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ANSWERS TO BAR EXAMINATION QUESTIONS IN CIVIL LAW ARRANGED BY TOPIC

(1975 – 2004)

Edited and Arranged by:

Janette Laggui-Icao and Alex Andrew P. Icao

(Silliman University College of Law)

From the ANSWERS TO BAR EXAMINATION QUESTIONS by the UP LAW COMPLEX

July 26, 2005

This work is not intended for sale or commerce. This work is

freeware. It may be freely copied and distributed. It is primarily intended

for all those who desire to have a deeper understanding of the issues

touched by the Philippine Bar Examinations and its trend. It is

specially

intended for law students from the provinces who, very often, are

recipients of deliberately distorted notes from other unscrupulous law

schools and students. Share to others this work and you will be richly

rewarded by God in heaven. It is also very good karma.

We would like to seek the indulgence of the reader for some Bar

Questions which are improperly classified under a topic and for some

topics which are improperly or ignorantly phrased, for the authors are just

Bar Reviewees who have prepared this work while reviewing for the Bar

Exams under time constraints and within their limited knowledge of the

law.

We

would

like

to

seek

the

typographical errors in this work.

reader’s

indulgence

for

a

lot

of

The Authors

July 26, 2005

Table of Contents

Persons

11

Conflict of laws

25

Adoption

52

Family Code

58

Succession

112

Donations

157

Modes of Acquiring Ownership

167

Property

169

LTD

211

Prescription

245

Contracts

250

Estoppel

263

Natural obligations

265

Obligations

265

Trusts

297

Sales

301

Lease

324

Common carriers

335

Agency

339

Partnership

346

Commodatum & Mutuum

352

Deposit

356

Surety

358

Antichresis Mortgage Pledge

363

Quasi-contracts

367

Torts and damages

372

Aleatory contracts; gambling

390

Compromises and arbitration

390

Detailed Table of Contents

Persons

11

civil register

12

conclusive presumption of knowledge of the law

13

decisions of inferior courts

14

duty of judges to render judgment

14

effect of obiter and dissenting opinion; decisions of the SC

14

effectivity of laws

14

emancipation

15

equity

16

human relations

16

ignorance of the law vs mistake of fact

17

independent

civil action

17

juridical capacity vs capacity to act

18

natural persons

19

prejudicial question

19

presumption of simultaneous death

20

prospectivity of laws; exceptions

22

restrictions on capacity to act

22

use of surnames

23

waiver

23

Conflict of laws

25

Art. 15, 16 & 17

25

cognovit; borrowing statute; characterization

32

effect of divorce granted to former Filipinos

32

effect of divorce secured abroad

33

forum non conveniens & lex loci contractus & long arm statute

34

laws governing contracts

36

laws governing contracts of carriage

36

laws governing divorce

37

laws

governing

marriages

38

laws governing real and personal property

40

laws governing succession

40

laws governing wills

43

nationality theory

44

naturalization

45

operation of foreign laws upon resident

46

processual presumption

47

renvoi doctrine

47

significant relationships theory

49

theory of effective nationality

49

torts; prescriptive period

49

Adoption

52

qualifications of adopter

52

successional rights of adopted child

55

who are considered as natural parents

56

Family Code

58

Annulment effects; requisites before remarriage

59

fraud

60

grounds

62

judicial declaration

62

Legal Separation; prescription of actions 63

proper party

63

psychological incapacity

64

art. 26

64

declaration of nullity: annulment: legal separation: separation of property – grounds 66 divorce; void marriages 67

donations by reason of marriage; effect of declaration of nullity

67

effect of divorce; void marriages

68

emancipation

69

family

69

family

home

70

legal separation

71

grounds

71

proper party

72

nullity; annulment; legal separation; grounds

72

parental authority 73 paternity and filiation 75 presumptive legitime 80 property regime of unions without marriage 81 property relations 83 charges 91

conjugal partnership pf gains 92 dissolution of partnership; custody of children 93

donations between spouses

94

marriage settlements

94

separation of property 96

requisites of marriage

retroactive application; vested rights 103 rights and obligations of husband and wife 103

special parental authority; liability of teachers 105 support 105

106

void marriages

legal personality to seek declaration of nullity 109

97

property regime

110

psychological incpacity

110

Succession

acceptance, repudiation, collation 112 amount of successional rights 112

barrier between illegitimate and legitimate relatives

112

capacity to inherit; conditional devise

113

collation

114

disinheritance 115 donation of a spouse’s share 120 incapacity 121

intestate heirs

intestate proceedings; jurisdiction 123

121

intestate

succession

123

joint wills

136

legal separation; effect 136

136

legitime

order of succession and sharing; right of representation, institution, accretion

 

138

partition

139

preterition 139

probate

renunciation; compromise 144

141

representation 144 reserva troncal 145 right of representation 148

testate succession

148

transmission of rights to succession

149

when death takes place; pesumptive legitime 150

wills

151

codicil 151

formalities

revocation 154

151

testamentary intent

155

witnesses to holographic wills

156

Donations

Donation & Sales ownership of the thing donated

157

Annulment 157 donations mortis causa 160

donee’s civil personality 161

effect of illegal and immoral conditions

161

kinds

162

mortis causa; formalities

163

requisited for perfection

163

revocation

164

valid acceptance 165

167

Modes of Acquiring Ownership Property

accession 169 chattel mortgage over immovables 173

co-ownership

173

easements

180

good faith/ bad faith

189

hidden treasure 196 immovable properties; chattel mortgage over immovables 198

nuisance

199

possession vs occupation

201

possession; 559 201

possession; squatting

204

real vs personal property

205

rights of a property owner; limitations

207

usufruct

207

LTD

211

acquisition of lands; citizenship requirement

211

Act 3344

212

amendment of entries in a certificate of title

212

annotation of lis pendens

213

annotations; classification

213

foreshore lands

214

homestead

214

increase of area by accession

217

indefeasibility of title IPV

217

 

adverse

claims

217

buyer in good faith; laches

218

collateral attack

218

constructive trust

219

effect of entry in day book; acquisitive prescription; laches

219

effect

of

laches

220

foreclosure of registered lands; prescription 220 forged deed as a root or title 221

forgery; innocent purchaser for value

223

fraud in the procurement of patent

224

free patents; jurisdiction of Director of Lands

225

government lands

225

innocent purchaser for value

226

lis pendens

227

mirror principle 227

228

reconveyance 229

registration as the operative act of conveying the land 230

notice of lis pendens; transferee pendente lite

remedies; prescriptive period

230

remedies;

reconveyance

231

reopening of a decree of registration

232

sale of unregistered lands

236

unregistered land

236

use of fraud in aplication of title; prescriptive period for reconveyance .237

238

judicial reconstitution of title 239

judicial confirmation of imperfect title

ministerial duty of the Register of deeds to register

240

procedure; consulta

241

reclamation of foreshore lands

241

redemption 242

scope of registration

242

torrens vs recording

243

writ of possession

243

Prescription

245

acquisitive; movable

246

just title

246

laches

247

real rights

248

Contracts

annulment of contracts; capacity to sue

250

annulment of contracts; prescriptive period

250

consensual vs real contracts

251

consent; invitation to bid

251

consideration; validity

252

form of contracts

252

inducing another to violate a contract

253

innominate contracts

253

obligatory nature of contracts

254

perfection of contracts; obligations with a period

255

privity of contract

255

reformation of instruments

256

rescission of contracts; capacity to sue

256

Statute of Frauds

257

stipulation pour atrui

259

void contracts; in pari delicto principle

260

void contracts; usurious interests

260

void vs voidable contracts

261

void/unenforceable contracts

261

voidable contracts

261

Estoppel

263

Natural obligations Obligations

265

alternative/ facultative obligations

265

alternative/facultative obligations

265

civil vs natural oblig 266

conditional obligations

267

exemption from liability due to fortuitous events; exceptions

270

extinguishment of a cause of action

270

extinguishment assignment of rights

270

compensation

271

compensation vs payment 272

compensation: payment: confusion: set-off

273

condonation

273

dation 274

dation in payment vs assignment

275

extraordinary inflation or deflation

275

loss

276

loss; impossible service 277

277

novation

payment 281

consignation, set-off

283

application

284

consignation, when applicable

284

fortuitous events

285

joint/ solidary liability

286

loss of the thing due 290

loss of the thing due; force majeure 290

nature and effect of obligations

291

obligation to deliver a determinate thing; effect of loss

291

obligation to deliver a generic thing

292

obligation to give; obligation to do 293

obligations with a penal clause

294

obligations

with

a

period

295

suspensive period dependent upon will of debtor

297

Trusts

297

Sales

Sales & Donation; ownership of the thing sold

301

Art. 1592

301

assignment of credit

302

conditional sale vs absolute sale

302

contract of sale vs agency to sell

303

contract of sale vs contract to sell

303

contract to sell

303

contract to sell vs contract of sale

304

double sales

304

effect of oral sale

306

equitable mortgage

307

Maceda law

310

option contract

312

option; earnest money; Art. 1592

312

pacto de retro; when not

313

perfected sale

314

Recto law

315

redemption (conventional and legal)

317

redemption; legal; by co-owners

318

right of first refusal

319

right of repurchase

320

tradition

320

transfer of ownership

321

vendor’s lien

322

who bears risk of loss

322

Lease

324

Lease of urban lands

325

contract for a piece of work 326

contract for a piece of work; liability of architects/contractors 326

contract

of labor

327

effect of death of lesee

327

ejectment

327

extinguishment 328

implied new lease

328

lease of rural lands

329

lease with a term 329

liability for hidden defects

330

option to buy

331

reduction of rent 331

rights and obligations of leasee and lessor 332

sublease

332

sublease; delay in payment of rentals

333

Common carriers

335

Agency

339

agency vs sale 339

appointment of sub-agent

authority to sell does not include authority to collect 340 commission 340

339

coupled with an interest

340

general vs special agency

342

liability of an agent

342

to render an account

343

powers of the agent

343

termination; death or principal: double sales

344

termination; effect of death of agent

344

Partnership

346

conveyance of a partner’s share dissolution

346

dissolution 346

effect of death of partner 347

obligations of a partner

347

partner

by

estoppel

348

partner vs lender (debtor)

348

revocation of manager’s power; liability of an industrial partner 349

who can form partnerships; spouses; corporations 350

Commodatum & Mutuum

352

Commodatum

352

Commodatum vs usufruct 352

Commodatum; liabilties of a bailee 353 Mutuum

353

interests 353

vs commodatum

Deposit

356

Surety

358

recovery of deficiency

358

Antichresis

vs pledge and mortgage

359

Mortgage

Chattel mortgage

360

chattel mortgage vs pledge

360

effect of loss of thing mortgaged upon principal oblig

361

pactum commissorium

361

real & chattel; future loans

362

real estate mortgage vs sale with repurchase

362

right of redemption vs equity of redemption

363

Pledge

363

effect of loss of thing pledged upon principal obligation: immediate demandability of principal oblig

364

vs mortgage; antichresis

365

use of the thing pledged

365

Quasi-contracts

367

Negotiorium gestio

367

1474; reasonable value

370

solutio indebiti

370

Torts and damages

372

abuse of right

373

acts contrary to morals

374

actual and moral damages

374

breach of contract

375

collapse of structures

375

common carriers

376

damages

376

damages arising from death of unborn child

377

damages; moral damages & atty fees

378

death indemnity

378

defense; due diligence in selection

379

filing of separate civil action; need for reservation

379

human relations

380

insurance; subrogation

382

loss of an unborn child

382

product liability

383

quasi- delict

383

vicarious liability

384

defenses; fortuitous event

385

liability of employer for damage caused by employees; defense of due diligence

 

385

motor vehicle mishaps; solidary liability of owner who was in the vehicle

386

primary liability vs subsidiary liability of employers

387

vicarious liability

388

Aleatory contracts; gambling

390

Compromises and arbitration

390

00; Civil law vs common law; trend and governance

1997 No. 1:

How would you compare the Civil Law system in its governance and trend with that of the Common Law system?

Answer:

As regards "governance":

Governance in Civil Law is codal, statutory and written law. It is additionally derived from case law. Common law is basically derived from case law.

As regards "trend":

Civil law is now tending to rely more and more on decisions of the courts explaining the laws. Common law is now codifying laws more and more. So they are now merging towards similar systems.

Additional Answers:

1. Common law refers to the traditional part of the law as distinct from legislation; it refers

to the universal part of law as distinct from particular local customs (Encyclopedia Americana, Vol.

7).

On the other hand, civil law is understood lo be that branch of law governing the relationship of persons in respect of their personal and private interests as distinguished from both public and international laws.

In common law countries, the traditional responsibility has for the most part been with the judges; in civil law countries, the task is primarily reposed on the lawmakers. Contemporary practices, however, so indicate a trend towards centralizing that function to professional groups that may indeed, see the gradual assimilation in time of both systems. [Vitug, Civil. Law and Jurisprudence, p. XX)

2. In Civil Law. the statutes theoretically take precedence over court decisions interpreting

them; while in Common Law, the court decisions resolving specific cases are regarded as law rather than the statutes themselves which are, at the start, merely embodiments of case law. Civil Law is code law or written law, while Common Law is case law. Civil Law adopts the deductive method - from the general to the particular, while the Common Law uses the inductive approach - from the particular to the general. Common Law relies on equity. Civil Law anchors itself on the letter of the law. The civilists are for the judge-proof law even as the Common Law Is judge-made law. Civil Law judges are merely supposed to apply laws and not interpret them.

00; Civil law; definition; sources

1977 No. I-a

What is civil law? What are the sources of the New Civil Code of the Philippines?

Answer

Civil Law is defined as the mass of precepts which determines and regulates those relations of assistance, authority and obedience existing among members of a family as well as among members of a society for the protection of private interests.

The sources of the Civil Code of the Philippines are:

(1)

Civil Code of Spain of 1889;

(2) Codes and laws of other countries, such as Spain, the various states of the United States, especially California and Louisiana, France, Argentina, Germany, Mexico, Switzerland, England and Italy;

Judicial decisions of the Supreme Courts of the Philippines, of various states of the

United States, of Spain, and of other countries;

Philippine laws or statutes, such as the Code of Civil Procedure (Act No. 190), the

Rules of Court, the Marriage Law (Act No. 3613), and the Divorce Law (Act No. 2710);

(3)

(4)

(5)

Works of jurists of various nations;

(6)

Filipino customs and traditions; and

(7)

The Code Commission itself.

00; Persons

1988

No 1;

(c) As a rule, once the criminal action has been commenced, the civil action

for damages arising from the offense charged shall be suspended until the final termination of the criminal action. What are the exceptions to said rule as provided by the Civil Code?

Answer:

(c)

The exceptions are as follows:

(1)

Where the civil action is based on an obligation not arising from the act

or omission complained of as a felony, such as when the basis of the civil action is culpa contractual, culpa aquiliana, etc. (Arts. 31, 2177, CC).

(2) Where the law grants to the injured party the right to institute a civil action

which is entirely separate and independent from the criminal action, such as when the action is based on (a) interferences by public officers or employees or by private individuals with civil rights and liberties; (b) defamation; (c) fraud; (d) physical injuries; or (e) refusal or neglect of a city or municipal police officer to "render aid or protection in case of danger to life or property (Arts. 32,33, 34, CC).

(3) Where the question to be resolved in the civil action is prejudicial to the

criminal action (Art. 36, CC).

Alternative Answers to: No. 1 (a) and (b)

(a) A prejudicial question is a question

civil suit, the

resolution of which is determinative of the guilt or innocence of the accused.

Its essential elements, as prescribed by Section 5 of Rule 111 are: (a) the civil action involves an issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

Its effect upon a criminal case is to suspend the criminal case if one has already been commenced.

which

arises

in

a

(b) Considering that the acquittal is not based on reasonable doubt but on a

positive finding of innocence (he was not negligent) the civil action can no longer

prosper.

The civil liability arising from the act complained of as a felony is barred by the finding of innocence. However, the civil action for damages based on an obligation ex-contractu is not deemed barred because of article 31 of the Civil Code.

00; Persons; civil register

1975 No. VIII

An illegitimate child of a Chinese father and a Filipino mother was registered in the Civil Registry as a Chinese. She filed a petition for the correction of the entry to make her citizenship read 'Filipino" in view of the absence of marriage between her parents. Will the petition prosper? Why?

Answer

Not the petition will not prosper. While ostensibly, the action seeks a mere correction of an entry in the Civil Registry, it in effect requests the judicial declaration of Philippine citizenship. The correction is not merely of a clerical error and therefore cannot be made through a petition for the correction of an entry in the civil register.

In a line of decisions the Supreme Court has consistently refused to entertain petitions of this nature. (China v. Republic, 27 SCRA 447)

00; Persons; civil register; correction of entries

1987

No. 3:

Celso Lim would like to correct an allegedly wrong entry in the birth certificate of one of his sons, Celso Jr., describing the latter as a Chinese national and not as a Filipino. Among the evidence Celso Lim had are his own birth certificate describing him as a Filipino, the birth certificate of his other children, all describing them as Filipinos and a court decision describing his father (Celso, Jr.'s grandfather) as a Filipino.

(a) What action must Celso Lim take to ensure the effective correction of

the allegedly wrong entry in his son's birth certificate?

(b) Who should be made parties to such action or proceeding?

Answer:

a, Celso must file a petition in an adversary proceeding to correct the erroneous entry. In the case of Republic v. Valencia, (L-32181, March 5, 1986), it was ruled that not only clerical errors can be the subject-matter of the petition, but even the controversial entries can be corrected.

b. Under Rule 108 of the Rules of Court, he should notify the Civil Registrar

and all the persons affected or who have an interest in the subject matter of the

petition, including the Solicitor General.

00; Persons; civil registry

1981 No. 18

(c) True or false? -- The records of a person's birth, as kept by the Civil Registrar, is a public record and may be inquired into by a person interested.

Answer

(c) False. According to the Child and Youth Welfare Code, the records of a person's birth shall be kept strictly confidential and no information relating thereto shall be issued except in certain cases enumerated in the law. (See Art. 7).

00; Persons; conclusive presumption of knowledge of the law

1985 No. 1

A) Although far from reality, everyone is conclusively presumed to know the

law pursuant to Article 3 of the New Civil Code which states that "ignorance of the

law excuses no one from compliance therewith."

Discuss the underlying philosophy behind said pro vision.

Answers:

A) 1. The philosophy of the law is founded upon public policy. The rule excludes ignorance as an excuse for not complying with the law. Acts contrary to law should not have the same effects as when done conformably with the law merely because of ignorance,

2. The philosophy of the law is founded upon public policy. The rule excludes

ignorance as an excuse for not complying with the law. Acts contrary to law should not have the same effects as when done conformably with the law merely because of ignorance. It is based on necessity and expediency.

3. Ignorance of the law does not excuse compliance with the law of the land

(Art. 3, Civil Code) whether civil or penal and whether substantive or remedial. This principle is founded not only on expediency and public policy but on necessity;

otherwise, an easy shelter from a disregard of the law may easily and conveniently be available.

4. Ignorance of the law does not excuse compliance with the law of the land (Art. 8, Civil Code) whether civil or penal and whether substantial or remedial (People vs. Malvar, 21 SCRA 1119). This principle is founded not only on expediency and public policy but on necessity (see Zulueta vs. Zulueta, 1 Phil 256); otherwise an easy shelter from a disregard of the law may easily and conveniently be available.

00; Persons; decisions of inferior courts

1994 No. 4:

1)

Alternative Answers:

Are decisions of the Court of Appeals considered laws?

a) No, but decisions of the Court of Appeals may serve as precedents

for inferior courts on points of law not covered by any Supreme Court decision, and

a ruling of the Court of Appeals may become a doctrine. Phil. 1066).

b) No. Decisions of the Court of Appeals merely have persuasive, and therefore no mandatory effect. However, a conclusion or pronouncement which covers a point of law still undecided may still serve as judicial guide and it is possible that the same maybe raised to the status of doctrine. If after it has been subjected to test in the crucible of analysis, the Supreme Court should find that it has merits and qualities sufficient for its consideration as a rule of jurisprudence (Civil Code, Paras).

00; Persons; duty of judges to render judgment

(Miranda u. Imperial 77

1)

1977 No. XX-b

According to the Civil Code, no judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. How should the judge or court then decide the controversy before him?

Answer

The judge shall apply the custom of the place. This can easily be inferred from the Civil Code (Arts. 9, et seq., Civil Code). In default thereof, he shall apply the general principles of law and justice.

00; Persons; effect of obiter and dissenting opinion; decisions of the SC

1994 No. 4:

2)

What are the binding effects of an obiter dictum and a dissenting opinion?

3)

How can a decision of the Supreme Court be set aside?

Alternative Answers:

2) None. Obiter dictum and opinions are not necessary to the determination of a case. They are not binding and cannot have the force of official precedents. It is as if the Court were turning aside from the main topic of the case to collateral subjects: a dissenting opinion affirms or overrules a claim, right or obligation. It neither disposes nor awards anything it merely expresses the view of the dissenter. (Civil Code, Paras]

3) A decision of a division of the Supreme Court maybe set aside by the Supreme Court sitting en banc, a Supreme Court decision may be set aside by a contrary ruling of the Supreme Court itself or by a corrective legislative act of Congress, although said laws cannot adversely affect those favored prior to the Supreme Court decision. [Civil Code, Paras).

00; Persons; effectivity of laws

1990

No 14:

After a devastating storm causing widespread destruction in four Central Luzon provinces, the executive and legislative branches of the government agreed to enact a special law appropriating P1 billion for purposes of relief and rehabilitation for the provinces. In view of the urgent nature of the legislative enactment, ft is provided in its effectivity clause that it shall take effect upon approval and after completion of publication in the Official Gazette and a newspaper of general circulation in the Philippines. The law was passed by the Congress on July 1, 1990. signed into law by the President on July 3, 1990, and published in such newspaper of general circulation on July 7, 1990 and in the Official Gazette on July 10, 1990.

(a) As to the publication of said legislative enactment, is there sufficient

observance or compliance with the requirements for a valid publication? Explain

your answer.

(b)

When did the law take effect? Explain your answer.

 

(c)

Can

the

executive

branch

start

releasing

and

disbursing

funds

appropriated by the said law the day following its approval? Explain your answer.

Answer:

(a) Yes, there is sufficient compliance. The law itself prescribes the

requisites of publication for its effectivity, and all requisites have been complied with.

(Article 2, Civil Code)

(b) The law takes effect upon compliance with all the conditions for effectivity, and the last condition was complied with on July 10, 1990. Hence, the" law became effective on that date.

(c) No. It was not yet effective when it was approved by Congress on July 1,

1990 and approved by the President on July 3, 1990. The other requisites for its effectivity were not yet complete at the time.

00; Persons; emancipation

1986 No. 2:

Mr, Mamirapal, 19 years old and married, seeks to do the following:

1. Lend his money at interest

2. Donate a piece of his land to his infant son.

3. Sell his car.

4. Sue his neighbor for damages.

The land, money, and car are Mamirapal's separate property derived from his own income. He is not sure whether he can legally do all these things without his father's consent and assistance. He comes to you for advice. What advice will you give him?

Answer:

I will advice Mamirapal: (1) to lend his money at interest without securing his father's consent or assistance; (2) to donate a piece of his land to his infant son. but with father's consent; (3) to sell his car without father's consent or assistance; and (4) to sue his neighbor for damages, but with his father's assistance. Although Mamirapal is already emancipated, his emancipation is not perfect or plenary in character. Under the law, he cannot borrow money or alienate or encumber real property without the consent of his father. Neither can he sue or be sued without the assistance of his father. It is obvious that only Nos. (2) and (4) fall within the purview of these exceptions.

(Note - The above answer is based upon Art. 399 of the Civil Code).

Answer The C.C. provides that an emancipated minor cannot borrow money, alienate or encumber real property without the consent of his parent or guardian. Neither can he sue or be sued without the assistance of his parent or guardian. Therefore, the answer to questions:

1)

Yes, he can legally do it alone;

2)

No, because donation is a form of alienation;

3)

Yes, as property is movable;

4)

He needs the assistance of his father.

00; Persons; equity

2003 No I

It is said that “equity follows the law” What do you understand by this phrase, and what are its basic implications?

Suggested Answer:

“Equity Follows the law” means that courts exercising equity jurisdiction are bound by rules of law and have no arbitrary discretion to disregard them. (Arsenal v IAC, 143 SCRA 40 [1986]). Equity is applied only in the absence of but never against statutory law. (Toyota Motor Phil. V CA 216 SCRA 236 [1992]). 5%

00; Persons; human relations

1978 No. I-a

B, a married man, by force and intimidation, succeeded in having sexual intercourse with A, single, without her consent. As a result, A became pregnant. A sued B for damages, Is B liable for damages? Why?

Answer

B is liable for damages. From the factual setting stated in the problem, it is

clear that B's act is contrary to law and that he has willfully caused damage to A. As

a matter of fact, he has committed the crime of rape. According to the Civil Code,

every person who, contrary to law, willfully or negligently causes damage to another,

shall indemnify the latter for the same. Consequently, B is liable for compensatory damages, moral damages, exemplary damages and attorney's fees.

(NOTE: The above answer is based on Art. 20 of the Civil Code and on the corresponding provisions of the Code on damages, such as Arts. 2202 and 2204 with respect to compensatory damages, Arts. 2219 with respect to moral damages,

Arts. 2230 and 2234 with respect to exemplary damages, and Art. 2208 with respect

to attorney's fees.)

Alternative Answer

B is liable for damages. It must be observed that his act which has caused

damage to A may be considered as a crime or as a quasi-delict. It is now well- settled doctrine in this jurisdiction that his act gives rise to two separate and independent liabilities—first, the civil liability arising from crime (culpa criminal) and second, the civil liability arising from quasi-delict (culpa aquilana). These two liabilities may be enforced by A against B simultaneously or successively. What is barred by the law is double recovery. Whether based on the crime or on the quasi- delict, B is liable for compensatory damages, moral damages, exemplary damages and attorney's fees.

(NOTE: The above answer is based on Elcano v. Hill, 77 SCRA 98. It has also been suggested that an answer based on Article 21 of the Civil Code should also be accepted as a correct answer.)

00; Persons; ignorance of the law vs mistake of fact

1996 No. 1:

1)

Is there any difference in their legal effect between ignorance of the law

and ignorance or mistake of fact?

Answer;

Yes, there is a difference. While ignorance of the law is not an excuse for not complying with it, ignorance of fact eliminates criminal intent as long as there is no negligence (Art, NCC). In addition, mistake on a doubtful or difficult question of law may be the basis of good faith (Art. 526. NCC). Mistake of fact may, furthermore, vitiate consent in a contract and make it voidable (Art. 1390. NCC).

Alternative Answer:

Yes. ignorance of the law differs in legal effect from Ignorance or mistake of fact. The former does not excuse a party from the legal consequences of his conduct while the latter does constitute an excuse and is a legal defense.

00; Persons; independent civil action

1983 No.

1

After an altercation with B, A hit B's car with a piece of wood, breaking the windshield. When C came along and tried to pacify A, the latter stabbed the former, causing injuries which would have been fatal were it not for timely medical attention.

A was charged with frustrated homicide and malicious mischief. Two separate civil actions for damages were also filed against him, one by B and the other by C.

A moved for the suspension of the civil actions until after the termination of the criminal cases.

Resolve with reasons.

Answer

It should be denied in so far as the civil action for damages arising from B's injuries is concerned. In cases of physical injuries, which have been held to include homicide, whether consummated or frustrated, a civil action for damages, entirely separate and distinct from the criminal action may be brought by the injured party and shall proceed independently of the criminal proceeding.

It should, however, be sustained as to the civil action to recover indemnity for the damage to the taxi, it not being one of the cases specified in the Code in which an independent civil action may be maintained. For this reason, it must be held in abeyance until the termination of the criminal action.

00; Persons; independent civil actions

1976 No. I-a

During a brawl in a basketball game, A Attacks B with a bottle and causes physical injuries. If B files a civil case against A for damages and during its pendency a criminal case is filed against A, should the civil case be suspended meanwhile? Explain.

(Abellana vs. Marave, 57 SCRA 106)

Answer

No, because the civil action for damages arising from physical injuries is an independent civil action and is entirely separate and distinct from the criminal action. (Article 33)

00; Persons; independent civil actions

1976 No. I-b

If a criminal case is filed first, may the civil case be filed during the pendency of the criminal case or later, even without a reservation? Explain.

Answer

Yes. The civil case may be filed during the pendency of the criminal case even without a reservation, it being an independent, civil action. It is a substantive right and cannot be affected or modified by the Rules of Court. (Abellana v. Marave, 57 SCRA 106)

2. If the criminal case is no longer pending, there are two possibilities. There

is either an acquittal or conviction.

If there is an acquittal based on a positive finding of innocence with a pronouncement that the facts from which the civil case might arise do not exist, then the civil action cannot be filed; but if it is an acquittal based on reasonable doubt, then the civil action may still prosper.

If the criminal cage resulted in conviction, whether damages were awarded or not, the civil case may no longer prosper, if any of the following circumstances took place:

(a) If a private prosecutor appeared in the criminal case, which is an

indication that the civil action was instituted together with the criminal case; or

(b) If the injured

party in the civil case actively participated

and/or

intervened in the criminal case. (Manio vs. Gaddi, 44 SCRA 198 (1972)

00; Persons; independent civil actions

1976 No. I-c

Does Article 33 of the Civil Code on separate civil action for damages arising from injuries require that there be a reservation in the criminal case to file a separate civil action? Explain

Answer

Best Answer:

No, because Article 33 provides that it is separate and distinct from the criminal action and may proceed independently of the criminal action. It is a substantive right and cannot be rendered nugatory by the Rules of Court. The power of the Supreme Court to promulgate rules is limited to pleadings, practice and procedure. (Abellana vs-Marave, supra)

Alternative Answer

1. Yes, because Section 2, Rule 111 in relation to Article 33 requires a

reservation in order to take out the civil case from the jurisdiction of the criminal court. The civil liability resulting from damages and the law accord the injured party an option to reserve or not to reserve. (Padua v. Robles)

2. Yes, because the general rule is that when a criminal action is filed, the

civil action is impliedly instituted in the same criminal case,

00; Persons; juridical capacity vs capacity to act

1996 No. 1:

2) Distinguish juridical capacity from capacity to act, Answer:

Juridical capacity is the fitness to be the subject of legal relations while capacity to act Is the power or to do acts with legal effect. The former is inherent in every natural person and is lost only through death while the latter is merely acquired and may be lost even before death (Art. 37, NCC).

Alternative Answer;

Juridical capacity, as distinguished from capacity to act: (a) the former is passive while the latter is active, (b) the former is inherent in a person while the latter is merely acquired, (c) the former is lost only through death while the latter may be lost through death or restricted by causes other than death, and Id) the former can exist without capacity to act while the latter cannot exist without juridical capacity.

00; Persons; natural persons

1999 No I.

Elated that her sister who had been married for five years was pregnant for the first time, Alma donated P100,000.00 to the unborn child. Unfortunately, the baby died one hour after delivery. May Alma recover the P100.000.00 that she had donated to said baby before it was born considering that the baby died? Stated otherwise, is the donation valid and binding? Explain. (5%)

ANSWER:

The donation is valid and binding, being an act favorable to the unborn child, but only if the baby had an intra-uterine life of not less than seven months and pro- vided there was due acceptance of the donation by the proper person representing said child. If the child had less than seven months of intra-uterine life, it is not deemed born since it died less than 24 hours following its delivery, in which ease the donation never became effective since the donee never became a person, birth being determinative of personality.

ALTERNATIVE ANSWER:

Even if the baby had an intra-uterine life of more than seven months and the donation was properly accepted, it would be void for not having conformed with the proper form. In order to be valid, the donation and acceptance of personal property exceeding five thousand pesos should be in writing. (Article 748, par. 3)

00; Persons; prejudicial question

1988 No 1;

(a) What is' a prejudicial question? What are its elements? What is its effect upon a criminal action?

Answer:

(a) A prejudicial question is a question which arises in a case, the resolution of which is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal (People vs. Aragon 94 Phil. 357; Jimenez vs. Aceria 22 SCRA 1380).

It has two elements. They are: First, that it must be determinative of the guilt or innocence of the accused in the criminal case; and second, jurisdiction to try said question must be lodged in another tribunal (Ibid.)

Its effect upon a criminal case is to suspend it if one has already been commenced (Article 36, CC). This is of course, the reverse of the ordinary rule of procedure. The reason for this is that the resolution of the question is determinative of the guilt or innocence of the accused in the criminal case.

00; Persons; prejudicial questions

1997 No. 3:

In the context that the term is used in Civil Law, state the (a) concept, (b)

requisites and (c) consequences of a prejudicial question,

Answer:

(a) Concept

A prejudicial question is one which must be decided first before a criminal

action may be instituted or may proceed because a decision therein is vital to the judgment in the criminal case. In the case of People vs. Adelo Aragon (L-5930, Feb. 17, 1954), the Supreme Court defined it as one which arises in a case, the resolution of which question is a logical antecedent of the issues involved in said case and the cognizance of which pertains to another tribunal (Paras, Vol. 1, Civil.

Code Annotation, 1989 ed. p, 194).

(b) Requisites

1, The prejudicial question must be determinative of the case before the

court.

2. Jurisdiction to try said question must be lodged in another tribunal.

Additional Answer:

1. The civil action involves an issue similar or intimately related to the issue raised in the criminal action, and

2. the resolution of such issue determines whether or not the criminal action

may proceed.

(c)

Consequences

The criminal case must be suspended. Thus, in a criminal case for damages to one's property, a civil action that involves -the ownership of said property should first be resolved (De Leon vs. Mabanag. 38 Phil. 202)

00; Persons; presumption of simultaneous death

1998 No III.

Jaime, who is 65, and his son, Willy, who is 25, died in a plane crash. There is no proof as to who died first. Jaime's only surviving heir is his wife, Julia, who is also Willy's mother. Willy's surviving heirs are his mother, Julia and his wife, Wilma.

1. In the settlement of Jaime's estate, can Wilma successfully claim that

her late husband, Willy had a hereditary share since he was much younger than his father and, therefore, should be presumed to have survived longer? [3%]

2. Suppose Jaime had a life insurance policy with his wife, Julia, and his

son, Willy, as the beneficiaries. Can Wilma successfully claim that one-half of the proceeds should belong to Willy's estate? |2%J

Answer:

1. No, Wilma cannot successfully claim that Willy had a hereditary share in

his father's estate. Under Art. 43, Civil Code, two persons "who are called to succeed each other" are presumed to have died at the same time, in the absence of proof as to which of them died first. This presumption of simultaneous death applies in cases involving the question of succession as between the two who died, who in this case are mutual heirs, being father and son.

Answer:

2. Yet, Wilma can invoke the presumption of survivorship and claim that one- half of the proceeds should belong to Willy's estate, under Sec. 3 (jj) par. 5 Rule 131, Rules of Court, as the dispute does not involve succession. Under this presumption, the person between the ages of 15 and 60 years is deemed to have survived one whose age was over 60 at the time of their deaths. The estate of Willy endowed with juridical personality stands in place and stead of Willy, as beneficiary.

00; Persons; presumption of simultaneous death

1999 No II.

Mr. and Mrs. Cruz, who are childless, met with a serious motor vehicle accident with Mr. Cruz at the wheel and Mrs. Cruz seated beside him, resulting in the instant death of Mr. Cruz. Mrs. Cruz was still alive when help came but she also died on the way to the hospital. The couple acquired properties worth One Million (PI ,000,000.00) Pesos during their marriage, which are being claimed by the parents of both spouses in equal shares. Is the claim of both sets of parents valid and why?

(3%)

(b) Suppose in the preceding question, both Mr. and Mrs. Cruz were already dead when help came, so that no-body could say who died ahead of the other, would you answer be the same to the question as to who are entitled to the properties of the deceased couple? (2%)

ANSWER:

(a) No, the claim of both parents is not valid. When Mr. Cruz died, he was succeeded by his wife and his parents as his intestate heirs who will share his estate equally. His estate was 0.5 Million pesos which is his half share in the absolute community amounting to 1 Million Pesos. His wife, will, therefore, inherit O.25 Million Pesos and his parents will inherit 0.25 Million Pesos.

When Mrs. Cruz died, she was succeeded by her parents as her intestate heirs. They will inherit all of her estate consisting of her 0.5 Million half share in the ab-solute community and her 0.25 Million inheritance from her husband, or a total of 0.750 Million Pesos.

In sum, the parents of Mr. Cruz will inherit 250,000 Pesos while the parents of Mrs. Cruz will inherit 750,000 Pesos.

(b) This being a case of succession, in the absence of proof as to the time

of death of each of the spouses, it is presumed they died at the same time and no transmission of rights from one to the other is deemed to have taken place. Therefore, each of them is deemed to have an estate valued at P500,000,00, or one-half of their conjugal property of PI million. Their respective parents will thus inherit the entire PI Million in equal shares, OT P5OO,000.00 per set of parents.

00; Persons; presumption of simultaneous death

2000 No III.

b) Cristy and her late husband Luis had two children, Rose and Patrick, One summer, her mother-in-law, aged 70, took the two children, then aged 10 and 12, with her on a boat trip to Cebu. Unfortunately, the vessel sank en route, and the bodies of the three were never found. None of the survivors ever saw them on the water. On the settlement of her mother-in-law's estate, Cristy files a claim for a share of her estate on the ground that the same was inherited by her children from their grandmother in representation of their father, and she Inherited the same from them. Will her action prosper? (2%)

SUGGESTED ANSWER:

No, her action will not prosper. Since there was no proof as to who died first, all the three are deemed to have died at the same time and there was no transmission of rights from one to another, applying Article 43 of the New Civil Code.

ALTERNATIVE ANSWER:

No, her action will not prosper. Under Article 43 of the New Civil Code, inasmuch as there is no proof as to who died first, all the three are presumed to have died at the same time and there could be no transmission of rights among them. Her children not having inherited from their grandmother. Cristy has no right to share in her mother-in-law's estate. She cannot share in her own right as she is not a legal heir of her mother-in-law. The survivorship provision of Rule 131 of the Rules of Court does not apply to the problem. It applies only to those cases where the issue involved is not succession.

00; Persons; prospectivity of laws; exceptions

1977 No, I-b

Give five (5) exceptions to the rule that laws shall have no retroactive effects.

Answer

The following are retroactive effect:

the exceptions to the

rule that laws

shall have no

(1) When the law itself expressly provides for its retroactivity (Art. 4, CC).

(2) When the law is penal insofar as it favors the accused who is not a habitual criminal, even though at the time of the enactment of such law final sentence has already been rendered (Art. 22, Rev. Penal Code).

When the law is procedural so long as it does not affect or change

vested rights (Aguillon vs. Dir. of Lands, 17 Phil. 560).

2263,

CC; Bona vs.

(5) When the law Is curative in character in the sense that the purpose for its enactment is to cure defects or imperfections in judicial or administrative proceedings.

00; Persons; restrictions on capacity to act

(3)

(4)

When

the law

creates

new

substantive

rights (Arts.

2253,

Briones, 38 Phil. 276).

1985

No. 1

B)

Among the restrictions on capacity to act are minority, insanity, deaf-

mutism, prodigality and civil interdiction, all of which do not exempt the incapacitated

person from "certain obligations."

Explain and discuss the said rule and illustrate its application by specific examples.

Answers:

B) 1. Such incapacitated person is not exempt from all obligations except those arising from contracts. In other words, he is liable if the obligation arises from law, from delicts, from quasi-delicts.

2. The general rule may be illustrated as follows: An incapacitated person is not exempt from civil liability except those arising from contracts; so he can be liable for a crime committed by him. He may not be criminally liable but he is a civilly liable. One may be insane but does not exempt him from his legal obligation to support his family,

3.

A minor under 15 may commit a crime. He might have committed it

without discernment and therefore would be free or exempt from the civil liability. With regard to property relations, a 5-year-old child may inherit property and the fact

that the new owner of the property is incapacitated does not exempt the property and himself from the burden of easement.

4. The rule is based upon lack of voluntariness of the act due to physical or

mental defects, and upon the necessity of protection by the State because of disabilities. Despite incapacity, a minor may be liable for crime. An insane person must recognize legal easements on his property. A person civilly interdicted may be liable for quasi-delict.

5. Minority, Insanity, deaf-mutism, prodigality and civil interdiction are

mere restrictions on capacity to act and do not necessarily exempt the incapacitated person from certain obligations. Among such obligations are those arising from his acts or from property relations. Accordingly, a minor may be estopped by his misrepresentations; and an infant may be held civilly liable for his tortious conduct, a rule that is more preferable than to let the guiltless victim suffer the loss.

6. Minority, insanity, deaf-mutism, prodigality and civil interdictions are mere

restrictions on capacity to act and do not necessarily exempt the incapacitated person from certain obligations. Among such obligations an those arising from his acts or from property relations (Arts. 38-39, Civil Code). Accordingly, a minor may be

estopped by his misrepresentation (Mercado vs. Espiritu, 37 Phil. 215); and an infant may be held liable for his tortious conduct, a rule that is preferable than to let the guiltless victim suffer the lost (See Magtibay vs. Tiangco, 74 Phil. 676),

00; Persons; use of surnames

1975 No. VII

A mother who had a natural child subsequently married a man other than the

child's father. The child filed a petition to change his surname from the father's name to that of the step-father who has no objection thereto. May the petition be granted? Why?

Answer

Yes, the petition may be granted. While it is true that a natural child shall employ the surname of the recognizing parent or that of the father if acknowledged by both parents, this does not mean that such child is prohibited by law from taking another surname for justifiable reasons. The purpose of the law in allowing a change of name is to give a person an opportunity to improve his personality and promote his best interests. To allow the child here to change his name would eliminate the stigma of illegitimacy which he would continue to bear if his surname were to be that of his illegitimate father. Furthermore, the stepfather is agreeable to the child's using his surname.

The court, therefore, in the sound exercise of its discretion may grant the petition. (Calderon v. Republic, 19 SCRA 721)

00; Persons; waiver

1978 No. V-b

A was a consistent scholar and honor student for three (3) years in Manuel L.

Quezon (MLQ) University and he enjoyed free tuition privileges. In his fourth year, he decided to study in a University in Davao as his father died and he had to stay with his mother. He needed the transcripts of his records in MLQ University, but MLQ refused to issue them until he had refunded the whole amount of tuition fees given to him for three (3) years of his stay, alleging that he had signed an agreement

beforehand and waiving his right to transfer to another university without having refunded the cash equivalent of his scholarship. A was forced to refund the amount as he did not want to be late for his enrollment in the Davao University. Later, he sued for its return. Can A recover the amount he refunded to MLQ University? Reasons for your answer.

Answer

Yes, A can recover the amount he refunded to MLQ University. The waiver signed by A is contrary to public policy, and therefore, null and void. Scholarship grants are awarded in recognition of merit and not to attract and keep brilliant students in school for their propaganda value. To look at such grants as a business scheme designed to increase the business potential of an educational institution is not only inconsistent with sound public policy bat also good morals.

(NOTE: The above answer is based on Cui vs. Arellano University, L-15127, May 30, 1961 applying Art. 1306 of the New Civil Code.)

00; Persons; waiver of rights

2004 No. IX

B. DON, an American businessman, secured parental consent for the employment of five minors to play certain roles in two movies he was producing at home in Makati. They worked at odd hours of the day and night, but always accompanied by parents or other adults. The producer paid the children talent fees at rates better than adult wages.

But a social worker, DEB, reported to OSWD that these children often missed going to school. They sometimes drank wine, aside from being exposed to drugs. In some scenes, they were filmed naked or in revealing costumes. In his defense, DON contended all these were part of artistic freedom and cultural creativity. None of the parents complained, said DON. He also said they signed a contract containing a waiver of their right to file any complaint in any office or tribunal concerning the working conditions of their children acting in the movies.

Is the waiver valid and binding? Why or why not? Explain. (5%)

00; Persons; waiver of rights

1977 No. XX-a

Rights may be waived In what cases may waiver be prohibited and declared null and void?

Answer

Waiver is prohibited when it is contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law, (Art. 6, Civil Code).

01; Conflict of laws

1981 No. 18

(b) True or false? -- A woman loses her citizenship when she marries a foreigner and under the national law of the husband she automatically acquires his citizenship by marriage.

Answer

(b) False. Under the 1973 Constitution, a female citizen of the Philippines who marries an alien shall retain her citizenship. Consequently, she does not necessarily acquire her husband's nationality.

01; Conflict of laws; Art. 15

1998 No II.

Francis Albert, a citizen and resident of New Jersey, U.S.A., under whose law he was still a minor, being only 20 years of age, was hired by ABC Corporation of Manila to serve for two years as its chief computer programmer. But after serving for only four months, he resigned to join XYZ Corporation, which enticed him by offering more advantageous terms. His first employer sues him in Manila for damages arising from the breach of his contract of employment. He sets up his minority as a defense and asks for annulment of the contract on that ground. The plaintiff disputes this by alleging that since the contract was executed in the Philippines under whose law the age of majority is 18 years, he was no longer a minor at the time of perfection of the contract.

1,

Will the suit prosper? [3%]

2.

Suppose XYZ Corporation is impleaded as a co-defendant, what would

be the basis of its liability, if any? [2%]

Answer:

1. The suit will not prosper under Article 15, Civil Code, New Jersey law

governs Francis Albert's capacity to act, being his personal law from the standpoint of both his nationality and his domicile. He was, therefore, a minor at the time he entered into the contract.

Alternative Answer:

1. The suit will not prosper. Being a U.S. national, Albert's capacity to enter

into a contract is determined by the law of the State of which he is a national, under which he to still a minor. This is in connection with Article 15 of the Civil Code which embodies the said nationality principle of lex patriae. While this principle intended to apply to Filipino citizens under that provision, the Supreme Court in Recto v. Harden is of the view that the status or capacity of foreigners is to be determined on the basis of the same provision or principle, i.e., by U.S. law in the present problem.

Plaintiffs argument does not hold true, because status or capacity is not determined by lex loci contractus but by lex patriae.

Another Answer:

1. Article 17 of the Civil Code provides that the forms and solemnities of

contracts, wills and other public instruments shall be governed by the laws of the

country in which they are executed.

Since the contract of employment was executed in Manila, Philippine law should govern. Being over 18 years old and no longer a minor according to Philippine Law, Francis Albert can be sued. Thus, the suit of ABC Corporation against him for damages will prosper*

Answer:

2. XYZ Corporation, having enticed Francis Albert to break his contract

with the plaintiff, may be held liable for damages under Art. 1314, Civil Code.

Alternative Answer:

2. The basis of liability of XYZ Corporation would be Article 28 of the Civil

Code which states that:

"Unfair competition in agricultural, commercial, or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage."

Another Answer:

2. No liability arises. The statement of the problem does not in any way

suggest intent, malice, or even knowledge, on the part of XYZ Corporation as to the contractual relations between Albert and ABC Corporation.

01; Conflict of laws; Art. 15; legal capacity

1995 No, 2:

3. What law governs the capacity of the Filipino to buy the land? Explain your

answer and give its legal basis.

Answer:

Philippine law governs the capacity of the Filipino to buy the land. In addition to the principle of lex rei sitae given above. Article 15 of the NCC specifically provides that Philippine laws relating to legal capacity of persons are binding upon citizens of the Philippines no matter where they are.

01; Conflict of laws; Art. 15; legal capacity; capacity to contract

1995 No, 2:

2. What law governs the capacity of the Japanese to sell the land? Explain

your answer and give its legal basis.

Answer:

Japanese law governs the capacity of the Japanese to sell the land being his personal law on the basis of an interpretation of Art. 15, NCC.

Alternative Answers;

a) Since capacity to contract is governed by the personal law of an

individual, the. Japanese seller's capacity should be governed either by his national

law (Japanese law) or by the law of his domicile, depending upon whether Japan follows the nationality or domiciliary theory of personal law for its citizens.

b) Philippine law governs the capacity of the Japanese owner in selling the land. While as a general rule capacity of persons is governed by the law of his nationality, capacity concerning transactions involving property is an exception. Under Article 16 of the NCC. the capacity of persons in transactions involving title to property is governed by the law of the country where the property is situated. Since the property Is in the Philippines, Philippine law governs the capacity of the seller.

01; Conflict of laws; Art. 16

2001 No I

Alex was born a Filipino but was a naturalized Canadian citizen at the time of his death on December 25,1998. He left behind a last will and testament in which he bequeathed all his properties, real and personal, In the Philippines to his acknowledged illegitimate Fillpina daughter and nothing to his two legitimate Filipino sons. The sons sought the annulment of the last will and testament on the ground that it deprived them of their legitimes but the daughter was able to prove that there were no compulsory heirs or legitimes under Canadian law. Who should prevail? Why? (5%)

SUGGESTED ANSWER

The daughter should prevail because Article 16 of the New Civil Code provides that intestate and testamentary succession shall be governed by the national law of the person whose succession is under consideration.

01; Conflict of laws; Art. 16

1995 No, 2:

While in Afghanistan, a Japanese by the name of Sato sold to Ramoncito, a Filipino, a parcel of land situated in the Philippines which Sato inherited from his Filipino mother.

1. What law governs the formality in the execution of the contract of sale? Explain your answer and give its legal basis.

Answer:

Under Art. 16 par. 1, NCC, real property is subject to the law of the country where it is situated. Since the property is situated in the Philippines, Philippine law applies. The rule of lex rei sitae in Article 16 prevails over lex loci contractu in Article 17 of the NCC.

Alternative Answer:

Afghanistan law governs the formal requirements of the contract since the execution is in Afghanistan. Art. 17 of the Civil Code provides that the forms and solemnities of contracts, wills, and other public Instruments shall be governed by the laws of the country in which they are executed. However, if the contract was executed before the diplomatic or consular officials of the Republic of the Philippines in Afghanistan, Philippine law shall apply.

01; Conflict of laws; Art. 16

1985 No. 11

A, a Filipino, 18 years of age, married and residing in a foreign country, having run out of money, borrowed P60,000.00 from B and to secure its payment, executed a real mortgage on a house and lot owned by him in Manila. Under the law of the country where he resides., he is deemed to be of age and the real estate mortgage is valid. The loan not having been paid on maturity, B brought an action in Manila to foreclose the mortgage and recover what is due him.

a) May the real estate mortgage be foreclosed? Reasons.

b) May B recover the loan of P50.000.00 due him as an unsecured debt and

have the mortgaged property levied upon and sold for the satisfaction thereof?

Discuss.

Answers:

(a) and (b)

1. Since A is 18 years of age and is a minor in our country, his real property is governed by our law, and therefore, the mortgage is voidable and can be

enforced subject to the defense of minority. The law provides that an emancipated minor cannot borrow money. By analogy with the ruling in the case of a conveyance of conjugal real property by the husband without the consent of the wife that held that conveyance void, the mortgage is likewise void.

Laws relating to family rights and duties or to the status, condition and

2.

legal capacity of persons are binding upon the citizens of the Philippines even though living abroad.

A is a minor emancipated by marriage. Hence, he cannot borrow money or

alienate or encumber real property without the consent of his father, mother or guardian. The real estate mortgage cannot be foreclosed and there can be no recovery because both contracts were not validly executed.

3. The law provides that an emancipated minor cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian (Art. 399). Applying by analogy the ruling in the case of conveyance of conjugal real property by the husband without the wife's consent that held that conveyance void (Garcia re. Court of Appeals), the loan and the real estate mortgage contracted by A should be declared void. The real estate mortgage may not thus be foreclosed.

For the reason addressed above, the rules on void contracts would apply that may generally negate recovery by either party thereunder (Art, 1412, Civil Code),

4. The loan is merely voidable under Art. 1390 being a contract where one is incapable of giving consent. Until annulled, the loan, as well as the real estate mortgage are binding between the parties.

When & contract is voidable because of such incapacity, the incapacitated is "not obliged to make any restitution except insofar as he has benefited by the thing or price received by him" (Art. 1399, Civil Code).

01; Conflict of laws; Art. 17; contracts contrary to public policy

1996 No 18:

Alma was hired as a domestic helper in Hongkong by the Dragon Services, Ltd., through its local agent. She executed a standard employment contract designed by the Philippine Overseas Workers Administration (POEA) for overseas Filipino workers. It provided for her employment for one year at a salary of US$1,000.00 a month. It was submitted to and approved by the POEA. However, when she arrived In Hongkong, she was asked to sign another contract by Dragon Services, Ltd. which reduced her salary to only US$600.00 a month. Having no other choice. Alma signed the contract but when she returned to the Philippines, she demanded payment of the salary differential of US$400.00 a month. Both Dragon Services, Ltd. and its local agent claimed that the second contract is valid under the laws of Hongkong, and therefore binding on Alma.

Is their claim correct? Explain. Answer:

Their claim is not correct. A contract is the law between the parties but the law can disregard the contract if it is contrary to public policy. The provisions of the 1987 Constitution on the protection of labor and on social justice (Sec. 10. Art II) embody a public policy of the Philippines. Since the application of Hongkong law in this case is in violation of that public policy, the application shall be disregarded by our Courts. (Cadalin v. POEA. 238 SCRA 762)

Alternative Answers;

a) Their claim is not correct. Assuming that the second contract is binding under Hongkong law, such second contract Is invalid under Philippine law which

recognizes as valid only the first contract. Since the case is being litigated in the Philippines, the Philippine Court as the forum will not enforce any foreign claim obnoxious to the forum's public policy. There is a strong public policy enshrined in our Constitution on the protection of labor. Therefore, the second contract shall be disregarded and the first contract will be enforced. (Cadalin v. POEA, 238 SCRA

762).

b) No, their claim is not correct. The second contract executed In Hongkong,

partakes of the nature of a waiver that is contrary to Philippine law and the public

provides that our prohibitive

laws concerning persons, their acts, or their property or which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or conventions agreed upon in a foreign country. Besides. Alma's consent to the second contract was vitiated by undue influence, being virtually helpless and under financial distress in a foreign country, as indicated by the given fact that she signed because she had no choice. Therefore, the defendants claim that the contract is valid under Hongkong law should be rejected since under the doctrine of processual presumption a foreign law is deemed similar or identical to Philippine law in the absence of proof to the contrary, and such is not mentioned in the problem as having been adduced.

01; Conflict of laws; Art. 17; labor contracts

policy governing Filipino overseas workers. Art. 17,

1991 No 7;

A. The Japan Air Lines (JAL), a foreigner corporation licensed to do

business in the Philippines, executed in Manila a contract of employment with Maritess Guapa under which the latter was hired as a stewardess on the aircraft plying the Manila-Japan-Manila route. The contrast specifically provides that (1) the duration of the contract shall be two (2) years, (2) notwithstanding the above duration, JAL may terminate the agreement at any time by giving her notice in writing ten (10) days in advance, and (3) the contract shall be construed as governed under and by the laws of Japan and only the court in Tokyo, Japan shall have the jurisdiction to consider any matter arising from or relating to the contract.

JAL dismissed Maritess on the fourth month of her employment without giving her due notice. Maritess then filed a complaint with the Labor Arbiter for reinstatement, backwages and damages. The lawyer of JAL contends that neither the Labor Arbiter nor any other agency or court In the Philippines has jurisdiction over the case in view of the above provision (3) of the contract which Maritess voluntarily signed. The contract Is the law between her and JAL.

Decide the issue.

B. Where under a State's own conflicts rule that domestic law of another

State should apply, may the courts of the former nevertheless refuse to apply the

latter? If so, under what circumstance?

Answer,

A, Labor Legislations are generally intended as expressions of public policy on employer-employee relations. The contract therefore, between Japan Air Lines (JAL) and Maritess may apply only to the extent that its provisions are not inconsistent with Philippine labor laws intended particularly to protect employees.

Under the circumstances, the dismissal of Maritess without complying with Philippine Labor law would be invalid and any stipulation in the contract to the contrary is considered void. Since the law of the forum in this case is the Philippine law. the issues should-be resolved in accordance with Philippine law.

B. The third paragraph of Art. 17 of the Civil Code provides that:

"Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country."

Accordingly, a state's own conflict of laws rule may, exceptionally be inapplicable, given public policy considerations by the law of the forum.

Going into the specific provisions of the contract in question, I would rule as follows:

1. The duration of the contract is not opposed to Philippine law and it can

therefore be valid as stipulated;

2. The second provision to the effect that notwithstanding duration, Japan

Air Lines (JAL) may terminate her employment is invalid, being inconsistent with our

Labor laws;

3. That the contract shall be construed as governed under and by the laws

of Japan and only the courts of Tokyo, Japan shall have jurisdiction, is invalid as clearly opposed to the aforecited third paragraph of Arts. 17 and 1700 of the Civil Code, which provides:

"Art. 1700. The relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good. Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects."

Alternative Answer;

A. When a contract has a foreign element such as in the factual setting stated in the problem where one of the parties is a foreign corporation, the contract can be sustained as valid particularly the stipulation expressing that the contract is governed by the laws of the foreign country. Given this generally accepted principle of international law, the contract between Maritess and JAL is valid and it should therefore be enforced.

01; Conflict of laws; Arts 15, 16 & 17

1998 No I.

Juan is a Filipino citizen residing in Tokyo, Japan. State what laws govern:

1. His capacity to contract marriage in Japan, [ 1%]

2. His successional rights as regards his deceased Filipino father's property

in Texas, U.S.A. [1%]

3. The extrinsic validity of the last will and testament which Juan executed

while sojourning in Switzerland. [2%]

4. The intrinsic validity of said will. (1%) Answer:

1. Juan's

capacity

to

contract

marriage

is governed by Philippine

law - i.e., the Family Code -pursuant to Art. 15, Civil Code, which provides that our laws relating to, among others, legal capacity of persons are binding upon citizens of the Philippines even though living abroad.

Answer:

2. By way of exception to the general rule of lex rei sitae prescribed by the

first paragraph of Art. 16. Civil Code, a person's successional rights are governed by

the national law of the decedent (2nd par

was a Filipino citizen, Philippine law governs Juan's successional rights.

Art. 16). Since Juan's deceased father

Another Answer:

2. Juan's successional rights are governed by Philippine law, pursuant to Article 1039 and the second paragraph of Article 16, both of the Civil Code. Article

1039, Civil Code, provides that capacity to succeed shall be governed by the "law of

the nation" of the decedent, i.e

two that the amount of successional rights, order of succession, and intrinsic validity of testamentary succession shall be governed by the "national law" of the decedent who is identified as a Filipino in the present problem.

his national law. Article 16 provides In paragraph

Answer:

3. The extrinsic validity of Juan's will is governed by (a) Swiss law, It being

the law where the will was made (Art. 17. 1st par. Civil Code), or (b) Philippine law, by implication from the provisions of Art. 816, Civil Code, which allows even an alien

who is abroad to make a will in conformity with our Civil Code.

Answer:

4. The intrinsic validity of his will is governed by Philippine law, it being his

national law. (Art. 16, Civil Code)

01; Conflict of laws; Arts 15, 16, 17

2002 No III

Felipe and Felisa, both Filipino citizens, were married in Malolos, Bulacan on June 1, 1950. In 1960 Felipe went to the United States, becoming a U.S. citizen in 1975. In 1980 the obtained a divorce from Felisa, who was duly notified of the proceedings. The divorce decree became final under California Law. Coming back to the Philippines in 1982, Felipe married Sagundina, A Filipino Citizen. In 2001, Filipe, then domiciled in Los Angeles, California, died, leaving one child by Felisa, and another one by Sagundina. He left a will which he left his estate to Sagundina and his two children and nothing to Felisa.

Sagundina files a petition for the probate of Felipe’s will. Felisa questions the intrinsic validity of the will, arguing that her marriage to Felipe subsisted despite the divorce obtained by Felipe because said divorce is not recognized in the Philippines. For this reason, she claims that the properties and that Sagundina has no successional rights.

A. Is the divorce secured by Felipe in California recognizable and valid in

the Philippines? How does it affect Felipe’s marriage to Felisa? Explain. (2%).

B. What law governs the formalities of the will? Explain. (1%)

C. Will Philippine law govern the intrinsic validity of the will? Explain. (2%)

SUGGESTED ANSWER:

A. (1.) The divorce secured by Felipe in California is recognizable and

valid in the Philippines because he was no longer a Filipino at that time he secured it, Aliens may obtain divorces abroad which may be recognized in the Philippines provided that they are valid according to their national law (Van Dorn V. Romillo, Jr., 139 SCRA 139 [1985]; Quita v. Court of Appeals, 300 SCRA 406 [1998]; Llorente v. Court of Appeals, 345 SCRA 595 [2000] ).

(2). With respect to Felipe the divorce is valid, but with respect to Felisa it is not. The divorce will not capacitate Felisa to remarry because she and Felipe were both Filipinos at the time of their marriage. However, in DOJ Opinion No. 134 series of 1993, Felisa is allowed to remarry because the injustice sought to be corrected by Article 26 also obtains in her case.

B. The foreigner who executes his will in the Philippines may observed the

formalities described in:

1. The Law of the country of which he is a citizen under Article 817 of the

New Civil Code, or

2. the law of the Philippines being the law of the place of execution under

Article 17 of the New Civil Code.

C. Philippine law will not govern the intrinsic validity of the will. Article 16

of the New Civil Code provides that intrinsic validity of testamentary provisions shall

be governed by the National Law of the person whose succession is under consideration. California law will govern the intrinsic validity of the will.

01; Conflict of laws; cognovit; borrowing statute; characterization

1994 No 1;

In Private International Law (Conflict of Laws) what is:

1}

Cognovit?

2)

A borrowing statute?

3)

Characterization?

Alternative Answers;

1) a) Cognovit is a confession of judgment whereby a portion of the complaint is confessed by the defendant who denies the rest thereof (Philippine law Dictionary, 3rd Ed.) (Ocampo v. Florenciano, L-M 13553, 2/23/50),

b) Cognovit Is a "statement of confession" Oftentimes, it is referred to as a

"power of attorney" or simply as a "power", it is the written authority of the debtor and his direction to the clerk of the district court, or justice of the peace to enter judgment against the debtor as stated therein. (Words and Phrases, vol. 7, pp. 115-

166).

c) Cognovit is a plea in an action which acknowledges that the defendant did

undertake and promise as the plaintiff in its declaration has alleged, and that it cannot deny that it owes and unjustly detains from the plaintiff the sum claimed by him in his declaration, and consents that judgment be entered against the defendant for a certain sum. [Words and Phrases, vol. 7, pp. 115-166).

d) Cognovit is a note authorizing a lawyer for confession of judgment by

defendant.

2) "Borrowing Statute" - Laws of the state or jurisdiction used by another

state in deciding conflicts questioned involved in the choice of law (Black's Law Dictionary, 5th ed. 1979).

3) a) "Characterization" is otherwise called "classification" or "qualification." It is the process of assigning a disputed question to its correct legal category (Private International Law, Salonga).

b) "Characterization" is a process in determining under what category a

certain set of facts or rules fall. (Paras, Conflict of Laws, p. 94. 1984 ed.)

01; Conflict of laws; effect of divorce granted to former Filipinos

1997 No. 2:

In 1977, Mario and Clara, both Filipino citizens, were married in the Philippines. Three years later, they went to the United States of America and established their residence in San Francisco, California. In 1987, the couple applied for, and were granted, U.S. citizenship. In 1989, Mario, claiming to have been

abandoned by Clara, was able to secure a decree of divorce in Reno, Nevada, U.S.A.

In 1990, Mario returned to the Philippines and married Juana who knew well Mario's past life.

(a)

Is the marriage between Mario and Juana valid?

(b)

Would the renvoi doctrine have any relevance to the case?

Answer;

(a) Yes, because Phil law recognizes the divorce between Mario and Clara

as valid.

(b) No, (pls see renvoi)

01; Conflict of laws; effect of divorce secured abroad

1978 No. X

Ana and Basilio, both Filipino citizens and of legal age, were married in 1950 in Antique but they never lived together. Ana subsequently left the Philippines and secured a divorce in Nevada, United States in 1953 on the ground of extreme mental cruelty. In 1955, Ana sought papal dispensation of the marriage and then married Carl, an American, in Nevada. She lived with him in California and begot children. She acquired American citizenship in 1959.

the

Philippines? What law supports your answer?

2. What is the status of the marriage of Ana and Carl under our laws?

Reasons for your answer.

1. Will the divorce decree obtained abroad be accorded validity

in

Answer

1. The divorce decree obtained abroad is not accorded validity in the Philippines. The following laws support this answer:

(a) The Civil Code states that laws relating to family rights and duties, or to

the status, condition and legal capacity of persona are binding upon citizens of the Philippines, even though living abroad. It is clear that the divorce decree, which affects the status and conditions of Ana and Basilio, is not valid under Philippine laws.

(b) It is a well-settled rule in this jurisdiction that absolute divorce is contrary

to public policy. The Civil Code states that a declaration of public policy cannot be

rendered ineffective by a judgment promulgated in a foreign country.

(NOTE: The above answer is based on Arts. I5 and 17, par. 3, Civil Code and on decided cases.)

2. The marriage of Ana and Carl is void under the Philippine laws for the following reasons:

(a) Ana is still married to Basilio under Philippine laws. The decree of

absolute divorce which she obtained in Nevada is not valid in the Philippines for the

reasons stated above. The papal dispensation which she also obtained is not also valid under Philippine laws.

(b) True, the Civil Code provides that a marriage celebrated outside of the

Philippines in accordance with the laws in force in the country where it is celebrated, and valid there as such, shall also be valid in this country. But there are exceptions to this rule. This rule cannot be applied if the marriage is bigamous, polygamous, or incestuous as determined by Philippine laws. The marriage of Ana and Carl is

certainly bigamous as determined by Philippine laws.

(NOTE: The above answer is based on Arts. 83 and 71 of the Civil Code.)

01; Conflict of laws; effect of divorce secured abroad

1983 No. 19:

A, a Filipino woman, and B, an American, were married and initially lived in