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Le"#ure No#es on C$%$l La&

Professor Ruben F. Balane C'AN(ES IN T'E NEW CIVIL CO)E


1. Granting of new rights Example: The Family Code erases the distinction between natural and spurious children. Now they are lumped together as illegitimate. Thus, spurious children are given rights. Example: Change in river course Example: Under the old Civil Code, there were only void and voidable contracts. With the addition o unen orceable and rescissible contracts, the !CC provides clari ication Examples: The dowry has been omitted" certain leases have also been omitted.

2. Different solutions to old problems 3. Clarification of old provisions

4. Certain subjects omitted The !CC is ar rom per ect. There are structural de ects. Certain things which should be in the preliminary section are ound elsewhere. #n e$ample o this is the vices o consent. Why are they ound in contracts% They are relevant in all &uridical transactions. #nother e$ample is the topic o degrees o relationship. This is ound only in succession. 'egrees o relationship are relevant in other boo(s too. Finally, why is tradition ound in the law on sales% Tradition is not only important in sales. )ather, tradition is a mode o ac*uiring ownership.

PRELI*INAR+ TITLE I. Effe"# an, A--l$"a#$on of La&s


Art. 1. This Act shall be known as the Civil Code of the Philippines. Art. 2. !aws shall take effect after fifteen da"s following the completion of their publication in the #fficial Ga$ette% unless it is otherwise provided. This Code shall take effect one "ear after such publication. &This code shall take effect ' "ear after such publication. The +C in the case o Lara vs. Del Rosario that the one year should be counted rom the date o actual release and not the date o issue. ,$ecutive -rder !o. 2.. supersedes #rticle 2 regarding the time o e ectivity o laws. EXECUTIVE ORDER NO. 200 PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR THEIR EFFECTIVITY

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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WHEREAS, Article 2 of the Civil Code partly provides that laws shall take effect after fifteen days following the completion of their p !lication in the "fficial #a$ette, nless it is otherwise provided % % %&' WHEREAS, the re( irement that for laws to !e effective only a p !lication thereof in the "fficial #a$ette will s ffice has entailed some pro!lems, a point recogni$ed !y the S preme Co rt in )a*ada, et al% vs% ) vera, et al% +#%R% ,o% -./01, 2ecem!er 2/, 0/3-4 when it o!served that 5t6here is m ch to !e said of the view that the p !lication need not !e made in the "fficial #a$ette, considering its erratic release and limited readership&' WHEREAS, it was likewise o!served that 5 6ndo !tedly, newspapers of general circ lation co ld !etter perform the f nction of comm nicating the laws to the people as s ch periodicals are more easily availa!le, have a wider readership, and come o t reg larly&' and WHEREAS, in view of the foregoing premises Article 2 of the Civil Code sho ld accordingly !e amended so the laws to !e effective m st !e p !lished either in the "fficial #a$ette or in a newspaper of general circ lation in the co ntry' ,"W, )HERE7"RE, 8, C"RA9", C% A:;8,", <resident of the <hilippines, !y virt e of the powers vested in me !y the Constit tion, do here!y order= Sec. 1. L !" "# $$ % &e e''ec% '%e( ')'%ee* + ," '-$$-!)*. %#e c-/0$e%)-* -' %#e)( 012$)c %)-* e)%#e( )* %#e O'')c) $ G 3e%%e -( )* *e!"0 0e( -' .e*e( $ c)(c1$ %)-* )* %#e P#)$)00)*e"4 1*$e"" )% )" -%#e(!)"e 0(-5)+e+. Sec. 2. A(%)c$e 2 -' Re012$)c Ac% N-. 6784 -%#e(!)"e &*-!* " %#e 9C)5)$ C-+e -' %#e P#)$)00)*e"4: *+ $$ -%#e( $ !" )*c-*")"%e*% !)%# %#)" E;ec1%)5e O(+e( (e #e(e2, (e0e $e+ -( /-+)')e+ cc-(+)*.$,. Sec. 6. T#)" E;ec1%)5e O(+e( "# $$ % &e e''ec% )//e+) %e$, '%e( )%" 012$)c %)-* )* %#e O'')c) $ G 3e%%e. 2one in the City of >anila, this 03th day of ? ne, in the year of " r @ord, nineteen h ndred and eightyAseven% &'( da"s following / does this mean on the 10
th

or 11

th

day% The law is not clear.

Under #rticle 2, publication in the - icial 2a3ette was necessary. !ow, under ,.-. !o. 2.., publication may either be in the - icial 2a3ette or a newspaper o general publication. &unless otherwise provided re ers to when the law shall ta(e e ect. 4t does not mean that publication can be dispensed with. -therwise, that would be a violation o due process. General )ule* 5aws must be published in either the - icial 2a3ette or a newspaper o general circulation. Exception: The law may provide manner meaning6 or another manner o publication. 'i erent

1. !ot in - icial 2a3ette or newspaper o general circulation" or Example: )ead over the television or the radio 7provided that the alternative is reasonable8 2. Change in the period o e ectivity &publication means making it known; dissemination. It doesnt have to be in writing.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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&Change period of effectivit" the gap between publication and e ectivity should be reasonable under the circumstances. 9e ore publication, cannot apply the law whether penal or civil (Pesigan vs. Angeles) hy! "ow can you be bound i# you dont know the law. )e*uirement o publication applies to all laws and is mandatory. Art. 3. +gnorance of the law e,cuses no one from compliance therewith.

Ignorantia legis neminem excusat 74gnorance o the law e$cuses no one8. This is a necessary rule or all civili3ed society. -therwise it would be impossible to en orce the law. 4t is very hard to determine whether or not a person really does not (now the law. Without this rule, there would be anarchy. The law sacri ices occasional harshness to prevent universal anarchy. There are potential methods to mitigate the severity o #rticle 3 #rticles 021 7:38, < 2100, 133;. 4n Kasilag vs. Rodrigue ! the +C said that the possession o the antichretic credit as possession in good aith since a di icult *uestion o law was involved antichresis. 4n this case, the parties were not very (nowledgeable o the law. #rticle 3 applies only to ignorance o =hilippine law. 4t does not apply to oreign law. 4n =rivate 4nternational 5aw, oreign law must be proven even i it is applicable. -therwise, the courts will presume the oreign law to be the same as =hilippine law. !aws shall have no retroactive effect% unless the contrar" is

Art. 4. provided.

Lex de "uturo #udex de preterito 7The law provides or the uture, the &udge or the past8. )etroactive law one which creates a new obligation and imposes a new duty or attaches a new disability with respect to transactions or considerations already past. General )ule* 5aw must be applied prospectively. Exceptions: 1. 4 the statute provides or retroactivity. Exception to t$e exception: a. Ex post "acto laws b. 5aws which impair the obligation o contracts 2. =enal laws inso ar as it avors the accused who is not a habitual criminal, even though at the time o the enactment o such law inal sentence has already been rendered. 3. )emedial laws as long as it does not a ect or change vested rights.

<

Art. %&'! ().

>ista(e upon a doubt ul or di icult *uestion o law may be the basis o good aith.

Art. &*%%. =ayment by reason o a mista(e in the construction or application o a doubt ul or di icult *uestion o law may come within the scope o the preceding article. Art. *))4. >utual error as to the legal e ect o an agreement when the real purpose o the parties is rustrated, may vitiate consent.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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;. When the law creates new substantive rights unless vested rights are impaired. 0. Curative laws 7the purpose is to cure de ects or imper ections in &udicial or administrative proceedings8 1. 4nterpretative laws ?. 5aws which are o emergency nature or are authori3ed by police power (+antos vs. Alvare " P,- vs. .""ice o" t$e President)

Art. 5. Acts e,ecuted against the provisions of mandator" or prohibitor" laws shall be void% e,cept when the law itself authori$es their validit". # mandatory law is one which prescribes some element as a re*uirement 7i.e., wills must be written #rticle @.; " orm o donations #rticle ?;A 8 # prohibitory law is one which orbids something 7 i.e., &oint wills #rticle @1@ 8 General )ule* #cts which are contrary to mandatory or prohibited laws are void. Exceptions: 1. When the law itsel authori3ed its validity 7i.e.! lotto, sweepsta(es8 2. When the law ma(es the act only voidable and not void 7 i.e.! i consent is vitiated, the contract is voidable and not void8 3. When the law ma(es the act valid but punishes the violator 7i.e.! i the marriage is celebrated by someone without legal authority but the parties are in good aith, the marriage is valid but the person who married the parties is liable8 ;. When the law ma(es the act void but recogni3es legal e ects lowing there rom 7i.e.! #rticles 1;12 B 1;13 8

Art. /04. testator.

,very will must be in writing and e$ecuted in a language or dialect (nown to the

Art. 142. 4n order that the donation o an immovable may be valid, it must be made in a public document, speci ying therein the property donated and the value o the charges which the donee must satis y. The acceptance may be made in the same deed o donation or in a separate public document, but it shall not ta(e e ect unless it is done during the li etime o the donor. 4 the acceptance is made in a separate instrument, the donor shall be noti ied thereo in an authentic orm, and this step shall be noted in both instruments.

Art. /*/. Two or more persons cannot ma(e a will &ointly, or in the same instrument, either or their reciprocal bene it or or the bene it o a third person.

Art. *4*&. 4 the act in which the unlaw ul or orbidden cause consists does not constitute a criminal o ense, the ollowing rules shall be observed6 718 When the ault is on the part o both contracting parties, neither may recover what he has given by virtue o the contract, or demand the per ormance o the otherCs underta(ing" 728 When only one o the contracting parties is at ault, he cannot recover what he has given by reason o the contract, or as( or the ul illment o what has been promised him. The other, who is not at ault, may demand the return o what he has given without any obligation to comply his promise. Art. *4*). 4nterest paid in e$cess o the interest allowed by the usury laws may be recovered by the debtor, with interest thereon rom the date o the payment.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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Art. 6. )ights ma" be waived% unless the waiver is contrar" to law% public order% public polic"% morals% or good customs% or prejudicial to a third person with a right recogni$ed b" law. What one can waive are rights and not obligations. Example! a creditor can waive the loan but the debtor may not. There is no orm re*uired or a waiver since a waiver is optional. Dou can waive by mere inaction, re using to collect a debt or e$ample is a orm o waiver. )e*uisites o a valid waiver (3errera vs. -oromeo) 1. ,$istence o a right 2. Enowledge o the e$istence o the right 3. #n intention to relin*uish the right 7implied in this is the capacity to dispose o the right8 General )ule* )ights can be waived. Exceptions: 1. 4 waiver is contrary to law, public order, public policy, morals or good customs 2. 4 the waiver would be pre&udicial to a 3 party with a right recogni3ed by law. 7e.g.! I# $ owes % &'(), % cant waive the loan i# % owes * and % has no other assets.8 Examples o" 4aivers 4$ic$ are pro$i5ited: 1. )epudiation o 3. Waiver o uture inheritance 2. Waiver o the protection o pactum commissorium uture support ;. Waiver o employment bene its in advance 0. Waiver o minimum wage 1. Waiver o the right to revo(e a will Art. 7. !aws are repealed onl" b" subse-uent ones% and their violation or non.observance shall not be e,cused b" disuse% or custom or practice to the contrar". /hen the courts declared a law to be inconsistent with the Constitution% the former shall be void and the latter shall govern. Administrative or e,ecutive acts% orders and regulations shall be valid onl" when the" are not contrar" to the laws or the Constitution. #rticle ? is obvious because time moves orward. -nly subse*uent laws can repeal prior laws either through6 1. # repealing clause 2. 4ncompatibility o the subse*uent and prior laws The violation o a law is not &usti ied even i 6 1. !o one ollows the law 7i.e.! nonpayment o ta$es8 2. There is a custom to the contrary
rd

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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The 2

nd

par. o #rticle ? is &udicial review in statutory orm.

Art. 8. 0udicial decisions appl"ing or interpreting the laws or the Constitution shall form a part of the legal s"stem of the Philippines. This is a new provision ta(en rom common law. Under the civil law tradition, the court merely applies the law. Fowever since the =hilippine legal system is a combination o civil law and common law, courts apply statutes as well as resort to the doctrine o precedent.

Art. 9. 1o judge or court shall decline to render judgment b" reason of the silence% obscurit" or insufficienc" of the laws. Art. 10. +n case of doubt in the interpretation or application of laws% it is presumed that the lawmaking bod" intended right and justice to prevail. What i the law is silent% stated in #rticle 1.. The court should render a decision based on &ustice as

Art. 11. Customs which are contrar" to law% public order or public polic" shall not be countenanced. What i customs are not contrary to law% The custom would be countenanced. Fowever, this does not mean that the custom would have obligatory orce. A custom must be proved as a fact% according to the rules of

Art. 12. evidence.

The law doesnt speci#y the cases when custom is relevant in litigation. %ut in case custom is relevant, it should be proven. Commentators say that custom is important in cases involving negligence. For e$ample, i a 6alesa in >anila is by custom supposed to have rattan bas(ets to prevent people rom slipping, i a person slips because there is no rattan bas(et, then he can sue or negligence.

Art. 13. /hen the laws speak of "ears% months% da"s or nights% it shall be understood that "ears are of three hundred si,t".five da"s each2 months% of thirt" da"s2 da"s% of twent".four hours2 and nights from sunset to sunrise. +f months are designated b" their name% the" shall be computed b" the number of da"s which the" respectivel" have. +n computing a period% the first da" shall be e,cluded% and the last da" included. #rticle 13 has been superseded by ,$ecutive -rder !o. 2A2 7the )evised #dministrative Code o 1A@?8 9oo( 1, G31.

Sec. 61. @egal <eriods% < =Ye (= "# $$ 2e 1*+e("%--+ %- 2e %!e$5e c $e*+ ( /-*%#"> =/-*%#= -' %#)(%, + ,"4 1*$e"" )% (e'e(" %- "0ec)')c c $e*+ ( /-*%# )* !#)c# c "e )% "# $$ 2e c-/01%e+ cc-(+)*. %- %#e *1/2e( -' + ," %#e "0ec)')c /-*%# c-*% )*"> =+ ,4= %- + , -' %!e*%,<'-1( #-1("> *+ =*).#%4= '(-/ "1*"e% %- "1*()"e.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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Under ,.-. !o. 2A2, a year is now e*uivalent to 12 calendar months and not 310 days. Under #rticle 13 leap years are not considered. For e$amples, in order to ma(e a will, one has to be 1@ years old. 9ut i you use #rticle 13, one loses ; to 0 days i you dont count the leap years. +.,. No. -.- is better than $rticle '/ since it is more realistic. There should have been a de inition o hours. That de inition is relevant or labor law. #ccording to =ro essor 9alane, an hour should be de ined as 1H2; o a calendar day. 4 you use the de inition that an hour is e*ual to 1. minutes, then we would have to de ine minutes, then seconds, and so on. 4t would be too scienti ic.

II. Confl$"#s of La& Pro%$s$ons


Art. 14. Penal laws and those of public securit" and safet" shall be obligator" upon all who live or sojourn in the Philippine territor"% subject to the principles of public international law and to treat" stipulations. Two principles6 1. Territorialit" General )ule6 Criminal laws apply only in =hilippine territory. Exception: #rticle 2, )evised =enal Code. 2. Generalit" General Rule: Criminal laws apply to everyone in the territory 7citi3ens and aliens8 Exceptions: 4n these instances, all the =hilippines can do is e$pel them a. Treaty stipulations which e$empt some persons within the &urisdiction o =hilippine courts 7e.g.! 9ases #greement8 b. Feads o +tate and #mbassadors 7,ote: Consuls are sub&ect to the &urisdiction o our criminal courts.8 Art. 15. !aws relating to famil" rights and duties% or to the status% condition and legal capacit" of persons are binding upon citi$ens of the Philippines% even though living abroad.

#rt. 2. Application o" its provisions. 0 ,$cept as provided in the treaties and laws o pre erential application, the provisions o this Code shall be en orced not only within the =hilippine #rchipelago, including its atmosphere, its interior waters and maritime 3one, but also outside o its &urisdiction, against those who6 1. +hould commit an o ense while on a =hilippine ship or airship" 2. +hould orge or counter eit any coin or currency note o the =hilippine 4slands or obligations and securities issued by the 2overnment o the =hilippine 4slands" 3. +hould be liable or acts connected with the introduction into these islands o the obligations and securities mentioned in the presiding number" ;. While being public o icers or employees, should commit an o ense in the e$ercise o their unctions" or 0. +hould commit any o the crimes against national security and the law o nations, de ined in Title -ne o 9oo( Two o this Code.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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Theories on =ersonal 5aw6 1. Do iciliar! t"eor! / the personal laws o domicile a person are determined by his

2. #ationalit! t"eor! / the nationality or citi3enship determines the personal laws o the individual Under #rticle 10, the =hilippines ollows the nationality theory. Family rights and duties, status and legal capacity o Filipinos are governed by =hilippine law. General )ule* Under #rticle 21 o the Family Code, all marriages solemni3ed outside the =hilippines in accordance with the laws in orce in the country where they were solemni3ed and valid there as such, is also valid in the =hilippines. Exception: 4 the marriage is void under =hilippine law, then the marriage is void even i it is valid in the country where the marriage was solemni3ed . Exception to t"e exception: 1. #rticle 30, :2, Family Code Art. 35. The following marriages shall be void from the beginning* 345 Those solemni$ed b" an" person not legall" authori$ed to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemni$ing officer had the legal authorit" to do so2 2. #rticle 30, :3, Family Code Art. 35. The following marriages shall be void from the beginning* 365 Those solemni$ed without license% e,cept those covered the preceding Chapter2 ,ven i the oreign marriage did not comply with either :s 2 and 3 o #rticle 30, =hilippine law will recogni3e the marriage as valid as long as it is valid under oreign law. Art. 16$ %1. )eal propert" as well as personal propert" is subject to the law of the countr" where it is stipulated. Lex situs or lex rei sitae governs real or personal property 7property is sub&ect to the laws o the country in which it is located8. 4n 7a8ag vs. -enguet consolidated, the +C said that =hilippine law shall govern in cases involving shares o stoc( o a =hilippine corporation even i the owner is in the U+.

Art. 16$ %2. 7owever% intestate and testamentar" successions% both with respect to the order of succession and to the amount of successional rights and to the intrinsic validit" of testamentar" provisions% shall be regulated b" the national law of the person whose succession is under consideration% whatever ma" be the nature of the propert" and regardless of the countr" wherein said propert" ma" be found. This is merely an e$tension o the nationality theory in #rticle 10.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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The national law o the decedent regardless o the location o the property shall govern. Thus, the national law o the decedent shall determine who will succeed. 4n 9iciano vs. -rimo, the +C said that the will o a oreigner containing the condition that the law o the =hilippines should govern regarding the distribution o the properties is invalid. 4n A nar vs. :arcia, what was involved was the renvoi doctrine. 4n this case, the decedent was a citi3en o Cali ornia who resided in the =hilippine. The problem was that under =hilippine law, the national law o the decedent shall govern. -n the other hand, under Cali ornia law, the law o the state where the decedent has his domicile shall govern. The +C accepted the re erral by Cali ornia law and applied =hilippine law 7single renvoi8. &ro'le : What i the decedent is a Filipino domiciled in a oreign country which ollows the domiciliary theory% #ccording to =ro essor 9alane, one way to resolve the situation is this =hilippine law should govern with respect to properties in =hilippine while the law o the domicile should govern with respect to properties located in the state o domicile.

Art. 17. The forms and solemnities of contracts% wills% and other public instruments shall be governed b" the laws of the countr" in which the" are e,ecuted. /hen the acts referred to are e,ecuted before the diplomatic or consular officials of the )epublic of the Philippines in a foreign countr"% the solemnities established b" Philippine laws shall be observed in their e,ecution. Prohibitive laws concerning persons% their acts or propert"% and those which have for their object public order% public polic" and good customs shall not be rendered ineffective b" laws or judgments promulgated% or b" determinations or conventions agreed upon in a foreign countr". Lex loci cele5rationis 7 ormal re*uirements o contracts, wills, and other public instruments are governed by the country in which they are e$ecuted8 There is no con lict between the 1 they tal( o 2 di erent things.
st

: o #rticle 11 and the 1

st

: o #rticle 1? since

Thus, the ormal re*uirements o a contract involving real property in the =hilippines must ollow the ormal re*uirements o the place where the contract was entered into. Fowever, i what is involved is not the ormal re*uirements, then the law o the place where the properties 7whether real or personal8 are located shall govern.

Art. 18. +n matters which are governed b" the Code of Commerce and special laws% their deficienc" shall be supplied b" the provisions of this Code.

III. 'u3an Rela#$ons


Art. 19. 8ver" person must% in the e,ercise of his rights and in the performance of his duties% act with justice% give ever"one his due% and observe honest" and good faith. Art. 20. 8ver" person who% contrar" to law% willfull" or negligentl" causes damage to another% shall indemnif" the latter for the same.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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Art. 21. An" person who willfull" causes loss or injur" to another in manner that is contrar" to morals% good customs or public polic" shall compensate the latter for the damage. Art. 22. 8ver" person who through an act of performance b" another% or an" other means% ac-uires or comes into possession of something at the e,pense of the latter without just or legal ground% shall return the same to him. Art. 23. 8ven when an act or event causing damage to another9s propert" was not due to the fault or negligence of the defendant% the latter shall be liable for indemnit" if through the act or event he was benefited. Art. 24. +n all contractual% propert" or other relations% when one of the parties is at a disadvantage on account of his moral dependence% ignorance% indigence% mental weakness% tender age or other handicap% the courts must be vigilant for his protection. Art. 25. Thoughtless e,travagance in e,penses for pleasure or displa" during a period of acute public want or emergenc" ma" be stopped b" order of the courts at the instance of an" government or private charitable institution. Art. 26. 8ver" person shall respect the dignit"% personalit"% privac" and peace of mind of his neighbors and other persons. The following and similar acts% though the" ma" not constitute a criminal offense% shall produce a cause of action for damages% prevention and other relief* 3'5 Pr"ing into the privac" of another9s residence* 345 :eddling with or disturbing the private life or famil" relations of another2 365 +ntriguing to cause another to be alienated from his friends2 3;5 <e,ing or humiliating another on account of his religious beliefs% lowl" station in life% place of birth% ph"sical defect% or other personal condition. Art. 27. An" person suffering material or moral loss because a public servant or emplo"ee refuses or neglects% without just cause% to perform his official dut" ma" file an action for damages and other relief against he latter% without prejudice to an" disciplinar" administrative action that ma" be taken. Art. 28. =nfair competition in agricultural% commercial or industrial enterprises or in labor through the use of force% intimidation% deceit% machination or an" other unjust% oppressive or highhanded method shall give rise to a right of action b" the person who thereb" suffers damage. Art. 29. /hen the accused in a criminal prosecution is ac-uitted on the ground that his guilt has not been proved be"ond reasonable doubt% a civil action for damages for the same act or omission ma" be instituted. >uch action re-uires onl" a preponderance of evidence. =pon motion of the defendant% the court ma" re-uire the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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+f in a criminal case the judgment of ac-uittal is based upon reasonable doubt% the court shall so declare. +n the absence of an" declaration to that effect% it ma" be inferred from the te,t of the decision whether or not the ac-uittal is due to that ground. Art. 30. /hen a separate civil action is brought to demand civil liabilit" arising from a criminal offense% and no criminal proceedings are instituted during the pendenc" of the civil case% a preponderance of evidence shall likewise be sufficient to prove the act complained of. Art. 31. /hen the civil action is based on an obligation not arising from the act or omission complained of as a felon"% such civil action ma" proceed independentl" of the criminal proceedings and regardless of the result of the latter. Art. 32. An" public officer or emplo"ee% or an" private individual% who directl" or indirectl" obstructs% defeats% violates or in an" manner impedes or impairs an" of the following rights and liberties of another person shall be liable to the latter for damages* 3'5 ?reedom or religion2 345 ?reedom of speech2 365 ?reedom to write for the press or to maintain a periodical publication2 3;5 ?reedom from arbitrar" or illegal detention2 3(5 ?reedom of suffrage2 3@5 The right against deprivation of propert" without due process of law2 3A5 The right to a just compensation when private propert" is taken for public use2 3B5 The right to the e-ual protection of the laws2 3C5 The right to be secure in one9s person% house% papers% and effects against unreasonable searches and sei$ures2 3'D5 3''5 3'45 3'65 3';5 3'(5 3'@5 The libert" of abode and of changing the same2 The privac" of communication and correspondence2 The right to become a member of associations or societies for purposes not contrar" to law2 The right to take part in a peaceable assembl" to petition the Government for redress of grievances2 The right to be a free from involuntar" servitude in an" form2 The right of the accused against e,cessive bail2 The right of the accused to be heard b" himself and counsel% to be informed of the nature and cause of the accusation against him% to have a speed" and public trial% to meet the witnesses face to face% and to have compulsor" process to secure the attendance of witness in his behalf2 ?reedom from being compelled to be a witness against one9s self% or from being forced to confess guilt% or from being induced b" a promise

3'A5

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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of immunit" or reward to make such confession% e,cept when the person confessing becomes a >tate witness2 3'B5 ?reedom from e,cessive fines% or cruel and unusual punishment% unless the same is imposed or inflicted in accordance with a statute which has not been judiciall" declared unconstitutional2 and ?reedom of access to the courts.

3'C5

+n an" of the cases referred to in this article% whether or not the defendant9s act or omission constitutes a criminal offense% the aggrieved part" has a right to commence an entirel" separate and distinct civil action for damages% and for other relief. >uch civil action shall proceed independentl" of an" criminal prosecution 3if the latter be instituted5% and mat be proved b" a preponderance of evidence. The indemnit" shall include moral damages. 8,emplar" damages ma" also be adjudicated. The responsibilit" herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Art. 33. +n cases of defamation% fraud% and ph"sical injuries a civil action for damages% entirel" separate and distinct from the criminal action% ma" be brought b" the injured part". >uch civil action shall proceed independentl" of the criminal prosecution% and shall re-uire onl" a preponderance of evidence. Art. 34. /hen a member of a cit" or municipal police force refuses or fails to render aid or protection to an" person in case of danger to life or propert"% such peace officer shall be primaril" liable for damages% and the cit" or municipalit" shall be subsidiaril" responsible therefor. The civil action herein recogni$ed shall be independent of an" criminal proceedings% and a preponderance of evidence shall suffice to support such action. Art. 35. /hen a person% claiming to be injured b" a criminal offense% charges another with the same% for which no independent civil action is granted in this Code or an" special law% but the justice of the peace finds no reasonable grounds to believe that a crime has been committed% or the prosecuting attorne" refuses or fails to institute criminal proceedings% the complaint ma" bring a civil action for damages against the alleged offender. >uch civil action ma" be supported b" a preponderance of evidence. =pon the defendant9s motion% the court ma" re-uire the plaintiff to file a bond to indemnif" the defendant in case the complaint should be found to be malicious. +f during the pendenc" of the civil action% an information should be presented b" the prosecuting attorne"% the civil action shall be suspended until the termination of the criminal proceedings. Art. 36. Pre.judicial -uestions% which must be decided before an" criminal prosecution ma" be instituted or ma" proceed% shall be governed b" rules of court which the >upreme Court shall promulgate and which shall not be in conflict with the provisions of this Code.

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PERSONS
Person #ny physical or &uridical being susceptible o rights and obligations, or o being the sub&ect o legal relations Persons (s. Things # person is the su5#ect o legal relations # things is the o5#ect o legal relations Art. 37. 0uridical capacit"% which is the fitness to be the subject of legal relations% is inherent in ever" natural person and is lost onl" through death. Capacit" to act% which is the power to do acts with legal effect% is ac-uired and ma" be lost. 2 component elements o capacity6 1. 0uridical capacit" There are no degrees o &uridical capacity. Iuridical capacity is the same in every person. !o one has more &uridical capacity than others. 4t is inherent in natural persons. -n the other hand, it arises in arti icial persons when such arti icial persons are created. This is best presented by a spectrum6

2. Capacit" to act

DE

+nfant

Alien

:ost People

'DDE

!obody has 1..J capacity to act. The law imposes restrictions on capacity to act. #s long as one has contractual capacity 7a.6.a. ull civil capacity8 one is near '((1 capacity to act. 23ull civil capacity is not really '((1 but close to it. With contractual capacity, one is generally able to per orm contracts and dispose o property. !obody has .J capacity to act. 4n ants are close to .J but still have capacity to act. For e$ample, even etus has the right to succeed and also have the right to the integrity o body. #liens cannot own colleges or broadcast media.

Art. 38. :inorit"% insanit" or imbecilit"% the state of being a deaf.mute% prodigalit" and civil interdiction are mere restrictions on capacit" to act% and do not e,empt the incapacitated person from certain obligations% as when the latter arise from his acts or from propert" relations% such as easements. Art. 39. The following circumstances% among others% modif" or limit capacit" to act* age% insanit"% imbecilit"% the state of being a deaf.mute% penalt"% prodigalit"% famil" relations% alienage% absence% insolvenc" and trusteeship. The conse-uences of these circumstances are governed in this Code% other codes% the )ules of Court% and in special laws. Capacit" to act is not limited on account of religious belief or political opinion. A married woman% twent".one "ears of age or over% is -ualified for all acts of civil life% e,cept in cases specified b" law.

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#rticles 3@ and 3A are really the same thing. They are redundant. +nsolvenc" certain obligations cannot be per ormed 7i.e.! one cannot pay o in avor o one creditor while e$cluding other creditors8 Trusteeship / one is placed in guardianship. Prodigalit" / it is not by itsel guardianship a restriction. 4t is a ground to be placed in debts

These restrictions dont e4empt incapacitated persons #rom certain obligations. 5nder #rticle 1101, there are 0 sources o obligations6 1. 5aw 2. Contract 3. 'elict ;. Kuasi/delict 0. Kuasi/contract

Thus, #rticles 3@ and 3A prevent incapacitated persons rom incurring contractual obligations only. Thus, even though an insane person cannot be thrown in &ail or a criminal act, the insane person is still civilly liable 7delict8. #n incapacitated person must still pay income ta$ i income is earned. $lthough $rticles /6 and /. dont men tion it, incapacitated persons may ac*uire rights. For e$ample, they have the right to accept donations or to succeed. The enumeration in #rticles 3@ and 3A is not e$clusive. There are others spread throughout the code. 7i.e.! a lawyer cannot buy property in litigation #rticle 1;A1 708 8 #rticle 3A, last : has been amended by ).#. !o. 1@.A. o ma&ority but 1@. #rticle 3A, last : What are the cases speci ied by law% 21 years is no longer the age

I.

Na#ural Persons

Art. 40. Firth determines personalit"2 but the conceived child shall be considered born for all purposes that are favorable to it% provided it be born later with the conditions specified in the following article. Art. 41. ?or civil purposes% the foetus is considered born if it is alive at the time it is completel" delivered from the mother9s womb. 7owever% if the foetus had an intra.uterine life of less than seven months% it is not deemed born

Art. *42*. The ollowing persons cannot ac*uire by purchase, even at a public or &udicial auction, either in person or through the mediation o another6 708 Iustices, &udges, prosecuting attorneys, cler(s o superior and in erior courts, and other o icers and employees connected with the administration o &ustice, the property and rights in litigation or levied upon an e$ecution be ore the court within whose &urisdiction or territory they e$ercise their respective unctions" this prohibition includes the act o ac*uiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the ob&ect o any litigation in which they may ta(e part by virtue o their pro ession.

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Page 1! of 3 !

if it dies within twent".four hours after its complete deliver" from the maternal womb. =rinciples6 1. For personality to be ac*uired one must be born 2. -nce birth occurs, personality or avorable purposes retroacts to the moment o conception To be born means to be alive a ter the etus is completely separated rom the mothers womb by cutting o## the umbilical cord. General )ule* cord is cut To be born, it is enough that the etus is alive when the umbilical

Exception: 4 the intra/uterine li e is less than ? months, it must live or at least 2; hours, be ore it is considered born 7There is no distinction as to how the child dies whether natural, accidental, etc.8 #ccording to =ro essor 9alane, modern medicine cannot as o yet determine i the intra/uterine li e is ? months or less in terms o number o days. >odern medicine cannot determine the e$act time when ertili3ation too( place. >odern medicine estimates the etus age in wee(s. #n e$ample o a case where upon birth occurs personality retroacts to the moment o conception is in case o succession since it is avorable to the child. -n the other hand, i the purpose is or paying ta$es, personality does not retroact since it is un avorable to the child. 4n :elu vs. ;A, the +C said that the ather could not ile the action or damages. The etus never ac*uired personality because it was never born it was not alive at the time it was delivered #rom the mothers womb. 7ince the #etus did not ac8uire any personality, it ac*uired no rights which could be transmitted to the ather. Thus, the ather could not sue in a representative capacity. The ather could have sued in his personal capacity had the ather su ered anguish which he did not. Art. 42. Civil personalit" is e,tinguished b" death.

The effect of death upon the rights and obligations of the deceased is determined b" law% b" contract and b" will. This article deals with the e$tinguishment o civil personality 'eath is not de ined in the Civil Code. !ot even doctors (now precisely when death occurs. There are many theories. The act o death is important because it a ects civil personality and legal relations. The main e ect o death is readily seen in succession. 'eath is also relevant to labor law and insurance.

Art. 43. +f there is a doubt% as between two or more persons who are called to succeed each other% as to which of them died first% whoever alleges the death of one prior to the other% shall prove the same2 in the absence of proof% it is presumed that the" died at the same time and there shall be no transmission of rights from one to the other.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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RULE 1614 RULES OF COURT Sec. 6. 2isp ta!le pres mptions% ? T#e '-$$-!)*. 0(e"1/0%)-*" 1*c-*%( +)c%e+4 21% / , 2e c-*%( +)c%e+ *+ -5e(c-/e 2, -%#e( e5)+e*ce@ ABBC (e " %)"' c%-(, )'

T# % e;ce0% '-( 01(0-"e" -' "1cce"")-*4 !#e* %!- 0e("-*" 0e()"# )* %#e " /e c $ /)%,4 "1c# " !(ec&4 2 %%$e4 -( c-*'$ .( %)-*4 *+ )% )" *-% "#-!* !#- +)e+ ')("%4 *+ %#e(e (e *- 0 (%)c1$ ( c)(c1/"% *ce" '(-/ !#)c# )% c * 2e )*'e((e+4 %#e "1(5)5-("#)0 )" +e%e(/)*e+ '(-/ %#e 0(-2 2)$)%)e" (e"1$%)*. '(-/ %#e "%(e*.%# *+ .e -' %#e "e;e"4 cc-(+)*. %- %#e '-$$-!)*. (1$e"@ 1. I' 2-%# !e(e 1*+e( %#e .e -' ')'%ee* ,e ("4 %#e -$+e( )" +ee/e+ %- # 5e "1(5)5e+> 2. I' 2-%# !e(e 2-5e %#e .e -' ");%,4 %#e ,-1*.e( )" +ee/e+ %- # 5e "1(5)5e+> 6. I' -*e )" 1*+e( ')'%ee* *+ %#e -%#e( 2-5e ");%,4 %#e '-(/e( )" +ee/e+ %- # 5e "1(5)5e+> D. I' 2-%# 2e -5e( ')'%ee* *+ 1*+e( ");%,4 *+ %#e "e; 2e +)''e(e*%4 %#e / $e )" +ee/e+ %- # 5e "1(5)5e+> )' %#e "e; 2e %#e " /e4 %#e -$+e(> E. I' -*e 2e 1*+e( ')'%ee* -( -5e( ");%,4 *+ %#e -%#e( 2e%!ee* %#-"e .e"4 %#e $ %%e( )" +ee/e+ %- # 5e "1(5)5e+.

This is a presumption regarding simultaneous death and not a rule on survivorship. -n the other hand, the )ules provide or a presumption o survivorship based on certain criteria. The )ules o Court shall apply where6 1. The issue does not involve succession but something else 7i.e., insurance, suspensive conditions8" and 2. The persons perish in the same calamity

#rticle ;3 shall apply where6 1. The case involves succession" and 2. The persons do not perish in the same calamity.

4 the conditions in the )ules o Court or #rticle ;3 do not concur, do not apply either. &ro'le : What i calamity% succession is involved and the persons perish in the same con lict

>ost commentators say #rticle ;3 will prevail. This is the only case o between the )ules o Court and #rticle ;3.

4n <oa=uin vs. ,avarro, #rticle ;3 was not applied. There was no need to apply the presumption in #rticle ;3 since there was evidence to show who died irst.

II. 5ur$,$"al Persons


Art. 44. The following are juridical persons* 3'5 The >tate and its political subdivisions2 345 #ther corporations% institutions and entities for public interest or purpose% created b" law2 their personalit" begins as soon as the" have been constituted according to law2 365 Corporations% partnerships and associations for private interest or purpose to which the law grants a juridical personalit"% separate and distinct from that of each shareholder% partner or member.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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This enumerates the &uridical persons. # &uridical person is an organic unit resulting rom a group o persons or mass or property to which the state grants or recogni3es personality and capacity to hold patrimonial rights independent o those o component members The &uridical personality o political subdivisions and public corporations 7i.e.! 2+4+, +++8 commences when the law creating them becomes e ective. The &uridical personality o a private corporation commences upon incorporation with the +,C. The &uridical personality o a partnership commences upon the meeting o the minds o the parties. #lthough the Catholic Church is not one o those mentioned in #rticle ;;, it is still considered as a &uridical person in -arlin vs. Ramire because o tradition.

Art. 45. 0uridical persons mentioned in 1os. ' and 4 of the preceding article are governed b" the laws creating or recogni$ing them. Private corporations are regulated b" laws of general application on the subject. Partnerships and associations for private interest or purpose are governed b" the provisions of this Code concerning partnerships. 0=)+D+CA! P8)>#1 +tate =olitical subdivision =ublic corporation =rivate corporation =artnerships G#<8)18D FG Constitution 7'e ines its organi3ation and limits its rights vis/ L/vis citi3ens8 Charter Charter Corporation Code, #rticles o 4ncorporation and 9y/5aws +tipulations o the parties and suppletorily by the general provisions on partnership

Art. 46. 0uridical persons ma" ac-uire and possess propert" of all kinds% as well as incur obligations and bring civil or criminal actions% in conformit" with the laws and regulations of their organi$ation. Art. 47. =pon the dissolution of corporations% institutions and other entities for public interest or purpose mentioned in 1o. 4 of article ;;% their propert" and other assets shall be disposed of in pursuance of law or the charter creating them. +f nothing has been specified on this point% the propert" and other assets shall be applied to similar purposes for the benefit of the region% province% cit" or municipalit" which during the e,istence of the institution derived the principal benefits from the same. 'issolution is ound in detail in the Corporation Code.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

Page 10 of 3 !

III. C$#$6ens7$- an, )o3$"$le


Art. 48. The following are citi$ens of the Philippines* 3'5 Those who were citi$ens of the Philippines at the time of the adoption of the Constitution of the Philippines2 345 Those born in the Philippines of foreign parents who% before the adoption of said Constitution% had been elected to public office in the Philippines2 365 Those whose fathers are citi$ens of the Philippines2 3;5 Those whose mothers are citi$ens of the Philippines and% upon reaching the age of majorit"% elect Philippine citi$enship2 3(5 Those who are naturali$ed in accordance with law. This has been superseded by the Constitution.

ARTICLE IV4 PHILIPPINE CONSTITUTION Section 0% T#e '-$$-!)*. (e c)%)3e*" -' %#e P#)$)00)*e"@ A1C A2C A6C ADC T#-"e !#- (e c)%)3e*" -' %#e P#)$)00)*e" C-*"%)%1%)-*> % %#e %)/e -' %#e +-0%)-* -' %#)"

T#-"e !#-"e ' %#e(" -( /-%#e(" (e c)%)3e*" -' %#e P#)$)00)*e"> T#-"e 2-(* 2e'-(e F *1 (, 1G4 1HG64 -' F)$)0)*- /-%#e("4 !#- e$ec% P#)$)00)*e c)%)3e*"#)0 10-* (e c#)*. %#e .e -' / B-()%,> *+ T#-"e !#- (e * %1( $)3e+ )* cc-(+ *ce !)%# $ !.

Art. 49. 1aturali$ation and the loss and reac-uisition of citi$enship of the Philippines are governed b" special laws. Art. 50. ?or the e,ercise of civil rights and the fulfillment of civil obligations% the domicile of natural persons is the place of their habitual residence. Art. 51. /hen the law creating or recogni$ing them% or an" other provision does not fi, the domicile of juridical persons% the same shall be understood to be the place where their legal representation is established or where the" e,ercise their principal functions. #rticle 0. governs the domicile o natural persons. #rticle 01 tal(s about the domicile o &uridical persons. )e*uisites o 'omicile 7;allego vs. >era86 1. =hysical =resence 2. 4ntent to remain permanently Einds o 'omicile 1. 'omicile o -rigin 'omicile o parents o a person at the time he was born. 'omicile chosen by a person, changing his domicile o origin. 2. 'omicile o Choice

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

Page 11 of 3 !

# 3 re*uisite is necessary intention not to return to ones domicile as his permanent place.

rd

3. 'omicile by -peration o 5aw 7i.e.! #rticle 1A , domicile o minor8 )esidence vs. 'omicile )esidence is not permanent 7There is no intent to remain8 'omicile is permanent 7There is intent to remain8

#ccording to the +upreme Court in 9arcos vs. ;.9ELE;, the wi e does not lose her domicile upon marriage. 7he does not necessarily ac8uire her husbands domicile. Until the spouses decide to get a new domicile, the wi e retains her old domicile. Under #rticle 1A@ o the Family Code, the domicile is i$ed &ointly. 3 )ules6 1. # man must have a domicile somewhere. 2. # domicile once established remains until a new one is ac*uired. 3. # man can only have one domicile at a time.

The ollowing #rticles in the Civil Code mention domicile6 1. #rticle @21 will* Art. 821. The following are dis-ualified from being witnesses to a 3'5 An" person not domiciled in the Philippines2 345 Those who have been convicted of falsification of a document% perjur" or false testimon". 2. #rticle @2A Art. 829. A revocation done outside the Philippines% b" a person who does not have his domicile in this countr"% is valid when it is done according to the law of the place where the will was made% or according to the law of the place in which the testator had his domicile at the time2 and if the revocation takes place in this countr"% when it is in accordance with the provisions of this Code. 3. #rticle 1201 Art. 1251. obligation. Pa"ment shall be made in the place designated in the

There being no e,press stipulation and if the undertaking is to deliver a determinate thing% the pa"ment shall be made wherever the thing might be at the moment the obligation was constituted. +n an" other case the place of pa"ment shall be the domicile of the debtor. +f the debtor changes his domicile in bad faith or after he has incurred in dela"% the additional e,penses shall be borne b" him.

Art. '2. The husband and wi e shall i$ the amily domicile. 4n case o disagreement, the court shall decide.

LECTURE NOTES ON CIVIL LAW Professor Ruben F. Balane

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Court.

These provisions are without prejudice to venue under the )ules of

The concept o domicile is not as important in civil law countries unli(e common law countries which ollow the nationality theory.

IV. Surna3es
+urnames are important or identi ication. +urnames identi y the amily to which a person belongs 7transmitted rom parent to child8. # name is a word or a combination by which a person is (nown or identi ied 7 Repu5lic vs. ?ernande 8 Characteristics o +urnames 1. #bsolute intended to protect rom con usion 2. -bligatory 3. Fi$ed cant change at ones leisure ;. -utside the commerce o man cant sell or donate 0. 4mprescriptible / even i one does not use, still your name )ules 1. #s ar as the state is concerned, your real name is the one in the Civil )egistry 7not the baptismal certi icate since parish records are no longer o icial8 2. Change o name can only be done through court proceedings Art. 376. 1o person can change his name or surname without judicial authorit". 3. Fowever, a person can use other names which are authori3ed by C.#. !o. 1;2 as amended by ).#. !o. 1.@0 7use o pseudonym8 2uidelines regarding Change o !ame 1. 4n a petition or change o name, courts are generally strict. Dou have to show su icient cause. The cases o ,aldo a vs. Repu5lic and Repu5lic vs. 9arcos illustrate what are su icient causes. Repu5lic vs. 3ernande added an additional ground. The enumeration is not an e$clusive list o causes. They are merely the ones re*uently cited. 4n Repu5lic vs. ;A, the child wanted to change to the surname o the step#athers. The 7upreme *ourt said this is not allowed since it will cause con#usion as to the childs paternity.

2. 4n a petition or in&unction or in a criminal case or violation o C.#. !o. 1;2, courts are generally liberal or as long as there is no raud or bad aith. 4n Legamia vs. IA;, the +upreme Court allowed the mistress to use her live/in partners name since everyone knew that she was th e mistress no con usion. 4n 7olentino vs. ;A, the +upreme Court allowed the ormer >rs. Tolentino to (eep on using the surname o Tolentino since the same was not being used or raudulent purposes.

3. 4n case o adoption where the woman adopts alone, it is the maiden name that should be given the child 7<o$nston vs. Repu5lic8 Art. 370. A married woman ma" use* 3'5 7er maiden first name and surname and add her husband9s surname% or 345 7er maiden first name and her husband9s surname or 365 7er husband9s full name% but prefi,ing a word indicating that she is his wife% such as H:rs.H # married woman may use only her maiden name and surname. +he has an option and not a duty to use the surname o her husband as provided or in #rt. 3?.. This is the obiter dictum in Yasin vs. Sharia which cites Tolentino. #ccording to Yasin vs. Sharia, when the husband dies, the woman can revert to her old name without need or &udicial authori3ation.

Art. 176$ )a il! *o+e. +llegitimate children shall use the surname and shall be under the parental authorit" of their mother% and shall be entitled to support in conformit" with this Code. The legitime of each illegitimate child shall consist of one.half of the legitime of a legitimate child. 8,cept for this modification% all other provisions in the Civil Code governing successional rights shall remain in force. 4llegitimate children shall use the surname o the mother.

Art. 377. =surpation of a name and surname ma" be the subject of an action for damages and other relief. Art. 378. The unauthori$ed or unlawful use of another person9s surname gives a right of action to the latter. $rticles /99 and /96 dont talk o# the same thing. #rticle 3?? deals with the usurpation o names. There is usurpation when there is con usion o identity 7i.e. you claim to be Iaime Mobel8 ,lements o #rticle 3?? 7Usurpation86 1. There is an actual use o# anothers name by the de#endant 2. The use is unauthori3ed 3. The use o# anothers name is to designate personality or identi#y a person. #rticle 3?@ is using o the name or purposes other than usurpation 7i.e.! slander" or e4ample, I will use :alivas surname in my product, calling it :aliva see /thru lingerie8

V. E3an"$-a#$on an, Age of *a8or$#9 :RA /142;


REPUBLIC ACT NO. 870H AN ACT LOWERING THE AGE OF MAFORITY FROM TWENTY<ONE TO EIGHTEEN YEARS4 AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE4 AND FOR OTHER PURPOSES Sec% 0% A(%)c$e 26D -' E;ec1%)5e O(+e( N-. 20H4 %#e F /)$, C-+e -' %#e P#)$)00)*e"4 )" #e(e2, /e*+e+ %- (e + " '-$$-!"@ =A(%. 26D. E/ *c)0 %)-* % &e" 0$ ce 2, %#e %% )*/e*% -' / B-()%,. U*$e"" -%#e(!)"e 0(-5)+e+4 / B-()%, c-//e*ce" % %#e .e -' e).#%ee* ,e (".= Sec. 2. A(%)c$e" 26E *+ 26G -' %#e " /e C-+e (e #e(e2, (e0e $e+. Sec. 6. A(%)c$e 268 -' %#e " /e C-+e )" $"- #e(e2, /e*+e+ %- (e + " '-$$-!"@ =A(%. 268. E/ *c)0 %)-* "# $$ %e(/)* %e 0 (e*% $ 1%#-()%, -5e( %#e 0e("-* *+ 0(-0e(%, -' %#e c#)$+ !#- "# $$ %#e* 2e I1 $)')e+ *+ (e"0-*")2$e '-( $$ c%" -' c)5)$ $)'e4 " 5e %#e e;ce0%)-*" e"% 2$)"#e+ 2, e;)"%)*. $ !" )* "0ec) $ c "e". =C-*%( c%)*. / (() .e "# $$ (eI1)(e 0 (e*% $ c-*"e*% 1*%)$ %#e .e -' %!e*%,<-*e. =N-%#)*. )* %#)" C-+e "# $$ 2e c-*"%(1e+ %- +e(-. %e '(-/ %#e +1%, -( (e"0-*")2)$)%, -' 0 (e*%" *+ .1 (+) *" '-( c#)$+(e* *+ ! (+" 2e$-! %!e*%,<-*e ,e (" -' .e /e*%)-*e+ )* %#e "ec-*+ *+ %#)(+ 0 ( .( 0#" -' A(%)c$e 2170 -' %#e C)5)$ C-+e.= Sec. D. U0-* %#e e''ec%)5)%, -' %#)" Ac%4 e;)"%)*. !)$$"4 2eI1e"%"4 +-* %)-*"4 .( *%"4 )*"1( *ce 0-$)c)e" *+ ")/)$ ( )*"%(1/e*%" c-*% )*)*. (e'e(e*ce" *+ 0(-5)")-*" ' 5-( 2$e %/)*-(" !)$$ *-% (e%(- c% %- %#e)( 0(eB1+)ce. Sec. E. T#)" Ac% "# $$ % &e e''ec% 10-* c-/0$e%)-* -' )%" 012$)c %)-* )* % $e "% %!- A2C *e!"0 0e(" -' .e*e( $ c)(c1$ %)-*. Approved= Dece/2e( 164 1H7H ,mancipation is the e$tinguishments o parental authority. 4t ta(es place at the age o 1@. The problem with ).#. !o. 1@.A, being a piece meal amendment, it does not ta(e care o all re erences in the Civil Code with re erence to the age o ma&ority. -ne de ect o ).#. !o. 1@.A is that it restores the distinction between per ect and imper ect emancipation. The Family Code removed the distinction which )# 1@.A restored. Thus, although 1@ is the age o emancipation6 1. =ersons between 1@ to 21 still need parental consent or marriage. 2. =arents or guardians are liable or the *uasi/delicts o persons who are already 1@ years old under #rticle 21@. until he reaches the age o 21.

Art. &*/0. The obligation imposed by article 21?1 is demandable not only or oneCs own acts or omissions, but also or those o persons or whom one is responsible. The ather and, in case o his death or incapacity, the mother, are responsible or the damages caused by the minor children who live in their company.

#ccording to =ro essor 9alane, this is cra3y. The basis or vicarious liability is parental authority. +ince parents and guardians no longer e$ercise parental authority, they should no longer be made liable. This is un&ust because the parents are no longer in a position to prevent their emancipated children rom acting responsibility without power. :2 o #rticle 21@. has been repealed by #rticle 221 o the Family Code.

VI. Absen"e
#bsence is that special legal status o one who is not in his domicile, his whereabouts being un(nown and it being uncertain whether he is dead or alive. Example: When 5acson went to the U+, 5acson was not absent since his whereabouts were (nown. +tages o #bsence 7#ccording to +eriousness8 1. Temporar" or Provisional 7#rticles 3@1 3@38 Art. 381. /hen a person disappears from his domicile% his whereabouts being unknown% and without leaving an agent to administer his propert"% the judge% at the instance of an interested part"% a relative% or a friend% ma" appoint a person to represent him in all that ma" be necessar". This same rule shall be observed when under similar circumstances the power conferred b" the absentee has e,pired. Art. 382. The appointment referred to in the preceding article having been made% the judge shall take the necessar" measures to safeguard the rights and interests of the absentee and shall specif" the powers% obligations and remuneration of his representative% regulating them% according to the circumstances% b" the rules concerning guardians. Art. 383. +n the appointment of a representative% the spouse present shall be preferred when there is no legal separation. +f the absentee left no spouse% or if the spouse present is a minor% an" competent person ma" be appointed b" the court. )e*uisites or =rovisional #bsence 1. #bsence or an appreciable period which depends upon the circumstances 2. 4mmediate necessity or his representation in some speci ic urgent matter 3. #bsentee le t no agent or the agency has e$pired.

2uardians are liable or damages caused by the minors or incapacitated persons who are under their authority and live in their company.

Art. &&*. =arents and other persons e$ercising parental authority shall be civilly liable or the in&uries and damages caused by the acts or omissions o their unemancipated children living

in their company and under their parental authority sub&ect to the appropriate de enses provided by law.

The declaration o speci ic act.

provisional absence 7must go to court8 is limited to a

2. 1ormal or Declared 7#rticles 3@; 3@A8 Art. 384. Two "ears having elapsed without an" news about the absentee or since the receipt of the last news% and five "ears in case the absentee has left a person in charge of the administration of his propert"% his absence ma" be declared. Art. 385. The following ma" ask for the declaration of absence* 3'5 The spouse present2 345 The heirs instituted in a will% who ma" present an authentic cop" of the same2 365 The relatives who ma" succeed b" the law of intestac"2 3;5 Those who ma" have over the propert" of the absentee some right subordinated to the condition of his death. Art. 386. The judicial declaration of absence shall not take effect until si, months after its publication in a newspaper of general circulation. Art. 387. An administrator of the absentee9s propert" shall be appointed in accordance with article 6B6. Art. 388. The wife who is appointed as an administratri, of the husband9s propert" cannot alienate or encumber the husband9s propert"% or that of the conjugal partnership% without judicial authorit". cases* Art. 389. The administration shall cease in an" of the following

3'5 /hen the absentee appears personall" or b" means of an agent2 345 /hen the death of the absentee is proved and his testate or intestate heirs appear2 365 /hen a third person appears% showing b" a proper document that he has ac-uired the absentee9s propert" b" purchase or other title. +n these cases the administrator shall cease in the performance of his office% and the propert" shall be at the disposal of those who ma" have a right thereto. =eriods 1. 2 years i he did not leave an agent 2. 0 years i he le t an agent Computation o =eriod a. 4 no news, the period must be computed rom the date o disappearance. b. 4 there is news, the period must be computed rom the last time the absentee was re erred to in the news 7not receipt o last news8

For e$ample, N in 1AA1 goes on a world tour. -n >arch 1, N poses or a picture and sends a postcard. This is received by D on +eptember 1. N is not heard rom again. #ccording to =ro essor 9alane, the disappearance should be counted rom >arch 1 and not +eptember 1. Counting rom 7eptember ' ;ust doesnt make sense< The purpose o the declaration o absence is or the court to have someone to administer the property o the absentee #rticle 3@;. 4 the absentee le t no property to administer, then one cannot resort to a declaration o absence. For purposes o re/marriage, a declaration o absence is not proper. 4n this case, what is re*uired is a summary proceeding or presumptive death.

3. Presumptive Death a. ,r+inar! &resu pti(e Deat" 7#rticle 3A.8

Art. 390. After an absence of seven "ears% it being unknown whether or not the absentee still lives% he shall be presumed dead for all purposes% e,cept for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten "ears. +f he disappeared after the age of sevent".five "ears% an absence of five "ears shall be sufficient in order that his succession ma" be opened. 1. 4 absentee is ?0 or below ? years or all purposes e$cept succession 1. years / or succession 0 years or all purposes pti(e Deat" 7#rticle 3A18

2. 4 absentee is over ?0 years old

b. -uali.ie+ &resu

Art. 391. The following shall be presumed dead for all purposes% including the division of the estate among the heirs* 3'5 A person on board a vessel lost during a sea vo"age% or an aeroplane which is missing% who has not been heard of for four "ears since the loss of the vessel or aeroplane2

345 A person in the armed forces who has taken part in war% and has been missing for four "ears2 365 A person who has been in danger of death under other circumstances and his e,istence has not been known for four "ears. =erson on board a vessel lost during a sea voyage, missing airplane , person in the armed orces who has ta(en part in war, a person who has been in danger o death under other circumstances and his e$istence is not (nown. General )ule* ; years or all purposes Exception: 2 years or purposes o remarriage 7#rticle ;1, Family Code8

Art. 41. A marriage contracted b" an" person during subsistence of a previous marriage shall be null and void% unless before the celebration of the subse-uent marriage% the prior spouse had been absent for four consecutive "ears and the spouse present has a well.founded belief that the absent spouse was alread" dead. +n case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 6C' of the Civil Code% an absence of onl" two "ears shall be sufficient. ?or the purpose of contracting the subse-uent marriage under the preceding paragraph the spouse present must institute a summar" proceeding as provided in this Code for the declaration of presumptive death of the absentee% without prejudice to the effect of reappearance of the absent spouse. When can you as( or a decree o presumptive death remarriage% 1. ; years a ter disappearance 2. 2 years i the circumstances all under #rticle 3A1 Under these rules on presumptive death, there is no need or a court decree. The mere running o the period raises the presumption o death. Fowever, or purposes o remarriage, a summary proceeding is re*uired under #rticle ;1 o the Family Code. -therwise, the subse*uent marriage is void. 4n the case o Eastern +$ipping vs. Lucas, the +upreme Court did not apply #rticle 3A1. The +upreme Court said that #rticle 3A1 is a rebuttable presumption. 9eing a presumption, #rticle 3A1 is applied only i there is no evidence. 4n this case, the +upreme Court had enough evidence to rule that the seaman was really dead. or purposes o

VII. Funerals
Art. 305. The dut" and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support% under article 4C;. +n case of descendants of the same degree% or of brothers and sisters% the oldest shall be preferred. +n case of ascendants% the paternal shall have a better right. The order given in #rticle 3.0 as to who has the right to ma(e uneral arrangements < ollows the order or support under #rticle 1AA o the Family Code.

Art. *22. Whenever two or more persons are obliged to give support, the liability shall devolve upon the ollowing persons in the order herein provided6 718 The spouse" 728 The descendants in the nearest degree" 738 The ascendants in the nearest degree" and 7;8 The brothers and sisters.

Art. 306. deceased.

8ver" funeral shall be in keeping with the social position of the

Art. 307. The funeral shall be in accordance with the e,pressed wishes of the deceased. +n the absence of such e,pression% his religious beliefs or affiliation shall determine the funeral rites. +n case of doubt% the form of the funeral shall be decided upon b" the person obliged to make arrangements for the same% after consulting the other members of the famil". Art. 308. 1o human remains shall be retained% interred% disposed of or e,humed without the consent of the persons mentioned in articles 4C; and 6D(. Art. 309. An" person who shows disrespect to the dead% or wrongfull" interferes with a funeral shall be liable to the famil" of the deceased for damages% material and moral. Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the funeral e,penses% and shall be chargeable to the conjugal partnership propert"% if the deceased is one of the spouses.

VIII. C$%$l Reg$s#r9


The Civil )egistry is the repository o relevant acts o a person 7birth, adoption, nationali3ation, marriage, death, etc.8

Art. 407. Acts% events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. #nything which a ects the civil status o )egister. (Read also Article 1! o" PD '0) ) persons shall be recorded in the Civil

Art. ;DB. The following shall be entered in the civil register* 3'5 Firths2 345 marriages2 365 deaths2 3;5 legal separations2 3(5 annulments of marriage2 3@5 judgments declaring marriages void from the beginning2 3A5 legitimations2 3B5 adoptions2 3C5 acknowledgments of natural children2 3'D5 naturali$ation2 3''5 loss% or 3'45 recover" of citi$enship2 3'65 civil interdiction2 3';5 judicial determination of filiation2 3'(5 voluntar" emancipation of a minor2 and 3'@5 changes of name.

#rt. ?. ,on@disclosure o" -irt$ Records. / The records o a personCs birth shall be (ept strictly con idential and no in ormation relating thereto shall be issued e$cept on the re*uest o any o the ollowing6 718 The person himsel , or any person authori3ed by him" 728 Fis spouse, his parent or parents, his direct descendants, or the guardian or institution legally in/charge o him i he is a minor" 738 The court or proper public o icial whenever absolutely necessary in administrative, &udicial or other o icial proceedings to determine the identity o the childCs parents or other circumstances surrounding his birth" and 7;8 4n case o the personCs death, the nearest o (in. #ny person violating the prohibition shall su er the penalty o imprisonment o at least two months or a ine in an amount not e$ceeding ive hundred pesos, or both, in the discretion o the court.

Art. 409. +n cases of legal separation% adoption% naturali$ation and other judicial orders mentioned in the preceding article% it shall be the dut" of the clerk of the court which issued the decree to ascertain whether the same has been registered% and if this has not been done% to send a cop" of said decree to the civil registr" of the cit" or municipalit" where the court is functioning. Art. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be pri a .acie evidence of the facts therein contained. =ublic documents shall be presumed to be accurate. Under #rticle ? o =' 1.3, public documents are not accessible to everybody. Correlate #rticle ;1. with #rticle 10 o )# @002 7The 'omestic #doption #ct8.

Art. 411. 8ver" civil registrar shall be civill" responsible for an" unauthori$ed alteration made in an" civil register% to an" person suffering damage thereb". 7owever% the civil registrar ma" e,empt himself from such liabilit" if he proves that he has taken ever" reasonable precaution to prevent the unlawful alteration. Art. 412. 1o entr" in a civil register shall be changed or corrected% without a judicial order. ,ntries in the civil register can only be corrected by a &udicial proceeding. Without the &udicial proceeding, the person would be guilty o alsi ication o public documents and possibly other crimes regarding the civil status o persons 7i.e., simulation o birth8 -riginally, #rticle ;12 could only be resorted to i the error was merely clerical. 4n -arreto vs. Local ;ivil Registrar, the +upreme Court de ined a clerical error as one which is visible to the eyes or obvious to the understanding. 4n this case, the alleged error being the gender o the person, the alleged error could not be determined by a re erence to the record. 4n recent years, the +upreme Court has ruled that a petition or correction o entry under #rticle ;12 and )ule 1.@ can be availed o to correct the ollowing errors6 1. Clerical 2. +ubstantial 4 the error is clerical, a summary proceeding is enough. 4 the error is substantial, an adversary proceeding with notice to all parties is necessary.

+ec. 10. ;on"idential ,ature o" Proceedings and Records. #ll hearings in adoption cases shall be con idential and shall not be open to the public. #ll records, boo(s, and papers relating to the adoption cases in the iles o the court, the 'epartment, or any other agency or institution participating in the adoption proceedings shall be (ept strictly con idential. 4 the court inds that the disclosure o the in ormation to a third person is necessary or purposes connected with or arising out o the adoption and will be or the best interest o the adoptee, the court may merit the necessary in ormation to be released, restricting the purposes or which it may be used.

Art. 413. All other matters pertaining to the registration of civil status shall be governed b" special laws.

FA*IL+ RELATIONS I. *arr$age

Art. 1. :arriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and famil" life. +t is the foundation of the famil" and an inviolable social institution whose nature% conse-uences% and incidents are governed b" law and not subject to stipulation% e,cept that marriage settlements ma" fi, the propert" relations during the marriage within the limits provided b" this Code. >arriage is a contract. 4t is a contract and much more. 4t is a contract o permanent union between a man and a woman. # contract o marriage unli(e other contracts con ers status. The primordial purpose o marriage is the establishment o amily li e. 2enerally in contracts, the parties are ree to enter into contractual stipulations. Fowever, in a marriage contract parties are generally not ree to enter into contractual stipulations. #ll the conse*uences o marriage are determined by law. The only area in which the parties may stipulate is with regard to property relations as long as these stipulations are not contrary to law. 4n act, the parties are not limited to the 3 ma&or regimes in the Family Code. 1o marriage shall be valid% unless these essential re-uisites are

Art. 2. present* 3'5

!egal capacit" of the contracting parties who must be a male and a female2 and

345 Consent freel" given in the presence of the solemni$ing officer. Art. 3. The formal re-uisites of marriage are* 3'5 Authorit" of the solemni$ing officer2 345 A valid marriage license e,cept in the cases provided for in Chapter 4 of this Title2 and 365 A marriage ceremon" which takes place with the appearance of the contracting parties before the solemni$ing officer and their personal declaration that the" take each other as husband and wife in the presence of not less than two witnesses of legal age.

Art. 4. The absence of an" of the essential or formal re-uisites shall render the marriage void a' initio% e,cept as stated in Article 6( 345. A defect in an" of the essential re-uisites shall not affect the validit" of the marriage but the part" or parties responsible for the irregularit" shall be civill"% criminall" and administrativel" liable. 2 Einds o ,lements 1. 8ssential

a. 5egal capacity 7included in legal capacity is the di erence in se$8 b. Consent 2. ?ormal a. #uthority o the solemni3ing - icer b. Oalid marriage license c. >arriage ceremony 3 terms 1. Absence General )ule* The absence o either an essential or ormal re*uisite ma(es the marriage void. Exceptions: a. Article 35$ para/rap" 2 7party believes in good solemni3ing o icer has authority8 Art. 35. beginning* 345 aith that the

The following marriages shall be void from the

Those solemni$ed b" an" person not legall" authori$ed to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemni$ing officer had the legal authorit" to do so2 pte+ .ro arria/e license 7#rticles 2?, 2@, 31, 32,

b. 0arria/es exe 33, 3;8

Art. 27. +n case either or both of the contracting parties are at the point of death% the marriage ma" be solemni$ed without necessit" of a marriage license and shall remain valid even if the ailing part" subse-uentl" survives. Art. 28. +f the residence of either part" is so located that there is no means of transportation to enable such part" to appear personall" before the local civil registrar% the marriage ma" be solemni$ed without necessit" of a marriage license. Art. 31. A marriage in articulo ortis between passengers or crew members ma" also be solemni$ed b" a ship captain or b" an airplane pilot not onl" while the ship is at sea or the plane is in flight% but also during stopovers at ports of call. Art. 32. A militar" commander of a unit% who is a commissioned officer% shall likewise have authorit" to solemni$e marriages in articulo mortis between persons within the $one of militar" operation% whether members of the armed forces or civilians. Art. 33. :arriages among :uslims or among members of the ethnic cultural communities ma" be performed validl" without the

necessit" of marriage license% provided the" are solemni$ed in accordance with their customs% rites or practices. Art. 34. 1o license shall be necessar" for the marriage of a man and a woman who have lived together as husband and wife for at least five "ears and without an" legal impediment to marr" each other. The contracting parties shall state the foregoing facts in an affidavit before an" person authori$ed b" law to administer oaths. The solemni$ing officer shall also state under oath that he ascertained the -ualifications of the contracting parties are found no legal impediment to the marriage. 2. Defect 'e ect occurs in essential re*uisites alone. Fairly well/de ined since there are many speci ic articles. E..ect: >arriage is voidable 4rregularity re ers to ormal re*uisites alone !o enumeration as to irregularity unli(e de ect E..ects: a. Oalid marriage b. =arty responsible or irregularity may be held liable A. Difference in >e, 7#rticles 2718, ; :1, 3A8 Art. 2 112. 1o marriage shall be valid% unless these essential re-uisites are present* 3'5 !egal capacit" of the contracting parties who must be a male and a female2 'i erence in se$ is e$plicitly re*uired or the irst time. 4t was necessary to ma(e this e$plicit since some &urisdictions allow same se$ marriages.

3. +rregularit"

Art. 4. The absence of an" of the essential or formal re-uisites shall render the marriage void a' initio$ e,cept as stated in Article 6( 345. The absence o this re*uisite ma(es the marriage void.

Art. 39. The action or defense for the declaration of absolute nullit" shall not prescribe. The period to have the marriage declared void is imprescriptible, the element being essential.

F. >ome ?orm of Ceremon" 7#rticles 3738, ; :1, 1, @8 Art. 3. The formal re-uisites of marriage are*

365 A marriage ceremon" which takes place with the appearance of the contracting parties before the solemni$ing officer and their personal declaration that the" take each other as husband and wife in the presence of not less than two witnesses of legal age. Art. 4. The absence of an" of the essential or formal re-uisites shall render the marriage void a' initio% e,cept as stated in Article 6( 345. Art. 6. 1o prescribed form or religious rite for the solemni$ation of the marriage is re-uired. +t shall be necessar"% however% for the contracting parties to appear personall" before the solemni$ing officer and declare in the presence of not less than two witnesses of legal age that the" take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed b" the contracting parties and their witnesses and attested b" the solemni$ing officer. +n case of a marriage in articulo mortis% when the part" at the point of death is unable to sign the marriage certificate% it shall be sufficient for one of the witnesses to the marriage to write the name of said part"% which fact shall be attested b" the solemni$ing officer. The ollowing are the barest minimum re*uired6 1. =ersonal appearance o parties be ore the solemni3ing o icer 2. 'eclaration that they ta(e each other as husband and wi e 7mani estation o intent8 The law does not re*uire a speci ic ceremony neither does it re*uire speci ic words or symbols. >arriages by pro$y are !-T #55-W,' since the contracting parties must personally appear be ore the solemni3ing o icer. The intent 7their declaration that they each other as husband and wi e8 may be mani ested in any orm 7i.e.! words, gestures, etc.8. 4n the case o 9artine vs. 7an! the intent was mani ested in writing. +ome commentaries say that the 2 witnesses must be o legal age. -thers say they need not be o legal age. To be sa e, the witnesses should be o legal age.

Art. 8. The marriage shall be solemni$ed publicl" in the chambers of the judge or in open court% in the church% chapel or temple% or in the office the consul.general% consul or vice.consul% as the case ma" be% and not elsewhere% e,cept in cases of marriages contracted on the point of death or in remote places in accordance with Article 4C of this Code% or where both of the parties re-uest the solemni$ing officer in writing in

Art. &2. 4n the cases provided or in the two preceding articles, the solemni3ing o icer shall state in an a idavit e$ecuted be ore the local civil registrar or any other person legally authori3ed to administer oaths that the marriage was per ormed in articulo mortis or that the residence o either party, speci ying the barrio or barangay, is so located that there is no means o transportation to enable such party to appear personally be ore the local civil registrar and that the o icer too( the necessary steps to ascertain the ages and relationship o the contracting parties and the absence o legal impediment to the marriage.

which case the marriage ma" be solemni$ed at a house or place designated b" them in a sworn statement to that effect. C. !egal Capacit" 7#rticle 27188 Art. 2. 1o marriage shall be valid% unless these essential re-uisites are present* 3'5 !egal capacit" of the contracting parties who must be a male and a female2 '. A/e 7#rticles 0, 30718, 3A, ;0718, 3?7188 Art. 5. An" male or female of the age of eighteen "ears or upwards not under an" of the impediments mentioned in Articles 6A and 6B% ma" contract marriage. For both male and emale, the minimum age is 1@. The following marriages shall be void from the

Art. 35. beginning*

3'5 Those contracted b" an" part" below eighteen "ears of age even with the consent of parents or guardians2 4 any contracting party is below 1@, the marriage is void.

Art. 39. The action or defense for the declaration of absolute nullit" shall not prescribe. The period to have the marriage declared void shall not prescribe.

Art. 45. A marriage ma" be annulled for an" of the following causes% e,isting at the time of the marriage* 3'5 That the part" in whose behalf it is sought to have the marriage annulled was eighteen "ears of age or over but below twent".one% and the marriage was solemni$ed without the consent of the parents% guardian or person having substitute parental authorit" over the part"% in that order% unless after attaining the age of twent".one% such part" freel" cohabited with the other and both lived together as husband and wife2 Art. 47. The action for annulment of marriage must be filed b" the following persons and within the periods indicated herein* 3'5 ?or causes mentioned in number ' of Article ;( b" the part" whose parent or guardian did not give his or her consent% within five "ears after attaining the age of twent".one% or b" the parent or guardian or person having legal charge of the minor% at an" time before such part" has reached the age of twent".one2

'espite ).#. !o. 1@.A, parental consent is re*uired or a contracting party who has not yet reached 21. #rticle ;?718 tells us who can set aside the marriage which is voidable or lac( o the necessary parental consent. The parent who did not give he necessary parental consent until such child reaches the age o 21. Fowever in #rticle ;0718, rati ication o the marriage is possible i the party who needed parental consent cohabits with the other spouse. )ati ication may only occur a ter such party reaches 21. -nce the marriage has been rati ied, the parents cannot annul under this ground. 4 the parents iled the annulment be ore their child reached 21, but upon reaching 21, their child cohabits, the action to annul the marriage continues. What would be determinative in such a situation is the time o iling. The capacitated person or his parents may not have the marriage annulled or lac( o parental consent.

4. Relations"ip 7#rticles 3?, 3@ 71/@8, 3A8 Art. 37. :arriages between the following are incestuous and void from the beginning% whether relationship between the parties be legitimate or illegitimate* 3'5 Fetween ascendants and descendants of an" degree2 and 345 Fetween brothers and sisters% whether of the full or half blood. 4ncestuous )elationship 1. 4n the direct line, in any degree no limit 2. 2 degree collaterals 7brothers B sisters8 whether ull or hal blood, legitimate or illegitimate Art. 38. The following marriages shall be void from the beginning for reasons of public polic"* 3'5 Fetween collateral blood relatives whether legitimate or illegitimate% up to the fourth civil degree2 345 Fetween step.parents and step.children2 365 Fetween parents.in.law and children.in.law2 3;5 Fetween the adopting parent and the adopted child2 3(5 Fetween the surviving spouse of the adopting parent and the adopted child2 3@5 Fetween the surviving spouse of the adopted child and the adopter2 3A5 Fetween an adopted child and a legitimate child of the adopter2 3B5 Fetween adopted children of the same adopter2
nd

#rticle 3@ 718 re ers to uncles, aunts and irst cousins #rticle 3@ 738 is a new provision marriage between parents/in/law and children/in/law #rticles 3@ 708 and 3@ 718 are provided or to guard against scandal marriage between the surviving spouse o the adopting parent and the adopted child" marriage between the surviving spouse o the adopted child and adopter. #rticle 3@ 7@8 prohibits the marriage between adopted children o the same adopter while #rt. 3@ 7?8 prohibits the marriage between an adopted child and a legitimate child o the adopted. What is not prohibited are the ollowing6 1. >arriage between an adopted child and an illegitimate child o adopter. 2. >arriage between stepchildren the

Art. 39. The action or defense for the declaration of absolute nullit" shall not prescribe. The period to have the marriage declared void shall not prescribe.

6. &rior 0arria/e 7#rticles 30 7;8, 30 718, ;., ;1, ;2, ;3, ;;, 02, 03 B 3A8 The ollowing are marriages which are de ective because o marriage6 a prior

a. Figamous or pol"gamous marriages not falling under Article ;' Art. 35. The following marriages shall be void from the beginning* 3;5 Those bigamous or pol"gamous marriages not falling under Article ;'2 4 the marriage alls under #rticle ;1, the marriage is valid. Art. 41. A marriage contracted b" an" person during subsistence of a previous marriage shall be null and void% unless before the celebration of the subse-uent marriage% the prior spouse had been absent for four consecutive "ears and the spouse present has a well.founded belief that the absent spouse was alread" dead. +n case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 6C' of the Civil Code% an absence of onl" two "ears shall be sufficient. ?or the purpose of contracting the subse-uent marriage under the preceding paragraph the spouse present must institute a summar" proceeding as provided in this Code for the declaration of presumptive death of the absentee% without prejudice to the effect of reappearance of the absent spouse. Art. 42. The subse-uent marriage referred to in the preceding Article shall be automaticall" terminated b" the recording of the affidavit of reappearance of the absent spouse%

unless there is a judgment annulling the previous marriage or declaring it void a' initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registr" of the residence of the parties to the subse-uent marriage at the instance of an" interested person% with due notice to the spouses of the subse-uent marriage and without prejudice to the fact of reappearance being judiciall" determined in case such fact is disputed. )e*uisites o a marriage under #rticle ;16 1. #bsence o a prior spouse or at least ; consecutive years or 2 consecutive years i the circumstances all under #rt. 3A1. 2. +pouse presents a well/ ounded belie that the absent spouse was already dead 3. 4nstitution by the present spouse o a summary proceeding or the declaration o presumptive death. )ules or marriages under #rticle ;1 1. The marriage is valid until it is terminated under #rticle ;2 7,ote: The term 2terminated and not 2annulled is used nd sinc e the 2 marriage is not a de ective but a regular marriage8 2. General )ule* The termination o the 2 marriage ta(es e ect upon the recording o the a idavit o reappearance o the absent spouse. 3. Exception: There is no termination o the 2 marriage i there st is a &udgment o annulment or nullity with regard to the 1 marriage. #ny interested party may case the recording o the a idavit o reappearance 7i.e., present spouse, absent spouse, subse*uent spouse, children8 The a idavit o reappearance should contain the circumstances o appearance acts and
nd nd

The a idavit o reappearance must be recorded in the civil registry o the residence o the parties to the subse*uent marriage. E..ecti(eness: The a idavit o reappearance is su icient in itsel unless it is &udicially challenged.

Art. 43. The termination of the subse-uent marriage referred to in the preceding Article shall produce the following effects* 3'5 The children of the subse-uent marriage conceived prior to its termination shall be considered legitimate2 345 The absolute communit" of propert" or the conjugal partnership% as the case ma" be% shall be dissolved and li-uidated% but if either spouse contracted said marriage in bad faith% his or her share of the net profits of the communit" propert" or conjugal partnership

propert" shall be forfeited in favor of the common children or% if there are none% the children of the guilt" spouse b" a previous marriage or in default of children% the innocent spouse2 365 Donations b" reason of marriage shall remain valid% e,cept that if the donee contracted the marriage in bad faith% such donations made to said donee are revoked b" operation of law2 3;5 The innocent spouse ma" revoke the designation of the other spouse who acted in bad faith as beneficiar" in an" insurance polic"% even if such designation be stipulated as irrevocable2 and 3(5 The spouse who contracted the subse-uent marriage in bad faith shall be dis-ualified to inherit from the innocent spouse b" testate and intestate succession. E..ects: 1. ,ssentially, 1 marriage continues. 2. #ccording to #rticle ;3 708, the spouse who contracted the subse*uent marriage in bad aith shall be dis*uali ied to inherit rom the innocent spouse testate and intestate succession. There ore, the implication sis that i the parties are in good #aith, they are still heirs o# each other. &ro#essor %alane doesnt agree with this. #ccording to =ro essor 9alane, nd i the 2 marriage is terminated, it should ollow that the parties to the second marriage lose their right to be heirs o each other. Art. 44. +f both spouses of the subse-uent marriage acted in bad faith% said marriage shall be void a' initio and all donations b" reason of marriage and testamentar" dispositions made b" one in favor of the other are revoked b" operation of law. b. <oid under Article ;D Art. 40. The absolute nullit" of a previous marriage ma" be invoked for purposes of remarriage on the basis solel" of a final judgment declaring such previous marriage void. ,ven i the 1 marriage is void, there is still a need or a summary nd proceeding declaring such marriage void a5 initio. Thus, i a 2 marriage is contracted without irst securing the declaration o st nd nullity with regard to the 1 marriage, then the 2 marriage is also void. =lus, bigamy has been committed.
st st

c. <oid under Article (6 3in relation to Article (45 Art. 35. The following marriages shall be void from the beginning*

3@5 Those subse-uent marriages that are void under Article (6. Art. 52. The judgment of annulment or of absolute nullit" of the marriage% the partition and distribution of the properties of the spouses and the deliver" of the children9s presumptive legitimes shall be recorded in the appropriate civil registr" and registries of propert"2 otherwise% the same shall not affect third persons. Art. 53. 8ither of the former spouses ma" marr" again after compliance with the re-uirements of the immediatel" preceding Article2 otherwise% the subse-uent marriage shall be null and void. 'espite declaration o annulment or nullity o the marriage, be ore the ormer spouses may contract a subse*uent marriage, the ollowing must be recorded in the appropriate civil registry and registries o property6 1. Iudgment o annulment or o absolute nullity 2. =artition and distribution o the properties o the spouses 3. :elivery o# the childrens presumptive legitime 4 the preceding tas(s are not accomplished, then any subse*uent marriage is void.

Art. 39. The action or defense for the declaration of absolute nullit" shall not prescribe. ;. *ri The period to have the marriage declared void shall not prescribe.

e 7#rticle 3@ 7A88

Art. 38. The following marriages shall be void from the beginning for reasons of public polic"* 3C5 Fetween parties where one% with the intention to marr" the other% killed that other person9s spouse% or his or her own spouse.

2 changes rom #rticle @. 718 o the Civil Code 1. 4ntention or (illing must be in order to marry the surviving spouse 2. !o conviction is re*uired.

#rticle 3@ 7A8 e$cludes (illing thru negligence since there is no intent to (ill. The di iculty in #rticle 3@ 7A8 is proving that the reason or (illing is to enable the (iller and the surviving spouse to marry each other.

(. &"!sical 3ncapacit! 7#rticles ;0 708, ;? 7088 Art. 45. A marriage ma" be annulled for an" of the following causes% e,isting at the time of the marriage* 3(5 That either part" was ph"sicall" incapable of consummating the marriage with the other% and such incapacit" continues and appears to be incurable2 or Art. 47. The action for annulment of marriage must be filed b" the following persons and within the periods indicated herein* 3(5 ?or causes mentioned in number ( and @ of Article ;(% b" the injured part"% within five "ears after the marriage. These articles re er to impotence and not sterility. >en and women are capable o impotence. For men, there is impotence when they cannot erect. For women, impotence occurs when penetration is not possible an anatomical disorder. For men, impotence may have physical or psychological causes. )e*uisites o #nnulment 'ue to 4mpotence 1. 4mpotence e$ists at the time o the celebration o the marriage 2. The impotence is permanent and incurable 7need medical opinion8 3. The impotence is un(nown to the other spouse. ;. The other spouse must also not be impotent. 4n some &urisdictions, there is a presumption that i a ter 3 years o marriage and it is ound that the woman is still a virgin and su ers no anatomical de ects, it is presumed that the man is impotent. There is no =hilippine case stating that this presumption also applies in the =hilippines. 7This is (nown as the Doctrine of Triennial Cohabitation8 What i the man is impotent only with regard to his wi e% There is no case yet. The action or annulment due to impotence must be iled by the in&ured party within 0 years a ter the marriage. $ marriage which is de#ective because o# a partys impotence cannot be rati ied. )ati ication means cohabitation with se$ual intercourse.

@. &s!c"olo/ical 3ncapacit! 7#rticle 318 Art. 36. A marriage contracted b" an" part" who% at the time of the celebration% was ps"chologicall" incapacitated to compl" with the essential marital obligations of marriage% shall likewise be void even if such incapacit" becomes manifest onl" after its solemni$ation. =sychological incapacity is not a substitute or divorce. The theory behind psychological incapacity is that one or both o the spouses cannot discharge one or more o the essential marital obligations 7#rticle 1@8. There must be an absolute incapability to do so.

'uring the 1 years o the e ectivity o the Family Code, many couples resorted to #rticle 31 as a convenient way to end their marriage. #s a result o these abuses, the +upreme Court became very strict in applying #rticle 31. =sychological incapacity must e$ist at the time the marriage is celebrated 7li(e impotence8. Fowever, psychological incapacity need not be mani ested at the time o the celebration o the marriage. This is the tric(y part. 4n +antos vs. ;A, the +upreme Court characteristics o psychological incapacity6 1. 2ravity 2. Iuridical antecedence 3. 4ncurability enumerated the ollowing

st

4n Repu5lic vs. ;A (9olina), the +upreme Court reiterated +antos vs. ;A. Furthermore, the +upreme Court laid down several guidelines6 1. The burden o proo to show the nullity o the marriage belongs to the plainti . #ny doubts should be resolved in avor o the e$istence and continuation o the marriage and against the dissolution and nullity. 2. The root cause o the psychological incapacity must be6 a. =sychological and not physical 7although psychological incapacity can be mani ested physically8 b. >edically or clinically identi ied c. #lleged in the complaint d. =roved su iciently by e$perts 7i.e. psychiatrists, psychologists8 e. Clearly e$plained in the decision 3. The incapacity must be proven to be e4isting 2at the celebration o# the marriage. the time o#

;. +uch incapacity must also be shown to be medically or clinically permanent or incurable. 0. +uch illness must be grave enough to bring about the disability o the party to assume the essential obligations o marriage 1. The essential marital obligations must be those embraced by #rticles 1. to ?1 o the Family Code as regards the husband and wi e, as well as #rticles 22., 221 and 220 o the same Code in regard to parents and their children. +uch non/complied marital obligations must also be stated in the petition, proven by evidence and included in the test o the decision. ?. 4nterpretations given by the !ational #ppellate >atrimonial Tribunal o the Catholic Church in the =hilippines, while not controlling or decisive, should be given great respect by our courts. @. The trial court must order the prosecuting attorney or iscal and the +olicitor 2eneral to appear as counsel or the +tate. The +olicitor >enerals role is to issue a certi#ication stating why he does or does not agree.

4n ;$i 9ing 7soi vs. ;A, the convergence o all the actors stated in the complaint amounted to psychological incapacity.

A. Disease 7#rticles ;0 718, ;? 7088 Art. 45. A marriage ma" be annulled for an" of the following causes% e,isting at the time of the marriage* 3@5 That either part" was afflicted with a se,uall".transmissible disease found to be serious and appears to be incurable.

Art. 47. The action for annulment of marriage must be filed b" the following persons and within the periods indicated herein* 3(5 ?or causes mentioned in number ( and @ of Article ;(% b" the injured part"% within five "ears after the marriage. )e*uisites or #nnulment due to disease 1. ,ither party is a licted with a se$ually transmissible disease 7+T'8 2. The +T' must e$ist at the time the marriage is celebrated 3. The +T' must be serious ;. The +T' must be apparently incurable. 0. The 7T: party not a##licted by 7T: must be ignorant o# the others a##liction ?&ro#essor %alanes opinion@ 1. The in;ured party must be #ree #rom 7T: ?&ro#essor %alanes opinion@ #ccording to =ro essor 9alane, #4'+ would all under #rticle ;0 718. #rticle ;0718 does not say that the only way to transmit the disease is through se$. =ro essor 9alane is not sure i it is re*uired that the a licted person should (now that he has +T'. The in;ured party must be ignorant o# the other partys a##liction. I# the in&ured party (new and the marriage too( place, then the in&ured party has no right to complain. The action to annul the marriage must ta(e place within 0 years rom the marriage. The Family Code does not state i such a marriage can be rati ied. &ro#essor %alane doesnt see why such a marriage cannot be rati#ied.

D. Consent '. 3nsanit! 7#rticles ;0728, ;?7288 Art. 45. A marriage ma" be annulled for an" of the following causes% e,isting at the time of the marriage* 345 That either part" was of unsound mind% unless such part" after coming to reason% freel" cohabited with the other as husband and wife2

Art. 47. The action for annulment of marriage must be filed b" the following persons and within the periods indicated herein* 345 ?or causes mentioned in number 4 of Article ;(% b" the same spouse% who had no knowledge of the other9s insanit"2 or b" an" relative or guardian or person having legal charge of the insane% at an" time before the death of either part"% or b" the insane spouse during a lucid interval or after regaining sanit"2 4nsanity is a legal and not a medical *uestion. -ne o the spouses must be insane at the time the marriage was celebrated. Fowever, =ro essor 9alane cannot imagine anyone marrying an insane person and not (nowing it. The ollowing are the prescriptive periods or iling6 1. #t any time be ore the death o either party With regard to the same spouse who had no (nowledge o the others sanity or by any relative, guardian or person having legal charge o the insane

2. 'uring a lucid interval or a ter regaining sanity with regard to the insane party. Aueries: 1. Up to what relatives 7degree8 can ile the action or annulment% 2. Fow long e$actly does the insane spouse have to ile or annulment during a lucid interval or recovery% )ati ication by the insane spouse is possible 7i.e.! during a lucid interval, the insane spouse cohabits8

4. )rau+ 7#rticles ;0 738, ;18 Art. 45. A marriage ma" be annulled for an" of the following causes% e,isting at the time of the marriage* 365 That the consent of either part" was obtained b" fraud% unless such part" afterwards% with full knowledge of the facts constituting the fraud% freel" cohabited with the other as husband and wife2 Art. 46. An" of the following circumstances shall constitute fraud referred to in 1umber 6 of the preceding Article* 3'5 1on.disclosure of a previous conviction b" final judgment of the other part" of a crime involving moral turpitude2 345 Concealment b" the wife of the fact that at the time of the marriage% she was pregnant b" a man other than her husband2

365 Concealment of se,uall" transmissible disease% regardless of its nature% e,isting at the time of the marriage2 or 3;5 Concealment of drug addiction% habitual alcoholism or homose,ualit" or lesbianism e,isting at the time of the marriage.

1o other misrepresentation or deceit as to character% health% rank% fortune or chastit" shall constitute such fraud as will give grounds for action for the annulment of marriage. Fraud here is not the raud ounding contracts and obligations. Fraud here has a very technical meaning #rticle ;1. #rticle ;1 is an ,NC5U+4O, 54+T. #rticles ;1 718 and 728 are clear. 4n #rticle ;1 738, the +T' need not be serious or incurable. #s long as the +T', e$isting at the time o marriage, is concealed, it constitutes raud. #rticle ;1 7;8, must the homose$ual be a practicing homose$ual or is such se$ual orientation enough under here% There is no &urisprudence yet. The in&ured party has 0 years rom the time the raud was discovered to ile or annulment. # marriage which is de ective due to raud may be rati ies. )ati ication occurs when the in&ured party reely cohabits with the other despite having ull (nowledge o the acts constituting raud. 4n -uccat vs. -uccat, the +upreme Court said that there was no concealment by the wi e o the act that she was pregnant with another mans child. There was no concealment since at the time o# marriage, th she was already in her 1 month. i+ation or un+ue in.luence 7#rticles ;0 7;8, ;? 7;88

6. Duress 4 .orce$ inti

Art. 45. A marriage ma" be annulled for an" of the following causes% e,isting at the time of the marriage* 3;5 That the consent of either part" was obtained b" force% intimidation or undue influence% unless the same having disappeared or ceased% such part" thereafter freel" cohabited with the other as husband and wife2 Art. 47. The action for annulment of marriage must be filed b" the following persons and within the periods indicated herein* 3;5 ?or causes mentioned in number ; of Article ;(% b" the injured part"% within five "ears from the time the force% intimidation or undue influence disappeared or ceased2 The in&ured party has 0 years rom the time the orce, intimidation or undue in luence disappeared or ceased to ile or annulment. )ati ication occurs when the orce, intimidation or undue in luence having disappeared or ceased, the in&ured party cohabits.

;. :istake as to +dentit" 7#rticles 30 708, 3A8 Art. 35. beginning* The following marriages shall be void from the

3(5 Those contracted through mistake of one contracting part" as to the identit" of the other2

Art. 39. The action or defense for the declaration of absolute nullit" shall not prescribe. # marriage where there is mista(e as to identity is a void marriage since consent is completely negated. >ista(e as to identity involves the substitution o the other party.

8. Authorit" of the >olemni$ing #fficer 7#rticles 3 718, ; 718, ?, 1., 31, 32, 30 7288 Art. 3. The formal re-uisites of marriage are* 3'5 Authorit" of the solemni$ing officer2 Art. 4. The absence of an" of the essential or formal re-uisites shall render the marriage void a' initio% e,cept as stated in Article 6( 345. Art. 7. :arriage ma" be solemni$ed b"* 3'5 An" incumbent member of the judiciar" within the court9s jurisdiction2 345 An" priest% rabbi% imam% or minister of an" church or religious sect dul" authori$ed b" his church or religious sect and registered with the civil registrar general% acting within the limits of the written authorit" granted b" his church or religious sect and provided that at least one of the contracting parties belongs to the solemni$ing officer9s church or religious sect2 365 An" ship captain or airplane chief onl" in the case mentioned in Article 6'2 3;5 An" militar" commander of a unit to which a chaplain is assigned% in the absence of the latter% during a militar" operation% likewise onl" in the cases mentioned in Article 642 3(5 An" consul.general% consul or vice.consul in the case provided in Article 'D. #rticle ?, enumerating those persons who may solemni3e a marriage, has been amended by the 5ocal 2overnment Code. !ow, municipal and city mayors have the authority to solemni3e a marriage. #rticle ?718, &ustices o the +upreme Court and Court o #ppeals can solemni3e marriages anywhere in the =hilippines. Iustices o the )egional Trial Courts and >unicipalH>etropolitanH>unicipal Circuit Trial Courts can only solemni3e marriages within their territorial &urisdiction.

Art. 10. :arriages between ?ilipino citi$ens abroad ma" be solemni$ed b" a consul.general% consul or vice.consul of the )epublic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemni$ing officer with regard to the celebration of marriage shall be performed b" said consular official.

Art. 31. A marriage in articulo mortis between passengers or crew members ma" also be solemni$ed b" a ship captain or b" an airplane pilot not onl" while the ship is at sea or the plane is in flight% but also during stopovers at ports of call. Art. 32. A militar" commander of a unit% who is a commissioned officer% shall likewise have authorit" to solemni$e marriages in articulo mortis between persons within the $one of militar" operation% whether members of the armed forces or civilians. Art. 35. The following marriages shall be void from the beginning* 345 Those solemni$ed b" an" person not legall" authori$ed to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemni$ing officer had the legal authorit" to do so2 #rticle 30 728, i one or both o the contracting parties believes in good aith that the solemni3ing o icer had authority to do so even i such person was not authori3ed, the marriage is not void but valid. 2ood aith in #rticle 30 728 re ers to a *uestion o act. For e$ample, the parties did not (now that the license o the priest had e$pired or that the &udge had retired. 4 the parties thought that =ing 5acson had the authority marry them, that is not goo aith. That is ignorance o the law. The same is also true i the parties believe that an )TC &udge o Kue3on City can marry them in Tawi/Tawi. That is an error o law.

?. :arriage !icense 7#rticles 3 728, ; 718, ; 738, 30 738, A 21Pre ers to the administrative re*uirementsQ, 2? 3;8 Art. 3. The formal re-uisites of marriage are* 345 A valid marriage license e,cept in the cases provided for in Chapter 4 of this Title2 Art. 4. The absence of an" of the essential or formal re-uisites shall render the marriage void a' initio% e,cept as stated in Article 6( 345. A defect in an" of the essential re-uisites shall not affect the validit" of the marriage but the part" or parties responsible for the irregularit" shall be civill"% criminall" and administrativel" liable. Art. 35. The following marriages shall be void from the beginning* 365 Those solemni$ed without license% e,cept those covered the preceding Chapter2 Art. 9. A marriage license shall be issued b" the local civil registrar of the cit" or municipalit" where either contracting part" habituall" resides% e,cept in marriages where no license is re-uired in accordance with Chapter 4 of this Title. Art. 10. :arriages between ?ilipino citi$ens abroad ma" be solemni$ed b" a consul.general% consul or vice.consul of the )epublic of

the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemni$ing officer with regard to the celebration of marriage shall be performed b" said consular official. Art. 11. /here a marriage license is re-uired% each of the contracting parties shall file separatel" a sworn application for such license with the proper local civil registrar which shall specif" the following* 3'5 ?ull name of the contracting part"2 345 Place of birth2 365 Age and date of birth2 3;5 Civil status2 3(5 +f previousl" married% how% when and where the previous marriage was dissolved or annulled2 3@5 Present residence and citi$enship2 3A5 Degree of relationship of the contracting parties2 3B5 ?ull name% residence and citi$enship of the father2 3C5 ?ull name% residence and citi$enship of the mother2 and 3'D5 ?ull name% residence and citi$enship of the guardian or person having charge% in case the contracting part" has neither father nor mother and is under the age of twent".one "ears.

The applicants% their parents or guardians shall not be re-uired to e,hibit their residence certificates in an" formalit" in connection with the securing of the marriage license. Art. '4. The local civil registrar% upon receiving such application% shall re-uire the presentation of the original birth certificates or% in default thereof% the baptismal certificates of the contracting parties or copies of such documents dul" attested b" the persons having custod" of the originals. These certificates or certified copies of the documents b" this Article need not be sworn to and shall be e,empt from the documentar" stamp ta,. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticit". +f either of the contracting parties is unable to produce his birth or baptismal certificate or a certified cop" of either because of the destruction or loss of the original or if it is shown b" an affidavit of such part" or of an" other person that such birth or baptismal certificate has not "et been received though the same has been re-uired of the person having custod" thereof at least fifteen da"s prior to the date of the application% such part" ma" furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or an" public official authori$ed to administer oaths. >uch instrument shall contain the sworn declaration of two witnesses of lawful age% setting forth the full name% residence and citi$enship of such contracting part" and of his or her parents% if known% and the place and date of birth of such part". The nearest of kin of the contracting parties shall be preferred as witnesses% or% in their default% persons of good reputation in the province or the localit".

The presentation of birth or baptismal certificate shall not be re-uired if the parents of the contracting parties appear personall" before the local civil registrar concerned and swear to the correctness of the lawful age of said parties% as stated in the application% or when the local civil registrar shall% b" merel" looking at the applicants upon their personall" appearing before him% be convinced that either or both of them have the re-uired age. Art. 13. +n case either of the contracting parties has been previousl" married% the applicant shall be re-uired to furnish% instead of the birth or baptismal certificate re-uired in the last preceding article% the death certificate of the deceased spouse or the judicial decree of the absolute divorce% or the judicial decree of annulment or declaration of nullit" of his or her previous marriage. +n case the death certificate cannot be secured% the part" shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. Art. 14. +n case either or both of the contracting parties% not having been emancipated b" a previous marriage% are between the ages of eighteen and twent".one% the" shall% in addition to the re-uirements of the preceding articles% e,hibit to the local civil registrar% the consent to their marriage of their father% mother% surviving parent or guardian% or persons having legal charge of them% in the order mentioned. >uch consent shall be manifested in writing b" the interested part"% who personall" appears before the proper local civil registrar% or in the form of an affidavit made in the presence of two witnesses and attested before an" official authori$ed b" law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license% and the affidavit% if one is e,ecuted instead% shall be attached to said applications. Art. 15. An" contracting part" between the age of twent".one and twent".five shall be obliged to ask their parents or guardian for advice upon the intended marriage. +f the" do not obtain such advice% or if it be unfavorable% the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement b" the contracting parties to the effect that such advice as been sought% together with the written advice given% if an"% shall be attached to the application for marriage license. >hould the parents or guardian refuse to give an" advice% this fact shall be stated in the sworn statement. Art. 16. +n the cases where parental consent or parental advice is needed% the part" or parties concerned shall% in addition to the re-uirements of the preceding articles% attach a certificate issued b" a priest% imam or minister authori$ed to solemni$e marriage under Article A of this Code or a marriage counsellor dul" accredited b" the proper government agenc" to the effect that the contracting parties have undergone marriage counselling. ?ailure to attach said certificates of marriage counselling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the

application. +ssuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validit" of the marriage. >hould onl" one of the contracting parties need parental consent or parental advice% the other part" must be present at the counselling referred to in the preceding paragraph. Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive da"s on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall re-uest all persons having knowledge of an" impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. Art. 18. +n case of an" impediment known to the local civil registrar or brought to his attention% he shall note down the particulars thereof and his findings thereon in the application for marriage license% but shall nonetheless issue said license after the completion of the period of publication% unless ordered otherwise b" a competent court at his own instance or that of an" interest part". 1o filing fee shall be charged for the petition nor a corresponding bond re-uired for the issuances of the order. Art. 19. The local civil registrar shall re-uire the pa"ment of the fees prescribed b" law or regulations before the issuance of the marriage license. 1o other sum shall be collected in the nature of a fee or ta, of an" kind for the issuance of said license. +t shall% however% be issued free of charge to indigent parties% that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established b" their affidavit% or b" their oath before the local civil registrar. Art. 20. The license shall be valid in an" part of the Philippines for a period of one hundred twent" da"s from the date of issue% and shall be deemed automaticall" cancelled at the e,piration of the said period if the contracting parties have not made use of it. The e,pir" date shall be stamped in bold characters on the face of ever" license issued. Art. 21. /hen either or both of the contracting parties are citi$ens of a foreign countr"% it shall be necessar" for them before a marriage license can be obtained% to submit a certificate of legal capacit" to contract marriage% issued b" their respective diplomatic or consular officials. >tateless persons or refugees from other countries shall% in lieu of the certificate of legal capacit" herein re-uired% submit an affidavit stating the circumstances showing such capacit" to contract marriage. General )ule* # marriage license is re*uired.

Exceptions: 1. 0arria/es in articulo mortis 7#rticles 2?, 31, 328 Art. 27. +n case either or both of the contracting parties are at the point of death% the marriage ma" be solemni$ed without necessit" of a marriage license and shall remain valid even if the ailing part" subse-uentl" survives. Art. 31. A marriage in articulo mortis between passengers or crew members ma" also be solemni$ed b" a ship captain or b" an airplane pilot not onl" while the ship is at sea or the plane is in flight% but also during stopovers at ports of call. Art. 32. A militar" commander of a unit% who is a commissioned officer% shall likewise have authorit" to solemni$e marriages in articulo mortis between persons within the $one of militar" operation% whether members of the armed forces or civilians. #rticles 31 and 32 are not distinct e$ceptional marriages but marriages in articulo mortis.

2. )esidence is located such that either part" has no means of transportation to enable such part" to appear before the Civil )egistrar 7#rticle 2@8 Art. 28. +f the residence of either part" is so located that there is no means of transportation to enable such part" to appear personall" before the local civil registrar% the marriage ma" be solemni$ed without necessit" of a marriage license. 3. :arriages among :uslims or among members of ethnic cultural communities as long as the" are solemni$ed in accordance with their customs 7#rticle 338 Art. 33. :arriages among :uslims or among members of the ethnic cultural communities ma" be performed validl" without the necessit" of marriage license% provided the" are solemni$ed in accordance with their customs% rites or practices. ,.7E: The >uslim Code governs i the contracting parties are both >uslims or i the male is >uslim. 4 only the emale is >uslim, then the Family Code governs. ;. Couples living together as husband and wife for at least ( "ears and the" must not have an" legal impediment to marr" each other 7#rticle 3;8 Art. 34. 1o license shall be necessar" for the marriage of a man and a woman who have lived together as husband and wife for at least five "ears and without an" legal impediment to marr" each other. The contracting parties shall state the foregoing facts in an

affidavit before an" person authori$ed b" law to administer oaths. The solemni$ing officer shall also state under oath that he ascertained the -ualifications of the contracting parties are found no legal impediment to the marriage. Art. 29. +n the cases provided for in the two preceding articles% the solemni$ing officer shall state in an affidavit e,ecuted before the local civil registrar or an" other person legall" authori$ed to administer oaths that the marriage was performed in articulo ortis or that the residence of either part"% specif"ing the barrio or baranga"% is so located that there is no means of transportation to enable such part" to appear personall" before the local civil registrar and that the officer took the necessar" steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage.

II. Effe"# of C7$l,ren

)efe"#$%e

*arr$ages

on

#7e

S#a#us

of

A. +f the marriage is voidable 7#rticle 0;8 Art. 54. Children conceived or born before the judgment of annulment or absolute nullit" of the marriage under Article 6@ has become final and e,ecutor" shall be considered legitimate. Children conceived or born of the subse-uent marriage under Article (6 shall likewise be legitimate. 5egitimate i conceived be ore inal &udgment 4llegitimate / i conceived a ter inal &udgment

F. +f the marriage is void General )ule* Children are illegitimate 7#rticle 1108 Art. 165. Children conceived and born outside a valid marriage are illegitimate% unless otherwise provided in this Code. Exceptions: 5egitimate i the marriage alls under6

1. Article 6@ =sychological incapacity Art. 36. A marriage contracted b" an" part" who% at the time of the celebration% was ps"chologicall" incapacitated to compl" with the essential marital obligations of marriage% shall likewise be void even if such incapacit" becomes manifest onl" after its solemni$ation. 2. Article (6 Children conceived or born o the subse*uent marriage under #rticle 03 even though such marriage is void or ailure to comply with the re*uirements o #rticle 02.

Art. 53. 8ither of the former spouses ma" marr" again after compliance with the re-uirements of the immediatel" preceding Article2 otherwise% the subse-uent marriage shall be null and void.

III. *arr$age Cer#$f$"a#e

7#rticles 22 and 238

Art. 22. The marriage certificate% in which the parties shall declare that the" take each other as husband and wife% shall also state* 3'5 The full name% se, and age of each contracting part"2 345 Their citi$enship% religion and habitual residence2 365 The date and precise time of the celebration of the marriage2 3;5 That the proper marriage license has been issued according to law% e,cept in marriage provided for in Chapter 4 of this Title2 3(5 That either or both of the contracting parties have secured the parental consent in appropriate cases2 3@5 That either or both of the contracting parties have complied with the legal re-uirement regarding parental advice in appropriate cases2 and 3A5 That the parties have entered into marriage settlement% if an"% attaching a cop" thereof. Art. 23. +t shall be the dut" of the person solemni$ing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article @ and to send the duplicate and triplicate copies of the certificate not later than fifteen da"s after the marriage% to the local civil registrar of the place where the marriage was solemni$ed. Proper receipts shall be issued b" the local civil registrar to the solemni$ing officer transmitting copies of the marriage certificate. The solemni$ing officer shall retain in his file the -uadruplicate cop" of the marriage certificate% the cop" of the marriage certificate% the original of the marriage license and% in proper cases% the affidavit of the contracting part" regarding the solemni$ation of the marriage in place other than those mentioned in Article B. # marriage certi icate is proo o marriage. witnesses8 4t is however not the only proo 7i.e.,

IV. A,,$#$onal Re<u$re3en#s )e"lara#$on of Null$#9

for

Annul3en#

or

Art. 48. +n all cases of annulment or declaration of absolute nullit" of marriage% the Court shall order the prosecuting attorne" or fiscal assigned to it to appear on behalf of the >tate to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. +n the cases referred to in the preceding paragraph% no judgment shall be based upon a stipulation of facts or confession of judgment. =rosecuting attorney or iscal should6 1. Ta(e steps to prevent collusion between the parties

2. Ta(e care that evidence is not abricated or suppressed ,.7E: !o &udgment shall be based upon a stipulation o acts or con ession o &udgment.

Art. 52. The judgment of annulment or of absolute nullit" of the marriage% the partition and distribution of the properties of the spouses and the deliver" of the children9s presumptive legitimes shall be recorded in the appropriate civil registr" and registries of propert"2 otherwise% the same shall not affect third persons. The ollowing must be accomplished6 1. =artition and distribution o the properties o the spouses 2. :elivery o# the childrens presumptive legitimes 3. )ecording o the &udgment o annulment or o absolute nullity. The partition and distribution and the delivery o# the childrens presumptive legitimes in the appropriate civil registry and registries o property. 7-therwise, the same shall not rd a ect 3 persons8 Failure to comply with #rticle 02 shall render the subse*uent marriage null and void.

V. Fore$gn *arr$ages an, Fore$gn )$%or"es


Art. 26$ %1. All marriages solemni$ed outside the Philippines% in accordance with the laws in force in the countr" where the" were solemni$ed% and valid there as such% shall also be valid in this countr"% e,cept those prohibited under Articles 6( 3'5% 3;5% 3(5 and 3@5% 6@6A and 6B. General )ule* Foreign marriages which are in accordance with the law in orce in the country where they were solemni3ed and valid there are valid in the =hilippines. Exception: Ooid marriages under =hilippine 5aw Exception to t"e exception: 1. Article 6(% I4 Art. 35. The following marriages shall be void from the beginning* 345 Those solemni$ed b" an" person not legall" authori$ed to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemni$ing officer had the legal authorit" to do so2 2. Article 6(% I6 Art. 35. The following marriages shall be void from the beginning* 365 Those solemni$ed without license% e,cept those covered the preceding Chapter2 Art. 26$ %2. /here a marriage between a ?ilipino citi$en and a foreigner is validl" celebrated and a divorce is thereafter validl" obtained abroad b" the alien spouse capacitating him or her to remarr"% the ?ilipino spouse shall have capacit" to remarr" under Philippine law.

General )ule* Foreign divorces obtained by Filipino citi3ens will be considered void and are not recogni3ed. Exception: 4n case the parties to the marriage are a Filipino citi3en and a oreigner. 4 the oreigner obtains a valid oreign divorce, the Filipino spouse shall have capacity to re/marry under =hilippine law. Fowever, i it is the Filipino citi3en who secures the divorce, the divorce will not be recogni3ed in the =hilippines.

)e*uisites o #rticle 21, :2 1. The marriage must be one between a Filipino and a oreigner 2. 'ivorce is granted abroad 3. 'ivorce must have been obtained by the alien spouse. ;. 'ivorce must capacitate the alien spouse to remarry.

#rticle 21, :2 has a retroactive e ect i no vested rights are a ected. &ro'le : +uppose at the time o the marriage, both are Filipinos. 5ater on, one spouse is naturali3ed. This spouse obtains a oreign divorce. Will #rticle 21, :2 apply% 4 views* 1. <ustice Puno It wont. $rticle -A, B- re8uires that at the time the marriage is celebrated, there must be 1 oreigner. 4t applies, #rticle 21, :2 is not speci ic.

2. D.< .pinion

VI. Effe"#s of a )efe"#$%e *arr$age


'. )e.appearance of absent spouse The marriage is not really de#ective. Thus, the term 2terminated is used. Art. 52. The judgment of annulment or of absolute nullit" of the marriage% the partition and distribution of the properties of the spouses and the deliver" of the children9s presumptive legitimes shall be recorded in the appropriate civil registr" and registries of propert"2 otherwise% the same shall not affect third persons. There must be partition and distribution o the properties o the spouses and the delivery o# the childrens presumptive legitimes. This shall be recorded in the appropriate registries o property.

4. Annulment Art. 52. The judgment of annulment or of absolute nullit" of the marriage% the partition and distribution of the properties of the spouses and the deliver" of the children9s presumptive legitimes shall be recorded in the appropriate civil registr" and registries of propert"2 otherwise% the same shall not affect third persons.

There must be a partition and distribution o the properties o the spouses and the delivery o# the childrens presumptive legitime, and the recording o# such and the &udgment o nullity with the appropriate civil registry and registries o property.

Art. 53. 8ither of the former spouses ma" marr" again after compliance with the re-uirements of the immediatel" preceding Article2 otherwise% the subse-uent marriage shall be null and void. ,ither o the ormer spouses may marry again provided #rticle 02 is complied with.

6. Declaration of 1ullit" This is not a de ective marriage since there was no marriage in the irst place. #rticle 0. applies. Art. 50. The effects provided for b" paragraphs 345% 365% 3;5 and 3(5 of Article ;6 and b" Article ;; shall also appl" in the proper cases to marriages which are declared a' initio or annulled b" final judgment under Articles ;D and ;(. The final judgment in such cases shall provide for the li-uidation% partition and distribution of the properties of the spouses% the custod" and support of the common children% and the deliver" of third presumptive legitimes% unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute communit" or the conjugal partnership shall be notified of the proceedings for li-uidation. +n the partition% the conjugal dwelling and the lot on which it is situated% shall be adjudicated in accordance with the provisions of Articles 'D4 and '4C. ;. !egal >eparation +ee #rticles 13 and 1; or the e ects. Art. 63. The decree of legal separation shall have the following effects* 3'5 The spouses shall be entitled to live separatel" from each other% but the marriage bonds shall not be severed2 345 The absolute communit" or the conjugal partnership shall be dissolved and li-uidated but the offending spouse shall have no right to an" share of the net profits earned b" the absolute communit" or the conjugal partnership% which shall be forfeited in accordance with the provisions of Article ;63452 The custod" of the minor children shall be awarded to the innocent spouse% subject to the provisions of Article 4'6 of this Code2 and

365

3;5 The offending spouse shall be dis-ualified from inheriting from the innocent spouse b" intestate succession. :oreover%

provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked b" operation of law. Art. 64. After the finalit" of the decree of legal separation% the innocent spouse ma" revoke the donations made b" him or b" her in favor of the offending spouse% as well as the designation of the latter as beneficiar" in an" insurance polic"% even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of propert" in the places where the properties are located. Alienations% liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of propert" shall be respected. The revocation of or change in the designation of the insurance beneficiar" shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five "ears from the time the decree of legal separation become final.

VII. Rules on #7e Forfe$#ure of #7e S7are of #7e (u$l#9 S-ouse


'. )e.appearance of spouse 7#rticle ;37288 Art. 43. The termination of the subse-uent marriage referred to in the preceding Article shall produce the following effects* 345 The absolute communit" of propert" or the conjugal partnership% as the case ma" be% shall be dissolved and li-uidated% but if either spouse contracted said marriage in bad faith% his or her share of the net profits of the communit" propert" or conjugal partnership propert" shall be forfeited in favor of the common children or% if there are none% the children of the guilt" spouse b" a previous marriage or in default of children% the innocent spouse2 The present spouse cannot be the one in bad aith because in order to contract a subse*uent marriage, the present spouse must believe in good aith that the absent spouse is dead.

4. Annulment 7#rticle 0.7188 Art. 50. The effects provided for b" paragraphs 345% 365% 3;5 and 3(5 of Article ;6 and b" Article ;; shall also appl" in the proper cases to marriages which are declared a' initio or annulled b" final judgment under Articles ;D and ;(. 6. !egal >eparation 3Article @63455 Art. 63. effects* The decree of legal separation shall have the following

345 The absolute communit" or the conjugal partnership shall be dissolved and li-uidated but the offending spouse shall have no right to an" share of the net profits earned b" the absolute

communit" or the conjugal partnership% which shall be forfeited in accordance with the provisions of Article ;63452

VIII. Ins#an"es Leg$#$3es

&7en #7ere

$s )el$%er9

of

Presu3-#$%e

'. )e.appearance of former spouse 7#rticles 1.2 708, ;37288 Art. 102. =pon dissolution of the absolute communit" regime% the following procedure shall appl"* 3(5 The presumptive legitimes of the common children shall be delivered upon partition% in accordance with Article ('. Art. 43. The termination of the subse-uent marriage referred to in the preceding Article shall produce the following effects* 345 The absolute communit" of propert" or the conjugal partnership% as the case ma" be% shall be dissolved and li-uidated% but if either spouse contracted said marriage in bad faith% his or her share of the net profits of the communit" propert" or conjugal partnership propert" shall be forfeited in favor of the common children or% if there are none% the children of the guilt" spouse b" a previous marriage or in default of children% the innocent spouse2 4. Annulment 7#rticles 0. :2, 018 Art. 50$ %2. The final judgment in such cases shall provide for the li-uidation% partition and distribution of the properties of the spouses% the custod" and support of the common children% and the deliver" of their presumptive legitimes% unless such matters had been adjudicated in previous judicial proceedings. Art. 51. +n said partition% the value of the presumptive legitimes of all common children% computed as of the date of the final judgment of the trial court% shall be delivered in cash% propert" or sound securities% unless the parties% b" mutual agreement judiciall" approved% had alread" provided for such matters. The children or their guardian or the trustee of their propert" ma" ask for the enforcement of the judgment. The deliver" of the presumptive legitimes herein prescribed shall in no wa" prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents2 but the value of the properties alread" received under the decree of annulment or absolute nullit" shall be considered as advances on their legitime. 6. !egal >eparation 7#rticles 1.2 708, 137288 Art. 102. =pon dissolution of the absolute communit" regime% the following procedure shall appl"* 3(5 The presumptive legitimes of the common children shall be delivered upon partition% in accordance with Article ('.

Art. 63. effects*

The decree of legal separation shall have the following

345 The absolute communit" or the conjugal partnership shall be dissolved and li-uidated but the offending spouse shall have no right to an" share of the net profits earned b" the absolute communit" or the conjugal partnership% which shall be forfeited in accordance with the provisions of Article ;63452 ;. #ther causes for the dissolution of conjugal propert" 7#rticles 1.2, 12A, 1308 Art. 102. =pon dissolution of the absolute communit" regime% the following procedure shall appl"* 3'5 An inventor" shall be prepared% listing separatel" all the properties of the absolute communit" and the e,clusive properties of each spouse. 345 The debts and obligations of the absolute communit" shall be paid out of its assets. +n case of insufficienc" of said assets% the spouses shall be solidaril" liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article C;. 365 /hatever remains of the e,clusive properties of the spouses shall thereafter be delivered to each of them. 3;5 The net remainder of the properties of the absolute communit" shall constitute its net assets% which shall be divided e-uall" between husband and wife% unless a different proportion or division was agreed upon in the marriage settlements% or unless there has been a voluntar" waiver of such share provided in this Code. ?or purpose of computing the net profits subject to forfeiture in accordance with Articles ;6% 1o. 345 and @6% 1o. 345% the said profits shall be the increase in value between the market value of the communit" propert" at the time of the celebration of the marriage and the market value at the time of its dissolution.

3(5 The presumptive legitimes of the common children shall be delivered upon partition% in accordance with Article ('. 3@5 =nless otherwise agreed upon b" the parties% in the partition of the properties% the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majorit" of the common children choose to remain. Children below the age of seven "ears are deemed to have chosen the mother% unless the court has decided otherwise. +n case there in no such majorit"% the court shall decide% taking into consideration the best interests of said children. Art. 129. =pon the dissolution of the conjugal partnership regime% the following procedure shall appl"*

3'5 An inventor" shall be separatel" all the properties partnership and the spouse. 345

prepared% of the e,clusive

listing conjugal properties

of

each

Amounts advanced b" the conjugal partnership in pa"ment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.

365 8ach spouse shall be reimbursed for the use of his or her e,clusive funds in the ac-uisition of propert" or for the value of his or her e,clusive propert"% the ownership of which has been vested b" law in the conjugal partnership. 3;5 The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. +n case of insufficienc" of said assets% the spouses shall be solidaril" liable for the unpaid balance with their separate properties% in accordance with the provisions of paragraph 345 of Article '4'. 3(5 /hatever remains of the e,clusive properties of the spouses shall thereafter be delivered to each of them. 3@5 =nless the owner had been indemnified from whatever source% the loss or deterioration of movables used for the benefit of the famil"% belonging to either spouse% even due to fortuitous event% shall be paid to said spouse from the conjugal funds% if an". 3A5 The net remainder of the conjugal partnership properties shall constitute the profits% which shall be divided e-uall" between husband and wife% unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntar" waiver or forfeiture of such share as provided in this Code.

3B5 The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article ('. 3C5 +n the partition of the properties% the conjugal dwelling and the lot on which it is situated shall% unless otherwise agreed upon b" the parties% be adjudicated to the spouse with whom the majorit" of the common children choose to remain. Children below the age of seven "ears are deemed to have chosen the mother% unless the court has decided otherwise. +n case there is no such majorit"% the court shall decide% taking into consideration the best interests of said children. Art. 135. An" of the following shall be considered sufficient cause for judicial separation of propert"* 3'5 That the spouse of the petitioner has been sentenced to a penalt" which carries with it civil interdiction2 345 That the spouse of the petitioner has been judiciall" declared an absentee2 365 That loss of parental authorit" of the spouse of petitioner has been decreed b" the court2

3;5 That the spouse of the petitioner has abandoned the latter or failed to compl" with his or her obligations to the famil" as provided for in Article 'D'2 3(5 That the spouse granted the power of administration in the marriage settlements has abused that power2 and 3@5 That at the time of the petition% the spouses have been separated in fact for at least one "ear and reconciliation is highl" improbable. +n the cases provided for in 1umbers 3'5% 345 and 365% the presentation of the final judgment against the guilt" or absent spouse shall be enough basis for the grant of the decree of judicial separation of propert". (. Decree of 1ullit" 7#rticle 0.:28 Art. 50. The final judgment in such cases shall provide for the li-uidation% partition and distribution of the properties of the spouses% the custod" and support of the common children% and the deliver" of third presumptive legitimes% unless such matters had been adjudicated in previous judicial proceedings. =ro essor 9alane is not in avor o the delivery o presumptive legitimes. =resumptive legitimes are tentative. Furthermore, the properties o the spouses are ro3en, yet the children do not have vested rights.

I=. Legal Se-ara#$on :Be, an, Boar, Se-ara#$on;


Art. 55. A petition for legal separation ma" be filed on an" of the following grounds* 3'5 )epeated ph"sical violence or grossl" abusive conduct directed against the petitioner% a common child% or a child of the petitioner2

The key words are 2repeated and 2grossly. 345 Ph"sical violence or moral pressure to compel the petitioner to change religious or political affiliation2

There must be undue pressure since some pressure is e$pected in every marriage. 4t must go beyond what is permissible 7case to case basis8. 365 Attempt of respondent to corrupt or induce the petitioner% a common child% or a child of the petitioner% to engage in prostitution% or connivance in such corruption or inducement2

3;5 ?inal judgment sentencing the respondent to imprisonment of more than si, "ears% even if pardoned2 3(5 Drug addiction or habitual alcoholism of the respondent2

The drug addiction can occur a ter the marriage. #rticle 00 708 does not tal( o concealment o drug addiction unli(e #rticle ;17;8 . 3@5 !esbianism or homose,ualit" of the respondent2

4s this tal(ing about homose$uality in terms o practice or is such se$ual orientation enough% #gain, there are no cases. 3A5 Contracting b" the respondent of a subse-uent bigamous marriage% whether in the Philippines or abroad2 3B5 >e,ual infidelit" or perversion2

Under the Family Code, both men and women need only commit one act o se$ual in idelity to all under #rticle 00 7@8. 4n :andionco vs. PeBaranda, the +upreme Court said that a criminal conviction o concubinage is not necessary, only preponderance o evidence. 4n act, a civil action or legal separation based on concubinage may proceed ahead o or simultaneously with a criminal action. +e$ual perversion is a relative term. 3C5 Attempt b" the respondent against the life of the petitioner2 or

#rticle 00 7A8 under this ground, there is no need or conviction. 3'D5 Abandonment of petitioner b" respondent without justifiable cause for more than one "ear.

?or purposes of this Article% the term HchildH shall include a child b" nature or b" adoption. Art. 56. The petition for legal separation shall be denied on an" of the following grounds* 3'5 /here the aggrieved part" has condoned the offense or act complained of2 345 /here the aggrieved part" has consented to the commission of the offense or act complained of2 365 /here there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation2 3;5 /here both parties have given ground for legal separation2 3(5 /here there is collusion between the parties to obtain decree of legal separation2 or 3@5 /here the action is barred b" prescription.

There are 2 more grounds not ound in #rticle 016

Art. 4'. #ny o the ollowing circumstances shall constitute raud re erred to in !umber 3 o the preceding #rticle6 7;8 Concealment o drug addiction, habitual alcoholism or homose$uality or lesbianism e$isting at the time o the marriage.

1. 'eath o either party during the pendency o the case 7 Lapu @+8 vs. Eu"emio8 2. )econciliation o the spouses during the pendency o the case 7#rticle 11 718 8 4n Lapu @+8 vs. Eu"emio, the lawyer wanted to proceed with legal separation despite o the death o one o the parties. The +upreme Court denied it since the primary purpose o legal separation is bed and board separation while the e ect on their property relations is merely incidental.

Art. 58. An action for legal separation shall in no case be tried before si, months shall have elapsed since the filing of the petition. This is the cooling/o period can only try the petition or legal separation a ter 1 months rom iling. The +upreme Court has interpreted #rticle 0@ to mean that there shall be no hearing on the main issue but the court may hear incidental issues. 4n the case o Araneta vs. ;oncepcion, the +upreme Court allowed the court to hear the issue regarding the custody o the children even i the 1/month period had not yet elapsed. &ro#essor %alane didnt like the ruling in this case. $ccording to him, what are you going to talk about i# you dont go to the main case!

Art. 59. 1o legal separation ma" be decreed unless the Court has taken steps toward the reconciliation of the spouses and is full" satisfied% despite such efforts% that reconciliation is highl" improbable. For legal separation to be declared, reconciliation must be highly unli(ely.

Art. 60. 1o decree of legal separation shall be based upon a stipulation of facts or a confession of judgment. +n an" case% the Court shall order the prosecuting attorne" or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. !o decree o legal separation shall be based upon a stipulation o acts or a con ession &udgment. 4n .campo vs. ?lorenciano, the +upreme Court said that legal separation cannot be granted on the basis o# the wi#es admission alone. There must be other proo . '. 8ffects of ?iling A Petition for !egal >eparation a. +pouses can live separately rom each other. b. The administration o the common properties 7#C=, C=2, etc8 shall be given by rd the court to either o the spouses or to a 3 person as is best or the interests o the community. c. 4n the absence o a written agreement o the spouses, the court shall provide or the support between the spouses and the custody and support o the common children, ta(ing into account the wel are o the children and their choice o the parent with whom they wish to remain.

Art. ''. The reconciliation re erred to in the preceding #rticles shall have the ollowing conse*uences6 718 The legal separation proceedings, i still pending, shall thereby be terminated at

whatever stage

d. When the consent o 1 spouse to any transaction o the other is re*uired by law, &udicial authori3ation shall be necessary, unless such spouse voluntarily gives such consent. 4. 8ffects of the Decree of !egal >eparation 7!os. 1 ;, #rticle 138 Art. 63. effects* 3'5 The decree of legal separation shall have the following

The spouses shall be entitled to live separatel" from each other% but the marriage bonds shall not be severed2

345 The absolute communit" or the conjugal partnership shall be dissolved and li-uidated but the offending spouse shall have no right to an" share of the net profits earned b" the absolute communit" or the conjugal partnership% which shall be forfeited in accordance with the provisions of Article ;63452 365 The custod" of the minor children shall be awarded to the innocent spouse% subject to the provisions of Article 4'6 of this Code2 and 3;5 The offending spouse shall be dis-ualified from inheriting from the innocent spouse b" intestate succession. :oreover% provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked b" operation of law. a. +pouses shall be entitled to live separately rom each other, but the marriage bonds shall not be severed. b. The #C= or the C=2 shall be dissolved and li*uidated. The o ending spouse shall have no right to any share o the net pro its earned by the #C= or C=2 ollowing the rules o or eiture in #rticle ;3 728 . c. The custody o the minor children shall be awarded to the innocent spouse sub&ect to #rticle 213 .

d. The o ending spouse shall be dis*uali ied rom inheriting rom the innocent spouse by intestate succession. Testamentary dispositions in avor o the o ending spouse shall be revo(ed by operation o law. e. 'onation propter nuptias made by the innocent spouse to the o ending spouse may be revo(ed at the option o the ormer. 7#rticle 1; 8

Art. 4). The termination o the subse*uent marriage re erred to in the preceding #rticle shall produce the ollowing e ects6 728 The absolute community o property or the con&ugal partnership, as the case may be, shall be dissolved and li*uidated, but i either spouse contracted said marriage in bad aith, his or her share o the net pro its o the community property or con&ugal partnership property shall be or eited in avor o the common children or, i there are none, the children o the guilty spouse by a previous marriage or in de ault o children, the innocent spouse"

Art. &*). 4n case o separation o the parents, parental authority shall be e$ercised by the parent designated by the Court. The Court shall ta(e into account all relevant considerations, especially the choice o the child over seven years o age, unless the parent chosen is un it.

Art. '4. # ter the inality o the decree o legal separation, the innocent spouse may revo(e the donations made by him or by her in avor o the o ending spouse, as well as the designation o the latter as bene iciary in any insurance policy, even i such designation be stipulated as irrevocable.

The designation by the innocent spouse o the o ending spouse as a bene iciary in any insurance policy 7even irrevocable ones8 may be revo(ed by the innocent spouse. 7#rticle 1; 8

g. Cessation o the obligation o mutual support. 7#rticle 1A@ 8 h. The wi e shall continue using her name and surname employed be ore legal separation. 6. 8ffects of )econciliation a. Ioint custody o the children is restored. b. The right to succeed by the guilty spouse rom the o ended spouse is restored compulsory only. c. With regard testamentary spouse in the will o the innocent spouse. d. 4 the donation propter nuptias succession, reconciliation will not automatically revive the institution o the guilty were revo(ed, the same is not automatically restored. #rticles 10 and 11 always allow reconciliation even a ter the decree. Art. 65. +f the spouses should reconcile% a corresponding joint manifestation under oath dul" signed b" them shall be filed with the court in the same proceeding for legal separation. Art. 66. The reconciliation referred to in the preceding Articles shall have the following conse-uences* 3'5 The legal separation proceedings% if still pending% shall thereb" be terminated at whatever stage2 and 345 The final decree of legal separation shall be set aside% but the separation of propert" and an" forfeiture of the share of the guilt" spouse alread" effected shall subsist% unless the spouses agree to revive their former propert" regime. The court9s order containing the foregoing shall be recorded in the proper civil registries. #ccording to =ro essor 9alane, it is not the reconciliation which produces the e ects in #rticle 11. )ather, it is the iling o the &oint mani estation o reconciliation.

The revocation o the donations shall be recorded in the registries o property in the places where the properties are located. #lienations, liens and encumbrances registered in good aith be ore the recording o the complaint or revocation in the registries o property shall be respected. The revocation o or change in the designation o the insurance bene iciary shall ta(e e ect upon written noti ication thereo to the insured. The action to revo(e the donation under this #rticle must be brought within ive years rom the time the decree o legal separation become inal.

Art. *2/. 'uring the proceedings or legal separation or or annulment o marriage, and or declaration o nullity o marriage, the spouses and their children shall be supported rom the properties o the absolute community or the con&ugal partnership. # ter the inal &udgment granting the petition, the obligation o mutual support between the spouses ceases. Fowever, in case o legal separation, the court may order that the guilty spouse shall give support to the innocent one, speci ying the terms o such order.

=. R$g7#s an, Obl$ga#$ons be#&een 'usban, an, W$fe


Art. 68. The husband and wife are obliged to live together% observe mutual love% respect and fidelit"% and render mutual help and support. This is really a declaration o policy The 3 duties o the spouses to each other are6 1. 5ive together 2. -bserve mutual love, respect, and idelity 3. )ender mutual help and support $rticle A6 is $rticle /As re#erence when it re#ers to the spouses inability to comply with the essential marital obligations. #lthough the courts cannot compel the spouses to comply with their marital obligations, under #rticles 1.. and 12?, the spouse who leaves the con&ugal home or re uses to live there without &us t cause shall not have the right to be supported.

Art. 69. The husband and wife shall fi, the famil" domicile. +n case of disagreement% the court shall decide. The court ma" e,empt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the e,emption. 7owever% such e,emption shall not appl" if the same is not compatible with the solidarit" of the famil". The power to i$ the domicile is &oint. General )ule* +eparation is incompatible with amily solidarity. Exception: #rticle 1A, :2
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1. -ne spouse should live abroad 2. -ther valid and compelling reasons Art. 70. The spouses are jointl" responsible for the support of the famil". The e,penses for such support and other conjugal obligations shall be paid from the communit" propert" and% in the absence thereof% from the income or fruits of their separate properties. +n case of insufficienc" or absence of said income or fruits% such obligations shall be satisfied from the separate properties. +upport is a &oint responsibility. 9oth spouses are responsible or the support o the amily. +upport comprises everything indispensable or sustenance, dwelling, clothing, medical attendance, education and transportation, in (eeping with the inancial capacity o the amily 7#rticle 1A;8

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Art. '2! (&. The court may e$empt one spouse rom living with the other i the latter should live abroad or there are other valid and compelling reasons or the e$emption. Fowever, such e$emption shall not apply i the same is not compatible with the solidarity o the amily.

Under #rticles A; 7last :8 , 121 7last :8 and 1;1 7:28 , i the community property is insu icient to cover debts o the community property, then the spouses are solidarily liable with their separate property. 4 the spouses have a regime o separation o property, the spouses are solidarily liable to creditors or amily e$penses.

Art. 73. 8ither spouse ma" e,ercise an" legitimate profession% occupation% business or activit" without the consent of the other. The latter ma" object onl" on valid% serious% and moral grounds. +n case of disagreement% the court shall decide whether or not* 3'5 The objection is proper% and 345 Fenefit has occurred to the famil" prior to the objection or thereafter. +f the benefit accrued prior to the objection% the resulting obligation shall be enforced against the separate propert" of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. There is an error here. This is !-T the ull te$t. The te$t should read6 E)%#e( "0-1"e / , e;e(c)"e *, $e.)%)/ %e 0(-'e"")-*4 -cc10 %)-*4 21")*e"" -( c%)5)%, !)%#-1% %#e c-*"e*% -' %#e -%#e(. T#e $ %%e( / , -2Bec% -*$, -* 5 $)+4 "e()-1" *+ /-( $ .(-1*+". I* c "e -' +)" .(ee/e*%4 %#e c-1(% "# $$ +ec)+e !#e%#e( -( *-%@ 1. T#e -2Bec%)-* )" 0(-0e(4 *+ 2. Be*e')% # " cc(1e+ %- %#e ' /)$, 0()-( %- %#e -2Bec%)-* -( %#e(e '%e(. I' %#e 2e*e')% cc(1e+ 0()-( %- %#e -2Bec%)-*4 %#e (e"1$%)*. -2$). %)-* "# $$ 2e e*'-(ce+ . )*"% %#e c-//1*)%, 0(-0e(%,. I' %#e 2e*e')% cc(1e+ %#e(e '%e(4 "1c# -2$). %)-* "# $$ 2e e*'-(ce+ . )*"% %#e "e0 ( %e 0(-0e(%, -' %#e "0-1"e !## " *-% -2% )*e+ c-*"e*%.

=I. Pro-er#9 Rela#$ons


=roperty relations are very important to creditors.

Art. 74. The propert" relationship between husband and wife shall be governed in the following order* 3'5 F" marriage settlements e,ecuted before the marriage2 345 F" the provisions of this Code2 and 365 F" the local custom. =roperty relations is the only instance when the husband and wi e can stipulate as to the terms an conditions.

Art. 24! last (. 4 the community property is insu icient to cover the oregoing liabilities, e$cept those alling under paragraph 7A8, the spouses shall be solidarily liable or the unpaid balance with their separate properties.

Art. *&*! last (. 4 the con&ugal partnership is insu icient to cover the oregoing liabilities, the spouses shall be solidarily liable or the unpaid balance with their separate properties.

Art. *4'! (&. solidary.

The liabilities o the spouses to creditors or amily e$penses shall, however, be

The marriage settlement governs the property relations o spouses provided such is not contrary to law. 4n the absence o a marriage settlement, the Family Code comes in. 4 the Family Code in a rare instance is not applicable, then custom comes in. There ore, in the absence o a marriage settlement or when such marriage settlement is void, #C= shall be their marriage settlement by operation o law. #s an e$ception, when the 1 marriage is dissolved by reason o death and the 2 marriage was entered into be ore the con&ugal partnership is li*uidated, the law mandates that a regime o complete separation o property shall govern.
st nd

Art. 75. The future spouses ma"% in the marriage settlements% agree upon the regime of absolute communit"% conjugal partnership of gains% complete separation of propert"% or an" other regime. +n the absence of a marriage settlement% or when the regime agreed upon is void% the s"stem of absolute communit" of propert" as established in this Code shall govern. #C= is the regime o the spouses in the absence o a marriage settlement or when the marriage settlement is void. This is so because #C= is more in (eeping with Filipino culture. General )ule* #ll modi ications to the marriage settlement must be made be ore the marriage is celebrated. Exceptions: 1. 5egal +eparation 7#rticle 13 728 8

4n such an instance, the property regime is dissolved.

2. )evival o the ormer property regime upon reconciliation i the spouses agree 7#rticle 11 728 8 3. # spouse may petition the court or6 1. )eceivership 2. Iudicial separation o property, or 3. The authority to be the sole administrator o the con&ugal partnership 4 the other spouse abandons the other without &ust cause or ails to comply with his or her obligations to the amily. 7#rticle 12@ 8

Art. '). The decree o legal separation shall have the ollowing e ects6 728 The absolute community or the con&ugal partnership shall be dissolved and li*uidated but the o ending spouse shall have no right to any share o the net pro its earned by the absolute community or the con&ugal partnership, which shall be or eited in accordance with the provisions o #rticle ;3728"

Art. ''. The reconciliation re erred to in the preceding #rticles shall have the ollowing conse*uences6 728 The inal decree o legal separation shall be set aside, but the separation o property and any or eiture o the share o the guilty spouse already e ected shall subsist, unless the spouses agree to revive their ormer property regime.

#rt. 12@. 4 a spouse without &ust cause abandons the other or ails to comply with his or her obligation to the amily, the aggrieved spouse may petition the court or receivership, or &udicial

;. Iudicial 'issolution 7#rticles 130 and 131 8 Art. 77. The marriage settlements and an" modification thereof shall be in writing% signed b" the parties and e,ecuted before the celebration of the marriage. The" shall not prejudice third persons unless the" are registered in the local civil registr" where the marriage contract is recorded as well as in the proper registries of properties. ?orm* >arriage settlements and their modi ications must be in writing 7private or public8 or validity To bind 3
rd

persons, the marriage settlement must be registered in6

1. 5ocal Civil )egistry where the marriage contract is recorded. 2. =roper )egistries o =roperty Art. 78. A minor who according to law ma" contract marriage ma" also e,ecute his or her marriage settlements% but the" shall be valid onl" if the persons designated in Article '; to give consent to the marriage are made parties to the agreement% subject to the provisions of Title +J of this Code.

separation o property, or or authority to be the sole administrator o the con&ugal partnership property, sub&ect to such precautionary conditions as the court may impose. The obligations to the amily mentioned in the preceding paragraph re er to marital, parental or property relations. # spouse is deemed to have abandoned the other when he or she has le t the con&ugal dwelling without intention o returning. The spouse who has le t the con&ugal dwelling or a period o three months or has ailed within the same period to give any in ormation as to his or her whereabouts shall be prima acie presumed to have no intention o returning to the con&ugal dwelling.

Art. *)%. #ny o the ollowing shall be considered su icient cause or &udicial separation o property6 718 That the spouse o the petitioner has been sentenced to a penalty which carries with it civil interdiction" 728 That the spouse o the petitioner has been &udicially declared an absentee" 738 That loss o parental authority o the spouse o petitioner has been decreed by the court" 7;8 That the spouse o the petitioner has abandoned the latter or ailed to comply with his or her obligations to the amily as provided or in #rticle 1.1" 708 That the spouse granted the power o administration in the marriage settlements has abused that power" and 718 That at the time o the petition, the spouses have been separated in act or at least one year and reconciliation is highly improbable. 4n the cases provided or in !umbers 718, 728 and 738, the presentation o the inal &udgment against the guilty or absent spouse shall be enough basis or the grant o the decree o &udicial separation o property. Art. *)'. The spouses may &ointly ile a veri ied petition with the court or the voluntary dissolution o the absolute community or the con&ugal partnership o gains, and or the separation o their common properties. #ll creditors o the absolute community or o the con&ugal partnership o gains, as well as the personal creditors o the spouse, shall be listed in the petition and noti ied o the iling thereo . The court shall ta(e measures to protect the creditors and other persons with pecuniary

interest.

4 the party has not yet reached the age o 21, parental consent is also re*uired with regard to the marriage settlement.

Art. 79. ?or the validit" of an" marriage settlement e,ecuted b" a person upon whom a sentence of civil interdiction has been pronounced or who is subject to an" other disabilit"% it shall be indispensable for the guardian appointed b" a competent court to be made a part" thereto. Art. 80. +n the absence of a contrar" stipulation in a marriage settlement% the propert" relations of the spouses shall be governed b" Philippine laws% regardless of the place of the celebration of the marriage and their residence. This rule shall not appl"* 3'5 /here both spouses are aliens2 345 /ith respect to the e,trinsic validit" of contracts affecting propert" not situated in the Philippines and e,ecuted in the countr" where the propert" is located2 and 365 /ith respect to the e,trinsic validit" of contracts entered into in the Philippines but affecting propert" situated in a foreign countr" whose laws re-uire different formalities for its e,trinsic validit".

Art. 81. 8ver"thing stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage% including donations between the prospective spouses made therein% shall be rendered void if the marriage does not take place. 7owever% stipulations that do not depend upon the celebration of the marriages shall be valid. The marriage settlement and the donations propter nuptias are void i the marriage does not ta(e place. A. Donations &ropter #uptias )e*uisites o 'onations Propter nuptias 1. >ade be ore marriage 2. >ade in consideration o the marriage 7the motivation behind the donation is the marriage8 3. 4n avor o one or both o the spouses The donee must be 1 or both o the spouses The donor can be anybody including 1 o the spouses 4 the wedding gi t is given be ore the wedding that is a donation propter nuptias. 4 the wedding gi t is given a ter the wedding, that is treated as an ordinary donation

Art. 83. These donations are governed b" the rules on ordinar" donations established in Title +++ of Fook +++ of the Civil Code% insofar as the" are not modified b" the following articles.

F-)>6 >ust comply with the orm o donations in order to be valid 7+ee #rticles ?;@ and ?;A 8

Art. 84. +f the future spouses agree upon a regime other than the absolute communit" of propert"% the" cannot donate to each other in their marriage settlements more than one.fifth of their present propert". An" e,cess shall be considered void. Donations of future propert" shall be governed b" the provisions on testamentar" succession and the formalities of wills. This article applies only i the regime is !-T #C=. -therwise, everything practically would be community property. 4 the donor is one o the uture spouses and the regime is !-T #C=, the donor cannot donate more than 1H0 o his =),+,!T =)-=,)TD. The uture spouse may donate uture property to his iancRe or as long as it is not ino icious 7does not impair legitimes o the other compulsory heirs8. This is so because the donation o uture property is really a testamentary disposition. 4n the case o 9ateo vs. Lagua, the +upreme Court said that donations propter nuptias may be revo(ed or being ino icious. 4 the donor is not one o the uture spouses, the donor may give more than 1H0 o his present property provided that the legitimes are not impaired. 4 the regime is #C=, there is no need to give a donation propter nuptias to your spouse. 4t is useless since such donation shall become part o the community property. 4n addition, donor s ta4 must be paid.

Art. 86. A donation b" reason of marriage ma" be revoked b" the donor in the following cases* 3'5 +f the marriage is not celebrated or judiciall" declared void a' initio e,cept donations made in the marriage settlements% which shall be governed b" Article B'2 345 /hen the marriage takes place without the consent of the parents or guardian% as re-uired b" law2 365 /hen the marriage is annulled% and the donee acted in bad faith2 3;5 =pon legal separation% the donee being the guilt" spouse2

Art. 14/. The donation o a movable may be made orally or in writing. #n oral donation re*uires the simultaneous delivery o the thing or o the document representing the right donated. 4 the value o the personal property donated e$ceeds ive thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void. Art. 142. 4n order that the donation o an immovable may be valid, it must be made in a public document, speci ying therein the property donated and the value o the charges which the donee must satis y. The acceptance may be made in the same deed o donation or in a separate public document, but it shall not ta(e e ect unless it is done during the li etime o the donor. 4 the acceptance is made in a separate instrument, the donor shall be noti ied thereo in an authentic orm, and this step shall be noted in both instruments.

3(5

+f it is with a resolutor" condition and the condition is complied with2

3@5 /hen the donee has committed an act of ingratitude as specified b" the provisions of the Civil Code on donations in general. The donations propter nuptias may be revo(ed on the grounds enumerated here. 4n #rticle @1 718, the act o ingratitude re ers to #rticle ?10 .

Art. 87. 8ver" donation or grant of gratuitous advantage% direct or indirect% between the spouses during the marriage shall be void% e,cept moderate gifts which the spouses ma" give each other on the occasion of an" famil" rejoicing. The prohibition shall also appl" to persons living together as husband and wife without a valid marriage. General )ule* another. 'uring the marriage, the spouses may not donate to one

Exception: +pouses may give moderate gi ts to each other on the occasion o any amily re&oicing. ,.7E: #rticle @? is applicable to common/law spouses 79ata5uena vs. ;ervantes8

This is to minimi3e improper or undue pressure as well as to prevent the spouses rom de rauding their creditors. o. A'solute *o unit!

F. 5!ste

Art. 91. =nless otherwise provided in this Chapter or in the marriage settlements% the communit" propert" shall consist of all the propert" owned b" the spouses at the time of the celebration of the marriage or ac-uired thereafter. Art. 92. propert"* The following shall be e,cluded from the communit"

3'5 Propert" ac-uired during the marriage b" gratuitous title b" either spouse% and the fruits as well as the income thereof% if an"% unless it is e,pressl" provided b" the donor% testator or grantor that the" shall form part of the communit" propert"2 345 Propert" for personal and e,clusive use of either spouse. 7owever% jewelr" shall form part of the communit" propert"2

Art. 1'%. The donation may also be revo(ed at the instance o the donor, by reason o ingratitude in the ollowing cases6 718 4 the donee should commit some o ense against the person, the honor or the property o the donor, or o his wi e or children under his parental authority" 728 4 the donee imputes to the donor any criminal o ense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himsel , his wi e or children under his authority" 738 4 he unduly re uses him support when the donee is legally or morally bound to give support to the donor.

365 Propert" ac-uired before the marriage b" either spouse who has legitimate descendants b" a former marriage% and the fruits as well as the income% if an"% of such propert". General )ule* Community property shall consist o all the property owned by the spouses at the time o the celebration o the marriage or ac*uired therea ter. Exceptions: 1. =roperty ac*uired during the marriage by gratuitous title, including the ruits and the income. Exception to t"e exception: e$pressly provides otherwise. The donor, testator, or grantor

$s #ather dies. $ inherits #rom the #ather. $ marries %. The property inherited by # rom his ather is part o the community property. %s mother dies during %s marriage to $. The property inherited by % rom her mother does not orm part o the community property. 4n #C=, the income rom separate property o the spouses does not orm part o the community property. 4! C=2, the income rom separate property o the spouses orms part o the community property.

2. =roperty or personal and e$clusive use o either spouse Exception to t"e Exception: community property. Iewelry orms part o the

3. =roperty ac*uired be ore the marriage by either spouse who has legitimate descendants by a ormer marriage, and the ruits and income o such property. This is provided or so that the children rom the 1 be pre&udiced.
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marriage will not

Art. 93. Propert" ac-uired during the marriage is presumed to belong to the communit"% unless it is proved that it is one of those e,cluded therefrom. &resu ption: =roperty ac*uired during the marriage is presumed to belong to the community. Fowever it can be rebutted by proving such property ac*uired during marriage is e$cluded. Art. 94. The absolute communit" of propert" shall be liable for* #rticle A; enumerates the charges upon the absolute community o property. 3'5 The support of the spouses% their common children% and legitimate children of either spouse2 however% the support of illegitimate children shall be governed b" the provisions of this Code on >upport2

The $*& shall support the spouses common children and legitimate children o# either spouse # common child o the spouse may not necessarily be legitimate. For e$ample, # is married to 9. # has an a air with C. # and C have a child, '. 9 dies. $ and * get married. : cannot be legitimated since at the time o# :s conception, # and C had no capacity to get married. 4llegitimate children are supported6 1. =rimarily by their biological parent 2. +ubsidiarily by the #C= 7#rticle A; 7A8 8 345 All debts and obligations contracted during the marriage b" the designated administrator.spouse for the benefit of the communit"% or b" both spouses% or b" one spouse with the consent of the other2 Debts and obligations contracted b" either spouse without the consent of the other to the e,tent that the famil" ma" have been benefited2
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365

The wordings under #rticles A; 728 and A; 738 are di erent #rticle A; 728 contemplates 3 situations6 1. -bligations contracted by the designated administrator spouse purpose o bene iting the community. or the

Under A; 728 7a8, purpose is enough. 4t is not re*uired to show to what e$tent the amily bene ited.

2. -bligations contracted by both spouses 3. -bligations contracted by 1 spouse with the consent o the other. #rticle A; 738 contemplates the situation wherein 1 spouse contracts an obligation without the consent o the other. The #C= is liable only to the e$tent that the amily may have bene ited. &ro'le : What is the rule now regarding obligations contracted by the business o a particular spouse% #ccording to =ro essor 9alane, there are 2 views. -ne view is that #rticle A; 738 may be applied since both spouses are the administrators o the community property. There ore, one spouse should not act alone as administrator. There ore, obligations contracted or the business operations o a spouse are without consent o the other.

Art. 24. The absolute community o property shall be liable or6 7A8 #ntenuptial debts o either spouse other than those alling under paragraph 7?8 o this #rticle, the support o illegitimate children o either spouse, and liabilities incurred by either spouse by reason o a crime or a *uasi/delict, in case o absence or insu iciency o the e$clusive property o the debtor/spouse, the payment o which shall be considered as advances to be deducted rom the share o the debtor/spouse upon li*uidation o the community"

#nother view is that such debts would all under #rticle A; 728. #ccording to Iustice Oitug, there is implied consent by the other spouse since the same did not ob&ect. -therwise, commercial transactions would slow down. 3;5 All ta,es% liens% charges and e,penses% including major or minor repairs% upon the communit" propert"2

3(5 All ta,es and e,penses for mere preservation made during marriage upon the separate propert" of either spouse used b" the famil"2 Ta$es and e$penses or the preservation upon the e$clusive property by 1 o the spouses should be borne by the #C=. This is so because the amily bene its. 3@5 8,penses to enable either spouse to commence or complete a professional or vocational course% or other activit" for self. improvement2 insofar as the" have

3A5 Antenuptial debts of either spouse redounded to the benefit of the famil"2

3B5 The value of what is donated or promised b" both spouses in favor of their common legitimate children for the e,clusive purpose of commencing or completing a professional or vocational course or other activit" for self.improvement2 3C5 Antenuptial debts of either spouse other than those falling under paragraph 3A5 of this Article% the support of illegitimate children of either spouse% and liabilities incurred b" either spouse b" reason of a crime or a -uasi.delict% in case of absence or insufficienc" of the e,clusive propert" of the debtor.spouse% the pa"ment of which shall be considered as advances to be deducted from the share of the debtor.spouse upon li-uidation of the communit"2 and #nte/nuptial debts not alling under #rticle A; 7?8 will be borne by the #C= i the separate property o the debtor/spouse is insu icient. 3'D5 8,penses of litigation between the spouses unless the suit is found to be groundless.

+f the communit" propert" is insufficient to cover the foregoing liabilities% e,cept those falling under paragraph 3C5% the spouses shall be solidaril" liable for the unpaid balance with their separate properties. '. Administration and 8njo"ment of Communit" Propert" Art. 96$ %1. The administration and enjo"ment of the communit" propert" shall belong to both spouses jointl". +n case of disagreement% the husband9s decision shall prevail% subject to recourse to the court b" the wife for proper remed"% which must be availed of within five "ears from the date of the contract implementing such decision.

#dministration o the community property belongs to both spouses &ointly. 9oth spouses must consent to the encumbrance or disposition o community property. the

Art. 96 122$ %2. +n the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties% the other spouse ma" assume sole powers of administration. These powers do not include disposition or encumbrance without authorit" of the court or the written consent of the other spouse. +n the absence of such authorit" or consent% the disposition or encumbrance shall be void. 7owever% the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person% and ma" be perfected as a binding contract upon the acceptance b" the other spouse or authori$ation b" the court before the offer is withdrawn b" either or both offerors. The other spouse may assume sole powers o administration when6 1. The other spouse is incapacitated. 2. The other spouse is unable to participate 7i.e.! abroad8 The power to administer does not include the power to dispose or encumber solely by 1 spouse. Court authority or the approval o the other spouse is re*uired. Art. 97. 8ither spouse ma" dispose b" will of his or her interest in the communit" propert". Art. 98. 1either spouse ma" donate an" communit" propert" without the consent of the other. 7owever% either spouse ma"% without the consent of the other% make moderate donations from the communit" propert" for charit" or on occasions of famil" rejoicing or famil" distress. General )ule* 4n order to donate any community property, the other spouse must consent. Exception: >oderate donations do not need the consent o other spouse i or6 1. Charity 2. -ccasions o amily re&oicing or distress the

4. Dissolution and !i-uidation of Absolute Communit" Art. 99. The absolute communit" terminates* 3'5 =pon the death of either spouse2 345 /hen there is a decree of legal separation2 365 /hen the marriage is annulled or declared void2 or 3;5 +n case of judicial separation of propert" during the marriage under Article '6; to '6B.

'issolution o the #C= is not synonymous with the dissolution o the marriage. 4n #rticles AA 728 and 7;8, the #C= is dissolved although the marriage is not. Fowever, the dissolution o the marriage automatically results in the dissolution o the #C=. 4n #rticle AA 738, when a marriage is declared as a nullity, there is no #C= to dissolve since there was no property regime to begin with. The dissolution in such a case would be governed by the rules on co/ownership. #rticle AA is not a complete enumeration o the instances when the #C= terminates. #nother instance is when the marriage is terminated by the reappearance o the absent spouse 7#rticles ;2 and ;3 728 8.

Art. 102. =pon dissolution of the absolute communit" regime% the following procedure shall appl"* 3'5 An inventor" shall be prepared% listing separatel" all the properties of the absolute communit" and the e,clusive properties of each spouse. 345 The debts and obligations of the absolute communit" shall be paid out of its assets. +n case of insufficienc" of said assets% the spouses shall be solidaril" liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article C;. 365 /hatever remains of the e,clusive properties of the spouses shall thereafter be delivered to each of them.

3;5 The net remainder of the properties of the absolute communit" shall constitute its net assets% which shall be divided e-uall" between husband and wife% unless a different proportion or division was agreed upon in the marriage settlements% or unless there has been a voluntar" waiver of such share provided in this Code. ?or purpose of computing the net profits subject to forfeiture in accordance with Articles ;6% 1o. 345 and @6% 1o. 345% the said profits shall be the increase in value between the market value of the communit" propert" at the time of the celebration of the marriage and the market value at the time of its dissolution.

Art. 4&. The subse*uent marriage re erred to in the preceding #rticle shall be automatically terminated by the recording o the a idavit o reappearance o the absent spouse, unless there is a &udgment annulling the previous marriage or declaring it void a5 initio. # sworn statement o the act and circumstances o reappearance shall be recorded in the civil registry o the residence o the parties to the subse*uent marriage at the instance o any interested person, with due notice to the spouses o the subse*uent marriage and without pre&udice to the act o reappearance being &udicially determined in case such act is disputed. Art. 4). The termination o the subse*uent marriage re erred to in the preceding #rticle shall produce the ollowing e ects6 728 The absolute community o property or the con&ugal partnership, as the case may be, shall be dissolved and li*uidated, but i either spouse contracted said marriage in bad aith, his or her share o the net pro its o the community property or con&ugal partnership property shall be or eited in avor o the common children or, i there are none, the children o the guilty spouse by a previous marriage or in de ault o children, the innocent spouse"

3(5

The presumptive legitimes of the common children shall be delivered upon partition% in accordance with Article ('.

3@5 =nless otherwise agreed upon b" the parties% in the partition of the properties% the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majorit" of the common children choose to remain. Children below the age of seven "ears are deemed to have chosen the mother% unless the court has decided otherwise. +n case there in no such majorit"% the court shall decide% taking into consideration the best interests of said children. #rticle 1.2 enumerates the steps in li*uidation6 1. 4nventory 3 lists 1. 4nventory o community property 2. 4nventory o separate property o the wi e 3. 4nventory o separate property o the husband. 2. =ayment o Community 'ebts First, pay out o community assets 4 not enough, husband and wi e are solidarily liable with their separate property.

3. 'elivery to each spouse his or her separate property i any. ;. 'ivision o the net community assets ,.7E: There are special rules regarding the amily home. 0. 'elivery o presumptive legitimes i any to the children The presumptive legitimes are given in the ollowing instances6 1. 'eath o either spouse 7#rticle 1.38 2. 5egal +eparation 7#rticles 13 and 1;8 3. #nnulment 7#rticles 0. 028 ;. Iudicial +eparation o =roperty 7#rticles 13; 13?8 0. )eappearance o the absent spouse which terminates the 2 7#rticle ;38
nd

marriage

Art. 100. The separation in fact between husband and wife shall not affect the regime of absolute communit" e,cept that* 3'5 The spouse who leaves the conjugal home or refuses to live therein% without just cause% shall not have the right to be supported2

345 /hen the consent of one spouse to an" transaction of the other is re-uired b" law% judicial authori$ation shall be obtained in a summar" proceeding2 365 +n the absence of sufficient communit" propert"% the separate propert" of both spouses shall be solidaril" liable for the

support of the famil". The spouse present shall% upon proper petition in a summar" proceeding% be given judicial authorit" to administer or encumber an" specific separate propert" of the other spouse and use the fruits or proceeds thereof to satisf" the latters share. +eparation de "acto does not dissolve the #C=.

Art. 101. +f a spouse without just cause abandons the other or fails to compl" with his or her obligations to the famil"% the aggrieved spouse ma" petition the court for receivership% for judicial separation of propert" or for authorit" to be the sole administrator of the absolute communit"% subject to such precautionar" conditions as the court ma" impose. The obligations to the famil" mentioned in the preceding paragraph refer to marital% parental or propert" relations. A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give an" information as to his or her whereabouts shall be pri a .acie presumed to have no intention of returning to the conjugal dwelling. 4 a spouse abandons the other spouse without &ust cause or ails to comply with his or marital obligations, the aggrieved spouse may petition the court or the ollowing6 1. )eceivership 2. Iudicial separation o property 3. #uthority to be the sole administrator. #bandonment occurs when one leaves the con&ugal dwelling without intention o returning. &resu ption o. A'an+on ent: When the spouse has le t the con&ugal dwelling or a period o 3 months without giving in ormation as to his whereabouts.

Art. 104. /henever the li-uidation of the communit" properties of two or more marriages contracted b" the same person before the effectivit" of this Code is carried out simultaneousl"% the respective capital% fruits and income of each communit" shall be determined upon such proof as ma" be considered according to the rules of evidence. +n case of doubt as to which communit" the e,isting properties belong% the same shall be divided between the different communities in proportion to the capital and duration of each. #rticle 1.; will hardly ever occur. +(ip this.

C. *on6u/al &artners"ip o. Gains Enowing the C=2 is important. Under the Civil Code, this was the preponderant property regime. +ince a lot o marriages too( place be ore the e ectivity o the Family Code #ugust 3, 1A@@ many property regimes are C=2.

Art. 105. +n case the future spouses agree in the marriage settlements that the regime of conjugal partnership gains shall govern their propert" relations during marriage% the provisions in this Chapter shall be of supplementar" application. The provisions of this Chapter shall also appl" to conjugal partnerships of gains alread" established between spouses before the effectivit" of this Code% without prejudice to vested rights alread" ac-uired in accordance with the Civil Code or other laws% as provided in Article 4(@. The regime o C=2 applies6 1. 4n case the uture spouse agree on this regime in their marriage settlement, their property relations will be governed by their agreement with the Family Code suppletorily applicable. 2. C=2s be ore the a ectivity o the Family Code, without pre&udice to vested rights Art. 106. =nder the regime of conjugal partnership of gains% the husband and wife place in a common fund the proceeds% products% fruits and income from their separate properties and those ac-uired b" either or both spouses through their efforts or b" chance% and% upon dissolution of the marriage or of the partnership% the net gains or benefits obtained b" either or both spouses shall be divided e-uall" between them% unless otherwise agreed in the marriage settlements. The husband and wi e place in a common und6 1. 4ncome o their separate properties 2. ,verything ac*uired by them through their e orts 7whether singly or &ointly8 3. ,verything ac*uired by them through chance 7the winnings rom gambling, hidden treasure, those ac*uired rom hunting8 The spouses are not co/owners o the con&ugal properties during the marriage and cannot alienate the supposed S interest o each in the said properties. The interest o the spouses in the con&ugal properties is only inchoate or a mere e$pectancy and does not ripen into title until it appears a ter the dissolution and li*uidation o the partnership that there are net assets 7De Ansaldo vs. +$eri"" o" 9anila8.

Art. 107. The rules provided in Articles BB and BC shall also appl" to conjugal partnership of gains. Art. 108. The conjugal partnership shall be governed b" the rules on the contract of partnership in all that is not in conflict with what is e,pressl" determined in this Chapter or b" the spouses in their marriage settlements. The rules on partnership shall be applied in a suppletory manner. The following shall be the e,clusive propert" of each

Art. 109. spouse*

3'5 That which is brought to the marriage as his or her own2 345 That which each ac-uires during the marriage b" gratuitous title2 365 That which is ac-uired b" right of redemption% b" barter or b" e,change with propert" belonging to onl" one of the spouses2 and 3;5 That which is purchased with e,clusive mone" of the wife or of the husband. #rticle 1.A enumerates the e$clusive property o spouses6 1. =roperty brought to the marriage as his or her own +trictly spea(ing paraphernal property re ers to the e$clusive property o the wi e while capital is the e$clusive property o the husband.

2. =roperty which each spouse ac*uires during the marriage by gratuitous title 2ratuitous title is either6 1. 9y succession 2. 9y donation #C= also has a similar provision. 3. =roperty which is ac*uired by right o redemption, by barter or e$change with property belonging to only one o the spouses" and #rticle 1.A 738 is illustrated as ollows6 The wi e owns e$clusively a piece o land. The wi e sells such land with the right to repurchase it. The wi e redeems the money using con&ugal unds. Under #rticle 1.A 738, the property is still paraphernal as the right o redemption belongs to the wi e. The act that con&ugal unds were used is irrelevant in that

Art. //. The absolute community o property between spouses shall commence at the precise moment that the marriage is celebrated. #ny stipulation, e$press or implied, or the commencement o the community regime at any other time shall be void.

Art. /2. !o waiver o rights, shares and e ects o the absolute community o property during the marriage can be made e$cept in case o &udicial separation o property. When the waiver ta(es place upon a &udicial separation o property, or a ter the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in #rticle ??. The creditors o the spouse who made such waiver may petition the court to rescind the waiver to the e$tent o the amount su icient to cover the amount o their credits.

the wi e must li*uidate such debt to the common li*uidation o the property regime.

und upon the

#nother illustration o #rticle 1.A 738 is as ollows6 The wi e owns e$clusively a lot in 9F Fomes in K.C. The wi e decides to sell the lot and gets money in e$change. The money is paraphernal property.

;. =roperty which is purchased with e$clusive money o the wi e or o the husband The rule is the same or #C= although there is no e$press provision. possession%

Art. 110. The spouses retain the ownership% administration and enjo"ment of their e,clusive properties.

8ither spouse ma"% during the marriage% transfer the administration of his or her e,clusive propert" to the other b" means of a public instrument% which shall be recorded in the registr" of propert" of the place the propert" is located. Art. 111. A spouse of age ma" mortgage% encumber% alienate or otherwise dispose of his or her e,clusive propert"% without the consent of the other spouse% and appear alone in court to litigate with regard to the same. Art. 112. The alienation of an" e,clusive propert" of a spouse administered b" the other automaticall" terminates the administration over such propert" and the proceeds of the alienation shall be turned over to the owner.spouse. Art. 113. Propert" donated or left b" will to the spouses% jointl" and with designation of determinate shares% shall pertain to the donee. spouses as his or her own e,clusive propert"% and in the absence of designation% share and share alike% without prejudice to the right of accretion when proper. Art. 114. +f the donations are onerous% the amount of the charges shall be borne b" the e,clusive propert" of the donee spouse% whenever the" have been advanced b" the conjugal partnership of gains. Art. 115. )etirement benefits% pensions% annuities% gratuities% usufructs and similar benefits shall be governed b" the rules on gratuitous or onerous ac-uisitions as ma" be proper in each case. Art. 116. All propert" ac-uired during the marriage% whether the ac-uisition appears to have been made% contracted or registered in the name of one or both spouses% is presumed to be conjugal unless the contrar" is proved. &resu ption: #ll property ac*uired during marriage is presumed to be con&ugal 7but the contrary may be proved8. Art. 117. The following are conjugal partnership properties*

3'5 Those ac-uired b" onerous title during the marriage at the e,pense of the common fund% whether the ac-uisition be for the partnership% or for onl" one of the spouses2 345 365 Those obtained from the labor% industr"% work or profession of either or both of the spouses2 The fruits% natural% industrial% or civil% due or received during the marriage from the common propert"% as well as the net fruits from the e,clusive propert" of each spouse2

#ccording to =ro essor 9alane, #rticle 11? 738 is inaccurate. There is no problem i the ruits come rom the con&ugal property. The problem arises when the #ruits arise #rom the spouses separate properties. For ruits arising rom the separate properties o the spouses to be considered con&ugal, one must loo( at when the ruits are due and not when the ruits are received. For e$ample, # lends = 1,...,... to 9 at 2.J interest payable every *uarter. 9 is supposed to pay interest on >arch, Iune, +ept, and 'ec. 9 did not pay the interest due on >arch. # gets married to C. 9 inally pays the interests or the months o >arch and Iune on Iune. The interest or >arch is e$clusive property while the interest or Iune is con&ugal property. The interest or >arch is e$clusive property because the test is not when # and C receives the ruits. 4t is when the ruits are due. 4n this case, the ruits were due on >arch be ore the marriage between # and C. That is why the interest or Iune is con&ugal property. 3;5 The share of either spouse in the hidden treasure which the law awards to the finder or owner of the propert" where the treasure is found2

3(5 Those ac-uired through occupation such as fishing or hunting2 3@5 !ivestock e,isting upon the dissolution of the partnership in e,cess of the number of each kind brought to the marriage b" either spouse2 and 3A5 Those which are ac-uired b" chance% such as winnings from gambling or betting. 7owever% losses therefrom shall be borne e,clusivel" b" the loser.spouse. Art. 118. Propert" bought on installments paid partl" from e,clusive funds of either or both spouses and partl" from conjugal funds belongs to the bu"er or bu"ers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. +n either case% an" amount advanced b" the partnership or b" either or both spouses shall be reimbursed b" the owner or owners upon li-uidation of the partnership. #rticle 11@ is actually #rticle 11? 7@8. 7est: When did the ownership vest in the buyer% The source o the unds is irrelevant. For e$ample, # who is single, buys on installment a lot in Tagaytay. # has to pay 1. monthly installments. The contract provides that ownership would vest upon the ull payment o the installments. # had already paid 2. monthly

installments. # gets married to 9. # ter that # pays the remaining ;. monthly installments using con&ugal unds. The property is con&ugal ollowing #rt. 11@. The irst 2. monthly installments is a credit o # against the property regime. The converse is also true. The relevance o the unds is only or accounting purposes. Art. 119. /henever an amount or credit pa"able within a period of time belongs to one of the spouses% the sums which ma" be collected during the marriage in partial pa"ments or b" installments on the principal shall be the e,clusive propert" of the spouse. 7owever% interests falling due during the marriage on the principal shall belong to the conjugal partnership. Art. 120. The ownership of improvements% whether for utilit" or adornment% made on the separate propert" of the spouses at the e,pense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership% or to the original owner.spouse% subject to the following rules* /hen the cost of the improvement made b" the conjugal partnership and an" resulting increase in value are more than the value of the propert" at the time of the improvement% the entire propert" of one of the spouses shall belong to the conjugal partnership% subject to reimbursement of the value of the propert" of the owner.spouse at the time of the improvement2 otherwise% said propert" shall be retained in ownership b" the owner.spouse% likewise subject to reimbursement of the cost of the improvement. +n either case% the ownership of the entire propert" shall be vested upon the reimbursement% which shall be made at the time of the li-uidation of the conjugal partnership. This is (nown as reverse accession. 4n this situation, an improvement which is paid or by con&ugal unds is built on land which is e$clusively owned by one o the spouses. 4n ;altex vs. ?elias, the +upreme Court said that be ore #rticle 12. could be applied, it is essential that the land must be owned by one o the spouses be ore the improvement is introduced. The general rule is that the accessory ollows the principal. Thus, normally the improvement would ollow the improvement. 4n #rticle 12., this is may not be the case, and it may be that the land would #ollow the improvement. Thats why its called reverse accession. )ules6 1. )everse accession / i the cost o the improvement and the plus value are more than the value o the principal property at the time o the improvement. Thus, the entire property becomes con&ugal. For e$ample, a lot is worth =1,...,.... # structure worth =@..,... was built. Thus, the total cost o the separate property and the improvement is =1,@..,.... Fowever due to the building o the improvement, the value o the entire property increases by =3..,... the plus value. Thus, the entire property is worth =2,1..,.... 4n this

case, the entire property becomes con&ugal. The cost o the improvement 7=@..,...8 and the plus value 7=3..,...8 is more than the cost o the land 7=1,...,...8. 2. #ccession i the cost o the improvement and the plus value are less than the value o the principal property at the time the improvement. Thus, the entire property becomes e$clusive property o the spouse. 3. -wnership o the entire property shall vest on the owner/spouse or the partnership as the case upon the reimbursement o the improvement. ;. )eimbursement time is the time o the li*uidation o the C=2. 0. The value to be paid at the li*uidation is the value at the time o the improvement 7This overrules Padilla vs. Padilla8. 2&lus value re#ers to what the improvement contributes to the increase in the value o the whole thing. &ro'le Areas: 1. +uppose the improvement is destroyed be ore reimbursement. Will #rticle 12. apply% #rticle 12. applies only on the assumption that the improvement e$ists at the time o li*uidation. 4 the property is destroyed be ore the li*uidation, the #rticle '-( wont apply. In the case o# Padilla vs. Paterno, the +C said that land never became con&ugal because the con&ugal improvements were destroyed be ore payment could be e ected. 2. 'oes the vesting o ownership in reverse accession retroact to the time o the building o the improvement% The law is not clear. Charges upon the Conjugal Partnership of Gains The charges upon the C=2 are parallel to the charges on the #C=. Art. 121. The conjugal partnership shall be liable for* 3'5 The support of the spouse% their common children% and the legitimate children of either spouse2 however% the support of illegitimate children shall be governed b" the provisions of this Code on >upport2 345 All debts and obligations contracted during the marriage b" the designated administrator.spouse for the benefit of the conjugal partnership of gains% or b" both spouses or b" one of them with the consent of the other2 365 Debts and obligations contracted b" either spouse without the consent of the other to the e,tent that the famil" ma" have benefited2 All ta,es% liens% charges% and e,penses% including major or minor repairs upon the conjugal partnership propert"2 All ta,es and e,penses for mere preservation made during the marriage upon the separate propert" of either spouse2

3;5 3(5

There is no re*uirement here that it be used by the amily since the C=2 is the usu ructuary o the property.

3@5 8,penses to enable either spouse to commence or complete a professional% vocational% or other activit" for self.improvement2 3A5 Antenuptial debts of either spouse insofar as the" have redounded to the benefit of the famil"2

3B5 The value of what is donated or promised b" both spouses in favor of their common legitimate children for the e,clusive purpose of commencing or completing a professional or vocational course or other activit" for self. improvement2 and 3C5 8,penses of litigation between the spouses unless the suit is found to groundless. +f the conjugal partnership is insufficient to cover the foregoing liabilities% the spouses shall be solidaril" liable for the unpaid balance with their separate properties. The #rticles 122 to 120 have counterpart provisions in the #C=. CPG P)#<+>+#1 C#=1T8)PA)T ACP P)#<+>+#1

Art. 122. The pa"ment of Art. 94. The absolute personal debts contracted b" the communit" of propert" shall be liable husband or the wife before or during for* the marriage shall not be charged to 3C5 Antenuptial debts of the conjugal properties partnership either spouse other e,cept insofar as the" redounded to than those falling under the benefit of the famil". paragraph 3A5 of this Article% the support of 1either shall the fines illegitimate children of either and pecuniar" indemnities imposed spouse% and liabilities incurred upon them be charged to the b" either spouse b" reason of partnership. a crime or a -uasi.delict% in 7owever% the pa"ment of case of absence or personal debts contracted b" either insufficienc" of the e,clusive spouse before the marriage% that of propert" of the debtor.spouse% fines and indemnities imposed upon the pa"ment of which shall be them% as well as the support of considered as advances to be illegitimate children of either spouse% deducted from the share of ma" be enforced against the the debtor.spouse partnership assets after the upon li-uidation of the responsibilities enumerated in communit"2 the preceding Article have been covered% if the spouse who is bound should have no e,clusive propert" or if it should be insufficient2 but at the time of the li-uidation of the partnership% such spouse shall be charged for what has beenpaid for the purpose above. mentioned. Art. 123. /hatever ma" be lost Art. 95. /hatever ma" be lost during the marriage in an" game of during the marriage in an" game of chance or in betting% sweepstakes% or chance% betting% sweepstakes% or an"

an" other kind of gambling whether permitted or prohibited b" law% shall be borne b" the loser and shall not be charged to the con6u/al partners"ip but an" winnings therefrom shall form part of the con6u/al partners"ip propert!. Art. 124. The administration and enjo"ment of the con6u/al partners"ip shall belong to both spouses jointl". +n case of disagreement% the husband9s decision shall prevail% subject to recourse to the court b" the wife for proper remed"% which must be availed of within five "ears from the date of the contract implementing such decision. +n the event that one spouse is incapacitated or otherwise unable to participate in the administration of the con6u/al properties% the other spouse ma" assume sole powers of administration. These powers do not include disposition or encumbrance without authorit" of the court or the written consent of the other spouse. +n the absence of such authorit" or consent% the disposition or encumbrance shall be void. 7owever% the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person% and ma" be perfected as a binding contract upon the acceptance b" the other spouse or authori$ation b" the court before the offer is withdrawn b" either Art. or both offerors. 125. 1either spouse ma" donate an" con6u/al partners"ip propert! without the consent of the other. 7owever% either spouse ma"% without the consent of the other% make moderate donations from the con6u/al partners"ip propert! for charit" or on occasions of famil" rejoicing or famil" distress.

other kind of gambling% whether permitted or prohibited b" law% shall be borne b" the loser and shall not be charged to the co unit! but an" winnings therefrom shall form part of the co unit! propert!.

Art. C@. The administration and enjo"ment of the co unit! propert! shall belong to both spouses jointl". +n case of disagreement% the husband9s decision shall prevail% subject to recourse to the court b" the wife for proper remed"% which must be availed of within five "ears from the date of the contract implementing such decision. +n the event that one spouse is incapacitated or otherwise unable to participate in the administration of the co on properties% the other spouse ma" assume sole powers of administration. These powers do not include disposition or encumbrance without authorit" of the court or the written consent of the other spouse. +n the absence of such authorit" or consent% the disposition or encumbrance shall be void. 7owever% the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person% and ma" be perfected as a binding contract upon the acceptance b" the other spouse or authori$ation b" the court before theoffer is withdrawn b" either or both offerors. Art. 98. 1either spouse ma" donate an" co unit! propert! without the consent of the other. 7owever% either spouse ma"% without the consent of the other% make moderate donations from the co unit! propert! for charit" or on occasions of famil" rejoicing or famil" distress.

The rules on dissolution are the same.

CPG P)#<+>+#1 Art. 126. The partners"ip terminates* 3'5 =pon the spouse2 death con6u/al of either co

C#=1T8)PA)T ACP P)#<+>+#1 Art. 99. The unit! terminates* 3'5 =pon the spouse2 death a'solute of either

345 /hen there is a decree of legal separation2 365 /hen the marriage is annulled or declared void2 or

345 /hen there is a decree of legal separation2 365 /hen the marriage is annulled or declared void2 or 3;5 +n case of judicial separation of propert" during the marriage under Article '6; to '6B.

3;5 +n case of judicial separation of propert" during the marriage under Articles '6; to '6B.

5i(e #rticle AA 738, #rticle 121 738 is incorrect. The marriage regime in a void marriage never e$isted. There is nothing to dissolve. The special rules o co/ownership shall govern. Art. 100. The separation in fact between husband and wife shall not affect the regime of a'solute co unit! e,cept that* 3'5 The spouse who leaves the conjugal home or refuses to live therein% without just cause% shall not have the right to be supported2 345 /hen the consent of one spouse to an" transaction of the other is re-uired b" law% judicial authori$ation shall be obtained in a summar" proceeding2 365 +n the absence of sufficient co unit! propert!% the separate propert" of both spouses shall be solidaril" liable for the support of the famil". The spouse present shall% upon proper petition in a summar" proceeding% be given judicial authorit" to administer or encumber an" specific separate propert" of the other spouse and use the fruits or proceeds thereof to satisf" the latters share.

Art. 127. The separation in fact between husband and wife shall not affect the regime of con6u/al partners"ip$ e,cept that* 3'5 The spouse who leaves the conjugal home or refuses to live therein% without just cause% shall not have the right to be supported2 345 /hen the consent of one spouse to an" transaction of the other is re-uired b" law% judicial authori$ation shall be obtained in a summar" proceeding2 365 +n the absence of sufficient con6u/al partners"ip propert!% the separate propert" of both spouses shall be solidaril" liable for the support of the famil". The spouse present shall% upon petition in a summar" proceeding% be given judicial authorit" to administer or encumber an" specific separate propert" of the other spouse and use the fruits or proceeds thereof to satisf" the latters share.

Art. 128. +f a spouse without just cause abandons the other or fails to compl" with his or her obligation to the famil"% the aggrieved spouse ma" petition the court for receivership% for judicial separation of propert"% or for authorit" to be the sole administrator of the con6u/al partners"ip propert!% subject to such precautionar" conditions as the court ma" impose.

Art. 101. +f a spouse without just cause abandons the other or fails to compl" with his or her obligations to the famil"% the aggrieved spouse ma" petition the court for receivership% for judicial separation of propert" or for authorit" to be the sole administrator of the a'solute co unit!% subject to such precautionar" conditions as the court ma" impose.

The obligations to the famil" The obligations to the famil" mentioned in the preceding paragraph mentioned in the preceding paragraph refer to marital% parental or propert" refer to marital% parental or propert" relations. relations. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugaldwelling for a period of three months or has failed within the same period to give an" information as to his or her whereabouts shall be pri a .acie presumed to have no intention of returning to the conjugal dwelling. A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give an" information as to his or her whereabouts shallbe pri a .acie presumed to have no intention of returning to the conjugal dwelling.

Art. 129. =pon the dissolution Art. 102. =pon dissolution of of the con6u/al partners"ip re/i e% the the a'solute co unit! re/i e% the following procedure shall appl"* following procedure shall appl"* 3'5 An inventor" shall be prepared% listing separatel" all the properties of the con6u/al partners"ip and the e,clusive properties of each spouse. 345 Amounts advanced b" the con6u/al partners"ip in pa"ment of personal debts and obligations of either spouse shall be credited to the con6u/al partners"ip as an asset thereof. 132 8ach spouse shall be reimbursed for the use of his or her e,clusive funds in the ac-uisition of propert" or for the value of his or her e,clusive propert"% the ownership of which has been vested b" law in the con6u/al 3'5 An inventor" shall be prepared% listing separatel" all the properties of the a'solute co unit! and the e,clusive properties of each spouse. 345 The debts and obligations of the a'solute co unit! shall be paid out of its assets. +n case of insufficienc" of said assets% the spouses shall be solidaril" liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article C;. 365 /hatever remains of the e,clusive properties of the spouses shall thereafter be delivered to each of them. 3;5 The net remainder of the

partners"ip. 3;5 The debts and obligations of the con6u/al partners"ip shall be paid out of the con6u/al assets. +n case of insufficienc" of said assets% the spouses shall be solidaril" liable for the unpaid balance with their separate properties% in accordance with the provisions of paragraph 345 of Article '4'. 3(5 /hatever remains of the e,clusive properties of the spouses shall thereafter be delivered to each of them. 3@5 =nless the owner had been indemnified from whatever source% the loss or deterioration of movables used for the benefit of the famil"% belonging to either spouse% even due to fortuitous event% shall be paid to said spouse from the con6u/al .un+s% if an". 3A5 The net remainder of the con6u/al partners"ip properties shall constitute the profits% which shall be divided e-uall" between husband and wife% unless a different proportion or division was agreed upon in the marriage settlements or unless there has been a voluntar" waiver or forfeiture of such share as provided in this Code. 3B5 The presumptive legitimes of the common children shall be delivered upon the partition in accordance with Article ('. 3C5 +n the partition of the properties% the conjugal dwelling and the lot on which it is situated shall% unless otherwise agreed upon b" the parties% be adjudicated to the spouse with whom the

majorit" common

of

the

properties of the a'solute co unit! shall constitute its net assets% which shall be divided e-uall" between husband and wife% unless a different proportion or division was agreed upon in the marriage settlements% or unless there has been a voluntar" waiver of such share provided in this Code. ?or purpose of computing the net profits subject to forfeiture in accordance with Articles ;6% 1o. 345 and @6% 1o. 345% the said profits shall be the increase in value between the market value of the co unit! propert! at the time of the celebration of the marriage and the market value at the time of its dissolution. 3(5 The presumptive legitimes the common children shall delivered upon partition% accordance with Article ('. of be in

3@5 =nless otherwise agreed upon b" the parties% in the partition of the properties% the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majorit" of the common children choose to remain. Children below the age of seven "ears are deemed to have chosen the mother% unless the court has decided otherwise. +n case there in no such majorit"% the court shall decide% taking into consideration the best interests of said children.

children choose to remain. Children below the age of seven "ears are deemed to have chosen the mother% unless the court has decided otherwise. +n case there is no such majorit"% the court shall decide% taking into consideration the best interests of said children. #rticles 12A and 1.2 are counterparts although there are di erences. Art. 103. =pon the termination of the marriage b" death% the co unit! propert! shall be li-uidated in the same proceeding for the settlement of the estate of the deceased. +f no judicial settlement proceeding is instituted% the surviving spouse shall li-uidate the co unit! propert! either judiciall" or e,tra. judiciall" within si, months from the death of the deceased spouse. +f upon the lapse of the si, months period% no li-uidation is made% an" disposition or encumbrance involving the co unit! propert! of the terminated marriage shall be void.

Art. 130. =pon the termination of the marriage b" death% the con6u/al partners"ip propert" shall be li-uidated in the same proceeding for the settlement of the estate of the deceased. +f no judicial settlement proceeding is instituted% the surviving spouse shall li-uidate the con6u/al partners"ip propert! either judiciall" or e,tra.judiciall" within si, months from the death of the deceased spouse. +f upon the lapse of the si,. month period no li-uidation is made% an" disposition or encumbrance involving the con6u/al partners"ip propert! of the terminated marriage shall be void.

>hould the surviving spouse contract a subse-uent marriage >hould the surviving without compliance with the foregoing spouse contract a re-uirements% a mandator" regime of subse-uent marriage without complete separation of propert" shall compliance with the foregoing govern the propert" relations of the re-uirements% a mandator" regime of subse-uent marriage. complete separation of propert" shall govern the propert" relations of the subse-uent Art. marriage. 131. /henever the Art. 104. /henever the li-uidation of the con6u/al partners"ip li-uidation of the co unit! properties of two or more marriages properties of two or more marriages contracted b" the same person before contracted b" the same person before the effectivit" of this Code is carried the effectivit" of this Code is carried out simultaneousl"% the respective out simultaneousl"% the respective capital% fruits and income of each capital% fruits and income of each partners"ip shall be determined upon co unit! shall be determined upon such proof as ma" be considered such proof as ma" be considered according to the rules of evidence. +n according to the rules of evidence. +n case of doubt as to which partnership case of doubt as to which communit" the e,isting properties belong% the e,isting properties belong% the the

same shall be divided between the same shall be divided between different partners"ips in proportion to the different co unities in the capital and duration of each. proportion to the capital and duration of each. +teps in 5i*uidation 1. 4nventory o the C=2 assets. 2. )estitution o advances made to each spouse 7i.e.! #rticle 122, :3 8 3. =ayment o debts to each spouse 7i.e.! #rticle 12. 8 ;. =ayment o obligations to 3
rd

parties

0. 'elivery o e$clusive properties 1. =ayment o losses and deterioration o movables belonging to each spouse ?. 'elivery o presumptive legitimes @. 'ivision D. 5eparation o. &ropert! o. t"e 5pouses an+ A+ &ropert! '! ,ne 5pouse Durin/ t"e 0arria/e inistration o. *o on

+eparation o the property o the spouses and the administration o common property by one spouse during the marriage can ta(e place in both #C= and C=2. # petition may be iled or the dissolution o the #C= or the C=2 by6 1. Foth spouses* voluntar" dissolution 7#rticles 13; and 1318 Art. 134. +n the absence of an e,press declaration in the marriage settlements% the separation of propert" between spouses during the marriage shall not take place e,cept b" judicial order. >uch judicial separation of propert" ma" either be voluntar" or for sufficient cause.

Art. *&&! (). Fowever, the payment o personal debts contracted by either spouse be ore the marriage, that o ines and indemnities imposed upon them, as well as the support o illegitimate children o either spouse, may be en orced against the partnership assets a ter the responsibilities enumerated in the preceding #rticle have been covered, i the spouse who is bound should have no e$clusive property or i it should be insu icient" but at the time o the li*uidation o the partnership, such spouse shall be charged or what has been paid or the purpose above/ mentioned.

Art. *&0. The ownership o improvements, whether or utility or adornment, made on the separate property o the spouses at the e$pense o the partnership or through the acts or e orts o either or both spouses shall pertain to the con&ugal partnership, or to the original owner/ spouse, sub&ect to the ollowing rules6 When the cost o the improvement made by the con&ugal partnership and any resulting increase in value are more than the value o the property at the time o the improvement, the entire property o one o the spouses shall belong to the con&ugal partnership, sub&ect to reimbursement o the value o the property o the owner/spouse at the time o the improvement" otherwise, said property shall be retained in ownership by the owner/spouse, li(ewise sub&ect to reimbursement o the cost o the improvement. 4n either case, the ownership o the entire property shall be vested upon the reimbursement, which shall be made at the time o the li*uidation o the con&ugal partnership.

Art. 136. The spouses ma" jointl" file a verified petition with the court for the voluntar" dissolution of the absolute communit" or the conjugal partnership of gains% and for the separation of their common properties. All creditors of the absolute communit" or of the conjugal partnership of gains% as well as the personal creditors of the spouse% shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniar" interest. There are no need or causes in a voluntary dissolution.

2. #ne spouse* petition for sufficient cause 7#rticle 1308 Art. 135. An" of the following shall be considered sufficient cause for judicial separation of propert"* 3'5 That the spouse of the petitioner has been sentenced to a penalt" which carries with it civil interdiction2

345 That the spouse of the petitioner has been judiciall" declared an absentee2 365 That loss of parental authorit" of the spouse of petitioner has been decreed b" the court2

3;5 That the spouse of the petitioner has abandoned the latter or failed to compl" with his or her obligations to the famil" as provided for in Article 'D'2 3(5 That the spouse granted the power of administration in the marriage settlements has abused that power2 and 3@5 That at the time of the petition% the spouses have been separated in fact for at least one "ear and reconciliation is highl" improbable.

+n the cases provided for in 1umbers 3'5% 345 and 365% the presentation of the final judgment against the guilt" or absent spouse shall be enough basis for the grant of the decree of judicial separation of propert". Causes are re*uired or a petition or su icient cause. #rticle 130 738 must be ta(en in relation with #rticles 22A 7;8 #rticles 231 and 232 .

and

Art. &&2. Unless subse*uently revived by a inal &udgment, parental authority also terminates6 7;8 Upon inal &udgment o a competent court divesting the party concerned o parental authority"

Art. &)*. The court in an action iled or the purpose in a related case may also suspend parental authority i the parent or the person e$ercising the same6 718 Treats the child with e$cessive harshness or cruelty" 728 2ives the child corrupting orders, counsel or e$ample" 738 Compels the child to beg" or

The de inition o abandonment in #rticle 130 7;8 is ound in #rticles 1.1 and 12@ . Under #rticle 130 718, the spouse must wait or 1 year. # ter 1 year, the spouse can ile the petition or su icient cause. #lso reconciliation must be highly improbable.

The separation o the property o the spouses may not be done e$tra&udicially even i the spouses agree. Court intervention is necessary. # ter the decree o separation, the parties can revert bac( to their original regime by iling a motion in court 7#rticle 1;18.

Art. 137. #nce the separation of propert" has been decreed% the absolute communit" or the conjugal partnership of gains shall be li-uidated in conformit" with this Code. During the pendenc" of the proceedings for separation of propert"% the absolute communit" or the conjugal partnership shall pa" for the support of the spouses and their children. Art. 138. After dissolution of the absolute communit" or of the conjugal partnership% the provisions on complete separation of propert" shall appl". Art. 139. The petition for separation of propert" and the final judgment granting the same shall be recorded in the proper local civil registries and registries of propert". Art. 140. The separation of propert" shall not prejudice the rights previousl" ac-uired b" creditors. Art. 141. The spouses ma"% in the same proceedings where separation of propert" was decreed% file a motion in court for a decree reviving the propert" regime that e,isted between them before the separation of propert" in an" of the following instances* 3'5 /hen the civil interdiction terminates2

7;8 +ub&ects the child or allows him to be sub&ected to acts o lasciviousness. The grounds enumerated above are deemed to include cases which have resulted rom culpable negligence o the parent or the person e$ercising parental authority. 4 the degree o seriousness so warrants, or the wel are o the child so demands, the court shall deprive the guilty party o parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revo(ed and the parental authority revived in a case iled or the purpose or in the same proceeding i the court inds that the cause there or has ceased and will not be repeated. Art. &)&. 4 the person e$ercising parental authority has sub&ected the child or allowed him to be sub&ected to se$ual abuse, such person shall be permanently deprived by the court o such authority. # spouse is deemed to have abandoned the other when her or she has le t the con&ugal dwelling without intention o returning. The spouse who has le t the con&ugal dwelling or a period o three months or has ailed within the same period to give any in ormation as to his or her whereabouts shall be prima acie presumed to have no intention o returning to the con&ugal dwelling.

345 /hen the absentee spouse reappears2 365 /hen the court% being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power% authori$es the resumption of said administration2 3;5 /hen the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other2 3(5 /hen parental authorit" is judiciall" restored to the spouse previousl" deprived thereof2 3@5 /hen the spouses who have separated in fact for at least one "ear% reconcile and resume common life2 or 3A5 /hen after voluntar" dissolution of the absolute communit" of propert" or conjugal partnership has been judiciall" decreed upon the joint petition of the spouses% the" agree to the revival of the former propert" regime. 1o voluntar" separation of propert" ma" thereafter be granted. governed b"

The revival of the former propert" regime shall be Article @A.

4 separation was by voluntary dissolution, the parties may agree to revert bac( to their original property regime. Fowever, i they do so, no voluntary separation o property may be granted again.

Art. 142. The administration of all classes of e,clusive propert" of either spouse ma" be transferred b" the court to the other spouse* 3'5 /hen one spouse becomes the guardian of the other2 345 /hen one spouse is judiciall" declared an absentee2 365 /hen one spouse is sentenced to a penalt" which carries with it civil interdiction2 or 3;5 /hen one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. +f the other spouse is not -ualified b" reason of incompetence% conflict of interest% or an" other just cause% the court shall appoint a suitable person to be the administrator. This article enumerates the instances when the court may trans er the administration o all classes o e$clusive property o either spouse. The ollowing are the instances in when there can be a sole administrator o the con&ugal property6 1. 4 such is stipulated in the marriage settlement 7#rticle ?; 8 2. 4 the other spouse is unable to participate 7#rticles A1, :2 and 12;, :2 8
<

Art. 14. The property relationship between husband and wi e shall be governed in the ollowing order6 718 9y marriage settlements e$ecuted be ore the marriage

<

4n the event that one spouse is incapacitated or otherwise unable to participate in the administration o the common 7con&ugal8 properties, the other spouse may assume sole powers o

3. The court may order such in case o abandonment 7#rticles 1.1 and 12@ 8 ;. 4 the spouses agree to such an arrangement during marriage. Fowever, rd in order to a ect 3 persons, such agreement must be registered. 8. Re/i e o. 5eparation o. &ropert!

Art. 143. >hould the future spouses agree in the marriage settlements that their propert" relations during marriage shall be governed b" the regime of separation of propert"% the provisions of this Chapter shall be suppletor". Art. 144. >eparation of propert" ma" refer to present or future propert" or both. +t ma" be total or partial. +n the latter case% the propert" not agreed upon as separate shall pertain to the absolute communit". Art. 145. 8ach spouse shall own% dispose of% possess% administer and enjo" his or her own separate estate% without need of the consent of the other. To each spouse shall belong all earnings from his or her profession% business or industr" and all fruits% natural% industrial or civil% due or received during the marriage from his or her separate propert". Art. 146. Foth spouses shall bear the famil" e,penses in proportion to their income% or% in case of insufficienc" or default thereof% to the current market value of their separate properties. The liabilities of the spouses to creditors for famil" e,penses shall% however% be solidar". ?. &ropert! Re/i e o. 8nions 9it"out 0arria/e

$ccording to &ro#essor %alane, we should not use the term 2common /law spouses simply because we are not a common law country. For #rticles 1;? and 1;@ to apply, the persons living together as husband and wi e must still be o di erent se$es.

Art. 147. /hen a man and a woman who are capacitated to marr" each other% live e,clusivel" with each other as husband and wife without the benefit of marriage or under a void marriage% their wages and salaries shall be owned b" them in e-ual shares and the propert"

administration. These powers do not include disposition or encumbrance without authority o the court or the written consent o the other spouse. 4n the absence o such authority or consent, the disposition or encumbrance shall be void. Fowever, the transaction shall be construed as a continuing o er on the part o the consenting spouse and the third person, and may be

per ected as a binding contract upon the acceptance by the other spouse or authori3ation by the court be ore the o er is withdrawn by either or both o erors.

4 a spouse without &ust cause abandons the other or ails to comply with his or her obligations to the amily, the aggrieved spouse may petition the court or receivership, or &udicial separation o property or or authority to be the sole administrator o the absolute community 7con&ugal partnership8, sub&ect to such precautionary conditions as the court may

impose.

ac-uired b" both of them through their work or governed b" the rules on co.ownership.

industr" shall be

+n the absence of proof to the contrar"% properties ac-uired while the" lived together shall be presumed to have been obtained b" their joint efforts% work or industr"% and shall be owned b" them in e-ual shares. ?or purposes of this Article% a part" who did not participate in the ac-uisition b" the other part" of an" propert" shall be deemed to have contributed jointl" in the ac-uisition thereof if the former9s efforts consisted in the care and maintenance of the famil" and of the household. 1either part" can encumber or dispose b" acts inter (i(os of his or her share in the propert" ac-uired during cohabitation and owned in common% without the consent of the other% until after the termination of their cohabitation. /hen onl" one of the parties to a void marriage is in good faith% the share of the part" in bad faith in the co.ownership shall be forfeited in favor of their common children. +n case of default of or waiver b" an" or all of the common children or their descendants% each vacant share shall belong to the respective surviving descendants. +n the absence of descendants% such share shall belong to the innocent part". +n all cases% the forfeiture shall take place upon termination of the cohabitation. )e*uisites o #rticle 1;?6 1. The man and the woman must have capacity to marry each other. 2. The man and the woman cohabit. 3. The cohabitation is e$clusive. ;. The man and the woman are not married to each other or are married to each other but the marriage is void. Under #rticle 1;?, the property regime between the man and the woman would be special co/ownership. The special co/ownership covers6 1. Wages and salaries o either the man and the woman 2. =roperty ac*uired through the wor( or industry o either or both 4 the partner did not ac*uire the property directly, that partnerCs e orts must consist o the care and maintenance o the amily and o the household in order or such party to own 1H2 o the ac*uired property. 4n 9axe8 vs. ;A, the +C said that the co/ownership arises even i the common/law wi e does not wor( is not gain ully employed. The common/law wi e is still a co/owner since she ran the household and held the amily purse even i she did not contribute thereto.

The di erence between this special co/ownership and the ordinary co/ ownership is in #rticle 1;?, :3. 4n this special co/ownership, the ollowing cannot be done6 1. The co/ownership cannot be terminated until the cohabitation is also terminated.

2. The co/owner may not dispose or encumber his share in the property. Art. 148. +n cases of cohabitation not falling under the preceding Article% onl" the properties ac-uired b" both of the parties through their actual joint contribution of mone"% propert"% or industr" shall be owned b" them in common in proportion to their respective contributions. +n the absence of proof to the contrar"% their contributions and corresponding shares are presumed to be e-ual. The same rule and presumption shall appl" to joint deposits of mone" and evidences of credit. +f one of the parties is validl" married to another% his or her share in the co.ownership shall accrue to the absolute communit" or conjugal partnership e,isting in such valid marriage. +f the part" who acted in bad faith is not validl" married to another% his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise appl" even if both parties are in both faith. #rticle 1;@ governs live/in partners who do not all under #rticle 1;?. #rticle 1;@ will apply i 6 1. The live/in partners do not have the capacity to marry each other" or ,$ample o this is that there is an impediment o relationship, crime or age.

2. The cohabitation is not e$clusive. The special co/ownership only covers property ac*uired by both parties through their actual &oint contribution o money, property or industry. This is very similar to an ordinary partnership. 4 a live/in partner is legally married to someone else, the share o that live/in partner will accrue to the property regime o his or her e$isting valid marriage. 4 the party who acted in bad aith is not validly married to another his or her share shall be or eited to their common children or descendants. 4n the absence o descendants, such share shall belong to the innocent party.

=II. T7e Fa3$l9


Art. 149. The famil"% being the foundation of the nation% is a basic social institution which public polic" cherishes and protects. Conse-uentl"% famil" relations are governed b" law and no custom% practice or agreement destructive of the famil" shall be recogni$ed or given effect. This is merely a declaration o policy. Art. 150. ?amil" relations include those* 3'5 Fetween husband and wife2 345 Fetween parents and children2 365 Among brothers and sisters% whether of the full or half.blood. This is an e$clusive enumeration o amily members.

Art. 151. 1o suit between members of the same famil" shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made% but that the same have failed. +f it is shown that no such efforts were in fact made% the same case must be dismissed. This rules shall not appl" to cases which ma" not be compromise under the Civil Code. the subject of

General )ule* For a suit between members o the same amily shall prosper the ollowing are re*uired6 1. ,arnest e orts towards a compromise have been made 2. +uch e orts have ailed 3. +uch earnest e orts and the act o ailure must be alleged Without these 3, the case will be dismissed.

Exception: Cases which cannot be compromised. 7#rticle 2.308 Art. 2035. 1o compromise upon the following -uestions shall be valid* 3'5 The civil status of persons2 345 The validit" of a marriage or a legal separation2 365 An" ground for legal separation2 3;5 ?uture support2 3(5 The jurisdiction of courts2 3@5 ?uture legitime.

4n :a8on vs. :a8on, the +C said that #rticle 101 does not apply in the case o in/ laws. 4n the case o 9ag5aleta, the +C said that #rticle 101 does not apply i non/ amily members are to be sued as well.

=III. Fa3$l9 'o3e


Art. 152. The famil" home% constituted jointl" b" the husband and the wife or b" an unmarried head of a famil"% is the dwelling house where the" and their famil" reside% and the land on which it is situated. Art. 153. The famil" home is deemed constituted on a house and lot from the time it is occupied as a famil" residence. ?rom the time of its constitution and so long as an" of its beneficiaries actuall" resides therein% the famil" home continues to be such and is e,empt from e,ecution% forced sale or attachment e,cept as hereinafter provided and to the e,tent of the value allowed b" law. Art. 154. The beneficiaries of a famil" home are* 3'5 The husband and wife% or an unmarried person who is the head of a famil"2 and

345 Their parents% ascendants% descendants% brothers and sisters% whether the relationship be legitimate or illegitimate% who are living in the famil" home and who depend upon the head of the famil" for legal support. Art. 155. The famil" home shall be e,empt from e,ecution% forced sale or attachment e,cept* 3'5 ?or nonpa"ment of ta,es2 345 ?or debts incurred prior to the constitution of the famil" home2 365 ?or debts secured b" mortgages on the premises before or after such constitution2 and

3;5 ?or debts due to laborers% mechanics% architects% builders% materialmen and others who have rendered service or furnished material for the construction of the building. Art. 156. The famil" home must be part of the properties of the absolute communit" or the conjugal partnership% or of the e,clusive properties of either spouse with the latter9s consent. +t ma" also be constituted b" an unmarried head of a famil" on his or her own propert". 1evertheless% propert" that is the subject of a conditional sale on installments where ownership is reserved b" the vendor onl" to guarantee pa"ment of the purchase price ma" be constituted as a famil" home. The purpose o these provisions is to remove rom the reach o creditors the residence in which the amily members dwell social &ustice underpinnings The biggest change in the Family Code with regard to the amily home is that the constitution o the amily home shall be automatic once it is used as the amily dwelling. General )ule* The amily home is e$empt rom levy, attachment and e$ecution. Exceptions: 1. !on/payment o ta$es 2. For debts incurred prior to the constitution o the amily home 4 it were otherwise, then the antecedent creditors would be pre&udiced. 3. For debts secured by mortgages on the premises be ore or a ter the constitution ;. For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or urnished material or the construction o the building. +ocial &ustice

Art. 157. The actual value of the famil" home shall not e,ceed% at the time of its constitution% the amount of the three hundred thousand pesos in urban areas% and two hundred thousand pesos in rural areas% or such amounts as ma" hereafter be fi,ed b" law. +n an" event% if the value of the currenc" changes after the adoption of this Code% the value most favorable for the constitution of a famil" home shall be the basis of evaluation.

?or purposes of this Article% urban areas are deemed to include chartered cities and municipalities whose annual income at least e-uals that legall" re-uired for chartered cities. All others are deemed to be rural areas. The value provided or #rticle 10? is unrealistic. #ccording to =ro essor 9alane, the &udge should be given discretion and ad&ust it accordingly. There is a limit in terms o value provided or by the law. evade creditors by building very lu$urious homes. -therwise, debtors can

Art. 158. The famil" home ma" be sold% alienated% donated% assigned or encumbered b" the owner or owners thereof with the written consent of the person constituting the same% the latter9s spouse% and a majorit" of the beneficiaries of legal age. +n case of conflict% the court shall decide. This is a very dangerous article. Under this article, the amily home may not be sold, alienated, donated, assigned or encumbered without the consent o the person constituting the same, the latterCs spouse and a ma&ority o the bene iciaries 7see #rticle 10;8 who are o legal age. There ore, a ban( must get the consent o ma&ority o the bene iciaries be ore the amily home may be mortgaged. Fow is the ban( supposed to (now who the bene iciaries are% Fow is the ban( supposed to (now i indeed the same is the amily home% Finally, how is the ban( supposed to (now how many o the bene iciaries are o legal age% The title does not give you these pieces o in ormation. #ccording to =ro essor 9alane, creditors must be a orded some protection. This is also disadvantageous to the owner since he may not sell the amily home i the bene iciaries disagree.

Art. 159. The famil" home shall continue despite the death of one or both spouses or of the unmarried head of the famil" for a period of ten "ears or for as long as there is a minor beneficiar"% and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall appl" regardless of whoever owns the propert" or constituted the famil" home. The amily home shall continue despite the death o one or both spouses or o the unmarried head o the amily6 1. #s long as there is a minor bene iciary still living in the home 2. ,ven i there is no minor bene iciary, or a period o 1. years 4n this case, the heirs cannot partition the same unless the court inds compelling reasons. This rule shall apply regardless o whoever owns the property or constituted the amily home.

Art. 160. /hen a creditor whose claims is not among those mentioned in Article '(( obtains a judgment in his favor% and he has reasonable grounds to believe that the famil" home is actuall" worth more than the ma,imum amount fi,ed in Article '(A% he ma" appl" to the court which rendered the judgment for an order directing the sale of the propert" under e,ecution. The court shall so order if it finds that the actual value of the famil" home e,ceeds the ma,imum amount allowed b" law as of the time of its constitution. +f the increased actual value e,ceeds the ma,imum allowed in Article '(A and results from subse-uent voluntar" improvements introduced b" the person or persons constituting the

famil" home% b" the owner or owners of the propert"% or b" an" of the beneficiaries% the same rule and procedure shall appl". At the e,ecution sale% no bid below the value allowed for a famil" home shall be considered. The proceeds shall be applied first to the amount mentioned in Article '(A% and then to the liabilities under the judgment and the costs. The e,cess% if an"% shall be delivered to the judgment debtor. Art. 161. ?or purposes of availing of the benefits of a famil" home as provided for in this Chapter% a person ma" constitute% or be the beneficiar" of% onl" one famil" home. Art. 162. The provisions in this Chapter shall also govern e,isting famil" residences insofar as said provisions are applicable.

=IV. Pa#ern$#9 an, F$l$a#$on


=aternity means the relationship or status o a person with respect to his or her child 7paternity includes maternity8. Filiation means the status o a person with respect to his or her parents. =aternity and iliation implies relationship.

Art. 163. The filiation of children ma" be b" nature or b" adoption. 1atural filiation ma" be legitimate or illegitimate. 2 types o 1. !atural a. 5egitimate i. 5egitimate proper 7#rticle 11;8 ii. 5egitimated 7#rticles 11?/1?28 b. 4llegitimate 7#rticles 110, 1?0, 1?18 2. $doption ?C.$. No. 6DD- ?2:omestic $doption $ct@ and C.$. No. 6(E/ ?2Inter / country $doption $ct@@ 3 Types o 5egitimate Children 1. 5egitimate proper 2. 5egitimated 3. #dopted 2 Types o 4llegitimate Children a. Children o parents dis*uali ied to marry each other at conception and marriage. b. Children o parents *uali ied to marry each other -nly this (ind can be legitimated by subse*uent marriage. iliation

Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate

children of the husband and his wife% provided% that both of them authori$ed or ratified such insemination in a written instrument e,ecuted and signed b" them before the birth of the child. The instrument shall be recorded in the civil registr" together with the birth certificate of the child. # legitimate child is one conceived -) born during the marriage o the parents. #n innovation in the Family Code is the rule on arti icial insemination. 3 Ways o #rti icial 4nsemination i. Fomologous arti icial insemination The husbandCs sperm is used. impotent but not sterile. This is resorted to when the husband is

ii. Feterologous arti icial insemination The sperm o another man is used. This is resorted to when the husband has a low sperm count. # combination o the husband and another manCs sperm is used. This is resorted to or psychological reasons. The husband would not (now which sperm ertili3ed the egg unless a '!# test is conducted. 4 the husband (new that it was not his sperm, it may a ect martial relations.

iii. Combined arti icial insemination

What i the ovum o another woman is used% This is (nown as in vitro ertili3ation. This in not included in the coverage o the Family Code. # conservative &udge will there ore say that such child is illegitimate. )e*uisites o a Oalid and 5egal #rti icial 4nsemination 1. #uthori3ation or rati ication o the insemination by both husband and wi e #uthori3ation occurs be ore the act. )ati ication occurs a ter the act. 2. The authori3ation or rati ication must be in writing 3. The instrument must be e$ecuted and signed be ore the childCs birth by both the husband and the wi e What i this is done a ter the childCs birth% The law is silent.

Art. 165. Children conceived and born outside a valid marriage are illegitimate% unless otherwise provided in this Code. Art. 54. Children conceived or born before the judgment of annulment or absolute nullit" of the marriage under Article 6@ has become final and e,ecutor" shall be considered legitimate. Children conceived or born of the subse-uent marriage under Article (6 shall likewise be legitimate. General )ule* 4 the child is conceived #!' born outside a valid marriage, the child is illegitimate. Exceptions: 1. Children o voidable marriages 2. Children o a void marriage in 2 instances a. Children conceived o a marriage void under #rticle 31

b. Children conceived o a marriage under #rticle 03 Art. 166. !egitimac" of a child ma" be impugned onl" on the following grounds* The presumption o legitimacy is one o the strongest presumptions (nown in law. 4t is a *uasi/conclusive presumption since such presumption can only be rebutted by certain instances in #rticle 111. 3'5 That it was ph"sicall" impossible for the husband to have se,ual intercourse with his wife within the first '4D da"s of the 6DD da"s which immediatel" preceded the birth of the child because of* 3a5 the ph"sical incapacit" of the husband to have se,ual intercourse with his wife2 3b5 the fact that the husband and wife were living separatel" in such a wa" that se,ual intercourse was not possible2 or 3c5 serious illness of the husband% which absolutel" prevented se,ual intercourse2

There must be a physical impossibility or the husband and the wi e to have se$ual st intercourse or the 1 12. days preceding the childCs birth. 4 it ta(es 3.. days or a child to be born, or a child to be illegitimate, it must be st shown the physical impossibility o the husband and wi e to have se$ within the 1 12. days. The physical impossibility must be or the ,!T4), 12. day period. These periods are not arbitrary since scientists (now that in order or a child to survive, there must be a 1 month minimum period o gestation. =hysical impossibility may be shown in 3 ways 1. 4mpotence o the husband 2. +pouses living separately 4 the husband is living in >a(ati, and the wi e is living in K.C., this is not what is contemplated by #rticle 111 7187b8. 4 the husband is living in Toronto, and the wi e is living in >anila, then it alls under #rticle 111 7187b8. 4 one o the spouses is in &ail, there is still the possibility o se$ since visits are allowed. The illness must be such that se$ is impossible 7 i.e.! comatose8. T9 is not an illness which causes an impossibility to have se$ (Andal vs. 9acaraig).

3. +erious illness which absolutely prevented se$

,.7E: 4n these 3 instances, it is presumed that there is no arti icial insemination. #lso it is incumbent on the one impugning legitimacy that there could be no access. 345 That it is proved that for biological or other scientific reasons% the child could not have been that of the husband% e,cept in the instance provided in the second paragraph of Article '@;2 or

#rticle 111 728 assumes that there is no physical impossibility. -therwise, it would all under #rticle 111 718. '!# tests can show whether or not the husband is the biological ather o the child. 4n Lim vs. ;A, Iustice )omero in a o5iter dictum said that '!# tests are not yet accepted here. 365 That in case of children conceived through artificial insemination% the written authori$ation or ratification of either parent was obtained through mistake% fraud% violence% intimidation% or undue influence.

4n case o arti icial insemination, the written authori3ation or rati ication was procured by mista(e, raud, violence, intimidation, or undue in luence.

Art. 167. The child shall be considered legitimate although the mother ma" have declared against its legitimac" or ma" have been sentenced as an adulteress. 'espite the declaration o the mother that the child is illegitimate or that she has been declared an adulteress, the presumption o legitimacy still stands. This is so because in many instances, the woman wouldnCt (now who the ather o the child is i she had multiple partners. #lso, there are instances wherein a woman whose marriage has turned sour will declare such in order to hurt the pride o her husband. &resu ptions: 1. Oalidity o the marriage 2. That the child is o the motherCs 7 actual8 3. That the child is that o the husband ;. That the child was conceived during the marriage !os. 3 and ; are hard to prove thatCs why presumptions come in.

Art. 168. +f the marriage is terminated and the mother contracted another marriage within three hundred da"s after such termination of the former marriage% these rules shall govern in the absence of proof to the contrar"* 3'5 A child born before one hundred eight" da"s after the solemni$ation of the subse-uent marriage is considered to have been conceived during the former marriage% provided it be born within three hundred da"s after the termination of the former marriage2 345 A child born after one hundred eight" da"s following the celebration of the subse-uent marriage is considered to have been conceived during such marriage% even though it be born within the three hundred da"s after the termination of the former marriage.
Termination o 1 marriage
st

Celebration o nd 2 marriage

1@. days a ter nd celebration o 2 marriage

3.. days a ter st termination o 1 marriage

Child o the 1 marriage

st

Child o the 2 marriage

nd

For the child to be considered the child o the 1 must concur6

st

husband, the ollowing re*uisites

1. The mother must have married again within 3.. days rom the termination o her irst marriage 2. The child was born within the same 3.. days a ter the termination o the ormer marriage o its mother 3. The child was born be ore 1@. days a ter the solemni3ation o its motherCs 2 marriage For the child to be considered the child o the 2 must concur6
nd nd

husband, the ollowing re*uisites

1. The mother must have married again within 3.. days rom the termination o the marriage 2. The child was born within the same 3.. days a ter the termination o its motherCs irst marriage ;. The child was born a ter 1@. days ollowing the solemni3ation o its motherCs second marriage The irst marriage must be terminated either by death or annulment. Can the marriage re er to a marriage under #rticle ;2% !o, since the terms o this #rticle nd provide that the irst marriage is terminated. Under #rticle ;2, it is the 2 marriage which is terminated.

Art. 170. The action to impugn the legitimac" of the child shall be brought within one "ear from the knowledge of the birth or its recording in the civil register% if the husband or% in a proper case% an" of his heirs% should reside in the cit" or municipalit" where the birth took place or was recorded. +f the husband or% in his default% all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded% the period shall be two "ears if the" should reside in the Philippines2 and three "ears if abroad. +f the birth of the child has been concealed from or was unknown to the husband or his heirs% the period shall be counted from the discover" or knowledge of the birth of the child or of the fact of registration of said birth% whichever is earlier. Art. 171. The heirs of the husband ma" impugn the filiation of the child within the period prescribed in the preceding article onl" in the following cases* 3'5 +f the husband should died before the e,piration of the period fi,ed for bringing his action2 345 +f he should die after the filing of the complaint without having desisted therefrom2 or 365 +f the child was born after the death of the husband. General )ule* -nly the husband can impugn the legitimacy o the child. Exception: The heirs o the husband in the ollowing cases 1. 4 the husband should die be ore the e$piration o the period i$ed or bringing his action

2. 4 he should die a ter the iling o the complaint without having desisted there rom or 3. 4 the child was born a ter the death o the husband. The husband or the heirs has the ollowing years to impugn the legitimacy o the child6 1. 1 year rom (nowledge o the birth or its recording in the civil register, i the husband or in a proper case, any o his heirs, should reside in the city or municipality where the birth too( place or recorded. 2. 2 years rom (nowledge o the birth or its recording in the civil register, i the husband or in a proper case, any o his heirs, '- !-T reside in the city or municipality where the birth too( place or recorded. 3. 3 years rom (nowledge o the birth or its recording in the civil register, i the husband or in a proper case, any o his heirs, live abroad ,.7E: 4 the birth o the child has been concealed or was un(nown to the husband or his heirs, the period shall be counted rom the discovery or (nowledge o the birth o the child or o the act o the registration o the birth, whichever is earlier. '. &roo. o. )iliation Art. 172. The filiation of legitimate children is established b" an" of the following* 3'5 The record of birth appearing in the civil register or a final judgment2 or 345 An admission of legitimate filiation in a public document or a private handwritten instrument and signed b" the parent concerned.

+n the absence of the foregoing evidence% the legitimate filiation shall be proved b"* 3'5 The open and continuous possession of the status of a legitimate child2 or 345 An" other means allowed b" the )ules of Court and special laws. =roo o iliation o a legitimate child is very liberal6

1. )ecord o birth 2. Final &udgment 3. #dmission in a public document ;. #dmission in a private handwritten instrument and signed by the said parents 0. -pen and continuous possession o the status o a legitimate child 1. #ny other means allowed by the )ules o Court 7i.e. baptismal certi icate, amily bibles, common reputation respecting pedigree, testimony o witnesses, etc.8 =roo o iliation is very liberal because the law avors legitimacy. 4t is better to treat an illegitimate child as legitimate then to commit an error and treat a legitimate child as an illegitimate.

Art. 173. The action to claim legitimac" ma" be brought b" the child during his or her lifetime and shall be transmitted to the heirs should the child die during minorit" or in a state of insanit". +n these cases% the heirs shall have a period of five "ears within which to institute the action. The right o the child to bring an action to claim legitimacy does not prescribe as long as he lives. The child may bring such action even a ter the li etime o his parents. The right to ile an action to claim legitimacy may be transmitted by the child to the heirs should the child die during minority or die in a state o insanity or die during the pendency o the case. 4 the right is transmitted by the child to the heirs, then the heirs will have 0 years to bring the action. ate *"il+ren

4. 3lle/iti

The rules in the Family Code were meant to liberali3e the rules o the !CC on illegitimacy. 4n the !CC, recognition was necessary in order to a ord rights to the illegitimate child. Under the Family Code, there is no need or recognition. !ow, proo o illegitimacy is su icient. The rule now is that the manner in which children may prove their legitimacy is also the same manner in which illegitimate children may prove their iliation 7#rticle 1?08. The child may prove his illegitimate iliation by bringing an action to claim illegitimate iliation. The child has until his li etime to ile such action unless the action is based on the open and continuous possession by the child o the status o an illegitimate child, or on other evidence allowed by the )ules o Court. 4 the action is based on the open and continuous possession by the child o the status o an illegitimate child, or on other evidence allowed by the )ules o Court, then the action must be brought within the li etime o the alleged parent.

Art. 176. +llegitimate children shall use the surname and shall be under the parental authorit" of their mother% and shall be entitled to support in conformit" with this Code. The legitime of each illegitimate child shall consist of one.half of the legitime of a legitimate child. 8,cept for this modification% all other provisions in the Civil Code governing successional rights shall remain in force. The rights o illegitimate children are not the same as the rights o a legitimate child. #n illegitimate child shall use the surname o the mother. ,ven i a couple, wherein the man and the woman are capacitated to marry each other but are not married, agree that the child shall use surname o the man, this is not allowed. #ll illegitimate children shall use the mot hers surname. =arental authority resides in the mother alone. The illegitimate child has the right o support. The order o pre erence or legitimate and illegitimate children are not the same however.

#n illegitimate child is entitled to only S he share o a legitimate child. ation

6. :e/iti

Art. 177. #nl" children conceived and born outside of wedlock of parents who% at the time of the conception of the former% were not dis-ualified b" an" impediment to marr" each other ma" be legitimated. Art. 178. !egitimation shall take place b" a subse-uent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. )e*uisites o 5egitimation6 1. The child is illegitimate 7#rticle 1??8. 2. The parents at the time o the childs conception are not dis8uali#ied #rom marrying each other 7#rticle 1??8. I# the parents o# the child are 'A and 'D years old at the latters conception, the child may not be legitimated. I# the marriage occurs be#ore the childs birth, then legitimate 7#rticle 11; 8. the child is

3. There is a valid marriage subse8uent to the childs birth 7#rticle 1?@8

hat i# the marriage which takes place a#ter the childs birth is a voidable marriage% The child would still be legitimated. # voidable marriage is still a valid one until it is declared void.

Art. 179. !egitimated children shall enjo" the same rights as legitimate children. Art. 180. The effects of legitimation shall retroact to the time of the child9s birth. Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants. Art. 182. !egitimation ma" be impugned onl" b" those who are prejudiced in their rights% within five "ears from the time their cause of action accrues. ;. Do estic A+option Act 1Repu'lic Act #o. 85522 The ollowing are the important provisions6 a. KA 7which superseded #rticles 1@3/1@1 o the Family Code8 SECTION G. Who >ay Adopt% ? T#e '-$$-!)*. / , +-0%@ A C A*, F)$)0)*- c)%)3e* -' $e. $ .e4 )* 0-""e"")-* -' '1$$ c)5)$ c 0 c)%, *+ $e. $ ().#%"4 -' .--+ /-( $ c# ( c%e(4 # " *-% 2ee* c-*5)c%e+ -' *,

Art. *'4! (*. Children conceived or born during the marriage o the parents are legitimate.

c()/e )*5-$5)*. /-( $ %1(0)%1+e4 e/-%)-* $$, *+ 0",c#-$-.)c $$, c 0 2$e -' c ()*. '-( c#)$+(e*4 % $e "% ");%ee* A18C ,e (" -$+e( %# * %#e +-0%ee4 *+ !#- )" )* 0-")%)-* %- "100-(% *+ c (e '-( #)"J#e( c#)$+(e* )* &ee0)*. !)%# %#e /e *" -' %#e ' /)$,. T#e (eI1)(e/e*% -' ");%ee* A18C ,e ( +)''e(e*ce 2e%!ee* %#e .e -' %#e +-0%e( *+ +-0%ee / , 2e ! )5e+ !#e* %#e +-0%e( )" %#e 2)-$-.)c $ 0 (e*% -' %#e +-0%ee4 -( )" %#e "0-1"e -' %#e +-0%eeK" 0 (e*%> A2C A*, $)e* 0-""e"")*. %#e " /e I1 $)')c %)-*" " 2-5e "% %e+ '-( F)$)0)*- * %)-* $"@ <rovided4 T# % #)"J#e( c-1*%(, # " +)0$-/ %)c (e$ %)-*" !)%# %#e Re012$)c -' %#e P#)$)00)*e"4 %# % #eJ"#e # " 2ee* $)5)*. )* %#e P#)$)00)*e" '-( % $e "% %#(ee A6C c-*%)*1-1" ,e (" 0()-( %%#e ')$)*. -' %#e 00$)c %)-* '-( +-0%)-* *+ / )*% )*" "1c# (e")+e*ce 1*%)$ %#e +-0%)-* +ec(ee )" e*%e(e+4 %# % #eJ"#e # " 2ee* ce(%)')e+ 2, #)"J#e( +)0$-/ %)c -( c-*"1$ ( -'')ce -( *, 00(-0() %e .-5e(*/e*% .e*c, %# % #eJ"#e # " %#e $e. $ c 0 c)%, %- +-0% )* #)"J#e( c-1*%(,4 *+ %# % #)"J#e( .-5e(*/e*% $$-!" %#e +-0%ee %- e*%e( #)"J#e( c-1*%(, " #)"J#e( +-0%e+ "-*J+ 1.#%e(@ <rovided, 7 rther, T# % %#e (eI1)(e/e*%" -* (e")+e*c, *+ ce(%)')c %)-* -' %#e $)e*K" I1 $)')c %)-* %+-0% )* #)"J#e( c-1*%(, / , 2e ! )5e+ '-( %#e '-$$-!)*.@ A)C '-(/e( F)$)0)*- c)%)3e* !#- "ee&" %- +-0% (e$ %)5e !)%#)* %#e '-1(%# AD%#C +e.(ee -' c-*" *.1)*)%, -( '')*)%,> -( +-0% %#e $e.)%)/ %e "-*J+ 1.#%e( -' #)"J#e(

A))C -*e !#- "ee&" %F)$)0)*- "0-1"e> -(

A)))C -*e !#- )" / (()e+ %- F)$)0)*- c)%)3e* *+ "ee&" %- +-0% B-)*%$, !)%# #)"J#e( "0-1"e (e$ %)5e !)%#)* %#e '-1(%# AD%#C +e.(ee -' c-*" *.1)*)%, -( '')*)%, -' %#e F)$)0)*- "0-1"e> -( AcC T#e .1 (+) * !)%# (e"0ec% %- %#e ! (+ '%e( %#e %e(/)* %)-* -' %#e .1 (+) *"#)0 *+ c$e ( *ce -' #)"J#e( ')* *c) $ cc-1*% 2)$)%)e". H1"2 *+ *+ !)'e "# $$ B-)*%$, +-0%4 e;ce0% )* %#e '-$$-!)*. c "e"@ A)C )' -*e "0-1"e "ee&" %- +-0% %#e $e.)%)/ %e "-*J+ 1.#%e( -' %#e -%#e(> -( A))C )' -*e "0-1"e "ee&" %- +-0% #)"J#e( -!* )$$e.)%)/ %e "-*J+ 1.#%e(@ <rovided, However4 %# % %#e -%#e( "0-1"e # " ").*)')e+ #)"J#e( c-*"e*% %#e(e%-> -( A)))C )' %#e "0-1"e" (e $e. $$, "e0 ( %e+ '(-/ e c# -%#e(. I* c "e #1"2 *+ *+ !)'e B-)*%$, +-0%4 -( -*e "0-1"e +-0%" %#e )$$e.)%)/ %e "-*J+ 1.#%e( -' %#e -%#e(4 B-)*% 0 (e*% $ 1%#-()%, "# $$ 2e e;e(c)"e+ 2, %#e "0-1"e". b. KB 7which superseded #rticle 1@? o the Family Code8 SECTION 7. Who >ay Be Adopted% ? T#e '-$$-!)*. / , 2e +-0%e+@ A C A*, 0e("-* 2e$-! e).#%ee* A17C ,e (" -' .e !#- # " 2ee* +/)*)"%( %)5e$, -( B1+)c) $$, +ec$ (e+ 5 )$ 2$e '-( +-0%)-*> A2C T#e $e.)%)/ %e "-*J+ 1.#%e( -' -*e "0-1"e 2, %#e -%#e( "0-1"e> AcC A* )$$e.)%)/ %e "-*J+ 1.#%e( 2, "% %1" %- %# % -' $e.)%)/ c,> I1 $)')e+ +-0%e( %- )/0(-5e #)"J#e(

A+C A 0e("-* -' $e. $ .e )'4 0()-( %- %#e +-0%)-*4 " )+ 0e("-* # " 2ee* c-*")"%e*%$, c-*")+e(e+ *+ %(e %e+ 2, %#e +-0%e(A"C " #)"J#e( -!* c#)$+ ")*ce /)*-()%,> AeC A c#)$+ !#-"e +-0%)-* # " 2ee* 0(e5)-1"$, (e"c)*+e+> -(

A c#)$+ !#-"e 2)-$-.)c $ -( +-0%)5e 0 (e*%A"C # " +)e+@ <rovided, T# % *- 0(-cee+)*." "# $$ 2e )*)%) %e+ !)%#)* "); A8C /-*%#" '(-/ %#e %)/e -' +e %# -' " )+ 0 (e*%A"C. c. KC 7which superseded #rticle 1@@ o the Family Code8 SECTION H. Whose Consent is ,ecessary to the Adoption. ? A'%e( 2e)*. 0(-0e($, c-1*"e$e+ *+ )*'-(/e+ -' #)"J#e( ().#% %- .)5e -( !)%##-$+ #)"J#e( 00(-5 $ -' %#e +-0%)-*4 %#e !()%%e* c-*"e*% -' %#e '-$$-!)*. %- %#e +-0%)-* )" #e(e2, (eI1)(e+@ A C T#e +-0%ee4 )' %e* A10C ,e (" -' .e -( -5e(> A2C T#e 2)-$-.)c $ 0 (e*%A"C -' %#e c#)$+4 )' &*-!*4 -( %#e $e. $ .1 (+) *4 -( %#e 0(-0e( .-5e(*/e*% )*"%(1/e*% $)%, !#)c# # " $e. $ c1"%-+, -' %#e c#)$+> AcC T#e $e.)%)/ %e *+ +-0%e+ "-*"J+ 1.#%e("4 %e* A10C ,e (" -' .e -( -5e(4 -' %#e +-0%e(A"C *+ +-0%ee4 )' *,> A+C T#e )$$e.)%)/ %e "-*"J+ 1.#%e("4 %e* A10C ,e (" -' .e -( -5e(4 -' %#e +-0%e( )' $)5)*. !)%# " )+ +-0%e( *+ %#e $ %%e(K" "0-1"e4 )' *,> *+ AeC T#e "0-1"e4 )' *,4 -' %#e 0e("-* +-0%)*. -( %- 2e +-0%e+. d. KK'@.'B 7which superseded #rt. 1@A and 1A. o the Family Code8 SECTION 18. <arental A thority% ? E;ce0% )* c "e" !#e(e %#e 2)-$-.)c $ 0 (e*% )" %#e "0-1"e -' %#e +-0%e(4 $$ $e. $ %)e" 2e%!ee* %#e 2)-$-.)c $ 0 (e*%A"C *+ %#e +-0%ee "# $$ 2e "e5e(e+ *+ %#e " /e "# $$ %#e* 2e 5e"%e+ -* %#e +-0%e(A"C. SECTION 1G. @egitimacy% C T#e +-0%ee "# $$ 2e c-*")+e(e+ %#e $e.)%)/ %e "-*J+ 1.#%e( -' %#e +-0%e(A"C '-( $$ )*%e*%" *+ 01(0-"e" *+ " "1c# )" e*%)%$e+ %- $$ %#e ().#%" *+ -2$). %)-*" 0(-5)+e+ 2, $ ! %- $e.)%)/ %e "-*"J+ 1.#%e(" 2-(* %- %#e/ !)%#-1% +)"c()/)* %)-* -' *, &)*+. T- %#)" e*+4 %#e +-0%ee )" e*%)%$e+ %- $-5e4 .1)+ *ce4 *+ "100-(% )* &ee0)*. !)%# %#e /e *" -' %#e ' /)$,. SECTION 17. S ccession% ? I* $e. $ *+ )*%e"% %e "1cce"")-*4 %#e +-0%e(A"C *+ %#e +-0%ee "# $$ # 5e (ec)0(-c $ ().#%" -' "1cce"")-* !)%#-1% +)"%)*c%)-* '(-/ $e.)%)/ %e ')$) %)-*. H-!e5e(4 )' %#e +-0%ee *+ #)"J#e( 2)-$-.)c $ 0 (e*%A"C # + $e'% !)$$4 %#e $ ! -* %e"% /e*% (, "1cce"")-* "# $$ .-5e(*. e. K'C 7which superseded #rt. 1A1 and 1A2 o the Family Code8 SECTION 1H. #ro nds for Rescission of Adoption% ? U0-* 0e%)%)-* -' %#e +-0%ee4 !)%# %#e "")"% *ce -' %#e De0 (%/e*% )' /)*-( -( )' -5e( e).#%ee* A17C ,e (" -' .e 21% )" )*c 0 c)% %e+4 " .1 (+) *Jc-1*"e$4 %#e +-0%)-* / , 2e (e"c)*+e+ -* *, -' %#e '-$$-!)*. .(-1*+" c-//)%%e+ 2, %#e +-0%e(A"C@ A C (e0e %e+ 0#,")c $ *+ 5e(2 $ / $%(e %/e*% 2, %#e +-0%e(A"C +e"0)%e # 5)*. 1*+e(.-*e c-1*"e$)*.> A2C %%e/0% -* %#e $)'e -' %#e +-0%ee> AcC "e;1 $ "" 1$% -( 5)-$e*ce> -( A+C 2 *+-*/e*% *+ ' )$1(e %- c-/0$, !)%# 0 (e*% $ -2$). %)-*". A+-0%)-*4 2e)*. )* %#e 2e"% )*%e(e"% -' %#e c#)$+4 "# $$ *-% 2e "12Bec% %(e"c)"")-* 2, %#e +-0%e(A"C. H-!e5e(4 %#e +-0%e(A"C / , +)")*#e()% %#e +-0%ee '-( c 1"e" 0(-5)+e+ )* A(%)c$e H1H -' %#e C)5)$ C-+e.

f. K4D 7which superseded #rt. 1A3 o the Family Code8 SECTION 20. Effects of Rescission% ? I' %#e 0e%)%)-* )" .( *%e+4 %#e 0 (e*% $ 1%#-()%, -' %#e +-0%eeK" 2)-$-.)c $ 0 (e*%A"C4 )' &*-!*4 -( %#e $e. $ c1"%-+, -' %#e De0 (%/e*% "# $$ 2e (e"%-(e+ )' %#e +-0%ee )" "%)$$ /)*-( -( )*c 0 c)% %e+. T#e (ec)0(-c $ ().#%" *+ -2$). %)-*" -' %#e +-0%e(A"C *+ %#e +-0%ee %- e c# -%#e( "# $$ 2e e;%)*.1)"#e+. T#e c-1(% "# $$ -(+e( %#e C)5)$ Re.)"%( ( %- c *ce$ %#e /e*+e+ ce(%)')c %e -' 2)(%# -' %#e +-0%ee *+ (e"%-(e #)"J#e( -().)* $ 2)(%# ce(%)')c %e. S1cce"")-* ().#%" "# $$ (e5e(% %- )%" "% %1" 0()-( %- +-0%)-*4 21% -*$, " -' %#e + %e -' B1+./e*% -' B1+)c) $ (e"c)"")-*. Ve"%e+ ().#%" cI1)(e+ 0()-( %B1+)c) $ (e"c)"")-* "# $$ 2e (e"0ec%e+. A$$ %#e '-(e.-)*. e''ec%" -' (e"c)"")-* -' +-0%)-* "# $$ 2e !)%#-1% 0(eB1+)ce %- %#e 0e* $%)e" )/0-" 2$e 1*+e( %#e Pe* $ C-+e )' %#e c()/)* $ c%" (e 0(-0e($, 0(-5e*. Can an adopted child continue to be an heir o his biological parents% Under #rticle 1@A o the Family Code, the adopted child was still an heir o his blood relatives. Fowever, #rticle 1@A o the Family Code was superseded by GG11/ 1@ o ).#. !o. @002. ).#. !o. @002 is silent on this point. #ccording to =ro essor 9alane, one cannot use G11 as the basis or saying that the adopted child cannot inherit rom his biological parents. G11 only tal(s about parental authority. There is no re erence to succession.

=V. Su--or#
Art. 194. >upport compromises ever"thing indispensable for sustenance% dwelling% clothing% medical attendance% education and transportation% in keeping with the financial capacit" of the famil". The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession% trade or vocation% even be"ond the age of majorit". Transportation shall include e,penses in going to and from school% or to and from place of work. +upport comprises everything indispensable or sustenance, dwelling, clothing, medical attendance, education, and transportation, in (eeping with the inancial capacity o the amily. 3 Einds o +upport 1. 5egal that which is re*uired to be given by law 2. Iudicial that which is re*uired to be given by court order whether pendente lite or in a inal &udgment 3. Ooluntary or Conventional by agreement #n e$ample o conventional support is as ollow. N donates land to D. Fowever N imposes a mode F has to support Gs mother.

Characteristics o +upport 1. =ersonal 2. 4ntransmissible 3. !ot sub&ect to waiver or compensation with regard to uture support +upport in arrears can be waived.

;. ,$empt rom attachment or e$ecution 7#rticle 2.0 8 0. )eciprocal on the part o those who are by law bound to support each other 7#rticle 1A08 1. Oariable 7#rticles 2.1 and 2.2 8 Art. 195. >ubject to the provisions of the succeeding articles% the following are obliged to support each other to the whole e,tent set forth in the preceding article* 3'5 The spouses2 345 !egitimate ascendants and descendants2 365 Parents and their legitimate children and the legitimate and illegitimate children of the latter2 3;5 Parents and their illegitimate children and illegitimate children of the latter2 and and the legitimate

3(5 !egitimate brothers and sisters% whether of full or half.blood Art. 196. Frothers and sisters not legitimatel" related% whether of the full or half.blood% are likewise bound to support each other to the full e,tent set forth in Article 'C;% e,cept onl" when the need for support of the brother or sister% being of age% is due to a cause imputable to the claimant9s fault or negligence. 4llegitimate siblings, whether o ull or hal blood, are bound to support each other. Fowever, they need not give support to an illegitimate, emancipated sibling whose need or support is imputable to his ault or negligence.

Art. 199. /henever two or more persons are obliged to give support% the liabilit" shall devolve upon the following persons in the order herein provided* 3'5 The spouse2 345 The descendants in the nearest degree2 365 The ascendants in the nearest degree2 and 3;5 The brothers and sisters.

Art. &0%. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or e$ecution.

Art. &0*. The amount o support, in the cases re erred to in #rticles 1A0 and 1A1, shall be in proportion to the resources or means o the giver and to the necessities o the recipient. Art. &0&. +upport in the cases re erred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase o the necessities o the recipient and the resources or means o the person obliged to urnish the same.

#rticle 1AA is important because it establishes the order o pre erence or the givers o support. When a relative needs support, there are many relatives one can go a ter. That relative in need cannot choose but must ollow the order established in this #rticle 1AA. 4 a parent needs support rom his children, that parent may chose any o children. #ll o the children are solidarily liable. the

Art. 200. /hen the obligation to give support falls upon two or more persons% the pa"ment of the same shall be divided between them in proportion to the resources of each. 7owever% in case of urgent need and b" special circumstances% the judge ma" order onl" one of them to furnish the support provisionall"% without prejudice to his right to claim from the other obligors the share due from them. /hen two or more recipients at the same time claim support from one and the same person legall" obliged to give it% should the latter not have sufficient means to satisf" all claims% the order established in the preceding article shall be followed% unless the concurrent obligees should be the spouse and a child subject to parental authorit"% in which case the child shall be preferred. #rticle 2.. establishes the order o pre erence or recipients. When several relatives come to a particular relative or support, the relative who will give support must ollow #rticle 2... 4 the relative who will give support has enough, he must give all those enumerated in #rticle 1AA. 4 the relative does not have enough, then the hierarchy enumerated in #rticle 1AA must be ollowed. #n minor who is an illegitimate child as(s support rom his ather. This illegitimate child will not be pre erred over the spouse o the ather. Those who will be pre erred over the spouse o# the #ather are those children who are sub;ect to the #athers parental authority. 4n this case, since the child is illegitimate, the ather has no parental authority. The illegitimate child will be behind legitimate children and the spouse o his parent. 4llegitimate children are in #rticle 1AA 728 since there is no distinction between legitimate and illegitimate.

Art. 201. The amount of support% in the cases referred to in Articles 'C( and 'C@% shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Art. 202. >upport in the cases referred to in the preceding article shall be reduced or increased proportionatel"% according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. +upport shall always be in proportion to the means o the giver and the necessities o the recipient. There is no res #udicata as to the amount o support to be given since support is variable.

Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance% but it shall not be paid e,cept from the date of judicial or e,trajudicial demand. >upport pen+ente lite ma" be claimed in accordance with the )ules of Court. Pa"ment shall be made within the first five da"s of each corresponding month or when the recipient dies% his heirs shall not be obliged to return what he has received in advance. +upport is demandable rom the time the person who has the right to receive it needs it. Fowever, it is payable only rom &udicial or e$tra&udicial demand. ,n $pril ', G needed support #rom his #ather. 7ince G is too proud, G doesnt ask. -n Iuly 1, N goes to his ather and as(s him or support. The ather re uses. -n +ept. 1, N iles an action or support. -n -ct. 1, the court renders &udgment in avor o N. When is the ather obliged to give support% Iuly 1 since there was e$tra&udicial demand.

Art. 204. The person obliged to give support shall have the option to fulfill the obligation either b" pa"ing the allowance fi,ed% or b" receiving and maintaining in the famil" dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. The person obliged to render support may ul ill his obligation in 2 ways at his option6 1. =aying the amount i$ed or 2. )eceiving and maintaining in the amily dwelling the person who has a right to receive support This 2 option cannot be availed o when there is a moral or legal obstacle. nd For e$ample, a husband in supporting his wi e, cannot choose the 2 option i he had been maltreating her (:oitia vs. ;ampos Rueda).
nd

Art. 205. The right to receive support under this Title as well as an" mone" or propert" obtained as such support shall not be levied upon on attachment or e,ecution. Art. 206. /hen% without the knowledge of the person obliged to give support% it is given b" a stranger% the latter shall have a right to claim the same from the former% unless it appears that he gave it without intention of being reimbursed. Art. 207. /hen the person obliged to support another unjustl" refuses or fails to give support when urgentl" needed b" the latter% an" third person ma" furnish support to the need" individual% with right of reimbursement from the person obliged to give support. This Article shall particularl" appl" when the father or mother of a child under the age of majorit" unjustl" refuses to support or fails to give support to the child when urgentl" needed. Art. 208. +n case of contractual support or that given b" will% the e,cess in amount be"ond that re-uired for legal support shall be subject to lev" on attachment or e,ecution.

?urthermore% contractual support shall be subject to adjustment whenever modification is necessar" due to changes of circumstances manifestl" be"ond the contemplation of the parties.

=VI. Paren#al Au#7or$#9


=arental authority comes rom patria potestas which means the #athers power. The woman was always dependent on a male igure whether it be her husband, her ather or her son. 4n )oman 5aw, patria potestas e$tended even to li e and death. This power was granted to the ather in order to (eep his amily in chec(. !ow, the present concept o parental authority is no longer ocused on the power aspect. )ather, the ocus o parental authority is the obligational aspect. =arental authority is given to the parents over their children in order or the children to be reared properly. The ocus is on the child and the childs wel#are.

Art. 209. Pursuant to the natural right and dut" of parents over the person and propert" of their unemancipated children% parental authorit" and responsibilit" shall include the caring for and rearing them for civic consciousness and efficienc" and the development of their moral% mental and ph"sical character and well.being. =arental authority terminates at the age o 1@. This e$tends to both parental authority over the person and the property o the child.

Art. 210. Parental authorit" and responsibilit" ma" not be renounced or transferred e,cept in the cases authori$ed b" law. Art. 211. The father and the mother shall jointl" e,ercise parental authorit" over the persons of their common children. +n case of disagreement% the father9s decision shall prevail% unless there is a judicial order to the contrar". Children shall alwa"s observe respect and reverence towards their parents and are obliged to obe" them as long as the children are under parental authorit". &arental authority is ;oint. In case o# disagreement, the husbands decision prevails. Fowever, the wi e can go to court. For illegitimate children, parental authority is not &oint. 4t is with the mother

Art. 212. +n case of absence or death of either parent% the parent present shall continue e,ercising parental authorit". The remarriage of the surviving parent shall not affect the parental authorit" over the children% unless the court appoints another person to be the guardian of the person or propert" of the children. Art. 213. +n case of separation of the parents% parental authorit" shall be e,ercised b" the parent designated b" the Court. The Court shall take into account all relevant considerations% especiall" the choice of the child over seven "ears of age% unless the parent chosen is unfit.

The 2 paragraph o #rticle 213 provides that no child under ? years o age shall be separated rom the mother, unless the court inds compelling reasons to order otherwise. 4n earlier cases, the mother was almost always the custodian o a child who is below ? years. There is a trend o liberali3ing this. Courts will always loo( at the best interest o the child as the criterion.

nd

Art. 214. +n case of death% absence or unsuitabilit" of the parents% substitute parental authorit" shall be e,ercised b" the surviving grandparent. +n case several survive% the one designated b" the court% taking into account the same consideration mentioned in the preceding article% shall e,ercise the authorit". Art. 215. 1o descendant shall be compelled% in a criminal case% to testif" against his parents and grandparents% e,cept when such testimon" is indispensable in a crime against the descendant or b" one parent against the other. #rticle 210 applies only in criminal cases and !-T in a civil case. General )ule* # descendant cannot be compelled in a criminal case to testi y against his parents and grandparents. Exception: # descendant can be compelled i such testimony is indispensable in a crime against a descendant or by one parent against the other. ,.7E: The criminal case need not be iled by the descendant or the parent. 4t may rd be iled by a 3 person. #lso, this rule applies only to compulsory testimony. 4t does not apply to voluntary testimony. Thus, the descendant can volunteer i he wants to.

Art. 216. +n default of parents or a judiciall" appointed guardian% the following person shall e,ercise substitute parental authorit" over the child in the order indicated* 3'5 The surviving grandparent% as provided in Art. 4';2 345 The oldest brother or sister% over twent".one "ears of age% unless unfit or dis-ualified2 and 365 The child9s actual custodian% over twent".one "ears of age% unless unfit or dis-ualified. /henever the appointment or a judicial guardian over the propert" of the child becomes necessar"% the same order of preference shall be observed. 4n de ault o the parents or a &udicial guardian, substitute parental authority over the child shall be e$ercised in the order indicated6 1. The surviving grandparent 4 there are several grandparents, then the guardian shall be the one designated by the court pursuant to #rticles 213 and 21;

2. The oldest brother or sister, over 21 years old, unless un it or dis*uali ied 3. The childs actual custodian, over -' years old, unless un#it or dis8uali#ied This custodian need not be a relative o the child, but he or she must have actual custody.

Art. 217. +n case of foundlings% abandoned neglected or abused children and other children similarl" situated% parental authorit" shall be entrusted in summar" judicial proceedings to heads of children9s homes% orphanages and similar institutions dul" accredited b" the proper government agenc". Art. 218. The school% its administrators and teachers% or the individual% entit" or institution engaged in child are shall have special parental authorit" and responsibilit" over the minor child while under their supervision% instruction or custod". Authorit" and responsibilit" shall appl" to all authori$ed activities whether inside or outside the premises of the school% entit" or institution. Art. 219. Those given the authorit" and responsibilit" under the preceding Article shall be principall" and solidaril" liable for damages caused b" the acts or omissions of the unemancipated minor. The parents% judicial guardians or the persons e,ercising substitute parental authorit" over said minor shall be subsidiaril" liable. The respective liabilities of those referred to in the preceding paragraph shall not appl" if it is proved that the" e,ercised the proper diligence re-uired under the particular circumstances. All other cases not covered b" this and the preceding articles shall be governed b" the provisions of the Civil Code on -uasi.delicts. #rticles 21@ and 21A apply -!5D to minors since the schools merely ta(e the place o the parents. )ules6 1. #rticles 21@ and 21A are not limited to schools o applicable to all schools. arts and trade, but are

2. #uthority and responsibility apply to activities inside and outside provided the activity is an authori3ed one 7i.e.! ield trip8 3. The liability o the school administrators and the teacher is solidary and primary. ;. The liability o the parents or the guardian is subsidiary. 0. !egligence o the school administrators and the teacher is presumed. The burden in on the school administrator and the teacher to prove diligence under #rticle 21A. 1. The scope o the liability e$tends only to damage caused by the child in the course o an authori3ed school activity. )ules )egarding 5iability or 4n&uries Caused by +tudents 1. 4 the student who caused the in&ury is below 1@, #rticles 21@ / 21A apply. 2. 4 the student who caused the in&ury is above 1@, #rticles 21@ / 21A do !-T apply. #rticle 21@. is applicable.

Art. &*/0. The obligation imposed by article 21?1 is demandable not only or oneCs own acts or omissions, but also or those o persons or whom one is responsible. The ather and, in case o his death or incapacity, the mother, are responsible or the damages caused by the minor children who live in their company.

#rticle 21@. is applicable to both academic and non/academic institutions. 1. #cademic institutions the liability attaches to the teacher 2. !on/academic institutions the liability attaches to the head o the establishment (Amadora vs. ;A)

4 a student is in&ured and the persons who caused the in&ury were not students, #rts. 21@, 21A o the Family Code and #rt. 21@. o the Civil Code are not applicable. The school is liable in such a case based on the contract between the student and the school. The school is supposed to provide the student ade*uate protection (P+-A vs. ;A). '. E..ect o. &arental Aut"orit! 8pon t"e &ersons o. t"e *"il+ren Art. 220. The parents and those e,ercising parental authorit" shall have with the respect to their unemancipated children on wards the following rights and duties* 3'5 To keep them in their compan"% to support% educate and instruct them b" right precept and good e,ample% and to provide for their upbringing in keeping with their means2 advice and counsel%

345 To give them love and affection% companionship and understanding2 365

To provide them with moral and spiritual guidance% inculcate in them honest"% integrit"% self.discipline% self.reliance% industr" and thrift% stimulate their interest in civic affairs% and inspire in them compliance with the duties of citi$enship2

3;5 To furnish them with good and wholesome educational materials% supervise their activities% recreation and association with others% protect them from bad compan"% and prevent them from ac-uiring habits detrimental to their health% studies and morals2 3(5 To represent them in all matters affecting their interests2 3@5 To demand from them respect and obedience2 3A5 To impose discipline on them as ma" be re-uired under the circumstances2 and

2uardians are liable or damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers o an establishment or enterprise are li(ewise responsible or damages caused by their employees in the service o the branches in which the latter are employed or on the occasion o their unctions. ,mployers shall be liable or the damages caused by their employees and household helpers acting within the scope o their assigned tas(s, even though the ormer are not engaged in any business or industry. The +tate is responsible in li(e manner when it acts through a special agent" but not when the damage has been caused by the o icial to whom the tas( done properly pertains, in which case what is provided in article 21?1 shall be applicable. 5astly, teachers or heads o establishments o arts and trades shall be liable or damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated o in this article shall cease when the persons herein mentioned prove that they observed all the diligence o a good ather o a amily to prevent damage.

3B5 To perform such other duties as are imposed b" law upon parents and guardians. Art. 221. Parents and other persons e,ercising parental authorit" shall be civill" liable for the injuries and damages caused b" the acts or omissions of their unemancipated children living in their compan" and under their parental authorit" subject to the appropriate defenses provided b" law. Art. 222. The courts ma" appoint a guardian of the child9s propert" or a guardian ad litem when the best interests of the child so re-uires. Art. 223. The parents or% in their absence or incapacit"% the individual% entit" or institution e,ercising parental authorit"% ma" petition the proper court of the place where the child resides% for an order providing for disciplinar" measures over the child. The child shall be entitled to the assistance of counsel% either of his choice or appointed b" the court% and a summar" hearing shall be conducted wherein the petitioner and the child shall be heard. 7owever% if in the same proceeding the court finds the petitioner at fault% irrespective of the merits of the petition% or when the circumstances so warrant% the court ma" also order the deprivation or suspension of parental authorit" or adopt such other measures as it ma" deem just and proper. Art. 224. The measures referred to in the preceding article ma" include the commitment of the child for not more than thirt" da"s in entities or institutions engaged in child care or in children9s homes dul" accredited b" the proper government agenc". The parent e,ercising parental authorit" shall not interfere with the care of the child whenever committed but shall provide for his support. =pon proper petition or at its own instance% the court ma" terminate the commitment of the child whenever just and proper. 4. E..ect o. &arental Aut"orit! 8pon t"e &ropert! o. t"e *"il+ren Art. 225. The father and the mother shall jointl" e,ercise legal guardianship over the propert" of the unemancipated common child without the necessit" of a court appointment. +n case of disagreement% the father9s decision shall prevail% unless there is a judicial order to the contrar". /here the market value of the propert" or the annual income of the child e,ceeds P(D%DDD% the parent concerned shall be re-uired to furnish a bond in such amount as the court ma" determine% but not less than ten per centum 3'DE5 of the value of the propert" or annual income% to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides% or% if the child resides in a foreign countr"% in the proper court of the place where the propert" or an" part thereof is situated.

The petition shall be docketed as a summar" special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinar" rules on guardianship shall be merel" suppletor" e,cept when the child is under substitute parental authorit"% or the guardian is a stranger% or a parent has remarried% in which case the ordinar" rules on guardianship shall appl". Art. 226. The propert" of the unemancipated child earned or ac-uired with his work or industr" or b" onerous or gratuitous title shall belong to the child in ownership and shall be devoted e,clusivel" to the latter9s support and education% unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child9s propert" shall be limited primaril" to the child9s support and secondaril" to the collective dail" needs of the famil". Art. 227. +f the parents entrust the management or administration of an" of their properties to an unemancipated child% the net proceeds of such propert" shall belong to the owner. The child shall be given a reasonable monthl" allowance in an amount not less than that which the owner would have paid if the administrator were a stranger% unless the owner% grants the entire proceeds to the child. +n an" case% the proceeds thus give in whole or in part shall not be charged to the child9s legitime. &arents may e4ercise parental authority over their childs property. 2 Einds o =roperties o >inors 1. Adventitious 7#rticle 2218 #dventitious property is earned or ac*uired by the child through his wor( or industry or by onerous or gratuitous title. The child owns this property. The child is also is the usu ructuary as the child en&oys the ruits unless the mode o trans er provides otherwise. The ruits and income o adventitious property must be applied primarily #or the childs support and secondarily #or the #amilys collective needs ?$rticle --A, B-@. The property is administered by the parents since the child has no capacity to act. =ro ectitious property is owned by the parents. Fowever, this property is given to the child or him to administer. For e$ample, the parents may own a arm. Their child is 1? years old. To teach him industry, the parents tell the child to harvest and ta(e care o the arm. The parents own this type o property. The parents are the usu ructuary. Fowever, the child is entitled to a monthly allowance which should be not less than what the owner o the

2. Profectitious 7#rticle 22?8

property would have paid an administrator. The parents may give the entire proceeds o the property to the child. The property is administered by the child. ination o. &arental Aut"orit!

C. 5uspension or 7er

Art. 228. Parental authorit" terminates permanentl"* 3'5 =pon the death of the parents2 345 =pon the death of the child2 or 365 =pon emancipation of the child. Art. 229. =nless subse-uentl" revived b" a final judgment% parental authorit" also terminates* 3'5 =pon adoption of the child2 345 =pon appointment of a general guardian2 365 =pon judicial declaration of abandonment of the child in a case filed for the purpose2 3;5 =pon final judgment of a competent court divesting the part" concerned of parental authorit"2 or 3(5 =pon judicial declaration of absence or incapacit" of the person e,ercising parental authorit". Art. 230. Parental authorit" is suspended upon conviction of the parent or the person e,ercising the same of a crime which carries with it the penalt" of civil interdiction. The authorit" is automaticall" reinstated upon service of the penalt" or upon pardon or amnest" of the offender. Art. 231. The court in an action filed for the purpose in a related case ma" also suspend parental authorit" if the parent or the person e,ercising the same* 3'5 Treats the child with e,cessive harshness or cruelt"2 345 Gives the child corrupting orders% counsel or e,ample2 365 Compels the child to beg2 or 3;5 >ubjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person e,ercising parental authorit". +f the degree of seriousness so warrants% or the welfare of the child so demands% the court shall deprive the guilt" part" of parental authorit" or adopt such other measures as ma" be proper under the circumstances. The suspension or deprivation ma" be revoked and the parental authorit" revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated.

Art. 232. +f the person e,ercising parental authorit" has subjected the child or allowed him to be subjected to se,ual abuse% such person shall be permanentl" deprived b" the court of such authorit". Art. 233. The person e,ercising substitute parental authorit" shall have the same authorit" over the person of the child as the parents. +n no case shall the school administrator% teacher of individual engaged in child care e,ercising special parental authorit" inflict corporal punishment upon the child. Einds o Termination and +uspension 1. +rreversible Termination a. 'eath o the parents 7#rticle 22@ 7188 =arental authority is terminated as concerned. ar as the dead parent is

b. 'eath o the child 7#rticle 22@ 7288 c. ,mancipation 7#rticle 22@ 7388 This is the most common. 4 the parent or parents e$ercising parental authority have sub&ected the child or allowed him or her to be sub&ected to se$ual abuse, the parent or parents shall be deprived permanently by the court o such parental authority. d. Court order under #rticle 232

2. )eversible Termination 7the termination may or may not be permanent8 a. Upon adoption 4t is reversible because there is a possibility that the adoption may be rescinded. 2uardianship may be li ted i such is no longer necessary

b. Upon appointment o a guardian c. Iudicial declaration o abandonment d. Final &udgment o a competent court under #rticle 231 The grounds are6 i. Treats the child with e$cessive harshness or cruelty" ii. 2ives the child corrupting orders, counsel or e$ample" iii. Compels the child to beg" or iv. +ub&ects the child or allows him or her to be sub&ected to acts o lasciviousness e. Iudicial declaration o absence or incapacity o the person 3. >uspension of Parental Authorit" a. =arent is convicted o a crime which carries with it the accessory penalty o civil interdiction b. Court order under #rticle 231

The grounds are6 i. Treats the child with e$cessive harshness or cruelty" ii. 2ives the child corrupting orders, counsel or e$ample" iii. Compels the child to beg" or iv. +ub&ects the child or allows him or her to be sub&ected to acts o lasciviousness

,.7E: Under #rticle 231, parental authority may be suspended or terminated depending on the seriousness o the ground.

=VII. *$s"ellaneous Pro%$s$ons


Art. 356. 8ver" child* 3'5 +s entitled to parental care2 345 >hall receive at least elementar" education2 365 >hall be given moral and civic training b" the parents or guardian2 3;5 7as a right to live in an atmosphere conducive to his ph"sical% moral and intellectual development. Art. 357. 8ver" child shall* 3'5 #be" and honor his parents or guardian2 345 )espect his grandparents% old relatives% and persons holding substitute parental authorit"2 365 8,ert his utmost for his education and training2 3;5 Cooperate with the famil" in all matters that make for the good of the same.

Art. 358. 8ver" parent and ever" person holding substitute parental authorit" shall see to it that the rights of the child are respected and his duties complied with% and shall particularl"% b" precept and e,ample% imbue the child with highmindedness% love of countr"% veneration for the national heroes% fidelit" to democrac" as a wa" of life% and attachment to the ideal of permanent world peace. Art. 359. The government promotes the full growth of the faculties of ever" child. ?or this purpose% the government will establish% whenever possible* 3'5 >chools in ever" barrio% municipalit" and cit" where optional religious instruction shall be taught as part of the curriculum at the option of the parent or guardian2

345 Puericulture and similar centers2 365 Councils for the Protection of Children2 and 3;5 0uvenile courts. Art. 360. The Council for the Protection of Children shall look after the welfare of children in the municipalit". +t shall% among other functions* 3'5 ?oster the education of ever" child in the municipalit"2

345 8ncourage the cultivation of the duties of parents2 365 Protect and assist abandoned or mistreated children% and orphans2 3;5 Take steps to prevent juvenile delin-uenc"2 3(5 Adopt measures for the health of children2 3@5 Promote the opening and maintenance of pla"grounds2 3A5 Coordinate the activities of organi$ations devoted to the welfare of children% and secure their cooperation. Art. 361. 0uvenile courts will be established% as far as practicable% in ever" chartered cit" or large municipalit". Art. 362. /henever a child is found delin-uent b" an" court% the father% mother% or guardian ma" in a proper case be judiciall" admonished. Art. 363. +n all -uestions on the care% custod"% education and propert" of children the latter9s welfare shall be paramount. 1o mother shall be separated from her child under seven "ears of age% unless the court finds compelling reasons for such measure. #rticles 301 to 313 o the Civil Code have not been repealed by the Family Code. >ost though are dead letter law. #rticle 313 is an important since this article deals with the best interest o the child. The second sentence o #rticle 313 is ound in the second paragraph o #rticle 213 o the Family Code. The irst sentence o #rticle 313 is still good law. 7#rticles 23@/2028

=VIII. Su33ar9 5u,$"$al Pro"ee,$ngs

Art. 238. =ntil modified b" the >upreme Court% the procedural rules provided for in this Title shall appl" as regards separation in fact between husband and wife% abandonment b" one of the other% and incidents involving parental authorit". Art. 239. /hen a husband and wife are separated in fact% or one has abandoned the other and one of them seeks judicial authori$ation for a transaction where the consent of the other spouse is re-uired b" law but such consent is withheld or cannot be obtained% a verified petition ma" be filed in court alleging the foregoing facts. The petition shall attach the proposed deed% if an"% embod"ing the transaction% and% if none% shall describe in detail the said transaction and state the reason wh" the re-uired consent thereto cannot be secured. +n an" case% the final deed dul" e,ecuted b" the parties shall be submitted to and approved b" the court. Art. 240. Claims for damages b" either spouse% e,cept costs of the proceedings% ma" be litigated onl" in a separate action.

Art. &*)! (&. 4n case o separation o the parents, parental authority shall be e$ercised by the parent designated by the Court. The Court shall ta(e into account all relevant considerations, especially the choice o the child over seven years o age, unless the parent chosen is un it.

Art. 241. 0urisdiction over the petition shall% upon proof of notice to the other spouse% be e,ercised b" the proper court authori$ed to hear famil" cases% if one e,ists% or in the regional trial court or its e-uivalent sitting in the place where either of the spouses resides. Art. 242. =pon the filing of the petition% the court shall notif" the other spouse% whose consent to the transaction is re-uired% of said petition% ordering said spouse to show cause wh" the petition should not be granted% on or before the date set in said notice for the initial conference. The notice shall be accompanied b" a cop" of the petition and shall be served at the last known address of the spouse concerned. Art. 243. A preliminar" conference shall be conducted b" the judge personall" without the parties being assisted b" counsel. After the initial conference% if the court deems it useful% the parties ma" be assisted b" counsel at the succeeding conferences and hearings. Art. 244. +n case of non.appearance of the spouse whose consent is sought% the court shall in-uire into the reasons for his failure to appear% and shall re-uire such appearance% if possible. Art. 245. +f% despite all efforts% the attendance of the non.consenting spouse is not secured% the court ma" proceed e, parte and render judgment as the facts and circumstances ma" warrant. +n an" case% the judge shall endeavor to protect the interests of the non.appearing spouse. Art. 246. +f the petition is not resolved at the initial conference% said petition shall be decided in a summar" hearing on the basis of affidavits% documentar" evidence or oral testimonies at the sound discretion of the court. +f testimon" is needed% the court shall specif" the witnesses to be heard and the subject.matter of their testimonies% directing the parties to present said witnesses. Art. 247. e,ecutor". The judgment of the court shall be immediatel" final and

Art. 248. The petition for judicial authorit" to administer or encumber specific separate propert" of the abandoning spouse and to use the fruits or proceeds thereof for the support of the famil" shall also be governed b" these rules. Art. 249. Petitions filed under Articles 446% 44( and 46( of this Code involving parental authorit" shall be verified. Art. 250. >uch petitions shall be verified and filed in the proper court of the place where the child resides. Art. 251. =pon the filing of the petition% the court shall notif" the parents or% in their absence or incapacit"% the individuals% entities or institutions e,ercising parental authorit" over the child.

Art. 252. The rules in Chapter 4 hereof shall also govern summar" proceedings under this Chapter insofar as the" are applicable. +ummary &udicial proceedings provided under the Family Code6 1. 'eclaration o presumptive death 2. =artition o spouses property 3. 'isagreement in i$ing domicile ;. 'isagreement in the e$ercise o pro ession 0. 'isagreement in the administration o community property 1. 'isagreement in the administration o con&ugal property ?. =arental authority over oundlings

PROPERT+
=roperty is any physical or incorporeal entity capable o becoming the ob&ect o a &uridical relation.

Class$f$"a#$on of Pro-er#9 :Cas#an;


+. According to 1ature 7#rticle ;1;8 Art. 414. All things which are or ma" be the object of appropriation are considered either* 3'5 +mmovable or real propert"2 or 345 :ovable or personal propert". '. Real or i o(a'le 3Article ;'(5

; Categories o 4mmovables a. )eal b" nature 7#rticle ;10, :1 and :@8 i. !and% buildings% roads% and constructions of all kinds adhered to the soil 4n the case o Lope vs. .rosa! a theater was constructed by using lumber. The lumber supplier was not paid. The lumber supplier was contending his material mans lien e4tends to the land. The 7* said that the material mans lien attaches only to the building since a building is an immovable property by itsel . 4n Associated Insurance vs. I8a, the +C said that the chattel mortgage over the house was void since a house is an immovable and not chattel. -n the other hand, in 7umalad vs. >icencio, the +C said that the parties may treat the house as chattel. The +C urther added that the mortgagor is estopped rom assailing the validity o the chattel mortgage over the house.

Fow do you reconcile the rulings o Associated Insurance vs. I8a and 7umalad vs. >icencio% 7umalad vs. >icencio applies only i no rd 3 parties are pre&udiced. 4s it correct to say that the 7umalad ruling tells us that a chattel mortgage over a building is proper% !o, it does not. # chattel mortgage over a building is always improper since a building is always an immovable. 4n 7umalad vs. >icencio, as between the parties, the chattel mortgage is en orceable. The parties are estopped rom assailing the validity. 2rey #rea in Associated Insurance vs. I8a What i the 3 party was aware o the e$istence o the chattel mortgage and despite rd such (nowledge, the 3 party entered into the real estate mortgage% #ccording to =ro essor 9alane, there may be 2 ways o answering this6 -ne can argue that the real estate mortgage is valid despite rd rd (nowledge o the 3 party. Thats probably why the / party entered into the real estate mortgage. Fe (new that the rd chattel mortgage is ine ective as between 3 parties. -ne can argue that the 3 2. 8
rd rd

party is in bad aith 7#rticles 1A and

ii. :ines% -uarries and slag dumps% while the matter thereof forms part of the bed% and waters either running or stagnant b. )eal b" incorporation 7#rticle ;10, :s 2,3, and ?8 i. Trees% plants% and growing fruits% while the" are attached to the land or form an integral part of an immovable 2rowing ruits and crops are movables in other laws 7i.e. chattel mortgage law8

ii. 8ver"thing attached to an immovable in a fi,ed manner% in such a wa" that it cannot be separated therefrom without breaking the material or deterioration of the object 4t is the result which is important" that it cannot be removed without causing damage. There is no re*uirement that the attachment be done by the owner 7can be done by anyone8. 4n -oard o" Assessments vs. >,)#5C-, the >,)#5C- was assessed real property ta$ on its electric poles. The theory was that the same are real property being adhered to the soil. The +C said that the electric poles are not real property since they can be removed. +uch poles were not attached in i$ed manner.

Art. *2. ,very person must, in the e$ercise o his rights and in the per ormance o his duties, act with &ustice, give everyone his due, and observe honesty and good aith. Art. &0. ,very person who, contrary to law, will ully or negligently causes damage to another, shall indemni y the latter or the same.

iii. ?ertili$er actuall" used on a piece of land 2rowing ruits The ertili3er is real property since it becomes an integral part o the soil.

c. )eal b" destination 7#rticle ;10, :s ;, 0, 1 and A8 i. >tatues% reliefs% paintings or other objects for use or ornamentation% placed in buildings or on lands b" the owner of the immovable in such manner that it reveals the intention to attach them permanentl" to the tenements )e*uisites or 4mmobili3ation 1. 4t is an ob&ect o ornamentation or ob&ect o use. 2. The ob&ect is placed on a building or land. 3. The installation was made by the owner o the building or the land. ;. 4t is attached in such a manner that it reveals an intention to attach it permanently. ii. :achiner"% receptacles% instruments or implements intended b" the owner of the tenement for an industr" or works which ma" be carried on in a building or on a piece of land% and which tend directl" to meet the needs of the said industr" or works )e*uisites or 4mmobili3ation 1. The ob&ect must be either machinery, receptacles, instruments or implements or an industry or wor(. 2. The ob&ect is installed in a tenement. 3. The installation is by the owner o the tenement. ;. 4ndustry or wor(s are carried on in the tenement. 0. The ob&ect carries out directly the industry or wor(. 4n -er6en6otter vs. ;u Cn#ieng! there was a real estate mortgage over the sugar central. #dditional machinery was bought to increase the sugar centrals capacity. The 7* said that the additional machinery became immobili3ed under #rticle ;10 708. Thus, the additional machinery is included in the real estate mortgage. 4n -er6en6otter vs. ;u Cn#ieng, would it have made a di erence i there was no stipulation that the real estate mortgage would cover uture improvements% !o, the improvements would be covered automatically by law as the same are immobili3ed. - course, the parties are ree to stipulate what may be e$cluded rom the mortgage. 4n Davao +a4 9ill vs. ;astillo! the machinery was installed by the lessee. The contract o lease stated that all improvements

introduced by the lessee e$cept machineries would belong to the lessor a ter the e$piration o the lease contract. The +C said that the machinery was not immobili3ed under #rticle ;10 708 since the same was installed by the lessee and not the owner o the building or land. +uppose in Davao +a4 9ill vs. ;astillo, there was a provision in the lease contract that the machinery would pass to the lessor. Would the machinery be immobili3ed% Des, it would since the lessor acts as an agent o the owner 7the owner installs through the agent8. +uppose in Davao +a4 9ill vs. ;astillo! the lease contract was silent on whether or not the machinery would pass to the lessor. =ro essor 9alane is not sure. Fe thin(s that #rticle 11?@ may be applicable. Under #rticle 11?@, the lessor upon the termination o the lease shall pay S o the value o the improvements. +hould the lessor re use to reimburse the improvements, then the lessee may remove the same even though the principal thing may be damaged. #rticle 11?@ does not answer when the machinery becomes immobili3ed in case the lessor decides to buy it. 4s it immobili3ed upon installation or upon purchase% #rticle 11?@ is not clear on this.

iii. Animal houses% pigeon houses% beehives% fish ponds or breeding places of similar nature% in case their owner has placed them or preserves them with the intention to have them permanentl" attached to the land% and forming a permanent part of it2 the animals in these places are included )e*uisites 1. The structure is placed by the owner. 2. The installation must be with the intention to have them permanently attached and orming a part o it. The animals are real property only or as long as they remain there. Thus, i the pigeons ly out o the pigeon house, then they are no longer real property.

iv. Docks and structures which% though floating% are intended b" their nature and object to remain at a fi,ed place on a river% lake% or coast d. )eal b" analog" 7#rticle ;10, :1.8 Contracts for public works% and servitudes and other real rights over immovable propert" 4n contracts or public wor(s, the contract itsel is the real property. For e$ample, the contract to build the ,'+# lyover is real property in itsel . 4n contracts or private wor(s, the contract is personal property.

)eal rights are those rights which are en orceable against the whole world. 7i.e. ownership, possession in concept o holder, servitude, mortgage8. For a real right to be considered real property, the real right must be over an immovable property. For e$ample, the real right o ownership o the land is considered real property while the real right o ownership over a bag is considered personal property. o(a'le The following things are deemed to be personal

2. &ersonal or

Art. 416. propert"* 3'5

Those movables susceptible of appropriation which are not included in the preceding article2

345 )eal propert" which b" an" special provision of law is considered as personal propert"2 365 ?orces of nature which are brought under control b" science2 and 3;5 +n general% all things which can be transported from place to place without impairment of the real propert" to which the" are fi,ed. The following are also considered as personal

Art. 417. propert"*

3'5 #bligations and actions which have for their object movables or demandable sums2 and 345 >hares of stock of agricultural% commercial and industrial entities% although the" ma" have real estate. +ince #rticle ;10 is e$clusive, #rticles ;11 and ;1? are super luous. +hares o stoc( 7even i they shares o stoc( o #yala 5and8 are always personal property. ,.7E: The terms 2real property and 2personal property are common law terms while 2immovable property and 2movable property are civil law terms. The distinction between immovable and movable property is important in mortgages (Lope vs. .rosa! Associated Insurance vs. I8a! and 7umalad vs. >icencio). The distinction is also important in donations since the di erent. orm will be

++. According to Character of #wnership 7#rticles ;1A / ;208 Art. 419. ownership. Propert" is either of public dominion or of private

Art. 420. The following things are propert" of public dominion*

3'5

Those intended for public use% such as roads% canals% rivers% torrents% ports and bridges constructed b" the >tate% banks% shores% roadsteads% and others of similar character2

345 Those which belong to the >tate% without being for public use% and are intended for some public service or for the development of the national wealth. Art. 421. All other propert" of the >tate% which is not of the character stated in the preceding article% is patrimonial propert". Art. 422. Propert" of public dominion% when no longer intended for public use or for public service% shall form part of the patrimonial propert" of the >tate. Art. 425. Propert" of private ownership% besides the patrimonial propert" of the >tate% provinces% cities% and municipalities% consists of all propert" belonging to private persons% either individuall" or collectivel". '. &u'lic +o inion

2 Einds o =roperty o the =ublic 'ominion a. Public use anyone can use 7i.e., ,'+#, )i3al =ar(8 i. =roperty or public use may be owned by the state 7#rticle ;2. 7188 ii. =roperty or public use may be owned by 52Us political subdivisions 7#rticle ;2;8 b. Public service not or the general use but or some state unction 7i.e.! government hospitals, >alcolm Fall8 -nly the state may own property or public service 7#rticle ;2. 7288 There is no such thing as property or public service or 52Us.

,.7E: The term 2public dominion is a civil law term while 2public domain is a common law term. +trictly spea(ing, they are not synonymous. Characteristics o =roperty o the =ublic 'ominion 1. -utside the commerce o man e$cept or purposes o repairs 2. !ot sub&ect to prescription 7because outside the commerce o man8 3. Cannot be levied upon 7i.e. e$ecution or attachment8 ;. Cannot be burdened by any voluntary easement 4n Da6apin vs. ;?I, the private lot was eroded by the sea. 4t eventually become part o the seabed. The +C said that the private lot became part o the public dominion since it is now part o the seabed. 4n 2overnment o the P$ilippines vs. ;a5angis, the +C said that the land was covered by a Torrens title will not protect the land owner i the land becomes part o the seabed de "acto case o eminent domain. 4n Repu5lic vs. ;A! the +C said that the land did not become part o the public dominion. There was only a temporary inundation. -nce the lood had subsided, the land became dry 7see #rticle ;0@8. Cree(s and orest land orm part o the public dominion.

4. &ri(ate o;ners"ip 3 Einds o =roperty o =rivate -wnership a. Patrimonial propert" of the state #ll property o the state which is not o part o the public dominion is patrimonial property 7#rticle ;218. =roperty o public dominion, when no longer intended or public use or or public service, shall orm part o the patrimonial property o the +tate 7#rticle ;228. )ulings in Laurel vs. :arcia 7)oponggi case8 1. The )oponggi property is property o the public dominion since it is or public service. #ccording to =ro essor 9alane, this has serious implications. 4s it possible or property owned by the government in a oreign land to become property o the public dominion% =ublic dominion connotes sovereignty. 4n the case o )oponggi, Iapan is the sovereign authority. 4n this case the =hilippines is only a private land owner. Iapan, being the sovereign, can e$propriate the )oponggi property, and the =hilippines cannot re used. The +C should have answered the *uestion 4s it possible or property owned by the government in a oreign land to become property o the public dominion.

2. =roperty o the public dominion cannot be alienated without it being converted to patrimonial property. -nce the property has been converted, it is alienable. 3. )oponggi has not been converted to patrimonial property. Conversion can only ta(e place by a ormal declaration. +uch declaration cannot be implied. 4t is not clear i this ormal declaration is an e$ecutive or a legislative act.

;. =atrimonial property can be alienated only by an authority o law 7legislature8. b. Patrimonial propert" of !G=s 7political subdivisions8 c. Patrimonial propert" of individuals Art. 423. The propert" of provinces% cities% and municipalities is divided into propert" for public use and patrimonial propert". Art. 424. Propert" for public use% in the provinces% cities% and municipalities% consist of the provincial roads% cit" streets% municipal streets% the s-uares% fountains% public waters% promenades% and public works for public service paid for b" said provinces% cities% or municipalities. All other propert" possessed b" an" of them is patrimonial and shall be governed b" this Code% without prejudice to the provisions of special laws.

=roperties o 52Us 7#rticles ;23 and ;2;8 1. =roperty or public use =roperty or public use consist o roads, streets, s*uares, ountains, public waters, promenades and public wor(s or public service paid or by the 52Us 7#rticle ;2;, :18 #ll other property possessed by any o them is patrimonial and shall be governed by the Civil Code, without pre&udice to the provisions o special laws.

2. =atrimonial property

,.7E: #ccording to =ro essor 9alane, certain decisions have eroded #rticles ;23 and ;2;. 4n 7an 7oco vs. 9unicipal ;ouncil o" Iloilo, a person levied on truc(s, police cars, police stations. The +C said that these could not be levied since they were property or public use. #ccording to =ro essor 9alane, these are not properties or public use since not every in the general public may use them. Following the Civil Code, they are patrimonial property. 4n Eam5oanga del ,orte vs. ;it8 o" Eam5oanga, ollowing the Civil Code de inition, all but 2 o the lots 7playgrounds8 are really patrimonial since there is 52Us cannot own property devoted or public service. 9ut that was not what the +C said.

+++. According to 8ssential ?orm '. *orporeal 4. 3ncorporeal 7i.e.! shares o stoc(, goodwill in a business8 The distinction is important or areas such as mode o trans er

+<. According to Designation '. 5peci.ic The ob&ect is individually determined. For e$ample, 4 promise to sell you my car with license plate =>, 2.@.

4. Generic The ob&ect is determined only as to its (ind. For e$ample, 4 promise to sell you 1... (ilos o rice. The distinction is important in legacies and donations. The distinction is also important in e$tinguishing obligations.

<. According to its >usceptibilit" to >ubstitution '. )un/i'le Fungible means that the thing can be substituted with another thing o the same (ind or *uality. This is determined by the 4!T,!T o the parties. For e$ample, i # borrows a boo( rom 9, it may be the intention o the parties that % return the e4act same book since it has $s annotations.

4. #on<)un/i'le <+. According to its Aptitude for )epeated =se Art. 418. :ovable propert" is either consumable or nonconsumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed2 to the second class belong all the others. '. *onsu a'le

# thing is consumable i according to its nature, it cannot be used appropriately without being consumed. a'le

4. #on<*onsu

,.7E: The legal de inition o consumable in #rticle 1A33 is wrong. The sub&ect matter o a commodatum may be a consumable or not. 9ut, it must be non/ ungible since the e$act, same thing must be returned. 4n a mutuum, the obligor can return a di erent thing as long as it is o the same (ind and *uality. <++. According to its >usceptibilit" to Division '. Di(isi'le 4. 3n+i(isi'le The distinction is important in partition 7either physical or constructive partition8

<+++. According to its 8,istence in Time '. &resent res existens 4. )uture res "uturae The distinction is important in sales. 4t is also important in donations. # party cannot donate uture things. 4t is also important in succession. # party cannot enter into a contract regarding uture inheritance.

+J. According to its Dependence '. &rincipal 4. Accessor!

Art. *2)). 9y the contract o loan, one o the parties delivers to another, either something not consumable so that the latter may use the same or a certain time and return it, in which case the contract is called a commodatum" or money or other consumable thing, upon the condition that the same amount o the same (ind and *uality shall be paid, in which case the contract is simply called a loan or mutuum. Commodatum is essentially gratuitous. +imple loan may be gratuitous or with a stipulation to pay interest. 4n commodatum the bailor retains the ownership o the thing loaned, while in simple loan, ownership passes to the borrower.

The general rule is that the accessory ollows the principal. #n e$ception to the general rules is reverse accession 7#rticle 12. , Family Code8. The distinction is important in sales. When one buys a car, the car should include the accessories such as the spare tire, the radio, etc. The distinction is also important in lease contracts.

Bun,le of R$g7#s
+. #wnership Art. 427. #wnership ma" be e,ercised over things or rights. -wnership is the independent and general right o a person to control a thing in its possession, en&oyment, disposition and recovery sub&ect to no restrictions e$cept those validly imposed by the state or by &uridical transactions. 4n )oman 5aw, ownership was an absolute right. -wnership is evolving in light o social &ustice, police power in order to promote the wel are o the people and environmental concerns. !ow, we have concepts such as stewardship. !ow, one must comply with sa ety and environmental regulations. !ow, building permits are re*uired. -wnership is accompanied by the ollowing rights (P$il. -an6ing vs. Lui +$e)6 1. ius possidendi the right to possess 2. ius utendi the right to use 3. ius "ruendi the right to en&oy the ruits ;. ius a5utendi the right to destroy 7but cannot harm others8 0. ius disponendi the right to dispose, or the right to alienate, encumber, trans orm 1. ius vindicandi the right o action available to the owner to recover the property against the holder or possessor ?. ius accessions the right to accessions Characteristics o -wnership 1. General 7#rticle ;2@8 Art. 428. The owner has the right to enjo" and dispose of a thing% without other limitations than those established b" law.

Art. *&0. The ownership o improvements, whether or utility or adornment, made on the separate property o the spouses at the e$pense o the partnership or through the acts or e orts o either or both spouses shall pertain to the con&ugal partnership, or to the original owner/ spouse, sub&ect to the ollowing rules6 When the cost o the improvement made by the con&ugal partnership and any resulting increase in value are more than the value o the property at the time o the improvement, the entire property o one o the spouses shall belong to the con&ugal partnership, sub&ect to reimbursement o the value o the property o the owner/spouse at the time o the improvement" otherwise, said property shall be retained in ownership by the owner/spouse, li(ewise sub&ect to reimbursement o the cost o the improvement. 4n either case, the ownership o the entire property shall be vested upon the reimbursement, which shall be made at the time o the li*uidation o the con&ugal partnership.

The owner has also a right of action against the holder and possessor of the thing in order to recover it. The owner may use the thing in all its possibility sub&ect to restrictions. For e$ample, an owner is not limited in using a bag merely as a place where goods are (ept. The owner may use the bag as a hat. -wnership can e$ist even without any other right. The right o ownership e$ists distinctly rom its constituent or component parts 7i.e. ius accessions, ius a5utendi, etc8. The component rights can be reduced or given to others 7i.e. usu ruct the right to en&oy the ruits8. There can only be 1 ownership at one time. 4n co/ownership, there is only 1 ownership, but this is shared ownership. -wnership is generally not limited as to time unless there is stipulation to the contrary. -wnership is inherently unlimited, but it is not necessarily so. -wnership can be restricted. These restrictions on ownership may be imposed by the +tate or by &uridical transactions 7i.e. contract8. 4n several cases, the +C has upheld the validity o deed restrictions with regard to how buildings are to be constructed.

2. +ndependent 3. Abstract

;. 8lastic

0. 8,clusive

1. Generall" Perpetual

Art. 429. The owner or lawful possessor of a thing has the right to e,clude an" person from the enjo"ment and disposal thereof. ?or this purpose% he ma" use such force as ma" be reasonabl" necessar" to repel or prevent an actual or threatened unlawful ph"sical invasion or usurpation of his propert". This is (nown as the doctrine o sel /help. This is one o the instances in which a person is allowed to ta(e the law into his own hands and to use orce. !ormally, the use o violence is reserved to the sovereign power o the state. #rticle ;2A is similar to #rticle 11, :; o the )evised =enal Code. )e*uisites
<

<

#rticle 11. <usti"8ing circumstances. The ollowing do not incur any criminal liability6 ;. #ny person who, in order to avoid an evil or in&ury, does an act which causes damage to another, provided that the ollowing re*uisites are present6 First. That the evil sought to be avoided actually e$ists" +econd. That the in&ury eared be greater than that done to avoid it" Third. That there be no other practical and less harm ul mean o preventing it.

1. =erson who employs orce or violence must be the owner 7actual or presumed8 or a law ul possessor 2. That person must be in actual physical possession The right in #rticle ;2A is a possessory right only. # owns land in Nasugbu. $ sees %s goons. % tells $ to get out. $ success#ully thwarts the invasion. %s goons are in;ured. *an $ be success ully charged with physical in&uries% !o, i reasonable orce was used. In the same e4ample, %s goons succeeds in throwing out #. # comes bac( and in licts orce. 4s this allowed% !o, # is not in physical possession o the land. $s remedy is to go to court under $rticle E// .

3. There must be actual or imminent aggression ;. -nly reasonable orce is employed by the owner or law ul possessor Art. 430. 8ver" owner ma" enclose or fence his land or tenements b" means of walls% ditches% live or dead hedges% or b" an" other means without detriment to servitudes constituted thereon. The right o an owner to enclose his tenement is limited by the servitudes e$isting on it. 4n Lunod vs. 9eneses, the owner o the lower tenement created a structure impeding the low o water rom the upper tenement to the lower tenements. Thus, the upper tenements were looded. +C said that a person could enclose his property to obstruct the natural low o waters rom the upper tenements.

Art. 431. The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person. The owner may use property only in such a manner that it does not in&ure others sic utere tuo ut alienum non laedas. This encapsulates everything in the law on things.

Art. 432. The owner of a thing has no right to prohibit the interference of another with the same% if the interference is necessar" to avert an imminent danger and the threatened damage% compared to the damage arising to the owner from the interference% is much greater. The owner ma" demand from the person benefited indemnit" for the damage to him. This is basically the same rule as #rticle 11, :;; o the )evised =enal Code prevention o a greater in&ury. )e*uisites6 1. The inter erence must be necessary to avert imminent danger. 2. The threatened damage must be greater than the damage caused to the owner.

Art. 4)). #ctual possession under claim o ownership raises disputable presumption o ownership. The true owner must resort to &udicial process or the recovery o the property.

3. -nly such inter erence as is necessary shall be made in order to avert the damage. #n e$ample o #rticle ;32 is a case in criminal law. 4n that case a car was burning near a gas station. The car was pushed away rom the gar station. Fowever in the process, a house was burned. 9 is running away rom drug addicts. 9 passes a house. 9 smashes the door and is able to save himsel#. %s actions are ;usti#ied. % is not guilty o# malicious mischie since 9 was trying to prevent in&ury to himsel . General )ule* Compensation may be demanded by the property owner. Exception: !o compensation i the in&ury is caused by the property owner and the person who intervened was not at ault. % is drunk. % is walking home and singing 2%ayan Ho. % passes Is house. I has a 'oberman. The 'oberman attac(s 9. 9 stabs the 'oberman with a +wiss army (ni e. 'id 9 act under #rticle ;32% Des. 'oes 9 have to pay% !o, because the danger came #rom the property itsel#, the :oberman, and it was not %s #ault. 9 sees 'oberman sleeping. 9 starts shouting at the 'oberman. 9 (ic(s the dog. 'og attac(s 9. 9 stabs the dog. 9 is &usti ied in (illing the dog under #rticle ;32. 9 has a right to de end himsel . Fowever, 9 has to pay I since 9 provo(ed the dog.

Art. 433. Actual possession under claim of ownership raises disputable presumption of ownership. The true owner must resort to judicial process for the recover" of the propert". #ssuming that the possessor claiming the ownership is illegitimate, the true owner 7not in possession8 must go to court. Fe cannot apply the doctrine o sel /help under #rticle ;2A since he is not in possession. #rticle ;33 applies when the plainti is not in possession o the property. )emedies 1. #ction or orcible entry The action o orcible entry is or the recovery o the material or physical possession and must be brought in the >TC within 1 year rom the date o the orcible entry. # plenary action or the recovery o the possession o real estate, upon mere allegation and proo o a better right thereto, and without allegation o proo o title. This action can only be brought a ter the e$piration o 1 year. #n action whereby the plainti alleges ownership over a parcel o land and see(s recovery o its possession.

2. Accion pu5liciana

3. Accion reivindicatoria

;. Kuieting o title Art. 476. /henever there is a cloud on title to real propert" or an" interest therein% b" reason of an" instrument% record% claim% encumbrance or proceeding which is apparentl" valid or effective but

is in truth and in fact invalid% ineffective% voidable% or unenforceable% and ma" be prejudicial to said title% an action ma" be brought to remove such cloud or to -uiet the title. An action ma" also be brought to prevent a cloud from being cast upon title to real propert" or an" interest therein. Art. 477. The plaintiff must have legal or e-uitable title to% or interest in the real propert" which is the subject matter of the action. 7e need not be in possession of said propert". Art. 478. There ma" also be an action to -uiet title or remove a cloud therefrom when the contract% instrument or other obligation has been e,tinguished or has terminated% or has been barred b" e,tinctive prescription. Art. 479. The plaintiff must return to the defendant all benefits he ma" have received from the latter% or reimburse him for e,penses that ma" have redounded to the plaintiff9s benefit. Art. 480. The principles of the general law on the -uieting of title are hereb" adopted insofar as the" are not in conflict with this Code. Art. 481. The procedure for the -uieting of title or the removal of a cloud therefrom shall be governed b" such rules of court as the >upreme Court shall promulgated. 5i(e accion pu5liciana, it involves only real property and is either curative or preventive. Unli(e accion pu5liciana, *uieting o title applies to both ownership and possession. 4n *uieting o title, the complaint must allege the e$istence o an apparently valid or e ective instrument or other claim which is in reality void, ine ective, voidable or unen orceable. #rticle ;?1 seems to interchange removal o a cloud with *uieting o title. 4n common law, there is a distinction. Under common law, an action to *uiet title must set orth an adverse claim, but it must not be speci ic. -nly a general claim is made. #n action to remove a cloud re*uires a speci ic claim. #rticle ;?1 can either be a preventive 7:28 or a remedial action 7:18. Kuieting o title is a =uasi in rem action. 4 the plainti in an action to *uiet title is in possession o the property, then the action to *uiet title is imprescriptible 7 ?a8a vs. ;A8.

#s long as a person is in possession o the property, it is presumed that the person in possession is the owner. The burden is on the challenger to prove st otherwise. The 1 sentence o #rticle ;33 is similar to #rticle 0;1 . Fowever, under #rticle 1131 or purposes o prescription, &ust title is not presumed. 4 one see(s to ac*uire title by prescription, the burden is on the

Art. %4*. # possessor in the concept o owner has in his avor the legal presumption that he possesses with a &ust title and he cannot be obliged to show or prove it.

applicant claiming to be the owner. 4n #rticle 1131, it is the possessor who is the applicant. The possessor is the one who has the burden to prove that he ac*uired the property through prescription. 4t is not presumed. 4n #rticles ;33 and 0;1, the possessor does not claim to own it by prescription. The possessor ta(es a de ensive stance. Art. 434. +n an action to recover% the propert" must be identified% and the plaintiff must rel" on the strength of his title and not on the weakness of the defendant9s claim. Two things must be proved in an accion reivindicatoria6 1. The identity o the property 2. &lainti##s title to it Art. 435. 1o person shall be deprived of his propert" e,cept b" competent authorit" and for public use and alwa"s upon pa"ment of just compensation. >hould this re-uirement be not first complied with% the courts shall protect and% in a proper case% restore the owner in his possession. This is not really part o civil law. This is merely an adoption o the Constitutional provision on eminent domain.

Art. 436. /hen an" propert" is condemned or sei$ed b" competent authorit" in the interest of health% safet" or securit"% the owner thereof shall not be entitled to compensation% unless he can show that such condemnation or sei$ure is unjustified. Under police power, the state deprives the individual o the property without &ust compensation. = has a pair o soc(s which he has been wearing or ? months. 4t is spreading numerous diseases. The state can ta(e the pair o soc(s to burn. 4n doing so, there is no need or compensation. 4 the state wants to do research on germ war are, and the state ta(es the soc(s and its germs, the state should compensate =.

Art. ;6A. The owner of a parcel of land is the owner of its surface and of ever"thing under it% and he can construct thereon an" works or make an" plantations and e,cavations which he ma" deem proper% without detriment to servitudes and subject to special laws and ordinances. 7e cannot complain of the reasonable re-uirements of aerial navigation. 4n )oman law there is an old saying, 2;u#us est solum! e#us est us=ue ad coelum et ad in"eros 7the owner o a piece o land owns everything above and below it to an inde#inite e4tent@. This is not true anymore. ,therwise, airplanes would commit aerial trespass. Fowever, it cannot be denied that the landowner owns the land, the earth and the air. -therwise, his ownership is useless. Where do you draw the balance% The property owner owns the space and subsoil as ar as

Art. **)*. For the purposes o prescription, &ust title must be proved" it is never presumed.

is necessary or his practical interest and ability to assert dominion. 9eyond this, the owner has nothing. This would depend on a case to case basis. Art. 438. 7idden treasure belongs to the owner of the land% building% or other propert" on which it is found. 1evertheless% when the discover" is made on the propert" of another% or of the >tate or an" of its subdivisions% and b" chance% one.half thereof shall be allowed to the finder. +f the finder is a trespasser% he shall not be entitled to an" share of the treasure. +f the things found be of interest to science of the arts% the >tate ma" ac-uire them at their just price% which shall be divided in conformit" with the rule stated. Art. 439. F" treasure is understood% for legal purposes% an" hidden and unknown deposit of mone"% jewelr"% or other precious objects% the lawful ownership of which does not appear. 4 you ind treasure in your land, the treasure is yours. When a person inds treasure in a land that is not his, S goes to the inder and S goes to the owner o the land, building or other property. )e*uisites When a =erson Finds Treasure in a 5and That is !ot Fis 1. The deposit must be hidden and un(nown 7#rticle ;3A8. 2. There is no law ul owner. 3. 'iscovery is by chance 7#rticle ;3@8. There is debate as to what chance means. -ne school o thought thin(s that chance means there was an intent to ind treasure e$cept that inding it was serendipitous. #nother school o thought is that the inder should not have no intentions in the irst place to loo( or treasure.

;. 'iscoverer must not be a trespasser. Accession #ccession is not a mode o ownership. 4t is a mere concomitant right o ownership. 4t is a mere incident or conse*uence o ownership. Art. 440. The ownership of propert" gives the right b" accession to ever"thing which is produced thereb"% or which is incorporated or attached thereto% either naturall" or artificiall". The law wisely does not de ine accession. 4t merely tells us what accession does. 2 Einds o #ccession A. Accession +iscreta The right pertaining to the owner o a thing over everything produced thereby 7#rticle ;;28

1. 1atural fruits

!atural ruits are the spontaneous products o the soil, and the young and other products o animals. 9 owns a male 2erman +hepherd. > owns a emale 2erman +hepherd. The 2 dogs breed. To whom does the litter go% To the emale since birth ollows the womb 7partus re=uites ventreim8. 4ndustrial ruits are those produced by lands o any (ind through cultivation or labor. Civil ruits are the rents o buildings, the price o leases o lands and other property and the amount o perpetual or li e annuities or other similar income. +toc( dividends are civil ruits being surplus pro it (-ac$rac$ vs. +ei"ert). General )ule* Fruits belong to the owner. Exception: The ruits do not belong to the owner in the ollowing instances6 1. =ossessor in good aith 7#rticle 0;; 8 2. Usu ruct 3. 5ease ;. #ntichresis 7#rticle 2132 8 0. =ledge

2. +ndustrial fruits

3. Civil fruits

F. Accession continua The right pertaining to the owner o a thing over everything that is incorporated or attached thereto either naturally or arti icially. a. 3n+ustrial 7#rticles ;;0/;018 Art. 445. /hatever is built% planted or sown on the land of another and the improvements or repairs made thereon% belong to the owner of the land% subject to the provisions of the following articles.

1. +mmovables

Art. %44. # possessor in good aith is entitled to the ruits received be ore the possession is legally interrupted. !atural and industrial ruits are considered received rom the time they are gathered or severed. Civil ruits are deemed to accrue daily and belong to the possessor in good aith in that proportion.

#rt. 2132. 9y the contract o antichresis the creditor ac*uires the right to receive the ruits o an immovable o his debtor, with the obligation to apply them to the payment o the interest, i owing, and therea ter to the principal o his credit.

Art. 446. All works% sowing% and planting are presumed made b" the owner and at his e,pense% unless the contrar" is proved. i. -uilding

ii. Planting iii. +o4ing (,ote: I also included Dean ;8nt$ia Roxas@del ;astillos charts in our civil law reviewer since those charts are more complete. However, I retained Professor Balanes charts since they are etter as memory aids. !ean del "astillos charts come first.# 'st case* !andowner is the builderLplanterLsower and is using the materials of another. Art. 447. The owner of the land who makes thereon% personall" or through another% plantings% constructions or works with the materials of another% shall pa" their value2 and% if he acted in bad faith% he shall also be obliged to the reparation of damages. The owner of the materials shall have the right to remove them onl" in case he can do so without injur" to the work constructed% or without the plantings% constructions or works being destro"ed. 7owever% if the landowner acted in bad faith% the owner of the materials ma" remove them in an" event% with a right to be indemnified for damages. !A1D#/18) +> T78 F=+!D8)LP!A1T8)L>#/8) Goo+ )ait" Fas the6 Can ac*uire the materials provided he pays 1. )ight to receive payment or the value thereo . the materials" -) or value o #/18) #? T78 :AT8)+A!> Goo+ )ait"

2. 5imited right o removal i there would be no in&ury to wor( constructed, or without plantings or constructions being destroyed 7#rticle ;;?8 =a+ )ait" Can ac*uire the materials provided he pays the value thereo plus damages. Goo+ )ait" Fas the6 1. )ight to receive payment or value o materials plus damages" -) 2. #bsolute right o removal o the wor( constructed in any event 7whether or not substantial in&ury is caused8 plus damages Goo+ )ait" =a+ )ait" Can ac*uire the materials without paying 5oses the materials completely without or the value thereo and entitled to receiving any indemnity conse*uential damages due to the de ects o the materials

=a+ )ait"

=a+ )ait" Treat as i both are in good aith.

LAND OWNER IS BUILDER/PLANTER/SOWER Goo+ )ait" Goo+ )ait"

OWNER OF MATERIAL 1. 5imited right o removal i there would be no in&ury to wor( constructed, or without plantings or constructions being destroyed 7#rticle ;;?8" or 2. )ight to receive payment the materials or value o

=a+ )ait"

Goo+ )ait" 1. )ight to receive payment or value o materials plus damages" or 2. #bsolute right o removal o the wor( constructed in any event plus damages

Goo+ )ait" )ight to ac*uire the improvements without paying indemnity plus damages =a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%))

=a+ )ait"

=a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%))

The land owner builderHplanterHsower is in good aith i he believes that the land belongs to him and he is ignorant o any de ect or law in his title and he does not (now that he has no right to use such materials. 9ut when his good aith is coupled with negligence, he is liable or damages. The land owner builderHplanterHsower is in bad aith i he ma(es use o the land or materials which he (nows belong to another. The owner o the materials is in good aith i he did not (now that another was using his materials, or granting that he did (now, i he in ormed the user o the ownership and made the necessary prohibition. The owner o the materials is in bad aith i he allows another to use the materials without in orming him o the ownership thereo . 4ndemni ication or damages shall comprehend not only the value o the loss su ered but also that o the pro its which the obligee ailed to reali3e. Pro5lem: >ay the land owner builderHplanterHsower choose to return the materials instead o reimbursing their value even without the consent o the owner o the materials%

Art. 4%). 4 there was bad aith, not only on the part o the person who built, planted or sowed on the land o another, but also on the part o the owner o such land, the rights o one and the other shall be the same as though both had acted in good aith. 4t is understood that there is bad aith on the part o the landowner whenever the act was done with his (nowledge and without opposition on his part.

4t depends6 1. 4 no damage has been made to the materials, or they have not been trans ormed as a result o# the construction, they may be returned at the land owners e4pense. 2. 4 damage has been made or there has been trans ormation, they cannot be returned anymore. Pro5lem: +uppose the land owner builderHplanterHsower has already demolished or removed the plantings, constructions or wor(s, is the owner o the materials still entitled to claim them% There are di erent opinions on this matter but the best rule seems to be that the -> is still entitled to get them since the law ma(es no distinction. >oreover, the land owner may insist on returning them or evidently there is no accession. 4 case* FuilderLPlanterL>ower builds% plants% or sows on anothers land using his own materials. Art. 448. The owner of the land on which an"thing has been built% sown or planted in good faith% shall have the right to appropriate as his own the works% sowing or planting% after pa"ment of the indemnit" provided for in articles (;@ and (;B% or to oblige the one who built or planted to pa" the price of the land% and the one who sowed% the proper rent. 7owever% the builder or planter cannot be obliged to bu" the land if its value is considerabl" more than that of the building or trees. +n such case% he shall pa" reasonable rent% if the owner of the land does not choose to appropriate the building or trees after proper indemnit". The parties shall agree upon the terms of the lease and in case of disagreement% the court shall fi, the terms thereof. !A1D #/18) Goo+ )ait" Fas the option to6 1. To appropriate or ac*uire whatever has been built, planted or sown a ter paying indemnity which includes necessary e$penses and use ul e$penses. ,ntitled to receive indemnity or necessary, use ul and lu$urious e$penses 7i the land owner appropriates the lu$urious improvements8 and has a right o retention 4 he wishes to appropriate the over the land without having to pay or the lu$urious improvement, he must also rent until the land owner pays the indemnity pay the lu$urious e$penses. -) Can remove use ul improvements provided it does not cause any in&ury 4 the land owner does not appropriate the lu$urious improvements, he can remove the same provided there is no in&ury to the principal thing F=+!D8)LP!A1T8)L>#/8) +> T78 #/18) #? T78 :AT8)+A!> Goo+ )ait"
nd

2. To obligate the builderHplanter to pay the price o the land and the sower to pay the proper rent. 3o4ever! the land owner cannot obligate the builderH planter to buy i the value o land is more then the building or planting.

To purchase the land at air mar(et value when the value is not considerably more than the value o the builder or trees 4 the value o the land is considerably more than the value o the building or trees, he cannot be compelled to buy the land" in such case, he shall pay reasonable rent i the land owner does not choose option 1. 4 he cannot pay the purchase price o the land, the land owner can re*uire him to remove what has been built or planted. 4 he cannot pay the rent, the land owner can e&ect him rom the land.

=a+ )ait"

Goo+ )ait"

To ac*uire whatever has been built, planter 4 land owner ac*uires whatever has been or sown by paying the indemnity plus built, planted or sown, he must be damages indemni ied o the value plus damages 4 land owner does not ac*uire, he can remove whatever has been built or planted whether or not it will cause any in&ury and is entitled to damages. 4 land owner does not ac*uire, he cannot insist on purchasing the land. Goo+ )ait" Fas the option6 1. To ac*uire whatever has been built, planter or sown without paying or indemnity e$cept necessary e$penses or the preservation o the land only and lu$urious e$penses i he decides to ac*uire the lu$urious ornaments plus damages 5oses what has been built, planted or sown. ,ntitled to reimbursement or necessary e$penses or the preservation o the land but has no right o retention. !ot entitled to reimbursement or use ul e$penses and cannot remove the use ul improvements even i the removal will not cause any in&ury !ot entitled to reimbursement or lu$urious =a+ )ait"

e$penses e$cept when the land owner ac*uires the lu$urious improvements, the value o which is the one at the time the land owner enters possession 7the depreciated value8 Can remove lu$urious improvements i it will not cause in&ury and 5- does not want to ac*uire them. 2. To compel the builderH planter to pay >ust pay the price o the land or the rent the price o the land and the sower to plus damages pay the proper rent plus damages 3. To demand the demolition or removal o the wor( at the e$pense o the builderHplanterH sower =a+ )ait" >ust remove lu$urious improvements i it will not cause in&ury and 5- does not want to ac*uire them. =a+ )ait" Treat as i both are in good aith.

4n applying #rticle ;;@, the land owner, i in good aith, should be given the irst option because he is the owner o the land especially i he is dealing with a person in bad aith. Fis right is older and by the principle o accession, he is entitled to the ownership o the accessory thing. The land owner is in good aith6 1. I# he is ignorant o# the builderJplanterJsowers act 2. ,ven i he did (now, he e$pressed his ob&ection 3. 4 he believed that the builderHplanterHsower has a right to construct, plant or sow -therwise, he shall be in bad aith.

The builderHplanterHsower is in good aith i he thought that the land was his. LAND OWNER BUILDER/PLANTER/S OWER IS Goo+ )ait" the
THE MATERIALS THE

OWNER OF

Goo+ )ait" 1. 5and owner can ac*uire improvement by paying" or

&. 5and owner can obligate builderHplanter to buy the land or collect rent rom sower. 3o4ever land owner cannot

Art. 4%). 4 there was bad aith, not only on the part o the person who built, planted or sowed on the land o another, but also on the part o the owner o such land, the rights o one and the other shall be the same as though both had acted in good aith. 4t is understood that there is bad aith on the part o the landowner whenever the act was done with his (nowledge and without opposition on his part.

obligate the builderHplanter to buy i the value o land is more then the building or planting. =a+ )ait" Goo+ )ait" 1. )emove materials plus damages" or 2. 'emand payment damages Goo+ )ait" .ptions 1. #ppropriate wor(s without indemnity plus damages" or 2. 'emolish plus damages" or 3. Compel 9=+ to buy land regardless o the value o the land and the 9=, plus damages .5ligations 1. 5and owner must pay or necessary e$penses or preservation. 2. 5and owner must pay 9=+ e$penses under #rticle ;;3 i applicable =a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%))
rd

or materials plus

=a+ )ait"

=a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%))

6 case* FuilderLPlanterL>ower builds% plants% or sows on anothers land with materials owned b" third person !A1D #/18) Goo+ )ait" Fas the option 1. To ac*uire whatever has been built, planted or sown provided he pays the indemnity 7which includes the value o what has been built, planted or sown plus value o the materials8 F=+!D8)LP!A1T8)L>#/8) Goo+ )ait" To receive indemnity rom the land owner and has a right o retention over the land until the land owner pays #/18) #? T78 :AT8)+A!> Goo+ )ait" To receive indemnity rom the builderHplanterHsower who is principallyH primarily liable. 4 the builderH planterHsower is insolvent, then demand indemnity rom land owner who is subsidiarily liable. 9ut has no right o retention against the builderHplanterHsower and more so with the land

Art. 44). Fe who receives the ruits has the obligation to pay the e$penses made by a third person in their production, gathering, and preservation.

owner 2. To oblige the builderH To buy the land planterHsower to buy the land unless the value thereo is considerably more than the value o the building or trees To receive indemnity rom the builderHplanterHsower only. The land owner has no subsidiary liability. 9ut has right o retention. -) To remove materials i there will be no in&ury on the building or trees #!' Fas a material rent lien against the builderHplanterH sower or the payment o the value o the materials Goo+ )ait" Fas the option 1. To ac*uire whatever has been built, planted or sown provided he pays the indemnity 7which includes the value o what has been built, planted or sown plus value o the materials8 To receive indemnity rom Whatever is the choice o the land owner and has a the land owner right o retention over the 1. Fe loses the materials in land until the land owner avor o the pays builderHplanterH sower #!' 2. Fe has no right to receive indemnity rom the 9=+ Goo+ )ait" =a+ )ait"

2. To oblige the builderH To buy the land planterHsower to buy the land unless the value thereo is considerably more than the value o the building or trees Goo+ )ait" Fas the option 1. To ac*uire whatever has been built, planted or sown without paying indemnity e$cept necessary e$penses, i he should ac*uire lu$urious improvements =a+ )ait" 5oses what has been built, planted or sown but he is entitled to be indemni ied or necessary e$penses and lu$urious e$penses should the land owner ac*uire lu$urious ornaments

=a+ )ait" (+ince 5ot$ 5uilderFplanterF so4er and t$e o4ner o" t$e materials are in 5ad "ait$! treat t$em as i" 5ot$ in good "ait$)

Whatever is the choice o the land owner, he has the Fas no right o removal right to receive indemnity even i it will not cause any or the value o the in&ury materials rom the builderH

2. To oblige the builderH To pay the price o the land planter to pay the price o the land and the sower to pay the proper rent 3. To demolish or remove Cannot do anything about it what has been built or so he must remove planted

planterHsower only. The land owner has no subsidiary liability whatsoever. 4 land owner chooses option 1, he has no right to remove materials even i there will be no in&ury. 4 land owner chooses option 2, he has the right o removal provided it does not cause any in&ury to the property to which it is attached. Fas liability or damages to whoever ends up owning the building or the in erior *uality)ait" o materials. Goo+ To receive indemnity or value o materials rom builderHplanterHsower principally or rom land owner in case the builderH planterHsower is insolvent 7subsidiary liability8 =a+ )ait" !o right to receive indemnity or value o materials rom builderH planterHsower nor rom land owner who ends up owning the building or trees. #/18) #? T78 :AT8)+A!> Goo+ )ait" 1. 5imited right o removal i there would be no in&ury to wor( constructed, or without plantings or constructions being destroyed 7#rticle ;;?8" or 2. )ight to payment receive or value

=a+ )ait"

Goo+ )ait"

To ac*uire what has been To receive indemnity rom built, planted or sown by land owner plus damages paying the indemnity plus damages to builderHplanterH Cannot insist on purchasing sower the land =a+ )ait" Goo+ )ait"

To ac*uire what has been To receive indemnity rom built, planted or sown by land owner plus damages paying the indemnity plus damages to builderHplanterH Cannot insist on purchasing sower the land !A1D #/18) Goo+ )ait" 1. 4 the owner o the materials does not remove the materials and the builderHplanterH sower pays, the land owner can ac*uire the improvement by paying the builderHplanterH sower 2. 4 the owner o the F=+!D8)LP!A1T8)L>#/8) Goo+ )ait"

materials does not remove the materials, and the builderHplanterH sower pays, the land owner can obligate the builderHplanter to buy the land or collect rent rom sower. Fowever the land owner cannot obligate the builderHplanter to buy i the value o land is more then the building or planting. 3. The land owner is subsidiarily liable to the owner o the materials. Goo+ )ait" Goo+ )ait"

o the materials rom builderHplanterH sower. 5and owner is subsidiarily liable.

=a+ )ait"

what was built, 5ose the materials to the 1. 5and owner can ac*uire Eeep the improvement by planted or sown without builderHplanterHsower paying" or indemnity to the owner o without right to indemnity 2. 5and owner can obligate the materials plus damages rom the owner o the builderHplanter to buy materials the land or collect rent rom sower. Fowever land owner cannot obligate the builderH planter to buy i the value o land is more then the building or planting. 3. 5- not subsidiary liable or cost o materials Goo+ )ait" .ptions 1. #ppropriate wor(s without indemnity plus damages" or 2. 'emolish plus damages" or 3. Compel builderHplanter to buy land regardless o the value o the land and the sower to pay rent, plus damages .5ligations =a+ )ait" =a+ )ait" )ight to receive payment or value o the materials

1. 5and owner must pay or necessary e$penses or preservation. 2. 5and owner must pay builderHplanterHsower e$penses under #rticle < ;;3 i applicable =a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%) ) =a+ )ait" +ubsidiarily liable to the owner o the materials or value o materials =a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%)) Goo+ )ait" 1. )emove improvements plus damages against the land owner" or 2. 'emand payment or improvement plus damages =a+ )ait" 1. 4 the owner o the materials does not remove the materials and the builderHplanterHsower pays, the land owner can ac*uire the improvement by paying the builderHplanterHsower 2. 4 the owner o the materials does not remove the materials, and the builderHplanterHsower pays, the land owner can obligate the builderHplanter to buy the land or collect rent rom the sower.
<

=a+ )ait" (+ame as t$oug$ acted in good "ait$ under Article 4%)) Goo+ )ait" 1. )emove materials i possible without in&ury 2. Collect value o materials rom builderHplanterH sower. 5and owner is subsidiarily liable Goo+ )ait" 1. )ight to receive payment or value o materials romthe builderHplanterHsower and the land owner is subsidiarily liable plus damages" or 2. #bsolute right o removal o the wor( constructed in any event plus damages

=a+ )ait"

Art. 44). Fe who receives the ruits has the obligation to pay the e$penses made by a third person in their production, gathering, and preservation. Art. 4%). 4 there was bad aith, not only on the part o the person who built, planted or sowed on the land o another, but also on the part o the owner o such land, the rights o one and the other shall be the same as though both had acted in good aith. 4t is understood that there is bad aith on the part o the landowner whenever the act was done with his (nowledge and without opposition on his part.

owner cannot obligate the 9= to buy i the value o land is more then the building or planting. 3. The land owner is subsidiarily liable to the owner o the materials. Goo+ )ait" 1. 4 the owner o the materials does not remove pays, the land owner can ac*uire the improvement by paying the builderH planterHsower. 2. 4 the owner o the materials does not remove the materials, and the builder, planter or sower pays, the land owner can obligate the builderHplanter to buy the land or collect rent rom sower. Fowever the land owner cannot obligate the builderHplanter to buy i the value o land is more then the building or planting. 3. 5and owner is subsidiarily liable to the =a+ )ait" Goo+ )ait" =a+ )ait" Goo+ )ait" 1. )emove materials i possible without in&ury plus damages against builderH planterHsower. 2. Collect value o materials rom builderHplanterHsower plus damages against the builderHplanterHsower. The land owner is subsidiarily liable or value o the materials

=a+ )ait"

1. )ight to ac*uire the 5oses right to materials materials without paying without right to indemnity indemnity plus damages 2. )emove improvement plus damages" or 3. 'emand payment or improvement plus damages 4 the option is with the land owner 7i.e.! to buy the improvement or sell the land8, the land owner cannot re use to e$ercise that option. The court may compel the land owner to e$ercise such option.

4 the land owner opts to buy the improvements rom the builderHplanterHsower, the land owner must pay the value o the builderHplanterHsower. 9uilderHplanterHsower has the right o retention until the land owner pays. 4 the land owner chooses to buy the improvement, the builderHplanterHsower can sue to re*uire the land owner to pay him. The obligation has now been converted to a monetary obligation. There is no trans er o ownership o the improvements until the land owner pays the builderHplanterHsower. 4n .rti vs. Ka8anan the 7* said, 2$ll the #ruits that the builderJplanterJsower may receive rom the time that he is summoned, or when he answers the complaint, must be delivered or paid by him to the owner or law ul possessor. +uch is the time when his good aith has ceased. While the builderHplanterHsower retains the property until he is reimbursed or necessary and use ul e$penses, all the ruits the 9=+ receives rom the moment his good aith ceases must be de erred or paid by him to the land owner. The builderHplanterHsower may, however, secure the reimbursement o his e$penses by using the ruits to pay it o 7deduct the value o the ruits he receives rom the time his good aith ceases rom the reimbursement due him8. &ro#essor %alane doesnt agree with the ruling in .rti vs. Ka8anan. 4t seems inconsistent to say that the builderHplanterHsower retains ownership o the improvement until he is paid yet the ruits derived rom such improvement should go to the land owner. 4 the land owner chooses to sell the land to the builderHplanter, the builderHplanter will have to pay the value o the land based on the prevailing mar(et value at the time o payment. 4 the land owner chooses to sell the land and the builderHplanter is unable or unwilling to pay, the 5and owner has 3 options6 1. #ssume a lessor/lessee relationship" or 2. 5and owner can have the improvements removed and in the meantime demand rental" or 3. 5and owner can have the land and the improvements sold at a public auction" the proceeds o which shall be applied pre erentially to the value o the land.

The land owner cannot compel the sower to buy the land. 5and owner can either buy the improvement or demand rental. 4 the value o the land is considerably greater than the value o the improvement, then the land owner can only choose between buying the improvement or demanding rental rom the builderHplanterHsower. b. #atural 7#rticles ;0?/;108 i. Alluvion or accretion 7#rticle ;0?8 Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which the" graduall" receive from the effects of the current of the waters. #rticle ;0? applies only to lands ad&oining ban(s o rivers. 4t does not apply by analogy to lands ad&oining all bodies o

water. Fowever, #rticle @; o the 5aw o Waters applies the same principle to la(es, streams and cree(s. The owners o lands ad&oining the ban(s o rivers 7riparian land8 shall own the accretion which they gradually receive. #ccretion denotes the act or process by which a riparian land gradually and imperceptively receives addition made by the water to which the land is contiguous. #lluvion re ers to the deposit o soil. )ationale or this bene it6 to compensate the owners or the losses which they may su er by erosion due to the destructive orces o the water (?errer vs. -autista). )e*uisites o #ccretion 1. The accumulation o soil is gradual and imperceptible. 2. 4t is the result o the action o the water o the river. 3. 'eposits made by human intervention are e$cluded. ;. The land where the accretion ta(es place is ad&acent to the ban( o the river. #ccretion operates ipso #ure. Fowever, the additional area is not covered by a Torrens title since it is not described in the title. The riparian owner must register the additional area.

Art. 458. The owners of estates adjoining ponds or lagoons do not ac-uire the land left dr" b" the natural decrease of the waters% or lose that inundated b" them in e,traordinar" floods. #rticle ;0@ is does not tal( o accession. When a body o water dries up, the owner o the ad&oining estate does not own the dried up land. There is no alluvion since soil was not deposited in the ad&oining estate. +imilarly, i the land o the ad&oining owner should be looded, such land does not become part o the public dominion i the lood will subside.

ii. Avulsion Art. 459. /henever the current of a river% creek or torrent segregates from an estate on its bank a known portion of land and transfers it to another estate% the owner of the land to which the segregated portion belonged retains the ownership of it% provided that he removes the same within two "ears. #vulsion is the removal o a considerable *uantity o soil rom 1 estate and its anne$ation to another by the perceptible action o water. 4n alluvium, the accumulation o the soil is gradual. The soil belongs to the owner o the property where the soil attaches. The soil cannot be identi ied.

4n avulsion, the accumulation o soil is sudden and abrupt. The soil can be identi ied. The soil belongs to the owner o the property rom where the soil was ta(en. Fowever, the owner has to 2 years to get the soil. 4 he does not get the soil within 2 years, the owner o the property where the soil currently is shall own the soil. #vulsion is a case o delayed accession (<-L Re8es).

Art. 460. Trees uprooted and carried awa" b" the current of the waters belong to the owner of the land upon which the" ma" be cast% if the owners do not claim them within si, months. +f such owners claim them% the" shall pa" the e,penses incurred in gathering them or putting them in a safe place. ,.7E: 4n the case o uprooted trees there is no accession. The owner o the land rom which the trees came rom should claim the tree within 1 months. #ll that #rticle ;1. re*uires is claim and not removing. #lthough #rt. ;1. is silent, the owner o the tree should remove the trees within a reasonable time. 4 he does not claim within 1 months, the land owner where the tree is shall become the owner.

iii. ;$ange o" river course Art. 461. )iver beds which are abandoned through the natural change in the course of the waters ipso .acto belong to the owners whose lands are occupied b" the new course in proportion to the area lost. 7owever% the owners of the lands adjoining the old bed shall have the right to ac-uire the same b" pa"ing the value thereof% which value shall not e,ceed the value of the area occupied b" the new bed. Art. 462. /henever a river% changing its course b" natural causes% opens a new bed through a private estate% this bed shall become of public dominion. Art. 463. /henever the current of a river divides itself into branches% leaving a piece of land or part thereof isolated% the owner of the land retains his ownership. 7e also retains it if a portion of land is separated from the estate b" the current. )e*uisites 1. The change in the river course must be sudden 2. The change must be permanent 3. The change must natural

;. The river bed must be abandoned by the government #ccording to commentators, this re*uisite has been repealed by #rticle ;11. Fowever, the Water Code provides that the government can only return the river to the old bed i the government sees it. This is possible especially i there are already e$isting hydro/electric plants and irrigation pro&ects.
<

0. The river must continue to e$ist Fas #rticle ;11 been superseded by G0@ o the Water Code% G0@ provides that the government has the option to let the change o river course remain as is or to bring it bac(. 4t also provides that the owners o a ected lands 7those who lost land8 may underta(e to return the river to the old bed provided they get a permit rom the government. G0@ does not contain the 2 nd the 2 sentence repealed%
nd

sentence o #rticle ;11. 4s

#ccording to =ro essor 9alane, no it is not since they are not inconsistent. Thus, the ad&acent owners o the old bed can buy the old river bed. The old river bed according to #rticle ;11 and G 0@ shall be ac*uired by the people who lost their land in proportion to their land lost. This is air but it is complicated. First, how do you compute the proportions% +econd, what i the old river bed is ar away% The new river bed is a case o de "acto eminent domain. There is no accession under #rticle ;13. merely divides itsel into branches. The river

iv. ?ormation o" island Art. 464. +slands which ma" be formed on the seas within the jurisdiction of the Philippines% on lakes% and on navigable or floatable rivers belong to the >tate.

<

Article %/. When a river or stream suddenly changes its course to traverse private lands, the owners o the a ected lands may not compel the government to restore the river to its ormer be" nor can they restrain the government rom ta(ing steps to revert the river or stream to its ormer course. The owners o the lands thus a ected are not entitled to compensation or any damage sustained thereby. Fowever, the ormer owners o the new bed shall be the owners o the abandoned bed in proportion to the area lost by each. The owners o the a ected lands may underta(e to return the river or stream to its old bed at their own e$pense" Provided! That a permit there or is secured rom the +ecretary o =ublic Wor(s, Transportation and Communication and wor(s pertaining thereto are commenced within two years rom the change in the course o the river or stream.

Art. 465. +slands which through successive accumulation of alluvial deposits are formed in non. navigable and non.floatable rivers% belong to the owners of the margins or banks nearest to each of them% or to the owners of both margins if the island is in the middle of the river% in which case it shall be divided longitudinall" in halves. +f a single island thus formed be more distant from one margin than from the other% the owner of the nearer margin shall be the sole owner thereof. Under #rticle ;1;, there is no accession. #ll belong to the state islands which are ormed on =hilippine seas, on la(es and on navigable rivers. The +C however has not said what (ind o property such the islands were patrimonial or o the public dominion. Under #rticle ;10, i the island is ormed in a non/ navigable river, there is accession. 4 the island is ormed in a navigable river, then it belongs to the state. G0A o the Water Code de ines what is navigable.

2. :ovables

a. A+6unction or con6unction 7#rticles ;11/;?18 Art. 466. /henever two movable things belonging to different owners are% without bad faith% united in such a wa" that the" form a single object% the owner of the principal thing ac-uires the accessor"% indemnif"ing the former owner thereof for its value. Art. 467. The principal thing% as between two things incorporated% is deemed to be that to which the other has been united as an ornament% or for its use or perfection. Art. 468. +f it cannot be determined b" the rule given in the preceding article which of the two things incorporated is the principal one% the thing of the greater value shall be so considered% and as between two things of e-ual value% that of the greater volume. +n painting and sculpture% writings% printed matter% engraving and lithographs% the board% metal% stone% canvas% paper or parchment shall be deemed the accessor" thing. Art. 469. /henever the things united can be separated without injur"% their respective owners ma" demand their separation.

Article %2. )ivers, la(es and lagoons may, upon the recommendation o the =hilippine Coast 2uard, be declared navigable either in whole or in part.

1evertheless% in case the thing united for the use% embellishment or perfection of the other% is much more precious than the principal thing% the owner of the former ma" demand its separation% even though the thing to which it has been incorporated ma" suffer some injur". Art. 470. /henever the owner of the accessor" thing has made the incorporation in bad faith% he shall lose the thing incorporated and shall have the obligation to indemnif" the owner of the principal thing for the damages he ma" have suffered. +f the one who has acted in bad faith is the owner of the principal thing% the owner of the accessor" thing shall have a right to choose between the former pa"ing him its value or that the thing belonging to him be separated% even though for this purpose it be necessar" to destro" the principal thing2 and in both cases% furthermore% there shall be indemnit" for damages. +f either one of the owners has made the incorporation with the knowledge and without the objection of the other% their respective rights shall be determined as though both acted in good faith. Art. 471. /henever the owner of the material emplo"ed without his consent has a right to an indemnit"% he ma" demand that this consist in the deliver" of a thing e-ual in kind and value% and in all other respects% to that emplo"ed% or else in the price thereof% according to e,pert appraisal. There is ad&unction or con&unction when 2 movables are attached to each other such that separation is impossible without in&ury. For e$ample, the paint o 9 is used on the canvass o C. Fasic )ule* 4 separation is possible without in&ury, then should separate. 4 this is not possible, then ad&unction or con&unction. There are 2 parties here6 the owner o the principal ob&ect and the owner o the accessory. ; +ituations6 1. 9oth owner o the principal ob&ect and the owner o the accessory are in good aith The owner o the principal ob&ect ac*uires the thing but with the duty to indemni y the owner o the accessory. 7#rticle ;118. Fowever, the owner o the accessory has a right to demand separation even though there may be damage i the accessory is more valuable.

2. The owner o the principal ob&ect is in good aith and the owner o the accessory is in bad aith.

The owner o the accessory loses the thing plus is liable or damages 7#rticle ;?.8

3. The owner o the principal ob&ect is in bad aith and the owner o the accessory is in good aith. #- has 2 options6 a. 'emand value o the accessory plus damages" or b. 'emand separation even i the principal will be destroyed plus damages 7#rticle ;?., :28 ;. -wner o the principal ob&ect and the owner o the accessory both in bad aith Treat as i analogy8. both are in good aith 7#rticle ;03 by

)ules to 'etermine Which is the =rincipal and Which is the #ccessory a. =rimary rule importance or purpose For e$ample, the watch is the principal 7to tell time8 while the bracelet is the accessory 7to wear8.

b. +econdary rule / value c. Tertiary rule volume or mass d. Fourth rule merits, utility, value 7combination8 ,.7E: -ne normally does not go beyond the 2 Einds o #d&unction o Con&unction 1. ,ngra tment 2. #ttachment a. "erruminatio 5. plum5atura 3. Weaving ;. =ainting 0. Writing b. *o ixtion or *on.usion 7#rticles ;?2, ;338
nd

test.

Art. 472. +f b" the will of their owners two things of the same or different kinds are mi,ed% or if the mi,ture occurs b" chance% and in the latter case the things are not separable without injur"% each owner shall ac-uire a right proportional to the part belonging to him% bearing in mind the value of the things mi,ed or confused. Art. 473. +f b" the will of onl" one owner% but in good faith% two things of the same or different kinds are mi,ed or

confused% the rights of the owners shall be determined b" the provisions of the preceding article. +f the one who caused the mi,ture or confusion acted in bad faith% he shall lose the thing belonging to him thus mi,ed or confused% besides being obliged to pa" indemnit" for the damages caused to the owner of the other thing with which his own was mi,ed. Commi$tion re ers to the mi$ture o solids 7i.e. the mi$ture o rice o di erent varieties8. Con usion re ers to the mi$ture o li*uids 7i.e. mi$ture o di erent gasoline8 )ules6 1. 4 caused by the will o the parties or by chance or by the will o 1 party but is in good aith, then there will be a co/ ownership based on proportional value 7not volume8. 2. 4 caused by the will o 1 party in bad aith, then the party in bad aith loses the entire thing. +ome commentators say that commi$tion or con usion is not a true case o accession since there is no principal or accessory. #lso, there is a co/ownership. 4n accession, everything goes to 1 party.

c. 5peci.ication 7#rticle ;?;8 Art. 474. #ne who in good faith emplo"s the material of another in whole or in part in order to make a thing of a different kind% shall appropriate the thing thus transformed as his own% indemnif"ing the owner of the material for its value. +f the material is more precious than the transformed thing or is of more value% its owner ma"% at his option% appropriate the new thing to himself% after first pa"ing indemnit" for the value of the work% or demand indemnit" for the material. +f in the making of the thing bad faith intervened% the owner of the material shall have the right to appropriate the work to himself without pa"ing an"thing to the maker% or to demand of the latter that he indemnif" him for the value of the material and the damages he ma" have suffered. 7owever% the owner of the material cannot appropriate the work in case the value of the latter% for artistic or scientific reasons% is considerabl" more than that of the material. 7peci#ication is the giving o# a new #orm to another persons material through the application o labor. Fere there are 2 parties6 the material owner and the ma(er. ; +ituations 1. 9oth material owner and ma(er are in good aith

>a(er ac*uires the thing with the duty to indemni y the material owner 7#rticle ;?;, :18. Fowever, i the material is much more precious then the material owner has 2 options6 a. To appropriate the thing and pay the ma(er" or b. To sell the material to ma(er

2. >a(er is in bad aith and the material owner is in good aith >aterial owner has 2 options 7#rticle ;?.86 a. #ppropriate the thing without indemnity to ma(er plus damages" or This option is not available i the value o the wor( is considerably more than the material.

b. +ell the material to ma(er plus damages 3. >a(er is in good aith and the material owner is in bad aith >a(er appropriates without the duty to pay the material owner plus damages 7#rticle ;?. by analogy8. Treat both in good aith 7#rticle ;03 by analogy8.

;. >a(er and the material owner are both in bad aith ++. Co.#wnership Co/ownership is the right o common dominion which 2 or more persons have in a spiritual 7a.6.a. ideal or ali*uot8 part o a thing which is not physically divided. 4n co/ownership, there is only 1 ownership, but ii is shared ownership. ,ach co/owner owns a ractional or an ideal part o the ob&ect but they cannot point to a speci ic part o the ob&ect. Co/ownership is not encouraged since it is very unwieldy. 4t is very easy to have disagreements between co/owners. 1. 9y law 5aw may mandate co/ownership 7i.e.! party wall8 2. 9y contract 3. 9y chance ,$amples are commi$tion or con usion 4n Pun alan vs. -oon Liat! the +C said that the ishermen are co/owners o the whale they caught. Compulsory, testamentary, intestate ;. 9y occupation

#. +ources o Co/-wnership

0. 9y succession 9. Characteristics o Co/-wnership 1. >ore than 1 owner

2. 1 physical unit or whole divided into ideal or ractional shares 3. ,ach ractional share is de inite in amount but not physically segregated rom the rest ;. #s to the physical unit, each co/owner must respect the other co/owners in its common use, en&oyment and preservation 7#rticle ;@38 0. #s to the ali*uot share, each co/owner holds absolute control 7#rticle ;A38 1. !o &uridical personality o its own C. Co/-wnership 'istinguished rom =artnership C#.#/18)>7+P Co/ownership may arise rom other causes 7i.e.! will or law8 PA)T18)>7+P =artnerships are created agreement or contract only by

The purpose o co/ownership is or The purpose o partnership is pro it collective en&oyment and to maintain the unity and preservation o the thing owned in common 4n co/ownership, there is no &uridical personality distinct rom the members 4n partnership, there is a &uridical personality distinct rom the members

# stipulation that a co/ownership be # partnership may be created or a period created or a period o more than 1. years o more than 1. years is void 4n co/ownership, a special authority is 4n partnership, there is generally mutual needed or representation among co/ representation by the partners owners 4n a co/ownership there is reedom o disposition o a co/owners share 4n a partnership, a partner cannot trans er rd his rights to 3 persons without the consent o the others

'eath or incapacity o 1 o the co/owners The partnership can be e$tinguished by the have no e ect on the e$istence o a co/ death or incapacity o 1 o the partners ownership The distribution o pro its is invariable in co/ownership by virtue o #rticle ;@0 The distribution o pro its is sub&ect to stipulation in partnerships

Art. 485. The share of the co.owners% in the benefits as well as in the charges% shall be proportional to their respective interests. An" stipulation in a contract to the contrar" shall be void. The portions belonging to the co.owners in the co.ownership shall be presumed e-ual% unless the contrar" is proved. # co/owners share in the ruits and e$penses is always dependent on the co/ owners interest. #ny agreement to the contrary is void. # ma(es a will. # gives arm to Iason, Io&i and )on in e*ual shares. Fowever, the will states that the sharing in ruits and e$penses in not e*ual. Iason gets @.J, Io&i gets 10J, and )on 0J. 4s this valid% This is a debatable point according to =ro essor 9alane. +ome commentators say it is valid since #rt. ;@0 re ers to contractual agreements. +ome commentators argue that it is not valid.

#lthough #rt. ;@0 re ers to contractual agreements, it should e$tend to other sources o co/ownership since #rt. ;@0 is an e$pression o public policy. Art. 486. 8ach co.owner ma" use the thing owned in common% provided he does so in accordance with the purpose for which it is intended and in such a wa" as not to injure the interest of the co.ownership or prevent the other co.owners from using it according to their rights. The purpose of the co.ownership ma" be changed b" agreement% e,press or implied. Co/owners must respect the rights o the other co/owners. 4n Pardell vs. -artolome! 2 sisters owned a 2 story building. The irst loor was by rented out. The second loor was being occupied by 1 sister. The other sister was in +pain. The +C said that the sister occupying the second loor need not pay rent. The act that she used the whole second loor is irrelevant. +he did not pre&udice the rights o her sister in +pain precisely because she was in +pain. 9ut with respect to the irst loor which was occupied by the husband o one o the sisters, the husband should pay his sister /in/law S o the rent or such portion. -therwise, his sister/in/law would be pre&udiced. #s a co/owner, one can use all o the physical unit. For e$ample, a co/owner uses the entire car, not &ust a portion o the car. # co/owner does not have to pay rent or the use o the thing co/owned. Art. 487. An" one of the co.owners ma" bring an action in ejectment. #ny one o the co/owners may bring an action in e&ectment. #, 9, C, ', and , are co/owners o a lot which is being s*uatted. # iles an e&ectment suit. # wins. #ll the other co/owners bene it. 'o the other co/owners share in the e4pense! Fes, one can argue that its a necessary e4pense . #, 9, C, ', and , are co/owners o a lot which is being s*uatted. # iles an e&ectment suit. # loses. >ay the other sue or e&ectment% !o, it is barred by prior &udgment. #,9, and C bought a boo( on credit. They are co/owners o a boo(. 4n an action by the creditor against the co/owners, the creditor must sue all. #rticle ;@? contemplates a situation when it is the co/owner who iles the suit not when they are the de endants. #rticle ;@? is a case where 1 co/owner can bind the other. The other instance is #rticle ;@A.

Art. 488. 8ach co.owner shall have a right to compel the other co. owners to contribute to the e,penses of preservation of the thing or right owned in common and to the ta,es. An" one of the latter ma" e,empt himself from this obligation b" renouncing so much of his undivided interest as ma" be e-uivalent to his share of the e,penses and ta,es. 1o such waiver shall be made if it is prejudicial to the co.ownership. ,$penses or the preservation o the thing owned in common as well as ta$es must be shouldered by every co/owner in proportion to their interest. # co/owner has 2 options6

1. =ay or the necessary e$penses or ta$es 2. Can or eit so much o his share which is e*uivalent to his interest to the co/ owner who paid or the necessary e$penses or ta$es The co/owner who made the advance has a right o reimbursement. The advancing co/owner only has the right to re*uire payment. Fe may not demand the share o the co/owner.

Art. 489. )epairs for preservation ma" be made at the will of one of the co.owners% but he must% if practicable% first notif" his co.owners of the necessit" for such repairs. 8,penses to improve or embellish the thing shall be decided upon b" a majorit" as determined in article ;C4. )epairs or preservation may be made at the will o 1 o the co/owners. #s much as possible, notice should be given to the other co/owners. The lac( o notice only gives rise to the presumption that the repairs were not necessary. Fowever, this can be proven otherwise. #rticle ;@A is a case where 1 co/owner can bind the other. The other instance is #rticle ;@?. Use ul or ornamental e$penses need a ma&ority. >a&ority is computed not by counting heads but by ma&ority o the controlling interest in the co/ownership.

Art. 490. /henever the different stories of a house belong to different owners% if the titles of ownership do not specif" the terms under which the" should contribute to the necessar" e,penses and there e,ists no agreement on the subject% the following rules shall be observed* 3'5 The main and part" walls% the roof and the other things used in common% shall be preserved at the e,pense of all the owners in proportion to the value of the stor" belonging to each2

345 8ach owner shall bear the cost of maintaining the floor of his stor"2 the floor of the entrance% front door% common "ard and sanitar" works common to all% shall be maintained at the e,pense of all the owners pro rata2 365 The stairs from the entrance to the first stor" shall be maintained at the e,pense of all the owners pro rata% with the e,ception of the owner of the ground floor2 the stairs from the first to the second stor" shall be preserved at the e,pense of all% e,cept the owner of the ground floor and the owner of the first stor"2 and so on successivel". This hardly e$ists anymore. Condominium 5aw 7)# ;?21 as amended by ).#. !o. ?@AA8 >ost condominiums are corporations. 4 the condominium is a co/ownership, then the provisions o the Civil Code are relevant. 4mportant +ections 1. G2 / 'e inition

Sec% 2% A C-*+-/)*)1/ )" * )*%e(e"% )* (e $ 0(-0e(%, c-*")"%)*. -' "e0 ( %e )*%e(e"%" )* 1*)% )* (e")+e*%) $4 )*+1"%() $ -( c-//e(c) $ 21)$+)*. -( )* * )*+1"%() $ e"% %e *+ * 1*+)5)+e+ )*%e(e"%" )* c-//-*4 +)(ec%$, *+ )*+)(ec%$,4 )* %#e $ *+4 -( %#e 001(%e* *% )*%e(e"% -' %#e)( (e"0ec%)5e 1*)%" )* %#e c-//-* (e ". T#e (e $ ().#% )* c-*+-/)*)1/ / , 2e -!*e("#)0 -( *, )*%e(e"% )* (e $ 0(-0e(%, (ec-.*)3e+ 2, $ ! -* 0(-0e(%, )* %#e C)5)$ C-+e *+ -%#e( 0e(%)*e*% $ !". 2. G; ,nabling or master deed 7contents and necessary re*uirements8 7amended8 Sec% D% T#e 0(-5)")-*" -' %#)" Ac% "# $$ 00$, %- 0(-0e(%, +)5)+e+ -( %2e +)5)+e+ )*%- c-*+-/)*)1/ -*$, )' %#e(e "# $$ 2e (ec-(+e+ )* %#e Re.)"%e( -' Dee+" -' %#e 0(-5)*ce -( c)%, )* !#)c# %#e 0(-0e(%, $)e"4 *+ +1$, **-% %e+ )* %#e c-((e"0-*+)*. ce(%)')c %e -' %)%$e -' %#e $ *+4 )' %#e $ %%e( # + 2ee* 0 %e*%e+ -( (e.)"%e(e+ 1*+e( e)%#e( %#e L *+ Re.)"%( %)-* -( C + "%( $ Ac%"4 * e* 2$)*. -( / "%e( +ee+ !#)c# "# $$ c-*% )*4 /-*. -%#e("4 %#e '-$$-!)*.@ C De"c()0%)-* -' %#e $ *+ -* !#)c# %#e 21)$+)*. -( 21)$+)*." )/0(-5e/e*%" (e %- 2e $-c %e+> *+

2C De"c()0%)-* -' %#e 21)$+)*. -( 21)$+)*."4 "% %)*. %#e *1/2e( -' "%-()e" *+ 2 "e/e*%4 %#e *1/2e( -' 1*)%" *+ %#e)( cce""-()e"4 )' *,> cC De"c()0%)-* -' %#e c-//-* (e " *+ ' c)$)%)e"> +C A "% %e/e*% -' %#e e; c% * %1(e -' %#e )*%e(e"% cI1)(e+ -( %- 2e cI1)(e+ 2, %#e 01(c# "e+ )* %#e "e0 ( %e 1*)%" *+ %#e c-//-* (e " -' %#e c-*+-/)*)1/ 0(-Bec%". W#e(e %)%$e %- -( %- 001(%e* *% )*%e(e"%" )* %#e c-//-* (e " )" %- 2e #e$+ 2, c-*+-/)*)1/ c-(0-( %)-*4 "% %e/e*% %- %#)" e''ec% "# $$ 2e )*c$1+e+> eC S% %e/e*% -' %#e 01(0-"e" '-( !#)c# %#e 21)$+)*. -( 21)$+)*." *+ e c# -' %#e 1*)%" (e )*%e*+e+ -( (e"%()c%e+ " %- 1"e> 'C A ce(%)')c %e -' %#e (e.)"%e(e+ -!*e( -' %#e 0(-0e(%,4 )' #e )" -%#e( %# * %#-"e e;ec1%)*. %#e / "%e( +ee+4 " !e$$ " -' $$ (e.)"%e(e+ #-$+e(" -' *, $)e* -( e*c1/2( *ce" -* %#e 0(-0e(%,4 %# % %#e, c-*"e*% %- %#e (e.)"%( %)-* -' %#e +ee+> 00e*+e+ %- %#e +ee+ " )*%e.( $ 0 (%"

.C T#e '-$$-!)*. 0$ *" "# $$ 2e %#e(e-'@

1. A "1(5e, 0$ * -' %#e $ *+ )*c$1+e+ )* %#e 0(-Bec%4 1*$e"" "1(5e, 0$ * -' %#e " /e 0(-0e(%, # + 0(e5)-1"$, 2ee* ')$e+ )* " )+ -'')ce. 2. A +) .( // %)c '$--( 0$ * -' %#e 21)$+)*. -( 21)$+)*." e c# 1*)%4 )%" (e$ %)5e $-c %)-* *+ 00(-;)/ %e +)/e*")-*". #C A*, (e "-* 2$e (e"%()c%)-* *-% c-*%( (, %- $ !4 /-( $"4 -( 012$)c 0-$)c, (e. (+)*. %#e ().#% -' *, c-*+-/)*)1/ -!*e( %- $)e* %e -( +)"0-"e -'' #)" c-*+-/)*)1/. T#e e* 2$)*. -( / "%e( +ee+ / , 2e /e*+e+ -( (e5-&e+ 10-* (e.)"%( %)-* -' * )*"%(1/e*% e;ec1%e+ 2, ")/0$e / B-()%, -' %#e (e.)"%e(e+ -!*e(" -' %#e 0(-0e(%,@ <rovided, T# % )* c-*+-/)*)1/ 0(-Bec% e;c$1")5e$, '-( e)%#e( (e")+e*%) $ -( c-//e(c) $ 1"e4 ")/0$e / B-()%, "# $$ 2e -* 0e( 1*)% -' -!*e("#)0 2 ")" *+ %# % )* %#e c "e -' /);e+ 1"e4 ")/0$e / B-()%, "# $$ 2e -* '$--( (e -' -!*e("#)0 2 ")"@ <rovided, f rther, T# % 0()-( *-%)')c %)-*" %- $$ (e.)"%e(e+ -!*e(" (e +-*e@ *+ <rovided, finally, T# % *, /e*+/e*% -( (e5-c %)-* $(e +, +ec)+e+ 2, ")/0$e / B-()%, -' $$ (e.)"%e(e+ -!*e(" "# $$

2e "12/)%%e+ c)%,J/1*)c)0 $ (e.)"%( %)-* -' "1c# 0(-0e(%,.

%- %#e H-1")*. *+ L *+ U"e Re.1$ %-(, B- (+ *+ %#e e*.)*ee( '-( 00(-5 $ 2e'-(e )% c * 2e (e.)"%e(e+. U*%)$ (e5-c %)-*4 %#e 0(-5)")-*" -' %#)" Ac% "# $$ c-*%)*1e %- 00$, %+As amended !y R%A% ,o% E3//4 o ownership includes 7includes citi3enship

3. G0 What trans er re*uirements8

Sec% 1% A*, %( *"'e( -( c-*5e, *ce -' 1*)% -( * 0 (%/e*%4 -'')ce -( "%-(e -( -%#e( "0 ce %#e(e)*4 "# $$ )*c$1+e %#e %( *"'e( -( c-*5e, *ce -' %#e 1*+)5)+e+ )*%e(e"% )* %#e c-//-* (e " -( )* 0(-0e( c "e4 %#e /e/2e("#)0 -( "# (e #-$+)*." )* %#e c-*+-/)*)1/ c-(0-( %)-*@ <rovided, however, T# % !#e(e %#e c-//-* (e " )* %#e c-*+-/)*)1/ 0(-Bec% (e #e$+ 2, %#e -!*e(" -' "e0 ( %e 1*)%" " c-<-!*e(" #e(e-'4 *- c-*+-/)*)1/ 1*)% %#e(e)* "# $$ 2e c-*5e,e+ -( %( *"'e((e+ %- 0e("-*" -%#e( %# * F)$)0)*- c)%)3e*" -( c-(0-( %)-* % $e "% 80L -' %#e c 0)% $ "%-c& -' !#)c# 2e$-*. %- F)$)0)*- c)%)3e*"4 e;ce0% )* c "e" -' #e(e+)% (, "1cce"")-*. W#e(e %#e c-//-* (e " )* c-*+-/)*)1/ 0(-Bec% (e #e$+ 2, c-(0-( %)-*4 *- %( *"'e( -( c-*5e, *ce -' 1*)% "# $$ 2e 5 $)+ )' %#e c-*c-/)% *% %( *"'e( -' %#e 001(%e* *% /e/2e("#)0 -( "%-c&#-$+)*. )* %#e c-(0-( %)-* !)$$ c 1"e %#e $)e* )*%e(e"% )* "1c# c-(0-( %)-* %- e;cee+ %#e $)/)%" )/0-"e+ 2, e;)"%)*. $ !". ;. G1 4ncidents o condominium grant Sec% -% U*$e"" -%#e(!)"e e;0(e""$, 0(-5)+e+ )* %#e e* 2$)*. -( / "%e( +ee+ -( %#e +ec$ ( %)-* -' (e"%()c%)-*"4 %#e )*c)+e*%" -' c-*+-/)*)1/ .( *% (e " '-$$-!"@ C T#e 2-1*+ (, -' %#e 1*)% .( *%e+ (e %#e )*%e()-( "1(' ce" -' %#e 0e()/e%e( ! $$"4 '$--("4 ce)$)*.4 !)*+-!" *+ +--(" %#e(e-'@ <rovided, %# % )* %#e c "e -' * )*+1"%() $ e"% %e c-*+-/)*)1/ 0(-Bec%"4 !#e(e)* !#-$e 21)$+)*."4 0$ *%" -( ' c%-()e" / , 2e c-*")+e(e+ " 1*)% +e')*e+ 1*+e( "ec%)-* 6 A2C #e(e-'4 %#e 2-1*+ (, -' 1*)% "# $$ )*c$1+e %#e -1%e( "1(' ce" -' %#e 0e()/e%e( ! $$" -' " )+ 21)$+)*."4 0$ *%" -( ' c%-()e". T#e '-$$-!)*. (e *-% 0 (% -' %#e 1*)%@ 2e ()*. ! $$"4 c-$1/*"4 '$--("4 (--'"4 '-1*+ %)-*"4 *+ -%#e( c-//-* "%(1c%1( $ e$e/e*%" -' %#e 21)$+)*."> $-22)e"4 "% )(! ,"4 # $$ ! ," *+ -%#e( (e " -' c-//-* 1"e4 e$e5 %-( eI1)0/e*% *+ "# '%"4 ce*%( $ #e %)*.4 ce*%( $ (e'().e( %)-* *+ ce*%( $ )( c-*+)%)-*)*. eI1)0/e*%4 (e"e(5-)(4 % *&"4 01/0" *+ -%#e( ce*%( $ "e(5)ce" *+ ' c)$)%)e"4 0)0e"4 +1c%"4 '$1e"4 c#1%e"4 c-*+1)%" !)(e" *+ -%#e( 1%)$)%, )*"% $$ %)-*"4 !#e(e5e( $-c %e+4 e;ce0% %#e -1%$e%" %#e(e-' !#e* $-c %e+ !)%#)* %#e 1*)%. 2C T#e(e "# $$ 0 "" !)%# %#e 1*)%4 " * c "e/e*% '-( %#e 1"e -' %#e )( "0 ce -' %#e 1*)% " )% e;)"%" % *, 0 (%)c1$ ( 2e $%e(e+ -( (ec-*"%(1c%e+ '(-/ %)/e 1%-/ %)c $$, %e(/)* %e+ )* *, )( "0 " %- (e*+e( )% 1*%e* *% 2$e. 001(%e* *% %#e(e-'4 * e;c$1")5e e*c-/0 ""e" 2, %#e 2-1*+ ()e" %)/e *+ " %#e 1*)% / , $ !'1$$, %- %)/e. S1c# e "e/e*% "# $$ 2e ce 10-* +e"%(1c%)-* -' %#e 1*)%"

cC U*$e"" -%#e(!)"e 0(-5)+e+4 %#e c-//-* (e " (e #e$+ )* c-//-* 2, %#e #-$+e(" -' 1*)%"4 )* eI1 $ "# (e -*e '-( e c# 1*)%. +C A *-*<e;c$1")5e e "e/e*% '-( )*.(e""4 e.(e"" *+ "100-(% %#(-1.# %#e c-//-* (e " )* 001(%e* *% %- e c# 1*)% *+ %#e c-//-* (e " (e "12Bec% %- "1c# e "e/e*%.

eC E c# c-*+-/)*)1/ -!*e( "# $$ # 5e %#e e;c$1")5e ().#% %- 0 )*%4 (e0 )*%4 %)$e4 ! ;4 0 0e( -( -%#e(!)"e (e')*)"# *+ +ec-( %e %#e )**e( "1(' ce" -' %#e ! $$"4 ce)$)*."4 '$--("4 !)*+-!" *+ +--(" #-1*+)*. #)" -!* 1*)%@ 0(-5)+e+4 %# % )* %#e c "e -' * )*+1"%() $ e"% %e c-*+-/)*)1/ 1*)%4 "1c# ().#% / , 2e e;e(c)"e+ -5e( %#e e;%e(* $ "1(' ce" -' %#e " )+ 1*)%. 'C E c# c-*+-/)*)1/ -!*e( "# $$ # 5e %#e e;c$1")5e ().#% %- /-(%. .e4 0$e+.e -( e*c1/2e( #)" c-*+-/)*)1/ *+ %- # 5e %#e " /e 00( )"e+ )*+e0e*+e*%$, -' %#e -%#e( c-*+-/)*)1/ -!*e(.

.C E c# c-*+-/)*)1/ -!*e( # " $"- %#e 2"-$1%e ().#% %- "e$$ -( +)"0-"e -' #)" c-*+-/)*)1/ 1*$e"" %#e / "%e( +ee+ c-*% )*" (eI1)(e/e*%" %# % %#e 0(-0e(%, 2e ')("% -''e(e+ %- %#e c-*+-/)*)1/ -!*e(" !)%#)* (e "-* 2$e 0e()-+ -' %)/e 2e'-(e %#e " /e )" -''e(e+ %- -1%")+e 0 (%)e"> 0. G@ When partition is allowed Sec% 3% W#e(e "e5e( $ 0e("-*" -!* c-*+-/)*)1/ )* c-*+-/)*)1/ 0(-Bec%4 * c%)-* / , 2e 2(-1.#% 2, -*e -( /-(e "1c# 0e("-* '-( 0 (%)%)-* %#e(e-'4 2, " $e -' %#e e*%)(e 0(-Bec%4 " )' %#e -!*e(" -' $$ %#e c-*+-/)*)1/ )* "1c# 0(-Bec% !e(e c-<-!*e(" -' %#e e*%)(e 0(-Bec% )* %#e " /e 0(-0-(%)-* " %#e)( )*%e(e"%" )* %#e c-//-* (e "@ <rovided, however4 %# % 0 (%)%)-* "# $$ 2e / +e -*$, 10-* "#-!)*.@ C T# % %#(ee ,e (" '%e( + / .e -( +e"%(1c%)-* %- %#e 0(-Bec% !#)c# (e*+e(" / %e() $ 0 (% %#e(e-' 1*')% '-( )%" 1"e 0()-( %#e(e%-4 %#e 0(-Bec% # + *-% 2ee* (e21)$% -( (e0 )(e+ "12"% *%) $$, %- )%" "% %e 0()-( %- )%" + / .e -( +e"%(1c%)-*> -( 2C T# % + / .e -( +e"%(1c%)-* %- %#e 0(-Bec% # " (e*+e(e+ -*e # $' -( /-(e -' %#e 1*)%" %#e(e)* 1*%e* *% 2$e *+ %# % c-*+-/)*)1/ -!*e(" #-$+)*. )* ..(e. %e /-(e %# * 60 0e(ce*% )*%e(e"% )* %#e c-//-* (e " (e -00-"e+ %- %#e (e0 )( -( (e"%-( %)-* -' %#e 0(-Bec%"> -( cC T# % 0(-Bec% # " 2ee* )* e;)"%e*ce )* e;ce"" -' E0 ,e ("4 %# % )% )" -2"-$e%e *+ 1*ec-*-/)c $4 *+ %# % c-*+-/)*)1/ -!*e(" #-$+)*. )* ..(e. %e /-(e %# * E0 0e(ce*% )*%e(e"% )* %#e c-//-* (e " (e -00-"e+ %- (e0 )( -( (e"%-( %)-* -( (e/-+e$)*. -( /-+e(*)3)*. -' %#e 0(-Bec%> -( +C T# % %#e 0(-Bec% -( / %e() $ 0 (% %#e(e-' # " 2ee* c-*+e/*e+ -( e;0(-0() %e+ *+ %# % %#e 0(-Bec% )" *- $-*.e( 5) 2$e4 -( %# % %#e c-*+-/)*)1/ -!*e(" #-$+)*. )* ..(e. %e /-(e %# * G0 0e(ce*% )*%e(e"% )* %#e c-//-* (e " (e -00-"e+ %- %#e c-*%)*1 %)-* -' %#e c-*+-/)*)1/ (e.)/e '%e( e;0(-0() %)-* -( c-*+e/* %)-* -' / %e() $ 0(-0-(%)-* %#e(e-'> -( eC T# % %#e c-*+)%)-* '-( "1c# 0 (%)%)-* 2, " $e "e% '-(%# )* %#e +ec$ ( %)-* -' (e"%()c%)-*" +1$, (e.)"%e(e+ )* cc-(+ *ce !)%# %#e %e(/" -' %#)" Ac%4 # 5e 2ee* /e%. 1. GA 'eclaration o restrictions Sec% /% T#e -!*e( -' 0(-Bec% "# $$4 0()-( %- %#e c-*5e, *ce -' *, c-*+-/)*)1/ %#e(e)*4 (e.)"%e( +ec$ ( %)-* -( (e"%()c%)-*"4 (e$ %)*. %- "1c# 0(-Bec%4 !#)c# (e"%()c%)-*" "# $$ e*"1(e %- 2)*+ $$ c-*+-/)*)1/ -!*e(" )* %#e 0(-Bec%4 "1c# $)e*"4 1*$e"" -%#e(!)"e 0(-5)+e+4 / , 2e e*'-(ce+ 2, *, c-*+-/)*)1/ -!*e( )* %#e 0(-Bec% -( 2, %#e / * .e/e*% 2-+, -' "1c# 0(-Bec%.

T#e Re.)"%e( -' Dee+" "# $$ e*%e( *+ **-% %e %#e +ec$ ( %)-* -' (e"%()c%)-*"4 10-* %#e Ce(%)')c %e -' T)%$e c-5e()*. %#e $ *+ )*c$1+e+ !)%#)* %#e 0(-0e(4 )' %#e $ *+ )" 0 %e*%e+ -( (e.)"%e(e+ 1*+e( %#e L *+ Re.)"%( %)-* -( C + "%( $ Ac%". S1c# +ec$ ( %)-* -' (e"%()c%)-*"4 0(-5)+e@ C A" %- / * .e/e*% 2-+, 1. 2. F-( %#e 0-!e( %#e(e-'4 )*c$1+)*. 0-!e( %- e*'-(ce %#e 0(-5)")-*" -' %#e +ec$ ( %)-*" -' (e"%()c%)-*"> F-( %#e / )*%e* *ce -' )*"1( *ce 0-$)c)e" )*"1()*. c-*+-/)*)1/ -!*e(" . )*"% $-"" 2, %#e4 c "1 $%,4 $) 2)$)%,4 !-(&/e*K" c-/0e*" %)-* *+ -%#e( )*"1( 2$e ()"&" *+ '-( 2-*+)*. -' %#e /e/2e(" -' *, / * .e/e*% 2-+,> P(-5)")-*" '-( / )*%e* *ce4 1%)$)%,4 . (+e*)*. *+ -%#e( "e(5)ce" 2e*e')%)*. %#e c-//-* (e " '-( %#e -0e( %)-*" -' %#e 21)$+)*.4 *+ $e. $4 cc-1*%)*. *+ -%#e( 0(-'e"")-* $ *+ %ec#*)c $ "e(5)ce"> F-( 01(c# "e -' / %e() $"4 "100$)e" c-//-* (e "> *+ %#e $)&e *ee+e+ 2, %#e /-*. %#e -%#e( %#)*."4 / , $"-

6.

D. E.

F-( 0 ,/e*% -' % ;e" *+ "0ec) $ ""e""/e*% !#)c# !-1$+ 2e $)e* 10-* %#e e*%)(e 0(-Bec% -( c-//-* (e "4 '-( +)"c# (.e -' /, e*c1/2( *ce $e5)e+ . )*"% %#e e*%)(e 0(-Bec% -' %#e c-//-* (e "> F-( (ec-*"%(1c%)-* -' *, 0-(%)-* -( 0-(%)-*" -' *, + / .e %- -( +e"%(1c%)-* -' %#e 0(-Bec%> F-( e*%(, 2, )%" -'')ce(" *+ .e*%" )*%- *, 1*)% !#e* *ece"" (, )* c-**ec%)-* !)%# %#e / )*%e* *ce -( c-*"%(1c%)-* '-( !#)c# "1c# 2-+, )" (e"0-*")2$e> F-( 0-!e( -' %%-(*e, %- %#e / * .e/e*% 2-+, %- "e$$ %#e e*%)(e 0(-Bec% '-( %#e 2e*e')% -' $$ -' %#e -!*e(" %#e(e-' !#e* 0 (%)%)-* -' %#e 0(-Bec% / , 2e 1%#-()3e+ 1*+e( Sec%)-* 7 -' %#)" Ac%4 !#)c# " )+ 0-!e( "# $$ 2e 2)*+)*. 10-* $$ -' %#e c-*+-/)*)1/ -!*e(" (e. (+$e"" -( !#e%#e( %#e, ""1/e %#e -2$). %)-*" -' %#e (e"%()c%)-*" -( *-%. /e*+)*. "1c# (e"%()c%)-*"4 0(-5)+e+4 / B-()%, )* )*%e(e"% -' %#e -!*e(" )"

8. T#e / **e( '-( +e$e. %)-* -' )%" 0-!e("> G. 7.

H.

2C T#e / **e( *+ 0(-ce+1(e '-( %# % %#e 5-%e -' *-% $e"" %# * -2% )*e+>

cC F-( )*+e0e*+e*% 1+)% -' %#e cc-1*%" -' %#e / * .e/e*% 2-+,> +C F-( (e "-* 2$e ""e""/e*%" %- /ee% 1%#-()3e+ e;0e*+)%1(e"4 e c# c-*+-/)*)1/ 1*)% %- 2e ""e""e+ "e0 ( %e$, '-( )%" "# (e -' "1c# e;0e*"e" )* 0(-0-(%)-* A1*$e"" -%#e(!)"e 0(-5)+e+C %- )%" -!*e(K" '( c%)-* $ )*%e(e"% )* *, c-//-* (e "> eC 'C F-( %#e "12-(+)* %)-* -' %#e $)e*" "ec1()*. "1c# ""e""/e*%" %- -%#e( $)e* e)%#e( .e*e( $$, -( "0ec)')c $$, +e"c()2e+> F-( c-*+)%)-*"4 -%#e( %# * %#-"e 0(-5)+e+ '-( )* Sec%)-*" 7 *+ 16 -' %#)" Ac%4 10-* !#)c# 0 (%)%)-* -' %#e 0(-Bec% *+ +)""-$1%)-* -' %#e c-*+-/)*)1/ c-(0-( %)-* / , 2e / +e. S1c# ().#% %- 0 (%)%)-* -( +)""-$1%)-* / , 2e c-*+)%)-*e+ 10-* ' )$1(e -' %#e c-*+-/)*)1/ -!*e(" %- (e21)$+ !)%#)* ce(% )* 0e()-+ -( 10-* "0ec)')e+ 0e(ce*% .e -' + / .e %- %#e 21)$+)*.4 -( 10-* +ec)")-* -' * (2)%( %)-*4 -( 10-* *, -%#e( (e "-* 2$e c-*+)%)-*.

?. G1. Condominium corporation Sec% 0F% W#e*e5e( %#e c-//-* (e " )* c-*+-/)*)1/ 0(-Bec% (e #e$+ 2, c-*+-/)*)1/ c-(0-( %)-*4 "1c# c-(0-( %)-* "# $$ c-*"%)%1%e %#e / * .e/e*% 2-+, -' %#e 0(-Bec%. T#e c-(0-( %e 01(0-"e" -' "1c# c-(0-( %)-* "# $$ 2e $)/)%e+ %- %#e #-$+)*. -' %#e c-//-* (e "> e)%#e( %#e -!*e("#)0 -' *, -%#e( )*%e(e"% )* (e $ 0(-0e(%, (ec-.*)3e+ 2, %#e $ !4 %- %#e / * .e/e*% -' %#e 0(-Bec%4 *+ %- "1c# -%#e( 01(0-"e" " / ,2e *ece"" (,4 )*c)+e*% $ -( c-*5e*)e*% %- %#e cc-/0$)"#/e*% -' " )+ 01(0-"e". T#e (%)c$e" -' )*c-(0-( %)-* -( 2, $ !" -' %#e c-(0-( %)-* "# $$ *-% c-*% )* *, 0(-5)")-* c-*%( (, %- -( )*c-*")"%e*% !)%# %#e 0(-5)")-* -' %#)" Ac%4 %#e e* 2$)*. -( / "%e( +ee+4 -( %#e +ec$ ( %)-* -' (e"%()c%)-*" -' %#e 0(-Bec%4 /e/2e("#)0 )* c-*+-/)*)1/ c-(0-( %)-* (e. (+)*. -' !#e%#e( )% )" "%-c& -( *-*<"%-c& c-(0-( %)-*4 "# $$ *-% 2e %( *"'e( 2$e "e0 ( %e$, '(-/ %#e c-*+-/)*)1/ 1*)% -' !#)c# )% )" * 001(%e* *ce. W#e* /e/2e( -( "%-c&#-$+e( ce "e" %- -!* 1*)% )* %#e 0(-Bec% )* !#)c# %#e c-*+-/)*)1/ c-(0-( %)-* -!*" -( #-$+" %#e c-//-* (e 4 #e "# $$ 1%-/ %)c $$, ce "e %- 2e /e/2e( -( "%-c&#-$+e( -' %#e c-*+-/)*)1/ c-(0-( %)-*. @. G13 Iudicial dissolution o condominium corporation Sec. 16. U*%)$ %#e e* 2$)*. -( %#e / "%e( +ee+ -' %#e 0(-Bec% )* !#)c# %#e c-*+-/)*)1/ c-(0-( %)-* -!*" -( #-$+" %#e c-//-* (e " )" (e5-&e+ %#e c-(0-( %)-* "# $$ *-% 2e 5-$1*% ()$, +)""-$5e+ %#(-1.# * c%)-* '-( +)""-$1%)-* 1*+e( R1$e 10D -' %#e R1$e" -' C-1(% e;ce0% 10-* "#-!)*.@ C T#e %#(ee ,e (" '%e( + / .e -( +e"%(1c%)-* %- %#e 0(-Bec% )* !#)c# + / .e -( +e"%(1c%)-* (e*+e(" / %e() $" 0 (% %#e(e-' 1*')% '-( )%" 1"e 0()-( %#e(e%-4 %#e 0(-Bec% # " *-% 2ee* (e21)$% -( (e0 )(e+ "12"% *%) $$, %)%" "% %e 0()-( %- )%" + / .e -( +e"%(1c%)-*> -(

2C T#e + / .e -( +e"%(1c%)-* %- %#e 0(-Bec% # " (e*+e(e+ -*e # $' -( /-(e -' %#e 1*)%" %#e(e)* 1*%e* *% 2$e *+ %# % /-(e %# * 60 0e(ce*% -' %#e /e/2e( -' %#e c-(0-( %)-* e*%)%$e+ %- 5-%e4 )' "%-c& c-(0-( %)-*4 (e -00-"e+ %- %#e (e0 )( -( (ec-*"%(1c%)-* -' %#e 0(-Bec%> -( cC T# % %#e 0(-Bec% # " 2ee* )* e;)"%e*ce e;ce"" -' E0 ,e ("4 %# % )% )" -2"-$e%e *+ 1*ec-*-/)c $ *+ %# % /-(e %# * E0 0e(ce*% -' %#e /e/2e(" -' %#e c-(0-( %)-* )' *-*<"%-c& -( "%-c&#-$+e(" (e0(e"e*%)*. /-(e %# * E0 0e(ce*% -' %#e c 0)% $ "%-c& e*%)%$e+ %- 5-%e4 )' "%-c& c-(0-( %)-*4 (e -00-"e+ %- %#e (e0 )( -( (e"%-( %)-* -( (e/-+e$)*. -( /-+e(*)3)*. -' %#e 0(-Bec%> -(

+C T# % 0(-Bec% -( / %e() $ 0 (% %#e(e-' # " 2ee* c-*+e/*e+ -( e;0(-0() %e+ *+ %# % %#e 0(-Bec% )" *- $-*.e( 5) 2$e -( %# % %#e /e/2e(" #-$+)*. )* ..(e. %e /-(e %# * G0 0e(ce*% )*%e(e"% )* %#e c-(0-( %)-* )' *-*<"%-c&4 -( %#e "%-c&#-$+e(" (e0(e"e*%)*. /-(e %# * G0 0e(ce*% -' %#e c 0)% $ "%-c& e*%)%$e+ %- 5-%e4 )' "%-c& c-(0-( %)-*4 (e -00-"e+ %- %#e c-*%)*1 %)-* -' %#e c-*+-/)*)1/ (e.)/e '%e( e;0(-0() %)-* -( c-*+e/* %)-* -' / %e() $ 0-(%)-* %#e(e-'> -( eC T# % %#e c-*+)%)-*" '-( "1c# +)""-$1%)-* "e% '-(%# )* %#e +ec$ ( %)-* -' (e"%()c%)-*" -' %#e 0(-Bec% )* !#)c# %#e c-(0-( %)-* -!*" -( #-$+" %#e c-//-* (e "4 # 5e 2ee* /e%. A. G1; Ooluntary dissolution o condominium corporation 7amended8

Sec% 0D% T#e c-*+-/)*)1/ c-(0-( %)-* / , $"- 2e +)""-$5e+ 2, %#e '')(/ %)5e 5-%e -' $$ %#e "%-c&#-$+e(" -( /e/2e(" %#e(e-' % .e*e( $ -( "0ec) $ /ee%)*. +1$, c $$e+ '-( "1c# 01(0-"e@ <rovided, T# % $$ %#e (eI1)(e/e*%" -' Sec%)-* 82 -' %#e C-(0-( %)-* L ! (e c-/0$)e+ !)%#. 1.. G11 'isposition o common areas Sec% 0-% A c-*+-/)*)1/ c-(0-( %)-* "# $$ *-%4 +1()*. )%" e;)"%e*ce4 "e$$4 e;c# *.e4 $e "e -( -%#e(!)"e +)"0-"e -' %#e c-//-* (e " -!*e+ -( #e$+ 2, )% )* %#e c-*+-/)*)1/ 0(-Bec% 1*$e"" 1%#-()3e+ 2, %#e '')(/ %)5e 5-%e -' ")/0$e / B-()%, -' %#e (e.)"%e(e+ -!*e("@ <rovided, T# % 0()-( *-%)')c %)-* %- $$ (e.)"%e(e+ -!*e(" (e +-*e> *+ <rovided f rther, T# % %#e c-*+-/)*)1/ c-(0-( %)-* / , e;0 *+ -( )*%e.( %e %#e 0(-Bec% !)%# *-%#e( 10-* %#e '')(/ %)5e 5-%e -' ")/0$e / B-()%, -' %#e (e.)"%e(e+ -!*e("4 "12Bec% -*$, %%#e ')* $ 00(-5 $ -' %#e H-1")*. L *+ U"e Re.1$ %-(, B- (+. +As amended !y R% A% ,o% E3//4 Art. 491. 1one of the co.owners shall% without the consent of the others% make alterations in the thing owned in common% even though benefits for all would result therefrom. 7owever% if the withholding of the consent b" one or more of the co.owners is clearl" prejudicial to the common interest% the courts ma" afford ade-uate relief. 4n order to ma(e alterations, the consent o all co/owners is needed. #n alteration is an act o strict ownership 7i.e. any act o encumbrance8 or one which involves a change in the use o the thing 7i.e. bought Tamara$ FN to carpool and then decide to rent it out8. Fowever, i the withholding o the consent by 1 or more o the creditors is clearly pre&udicial to the common interest, the court may intervene and a ord ade*uate relie .

Art. 492. ?or the administration and better enjo"ment of the thing owned in common% the resolutions of the majorit" of the co.owners shall be binding. There shall be no majorit" unless the resolution is approved b" the co. owners who represent the controlling interest in the object of the co. ownership. >hould there be no majorit"% or should the resolution of the majorit" be seriousl" prejudicial to those interested in the propert" owned in common% the court% at the instance of an interested part"% shall order such measures as it ma" deem proper% including the appointment of an administrator. /henever a part of the thing belongs e,clusivel" to one of the co. owners% and the remainder is owned in common% the preceding provision shall appl" onl" to the part owned in common. #cts o administration need a ma&ority. >a&ority is computed not by counting heads but by ma&ority o the controlling interest in the co/ownership. #n e$ample o an act o administration is replacing the tires o a car owned in common with another brand o tires.

Art. 493. 8ach co.owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto% and he ma" therefore alienate% assign or mortgage it% and even substitute another person in its enjo"ment% e,cept when personal rights are involved. Fut the effect of the alienation or the mortgage% with respect to the co.owners% shall be limited to the portion which ma" be allotted to him in the division upon the termination of the co. ownership. #rticle ;A3 is the rule regarding ractional interest. The partner provision o #rticle ;A3 is #rticle ;@1 . #rticle ;A3 provides that each co/owner shall have the ull ownership o his part and o the ruits and bene its pertaining thereto, and he may there ore alienate, assign or mortgage it, and even substitute another person in its en&oyment, e$cept when personal rights are involved. 9ut the e ect o the alienation or the mortgage, with respect to the co/owners, shall be limited to the portion which may be allotted to him in the division upon the termination o the co/ownership. #rticle ;@1 provides that each co/owner may use the thing owned in common, provided he does so in accordance with the purpose or which it is intended and in such a way as not to in&ure the interest o the co/ownership or prevent the other co/owners rom using it according to their rights. # co/owner may lease his ractional or ideal share. # co/owner may not dispose o the entire property owned in common. 4 he does so, the transaction is valid in so ar as his ideal share is concern.

Art. 494. 1o co.owner shall be obliged to remain in the co.ownership. 8ach co.owner ma" demand at an" time the partition of the thing owned in common% insofar as his share is concerned. 1evertheless% an agreement to keep the thing undivided for a certain period of time% not e,ceeding ten "ears% shall be valid. This term ma" be e,tended b" a new agreement. A donor or testator ma" prohibit partition for a period which shall not e,ceed twent" "ears. 1either shall there be an" partition when it is prohibited b" law. 1o prescription shall run in favor of a co.owner or co.heir against his co.owners or co.heirs so long as he e,pressl" or impliedl" recogni$es the co. ownership. Ways o Terminating a Co/-wnership 1. =artition =artition converts into certain and de inite parts the respective share o the undivided shares o the co/owners.

#rt. ;@1. ,ach co/owner may use the thing owned in common, provided he does so in accordance with the purpose or which it is intended and in such a way as not to in&ure the interest o the co/ownership or prevent the other co/owners rom using it according to their rights. The purpose o the co/ownership may be changed by agreement, e$press or implied.

General )ule* =artition is demandable by any o the co/owners as a matter o right at any time. 4 the other co/owners do not consent, then go to court. Exceptions: a. When there is an agreement to (eep the thing undivided The ma$imum period or such an agreement is 1. years. The agreement can be e$tended. +uch an e$tension must not go beyond 1. years. There is no limit as to the number o e$tensions. What i the co/owners agree to e$tend or more than 1. years, is the agreement totally void or it is good or only 1. years% The less radical view would say that it is valid or only 1. years. =artition may either be by agreement o the parties or by &udicial proceedings 7#rticle ;A1 8. The prohibition by the donor or testator cannot e$ceed 2. years. What i donor states that the prohibition is or 3. years, is the prohibition totally void or it is good or only 2. years% The less radical view would say that it is valid or only 2. years. ,ven though the testator or donor prohibits partition, the co/ ownership shall terminate when6 i. #ny o the causes or which partnership is dissolved ta(es place" or

b. When prohibited by the donor or testator

ii. The court inds compelling reasons that division should be ordered upon petition o one o the co/heirs c. When prohibited by law Exception to t"e exception: When compelling reasons it must be partitioned 7i.e.! #rticle 10A , Family Code8 #rticle ;A@ governs in this case. Under #rticle ;A@, when the thing is essentially indivisible and the co/owners cannot agree that it be allotted to one o them who shall indemni y the others, it shall be sold and the its proceeds be distributed.

d. When partition renders the thing unserviceable

Art. 42'. =artition may be made by agreement between the parties or by &udicial proceedings. =artition shall be governed by the )ules o Court inso ar as they are consistent with this Code.

Art. *%2. The amily home shall continue despite the death o one or both spouses or o the unmarried head o the amily or a period o ten years or or as long as there is a minor bene iciary, and the heirs cannot partition the same unless the court inds compelling reasons there or. This rule shall apply regardless o whoever owns the property or constituted the amily home.

#rt. ;A@. Whenever the thing is essentially indivisible and the co/owners cannot agree that it be allotted to one o them who shall indemni y the others, it shall be sold and its proceeds distributed.

What is allowed only is a constructive and not a physical partition 7i.e. in a partition o a house8.

e. When the legal nature o the thing does not allow partition 7i.e. party wall8 2. Consolidation 3. 'estruction or loss ;. =rescription General )ule* =rescription will not run i the ob&ect is in possession o anyone o the co/owners since such possession is not adverse. Exception: Co/owner may repudiate the co/ownership and the prescriptive period will start to run.

#nything that terminates a co/ownership is similar to a partition. 4n 7uason vs. 7uason! the co/owners o a huge parcel o land agreed to improve the property by illing it and constructing roads thereon and then sub/dividing it into small lots or sale. +ubse*uently, one o the co/owners as(ed the court or partition alleging that #rticle ;A; was violated. The +C said that the contract ar rom violating the legal provision that orbids a co/owner rom being obliged to remain a party to the community precisely has or its purpose and ob&ect the dissolution o the co/ownership and o the community by selling the parcel held in common and dividing the proceeds o the sale among the co/owners. The obligation imposed in the contract to preserve the co/ownership until all the lots shall have been sold, is a mere incident to the main ob&ect o dissolving the co/ ownership. 9y virtue o the document, the parties thereto practically and substantially entered into a contract o partnership as the best and most e$pedient means o eventually dissolving the co/ownership, and the li e o said partnership to end when the ob&ect o its creation shall have been attained.

+++. Possession 2 Einds o =ossession A. &ossession in t"e concept o. an o;ner 7en concepto de dueno) &ossession in the concept o# an owner :,+7 N,T re#er to the possessors inner belie or disposition regarding the property in his possession. =ossession in the concept o an owner re ers to his overt acts which tend to induce the belie on the part o others that he is the owner. =ossession in the concept o an owner is ius possidendi. =ossession in the concept o an owner by its nature is provisional. usually ends up as ownership. Conse*uences o =ossession in the Concept o an -wner 1. =ossession is converted into ownership a ter the re*uired lapse o time 7#rticle 0;.8 Art. 540. #nl" the possession ac-uired and enjo"ed in the concept of owner can serve as a title for ac-uiring dominion. 2. =resumption o &ust title 7#rticle 0;18 4t

Art. 541. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. )elevance o the 4nner 'isposition o the =ossessor in the Concept o an -wner 72ood Faith, 9ad Faith8 1. Good ?aith a. Re>uisites o. Goo+ )ait" i. -stensible title or mode o ac*uisition 4 its not an ostensible title but a real title, then its ownership. 4 there was no vice or de ect in the title, then its ownership. ,$amples o vice or de ect in title 1. 2rantor was not the owner 2. )e*uirements or transmission were not complied with 3. >ista(e in the identity o the person ;. =roperty was not really res nullius iii. =ossessor is ignorant o the vice or de ect and must have an honest belie that the thing belongs to him i. ,therwise, its bad #aith. b. E..ects o. Goo+ )ait" As to t$e "ruits 1. Fruits already received 7#rticle 0;;, :18 Art. 544$ %1. A possessor in good faith is entitled to the fruits received before the possession is legall" interrupted. ,ntitled to all the ruits until possession is legally interrupted 7i.e. be ore summons8

ii. Oice or de ect in the title

2. Fruits still pending 7#rticle 0;08 Art. 545. +f at the time the good faith ceases% there should be an" natural or industrial fruits% the possessor shall have a right to a part of the e,penses of cultivation% and to a part of the net harvest% both in proportion to the time of the possession. The charges shall be divided on the same basis b" the two possessors. The owner of the thing ma"% should he so desire% give the possessor in good faith the right to finish the cultivation and gathering of the growing

fruits% as an indemnit" for his part of the e,penses of cultivation and the net proceeds2 the possessor in good faith who for an" reason whatever should refuse to accept this concession% shall lose the right to be indemnified in an" other manner. ,ntitled to pro/rate the ruits already growing when his possession is legally interrupted For e$ample, possessor planted crops. 4t ta(es the crops th ; months to grow. -n the beginning o the ; month, th summons is served. #t the end o the ; month, the crops are harvested. Under #rticle 0;0, the possessor is entitled to T o the crops since the possessor was in possession or 3 months. Fowever, he also pays T o the e$penses.

ii. As to necessar8 expenses 7#rticle 0;1, :18 Art. 546$ %1. 1ecessar" e,penses shall be refunded to ever" possessor2 but onl" the possessor in good faith ma" retain the thing until he has been reimbursed therefor. The possessor in good necessary e$penses. aith is entitled to a re und o

The possessor in good aith may retain the thing until he is reimbursed or necessary e$penses.

iii. As to use"ul expenses 7#rticles 0;1, :2, 0;?8 Art. 546$ %2. =seful e,penses shall be refunded onl" to the possessor in good faith with the same right of retention% the person who has defeated him in the possession having the option of refunding the amount of the e,penses or of pa"ing the increase in value which the thing ma" have ac-uired b" reason thereof. Art. 547. +f the useful improvements can be removed without damage to the principal thing% the possessor in good faith ma" remove them% unless the person who recovers the possession e,ercises the option under paragraph 4 of the preceding article. The possessor in good aith is entitled to a re und o use ul e$penses. The possessor in good aith may retain the thing until he is reimbursed or use ul e$penses. The other party has the option to 1. )e und the amount o e$penses" or 2. =ay the increase in value which the thing may have ac*uired

4 the use ul improvements can be removed without damaging the principal thing, the possessor in good aith may remove them unless the other party wants to (eep the use ul improvements. 4n which case, the other party has to e$ercise the two previous options.

iv. As to ornamental expenses 7#rticle 0;@8 Art. 548. 8,penses for pure lu,ur" or mere pleasure shall not be refunded to the possessor in good faith2 but he ma" remove the ornaments with which he has embellished the principal thing if it suffers no injur" thereb"% and if his successor in the possession does not prefer to refund the amount e,pended. The possessor in good aith is not entitled to a re und or ornamental e$penses. 9ut he may remove the ornamental improvements i they do not cause damage to the principal thing.

v. As to prescription 7#rticles 1132, 113;8 Art. 1132. The ownership of movables prescribes through uninterrupted possession for four "ears in good faith. The ownership of personal propert" also prescribes through uninterrupted possession for eight "ears% without need of an" other condition. /ith regard to the right of the owner to recover personal propert" lost or of which he has been illegall" deprived% as well as with respect to movables ac-uired in a public sale% fair% or market% or from a merchant9s store the provisions of articles ((C and '(D( of this Code shall be observed. Art. 1134. #wnership and other real rights over immovable propert" are ac-uired b" ordinar" prescription through possession of ten "ears. =rescriptive =eriod6 1. >ovables ; years 2. 4mmovables 1. years vi. As to lia5ilit8 "or deterioration or loss 7#rticle 002, :18 Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed% e,cept in cases in which it is proved that he has acted with fraudulent intent or negligence% after the judicial summons.

The possessor in good aith is not liable since he thought that he was the owner. -nce the good aith ceases 7i.e. summons served8, then the possessor is liable i there was raudulent intent or negligence.

2. Fad ?aith E..ects o. =a+ )ait" i. As to t$e "ruits 7#rticle 0;A8 Art. 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received% and shall have a right onl" to the e,penses mentioned in paragraph ' of article (;@ and in article ;;6. The e,penses incurred in improvements for pure lu,ur" or mere pleasure shall not be refunded to the possessor in bad faith% but he ma" remove the objects for which such e,penses have been incurred% provided that the thing suffers no injur" thereb"% and that the lawful possessor does not prefer to retain them b" pa"ing the value the" ma" have at the time he enters into possession. The possessor in bad aith shall reimburse the ruits receive and those which the legitimate possessor could have received The possessor in bad aith has a right o reimbursement or necessary e$penses or the production, gathering and preservation o the ruits. The possessor in good necessary e$penses. aith is entitled to a re und o

ii. As to t$e necessar8 expenses

The possessor in good aith has no right to retain the thing until he is reimbursed or necessary e$penses. The possessor in bad aith is not entitled to a re und o use ul e$penses. The possessor in bad aith is not entitled to a re und o ornamental e$penses The possessor in bad aith is entitled to remove the ornamental improves only i 6 i. )emoval can be accomplished without damaging the principal thing and

iii. As to use"ul expenses

iv. As to ornamental expenses

ii. The law ul possessor does not pre er to retain the ornamental improvements by paying the value thereo at the time he enters into possession v. As to prescription 7#rticles 1132, 113?8 Art. 1132. The ownership of movables prescribes through uninterrupted possession for four "ears in good faith. The ownership of personal propert" also prescribes through uninterrupted possession for eight "ears% without need of an" other condition. /ith regard to the right of the owner to recover personal propert" lost or of which he has been illegall" deprived% as well as with respect to movables ac-uired in a public sale% fair% or market% or from a merchant9s store the provisions of articles ((C and '(D( of this Code shall be observed. Art. 1137. #wnership and other real rights over immovables also prescribe through uninterrupted adverse possession thereof for thirt" "ears% without need of title or of good faith. =rescriptive =eriod 1. >ovables @ years 2. 4mmovables 3. years vi. As to lia5ilit8 "or deterioration or loss 7#rticle 002, :28 Article 552$ %2. A possessor in bad faith shall be liable for deterioration or loss in ever" case% even if caused b" a fortuitous event. The possessor in bad aith becomes an insurer o the property. Fe is liable even i the thing is destroyed, loss or deteriorates due to a ortuitous event

=resumptions #pplicable 1. 0ust Title 7#rticle 0;18 Art. 541. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. # possessor in the concept o owner has in his avor the legal presumption that he possess &ust title and he cannot be obliged to show or prove it.

2. Good ?aith 7#rticles 02?, 00A8 Art. 527. Good faith is alwa"s presumed% and upon him who alleges bad faith on the part of a possessor rests the burden of proof. Art. 559. The possession of movable propert" ac-uired in good faith is e-uivalent to a title. 1evertheless% one who has lost an" movable or has been unlawfull" deprived thereof ma" recover it from the person in possession of the same. +f the possessor of a movable lost or which the owner has been unlawfull" deprived% has ac-uired it in good faith at a public sale% the owner cannot obtain its return without reimbursing the price paid therefor. 2ood aith is always presumed, and upon him who alleges bad aith on the part o a possessor rests the burden o proo . The possession o movables ac*uired in good aith is e*uivalent to title. ,*uivalent to title means presumptive title su icient to serve as a basis or prescription.

General )ule* # person who lost or has been unlaw ully deprived o the movable, may recover it rom the person who has possession o the movable. Unlaw ul deprivation e$tends to all instances where there is no valid transmission 7i.e. the t, robbery, etc.8

Exceptions: a. 4 the possessor obtained the movable in good aith at a public sale, the owner cannot get it bac( unless he reimburses the possessor. b. 4 the owner is estopped 7#rticle 10.0,:18 Art. 1505. >ubject to the provisions of this Title% where goods are sold b" a person who is not the owner thereof% and who does not sell them under authorit" or with the consent of the owner% the bu"er ac-uires no better title to the goods than the seller had% unless the owner of the goods is b" his conduct precluded from den"ing the seller9s authorit" to sell. c. I# the disposition is made under any #actors act ?$rticle 'D(D, :28 Art. 1505$ %2. 1othing in this Title% however% shall affect* 3'5 The provisions of an" factors9 act% recording laws% or an" other provision of law enabling the apparent owner of goods to dispose of them as if he were the true owner thereof2

This is no longer applicable under the present law since we now have the 5aw on #gency.

d. Court order e. I# purchased ay a merchants store ?$rticle 'D(D?/@@ 365 Purchases made in a merchant9s store% or in fairs% or markets% in accordance with the Code of Commerce and special laws. $n e4ample o# a merchants store would be 7) or Custans. Without this e$ception, commercial transactions would be destabili3ed. #rticle 10.0, :3 states in accordance with the Code o Commerce and special laws. #rticles @0 and @1 was repealed. 4s #rticle 10.0, :3 still applicable% =ro essor %alane doesnt know.

4 title is lost by prescription 7#rticle 11328 Art. 1132. The ownership of movables prescribes through uninterrupted possession for four "ears in good faith. The ownership of personal propert" also prescribes through uninterrupted possession for eight "ears% without need of an" other condition. /ith regard to the right of the owner to recover personal propert" lost or of which he has been illegall" deprived% as well as with respect to movables ac-uired in a public sale% fair% or market% or from a merchant9s store the provisions of articles ((C and '(D( of this Code shall be observed.

g. 4 the possessor is the holder in due course o instrument o title 7#rticle 101@8

a negotiable

Art. 1518. The validit" of the negotiation of a negotiable document of title is not impaired b" the fact that the negotiation was a breach of dut" on the part of the person making the negotiation% or b" the fact that the owner of the document was deprived of the possession of the same b" loss% theft% fraud% accident% mistake% duress% or conversion% if the person to whom the document was negotiated or a person to whom the document was subse-uentl" negotiated paid value therefor in good faith without notice of the breach of dut"% or loss% theft% fraud% accident% mistake% duress or conversion.

3. Continuit" of Good ?aith 7#rticles 02@, 02A8 Art. 528. Possession ac-uired in good faith does not lose this character e,cept in the case and from the moment facts e,ist which show that the possessor is not unaware that he possesses the thing improperl" or wrongfull". Art. 529. +t is presumed that possession continues to be enjo"ed in the same character in which it was ac-uired% until the contrar" is proved. =ossession ac*uired in good aith does not lose this character e$cept in the case and rom the moment acts e$ist which show that the possessor is not unaware that he possesses the thing improperly or wrong ully. 4t is presumed that possession continues to be en&oyed on the same character in which it was ac*uired, until the contrary is proved.

;. 1on.+nterruption 7#rticles 00;, 0118 Art. 554. A present possessor who shows his possession at some previous time% is presumed to have held possession also during the intermediate period% in the absence of proof to the contrar". Art. 561. #ne who recovers% according to law% possession unjustl" lost% shall be deemed for all purposes which ma" redound to his benefit% to have enjo"ed it without interruption. # present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence o proo to the contrary. -ne who recovers, according to law, possession un&ustly lost, shall be deemed or all purposes which may redound to his bene it, to have en&oyed it without interruption.

0. 8,tension to the :ovables /ithin or +nside 7#rticles 0;2, ;218 Art. 542. The possession of real propert" presumes that of the movables therein% so long as it is not shown or proved that the" should be e,cluded. Art. 426. /henever b" provision of the law% or an individual declaration% the e,pression Himmovable things or propert"%H or Hmovable things or propert"%H is used% it shall be deemed to include% respectivel"% the things enumerated in Chapter ' and Chapter 4. /henever the word Hmuebles%H or Hfurniture%H is used alone% it shall not be deemed to include mone"% credits% commercial securities% stocks and bonds% jewelr"% scientific or artistic collections% books% medals% arms% clothing% horses or carriages

and their accessories% grains% li-uids and merchandise% or other things which do not have as their principal object the furnishing or ornamenting of a building% e,cept where from the conte,t of the law% or the individual declaration% the contrar" clearl" appears. The possession o real property presumes that o the movables therein, so long as it is not shown or proved that they should be e$cluded.

F. &ossession in t"e concept o. a "ol+er 7en concepto de tenedor8 The possessor in the concept o a holder carries with it no assertion o ownership. There are no overt acts which would induce a belie on the part o others that he is the owner. The possessor in the concept o a holder ac(nowledges a superior right in another person which the possessor admits is ownership. =ossession in the concept o a holder is ius possessionis. This is right to possess is an independent right 7i.e. lessee, trustee, agent, antichretic creditor, pledgee, co/owner with respect to the entire thing, etc.8 =ossession in the concept o a holder will never become ownership. Presumptions Applicable 1. 1on.+nterruption 7#rticles 00;, 0118 Art. 554. A present possessor who shows his possession at some previous time% is presumed to have held possession also during the intermediate period% in the absence of proof to the contrar". Art. 561. #ne who recovers% according to law% possession unjustl" lost% shall be deemed for all purposes which ma" redound to his benefit% to have enjo"ed it without interruption. # present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence o proo to the contrary. -ne who recovers, according to law, possession un&ustly lost, shall be deemed or all purposes which may redound to his bene it, to have en&oyed it without interruption.

2. 8,tension to :ovables /ithin or +nside 7#rticles 002, ;218 Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed% e,cept in cases in which it is proved that he has acted with fraudulent intent or negligence% after the judicial summons.

A possessor in bad faith shall be liable for deterioration or loss in ever" case% even if caused b" a fortuitous event. Art. 426. /henever b" provision of the law% or an individual declaration% the e,pression Himmovable things or propert"%H or Hmovable things or propert"%H is used% it shall be deemed to include% respectivel"% the things enumerated in Chapter ' and Chapter 4. /henever the word Hmuebles%H or Hfurniture%H is used alone% it shall not be deemed to include mone"% credits% commercial securities% stocks and bonds% jewelr"% scientific or artistic collections% books% medals% arms% clothing% horses or carriages and their accessories% grains% li-uids and merchandise% or other things which do not have as their principal object the furnishing or ornamenting of a building% e,cept where from the conte,t of the law% or the individual declaration% the contrar" clearl" appears. The possession o real property presumes that o the movables therein, so long as it is not shown or proved that they should be e$cluded.

4n both possession in the concept o an owner and possession in the concept o a holder, both are protected by #rticle 03A . #c*uisition and 5oss o =ossession A. Ac>uisition 3o4 is it Ac=uired: =ossession is ac*uired by the material occupation o a thing or the e$ercise o a right, or by the act that it is sub&ect to the action o our will, or by the proper acts and legal ormalities established or ac*uiring such right 7#rticle 0318 Art. 531. Possession is ac-uired b" the material occupation of a thing or the e,ercise of a right% or b" the fact that it is subject to the action of our will% or b" the proper acts and legal formalities established for ac-uiring such right. Ac=uired 58 G$om: =ossession may be ac*uired by the same person who is to en&oy it, by his legal representative, by his agent, or by any person without any power whatever but in the last case, the possession shall not be considered as ac*uired until the person in whose name the act o possession was e$ecuted has rati ied the same, without pre&udice to the &uridical conse*uences o negotiorum gestio in a proper case 7#rt. 0328.

Art. %)2. ,very possessor has a right to be respected in his possession" and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the )ules o Court. # possessor deprived o his possession through orcible entry may within ten days rom the iling o the complaint present a motion to secure rom the competent court, in the action or orcible entry, a writ o preliminary mandatory in&unction to restore him in his possession. The court shall decide the motion within thirty 73.8 days rom the iling thereo .

Art. 532. Possession ma" be ac-uired b" the same person who is to enjo" it% b" his legal representative% b" his agent% or b" an" person without an" power whatever* but in the last case% the possession shall not be considered as ac-uired until the person in whose name the act of possession was e,ecuted has ratified the same% without prejudice to the juridical conse-uences of negotiorum gestio in a proper case. F. :oss =ossession may be lost 1. F" abandonment 7#rticle 000 7188 #bandonment may either be6 a. &er b. 7e anent porar! =rescription will run. There is no need or the prescriptive period to run.

+ee #rticle 1120

Art. 1125. An" e,press or tacit recognition which the possessor ma" make of the owner9s right also interrupts possession. 2. F" assignment made to another either b" onerous or gratuitous title 7#rticle 000 7288 'isposition 3. F" destruction or total loss of the thing% or it goes out of commerce 7#rticle 000 7388 +ee #rticle 11@A 718, 728 Art. 1189. /hen the conditions have been imposed with the intention of suspending the efficac" of an obligation to give% the following rules shall be observed in case of the improvement% loss or deterioration of the thing during the pendenc" of the condition* 3'5 +f the thing is lost without the fault of the debtor% the obligation shall be e,tinguished2 345 +f the thing is lost through the fault of the debtor% he shall be obliged to pa" damages2 it is understood that the thing is lost when it perishes% or goes out of commerce% or disappears in such a wa" that its e,istence is unknown or it cannot be recovered2 ;. F" possession of another subject to the provisions of Art. (6A% if the new possession has lasted longer than ' "ear. Fut the real right of possession is not lost till after the lapse of 'D "ears 7#rticle 000 7;88

The complaint or orcible entry must be iled within 1 year rom the orcible entry. Accion pu5liciana must be iled a ter the lapse o 1 year rom the orcible entry but be ore the lapse o 1. years. 4n this case, possession is not really lost until the end o the 1. year.
th

0. F" accion rein(in+icatoria Art. 1120. Possession is interrupted for the purposes of prescription% naturall" or civill". Art. 1121. Possession is naturall" interrupted when through an" cause it should cease for more than one "ear. The old possession is not revived if a new possession should be e,ercised b" the same adverse claimant. Art. 1122. +f the natural interruption is for onl" one "ear or less% the time elapsed shall be counted in favor of the prescription. Art. 1123. Civil interruption is produced b" judicial summons to the possessor. Art. 1124. 0udicial summons shall be deemed not to have been issued and shall not give rise to interruption* 3'5 +f it should be void for lack of legal solemnities2 345 +f the plaintiff should desist from the complaint or should allow the proceedings to lapse2 365 +f the possessor should be absolved from the complaint. +n all these cases% the period of the interruption shall be counted for the prescription. 1. F" eminent domain +<. =sufruct Usu ruct is a real right temporary in nature which authori3es the holder to en&oy all the bene#its which result #rom the normal en;oyment and e4ploitation o# anothers property with the obligation to return at the designated time either the same thing or in special cases its e*uivalent. A. 3 Ele ents in a 8su.ruct The essential element o a usu ruct is that it is a real but temporary right to en;oy someone elses property. The natural element o a usu ruct is the obligation to preserve the orm and substance the property o another. 1. 8ssential

2. 1atural

4n e$traordinary cases (nown as irregular or imper ect or abnormal usu ruct, this natural element is not present. The usu ructuary does not have to return the same property. Einds o 4mper ect Usu ruct a. Article 573 Art. 573. /henever the usufruct includes things which% without being consumed% graduall" deteriorate through wear and tear% the usufructuar" shall have the right to make use thereof in accordance with the purpose for which the" are intended% and shall not be obliged to return them at the termination of the usufruct e,cept in their condition at that time2 but he shall be obliged to indemnif" the owner for an" deterioration the" ma" have suffered b" reason of his fraud or negligence. Usu ruct includes things which gradually deteriorate through wear and tear Usu ructuary shall have the right to ma(e use. The usu ructuary shall not be obliged to return the property in its original condition. The usu ructuary shall indemni y the property owner deterioration in case he is guilty o raud or negligence. or the

b. Article 574 Art. 574. /henever the usufruct includes things which cannot be used without being consumed% the usufructuar" shall have the right to make use of them under the obligation of pa"ing their appraised value at the termination of the usufruct% if the" were appraised when delivered. +n case the" were not appraised% he shall have the right to return at the same -uantit" and -ualit"% or pa" their current price at the time the usufruct ceases. Usu ruct includes things which cannot be used without being consumed This is a usu ruct in name only. 4t is really a mutuum 7loan8. Usu ructuary shall have the right to ma(e use. 4 the property was appraised, the usu ructuary shall pay its appraised value. 4 the property was not appraised, the usu ructuary may either i. )eturn the same *uantity and *uality" or ii. =ay their current price at the time the usu ruct ceases

c. Article 591$ %4 Article 591$ %4. >hould the usufruct be on sterile animals% it shall be considered% with respect to its effects% as though constituted on fungible things. +hould the usu ruct be on sterile animals, it shall be considered as though it was constituted on ungible things.

3. Accidental The accidental elements are those which are the sub&ect o stipulation 7i.e. how long will the usu ruct last8. :ease !8A>8 2enerally covers only particular or speci ic use a

F. 8su.ruct Distin/uis"e+ .ro FA>+> Extent ,ature o" t$e rig$t

=>=?)=CT Covers all ruits and uses as a rule 4s always a real right

4s a real right only i , as in the case o a lease over real property, the lease is registered or is or more than one year, otherwise, it is only a personal right The lessor may or may not be the owner7as when there is a sub/lease or when the lessor is only a usu ructuary8 >ay be created as a rule only by contract, and by way o e$ception, by law7 as in the case o an implied new lease or when a builder has built in 2F on the land o another a building, when the land is considerably worth more in value than the building8 -wner or lessor is more or less active, and he ma(es the lessee en&oy / 2hace goKar The lessee generally has no duty to pay or repairs 5essees canCt constitute a usu ruct on the property leased

;reator o" t$e rig$t

Can be created only by the owner or by a duly authori3ed agent, acting in behal o the owner >ay be created by law, contract, last will or prescription

.rigin

;ause

Repairs 7axes .t$er t$ings

The owner is more or less passive, and allows the usu ructuary to en&oy the thing given in usu#ruct 2de;a goKar Usu ructuary has the duty to ma(e ordinary repairs Usu ructuary pays or annual charges B ta$es on ruits Usu ructuary may lease property itsel to another the

C. ?in+s o. 8su.ruct 1. According to >ource 7#rticle 0138 Art. 563. =sufruct is constituted b" law% b" the will of private persons e,pressed in acts inter (i(os or in a last will and testament% and b" prescription. a. Ooluntary or Conventional 7i.e. contracts, donations, wills8 b. 5egal created by law 7i.e. #rticle 221, :2, Family Code8 Art. 226$ %2. The right of the parents over the fruits and income of the child9s propert" shall be limited primaril" to the child9s support and secondaril" to the collective dail" needs of the famil". 2. According to 8,tent 7#rticle 01;8 Art. 564. =sufruct ma" be constituted on the whole or a part of the fruits of the thing% in favor of one more persons% simultaneousl" or successivel"% and in ever" case from or to a certain da"% purel" or conditionall". +t ma" also be constituted on a right% provided it is not strictl" personal or intransmissible. a. Total all o the ruits b. =artial part o the ruits 3. According to Persons 8njo"ing the )ight of =sufruct 7#rticle 01;8 a. +imple only one usu ructuary en&oys b. >ultiple several usu ructuaries en&oy i. +imultaneous ii. +uccessive ;. According to the Terms of the =sufruct 7#rticle 01;8 a. =ure no terms and conditions b. Conditional c. With a Term or =eriod 0. According to the #bject of the =sufruct 7#rticle 01;8 a. Things b. )ights # usu ruct may be constituted on a right provided that it is not strictly personal or intransmissible.

D. Ri/"ts o. t"e 8su.ructuar! 1. )ight to the fruits 7#rticles 011 / 0?.8 Art. 566. The usufructuar" shall be entitled to all the natural% industrial and civil fruits of the propert" in usufruct. /ith respect to

hidden treasure which ma" be found on the land or tenement% he shall be considered a stranger. Art. 567. 1atural or industrial fruits growing at the time the usufruct begins% belong to the usufructuar". Those growing at the time the usufruct terminates% belong to the owner. +n the preceding cases% the usufructuar"% at the beginning of the usufruct% has no obligation to refund to the owner an" e,penses incurred2 but the owner shall be obliged to reimburse at the termination of the usufruct% from the proceeds of the growing fruits% the ordinar" e,penses of cultivation% for seed% and other similar e,penses incurred b" the usufructuar". The provisions of this article shall not prejudice the rights of third persons% ac-uired either at the beginning or at the termination of the usufruct. Art. 568. +f the usufructuar" has leased the lands or tenements given in usufruct% and the usufruct should e,pire before the termination of the lease% he or his heirs and successors shall receive onl" the proportionate share of the rent that must be paid b" the lessee. Art. 569. Civil fruits are deemed to accrue dail"% and belong to the usufructuar" in proportion to the time the usufruct ma" last. Art. 570. /henever a usufruct is constituted on the right to receive a rent or periodical pension% whether in mone" or in fruits% or in the interest on bonds or securities pa"able to bearer% each pa"ment due shall be considered as the proceeds or fruits of such right. /henever it consists in the enjo"ment of benefits accruing from a participation in an" industrial or commercial enterprise% the date of the distribution of which is not fi,ed% such benefits shall have the same character. +n either case the" shall be distributed as civil fruits% and shall be applied in the manner prescribed in the preceding article. ,ntitled to all the natural, industrial, and civil ruits o the property in usu ruct. !atural or industrial ruits growing at the time the usu ruct begins, belong to the usu ructuary. Those growing at the time the usu ruct terminates belong to the owner. The usu ructuary at the beginning o the usu ruct, has no obligation to re und to the owner any e$penses incurred. The owner shall reimburse at the termination o the usu ruct rom the proceeds o the growing ruits, the ordinary e$penses o cultivation incurred by the usu ructuary. )ents derived rom the lease o properties in usu ruct are civil ruits. The usu ructuary is entitled to receive such rents only up to the time o the

e$piration o the usu ruct, i the lease still subsists a ter the termination o the usu ruct. For e$ample, i the lease is or 0 years and the usu ruct nd terminates a ter the 2 year, the usu ructuary shall be entitled to 2 years rent" the rent or the remaining period will belong to the owner. 2. )ight to enjo" an" increase in the accession or an" servitude 7#rticle 0?18 Art. 571. The usufructuar" shall have the right to enjo" an" increase which the thing in usufruct ma" ac-uire through accession% the servitudes established in its favor% and% in general% all the benefits inherent therein. The usu ructuary shall have the right to en&oy any increase which the thing in usu ruct may ac*uire through accession, the servitudes established in its avor, and, in general, all the bene its inherent therein.

3. )ight to alienate the right of usufruct 7#rticles 0?2, 0A.8 Art. 572. The usufructuar" ma" personall" enjo" the thing in usufruct% lease it to another% or alienate his right of usufruct% even b" a gratuitous title2 but all the contracts he ma" enter into as such usufructuar" shall terminate upon the e,piration of the usufruct% saving leases of rural lands% which shall be considered as subsisting during the agricultural "ear. Art. 590. A usufructuar" who alienates or leases his right of usufruct shall answer for an" damage which the things in usufruct ma" suffer through the fault or negligence of the person who substitutes him. The usu ructuary may lease or alienate his right o gratuitous title. usu ruct, even by

#ll the contracts he may enter into as such usu ructuary shall terminate upon the e$piration o the usu ruct e$cept lease o rural lands, which shall be considered as subsisting during the agricultural year. # usu ructuary who alienates or leases his right o usu ruct shall answer or any damage which the things in usu ruct may su er through the ault or negligence o the person who substituted him.

;. )ight to recover 7#rticle 0?@8 Art. 578. The usufructuar" of an action to recover real propert" or a real right% or an" movable propert"% has the right to bring the action and to oblige the owner thereof to give him the authorit" for this purpose and to furnish him whatever proof he ma" have. +f in conse-uence of the enforcement of the action he ac-uires the thing claimed% the usufruct shall be limited to the fruits% the dominion remaining with the owner.

The usu ructuary o an action to recover real property or a real right, or movable property, has the right to bring the action. The owner is obligated to give him the authority or this purpose and to urnish him whatever proo he may have. 4 in conse*uence o the en orcement o the action he ac*uires the thing claimed, the usu ruct shall be limited to the ruits, the dominion remaining with the owner.

0. )ight to make useful and ornamental e,penses 7#rticle 0?A8 Art. 579. The usufructuar" ma" make on the propert" held in usufruct such useful improvements or e,penses for mere pleasure as he ma" deem proper% provided he does not alter its form or substance2 but he shall have no right to be indemnified therefor. 7e ma"% however% remove such improvements% should it be possible to do so without damage to the propert". 7uch right e4ists as long as he does not alter the propertys #orm or substance. The usu ructuary shall have no right o reimbursement. The usu ructuary may remove use improvements i it is possible to do so without causing damage to the property.

1. )ight to an" increase in the value due to indispensable repairs made 7#rticle 0A;8 Art. (C;. +f the owner should make the e,traordinar" repairs% he shall have a right to demand of the usufructuar" the legal interest on the amount e,pended for the time that the usufruct lasts. >hould he not make them when the" are indispensable for the preservation of the thing% the usufructuar" ma" make them2 but he shall have a right to demand of the owner% at the termination of the usufruct% the increase in value which the immovable ma" have ac-uired b" reason of the repairs. The usu ruct who has made the e$traordinary repairs necessary or preservation is entitled to recover rom the owner the increase in value which the tenement ac*uired by reason o such wor(.

8. #bligations of the =sufructuar" 1. To make an inventor" 7#rticle 0@38 Art. 583. The usufructuar"% before entering upon the enjo"ment of the propert"% is obliged* 3'5 To make% after notice to the owner or his legitimate representative% an inventor" of all the propert"% which shall contain an appraisal of the movables and a description of the condition of the immovables2

345 To give securit"% binding himself to fulfill the obligations imposed upon him in accordance with this Chapter. 4nventory contains an appraisal o the movables and a description o the immovables. , ect o !ot 2iving6 #rticles 0@1, 0AA

Art. 586. >hould the usufructuar" fail to give securit" in the cases in which he is bound to give it% the owner ma" demand that the immovables be placed under administration% that the movables be sold% that the public bonds% instruments of credit pa"able to order or to bearer be converted into registered certificates or deposited in a bank or public institution% and that the capital or sums in cash and the proceeds of the sale of the movable propert" be invested in safe securities. The interest on the proceeds of the sale of the movables and that on public securities and bonds% and the proceeds of the propert" placed under administration% shall belong to the usufructuar". ?urthermore% the owner ma"% if he so prefers% until the usufructuar" gives securit" or is e,cused from so doing% retain in his possession the propert" in usufruct as administrator% subject to the obligation to deliver to the usufructuar" the net proceeds thereof% after deducting the sums which ma" be agreed upon or judiciall" allowed him for such administration. Art. 599. The usufructuar" ma" claim an" matured credits which form a part of the usufruct if he has given or gives the proper securit". +f he has been e,cused from giving securit" or has been able to give it% or if that given is not sufficient% he shall need the authori$ation of the owner% or of the court in default thereof% to collect such credits. The usufructuar" who has given securit" ma" use the capital he has collected in an" manner he ma" deem proper. The usufructuar" who has not given securit" shall invest the said capital at interest upon agreement with the owner2 in default of such agreement% with judicial authori$ation2 and% in ever" case% with securit" sufficient to preserve the integrit" of the capital in usufruct. ,$ceptions to 2iving o 4nventory a. !o one will be in&ured 7#rticle 0@08 Art. 585. The usufructuar"% whatever ma" be the title of the usufruct% ma" be e,cused from the obligation of making an inventor" or of giving securit"% when no one will be injured thereb". b. Waiver o owner 7i.e. stipulation in the will or contract8

2. Give securit" 7#rticle 0@38 Art. 583. The usufructuar"% before entering upon the enjo"ment of the propert"% is obliged* 3'5 To make% after notice to the owner or his legitimate representative% an inventor" of all the propert"% which shall contain an appraisal of the movables and a description of the condition of the immovables2 345 To give securit"% binding himself to fulfill the obligations imposed upon him in accordance with this Chapter. , ect o !ot 2iving6 a. The owner may demand the ollowing 1. That the immovables be placed under administration 2. That the movables be sold 3. That the public bonds, instruments o credit payable to order or bearer be converted into registered certi icates or deposited in a ban( or public institution ;. That the capital or sums o in cash and the proceeds o the sale o the movable property be invested in sa e securities The interest on the proceeds o the sale o the movables and that on the public securities and bonds and the proceeds o the property placed under administration shall belong to the usu ructuary.

b. The owner i he so pre ers shall retain possession o the property as administrator until security is given. c. The usu ructuary who has not given security shall invest the capital collected at interest upon agreement with the owner" in de ault o the agreement with &udicial authori3ation.

4nstances when +ecurity is !ot )e*uired a. !o one will be in&ured 7#rticle 0@08 Art. 585. The usufructuar"% whatever ma" be the title of the usufruct% ma" be e,cused from the obligation of making an inventor" or of giving securit"% when no one will be injured thereb". b. Waiver c. 4 usu ructuary is the donor o the property 7#rticle 0@;8 Art. 584. The provisions of 1o. 4 of the preceding article shall not appl" to the donor who has reserved the usufruct of the propert" donated% or to the parents who are usufructuaries of their children9s propert"% e,cept when the parents contract a second marriage. d. 4n case o usu ruct by parents 7#rticle 221, :2, Family Code8

Article 226$ %2. The right of the parents over the fruits and income of the child9s propert" shall be limited primaril" to the child9s support and secondaril" to the collective dail" needs of the famil". Exception: When the parents contract a 2
nd

marriage 7#rticle 0@;8

Art. 584. The provisions of 1o. 4 of the preceding article shall not appl" to the donor who has reserved the usufruct of the propert" donated% or to the parents who are usufructuaries of their children9s propert"% e,cept when the parents contract a second marriage. e. 4n case o caucion #uratoria 7#rticle 0@?8 Art. 587. +f the usufructuar" who has not given securit" claims% b" virtue of a promise under oath% the deliver" of the furniture necessar" for his use% and that he and his famil" be allowed to live in a house included in the usufruct% the court ma" grant this petition% after due consideration of the facts of the case. The same rule shall be observed with respect to implements% tools and other movable propert" necessar" for an industr" or vocation in which he is engaged. +f the owner does not wish that certain articles be sold because of their artistic worth or because the" have a sentimental value% he ma" demand their deliver" to him upon his giving securit" for the pa"ment of the legal interest on their appraised value. ;aucion #uratoria re ers to the case contemplated by #rt. 0@? whereby the usu ructuary, being unable to ile the re*uired bond or security, iles a veri ied petition in the proper court, as(ing or the delivery o the house and urniture necessary or himsel and his amily without any bond or security. The same rule shall also be applied to the instruments or tools necessary or an industry or vocation in which the usu ructuary is engaged.

3. Due care 7#rticles 0@A, 11.8 Art. 589. The usufructuar" shall take care of the things given in usufruct as a good father of a famil". Art. 610. A usufruct is not e,tinguished b" bad use of the thing in usufruct2 but if the abuse should cause considerable injur" to the owner% the latter ma" demand that the thing be delivered to him% binding himself to pa" annuall" to the usufructuar" the net proceeds of the same% after deducting the e,penses and the compensation which ma" be allowed him for its administration.

Ta(e care o the things in usu ruct as a good ather o a amily. 9ad use o the thing in usu ruct shall not e$tinguish the usu ruct. Fowever, i the abuse should cause considerable in&ury to the owner, the owner may demand that the thing be delivered to him. 4 the thing is delivered to the owner, the owner shall deliver to the usu ructuary the net proceeds.

;. Answer for damages caused b" his substitutes fault or negligence 7#rticle 0A.8 Art. 590. A usufructuar" who alienates or leases his right of usufruct shall answer for an" damage which the things in usufruct ma" suffer through the fault or negligence of the person who substitutes him. 4 the usu ructuary alienates or leases his right o usu ruct, in case the things in usu ruct should su er damage by the ault or negligence o the usu#ructuarys substitute, the usu#ructuary is liable.

0. =sufruct over livestock 7#rticle 0A18 Art. 591. +f the usufruct be constituted on a flock or herd of livestock% the usufructuar" shall be obliged to replace with the "oung thereof the animals that die each "ear from natural causes% or are lost due to the rapacit" of beasts of pre". +f the animals on which the usufruct is constituted should all perish% without the fault of the usufructuar"% on account of some contagious disease or an" other uncommon event% the usufructuar" shall fulfill his obligation b" delivering to the owner the remains which ma" have been saved from the misfortune. >hould the herd or flock perish in part% also b" accident and without the fault of the usufructuar"% the usufruct shall continue on the part saved. >hould the usufruct be on sterile animals% it shall be considered% with respect to its effects% as though constituted on fungible things. 4 the usu ruct be over livestoc(, the usu ructuary is obligated to replace with the young, the animals that die each year rom natural causes or lost due to the rapacity o beasts. 4 the animals on which the usu ruct is constituted should all perish, without the ault o the usu ructuary, on account o some contagious disease or any other uncommon event, the usu ructuary shall ul ill his obligation by delivering to the owner the remains which may have been saved.

1. :ake ordinar" repairs 7#rticle 0A28 Art. 592. The usufructuar" is obliged to make the ordinar" repairs needed b" the thing given in usufruct.

F" ordinar" repairs are understood such as are re-uired b" the wear and tear due to the natural use of the thing and are indispensable for its preservation. >hould the usufructuar" fail to make them after demand b" the owner% the latter ma" make them at the e,pense of the usufructuar". The usu ructuary is obligated to ma(e ordinary repairs. -rdinary repairs mean those repairs which arise out o the normal wear and tear o use. 4 the usu ructuary does not ma(e ordinary repairs, the owner may ma(e ordinary repairs at the e$pense o the usu ructuary.

?. To notif" the owner of urgent repairs 7#rticle 0A38 Art. 593. 8,traordinar" repairs shall be at the e,pense of the owner. The usufructuar" is obliged to notif" the owner when the need for such repairs is urgent. The usu ructuary is obligated to noti y the owner when the need or such repairs is urgent.

@. To pa" interest on the amount e,pended for e,traordinar" repairs 7#rticle 0A;8 Art. 594. +f the owner should make the e,traordinar" repairs% he shall have a right to demand of the usufructuar" the legal interest on the amount e,pended for the time that the usufruct lasts. >hould he not make them when the" are indispensable for the preservation of the thing% the usufructuar" ma" make them2 but he shall have a right to demand of the owner% at the termination of the usufruct% the increase in value which the immovable ma" have ac-uired b" reason of the repairs. 4 the owner should ma(e e$traordinary repairs, the usu ructuary is liable to pay legal interest on the amount e$pended until the e$piration o the usu ruct.

A. Allow work b" owner which does not prejudice the usufructuar" 7#rticle 0A08 Art. 595. The owner ma" construct an" works and make an" improvements of which the immovable in usufruct is susceptible% or make new plantings thereon if it be rural% provided that such acts do not cause a diminution in the value of the usufruct or prejudice the right of the usufructuar". The owner may construct wor(s and improvements provided that such acts do not cause a diminution o the value o the usu ruct or pre&udice the right o the usu ructuary.

1..

Pa" annual charges 7#rticles 0A1/0A?8 Art. 596. The pa"ment of annual charges and ta,es and of those considered as a lien on the fruits% shall be at the e,pense of the usufructuar" for all the time that the usufruct lasts. Art. 597. The ta,es which% during the usufruct% ma" be imposed directl" on the capital% shall be at the e,pense of the owner. +f the latter has paid them% the usufructuar" shall pa" him the proper interest on the sums which ma" have been paid in that character2 and% if the said sums have been advanced b" the usufructuar"% he shall recover the amount thereof at the termination of the usufruct. #nnual charges and ta$es imposed on the ruits are shouldered by the usu ructuary. 5and ta$es on the usu ruct are shouldered by the owner.
rd

11. To notif" the owner of an" act of a 6

person 7#rticle 1.18

Art. 601. The usufructuar" shall be obliged to notif" the owner of an" act of a third person% of which he ma" have knowledge% that ma" be prejudicial to the rights of ownership% and he shall be liable should he not do so% for damages% as if the" had been caused through his own fault. 12. 4 the usu ructuary does not noti y the owner o the any pre&udicial act by a rd 3 person, the usu ructuary shall be liable or damages. >houlder the e,penses% costs% and liabilities in suits involving the usufruct 7#rticle 1.28 Art. 602. The e,penses% costs and liabilities in suits brought with regard to the usufruct shall be borne b" the usufructuar". 13. )eturn the thing at the termination of the usufruct 7#rticle 1128 Art. 612. =pon the termination of the usufruct% the thing in usufruct shall be delivered to the owner% without prejudice to the right of retention pertaining to the usufructuar" or his heirs for ta,es and e,traordinar" e,penses which should be reimbursed. After the deliver" has been made% the securit" or mortgage shall be cancelled. 4 in case the usu ructuary or his heirs should be reimbursed, there would be a right o retention by the usu ructuary or the heirs. # ter delivery o the thing, the security shall be cancelled.

F. ,$tinguishment o the Usu ruct 1. F" death of the usufructuar" 7#rticle 1.3 7188 ,$ceptions a. Contrary intention b. 'e inite period c. When the usu ruct is in avor o several persons i. +uccessively or ii. +imultaneously 2. F" the e,piration of the period for which it was constituted or b" the fulfillment of an" resolutor" condition 7#rticle 1.3 7288 3. F" merger of the usufruct and ownership in the same person 7#rticle 1.3 7388 ;. F" renunciation of the usufructuar" 7#rticle 1.3 7;88 0. F" the total loss of the thing in usufruct 7#rticle 1.3 7088 1. F" the termination of the right of the person constituting the usufruct 7#rticle 1.3 7188 ?. F" prescription 7#rticle 1.3 7?88 @. !on/ ul illment o a mode imposed on the usu ructuary A. )escission or annulment o the contract 1.. 5egal ways o e$tinguishing usu ruct 7i.e. termination o parental authority terminates the parents usu#ruct with regard to the childs adventitious property8 >utual dissent #lienation by innocent purchaser or value 7#rticle ?.A 8 Fappening o a resolutory condition

11. 12. 13.

<. 8A>8:81T> $n easement is a real right constituted in anothers tenement whereby the owner o the latter must re rain rom doing or allow something to be done on his property or the bene it o another thing or person. The term is 2easement is a common /law term. +ervitude is the civil law term. # servitude is broader in scope. For e$ample, an easement does not include the right to draw water. Fowever at present, both terms are interchangeable. #n easement grants less rights than a usu ruct. #n easement never carries with it the right to possess. The rights granted by an easement are very limited.

Art. 102. The titles o ownership, or o other rights over immovable property, which are not duly inscribed or annotated in the )egistry o =roperty shall not pre&udice third persons.

A. *"aracteristics 1. #lways a real right Fasic )ule* There can be !- easement on personal property. 4t cannot be imposed on your property. 2. Can only be imposed only on the property o another 3. =roduces limitations on ownership but the ownership is not impaired ;. 4nseparable rom the tenements rom which it is passively or actively attached 7#rticle 11?8 Art. 617. 8asements are inseparable from the estate to which the" activel" or passivel" belong. 0. 4ndivisible F. ?in+s o. Ease ents

1. As to Fenefit a. Real 7#rticle 1138 Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate2 that which is subject thereto% the servient estate. # real easement is one in avor o another immovable the dominant estate. This is more common than the personal easement.

b. &ersonal # personal easement is in avor o a community, or o one or more persons to whom the encumbered estate does not belong 7 i.e. easement or drawing water8.

2. As to :anner of 8,ercise 7#rticle 1108 Art. 615. 8asements ma" be continuous or discontinuous% apparent or nonapparent. Continuous easements are those the use of which is or ma" be incessant% without the intervention of an" act of man. Discontinuous easements are those which are used at intervals and depend upon the acts of man. Apparent easements are those which are made known and are continuall" kept in view b" e,ternal signs that reveal the use and enjo"ment of the same.

1onapparent easements are those which show no e,ternal indication of their e,istence. a. *ontinuous Continuous easements are those the use o which is or may be incessant, without the intervention o any act o man. 'iscontinuous easements are those which are used at intervals and depend upon the acts o man 7i.e. right o way8

b. Discontinuous

3. As to +ndication of 8,istence 7#rticle 1108 a. Apparent #pparent easements are those which are made (nown and are continually (ept in view by e$ternal signs that reveal the use and en&oyment o the same. For e$ample, a right o way is apparent i the path is mar(ed o . !on/apparent easements are those which show no e$ternal indication o their e$istence. For e$ample, a right o way is non/apparent i the path is not mar(ed.

b. #on<apparent

;. As to 1ature of the !imitation 7#rticle 1118 Art. 616. 8asements are also positive or negative. A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself% and a negative easement% that which prohibits the owner of the servient estate from doing something which he could lawfull" do if the easement did not e,ist. a. &ositi(e =ositive easements are those which impose upon the owner o the servient estate the obligation o allowing something to be done or o doing it himsel . In patiendo 7#rticle 1@., 1 part8 #llowing something to be done
nd st

i.

ii. In "aciendo 7#rticle 1@., 2 'oing it yoursel b. #e/ati(e

part8

!egative easements are those which prohibit the owner o the servient estate rom doing something which he could law ully do i the easement did not e$ist. 4n allowing someone to do something in your estate, you are prohibited rom preventing that person rom doing that something.

,.7E: +ome commentators believe that all easements are negative. ,asements are restrict the owners rom doing something which they could

otherwise do. What appear to be positive easements are in act really negative easements. 1. As to >ource a. @oluntar! 7#rticle 11A8 Art. 619. 8asements are established either b" law or b" the will of the owners. The former are called legal and the latter voluntar" easements. ,stablished by the will o the owners 4n ,ort$ ,egros +ugar ;entral vs. 3idalgo, !orth !egros +ugar Central 7!!+C8 constructed across its properties a road connecting the mill site with the provincial highway. !!+C made the road accessible to the public, a toll ee being charged in cases o motor vehicles, B pedestrians being allowed ree passage. # tuba saloon was in the ad&oining hacienda. The owner p the saloon passed through the connecting road as it was his only means o access. !!+C sought to en&oin the owner o the tuba saloon rom using the road in *uestion since NN7*s workers got drun(. There are 2 very persuasive views in the case o ,,+; vs. 3idalgo. The ma&ority said that !!+C voluntarily constituted an easement o way in avor o the general public. !!+C could not discriminate against certain persons who may want to use the road. This is clearly a case o a servitude voluntarily constituted in avor o the community under #rticle 031. Faving been devoted by !!+C to the use o the public in general, the road is charged wH public interest B while so devoted. !!+C may not establish discriminatory e$ceptions against any private persons. The dissent said that there was no easement by using the process o elimination. # voluntary easement can be created only by will, by a donation or by a contract. 4n this case, there was no will, donation, or contract. ,stablished by law # mi$ed easement can be ac*uired through prescription

b. :e/al 7#rticle 11A8 c. 0ixe+

C. 4 :odes of Ac-uiring 8asements 1. Title Title means the &uridical act which gives rise to the servitude 7i.e. law, donation, contract, will8 #ll (inds o easements can be created by title a. Continuous and apparent easements b. Continuous and non/apparent easements c. 'iscontinuous and apparent easements d. 'iscontinuous and non/apparent easements

,*uivalents o Title a. 'eed o recognition 7#rticle 1238 Art. 623. The absence of a document or proof showing the origin of an easement which cannot be ac-uired b" prescription ma" be cured b" a deed of recognition b" the owner of the servient estate or b" a final judgment. b. Final &udgment 7#rticle 1238 c. #pparent sign 7#rticle 12;8 Art. 624. The e,istence of an apparent sign of easement between two estates% established or maintained b" the owner of both% shall be considered% should either of them be alienated% as a title in order that the easement ma" continue activel" and passivel"% unless% at the time the ownership of the two estates is divided% the contrar" should be provided in the title of conve"ance of either of them% or the sign aforesaid should be removed before the e,ecution of the deed. This provision shall also appl" in case of the division of a thing owned in common b" two or more persons. 4n Amor vs. ?lorentino owned a house and a camarin. The house had 3 windows. From the said windows the house receives light and air rom the lot where the camarin stood. The camarin and the house were disposed o . The windows were not closed. The +C said that an easement o light and view had been established. When ownership passed to theirs, nothing was done to the windows. The new owner o the house continued to e$ercise the right o receiving light and air through those windows. The visible and permanent sign o an easement is the title that characteri3es its e$istence. ,$istence o the apparent sign had the same e ect as a title o ac*uisition o the easement o light and view upon death o original owner. There is an error in #rticle 12; according to =ro essor 9alane. $rticle A-E provides 2The e4istenceL. as title in order that the easement may continueL #ccording to =ro essor 9alane, the use o# the word 2continue is wrong. It should be 2the easement may arise since there is no easement yet. There is no easement yet since both properties have only 1 owner. There are only seeds o a potential easement.

2. Prescription -!5D continuous and apparent easements may be created by prescription. 4n order or an easement to be ac*uired by prescription, good aith or bad aith is irrelevant. The easement can be ac*uired a ter the lapse o 1. years. Counting o the 1. year prescriptive period

a. =ositive easements +tart counting rom the 1 easement was per ormed.
st

act constituting the e$ercise o

the

b. !egative easements +tart counting rom the time when the owner o the dominant estate serves a notarial prohibition on the owner o the prospective servient estate.

,.7E: >ost easements are clearly positive or negative easements. Fowever, an easement o light and view is both a positive and a negative easement. There are special rules to determine the counting o the prescriptive period. a. +tart counting rom the 1 act constituting the e$ercise o the easement was per ormed i the opening through which the light and view passes is a party wall. )ationale6 4 the neighbor does not li(e the opening, he can always close it.
st

b. +tart counting rom the time when the owner o the dominant estate serves a notarial prohibition on the owner o the prospective servient estate i# the opening is made on the dominant owners own wall. )ationale* The neighbor cannot its in the dominant owners property. close the opening since

Art. 625. =pon the establishment of an easement% all the rights necessar" for its use are considered granted. Upon the establishment o an easement, all the rights necessary or its use are considered granted. #n e$ample o this is #rticle 1;1. #n easement or drawing water may carry with it the easement o right o way. 4 the well is in the middle o someone elses property how can one draw water without having to pass through that persons property!

Art. 626. The owner of the dominant estate cannot use the easement e,cept for the benefit of the immovable originall" contemplated. 1either can he e,ercise the easement in an" other manner than that previousl" established. #rticle 121 is a classic case o an intent that ailed. #rticle 121 was meant to overrule the ruling in >alderrama vs. ,ort$ ,egros +ugar ;o. 4n >alderrama vs. ,ort$ ,egros +ugar ;o.! Oalderrama e$ecuted a contract with !orth !egros 7!!+C8 whereby !!+C agreed to install a sugar central o minimum capacity o 3.. tons or grinding and milling al sugar cane grown by Oalderrama who in turn bound himsel to urnish the central all the cane they might produce. $ railroad was constructed on Malderramas land to transport the sugarcane harvested. Fowever, Oalderrama was unable to supply the re*uired amount o sugarcane. !!+C had to contract with other sugarcane growers. Oalderrama alleges that the easement granted in avor o !orth !egros was only or the transportation o the sugarcane o Oalderrama. The

+C said that the easement was created to enable !!+C to build and maintain a railroad or transportation o sugar cane. To limit use e$clusively to the cane o the hacienda owners would ma(e the contract ine ective. Furthermore, it is against the nature o the easement to pretend that it was established in avor o the servient estates. The easement was created in avor o the corporation and not or the hacienda owners. The corporation may allow its wagons to pass by the trac(s as many times as it may deem it. The solution to the problem in >alderrama vs. ,,+; would be to stipulate in the contract that a violation o the any o the conditions would terminate the easement.

Art. 627. The owner of the dominant estate ma" make% at his own e,pense% on the servient state an" works necessar" for the use and preservation of the servitude% but without altering it or rendering it more burdensome. ?or this purpose he shall notif" the owner of the servient estate% and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate. #t his own e$pense, the owner o the dominant estate may ma(e any wor(s on the servient estate which are necessary or the use and preservation o the servitude. +uch wor(s cannot alter or ma(e the servitude more burdensome. The owner o the dominant estate must noti y the owner o the servient estate. The owner o the dominant estate must choose the most convenient time and manner so as to cause the least inconvenience to the owner o the servient estate.

Art. 628. >hould there be several dominant estates% the owners of all of them shall be obliged to contribute to the e,penses referred to in the preceding article% in proportion to the benefits which each ma" derive from the work. An" one who does not wish to contribute ma" e,empt himself b" renouncing the easement for the benefit of the others. +f the owner of the servient estate should make use of the easement in an" manner whatsoever% he shall also be obliged to contribute to the e,penses in the proportion stated% saving an agreement to the contrar". 4 there are several dominant estates with a common servitude, the e$penses or its use and preservation shall be shouldered by the owners o the dominant estates in proportion to the bene it that they receive. 4n the absence o proo to the contrary, the presumption is that the bene its are e*ual. 4 the owner o the servient estate also ma(es use o the servitude, he must also contribute in proportion to the bene it he receives.

D. Extin/uis"

ent o. Ease

ents

1. F" merger of ownership of the dominant and servient estates The merger must be complete, absolute and permanent. 4 the owner o the servient estate becomes a co/owner o the dominant estate, the easement subsists since the merger is not complete. 4 the sale is a pacto de retro sale, then the merger is not complete. The easement is only suspended

2. 8,tinctive prescription #ll the dominant owner o continuously. the estate has to do is to stop using it

4n the case o legal easements, the right to claim is never e$tinguished. #ll the dominant owner o the estate has to do is to claim it.

3. /hen either or both of the estates fall into such condition that the easement cannot be used. 7owever% it shall be revived if the subse-uent condition of either or both of the estates should permit its use. This is however subject to e,tinctive prescription This is not a ground or e$tinguishments. This is a ground or suspension o the easement. The suspension may eventually lead to e$tinguishment o the easement i there is e$tinctive prescription.

;. 8,piration of the term of the fulfillment of the condition 0. )enunciation of the owner of the dominant estate There is dispute as to whether or not the renunciation can be tacit or not. #ccording to =ro essor 9alane, it can be tacit under #rticle 1 o the Civil Code. )ights may be waived. There is no prescribed orm.

1. Fu" off the easement ?. 8,propriation of the servient estate There can be no easement over property o the public dominion. @. Permanent impossibilit" to make use of the easement A. Annulment or cancellation of the contract of easement 1.. )esolution of grantors right to create the easement # sells land to 9 via a pacto de retro sale. 9 while being a vendee de retro grants an easement to C. 4 #, the vendor, redeems, the easement given to C is e$tinguished. )egistration of the servient estate as free and without an" encumbrance in the Torrens >"stem in favor of an innocent purchaser for value Cessation of necessit"% in case of a legal easement of right of wa" 7#rticle 100 8

11.

12.

Art. '%%. 4 the right o way granted to a surrounded estate ceases to be necessary because its owner has &oined it to another abutting on a public road, the owner o the servient estate may demand that the easement be e$tinguished, returning what he may have received by way o

8. !egal 8asements 7=roper8 1. /aters The Water Code 7#rticles 31/028 amends many o the easements. #rticles 02 and 1.. o the Water Code are the repealing clauses #rticle 13? 7natural drainage o lands8 has been superseded by #rticle 0. o the Water Code. Art. 637. !ower estates are obliged to receive the waters which naturall" and without the intervention of man descend from the higher estates% as well as the stones or earth which the" carr" with them. The owner of the lower estate cannot construct works which will impede this easement2 neither can the owner of the higher estate make works which will increase the burden. Art. 50$ 9ater *o+e. !ower estates are obliged to receive the waters which naturall" and without the intervention of man flow from the higher estate% as well as the stone or earth which the" carr" with them. The owner of the lower estate can not construct works which will impede this natural flow% unless he provides an alternative method of drainage2 neither can the owner of the higher estate make works which will increase this natural flow. #rticle 13@ 7tow path8 has been superseded by #rticle 01 o the Water Code. Art. 638. The banks of rivers and streams% even in case the" are of private ownership% are subject throughout their entire
indemnity. The interest on the indemnity shall be deemed to be in payment o rent or the use o the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate. 4n both cases, the public highway must substantially meet the needs o the dominant estate in order that the easement may be e$tinguished.

Art. %&. The establishment, e$tent, orm, and conditions o easements o water not e$pressly determined by the provisions o this Code shall be governed by the provisions o the Civil Code. a. Art. *00. The ollowing laws, parts andHor provisions o laws are hereby repealed6 The provisions o the +panish 5aw on Waters o #ugust 3, 1@11, the Civil Code o +pain o 1@@A and the Civil Code o the =hilippines 7).#. 3@18 on ownership o waters, easements relating to waters, use o public waters and ac*uisitive prescription on the use o waters, which are inconsistent with the provisions o this Code" The provisions o ).#. 13A0, otherwise (nown as the )evised Charter o !ational =ower Corporation, particularly section 3, paragraph 7 8, and section 12, inso ar as they relate to the appropriation o waters and the grant thereo " The provisions o #ct !o. 2102, as amended, otherwise (nown as the 4rrigation #ct, section 3, paragraphs 7(8 and 7m8 o =.'. !o. @13, ).#. 2.01" +ection A., C.#. 13?" and, #ll 'ecree, 5aws, #cts, parts o #cts, rules o Court, e$ecutive orders, and administrative

b.

c. d.

regulations which are contrary to or inconsistent with the provisions o this Code.

length and within a $one of three meters along their margins% to the easement of public use in the general interest of navigation% floatage% fishing and salvage. 8states adjoining the banks of navigable or floatable rivers are% furthermore% subject to the easement of towpath for the e,clusive service of river navigation and floatage. +f it be necessar" for such purpose to occup" lands of private ownership% the proper indemnit" shall first be paid. Art. 51$ 9ater *o+e. The banks of rivers and streams and the shores of the seas and lakes throughout their entire length and within a $one of three 365 meters in urban areas% twent" 34D5 meters in agricultural areas and fort" 3;D5 meters in forest areas% along their margins are subject to the easement of public use in the interest of recreation% navigation% floatage% fishing and salvage. 1o person shall be allowed to sta" in this $one longer than what is necessar" for recreation% navigation% floatage% fishing or salvage or to build structures of an" kind. #rticle 13A 7easement o dam8 has been superseded by #rticles 3@ and 3A o the Water Code. Art. 639. /henever for the diversion or taking of water from a river or brook% or for the use of an" other continuous or discontinuous stream% it should be necessar" to build a dam% and the person who is to construct it is not the owner of the banks% or lands which must support it% he ma" establish the easement of abutment of a dam% after pa"ment of the proper indemnit". Art. 38$ 9ater *o+e. Authorit" for the construction of dams% bridges and other structures across of which ma" interfere with the flow of navigable or flotable waterwa"s shall first be secured from the Department of Public /orks% Transportation and Communications. Art. 39$ 9ater *o+e. 8,cept in cases of emergenc" to save life or propert"% the construction or repair of the following works shall be undertaken onl" after the plans and specifications therefor% as ma" be re-uired b" the Council% are approved b" the proper government agenc"2 dams for the diversion or storage of water2 structures for the use of water power% installations for the utili$ation of subterranean or ground water and other structures for utili$ation of water resources. #rticles 1;./1;1 are the provisions regarding easement waters. or drawing o

Art. 640. Compulsor" easements for drawing water or for watering animals can be imposed onl" for reasons of public use in favor of a town or village% after pa"ment of the proper indemnit".

Art. 641. 8asements for drawing water and for watering animals carr" with them the obligation of the owners of the servient estates to allow passage to persons and animals to the place where such easements are to be used% and the indemnit" shall include this service. #rticles 1;2/1;1 are the provisions or the easement o a*ueduct. This should be correlated with #rticle ;A o the Water Code. Art. 642. An" person who ma" wish to use upon his own estate an" water of which he can dispose shall have the right to make it flow through the intervening estates% with the obligation to indemnif" their owners% as well as the owners of the lower estates upon which the waters ma" filter or descend. Art. 643. #ne desiring to make use of the right granted in the preceding article is obliged* 3'5 To prove that he can dispose of the water and that it is sufficient for the use for which it is intended2 345 To show that the proposed right of wa" is the most convenient and the least onerous to third persons2 365 To indemnif" the owner of the servient estate in the manner determined b" the laws and regulations. Art. 644. The easement of a-ueduct for private interest cannot be imposed on buildings% court"ards% anne,es% or outhouses% or on orchards or gardens alread" e,isting. Art. 645. The easement of a-ueduct does not prevent the owner of the servient estate from closing or fencing it% or from building over the a-ueduct in such manner as not to cause the latter an" damage% or render necessar" repairs and cleanings impossible. Art. 646. ?or legal purposes% the easement of a-ueduct shall be considered as continuous and apparent% even though the flow of the water ma" not be continuous% or its use depends upon the needs of the dominant estate% or upon a schedule of alternate da"s or hours. #rticle 1;? is the easement or the construction o stop loc( and sluice gate. Art. 647. #ne who for the purpose of irrigating or improving his estate% has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken% ma" demand that the owners of the banks permit its construction% after pa"ment of damages% including those caused b" the new easement to such owners and to the other irrigators.

#rticle 20 o the Water Code is the easement or appropriation and use o waters. Art. 25$ 9ater *o+e. A holder of water permit ma" demand the establishment of easements necessar" for the construction and maintenance of the works and facilities needed for the beneficial use of the waters to be appropriated subject to the re-uirements of just compensation and to the following conditions* a. That he is the owner% lessee% mortgagee or one having real right over the land upon which he proposes to use water2 and b. That the proposed easement is the most convenient and the least onerous to the servient estate. 8asements relating to the appropriation and use of waters ma" be modified b" agreement of the contracting parties provided the same is not contrar" to law or prejudicial to third persons.

2. )ight of wa" 7#rticles 1;A/10?8 Art. 649. The owner% or an" person who b" virtue of a real right ma" cultivate or use an" immovable% which is surrounded b" other immovables pertaining to other persons and without ade-uate outlet to a public highwa"% is entitled to demand a right of wa" through the neighboring estates% after pa"ment of the proper indemnit". >hould this easement be established in such a manner that its use ma" be continuous for all the needs of the dominant estate% establishing a permanent passage% the indemnit" shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. +n case the right of wa" is limited to the necessar" passage for the cultivation of the estate surrounded b" others and for the gathering of its crops through the servient estate without a permanent wa"% the indemnit" shall consist in the pa"ment of the damage caused b" such encumbrance. This easement is not compulsor" if immovable is due to the proprietor9s own acts. the isolation of the

Art. 650. The easement of right of wa" shall be established at the point least prejudicial to the servient estate% and% insofar as consistent with this rule% where the distance from the dominant estate to a public highwa" ma" be the shortest. Art. 651. The width of the easement of right of wa" shall be that which is sufficient for the needs of the dominant estate% and ma" accordingl" be changed from time to time. Art. 652. /henever a piece of land ac-uired b" sale% e,change or partition% is surrounded b" other estates of the vendor% e,changer% or co.owner% he shall be obliged to grant a right of wa" without indemnit".

+n case of a simple donation% the donor shall be indemnified b" the donee for the establishment of the right of wa". Art. 653. +n the case of the preceding article% if it is the land of the grantor that becomes isolated% he ma" demand a right of wa" after pa"ing a indemnit". 7owever% the donor shall not be liable for indemnit". Art. 654. +f the right of wa" is permanent% the necessar" repairs shall be made b" the owner of the dominant estate. A proportionate share of the ta,es shall be reimbursed b" said owner to the proprietor of the servient estate. Art. 655. +f the right of wa" granted to a surrounded estate ceases to be necessar" because its owner has joined it to another abutting on a public road% the owner of the servient estate ma" demand that the easement be e,tinguished% returning what he ma" have received b" wa" of indemnit". The interest on the indemnit" shall be deemed to be in pa"ment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate. +n both cases% the public highwa" must substantiall" meet the needs of the dominant estate in order that the easement ma" be e,tinguished. Art. 656. +f it be indispensable for the construction% repair% improvement% alteration or beautification of a building% to carr" materials through the estate of another% or to raise therein scaffolding or other objects necessar" for the work% the owner of such estate shall be obliged to permit the act% after receiving pa"ment of the proper indemnit" for the damage caused him. Art. 657. 8asements of the right of wa" for the passage of livestock known as animal path% animal trail or an" other% and those for watering places% resting places and animal folds% shall be governed b" the ordinances and regulations relating thereto% and% in the absence thereof% b" the usages and customs of the place. /ithout prejudice to rights legall" ac-uired% the animal path shall not e,ceed in an" case the width of A( meters% and the animal trail that of 6A meters and (D centimeters. /henever it is necessar" to establish a compulsor" easement of the right of wa" or for a watering place for animals% the provisions of this >ection and those of articles @;D and @;' shall be observed. +n this case the width shall not e,ceed 'D meters. )e*uisites or an ,asement o )ight o Way a. The dominant estate is surrounded by other immovables without an ade*uate outlet to a public highway The right o way may be demanded6 i. When there is absolutely no access to a public highway

ii. When, even i there is one, it is di icult or dangerous to use, or is grossly insu icient 7i.e. access is through a steep cli 8 >ere inconvenience is not aground or demanding the easement o right o way 7i.e. there is an ade*uate outlet, but it is not paved8 4 the right o way is permanent, payment shall be e*uivalent to the value o the land occupied and the amount o the damage caused to the servient estate. +uch payment or permanent use does not mean that the owner o the dominant estate now owns such portion o the land. 4 a piece o land is ac*uired by sale, e$change, partition or partition, and the land is surrounded by other estates o the vendor, e$changer or co/owner, a right o way shall be given without having to pay the indemnity 7#rticle 1028 4 it is the land o the vendor, e$changer or co/owner that becomes isolated, he may demand a right o way, provided that he pay the proper indemnity 7#rticle 1038 4 a piece o land is ac*uired by donation, and such land is surrounded by other estates o the donor, the donee must pay the proper indemnity in order to get a right o way 7#rticle 1028. 4 it is the land o the donor that becomes isolated, he may demand a right o way without having to pay the indemnity 7#rticle 1038.

b. The dominant estate is willing to pay the proper indemnity

c. The isolation was not due to the acts o the proprietor o the dominant estate 4n #rticle 1;A, it states that the isolation must not be due to the act o the proprietor o the dominant estate. Det, in #rticle 103, the proprietor o the dominant estate may demand an easement o right o way even though the isolation was caused by his act. 4s there a con lict between #rticle 1;A and #rticle 103% To reconcile, #rticle 103 deals with a speci ic instance.

d. That the right o way claimed is at the point least pre&udicial to the servient estate" and inso ar as consistent with this rule, where the distance rom the dominant estate to a public highway may be the shortest. ,$tinguishment o ,asements o )ight o Way 7#rticle 1008 The act that an ade*uate outlet has been created does not automatically e$tinguish the a legal easement o right o way. 4t must be as(ed or by the owner o the servient estate. The owner o the dominant estate cannot demand that the easement be e$tinguished. #rticle 100 is applicable only to legal easements o right o way. does not apply to voluntary easements o right o way. 4t

3. Part" wall 7#rticles 10@/1118 Art. 658. The easement of part" wall shall be governed b" the provisions of this Title% b" the local ordinances and customs insofar as the" do not conflict with the same% and b" the rules of co.ownership. Art. 659. The e,istence of an easement of part" wall is presumed% unless there is a title% or e,terior sign% or proof to the contrar"* 3'5 +n dividing walls of adjoining buildings up to the point of common elevation2 345 +n dividing walls of gardens or "ards situated in cities% towns% or in rural communities2 365 +n fences% walls and live hedges dividing rural lands. Art. 660. +t is understood that there is an e,terior sign% contrar" to the easement of part" wall* 3'5 /henever in the dividing wall of buildings there is a window or opening2 345 /henever the dividing wall is% on one side% straight and plumb on all its facement% and on the other% it has similar conditions on the upper part% but the lower part slants or projects outward2 365 /henever the entire wall is built within the boundaries of one of the estates2 3;5 /henever the dividing wall bears the burden of the binding beams% floors and roof frame of one of the buildings% but not those of the others2

3(5 /henever the dividing wall between court"ards% gardens% and tenements is constructed in such a wa" that the coping sheds the water upon onl" one of the estates2 3@5 /henever the dividing wall% being built of masonr"% has stepping stones% which at certain intervals project from the surface on one side onl"% but not on the other2 3A5 /henever lands inclosed b" fences or live hedges adjoin others which are not inclosed. +n all these cases% the ownership of the walls% fences or hedges shall be deemed to belong e,clusivel" to the owner of the propert" or tenement which has in its favor the presumption based on an" one of these signs. Art. 661. Ditches or drains opened between two estates are also presumed as common to both% if there is no title or sign showing the contrar". There is a sign contrar" to the part.ownership whenever the earth or dirt removed to open the ditch or to clean it is onl" on one side thereof% in which case the ownership of the ditch shall belong

e,clusivel" to the owner of the land having this e,terior sign in its favor. Art. 662. The cost of repairs and construction of part" walls and the maintenance of fences% live hedges% ditches% and drains owned in common% shall be borne b" all the owners of the lands or tenements having the part" wall in their favor% in proportion to the right of each. 1evertheless% an" owner ma" e,empt himself from contributing to this charge b" renouncing his part.ownership% e,cept when the part" wall supports a building belonging to him. Art. 663. +f the owner of a building% supported b" a part" wall desires to demolish the building% he ma" also renounce his part. ownership of the wall% but the cost of all repairs and work necessar" to prevent an" damage which the demolition ma" cause to the part" wall% on this occasion onl"% shall be borne b" him. Art. 664. 8ver" owner ma" increase the height of the part" wall% doing at his own e,pense and pa"ing for an" damage which ma" be caused b" the work% even though such damage be temporar". The e,penses of maintaining the wall in the part newl" raised or deepened at its foundation shall also be paid for b" him2 and% in addition% the indemnit" for the increased e,penses which ma" be necessar" for the preservation of the part" wall b" reason of the greater height or depth which has been given it. +f the part" wall cannot bear the increased height% the owner desiring to raise it shall be obliged to reconstruct it at his own e,pense and% if for this purpose it be necessar" to make it thicker% he shall give the space re-uired from his own land. Art. 665. The other owners who have not contributed in giving increased height% depth or thickness to the wall ma"% nevertheless% ac-uire the right of part.ownership therein% b" pa"ing proportionall" the value of the work at the time of the ac-uisition and of the land used for its increased thickness. Art. 666. 8ver" part.owner of a part" wall ma" use it in proportion to the right he ma" have in the co.ownership% without interfering with the common and respective uses b" the other co. owners. # party wall is a common wall built along the dividing line o 2 ad&oining estates. !ature o a =arty Wall a. ,asement >anresa and Castan believe that a party wall is predominantly an easement.

b. Co/ownership 7i.e. #rticle 1118 +anche3 )oman believes that a party wall is predominantly a co/ ownership +pecial Characteristics o a =arty Wall as Co/-wnership i. This co/ownership is indivisible Cannot physically divide

ii. The parts pertaining to each co/owner can be materially designated and yet the whole wall is co/owned iii. The rights o a co/owner o a party wall are greater than an ordinary co/owner >aintenance and )epair o =arty Wall 7#rticle 1128 General )ule* The e$pense or the repair and maintenance o the party wall shall be shouldered by the co/owners in proportion to the right o each. Presumption* Co/owners have e*ual proportion 7share e*ually in the e$penses8. Exceptions: a. The e$pense or the repair o the party wall can be shouldered by 1 co/owner, but the co/owner who does not contribute must renounce his share in the party wall. Commentators are o di erent opinions regarding the e$tent o the renunciation total or proportional to the amount o repairs.

b. When the de ects are caused by 1 owner, he shall pay or all the e$penses or repair 4 the damage was due to the ault o one owner =resumption o =arty Wall # party wall is presumed when a wall divides a. #d&oining buildings b. 2ardens or yards situated in cities, towns or in rural communities c. )ural lands This presumption may be rebutted i there is a contrary a. Title" or b. ,$terior sign or The ollowing are e$terior signs which will be rebut the presumption i. # window or opening in the dividing wall # buttress is placed part where the wall &uts out. This is done in order to prevent the neighbor rom invading his property. ii. -n 1 side, the wall is straight and then the wall &uts out

iii. The entire wall is built within the boundary o estates 7not along the boundary o the 2 estates8

1 o

the

iv. When the wall supports the building o 1 estate but not the other v. When the dividing wall between the courtyards, gardens, and tenements is constructed in such a way that the coping sheds the water upon only 1 o the estates vi. +tepping stones only on 1 side o the wall vii. When 1 estate is enclosed but the other is not Commentators do not agree as to whether or not this enumeration is e$clusive.

c. =roo ;. !ight and view 7#rticles 11?/1?38 Art. 667. 1o part.owner ma"% without the consent of the others% open through the part" wall an" window or aperture of an" kind. Art. 668. The period of prescription for the ac-uisition of an easement of light and view shall be counted* 3'5 ?rom the time of the opening of the window% if it is through a part" wall2 or 345 ?rom the time of the formal prohibition upon the proprietor of the adjoining land or tenement% if the window is through a wall on the dominant estate. Art. 669. /hen the distances in article @AD are not observed% the owner of a wall which is not part" wall% adjoining a tenement or piece of land belonging to another% can make in it openings to admit light at the height of the ceiling joints or immediatel" under the ceiling% and of the si$e of thirt" centimeters s-uare% and% in ever" case% with an iron grating imbedded in the wall and with a wire screen. 1evertheless% the owner of the tenement or propert" adjoining the wall in which the openings are made can close them should he ac-uire part.ownership thereof% if there be no stipulation to the contrar". 7e can also obstruct them b" constructing a building on his land or b" raising a wall thereon contiguous to that having such openings% unless an easement of light has been ac-uired. Art. 670. 1o windows% apertures% balconies% or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made% without leaving a distance of two meters between the wall in which the" are made and such contiguous propert".

1either can side or obli-ue views upon or towards such conterminous propert" be had% unless there be a distance of si,t" centimeters. The nonobservance of these distances does not give rise to prescription. Art. 671. The distance referred to in the preceding article shall be measured in cases of direct views from the outer line of the wall when the openings do not project% from the outer line of the latter when the" do% and in cases of obli-ue view from the dividing line between the two properties. Art. 672. The provisions of article @AD are not applicable to buildings separated b" a public wa" or alle"% which is not less than three meters wide% subject to special regulations and local ordinances. Art. 673. /henever b" an" title a right has been ac-uired to have direct views% balconies or belvederes overlooking an adjoining propert"% the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in article @A'. An" stipulation permitting distances less than those prescribed in article @AD is void. 2 'i erent ,asements 1. ,asement o light 7luminis) The easement o light is the right to ma(e an opening not greater than /( centimeters s8uare and to receive light #rom anothers tenement. The opening must be made on the ceiling or i on the wall, there must be an iron grating ?so you cant look out, otherwise, it becomes an easement o light and view8. !o minimum distance re*uired. The easement o light and view is the right to open windows and apertures and to bar the owner o the servient estate to bloc( the view. The easement o view necessarily carries with it the easement o light. 'irect Oiew6 There must be a minimum distance o 2 meters rom the wall o the opening and the contiguous property. -bli*ue Oiew6 There must be a minimum distance o 1. centimeters rom the wall o the opening and the contiguous property. !on/observance o easement. the minimum distances will not create an

2. ,asement o light and view 7luminis et prospectus8

The owner o the servient estate cannot build within 3 meters rom the boundary between the servient and the dominant estate. Thus,

there is 0 meters between the wall o the opening and any structure o the servient estate. The obligation not to build higher accompanies the easements o light and view.
st

#c*uiring by =rescription a. +tart counting rom the 1 act constituting the e$ercise o the easement was per ormed i the opening through which the light and view passes is a party wall. )ationale* 4 the neighbor does not li(e the opening, he can always close it.

b. +tart counting rom the time when the owner o the dominant estate serves a notarial prohibition on the owner o the prospective servient estate i# the opening is made on the dominant owners own wall. )ationale6 The neighbor cannot close the openi ng since its in the dominant owners property. ents 7!ot +trictly +pea(ing 5egal ,asements8

?. ,t"er 5o<*alle+ :e/al Ease

1. Drainage of buildings 7#rticles 1?;/1?18 Art. 674. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place% and not on the land of his neighbor% even though the adjacent land ma" belong to two or more persons% one of whom is the owner of the roof. 8ven if it should fall on his own land% the owner shall be obliged to collect the water in such a wa" as not to cause damage to the adjacent land or tenement. Art. 675. The owner of a tenement or a piece of land% subject to the easement of receiving water falling from roofs% ma" build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs% and in such a wa" as not to cause an" nuisance or damage whatever to the dominant estate. Art. 676. /henever the "ard or court of a house is surrounded b" other houses% and it is not possible to give an outlet through the house itself to the rain water collected thereon% the establishment of an easement of drainage can be demanded% giving an outlet to the water at the point of the contiguous lands or tenements where its egress ma" be easiest% and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate% after pa"ment of the propert" indemnit". This is not really an easement. ownership. )ather, it is a limitation o the right o

2. +ntermediate distances 7#rticles 1??/1@18 Art. 677. 1o constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions re-uired in special laws% ordinances% and regulations relating thereto. Art. 678. 1o person shall build an" a-ueduct% well% sewer% furnace% forge% chimne"% stable% depositor" of corrosive substances% machiner"% or factor" which b" reason of its nature or products is dangerous or no,ious% without observing the distances prescribed b" the regulations and customs of the place% and without making the necessar" protective works% subject% in regard to the manner thereof% to the conditions prescribed b" such regulations. These prohibitions cannot be altered or renounced b" stipulation on the part of the adjoining proprietors. +n the absence of regulations% such precautions shall be taken as ma" be considered necessar"% in order to avoid an" damage to the neighboring lands or tenements. Art. 679. 1o trees shall be planted near a tenement or piece of land belonging to another e,cept at the distance authori$ed b" the ordinances or customs of the place% and% in the absence thereof% at a distance of at least two meters from the dividing line of the estates if tall trees are planted and at a distance of at least fift" centimeters if shrubs or small trees are planted. 8ver" landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted. The provisions of this article also appl" to trees which have grown spontaneousl". Art. 680. +f the branches of an" tree should e,tend over a neighboring estate% tenement% garden or "ard% the owner of the latter shall have the right to demand that the" be cut off insofar as the" ma" spread over his propert"% and% if it be the roots of a neighboring tree which should penetrate into the land of another% the latter ma" cut them off himself within his propert". Art. 681. ?ruits naturall" falling upon adjacent land belong to the owner of said land. #gain, this is a limitation o ownership and not an easement. This is basically 3oning which can be modi ied by laws and ordinances.

3. 8asement against nuisances 7#rticles 1@2/1@38 Art. 682. 8ver" building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise% jarring% offensive odor% smoke% heat% dust% water% glare and other causes.

Art. 683. >ubject to $oning% health% police and other laws and regulations% factories and shops ma" be maintained provided the least possible anno"ance is caused to the neighborhood. This is also a limitation o ownership and not an easement. !uisance is any act, omission, establishment, condition, property or anything else which 7#rticle 1A;86 a. 4n&ures or endangers the health or sa ety o others" or b. #nnoys or o ends the senses" or c. +hoc(s, de ies or disregards decency or morality" or d. -bstructs or inter eres with the ree passage o any public highway or streets, or any body o water" or e. Finders or impairs the use o property. ;. !ateral and subjacent support 7#rticles 1@;/1@?8 5ec. 684. 1o proprietor shall make such e,cavations upon his land as to deprive an" adjacent land or building of sufficient lateral or subjacent support. Art. 685. An" stipulation or testamentar" provision allowing e,cavations that cause danger to an adjacent land or building shall be void. Art. 686. The legal easement of lateral and subjacent support is not onl" for buildings standing at the time the e,cavations are made but also for constructions that ma" be erected. Art. 687. An" proprietor intending to make an" e,cavation contemplated in the three preceding articles shall notif" all owners of adjacent lands. 4n lateral support, there is an obligation to see to it that the structures on your neighbors land will not collapse #rom your lands lack o# support. 4n sub&acent support, the owner o the sur ace and the sub/sur ace are di erent.

G. <oluntar" 8asements -ne can create voluntary easements in avor o another immovable or persons on ones property. 4n La >ista vs. ;A, the easement o right o way was not a legal easement but was created because o a contract. +ince it was created by a contract, the re*uisites or a right o way under #rts. 1;A and 10. need not be ollowed.

)IFFERENT *O)ES OF AC>UIRIN( OWNERS'IP


>ode is the speci ic cause which gives rise to ownership, as the result o the presence o a special condition o things, o the aptitude and intent o persons, and o compliance with the conditions established by law. Title is that which gives &uridical &usti ication or a mode because it produces the cause or the ac*uisition o ownership. >odes arise rom title. 4n a contract o sale, the ownership is trans erred not because o the contract o sale but by tradition 7delivery8. The modern trend however is to do away with the distinction between mode and title. 1. ,ri/inal 0o+e 4n an original mode, ownership is not ac*uired rom an immediately preceding owner. 4t does not however mean that the ob&ect was not owned be ore. For e$ample, i someone catches ish, it does not necessarily mean that person was the irst one to catch it 7occupation8. 4ntellectual creation, occupation 4n a derivative mode, ownership is based on a right previously held by another person. 5aw, tradition, donation, succession # 3 mode was created since prescription could not be classi ied as original or derivative. =rescription
rd

+. 6 T"pes of :odes

2. Deri(ati(e 0o+e

3. 0ixe+ 0o+e

++. :odes of Ac-uiring #wnership A. 3ntellectual creation 4ntellectual creation is now governed by the 4ntellectual =roperty Code and the T)4=+ #greement.

F. ,ccupation For occupation to occur, the ob&ect must be appropriable by nature 7#rticle < ?13 8. -ccupation regarding animals happens by hunting or ishing. The ac*uisition o animals can be regulated by law 7i.e. dynamite ishing8. The ownership o a piece o land cannot be ac*uired by occupation 7#rticle ?1;8. This is based on the )egalian 'octrine. Under the )egalian doctrine,

<

Art. 1*). Things appropriable by nature which are without an owner, such as animals that are the ob&ect o hunting and ishing, hidden treasure and abandoned movables, are ac*uired by occupation.

one cannot ac*uire land unless it was granted by the +tate or by its prior owner. Under the )egalian 'octrine, there is no such thing as land which is res nullius. 4 the state grants the land to N. N abandons the land. What happens to the land% There is no speci ic provision. =aras thin(s that the land goes bac( to the state. Under #rticle ?11 , the periods o 2 7 or bees8 and 2. days 7 or domesticated animals8 are not periods o prescription. )ather, these days are conditions or the ac*uisition by occupation There is a di erence between domesticated animals and domestic animals. 'omesticated animals are by nature wild animals but have been tamed possess the habit o returning to the premises o the possessor 7#rticle 01. 8. -n the other hand, a domestic animal is treated li(e any other personal property. 4t cannot be ac*uired by the occupation since it is owned unless the owner abandons the animal. 'omestic animals are governed by #rticle 00A . #rticle ?1A provides the procedure when one inds a lost movable which is not a treasure.

C. :a;

=ro$imately, law is 1 o the ? modes o ac*uiring ownership. Ultimately, law is the only source o ownership.

Art. 1*'. The owner o a swarm o bees shall have a right to pursue them to anotherCs land, indemni ying the possessor o the latter or the damage. 4 the owner has not pursued the swarm, or ceases to do so within two consecutive days, the possessor o the land may occupy or retain the same. The owner o domesticated animals may also claim them within twenty days to be counted rom their occupation by another person. This period having e$pired, they shall pertain to him who has caught and (ept them.

Art. %'0. Wild animals are possessed only while they are under oneCs control" domesticated or tamed animals are considered domestic or tame i they retain the habit o returning to the premises o the possessor.

Art. %%2. The possession o movable property ac*uired in good aith is e*uivalent to a title. !evertheless, one who has lost any movable or has been unlaw ully deprived thereo may recover it rom the person in possession o the same. 4 the possessor o a movable lost or which the owner has been unlaw ully deprived, has ac*uired it in good aith at a public sale, the owner cannot obtain its return without reimbursing the price paid there or.

Art. 1*2. Whoever inds a movable, which is not treasure, must return it to its previous possessor. 4 the latter is un(nown, the inder shall immediately deposit it with the mayor o the city or municipality where the inding has ta(en place. The inding shall be publicly announced by the mayor or two consecutive wee(s in the way he deems best. 4 the movable cannot be (ept without deterioration, or without e$penses which considerably diminish its value, it shall be sold at public auction eight days a ter the publication. +i$ months rom the publication having elapsed without the owner having appeared, the thing ound, or its value, shall be awarded to the inder. The inder and the owner shall be obliged, as the case may be, to reimburse the e$penses.

The provisions regarding law as a mode o ac*uiring ownership is scattered throughout the Civil Code 7i.e. #rticles 1@1, 1;3;, 1;01 8.

D. 7ra+ition 7#rticles 1;A1/10.18 Art. 1496. The ownership of the thing sold is ac-uired b" the vendee from the moment it is delivered to him in an" of the wa"s specified in articles ';CA to '(D'% or in an" other manner signif"ing an agreement that the possession is transferred from the vendor to the vendee. Art. 1497. The thing sold shall be understood as delivered% when it is placed in the control and possession of the vendee. Art. 1498. /hen the sale is made through a public instrument% the e,ecution thereof shall be e-uivalent to the deliver" of the thing which is the object of the contract% if from the deed the contrar" does not appear or cannot clearl" be inferred. /ith regard to movable propert"% its deliver" ma" also be made b" the deliver" of the ke"s of the place or depositor" where it is stored or kept. Art. 1499. The deliver" of movable propert" ma" likewise be made b" the mere consent or agreement of the contracting parties% if the thing sold cannot be transferred to the possession of the vendee at the time of the sale% or if the latter alread" had it in his possession for an" other reason. Art. 1500. There ma" also be tradition constitutu possessoriu .

Art. 1501. /ith respect to incorporeal propert"% the provisions of the first paragraph of article ';CB shall govern. +n an" other case wherein said provisions are not applicable% the placing of the titles of ownership in the possession of the vendee or the use b" the vendee of his rights% with the vendor9s consent% shall be understood as a deliver". Tradition comes rom the latin word tradere which means to deliver. Tradition is a mode o ac*uiring ownership as a conse*uence o certain contracts such as sale by virtue o which, actually or constructively, the ob&ect is placed in the control and possession o the trans eree.

Art. '/*.

Fruits naturally alling upon ad&acent land belong to the owner o said land.

Art. *4)4. When a person who is not the owner o a thing sells or alienates and delivers it, and later the seller or grantor ac*uires title thereto, such title passes by operation o law to the buyer or grantee. Art. *4%'. 4 property is ac*uired through mista(e or raud, the person obtaining it is, by orce o law, considered a trustee o an implied trust or the bene it o the person rom whom the property comes.

Einds o Tradition 1. )eal or material physical delivery 7#rticle 1;A?8 2. )in/i+a constructive a. 5i 'olica 7#rticle 1;A@8 )e*uisites i. Trans eror must have control o the thing The trans eror must have actual possession

ii. Trans eree must be put in control iii. There must be intent to trans er 4n Aviles vs. Arcega, a very controversial decision, the #lcantara sold the house to #viles as evidenced by a document ac(nowledged be ore a notary public. The document stated that #lcantara would continue to possess the house or ; months. #viles never too( possession o the property even a ter the lapse o ; months. #lcantara sold the house to #rcega. The +C said that #viles cannot invo(e symbolic delivery as this was prevented by e$press stipulation that #lcantara would continue in possession. The act that ; months had lapsed does not mean that there was symbolic delivery since there is no law providing that is should ta(e place a ter the e$ecution o the document where there is stipulation to the contrary. This case is controversial since those who dissented are the ; civil law e$perts. 7raditio clarium is part o tradicion sim5olica. 7raditio clarium is applicable only to personal property 7i.e. (eys8. 4n 9anco Filipino vs. =eterson, the goods in the warehouse were delivered when the (eys to the warehouse were given. anu 7#rticles 1;A1 and 1;AA, 1 part8
st

b. :on/a

Longa manu means long hand. 5iterally this means hat the trans er o ownership is done by pointing out. For e$ample, the ownership o the car is trans erred by pointing to the speci ic car. 4n longa manu, mere agreement is not enough. There must be an accompanying sign or gesture 7#rticle 1;AA8. anu 7#rticle 1;AA8 -revi manu means short hand. -revi manu occurs when the trans eree was already in possession be ore he had ac*uired ownership. For e$ample, the lessee is renting the house. The lessor sells the house to the lessee. possessoriu 7#rticle 10..8 ;onstitutum possessorium is the opposite o 5revi manu. 4n this case, the trans eror already in possession and continues to be in possession under a di erent capacity a ter ownership had been trans erred.

c. =re(i

d. *onstitutu

For e$ample, # owns a house. leases the house to 9.

# sells the house to 9.

# then

3. Muasi.tradition 7cuasi tradicion8 Kuasi/tradition re ers to the delivery o incorporeal property. For e$ample, shares o stoc( cannot be physically trans erred. What is delivered are the stoc( certi icates. The endorsement o the stoc( certi icate is delivery by *uasi/tradition. Fowever, in 7a5lante vs. A=uino, the +C applied *uasi/tradition to tangible property. #ccording to =ro essor 9alane, this is wrong. 4t should be tradicion sim5olica. +uccession should not be included here since succession is an independent mode o ac*uiring ownership. 4t is not part o tradition.

;. F" operation of law 7por ministerio de la le88 8. Donation 'onation is an act o liberality whereby a person disposes gratuitously o a thing or right in avor o another, who accepts it 7#rticle ?208. #ccording to =ro essor 9alane, the de inition o a donation in #rticle ?20 is wrong. # donation is not an act. 4t is a contract. a. Ceduction o# the donors patrimony b. +nhancement or increase o# the donees patrimony c. Animus donandi // intent to do an act o liberality 2. Classification of donations a. 3nter (i(os the e ectivity o the donation does not depend upon the donors death i. Pure or simple 7#rticle ?20 8 2ratuitous

1. ?eatures of donation

ii. Remunerator8 7#rticle ?21 8 The donation is made on account o# the donees merits. For e$ample, a parcel o land is given to 5 since 5 is the most outstanding student in law or out o gratitude or saving another persons li#e.

iii. ;onditional or modal 7#rticles ?21, ?33 8

Art. 1&%. 'onation is an act o liberality whereby a person disposes gratuitously o a thing or right in avor o another, who accepts it. Art. 1&'. When a person gives to another a thing or right on account o the latterCs merits or o the services rendered by him to the donor, provided they do not constitute a demandable debt, or when the gi t imposes upon the donee a burden which is less than the value o the thing given, there is also a donation. Art. 1)). 'onations with an onerous cause shall be governed by the rules on contracts and remuneratory donations by the provisions o the present Title as regards that portion which

e$ceeds the value o the burden imposed.

# conditional or modal donation imposes upon the donee a burden which is less than the value o the thing donated. For e$ample, N donates land worth =2.,...,.... Fowever, N must support the donors mother =2,...,.... The value o the donation is =1@,...,.... The more accurate term is not conditional but modal. >odal donations are not pure acts o liberality since a mode is imposed. #rticle ?33 is inaccurate. #rticle ?33 mentions remuneratory donations. This should be replaced by the word 2modal. This is a donation in name only. #n onerous donation is a contradiction in terms.

iv. .nerous 7#rticle ?338

b. 0ortis causa / the e##ectivity o# the donation depends upon the donors death The provisions on donation mortis causa are dead letter because donations mortis causa are governed by the provisions o testamentary succession which is another mode o ac*uiring ownership. # donates to 9 a parcel o land on the condition that 9 passes the 9ar o 2..1. -n the eve o the bar e$am, # dies. 9 passes the bar months a ter the death o #. This is a donation inter vivos since the cause or the donation is passing the bar. The test to determine whether or not it is inter vivos or mortis causa is the causal connection.

3. ?orm re-uired Form determines the validity o the donation. 'onations are one o the ew transactions le t in which orm determines validity. >ost transactions are consensual, the intent determining validity.

a. 0o(a'les 7#rticle ?;@8 Art. 748. The donation of a movable ma" be made orall" or in writing. An oral donation re-uires the simultaneous deliver" of the thing or of the document representing the right donated. +f the value of the personal propert" donated e,ceeds five thousand pesos% the donation and the acceptance shall be made in writing% otherwise% the donation shall be void. 4 the donation is worth =0,... or less, the donation can be made orally. Fowever, the oral donation must be accompanied by the simultaneous delivery o the movable or o the document representing the right donated. Without delivery, the donation is no good. 4 the value o the donation e$ceeds =0,..., the donation and the acceptance must be in writing. The writing may be in a public or in a private instrument.

b. 3

o(a'les 7#rticle ?;A8

Art. 749. +n order that the donation of an immovable ma" be valid% it must be made in a public document% specif"ing therein the propert" donated and the value of the charges which the donee must satisf". The acceptance ma" be made in the same deed of donation or in a separate public document% but it shall not take effect unless it is done during the lifetime of the donor. +f the acceptance is made in a separate instrument% the donor shall be notified thereof in an authentic form% and this step shall be noted in both instruments. The donation must be in a public instrument. The acceptance must either be in the same public instrument or in a di erent public instrument. #cceptance shall not ta(e e ect unless it is done during the li etime o the donor. 4 the acceptance is made in a separate public instrument, the donor shall be noti ied thereo in an authentic orm, and this step shall be noted in both instruments. ortis causa

;. Distinction between inter (i(os and

# donation mortis causa is always revocable. Thus, i the donation is designated as irrevocable or is revocable only or certain grounds or causes, then the donation is inter vivos. 4n a donation inter vivos, the property passes rom the donor to the donee 7ownership8. 4 the donor reserves the right o ownership, then the donation is mortis causa. # stipulation giving the donor the power to alienate the property i the donor needs money donation inter vivos. 4n this case, the right to alienate is limited.

,.7E: The reservation must pertain to a reservation o the ownership and !-T the ruits. 4 the donor reserves the power to alienate, then the donor reserves the right o ownership. 4t is a donation mortis causa. 4 the donor reserves the right to alienate only or certain grounds and causes, then it means that the donor has practically lost the right to alienate it. Which means, the donor has practically lost his right o ownership. This is a donation inter vivos. # stipulation stating that the donee cannot alienate without the donors consent donation mortis causa. 4n this case, the donor e ectively has the power to alienate. The donee will always needs the consent o the donor.

0. !imitations a. 9"o a! Donate ma&ority, no civil # donor must have capacity to act 7i.e. age o interdiction or other incapacity, etc.8 #rticle ?30.

Art. 735. All persons who ma" contract and dispose of their propert" ma" make a donation. The donor must have capacity at the time the donation is made. The donation is per ected rom the moment the donor (nows o the acceptance by the donee 7#rticle ?3;8 cognition theory Art. 734. The donation is perfected from the moment the donor knows of the acceptance b" the donee. Under the cognition theory, the contract is per ected upon the donors learning o# the donees acceptance. It is not per#ected when the donee simply mani ests his acceptance the mani estation theory. Enowledge by the donor is crucial. 4n order or the donation to be per ected, the donor must have (nowledge o the donees acceptance. Thus, the donor must be alive and must have capacity at the time he learns o# the donees acceptance. a! 'e a Donee #ll those who are not speci ically dis*uali ied by law may accept donations 7#rticle ?3@8. The ollowing are void donations6 i. 7$ose made 5et4een persons 4$o 4ere guilt8 o" adulter8 or concu5inage at t$e time o" t$e donation 7#rticle ?3A 7188 Conviction is not necessary. The donation shall not be void i the donee did not (now o the donors e4isting marriage.

b. 9"o

c. @oi+ Donations

ii. 7$ose made 5et4een persons "ound guilt8 o" t$e same criminal o""ense! in consideration t$ereo" 7#rticle ?3A 7288 #ggravating circumstance o price, promise or reward iii. 7$ose made to a pu5lic o""icer or $is 4i"e! descendants and ascendants! 58 reason o" $is o""ice 7#rticle ?3A 7388 iv. Donations made 58 guardians and trustees o" propert8 entrusted to t$em 7#rticle ?318 4n Araneta vs. Pere , the owner o the land had a trustee. The land was being developed into a subdivision. The trustee donated with the courts consent to the N>5 a portion o# the land to be used as a street. The donation to the 52U was being challenged on the basis o #rticle ?31. The +C said that #rticle ?31 contemplates donations which are pure. 4n this case, the

donation to the 52U was not a pure donation. The donation was necessary to develop the subdivision. d. The donation should not be ino icious e. The donation should not pre&udice creditors . The donation should not impair support or the donor and his amily g. 'onations cannot comprehend uture property 7#rticle ?018 Art. 751. Donations cannot comprehend future propert". F" future propert" is understood an"thing which the donor cannot dispose of at the time of the donation. 1. )eduction and revocation a. 7"e +onation s"oul+ not 'e ino..icious 7#rticle ?028 Art. 752. The provisions of article A(D notwithstanding% no person ma" give or receive% b" wa" of donation% more than he ma" give or receive b" will. The donation shall be inofficious in all that it ma" e,ceed this limitation. # donation is ino icious i it impairs the legitime. #n ino icious donation will be reduced in so ar as it e$ceeds what the donor could have given by will to the donee the ree portion. Whether a donation is ino icious or not can only be determined at the time o the death o the donor. The heirs o the donor have 1. years rom the death o the donor to revo(e or reduce the donation (Imperial vs. ;A). 4 there is a subse*uent appearance or birth o a child and his legitime is impaired because o a donation, the donation may be revo(ed or reduced to the e$tent that his legitime is pre&udiced 7#rticles ?1. and ?118. Art. 760. 8ver" donation inter (i(os% made b" a person having no children or descendants% legitimate or legitimated b" subse-uent marriage% or illegitimate% ma" be revoked or reduced as provided in the ne,t article% b" the happening of an" of these events* 3'5 +f the donor% after the donation% should have legitimate or legitimated or illegitimate children% even though the" be posthumous2 345 +f the child of the donor% whom the latter believed to be dead when he made the donation% should turn out to be living2 365 +f the donor subse-uentl" adopt a minor child. Art. 761. +n the cases referred to in the preceding article% the donation shall be revoked or reduced insofar as it e,ceeds

the portion that ma" be freel" disposed of b" will% taking into account the whole estate of the donor at the time of the birth% appearance or adoption of a child. 4n the case o the subse*uent appearance or birth o a child, the action to revo(e or reduce the donation shall prescribe a ter ; years rom the birth o the child, or rom his legitimation, recognition or adoption or rom the &udicial decree o iliation, or rom the time the in ormation was received regarding the e$istence o the child believed dead. This action cannot be renounced, and is transmitted upon the death o the donor, to his legitimate and illegitimate children and descendants 7#rticle ?138.

b. 7"e +onation s"oul+ not pre6u+ice cre+itors 7#rticle ?0A8 Art. 759. There being no stipulation regarding the pa"ment of debts% the donee shall be responsible therefor onl" when the donation has been made in fraud of creditors. The donation is alwa"s presumed to be in fraud of creditors% when at the time thereof the donor did not reserve sufficient propert" to pa" his debts prior to the donation. 4 the donor does not have enough properties reserved to pay o his creditors, the creditors have ; years rom the (nowledge o the donation to rescind the donation accion pauliana 7#rticles 13@1 738, 13@? and 13@A 8 pair t"e support .or t"e +onor or "is

c. 7"e +onation ust not i relati(es 7#rticle ?0.8

Art. 750. The donations ma" comprehend all the present propert" of the donor% or part thereof% provided he reserves% in full ownership or in usufruct% sufficient means for the support of himself% and of all relatives who% at the time of the acceptance of the donation% are b" law entitled to be supported b" the donor. /ithout such reservation% the donation shall be reduced in petition of an" person affected.

Art. *)/*. The ollowing contracts are rescissible6 738 Those underta(en in raud o creditors when the latter cannot in any other manner collect the claims due them"

Art. *)/1. #ll contracts by virtue o which the debtor alienates property by gratuitous title are presumed to have been entered into in raud o creditors, when the donor did not reserve su icient property to pay all debts contracted be ore the donation. #lienations by onerous title are also presumed raudulent when made by persons against whom some &udgment has been issued. The decision or attachment need not re er to the property alienated, and need not have been obtained by the party see(ing the rescission. Art. *)/2. The action to claim rescission must be commenced within our years. For persons under guardianship and or absentees, the period o our years shall not begin until the termination o the ormerCs incapacity, or until the domicile o the latter is (nown.

I# the donor does not reserve enough property #or his and his #amilys support, the donation can be reduced. The donation can be reduced as much as may be necessary. 4n e$treme cases, the donation can be revo(ed i the donor gave away so much, and the donor and his amily need everything bac(. ust co pl! ;it" t"e con+itions o. t"e +onation 7#rticle

d. Donations ?1;8

Art. 764. The donation shall be revoked at the instance of the donor% when the donee fails to compl" with an" of the conditions which the former imposed upon the latter. +n this case% the propert" donated shall be returned to the donor% the alienations made b" the donee and the mortgages imposed thereon b" him being void% with the limitations established% with regard to third persons% b" the :ortgage !aw and the !and )egistration laws. This action shall prescribe after four "ears from the noncompliance with the condition% ma" be transmitted to the heirs of the donor% and ma" be e,ercised against the donee9s heirs. For ailure to comply with the conditions o the donation, the donor or his heirs have ; years rom noncompliance to revo(e the donations. The right o# revocation may be e4ercised against the donees heirs. )evocation is the only available remedy in this situation. )eduction is not applicable. ust not act ;it" in/ratitu+e 7#rticle ?108 The ollowing are acts o ingratitude a. 4 the donee should commit some o ense against the person, the honor or the property o the donor, or o his wi e or children under his parental authority b. 4 the donee imputes to the donor any criminal o ense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himsel , his wi e or children under his authority c. 4 he unduly re uses him support when the donee is legally or morally bound to give support to the donor The re usal by the donee must be un&usti iable. The act that these acts were committed will not give rise to the revocation. The donor must invo(e these grounds. The donor has 1 year rom the time the donor ac*uires (nowledge o the donees act o# ingratitude to revo(e 7#rticle ?1A8. Art. 769. The action granted to the donor b" reason of ingratitude cannot be renounced in advance. This action prescribes within one "ear% to be counted from the time the

e. 7"e +onee

donor had knowledge of the fact and it was possible for him to bring the action. ?. 5uccession G. &rescription +++. :odes of 8,tinguishing #wnership A. @oluntar! 0o+es 1. Abandonment )ights such as ownership may be waived. Under #rticle 1, the waiver o ownership need not ollow any ormalities. Art. 6. )ights ma" be waived% unless the waiver is contrar" to law% public order% public polic"% morals% or good customs% or prejudicial to a third person with a right recogni$ed b" law. 2. Alienation a. .nerous title 7i.e. sale8 b. :ratuitous title i. Inter vivos ii. 9ortis causa 3. <oluntar" destruction 7i.e. burning o trash8 F. 3n(oluntar! 0o+es 1. ?ortuitous loss or destruction 7i.e. ire8 2. Accession continua 7i.e. bad aith in commi$tion or con usion8 3. )escissor" actions ;. 0udicial decree =ro essor 9alane does not thin( that &udicial decree should be enumerated as an involuntary mode since the &udicial decree would be based on something else.

0. F" operation of law 7i.e. con iscate due to police power8

Obl$ga#$ons an, Con#ra"#s


+ntroduction -ur Civil Code ollows the 2aian order which is o three parts6 =ersons, Things and -bligations. The title o# %ook IM o# the *ivil *ode is inaccurate. hile the title is 2,bligations and *ontracts, it should only be 2,bligations since by including 2*ontracts in the title, it is putting the latter on e*ual ooting with the ormer" but this is not correct since contracts is only one o the sources o obligations. -bligations is the most important, most abstract and most di icult o all o civil law. It is the entirety o# private law. I# you dont know obligations and contracts, you will never understand commercial law.

The term 2obligations was derived #rom the words 2ob and 2ligare which means 2to bind or tie together. 2Nigare is the source o several common words such as 2ligament and 2ligation. ?Nigation and Masectomy have the same purposeO to tie and to cut o , the allopian tube, or the ormer, and the vas de erens, or the latter.8 2,bligatio was initially a physical act o being chained 7with shac(les8. 9e ore, under )oman law, i the debtor cannot pay, the creditor can bring him to the magistrate and the magistrate can authori3e the creditor to cu the debtor and o er him or sale or 3 days, the proceeds o which go to the creditor. The debtor then becomes a slave. 4 he is not bought, the creditor can have him chopped into little pieces or have him sold to the barbarians. $s time passed, cruelty so#tened. %y the time o# *icero, 2ligatio does not mean vinculum o chains but vinculum #uris 7bond o law8. -bligation became metaphorical and not literal. +. #bligations A. De.inition o. ,'li/ation Art. 1156. An obligation is a juridical necessit" to give% to do or not to do. This provision is the soul o brevity. 4t was borrowed rom +anche3 )oman. "owever, many commentators say it is incomplete because the 2obligation is only rom the point o view o the debtor. To ma(e it complete, it must cover the points o view o both the debtor and creditor. -bligations are bilateral. 4t should include what can be re*uired, the remedy and the means by which the creditor can ta(e to pursue the remedy. #n obligation is a &uridical relation whereby a person should engage or re rain rom engaging in a certain activity or the satis action o the private interest o another who, in the case o non/ ul illment o such duty, may obtain rom the patrimony o the ormer through proper &udicial proceedings the very prestation due or in de ault thereo , the economic e*uivalent that it represents 7'ia3 =iero8. #n obligation is a &uridical relation whereby a person 7called a creditor8 may demand rom another 7called the debtor8 the observance o a determinate conduct, and, in case o breach, may obtain satis action rom the assets o the latter 7#rias )amos8.

F. *"aracteristics o. ,'li/ations 1. 4t represents an e$clusively private interest 2. 4t creates ties which are by nature transitory 9ecause obligations are e$tinguished. 9ut the period is relative could be seconds 7e.g.! buying co(e8 and could be years 7e.g.! partnership, lease8 non/

3. 4t involves the power to ma(e the &uridical tie de ective in case o #ul#illment through satis#action o# the debtors property C. 7ren+s in t"e 0o+ern :a; o. ,'li/ations 1. Progressive spirituali$ation of the law on obligations

9e ore, obligations were very ormal and ritualistic. 4 it was not in the proper orm, no obligations will assume. !ow, the emphasis is in the meeting o the minds, and not on the speci ic orm. There is even no need

that it be in writing, as a General )ule, since consensuality is the prevailing doctrine. #s long as it can be mani est and any (ind o mani estation will do it is su icient. )oman 5aw was ormalistic. Oestiges o )oman 5aw in the Civil Code can be seen in the law governing donations, which is very ormal. ,ven or sales, the re*uirement o orm is only or en orceability and not or validity. This is to ma(e it conducive to business and acilitate commercial transactions. This is still an ongoing trend6 e/commerce added another option in orm and proo o contracts 7but this is not applicable to all, usually only or business, not applicable to wills8.

2. The principle of autonom" of will of the parties is now subject to several restrictions While the principle still operates, the e$ceptions 7prohibited areas8 have grown larger and larger. #rticle 13.1 gives the ive restrictions6 not contrary to law, morals, good customs, public order, or public policy. Those which are against these ive < restrictions are void, as can be seen in #rticle 1;.A . Fowever, now we have restrictions such as social &ustice, environmental preservation, etc. This is because o the rising tide o social discontent, hence social legislation came to be or the underprivileged.

3. The mitigation of the principle that the debtor should answer with all his propert" 9e ore, the debtor had to answer his debts with all his property. !ow, certain properties are e$empt and these can be ound in substantive law 7i.e.! home8 and in procedural law 7i.e. support, etc.8 #lso, the debtor may not be imprisoned or non/payment o debts. The theory is to leave the debtor something to live decently by. This is basically the principle in *uasi/delicts. !ow, in many cases, a person may be held liable even i not responsible. 3or e4ample, under workmans compensation, the employer is liable to compensate the employee even i the employer was not negligent. This can be mani#est in the rise o# a 2global village. This can be seen particularly in trade laws. The tendency now is to ma(e things uni orm especially in commerce. 'i erent rules would impede commerce.

;. The weakening of the principle that liabilit" arises from responsibilit"

0. The tendenc" of unit" in modern legislation

Art. *402. The ollowing contracts are ine$istent and void rom the beginning6 718 Those whose cause, ob&ect or purpose is contrary to law, morals, good customs, public order or public policy"

D. Essential Re>uisites o. ,'li/ations 1. Active subject The active sub&ect is called a creditor i the obligation is to give. The active sub&ect is called an obligee i the obligation is to do. The active sub&ect is always a person whether &uridical or natural. The passive sub&ect is called a debtor i the obligation is to give. passive sub&ect is called an obligor i the obligation is to do. The passive sub&ect must be determinate or determinable The

2. Passive subject

Fow can both sub&ects be determinate or determinable% a. -bligations where the sub&ects are completely and absolutely determined at the birth o an obligation. I# $ and % are parties to a contract o# sale and % doesnt comply. $ cannot sue C.

b. -bligations where one sub&ect is determined at the moment o the birth o the obligation and the other sub&ect is to be determined subse*uently at some i$ed criterion, which criterion is i$ed at the start o the obligation. 9 ma(es a promissory note payable to > or order. 4n this case, the creditor is not necessarily >. The creditor is either > or to whomever the promissory note is endorsed. #t the time o the birth o the obligation, the payee is not yet (nown but the obligation is valid.

c. -bligations in which sub&ects are determined in accordance with its relation to a thing. The real rights # mortgaged property to N pursuant to a loan. The mortgage attaches to the property. 4 # sells the property to 9, the annotation in the TCT will #ollow and % becomes the mortgagor. I# $ doesnt pay, G goes against 9. The obligor in this case is whoever owns the land. whether its # or 9. G doesnt care

3. #bject of the obligation The ob&ect o the obligation always consists in an activity or conduct to be observed by the debtor towards the creditor. This conduct to be observed is also (nown as the prestation. 4n a contract o sale or e$ample, the ob&ect o the obligation is the conduct o the vendor in delivering the car. The car, on the other hand, is the ob&ect o the prestation.

obligation

prestation 7ob&ect o the obligation8 deliver the car

car

7ob&ect o the prestation8

+ometimes, the commentators con use the car as the ob&ect o the obligation, but this is wrong. The ob&ect is not the car but the prestation. #ccording to =ro essor 9alane, the distinction between the ob&ect o the obligation and the ob&ect o the prestation has been blurred by #rticles 13;?/13;A. )e*uisites o the -b&ect o the -bligation a. 5icit 75egal8 Example: *ant validly enter into a contract #or se4ual services 'etermined by the rules o e$perience *ant say that 2I promise to sell you something. Example o" determinate: 4 promise to sell you my car. Example o" determina5le: 4 promise to sell you my riceland in 9icol in !ovember 7will become determinate when time comes8. 6uris b. =ossible both in act and in law c. 'eterminate or determinable

d. >ust have pecuniary value ;. @inculu The vinculum #uris is the legal tie. 4t consists o the en orceability o the obligation. 4 the debtor does not con orm, the creditor has the power to go to court to ma(e the debtor per orm coercive. What ma(es an obligation is the power o the creditor to haul the debtor be ore the court, summoning powers o the state i needed. Ooluntariness goes into entering into an obligation. 9ut once you enter, it becomes involuntary. Castan adds a 0 essential re*uisite causa. #lso (nown as causa de5endi or causa o5ligationes. ;ausa means the why o an obligation. The ob;ect o# an obligation answers the 8uestion 2 hat is owed! ?Puid@. The causa answers the 8uestion 2 hy is it owed! ?*ur@.
th

0. *ausa

For e$ample, # will deliver a car to 9 since # e$pects to get =3..,.... The =3..,... is the causa o the obligation.

1. ?orm #nother commentators say that the 1 essential re*uisite is orm. Form means some mani estation o intent. 4n some cases the mani estation is speci ic such as in the case o donations. #ccording to =ro essor 9alane that the general rule is that there is no speci ic orm or a valid obligation. Fowever, i orm means that there is some e$ternal mani estation, ine, since we are not telepathic a ter all. Fowever, there should still be no speci ic orm.
th

8. 5ources o. ,'li/ations 7#rticle 110?8 Art. 1157. #bligations arise from* 3'5 !aw2 345 Contracts2 365 Muasi.contracts2 3;5 Acts or omissions punished b" law2 and 3(5 Muasi.delicts. There is really only one source o obligations &ust law. Without the law saying that a particular contract is en orceable, the contract will not give rise to an obligation. "owever, 2source can be understood in both the ultimate and immediate sense. 4n the ultimate sense, law is the solitary source. 4n the immediate sense, there are 0, those enumerated in #rticle 110?. 5aw is there ore both an immediate and ultimate source. ,$amples o law being an immediate source are payment o ta$es and accession. 4s this enumeration o the sources o obligation e$clusive% The +upreme Court in the case o +agrada .rden vs. ,A;.;. seem to answer it in the a irmative. Fowever, this is only by implication or indication. The Court did not ma(e an e$plicit statement that it is. >any commentators including =ro essor 9alane believe that the list is not e$clusive. They critici3e the case because it is not a good way o enumerating. #t present, there is one more possible source o obligations public o er. Example: 4n commercials, there is an o er to replace 3. sachets o Tide or one Oenetian/cut glass until the end o the year. There is no contract or *uasi/contract. 9ut i be ore the end o the year, you present your Tide sachets, you can demand or your glass. =ublic o er is in act a source o obligation under the 929 7the 2erman Civil Code8, #rticle 10? which provides that a person who by public notice announces a reward in the per ormance o the act is liable even i such person did not act in view o such reward. #lthough public o icers are supplemented by 'T4 regulations, =ro essor 9alane thin(s that public o er should be made part o the law since regulations easily change.

1. !aw 7#rticle 110@8 Art. 1158. #bligations derived from law are not presumed. #nl" those e,pressl" determined in this Code or in special laws are demandable% and shall be regulated b" the precepts of the law which

establishes them2 and as to what has not been foreseen% b" the provisions of this Fook. There is only 1 ultimate source o obligations law. Fowever, there are 0 pro$imate sources o obligations 7#rticle 110?8.

2. Contract 7#rticle 110A8 Art. 1159. #bligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Contract is only 1 o the sources o obligations. This provision combines two concepts o )oman law e*uity or good aith (ius gentium) and strict compliance by the parties (ius c$inile). # contract is a meeting o minds between 2 persons whereby one binds himsel , with respect to the other, to give something or to render some service 7#rticle 13.08 Contractual obligations have the orce o law between the contracting parties and should be complied with in good aith 7#rticle 110A8. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy 7#rticle 13.18. Contracts are per ected by mere consent, and rom that moment the parties are bound not only to the ul illment o what has been e$pressly stipulated but also to all the conse*uences which, according to their nature, may be in (eeping with good aith, usage and law 7#rticle 13108. 4n case o doubt, the interpretation consistent with good aith is ollowed $Peoples "ar vs. "ommando Security#. =arty cannot e$cuse themselves on the ground that it has become unpro itable. 5aw will not protect you rom your own bad &udgment.

3. Muasi.contract 7#rticle 111.8 Art. 1160. #bligations derived from -uasi.contracts shall be subject to the provisions of Chapter '% Title J<++% of this Fook. ;. Delict 7#rticle 11118 Art. 1161. Civil obligations arising from criminal offenses shall be governed b" the penal laws% subject to the provisions of article 4'AA% and of the pertinent provisions of Chapter 4% Preliminar" Title% on 7uman )elations% and of Title J<+++ of this Fook% regulating damages. General )ule* 4 you commit a crime, you are liable both criminally and civilly. Exception: !o private o ended party 7e.g. contempt, etc.8

The Civil Code deals with the civil aspect 7i.e. indemni ication or loss o earning capacity8.

0. Muasi.delict 7#rticle 11128 Art. 1162. #bligations derived from -uasi.delicts shall be governed b" the provisions of Chapter 4% Title J<++ of this Fook% and b" special laws. Kuasi/delict is a civil law term while tort is a common law term. 'i erence between Contractual 5iability and Kuasi/'elict 4n *uasi/delict, the obligation arises only when there is a violation. Without violation, there is no obligation. 4t is the breach itsel which gives rise to the obligation. 4n contracts, there is already an obligation which e$ists prior to or even without a breach. The breach o the contract is immaterial to the legal obligation. Example: Contract o sale o watch. 4 both parties per orm their obligation, the contract is e$tinguished. There is no breach, but there is an obligation. (;ompare t$e a5ove example 4it$ t$e one 5elo4) Example: 'riving rec(lessly, # hits a child. When did the obligation came to being% When there was in&ury due to negligence. 7!egligence per se does not give rise to a *uasi/delict unless there is in&ury.8 9reach and *uasi/delict are inseparable. 9ut contract and breach may be separable. Muestion* #re contracts and *uasi/delicts mutually e$clusive% Ans;er: !o. 4n :utierre vs. :utierre , there was a collision between a bus and a car and a passenger o the bus was in&ured. 4t was proven that the driver o the car was a minor and an incompetent driver. The passenger sued against them all. The +upreme Court held that the bus driver, bus owner and the driver o the car 7through his ather8 are &ointly and severally liable to the passenger. The liability o the owner o the bus and the bus driver rests on that o a contract. -n the other hand, the ather is responsible or the acts o his son and is there ore responsible or the negligence o the minor. Fere, it is clear that breach o contract and *uasi/delict are separate. Fowever, they can overlap as can be seen in the ollowing e$ample6 9us driver drives rec(lessly and the bus hits a tree. # passenger is in&ured. The passenger and sue the driver or *uasi/delict 7due to negligence8 or or crime or the bus company or breach o contract o carriage or or *uasi/ delict 7negligence in the selection and supervision8. The cause o action one chooses determines the6 1. =arties involved 2. 'egree o proo

3. 'e enses -ne can tailor his suit depending on the cause o action he chooses. ?. #ature an+ E..ect o. ,'li/ations 1. Ninds of Prestations a. To give 7#rticles 1113/11118 Art. 1163. 8ver" person obliged to give something is also obliged to take care of it with the proper diligence of a good father of a famil"% unless the law or the stipulation of the parties re-uires another standard of care. Art. 1164. The creditor has a right to the fruits of the thing from the time the obligation to deliver it arises. 7owever% he shall ac-uire no real right over it until the same has been delivered to him. Art. 1165. /hen what is to be delivered is a determinate thing% the creditor% in addition to the right granted him b" article ''AD% ma" compel the debtor to make the deliver". +f the thing is indeterminate or generic% he ma" ask that the obligation be complied with at the e,pense of the debtor. +f the obligor dela"s% or has promised to deliver the same thing to two or more persons who do not have the same interest% he shall be responsible for an" fortuitous event until he has effected the deliver". Art. 1166. The obligation to give a determinate thing includes that of delivering all its accessions and accessories% even though the" ma" not have been mentioned. i. 7o give a determinate t$ing Primar" #bligation* 2iving what is supposed to be given. 3 Accessor! ,'li/ations: 1. # ter constitution o the obligation and be ore delivery, to ta(e care o it with the proper diligence o a good ather o the amily 7#rticle 11138 General )ule* 'iligence o a good ather o the amily Exception: 5aw or stipulation re*uires di erent standard o care 4 through negligence, something causes the thing damage, the debtor is liable or damages. This is not applicable to a generic thing.

2. 7o account and deliver to t$e creditor t$e "ruits i" t$e t$ing 5ears "ruits upon t$e time t$e o5ligation to deliver it arises 7#rticle 111;8.

Fowever, ownership is trans erred only by delivery. Fence, creditors right over the #ruits is merely personal. Example: # sold 9 a mango plantation to be delivered on Ianuary 1. Come Ianuary 1, # did not deliver. # instead sold the ruits to C, a buyer in good aith. 9 sues # or speci ic per ormance. Court awards the plantation to 9. 'oes 9 have a right to the ruits% Des, as against #. !o, as against C, because 9s right over the #ruits is only personal. %s remedy is to go against $ #or the value o# the #ruits. :ont take accession in the technical sense ?or else, it might overlap with ii8. Understand it to mean things that go with the thing to be delivered 7i.e. radio o the car8.

3. 7o deliver t$e accessions and accessories 7#rticle 11118

)emedies #vailable to the Creditor 1. +peci ic per ormance the debtor must per orm it personally 2. ,*uivalent per ormance damages 'amages may be obtained e$clusively or in addition to the st 1 action.

)ules regarding 4mprovement, 5oss or 'eterioration 7#rticles 11@A, 11A., 11A; 8 Art. 1189. /hen the conditions have been imposed with the intention of suspending the efficac" of an obligation to give% the following rules shall be observed in case of the improvement% loss or deterioration of the thing during the pendenc" of the condition* 3'5 +f the thing is lost without the fault of the debtor% the obligation shall be e,tinguished2 345 +f the thing is lost through the fault of the debtor% he shall be obliged to pa" damages2 it is understood that the thing is lost when it perishes% or goes out of commerce% or disappears in such a wa" that its e,istence is unknown or it cannot be recovered2 365 /hen the thing deteriorates without the fault of the debtor% the impairment is to be borne b" the creditor2 3;5 +f it deteriorates through the fault of the debtor% the creditor ma" choose between the rescission of the obligation and its fulfillment% with indemnit" for damages in either case2 3(5 +f the thing is improved b" its nature% or b" time% the improvement shall inure to the benefit of the creditor2 3@5 +f it is improved at the e,pense of the debtor% he shall have no other right than that granted to the usufructuar".

Art. 1190. /hen the conditions have for their purpose the e,tinguishment of an obligation to give% the parties% upon the fulfillment of said conditions% shall return to each other what the" have received. +n case of the loss% deterioration or improvement of the thing% the provisions which% with respect to the debtor% are laid down in the preceding article shall be applied to the part" who is bound to return. As for the obligations to do and not to do% the provisions of the second paragraph of article ''BA shall be observed as regards the effect of the e,tinguishment of the obligation. Art. 1194. +n case of loss% deterioration or improvement of the thing before the arrival of the da" certain% the rules in article ''BC shall be observed. 1. )e*uisites a. -bligation has a suspensive condition, a resolutory condition or term b. The obligor is obligated to deliver a determinate thing c. There is improvement, loss or deterioration be ore the ul illment o the condition or the period d. The condition is ul illed or the period arrives 2. )ules =roper a. 4 the thing is lost without the obligation is e$tinguished ault o the debtor, the

b. 4 the thing is lost through the ault o the debtor, he must pay damages The thing is lost when it perishes, goes out o commerce or disappears in such a way that its e$istence is un(nown or cannot be recovered.

c. 4 the thing deteriorates without the ault o the debtor, the creditor must accept the thing in its impaired condition d. 4 the thing deteriorates through the ault o the debtor, the creditor may choose between i. )esolution 7#rticle 11@A8 plus damages ii. Ful illment o the obligation plus damages e. 4 the thing is improved by nature or by time, the improvement shall inure to the bene it o the creditor . 4 the thing is improved at the e$pense o the debtor, the debtor shall the same rights as a usu ructuary

ii. 7o give a generic t$ing )emedies #vailable to the Creditor 1. +peci ic per ormance the debtor must per orm it personally 2. +ubstitute per ormance done by someone else 7per orm at the e$pense o the debtor8 3. ,*uivalent per ormance damages 'amages may be obtained e$clusively or in addition to the st 1 2 actions.

c. 7o +o 7#rticle 111?8 Art. 1167. +f a person obliged to do something fails to do it% the same shall be e,ecuted at his cost. This same rule shall be observed if he does it in contravention of the tenor of the obligation. ?urthermore% it ma" be decreed that what has been poorl" done be undone. i. -nly the obligor can do 7personalisimo) )emedies #vailable to the Creditor 1. ,*uivalent per ormances damages ii. #nyone else can do it 7not personalisimo8 )emedies #vailable to the Creditor 1. +ubstitute per ormance done by someone else 7per orm at the e$pense o the debtor8 2. ,*uivalent per ormance damages 'amages may be obtained e$clusively or in addition to the st 1 2 actions.

b. #ot to +o 7#rticle 111@8 Art. 1168. /hen the obligation consists in not doing% and the obligor does what has been forbidden him% it shall also be undone at his e,pense. This includes the obligation not to give. )emedies #vailable to the Creditor i. +ubstitute per ormance / done by someone else 7per orm at the e$pense o the debtor8 'amages may be obtained e$clusively or in addition to the 1 actions.
st

ii. ,*uivalent per ormance / damages 2

+ummary o the rules regarding remedies available to the creditor in obligations to give, to do and not to do. >pecific Performance Q Q U U U 8-uivalent Performance Q Q Q Q Q >ubstitute Performance U Q U Q Q

#bligation '. To give a. Determinate thing b. Determinable thing 4. To do a. <er" personal b. 1ot ver" personal 6. 1ot to do

+peci ic per ormance is the per ormance o the prestation itsel . 4n obligations to do or not to do, speci ic per ormance is not available since it will go against the constitutional prohibition against involuntary servitude.

,*uivalent per ormance is the payment o damages +ubstitute per ormance is when someone else per orms or something else is per ormed at the e$pense o the debtor.

2. +rregularit" in Performance a. Attri'uta'le to t"e De'tor 1culpa'le2 #rticle 11?. provides that those who in the per ormance o their obligations are guilty o raud, negligence, or delay and those who in any manner contravene the tenor thereo , are liable or damages. $ccording to &ro#essor %alane, the phrase 2 who in any manner contravene the tenor thereo# is a catch /all provision. Fowever, such is unnecessary. !othing will escape raud, negligence or delay. ?raud 7#rticles 11?., 11?18 Art. 1170. Those who in the performance of their obligations are guilt" of fraud% negligence% or dela"% and those who in an" manner contravene the tenor thereof% are liable for damages. Art. 1171. )esponsibilit" arising from fraud is demandable in all obligations. An" waiver of an action for future fraud is void. The problem with raud is the term. 4t is used in di erent meanings in the Code. Fraud may be de ined as the voluntary e$ecution o a wrong ul act, or will ul omission, (nowing and intending the e ects which naturally and necessarily arise rom such act or omission. Fraud is the deliberate and intentional evasion o the normal ul illment o

i.

the obligation. 4t is distinguished rom negligence by the presence o deliberate intent, which is lac(ing in the latter. (Legaspi .il vs. ;A) Fraud under #rticle 11?. is more properly called as malice. Fraud under #rticle 11?. must not be con used with raud under #rticle 133@ . Fraud under #rticle 133@ is more properly called as deceit. 4n #rticle 133@, raud pree$ists the obligation, thus the obligation is voidable. 'eceit vitiates consent in contracts. 'eceit is antecedent raud. The deceit occurs by using insidious words machinations. Without this deceit, the other party would not have entered into the contract. 4n #rticle 11?1, there was already an obligation be ore the raud e$ists. >alice is subse*uent raud. Example o" "raud as deceit under Article *))/: # and 9 entered into a contract o sale o a diamond nec(lace. Fowever, the nec(lace was really made o glass. Fraud here is deceit. There was vitiation o consent hence the contract is voidable. Example o" "raud as malice under Article **1*. # and 9 entered into a contract. 9 will deliver urniture made o narra but 9 delivered one made o plywood. Fraud here is malice. 4t will not a ect the validity o the contract. , ects o Fraud 7#rticles 11?., 11?18 1. Creditor may insist on proper substitute or speci ic per ormance 7#rticle 1233 8" or 2. )escissionH)esolution 7#rticle 11A1 8 3. 'amages in either case 7#rticle 11?.8 ii. ,egligence !egligence is the absence o due diligence 7#rticle 11?38

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is re-uired b" the nature

Art. *))/. There is raud when, through insidious words or machinations o one o the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.

#rt. 1233. # debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been completely delivered or rendered, as the case may be.

Art. **2*. The power to rescind obligations is implied in reciprocal ones, in case one o the obligors should not comply with what is incumbent upon him. The in&ured party may choose between the ul illment and the rescission o the obligation, with the payment o damages in either case. Fe may also see( rescission, even a ter he has chosen ul illment, i the latter should become impossible. The court shall decree the rescission claimed, unless there be &ust cause authori3ing the i$ing o a period. This is understood to be without pre&udice to the rights o third persons who have ac*uired the thing, in accordance with articles 13@0 and 13@@ and the >ortgage 5aw.

of the obligation and corresponds with the circumstances of the persons% of the time and of the place. /hen negligence shows bad faith% the provisions of articles ''A' and 44D'% paragraph 4% shall appl". +f the law or contract does not state the diligence which is to be observed in the performance% that which is e,pected of a good father of a famil" shall be re-uired. Art. 1172. )esponsibilit" arising from negligence in the performance of ever" kind of obligation is also demandable% but such liabilit" ma" be regulated b" the courts% according to the circumstances. 5i(e raud, negligence results in improper per ormance. 9ut it is characteri3ed by lac( o care, unli(e raud which is characteri3ed by malice. 5ac( o care means lac( o due diligence or the care o a good ather o the amily (5onus pater"amilias) under #rticle 1113. 4n ,nglish law, due diligence is called the diligence o a prudent businessman, since they are more commerce/oriented. 2 Types o !egligence 1. +imple 2. 2ross The determination o due diligence is always relative. 4t will depend on 1. The nature o the obligation 2. !ature o the circumstances o a. =erson b. Time c. =lace Example: The diligence re*uired in shipping hinges is di erent rom the diligence re*uired in shipping the Pieta de 9ic$aelangelo. The shipper must observe the diligence o a good ather o the amily in both cases but the standard o care is di erent. 4t is much higher or the Pieta. The diligence o a good ather o the amily is the imaginary standard.

, ects o !egligence 7#rticles 11?., 11?28 1. Creditor may insist on proper substitute or speci ic per ormance 7#rticle 12338" or 2. )escissionH)esolution 7#rticle 11A18 3. 'amages in either case 7#rticle 11?.8

iii. Dela8 (9ora) Art. 1169. Those obliged to deliver or to do something incur in dela" from the time the obligee judiciall" or e,trajudiciall" demands from them the fulfillment of their obligation. 7owever% the demand b" the creditor shall not be necessar" in order that dela" ma" e,ist* 3'5 /hen the obligation or the law e,pressl" so declare2 or 345 /hen from the nature and the circumstances of the obligation it appears that the designation of the time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract2 or 365 /hen demand would be useless% as when the obligor has rendered it be"ond his power to perform. +n reciprocal obligations% neither part" incurs in dela" if the other does not compl" or is not read" to compl" in a proper manner with what is incumbent upon him. ?rom the moment one of the parties fulfills his obligation% dela" b" the other begins. 'elay has nothing to do with *uality but only with punctuality. 'elay is the non/ ul illment o the obligation with respect to time. 4n raud and negligence, the *uestion is the *uality even i per ormed on time. 4n delay, even i the *uality is e$cellent but the per ormance is not in due time, the debtor is liable. )e*uisites o delay (+++ vs. 9oon4al6) -bligation is demandable and li*uidated 'elay is through ault or negligence Creditor re*uires per ormance either &udicially 7through court action8 or e$tra&udicially 7any communication by the creditor to debtor8.

4n reciprocal obligations 7obligations with a counterpart prestation8 which re*uire simultaneous per ormance, demand is still needed. G$at is t$e "orm o" suc$ demandH #ny communication o a party that he is ready and willing to comply with his obligation. 4 a ter receipt o demand and the other party does not comply with his obligation, he is in delay.

3 Einds o 'elay 1. 9ora solvendi 'elay in per ormance incurred by the debtor. )e*uisites6 a. The obligation is demandable and li*uidated

b. 'ebtor delays per ormance either because o culpa

dolo or

c. The creditor demands the per ormance either &udicially or e$tra&udicially General )ule* 'emand is necessary. persona8. Thus, no demand, no delay. 7mora solvendi ex

Exceptions: 7mora solvendi ex re8 #rticle 111A a. When the obligation or the law e$pressly so declares >ere setting o due date is not enough. This does not constitute automatic delay. There must be an e$press stipulation to the ollowing e##ectO 2Non/per ormance on that day is delay without need o# demand. (Dela Rosa vs. -PI)

b. When it appears rom the nature and circumstances o the obligation that time was a controlling motive or the establishment o the contract. Example: The wedding gown has to be ready be ore the wedding.

c. When demand would be useless, when obligor has rendered it beyond his power to per orm. Example: # sold the ruits o the mango plantation he already sold to 9 to C. 9 need not ma(e a demand on # to deliver the ruits since demand would be useless.

, ects o 9ora +olvedi a. When the obligation is to deliver a determinate thing, the ris( is placed on the part o the debtor 7#rticle 1110 8 b. 'amages c. )escissionH )esolution 7#rticle 11A18

2. 9ora accipiendi The creditor incurs in delay when debtor tenders payment or per ormance, but the creditor re uses to accept it without &ust cause. 9ora accipiendi is related to payment 7consignation8.

Art. **'%. When what is to be delivered is a determinate thing, the creditor, in addition to the right granted him by article 11?., may compel the debtor to ma(e the delivery. 4 the thing is indeterminate or generic, he may as( that the obligation be complied with at the e$pense o the debtor. 4 the obligor delays, or has promised to deliver the same thing to two or more persons who do not have the same interest, he shall be responsible or any ortuitous event until he has e ected the delivery.

)e*uisites6 a. #n o er o per ormance by the debtor who has the re*uired capacity b. The o er must be to comply with the prestation as it should be per ormed c. The creditor re uses the per ormance without &ust cause.

, ects o 9ora Accipiendi: a. )esponsibility o debtor or the thing is limited to raud and gross negligence b. 'ebtor is e$empted rom ris( o automatically pass to creditor loss o thing wHc thing

c. ,$penses incurred by debtor or preservation o a ter the delay shall be chargeable to creditor.

d. 4 the obligation has interest, debtor shall not have obligation to pay the same rom the time o the delay e. Creditor becomes liable or damages . 'ebtor may relieve himsel by consignation o the thing 3. ;ompensatio morae 'elay on both sides in reciprocal obligations, cancel each other out.

b. #ot Attri'uta'le to t"e De'tor 1non<culpa'le2 ?ortuitous event Art. 1174. 8,cept in cases e,pressl" specified b" the law% or when it is otherwise declared b" stipulation% or when the nature of the obligation re-uires the assumption of risk% no person shall be responsible for those events which could not be foreseen% or which% though foreseen% were inevitable. #lso governed by #rticle 1221 but is called loss there, a cause #o e$tinguishment o obligation. #lso called caso "ortuioto! "orce mar#eure! act o 2od. )e*uisites (,a6pil vs. ;A) 1. The cause o the un oreseen and une$pected occurrence, or the ailure to comply with his obligations, must be independent o the human will

Art. *&&*. 4 the thing has been lost or i the prestation has become impossible without the ault o the solidary debtors, the obligation shall be e$tinguished. 4 there was ault on the part o any one o them, all shall be responsible to the creditor, or the price and the payment o damages and interest, without pre&udice to their action against the guilty or negligent debtor. 4 through a ortuitous event, the thing is lost or the per ormance has become impossible a ter one o the solidary debtors has incurred in delay through the &udicial or e$tra&udicial demand upon him by the creditor, the provisions o the preceding paragraph shall apply.

2. 4t must be impossible to oresee the event which constitute the caso "ortuito, or i it can be oreseen, it must be impossible to avoid 3. The occurrence must be such as to render it impossible or the debtor to ul ill his obligation in a normal manner ;. The obligor must be ree rom any participation in the aggravation o the in&ury resulting to the creditor General )ule* When a debtor is unable to ul ill his obligation because o a ortuitous event or "orce ma#eure, he cannot be held liable or damages or non/per ormance. Exceptions: 1. When the law so provides 7i.e. #rticle 1110, :2 8 2. When there is e$press stipulation Fortuitous event yields to contrary stipulation. 3. When the nature o the obligation re*uires the assumption o ris( 7i.e. insurance contracts8 3. #ther Provisions laws. Art. 1175. =surious transactions shall be governed b" special

#rticle 11?0 is dead letter law because o the li ting o the ceiling on interest rates. Thus, usury has been decriminali3ed, but the decriminali3ation cannot be given retroactive e ect 7with respect to the civil aspect8. +ome decisions have struc( down high interests, not because they were usurious but because such rates were unconscionable. Correlate #rticle 11?0 with #rticles 1A0?, 1;13 and 1A11 .

Art. 1176. The receipt of the principal b" the creditor without reservation with respect to the interest% shall give rise to the presumption that said interest has been paid. The receipt of a later installment of a debt without reservation as to prior installments% shall likewise raise the presumption that such installments have been paid.

Article **'%! (&. 4 the obligor delays, or has promised to deliver the same thing to two or more persons who do not have the same interest, he shall be responsible or any ortuitous event until he has e ected the delivery.

Art. *2%1. Contracts and stipulations, under any cloa( or device whatever, intended to circumvent the laws against usury shall be void. The borrower may recover in accordance with the laws on usury. Art. *4*). 4nterest paid in e$cess o the interest allowed by the usury laws may be recovered by the debtor, with interest thereon rom the date o the payment. Art. *2'*. Usurious contracts shall be governed by the Usury 5aw and other special laws, so ar as they are not inconsistent with this Code.

2 =resumptions regarding6 a. 4nterest bearing debt =resumption that interest has been paid i the principal has been received without reservation regarding interest, =resumption that earlier installments have been paid i the later installment has been received without reservation regarding the previous installments.

b. 'ebt payable in installments

These are only rebuttable presumptions, you can prove through other evidence. Dou can prove mista(e.

Art. 1177. The creditors% after having pursued the propert" in possession of the debtor to satisf" their claims% ma" e,ercise all the rights and bring all the actions of the latter for the same purpose% save those which are inherent in his person2 the" ma" also impugn the acts which the debtor ma" have done to defraud them. +n#orcement o# *reditors Cemedies a. Nevy and e4ecution o# the debtors non /e$empt properties 7#rticles 11??, 2231 8 b. Accion su5rogatoria 7ubrogatory action premised on the theory that 2the debtor o# my debtor is my debtor. )e*uisites6 i. Creditor has a right o credit against the debtor. ii. Credit is due and demandable. iii. Failure o debtor to collect his own credit rom a third person either through malice or negligence. iv. 4nsu iciency o assets o the debtor to satis y the credit ors credit v. )ight 7o account8 is not intuitu personae c. Accion pauliana 7#rticles 13@./13@A8 )ight o creditors to rescind alienations by debtor which are pre&udicial to them to the e$tent o the pre&udice. Example: # donates land to C but he owes 9. # has no other property. 9 can rescind the donation to C. The donation is rescissible to the e$tent o the debt. )e*uisites6 i. There is a credit in avor o the plainti ii. The debtor has per ormed an act subse*uent to the contract, giving advantage to other persons.

Art. &&)'. The debtor is liable with all his property, present and uture, or the ul illment o his obligations, sub&ect to the e$emptions provided by law.

iii. The creditor is pre;udiced by the debtors act which are in #avor o third parties and rescission will bene it the creditor. iv. The creditor has no other legal remedy. v. The debtors acts are #raudulent. d. Accion directa # direct 7not subrogatory8 action by the creditor against his debtors debtor, a remedy which gives the creditor the prerogative to act in his own name, such as the actions o the lessor against the sublessee 7#rticle 1102 8, the laborer o an independent contractor < against the owner 7#rticle 1?2A 8, the principal against the subagent 7#rticle 1@A3 8, and the vendor/a/retro against the trans eree o the vendee 7#rticle 11.@ 8. This is an e$ception to the relativity o contracts. Example *: # lease 9 sub/lease C

There are two separate contracts here6 The contract o lease between # and 9 and the contract o sub/lease between 9 and C. C owes 9 =?.... 9 owes # =0.... -rdinarily, # cannot sue C since there is no relationship between them, but in #rticle 1102, # can sue C or =0.... Example &: #
(customer)

contract or a piece o wor(

9
(contractor)

contract o labor

C
(4or6er)

Art. *'%&. The sublessee is subsidiarily liable to the lessor or any rent due rom the lessee. Fowever, the sublessee shall not be responsible beyond the amount o rent due rom him, in accordance with the terms o the sublease, at the time o the e$tra/&udicial demand by the lessor. =ayments o rent in advance by the sublessee shall be deemed not to have been made, so ar as the lessorCs claim is concerned, unless said payments were e ected in virtue o the custom o the place.
<

Art. *1&2. Those who put their labor upon or urnish materials or a piece o wor( underta(en by the contractor have an action against the owner up to the amount owing rom the latter to the contractor at the time the claim is made. Fowever, the ollowing shall not pre&udice the laborers, employees and urnishers o materials6 718 =ayments made by the owner to the contractor be ore they are due" 728 )enunciation by the contractor o any amount due him rom the owner. This article is sub&ect to the provisions o special laws.

Art. */2). 4n the cases mentioned in !os. 1 and 2 o the preceding article, the principal may urthermore bring an action against the substitute with respect to the obligations which the latter has contracted under the substitution.

Art. *'0/. The vendor may bring his action against every possessor whose right is derived rom the vendee, even i in the second contract no mention should have been made o the right to repurchase, without pre&udice to the provisions o the >ortgage 5aw and the 5and )egistration 5aw with respect to third persons.

#gain, there are two separate contracts here6 The contract or a piece o wor( between # and 9 and the contract o labor between 9 and C. # owes 9 =1.,... which is not ully paid yet. 9 owes C =0... or unpaid wages. C can go a ter # directly or =0.... Art. 1178. >ubject to the laws% all rights ac-uired in virtue of an obligation are transmissible% if there has been no stipulation to the contrar". )ights are transmissible unless the rights are personal.

G. Di..erent ?in+s o. ,'li/ations 1. According to Demandabilit" 7#rticles 11?A/11A28 Art. 1179. 8ver" obligation whose performance does not depend upon a future or uncertain event% or upon a past event unknown to the parties% is demandable at once. 8ver" obligation which contains a resolutor" condition shall also be demandable% without prejudice to the effects of the happening of the event. Art. 1180. /hen the debtor binds himself to pa" when his means permit him to do so% the obligation shall be deemed to be one with a period% subject to the provisions of article ''CA. Art. 1181. +n conditional obligations% the ac-uisition of rights% as well as the e,tinguishment or loss of those alread" ac-uired% shall depend upon the happening of the event which constitutes the condition. Art. 1182. /hen the fulfillment of the condition depends upon the sole will of the debtor% the conditional obligation shall be void. +f it depends upon chance or upon the will of a third person% the obligation shall take effect in conformit" with the provisions of this Code. Art. 1183. +mpossible conditions% those contrar" to good customs or public polic" and those prohibited b" law shall annul the obligation which depends upon them. +f the obligation is divisible% that part thereof which is not affected b" the impossible or unlawful condition shall be valid. The condition not to do an impossible thing shall be considered as not having been agreed upon. Art. 1184. The condition that some event happen at a determinate time shall e,tinguish the obligation as soon as the time e,pires or if it has become indubitable that the event will not take place. Art. 1185. The condition that some event will not happen at a determinate time shall render the obligation effective from the moment the time indicated has elapsed% or if it has become evident that the event cannot occur.

+f no time has been fi,ed% the condition shall be deemed fulfilled at such time as ma" have probabl" been contemplated% bearing in mind the nature of the obligation. Art. 1186. The condition shall be deemed fulfilled when the obligor voluntaril" prevents its fulfillment. Art. 1187. The effects of a conditional obligation to give% once the condition has been fulfilled% shall retroact to the da" of the constitution of the obligation. 1evertheless% when the obligation imposes reciprocal prestations upon the parties% the fruits and interests during the pendenc" of the condition shall be deemed to have been mutuall" compensated. +f the obligation is unilateral% the debtor shall appropriate the fruits and interests received% unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different. +n obligations to do and not to do% the courts shall determine% in each case% the retroactive effect of the condition that has been complied with. Art. 1188. The creditor ma"% before the fulfillment of the condition% bring the appropriate actions for the preservation of his right. The debtor ma" recover what during the same time he has paid b" mistake in case of a suspensive condition. Art. 1189. /hen the conditions have been imposed with the intention of suspending the efficac" of an obligation to give% the following rules shall be observed in case of the improvement% loss or deterioration of the thing during the pendenc" of the condition* 3'5 +f the thing is lost without the fault of the debtor% the obligation shall be e,tinguished2 345 +f the thing is lost through the fault of the debtor% he shall be obliged to pa" damages2 it is understood that the thing is lost when it perishes% or goes out of commerce% or disappears in such a wa" that its e,istence is unknown or it cannot be recovered2 365 /hen the thing deteriorates without the fault of the debtor% the impairment is to be borne b" the creditor2 3;5 +f it deteriorates through the fault of the debtor% the creditor ma" choose between the rescission of the obligation and its fulfillment% with indemnit" for damages in either case2

3(5 +f the thing is improved b" its nature% or b" time% the improvement shall inure to the benefit of the creditor2 3@5 +f it is improved at the e,pense of the debtor% he shall have no other right than that granted to the usufructuar". Art. 1190. /hen the conditions have for their purpose the e,tinguishment of an obligation to give% the parties% upon the

fulfillment of said conditions% shall return to each other what the" have received. +n case of the loss% deterioration or improvement of the thing% the provisions which% with respect to the debtor% are laid down in the preceding article shall be applied to the part" who is bound to return. As for the obligations to do and not to do% the provisions of the second paragraph of article ''BA shall be observed as regards the effect of the e,tinguishment of the obligation. Art. 1191. The power to rescind obligations is implied in reciprocal ones% in case one of the obligors should not compl" with what is incumbent upon him. The injured part" ma" choose between the fulfillment and the rescission of the obligation% with the pa"ment of damages in either case. 7e ma" also seek rescission% even after he has chosen fulfillment% if the latter should become impossible. The court shall decree the rescission claimed% unless there be just cause authori$ing the fi,ing of a period. This is understood to be without prejudice to the rights of third persons who have ac-uired the thing% in accordance with articles '6B( and '6BB and the :ortgage !aw. Art. 1192. +n case both parties have committed a breach of the obligation% the liabilit" of the first infractor shall be e-uitabl" tempered b" the courts. +f it cannot be determined which of the parties first violated the contract% the same shall be deemed e,tinguished% and each shall bear his own damages. a. &ure # pure obligation is one which has neither a condition nor a term attached to it. 4t is one which is sub&ect to no contingency. # pure obligation is demandable at once 7#rticle 11?A8. # condition is a uture and uncertain event. #ll conditions are uture. $rticle ''9. mentions the term 2past event unknown to the parties. This has been critici3ed by many commentators. This is a contradiction in terms. The condition in a past even un(nown to the parties is (nowledge by the parties o the past event. 4n conditional obligation, the happening o the condition determines its birth or death. 4n term, the happening o the term determines its demandability. Types o Conditions i. 1. +uspensive The ul illment o a suspensive condition results in the ac*uisition o rights arising out o the obligation.

b. *on+itional

The condition that some event happen at a determinate time shall e$tinguish the obligation as soon as the time e$pires or i it has become indubitable that the event will not ta(e place 7#rticle 11@;8 The condition that some event will not happen at a determinate time shall render the obligation e ective rom the moment the time indicated has elapsed, or i it has become evident that the event cannot occur 7#rticle 11@08. The moment the suspensive condition happens, the obligation becomes e ective and en orceable. Fowever, the e ects o the obligation retroact to the moment when such obligation was constituted or created. 9y the principle o retroactivity, there ore, a iction is created whereby the binding tie o the conditional obligation is produced rom the time o its per ection, and not rom the happening o the condition 7#rticle 11@?8 The law does not re*uire the delivery or payment o the ruits or interests accruing be ore the happening o the suspensive condition. The right to the ruits o the thing is not within the principle o retroactivity o conditional obligations 7#rticle 11@?8 4 the obligation imposes reciprocal prestations, ruits and interest are deemed mutually compensated. Example: 4 promise to sell my mango plantation at =0...Hhectare i you pass the bar e$amination. 4 do not have to give you the ruits rom the time o the agreement to the release o the bar e$ams.

4 the obligation is unilateral, debtor appropriates the ruits. 4n obligations to do and not to do, the courts shall use sound discretion to determine the retroactive e ect o the ul illment o the condition 7#rticle 11@?8 The creditor may, be ore the ul illment o the condition, bring the appropriate actions or the preservation o his right st 7#rticle 11@@, 1 :8. I95 )eyes critici3es the use o the word st 2bring. The ' : o #rticle 11@@ does not limit itsel to ;udicial actions. Thus, the word 2take is better. The debtor who paid be ore the happening o the condition may recover only when he paid by mista(e and provided the action to recover is brought be ore the condition 7#rticle 11@@8. The ul illment o the resolutory condition results in the e$tinguishments o rights arising out o the obligation. 4 the resolutory condition is ul illed, the obligation is treated as i it did not e$ist. Thus, each party is bound to return to the other whatever he has received, so that they

2. Resolutor8

may be returned to their original condition be ore the creation o the obligation 7#rticle 11A.8. )esolution 7#rticle 11A18 is ound on the conditional obligations because i there is a breach, the breach is a resolutory condition which e$tinguishes the obligation. $rticle ''.' uses the term 2rescission. The better term is 2resolution. The term rescission is also #ound in $rticle 13@1 , rescissible contracts. )esolution is di erent rom rescission. )esolution is based on the non/ ul illment o the obligation. )escission is based on economic pre&udice. Furthermore, the character o resolution is principal and retaliatory while the character o rescission is subsidiary. This means that in resolution there is no need to show that there is no other remedy. 4n rescission, the plainti must show that there is no other recourse. The right o resolution applies to reciprocal obligations. # reciprocal obligation has 2 elements 1. 2 prestations arising rom the same source 2. ,ach prestation is designed to be the counterpart o the other #n e$ample o a reciprocal obligation is a contract o sale. +ummary o )ulings on )esolution 1. The right to obligations. resolve is in inherent in reciprocal

2. The breach o the obligation must be substantial. =roo o substantial breach is a prere*uisite or resolution. 3. The right o resolution can be e$ercised e$tra&udicially and will ta(e e ect upon communication to the de aulting party. This notice o resolution is necessary. ;. The e$ercise o this right can be the sub&ect o &udicial review. 0. Upon resolution, there must be mutual restitution o the ob&ect and its ruits The parties are returned to their original situation status =uo ante.

Art. *)/*. The ollowing contracts are rescissible6 718 Those which are entered into by guardians whenever the wards whom they represent su er lesion by more than one/ ourth o the value o the things which are the ob&ect thereo " 728 Those agreed upon in representation o absentees, i the latter su er the lesion stated in the preceding number" 738 Those underta(en in raud o creditors when the latter cannot in any other manner collect the claims due them" 7;8 Those which re er to things under litigation i they have been entered into by the de endant without the (nowledge and approval o the litigants or o competent &udicial authority" 708 #ll other contracts specially declared by law to be sub&ect to rescission.

1. 4 the aggrieved party has not per ormed the prestation and resolves e$tra&udicially, then all the aggrieved party has to do is to re use to per orm his prestation. ?. 4 the aggrieved party has per ormed the prestation, the aggrieved party can demand recovery. 4 the de aulting party re uses to return it, the aggrieved party must go to court in order to recover. 4n Ilingan vs.;A (+eptem5er &'! &00*) case, there was an o5iter dictum that the operative act that resolves a contract is the decree o court and the right should be e$ercised &udicially. =ro essor 9alane says this is wrong. Fowever, the ratio o the case said that the communication must be a notarial notice. 4n a potestative condition, the ul illment o the condition depends upon the will o a party to the obligation. 4 the condition depends upon the will o the creditor, then the obligation is valid. 4n this case, there is a vinculum #uris. The creditor can compel the debtor to per orm the obligation. Example: 4 will give you my pomelo plantation i establish permanent residence in 'avao. you

ii. 1. Potestative

This is a suspensive condition dependent on the sole will o the creditor. 4t becomes pure and demandable at once. #rticle 11@2 prohibits a suspensive potestative condition dependent on the will o the debtor. The entire obligation is void. Example: 4 will sell you my car i 4 want to. G$8 does o5ligationH it annul t$e entire

9ecause there is no &uridical tie. )emember, an obligation is one which has to be per ormed regardless o the will o the debtor. There is no element o compulsion. 4n the e$ample above, the creditor can never compel, can never have a cause o action. 4n reciprocal obligations, the law only tal(s about the irst prestation, the reciprocal prestation is not ta(en into consideration. 4n a casual condition, the ul illment o the condition depends rd upon chance andHor upon the will o a 3 person and not on the will o a party. Example: 4 will give you my house i the =hilippines renounces its oreign debt in 0 years. 7'ependent solely on the will o a third person or on chance8.

2. ;asual

3. 9ixed 4n a mi$ed condition, the ul illment o the condition depends partly upon the will o a party to the obligation and partly rd upon chance andHor the will o a 3 person. When the condition depends not only upon the will o the debtor, but also upon chance or will o the others, the obligation is valid. Example: 4 will give you my house i you marry him within 3 years. 7The condition here is a mi$ed condition. 4n this case, the condition o marriage depends partly on the rd creditor, a party to the obligation, and partly on a 3 person.8 The condition shall be deemed ul illed when the obligor voluntarily prevents its ul illment 7#rticle 11@18. The principle underlying constructive ul illment o conditions is that a party to a contract may not be e$cused rom per orming his promise by the non/occurrence o an event which he himsel prevented. )e*uisites 1. 4ntent o obligation the debtor to prevent ul illment o the

'octrine o Constructive Compliance

Where the act o the debtor, however, although voluntary, did not have or its purpose the prevention o the ul illment o the condition, it will not all under the doctrine o constructive compliance. The doctrine o constructive compliance applies to potestative and mi$ed conditions.

2. #ctual prevention o compliance iii. 1. Possi5le # condition is possible when it is capable o reali3ation according to nature, law, public policy or good customs. # condition is impossible when it is not capable o reali3ation according to nature, law, public policy or good customs. The e ect o an impossible condition is to annul the obligation 7#rticle 11@38. The e ect o an impossible condition regarding donations and succession is di erent. 4n donations and succession, an impossible condition is simply disregarded. The distinction can be e$plained by the act that #rticle 11@3 re ers to onerous obligation whereas donations and succession are gratuitous. Fowever, i the obligation is divisible and that part o the obligation is not una ected by the impossible condition, then the obligation is valid 7#rticle 11@38.

2. Impossi5le

Iustice =aras distinguishes as ollows6 1. =ositive condition to do something impossible Ooid condition and obligation 'isregard the condition, the obligation is valid Oalid condition and obligation 2. !egative condition not to do something impossible 3. !egative condition not to do something illegal

iv. 1. Positive # condition is positive when the condition involves the per ormance o an act. # condition is negative when the condition involves the non/ per ormance o an act. # condition is divisible when the condition is susceptible o partial reali3ation. # condition is indivisible when susceptible o partial reali3ation. the condition is not

2. ,egative

v. 1. Divisi5le

2. Indivisi5le

vi. 1. ;on#unctive # condition is con&unctive when there are several conditions, all o which must be reali3ed. # condition is alternative when there are several conditions, only one o which must be reali3ed. # condition is e$pressly. e$press when the condition is stated

2. Alternative

vii. 1. Express

2. Implied c. 7er # condition is implied when the condition is tacit. 7#rticles 11A3/11A@8

Art. 1193. #bligations for whose fulfillment a da" certain has been fi,ed% shall be demandable onl" when that da" comes. #bligations with a resolutor" period take effect at once% but terminate upon arrival of the da" certain. A da" certain is understood to be that which necessaril" come% although it ma" not be known when. must

+f the uncertaint" consists in whether the da" will come or not% the obligation is conditional% and it shall be regulated b" the rules of the preceding >ection.

Art. 1194. +n case of loss% deterioration or improvement of the thing before the arrival of the da" certain% the rules in article ''BC shall be observed. Art. 1195. An"thing paid or delivered before the arrival of the period% the obligor being unaware of the period or believing that the obligation has become due and demandable% ma" be recovered% with the fruits and interests. Art. 1196. /henever in an obligation a period is designated% it is presumed to have been established for the benefit of both the creditor and the debtor% unless from the tenor of the same or other circumstances it should appear that the period has been established in favor of one or of the other. Art. 1197. +f the obligation does not fi, a period% but from its nature and the circumstances it can be inferred that a period was intended% the courts ma" fi, the duration thereof. The courts shall also fi, the duration of the period when it depends upon the will of the debtor. +n ever" case% the courts shall determine such period as ma" under the circumstances have been probabl" contemplated b" the parties. #nce fi,ed b" the courts% the period cannot be changed b" them. Art. 1198. the period* The debtor shall lose ever" right to make use of

3'5 /hen after the obligation has been contracted% he becomes insolvent% unless he gives a guarant" or securit" for the debt2 345 /hen he does not furnish to the creditor the guaranties or securities which he has promised2 365 /hen b" his own acts he has impaired said guaranties or securities after their establishment% and when through a fortuitous event the" disappear% unless he immediatel" gives new ones e-uall" satisfactor"2

3;5 /hen the debtor violates an" undertaking% in consideration of which the creditor agreed to the period2 3(5 /hen the debtor attempts to abscond. # term is a length o time which, e$erting an in luence on an obligation as a conse*uence o &uridical acts, suspends its demandability or determines its e$tinguishment. # term is a uture and certain event 7i.e. death8 When the debtor binds himsel to pay when his means permit him to do so, the obligation is one with a term 7#rticle 11@.8. #lthough #rticle 11@. loo(s li(e a condition dependent on the sole will o the debtor, the law treats it as a term.

4 prepayment is made without the debtor being aware that the period had not yet arrived, then the thing and the ruits can be recovered 7#rticle 11A08. 4 prepayment is made and the debtor was aware that the period had not yet arrived, then the debtor waives the bene it o the term. #n obligation was entered on >ay 1, 2..2 between # and 9. The obligation is to be per ormed on -ctober 1, 2..2. # delivers on +eptember 1, 2..2 by mista(e to 9. # discovers his mista(e and tells 9 to return the ob&ect and the ruits delivered. #rticle 11A0 does not answer who is entitled to the ruits which have been produced in the meantime 7>ay 1, 2..2 to -ctober 1, 2..28. #ccording to the +panish Code, the debtor 7#8 can only ruits. There are 2 views6 i. The debtor is entitled to the ruits produced in the meantime 7Tolentino8 This is because delivery is not re*uired until -ctober 1.

ii. The creditor is entitled to the ruits since the obligation is demandable only when the period arrives This is because the obligation is already e$isting although it is not yet demandable.

=ro essor 9alane believes that the ruits belong to the debtor. Why would #rticle 11A0 allow the debtor to recover the ruits i he should still give them bac( a ter the term comes. When the obligation is prepayment o both sides reciprocal and there has been

4nstances when the Fruits Cannot be )ecovered i.

ii. When the obligation is a loan and the debtor is bound to pay interest iii. hen the period is e4clusively #or the creditors bene#it iv. When the debtor is aware o the period and pays anyway waiver The presumption is that the period is or the bene it o both the debtor and the creditor 7#rticle 11A18. The e ect o this presumption is that the creditor cannot demand payment be ore the period arrives nor can the debtor demand the creditor to accept payment be ore the period arrives. Example: # issues a promissory note to 9 demandable on -ctober 10. # cannot insist on prepayment nor can 9 insist that he be paid on +eptember. 4 the period is or the bene it o the creditor only, the creditor can demand per ormance at any time, but the debtor cannot compel him to accept payment be ore the period e$pires.

4 the period is or the bene it o the debtor only, the debtor can he may oppose a premature demand or payment, but may validly pay at any time be ore the period e$pires. When the obligation is worded such that payment it to be made 2within A months, the period is #or the bene#it o# the debtor. hen the obligation is worded such that payment is to be made 2on or be#ore, the period is #or the bene#it o# the debtor. When a ter the obligation has been contracted, the debtor becomes insolvent unless he gives a guaranty or security or the debt 7#rticle 11A@ 7188 The insolvency here need not be &udicial. insolvency. 4t can be actual

The debtor shall lose every right to ma(e use o the period6 i.

ii. When he does not urnish to the creditor the guaranties or securities which he has promised 7#rticle 11A@ 7288 iii. When by his own acts he has impaired the said guaranties or securities a ter their establishment, and when through a ortuitous event hey disappear, unless he immediately gives new ones e*ually satis actory 7#rticle 11A@ 7388 iv. When the debtor violates any underta(ing, in consideration o which the creditor agreed 7#rticle 11A@ 7;88 v. When the debtor attempts to abscond 7#rticle 11A@ 7088 vi. When the creditor is deceived on the substance or *uality o the thing pledged, the creditor may either claim another thing in its stead or demand immediate payment o the principal obligation 7#rticle 21.A8 Types o =eriods i. 1. +uspensive 7ex die8 The period is suspensive when the obligation becomes demandable only upon the arrival o the period. The period is resolutory when the per ormance terminate upon the arrival o the period. # period is legal when it is granted by law. # period is voluntary when it is stipulated by the parties. # period is &udicial when it is i$ed by the courts. 4 the obligation does not i$ a period, but rom its nature and the circumstances it can be in erred that a period was intended, the courts may i$ the duration thereo 7#rticle st 11A?, 1 :8. must

2. Resolutor8 (in diem8

ii. 1. Legal 2. >oluntar8 3. <udicial

2 steps involved in an action or i$ing a period6 1. The court should determine that the obligation does not i$ a period but it can be in erred that a period is intended due to the circumstances -) the period is dependent on debtors will. 2. Court shall decide what contemplated by the parties. period was probably

Court should ma(e an educated guess. Court should not i$ a period which it thin(s is air or reasonable but rather the period which was probably contemplated by the parties.

2enerally, you cannot as( or speci ic per ormance because i$ing a period contemplates something in the uture, hence to as( or speci ic per ormance would be illogical. 4nstances When Court >ay Fi$ a =eriod 1. #rticle 11A?, :1 Art. 1197$ %1. +f the obligation does not fi, a period% but from its nature and the circumstances it can be inferred that a period was intended% the courts ma" fi, the duration thereof. ,$ceptions a. #rticles 11@2 and 11@?, 1 sentence Art. 1682. The lease of a piece of rural land% when its duration has not been fi,ed% is understood to have been for all the time necessar" for the gathering of the fruits which the whole estate leased ma" "ield in one "ear% or which it ma" "ield once% although two or more "ears have to elapse for the purpose. Art. 1687$ 1 sentence. +f the period for the lease has not been fi,ed% it is understood to be from "ear to "ear% if the rent agreed upon is annual2 from month to month% if it is monthl"2 from week to week% if the rent is weekl"2 and from da" to da"% if the rent is to be paid dail". b. Pacto de retro sales 7#rticle 11.18 Art. 1606. The right referred to in article '@D'% in the absence of an e,press agreement% shall last four "ears from the date of the contract.
st st

>hould there be an agreement% the period cannot e,ceed ten "ears. 7owever% the vendor ma" still e,ercise the right to repurchase within thirt" da"s from the time final judgment was rendered in a civil action on the basis that the contract was a true sale with right to repurchase. c. Contract o services or an inde inite period Court cannot i$ a period or else it would amount to involuntary servitude.

2. #rticle 11A?, :2 Art. 1197$ %2. The courts shall also fi, the duration of the period when it depends upon the will of the debtor. 3. #rticle 11A1, :3 Art. 1191$ %3. The court shall decree the rescission claimed% unless there be just cause authori$ing the fi,ing of a period. ;. #rticle 11@?, 2 , 3 and ;
n+ nd rd th

sentences
r+ t"

Art. 1687$ 2 $ 3 an+ 4 sentences. 7owever% even though a monthl" rent is paid% and no period for the lease has been set% the courts ma" fi, a longer term for the lease after the lessee has occupied the premises for over one "ear. +f the rent is weekl"% the courts ma" likewise determine a longer period after the lessee has been in possession for over si, months. +n case of dail" rent% the courts ma" also fi, a longer period after the lessee has sta"ed in the place for over one month. 0. #rticle 11@. Art. 1180. /hen the debtor binds himself to pa" when his means permit him to do so% the obligation shall be deemed to be one with a period% subject to the provisions of Article ''CA. iii. 1. ,$press # period is e$press when the period is speci ically stated. # period is tacit when a person underta(es to do some wor( which can be done only during a particular season. 2. Tacit

iv. 1. .riginal 2. :race # grace period is an e$tension i$ed by the parties or by the court. # period is de inite when it re ers to a i$ed (nown date or time. # period is inde inite when it re ers to an event which will necessarily happen but the date o its happening is un(nown 7i.e. death8

v. 1. De"inite

2. Inde"inite

2. According to Pluralit" of #bject 7#rticles 11AA/12.18 Art. 1199. A person alternativel" bound b" different prestations shall completel" perform one of them. The creditor cannot be compelled to receive part of one and part of the other undertaking. Art. 1200. The right of choice belongs to the debtor% unless it has been e,pressl" granted to the creditor. The debtor shall have no right to choose those prestations which are impossible% unlawful or which could not have been the object of the obligation. Art. 1201. The choice shall produce no effect e,cept from the time it has been communicated. Art. 1202. The debtor shall lose the right of choice when among the prestations whereb" he is alternativel" bound% onl" one is practicable. Art. 1203. +f through the creditor9s acts the debtor cannot make a choice according to the terms of the obligation% the latter ma" rescind the contract with damages. Art. 1204. The creditor shall have a right to indemnit" for damages when% through the fault of the debtor% all the things which are alternativel" the object of the obligation have been lost% or the compliance of the obligation has become impossible. The indemnit" shall be fi,ed taking as a basis the value of the last thing which disappeared% or that of the service which last became impossible. Damages other than the value of the last thing or service ma" also be awarded.

Art. 1205. /hen the choice has been e,pressl" given to the creditor% the obligation shall cease to be alternative from the da" when the selection has been communicated to the debtor. =ntil then the responsibilit" of the debtor shall be governed b" the following rules* 3'5 +f one of the things is lost through a fortuitous event% he shall perform the obligation b" delivering that which the creditor should choose from among the remainder% or that which remains if onl" one subsists2 345 +f the loss of one of the things occurs through the fault of the debtor% the creditor ma" claim an" of those subsisting% or the price of that which% through the fault of the former% has disappeared% with a right to damages2 365 +f all the things are lost through the fault of the debtor% the choice b" the creditor shall fall upon the price of an" one of them% also with indemnit" for damages.

The same rules shall be applied to obligations to do or not to do in case one% some or all of the prestations should become impossible. Art. 1206. /hen onl" one prestation has been agreed upon% but the obligor ma" render another in substitution% the obligation is called facultative. The loss or deterioration of the thing intended as a substitute% through the negligence of the obligor% does not render him liable. Fut once the substitution has been made% the obligor is liable for the loss of the substitute on account of his dela"% negligence or fraud. a. Alternati(e #n obligation is alternative when several ob&ects or prestations are due, but the payment or per ormance o 1 o them would be su icient. # promises to deliver either 0.. (gs o rice or 1... liters o gas. The obligation is alternative. The debtor cannot per orm the obligation by giving 20. (gs o rice and 0.. liters o gas unless the creditor agrees. 4n which case there is a novation. General )ule* The right o choice the right to belongs to the debtor. Exceptions: i. When it is e$pressly granted to the creditor
rd

ii. When it is agreed upon by the parties that a 3 the choice

person shall ma(e

The act o ma(ing the choice is called concentration. -nce the choice has been made, then the obligation is concentrated in 1 ob&ect. Whoever has the right o choice must communicate it to the other party 7#rticle 12.18. The creditor has to communicate his choice to the debtor so that the debtor will (now. -n the other hand, in .ng :uan vs. ;entur8 Insurance, the +upreme Court said that the purpose or notice to the creditor is to give the creditor the opportunity to e$press his consent or to impugn the election made by the debtor. =ro essor

9alane does not agree with this statement since the creditor does not have the right to impugn, otherwise, the obligation would not be an alternative obligation. # better reason according to =ro essor 9alane is to give the creditor time to prepare. Example: The choice is either to give diamond ring or a >ercedes 9en3. The debtor should noti y the creditor so the creditor can either rent a sa ety deposit bo$ or prepare a garage. Fowever, according to =ro essor 9alane, the best reason is because once the choice is communicated, the obligation ceases to be alternative. The ris( o loss belongs to the creditor now. Choice 9elongs to the 'ebtor i. is hen through #ortuitous event or through the debtors acts, there only 1 prestation le t, the obligation ceases to be alternative 7#rticle 12.28. ii. When the choice o the debtor is limited throu gh the creditors own acts, then the debtor has the remedy o resolution 7#rticle 11A18 plus damages 7#rticle 12.38 iii. hen all the things are lost due to the debtors #ault, creditor can sue or damages 7#rticle 12.;8 the

iv. When some things are lost due to the debtors #ault but there are still some things remaining, then the debtor can choose #rom whats le t v. When all the things are lost due to a ortuitous event, the obligation is e$tinguished vi. When all but 1 o the things are lost due to a ortuitous event and the last ob;ect is lost through the debtors #ault, then the creditor can sue or damages vii. hen all but ' o# the things are lost through the debtors own acts and the last ob&ect is lost through a ortuitous event, the obligation is e$tinguished When 1 or some o the ob&ects are lost through ortuitous events, then the creditor chooses rom the remainder hen ' or some o# the ob;ects are lost due to the debtors #ault, the creditor may choose rom the remainder or get the value o any o the ob&ects lost plus damages in either case

Choice 9elongs to the Creditor 7#rticle 12.08 i. ii.

iii. hen all o# the things are lost due to the debtors #ault, the creditor can get the value o any o the ob&ects lost plus damages iv. hen some are lost through the debtors #ault, the cr editor chooses rom the remainder

v. When all the ob&ects are lost due to a ortuitous event, then the obligation is e$tinguished vi. the hen all the ob;ects are lost due to the creditors #ault,

obligation is e$tinguished

b. )acultati(e #n obligation is acultative when only 1 ob&ect or prestation has been agreed upon by the parties to the obligation, but the debtor may deliver or render another in substitution. Facultative obligations bear a resemblance to alternative obligations particularly when the choice in an alternative obligation is with the debtor. 4n a acultative obligation, the right o choice is always with the debtor. 4n an alternative obligation, i 1 o the prestations is impossible, then there are other choices. 4n a acultative obligation, i the principal obligation is impossible, then everything is annulled. 4n theory, it is easy to distinguish a acultative obligation rom an alternative obligation. 4n practice, it is di icult to do so since most o the time, the words are ambiguous. For e$ample, 4 promise to deliver my Fonda #ccord, but 4 reserve my right to substitute this with my 2old )ole$. 4n this case, it is not very clear whether the obligation is alternative or acultative. #ccording to =ro essor 9alane, the rule is that one must loo( at the circumstances o the obligation. 4 it is impossible to determine which one, then the doubt should be resolved in the avor o an alternative obligation since its e ects are less radical.

3. According to Pluralit" of >ubject 7#rticles 12.?/12228 Art. 1207. The concurrence of two or more creditors or of two or more debtors in one and the same obligation does not impl" that each one of the former has a right to demand% or that each one of the latter is bound to render% entire compliance with the prestation. There is a solidar" liabilit" onl" when the obligation e,pressl" so states% or when the law or the nature of the obligation re-uires solidarit". Art. 1208. +f from the law% or the nature or the wording of the obligations to which the preceding article refers the contrar" does not appear% the credit or debt shall be presumed to be divided into as man" shares as there are creditors or debtors% the credits or debts being considered distinct from one another% subject to the )ules of Court governing the multiplicit" of suits. Art. 1209. +f the division is impossible% the right of the creditors ma" be prejudiced onl" b" their collective acts% and the debt can be enforced onl" b" proceeding against all the debtors. +f one of the latter should be insolvent% the others shall not be liable for his share. Art. 1210. The indivisibilit" of an obligation does not necessaril" give rise to solidarit". 1or does solidarit" of itself impl" indivisibilit". Art. 1211. >olidarit" ma" e,ist although the creditors and the debtors ma" not be bound in the same manner and b" the same periods and conditions.

Art. 1212. 8ach one of the solidar" creditors ma" do whatever ma" be useful to the others% but not an"thing which ma" be prejudicial to the latter. Art. 1213. A solidar" creditor cannot assign his rights without the consent of the others. Art. 1214. The debtor ma" pa" an" one of the solidar" creditors2 but if an" demand% judicial or e,trajudicial% has been made b" one of them% pa"ment should be made to him. Art. 1215. 1ovation% compensation% confusion or remission of the debt% made b" an" of the solidar" creditors or with an" of the solidar" debtors% shall e,tinguish the obligation% without prejudice to the provisions of article '4'C. The creditor who ma" have e,ecuted an" of these acts% as well as he who collects the debt% shall be liable to the others for the share in the obligation corresponding to them. Art. 1216. The creditor ma" proceed against an" one of the solidar" debtors or some or all of them simultaneousl". The demand made against one of them shall not be an obstacle to those which ma" subse-uentl" be directed against the others% so long as the debt has not been full" collected. Art. 1217. Pa"ment made b" one of the solidar" debtors e,tinguishes the obligation. +f two or more solidar" debtors offer to pa"% the creditor ma" choose which offer to accept. 7e who made the pa"ment ma" claim from his co.debtors onl" the share which corresponds to each% with the interest for the pa"ment alread" made. +f the pa"ment is made before the debt is due% no interest for the intervening period ma" be demanded. /hen one of the solidar" debtors cannot% because of his insolvenc"% reimburse his share to the debtor pa"ing the obligation% such share shall be borne b" all his co.debtors% in proportion to the debt of each. Art. 1218. Pa"ment b" a solidar" debtor shall not entitle him to reimbursement from his co.debtors if such pa"ment is made after the obligation has prescribed or become illegal. Art. 1219. The remission made b" the creditor of the share which affects one of the solidar" debtors does not release the latter from his responsibilit" towards the co.debtors% in case the debt had been totall" paid b" an"one of them before the remission was effected. Art. 1220. The remission of the whole obligation% obtained b" one of the solidar" debtors% does not entitle him to reimbursement from his co.debtors.

Art. 1221. +f the thing has been lost or if the prestation has become impossible without the fault of the solidar" debtors% the obligation shall be e,tinguished. +f there was fault on the part of an" one of them% all shall be responsible to the creditor% for the price and the pa"ment of damages and interest% without prejudice to their action against the guilt" or negligent debtor. +f through a fortuitous event% the thing is lost or the performance has become impossible after one of the solidar" debtors has incurred in dela" through the judicial or e,trajudicial demand upon him b" the creditor% the provisions of the preceding paragraph shall appl". Art. 1222. A solidar" debtor ma"% in actions filed b" the creditor% avail himself of all defenses which are derived from the nature of the obligation and of those which are personal to him% or pertain to his own share. /ith respect to those which personall" belong to the others% he ma" avail himself thereof onl" as regards that part of the debt for which the latter are responsible. a. 5in/le #n obligation is single when there is only 1 debtor and 1 creditor. #n obligation is &oint when each o the debtor is liable only or a proportional part o the debt, and each creditor is entitled only to a partial part o the credit. # &oint obligation is also called mancomunada, pro rata, mancomunada simple. General )ule* onerous. Exceptions: i. #greement o the parties ii. 5aw 7i.e. tort easors are solidarily liable8 iii. !ature o the obligation #ccording to many commentators, this is super luous since a solidary obligation arises because o law. The obligation is &oint since &oint obligations are less b. Aoint

E++E,7IAL ,A7CRE: There are as many obligations as there are creditors multiplied by as many debtors. Types o Ioint -bligations i. Active #oint 4n active &oint, there are multiple creditors. #, 9, and C are creditors, and N is the debtor. 4 the obligation is &oint, there are 3 obligations Gs obligation to $, Gs obligation to %, and Gs obligation to *.

The demand o 1 creditor on 1 debtor will not constitute a demand on the others. The prescription o 1 o the debts will not a ect the other debts. 4n passive &oint, there are multiple debtors. N, D, and M are debtor, and # is the creditor. 4 the obligation is &oint, there are 3 obligations Gs obligation to $, Fs obligation to $, and Rs obligation to $. The demand o 1 creditor on 1 debtor will not constitute a demand on the others. The prescription o 1 o the debts will not a ect the other debts. The insolvency o 1 o the debtors will not a ect the burden o the other debtors. 4n mi$ed &oint, there are multiple creditors and debtors. N, D, and M are debtors, and #, 9, and C are the creditors. 4 the obligation is &oint, there are A obligations Gs obligation to #, Gs obligation to %, Gs obligation to *, Fs obligation $, Fs obligation to %, Fs obligation to *, Rs obligation to $, Rs obligation to %, and Rs obligation to *.

ii. Passive #oint

iii. 9ixed #oint

c. 5oli+ar! #n obligation is solidary when any o the debtors can be hled liable or the entire obligation, and any o the creditors is entitled to demand the entire obligation. # solidary obligation is also called &oint and several, &oint and individual, and in solidum. I# a promissory says, 2I promise to pay, and it is signed by H, % , and >, then the obligation is solidary. #n obligation is solidary when i. The parties so agree ii. When the law so provides 7i.e. tort easors are solidarily liable8 iii. When nature o the obligation re*uires the obligation to be solidary #ccording to many commentators, this is super luous since a solidary obligation arises because o law.

Types o +olidary -bligations i. Active solidar8 4n active solidary, there are multiple creditors. Characteristics o #ctive +olidary # credit once paid is shared e*ually among the creditors unless a di erent intention appears.

The debtor may pay any o the creditors, but i any demand, &udicial or e$tra&udicial is made on him, he must pay only to the one demanding payment 7#rticle 121;8. #rticle 121; can be open to abuse. For e$ample, i # writes D demanding the per ormance o the obligation and # ta(es no urther action, 9 and C cannot demand rom D. This is open to collusion. +uppose #, 9, and C are creditors o N. # demands the payment o the loan worth =A,.... N instead pays to 9. The payment to 9 will be treated as a rd payment to a 3 person. There ore, N must still pay # the amount o the loan minus the share o 9. +o, N has to pay =1,... to #.

ii. Passive solidar8 4n passive solidary, there are multiple debtors. Characteristics o =assive +olidary ,ach debtor may be re*uired to pay the entire obligation but a ter payment, he can recover rom his co/debtors their respective shares. 4n mi$ed solidary, there are multiple debtors and creditors. Characteristics o >i$ed +olidary # credit once paid is shared e*ually among the creditors unless a di erent intention appears. The debtor may pay any o the creditors, but i any demand, &udicial or e$tra&udicial, is made on him, he must pay only to the one demanding payment 7#rticle 121;8. #ccording to =ro essor 9alane, #rticle 121; is problematic. For e$ample, N owes #, 9 and C. 9 ma(es an e$tra&udicial demand on N. N cannot pay # or C anymore. The problem is when 9 does not ollow up the demand, it can (eep the obligation in suspension inde initely. The rule in the +panish Code was that the debtor cannot pay the other non/demanding solidary creditors only i one o the solidary creditor ma(es a &udicial demand. +uppose the debtor upon whom the demand is made pays a creditor who did not ma(e a demand. The payment is considered a payment to a third person. There ore the debtor can still be made to pay by the one who made the demand on him. Example: N owes # and 9. 9 demanded rom N. N pays #. N must still pay 9 =1.... 9ut the payment to the demanding creditor can be reduced by the share o the paid creditor.

iii. 9ixed solidar8

The debtor can still recover rom the paid creditor 7un&ust enrichment8. +uppose # and 9 are creditors while N and D are debtors. # demands rom D. !ow, N pays 9. The payment o N to 9 e$tinguishes the entire solidary obligation. N is not bound by the demand by # on D. There is no violation o #rticle 121;.

,ach debtor may be re*uired to pay the entire obligation but a ter payment, he can recover rom his co/debtors their respective shares.

4s there a con lict between #rticle 1212 and #rticle 1210 % #rticle 1212 provides that each o the solidary creditors may do whatever may be use ul to the others, but not anything which may be pre&udicial to the latter. 9ut #rticle 1210 allows novation, compensation, con usion or remission on the part o the solidary creditor. Why% #ccording to =ro essor 9alane, this is absurd. -ne way o reconciling is that under #rticle 1210, any creditor can remit or condone the obligation. 9ut because the obligation is e$tinguished, the condoning creditor must be liable or the other creditors share. "ere, there is no pre;udice. Fowever, another problem arises i becomes insolvent. the condoning creditor later on

Art. 1219. The remission made b" the creditor of the share which affects one of the solidar" debtors does not release the latter from his responsibilit" towards the co.debtors% in case the debt had been totall" paid b" an"one of them before the remission was effected. # is the creditor o W, N, D, and M. W, N, D, and M owe # =1,.... The obligation is solidary. $ remits Fs share =1,0... # can go a ter N or only =;,0... The remission bene its N initially since N only has to pay =;,0.. instead o 1,.... Fowever, N can only recover =3,... rom W and M. # is the creditor o W, N, D, and M. W, N, D, and M owe # =1,.... The obligation is solidary. $ remits Fs share =1,0... # can go a ter D or the balance since D is still a solidary debtor or the balance. -therwise,

Art. *&*&. ,ach one o the solidary creditors may do whatever may be use ul to the others, but not anything which may be pre&udicial to the latter. Art. *&*%. !ovation, compensation, con usion or remission o the debt, made by any o the solidary creditors or with any o the solidary debtors, shall e$tinguish the obligation, without pre&udice to the provisions o article 121A. The creditor who may have e$ecuted any o these acts, as well as he who collects the debt, shall be liable to the others or the share in the obligation corresponding to them. #rt. 1210. !ovation, compensation, con usion or remission o the debt, made by any o the solidary creditors or with any o the solidary debtors, shall e$tinguish the obligation, without pre&udice to the provisions o article 121A. The creditor who may have e$ecuted any o these acts, as well as he who collects the

debt, shall be liable to the others or the share in the obligation corresponding to them.

the e ect o remission would be e$tended. Fowever, D can recover =;,0.. rom W, N, and M. # is the creditor o W, N, D, and M. W, N, D, and M owe # =1,.... The obligation is solidary. $ remits Fs share =1,0... M becomes insolvent. # sues W or the balance o =;,0... #rt. 121? must be applied. Thus, the insolvency o M is shouldered by W, N, and D. +o, W can recover =2,... rom N and =0.. rom D instead o collecting =3,.... W has to shoulder =0.. as a loss due to Rs insolvency. 3 Einds o 'e enses i. )eal de enses These are de enses derived rom the nature o the obligation. # real de ense is a total de ense. 4t bene its all the debtors. =ersonal de enses may either be total or partial de enses. #n e$ample o a total personal de ense is i the consent o the debtors were all vitiated. #n e$ample o a partial de ense is that a certain amount is not yet due. 4t is partial since there may be amounts which are already due. Thus, the debtor has to pay or those amounts which are due. The debtor can only avail himsel o these de enses only with regard to the part o the debt which his co/debtors are responsible or. These de enses are partial.

ii. =ersonal de enses

iii. 'e enses which are personal to the other co/debtors

The debtor sued can invo(e all three (inds o de enses. The di erence is whether such de ense would result in total or partial e$culpation.

;. According to Performance 7#rticles 1223/12208 Art. 1223. The divisibilit" or indivisibilit" of the things that are the object of obligations in which there is onl" one debtor and onl" one creditor does not alter or modif" the provisions of Chapter 4 of this Title. Art. 1224. A joint indivisible obligation gives rise to indemnit" for damages from the time an"one of the debtors does not compl" with his undertaking. The debtors who ma" have been read" to fulfill their promises shall not contribute to the indemnit" be"ond the corresponding portion of the price of the thing or of the value of the service in which the obligation consists. Art. 1225. ?or the purposes of the preceding articles% obligations to give definite things and those which are not susceptible of partial performance shall be deemed to be indivisible.

/hen the obligation has for its object the e,ecution of a certain number of da"s of work% the accomplishment of work b" metrical units% or analogous things which b" their nature are susceptible of partial performance% it shall be divisible. 7owever% even though the object or service ma" be ph"sicall" divisible% an obligation is indivisible if so provided b" law or intended b" the parties. +n obligations not to do% divisibilit" or indivisibilit" shall be determined b" the character of the prestation in each particular case. 'ivisible and indivisible obligations have nothing to do with the ob&ect o the prestation. # common misconception is i the ob&ect o the prestation is divisible, then the obligation is also divisible. #n obligation is divisible when it is susceptible to partial per ormance. #n obligation is indivisible when it cannot be validly per ormed in parts.

a. 'ivisible b. 4ndivisible General )ule* -bligations are indivisible. Exceptions: i. When the parties provide otherwise 7#rticles 1220, 3 :, 12;@ 8
rd

ii. When the nature o the obligation necessarily entails the per ormance o the obligation in parts Example: Firing a security guard to guard rom @pm to 2am daily or 1 months. This obligation cannot be per ormed indivisibly. Dou cant compress time. When the obligation has or its ob&ect the e$ecution o a certain number o days o wor(, the accomplishment o wor( by metrical units, or analogous things, which by their nature are susceptible o nd partial per ormance, it shall be divisible 7#rticle 1220, 2 :8 Exception to t"e Exception: Fowever, even though the ob&ect or service may be physically divisible, an obligation is indivisible i 1. +o provided by law" or 2. 4ntended by the parties. iii. When the law provides otherwise There are provisions on payment which provide that per ormance may be divisible.

'ivisibility o the ob&ect does not mean that the obligation is also divisible. 9ut indivisibility o the ob&ect necessarily means an indivisible obligation.

Art. *&4/. Unless there is an e$press stipulation to that e ect, the creditor cannot be compelled partially to receive the prestations in which the obligation consists. !either may the debtor be re*uired to ma(e partial payments. Fowever, when the debt is in part li*uidated and in part unli*uidated, the creditor may demand and the debtor may e ect the payment o the ormer without waiting or the li*uidation o the latter.

The test o divisibility o an obligation is whether or not it is susceptible o partial per ormance. For e$ample, i N is supposed to deliver 1... (ilos o sugar, this does not mean that N can deliver the sugar in installments.

0. According to >anction for Freach 7#rticles 1221/123.8 Art. 1226. +n obligations with a penal clause% the penalt" shall substitute the indemnit" for damages and the pa"ment of interests in case of noncompliance% if there is no stipulation to the contrar". 1evertheless% damages shall be paid if the obligor refuses to pa" the penalt" or is guilt" of fraud in the fulfillment of the obligation. The penalt" ma" be enforced onl" when it is demandable in accordance with the provisions of this Code. Art. 1227. The debtor cannot e,empt himself from the performance of the obligation b" pa"ing the penalt"% save in the case where this right has been e,pressl" reserved for him. 1either can the creditor demand the fulfillment of the obligation and the satisfaction of the penalt" at the same time% unless this right has been clearl" granted him. 7owever% if after the creditor has decided to re-uire the fulfillment of the obligation% the performance thereof should become impossible without his fault% the penalt" ma" be enforced. Art. 1228. Proof of actual damages suffered b" the creditor is not necessar" in order that the penalt" ma" be demanded. Art. 1229. The judge shall e-uitabl" reduce the penalt" when the principal obligation has been partl" or irregularl" complied with b" the debtor. 8ven if there has been no performance% the penalt" ma" also be reduced b" the courts if it is ini-uitous or unconscionable. Art. 1230. The nullit" of the penal clause does not carr" with it that of the principal obligation. The nullit" of the principal obligation carries with it that of the penal clause. a. #o penal clause b. 9it" penal clause # penal clause is an accessory underta(ing to assume greater liability in case o breach (+++ vs. 9oon4al6). =enal clauses are governed by #rticles 2221/222@ , the provisions on li*uidated damages since a penal clause is the same as li*uidated damages (Lam5ert vs. ?ox).

Art. &&&'. 5i*uidated damages are those agreed upon by the parties to a contract, to be paid in case o breach thereo . Art. &&&1. 5i*uidated damages, whether intended as an indemnity or a penalty, shall be e*uitably reduced i they are ini*uitous or unconscionable.

=enal clauses may be reduced by the courts i unconscionable. 2 Functions o a =enal Clause 7+++ vs. 9oon4al68 i. To provide li*uidated damages The creditor can demand li*uidated damages without having to prove actual damages. The only limitation that the courts will reduce the li*uidated damages i the same is scandalously unconscionable.

ii. To strengthen the coercive orce o the obligation by the threat o greater responsibility in case o breach +tipulates a penalty which is greater than one without a penal clause. Thus, Ro5es@?rancisco states that ;J interest is not a penal clause.

2 Characteristics o a =enal Clause i. +ubsidiary or alternative 7#rticle 122?8 General )ule* Upon breach o the obligation, the creditor has to choose whether to demand the principal or the penalty. Exception: The principal obligation and the penalty can be demanded when the penal clause is &oint or cumulative. This occurs when it is the creditor has been clearly granted such nd right 7#rticle 122?, 2 sentence8, either e$pressly or impliedly. The implied right must be one ascertainable rom the nature o the obligation. #n e$ample is in the construction industry where the contractor must pay the penalty i the wor( is completed a ter the stipulated time rame but must also inish the agreed construction. General )ule* The penalty clause ta(es the place o other damages ?thats why in imposing a penalty clause, make sure that the penalty is sti 8. Exception: 9oth the penalty and actual damages may be recovered in the ollowing6 1. ,$press stipulation 2. )e usal by the debtor to pay the penalty 3. The debtor is guilty o the obligation. raud 7malice8 in the per ormance o

ii. ,$clusive 7#rticle 12218

4n Pamintuan vs. ;A! the +upreme Court said that the e$cess o damages absorbs the penalty. =ro essor 9alane said that this is a wrong application. Dou can demand both the e$cess and the penalty.

Art. &&&/. When the breach o the contract committed by the de endant is not the one contemplated by the parties in agreeing upon the li*uidated damages, the law shall determine the measure o damages, and not the stipulation.

7. Extin/uis"

ent o. ,'li/ations

Art. 1231. #bligations are e,tinguished* 3'5 F" pa"ment or performance* 345 F" the loss of the thing due* 365 F" the condonation or remission of the debt2 3;5 F" the confusion or merger of the rights of creditor and debtor2 3(5 F" compensation2 3@5 F" novation. #ther causes of e,tinguishment of obligations% such as annulment% rescission% fulfillment of a resolutor" condition% and prescription% are governed elsewhere in this Code. 1. Pa"ment or Performance 7#rticles 1232 12018 Art. 1232. Pa"ment means not onl" the deliver" of mone" but also the performance% in an" other manner% of an obligation. Art. 1233. A debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been completel" delivered or rendered% as the case ma" be. Art. 1234. +f the obligation has been substantiall" performed in good faith% the obligor ma" recover as though there had been a strict and complete fulfillment% less damages suffered b" the obligee. Art. 1235. /hen the obligee accepts the performance% knowing its incompleteness or irregularit"% and without e,pressing an" protest or objection% the obligation is deemed full" complied with. Art. 1236. The creditor is not bound to accept pa"ment or performance b" a third person who has no interest in the fulfillment of the obligation% unless there is a stipulation to the contrar". /hoever pa"s for another ma" demand from the debtor what he has paid% e,cept that if he paid without the knowledge or against the will of the debtor% he can recover onl" insofar as the pa"ment has been beneficial to the debtor. Art. 1237. /hoever pa"s on behalf of the debtor without the knowledge or against the will of the latter% cannot compel the creditor to subrogate him in his rights% such as those arising from a mortgage% guarant"% or penalt". Art. 1238. Pa"ment made b" a third person who does not intend to be reimbursed b" the debtor is deemed to be a donation% which re-uires the debtor9s consent. Fut the pa"ment is in an" case valid as to the creditor who has accepted it.

Art. 1239. +n obligations to give% pa"ment made b" one who does not have the free disposal of the thing due and capacit" to alienate it shall not be valid% without prejudice to the provisions of article ';4A under the Title on H1atural #bligations.H Art. 1240. Pa"ment shall be made to the person in whose favor the obligation has been constituted% or his successor in interest% or an" person authori$ed to receive it. Art. 1241. Pa"ment to a person who is incapacitated to administer his propert" shall be valid if he has kept the thing delivered% or insofar as the pa"ment has been beneficial to him. Pa"ment made to a third person shall also be valid insofar as it has redounded to the benefit of the creditor. >uch benefit to the creditor need not be proved in the following cases* 3'5 +f after the pa"ment% the third person ac-uires the creditor9s rights2 345 +f the creditor ratifies the pa"ment to the third person2 365 +f b" the creditor9s conduct% the debtor has been led to believe that the third person had authorit" to receive the pa"ment. Art. 1242. Pa"ment made in good faith to an" person in possession of the credit shall release the debtor. Art. 1243. Pa"ment made to the creditor b" the debtor after the latter has been judiciall" ordered to retain the debt shall not be valid. Art. 1244. The debtor of a thing cannot compel the creditor to receive a different one% although the latter ma" be of the same value as% or more valuable than that which is due. +n obligations to do or not to do% an act or forbearance cannot be substituted b" another act or forbearance against the obligee9s will. Art. 1245. Dation in pa"ment% whereb" propert" is alienated to the creditor in satisfaction of a debt in mone"% shall be governed b" the law of sales. Art. 1246. /hen the obligation consists in the deliver" of an indeterminate or generic thing% whose -ualit" and circumstances have not been stated% the creditor cannot demand a thing of superior -ualit". 1either can the debtor deliver a thing of inferior -ualit". The purpose of the obligation and other circumstances shall be taken into consideration. Art. 1247. =nless it is otherwise stipulated% the e,trajudicial e,penses re-uired b" the pa"ment shall be for the account of the debtor. /ith regard to judicial costs% the )ules of Court shall govern. Art. 1248. =nless there is an e,press stipulation to that effect% the creditor cannot be compelled partiall" to receive the prestations in

which the obligation consists. 1either ma" the debtor be re-uired to make partial pa"ments. 7owever% when the debt is in part li-uidated and in part unli-uidated% the creditor ma" demand and the debtor ma" effect the pa"ment of the former without waiting for the li-uidation of the latter. Art. 1249. The pa"ment of debts in mone" shall be made in the currenc" stipulated% and if it is not possible to deliver such currenc"% then in the currenc" which is legal tender in the Philippines. The deliver" of promissor" notes pa"able to order% or bills of e,change or other mercantile documents shall produce the effect of pa"ment onl" when the" have been cashed% or when through the fault of the creditor the" have been impaired. +n the meantime% the action derived from the original obligation shall be held in the abe"ance. Art. 1250. +n case an e,traordinar" inflation or deflation of the currenc" stipulated should supervene% the value of the currenc" at the time of the establishment of the obligation shall be the basis of pa"ment% unless there is an agreement to the contrar". Art. 1251. the obligation. Pa"ment shall be made in the place designated in

There being no e,press stipulation and if the undertaking is to deliver a determinate thing% the pa"ment shall be made wherever the thing might be at the moment the obligation was constituted. +n an" other case the place of pa"ment shall be the domicile of the debtor. +f the debtor changes his domicile in bad faith or after he has incurred in dela"% the additional e,penses shall be borne b" him. These provisions are without prejudice to venue under the )ules of Court. 5i(e obligee and creditor, payment and per ormance are twin terms. =ayment re ers to obligations to give while per ormance re ers to obligations to do. =ayment and per ormance is the paradigmatic mode. When obligations are entered into, the parties e$pect payment or per ormance. #ll other modes o e$tinguishing obligations are abnormal modes. )e*uisites o =ayment a. As to prestation i. Identit8 4dentity means that the very prestation must be per ormed. For e$ample, i the obligation is to give a car, one cannot ul ill the obligation pay giving a house.

4 the prestation is speci ic, the debtor must give or deliver the speci ic thing which was agreed upon 7#rticle 12;; 8. 4 the prestation is generic, the creditor cannot demand a thing o superior *uality. Fowever, the debtor cannot give a thing o in erior *uality 7#rticle 12;1 8. The payment o debts in money shall be made in the currency stipulated, and i it not possible to deliver such currency, then in the currency which is legal tender in the =hilippines 7#rticle st 12;A , 1 :8. ).#. !o. 02A has been repealed by ).#. !o. @1@3 which allows payment in di erent currency. Fowever, in the absence o an agreement, payment shall be made in =.

!egotiable papers and other commercial documents can be re used by the creditor unless there is stipulation to the contrary. 4 the negotiable papers and other commercial documents are accepted by the creditor, it has only a provisional e ect. There nd is payment only in the ollowing 7#rticle 12;A , 2 :8. 1. When they have been honored and cashed" or 2. When through the impaired ault o the creditor, they have been

4n the case o ,A9AR;.! the chec( must be the chec( o another person, not a party, be ore there will be impairment. For e$ample, # gave 9 a chec( as payment or a loan. 9 did not encash the chec( as a result o which, the chec( became stale. There is no impairment here. 9 can still as( # or payment o the loan. Fowever, i 9 endorsed a chec( made by # to C as payment or a loan and C did not encash the chec( which became stale, then C can no longer as( 9 to pay him again.

Art. *&44. The debtor o a thing cannot compel the creditor to receive a di erent one, although the latter may be o the same value as, or more valuable than that which is due. 4n obligations to do or not to do, an act or orbearance cannot be substituted by another act or orbearance against the obligeeCs will.

Art. *&4'. When the obligation consists in the delivery o an indeterminate or generic thing, whose *uality and circumstances have not been stated, the creditor cannot demand a thing o superior *uality. !either can the debtor deliver a thing o in erior *uality. The purpose o the obligation and other circumstances shall be ta(en into consideration.

Art. *&42. The payment o debts in money shall be made in the currency stipulated, and i it is not possible to deliver such currency, then in the currency which is legal tender in the =hilippines. The delivery o promissory notes payable to order, or bills o e$change or other mercantile documents shall produce the e ect o payment only when they have been cashed, or when through the ault o the creditor they have been impaired. 4n the meantime, the action derived rom the original obligation shall be held in the abeyance.

4n the case o Paci"ic 7im5er! the +upreme Court said that a certi#ied check or a managers check is considered as good as cash. 9ut newer cases say that such instruments are not considered legal tender and thus, the creditor can re use to accept. 3or e4ample, $ gives % a managers check and bank closes or a ban( holiday. #rticle 120. was applied only during the Iapanese occupation. ,$ceptions to the )e*uirement o 4dentity 1. Dacion en pago 7#rticle 12;08 Art. 1245. Dation in pa"ment% whereb" propert" is alienated to the creditor in satisfaction of a debt in mone"% shall be governed b" the law of sales. 2. !ovation
<

ii. Integrit8 4dentity means that the entire prestation must be per ormed completeness 7#rticle 1233 8 ,$ceptions to 4ntegrity 1. +ubstantial compliance in good aith 7#rticle 123;8 Art. 1234. +f the obligation has been substantiall" performed in good faith% the obligor ma" recover as though there had been a strict and complete fulfillment% less damages suffered b" the obligee. 2. Waiver 7#rticle 12308 Art. 1235. /hen the obligee accepts the performance% knowing its incompleteness or irregularit"% and without e,pressing an" protest or objection% the obligation is deemed full" complied with. 3. 4n application o payments i the debts are e*ually onerous nd 7#rticle 120;, 2 :8 Art. 1254$ 2 %. +f the debts due are of the same nature and burden% the pa"ment shall be applied to all of them proportionatel".
n+

Art. *&%0. 4n case an e$traordinary in lation or de lation o the currency stipulated should supervene, the value o the currency at the time o the establishment o the obligation shall be the basis o payment, unless there is an agreement to the contrary.

Art. *&)). # debt shall not be understood to have been paid unless the thing or service in which the obligation consists has been completely delivered or rendered, as the case may be.

iii. 4ndivisibility 4ndivisibility means that the obligor must per orm the prestation in one act and not in installments 7#rticle 12;@8. The creditor can validly re use i the per ormance is not in one act. ,$ceptions to 4ndivisibility installment per ormance8 7Cases when the law allows

1. 4n case o e$press stipulation 7#rticle 12;@8 Art. 1248. =nless there is an e,press stipulation to that effect% the creditor cannot be compelled partiall" to receive the prestations in which the obligation consists. 1either ma" the debtor be re-uired to make partial pa"ments. 7owever% when the debt is in part li-uidated and in part unli-uidated% the creditor ma" demand and the debtor ma" effect the pa"ment of the former without waiting for the li-uidation of the latter. 2. 4n prestations which necessarily entail partial per ormance nd 7#rticle 1220, 2 :8 Art. 1225$ 2 %. /hen the obligation has for its object the e,ecution of a certain number of da"s of work% the accomplishment of work b" metrical units% or analogous things which b" their nature are susceptible of partial performance% it shall be divisible. 3. 4 the debt is li*uidated in part and unli*uidated in part 7#rticle 12;@8 Art. 1248. =nless there is an e,press stipulation to that effect% the creditor cannot be compelled partiall" to receive the prestations in which the obligation consists. 1either ma" the debtor be re-uired to make partial pa"ments. 7owever% when the debt is in part li-uidated and in part unli-uidated% the creditor ma" demand and the debtor ma" effect the pa"ment of the former without waiting for the li-uidation of the latter. ;. 4n &oint divisible obligations 7#rticle 12.@8 Art. 1208. +f from the law% or the nature or the wording of the obligations to which the preceding article refers the contrar" does not appear% the credit or debt shall be presumed to be divided into as man" shares as there are creditors or debtors% the credits or debts being considered distinct from one another% subject to the )ules of Court governing the multiplicit" of suits.
n+

0. 4n solidary obligations when the debtors are bound under di erent terms and conditions 7#rticle 12118 Art. 1211. >olidarit" ma" e,ist although the creditors and the debtors ma" not be bound in the same manner and b" the same periods and conditions. 1. 4n compensation where there is a balance le t 7#rticle 12A.8 Art. 1290. /hen all the re-uisites mentioned in article '4AC are present% compensation takes effect b" operation of law% and e,tinguishes both debts to the concurrent amount% even though the creditors and debtors are not aware of the compensation. ?. 4 the wor( is to be delivered partially, the price or compensation or each part having been i$ed 7#rticle 1?2.8 Art. 1720. The price or compensation shall be paid at the time and place of deliver" of the work% unless there is a stipulation to the contrar". +f the work is to be delivered partiall"% the price or compensation for each part having been fi,ed% the sum shall be paid at the time and place of deliver"% in the absence if stipulation. @. 4n case o several guarantors who demand the right o division 7#rticle 2.108 Art. 2065. >hould there be several guarantors of onl" one debtor and for the same debt% the obligation to answer for the same is divided among all. The creditor cannot claim from the guarantors e,cept the shares which the" are respectivel" bound to pa"% unless solidarit" has been e,pressl" stipulated. The benefit of division against the co. guarantors ceases in the same cases and for the same reasons as the benefit of e,cussion against the principal debtor. A. 4n case o impossibility or e$treme di icult o per ormance a single

For e$ample, # is obligated to deliver 1 million bags o cement. Under the circumstances, this may be e$tremely di icult.

b. As to t"e parties i. Pa8or! .5ligor! De5tor Who may be the =ayor 1. Without the consent o the creditor

a. The debtor himsel b. The debtors heirs or assigns c. The debtors agent d. #nyone interested in the ul illment o the obligation 7 e.g. guarantor8 2. With the consent o the creditor #nyone can pay i the creditor consents
rd

, ect o =ayment by a 3

=erson

1. &ayment was with the :ebtors *onsent General )ule* The payor steps into the shoes o the creditor and becomes entitled not only to recover what he has paid, but also to e$ercise all the rights which the creditor could have e$ercised subrogation 7#rticles 1231, 123? 8. There is no e$tinguishment o the obligation but a change in the active sub&ect.

Exception: !o subrogation i intended to be a donation 7#rticle 123@ 8. The 3 person may demand repayment to the e$tent nd that the debtor has bene ited 7#rticle 1231, 2 : 8.
rd

2. &ayment was without the :ebtors *onsent

ii. Pa8ee! .5ligee! ;reditor Who may be the =ayee 1. The creditor himsel 7#rticles 12;., 1121 8 2. The creditors successor or trans#eree ?$rticle '-E(@ 3. The creditors agent ?$rticle '-E(@ ;. #ny third person sub&ect to the ollowing conditions6

Art. *&)'. The creditor is not bound to accept payment or per ormance by a third person who has no interest in the ul illment o the obligation, unless there is a stipulation to the contrary. Whoever pays or another may demand rom the debtor what he has paid, e$cept that i he paid without the (nowledge or against the will o the debtor, he can recover only inso ar as the payment has been bene icial to the debtor. Art. *&)1. Whoever pays on behal o the debtor without the (nowledge or against the will o the latter, cannot compel the creditor to subrogate him in his rights, such as those arising rom a mortgage, guaranty, or penalty.

Art. *&)/. =ayment made by a third person who does not intend to be reimbursed by the debtor is deemed to be a donation, which re*uires the debtorCs consent. 9ut the payment is in any case valid as to the creditor who has accepted it.

Art. *&40. =ayment shall be made to the person in whose avor the obligation has been constituted, or his successor in interest, or any person authori3ed to receive it. Art. *'&'. The debtor who, be ore having (nowledge o the assignment, pays his creditor shall be released rom the obligation.

a. &rovided it redounded to the creditors bene#it and only nd to the e$tent o such bene it 7#rticle 12;1 , 2 par8 b. 4 it alls under #rticle 12;1 :2 718, 728 and 738, the bene it is total. 0. #nyone in possession o the credit 7#rticle 12;2 8 1. 4n all these 0 instances, it is re*uired that the debt should not be garnished 7#rticle 12;28. 4 there is payment despite garnishment, then there is no payment. c. As to t"e ti i. e an+ place o. per.or ance G$en Pa8ment +$ould 5e 9ade =ayment should be made when it is due. ,ven i the payment is due, the General )ule is that demand is still necessary. #rticle 111A necessary

provides the instances when demand is not

1. When the obligation or the law e$pressly so declares 2. Time is the controlling motive or the establishment o the contract 3. 'emand would be useless ii. G$ere Pa8ment +$ould 5e 9ade: Primar" )ule* #greement o the parties

Art. *&4*. =ayment to a person who is incapacitated to administer his property shall be valid i he has (ept the thing delivered, or inso ar as the payment has been bene icial to him. =ayment made to a third person shall also be valid inso ar as it has redounded to the bene it o the creditor. +uch bene it to the creditor need not be proved in the ollowing cases6 718 4 a ter the payment, the third person ac*uires the creditorCs rights" 728 4 the creditor rati ies the payment to the third person" 738 4 by the creditorCs conduct, the debtor has been led to believe that the third person had authority to receive the payment.

Art. *&4&. =ayment made in good aith to any person in possession o the credit shall release the debtor. Art. **'2. Those obliged to deliver or to do something incur in delay rom the time the obligee &udicially or e$tra&udicially demands rom them the ul illment o their obligation. Fowever, the demand by the creditor shall not be necessary in order that delay may e$ist6 718 When the obligation or the law e$pressly so declare" or 728 When rom the nature and the circumstances o the obligation it appears that the designation o the time when the thing is to be delivered or the service is to be rendered was a controlling motive or the establishment o the contract" or 738 When demand would be useless, as when the obligor has rendered it beyond his power to per orm. 4n reciprocal obligations, neither party incurs in delay i the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one o the parties ul ills his obligation, delay by the other begins.

>econdar" )ule* =lace where the thing was at the time the obligation was constituted i the obligation is to deliver a determinate thing Tertiar" )ule* :ebtors domicile ?not residence@

; +pecial Forms o =ayment a. Dacion en pa/o 7#rticle 12;08 Art. 1245. Dation in pa"ment% whereb" propert" is alienated to the creditor in satisfaction of a debt in mone"% shall be governed b" the law of sales. Dacion en pago is the act o e$tinguishing the obligation by the substitution o payment. 4t is the delivery and transmission o ownership o a thing by the debtor to the creditor as an accepted per ormanceHpayment o an obligation. 9y agreement o the parties, the prestation is changed. Dacion en pago is a special orm o comply with the re*uisite o identity. payment since it does not

-ther terms or dacion en pago include dation in payment, dation en paiement and datio in solutum. Dacion en pago is governed by the law on sales 7#rticle 12;08. There are 2 ways o loo(ing at dacion en pago. The traditional way is to view dacion en pago as a sale. Example: # owes 9 =1..,.... # has no cash when the loan alls due but he o ers the car i 9 wants it. 9 accepts. Fere, the debt is in money but payment is in something else. #ccording to the old traditional concept, it is li(e a sale because =1..,... seemed to be the purchase price and the car is the ob&ect. Fowever, the modern view is to loo( at dacion en pago as a novation. Castan has another view o dacion en pago. Fe believes that it is neither a sale nor a novation but a special orm o payment. 4t is a speciesHvariation o payment implying an onerous transaction similar to but not e*ual to a sale. 4t is not novation since there is no new obligation. Dacion en pago will ta(e place only i the parties consent. Dacion en pago e$tinguishes the obligation up to the value o the thing delivered unless the parties agree that the entire obligation is e$tinguished (Lope vs. ;A). ents 7#rticles 1202/120;8

b. Application o. pa!

Art. 1252. 7e who has various debts of the same kind in favor of one and the same creditor% ma" declare at the time of making the pa"ment% to which of them the same must be applied. =nless the parties so stipulate% or when the application

of pa"ment is made b" the part" for whose benefit the term has been constituted% application shall not be made as to debts which are not "et due. +f the debtor accepts from the creditor a receipt in which an application of the pa"ment is made% the former cannot complain of the same% unless there is a cause for invalidating the contract. Art. 1253. +f the debt produces interest% pa"ment of the principal shall not be deemed to have been made until the interests have been covered. Art. 1254. /hen the pa"ment cannot be applied in accordance with the preceding rules% or if application can not be inferred from other circumstances% the debt which is most onerous to the debtor% among those due% shall be deemed to have been satisfied. +f the debts due are of the same nature and burden% the pa"ment shall be applied to all of them proportionatel". #pplication payment is the designation o the debt which is being paid by a debtor who has several obligations o the same (ind in avor o the creditor to whom payment is made. The situation in application o payments is that a debtor owes his creditor. There are several debts due, but the debtor cannot pay all o the debts due. Example: # owes 9 =2..., =3... and =1.,.... # gives 9 =10,.... There is no application o payment here because it is e*ual to the total amount due. The creditor can always not accept application o payments since the creditor cannot be compelled to accept partial per ormance o the obligation. Fowever, this may not be wise since the debtor may have other creditors. The rules on application o payment solve the problem distributing the payment which is less than the total obligation. )ules in #pplication o =ayment '
st nd

)ule* #pply in accordance with the agreement

4 )ule* 4 there is no agreement, the debtor has the right to apply 6 ;


rd th

)ule* 4 the debtor does not choose, the creditor can choose. )ule* #pply to the most onerous debt 7#rticle 120;, :18 )ules to 'etermine Which is the >ore -nerous -bligation i. #n interest bearing obligation is more onerous than a non/interest bearing obligation.

ii. #n older debt is more onerous than a recent debt

iii. #n obligation where the party is bound as a principal is more onerous than an obligation is bound as a surety iv. #n obligation which is secured is more onerous than an obligation which is unsecured v. #n obligation with a penal clause is more onerous than an obligation without a penal clause c. &a! ( )ule* 4 120;, :28
th

e*ually onerous, apply proportionately 7#rticle

ent '! cession 7#rticle 12008

Art. 1255. The debtor ma" cede or assign his propert" to his creditors in pa"ment of his debts. This cession% unless there is stipulation to the contrar"% shall onl" release the debtor from responsibilit" for the net proceeds of the thing assigned. The agreements which% on the effect of the cession% are made between the debtor and his creditors shall be governed b" special laws. The situation is contemplated here is that the debtor has several creditors and several debts. Fe turns over property to his creditors who are given the authority to sell the property and to apply the proceeds to his debt. 4n payment by cession, property is turned over by the debtor to the creditors who ac*uire the right to sell it and divide the net proceeds among themselves. 4n payment by cession, the creditors do not own the property to be sold. The creditors only have the power to sell. The net proceeds o the sale will be distributed according to the agreement. =ayment by cession is a special orm o payment because there is no completeness o per ormance integrity. 4n most cases, there will be a balance due. =ayment by Cession 'istinguished rom Dacion en Pago 4n dacion en pago, there is a trans er o ownership rom the debtor to the creditor. 4n pa8ment 58 cesion, there is no trans er o ownership. The creditors simply ac*uire the right to sell the properties o the debtor and apply the proceeds o the sale to the satis action o their credit. =ayment by cession does not generally terminate all debts due since normally there is still a balance due. The balance will continue to be due unless the parties agree otherwise. Usually, the termination is only to the e$tent o the net proceeds. The e$tinguishment o the obligation is pro tanto. 2 Einds o 4nsolvency i. ,$tra&udicial or Ooluntary

=ayment by cession must be distinguished rom insolvency.

4n e$tra&udicial insolvency, i there is a balance le t, the debtor must still pay. Fowever, the debtor may limit which properties will be sold by the creditors since the agreement is contractual. 4n &udicial insolvency, the obligation e4tinguished even i# theres still a balance. is totally

ii. Iudicial

4n &udicial insolvency, every property which is not e$empt rom attachment or e$ecution is made available or sale. ent an+ consi/nation 7#rticle 1201/12118

d. 7en+er o. pa!

Art. 1256. +f the creditor to whom tender of pa"ment has been made refuses without just cause to accept it% the debtor shall be released from responsibilit" b" the consignation of the thing or sum due. Consignation alone shall produce the same effect in the following cases* 3'5 /hen the creditor is absent or unknown% or does not appear at the place of pa"ment2 345 /hen he is incapacitated to receive the pa"ment at the time it is due2 365 /hen% without just cause% he refuses to give a receipt2 3;5 /hen two or more persons claim the same right to collect2 3(5 /hen the title of the obligation has been lost. Art. 1257. +n order that the consignation of the thing due ma" release the obligor% it must first be announced to the persons interested in the fulfillment of the obligation. The consignation shall be ineffectual if it is not made strictl" in consonance with the provisions which regulate pa"ment. Art. 1258. Consignation shall be made b" depositing the things due at the disposal of judicial authorit"% before whom the tender of pa"ment shall be proved% in a proper case% and the announcement of the consignation in other cases. The consignation having been parties shall also be notified thereof. made% the interested

Art. 1259. The e,penses of consignation% when properl" made% shall be charged against the creditor. Art. 1260. #nce the consignation has been dul" made% the debtor ma" ask the judge to order the cancellation of the obligation.

Fefore the creditor has accepted the consignation% or before a judicial declaration that the consignation has been properl" made% the debtor ma" withdraw the thing or the sum deposited% allowing the obligation to remain in force. Art. 1261. +f% the consignation having been made% the creditor should authori$e the debtor to withdraw the same% he shall lose ever" preference which he ma" have over the thing. The co.debtors% guarantors and sureties shall be released. Consignation is the act o depositing the thing due wH the court or &udicial authorities whenever the creditor cannot accept or re uses to accept payment and it generally re*uires a prior tender o payment. 4t is de ined in the case o +oco vs. 9ilitante as a deposit o the ob&ect o the prestation in a competent court in accordance with the rules prescribed by law, a ter tender o payment was re used or circumstances which render payment impossible or inadvisable. #ccording to =ro essor 9alane, the title o the subsection is wrong. 4t should have been consignation only because that is the special mode o payment and not the tender o payment. Tender o payment is a mani estation made by the debtor o his willingness, readiness and ability to pay. 4t is a special mode o payment because payment is made not to the creditor but to the court. Consignation is an option on the part o the debtor because consignation assumes that the creditor was in mora accipiendi when the creditor without &ust cause, re uses to accept payment. course, i the creditor without &ust cause re uses to accept payment, the debtor may &ust delay payment. 9ut something still hangs above his head. Fe is there ore, given the option to consign. )e*uisites6 i. That there was a debt due ii. That the consignation o the obligation had been made because o some legal cause, either because 1. Tender o payment was un&ustly re used by the creditor or 2. There is no need or tender o payment due to circumstances which ma(e tender o payment impossible or inadvisable Circumstances Which >a(e Unnecessary 7#rticle 12018 Tender o =ayment

a. The creditor was absent or un(nown, or does not appear at the place o payment b. The creditor was incapacitated payment at the time it was due to receive the

=ayment made to an incapacitated person does not count e$cept to the e$tent that the incapacitated person is bene ited.

c. The creditor, without &ust cause re uses to give a receipt #ccording to =ro essor 9alane, this is wrong. This is not a special case wherein you dont need tender o payment. This presupposes that there has been a prior tender o payment.

d. +everal persons claimed to be entitled to receive the amount due The debtor consignation should ile interpleader with

e. The title o the obligation has been lost iii. That previous notice o the consignation had been given to the person interested in the per ormance o the obligation 7#rticle 120?8 iv. That the amount due was placed at the disposal o the court 7consignation proper8 v. That a ter the consignation had been made the person interested was noti ied thereo 7second notice.8 Failure o any o these re*uirements is enough ground to render a consignation ine ective.

2. !oss of the Thing Due 7#rticles 1212/121A8 Art. 1262. An obligation which consists in the deliver" of a determinate thing shall be e,tinguished if it should be lost or destro"ed without the fault of the debtor% and before he has incurred in dela". /hen b" law or stipulation% the obligor is liable even for fortuitous events% the loss of the thing does not e,tinguish the obligation% and he shall be responsible for damages. The same rule applies when the nature of the obligation re-uires the assumption of risk. Art. 1263. +n an obligation to deliver a generic thing% the loss or destruction of an"thing of the same kind does not e,tinguish the obligation. Art. 1264. The courts shall determine whether% under the circumstances% the partial loss of the object of the obligation is so important as to e,tinguish the obligation. Art. 1265. /henever the thing is lost in the possession of the debtor% it shall be presumed that the loss was due to his fault% unless there is proof to the contrar"% and without prejudice to the provisions of article ''@(. This presumption does not appl" in case of earth-uake% flood% storm% or other natural calamit".

Art. 1266. The debtor in obligations to do shall also be released when the prestation becomes legall" or ph"sicall" impossible without the fault of the obligor. Art. 1268. /hen the debt of a thing certain and determinate proceeds from a criminal offense% the debtor shall not be e,empted from the pa"ment of its price% whatever ma" be the cause for the loss% unless the thing having been offered b" him to the person who should receive it% the latter refused without justification to accept it. Art. 1269. The obligation having been e,tinguished b" the loss of the thing% the creditor shall have all the rights of action which the debtor ma" have against third persons b" reason of the loss. 5oss o the thing here is not to be ta(en in the strict legal meaning o 2loss. Noss can be applied in an obl igation to give a determinate thing 7#rticle 12128, in an obligation to give a generic thing 7#rticle 12138 and in an obligation to do 7#rticle 12118. The term loss embraces all causes which may render impossible the per ormance o the prestations impossibility o per ormance . # thing is lost when it perishes, or goes out o commerce, or disappears in such a way that its e$istence is un(nown or it cannot be recovered. When the debt o a thing certain and determinate proceeds rom a criminal o ense, the debtor shall not be e$empted rom the payment o its price, whatever may be the cause or the loss, unless the thing having been o ered by him to the person who should receive it, the latter re used without &usti ication to accept it 7#rticle 121@8. Einds o 4mpossibility #ccording to Time a. -riginal 4mpossibility 4 the impossibility had already e$isted when the contract was made, then the result is not e$tinguishments but ine icacy o the obligation under #rticles 13;@ and 1;A3 . The contract is void. The impossibility o per ormance must be subse*uent to the e$ecution o the contract in order to e$tinguish the obligation. Change in the Circumstances Re5us sic stanti5us literally means 2things as they stand. It is short or clausula re5us sic stanti5us agreement o things as they stand. #lso called Riesgo imprevisi5le 7+panish8, 7$eorie

b. +upervening 4mpossibility

Art. *)4/. 4mpossible things or services cannot be the ob&ect o contracts.

Art. *42). 4 at the time the contract o sale is per ected, the thing which is the ob&ect o the contract has been entirely lost, the contract shall be without any e ect. 9ut i the thing should have been lost in part only, the vendee may choose between withdrawing rom the contract and demanding the remaining part, paying its price in proportion to the total sum agreed upon.

dimprevision 7French8 and >ersc$uvinden des :rundgesc$I"tes 72erman8. Art. 1267. /hen the service has become so difficult as to be manifestl" be"ond the contemplation of the parties% the obligor ma" also be released therefrom% in whole or in part. 4n )oman law, no matter how di icult the obligation is, it has to be per ormed or else the obligor may be liable or damages (pacta sunt servanda). 4n >edieval times, although agreements should be complied with, in certain e$treme circumstances, the debtor can be released because o the di iculty in per ormance. This is a principle o international law which holds that when 2 states enter into a treaty, they enter ta(ing into account the circumstances at the time it was entered into and should the circumstances change as to ma(e the ul illment o the treaty very di icult, one may as( or a termination o the treaty. This principle o international law has spilled over into Civil law. The underlying philosophy here is that when parties enter into an agreement, the parties contemplate e$isting circumstances. When things supervene, the parties may be discharged because they did not contemplate such di icult circumstances. This doctrine is also called the doctrine o e$treme di iculty and rustration o commercial ob&ect or enterprise. The attitude o the courts on this doctrine is very strict. This principle has always been strictly applied. To give it a liberal application is to undermine the binding orce o an obligation. ,very obligation is di icult. The per ormance must be e$tremely di icult in order or re5us sic stanti5us to apply. )e*uisites i. The event or change could not have been oreseen at the time o the e$ecution o the contract

ii. The event or change ma(es the per ormance e$tremely di icult but not impossible iii. The event must not be due to an act o either party iv. The contract is or a uture prestation. 4 the contract is o immediate ul illment, the gross ine*uality o the reciprocal prestation may involve lesion or want o cause.

-bligation to 2ive a. -bligation to give a determinate thing The happening o a ortuitous event in itsel does not necessarily e$tinguish an obligation to deliver a determinate thing. #n obligation consisting in the delivery o a speci ied thing, shall be e$tinguished when the said thing is lost or destroyed without the ault o the obligor and be ore he is in de ault.

Whenever the thing is lost in the possession o the debtor, it shall be presumed that the loss was due to his ault, unless there is proo to the contrary, and without pre&udice to the provisions o #rticle 1110. This presumption does not apply in case o earth*ua(e, lood, storm or other natural calamity 7#rticle 12108 The happening o a ortuitous event does not e$tinguish the obligation to deliver a generic thing :enus nun=uam perit %genus never perishes. This is the general rule. 7ometimes, though, the entire genus perishes because it becomes illegal. What is not covered by this rule is an obligation to deliver a limited generic. Example: 4 promise to deliver to you one o my Amorsolos 74 have ;8. This is not generic because 4 only have our but not speci ic because 4 did not speci y which one. This is governed by #rticle 1212. 4n this case, the obligation may be e$tinguished by the loss o all the things through ortuitous event.

b. -bligation to give a generic thing

-bligation to do The debtor in obligations to do shall also be released when the prestation becomes legally or physically impossible without the ault o the obligor 7#rticle 12118. The impossibility here must be supervening. 4 it is original, then the contract is void.

Einds o 4mpossibility #ccording to !ature a. -b&ective 4mpossibility 4n ob&ective impossibility, the act cannot be done by anyone. The e ect o ob&ective impossibility is to e$tinguish the obligation. 4n sub&ective impossibility, the obligation becomes impossible only wH respect to the obligor. There are 3 views as to the e ect o a sub&ective impossibility6 i The obligation is not e$tinguished. another to do the obligation. The obligor should as(

b. +ub&ective 4mpossibility

ii. The obligation is e$tinguished. iii. # third view distinguishes one prestation which is very personal and one which are not personal such that sub&ective impossibility is a cause or e$tinguishes a very personal obligation but not an obligation which is not very personal. +##ect o# Noss on *reditors Cights The obligation having been e$tinguished by the loss o the thing, the creditor shall have all the rights o action which the debtor may have against the third person by reason o the loss. # common e$ample o this is insurance.

3. Condonation or )emission of the Due Art. 1270. Condonation or remission is essentiall" gratuitous% and re-uires the acceptance b" the obligor. +t ma" be made e,pressl" or impliedl". #ne and the other kind shall be subject to the rules which govern inofficious donations. 8,press condonation shall% furthermore% compl" with the forms of donation. Art. 1271. The deliver" of a private document evidencing a credit% made voluntaril" b" the creditor to the debtor% implies the renunciation of the action which the former had against the latter. +f in order to nullif" this waiver it should be claimed to be inofficious% the debtor and his heirs ma" uphold it b" proving that the deliver" of the document was made in virtue of pa"ment of the debt. Art. 1272. /henever the private document in which the debt appears is found in the possession of the debtor% it shall be presumed that the creditor delivered it voluntaril"% unless the contrar" is proved. Art. 1273. The renunciation of the principal debt shall e,tinguish the accessor" obligations2 but the waiver of the latter shall leave the former in force. Art. 1274. +t is presumed that the accessor" obligation of pledge has been remitted when the thing pledged% after its deliver" to the creditor% is found in the possession of the debtor% or of a third person who owns the thing. Condonation or remission is an act o liberality by virtue o which, without receiving any e*uivalent, the creditor renounces en orcement o an obligation which is e$tinguished in whole or in part. )e*uisites a. The debt must be e$isting Dou can remit a debt even be ore it is due. Example: 4 owe # =1>. 4 promised to pay on Iuly 31, 2..2 with interest. -n >ay 31, # condones the obligation. The obligation is e$isting but not yet due but it can be condoned. b. The renunciation must be gratuitous 4 renunciation is or a consideration, the mode o e$tinguishment may be something else. 4t may be novation, compromise or dacion en pago or e$ample.

c. There must be acceptance by the debtor d. The parties must have capacity The creditor must have capacity to give away. The debtor must have capacity to accept.

Form a. 4 the renunciation is e$press, then it is a donation. The orm o donation must be observed. 4 the condonation involves movables, apply #rticle ?;@ . 4 it involves immovables, apply #rticle ?;A . There is no prescribed orm in a waiver 7#rticle 1 8. For e$ample, the creditor can &ust re use to collect the debt. #ccording to =ro essor 9alane, #rticles 12?1 and 12?2 re er to a (ind o implied renunciation when the creditor divests himsel o the proo credit. The delivery o a private document, evidencing a credit, made voluntarily by the creditor to the debtor, implies the renunciation o the action which the ormer had against the latter. 4 in order to nulli y this waiver it should be claimed to be ino icious, the debtor and his heirs may uphold it by providing that the delivery o the document was made in virtue o payment o the debt 7#rticle 12?18. #rticle 12?1 has no application to public documents because there is always a copy in the archives which can be used to prove the credit. =rivate document re ers to the original in order or #rticle 12?1 to apply. 9y delivering the private document, the creditor deprives himsel o proo .
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b. 4 the renunciation is implied, then it is tantamount to a waiver.

Art. 14/. The donation o a movable may be made orally or in writing. #n oral donation re*uires the simultaneous delivery o the thing or o the document representing the right donated. 4 the value o the personal property donated e$ceeds ive thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void. 7132a8 Art. 142. 4n order that the donation o an immovable may be valid, it must be made in a public document, speci ying therein the property donated and the value o the charges which the donee must satis y. The acceptance may be made in the same deed o donation or in a separate public document, but it shall not ta(e e ect unless it is done during the li etime o the donor. 4 the acceptance is made in a separate instrument, the donor shall be noti ied thereo in an authentic orm, and this step shall be noted in both instruments.
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Art. '. )ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or pre&udicial to a third person with a right recogni3ed by law.

Art. *&1*. The delivery o a private document evidencing a credit, made voluntarily by the creditor to the debtor, implies the renunciation o the action which the ormer had against the latter. 4 in order to nulli y this waiver it should be claimed to be ino icious, the debtor and his heirs may uphold it by proving that the delivery o the document was made in virtue o payment o the debt. 711@@8 Art. *&1&. Whenever the private document in which the debt appears is ound in the possession o the debtor, it shall be presumed that the creditor delivered it voluntarily, unless the contrary is proved.

The second paragraph o #rticle 12?1 implies that the voluntary return o the title o credit is presumed to be by reason o remission and not by reason o the payment o debt. #ccording to =ro essor 9alane, this is anomalous. This provision is absurd and immoral in that it authori3es the debtor and his heirs to prove that they paid the debt, when the provision itsel assumes that there has been a remission, which is gratuitous.

Whenever the private document in which the debt appears is ound in the possession o the debtor, it shall be presumed that the creditor delivered it voluntarily, unless the contrary is proved 7#rticle 12?28. 2 =resumptions6 i. 4 a private document is ound in the possession o the debtor, then it is presumed that the creditor voluntarily delivered it to him

ii. +ince the creditor voluntarily delivered the private document, then there is a presumption o remission Ways o )emission a. 9y will b. 9y agreement , ect o =artial )emission The renunciation o the principal debt shall e$tinguish the accessory obligations" but the waiver o the latter shall leave the ormer in orce 7#rticle 12?38. Example: 5oan secured by a mortgage. 4 4 condone the loan, 4 condone the mortgage. 9ut i 4 condone the mortgage, 4 do not condone the loan which merely becomes unsecured. The obligation o the guarantor is e$tinguished at the same time as that o the debtor, and or the same causes as all other obligations 7#rticle 2.?18. The guarantors, even though they be solidary, are released rom their obligation whenever by some act o the creditor they cannot be subrogated to the rights, mortgages, and pre erences o the latter 7#rticle 2.@.8. 4t is presumed that the accessory obligation o pledge has been remitted when the thing pledged, a ter its delivery to the creditor, is ound in the possession o the debtor, or o a third person who owns the thing 7#rticle 12?;8. #ccording to =ro essor 9alane, the accessory obligation o pledge is e$tinguished because pledge is a possessory lien. The presumption in this case is that the pledgee has surrendered the thing pledged to the pledgor. Fowever, this is not a conclusive presumption according to #rticle 211., :2. This presumption is not applicable in a mortgage since there is no possessory lien.

4n addition to the re*uisites prescribed in article 2.@0, it is necessary, in order to constitute the contract o pledge, that the thing pledged be placed in the possession o the creditor, or o a third person by common agreement 7#rticle 2.A38 The debtor cannot as( or the return o the thing pledged against the will o the creditor, unless and until he has paid the debt and its interest, with e$penses in a proper case 7#rticle 21.08.

;. Confusion or :erger of )ights Art. 1275. The obligation is e,tinguished from the time the characters of creditor and debtor are merged in the same person. Art. 1276. :erger which takes place in the person of the principal debtor or creditor benefits the guarantors. Confusion which takes place in the person of an" of the latter does not e,tinguish the obligation. Art. 1277. Confusion does not e,tinguish a joint obligation e,cept as regards the share corresponding to the creditor or debtor in whom the two characters concur. Con usion is the meeting in one person o the *ualities o the creditor and debtor with respect to the same obligation. Con usion or merger o rights e$tinguishes the obligation because the creditor becomes his own debtor. There ore, how can the creditor sue himsel . )e*uisites o Con usion a. 4t must ta(e place between the creditor and the principal debtor 7#rticle 12?18 # borrowed = 1> rom 9 with C as guarantor. 4 C ac*uires the right to collect the = 1>, there is no con usion since C is neither a principal debtor or creditor. The e ect is that the guaranty is e$tinguished. The principal obligation remains.

b. The very same obligation must be involved 7#rticle 12?08 Usual Causes o Con usion a. +uccession 7compulsory, testate, intestate8 b. 'onation c. !egotiation o a negotiable instrument Con usion can overlap with remission or payment. Example o" con"usion overlapping 4it$ remission: N owes - =1..,.... be*ueath to N that credit. #nd then she died. 4n this case, there is e$tinguishment both by merger. 9ut in this case, merger could overlap with remission. Example o" con"usion overlapping 4it$ pa8ment. # ma(es a promissory note and endorses it to 9. 9 endorsed it to C. C to '. ' endorsed it bac( to #.

0. Compensation Art. 1278. Compensation shall take place when two persons% in their own right% are creditors and debtors of each other. Art. 1279. necessar"* +n order that compensation ma" be proper% it is

3'5 That each one of the obligors be bound principall"% and that he be at the same time a principal creditor of the other2 345 That both debts consist in a sum of mone"% or if the things due are consumable% the" be of the same kind% and also of the same -ualit" if the latter has been stated2 365 That the two debts be due2 3;5 That the" be li-uidated and demandable2 3(5 That over neither of them there be an" retention or controvers"% commenced b" third persons and communicated in due time to the debtor. Art. 1280. 1otwithstanding the provisions of the preceding article% the guarantor ma" set up compensation as regards what the creditor ma" owe the principal debtor. Art. 1281. Compensation ma" be total or partial. /hen the two debts are of the same amount% there is a total compensation. Art. 1282. The parties ma" agree upon the compensation of debts which are not "et due. Art. 1283. +f one of the parties to a suit over an obligation has a claim for damages against the other% the former ma" set it off b" proving his right to said damages and the amount thereof. Art. 1284. /hen one or both debts are rescissible or voidable% the" ma" be compensated against each other before the" are judiciall" rescinded or avoided. Art. 1285. The debtor who has consented to the assignment of rights made b" a creditor in favor of a third person% cannot set up against the assignee the compensation which would pertain to him against the assignor% unless the assignor was notified b" the debtor at the time he gave his consent% that he reserved his right to the compensation. +f the creditor communicated the cession to him but the debtor did not consent thereto% the latter ma" set up the compensation of debts previous to the cession% but not of subse-uent ones. +f the assignment is made without the knowledge of the debtor% he ma" set up the compensation of all credits prior to the same and also later ones until he had knowledge of the assignment.

Art. 1286. Compensation takes place b" operation of law% even though the debts ma" be pa"able at different places% but there shall be an indemnit" for e,penses of e,change or transportation to the place of pa"ment. Art. 1287. Compensation shall not be proper when one of the debts arises from a depositum or from the obligations of a depositar" or of a bailee in commodatum. 1either can compensation be set up against a creditor who has a claim for support due b" gratuitous title% without prejudice to the provisions of paragraph 4 of article 6D'. Art. 1288. 1either shall there be compensation if one of the debts consists in civil liabilit" arising from a penal offense. Art. 1289. +f a person should have against him several debts which are susceptible of compensation% the rules on the application of pa"ments shall appl" to the order of the compensation. Art. 1290. /hen all the re-uisites mentioned in article '4AC are present% compensation takes effect b" operation of law% and e,tinguishes both debts to the concurrent amount% even though the creditors and debtors are not aware of the compensation. Compensation is a mode o e$tinguishing, to the concurrent amount, the obligations o those persons who in their own right are reciprocally debtors and creditors o each other. =erhaps, ne$t to payment, compensation is the most common mode o e$tinguishing an obligation. Compensation 'istinguished rom Con usion 4n compensation, there are 2 parties and 2 debts, whereas in con usion, there are 2 debts and only 1 party.

Einds o Compensation a. :e/al 7#rticle 12?A8 5egal compensation ta(es place automatically by operation o law once all the re*uisites under #rticle 12?A are present. )e*uisites i. The parties must be mutually debtors and creditors o other in their own right and as principals. each

There can be no compensation i 1 party occupies only a representative capacity 7i.e. agent8. 5i(ewise, there can be no compensation i in one obligation, a party is a principal obligor and in another obligation, he is a guarantor. $rticle '-9. uses the word 2consumable. This is wrong. The proper terminology is 2#ungible which re#ers to things o#

ii. The things due must be ungible

the same (ind which in payment can be substituted another. iii. The 2 debts must be due iv. The 2 debts must be li*uidated and demandable

or

'emandable means that the debts are en orceable in court, there being no apparent de enses inherent in them. The obligations must be civil obligations, e$cluding those that are purely natural. 9e ore a &udicial decree o rescission or annulment, a rescissible or voidable debt is valid and demandable" hence, it can be compensated. # debt is li*uidated when its e$istence and amount are determined. #nd a debt is considered li*uidated, not only when it is e$pressed already in de inite igures wHc do not re*uire veri ication, but also when the determination o the e$act amount depends only on a simple arithmetical operation.

v. !either o the debts must not be garnished vi. Compensation must not be prohibited by law #rticles 12@?, 12@@ and 1?A; compensation is not allowed.

are e$amples o when legal when there is

5egal compensation is not allowed conventional or acultative compensation.

, ect o 5egal Compensation 4 a person should have against him several debts which are susceptible o compensation, the rules on the application o payments shall apply to the order o the compensation 7#rticle 12@A8 When all the re*uisites mentioned in article 12?A are present, compensation ta(es e ect by operation o law, and e$tinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware o the compensation 7#rticle 12A.8

b. )acultati(e 7#rticles 12@?, 12@@8 Facultative compensation ta(es place when compensation is claimable by only one o the parties but not o the other. Compensation shall not be proper when one o the debts arises rom a depositum or rom the obligations o a depositary or o a bailee in commodatum. !either can compensation be set up against a creditor who has a claim or support due by gratuitous title, without pre&udice to the provisions o paragraph 2 o article 3.1 7#rticle 12@?8

Art. *124. ,very partner is responsible to the partnership or damages su ered by it through his ault, and he cannot compensate them with the pro its and bene its which he may have earned or the partnership by his industry. Fowever, the courts may e*uitably lessen this responsibility i through the partnerCs e$traordinary e orts in other activities o the partnership, unusual pro its have been reali3ed.

The prohibition o compensation when one o the debts arises rom a depositum or commodatum is based on &ustice. # deposit is made or a commodatum is given on the basis o con idence in the depositary or the borrower. 4t is there ore, a matter o morality, that the depositary or the borrower should in act per orm his obligation" otherwise, the trust or con idence o the depositor or lender would be violated. With respect to uture support, to allow its e$tinguishments by compensation would de eat its e$emption rom attachment and e$ecution 7#rticle 2.0, Family Code8 and may e$pose the recipient to misery and starvation. Fowever, support in arrears can be compensated. The depositary cannot set up compensation wH respect to the things deposited to him. 9ut the depositor can set up the compensation. Example: # is a warehouseman. 9 deposits 1... =uedans o rice with #. 9 also owes # 1... (ilos o rice. # cannot claim compensation but 9 can set up compensation.

!either shall there be compensation i one o the debts consists in civil liability arising rom a penal o ense 7#rticle 12@@8 4 1 o the debts consists in civil liability arising rom a penal o ense, compensation would be improper and inadvisable because the satis action o such obligation is imperative. The person who has the civil liability arising rom the crime cannot set up compensation. Fowever, the o ended party is entitled to set up compensation.

c. Conventional or Contractual 7#rticle 12@28 Contractual or conventional compensation ta(es place when parties agree to set/o even i the re*uisites o legal compensation are not present. The parties may agree upon the compensation o debts which are not yet due. The parties may compensate by agreement any obligations, in wHc the ob&ective re*uisites provided or legal compensation are not present. Iudicial compensation is compensation decreed by the court in a case where there is a counterclaim. 4 one o the parties to a suit over an obligation has a claim or damages against the other, the ormer may set it o by proving his right to said damages and the amount thereo .

d. 0udicial 7#rticle 12@38

, ect o #ssignment 7#rticle 12@08 +ituation: 4


'ebtor

Creditor

#
'ebtor

9
Creditor

44 There are two credits credit 4 and credit 44. 4n credit 4, # is the creditor and 9 is the debtor. 4n credit 44, 9 is the creditor and # is the debtor. # wants to assign credit 4 to C. # cannot assign credit 44 since it is passive sub&ective novation. Can 9 now invo(e against C the compensation o credit 44% 4t depends6 a. I# the assignment is with the debtors ?%s@ consent 'ebtor cannot set up compensation at all unless the right is reserved.

b. I# the assignment is with the debtors ?%s@ (nowledge but without consent The debtor can set up compensation with a credit already e$isting at the time o the assignment. the debtors ?%s@

c. I# the assignment is without knowledge 1. 1ovation

'ebtor can set up as compensation any credit e$isting at the time he ac*uired (nowledge even i it arose a ter the actual assignment.

Art. 1291. #bligations ma" be modified b"* 3'5 Changing their object or principal conditions2 345 >ubstituting the person of the debtor2 365 >ubrogating a third person in the rights of the creditor. Art. 1292. +n order that an obligation ma" be e,tinguished b" another which substitute the same% it is imperative that it be so declared in une-uivocal terms% or that the old and the new obligations be on ever" point incompatible with each other. Art. 1293. 1ovation which consists in substituting a new debtor in the place of the original one% ma" be made even without the knowledge or against the will of the latter% but not without the consent of the creditor. Pa"ment b" the new debtor gives him the rights mentioned in articles '46@ and '46A.

Art. 1294. +f the substitution is without the knowledge or against the will of the debtor% the new debtor9s insolvenc" or non. fulfillment of the obligations shall not give rise to an" liabilit" on the part of the original debtor. Art. 1295. The insolvenc" of the new debtor% who has been proposed b" the original debtor and accepted b" the creditor% shall not revive the action of the latter against the original obligor% e,cept when said insolvenc" was alread" e,isting and of public knowledge% or known to the debtor% when the delegated his debt. Art. 1296. /hen the principal obligation is e,tinguished in conse-uence of a novation% accessor" obligations ma" subsist onl" insofar as the" ma" benefit third persons who did not give their consent. Art. 1297. +f the new obligation is void% the original one shall subsist% unless the parties intended that the former relation should be e,tinguished in an" event. Art. 1298. The novation is void if the original obligation was void% e,cept when annulment ma" be claimed onl" b" the debtor or when ratification validates acts which are voidable. Art. 1299. +f the original obligation was subject to a suspensive or resolutor" condition% the new obligation shall be under the same condition% unless it is otherwise stipulated. Art. 1300. >ubrogation of a third person in the rights of the creditor is either legal or conventional. The former is not presumed% e,cept in cases e,pressl" mentioned in this Code2 the latter must be clearl" established in order that it ma" take effect. Art. 1301. Conventional subrogation of a third person re-uires the consent of the original parties and of the third person. Art. 1302. +t is presumed that there is legal subrogation* 3'5 /hen a creditor pa"s another creditor who is preferred% even without the debtor9s knowledge2 345 /hen a third person% not interested in the obligation% pa"s with the e,press or tacit approval of the debtor2 365 /hen% even without the knowledge of the debtor% a person interested in the fulfillment of the obligation pa"s% without prejudice to the effects of confusion as to the latter9s share.

Art. 1303. >ubrogation transfers to the persons subrogated the credit with all the rights thereto appertaining% either against the debtor or against third person% be the" guarantors or possessors of mortgages% subject to stipulation in a conventional subrogation.

Art. 1304. A creditor% to whom partial pa"ment has been made% ma" e,ercise his right for the remainder% and he shall be preferred to the person who has been subrogated in his place in virtue of the partial pa"ment of the same credit. !ovation is the e$tinguishment o an obligation by the substitution or change o the obligation by a subse*uent one which e$tinguishes or modi ies the irst, either by changing the ob&ect o principal conditions, or by substituting the person o the debtor, or by subrogating a third person in the rights o the creditor. !ovation is the most unusual mode o e$tinguishing an obligation. 4t is the only mode whereby an obligation is e$tinguished and a new obligation is created to ta(e its place. The other modes o e$tinguishing an obligation are absolute in the sense that the e$tinguishment o the obligation is total. !ovation, on the other hand, is a relative mode o e$tinguishing an obligation. # compromise is a orm o novation. The di erence is that a compromise has some &udicial participation. The e ect o compromise is the same as novation. Classi ication o !ovation a. +ub&ective or =ersonal !ovation change o one o the sub&ects i. #ctive sub&ective This a change o creditor. This is also (nown as subrogation. 2 Einds o +ubrogation 1. 5egal 7#rticle 13.28 4t is presumed that there is legal subrogation6 a. When a creditor pays another creditor who is pre erred, even without the debtorCs (nowledge"

b. When a third person, not interested in the obligation, pays with the e$press or tacit approval o the debtor c. When, even without the (nowledge o the debtor, a person interested in the ul illment o the obligation pays, without pre&udice to the e ects o con usion as to the latterCs share"

2. Conventional Conventional subrogation o a third person re*uires the consent o the original parties and o the third person 7#rticle 13.18

, ect o +ubrogation 1. # creditor, to whom partial payment has been made, may e$ercise his right or the remainder, and he shall be pre erred to the person who has been subrogated in his place in virtue o the partial payment o the same credit 7#rticle 13.;8

2. +ubrogation trans ers to the person subrogated the credit with all the rights thereto appertaining, either against the debtor or against third persons, be they guarantors or possessors o mortgages, sub&ect to stipulation in a conventional subrogation 7#rticle 13.38 ii. =assive sub&ective This is a change o debtor. Types o =assive +ub&ective 1. Expromission 7#rticle 12A38 4n expromission the changing o the debtor is not upon the old debtorCs initiative. 4t could be upon the initiative o the creditor or o the new debtor. This re*uires the consent o the creditor since the changing o the debtor may pre&udice him. This re*uires the consent o the new debtor since he is the one who will pay. The consent o the old debtor is not re*uired. The intent o the parties must be to release the old debtor. The release o the old debtor is absolute even i it turns out that the new debtor is insolvent. Cases o expromission are *uite rare. 4n delegacion the change is at the debtors initiative. The consent o the old debtor 7delegante8, the new debtor 7delegado8, and the creditor 7delegatario8 are all re*uired. The intent o the parties must be to release the old debtor. Fowever, release o the old debtor is not absolute. Fe may be held liable a. 4 the new debtor was already insolvent at the time o the delegacion" and b. +uch insolvency was either (nown to the old debtor or o public (nowledge b. -b&ective or )eal !ovation 4n ob&ective novation there is a change in the ob&ect or in the principal conditions. !ovation by a change in the principal conditions is the most problematic (ind o novation because one has to determine whether or not the change in the conditions is principal or merely incidental. 4 the amount o debt is increased, Castan thin(s that there is a novation while Caguioa thin(s there is no novation. =ro essor 9alane thin(s that Castan is correct. The old obligation is merged with the new.

2. Delegacion 7#rticle 12A08

4 the amount o the debt is decreased, according the +C in +andico vs. Piguing! there is no novation. -ne can loo( at the decrease o the amount as a partial remission. 4n 9illar vs. ;A! there is no novation i the terms o the payment are changed. 4n this case, there was a change rom lump sum to installment payments. 4n ?ua vs. Dap! not only was the amount reduced, mode o payment was changed rom single payment to installment. Finally, a mortgage was constituted. The +C said in ?ua vs. Dap that there was a novation. There ore, a mere change in the amount or mode o payment i ta(en singly is not a novation. 9ut ta(en together, there is a novation. 4n Inc$austi vs. Dulo, the +C said that the mere e$tension o time is not a novation or the period does a ects only the per ormance and not the creation o an obligation. 4n another case, the +C said that the shortening o the period is a novation. >i$ed is a combination o both sub&ective and ob&ective novation.

c. >i$ed !ovation )e*uisites o !ovation a. There must be a previous valid obligation The novation is void i the original obligation was void, e$cept when annulment may be claimed only by the debtor, or when rati ication validates acts which are voidable 7#rticle 12A@8 4 the original obligation was sub&ect to a suspensive or resolutory condition, the new obligation shall be under the same condition, unless it is otherwise stipulated 7#rticle 12AA8 =ro essor 9alane considers this as an e ect rather than a re*uisite o novation. 4n order that an obligation may be e$tinguished by another which substitute the same, it is imperative that it be so declared in une*uivocal terms, or that the old and the new obligations be on every point incompatible with each other 7#rticle 12A28 4 the new obligation is void, the original one shall subsist, unless the parties intended that the ormer relation should be e$tinguished in any event 7#rticle 12A?8

b. There must be an agreement o the parties to create the new obligation

c. There must be an e$tinguishments o the old obligation

d. The new obligation must be valid

, ect o !ovation #ccessory obligations may subsist only inso ar as they may bene it third persons who did not give their consent, e.g.! stipulation pour autrui General )ule* 4n a novation, the accessory obligation is e$tinguished.

Exception: 4n an active sub&ective novation, the guarantors, pledgors, mortgagors are not released. Under #rticle 13.3, accessory obligations are not e$tinguished. +o there is a con lict% Fow do you resolve% #ccording to commentators, #rticle 13.3 is an e$ception to #rticle 12A1. 9 owes E =1 >. > is a guarantor o 9. 9 is substituted by U. 9 is released. > is also released under #rticle 12A1. > is released since he guarantees %s per#ormance and not %s. % might have a good credit standing but U may not. > might be pre&udiced i he has to guarantee 5s per#ormance. 4 there is a change in the creditor under #rticle 13.3, the guarantor is not released since it doesnt make a di##erence. hat the guarantor guarantees is the integrity o the debtor.

?. #nnulment @. )escission A. Ful illment o a )esolutory Condition 1.. 11. 12. =rescription 'eath in Certain 4nstances For e$ample, death e$tinguishes obligations which are purely personal 7 i.e. obligations in marriage, obligation to support, obligations in a partnership, etc.8 )enunciation by the Creditor 7#rticle 18 The creditor waives the obligation. The renunciation need not be in any speci ic orm. )enunciation and remission are 2 di erent things. # renunciation is a re usal by the creditor to en orce his claim with the intention o waiving it. # remission is in the nature o a donation. Compromise #rrival o a )esolutory Term >utual 'issent or 'esistance 7+aura vs. D-P8 Unilateral Withdrawal 1@. General )ule* Unilateral withdrawals are not allowed. Exception: =artnership Change o Civil +tatus For e$ample, i the marriage is annulled, certain obligations are e$tinguished, li(e the obligations to live together and to support one another. Re5us +ic +tanti5us 7#rticle 121?8 Want o 4nterest Example: # owns a pe(ing duc( restaurant with a secret recipe or preparing pe(ing duc(. # disclosed the secret recipe to 9, his coo(. 9 is then prohibited in his employment contract to wor( in another restaurant

13.

1;. 10. 11. 1?.

1A. 2..

within 0 years #rom leaving $s restaurant. Two years a#ter % le#t, $ closes his restaurant and opens a hardware store. 9 can now wor( in a restaurant. 21. Iudicial 4nsolvency The e ect o &udicial insolvency is that all unpaid debts are written o or good. Thus, even i the debtor has improved his inancial situation because o &udicial insolvency, there is no need or the debtor to pay his unpaid debts.

++. Contracts A. General &ro(isions 1. Definition Art. 1305. A contract is a meeting of the minds between 4 persons whereb" one binds himself% with respect to the other% to give something or to render some service. =ro essor 9alane thin(s that the de inition in #rticle 13.0 is inaccurate. The term 2persons should be submitted by the term 2parties. $lso, contracts may be multilateral" there can be more than 2 parties involved 7i.e. partnership8.

2. Characteristics of Contracts a. ,'li/ator! .orce Art. 1315. Contracts are perfected b" mere consent% and from that moment the parties are bound not onl" to the fulfillment of what has been e,pressl" stipulated but also to all the conse-uences which% according to their nature% ma" be in keeping with good faith% usage and law. General )ule* principle o Contracts are per ected by mere consent the consensuality 7#rticle 13108

Exception: )eal contracts, such as deposit, pledge, and commodatum are not per ected until the delivery o the ob&ect o the obligation 7#rticle 13118 -bligations arising rom contracts have the orce o law between the parties and should be complied with in good aith 7#rticle 110A8

Art. 1314. An" third person who induces another to violate his contract shall be liable for damages to the other contracting part". 4t is not clear whether #rticle 131; is a tortious liability or a contractual liability. =ro essor 9alane considers it as only a tortious liability so it is not violative o the rule on relativity o contracts. #rticle 131; is really a *uasi/delict. )e*uisites i. ,$istence o a valid contract

ii. Enowledge by the 3

rd

person o the e$istence o the contract


rd

iii. 4nter erence by the 3 legal &usti ication b. 0utualit!

person in the contractual relation without

Art. 1308. The contract must bind both contracting parties2 its validit" or compliance cannot be left to the will of one of them. Art. 1309. The determination of the performance ma" be left to a third person% whose decision shall not be binding until it has been made known to both contracting parties. Art. 1310. The determination shall not be obligator" if it is evidentl" ine-uitable. +n such case% the courts shall decide what is e-uitable under the circumstances. #n e$ample o a determination made by a 3 rd the i$ing o the price by the 3 person.
rd

person 7#rticle 13.A8 is

The contract may be revo(ed i there is mutual dissent.

c. Relati(it! Art. 1311$ %1. Contracts take effect onl" between the parties% their assigns and heirs% e,cept in case where the rights and obligations arising from the contract are not transmissible b" their nature% or b" stipulation or b" provision of law. The heir is not liable be"ond the value of the propert" he received from the decedent. General )ule* The contract is binding only upon the parties and their successors 7#rticle 13118. Fowever, i the contract is purely personal 7intuitu personae8, then the contract will not bind assigns and heirs. Exception: 3 parties are a ected by the ollowing instances and can ta(e appropriate action i. Accion pauliana 7#rticle 11??8 Art. 1177. The creditors% after having pursued the propert" in possession of the debtor to satisf" their claims% ma" e,ercise all the rights and bring all the actions of the latter for the same purpose% save those which are inherent in his person2 the" ma" also impugn the acts which the debtor ma" have done to defraud them. #n rescissory action involving a contract in raud o creditors. cases contract in the

Art. 1313. Creditors are protected in of contracts intended to defraud them. ii. Accion directa

# direct 7not subrogatory8 action by the creditor against his debtors debtor, a remedy which gives the creditor the prerogative to act in his own name, such as the actions o the lessor against the sublessee 7#rticle 1102 8, the laborer o an independent contractor against the owner 7#rticle 1?2A 8, the principal against the subagent 7#rticle 1@A3 8, and the vendor/ a/retro against the trans eree o the vendee 7#rticle 11.@ 8.

iii. Article *)*& Art. 1312. +n contracts creating real rights% third persons who come into possession of the object of the contract are bound thereb"% subject to the provisions of the :ortgage !aw and the !and )egistration !aws. iv. +tipulation pour autrui stipulation in avor o a 3
rd

person

Art. 1311$ %2. +f a contract should contain some stipulation in favor of a third person% he ma" demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearl" and deliberatel" conferred a favor upon a third person. )e*uisites 1. There must be a stipulation in avor o a 3 2. That stipulation in avor o a 3 not the whole o the contract
rd rd

person

person should be a part and

Art. *'%&. The sublessee is subsidiarily liable to the lessor or any rent due rom the lessee. Fowever, the sublessee shall not be responsible beyond the amount o rent due rom him, in accordance with the terms o the sublease, at the time o the e$tra/&udicial demand by the lessor. =ayments o rent in advance by the sublessee shall be deemed not to have been made, so ar as the lessorCs claim is concerned, unless said payments were e ected in virtue o the custom o the place.

Art. *1&2. Those who put their labor upon or urnish materials or a piece o wor( underta(en by the contractor have an action against the owner up to the amount owing rom the latter to the contractor at the time the claim is made. Fowever, the ollowing shall not pre&udice the laborers, employees and urnishers o materials6 718 =ayments made by the owner to the contractor be ore they are due" 728 )enunciation by the contractor o any amount due him rom the owner. This article is sub&ect to the provisions o special laws.

Art. */2). 4n the cases mentioned in !os. 1 and 2 o the preceding article, the principal may urthermore bring an action against the substitute with respect to the obligations which the latter has contracted under the substitution.

Art. *'0/. The vendor may bring his action against every possessor whose right is derived rom the vendee, even i in the second contract no mention should have been made o the right to repurchase, without pre&udice to the provisions o the >ortgage 5aw and the 5and )egistration 5aw with respect to third persons.

3. # clear and deliberate intent to con er a bene it on a 3 person and not merely incidental

rd

4n the case o 9andarin >illa vs. ;A! the credit card holder was held to have a right to sue under the contract between the establishment and the ban(. The +upreme *ourt said that its a stipulation pour autrui to con er bene it on the customer to purchase on credit. Fowever, =ro essor 9alane believes that it is debatable whether an agreement between a credit card company and establishment is a clear and deliberate con erment o bene it on a third party. Fe would have concurred with the decision in 9andarin >illa i the basis was *uasi/ delict.

;. That the avorable stipulation should not be conditioned or compensated by any (ind o obligation whatever 0. !either o the contracting parties bears rd representation o authori3ation o the 3 parties
rd

the

legal

4 the 3 parties is represented, then the principles o agency apply.


rd

1. The 3 person must have communicated his acceptance to the obligor be ore its revocation d. Autono ! o. ;ill

Art. 1306. The contracting parties ma" establish such stipulations% clauses% terms and conditions as the" ma" deem convenient% provided the" are not contrar" to law% morals% good customs% public order% or public polic". 3. 8lements of a Contract a. Essential Ele ents There is no contract unless the following

Art. 1318. re-uisites concur*

3'5 Consent of the contracting parties2 345 #bject certain which is the subject matter of the contract2 365 Cause of the obligation which is established. The essential elements are those without which there can be no contract. These elements are, in turn, subdivided into common 7communes8, special 7especiales8, and e$traordinary 7especialisimos8. The common elements are those which are present in all contracts, such as consent, ob&ect certain, and cause. The special elements are present only in certain contracts, such as delivery in real contracts or orm in solemn ones. The e$traordinary elements are those which are peculiar to a speci ic contract 7i.e. price in sales8. i. ;onsent

1. Consent in 2eneral 'e inition o Consent Art. 1319$ 1 sentence. Consent is manifested b" the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. ,lements o Consent a. =lurality o sub&ects b. Capacity c. 4ntelligent and ree will d. ,$press or tacit mani estation o the will e. Con ormity o the internal will and its mani estation 2. - er #n o er is a unilateral proposition which 1 party ma(es to the other or the celebration o a contract. Art. 1321. The person making the offer ma" fi, the time% place% and manner of acceptance% all of which must be complied with. )e*uisites o - er a. 'e inite The o er must be de inite, so that upon acceptance, an agreement can be reached on the whole contract. The o er must be complete, indicating with su icient clearness the (ind o contract intended and de initely stating the essential conditions o the proposed contract as well as the non/essential ones desired by the o eror. #n o er without seriousness, made in such manner that the other party would not ail to notice such lac( o seriousness, is absolutely without &uridical e ects and cannot give rise to a contract 7i.e. must not be made in &est, or a pran(8.
st

b. Complete

c. 4ntentional

3. #cceptance a. )e*uisites o #cceptance i. Une*uivocal 4 the acceptance is *uali ied, then that is a counter/ rd o er 7#rticle 131A, 3 sentence8. ii. Unconditional

#n ampli ied acceptance may or may not be an acceptance o the original o er. 4t depends on the circumstances. Example: # o ers to sell 1... (ilos o cement. 9 says he wants to buy 2... (ilos o cement. 4s the 1... (ilos accepted% 4t depends. 4 buyer wants a bloc( sale, that is, only 2... (ilos and nothing less, then it is a counter/o er.

b. >ani estation o #cceptance Art. 1320. implied. An acceptance ma" be e,press or

+ilence is ambiguous. +ilence in itsel is neither acceptance nor re&ection. Can it mean acceptance% -ne must loo( at the circumstances. Examples: # and 9 are own stalls which sell rice. C delivers 1... (ilos o rice to # every +unday. 4 # is not there, * ;ust leaves it with $s assistant. * tries to do business with 9. 9 is not there though. C leaves rice with %s assistant. % does not call *. %oth $ and % are silent. # accepted the rice because o the arrangement. 4 # did not want to accept the rice, then # should have called. %s silence is not acceptance.

c. Cognition Theory Article 1319$ 2 %. Acceptance made b" letter of telegram does not bind the offerer e,cept from the time it came to his knowledge. This is (nown as the Cognition Theory. Commercial law uses the Theory o >ani estation. - er and acceptance ta(es e ect only rom the time (nowledge is ac*uired by the person to whom it is directed. 4 during intervening time, the o er or acceptance is e$tinguished by deathHinsanity, such o er or acceptance has no more e ect. Example: - eror gave o er on >arch 1. The o er reached the o eree on >arch 0. From the point o view o the o eror, o er is counted rom >arch 0. Fe can still countermand be ore >arch 0. 4 the parties are ace to ace, then there is no problem since there is no time gap. The problem arises when there is a time gap. Under #rticle 131A, there is per ection o the contract when there is knowledge o# the other partys acceptance. This has serious conse*uences. Example *. The o er was made in 'avao on February 1. The o er was sent through mail which is received in >anila on February 0. -n the same day, the o er is accepted. >ail is sent to 'avao on February 0 signi ying
n+

acceptance. -n February @, the party in >anila becomes insane. -n February 13, the mail reaches 'avao. #ccording to =ro essor 9alane, under #rticle 1323, there is no contract since there was no contractual capacity. Example &. The o er was made in 9acolod on >arch 1. 4t was received in Kue3on City on >arch 3. -n >arch ;, the o eree sends his acceptance. -n >arch 0, the o eror countermands o er. !ow, both acceptance and countermand o o er are in the mail. Whichever reaches the destination irst will be counted. d. - ers Through #gents Art. 1322. An offer made through an agent is accepted from the time acceptance is communicated to him. e. , ect o 'eath, 4nsanity Art. 1323. An offer becomes ineffective upon the death% civil interdiction% insanit" or insolvenc" of either part" before acceptance is conve"ed. . Withdrawal o the - er Art. 1324. /hen the offeror has allowed the offeree a certain period to accept% the offer ma" be withdrawn at an" time before acceptance b" communicating such withdrawal% e,cept when the option is founded upon consideration% something paid or promised. #rticle 132; is related to #rticle 1;?A, :2 . They actually say the same thing. + o ers to sell a car to 9 or =3..,.... 9 needs to thin( about it, and so 9 as(s or 3. days and pays + =0,.... The payment o =0,... is a distinct consideration rom the price o the car. This distinct consideration o =0,... is payment or the 3. days. 9 is paying or time. The option contract is separate rom the contract o sale. + cannot sell the car to anybody else within that 3./day period. 4 + sells the car to someone else within the 3./ day period, he is guilty o contractual breach. 9ut 9 can buy the car be ore the end o the 3./day period and such will be a valid sale. + o ers to sell a car to 9 or =3..,.... 9 needs to thin( about it, and so 9 as(s or 3. days. 9 does not pay + or time, but + promises to give 9 3. days. 4n this case there is no option contract. Fowever, in +anc$e vs. Rigos, the +upreme Court said that even i there was no option contract, + must still communicate the withdrawal

Art. *412! (&. #n accepted unilateral promise to buy or to sell a determinate thing or a price certain is binding upon the promissor i the promise is supported by a consideration distinct rom the price.

o the o er to 9. 4 + does not communicate his withdrawal, that is tantamount to a continuing o er. =ro essor 9alane does not agree with this. #ccording to him, i there is no valid option contract, there should be no continuing o er. #ccording to =ro essor 9alane, the +upreme Court should have e$plained that. + o ers to sell a car to 9 or =3..,.... 9 needs to thin( about it, and so 9 as(s or 3. days and pays =0,... to +. 9 decides to buy the car within 3. days. The car is not sold to anybody else. + does not want to sell the car to 9. 9 can sue + or speci ic per ormance compel + to sell him the car. + o ers to sell a car to 9 or =3..,.... 9 needs to thin( about it, and so 9 as(s or 3. days and pays =0,... to +. 9 decides to buy the car within 3. days. 9e ore 9 is able to buy the car, + sells the car to N. 9 can sue + or damages. 9 cannot sue or speci ic per ormance since the car has been sold to an innocent purchaser. # right o irst re usal is di erent rom an option contract. # right o irst re usal is the right to have irst opportunity to purchase or the right to meet any other o er. -n the other hand, an option contact limits the promissors power to revoke an o##er. The right o# #irst re usal is not covered by the Civil Code. # right o irst re usal is a statement by a person to another that i the ormer decides to sell the ob&ect, the latter will have the irst o er. Fere, the ob&ect is determinable. 9ut the e$ercise o the right to buy is conditioned on the sellers decision to sell on terms which are not yet certain. #ccording to E=uatorial vs. 9a8"air! the re*uirement o separate consideration is not applicable in a right o irst re usal. #ccording to =ro essor 9alane, this is peculiar since an option contract is more irm and yet it re*uires the payment o separate consideration but a right o irst re usal does not. Fowever, in Liton#ua vs. ;A! the +upreme Court said that in a right o irst re usal, the consideration or the loan or mortgage is already a part o the consideration or the right o irst re usal. 4n Ang Du vs. ;A, the +C said that an action or speci ic per ormance will not lie against the promissor. Fowever, a complaint under #rticle 1A or damages may be iled i the actions o the promissor are whimsical. 4n E=uatorial vs. 9a8"air the right o irst re usal was violated when the vendor sold the ob&ect to another person. The +C in E=uatorial vs. 9a8"air said that an action or speci ic per ormance may be iled. E=uatorial vs. 9a8"air is totally inconsistent with Ang Du vs. ;A.

The +upreme Court has held (E=uatorial vs. 9a8"air! ParaBa=ue Kings vs. ;A! Liton#ua vs. ;A! PCP vs. ;A) that the right o irst re usal is en orceable by an action or speci ic per ormance. #nd that the actual vendee may be re*uired to sell the property to the holder o the right o irst re usal at the price which he bought it. Fowever, in a recent case, Rosencorr vs. ;A (9arc$ /! &00*)! the +upreme Court has held that the right o irst re usal need not be written to be unen orceable since it is not included in the +tatute o Frauds. #lso, i the vendee is in good aith, he may not be compelled by speci ic per ormance since he relied on a title which is clean. The remedy is to go a ter the vendor. 4n a right o irst re usal, there is no de inite o er since the vendor has to option o deciding not to sell the ob&ect. #lso, in a right o irst re usal, there is no need or a separate consideration. 4n an option contract, there is a de inite o er. #ccording to =ro essor 9alane, the right o irst re usal is in erior to an option contract since there is no de inite o er. =ro essor 9alane does not understand why an action or speci ic per ormance is allowed in violations o rights o irst re usal but not in the case o option contracts when the ob&ect is sold to another person. Why is the +C giving greater legal e ect to a right o irst re usal which is more tentative% #lso, where the +C get these rules since the right o irst re usal is not covered by the Civil Code.

g. #dvertisements Art. 1325. =nless it appears otherwise% business advertisements of things for sale are not definite offers% but mere invitations to make an offer. Art. 1326. Advertisements for bidders are simpl" invitations to make proposals% and the advertiser is not bound to accept the highest or lowest bidder% unless the contrar" appears. >ost advertisements are simply invitations to ma(e an o er and are not o ers in themselves since not all the necessary terms can it in the advertisement. +ven i# the ad had all the necessary terms, its still an invitation to ma(e o er since there is no de inite person to whom the o er is being made 7public o er8.

h. +imulated Contracts Art. 1345. >imulation of a contract ma" be absolute or relative. The former takes place when the parties do not intend to be bound at all2 the latter% when the parties conceal their true agreement. Art. 1346. An absolutel" simulated or fictitious contract is void. A relative simulation% when it does

not prejudice a third person and is not intended for an" purpose contrar" to law% morals% good customs% public order or public polic" binds the parties to their real agreement. i. #bsolutely +imulated 7contrato simulado8 #bsolute simulation o a contract ta(es place when the parties do not intent to be bound at all 7#rticle 13;08. For e$ample, N pretends to sell his car to avoid ta$ liability. Fowever N has no real intention to sell the car. #n absolutely simulated or ictitious contract is void 7#rticle 13;18 )elative simulation o a contract ta(es place when the parties conceal their true agreement 7#rticle 13;08. 4n a relatively simulated contract, the parties enter into a contract but disguise it as another. For e$ample, N has many creditors, and they are going a#ter Gs car. G cannot donate his car to D since the creditors will &ust resort to accion pauliana. +o, N antedates a contract o sale, selling his car to D, e4cept that Gs intention is to donate his car to F. # relatively simulated contract, when it does not rd pre&udice a 3 person and is not intended or any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their real agreement 7#rticle 13;18. The law will apply the rules o the true contract and not the ostensible contract.

ii. )elatively +imulated 7contrato disimulado8

ii. .5#ect

Art. 1347. All things which are not outside the commerce of men% including future things% ma" be the object of a contract. All rights which are not intransmissible ma" also be the object of contracts. 1o contract ma" be entered into upon future inheritance e,cept in cases e,pressl" authori$ed b" law. All services which are not contrar" to law% morals% good customs% public order or public polic" ma" likewise be the object of a contract. Art. 1348. +mpossible things or services cannot be the object of contracts. Art. 1349. The object of ever" contract must be determinate as to its kind. The fact that the -uantit" is not

determinate shall not be an obstacle to the e,istence of the contract% provided it is possible to determine the same% without the need of a new contract between the parties. The ob&ect o the contract is the prestation. Thus, it is always the conduct which is to be observed. 4t is not a concrete ob&ect li(e a car. 4n a contract o sale, the ob&ect is the delivery o the ob&ect and not the ob&ect itsel . The provisions on ob&ect however blur the distinction between the ob&ect o the contract, the prestation, and the ob&ect o the prestation. #ccording to =ro essor 9alane, these provisions are not atal though. )e*uisites o -b&ect 1. The ob&ect must be within the commerce o already e$isting or in potency 7#rticle 13;?8 man, either

Within the commerce o man means that the ob&ect is capable o appropriation and transmission. The term 2in potency means that the ob;ect will come into e$istence in the uture. 2enerally in reciprocal contracts particularly sales, the sale o uture things is allowed. For e$ample, it is possible to sell the uture harvest o a arm. The coming into being o the uture thing is a suspensive condition. Emptio rei speratae is a conditional sale. There is a suspensive condition. 4 the uture thing does not come into e$istence, then there is no contract o sale. Emptio spei is the sale o a hope. ,ven i the uture thing does not materiali3e, the buyer must pay since the buyer is ta(ing a chance. 7i.e. sale o lotto tic(et8. Fope is a present thing. +ome uture things are not allowed to be ob&ects o the prestation. The law does not allow contracts on uture inheritance.

2. The ob&ect must licit, or not be contrary to law, morals, good customs, public policy or public order 7#rticle 13;?8 3. The ob&ect must be possible 7#rticle 13;@8 4 the ob&ect is impossible, then the contract is void or lac( o cause. #rticle 13;@ does not tal( o supervening impossibility which is a mode o e$tinguishments. 4mpossibility under #rticle 13;@ must be actual and contemporaneous with the ma(ing o the contract.

;. The ob&ect must be determinate as to its (ind and determinable as to its *uantity 7#rticle 13;A8

The ob&ect need not be individuali3ed. determinate as to its (ind or species.

4t must be

The *uantity o the ob&ect may be indeterminate, so long as the right o the creditor is not rendered illusory. This is actually a redundancy since this is already in the re*uisite o being within the commerce o man.

0. The ob&ect must be transmissible iii. ;ause Art. 1350. +n onerous contracts the cause is understood to be% for each contracting part"% the prestation or promise of a thing or service b" the other2 in remunerator" ones% the service or benefit which is remunerated2 and in contracts of pure beneficence% the mere liberalit" of the benefactor. Art. 1351. The particular motives of the parties in entering into a contract are different from the cause thereof. Art. 1352. Contracts without cause% or with unlawful cause% produce no effect whatever. The cause is unlawful if it is contrar" to law% morals% good customs% public order or public polic". Art. 1353. The statement of a false cause in contracts shall render them void% if it should not be proved that the" were founded upon another cause which is true and lawful. Art. 1354. Although the cause is not stated in the contract% it is presumed that it e,ists and is lawful% unless the debtor proves the contrar". Art. 1355. 8,cept in cases specified b" law% lesion or inade-uac" of cause shall not invalidate a contract% unless there has been fraud% mistake or undue influence. The cause o# a contract is the 2why o# the contract, the immediate and most pro$imate purpose o the contract, the essential reason which impels the contracting parties to enter into it and which e$plains and &usti ies the creation o the obligation through such contract. The cause is di erent rom consideration. Consideration in the #nglo/#merican sense must always be valuable or capable o pecuniary estimation. Cause, on the other hand, need not be material at all, and may consist in a moral satis action or the promissor. )e*uisites o Cause 1. 4t must e$ist 2. 4t must be true

3. 4t must be licit Cause is di erent rom motive. Cause is the pro$imate why while motive is the ultimate why. For e$ample, # wants to sell his house or =1. > because # is moving to Canada. 9 is willing to buy the house or =1. >. 4n this case, the cause or # is the &A( ) while the cause #or % is the house. $s motive is to dispose o the house which he does not need since # is going to Canada. 5i(e ailure o or lac( o ob&ect, the ailure o cause has an e ect on the contract. 4 there is no cause or the cause is illegal, then the contract is void. This is unli(e the lac( o consent. When consent is lac(ing, the contract is not void. The contract is merely voidable. General )ule* Failure o motive as a General )ule does not a ect the contract. Exception: >otive a ects the contract when 1. The motive becomes a suspensive condition" or 2. The reali3ation o the motive is the cause or the contract and there is an intervening serious mista(e o act

4n onerous contracts, the cause is the prestation or promise o a thing or service by the other party. 4t has been held that, as a mortgage is an accessory contract, its cause or consideration is the very cause or consideration o the principal contract, rom which it receives its li e, and without which it cannot e$ist as an independent contract (;$ina -an6 vs. Lic$auco).

4n remuneratory contracts, the cause is the service or bene it which is remunerated . # remuneratory contract is one where a party gives something to another because o some service or bene it given or rendered by the latter to the ormer, where such service or bene it was not due as a legal obligation.

4n gratuitous contracts, the cause is the mere liberality o the bene actor. 'elivery or real contracts Form or ormal contracts ents

b. #atural Ele

The natural elements are those which are derived rom the nature o the contract and ordinarily accompany the same. They are presumed by law, although they can be e$cluded by the contracting parties i they so desire. i. )ight to resolve 7#rticle 11A18 ii. Warranties in sales contracts

c. Acci+ental Ele

ents

The accidental elements are those which e$ist only when the parties e$pressly provide or them or the purpose o limiting or modi ying the normal e ects o the contract 7i.e. conditions, terms, modes8

;. >tages of a Contract a. =reparation, conception, or generation, which is the period o negotiation and bargaining, ending at the moment o agreement o the parties b. =er ection or birth o the contract, which is the moment when the parties come to agree on the terms o the contract General )ule* principle o Contracts are per ected by mere consent the consensuality 7#rticle 13108

Exception: )eal contracts, such as deposit, pledge, and commodatum are not per ected until the delivery o the ob&ect o the obligation 7#rticle 13118

c. Consummation or death, which is the ul illment or per ormance o the terms agreed upon 0. Classification of Contracts a. #ccording to 'egree o 'ependence i. =reparatory # preparatory contract is one which has or its ob&ect the establishment o a condition in law which is necessary as a preliminary step towards the celebration o another subse*uent contract 7i.e. partnership, agency8. # principal contract is one which can subsist independently rom other contracts and whose purpose can be ul illed by themselves 7i.e. sales, lease8. #n accessory contract is one which can e$ist only as a conse*uence o , or in relation with, another prior contract 7i.e. pledge, mortgage8.

ii. =rincipal

iii. #ccessory

b. #ccording to =er ection i. Consensual # consensual contract is one which is per ected by mere agreement o the parties 7i.e. sales, lease8. # real contract is one which re*uires not only the consent o the parties or their per ection, but also the delivery o the ob&ect by 1 party to the other 7i.e. commodatum, deposit, pledge8.

ii. )eal

c. #ccording to their Form i. Common or in ormal #n in ormal contract is one which does not re*uire some particular orm 7i.e. loan, lease8.

ii. +pecial or ormal # ormal contract is one which re*uires some particular orm 7 i.e. donation, chattel mortgage8.

d. #ccording to =urpose i. Trans er o ownership 7i.e. sale8 ii. Conveyance o use 7i.e. commodatum8 iii. )endition o service 7i.e. agency8 e. #ccording to +ub&ect >atter i. . Things 7i.e. sale, deposit, pledge8 ii. +ervices 7i.e. agency, lease o services8 #ccording to the !ature o the -bligation i. 9ilateral # bilateral contract is one which gives rise to reciprocal obligations or both parties 7i.e. sale, lease8. # unilateral contract is one which gives rise to an obligation or only 1 o the parties 7i.e. commodatum, gratuitous deposit8.

ii. Unilateral

g. #ccording to Cause i. -nerous #n onerous contract is one in which each o the parties aspires to procure or himsel a bene it through the giving o an e*uivalent or compensation 7i.e. sale8. # gratuitous contract is one in which one o the parties proposes to give to the other a bene it without any e*uivalent or compensation 7i.e. commodatum8.

ii. 2ratuitous

h. #ccording to )is( i. Commutative # commutative contract is one in which each o the parties ac*uires an e*uivalent o his prestation and such e*uivalent is pecuniarily appreciable and already determined rom the moment o the celebration o the contract 7i.e. lease8. #n aleatory contract is one in which each o the parties has to his account the ac*uisition o an e*uivalent prestation , but such e*uivalent, although pecuniarily appreciable, is not yet determined, at the moment o the celebration o the contract, since it depends upon the happening o an uncertain event, thus charging the parties with the ris( o loss or gain 7i.e. insurance8.

ii. #leatory

i.

#ccording to !ame i. !ominate

# nominate contract is one which has a name and is regulated by special provisions o law 7i.e. sale, lease8

ii. 4nnominate Art. 1307. +nnominate contracts shall be regulated b" the stipulations of the parties% b" the provisions of Titles + and ++ of this Fook% b" the rules governing the most analogous nominate contracts% and b" the customs of the place. #n innominate contract is one that does not have a name and is not regulated by special provisions o law. # contract is not void &ust because it has no name. 4t is not a re*uisite or validity. # contract may have no name but it can be valid provided it has all the elements o a contract and all the restrictions are respected. ; Classes o 4nnominate Contracts F. )or do ut des ?2I give that you give@ do ut "acias ?2I give that you do@ "acio ut des ?2I do that you give@ "acio ut "acias ?2I do that you do@

o. *ontracts

Art. 1356. Contracts shall be obligator"% in whatever form the" ma" have been entered into% provided all the essential re-uisites for their validit" are present. 7owever% when the law re-uires that a contract be in some form in order that it ma" be valid or enforceable% or that a contract be proved in a certain wa"% that re-uirement is absolute and indispensable. +n such cases% the right of the parties stated in the following article cannot be e,ercised. Art. 1357. +f the law re-uires a document or other special form% as in the acts and contracts enumerated in the following article% the contracting parties ma" compel each other to observe that form% once the contract has been perfected. This right ma" be e,ercised simultaneousl" with the action upon the contract. Art. 1358. The following must appear in a public document* 3'5 Acts and contracts which have for their object the creation% transmission% modification or e,tinguishment of real rights over immovable propert"2 sales of real propert" or of an interest therein a governed b" articles ';D6% 1o. 4% and ';D(2 345 The cession% repudiation or renunciation of hereditar" rights or of those of the conjugal partnership of gains2 365 The power to administer propert"% or an" other power which has for its object an act appearing or which should appear in a public document% or should prejudice a third person2

3;5 The cession of actions or rights proceeding from an act appearing in a public document. All other contracts where the amount involved e,ceeds five hundred pesos must appear in writing% even a private one. Fut sales of goods% chattels or things in action are governed b" articles% ';D6% 1o. 4 and ';D(. General )ule* There is no need or a speci ic orm, but there must still be some mani estation o consent. Exception: When the written orm is re*uired 1. For validity 4 it not written, the same is void. ,$amples are donations 7#rticles ?;@, ?;A8, antichresis 7#rticle 213;8, interest in a loan 7#rticle 1A018, sale o land by an agent 7#rticle 1@?;8, contribution o immovables in a partnership 7#rticle 1??38 The contract is unen orceable i it is not written. a. #n agreement that by its terms is not to be per ormed within a year rom the ma(ing thereo 7#rticle 1;.3 7a88 b. # special promise to answer or the debt, de ault or miscarriage o another 7#rticle 1;.3 7b88 c. #n agreement made in consideration o marriage, other than a mutual promise to marry 7#rticle 1;.3 7c88 d. #n agreement or the sale o goods, chattels or things in action, at a price not less than =0.., unless the buyer accepts and receives part o such goods and chattels, or the evidence, or some o them, o such things in action, or pay at the time some part o the purchase money" but when a sale is made by auction and entry is made by the auctioneer in his sales boo(, at the time o sale, o the amount and (ind o property sold, terms o sale, price, names o the purchasers and person on whose account the sale is made, it is a su icient memorandum 7#rticle 1;.3 7d88 e. #n agreement o lease or a period o more than 1 year, or the sale o real property or o an interest therein 7#rticle 1;.3 7e88 . # representation as to the credit o a 3
rd

2. For en orceability

person 7#rticle 1;.3 7 88

g. !o e$press trusts concerning an immovable or any interest therein may be proved by parol evidence 7#rticle 1;;38 3. For registrability The ollowing must appear in a public instrument6 a. #cts and contracts which have or their ob&ect the creation, transmission, modi ication or e$tinguishment o real rights over immovable property" sales o real property or o an interest therein governed by #rticles 1;.3 728 and 1;.0 b. The cession, repudiation or renunciation o those o the con&ugal partnership o gains hereditary rights or o

c. The power to administer property, or any other power which has or its ob&ect an act appearing or which should appear in a public rd document, or should pre&udice a 3 person d. The cession o actions or rights proceeding rom an act appearing in a public document Contracts enumerated in #rticle 130@ are valid as between the contracting parties even when they have not been reduced to public or private writings. ,$cept in certain cases where public instruments and registration are re*uired or the validity o the contract itsel , the legali3ation o a contract by means o a public writing and its entry in the register are not essential solemnities or re*uisites or the validity o the contract as between the contracting parties, but are re*uired or the purposes o rd ma(ing it e ective as against 3 person. #rticle 130? gives the contracting parties the coercive power to reciprocally compel the e$ecution o the ormalities re*uired by law, as soon as the re*uisites or the validity o the contracts are present. ation o. 3nstru ents

C. Re.or

Art. 1359. /hen% there having been a meeting of the minds of the parties to a contract% their true intention is not e,pressed in the instrument purporting to embod" the agreement% b" reason of mistake% fraud% ine-uitable conduct or accident% one of the parties ma" ask for the reformation of the instrument to the end that such true intention ma" be e,pressed. +f mistake% fraud% ine-uitable conduct% or accident has prevented a meeting of the minds of the parties% the proper remed" is not reformation of the instrument but annulment of the contract. Art. 1360. The principles of the general law on the reformation of instruments are hereb" adopted insofar as the" are not in conflict with the provisions of this Code. Art. 1361. /hen a mutual mistake of the parties causes the failure of the instrument to disclose their real agreement% said instrument ma" be reformed. Art. 1362. +f one part" was mistaken and the other acted fraudulentl" or ine-uitabl" in such a wa" that the instrument does not show their true intention% the former ma" ask for the reformation of the instrument. Art. 1363. /hen one part" was mistaken and the other knew or believed that the instrument did not state their real agreement% but concealed that fact from the former% the instrument ma" be reformed. Art. 1364. /hen through the ignorance% lack of skill% negligence or bad faith on the part of the person drafting the instrument or of the clerk or t"pist% the instrument does not e,press the true intention of the parties% the courts ma" order that the instrument be reformed.

Art. 1365. +f two parties agree upon the mortgage or pledge of real or personal propert"% but the instrument states that the propert" is sold absolutel" or with a right of repurchase% reformation of the instrument is proper. Art. 1366. There shall be no reformation in the following cases* 3'5 >imple donations inter vivos wherein no condition is imposed2 345 /ills2 365 /hen the real agreement is void. Art. 1367. /hen one of the parties has brought an action to enforce the instrument% he cannot subse-uentl" ask for its reformation. Art. 1368. )eformation ma" be ordered at the instance of either part" or his successors in interest% if the mistake was mutual2 otherwise% upon petition of the injured part"% or his heirs and assigns. Art. 1369. The procedure for the reformation of instrument shall be governed b" rules of court to be promulgated b" the >upreme Court. -nce the minds o the contracting parties meet, a valid contract e$ists, whether the agreement is reduced to writing or not. There are instances however, where in reducing their agreements to writing, the true intention o the contracting parties are not correctly e$pressed in the document, either by reason o mista(e, raud, ine*uitable conduct or accident. 4t is in such cases that re ormation o instruments is proper. The action or such relie rests on the theory that the parties came to an understanding, but in reducing it to writing, through mutual mista(e, raud or some other reason, some provision was omitted or mista(enly inserted, and the action to change the instrument so as to ma(e it con orm to the contract agreed upon. )e ormation 'istinguished rom #nnulment The action or re ormation o instruments presupposes that there is a valid e$isting contract between the parties, and only the document or instrument which was drawn up and signed by them does not correctly e$press the terms o their agreement. -n the other hand, i the minds o the parties did not meet, or i the consent o either one was vitiated by violence or intimidation or mista(e or raud, so that no real and valid contract was made, the action is or annulment. #nnulment involves a complete nulli ication o re ormation gives li e to it upon certain corrections. the contract while

-peration and , ect o )e ormation Upon re ormation o an instrument, the general rule is that it relates bac( to, and ta(es e ect rom the time o its original e$ecution, especially as between the parties.

)e*uisites o )e ormation 1. There must have been a meeting o the minds upon the contract

2. The instrument or document evidencing the contract does not e$press the true agreement between the parties 3. The ailure o the instrument to e$press the agreement must be due to mista(e, raud, ine*uitable conduct or accident )e*uisites o >ista(e a. That the mista(e is one o act Whenever an instrument is drawn with the intention o carrying an agreement previously made, but which, due to mista(e or inadvertence o the dra tsman or cler(, does not carry out the intention o the parties, but violates it, there is a ground to correct the mista(e by re orming the instrument. # written instrument may be re ormed where there is a mista(e on 1 side and raud or ine*uitable conduct on the other, as where 1 party to an instrument has made a mista(e and the other (nows it and conceals the truth rom him. The mista(e o 1 party must re er to the contents o the instrument and not the sub&ect mater or the principal conditions o the agreement. 4n the latter case, an action or annulment is the proper remedy. 4 2 parties agree upon the mortgage or pledge o real property or personal property, but the instrument states that the property is sold absolutely or with a right o repurchase, re ormation is proper.

b. That it was common to both parties

c. The proo o mutual mista(e must be clear and convincing 5imitations o )e ormation 1. )e ormation is not proper in the ollowing cases6 a. +imple donations inter vivos wherein no condition is imposed b. Wills c. When the real agreement is void 2. Who may as( or re ormation a. 4 the mista(e is mutual )e ormation may be ordered at the instance o either party or his successors in interest )e ormation may be ordered upon petition o the in&ured party or his heirs and assigns

b. 4 the mista(e is not mutual

3. , ect o en orcing an action When one o the parties has brought an action to en orce the instrument, he cannot subse*uently as( or its re ormation.

D. 3nterpretation o. *ontracts Where the parties have reduced their contract into writing, the contents o the writing constitutes the sole repository o the terms o the agreement between the parties. Whatever is not ound in the writing must be understood as waived and abandoned. 2enerally, there ore, there can be no evidence o the terms o the contract other than the contents o the writing, unless it is alleged and proved that the intention o the parties is otherwise.

Art. 1370. +f the terms of a contract are clear and leave no doubt upon the intention of the contracting parties% the literal meaning of its stipulations shall control. +f the words appear to be contrar" to the evident intention of the parties% the latter shall prevail over the former. When the terms o the agreement are so clear and e$plicit that they do not &usti y an attempt to read into it any alleged intention o the parties, the terms are to be understood literally &ust as they appear on the ace o the contract. When the true intent and agreement o the parties is established, it must be given e ect and prevail over the bare words o the written agreement.

Art. 1371. +n order to judge the intention of the contracting parties% their contemporaneous and subse-uent acts shall be principall" considered. Art. 1372. 7owever general the terms of a contract ma" be% the" shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree. Art. 1373. +f some stipulation of an" contract should admit of several meanings% it shall be understood as bearing that import which is most ade-uate to render it effectual. Art. 1374. The various stipulations of a contract shall be interpreted together% attributing to the doubtful ones that sense which ma" result from all of them taken jointl". Where the instrument is susceptible o 2 interpretations, 1 which will ma(e it invalid and illegal, and another which will ma(e it valid and legal, the latter interpretation should be adopted. 4n the construction o an instrument where there are several provisions or particulars, such a construction is, i possible, to be adopted as will give e ect to all.

Art. 1375. /ords which ma" have different significations shall be understood in that which is most in keeping with the nature and object of the contract. Art. 1376. The usage or custom of the place shall be borne in mind in the interpretation of the ambiguities of a contract% and shall fill the omission of stipulations which are ordinaril" established.

When there is doubt as to the meaning o any particular language, it should be determined by a consideration o the general scope and purpose o the instrument in which it occurs. #n instrument may be construed according to usage in order to determine its true character.

Art. 1377. The interpretation of obscure words or stipulations in a contract shall not favor the part" who caused the obscurit". The party who draws up a contract in which obscure terms or clauses appear, is the one responsible or the obscurity or ambiguity" they must there ore be construed against him.

Art. 1378. /hen it is absolutel" impossible to settle doubts b" the rules established in the preceding articles% and the doubts refer to incidental circumstances of a gratuitous contract% the least transmission of rights and interests shall prevail. +f the contract is onerous% the doubt shall be settled in favor of the greatest reciprocit" of interests. +f the doubts are cast upon the principal object of the contract in such a wa" that it cannot be known what ma" have been the intention or will of the parties% the contract shall be null and void. Art. 1379. The principles of interpretation stated in )ule '46 of the )ules of Court shall likewise be observed in the construction of contracts. R1$e 1604 R1$e" -' C-1(% Sec. 10. 8nterpretation of a writing according to its legal meaning% ? T#e $ *.1 .e -' !()%)*. )" %- 2e )*%e(0(e%e+ cc-(+)*. %- %#e $e. $ /e *)*. )% 2e (" )* %#e 0$ ce -' )%" e;ec1%)-*4 1*$e"" %#e 0 (%)e" )*%e*+e+ -%#e(!)"e. Sec. 11. 8nstr ment constr ed so as to give effect to all provisions% ? I* %#e c-*"%(1c%)-* -' * )*"%(1/e*% !#e(e %#e(e (e "e5e( $ 0(-5)")-*" -( 0 (%)c1$ (". "1c# c-*"%(1c%)-* )"4 )' 0-"")2$e4 %- 2e +-0%e+ " !)$$ .)5e e''ec% %- $$. Sec. 12. 8nterpretation according to intention' general and partic lar provisions% ? I* %#e c-*"%(1c%)-* -' * )*"%(1/e*%4 %#e )*%e*%)-* -' %#e 0 (%)e" )" %- 2e 01("1e+> *+ !#e* .e*e( $ *+ 0 (%)c1$ ( 0(-5)")-* (e )*c-*")"%e*%4 %#e $ %%e( )" 0 ( /-1*% %- %#e '-(/e(. S- 0 (%)c1$ ( )*%e*% !)$$ c-*%(-$ .e*e( $ -*e %# % )" )*c-*")"%e*% !)%# )%. When a general and a particular provision are inconsistent, the particular provision will control.

Sec. 16. 8nterpretation according to circ mstances% ? F-( %#e 0(-0e( c-*"%(1c%)-* -' * )*"%(1/e*%4 %#e c)(c1/"% *ce" 1*+e( !#)c# )% ! " / +e4 )*c$1+)*. %#e ")%1 %)-* -' %#e "12Bec% %#e(e-' *+ -' %#e 0 (%)e" %- )%4 / , 2e "#-!*4 "- %# % %#e B1+.e / , 2e 0$ ce+ )* %#e 0-")%)-* -' %#-"e !#-"e $ *.1 .e #e )" %- )*%e(0(e%.

!ow, )ule 13., GG1./1A.

Sec. 1D. <ec liar signification of terms% ? T#e %e(/" -' !()%)*. (e 0(e"1/e+ %- # 5e 2ee* 1"e+ )* %#e)( 0()/ (, *+ .e*e( $ cce0% %)-*4 21% e5)+e*ce )" +/)"")2$e %- "#-! %# % %#e, # 5e $-c $4 %ec#*)c $4 -( -%#e(!)"e 0ec1$) ( ").*)')c %)-*4 *+ !e(e "- 1"e+ *+ 1*+e("%--+ )* %#e 0 (%)c1$ ( )*"% *ce4 )* !#)c# c "e %#e .(ee/e*% /1"% 2e c-*"%(1e+ cc-(+)*.$,. Sec. 1E. Written words control printed% ? W#e* * )*"%(1/e*% c-*")"%" 0 (%$, -' !()%%e* !-(+" *+ 0 (%$, -' 0()*%e+ '-(/4 *+ %#e %!- (e )*c-*")"%e*%4 %#e '-(/e( c-*%(-$" %#e $ %%e(. Sec. 18. EGperts and interpreters to !e sed in eGplaining certain writings% W#e* %#e c# ( c%e(" )* !#)c# * )*"%(1/e*% )" !()%%e* (e +)'')c1$% %- 2e +ec)0#e(e+4 %#e $ *.1 .e )" *-% 1*+e("%--+ 2, %#e c-1(%4 %#e e5)+e*ce -' 0e("-*" "&)$$e+ +ec)0#e()*. %#e c# ( c%e("4 -( !#- 1*+e("% *+ %#e $ *.1 .e4 )" +/)"")2$e %- +ec$ %#e c# ( c%e(" -( %#e /e *)*. -' %#e $ *.1 .e. ? -( )* (e

Sec. 1G. "f two constr ctions, which preferred% ? W#e* %#e %e(/" -' * .(ee/e*% # 5e 2ee* )*%e*+e+ )* +)''e(e*% "e*"e 2, %#e +)''e(e*% 0 (%)e" %- )%4 %# % "e*"e )" %- 0(e5 )$ . )*"% e)%#e( 0 (%, )* !#)c# #e "100-"e+ %#e -%#e( 1*+e("%--+ )%4 *+ !#e* +)''e(e*% c-*"%(1c%)-*" -' 0(-5)")-* (e -%#e(!)"e eI1 $$, 0(-0e(4 %# % )" %2e % &e* !#)c# )" %#e /-"% ' 5-( 2$e %- %#e 0 (%, )* !#-"e ' 5-( %#e 0(-5)")-* ! " / +e. Sec. 17. Constr ction in favor of nat ral right% ? W#e* * )*"%(1/e*% )" eI1 $$, "1"ce0%)2$e -' %!- )*%e(0(e% %)-*"4 -*e )" ' 5-( -' * %1( $ ().#% *+ %#e -%#e( . )*"% )%4 %#e '-(/e( )" %- 2e +-0%e+. Sec. 1H. 8nterpretation according to sage% ? A* )*"%(1/e*% / , 2e c-*"%(1e+ cc-(+)*. %- 1" .e4 )* -(+e( %- +e%e(/)*e )%" %(1e c# ( c%e(. 8. De.ecti(e *ontracts The remaining chapters deal with de ective contracts. The Civil Code made ma&or and important improvements on this topic. Unli(e the +panish Code, the de ective contracts were ambiguous and had unclear classi ications. They were simply void or voidable. Fere, in our present code, there are or types o de ective contracts, rom the serious to less serious, in the ollowing order6 Ooid Unen orceable Ooidable )escissible Fowever, our Code still has some imper ections. #s pointed out by Tolentino, there must be a 2relatively void contract. 3or e4ample, in an assignment o# lease without authority, this is void as to third parties, but valid as between the parties. There have been several cases decided by our +upreme Court wherein a chattel mortgage over real property was declared void as to third parties but valid as between the parties.

Whatever imper ections the Code has, it still is better than other codes on this topic. Art. 1380. Contracts validl" agreed upon ma" be rescinded in the cases established b" law. Art. 1381. The following contracts are rescissible* 3'5 Those which are entered into b" guardians whenever the wards whom the" represent suffer lesion b" more than one.fourth of the value of the things which are the object thereof2 345 Those agreed upon in representation of absentees% if the latter suffer the lesion stated in the preceding number2 365 Those undertaken in fraud of creditors when the latter cannot in an" other manner collect the claims due them2 3;5 Those which refer to things under litigation if the" have been entered into b" the defendant without the knowledge and approval of the litigants or of competent judicial authorit"2 All other contracts speciall" declared b" law to be subject to rescission.

1. )escissible Contracts

3(5

Art. 1382. Pa"ments made in a state of insolvenc" for obligations to whose fulfillment the debtor could not be compelled at the time the" were effected% are also rescissible. Art. 1383. The action for rescission is subsidiar"2 it cannot be instituted e,cept when the part" suffering damage has no other legal means to obtain reparation for the same. Art. 1384. )escission shall be onl" to the e,tent necessar" to cover the damages caused. Art. 1385. )escission creates the obligation to return the things which were the object of the contract% together with their fruits% and the price with its interest2 conse-uentl"% it can be carried out onl" when he who demands rescission can return whatever he ma" be obliged to restore. 1either shall rescission take place when the things which are the object of the contract are legall" in the possession of third persons who did not act in bad faith. +n this case% indemnit" for damages ma" be demanded from the person causing the loss. Art. 1386. )escission referred to in 1os. ' and 4 of article '6B' shall not take place with respect to contracts approved b" the courts. Art. 1387. All contracts b" virtue of which the debtor alienates propert" b" gratuitous title are presumed to have been entered into in fraud of creditors% when the donor did not reserve sufficient propert" to pa" all debts contracted before the donation.

Alienations b" onerous title are also presumed fraudulent when made b" persons against whom some judgment has been issued. The decision or attachment need not refer to the propert" alienated% and need not have been obtained b" the part" seeking the rescission. +n addition to these presumptions% the design to defraud creditors ma" be proved in an" other manner recogni$ed b" the law of evidence. Art. 1388. /hoever ac-uires in bad faith the things alienated in fraud of creditors% shall indemnif" the latter for damages suffered b" them on account of the alienation% whenever% due to an" cause% it should be impossible for him to return them. +f there are two or more alienations% the first ac-uirer shall be liable first% and so on successivel". Art. 1389. The action to claim rescission must be commenced within four "ears. ?or persons under guardianship and for absentees% the period of four "ears shall not begin until the termination of the former9s incapacit"% or until the domicile of the latter is known. This is not be to con used with resolution, discussed in #rticle 11A1. This chapter on rescissible contracts is the proper rescissible. #ccording to +caevola, rescission is a process designated to render ine icacious a contract validly entered into and normally binding, by reason o e$ternal conditions, causing an economic pre&udice to a party or to his creditors. # rescissible contract is a contract which is valid because it contains all the essential re*uisites prescribed by law, but which is de ective because o rd in&ury or damage to either o the contracting parties or to 3 persons, as a conse*uence o which it may be rescinded by means o a proper action or rescission. )escission is a remedy granted by law to the contracting parties, and even rd to 3 persons, to secure the reparation o damages caused to them by a contract, even i the same should be valid, by means o the restoration o things to their condition prior to the celebration o the contract. )e*uisites o )escission a. The contact must be a rescissible contract under #rticle 13@1 or #rticle 13@2 The ollowing contracts are rescissible i. Those entered into by guardians whenever the whom they represent su er lesion by more than V o the value o things which are the ob&ect thereo 7#rticle 13@1 7188 )escission shall not ta(e place with respect to contracts approved by the court 7#rticle 13@18. #s a rule, when a guardian enters into a contract involving the disposition o# the wards property, the guardian must secure the approval o the guardianship court. # guardian is only authori3ed to manage the estate o the ward. #

guardian has no power to dispose o any portion o the estate without approval o the court. 4 more than acts o mere administration are involved, &udicial approval is necessary. 4n case o sale, mortgage, or other encumbrance o any portion o the estate which does not have &udicial approval is an unen orceable contract 7#rticle 1;.3 7188. There ore, #rticle 13@1 718 is limited to contracts which constitute mere acts o administration 7i.e. the purchase o e*uipment or the cultivation o lands, purchase o materials or repair o buildings, etc.8. 5esion is very di icult to apply in practice. For e$ample, # is the agent o 9. 9 owns land worth =1. >. # sells the land or =? >. From the acts, the lesion su ered by 9 is 3.J. 4n practice, are you sure that =1. > is the air mar(et value o the land. What i the situation is urgent and that property must be disposed o right away% #nother e$ample, # is the agent o 9. 9 owns land worth =1. >. C wants to buy the land. C is willing to pay = ? > lump sum payment. ' is willing to pay = 1. > but on installments.

ii. Those agreed upon in representation o absentees, i the absentee su ers lesion by more than V o the value o things which are the ob&ect thereo 7#rticle 13@1 7288 )escission shall not ta(e place with respect to contracts approved by the court 7#rticle 13@18. #s a rule, when the legal representative o an absentee enters into a contract involving the disposition o the absentees property, he must secure the approval o the court. # legal representative is only authori3ed to manage the estate o the absentee. Fe has no power to dispose o any portion o the estate without approval o the court. 4 more than acts o mere administration are involved, &udicial approval is necessary. 4n case o sale, mortgage, or other encumbrance o any portion o the estate which does not have &udicial approval is an unen orceable contract 7#rticle 1;.3 7188. There ore, #rticle 13@1 728 is limited to contracts which constitute mere acts o administration 7i.e. the purchase o e*uipment or the cultivation o lands, purchase o materials or repair o buildings, etc.8. 5esion is very di icult to apply in practice. For e$ample, # is the agent o 9. 9 owns land worth =1. >. # sells the land or =? >. From the acts, the lesion su ered by 9 is 3.J. 4n practice, are you sure that =1. > is the air mar(et value o the land. What i the situation is urgent and that property must be disposed o right away%

#nother e$ample, # is the agent o 9. 9 owns land worth =1. >. C wants to buy the land. C is willing to pay = ? > lump sum payment. ' is willing to pay = 1. > but on installments.

iii. Those underta(en in raud o creditors when the creditors cannot in any other manner collect the claims due them 7#rticle 13@1 7388 This is an e$ception to the principle o relativity o contracts. Creditors, a ter having pursued the property in possession o the debtor to satis y their claims may e$ercise all the rights and bring all the actions o the latter or the same purpose, save those which are inherent in his person" they may also impugn the acts which the debtor may have done to de raud them 7#rticle 11??8. Creditors are protected in cases o de raud them 7#rticle 13138. contracts intended to

4n determining whether or not a certain conveyance is raudulent, the *uestion in every case is whether the conveyance was a 5ona "ide transaction or tric( and contrivance to de eat creditors, or whether it conserves to the debtor a special right. #ll contracts by virtue o which the debtor alienates property by gratuitous tile are presumed to have been entered into in order to de raud creditors, when the donor did not reserve su icient property to pay all debts contracted be ore the st donation 7#rticle 13@?, 1 :8. #lienations by onerous title are also presumed raudulent when made by persons against whom some &udgment has been rendered in any instance or some writ o attachment has been issued. The decision or attachment need not re er to the property alienated, and need not have been obtained nd by the party see(ing the rescission 7#rticle 13@?, 2 :8. 9adges o Fraud 1. The act that the consideration o inade*uate the conveyance is

2. # trans er made by a debtor a ter suit has begun and while it is pending against him 3. # sale upon credit by an insolvent debtor ;. ,vidence o large indebtedness or complete insolvency 0. The trans er o all or nearly all o his property by a debtor, especially when he is insolvent or greatly embarrassed inancially 1. The act that the trans er is made between ather and son when there are present any o the above circumstances

?. The ailure o the vendee to ta(e e$clusive possession o all the property iv. Those which re er to things under litigation i they have been entered into by the de endant without the (nowledge and approval o the litigants or o competent &udicial authority 7#rticle 13@1 7;88 #rticle 13@1 7;8 re ers to a contract e$ecuted by the de endant in a suit involving the ownership or possession o a thing, when such contract is made without the (nowledge and approval o the plainti or court. #s in the case o a contract in raud o creditors, the remedy rd o rescission in this case is given to a 3 person who is not a party to the contract. The purpose is to protect the plainti .

v. #ll other contracts specially declared by law to be the sub&ect o rescission 7#rticle 13@1 7088 The ollowing provision in sales are e$amples o rescissible contracts declared by law #rts 1021, 103;, 103@, 103A, 10;., 1001, 101., 101?, 110A. =ayments made in a state o insolvency or obligations to whose ul illment the debtor could not be compelled at the time they were e ected 7#rticle 13@28

b. The person as(ing or rescission must have no other legal means to obtain reparation or the damages su ered by him 7#rticle 13@38 c. The person demanding rescission must be able to return whatever he st may be obliged to restore i rescission is granted 7#rticle 13@0, 1 par8 This re*uisite is only applicable i the one who su ers the lesion is a party to the contract. This re*uisite does not apply when a de rauded creditor resorts to accion pauliana.

d. The things which are the ob&ect o the contract must not have passed rd legally to the possession o a 3 person acting in good aith 7#rticle nd 13@0, 2 :8 Whoever ac*uires in bad aith the things alienated in raud o creditors, shall indemni y the latter or damages su ered by them on account o the alienation, whenever, due to any cause, it should st be impossible or him to return them 7#rticle 13@@,1 :8. 4 there are 2 or more alienations, the 1 ac*uirer shall be liable 1 , nd and so on successively 7#rticle 13@@, 2 :8.
st st

e. The action or rescission must be brought within the prescriptive period o ; years 7#rticle 13@A8 2. <oidable Contracts Art. 1390. The following contracts are voidable or annullable% even though there ma" have been no damage to the contracting parties*

3'5 Those where one of the parties is incapable of giving consent to a contract2 345 Those where the consent is vitiated b" mistake% violence% intimidation% undue influence or fraud. These contracts are binding% unless the" are annulled b" a proper action in court. The" are susceptible of ratification. Art. 1391. four "ears. The action for annulment shall be brought within

This period shall begin* +n cases of intimidation% violence or undue influence% from the time the defect of the consent ceases. +n case of mistake or fraud% from the time of the discover" of the same. And when the action refers to contracts entered into b" minors or other incapacitated persons% from the time the guardianship ceases. Art. 1392. voidable contract. )atification e,tinguishes the action to annul a

Art. 1393. )atification ma" be effected e,pressl" or tacitl". +t is understood that there is a tacit ratification if% with knowledge of the reason which renders the contract voidable and such reason having ceased% the person who has a right to invoke it should e,ecute an act which necessaril" implies an intention to waive his right. Art. 1394. )atification ma" be effected b" the guardian of the incapacitated person. Art. 1395. )atification does not re-uire the conformit" of the contracting part" who has no right to bring the action for annulment. Art. 1396. )atification cleanses the contract from all its defects from the moment it was constituted. Art. 1397. The action for the annulment of contracts ma" be instituted b" all who are thereb" obliged principall" or subsidiaril". 7owever% persons who are capable cannot allege the incapacit" of those with whom the" contracted2 nor can those who e,erted intimidation% violence% or undue influence% or emplo"ed fraud% or caused mistake base their action upon these flaws of the contract. Art. 1398. An obligation having been annulled% the contracting parties shall restore to each other the things which have been the subject matter of the contract% with their fruits% and the price with its interest% e,cept in cases provided b" law. +n obligations to render service% the value thereof shall be the basis for damages.

Art. 1399. /hen the defect of the contract consists in the incapacit" of one of the parties% the incapacitated person is not obliged to make an" restitution e,cept insofar as he has been benefited b" the thing or price received b" h