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CIVIL LAW REVIEWER

CIVIL LAW 2010

PERSONS & FAMILY RELATIONS

SUCCESSION

OBLIGATIONS

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

CONTRACTS

PROPERTY LAND TITLES & DEEDS

SALES CREDIT TRANSACTIONS

AGENCY

PARTNERSHIP

TORTS & DAMAGES PRIVATE INTERNATIONAL LAW

CIVIL LAW REVIEWER

PERSONS & FAMILY RELATIONS


Table of Contents
Chapter I. Civil Personality..............................3 I. Concept and Classes of Persons..........3 II. Capacity to Act and Restrictions Thereon..........................................................5 Chapter II. Citizenship and Domicile..............8 I. Who are Filipinos ..................................8 II. Domicile ................................................8 Chapter III. Marriage.........................................9 I. Definition and Nature of Marriage .........9 II. Requisites of Marriage ..........................9 III. Marriages Solemnized Abroad............11 IV. Presumption of Marriage.....................11 Chapter IV. Void Marriages ...........................13 I. Grounds ..............................................13 II. Period to File Action or Raise Defense 15 III. Effects of Nullity ..................................16 Chapter V. Voidable Marriages .....................18 I. Grounds for Annulment (Art. 45, FC) ..18 II. Marriage When One Spouse Absent ..21 III. Effects of Pending Actions/Decree (Art. 49, FC) .................................................22 IV. Voidable v. Void Marriage ...................23 V. Voidable v. Legal Separation ..............23 VI. Jurisdiction ..........................................23 Chapter VI. Legal Separation, Divorce and De Facto Separation ............................................24 I. Grounds for Legal Separation.............24 II. Defenses .............................................25 III. When to File/Try Actions .....................25 IV. Effects of Filing Petition for Legal Separation....................................................25 V. Effects of Decree for Legal Separation 25 VI. Reconciliation......................................26 VII. Divorce............................................26 VIII. De Facto Separation.......................27 Chapter VII. Rights and Obligations Between Husband and Wife..........................................28 I. Obligations of Spouses (Arts. 68-71, FC) 28 II. Rights of Spouses (Arts. 72-73, FC) ...28 III. Use of Surname ..................................28 Chapter VIII. Property Relations Between Spouses ..........................................................29 I. General Provisions..............................29 II. Donations by Reason of Marriage ......30 III. Absolute Community of Property ........ 31 IV. Conjugal Partnership of Gains ............ 34 V. Separation of Properties During Marriage....................................................... 38 VI. Property regime of unions without marriage....................................................... 39 Chapter IX. The Family and the Family Home ......................................................................... 41 I. Family.................................................. 41 II. Family Home....................................... 41 Chapter X. Paternity and Filiation ................ 43 I. Kinds of Filiation.................................. 43 II. Impugning Legitimacy (Art. 166) ......... 43 III. Proof of Filiation (Arts. 172 and 175 (1)) 44 IV. Legitimation (Arts. 177 and 182)......... 45 V. Rights of Legitimate and Illegitimate Children (SSS)............................................. 45 Chapter XI. Adoption ..................................... 46 I. RA 8552: Domestic Adoption Act of 1998 46 II. Adoption Procedure under RA 8552 IRR (Secs. 10-32) ............................................... 47 III. RA 8043: Inter-Country Adoption Act of 1995 49 Chapter XII. Support ...................................... 51 I. Support................................................ 51 II. Who are Obliged to Support Each Other (Art. 195)...................................................... 51 III. Properties Answerable for Support (Art. 197-198) ...................................................... 52 IV. Order of Support (SDAB) .................... 52 Chapter XIII. Parental Authority.................... 53 I. Parental Authority ............................... 53 II. Substitute and Special Parental Authority....................................................... 54 III. Suspension or Termination of Parental Authority....................................................... 55 IV. Rights and Duties of Children ............. 55 Chapter XIV. Funerals.................................... 56 I. General Guidelines ............................. 56

CIVIL LAW REVIEWER

SUCCESSION
Table of Contents
Chapter I. Concept of Succession................59 I. Definition of Succession (Art. 774, CC) 59 II. Opening of Succession (Art. 777, CC) 59 III. Kinds of Succession (Art. 778, CC) ....59 IV. Heirs ....................................................60 Chapter II. Testamentary Succession ..........61 I. Concept ...............................................61 II. Testamentary Capacity .......................61 III. Formalities of Wills ..............................61 IV. Qualifications of Witnesses to a Notarial Will 62 V. Qualifications of Witnesses to a Notarial Will 63 VI. Institution of Heirs ...............................63 VII. Applicable Principles of Private International Law .........................................63 VIII. Codicils and Incorporation by Reference ....................................................64 IX. Revocation of Wills and Testamentary Dispositions..................................................64 X. Allowance and Disallowance of Wills..65 XI. Substitution of Heirs ............................66 XII. Legitimes.........................................67 XIII. Preterition........................................69 XIV. Reserva Troncal .............................69 XV. Disinheritance .................................70 XVI. Legacies and Devises.....................71 Chapter III. Intestate Succession..................74 I. Causes for Legal or Intestate Succession...................................................74 II. The Intestate or Legal Heirs................74 III. Fundamental Underlying Principles in Legal or Intestate Succession......................74 IV. Relationship (Arts. 963-969, CC) ........75 V. The Right of Representation (Art. 970, CC) 75 VI. Order of Legal or Intestate Succession 76 VII. Concurrence in Legal or Intestate Succession...................................................77 VIII. Outline of Intestate Shares .............77 IX. Order of Concurrence in the Case of an Adopted Child (Art, 190, FC) .......................78 Chapter IV. Provisions Common to Testamentary and Intestate Succession .....79 I. Accretion .............................................79 II. Capacity to Succeed ...........................80 III. Acceptance and Repudiation of Inheritance ...................................................81 IV. Collation (Arts. 1061-1077, CC)..........81 Chapter V. Partition and Distribution of Estate .............................................................. 83 I. Concept of Partition ............................ 83 II. Effects of Partition............................... 84 III. Nullification of Partition ....................... 84 IV. Important Periods in Partition ............. 85 Chapter VI. Application of the Important Concepts through Sample Computational Problems......................................................... 86 I. Institution of Heirs ............................... 86 II. Legitimes............................................. 86 III. Intestate Succession........................... 87 IV. Accretion ............................................. 87 V. Collation .............................................. 88

CIVIL LAW REVIEWER

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

CIVIL LAW REVIEWER

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

CIVIL LAW REVIEWER

PROPERTY
Table of Contents
Chapter I. Definition and Classification of Property.........................................................137 I. Definition ...........................................137 II. Classification .....................................137 Chapter II. Ownership ..................................144 I. Definition ...........................................144 III. Specific Rights under the Civil Code.144 IV. Limitations on Real Right of Ownership 146 Chapter III. Accession..................................147 I. Definition ...........................................147 II. General Principles of Accession .......147 III. Kinds of Accession............................147 IV. Principles Governing Each Kind of Accession...................................................147 Chapter IV. Quieting of Title........................152 I. In General .........................................152 II. Purpose .............................................152 III. Nature: Quasi in Rem........................152 IV. Requisites .........................................152 V. Prescription of Action ........................153 Chapter V. Co-Ownership............................154 I. Definition ...........................................154 II. Characteristics ..................................154 III. Difference between Co-ownership and Joint Tenancy.............................................155 IV. Difference between Co-ownership and Partnership.................................................155 V. Sources of Co-Ownership .................155 VI. Rights of Each Co-owner over the Thing or Property Owned in Common .................157 VII. Implication of Co-owners Right over His Ideal Share ..........................................161 VIII. Rules on Co-Ownership Not Applicable to CPG or ACP.........................161 IX. Special Rules on Ownership of Different Stories of a House as Differentiated from Provisions of the Condominium Act...........162 X. Extinguishment of Co-Ownership .....166 Chapter VI. Possession ...............................168 I. Definition ...........................................168 II. Degrees of Possession .....................169 III. Classes of Possession ......................169 IV. Cases of Possession.........................169 V. What Things May be Possessed ......170 VI. What May Not Be Possessed by Private Persons......................................................171 VII. Acquisition of Possession .............171 VIII. Effects of Possession ...................173 IX. Effects of Possession in the Concept of Owner ........................................................177 X. Presumption in Favor of the Possessorfor Acquisitive Prescription ....178 XI. Possesion May Be Lost By ...............179 Chapter VII. Usufruct ................................... 181 I. Concept............................................. 181 II. Characteristics .................................. 181 III. Usufruct Distiguished from Lease and Servitude.................................................... 181 IV. Classes of Usufruct........................... 182 V. Rights of Usufructuary ...................... 184 VI. Rights of the Naked Owner............... 186 VII. Obligations of the Usufructuary .... 187 VIII. Special Cases of Usufruct ............ 190 IX. Extinguishment of Usufruct............... 192 X. Conditions Not Affecting Usufruct..... 194 Chapter VIII. Easement ................................ 196 I. Concept............................................. 196 II. Essential Features ............................ 196 III. Classification of Servitudes............... 197 IV. General Rules Relating to Servitudes 198 V. Modes of Acquiring Easements ........ 198 VI. Rights and Obligations of Owners of Dominant and Servient Estates ................. 199 VII. Modes of Extinguishment of Easements................................................. 200 VIII. Legal Easements .......................... 202 Chapter IX. Nuisance ................................... 212 I. Definition ........................................... 212 II. Classes ............................................. 212 III. Liability in Case of Nuisance............. 213 IV. Regulation of Nuisances ................... 214 Chapter X. Modes of Acquiring Ownership ....................................................................... 217 I. Mode v. Title ..................................... 217 II. Mode ................................................. 217 Chapter XI. Donation ................................... 222 I. Nature ............................................... 222 II. Requisites ......................................... 222 III. Kinds ................................................. 222 IV. Who May Give or Receive Donations 223 V. Who May Not Give or Receive Donations................................................... 224 VI. Acceptance ....................................... 225 VII. Form ............................................. 225 VIII. What May Be Donated ................. 225 IX. Effect ................................................. 226 X. Revocation and Reduction................ 227 Chapter XII. Lease........................................ 232 I. General Characteristics .................... 232 II. Kinds ................................................. 232 III. Lease of Things ................................ 232

CIVIL LAW REVIEWER

LAND TITLES and DEEDS


Table of Contents
Chapter I: Background, Basic Concepts and General Principles........................................239 I. Definitions and Basic Concepts ........239 II. Nature and stages.............................240 III. Purpose of Registration.....................240 IV. Modes of Acquiring Land Titles.........240 V. Jurisdiction ........................................240 Chapter 2: Torrens Certificate of Title .......241 I. Original Certificate of Title or OCT....241 II. Transfer Certificate of Title................241 III. Patents ..............................................241 Chapter 3: Original Registration.................242 I. Laws Governing Land Registration...242 II. Effect of Registration.........................242 III. Original Registration Proceeding ......242 IV. Attributes of and Limitation In Certificate of Title and Registered Land (FIIC) ...........247 V. Judicial Confirmation of Imperfect or Incomplete Titles............................249 Chapter 4: Cadastral Registration Proceedings..................................................251 I. Steps in Cadastral Registration Proceedings ...............................................252 Chapter 5: Subsequent Registration..........253 I. Two Types of Dealings......................253 II. Necessity and Effects of Registration 253 III. Voluntary vs. Involuntary Dealings..253 IV. Registration of Voluntary Instruments in General ......................................................254 V. Registration of Deeds of Sale and Transfers....................................................255 VI. Mortgages and Leases......................256 VII. Powers of Attorney; Trusts ...........257 VIII. Involuntary Dealings .....................257 Chapter 6: System of Registration of Unregistered Lands ..................................... 261 I. Key Points......................................... 261 II. Procedure ......................................... 261 Chapter 7: Registration of Public Lands ... 262 I. Classification of Land of the Public Domain ...................................................... 262 II. Nature of Title to Public Lands Conveyed .................................................. 262 III. Procedure of Conveying Public Land to a Private Person ........................................ 262 IV. Director of Lands: Quasi-judicial officer 263 V. Modes of Alienating Public Lands:.... 263 VI. Patents ......................................... 263 Chapter 8: Remedies of the Aggrieved Party ....................................................................... 264 Chapter 9: Reconstitution 0f Titles ........... 266 I. Grounds ............................................ 266 II. Petitions for Reconstitution ............... 266 III. Duties of the Land Registration Authority 266 IV. Effects of Fraud, Deceit and Machination in the Reconstitution of Titles 266

CIVIL LAW REVIEWER

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

CIVIL LAW REVIEWER

CREDIT TRANSACTIONS
Table of Contents
Chapter I. General Principles ......................307 I. Types of Credit Transactions ............307 II. Security .............................................307 III. Bailment ............................................307 Chapter II. Loan (Arts. 1933-1961, CC).......309 I. Definition ...........................................309 II. Characteristics of a Loan ..................309 III. Kinds of Loan: In General .................309 IV. Commodatum....................................309 V. Obligations of the Bailee in Commodatum ............................................310 VI. Obligations of the Bailor in Commodatum ............................................311 VII. Mutuum or Simple Loan................311 VIII. Interests ........................................312 IX. The Usury Law ..................................312 Chapter III. Deposit ......................................314 I. Definition ...........................................314 II. Kinds of Deposit ................................314 III. Characteristics of Deposit .................314 IV. Deposit Distinguished From Mutuum and Commodatum .....................................314 V. Obligations of the Depositary............314 VI. Obligations of the Depositor..............317 VII. Extinguishment of Deposit (Art. 1995) 317 VIII. Necessary Deposit........................317 IX. Judicial Deposit .................................318 Chapter IV. Guaranty ...................................319 I. Definition ...........................................319 II. Characteristics ..................................319 III. Classification .....................................319 IV. Rules Governing Guaranty ...............319 V. Guaranty Distinguished from Others.322 VI. The Guarantor (Arts. 2056-2057)......322 VII. Effects of Guaranty .......................322 VIII. Extinguishment of Guaranty .........325 Chapter V. Legal and Judicial Bonds.........326 Chapter VI. Suretyship.................................327 Chapter VII. Pledge, Mortgage, Antichresis .......................................................................328 I. Essential Requisites Common to Pledge and Mortgage (Art. 2085)...........................328 II. Pledge ...............................................329 III. Mortgage ...........................................332 IV. Foreclosure of Mortgage (Art. 2085).334 V. Antichresis.........................................336 VI. Chattel Mortgage...............................336 Chapter VIII. Concurrence and Preference of Credits........................................................... 338 I. General Provisions............................ 338 II. Classification of Credits .................... 338 III. Preference of Credits ........................ 338

CIVIL LAW REVIEWER

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

CIVIL LAW REVIEWER

PARTNERSHIP
Table of Contents
Chapter I. Nature, Creation, Kinds of Partnership ...................................................361 I. Essential Features ............................361 II. Characteristics ..................................362 III. Distinctions ........................................362 IV. Rules to Determine Existence...........363 V. How Partnership is Formed ..............363 VI. Partnership Term ..............................363 VII. Kinds of Partnerships....................363 Chapter II. Obligations of the Partnership/Partners Among Themselves 366 CRRAMP-LS..............................................366 I. Make Contributions as Promised ......366 III. Manage the Partnership....................367 IV. Render Full Information.....................368 V. Account for benefits ..........................368 VI. Reimburse expenses ........................368 VII. Liable for Partnership Contracts ...368 VIII. Solidarily Liable with Partnership.369 Chapter III. Obligations of the Partnership/Partners as to Third Persons.370 LANN .........................................................370 I. Operate Under a Firm Name (Art. 1815, CC) 370 II. Bound by Partnership Admission......370 III. Bound by Notice Partner ...................370 IV. Liable for Acts of the Partnership......370 Chapter IV. Rights of Partners ...................371 I. Share in Losses and Profits ..............371 II. Associate Another in His Interest......371 III. Access to Partnership Books ............371 IV. Obtain Formal Account .....................371 V. Property Rights .................................371 VI. Convery Real Property (Art. 1819, CC) 372 Chapter V. Rights of the Partnership ........374 I. Acquire Immovables..........................374 II. Preference of Creditors .....................374 Chapter VI. Dissolution and Winding Up ..375 I. Definitions .........................................375 II. Causes for Dissolution ......................375 III. Consequences of Dissolution ...........375 IV. Partners Liability...............................376 Chapter VII. Rights of Partners Upon Dissolution....................................................377 I. Right to Wind Up ...............................377 II. Right to Damages for or to Continue Business on Wrongful Dissolution .............377 III. Right to Lien or Retention, to Stand in Place of Creditor, to be Indemnified .......... 377 IV. Right of Retiring/Deceased Partner (Art. 1841, CC) .................................................. 377 V. Right of Account (Art. 1842, CC) ...... 378 Chapter VIII. Rules on Settlement (Art. 1839, CC)................................................................. 379 Chapter IX. Limited Partnership ................ 380 I. Definition ........................................... 380 II. Forming/Amending a Limited Partnership (Art. 1844, CC) ....................... 381 III. Limited Partner.................................. 382 IV. General Partner ................................ 384 V. Dissolution ........................................ 384 VI. Settling Accounts for Dissolution ...... 385

CIVIL LAW REVIEWER

TORTS & DAMAGES


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

CIVIL LAW REVIEWER

PRIVATE INTERNATIONAL LAW


Table of Contents
Chapter I. Introduction.................................427 Chapter II. Jurisdiction ................................429 I. Bases of Exercise of Judicial Jurisdiction 429 II. Exercise of Jurisdiction .....................429 III. Ways of Dealing with Jurisdiction in a Conflicts Problem.......................................430 Chapter III. Choice of Law ...........................431 I. Approaches to Choice of Law ...........431 Chapter IV. Characterization .......................433 I. Types of Characterization .................433 II. Depecage ..........................................433 Chapter V. Renvoi ........................................434 I. Definition ...........................................434 II. Ways of Dealing with Renvoi ............434 Chapter VI. Notice and Proof of Foreign Law .......................................................................435 I. Proof of Foreign Law.........................435 II. Exceptions to the Application of Foreign Law 435 Chapter VII. Nationality................................436 I. Determination of Nationality ..............436 II. Procedure for Naturalization .............436 III. Loss of Philippine Citizenship ...........437 IV. Problems in Applying the Nationality Principle .....................................................438 Chapter VIII. Domicile ..................................439 I. Domicile ............................................439 II. Comparative Merits and Demerits of Domicile and Nationality ............................440 Chapter IX. Principles on Personal Status and Capacity.................................................441 I. Definition ...........................................441 II. Beginning and End of Personality.....441 III. Absence ............................................441 IV. Name.................................................442 V. Age of Majority ..................................442 VI. Capacity ............................................442 Chapter X. Family Relations........................443 I. Marriage ............................................443 II. Divorce and Separation.....................445 III. Annulment and Declaration of Nullity 445 IV. Parental Relations.............................446 V. Adoption ............................................446 Chapter XI. Property .................................... 447 I. Controlling LawLex Situs/Lex Rei Sitae 447 II. Exceptions to Lex Situs..................... 447 III. Situs of Certain Properties ................ 447 Chapter XII. Contracts ................................. 449 I. Extrinsic Validity of Contracts ........... 449 II. Extrinsic Validity of Contracts ........... 449 III. Capacity to Enter Into Contracts....... 449 IV. Choice of Law Issues in Conflicts Contracts Cases ........................................ 449 V. Limitation Choice of Law................... 450 VI. Applicable Law in the Absence of Effective Choice......................................... 450 Chapter XIII. Succession ............................. 451 I. Extrinsic Validity (Arts. 17, 815-817, CC) 451 II. Intrinsic Validity ................................. 451 III. Interpretation of Wills ........................ 451 IV. Revocation ........................................ 451 V. Probate.............................................. 451 VI. Administration of Estates .................. 452 VII. Trusts............................................ 452 Chapter XIV. Torts and Crimes ................... 453 I. Torts .................................................. 453 II. Crimes............................................... 454 Chapter XV. Torts and Crimes .................... 455 I. Personal Law of Corporations .......... 455 II. Domicile/Residence of Corporations 455 III. Jurisdiction Over Foreign Corporations 455 IV. Right of Foreign Corporations to Bring Suit 456 Chapter XVI. Foreign Judgments ............... 457 I. Recognition v. Enforcement.............. 457 II. Bases of Recognition and Enforcement 457 III. Policy of Preclusion Underlying Recognition and Enforcement ................... 457 IV. Requisites for Recognition or Enforcement .............................................. 457 V. Procedures for Enforcement ............. 457 VI. Effect of Foreign Judgment in the Philippines ................................................. 458

CIVIL LAW REVIEWER

TABLE of CONTENTS

PERSONS & FAMILY RELATIONS


Table of Contents
Chapter I. Civil Personality..............................3 I. Concept and Classes of Persons..........3 II. Capacity to Act and Restrictions Thereon..........................................................5 Chapter II. Citizenship and Domicile..............8 I. Who are Filipinos ..................................8 II. Domicile ................................................8 Chapter III. Marriage.........................................9 I. Definition and Nature of Marriage .........9 II. Requisites of Marriage ..........................9 III. Marriages Solemnized Abroad............11 IV. Presumption of Marriage.....................11 Chapter IV. Void Marriages ...........................13 I. Grounds ..............................................13 II. Period to File Action or Raise Defense 15 III. Effects of Nullity ..................................16 Chapter V. Voidable Marriages .....................18 I. Grounds for Annulment (Art. 45, FC) ..18 II. Marriage When One Spouse Absent ..21 III. Effects of Pending Actions/Decree (Art. 49, FC) .................................................22 IV. Voidable v. Void Marriage ...................23 V. Voidable v. Legal Separation ..............23 VI. Jurisdiction ..........................................23 Chapter VI. Legal Separation, Divorce and De Facto Separation ............................................24 I. Grounds for Legal Separation.............24 II. Defenses .............................................25 III. When to File/Try Actions .....................25 IV. Effects of Filing Petition for Legal Separation....................................................25 V. Effects of Decree for Legal Separation 25 VI. Reconciliation......................................26 VII. Divorce............................................26 VIII. De Facto Separation.......................27 Chapter VII. Rights and Obligations Between Husband and Wife..........................................28 I. Obligations of Spouses (Arts. 68-71, FC) 28 II. Rights of Spouses (Arts. 72-73, FC) ...28 III. Use of Surname ..................................28 Chapter VIII. Property Relations Between Spouses ..........................................................29 I. General Provisions..............................29 II. Donations by Reason of Marriage ......30 III. Absolute Community of Property ........ 31 IV. Conjugal Partnership of Gains ............ 34 V. Separation of Properties During Marriage....................................................... 38 VI. Property regime of unions without marriage....................................................... 39 Chapter IX. The Family and the Family Home ......................................................................... 41 I. Family.................................................. 41 II. Family Home....................................... 41 Chapter X. Paternity and Filiation ................ 43 I. Kinds of Filiation.................................. 43 II. Impugning Legitimacy (Art. 166) ......... 43 III. Proof of Filiation (Arts. 172 and 175 (1)) 44 IV. Legitimation (Arts. 177 and 182)......... 45 V. Rights of Legitimate and Illegitimate Children (SSS)............................................. 45 Chapter XI. Adoption ..................................... 46 I. RA 8552: Domestic Adoption Act of 1998 46 II. Adoption Procedure under RA 8552 IRR (Secs. 10-32) ............................................... 47 III. RA 8043: Inter-Country Adoption Act of 1995 49 Chapter XII. Support ...................................... 51 I. Support................................................ 51 II. Who are Obliged to Support Each Other (Art. 195)...................................................... 51 III. Properties Answerable for Support (Art. 197-198) ...................................................... 52 IV. Order of Support (SDAB) .................... 52 Chapter XIII. Parental Authority.................... 53 I. Parental Authority ............................... 53 II. Substitute and Special Parental Authority....................................................... 54 III. Suspension or Termination of Parental Authority....................................................... 55 IV. Rights and Duties of Children ............. 55 Chapter XIV. Funerals.................................... 56 I. General Guidelines ............................. 56

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PERSONS & FAMILY RELATIONS

CIVIL LAW REVIEWER

Chapter I. CIVIL PERSONALITY

PERSONS & FAMILY RELATIONS

PERSONS & FAMILY RELATIONS TEAM

Chapter I. Civil Personality


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

Prof. Carolina Austria


Faculty Editor

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PERSONS & FAMILY RELATIONS

Anisah Azis Karen Torres


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II.

CIVIL LAW
Kristine Bongcaron Patricia Tobias
Subject Editor

I.

Concept and Classes of Persons

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

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

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Chapter I. CIVIL PERSONALITY

A. Natural Persons (asked in 99 bar exam)


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

Article 42, Civil Code. extinguished by death.

Civil

personality

is

The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will.

People v. Tirol, (1981) Criminal liability ends with death BUT civil liability may be charged against the estate.
Article 43, Civil Code. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

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

Note: Article 43 provides a statutory presumption when there is doubt on the order of death between persons who are called to succeed each other (only). Joaquin v. Navarro, (1948) The statutory presumption of Article 43 was not applied due to the presence of a credible eyewitness as to who died first. Presumption in the Rules of Court (Rule 123, sec. 69, par. ii)
1. 2. 3. 4. Age Both under 15 Both above 60 One under 15, the other above 60 Both over 15 and under 60; different sexes Both over 15 and under 60; same sex One under 15 or over 60, the other between those ages Presumed Survivor Older Younger One under 15 Male

5. 6.

Older One between 15 and 60

Note: Applicable only to two or more persons who perish in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred.

PERSONS & FAMILY RELATIONS

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

Complete respiration independent life

test/sign

of

Note: For a fetus that had an intra-uterine life of less than seven months, it is necessary that it lives for at least 24 hours, for it to be considered born.

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Chapter I. CIVIL PERSONALITY Article 39, Civil Code. The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law.

B. Juridical Persons
Juridical Persons (Art 44, Civil Code) 1. The State and its Political subdivisions; 2. Other Corporations, Institutions and Entities for public interest or purpose, created by law; 3. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. Governing Laws (Art 45, Civil Code)
Juridical Person 1. State Governed by Constitution (defines organization and limits rights vis--vis citizens) Charter creating them Charter creating them its its

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PERSONS & FAMILY RELATIONS

2. 3. 4. 5.

Political Subdivision Public Corporation Private Corporation Partnerships

General Rule: Incapacitated persons are not exempt from certain obligations arising from his acts or property relations. ________________ 1. Minority

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

RA 6809 (1989): An act lowering the age of majority from twenty-one to eighteen years. Effects on Contracts a. they cannot give consent to a contract [Art 1327 (1), CC] b. a contract where one of the parties is a minor is voidable [Art 1390(1),CC] c. a contract is unenforceable when both of the parties are minors (incapable of giving consent) [Art 1403(3), CC] d. minority cannot be asserted by the other party in an action for annulment (Art 1397, CC) e. not obliged to make restitution except insofar as he has been benefited (Art 1399, CC) f. minor has no right to demand the thing/price voluntarily returned by him (Art 1426, CC) g. minor has no right to recover voluntarily paid sum or delivered thing, if consumed in good faith (Art 1427, CC) h. must pay reasonable amount for necessaries delivered to him (Art 1489, CC)

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

II. Capacity to Act and Restrictions Thereon


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

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

Mercado v. Espiritu, (1918) Estoppel works against minors who misrepresent their ages in a contract and are compelled to comply with its terms. Bambalan v. Maramba, (1928)

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Chapter I. CIVIL PERSONALITY

Braganza v. Villa Abrille, (1959) Minors are obliged to make restitution insofar as they have been benefited (Art 1399) Effects on Marriage a. May not yet contract marriage (Art 5, FC) b. marriages, where one of the parties is below 18, even with the consent of parents/guardians, are VOID (Art 35, FC) 2. Insanity Insanity includes many forms of mental disease, either inherited or acquired. A person may not be insane but only mentally deficient (idiocy, imbecility, feeblemindedness). Effect on Contracts a. incapacity to give consent to a contract [Art 1327(2), CC] b. contracts entered into during lucid intervals are valid (Art. 1328, CC) c. restitution of benefits (Art 1399, CC) Effect on Crimes a. General rule: EXEMPTED from criminal liability b. Exception: acted during lucid interval Effect on Marriage a. may be annulled if either party was of unsound mind unless the such party after coming to reason, freely cohabited with the other [Art 45(2), FC] b. action for annulment of marriage must be filed by the sane spouse who had no knowledge of the others insanity; or by any relative/guardian of the insane; or by the insane spouse during a lucid interval or after regaining sanity [Art 47(2), FC]

4. Prodigality Martinez v. Martinez, (1902) A spendthrift or a prodigal is a person, who, by excessive drinking, gambling, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering. The acts of prodigality must show a morbid state of mind. Note: It is not the circumstance of prodigality, but the fact of being under guardianship that restricts capacity to act. 5. Civil Interdiction a. It is an accessory penalty imposed upon persons who are sentenced to a principal penalty not lower than reclusion temporal (article 41, Revised Penal Code). b. offender is deprived of rights of parental authority, or guardianship, of marital authority, of the right to manage his property and of the right to dispose of such (Art 34, RPC) c. for the validity of marriage settlements, the participation of the guardian shall be indispensible (Art 123, CC) 6. Family Relations a. justifying circumstance if acted in defense of person/rights of spouse, ascendants, descendants, brothers/sisters, and other relatives up th to the 4 civil degree [Art 11(2), RPC] b. mitigating circumstance if acted in the immediate vindication of a grave offense/felony committed against his spouse, ascendants or relatives of the same civil degree [Art 12(5), RPC] c. incestuous and void marriages: between ascendants and descendants of any degree; between brothers and sisters, whether full or half-blood. (Art 37, FC) d. donations/grants of gratuitous advantage between spouses during the marriage shall be VOID, except moderate gifts during family occasions (Art 87, FC)

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

PERSONS & FAMILY RELATIONS

When a minor made no active misrepresentation as to his minority and such minority is known to the other party, the contract is voidable (Art 1403) as to the minor.

c.

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

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Chapter I. CIVIL PERSONALITY

7. Absence
Article 390, Civil Code. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391, Civil Code. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; 2. A person in the armed forces who has taken part in war, and has been missing for four years; 3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

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

PERSONS & FAMILY RELATIONS

e. descendants cannot be compelled to testify in a criminal case, against his parents and grandparents UNLESS: crime was against the descendant OR by one parent against the other (Art 215, FC) f. spouses cannot sell property to each other, except: absolute separation is agreed upon in the marriage settlements judicial separation of property (Art 1490, CC)

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Chapter II. CITIZENSHIP AND DOMICILE

Chapter II. Citizenship and Domicile


(asked in 75, 81, 87, 93, 05 and 08 bar exams)
I. II. WHO ARE FILIPINO CITIZENS DOMICILE A. REQUISITES OF DOMICILE B. KINDS OF DOMICILE

B. Kinds of Domicile
1. Domicile of Origin Domicile of parents of a person at the time he was born. 2. Domicile of Choice Domicile chosen by a person, changing his domicile of origin. A 3rd requisite is necessary intention not to return to ones domicile as his permanent place. 3. Domicile by Operation of Law (i.e., Article 69, domicile of minor) Romualdez-Marcos vs. Comelec (1995) A married woman does not lose her domicile to her husband.

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PERSONS AND FAMILY RELATIONS

I.

Who are Filipinos

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

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

A. Requisites of Domicile (Callejo v. Vera)


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

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

Chapter III. Marriage


I. II. DEFINITION AND NATURE OF MARRIAGE REQUISITES OF MARRIAGE A. ESSENTIAL REQUISITES B. FORMAL REQUISITES III. MARRIAGES SOLEMNIZED ABROAD IV. PRESUMPTION OF MARRIAGE

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PERSONS AND FAMILY RELATIONS

I.

Definition and Nature of Marriage

(asked in 91, 92 and 99 bar exams) Definition of Marriage (Art 1 FC)


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

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

II. Requisites of Marriage


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

A. Essential Requisites of Marriage


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

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

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Chapter III. MARRIAGE

Absence and Requisites


Effect Illustration

Defect

of

Essential

Absence VOID - marriage entered into by a person <18 (Art 35 (1)) - marriage entered into by persons of the same sex (Jones v Hallahan) - marriage contracted through mistake of one contracting party as to the identity of the other (Art 35 (5))

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

Effect

Absence VOID

Illustration

B. Formal Requisites of Marriage


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

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

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

Marriage License 1. Marriages Exempt from marriage license requirement (AREC) a. Marriage in Articulo mortis (Art. 27, FC) b. Marriage in Remote and inaccessible places (Art. 28, FC) c. Marriages by Muslims and Ethnic cultural minorities provided they are solemnized in accordance with their customs, rites or practices. (Art. 33, FC) d. Marriage by parties who have Cohabited for at least 5 years without any legal impediment. (Art. 34, FC, Ninal v Badayog (2000)) 2. Absence & Irregularity of Marriage License
Effect Absence VOID Irregularity No effect on validity but party responsible will be liable. mere IRREGULARITIES in the marriage license, such as a

Illustration

Issuance of the Civil Registrar of a CERTIFICATE

PERSONS AND FAMILY RELATIONS

to avoid prosecution for rape is void for total lack of consent. The accused did not intend to be married. He merely used such marriage to escape criminal liability.

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

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CIVIL LAW REVIEWER Absence DUE SEARCH AND INABILITY TO FIND the application of a marriage license means its absence, thus rendering the marriage VOID. (Republic v CA) Before a marriage can be solemnized, a valid marriage license MUST FIRST BE PRESENTED, otherwise the marriage is VOID. (Moreno v Bernabe) Irregularity typographical error, do not affect the validity of a marriage. (Alcantara v Alcantara)

Chapter III. MARRIAGE

Note: In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2) 3. Places where marriage SHALL be solemnized: (CCO) a. Chambers of Judge or an open court b. Church, Chapel or Temple c. Office of the consul general, consul or vice consul (Art. 8, FC) Exception: a. Marriages in articulo mortis b. Marriages in remote places c. Written request from both parties.

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

III. Marriages Solemnized Abroad


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

IV. Presumption of Marriage


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

PERSONS AND FAMILY RELATIONS

a. Appearance of contracting parties personally before the solemnizing officer (Art 3 FC) b. Personal declaration that they take each other as husband and wife. (Art 3 FC) c. Presence of at least two witnesses of legal age. (Art 3 FC) d. The declaration shall be contained in the Marriage certificate. (Art 6 FC) e. Marriage certificate shall be Signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC)

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CIVIL LAW REVIEWER

Chapter III. MARRIAGE

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

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PERSONS AND FAMILY RELATIONS

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Chapter IV. VOID MARRIAGES

Chapter IV. Void Marriages


I. II. GROUNDS PERIOD TO FILE ACTION DEFENSE III. EFFECTS OF NULLITY OR RAISE

I.

Grounds

Art. 4(1): The absence of any essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (a). VOID AB INITIO MARRIAGES:

Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a condition sine qua non for proof of psychological incapacity. The root cause may be proven by the totality of evidence in actual trial. The incapacity must be proven to be existing at the time of the celebration of the marriage. d. Such incapacity must also be shown to be medically or clinically permanent or incurable. e. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. f. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. g. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. h. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory. Santos v. Bedia-Santos, (1995): Laid down 3 characteristics for determining psychological incapacity: gravity, antecedent, and incurability. Tsoi v. CA, (1997) Refusal of husband to have sex was interpreted to be PI. A man who can but wont is PI c.

A. Article 35 (Void from the Beginning)


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

B. Article 36 (Psychological Incapacity)


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

PERSONS AND FAMILY RELATIONS

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

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CIVIL LAW REVIEWER

Chapter IV. VOID MARRIAGES

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

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

D. Article 38 (Against Public Policy)


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

PERSONS AND FAMILY RELATIONS

Marcos vs. Marcos (2000) Psychological incapacity maybe established by the totality of the evidence presented. Personal medical examination could be dispensed with. Republic vs. San Jose (2007) There is no requirement that the respondent be medically examined first. Antonio v. Reyes, (2006): pathological liar, Molina guidelines met.

E. Article 41 (Bigamous Marriages, Absentee Spouse and Presumptive Death)

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

Chapter IV. VOID MARRIAGES

Atienza v. Brillantes, (243 SCRA 32) A judges first marriage contracted in 1965 was void for not having a marriage license, but the requirement for a judicial declaration of nullity in Art. 40 applies for his subsequent marriage contracted in 1991. Apiag v. Cantero, (1997) Where both marriages were contracted prior to the effectivity of the FC, the requirement of Art. 40 does not apply to the second marriage where a right is already vested and which the FC cannot have retroactive effect. Judicial declaration of nullity of a marriage is now an absolute requirement: a. For the validity of any subsequent marriage b. For the subsequent marriage not to be considered as bigamous Domingo v. CA, (1993) The judicial declaration of nullity can be invoked for purposes other than remarriage. Article 40 was interpreted as being a requirement for purposes of remarriage but not limited for that purpose. Separation of property is also a valid purpose for filing for a judicial declaration of nullity. Borja-Manzano v. Sanchez, (2001) Legal separation does not severe marital bonds. Cohabitation under Art. 34 merely exempts the spouses from obtaining a marriage license, and is not met when there exists legal impediment to marry during the period of cohabitation.

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

F. Article 44 (Present spouse contracts marriage in bad faith)

who

Both spouses of a subsequent marriage acted in bad faith in case where a previous spouse was an absentee

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

H. Article 40 Nullity)

(Judicial

Declaration

of

Art. 40, Civil Code. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

II. Period to Defense

File

Action

or

Raise

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

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (as amended by R.A. 8533) The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after

PERSONS AND FAMILY RELATIONS

Terre v. Terre, (1998) A lawyer was disbarred for grossly immoral conduct by convincing the other party that a judicial declaration of nullity was not required and subsequently contracting another marriage while his first marriage was subsisting.

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Chapter IV. VOID MARRIAGES

III. Effects of Nullity


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

3. In the partition, the conjugal dwelling and lot shall be adjudicated to the spouse with whom majority of the common children remain (Art. 102 and 129) [Art. 50(4)] 4. Presumptive legitimes, computed as of the date of the final judgment, shall be delivered in cash, property or sound securities a. unless the parties, by mutual agreement judicially approved, had already provided for such [Art. 51(1)] b. the children/guardian/trustee may ask for the enforcement of the judgment [Art. 51(2)] c. the delivery of the presumptive legitimes shall not prejudice the ultimate successional rights, but the value of the properties already received shall be considered as advances on their legitime [Art. 51(3)] 5. Either of the former spouses may marry again AFTER compliance with the requirements of Article 52, otherwise, the subsequent marriage is void (Art. 53) Requirement (Art. 52) recording in the appropriate civil registry AND registries of property: a. judgment of annulment/absolute nullity of marriage b. partition and distribution of the properties of the spouses c. delivery of the childrens presumptive legitimes otherwise, these shall not affect third persons

PERSONS AND FAMILY RELATIONS

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

Effects of Other Void Marriages 1. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45 [Art. 50(1)] 2. Final judgment in such cases shall provide for the liquidation, partition, and distribution of the: a. properties of the spouses b. custody and support of the common children c. delivery of their presumptive legitimes unless such matters had been adjudicated in previous judicial proceedings [Art. 50(2)] all creditors (of the spouses/property regime) shall be notified of the proceedings for liquidation [Art. 50(2 and 3)]

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Chapter IV. VOID MARRIAGES

Void marriages can be attacked collaterally and do not prescribe De Castro v. Assidao-de Castro, (2008) Validity of marriage was attacked collaterally in an action for support for determining legitimacy of the child.

PERSONS AND FAMILY RELATIONS

6. Generally, children born or conceived within void marriages are illegitimate. Exception: children conceived or born before the judgment under Article 36 has become final and executory children conceived or born of subsequent marriages under Article 53 Nial v. Badayog, (2000) Children of first marriage assailed the validity of the second marriage contracted by their father without a marriage license and after the latters death.

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Chapter V. VOIDABLE MARRIAGES

Chapter V. Voidable Marriages


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

consummating the marriage (impotence; this is different from sterility). S 6. Either party has a serious and incurable sexually-transmissible disease, even if not concealed.*

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PERSONS AND FAMILY RELATIONS

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

A. Grounds for Annulment explained:


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

I.

Grounds for Annulment (Art. 45, FC)

Marriage may be annulled on the ff grounds existing at time of marriage: P I F F I S P 1. One of the parties is 18 or above but below 21, and there is no parental consent. 2. Either party was of unsound mind (insanity). 3. The consent of either party was obtained through fraud (different from mistake in identity): a. through non-disclosure of a previous conviction of a crime involving moral turpitude; b. through concealment by the wife of the fact at the time of the marriage that she was pregnant by another man; c. through concealment of a sexually-transmitted disease, regardless of its nature, existing at the time of marriage; d. through concealment of drug addiction, habitual alcoholism or homosexuality/lesbianism. (Art.46, FC) 4. The consent of either party was obtained through force, intimidation, or undue influence. 5. Either party is physically incapable of

CIVIL LAW REVIEWER

Chapter V. VOIDABLE MARRIAGES

b. No other misrepresentation or deceit of CHARACTER, HEALTH, RANK, FORTUNE OR CHASTITY shall constitute FRAUD c. TOLENTINO: fraud must relate to fact material to the marital relation; PRINCIPLE OF ENUMERATION; no other cases of fraud can be ground for annulment; INCLUSIO UNIUS EST EXCLUSIO ALTERIUS d. Conviction of Crime: requisites are moral turpitude conviction e. Concealment of Pregnancy fraud against very essence of marriage; importance of procreation of children; an assault to the integrity of the union by introducing ALIEN BLOOD If husband knew of pregnancy, the marriage cannot be annulled on the ground of concealment. Three (3) months after the celebration of the marriage, a baby was born. Annulment was refused because of advanced stage of pregnancy, which must be patent to the husband (Buccat v Mangonon) If there was coitus before marriage & wife was pregnant at time of marriage although he may not be the father, marriage cannot be annulled because man knows wife is unchaste. Principle: one cannot go to court with unclean hands. Prof. Balane: An isolated case and is not doctrinal. f. Marriage cannot be annulled on ground that wife concealed the fact that she had been lewd & corrupt and had illegitimate child (Shrady v Logan) g. Maybe ratified upon cohabitation after knowledge of fraud Buccat v Buccat, 72 Phil. 19 Wife gave birth 3 months after marriage celebration. Husband filed for annulment. Ground: concealment of non-virginity. Court held that it was unbelievable that wife could have concealed 6 months of pregnancy. Aquino v Delizo, 109 Phil. 21 The Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was naturally plump, Aquino could hardly be expected to know, by

mere looking, whether or not she was pregnant at the time of the marriage. Almelor v. RTC, (2008) It is the concealment of homosexuality, and not homosexuality per se, that vitiates the consent of the innocent party. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage. Corpuz v. Ochoterena, (2004) In a legal separation or annulment case, the prosecuting attorney must first rule out collusion as a condition sine qua non for further proceedings. A certification by the prosecutor that he was present during the hearing and even crossexamined the plaintiff does not suffice to comply with the mandatory requirement. STD: Art. 45 vs. Art. 46
Art. 46 STD The STD is a type of fraud which is a ground for annulment Must be concealed Need not be serious nor incurable It is the concealment that gives rise to the annulment

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PERSONS AND FAMILY RELATIONS

Art. 45 STD Ground for annulment

Does not have to be concealed Must be serious and incurable The STD itself is the ground for annulment

Effect of Cure to Fraud in Art. 46: Recovery or rehabilitation from STD, drug addiction, and habitual alcoholism will NOT BAR ACTION for annulment; defect: not the disease, but the FRAUD which VITIATED CONSENT

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

CIVIL LAW REVIEWER

Chapter V. VOIDABLE MARRIAGES

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

m.

n.

o.

p.

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

20
PERSONS AND FAMILY RELATIONS

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

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Chapter V. VOIDABLE MARRIAGES

B. Who may File, Prescription, Ratification


Ground (Art. 45) Lack of parental consent Who can file (Art. 47) 1. Underage party 2. Parent or guardian Insanity 1. Sane spouse with no knowledge of the others insanity 2. Legal guardian of insane party 3. Insane party Prescription (Art. 47) 1. 5 years after attaining 21. 2. Before child reaches 21. 1. Any time before the death of either party Ratification (Art. 45) Free cohabitation after attaining age of 21.

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PERSONS AND FAMILY RELATIONS

Free cohabitation of insane party after insane party comes to reason

Fraud

Injured party (defrauded party) Injured party

2. During lucid interval or after regaining sanity, and before death Five years after discovery of fraud Five years after disappearance of force or intimidation Five years after marriage Five years after marriage

Force, intimidation, undue influence Impotence STD

Healthy party Healthy party

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

C. Marriages Not Subject Ratification/Convalidation

to

B. Effect of Reappearance of Absent Spouse:


General Rule The subsequent marriage remains valid. Exception It is automatically terminated by the recording of the affidavit of reappearance of the absent spouse. Exception to the Exception If there is a judgment annulling the previous marriage or declaring it void ab initio. (Art. 42, FC) TOLENTINO Status of Subsequent Marriage: generally considered bigamous & void EXCEPT par. 2 of this article; good faith w/o falling under par. 2 will render marriage VOID When Voidable: must act in GOOD FAITH and 1. absent spouse not heard from 7 consecutive yrs 2. although absent for less than 7 yrs, generally considered dead 3. presumed to be dead after 4 yrs when occurrence of death in A391 Judicial Declaration Unnecessary: purpose of validity of marriage, missing spouse need not be judicially declared an absentee, enough required

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

II. Marriage When One Spouse Absent


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

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Chapter V. VOIDABLE MARRIAGES

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

Difference between Absence in the Civil Code and Family Code


Family Code As to period 4 years under normal circumstances; 2 years under special circumstances Civil Code Absent for at least 7 years; 4 years under special circumstances

As to In order to remarry, Declaration of remarriage summary presumptive death proceeding is is not necessary necessary As to who can institute the action Can be instituted by The spouses the present spouse, themselves any interested party, and the subsequent spouse Upon reappearance, judicial proceeding is necessary to declare marriage null and void

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

Well founded belief Generally believed that the absent to be dead spouse is dead

III. Effects of Pending (Art. 49, FC)

Actions/Decree

(includes earthquakes, fires, explosions, dangerous

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

PERSONS AND FAMILY RELATIONS

period elapsed from time the absentee was last heard not from judicial declaration. After 7 years, presumptive death arises w/o need for judicial declaration

expeditions, landslides, volcanic eruptions)


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

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Chapter V. VOIDABLE MARRIAGES

Art. 363 (CC): No child under 7 years shall be separated from the mother unless there is a compelling reason to do so.

IV. Voidable v. Void Marriage


Voidable Marriage VALID until annulled by court CAN be convalidated by prescription or free cohabitation ACP exists unless another system is instituted through marriage settlement Children are LEGITIMATE if conceived before decree of annulment Void Marriage INEXISTENT from the beginning CANNOT be convalidated No Community Property, only Coownership General rule: Children are ILLEGITIMATE (Art. 165, FC) Exception: In void marriages by reason of psychological incapacity (Art. 36) or non-partition of properties in a previous marriage (Art. 53), children are considered LEGITIMATE May be attacked DIRECTLY or COLLATERALLY, except for purpose of remarriage (there must be Judicial Declaration of Nullity) May still be impugned after death of parties

Nature Convalidation Effect on property

Legitimacy of children

How to impugn

Can only be DIRECTLY (there Annulment Decree)

attacked must be

Effect of death of parties

Can no longer be impugned after death of parties

V. Voidable v. Legal Separation


Voidable Marriage ground for annulment at the time of marriage terminates marital bond once final, cannot be set aside to restore marital relation Legal Separation causes after the celebration of marriage does not terminate marital bond marital relations can resume upon reconciliation

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

PERSONS AND FAMILY RELATIONS

Art. 48 (FC): To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State.

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

Chapter VI. Legal Separation, Divorce and De Facto Separation


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

c.

6. Lesbianism or homosexuality of respondent. Same as rules on drug addiction 7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad. 8. Sexual infidelity or perversion. a. No conviction is required. 9. Attempt on the life of petitioner by respondent. a. There is no need for criminal conviction. Only a preponderance of evidence is required. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year.

I.

Grounds for Legal Separation

(asked in 75, 76, 79, 80, 82, 89, 94, 96, 97, 02, 03, 06, and 07 bar exams) (Art. 55, FC) [V A P I D H B I L A] Note: The grounds for legal separation are exclusive. V 1. Repeated physical violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement. 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party). 5. Drug addiction or habitual alcoholism of respondent. a. When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. b. When it occurred only after the marriage, it is only a ground for

People v. Zapata and Bondoc, 88 Phil 688 (1951) Adultery is not a continuing crime, but is consummated and exhausted at the moment of carnal union. As such, every sexual act is a ground for legal separation. Gandioco v Pearanda, 155 SCRA 725 (1989) In sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage. Lapuz Sy v. Eufemio, 43 SCRA 177 (1972) The death of one party in a legal separation case abates the action. This is because the death of either spouse automatically dissolves the marriage. An action for legal separation is also purely personal between the spouses. Dela Cruz. v. Dela Cruz 22 SCRA 333 Abandonment is not mere physical estrangement but also financial and moral desertion. There must be an absolute cessation of marital relations, duties, and rights with the intention of perpetual separation.

PERSONS AND FAMILY RELATIONS

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

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

II. Defenses
Grounds for denying legal separation (Art. 56, FC) [4CMPRD] 1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense 3. Connivance between parties in the commission of the offense 4. Mutual guilt or Recrimination between spouses in the commission of any ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation (Art. 57: 5 years from occurrence of the cause of action) 7. Reconciliation of parties during pendency of action (Art. 66 par.1) 8. Death of either party during pendency of action (Lapuz-Sy v Eufemio, supra) Bugayong v. Ginez, 100 Phil. 616 (1956) Continued cohabitation despite full knowledge of the spouses infidelity constitutes implied condonation.

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

IV. Effects of Filing Petition for Legal Separation (LAC)


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

III. When to File/Try Actions


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

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

V. Effects of Decree Separation (LACIDIMS)

for

Legal

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

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

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

PERSONS AND FAMILY RELATIONS

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

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

Art. 26(2), Civil Code. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippines law.

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

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

Valid Foreign Divorce a. valid marriage between a Filipino citizen and a foreigner b. divorce is validly obtained by the alien spouse c. alien spouse becomes capacitated to remarry Result: the Filipino spouse shall likewise have the capacity to remarry under Philippine law Van Dorn v. Romillo, 139 SCRA 139 (1985) Before the effectivity of the FC, the SC applied Article 15 of the CC, from the foreigners perspective, to decree the validity of a divorce with respect to the Filipino spouse to prevent the unjust result to the Filipino spouse as the alien spouse is already capacitated to remarry. Quita v. Dandan, 300 SCRA 406 (1998) The time of obtaining foreign citizenship is necessary to determine the validity of divorce obtained by the spouse who applied for foreign citizenship. It must be ascertained that when that spouse obtained the divorce, he/she was no longer bound by Philippine domestic law Llorente v. CA, 345 SCRA 592 (2000) nd A 2 marriage obtained by a Filipino who is already a US citizen at the time of the nd divorce and the remarriage makes the 2 marriage completely valid. Garcia v. Recio, 366 SCRA 437 (2001) Philippine courts do not take cognizance of foreign laws. The foreign law granting divorce as well as the nature of the divorce granted (w/n it was absolute) must be proven. Republic vs. Orbecido, (2005) The period of reckoning to determine citizenship for the purpose of the application of Art.26 par.2 is the time of securing a divorce.

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

The Nationality Theory of Jurisdiction / Nationality Principle applies to personal rights.

PERSONS AND FAMILY RELATIONS

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

Effect: Filipinos living abroad could not obtain a valid divorce even in countries where divorce is legally permissible.

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CIVIL LAW REVIEWER

Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION 2. Judicial authorization may be obtained when the consent of one spouse is required by law for any transaction of the other (subject to Art. 239), and 3. The separate property of both spouses shall be solidarily liable for the support of the family in the absence of sufficient community property. The spouse present shall be given judicial authority to administer or encumber any specific separate property of the absent spouse and use the fruits thereof to satisfy the latters share. Art. 127. Same rules as above, but for Conjugal Partnership of Gains Procedural Rules for Art. 100/127, par. 2: 1. In the case of Art 100/127 par. 2, a verified petition may be filed in court, attaching the proposed deed or description of the transaction and the reason why the other spouses consent has not been secured. (Art. 239) 2. Court shall issue a notice for the initial conference and shall notify the other spouse to show cause why petition should not be granted. (Art. 242) 3. If the petition is not resolved at the initial conference, then the court shall decide in a summary hearing. (Art. 246) 4. Its decision shall be final and executory. (Art. 247)

Muslim Divorces Presidential Decree 1083 (Code of Muslim Personal Laws) 7 forms of Muslim divorces (Art. 45) (TFKILTZ) a. talaq- repudiation of the wife by the husband b. ila- vow of continence by the husband c. zihar- injurious assimilation of the wife by the husband d. lian- acts of imprecation e. khul- redemption by the wife f. tafwid- exercise by the wife of the delegated right to repudiate g. faskh- judicial decree Grounds for faskh (Art. 52) a. The marriage bond shall be severed and the spouses may contract another marriage b. The spouses shall lose their mutual rights of inheritance c. The custody of children shall be determined in accordance with Article 78 of the code d. The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or onehalf thereof if effected before its consummation e. The husband shall not be discharged from his obligation to give support in accordance with Article 67 f. The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated. Yasin v. Sharia District Ct, 241 SCRA 606 (1995) A Muslim divorce dissolves the marital bond and therefore a woman may use her maiden name and surname without any special proceeding in court.

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PERSONS AND FAMILY RELATIONS

Perez v. CA, 255 SCRA 661 (1996) Applicability of the tender years presumption of Art. 213 (No child under 7 years of age shall be separated from the mother) to de facto separation, save for compelling reasons such as neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of child, insanity, communicable disease.

VIII.

De Facto Separation

Rules applicable to De Facto Separation


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

CIVIL LAW REVIEWER

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

Chapter VII. Rights and Obligations Between Husband and Wife


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

consent (Art. 73 [Omission corrected on Nov. 8, 1968])

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PERSONS AND FAMILY RELATIONS

III. Use of Surname


Married Women: (Art. 370, CC) A married woman may use: a. Her maiden first name and surname and add her husband's surname, or b. Her maiden first name and her husband's surname or c. Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. Yasin v. Sharia District Court, (1995) The woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. Moreover, when her husband dies, the woman can revert to her old name without need for judicial declaration. Widows A widow may use the deceased husbands surname as though he were still living. (Art. 373, CC) Mistresses The Supreme Court allowed the mistress to use her live-in partners name, since everyone already knew that she was a mistress, so as to avoid confusion. (Legamia v. IAC (1984)) Divorcees The Supreme Court allowed the mistress to use her live-in partners name, since everyone already knew that she was a mistress, so as to avoid confusion. (Tolentino v. CA (1988))

I.

Obligations of Spouses (Arts. 68-71, FC)


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

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


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

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

Chapter VIII. Property Relations Between Spouses


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

settlement applies to all Filipinos, regardless of the place of the marriage and their residence. Exceptions 1. Where both spouses are aliens 2. As to the extrinsic validity of contracts 3. Contrary stipulation Requirements for Marriage Settlements (Art. 77, FC) (WiSER) 1. Must be in writing (public or private) 2. Signed by the parties 3. Executed before the celebration of the marriage 4. Must be registered in local civil registry to affect third persons (If not registered, will not prejudice third persons, ACP will apply) 5. If party needs parental consent (age 18-21), parent/guardian must be a party to the settlement (Art. 78) 6. If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party (Art. 79) General Rule: All modifications to the marriage settlement must be made before the marriage is celebrated. (Art. 76) Exceptions: Legal Separation (Art. 63 (2), FC) o The property regime is dissolved. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2)) A spouse may petition the court for: o Receivership o Judicial separation of property, or o The authority to be the sole administrator of the conjugal partnership If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128) Judicial Dissolution (Arts. 135 and 136) Furthermore: Marriage settlements are considered ACCESSORY to the marriage Stipulations in consideration of future marriage and donations will be void if the marriage does NOT take place. (Art. 81, FC)

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PERSONS AND FAMILY RELATIONS

I.

General Provisions

(asked in 76, 86, 91, 92, 94, 95, 96, 97 and 05 bar exams) Order to be followed (Arts. 74, 75, FC) 1. Marriage settlements before marriage spouses can agree to whatever regime they want (ACP, CPG, complete separation or any other property regime to be agreed upon prior to the celebration of the marriage). 2. Family Code If there are no marriage settlements, or if the regime agreed upon is void, the Absolute Community of Property will be followed 3. Local Customs General Rule (Art. 80, FC) Property relations between Filipino spouses are governed by Philippine laws, regardless of the place of marriage and their residence (Nationality Rule- Art 15, NCC). Hence The rule that ACP is the default mode of property relations absent any marriage

CIVIL LAW REVIEWER

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES DONATIONS PROPTER NUPTIAS May be made by minors (Art. 78) May include future property If present property is donated and property is not absolute community, limited to 1/5 (Art. 84) Grounds for revocation In Art. 86 ORDINARY DONATIONS Cannot be made by minors Cannot include future property No limit to donation of present property provided legitimes are not impaired Grounds for revocation in donation laws

II. Donations by Reason of Marriage


Requisites of donations propter nuptias: (Art. 82, FC) a) Made before the celebration of marriage. b) Made in consideration of the marriage. c) In favor of one or both spouses. d) The donor must be one of the betrothed or any third person Donations excluded 1. Ordinary wedding gifts given after the celebration of the marriage 2. Donations in favor of future spouses made before marriage but not in consideration thereof 3. Donations made in favor of persons other than the spouses even if founded on the intended marriage Who may donate 1. Spouses to each other 2. Parents of one or both spouses rd 3. 3 persons to either or both spouses Moreover, in donations propter nuptias, the marriage is really a consideration but not in the sense of giving birth to the obligation. There can be a valid donation even if the marriage never took place. However, the absence of marriage is a ground for the revocation of the donation. (Solis v. Barroso, (1928)) Donations propter nuptias are without onerous consideration, marriage being merely the occasion or motive for the donation, not its cause. Being liberalities, they remain subject to reduction for inofficiousness upon the donors death, if they should infringe the legitime of a forced heir. (Mateo v. Lagua, (1969))

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PERSONS AND FAMILY RELATIONS

Rules 1. Before Marriage General Rule: Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84, FC) Exception: If they are governed by ACP 2. During Marriage General Rule: Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87, FC) Exception: Moderate gifts on the occasion of any family rejoicing. Matabuena v Cervantes, (1971) The donation between common-law spouses falls within the provision prohibiting donations between spouses during marriage. Harding v. Commercial Union, (1918) The prohibition on donations can only be assailed by persons who bear such relation to the parties or the property itself, that their rights are being interfered with. Here, the insurance company of the donated car cannot assail the validity of the donation. In addition, the codal exception of moderate gifts depends on the income class of the spouses and a car could be considered a moderate gift that does not infringe the prohibition of donation between spouses. Sumbad v. CA, (1999) The donation made by a man to a woman was held valid because no proof was shown that they were still living in a common-law relationship at the time of the donation. Subject to

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

Donation of Property Encumbrances

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

Supplementary Rules to Follow Co-ownership (Art. 90, FC)

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

B. What Constitutes Community Property


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

III. Absolute Community of Property


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

C. Charges Upon the ACP (Art. 94, FC) (4 debts, 2 taxes, 2 expenses, support, donation)
(asked in 76 bar exam) 1. Support Spouses Even if not living together except when a spouse leaves conjugal home without just cause Even during pendency of action for legal separation or annulment of marriage Common children Legitimate children of previous marriage

PERSONS AND FAMILY RELATIONS

1. Are considered valid. 2. In case of foreclosure a. if property value < obligation, donee shall not be liable b. if property value > obligation, donee shall be entitled to the excess (Art. 85, FC)

c.

When the marriage is dissolved (by death of one of the spouses) d. When the marriage is annulled

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

2.

3.

4. 5.

6. 7.

8.

9.

10.

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

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

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PERSONS AND FAMILY RELATIONS

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

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

D. Administration, Ownership Disposition of ACP

and

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

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

3. 4. 5.

6.

Abandonment (Art. 101, FC) Present spouse may petition the court for: 1. receivership; 2. judicial separation of property; or 3. authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose. Spouse is prima facie considered to have abandoned the other spouse and the family if: 1. he/she has left for a period of three months, 2. he/she has failed to inform his/her whereabouts for a period of three months.

F. Liquidation of Assets and Liabilities


(asked in 89 and 99) Process of liquidation of ACP (Art. 102, FC) 1. Inventory of assets of ACP and of spouses, with market values. 2. Obligations are paid with community property, and separate obligations not charged to ACP paid by respective assets of spouses. a. If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after the separate properties of the spouses, which are solidarily liable for the deficiency. 3. Delivery of whatever exclusive property. remains in their

Rules in Case of Termination of Marriage by Death of One of the Spouses (Art. 103, FC) 1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse. a. If no liquidation is made within the period, any disposition or encumbrance involving community property of the terminated marriage shall be void. b. Non-compliance with liquidation procedures would mean that a subsequently contracted marriage will follow a regime of complete separation of property. Procedure for Liquidation of Community Properties of Two Marriages (Art. 104, FC) 1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each. Onas v. Javillo, (1934) Javillo contracted 2 marriages. SC ruled that each absolute community should be considered owner of the parcels of land acquired during its existence. Death discontinues ACP. Vda. De Delizo v. Delizo, (1976 In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each.

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

PERSONS AND FAMILY RELATIONS

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

the provisions of law on forfeitures and delivery of presumptive legitimes. 6. After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

IV. Conjugal Partnership of Gains


(Asked in 79 bar exam) CPG Exists with the mere fact of marriage Predetermined by legislator, the law fixing its conditions. Divided equally between spouses, irrespective of the amount of capital that they bring into marriage No equality between spouses in control, management, and disposition, because the law grants the husband some predominance. No juridical personality At precise moment of celebration of marriage By law Not particularly for profit Death, legal separation, annulment, JDN, judicial separation of property Dissolution of partnership Only upon dissolution Joint; in case of disagreement, the husbands decision shall prevail, wife has recourse to courts CPG Each spouse retains his/her property; only fruits part of conjugal property Part of conjugal property Separate properties are returned; net profits divided between spouses or heirs Capital and properties of spouses kept separate and distinct from benefits; insurmountable obstacle to presumption of solidarity Exclusive properties will have to be identified and returned, and sometimes, identification is difficult. Ordinary partnership Comes into existence according to agreement between parties Determined by will of partners.

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PERSONS AND FAMILY RELATIONS

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

and

Depends upon respective capitals of partners, or upon their agreement General rule is that all partners have equal rights in administration, management, and control of partnership. Considered a juridical person At the time agreed upon by partners By agreement of parties; subsidiarily, by law For profit Death, insolvency, civil interdiction, termination of term, express will of any partner, etc. (Arts 1830-1931) Surviving partners may choose to continue partnership There can be division of profits without dissolution Same as individual partners, except when one or more partners designated as managers. ACP Properties become part of community property Becomes community property Net remainder of ACP divided equally between spouses or heirs Mutual trust and confidence between spouses; fosters oneness of spouses

4. Equality

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

for

10. Effect of death of a partner 11. Division of properties 12. Management

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

5. Liquidation

Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs.

A. Where It Applies (Art. 105)


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

Note: CPG begins at the precise moment the marriage celebrated (Art 107)

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

B. Husband and Wife Place in Common Fund (PIPF-EC) (Art. 106)


1. The proceeds, products, fruits, and income of their separate properties; 2. Everything acquired by them within marriage through their own efforts; 3. Everything acquired by them by chance

C. Exclusive Properties of the Spouses


1. Art 109
Directly acquired or originally exclusive Property by substitution

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

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

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

2. Other Separate Property: (CSI) a. Collection of credits belonging to one spouse exclusively but the interests shall belong to the CPG (Art 119) b. Sale of separate property of a spouse c. Indemnity paid in case of expropriation of separate property or under an insurance policy covering separate property. Spouses retain the ownership, possession, administration and enjoyment of their exclusive properties (Art 110, par 1.) Possession by one spouse of the separate property the other spouse does not affect ownership Transfer of administration of a spouses exclusive property to the other spouse must be made in a public instrument recorded in the registry of property of the place where the property is located (Art 110, FC) but ownership is not conferred to the administrator spouse (Rodriguez v. de la Cruz, 1907).

D. What Constitutes the CPG (Art. 117)


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

PERSONS AND FAMILY RELATIONS

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

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CIVIL LAW REVIEWER

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

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

F. Charges upon CPG


(asked in 87 and 04 bar exams)
Art. 121, Family Code. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support;* (2) All debts and obligations contracted during the marriage by the designated administratorspouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; * (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; (4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property; * (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement; * (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement;* and (9) Expenses of litigation between the spouses unless the suit is found to groundless.: If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

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PERSONS AND FAMILY RELATIONS

* Same as the rule governing ACP Categorization of CPG Charges (Pangalangan notes)
Debts & Obligations (2) Debts incurred: (a) by administratorspouse for the benefit of the family; (b) by both spouses; (c) by one spouse with the consent of the other (3) by one spouse without the consent of the other for the Taxes & Expenses (4) maintenance of CPG properties Support (1) support of spouses and common children

(5) mere preservation of all exclusive

(6) education of spouses, absolute

CIVIL LAW REVIEWER benefit of the family (7) antenuptial debts for the benefit of the Family Properties (9) litigation expenses, unless the suit is groundless (8) education of common children, only for value of donation

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

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

H. Dissolution of the CPG


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

G. Administration of the CPG


(asked in 75, 77, 02 and 06 bar exams) 1. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within 5 years from the date of the contract implementing such decision (Art. 124, par.1). Sale by the husband of property belonging to the conjugal partnership without the consent of the wife when there is no showing that the latter is incapacitated is void ab initio. (Abalos v. Macatangay, Jr, 2004) 2. Disposition or encumbrance of conjugal property requires: (Art. 124, par. 2) a. The consent or approval by both spouses; OR b. Judicial authority secured in court Donation of CPG must be with the consent of the other spouse except moderate donations for charity, on occasions of family rejoicing, or family distress (Art 125, cf. Art 98) Mere awareness of a transaction is NOT consent (Jader-Manalo v. Camaisa, 2002)

I.

Liquidation of Assets and Liabilities


(asked in 87 and 89 bar exams)

1. Procedure (Art. 129) IAR-DRIN-PC a. Prepare an inventory of all properties b. Amounts advanced by CPG in payment of personal debts and obligations shall be credited to CPG c. Reimburse each spouse for the use of his/her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. d. Debts and obligations of CPG shall be paid out of the conjugal assets, otherwise both spouses are solidarily liable with their exclusive property. e. Remains of the exclusive properties shall be delivered to respective ownerspouses

PERSONS AND FAMILY RELATIONS

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

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Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

f.

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

V. Separation Marriage

of

Properties

During

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PERSONS AND FAMILY RELATIONS

Art. 134, Family Code. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause.

Judicial separation of property may either be (1) voluntary or (2) for sufficient cause.

A. Sufficient Causes and Grounds for Return to Previous Regime


Sufficient Causes for Judicial Separation of Property (Art. 135) (CALASA) (1) Spouse of petitioner has been sentenced to a penalty which carries with it civil interdiction (2) Spouse of petitioner is judicially declared an absentee (3) Loss of parental authority of the spouse of petitioner has been decreed by the court (4) Spouse of petitioner has abandoned the latter or failed to comply with his or her obligations to the family (5) The spouse granted the power of administration in the marriage settlements has abused that power Grounds for Return to Previous Regime (Art. 141) (1) Termination of the civil interdiction

(2)

Reappearance absentee spouse

of

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

(6) At the time of the petition, the spouses have been separated in fact for at least 1 year and reconciliation is highly improbable.

(7) When after voluntary dissolution of the ACP or CPG has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property

CIVIL LAW REVIEWER regime. No voluntary separation of property may thereafter be granted.

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES

4. rights previously acquired by creditors are not prejudiced (Art. 140)

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PERSONS AND FAMILY RELATIONS

B. Rules
1. Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146 par. 1) 2. Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2) Abandonment is defined as the lack of intention to return to the conjugal home, without justifiable cause (Dela Cruz v. Dela Cruz)

D. Transfer of Administration to the Other Spouse (Art. 142) (GACA)


When one spouse. 1. Becomes the guardian of the other. 2. Is judicially declared an absentee. 3. Is sentenced to a penalty which carries with it civil interdiction. 4. Becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. In Re: voluntary dissolution of CPG of spouses Bernas, 14 SCRA 237 A voluntary separation of properties is not perfected by mere consent but upon the decree of the court approving the same. The petition for voluntary separation of property st was denied because the children of the 1 nd and 2 marriages were not informed; the separation of property may prejudice the rights and shares of the children. Maquilan v. Maquilan, (2007) A compromise agreement with judicial recognition is valid, pending petition for declaration of nullity of marriage.

C. Effects of separation between spouses

of

property

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

VI. Property regime of unions without marriage


(asked in 79, 87, 98, 00 and 09 bar exams)
Art. 147
When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on coownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)

Art. 148

In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

CIVIL LAW REVIEWER

Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES Art.147 1. man and woman 2. living together as husband and wife 3. with capacity to marry (Art.5 without any legal impediment) a. at least 18 years old b. not Art. 37 (incestuous void marriage) c. not Art. 38 (void marriage by reason of public policy) d. not bigamous 4. other void marriages due to absence of formal requisite Owned in equal shares Remains exclusive provided there is proof Art.148 1. 2. 3. 4. 5. 6. 7. man and woman living together as husband and wife NOT capacitated to marry (Art.35(1) under 18 years old) adulterous relationship (e.g. concubinage) bigamous/polygamous marriage (Art.35(4)) incestuous marriages under Art.37 Void marriages by reason of public policy under Art.38

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PERSONS AND FAMILY RELATIONS

Applicability

Salaries and wages Properties acquired through exclusive funds Properties acquired by both through work or industry

Separately owned by parties Remains exclusive Owned in common in respective contribution proportion to

Governed by rules on co-ownership Owned in equal shares since it is presumed to have been acquired through joint efforts if one party did not participate in acquisition, presumed to have contributed through care and maintenance of family and household

Properties acquired while living together

No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing If one party is validly married to another his/her share in the co-owned properties will accrue to the ACP/CPG of his/her existing valid marriage If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147 The same rules on forfeiture shall apply if both parties are in bad faith

Forfeiture

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

Yaptinchay v. Torres, (1969) Application of Article 148; there was no proof of actual contribution, while there was a subsisting marriage apart from the union without marriage, therefore, the N. Forbes house goes to the CPG of subsisting marriage Juaniza v. Jose, (1979) Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the marriage, and the other party cannot be held jointly/severally liable for it Villanueva v. CA, (2004) Transfer of certificate and tax declarations are not sufficient proof of joint contribution.

Joaquino v. Reyes (2004) Prohibitions against donations between spouses must likewise apply to donations between persons living together in illicit relations;

CIVIL LAW REVIEWER

Chapter IX. The FAMILY and the FAMILY HOME

Chapter IX. The Family and the Family Home


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

stranger takes the case out of the ambit of FC 151.

41
PERSONS AND FAMILY RELATIONS

II. Family Home


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

II.

I.

Family

(asked in 91 bar exam) Basic social institution which public policy cherishes and protects hence, no suit between members of the family shall prosper unless compromise between parties has failed.

A. Family relations include:


1. 2. 3. 4. Between husband and wife Between parents and children Among other ascendants and descendants Among brothers and sisters, full or half blood.

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

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

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

C. Exceptions (VJLAFF)
1. 2. 3. 4. 5. 6.

to

the

general

rule C. Beneficiaries of the family home (Art. 154)


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

Civil status of persons, Validity of marriage or a legal separation, Any ground for legal separation, Future support, Jurisdiction of courts, Future legitime Hontiveros v. RTC, (1999) Whenever a stranger is a party in a case involving family members, the requisite showing of earnest efforts to compromise is no longer mandatory, as such inclusion of a

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CIVIL LAW REVIEWER

Chapter IX. The FAMILY and the FAMILY HOME

3. They are dependent for legal support on the head of the family Requirements for the sale, alienation, donation, assignment, or encumbrance of the family home 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age Note: If there is a conflict, the Court will decide.

Patricio v. Dario III, (2006) WON the grandson of the deceased is a beneficiary according to Art. 154 FC. The beneficiary should satisfy all requisites; he must be dependent on the head of the family. Arriola v. Arriola, (2008) This case involves half brothers and a second wife; the family home includes the land it is built on. The rule in Art. 159 of the FC regarding the 10 year period is applied, the parties involved must wait.

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

D. Requisites for creditor to avail of the right under Article 160


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

PERSONS AND FAMILY RELATIONS

Versola v. Mandolaria, (2006) The proof that the house is the family home must be alleged against creditors; Applied the rule in Art. 160, FC.

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CIVIL LAW REVIEWER

Chapter X. PATERNITY and FILIATION

Chapter X. Paternity and Filiation


I. II. III. IV. V. KINDS OF FILIATION IMPUGNING LEGITIMACY PROOF OF FILIATION LEGITIMATION RIGHTS OF LEGITIMATE OR ILLEGITIMATE CHILDREN

I.

Kinds of Filiation

De Castro v. Assidao-De Castro, (2008) Common children born before the annulment are legitimate, and therefore entitled to support from each of the spouses.

(Arts. 163, 164, 165 FC) 1. Natural a. Legitimate b. Illegitimate 2. Legal Fiction (Adoption) Legitimate Children (asked in 79, 82, 84, 85, 99 and 03 bar exams) Conceived or born during the marriage of parents May be thru natural means or by artificial insemination. 1. Natural/Biological Liyao v. Liyao, (2002): A child conceived or born during a valid marriage is presumed to belong to that marriage, regardless of the existence of extramarital relationships. 2. Artificial Insemination (Art. 164) Requisites for children conceived through artificial insemination to be considered legitimate: a. Artificial insemination made on wife b. Sperm comes any of the following: Husband Donor husband and donor c. In case of donor sperm, husband and wife must authorize/ratify insemination in a written instrument Executed & signed by husband and wife before the birth of the child. Recorded in the civil registry together with the birth certificate of the child. Illegitimate Children (asked in 80, 82, 83, 84, 90, 93, 99, 00, 07, 08 and 09 bar exams) General Rule: Those conceived and born outside of a valid marriage. Exceptions: a. Children of marriages void under Art.36 (psychological incapacity).

II. Impugning Legitimacy (Art. 166) A. Grounds


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

B. Action for Impugning Legitimacy (Arts. 170 and 171)


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

PERSONS AND FAMILY RELATIONS

b. And under Art. 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children). (SEMPIO-DIY)

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Chapter X. PATERNITY and FILIATION

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

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

III. Proof of Filiation (Arts. 172 and 175 (1))


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

A. Rules
Legitimate or illegitimate children may prove their filiation in the same way and on the same evidence. General Rule: They may only prove their status using the following pieces of evidence:
1. 2. Their record of birth appearing in the civil registry. An admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by said parent or parents. (SEMPIO-DIY) Proof of open and continuous possession of status as legitimate or illegitimate child Any other means stated by the rules of court or special laws

3. 4.

PERSONS AND FAMILY RELATIONS

1. Within 1 year if husband or any heirs reside in the same city or municipality where the child was born or his birth was recorded. 2. Within 2 years if the husband or all heirs live in the Philippines but do not reside in the same city or municipality where the child's birth took place or was recorded 3. Within 3 years if the husband or all heirs live outside the Philippines when the child's birth took place or was recorded in the Philippines

Mendoza v. Melia, 17 SCRA 788 Baptismal certificates are given probative value only for births before 1930. Birth certificates must be signed by the parents and sworn for it to be admitted as evidence.

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CIVIL LAW REVIEWER

Chapter X. PATERNITY and FILIATION

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

because either or both of them were below eighteen (18) years of age at the time of childs conception may be legitimated. Grounds for impugning legitimation
1. 2. 3. The subsequent marriage of the child's parents is void. The child allegedly legitimated is not natural. The child is not really the child of the alleged parents. (SEMPIO-DIY)

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PERSONS AND FAMILY RELATIONS

V. Rights of Legitimate and Illegitimate Children (SSS)


1. Surname
a. b. Legitimate and legitimated: Surname of father and mother Illegitimate: uses surname of mother but the fathers surname may be used if father has explicitly recognized the child as his (RA 9255, Revilla Law) Legitimate and legitimated: those granted in Civil Code Illegitimate: the share of a legitimate child Legitimate and legitimated: in accordance to provisions in the family code Illegitimate: entitle to support but support will come from separate properties of parent.

2. Succession (asked in 09 bar exams)


a. b. a. b.

3. Support

Estate of Rogelio Ong v. Diaz, (2007) DNA evidence can still be used even after the death of the parent.

B. Action for Claiming Filiation (Arts. 173 and 175 (2))


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

Republic v. Vicencio, (1998) A legitimate child's use of the father's surname is mandatory. De Asis v. CA, (1999) Obligation to support a legitimate child cannot be waived or compromised. David v. CA, (1995) Parental authority over an illegitimate child belongs to the mother. Tonog v. CA, (2002) However, this may be temporarily denied to the mother by reason of her incapacity. Mossesgeld v. CA, (1998) The father cannot force the use of his surname without first establishing legitimacy. Under RA 9255, only an acknowledgment by the father is necessary for the use of the father's surname. Capote v. CA, (2007) An illegitimate child already given the father's surname without the latter's acknowledgment, must revert to using the mother's surname.

IV. Legitimation (Arts. 177 and 182)


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

"Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are, by legal fiction, considered legitimate. Requisites for legitimation
1. 2. The child was conceived and born outside of wedlock. General rule: The parents, at the time of the child's conception, were not disqualified by any impediment to marry each other.

Exception: RA 9858 - Children born to parents who were so disqualified only

CIVIL LAW REVIEWER

Chapter XI. ADOPTION

Chapter XI. Adoption


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

ADOPTION
(Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03, 04, 05, 07, 08 bar exams)
LEGITIMATION The law merely makes legal what exists by nature ADOPTION The law merely creates by fiction a relation which did not in fact exist Generally applies to strangers Always by judicial decree Husband and wife adopt jointly with exceptions (RA8552) Creates a rel. only between the child and the adopting parents

Persons affected Procedure Who applies

Only children

natural

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

Extrajudicial acts of parents Only by both parents

Effect

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

I.

RA 8552: Domestic Adoption Act of 1998

A. Who May Adopt (Sec.7)


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

PERSONS AND FAMILY RELATIONS

d. Has not been convicted of any crime involving moral turpitude e. Emotionally and psychologically capable of caring for children f. At least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptees parent g. In a position to support and care for his/her children in keeping with the means of the family

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Chapter XI. ADOPTION Missing Child Tri-Media (2) Declaration Abandonment (3) Declaration Availability Adoption Case Study Report in of of for Application for Adoption Case Study Report Matching Placement Supervised Trial Custody Home Study Report Recommendation and Consent Petition for Adoption Adoption Decree

B. Who May Be Adopted (Sec. 8)


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

II. Adoption Procedure under RA 8552 IRR (Secs. 10-32)


(as discussed in Prof. Elizabeth Pangalangans class)

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

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


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

Attendance of DSWD Adoption Fora and Seminars (include counseling)

PERSONS AND FAMILY RELATIONS

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

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Chapter XI. ADOPTION

C. Rescission of Adoption (Sec. 19)


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

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

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PERSONS AND FAMILY RELATIONS

D. Effects of Rescission (Sec. 20)


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

E. Rectification of Simulated Births (Sec. 22)


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

CIVIL LAW REVIEWER

Chapter XI. ADOPTION

adopting parents and the adopted child. It does not extend to the blood relatives of either party.)

B. Who May Be Adopted (Sec. 8)


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

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PERSONS AND FAMILY RELATIONS

III. RA 8043: Inter-Country Adoption Act of 1995


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

A. Who May Adopt (Sec. 9)


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

C. Where to File Application (Sec.10)


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

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

CIVIL LAW REVIEWER

Chapter XI. ADOPTION

E. Inter-Country Adoption Board


1. as the central authority in matters relating to inter-country adoption 2. Ensures that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child

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PERSONS AND FAMILY RELATIONS

F. Trial Custody (Sec. 14)


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

CIVIL LAW REVIEWER

Chapter XII. SUPPORT

Chapter XII. Support


(asked in 84, 85, 05, 08 bar exams)
I. GENERAL PROVISIONS A. KINDS B. CHARACTERISTICS C. HOW SUPPORT IS GIVEN II. WHO ARE OBLIGED TO SUPPORT EACH OTHER III. PROPERTIES ANSWERABLE FOR SUPPORT IV. ORDER OF SUPPORT A. IF THERE ARE MULTIPLE OBLIGORS B. IF THERE ARE MULTIPLE RECIPIENTS

Unjustified refusal to support ones children or spouse is a sufficient cause for disinheriting a spouse (Art. 921, CC).

I.

Support
Consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Art. 194). The right and duty to support, especially the right to education, subsists even beyond the age of majority (Art. 194). The amount of support is in proportion to the means of the provider and the needs of the receiver, and can be reduced or increased if such circumstances change (Arts. 201 202). The obligation to give support shall be DEMANDABLE from the time the person who has a right to receive the same needs it for maintenance, but it shall not be PAYABLE except from the date of judicial or extra-judicial demand (Art. 203). When, WITHOUT THE KNOWLEDGE of the person obliged to give support, it is given by a stranger, the stranger has the right to claim the same from the person obliged, unless it appears that he gave it without intention of being reimbursed (Art. 206). When the person obliged to give support UNJUSTLY REFUSES OR FAILS to give support when urgently needed, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This particularly applies when the father or mother of a minor child unjustly refuses to support or fails to give support to the child when urgently needed (Art. 207). Future support cannot be the subject matter of a compromise; such are void (Art. 2035, CC).

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

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

B. Characteristics of Support (PREVIEW)


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

C. How Support is Given (Art. 204)


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

II. Who are Obliged to Support Each Other (Art. 195)


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

PERSONS AND FAMILY RELATIONS

Refusal to support children or descendants without justifiable cause is a sufficient condition for the disinheritance of parents or ascendants, whether legitimate or illegitimate (Art. 920, CC).

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Chapter XII. SUPPORT

[NOTE: Both legitimate and illegitimate children are entitled to support.]

III. Properties Answerable for Support (Art. 197-198)


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

[NOTE: Tolentino says that the above preference given to a child under parental authority over the spouse should prevail only if the person obliged to support pays it out of his own separate property. So if the support comes from ACP or CPG, the above rule of preference for the child does not apply.] Pelayo v. Lauron, (1909) Even if the parents-in-law were the ones who called for the physicians services for the childbirth of their daughter-in-law, it is the womans husband who is bound to pay the fees due to the physician. Lacson v. Lacson, (1968) Man is still liable for support in arrears since the mother advanced it from a stranger (the uncle of the daughters). Lacson v. Lacson, (2006) Acknowledgment of and commitment to comply with support obligation through a note in his own handwriting is proof that a demand was made.

IV. Order of Support (SDAB)


A. Order of support if there are multiple obligors (2 or more; Art. 199)
1. 2. 3. 4. Spouses Descendants, nearest in degree Ascendants, nearest in degree Brothers and Sisters When two or more are obliged to give support, the payment shall be divided between them IN PROPORTION to their resources; Also, in case of URGENT NEED and by special circumstances, judge may order only one obligor to furnish support without prejudice to reimbursement from other obligors of the share due from them (Art. 200).

PERSONS AND FAMILY RELATIONS

4. Legitimate brothers and sisters, whether of full or half-blood; 5. Illegitimate brothers and sisters, EXCEPT when the need for support of one (of age) is due to a cause imputable to his/her fault or negligence (Art. 196).

B. Order of priority if there are multiple recipients (Sempio-Diy)


1. Observe order in Article 199 (SDAB); 2. But if the concurrent obligees are the spouse and a child subject to parental authority, the child shall be preferred.

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Chapter XIII. PARENTAL AUTHORITY

Chapter XIII. Parental Authority


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

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

I.

Parental Authority

(asked in 94, 03 and 05 bar exams) (patria potestas): Its the mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances (Manresa). Parental authority includes (Art. 209 FC): 1. The caring for and rearing of children for civic consciousness and efficiency; 2. The development of the moral, mental and physical character and well-being of said children Rules as to the exercise of parental authority: 1. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary (Art. 211 FC) 2. If the child is illegitimate, parental authority is with the mother (Art.176 FC; see also Chapter 10). Cases when parental authority and responsibility may be transferred or renounced: Adoption; Guardianship; or Commitment of the child in an entity or institution engaged in child care or in a childrens home Characteristics of parental authority: 1. It is a natural right and duty of the parents (Art. 209 FC) 2. It cannot be renounced, transferred or waived, except in cases authorized by law (Art 210 FC) 3. It is jointly exercised by the father and the mother (Art. 211 FC)

B. Other Rights and Duties in Exercise of Parental Authority


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

PERSONS AND FAMILY RELATIONS

4. It is purely personal and exercised through agents 5. It is temporary ________________

cannot

be

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Chapter XIII. PARENTAL AUTHORITY

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

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

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

St. Marys Academy v. Carpitanos, (2002) The special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution.

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

II. Substitute Authority

and

Special

Parental

(Asked in 2003 bar exam) Substitute parental authority exercised by (in order): 1. The surviving grandparent (Art. 214 FC) 2. Oldest brother or sister, over 21 years old, unless unfit or unqualified (Art. 216 FC par 2).

PERSONS AND FAMILY RELATIONS

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

3. Childs actual custodian, over 21 years old, unless unfit or unqualified (Art. 216 FC par 3)

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Chapter XIII. PARENTAL AUTHORITY

III. Suspension or Parental Authority

Termination

of

right to grow up as a free individual

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PERSONS AND FAMILY RELATIONS

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

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

IV. Rights and Duties of Children


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

CIVIL LAW REVIEWER

Chapter XIV. FUNERALS

Chapter XIV. Funerals I. General Guidelines

Art. 305, Civil Code. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 306, Civil Code. Every funeral shall be in keeping with the social position of the deceased. Art. 307, Civil Code. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. Art. 308, Civil Code. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. Art. 309, Civil Code. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. Art. 310, Civil Code. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses.

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

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PERSONS AND FAMILY RELATIONS

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

- end of Persons and Family Relations -

CIVIL LAW REVIEWER

TABLE of CONTENTS

SUCCESSION
Table of Contents
Chapter I. Concept of Succession................59 I. Definition of Succession (Art. 774, CC) 59 II. Opening of Succession (Art. 777, CC) 59 III. Kinds of Succession (Art. 778, CC) ....59 IV. Heirs ....................................................60 Chapter II. Testamentary Succession ..........61 I. Concept ...............................................61 II. Testamentary Capacity .......................61 III. Formalities of Wills ..............................61 IV. Qualifications of Witnesses to a Notarial Will 62 V. Qualifications of Witnesses to a Notarial Will 63 VI. Institution of Heirs ...............................63 VII. Applicable Principles of Private International Law .........................................63 VIII. Codicils and Incorporation by Reference ....................................................64 IX. Revocation of Wills and Testamentary Dispositions..................................................64 X. Allowance and Disallowance of Wills..65 XI. Substitution of Heirs ............................66 XII. Legitimes.........................................67 XIII. Preterition........................................69 XIV. Reserva Troncal .............................69 XV. Disinheritance .................................70 XVI. Legacies and Devises.....................71 Chapter III. Intestate Succession..................74 I. Causes for Legal or Intestate Succession...................................................74 II. The Intestate or Legal Heirs................74 III. Fundamental Underlying Principles in Legal or Intestate Succession......................74 IV. Relationship (Arts. 963-969, CC) ........75 V. The Right of Representation (Art. 970, CC) 75 VI. Order of Legal or Intestate Succession 76 VII. Concurrence in Legal or Intestate Succession...................................................77 VIII. Outline of Intestate Shares .............77 IX. Order of Concurrence in the Case of an Adopted Child (Art, 190, FC) .......................78 Chapter IV. Provisions Common to Testamentary and Intestate Succession .....79 I. Accretion .............................................79 II. Capacity to Succeed ...........................80 III. Acceptance and Repudiation of Inheritance ...................................................81 IV. Collation (Arts. 1061-1077, CC)..........81 Chapter V. Partition and Distribution of Estate .............................................................. 83 I. Concept of Partition ............................ 83 II. Effects of Partition............................... 84 III. Nullification of Partition ....................... 84 IV. Important Periods in Partition ............. 85 Chapter VI. Application of the Important Concepts through Sample Computational Problems......................................................... 86 I. Institution of Heirs ............................... 86 II. Legitimes............................................. 86 III. Intestate Succession........................... 87 IV. Accretion ............................................. 87 V. Collation .............................................. 88

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Chapter I. CONCEPT OF SUCCESSION

Kristine Bongcaron Emil Lunasco


Lead Writers Alex Lopez Writer

SUCCESSION

SUCCESSION TEAM

Chapter I. Concept of Succession


I. II. III. IV. DEFINITION OF SUCCESSION OPENING OF SUCCESSION KINDS OF SUCCESSION KINDS OF HEIRS

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CIVIL LAW
Kristine Bongcaron Patricia Tobias
Subject Editors

I.

Definition of Succession (Art. 774,


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

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

PRINTING & DISTRIBUTION


Kae Guerrero

DESIGN & LAYOUT


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

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


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

LECTURES COMMITTEE
Michelle Arias Camille Maranan Angela Sandalo
Heads Katz Manzano Mary Rose Beley Sam Nuez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE


Lilibeth Perez

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


Testamentary (Art. 779, CC) - results from the designation of an heir made in a will Legal or intestate (Art. 960, CC) - takes place by operation of law in the absence of a valid will If a person dies without a will or with a void will or one which has subsequently lost its validity; The suspensive condition attached to the institution of heir does not happen or is not fulfilled or the heir dies before the testator or repudiates the inheritance, there being no substitution and no right of accretion takes place When the heir instituted in incapable of succeeding, except in cases provided in this Code. Heir dies before the testator

BAR CANDIDATES WELFARE


Dahlia Salamat

LOGISTICS
Charisse Mendoza

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

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Chapter I. CONCEPT OF SUCCESSION

Testator repudiates the inheritance

Mixed (Art. 780, CC) - effected partly by will and partly by operation of law

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IV. Heirs
Those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law Compulsory Heirs those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law known as the legitime, of which they cannot be deprived by the testator, except by a valid disinheritance. They succeed regardless of a will. Voluntary or Testamentary Heirs those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose. They succeed by reason of a will. Legal or Intestate Heirs those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will. They succeed in the absence of a valid will, although this is not the only ground for intestacy, as can be seen in Chapter III.

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Chapter II. TESTAMENTARY SUCCESSION

Chapter II. Testamentary Succession

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

disease, injury or other cause. (Art. 799, CC) Soundness of mind is presumed (Art. 800, CC)

III. Formalities of Wills


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

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Common Requirements for Both Kinds of Wills (Art. 804, CC) 1. Every will must be in writing; and 2. Executed in the language known to the testator. _____________ Specific Requirements for Notarial Wills (Asked in 75, 86, 90, 93, 07 and 08) 1. In writing (Art. 804, CC) 2. In the language known to the testator (Art. 804, CC)

I.

Concept

Governing Law on Validity with Respect to the Time of Execution


Aspect of the Will Formal Validity Governing Law

Law in force at the time the will was executed (Art. 795, CC) Law of decedents nationality at the time of his death (Art. 16 and 2263, CC)

Intrinsic Validity

3. SUBSCRIPTION: Subscribed to, at the end (Art. 805, CC) a. By the testator himself; or b. By the testators name written by a representative in his presence and under his express direction. 4. ATTESTATION: Attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another (Art. 805, CC).
GENERAL RULE The law presumes that every person is of sound mind EXCEPTION If within one month before making a will the testator is known to be insane, the burden of proof that he had a lucid interval is on the one alleging the validity of the will.

II. Testamentary Capacity


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

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

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Chapter II. TESTAMENTARY SUCCESSION

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

would be in contravention of Arts. 805 and 806. _____________ Special Requirements for Notarial Wills 1. Deaf Mute (Art. 807, CC) a. Testator must personally read the will; or b. Testator shall personally designate two persons to read the contents and communicate it to him in some practicable manner. 2. Blind (Art. 808, CC) a. The will shall be read to the testator twice - By one of the subscribing witnesses and by the notary public acknowledging the will. b. In the case of Garcia vs. Vasquez (1970), the court considered a testator suffering from Glaucoma as legally blind. _____________ Requisites for a Holographic Will 1. In writing (Art. 804, CC) 2. In a language known to the testator (Art. 804, CC) 3. Entirely written, dated and signed in the hand of the testator himself (Art. 810, CC)

5. MARGINAL SIGNATURES: Testator or his representative shall write his name, and the witnesses shall sign each and every page except the last page (Art. 805, CC) Exceptions: When the will consists of only one page Abangan vs. Abangan, (1919): When the will consists of only two pages, the first of which contains all dispositions and is signed at the bottom by the testator and the witnesses, and the second page contains only the attestation clause duly signed at the bottom by the witnesses. In the case of Matias vs. Salud (1957), the use of thumbprint was allowed. Icasiano vs. Icasiano, (1964): The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate.

IV. Qualifications of Notarial Will

Witnesses to a

Qualifications (Art. 820, CC) 1. Of sound mind 2. Aged 18 years or over 3. Not blind, deaf or dumb 4. Able to read and write Disqualifications (Art. 821, CC) 1. Person not domiciled in the Philippines 2. Those who have been convicted falsification, perjury, or false testimony.

of

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

Interested witness (Art. 823, CC)


General Rule Devises or legacies in favor of a spouse, parent or child who also attests to the will as a witness shall be void Exception If there are three other competent witnesses, the device or legacy shall be valid and the interested witness shall be treated as a mere surplasage

Creditors are not incompetent to be witnesses (Art. 824, CC) Supervening incompetency shall not prevent the allowance of the will (Art. 822, CC)

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

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Chapter II. TESTAMENTARY SUCCESSION

V. Qualifications of Notarial Will

Witnesses to a

6. Only the free portion can be disposed of by institution.

Notarial Will v. Holographic Will


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

Codicil (Art. 825, CC)- it is a supplement or addition to a will, made AFTER the execution and annexed to be taken as part thereof, by which any disposition made in the original is explained, added to, or altered.

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

Effect of insertion written by another person on the validity of a holographic will)


When made After the execution, without consent of testator After execution, with consent After execution, validated by testators signature Effect Insertion considered not written. Validity cannot be defeated by the malice or caprice of a third person Will is valid, insertion is void. Insertion becomes part of the will. Entire will becomes void because it is not wholly written by the testator. Will is void because it is not written entirely by the testator

Contemporaneous to the execution of the will

VI. Institution of Heirs


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

VII. Applicable Principles International Law

of

Private

Governing Law As to Time of Execution of Will


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

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A voluntary heir who dies before the testator or proves to be incapacitated transmits nothing to his heirs (Art. 851, CC)

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Chapter II. TESTAMENTARY SUCCESSION

Governing Law as to Place of Execution of Will


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

made in consideration of each other. Such is prohibited under Art. 819, CC. Prohibition is applicable only to joint wills executed by Filipinos.

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VIII. Codicils and Reference

Incorporation

by

Alien

Philippines

Outside of Philippines

the

Codicil (Arts. 825-826, CC) 1. It is a supplement or addition to a will, 2. made after the execution of a will, 3. and annexed to be taken as a part of the will, 4. by which any disposition made in the original will is explained, added to, or altered. 5. in order that it may be effective, it shall be executed as in the case of a will. Incorporation by Reference; Requisites (Art, 827, CC) 1. The document or paper referred to in the will must be in existence at the time of the execution of the will. 2. The will must clearly describe and identify the same, stating among other things the number of pages thereof. 3. It must be identified by clear and satisfactory proof as the document or paper referred to therein; and 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.

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

IX. Revocation of Wills Testamentary Dispositions

and

Modes of Revocation (Art. 830, CC) 1. By implication of law; or 2. By the execution of a will, codicil or other writing executed as provided in the case of wills; or 3. By burning, tearing, canceling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. Note: The act contemplating revocation must be done at any time before the death of the testator. The right of revocation cannot be waived or restricted. (Art. 828, CC)

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Chapter II. TESTAMENTARY SUCCESSION

Law Governing Revocation (Art. 829, CC) Place of Revocation Philippines Testators Domicile Philippines, or some other country Philippines Governing Law Philippine Law

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

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Foreign Country Outside the Philippines

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

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

X.

Allowance and Disallowance of Wills

Probate It is a Special Proceeding required to establish the validity of a will and in order to pass real or personal property (Art. 838, CC) Mercado vs. Santos (1938): The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will, and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery. General Rule: In probate proceedings, the probate court cannot inquire into the intrinsic validity of testamentary provisions. Only the

CIVIL LAW REVIEWER May be partial or total Always total, except when the ground of fraud of influence for example affects only certain portions of the will

Chapter II. TESTAMENTARY SUCCESSION

XI. Substitution of Heirs


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

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

Legend: T Testator FH First Heir / Fiduciary SH Second Heir / Fideicommissary Substitute Situation 1: If the following is the sequence of death of the three parties: FH SH T, who will inherit? The legal heirs. There is no fideicommissary substitution because FH and SH are not living at the time of the testators death. (Art 863, CC) Situation 2: T SH FH, who will inherit? The SH and his heirs under Art. 866, CC. This is because the SH passes his rights to his own heirs when he dies before FH.

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4. Fideicommissary If the testator institutes an heir with an obligation to preserve and to deliver to another the property so inherited. The heir instituted to such condition is called the First Heir or the Fiduciary Heir; the one to receive the property is the fideicommissary of the second heir. (Art. 863, CC)

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Situation 3: FH T SH, who will inherit? No specific provision in law, but SH inherits because the T intended him to inherit.

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

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

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

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Chapter II. TESTAMENTARY SUCCESSION

5 6

1 LC, SS, ILC 2 or more LC, SS, ILC LP alone LP, ILC LP, SS LP, SS, ILC ILC alone

(divided by # of children)

(preferred) Same as share of 1 LC

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

7 8 9 10 11


1/8

12

ILC, SS

1/3

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

13

SS alone

or if marriage in articulo mortis


1/3 1/3 1/3

1/3

14 15 16

ILP alone ILP, SS Adopter, ILC, SS

(adopter)

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

Remedy of a Compulsory Heir in case of Impairment of Legitime


Extent and Nature of Impairment Total omission of a compulsory heir who is a direct descendant or ascendant (preterition) Testamentary dispositions impairing or diminishing the legitime Partial impairment Impairment by inofficious donations Remedy Annulment of institution and reduction of legacies and devises (Art. 854, CC) Reduction of the disposition insofar as they may be inofficious or excessive (Art. 907, CC) Completion of the legitime (Art. 906, CC) Collation reduction of donations (Arts. 771 and 911, CC)

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Summary of Legitimes of Compulsory Heirs (Asked in 82, 85, 86, 97, 99, 03, and 05) Surviving LC & SS Relatives Descendants 1 LC alone (divided by # of children) 2 1 LC, SS 3 LC, SS (divided by # Same as of children) share of 1 LC 4 LC, ILC

ILC

LP & Ascendants

ILP

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Chapter II. TESTAMENTARY SUCCESSION

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

C. Reserva Minima v. Reserva Maxima Situation 1. The prepositus acquired property gratuitously from an ascendant or a brother or sister 2. In his will, he institutes as his heir his ascendant (who is also a compulsory heir) such that the ascendant receives half of the estate by operation of law as legitime and the other half by testamentary disposition Problem Will the property acquired gratuitiously by the prepositus from the source be treated as acquired by the ascendant-heir by operation of law (legitime) and therefore reservable or by testamentary disposition? Two Views 1. Reserva Maxima: The entire property will be considered acquired as legitime and therefore wholly reservable 2. Reserva Minima: One half is reservable, the other half is not subject to reserva troncal (Tolentino, p. 284) ___________ D. Extinguishment of the Reserva (Tolentino, p. 300-305) (LDD-RRP) 1. Loss of the reservable property 2. Death of the reservista 3. Death of all the relatives within the third degree belonging to the line from which the property came 4. Renunciation by the reservatorios 5. Registration of the reservable property under the Torrens system as free 6. Prescription, when the reservista holds the property adversely against the reservatorios, as free from reservation

XIV. Reserva Troncal


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

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or from a brother or sister (Source) by gratuitous title, 2. That the Prepositus died without an issue, 3. That the property is inherited by another ascendant (Reservista) by operation of law, and rd 4. That there are relatives within the 3 degree (Reservatarios) belonging to the line from which said property came. ___________

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Chapter II. TESTAMENTARY SUCCESSION

XV. Disinheritance
(Asked in 82, 84, 99, 00, and 08) A. 1. 2. 3. Definition of Disinheritance (Art. 915, CC) It is the act by which the testator For just cause Deprives a compulsory heir of his right to the legitime. 2. 3. 4. 5.

B. Requisites of a Valid Disinheritance 1. Heir disinherited must be designated by name or in such a manner as to leave no

6. 7.

_________________________________________________________________________________ C. Summary of Causes of Disinheritance Grounds for Disinheritance Guilty or Convicted of Attempt Against the Life of the Testator, Spouse, Ascendant or Descendant Accused Testator or Decedent of Crime Punishable by Imprisonment of 6 years or more, and Found Groundless or False Causes testator or decedent to Make a Will or Change one by Fraud, Violence, Intimidation, or Undue Influence Unjustified Refusal to Support Testator Convicted of Adultery or Concubinage with Spouse of Testator or Decedent Maltreatment of testator by Word and Deed Leading a Dishonorable or Disgraceful Life Conviction of Crime which carries the penalty of Civil Interdiction Abandonment of Children or Inducing Children to Live Corrupt and Immoral Life or Against Attempted Virtue Loss of Parental Authority Attempt by One Parent Against the Life of the Other UNLESS there is Reconciliation Between Parents Spouse Has Given Cause for Legal Separation Failure to Report Violent Death of Decedent Within One Month UNLESS Authorities Have Already Taken Action Force, Violence, Intimidation, or Undue Influence to Prevent Another from Making a Will or Revoking One Already Made or Who Supplants or Alters the Latters Will Falsifies or Forges Supposed Will of the Decedent Art, 919, CC: Children and Descendants Art. 920, CC: Parents and Ascendants Art. 921, CC: Spouse Art. 1032, CC: Unworthiness 919 * * * * * * * * * * * * * * * * 920 * * * * * 921 * * * * * 1032 * * *

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

15

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

disinheritance, he thereby submits it to the rules on disinheritance. Thus, reconciliation renders the disinheritance ineffective.

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

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Chapter II. TESTAMENTARY SUCCESSION

XVI. Legacies and Devises


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

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

Effective

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

Validity and Effect of Legacy or Devise Legacy or devise of a thing belonging to another (Art. 930, CC) STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE Testator erroneously believed that the property EFFECT ON THE LEGACY/ DEVISE Void

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

EFFECT ON THE LEGACY/DEVISE Ineffective

Valid only as to the interest or encumbrance Ineffective

Ineffective

Legatee or devisee can demand reimbursement from the heir or estate

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Legacy or devise of thing already belonging to the legatee or devisee

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Chapter II. TESTAMENTARY SUCCESSION

OBJECTS OF LEGACY OR DEVISE Thing pledged or mortgaged to secure a debt Credit or remission or release of a debt

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

Thing pledged by debtor To a creditor Order of payment of a debt

Alternative legacies and devises

Legacy of generic personal property or indeterminate real property

Legacy of education

Legacy of support

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

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Chapter II. TESTAMENTARY SUCCESSION

Order of Payment In Case the Estate Is Not Sufficient to Cover All the Legacies and Devises ART. 911 Order of Preference (LIPO) Legitime of compulsory heirs Donations Inter vivos Preferential legacies or devises All Other legacies or devises pro rata ART. 950 Order of Preference (RPSESO) Remuneratory legacy/devise Preferential legacy/devise Legacy for Support Legacy for Education Legacy/devise of Specific, determinate thing which forms a part of the estate All Others pro rata Application: When there are no compulsory heirs and the entire estate is distributed by the testator as legacies or devises; or When there are compulsory heirs but their legitime has already been provided for by the testator and there are no donations inter vivos. NOTE: Art. 950, CC governs when the question of reduction is exclusively among legatees and devisees themselves.

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

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

How Legacy or Devise Delivered (Art. 951, CC) 1. The very thing bequeathed shall be delivered and not its value 2. With all its accessions and accessories 3. In the condition in which it may be upon the death of the testator 4. Legacies of money must be paid in cash Ground for Revocation of Legacies and Devises (Art. 957, CC) (TALO) 1. Testator Transforms the thing such that it does not retain its original form or denomination 2. Testator Alienates the thing by any title or for any cause. Reacquisition of the thing by the testator does not make the legacy or devise valid, unless it is effected by right of repurchase. 3. Thing is totally Lost during the lifetime or after the death of the testator 4. Other causes: nullity of will, non-compliance with suspensive condition, sale of the thing to pay the debts of the deceased during the settlement of his estate.

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Chapter III. INTESTATE SUCCESSION

Chapter III. Intestate Succession


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

The Civil Code does not state a definition of legal or intestate succession. Art. 960 only enumerates the instances when legal succession takes place. This enumeration is not exclusive, as there are other instances where intestacy may occur, as listed below.

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

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II. The Intestate or Legal Heirs


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

I.

Causes for Succession

Legal

or

Intestate

1. If a person dies without a will (Art 960[1]) 2. If a person dies with a void will (Art 960[1]) 3. If a person dies with a will which has subsequently lost its validity (Art 960[1]) 4. When the will does not institute an heir (Art 960[2]) 5. When the will does not dispose of all the property belonging to the testator. Legal succession shall take place only with respect to the property which the testator has not disposed (Art 960[2]) 6. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled (Art 960[3]) 7. If the heir dies before the testator (Art 960[3]) 8. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place (Art 960[3]) 9. When the heir instituted is incapable of succeeding, except in cases provided in the Civil Code (Art 960[4]) 10. Preterition Intestacy may be total or partial depending on whether or not there are legacies or devises (Balane, p.426) 11. Upon the expiration of a resolutory term attached to the institution of heir (Balane, p.426) 12. Upon fulfillment if a resolutory condition attached to the institution of heir, rendering the will ineffective (Balane, p.426)

III. Fundamental Underlying Principles in Legal or Intestate Succession


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

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Chapter III. INTESTATE SUCCESSION

c.

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

V. The Right of Representation (Art. 970, CC)


(Asked in 77, 82, 85, 88, 92, 97, and 07) It is a right created by fiction of law; By virtue of which the representative is raised to the place and degree of the person represented; And acquires the rights which the latter would have if he were living or if he would have inherited.

Important Concepts Representation is only allowed with respect to inheritance conferred by law (i.e., as to legitimes and intestate shares [ Art 923, CC]), in cases of incapacity, disinheritance, and predecease of an heir. There is no representation in voluntary succession (by will). (Art 856, CC) There is also no representation in repudiation. Note, however that a renouncer can represent, but cannot be represented. Representation takes place ad infinitum in the direct descending line but never in the direct ascending line. ( Art 972, CC) In the collateral line, representation takes place only in favor of the children of the brothers or sisters (i.e., nephews and nieces) whether of the full or half-blood (Art. 972, CC) and only if they concur with at least one uncle or aunt. In this case, they share in the inheritance per stirpes. If the children survive alone, they inherit in their own right and share in equal proportions or per capita. (Art. 975) Inheritance per stirpes representative/s shall not what the person they inherit, if he were living (Art.975, CC) means that the inherit more than represent would or could inherit.

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


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

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the rule of division by line in the ascending line Article 987 par.2) d. the distinction between full-blood and half-blood relationship among brothers and sisters, as well as nephews and nieces. (Art 1006 and 1008) e. representation

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

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

must be a legal heir of both the person he is representing and the decedent. Thus, illegitimate children can represent illegitimate children parents in inheritance from illegitimate grandparents. (*Rationale: Iron-curtain rule under Art. 992, CC) On the other hand, a legitimate child may represent either a legitimate or illegitimate parent in the inheritance of either a legitimate or illegitimate grandparents. (Arts. 902, 989,990) Representation in Adoption (Asked in 94, 04, and 07) If the adopting parent should die before the adopted child, the later cannot represent the former in the inheritance of the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because filiation created by fiction of law is exclusively between the adopter and the adopted. (TOLENTINO pp. 448-449)

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the of

Exception Whenever all the children repudiate, the grandchildren inherit in their own right because representation is not proper. (Art 969, CC) Right of representation in the collateral line is only possible in INTESTATE succession. It cannot take place in testamentary succession. In determining whether or not representation is proper, apply the DOUBLE HEIRSHIP TEST (Art. 973, CC): the representative

VI. Order of Legal or Intestate Succession


(Asked in 77, 78, 97, 98, 99, 00, 06, and 08)
Decedent is a Legitimate Child 1 2 3 LC and Legitimate descendants LP and Legitimate ascendants ILC and Illegitimate descendants SS Legitimate siblings, Nephews, Nieces Legitimate collateral relatives within th the 5 degree State Decedent is an Illegitimate Child LC and Legitimate descendants ILC and Illegitimate descendants ILP Decedent is an Adopted Child LC and Legitimate descendants ILC and Illegitimate descendants LP or ILP and Legitimate ascendants, Adoptive parents SS Siblings, Nephews, Nieces State

4 5

6 7

SS Illegitimate siblings, Nephews, Nieces State

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Chapter III. INTESTATE SUCCESSION

VII. Concurrence in Legal or Intestate Succession


INTESTATE HEIRS LC and Legitimate descendants ILC and Descendants LP and Legitimate ascendants ILP SS Excludes Ascendants, Collaterals and State ILP, Collaterals and State Collaterals and State Collaterals and State Collaterals other than siblings, nephews and nieces Excluded By No one Concurs With SS and ILC SS LC and LP ILC and SS SS LC, ILC, LP, ILP Siblings Nephews Nieces SS

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No one

LC LC and ILC No one

Siblings, Nephews Nieces th Other collaterals within 5 degree State

All other collaterals and State Collateral more remote in degree and State No one

LC, ILC, LP, ILP

LC, ILC, LP, ILP and SS Everyone

Collaterals in the same degree No one

VIII.

Outline of Intestate Shares

(Asked in 76, 79, 92, 03, 04, 06, and 08) 1. Legitimate children only a. Divide entire estate equally among all legitimate children (Art. 979, CC) b. Legitimate children include an adopted child. 2. Legitimate children and Illegitimate children Divide entire estate such that each illegitimate child gets of what a legitimate child gets (Art. 983, CC and Art. 176, FC) 3. Legitimate children and surviving spouse a. Divide entire estate equally between the legitimate children and the surviving spouse, the latter deemed as one child. The same rule holds where there is only one child. b. Children as used in Art. 996 is interpreted to include a situation where there is only one child. 4. Legitimate children. Surviving spouse, and Illegitimate children Divide the entire estate such that the surviving spouse is deemed one legitimate child and each illegitimate child getting of what the legitimate child gets (Art. 996, CC and Art. 176, FC)

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

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Chapter III. INTESTATE SUCCESSION

11. Illegitimate children and surviving spouse Illegitimate children get of the estate; the surviving spouse gets the other . (Art. 998, CC) 12. Surviving spouse only Entire estate goes to the surviving spouse. (Art. 994/995, CC) 13. Surviving spouse and illegitimate parents Illegitimate parents get and the spouse gets the other (by analogy with Art. 997, CC) 14. Surviving spouse and legitimate brothers and sisters, nephews and nieces Surviving spouse gets of the estate, while the rest gets the other with the nephews and nieces inheriting by representation if proper. (Art. 1001, CC) 15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces Surviving spouse gets of the estate while the rest gets the other with the nephews and nieces inheriting by representation, if proper; Note that all the other relatives should be illegitimate because of the ironcurtain rule. (Art. 994,CC) 16. Illegitimate parents only Entire estate goes to the illegitimate parents. (Art 993, CC) 17. Illegitimate parents and children of any kind (whether legitimate or illegitimate child) Illegitimate parents are excluded and do not inherit; For the rule on the respective shares of the children, see numbers 1, 2 or 10, whichever is applicable. 18. Legitimate brothers and sisters only Divide the entire estate such that full-blood brothers/sisters gets a share double the amount of a half-blood brother or sister. (Art. 1004 and 1006, CC) 19. Legitimate brothers and sisters, nephews and nieces Divide the entire estate observing the 2 is to 1 ratio for full and half blood relationships with respect to the brothers and sisters, with the nephews and nieces inheriting by representation, if proper. (Art. 1005 & 1008, CC) 20. Nephews and nieces only

Divide the entire estate per capita, observing the 2 is to 1 ratio. (Arts. 975 and 1008, CC) 21. Other collaterals (Arts. 1009 and 1010) a. Divide entire estate per capita. th b. Collateral relatives must be with the 5 degree of consanguinity. c. Note: the nearer relative excludes the more remote relatives. 22. State If there are no other intestate heirs, the State inherits the entire estate through escheat proceedings. (Art. 1011, CC)

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IX. Order of Concurrence in the Case of an Adopted Child (Art, 190, FC)
(Asked in 79, 86, 04 and 07)
SURVIVORS LC, ILC, SS LP or ascendants or ILP Adopter LP or ascendants or ILP or Adopter SS LP or ascendants Adopter ILC or descendants LP or ascendants Adopter SS ILC or descendants Adopter alone Collateral blood relatives SHARE As in the case of ordinary intestate succession 1/3 1/3 1/3 Entire estate As in the case of ordinary intestate succession

CIVIL LAW REVIEWER

Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

Chapter IV. Provisions Common to Testamentary and Intestate Succession


I. Accretion II. Capacity to Succeed III. Acceptance or Repudiation of Inheritance IV. Collation

There can only be accretion if there is an institution of heirs with respect to specific properties. (Art 1016, CC) Among compulsory heirs, there can only be accretion with respect to the free portion. There can be no accretion with respect to the legitimes. (Arts. 1021 and 1018, CC) The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (Art. 1019, CC) The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (Art. 1020, CC) In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (Art 1022, CC) Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (Art 1023, CC)

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I.

Accretion

A. Definition of Accretion (Art. 1015, CC) It is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to one who renounces or cannot receive his share or who died before the testator is added or incorporated to that of his co-heirs, co-devisees, or colegatees. Accretion happens when there is repudiation, incapacity, or predecease of an heir. It is the mechanism where the share of an heir is increased by vacant shares vacated by heirs who cannot inherit for various reasons. (RATIONALE: the decedent intended to give the property to nobody but the co-heirs.)

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

CAUSE OF VACANCY Predecease

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

Incapacity

Disinheritance Repudiation

INTESTATE SUCCESSION Representation Intestate Succession Representation Intestate Succession Accretion

CIVIL LAW REVIEWER

Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

II. Capacity to Succeed


A. Requisites for Capacity to Succeed by Will or by Intestacy (Art. 1024 1025, CC) The heir, legatee or devisee must be living or in existence at the moment the succession opens; (Art 1025) and He must not be incapacitated or disqualified by law to succeed. (Art 1024, par.1) B. Who Are Incapable of Succeeding BASED ON UNDUE INFLUENCE OR INTEREST (Art. 1027, CC) PIGRAP Priest who heard the last confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; Individuals, associations and corporations not permitted by law to inherit; Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; except if the guardian is his ascendant, descendant, brother, sister, or spouse; Relatives of the priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; Attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. BASED ON MORALITY OR PUBLIC POLICY (Arts. 739 and 1028, CC) Those made in favor of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. Those made in consideration of a crime of which both the testator and the beneficiary have been found guilty. Those made in favor of a public officer or his spouse, descendants and ascendants, by reason of his public office.

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

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C. Pardon of Acts of Unworthiness


EXPRESS Made by the execution of a document or any writing in which the decedent condones the cause of incapacity Cannot be revoked IMPLIED Effected when the testator makes a will instituting the unworthy heir with knowledge of the cause of incapacity Revoked when the testator revokes the will or the institution

CIVIL LAW REVIEWER

Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

III. Acceptance Inheritance

and

Repudiation

of

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

Heirs in Two Capacities (Art. 1055, CC) 1. If a person is called to the same inheritance as an heir by will and by law and he repudiates the inheritance in his capacity as a testamentary heir, he will be considered to have also repudiated the inheritance as a legal heir. 2. If he repudiates it as a legal heir, without his being a testamentary heir, he may still accept it in the latter capacity.

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


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

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Characteristics (VIR) (Arts. 1041 1042, 1056, CC) 1. Voluntary and free (Art 1041, CC) 2. Irrevocable except if there is vitiation of consent or an unknown will appears (Art 1056, CC) 3. Retroactive (Art 1042, CC)

2. in an authentic document equivalent of an indubitable writing or a writing whose authenticity is admitted or proved; or 3. by petition presented to the court having jurisdiction over the testamentary or intestate proceeding

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CIVIL LAW REVIEWER

Chapter IV. PROVISIONS common to TESTAMENTARY and INTESTATE SUCCESSION

Restitution returning or the act of payment of the excess to the mass of hereditary estate.

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

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

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Note: Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (Art 1065, CC)

Generally not imputable to legitime/ cannot be collected, subject to exceptions

CIVIL LAW REVIEWER

Chapter V. PARTITION and DISTRIBUTION of ESTATE

Chapter V. Partition and Distribution of Estate


I. II. III. IV. The Concept of Partition The Effect of Partition Nullification of Partition Important Periods in Partition

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

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I.

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

A void partition may be valid if 1. the will was in fact a partition 2. the beneficiaries of the void will were legal heirs The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (Art. 1089 CC)

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

CIVIL LAW REVIEWER

Chapter V. PARTITION and DISTRIBUTION of ESTATE

the time they were notified in writing of the sale by the vendor (Art. 1088, CC) Strangers those who are not heirs on the succession.

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

III. Nullification of Partition


(Asked in 90) Causes for Rescission or Annulment 1. A partition may be rescinded or annulled for the same causes as contracts. (Art 1097, CC) 2. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated (Art. 1098, CC) This article applies only to cases of partition among-coheirs Lesion is the injury suffered in consequence of inequality of situation by one party who does not receive the full equivalent for what she gives in a sale or any commutative contract 3. The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may be reasonably be presumed, that the intention of the testator was otherwise. (Art. 1099, CC) 4. Preterition of a compulsory heir in the partition (Art 1104, CC): Partition shall not be rescinded unless bad faith or fraud on the part of other heirs is proved. The culpable heirs shall share in the damages of the prejudiced compulsory heir proportionately. 5. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (Art. 1105 CC ___________ The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (Art. 1100, CC) The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition

SUCCESSION

II. Effects of Partition

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

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Chapter V. PARTITION and DISTRIBUTION of ESTATE

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

IV. Important Periods in Partition


1 month or less before making a will 20 years 5 years from delivery to the State 1 month Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will Maximum period testator can prohibit alienation of dispositions To claim property escheated to the State To report knowledge of violent death of decedent lest he be considered unworthy Action for declaration of incapacity & for recovery of the inheritance, devise or legacy Must signify acceptance/repudiation otherwise, deemed accepted Right to repurchase hereditary rights sold to a stranger by a coheir To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues To enforce warranty of solvency of debtor of the estate at the time partition is made Action for rescission of partition on account of lesion

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

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

5 years partition 4 years partition

from

form

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CIVIL LAW REVIEWER

Chapter VI. APPLICATION

Chapter VI. Application of the Important Concepts through Sample Computational Problems
I. II. III. IV. II. III. IV. Institution of Heirs Legitimes Intestate Succession The Effect of Partition Nullification of Partition Important Periods in Partition

property. How will you compute the proportional increase in each heirs shares in order not to exceed the total estate of Mickey (assuming no legitimes were impaired)?
Goofys original share: Donalds original share: Minnies original share: 1/3 of 12,000 1/4 of 12,000 1/4 of 12,000 4,000 3,000 3,000 TOTAL: 10,000 DEFICIENCY : 2,000

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(Based on the lectures of Prof. Danilo L. Concepcion)

I.

Institution of Heirs

Goofys increase = 4,000/10,000 x 2,000 = 800 Donalds increase = 3,000/10,000 x 2,000 = 600 Minnies increase = 3,000/10,000 x 2,000 = 600 Total Deficiency = P2000 P10,000 + P2,000 = P12,000 (the total estate) Goofy gets P4000 + 800 = P 4,800 Donald gets P3,000 + 600 = P3, 600 Minnie gets P3,000 + 600 = P 3, 600

A. Excess Institution Mickey died testate, leaving a total estate of P12,000. According to his Will, Goofy gets , Donald gets 1/3 and Minnie gets of the property. How will you compute the proportional reduction from each heirs shares in order not to exceed the total estate of Mickey (assuming no legitime is impaired)?
Goofys original share: Donalds original share: Minnies original share: of 12,000 1/3 of 12,000 of 12,000 6,000 4,000 3,000 TOTAL: 13,000 EXCESS: 1,000

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

Goofys reduction = 6,000/13,000 x 1,000 = 461.53846 Donalds reduction = 4,000/13,000 x 1,000 = 307.69231 Minnies reduction = 3,000/13,000 x 1,000 = 230.76923 Total Deduction = P1000 P13,000 P1,000 = P12,000 (the total estate) Goofy gets P6000 P461.53846 Donald gets P4,000 P307.69231 Minnie gets P3,000 P230.76923 ___________ B. Deficiency in Institution Mickey died testate, leaving a total estate of P12,000. According to his Will, Goofy gets 1/3, Donald gets and Minnie gets of the

CIVIL LAW REVIEWER

Chapter VI. APPLICATION

B. Legitimes: Concurrence of Spouse and Legitimate Children

III. Intestate Succession


Anderson Silva died, leaving a total estate of P120,000. He was survived by his wife, Machida, and his three children: Chuck, Quinton, and George. How much legitime is allotted by law to each heir? Legitimate Children get The is divided into as many legitimate children. Wife gets an amount equal to the share of a legitimate child. Final Answer: Chuck = P20,000 Quinton = P20,000 George = P20,000 Machida = P20,000 Free Portion = P40,000 ___________ Hulk Hogan died intestate, with a total estate of P70,000. His wife, Sable, his legitimate son, Ultimate Warrior, and his two illegitimate children, Stone Cold and Undertaker, survived him. How will his estate be divided among these heirs? Applying the law in intestate succession, each heirs will receive the ff: Ultimate Warrior P35,000 Stone Cold P17,500 Undertaker P17,500 Sable P35,000 Since the total shares will exceed P70,000, reduction is in order. The share of those who will receive more than their legitimes must be reduced. The spouses share should be reduced first to the amount of her legitime (P17,500) (note: the share of the others are equal to their legitimes) Further reductions shall be made since the amount will still exceed the net estate. Following the law of legitimes, namely that the legitime of the legitimate child and the surviving spouse shall be preferred over the illegitimate childrens shares, the reduction will be suffered by the illegitimate children. Final Answer: Ultimate Warrior P35,000 Stone Cold P8750 Undertaker P8750 Sable P17,500

C. Legitimes: Concurrence of Spouse, Legitimate and Illegitimate Children Princess toadstool died, survived by her husband, kupa, her legitimate child, mushroom, and by her two illegitimate children, mario and luigi. She has a total estate of p120,000. How much legitime is allotted by law to each heir? The legitimate child gets . The wife gets of the share of the legitimate child (because there is only one legitimate child) The illegitimate children will each get of the share of the legitimate child. Mushroom P60,000 Kupa P30,000 Mario P30,000 Luigi P30,000

IV. Accretion
Goku died testate, leaving an estate of P720. In his will, he instituted his sons to his entire estate. His sons are Vegeta, Napa, Raditz and Freeza. Vegeta, who had two children (Trunks and Bulma), predeceased Goku. Napa, who hated

But this will yield a total of p150,000. Thus the shares of the illegitimate children must be reduced. Reduction = excess / number of children illegitimate

SUCCESSION

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

Reduction = (150,000 - 120,000)/2 =15,000 P30,000 (share) 15,000 (reduction) =P15,000 Final Answer: Mushroom = P60,000 Kupa = P30,000 Mario = P15,000 Luigi = P15,000

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Chapter VI. APPLICATION

his fathers guts, repudiated his share in the will. Raditz, who likewise has two children (Tenshenhan and Chowzu), was found to be incapacitated to inherit from his father. Lastly, Freeza, the youngest and most beloved son of Goku, has a son, Magneato. Determine Legitime and Free Portion:
Heir Vegeta (predeceased) Napa (repudiated) Raditz (incapacitated) Freeza Will 180 = legitime:120 free: 60 180 (automatically becomes free portion) 180 = legitime:120 free: 60 180 = legitime:120 free: 60

P50,000 to Spiderman. In 1982, he made a donation to Robinhood worth P100,000. Compute for the shares of each heir. Total Estate = Gross Estate Liabilities + Donations Inter Vivos Total Estate = 90,000 0 + 150,000 = P240,000 Determine the Legitimes: Legitimate Children = of Total Estate Therefore: Spiderman = P60,000 Robinhood = P60,000 Surviving Spouse = amount equal to Legitimate Child Therefore: Sandy = P60,000 Determine their Intestate Shares
Heir Spiderman Robinhood Sandy Final Answer 80, 000 (60,000 = legitime) 80,000 (60,000 = legitime) 80,000 (60,000 = legitime)

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Determine amount received by heirs through representation for the legitimes


Heir Vegeta (predeceased) Representation for Legitime Legitime = 120 Trunks: 60 Bulma: 60 Legitime = 120 Tenshenhan: 60 Chowzu: 60

Determine Advances
Heir Spiderman Robinhood Sandy Advance 50,000 100,000

Napa (repudiated) Raditz (incapacitated)

Freeza

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

Determine if there is accretion:


Heir Vegeta (predeceased) Napa (repudiated) Raditz (incapacitated) Freeza Accretion - 60 -180 -60 + (60 + 60 + 180) or + 300

Sandy

COMPUTE:
Heir Vegeta (predeceased) Napa (repudiated) Raditz (incapacitated) Freeza Final Answer Trunks: 60 Bulma: 60 0 Tenshenhan: 60 Chowzu: 60 480

Since Robinhoods share has been exhausted but there is still a deficiency of 20,000, this 20,000 will be deducted from the free portions of Spiderman and Sandy Pro Rata.
Heir Spiderman Computation Legitime Left: 10,000 Free Portion Left = 20,000 10,000 = 10,000 0 Legitime: 60,000 Free Portion: 20,000 10,000 = 10,000

Robinhood Sandy

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

Final Answer 20,000 0 70,000

- end of Succession -

CIVIL LAW REVIEWER

TABLE of CONTENTS

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

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OBLIGATIONS

CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS

Prof. Solomon Lumba


Faculty Editor

OBLIGATIONS & CONTRACTS

OBLIGATIONS & CONTRACTS TEAM

Chapter I. General Provisions


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

Leo Ledesma
Lead Writer Krizel Malabanan Ivy Velasco Tin Reyes Frances Domingo Hazel Abenoja Writers

91
OBLIGATIONS

CIVIL LAW
Kristine Bongcaron Patricia Tobias
Subject Editors

Article 1156, Civil Code. An obligation is a juridical necessity to give, to do or not to do.

I.

Obligations

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

PRINTING & DISTRIBUTION


Kae Guerrero

DESIGN & LAYOUT


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

Elements of an Obligation (De Leon, 2003) 1. ACTIVE SUBJECT (Obligee/Creditor): the person who has the right or power to demand the prestation. 2. PASSIVE SUBJECT (Obligor/Debtor): the person bound to the perform the prestation. 3. PRESTATION (Object): the conduct required to be observed by the debtor/obligor (to give, to do or not to do). 4. VINCULUM JURIS (Juridical or Legal Tie; Efficient Cause): that which binds or connects the parties to the obligation.

II. Sources of Obligations


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

LECTURES COMMITTEE
Michelle Arias Camille Maranan Angela Sandalo
Heads Katz Manzano Mary Rose Beley Sam Nuez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE


Lilibeth Perez

BAR CANDIDATES WELFARE


Dahlia Salamat

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

LOGISTICS
Charisse Mendoza

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

Unilateral

CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS action (res judicata) if judgment of acquittal contained a declaration that no negligence can be attributed to the accused and that the fact from which civil action might arise did not exist

D. Delicts (Acts or omissions punished by law; crimes) Extent of Civil Liability Governed by the Revised Penal Code and the Civil Code, includes: 1. Restitution; 2. Reparation of damages caused; and 3. Indemnity for consequential damages (Art. 104, Revised Penal Code). (Tolentino, 1987) Enforcement of Civil Liability 1. Independent: Criminal and civil action arising from the same offense may be instituted separately. 2. Suspended: However, after criminal action has been commenced prosecution for civil action is suspended in whatever stage it may be found, until final judgment in the criminal proceeding is rendered; 3. Impliedly Instituted: Civil action is impliedly instituted with the criminal action, when: offended party expressly waives the civil action or reserves the right to institute a separate civil action; or the law provides for an independent civil action
Barredo v. Garcia, (1942): The same negligent act may give rise to an action based on delict or quasidelict and the injured party is free to choose which remedy to enforce. Mendoza vs. Arrieta, (1979): If the civil action is based on quasi-delict, there is no need to reserve the right to file a civil action in the criminal case.

Quasi-Delict Private, against individual Criminal intent is not necessary Present in any act or omission where fault or negligence intervenes Gives rise to liability for damages to the injured party Reparation, compensation or indemnification of the injury suffered by the injured party Preponderance of evidence Can be compromised

Crimes Public, against the State Criminal necessary liability intent is for criminal

An act can is only punishable when there is a law penalizing it There are crimes from which no civil liability arises Fine or imprisonment or both, to public treasury

Proof of guilt beyond reasonable doubt Can never be compromised

Requisites of Liability (DWD) 1. Wrongful act or omission by fault or negligence 2. Damage or injury proven by the person claiming recovery 3. Direct causal connection between the fault or negligence and the damage or injury
Liability for QuasiDelict (Art. 2180, NCC) Primary, can be directly sued by the injured party Liability for Crimes (Art. 103, RPC) Subsidiary, employee must first be convicted and sentenced to pay civil indemnity Employer is only liable when he is engaged in some kind of business or industry

Effect of Acquittal on Civil Actions


Barred if based on the very same facts on which the criminal action which ended in acquittal was based if the facts alleged in the civil case has been found to be nonexistent in the criminal No Effect an independent civil action is allowed by law acquittal is due to lack of proof beyond reasonable doubt All employers, whether engaged in some enterprise or not, are liable for acts of employees, even household helpers Avoid civil liability by proving exercise of diligence of a good father of a family

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

OBLIGATIONS

Kinds of Quasi-Contracts Negotiorum Gestio: officious or voluntary management of the property or affairs of another without the knowledge or consent of the latter. Solutio Indebiti: undue payment. The juridical relation arises when: o a thing is received without any right; and o the thing delivered by mistake. Others: See Arts. 2164-2175 (De Leon, 2003)

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E. Quasi-Delicts (Voluntary acts or omissions with fault or negligence causing damage to another; not a crime nor a contract)

CIVIL LAW REVIEWER

Chapter II. NATURE and EFFECT of OBLIGATIONS

Chapter II. Obligations


I. II. III. IV. V.

Nature

and

Effect

of

OBLIGATION TO GIVE
Specific Thing Generic Thing Object is designated only by its class/ genus/ species. Debtor can give anything of the same class as long as it is of the same kind. Can be substituted by any of the same class and same kind. Real Right Vested after delivery A right enforceable against the world Right pertaining to a person over a specific thing, without a passive subject individually determined against whom such right may be personally enforced Limited Generic Thing When the generic objects are confined to a particular class.

KINDS OF PRESTATIONS BREACH OF OBLIGATIONS FORTUITOUS EVENTS REMEDIES USURIOUS TRANSACTIONS

I.

Kinds of Prestations

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

Cannot be substituted.

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

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

Duties of the Debtor To preserve or take care of the thing due To deliver the thing itself To deliver the fruits of the thing To deliver the accessions and accessories To pay for damages in case of breach To deliver a thing of the quality intended by the parties taking into consideration the purpose of the obligation and other circumstances Creditor cannot demand a thing of superior quality neither can the debtor deliver a thing of inferior quality To be liable for damages in case of breach To do it To shoulder the cost of having someone else do it To undo what has been poorly done To pay for damages in case of breach

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

To Do

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

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

OBLIGATIONS

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

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Chapter II. NATURE and EFFECT of OBLIGATIONS

Not To Do

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

II. Breach of Obligation


A. Voluntary fraud, negligence, delay or contravention of tenor of the obligation B. Involuntary fortuitous event TYPES OF BREACH
Substantial Breach Total breach Amounts to NonPerformance; Basis for rescission under Art. 1191 and payment of damages Slight or Casual Breach Partial breach Obligation is partially performed; Gives rise to liability for damages only

Effect of Contributory Negligence Reduces or mitigates the recoverable damages, UNLESS, the negligent act or omission of the creditor is the proximate cause of the event which led to the damage or injury complained of. In this case, he cannot recover. Diligence Required (De Leon, 2003) a. By stipulation: that agreed upon by the parties. b. By law: in the absence of stipulation, that required by law in the particular case. c. Diligence of a good father of a family: if both the contract and law are silent. Future Negligence: may be waived except in cases where the nature of the obligation or the public requires another standard of care (i.e. extraordinary diligence as for a common carrier)
Negligence There is no deliberate intention to cause damage Liability may be mitigated Waiver for future negligence may be allowed in certain cases: gross can NEVER be excused in advance; amounts to wanton attitude; rules on fraud shall apply simple may be excused in certain cases

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

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

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

Mandarin Villa Inc. v. CA (1996): Test of Negligence: Did the defendant in doing the alleged negligent act use the reasonable care and caution which an ordinary and prudent person would have used in the same situation? If not, then he is guilty of negligence.

OBLIGATIONS

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

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Chapter II. NATURE and EFFECT of OBLIGATIONS Mora Solvendi Requisites 1. Obligation must be liquidated, due and demandable 2. Non-performance by the debtor on period agreed upon 3. Demand, judicial or extra-judicial, by the creditor Effects 1. The debtor is liable for damages 2. The debtor is liable even if the loss is due to fortuitous events 3. For determinate objects, the debtor shall bear the risk of loss Mora Accipiendi Requisites 1. Debtor offers of performance 2. Offer must be in compliance with the prestation 3. Creditor refuses the performance without just cause Effects 1. The responsibility of the debtor is reduced to fraud and gross negligence 2. The debtor is exempted from risk of loss of the thing which is borne by the creditor 3. The expenses incurred by the debtor for the preservation of the thing after the mora shall be chargeable to the creditor 4. If the obligation bears interest, the debtor does not have to pay from the time of delay 5. The creditor is liable for damages 6. The debtor may relieve himself of obligation by consigning the thing

Extent of Damages to be Awarded


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

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

Culpa Aquiliana Asked in 83, 84, and 86) Negligence is substantive and independent

There may or may not be a pre-existing contractual obligation The source of obligation is the defendants negligence itself

The negligence of the defendant must be proved

Proof of diligence in the selection and supervision of the employee is a defense

Culpa Criminal: wrong or negligence in the commission of a crime

3. DELAY or DEFAULT (MORA): failure to perform an obligation on time which constitutes breach of the obligation (De Leon, 2003). Mora Solvendi: delay on the part of the debtor to fulfill his obligation either to give (Ex re) or to do (Ex persona), (Asked in 83, 84, 85, and 86); No Mora Solvendi in: Negative Obligations because delay is impossible (De Leon, 2003); Natural Obligations (Tolentino, 1987). Mora Accipiendi: delay on the part of the creditor to accept the performance of the obligation Compensatio Morae: delay of the parties in reciprocal obligations; effect: as if there is no default.

Rules on Mora, Delay or Default


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

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

OBLIGATIONS

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

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Chapter II. NATURE and EFFECT of OBLIGATIONS

III. Fortuitous Event (Force Majeure) IV. Remedies to Creditors


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

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

OBLIGATIONS

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

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

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Chapter II. NATURE and EFFECT of OBLIGATIONS

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

2. Accion Pauliana: Rescission, which involves the right of the creditor to attack or impugn by means of a rescissory action any act of the debtor which is in fraud and to the prejudice of his rights as creditor. Requisites: CASAL a. There is a credit in favor of plaintiff prior to alienation b. The debtor has performed a subsequent contract conveying a patrimonial benefit to third persons c. The creditor has no other legal remedy to satisfy his claim d. The debtors acts are fraudulent to the prejudice of the creditor e. The third person who received the property is an accomplice in the fraud
Accion Subrogatoria Not necessary that creditors claim is prior to the acquisition of the right by the debtor No need for fraudulent intent No period for prescription Accion Pauliana Credit must exist before the fraudulent act

Art. 1176, Civil Code. Receipt of the principal without reservation as to the interest shall give rise to a disputable presumption that the interest has been paid. Receipt of the latter installment without reservation as to prior installments shall likewise give rise to a disputable presumption that such prior installments have been paid.

Determination of Interests Eastern Shipping Lines v. CA (1961)


Stage 1 For loan or forbearance NOT for loan or of money, goods or forbearance of money, credit, the interest rate goods or credit, the is 12% interest rate is 6% a) Interest = interest rate stipulated in writing + 12% legal interest, computed from date of judicial demand (filing of complaint) b) If there is no stipulated interest rate, the interest rate is 12% computed from date of default or demand (judicial or extrajudicial) a) If date of demand is certain, compute from the date when demand is made (judicial or extra-judicial)

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

3. Accion Directa (Art. 1729, 1652, 1608, 1893): the right of lessor to go directly to a sublessee for unpaid rents of the lessee 4. The right of laborers or persons who furnish materials for a piece of work undertaken by a contractor to go directly to the owner for any unpaid claim due to the contractor 5. The right of vendor against every possessor whose right is derived from the vendee 6. The right of a principal against a substitution appropriated by an agent

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

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

OBLIGATIONS

Requisites a. Debtor to whom the right of action properly pertains must be indebted to the creditor b. The debt is due and demandable c. The creditor must be prejudiced by the failure of the debtor to collect his own rd debt from 3 persons either through malice or negligence d. The debtors assets are insufficient (debtor is insolvent) e. The right of action is not purely personal to the debtor

Siguan v. Lim, (1999): Petitioner cannot invoke the credit of a different creditor to justify the rescission of the subject deed of donation, because the only creditor who may benefit from the rescission is the creditor who brought the action; those who are strangers to the action cannot benefit from its effects.

V. Usurious Transactions and Rules on Interest

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Chapter III. DIFFERENT KINDS of OBLIGATIONS

Chapter III. Different Kinds of Obligations


I. II. III. IV. PURE AND CONDITIONAL OBLIGATIONS RECIPROCAL OBLIGATIONS OBLIGATIONS WITH A PERIOD ALTERNATIVE AND FACULTATIVE OBLIGATIONS V. JOINT AND SOLIDARY OBLIGATIONS VI. DIVISIBLE AND INDIVISIBLE OBLIGATIONS VII. OBLIGATIONS WITH A PENAL CLAUSE

I.

Pure and Conditional Obligations

(Asked in 79, 88, 00, 03) Pure Obligation (Art.1179): Effectivity or extinguishment does not depend upon the fulfillment or non-fulfillment of a condition or upon the expiration of a term or period and characterized by the quality of its being IMMEDIATELY DEMANDABLE. Conditional Obligation (Art.1181): Effectivity is subject to the fulfillment or non-fulfillment of a condition, which is characterized to be a FUTURE and UNCERTAIN event. Effects of Conditions 1. Suspensive Condition: Obligation shall only be effective upon the fulfillment of the condition (Art.1181). What is acquired by the obligee upon the constitution of the obligation is mere hope or expectancy, but is protected by law.
Before Fulfillment The demandability and acquisition or effectivity of the rights arising from the obligation is suspended. Anything paid by mistake during such time may be recovered. After Fulfillment The obligation arises or becomes effective. The obligor can be compelled to comply with what is incumbent upon him.

Principle of Retroactivity in Suspensive Conditions Art.1187, par.1: once the condition is fulfilled its effects must logically retroact to the moment when the essential elements, which gave birth to the obligation have taken place. The condition which is imposed is only accidental, not an essential element of the obligation. Applied only to consensual contracts. No application to real contracts which can only be perfected by delivery.
To Do/Not To Do In obligations to do or not to do, the court shall determine the retroactive effect of the condition that has been complied with. (Art. 1187, par. 2) The power of the court includes the determination whether or not there will be any retroactive effects. This rule shall likewise apply in obligations with a resolutory condition (Art. 1190 par. 3)

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

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

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

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

OBLIGATIONS

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

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Chapter III. DIFFERENT KINDS of OBLIGATIONS needed to make the obligation demandable is that the sale be consummated and the price thereof remitted to the islands. There were still other conditions that had to concur to effect the sale, mainly that of the presence of a buyer, ready, able and willing to purchase the property under the conditions set by the intestate.

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

3. Potestative Condition
Exclusively upon the Creditors Will Exclusively upon the Debtors Will in case of a Suspensive Condition (Art. 1182) Condition and obligation are void because to allow such condition would be equivalent to sanctioning obligations which are illusory. It also constitutes a direct contravention of the principle of mutuality of contracts. Exclusively upon the Debtors Will in case of a Resolutory Condition (Art. 1179, par 2) Condition and obligation is valid because in such situation, the position of the debtor is exactly the same as the position of the creditor when the condition is suspensive. It does not render the obligation illusory.

Condition obligation valid

and is

7. Positive Condition: Obligation shall be extinguished as soon as the time expires or if it becomes indubitable that the event will not take place (Art.1184) 8. Negative Condition: Obligation shall be rendered effective from the moment the time indicated has lapsed, or if it has become evident that the event will not occur (Art.1185) When no period has been fixed, the intention of the parties is controlling, and the time shall be that which the parties may have contemplated, taking into account the nature of the obligation (Art 1185, par. 2).

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

Effects of Loss, Deterioration, and Improvement in Real Obligations Pending the Condition (Art. 1189)
Without Debtors Fault/Act Obligation extinguished With Debtors Fault/Act is Obligation is converted into one of indemnity for damages

Loss

OBLIGATIONS

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

6. Impossible Condition: conditions which are impossible, contrary to good customs, or public policy and those prohibited by law shall annul the obligations which depend upon them (Art. 1183). If pre-existing obligation, only the impossible condition is void, but not the obligation. If divisible obligation, that part which is not affected by the impossible or unlawful condition shall be valid. If the condition is not to do an impossible thing, it shall be considered as not having been agreed upon (Art 1183, par. 2). Consequently, it becomes pure and immediately demandable. If attached to a simple or remuneratory donation (Art. 727), or testamentary disposition (Art. 873), condition is considered as not imposed while the obligation is valid.

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

Chapter III. DIFFERENT KINDS of OBLIGATIONS

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

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OBLIGATIONS

Improvement

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

Loss, defined: when the thing perishes; goes out of commerce; disappears in such a way that its existence is unknown or it cannot be recovered

Where the other party does not oppose the extra-judicial declaration of rescission, such declaration shall produce legal effect. Effect is retroactive therefore invalidating and unmaking the juridical tie between the contracting parties, leaving things in their status before the celebration of the contract.

III. Obligations with a Period


Period or Term (Asked in 84, 86 and 91): Interval of time, which either suspends demandability or produces extinguishment. The period must be: future, certain, and possible (Tolentino, 1987). Fortuitous event does not interrupt the running of the period. It only relieves the contracting parties from the fulfillment of their respective obligations during the period. Kinds of Period (Art. 1193): 1. Ex die - period with a suspensive effect. Obligation becomes demandable after the lapse of the period. 2. In diem - period with a resolutory effect. Obligation is demandable at once but is extinguished upon the lapse of the period.

II. Reciprocal Obligations


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

Art. 1180, Civil Code. When the debtor binds himself to pay when his means permit him to do so, the obligation shall be deemed to be one with a period, subject to the provisions of Article 1197.

Term/Period and Condition Distinguished


Term/Period Interval of time which is future and certain Must necessarily come, although it may not be known when Condition Fact or event which is future and uncertain May or may not happen

CIVIL LAW REVIEWER Exerts an influence upon the time of demandability or extinguishment of an obligation No retroactive effect unless there is an agreement to the contrary When it is left exclusively to the will of the debtor, the existence of the obligation is not affected Exerts an influence upon the very existence of the obligation itself Has retroactive effect

Chapter III. DIFFERENT KINDS of OBLIGATIONS

Benefit of the Period Presumption: Period in an obligation is presumed to be established for the benefit of both the creditor and debtor, UNLESS: If from the tenor of the obligation or other circumstances, it shall appear that the period has been established in favor of either the creditor or debtor (Art. 1196). Period for the Benefit of either Creditor or Debtor
Creditor Creditor may demand the fulfillment or performance of the obligation at any time but the obligor cannot compel him to accept payment before the expiration of the period Debtor Debtor may oppose any premature demand on the part of the oblige for the performance of the obligation, of if he so desires, he may renounce the benefit of the period by performing his obligation in advance

In the cases provided, the obligation becomes immediately due and demandable even if the period has not yet expired. The obligation is thus converted into a pure obligation (Tolentino, 1987).

When court may fix period Art. 1197: as general rule, the court is not authorized to fix a period for the parties (De Leon, 2003).
Araneta v. Phil. Sugar Estates, provides: First, the Court shall determine: If the obligation does not fix a period, but from its nature and circumstances, it can be inferred that a period was intended If the period is void, such as when it depends upon the will of the debtor If the debtor binds himself when his means permit him to do so. Second, it must decide what period was probably contemplated by the parties.

IV. Alternative Obligations


Alternative Obligations Several objects are due May be complied with by delivery of one of the objects or by performance of one of the prestations which are alternatively due Choice may pertain to debtor, creditor, or third person Loss/impossibility of all objects/prestations due to fortuitous event shall extinguish the obligation. The loss/impossibility of one of the things does not extinguish the obligation. Culpable loss of any of the objects alternatively

and

Facultative

Facultative Obligations Only one object is due May be complied with by the delivery of another object or by the performance of another prestation in substitution of that which is due Choice pertains only to the debtor

The only action that can be maintained under Art. 1197 is the action to ask the courts to fix the term within which the debtor must comply with his obligation. The fulfillment of the obligation itself cannot be demanded until after the court has fixed the period for compliance, therewith, and such period has arrived.

Loss/impossibility of the object/prestation due to fortuitous event is sufficient to extinguish the obligation

Culpable loss of the object which the debtor

OBLIGATIONS

When it is left exclusively to the will of the debtor, the very existence of the obligation is affected

Art. 1197 does not apply to contract of services and to pure obligations. The court, however, to prevent unreasonable interpretations of the immediate demandability of pure obligations, may fix a reasonable time in which the debtor may pay. (Tolentino, 1987) When Debtor Loses Right to Use Period Art.1198: I GIV A LA 1. Debtor becomes Insolvent, unless he gives a guaranty or security for his debt, after obligation is contracted 2. Debtor fails to furnish the Guaranties or securities promised 3. Debtor by his own acts Impaired said guaranties or securities after their establishment, and when through a fortuitous event they disappear, unless he immediately gives new one equally satisfactory 4. Debtor Violates any undertaking, in consideration of which the creditor agreed to the period 5. Debtor attempts to Abscond 6. By Law or stipulation 7. Parties stipulate an Acceleration Clause

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CIVIL LAW REVIEWER due before the choice is made may give rise to liability on the part of the debtor may deliver in substitution before the substitution is effected does not give rise to any liability on the part of the debtor

Chapter III. DIFFERENT KINDS of OBLIGATIONS

Effect of Loss of Objects Art. 1204: Debtors Choice


All Lost Fortuitous Event Debtor is released from the obligation Debtors Fault Creditor shall have a right to indemnity for damages based on the value of the last thing which disappeared or service which become impossible Debtor to deliver that which the creditor shall choose from among the remainder without damages Debtor to deliver that which remains

A. Alternative Obligations Several prestations are due but the performance of one is sufficient (De Leon, 2003). Right of Choice Art. 1200: to the debtor, UNLESS: 1. when it is expressly granted to the creditor 2. when it is expressly granted to a third person Limitations to the right of choice 1. impossible prestations 2. unlawful prestations 3. those which could not have been the object of the obligation 4. only one prestation practicable (Art. 1202) (De Leon, 2003) When choice shall produce effect Art. 1201: Choice shall produce no effect except from the time it has been communicated. The effect of the notice is to limit the obligation of the object or prestation selected. Notice of selection or choice may be in any form provided it is sufficient to make the other party know that the selection has been made. It can be: o oral o in writing o tacit o any other equivocal means Choice of the debtor when communicated to the creditor does not require the latters concurrence. When the choice is rendered impossible through the creditors fault, the debtor may bring an action to rescind the contract with damages (Art.1203). Obligation is converted into a simple obligation when: o When the person who has the right of choice has communicated his choice (Art. 1201) o When only one prestation is practicable (Art. 1202)
Some

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OBLIGATIONS

Debtor to deliver that which he shall choose from among the remainder Debtor to deliver that which remains

One Remains

Art. 1205: Creditors Choice


All Lost Fortuitous Event Debtor is released from the obligation Debtors Fault Creditor may claim the price/value of any of them with indemnity for damages creditor may claim any of those subsisting without a right to damages OR price/value of the thing lost with right to damages Creditor may claim the remaining thing without a right to damages OR the price/value of the thing lost with right to damages

Some

Debtor to deliver that which he shall choose from among the remainder

One Remains

Creditor may claim any of those subsisting without a right to damages OR price/value of the thing lost with right to damages

B. Facultative Obligation Only one prestation has been agreed upon but the debtor may render another in substitution (De Leon, 2003) Effect of Loss of Substitute
Before Substitution is Made If due to bad faith or fraud of obligor: obligor is liable After Substitution is Made The loss or deterioration of the substitute on account of the obligors delay, negligence or fraud

CIVIL LAW REVIEWER If due to the negligence of the obligor: obligor is not liable obligor is liable because once substitution is made, the obligation is converted into a simple one with the substituted thing as the object of the obligation.

Chapter III. DIFFERENT KINDS of OBLIGATIONS

authorize a creditor to demand anything from his co-debtors 5. Defense of res judicata is not extended from one debtor to another Joint Divisible Obligation Art. 1208: Each creditor can demand only for the payment of his proportionate share of the credit, while each debtor can be liable only for the payment of his proportionate share of the debit Presumption: Credit or debt shall be presumed to be divided into as many equal shares as there are creditors or debtors. Joint creditor cannot act in representation of the others, neither can a joint debtor be compelled to answer for the liability of others. Joint Indivisible Obligation Art. 1209: no creditor can act in representation of the other; no debtor can be compelled to answer for the liability of the others. If there are two or more debtors, the fulfillment of or compliance with the obligation requires the concurrence of all the debtors, although each for his own share and for the enforcement of the obligation In case of breach where one of the joint debtors fails to comply with his undertaking, the obligation can no longer be fulfilled or performed. Consequently, it is converted into one of indemnity for damages. In case of insolvency of one of the debtors, the others shall not be liable for his shares. To hold otherwise would destroy the joint character of the obligation.
Joint Divisible Obligations In case of breach of obligation by one of the debtors, damages due must be borne by him alone Joint Indivisible Obligations In case of breach where one of the joint debtors fails to comply with his undertaking, the obligation can no longer be fulfilled or performed. Thus action must be converted into indemnity for damages.

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OBLIGATIONS

V. Joint and Solidary Obligations


A. Joint Obligations One where a concurrence of several creditors, or of several debtors, or of several creditors and debtors, by virtue of which, each of the creditors has a right to demand, and each of the debtors is bound to render compliance with his proportionate part of the prestation which constitute the object of the obligation (Obligacion Mancomunada). Presumption: Obligation is presumed joint if there is a concurrence of several creditors, of several debtors, or of several creditors and debtors in one and the same obligation (Art. 1207). Exceptions: 1. When the obligation expressly stated that there is solidarity 2. When the law requires the solidarity 3. When the nature of the obligation requires solidarity 4. When the nature or condition is imposed upon heirs or legatees, and the testament expressly makes the charge or condition in solidum 5. When the solidary responsibility is imputed by a final judgment upon several defendants Principal Effects of Joint Liability 1. Demand by one creditor upon the debtor, produces the effects of default only with respect to the creditor who demanded and the debtor on whom the demand was made, but not with respect to others 2. Interruption of prescription by the judicial demand of one creditor upon a debtor, does not benefit the other creditors nor interrupt the prescription as to other debtors 3. Vices of each obligation arising from the personal defect of a particular debtor or creditor does not affect the obligation or right of the others 4. Insolvency of a debtor does not increase the responsibility of his co-debtors, nor does it

Plurality of Creditors: If one or some of the creditors demands the prestation, the debtor may legally refuse to deliver to them, he can insist that all the creditors together receive the thing, and if any of them refuses to join the others, the debtor may deposit the thing in court by way of consignation (Tolentino, 1987).

CIVIL LAW REVIEWER

Chapter III. DIFFERENT KINDS of OBLIGATIONS

B. Solidary Obligation An obligation where there is concurrence of several creditors, or of several debtors, or of several creditors and several debtors, by virtue of which, each of the creditors has the right to demand, and each of the debtors is bound to render, entire compliance with the prestation which constitutes the object of the obligation (Obligacion Solidaria).
Indivisibility Refers to the prestation which constitutes the object of the obligation Solidarity Refers to the legal tie or vinculum, and consequently to the subjects or parties of the obligation Plurality of subjects is indispensable When there is liability on the part of the debtors because of the breach, the solidarity among the debtors remains

Plurality of subjects is not required In case of breach, obligation is converted into indemnity for damages because the indivisibility of the obligation is terminated

The indivisibility of an obligation does not necessarily give rise to solidarity. Nor does solidarity itself imply indivisibility. (Art. 1211)

Kinds of Solidary Obligations 1. Active (solidarity among creditors): Each creditor has the authority to claim and enforce the rights of all, with the resulting obligation of paying everyone of what belongs to him. Creation of a relationship of mutual agency among co-creditors.

A solidary creditor cannot assign his rights without the consent of the others. (Art. 1213) Each debtor may pay to any solidary creditor, but if any demand, judicial or extrajudicial, has been made by one of them, payment must be made to him. (Art. 1214) 2. Passive (solidarity among debtors): Each debtor can be made to answer for the others, with the right on the part of the debtor-payor to recover from the others their respective shares. Creation of a relationship of mutual guaranty among co-debtors The total remission of the debt in favor of a debtor releases all the debtors All the debtors are liable for the loss of the thing due, even if such loss is caused by the fault of only one of them and for delay, even if it is caused by just one of them The interruption of prescription as to one debtor affects all the others; but the renunciation by one debtor of prescription already had does not prejudice the others 3. Mixed: Solidarity among creditors and debtors Solidarity is not destroyed by the fact that the obligation of each debtor is subject to different conditions or periods. The creditor can commence an action against anyone of the debtors for the compliance with the entire obligation minus the portion or share which corresponds to the debtor affected by the condition or period.

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OBLIGATIONS

____________________________________________________________________________________
Effects of Modes of Extinguishment Assignment of Rights in Solidary Obligations The solidary creditor cannot assign his right because it is predicated upon mutual confidence, UNLESS, the (1) the assignment is to a co-creditor; (2) assignment is with consent of co-creditor Compensation & Confusion If it is partial, the rules regarding application of payment shall apply (w/o) prejudice to the right of other creditors who have not caused the confusion or compensation to be reimbursed to the extent that their rights are diminished or Loss or Impossibility If not debtors fault, the obligation is extinguished If thru debtors OR fortuitous event after delay, the obligation is converted into indemnity for damages but the solidary character of the obligation remains.

Novation If prejudicial, the solidary creditor who effected the novation shall reimburse the others for damages incurred by them; If beneficial and secured by one, he shall be liable to the others for the share (obligation & benefits) which

Remission If entire obligation, obligation is totally extinguished. If for the benefit of one of the debtors covering his entire share, he is completely released from the creditor/s. If for the benefit of one of the debtors and it covers only part

CIVIL LAW REVIEWER corresponds to them If by substituting the debtor, the solidary creditor who effected the novation is liable for the acts of the new debtor in deficiency or damages If by subrogating a third person in creditors rights, the obligation is not in reality extinguished as the relation between the other creditors and the debtor/s is maintained. affected If total, the obligation is extinguished, what is left is the ensuing liability for reimbursement

Chapter III. DIFFERENT KINDS of OBLIGATIONS of his share, his character as a solidary debtor is not affected.

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OBLIGATIONS

Effects of Prejudicial and Beneficial Acts (Art.1212) 1. Each one of the solidary creditors may do whatever may be useful or beneficial to the others, but not anything which may be prejudicial to the latter. 2. As far as the debtors are concerned, a prejudicial act performed by a solidary creditor is binding. 3. As between the solidary creditors, the creditor who performed such act shall incur the obligation of indemnifying the others for damages. Defenses Available to a Solidary Debtor (Art. 1222) 1. Those derived from the nature of the obligation 2. Those personal to him 3. Those pertaining to his own share 4. Those personally belonging to other codebtors but only as regards that part of the debt for which the latter are responsible. Effects
Demand Upon a Solidary Debtor The demand made against one of them shall not be an obstacle to those which may subsequently be directed against the others so long as the debt has not been fully collected. (Art. 1216) Payment by a Debtor Full payment made by one of the solidary debtors extinguishes the obligation. (Art. 1217)

The creditor may proceed against any one of the solidary debtors or all simultaneously (Art. 1216) A creditors right to proceed against the surety exists independently of his right to proceed against the principal

If two or more solidary debtors offer to pay, the creditor may choose which offer to accept. (Art. 1217) The solidary debtor who made the payment shall have the right to claim from his co-debtors the share which corresponds to them with interest, UNLESS barred by prescription or illegality. (Art. 1218)

When a solidary debtor pays the entire obligation, the resulting obligation of the codebtors to reimburse him becomes joint. If payment was made before the debt became due, no interest during the intervening period may be demanded. (Art. 1217 par. 2) When one of the solidary debtors cannot reimburse his share to the debtor paying the obligation due to insolvency, such share shall be borne by all his co-debtors, in proportion to the debt of each. (Art. 1217, par. 2)

Inchausti v. Yulo, (1914): Debtors obligated themselves solidarily, so creditor can bring its action against any of them. Remission of any part o fthe debt, made by the creditor in favor of one of the solidary debtors, inures to the benefit of the rest of them.

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Chapter III. DIFFERENT KINDS of OBLIGATIONS

VI. Divisible and Indivisible Obligations


A. Divisible Obligations One which is susceptible of partial performance; that is, the debtor can legally perform the obligation by parts and the creditor cannot demand a single performance of the entire obligation (Tolentino, 1987). B. Indivisible Obligations One which cannot be validly performed in parts (Tolentino, 1987). Divisibility/indivisibility refers to the performance of the prestation and not to the thing which is the object thereof. The thing may be divisible, yet the obligation may be indivisible. When the obligation has for its object the execution of a certain number of days of work, the accomplishment of work by metrical units, or analogous things which by their nature are susceptible of partial performance, it shall be divisible (Art.1225, par. 2). When there is plurality of debtors and creditors, the effect of divisibility/indivisibility of the obligation depend upon whether the obligation is joint or solidary. A joint indivisible obligation give rise to indemnity for damages from the time anyone of the debtors does not comply with is undertaking. (Art. 1224) Effect Creditor cannot be compelled partially to receive the prestation in which the obligation consists; neither may the debtor be required to make the partial payment (Art. 1248), UNLESS: The obligation expressly stipulates the contrary The different prestations constituting the objects of the obligation are subject to different terms and conditions The obligation is in part liquidated and in part unliquidated
3.

If the principal obligation is void, penal clause shall also be void. However, the nullity of the penal clause does not carry with it the nullity of the principal obligation (Art.1230).

Purposes of Penalty
1. 2. Funcion coercitiva de garantia - to insure the performance of the obligation. Funcion liquidatoria - to liquidate the amount of damages to be awarded to the injured party in case of breach of the principal obligation (compensatory). Function estrictamente penal - to punish the obligor in case of breach of the principal obligation (punitive).

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OBLIGATIONS

Effects of Penalty 1. The penalty shall substitute the indemnity for damages and payment of interest in case of non-compliance (Art. 1226), UNLESS:
a. b. c. There is a stipulation to the contrary The obligor refuses to pay the penalty The obligor is guilty of fraud

2. Debtor cannot exempt himself from the performance of the principal obligation by paying the stipulated penalty unless this right has been expressly reserved for him (Art. 1227). 3. Creditor cannot demand the fulfillment of the principal obligation and demanding the satisfaction of the penalty at the same time unless the right has been clearly granted to him (Art. 1227). Tacit or implied grant is admissible.
a. If creditor has chosen fulfillment of the principal obligation and performance thereof become impossible without his fault, he may still demand the satisfaction of the penalty. If there was fault on the part of the debtor, creditor may demand not only satisfaction of penalty but also the payment of damages. If creditor chooses to demand the satisfaction of the penalty, he cannot afterwards demand the fulfillment of the obligation.

b.

c.

VII. Oblligations with a Penal Clause


Penal Clause: An accessory undertaking to assume greater liability in case of breach (De Leon, 2003). It is attached to an obligation in order to ensure performance. The enforcement of the penalty can be demanded by the creditor only when the non-performance is due to the fault or fraud of the debtor.

Proof of Actual Damage Art. 1228: Proof of actual damages is not necessary is applicable only to the general rule stated in Art. 1226 and not to the exceptions. The penalty is exactly identical with what is known as liquidated damages in Art. 2226. When Penalty may be Reduced Art. 1229:
1. 2. 3. If the principal obligation has been partly complied with. If the principal obligation has been irregularly complied with. If the penalty is iniquitous or unsconscionable even if there has been no performance.

CIVIL LAW REVIEWER

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

Chapter IV. Obligations


I. II.

Extinguishment

of

singular. There must be full and faithful compliance with the terms of the contract.

B. Payment by Cession (Art. 1255)


PAYMENT OR PERFORMANCE LOSS OF THE THING DUE OR IMPOSSIBILITY OF PERFORMANCE III. CONDONATION OR REMISSION OF THE DEBT IV. CONFUSION OR MERGER OF RIGHTS V. COMPENSATION VI. NOVATION

Act whereby a debtor abandons all his property to his creditors, so that the latter may apply the proceeds (of its sale) to their credits.
OBLIGATIONS

C. Dation in payment (Art. 1245) Delivery and transmission of ownership of a thing by the debtor to the creditor as an accepted equivalent of the performance of the obligation (dacion en pago).
Dation in payment In favor of only one creditor Payment extinguishes the obligation to the extent of the value of the thing delivered, unless the parties agree that the obligation be totally extinguished Transfer of ownership of thing alienated to creditor Payment by cession There are various creditors Extinguishes credits only up to the extent of proceeds from sale of assigned property, unless otherwise agreed upon Only possession and administration with authorization to convert property to cash with which the debts shall be paid Assignment presupposes insolvency of debtor. Assignment involves all the property of the debtor.

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I.

Payment or Performance

Art. 1232, Civil Code. Payment means not only delivery of money but also performance, in any manner, of the obligation.

See Diagrams of Prof. Labitag at the end section of Obligations. SPECIAL FORMS OF PAYMENT A. Application of Payment (Art. 1252) Designation of the debt to which should be applied a payment made by a debtor who owes several debts to the same creditor Rules on Application 1. Preferential right of debtor - debtor has the right to select which of his debts he is paying. 2. The debtor makes the designation at the time he makes the payment 3. If not, the creditor makes the application, by so stating in the receipt that he issues, unless there is cause for invalidating the contract. 4. If neither the creditor nor debtor exercises the right to apply, or if the application is not valid, the application is made by operation of law. 5. If debt produces interest - payment not deemed applied to the principal unless interests are covered. 6. When no application can be inferred from the circumstances of payment, it is applied to: to the most onerous debt of the debtor; or if debts due are of the same nature and burden, to all the debts in proportion 7. Rules of application of payment may not be invoked by a surety or solidary guarantor.
Reparations Commission vs. Universal Deep Sea Fishing Corp. (1978): Rules on application of payment cannot be made applicable to a person whose obligation as a mere surety is both contingent and

Not necessarily in state of financial difficulty Assignment of only some specific thing

D. Tender of payment and consignation 1. Tender of payment: Manifestation made by debtor to creditor of his desire to comply with his obligation, with offer of immediate performance Preparatory act to consignation Extrajudicial in character 2. Consignation: Deposit of the object of obligation in a competent court in accordance to the rules prescribed by law, whenever the creditor unjustly refuses payment or because of some circumstances which render direct payment to the creditor impossible or inadvisable. Principal act which constitutes a form of payment. Judicial in character.

CIVIL LAW REVIEWER

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

Effects of Withdrawal by Debtor Arts. 1260- 1261 1. Before approval of the court - Obligation remains in force.

Art. 1259, Civil Code. Expenses of consignation, when properly made, shall be charged against the creditor.

Requisites and Effects Application of Payment Requisites 1. Plurality of debts 2. Debts are of the same kind 3. Debts are owed to the same creditor and by the same debtor 4. All debts must be due 5. Payment made is not sufficient to cover all debts Effects Payment of debt designated as to corresponding amount Cession Requisites 1. Plurality of debts 2. Plurality of creditors 3. Partial insolvency of the debtor 4. Abandonment of the totality of the debtors properties for the benefit of the creditors 5. Acceptance by the creditors Dation Requisites 1. Should not be prejudicial to other creditors 2. Should not constitute a pactum commissorium Tender and Consignation Requisites 1. There is a debt due 2. consignation is made because of some legal cause 3. previous notice of consignation was given to those persons interested in the performance of the obligation 4. amount or thing due was placed at the disposal of the court 5. after the consignation has been made, the persons interested were notified thereof

Effects Assignment liberates debtor up to the amount of the net proceeds of the sale of his assets Assignment does not vets title to the property in the creditors, who are only authorized to sell it.

Effects Extinguishment of debt from as an equivalent of the performance of the obligation

Effects If accepted by the creditor or declared properly made by the Court: 1. Debtor is released in same manner as if he had performed the obligation at the time of consignation 2. Accrual of interest is suspended from the moment of consignation. 3. Deterioration or loss of the thing or amount consigned, occurring without the fault of debtor, must be borne by creditor from the moment of deposit 4. Any increment or increase in the value of the thing after consignation inures to the benefit of the creditor

OBLIGATIONS

When Tender and Refusal Not Required (Art. 1259) 1. Creditor is absent or unknown, or does not appear at the place of payment 2. Creditor is incapacitated to receive the thing due at time of payment 3. Without just cause, creditor refuses to give receipt 4. Two or more persons claim the same right to collect 5. Title of the obligation has been lost

2. After approval of the court or acceptance by the creditor, with the consent of the latter Obligation remains in force, but guarantors and co-debtors are liberated. Preference of the creditor over the thing is lost. 3. After approval of the court or acceptance by the creditor, and without creditors consent Obligation subsists, without change in the liability of guarantors and co-debtors, or the creditors right of preference.

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Chapter IV. EXTINGUISHMENT of OBLIGATIONS

II. Loss or Impossibility


(Asked in 83, 84, 85, and 94) A. Loss A thing is lost when it perishes, goes out of commerce or disappears in such a way that its existence is unknown or it cannot be recovered (Art. 1189, par. 2) Effects of Loss
Obligation to Deliver a Specific Thing Extinguishment of the obligation if the thing was destroyed w/o fault of the debtor and before he has incurred delay. Obligation to Deliver a Generic Thing Loss of a generic thing does not extinguish an obligation, UNLESS, Delimited generic things: kind or class is limited itself, and the whole class perishes

Loss of the thing when in possession of the debtor: Loss was due to the debtors fault. Burden of explaining the loss of the thing falls upon him, UNLESS, due to a natural calamity: earthquake, flood, storm, etc.
Subjective impossibility: Where there is no physical or legal loss, but the thing belongs to another, the performance by the debtor becomes impossible. The debtor must indemnify the creditor for damages.

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OBLIGATIONS

B. Impossibility of Performance (Arts. 12661267, CC) When prestation becomes legally or physically impossible (by fortuitous event or force majeure), the debtor is released.Impossibility must have occurred without fault of debtor, and after the obligation has been constituted. PARTIAL IMPOSSIBILITY 1. Courts shall determine whether it is so important as to extinguish the obligation. 2. If debtor has performed part of the obligation when impossibility occurred, creditor must pay the part done as long as he benefits from it. 3. If debtor received full payment from creditor, he must return excess amount corresponding to part which was impossible to perform. Doctrine of Unforeseen Events When the service has become so difficult as to be manifestly beyond the contemplation of all the parties, the obligor may be released in whole or in part (De Leon, 2003). Requisites: 1. Event could not have been foreseen at the time of the constitution of the contract. 2. Event makes performance extremely difficult but not impossible. 3. Event not due to any act of the parties. 4. Contract is for future prestation.

Action against 3 persons - creditor shall have all the rights of action the debtor may have rd against 3 persons by reason of the loss. Presumption: The loss was due to the debtors fault, UNLESS: 1. Law provides that the debtor shall be liable even if the loss is due to fortuitous events (Arts. 1942, 1979, 2147, 2159) 2. Obligor is made liable by express stipulation 3. Nature of the obligation requires an assumption of risk 4. Fault or negligence concurs with the fortuitous event 5. Loss occurs after delay 6. Debtor has promised to deliver the same thing to two or more different parties 7. Obligation arises from a criminal act 8. Borrower in commodatum: saves his own things and not the thing of the creditor during a fortuitous event In Reciprocal Obligations Extinguishment of the obligation due to loss of the thing or impossibility of performance affects both the creditor and debtor; the entire juridical relation is extinguished. Partial loss Art. 1264: Partial loss due to a fortuitous event does not extinguish the obligation; thing due shall be delivered in its present condition, without any liability on the part of the debtor, UNLESS, the obligation is extinguished when the part lost was of such extent as to make the thing useless.

rd

III. Condonation or Remission of the Debt


CONDONATION: An act of liberality, by virtue of which, without receiving any equivalent, creditor renounces the enforcement of the obligation. The obligation is extinguished either in whole or in such part of the same which to remission refers.

CIVIL LAW REVIEWER

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

Requisites 1. Debt must be existing and demandable 2. Renunciation must be gratuitous; without any consideration 3. Debtor must accept the remission Effect Art. 1273: Renunciation of the principal debt shall extinguish the accessory obligations, but remission of the latter leaves the principal obligation in force. Presumptions Arts. 1271, 1272, 1274: Whenever the private document in which the debt is found in the possession of the debtor, it shall be presumed that the creditor delivered it voluntarily, unless contrary is proved. Delivery of a private document evidencing credit, made voluntarily by the creditor to the debtor, implies the renunciation of the action of creditor against the latter. Kinds 1. As to form (Art. 1270) Express: made formally; in accordance with forms of ordinary donations Implied: inferred from the act of the parties 2. As to extent Total: entire obligation Partial: may refer only to amount of indebtedness, or to an accessory obligation, or to some other aspect of the obligation 3. As to constitution Inter vivos: effective during the lifetime of the creditor Mortis causa: effective upon death of the creditor; must be contained in a will or testament

Effects Arts. 1275- 1277: 1. The obligation is extinguished from the time the characters of the debtor and creditor are merged in the same person. 2. In joint obligations, confusion does not extinguish the obligation except as regards the corresponding share of the creditor or debtor in whom the two characters concur. 3. In solidary obligations, confusion in one of the solidary debtors extinguishes the entire obligation. 4. Obligation is not extinguished when confusion takes place in the person of subsidiary debtor (e.g. guarantor), but merger in the person of the principal debtor shall benefit the former.

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OBLIGATIONS

V. Compensation
COMPENSATION: Offsetting of two obligations which are reciprocally extinguished if they are of the same value, or extinguished to the concurrent amount if of different values. (Asked in 80, 81, 98, and 02)
Compensation There must always be 2 obligations There are 2 persons who are mutually debtors and creditors of each other in 2 separate obligations, each arising from the same cause. Confusion Involves only one obligation There is only one person whom the characters of the creditor and debtor meet

IV. Confusion or Merger of Rights


CONFUSION: The meeting in one person of the qualities of creditor and debtor of the same obligation. Requisites 1. It should take place between principal debtor and creditor 2. It must be complete and definite- Parties must meet all the qualities of creditor and debtor in the obligation/ in the part affected.

Kinds 1. As to extent Total: Debts are of the same amount Partial: Amounts are not equal 2. As to origin Legal: takes place by operation of law Conventional: parties agree to compensate their mutual obligations even when some requisite in Art. 1279 is lacking (Art. 1282). Judicial: decreed by court when there is counterclaim; effective upon final judgment (Art. 1283). Facultative: when it can be claimed by one of the parties who, however, has the right to object to it.

CIVIL LAW REVIEWER Requisites Each obligor is bound principally, and at the same time a principal creditor of the other Both debts must consist in a sum of money, or if the things due are FUNGIBLE, of the same kind & quality Both debts are due Debts are liquidated and demandable There must be no retention or controversy over either of the debts, rd commenced by 3 persons and communicated in due time to the debtor Compensation is not prohibited by law Effects Effects rise from the moment all the requisites concur. Debtor claiming its benefits must prove compensation; once proven, effects retroact from the moment when the requisites concurred. Both debts are extinguished to the concurrent amount, eventhough the creditors and debtors are not aware of the compensation. Accessory obligations are also extinguished.

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

1.

1.

VI. Novation
NOVATION: Extinguishment of an obligation by the substitution or change of the obligation by a subsequent one which extinguishes or modifies the first either by changing the object or principal conditions, or by substituting the person of the debtor, or by subrogating a third person in the rights of the creditor. A juridical act of dual functionit extinguishes an obligation, and at the same time, it creates a new one in lieu of the old. (Asked in 78, 88, 94 and 01) Requisites 1. A previous valid obligation 2. Agreement of all the parties to the new obligation 3. Extinguishment of the old obligation 4. Validity of the new obligation Novation is not presumed. Express novation: Parties must expressly disclose their intent to extinguish the old obligation by creating a new one. Implied novation: No specific form is required. There must be incompatibility between the old and new obligation or contract. (Asked in 79, 82, 88, and 94)
California Bus Line v. State Investment (2003): In the absence of an unequivocal declaration of extinguishment of the pre-existing obligation, only proof of incompatibility between the old and new obligation would warrant a novation by implication. The restructuring agreement merely provided for a new schedule of payments and authority giving Delta to take over management and operations of CBLI in case it fails to pay installments. There was no change in the object of prior obligations.

2.

2.

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OBLIGATIONS

3.

3. 4. 5.

4.

6.

Compensation is prohibited in: 1. Contracts of depositum 2. Contracts of commodatum 3. Future support due by gratuitous title 4. Civil liability arising from a penal offense 5. Obligations due to the government 6. Damage caused to the partnership by a partner ASSIGNMENT OF CREDIT (Art. 1285): No effect and does not bind the debtor unless and until the latter is notified of the assignment or learns of it.
With Debtors Consent Debtors consent to assignment of credit constitutes a waiver of compensation, unless he reserved his right to compensation. With Debtors Knowledge Debtor may set up compensation of debts (maturing) before the assignment of credit but not of subsequent ones Without Debtors Knowlege Debtor may setup compensation of all credits (maturing) prior to the assignment and also latter ones until he had knowledge of the assignment.

Test of Incompatibility Whether or not the old and new obligation can stand together, each one having an independent existence. No incompatibility exists when they can stand together. Hence, there is no novation. Incompatibility exists when they cannot stand together. Hence, there is novation. Effects
In General If Original Obligation is Void Novation is void if the original obligation was void, except when annulment may be claimed only by the If New Obligation is Void New obligation is void, the old obligation subsists, unless the parties intended that the former realations

Facultative compensation: Compensation which can only be set up at the option of a creditor, when legal compensation cannot take place because some legal requisites in favor of the creditor are lacking. Creditor may renounce his right to compensation, and he himself may set it up.As opposed to conventional compensation, facultative compensation is unilateral and does not depend upon the agreement of the parties.

1.

Old obligation is extinguished and replaced by the new one stipulated.

CIVIL LAW REVIEWER


debtor, or when ratification validates acts that are voidable. (Art. 1298) 1. Original obligation is void: No novation 2. Original obligation voidable: Effective if contract is ratified before novation shall be extinguished in any event. (Art. 1297) 1. New obligation void: No novation 2. New obligation voidable: Novation is effective

Chapter IV. EXTINGUISHMENT of OBLIGATIONS Expromision Initiative for change does not emanate from the debtor, and may Even be made without his knowledge. Delegacion Debtor (delegante) offers or initiates the change, and the creditor rd (delegatorio) accepts 3 person (delegado) as consenting to the substitution Requisites 1. Consent of old debtor, new debtor, and creditor

Accessory obligations are also extinguished, but may subsist only insofar as they may rd benefit 3 persons who did not give their consent to the novation OR may not be affected upon agreement between the parties.

Original or new obligation with suspensive or resolutory condition Art. 1299: If original obligation was subject to a suspensive or resolutory condition, the new obligation shall be under the same condition, unless it is otherwise stipulated.
Compatible Conditions Fulfillment of both conditions: new obligation becomes demandable Fulfillment of condition concerning the original obligation: old obligation is revived; new obligation loses force Fulfillment of condition concerning the new obligation: no novation; requisite of a previous valid and effective obligation lacking Incompatible Conditions Original obligation is extinguished, while new obligation exists Demandability shall be subject to fulfillment/ nonfulfillment of the condition affecting it

Requisites 1. Consent of the creditor and the new debtor 2. Knowledge or consent of the old debtor is not required Effects 1. Old debtor is released 2. Insolvency of the new debtor does not revive the old obligation in case the old debtor did not agree to expromision 3. If with knowledge and consent of old debtor, new debtor can demand reimbursement the entire amount paid and w/ subrogation of creditors rights 4. If without knowledge of the old debtor, new debtor can demand reimbursement only up to the extent that the latter has been benefited w/o subrogation of creditors rights

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OBLIGATIONS

Effects 1. Insolvency of the new debtor revives the obligation of the old debtor if it was anterior and public, and known to the old debtor. 2. New debtor can demand reimbursement of the entire amount he has paid, from the original debtor. He may compel creditor to subrogate him to all of his rights.

2. Subrogation of a 3 person in the rights of the creditor a. Conventional subrogation: by agreement of the parties; Requisites: the consent of the 3 person, and of the original parties (Art. 1301).
Conventional subrogation Debtors consent is necessary Extinguishes an obligation and gives rise to a new one Assignment of credit Debtors consent is not required Refers to the same right which passes from one person to another, without modifying or extinguishing the obligation
rd

rd

OBJECTIVE NOVATION 1. Change of the subject matter 2. Change of causa or consideration 3. Change of the principal conditions or terms SUBJECTIVE NOVATION 1. Substitution of the Debtor: Consent of creditor is an indispensable requirement both in expromision and delegacion.

CIVIL LAW REVIEWER Defects/ vices in the old obligation are cured Defects/ vices in the old obligation are not cured

Chapter IV. EXTINGUISHMENT of OBLIGATIONS

b. Legal subrogation: by operation of law Legal subrogation is not presumed, except in the following circumstances: 1. When creditor pays another creditor who is preferred, even without the debtors knowledge rd 2. When a 3 person not interested in the obligation pays with the express or tacit approval of the debtor 3. When, even without the knowledge of the debtor, a person interested in the fulfillment of the obligation without prejudice to the effects of confusion as to the latters share effects of confusion as to the latters share Effects
Total 1. Transfers to the person subrogated the credit with all the rights thereto appertaining, either against the debtor or rd 3 persons. 2. Obligation is not extinguished, even if the intention is to pay it. 3. Defenses against the old creditor are retained, unless waived by the debtor Partial 1. A creditor, to whom partial payment has been made, may exercise his right for the remainder, and shall be preferred to the person subrogated in his place in virtue of the partial payment.

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CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

Charts: Payment & Performance


by Professor Eduardo A. Labitag UP College of Law (Asked in 75, 84, 88, 95, and 98)

WHO CAN PAY?


1. 2. 3. 4. In GENERAL Debtor or his: Authorized Agent Heir Successor-in- interest

3rd PERSON
Interested in obligation (creditor cannot refuse to accept valid payment) Not interested in obligation (creditor may refuse to accept payment [1236]) 3rd person (whether or not interested in obligation) does not intend to be reimbursed (1238)

Payment w/ or w/o debtors knowledge Effects: 1. Valid payment; obligation extinguished 2. Debtor to reimburse fully 3rd person interested in obligation 3. 3rd person subrogated to rights of creditor

Payment with debtors consent (express/tacit) Effects: 1. 3rd person is entitled to full reimbursement 2. Legal subrogation (novation) 3rd person is subrogated/step into the shoes of creditor

Payment without debtors knowledge or against the will of D Effects: 3rd person can only be reimbursed only insofar as payment has been beneficial to debtor(1236, 2nd. par.) burden of proof on 3rd person cannot compel C to subrogate him (1237)

Debtor must give consent

Effects: 1. Payment is deemed as a donation/offer of donation 2. Donation must be in proper form (if above P5Th must be in writing

In Obligation to Give, if PAYOR has

No free disposal & no capacity to alienate Minor who entered contract w/o consent of parent or guardian

Effects: Payment is invalid w/o prejudice to natural obligations Effects: No right to recover fungible thing delivered to creditor who spent or consumed it in good faith 114

OBLIGATIONS

Legend: G = General Rule = Exception C = Creditor D = Debtor

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CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

TO WHOM PAYMENT MAY BE MADE


In GENERAL

Creditor /person in whose favor obligation was constituted, or His successor in interest, or Any person authorized to received payment (1240)

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115

Payment to Incapacitated Creditor (1241)

G NOT valid 1) If C has kept the thing delivered 2) Insofar as payment benefited C

Payment to 3rd PERSON (1241, 2nd par.)

G VALID if 3rd person proves that it redounded to Cs benefit

Exception to proof of benefit: .3rd person acquires Cs rights after payment .C ratifies payment .Cs conduct leads D to believe that 3rd person had authority to receive payment .Assignment of credit without notice to D

In Case of ACTIVE SOLIDARITY

If no demand is made, D may pay to ANY of solidary creditors

If any judicial/extrajudicial demand is made by any one of the creditors who made the demand (1214)

Effect: No extinguishment If payment is made to a WRONG PARTY

Extinguishment if fault or negligence can be imputed to creditor

Payment in good faith to person in possession of credit = debtor released (1242)

If debtor pays creditor after being judicially ordered to retain debt = payment not valid (1243) Payment made in good faith to any person in possession of credit Effect: D released (1242)

CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

WHAT IS TO BE PAID? IDENTITY

In GENERAL The very prestation (thing or service Give: 1. Specific thing itself 2. Accessions & accessories 3. If with loss, improvements, deterioration Apply Art. 1189 Debtor cannot compel C to receive a different specific thing even latter has same value or more valuable than that due (1244)

G: C cannot demand a thing of superior quality; can demand inferior D cannot deliver a thing of inferior quality Unless quality & circumstances have been stated (1246) purpose and other circumstances of obligation considered Obligation to pay sum of money, if D alienates property to C = DACION EN PAGO governed by law on SALES (1245) Identity: The very same act promised to be done or not to be done Substitution cannot be done against Cs will (1244, 2nd par.)

Obligation to give a GENERIC thing

Obligation to DO or NOT to DO

Payment of MONEY

1. Payment of domestic obligations in Phil. Currency Exceptions under R.A. 4100; R.A. 8183 Foreign currency if agreed to by parties 2. In case of extraordinary inflation/deflation, basis of payment is value of currency at the time of obligation was established (1250) No interest (i.e., for the use of someones money) shall be due unless expressly stipulated in writing

Payment of INTEREST

OBLIGATIONS

Obligation to give a SPECIFIC thing

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CIVIL LAW REVIEWER HOW IS PAYMENT TO BE MADE INTEGRITY


In GENERAL 1233 Complete delivery or rendering 1248 C cannot be compelled to received partial prestations; D cannot be compelled to give partial payments Exceptions: 1. Contrary stipulation 2. When debt is in part liquidated & in part unliquidated 3. When there are several subjects/parties are bound under different terms/conditions

Charts: PAYMENT & PERFORMANCE

Effect if C accepts incomplete performance (1235): WAIVER

In Case of SUBSTANTIAL PERFORMANCE IN GOOD FAITH (1234)

D may recover as if there had been complete fulfillment - Less damages suffered by C

PRESUMPTIONS in payment of INTERESTS & INSTALLMENTS

INTEREST If principal amount is received w/o reservation as to interest interest is presumed to have been paid (1176; 1253) INSTALLMENTS If a latter installment of a debt is received w/o reservation to prior installments Prior installments are presumed paid (1176, 2nd par.)

OBLIGATIONS

May be express or implied If C knows the incompleteness/ irregularity of the payment, and he still accepts it w/o objection, then obligation is deemed extinguished (estoppel) * There must be intent to waive Except if C has no knowledge of the incompleteness

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CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

WHERE PAYMENT IS TO BE MADE (ART. 1251)

In GENERAL In the place designated in the obligation

If no place is designated

In GENERAL Extrajudicial expenses required by the payment shall be borne by DEBTOR

In any other case Domicile of debtor

Unless otherwise stipulated

If D changes his domicile in bad faith or after he has incurred in delay Additional expenses shall be borne by D

As to JUDICIAL expenses Rules of Court shall govern

OBLIGATIONS

If obligation is to deliver a SPECIFIC thing Place of performance is wherever the thing was at the moment obligation was constituted Unless there is a contrary express stipulation

Expenses Payment

of

Making

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CIVIL LAW REVIEWER

Charts: PAYMENT & PERFORMANCE

WHEN PAYMENT IS TO BE MADE?

When obligation is due and demandable but D may pay before due date if period is for benefit of D In GENERAL Payment to be made when the creditor makes a demand (judicially/extrajudicially) Exceptions wherein demand of creditor is not necessary for delay to exist: 1. When obligation/law expressly declares 2. Nature & circumstances of the obligation designation of time is controlling motive or establishment of contract 3. When demand would be useless

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OBLIGATIONS

WHY SHOULD PAYMENT BE MADE?

Because C may compel D to pay, and failure to pay will allow C to satisfy credit from properties of D that are not exempt from execution

- end of Obligations -

CIVIL LAW REVIEWER

TABLE of CONTENTS

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

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CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS

Prof. Solomon Lumba


Faculty Editor

OBLIGATIONS & CONTRACTS

OBLIGATIONS & CONTRACTS TEAM

Chapter I. General Provisions


I. II. III. IV. CLASSIFICATION ELEMENTS STAGES CHARACTERISTICS

Leo Ledesma
Lead Writer Krizel Malabanan Ivy Velasco Tin Reyes Frances Domingo Hazel Abenoja Writers

Article 1305, Civil Code. A contract is a meeting of minds, between two persons whereby one binds himself, with respect to the other, to give something or to render some service.

CIVIL LAW
Kristine Bongcaron Patricia Tobias
Subject Editors

I.

Classification of Contracts

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

PRINTING & DISTRIBUTION


Kae Guerrero

A. To formation: 1. Consensual: consent is enough; e.g. sale 2. Real: consent and delivery is required; e.g. deposit, pledge 3. Solemn or formal: special formalities are required for perfection e.g. donation of realty B. To relation to other contracts: 1. Principal: may exist alone; e.g. lease 2. Accessory: depends on another contract for its existence; e.g. guaranty 3. Preparatory: a preliminary step towards the celebration of a subsequent contract; e.g. agency C. To nature of vinculum 1. Unilateral: only one party is bound by the prestation; e.g. commodatum 2. Bilateral (synallagmatic): where both parties are bound by reciprocal prestations; e.g. sale D. To fulfillment of prestations 1. Commutative: fulfillment is determined in advance 2. Aleatory: fulfillment is determined by chance E. By equivalence of prestations 1. Gratuitous: no correlative prestation is received by a party 2. Onerous: there is an exchange of correlative prestations 3. Remuneratory: the prestation is based on services or benefits already received F. By the time of fulfillment 1. Executed: obligation is fulfilled at the time contract is entered into 2. Executory: fulfillment does not take place at the time the contract is made G. To their purpose

DESIGN & LAYOUT


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

LECTURES COMMITTEE
Michelle Arias Camille Maranan Angela Sandalo
Heads Katz Manzano Mary Rose Beley Sam Nuez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE


Lilibeth Perez

BAR CANDIDATES WELFARE


Dahlia Salamat

LOGISTICS
Charisse Mendoza

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

CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS

1. Transfer of ownership, e.g. sale 2. Conveyance of Use, e.g. Commodatum 3. Rendition of Service, e.g. agency H. To their subject matter 1. Things, e.g. sale, deposit 2. Services, e.g. agency I. To their designation 1. Nominate: the law gives the contract a special designation or particular name e.g. deposit 2. Innominate: the contract has no special name

III. Stages of Contracts


A. Preparation, conception or generation: period of negotiation and bargaining, ending at the moment of agreement B. Perfection or birth: the moment when the parties come to agree on the terms of the contract C. Consummation or death: the fulfillment or performance of the terms agreed upon

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Article 1305, Civil Code. INNOMINATE CONTRACTS shall be regulated by the stipulations of the parties, by the general provisions of Titles I and II of [the Civil Code], by the rules governing the most analogous nominate contracts, and by the customs of the place.

IV. Charactertics of Contracts (MARCO)


A. MUTUALITY The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them (Art.1308).
Taylor v. Uy Teng Piao, 1922: [BUT] a contract may expressly confer upon one party the right to cancel the contract because the exercise of that right is a fulfillment of the provisions of the contract itself

Classes of Innominate Contracts 1. Do ut des: I give so that you may give 2. Do ut facias: I give so that you may do 3. Facio ut facias: I do so that you may do 4. Facio ut des: I do so that you may give

II. Elements of Contracts


A. Essential: Those without which the contract would not exist (consent, object, causa). B. Natural: Those which are derived from the nature of the contract and ordinarily accompany the same-they are presumed to exist unless the contrary is stipulated e.g. warranty in sales C. Accidental: stipulated
Common Elements Special Elements Example

The release must be binding on both parties. The determination of the performance may rd be left to a 3 person, whose decision shall NOT be binding if: It is evidently inequitable (the courts will decide) The decision had not been made known to both parties (Art.1309)

Those

which

exist

only

if

B. AUTONOMY The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy (Art. 1306).

Solemn Real Consensual Consent, subject matter, causa Formality Donationo f personal property more than P5K Delivery Loan, pledge None Others

C. RELATIVITY Contracts take effect only between parties, their assigns and heirs UNLESS, obligations arising from the contract are not transmissible by their (1) nature, (2) by stipulation or (3) by provision of law. The heir is not liable beyond the value of the property he received from the decedent. (Art. 1311) Exception: Strangers may enforce the contract in their favor in the ff. cases: 1. Stipulations Pour Autrui If a contract should contain some stipulation in favor of a third person, he may demand its fulfilment provided he communicated his

CIVIL LAW REVIEWER

Chapter I. GENERAL PROVISIONS

acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favour upon a third person (Art.1311). Requisites: a. There must be a stipulation in favor of a third person b. The stipulation must be part, not the whole of the contract c. The contracting parties must have clearly and deliberately conferred a favor upon a third person, NOT a mere incidental benefit or interest. d. The third person must have communicated his acceptance to the obligor before its revocation e. No relation of agency exists between any of the parties and the third person favored Florentino v. Encarnacion, 1977: a. Contracts to perform personal acts which cannot be as well performed by others are discharged by the death of the promissor. Conversely, where the service or act is of such a character that it may as well be performed by another, or where the contract, by its terms, shows that performance by others was contemplated, death does not terminate the contract or excuse nonperformance. b. In this case the stipulation is a stipulation pour atrui because the true intent of the parties is to confer a direct and material benefit upon a third party. Accion Directa: Where the statute authorizes the creditor to sue on his debtors contract, e.g. lessor v. sublessee (Art. 1651,1652) (J.B.L. Reyes) 2. Third Person In Possession When the third person comes into possession of the object of a contract creating real rights (Art 1312) 3. Fraud Where the contract is entered into in order to defraud a person (Art. 1313) 4. Tortuous Interference Where the third person induces a contracting party to violate his contract (Art.1314).

Requisites: a. Existence of a valid contract b. Knowledge of the third person of the existence of the contract; and c. Interference by third person without legal justification or excuse D. CONSENSUALITY Contracts are perfected by mere consent and from that moment, the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all consequences which, according to their nature, may be in keeping with good faith, usage and law, (Art.1315) EXCEPT real contracts, such as deposit, pledge and commodatum, are not perfected until the delivery of the object of the obligation. (Tolentino) E. OBLIGATORY FORCE
Art. 1159, Civil Code. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. Art. 1308, Civil Code. The contract must bind both contracting parties; its validity or compliance cannot be left to the will of one of them. Art. 1315, Civil Code. Contracts are perfected by mere consent, and from that moment the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all the consequences which, according to their nature, may be in keeping with good faith, usage and law. Art. 1356, Civil Code. Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present. However, when the law requires that a contract be in some form in order that it may be valid or enforceable, or that a contract be proved in a certain way, that requirement is absolute and indispensable. In such cases, the right of the parties stated in the following article cannot be exercised.

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Chapter II. ESSENTIAL REQUISITES

Chapter II. Essential Requisites


I. CONSENT II. OBJECT III. CAUSE

I.

Consent

Requisites: 1. It must be manifested by the concurrence of the offer and acceptance (Arts. 1319-1326) 2. The contracting parties must possess the necessary legal capacity (Arts. 1327-1329) 3. It must be intelligent, free, spontaneous, and real (not vitiated) (Arts. 1330-1346) A. Concurrence 1. Offer: a unilateral proposition which one party makes to the other for the celebration of the contract. (Tolentino) Requisites: a. Definite b. Intentional c. Complete Invitations to make offers (advertisements) Business advertisements of things for sale, are NOT definite offers, just invitations to make an offer, UNLESS the contrary appears (Art. 1325) Advertisements for bidders are invitations to make proposals, advertiser is NOT bound to accept lowest or highest bid, UNLESS contrary appears; the bidder is the offeror (Art. 1326). Statements of intention: no contract results even if accepted
Rosenstock v. Burke, 1924: FACTS: Elser, in a letter, informed Burke that he was in a position and is willing to entertain the purchase of the yacht under some terms. HELD: The word entertain applied to an act does not mean the resolution to perform said act, but simply a position to deliberate for deciding to perform or not to perform said act. It was merely a position to deliberate whether or not he would purchase the yacht and invitation to a proposal being made to him, which might be accepted by him or not.

2. Acceptance Requisites: a. Unqualified and Unconditional, i.e. it must conform with all the terms of the offer, otherwise it is a counter-offer (Art. 1319) b. Communicated to the offeror and learned by him (Arts. 1319, 1322). If made through an agent, the offer is accepted from the time the acceptance is communicated to such agent. c. Express/Implied, but is not presumed OPTION CONTRACT: A preparatory contract in which one party grants to the other, for a fixed period, the option to decide whether or not to enter into a principal contract. (Art. 1324)
With consideration Offeror cannot unilaterally withdraw his offer Without consideration Offeror may withdraw by communicating withdrawal to the offeree before acceptance

B. Capacity 1. Incapacitated to Give Consent a. Minors, UNLESS, the minors consent is operative in contracts: For necessaries (Art.1427) Where the minor actively misrepresents his age (estoppel) Mercado v. Espiritu, 1917: Minors held in estoppel through active misrepresentation Bambalan v. Maramba, 1928: There is no estoppel if the minority was known. b. Insane or demented persons, UNLESS, they contract during a lucid interval c. Deaf-mutes who do not know how to read and write.

CONTRACTS

Conformity of the parties to the terms of the contract; the acceptance by one of the offer made by the other. (Manresa)

OFFER TERMINATES upon: a. Rejection by the offeree b. Incapacity (death, civil interdiction, insanity, or insolvency) of the offeror or offeree before acceptance is conveyed c. Counter-offer d. Lapse of the time stated in the offer without acceptance being conveyed e. Revocation of the offer before learning of acceptance f. Supervening illegality before acceptance (J.B.L. Reyes)

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Chapter II. ESSENTIAL REQUISITES

2. Disqualified to Contract (Art. 1329): a. Those under Civil interdiction for transactions inter vivos (RPC Art. 34) b. Undischarged insolvents (Insolvency Law, Sec.24) c. Husband and wife: cannot donate (Art. 123 FC) to each other, nor sell if the marriage is under ACP (Art.1490) d. The ff. cannot purchase (Art. 1491): The guardian: his wards property The agent: the principals property Executors and administrators: property under administration Public officers-state property under their administration Justices, judges, prosecutors, clerks of court, lawyers-property attached in litigation. e. Members of Ethnic Minorities: their contracts (excluding sale of personal property or personal service contracts) must be approved by the Governor or his representative. (Public Land Act)
Incapacity to Give Consent (Art. 1327) Restrains the exercise of the right to contract Based on subjective circumstances of certain persons Voidable Disqualification to Contract (Art.1329) Restrains the very right itself Based on public policy and morality

2. Intimidation When one of the contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent (Art. 1335).
Martinez v. HSBC, 1910: The conveyance of several properties by to her husbands creditors, though reluctant is still consent. She assented to the requirements of the defendants, the civil and criminal actions against them would be dropped. A contract is valid even though one of the parties entered into it against his wishes and desires, or even against his better judgment. Contracts are also valid even though they are entered into by one of the parties without hope of advantage or profit.

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3. Violence Irresistible force used to extort consent (J.B.L. Reyes) 4. Undue Influence When a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice (Art. 1337). Circumstances: a. Relationship of the parties (family, spiritual, confidential etc.) b. That the person unduly influenced was suffering from infirmity (mental weakness, ignorance etc.) (Art.1337) 5. Fraud When through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to (Art. 1338).
Art. 1339, Civil Code. Failure to disclose facts, when there is a duty to reveal them, as when the parties are bound by confidential relations, constitutes fraud. Art. 1340, Civil Code. The usual exaggerations in trade, when the other party had an opportunity to know the facts, are not in themselves fraudulent. Art. 1341, Civil Code. A mere expression of an opinion does not signify fraud, unless made by an expert and the other party has relied on the former's special knowledge. Art. 1342, Civil Code. Misrepresentation by a third person does not vitiate consent, unless, such misrepresentation has created substantial mistake

Void

C. Vices of Consent (Art. 1330, CC) (MIVUF) 1. Mistake Inadvertent and excusable disregard of a circumstance material to the contract. (J.B.L. Reyes) In order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract (Art.1331)
Mistake of Fact Mistake of Law Mutual Mistake

When one or both contracting parties believe that a fact exists when in reality it does not, or vice versa

When one or both parties arrive at an erroneous conclusion on the interpretation of a question of law or the legal effects

Must be as to the legal effect of an agreement Must be mutual Real purpose of the parties must have been frustrated

CIVIL LAW REVIEWER and the same is mutual. Art. 1343, Civil Code. Misrepresentation made in good faith is not fraudulent but may constitute error.

Chapter II. ESSENTIAL REQUISITES

Aleatory contract: where one of the contracting parties assumes the risk that the thing will never come into existence, e.g. insurance

SIMULATION OF CONTRACTS (Art. 13451346): Declaration of a non-existent will made deliberately for the purpose of producing the appearance of a transaction that does not exist, or which is different from the one which actually arose. (J.B.L. Reyes)
Absolute No real transaction is intended Fictitious contract Void Relative Real transaction is hidden Disguised contract Bound as to hidden agreement, so long as it does not prejudice a third person and is not contrary to law, morals, good customs, public order or public policy

III. Cause
It is the impelling reason for which a party assumes an obligation under a contract. Requisites: a. Existing b. Licit or Lawful c. True Cause in:
Onerous Contracts As to each of the contracting parties is understood to be the undertaking or the promise of the thing or service by the other party Renumeratory Contracts The service benefit which remunerated Pure Beneficence Mere liberality of the benefactor

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or is

II. Object
The thing right or service which is the subject matter of the obligation arising from the contract. Requisites: a. Lawful: Not contrary to law, morals, good customs, public order or public policy. b. Actual or possible c. Transmissible: Within the commerce of man d. Determinate or determinable All things or services may be the object of contracts, EXCEPT: Things which are outside the commerce of men Intransmissible rights Future inheritance except in cases authorized by law Impossible things or services Objects which are indeterminable as to their kind, the genus should be expressed In order that a thing, right or service may be the object of a contract, it should be in existence at the moment of the celebration of the contract, or at least, it can exist subsequently or in the future. A FUTURE THING may be the object of a contract, such contract may be interpreted as a: Conditional contract: where its efficacy should depend upon the future existence of the thing

In Villaroel v. Estrada (1940), where a moral obligation is based upon a previous civil obligation, which has already been barred by the statute of limitations at the time the contract is entered into, it constitutes a sufficient cause or consideration to support a contract (Natural Obligation). BUT, In Fisher v. Robb (1939), if the moral obligation arises wholly from ethical consideration, it cannot constitute a sufficient cause to support an onerous contract, as when the promise is made on the erroneous belief that one was morally responsible for the failure of an enterprise (Moral Obligation). Cause Lack Cause Defined Absence or total lack of cause Effect The contract confers no right and has no legal effect Null and Void

of

Illegality Cause

of

Falsity cause

of

Contrary to law, morals, good customs, public policy and public order Cause is stated but is untrue

Lesion or inadequacy of cause

Cause is not proportionate to object

Void if it should not be proved that it was founded upon another cause which was true and lawful Shall not invalidate the contract except when

CIVIL LAW REVIEWER a)there is fraud, mistake, undue influence b)when parties intended a donation Liguez v. CA (1957): In making the donation in question, Lopez was not moved exclusively by the desire to benefit Liguez, but also to secure her cohabiting with him, so that he could gratify his sexual impulses. The donation was an onerous transaction and clearly predicated upon an illicit causa.

Chapter II. ESSENTIAL REQUISITES

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CIVIL LAW REVIEWER

Chapter III. FORMS OF CONTRACTS

Chapter III. Forms of Contracts


I. RULES II. KINDS OF FORMALITIES

I.

Rules

Spiritual System of the Spanish Code: The law looks more on the spirit rather than the form of contracts.

3. Partnership where immovable property or real rights are contributed to the common fund (Arts.1771 and 1773)
BF Corporation v. CA, 1998: A contract may be encompassed in several instruments even though every instrument is not signed by the parties since it is sufficient if the unsigned instruments are clearly identified or referred to and made part of the signed instruments.

Exceptions: When the law requires that a contract be in some form for validity (Arts. 1357-1358) When the law requires that contract be in some form to be enforceable (Statute of Frauds)

II. Kinds of Formalities


A. Contracts Which Must Appear in Writing: 1. Donation of personal property whose value exceeds five hundred pesos (Art 748) 2. Sale of a piece of land or any interest therein through an agent (Art 1874) 3. Antichresis (Art 2134) 4. Agreements regarding payment of interests in contracts of loans (Art. 2314) B. Contracts Which Must Appear in a Public Document 1. Art. 1358: a. Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein a governed by Articles 1403, No. 2, and 1405; b. The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains; c. The power to administer property, or any other power which has for its object an act appearing or which should appear in a public document, or should prejudice a third person;

CONTRACTS

Contracts shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present. (Art. 1356)

d. The cession of actions or rights proceeding from an act appearing in a public document. e. All other contracts where the amount involved exceeds five hundred pesos must appear in writing, even a private one. But sales of goods, chattels or things in action are governed by Articles, 1403, No. 2 and 1405. 2. Donation of immovable properties (Art. 749)

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Chapter IV. REFORMATION OF CONTRACTS Chapter V. INTERPRETATION OF CONTRACTS

Chapter IV. Reformation of Contracts


Reformation of Contracts (Art 1359-1369) REFORMATION: is that remedy in equity by means of which a written instrument is made or construed so as to express or conform to the real intention of the parties when some error or mistake has been committed. (J.B.L. Reyes) Requisites (Art 1359): 1. There must be a meeting of the minds of the contracting parties; 2. Their true intention is not expressed in the instrument; 3. Such failure to express their true intention is due to mistake, fraud, inequitable conduct, or accident; and 4. There is clear and convincing proof of mistake, fraud, inequitable conduct, or accident.
If the mistake, fraud, inequitable conduct, or accident has prevented the meeting of the minds of the parties, the proper remedy is not reformation but annulment of the contract. (See also Art 1390)

Chapter V. Interpretation of Contracts


RULES ON DOUBTS (Art. 1378)
Principal Objects Doubts where it cannot be known what may have been the intention or will of the parties, the contract shall be null and void. Gratuitous Contracts Absolutely impossible to settle doubts by the rules and only refer to incidental circumstances the least transmission of rights and interests shall prevail. Onerous Contracts Absolutely impossible to settle doubts by the rules and only refer to incidental circumstances the doubt shall be settled in favor of the greatest reciprocity of interests.

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Who May Ask for Reformation (Art. 1368): 1. Either party or his successors in interest, if the mistake was mutual; otherwise, 2. Upon petition of the injured party, or his heirs and assigns. NO REFORMATION in (Art. 1366): 1. Simple donations inter vivos wherein no condition is imposed; 2. Wills; 3. When the real agreement is void. Implied Ratification (Art. 1367): The action to enforce the instrument bars subsequent action to reform.

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

Chapter VI. Defective Contracts


I. II. III. IV. RESCISSIBLE VOIDABLE UNENFORCEABLE VOID OR INEXISTENT

I.

Rescissible Contracts (Arts. 1380-1389)


Contracts are entered into to defraud existing creditors When the creditors cannot in any other manner collect the claims due them

What are the rescissible contracts? (Art 1381; see also Art 1382) What makes it defective?

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Contracts of guardians When the acts of administration cause LESION or damage to the WARD they represent by more than 25% of the value of the thing

Contracts in representation of absentees

Contracts refer to things in litigation If entered into by the defendant without the knowledge & approval of the litigants or competent judicial authority

Effect on the Contract How to rescind?

When the acts of administration cause LESION or damage to the ABSENTEE they represent by more than 25% of the value of the thin Valid until rescinded (Art 1380) Direct Action (different from action for rescission under Art 1191) NO rescission if: 1. Injured party has other legal means to obtain reparation (Art 1383). 2. Plaintiff cannot return his part of the obligation (Art 1385 par 1) 3. Object of the contract is in the hands of third person, onerously acquired by him in good faith (Art 1385 par 2) 4. If the court approves the contracts under Art 1381 par 1 and 2 (Art 1386) In general, by By absentee injured party By ward, or by guardian ad litem of ward during incapacity of ward in an action against the original guardian Within four years from [re-] gaining capacity

Accion Pauliana for Contracts in Fraud of Creditors NO rescission if: 1. Injured party has other legal means to obtain reparation (Art 1383) 2. Plaintiff cannot return his part of the obligation (Art 1385 par 1) 3. Object of the contract is in the hands of third person, onerously acquired by him in good faith (Art 1385 par 2)

Who can rescind?

By creditor(s)

By party litigant

When to rescind (Art 1389)

Within 4 years from knowledge of domicile of absentee

Within 4 years from knowledge of fraudulent contract

Within 4 years from knowledge of fraudulent contract

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

II. Voidable Contracts (Arts. 1390-1402)


What makes it defective? (Art 1390) Effect on the Contract How to annul? Incapacity of one party to the contract Consent vitiated by mistake, violence, intimidation, undue influence or fraud

Valid until annulled by competent court (Art 1390 last par) 1. Directly, by an action for annulment 2. Indirectly, by counterclaim asking for positive action of the court to set aside the contract Annulment cannot proceed when: 1. the object of the contract is lost through fraud or deceit of the person with right to institute proceedings (art 1401 par 1); 2. the right of action is based upon the incapacity of any one of the contracting parties and the thing is lost through the fault or fraud of the plaintiff (Art 1401 par 2) 1. Parties who are obliged principally or subsidiarily 2. Persons who are capable cannot allege the incapacity of those with whom they contracted 3. Persons who exerted intimidation, violence, or undue intimidation, or employed fraud, or caused mistake, cannot base their action upon these flaws of the contract Within four years after guardianship of Within four years minors or incapacitated persons 1. After intimidation, violence or undue ceases influence ceases 2. From the time of discovery of mistake or fraud 1. Mutual restitution of the things delivered, along with fruits and price paid with interest (Art 1398) 2. Damages to be paid by party who caused defect of the contract, by virtue of Article 20 and 21 of the Civil Code 1. Express (written or oral manifestation) or tacit ratification (acts or conduct) by injured party, or guardian of incapacitated person. Ratification does not require the conformity of the contracting party who has no right to bring the action for annulment (Art 1395)

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CONTRACTS

Who can/cannot annul? (Art 1397)

When? (Art 1391)

Effect Annulment

of

How to Cure Defect? (Arts 1392 - 1396)

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

III. Unenforceable Contracts (Arts. 1403-1408)


What are the unenforceable contracts? (Art 1403) Contracts covered by Statute of Frauds which did not comply with the written memorandum requirement (See Art 1403 par 2)

Contract entered into without authority of, or in excess of authority given by owner

Contract where both parties are incapable of giving consent to contract

Effect on the Contract How to assail?

No effect unless ratified. Cannot be enforced by a proper action in court. Not by direct action. 1. As a defense, by motion to dismiss the complaint on the ground that the contract is unenforceable Not by direct action. 1. As a defense, by motion to dismiss the complaint on the ground that the contract is unenforceable; 2. Objection to the presentation of oral evidence to prove an oral contract (See Art 1405) By party against whom the contract is being enforced; or his privies. Not by direct action. 1. As a defense, by motion to dismiss the complaint on the ground that the contract is unenforceable

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Who can assail? *an unenforceable contract cannot be assailed by third persons (Art 1408) When? How to Defect? 1403) Cure (Art

By person whose name the contract was entered into; By owner of property.

By party against whom the contract is being enforced; or his privies; or parents or guardians persons, as it is a personal defense

When a party asks the court to enforce the contract 1. Ratification by person whose name the contract was entered into

1. Ratification by party 1. By ratification of party against whom against whom the the contract is being contract is being enforced; or his enforced privies; or parents or
2. By failure to object to the presentation of oral evidence to prove an oral contract or by the acceptance of benefits under the contract (Art 1405) guardians The ratification by one party converts the contract into a voidable contract (Art 1407)

CIVIL LAW REVIEWER

Chapter VI. DEFECTIVE CONTRACTS

IV. Void or Inexistent Contracts (Arts. 1409-1422)


What makes defective? it Contracts Cause, Object of Purpose is contrary to morals, good customs, public order or public policy (Art 1409 par 1) Contracts expressly prohibited or declared void by law (Art 1409 par 7); contracts which are direct results of a previous illegal contract (art 1422) 1.Those whose Cause, Object of Purpose is contrary to morals, good customs, public order or public policy 2.Those which are absolutely simulated or fictitious 3.Those whose cause or object did not exist at the time of the transaction 4.Those whose object is outside the commerce of men 5.Those which contemplate an impossible service 6.Those where the intention of the parties relative to the principal object of the contract cannot be ascertained 7.Those expressly prohibited or declared void by law Inexistent contracts, or contracts whose essential elements are absent (Art Art 1409 par 2, 3, 4,5)

How to assail?

Who can assail?

When?

1. File for action for declaration of inexistence or nullity of contract 2.As a defense during trial (Art 1409 last par). Such defense not available to third persons not directly affected by contract (Art 1421) 3.In pari delicto applies when cause or object of contract constitutes a criminal offense (Art 1411) 1. Innocent party Art 1. Any of the parties 1. Any person whose 1411 par 2; Art 1412 2. Any person whose interests are par2) interests are directly directly affected by 2. Less-guilty party, upon affected by the contract the contract Art court discretion (Art 1421) (1421) 3. Incapacitated person 2. By party for whose who is a party to an protection the illegal contract, upon prohibition of the court discretion (Art law is designed (Art 1415) 1416) 4. Any person whose interests are directly affected by the contract (Art 1421) The action or defense does not prescribe (Art 1410)

- end of Contracts -

CONTRACTS

Contracts which are inconsistent and void from the beginning (Art 1409)

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TABLE of CONTENTS

PROPERTY
Table of Contents
Chapter I. Definition and Classification of Property.........................................................137 I. Definition ...........................................137 II. Classification .....................................137 Chapter II. Ownership ..................................144 I. Definition ...........................................144 III. Specific Rights under the Civil Code.144 IV. Limitations on Real Right of Ownership 146 Chapter III. Accession..................................147 I. Definition ...........................................147 II. General Principles of Accession .......147 III. Kinds of Accession............................147 IV. Principles Governing Each Kind of Accession...................................................147 Chapter IV. Quieting of Title........................152 I. In General .........................................152 II. Purpose .............................................152 III. Nature: Quasi in Rem........................152 IV. Requisites .........................................152 V. Prescription of Action ........................153 Chapter V. Co-Ownership............................154 I. Definition ...........................................154 II. Characteristics ..................................154 III. Difference between Co-ownership and Joint Tenancy.............................................155 IV. Difference between Co-ownership and Partnership.................................................155 V. Sources of Co-Ownership .................155 VI. Rights of Each Co-owner over the Thing or Property Owned in Common .................157 VII. Implication of Co-owners Right over His Ideal Share ..........................................161 VIII. Rules on Co-Ownership Not Applicable to CPG or ACP.........................161 IX. Special Rules on Ownership of Different Stories of a House as Differentiated from Provisions of the Condominium Act...........162 X. Extinguishment of Co-Ownership .....166 Chapter VI. Possession ...............................168 I. Definition ...........................................168 II. Degrees of Possession .....................169 III. Classes of Possession ......................169 IV. Cases of Possession.........................169 V. What Things May be Possessed ......170 VI. What May Not Be Possessed by Private Persons......................................................171 VII. Acquisition of Possession .............171 VIII. Effects of Possession ...................173 IX. Effects of Possession in the Concept of Owner ........................................................177 X. Presumption in Favor of the Possessorfor Acquisitive Prescription ....178 XI. Possesion May Be Lost By ...............179 Chapter VII. Usufruct ................................... 181 I. Concept............................................. 181 II. Characteristics .................................. 181 III. Usufruct Distiguished from Lease and Servitude.................................................... 181 IV. Classes of Usufruct........................... 182 V. Rights of Usufructuary ...................... 184 VI. Rights of the Naked Owner............... 186 VII. Obligations of the Usufructuary .... 187 VIII. Special Cases of Usufruct ............ 190 IX. Extinguishment of Usufruct............... 192 X. Conditions Not Affecting Usufruct..... 194 Chapter VIII. Easement ................................ 196 I. Concept............................................. 196 II. Essential Features ............................ 196 III. Classification of Servitudes............... 197 IV. General Rules Relating to Servitudes 198 V. Modes of Acquiring Easements ........ 198 VI. Rights and Obligations of Owners of Dominant and Servient Estates ................. 199 VII. Modes of Extinguishment of Easements................................................. 200 VIII. Legal Easements .......................... 202 Chapter IX. Nuisance ................................... 212 I. Definition ........................................... 212 II. Classes ............................................. 212 III. Liability in Case of Nuisance............. 213 IV. Regulation of Nuisances ................... 214 Chapter X. Modes of Acquiring Ownership ....................................................................... 217 I. Mode v. Title ..................................... 217 II. Mode ................................................. 217 Chapter XI. Donation ................................... 222 I. Nature ............................................... 222 II. Requisites ......................................... 222 III. Kinds ................................................. 222 IV. Who May Give or Receive Donations 223 V. Who May Not Give or Receive Donations................................................... 224 VI. Acceptance ....................................... 225 VII. Form ............................................. 225 VIII. What May Be Donated ................. 225 IX. Effect ................................................. 226 X. Revocation and Reduction................ 227 Chapter XII. Lease........................................ 232 I. General Characteristics .................... 232 II. Kinds ................................................. 232 III. Lease of Things ................................ 232

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CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

Prof. Solomon Lumba


Faculty Editor

Michelle Go
Lead Writer Erika Esperas Katrina Michelle Mancao Celie Mari Santos Writers

PROPERTY

PROPERTY TEAM

Chapter I. Definition and Classification of Property


I. DEFINITION II. CLASSIFICATION A. UNDER THE CIVIL CODE B. BY OWNERSHIP C. OTHER CLASSIFICATIONS

CIVIL LAW
Kristine Bongcaron Patricia Tobias
Subject Editors

I.

Definition

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

PRINTING & DISTRIBUTION


Kae Guerrero

PROPERTY: Mass of things or objects characterized by 1. Utility capacity to satisfy human wants 2. Individualityand substantivity separate and autonomous existence 3. Susceptibility of being appropriated those which cannot be appropriated because of their distance, depth or immensity cannot be considered as things (i.e. stars, ocean)

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PROPERTY

DESIGN & LAYOUT


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

II. Classification
A. UNDER THE CIVIL CODE
Article 414, Civil Code. All things which are or may be the object of appropriation are considered either: 1. Immovable or real property; or 2. Movable or personal property.

LECTURES COMMITTEE
Michelle Arias Camille Maranan Angela Sandalo
Heads Katz Manzano Mary Rose Beley Sam Nuez Krizel Malabanan Arianne Cerezo Marcrese Banaag Volunteers

MOCK BAR COMMITTEE


Lilibeth Perez

BAR CANDIDATES WELFARE


Dahlia Salamat

LOGISTICS
Charisse Mendoza

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

IMMOVABLES OR REAL PROPERTY Article 415 The following are immovable property: 1. Land, buildings, roads and constructions of all kinds adhered to the soil; 2. Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; 3. Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; 4. Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; 5. Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works; 6. Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have

CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

7. 8.

9.

10.

them permanently attached to the land, and forming a permanent part of it; the animals in these places are included; Fertilizer actually used on a piece of land; Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; Contracts for public works, and servitudes and other real rights over immovable property.

b. However, by special treatment of Act 1508 (Sec. 7, Chattel Mortgage Law), growing crops may be subject of a Chattel Mortgage. c. For the purpose of attachment: growing crops are to be attached in the same manner as realty. (Rule 59, Sec. 7) 2. Par. 3: Things incorporated a. Res vinta in Roman Law b. Attachment in a fixed manner: breakage or injury in case of separation will be substantial e.g. wells, sewers, aqueducts and railways Whether attached by the owner himself or some other person 3. Par. 7: Fertilizer Actually used means it has been spread over the land.

Immovables by Nature Those which cannot be moved from place to place; their intrinsic quality have no utility except in a fixed place (Par. 1 & 8) 1. Par. 1: Lands, building, roads and constructions a. Buildings To be considered a building, their adherence to the land must be permanent and substantial. Buildings have been considered as immovables, despite: Treatment by the parties e.g. they constitute a separate mortgage on the building and the land (Punzalan v. Lacsamana) Separate Ownership i.e. a building on rented land is still considered an immovable. (Tolentino) 2. Par. 8: Mineral deposits and waters a. Mineral Deposits Minerals still deposited in the soil When minerals have been extracted, they become chattel. b. Slag Dump: dirt and soil taken from a mine and piled upon the surface of the ground. Inside the dump can be found the minerals. c. Waters: those still attached to or running thru the soil or the ground. Immovables by Incorporation Those which are essentially movables but are attached to an immovable in such a way as to be an integral part thereof (Par. 2, 3, 4, 6 & 7) 1. Par. 2: Trees and plants a. Trees and plants: only immovables when they are attached to the land or form an integral part of an immovable When they have been cut or uprooted, they become movables.

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Immovables by Destination Those which are essentially movables but by the purpose for which they have been placed in an immovable, partake of the nature of an immovable because of the added utility derived therefrom (Par. 4, 5, 6 & 9) 1. Par. 4: Fixtures and ornaments Requisites: a. Placed by the owner or by the tenant as agent of the owner; b. With intention of attaching them permanently even if adherence will not involve breakage or injury. Where the improvement or ornaments placed by the lessee are not to pass to the owner at the expiration of the lease, they remain movables for chattel mortgage purposes. (Davao Sawmill v. Castillo) 2. Par. 3 v. Par. 4
Par. 3 Par. 4 Cannot be separated from Can be separated from immovable without immovable without breaking or deterioration breaking or deterioration Must be placed by the Need not be placed by the owner, or by his agent, owner expressed or implied Real property by Real property by incorporation and incorporation destination

3. Par. 5: Machinery and equipment a. Immovable characteristic depends upon their being destined for use in the industry or work in the tenement; The moment they are separated, (from the immovable or from the industry or work in which they are

CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

utilized) they recover their condition as movables. If it is still needed for the industry but separated from the tenement temporarily, the property continues to be immovable. b. Requisites for Immovability in Par. 5: Placed by the owner or the tenant as agent of the owner; Adapted to the needs of the industry or work carried on EXCEPT: When estoppel operates Parties to a contract may by agreement treat as personal property that which by nature would be real property, as long as no interest of third parties would be prejudiced. That characterization is effective as between the parties. (Makati Leasing v. Wearever) c. EFFECT of Attachment Machinery become part of the immovable. The installation of machinery and equipment in a mortgaged sugar central for the purpose of carrying out the industrial functions of the latter and increasing production, constitutes a permanent improvement on said sugar central and subjects said machinery and equipment to the mortgage constituted thereon. (Berkenkotter v. Cu Unjieng)

usufruct and lease of real property for a period of 1 year and registered Effect of Enumeration: Art. 415 not absolute 1. Parties may by agreement treat as movable that which is enumerated by law as immovable, but effective only as to them. The view that parties to a deed of chattel mortgage may agree to consider a house as personal property for the purposes of said contract, "is good only insofar as the contracting parties are concerned. It is based, partly, upon the principle of estoppel" (Evangelista vs. Alto Surety) 2. For purposes of taxation, improvements on land are commonly taxed as realty, even though for some purposes, they might be considered as personalty. It is a familiar phenomenon to see things classified as real property for purposes of taxation, which on general principle, might be considered personal property. (Manila Electric v. Central Bank)

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PROPERTY

MOVABLES OR PERSONAL PROPERTY


Article 416, Civil Code. The following things are deemed to be personal property: 1. Those movables susceptible of appropriation which are not included in the preceding article; 2. Real property which by any special provision of law is considered as personal property; 3. Forces of nature which are brought under control by science; and 4. In general, all things which can be transported from place to place without impairment of the real property to which they are fixed. Article 417, Civil Code. The following are also considered as personal property: 1. Obligations and actions which have for their object movables or demandable sums; and 2. Shares of stock of agricultural, commercial and industrial entities, although they may have real estate.

4. Par. 6: Animal houses and animals therein a. Requisites: Placed by the owner or the tenant as agent of the owner, with the intention of permanent attachment; Forming a permanent part of the immovable. 5. Par. 9: Docks and fixed floating structures a. A floating house tied to a shore or bank post and used as a residence is considered real property, considering that the waters on which it floats are considered immovables. b. But if the floating house makes it a point to journey from place to place, it assumes the category of a vessel, and is considered immovable property Immovables by Analogy (Par. 10) Contracts for public works, servitudes, other real rights over immovable property e.g.

Tests to Determine Movable Character 1. By exclusion everything NOT included in Article 415 Parties cannot by agreement treat as immovable that which is legally movable.

CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

2. By description an object is immovable if it possesses: a. Ability to change location whether it can be carried from place to place; b. Without substantial injury to the immovable to which it is attached. The steel towers built by MERALCO are not buildings or constructions since they are removable and merely attached to a square metal frame by means of bolts, which when unscrewed could easily be dismantled and moved from place to place, without breaking the material or causing deterioration to the object they are attached. (Board of Assessment Appeals v. Meralco) 3. By special provision of law real property is considered as personal property a. Growing crops under the Chattel Mortgage Law b. Machinery installed by a lessee not acting as agent of the owner (Davao Sawmill v. Castillo) c. Intellectual property considered personal property; it consists in the pecuniary benefit which the owner can get by the reproduction or manufacture of his work. 4. By forces of nature e.g. electricity, gas, heat, oxygen

If the value of the gain cannot be ascertained, a fine of from 200 to 500 pesos shall be imposed. 2. Robbery and theft can be committed only against personal property. Art. 293. Who are guilty of robbery. Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence or intimidation of any person, or using force upon anything shall be guilty of robbery. Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent. Form of Contracts Involving Movables and Immovables 1. Subject matter of specific contracts: only real property can be the subject of real mortgage (Art. 2124) and antichresis (Art 2132); only personal property can be the subject of voluntary deposit (Art. 1966), pledge (Art. 2094) and chattel mortgage (Act 1508) 2. Donations of real property are required to be in a public instrument (Art. 749) but a donation of a movable mat be made orally or in writing (Art. 748) Acquisitive Prescription 1. Real Property can be acquired by prescription in 30 years (bad faith) and 10 years (good faith). 2. Movables can be acquired by prescription in 8 years (bad faith) and 4 years (good faith). Venue 1. Rule 4, Sec. 1: Venue of real actions. Actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated.

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IMPORTANCE AND SIGNIFICANCE OF CLASSIFICATION UNDER THE CIVIL CODE Criminal Law 1. Usurpation of property can take place only with respect to real property. Art. 312. Occupation of real property or usurpation of real rights in property. Any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another, in addition to the penalty incurred for the acts of violence executed by him, shall be punished by a fine from 50 to 100 per centum of the gain which he shall have obtained, but not less than 75 pesos.

CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

2. Rule 4, Sec. 2: Venue of personal actions. All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff. Governing Law 1. Immovables are governed by the law of the country wherein they are located 2. Movables are governed by the personal laws of the owner which in some cases is the law of his nationality and in other cases, the law of his domicile. Action for Recovery of Possession 1. Possession of real property may be recovered through accion reivindicatoria, accion publiciana, forcible entry and unlawful detainer. 2. Possession of movable property may be recovered through replevin.

Classifications 1. Administered by the State a. For public usemay be used by everybody, even by strangers or aliens, in accordance with its nature but nobody can exercise over it the rights of a private owner. b. For public servicemay be used only by authorized persons but exists for the benefit of all e.g. fortresses, unleased mines and civil buildings c. For development and national wealth includes natural resources such as minerals, coal, oil and forest 2. Administered by Municipal Corporations
Article 424, Civil Code. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities, or municipalities.

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PROPERTY

B. CLASSIFICATION BY OWNERSHIP
Article 419, Civil Code. Property is either of public dominion or of private ownership.

Property of public dominion is outside the commerce of man They cannot be the subject matter of private contracts, cannot be acquired by prescription and they are not subject to attachment and execution nor burdened with a voluntary easement.

PROPERTY OF PUBLIC DOMINION


Article 420, Civil Code. The following things are property of public dominion: 1. Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character; 2. Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth. Public Dominion Public Domain Public Lands As defined by Art. 420, CC Used in Article XII, Section 2, of the 1987 Constitution Public Land Act

PRIVATE OWNERSHIP Can be exercised by the State in its private capacity or by private persons Patrimonal Property of the State
Article 421, Civil Code. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property.

Characteristics of Public Dominion 1. Not owned by the State and its subdivisions but pertains to it as territorial sovereign, to hold in trust for the interest of the community. 2. Intended for public use, and not for use by the State as a juridical person 3. Cannot be the subject of appropriation either by the State or by private persons

1. Owned by the State over which it has the same rights as private individuals in relation to their own property 2. Subject to the administrative laws and regulations on the procedure of exercising such rights. 3. Examples: friar lands, escheated properties and commercial buildings 4. Purpose of Patrimonial Property a. Enables the State to attain its economic ends b. Serves as a means for the States subsistence and preservation c. Enables the State to fulfill its primary mission 5. Conversion of Property of Public Dominion to Patrimonial Property

CIVIL LAW REVIEWER

Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State [Art. 422, Civil Code] 6. Requires a Declaration by the Government through its executive or legislative departments to the effect that it is no longer needed for public use or service.

individually property)

or

collectively

(co-owned

Patrimonial Property Corporations

of

Municipal

1. The province or municipality, as a juridical entity, also possesses private property to answer for its economic necessities. 2. Classification of Properties of provinces, cities and municipalities (Salas v. Jarencio) a. Properties acquired with their own funds in their private or corporate capacity over which the political subdivision has ownership and control b. Properties of public dominion held in trust for the States inhabitants are subject to the control and supervision of the State 3. A municipal corporation must prove that they acquired the land with their own corporate funds The presumption is that land comes from the State upon the creation of the municipality. All lands in the possession of the municipality, EXCEPT for those acquired with its private funds, are deemed to be property of public dominion, held in trust for the State for the benefit of its inhabitants. Congress has paramount power to dispose of lands of public dominion in a municipality, the latter being a subdivision only for purposes of local administration. (Salas v. Jarencio) Private Property of Private Persons
Article 425, Civil Code. Property of private ownership, besides the patrimonial property of the State, provinces, cities, and municipalities, consists of all property belonging to private persons, either individually or collectively.

Private Land converted to Property of Public Dominion through abandonment and reclamation Through the gradual encroachment or erosion by the ebb and flow of the tide, private property may become public IF the owner appears to have ABANDONED the land, and permitted it to be totally destroyed so as to become part of the shore. The land having disappeared on account of the gradual erosion, and having remained submerged until they were reclaimed by the government, they are public land. (Government v. Cabangis)

C. OTHER CLASSIFICATIONS By their physical existence 1. Corporeal All property the existence of which can be determined by the senses (res qui tangi possunt) 2. Incorporeal a. Things having abstract existence, created by man and representing value. b. Includes rights over incorporeal things, credits, and real rights other than ownership over corporeal things. By their autonomy or dependence 1. Principal Those to which other things are considered dependent or subordinated, such as the land on which a house is built. 2. Accessory Those which are dependent upon or subordinated to the principal. They are destined to complete, enhance or ornament another property.

Refers to all property belonging to private persons, natural or juridical, either

PROPERTY

Article 424(2), Civil Code. All other property possessed by any of them [the provinces, cities, and municipalities] is patrimonial and shall be governed by this Code, without prejudice to the provisions of special laws.

CONVERSION Alienable Public Land converted to Private Property through Prescription Alienable public land held by a possessor personally/through predecessors-in-interest, openly, continuously and exclusively for 30 years is CONVERTED to private property by the mere lapse or completion of the period. The application for confirmation is mere formality, because land had already been converted, giving rise to a registrable title. (Director of Lands v. IAC) See New Law

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Chapter I. DEFINITION and CLASSIFICATION of PROPERTY

By their subsistence after use


Article 418, Civil Code. Movable property is either consumable or nonconsumable. To the first class belong those movables which cannot be used in a manner appropriate to their nature without their being consumed; to the second class belong all the others.

2. Specific That which indicates the specie or its nature and the individual, such as the white horse of X. Existence in point of time 1. Present Those which exist in actuality, either physical or legal, such as, the erected building. 2. Future Those which do not exist in actuality, but whose existence can reasonably be expected with more or less probability, such as ungathered fruits.

2. Non-consumable e.g. money in coin Susceptibility to substitution 1. Fungibles Things which because of their nature or the will of the parties, are capable of being substituted by others of the same kind, not having a distinct individuality. 2. Non-Fungibles Things which cannot be substituted for another Consumable v. Fungible: It is the intention of the parties to a contract which determines whether the object is fungible or nonfungible and not the consumable or nonconsumable nature of the thing. By susceptibility to deterioration 1. Deteriorable that deteriorate through use or by time 2. Non-deteriorable By reason of their susceptibility to division 1. Divisible Those which can be divided physically or juridically without injury to their nature. E.g.: piece of land or an inheritance. 2. Indivisible Those which cannot be divided without destroying their nature or rendering impossible the fulfillment of the juridical relation of which they are object. By reason of designation 1. Generic That which indicates its homogenous nature, but not the individual such as a horse, house, dress, without indicating it.

PROPERTY

1. Consumable a. Those whose use according to their nature destroys the substance of the thing or causes their loss to the owner. (ex: food) b. Consumable goods cannot be the subject matter of a contract of commodatum unless the purpose of the contract is not the consumption of the object, as when it is merely for exhibition.

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Chapter II. OWNERSHIP

Chapter II. Ownership


I. II. III. IV. DEFINITION BUNDLE OF RIGHTS IN OWNERSHIP SPECIFIC RIGHTS OF THE OWNER LIMITATIONS ON THE RIGHTS OWNERSHIP

Right to Self Help


Article 429, Civil Code. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal therof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property.

OF

I.

Definition
Independent right of exclusive enjoyment and control of a thing For the purpose of deriving all advantages required by the reasonable needs of the owner/holder of right and promotion of general welfare A thing pertaining to one person Completely subjected to his will In everything not prohibited by public law or the rights of another

II. Rights Included in Ownership


Art. 428, Civil Code 1. The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. 2. The owner has also a right of action against the holder and possessor of the thing in order to recover it. 5 + 1 BUNDLE OF RIGHTS 1. Jus Utendi: Right to enjoy and receive what the property produces 2. Jus Fruendi: Right to receive fruits 3. Jus Abutendi: Right to consume a thing by use 1. Jus Disponendi: Right to to alienate, encumber, transform or even destroy the thing owned 2. Jus Vindicandi: Right to recover possession of property based on a claim of ownership 4. Jus Possidendi: Right to possess the property (Implied from all the other rights)

Right to Enclose or Fence


Article 430, Civil Code. Every owner may enclose or fence his land or tenements by means of walls, ditches, live or dead hedges, or by any other means without detriment to servitudes constituted thereon.

But right is limited by servitudes existing thereon The owner of lower lands cannot erect works that will impede or prevent such an easement or charge, constituted and imposed by the law upon his estate for the benefit of higher lands belonging to different owners; neither can the latter do anything to increase or extend the easement. It is true that the Code authorizes every owner to enclose his estate by means of walls, ditches, fences or other device, but this right is limited by the easement imposed upon his estate. (Lunod v. Meneses)

III. Specific Rights under the Civil Code


Specific Rights 1. Right to Self Help 2. Right to Enclose of Fence 3. Right to Receive Just Compensation 4. Right to Accession 5. Right to Space and Subsoil 6. Right to Hidden Treasure 7. Right to Recover Possession

Right to Receive Just Compensation (in case of expropriation)


Article 435, Civil Code. No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation. Should this requirement be not first complied with, the courts shall protect and, in a proper case, restore the owner in his possession.

PROPERTY

1. Authorizes the lawful possessor to use force, to prevent a threatened lawful invasion or usurpation 2. Requisites a. Lawful possession b. Actual or threatened unlawful physical invasion or usurpation of his property Must not be a valid exercise of right or public function c. Force used is reasonably necessary to repel or prevent the aggression (least damage rule) d. Physical invasion must not have succeeded yet, and possession has not been lost Once property is lost, the owner can no longer use force, but must file action to recover

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Chapter II. OWNERSHIP

Requisites of a Valid Expropriation a. For public use or utility b. Necessity of expropriation: reasonable in view of purpose of the taking c. Just compensation: Market value + consequential damages

a. Right of a finder by chance who is not a trespasser/intruder: of treasure b. Right of a usufructuary who finds treasure: of treasure c. Right of State to acquire things of interest to science or the arts Right to Recover Possession 1. Movable Property: Replevin for manual delivery of property Prescription of Right: 4 years (GF) or 8 years (BF) 2. Immovable Property a. Accion Reinvindicatoria: Recovery of ownership of real property Including but not limited to possession Prescription of Action: 30 years b. Accion Publiciana: Recovery of a better right to possess (de jure) Judgment as to who has the better right of possession Also, actions for ejectment not filed within 1 year must be filed as accion publiciana Prescription: 10 years c. Accion Interdictal: Recovery of actual/physical possession (de facto) FORCIBLE ENTRY: Lawful possessor deprived through FISTS: o FISTS (Force, Intimidation, Strategy, Threats, Stealth) o Prescription: 1 year from dispossession (force, intimidation, threats) or from knowledge of dispossession (strategy, stealth) UNLAWFUL DETAINER: Possessor refused to vacate upon demand by owner o Legal possession (by permission/tolerance) becomes unlawful upon failure to vacate o Prescription of action: 1 year from last notice to vacate In case of leases of residential units, the grounds for judicial ejectment are limited to those enumerated in, RA 9653: Rent Control Law of 2009 (See Section on Special Laws) 3. Requisites for Recovery [Art. 434, Civil Code] a. Property must be identified Through a relocation survey and a title properly identifying boundaries and location

Right to Accession
Article 440, Civil Code. The ownership of property gives the right by accession to everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially.

Right to Space and Subsoil 1. Ownership of surface and everything under the property a. Can construct works, make plantings and excavations b. Respecting servitudes and reasonable requirements of aerial navigation c. Easement of lateral and subjacent support 2. Subject to laws and ordinances The doctrine that ownership of the land extends to the periphery of the universe (Cujus est solum ejus est usque ad coelum, usque ad infernos) is no longer applied in the modern world, in view of the doctrine that the air is a public highway. (US v. Causby) Right to Hidden Treasure
Article 438, Civil Code. Hidden treasure belongs to the owner of the land, building, or other property on which it is found. Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one-half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science or the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. Article 439, Civil Code. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry or other precious objects, the lawful ownership of which does not appear

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PROPERTY

1. Legal concept of hidden treasure a. Consist of money jewels or other precious objects b. Hidden and unknown, such that the finding is a real discovery 2. Owner also owns hidden treasure found in the land subject to:

CIVIL LAW REVIEWER

Chapter II. OWNERSHIP

b. Plaintiff must rely on the strength of his title and not on weakness of defendants title Right must be founded on positive title and not on lack or insufficiency of defendants Ei incumbit probatio qui dicit, non qui negat: He who asserts, not he who denied must prove

IV. Limitations Ownership

on

Real

Right

of

Limitations Provided by Law 1. In General a. Police Power: Property taken with no compensation for general welfare When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. [Art. 436, Civil Code] Requisites: To justify the exercise of police power, the following must appear: o The interests of the public generally, require such interference (as distinguished from those of a particular class) o The means are reasonably necessary for the accomplishment of a purpose, and not unduly oppressive b. Taxation: Forced contribution to the operation of government c. Eminent Domain: Property taken for public use/purpose, but subject to due process and payment of just compensation Requisites To justify the exercise of the right of eminent domain, the following requisites must all be present: o Private property as the object of the expropriation; o The property is taken by the State or by competent authority; o The purpose of the taking is for public use; o The taking must be attended with due process of law; o There is payment of just compensation

2. Specific Limitations a. Legal Servitudes: once requisites are satisfied, the servient owner may ask the Court to declare the existence of an easement Art. 644 & 678: Aqueduct Art. 679: Planting of trees Art. 670: Light and View Art. 649 & 652: Right of Way Art. 637: Passage of water from upper to lower tenements Art. 676: Drainage of buildings Art. 684-687: Lateral and subjacent support b. Must not injure the rights of a third person Sic Utere Tuo Ut Alienum Non Laedas The owner of a thing cannot make use thereof in such manner as to injure the rights of a third person. [Art. 431, Civil Code] c. Act in State of Necessity The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. The owner may demand from the person benefited, indemnity for the damage to him. [Art. 432, Civil Code]

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PROPERTY

CIVIL LAW REVIEWER

Chapter III. ACCESSION Industrial fruits are those produced by lands of any kind through cultivation or labor. Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of perpetual or life annuities or other similar income. TO TO

Chapter III. Accession


I. II. III. IV. DEFINITION GENERAL PRINCIPLES OF ACCESSION KINDS OF ACCESSION PRINCIPLES APPLICABLE TO EACH A. PRINCIPLES APPLICABLE ACCESSION DISCRETA B. PRINICPLES APPLICABLE ACCESSION CONTINUA ACCESSION OVER MOVABLES

1. Accession Discreta Natural


Article 444, Civil Code. Only such as are manifest or born are considered as natural or industrial fruits..

V.

I.

Definition

II. General Principles of Accession


1. Accessory follows the principal: presumption of ownership of both principal and accessory 2. No one shall be unjustly enriched at the expense of another: right to acquire but with duty to reimburse

2. Accession Discreta Industrial: Refers to fruits produced by the land through labor and cultivation 3. Accession Discreta Civil: Refers to rentals of a movable or an immovable Principles Applicable to Accession Discreta 1. Time of Accrual depending on kind: a. Annuals: from the time seedlings appear on the ground b. Perennials: from the time fruits actually appear on the plants c. Young of animals: from the time they are in the womb, although unborn beginning of maximum ordinary period of gestation d. Fowls: from the time of incubation 2. A receiver of fruits has the obligation to pay the expenses incurred by a third person in the production, gathering and preservation. (Art. 443, Civil Code) Exception: Receiver does not have to pay if fruits are recovered before gathering from a possessor in bad faith, receiver does NOT have to pay indemnity But if recovered after fruits have been gathered, receiver must pay since the fruits have been separated from immovable, hence accession principles will not apply Accession Continua over Immovables: Accession by Attachment/Incorporation 1. Accession Continua Artificial or Industrial: Building, planting or sowing on land owned by another (over immovables) a. GENERAL RULE: Whatever is built, planted or sown on the land of another +

III. Kinds of Accession


1. Accession Discreta a. Natural b. Industrial c. Civil 2. Accession Continua a. Over Immovables Industrial Natural o Alluvion o Avulsion o Change of Course of River o Formation of Islands b. Over Movables Conjunction and Adjunction Commixtion and Confusion Specification

IV. Principles Governing Each Kind of Accession


A. Accession Discreta Accession Discreta: Accession of Fruits
Article 441, Civil Code. To the owner belongs: 1. The natural fruits; 2. The industrial fruits; 3. The civil fruits. Article 442, Civil Code. Natural fruits are the spontaneous products of the soil, and the young and other products of animals.

PROPERTY

ACCESSION: Owner of a thing becomes the owner of everything that it may produce or which may be inseparably united or incorporated thereto, either naturally or artificially

a. Spontaneous products of the soil without the intervention of man b. The young of animals Products of animals which can be removed without killing the principal (e.g. fleece, wool, milk, etc. but not meat, fur, hide) Time of Accrual depending on kind:

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Chapter III. ACCESSION

improvements or repairs made thereon, belong to the owner of the land subject to the rules on BPS. b. PRESUMPTIONS: All works, sowing and planting are presumed made by the owner All works are presumed made at the owners expense, unless the contrary is proved The owner of the principal thing owns the natural, industrial and civil fruits, except when the following persons exist: o Possessor in Good Faith o Usufructuary o Lessee o Antichretic creditor c. Meaning of BAD FAITH Bad faith o On the part of the landowner: Whenever the building, planting

SUMMARY OF BUILDER, PLANTER AND SOWER PROVISIONS ART. 447-455 Case 1: Landowner is BPS using material of another Landowner and BPS
Good faith Right to acquire the improvements after paying the value of materials.

Owner of Material
Good faith Limited right of removal if there would be no injury to work constructed, or without plantings or constructions being destroyed. (Article 447) Right to receive payment for value of materials Good faith Right to receive payment for value of materials Absolute right of removal of the work constructed in any event Right to be indemnified for damages Bad faith Lose materials without right to indemnity

Bad faith Acquire BPS after paying its value and paying indemnity for damages (Article 447) but subject to OMs right to remove Good faith Right to acquire the improvements without paying indemnity Right to acquire indemnity for damages if there are hidden defects known to OM Bad faith Same as though acted in good faith under Article 453

Bad faith Same as though acted in good faith under Article 453

Case 2: BPS builds, plants, or sows on anothers ;and using his own materials
Landowner Good faith Landowner has option to: a. Acquire the improvement after paying indemnity which may be the original cost of improvement OR increase in value of the whole brought about by the improvement b. Sell the land to the BP or collect rent from sower UNLESS value of land is more than the thing built, planted or sown or BP shall pay rent fixed by parties or by the court in case of BPS and Owner of Material Good faith BPS has right to retain (right of retention) the land until the payment of indemnity NOTE: During this period BPS is not required to pay rent.

PROPERTY

or sowing was done with the knowledge and without opposition on his part o On the part of owner of materials: Allows the use of his materials without protest o On the part of the builder, planter and sower: Knows that he does not have title to the land, nor the right to build thereon OR no permission of the owner of the materials to pay their value Bad faith leads to liability for damages and the loss of the works or the improvement without reimbursement Bad faith of one party neutralizes the bad faith of the other

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CIVIL LAW REVIEWER disagreement. NOTE: Landowner can be forced to choose under pain of direct contempt or court can choose for him. Good faith Landowner has right to collect damages in any case and option to: a. Acquire improvements without paying indemnity if the improvements are still standing on the land b. Sell the land to BP or collect rent from the sower unless value of the improvements in which case there will be a forced lease c. Order demolition of improvements or restoration o0f land to its former condition at the expense of the BPS Landowner must pay for necessary expenses for preservation Bad faith Landowner must indemnify BPS for the improvements and pay damages as if he himself did the BPS Landowner has no option to sell the land and cannot compel BPS to buy the land unless BPS agrees to Bad faith Same as though acted in bad faith under Article 453

Chapter III. ACCESSION

Bad faith Pay damages to landowner BPS lose materials without right to indemnity No right to refuse to buy the land Recover necessary expenses for preservation of land

149
Good faith BPS has right to : a. Be indemnified for damages b. Remove all improvements in any event
PROPERTY

Bad faith Same as though acted in bad faith under Article 453

Case 3: BPS builds, plants or sows on anothers land with materials owned by third persons
Landowner Good faith Right to acquire improvements and pay indemnity to BPS; subsdiarily liable to OM Has option to: a. Sell land to BP except if the value of the land is considerably more b. Rent to sower Good faith Right to acquire improvements and pay indemnity to BPS Has option to: a. Sell land to BP except if the value of the land is considerably more b. Rent to sower Without subsidiarily liability for cost of materials Good faith Landowner has right to collect damages in any case and option to: a. Acquire improvements w/o paying for indemnity; or b. Demolition or restoration; or c. Sell to BP, or to rent to sower Pay necessary expenses to BPS Bad faith Same as when all acted in good faith under Article 453 BPS Good faith Right of retention until necessary and useful expenses are paid Pay value of materials to OM Owner of Material Good faith Collect value of material primarily from BPS and subsidiarily liable for landowner if BPS is insolvent Limited right of removal

Good faith Right of retention until necessary and useful expenses are paid. Keep BPS without indemnity to OM and collect damages from him

Bad faith Lose the material without right to indemnity Must pay for damages to BPS

Bad faith Recover necessary expenses for preservation of land from landowner unless landowner sells land

Bad faith Recover value from BPS (as if both are in good faith) If BPS acquires improvement, remove materials if feasible w/o injury No action against landowner but liable to landowner for damages

Bad faith Same as when all acted in good faith under Article 453

Bad faith Same as when all acted in good faith under Article 453

CIVIL LAW REVIEWER

Chapter III. ACCESSION

Bad faith Acquire improvement after paying indemnity and damages to BPS unless latter decides to remove Subsidiarily liable to OM for value of materials Bad faith Acquire improvements after indemnity; subsidiarily liable to OM for value of materials Has option to: a. Sell the land to BP except if the value of the land is considerably more b. Rent to sower Good faith Acquire imrovement after paying indemnity; subsidiarily liable to OM Landowner has option to: a. Sell land to BP except if value of land is considerably more b. Rent to sower Bad faith Acquire improvements and pay indemnity and damages to BPS unless latter decides to remove materials

Good faith May remove improvements Be indemnified for damages in any event

Good faith Remove materials if possible w/o injury Collect value of materials from BPS; subsidiarily from landowner Good faith Collect value of materials primarily from BPS and subsidiarily from landowner Collect damages from BPS If BPS acquires improvements, remove materials in any event

Bad faith Right of retention until necessary expenses are paid Pay value of materials to OM and pay him damages

150
PROPERTY

Bad faith Right of retention until necessary expenses are paid Pay value of materials to OM Pay damages to OM

Good faith Collect value of materials primarily from BPS and subsidiarily from landowner Collect damages from BPS If BPS acquires improvements, absolute right of removal in any event Bad faith No right to indemnity Loses right to mnaterial

Good faith Receive indemnity for damages Absolute right of removal of improvements in any event

2. Accession Continua Natural: Land deposits, etc. a. ALLUVIUM: Soil is gradually deposited on banks adjoining the river REQUISITES o Deposit of soil or sediment is gradual and imperceptible o As a result of the action of the currents of the waters of the river o Land where the accretion takes place is adhacent to the banks of the rivers o Deemed to Exist: When the deposit of the sediment has reached a level higher than the highest level of the water during the year EFFECT o Land automatically owned by the riparian owner o BUT does not automatically become registered property RATIONALE o To offset the owners loss from possible erosion due to the current of the river

Compensate for the subjection of the land to encumbrances and legal easements b. AVULSION: A portion of land is segregated from one estate by the forceful current of a river, creek or torrent and transferred to another REQUISITES o Segregation and transfer of land is sudden and abrupt o Caused by the current of the water o Portion of land transported must be known and identifiable OR o Can also apply to sudden transfer by other forces of nature such as land transferred from a mountain slope because of an earthquake RESULT: The ownership of the detached property is retained by the owner subject to removal within 2 years from the detachment o

CIVIL LAW REVIEWER

Chapter III. ACCESSION

c.

CHANGE OF COURSE OF RIVER REQUISITES o Change in the natural course of the waters of the river o Such change causes the abandonment of the river beds Natural Bed: ground covered by its waters during ordinary floods o Such change is sudden or abrupt RESULTS: o Owners whose lands are occupied by the new course automatically become owners of the old bed, in proportion to the area they lost o Owners of the lands adjoining the old bed are given the right to acquire the same by paying the value of the land Not exceeding the value of the land invaded by the new bed (the old property of the owner) o The new bed opened by the river on a private estate shall become of public dominion

151
PROPERTY

d. FORMATION OF ISLANDS Belong to the State if: o Formed on the SEAS within the jurisdiction of the Philippines o Formed on LAKES o Formed on NAVIGABLE or FLOATABLE RIVERS Capable of affording a channel or passage for ships and vessels Must be sufficient not only to float bancas and light boats, but also bigger watercraft Deep enough to allow unobstructed movements of ships and vessels TEST: can be used as a highway of commerce, trade and travel Belong to the Owners of the nearest margins or banks if o Formed through successive accumulation of alluvial deposits o On NON-NAVIGABLE and NON-FLOATABLE RIVERS If island is in the middle: divided longitudinally in half.

CIVIL LAW REVIEWER

Chapter IV. QUIETING OF TITLE

Chapter IV. Quieting of Title


I. II. III. IV. IN GENERAL PURPOSE NATURE REQUISITES A. THERE IS A CLOUD ON TITLE TO REAL PROPERTY B. THE PLAINTIFF MUST HAVE LEGAL OR EQUITABLE TITLE TO OR INTEREST IN THE PROPERTY C. PLAINTIFF MUST RETURN THE BENEFITS RECEIVED FROM THE DEFENDANT PRESCRIPTION

as defendant. However, unlike suits in rem, a quasi in rem judgment is conclusive only between the parties. (Spouses Portic v. Cristobal) Justifications for quieting of title 1. To prevent future or further litigation on the ownership of the property 2. To protect the true title and possession 3. To protect the real interest of both parties 4. To determine and make known the precise state of the title for the guidance of all The action to quiet title does not apply 1. To questions involving interpretation of documents 2. To mere written or oral assertions of claims a. Unless made in a legal proceeding b. Or asserting that an instrument or entry in plaintiffs favor is not what it purports to be 3. To boundary disputes 4. To deeds by strangers to the title unless purporting to convey the property of the plaintiff 5. To instruments invalid on their face 6. Where the validity of the instrument involves a pure question of law

V.

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PROPERTY

Article 476, Civil Code. Whenever there is a cloud on title to real property or any interest therein, by reason of any instrument, record, claim, encumbrance or proceeding which is apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or unenforceable, and may be prejudicial to said title, an action may be brought to remove such cloud or to quiet the title. An action may also be brought to prevent a cloud from being cast upon title to real property or any interest therein. Article 478, Civil Code. There may also be an action to quiet title or remove a cloud therefrom when the contract, instrument or other obligation has been extinguished or has terminated, or has been barred by extinctive prescription.

IV. Requisites
REQUISITES OF AN ACTION TO QUIET TITLE 1. There is a CLOUD on title to real property or any interest to real property. 2. The plaintiff must have legal or equitable title to, or interest in the real property. 3. Plaintiff must return the benefits received from the defendant. A. There is a CLOUD on title to real property or any interest to real property 1. Cloud on title means a semblance of title, either legal or equitable, or a claim or a right in real property, appearing in some legal form but which is, in fact, invalid or which would be inequitable to enforce. 2. A cloud exists if: a. There is a claim emerging by reason of: Any instrument e.g. a contract, or any deed of conveyance, mortgage, assignment, waiver, etc. covering the property concerned Any record, claim, encumbrance e.g. an attachment, lien, inscription, adverse claim, lis pendens, on a title Any proceeding e.g. an extrajudicial partition of property

I.

In General

1. Applicable to real property 2. Basis: Equity comes to the aid of the plaintiff who would suffer if the instrument (which appear to be valid but is in reality void, ineffective, voidable or unenforceable) was to be enforced.

II. Purpose
1. To declare: a. The invalidity of a claim on a title b. The invalidity of an interest in property 2. To free the plaintiff and all those claiming under him any hostile claim on the property.

III. Nature: Quasi in Rem


1. A suit against a particular person or persons in respect to the res and the judgment will apply only to the property in dispute. 2. The action to quiet title are characterized as proceedings quasi in rem. Technically, they are neither in rem nor in personam. In an action quasi in rem, an individual is named

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B. The plaintiff must have legal or equitable title to, or interest in the real property
Article 477, Civil Code. The plaintiff must have legal or equitable title to, or interest in the real property which is the subject matter of the action. He need not be in possession of said property.

1. Legal title: the party is the registered owner of the property. 2. Equitable title: the person has the beneficial ownership of the property. C. Plaintiff must return the benefits received from the defendant
Article 479, Civil Code. The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have redounded to the plaintiffs benefit.

2. When the plaintiff is not in possession of the property, the action to quiet title may prescribe. a. 10 yrs. ordinary prescription b. 30 yrs. extraordinary prescription
Article 480, Civil Code. The principles of the general law on the quieting of title are hereby adopted insofar as they are not in conflict with this Code. Article 481, Civil Code. The procedure for the quieting of title or the removal of a cloud therefrom shall be governed by such rules of court as the Supreme Court shall promulgate.

NOTE: REQUISITES OF AN ACTION TO PREVENT A CLOUD 1. Plaintiff has a title to a real property or interest therein 2. Defendant is bent on creating a cloud on the title or interest therein. The danger must not be merely speculative or imaginary but imminent. 3. Unless the defendant is restrained or stopped, the title or interest of the plaintiff will be prejudiced or adversely affected.

V. Prescription of Action
1. When plaintiff is in possession of the property the action to quiet title does not prescribe. a. The reason is that the owner of the property or right may wait until his possession is disturbed or his title is

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b. The claim should appear valid or effective and extraneous evidence is needed to prove their validity or invalidity. Test: Would the owner of the property in an action for ejectment brought by the adverse party be required to offer evidence to defeat a recovery? As a general rule, a cloud is not created by mere verbal or parole assertion of ownership or an interest in property. c. Such instrument, etc. is, in truth and in fact, invalid, ineffective, voidable, or unenforceable, or has been extinguished or terminated, or has been barred by extinctive prescription. d. Such instrument, etc. may be prejudicial to the true owner or possessor.

assailed before taking steps to vindicate his right. b. An action to quiet title to property in ones possession is imprescriptible. The rationale for this rule has been aptly stated thus: The owner of real property who is in possession thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right. A person claiming title to real property, but not in possession thereof, must act affirmatively and within the time provided by the statute. Possession is a continuing right as is the right to defend such possession. So it has been determined that an owner of real property in possession has a continuing right to invoke a court of equity to remove a cloud that is a continuing menace to his title. Such a menace is compared to a continuing nuisance or trespass which is treated as successive nuisances or trespasses, not barred by statute until continued without interruption for a length of time sufficient to affect a change of title as a matter of law." (Pingol v. CA)

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Chapter V. CO-OWNERSHIP APPLICABLE TO CPG OR ACP IX. SPECIAL RULES ON OWNERSHIP OF DIFFERENT STORIES OF A HOUSE AS DIFFERENTIATED FROM THE PROVISIONS OF THE CONDOMINIUM ACT X. EXTINGUISHMENT OF CO-OWNERSHIP A. TOTAL DESTRUCTION OF THE THING OR LOSS OF THE PROPERTY CO-OWNED B. MERGER OF ALL INTERESTS IN ONE PERSON C. ACQUISITIVE PRESCRIPTION D. PARTITION OR DIVISION

Chapter V. Co-Ownership
I. II. DEFINITION CHARACTERTISTICS A. THERE IS A PLURALITY OF OWNERS BUT ONLY ONE REAL RIGHT OR OBJECT OF OWNERSHIP. B. THE RECOGNITION OF IDEAL SHARES OR ALIQUOT DEFINED BUT NOT PHYSICALLY IDENTIFIED C. EACH CO-OWNER HAS ABSOLUTE CONTROL OVER HIS IDEAL SHARE D. MUTUAL RESPECT AMONG CO-OWNERS IN REGARD TO USE, ENJOYMENT AND PRESERVATION OF THE THINGS AS A WHOLE. III. DIFFERENCE BETWEEN CO-OWNERSHIP AND JOINT TENANCY IV. DIFFERENCE BETWEEN CO-OWNERSHIP AND PARTNERSHIP V. SOURCES OF CO-OWNERSHIP A. LAW 1. COHABITATION 2. PURCHASE 3. INTESTATE SUCCESSION 4. DONATION 5. CHANCECOMMIXTION IN GOOD FAITH 6. HIDDEN TREASURES 7. EASEMENT OF PARTY WALL 8. OCCUPATIONHARVESTING AND FISHING 9. CONDOMINIUM LAW B. CONTRACTS 1. BY AGREEMENT OF 2 OR MORE PERSONS 2. BY UNIVERSAL PARTNERSHIP 3. BY ASSOCIATION AND SOCIETIES WITH SECRET ARTICLES VI. RIGHTS OF EACH CO-OWNER OVER THE THING OR PROPERTY OWNED IN COMMON A. TO USE THE THING ACCORDING TO THE PURPOSE INTENDED B. TO SHARE IN THE BENEFITS IN PROPORTION TO HIS INTEREST, PROVIDED THE CHARGES ARE BORNE BY EACH IN THE SAME PROPORTION C. TO BRING AN ACTION IN EJECTMENT D. TO COMPEL THE OTHER CO-OWNERS TO CONTRIBUTE TO THE EXPENSES FOR THE PRESERVATION OF THE PROPERTY OWNED IN COMMON AND TO THE PAYMENT OF TAXES E. TO OPPOSE ANY ACT OF ALTERATION F. TO PROTEST AGAINST ACTS OF MAJORITY WHICH ARE SERIOUSLY PREJUDICIAL TO THE MINORITY G. TO EXERCISE LEGAL REDEMPTION H. TO ASK FOR PARTITION VII. IMPLICATIONS OF CO-OWNERS RIGHT OVER HIS IDEAL SHARE A. RIGHTS OF A CO-OWNER B. EFFECT OF TRANSACTION BY EACH COOWNER VIII. RULES ON CO-OWNERSHIP NOT

I.

Definition

Article 484, Civil Code. There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of contracts, or of special provisions, coownership shall be governed by the provisions of this Title.

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II. Characteristics
A. There is a plurality of owners but only one real right or object of ownership 1. There are at least 2 persons 2. There is unity or material indivision of a single object. B. There are ideal shares defined but not physically identified
Article 485, Civil Code. The share of the coowners, in the benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void. The portions belonging to the co-owners in the coownership shall be presumed equal, unless the contrary is proved.

C. Each co-owner has absolute control over his ideal share Every co-owner has absolute ownership of his undivided interest in the co-owned property and is free to alienate, assign or mortgage his interest except as to purely personal rights. While a coowner has the right to freely sell and dispose of his undivided interest, nevertheless, as a co-owner, he cannot alienate the shares of his other coowners nemo dat qui non habet. (Acabal v. Acabal)

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D. Mutual respect among co-owners in regard to use, enjoyment and preservation of the things as a whole 1. The property or thing held pro-indiviso is impressed with a fiduciary character: each co-owner becomes a trustee for the benefit of his co-owners and he may not do any act prejudicial to the interest of his co-owners. 2. Until a judicial division is made, the respective part of each holder cannot be determined. The effects of this would be: a. Each co-owner exercises together with the others joint ownership over the pro indiviso property, in addition to his use and enjoyment of the same b. Each co-owner may enjoy the whole property and use it. Only limitation: a co-owner cannot use or enjoy the property in a manner that shall injure the interest of his other coowners. (Pardell v. Bartolome)

IV. Difference between and Partnership


Co-ownership

Co-ownership

III. Difference between and Joint Tenancy


Co-Ownership Origin Civil Law

Co-ownership

Joint Tenancy

Common Law Other names Tenancy in Common, Joint ownership, ownership in common, all for one, one for all Co-dominium Extent of ownership Every joint tenant owns Each co-owner owns the whole property undivided thing + own because their rights are ideal part/share of each inseparable Right to dispose of share A joint tenant may not dispose of his Each co-owner may share/interest without the dispose of his undivided consent of others share without the consent (rationale: he may of others. prejudice the others by alienating his share) Effect of death The ownership of a joint tenant dies with him, and his surviving joint tenants The share of a co-owner are subrogated to his descends to his heirs rights by virtue of jus accrescendi (survivorship) Effect of legal disability/incapacity Defense of one can be Defense against used by all, as prescription is exclusive disability/incapacity to the co-owner with inures to the benefit of disability/incapacity the others for purposes of

Partnership Creation By law, fortuitous event, occupancy, succession Only by contract or contract (no formalities of a contract necessary) Legal personality Partnership has a distinct Co-ownership has no personality from the legal personality partners Purpose Collective enjoyment of Profit or advancement of the property pecuniary interest Disposal of share A partner may not Each co-owner may dispose of his dispose of his undivided share/interest or transfer rd share without the consent the same to a 3 person of others without the consent of others Mutual representation No mutual representation Generally, a partner (except if there is a binds other partners special authority for such (there is mutual representation) representation) Effect of legal disability/ incapacity/ death Does not dissolve the coDissolves partnership ownership Profit distribution Must be proportional to Depends upon the the interest of each costipulation in their owner (not subject to contract stipulation) Duration General rule: an agreement to keep the No term limit set by law ownership for more than 10 years is void Attachment Creditors of a partner Creditors of a co-owner cannot attach and sell on can attach on the shares execution the shares of of others other partners in the partnership

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V. Sources of Co-Ownership
A. Law 1. Cohabitation: co-ownership between common law spouses The Family Code, in the following provisions, made the rules on coownership apply Article 147: between a man and a woman capacitated to marry each other

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Article 148: between a man and a woman not capacitated to marry each other Article 90: if matter is not provided in the FC Chapter on ACP, then rules on co-ownership will apply 2. Purchase creating implied trust: coownership between persons who agree to purchase property Article 1452, Civil Code. If two or more persons agree to purchase property and by common consent the legal title is taken in the name of one of them for the benefit of all, a trust is created by force of law in favor of the others in proportion to the interest of each. 3. Intestate succession: co-ownership between the heirs before partition of the estate a. Article 1078, Civil Code. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. b. Intestate Succession (without will) c. For as long as the estate is left undivided the heirs will be considered co-owners of the inheritance. If one of the heirs dies, his heirs will in turn be coowners of the surviving original heirs. 4. Donation: Co-ownership between donees Article 753, Civil Code. When a donation is made to several persons jointly, it is understood to be in equal shares, and there shall be no right of accretion among them, unless the donor has otherwise provided. 5. Chance/Commixtion in Good Faith: Coownership between owners of 2 things that are mixed by chance or by will of the owners Article 472, Civil Code. If by the will of their owners two things of the same or different kinds are mixed, or if the mixture occurs by chance, and in the latter case the things are not separable without injury, each owner shall acquire a right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused. 6. Hidden Treasure co-ownership between finder and owner of the land Article 438, Civil Code. Hidden treasure belongs to the owner of the land, building, or other property on which it is found.

Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one-half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science or the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. 7. Easement of Party Wall co-ownership of part-owners of a party wall Article 658, Civil Code. The easement of party wall shall be governed by the provisions of this Title, by the local ordinances and customs insofar as they do not conflict with the same, and by the rules of co-ownership. 8. Occupation: Harvesting and Fishing: coownership by two or more persons who have seized a res nullius thing 9. Condominium Law: co-ownership of the common areas by holders of units Sec. 6, RA 4726. The Condominium Act. Unless otherwise expressly provided in the enabling or master deed or the declaration of restrictions, the incidents of a condominium grant are as follows: (c) Unless otherwise, provided, the common areas are held in common by the holders of units, in equal shares, one for each unit. B. Contracts 1. By Agreement of Two or More Persons a. Article 494, Civil Code. No co-owner shall be obliged to remain in the coownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement.

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A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a coowner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. b. Two or more persons may agree to create a co-ownership c. Note: there is a 10-year term limit for ownership by agreement; BUT: Term may be extended by a new agreement 2. By the creation of a Universal Partnership a. Of all present property Article 1778, Civil Code. A partnership of all present property is that in which the partners contribute all the property which actually belongs to them to a common fund, with the intention of dividing the same among themselves, as well as all the profits which they may acquire therewith. Article 1779, Civil Code. In a universal partnership of all present property, the property which belonged to each of the partners at the time of the constitution of the partnership, becomes the common property of all the partners, as well as all the profits which they may acquire therewith. A stipulation for the common enjoyment of any other profits may also be made; but the property which the partners may acquire subsequently by inheritance, legacy, or donation cannot be included in such stipulation, except the fruits thereof. b. Of profits Article 1780, Civil Code. A universal partnership of profits comprises all that the partners may acquire by their industry or work during the existence of the partnership. Movable or immovable property which each of the partners may possess at the time of the celebration of the contract shall continue to pertain exclusively to

each, only the usufruct passing to the partnership. 3. By Associations and Societies with Secret Articles Article 1775, Civil Code. Associations and societies, whose articles are kept secret among the members, and wherein any one of the members may contract in his own name with third persons, shall have no juridical personality, and shall be governed by the provisions relating to co-ownership.

Rights of Each Co-owner over the Thing or Property Owned in Common 1. To use the thing according to the purpose intended (Jus Utendi) 2. To share in the benefits in proportion to his interest provided the charges are borne by each in the same proportion 3. To bring an action in ejectment 4. To compel the other co-owners to contribute to expense for preservation of the property owned in common and to the payment of taxes 5. To oppose any act of Alteration 6. To protest against acts of majority which are seriously prejudicial to the minority 7. To exercise legal redemption 8. To ask for partition Right use the thing according to the purpose intended (Jus Utendi)
Article 486, Civil Code. Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by agreement, express or implied.

1. Limitations on co-owners right: a. Use must be to the purpose for which it is intended. As stipulated in the agreement In the absence of agreement, the purpose for which it was ordinarily adapted according to its nature. In the absence of the above, the use for which it was previously or formerly devoted. b. Use must be without prejudice to the interest of the co-ownership.

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VI. Rights of Each Co-owner over the Thing or Property Owned in Common

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c.

Use must not prevent the other coowners from making use of the property according to their own rights.

property owned in common and to the payment of taxes


Article 488, Civil Code. Each co-owner shall have a right to compel the other co-owners to contribute to the expenses of preservation of the thing or right owned in common and to the taxes. Any one of the latter may exempt himself from this obligation by renouncing so much of his undivided interest as may be equivalent to his share of the expenses and taxes. No such waiver shall be made if it is prejudicial to the co-ownership.

Right to share in the benefits in proportion to his interest provided the charges are borne by each in the same proportion
Article 485, Civil Code. The share of the coowners, in the benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void. The portions belonging to the co-owners in the coownership shall be presumed equal, unless the contrary is proved.

Right to bring an action in ejectment


Article 487, Civil Code. Any one of the co-owners may bring an action in ejectment.

1. Action in Ejectment covers all kinds of action for recovery of possession (reivindicatoria, publiciana, forcible entry, unlawful detainer) 2. There is no need to include all the coowners as co-plaintiffs because the suit is deemed to be instituted for the benefit of all 3. But the action will not prosper if the action is brought for the benefit of the plaintiff alone and not for the co-ownership 4. Article 487 of the Civil Code, which provides simply that any one of the co-owners may bring an action in ejectment, is a categorical and an unqualified authority in favor of owner to evict the petitioners from the portions of lot. The rule is a co-owner may bring an action to exercise and protect the rights of all. When the action is brought by one co-owner for the benefit of all, a favorable decision will benefit them; but an adverse decision cannot prejudice their rights. (Resuena v. CA) Right to compel the other co-owners to contribute to expense for preservation of the

3. Procedure: Repairs for preservation


Article 489, Civil Code. Repairs for preservation may be made at the will of one of the co-owners, but he must, if practicable, first notify his co-owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority as determined in article 492.

a. Notify other co-owners, as far as practicable b. However, a co-owner can advance expenses for preservation of the property even without prior consent of others. He is entitled to reimbursement for the amount spent for necessary expenses.

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2. Changing the purpose of the thing The purpose of the thing may be changed by an agreement, express or implied, provided that the following will be observed: It does not cause injury or prejudice to the interest of the co-ownership Any act against the collective interest is an act against ownership. A co-owner cannot devote the community property to his exclusive use It does not prevent the use by other co-owners

1. This provision includes only necessary expenses and taxes, and NOT those for mere luxury, embellishment or pleasure a. Expenses for preservation: those which, if not made, would endanger the existence of the thing or reduce its value or productivity b. Not used for the improvement of the thing (what is intended is the preservation of the thing, not gaining profit from it) 2. Renunciation a. Other co-owners have the option not to contribute by renouncing so much of his undivided interest as may be equivalent to his share of the necessary expenses and taxes Must be express; thus, failure to pay is not a renunciation Requires the consent of other coowners because it is a case of dacion en pago (cessation of rights) involving expenses and taxes already paid (J.B.L. Reyes) b. A co-owner cannot renounce his share if it will be prejudicial to another co-owner

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4. Procedure: Embellishment or improvements a. Notify co-owners of improvements and embellishments to be made If no notification is made, the co-owner who advanced the expenses still has the right to be reimbursed if he proves the necessity of such repairs and the reasonableness of the expense EXCEPTION: If the others can prove that had he notified them, they could have hired the services of another who would charge less than the people with whom the one who advanced contracted or that they know of a store that sells the needed material at a cheaper price o Co-owner only entitled to be reimbursed for the amount that should have been spent had he notified the others, and difference shall be borne by him alone b. Decision by majority must be followed Right to oppose any act of Alteration
Article 491, Civil Code. None of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief.

4. Alteration v. Administration Alteration More permanent result and relate to the substance or form of the thing Nature: if the thing does not require any modification for its enjoyment, any modification that is made will be considered an alteration Consent: Unanimous consent of all Administration Refers to the enjoyment of the thing and is of transitory character When the thing in its nature requires changes, modifications can be considered as acts of simple administration
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Consent: mere majority is sufficient

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a. Alteration without consent of all is illegal The one who did the alteration will lose whatever he spent in case he is made to demolish the work he has done (no right to reimbursement) Damages to the non-consenting coowner can also be granted by the court b. Note: This is subject to ratification if co-owners decide to contribute to the expenses by reimbursing the co-owner who made the alteration (effect: benefit of alteration will inure to the coownership) Right to protest against acts of majority which are seriously prejudicial to the minority
Article 492(3), Civil Code. Should there be no majority, or should the resolution of the majority be seriously prejudicial to those interested in the property owned in common, the court, at the instance of an interested party, shall order such measures as it may deem proper, including the appointment of an administrator.

1. Alteration: a change which more or less permanently changes the use of a thing and adversely affecting the condition of the thing or its enjoyment by the others. 2. It involves: a. Change of the thing from the state or essence in which the others believe it should remain, or b. Withdrawal of the thing from the use to which they wish to be intended, or c. Any other transformation which prejudices the condition or substance of the thing or its enjoyment by the others 3. Rule: Any act of alteration requires UNANIMOUS CONSENT OF ALL COWORKERS a. BUT when there is unreasonable withholding of consent: the co-owner may go to court to seek adequate relief. b. Note: consent may be express or tacit c. Reason for the rule: alteration is an act of ownership, not of mere administration.

1. Acts of administration a. Acts of management that do not involve alteration of the property b. Acts which are temporary in character so much so that they do not bind the property for a long time c. Acts that do not create real rights over the common property 2. Rule: If there is a disagreement or conflict of opinions by and among the co-owners on the matter of administration and better enjoyment of the common property, the resolution of the co-owners

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Right to exercise legal redemption


Article 1620, Civil Code. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one. Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion to the share they may respectively have in the thing owned in common. Article 1623, Civil Code. The right of legal preemption or redemption shall not be exercised except within thirty days from the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given written notice thereof to all possible redemptioners. The right of redemption of co-owners excludes that of adjoining owners.

This right is not applicable to adjacent lands which are separated by brooks, drains, ravines, roads and other apparent servitudes for the benefit of other estates. If two or more adjoining owners desire to exercise the right of redemption at the same time, the owner of the adjoining land of smaller area shall be preferred; and should both lands have the same area, the one who first requested the redemption. b. Urban land Article 1622, Civil Code. Whenever a piece of urban land which is so small and so situated that a major portion thereof cannot be used for any practical purpose within a reasonable time, having been bought merely for speculation, is about to be re-sold, the owner of any adjoining land has a right of pre-emption at a reasonable price. If the re-sale has been perfected, the owner of the adjoining land shall have a right of redemption, also at a reasonable price. When two or more owners of adjoining lands wish to exercise the right of preemption or redemption, the owner whose intended use of the land in question appears best justified shall be preferred.

1. Redemption: Act of reclaiming possession of something by payment of a specific price 2. The 30-day redemption period starts from the date of written notification of the sale made by the co-owner. Without such written notice, the 30-day period does not start to run 3. Exceptions: a. Estoppel by laches (inaction) If there is oral notification and several years have passed (implied waiver) and there is reliance on the non-action of co-owners b. Estoppel by silence When there is duty to speak 4. Note: The written notification must come from the prospective vendor

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representing the controlling interest (not majority in number) shall be binding upon all co-owners. 3. Who can be the administrator? He or she may or may not be a coowner, PROVIDED that the co-owners delegated him or her. 4. What can an administrator do? a. PROVIDED there is a unanimous consent of all co-owners, an administrator may compromise on, donate, cede, alienate, mortgage, or encumber the common property b. If the amount of individual contribution is undetermined, the law presumes that they all contributed proportionately (Lavadia v. Cosme)

a. The vendor is in a better position to know things involving the property and the sale b. Redemption of the property by a coowner does not vest him sole ownership over said property. Redemption will inure to the benefit of all co-owners. Redemption is not a mode of termination of relationship. (Mariano v. CA) 5. Other cases where right of redemption is given a. Rural land Article 1621, Civil Code. The owners of adjoining lands shall also have the right of redemption when a piece of rural land, the area of which does not exceed one hectare, is alienated, unless the grantee does not own any rural land.

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Right to ask for partition


Article 494, Civil Code. No co-owner shall be obliged to remain in the co-ownership. Each coowner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the coownership.

30 days from notification of prospective coowner vendor) 3. To substitute another person in the enjoyment of thing 4. To renounce part of his interest to reimburse necessary expenses incurred by another coowner (Article 488)
Article 488, Civil Code. Each co-owner shall have a right to compel the other co-owners to contribute to the expenses of preservation of the thing or right owned in common and to the taxes. Any one of the latter may exempt himself from this obligation by renouncing so much of his undivided interest as may be equivalent to his share of the expenses and taxes. No such waiver shall be made if it is prejudicial to the co-ownership.

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1. Partition: segregation or division of a property in common to those to whom it belongs 2. Rule: Right to demand partition does not prescribe 3. Exceptions to the rule: a. When indivision within 10 years is stipulated by the co-owners b. When co-ownership is imposed as a condition in a donation or in a last will and testament by the transferor/donor/testator c. When from the nature of the property in common, it cannot be divided (i.e. party wall) d. When partition is generally prohibited by law (i.e. ACP, party wall) e. When the partition would render the thing unserviceable or the thing held in common is essentially indivisible If the thing cannot be physically partitioned, they may sell the thing and the co-owners may divide the proceeds) f. When acquisitive prescription has set in favor of a stranger to con-ownership or in favor of a co-owner

B. Effect of Transaction by Each Owner 1. Limited to his share in the partition 2. Transferee does not acquire any specific portion of the whole property until partition 3. Creditors of co-owners may intervene in the partition to attack the same if it is prejudicial (Art. 499)
Article 499, Civil Code. The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude or any other real rights belonging to them before the division was made. Personal rights pertaining to third persons against the co-ownership shall also remain in force, notwithstanding the partition.

Note: Creditors cannot ask for rescission even if not notified in the absence of fraud (Art. 497, Civil Code)
Article 497, Civil Code. The creditors or assignees of the co-owners may take part in the division of the thing owned in common and object to its being effected without their concurrence. But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity.

VIII. Rules on Co-Ownership Applicable to CPG or ACP


Not

VII. Implication of Co-owners Right over His Ideal Share


A. Rights of a Co-owner 1. To share in fruits and benefits 2. To alienate, mortgage, or encumber and dispose his ideal share (but other co-owners may exercise right of legal redemption within

These two regimes are governed by the provisions on the Family Code Even void marriages and cohabitation of incapacitated persons are governed by Article 50, 147, and 148 of the Family Code

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Chapter V. CO-OWNERSHIP master deed which shall contain, among others, the following: a. Description of the land on which the building or buildings and improvements are to be located; Description of the building or buildings, stating the number of storeys and basement, the number of units and their accessories, if any; Description of the common areas and facilities; A statement of the exact nature of the interest acquired or to be acquired by the purchased in the separate units and the common areas of the condominium projects. Where title to or to appurtenant interests in the common areas is to be held by a condominium corporation, a statement to this effect shall be included; A certificate of the registered owner of the property, if he is other than those executing the master deed, as well as of all registered holders of any lien or encumbrances on the property, that they consent to the registration of the deed; The following plans shall be appended to the deed as integral parts thereof: 1. A survey plan of the land included in the project, unless a survey plan of the same property had previously been filed in said office. 2. A diagrammatic floor plan of the building or buildings each unit, its relative location and approximate dimensions. g. Any reasonable restriction not contrary to law, morals, or public policy regarding the right of any condominium owner to alienate or dispose off his condominium. The enabling or master deed may be amended or revoked upon registration of an instrument executed by a simple majority of the registered owners of the property: Provided, That in a condominium project exclusively for either residential or commercial use, simple majority shall be on a per unit of ownership basis and that in the case of mixed use, simple majority shall be on a floor area of ownership basis: Provided, further, That prior notifications to all registered owners shall be submitted to the Housing and Land Use Regulatory Board and the city/municipal engineer for approval before it can be registered. Until registration of a revocation, the provisions of this Act shall continue to apply to such

IX. Special Rules on Ownership of Different Stories of a House as Differentiated from Provisions of the Condominium Act
RA 4726. THE CONDOMINIUM ACT Sec. 2. A Condominium is an interest in real property consisting of a separate interests in a unit in a residential, industrial or commercial building or in an industrial estate and an undivided interests in common, directly and indirectly, in the land, or the appurtenant interest of their respective units in the common areas. The real right in condominium may be ownership or any interest in real property recognized by law on property in the Civil Code and other pertinent laws. Sec. 3. As used in this Act, unless the context otherwise requires: b. Unit" means a part of the condominium project intended for any type of independent use or ownership, including one or more rooms or spaces located in one or more floors (or parts of floors) in a building or buildings and such accessories as may be appended thereto: Provided, that in the case of an industrial estate wherein the condominium project consists of several buildings, plants and factories may, by themselves, be considered separately as individual units as herein defined. c. "Project" means the entire parcel of real property divided or to be divided in condominiums, including all structures thereon. "Industrial Estate or Estate" means a certain tract of land which is subdivided and developed primarily for industrial purposes and which usually includes provisions for basic infrastructure facilities and common services such as roads, water, electricity, drainage and waste disposal system. "Common areas" means the entire project except all units separately granted or held or reserved. "To divide" real property means to divide the ownership thereof or other interests therein by conveying one or more condominium therein but less than the whole thereof.

b.

c.

d.

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e.

f.

d.

e.

h.

f.

Sec. 4. The provisions of this Act shall apply to property divided or to be divided into condominium only if there shall be recorded in the Register of Deeds of the province or city in which the property lies, and duly annotated in the corresponding certificate of title of the land, if the latter had been patented or registered under either the Land Registration or Cadastral Acts, an enabling or

CIVIL LAW REVIEWER property. d. Sec. 5. Any transfer or conveyance of a unit or an apartment, office or store or other space therein, shall include the transfer or conveyance of the undivided interest in the common areas or in a proper case, the membership or share holdings in the condominium corporation: Provided, however, That where the common areas in the condominium project are held by the owners of separate units as co-owners hereof, no condominium unit therein shall be conveyed or transferred to persons other than Filipino citizens or corporation at least 60% of the capital stock of which belong to Filipino citizens, except in cases of hereditary succession. Where the common areas in a condominium project are held by a corporation, no transfer or conveyance of a unit shall be valid if the concomitant transfer of the appurtenant membership or stockholding in the corporation will cause the alien interest in such corporation to exceed the limits imposed by existing laws. Sec. 6. Unless otherwise expressly provided in the enabling or master deed or the declaration of restrictions, the incidents of a condominium grant are as follows: a. the boundary of the unit granted are the interior surfaces of the perimeter walls, floors, ceiling, windows and doors thereof: Provided, that in the case of an industrial estate condominium projects, wherein whole buildings, plants or factories may be considered as unit defined under section 3 (b) hereof, the boundary of a unit shall include the outer surfaces of the perimeter walls of said buildings, plants or factories. The following are not part of the unit: bearing walls, columns, floors, roofs, foundations, and other common structural elements of the buildings; lobbies, stairways, hall ways and other areas of common use, elevator equipment and shafts, central heating, central refrigeration and central air conditioning equipment, reservoir, tanks, pumps and other central services and facilities, pipes, ducts, flues, chutes, conduits wires and other utility installations, wherever located, except the outlets thereof when located within the unit. There shall pass with the unit, as an appurtenant thereof, an exclusive casement for the use of the air space encompasses by the boundaries of the unit as it exists at any particular time and as the unit may lawfully be altered or reconstructed from time to time. Such easement shall be automatically terminated in any air space upon destruction of the units as to render it untenantable. Unless otherwise provided, the common areas are held in common by the holders of units, in equal share one for each unit.

Chapter V. CO-OWNERSHIP

A non-exclusive easement for ingress, egress and support through the common areas in appurtenant to each unit and the common areas are subject to such easement. Each condominium owner shall have the exclusive right to paint, repaint, tile, wax, paper or otherwise refinish and decorate the inner surfaces of the walls, ceilings, floors, windows and doors hounding his own unit: provided, that in the case of an industrial estate condominium unit, such right may be exercised over the external surfaces of the said unit. Each condominium owner shall have the exclusive right to mortgage, pledge or encumber his condominium and to have the same appraised independently of the other condominium owner. Each condominium owner has also the absolute right to sell or dispose of his condominium unless the master deed contains a requirements that the property be first offered to the condominium owners within a reasonable period of time before the same is offered to outside parties;

e.

f.

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g.

Sec. 7. Except as provided in the following section, the common areas shall remain undivided, and there shall be no judicial partition thereof. Sec. 8. Where several persons own condominium in a condominium project, an action may be brought by one or more such person for partition thereof, by sale of the entire project, as if the owners of all the condominium in such project were co-owners of the entire project in the same proportion as their interests in the common areas: Provided, however, that a partition shall be made only upon a showing: a. That three years after damage or destruction to the project which renders a material part thereof unfit for its use prior thereto, the project had not been rebuilt or repaired substantially to its state prior to its damage or destruction; or b. That damage or destruction to the project has rendered one half or more of the units therein untenantable and that condominium owners holding in aggregate more than 30 percent interest in the common areas are opposed to the repair or restoration of the projects; or c. That project has been in existence in excess of 50 years, that it is obsolete and uneconomical, and that condominium owners holding in aggregate more than 50 percent interest in the common areas are opposed to repair or restoration or

b.

c.

CIVIL LAW REVIEWER remodeling or modernizing of the project; or d. That the project or a material part thereof has been condemned or expropriated and that the project is no longer viable, or that the condominium owners holding in aggregate more than 70 percent interest in the common areas are opposed to the continuation of the condominium regime after expropriation or condemnation of a material proportion thereof; or e. That the condition for such partition by sale set forth in the declaration of restrictions duly registered in accordance with the terms of this Act, have been met. Sec. 9. The owner of a project shall, prior to the conveyance of any condominium therein, register a declaration of restrictions relating to such project, which restrictions shall constitute a lien upon each condominium in the project, and shall insure to and bind all condominium owners in the project. Such liens, unless otherwise provided, may be enforced by any condominium owner in the project or by the management body of such project. The Register of Deeds shall enter and annotate the declaration of restrictions upon the certificate of title covering the land included within the project, if the land is patented or registered under the Land Registration or Cadastral Acts. The declaration of restrictions shall provide for the management of the project by anyone of the following management bodies: a condominium corporation, an association of the condominium owners, a board of governors elected by condominium owners, or a management agent elected by the owners or by the board named in the declaration. It shall also provide for voting majorities quorums, notices, meeting date, and other rules governing such body or bodies. Such declaration of restrictions, among other things, may also provide: a. As to any such management body; 1. For the powers thereof, including power to enforce the provisions of the declarations of restrictions; 2. For maintenance of insurance policies, insuring condominium owners against loss by fire, casualty, liability, workmen's compensation and other insurable risks, and for bonding of the members of any management body; 3. Provisions for maintenance, utility, gardening and other services benefiting the common areas, for the employment of personnel necessary for the operation of the building, and legal, accounting and other professional and technical services; 4. For purchase of materials, supplies and the like needed by the common areas; 5.

Chapter V. CO-OWNERSHIP For payment of taxes and special assessments which would be a lien upon the entire project or common areas, and for discharge of any lien or encumbrance levied against the entire project or the common areas; 6. For reconstruction of any portion or portions of any damage to or destruction of the project; 7. The manner for delegation of its powers; 8. For entry by its officers and agents into any unit when necessary in connection with the maintenance or construction for which such body is responsible; 9. For a power of attorney to the management body to sell the entire project for the benefit of all of the owners thereof when partition of the project may be authorized under Section 8 of this Act, which said power shall be binding upon all of the condominium owners regardless of whether they assume the obligations of the restrictions or not. b. The manner and procedure for amending such restrictions: Provided, That the vote of not less than a majority in interest of the owners is obtained. c. For independent audit of the accounts of the management body; For reasonable assessments to meet authorized expenditures, each condominium unit to be assessed separately for its share of such expenses in proportion (unless otherwise provided) to its owners fractional interest in any common areas; For the subordination of the liens securing such assessments to other liens either generally or specifically described; For conditions, other than those provided for in Sections eight and thirteen of this Act, upon which partition of the project and dissolution of the condominium corporation may be made. Such right to partition or dissolution may be conditioned upon failure of the condominium owners to rebuild within a certain period or upon specified inadequacy of insurance proceeds, or upon specified percentage of damage to the building, or upon a decision of an arbitrator, or upon any other reasonable condition.

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d.

e.

f.

Sec. 10. Whenever the common areas in a condominium project are held by a condominium corporation, such corporation shall constitute the management body of the project. The corporate purposes of such a corporation shall be limited to the holding of the common areas, either in ownership or any other interest in real property

CIVIL LAW REVIEWER recognized by law, to the management of the project, and to such other purposes as may be necessary, incidental or convenient to the accomplishment of said purposes. The articles of incorporation or by-laws of the corporation shall not contain any provision contrary to or inconsistent with the provisions of this Act, the enabling or master deed, or the declaration of restrictions of the project. Membership in a condominium corporation, regardless of whether it is a stock or non-stock corporation, shall not be transferable separately from the condominium unit of which it is an appurtenance. When a member or stockholder ceases to own a unit in the project in which the condominium corporation owns or holds the common areas, he shall automatically cease to be a member or stockholder of the condominium corporation. Sec. 11. The registration and regulation of a condominium corporation shall be vested with the Housing And Land Use Regulatory Board (HLURB) and the term of the said corporation shall be coterminous with the duration of the subdivision projects, the provision of the corporation law to the contrary notwithstanding. Sec. 12. The dissolution of the condominium corporation in any manner and any of the causes provided by law shall be governed by the provisions of the Title XIV of the Corporation Code. Sec. 13. Until the enabling or the master deed of the project in which the condominium corporation owns or holds the common areas is revoked the corporation shall not be voluntarily dissolved through an action for dissolution under Rule 104 of the Rules of Court except upon a showing: a. The three years after damage or destruction to the project in which damage or destruction renders a materials part thereof unfit for its use prior thereto, the project has not been rebuilt or repaired substantially to its state prior to its damage or destruction; or The damage or destruction to the project has rendered one half or more of the units therein untenantable and that more than 30 percent of the member of the corporation entitled to vote, if a stock corporation, are opposed to the repair or reconstruction of the project; or That the project has been in existence excess of 50 years, that it is obsolete and uneconomical and that more than 50 percent of the members of the corporation if non-stock or stockholders representing more than 50 percent of the capital stock entitled to vote, if a stock corporation, are opposed to the repair or restoration or remodeling or modernizing of the project; or d.

Chapter V. CO-OWNERSHIP That project or material part thereof has been condemned or expropriated and that the project is no longer viable or that the members holding in aggregate more than 70 percent interest in the corporation if nonstock, or the stockholders representing more than 70 percent of the capital stock entitled to vote, if a stock corporation, are opposed to the continuation of the condominium regime after expropriation or condemnation of a material portion thereof; or That the conditions for such a dissolution set forth in the declaration of restrictions of the project in which the corporation, are opposed to the continuation of the condominium regime after expropriation or condemnation of a material portion thereof.

e.

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Sec. 14. The condominium corporation may also be dissolved by the affirmative vote of all the stockholders or members thereof at a general or special meeting duly called for such purpose: Provided, that all the requirements of Section 62 of the Corporation Law are complied with. xxx Sec. 16. A condominium corporation shall not, during its existence, sell, exchange, lease or otherwise dispose of the common areas owned or held by it in the condominium project unless authorized by the affirmative vote of a simple majority of the registered owners: provided, that prior notification to all registered owners are done and provided further, that the condominium corporation may expand or integrate the project with another upon the affirmative vote of a simple majority of the registered owners, subject only to the final approval of the HLURB. xxx Sec. 19. Where the enabling or master deed provides that the land included within a condominium project are to be owned in common by the condominium owners therein the Register of Deeds may at the request of all the condominium owner and upon surrender of all their condominium owner's copies, cancel the certificate of title of the property and issue a new one in the name of said condominium owners as pro-indiviso co-owners thereof. xxx Sec. 23. Where, in an action for partition of a condominium corporation on the ground that the project or a material part thereof has been condemned or expropriated, the court finds that the condition provided in this Act or in the declaration have not been met, the court may decree a reorganization of the project declaring which portion or portions of the project shall continue as a

b.

c.

CIVIL LAW REVIEWER condominium project, the owners thereof, and the respective rights of the remaining owners and the just compensation, if any, that a condominium owner may be entitled to due to deprivation of his property. Upon receipt of a copy of the decree, the Register of Deeds shall enter and annotate the same on the pertinent certificate of title. Sec. 24. Any deed declaration or plan for a condominium project shall be liberally construed to facilitate the operation of the project, and its provisions shall be presumed to be independent and several. Sec. 25. The building and design standards for condominium projects to be promulgated by HLURB shall provide for, among others, accessibility features for disabled persons pursuant to Batas Pambansa Bilang 344 of 1994. Sec. 26. Whenever real property has been divided into condominiums, each condominium separately owned shall be separately assessed, for purposes of real property taxation and other tax purposes, to the owners thereof and tax on each such condominium shall constitute a lien solely thereon. Sec. 27. All acts or parts of Acts in conflict on inconsistent with this Act are hereby amended insofar as condominium and its incidents are concerned.

Chapter V. CO-OWNERSHIP

What Does the Housing and Land Use Regulatory Board Do? They hear the complaints of buyers. Important Documents in Condo Ownership 1. Deed of sale 2. Master deed (Sec. 4) 3. Declaration of restrictions (Sec. 9): pertains to how common areas will be governed and who will do the governing a. i.e. how to contribute to common area expenses: contribution to maintenance, upkeep, repair of common areas included b. there is an Assessment, which is a lien upon the condo unit

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X. Extinguishment of Co-Ownership
A. Total destruction of thing or loss of the property co-owned Is there still co-ownership if a building is destroyed?Yes, over the land and the debris. B. Merger of all interests in one person C. Acquisitive Presciption By whom 1. A third person (Art. 1106) 2. A co-owner against the other co-owners Requisites 1. Unequivocal acts of repudiation of the rights of the other co-owners (you oust the other co-owners) a. Must be shown by clear and convincing evidence b. Must be within the knowledge of the other co-owners c. Must not be a mere refusal to recognize the others as co-owners 2. Open and adverse possession - Not mere silent possession Note: there is a presumption that possession of a co-owner is NOT adverse Prescription only arises and produces all effects when the acts are clearly meant to oust the rights of the other co-owners D. Partition or Division Effects of Partition 1. Confers upon each heir the exclusive ownership of the property adjudicated to him

Concept of Condominium It is an interest in real property consisting of a: 1. SEPARATE INTEREST in a unit in a a. residential, or b. industrial, or c. commercial building 2. UNDIVIDED INTEREST in common directly or indirectly, a. in the land on which it is located b. in other common areas of the building When Ownership of the Unit is Acquired 1. Ownership is acquired only after the buyer had fully paid the purchase price. 2. The ownership of the unit is what makes the buyer a shareholder in the condominium. Note: The condominium law effectively separates the building from the land (by a master deed) 3. Building is deemed an accessory Amendments Co-ownership in common areas means shared expenses in these areas 1. Sec 4: simple majority of the property 2. Sec 16: common areas may be disposed by affirmative vote of a simple majority of the registered owners

CIVIL LAW REVIEWER

Chapter V. CO-OWNERSHIP

2. Co-heirs shall be reciprocally bound to warrant the title to and the quality of each property adjudicated 3. Reciprocal obligation of warranty shall be proportionate to the respective hereditary shares of co-heirs 4. An action to enforce warranty must be brought within 10 years from the date the right accrues 5. The co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate Note: Unless partition is effected, each heir cannot claim sole ownership over a definite portion of the land and cannot dispose of the same. Heirs become the undivided owner of the whole estate each co-owner shall have full ownership if his part even as to fruits and benefits. He may alienate, assign or mortgage his share. The effect of such act shall be limited to the portion allotted to him during partition. Until said partition though, he cannot alienate a specific part of the estate. A co-owner cannot adjudicate to himself a definite portion owned in common until partition by agreement or by a judicial decree. Until then, they can only sell their successional rights. (Carvaria v. CA) Rights of Owners Creditors of Individual Co-

Form: Oral or Written (Statute of Frauds does not operate here because it is not a conveyance of property but a mere segregation or designation of which parts belong to whom) Rules of Court does not preclude agreements or settlements. Action for Partition: a. WON the plaintiff is indeed a co-owner of the property b. HOW will the property be divided between the plaintiff and defendant. Intervention of creditors and assignees: a. The law does not expressly require that there should be a previous notice to the creditors and assignees before a partition can be validly made, but the right of creditors and assignees to take part in the division presupposes the duty to notify them. b. If notice is not given, the partition will not be binding on them. c. Once notice has been given, it is the duty of creditors and assignees to intervene and make known their stand. i. If they fail to do this, they cannot question the division made, except in case of fraud. ii. If they formulate a formal question to its being made, they can contest such partition mad in spite of their opposition.

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Article 497, Civil Code. The creditors or assignees of the co-owners may take part in the division of the thing owned in common and object to its being effected without their concurrence. But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity.

Creditors referred to in the provision: All creditors, whether ordinary or preferred, who became such during the subsistence of the co-ownership. Rule: The creditors are allowed to take part in the partition. Reason for the rule: They own part of the interest of the o-owners who made the assignment or alienation.

Procedure for Partition Governing rule: Rule 69 of the Rules of Court How: By agreement by parties or by judicial decree

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Chapter VI. POSSESSION

Chapter VI. Possession


I. II. DEFINITION AND CONCEPT DEGREES OF POSSESSION A. MERE HOLDING WITHOUT TITLE WHATSOEVER, AND IN VIOLATION OF THE RIGHT OF THE OWNER B. POSSESSION WITH JURIDICAL TITLE BUT NOT THAT OF OWNERSHIP C. POSSESSION WITH JUST TITLE, BUT NOT FROM THE TRUE OWNER D. POSSESSION WITH JUST TITLE FROM THE TRUE OWNER III. CLASSES OF POSSESSION A. NATURAL POSSESSION B. CIVIL POSSESSION IV. CASES OF POSSESSION A. POSSESSION IN ONES OWN NAME AND POSSESSION IN THE NAME OF ANOTHER B. POSSESSION IN THE CONCEPT OF AN OWNER AND POSSESSION IN THE CONCEPT OF A HOLDER C. POSSESSION IN GOOD FAITH AND POSSESSION IN BAD FAITH V. WHAT THINGS OR RIGHTS MAY BE POSSESSED VI. WHAT MAY NOT BE POSSESSED BY PRIVATE PERSONS VII. ACQUISITION OF POSSESSION A. WAYS OF ACQUIRING POSSESSION B. BY WHOM MAY POSSESSION BE ACQUIRED C. WHAT DO NOT AFFECT POSSESSION D. RULES TO SOLVE CONFLICTS OF POSSESSION VIII. EFFECTS OF POSSESSION A. RIGHT TO BE PROTECTED IN HIS POSSESSION B. ENTITLEMENT TO FRUITS C. REIMBURSEMENT FOR EXPENSES D. GOOD FAITH (IN CONCEPT OF OWNER) IS EQUIVALENT TO TITLE IX. EFFECT OF POSSESSION IN THE CONCEPT OF OWNER X. LOSS OF POSSESSION A. ABANDONMENT B. ASSIGNMENT C. DESTRUCTION OR TOTAL LOSS OF THING OR THING GOES OUT OF COMMERCE D. POSSESSION BY ANOTHER FOR MORE THAN 1 YEAR

2. It is the holding of a thing or a right, whether by material occupation or by the fact that the thing or the right is subjected to the action of our will. (Manresa) 3. It is an independent right apart from ownership.
Right of Possession (jus possessionis) Independent right Right to possess (jus possidendi) Incident to ownership

4. Possession includes the idea of occupation. It cannot exist without it. (Exceptions: Art. 537) Essential Requisites of Possession 1. Corpus possessionis: Holding (actual or constructive) of a thing or exercise of a right, if right is involved. a. General Rule: Possession and cultivation of a portion of a tract under claim of ownership of all is a constructive possession of all, if the remainder is not in adverse possession of another. b. Doctrine of constructive possession applies when the possession is under title calling for the whole. It does not apply where possession is without title. Note: Possession in the eyes of law does not mean that a man has to have his feet on every square meter of the ground before it can be said that he is in possession. The general rule is that the possession and cultivation of a tract of land under a claim of ownership of all, is a constructive possession of all, if the remainder is not in adverse possession of another. (Ramos v. Director of Lands) 2. Animus possidendi: Intention to possess a. Animus possidendi is essential in possession. There is no possession if the holder does not want to exercise the rights of a possessor. Animus possidendi is implied from the acts of the possessor. b. Animus possidendi may be contradicted and rebutted by evidence to prove that the person who is in possession, does not in fact exercise power or control and does not intend to do so .

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I.

Definition

Article 523, Civil Code. Possession is the holding of a thing or the enjoyment of a right.

Concept of Possession 1. To possess, in a grammatical sense, means to have, to physically and actually occupy a thing, with or without right. (Sanchez Roman)

CIVIL LAW REVIEWER

Chapter VI. POSSESSION

II. Degrees of Possession


A. Mere holding or possession without title whatsoever and in violation of the right of the owner e.g. possession of a thief or usurper of land Here, both the possessor and the public know that the possession is wrongful. B. Possession with juridical title but not that of ownership e.g. possession of a tenant, depository agent, bailee trustee, lessee, antichretic creditor. This possession is peaceably acquired. This degree of possession will never ripen into full ownership as long as there is no repudiation of concept under which property is held. C. Possession with just title or title sufficient to transfer ownership, but not from the true owner e.g. possession of a vendee from a vendor who pretends to be the owner. This degree of possession ripens into full ownership by lapse of time. D. Possession with a just title from the true owner. This is possession that springs from ownership.

Code, cannot and should not become owners.

IV. Cases of Possession


A. Possession for Oneself, or Possession Exercised in Ones Own Name and Possession in the Name of Another.
Article 524, Civil Code. Possession may be exercised in one's own name or in that of another.

Name under which possession may be exercised 1. In ones own name the fact of possession and the right to such possession is found in the same person. 2. In the name of another the one in actual possession is without any right of his own, but is merely an instrument of another in the exercise of the latters possession. Kinds of possession in the name of another 1. Necessary arises by operation of law e.g. representatives who exercise possession in behalf of a conceived child, juridical persons, persons not sui juris and the conjugal partnership 2. Voluntary effected through the mutual consent of the parties e.g. agents or administrators appointed by the owner or possessor. Third person may also voluntary exercise possession in the name of another, but it does not become effective unless ratified by the person in whose name it is exercise. B. Possession in the Concept of an Owner, and Possession in the Concept of a Holder with the Ownership Belonging to Another
Article 525, Civil Code. The possession of things

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III. Classes of Possession


The Old Civil Code had a distinction between natural possession and civil possession. This distinction has been abolished by the present Code. A. Natural Possession Physical holding of a thing (detention); all retention or enjoyment of a thing or right. B. Civil Possession Natural possession coupled with the intention of acquiring ownership of the thing or right. The following may be said to have civil possession: a. The owner himself, who holds and enjoys the things belonging to him. b. The possessor who is not the owner but has the intention to act as such, and is considered as such by others. c. The thief and the usurper who, in spite of their intention and the fact that they are civil possessors according to the

or rights may be had in one of two concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person. 1. Possession in Concept of Holder: One who possesses as a mere holder, not in the concept of owner, acknowledges in another a superior right which he believes to be ownership, whether his belief be right or wrong. e.g. tenant, usufructuary, borrower in commodatum.

CIVIL LAW REVIEWER

Chapter VI. POSSESSION

2. Possession in Concept of Owner: May be exercised by the owner himself or one who claims to be so. When a person claims to be the owner of a thing, whether he believes so or not, acting as an owner, and performing acts of ownership, and he is or may be considered as the owner by those who witness his exercise of proprietary rights, then he is in the possession of an owner. This is the kind of possession that ripens into ownership under Article 540, when such possession is public, peaceful and uninterrupted (see Art. 1118). Effects of Possession in Concept of an Owner a. Converted into ownership by the lapse of time necessary for prescription b. Possessor can bring all actions necessary to protect his possession, availing himself of any action which an owner can bring, except accion revindicatoria which is substituted by accion publiciana. c. He can ask for the inscription of possession in the registry of property d. Upon recovering possession from one who has unlawfully deprived him of it, he can demand fruits and damages e. He can do on the thing possessed everything that the law authorizes an owner to do; he can exercise the right of pre-emption and is entitled to the indemnity in case of appropriation. C. Possession in Good Possession in Bad Faith Faith and

It implies freedom from knowledge and circumstances which ought to put a person on inquiry. The belief of a possessor that he is the owner of the thing must be based upon the title or mode of acquisition, such as a sale, a donation, inheritance or other means of transmitting ownership; for without this, there can be no real, wellgrounded belief of ones ownership. Error in the application of the law, in the legal solutions that arise from such application, in the appreciation of legal consequence of certain acts, and in the interpretation of doubtful provisions or doctrines, may properly serve as basis for good faith. A misconception of the law, no matter how honest cannot have the effect of making one a possessor in good faith, when he does not hold a title valid in form or a deed sufficient in terms to transfer property.

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Article 526, Civil Code. He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it. He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith.

2. Possessor in bad faith one who knows his title is defective Only personal knowledge of the flaw in the title or mode of acquisition can make him a possessor in bad faith for bad faith is not transmissible from one person to another. Mistake upon a doubtful or difficult question of law as a basis of good faith Mistake or ignorance of the law, by itself, cannot become the basis of good faith. What makes the error or ignorance a basis of good faith is the presence of an apparent doubt or difficulty in the law. In other words, the law is complex, ambiguous, or vague such that it is open to two or more interpretations. When the ignorance of the law is gross and inexcusable, as when a person of average intelligence would know the law, such ignorance cannot be the basis of good faith. Otherwise, the intendment of Article 3 which states that, Ignorance of the law excuses no one from compliance therewith, will be defeated.

1. Possessor in good faith one who is unaware that there exists a flaw which invalidates his acquisition of the thing. Good faith consists in the possessors belief that the person from whom he received a thing was the owner of the same and could convey his title.

V. What Things May be Possessed


Article 530, Civil Code. Only things and rights which are susceptible of being appropriated may be the object of possession.

Not all things susceptible of appropriation can be the object of prescription (See Art. 1113)

CIVIL LAW REVIEWER

Chapter VI. POSSESSION

VI. What May Not Be Possessed by Private Persons


1. Res Communes 2. Property of Public Dominion 3. Right under discontinuous apparent easement

tranferee the things which are being transferred 3. By execution of proper acts under legal formalities This mode of acquiring possession refers to juridical acts or the acquisition of possession by sufficient title evidenced by the performance of required formalities. Examples: Donations Succession Contracts (like a sale with right to repurchase) Judicial possession Execution of judgments Execution and registration of public instruments Inscription of possessory information titles The execution of the required formalities is equivalent to delivery of the property subject thereof. B. By Whom May Possession Be Acquired
Article 532, Civil Code. Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by any person without any power whatever: but in the last case, the possession shall not be considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridical consequences of negotiorum gestio in a proper case.

and/or

non-

VII. Acquisition of Possession


A. Ways of Acquiring Possession
Article 531, Civil Code. Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right.

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1. By material occupation of the thing Material occupation occupation, under this provision, is used in its ordinary meaning or general sense and not in its technical meaning under Article 712, which defines occupation as a mode of acquiring ownership. Possession acquired by material occupation is only possession as a fact, not the legal right of possession. Constructive delivery is considered as an equivalent of material occupation in two situations where such occupation is essential to the acquisition of possession: Tradicion brevi manu takes place when one who possess a thing by title other than ownership, continues to possess the same under a new title, that of ownership. Tradicion constitutum possessorium takes place when the owner alienates the thing, but continues to posses the same under a different title. 2. By subjection to the action of ones will This mode of acquiring possession refers more to the right of possession than to possession as a fact. The action of our will must be juridical, in the sense that it must be according to law. This includes the following kinds of constructive delivery: Tradicion symbolica effected by delivering some object or symbol placing the thing under the control of the transferee Tradicion longa manu effected by the transferor pointing out to the

Possession may be acquired by 1. by the same person 2. by his legal representative 3. by his agent 4. by any person without any power whatsoever but subject to ratification, without prejudice to proper case or negotiorum gestio (Arts. 2144, 2149, 2150) 5. qualifiedly, minors and incapacitated persons By the same person Elements of personal acquisition: 1. Must have the capacity to acquire possession 2. Must have the intent to possess 3. The possibility to acquire possession must be present.

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Chapter VI. POSSESSION the advantages of the same shall be liable for obligations incurred in his interest, and shall reimburse the officious manager for the necessary and useful expenses and for the damages which the latter may have suffered in the performance of his duties. The same obligation shall be incumbent upon him when the management had for its purpose the prevention of an imminent and manifest loss, although no benefit may have been derived.

By his legal representative Requisites of acquisition through another: 1. That the representative or agent has the intention to acquire the thing or exercise the right for another, and not for himself 2. That the person for whom the thing has been acquired or the right exercised, has the intention of possessing such thing or exercising such right Note: Bad faith is personal and intransmissible. Its effects must be therefore, be suffered only by the person who acted in bad faith; his heir should not be saddled with the consequences Good faith can only benefit the person who has it; and the good faith of the heir cannot erase the effects of bad faith of his predecessor.
Article 534, Civil Code. On who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him except from the date of the death of the decedent.

Qualifiedly, persons

minors

and

incapacitated

By any person without any power whatsoever but subject to ratification, without prejudice to proper case or negotiorum gestio (Arts. 2144, 2149, 2150)
Article 2144, Civil Code. Whoever voluntarily takes charge of the agency or management of the business or property of another, without any power from the latter, is obliged to continue the same until the termination of the affair and its incidents, or to require the person concerned to substitute him, if the owner is in a position to do so. This juridical relation does not arise in either of these instances: 1. When the property or business is not neglected or abandoned; 2. If in fact the manager has been tacitly authorized by the owner. In the first case, the provisions of Articles 1317, 1403, No. 1, and 1404 regarding unauthorized contracts shall govern. In the second case, the rules on agency in Title X of this Book shall be applicable. Article 2149, Civil Code. The ratification of the management by the owner of the business produces the effects of an express agency, even if the business may not have been successful. Article 2150, Civil Code. Although the officious management may not have been expressly ratified, the owner of the property or business who enjoys

Incapacitated all those who do not have the capacity to act (insane, lunatic, deafmutes who cannot read and write, spendthrifts and those under civil interdiction) Object of possession things only, not rights. Method of acquisition material occupation; acquisition by means for which the incapacitated person has the capacity, such as acquisition by succession, testate or intestate, or by donations propter nuptias, pure and simple donations

C. What Do Not Affect Possession


Article 537, Civil Code. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession.

1. Acts merely tolerated Those which by reason of neighborliness or familiarity, the owner of property allows his neighbor or another person to do on the property; Those particular services or benefits which ones property can give to another without material injury or prejudice to the owner, who permits them out of friendship or courtesy Acts of little disturbances which a person, in the interest of neighborliness or friendly relations permits others to do on his property, although continued for a long time, no right will be acquired by prescription Note: Permissive use merely tolerated by the possessor cannot affect possession

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Article 535, Civil Code. Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives in order to exercise the rights which from the possession arise in their favor.

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and cannot be the basis of acquisitive prescription. Possession to constitute the foundation of prescriptive right, must be possession under claim of title, it must be adverse. (Cuaycong v. Benedicto) 2. Acts executed clandestinely and without the knowledge of the possessor
Article 1108, Civil Code. Possession has to be in the concept of an owner, public, peaceful and uninterrupted.

General Rule Possession cannot be recognized in two different personalities, except in cases of copossession by co-possessors without conflict of claims of interest. In case of conflicting possession preference is given to 1. Present possessor or actual possessor 2. If there are two or more possessors, the one longer in possession 3. If the dates of possession are the same, the one who presents a title 4. If all conditions are equal, the thing shall be placed in judicial deposit pending determination of possession or ownership through proper proceedings

Article 536, Civil Code. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing.

VIII.

Effects of Possession

A. Right to be Protected in His Possession In general, every possessor has a right to be respected in his possession; if disturbed therein, possessor has a right to be protected in or restored to said possession.
Article 539, Civil Code. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.

Possession acquired by force, not only when one forcibly takes away the property from another, but also when one occupied the property in the property in the absence of another, and repels the latter upon his return. Force may be actual or threatened; and may be employed by the possessor himself, or by another for him, and against any possessor. Effect on Possession: Acts mentioned do not constitute true possession. They do not interrupt the period of prescription nor affect the rights to the fruits. For all purposes that may be favorable to the true possessor, his possession is not considered interrupted.

D. Rules to Solve Conflicts of Possession


Article 538, Civil Code. Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of copossession. Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings.

Every possessor includes all kinds of possession, from that of an owner to that of a mere holder, except that which constitutes a crime. Reason for the rule: To prevent anyone from taking the administration of justice into his own hands. Even the owner cannot forcibly eject the possessor, but must resort to the courts. Actions to Recover Possession 1. Summary proceedings Forcible entry and Unlawful detainer
Article 1674, Civil Code. In ejectment cases where an appeal is taken the remedy granted in Article 539, second paragraph, shall also apply, if the higher court is satisfied that the lessee's appeal is

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3. Acts of violence as long as the possessor objects thereto (i.e. he files a case)

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CIVIL LAW REVIEWER frivolous or dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten days referred to in said article shall be counted from the time the appeal is perfected.

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It is only the conviction of ownership externally manifested, which generates ownership. Acts of possessory character done by virtue of a license or mere tolerance on the part of the real owner are not sufficient and will not confer title by prescription or adverse possession. The following cannot acquire title by prescription: 1. Lessees, trustees, pledges, tenants on shares or planters and all those who hold in the name or representation of another; 2. Mere holders placed in possession of the property by the owner, such as agents, employees; 3. Those holding in a fiduciary character, like receivers, attorneys, depositaries and antichretic creditors 4. Co-owner, with regard to common property; Except: When he holds the same adversely against all of them with notice to them the exclusive claim of ownership
Article 542, Civil Code. The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded.

Plaintiff may ask for writ of preliminary mandatory injunction within 10 days from filing of complaint in forcible entry (Art. 539). The same writ is available in unlawful detainer actions upon appeal. (Art. 1674) Forcible entry and Unlawful Detainer Rule 70, Rules of Court gives any person deprived of the possession of any land or building by force, intimidation, strategy, or stealth at any time within one year after such unlawful deprivation, the action of forcible entry. by force, intimidation, strategy, or stealth includes every situation or condition under which one person can wrongfully enter upon real property and exclude another, who has had prior possession therefrom.

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2. Accion Publiciana (based on superior right of possession, no ownership) Action for the recovery of possession of real property upon mere allegation and proof of a better title thereto 3. Accion Reinvindicatoria (recovery of possession based on a claim of ownership) An action setting up title and right to possession Not barred by a judgment in an action for forcible entry and unlawful detainer 4. Action for Replevin (possession ownership for movable property) Lawful Possessor Can Employ Self-help
Article 429, Civil Code. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property Article 540, Civil Code. Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion.

Refers to all kinds of possession, whether in concept of owner or not, in good faith or in bad faith, and in ones own name or anothers in reference to things only, NOT rights.
Article 543, Civil Code. Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the copossession lasted. Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption, the Rules of Court shall apply.

or

B. Entitlement to fruits possessor in good faith/bad faith (Art. 544, 549)


Article 544, Civil Code. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted. Natural and industrial fruits are considered received from the time they are gathered or severed. Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.

To consolidate title by prescription, the possession must be under claim of ownership, and it must be peaceful, public and uninterrupted

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Chapter VI. POSSESSION

Right of the possessor in good faith Only limited to the fruits of the thing. He must restore the fruits received from the time such good faith ceased. He has no rights to the objects which do not constitute fruits. Legal interruption of possession in good faith Takes place when an action is filed against himfrom the time he learns of the complaint, from the time he is summoned to the trial.
Article 545, Civil Code. If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession. The charges shall be divided on the same basis by the two possessors. The owner of the thing may, should he so desire, give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall lose the right to be indemnified in any other manner. Old Civil Code Possessor in GF was reimbursed the entire expense of cultivation incurred by him New Civil Code Proportionate division of expenses of production

Article 546, Civil Code. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor. Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.

Necessary Expenses 1. Imposed by the thing itself and have no relation to the desire or purpose of the possessor; hence they are reimbursed, whatever may be the juridical character of the person who advanced them. 2. They are the cost of living for the thing and must be reimbursed to the one who paid them, irrespective of GF or BF. Only a possessor in GF is entitled to retain the thing until he is reimbursed 3. Those imposed for the preservation of the thing. They are not considered improvements; they do not increase the value of the thing, but merely prevent them from becoming useless. Useful Expenses 1. Incurred to give greater utility or productivity to the thing 2. e.g. Wall surrounding an estate, an irrigation system, planting in an uncultivated land, a fishpond, an elevator in the building, electric lighting system 3. They are reimbursed only to the possessor in GF as a compensation or reward for him. Possessor in BF cannot recover such expenses

Charges Those which are incurred, not on the thing itself but because of it. It is borne by the two possessors in proportion to their respective possession.

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Provision is based on the following reasons of equity 1. The fruits received are generally used for the consumption and livelihood of the possessor, and his life and expenses may have been regulated in view of such fruits 2. The owner has been negligent in not discovering or contesting the possession of the possessor; it would be unjust after the possessor has been thus allowed to rely on the efficacy of the title, to require him to return the fruits he has received on the basis of that title. 3. Between the owner, who has abandoned his property and left it unproductive, and the possessor, who has contributed to the social wealth, by the fruits he has produced, the law leans toward the latter

It includes every presentation required of the possessor by reason of possession of the thing, whether it constitutes a real right or not. e.g. Taxes, contributions in favor of the government

When fruits are insufficient There should only be reimbursement of expenses; but each possessor should suffer a proportionate reduction due to the insufficiency of the harvest.

C. Reimbursement for Expenses Possessor in Good Faith/Bad Faith

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CIVIL LAW REVIEWER Article 547, Civil Code. If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the option under paragraph 2 of the preceding article. Article 548, Civil Code. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.

Chapter VI. POSSESSION

Article 549, Civil Code. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of Article 546 and in Article 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession.. Article 550, Civil Code. The costs of litigation over the property shall be borne by every possessor. Article 550, Civil Code. Improvements caused by nature or time shall always inure to the benefit of the person who has succeeded in recovering possession

Expenses for Luxury 1. They do not affect the existence or the substance of the thing itself, but only the comfort, convenience or enjoyment of the possessor. They are not the subject of reimbursement, because the law does not compensate personal whims or caprices. 2. e.g. Opening of a garden, placing fountains and statues in it, adorning the ceilings paintings, and the walls with reliefs
Useful Expenses Those which increase the income derived from the thing Result: Increase in the products, either absolutely, or because of greater facilities for producing them Includes expenses resulting in real benefit or advantage to the thing The resulting utility is essential and absolute, to all who may have the thing. Expenses for Luxury Those which merely embellished the thing

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Includes all the natural accessions referred to by articles 457-465, and all those which do not depend upon the will of the possessor. e.g. widening of the streets, rising of fountains of fresh or mineral water, increase of foliage of trees

Result: Benefit or advantage is only for the convenience of definite possessors

Liability for loss or deterioration of property by possessor in bad faith


Article 552, Civil Code. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons. A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event.

The utility is for the possessor or particular persons alone and is therefore accidental.

Fruits Received

Possessor in GF Entitled to the fruits while possession is in GF and before legal interruption (544) Entitled to part of the expenses of cultivation, and to a part of the net harvest, in proportion to the time of the possession. Indemnity may be, at the owners option, 1. In money, OR 2. By allowing full cultivation and gathering of the fruits (545) Must share with the legitimate possessor, in proportion to the time of the possession (545) Right to reimbursement and retention in the meantime (546)

Possessor in BF Must reimburse the legitimate possessor (549)

Pending Fruits

Must reimburse the legitimate possessor (549)

Charges Necessary Expenses

Same as with GF (545)

Reimbursement only (546)

CIVIL LAW REVIEWER Right of retention until reimbursed; Owners option to reimburse him either for expenses or for increase in value which the thing may have acquired (546) Useful Expenses Limited right of removal should not damage principal and owner does not exercise option of paying the expenses or increase in value (547) Ornamental Expenses Deterioration of Loss Costs of Litigation Limited right of removal (548) No liability unless due to fraud or negligence after becoming in BF (552) Bears cost (550)

Chapter VI. POSSESSION

No right to reimbursement and no right of removal (547)

Limited right of removal (549) Liable in every case (552) Bears cost (550)

Article 559, Civil Code. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor

Just title that which is legally sufficient to transfer the ownership or the real right to which it relates. For the purposes of prescription, there is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right. (Art. 1129) Exception

Possessor has actual title which is defeasible only by true owner. Requisites of Title 1. Possession in GF 2. The owner has voluntarily parted with the possession of the thing 3. The possession is in the concept of an owner When the owner can recover 1. Has lost the thing 2. Has been unlawfully deprived thereof

Article 1131, Civil Code. For the purposes of prescription, just title must be proved; it is never presumed.

3. Possessor may bring all actions necessary to protect his possession except revindicatoria 4. May employ self help under Art. 429 5. Possessor may ask for inscription of such real right of possession in the registry of property 6. Has right to the fruits and reimbursement of expenses (assuming he is possessor in good faith) 7. Upon recovery of possession which has unlawfully deprived may demand fruits and damages 8. Generally, he can do on the things possessed everything that the law

IX. Effects of Possession in the Concept of Owner


1. Possession may be lapsed of time ripen into full ownership, subject to certain exceptions. 2. Presumption of just title and cannot be obliged to show or prove it (Art. 541); exception (Art. 1131)
Article 541, Civil Code. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it.

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D. Possession of Movable Acquired in Good Faith (in concept of owner) is Equivalent to Title (Art. 559)

Basis: Possession is presumed ownership, unless the contrary is proved. This presumption is prima facie and it prevails until contrary is proved.

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authorizes the owner to do until he is ousted by one who had a better right. 9. Possession in good faith and possession in bad faith (Art. 528) Mistake upon doubtful or difficult question of law as a basis of good faith (Art. 526, par 3)

Of non-interruption of possession in favor of present possessor who proves possession at a previous time until the contrary is proved
Article 554, Civil Code. A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary. Article 1120, Civil Code. Possession is interrupted for the purposes of prescription, naturally or civilly. Article 1121, Civil Code. Possession is naturally interrupted when through any cause it should cease for more than one year. The old possession is not revived if a new possession should be exercised by the same adverse claimant. Article 1122, Civil Code. If the natural interruption is for only one year or less, the time elapsed shall be counted in favor of the prescription. Article 1123, Civil Code. Civil interruption is produced by judicial summons to the possessor. Article 1124, Civil Code. Judicial summons shall be deemed not to have been issued and shall not give rise to interruption: 1. If it should be void for lack of legal solemnities; 2. If the plaintiff should desist from the complaint or should allow the proceedings to lapse; 3. If the possessor should be absolved from the complaint. In all these cases, the period of the interruption shall be counted for the prescription

X. Presumption in Possessorfor Prescription

Favor

of the Acquisitive

Of good faith until contrary is proved


Article 527, Civil Code. Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof.

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Presumption is only juris tantum because possession is the outward sign of ownership. Unless such proof of bad faith is presented, the possessor will be held to be in good faith. So long as the possessor is not actually aware of any defect invalidating his title, he is deemed a possessor in good faith.

Of continuity of initial good faith in which possession was commenced of possession in good faith does not lose this character except in case and from the moment possessor became aware or is not unaware of improper or wrongful possession
Article 528, Civil Code. Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully.

Good faith ceases from the date of the summons to appear at the trial Good faith ceases when there is: a. Extraneous evidence b. Suit for recovery of the property by the true owner

Other presumptions with respect to specific properties of property rights 1. Of extension of possession of real property to all movables contained therein so long as in is not shown that they should be excluded; exceptions.
Article 426, Civil Code. Whenever by provision of the law, or an individual declaration, the expression "immovable things or property," or "movable things or property," is used, it shall be deemed to include, respectively, the things enumerated in Chapter 1 and Chapter 2. Whenever the word "muebles," or "furniture," is used alone, it shall not be deemed to include money, credits, commercial securities, stocks and bonds, jewelry, scientific or artistic collections, books, medals, arms, clothing, horses or carriages and their accessories, grains, liquids and merchandise, or other things which do not have as their principal

Of enjoyment of possession in the same character in which possession was required until contrary is proved
Article 529, Civil Code. It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proved.

CIVIL LAW REVIEWER object the furnishing or ornamenting of a building, except where from the context of the law, or the individual declaration, the contrary clearly appears.

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2. Non-interruption of possession of hereditary property


Article 553, Civil Code. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same. Article 1078, Civil Code. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased.

It is the opposite occupation. It consists of the voluntary renunciation of all the rights which the person may have in a thing, with intent to lose such a thing. To be effective, it must be necessary that it be made by a possessor in the concept of an owner. It must be clearly appear that the spes recuperandi is gone and the animus revertendi is finally given up.

B. Assignment, either onerous or gratuitous Complete transmission of ownership rights to another person, gratuitously or onerously C. Possession by another; if possession has lasted longer than one year; real right of possession not lost after 10 years - (Subject to Article 537)
Article 537, Civil Code. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession.

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3. Of just title in favor of possessor in concept of owner


Article 541, Civil Code. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it. Article 1141, Civil Code. Real actions over immovables prescribe after thirty years. This provision is without prejudice to what is established for the acquisition of ownership and other real rights by prescription.

XI. Possesion May Be Lost By


Article 555, Civil Code. A possessor may lose his possession: 1. By the abandonment of the thing; 2. By an assignment made to another either by onerous or gratuitous title; By the destruction or total loss of the thing, or because it goes out of commerce; By the possession of another, subject to the provisions of Article 537, if the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years.

Possession that is lost here refers only to possession as a fact (de facto), not the legal right of possession (de jure). It is the possession that the new possessor acquires. Real right of possession is lost only after 10 years. After one year, the actions for forcible entry and unlawful detainer can no longer be brought. But accion publiciana may still be instituted to recover possession de jure

Article 553, Civil Code. One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the time he takes possession of the thing.

3.

4.

A. Abandonment Includes the giving up possession, and not necessarily of ownership by every possessor.

The improvements, having ceased to exist, the lawful possessor or owner cannot benefit from them; hence he should not pay for them. Necessary expenses are not considered improvements, and even if the object for which they were incurred no longer exists at the time of entry upon possession, the lawful possessor or owner has to pay for them.

Article 557, Civil Code. The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with

CIVIL LAW REVIEWER the provisions of the Mortgage Law and the Land Registration laws.

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Third parties relying on the Registry of Property are privileged to consider the registered possessors or owners as still such in spite of loss

Article 558, Civil Code. Acts relating to possession, executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or keep it, in any character, do not bind or prejudice the owner, unless he gave said holder express authority to do such acts, or ratifies them subsequently.

Article 556, Civil Code. The possession of movables is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know their whereabouts.

Control judicial control or right, or that the thing remains in ones patrimony

Article 560, Civil Code. Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor.

Kinds of Animals: 1. Wildthose which live naturally independent of man 2. Domesticatedthose which, being wild by nature, have become accustomed to recognize the authority of man. When they observe this custom, they are placed in the same category as domestic and when they lose it, they are considered as wild. 3. Domestic or Tamethose which are bornand reared ordinarily under the control and care of man; they are under the ownership of man, and do not become res nullius unless they are abandoned.

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Rules for Loss of Movables:

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Chapter VII. USUFRUCT

Chapter VII. Usufruct


I. CONCEPT II. CHARACTERISTICS III. DISTINGUISHED FROM LEASE AND SERVITUDE IV. CLASSIFICATION V. RIGHTS OF USUFRUCTUARY VI. OBLIGATIONS OF USUFRUCTUARY A. AT THE BEGINNING OF THE USUFRUCT B. DURING THE USUFRUCT C. AT THE TIME OF THE TERMINATION OF THE USUFRUCT VII. SPECIAL CASES VIII. EXTINGUISHMENT

c.

To prevent abuse, which is frequent; To prevent impairment.

Exception: In an abnormal usufruct, alteration is allowed 3. Usufruct is extinguished by the death of the usufructuary a. Natural because a contrary intention may prevail

III. Usufruct Distiguished from Lease and Servitude


Usufruct vs. Lease
Basis By the nature of the right By the creator of the right Usufruct Always a real right Owner Passive owner who allows the usufructuary to enjoy the thing Generally covers all the utility of which the thing is capable May be created by law, by will of the parties, or by prescription Pays for ordinary repairs and taxes on the fruits Lease Quasi-real or personal right Need not be an owner Active owner or lessor who makes the lessee enjoy the thing Generally covers a particular utility May only be created by the will of the parties Generally not borne by a lessee

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I.

Concept

Article 562, Civil Code. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

Objects of Usufruct 1. Independent Rights A servitude which is dependent on the tenement to which it attaches cannot be the object of usufruct 2. Things Non-consumable things Consumable things, but only as to their value if appraised, or on an equal quantity and quality if they were not appraised 3. Unproductive things e.g. sterile or absolutely unproductive land, or things for mere pleasure, such as promenades, statues or paintings, even if they do not produce any utility.

By the cause

By the extent of enjoyment

By the origin

As regards repairs and taxes

Usufruct vs. Servitude

II. Characteristics
Basis

Characteristics 1. It is a real right 2. Of temporary duration 3. To derive all advantages from the thing due to normal exploitation Natural Characteristics 1. Includes only the right to use (jus utendi) and the right to the fruits (jus fruendi) 2. Usufructuary must preserve the form or substance of the thing a. Preservation is a natural requisite, not essential because the title constituting it or the law may provide otherwise b. Reason for preserving form and substance To prevent extraordinary exploitation;

As to the object By the extent or enjoyment

Usufruct May involve real or personal property Covers all the uses of the thing

Servitudes May only involve real property Limited to a particular use

Similarities between Usufruct and Servitude Both are real rights, whether registered or not. 1. Both rights may be registered, provided that the usufruct involves real property. All easements of course concerns real property. 2. Both may ordinarily be alienated or transmitted in accordance with the formalities set by law.

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IV. Classes of Usufruct


A. By Origin
Article 563, Civil Code. Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription.

determines necessity.

the

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of

B. By Person Enjoying Right of Usufruct


Article 564, Civil Code. Usufruct may be constituted on the whole or a part of the fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal or intransmissible.

2. Legal: as provided by law Usufruct of parents over the property of unemancipated children (now limited to the collectively daily needs of the family as per the Family Code)
Article 226, Family Code. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family.

Limitations on successive usufruct 1. If usufruct is by donation, ALL donees must be alive.


Article 756, Civil Code. The ownership of property may also be donated to one person and the usufruct to another or others, provided all the donees are living at the time of the donation.

2. Fiduciary or first heir and the second heir must be alive at the time of the death of the testator.
Article 863, Civil Code. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator.

3. Mixed: created both by law and the acts of persons


Article 565, Civil Code. The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the two following Chapters shall be observed.

3. If by testamentary succession, there must be only 2 successive usufructuaries, and both must be alive or at least already conceived at the time of the testators death.
Article 869, Civil Code. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of Article 863 shall apply

The rights and duties of the usufructuary provided by law may be modified or eliminated by the parties. The title constituting the usufruct may validly authorize the usufructuary to alienate the thing itself held in usufruct. If the usufructuary is authorized to alienate the thing in case of necessity, it is the usufructuary who

C. By Object of Usufruct
Article 564, Civil Code. Usufruct may be constituted on the whole or a part of the fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a

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1. Voluntary: created by the will of private persons a. By act inter vivos such as contracts and donations By alienation of the usufruct By retention of the usufruct Where a usufruct is constituted inter vivos and for valuable consideration, the contract is unenforceable unless in writing b. By act mortis causa such as testament

1. Simple: only one usufructuary enjoys the property 2. Multiple: several usufructuaries enjoy the property a. Simultaneous: at the same time b. Successive: one after the other

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1. Rights a. Must not be strictly personal or intransmissible. b. Usufruct over a real right is by itself a real right. c. Right to receive present or future support cannot be the object of the usufruct. 2. Things a. Normal: involves non-consummable things where the form and substance are preserved b. Abnormal or irregular
Article 574, Civil Code. Whenever the usufruct includes things which cannot be used without being consumed, the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered. In case they were not appraised, he shall have the right to return at the same quantity and quality, or pay their current price at the time the usufruct ceases.

2. As to object a. Singular: only on particular property of the owner b. Universal: pertains to the whole property;
Article 598, Civil Code. If the usufruct be constituted on the whole of a patrimony, and if at the time of its constitution the owner has debts, the provisions of Articles 758 and 759 relating to donations shall be applied, both with respect to the maintenance of the usufruct and to the obligation of the usufructuary to pay such debts. The same rule shall be applied in case the owner is obliged, at the time the usufruct is constituted, to make periodical payments, even if there should be no known capital. Article 595, Civil Code. The owner may construct any works and make any improvements of which the immovable in usufruct is susceptible, or make new plantings thereon if it be rural, provided that such acts do not cause a diminution in the value of the usufruct or prejudice the right of the usufructuary.

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In reality, the usufruct is not upon the consumable things themselves which are delivered to the usufructuary, but upon the sum representing their value or upon a quantity of things of the same kind and quality. The usufructuary, in effect, becomes the owner of the things in usufruct, while the grantor becomes a mere creditor entitled to the return of the value or of the things of the same quantity and quality (as if converted into a simple loan)

A universal usufructuary must pay the debts of the naked owner, if stipulated. If there are no stipulations, the usufructuary only has to pay when the usufruct has been made in fraud of creditors.

Article 758, Civil Code. When the donation imposes upon the donee the obligation to pay the debts of the donor, if the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the donee be responsible for the debts exceeding the value of the property donated, unless a contrary intention clearly appears. Article 759, Civil Code. There being no stipulation regarding the payment of debts, the donee shall be responsible therefor only when the donation has been made in fraud of creditors. The donation is always presumed to be in fraud of creditors, when at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation.

D. By the Extent of the Usufruct


Article 564, Civil Code. Usufruct may be constituted on the whole or a part of the fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal or intransmissible.

E. By the Terms of the Usufruct 1. Pure: no terms or conditions 2. Conditional: either suspensive or resolutory 3. With a term or period a. Ex die: from a certain day b. In diem: up to a certain day c. Ex die in diem: from a certain day up to a certain day

1. As to the fruits a. Total: all consumed by the usufruct b. Partial: only on certain aspects of the usufructs fruits

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Chapter VII. USUFRUCT which it is found. Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one-half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science of the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated. Fruits pending at the beginning of the usufruct Belong to the usufructuary Without need to reimburse the expenses to the owners Fruits pending at the time of termination of the usufruct Belong to the naked owner The owner shall reimburse to the usufructuary ordinary cultivation expenses from the proceeds of the fruits (not to exceed the value of the fruits) rd Rights of innocent 3 parties should not be prejudiced.

V. Rights of Usufructuary
A. As to Thing and Its Fruits 1. Right to enjoy the property to the same extent as the owner, but only with respect to its use and the receipt of its fruits.
Article 566, Civil Code. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger.

Usufructuary cannot extract products which do not constitute fruits because he is bound to preserve the form and substance of the thing. Usufructuary rights may be transferred, assigned or otherwise disposed of by the usufructuary. Not exempt from execution and can be sold at public auction.

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2. As to hidden treasure, usufructuary is considered a stranger without a right to a share, unless he is also the finder of the treasure
Article 566, Civil Code. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger. Article 438, Civil Code. Hidden treasure belongs to the owner of the land, building, or other property on which it is found. Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance, one-half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of interest to science of the arts, the State may acquire them at their just price, which shall be divided in conformity with the rule stated.

Without prejudice to the rd right of 3 persons e.g. if the fruits had been planted by a possessor in good faith, the pending crop expenses and charges shall be prorated between said possessor and the usufructuary

Fruits already matured at the time of the termination of the usufruct, which ordinarily would have already been gathered by the usufructuary, may remain ungathered for no fault imputable to him, but because of malice or an act rd imputable to the naked owner or a 3 person, or even due to force majeure or fortuitous event.

4. Right to civil fruits


Article 569, Civil Code. Civil fruits are deemed to accrue daily, and belong to the usufructuary in proportion to the time the usufruct may last. Article 570, Civil Code. Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character.

3. Right to fruits pending at the beginning of usufruct


Article 567, Civil Code. The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger. Article 438, Civil Code. Hidden treasure belongs to the owner of the land, building, or other property on

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Chapter VII. USUFRUCT

In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article.

5. Right to enjoy any increase through accessions and servitudes, including products of hunting and fishing
Article 571, Civil Code. The usufructuary shall have the right to enjoy any increase which the thing in usufruct may acquire through accession, the servitudes established in its favor, and, in general, all the benefits inherent therein

6. Right to lease the thing


Article 572, Civil Code. The usufructuary may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, even by a gratuitous title; but all the contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct, saving leases of rural lands, which shall be considered as subsisting during the agricultural year.

a. Exceptions: Legal usufructs cannot be leased. Caucion juratoria (lease would show that the usufructuary does not need the property badly) b. Effect of the transfer of right: The transfer or lease of the usufruct does NOT terminate the relation of the usufructuary with the owner Death of the transferee does not terminate the usufruct but it terminates upon the death of the usufructuary who made the transfer. c. Rules as to Lease The property in usufruct may be leased even without the consent of the owner. The lease should be for the same period as the usufruct. EXCEPT: leases of rural lands continues for the remainder of the agricultural year A lease executed by the usufructuary before the termination of the usufruct and subsisting after the termination of the usufruct must be respected, but the rents for the remaining period will belong to the owner. o If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should

expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of the rent that must be paid by the lessee. (Art. 568, Civil Code) It is the usufructuary and not the naked owner who has the right to choose the tenant. o As corollary to the right of the usufructuary to all the rent, to choose the tenant, and to fix the amount of the rent, she necessarily has the right to choose herself as the tenant thereof; and, as long as the obligations she had assumed towards the owner are fulfilled. (Fabie v. Gutierrez David) A lease executed by the owner before the creation of the usufruct is not extinguished by such usufruct.

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d. Limitations on the Right to Lease the Property Usufructuary cannot alienate a thing in usufruct Cannot alienate or dispose of the objects included in the usufruct Cannot renounce a servitude Cannot mortgage or pledge a thing EXCEPT: When the right of usufruct is converted into the right of ownership o When the things are consumable (574); o When the things by their nature are intended for sale, such as the merchandise in a commercial establishment; and o When the things, whatever their nature, are delivered under appraisal as equivalent to their sale Future crops may be sold but such sale would be void if not ratified by the owner. The buyers remedy is to recover from the usufructuary. Only voluntary usufruct can be alienated.

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The usufructuary-lessor is liable for the act of the substitute. A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him. (Art. 590, Civil Code)

If the increase in value exceeds the damages, and the improvements are of such nature that they can be removed without injury to the thing in usufruct, the settlement of the difference must be agreed upon by the parties. If the improvements cannot be removed without injury, the excess in value accrues to the owner.

7. Right to improve the thing, but improvement inures for the benefit of the naked owner
Article 579, Civil Code. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he shall have no right to be indemnified therefor. He may, however, remove such improvements, should it be possible to do so without damage to the property.

Registration of improvements to rd protect usufructuary against 3 persons

B. As to the Legal Right of Usufruct Itself 1. Right to mortgage right of usufruct


Article 572, Civil Code. The usufructuary may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, even by a gratuitous title; but all the contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct, saving leases of rural lands, which shall be considered as subsisting during the agricultural year.

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Usufructuary is not entitled to reimbursement. Whenever the usufructuary can remove the improvements without injury to the property in usufruct, he has the right to do so, and the owner cannot prevent him from doing so even upon payment of their value. This right does not involve an obligation if the usufructuary does not wish to exercise it, he cannot be compelled by the owner to remove the improvements. This right to remove improvements can be enforced only against the owner, not against a purchaser in good faith to whom a clean title has been issued. Usufructuary may set off the improvements against any damage to the property

Does not include parental usufruct because of personal and family considerations.

2. Right to alienate the usufruct except in purely personal usufructs or when title constituting it prohibits the same Parental usufruct is inalienable

VI. Rights of the Naked Owner


1. At the beginning of the usufruct (see obligations of usufructuary at the beginning of the usufruct) 2. During the usufruct a. Retains title to the thing or property b. He may alienate the property: he may not alter the form or substance of the thing; nor do anything prejudicial to the usufructuary
Article 581, Civil Code. The owner of property the usufruct of which is held by another, may alienate it, but he cannot alter its form or substance, or do anything thereon which may be prejudicial to the usufructuary.

Article 580, Civil Code. The usufructuary may set off the improvements he may have made on the property against any damage to the same.

It is necessary that the improvements should have increased the value of the property, and that the damages are imputable to the usufructuary. Increase in value and the amount of damages are set off against each other. If the damages exceed the increase in value, the difference should be paid by the usufructuary as indemnity.

c.

He may construct buildings, make improvements and plantings, provided: Value of the usufruct is not impaired

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Rights of the usufructuary are not prejudiced

Title constituting usufruct excused the making of inventory Title constituting usufruct already makes an inventory

VII. Obligations of the Usufructuary


A. At the Beginning of Usufruct or Before Exercising the Usufruct
Article 583, Civil Code. The usufructuary, before entering upon the enjoyment of the property, is obliged: 1. To make, after notice to the owner or his legitimate representative, an inventory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables; 2. To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter.

[NOTE: These requirements are NOT conditions precedent to the commencement of the right of the usufructuary but merely to the entry upon the possession and enjoyment of the property.] To make an inventory Requisites a. Immovables must be described b. Movables appraised because they are easily lost or deteriorated. Concurrence of the owner in the making of the inventory Expenses for the making of the inventory are borne by the usufructuary Inventory may be in a private document, except when immovables are involved (a rd public instrument is prescribed to affect 3 persons) Failure to make an inventory failure does not affect the rights of the usufructuary to enjoy the property and its fruits. a. A prima facie presumption arises that the property was received by the usfructuary in good condition b. Even if he is already in possession, he may still be required to make an inventory. Exceptions to the requirement of inventory a. No one will be injured thereby b. Title of the usufruct excuses the making of the inventory
Article 585, Civil Code. The usufructuary, whatever may be the title of the usufruct, may be excused from the obligation of making an inventory or of giving security, when no one will be injured thereby.

To give a bond for the faithful performance of duties as usufructuary Any kind of sufficient security is allowed, e.g. cash, personal bond, mortgage No bond is required in the following a. No prejudice would result (Art. 585) b. Usufruct is reserved by a donor (Art. 584) Gratitude on the donees part demands that the donor be excused from filing the bond c. Title constituting usufruct excused usufructuary d. If usufructuary takes possession under a caucion juratoria (Art. 587) The security given may be by a personal bond, a pledge, or a mortgage. It is only by way of exception that a caucion juratoria is allowed, and only under the special circumstances: o Proper court petition o Necessity for delivery of furniture, implements or house included in the usufruct o Approval of the court o Sworn promise A usufructuary under this can neither alienate his right nor lease the property, for that would mean that he does not need the dwelling or the implements and furniture.
Article 585, Civil Code. The share of the coowners, in the benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void. The portions belonging to the co-owners in the coownership shall be presumed equal, unless the contrary is proved. Article 584, Civil Code. The provisions of No. 2 of the preceding article shall not apply to the donor who has reserved the usufruct of the property donated, or to the parents who are usufructuaries of their children's property, except when the parents contract a second marriage. Article 587, Civil Code. If the usufructuary who has not given security claims, by virtue of a promise under oath, the delivery of the furniture necessary for his use, and that he and his family be allowed to

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CIVIL LAW REVIEWER live in a house included in the usufruct, the court may 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 property necessary for an industry or vocation in which he is engaged. If the owner does not wish that certain articles be sold because of their artistic worth or because they have a sentimental value, he may demand their delivery to him upon his giving security for the payment of the legal interest on their appraised value.

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He shall have the ff. options: 1. Receivership of realty, sale of movables, deposit of securities, or investment of money; or 2. Retention of the property as administrator. Net products less administration expenses fixed by agreement or by the Court, shall be delivered to the usufructuary.

Article 588, Civil Code. After the security has been given by the usufructuary, he shall have a right to all the proceeds and benefits from the day on which, in accordance with the title constituting the usufruct, he should have commenced to receive them

B. During the Usufruct To take care of the thing like a good father of a family
Article 589, Civil Code. The usufructuary shall take care of the things given in usufruct as a good father of a family. Article 610, Civil Code. A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration.

Retroactivity: upon giving the security, the usufructuary will be entitled to all the benefits accruing since the time when he should have begun to receive them.

Effect of failure to give bond

Article 586, Civil Code. Should the usufructuary fail to give security in the cases in which he is bound to give it, the owner may demand that the immovables be placed under administration, that the movables be sold, that the public bonds, instruments of credit payable to order or to bearer be converted into registered certificates or deposited in a bank or public institution, and that the capital or sums in cash and the proceeds of the sale of the movable property be invested in safe securities. The interest on the proceeds of the sale of the movables and that on public securities and bonds, and the proceeds of the property placed under administration, shall belong to the usufructuary. Furthermore, the owner may, if he so prefers, until the usufructuary gives security or is excused from so doing, retain in his possession the property in usufruct as administrator, subject to the obligation to deliver to the usufructuary the net proceeds thereof, after deducting the sums which may be agreed upon or judicially allowed him for such administration.

1. When damages are caused to the property by the fault or negligence of the usufructuary, the naked owner need not wait for the termination of the usufruct before bringing the action to recover proper indemnity. 2. The bad use of a thing, which causes considerable injury, entitles the owner to demand the delivery and administration of the thing. 3. The exercise of this remedy does NOT extinguish the usufruct. To undertake ordinary repairs
Article 592, Civil Code. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation. Should the usufructuary fail to make

Right of the naked owner o Potestative right; if he does not wish to exercise it, he may deliver the property to the usufructuary. o Delivery, however, does not mean a renunciation of the right to demand security.

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Effect of filing a bond

Right of the usufructuary o He may alienate his right over the property which he does not possess in the same form as he holds it, without prejudice to the right of the transferee to give the required security.

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1. Ordinary repairs: a. Deteriorations or defects arise from the natural use of the thing; b. Repairs are necessary for the preservation of the thing. 2. The usufructuary is bound to pay only for the repairs made during the existence of the usufruct. If the defects existed already at the time the usufruct began, the obligation to defray the ordinary repairs falls upon the owner. 3. If the defects are caused by the ordinary use of the thing, the usufructuary may exempt himself from making the repairs by returning to the owner the fruits received during the time that the defects took place. EXCEPT: When the ordinary repairs are due to defects caused by the fault of the usufructuary 4. If the usufructuary fails to make the repairs even after demand, the owner may make them at the expense of the usufructuary

2. General Rule: Naked owner must make the extraordinary repairs Usufructuary obliged to pay legal interest on the amount while usufruct lasts 3. If the extraordinary repairs are indispensable, and the naked owner fails to undertake them, the usufructuary may make such repairs Requisites: a. There must be due notification to the naked owner of the urgency if it is not urgent, there is no obligation to give notice. b. The naked owner failed to make them c. The repair is needed for preservation The usufructuary who has made the extraordinary repairs necessary for preservation, is entitled to recover from the owner the increase in value which the tenement acquired by reason of such works. Usufructuary may retain until he is paid.

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To notify owner of need to undertake extraordinary repairs


Article 593, Civil Code. Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent. Article 594, Civil Code. If the owner should make the extraordinary repairs, he shall have a right to demand of the usufructuary the legal interest on the amount expended for the time that the usufruct lasts. Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have a right to demand of the owner, at the termination of the usufruct, the increase in value which the immovable may have acquired by reason of the repairs.

To pay for annual charges and taxes on the fruits


Article 596, Civil Code. The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts. Article 597, Civil Code. The taxes which, during the usufruct, may be imposed directly on the capital, shall be at the expense of the owner. If the latter has paid them, the usufructuary shall pay him the proper interest on the sums which may have been paid in that character; and, if the said sums have been advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct. Article 612, Civil Code. Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without prejudice to the right of retention pertaining to the usufructuary or his heirs for taxes and extraordinary expenses which should be reimbursed. After the delivery has been made, the security or mortgage shall be cancelled.

1. Extraordinary repairs a. Those caused by exceptional circumstances, whether or not they are necessary for the preservation of the thing; b. Those caused by the natural use of the thing, but are not necessary for its preservation.

It is well settled that a real tax, being a burden upon the capital, should be paid by the owner of the land and not by a usufructuary. There is no merit in the contention of distinguishing public lands into alienable and indisposable. All

CIVIL LAW REVIEWER

Chapter VII. USUFRUCT interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right. Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character. In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article.

properties owned by the government, without any distinction, are exempt from taxation. (Board of Assessment Appeals of Zamboanga del Sur v. Samar Mining Company, Inc.) To notify owner of any act detrimental to ownership
Article 601, Civil Code. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for damages, as if they had been caused through his own fault.

B. Usufruct of property owned in common


Article 582, Civil Code. The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the part allotted to the co-owner shall belong to the usufructuary.

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To shoulder usufruct

the

costs

of

litigation

re

Article 602, Civil Code. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary.

To answer for fault or negligence of alienee, lessee or agent of usufructuary


Article 590, Civil Code. A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him. (498)

The usufructuary is made liable for the acts of the substitute. While the substitute answers to the usufructuary, the usufructuary answers to the naked owner.

1. The usufructuary takes the place of the owner as to: a. Management; b. Fruits; and c. Interest 2. Effect of partition: a. The right of the usufructuary is not affected by the division of the property in usufruct among the co-owners. b. After partition, the usufruct is transferred to the part allotted to the co-owner

C. Usufruct constituted on a flock or herd of livestock


Article 591, Civil Code. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity of beasts of prey. If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the misfortune. Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, the usufruct shall continue on the part saved. Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though constituted on fungible things.

C. At the Time of the Termination of the Usufruct To deliver the thing in usufruct to the owner in the condition in which he has received it, after undertaking ordinary repairs Exception: abnormal usufruct return the thing of same kind, quantity and quality; if with appraised value, must return value appraised

VIII.

Special Cases of Usufruct

A. Usufruct over a pension or periodical income


Article 570, Civil Code. Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether in money or in fruits, or in the

CIVIL LAW REVIEWER

Chapter VII. USUFRUCT the enforcement of the action he acquires the thing claimed, the usufruct shall be limited to the fruits, the dominion remaining with the owner.

1. On sterile stock: same rules on consumable property govern (i.e. replacement upon termination) 2. On fruitful stock a. Must replace ordinary losses of the stock with the young if: Some animals die from natural causes Some animals are lost due to rapacity of beasts of prey b. There is no obligation to replace if: There is a total loss of animals because of some unexpected or unnatural loss (like contagious disease or any other uncommon event, provided the usufructuary has no fault); If all perish, the usufructuary should deliver the remains to the owner. There is a partial loss If a part of the stock perishes, the usufruct subsists on the remainder.

1. The action may be instituted in the usufructuarys name. As the owner of the usufruct, he is properly deemed a proper party in interest. 2. If the purpose is the recovery of the property or right, he is still required under 578 to obtain the naked owners authority. 3. If the purpose is to object to or prevent disturbances over the property, no special authority from the naked owner is needed.

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Article 600, Civil Code. The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the security of which the mortgage was constituted. Should the immovable be attached or sold judicially for the payment of the debt, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof.
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F. Usufruct on mortgaged property

D. Usufruct over fruit bearing trees and sprout and woodlands


Article 575, Civil Code. The usufructuary of fruitbearing trees and shrubs may make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants. Article 576, Civil Code. If the owner should make the extraordinary repairs, If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in such considerable number that it would not be possible or it would be too burdensome to replace them, the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land.

1. When the usufruct is universal and some objects are mortgaged, apply Art. 598. 2. If the usufructuary mortgaged the usufruct himself, he is liable to pay his own debt.

G. Usufruct over an entire patrimony


Article 598, Civil Code. If the usufruct be constituted on the whole of a patrimony, and if at the time of its constitution the owner has debts, the provisions of Articles 758 and 759 relating to donations shall be applied, both with respect to the maintenance of the usufruct and to the obligation of the usufructuary to pay such debts The same rule shall be applied in case the owner is obliged, at the time the usufruct is constituted, to make periodical payments, even if there should be no known capital.

The usufructuary can: 1. Use dead trunks and those cut off or uprooted by accident. 2. Make usual cuttings that owner used to do. 3. Cut the trees that are not useful

E. Usufruct on a right of action


Article 578, Civil Code. The usufructuary of an action to recover real property or a real right, or any movable property, has the right to bring the action and to oblige the owner thereof to give him the authority for this purpose and to furnish him whatever proof he may have. If in consequence of

1. Applies when: a. If the usufruct is a universal one b. And the naked owner Has debts or is obliged to make periodical payments (whether or not there be known capital) 2. General rule: the usufructuary is not liable for the owners debts. 3. Exceptions: a. When it is so stipulated; in which case The usufructuary shall be liable for the debt specified.

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If there is no specification, he is liable only for debts incurred by the owner before the usufruct was constituted.

IX. Extinguishment of Usufruct


Article 603, Civil Code. Usufruct is extinguished: 1. By the death of the usufructuary, unless a contrary intention clearly appears; 2. By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct; 3. By merger of the usufruct and ownership in the same person; 4. By renunciation of the usufructuary; 5. By the total loss of the thing in usufruct; 6. By the termination of the right of the person constituting the usufruct; 7. By prescription.

b. When the usufruct is constituted in fraud of creditors 4. In no case shall the usufructuary be responsible for debts exceeding the benefits under the usufruct. (except when the contrary intention appears) H. Usufruct over deteriorable property
Article 573, Civil Code. Whenever the usufruct includes things which, without being consumed, gradually deteriorate through wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them at the termination of the usufruct except in their condition at that time; but he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence.

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A. Death of usufructuary Exceptions 1. In multiple usufructs: it ends at the death of the last survivor
Article 611, Civil Code. A usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until death of the last survivor.

1. It is sufficient if the usufructuary returns the things in the condition in which they may have been found at the time of the expiration of the usufruct despite ordinary defects caused by use and deterioration produced by age and time. EXCEPT when caused by the usufructuarys fraud and negligence. 2. If usufructuary does not return the things upon the expiration of the usufruct, he should pay an indemnity equivalent to the value of the things at the time of such expiration.

a. If simultaneously constituted: all the usufructuaries must be alive (or at least conceived) at the time of constitution. b. If successively constituted: If by virtue of donation all the donees-usufructuaries must be living at the time of the donation; If by will there should only be 2 successive usufructuaries and both must have been alive at the time of testators death. 2. If the period is fixed by reference to the life of another or there is a resolutory condition Death does not affect the usufruct and the right is transmitted to the heirs of the usfructuary until the expiration of the term or the fulfillment of the condition.
Article 606, Civil Code. A usufruct granted for the time that may elapse before a third person attains a certain age, shall subsist for the number of years specified, even if the third person should die before the period expires, unless such usufruct has been expressly granted only in consideration of the existence of such person.

I.

Usufruct over consumable property

Article 574, Civil Code. Whenever the usufruct includes things which cannot be used without being consumed, the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered. In case they were not appraised, he shall have the right to return at the same quantity and quality, or pay their current price at the time the usufruct ceases.

Abnormal Usufruct If the thing is appraised at delivery, the usufructuary must pay their appraised value at the termination of the usufruct. If they were not appraised, he must return the same kind and quality or pay the current price at the expiration of the usufruct.

3. When a contrary intention clearly appears If the usufructuary dies before the happening of a resolutory condition, the usufruct is extinguished.

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Chapter VII. USUFRUCT Article 607, Civil Code. If the usufruct is constituted on immovable property of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and the materials. The same rule shall be applied if the usufruct is constituted on a building only and the same should be destroyed. But in such a case, if the owner should wish to construct another building, he shall have a right to occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials. Article 608, Civil Code. If the usufructuary shares with the owner the insurance of the tenement given in usufruct, the former shall, in case of loss, continue in the enjoyment of the new building, should one be constructed, or shall receive the interest on the insurance indemnity if the owner does not wish to rebuild. Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall receive the full amount of the insurance indemnity in case of loss, saving always the right granted to the usufructuary in the preceding article.

1 view: usufruct is personal and it CANNOT be extended beyond the lifetime of the usufructuary. (Sanchez Roman and SC)

st

B. Expiration of period or fulfillment of resolutory condition imposed on usufruct by person constituting the usufruct 1. In favor of juridical persons: period cannot exceed 50yrs.
Article 605, Civil Code. Usufruct cannot be constituted in favor of a town, corporation, or association for more than fifty years. If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason thereof.

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2. Time that may elapse before a 3 person attains a certain age, even if the latter dies before period expires, unless granted only in consideration of his existence
Article 606, Civil Code. A usufruct granted for the time that may elapse before a third person attains a certain age, shall subsist for the number of years specified, even if the third person should die before the period expires, unless such usufruct has been expressly granted only in consideration of the existence of such person.

rd

See Summary of Arts. 607 and 608 F. Termination of right of person constituting the usufruct Example: usufructs constituted by a vendee a retro terminate upon redemption G. Prescription Adverse possession against the owner or the usfructuary. It is not the non-use which extinguishes the usufruct by prescription, but the use rd by a 3 person. There can be no prescription as long as the usfructuary receives the rents from the lease of the property, or he enjoys the price of the sale of his right.

C. Merger of rights of usufruct and naked ownership in one person Illustration: H was the usufructuary of land owned by X. x dies, leaving in his will, the naked ownership of the land to H. the usufruct is extinguished because now H is both the naked owner and the usufructuary. D. Renunciation of usufruct 1. Waiver: voluntary surrender of the rights of the usufructuary, made by him with intent to surrender them 2. Limitations a. Must be express: tacit renunciation is not sufficient b. Does not need the consent of naked owner c. If made in fraud of creditors, waiver may be rescinded by them through action under Article 1381 (accion pauliana) E. Extinction or loss of property If destroyed property is not insured

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SUMMARY (ARTS. 607 AND 708) EFFECT Art. 607 If destroyed property is not insured If the building forms part of an immovable under Usufruct continues over the land and the remaining usufruct materials Usufruct continues over the land and materials (plus If usufruct is on the building only interests), if owner does not rebuild If owner rebuilds, usufructuary must allow owner to occupy the land and to make use of materials; but the owner must pay interest on the value of both the land and the materials. Art. 608 If destroyed property is insured before termination of the usufruct When insurance premium paid by owner and If owner rebuilds, usufruct subsists on new building If owner does not rebuild interest upon insurance usufructuary (par. 1) proceeds paid to usufructuary Owner entitled to insurance money (no interest paid to When the insurance taken by the naked owner only because usufructuary refuses to contribute to usufructuary) If he does not rebuild, usufruct continues over the premium (par. 2) remaining land and/or owner may pay interest on value of both materials and land (607) If owner rebuilds, usufruct does not continue on new building, but owner must pay interest on value of land and old materials When insurance taken by usufructuary only depends on value of usufructuarys insurable interest Insurance proceeds goes to the usufructuary No obligation to rebuild Usufruct continues on the land Owner has not share in insurance proceeds indemnity, each owns the indemnity given to him, the usufruct being totally extinguished. 3. If usufructuary alone was given the indemnity, he must give it to the naked owner and compel the latter to return either the interest or to replace the property. He may even deduct the interest himself, if the naked owner fails to object. B. Bad use of thing in usufruct
Article 610, Civil Code. A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration.

SITUATION

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X. Conditions Not Affecting Usufruct


A. Expropriation of thing in usufruct
Article 609, Civil Code. Should the thing in usufruct be expropriated for public use, the owner shall be obliged either to replace it with another thing of the same value and of similar conditions, or to pay the usufructuary the legal interest on the amount of the indemnity for the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for the payment of the interest.

3 SITUATIONS 1. If naked owner alone was given the indemnity, he has the option: a. To replace with equivalent thing b. Or to pay to the usufructuary legal interest on the indemnity requires security given by the naked owner for the payment of the interest 2. If both the naked owner and the usufructuary were separately given

Does not extinguish the usufruct but 1. Entitles the owner to demand delivery and administration of the thing.

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2. The bad use must cause considerable injury not to the thing, but to the owner. C. Destruction if a building over which the usufruct is constituted (Arts. 607 and 608)

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Chapter VIII. EASEMENT

Chapter VIII. Easement


I. II. CONCEPT ESSENTIAL FEATURES OF EASEMENTS/REAL III. CLASSIFICATION OF SERVITUDES IV. GENERAL RULES ON SERVITUDE V. MODES OF ACQUIRING EASEMENTS A. BY TITLE B. BY PRESCRIPTION VI. RIGHTS AND OBLIGATIONS OF OWNERS A. OF DOMINANT ESTATE B. OF SERVIENT ESTATE VII. MODES OF EXTINGUISHMENT OF EASEMENTS VIII. LEGAL EASEMENTS

3. It is a right constituted over an immovable by nature (land and buildings), not over movables. (Article 613) o Immovable: used in its common and not in the legal sense, meaning only property immovable BY NATURE can have easements. 4. It limits the servient owners right of ownership for the benefit of the dominant estate. o Right of limited use but no right to possess servient estate. o There exists a limitation on ownership: the dominant owner is allowed to enjoy or use part of the servient estate, or imposes on the owner a restriction as to his enjoyment of his own property. o Being an abnormal limitation of ownership, it cannot be presumed. 5. It creates a relation between tenements o No transfer of ownership, but a relationship is created, depending on the easement. 6. Generally, it may consist in the owner of the dominant estate demanding that the owner of the servient estate refrain from doing something (servitus in non faciendo) or that the latter permit that something be done over the servient property (servitus in patendo), but not in the right to demand that the owner of the servient right to demand that the owner of the servient estate do something (servitus in faciendo) except if such act is an accessory obligation to a preadial servitude (obligation propter rem) o Servient owner merely allows something to be done to his estate. o EXCEPTIONS: Praedial servitudes a. Right to place beams in an adjoining wall to support a structure b. Right to use anothers wall to support a building 7. It is inherent or inseparable from estate to which they actively or passively belong
Art. 617, Civil Code. Easements are inseparable from the estate to which they actively or passively belong.

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I.

Concept

Art. 613, Civil Code. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (530)

A real right which burdens a thing with a prestation of determinate servitudes for the exclusive enjoyment of one who is NOT an owner of a tenement A real right by virtue of which the owner has to ABSTAIN from doing or ALLOW somebody else to do something to his property for the benefit of another

II. Essential Features


1. It is a real right it gives an action in rem or real action against any possessor of the servient estate o Owner of the dominant estate can file a real action for enforcement of right to an easement o Action in rem: an action against the thing itself, instead of against the person. 2. It is a right enjoyed over another property (jus in re aliena) it cannot exist in ones property (nulli res sua servit) o When a dominant and servient estate have the same owner, an easement is extinguished. Separate ownership is a prerequisite to an easement.

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Easements are merely accessory to the tenements, and a quality thereof. They cannot exist without tenements. Easements exist even if they are not expressly stated or annotated as an encumbrance of the titles.

b. Voluntary: Created by the will of the owners of the estate through contract *** There is no such thing as a JUDICIAL EASEMENT. The Courts cannot create easements, they can only declare the existence of one, if it exists by virtue of the law or will of the parties. 3. As to its exercise (Article 615)
Art. 615, Civil Code. Easements may be continuous or discontinuous, apparent or nonapparent. Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man. Discontinuous easements are those which are used at intervals and depend upon the acts of man. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same.

9. It is indivisible
Art. 618, Civil Code. Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him. If it is the dominant estate that is divided between two or more persons, each of them may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way.

Nonapparent easements are those which show no external indication of their existence. (532)

10. It has permanence once it attaches, whether used or not, it continues and may be used at anytime o Perpetual: exists as long as property exists, unless it is extinguished.

This classification is important in determining prescription: only continuous and apparent easements can be created by prescription Continuous: Use is or may be incessant, without the intervention of any man Discontinuous: Used at intervals, and dependent upon the acts of man. 4. As indication of its existence Also important for purposes of prescription Apparent: Made known and continually kept in view by external signs that reveal the use and enjoyment of the same Non-apparent: No external indication of their existence 5. By the object or obligation imposed (Article 616) a. Positive: Imposes upon the owner of the servient estate the obligation of allowing something to be done, or doing it himself b. Negative: Prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. o Prescription starts to run from service of notarial prohibition) o e.g. Negative Easement of Light and View: An opening is made on

III. Classification of Servitudes


1. As to recipient of benefits a. Real or Praedial: exists for the benefit of a particular tenement. b. Personal: exists for the benefit of persons without a dominant tenement e.g. usus habitatio (right to reside in a house) and operae servorum (right to the labor of slaves) in Roman Law 2. As to cause or origin a. Legal: created by law, whether for public use or for the interest of private persons o Once requisites are satisfied, the owner of the dominant estate may ask the Court to declare that an easement is created. o Example: Natural drainage of waters, Abutment of land, Aqueduct, etc.

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8. It is intransmissible it cannot be alienated separately from the tenement affected or benefited o Any alienation of the property covered carries with it the servitudes affecting said property. But this affects only the portion of the tenement with the easement, meaning the portions unaffected can be alienated without the servitude.

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the wall of the dominant estate, and the easement consists of imposing upon the servient estate the obligation to not build anything that would obstruct the light

IV. General Rules Relating to Servitudes


1. Nulli res sua servi: No one can have a servitude over ones own property 2. Servitus in faciendo consistere nequit: A servitude cannot consist in doing o Although some easements seem to impose a positive prestation upon the owner of the servient estate, in reality, the primary obligation is still negative. o Illustration: Under Article 680: the owner of a tree whose branches extend over to a neighboring property is required to cut off the extended branches, but the real essence of the easement is the obligation NOT TO ALLOW the branches of the tree to extend beyond the land 3. Servitus servitutes esse non potes: There can be no servitude over another servitude 4. A servitude must be exercised civiliter in a way least burdensome to the owner of the land 5. A servitude must have a perpetual cause

The defect may be cured by: a. Deed of recognition by owner of servient estate: By affidavit or a formal deed acknowledging the servitude b. By final judgment: Owner of the dominant estate must file a case in Court to have the easement declared by proving its existence through other evidence 2. Existence of an apparent sign considered as title
Article 624, Civil Code. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons.

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Illustration: The presence of 4 windows was considered an apparent sign which created a negative easement of light and view (altius non tollendi) i.e. not to build a structure that will cover the windows. (Amor v. Florentino)

B. By Prescription Requisites 1. Easement must be continuous and apparent. Although the road had been used for more than 20 years, since an easement of right of way is a discontinuous easement, it CANNOT be acquired by prescription because of the requirement of continuous or uninterrupted possession. Since the dominant owner cannot be continually and uninterruptedly crossing the servient estate, but can do so only at intervals, the easement is necessarily of an intermittent or discontinuous nature. (Ronquillo v. Roco)Sasa 2. Easement must have existed for 10 years. 3. NO NEED for good faith or just title.

V. Modes of Acquiring Easements


A. By Title juridical act which gives rise to the servitude (e.g. law, donations, contracts or wills)
Because the road was voluntarily created as a servitude by the owner, he may close it at his pleasure. But while the road is open, he may not capriciously exclude the owner of the tuba saloon from its use. (North Negros Sugar v. Hidalgo)

1. If easement has been acquired but no proof of existence of easement available, and easement is one that cannot be acquired by prescription
Article 623, Civil Code. The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment.

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Chapter VIII. EASEMENT Encarnacion v. Court of Appeals: The Court granted the modification of the easement stating that under the law, the needs of the dominant property ultimately determine the width of the passage. And these needs may vary from time to time. When petitioner started out as a plant nursery operator, he and his family could easily make do with a few pushcarts to tow the plants to the national highway. But the business grew and with it the need for the use of modern means of conveyance or transport. Petitioner should not be denied a passageway wide enough to accomodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business.

VI. Rights and Obligations of Owners of Dominant and Servient Estates


A. Of Dominant Estate 1. Right of owner of dominant estate (Limited Jus Utendi: limited by the nature of the easement itself) a. To use the easement and exercise all rights necessary for it
Article 625, Civil Code. Upon the establishment of an easement, all the rights necessary for its use are considered granted. Article 626, Civil Code. The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.

2. Obligations of the owner of dominant estate a. To use the easement for benefit of immovable and in the manner originally established o Article 626 (supra): Right to use the easement for the benefit of the immovable originally contemplated, and in the manner originally established. o If established for a particular purpose, the easement cannot be used for a different one. However, if established in a general way, without specific purpose, the easement can be used for all the needs of the dominant estate. b. To notify owner of servient before making repairs and to make repairs in a manner least inconvenient to servient estate o Article 627(2) (supra): Notify the owner of the servient estate before making repairs and choosing the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate. c. Not to alter easement or render it more burdensome o Article 627 (supra): Owner of dominant estate may make repairs at his expense, but cannot alter the easement or make it more burdensome. o Court allowed Central to use the right of way to transport the additional sugar. This did not make the easement more burdensome nor did it alter it. What is prohibited is extending the road or repairing it or depositing excavations outside the

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Owner of the dominant estate is granted the right to use the principal easement, and all accessory servitudes Example: Easement of drawing water carries with it the easement of right of way to the place where water is drawn. Limitation: Only for the original immovable and the original purpose

b. To do at his expense, all necessary works for the use and preservation of the easement
Article 627, Civil Code. The owner of the dominant estate may make, at his own expense, on the servient state any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome. For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate.

Necessity of the works determine extent of such works.

c. In a right of way, to ask for change in width of easement sufficient for needs
Article 651, Civil Code. The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time.

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area. But the additional use produced no such effects. (Valderama v. North Negros) d. To contribute to expenses of works necessary for use and preservation of servitude, if there are several dominant estates, unless he renounces his interest
Article 628, Civil Code. Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others. If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary.

REQUISITES if change will cause prejudice to the dominant owner nor impair the use of the servitude: By reason of the place/manner originally assigned, the use of such easement has become VERY INCONVENIENT to the owner The easement should prevent him from making any important works, repairs or improvements thereon Change must be done at his expense He offers another place or manner equally convenient In such a way that no injury is caused by the change to the owner of the dominant estate or to those who may have a right to use the easement

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B. Of Servient Estate 1. Rights of owner of servient estate a. To retain ownership and use of his property o The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement. (Art. 630, Civil Code) o Servient owner must respect the use of the servitude, but retains ownership and use of the same, in a manner not affecting the easement. b. To change the place and manner of the use of the easement
Article 629, Civil Code. The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense, provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement.

c. To use the easement o May use the easement but must also contribute proportionately to the expenses 2. Obligations of the servient estate a. Not to impair the use of the easement o The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude. (Art. 629(1), Civil Code) b. To contribute proportionately to expenses if he uses the easement o If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary (Art. 628(2), Civil Code)

VII. Modes of Easements

Extinguishment

of

Article 631, Civil Code. Easements are extinguished: 1. By merger in the same person of the ownership of the dominant and servient estates; 2. By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place; 3. When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its

CIVIL LAW REVIEWER use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number; By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional; By the renunciation of the owner of the dominant estate; By the redemption agreed upon between the owners of the dominant and servient estates. (546a)

Chapter VIII. EASEMENT

EXCEPT: If the suspension exceeds 10 years, the easement is deemed extinguished by non-user

4.

5. 6.

4. Expiration of the term or fulfillment of resolutory condition o Applicable only to voluntary easements 5. Renunciation of the owner of dominant estate o Must be specific, clear, express (distinguished from non-user) the

Modes of Extinguishment 1. Merger: must be absolute, perfect and definite, not merely temporary o Absolute: Ownership of the property must be absolute, thus not applicable to lease, usufruct, etc. o Perfect: Merger must not be subject to a condition o If the merger is temporary, there is at most a suspension of the easement, but no extinguishment. 2. By non-user for 10 years o Owner of dominant estate does not exercise right over easement. o Inaction, not outright renunciation. o Due to voluntary abstention by the dominant owner, and not to a fortuitous event o Computation of the period Discontinuous easements: counted from the day they ceased to be used Continuous easements: counted from the day an act adverse to the exercise of the easement took place E.g. in an easement of light and view, the erection of works obstructing the servitude would commence the period of prescription o Use by a co-owner of the dominant estate bars prescription with respect to the others o Servitudes not yet exercised cannot be extinguished by non-user An easement must have first been used, before it can be extinguished by inaction. 3. Extinguishment by impossibility of use o Impossibility referred to must render the entire easement unusable for all time. o Impossibility of using the easement due to the condition of the tenements (e.g. flooding) only suspends the servitude until it can be used again.

6. Redemption agreed upon between the owners 7. Other causes not mentioned in Article 631 o Annulment and rescission of the title constituting the voluntary easement o Termination of the right of grantor of the voluntary easement o Abandonment of the servient estate Owner of the servient estate gives up ownership of the easement (e.g. the strip of land where the right of way is constituted) in favor of the dominant estate. The easement is extinguished because ownership is transferred to the dominant owner, who now owns both properties. o Eminent domain The governments power to expropriate property for public use, subject to the payment of just compensation. o Special cause for extinction of legal rights of way; if right of way no longer necessary Art. 655, Civil Code If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement. The same rule shall be applied in case a new road is opened giving access to the isolated estate.

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VIII.

Legal Easements

A. Law governing legal easements 1. For public easements a. Special laws and regulations relating thereto (ex: PD 1067 and PD 705) b. By the provisions of Chapter 2, Title VII, Book II, NCC 2. For private legal easements a. By agreement of the interested parties whenever the law does not prohibit it rd and no injury is suffered by a 3 person b. By the provisions of Chapter 2, title VII, Book II B. Private legal easements provided for by the NCC THOSE ESTABLISHED FOR THE USE OF WATER OR EASEMENTS RELATING TO WATERS 1. Natural drainage of waters
Article 637, Civil Code. Lower estates are obliged to receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stones or earth which they carry with them. The owner of the lower estate cannot construct works which will impede this easement; neither can the owner of the higher estate make works which will increase the burden.

2. Easements on lands along riverbanks


Article 638, Civil Code. The banks of rivers and streams, even in case they are of private ownership, are subject throughout their entire length and within a zone of three meters along their margins, to the easement of public use in the general interest of navigation, floatage, fishing and salvage. Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the easement of towpath for the exclusive service of river navigation and floatage. If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid.

3. Abutment of a dam
Article 639, Civil Code. Whenever for the diversion or taking of water from a river or brook, or for the use of any other continuous or discontinuous stream, it should be necessary to build a dam, and the person who is to construct it is not the owner of the banks, or lands which must support it, he may establish the easement of abutment of a dam, after payment of the proper indemnity. (554)

PROPERTY

In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. Right of way ceases to be necessary: Owner of the of the dominant estate has joined to another abutting on a public road A new road is opened giving access to the isolated estate Requisite: the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished Owner of the servient estate may demand that the easement be extinguished. Owner of the servient estate must return indemnity he received (value of the land)

a. REQUISITE: Waters must flow naturally, without the intervention of man b. DUTIES: o DOMINANT OWNER (Higher Estate) Cannot construct works to increase the burden e.g. canals draining other lands into the lower estate, works which prevent absorption of water like pavements which make the ground more impervious than it is. May demand that the servient owner allow him to make works necessary to remove obstructions impeding natural passage o SERVIENT OWNER (Lower Estate) Cannot make works which would impede the servitude e.g. dams which would block the natural flow, walls, ditches that enclose the tenements. Can construct works that he may deem necessary to prevent damage to himself, so long as he does not cause damage to inferior tenements

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Easement of abutment of a dam may be established after payment of proper indemnity REQUISITES: 1) Construction of dam mecessary for the use of any other continuous or discontinuous stream 2) Person who is to construct the dam is NOT the owner of the banks or lands which must support the dam

4. Aqueduct
Article 642, Civil Code. Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend. Article 643, Civil Code. One desiring to make use of the right granted in the preceding article is obliged: 1. To prove that he can dispose of the water and that it is sufficient for the use for which it is intended; 2. To show that the proposed right of way is the most convenient and the least onerous to third persons; 3. To indemnify the owner of the servient estate in the manner determined by the laws and regulations. Article 644, Civil Code. The easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing. Article 645, Civil Code. The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it, or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary repairs and cleanings impossible. Article 645, Civil Code. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours.

REQUISITES: 1) Dominant owner must prove that: a) He can dispose of the water b) Water is sufficient for the use for which it is intended c) The proposed right of way is the most convenient and the least onerous to third persons 2) Dominant owner must also indemnify the servient estate in the manner determined by laws and regulations 3) Dominant owner cannot impose the easement of aqueduct on buildings, courtyards, annexes, outhouses, orchards or gardens already existing Existing structures cannot be injured to establish the easement. RIGHT OF SERVIENT OWNER: May fence or build over the aqueduct in such a manner as not to cause any damage, or render impossible any necessary repairs and cleanings

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5. Stop lock and sluice gate


Article 647, Civil Code. One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators.

6. Stop lock and sluice gate 1. REQUISITES: 1) Can be imposed only for reasons of public use in favor of a town or village 2) After payment of proper indemnity

THE EASEMENT OF RIGHT OF WAY


Article 649, Civil Code. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.

Any person wishing to use upon his own estate any water can make it flow through intervening estates with obligation to indemnify owners of such estates Considered as a continuous and apparent easement, even though the flow of water may not be continuous

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In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance. This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. (564a)

7. RULES FOR ESTABLISHING THE RIGHT OF WAY 1) Must be established at the point LEAST prejudicial to the servient estate
Art. 650, Civil Code. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.

2. Who may demand: (1) The owner of the dominant estate (2) Any person with the real right to cultivate or use the immovable e.g. a usufructuary BUT a lessee cannot demand such easement, because the lessor is the one bound to maintain him in the enjoyment of the property 3. REQUISITES: (1) Dominant estate is surrounded by other immovables owned by other persons (2) There must absolutely be no access to a public highway (3) Even if there is access, it is difficult or dangerous to use, or grossly insufficient 4. Mere inconvenience in the use of an outlet does not render the easement a necessity. 5. An adequate outlet is one that is sufficient for the purpose and needs of the dominant owner, and can be established at a reasonable expense. 6. Does not necessarily have to be by land an outlet through a navigable river if suitable to the needs of the tenement is sufficient. (4) Isolation of the immovable is NOT due to the dominant owners own acts e.g. if he constructs building to others obstructing the old way (5) Payment of indemnity o If right of way is permanent and continuous for the needs of the dominant estate = value of the land + amount of damage caused to the servient estate o If right of way is limited to necessary passage for cultivation of the estate and for gathering crops, without permanent way = damage caused by encumbrance.

a. Insofar as consistent with the first rule, where the distance from the dominant estate to a public highway is shortest E.g. as between a longer way without injury to the servient estates constructions, etc. and a shorter way that would cause injury b. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through. (Quimen v. CA) c. The fact that LGV had other means of egress to the public highway cannot extinguish the said easement, being voluntary and not compulsory. The free ingress and egress along Mangyan Road created by the voluntary agreement between the parties is thus legally demandable with the corresponding duty on the servient estate not to obstruct the same. (La Vista Association v. CA)

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2) Width of the easement shall be that which is sufficient for the needs of the dominant estate

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a. Easement may be changed from time to time depending upon the needs of the dominant tenement b. The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. (Art. 651, CC) 3) Necessary repairs for a permanent right of way shall be made by the DOMINANT OWNER. 4) A proportionate share of taxes shall be reimbursed by the dominant owner to the proprietor of the servient estate If the right of way is permanent, the necessary repairs shall be made by the owner of the dominant estate. A proportionate share of the taxes shall be reimbursed by said owner to the proprietor of the servient estate (Art. 654, CC) 5) In cases where the dominant estate needing the right of way is acquired by sale, exchange or partition and the Estate is surrounded by other estates owned by the vendor, exchanger of co-owner a. Vendor, exchanger or co-owner shall grant the right of way WITHOUT INDEMNITY Granting the servitude without indemnity is a tacit condition of the sale, exchange or partition: each party receives something b. Donor (simple donation) must still be indemnified for right of way Grantor receives nothing from the grantee, therefore no implied condition as to a right of way is constituted c. If the land of the grantor is the one which becomes isolated, he may demand right of way after paying an indemnity Whenever a piece of land acquired by sale, exchange or partition, is surrounded by other estates of the vendor, exchanger, or coowner, he shall be obliged

to grant a right of way without indemnity. In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way. (Art. 652, CC) 8. EXTINGUISHMENT Extinguished in the following circumstances because easement ceases to be necessary: 1) Owner has joined the dominant estate to another abutting the public road 2) A new road is opened giving access to the isolated estate 3) Extinguishment is NOT automatic. The owner of the servient estate must ask for such extinguishment 4) Indemnity paid to the servient owner must be returned: a. If easement is permanent: value of the land must be returned b. If easement is temporary: nothing to be returned 9. SPECIAL RIGHTS OF WAY Right of way to carry materials for the construction, repair, improvement, alteration or beautification of a building through the estate of another Right of way to raise on anothers land scaffolding or other objects necessary for the work If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. (Art. 656) Right of way for the passage of livestock known as animal path, animal trail, watering places, resting places, animal folds (Art. 657) Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for

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watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place. Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters

(ii) In dividing walls of gardens or yards, situated in cities, towns or rural communities (iii) In fences, walls and live hedges dividing rural lands (iv) Ditches or drains between two estates b. EXTERIOR SIGNS CONTRARY TO THE EASEMENT OF PARTY WALL (merely illustrative and not exclusive) (i) A window or opening in the dividing wall of buildings (ii) A lower part of the wall slants or projects outward on one side of the wall, while the other side is straight and plumb on its facement (iii) Entire wall is built WITHIN the boundaries of one of the estates (iv) Dividing wall bears the burden of beams, floors and roof frame of only one of the buildings (v) Dividing wall between courtyards, garden or tenements is constructed in such a way that the it sheds water upon only one of the estates (vi) Dividing wall has stepping stones which project from the surface of one side only, but not on the other (vii) Lands enclosed by fences or live hedges adjoin others which are not enclosed

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THE EASEMENT OF PARTY WALL


Article 659, Civil Code. The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary: 1. In dividing walls of adjoining buildings up to the point of common elevation; 2. In dividing walls of gardens or yards situated in cities, towns, or in rural communities; 3. In fences, walls and live hedges dividing rural lands. PARTY WALL Built by common agreement by getting land from the adjoining tenements in equal parts Owner may use the wall for his own exclusive benefit WALL OWNED IN COMMON Owned by adjoining owners from its construction or by subsequent act Co-owner cannot use the wall for his own exclusive benefit, because he would be impairing the rights of his co-owners Each owner can insert beams in the wall to the extent of entire thickness

2. OTHERS NOT ENUMERATED in ARTICLE 659 a. Two adjoining tenements surrounded by live hedges of different kinds = the hedge must belong to the owner of the tenement using the same kind of plants b. For ditches or drains between two estates, whenever the earth or dirt removed to open or clean the ditch is only on one side thereof 3. CONTRADICTORY SIGNS a. Contradictory external signs are left to the determination of the Court, but the quality instead of the number of signs must prevail. Also, a presumption arising from the object or purpose of the wall is of more force than that arising from a doubtful external sign. b. Title, as an express proof of ownership prevails over an external sign, which merely gives rise to a presumption

Each owner may insert beams but only to the extent of of its thickness

1. DETERMINING THE EXISTENCE OF A PARTY WALL a. PRESUMED in the following situations unless there is a TITLE or EXTERIOR SIGN or PROOF to the contrary (i) In dividing walls of adjoining buildings, up to the point of common elevation

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4. RULES a. Cost of repairs and construction, maintenance of fences, hedges, ditches and drains shall be borne by ALL the owners of the lands or tenements EXCEPT: if the defects were occasioned only by one owner b. An owner may exempt himself from contributing to the expenses by renouncing his part-ownership, UNLESS the party wall supports a building he owns Renunciation refers not only to the wall, but also to the land on which it is constructed. c. An owner of a building supported by a party wall who desires to demolish his building, may also renounce his part ownership of the wall. BUT he must still bear the cost of all the repairs and work necessary to prevent any damage to the party wall. d. Every owner may increase the height of the wall, at his own expense and paying for damages caused by the work. He must also pay for: Expenses of maintaining the wall in the part newly raised, or deepened foundation Indemnity for increased expenses necessary for the preservation of the wall by reason of the greater height or depth which has been given it Reconstruction expenses in case the party wall cannot bear the increased height. If increased thickness is needed, the owner shall give the space required from his own land Other owners may acquire part ownership of the increased height, depth or thickness of the wall, by paying proportionately the value of the work at the time of the acquisition, and of the land for its increased thickness e. Part-owners may use the party wall IN PROPORTION to the right he may have in the co-ownership, without interfering with the common and respective uses of the others.

E.g. A interest in the wall = payment for expenses = use as in one can insert beams in the wall up to thickness

THE EASEMENT OF LIGHT AND VIEW 1. NATURE OF THE EASEMENT a. POSITIVE: Opening a window through a party wall When a part owner of a party wall opens a window therein, such act implies the exercise of the right of ownership by the use of the entire thickness of the wall = invasion of the right of the other part owners / violation of the right to proportional use of the party wall. b. NEGATIVE: Formal prohibition upon the owner of the adjoining land or tenement When a person opens a window on his own building, he does nothing more than exercise an act of ownership on his property. Does not establish an easement Coexistent is the right of the owner of the adjacent property to build on his own land, even if such structures cover the window If the adjacent owner does not build structures to obstruct the window, such is considered mere tolerance and NOT a waiver of the right to build. An easement is created only when the owner opens up a window prohibits or restrains the adjacent owner from doing anything, which may tend to cut off or interrupt the light + prescriptive period 2. EASEMENT vs. DIRECT VIEW o Acquired by the person who opens the window o The following structures cannot be built without following the prescribed distances Window, apertures, balconies and other projections with a direct view upon or towards an adjoining land must have a distance of 2 METERS between the wall and the contiguous property.

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For structures with a side or oblique view (at an angle from the boundary line), there should be a distance of 60 centimeters. Measured from: The outer line of the wall if the openings do not project The outer line of the openings if they project The dividing line between the two properties in cases of oblique view If distances are not complied with: Windows are considered unlawful openings Owner may be ordered by the Court to close them Even if the adjoining owner does not object to the construction of such structures at first, he cannot be held to be in estoppel, except if 10-year period of acquisitive prescription has passed. Does not give rise to prescription Mere opening of the window in violation of the distances does not give rise to the easement of light and view by prescription

With iron grating imbedded in the wall With a wire screen But owner of the adjoining estate can close the opening if: He acquires part ownership of the party wall He constructs a building or raises a wall on his land, unless an easement of light has been acquired If requirements are not complied with, the owner of the adjoining estate may compel the closure of the opening. The action to compel the closing of the opening may prescribe, if the opening is permitted without protest. BUT prescription of the action to compel the closure of the opening DOES NOT MEAN that the servitude of light and view has been acquired. Period of acquisitive prescription will only start to run from the time the owner asserting the servitude has forbidden the owner of the adjoining tenement from doing something he could lawfully do. THUS, although the action to compel the closure might have prescribed, the owner of the adjoining estate may still build on his own land a structure which might obstruct the view. OF DRAINAGE OF

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In buildings separated by a public way or alley, not less than 3 meters wide, the distances required (2 m, 60 cm) do not apply. If an easement is acquired to have direct views, balconies or belvederes, the owner of the servient estate must not build at less than 3 meters from the boundary line of the two tenements. The distances may be stipulated by the parties, but should not be less than what is prescribed by the law (2 meters and 60 cm)

THE EASEMENT BUILDINGS

Article 674, Civil Code. The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent land or tenement. Article 675, Civil Code. The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. Article 676, Civil Code. Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet through the house itself to the rain water collected thereon, the establishment

3. EXCEPTION TO EASEMENT vs. DIRECT VIEW o Owners of a wall (not a party wall) adjoining a tenement of another can make openings to admit light without complying with the distance requirements SO LONG AS: Openings are made at the height of the ceiling joists (horizontal beams) or immediately under the ceiling Size: 30 cm square

CIVIL LAW REVIEWER of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest, and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate, after payment of the property indemnity.

Chapter VIII. EASEMENT renounced by stipulation on the part of the adjoining proprietors. In the absence of regulations, such precautions shall be taken as may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. Article 679, Civil Code. No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof, at a distance of at least two meters from the dividing line of the estates if tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are planted. Every landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted. The provisions of this article also apply to trees which have grown spontaneously. Article 680, Civil Code. If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to demand that they be cut off insofar as they may spread over his property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property. Art. 681, Civil Code. Fruits naturally falling upon adjacent land belong to the owner of said land.

1. Regulating the disposal of rain water a. Owner of a building is obliged to construct a roof or covering so as to ensure that the rain water shall fall on his own land, or on a street or public place, and NOT on the land of his neighbor. b. Owner is also obliged to collect the war falling on his own land so as not to cause damage to adjacent tenements 2. Rain water is res nullius, and has no owner. This article merely imposes a limitation on the use of ones property, so that rain water falling thereon may not cause damage. 3. Obligation to collect water (#2) is an exception to the rule requiring lower tenements to receive water flowing from higher tenements. EASEMENT GIVING AN OUTLET TO THE WATER THROUGH CONTIGUOUS ESTATES o Requisites: a. Yard or court of a house is surrounded by other houses b. Water is collected thereon c. Not possible to give an outlet through the house itself d. Establishment of conduit for drainage must be at a point where egress is easiest and where it will cause the least damage to the servient estate e. After payment of proper indemnity INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN CONSTRUCTIONS AND PLANTINGS
Article 677, Civil Code. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto Article 675, Civil Code. No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or

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1. SUMMARY CONSTRUCTIONS may be built only after complying with prescribed regulations (special laws, ordinances, regulations): a. Constructions or plantings near fortified places or fortresses b. Aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, factory (with dangerous and noxious substances) Distances must be observed and protective works necessary for the conditions must be made c. Trees planted near a tenement or piece of land In the absence of ordinances or customs of the place: (1) TALL TREES: At a distance of at least 2 meters from the dividing line of the estates (2) SHRUBS/SMALL TREES: At least 50 cm from the dividing line

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If trees are planted at a shorter distance, landowner may demand that it be uprooted

o 2. Plantings Encroaching on Adjoining Estates a. Branches of any tree extending over a neighboring estate, garden, etc. Owner of the adjoining estate has the right to demand that they be cut off insofar as they may spread over his property. b. Roots of a neighboring tree which should penetrate into the land of another o Owner may cut the roots off himself within his property, even without notice to the owner of the trees o Roots, by accession are converted into the property of the owner of the land into which they penetrate. o Also, cutting off the roots will not give the cutter any benefit, in contrast to cutting off the branches of a tree. o PRESCRIPTION OF ACTION TO CUT: Period only starts to run after the owner of the estate has demanded that the owner of the trees cut off the branches or roots, and the latter refuses. The fact that the owner does not cut off the trees only constituted mere tolerance. c. Fruits naturally falling upon adjacent land belong to the owner of the land o Not by right of occupation but by principle of accession. o Owner of the tree retains ownership: If he picks the fruits from the branches which invade the neighboring tenement If fruits fall on immovables for public use (not considered as fruits of these

Material impairment depends on the nature and purpose of the tenement e.g. dwelling house vs. factory Degree of annoyance to be tolerated depends on what is usual for a specific locality.

Article 683, Civil Code. Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood.

EASEMENT OF LATERAL AND SUBJACENT SUPPORT


Article 684, Civil Code. No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support.

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1. An owner cannot make such excavations as to deprive any adjacent land or building of sufficient lateral or subjacent support 2. LATERAL SUPPORT a. Limitation on the right to excavate on his own land: one cannot excavate so close to an adjoining estate as to deprive it of natural support and cause it to crumble. b. Not necessary that the excavation is made on the lot immediately adjoining. It is sufficient if the excavation results in a slide in the plaintiffs property c. An owner who makes excavations can either: Observe a sufficient distance to permit the necessary lateral support of adjoining land Support the latter artificially through walls, etc. 3. SUBJACENT SUPPORT a. Exists when there is severance of ownership (surface owner vs. substrata owner) as in mines and tunnels. b. The owners of the rights below the surface are burdened with the easement to refrain from removing such sufficient support which will protect the surface from subsidence or sinking, and keep it securely at its original level. 4. REMEDIES FOR VIOLATION a. Action for Damages against the one who made the excavation, whether owner or contractor, etc.

THE EASEMENT AGAINST NUISANCES


Article 682, Civil Code. Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes.

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Chapter VIII. EASEMENT

b. Injunction Restraining the owner from excavating so as to deprive the land of natural support Will prohibit merely any excavation which shall cause the plaintiffs land to fall away due to withdrawal of support 5. OTHER RULES: a. Stipulations or testamentary provisions allowing excavations that cause danger to adjacent land or building is VOID. b. Also applicable to future constructions c. Any proprietor intending to make any excavation shall notify all owners of adjacent lands. Notice must sufficiently inform the adjoining owner of the nature and extent of the proposed excavation, so as to enable the owner to take the necessary precautions to protect his property. No formal notice is necessary if the adjoining owner already has actual knowledge of such excavation. But giving notice does not absolve the excavator from the duty to exercise reasonable care to avoid injury to neighbors.

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Chapter IX. NUISANCE

Chapter IX. Nuisance


I. II. III. IV. DEFINITION CLASSES LIABILITY IN CASE OF NUISANCE REGULATION OF NUISANCE

I.

Definition

To constitute a nuisance there must be an arbitrary or abusive use of property or disregard of commonly accepted standards set by society. Nuisance v. Trespass
Nuisance Use of ones own property in such a manner as to cause injury to the property or right or interest of another, and generally results from the commission of an act beyond the limits of the property affected. Injury is consequential Trespass

Direct infringement of anothers right of property.

Injury is immediate

Nuisance v. Negligence
Nuisance Whether it was unreasonable for the defendant to act as he did in view of the threatened danger or harm to one in plaintiffs position. Liability for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury. Principles ordinarily apply where the cause of action is for continuing harm caused by continuing or recurrent acts which cause discomfort or annoyance to plaintiff in the use of his property. Negligence Whether the defendants use of his property was unreasonable as to plaintiff, without regard to foreseeability of injury.

II. Classes
Liability is based on a want of proper care

Art. 695, Civil Code. Nuisance is either public or


private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition.

Principles ordinarily apply where the cause of action is for harm resulting from one act which created an unreasonable risk of injury.

1. According to Nature (old classification) a. Nuisance per se or at law

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Article 694, Civil Code. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: 1. Injures or endangers the health or safety of others; or 2. Annoys or offends the senses; or 3. Shocks, defies or disregards decency or morality; or 4. Obstructs or interferes with the free passage of any public highway or street, or any body of water; or 5. Hinders or impairs the use of property.

Examples as enumerated under CC 1) Injury to health Any business, although itself lawful, which necessarily impregnates large volumes of the atmosphere with disagreeable, unwholesome or offensive matter, may become a nuisance to those occupying adjacent property, in case it is so near, and the atmosphere is contaminated to such an extent as substantially to impair the comfort and enjoyment of adjacent occupants. 2) Dangerous to safety manufacture, storing or keeping of explosives in large quantities in the vicinity of dwelling houses or excavation adjoining a public highway 3) Annoyance to senses slaughterhouses and cowhide storage vats from which emanated vile and offensive odors; noise of animals kept in residential neighborhood o To be judged by the effect they are calculated to produce upon ordinary people under normal circumstances, not by their effect upon the oversensitive, the fastidious or the sick, nor, on the other hand, by their effect upon those who are abnormally indifferent to such things, or who by long experience have learned to endure them without inconvenience. o Inconvenience must be materially interfering with the ordinary comfort, physically, of human existence. 4) Shocking to decency bawdy or disorderly house; building used for either lewdness or of assignation or prostitution 5) Hinders or impairs the use of property illegal construction on anothers land

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Chapter IX. NUISANCE

An act, occupation or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings.

3.

b. Nuisance per accidens or in fact o One that becomes a nuisance by reason of circumstances and surroundings. o It is not a nuisance by its nature but it may become so by reason of the locality, surrounding, or the manner in which it is conducted, managed, etc.
Per se The wrong is established by proof of the mere act. It becomes a nuisance as a matter of law. Per accidens Proof of the act and its consequences.

Doctrine of Attractive Nuisance o One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. o Basis of liability The attractiveness is an invitation to children. Safeguards to prevent danger must therefore be set up.
A swimming pool or water tank is not an attractive nuisance, for while it is attractive, it cannot be a nuisance, being merely an imitation of the work of nature. (Hidalgo Enterprises v. Balandan)

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2. According to Scope of Injurious Effects o Test: not the number of persons annoyed but the possibility of annoyance to the public by the invasion of its rights the fact that it is in a public place and annoying to all who come within its sphere. a. Public o The doing of or the failure to do something that injuriously affects the safety, health or morals of the public. o It causes hurt, inconvenience or injury to the public, generally, or to such part of the public as necessarily comes in contact with it. b. Private o One which violates only private rights and produces damages to but one or a few persons.
Public Affects the public at large Need not affect the whole community or hurt and injure all the public. It is sufficient if it affects the surrounding community generally or if the injury is occasioned to such part of the public as come in contact with it. Private Affects the individual or a limited number of individuals only

III. Liability in Case of Nuisance


o Who are liable
Art. 696, Civil Code. Every successive owner or possessor of property who fails or refuses to abate a nuisance in that property started by a former owner or possessor is liable therefor in the same manner as the one who created it.

c.

Mixed

Liability of creator of nuisance: He who creates a nuisance is liable for the resulting damages and his liability continues as long as the nuisance continues. There must be a breach of some duty on the part of the person sought to be held liable for damages resulting from a nuisance before an action will lie against him. No one is to be held liable for a nuisance which he cannot himself physically abate without legal action against another for that purpose. Where several persons, acting independently, cause damage by acts which constitute a nuisance, each is liable for the damage which he has caused or for his proportionate share of the entire damage. Liability of transferees: The grantee of land upon which there exists a nuisance created by his predecessors in title is NOT responsible therefore merely because he becomes the owner of the premises, or merely because he permits it to remain. He shall be liable if he knowingly continues the nuisance. Generally, he is

CIVIL LAW REVIEWER

Chapter IX. NUISANCE

not liable for continuing it in its original form, unless he has been notified of its existence and requested to remove it, or has actual knowledge that it is a nuisance and injurious to the rights of others. Nature of liability: All persons who participate in the creation or maintenance of a nuisance are jointly and severally liable for the injury done. If 2 or more persons who create or maintain the nuisance act entirely independent of one another, and without any community of interest, concert of action, or common design, each is liable only so far as his acts contribute to the injury. For joint liability, there must be some joint or concurrent act or community of action or duty, or the several wrongful acts done at several times must have concurred in their effects as one single act to produce the injury complained of. Right to recover damages
Art. 697, Civil Code. The abatement of a nuisance does not preclude the right of any person injured to recover damages for its past existence.

a. Criminal prosecution: Only for a public nuisance, not for a private one. Public nuisances are offenses against the State, and since early times it has been held that one who is responsible for this may be proceeded against criminally by indictment. Question of intent is immaterial. Persons liable person is liable for the consequence which his act produced b. Civil action: 1) Judgment with abatement defendant convicted of maintain a nuisance may also be ordered to abate the nuisance 2) Injunction where the injury occasioned by an indictable nuisance is pressing or imminent, so that the public safety is menaced or public rights are obstructed or interfered with, and the special circumstances are such that the ordinary process of the court is not sufficiently prompt or effective to prevent the injury or obstruction, the remedy can be injunction provided the right is clear and the wrong has not been acquiesced in by the plaintiff. c. Extrajudicial abatement: This right is based upon necessity which must be present to justify its exercise. It must be reasonably and efficiently exercised, means employed must not be unduly oppressive on individuals, and no more injury must be done to the property or rights of individuals than is necessary to accomplish the abatement. No right to compensation if property taken or destroyed is a nuisance.

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Abatement and damages are cumulative remedies.

No Prescription
Art. 698, Civil Code. Lapse of time cannot legalize any nuisance, whether public or private.

The action to abate a public or private nuisance is NOT extinguished by prescription. (Art. 1143[2])

IV. Regulation of Nuisances


A. PUBLIC NUISANCE

2. Who can file an action for abatement


Article 700, Civil Code. The district health officer shall take care that one or all of the remedies against a public nuisance are availed of. Article 701, Civil Code. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor. Article 702, Civil Code. The district health officer shall determine whether or not abatement, without judicial proceedings, is the best remedy against a

1. Remedies to abate a nuisance


Article 699, Civil Code. The remedies against a public nuisance are: 1. A prosecution under the Penal Code or any local ordinance: or 2. A civil action; or 2. (3) Abatement, without judicial proceedings.

CIVIL LAW REVIEWER public nuisance. Article 703, Civil Code. A private person may file an action on account of a public nuisance, if it is specially injurious to himself.

Chapter IX. NUISANCE

a. General rule: Individual has no right of action against a public nuisance. The abatement proceedings must be instituted in the name of the State or its representatives. b. Except: An individual who has suffered some special damage different from that sustained by the general public, may maintain a suit in equity for an injunction to abate it, or an action for damages which he has sustained. Action becomes a tort if an individual has suffered particular harm, in which case the nuisance is treated as a private nuisance with respect to such person. 3. Requisites of the right of a private individual to abate a public nuisance
Article 704, Civil Code. Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury. But it is necessary: 1. That demand be first made upon the owner or possessor of the property to abate the nuisance; 2. That such demand has been rejected; 3. That the abatement be approved by the district health officer and executed with the assistance of the local police; and 4. That the value of the destruction does not exceed three thousand pesos.

only so much of the objectionable thing as actually causes the nuisance. e. Abatement must be approved by the district health officer. f. Property must not be destroyed unless it is absolutely necessary to do so. g. Right must always be exercised with the assistance of local police so as not to disturb the public peace. B. PRIVATE NUISANCE

Article 706, Civil Code. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury. However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private person be followed. Article 707, Civil Code. A private person or a public official extrajudicially abating a nuisance shall be liable for damages: 1. If he causes unnecessary injury; or 2. If an alleged nuisance is later declared by the courts to be not a real nuisance.

a. The right must be exercised only in cases of urgent or extreme necessity. The thing alleged to be a nuisance must be existing at the time that it was alleged to be a nuisance. b. Summary abatement must be resorted to within a reasonable time after knowledge of the nuisance is acquired or should have been acquired by the person entitled to abate. c. Person who has the right to abate must give a reasonable notice of his intention to do so, and allow thereafter a reasonable time to enable the other to abate the nuisance himself. d. Means employed must reasonable and for any unnecessary damage or force, the actor will be liable. Right to abate is not greater than the necessity of the case and is limited to the removal of

a. Action for damages: Recovery is limited to the damage occasioned up to the time of the commencement of the action. If nuisance continues to the time of trial, then damages shall be computed from that time. If nuisance is permanent, a single action is enough to cover both past and prospective damages. If temporary or recurrent, each repetition of it gives rise to a new cause of action and successive actions will lie. b. Defenses to action: 1) Public necessity private interest must yield to the public good; creation of nuisance amounts to taking of property therefore just compensation must be made. 2) Estoppel one who voluntarily places himself in a situation whereby he suffers an injury will not be heard to say that his damage is due to a nuisance maintained by another.

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Article 705, Civil Code. The remedies against a private nuisance are: 1. A civil action; or 2. Abatement, without judicial proceedings.

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Chapter IX. NUISANCE

3) Non-existence of the nuisance 4) Impossibility of abatement c. Liability of person abating: Whoever abates an alleged nuisance and thus destroys or injures private property, or interferes with private rights, whether a public officer or private person, unless he acts under the order of a court having jurisdiction, does so at his peril.

d. Remedies of property owner: A person whose property is seized or destroyed as a nuisance may resort to the courts to determine w/n it was in fact a nuisance. 1) Action for replevin 2) Enjoin the sale or destruction of the property 3) Action for the proceeds of its sale and damages if it has been sold 4) Enjoin private parties from proceeding to abate a supposed nuisance

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Chapter X. MODES of ACQUIRING OWNERSHIP

Chapter X. Ownership
I. II.

Modes

of

Acquiring

II. Mode
A. ORIGINAL

MODE V. TITLE MODES A. ORIGINAL MODES 1. OCCUPATION 2. INTELLECTUAL CREATION B. DERIVATIVE MODES 1. LAW 2. DONATION 3. SUCCESSION 4. ACQUISITIVE PRESCRIPTION 5. TRADITION

Original modes of acquisition are those which produce the acquisition of ownership independent of any preexisting right of another person, hence, free from burdens or encumbrances. 1. OCCUPATION
Article 713, nature which that are the treasure and occupation. Civil Code. Things appropriable by are without an owner, such as animals object of hunting and fishing, hidden abandoned movables, are acquired by

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I.

Mode v. Title

Article 712, Civil Code. Ownership is acquired by occupation and by intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription.

Mode is a specific cause which produces dominion and other real rights as a result of the co-existence of special status of things, capacity and intention of persons and fulfillment of the requisites of law. Title is every juridical right which gives a means to the acquisition of real rights but in itself is insufficient to produce them. Ownership is not transferred by contract merely but by tradition or delivery. Contracts only constitute titles or rights to transfer or acquisition of ownership, while delivery is the mode accomplishing the same. Distinctions:
Mode Title Serves merely to give the occasion for its acquisition or existence Means Remote cause Means whereby that essence is transmitted

Requisites: o Corporeal personal property o Property susceptible of appropriation not res communes o Seizure with intent to appropriate o Res nullius (no owner) or res derelict (abandoned property) o Observance of conditions prescribed by law Kinds: o Of Animals Wild or feral animals seizure (hunting/fishing) in open season by means NOT prohibited Tamed/domesticated animals general rule: belong to the tamer but upon recovering freedom are susceptible to occupation UNLESS claimed within 20days from seizure by another (ART. 716) Tame/domestic animals not acquired by occupation EXCEPT when ABANDONED o Of Other Personal Property Abandoned may be acquired Lost not known to be abandoned (ART. 719) Hidden treasure finder gets by occupation; landowner gets by accession; EXCEPT in CPG system, share goes to the partnership

Directly and immediately produces a real right Cause Proximate cause Essence of the right which is to be created or transmitted

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Chapter X. MODES of ACQUIRING OWNERSHIP

Specific rules o Not applicable to ownership of a piece of land The ownership of a piece of land cannot be acquired by occupation. (Article 714, Civil Code) State owns a piece of land which has no owner therefore it cannot be acquired by occupation. o Privilege to hunt and fish regulated by special law Article 715, Civil Code. The right to hunt and to fish is regulated by special laws. Occupation of a swarm of bees or domesticated animals Article 716, Civil Code. The owner of a swarm of bees shall have a right to pursue them to anothers land, indemnifying the possessor of the latter for the damage. If the owner has not pursued the swarm, or ceases to do so within two consecutive days, the possessor of the land may occupy or retain the same. The twenty days to be counted from their occupation by another person. This period having expired, they shall pertain to him who has caught and kept them. Article 560, Civil Code. Wild animals are possessed only while they are under one's control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor.

property shall have the right granted him in article 438 of this Code. Lost movables; procedure after finding lost movables Art. 719, CC Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the latter is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding has taken place. The finding shall be publicly announced by the mayor for two consecutive weeks in the way he deems best. If the movable cannot be kept without deterioration, or without expenses which considerably diminish its value, it shall be sold at public auction eight days after the publication. Six months from the publication having elapsed without the owner having appeared, the thing found, or its value, shall be awarded to the finder. The finder and the owner shall be obliged, as the case may be, to reimburse the expenses. Article 720, CC. If the owner should appear in time, he shall be obliged to pay, as a reward to the finder, one-tenth of the sum or of the price of the thing found.

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2. INTELLECTUAL CREATION
Article 721, Civil Code. By intellectual creation, the following persons acquire ownership: 1. The author with regard to his literary, dramatic, historical, legal, philosophical, scientific or other work 2. The composer; as to his musical composition; 3. The painter, sculptor, or other artist, with respect to the product of his art; 4. The scientist or technologist or any other person with regard to his discovery or invention. Article 722, Civil Code. The author and the composer, mentioned in Nos. 1 and 2 of the preceding article, shall have the ownership of their creations even before the publication of the same. Once their works are published, their rights are

Pigeons and fish Article 717, Civil Code. Pigeons and fish which from their respective breeding places pass to another pertaining to a different owner shall belong to the latter, provided they have not been enticed by some artifice or fraud. Hidden treasure Article 718, Civil Code. He who by chance discovers hidden treasure in anothers

CIVIL LAW REVIEWER governed by the Copyright laws. The painter, sculptor or other artist shall have dominion over the product of his art even before it is copyrighted. The scientist or technologist has the ownership of his discovery or invention even before it is patented. Article 723, Civil Code. Letters and other private communications in writing are owned by the person to whom they are addressed and delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However, the court may authorize their publication or dissemination if the public good or the interest of justice so requires. Article 724, Civil Code. Special laws govern copyright and patent.

Chapter X. MODES of ACQUIRING OWNERSHIP

Statutory copyright

Dual interest in letters (ART. 723): o From the viewpoint of the SENDER/WRITER the intellectual property consists in the ideas and thoughts expressed therein. o From the viewpoint of the RECIPIENT the paper or material used where the writing was impressed or done, pertains in ownership to the recipient. Intellectual Property Code of 1997 (RA 8293) is the special law which governs copyright and patent

2. TRADEMARKS, TRADE NAMES and SERVICE MARKS Definitions under the Trademark Law (RA 166): o Trademark - any word, name, symbol, emblem, sign or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured, sold or dealt in by others. o Trade-name - individual names and surnames, firm names, tradenames, devices or words used by manufacturers, industrialists, merchants, agriculturists, and others to identify their business, vocations or occupations o Service mark - mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others 3. GEOGRAPHIC INDICATIONS of ORIGIN False designation of origin is punishable under ART. 189 of RPC 4. INDUSTRIAL DESIGNS Any composition of lines and colors or any 3-dimensional form, w/n associated with lines and colors 5. PATENTS An exclusive right to invention granted to a patentee, his heirs or assigns for the term thereof Essential elements of an invention to be patentable: o Novelty o Prior art Requisites: o There must be an invention o Of a new and useful machine, product/substance of possible advantage to the public o Not previously known or used or described in printed publications or in public use or on sale in the Phils. or covered by prior patent o Includes new and original industrial designs o NOT patentable if: Contrary to public order, morals, public health or welfare Abstract idea/principle/theorem

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INTELLECTUAL PROPERTY RIGHTS 1. COPYRIGHT and RELATED RIGHTS Copyright o an intangible, incorporeal right o granted by statute o to the author or originator of certain literary or artistic productions, o whereby he is invested, for a specific period, 30 YRS. renewable for another 30 YRS. 40 YRS for SERIAL publications st from the publication of the 1 volume renewable for 30 YRS. o with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. Purpose of the law: protect and control the visible thing created and the intangible estate arising from the privilege of publishing and selling to others copies of the thing produced Kinds o Common law copyright

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Chapter X. MODES of ACQUIRING OWNERSHIP

6. TOPOGRAPHIES of INTEGRATED CIRCUITS 7. RIGHTS of PERFORMERS, PRODUCERS of SOUND RECORDINGS and BROADCASTING ORGANIZATIONS 8. PROTECTION of UNDISCLOSED INFORMATION _______________

o o o o

Public Peaceful Uninterrupted Adverse

ACQUISITIVE v. EXTINCTIVE
Extinctive Prescription Statute of limitation Inaction or neglect of the owner

B. DERIVATIVE Derivative modes of acquiring ownership are based on a right previously held by another person, and therefore, subject to the same characteristics, powers, burdens, etc. as when held by previous owner. 1. LAW should be interpreted to apply only to situations where ownership is vested independently of the other modes 2. DONATION see next chapter 3. SUCCESSION MORTIS CAUSA
Article 774, Civil Code. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. Article 776, Civil Code. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death Article 777, Civil Code. The rights to the succession are transmitted from the moment of the death of the decedent.

Acquisitive Prescription vests the property and raise a new title in the occupant Positive action of the possessor

Requisites common to ordinary and extraordinary acquisitive prescription: o Capacity of the acquirer o Capacity of the loser to lose by prescription o Object susceptible to prescription o Lapse of required time Ordinary acquisitive Movable property 4yrs Immovable 10yrs Extraordinary acquisitive Movable 8yrs Immovable 30yrs Additional requirements for ordinary acquisitive prescription: o Good faith o Just title

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Elements of Succession: o Transmission of property, rights and obligations to another o Cause of transmission is the DEATH of the decedent o Procedure of transmission is by WILL or OPERATION of LAW o ACCEPTANCE of the inheritance by the heir Rights to the succession are vested as of the MOMENT of DEATH of the decedent

5. TRADITION Requisites: o Pre-existence of right in estate of grantor o Just cause or title for the transmission o Intention o Capacity o Act of giving it outward form, physically, symbolically or legally Kinds: o Real tradition PHYSICALY DELIVERY of the thing; actual transfer of control and possession with intent to pass ownership or real right over the property Movable hand to hand transfer of the thing Immovable material acts performed by grantee

4. (ACQUISITIVE) PRESCRIPTION Mode of acquiring ownership through the lapse of time in the manner and under the conditions laid down by law Possession should be: o In the concept of an owner

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Chapter X. MODES of ACQUIRING OWNERSHIP

Constructive tradition NOT the real or material delivery of the thing that may take place in any of the ff: Symbolic delivery delivery of signs or things which represent that which is being transmitted Delivery of public instrument substitution of the real delivery of possession by a public writing with delivery of document Traditio longa manu pointing of the thing within sight by grantor to grantee Traditio brevi manu grantees continuous possession over the thing delivered but now under the title of ownership Traditio constitutum possessorium owner remains in possession of the thing but in another concept Quasi-tradition delivery of incorporeal things or rights by the grantee of his right with the owners consent Tradition by operation of law

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Chapter XI. DONATION

Chapter XI. Donation


I. II. III. IV. V. NATURE REQUISITES KINDS WHO MAY GIVE OR RECEIVE DONATIONS WHO MAY NOT GIVE OR RECEIVE DONATIONS VI. ACCEPTANCE VII. FORM VIII. WHAT MAY BE DONATED IX. EFFECT X. REVOCATION AND REDUCTION

Irrevocable EXCEPT for the ff grounds: o Subsequent birth of the donors children o Donors failure to comply with imposed conditions o Donees ingratitude o Reduction of donation by reason of inofficiousness NO OPTION to revoke AT WILL before the donor dies

2. MORTIS CAUSA
Article 728, Civil Code. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession.

I.

Nature
BILATERAL contract creating UNILATERAL obligations on the donors part Requires CONSENT of BOTH donor and donee though it produces obligations only on the side of the DONOR

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II. Requisites
CONSENT and CAPACITY of the parties ANIMUS DONANDI (intent to donate) DELIVERY of thing donated FORM as prescribed by law IMPOVERISHMENT of donors patrimony and ENRICHMENT on part of done

Becomes effective upon the death of donor Donors death ahead of the donee is a SUSPENSIVE CONDITION for the existence of the donation Characteristics: o Transferor retains ownership and control of the property while alive o Transfer is revocable at will before his death o Transfer will be VOID if the transferor should survive the transferee INTER VIVOS v. MORTIS CAUSA
Inter vivos Mortis causa Must be in the form of a will, with all the formalities for the validity of wills Otherwise, its void and cannot transfer ownership. Effective after the death of the donor Acceptance must be made after the death of the donor, the donation being effective only after the death of donor. Acceptance during the donors lifetime is premature and ineffective because there

III. Kinds
A. As to its taking effect 1. INTER VIVOS
Article 729, Civil Code. When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. Article 730, Civil Code. The fixing of an event or the imposition of a suspensive condition, which may take place beyond the natural expectation of life of the donor, does not destroy the nature of the act as a donation inter vivos, unless a contrary intention appears. Article 731, Civil Code. When a person donates something, subject to the resolutory condition of the donor's survival, there is a donation inter vivos. As to formalities Executed and accepted with formalities prescribed by CC 748 & 749

As to effectivity

Effective during the lifetime of the donor

As to acceptance

Acceptance must be made during the lifetime of the donor

Take effect independently of the donors death

CIVIL LAW REVIEWER can be no contract regarding future inheritance As to transfer of ownership for right of disposition Ownership is immediately transferred. Delivery of possession is allowed after death Irrevocable may be revoked only for the reasons provided in CC 760, 764, 765 When it is excessive or inofficious, being preferred, it is reduced only after the donations mortis causa had been reduced or exhausted

Chapter XI. DONATION

ORDINARY v. PROPTER NUPTIAS


Ordinary Propter nuptias Not required May be made by minors (FC 78) May include future property (same rule as wills) If present property is donated and property regime is ACP, limited to 1/5 FC 86

Ownership is transferred after death

Express acceptance As to minors As to future property Limit as to donation of present property Grounds for revocation

Necessary Cant be made by minors Cannot include future property No limit to donation of present property provided legitimes are not impaired Law on donations

As to revocation

Revocable upon the exclusive will of the donor

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As to reduction or suppression

When it is excessive or inofficious, it is reduced first, or even suppressed

______________ B. As to cause or consideration

NATURE of the act, whether its one of disposition or of execution, is CONTROLLING to determine whether the donation is mortis causa or inter vivos. What is important is the TIME of TRANSFER of ownership even if transfer of property donated may be subject to a condition or a term. Whether the donation is inter vivos or mortis causa depends on whether the donor intended to transfer ownership over the properties upon the execution of the deed. (Gestopa v. CA; Austria-Magat v. CA)

3. PROPTER NUPTIAS
Article 82, Family Code. W hen the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. Article 87, Family Code. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.

1. SIMPLE made out of PURE LIBERALITY or because of the MERITS of the done 2. REMUNERATORY made for SERVICES already rendered to the donor 3. ONEROUS imposes a BURDEN inferior in value to property donated a. Improper burden EQUAL in value to property donated b. Sub-modo or modal imposes a prestation upon donee as to how property donated will be applied c. Mixed donations ex: sale for price lower than value of property
A simple or pure donation is one whose cause is pure liberality, while an onerous donation is one subject to burdens, charges, or future services equal to or more in value than the thing donated. (Lagazo v. CA)

C. As to effectivity or extinguishment 1. PURE donation is without conditions or periods 2. CONDITIONAL donation is subject to suspensive or resolutory conditions 3. WITH A TERM

IV. Who May Give or Receive Donations


Requisites o Must be made BEFORE the celebration of marriage o Made in CONSIDERATION of the marriage o Made in FAVOR of ONE or BOTH of the future spouses
Article 735, Civil Code. All persons who may contract and dispose of their property may make a donation. Article 737, Civil Code. The donor's capacity shall be determined as of the time of the making of the donation.

CIVIL LAW REVIEWER Article 738, Civil Code. All those who are not specially disqualified by law therefor may accept donations. Article 741, Civil Code. Minors and others who cannot enter into a contract may become donees but acceptance shall be done through their parents or legal representatives. Article 737, Civil Code. Donations made to conceived and unborn children may be accepted by those persons who would legally represent them if they were already born.

Chapter XI. DONATION sister, or spouse, shall be valid; Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; Individuals, associations and corporations not permitted by law to inherit.

4.

5.

6.

V. Who May Donations

Not

Give

or

Receive

Article 736, Civil Code. All persons who may contract and dispose of their property may make a donation. Article 739, Civil Code. The following donations shall be void: 1. Those made between persons who were guilty of adultery or concubinage at the time of the donation; 2. Those made between persons found guilty of the same criminal offense, in consideration thereof; 3. Those made to a public officer or his wife, descedants and ascendants, by reason of his office.In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1027, Civil Code. The following are incapable of succeeding: 1. The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; 2. The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; 3. A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother,

Article 740, Civil Code. Incapacity to succeed by will shall be applicable to donations inter vivos. Article 743, Civil Code. Donations made to incapacitated persons shall be void, though simulated under the guise of another contract or through a person who is interposed. Article 744, Civil Code. Donations of the same thing to two or more different donees shall be governed by the provisions concerning the sale of the same thing to two or more different persons.

A. By reason of public policy (ART. 739) 1. Those made between persons guilty of adultery or concubinage at the time of donation 2. Those made between persons guilty of the same criminal offense if the donation is made in consideration thereof 3. Those made to a public officer, his spouse, descendants, and/or ascendants by reason of the office B. By reason of donees unworthiness (ART. 1032 and 1027 [except (4)]) C. By reason of prejudice to creditors or heirs (voidable)

PROPERTY

Capacity to donate is required for donations inter vivos and NOT mortis causa o Donors capacity determined as of the TIME of the DONATION. Subsequent incapacity is immaterial Capacity to accept donations ALL persons NOT disqualified by law may be donees

Article 1032, Civil Code. The following are incapable of succeeding by reason of unworthiness: 1. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; 2. Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; 3. Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless; 4. Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation;

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Chapter XI. DONATION

VI. Acceptance
Donation is perfected upon the DONORS LEARNING of the acceptance Acceptance may be made during the LIFETIME of BOTH donor and donee

B. REAL PROPERTY
Article 749, Civil Code. In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy. The acceptance may 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. If 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.

A. WHO MAY ACCEPT


Article 745, Civil Code. The donee must accept the donation personally, or through an authorized person with a special power for the purpose, or with a general and sufficient power; otherwise, the donation shall be void. Article 747, Civil Code. Persons who accept donations in representation of others who may not do so by themselves, shall be obliged to make the notification and notation of which Article 749 speaks.

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PROPERTY

Acceptance or consent must be PERSONAL or through a person AUTHORIZED generally or specifically

B. TIME of ACCEPTANCE
Article 746, Civil Code. Acceptance must be made during the lifetime of the donor and of the donee. The donation is perfected only upon the moment the donor knows of the donees acceptance. If 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. (Lagazo v CA)

Must be in PUBLIC INSTRUMENT specifying donated property and burdens assumed by the donee regardless of value Acceptance must be EITHER: o In the SAME INSTRUMENT OR o In ANOTHER PUBLIC INSTRUMENT notified to the donor in authentic form and noted in both deeds

VII. Form
A. PERSONAL PROPERTY
Article 748 , The donation of a movable may be made orally or in writing. An oral donation requires the simultaneous delivery of the thing or of the document representing the right donated. If the value of the personal property donated exceeds five thousand pesos, the donation and the acceptance shall be made in writing, otherwise, the donation shall be void.

Title to immovable property does not pass from donor to donee by virtue of a deed of donation until and unless it has been accepted in a public instrument and the donor duly notified thereof. Where the deed fails to show the acceptance, or where the formal notice of the acceptance made in a separate instrument is not given to the donor or else not noted in the deed of donation and in the separate acceptance, the donation is null and void. (Sumipat v Banga)

Exceptions: o Donations propter nuptias need NO express acceptance o Onerous donations form governed by the rules of contracts

VIII.

What May Be Donated

A. ALL PRESENT PROPERTY or PART THEREOF of THE DONOR 1. Provided he RESERVES, in full ownership or usufruct, sufficient means for support of himself and all relatives entitled to be supported by donor at the time of acceptance
Article 750, Civil Code. The donations may comprehend all the present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct, sufficient means for the support of himself,

WITH simultaneous delivery of donated property may be oral UNLESS it exceeds P5k in which case its VOID if NOT in writing WITHOUT simultaneous delivery must be in WRITING including the ACCEPTANCE regardless of value

CIVIL LAW REVIEWER and of all relatives who, at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such reservation, the donation shall be reduced in petition of any person affected.

Chapter XI. DONATION Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. CC Article 130. The future spouses may give each other in their marriage settlements as much as onefifth of their present property, and with respect to their future property, only in the event of death, to the extent laid down by the provisions of this Code referring to testamentary succession.

2. Provided that NO PERSON may give or receive by way of donation, more than he may give or receive by will (ART. 752); also, reserves property sufficient to pay donors debts contracted before donation, otherwise, donation is in FRAUD of creditors (ARTS. 759, 1387)
Article 752, Civil Code. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will. The donation shall be inofficious in all that it may exceed this limitation. Article 759, Civil Code. There being no stipulation regarding the payment of debts, the donee shall be responsible therefor only when the donation has been made in fraud of creditors . The donation is always presumed to be in fraud of creditors, when at the time thereof the donor did not reserve sufficient property to pay his debts prior to the donation. Article 1387, Civil Code. All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation. Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party seeking the rescission. In addition to these presumptions, the design to defraud creditors may be proved in any other manner recognized by the law of evidence.

b. Donation propter nuptias by an ascendant consisting of jewelry, furniture or clothing not to exceed 1/10 of disposable portion
PROPERTY

Article 1070, Civil Code. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum

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which is disposable by will. B. WHAT MAY NOT BE FUTURE PROPERTY


Article 751, Civil Code. comprehend future property.

DONATED

Donations

cannot

By future property is understood anything which the donor cannot dispose of at the time of the donation.

Includes ALL property that belongs to others at the time the donation is made although it may or may not later belong to the donor

IX. Effect
A. IN GENERAL 1. Donee may demand actual delivery of thing donated 2. Donee is SUBROGATED to rights of donor in the property donated
Article 754, Civil Code. The donee is subrogated to all the rights and actions which in case of eviction would pertain to the donor. The latter, on the other hand, is not obliged to warrant the things donated, save when the donation is onerous, in which case the donor shall be liable for eviction to the concurrence of the burden. The donor shall also be liable for eviction or hidden defects in case of bad faith on his part.

3. If donation EXCEEDS the disposable or free portion of his estate, donation is inofficious 4. EXCEPTIONS a. Donations provided for in marriage settlements between future spouses not more than 1/5 of present property
FC Article 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

3. Donor NOT obliged to warrant things donated EXCEPT in onerous donations in which case donor is liable for eviction up to extent of burden (ART. 754)

CIVIL LAW REVIEWER

Chapter XI. DONATION third person in violation of what is provided in the preceding paragraph shall be void, but shall not nullify the donation.

4. Donor is liable for EVICTION or HIDDEN DEFECTS in case of BF on his part (ART. 754) 5. In donation propter nuptias, donor must RELEASE property donated from mortgages and other encumbrances UNLESS the contrary has been stipulated
Article 131, Civil Code. The donor by reason of marriage shall release the property donated from mortgages and all other encumbrances upon the same, with the exception of easements, unless in the marriage settlements or in the contracts the contrary has been stipulated.

4. Payment of donors debt


Article 758, Civil Code. When the donation imposes upon the donee the obligation to pay the debts of the donor, if the clause does not contain any declaration to the contrary, the former is understood to be liable to pay only the debts which appear to have been previously contracted. In no case shall the donee be responsible for the debts exceeding the value of the property donated, unless a contrary intention clearly appears.

Article 753, Civil Code. When a donation is made to several persons jointly, it is understood to be in equal shares, and there shall be no right of accretion among them, unless the donor has otherwise provided. The preceding paragraph shall not be applicable to donations made to the husband and wife jointly, between whom there shall be a right of accretion, if the contrary has not been provided by the donor.

5. Illegal or impossible conditions


Article 272, Civil Code. Children who are legitimated by subsequent marriage shall enjoy the same rights as legitimate children. Article 1183, Civil Code. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by 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.

B. SPECIAL PROVISIONS 1. Reservation by donor of power to dispose (in whole or in part) or to encumber property donated
Article 755, Civil Code. The right to dispose of some of the things donated, or of some amount which shall be a charge thereon, may be reserved by the donor; but if he should die without having made use of this right, the property or amount reserved shall belong to the donee.

X. Revocation and Reduction


A. DISTINCTIONS
Revocation Total, whether the legitime is impaired or not Benefits the donor Reduction Made insofar as the legitime is prejudiced Benefits the donors heirs (except when made on the ground of the appearance of a child)

2. Donation of naked ownership to one donee and usufruct to another


Article 756, Civil Code. The ownership of property may also be donated to one person and the usufruct to another or others, provided all the donees are living at the time of the donation.

3. Conventional reversion in favor of donor or other person


Article 757, Civil Code. Reversion may be validly established in favor of only the donor for any case and circumstances, but not in favor of other persons unless they are all living at the time of the donation. Any reversion stipulated by the donor in favor of a

B. CAUSES of REDUCTION 1. Inofficiousness

REVOCATION

OR

Article 752, Civil Code. The provisions of Article 750 notwithstanding, no person may give or receive, by way of donation, more than he may give or receive by will.

PROPERTY

6. Donations to several donees jointly NO right of accretion EXCEPT: a. Donor provides otherwise b. Donation to husband and wife jointly with right of accretion UNLESS donor provides otherwise

If expressly stipulated donee to pay only debts contracted BEFORE the donation UNLESS specified otherwise. But in no case shall donee be responsible for debts exceeding value of property donated unless clearly intended If theres NO stipulation donee answerable only for donors debt ONLY in case donation is in fraud of creditors

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CIVIL LAW REVIEWER The donation shall be inofficious in all that it may exceed this limitation. Article 771, Civil Code. Donations which in accordance with the provisions of Article 752, are inofficious, bearing in mind the estimated net value of the donor's property at the time of his death, shall be reduced with regard to the excess; but this reduction shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the donee from appropriating the fruits. For the reduction of donations the provisions of this Chapter and of Articles 911 and 912 of this Code shall govern. Article 773, Civil Code. If, there being two or more donations, the disposable portion is not sufficient to cover all of them, those of the more recent date shall be suppressed or reduced with regard to the excess.

Chapter XI. DONATION

o o o

birth, adoption or reappearance of the child Donee must return the property or its value at the time of the donation Fruits to be returned from the filing of the action Mortgages by the donee are valid but may be discharged subject to reimbursement from the donee

Extent of revocation only to the extent of the presumptive legitime of the child Prescription 4yrs

C. REVOCATION ONLY 1. Ingratitude


Article 765, Civil Code. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases: 1. If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority; 2. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or the act has been committed against the donee himself, his wife or children under his authority; 2. If he unduly refuses him support when the donee is legally or morally bound to give support to the donor.

228
PROPERTY

Who may ask for reduction

Article 772, Civil Code.Only those who at the time of the donor's death have a right to the legitime and their heirs and successors in interest may ask for the reduction or inofficious donations. Those referred to in the preceding paragraph cannot renounce their right during the lifetime of the donor, either by express declaration, or by consenting to the donation. The donees, devisees and legatees, who are not entitled to the legitime and the creditors of the deceased can neither ask for the reduction nor avail themselves thereof.

Rule applied if disposable portion not sufficient to cover 2 or more donations (ART. 773)

2. Subsequent birth, reappearance of child or adoption of minor by donor


Article 760, Civil Code. Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events: 1. If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous; 2. If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living; 3. If the donor subsequently adopt a minor child.

Applies to all donations EXCEPT: o Mortis causa o Propter nuptias o Onerous Founded on moral duty one who received a donation must be grateful to his benefactor Conviction NOT necessary Time to file action for revocation within 1yr from knowledge of the offense

Article 769, Civil Code. The action granted to the donor by reason of ingratitude cannot be renounced in advance. This action prescribes within one year, to be counted from the time the donor had knowledge of the fact and it was possible for him to bring the action.

Who may file donor must bring action himself; NOT transmissible to his heirs

Effects: o Donation is VALID if not exceeding the free part computed as of the

Article 770, Civil Code. This action shall not be transmitted to the heirs of the donor, if the latter did not institute the same, although he could have done so, and even if he should die before the expiration of one year.

CIVIL LAW REVIEWER Neither can this action be brought against the heir of the donee, unless upon the latter's death the complaint has been filed.

Chapter XI. DONATION When the property cannot be returned, it shall be estimated at what it was worth at the time of the donation. Article 764, par. 2, Civil Code. In this case, the property donated shall be returned to the donor, the alienations made by the donee and the mortgages imposed thereon by him being void, with the limitations established, with regard to third persons, by the Mortgage Law and the Land Registration Laws. Article 767, Civil Code. In the case referred to in the first paragraph of the preceding article, the donor shall have a right to demand from the donee the value of property alienated which he cannot recover from third persons, or the sum for which the same has been mortgaged.

Effect of revocation on alienations and encumbrances

Article 766, Civil Code. Although the donation is revoked on account of ingratitude, nevertheless, the alienations and mortgages effected before the notation of the complaint for revocation in the Registry of Property shall subsist. Later ones shall be void. Article 767, , Civil Code.In the case referred to in the first paragraph of the preceding article, the donor shall have a right to demand from the donee the value of property alienated which he cannot recover from third persons, or the sum for which the same has been mortgaged. The value of said property shall be fixed as of the time of the donation.

229
PROPERTY

Effect as to fruits

2. Violation of condition

D. Effect of revocation or reduction


Article 762, Civil Code. Upon the revocation or reduction of the donation by the birth, appearance or adoption of a child, the property affected shall be returned or its value if the donee has sold the same. If the property is mortgaged, the donor may redeem the mortgage, by paying the amount guaranteed, with a right to recover the same from the donee.

Article 768, Civil Code. When the donation is revoked for any of the causes stated in Article 760, or by reason of ingratitude, or when it is reduced because it is inofficious, the donee shall not return the fruits except from the filing of the complaint. If the revocation is based upon noncompliance with any of the conditions imposed in the donation, the donee shall return not only the property but also the fruits thereof which he may have received after having failed to fulfill the condition.

SUMMARY
Limitation: 1) He reserves in full ownership or in usufruct, sufficient means for his support and all relatives who are at the time of the acceptance of the donation are, by law, entitled to be supported Effect of non-reservation: reduction of the donation 2) He reserves sufficient property at the time of the donation for the full settlement of his debts

What may be donated (Article 750)

All present property of the donor or part thereof

Effect of non-reservation: considered to be a donation in fraud of creditors, and donee may be liable for damages

CIVIL LAW REVIEWER 1) What may not be donated Future property; those which the donor cannot dispose of at the time of the donation (Article 751) 2) More than what he may give or receive by will (Article 752) If exceeds: inofficious No accretion one donee does not get the share of the other donees who did not accept (Article 753)

Chapter XI. DONATION

Donations made to several persons jointly

Donor

Who are allowed: All persons who may contract (of legal age) and dispose of their property (Article 735) Donors capacity is determined at the time of the making of donation (Article 737)

Who are allowed to accept donations: Those who are not specifically disqualified by law (Article 738) Those who are allowed, with qualifications: 1) Minors and others who are incapacitated (see Article 38), provided that their acceptance is done through their parents or legal representatives (Article 741) 2) Conceived and unborn children, provided that the donation is accepted by those who would legally represent them if they were already born Who may accept (Article 745): 1) Donee personally 2) Authorized person with a special power for the purpose or with a general sufficient power He shall be subrogated to all the rights and actions that would pertain to the donor in case of eviction (Article 754) No obligation to warrant (Article 754) If the donation so states, the donee may be obliged to pay the debts previously contracted by the donor and in no case shall he be responsible for the debts exceeding the value of the thing donated (Article 758) Right to dispose of some of the things donated, or of dome amount which shall be a charge thereon The property donated may be restored or returned to 1) Donor or his estate; or 2) Another person

Donee

Exception: those given to husband and wife, except when the donor otherwise provides Who are not allowed: 1) Guardians and trustees with respect to the property entrusted to them (Article 736) 2) Made between person who are guilty of adultery and concubinage (Article 739) 3) Made between persons found guilty of the same criminal offense, in consideration thereof (Article 739) Who are not allowed: 1) Made between person who are guilty of adultery and concubinage (Article 739) 2) Made between persons found guilty of the same criminal offense, in consideration thereof (Article 739) 3) Made to a public officer or his wife, descendant and ascendants, by reason of his office (Article 739) 4) Those who cannot succeed by will (Article 740) 5) Those made to incapacitated persons, although simulated under the guise of another contract (Article 743) When to accept: during the lifetime of the donor or donee (Article 746)

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PROPERTY

Acceptance of the donation

What the donee acquires with the thing Obligation of the donor

Exception: when the donation is onerous

Obligation of the donee

Exception: when contrary intention appears

What may be reserved by the donor

If the donor dies without exercising this right, the portion reserved shall belong to the donee Limitation to (2): the third person whoul be living at the time of the donation

Reversion

CIVIL LAW REVIEWER

Chapter XI. DONATION

REVOCATION/REDUCTION
Basis Birth, appearance, adoption Time of Action Within 4 years from birth, legitimation and adoption Transmissibility Transmitted to children and descendants upon the death of donor May be transmitted to donors heirs and may be exercised against donees heirs Effect Property returned/ value (if sold)/ redeem mortgage with right to recover Property returned, alienations and mortgages void subject to rights of third persons in good faith Property returned, but alienations and mortgages effected before the notation of the complaint for revocation in the registry of property subsist Reduced to the extent necessary to provide support Donation takes effect on the lifetime of donor. Reduction only upon his death with regard to the excess Returned for the benefit of the creditor who brought the action Liability (Fruits) Fruits returned from the filing of the complaint

Non-compliance with condition

Within 4 years from non-compliance

Fruits received after having failed to fulfill condition returned

Ingratitude

Failure to reserve sufficient means for support Inofficiousness for being in excess of what the donor can give by will

At any time, by the donor or relatives entitled o support Within 5 years from the death of the donor Rescission within 4 years from the perfection of donation/ knowledge of the donation

Not transmissible

Donee entitled

Transmitted to donors heirs

Donee entitled

Fraud against creditors

Transmitted to creditors heirs or successors-in-interest

Fruits returned/ if impossible, indemnify creditor for damages

PROPERTY

Within 1 year after knowledge of the fact

Generally not transmitted to heirs of donor/ donee

Fruits received from the filing of the complaint returned

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CIVIL LAW REVIEWER

Chapter XII. LEASE

Chapter XII. Lease


I. II. GENERAL CHARACTERISTICS KINDS A. LEASE OF THINGS B. LEASE OF WORK C. LEASE OF SERVICES III. LEASE OF THINGS

Lease of consumables which are ACCESSORIES in the lease of an industrial management

B. SPECIAL CHARACTERISTICS of LEASE of THINGS Essential purpose is to TRANSMIT the USE or ENJOYMENT of a thing Consensual Onerous Price is FIXED in relation to the period of use/enjoyment Temporary

I.

General Characteristics
a. Temporary duration b. Onerous c. Price is fixed according to contract duration

A. Lease of things Involves an obligation on the part of the lessor to deliver the thing which is the object thereof and the correlative right of the lessee to peaceful and adequate enjoyment thereof for a price certain B. Lease of work or contract of labor (Arts. 1700-1712) C. Lease of services 1. Household service 2. Contract for a piece of work (ARTS. 1713-1731) 3. Lease of services of common carriers (ARTS. 1732-1763)

Lease Only the use or enjoyment of the thing is transferred and only for a determinate period Lessor need not be the owner of the thing leased

Sale Permanent transmission of ownership of the thing sold, unless subject to a resolutory condition Seller must be the owner or at least authorized by the owner to transfer ownership of the thing at the time it is derived Usufruct Always a real right

III. Lease of Things


A. CONCEPT
Article 1643, Civil Code. In the lease of things, one of the parties binds himself to give to another the enjoyment or use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease for more than ninety-nine years shall be valid.

Lease A real right only by exception (When registered and for more than 1 year) To constitute usufruct, ownership is not required in order to lease an object Lessor places and maintains the lessee in enjoymentof the thing. Lease may be limited to particular uses by the contract Contract of lease must be for a definite period, absent stipulation of such, court must fix such period. Lease Onerous Not essentially personal in character, therefore, the right may be transmitted to the heirs

To constitute a usufruct, one must be the owner of the thing. Owner allows the usufructuary to use and enjoy the property Usufruct includes all possible uses and manner of enjoyment of the property Usufruct may be for an indefinite period of time

Subject matter must be WITHIN THE COMMERCE OF MAN General rule: CONSUMMABLE things CANNOT be the subject matter of lease; EXCEPTIONS o Lease of consumable property NOT for purpose of consuming it but for purpose of DISPLAY or ADVERTISING it (lease ad pompam et ostentationem)

Consensual contract

Commodatum Gratuitous Purely personal in character and consequently, the death of either the bailor or bailee extinguishes the contract Real contract perfected by the delivery of the object therefor

PROPERTY

II. Kinds

C. LEASE DISTINGUISHED FROM SALE, USUFRUCT, COMMODATUM

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Chapter XII. LEASE

D. PERIOD of LEASE MAXIMUM period is 99yrs When period is INDEFINITE: o RURAL land

F. SUBLEASE Article 1650 When in the contract of lease of things there is no express prohibition, the lessee may sublet the thing leased, in whole or in part, without prejudice to his responsibility for the performance of the contract toward the lessor. There are 2 leases and 2 distinct juridical relations: o Between the LESSOR and LESSEE o Between the SUBLESSOR (lessee) and the SUBLESSEE Sublessee generally does not have any direct action against the lessor to require compliance with his or the lessees obligations or vice versa Sublessee is NOT a party to the contract between the lessor and lessee Obligation of sublessee to lessor

Article 1682, Civil Code. The lease of a piece of rural land, when its duration has not been fixed, is understood to have been for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years have to elapse for the purpose.

URBAN land

233
PROPERTY

Article 1687, Civil Code. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month.

Article 1651, Civil Code. Without prejudice to his obligation toward the sublessor, the sublessee is bound to the lessor for all acts which refer to the use and preservation of the thing leased in the manner stipulated between the lessor and the lessee.

E. ASSIGNMENT of LEASE
Article 1649, Civil Code. The lessee cannot assign the lease without the consent of the lessor, unless there is a stipulation to the contrary.

For RENTS

General Rule: lessee CANNOT assign the lease WITHOUT the CONSENT of the lessor UNLESS theres a stipulation to the contrary ASSIGNMENT v. SUBLEASE
Sublease

Article 1652, Civil Code. The sublessee is subsidiarily liable to the lessor for any rent due from the lessee. However, the sublessee shall not be responsible beyond the amount of rent due from him, in accordance with the terms of the sublease, at the time of the extrajudicial demand by the lessor. Payments of rent in advance by the sublessee shall be deemed not to have been made, so far as the lessor's claim is concerned, unless said payments were effected in virtue of the custom of the place.

Assignment of Lease Transfer to a third person of the rights and obligations arising from the lease contract. It is in fact a sale of the lessees rights, and when the lessor gives his consent to it, the original lessee is released from his obligations under the contract. The Express of the lessor is either express or implied. There is a succession by particular title to one contract of lease.

G. RIGHTS and OBLIGATIONS of LESSOR and LESSEE 1. Obligations of LESSOR


Article 1654, Civil Code. The lessor is obliged: (1) To deliver the thing which is the object of the contract in such a condition as to render it fit for the use intended; (2) To make on the same during the lease all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary; (3) To maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract.

Merely another contract of lease, where the original lessee becomes in turn a lessor. Even when the lessor consents to the sublease, the original lease contract still subsists and is binding on the lessee. There is a juxtaposition of two leases.

CIVIL LAW REVIEWER Article 1661, Civil Code. The lessor cannot alter the form of the thing leased in such a way as to impair the use to which the thing is devoted under the terms of the lease.

Chapter XII. LEASE Article 1667, Civil Code. The lessee is responsible for the deterioration or loss of the thing leased, unless he proves that it took place without his fault. This burden of proof on the lessee does not apply when the destruction is due to earthquake, flood, storm or other natural calamity.

2. Obligations of LESSEE
Article 1657, Civil Code. The lessee is obliged: (1) To pay the price of the lease according to the terms stipulated; (2) To use the thing leased as a diligent father of a family, devoting it to the use stipulated; and in the absence of stipulation, to that which may be inferred from the nature of the thing leased, according to the custom of the place; (3) To pay expenses for the deed of lease. Article 1662, Civil Code. If during the lease it should become necessary to make some urgent repairs upon the thing leased, which cannot be deferred until the termination of the lease, the lessee is obliged to tolerate the work, although it may be very annoying to him, and although during the same, he may be deprived of a part of the premises. If the repairs last more than forty days the rent shall be reduced in proportion to the time - including the first forty days - and the part of the property of which the lessee has been deprived. When the work is of such a nature that the portion which the lessee and his family need for their dwelling becomes uninhabitable, he may rescind the contract if the main purpose of the lease is to provide a dwelling place for the lessee. Article 1663, Civil Code. The lessee is obliged to bring to the knowledge of the proprietor, within the shortest possible time, every usurpation or untoward act which any third person may have committed or may be openly preparing to carry out upon the thing leased. He is also obliged to advise the owner, with the same urgency, of the need of all repairs included in No. 2 of Article 1654. In both cases the lessee shall be liable for the damages which, through his negligence, may be suffered by the proprietor. If the lessor fails to make urgent repairs, the lessee, in order to avoid an imminent danger, may order the repairs at the lessor's cost. Article 1665, Civil Code. The lessee shall return the thing leased, upon the termination of the lease, as he received it, save what has been lost or impaired by the lapse of time, or by ordinary wear and tear, or from an inevitable cause. Article 1668, Civil Code. The lessee is liable for any deterioration caused by members of his household and by guests and visitors.

SUMMARY of OBLIGATIONS
Lessors Obigations Deliver the thing which is the object of the contract in a condition fit for the use intended Make on the thing all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary Maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract. Lessees Obligations Pay the price of the lease according to the terms stipulated Use the thing leased as a diligent father of a family, devoting it to the use stipulated, and in the absence of stipulation according to the nature of the thing leased and custom of the place. Pay for the expenses for the deed of lease.

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3. Right of LESSEE to suspend payment of rentals


Article 1658, Civil Code. The lessee may suspend the payment of the rent in case the lessor fails to make the necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the property leased.

4. Right to ask for RESCISSION


Article 1659, Civil Code. If the lessor or the lessee should not comply with the obligations set forth in Articles 1654 and 1657, the aggrieved party may ask for the rescission of the contract and indemnification for damages, or only the latter, allowing the contract to remain in force. Article 1660, Civil Code. If a dwelling place or any other building intended for human habitation is in such a condition that its use brings imminent and serious danger to life or health, the lessee may terminate the lease at once by notifying the lessor, even if at the time the contract was perfected the former knew of the dangerous condition or waived the right to rescind the lease on account of this condition.

5. LESSOR not obliged to answer for mere rd act of trespass by a 3 person


Article 1664, Civil Code. The lessor is not obliged to answer for a mere act of trespass which a third person may cause on the use of the thing leased; but the lessee shall have a direct action against the intruder.

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Chapter XII. LEASE daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. Article 1675, Civil Code. Except in cases stated in Article 1673, the lessee shall have a right to make use of the periods established in Articles 1682 and 1687.

H. GROUNDS for EJECTMENT of LESSEE by LESSOR


Article 1673 The lessor may judicially eject the lessee for any of the following causes: (1) When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired; (2) Lack of payment of the price stipulated; (3) Violation of any of the conditions agreed upon in the contract; (4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof. The ejectment of tenants of agricultural lands is governed by special laws

K. RIGHT of PURCHASER of LEASED LAND


Article 1676, Civil Code. The purchaser of a piece of land which is under a lease that is not recorded in the Registry of Property may terminate the lease, save when there is a stipulation to the contrary in the contract of sale, or when the purchaser knows of the existence of the lease. If the buyer makes use of this right, the lessee may demand that he be allowed to gather the fruits of the harvest which corresponds to the current agricultural year and that the vendor indemnify him for damages suffered. If the sale is fictitious, for the purpose of extinguishing the lease, the supposed vendee cannot make use of the right granted in the first paragraph of this article. The sale is presumed to be fictitious if at the time the supposed vendee demands the termination of the lease, the sale is not recorded in the Registry of Property. Article 1677, Civil Code. The purchaser in a sale with the right of redemption cannot make use of the power to eject the lessee until the end of the period for the redemption.

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I.

RIGHT to ASK for PRELIMINARY MANDATORY INJUNCTION in UNLAWFUL DETAINER CASES

Article 1674, Civil Code. In ejectment cases where an appeal is taken the remedy granted in Article 539, second paragraph, shall also apply, if the higher court is satisfied that the lessee's appeal is frivolous or dilatory, or that the lessor's appeal is prima facie meritorious. The period of ten days referred to in said article shall be counted from the time the appeal is perfected. Article 539 (2), Civil Code. A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.

J. IMPLIED EXTENSION of LEASE


Article 1679, Civil Code. If nothing has been stipulated concerning the place and the time for the payment of the lease, the provisions or Article 1251 shall be observed as regards the place; and with respect to the time, the custom of the place shall be followed. Article 1682, Civil Code. The lease of a piece of rural land, when its duration has not been fixed, is understood to have been for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years have to elapse for the purpose. Article 1687, Civil Code. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid

L. USEFUL IMPROVEMENTS in GF MADE by LESSEE


Article 1678, Civil Code. If the lessee makes, in good faith, useful improvements which are suitable to the use for which the lease is intended, without altering the form or substance of the property leased, the lessor upon the termination of the lease shall pay the lessee one-half of the value of the improvements at that time. Should the lessor refuse to reimburse said amount, the lessee may remove the improvements, even though the principal thing may suffer damage thereby. He shall not, however, cause any more impairment upon the property leased than is necessary. With regard to ornamental expenses, the lessee shall not be entitled to any reimbursement, but he may remove the ornamental objects, provided no damage is caused to the principal thing, and the lessor does not choose to retain them by paying their value at the time the lease is extinguished.

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Chapter XII. LEASE

M. SPECIAL PROVISIONS for LEASES of RURAL LANDS


Article 1680, Civil Code. The lessee shall have no right to a reduction of the rent on account of the sterility of the land leased, or by reason of the loss of fruits due to ordinary fortuitous events; but he shall have such right in case of the loss of more than onehalf of the fruits through extraordinary and unforeseen fortuitous events, save always when there is a specific stipulation to the contrary. Extraordinary fortuitous events are understood to be: fire, war, pestilence, unusual flood, locusts, earthquake, or others which are uncommon, and which the contracting parties could not have reasonably foreseen. Article 1681, Civil Code. Neither does the lessee have any right to a reduction of the rent if the fruits are lost after they have been separated from their stalk, root or trunk. Article 1682, Civil Code. The lease of a piece of rural land, when its duration has not been fixed, is understood to have been for all the time necessary for the gathering of the fruits which the whole estate leased may yield in one year, or which it may yield once, although two or more years have to elapse for the purpose. Article 1683, Civil Code. The outgoing lessee shall allow the incoming lessee or the lessor the use of the premises and other means necessary for the preparatory labor for the following year; and, reciprocally, the incoming lessee or the lessor is under obligation to permit the outgoing lessee to do whatever may be necessary for the gathering or harvesting and utilization of the fruits, all in accordance with the custom of the place. Article 1684, Civil Code. Land tenancy on shares shall be governed by special laws, the stipulations of the parties, the provisions on partnership and by the customs of the place. Article 1685, Civil Code. The tenant on shares cannot be ejected except in cases specified by law.

N. SPECIAL PROVISIONS for LEASES of URBAN LANDS


Article 1686, Civil Code. In default of a special stipulation, the custom of the place shall be observed with regard to the kind of repairs on urban property for which the lessor shall be liable. In case of doubt it is understood that the repairs are chargeable against him. Article 1687, Civil Code. If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even though a monthly rent is paid, and no period for the lease has been set, the courts may fix a longer term for the lease after the lessee has occupied the premises for over one year. If the rent is weekly, the courts may likewise determine a longer period after the lessee has been in possession for over six months. In case of daily rent, the courts may also fix a longer period after the lessee has stayed in the place for over one month. Article 1688, Civil Code. When the lessor of a house, or part thereof, used as a dwelling for a family, or when the lessor of a store, or industrial establishment, also leases the furniture, the lease of the latter shall be deemed to be for the duration of the lease of the premises.

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- end of Property-

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TABLE of CONTENTS

LAND TITLES and DEEDS


Table of Contents
Chapter I: Background, Basic Concepts and General Principles........................................239 I. Definitions and Basic Concepts ........239 II. Nature and stages.............................240 III. Purpose of Registration.....................240 IV. Modes of Acquiring Land Titles.........240 V. Jurisdiction ........................................240 Chapter 2: Torrens Certificate of Title .......241 I. Original Certificate of Title or OCT....241 II. Transfer Certificate of Title................241 III. Patents ..............................................241 Chapter 3: Original Registration.................242 I. Laws Governing Land Registration...242 II. Effect of Registration.........................242 III. Original Registration Proceeding ......242 IV. Attributes of and Limitation In Certificate of Title and Registered Land (FIIC) ...........247 V. Judicial Confirmation of Imperfect or Incomplete Titles............................249 Chapter 4: Cadastral Registration Proceedings..................................................251 I. Steps in Cadastral Registration Proceedings ...............................................252 Chapter 5: Subsequent Registration..........253 I. Two Types of Dealings......................253 II. Necessity and Effects of Registration 253 III. Voluntary vs. Involuntary Dealings..253 IV. Registration of Voluntary Instruments in General ......................................................254 V. Registration of Deeds of Sale and Transfers....................................................255 VI. Mortgages and Leases......................256 VII. Powers of Attorney; Trusts ...........257 VIII. Involuntary Dealings .....................257 Chapter 6: System of Registration of Unregistered Lands ..................................... 261 I. Key Points......................................... 261 II. Procedure ......................................... 261 Chapter 7: Registration of Public Lands ... 262 I. Classification of Land of the Public Domain ...................................................... 262 II. Nature of Title to Public Lands Conveyed .................................................. 262 III. Procedure of Conveying Public Land to a Private Person ........................................ 262 IV. Director of Lands: Quasi-judicial officer 263 V. Modes of Alienating Public Lands:.... 263 VI. Patents ......................................... 263 Chapter 8: Remedies of the Aggrieved Party ....................................................................... 264 Chapter 9: Reconstitution 0f Titles ........... 266 I. Grounds ............................................ 266 II. Petitions for Reconstitution ............... 266 III. Duties of the Land Registration Authority 266 IV. Effects of Fraud, Deceit and Machination in the Reconstitution of Titles 266

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Chapter 1: BACKGROUND, BASIC CONCEPTS and GENERAL PRINCIPLES

* This reviewer is a reproduction of the 2009 edition and was not updated by the 2010 Academics Committee. Kat Aglibot
Lead Writer

LAND TITLES and DEEDS

LAND TITLES and DEEDS TEAM

Chapter I: Background, Basic Concepts and General Principles


This 1 Chapter will give an overview of the definitions of concepts relating to Land, Titles and Deeds. It also includes a short discussion of what exactly is land registration. There are FIVE MAJOR LESSONS in this section: I. Definitions of the Basic Concepts II. Nature of Land Registration III. Purpose of Registration IV. Modes of Acquiring Land Titles V. Jurisdiction
st

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Kristine Bongcaron Patricia Tobias
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Editors-in-Chief

I.

Definitions and Basic Concepts

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DESIGN & LAYOUT


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

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B. LAND TITLE Evidence of the right of the owner or the extent of his interest, and by which means he can maintain control, and as a rule assert right to exclusive possession and enjoyment of property. C. DEED An instrument in writing which any real estate or interest therein is created, alienated, mortgaged or assigned or by which title to any real estate may be affected in law or equity. Necessarily includes:
1. 2. 3. 4. 5. 6. The name of the Grantor The name of the Grantee Words of grant Description of property Signatue of grantor Witnesses

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D. FEE SIMPLE Absolute title; absolute estate in perpetuity. Land is conferred upon a man and his heirs absolutely and without any limitation imposed upon the state. E. REGISTRATION Process whereby the State provides a public record of the title itself upon which a prospective purchaser or someone else interested may rely. It is a means to guarantee the title F. RECORDING It is the process whereby Register of Deeds writes information in his Registry Book. This does not guarantee the title

LAND TITLES and DEEDS

A. THE TORRENS SYSTEM A system for registration of land under which, upon landowners application, the court may, after appropriate proceedings, direct the issuance of a certificate of title. (Blacks Law Dictionary)

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Chapter 1: BACKGROUND, BASIC CONCEPTS and GENERAL PRINCIPLES farmers; not transferable except by hereditary succession.

II. Nature and stages

Land registration is a proceeding in rem.


Roxas vs. Enriquez, (1914): A proceeding in rem, dealing with a tangible res, may be instituted and carried to judgment, without personal service.

V. Jurisdiction
(Asked in 83)
PD 1529 Sec. 2 Nature of registration proceedings; jurisdiction of courts. xxx (Courts of First Instance) Regional Trial Courts shall have exclusive jurisdiction over all applications for original registration of title to lands, including improvements and interests therein, and over all petitions filed after original registration of title, with power to hear and determine all questions arising upon such applications or petitions. xxx BP 129 Sec. 34 Delegated jurisdiction in cadastral and land registration cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots the where the value of which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts. (as amended by R.A. No. 7691)

PD 1529 Sec. 2 Nature of registration proceedings; jurisdiction of courts. Judicial proceedings for the registration of lands throughout the Philippines shall be in rem and shall be based on the generally accepted principles underlying the Torrens system. xxx

3 Stages:
1. 2. 3. Production & delivery of deed by grantor to grantee without registration Deed of conveyance is recorded to bind 3rd persons Registration of title

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III. Purpose of Registration


1. 2. 3. 4. Serve as constructive notice Prevent fraudulent claims Protect interest of strangers to transaction Grey Alba vs. CA, (1910): To establish and certify to the ownership of an absolute and indefeasible title to realty, and to simplify its transfer. 5. SM Prime Holdings vs. Angela Madayag (2009, Nachura): The fundamental purpose of the Land Registration Law (Presidential Decree No. 1529) is to finally settle title to real property in order to preempt any question on the legality of the title except claims that were noted on the certificate itself at the time of registration or those that arose subsequent thereto. Consequently, once the title is registered under the said law, owners can rest secure on their ownership and possession.

IV. Modes of Acquiring Land Titles


1. 2. Title by public grant conveyance of public land by government to a private individual Title by acquisitive prescription open, continuous, exclusive, notorious possession of a property Title by accretion alluvion Title by reclamation filling of submerged land by deliberate act and reclaiming title thereto; government Title by voluntary transfer private grant; voluntary execution of deed of conveyance Title by involuntary alienation no consent from owner of land; forcible acquisition by state (expropriation) Title by descent or devise hereditary succession to the estate of deceased owner Title by emancipation patent or grant for purpose of ameliorating sad plight of tenant-

GENERAL RULE: Land registration proceedings and all petitions after original registration of titles are filed with the RTCs of the province or city where the land or a portion or it lies. SM Prime Holdings vs. Angela Madayag (2009, Nachura):
Presidential Decree (P.D.) No. 1529 eliminated the distinction between the general jurisdiction vested in the RTC and the latters limited jurisdiction when acting merely as a land registration court. Land registration courts, as such, can now hear and decide even controversial and contentious cases, as well as those involving substantial issues. It may, therefore, hear and determine all questions that arise from a petition for registration.

3. 4.

5. 6.

EXCEPTIONS: When the case involves o o lots without controversy or opposition contested lots where the value does not exceed P100,000.00, in which case, the MTCs have jurisdiction.

7. 8.

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Chapter 2: TORRENS CERTIFICATE of TITLE such instrument to be filed with the Register of Deeds of the province or city where the land lies, and to be there registered like other deeds and conveyance, whereupon a certificate of title shall be entered as in other cases of registered land, and an owner's duplicate issued to the grantee. The deed, grant, patent or instrument of conveyance from the Government to the grantee shall not take effect as a conveyance or bind the land but shall operate only as a contract between the Government and the grantee and as evidence of authority to the Register of Deeds to make registration. It is the act of registration that shall be the operative act to affect and convey the land, and in all cases under this Decree, registration shall be made in the office of the Register of Deeds of the province or city where the land lies. The fees for registration shall be paid by the grantee. After due registration and issuance of the certificate of title, such land shall be deemed to be registered land to all intents and purposes under this Decree.

Chapter 2: Torrens Certificate of Title


This 2 Chapter will explore the three major kinds of Torrens certificate of title. These are: I. Original Certificate of Title II. Transfer Certificate of Title III. Patents
nd

I.

Original Certificate of Title or OCT


It is the first certificate of title issued in the name of a registered owner by the Register of Deeds covering a parcel of land which had been registered under the Torrens System, by virtue of judicial or administrative proceedings.

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II. Transfer Certificate of Title


The subsequent certificate of title pursuant to any deed of transfer or conveyance to another person. The Register of Deeds shall make a new certificate of title and given him an owners duplicate certificate. The previous certificate (need not be an OCT) shall be stamped cancelled.

PD 1529 Sec. 43 Transfer Certificate of Title. The subsequent certificate of title that may be issued by the Register of Deeds pursuant to any voluntary or involuntary instrument relating to the same land shall be in like form, entitled "Transfer Certificate of Title", and likewise issued in duplicate. The certificate shall show the number of the next previous certificate covering the same land and also the fact that it was originally registered, giving the record number, the number of the original certificate of title, and the volume and page of the registration book in which the latter is found.

NOTE: Patents only involve public lands which are alienated by the Government, pursuant to the Public Land Act. The patent (even if denominated as d