if the usufruct is
constituted on a building only and the same should
be destroyed. But in such a case, if the owner
should wish to construct another building, he shall
have a right to occupy the land and to make use of
the materials, being obliged to pay to the
usufructuary, during the continuance of the usufruct,
the interest upon the sum equivalent to the value of
the land and of the materials.
Article 608, Civil Code. If the usufructuary shares
with the owner the insurance of the tenement given
in usufruct, the former shall, in case of loss, continue
in the enjoyment of the new building, should one be
constructed, or shall receive the interest on the
insurance indemnity if the owner does not wish to
rebuild.
Should the usufructuary have refused to contribute
to the insurance, the owner insuring the tenement
alone, the latter shall receive the full amount of the
insurance indemnity in case of loss, saving always
the right granted to the usufructuary in the preceding
article.

See Summary of Arts. 607 and 608


F. Termination
of
right
of
person
constituting the usufruct
Example: usufructs constituted by a
vendee a retro terminate upon
redemption
G. Prescription
Adverse possession against the owner
or the usfructuary.
It is not the non-use which extinguishes
the usufruct by prescription, but the use
rd
by a 3 person.
There can be no prescription as long as
the usfructuary receives the rents from
the lease of the property, or he enjoys
the price of the sale of his right.

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Chapter VII. USUFRUCT

SUMMARY (ARTS. 607 AND 708)


SITUATION

When insurance taken by usufructuary only


depends on value of usufructuarys insurable
interest

X. Conditions Not Affecting Usufruct


A. Expropriation of thing in usufruct
Article 609, Civil Code. Should the thing in usufruct
be expropriated for public use, the owner shall be
obliged either to replace it with another thing of the
same value and of similar conditions, or to pay the
usufructuary the legal interest on the amount of the
indemnity for the whole period of the usufruct. If the
owner chooses the latter alternative, he shall give
security for the payment of the interest.

3 SITUATIONS
1. If naked owner alone was given the
indemnity, he has the option:
a. To replace with equivalent thing
b. Or to pay to the usufructuary legal
interest on the indemnity requires
security given by the naked owner for
the payment of the interest
2. If both the naked owner and the
usufructuary
were
separately
given

Insurance proceeds goes to the usufructuary


No obligation to rebuild
Usufruct continues on the land
Owner has not share in insurance proceeds
indemnity, each owns the indemnity given to
him, the usufruct being totally extinguished.
3. If usufructuary alone was given the
indemnity, he must give it to the naked
owner and compel the latter to return either
the interest or to replace the property. He
may even deduct the interest himself, if the
naked owner fails to object.
B. Bad use of thing in usufruct
Article 610, Civil Code. A usufruct is not
extinguished by bad use of the thing in usufruct; but
if the abuse should cause considerable injury to the
owner, the latter may demand that the thing be
delivered to him, binding himself to pay annually to
the usufructuary the net proceeds of the same, after
deducting the expenses and the compensation
which may be allowed him for its administration.

Does not extinguish the usufruct but


1. Entitles the owner to demand delivery and
administration of the thing.

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PROPERTY

EFFECT
Art. 607
If destroyed property is not insured
If the building forms part of an immovable under
Usufruct continues over the land and the remaining
usufruct
materials
Usufruct continues over the land and materials (plus
If usufruct is on the building only
interests), if owner does not rebuild
If owner rebuilds, usufructuary must allow owner to
occupy the land and to make use of materials; but the
owner must pay interest on the value of both the land
and the materials.
Art. 608
If destroyed property is insured before termination of the usufruct
When insurance premium paid by owner and
If owner rebuilds, usufruct subsists on new building
If owner does not rebuild interest upon insurance
usufructuary (par. 1)
proceeds paid to usufructuary
Owner entitled to insurance money (no interest paid to
When the insurance taken by the naked owner
only because usufructuary refuses to contribute to usufructuary)
If he does not rebuild, usufruct continues over
the premium (par. 2)
remaining land and/or owner may pay interest on
value of both materials and land (607)
If owner rebuilds, usufruct does not continue on new
building, but owner must pay interest on value of land
and old materials

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Chapter VII. USUFRUCT

2. The bad use must cause considerable injury


not to the thing, but to the owner.
C. Destruction if a building over which the
usufruct is constituted (Arts. 607 and
608)

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Chapter VIII. Easement


I.
II.

CONCEPT
ESSENTIAL
FEATURES
OF
EASEMENTS/REAL
III. CLASSIFICATION OF SERVITUDES
IV. GENERAL RULES ON SERVITUDE
V. MODES OF ACQUIRING EASEMENTS
A. BY TITLE
B. BY PRESCRIPTION
VI. RIGHTS AND OBLIGATIONS OF OWNERS
A. OF DOMINANT ESTATE
B. OF SERVIENT ESTATE
VII. MODES
OF
EXTINGUISHMENT
OF
EASEMENTS
VIII. LEGAL EASEMENTS

I.

Concept

Art. 613, Civil Code. An easement or servitude is an


encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different
owner.
The immovable in favor of which the easement is
established is called the dominant estate; that which
is subject thereto, the servient estate. (530)

A real right which burdens a thing with a


prestation of determinate servitudes for the
exclusive enjoyment of one who is NOT an
owner of a tenement
A real right by virtue of which the owner has
to ABSTAIN from doing or ALLOW
somebody else to do something to his
property for the benefit of another

II. Essential Features


1. It is a real right it gives an action in rem
or real action against any possessor of
the servient estate
o Owner of the dominant estate can file a
real action for enforcement of right to an
easement
o Action in rem: an action against the
thing itself, instead of against the
person.
2. It is a right enjoyed over another property
(jus in re aliena) it cannot exist in ones
property (nulli res sua servit)
o When a dominant and servient estate
have the same owner, an easement is
extinguished. Separate ownership is a
prerequisite to an easement.

Chapter VIII. EASEMENT

3. It is a right constituted over an


immovable
by
nature
(land
and
buildings), not over movables. (Article
613)
o Immovable: used in its common and
not in the legal sense, meaning only
property immovable BY NATURE can
have easements.
4. It limits the servient owners right of
ownership for the benefit of the dominant
estate.
o Right of limited use but no right to
possess servient estate.
o There exists a limitation on ownership:
the dominant owner is allowed to enjoy
or use part of the servient estate, or
imposes on the owner a restriction as to
his enjoyment of his own property.
o Being an abnormal limitation of
ownership,
it
cannot
be
presumed.
5. It creates a relation between tenements
o No transfer of ownership, but a
relationship is created, depending on the
easement.
6. Generally, it may consist in the owner of
the dominant estate demanding that the
owner of the servient estate refrain from
doing something (servitus in non
faciendo) or that the latter permit that
something be done over the servient
property (servitus in patendo), but not in
the right to demand that the owner of the
servient right to demand that the owner
of the servient estate do something
(servitus in faciendo) except if such act
is an accessory obligation to a preadial
servitude (obligation propter rem)
o Servient owner merely allows something
to be done to his estate.
o EXCEPTIONS: Praedial servitudes
a. Right to place beams in an adjoining
wall to support a structure
b. Right to use anothers wall to
support a building
7. It is inherent or inseparable from estate
to which they actively or passively
belong
Art. 617, Civil Code. Easements are inseparable
from the estate to which they actively or passively
belong.

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Easements are merely accessory to the


tenements, and a quality thereof. They
cannot exist without tenements.
Easements exist even if they are not
expressly stated or annotated as an
encumbrance of the titles.

8. It is intransmissible it cannot be
alienated separately from the tenement
affected or benefited
o Any alienation of the property covered
carries with it the servitudes affecting
said property. But this affects only the
portion of the tenement with the
easement,
meaning
the
portions
unaffected can be alienated without the
servitude.
9. It is indivisible
Art. 618, Civil Code. Easements are indivisible. If the
servient estate is divided between two or more
persons, the easement is not modified, and each of
them must bear it on the part which corresponds to
him.
If it is the dominant estate that is divided between two
or more persons, each of them may use the easement
in its entirety, without changing the place of its use, or
making it more burdensome in any other way.

10. It has permanence once it attaches,


whether used or not, it continues and
may be used at anytime
o Perpetual: exists as long as property
exists, unless it is extinguished.

Chapter VIII. EASEMENT

b. Voluntary: Created by the will of the


owners of the estate through contract
*** There is no such thing as a JUDICIAL
EASEMENT. The Courts cannot create
easements, they can only declare the existence
of one, if it exists by virtue of the law or will of
the parties.
3. As to its exercise (Article 615)
Art. 615, Civil Code. Easements may be continuous
or discontinuous, apparent or nonapparent.
Continuous easements are those the use of which is
or may be incessant, without the intervention of any
act of man.
Discontinuous easements are those which are used at
intervals and depend upon the acts of man.
Apparent easements are those which are made
known and are continually kept in view by external
signs that reveal the use and enjoyment of the same.

Nonapparent easements are those which show no


external indication of their existence. (532)

This
classification
is
important
in
determining prescription: only continuous
and apparent easements can be created by
prescription
Continuous: Use is or may be incessant,
without the intervention of any man
Discontinuous: Used at intervals, and
dependent upon the acts of man.

III. Classification of Servitudes


1. As to recipient of benefits
a. Real or Praedial: exists for the benefit of
a particular tenement.
b. Personal: exists for the benefit of
persons without a dominant tenement
e.g. usus habitatio (right to reside in a
house) and operae servorum (right to
the labor of slaves) in Roman Law
2. As to cause or origin
a. Legal: created by law, whether for public
use or for the interest of private persons
o Once requisites are satisfied, the
owner of the dominant estate may
ask the Court to declare that an
easement is created.
o Example: Natural drainage of
waters, Abutment of land, Aqueduct,
etc.

4. As indication of its existence


Also important for purposes of prescription
Apparent: Made known and continually
kept in view by external signs that reveal
the use and enjoyment of the same
Non-apparent: No external indication of
their existence
5. By the object or obligation imposed
(Article 616)
a. Positive: Imposes upon the owner of the
servient estate the obligation of allowing
something to be done, or doing it himself
b. Negative: Prohibits the owner of the
servient estate from doing something
which he could lawfully do if the
easement did not exist.
o Prescription starts to run from
service of notarial prohibition)
o e.g. Negative Easement of Light
and View: An opening is made on

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IV. General Rules Relating to Servitudes


1. Nulli res sua servi: No one can have a
servitude over ones own property
2. Servitus in faciendo consistere nequit: A
servitude cannot consist in doing
o Although some easements seem to
impose a positive prestation upon the
owner of the servient estate, in reality,
the primary obligation is still negative.
o Illustration: Under Article 680: the owner
of a tree whose branches extend over to
a neighboring property is required to cut
off the extended branches, but the real
essence of the easement is the
obligation NOT TO ALLOW the
branches of the tree to extend beyond
the land
3. Servitus servitutes esse non potes: There
can be no servitude over another servitude
4. A servitude must be exercised civiliter
in a way least burdensome to the owner of
the land
5. A servitude must have a perpetual cause

V. Modes of Acquiring Easements


A. By Title juridical act which gives rise
to the servitude (e.g. law, donations,
contracts or wills)
Because the road was voluntarily created as a
servitude by the owner, he may close it at his
pleasure. But while the road is open, he may not
capriciously exclude the owner of the tuba saloon
from its use. (North Negros Sugar v. Hidalgo)

1. If easement has been acquired but no proof


of existence of easement available, and
easement is one that cannot be acquired by
prescription
Article 623, Civil Code. The absence of a document
or proof showing the origin of an easement which
cannot be acquired by prescription may be cured by a
deed of recognition by the owner of the servient
estate or by a final judgment.

The defect may be cured by:


a. Deed of recognition by owner of servient
estate: By affidavit or a formal deed
acknowledging the servitude
b. By final judgment: Owner of the
dominant estate must file a case in
Court to have the easement declared by
proving its existence through other
evidence
2. Existence of an apparent sign considered as
title
Article 624, Civil Code. The existence of an apparent
sign of easement between two estates, established or
maintained by the owner of both, shall be considered,
should either of them be alienated, as a title in order
that the easement may continue actively and
passively, unless, at the time the ownership of the two
estates is divided, the contrary should be provided in
the title of conveyance of either of them, or the sign
aforesaid should be removed before the execution of
the deed. This provision shall also apply in case of the
division of a thing owned in common by two or more
persons.

Illustration: The presence of 4 windows


was considered an apparent sign which
created a negative easement of light
and view (altius non tollendi) i.e. not to
build a structure that will cover the
windows. (Amor v. Florentino)

B. By Prescription
Requisites
1. Easement must be continuous and
apparent.
Although the road had been used for
more than 20 years, since an easement
of right of way is a discontinuous
easement, it CANNOT be acquired by
prescription because of the requirement
of
continuous
or
uninterrupted
possession. Since the dominant owner
cannot
be
continually
and
uninterruptedly crossing the servient
estate, but can do so only at intervals,
the easement is necessarily of an
intermittent or discontinuous nature.
(Ronquillo v. Roco)Sasa
2. Easement must have existed for 10 years.
3. NO NEED for good faith or just title.

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PROPERTY

the wall of the dominant estate, and


the easement consists of imposing
upon the servient estate the
obligation to not build anything that
would obstruct the light

Chapter VIII. EASEMENT

VI. Rights and Obligations of Owners of


Dominant and Servient Estates
A. Of Dominant Estate
1. Right of owner of dominant estate
(Limited Jus Utendi: limited by the nature of
the easement itself)
a. To use the easement and exercise all
rights necessary for it
Article 625, Civil Code. Upon the establishment of
an easement, all the rights necessary for its use are
considered granted.
Article 626, Civil Code. The owner of the dominant
estate cannot use the easement except for the benefit
of the immovable originally contemplated. Neither can
he exercise the easement in any other manner than
that previously established.

Owner of the dominant estate is


granted the right to use the principal
easement, and all accessory
servitudes
Example: Easement of drawing
water carries with it the easement of
right of way to the place where
water is drawn.
Limitation: Only for the original
immovable and the original purpose

b. To do at his expense, all necessary


works for the use and preservation of
the easement
Article 627, Civil Code. The owner of the dominant
estate may make, at his own expense, on the servient
state any works necessary for the use and
preservation of the servitude, but without altering it or
rendering it more burdensome.
For this purpose he shall notify the owner of the
servient estate, and shall choose the most convenient
time and manner so as to cause the least
inconvenience to the owner of the servient estate.

Necessity of the works determine


extent of such works.

c. In a right of way, to ask for change in


width of easement sufficient for
needs
Article 651, Civil Code. The width of the easement of
right of way shall be that which is sufficient for the
needs of the dominant estate, and may accordingly be
changed from time to time.

Chapter VIII. EASEMENT


Encarnacion v. Court of Appeals: The Court
granted the modification of the easement stating that
under the law, the needs of the dominant property
ultimately determine the width of the passage. And
these needs may vary from time to time. When
petitioner started out as a plant nursery operator, he
and his family could easily make do with a few
pushcarts to tow the plants to the national highway.
But the business grew and with it the need for the use
of modern means of conveyance or transport.
Petitioner should not be denied a passageway wide
enough to accomodate his jeepney since that is a
reasonable and necessary aspect of the plant nursery
business.

2. Obligations of the owner of dominant


estate
a. To use the easement for benefit of
immovable and in the manner
originally established
o Article 626 (supra): Right to use
the easement for the benefit of the
immovable originally contemplated,
and in the manner originally
established.
o If established for a particular
purpose, the easement cannot be
used for a different one. However, if
established in a general way,
without specific purpose, the
easement can be used for all the
needs of the dominant estate.
b. To notify owner of servient before
making repairs and to make repairs in
a manner least inconvenient to
servient estate
o Article 627(2) (supra): Notify the
owner of the servient estate before
making repairs and choosing the
most convenient time and manner
so as to cause the least
inconvenience to the owner of the
servient estate.
c. Not to alter easement or render it more
burdensome
o Article 627 (supra): Owner of
dominant estate may make repairs
at his expense, but cannot alter the
easement or make it more
burdensome.
o Court allowed Central to use the
right of way to transport the
additional sugar. This did not make
the easement more burdensome nor
did it alter it. What is prohibited is
extending the road or repairing it or
depositing excavations outside the

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CIVIL LAW REVIEWER

area. But the additional use


produced
no
such
effects.
(Valderama v. North Negros)
d. To contribute to expenses of works
necessary for use and preservation
of servitude, if there are several
dominant
estates,
unless
he
renounces his interest
Article 628, Civil Code. Should there be several
dominant estates, the owners of all of them shall be
obliged to contribute to the expenses referred to in the
preceding article, in proportion to the benefits which
each may derive from the work. Any one who does
not wish to contribute may exempt himself by
renouncing the easement for the benefit of the others.
If the owner of the servient estate should make use of
the easement in any manner whatsoever, he shall
also be obliged to contribute to the expenses in the
proportion stated, saving an agreement to the
contrary.

B. Of Servient Estate
1. Rights of owner of servient estate
a. To retain ownership and use of his
property
o The owner of the servient estate
retains the ownership of the portion
on
which
the
easement
is
established, and may use the same
in such a manner as not to affect the
exercise of the easement. (Art. 630,
Civil Code)
o Servient owner must respect the use
of the servitude, but retains
ownership and use of the same, in a
manner not affecting the easement.
b. To change the place and manner of
the use of the easement

Chapter VIII. EASEMENT

REQUISITES if change will cause


prejudice to the dominant owner nor
impair the use of the servitude:
By reason of the place/manner
originally assigned, the use of
such easement has become
VERY INCONVENIENT to the
owner
The easement should prevent
him from making any important
works, repairs or improvements
thereon
Change must be done at his
expense
He offers another place or
manner equally convenient
In such a way that no injury is
caused by the change to the
owner of the dominant estate or
to those who may have a right
to use the easement

c. To use the easement


o May use the easement but must
also contribute proportionately to the
expenses
2. Obligations of the servient estate
a. Not to impair the use of the easement
o The owner of the servient estate
cannot impair, in any manner
whatsoever, the use of the
servitude. (Art. 629(1), Civil Code)
b. To contribute proportionately to
expenses if he uses the easement
o If the owner of the servient estate
should make use of the easement in
any manner whatsoever, he shall
also be obliged to contribute to the
expenses in the proportion stated,
saving an agreement to the contrary
(Art. 628(2), Civil Code)

Article 629, Civil Code. The owner of the servient


estate cannot impair, in any manner whatsoever, the
use of the servitude

VII. Modes
of
Easements

Nevertheless, if by reason of the place originally


assigned, or of the manner established for the use of
the easement, the same should become very
inconvenient to the owner of the servient estate, or
should prevent him from making any important works,
repairs or improvements thereon, it may be changed
at his expense, provided he offers another place or
manner equally convenient and in such a way that no
injury is caused thereby to the owner of the dominant
estate or to those who may have a right to the use of
the easement.

Article 631, Civil Code. Easements are extinguished:


1. By merger in the same person of the ownership
of the dominant and servient estates;
2. By nonuser for ten years; with respect to
discontinuous easements, this period shall be
computed from the day on which they ceased to
be used; and, with respect to continuous
easements, from the day on which an act
contrary to the same took place;
3. When either or both of the estates fall into such
condition that the easement cannot be used; but
it shall revive if the subsequent condition of the
estates or either of them should again permit its

Extinguishment

of

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5.
6.

Modes of Extinguishment
1. Merger: must be absolute, perfect and
definite, not merely temporary
o Absolute: Ownership of the property
must be absolute, thus not applicable to
lease, usufruct, etc.
o Perfect: Merger must not be subject to
a condition
o If the merger is temporary, there is at
most a suspension of the easement, but
no extinguishment.
2. By non-user for 10 years
o Owner of dominant estate does not
exercise right over easement.
o Inaction, not outright renunciation.
o Due to voluntary abstention by the
dominant owner, and not to a fortuitous
event
o Computation of the period
Discontinuous easements: counted
from the day they ceased to be used
Continuous easements: counted
from the day an act adverse to the
exercise of the easement took place
E.g. in an easement of light and
view, the erection of works
obstructing the servitude would
commence
the
period
of
prescription
o Use by a co-owner of the dominant
estate bars prescription with respect to
the others
o Servitudes not yet exercised cannot be
extinguished by non-user
An easement must have first been
used, before it can be extinguished
by inaction.
3. Extinguishment by impossibility of use
o Impossibility referred to must render the
entire easement unusable for all time.
o Impossibility of using the easement due
to the condition of the tenements (e.g.
flooding) only suspends the servitude
until it can be used again.

EXCEPT: If the suspension exceeds 10


years, the easement is deemed
extinguished by non-user

4. Expiration of the term or fulfillment of


resolutory condition
o Applicable only to voluntary easements
5. Renunciation of the owner of
dominant estate
o Must be specific, clear, express
(distinguished from non-user)

the

6. Redemption agreed upon between the


owners
7. Other causes not mentioned in Article
631
o Annulment and rescission of the title
constituting the voluntary easement
o Termination of the right of grantor of the
voluntary easement
o Abandonment of the servient estate
Owner of the servient estate gives
up ownership of the easement (e.g.
the strip of land where the right of
way is constituted) in favor of the
dominant estate.
The easement is extinguished
because ownership is transferred to
the dominant owner, who now owns
both properties.
o Eminent domain
The
governments
power
to
expropriate property for public use,
subject to the payment of just
compensation.
o Special cause for extinction of legal
rights of way; if right of way no longer
necessary
Art. 655, Civil Code
If the right of way granted to a
surrounded estate ceases to be
necessary because its owner
has joined it to another abutting
on a public road, the owner of
the servient estate may demand
that
the
easement
be
extinguished, returning what he
may have received by way of
indemnity. The interest on the
indemnity shall be deemed to be
in payment of rent for the use of
the easement.
The same rule shall be applied
in case a new road is opened
giving access to the isolated
estate.

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PROPERTY

4.

use, unless when the use becomes possible,


sufficient time for prescription has elapsed, in
accordance with the provisions of the preceding
number;
By the expiration of the term or the fulfillment of
the condition, if the easement is temporary or
conditional;
By the renunciation of the owner of the dominant
estate;
By the redemption agreed upon between the
owners of the dominant and servient estates.
(546a)

Chapter VIII. EASEMENT

VIII.

In both cases, the public


highway must substantially meet
the needs of the dominant
estate in order that the
easement may be extinguished.
Right of way ceases to be
necessary:
Owner of the of the dominant
estate has joined to another
abutting on a public road
A new road is opened giving
access to the isolated estate
Requisite: the public highway must
substantially meet the needs of the
dominant estate in order that the
easement may be extinguished
Owner of the servient estate may
demand that the easement be
extinguished.
Owner of the servient estate must
return indemnity he received (value
of the land)

Legal Easements

A. Law governing legal easements


1. For public easements
a. Special laws and regulations relating
thereto (ex: PD 1067 and PD 705)
b. By the provisions of Chapter 2, Title VII,
Book II, NCC
2. For private legal easements
a. By agreement of the interested parties
whenever the law does not prohibit it
rd
and no injury is suffered by a 3 person
b. By the provisions of Chapter 2, title VII,
Book II
B. Private legal easements provided for by
the NCC
THOSE ESTABLISHED FOR THE USE OF
WATER OR EASEMENTS RELATING TO
WATERS

Chapter VIII. EASEMENT

a. REQUISITE: Waters must flow naturally,


without the intervention of man
b. DUTIES:
o DOMINANT
OWNER
(Higher
Estate)
Cannot construct works to
increase the burden e.g. canals
draining other lands into the
lower estate, works which
prevent absorption of water like
pavements which make the
ground more impervious than it
is.
May demand that the servient
owner allow him to make works
necessary
to
remove
obstructions impeding natural
passage
o SERVIENT OWNER (Lower Estate)
Cannot make works which
would impede the servitude e.g.
dams which would block the
natural flow, walls, ditches that
enclose the tenements.
Can construct works that he
may deem necessary to prevent
damage to himself, so long as
he does not cause damage to
inferior tenements
2. Easements on lands along riverbanks
Article 638, Civil Code. The banks of rivers and
streams, even in case they are of private ownership,
are subject throughout their entire length and within a
zone of three meters along their margins, to the
easement of public use in the general interest of
navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable
rivers are, furthermore, subject to the easement of
towpath for the exclusive service of river navigation
and floatage.
If it be necessary for such purpose to occupy lands of
private ownership, the proper indemnity shall first be
paid.

3. Abutment of a dam
1. Natural drainage of waters
Article 637, Civil Code. Lower estates are obliged to
receive the waters which naturally and without the
intervention of man descend from the higher estates,
as well as the stones or earth which they carry with
them.
The owner of the lower estate cannot construct works
which will impede this easement; neither can the
owner of the higher estate make works which will
increase the burden.

Article 639, Civil Code. Whenever for the diversion


or taking of water from a river or brook, or for the use
of any other continuous or discontinuous stream, it
should be necessary to build a dam, and the person
who is to construct it is not the owner of the banks, or
lands which must support it, he may establish the
easement of abutment of a dam, after payment of the
proper indemnity. (554)

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Easement of abutment of a dam may be


established after payment of proper
indemnity
REQUISITES:
1) Construction of dam mecessary for
the use of any other continuous or
discontinuous stream
2) Person who is to construct the dam
is NOT the owner of the banks or
lands which must support the dam

4. Aqueduct
Article 642, Civil Code. Any person who may wish to
use upon his own estate any water of which he can
dispose shall have the right to make it flow through
the intervening estates, with the obligation to
indemnify their owners, as well as the owners of the
lower estates upon which the waters may filter or
descend.
Article 643, Civil Code. One desiring to make use of
the right granted in the preceding article is obliged:
1. To prove that he can dispose of the water and
that it is sufficient for the use for which it is
intended;
2. To show that the proposed right of way is the
most convenient and the least onerous to third
persons;
3. To indemnify the owner of the servient estate in
the manner determined by the laws and
regulations.
Article 644, Civil Code. The easement of aqueduct
for private interest cannot be imposed on buildings,
courtyards, annexes, or outhouses, or on orchards or
gardens already existing.
Article 645, Civil Code. The easement of aqueduct
does not prevent the owner of the servient estate from
closing or fencing it, or from building over the
aqueduct in such manner as not to cause the latter
any damage, or render necessary repairs and
cleanings impossible.
Article 645, Civil Code. For legal purposes, the
easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the
water may not be continuous, or its use depends upon
the needs of the dominant estate, or upon a schedule
of alternate days or hours.

Any person wishing to use upon his own


estate any water can make it flow
through
intervening
estates
with
obligation to indemnify owners of such
estates
Considered as a continuous and
apparent easement, even though the
flow of water may not be continuous

Chapter VIII. EASEMENT

REQUISITES:
1) Dominant owner must prove that:
a) He can dispose of the water
b) Water is sufficient for the use for
which it is intended
c) The proposed right of way is the
most convenient and the least
onerous to third persons
2) Dominant
owner
must
also
indemnify the servient estate in the
manner determined by laws and
regulations
3) Dominant owner cannot impose the
easement of aqueduct on buildings,
courtyards, annexes, outhouses,
orchards or gardens already existing
Existing structures cannot be injured to
establish the easement.
RIGHT OF SERVIENT OWNER:
May fence or build over the
aqueduct in such a manner as not to
cause any damage, or render
impossible any necessary repairs
and cleanings

5. Stop lock and sluice gate


Article 647, Civil Code. One who for the purpose of
irrigating or improving his estate, has to construct a
stop lock or sluice gate in the bed of the stream from
which the water is to be taken, may demand that the
owners of the banks permit its construction, after
payment of damages, including those caused by the
new easement to such owners and to the other
irrigators.

6. Stop lock and sluice gate


1. REQUISITES:
1) Can be imposed only for reasons of
public use in favor of a town or
village
2) After payment of proper indemnity

THE EASEMENT OF RIGHT OF WAY


Article 649, Civil Code. The owner, or any person
who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables
pertaining to other persons and without adequate
outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after
payment of the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the
needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the
value of the land occupied and the amount of the
damage caused to the servient estate.

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2. Who may demand:


(1) The owner of the dominant estate
(2) Any person with the real right to
cultivate or use the immovable e.g.
a usufructuary
BUT a lessee cannot demand such
easement, because the lessor is the one
bound to maintain him in the enjoyment
of the property
3. REQUISITES:
(1) Dominant estate is surrounded by
other immovables owned by other
persons
(2) There must absolutely be no access
to a public highway
(3) Even if there is access, it is difficult
or dangerous to use, or grossly
insufficient
4. Mere inconvenience in the use
of an outlet does not render the
easement a necessity.
5. An adequate outlet is one that
is sufficient for the purpose and
needs of the dominant owner,
and can be established at a
reasonable expense.
6. Does not necessarily have to be
by land an outlet through a
navigable river if suitable to the
needs of the tenement is
sufficient.
(4) Isolation of the immovable is NOT
due to the dominant owners own
acts e.g. if he constructs building to
others obstructing the old way
(5) Payment of indemnity
o If right of way is permanent and
continuous for the needs of the
dominant estate = value of the
land + amount of damage
caused to the servient estate
o If right of way is limited to
necessary
passage
for
cultivation of the estate and for
gathering
crops,
without
permanent way = damage
caused by encumbrance.

7. RULES FOR ESTABLISHING THE


RIGHT OF WAY
1) Must be established at the point
LEAST prejudicial to the servient
estate
Art. 650, Civil Code. The easement of right of way
shall be established at the point least prejudicial to
the servient estate, and, insofar as consistent with
this rule, where the distance from the dominant estate
to a public highway may be the shortest.

a. Insofar as consistent with the


first rule, where the distance
from the dominant estate to a
public highway is shortest
E.g. as between a longer way
without injury to the servient
estates constructions, etc. and
a shorter way that would cause
injury
b. The criterion of least prejudice
to the servient estate must
prevail over the criterion of
shortest distance although this
is
a
matter
of
judicial
appreciation. While shortest
distance may ordinarily imply
least prejudice, it is not always
so as when there are permanent
structures
obstructing
the
shortest distance; while on the
other hand, the longest distance
may be free of obstructions and
the easiest or most convenient
to pass through. (Quimen v.
CA)
c.

The fact that LGV had other


means of egress to the public
highway cannot extinguish the
said easement, being voluntary
and not compulsory. The free
ingress and egress along
Mangyan Road created by the
voluntary agreement between
the parties is thus legally
demandable
with
the
corresponding duty on the
servient estate not to obstruct
the
same.
(La
Vista
Association v. CA)

2) Width of the easement shall be that


which is sufficient for the needs of
the dominant estate

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PROPERTY

In case the right of way is limited to the necessary


passage for the cultivation of the estate surrounded
by others and for the gathering of its crops through
the servient estate without a permanent way, the
indemnity shall consist in the payment of the damage
caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)

Chapter VIII. EASEMENT

a. Easement may be changed


from time to time depending
upon the needs of the dominant
tenement
b. The width of the easement of
right of way shall be that which
is sufficient for the needs of the
dominant estate, and may
accordingly be changed from
time to time. (Art. 651, CC)
3) Necessary repairs for a permanent
right of way shall be made by the
DOMINANT OWNER.
4) A proportionate share of taxes shall
be reimbursed by the dominant
owner to the proprietor of the
servient estate
If the right of way is permanent,
the necessary repairs shall be
made by the owner of the
dominant
estate.
A
proportionate share of the taxes
shall be reimbursed by said
owner to the proprietor of the
servient estate (Art. 654, CC)
5) In cases where the dominant estate
needing the right of way is acquired
by sale, exchange or partition and
the Estate is surrounded by other
estates
owned by the vendor,
exchanger of co-owner
a. Vendor, exchanger or co-owner
shall grant the right of way
WITHOUT INDEMNITY
Granting
the
servitude
without indemnity is a tacit
condition of the sale,
exchange or partition: each
party receives something
b. Donor (simple donation) must
still be indemnified for right of
way
Grantor receives nothing
from the grantee, therefore
no implied condition as to a
right of way is constituted
c. If the land of the grantor is the
one which becomes isolated, he
may demand right of way after
paying an indemnity
Whenever a piece of land
acquired by sale, exchange
or partition, is surrounded
by other estates of the
vendor, exchanger, or coowner, he shall be obliged

Chapter VIII. EASEMENT

to grant a right of way


without indemnity. In case of
a simple donation, the donor
shall be indemnified by the
donee for the establishment
of the right of way. (Art.
652, CC)
8. EXTINGUISHMENT
Extinguished in the following
circumstances because easement
ceases to be necessary:
1) Owner has joined the dominant
estate to another abutting the public
road
2) A new road is opened giving access
to the isolated estate
3) Extinguishment is NOT automatic.
The owner of the servient estate
must ask for such extinguishment
4) Indemnity paid to the servient owner
must be returned:
a. If easement is permanent: value
of the land must be returned
b. If easement is temporary:
nothing to be returned
9. SPECIAL RIGHTS OF WAY
Right of way to carry materials for
the
construction,
repair,
improvement,
alteration
or
beautification of a building through
the estate of another
Right of way to raise on anothers
land scaffolding or other objects
necessary for the work
If it be indispensable for the
construction,
repair,
improvement,
alteration
or
beautification of a building, to
carry materials through the
estate of another, or to raise
therein scaffolding or other
objects necessary for the work,
the owner of such estate shall
be obliged to permit the act,
after receiving payment of the
proper
indemnity
for
the
damage caused him. (Art. 656)
Right of way for the passage of
livestock known as animal path,
animal trail, watering places, resting
places, animal folds (Art. 657)
Easements of the right of way
for the passage of livestock
known as animal path, animal
trail or any other, and those for

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Chapter VIII. EASEMENT

watering places, resting places


and animal folds, shall be
governed by the ordinances and
regulations relating thereto, and,
in the absence thereof, by the
usages and customs of the
place.
Without prejudice to rights
legally acquired, the animal path
shall not exceed in any case the
width of 75 meters, and the
animal trail that of 37 meters
and 50 centimeters.
Whenever it is necessary to
establish
a
compulsory
easement of the right of way or
for a watering place for animals,
the provisions of this Section
and those of Articles 640 and
641 shall be observed. In this
case the width shall not exceed
10 meters

THE EASEMENT OF PARTY WALL


Article 659, Civil Code. The existence of an
easement of party wall is presumed, unless there is a
title, or exterior sign, or proof to the contrary:
1. In dividing walls of adjoining buildings up to the
point of common elevation;
2. In dividing walls of gardens or yards situated in
cities, towns, or in rural communities;
3. In fences, walls and live hedges dividing rural
lands.
PARTY WALL
Built by common
agreement by getting
land from the adjoining
tenements in equal parts
Owner may use the wall
for his own exclusive
benefit

Each owner may insert


beams but only to the
extent of of its
thickness

WALL OWNED IN
COMMON
Owned by adjoining
owners from its
construction or by
subsequent act
Co-owner cannot use the
wall for his own exclusive
benefit, because he
would be impairing the
rights of his co-owners
Each owner can insert
beams in the wall to the
extent of entire thickness

1. DETERMINING THE EXISTENCE OF A


PARTY WALL
a. PRESUMED in the following situations
unless there is a TITLE or EXTERIOR
SIGN or PROOF to the contrary
(i) In dividing walls of adjoining
buildings, up to the point of common
elevation

(ii) In dividing walls of gardens or yards,


situated in cities, towns or rural
communities
(iii) In fences, walls and live hedges
dividing rural lands
(iv) Ditches or drains between two
estates
b. EXTERIOR SIGNS CONTRARY TO
THE EASEMENT OF PARTY WALL
(merely illustrative and not exclusive)
(i) A window or opening in the dividing
wall of buildings
(ii) A lower part of the wall slants or
projects outward on one side of the
wall, while the other side is straight
and plumb on its facement
(iii) Entire wall is built WITHIN the
boundaries of one of the estates
(iv) Dividing wall bears the burden of
beams, floors and roof frame of only
one of the buildings
(v) Dividing wall between courtyards,
garden or tenements is constructed
in such a way that the it sheds water
upon only one of the estates
(vi) Dividing wall has stepping stones
which project from the surface of
one side only, but not on the other
(vii) Lands enclosed by fences or live
hedges adjoin others which are not
enclosed

2. OTHERS NOT ENUMERATED in ARTICLE


659
a. Two adjoining tenements surrounded by
live hedges of different kinds = the
hedge must belong to the owner of the
tenement using the same kind of plants
b. For ditches or drains between two
estates, whenever the earth or dirt
removed to open or clean the ditch is
only on one side thereof
3. CONTRADICTORY SIGNS
a. Contradictory external signs are left to
the determination of the Court, but the
quality instead of the number of signs
must prevail. Also, a presumption arising
from the object or purpose of the wall is
of more force than that arising from a
doubtful external sign.
b. Title, as an express proof of ownership
prevails over an external sign, which
merely gives rise to a presumption

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4. RULES
a. Cost of repairs and construction,
maintenance of fences, hedges, ditches
and drains shall be borne by ALL the
owners of the lands or tenements
EXCEPT: if the defects were occasioned
only by one owner
b. An owner may exempt himself from
contributing to the expenses by
renouncing
his
part-ownership,
UNLESS the party wall supports a
building he owns
Renunciation refers not only to the wall,
but also to the land on which it is
constructed.
c.

Chapter VIII. EASEMENT

E.g. A interest in the wall =


payment for expenses = use as in
one can insert beams in the wall up to
thickness

THE EASEMENT OF LIGHT AND VIEW


1. NATURE OF THE EASEMENT
a. POSITIVE: Opening a window through a
party wall
When a part owner of a party wall opens
a window therein, such act implies the
exercise of the right of ownership by the
use of the entire thickness of the wall =
invasion of the right of the other part
owners / violation of the right to
proportional use of the party wall.

An owner of a building supported by a


party wall who desires to demolish his
building, may also renounce his part
ownership of the wall.

b. NEGATIVE: Formal prohibition upon the


owner of the adjoining land or tenement

BUT he must still bear the cost of all the


repairs and work necessary to prevent
any damage to the party wall.

When a person opens a window on his


own building, he does nothing more than
exercise an act of ownership on his
property.
Does not establish an easement

d. Every owner may increase the height


of the wall, at his own expense and
paying for damages caused by the work.
He must also pay for:
Expenses of maintaining the wall in
the part newly raised, or deepened
foundation
Indemnity for increased expenses
necessary for the preservation of
the wall by reason of the greater
height or depth which has been
given it
Reconstruction expenses in case
the party wall cannot bear the
increased height.
If increased thickness is needed, the
owner shall give the space required
from his own land
Other owners may acquire part
ownership of the increased height,
depth or thickness of the wall, by
paying proportionately the value of
the work at the time of the
acquisition, and of the land for its
increased thickness
e. Part-owners may use the party wall IN
PROPORTION to the right he may have
in the co-ownership, without interfering
with the common and respective uses of
the others.

Coexistent is the right of the owner of


the adjacent property to build on his own
land, even if such structures cover the
window
If the adjacent owner does not build
structures to obstruct the window, such
is considered mere tolerance and NOT a
waiver of the right to build.
An easement is created only when the
owner opens up a window prohibits or
restrains the adjacent owner from doing
anything, which may tend to cut off or
interrupt the light + prescriptive period
2. EASEMENT vs. DIRECT VIEW
o Acquired by the person who opens the
window
o The following structures cannot be built
without
following
the
prescribed
distances
Window, apertures, balconies and
other projections with a direct view
upon or towards an adjoining land
must have a distance of 2 METERS
between the wall and the contiguous
property.

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For structures with a side or oblique


view (at an angle from the boundary
line), there should be a distance of
60 centimeters.
Measured from:
The outer line of the wall if the
openings do not project
The outer line of the openings if
they project
The dividing line between the
two properties in cases of
oblique view
If distances are not complied
with:
Windows
are
considered
unlawful openings
Owner may be ordered by the
Court to close them
Even if the adjoining owner
does
not
object
to
the
construction of such structures
at first, he cannot be held to be
in estoppel, except if 10-year
period of acquisitive prescription
has passed.
Does
not
give
rise
to
prescription
Mere opening of the window in
violation of the distances does
not give rise to the easement of
light and view by prescription

In buildings separated by a public way


or alley, not less than 3 meters wide, the
distances required (2 m, 60 cm) do not
apply.
If an easement is acquired to have direct
views, balconies or belvederes, the
owner of the servient estate must not
build at less than 3 meters from the
boundary line of the two tenements.
The distances may be stipulated by
the parties, but should not be less
than what is prescribed by the law
(2 meters and 60 cm)

3. EXCEPTION TO EASEMENT vs. DIRECT


VIEW
o Owners of a wall (not a party wall)
adjoining a tenement of another can
make openings to admit light without
complying
with
the
distance
requirements SO LONG AS:
Openings are made at the height of
the ceiling joists (horizontal beams)
or immediately under the ceiling
Size: 30 cm square

With iron grating imbedded in the


wall
With a wire screen
But owner of the adjoining estate can
close the opening if:
He acquires part ownership of the
party wall
He constructs a building or raises a
wall on his land, unless an
easement of light has been acquired
If requirements are not complied with,
the owner of the adjoining estate may
compel the closure of the opening.
The action to compel the closing of the
opening may prescribe, if the opening is
permitted without protest.
BUT prescription of the action to
compel the closure of the opening
DOES NOT MEAN that the
servitude of light and view has been
acquired.
Period of acquisitive prescription will
only start to run from the time the
owner asserting the servitude has
forbidden the owner of the adjoining
tenement from doing something he
could lawfully do.
THUS, although the action to
compel the closure might have
prescribed, the owner of the
adjoining estate may still build on
his own land a structure which might
obstruct the view.

THE EASEMENT
BUILDINGS

OF

DRAINAGE

OF

Article 674, Civil Code. The owner of a building shall


be obliged to construct its roof or covering in such
manner that the rain water shall fall on his own land or
on a street or public place, and not on the land of his
neighbor, even though the adjacent land may belong
to two or more persons, one of whom is the owner of
the roof.
Even if it should fall on his own land, the owner shall
be obliged to collect the water in such a way as not to
cause damage to the adjacent land or tenement.
Article 675, Civil Code. The owner of a tenement or
a piece of land, subject to the easement of receiving
water falling from roofs, may build in such manner as
to receive the water upon his own roof or give it
another outlet in accordance with local ordinances or
customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate.
Article 676, Civil Code. Whenever the yard or court
of a house is surrounded by other houses, and it is
not possible to give an outlet through the house itself
to the rain water collected thereon, the establishment

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Chapter VIII. EASEMENT

of an easement of drainage can be demanded, giving


an outlet to the water at the point of the contiguous
lands or tenements where its egress may be easiest,
and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient
estate, after payment of the property indemnity.

1. Regulating the disposal of rain water


a. Owner of a building is obliged to
construct a roof or covering so as to
ensure that the rain water shall fall on
his own land, or on a street or public
place, and NOT on the land of his
neighbor.
b. Owner is also obliged to collect the war
falling on his own land so as not to
cause damage to adjacent tenements
2. Rain water is res nullius, and has no owner.
This article merely imposes a limitation on
the use of ones property, so that rain water
falling thereon may not cause damage.
3. Obligation to collect water (#2) is an
exception to the rule requiring lower
tenements to receive water flowing from
higher tenements.
EASEMENT GIVING AN OUTLET TO THE
WATER
THROUGH
CONTIGUOUS
ESTATES
o Requisites:
a. Yard or court of a house is surrounded
by other houses
b. Water is collected thereon
c. Not possible to give an outlet through
the house itself
d. Establishment of conduit for drainage
must be at a point where egress is
easiest and where it will cause the least
damage to the servient estate
e. After payment of proper indemnity
INTERMEDIATE DISTANCES AND WORKS
FOR CERTAIN CONSTRUCTIONS AND
PLANTINGS
Article 677, Civil Code. No constructions can be built
or plantings made near fortified places or fortresses
without compliance with the conditions required in
special laws, ordinances, and regulations relating
thereto
Article 675, Civil Code. No person shall build any
aqueduct, well, sewer, furnace, forge, chimney,
stable,
depository
of
corrosive
substances,
machinery, or factory which by reason of its nature or
products is dangerous or noxious, without observing
the distances prescribed by the regulations and
customs of the place, and without making the
necessary protective works, subject, in regard to the
manner thereof, to the conditions prescribed by such
regulations. These prohibitions cannot be altered or

Chapter VIII. EASEMENT


renounced by stipulation on the part of the adjoining
proprietors.
In the absence of regulations, such precautions shall
be taken as may be considered necessary, in order to
avoid any damage to the neighboring lands or
tenements.
Article 679, Civil Code. No trees shall be planted
near a tenement or piece of land belonging to another
except at the distance authorized by the ordinances or
customs of the place, and, in the absence thereof, at
a distance of at least two meters from the dividing line
of the estates if tall trees are planted and at a distance
of at least fifty centimeters if shrubs or small trees are
planted.
Every landowner shall have the right to demand that
trees hereafter planted at a shorter distance from his
land or tenement be uprooted.
The provisions of this article also apply to trees which
have grown spontaneously.
Article 680, Civil Code. If the branches of any tree
should extend over a neighboring estate, tenement,
garden or yard, the owner of the latter shall have the
right to demand that they be cut off insofar as they
may spread over his property, and, if it be the roots of
a neighboring tree which should penetrate into the
land of another, the latter may cut them off himself
within his property.
Art. 681, Civil Code. Fruits naturally falling upon
adjacent land belong to the owner of said land.

1. SUMMARY
CONSTRUCTIONS may be built only after
complying with prescribed regulations
(special laws, ordinances, regulations):
a. Constructions or plantings near fortified
places or fortresses
b. Aqueduct, well, sewer, furnace, forge,
chimney, stable, depository of corrosive
substances, machinery, factory (with
dangerous and noxious substances)
Distances must be observed and
protective works necessary for the
conditions must be made
c. Trees planted near a tenement or piece
of land
In the absence of ordinances or
customs of the place:
(1) TALL TREES: At a distance of
at least 2 meters from the
dividing line of the estates
(2) SHRUBS/SMALL TREES: At
least 50 cm from the dividing
line

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If trees are planted at a shorter


distance, landowner may demand
that it be uprooted

o
2. Plantings Encroaching on Adjoining
Estates
a. Branches of any tree extending over a
neighboring estate, garden, etc.
Owner of the adjoining estate has the
right to demand that they be cut off
insofar as they may spread over his
property.
b. Roots of a neighboring tree which
should penetrate into the land of another
o Owner may cut the roots off himself
within his property, even without
notice to the owner of the trees
o Roots, by accession are converted
into the property of the owner of the
land into which they penetrate.
o Also, cutting off the roots will not
give the cutter any benefit, in
contrast to cutting off the branches
of a tree.
o PRESCRIPTION OF ACTION TO
CUT: Period only starts to run after
the owner of the estate has
demanded that the owner of the
trees cut off the branches or roots,
and the latter refuses.
The fact that the owner does not
cut off the trees only constituted
mere tolerance.
c.

Fruits naturally falling upon adjacent


land belong to the owner of the land
o Not by right of occupation but by
principle of accession.
o Owner of the tree retains ownership:
If he picks the fruits from the
branches which invade the
neighboring tenement
If fruits fall on immovables for
public use (not considered as
fruits of these

THE EASEMENT AGAINST NUISANCES


Article 682, Civil Code. Every building or piece of
land is subject to the easement which prohibits the
proprietor or possessor from committing nuisance
through noise, jarring, offensive odor, smoke, heat,
dust, water, glare and other causes.

Material impairment depends on the


nature and purpose of the tenement e.g.
dwelling house vs. factory
Degree of annoyance to be tolerated
depends on what is usual for a specific
locality.

Article 683, Civil Code. Subject to zoning, health,


police and other laws and regulations, factories and
shops may be maintained provided the least possible
annoyance is caused to the neighborhood.

EASEMENT OF LATERAL AND SUBJACENT


SUPPORT
Article 684, Civil Code. No proprietor shall make
such excavations upon his land as to deprive any
adjacent land or building of sufficient lateral or
subjacent support.

1. An owner cannot make such excavations as


to deprive any adjacent land or building of
sufficient lateral or subjacent support
2. LATERAL SUPPORT
a. Limitation on the right to excavate on his
own land: one cannot excavate so close
to an adjoining estate as to deprive it of
natural support and cause it to crumble.
b. Not necessary that the excavation is
made on the lot immediately adjoining. It
is sufficient if the excavation results in a
slide in the plaintiffs property
c. An owner who makes excavations can
either:
Observe a sufficient distance to
permit the necessary lateral support
of adjoining land
Support the latter artificially through
walls, etc.
3. SUBJACENT SUPPORT
a. Exists when there is severance of
ownership (surface owner vs. substrata
owner) as in mines and tunnels.
b. The owners of the rights below the
surface are burdened with the easement
to refrain from removing such sufficient
support which will protect the surface
from subsidence or sinking, and keep it
securely at its original level.
4. REMEDIES FOR VIOLATION
a. Action for Damages against the one who
made the excavation, whether owner or
contractor, etc.

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Chapter VIII. EASEMENT

b. Injunction
Restraining
the
owner
from
excavating so as to deprive the land
of natural support
Will prohibit merely any excavation
which shall cause the plaintiffs land
to fall away due to withdrawal of
support

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PROPERTY

5. OTHER RULES:
a. Stipulations or testamentary provisions
allowing excavations that cause danger
to adjacent land or building is VOID.
b. Also applicable to future constructions
c. Any proprietor intending to make any
excavation shall notify all owners of
adjacent lands.
Notice must sufficiently inform the
adjoining owner of the nature and
extent of the proposed excavation,
so as to enable the owner to take
the necessary precautions to protect
his property.
No formal notice is necessary if the
adjoining owner already has actual
knowledge of such excavation.
But giving notice does not absolve
the excavator from the duty to
exercise reasonable care to avoid
injury to neighbors.

Chapter IX. NUISANCE

Chapter IX. Nuisance


I.
II.
III.
IV.

DEFINITION
CLASSES
LIABILITY IN CASE OF NUISANCE
REGULATION OF NUISANCE

I.

Definition

Article 694, Civil Code. A nuisance is any act,


omission, establishment, business, condition of
property, or anything else which:
1. Injures or endangers the health or safety of
others; or
2. Annoys or offends the senses; or
3. Shocks, defies or disregards decency or morality;
or
4. Obstructs or interferes with the free passage of
any public highway or street, or any body of
water; or
5. Hinders or impairs the use of property.

To constitute a nuisance there must be an


arbitrary or abusive use of property or disregard
of commonly accepted standards set by society.
Nuisance v. Trespass
Nuisance
Use of ones own
property in such a
manner as to cause injury
to the property or right or
interest of another, and
generally results from the
commission of an act
beyond the limits of the
property affected.
Injury is consequential

Trespass

Direct infringement of
anothers right of
property.

Injury is immediate

Nuisance v. Negligence
Nuisance
Whether it was
unreasonable for the
defendant to act as he
did in view of the
threatened danger or
harm to one in plaintiffs
position.
Liability for the resulting
injury to others
regardless of the degree
of care or skill exercised
to avoid such injury.
Principles ordinarily apply
where the cause of action
is for continuing harm
caused by continuing or
recurrent acts which
cause discomfort or
annoyance to plaintiff in
the use of his property.

Negligence
Whether the defendants
use of his property was
unreasonable as to
plaintiff, without regard to
foreseeability of injury.

Examples as enumerated under CC


1) Injury to health Any business,
although itself lawful, which necessarily
impregnates large volumes of the
atmosphere
with
disagreeable,
unwholesome or offensive matter, may
become a nuisance to those occupying
adjacent property, in case it is so near,
and the atmosphere is contaminated to
such an extent as substantially to impair
the comfort and enjoyment of adjacent
occupants.
2) Dangerous to safety manufacture,
storing or keeping of explosives in large
quantities in the vicinity of dwelling
houses or excavation adjoining a public
highway
3) Annoyance
to
senses

slaughterhouses and cowhide storage


vats from which emanated vile and
offensive odors; noise of animals kept in
residential neighborhood
o To be judged by the effect they are
calculated
to
produce
upon
ordinary people under normal
circumstances, not by their effect
upon
the
oversensitive,
the
fastidious or the sick, nor, on the
other hand, by their effect upon
those
who
are
abnormally
indifferent to such things, or who by
long experience have learned to
endure
them
without
inconvenience.
o Inconvenience must be materially
interfering
with
the
ordinary
comfort, physically, of human
existence.
4) Shocking to decency bawdy or
disorderly house; building used for either
lewdness
or
of
assignation
or
prostitution
5) Hinders or impairs the use of
property illegal construction on
anothers land

II. Classes
Liability is based on a
want of proper care

Principles ordinarily apply


where the cause of action
is for harm resulting from
one act which created an
unreasonable risk of
injury.

Art. 695, Civil Code. Nuisance is either public or


private. A public nuisance affects a community or
neighborhood or any considerable number of persons,
although the extent of the annoyance, danger or
damage upon individuals may be unequal. A private
nuisance is one that is not included in the foregoing
definition.

1. According to Nature (old classification)


a. Nuisance per se or at law

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Chapter IX. NUISANCE

An act, occupation or structure


which is a nuisance at all times and
under
any
circumstances,
regardless
of
location
or
surroundings.

3.

b. Nuisance per accidens or in fact


o One that becomes a nuisance by
reason of circumstances and
surroundings.
o It is not a nuisance by its nature but
it may become so by reason of the
locality, surrounding, or the manner
in which it is conducted, managed,
etc.
Per se
The wrong is established
by proof of the mere act.
It becomes a nuisance
as a matter of law.

Per accidens

a. Public
o The doing of or the failure to do
something that injuriously affects the
safety, health or morals of the
public.
o It causes hurt, inconvenience or
injury to the public, generally, or to
such part of the public as
necessarily comes in contact with it.
b. Private
o One which violates only private
rights and produces damages to but
one or a few persons.
Public
Affects the public at large
Need not affect the whole
community or hurt and
injure all the public. It is
sufficient if it affects the
surrounding community
generally or if the injury is
occasioned to such part
of the public as come in
contact with it.

c.

Mixed

A swimming pool or water tank is not an attractive


nuisance, for while it is attractive, it cannot be a
nuisance, being merely an imitation of the work of
nature. (Hidalgo Enterprises v. Balandan)

Proof of the act and its


consequences.

2. According to Scope of Injurious Effects


o Test: not the number of persons
annoyed
but
the
possibility
of
annoyance to the public by the invasion
of its rights the fact that it is in a public
place and annoying to all who come
within its sphere.

Doctrine of Attractive Nuisance


o One who maintains on his premises
dangerous
instrumentalities
or
appliances of a character likely to attract
children in play, and who fails to
exercise ordinary care to prevent
children from playing therewith or
resorting thereto, is liable to a child of
tender years who is injured thereby,
even if the child is technically a
trespasser in the premises.
o Basis of liability The attractiveness is
an invitation to children. Safeguards to
prevent danger must therefore be set
up.

III. Liability in Case of Nuisance


o

Who are liable


Art. 696, Civil Code. Every successive
owner or possessor of property who fails or
refuses to abate a nuisance in that property
started by a former owner or possessor is
liable therefor in the same manner as the
one who created it.

Private
Affects the individual or a
limited
number
of
individuals only

Liability of creator of nuisance: He who


creates a nuisance is liable for the resulting
damages and his liability continues as long
as the nuisance continues.
There must be a breach of some duty on
the part of the person sought to be held
liable for damages resulting from a
nuisance before an action will lie against
him.
No one is to be held liable for a
nuisance which he cannot himself
physically abate without legal action
against another for that purpose.
Where
several
persons,
acting
independently, cause damage by acts
which constitute a nuisance, each is
liable for the damage which he has
caused or for his proportionate share of
the entire damage.
Liability of transferees: The grantee of
land upon which there exists a nuisance
created by his predecessors in title is NOT
responsible therefore merely because he
becomes the owner of the premises, or
merely because he permits it to remain.
He shall be liable if he knowingly
continues the nuisance. Generally, he is

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Right to recover damages


Art. 697, Civil Code. The abatement of a
nuisance does not preclude the right of any
person injured to recover damages for its
past existence.

Abatement and damages are


cumulative remedies.

No Prescription
Art. 698, Civil Code. Lapse of time cannot
legalize any nuisance, whether public or
private.

The action to abate a public or private


nuisance is NOT extinguished by
prescription. (Art. 1143[2])

IV. Regulation of Nuisances

a. Criminal prosecution: Only for a public


nuisance, not for a private one.
Public nuisances are offenses
against the State, and since early
times it has been held that one who
is responsible for this may be
proceeded against criminally by
indictment.
Question of intent is immaterial.
Persons liable person is liable for
the consequence which his act
produced
b. Civil action:
1) Judgment with abatement
defendant convicted of maintain a
nuisance may also be ordered to
abate the nuisance
2) Injunction where the injury
occasioned
by
an
indictable
nuisance is pressing or imminent, so
that the public safety is menaced or
public rights are obstructed or
interfered with, and the special
circumstances are such that the
ordinary process of the court is not
sufficiently prompt or effective to
prevent the injury or obstruction, the
remedy can be injunction provided
the right is clear and the wrong has
not been acquiesced in by the
plaintiff.
c.

Extrajudicial abatement: This right is


based upon necessity which must be
present to justify its exercise.
It must be reasonably and efficiently
exercised, means employed must
not be unduly oppressive on
individuals, and no more injury must
be done to the property or rights of
individuals than is necessary to
accomplish the abatement.
No right to compensation if property
taken or destroyed is a nuisance.

2. Who can file an action for abatement


A.

PUBLIC NUISANCE

1. Remedies to abate a nuisance

Article 700, Civil Code. The district health officer


shall take care that one or all of the remedies against
a public nuisance are availed of.

Article 699, Civil Code. The remedies against a


public nuisance are:
1. A prosecution under the Penal Code or any local
ordinance: or
2. A civil action; or
2. (3) Abatement, without judicial proceedings.

Article 701, Civil Code. If a civil action is brought by


reason of the maintenance of a public nuisance, such
action shall be commenced by the city or municipal
mayor.
Article 702, Civil Code. The district health officer
shall determine whether or not abatement, without
judicial proceedings, is the best remedy against a

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PROPERTY

not liable for continuing it in its original


form, unless he has been notified of its
existence and requested to remove it, or
has actual knowledge that it is a
nuisance and injurious to the rights of
others.
Nature of liability: All persons who
participate in the creation or maintenance of
a nuisance are jointly and severally liable for
the injury done.
If 2 or more persons who create or
maintain the nuisance act entirely
independent of one another, and without
any community of interest, concert of
action, or common design, each is liable
only so far as his acts contribute to the
injury.
For joint liability, there must be some
joint or concurrent act or community of
action or duty, or the several wrongful
acts done at several times must have
concurred in their effects as one single
act to produce the injury complained of.

Chapter IX. NUISANCE

CIVIL LAW REVIEWER

Article 703, Civil Code. A private person may file an


action on account of a public nuisance, if it is specially
injurious to himself.

a. General rule: Individual has no right of


action against a public nuisance. The
abatement
proceedings
must
be
instituted in the name of the State or its
representatives.
b. Except: An individual who has suffered
some special damage different from that
sustained by the general public, may
maintain a suit in equity for an injunction
to abate it, or an action for damages
which he has sustained.
Action becomes a tort if an
individual has suffered particular
harm, in which case the nuisance is
treated as a private nuisance with
respect to such person.
3. Requisites of the right of a private
individual to abate a public nuisance
Article 704, Civil Code. Any private person may
abate a public nuisance which is specially injurious to
him by removing, or if necessary, by destroying the
thing which constitutes the same, without committing
a breach of the peace, or doing unnecessary injury.
But it is necessary:
1. That demand be first made upon the owner or
possessor of the property to abate the nuisance;
2. That such demand has been rejected;
3. That the abatement be approved by the district
health officer and executed with the assistance of
the local police; and
4. That the value of the destruction does not exceed
three thousand pesos.

a. The right must be exercised only in


cases of urgent or extreme necessity.
The thing alleged to be a nuisance must
be existing at the time that it was alleged
to be a nuisance.
b. Summary abatement must be resorted
to within a reasonable time after
knowledge of the nuisance is acquired
or should have been acquired by the
person entitled to abate.
c. Person who has the right to abate must
give a reasonable notice of his intention
to do so, and allow thereafter a
reasonable time to enable the other to
abate the nuisance himself.
d. Means employed must reasonable and
for any unnecessary damage or force,
the actor will be liable. Right to abate is
not greater than the necessity of the
case and is limited to the removal of

only so much of the objectionable thing


as actually causes the nuisance.
e. Abatement must be approved by the
district health officer.
f. Property must not be destroyed unless it
is absolutely necessary to do so.
g. Right must always be exercised with the
assistance of local police so as not to
disturb the public peace.
B. PRIVATE NUISANCE

Article 705, Civil Code. The remedies against a


private nuisance are:
1. A civil action; or
2. Abatement, without judicial proceedings.
Article 706, Civil Code. Any person injured by a
private nuisance may abate it by removing, or if
necessary, by destroying the thing which constitutes
the nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is
indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private person be
followed.
Article 707, Civil Code. A private person or a public
official extrajudicially abating a nuisance shall be
liable for damages:
1. If he causes unnecessary injury; or
2. If an alleged nuisance is later declared by the
courts to be not a real nuisance.

a. Action for damages: Recovery is


limited to the damage occasioned up to
the time of the commencement of the
action.
If nuisance continues to the time of
trial, then damages shall be
computed from that time.
If nuisance is permanent, a single
action is enough to cover both past
and
prospective
damages.
If
temporary or recurrent, each
repetition of it gives rise to a new
cause of action and successive
actions will lie.
b. Defenses to action:
1) Public necessity private interest
must yield to the public good;
creation of nuisance amounts to
taking of property therefore just
compensation must be made.
2) Estoppel one who voluntarily
places himself in a situation
whereby he suffers an injury will not
be heard to say that his damage is
due to a nuisance maintained by
another.

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PROPERTY

public nuisance.

Chapter IX. NUISANCE

CIVIL LAW REVIEWER

Chapter IX. NUISANCE

3) Non-existence of the nuisance


4) Impossibility of abatement
Liability of person abating: Whoever
abates an alleged nuisance and thus
destroys or injures private property, or
interferes with private rights, whether a
public officer or private person, unless
he acts under the order of a court having
jurisdiction, does so at his peril.

d. Remedies of property owner: A


person whose property is seized or
destroyed as a nuisance may resort to
the courts to determine w/n it was in fact
a nuisance.
1) Action for replevin
2) Enjoin the sale or destruction of the
property
3) Action for the proceeds of its sale
and damages if it has been sold
4) Enjoin
private
parties
from
proceeding to abate a supposed
nuisance

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PROPERTY

c.

CIVIL LAW REVIEWER

Chapter
X.
Ownership

Chapter X. MODES of ACQUIRING OWNERSHIP

Modes

of

Acquiring

II. Mode
A. ORIGINAL

I.

MODE V. TITLE
MODES
A. ORIGINAL MODES
1. OCCUPATION
2. INTELLECTUAL CREATION
B. DERIVATIVE MODES
1. LAW
2. DONATION
3. SUCCESSION
4. ACQUISITIVE PRESCRIPTION
5. TRADITION

Mode v. Title

Article 712, Civil Code. Ownership is acquired by


occupation and by intellectual creation.
Ownership and other real rights over property are
acquired and transmitted by law, by donation, by
testate and intestate succession, and in consequence
of certain contracts, by tradition.

Original modes of acquisition are those which


produce
the
acquisition
of
ownership
independent of any preexisting right of another
person, hence, free from burdens or
encumbrances.
1. OCCUPATION
Article 713,
nature which
that are the
treasure and
occupation.

Requisites:
o Corporeal personal property
o Property
susceptible
of
appropriation not res communes
o Seizure with intent to appropriate
o Res nullius (no owner) or res
derelict (abandoned property)
o Observance
of
conditions
prescribed by law

Kinds:
o Of Animals
Wild or feral animals seizure
(hunting/fishing) in open season
by means NOT prohibited
Tamed/domesticated animals
general rule: belong to the
tamer but upon recovering
freedom are susceptible to
occupation UNLESS claimed
within 20days from seizure by
another (