Acts or Contracts Contrary to Law Q: What are the requisites of Implied repeal:
A:
Q: What are the exceptions to the rule that Acts or 1) Laws cover the same subject matter
Contracts which are contrary to mandatory or 2) Latter is repugnant to the earlier
prohibitory laws are void?
A: The exceptions are: When the law: Interpretation of Laws
1. Expressly validates or authorizes its validity
2. Makes the invalidity depend on the Will of the 1. Q: Explain the concept of Stare decisis (Art. 8)
injured party - Adherence to judicial precedents
3. Punishes it Criminally but validates the act - Once a question of law has been
4. Invalidates the act but recognizes the Legal examined and decided, it should be deemed
effects as flowing from the invalid act. settled and closed to further argument.
Unless otherwise provided in both cases • Must be proved as a fact, according to the rules
on evidence.
Express Repeal: Law expressly provides for such
Implied Repeal: takes place when the provisions of 4. Q: What is the presumption in case there is
the subsequent law are incompatible or inconsistent Doubt in the interpretation or application of laws?
with those of the previous law
BOOK ONE
PERSONS AND FAMILY RELATIONS
PERSONS
CIVIL PERSONALITY
Article 37, NCC JURIDICAL CAPACITY CAPACITY TO ACT (CTA)
DEFINITION Fitness to be the subject of legal relations Power to do acts with legal effect
Q: What are the restrictions on CTA: Art. 38 - Personality begins at Birth; not at conception
A: Minority, Insanity, Imbecility, XPN: Presumptive / Temporary
State of being a Deaf-mute, Prodigality, Civil - The law considers the conceived child as
Interdiction born
PROVIDED:
Q: What are the Circumstances that Modify/Limit - Only for purposes Beneficial / Favorable to
CTA: Art. 39 it; and
A: Age, Insanity, Imbecility, Deaf-Mutism, Penalty, - It is born later in accordance with law.
Prodigality, Family Relations, Alienage, Absence,
Insolvency, Trusteeship. Q: Explain the meaning of the clause:
”Born later in accordance with law”,
A: A fetus with an intra-uterine life of:
NATURAL PERSONS (Art. 40-41, NCC) >less than 7 months: Must survive for at
least 24 hours after its COMPLETE delivery from
Q: How is PERSONALITY acquired? the maternal womb
A: GR: Actual / Permanent Personality
Q: Explain the SURVIVORSHIP RULE in Civil Law. • Please refer to notes on Political Law
A: If in doubt as to who died first between 2 or more
persons CALLED TO SUCCEED EACH OTHER,
THE FAMILY CODE
- Burden of Proof: Whoever alleges the death of (Executive Order No. 209)
one prior to the other shall prove the same; August 3, 1988
Divorce
Q: What Are the other Requirements set forth by
law before one can contract marriage? Q: Suppose in a valid mixed marriage (marriage
A: If either or both parties are: between a citizen of a foreign country and a citizen
>18 & above but below 21: Parental Consent of the Philippines, the foreign spouse obtained a
>21 & above but below 25: Parental Advice divorce decree abroad and was capacitated to
>18 & above but below 25: Marriage Counseling remarry.
May the Filipino spouse remarry despite the
Q: What is the effect if a party who is required by fact that divorce is not valid in the Philippines?
law to obtain Parental Consent failed to do so? A: Yes, the Filipino spouse is capacitated to
A: Marriage is VOIDABLE remarry just as the alien spouse is capacitated,
Divorce validly obtained abroad by the alien spouse
Q: What is the effect if a party who is required by capacitating him/her to remarry will likewise allow
law to obtain Parental Advice or undergo Marriage the Filipino spouse to remarry. This is the rule laid
Counseling failed to do so? down in article 26 (2) of the Family Code.
A: Marriage is VALID
BUT issuance of marriage license is Q: Will your answer be the same if it was a valid
SUSPENDED for 3 months from the completion marriage between Filipinos?
of publication of the application for such. A: It depends. What is material in this case is the
citizenship of the spouse who obtained a divorce
Q: What is the status of the marriage if the parties decree abroad at the time the decree was obtained
get married within said 3-month period? and not their citizenship at the time the marriage
A: Marriage shall be VOID for lack of marriage was celebrated.
license. If the Filipino spouse was naturalized as a citizen of
BUT if they were able to obtain a marriage a foreign country before he/she obtains a divorce
license within said period, the marriage shall be decree and was thereafter capacitated to remarry,
valid but there may be civil and/or criminal liability. the Filipino spouse will be capacitated to remarry.
However, if the Filipino spouse remained to be a
Marriages Solemnized Abroad citizen of the Philippines when he/she obtained a
divorce decree abroad, such decree will not be
Q: What is the rule on marriages solemnized recognized in the Philippines even if that spouse is
abroad? subsequently naturalized as a citizen of a foreign
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country. This is so because at the time the spouse
obtained the divorce decree, he/she was still a * It should be noted however that the foreign
citizen of the Philippines and being naturalized spouse must be capacitated to remarry before the
afterwards does not cure this defect. Filipino spouse may also be capacitated to remarry.
> Art. 35: SUBSEQUENT MARRIAGES VOID Q: What is the status of children born of marriages
under Article 53 of FC under Art. 36?
*Art. 53: A person whose marriage has been A: Those conceived or born before the decree of
annulled may remarry only after compliance with nullity of marriage are considered
the requirements provided for in Art. 52, LEGITIMATE (Art. 54)
OTHERWISE, the subsequent marriage shall be
null and void.
> Art. 37: Incestuous Marriages
*Art. 52 requires that the ff. be recorded in the (Whether legitimate or illegitimate)
appropriate civil registry or registries of property:
a) Judgment of annulment or absolute nullity; • Between ascendants and descendants of
b) Partition and Distribution of the properties of any degree
the spouses; and • Between brothers and sisters whether of the
c) Delivery of the children’s presumptive full or half blood
legitimes.
*Art. 50 (2): Final judgment shall provide for the ff: > Art. 38: Those VOID for reasons of PUBLIC
1) Liquidation, partition and distribution of the POLICY: Marriages between:
properties of the spouses;
2) Custody and support of the common • Collateral blood relatives (Legit or Illegit) up
children; and to the 4th civil degree
3) Delivery of their presumptive legitimes, • Step-parents & step-children
Unless such matters had already been adjudicated • Parents-in-law & children-in-law
in previous judicial proceedings.
• adopting parent & the adopted child
• surviving spouse of the adopting parent &
the adopted child
>Art. 36: PSYCHOLOGICAL INCAPACITY
Q: What is Psychological Incapacity? • surviving spouse of the adopted child & the
A: No exact definition but is restricted to: adopter
• adopted child & legitimate child of the
Psychological incapacity of one of the contracting adopter
parties to comply with the essential marital • adopted children of the same adopter
obligations, existing at the time of the celebration • parties where one, with the intention to marry
of the marriage. the other, kills the latter’s spouse, or his/her
spouse
Q: What are the requisites for Psychological
Incapacity to be a ground for declaration of nullity of *List is exclusive
marriage?
A: (GEM)
Q: What are the circumstances constituting FRAUD *NOTE: Any other misrepresentation as to
under Article 45(3)? character, rank, fortune or chastity is NOT a ground
A: (NPSD) for annulment.
1. Non-disclosure of Conviction by Final Judgment
of crime involving Moral Turpitude *all must exist at the time of the celebration of the
2. Concealment by the wife of the fact that at the marriage
time of marriage, she was Pregnant by a man
other than her husband
3. Concealment of Sexually Transmitted Disease, Q: When may IMPOTENCE be a ground for
regardless of nature, existing at the time of annulment of marriage?
marriage A: Under Art 45(5) Impotence may be a ground for
4. Concealment of Drug addiction, habitual annulment of marriage provided the ff. requisites
alcoholism, homosexuality and lesbianism concur: (CPUII)
2. Terminable Bigamous Marriages (Art. 41) Q: What are the EFFECTS of DECREE of Legal
Separation?
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A: (Art. 63-64) In both cases: Separation of property and any
1. Spouses entitled to live separately, forfeiture of share already effected SUBSISTS,
*marriage bond NOT severed UNLESS spouses agree to revive former property
2. ACP/CPG shall be dissolved / liquidated regime
*BUT offending spouse shall have no right
to any share of the net profits earned by the Q: What are the EFFECTS of RECONCILIATION?
AC/CP which shall be forfeited in accd. w/ art. (Art. 66)
43(2). As to the Decree:
3. Custody of minor children is awarded to the >During the pendency of the case:
innocent spouse (subject to Art 213, FC) A: LS proceedings terminated (in whatever stage)
4. Offending spouse is disqualified to inherit
from innocent spouse by intestate succession >After the issuance of the decree:
5. Provisions in will of innocent spouse which A: Final decree of LS to be set aside and the
favors offending spouse shall be revoked by order
operation of law
6. Innocent spouse may revoke donations he/she As to the Property Regime:
made in favor of offending spouse
> Prescriptive period: A: GR: With respect to separation of properties,
5 years from finality of decree of LS the same shall subsist.
7. Innocent spouse may revoke designation of XPN: The parties, however, can come into
offending spouse as beneficiary in any insurance an agreement to revive their previous regime.
policy (even when stipulated as irrevocable) Their agreement must be under oath and must
contain a list of the properties desired to be
Q: What is the purpose of the Mandatory Cooling– returned to the community or conjugal property
off-period? and those which will remain separate, a list of
A: The requirement set forth by law that an action creditors and their addresses.
for Legal Separation shall in no case shall be tried
before 6 months has elapsed since the filing of the As to capacity to succeed:
petition, is to enable the contending spouses to A: The family code does not provide for the
settle differences. In other words, it is for possible revival of revoked provisions in a will originally
reconciliation. made in favor of the offending party as a result of
the LS. This absence gives the innocent spouse
Q: May the heirs of the deceased spouse continue the right to choose whether the offending spouse
the suit (petition for decree of Legal separation) if will be reinstituted.
the death of the spouse takes place during the
pendency of the suit? As to the forfeited shares:
A: No. An action for legal separation is purely A: Those given to the children cannot be returned
personal, therefore, the death of one party to the since the spouses are no longer the owners of
action causes the death of the action itself – action such. But those given to the innocent spouse may
personalis moritur cum persona. Setting the decree be returned.
aside shall be recorded in the proper civil registries.
Q: What are the different Property regimes? Explain 2. Conjugal Partnership of Gains
briefly. ~ Everything Earned during marriage belongs to
A: 1. Absolute Community of Property CP.
~ Almost everything is owned in common - XPT those: (OGRE)
-XPT: 1. Brought to the marriage as his/her own;
1. Property acquired during the marriage by 2. Acquired during marriage by gratuitous title;
gratuitous title and its fruits 3. Acquired by right of redemption, barter,
XPT: if expressly provided by the donor, exchange with property belonging to either
testator or grantor that they shall form spouse; OR
part of the community property 4. Purchased with exclusive money of either
2. Property for personal and exclusive use of spouse.
either spouse
XPT: jewelry (forms part of the ACP) 3. Separation of Property
~ may be Partial or Absolute;
Q: What consists of the community property? Q: What if the wife failed to bring the action (as
A: GR: The community property consists of all the recourse) within 5 years?
property owned by the spouses at the time of A: This failure makes the husband’s decision final.
the celebration of the marriage or acquired
thereafter. Q: In cases of alienation, disposition or
encumbrance of the community property, and one
XPNS: spouse is incapacitated or unable to participate in
1. Property acquired during the marriage by the administration of the community property, is the
gratuitous title and its fruits approval of one spouse enough for said alienation,
Except if expressly provided by the donor, disposition or encumbrance to be valid?
testator or grantor that they shall form part of the A: No. Both spouses must approve any dispositions
community property or encumbrances and consent of the other spouse
2. Property for personal and exclusive use of regarding the disposition must be in writing,
either spouse otherwise, the matter should be brought to court
Except jewelry and the court will give the authority, if proper.
3. Property acquired before the marriage by Such consent or court approval must be
one with legitimate descendants by former obtained BEFORE the alienation, etc. otherwise,
marriage and its fruits and income such will be void and obtaining such consent or
4. Those excluded by the marriage settlement court approval afterwards will not validate the act. A
void act cannot be ratified.
Q: What about property acquired during the Q: What if one spouse acts without the consent of
marriage? the other or without court approval?
A: Property acquired during the marriage is A: If one spouse acts without the consent of the
presumed to belong to the community other or without court approval, such disposition or
Unless proven otherwise by strong and encumbrance is VOID.
convincing evidence. (Art 93) However, the transaction shall be construed as a
continuing offer on the part of the consenting
ADMINSTRATION OF COMMUNITY PROPERTY spouse and the 3rd person which may be perfected
as a binding contract upon acceptance by the
Q: To whom does the right to administer the spouse or court approval.
community property belong to?
A: GR: It belongs to both spouses JOINTLY. Q: When may one spouse resort to obtaining court
XPN: If one spouse is Incapacitated or approval for any alienation, encumbrance or
otherwise Unable to participate in the administration disposition of community property?
of the common properties: A: In absence of the written consent of the other
spouse.
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(10) Expenses of litigation between the spouses
Q: Will losses in gambling be charged upon the UNLESS the suit is found to be groundless.
community property?
A: No. Art 95 specifically states that “whatever Q: What if the community property is insufficient to
may be Lost during the marriage in any game of cover the foregoing liabilities?
chance, betting, sweepstakes, or any other kind of A: The spouses shall be solidarily liable for the
gambling, whether permitted or prohibited by law, unpaid balance with their separate propertied.
shall be borne by the loser and shall not be XPT those falling under paragraph (9)
charged to the community”
However, any Winnings therefrom shall form Q: May one of the spouses dispose by will a
part of the community property. specific community property?
A: NO. Art 97 allows only the disposition by
Q: What are the CHARGES UPON THE ACP: way of a will by either spouse, his or her
A: (1) The support of the spouses, their common INTEREST in the community property. It is only
children, and legitimate children of either spouse; the Share of the spouse NOT a specific
property.
(2) All debts and obligations contracted during the
marriage by: Q: What is the rule on donating a community
a) the Designated administrator-spouse property by a spouse?
for the benefit of the community, or A: Art 98 provides that Generally, a spouse
b) by Both spouses, or cannot donate any community property without
c) by One spouse the consent of the other Except, Moderate
WITH the consent of the other; donations for charity or on occasion of family
(3) Debts and obligations contracted by either rejoicing or distress.
spouse WITHOUT the consent of the other
to the extent that the family may have been Q: If a spouse Abandons without Just Cause
benefited; his family or Fails to comply with Obligations to
(4) All taxes, liens, charges and expenses, including the family, what are the Remedies of the
major or minor repairs, upon the community Spouse Present?
property; A: Petition the court for:
(5) All taxes and expenses for mere preservation 1) Receivership;
made during marriage upon the separate property 2) Judicial Separation of Property;
of either spouse used by the family; 3) Authority to be the Sole Administrator of
(6) Expenses to enable either spouse to the absolute community
commence or complete a professional or vocational
course, or other activity for self-improvement; Q: What are the EFFECTS of SEPARATION IN
(7) Ante nuptial debts of either spouse insofar as FACT:
they have redounded to the benefit of the family; A:
(8) The value of what is donated or promised by 1) ACP is not affected;
both spouses in favor of their common legitimate 2) Spouse who Leaves the conjugal home or
children for the exclusive purpose of commencing Refuses to live therein, without just cause, shall
or completing a professional or vocational course or not have the right to be supported;
other activity for self-improvement; 3) When Consent of one spouse to any
(9) Payment, in case of absence or insufficiency transaction of the other is required by law,
of the exclusive property of the debtor-spouse, of: Judicial Authorization shall be obtained in a
summary proceeding.
a) Ante nuptial debts of either spouse 4) In case of insufficiency of community
which did NOT redound to the benefit of the property, separate property of both spouses
family; shall be solidarily liable for the support of the
b) the support of illegitimate children of family. Spouse present shall, upon proper
either spouse; petition in a summary proceeding, be given
c) liabilities incurred by either spouse by judicial authority to Administer or Encumber any
reason of a crime or quasi-delict, specific separate property of the other spouse
*the payment of which shall be considered as and use the fruits or proceeds thereof to satisfy
advances to be deducted from the share of the the latter’s share.
debtor-spouse upon liquidation of the community;
and Q: How is the ACP terminatied?
ACP CPG
Each spouse retains his/her property before the
All the properties owned by the spouses at the marriage and only the fruits and income of such
time of marriage become community property properties become part of the conjugal properties
during the marriage
Upon dissolution and liquidation of the Upon dissolution of the partnership, the separate
community prop what is divided equally between property of the spouses are returned and only the
the spouses or their heirs is the net remainder of net profits of the partnership are divided equally
the properties of the ACP between the spouses of their heirs
Property acquired while living Contributions to & respective shares over properties
together presumed obtained by their owned in common
Presumption
joint efforts, work or industry and are presumed equal
owned by them in equal shares
A. Classification of Filiation
Children by Artificial Insemination 3. If the child was born after the death of the
husband
Q: When is a CHILD CONCEIVED BY ARTIFICIAL
INSEMINATION considered legitimate? Q: What are the Grounds to Impugn Legitimacy
A: A child conceived by said method is considered of the Child?
legitimate if the following conditions are present: 1. Physical impossibility for the husband to
have sexual intercourse with his wife within
1. The artificial insemination is made on the the first 120 days of the 300 days which
wife, not on another woman immediately preceded the birth of the child
2. The artificial insemination on the wife is because of:
done with the sperm of the husband or of a a. Physical incapacity of the husband to
donor, or both the husband and a donor have sexual intercourse with his wife
3. The artificial insemination has been b. The fact that the husband and wife
authorized or ratified by the spouse on a were living separately in such a way
written instrument executed and signed by that sexual intercourse was not
them before the birth of the child and possible, or
4. The written instrument is recorded in the c. Serious illness of the husband which
civil registry together with the birth absolutely prevented intercourse
certificate of the child
2. Proved that for biological or other scientific
Q: What is the child’s filiation if the marriage is reasons, the child could not have been that
terminated and the mother contracts another of the husband, except in the case of
marriage within 300 days after the termination of children conceived through artificial
the former marriage? insemination
A: In absence of proof to the contrary, these rules
shall apply: In case of children conceived through artificial
insemination, the written authorization or
-If the child is born BEFORE 180 days after the ratification of either parent was obtained
solemnization of the subsequent marriage: through mistake, fraud, violence, intimidation
~ It is considered to have been conceived during or undue influence
the FORMER marriage,
~Provided it be born within 300 days after the
termination of the former marriage. Q: In impugning the legitimacy of the child, what are
the Prescriptive Periods?
-If the child is born AFTER 180 days following the A: 1. One year, from the knowledge of birth or
celebration of the subsequent marriage: recording in the civil registry, if husband or heirs
~ It is considered to have been conceived during lives in the same city/municipality
such SUBSEQUENT marriage 2. Two years, if residing in different
~ Even though it be born within 300 days after the city/municipality but within the Philippines
termination of the former marriage. 3. Three years, if abroad
Note: Amount of support shall be in proportion to Q: What is the Rule on Parental Authority in case
the means of the giver and to the need of the Of Legal Separation of Parents:
recipient A: >Parental authority is exercised by the parent
designated by the court
Q: Who are Obliged to Support Each Other? >GR: No child below 7 years of age shall be
1. Spouses separated from the mother
2. Legitimate ascendants & descendants >XPN: When the court finds compelling reasons to
3. Parents and their legitimate children, and the consider otherwise
legitimate and illegitimate children of the latter >The paramount consideration in matters of
4. Parents and their illegitimate children, and the custody of a child is the welfare and well-being of
legitimate and illegitimate children of the latter the child
5. Legitimate brothers and sisters whether full or
half-blood Q: To whom is Substitute Parental Authority
vested?
A: (GOC)
Q: What are the Distinctions Between Substitute *Parents may exercise authority over their
Parental Authority and Special Parental Authority? children’s property
A:
Substitute Q: What are the kinds of Properties of a Minor?
Special Parental Authority A: a. ADVENTITIOUS
Parental Authority
It is exercised in It is exercised concurrently with Characteristics:
case of death, the parental authority of the 1. Earned or acquired by the child through his
absence, or parents and work or industry by onerous or gratuitous title
unsuitability of rests on the theory that while 2. Owned by the child
parents. the child is in the custody of 3. Child is also the usufructuary, but the child’s
Hence, it is not the person exercising use of the property shall be secondary to all
exercised by the special parental authority, collective daily needs of the family
parents of parental the parents temporarily 4. Administered by the parents
authority over the relinquish parental authority
minor children. over the child to the latter b. PROSFECTITIOUS
Characteristics:
Q: When is Termination of Parental Authority: 1. Property given by the parents to the child
A: for the latter to administer
>Permanent? (DED) 2. Owned by the parents
1. Death of parents 3. Parents are usufructuary
2. Emancipation of the child 4. Property administered by the child
3. Death of child
REPUBLIC ACT 9255
>Temporary? (AGAA-IF) “AN ACT ALLOWING ILLEGITIMATE CHILDREN
1. Adoption of the child TO USE THE SURNAME OF THEIR FATHER”
2. Appointment of general guardian (February 24, 2004)
3. Judicial declaration of Abandonment
4. Judicial declaration of Absence Section 1 – Article v176 of Executive Order No.
5. Incapacity of parent exercising PA 209, otherwise known as the Family Code of the
6. Final judgment divesting parents of PA Philippines, is hereby amended to read as follows:
Q: What are the Grounds for Suspension of PA? “Article 176 – Illegitimate children shall use the
A: (CHAIN B) surname and shall be under the parental authority
1. Gives corrupting orders, counsel and example of their mother, and shall be entitled to support in
2. Treats child with excessive Harshness and conformity with this Code. However, illegitimate
cruelty children may use the surname of their father if their
3. Subjects/allows child be subjected to Acts of filiation has been expressly recognized by their
lasciviousness father through the record of birth appearing in the
4. Conviction of crime with penalty of Civil civil register, or when an admission in public
interdiction document or private handwritten instrument is made
by the father.
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>Provided, the father has the right to institute an illegitimate child shall consist of one-half of the
action before the regular courts to prove non- legitime of a legimate child”
filiation during his lifetime. The legitime of each
ADOPTION LAWS
(N.B. A.M. # 02-6-02, effective Aug. 22, 2002 - as to the procedural aspect)
Consumability depends upon the nature of the Q: What are the kinds of ownership?
thing itself. A: (FNSC)
A thing may be fungible or non-fungible 1. Full ownership – includes all the rights of an
according to the intention of the parties. owner; Naked ownership + Usufruct
2. Naked ownership – ownership where the
Q: Is the human body real or personal property? rights to the use and to the fruits have been
A: Neither, since it cannot be appropriated. denied; Full ownership - Usufruct
However, the human body or its parts, may, under
Q: May a co-owner opt not to contribute? How? Q: Whose shares may a co-owner redeem?
A: GR: Yes, by renouncing his undivided interest A: The shares of all or any other co-owner if sold to
equal to the amount of contribution. a third person.
XPN: If the waiver or renunciation is prejudicial
to the co-ownership. (Article 488) Q: What if the price of the alienation is grossly
excessive?
Q: Is the failure or refusal of a co-owner to A: The redemptioner shall pay only a reasonable
contribute pro rata to his share of expenses one.
tantamount to renunciation?
A: No. Q: What if 2 or more co-owners want to redeem?
A: They may do so in proportion to the shares they
Q: What is the nature of said renunciation? may respectively have.
A: It is in effect a dacion en pago since there is a
change of the object of the obligation (i.e. sum of Q: When does an action to request partition
money to interest in the co-ownership). Hence, the prescribe?
consent of the other co-owners is necessary. A: It does not, as long as the co-ownership exists.
Q: Can the renunciation be made without the Q: What are the XPNS to the right to demand
consent of any unpaid creditor? partition?
A: No, for it is in effect a novation by substitution. A: (CLIPUT)
a. When the co-owners agree to keep the
Q: Distinguish acts of administration from acts of property undivided for a period of time but
alteration. not > 10 yrs
A: b. Prohibited by the transferor (donor/testator)
ACTS OF ACTS OF ALTERATION but not > 20 yrs
ADMINISTRATION c. Prohibited by law by reason of their origin or
1. Refer to the 1. Acts, by virtue of w/c, a co- juridical nature- ex. party walls and fences
enjoyment, owner, in opposition to the d. When a co-owner possessed the property
exploitation, expressed or tacit agreement
as an exclusive owner for a period sufficient
alteration of the of all the co-owners, and in
thing w/c do not violation of their will,
to acquire it through prescription
affect its substance, changes the thing from the e. When partition would render the thing
form, or purpose state in which the others unserviceable or the thing is essentially
believe it would remain, or indivisible
withdraws it from the use to
which they believe it is Q: Does the law favor co-ownership?
intended A: No, it is not conducive to the development of the
2. Transitory in 2. Permanent community property esp. when it involves real
character property.
3. Do not affect the 3. Relates to the substance or
substance or form essence of the thing
Q: Is there a permanent renunciation of the right to
4. In relation to the 4. Requires the consent of ALL
right of a co-owner, co-owners ask for partition?
they require the A: No, such is VOID.
consent of the
majority Q: Can prescription run in favor of or against a co-
5. Can be exercised 5. Must be exercised by the co- owner?
by the co-owners owners themselves A: GR: No, so long as he expressly or impliedly
through others recognizes the co-ownership because the
possession of one co-owner is not adverse to the
Q: Is alteration limited to physical or material others.
changes to the thing? XPN: If the co-owner repudiates the co-
A: No, but includes any act of ownership. ownership, in w/c case, prescription begins to run
from the time of repudiation.
Q: What is the reason for requiring the consent of ex. of acts of repudiation- filing of an action to
the other co-owners? quiet title or recovery of ownership
A: Because alteration is an act of ownership and
not of mere administration. Q: Should creditors and/or assignees be notified of
the proposed partition?
Q: What is the liability of a co-owner who makes an A: The law does not expressly provide that a
alteration without the express or implied consent of notification be given but:
the others? 1. If notice is given- it is their duty to appear to
A: He shall: (LDP) concur /oppose
1. lose what he has spent; 2. If no notice- creditors and/or assignees may
2. be obliged to demolish the improvements still question the partition made
done; and
Q: When is possession not considered lost? Q: Is the usufructuary bound to preserve the form
A: (WER) and substance of the thing in usufruct?
1. When for the time being he may not know A: GR: Yes.
its whereabouts (movable) XPN: In abnormal usufruct, whereby the law or
2. When agent encumbered property without the will of the parties may allow the modification of
express authority – except when ratified the substance of the thing.
3. When possession may still be recovered:
(PULMON) Q: Differentiate usufruct from lease.
a. Unlawfully deprived or lost A: (CRONEC)
Usufruct Lease
Nature of Real Personal
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
14
2007 Team Bar-Ops Civil Law Committee
right a. To alienate (or mortgage) the right of usufruct
Creator of Owner or his agent May not be the (Art 572) xpt parental usufruct (Arts 225, 226
right owner, as in the FC)
case of a sub-lessor b. In a usufruct to recover property/real right, to
or a usufructuary
bring the action and to oblige the owner thereof
Origin By law,contract,will of By contract
to give him the proper authority and the
testator or by
prescription necessary proof (Article 578)
Extent of All fruits, uses and Only those uses c. In a usufruct of part of a common property, to
enjoyment benefits stipulated exercise all the rights pertaining to the co-owner
Cause A passive owner who An active owner with respect to the administration and collection
allows the usufructuary who makes the of fruits or interests.
to enjoy the object of lessee enjoy
usufruct Q: What are the rights of the usufructuary as to
Repairs and Usufructuary pays for Lessee is not advances and damages?
taxes ordinary repairs and obliged to pay for A: (ITD)
taxes on the fruits repairs/taxes
a. To be reimbursed for indispensable
extraordinary repairs made by him in an
Q: What are the kinds of usufruct? amount equal to the increase in value
A: (Article 564) (ENES) (Art 594)
1. As to extent of object: b. To be reimbursed for taxes on the capital
a. total – constituted on the whole thing advanced by him
b. partial – constituted only on a part (Art 597, par. 2)
2. As to number of beneficiaries: c. To be indemnified for damages caused
a. simple – 1 usufructuary by him by the naked owner (Art 581)
b. multiple – several usufructuaries w/c may
be: Q: What are the rights of a usufructuary to pending
1. simultaneous – at the same time natural and industrial fruits?
2. successive – one after another A:
3. As to effectivity or extinguishment: 1. Fruits growing at beginning of usufruct -
a. Pure – no term/condition belong to the usufructuary who is not bound
b. W/ a term – there is a period w/c may be to refund to the owner the expenses of
either suspensive or resolutory cultivation and production
c. Conditional – subject to a condition w/c 2. Fruits growing up to the termination of
may be either suspensive or resolutory usufruct - belong to the owner but he is
4. .As to subject matter: bound to reimburse the usufructuary of the
a. over things – involves tangible property ordinary cultivation expenses (Article 545)
b. over rights – involves intangible property out of the fruits received (Article 443)
Q: Can the right to receive support be the subject Q: What if the expenses exceed the proceeds of
matter of usufruct? the growing fruits?
A: No, because the rights must not be strictly A: The owner has no obligation to reimburse the
personal or intransmissible to be subject of difference. (Article 567)
usufruct.
Q: May the usufructuary lease the thing in usufruct
Q: What are the rights of the usufructuary as to the even w/o the owner’s consent
thing and its fruits? A: Yes, but not being the owner, he cannot
A: (RISERI) alienate, pledge or mortgage the thing itself.
a. To receive the fruits of the property in
usufruct and half of the hidden treasure he Q: May the usufructuary alienate, pledge, or
accidentally finds on the property (Arts 566, mortgage the right of usufruct, even by gratuitous
438) title?
b. To enjoy any increase which the thing in A: Yes, he, being the owner of the right itself.
usufruct may acquire through accession (Art (Article 572)
571)
c. To personally enjoy the thing or lease it to Q: What is the usufructuary liable for?
another (Arts 572-577) A: For the damages suffered by reason of his fraud
d. To make on the property such improvements or negligence.
or expenses he may deem proper and to
remove the improvements provided no damage Q: What is he not liable for?
is caused to the property (Art 579) A: a. For deterioration due to wear and tear
e. To set-off the improvements he may have b. For deterioration due to a fortuitous event
made on the property against any damage to
the same (Art 580) Q: What are the rights and obligations of the
f. To retain the thing until he is reimbursed for usufructuary with respect to consumable things?
advances for extraordinary expenses and taxes A: The usufructuary shall have the right to make
on the capital (Art 612) use of the consumable thing. At the termination of
the usufruct, he must:
Q: What are the rights of the usufructuary as to the 1. pay its appraised value
usufruct itself? 2. if no appraisal:
A: (ARC) a. return the same quantity and quality;or
Q: What are the obligations of the usufructuary? Q: What are ordinary repairs?
A: A: Such as are required by the wear and tear due
Before During At termination to the natural use of the thing and are indispensable
usufruct for its preservation. (Article 592)
Make an Take care of Return the thing
inventory property in usufruct to the Q: What are extraordinary repairs?
naked owner
A:
unless there is a
right of retention 1) Those required by the wear and tear due to
Give security Replace the Pay legal interest the natural use of the thing but not
young of animals for the time that indispensable for its preservation.
that die or are the usufruct lasts 2) Those required by the deterioration of or
lost when the damage to the thing caused by exceptional
usufruct is circumstances and are indispensable for its
constituted on preservation.
flock or herd of
livestock Q: Who pays for extraordinary repairs?
Make ordinary Indemnify the
A: Depends on the kinds of extraordinary repairs:
repairs naked owner for
any losses due to (Article 594)
his negligence or 1. If made by the owner- he can make them but
of his transferees to his expense and he shall have the right to
Notify the owner demand of the usufructuary legal interest on
of urgent extra- the amount expended during the duration of
ordinary repairs the usufruct.
Permit works & 2. If made by the usufructuary- GR: the
improvements by usufructuary may make them but he is not
the naked owner entitled to indemnity because they are not
not prejudicial to
needed for the preservation of the thing.
the usufruct
Pay annual taxes XPN: He shall have the right to demand the
and charges on payment of the increase in value at the
the fruits termination of the usufruct provided that:
Pay interest on
taxes on capital 1. He must notify the owner of the urgency of
paid by the the repairs
naked owner 2.The owner failed to make repairs
Pay debts when notwithstanding such notification
usufruct is 3.The repair is necessary for the preservation
constituted on
of the property.
the whole
patrimony
Secure the Q: Does the usufructuary have the right of retention
naked even after the termination of the usufruct?
owner’s/court's A: Yes, until he is reimbursed for the increase in
approval to value of the property caused by extraordinary
collect credits in repairs for preservation.
certain cases
Notify the owner Q: How is the increase in value determined?
of any prejudicial A: It is the difference between the value of the
act committed by
property before the repairs were made and the
3rd persons
Pay for court
value after.
expenses and
costs Q: What is caucion juratoria?
A: The usufructuary, being unable to file the
required bond or security, files a verified petition in
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
16
2007 Team Bar-Ops Civil Law Committee
the proper court asking for the delivery of the house 5. Indivisible- not affected by the division
and furniture necessary for himself and his family of the estate between two or more persons
without any bond or security. (Article 587) (Article 618)
6. A right limited by the Needs of the
Q: How is usufruct extinguished? dominant owner or estate, without
A: (PTTDERM) possession.
1. Acquisitive prescription- use by a third 7. It Cannot consist in the doing of an act
person and not the non-use by the unless the act is accessory in relation to a
usufructuary real easement.
2. Termination of right of the person 8. A Limitation on the servient owner’s
constituting the usufruct rights of ownership.
3. Total loss of the thing- if the loss is only
partial, the usufruct continues with the Q: What do you mean by “easement established
remaining part. only on immovable?”
4. Death of the usufructuary- unless a A: The term “immovable” must be understood in its
contrary intention appears. Reason: common and not in its legal sense.
Usufruct is constituted essentially as a
lifetime benefit for the usufructuary or in Q: Distinguish easement from usufruct.
consideration of his person. A:
5. Expiration of the period or fulfillment of the Easement Usufruct
resolutory condition On real property Real or personal
6. Renunciation by the usufructuary- it Limited to a particular or Includes all uses and fruits
partakes of a condonation or donation, it specific use of the servient
must comply with the forms of donation. estate
Non-possessing right over an Involves a right of possession
7. Merger of the usufruct and ownership in the
immovable in an immovable or movable
same person who becomes the absolute Not extinguished by death of Extinguished by death of
owner thereof. (Article 1275) dominant owner usufructuary
Real right whether or not Real right whether or not
Q: What if the naked owner died? registered registered
A: It does not terminate the usufruct. His rights are Transmissible Transmissible
transmitted to the heirs.
Q: Distinguish easement from lease.
Q: Is renunciation an assignment of right? A:
A: No, it is really an abandonment by the Easement Lease
usufructuary of his right and does not require the Real right whether or not Real right only when
consent of the naked owner but it is subject to the registered (whether real or registered OR on real
rights of creditors. personal) property, duration exceeds 1
yr
EASEMENTS OR SERVITUDES Only on real properties Real or personal
There is limited right to the Limited right to both
use of real property of another possession and use of
Q: What is an easement or servitude? but w/o right of possession another’s property
A: It is an encumbrance imposed upon an
immovable for the benefit of another immovable
Q: What are the classifications of easements?
belonging to a different owner or for the benefit of a
A:
community or one or more persons to whom the
1. As to recipient of the benefit:
encumbered estate does not belong by virtue of
a) Real – easement is in favor of another
which the owner is obliged to abstain from doing or
immovable.
to permit a certain thing to be done on his estate.
b) Personal – easement is in favor of a
(Articles 613, 614)
community, or of one or more persons to
whom the encumbered estate does not
Q: Differentiate easement from servitude.
belong.
A:
2. As to source:
Easement Servitude
a. Legal
An English law term Used in civil law countries
Real Real or personal
b. Voluntary
The right enjoyed Burden imposed upon another c. Mixed
Q: What are characteristics of easement? a. Legal – established by law for public use or
A: (RAINCLEI) for the interest of private persons.
1. A Real right but will affect third persons 1.Public Legal Easements – for
only when registered public or communal use.
2. Enjoyed over Another immovable never 2.Private Legal Easements – for the
on one’s own property interest of private persons or for
3. Involves 2 neighboring Estates: the private use.
dominant estate to which the right belongs
and the servient estate upon which an i. Waters
obligation rests. (BWARDN)
4. Inseparable from the estate to which it 1. natural drainage (Article 637)
is attached - cannot be alienated 2. drainage of buildings (Article 674)
independently of the estate (Article 617)
Q: How is the easement of aqueduct considered? Q: Distinguish party wall from co-ownership.
A: For legal purpose, it is considered continuous A:
and apparent even though the flow of water may Party Wall Co-ownerhsip
not be continuous or its use depends upon the Shares of co-owners cannot Can be divided physically; a
needs of the dominant estate or upon a schedule of be physically segregated but co-owner cannot point to any
alternate days or hours. (Article 646) they can be physically definite portion of the
identified property belonging to him
No such limitation None of the co-owners may
ii. Right of Way
use the community property
for his exclusive benefit
- right to demand that the owner of an estate because he would be invading
surrounded by other estates be allowed to pass the rights of the others
thru the neighboring estates after payment of Any owner may free himself Partial renunciation is allowed
proper indemnity. from contributing to the cost
of repairs and construction of
Q: What are the requisites? a party wall by renouncing
A: ALL his rights
1. Claimant must be an owner of enclosed
immovable or with real right Q: Who spends for the cost of repairs and
2. There must be no adequate outlet to a public construction of party walls?
highway A: Part-owners shall contribute in proportion to their
3. The right of way must be absolutely necessary respective interests.
not mere convenience
4. The isolation must not be due to the claimant’s Q: May an owner refuse to contribute?
own act A: GR: Yes, any owner may free himself by
5. The easement must be established at the point renouncing his rights in the party wall.
least prejudicial to the servient estate XPN: When the party wall actually supports his
6. There must be payment of proper indemnity building. (Article 662)
Q: What does “least prejudicial” mean? Q: What if the owner of a building supported by a
A: The shortest way and the one which will cause party wall desires to demolish the building?
the least damage. A: He may also renounce his part-ownership of the
wall. He shall bear expenses of repairs and work
Q: What if these 2 circumstances do not concur? necessary to prevent any damage which demolition
A: The way which will cause the least damage may cause to the party wall. (Article 663)
should be used even if it will not be the shortest.
Q: May an owner increase the height of a party
Q: How much is the proper indemnity? wall?
A: If the passage is continuous and permanent – A: Yes, provided:
the indemnity consists of the value of the land 1. He must do so at his own
occupied plus the amount of damages caused to expense
the servient estate. 2. He must pay for any damage caused even
If temporary – indemnity consists in the if it is temporary
payment of the damage caused 3. He must bear the cost of maintaining the
portion added
Q: How big should the easement be? 4. He must pay the increased cost of
A: The width of the easement shall be that which is preservation of the wall (Article 664)
sufficient for the needs of the dominant estate. 5. He shall be obliged to reconstruct the wall
(Article 651) at his expense if necessary for the wall to
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
18
2007 Team Bar-Ops Civil Law Committee
bear the increased height and if additional 2. Outlet must be at the point where egress is
thickness is required, he shall provide the easiest and establishing a conduit for
space therefore from his own land. drainage
3. Proper indemnity
iv. Light & view
Q: Can there be a stipulation or testamentary
• Easement of light (jus luminum) provision allowing excavations that could cause
-The right to admit light from neighboring danger to an adjacent land or building?
estate by virtue of the opening of a window A: No, the same shall be void. (Article 685)
or the making of certain openings.
• Easement of View (jus prospectus) Q: What should be done first before making an
-The right to make openings or windows to excavation?
enjoy the view thru the estate of another. A: Any proprietor who intends to make any
excavation shall notify all owners of adjacent lands.
Q: What is the prescriptive period for acquisition of
easement of light and view? b. Voluntary – established by the will of the
A: 10 years. owners.
Voluntary easements are governed by:
Q: From when does the prescriptive period start to 1. Title (in its existence)
run? 2. Prescription
A: Reckoning period depends on where the 3. Civil Code (in default of the above)
opening is made:
• If made on one’s own wall and the wall 3. As to its exercise:
does not extend over the property of a) Continuous Easements – the use of which
another – easement is negative. are, or may be, incessant without the
Reason: the owner merely exercises his intervention of any act of man. Ex. right of
right of dominion and not of an easement. aqueduct
Negative easement is not automatically
vested as formal prohibition is required. b) Discontinuous Easements – used at intervals
Period of prescription- starts from the time and depend upon the acts of man. Ex. right of
formal prohibition is made. way when it is physically impossible that man
shall continually pass over the way.
• If made thru a party wall or on one’s own
wall which extends over the neighboring 4. As to whether or nor its existence is indicated:
estate – easement is positive. a) Apparent Easements – made known and are
Reason: owner of the latter estate who has continually kept in view by external signs that
a right to close it up allows an reveal the use and enjoyment of the same.It
encumbrance on his property. is not necessary that its sign be seen; as long
Period of prescription – starts from the time as it may be seen or known on inspection.
the window is opened. b) Non-apparent Easements – show no external
indication of their existence
Q: How about with regard to openings at height of
ceiling joists? 5. As to the duty of the servient owner:
A: The owner of a wall which is not a party wall may a) Positive – imposes upon the owner of the
make an opening to admit light and air, but not view servient estate the obligation of allowing
subject to the ff: something to be done or doing it himself. Ex.
1.The size must not be >30 centimeters square right of way-imposes the duty to allow the use
2.The opening must be at the height of the of said way.
ceiling joists or immediately under the ceiling b) Negative – prohibits the owner of the servient
3.There must be an iron grating imbedded in estate from doing something which he could
the wall lawfully do if the easement did not exist. Ex.
4.There must be wire screen Easement of light and view where the owner
is prohibited from obstructing the passage of
Q: What if a wall becomes a party wall? light.
A: A part-owner can order the closure of the
opening. No part-owner may make an opening thru Q: What are the rights of the dominant owner?
a party wall without the consent of the others. A: (ARME)
1. Exercise all the rights necessary for the
Q: Does non-observance of the distances provided use of the easement (Article 625)
in Article 670 give rise to prescription? 2. Make on the servient estate all works
A: No, this refers to a negative easement as the necessary for the use and preservation of
window is thru a wall of the dominant estate. the servitude (Article 627 par. 1)
3. Renounce the easement if he desires
Q: Define drainage of buildings to exempt from contributing necessary
A: It is the right to divert the rain waters from one’s expenses (Article 628)
own roof to the neighbor’s estate. 4. Ask for mandatory injunction to prevent
impairment of his right. (Resolme v. Lazo,
Q: What are the conditions for drainage of 27 Phil 416)
buildings?
A: 1. No adequate outlet Q: What are the obligations of the dominant owner?
Q: Distingusih donation inter vivos from mortis Q: What are the forms of donation?
causa. A: 1. Of movable property:
A: a. With simultaneous delivery of property
Donation Mortis donated:
Donation Inter Vivos Causa - P 5,000 or < - may be oral/written
1. Takes effect during the Takes effect upon donor’s - > P 5,000 – written in public or private
lifetime of the donor, death document
independently of the his b. Without simultaneous delivery
death - The donation and acceptance must be
2. Cause is donor’s pure In contemplation of donor’s written in a public or private instrument
generosity death w/o intention to (Statute of Frauds), regardless of value.
dispose of the thing in Otherwise, donation is UNENFORCEABLE
case of survival
3. Valid if donor survives the Void if donor survives
donee
2. Of immovable property:
4. Generally irrevocable Always revocable at any a. Must be in a public instrument specifying
except for grounds time and for any reason the property donated and the burdens
provided for by law before the donor’s death assumed by the donee
5. Must comply with the Must comply with the b. Acceptance may be made:
formalities of donations formalities of a will - In same instrument or
6. Acceptance during After donor’s death - In another public instrument,
donor’s lifetime notified to the donor in authentic form,
7. Property completely Property retained by the and noted in both deeds. Otherwise,
conveyed to the donee donor while he is still alive donation is VOID.
8. Donor’s tax Estate tax
Q: What may donation cover?
Q: What are the limitations upon property which A: Donation may cover all present property.
may be donated inter vivos? Donation cannot comprehend future property.
A: (RFM) (Article 751)
1. Donor must reserve sufficient means for his
support and for his relatives who are entitled Q: Can future inheritance or the inchoate right to
to be supported by him (Article 750) inherit be donated?
2. Donation cannot comprehend future A: No, because it is future property.
property except future husband and wife (See
Article 84 FC) Q: May property, the acquisition of which is subject
3. No person may give by way of donation to suspensive condition be donated?
more than he may give by will A: Yes, because once the condition is fulfilled, it
retroacts to the day the contract is constituted.
Q: What are the donations prohibited by law? (Article 1187 par 1)
A: (CP WARP PANS)
1. By persons guilty of adultery or concubinage at Q: May ownership of property may be donated to a
the time of donation; (Article 739) person and usufruct to another?
2. Between persons found guilty of the same A: Yes, provided all the donees are living at the
criminal offense in consideration thereof; time of donation. (Article 756)
3. To a public officer or his/her spouse,
descendants or ascendants in consideration of Q: What are the rights and actions of the donor and
his/her office; donee? (Article 754)
4. To the priest who heard the confession of the A: The donee is subrogated to the rights and
donor during the latter’s last illness, or the actions which in case of eviction would pertain to
minister of the gospel who extended spiritual the donor. If the donation is simple or remunerative,
aid to him during the same period; donor is not liable for eviction or hidden defects
5. To relatives of such priest, etc. within the 4th because the donation is gratuitous, unless the
degree, or to the church to which such priest donor acted in bad faith. If the donation is onerous,
belongs; the donor is liable on his warranty but only to the
6. By a ward to the guardian before the approval extent of the burden.
of accounts;
7. To an attesting witness to the execution of Q: What are the rules regarding the liability of the
donation, if there is any, or to the spouse, donee to pay the debts of donor?
parents or children or anyone claiming under A:
them; 1) where donor imposes obligation
upon the donee: (Article 758)
Q: What is the status of the rights of the heirs to the Inherit an undetermined Are always given a
inheritance at the moment of death of the quantity whose exact determinate thing or a
decedent? amount cannot be known a fixed amount
A: Rights to succession vest at the moment of priori and which cannot be
death, not upon the filing of petition for testate/ fixed until the inheritance is
liquidated
intestate proceedings, not upon the declaration of
heirship or upon settlement of the estate. Succeed to the remainder of Only succeed to the
the properties after all the determinate thing or
debts and all the legacies quantity which is
Q: Can the heir enter to a contract of sale, and devisees have been mentioned in the legacy
conveyance or any disposition pertaining to his paid or devise
interest in the inheritance even pending the
Can exist whether the Only in testamentary
settlement of the estate? succession be testate or succession
A: Yes, because his hereditary share/interest in the intestate
decedent’s estate is transmitted or vested
In case of preterition, the The legacies and
immediately from the moment of decedent’s death. institution of an heir is devises remain valid
This is, however, subject to the outcome of the entirely annulled. insofar as they are not
settlement proceedings. inofficious.
In case of imperfect or The legacies and
Q: What is the nature of the transaction entered into defective disinheritance, the devisees remain valid
by the heir pertaining to his hereditary share in the institution of an heir is insofar as they are not
estate pending the settlement of the estate? annulled to the extent that inofficious.
A: The effect of such transaction is to be deemed the legitimes are impaired.
limited to what is ultimately adjudicated to the heir.
However, this aleatory character of the contract Q: Suppose a person is named to succeed to an
does not affect the validity of the transaction. entire estate. The estate, however, consists of only
one parcel f land. Is he an heir or a devisee?
Q: What are the kinds of succession? A: It depends on the manner of his designation in
A: the will. Here, because he is called to inherit the
1. Testate or voluntary- Succession by virtue entire estate, he is therefore an heir.
of a will.
2. Intestate or legal- Succession by operation Q: Can the remains of the decedent be inherited?
of law, in accordance with the presumed will of A: No. The remains of a person is beyond the
the decedent. commerce of men hence, may not be lawfully
3. Compulsory- Succession by operation of appropriated. Only properties which can be the
law; succession to the legitime. object of appropriation may be inherited.
4. Mixed- Succession partly by will and partly
by operation of law. TESTAMENTARY SUCCESSION
Q: What is meant by “strictly personal act”? B. Patent ambiguities- Those which are apparent
A: It means that in the making of a will preparation on the face of the will:
thereof cannot be wholly or partially entrusted to a 1. Uncertainty which arises upon the face of
third person or made through an agent or attorney. the will as to the application of any of its
It refers to the disposition of property. This is so provisions (Article 789, NCC).
because the essence of making a will is the
disposition of property, hence, it cannot be Steps in resolving the ambiguities:
delegated to another. 1. Examine the will itself;
2. Refer to extrinsic evidence or the surrounding
Q: Does it mean that the testator himself, make the circumstances, except oral declarations of the
draft of the will without consulting a lawyer? testator as to his intention.
A: No, the mechanical act of drafting the will may Reason: Because the testator can no longer refute
be entrusted to another, as long as the disposition whatever is attributed to him.
of property expresses the testator’s desires. Rules in the Construction of Wills:
1. Words of the will are to be taken in their
Q: What cannot be delegated to the discretion of a ordinary and grammatical sense unless there is
third person? a clear intention to use them in another sense
A: The following cannot be delegated to third can be gathered and ascertained.
person because they comprise the disposing power 2. Technical words are to be taken in their
of the testator: technical sense, unless:
1. Duration or efficacy of designation of heirs, a. The context clearly indicates a contrary
legatees, or devisees. intention or
2. Determination of the portions which are to b. It satisfactorily appears that he was
receive when referred to by name. unacquainted with such technical sense.
3. Determination as to whether or not a 3. The invalidity of one of several dispositions
disposition is to be operative. contained in a will does not result in the
invalidity of the other dispositions unless it is to
Q: What, on other hand, may be entrusted to third be presumed that the testator would not have
persons? made such other dispositions if the first invalid
A: The following may be entrusted to third persons: disposition had not been made.
1. Distribution of specific property or sums of 4. Every devise or legacy shall cover all the
money that the testator may leave in general to interest in the property disposed of unless it
specified classes or causes clearly appears from the will that he intended to
2. Designation of the persons, institutions or convey a less interest.
establishments to which such property or sums
are to be given or applied. Validity of Wills/ Governing Law
Reason: Here, there is really no delegation
because the testator has already set the Kinds of Validity of Wills:
parameters required by law, namely:
a. The specification of property or sums of 1. Extrinsic validity – refers to the forms and
money solemnities required by law.
b. The specification of classes or causes. a. As to time- the law in force at the
In effect, the third person will only be carrying time of the making of the will.
out the will of the testator as determined by these b. As to place- The will can be
parameters. executed in accordance to the
formalities of the testator’s
Q: What aspects of succession (testate or intestate) citizenship, domicile residence or
are governed by the national law of the decedent? the place where the will was
A: executed.
1. The order of succession
2. The amount of successional rights 2. Intrinsic validity – refers to the legality of
3. The intrinsic validity of testamentary provisions in the will.
provisions a. As to time- the law in force at the
4. The capacity of the heir, legatee or devisee time of the decedent’s death
to succeed. b. As to place- The national law of the
testator governs the intrinsic validity
Ambiguities in a Will of the will regardless of the place of
execution.
Q: What are the kinds of ambiguities in a will?
A: Q: What are the requisites of testamentary
A. Latent ambiguities – Ambiguities which are not capacity?
apparent on the face of a will but to A:
circumstances outside the will at the time the will 1. All persons not expressly prohibited
was made. Examples: by law
1. If it contains an imperfect description of 2. At least 18 years of age
person or property 3. Sound mind
A joint will executed by Filipinos, even if in a A will is ambulatory; it is revocable any time
foreign country, is void. during the lifetime of the testator for any
Reason for the prohibition: A joint will cause and for any reason or for no reason
cannot be revoked by one of the testators at all.
thereby rendering nugatory the ambulatory The testator’s right to revoke during his
nature of wills. lifetime is absolute. It can neither be waived
nor restricted.
Formal Validity of Wills Made Either in the
Philippines or Abroad 1. Revocation by implication of law –
Revocation produced by operation of law when
Testator Place of Applicable Law certain acts or events take place after a will has
Execution been made, rendering void or useless either the
Filipino Philippines New Civil Code (NCC) whole will or certain testamentary dispositions
Filipino Foreign Place of execution therein.
Country NCC Rationale: The law presumes a change of mind
Alien Philippines NCC or on the part of the testator due to certain
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
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2007 Team Bar-Ops Civil Law Committee
changed circumstance pertaining to the family the efficacy of the new disposition; and if, for any
relations or in the status of the property. reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the
Examples: original will remains in full force.(Molo vs.Molo)
a. When after the testator has made a will, he Simply put, for this doctrine to operate, the
sells or donates the legacy or devise; testator must have intended that the revocation of
b. Provisions in a will in favor of a spouse who his first will is dependent on the validity of his
has given cause for legal separation shall second will. In this case the intention of the testator
be revoked by operation of law the moment is clear: He does not want to die intestate.
the decree of legal separation is granted.
c. When an heir, legatee or devisee commits Principle of Instanter
an act of unworthiness; Express revocation of the first will renders it void
d. When accredit that had been given as a because the revocatory clause of the second will
legacy is judicially demanded by the operates to revoke the previous will INSTANTLY
testator; upon the execution of the will containing it.
e. When one, some or all the compulsory
heirs have been preterited or omitted, the Revocation of a will based on a false cause or
institution of heirs is void. an illegal cause is null and void.
Recognition in a will of an illegitimate child
3. By some will, codicil, or other writings does not lose its legal effect even if the will
executed as provided in case of wills: is revoked.
a. Express - provides revocatory
clause REPUBLICATION AND REVIVAL OF WILLS
b. Implied - provisions are completely
inconsistent with previous will Q: What is republication?
The testator must have the testamentary A: Republication is the act of testator where he
capacity at the time of the making of the reproduces in a subsequent will the dispositions
subsequent will. contained in a previous will which is void as to form,
The will containing the revocatory clause must or he executes a codicil to his will
itself be valid, otherwise, there is no
revocation. A will that is void as to its form may be
In case of inconsistent wills, the subsequent republished by reproducing or copying all
will prevails over the prior will because it is the dispositions in the new or subsequent
the latest expression of testamentary intent will. (Re-execution)
of the testator. A will that is valid as to form and has earlier
been revoked may be republished by
4. Burning, tearing, canceling or executing a codicil which makes reference
obliterating a will (Physical Act of Destruction) to the revoked will. (Republication by virtue
of a codicil)
Requisites of revocation by physical act of
destruction: Q: What are the effects of republication by virtue
a. Actual physical act of destruction of a codicil?
b. Testamentary capacity of the A:
testator 1. The codicil revives the previous will;
c. Intention to revoke 2. The will is republished as of the date of
d. Performed by testator himself or the codicil;
other person in the presence and express
direction of the testator. Q: What is revival?
A: Revival is the restoration to validity of a
Q: What is the doctrine of presumed previously revoked will by operation of law
revocation?
A: The doctrine of presumed revocation Examples of Revival:
provides that where it is established that the 1. When a compulsory heir is preterited, the
testator had in his possession or had access to the institution of heirs is annulled. However, if
will, but it cannot be found or located upon his the preterited heir predeceased the
death, the presumption is that he must have testator, the institution is revived, without
revoked the will by overt act. (Gago vs. Mamuyac) prejudice to the right of representation;
2. If after making a will, the testator makes a
The presumption is, however, not conclusive second will impliedly revoking the first, the
and anyone who has proof to the contrary revocation of the second will revives the
may rebut the presumption. first will.
1. The formalities required by law have not been Q: What are the requisites of a valid institution?
complied with; A:
2. The testator was Insane or mentally incapable 1. The will must be extrinsically valid;
of making will; 2. The institution must be valid intrinsically
3. The will was executed through force or under (the legitime must not be impaired, the heir
duress, or influence of fear or threats; must be certain or ascertainable; there should
4. The will was procured by undue and improper be no preterition);
pressure and influence, on part of the 3. the institution must be effective (no
beneficiary or some other person; predecease, no repudiation by the heir)
5. The signature of testator was procured by
fraud (Article 839, NCC). Q: What are the three principles in the institution of
heirs?
6. The testator acted by mistake or did not
A:
intend that the instrument he signed should be
1. Equality: heirs who are instructed without a
his will;
designation of shares inherit in equal parts
2. Individuality: heirs collectively instituted
Q: What are the distinctions between disallowance
are deemed individually named unless contrary
and revocation?
intent is proven
Disallowance Revocation
It is given by judicial It is a voluntary act of
order. the testator.
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
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2007 Team Bar-Ops Civil Law Committee
3. Simultaneity: when several heirs are
instituted, they are instituted simultaneously Q: What are the different kinds of substitution?
and not successively A:
Q: What are the various kinds of institution? 3. Mixed- The fulfillment of the condition depends
A: Institution of heir may be: partly on chance and partly on the will of the heir,
1. with a condition devisee, or legatee.
2. with a term
3. for a certain purpose or cause (modal Rules for casual and mixed conditions:
institution) General rule: The condition may be fulfilled any
time, either before or after the testator's death
CONDITION unless the testator provides otherwise.
Condition is future or uncertain event or a past Reason: It is not within the heir, devisee or
event unknown to the parties, upon which the legatee's control.
performance of an obligation depends.
Kinds: Qualification: If condition is already fulfilled at the
1. Suspensive condition gives rise to the time of the execution.
right if it happens. a. Testator is unaware- The condition is deemed
2. Resolutory condition extinguishes the complied with or fulfilled.
right if it happens. b. Testator is aware- (1)If the condition can no
longer be fulfilled again, it is deemed fulfilled; (2)If
Resolutory Condition Suspensive Condition the condition can still be fulfilled, fulfill it again.
The disposition becomes The effectivity of the
effective upon the death disposition is dependent Q: What is the effect if the suspensive condition is
of the testator but is upon the fulfillment of the not fulfilled?
extinguished upon the condition. A: If the suspensive condition is not fulfilled, the
happening of the estate will be placed under administration until:
condition. 1. The condition is fulfilled, in which
case the estate should be given to the instituted
Q: What is the effect of an impossible condition on heir;
the testamentary disposition? 2. It becomes obvious that it cannot
A: If an impossible condition is imposed, the be fulfilled, in which case, the estate should be
condition is deemed not imposed. The given to the intestate heirs.
testamentary disposition becomes pure, absolute
and unconditional. Impossible conditions include TERM
those which are illegal, against public order and A disposition with a suspensive term does not
public policy. prevent the instituted heir from acquiring his
rights and transmitting them to his heirs even
Q: What is the rule on the imposition of condition, before the arrival of the term.
charge or burden regarding the legitimes? Reason: The right of the heir instituted subject to
A: General rule: The testator cannot impose any
a term is vested at the time of the testator's
charge, condition or substitution whatsoever upon
death- he will just wait for the term to expire.
the legitimes. If a charge condition or substitution is
If the heir dies after the testator but before the
imposed, it shall be considered as not imposed.
term expires, he transmits his rights to his own
Exception: The testator can validly impose a
heirs because of the vested right.
prohibition against the partition of the legitime for a
period not exceeding 20 years.
Suspensive Term Suspensive Condition
Condition Prohibiting Marriage-Rules: The right of the heir The heir enters into the
1. If the condition is on the first marriage- The instituted subject to a inheritance only when he
condition is considered as not imposed. term is vested at the time is alive and qualified at
2. If the condition is imposed on the second of the testator's death. the time of the testator's
marriage – Hence, if he dies after death and when the
General rule: The condition is deemed as not the testator but before condition happens. (Art.
imposed. the term expires, he can 1034, par. 3)
Exception: The condition is valid if imposed by: transmit his rights to his
(a) deceased spouse; own heirs.
The death of the instituted The death of the instituted
(b) ascendants of the spouse;
heir before the arrival of heir before the fulfillment of
(c) descendants of the spouse. the term does not annul the the condition annuls the
institution. institution.
Q: What are the kinds of suspensive conditions?
A: Q: When the disposition is subject to a term, what
1. Purely Potestative- The fulfillment of the should be done by the instituted heirs or legal heirs
condition depends solely upon the will of the heir, so that they can enjoy possession of the property?
devisee or legatee. A: Distinguish whether the term is suspensive or
General rule: The condition must be fulfilled as resolutory.
soon as the heir learns of the testator's death. 1. Suspensive term- The legal heirs can enjoy
Exception: If the condition has already been possession of the property until the expiration of the
fulfilled and it cannot be fulfilled again, the condition period but they must put up a bond (caucion
is deemed fulfilled.
Q: What is disinheritance?
A: Disinheritance is the process or act, thru a DISCUSSION: Grounds for Disinheritance
testamentary disposition of depriving in a will any
compulsory heir of his legitime for true and lawful 1. Attempt against the life, etc.
cause.
Final conviction is necessary.
The only way in which a compulsory heir can be
"Attempt" is a generic term which includes all
deprived of his legitime is through valid
kinds of commission, whether frustrated or
disinheritance.
consummated. Intent to kill must be present.
Disinheritance is not automatic. There must be
evidence presented to substantiate the
2. Accusation.
disinheritance and must be for a valid and
sound cause.
a. “Accusation” is a generic term which includes:
Effect of Disinheritance: Total exclusion to the (i)filing of an information; (ii) presenting
inheritance, meaning, loss of legitime, right to incriminating evidence; (iii) acting as a
intestate succession, and of any disposition in witness against the ascendant.
a prior will. b. Imprisonment of more than six (6) years
Disinheritance, however, is without prejudice to c. Accusation is groundless- Ascendant is
the right of representation of the children and acquitted on the finding that:
descendants of the person disinherited. (i)there is no crime; or
BUT the disinherited parent shall not have the (ii)that the ascendant did not commit it.
usufruct or administration of the property If the ascendant was acquitted on reasonable
which constitutes the legitime. doubt, the ascendant cannot disinherit
because the accusation is not groundless.
Q: What are the requisites of a valid
disinheritance? 3. Adultery and concubinage
A: Disinheritance must be:
1. Made in a valid will
Conviction is required.
2. Identity of the heir is clearly established
3. For a legal cause
4. Fraud, violence, intimidation or undue
4. Expressly made
influence as regards the will
5. Cause stated in the will
6. Absolute or unconditional Total
7. Cause must be true and if challenged by the This goes into the very essence of will-making.
heir, it must be proved to be true (proponent of
disinheritance has the burden of proof.) 5. Refusal to support without justifiable cause
Abandonment by a parent of his children Q: What are the distinctions and similarities
Induced their daughter to live a corrupt or between imperfect disinheritance and preterition?
immoral life- It includes grandparents to A:
granddaughters. Imperfect Preterition
Attempt against their virtue- Mere attempt is Disinheritance
enough as long as it can be proven. DISTINCTIONS:
N.B. In all 3 cases, conviction is not required. The institution remains The institution of heirs is
valid, but must be reduced completely annulled.
insofar as the legitime has
10. Loss of parental authority been impaired.
SIMILARITIES:
Loss of parental authority is a ground for In both cases, the omitted heir and the imperfectly
disinheritance only if there is fault on the part disinherited heir get at least their legitime
of the heir. In both, the legacies and devises remain valid insofar
as the legitime has not been impaired.
11. The spouse has given cause for legal Both refer to compulsory heirs.
separation
Q: What are the defenses that the disinherited
A decree of legal separation is not essential nor compulsory heir may avail?
is a final judgment in a criminal case required. A:
If there is legal separation, the testator does 1. Have the will declared void – disinheritance
need to disinherit. Disinheritance takes place depends upon a valid will OR
by operation of law. 2. If will is declared valid, contest the reason
for the disinheritance as not being one
Q: What is reconciliation? provided for by the law, or contest the
A: There is reconciliation when two persons who authenticity of cause
are at odds decide to set aside their differences and
to resume their relations. They need not go back to LEGACIES AND DEVISES
their old relation.
Legacy - testamentary disposition by virtue of
A handshake is not reconciliation. It has to be which a person is called by testator to inherit an
something more. It must be clear and individual item of personal property
deliberate. Devise - testamentary disposition by virtue of which
a person is called by the testator to inherit an
In disinheritance, reconciliation need not be in
individual item of real property
writing.
Q: What can be bequeathed or devised?
Q: What is the effect of reconciliation on a person’s
A: Anything within the commerce of man or which is
right to disinherit?
A: alienable.
a. If there is no will- It deprives the offended
person of his right to disinherit the offending Q: Can the testator bequeath or devise a thing or
person. property belonging to someone else?
b. If already disinherited- It sets aside A: It depends on the situations below.
disinheritance already made. First situation: The testator thought that he owned
it.
General rule: A legacy or devise of a thing
Q: What are the distinctions between a valid belonging to someone else when the testator
disinheritance and preterition? thought that he owned it is a void legacy or devise
A: because it is vitiated by mistake.
Valid Disinheritance Preterition Exception: If the testator acquires it after making
Disinheritance is always The omission may be his will.
intentional. either intentional or
unintentional. Second situation: The testator knows that he does
The cause must always be It may be with or without not own but ordered its acquisition.
stated in the will; it must be cause. If the thing given as devise or legacy is not
true and legal. owned by the testator at the time he made the will
Always intentional Intentional or but he orders his estate to acquire it, it is a valid
Unintentional legacy or devise. The testator knew that he did not
The disinherited heir Preterition annuls the own it. There is no mistake.
receives nothing. (either by institution of heirs
way of legitime or intestate
succession)
There must always be a will. It may exist with or Art. 933. If the thing bequeathed belonged to
without a will (as when the legatee or devisee at the time of the
everything has been execution of the will, the legacy or devise shall
given to only one of the be without effect, even though it may have been
compulsory heirs by way subsequently alienated by him.
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
42
2007 Team Bar-Ops Civil Law Committee
If the legatee or devisee acquires it
gratuitously after such time, he can claim Q: Is a legacy or devise considered payment of a
nothing by virtue of the legacy or devise; but if debt, if the testator has a standing indebtedness to
it has been acquired by onerous title he can the legatee or devisee?
demand reimbursement from the heir or the A: No, legacy or devise is not considered payment
estate. of a debt because if it is, then it would be a useless
legacy or devise since it will really be paid.
Q: What is the effect if the thing or property
bequeathed or devised belonged to the legatee or Q: What is the order of payment of legacies and
devisee at the time the will was executed? devises?
A: The legacy or devise is ineffective even if the A:
legatee or devisee alienates the thing after the will 1. Remuneratory legacies or devises
is made. 2. Legacies or devises declared by testator to be
preferential
Q: Suppose the legatee or devisee acquired the 3. Legacies for support
property after the will has been executed? Suppose 4. Legacies for education
he acquired the thing by onerous title? What would 5. Legacies or devises of a specific determinate
be the effect? thing which forms part of the estate
A: If at the time the legacy or devise is made, the 6. All others pro rata
thing did not belong to the legatee or devisee but
later on he acquires it, then: Q: What are the grounds for the revocation of
legacy or devise?
a. If he acquired it by gratuitous title, then the A:
legacy or devise is void. 1. Transformation of the thing in such a
Reason: The purpose of the testator that the manner that it does not retain either the
property would go to the devisee or legatee has form or the denomination it had.
already been accomplished with no expense to 2. Alienation of the thing bequeathed.
the legatee or devisee.
In general, the alienation of the property revokes
b. If he acquired it by onerous title, the legacy the legacy or devise notwithstanding the nullity
or devise is valid and the estate may be of the transaction.
required to reimburse the amount. However, whether or not the legacy or devise is
revoked or not depends on the basis for the
Q: Suppose the property bequeathed or devised nullity of the contract:
has been pledged or mortgaged, who has the 1. If the nullity is based on vitiated consent, the
obligation to free the property from such legacy or devise is not revoked because there
encumbrance? was no intention to revoke.
A: As a general rule, the pledge or mortgage must 2. For all other grounds, the legacy or devise is
be paid by the estate, except if the testator provides revoked.
otherwise. However, any other charge such as
Exception: If the sale is pacto de retro and the
easements and usufruct, with which the thing
testator reacquired it during his lifetime.
bequeathed is burdened, shall be respected by the
legatee or devisee.
3. Total lost of the thing bequeathed.
Rules on Legacy of Credit and Legacy of
The lost of the thing bequeathed must not be
Remission
attributed to the heirs. There should be no
fault on the part of the heirs.
Q: What is a legacy of credit?
A: Legacy of credit takes place when the testator
bequeaths to another a credit against a third CAPACITY TO SUCCEED
person. In effect, it is a novation of the credit by the
subrogation of the legatee in the place of the Capacity to succeed is the ability to inherit and
original creditor. retain property obtained mortis causa
COLLATION
Concurrence Theory – satisfy legitime and then
Collation- the process of adding the value of thing distribute disposable portion, if any pro rata
donated to the net value of hereditary estate.
Collation is applicable to both donations to Exclusion Theory – satisfy legitime and then give
compulsory heirs and donations to strangers disposable portion, if any to the preferred heir in the
General rule: Compulsory heirs are obliged to order of intestate succession
collate.
Exceptions: TABLE OF LEGITIMES
1. when testator should have so expressly (Based on possibility of concurrence)
provided; Legend:
2. when compulsory heir repudiates his Legitimate Children or Descendants LCD
inheritance Illegitimate Children or Descendants ILCD
Legitimate Parents or Ascendants LPA
What to Collate: Illegitimate Parents or Ascendants ILPA
1. Any property/right received by gratuitous Surviving Spouse SS
title DURING testator’s lifetime
2. All that may have been received from Concurring Legitime Free
decedent during his lifetime Compulsory Heirs Portion
3. All that their parents have brought to ILCD ⅓ ⅓
collation if alive SS
⅓
ILCD ¼ ⅛
PARTITION SS
LPA ⅛
Partition and Distribution-separation, division and ½
assignment of thing held in common among those ILC ¼ ¼
to whom it may belong LPA
½
LPA ½ ¼
Q: Who can demand partition? SS
A: ¼
1. any compulsory heir ILPA ¼ ½
2. any voluntary heir SS
¼
3. any legatee or devisee ILCD
4. any person who has acquired an interest in ¼ ½
SS
the estate ¼
ILC alone ½ ½
Q: When partition CANNOT be demanded? LPA alone ½ ½
A: Partition cannot be demanded when: ILPA alone
1. Expressly prohibited by testator for a
½ ½
General Rule: SS alone ½ ½
period not more than 20 years
2. Co-heirs agreed that estate not be divided Marriage in articulo mortis,
for period not more than 10 years, testator died w/in 3 months ⅓ ⅔
renewable for another 10 yrs
Marriage in articulo mortis,
3. Prohibited by law testator died w/in 3 months
4. When to partition estate would render it but have been living as
unserviceable for use for which it was husband and wife for not ½ ½
intended less than 5 years
LCD alone ½ ½
Order of Intestate Succession One LCD ½ ¼
SS
Legitimate Child Illegitimate Child ¼
Legitimate Child and Legitimate Child and Two or more LCD ½ Dependent
Legitimate Descendants Legitimate Descendants SS (Same as on number
one LCD) of LCD
Legitimate Parents and Illegitimate Children and LCD ½ Dependent
Legitimate Ascendants Legitimate or Illegitimate ILCD on ILCD
Descendants
½of LCD
Note: In alternative obligations, choice takes effect DIVISIBLE AND INDIVISIBLE OBLIGATIONS
only upon communication of the choice to the other Divisible Indivisible
party and from such time the obligation ceases to susceptibility of an - non-susceptibility to be
be alternative (Art. 1205) obligation to be performed performed partially
partially -partial performance is
*Debtor cannot choose prestations which are: tantamount to non-
1. impossible performance
2. unlawful Note: The obligation to deliver a divisible thing may
3. could not have been the object of the be considered indivisible when:
obligation a. the law so provides
b. stipulation of the parties
Q: What are joint and solidary obligations?
A: (Art. 1207) Q: What is a joint indivisible obligation?
A: It is an obligation in which the object is indivisible
Q: What is the effect of joint obligation? but the liabilities of the parties are joint.
A: the entire obligation is to be paid or performed
proportionately by the debtors. Note:*enforcement of the obligation must be carried
out against all debtors
Q: What is the effect solidary obligation? * In case of breach, only the guilty debtor will
A: Each one of the debtors is obliged to pay the be liable for damages
entire obligation, and each one of the creditors has
the right to demand from any of the debtors the Q: What are obligations w/ penal clause?
payment or fulfillment of the entire obligation A: (Art. 1226)
Q: Joey, Jovy and Jojo are solidary debtors under a Q: What is a Penalty Clause?
loan obligation of P300,000.00 which has fallen A: It is an accessory obligation attached to the
due. The creditor has, however, condoned Jojo's principal obligation to assure greater responsibility
entire share in the debt. Since Jovy has become in case of breach.
insolvent, the creditor makes a demand on Joey to
pay the debt. Note: GR: The penalty fixed by the parties is a
1. How much, if any, may Joey be compelled to compensation or substitute for damages in case of
pay? breach.
2. To what extent, if at all, can Jojo be compelled by XPNS: 1. stipulation to the contrary
Joey to contribute to such payment? 2. Debtor is sued for refusal to pay the
A: 1. Joey can be compelled to pay only the agreed penalty
remaining balance of P200,000, in view of the 3. Debtor is guilty of fraud
remission of Jojo s share by the creditor. (Art. 1219,
Civil Code) Q: When may PENALTY be reduced (Judicial)?
2. Jojo can be compelled by Joey to contribute A: P.i.U.
P50,000. Art. 1217, par. 3, Civil Code provides, 1. Partial performance of the obligation
"When one of the solidary debtors cannot, because 2. irregular performance of the obligation
of his insolvency, reimburse his share to the debtor 3. penalty is unconscionable
paying the obligation, such share shall be borne by
all his co-debtors, in proportion to the debt of each." Q: What are the purposes of penal clause?
Since the insolvent debtor's share which Joey paid 1. function coercitiva o de garantia-to insure
was Pl00,000, and there are only two remaining the performance of the obligation
debtors - namely Joey and Jojo - these two shall 2. function liquidatoria-to liquidate the amount
share equally the burden of reimbursement. Jojo of damages to be awarded to the injured party
may thus be compelled by Joey to contribute in case of breach
P50,000.00. (Bar Question, 1998) 3. function estrictamente penal-to punish the
obligor in case of breach
Q: What are the kinds of solidary obligation?
A: Q: What are the modes of extinguishment of an
1. Passive– solidarity on the part of the debtors obligation?
2. Active– solidarity on the part of the creditors A: (Art. 1231)
3. Mixed– solidarity on both sides I. PAYMENT OR PERFORMANCE (Art.
1232)
Indivisibility Solidarity
1. refers to the prestation 1.refers to the vinculum Payment may consist not only in the delivery of
or object of the contract existing between the money but also the giving of a thing (other than
subjects or parties money), the doing of an act, or not doing of an act.
2.does not require plurality 2.requires the plurality of
of subjects or parties parties or subjects GR: Creditor is not bound to accept payment or
3.in case of breach, it is 3.in case of breach, the performance by a third person.
converted to one of liability of the solidary XPNS:
indemnity for damages debtors for damages 1. when made by a third person who has
and the indivisibility of the remains solidary interest in the fulfillment of the obligation
obligation is terminated 2. contrary stipulation
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
52
2007 Team Bar-Ops Civil Law Committee
Q: What are the REQUISITES OF A VALID A: (Art. 1240)
PAYMENT?
A: C.C-P.A.D. GR: Payment to an unauthorized person is not a
1. capacity of the payor valid payment.
2. capacity of the payee XPNs:
3. propriety of the time, place, manner of 1. Payment to an incapacitated person if:
payment a. he kept the thing delivered, or
4. acceptance by the creditor b. it has been beneficial to him
5. delivery of the full amount or the full 2. Payment to a 3rd person insofar as it redounded
performance of the prestation to the benefit of the CR
3. Payment in GF to the possessor of credit
Q: What are the characteristics of payment?
A: (Integrity, Identity, Indivisibility) Q: What are the rules on monetary obligation?
A:
1. integrity of payment 1. payment in cash- must be made in the
currency stipulated, if not possible, then in the
Note: legal tender in the Philippines
GR: performance should always be in full
XPNS: 2. payment in check or other negotiable
a. substantial performance – instrument- not considered payment, they are
b. intent to comply in good faith not considered legal tender and may be refused
c. deviation must only be slight by the creditor except when:
d. estoppel or waiver – CR accepts
incomplete or irregular performance without a. when the document has been
protest or objection cashed
e. express stipulation b. when it had been impaired through
f. debt is partly liquidated and partly the fault of the creditor
unliquidated
Q: What are the special forms of payment?
2. identity A:
1. APPLICATION OF PAYMENT - the designation
Note: of the debt to which the payment must be applied
GR: thing paid must be the very thing due and when the DR has several obligations of the same
cannot be another thing even if of same quality and kind in favor of the same CR
value NOTE: the choice is given to the debtor BUT may
XPN: Dation in payment be transferred to the CR as when the DR makes
payment and does not make application and DR
3. indivisibility accepts a receipt in which the application is made
Note: GR: When a void contract is such because of 1. Estoppel in Pais (by conduct)
illegality of the cause or the object and both parties a. Estoppel by silence
are at fault, the law leaves them where they are and b. Estoppel by acceptance of benefits
will not come to their aid. 2. Technical Estoppel
XPNS: a. Estoppel by deed
1. payment of usurious interest b. Estoppel by record
2. payment of money or delivery of property 3. Estoppel by judgment
for an illegal purpose where the party who 4. Laches
paid or delivered repudiated the contract Laches and Prescription
before the purpose has been accomplished Laches Prescription (1106-1155)
or before any damage has been caused to 1. concerned with effect of 1. concerned with fact of
a 3rd person delay delay
3. payment of money or delivery of property 2. inequity of permitting the 2. question of matter of time
by a party incapable of giving consent claim to be enforced
4. agreement or contract which is not illegal 3. not statutory 3. statutory
per se but is merely prohibited and the 4. applies in equity not 4. applies at law based on a
based on a fixed time fixed time
PARTNERSHIP
c. limited partnership
• must be registered as such in the SEC
(Otherwise, it’s not valid as a limited
partnership)
Q: What are the causes of dissolution? b. With respect to third persons (Art. 1834) –
A: Partner continues to bind partnership even after
1. Without violating the agreement: dissolution in ff. cases:
a. termination of the definite term or specific 1. Transactions to wind up
undertaking partnership affairs/complete transactions
b. express will of a partner in GF when there unfinished
is NO definite term and NO specified 2. Transactions would bind
undertaking partnership if not dissolved, when the other
c. express will of ALL partners (except those party/obligee:
who have assigned or whose interests have a. Situation 1 -
been charged) 1. Had extended credit to partnership
d. expulsion in GF of a member prior to dissolution &
2. Violating the agreement 2. Had no knowledge/notice of
3. Unlawfulness of the business dissolution, or
4. Loss b. Situation 2 -
a. SPECIFIC THING promised as 1. Did not extend credit to partnership
contribution is lost BEFORE delivery 2. Had known partnership prior to
b. Loss of a specific thing contributed dissolution
BEFORE or AFTER DELIVERY if only the 3. Had no knowledge/notice of
USE of such is contributed dissolution/fact of dissolution not
5. Death of any of the partners advertised in a newspaper of general
6. Insolvency of any partner or of the circulation in the place where partnership
partnership is regularly carried on
7. Civil interdiction of any partner
8. Decree of the court NOTE:
Partner cannot bind the partnership anymore after
Q: What are the grounds for resolution by decree of dissolution where:
court? 1. Dissolution is due to unlawfulness
A: (Art. 1831) to carry on with business (except: winding up of
partnership affairs)
Q: What is the effect of dissolution on authority of a 2. Partner has become insolvent
partner?
A:
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
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2007 Team Bar-Ops Civil Law Committee
3. Partner unauthorized to wind up a. If the business is not continued by the
partnership affairs, except by transaction with other partners, to have the partnership
one who: property applied to discharge its liabilities and
a. Situation 1 - to receive in cash his share of the surplus
1. Had extended credit to partnership less damages caused by his wrongful
prior to dissolution & dissolution.
2. Had no knowledge/notice of b. If the business is continued:
dissolution, or 1. To have the value of his interest in
b. Situation 2 - the partnership at the time of the
1. Did not extend credit to partnership dissolution, less any damage caused
prior to dissolution by the dissolution to his co-partners,
2. Had known partnership prior to dissolution ascertained and paid in cash or
3. Had no knowledge/notice of dissolution/fact of secured by bond approved by the court;
dissolution not advertised in a newspaper of and
general circulation in the place where partnership is 2. To be released from all existing and
regularly carried on future liabilities of the partnership.
NOTE: Dissolution does not discharge existing Q: What are the rights of injured partner where
liability of partner, except by agreement between: partnership contract is rescinded?
(1) partner himself, A:
(2) person/s continuing the business and 1. Right of a lien on, or retention of, the
(3) partnership creditors surplus of partnership property after
Q: What is winding up? satisfying partnership liabilities for any sum
A: Settling the partnership business or affairs after of money paid or contributed by him;
dissolution. 2. Right of subrogation in place of
Q: What is termination? partnership creditors after payment of
A: Point in time when all partnership affairs are partnership liabilities; and
wound up or completed and are the end of the 3. Right of indemnification by the guilty
partnership life partner against all debts and liabilities of
the partnership.
Q: Who are the persons authorized to wind up?
A: Q: How are the accounts settled between partners?
1. partners designated by the agreement A:
2. in the absence of such, all partners who 1. Assets of the partnership include:
have not wrongfully dissolved the partnership a. Partnership property (including goodwill);
3. legal representative of last surviving partner b. Contributions of the partners.
not insolvent 2. Order of application of the assets:
a. First, those owing to partnership creditors;
Q: What are the rights of a partner where b. Second, those owing to partners other
dissolution is not in contravention of the than for capital and profits such as loans
agreement? given by the partners or advances for
A: Unless otherwise agreed, the rights of each business expenses;
partner are as follows: c. Third, those owing for the return of the
1. To have the partnership property applied to capital contributed by the partners; and
discharge the liabilities of partnership; and d. Finally, the share of the profits, if any, due
2. To have the surplus, if any, applied to pay to each partner.
in cash the net amount owing to the
respective partners. Q: What is a partner’s lien?
A: the right of every partner to have the partnership
Q: What are the rights of a partner where property applied to discharge partnership liabilities
dissolution is in contravention of the agreement? and surplus assets, if any, distributed in cash to the
A: the rights of a partner vary depending upon respective partners, after deducting what may be
whether he is the innocent or guilty partner. due to the partnership from them as partners.
1. Rights of partner who has not caused the Q: What are the effects when the business of a
dissolution wrongfully: dissolved partnership is continued?
a. To have partnership property applied for A:
the payment of its liabilities and to receive in 1. Creditors of old partnership are also
cash his share of the surplus; creditors of the new partnership which
b. To be indemnified for the damages continues the business of the old one w/o
caused by the partner guilty of wrongful liquidation of the partnership affairs
dissolution; 2. Creditors have an equitable lien on the
c. To continue the business in the same consideration paid to the retiring /deceased
name during the agreed term of the partner by the purchaser when
partnership, by themselves or jointly with retiring/deceased partner sold his interest w/o
others; and final settlement with creditors
d. To possess partnership property should 3. Rights if retiring/estate of deceased
they decide to continue the business. partner:
2. Rights of partner who has wrongfully caused the a. To have the value of his interest
dissolution: ascertained as of the date of dissolution;
LIMITED PARTNERSHIP
Q: What are the loans or other transactions allowed
or prohibited in a limited partnership?
Q: What are the characteristics of a limited
A:
partnership?
1. Allowed
A:
a. Granting loans to partnership
1. One or more general partners control the
b. Transacting business with
business
partnership
2. One or more limited partners contribute to
c. Receiving pro rata share of
the capital and share in the profits but do not
partnership assets with general creditors if
participate in the management of the business
he is not also a general partner
and are not personally liable for partnership
2. Prohibited
obligations beyond their capital contributions
a. Receiving/holding partnership
3. May ask for the return of their capital
property as collateral security
contributions under conditions prescribed by
b. Receiving any payment,
law
conveyance, release from liability if it will
4. Partnership debts are paid out of common
prejudice right of 3rd persons
fund and the individual properties of general
partners
Q: When does a general partner need a
consent/ratification of all limited partners?
DIFFERENCES BETWEEN GENERAL AND
A:
LIMITED PARTNER/PARTNERSHIP
1. Do any act in contravention
of the certificate
GENERAL LIMITED
2. Do any act which would
Personally liable for Liability extends only to
partnership obligations his capital contributions make it impossible to carry on the ordinary
When manner of mgt. not business of the partnership
agreed upon, all general No participation in 3. Confess judgment against
partners have an equal right management partnership
in the mgt. of the business 4. Possess partnership
Contribute cash, property or
Contribute cash or property/assign rights in specific partnership
property only, not industry property other than for partnership purposes
industry
5. Admit person as general
Proper party to proceedings Not proper party to partner
by/against partnership proceedings by/against 6. Admit person as limited
partnership
partner - unless authorized in certificate
Interest not assignable w/o
Interest is freely 7. Continue business with
consent of other partners
assignable partnership property on death, retirement, civil
Name may appear in firm interdiction, insanity or insolvency of general
Name must not appear in partner unless authorized in certificate
name
firm name
Prohibition against No prohibition against Q: What are the specific rights of a limited partner?
engaging in business engaging in business A:
Retirement, death, 1. to have partnership books kept at principal
Does not have same
insolvency, insanity of gen. place of business
effect; rights transferred to
partner dissolves
legal representative 2. to inspect/copy books at reasonable hour
partnership
Q: What is a purchase money resulting trust? Q : What is the status of the following contract of
A: That which arises in favor of a person from sale ?
whom a consideration comes for a conveyance of A:
property, whether realty or personality, to another. 1. That entered into by minors:
Examples: • voidable only, therefore ratifiable
1. Donations made to a person but the
• remedy is action for annulment
beneficial interest is vested in another. The
(with partial restitution in so far as the minor
donee is the trustee while the designated third
is benefited)
person is the beneficiary. (Art. 1449)
• where necessaries are sold and
2. Purchase with borrowed funds and the
delivered – minor must pay reasonable
conveyance is made to lender to secure
price (Art. 1489)
payment of debt. (Art. 1450)
3. Legal title to property purchased taken in
2. Sale by & between spouses (Art. 1490):
one co-owner. (Art. 1452)
4. Legal title to land inherited by heir placed in
a. Contract with 3rd parties: VALID
the name of another. (1451)
b. Sale between spouses:
5. Conveyance to a person to secure
General Rule: VOID
performance of grantor’s obligation. (1454)
Reasons:
i. prevent defrauding
SALES creditors
ii. avoid situation where
Q: What is a Contract of Sale? dominant spouse take advantage of
A: (Art. 1458) weaker spouse
iii. avoid circumvention on
Q: What is a contract to sell? prohibition of donation between
A: A conditional sale where the seller, while spouses
reserving the ownership of the property despite XPNS:
delivery to the buyer, binds himself to sell the said i. separation of property
property exclusively to the buyer upon full payment. agreed (marriage settlement)
ii. judicial separation of
Q: State the basic differences (only in their property
legal effects) between:
A. a contract to sell, and a contract of sale 3. Between Common Law Spouses
B. a conditional sale and an absolute sale (Paramours)
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
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2007 Team Bar-Ops Civil Law Committee
• Status of contract: VOID (per case A: (Art. 1469)
law) Emptio Res Speratae Emptio Spei
Potential Existence (Sale of Hope)
Q: Who are the persons prohibited by law from 1. Sale of thing having 1. Sale of mere hope or
acquiring property by purchase? potential existence expectancy
A: (AGE-COP) 2. Uncertainty is w/ 2. Uncertainty is w/ regard
1. Agent w/ regard to property of principal regard quantity & to existence of thing
XPN: if principal gave consent. quality
3. Contract deals w/ 3. Contract deals w/
2. Guardian w/ regard to property of ward during
future thing present thing-hope or
period of guardianship expectancy
• Contracts entered by guardian in behalf of 4. Sale is valid only if the 4. Sale is valid even
ward are rescissible if ward suffers lesion by expected thing will though expected thing
more than ¼ of the value of property. exist. does not come into
• 2. existence as long as the
3. Executor/administrator w/ regard to the estate of hope itself validly
the deceased existed. (eg. lotto)
4. Court officers & employees – with regard to NOTE: Presumption is Emptio Res Sperata
property in litigation
5. Others specially disqualified by law. Sale and other Contracts
6. Public officers w/ regard to the property of the SALE DONATION
state Onerous Gratuitous
Consensual Formal contract
Law on Sales Law on Donation
Q: Who are those “others” specially disqualified?
SALE BARTER
A:
Consideration is giving of Consideration is
• Aliens who are disqualified to purchase money as payment giving of a thing
private agricultural lands (Art XII secs. 3
&7) • both are governed by law on sales;
• if consideration consists party in money & partly by
• Unpaid seller having a right of lien or
thing – look at manifest intention; if intention is not
having stopped the goods in transitu, is clear (1468 ):
prohibited from buying the goods either 1.value of thing is equal or less than amount of
directly or indirectly in the resale of the money – Sale
same at public/private sale which he may 2.value of thing is more than amount of money –
make (Art. 1533 (5); Art 1476 (4)) Barter
• The officer holding the execution or SALE CONTRACT FOR PIECE
deputy cannot become a purchaser or be OF WORK
interested directly or indirectly on any Goods are Goods are manufactured
purchase at an execution. (Sec. 21 Rule manufactured and specially for a customer, upon
39) sold by vendor in the special order and not for the
ordinary course of general market (Art. 1469)
• In sale by auction, seller cannot bid unless business
notice has been given that such sale is
SALE AGENCY TO SELL
subject to a right to bid in behalf of the 1.Buyer pays for 1. Agent not obliged to pay
seller. (Art. 1476) price of object for price; must account for
the proceeds of the sale.
Q: What are the objects of sale? 2.buyer becomes 2.principal remains the
A: owner of thing owner even if the object
1. Existing Goods delivered to agent
2. Future Goods-goods to be manufactured raised 3.seller warrants 3.agent assumes no personal
or acquired by seller after perfection of the liability as long as within
authority given
contract
4.not unilaterally 4. May be revoked unilaterally
revocable; even w/o ground
Q: Can RIGHTS be the objects of sale? 5.seller receives 5. Agent not allowed
A: YES, if they are transmissible.( Art..1347 1st par, profit
2nd sentence) SALE DACION EN PAGO
1. No pre-existing 1. Contract where property is
NOTE: credit. alienated to extinguish pre-
Object must be licit otherwise contract void. existing credit/debt.
Vendor must have right to transfer ownership at 2.Buyer-seller 2.novates CR-DR relationship
the time of delivery. relationship into seller-buyer
*services- CANNOT be the object of sale. They are SALE LEASE
not determinate things and no transfer of 1.obligation to 1.use of thing is for specified
ownership is available in services. absolutely transfer period only with obligation to
ownership of thing return
2.consideration is 2.consideration is the rental
Price: Must be- price
1. real 3.seller needs to be 3.lessor need not be owner
2. in money or its equivalent owner of thing to
3. certain or ascertainable at the time of the transfer ownership
perfection of the contract lease with option to
buy: really a
Q: When is the price certain? contract of sale
but designated as
Q: What are the buyer’s options in case of Breach Q: What is Legal Redemption?
of Warranty? A: It is the right to be subrogated upon the same
A: terms and conditions stipulated in the contract, in
1. Accept goods & set up breach of the place of one who acquires the thing by
warranty by way of recoupment in diminution purchase or by dation in payment or by other
or extinction or the price. transaction whereby ownership is transmitted by
2. Accept goods & maintain action onerous title.
against seller for damages
3. Refuse to Accept goods & maintain Q: What is Trust de son tort?
action against seller for damages A: It is a trust created by the purchase or
4. Rescind contract of sale & refuse redemption of property by one other than the
to receive goods/return them when already person lawfully entitled to do so and in fraud of
received. the other
Q: How is the contract of sale extinguished? Q: When does period of redemption begin to
A: Same grounds whereby obligations in run?
general are extinguished 1. right of legal pre-emption of redemption shall be
exercised within 30 days from notice by the
Q: What is Conventional Redemption ? buyer
A: seller reserved the right to repurchase thing sold *deed of sale not to be recorded in RD unless
coupled with obligation to return price of the sale, accompanied by affidavit that buyer has given
expenses of contract & other legitimate payments notice to redemptioners
and the necessary & useful expenses made on the 2. when there is actual knowledge, no need to
thing sold give written notice; period of redemption begins to
run from actual knowledge
Q: What is the rule on the Presumption of an
Equitable Mortgage? Q: What are the instances when the Right of
A: (Art. 1602) Legal Redemption is also granted?
A:
Note: 1. Redemption of homesteads
IN CASE OF DOUBT IN DETERMINING 2. Redemption in tax sales
WHETHER IT IS EQUITABLE MORTGAGE OR 3. Redemption by judgment debtor
SALE A RETRO (WITH RIGHT OF 4. Redemption in extrajudicial foreclosure
REPURCHASE) – IT SHALL BE CONSTRUED 5. Redemption in judicial foreclosure of mortgage
AS EQUITABLE MORTGAGE.
ASSIGNMENT
Q: What are the factors to be considered in
determining the nature of the contract? Sale of credits & other incorporeal things
A: ASSIGNMENT SALE
1. language of the contract Subject Intangibles (credit, Tangibles
2. conduct of parties matter incorporeal rights)
Remedy available to vendor: reformation of Form Consensual Consensual
contract Binding Recorded in No recording
effect to 3rd registry of needed to
Q: What is the period of redemption? persons property such effect
A:
1. No period agreed upon – 4 years from date Q: What are the effects of Assignment?
of contract A:
2. When there is agreement – should not 1. lack of knowledge or consent of debtor not
exceed 10 years; BUT if it exceeded, valid only for essential for validity but has legal effect
the first 10 years. 2. assignment of rights made w/o knowledge of
3. When period to redeem has expired & there debtor – debtor may set up against assignee
has been a previous suit on the nature of the the compensation w/c would pertain to him
contract – seller still has 30 days from final against assignor of all credits prior to
judgment on the basis that contract was a sale with assignment and later ones until he had
pacto de retro: knowledge of the assignment
rationale: no redemption due to erroneous 3. debtor has consented to assignment – cannot
belief that it is equitable mortgage which can be set up compensation unless assignor was
extinguished by paying the loan. notified that he reserved his right to the
4. When period has expired & seller allowed compensation
the period of redemption to expire – seller is at fault 4. debtor has knowledge but no consent -
for not having exercised his rights so should not be compensation may still be set up
granted a new period
NOTE: When there is an assignment of Credit or
Q: What is the Effect when there is No Redemption Incorporeal Right of assignor in Litigation
Made? gratuitously or onerously to the assignee, the latter
A: there must be judicial order before ownership of
real property is consolidated to the buyer a retro.
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
82
2007 Team Bar-Ops Civil Law Committee
would then be allowed to proceed against the 3. Purpose Use or temporary Consumption
debtor. possession
4. Subject Real or personal Only personal
Q: What are the rights included in assignment of Matter property property
credit? 5.Ownership Retained by the bailor Passes to the
of thing debtor
A: (1) guaranty; (2) mortgage; (3) pledge; (4)
6. thing to Exact
be thing loaned Equal amount of
preference. returned the same kind
and quality
Q: What is an indenture of assignment? 7. Who bears Bailor Debtor
A: Assignment of goods by way of security for the loss
payment of an obligation under a promissory note. 8. when to In case of urgent Only after the
return need even before the expiration of the
TOP 20 PROVISIONS IN THE LAW ON SALES: expiration of term term
Arts.1475,79,84,85,96,97,1504,05,37,44,1602,03,0 (the contract is in the
meantime
6,07,19,20,21,23,24,34.
suspended)
Q: When can the bailor be made liable for hidden Q: When is the contract of DEPOSIT
defects? constituted?
A: When the following requisites are present: A: From the moment a person receives a thing
a. there was a flaw or defect in belonging to another, with the obligation of safely
the thing loaned keeping it and returning the same upon demand.
b. the flaw or defect is hidden
c. the bailor is aware thereof Q: What are the characteristics of contract of
d. he does not advise the bailee Deposit?
of the same A:
e. the bailee suffers damages by 1. real contract – perfected by the delivery of
reason of said flaw or defect the subject matter. However, an agreement to
constitute a future deposit is a consensual
Q: Is there right of retention in commodatum? contract.
GR: No right of retention 2. a. if gratuitous: unilateral – because only
XPN: When the bailor, knowing the flaws of the the depository has an obligation
thing loaned, does not advise the bailee of the b. if for compensation: bilateral – gives rise to
same and the latter suffers damages. obligations on the part of both parties
3. principal purpose of the contract of deposit
MUTUUM is the safekeeping of the thing delivered
4. Contract of deposit is generally gratuitous.
Q: What are the characteristics of contract of Exceptions:
Mutuum? a. contrary stipulation
A: b. depository is in the business of
1. Borrower acquires ownership of the thing. storing goods
2. If the thing loaned is money, payment must c. property saved from destruction
be made in the currency which is legal tender in during calamity without owner’s knowledge,
the Philippines and in case of extraordinary just compensation should be given the
deflation or inflation, the basis of payment shall depository
be the value of the currency at the time of the 5. Generally, the depositary cannot use the thing
creation of the obligation. deposited except with the permission of the
3. If fungible thing was loaned, the borrower is depositor or when the preservation of the thing
obliged to pay the lender another thing of the requires its use but only for said purpose
same kind, quality and quantity.
DEPOSIT MUTUUM
2007 UST TEAM BAR-OPS CIVIL LAW COMMITTEE
Academics Committee Chairperson: Dominique Jose S. Puzon
Civil Law Committee Chairperson: Ayn Marie Grace G. Barit-Carig
Vice-Chairperson: Dexter Matias / Members: Clarissa Santos, Raphael Joseph Siares, Helen Grace Ilano, Marvin Zales,
Isaiah Asuncion, Melanie Ganaban, Angelo Grande, Bernadette Aguirre, Maria Ethelyn Adaoag, Isser Gatdula
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2007 Team Bar-Ops Civil Law Committee
Purpose
Safekeeping/custody Consumption NOTE: The rent of safety deposit boxes is an
When to Return ordinary contract of lease of things and not a
Upon demand of the Upon expiration of special kind of deposit because the General
depositor the term granted to Banking Act as revised has deleted the part where
the borrower banks are expressly authorized to accept
Subject Matter documents or papers for safe-keeping.
Movable Money or other
(extrajudicial) or fungible thing Q: What are the OBLIGATIONS OF DEPOSITARY
immovable (judicial) in Voluntary Deposit?
Relationship A:
Depositor- depositary Lender- borrower 1. to keep the thing safely and return it
Compensation 2. exercise same diligence as he would
No compensation of There can be exercise over his own property
things deposited with compensation of 3. not to deposit the thing with a 3rd person
each other (except credits unless expressly authorized by stipulation
by mutual 4. if the thing should earn interest:
agreement) a. collect interest as it falls due
b. take steps to preserve the value
DEPOSIT COMMODATUM and rights corresponding to it
5. Not to commingle things if so stipulated
Principal 6. Not to make use of the thing deposited
Purpose Safekeeping Transfer of use XPNS:
c. When preservation of thing
May be deposited requires its use
Always
Nature gratuitous or d. When authorized by depositor
gratuitous
onerous
7. When the thing deposited is delivered sealed and
closed:
Q: What are the kinds of deposit? a. return the thing in the same condition
A: b. pay damages if seal be broken through his
1. Judicial (sequestration) fault
2. Extra-judicial c. keep the secret of the deposit when seal is
a. Voluntary—the delivery is made by broken w/ or w/o his fault
the will of the depositor HOWEVER, the depositary is authorized to open
Extinguishment: the seal or lock when:
1) Loss or destruction of thing deposited; a. there is presumed authority
2) In gratuitous deposit, upon death of b. out of necessity
either depositor or depositary; 8. Pay for any loss or damage that may arise due to
3) Other causes (return of thing, novation, his fault
expiration of the term, fulfillment of *Liability of loss through fortuitous event
resolutory condition) (SUDA):
b. Necessary—made in compliance a. stipulated
with a legal obligation, or on the occasion of b. he uses thing w/o depositor’s
any calamity, or by travelers in hotels and permission
inns, or by travelers with common carriers. c. he delays its return
d. he allows others to use it (even if
JUDICIAL EXTRA-JUDICIAL he himself is authorized to use it)
Will of the 9. Return the thing deposited with all its fruits,
Creation Will of the court
contracting parties accessions, and accessories
Security or to 10. Pay interest on sums converted to personal use
ensure the right if the deposit consists of money
of a party to
Custody and
Purpose property or to Q: What are the OBLIGATIONS OF DEPOSITOR?
safekeeping
recover in case 1. pay expenses for preservation
of favorable a. gratuitous: reimburse depositary
judgment b. with compensation: expenses
Movables or borne by depositary
Subject immovables but 2. pay losses incurred by depositary due to
Movables only
Matter generally the character of the thing deposited
immovables XPNS:
generally gratuitous a. When at the time of deposit,
Cause Always onerous but may be the depositor was not aware of the
compensated dangerous character of the thing or was not
When Upon order of expected to know it.
must the the court or Upon demand of b. when the depositor notified the
thing be when litigation depositor depositary.
returned is ended c. when the depositary was aware
In whose of it without advice from the depositor
Person who Depositor or third
behalf it is
has a right person designated Q: When is the contract of deposit extinguished?
held
Liability for Obligations Q: What are the preferred credits with respect to
The debtor is liable with all his property, present the specific movable property?
and future, for the fulfillment of his obligations, A:
subject to the exemptions provided by law. 1. Duties, taxes and fees due thereon to the
state or any subdivision thereof;
Q: What are the exempt properties? 2. Claims arising from misappropriation,
A: breach of trust, or malfeasance by public
1. Family home constituted jointly by husband officials committed in the performance of their
and wife or by unmarried head of a family duties, on the movables, money or securities
(Article 152, Family Code). obtained by them;
Exceptions: 3. Claims for the unpaid price of movable
a. for non-payment of taxes; sold, on said movables, so long as they are in
b. for debts incurred prior to the the possession of the debtor, up to the value of
constitution of the family home; the same, and if the movable has been resold
c. for debts secured by mortgages on by the debtor and the price is still unpaid, the
the premises before or after such lien may be enforced on the price; this right is
constitution; not lost by the immobilization of the thing by
d. for debts due to laborers, destination, provided it has not lost its form,
mechanics, architects, builders, material substance and identity; neither is the right lost
men and others who have rendered service by the sale of the thing together with other
or furnished material for the construction of property for a lump sum, when the price thereof
the building can be determined proportionally;
2. Right to receive support as well as any 4. Credits guaranteed with a pledge so long
money or property obtained as such support. as the things pledged are in the hands of the
(Article 205, Family Code) creditor, or those guaranteed by a chattel
3. Tools and implements necessarily used by mortgage upon the things mortgaged, up to the
him in his trade or employment; value thereof;
4. Two horses, or two cows, or two carabaos 5. Credits for making repairs or preservation
or other beasts of burden, such as the debtor or personal property on the movable thus
may select, not exceeding one thousand pesos made, repaired, kept or possessed;
in value and necessarily used by him in his 6. Claims for laborers wages, on the goods
ordinary occupation; manufactured or the work done;
5. His necessary clothing and that of all his 7. For expenses of salvage, upon the goods
family. salvaged;
6. Household furniture and utensils necessary 8. Credits between the landlord and the
for housekeeping and used for that purpose by tenant arising from the contract of tenancy on
the debtor, such as the debtor may select, of a shares, on the share of each in the fruits or
value not exceeding one thousand pesos; harvest;
7. Provisions for individual or family use 9. Credits for transportation, upon the goods
insufficient for three months; carried, for the price of the contract and
The provisions for quasi-contracts in this Chapter Q: What are the elements of prejudicial question?
do not exclude other quasi-contracts which may A: The elements of a prejudicial question are:
come within the purview of the preceding article. (a) the previously instituted civil action involves an
(Article 2143) issue similar or intimately related to the issue raised
in the subsequent criminal action, and
Q: Distinguish Accion In Rem Verso from Solutio (b) the resolution of such issue determines whether
Indebiti or not the criminal action may proceed.
A:
Accion Rem Verso Solutio Indebiti Q: What is the additional requisite?
It is not necessary that Payment by mistake A: That the civil action must be filed ahead of the
payment be made by is an essential criminal action
mistake element
Q: What is the test to determine that existence of a
Q: What are the requisites for Accion Rem Verso? prejudicial question?
A: A: To determine the existence of a prejudicial
1. that the defendant has been enriched; question, it must appear that the civil case does not
2. that the plaintiff has suffered a loss; only involve the same facts upon which the criminal
prosecution is based but also that the resolution of
3. that the enrichment of the defendant is without
the issues raised in said civil action would
just or legal ground
necessarily be determinative of the guilt or
4. that the plaintiff has no other action based on innocence of the accused.
contract, quasi-contract, crime or quasi-delict
Q: Is the principle of prejudicial question applicable
Q: What is the limitation of accion rem verso? in administrative cases? Can there be a prejudicial
A: It can only be availed of if there is no other question even if does not involve a civil action and a
remedy to enforce it based on contract, quasi- criminal action?
contract, crime or quasi-delict A: Yes.
**Decisions in land registration proceedings Probative Value of Torrens Title (TT) – TT may
become final after the expiration of 30 days be received in evidence in all courts of the
from date of service of its notice. Decree of Philippines and shall be conclusive as to all matters
Registration becomes final after lapse of 1 year contained therein, principally as to the identity of the
from date of its issuance & entry. Decree land owner except so far as provided in the Land
becomes incontrovertible and unassailable. Registration Act (LRA)
Q: What is transmission?
A: It is the process of applying the law of a foreign
state through the law of a second foreign state