Balane Civil Law Reviewer

Lecture Notes on Civil Law
Professor Ruben F. Balane

CHANGES IN THE NE CI!IL C"#E
1. Granting of new rights
Example: The Family Code erases the distinction between natural and
spurious children. Now they are lumped together as illegitimate. Thus,
spurious children are given rights.
2. Different solutions to old problems
Example: Change in river course
. Clarification of old provisions
Example: !nder the old Civil Code, there were only void and voidable
contracts. "ith the addition o# unen#orceable and rescissible contracts, the
NCC provides clari#ication
$. Certain subjects omitted
Examples: The dowry has been omitted% certain leases have also been
omitted.
The NCC is #ar #rom per#ect. There are structural de#ects. Certain things
which should be in the preliminary section are #ound elsewhere. &n e'ample o# this is
the vices o# consent. "hy are they #ound in contracts( They are relevant in all
)uridical transactions. &nother e'ample is the topic o# degrees o# relationship. This is
#ound only in succession. *egrees o# relationship are relevant in other boo+s too.
Finally, why is tradition #ound in the law on sales( Tradition is not only important in
sales. ,ather, tradition is a mode o# ac-uiring ownership.
PRELI$INAR% TITLE
I. Effect an& A''lication of Laws
Art. 1. This Act shall be known as the Civil Code of the Philippines.
Art. 2. !aws shall take effect after fifteen da"s following the
completion of their publication in the #fficial Ga$ette% unless it is otherwise
provided. This Code shall take effect one "ear after such publication.
&This code shall take effect ' "ear after such publication.( The .C in the
case o# Lara vs. Del Rosario that the one year should be counted #rom the date o#
actual release and not the date o# issue.
/'ecutive 0rder No. 211 supersedes &rticle 2 regarding the time o# e##ectivity o#
laws.
EXECUTIVE ORDER NO. 200
PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A
NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR
THEIR EFFECTIVITY
LECT(RE N"TES "N CI!IL LA
Professor Ruben F. Balane Pa)e * of +,-
WHEREAS, Article 2 of the Civil Code partly provides that laws shall take effect
after fifteen days following the completion of their p!lication in the "fficial #a$ette, nless
it is otherwise provided % % %&'
WHEREAS, the re(irement that for laws to !e effective only a p!lication thereof
in the "fficial #a$ette will sffice has entailed some pro!lems, a point recogni$ed !y the
Spreme Cort in )a*ada, et al% vs% )vera, et al% +#%R% ,o% -./01, 2ecem!er 2/, 0/3-4 when
it o!served that 5t6here is mch to !e said of the view that the p!lication need not !e
made in the "fficial #a$ette, considering its erratic release and limited readership&'
WHEREAS, it was likewise o!served that 56ndo!tedly, newspapers of general
circlation cold !etter perform the fnction of commnicating the laws to the people as
sch periodicals are more easily availa!le, have a wider readership, and come ot
reglarly&' and
WHEREAS, in view of the foregoing premises Article 2 of the Civil Code shold
accordingly !e amended so the laws to !e effective mst !e p!lished either in the "fficial
#a$ette or in a newspaper of general circlation in the contry'
,"W, )HERE7"RE, 8, C"RA9", C% A:;8,", <resident of the <hilippines, !y virte
of the powers vested in me !y the Constittion, do here!y order=
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O'')c)$ G3e%%e.
2one in the City of >anila, this 03th day of ?ne, in the year of "r @ord, nineteen
hndred and eightyAseven%
&') da"s following( 2 does this mean on the 13
th
or 14
th
day( The law is not
clear.
!nder &rticle 2, publication in the 0##icial 5a6ette was necessary. Now, under /.0.
No. 211, publication may either be in the 0##icial 5a6ette or a newspaper o#
general publication.
&unless otherwise provided( re#ers to when the law shall ta+e e##ect. 7t does
not mean that publication can be dispensed with. 0therwise, that would be a
violation o# due process.
General *ule+ 8aws must be published in either the 0##icial 5a6ette or a
newspaper o# general circulation.
Exception: The law may provide #or another manner o# publication. *i##erent
manner meaning9
1. Not in 0##icial 5a6ette or newspaper o# general circulation% or
Example: ,ead over the television or the radio :provided that the alternative
is reasonable;
2. Change in the period o# e##ectivity
&publication( means ma+ing it +nown% dissemination. 7t doesnt have to be in
writing.
Professor Ruben F. Balane Pa)e . of +,-
&Change period of effectivit"( < the gap between publication and e##ectivity
should be reasonable under the circumstances.
=e#ore publication, cannot apply the law whether penal or civil (Pesigan vs.
Angeles) "hy( >ow can you be bound i# you dont +now the law.
,e-uirement o# publication applies to all laws and is mandatory.
Art. 3. ,gnorance of the law e-cuses no one from compliance
therewith.
Ignorantia legis neminem excusat :7gnorance o# the law e'cuses no one;.
This is a necessary rule #or all civili6ed society. 0therwise it would be impossible
to en#orce the law. 7t is very hard to determine whether or not a person really
does not +now the law. "ithout this rule, there would be anarchy. The law
sacri#ices occasional harshness to prevent universal anarchy.
There are potential methods to mitigate the severity o# &rticle < &rticles 324
:?;, 2133, 1$.
@
7n Kasilag vs. Rodriguez the .C said that the possession o# the antichretic credit
as possession in good #aith since a di##icult -uestion o# law was involved <
antichresis. 7n this case, the parties were not very +nowledgeable o# the law.
&rticle applies only to ignorance o# Ahilippine law. 7t does not apply to #oreign
law. 7n Arivate 7nternational 8aw, #oreign law must be proven even i# it is
applicable. 0therwise, the courts will presume the #oreign law to be the same as
Ahilippine law.
Art. 4. !aws shall have no retroactive effect% unless the contrar" is
provided.

Lex de !uturo "udex de preterito :The law provides #or the #uture, the )udge #or the
past;.
*etroactive law < one which creates a new obligation and imposes a new duty or
attaches a new disability with respect to transactions or considerations already
past.
General *ule+ 8aw must be applied prospectively.
Exceptions:
1. 7# the statute provides #or retroactivity.
Exception to t#e exception:
a. Ex post !acto laws
b. 8aws which impair the obligation o# contracts
2. Aenal laws inso#ar as it #avors the accused who is not a habitual criminal, even
though at the time o# the enactment o# such law #inal sentence has already
been rendered.
. ,emedial laws as long as it does not a##ect or change vested rights.
*
Art. $%& '(. Bista+e upon a doubt#ul or di##icult -uestion o# law may be the basis o# good
#aith.
Art. %)$$. Aayment by reason o# a mista+e in the construction or application o# a
doubt#ul or di##icult -uestion o# law may come within the scope o# the preceding article.
Art. )((*. Butual error as to the legal e##ect o# an agreement when the real purpose o#
the parties is #rustrated, may vitiate consent.
Professor Ruben F. Balane Pa)e + of +,-
$. "hen the law creates new substantive rights unless vested rights are
impaired.
3. Curative laws :the purpose is to cure de#ects or imper#ections in )udicial or
administrative proceedings;
4. 7nterpretative laws
C. 8aws which are o# emergency nature or are authori6ed by police power
(+antos vs. Alvarez% P,- vs. .!!ice o! t#e President)
Art. 5. Acts e-ecuted against the provisions of mandator" or
prohibitor" laws shall be void% e-cept when the law itself authori$es their
validit".
& mandatory law is one which prescribes some element as a re-uirement :i.e.,
wills must be written < &rticle D1$
% #orm o# donations < &rticle C$E
;
& prohibitory law is one which #orbids something :i.e., )oint wills < &rticle D1D
;
General *ule+ &cts which are contrary to mandatory or prohibited laws are void.
Exceptions:
1. "hen the law itsel# authori6ed its validity :i.e. lotto, sweepsta+es;
2. "hen the law ma+es the act only voidable and not void :i.e. i# consent is
vitiated, the contract is voidable and not void;
. "hen the law ma+es the act valid but punishes the violator :i.e. i# the
marriage is celebrated by someone without legal authority but the parties are
in good #aith, the marriage is valid but the person who married the parties is
liable;
4. "hen the law ma+es the act void but recogni6es legal e##ects #lowing
there#rom :i.e. &rticles 1$12 F 1$1
;
_
Art. /0*. /very will must be in writing and e'ecuted in a language or dialect +nown to the
testator.
_
Art. 1*2. 7n order that the donation o# an immovable may be valid, it must be made in a
public document, speci#ying therein the property donated and the value o# the charges which
the donee must satis#y.
The acceptance may be made in the same deed o# donation or in a separate public
document, but it shall not ta+e e##ect unless it is done during the li#etime o# the donor.
7# the acceptance is made in a separate instrument, the donor shall be noti#ied thereo#
in an authentic #orm, and this step shall be noted in both instruments.
_
Art. /)/. Two or more persons cannot ma+e a will )ointly, or in the same instrument, either
#or their reciprocal bene#it or #or the bene#it o# a third person.
_
Art. )*)%. 7# the act in which the unlaw#ul or #orbidden cause consists does not constitute a
criminal o##ense, the #ollowing rules shall be observed9
:1; "hen the #ault is on the part o# both contracting parties, neither may recover what he
has given by virtue o# the contract, or demand the per#ormance o# the otherGs
underta+ing%
:2; "hen only one o# the contracting parties is at #ault, he cannot recover what he has
given by reason o# the contract, or as+ #or the #ul#illment o# what has been promised
him. The other, who is not at #ault, may demand the return o# what he has given
without any obligation to comply his promise.
Art. )*)(. 7nterest paid in e'cess o# the interest allowed by the usury laws may be
recovered by the debtor, with interest thereon #rom the date o# the payment.
Professor Ruben F. Balane Pa)e / of +,-
Art. 6. *ights ma" be waived% unless the waiver is contrar" to law%
public order% public polic"% morals% or good customs% or prejudicial to a third
person with a right recogni$ed b" law.
"hat one can waive are rights and not obligations. Example a creditor can waive
the loan but the debtor may not.
There is no #orm re-uired #or a waiver since a waiver is optional. Hou can waive
by mere inaction, re#using to collect a debt #or e'ample is a #orm o# waiver.
,e-uisites o# a valid waiver (3errera vs. -oromeo)
1. /'istence o# a right
2. Inowledge o# the e'istence o# the right
. &n intention to relin-uish the right :implied in this is the capacity to dispose o#
the right;
General *ule+ ,ights can be waived.
Exceptions:
1. 7# waiver is contrary to law, public order, public policy, morals or good customs
2. 7# the waiver would be pre)udicial to a
rd
party with a right recogni6ed by law.
:e.g. 7# & owes = A11B, = cant waive the loan i# = owes C and = has no other
assets.;
Examples o! 4aivers 4#ic# are pro#i5ited:
1. ,epudiation o# #uture inheritance
2. "aiver o# the protection o# pactum commissorium
. "aiver o# #uture support
$. "aiver o# employment bene#its in advance
3. "aiver o# minimum wage
4. "aiver o# the right to revo+e a will
Art. 7. !aws are repealed onl" b" subse.uent ones% and their violation
or non/observance shall not be e-cused b" disuse% or custom or practice to
the contrar".
0hen the courts declared a law to be inconsistent with the
Constitution% the former shall be void and the latter shall govern.
Administrative or e-ecutive acts% orders and regulations shall be valid
onl" when the" are not contrar" to the laws or the Constitution.
&rticle C is obvious because time moves #orward.
0nly subse-uent laws can repeal prior laws either through9
1. & repealing clause
2. 7ncompatibility o# the subse-uent and prior laws
The violation o# a law is not )usti#ied even i#9
1. No one #ollows the law :i.e. nonpayment o# ta'es;
2. There is a custom to the contrary
The 2
nd
par. o# &rticle C is )udicial review in statutory #orm.
Professor Ruben F. Balane Pa)e , of +,-
Art. 8. 1udicial decisions appl"ing or interpreting the laws or the
Constitution shall form a part of the legal s"stem of the Philippines.
This is a new provision ta+en #rom common law. !nder the civil law tradition, the
court merely applies the law. >owever since the Ahilippine legal system is a
combination o# civil law and common law, courts apply statutes as well as resort
to the doctrine o# precedent.
Art. 9. 2o judge or court shall decline to render judgment b" reason of
the silence% obscurit" or insufficienc" of the laws.
Art. 10. ,n case of doubt in the interpretation or application of laws% it
is presumed that the lawmaking bod" intended right and justice to prevail.
"hat i# the law is silent( The court should render a decision based on )ustice as
stated in &rticle 11.
Art. 11. Customs which are contrar" to law% public order or public
polic" shall not be countenanced.
"hat i# customs are not contrary to law( The custom would be countenanced.
>owever, this does not mean that the custom would have obligatory #orce.
Art. 12. A custom must be proved as a fact% according to the rules of
evidence.
The law doesnt speci#y the cases when custom is relevant in litigation. =ut in
case custom is relevant, it should be proven.
Commentators say that custom is important in cases involving negligence. For
e'ample, i# a 6alesa in Banila is by custom supposed to have rattan bas+ets to
prevent people #rom slipping, i# a person slips because there is no rattan bas+et,
then he can sue #or negligence.
Art. 13. 0hen the laws speak of "ears% months% da"s or nights% it shall
be understood that "ears are of three hundred si-t"/five da"s each3 months%
of thirt" da"s3 da"s% of twent"/four hours3 and nights from sunset to sunrise.
,f months are designated b" their name% the" shall be computed b" the
number of da"s which the" respectivel" have.
,n computing a period% the first da" shall be e-cluded% and the last da"
included.
&rticle 1 has been superseded by /'ecutive 0rder No. 2E2 :the ,evised
&dministrative Code o# 1EDC; < =oo+ 1, J1.
Sec. 61. @egal <eriods% < =Ye(= "#$$ 2e 1*+e("%--+ %- 2e %!e$5e c$e*+( /-*%#">
=/-*%#= -' %#)(%, +,"4 1*$e"" )% (e'e(" %- "0ec)')c c$e*+( /-*%# )* !#)c# c"e )% "#$$ 2e
c-/01%e+ cc-(+)*. %- %#e *1/2e( -' +," %#e "0ec)')c /-*%# c-*%)*"> =+,4= %- +, -'
%!e*%,<'-1( #-1("> *+ =*).#%4= '(-/ "1*"e% %- "1*()"e.
!nder /.0. No. 2E2, a year is now e-uivalent to 12 calendar months and not 43
days. !nder &rticle 1 leap years are not considered. For e'amples, in order to
ma+e a will, one has to be 1D years old. =ut i# you use &rticle 1, one loses $ to 3
days i# you dont count the leap years. /.0. No. 2E2 is better than &rticle 1 since
it is more realistic.
Professor Ruben F. Balane Pa)e 0 of +,-
There should have been a de#inition o# hours. That de#inition is relevant #or labor
law. &ccording to Aro#essor =alane, an hour should be de#ined as 1K2$ o# a
calendar day. 7# you use the de#inition that an hour is e-ual to 41 minutes, then
we would have to de#ine minutes, then seconds, and so on. 7t would be too
scienti#ic.
II. Conflicts of Law Provisions
Art. 14. Penal laws and those of public securit" and safet" shall be
obligator" upon all who live or sojourn in the Philippine territor"% subject to
the principles of public international law and to treat" stipulations.
Two principles9
'. Territorialit"
General *ule9 Criminal laws apply only in Ahilippine territory.
Exception: &rticle 2, ,evised Aenal Code.
4. Generalit"
General Rule: Criminal laws apply to everyone in the territory :citi6ens and
aliens;
Exceptions: 7n these instances, all the Ahilippines can do is e'pel them
a. Treaty stipulations which e'empt some persons within the )urisdiction o#
Ahilippine courts :e.g. =ases &greement;
b. >eads o# .tate and &mbassadors
:,ote: Consuls are sub)ect to the )urisdiction o# our criminal courts.;
Art. 15. !aws relating to famil" rights and duties% or to the status%
condition and legal capacit" of persons are binding upon citi$ens of the
Philippines% even though living abroad.
&rt. 2. Application o! its provisions. L /'cept as provided in the treaties and laws o#
pre#erential application, the provisions o# this Code shall be en#orced not only within the
Ahilippine &rchipelago, including its atmosphere, its interior waters and maritime 6one, but also
outside o# its )urisdiction, against those who9
1. .hould commit an o##ense while on a Ahilippine ship or airship%
2. .hould #orge or counter#eit any coin or currency note o# the Ahilippine 7slands or
obligations and securities issued by the 5overnment o# the Ahilippine 7slands%
. .hould be liable #or acts connected with the introduction into these islands o# the
obligations and securities mentioned in the presiding number%
$. "hile being public o##icers or employees, should commit an o##ense in the e'ercise o#
their #unctions% or
3. .hould commit any o# the crimes against national security and the law o# nations,
de#ined in Title 0ne o# =oo+ Two o# this Code.
Theories on Aersonal 8aw9
1. Doiciliar! t"eor! 2 the personal laws o# a person are determined by his
domicile
2. #ationalit! t"eor! 2 the nationality or citi6enship determines the personal
laws o# the individual
!nder &rticle 13, the Ahilippines #ollows the nationality theory. Family rights and
duties, status and legal capacity o# Filipinos are governed by Ahilippine law.
General *ule+ !nder &rticle 24 o# the Family Code, all marriages solemni6ed
outside the Ahilippines in accordance with the laws in #orce in the country where
they were solemni6ed and valid there as such, is also valid in the Ahilippines.
Exception: 7# the marriage is void under Ahilippine law, then the marriage is void
even i# it is valid in the country where the marriage was solemni6ed .
Exception to t"e exception:
1. &rticle 3, ?2, Family Code
Art. 35. The following marriages shall be void from the
beginning+
546 Those solemni$ed b" an" person not legall" authori$ed to perform
marriages unless such marriages were contracted with either or
both parties believing in good faith that the solemni$ing officer
had the legal authorit" to do so3
2. &rticle 3, ?, Family Code
beginning+
576 Those solemni$ed without license% e-cept those covered the
preceding Chapter3
/ven i# the #oreign marriage did not comply with either ?s 2 and o# &rticle
3, Ahilippine law will recogni6e the marriage as valid as long as it is valid under
#oreign law.
Art. 16$ %1. *eal propert" as well as personal propert" is subject to
the law of the countr" where it is stipulated.
Lex situs or lex rei sitae governs real or personal property :property is sub)ect to
the laws o# the country in which it is located;.
7n 7a8ag vs. -enguet consolidated, the .C said that Ahilippine law shall govern in
cases involving shares o# stoc+ o# a Ahilippine corporation even i# the owner is in
the !..
Art. 16$ %2. 8owever% intestate and testamentar" successions% both
with respect to the order of succession and to the amount of successional
rights and to the intrinsic validit" of testamentar" provisions% shall be
regulated b" the national law of the person whose succession is under
consideration% whatever ma" be the nature of the propert" and regardless of
the countr" wherein said propert" ma" be found.
This is merely an e'tension o# the nationality theory in &rticle 13.
The national law o# the decedent regardless o# the location o# the property shall
govern. Thus, the national law o# the decedent shall determine who will succeed.
7n 9iciano vs. -rimo, the .C said that the will o# a #oreigner containing the
condition that the law o# the Ahilippines should govern regarding the distribution o#
the properties is invalid.
7n Aznar vs. :arcia, what was involved was the renvoi doctrine. 7n this case, the
decedent was a citi6en o# Cali#ornia who resided in the Ahilippine. The problem
was that under Ahilippine law, the national law o# the decedent shall govern. 0n
the other hand, under Cali#ornia law, the law o# the state where the decedent has
his domicile shall govern. The .C accepted the re#erral by Cali#ornia law and
applied Ahilippine law :single renvoi;.
&ro'le: "hat i# the decedent is a Filipino domiciled in a #oreign country which
#ollows the domiciliary theory(
&ccording to Aro#essor =alane, one way to resolve the situation is this <
Ahilippine law should govern with respect to properties in Ahilippine while the law
o# the domicile should govern with respect to properties located in the state o#
domicile.
Art. 17. The forms and solemnities of contracts% wills% and other public
instruments shall be governed b" the laws of the countr" in which the" are
e-ecuted.
0hen the acts referred to are e-ecuted before the diplomatic or
consular officials of the *epublic of the Philippines in a foreign countr"% the
solemnities established b" Philippine laws shall be observed in their
e-ecution.
Prohibitive laws concerning persons% their acts or propert"% and those
which have for their object public order% public polic" and good customs shall
not be rendered ineffective b" laws or judgments promulgated% or b"
determinations or conventions agreed upon in a foreign countr".
Lex loci cele5rationis :#ormal re-uirements o# contracts, wills, and other public
instruments are governed by the country in which they are e'ecuted;
There is no con#lict between the 1
st
? o# &rticle 14 and the 1
st
? o# &rticle 1C since
they tal+ o# 2 di##erent things.
Thus, the #ormal re-uirements o# a contract involving real property in the
Ahilippines must #ollow the #ormal re-uirements o# the place where the contract
was entered into. >owever, i# what is involved is not the #ormal re-uirements,
then the law o# the place where the properties :whether real or personal; are
located shall govern.
Art. 18. ,n matters which are governed b" the Code of Commerce and
special laws% their deficienc" shall be supplied b" the provisions of this Code.
III. Hu3an Relations
Art. 19. 9ver" person must% in the e-ercise of his rights and in the
performance of his duties% act with justice% give ever"one his due% and
observe honest" and good faith.
Art. 20. 9ver" person who% contrar" to law% willfull" or negligentl"
causes damage to another% shall indemnif" the latter for the same.
Professor Ruben F. Balane Pa)e - of +,-
Art. 21. An" person who willfull" causes loss or injur" to another in
manner that is contrar" to morals% good customs or public polic" shall
compensate the latter for the damage.
Art. 22. 9ver" person who through an act of performance b" another%
or an" other means% ac.uires or comes into possession of something at the
e-pense of the latter without just or legal ground% shall return the same to
him.
Art. 23. 9ven when an act or event causing damage to another:s
propert" was not due to the fault or negligence of the defendant% the latter
shall be liable for indemnit" if through the act or event he was benefited.
Art. 24. ,n all contractual% propert" or other relations% when one of
the parties is at a disadvantage on account of his moral dependence%
ignorance% indigence% mental weakness% tender age or other handicap% the
courts must be vigilant for his protection.
Art. 25. Thoughtless e-travagance in e-penses for pleasure or displa"
during a period of acute public want or emergenc" ma" be stopped b" order
of the courts at the instance of an" government or private charitable
institution.
Art. 26. 9ver" person shall respect the dignit"% personalit"% privac"
and peace of mind of his neighbors and other persons. The following and
similar acts% though the" ma" not constitute a criminal offense% shall produce
a cause of action for damages% prevention and other relief+
5'6 Pr"ing into the privac" of another:s residence+
546 ;eddling with or disturbing the private life or famil" relations of
another3
576 ,ntriguing to cause another to be alienated from his friends3
5<6 =e-ing or humiliating another on account of his religious beliefs%
lowl" station in life% place of birth% ph"sical defect% or other personal
condition.
Art. 27. An" person suffering material or moral loss because a public
servant or emplo"ee refuses or neglects% without just cause% to perform his
official dut" ma" file an action for damages and other relief against he latter%
without prejudice to an" disciplinar" administrative action that ma" be
taken.
Art. 28. >nfair competition in agricultural% commercial or industrial
enterprises or in labor through the use of force% intimidation% deceit%
machination or an" other unjust% oppressive or highhanded method shall
give rise to a right of action b" the person who thereb" suffers damage.
Art. 29. 0hen the accused in a criminal prosecution is ac.uitted on
the ground that his guilt has not been proved be"ond reasonable doubt% a
civil action for damages for the same act or omission ma" be instituted. ?uch
action re.uires onl" a preponderance of evidence. >pon motion of the
defendant% the court ma" re.uire the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
,f in a criminal case the judgment of ac.uittal is based upon
reasonable doubt% the court shall so declare. ,n the absence of an"
Professor Ruben F. Balane Pa)e *4 of +,-
declaration to that effect% it ma" be inferred from the te-t of the decision
whether or not the ac.uittal is due to that ground.
Art. 30. 0hen a separate civil action is brought to demand civil
liabilit" arising from a criminal offense% and no criminal proceedings are
instituted during the pendenc" of the civil case% a preponderance of evidence
shall likewise be sufficient to prove the act complained of.
Art. 31. 0hen the civil action is based on an obligation not arising
from the act or omission complained of as a felon"% such civil action ma"
proceed independentl" of the criminal proceedings and regardless of the
result of the latter.
Art. 32. An" public officer or emplo"ee% or an" private individual% who
directl" or indirectl" obstructs% defeats% violates or in an" manner impedes or
impairs an" of the following rights and liberties of another person shall be
liable to the latter for damages+
5'6 @reedom or religion3
546 @reedom of speech3
576 @reedom to write for the press or to maintain a periodical
publication3
5<6 @reedom from arbitrar" or illegal detention3
5)6 @reedom of suffrage3
5A6 The right against deprivation of propert" without due process of law3
5B6 The right to a just compensation when private propert" is taken for
public use3
5C6 The right to the e.ual protection of the laws3
5D6 The right to be secure in one:s person% house% papers% and effects
against unreasonable searches and sei$ures3
5'E6 The libert" of abode and of changing the same3
5''6 The privac" of communication and correspondence3
5'46 The right to become a member of associations or societies for
purposes not contrar" to law3
5'76 The right to take part in a peaceable assembl" to petition the
Government for redress of grievances3
5'<6 The right to be a free from involuntar" servitude in an" form3
5')6 The right of the accused against e-cessive bail3
5'A6 The right of the accused to be heard b" himself and counsel% to be
informed of the nature and cause of the accusation against him% to
have a speed" and public trial% to meet the witnesses face to face%
and to have compulsor" process to secure the attendance of
witness in his behalf3
5'B6 @reedom from being compelled to be a witness against one:s self%
or from being forced to confess guilt% or from being induced b" a
promise of immunit" or reward to make such confession% e-cept
when the person confessing becomes a ?tate witness3
5'C6 @reedom from e-cessive fines% or cruel and unusual punishment%
unless the same is imposed or inflicted in accordance with a statute
which has not been judiciall" declared unconstitutional3 and
Professor Ruben F. Balane Pa)e ** of +,-
5'D6 @reedom of access to the courts.
,n an" of the cases referred to in this article% whether or not the
defendant:s act or omission constitutes a criminal offense% the aggrieved
part" has a right to commence an entirel" separate and distinct civil action
for damages% and for other relief. ?uch civil action shall proceed
independentl" of an" criminal prosecution 5if the latter be instituted6% and
mat be proved b" a preponderance of evidence.
The indemnit" shall include moral damages. 9-emplar" damages ma"
also be adjudicated.
The responsibilit" herein set forth is not demandable from a judge
unless his act or omission constitutes a violation of the Penal Code or other
penal statute.
Art. 33. ,n cases of defamation% fraud% and ph"sical injuries a civil
action for damages% entirel" separate and distinct from the criminal action%
ma" be brought b" the injured part". ?uch civil action shall proceed
independentl" of the criminal prosecution% and shall re.uire onl" a
preponderance of evidence.
Art. 34. 0hen a member of a cit" or municipal police force refuses or
fails to render aid or protection to an" person in case of danger to life or
propert"% such peace officer shall be primaril" liable for damages% and the
cit" or municipalit" shall be subsidiaril" responsible therefor. The civil action
herein recogni$ed shall be independent of an" criminal proceedings% and a
preponderance of evidence shall suffice to support such action.
Art. 35. 0hen a person% claiming to be injured b" a criminal offense%
charges another with the same% for which no independent civil action is
granted in this Code or an" special law% but the justice of the peace finds no
reasonable grounds to believe that a crime has been committed% or the
prosecuting attorne" refuses or fails to institute criminal proceedings% the
complaint ma" bring a civil action for damages against the alleged offender.
?uch civil action ma" be supported b" a preponderance of evidence. >pon the
defendant:s motion% the court ma" re.uire the plaintiff to file a bond to
indemnif" the defendant in case the complaint should be found to be
malicious.
,f during the pendenc" of the civil action% an information should be
presented b" the prosecuting attorne"% the civil action shall be suspended
until the termination of the criminal proceedings.
Art. 36. Pre/judicial .uestions% which must be decided before an"
criminal prosecution ma" be instituted or ma" proceed% shall be governed b"
rules of court which the ?upreme Court shall promulgate and which shall not
be in conflict with the provisions of this Code.
Professor Ruben F. Balane Pa)e *. of +,-
PERS"NS
Person
&ny physical or )uridical being susceptible o #rights and obligations, or o# being the
sub)ect o# legal relations
Persons (s. Things
& person is the su5"ect o# legal relations
& things is the o5"ect o# legal relations
Art. 37. 1uridical capacit"% which is the fitness to be the subject of
legal relations% is inherent in ever" natural person and is lost onl" through
death. Capacit" to act% which is the power to do acts with legal effect% is
ac.uired and ma" be lost.
2 component elements o# capacity9
1. 1uridical capacit"
There are no degrees o# )uridical capacity.
Muridical capacity is the same in every person. No one has more )uridical
capacity than others. 7t is inherent in natural persons. 0n the other hand,
it arises in arti#icial persons when such arti#icial persons are created.
2. Capacit" to act
This is best presented by a spectrum9
Nobody has 111N capacity to act. The law imposes restrictions on
capacity to act. &s long as one has contractual capacity :a.6.a. #ull civil
capacity; one is near 111N capacity to act. OFull civil capacityP is not
really 111N but close to it. "ith contractual capacity, one is generally able
to per#orm contracts and dispose o# property.
Nobody has 1N capacity to act. 7n#ants are close to 1N but still have
capacity to act. For e'ample, even #etus has the right to succeed and also
have the right to the integrity o# body. &liens cannot own colleges or
broadcast media.
Art. 38. ;inorit"% insanit" or imbecilit"% the state of being a deaf/
mute% prodigalit" and civil interdiction are mere restrictions on capacit" to
act% and do not e-empt the incapacitated person from certain obligations% as
when the latter arise from his acts or from propert" relations% such as
easements.
Art. 39. The following circumstances% among others% modif" or limit
capacit" to act+ age% insanit"% imbecilit"% the state of being a deaf/mute%
penalt"% prodigalit"% famil" relations% alienage% absence% insolvenc" and
trusteeship. The conse.uences of these circumstances are governed in this
Code% other codes% the *ules of Court% and in special laws. Capacit" to act is
not limited on account of religious belief or political opinion.
A married woman% twent"/one "ears of age or over% is .ualified for all
acts of civil life% e-cept in cases specified b" law.
Professor Ruben F. Balane Pa)e *+ of +,-
EF ,nfant Alien ;ost People 'EEF
&rticles D and E are really the same thing. They are redundant.
,nsolvenc" < certain obligations cannot be per#ormed :i.e. one cannot pay o##
debts in #avor o# one creditor while e'cluding other creditors;
Trusteeship 2 one is placed in guardianship.
Prodigalit" 2 it is not by itsel# a restriction. 7t is a ground to be placed in
guardianship
These restrictions dont e'empt incapacitated persons #rom certain obligations.
!nder &rticle 1134, there are 3 sources o# obligations9
1. 8aw
2. Contract
. *elict
$. Quasi2delict
3. Quasi2contract
Thus, &rticles D and E prevent incapacitated persons #rom incurring contractual
obligations only. Thus, even though an insane person cannot be thrown in )ail #or
a criminal act, the insane person is still civilly liable :delict;. &n incapacitated
person must still pay income ta' i# income is earned.
&lthough &rticles D and E dont mention it, incapacitated persons may ac-uire
rights. For e'ample, they have the right to accept donations or to succeed.
The enumeration in &rticles D and E is not e'clusive. There are others spread
throughout the code. :i.e. a lawyer cannot buy property in litigation < &rticle
1$E1 :3;
;
&rticle E, last ? has been amended by ,.&. No. 4D1E. 21 years is no longer the
age o# ma)ority but 1D.
&rticle E, last ? < "hat are the cases speci#ied by law(
I. Natural Persons
Art. 40. Girth determines personalit"3 but the conceived child shall be
considered born for all purposes that are favorable to it% provided it be born
later with the conditions specified in the following article.
Art. 41. @or civil purposes% the foetus is considered born if it is alive
at the time it is completel" delivered from the mother:s womb. 8owever% if
the foetus had an intra/uterine life of less than seven months% it is not
deemed born if it dies within twent"/four hours after its complete deliver"
from the maternal womb.
`
Art. )*2). The #ollowing persons cannot ac-uire by purchase, even at a public or )udicial
auction, either in person or through the mediation o# another9
:3; Mustices, )udges, prosecuting attorneys, cler+s o# superior and in#erior courts, and
other o##icers and employees connected with the administration o# )ustice, the
property and rights in litigation or levied upon an e'ecution be#ore the court within
whose )urisdiction or territory they e'ercise their respective #unctions% this prohibition
includes the act o# ac-uiring by assignment and shall apply to lawyers, with respect
to the property and rights which may be the ob)ect o# any litigation in which they may
ta+e part by virtue o# their pro#ession.
Professor Ruben F. Balane Pa)e */ of +,-
Arinciples9
1. For personality to be ac-uired one must be born
2. 0nce birth occurs, personality #or #avorable purposes
retroacts to the moment o# conception
To be born means to be alive a#ter the #etus is completely separated #rom the
mothers womb by cutting o## the umbilical cord.
General *ule+ To be born, it is enough that the #etus is alive when the umbilical
cord is cut
Exception: 7# the intra2uterine li#e is less than C months, it must live #or at least
2$ hours, be#ore it is considered born :There is no distinction as to how the child
dies < whether natural, accidental, etc.;
&ccording to Aro#essor =alane, modern medicine cannot as o# yet determine i# the
intra2uterine li#e is C months or less in terms o# number o# days. Bodern medicine
cannot determine the e'act time when #ertili6ation too+ place. Bodern medicine
estimates the #etus age in wee+s.
&n e'ample o# a case where upon birth occurs personality retroacts to the
moment o# conception is in case o# succession since it is #avorable to the child. 0n
the other hand, i# the purpose is #or paying ta'es, personality does not retroact
since it is un#avorable to the child.
7n :eluz vs. ;A, the .C said that the #ather could not #ile the action #or damages.
The #etus never ac-uired personality because it was never born < it was not alive
at the time it was delivered #rom the mothers womb. .ince the #etus did not
ac-uire any personality, it ac-uired no rights which could be transmitted to the
#ather. Thus, the #ather could not sue in a representative capacity. The #ather
could have sued in his personal capacity had the #ather su##ered anguish which he
did not.
Art. 42. Civil personalit" is e-tinguished b" death.
The effect of death upon the rights and obligations of the deceased is
determined b" law% b" contract and b" will.
This article deals with the e'tinguishment o# civil personality
*eath is not de#ined in the Civil Code. Not even doctors +now precisely when
death occurs. There are many theories.
The #act o# death is important because it a##ects civil personality and legal
relations. The main e##ect o# death is readily seen in succession. *eath is also
relevant to labor law and insurance.
Art. 43. ,f there is a doubt% as between two or more persons who are
called to succeed each other% as to which of them died first% whoever alleges
the death of one prior to the other% shall prove the same3 in the absence
of proof% it is presumed that the" died at the same time and there shall be no
transmission of rights from one to the other.
Professor Ruben F. Balane Pa)e *, of +,-
RULE 1614 RULES OF COURT
Sec. 6. 2ispta!le presmptions% ? T#e '-$$-!)*. 0(e"1/0%)-*" (e "%)"'c%-(, )'
1*c-*%(+)c%e+4 21% /, 2e c-*%(+)c%e+ *+ -5e(c-/e 2, -%#e( e5)+e*ce@
ABBC T#% e;ce0% '-( 01(0-"e" -' "1cce"")-*4 !#e* %!- 0e("-*" 0e()"# )* %#e "/e
c$/)%,4 "1c# " !(ec&4 2%%$e4 -( c-*'$.(%)-*4 *+ )% )" *-% "#-!* !#- +)e+
')("%4 *+ %#e(e (e *- 0(%)c1$( c)(c1/"%*ce" '(-/ !#)c# )% c* 2e )*'e((e+4 %#e
"1(5)5-("#)0 )" +e%e(/)*e+ '(-/ %#e 0(-22)$)%)e" (e"1$%)*. '(-/ %#e "%(e*.%# *+
.e -' %#e "e;e"4 cc-(+)*. %- %#e '-$$-!)*. (1$e"@
1. I' 2-%# !e(e 1*+e( %#e .e -' ')'%ee* ,e("4 %#e -$+e( )" +ee/e+ %- #5e
"1(5)5e+>
2. I' 2-%# !e(e 2-5e %#e .e -' ");%,4 %#e ,-1*.e( )" +ee/e+ %- #5e "1(5)5e+>
6. I' -*e )" 1*+e( ')'%ee* *+ %#e -%#e( 2-5e ");%,4 %#e '-(/e( )" +ee/e+ %- #5e
"1(5)5e+>
D. I' 2-%# 2e -5e( ')'%ee* *+ 1*+e( ");%,4 *+ %#e "e; 2e +)''e(e*%4 %#e /$e )"
+ee/e+ %- #5e "1(5)5e+> )' %#e "e; 2e %#e "/e4 %#e -$+e(>
E. I' -*e 2e 1*+e( ')'%ee* -( -5e( ");%,4 *+ %#e -%#e( 2e%!ee* %#-"e .e"4 %#e
$%%e( )" +ee/e+ %- #5e "1(5)5e+.
This is a presumption regarding simultaneous death and not a rule on
survivorship. 0n the other hand, the ,ules provide #or a presumption o#
survivorship based on certain criteria.
The ,ules o# Court shall apply where9
1. The issue does not involve succession but something else :i.e., insurance,
suspensive conditions;% and
2. The persons perish in the same calamity
&rticle $ shall apply where9
1. The case involves succession% and
2. The persons do not perish in the same calamity.
7# the conditions in the ,ules o# Court or &rticle $ do not concur, do not apply
either.
&ro'le: "hat i# succession is involved and the persons perish in the same
calamity(
Bost commentators say &rticle $ will prevail. This is the only case o# con#lict
between the ,ules o# Court and &rticle $.
7n <oa=uin vs. ,avarro, &rticle $ was not applied. There was no need to apply
the presumption in &rticle $ since there was evidence to show who died #irst.
II. 5uri&ical Persons
Art. 44. The following are juridical persons+
5'6 The ?tate and its political subdivisions3
546 #ther corporations% institutions and entities for public interest or
purpose% created b" law3 their personalit" begins as soon as the"
have been constituted according to law3
576 Corporations% partnerships and associations for private interest or
purpose to which the law grants a juridical personalit"% separate and
distinct from that of each shareholder% partner or member.
This enumerates the )uridical persons.
& )uridical person is an organic unit resulting #rom a group o# persons or mass or
property to which the state grants or recogni6es personality and capacity to hold
patrimonial rights independent o# those o# component members
The )uridical personality o# political subdivisions and public corporations :i.e.
5.7., ...; commences when the law creating them becomes e##ective.
The )uridical personality o# a private corporation commences upon incorporation
with the ./C.
The )uridical personality o# a partnership commences upon the meeting o# the
minds o# the parties.
&lthough the Catholic Church is not one o# those mentioned in &rticle $$, it is still
considered as a )uridical person in -arlin vs. Ramirez because o# tradition.
Art. 45. 1uridical persons mentioned in 2os. ' and 4 of the preceding
article are governed b" the laws creating or recogni$ing them.
Private corporations are regulated b" laws of general application on
the subject.
Partnerships and associations for private interest or purpose are
governed b" the provisions of this Code concerning partnerships.
1>*,D,CA! P9*?#2 G#=9*29D GH
.tate Constitution :*e#ines its organi6ation and limits its rights vis2
R2vis citi6ens;
Aolitical subdivision Charter
Aublic corporation Charter
Arivate corporation Corporation Code, &rticles o# 7ncorporation and =y28aws
Aartnerships .tipulations o# the parties and suppletorily by the general
provisions on partnership
Art. 46. 1uridical persons ma" ac.uire and possess propert" of all
kinds% as well as incur obligations and bring civil or criminal actions% in
conformit" with the laws and regulations of their organi$ation.
Art. 47. >pon the dissolution of corporations% institutions and other
entities for public interest or purpose mentioned in 2o. 4 of article <<% their
propert" and other assets shall be disposed of in pursuance of law or the
charter creating them. ,f nothing has been specified on this point% the
propert" and other assets shall be applied to similar purposes for the benefit
of the region% province% cit" or municipalit" which during the e-istence of the
institution derived the principal benefits from the same.
*issolution is #ound in detail in the Corporation Code.
III. Citi6ens7i' an& #o3icile
Art. 48. The following are citi$ens of the Philippines+
5'6 Those who were citi$ens of the Philippines at the time of the
adoption of the Constitution of the Philippines3
546 Those born in the Philippines of foreign parents who% before the
adoption of said Constitution% had been elected to public office in the
Philippines3
576 Those whose fathers are citi$ens of the Philippines3
5<6 Those whose mothers are citi$ens of the Philippines and% upon
reaching the age of majorit"% elect Philippine citi$enship3
5)6 Those who are naturali$ed in accordance with law.
This has been superseded by the Constitution.
ARTICLE IV4 PHILIPPINE CONSTITUTION
Section 0% T#e '-$$-!)*. (e c)%)3e*" -' %#e P#)$)00)*e"@
A1C T#-"e !#- (e c)%)3e*" -' %#e P#)$)00)*e" % %#e %)/e -' %#e +-0%)-* -' %#)"
C-*"%)%1%)-*>
A2C T#-"e !#-"e '%#e(" -( /-%#e(" (e c)%)3e*" -' %#e P#)$)00)*e">
A6C T#-"e 2-(* 2e'-(e F*1(, 1G4 1HG64 -' F)$)0)*- /-%#e("4 !#- e$ec% P#)$)00)*e
c)%)3e*"#)0 10-* (ec#)*. %#e .e -' /B-()%,> *+
ADC T#-"e !#- (e *%1($)3e+ )* cc-(+*ce !)%# $!.
Art. 49. 2aturali$ation and the loss and reac.uisition of citi$enship of
the Philippines are governed b" special laws.
Art. 50. @or the e-ercise of civil rights and the fulfillment of civil
obligations% the domicile of natural persons is the place of their habitual
residence.
Art. 51. 0hen the law creating or recogni$ing them% or an" other
provision does not fi- the domicile of juridical persons% the same shall be
understood to be the place where their legal representation is established or
where the" e-ercise their principal functions.
&rticle 31 governs the domicile o# natural persons. &rticle 31 tal+s about the
domicile o# )uridical persons.
,e-uisites o# *omicile :;allego vs. >era;9
1. Ahysical Aresence
2. 7ntent to remain permanently
Iinds o# *omicile
1. *omicile o# 0rigin
*omicile o# parents o# a person at the time he was born.
2. *omicile o# Choice
*omicile chosen by a person, changing his domicile o# origin.
&
rd
re-uisite is necessary < intention not to return to ones domicile as his
permanent place.
3. *omicile by 0peration o# 8aw :i.e. &rticle 4E
, domicile o# minor;
,esidence vs. *omicile
,esidence is not permanent :There is no intent to remain;
*omicile is permanent :There is intent to remain;
&ccording to the .upreme Court in 9arcos vs. ;.9ELE;, the wi#e does not lose
her domicile upon marriage. .he does not necessarily ac-uire her husbands
domicile. !ntil the spouses decide to get a new domicile, the wi#e retains her old
domicile. !nder &rticle 4ED o# the Family Code, the domicile is #i'ed )ointly.
,ules9
1. & man must have a domicile somewhere.
2. & domicile once established remains until a new one is ac-uired.
. & man can only have one domicile at a time.
The #ollowing &rticles in the Civil Code mention domicile9
1. &rticle D21
Art. 821. The following are dis.ualified from being witnesses to
a will+
5'6 An" person not domiciled in the Philippines3
546 Those who have been convicted of falsification of a
document% perjur" or false testimon".
2. &rticle D2E
Art. 829. A revocation done outside the Philippines% b" a
person who does not have his domicile in this countr"% is valid when it
is done according to the law of the place where the will was made% or
according to the law of the place in which the testator had his domicile
at the time3 and if the revocation takes place in this countr"% when it is
in accordance with the provisions of this Code.
. &rticle 1231
Art. 1251. Pa"ment shall be made in the place designated in
the obligation.
There being no e-press stipulation and if the undertaking is to
deliver a determinate thing% the pa"ment shall be made wherever the
thing might be at the moment the obligation was constituted.
,n an" other case the place of pa"ment shall be the domicile of
the debtor.
,f the debtor changes his domicile in bad faith or after he has
incurred in dela"% the additional e-penses shall be borne b" him.
These provisions are without prejudice to venue under the *ules
of Court.
The concept o# domicile is not as important in civil law countries unli+e common
law countries which #ollow the nationality theory.
`
Art. &2. The husband and wi#e shall #i' the #amily domicile. 7n case o# disagreement, the
court shall decide.
Professor Ruben F. Balane Pa)e *- of +,-
I!. Surna3es
.urnames are important #or identi#ication. .urnames identi#y the #amily to which a
person belongs :transmitted #rom parent to child;.
& name is a word or a combination by which a person is +nown or identi#ied
:Repu5lic vs. ?ernandez;
Characteristics o# .urnames
1. &bsolute < intended to protect #rom con#usion
2. 0bligatory
. Fi'ed < cant change at ones leisure
$. 0utside the commerce o# man < cant sell or donate
3. 7mprescriptible 2 even i# one does not use, still your name
,ules
1. &s #ar as the state is concerned, your real name is the one in the Civil ,egistry
:not the baptismal certi#icate since parish records are no longer o##icial;
2. Change o# name can only be done through court proceedings
Art. 376. 2o person can change his name or surname without
judicial authorit".
. >owever, a person can use other names which are authori6ed by C.&. No. 1$2
as amended by ,.&. No. 41D3 :use o# pseudonym;
5uidelines regarding Change o# Name
1. 7n a petition #or change o# name, courts are generally strict. Hou have to show
su##icient cause.
The cases o# ,aldoza vs. Repu5lic and Repu5lic vs. 9arcos illustrate what
are su##icient causes. Repu5lic vs. 3ernandez added an additional ground.
The enumeration is not an e'clusive list o# causes. They are merely the
ones #re-uently cited.
7n Repu5lic vs. ;A, the child wanted to change to the surname o# the
step#athers. The .upreme Court said this is not allowed since it will cause
con#usion as to the childs paternity.
2. 7n a petition #or in)unction or in a criminal case #or violation o# C.&. No. 1$2,
courts are generally liberal #or as long as there is no #raud or bad #aith.
7n Legamia vs. IA;, the .upreme Court allowed the mistress to use her
live2in partners name since everyone +new that she was the mistress < no
con#usion.
7n 7olentino vs. ;A, the .upreme Court allowed the #ormer Brs. Tolentino
to +eep on using the surname o# Tolentino since the same was not being
used #or #raudulent purposes.
. 7n case o# adoption where the woman adopts alone, it is the maiden name that
should be given the child :<o#nston vs. Repu5lic;
Art. 370. A married woman ma" use+
5'6 8er maiden first name and surname and add her husband:s surname%
or
Professor Ruben F. Balane Pa)e .4 of +,-
546 8er maiden first name and her husband:s surname or
576 8er husband:s full name% but prefi-ing a word indicating that she is
his wife% such as I;rs.I
& married woman may use only her maiden name and surname. .he has an
option and not a duty to use the surname o# her husband as provided #or in &rt.
C1. This is the obiter dictum in @asin vs. +#ariAa which cites Tolentino.
&ccording to @asin vs. +#ariAa when the husband dies, the woman can revert to
her old name without need #or )udicial authori6ation.
Art. 176$ )ail! *o+e. ,llegitimate children shall use the surname and
shall be under the parental authorit" of their mother% and shall be entitled to
support in conformit" with this Code. The legitime of each illegitimate child
shall consist of one/half of the legitime of a legitimate child. 9-cept for this
modification% all other provisions in the Civil Code governing successional
rights shall remain in force.
7llegitimate children shall use the surname o# the mother.
Art. 377. >surpation of a name and surname ma" be the subject of an
action for damages and other relief.
Art. 378. The unauthori$ed or unlawful use of another person:s
surname gives a right of action to the latter.
&rticles CC and CD dont tal+ o# the same thing.
&rticle CC deals with the usurpation o# names. There is usurpation when there is
con#usion o# identity :i.e. you claim to be Maime Sobel;
/lements o# &rticle CC :!surpation;9
1. There is an actual use o# anothers name by the de#endant
2. The use is unauthori6ed
. The use o# anothers name is to designate personality or identi#y a person.
&rticle CD is using o# the name #or purposes other than usurpation :i.e. slander%
#or e'ample, 7 will use *alivas surname in my product, calling it *aliva see2thru
lingerie;
Professor Ruben F. Balane Pa)e .* of +,-
!. E3anci'ation an& A)e of $a8orit9 :RA 024-;
REPUBLIC ACT NO. 870H
AN ACT LOWERING THE AGE OF MAFORITY FROM TWENTY<ONE TO EIGHTEEN YEARS4
AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE4
AND FOR OTHER PURPOSES
Sec% 0% A(%)c$e 26D -' E;ec1%)5e O(+e( N-. 20H4 %#e F/)$, C-+e -' %#e P#)$)00)*e"4
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Sec. 2. A(%)c$e" 26E *+ 26G -' %#e "/e C-+e (e #e(e2, (e0e$e+.
Sec. 6. A(%)c$e 268 -' %#e "/e C-+e )" $"- #e(e2, /e*+e+ %- (e+ " '-$$-!"@
=A(%. 268. E/*c)0%)-* "#$$ %e(/)*%e 0(e*%$ 1%#-()%, -5e( %#e 0e("-* *+
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Sec. D. U0-* %#e e''ec%)5)%, -' %#)" Ac%4 e;)"%)*. !)$$"4 2eI1e"%"4 +-*%)-*"4 .(*%"4
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%- /)*-(" !)$$ *-% (e%(-c% %- %#e)( 0(eB1+)ce.
Sec. E. T#)" Ac% "#$$ %&e e''ec% 10-* c-/0$e%)-* -' )%" 012$)c%)-* )* % $e"% %!-
A2C *e!"00e(" -' .e*e($ c)(c1$%)-*.
Approved= Dece/2e( 164 1H7H
/mancipation is the e'tinguishments o# parental authority. 7t ta+es place at the
age o# 1D.
The problem with ,.&. No. 4D1E, being a piece meal amendment, it does not ta+e
care o# all re#erences in the Civil Code with re#erence to the age o# ma)ority.
0ne de#ect o# ,.&. No. 4D1E is that it restores the distinction between per#ect and
imper#ect emancipation. The Family Code removed the distinction which ,& 4D1E
restored. Thus, although 1D is the age o# emancipation9
1. Aersons between 1D to 21 still need parental consent #or marriage.
2. Aarents or guardians are liable #or the -uasi2delicts o# persons who are already
1D years old under &rticle 21D1
until he reaches the age o# 21.

&ccording to Aro#essor =alane, this is cra6y. The basis #or vicarious liability is
parental authority. .ince parents and guardians no longer e'ercise parental
Art. %)/0. The obligation imposed by article 21C4 is demandable not only #or oneGs own acts
or omissions, but also #or those o# persons #or whom one is responsible.
The #ather and, in case o# his death or incapacity, the mother, are responsible #or the
damages caused by the minor children who live in their company.
5uardians are liable #or damages caused by the minors or incapacitated persons who
are under their authority and live in their company.
Professor Ruben F. Balane Pa)e .. of +,-
authority, they should no longer be made liable. This is un)ust because the
parents are no longer in a position to prevent their emancipated children #rom
acting < responsibility without power.
?2 o# &rticle 21D1 has been repealed by &rticle 221
o# the Family Code.

!I. Absence
&bsence is that special legal status o# one who is not in his domicile, his
whereabouts being un+nown and it being uncertain whether he is dead or alive.
Example: "hen 8acson went to the !., 8acson was not absent since his
whereabouts were +nown.
.tages o# &bsence :&ccording to .eriousness;
1. Temporar" or Provisional :&rticles D1 < D;
Art. 381. 0hen a person disappears from his domicile% his
whereabouts being unknown% and without leaving an agent to
administer his propert"% the judge% at the instance of an interested
part"% a relative% or a friend% ma" appoint a person to represent him in
all that ma" be necessar".
This same rule shall be observed when under similar
circumstances the power conferred b" the absentee has e-pired.
Art. 382. The appointment referred to in the preceding article
having been made% the judge shall take the necessar" measures to
safeguard the rights and interests of the absentee and shall specif"
the powers% obligations and remuneration of his representative%
regulating them% according to the circumstances% b" the rules
concerning guardians.
Art. 383. ,n the appointment of a representative% the spouse
present shall be preferred when there is no legal separation.
,f the absentee left no spouse% or if the spouse present is a minor%
an" competent person ma" be appointed b" the court.
,e-uisites #or Arovisional &bsence
1. &bsence #or an appreciable period which depends upon the
circumstances
2. 7mmediate necessity #or his representation in some speci#ic urgent
matter
. &bsentee le#t no agent or the agency has e'pired.
The declaration o# provisional absence :must go to court; is limited to a
speci#ic act.
2. 2ormal or Declared :&rticles D$ < DE;
Art. %%). Aarents and other persons e'ercising parental authority shall be civilly liable #or the
in)uries and damages caused by the acts or omissions o# their unemancipated children living
in their company and under their parental authority sub)ect to the appropriate
de#enses provided by law.
Professor Ruben F. Balane Pa)e .+ of +,-
Art. 384. Two "ears having elapsed without an" news about the
absentee or since the receipt of the last news% and five "ears in case
the absentee has left a person in charge of the administration of his
propert"% his absence ma" be declared.
Art. 385. The following ma" ask for the declaration of absence+
5'6 The spouse present3
546 The heirs instituted in a will% who ma" present an authentic
cop" of the same3
576 The relatives who ma" succeed b" the law of intestac"3
5<6 Those who ma" have over the propert" of the absentee some
right subordinated to the condition of his death.
Art. 386. The judicial declaration of absence shall not take
effect until si- months after its publication in a newspaper of general
circulation.
Art. 387. An administrator of the absentee:s propert" shall be
appointed in accordance with article 7C7.
Art. 388. The wife who is appointed as an administratri- of the
husband:s propert" cannot alienate or encumber the husband:s
propert"% or that of the conjugal partnership% without judicial
authorit".
Art. 389. The administration shall cease in an" of the following
cases+
5'6 0hen the absentee appears personall" or b" means of an
agent3
546 0hen the death of the absentee is proved and his testate or
intestate heirs appear3
576 0hen a third person appears% showing b" a proper document
that he has ac.uired the absentee:s propert" b" purchase or
other title.
,n these cases the administrator shall cease in the performance
of his office% and the propert" shall be at the disposal of those who
ma" have a right thereto.
Aeriods
1. 2 years < i# he did not leave an agent
2. 3 years < i# he le#t an agent
Computation o# Aeriod
a. 7# no news, the period must be computed #rom the date o#
disappearance.
b. 7# there is news, the period must be computed #rom the last time the
absentee was re#erred to in the news :not receipt o# last news;
For e'ample, T in 1EE4 goes on a world tour. 0n Barch 1, T poses #or
a picture and sends a postcard. This is received by H on .eptember 1.
T is not heard #rom again. &ccording to Aro#essor =alane, the
disappearance should be counted #rom Barch 1 and not .eptember 1.
Counting #rom .eptember 1 )ust doesnt ma+e senseU
Professor Ruben F. Balane Pa)e ./ of +,-
The purpose o# the declaration o# absence is #or the court to have someone
to administer the property o# the absentee < &rticle D$. 7# the absentee
le#t no property to administer, then one cannot resort to a declaration o#
absence.
For purposes o# re2marriage, a declaration o# absence is not proper. 7n this
case, what is re-uired is a summary proceeding #or presumptive death.
7. Presumptive Death
a. ,r+inar! &resupti(e Deat" :&rticle E1;
Art. 390. After an absence of seven "ears% it being unknown
whether or not the absentee still lives% he shall be presumed dead
for all purposes% e-cept for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten "ears. ,f he
disappeared after the age of sevent"/five "ears% an absence of five
"ears shall be sufficient in order that his succession ma" be
opened.
1. 7# absentee is C3 or below
C years < #or all purposes e'cept succession
11 years 2 #or succession
2. 7# absentee is over C3 years old
3 years #or all purposes
b. -uali.ie+ &resupti(e Deat" :&rticle E1;
Art. 391. The following shall be presumed dead for all
purposes% including the division of the estate among the heirs+
5'6 A person on board a vessel lost during a sea vo"age% or an
aeroplane which is missing% who has not been heard of for
four "ears since the loss of the vessel or aeroplane3
546 A person in the armed forces who has taken part in war%
and has been missing for four "ears3
576 A person who has been in danger of death under other
circumstances and his e-istence has not been known for
four "ears.
Aerson on board a vessel lost during a sea voyage, missing airplane ,
person in the armed #orces who has ta+en part in war, a person who
has been in danger o# death under other circumstances and his
e'istence is not +nown.
General *ule+ $ years #or all purposes
Exception: 2 years #or purposes o# remarriage :&rticle $1, Family
Code;
Art. 41. A marriage contracted b" an" person during
subsistence of a previous marriage shall be null and void% unless
before the celebration of the subse.uent marriage% the prior
spouse had been absent for four consecutive "ears and the
spouse present has a well/founded belief that the absent spouse
Professor Ruben F. Balane Pa)e ., of +,-
was alread" dead. ,n case of disappearance where there is
danger of death under the circumstances set forth in the
provisions of Article 7D' of the Civil Code% an absence of onl"
two "ears shall be sufficient.
@or the purpose of contracting the subse.uent marriage
under the preceding paragraph the spouse present must
institute a summar" proceeding as provided in this Code for the
declaration of presumptive death of the absentee% without
prejudice to the effect of reappearance of the absent spouse.
"hen can you as+ #or a decree o# presumptive death #or purposes o#
remarriage(
1. $ years a#ter disappearance
2. 2 years i# the circumstances #all under &rticle E1
!nder these rules on presumptive death, there is no need #or a court
decree. The mere running o# the period raises the presumption o#
death.
>owever, #or purposes o# remarriage, a summary proceeding is
re-uired under &rticle $1 o# the Family Code. 0therwise, the
subse-uent marriage is void.
7n the case o# Eastern +#ipping vs. Lucas, the .upreme Court did not
apply &rticle E1. The .upreme Court said that &rticle E1 is a
rebuttable presumption. =eing a presumption, &rticle E1 is applied
only i# there is no evidence. 7n this case, the .upreme Court had
enough evidence to rule that the seaman was really dead.
!II.Funerals
Art. 305. The dut" and the right to make arrangements for the
funeral of a relative shall be in accordance with the order established for
support% under article 4D<. ,n case of descendants of the same degree% or of
brothers and sisters% the oldest shall be preferred. ,n case of ascendants% the
paternal shall have a better right.
The order given in &rticle 13 as to who has the right to ma+e #uneral
arrangements #ollows the order #or support under &rticle 1EE
@
o# the Family Code.
Art. 306. 9ver" funeral shall be in keeping with the social position of
the deceased.
Art. 307. The funeral shall be in accordance with the e-pressed
wishes of the deceased. ,n the absence of such e-pression% his religious
beliefs or affiliation shall determine the funeral rites. ,n case of doubt% the
form of the funeral shall be decided upon b" the person obliged to make
*
Art. )22. "henever two or more persons are obliged to give support, the liability shall
devolve upon the #ollowing persons in the order herein provided9
:1; The spouse%
:2; The descendants in the nearest degree%
:; The ascendants in the nearest degree% and
:$; The brothers and sisters.
arrangements for the same% after consulting the other members of the
famil".
Art. 308. 2o human remains shall be retained% interred% disposed of
or e-humed without the consent of the persons mentioned in articles 4D<
and 7E).
Art. 309. An" person who shows disrespect to the dead% or wrongfull"
interferes with a funeral shall be liable to the famil" of the deceased for
damages% material and moral.
Art. 310. The construction of a tombstone or mausoleum shall be
deemed a part of the funeral e-penses% and shall be chargeable to the
conjugal partnership propert"% if the deceased is one of the spouses.
!III. Civil Re)istr9
The Civil ,egistry is the repository o# relevant #acts o# a person :birth, adoption,
nationali6ation, marriage, death, etc.;
Art. 407. Acts% events and judicial decrees concerning the civil status
of persons shall be recorded in the civil register.
&nything which a##ects the civil status o# persons shall be recorded in the Civil
,egister. (Read also Article 1 o! PD &0(
)
Art. <EC. The following shall be entered in the civil register+ 5'6
Girths3 546 marriages3 576 deaths3 5<6 legal separations3 5)6 annulments of
marriage3 5A6 judgments declaring marriages void from the beginning3 5B6
legitimations3 5C6 adoptions3 5D6 acknowledgments of natural children3 5'E6
naturali$ation3 5''6 loss% or 5'46 recover" of citi$enship3 5'76 civil
interdiction3 5'<6 judicial determination of filiation3 5')6 voluntar"
emancipation of a minor3 and 5'A6 changes of name.
Art. 409. ,n cases of legal separation% adoption% naturali$ation and
other judicial orders mentioned in the preceding article% it shall be the dut"
of the clerk of the court which issued the decree to ascertain whether the
same has been registered% and if this has not been done% to send a cop" of
said decree to the civil registr" of the cit" or municipalit" where the court is
functioning.
_
&rt. C. ,onBdisclosure o! -irt# Records. 2 The records o# a personGs birth shall be +ept strictly
con#idential and no in#ormation relating thereto shall be issued e'cept on the re-uest o# any o#
the #ollowing9
:1; The person himsel#, or any person authori6ed by him%
:2; >is spouse, his parent or parents, his direct descendants, or the guardian or institution
legally in2charge o# him i# he is a minor%
:; The court or proper public o##icial whenever absolutely necessary in administrative,
)udicial or other o##icial proceedings to determine the identity o# the childGs parents or
other circumstances surrounding his birth% and
:$; 7n case o# the personGs death, the nearest o# +in.
&ny person violating the prohibition shall su##er the penalty o# imprisonment o# at least
two months or a #ine in an amount not e'ceeding #ive hundred pesos, or both, in the discretion
o# the court.
Art. 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be pria
.acie evidence of the facts therein contained.
Aublic documents shall be presumed to be accurate.
!nder &rticle C o# A* 41, public documents are not accessible to everybody.
Correlate &rticle $11 with &rticle 13 o# ,& D332
:The *omestic &doption &ct;.

Art. 411. 9ver" civil registrar shall be civill" responsible for an"
unauthori$ed alteration made in an" civil register% to an" person suffering
damage thereb". 8owever% the civil registrar ma" e-empt himself from such
liabilit" if he proves that he has taken ever" reasonable precaution to
prevent the unlawful alteration.
Art. 412. 2o entr" in a civil register shall be changed or corrected%
without a judicial order.
/ntries in the civil register can only be corrected by a )udicial proceeding. "ithout
the )udicial proceeding, the person would be guilty o# #alsi#ication o# public
documents and possibly other crimes regarding the civil status o# persons :i.e.,
simulation o# birth;
0riginally, &rticle $12 could only be resorted to i# the error was merely clerical. 7n
-arreto vs. Local ;ivil Registrar, the .upreme Court de#ined a clerical error as one
which is visible to the eyes or obvious to the understanding. 7n this case, the
alleged error being the gender o# the person, the alleged error could not be
determined by a re#erence to the record.
7n recent years, the .upreme Court has ruled that a petition #or correction o# entry
under &rticle $12 and ,ule 11D can be availed o# to correct the #ollowing errors9
1. Clerical
2. .ubstantial
7# the error is clerical, a summary proceeding is enough. 7# the error is
substantial, an adversary proceeding with notice to all parties is necessary.
Art. 413. All other matters pertaining to the registration of civil
status shall be governed b" special laws.
FA$IL% RELATI"NS
I. $arria)e
_
Sec. 15. Confidential Nature of Proceedings and Records. All hearings
in adoption cases shall be confidential and shall not be open to the
public. All records, books, and papers relating to the adoption cases in
the files of the court, the Department, or any other agency or
institution participating in the adoption proceedings shall be kept
strictly confidential.
If the court finds that the disclosure of the information to a
third person is necessary for purposes connected with or arising out of
the adoption and will be for the best interest of the adoptee, the court
may merit the necessary information to be released, restricting the
purposes for which it may be used.
Art. 1. ;arriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the establishment
of conjugal and famil" life. ,t is the foundation of the famil" and an inviolable
social institution whose nature% conse.uences% and incidents are governed
b" law and not subject to stipulation% e-cept that marriage settlements ma"
fi- the propert" relations during the marriage within the limits provided b"
this Code.
Barriage is a contract. 7t is a contract and much more. 7t is a contract o#
permanent union between a man and a woman. & contract o# marriage unli+e
other contracts con#ers status.
The primordial purpose o# marriage is the establishment o# #amily li#e.
5enerally in contracts, the parties are #ree to enter into contractual stipulations.
>owever, in a marriage contract parties are generally not #ree to enter into
contractual stipulations. &ll the conse-uences o# marriage are determined by law.
The only area in which the parties may stipulate is with regard to property
relations as long as these stipulations are not contrary to law. 7n #act, the parties
are not limited to the ma)or regimes in the Family Code.
Art. 2. 2o marriage shall be valid% unless these essential re.uisites
are present+
5'6 !egal capacit" of the contracting parties who must be a male and a
female3 and
546 Consent freel" given in the presence of the solemni$ing officer.
Art. 3. The formal re.uisites of marriage are+
5'6 Authorit" of the solemni$ing officer3
546 A valid marriage license e-cept in the cases provided for in Chapter 4
of this Title3 and
576 A marriage ceremon" which takes place with the appearance of the
contracting parties before the solemni$ing officer and their personal
declaration that the" take each other as husband and wife in the
presence of not less than two witnesses of legal age.
Art. 4. The absence of an" of the essential or formal re.uisites shall
render the marriage void a' initio% e-cept as stated in Article 7) 546.
A defect in an" of the essential re.uisites shall not affect the validit"
of the marriage but the part" or parties responsible for the irregularit" shall
be civill"% criminall" and administrativel" liable.
2 Iinds o# /lements
'. 9ssential
a. 8egal capacity :included in legal capacity is the di##erence in se';
b. Consent
4. @ormal
a. &uthority o# the solemni6ing 0##icer
b. Valid marriage license
c. Barriage ceremony
terms
Professor Ruben F. Balane Pa)e .- of +,-
'. Absence
General *ule+ The absence o# either an essential or #ormal re-uisite
ma+es the marriage void.
Exceptions:
a. Article 35$ para/rap" 2 :party believes in good #aith that the
solemni6ing o##icer has authority;
beginning+
546 Those solemni$ed b" an" person not legall" authori$ed
to perform marriages unless such marriages were
contracted with either or both parties believing in good
faith that the solemni$ing officer had the legal authorit"
to do so3
b. 0arria/es exepte+ .ro arria/e license :&rticles 2C, 2D, 1,
2, , $;
Art. 27. ,n case either or both of the contracting parties
are at the point of death% the marriage ma" be solemni$ed
without necessit" of a marriage license and shall remain valid
even if the ailing part" subse.uentl" survives.
Art. 28. ,f the residence of either part" is so located that
there is no means of transportation to enable such part" to
appear personall" before the local civil registrar% the marriage
ma" be solemni$ed without necessit" of a marriage license.
Art. 31. A marriage in articulo ortis between
passengers or crew members ma" also be solemni$ed b" a ship
captain or b" an airplane pilot not onl" while the ship is at sea
or the plane is in flight% but also during stopovers at ports of
call.
Art. 32. A militar" commander of a unit% who is a
commissioned officer% shall likewise have authorit" to solemni$e
marriages in articulo mortis between persons within the $one of
militar" operation% whether members of the armed forces or
civilians.
Art. 33. ;arriages among ;uslims or among members of
the ethnic cultural communities ma" be performed validl"
without the necessit" of marriage license% provided the" are
solemni$ed in accordance with their customs% rites or practices.
Art. 34. 2o license shall be necessar" for the marriage of
a man and a woman who have lived together as husband and
wife for at least five "ears and without an" legal impediment to
marr" each other. The contracting parties shall state the
foregoing facts in an affidavit before an" person authori$ed b"
law to administer oaths. The solemni$ing officer shall also state
under oath that he ascertained the .ualifications of the
contracting parties are found no legal impediment to the
marriage.
Professor Ruben F. Balane Pa)e +4 of +,-
4. Defect
*e#ect occurs in essential re-uisites alone.
Fairly well2de#ined since there are many speci#ic articles.
E..ect: Barriage is voidable
7. ,rregularit"
7rregularity re#ers to #ormal re-uisites alone
No enumeration as to irregularity unli+e de#ect
E..ects:
a. Valid marriage
b. Aarty responsible #or irregularity may be held liable
&. Difference in ?e- :&rticles 2:1;, $ ?1, E;
Art. 2 112. 2o marriage shall be valid% unless these essential
re.uisites are present+
5'6 !egal capacit" of the contracting parties who must be a male
and a female3
*i##erence in se' is e'plicitly re-uired #or the #irst time. 7t was
necessary to ma+e this e'plicit since some )urisdictions allow same se'
marriages.
Art. 4. The absence of an" of the essential or formal re.uisites
shall render the marriage void a' initio$ e-cept as stated in Article 7)
546.
The absence o# this re-uisite ma+es the marriage void.
Art. 39. The action or defense for the declaration of absolute
nullit" shall not prescribe.
The period to have the marriage declared void is imprescriptible, the
element being essential.
=. ?ome @orm of Ceremon" :&rticles :;, $ ?1, 4, D;
576 A marriage ceremon" which takes place with the appearance
of the contracting parties before the solemni$ing officer and
their personal declaration that the" take each other as
husband and wife in the presence of not less than two
witnesses of legal age.
shall render the marriage void a' initio% e-cept as stated in Article 7)
546.
Art. 6. 2o prescribed form or religious rite for the solemni$ation
of the marriage is re.uired. ,t shall be necessar"% however% for the
Professor Ruben F. Balane Pa)e +* of +,-
contracting parties to appear personall" before the solemni$ing officer
and declare in the presence of not less than two witnesses of legal age
that the" take each other as husband and wife. This declaration shall
be contained in the marriage certificate which shall be signed b" the
contracting parties and their witnesses and attested b" the
solemni$ing officer.
,n case of a marriage in articulo mortis% when the part" at the
point of death is unable to sign the marriage certificate% it shall be
sufficient for one of the witnesses to the marriage to write the name
of said part"% which fact shall be attested b" the solemni$ing officer.
The #ollowing are the barest minimum re-uired9
1. Aersonal appearance o# parties be#ore the solemni6ing o##icer
2. *eclaration that they ta+e each other as husband and wi#e
:mani#estation o# intent;
The law does not re-uire a speci#ic ceremony neither does it re-uire
speci#ic words or symbols.
Barriages by pro'y are N0T &880"/* since the contracting parties must
personally appear be#ore the solemni6ing o##icer.
The intent :their declaration that they each other as husband and wi#e;
may be mani#ested in any #orm :i.e. words, gestures, etc.;. 7n the case o#
9artinez vs. 7an the intent was mani#ested in writing.
.ome commentaries say that the 2 witnesses must be o# legal age. 0thers
say they need not be o# legal age. To be sa#e, the witnesses should be o#
legal age.
Art. 8. The marriage shall be solemni$ed publicl" in the
chambers of the judge or in open court% in the church% chapel or
temple% or in the office the consul/general% consul or vice/consul% as
the case ma" be% and not elsewhere% e-cept in cases of marriages
contracted on the point of death or in remote places in accordance
with Article 4D
of this Code% or where both of the parties re.uest the

solemni$ing officer in writing in which case the marriage ma" be
solemni$ed at a house or place designated b" them in a sworn
statement to that effect.
C. !egal Capacit" :&rticle 2:1;;
Art. 2. 2o marriage shall be valid% unless these essential
re.uisites are present+
5'6 !egal capacit" of the contracting parties who must be a male
and a female3
'. A/e :&rticles 3, 3:1;, E, $3:1;, C:1;;
_
Art. %2. 7n the cases provided #or in the two preceding articles, the solemni6ing o##icer shall
state in an a##idavit e'ecuted be#ore the local civil registrar or any other person legally
authori6ed to administer oaths that the marriage was per#ormed in articulo mortis or that the
residence o# either party, speci#ying the barrio or barangay, is so located that there is no means
o# transportation to enable such party to appear personally be#ore the local civil registrar and
that the o##icer too+ the necessary steps to ascertain the ages and relationship o# the
contracting parties and the absence o# legal impediment to the marriage.
Professor Ruben F. Balane Pa)e +. of +,-
Art. 5. An" male or female of the age of eighteen "ears or
upwards not under an" of the impediments mentioned in Articles
7B and 7C% ma" contract marriage.
For both male and #emale, the minimum age is 1D.
beginning+
5'6 Those contracted b" an" part" below eighteen "ears of age
even with the consent of parents or guardians3
7# any contracting party is below 1D, the marriage is void.
The period to have the marriage declared void shall not prescribe.
Art. 45. A marriage ma" be annulled for an" of the following
causes% e-isting at the time of the marriage+
5'6 That the part" in whose behalf it is sought to have the
marriage annulled was eighteen "ears of age or over but
below twent"/one% and the marriage was solemni$ed
without the consent of the parents% guardian or person
having substitute parental authorit" over the part"% in that
order% unless after attaining the age of twent"/one% such
part" freel" cohabited with the other and both lived
together as husband and wife3
Art. 47. The action for annulment of marriage must be filed
b" the following persons and within the periods indicated herein+
5'6 @or causes mentioned in number ' of Article <) b" the
part" whose parent or guardian did not give his or her
consent% within five "ears after attaining the age of
twent"/one% or b" the parent or guardian or person having
legal charge of the minor% at an" time before such part"
has reached the age of twent"/one3
*espite ,.&. No. 4D1E, parental consent is re-uired #or a contracting
party who has not yet reached 21.
&rticle $C:1; tells us who can set aside the marriage which is voidable
#or lac+ o# the necessary parental consent. The parent who did not give
he necessary parental consent until such child reaches the age o# 24.
>owever in &rticle $3:1;, rati#ication o# the marriage is possible i# the
party who needed parental consent cohabits with the other spouse.
,ati#ication may only occur a#ter such party reaches 21.
0nce the marriage has been rati#ied, the parents cannot annul under
this ground.
7# the parents #iled the annulment be#ore their child reached 21, but
upon reaching 21, their child cohabits, the action to annul the marriage
continues. "hat would be determinative in such a situation is the time
o# #iling.
Professor Ruben F. Balane Pa)e ++ of +,-
The capacitated person or his parents may not have the marriage
annulled #or lac+ o# parental consent.
4. Relations"ip :&rticles C, D :12D;, E;
Art. 37. ;arriages between the following are incestuous and
void from the beginning% whether relationship between the parties
be legitimate or illegitimate+
5'6 Getween ascendants and descendants of an" degree3 and
546 Getween brothers and sisters% whether of the full or half
blood.
7ncestuous ,elationship
1. 7n the direct line, in any degree < no limit
2. 2
nd
degree collaterals :brothers F sisters; whether #ull or hal# blood,
legitimate or illegitimate
beginning for reasons of public polic"+
5'6 Getween collateral blood relatives whether legitimate or
illegitimate% up to the fourth civil degree3
546 Getween step/parents and step/children3
576 Getween parents/in/law and children/in/law3
5<6 Getween the adopting parent and the adopted child3
5)6 Getween the surviving spouse of the adopting parent and
the adopted child3
5A6 Getween the surviving spouse of the adopted child and the
adopter3
5B6 Getween an adopted child and a legitimate child of the
adopter3
5C6 Getween adopted children of the same adopter3
&rticle D :1; re#ers to uncles, aunts and #irst cousins
&rticle D :; is a new provision < marriage between parents2in2law and
children2in2law
&rticles D :3; and D :4; are provided #or to guard against scandal <
marriage between the surviving spouse o# the adopting parent and the
adopted child% marriage between the surviving spouse o# the adopted
child and adopter.
&rticle D :D; prohibits the marriage between adopted children o# the
same adopter while &rt. D :C; prohibits the marriage between an
adopted child and a legitimate child o# the adopted. "hat is not
prohibited are the #ollowing9
1. Barriage between an adopted child and an illegitimate child o# the
adopter.
2. Barriage between stepchildren
Art. 39. The action or defense for the declaration of
absolute nullit" shall not prescribe.
Professor Ruben F. Balane Pa)e +/ of +,-
The period to have the marriage declared void shall not prescribe.
7. &rior 0arria/e :&rticles 3 :$;, 3 :4;, $1, $1, $2, $, $$, 32, 3 F E;
The #ollowing are marriages which are de#ective because o# a
prior marriage9
a. Gigamous or pol"gamous marriages not falling under Article
<'
Art. 35. The following marriages shall be void from
the beginning+
5<6 Those bigamous or pol"gamous marriages not falling
under Article <'3
7# the marriage #alls under &rticle $1, the marriage is valid.
Art. 41. A marriage contracted b" an" person during
subsistence of a previous marriage shall be null and void%
unless before the celebration of the subse.uent marriage%
the prior spouse had been absent for four consecutive "ears
and the spouse present has a well/founded belief that the
absent spouse was alread" dead. ,n case of disappearance
where there is danger of death under the circumstances set
forth in the provisions of Article 7D' of the Civil Code% an
absence of onl" two "ears shall be sufficient.
@or the purpose of contracting the subse.uent
marriage under the preceding paragraph the spouse present
must institute a summar" proceeding as provided in this
Code for the declaration of presumptive death of the
absentee% without prejudice to the effect of reappearance of
the absent spouse.
Art. 42. The subse.uent marriage referred to in the
preceding Article shall be automaticall" terminated b" the
recording of the affidavit of reappearance of the absent
spouse% unless there is a judgment annulling the previous
marriage or declaring it void a' initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registr" of the
residence of the parties to the subse.uent marriage at the
instance of an" interested person% with due notice to the
spouses of the subse.uent marriage and without prejudice to
the fact of reappearance being judiciall" determined in case
such fact is disputed.
,e-uisites o# a marriage under &rticle $19
1. &bsence o# a prior spouse #or at least $ consecutive years or
2 consecutive years i# the circumstances #all under &rt. E1.
2. .pouse presents a well2#ounded belie# that the absent
spouse was already dead
. 7nstitution by the present spouse o# a summary proceeding
#or the declaration o# presumptive death.
,ules #or marriages under &rticle $1
Professor Ruben F. Balane Pa)e +, of +,-
1. The marriage is valid until it is terminated under &rticle $2
:,ote: The term OterminatedP and not OannulledP is used
since the 2
nd
marriage is not a de#ective but a regular
marriage;
2. General *ule+ The termination o# the 2
nd
marriage ta+es
e##ect upon the recording o# the a##idavit o# reappearance o#
the absent spouse.
. Exception: There is no termination o# the 2
nd
marriage i#
there is a )udgment o# annulment or nullity with regard to
the 1
st
marriage.
&ny interested party may case the recording o# the a##idavit o#
reappearance :i.e., present spouse, absent spouse, subse-uent
spouse, children;
The a##idavit o# reappearance should contain the #acts and
circumstances o# appearance
The a##idavit o# reappearance must be recorded in the civil
registry o# the residence o# the parties to the subse-uent
marriage.
E..ecti(eness: The a##idavit o# reappearance is su##icient in
itsel# unless it is )udicially challenged.
Art. 43. The termination of the subse.uent marriage
referred to in the preceding Article shall produce the
following effects+
5'6 The children of the subse.uent marriage conceived
prior to its termination shall be considered
legitimate3
546 The absolute communit" of propert" or the conjugal
partnership% as the case ma" be% shall be dissolved
and li.uidated% but if either spouse contracted said
marriage in bad faith% his or her share of the net
profits of the communit" propert" or conjugal
partnership propert" shall be forfeited in favor of the
common children or% if there are none% the children
of the guilt" spouse b" a previous marriage or in
default of children% the innocent spouse3
576 Donations b" reason of marriage shall remain valid%
e-cept that if the donee contracted the marriage in
bad faith% such donations made to said donee are
revoked b" operation of law3
5<6 The innocent spouse ma" revoke the designation of
the other spouse who acted in bad faith as
beneficiar" in an" insurance polic"% even if such
designation be stipulated as irrevocable3 and
5)6 The spouse who contracted the subse.uent marriage
in bad faith shall be dis.ualified to inherit from the
innocent spouse b" testate and intestate succession.
E..ects:
1. /ssentially, 1
st
marriage continues.
2. &ccording to &rticle $ :3;, the spouse who contracted the
subse-uent marriage in bad #aith shall be dis-uali#ied to
inherit #rom the innocent spouse < testate and intestate
succession. There#ore, the implication sis that i# the parties
are in good #aith, they are still heirs o# each other. Aro#essor
=alane doesnt agree with this. &ccording to Aro#essor
=alane, i# the 2
nd
marriage is terminated, it should #ollow that
the parties to the second marriage lose their right to be heirs
o# each other.
Art. 44. ,f both spouses of the subse.uent marriage
acted in bad faith% said marriage shall be void a' initio and
all donations b" reason of marriage and testamentar"
dispositions made b" one in favor of the other are revoked b"
operation of law.
b. =oid under Article <E
Art. 40. The absolute nullit" of a previous marriage
ma" be invoked for purposes of remarriage on the basis
solel" of a final judgment declaring such previous marriage
void.
/ven i# the 1
st
marriage is void, there is still a need #or a
summary proceeding declaring such marriage void a5 initio.
Thus, i# a 2
nd
marriage is contracted without #irst securing the
declaration o# nullity with regard to the 1
st
marriage, then the 2
nd
marriage is also void. Alus, bigamy has been committed.
c. =oid under Article )7 5in relation to Article )46
beginning+
5A6 Those subse.uent marriages that are void under
Article )7.
Art. 52. The judgment of annulment or of absolute
nullit" of the marriage% the partition and distribution of the
properties of the spouses and the deliver" of the children:s
presumptive legitimes shall be recorded in the appropriate
civil registr" and registries of propert"3 otherwise% the same
shall not affect third persons.
Art. 53. 9ither of the former spouses ma" marr" again
after compliance with the re.uirements of the immediatel"
preceding Article3 otherwise% the subse.uent marriage shall
be null and void.
*espite declaration o# annulment or nullity o# the marriage,
be#ore the #ormer spouses may contract a subse-uent marriage,
the #ollowing must be recorded in the appropriate civil registry
and registries o# property9
1. Mudgment o# annulment or o# absolute nullity
2. Aartition and distribution o# the properties o# the spouses
. *elivery o# the childrens presumptive legitime
7# the preceding tas+s are not accomplished, then any
subse-uent marriage is void.
Art. 39. The action or defense for the declaration of
absolute nullit" shall not prescribe.
The period to have the marriage declared void shall not
prescribe.
<. *rie :&rticle D :E;;
beginning for reasons of public polic"+
5D6 Getween parties where one% with the intention to marr" the
other% killed that other person:s spouse% or his or her own
spouse.
2 changes #rom &rticle D1 :4; o# the Civil Code
1. 7ntention #or +illing must be in order to marry the surviving spouse
2. No conviction is re-uired.
&rticle D :E; e'cludes +illing thru negligence since there is no intent to
+ill.
The di##iculty in &rticle D :E; is proving that the reason #or +illing is to
enable the +iller and the surviving spouse to marry each other.
). &"!sical 3ncapacit! :&rticles $3 :3;, $C :3;;
5)6 That either part" was ph"sicall" incapable of
consummating the marriage with the other% and such
incapacit" continues and appears to be incurable3 or
5)6 @or causes mentioned in number ) and A of Article <)% b"
the injured part"% within five "ears after the marriage.
These articles re#er to impotence and not sterility.
Ben and women are capable o# impotence. For men, there is
impotence when they cannot erect. For women, impotence occurs
when penetration is not possible < an anatomical disorder. For men,
impotence may have physical or psychological causes.
,e-uisites o# &nnulment *ue to 7mpotence
1. 7mpotence e'ists at the time o# the celebration o# the marriage
2. The impotence is permanent and incurable :need medical opinion;
. The impotence is un+nown to the other spouse.
$. The other spouse must also not be impotent.
7n some )urisdictions, there is a presumption that i# a#ter years o#
marriage and it is #ound that the woman is still a virgin and su##ers no
anatomical de#ects, it is presumed that the man is impotent. There is
no Ahilippine case stating that this presumption also applies in the
Ahilippines. :This is +nown as the Doctrine of Triennial
Cohabitation;
"hat i# the man is impotent only with regard to his wi#e( There is no
case yet.
The action #or annulment due to impotence must be #iled by the in)ured
party within 3 years a#ter the marriage.
& marriage which is de#ective because o# a partys impotence cannot be
rati#ied. ,ati#ication means cohabitation with se'ual intercourse.
A. &s!c"olo/ical 3ncapacit! :&rticle 4;
Art. 36. A marriage contracted b" an" part" who% at the time
of the celebration% was ps"chologicall" incapacitated to compl"
with the essential marital obligations of marriage% shall likewise be
void even if such incapacit" becomes manifest onl" after its
solemni$ation.
Asychological incapacity is not a substitute #or divorce. The theory
behind psychological incapacity is that one or both o# the spouses
cannot discharge one or more o# the essential marital obligations
:&rticle 4D;. There must be an absolute incapability to do so.
*uring the 1
st
years o# the e##ectivity o# the Family Code, many couples
resorted to &rticle 4 as a convenient way to end their marriage. &s a
Professor Ruben F. Balane Pa)e +- of +,-
result o# these abuses, the .upreme Court became very strict in
applying &rticle 4.
Asychological incapacity must e'ist at the time the marriage is
celebrated :li+e impotence;. >owever, psychological incapacity need
not be mani#ested at the time o# the celebration o# the marriage. This
is the tric+y part.
7n +antos vs. ;A, the .upreme Court enumerated the #ollowing
characteristics o# psychological incapacity9
1. 5ravity
2. Muridical antecedence
. 7ncurability
7n Repu5lic vs. ;A (9olina), the .upreme Court reiterated +antos vs.
;A. Furthermore, the .upreme Court laid down several guidelines9
1. The burden o# proo# to show the nullity o# the marriage belongs to
the plainti##. &ny doubts should be resolved in #avor o# the
e'istence and continuation o# the marriage and against the
dissolution and nullity.
2. The root cause o# the psychological incapacity must be9
a. Asychological and not physical :although psychological incapacity
can be mani#ested physically;
b. Bedically or clinically identi#ied
c. &lleged in the complaint
d. Aroved su##iciently by e'perts :i.e. psychiatrists, psychologists;
e. Clearly e'plained in the decision
. The incapacity must be proven to be e'isting Oat the time o# the
celebrationP o# the marriage.
$. .uch incapacity must also be shown to be medically or clinically
permanent or incurable.
3. .uch illness must be grave enough to bring about the disability o#
the party to assume the essential obligations o# marriage
4. The essential marital obligations must be those embraced by
&rticles 41 to C1 o# the Family Code as regards the husband and
wi#e, as well as &rticles 221, 221 and 223 o# the same Code in
regard to parents and their children. .uch non2complied marital
obligations must also be stated in the petition, proven by evidence
and included in the test o# the decision.
C. 7nterpretations given by the National &ppellate Batrimonial Tribunal
o# the Catholic Church in the Ahilippines, while not controlling or
decisive, should be given great respect by our courts.
D. The trial court must order the prosecuting attorney or #iscal and the
.olicitor 5eneral to appear as counsel #or the .tate. The .olicitor
5enerals role is to issue a certi#ication stating why he does or does
not agree.
7n ;#i 9ing 7soi vs. ;A, the convergence o# all the #actors stated in the
complaint amounted to psychological incapacity.
B. Disease :&rticles $3 :4;, $C :3;;
Professor Ruben F. Balane Pa)e /4 of +,-
5A6 That either part" was afflicted with a se-uall"/
transmissible disease found to be serious and appears to be
incurable.
5)6 @or causes mentioned in number ) and A of Article <)% b"
the injured part"% within five "ears after the marriage.
,e-uisites #or &nnulment due to disease
1. /ither party is a##licted with a se'ually transmissible disease :.T*;
2. The .T* must e'ist at the time the marriage is celebrated
. The .T* must be serious
$. The .T* must be apparently incurable.
3. The .T* party not a##licted by .T* must be ignorant o# the others
a##liction :Aro#essor =alanes opinion;
4. The in)ured party must be #ree #rom .T* :Aro#essor =alanes
opinion;
&ccording to Aro#essor =alane, &7*. would #all under &rticle $3 :4;.
&rticle $3:4; does not say that the only way to transmit the disease is
through se'.
Aro#essor =alane is not sure i# it is re-uired that the a##licted person
should +now that he has .T*.
The in)ured party must be ignorant o# the other partys a##liction. 7# the
in)ured party +new and the marriage too+ place, then the in)ured party
has no right to complain.
The action to annul the marriage must ta+e place within 3 years #rom
the marriage.
The Family Code does not state i# such a marriage can be rati#ied.
Aro#essor =alane doesnt see why such a marriage cannot be rati#ied.
D. Consent
1. 3nsanit! :&rticles $3:2;, $C:2;;
546 That either part" was of unsound mind% unless such part"
after coming to reason% freel" cohabited with the other as
husband and wife3
546 @or causes mentioned in number 4 of Article <)% b" the
same spouse% who had no knowledge of the other:s
insanit"3 or b" an" relative or guardian or person having
Professor Ruben F. Balane Pa)e /* of +,-
legal charge of the insane% at an" time before the death of
either part"% or b" the insane spouse during a lucid interval
or after regaining sanit"3
7nsanity is a legal and not a medical -uestion.
0ne o# the spouses must be insane at the time the marriage was
celebrated. >owever, Aro#essor =alane cannot imagine anyone
marrying an insane person and not +nowing it.
The #ollowing are the prescriptive periods #or #iling9
1. &t any time be#ore the death o# either party
"ith regard to the same spouse who had no +nowledge o# the
others sanity or by any relative, guardian or person having legal
charge o# the insane
2. *uring a lucid interval or a#ter regaining sanity < with regard to the
insane party.
Cueries:
1. !p to what relatives :degree; can #ile the action #or annulment(
2. >ow long e'actly does the insane spouse have to #ile #or annulment
during a lucid interval or recovery(
,ati#ication by the insane spouse is possible :i.e. during a lucid
interval, the insane spouse cohabits;
4. )rau+ :&rticles $3 :;, $4;
576 That the consent of either part" was obtained b" fraud% unless
such part" afterwards% with full knowledge of the facts
constituting the fraud% freel" cohabited with the other as
husband and wife3
Art. 46. An" of the following circumstances shall constitute
fraud referred to in 2umber 7 of the preceding Article+
5'6 2on/disclosure of a previous conviction b" final judgment
of the other part" of a crime involving moral turpitude3
546 Concealment b" the wife of the fact that at the time of the
marriage% she was pregnant b" a man other than her
husband3
576 Concealment of se-uall" transmissible disease% regardless
of its nature% e-isting at the time of the marriage3 or
5<6 Concealment of drug addiction% habitual alcoholism or
homose-ualit" or lesbianism e-isting at the time of the
marriage.
2o other misrepresentation or deceit as to character% health%
rank% fortune or chastit" shall constitute such fraud as will give
grounds for action for the annulment of marriage.
Fraud here is not the #raud #ounding contracts and obligations. Fraud
here has a very technical meaning < &rticle $4.
Professor Ruben F. Balane Pa)e /. of +,-
&rticle $4 is an /TC8!.7V/ 87.T.
&rticles $4 :1; and :2; are clear. 7n &rticle $4 :;, the .T* need not be
serious or incurable. &s long as the .T*, e'isting at the time o#
marriage, is concealed, it constitutes #raud.
&rticle $4 :$;, must the homose'ual be a practicing homose'ual or is
such se'ual orientation enough under here( There is no )urisprudence
yet.
The in)ured party has 3 years #rom the time the #raud was discovered
to #ile #or annulment.
& marriage which is de#ective due to #raud may be rati#ies. ,ati#ication
occurs when the in)ured party #reely cohabits with the other despite
having #ull +nowledge o# the #acts constituting #raud.
7n -uccat vs. -uccat, the .upreme Court said that there was no
concealment by the wi#e o# the #act that she was pregnant with another
mans child. There was no concealment since at the time o# marriage,
she was already in her 4
th
month.
. Duress 4 .orce$ intii+ation or un+ue in.luence :&rticles $3 :$;, $C
:$;;
5<6 That the consent of either part" was obtained b" force%
intimidation or undue influence% unless the same having
disappeared or ceased% such part" thereafter freel"
cohabited with the other as husband and wife3
5<6 @or causes mentioned in number < of Article <)% b" the
injured part"% within five "ears from the time the force%
intimidation or undue influence disappeared or ceased3
The in)ured party has 3 years #rom the time the #orce, intimidation or
undue in#luence disappeared or ceased to #ile #or annulment.
,ati#ication occurs when the #orce, intimidation or undue in#luence
having disappeared or ceased, the in)ured party cohabits.
$. ;istake as to ,dentit" :&rticles 3 :3;, E;
beginning+
5)6 Those contracted through mistake of one contracting part"
as to the identit" of the other3
& marriage where there is mista+e as to identity is a void marriage
since consent is completely negated.
Bista+e as to identity involves the substitution o# the other party.
Professor Ruben F. Balane Pa)e /+ of +,-
/. Authorit" of the ?olemni$ing #fficer :&rticles :1;, $ :1;, C, 11, 1, 2,
3 :2;;
5'6 Authorit" of the solemni$ing officer3
546.
Art. 7. ;arriage ma" be solemni$ed b"+
5'6 An" incumbent member of the judiciar" within the court:s
jurisdiction3
546 An" priest% rabbi% imam% or minister of an" church or religious
sect dul" authori$ed b" his church or religious sect and
registered with the civil registrar general% acting within the
limits of the written authorit" granted b" his church or
religious sect and provided that at least one of the contracting
parties belongs to the solemni$ing officer:s church or religious
sect3
576 An" ship captain or airplane chief onl" in the case mentioned
in Article 7'3
5<6 An" militar" commander of a unit to which a chaplain is
assigned% in the absence of the latter% during a militar"
operation% likewise onl" in the cases mentioned in Article 743
5)6 An" consul/general% consul or vice/consul in the case provided
in Article 'E.
&rticle C, enumerating those persons who may solemni6e a marriage, has
been amended by the 8ocal 5overnment Code. Now, municipal and city
mayors have the authority to solemni6e a marriage.
&rticle C:1;, )ustices o# the .upreme Court and Court o# &ppeals can
solemni6e marriages anywhere in the Ahilippines. Mustices o# the ,egional
Trial Courts and BunicipalKBetropolitanKBunicipal Circuit Trial Courts can
only solemni6e marriages within their territorial )urisdiction.
Art. 10. ;arriages between @ilipino citi$ens abroad ma" be
solemni$ed b" a consul/general% consul or vice/consul of the *epublic
of the Philippines. The issuance of the marriage license and the duties
of the local civil registrar and of the solemni$ing officer with regard to
the celebration of marriage shall be performed b" said consular
official.
Art. 31. A marriage in articulo mortis between passengers or
crew members ma" also be solemni$ed b" a ship captain or b" an
airplane pilot not onl" while the ship is at sea or the plane is in flight%
but also during stopovers at ports of call.
Art. 32. A militar" commander of a unit% who is a commissioned
officer% shall likewise have authorit" to solemni$e marriages in articulo
mortis between persons within the $one of militar" operation% whether
members of the armed forces or civilians.
Professor Ruben F. Balane Pa)e // of +,-
beginning+
546 Those solemni$ed b" an" person not legall" authori$ed to
perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the
solemni$ing officer had the legal authorit" to do so3
&rticle 3 :2;, i# one or both o# the contracting parties believes in good
#aith that the solemni6ing o##icer had authority to do so even i# such person
was not authori6ed, the marriage is not void but valid.
5ood #aith in &rticle 3 :2; re#ers to a -uestion o# #act. For e'ample, the
parties did not +now that the license o# the priest had e'pired or that the
)udge had retired. 7# the parties thought that Aing 8acson had the
authority marry them, that is not goo# #aith. That is ignorance o# the law.
The same is also true i# the parties believe that an ,TC )udge o# Que6on
City can marry them in Tawi2Tawi. That is an error o# law.
F. ;arriage !icense :&rticles :2;, $ :1;, $ :;, 3 :;, E < 21Wre#ers to the
administrative re-uirementsX, 2C < $;
546 A valid marriage license e-cept in the cases provided for in
Chapter 4 of this Title3
546.
A defect in an" of the essential re.uisites shall not affect the
validit" of the marriage but the part" or parties responsible for the
irregularit" shall be civill"% criminall" and administrativel" liable.
beginning+
preceding Chapter3
Art. 9. A marriage license shall be issued b" the local civil
registrar of the cit" or municipalit" where either contracting part"
habituall" resides% e-cept in marriages where no license is re.uired in
accordance with Chapter 4 of this Title.
Art. 10. ;arriages between @ilipino citi$ens abroad ma" be
solemni$ed b" a consul/general% consul or vice/consul of the *epublic
of the Philippines. The issuance of the marriage license and the duties
of the local civil registrar and of the solemni$ing officer with regard to
the celebration of marriage shall be performed b" said consular
official.
Art. 11. 0here a marriage license is re.uired% each of the
contracting parties shall file separatel" a sworn application for such
license with the proper local civil registrar which shall specif" the
following+
Professor Ruben F. Balane Pa)e /, of +,-
5'6 @ull name of the contracting part"3
546 Place of birth3
576 Age and date of birth3
5<6 Civil status3
5)6 ,f previousl" married% how% when and where the previous
marriage was dissolved or annulled3
5A6 Present residence and citi$enship3
5B6 Degree of relationship of the contracting parties3
5C6 @ull name% residence and citi$enship of the father3
5D6 @ull name% residence and citi$enship of the mother3 and
5'E6 @ull name% residence and citi$enship of the guardian or
person having charge% in case the contracting part" has
neither father nor mother and is under the age of twent"/one
"ears.
The applicants% their parents or guardians shall not be re.uired
to e-hibit their residence certificates in an" formalit" in connection
with the securing of the marriage license.
Art. '4. The local civil registrar% upon receiving such
application% shall re.uire the presentation of the original birth
certificates or% in default thereof% the baptismal certificates of the
contracting parties or copies of such documents dul" attested b" the
persons having custod" of the originals. These certificates or certified
copies of the documents b" this Article need not be sworn to and shall
be e-empt from the documentar" stamp ta-. The signature and official
title of the person issuing the certificate shall be sufficient proof of its
authenticit".
,f either of the contracting parties is unable to produce his birth
or baptismal certificate or a certified cop" of either because of the
destruction or loss of the original or if it is shown b" an affidavit of
such part" or of an" other person that such birth or baptismal
certificate has not "et been received though the same has been
re.uired of the person having custod" thereof at least fifteen da"s
prior to the date of the application% such part" ma" furnish in lieu
thereof his current residence certificate or an instrument drawn up
and sworn to before the local civil registrar concerned or an" public
official authori$ed to administer oaths. ?uch instrument shall contain
the sworn declaration of two witnesses of lawful age% setting forth the
full name% residence and citi$enship of such contracting part" and of
his or her parents% if known% and the place and date of birth of such
part". The nearest of kin of the contracting parties shall be preferred
as witnesses% or% in their default% persons of good reputation in the
province or the localit".
The presentation of birth or baptismal certificate shall not be
re.uired if the parents of the contracting parties appear personall"
before the local civil registrar concerned and swear to the correctness
of the lawful age of said parties% as stated in the application% or when
the local civil registrar shall% b" merel" looking at the applicants upon
their personall" appearing before him% be convinced that either or both
of them have the re.uired age.
Art. 13. ,n case either of the contracting parties has been
previousl" married% the applicant shall be re.uired to furnish% instead
of the birth or baptismal certificate re.uired in the last preceding
article% the death certificate of the deceased spouse or the judicial
decree of the absolute divorce% or the judicial decree of annulment or
declaration of nullit" of his or her previous marriage.
,n case the death certificate cannot be secured% the part" shall
make an affidavit setting forth this circumstance and his or her actual
civil status and the name and date of death of the deceased spouse.
Art. 14. ,n case either or both of the contracting parties% not
having been emancipated b" a previous marriage% are between the
ages of eighteen and twent"/one% the" shall% in addition to the
re.uirements of the preceding articles% e-hibit to the local civil
registrar% the consent to their marriage of their father% mother%
surviving parent or guardian% or persons having legal charge of them%
in the order mentioned. ?uch consent shall be manifested in writing b"
the interested part"% who personall" appears before the proper local
civil registrar% or in the form of an affidavit made in the presence of
two witnesses and attested before an" official authori$ed b" law to
administer oaths. The personal manifestation shall be recorded in both
applications for marriage license% and the affidavit% if one is e-ecuted
instead% shall be attached to said applications.
Art. 15. An" contracting part" between the age of twent"/one
and twent"/five shall be obliged to ask their parents or guardian for
advice upon the intended marriage. ,f the" do not obtain such advice%
or if it be unfavorable% the marriage license shall not be issued till
after three months following the completion of the publication of the
application therefor. A sworn statement b" the contracting parties to
the effect that such advice as been sought% together with the written
advice given% if an"% shall be attached to the application for marriage
license. ?hould the parents or guardian refuse to give an" advice% this
fact shall be stated in the sworn statement.
Art. 16. ,n the cases where parental consent or parental advice
is needed% the part" or parties concerned shall% in addition to the
re.uirements of the preceding articles% attach a certificate issued b" a
priest% imam or minister authori$ed to solemni$e marriage under
Article B of this Code or a marriage counsellor dul" accredited b" the
proper government agenc" to the effect that the contracting parties
have undergone marriage counselling. @ailure to attach said
certificates of marriage counselling shall suspend the issuance of the
marriage license for a period of three months from the completion of
the publication of the application. ,ssuance of the marriage license
within the prohibited period shall subject the issuing officer to
administrative sanctions but shall not affect the validit" of the
marriage.
?hould onl" one of the contracting parties need parental
consent or parental advice% the other part" must be present at the
counselling referred to in the preceding paragraph.
Art. 17. The local civil registrar shall prepare a notice which
shall contain the full names and residences of the applicants for a
marriage license and other data given in the applications. The notice
shall be posted for ten consecutive da"s on a bulletin board outside
the office of the local civil registrar located in a conspicuous place
within the building and accessible to the general public. This notice
shall re.uest all persons having knowledge of an" impediment to the
marriage to advise the local civil registrar thereof. The marriage
license shall be issued after the completion of the period of
publication.
Art. 18. ,n case of an" impediment known to the local civil
registrar or brought to his attention% he shall note down the
particulars thereof and his findings thereon in the application for
marriage license% but shall nonetheless issue said license after the
completion of the period of publication% unless ordered otherwise b" a
competent court at his own instance or that of an" interest part". 2o
filing fee shall be charged for the petition nor a corresponding bond
re.uired for the issuances of the order.
Art. 19. The local civil registrar shall re.uire the pa"ment of the
fees prescribed b" law or regulations before the issuance of the
marriage license. 2o other sum shall be collected in the nature of a fee
or ta- of an" kind for the issuance of said license. ,t shall% however% be
issued free of charge to indigent parties% that is those who have no
visible means of income or whose income is insufficient for their
subsistence a fact established b" their affidavit% or b" their oath before
the local civil registrar.
Art. 20. The license shall be valid in an" part of the Philippines
for a period of one hundred twent" da"s from the date of issue% and
shall be deemed automaticall" cancelled at the e-piration of the said
period if the contracting parties have not made use of it. The e-pir"
date shall be stamped in bold characters on the face of ever" license
issued.
Art. 21. 0hen either or both of the contracting parties are
citi$ens of a foreign countr"% it shall be necessar" for them before a
marriage license can be obtained% to submit a certificate of legal
capacit" to contract marriage% issued b" their respective diplomatic or
consular officials.
?tateless persons or refugees from other countries shall% in lieu
of the certificate of legal capacit" herein re.uired% submit an affidavit
stating the circumstances showing such capacit" to contract marriage.
General *ule+ & marriage license is re-uired.
Exceptions:
1. 0arria/es in articulo mortis :&rticles 2C, 1, 2;
Art. 27. ,n case either or both of the contracting parties
are at the point of death% the marriage ma" be solemni$ed
without necessit" of a marriage license and shall remain valid
even if the ailing part" subse.uentl" survives.
Art. 31. A marriage in articulo mortis between
passengers or crew members ma" also be solemni$ed b" a ship
captain or b" an airplane pilot not onl" while the ship is at sea
or the plane is in flight% but also during stopovers at ports of
call.
Art. 32. A militar" commander of a unit% who is a
commissioned officer% shall likewise have authorit" to solemni$e
marriages in articulo mortis between persons within the $one of
militar" operation% whether members of the armed forces or
civilians.
&rticles 1 and 2 are not distinct e'ceptional marriages but
marriages in articulo mortis.
2. *esidence is located such that either part" has no means of
transportation to enable such part" to appear before the Civil
*egistrar :&rticle 2D;
Art. 28. ,f the residence of either part" is so located that
there is no means of transportation to enable such part" to
appear personall" before the local civil registrar% the marriage
ma" be solemni$ed without necessit" of a marriage license.
. ;arriages among ;uslims or among members of ethnic cultural
communities as long as the" are solemni$ed in accordance with
their customs :&rticle ;
Art. 33. ;arriages among ;uslims or among members of
the ethnic cultural communities ma" be performed validl"
without the necessit" of marriage license% provided the" are
solemni$ed in accordance with their customs% rites or practices.
,.7E: The Buslim Code governs i# the contracting parties are both
Buslims or i# the male is Buslim. 7# only the #emale is Buslim, then the
Family Code governs.
$. Couples living together as husband and wife for at least ) "ears
and the" must not have an" legal impediment to marr" each
other :&rticle $;
Art. 34. 2o license shall be necessar" for the marriage of
a man and a woman who have lived together as husband and
wife for at least five "ears and without an" legal impediment to
marr" each other. The contracting parties shall state the
foregoing facts in an affidavit before an" person authori$ed b"
law to administer oaths. The solemni$ing officer shall also state
under oath that he ascertained the .ualifications of the
contracting parties are found no legal impediment to the
marriage.
Art. 29. ,n the cases provided for in the two preceding
articles% the solemni$ing officer shall state in an affidavit
e-ecuted before the local civil registrar or an" other person
legall" authori$ed to administer oaths that the marriage was
performed in articulo ortis or that the residence of either
part"% specif"ing the barrio or baranga"% is so located that there
is no means of transportation to enable such part" to appear
Professor Ruben F. Balane Pa)e /- of +,-
personall" before the local civil registrar and that the officer
took the necessar" steps to ascertain the ages and relationship
of the contracting parties and the absence of legal impediment
to the marriage.
II. Effect of #efective $arria)es on t7e Status of
C7il&ren
A. ,f the marriage is voidable :&rticle 3$;
Art. 54. Children conceived or born before the judgment of
annulment or absolute nullit" of the marriage under Article 7A has
become final and e-ecutor" shall be considered legitimate. Children
conceived or born of the subse.uent marriage under Article )7 shall
likewise be legitimate.
8egitimate < i# conceived be#ore #inal )udgment
7llegitimate 2 i# conceived a#ter #inal )udgment
G. ,f the marriage is void
General *ule+ Children are illegitimate :&rticle 143;
Art. 165. Children conceived and born outside a valid
marriage are illegitimate% unless otherwise provided in this Code.
Exceptions: 8egitimate i# the marriage #alls under9
1. Article 7A < Asychological incapacity
Art. 36. A marriage contracted b" an" part" who% at
the time of the celebration% was ps"chologicall" incapacitated to
compl" with the essential marital obligations of marriage% shall
likewise be void even if such incapacit" becomes manifest onl"
after its solemni$ation.
2. Article )7 < Children conceived or born o# the subse-uent marriage
under &rticle 3 even though such marriage is void #or #ailure to comply
with the re-uirements o# &rticle 32.
Art. 53. 9ither of the former spouses ma" marr"
again after compliance with the re.uirements of the
immediatel" preceding Article3 otherwise% the subse.uent
marriage shall be null and void.
III. $arria)e Certificate :&rticles 22 and 2;
Art. 22. The marriage certificate% in which the parties shall declare
that the" take each other as husband and wife% shall also state+
5'6 The full name% se- and age of each contracting part"3
546 Their citi$enship% religion and habitual residence3
576 The date and precise time of the celebration of the marriage3
Professor Ruben F. Balane Pa)e ,4 of +,-
5<6 That the proper marriage license has been issued according to law%
e-cept in marriage provided for in Chapter 4 of this Title3
5)6 That either or both of the contracting parties have secured the
parental consent in appropriate cases3
5A6 That either or both of the contracting parties have complied with the
legal re.uirement regarding parental advice in appropriate cases3
and
5B6 That the parties have entered into marriage settlement% if an"%
attaching a cop" thereof.
Art. 23. ,t shall be the dut" of the person solemni$ing the marriage to
furnish either of the contracting parties the original of the marriage
certificate referred to in Article A and to send the duplicate and triplicate
copies of the certificate not later than fifteen da"s after the marriage% to the
local civil registrar of the place where the marriage was solemni$ed. Proper
receipts shall be issued b" the local civil registrar to the solemni$ing officer
transmitting copies of the marriage certificate. The solemni$ing officer shall
retain in his file the .uadruplicate cop" of the marriage certificate% the cop"
of the marriage certificate% the original of the marriage license and% in proper
cases% the affidavit of the contracting part" regarding the solemni$ation of
the marriage in place other than those mentioned in Article C.
& marriage certi#icate is proo# o# marriage. 7t is however not the only proo# :i.e.,
witnesses;
I!. A&&itional Re<uire3ents for Annul3ent or
#eclaration of Nullit9
Art. 48. ,n all cases of annulment or declaration of absolute nullit" of
marriage% the Court shall order the prosecuting attorne" or fiscal assigned to
it to appear on behalf of the ?tate to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or suppressed.
,n the cases referred to in the preceding paragraph% no judgment shall
be based upon a stipulation of facts or confession of judgment.
Arosecuting attorney or #iscal should9
1. Ta+e steps to prevent collusion between the parties
2. Ta+e care that evidence is not #abricated or suppressed
,.7E: No )udgment shall be based upon a stipulation o# #acts or con#ession o#
)udgment.
Art. 52. The judgment of annulment or of absolute nullit" of the
marriage% the partition and distribution of the properties of the spouses and
the deliver" of the children:s presumptive legitimes shall be recorded in the
appropriate civil registr" and registries of propert"3 otherwise% the same
shall not affect third persons.
The #ollowing must be accomplished9
1. Aartition and distribution o# the properties o# the spouses
2. *elivery o# the childrens presumptive legitimes
Professor Ruben F. Balane Pa)e ,* of +,-
. ,ecording o# the )udgment o# annulment or o# absolute nullity. The partition
and distribution and the delivery o# the childrens presumptive legitimes in the
appropriate civil registry and registries o# property. :0therwise, the same shall
not a##ect
rd
persons;
Failure to comply with &rticle 32 shall render the subse-uent marriage null and
void.
!. Forei)n $arria)es an& Forei)n #ivorces
Art. 26$ %1. All marriages solemni$ed outside the Philippines% in
accordance with the laws in force in the countr" where the" were
solemni$ed% and valid there as such% shall also be valid in this countr"%
e-cept those prohibited under Articles 7) 5'6% 5<6% 5)6 and 5A6% 7A7B and 7C.
General *ule+ Foreign marriages which are in accordance with the law in #orce in
the country where they were solemni6ed and valid there are valid in the
Ahilippines.
Exception: Void marriages under Ahilippine 8aw
Exception to t"e exception:
'. Article 7)% J4
beginning+
546 Those solemni$ed b" an" person not legall" authori$ed to
perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the
solemni$ing officer had the legal authorit" to do so3
4. Article 7)% J7
beginning+
preceding Chapter3
Art. 26$ %2. 0here a marriage between a @ilipino citi$en and a
foreigner is validl" celebrated and a divorce is thereafter validl" obtained
abroad b" the alien spouse capacitating him or her to remarr"% the @ilipino
spouse shall have capacit" to remarr" under Philippine law.
General *ule+ Foreign divorces obtained by Filipino citi6ens will be considered
void and are not recogni6ed.
Exception: 7n case the parties to the marriage are a Filipino citi6en and a
#oreigner. 7# the #oreigner obtains a valid #oreign divorce, the Filipino spouse shall
have capacity to re2marry under Ahilippine law.
>owever, i# it is the Filipino citi6en who secures the divorce, the divorce will
not be recogni6ed in the Ahilippines.
,e-uisites o# &rticle 24, ?2
1. The marriage must be one between a Filipino and a #oreigner
2. *ivorce is granted abroad
Professor Ruben F. Balane Pa)e ,. of +,-
. *ivorce must have been obtained by the alien spouse.
$. *ivorce must capacitate the alien spouse to remarry.
&rticle 24, ?2 has a retroactive e##ect i# no vested rights are a##ected.
&ro'le: .uppose at the time o# the marriage, both are Filipinos. 8ater on, one
spouse is naturali6ed. This spouse obtains a #oreign divorce. "ill &rticle 24, ?2
apply(
4 views+
1. <ustice Puno
7t wont. &rticle 24, ?2 re-uires that at the time the marriage is
celebrated, there must be 1 #oreigner.
2. D.< .pinion
7t applies, &rticle 24, ?2 is not speci#ic.
!I. Effects of a #efective $arria)e
'. *e/appearance of absent spouse
The marriage is not really de#ective. Thus, the term OterminatedP is used.
Art. 52. The judgment of annulment or of absolute nullit" of
the marriage% the partition and distribution of the properties of the
spouses and the deliver" of the children:s presumptive legitimes
shall be recorded in the appropriate civil registr" and registries of
propert"3 otherwise% the same shall not affect third persons.
There must be partition and distribution o# the properties o# the spouses
and the delivery o# the childrens presumptive legitimes. This shall be
recorded in the appropriate registries o# property.
4. Annulment
Art. 52. The judgment of annulment or of absolute nullit" of the
marriage% the partition and distribution of the properties of the
spouses and the deliver" of the children:s presumptive legitimes shall
be recorded in the appropriate civil registr" and registries of propert"3
otherwise% the same shall not affect third persons.
There must be a partition and distribution o# the properties o# the spouses
and the delivery o# the childrens presumptive legitime, and the recording
o# such and the )udgment o# nullity with the appropriate civil registry and
registries o# property.
Art. 53. 9ither of the former spouses ma" marr" again after
compliance with the re.uirements of the immediatel" preceding
Article3 otherwise% the subse.uent marriage shall be null and void.
/ither o# the #ormer spouses may marry again provided &rticle 32 is
complied with.
7. Declaration of 2ullit"
This is not a de#ective marriage since there was no marriage in the #irst
place.
Professor Ruben F. Balane Pa)e ,+ of +,-
&rticle 31 applies.
Art. 50. The effects provided for b" paragraphs 546% 576% 5<6
and 5)6 of Article <7 and b" Article << shall also appl" in the proper
cases to marriages which are declared a' initio or annulled b" final
judgment under Articles <E and <).
The final judgment in such cases shall provide for the
li.uidation% partition and distribution of the properties of the
spouses% the custod" and support of the common children% and the
deliver" of third presumptive legitimes% unless such matters had
been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
communit" or the conjugal partnership shall be notified of the
proceedings for li.uidation.
,n the partition% the conjugal dwelling and the lot on which it
is situated% shall be adjudicated in accordance with the provisions
of Articles 'E4 and '4D.
<. !egal ?eparation
.ee &rticles 4 and 4$ #or the e##ects.
Art. 63. The decree of legal separation shall have the
following effects+
5'6 The spouses shall be entitled to live separatel" from each
other% but the marriage bonds shall not be severed3
546 The absolute communit" or the conjugal partnership shall
be dissolved and li.uidated but the offending spouse shall
have no right to an" share of the net profits earned b" the
absolute communit" or the conjugal partnership% which
shall be forfeited in accordance with the provisions of
Article <75463
576 The custod" of the minor children shall be awarded to the
innocent spouse% subject to the provisions of Article 4'7 of
this Code3 and
5<6 The offending spouse shall be dis.ualified from inheriting
from the innocent spouse b" intestate succession.
;oreover% provisions in favor of the offending spouse made
in the will of the innocent spouse shall be revoked b"
operation of law.
Art. 64. After the finalit" of the decree of legal separation%
the innocent spouse ma" revoke the donations made b" him or b"
her in favor of the offending spouse% as well as the designation of
the latter as beneficiar" in an" insurance polic"% even if such
designation be stipulated as irrevocable. The revocation of the
donations shall be recorded in the registries of propert" in the
places where the properties are located. Alienations% liens and
encumbrances registered in good faith before the recording of the
complaint for revocation in the registries of propert" shall be
respected. The revocation of or change in the designation of the
insurance beneficiar" shall take effect upon written notification
thereof to the insured.
Professor Ruben F. Balane Pa)e ,/ of +,-
The action to revoke the donation under this Article must be
brought within five "ears from the time the decree of legal
separation become final.
!II.Rules on t7e Forfeiture of t7e S7are of t7e Guilt9
S'ouse
1. *e/appearance of spouse :&rticle $:2;;
Art. 43. The termination of the subse.uent marriage referred to
in the preceding Article shall produce the following effects+
partnership% as the case ma" be% shall be dissolved and
li.uidated% but if either spouse contracted said marriage in
bad faith% his or her share of the net profits of the communit"
propert" or conjugal partnership propert" shall be forfeited in
favor of the common children or% if there are none% the
children of the guilt" spouse b" a previous marriage or in
The present spouse cannot be the one in bad #aith because in order to
contract a subse-uent marriage, the present spouse must believe in good
#aith that the absent spouse is dead.
2. Annulment :&rticle 31:1;;
Art. 50. The effects provided for b" paragraphs 546% 576% 5<6 and
5)6 of Article <7 and b" Article << shall also appl" in the proper cases
to marriages which are declared a' initio or annulled b" final
judgment under Articles <E and <).
7. !egal ?eparation 5Article A75466
Art. 63. The decree of legal separation shall have the following
effects+
546 The absolute communit" or the conjugal partnership shall be
dissolved and li.uidated but the offending spouse shall have
no right to an" share of the net profits earned b" the absolute
communit" or the conjugal partnership% which shall be
forfeited in accordance with the provisions of Article <75463
!III. Instances w7en t7ere is #eliver9 of Presu3'tive
Le)iti3es
1. *e/appearance of former spouse :&rticles 112 :3;, $:2;;
Art. 102. >pon dissolution of the absolute communit" regime%
the following procedure shall appl"+
5)6 The presumptive legitimes of the common children shall be
delivered upon partition% in accordance with Article )'.
Art. 43. The termination of the subse.uent marriage referred to
in the preceding Article shall produce the following effects+
Professor Ruben F. Balane Pa)e ,, of +,-
partnership% as the case ma" be% shall be dissolved and
li.uidated% but if either spouse contracted said marriage in
bad faith% his or her share of the net profits of the communit"
propert" or conjugal partnership propert" shall be forfeited in
favor of the common children or% if there are none% the
children of the guilt" spouse b" a previous marriage or in
2. Annulment :&rticles 31 ?2, 31;
Art. 50$ %2. The final judgment in such cases shall provide for
the li.uidation% partition and distribution of the properties of the
spouses% the custod" and support of the common children% and the
deliver" of their presumptive legitimes% unless such matters had been
adjudicated in previous judicial proceedings.
Art. 51. ,n said partition% the value of the presumptive legitimes
of all common children% computed as of the date of the final judgment
of the trial court% shall be delivered in cash% propert" or sound
securities% unless the parties% b" mutual agreement judiciall"
approved% had alread" provided for such matters.
The children or their guardian or the trustee of their propert"
ma" ask for the enforcement of the judgment.
The deliver" of the presumptive legitimes herein prescribed
shall in no wa" prejudice the ultimate successional rights of the
children accruing upon the death of either of both of the parents3 but
the value of the properties alread" received under the decree of
annulment or absolute nullit" shall be considered as advances on their
legitime.
. !egal ?eparation :&rticles 112 :3;, 4:2;;
effects+
$. #ther causes for the dissolution of conjugal propert" :&rticles 112, 12E,
13;
5'6 An inventor" shall be prepared% listing separatel" all the
properties of the absolute communit" and the e-clusive
properties of each spouse.
546 The debts and obligations of the absolute communit" shall be
paid out of its assets. ,n case of insufficienc" of said assets%
the spouses shall be solidaril" liable for the unpaid balance
with their separate properties in accordance with the
provisions of the second paragraph of Article D<.
576 0hatever remains of the e-clusive properties of the spouses
shall thereafter be delivered to each of them.
5<6 The net remainder of the properties of the absolute communit"
shall constitute its net assets% which shall be divided e.uall"
between husband and wife% unless a different proportion or
division was agreed upon in the marriage settlements% or
unless there has been a voluntar" waiver of such share
provided in this Code. @or purpose of computing the net profits
subject to forfeiture in accordance with Articles <7% 2o. 546
and A7% 2o. 546% the said profits shall be the increase in value
between the market value of the communit" propert" at the
time of the celebration of the marriage and the market value
at the time of its dissolution.
5A6 >nless otherwise agreed upon b" the parties% in the partition
of the properties% the conjugal dwelling and the lot on which it
is situated shall be adjudicated to the spouse with whom the
majorit" of the common children choose to remain. Children
below the age of seven "ears are deemed to have chosen the
mother% unless the court has decided otherwise. ,n case there
in no such majorit"% the court shall decide% taking into
consideration the best interests of said children.
Art. 129. >pon the dissolution of the conjugal partnership
regime% the following procedure shall appl"+
properties of the conjugal partnership and the e-clusive
546 Amounts advanced b" the conjugal partnership in pa"ment of
personal debts and obligations of either spouse shall be
credited to the conjugal partnership as an asset thereof.
576 9ach spouse shall be reimbursed for the use of his or her
e-clusive funds in the ac.uisition of propert" or for the value
of his or her e-clusive propert"% the ownership of which has
been vested b" law in the conjugal partnership.
5<6 The debts and obligations of the conjugal partnership shall be
paid out of the conjugal assets. ,n case of insufficienc" of said
assets% the spouses shall be solidaril" liable for the unpaid
balance with their separate properties% in accordance with the
provisions of paragraph 546 of Article '4'.
5)6 0hatever remains of the e-clusive properties of the spouses
shall thereafter be delivered to each of them.
5A6 >nless the owner had been indemnified from whatever source%
the loss or deterioration of movables used for the benefit of
the famil"% belonging to either spouse% even due to fortuitous
event% shall be paid to said spouse from the conjugal funds% if
an".
5B6 The net remainder of the conjugal partnership properties shall
constitute the profits% which shall be divided e.uall" between
husband and wife% unless a different proportion or division
was agreed upon in the marriage settlements or unless there
has been a voluntar" waiver or forfeiture of such share as
provided in this Code.
5C6 The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article )'.
5D6 ,n the partition of the properties% the conjugal dwelling and
the lot on which it is situated shall% unless otherwise agreed
upon b" the parties% be adjudicated to the spouse with whom
the majorit" of the common children choose to remain.
Children below the age of seven "ears are deemed to have
chosen the mother% unless the court has decided otherwise. ,n
case there is no such majorit"% the court shall decide% taking
into consideration the best interests of said children.
Art. 135. An" of the following shall be considered sufficient
cause for judicial separation of propert"+
5'6 That the spouse of the petitioner has been sentenced to a
penalt" which carries with it civil interdiction3
546 That the spouse of the petitioner has been judiciall" declared
an absentee3
576 That loss of parental authorit" of the spouse of petitioner has
been decreed b" the court3
5<6 That the spouse of the petitioner has abandoned the latter or
failed to compl" with his or her obligations to the famil" as
provided for in Article 'E'3
5)6 That the spouse granted the power of administration in the
marriage settlements has abused that power3 and
5A6 That at the time of the petition% the spouses have been
separated in fact for at least one "ear and reconciliation is
highl" improbable.
,n the cases provided for in 2umbers 5'6% 546 and 576% the
presentation of the final judgment against the guilt" or absent spouse
shall be enough basis for the grant of the decree of judicial separation
of propert".
3. Decree of 2ullit" :&rticle 31?2;
Art. 50. The final judgment in such cases shall provide for the
li.uidation% partition and distribution of the properties of the spouses%
the custod" and support of the common children% and the deliver" of
third presumptive legitimes% unless such matters had been adjudicated
in previous judicial proceedings.
Aro#essor =alane is not in #avor o# the delivery o# presumptive legitimes.
Aresumptive legitimes are tentative. Furthermore, the properties o# the
spouses are #ro6en, yet the children do not have vested rights.
I=. Le)al Se'aration (Bed and Board Separation)
Art. 55. A petition for legal separation ma" be filed on an" of the
following grounds+
5'6 *epeated ph"sical violence or grossl" abusive conduct directed
against the petitioner% a common child% or a child of the petitioner3
The +ey words are OrepeatedP and OgrosslyP.
546 Ph"sical violence or moral pressure to compel the petitioner to
change religious or political affiliation3
There must be undue pressure since some pressure is e'pected in every marriage.
7t must go beyond what is permissible :case to case basis;.
576 Attempt of respondent to corrupt or induce the petitioner% a common
child% or a child of the petitioner% to engage in prostitution% or
connivance in such corruption or inducement3
5<6 @inal judgment sentencing the respondent to imprisonment of more
than si- "ears% even if pardoned3
5)6 Drug addiction or habitual alcoholism of the respondent3
The drug addiction can occur a#ter the marriage. &rticle 33 :3; does not tal+ o#
concealment o# drug addiction unli+e &rticle $4:$;
.
5A6 !esbianism or homose-ualit" of the respondent3
7s this tal+ing about homose'uality in terms o# practice or is such se'ual
orientation enough( &gain, there are no cases.
5B6 Contracting b" the respondent of a subse.uent bigamous marriage%
whether in the Philippines or abroad3
5C6 ?e-ual infidelit" or perversion3
!nder the Family Code, both men and women need only commit one act o# se'ual
in#idelity to #all under &rticle 33 :D;.
7n :andionco vs. PeDaranda, the .upreme Court said that a criminal conviction o#
concubinage is not necessary, only preponderance o# evidence. 7n #act, a civil
action #or legal separation based on concubinage may proceed ahead o# or
simultaneously with a criminal action.
.e'ual perversion is a relative term.
5D6 Attempt b" the respondent against the life of the petitioner3 or
&rticle 33 :E; < under this ground, there is no need #or conviction.
5'E6 Abandonment of petitioner b" respondent without justifiable cause
for more than one "ear.
_
Art. *&. &ny o# the #ollowing circumstances shall constitute #raud re#erred to in Number o#
the preceding &rticle9
:$; Concealment o# drug addiction, habitual alcoholism or homose'uality or lesbianism
e'isting at the time o# the marriage.
Professor Ruben F. Balane Pa)e ,- of +,-
@or purposes of this Article% the term IchildI shall include a child b"
nature or b" adoption.
Art. 56. The petition for legal separation shall be denied on an" of the
following grounds+
5'6 0here the aggrieved part" has condoned the offense or act
complained of3
546 0here the aggrieved part" has consented to the commission of the
offense or act complained of3
576 0here there is connivance between the parties in the commission of
the offense or act constituting the ground for legal separation3
5<6 0here both parties have given ground for legal separation3
5)6 0here there is collusion between the parties to obtain decree of
legal separation3 or
5A6 0here the action is barred b" prescription.
There are 2 more grounds not #ound in &rticle 349
1. *eath o# either party during the pendency o# the case :LapuzB+8 vs. Eu!emio;
2. ,econciliation o# the spouses during the pendency o# the case :&rticle 44 :1;
;
7n LapuzB+8 vs. Eu!emio, the lawyer wanted to proceed with legal separation
despite o# the death o# one o# the parties. The .upreme Court denied it since the
primary purpose o# legal separation is bed and board separation while the e##ect
on their property relations is merely incidental.
Art. 58. An action for legal separation shall in no case be tried before
si- months shall have elapsed since the filing of the petition.
This is the cooling2o## period < can only try the petition #or legal separation a#ter 4
months #rom #iling. The .upreme Court has interpreted &rticle 3D to mean that
there shall be no hearing on the main issue but the court may hear incidental
issues.
7n the case o# Araneta vs. ;oncepcion, the .upreme Court allowed the court to
hear the issue regarding the custody o# the children even i# the 42month period
had not yet elapsed. Aro#essor =alane didnt li+e the ruling in this case. &ccording
to him, what are you going to tal+ about i# you dont go to the main case(
Art. 59. 2o legal separation ma" be decreed unless the Court has
taken steps toward the reconciliation of the spouses and is full" satisfied%
despite such efforts% that reconciliation is highl" improbable.
For legal separation to be declared, reconciliation must be highly unli+ely.
Art. 60. 2o decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
Art. &&. The reconciliation re#erred to in the preceding &rticles shall have the #ollowing
conse-uences9
:1; The legal separation proceedings, i# still pending, shall thereby be terminated at
whatever stage
,n an" case% the Court shall order the prosecuting attorne" or fiscal
assigned to it to take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed.
No decree o# legal separation shall be based upon a stipulation o# #acts or a
con#ession )udgment. 7n .campo vs. ?lorenciano, the .upreme Court said that
legal separation cannot be granted on the basis o# the wi#es admission alone.
There must be other proo#.
'. 9ffects of @iling A Petition for !egal ?eparation
a. .pouses can live separately #rom each other.
b. The administration o# the common properties :&CA, CA5, etc; shall be
given by the court to either o# the spouses or to a
rd
person as is best #or
the interests o# the community.
c. 7n the absence o# a written agreement o# the spouses, the court shall
provide #or the support between the spouses and the custody and support
o# the common children, ta+ing into account the wel#are o# the children and
their choice o# the parent with whom they wish to remain.
d. "hen the consent o# 1 spouse to any transaction o# the other is re-uired by
law, )udicial authori6ation shall be necessary, unless such spouse
voluntarily gives such consent.
4. 9ffects of the Decree of !egal ?eparation :Nos. 1 < $, &rticle 4;
effects+
5'6 The spouses shall be entitled to live separatel" from each
other% but the marriage bonds shall not be severed3
576 The custod" of the minor children shall be awarded to the
innocent spouse% subject to the provisions of Article 4'7 of
this Code3 and
5<6 The offending spouse shall be dis.ualified from inheriting from
the innocent spouse b" intestate succession. ;oreover%
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked b" operation of law.
a. .pouses shall be entitled to live separately #rom each other, but the
marriage bonds shall not be severed.
b. The &CA or the CA5 shall be dissolved and li-uidated. The o##ending
spouse shall have no right to any share o# the net pro#its earned by the
`
Art. *(. The termination o# the subse-uent marriage re#erred to in the preceding &rticle shall
produce the #ollowing e##ects9
:2; The absolute community o# property or the con)ugal partnership, as the case may be,
shall be dissolved and li-uidated, but i# either spouse contracted said marriage in bad
#aith, his or her share o# the net pro#its o# the community property or con)ugal
partnership property shall be #or#eited in #avor o# the common children or, i# there are
Professor Ruben F. Balane Pa)e 0* of +,-
c. The custody o# the minor children shall be awarded to the innocent spouse
sub)ect to &rticle 21
.
d. The o##ending spouse shall be dis-uali#ied #rom inheriting #rom the innocent
spouse by intestate succession. Testamentary dispositions in #avor o# the
o##ending spouse shall be revo+ed by operation o# law.
e. *onation propter nuptias made by the innocent spouse to the o##ending
spouse may be revo+ed at the option o# the #ormer. :&rticle 4$
;
f. The designation by the innocent spouse o# the o##ending spouse as a
bene#iciary in any insurance policy :even irrevocable ones; may be revo+ed
by the innocent spouse. :&rticle 4$
;
g. Cessation o# the obligation o# mutual support. :&rticle 1ED
;
h. The wi#e shall continue using her name and surname employed be#ore legal
separation.
7. 9ffects of *econciliation
a. Moint custody o# the children is restored.
b. The right to succeed by the guilty spouse #rom the o##ended spouse is
restored < compulsory only.
c. "ith regard testamentary spouse in the will o# the innocent spouse.
d. 7# the donation propter nuptias succession, reconciliation will not
automatically revive the institution o# the guilty were revo+ed, the same is
not automatically restored.
&rticles 43 and 44 always allow reconciliation even a#ter the decree.
Art. 65. ,f the spouses should reconcile% a corresponding
joint manifestation under oath dul" signed b" them shall be filed
with the court in the same proceeding for legal separation.
Art. 66. The reconciliation referred to in the preceding
Articles shall have the following conse.uences+
none, the children o# the guilty spouse by a previous marriage or in de#ault o# children,
the innocent spouse%
`
Art. %)(. 7n case o# separation o# the parents, parental authority shall be e'ercised by the
parent designated by the Court. The Court shall ta+e into account all relevant considerations,
especially the choice o# the child over seven years o# age, unless the parent chosen is un#it.
Art. &*. &#ter the #inality o# the decree o# legal separation, the innocent spouse may revo+e
the donations made by him or by her in #avor o# the o##ending spouse, as well as the
designation o# the latter as bene#iciary in any insurance policy, even i# such designation be
stipulated as irrevocable. The revocation o# the donations shall be recorded in the registries o#
property in the places where the properties are located. &lienations, liens and encumbrances
registered in good #aith be#ore the recording o# the complaint #or revocation in the registries o#
property shall be respected. The revocation o# or change in the designation o# the insurance
bene#iciary shall ta+e e##ect upon written noti#ication thereo# to the insured.
The action to revo+e the donation under this &rticle must be brought within #ive years
#rom the time the decree o# legal separation become #inal.
Art. )2/. *uring the proceedings #or legal separation or #or annulment o# marriage, and #or
declaration o# nullity o# marriage, the spouses and their children shall be supported #rom the
properties o# the absolute community or the con)ugal partnership. &#ter the #inal )udgment
granting the petition, the obligation o# mutual support between the spouses ceases. >owever,
in case o# legal separation, the court may order that the guilty spouse shall give support to the
innocent one, speci#ying the terms o# such order.
Professor Ruben F. Balane Pa)e 0. of +,-
5'6 The legal separation proceedings% if still pending% shall
thereb" be terminated at whatever stage3 and
546 The final decree of legal separation shall be set aside% but
the separation of propert" and an" forfeiture of the share
of the guilt" spouse alread" effected shall subsist% unless
the spouses agree to revive their former propert" regime.
The court:s order containing the foregoing shall be recorded
in the proper civil registries.
&ccording to Aro#essor =alane, it is not the reconciliation which produces
the e##ects in &rticle 44. ,ather, it is the #iling o# the )oint mani#estation o#
reconciliation.
=. Ri)7ts an& "bli)ations between Husban& an& ife
Art. 68. The husband and wife are obliged to live together% observe
mutual love% respect and fidelit"% and render mutual help and support.
This is really a declaration o# policy
The duties o# the spouses to each other are9
1. 8ive together
2. 0bserve mutual love, respect, and #idelity
. ,ender mutual help and support
&rticle 4D is &rticle 4s re#erence when it re#ers to the spouses inability to comply
with the essential marital obligations.
&lthough the courts cannot compel the spouses to comply with their marital
obligations, under &rticles 111 and 12C, the spouse who leaves the con)ugal home
or re#uses to live there without )us t cause shall not have the right to be
supported.
Art. 69. The husband and wife shall fi- the famil" domicile. ,n case of
disagreement% the court shall decide.
The court ma" e-empt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling reasons for
the e-emption. 8owever% such e-emption shall not appl" if the same is not
compatible with the solidarit" of the famil".
The power to #i' the domicile is )oint.
General *ule+ .eparation is incompatible with #amily solidarity.
Exception: &rticle 4E, ?2
@
1. 0ne spouse should live abroad
2. 0ther valid and compelling reasons
Art. 70. The spouses are jointl" responsible for the support of the
famil". The e-penses for such support and other conjugal obligations shall be
paid from the communit" propert" and% in the absence thereof% from the
*
Art. &2 '%. The court may e'empt one spouse #rom living with the other i# the latter should
live abroad or there are other valid and compelling reasons #or the e'emption. >owever, such
e'emption shall not apply i# the same is not compatible with the solidarity o# the #amily.
Professor Ruben F. Balane Pa)e 0+ of +,-
income or fruits of their separate properties. ,n case of insufficienc" or
absence of said income or fruits% such obligations shall be satisfied from the
separate properties.
.upport is a )oint responsibility. =oth spouses are responsible #or the support o#
the #amily.
.upport comprises everything indispensable #or sustenance, dwelling, clothing,
medical attendance, education and transportation, in +eeping with the #inancial
capacity o# the #amily :&rticle 1E$;
!nder &rticles E$ :last ?;
, 121 :last ?;
and 1$4 :?2;
, i# the community property

is insu##icient to cover debts o# the community property, then the spouses are
solidarily liable with their separate property. 7# the spouses have a regime o#
separation o# property, the spouses are solidarily liable to creditors #or #amily
e'penses.
Art. 73. 9ither spouse ma" e-ercise an" legitimate profession%
occupation% business or activit" without the consent of the other. The latter
ma" object onl" on valid% serious% and moral grounds.
,n case of disagreement% the court shall decide whether or not+
5'6 The objection is proper% and
546 Genefit has occurred to the famil" prior to the objection or
thereafter. ,f the benefit accrued prior to the objection% the resulting
obligation shall be enforced against the separate propert" of the
spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors
who acted in good faith.
There is an error here. This is N0T the #ull te't. The te't should read9
E)%#e( "0-1"e /, e;e(c)"e *, $e.)%)/%e 0(-'e"")-*4 -cc10%)-*4
21")*e"" -( c%)5)%, !)%#-1% %#e c-*"e*% -' %#e -%#e(. T#e $%%e( /, -2Bec% -*$, -*
5$)+4 "e()-1" *+ /-($ .(-1*+".
I* c"e -' +)".(ee/e*%4 %#e c-1(% "#$$ +ec)+e !#e%#e( -( *-%@
1. T#e -2Bec%)-* )" 0(-0e(4 *+
2. Be*e')% #" cc(1e+ %- %#e '/)$, 0()-( %- %#e -2Bec%)-* -( %#e(e'%e(. I'
%#e 2e*e')% cc(1e+ 0()-( %- %#e -2Bec%)-*4 %#e (e"1$%)*. -2$).%)-* "#$$ 2e
e*'-(ce+ .)*"% %#e c-//1*)%, 0(-0e(%,. I' %#e 2e*e')% cc(1e+ %#e(e'%e(4
"1c# -2$).%)-* "#$$ 2e e*'-(ce+ .)*"% %#e "e0(%e 0(-0e(%, -' %#e
"0-1"e !#- #" *-% -2%)*e+ c-*"e*%.
=I. Pro'ert9 Relations
Aroperty relations are very important to creditors.
Art. 74. The propert" relationship between husband and wife shall be
governed in the following order+
_
Art. 2* last '. 7# the community property is insu##icient to cover the #oregoing liabilities,
e'cept those #alling under paragraph :E;, the spouses shall be solidarily liable #or the unpaid
balance with their separate properties.
_
Art. )%) last '. 7# the con)ugal partnership is insu##icient to cover the #oregoing liabilities,
the spouses shall be solidarily liable #or the unpaid balance with their separate properties.
_
Art. )*& '%. The liabilities o# the spouses to creditors #or #amily e'penses shall, however, be
solidary.
Professor Ruben F. Balane Pa)e 0/ of +,-
5'6 G" marriage settlements e-ecuted before the marriage3
546 G" the provisions of this Code3 and
576 G" the local custom.
Aroperty relations is the only instance when the husband and wi#e can stipulate as
to the terms an conditions.
The marriage settlement governs the property relations o# spouses provided such
is not contrary to law.
7n the absence o# a marriage settlement, the Family Code comes in. 7# the Family
Code in a rare instance is not applicable, then custom comes in.
There#ore, in the absence o# a marriage settlement or when such marriage
settlement is void, &CA shall be their marriage settlement by operation o# law.
&s an e'ception, when the 1
st
marriage is dissolved by reason o# death and the 2
nd
marriage was entered into be#ore the con)ugal partnership is li-uidated, the law
mandates that a regime o# complete separation o# property shall govern.
Art. 75. The future spouses ma"% in the marriage settlements% agree
upon the regime of absolute communit"% conjugal partnership of gains%
complete separation of propert"% or an" other regime. ,n the absence of a
marriage settlement% or when the regime agreed upon is void% the s"stem of
absolute communit" of propert" as established in this Code shall govern.
&CA is the regime o# the spouses in the absence o# a marriage settlement or when
the marriage settlement is void. This is so because &CA is more in +eeping with
Filipino culture.
General *ule+ &ll modi#ications to the marriage settlement must be made
be#ore the marriage is celebrated.
Exceptions:
1. 8egal .eparation :&rticle 4 :2;
;
7n such an instance, the property regime is dissolved.
2. ,evival o# the #ormer property regime upon reconciliation i# the spouses agree
:&rticle 44 :2;
;
. & spouse may petition the court #or9
1. ,eceivership
2. Mudicial separation o# property, or
. The authority to be the sole administrator o# the con)ugal partnership
_
Art. &(. The decree o# legal separation shall have the #ollowing e##ects9
:2; The absolute community or the con)ugal partnership shall be dissolved and li-uidated
but the o##ending spouse shall have no right to any share o# the net pro#its earned by
the absolute community or the con)ugal partnership, which shall be #or#eited in
accordance with the provisions o# &rticle $:2;%
Art. &&. The reconciliation re#erred to in the preceding &rticles shall have the #ollowing
conse-uences9
:2; The #inal decree o# legal separation shall be set aside, but the separation o# property
and any #or#eiture o# the share o# the guilty spouse already e##ected shall subsist,
unless the spouses agree to revive their #ormer property regime.
Professor Ruben F. Balane Pa)e 0, of +,-
7# the other spouse abandons the other without )ust cause or #ails to
comply with his or her obligations to the #amily. :&rticle 12D
;
4. Mudicial *issolution :&rticles 13 and 14
;
Art. 77. The marriage settlements and an" modification thereof shall
be in writing% signed b" the parties and e-ecuted before the celebration of
the marriage. The" shall not prejudice third persons unless the" are
registered in the local civil registr" where the marriage contract is recorded
as well as in the proper registries of properties.
@orm+ Barriage settlements and their modi#ications must be in writing :private
or public; #or validity
To bind
rd
persons, the marriage settlement must be registered in9
1. 8ocal Civil ,egistry where the marriage contract is recorded.
2. Aroper ,egistries o# Aroperty
Art. 78. A minor who according to law ma" contract marriage ma"
also e-ecute his or her marriage settlements% but the" shall be valid onl" if
the persons designated in Article '< to give consent to the marriage are
`
&rt. 12D. 7# a spouse without )ust cause abandons the other or #ails to comply with his or
her obligation to the #amily, the aggrieved spouse may petition the court #or receivership, #or
)udicial separation o# property, or #or authority to be the sole administrator o# the con)ugal
partnership property, sub)ect to such precautionary conditions as the court may impose.
The obligations to the #amily mentioned in the preceding paragraph re#er to marital,
parental or property relations.
& spouse is deemed to have abandoned the other when he or she has le#t the con)ugal
dwelling without intention o# returning. The spouse who has le#t the con)ugal dwelling #or a
period o# three months or has #ailed within the same period to give any in#ormation as to his or
her whereabouts shall be prima #acie presumed to have no intention o# returning to the
con)ugal dwelling.
`
Art. )($. &ny o# the #ollowing shall be considered su##icient cause #or )udicial separation o#
property9
:1; That the spouse o# the petitioner has been sentenced to a penalty which carries with it
civil interdiction%
:2; That the spouse o# the petitioner has been )udicially declared an absentee%
:; That loss o# parental authority o# the spouse o# petitioner has been decreed by the
court%
:$; That the spouse o# the petitioner has abandoned the latter or #ailed to comply with his
or her obligations to the #amily as provided #or in &rticle 111%
:3; That the spouse granted the power o# administration in the marriage settlements has
abused that power% and
:4; That at the time o# the petition, the spouses have been separated in #act #or at least
one year and reconciliation is highly improbable.
7n the cases provided #or in Numbers :1;, :2; and :;, the presentation o# the #inal
)udgment against the guilty or absent spouse shall be enough basis #or the grant o# the decree
o# )udicial separation o# property.
Art. )(&. The spouses may )ointly #ile a veri#ied petition with the court #or the
voluntary dissolution o# the absolute community or the con)ugal partnership o# gains, and #or
the separation o# their common properties.
&ll creditors o# the absolute community or o# the con)ugal partnership o# gains, as well
as the personal creditors o# the spouse, shall be listed in the petition and noti#ied o# the #iling
thereo#. The court shall ta+e measures to protect the creditors and other persons with
pecuniary interest.
made parties to the agreement% subject to the provisions of Title ,K of this
Code.
7# the party has not yet reached the age o# 21, parental consent is also re-uired
with regard to the marriage settlement.
Art. 79. @or the validit" of an" marriage settlement e-ecuted b" a
person upon whom a sentence of civil interdiction has been pronounced or
who is subject to an" other disabilit"% it shall be indispensable for the
guardian appointed b" a competent court to be made a part" thereto.
Art. 80. ,n the absence of a contrar" stipulation in a marriage
settlement% the propert" relations of the spouses shall be governed b"
Philippine laws% regardless of the place of the celebration of the marriage
and their residence.
This rule shall not appl"+
5'6 0here both spouses are aliens3
546 0ith respect to the e-trinsic validit" of contracts affecting propert"
not situated in the Philippines and e-ecuted in the countr" where the
propert" is located3 and
576 0ith respect to the e-trinsic validit" of contracts entered into in the
Philippines but affecting propert" situated in a foreign countr"
whose laws re.uire different formalities for its e-trinsic validit".
Art. 81. 9ver"thing stipulated in the settlements or contracts referred
to in the preceding articles in consideration of a future marriage% including
donations between the prospective spouses made therein% shall be rendered
void if the marriage does not take place. 8owever% stipulations that do not
depend upon the celebration of the marriages shall be valid.
The marriage settlement and the donations propter nuptias are void i# the
marriage does not ta+e place.
A. Donations &ropter #uptias
,e-uisites o# *onations Propter nuptias
1. Bade be#ore marriage
2. Bade in consideration o# the marriage :the motivation behind the
donation is the marriage;
. 7n #avor o# one or both o# the spouses
The donee must be 1 or both o# the spouses
The donor can be anybody including 1 o# the spouses
7# the wedding gi#t is given be#ore the wedding that is a donation propter
nuptias.
7# the wedding gi#t is given a#ter the wedding, that is treated as an ordinary
donation
Art. 83. These donations are governed b" the rules on ordinar"
donations established in Title ,,, of Gook ,,, of the Civil Code% insofar
as the" are not modified b" the following articles.
F0,B9 Bust comply with the #orm o# donations in order to be valid :.ee
&rticles C$D and C$E
;
Art. 84. ,f the future spouses agree upon a regime other than
the absolute communit" of propert"% the" cannot donate to each other
in their marriage settlements more than one/fifth of their present
propert". An" e-cess shall be considered void.
Donations of future propert" shall be governed b" the provisions
on testamentar" succession and the formalities of wills.
This article applies only i# the regime is N0T &CA. 0therwise, everything
practically would be community property.
7# the donor is one o# the #uture spouses and the regime is N0T &CA, the
donor cannot donate more than 1K3 o# his A,/./NT A,0A/,TH.
The #uture spouse may donate #uture property to his #iancYe #or as long as
it is not ino##icious :does not impair legitimes o# the other compulsory
heirs;. This is so because the donation o# #uture property is really a
testamentary disposition.
7n the case o# 9ateo vs. Lagua, the .upreme Court said that donations
propter nuptias may be revo+ed #or being ino##icious.
7# the donor is not one o# the #uture spouses, the donor may give more
than 1K3 o# his present property provided that the legitimes are not
impaired.
7# the regime is &CA, there is no need to give a donation propter nuptias to
your spouse. 7t is useless since such donation shall become part o# the
community property. 7n addition, donors ta' must be paid.
Art. 86. A donation b" reason of marriage ma" be revoked b"
the donor in the following cases+
5'6 ,f the marriage is not celebrated or judiciall" declared void a'
initio e-cept donations made in the marriage settlements%
which shall be governed b" Article C'3
546 0hen the marriage takes place without the consent of the
parents or guardian% as re.uired b" law3
576 0hen the marriage is annulled% and the donee acted in bad
faith3
5<6 >pon legal separation% the donee being the guilt" spouse3
Art. 1*/. The donation o# a movable may be made orally or in writing.

&n oral donation re-uires the simultaneous delivery o# the thing or o# the document
representing the right donated.
7# the value o# the personal property donated e'ceeds #ive thousand pesos, the
donation and the acceptance shall be made in writing, otherwise, the donation shall be void.
Art. 1*2. 7n order that the donation o# an immovable may be valid, it must be made in
a public document, speci#ying therein the property donated and the value o# the charges which
5)6 ,f it is with a resolutor" condition and the condition is
complied with3
5A6 0hen the donee has committed an act of ingratitude as
specified b" the provisions of the Civil Code on donations in
general.
The donations propter nuptias may be revo+ed on the grounds enumerated
here.
7n &rticle D4 :4;, the act o# ingratitude re#ers to &rticle C43
.
Art. 87. 9ver" donation or grant of gratuitous advantage% direct
or indirect% between the spouses during the marriage shall be void%
e-cept moderate gifts which the spouses ma" give each other on the
occasion of an" famil" rejoicing. The prohibition shall also appl" to
persons living together as husband and wife without a valid marriage.
General *ule+ *uring the marriage, the spouses may not donate to one
another.
Exception: .pouses may give moderate gi#ts to each other on the
occasion o# any #amily re)oicing.
,.7E: &rticle DC is applicable to common2law spouses :9ata5uena vs.
;ervantes;
This is to minimi6e improper or undue pressure as well as to prevent the
spouses #rom de#rauding their creditors.
G. 5!ste o. A'solute *ounit!
Art. 91. >nless otherwise provided in this Chapter or in the
marriage settlements% the communit" propert" shall consist of all the
propert" owned b" the spouses at the time of the celebration of the
marriage or ac.uired thereafter.
Art. 92. The following shall be e-cluded from the communit"
propert"+
5'6 Propert" ac.uired during the marriage b" gratuitous title b"
either spouse% and the fruits as well as the income thereof% if
an"% unless it is e-pressl" provided b" the donor% testator or
grantor that the" shall form part of the communit" propert"3
546 Propert" for personal and e-clusive use of either spouse.
8owever% jewelr" shall form part of the communit" propert"3
576 Propert" ac.uired before the marriage b" either spouse who
has legitimate descendants b" a former marriage% and the
fruits as well as the income% if an"% of such propert".
Art. 1&$. The donation may also be revo+ed at the instance o# the donor, by reason o#
ingratitude in the #ollowing cases9
:1; 7# the donee should commit some o##ense against the person, the honor or the property
o# the donor, or o# his wi#e or children under his parental authority%
:2; 7# the donee imputes to the donor any criminal o##ense, or any act involving moral
turpitude, even though he should prove it, unless the crime or the act has been
committed against the donee himsel#, his wi#e or children under his authority%
:; 7# he unduly re#uses him support when the donee is legally or morally bound to give
support to the donor.
Professor Ruben F. Balane Pa)e 0- of +,-
General *ule+ Community property shall consist o# all the property
owned by the spouses at the time o# the celebration o# the marriage or
ac-uired therea#ter.
Exceptions:
1. Aroperty ac-uired during the marriage by gratuitous title, including the
#ruits and the income.
Exception to t"e exception: The donor, testator, or grantor
e'pressly provides otherwise.
&s #ather dies. & inherits #rom the #ather. & marries =. The
property inherited by & #rom his #ather is part o# the community
property.
=s mother dies during =s marriage to &. The property inherited by
= #rom her mother does not #orm part o# the community property.
7n &CA, the income #rom separate property o# the spouses does not
#orm part o# the community property.
7N CA5, the income #rom separate property o# the spouses #orms
part o# the community property.
2. Aroperty #or personal and e'clusive use o# either spouse
Exception to t"e Exception: Mewelry #orms part o# the community
property.
. Aroperty ac-uired be#ore the marriage by either spouse who has
legitimate descendants by a #ormer marriage, and the #ruits and income
o# such property.
This is provided #or so that the children #rom the 1
st
marriage will
not be pre)udiced.
Art. 93. Propert" ac.uired during the marriage is presumed to
belong to the communit"% unless it is proved that it is one of those
e-cluded therefrom.
&resuption: Aroperty ac-uired during the marriage is presumed to
belong to the community.
>owever it can be rebutted by proving such property ac-uired during
marriage is e'cluded.
Art. 94. The absolute communit" of propert" shall be liable for+
&rticle E$ enumerates the charges upon the absolute community o#
property.
5'6 The support of the spouses% their common children% and
legitimate children of either spouse3 however% the support of
illegitimate children shall be governed b" the provisions of this
Code on ?upport3
The &CA shall support the spouses common children and legitimate
children o# either spouse
& common child o# the spouse may not necessarily be legitimate. For
e'ample, & is married to =. & has an a##air with C. & and C have a child,
*. = dies. & and C get married. * cannot be legitimated since at the time
o# *s conception, & and C had no capacity to get married.
7llegitimate children are supported9
1. Arimarily by their biological parent
2. .ubsidiarily by the &CA :&rticle E$ :E;
@
;
546 All debts and obligations contracted during the marriage b"
the designated administrator/spouse for the benefit of the
communit"% or b" both spouses% or b" one spouse with the
consent of the other3
576 Debts and obligations contracted b" either spouse without the
consent of the other to the e-tent that the famil" ma" have
been benefited3
The wordings under &rticles E$ :2; and E$ :; are di##erent
&rticle E$ :2; contemplates situations9
1. 0bligations contracted by the designated administrator spouse #or the
purpose o# bene#iting the community.
!nder E$ :2; :a;, purpose is enough. 7t is not re-uired to show to
what e'tent the #amily bene#ited.
2. 0bligations contracted by both spouses
. 0bligations contracted by 1 spouse with the consent o# the other.
&rticle E$ :; contemplates the situation wherein 1 spouse contracts an
obligation without the consent o# the other.
The &CA is liable only to the e'tent that the #amily may have bene#ited.
&ro'le: "hat is the rule now regarding obligations contracted by the
business o# a particular spouse(
&ccording to Aro#essor =alane, there are 2 views. 0ne view is that &rticle
E$ :; may be applied since both spouses are the administrators o# the
community property. There#ore, one spouse should not act alone as
administrator. There#ore, obligations contracted #or the business
operations o# a spouse are without consent o# the other.
&nother view is that such debts would #all under &rticle E$ :2;. &ccording
to Mustice Vitug, there is implied consent by the other spouse since the
same did not ob)ect. 0therwise, commercial transactions would slow
down.
5<6 All ta-es% liens% charges and e-penses% including major or
minor repairs% upon the communit" propert"3
*
Art. 2*. The absolute community o# property shall be liable #or9
:E; &ntenuptial debts o# either spouse other than those #alling under paragraph :C; o# this
&rticle, the support o# illegitimate children o# either spouse, and liabilities incurred by
either spouse by reason o# a crime or a -uasi2delict, in case o# absence or insu##iciency
o# the e'clusive property o# the debtor2spouse, the payment o# which shall be
considered as advances to be deducted #rom the share o# the debtor2spouse upon
li-uidation o# the community%
5)6 All ta-es and e-penses for mere preservation made during
marriage upon the separate propert" of either spouse used b"
the famil"3
Ta'es and e'penses #or the preservation upon the e'clusive property by 1
o# the spouses should be borne by the &CA. This is so because the #amily
bene#its.
5A6 9-penses to enable either spouse to commence or complete a
professional or vocational course% or other activit" for self/
improvement3
5B6 Antenuptial debts of either spouse insofar as the" have
redounded to the benefit of the famil"3
5C6 The value of what is donated or promised b" both spouses in
favor of their common legitimate children for the e-clusive
purpose of commencing or completing a professional or
vocational course or other activit" for self/improvement3
5D6 Antenuptial debts of either spouse other than those falling
under paragraph 5B6 of this Article% the support of illegitimate
children of either spouse% and liabilities incurred b" either
spouse b" reason of a crime or a .uasi/delict% in case of
absence or insufficienc" of the e-clusive propert" of the
debtor/spouse% the pa"ment of which shall be considered as
advances to be deducted from the share of the debtor/spouse
upon li.uidation of the communit"3 and
&nte2nuptial debts not #alling under &rticle E$ :C; will be borne by the &CA
i# the separate property o# the debtor2spouse is insu##icient.
5'E6 9-penses of litigation between the spouses unless the suit is
found to be groundless.
,f the communit" propert" is insufficient to cover the foregoing
liabilities% e-cept those falling under paragraph 5D6% the spouses shall
be solidaril" liable for the unpaid balance with their separate
properties.
'. Administration and 9njo"ment of Communit" Propert"
Art. 96$ %1. The administration and enjo"ment of the
communit" propert" shall belong to both spouses jointl". ,n case
of disagreement% the husband:s decision shall prevail% subject to
recourse to the court b" the wife for proper remed"% which must be
availed of within five "ears from the date of the contract
implementing such decision.
&dministration o# the community property belongs to both spouses
)ointly.
=oth spouses must consent to the encumbrance or disposition o# the
community property.
Art. 96 122$ %2. ,n the event that one spouse is incapacitated
or otherwise unable to participate in the administration of the
common properties% the other spouse ma" assume sole powers of
administration. These powers do not include disposition or
encumbrance without authorit" of the court or the written consent
of the other spouse. ,n the absence of such authorit" or consent%
the disposition or encumbrance shall be void. 8owever% the
transaction shall be construed as a continuing offer on the part of
the consenting spouse and the third person% and ma" be perfected
as a binding contract upon the acceptance b" the other spouse or
authori$ation b" the court before the offer is withdrawn b" either
or both offerors.
The other spouse may assume sole powers o# administration when9
1. The other spouse is incapacitated.
2. The other spouse is unable to participate :i.e. abroad;
The power to administer does not include the power to dispose or
encumber solely by 1 spouse. Court authority or the approval o# the
other spouse is re-uired.
Art. 97. 9ither spouse ma" dispose b" will of his or her
interest in the communit" propert".
Art. 98. 2either spouse ma" donate an" communit"
propert" without the consent of the other. 8owever% either
spouse ma"% without the consent of the other% make moderate
donations from the communit" propert" for charit" or on
occasions of famil" rejoicing or famil" distress.
General *ule+ 7n order to donate any community property, the
other spouse must consent.
Exception: Boderate donations do not need the consent o# the other
spouse i# #or9
1. Charity
2. 0ccasions o# #amily re)oicing or distress
4. Dissolution and !i.uidation of Absolute Communit"
Art. 99. The absolute communit" terminates+
5'6 >pon the death of either spouse3
546 0hen there is a decree of legal separation3
576 0hen the marriage is annulled or declared void3 or
5<6 ,n case of judicial separation of propert" during the
marriage under Article '7< to '7C.
*issolution o# the &CA is not synonymous with the dissolution o# the
marriage. 7n &rticles EE :2; and :$;, the &CA is dissolved although the
marriage is not. >owever, the dissolution o# the marriage automatically
results in the dissolution o# the &CA.
7n &rticle EE :;, when a marriage is declared as a nullity, there is no
&CA to dissolve since there was no property regime to begin with. The
dissolution in such a case would be governed by the rules on co2
ownership.
&rticle EE is not a complete enumeration o# the instances when the &CA
terminates. &nother instance is when the marriage is terminated by
the reappearance o# the absent spouse :&rticles $2 and $ :2;
;.
Art. 102. >pon dissolution of the absolute communit"
regime% the following procedure shall appl"+
properties of the absolute communit" and the e-clusive
546 The debts and obligations of the absolute communit" shall
be paid out of its assets. ,n case of insufficienc" of said
assets% the spouses shall be solidaril" liable for the unpaid
balance with their separate properties in accordance with
the provisions of the second paragraph of Article D<.
576 0hatever remains of the e-clusive properties of the
spouses shall thereafter be delivered to each of them.
5<6 The net remainder of the properties of the absolute
communit" shall constitute its net assets% which shall be
divided e.uall" between husband and wife% unless a
different proportion or division was agreed upon in the
marriage settlements% or unless there has been a voluntar"
waiver of such share provided in this Code. @or purpose of
computing the net profits subject to forfeiture in
accordance with Articles <7% 2o. 546 and A7% 2o. 546% the
said profits shall be the increase in value between the
market value of the communit" propert" at the time of the
celebration of the marriage and the market value at the
time of its dissolution.
5A6 >nless otherwise agreed upon b" the parties% in the
partition of the properties% the conjugal dwelling and the
lot on which it is situated shall be adjudicated to the
spouse with whom the majorit" of the common children
choose to remain. Children below the age of seven "ears
are deemed to have chosen the mother% unless the court
has decided otherwise. ,n case there in no such majorit"%
_
Art. *%. The subse-uent marriage re#erred to in the preceding &rticle shall be automatically
terminated by the recording o# the a##idavit o# reappearance o# the absent spouse, unless there
is a )udgment annulling the previous marriage or declaring it void a5 initio.
& sworn statement o# the #act and circumstances o# reappearance shall be recorded in
the civil registry o# the residence o# the parties to the subse-uent marriage at the instance o#
any interested person, with due notice to the spouses o# the subse-uent marriage and without
pre)udice to the #act o# reappearance being )udicially determined in case such #act is disputed.
Art. *(. The termination o# the subse-uent marriage re#erred to in the preceding
&rticle shall produce the #ollowing e##ects9
:2; The absolute community o# property or the con)ugal partnership, as the case may be,
shall be dissolved and li-uidated, but i# either spouse contracted said marriage in bad
#aith, his or her share o# the net pro#its o# the community property or con)ugal
partnership property shall be #or#eited in #avor o# the common children or, i# there are
none, the children o# the guilty spouse by a previous marriage or in de#ault o# children,
the innocent spouse%
the court shall decide% taking into consideration the best
interests of said children.
&rticle 112 enumerates the steps in li-uidation9
1. 7nventory
lists
1. 7nventory o# community property
2. 7nventory o# separate property o# the wi#e
. 7nventory o# separate property o# the husband.
2. Aayment o# Community *ebts
First, pay out o# community assets
7# not enough, husband and wi#e are solidarily liable with their
separate property.
. *elivery to each spouse his or her separate property i# any.
$. *ivision o# the net community assets
,.7E: There are special rules regarding the #amily home.
3. *elivery o# presumptive legitimes i# any to the children
The presumptive legitimes are given in the #ollowing instances9
1. *eath o# either spouse :&rticle 11;
2. 8egal .eparation :&rticles 4 and 4$;
. &nnulment :&rticles 31 < 32;
$. Mudicial .eparation o# Aroperty :&rticles 1$ < 1C;
3. ,eappearance o# the absent spouse which terminates the 2
nd
marriage :&rticle $;
Art. 100. The separation in fact between husband and wife
shall not affect the regime of absolute communit" e-cept that+
5'6 The spouse who leaves the conjugal home or refuses to live
therein% without just cause% shall not have the right to be
supported3
546 0hen the consent of one spouse to an" transaction of the
other is re.uired b" law% judicial authori$ation shall be
obtained in a summar" proceeding3
576 ,n the absence of sufficient communit" propert"% the
separate propert" of both spouses shall be solidaril" liable
for the support of the famil". The spouse present shall%
upon proper petition in a summar" proceeding% be given
judicial authorit" to administer or encumber an" specific
separate propert" of the other spouse and use the fruits or
proceeds thereof to satisf" the latter(s share.
.eparation de !acto does not dissolve the &CA.
Art. 101. ,f a spouse without just cause abandons the other
or fails to compl" with his or her obligations to the famil"% the
aggrieved spouse ma" petition the court for receivership% for
judicial separation of propert" or for authorit" to be the sole
administrator of the absolute communit"% subject to such
precautionar" conditions as the court ma" impose.
The obligations to the famil" mentioned in the preceding
paragraph refer to marital% parental or propert" relations.
A spouse is deemed to have abandoned the other when her
or she has left the conjugal dwelling without intention of returning.
The spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give an"
information as to his or her whereabouts shall be pria .acie
presumed to have no intention of returning to the conjugal
dwelling.
7# a spouse abandons the other spouse without )ust cause or #ails to
comply with his or marital obligations, the aggrieved spouse may
petition the court #or the #ollowing9
1. ,eceivership
2. Mudicial separation o# property
. &uthority to be the sole administrator.
&bandonment occurs when one leaves the con)ugal dwelling without
intention o# returning.
&resuption o. A'an+onent: "hen the spouse has le#t the
con)ugal dwelling #or a period o# months without giving in#ormation as
to his whereabouts.
Art. 104. 0henever the li.uidation of the communit"
properties of two or more marriages contracted b" the same person
before the effectivit" of this Code is carried out simultaneousl"% the
respective capital% fruits and income of each communit" shall be
determined upon such proof as ma" be considered according to the
rules of evidence. ,n case of doubt as to which communit" the
e-isting properties belong% the same shall be divided between the
different communities in proportion to the capital and duration of
each.
&rticle 11$ will hardly ever occur. .+ip this.
C. *on6u/al &artners"ip o. Gains
Inowing the CA5 is important. !nder the Civil Code, this was the
preponderant property regime. .ince a lot o# marriages too+ place be#ore
the e##ectivity o# the Family Code < &ugust , 1EDD < many property
regimes are CA5.
Art. 105. ,n case the future spouses agree in the marriage
settlements that the regime of conjugal partnership gains shall govern
their propert" relations during marriage% the provisions in this Chapter
shall be of supplementar" application.
The provisions of this Chapter shall also appl" to conjugal
partnerships of gains alread" established between spouses before the
effectivit" of this Code% without prejudice to vested rights alread"
ac.uired in accordance with the Civil Code or other laws% as provided
in Article 4)A.
The regime o# CA5 applies9
1. 7n case the #uture spouse agree on this regime in their marriage
settlement, their property relations will be governed by their agreement
with the Family Code suppletorily applicable.
2. CA5s be#ore the a##ectivity o# the Family Code, without pre)udice to
vested rights
Art. 106. >nder the regime of conjugal partnership of gains% the
husband and wife place in a common fund the proceeds% products%
fruits and income from their separate properties and those ac.uired b"
either or both spouses through their efforts or b" chance% and% upon
dissolution of the marriage or of the partnership% the net gains or
benefits obtained b" either or both spouses shall be divided e.uall"
between them% unless otherwise agreed in the marriage settlements.
The husband and wi#e place in a common #und9
1. 7ncome o# their separate properties
2. /verything ac-uired by them through their e##orts :whether singly or
)ointly;
. /verything ac-uired by them through chance :the winnings #rom
gambling, hidden treasure, those ac-uired #rom hunting;
The spouses are not co2owners o# the con)ugal properties during the
marriage and cannot alienate the supposed Z interest o# each in the said
properties. The interest o# the spouses in the con)ugal properties is only
inchoate or a mere e'pectancy and does not ripen into title until it appears
a#ter the dissolution and li-uidation o# the partnership that there are net
assets :De Ansaldo vs. +#eri!! o! 9anila;.
Art. 107. The rules provided in Articles CC
and CD
shall also
appl" to conjugal partnership of gains.
Art. 108. The conjugal partnership shall be governed b" the
rules on the contract of partnership in all that is not in conflict with
what is e-pressl" determined in this Chapter or b" the spouses in their
marriage settlements.
The rules on partnership shall be applied in a suppletory manner.
Art. 109. The following shall be the e-clusive propert" of each
spouse+
5'6 That which is brought to the marriage as his or her own3
546 That which each ac.uires during the marriage b" gratuitous
title3
576 That which is ac.uired b" right of redemption% b" barter or b"
e-change with propert" belonging to onl" one of the spouses3
and
5<6 That which is purchased with e-clusive mone" of the wife or of
the husband.
&rticle 11E enumerates the e'clusive property o# spouses9
1. Aroperty brought to the marriage as his or her own
.trictly spea+ing paraphernal property re#ers to the e'clusive
property o# the wi#e while capital is the e'clusive property o# the
husband.
2. Aroperty which each spouse ac-uires during the marriage by gratuitous
title
5ratuitous title is either9
1. =y succession
2. =y donation
&CA also has a similar provision.
. Aroperty which is ac-uired by right o# redemption, by barter or
e'change with property belonging to only one o# the spouses% and
&rticle 11E :; is illustrated as #ollows9 The wi#e owns e'clusively a
piece o# land. The wi#e sells such land with the right to repurchase
it. The wi#e redeems the money using con)ugal #unds. !nder
&rticle 11E :;, the property is still paraphernal as the right o#
redemption belongs to the wi#e. The #act that con)ugal #unds were
_
Art. //. The absolute community o# property between spouses shall commence at the
precise moment that the marriage is celebrated. &ny stipulation, e'press or implied, #or the
commencement o# the community regime at any other time shall be void.
_
Art. /2. No waiver o# rights, shares and e##ects o# the absolute community o# property
during the marriage can be made e'cept in case o# )udicial separation o# property.
"hen the waiver ta+es place upon a )udicial separation o# property, or a#ter the
marriage has been dissolved or annulled, the same shall appear in a public instrument and shall
be recorded as provided in &rticle CC. The creditors o# the spouse who made such waiver may
petition the court to rescind the waiver to the e'tent o# the amount su##icient to cover the
amount o# their credits.
used is irrelevant in that the wi#e must li-uidate such debt to the
common #und upon the li-uidation o# the property regime.
&nother illustration o# &rticle 11E :; is as #ollows9 The wi#e owns
e'clusively a lot in =F >omes in Q.C. The wi#e decides to sell the lot
and gets money in e'change. The money is paraphernal property.
$. Aroperty which is purchased with e'clusive money o# the wi#e or o# the
husband
The rule is the same #or &CA although there is no e'press provision.
Art. 110. The spouses retain the ownership% possession%
administration and enjo"ment of their e-clusive properties.
9ither spouse ma"% during the marriage% transfer the
administration of his or her e-clusive propert" to the other b" means
of a public instrument% which shall be recorded in the registr" of
propert" of the place the propert" is located.
Art. 111. A spouse of age ma" mortgage% encumber% alienate or
otherwise dispose of his or her e-clusive propert"% without the
consent of the other spouse% and appear alone in court to litigate with
regard to the same.
Art. 112. The alienation of an" e-clusive propert" of a spouse
administered b" the other automaticall" terminates the administration
over such propert" and the proceeds of the alienation shall be turned
over to the owner/spouse.
Art. 113. Propert" donated or left b" will to the spouses% jointl"
and with designation of determinate shares% shall pertain to the
donee/spouses as his or her own e-clusive propert"% and in the
absence of designation% share and share alike% without prejudice to the
right of accretion when proper.
Art. 114. ,f the donations are onerous% the amount of the
charges shall be borne b" the e-clusive propert" of the donee spouse%
whenever the" have been advanced b" the conjugal partnership of
gains.
Art. 115. *etirement benefits% pensions% annuities% gratuities%
usufructs and similar benefits shall be governed b" the rules on
gratuitous or onerous ac.uisitions as ma" be proper in each case.
Art. 116. All propert" ac.uired during the marriage% whether
the ac.uisition appears to have been made% contracted or registered in
the name of one or both spouses% is presumed to be conjugal unless
the contrar" is proved.
&resuption: &ll property ac-uired during marriage is presumed to be
con)ugal :but the contrary may be proved;.
Art. 117. The following are conjugal partnership properties+
5'6 Those ac.uired b" onerous title during the marriage at the
e-pense of the common fund% whether the ac.uisition be for
the partnership% or for onl" one of the spouses3
546 Those obtained from the labor% industr"% work or profession of
either or both of the spouses3
576 The fruits% natural% industrial% or civil% due or received during
the marriage from the common propert"% as well as the net
fruits from the e-clusive propert" of each spouse3
&ccording to Aro#essor =alane, &rticle 11C :; is inaccurate. There is no
problem i# the #ruits come #rom the con)ugal property. The problem arises
when the #ruits arise #rom the spouses separate properties. For #ruits
arising #rom the separate properties o# the spouses to be considered
con)ugal, one must loo+ at when the #ruits are due and not when the #ruits
are received.
For e'ample, & lends A 1,111,111 to = at 21N interest payable every
-uarter. = is supposed to pay interest on Barch, Mune, .ept, and *ec. =
did not pay the interest due on Barch. & gets married to C. = #inally pays
the interests #or the months o# Barch and Mune on Mune. The interest #or
Barch is e'clusive property while the interest #or Mune is con)ugal property.
The interest #or Barch is e'clusive property because the test is not when &
and C receives the #ruits. 7t is when the #ruits are due. 7n this case, the
#ruits were due on Barch be#ore the marriage between & and C. That is
why the interest #or Mune is con)ugal property.
5<6 The share of either spouse in the hidden treasure which the
law awards to the finder or owner of the propert" where the
treasure is found3
5)6 Those ac.uired through occupation such as fishing or hunting3
5A6 !ivestock e-isting upon the dissolution of the partnership in
e-cess of the number of each kind brought to the marriage b"
either spouse3 and
5B6 Those which are ac.uired b" chance% such as winnings from
gambling or betting. 8owever% losses therefrom shall be borne
e-clusivel" b" the loser/spouse.
Art. 118. Propert" bought on installments paid partl" from
e-clusive funds of either or both spouses and partl" from conjugal
funds belongs to the bu"er or bu"ers if full ownership was vested
before the marriage and to the conjugal partnership if such ownership
was vested during the marriage. ,n either case% an" amount advanced
b" the partnership or b" either or both spouses shall be reimbursed b"
the owner or owners upon li.uidation of the partnership.
&rticle 11D is actually &rticle 11C :D;.
7est: "hen did the ownership vest in the buyer( The source o# the #unds is
irrelevant.
For e'ample, & who is single, buys on installment a lot in Tagaytay. & has
to pay 41 monthly installments. The contract provides that ownership
would vest upon the #ull payment o# the installments. & had already paid
21 monthly installments. & gets married to =. &#ter that & pays the
remaining $1 monthly installments using con)ugal #unds. The property is
con)ugal #ollowing &rt. 11D. The #irst 21 monthly installments is a credit o#
& against the property regime. The converse is also true. The relevance o#
the #unds is only #or accounting purposes.
Art. 119. 0henever an amount or credit pa"able within a period
of time belongs to one of the spouses% the sums which ma" be
collected during the marriage in partial pa"ments or b" installments
on the principal shall be the e-clusive propert" of the spouse.
8owever% interests falling due during the marriage on the principal
shall belong to the conjugal partnership.
Art. 120. The ownership of improvements% whether for utilit" or
adornment% made on the separate propert" of the spouses at the
e-pense of the partnership or through the acts or efforts of either or
both spouses shall pertain to the conjugal partnership% or to the
original owner/spouse% subject to the following rules+
0hen the cost of the improvement made b" the conjugal
partnership and an" resulting increase in value are more than the
value of the propert" at the time of the improvement% the entire
propert" of one of the spouses shall belong to the conjugal
partnership% subject to reimbursement of the value of the propert" of
the owner/spouse at the time of the improvement3 otherwise% said
propert" shall be retained in ownership b" the owner/spouse% likewise
subject to reimbursement of the cost of the improvement.
,n either case% the ownership of the entire propert" shall be
vested upon the reimbursement% which shall be made at the time of
the li.uidation of the conjugal partnership.
This is +nown as reverse accession.
7n this situation, an improvement which is paid #or by con)ugal #unds is
built on land which is e'clusively owned by one o# the spouses.
7n ;altex vs. ?elias, the .upreme Court said that be#ore &rticle 121 could
be applied, it is essential that the land must be owned by one o# the
spouses be#ore the improvement is introduced.
The general rule is that the accessory #ollows the principal. Thus, normally
the improvement would #ollow the improvement. 7n &rticle 121, this is
may not be the case, and it may be that the land would #ollow the
improvement. Thats why its called reverse accession.
,ules9
1. ,everse accession 2 i# the cost o# the improvement and the plus value
are more than the value o# the principal property at the time o# the
improvement. Thus, the entire property becomes con)ugal.
For e'ample, a lot is worth A1,111,111. & structure worth AD11,111
was built. Thus, the total cost o# the separate property and the
improvement is A1,D11,111. >owever due to the building o# the
improvement, the value o# the entire property increases by
A11,111 < the plus value. Thus, the entire property is worth
A2,111,111. 7n this case, the entire property becomes con)ugal.
The cost o# the improvement :AD11,111; and the plus value
:A11,111; is more than the cost o# the land :A1,111,111;.
2. &ccession < i# the cost o# the improvement and the plus value are less
than the value o# the principal property at the time the improvement.
Thus, the entire property becomes e'clusive property o# the spouse.
. 0wnership o# the entire property shall vest on the owner2spouse or the
partnership as the case upon the reimbursement o# the improvement.
$. ,eimbursement time is the time o# the li-uidation o# the CA5.
3. The value to be paid at the li-uidation is the value at the time o# the
improvement :This overrules Padilla vs. Padilla;.
OAlus valueP re#ers to what the improvement contributes to the
increase in the value o# the whole thing.
&ro'le Areas:
1. .uppose the improvement is destroyed be#ore reimbursement. "ill
&rticle 121 apply( &rticle 121 applies only on the assumption that the
improvement e'ists at the time o# li-uidation. 7# the property is
destroyed be#ore the li-uidation, the &rticle 121 wont apply. 7n the
case o# Padilla vs. Paterno, the .C said that land never became
con)ugal because the con)ugal improvements were destroyed be#ore
payment could be e##ected.
2. *oes the vesting o# ownership in reverse accession retroact to the time
o# the building o# the improvement( The law is not clear.
Charges upon the Conjugal Partnership of Gains
The charges upon the CA5 are parallel to the charges on the &CA.
Art. 121. The conjugal partnership shall be liable for+
5'6 The support of the spouse% their common children% and
the legitimate children of either spouse3 however% the
support of illegitimate children shall be governed b" the
provisions of this Code on ?upport3
546 All debts and obligations contracted during the marriage
b" the designated administrator/spouse for the benefit
of the conjugal partnership of gains% or b" both spouses
or b" one of them with the consent of the other3
576 Debts and obligations contracted b" either spouse
without the consent of the other to the e-tent that the
famil" ma" have benefited3
5<6 All ta-es% liens% charges% and e-penses% including major
or minor repairs upon the conjugal partnership
propert"3
5)6 All ta-es and e-penses for mere preservation made
during the marriage upon the separate propert" of
either spouse3
There is no re-uirement here that it be used by the #amily since the
CA5 is the usu#ructuary o# the property.
5A6 9-penses to enable either spouse to commence or
complete a professional% vocational% or other activit" for
self/improvement3
5B6 Antenuptial debts of either spouse insofar as the" have
redounded to the benefit of the famil"3
5C6 The value of what is donated or promised b" both
spouses in favor of their common legitimate children for
the e-clusive purpose of commencing or completing a
professional or vocational course or other activit" for
self/improvement3 and
5D6 9-penses of litigation between the spouses unless the
suit is found to groundless.
,f the conjugal partnership is insufficient to cover the
foregoing liabilities% the spouses shall be solidaril" liable for the
unpaid balance with their separate properties.
The &rticles 122 to 123 have counterpart provisions in the &CA.
CPG P*#=,?,#2 C#>2T9*PA*T ACP P*#=,?,#2
Art. 122. The pa"ment of
personal debts contracted b" the
husband or the wife before or during
the marriage shall not be charged to
the conjugal properties partnership
e-cept insofar as the" redounded to
the benefit of the famil".
2either shall the fines and
pecuniar" indemnities imposed upon
them be charged to the partnership.
8owever% the pa"ment of
personal debts contracted b" either
spouse before the marriage% that of
fines and indemnities imposed upon
them% as well as the support of
illegitimate children of either spouse%
ma" be enforced against the
partnership assets after the
responsibilities enumerated in the
preceding Article have been covered% if
the spouse who is bound should have
no e-clusive propert" or if it should be
insufficient3 but at the time of the
li.uidation of the partnership% such
spouse shall be charged for what has
been paid for the purpose above/
mentioned.
Art. 94. The absolute
communit" of propert" shall be liable
for+
5D6 Antenuptial debts of either
spouse other than those
falling under paragraph 5B6 of
this Article% the support of
illegitimate children of either
spouse% and liabilities incurred
b" either spouse b" reason of
a crime or a .uasi/delict% in
case of absence or
insufficienc" of the e-clusive
propert" of the debtor/spouse%
the pa"ment of which shall be
considered as advances to be
deducted from the share of the
debtor/spouse upon
li.uidation of the communit"3
Art. 123. 0hatever ma" be lost
during the marriage in an" game of
chance or in betting% sweepstakes% or
an" other kind of gambling whether
permitted or prohibited b" law% shall
be borne b" the loser and shall not be
charged to the con6u/al partners"ip
but an" winnings therefrom shall form
part of the con6u/al partners"ip
propert!.

Art. 95. 0hatever ma" be lost
during the marriage in an" game of
chance% betting% sweepstakes% or an"
other kind of gambling% whether
permitted or prohibited b" law% shall
be borne b" the loser and shall not be
charged to the counit! but an"
winnings therefrom shall form part of
the counit! propert!.
Art. 124. The administration
and enjo"ment of the con6u/al
partners"ip shall belong to both
Art. DA. The administration
and enjo"ment of the counit!
propert! shall belong to both spouses
spouses jointl". ,n case of
disagreement% the husband:s decision
shall prevail% subject to recourse to the
court b" the wife for proper remed"%
which must be availed of within five
"ears from the date of the contract
implementing such decision.
,n the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
con6u/al properties% the other spouse
ma" assume sole powers of
administration. These powers do not
include disposition or encumbrance
without authorit" of the court or the
written consent of the other spouse. ,n
the absence of such authorit" or
consent% the disposition or
encumbrance shall be void. 8owever%
the transaction shall be construed as a
continuing offer on the part of the
consenting spouse and the third
person% and ma" be perfected as a
binding contract upon the acceptance
b" the other spouse or authori$ation
b" the court before the offer is
withdrawn b" either or both offerors.
jointl". ,n case of disagreement% the
husband:s decision shall prevail%
subject to recourse to the court b" the
wife for proper remed"% which must be
availed of within five "ears from the
date of the contract implementing such
decision.
,n the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
coon properties% the other spouse
ma" assume sole powers of
administration. These powers do not
include disposition or encumbrance
without authorit" of the court or the
written consent of the other spouse. ,n
the absence of such authorit" or
consent% the disposition or
encumbrance shall be void. 8owever%
the transaction shall be construed as a
continuing offer on the part of the
consenting spouse and the third
person% and ma" be perfected as a
binding contract upon the acceptance
b" the other spouse or authori$ation
b" the court before the offer is
withdrawn b" either or both offerors.
Art. 125. 2either spouse ma"
donate an" con6u/al partners"ip
propert! without the consent of the
other. 8owever% either spouse ma"%
without the consent of the other% make
moderate donations from the con6u/al
partners"ip propert! for charit" or on
occasions of famil" rejoicing or famil"
distress.
Art. 98. 2either spouse ma"
donate an" counit! propert!
without the consent of the other.
8owever% either spouse ma"% without
the consent of the other% make
moderate donations from the
counit! propert! for charit" or on
occasions of famil" rejoicing or famil"
distress.
The rules on dissolution are the same.
CPG P*#=,?,#2 C#>2T9*PA*T ACP P*#=,?,#2
Art. 126. The con6u/al
partners"ip terminates+
5'6 >pon the death of either
spouse3
546 0hen there is a decree of legal
separation3
576 0hen the marriage is annulled
or declared void3 or
5<6 ,n case of judicial separation
of propert" during the
marriage under Articles '7< to
'7C.
Art. 99. The a'solute
counit! terminates+
5'6 >pon the death of either
spouse3
546 0hen there is a decree of legal
separation3
576 0hen the marriage is annulled
or declared void3 or
5<6 ,n case of judicial separation
of propert" during the
marriage under Article '7< to
'7C.
8i+e &rticle EE :;, &rticle 124 :; is incorrect. The marriage regime in
a void marriage never e'isted. There is nothing to dissolve. The
special rules o# co2ownership shall govern.
Art. 127. The separation in fact
between husband and wife shall not
affect the regime of con6u/al
partners"ip$ e-cept that+
5'6 The spouse who leaves the
conjugal home or refuses to
live therein% without just
cause% shall not have the right
to be supported3
546 0hen the consent of one
spouse to an" transaction of
the other is re.uired b" law%
judicial authori$ation shall be
obtained in a summar"
proceeding3
576 ,n the absence of sufficient
con6u/al partners"ip propert!%
the separate propert" of both
spouses shall be solidaril"
liable for the support of the
famil". The spouse present
shall% upon petition in a
summar" proceeding% be given
judicial authorit" to administer
or encumber an" specific
separate propert" of the other
spouse and use the fruits or
proceeds thereof to satisf" the
latter(s share.
Art. 100. The separation in fact
between husband and wife shall not
affect the regime of a'solute
counit! e-cept that+
5'6 The spouse who leaves the
conjugal home or refuses to
live therein% without just
cause% shall not have the right
to be supported3
546 0hen the consent of one
spouse to an" transaction of
the other is re.uired b" law%
judicial authori$ation shall be
obtained in a summar"
proceeding3
576 ,n the absence of sufficient
counit! propert!% the
separate propert" of both
spouses shall be solidaril"
liable for the support of the
famil". The spouse present
shall% upon proper petition in a
summar" proceeding% be given
judicial authorit" to administer
or encumber an" specific
separate propert" of the other
spouse and use the fruits or
proceeds thereof to satisf" the
latter(s share.
Art. 128. ,f a spouse without
just cause abandons the other or fails
to compl" with his or her obligation to
the famil"% the aggrieved spouse ma"
petition the court for receivership% for
judicial separation of propert"% or for
authorit" to be the sole administrator
of the con6u/al partners"ip propert!%
subject to such precautionar"
conditions as the court ma" impose.
The obligations to the famil"
mentioned in the preceding paragraph
refer to marital% parental or propert"
relations.
A spouse is deemed to have
abandoned the other when he or she
has left the conjugal dwelling without
intention of returning. The spouse who
has left the conjugal dwelling for a
period of three months or has failed
within the same period to give an"
information as to his or her
whereabouts shall be pria .acie
presumed to have no intention of
returning to the conjugal dwelling.
Art. 101. ,f a spouse without
just cause abandons the other or fails
to compl" with his or her obligations to
the famil"% the aggrieved spouse ma"
petition the court for receivership% for
judicial separation of propert" or for
authorit" to be the sole administrator
of the a'solute counit!% subject to
such precautionar" conditions as the
court ma" impose.
The obligations to the famil"
mentioned in the preceding paragraph
refer to marital% parental or propert"
relations.
A spouse is deemed to have
abandoned the other when her or she
has left the conjugal dwelling without
intention of returning. The spouse who
has left the conjugal dwelling for a
period of three months or has failed
within the same period to give an"
information as to his or her
whereabouts shall be pria .acie
presumed to have no intention of
returning to the conjugal dwelling.
Art. 129. >pon the dissolution
of the con6u/al partners"ip re/ie% the
following procedure shall appl"+
5'6 An inventor" shall be
prepared% listing separatel" all
the properties of the con6u/al
partners"ip and the e-clusive
Art. 102. >pon dissolution of
the a'solute counit! re/ie% the
following procedure shall appl"+
5'6 An inventor" shall be
prepared% listing separatel" all
the properties of the a'solute
counit! and the e-clusive
546 Amounts advanced b" the
con6u/al partners"ip in
pa"ment of personal debts and
obligations of either spouse
shall be credited to the
con6u/al partners"ip as an
asset thereof.
576 9ach spouse shall be
reimbursed for the use of his
or her e-clusive funds in the
ac.uisition of propert" or for
the value of his or her
e-clusive propert"% the
ownership of which has been
vested b" law in the con6u/al
partners"ip.
5<6 The debts and obligations of
the con6u/al partners"ip shall
be paid out of the con6u/al
assets. ,n case of insufficienc"
of said assets% the spouses
shall be solidaril" liable for the
unpaid balance with their
separate properties% in
546 The debts and obligations of
the a'solute counit! shall
be paid out of its assets. ,n
case of insufficienc" of said
assets% the spouses shall be
solidaril" liable for the unpaid
balance with their separate
properties in accordance with
the provisions of the second
paragraph of Article D<.
576 0hatever remains of the
e-clusive properties of the
spouses shall thereafter be
delivered to each of them.
5<6 The net remainder of the
properties of the a'solute
counit! shall constitute its
net assets% which shall be
divided e.uall" between
husband and wife% unless a
different proportion or division
was agreed upon in the
marriage settlements% or
unless there has been a
accordance with the provisions
of paragraph 546 of Article
'4'.
5)6 0hatever remains of the
e-clusive properties of the
spouses shall thereafter be
delivered to each of them.
5A6 >nless the owner had been
indemnified from whatever
source% the loss or
deterioration of movables
voluntar" waiver of such share
provided in this Code. @or
purpose of computing the net
profits subject to forfeiture in
accordance with Articles <7%
2o. 546 and A7% 2o. 546% the
said profits shall be the
increase in value between the
market value of the
counit! propert! at the
time of the celebration of the
marriage and the market
used for the benefit of the
famil"% belonging to either
spouse% even due to fortuitous
event% shall be paid to said
spouse from the con6u/al
.un+s% if an".
5B6 The net remainder of the
con6u/al partners"ip
properties shall constitute the
profits% which shall be divided
e.uall" between husband and
value at the time of its
dissolution.
5)6 The presumptive legitimes of
the common children shall be
delivered upon partition% in
accordance with Article )'.
5A6 >nless otherwise agreed upon
b" the parties% in the partition
of the properties% the conjugal
dwelling and the lot on which
it is situated shall be
wife% unless a different
proportion or division was
agreed upon in the marriage
settlements or unless there
has been a voluntar" waiver
or forfeiture of such share as
provided in this Code.
5C6 The presumptive legitimes of
the common children shall be
delivered upon the partition in
accordance with Article )'.
adjudicated to the spouse
with whom the majorit" of the
common children choose to
remain. Children below the
age of seven "ears are deemed
to have chosen the mother%
unless the court has decided
otherwise. ,n case there in no
such majorit"% the court shall
decide% taking into
consideration the best
Professor Ruben F. Balane Pa)e -4 of +,-
5D6 ,n the partition of the
properties% the conjugal
dwelling and the lot on which
it is situated shall% unless
otherwise agreed upon b" the
parties% be adjudicated to the
spouse with whom the
majorit" of the common
children choose to remain.
Children below the age of
seven "ears are deemed to
have chosen the mother%
Professor Ruben F. Balane Pa)e -* of +,-
unless the court has decided
otherwise. ,n case there is no
such majorit"% the court shall
decide% taking into
consideration the best
&rticles 12E and 112 are counterparts although there are di##erences.
Art. 130. >pon the termination
of the marriage b" death% the con6u/al
Art. 103. >pon the termination
of the marriage b" death% the
Professor Ruben F. Balane Pa)e -. of +,-
partners"ip propert" shall be
li.uidated in the same proceeding for
the settlement of the estate of the
deceased.
,f no judicial settlement
proceeding is instituted% the surviving
spouse shall li.uidate the con6u/al
partners"ip propert! either judiciall"
or e-tra/judiciall" within si- months
from the death of the deceased
spouse. ,f upon the lapse of the si-/
counit! propert! shall be li.uidated
in the same proceeding for the
settlement of the estate of the
deceased.
,f no judicial settlement
proceeding is instituted% the surviving
spouse shall li.uidate the counit!
propert! either judiciall" or e-tra/
judiciall" within si- months from the
death of the deceased spouse. ,f upon
the lapse of the si- months period% no
Professor Ruben F. Balane Pa)e -+ of +,-
month period no li.uidation is made%
an" disposition or encumbrance
involving the con6u/al partners"ip
propert! of the terminated marriage
shall be void.
?hould the surviving spouse
contract a subse.uent marriage
without compliance with the foregoing
re.uirements% a mandator" regime of
complete separation of propert" shall
govern the propert" relations of the
li.uidation is made% an" disposition or
encumbrance involving the counit!
propert! of the terminated marriage
shall be void.
?hould the surviving spouse
contract a subse.uent marriage
without compliance with the foregoing
re.uirements% a mandator" regime of
complete separation of propert" shall
govern the propert" relations of the
subse.uent marriage.
Professor Ruben F. Balane Pa)e -/ of +,-
subse.uent marriage.
Art. 131. 0henever the
li.uidation of the con6u/al partners"ip
properties of two or more marriages
contracted b" the same person before
the effectivit" of this Code is carried
out simultaneousl"% the respective
capital% fruits and income of each
partners"ip shall be determined upon
such proof as ma" be considered
according to the rules of evidence. ,n
Art. 104. 0henever the
li.uidation of the counit!
properties of two or more marriages
contracted b" the same person before
the effectivit" of this Code is carried
out simultaneousl"% the respective
capital% fruits and income of each
counit! shall be determined upon
such proof as ma" be considered
according to the rules of evidence. ,n
Professor Ruben F. Balane Pa)e -, of +,-
case of doubt as to which partnership
the e-isting properties belong% the
same shall be divided between the
different partners"ips in proportion to
the capital and duration of each.
case of doubt as to which communit"
the e-isting properties belong% the
same shall be divided between the
different counities in proportion to
the capital and duration of each.
.teps in 8i-uidation
1. 7nventory o# the CA5 assets.
2. ,estitution o# advances made to each spouse :i.e. &rticle 122, ?
;
3. Aayment o# debts to each spouse :i.e. &rticle 121
;
$. Aayment o# obligations to
rd
parties
3. *elivery o# e'clusive properties
4. Aayment o# losses and deterioration o# movables belonging to each
spouse
C. *elivery o# presumptive legitimes
D. *ivision
D. 5eparation o. &ropert! o. t"e 5pouses an+ A+inistration o. *oon
&ropert! '! ,ne 5pouse Durin/ t"e 0arria/e
.eparation o# the property o# the spouses and the administration o#
common property by one spouse during the marriage can ta+e place in
both &CA and CA5.
& petition may be #iled #or the dissolution o# the &CA or the CA5 by9
1. Goth spouses+ voluntar" dissolution :&rticles 1$ and 14;
Art. 134. ,n the absence of an e-press declaration in the
marriage settlements% the separation of propert" between
spouses during the marriage shall not take place e-cept b"
judicial order. ?uch judicial separation of propert" ma" either
be voluntar" or for sufficient cause.
_
Art. )%% '(. >owever, the payment o# personal debts contracted by either spouse be#ore
the marriage, that o# #ines and indemnities imposed upon them, as well as the support o#
illegitimate children o# either spouse, may be en#orced against the partnership assets a#ter the
responsibilities enumerated in the preceding &rticle have been covered, i# the spouse who is
bound should have no e'clusive property or i# it should be insu##icient% but at the time o# the
li-uidation o# the partnership, such spouse shall be charged #or what has been paid #or the
purpose above2mentioned.
Art. )%0. The ownership o# improvements, whether #or utility or adornment, made on the
separate property o# the spouses at the e'pense o# the partnership or through the acts or
e##orts o# either or both spouses shall pertain to the con)ugal partnership, or to the original
owner2spouse, sub)ect to the #ollowing rules9
"hen the cost o# the improvement made by the con)ugal partnership and any resulting
increase in value are more than the value o# the property at the time o# the improvement, the
entire property o# one o# the spouses shall belong to the con)ugal partnership, sub)ect to
reimbursement o# the value o# the property o# the owner2spouse at the time o# the
improvement% otherwise, said property shall be retained in ownership by the owner2spouse,
li+ewise sub)ect to reimbursement o# the cost o# the improvement.
7n either case, the ownership o# the entire property shall be vested upon the
reimbursement, which shall be made at the time o# the li-uidation o# the con)ugal partnership.
Art. 136. The spouses ma" jointl" file a verified petition
with the court for the voluntar" dissolution of the absolute
communit" or the conjugal partnership of gains% and for the
separation of their common properties.
All creditors of the absolute communit" or of the conjugal
partnership of gains% as well as the personal creditors of the
spouse% shall be listed in the petition and notified of the filing
thereof. The court shall take measures to protect the creditors
and other persons with pecuniar" interest.
There are no need #or causes in a voluntary dissolution.
2. #ne spouse+ petition for sufficient cause :&rticle 13;
Art. 135. An" of the following shall be considered
sufficient cause for judicial separation of propert"+
5'6 That the spouse of the petitioner has been sentenced to
a penalt" which carries with it civil interdiction3
546 That the spouse of the petitioner has been judiciall"
declared an absentee3
576 That loss of parental authorit" of the spouse of
petitioner has been decreed b" the court3
5<6 That the spouse of the petitioner has abandoned the
latter or failed to compl" with his or her obligations to
the famil" as provided for in Article 'E'3
5)6 That the spouse granted the power of administration in
the marriage settlements has abused that power3 and
5A6 That at the time of the petition% the spouses have been
separated in fact for at least one "ear and reconciliation
is highl" improbable.
,n the cases provided for in 2umbers 5'6% 546 and 576% the
presentation of the final judgment against the guilt" or absent
spouse shall be enough basis for the grant of the decree of
judicial separation of propert".
Causes are re-uired #or a petition #or su##icient cause.
&rticle 13 :; must be ta+en in relation with &rticles 22E :$;
and
&rticles 21 and 22
.
`
Art. %%2. !nless subse-uently revived by a #inal )udgment, parental authority also
terminates9
:$; !pon #inal )udgment o# a competent court divesting the party concerned o# parental
authority%
`
Art. %(). The court in an action #iled #or the purpose in a related case may also suspend
parental authority i# the parent or the person e'ercising the same9
:1; Treats the child with e'cessive harshness or cruelty%
:2; 5ives the child corrupting orders, counsel or e'ample%
:; Compels the child to beg% or
:$; .ub)ects the child or allows him to be sub)ected to acts o# lasciviousness.
The grounds enumerated above are deemed to include cases which have resulted #rom
culpable negligence o# the parent or the person e'ercising parental authority.
The de#inition o# abandonment in &rticle 13 :$; is #ound in &rticles
111 and 12D
.
!nder &rticle 13 :4;, the spouse must wait #or 1 year. &#ter 1
year, the spouse can #ile the petition #or su##icient cause. &lso
reconciliation must be highly improbable.
The separation o# the property o# the spouses may not be done
e'tra)udicially even i# the spouses agree. Court intervention is necessary.
&#ter the decree o# separation, the parties can revert bac+ to their original
regime by #iling a motion in court :&rticle 1$1;.
Art. 137. #nce the separation of propert" has been decreed%
the absolute communit" or the conjugal partnership of gains shall be
li.uidated in conformit" with this Code.
During the pendenc" of the proceedings for separation of
propert"% the absolute communit" or the conjugal partnership shall
pa" for the support of the spouses and their children.
Art. 138. After dissolution of the absolute communit" or of the
conjugal partnership% the provisions on complete separation of
propert" shall appl".
Art. 139. The petition for separation of propert" and the final
judgment granting the same shall be recorded in the proper local civil
registries and registries of propert".
Art. 140. The separation of propert" shall not prejudice the
rights previousl" ac.uired b" creditors.
Art. 141. The spouses ma"% in the same proceedings where
separation of propert" was decreed% file a motion in court for a decree
reviving the propert" regime that e-isted between them before the
separation of propert" in an" of the following instances+
5'6 0hen the civil interdiction terminates3
546 0hen the absentee spouse reappears3
576 0hen the court% being satisfied that the spouse granted the
power of administration in the marriage settlements will not
again abuse that power% authori$es the resumption of said
administration3
7# the degree o# seriousness so warrants, or the wel#are o# the child so demands, the
court shall deprive the guilty party o# parental authority or adopt such other measures as may
be proper under the circumstances.
The suspension or deprivation may be revo+ed and the parental authority revived in a
case #iled #or the purpose or in the same proceeding i# the court #inds that the cause there#or
has ceased and will not be repeated.
Art. %(%. 7# the person e'ercising parental authority has sub)ected the child or allowed
him to be sub)ected to se'ual abuse, such person shall be permanently deprived by the court
o# such authority.
& spouse is deemed to have abandoned the other when her or she has le#t the con)ugal
dwelling without intention o# returning. The spouse who has le#t the con)ugal dwelling #or a
period o# three months or has #ailed within the same period to give any in#ormation as to his or
her whereabouts shall be prima #acie presumed to have no intention o# returning to the
con)ugal dwelling.
5<6 0hen the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the
other3
5)6 0hen parental authorit" is judiciall" restored to the spouse
previousl" deprived thereof3
5A6 0hen the spouses who have separated in fact for at least one
"ear% reconcile and resume common life3 or
5B6 0hen after voluntar" dissolution of the absolute communit" of
propert" or conjugal partnership has been judiciall" decreed
upon the joint petition of the spouses% the" agree to the
revival of the former propert" regime. 2o voluntar"
separation of propert" ma" thereafter be granted.
The revival of the former propert" regime shall be governed b"
Article AB.
7# separation was by voluntary dissolution, the parties may agree to revert
bac+ to their original property regime. >owever, i# they do so, no
voluntary separation o# property may be granted again.
Art. 142. The administration of all classes of e-clusive propert"
of either spouse ma" be transferred b" the court to the other spouse+
5'6 0hen one spouse becomes the guardian of the other3
546 0hen one spouse is judiciall" declared an absentee3
576 0hen one spouse is sentenced to a penalt" which carries with
it civil interdiction3 or
5<6 0hen one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
,f the other spouse is not .ualified b" reason of incompetence%
conflict of interest% or an" other just cause% the court shall appoint a
suitable person to be the administrator.
This article enumerates the instances when the court may trans#er the
administration o# all classes o# e'clusive property o# either spouse.
The #ollowing are the instances in when there can be a sole administrator
o# the con)ugal property9
1. 7# such is stipulated in the marriage settlement :&rticle C$
;
2. 7# the other spouse is unable to participate :&rticles E4, ?2 and 12$,
?2
@
;
Art. 1*. The property relationship between husband and wi#e shall be governed in the
#ollowing order9
:1; =y marriage settlements e'ecuted be#ore the marriage
*
7n the event that one spouse is incapacitated or otherwise unable to participate in the
administration o# the common :con)ugal; properties, the other spouse may assume sole
powers o# administration. These powers do not include disposition or encumbrance without
authority o# the court or the written consent o# the other spouse. 7n the absence o# such
authority or consent, the disposition or encumbrance shall be void. >owever, the transaction
shall be construed as a continuing o##er on the part o# the consenting spouse and the third
person, and may be per#ected as a binding contract upon the acceptance by the
other spouse or authori6ation by the court be#ore the o##er is withdrawn by either or
both o##erors.
Professor Ruben F. Balane Pa)e -- of +,-
3. The court may order such in case o# abandonment :&rticles 111 and
12D
;
$. 7# the spouses agree to such an arrangement during marriage.
>owever, in order to a##ect
rd
persons, such agreement must be
registered.
9. Re/ie o. 5eparation o. &ropert!
Art. 143. ?hould the future spouses agree in the marriage
settlements that their propert" relations during marriage shall be
governed b" the regime of separation of propert"% the provisions of
this Chapter shall be suppletor".
Art. 144. ?eparation of propert" ma" refer to present or future
propert" or both. ,t ma" be total or partial. ,n the latter case% the
propert" not agreed upon as separate shall pertain to the absolute
communit".
Art. 145. 9ach spouse shall own% dispose of% possess%
administer and enjo" his or her own separate estate% without need of
the consent of the other. To each spouse shall belong all earnings
from his or her profession% business or industr" and all fruits% natural%
industrial or civil% due or received during the marriage from his or her
separate propert".
Art. 146. Goth spouses shall bear the famil" e-penses in
proportion to their income% or% in case of insufficienc" or default
thereof% to the current market value of their separate properties.
The liabilities of the spouses to creditors for famil" e-penses
shall% however% be solidar".
@. &ropert! Re/ie o. 8nions 9it"out 0arria/e
&ccording to Aro#essor =alane, we should not use the term Ocommon2law
spousesP simply because we are not a common law country.
For &rticles 1$C and 1$D to apply, the persons living together as husband
and wi#e must still be o# di##erent se'es.
Art. 147. 0hen a man and a woman who are capacitated to
marr" each other% live e-clusivel" with each other as husband and wife
without the benefit of marriage or under a void marriage% their wages
and salaries shall be owned b" them in e.ual shares and the propert"
ac.uired b" both of them through their work or industr" shall be
governed b" the rules on co/ownership.
,n the absence of proof to the contrar"% properties ac.uired
while the" lived together shall be presumed to have been obtained b"
their joint efforts% work or industr"% and shall be owned b" them in
e.ual shares. @or purposes of this Article% a part" who did not
_
7# a spouse without )ust cause abandons the other or #ails to comply with his or her
obligations to the #amily, the aggrieved spouse may petition the court #or receivership, #or
)udicial separation o# property or #or authority to be the sole administrator o# the absolute
community :con)ugal partnership;, sub)ect to such precautionary conditions as the court may
impose.
participate in the ac.uisition b" the other part" of an" propert" shall
be deemed to have contributed jointl" in the ac.uisition thereof if the
former:s efforts consisted in the care and maintenance of the famil"
and of the household.
2either part" can encumber or dispose b" acts inter (i(os of his
or her share in the propert" ac.uired during cohabitation and owned
in common% without the consent of the other% until after the
termination of their cohabitation.
0hen onl" one of the parties to a void marriage is in good faith%
the share of the part" in bad faith in the co/ownership shall be
forfeited in favor of their common children. ,n case of default of or
waiver b" an" or all of the common children or their descendants%
each vacant share shall belong to the respective surviving
descendants. ,n the absence of descendants% such share shall belong
to the innocent part". ,n all cases% the forfeiture shall take place upon
termination of the cohabitation.
,e-uisites o# &rticle 1$C9
1. The man and the woman must have capacity to marry each other.
2. The man and the woman cohabit.
. The cohabitation is e'clusive.
$. The man and the woman are not married to each other or are married
to each other but the marriage is void.
!nder &rticle 1$C, the property regime between the man and the woman
would be special co2ownership.
The special co2ownership covers9
1. "ages and salaries o# either the man and the woman
2. Aroperty ac-uired through the wor+ or industry o# either or both
7# the partner did not ac-uire the property directly, that partnerGs
e##orts must consist o# the care and maintenance o# the #amily and
o# the household in order #or such party to own 1K2 o# the ac-uired
property.
7n 9axe8 vs. ;A, the .C said that the co2ownership arises even i#
the common2law wi#e does not wor+ is not gain#ully employed. The
common2law wi#e is still a co2owner since she ran the household
and held the #amily purse even i# she did not contribute thereto.
The di##erence between this special co2ownership and the ordinary co2
ownership is in &rticle 1$C, ?. 7n this special co2ownership, the #ollowing
cannot be done9
1. The co2ownership cannot be terminated until the cohabitation is also
terminated.
2. The co2owner may not dispose or encumber his share in the property.
Art. 148. ,n cases of cohabitation not falling under the
preceding Article% onl" the properties ac.uired b" both of the parties
through their actual joint contribution of mone"% propert"% or industr"
shall be owned b" them in common in proportion to their respective
contributions. ,n the absence of proof to the contrar"% their
contributions and corresponding shares are presumed to be e.ual. The
Professor Ruben F. Balane Pa)e *4* of +,-
same rule and presumption shall appl" to joint deposits of mone" and
evidences of credit.
,f one of the parties is validl" married to another% his or her
share in the co/ownership shall accrue to the absolute communit" or
conjugal partnership e-isting in such valid marriage. ,f the part" who
acted in bad faith is not validl" married to another% his or her shall be
forfeited in the manner provided in the last paragraph of the
preceding Article.
The foregoing rules on forfeiture shall likewise appl" even if
both parties are in both faith.
&rticle 1$D governs live2in partners who do not #all under &rticle 1$C.
&rticle 1$D will apply i#9
1. The live2in partners do not have the capacity to marry each other% or
/'ample o# this is that there is an impediment o# relationship, crime
or age.
2. The cohabitation is not e'clusive.
The special co2ownership only covers property ac-uired by both parties
through their actual )oint contribution o# money, property or industry. This
is very similar to an ordinary partnership.
7# a live2in partner is legally married to someone else, the share o# that
live2in partner will accrue to the property regime o# his or her e'isting valid
marriage.
7# the party who acted in bad #aith is not validly married to another his or
her share shall be #or#eited to their common children or descendants. 7n
the absence o# descendants, such share shall belong to the innocent party.
=II.T7e Fa3il9
Art. 149. The famil"% being the foundation of the nation% is a basic
social institution which public polic" cherishes and protects. Conse.uentl"%
famil" relations are governed b" law and no custom% practice or agreement
destructive of the famil" shall be recogni$ed or given effect.
This is merely a declaration o# policy.
Art. 150. @amil" relations include those+
5'6 Getween husband and wife3
546 Getween parents and children3
576 Among brothers and sisters% whether of the full or half/blood.
This is an e'clusive enumeration o# #amily members.
Art. 151. 2o suit between members of the same famil" shall prosper
unless it should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made% but that the same have failed.
,f it is shown that no such efforts were in fact made% the same case must be
dismissed.
This rules shall not appl" to cases which ma" not be the subject of
compromise under the Civil Code.
Professor Ruben F. Balane Pa)e *4. of +,-
General *ule+ For a suit between members o# the same #amily shall prosper the
#ollowing are re-uired9
1. /arnest e##orts towards a compromise have been made
2. .uch e##orts have #ailed
. .uch earnest e##orts and the #act o# #ailure must be alleged
"ithout these , the case will be dismissed.
Exception: Cases which cannot be compromised. :&rticle 213;
Art. 2035. 2o compromise upon the following .uestions shall be
valid+
5'6 The civil status of persons3
546 The validit" of a marriage or a legal separation3
576 An" ground for legal separation3
5<6 @uture support3
5)6 The jurisdiction of courts3
5A6 @uture legitime.
7n :a8on vs. :a8on, the .C said that &rticle 131 does not apply in the case o# in2
laws.
7n the case o# 9ag5aleta, the .C said that &rticle 131 does not apply i# non2#amily
members are to be sued as well.
=III. Fa3il9 Ho3e
Art. 152. The famil" home% constituted jointl" b" the husband and the
wife or b" an unmarried head of a famil"% is the dwelling house where the"
and their famil" reside% and the land on which it is situated.
Art. 153. The famil" home is deemed constituted on a house and lot
from the time it is occupied as a famil" residence. @rom the time of its
constitution and so long as an" of its beneficiaries actuall" resides therein%
the famil" home continues to be such and is e-empt from e-ecution% forced
sale or attachment e-cept as hereinafter provided and to the e-tent of the
value allowed b" law.
Art. 154. The beneficiaries of a famil" home are+
5'6 The husband and wife% or an unmarried person who is the head of a
famil"3 and
546 Their parents% ascendants% descendants% brothers and sisters%
whether the relationship be legitimate or illegitimate% who are living
in the famil" home and who depend upon the head of the famil" for
legal support.
Art. 155. The famil" home shall be e-empt from e-ecution% forced sale
or attachment e-cept+
5'6 @or nonpa"ment of ta-es3
546 @or debts incurred prior to the constitution of the famil" home3
Professor Ruben F. Balane Pa)e *4+ of +,-
576 @or debts secured b" mortgages on the premises before or after such
constitution3 and
5<6 @or debts due to laborers% mechanics% architects% builders%
materialmen and others who have rendered service or furnished
material for the construction of the building.
Art. 156. The famil" home must be part of the properties of the
absolute communit" or the conjugal partnership% or of the e-clusive
properties of either spouse with the latter:s consent. ,t ma" also be
constituted b" an unmarried head of a famil" on his or her own propert".
2evertheless% propert" that is the subject of a conditional sale on
installments where ownership is reserved b" the vendor onl" to guarantee
pa"ment of the purchase price ma" be constituted as a famil" home.
The purpose o# these provisions is to remove #rom the reach o# creditors the
residence in which the #amily members dwell < social )ustice underpinnings
The biggest change in the Family Code with regard to the #amily home is that the
constitution o# the #amily home shall be automatic once it is used as the #amily
dwelling.
General *ule+ The #amily home is e'empt #rom levy, attachment and e'ecution.
Exceptions:
1. Non2payment o# ta'es
2. For debts incurred prior to the constitution o# the #amily home
7# it were otherwise, then the antecedent creditors would be pre)udiced.
. For debts secured by mortgages on the premises be#ore or a#ter the
constitution
$. For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or #urnished material #or the construction o#
the building.
.ocial )ustice
Art. 157. The actual value of the famil" home shall not e-ceed% at the
time of its constitution% the amount of the three hundred thousand pesos in
urban areas% and two hundred thousand pesos in rural areas% or such
amounts as ma" hereafter be fi-ed b" law.
,n an" event% if the value of the currenc" changes after the adoption of
this Code% the value most favorable for the constitution of a famil" home
shall be the basis of evaluation.
@or purposes of this Article% urban areas are deemed to include
chartered cities and municipalities whose annual income at least e.uals that
legall" re.uired for chartered cities. All others are deemed to be rural areas.
The value provided #or &rticle 13C is unrealistic. &ccording to Aro#essor =alane,
the )udge should be given discretion and ad)ust it accordingly.
There is a limit in terms o# value provided #or by the law. 0therwise, debtors can
evade creditors by building very lu'urious homes.
Art. 158. The famil" home ma" be sold% alienated% donated% assigned
or encumbered b" the owner or owners thereof with the written consent of
Professor Ruben F. Balane Pa)e *4/ of +,-
the person constituting the same% the latter:s spouse% and a majorit" of the
beneficiaries of legal age. ,n case of conflict% the court shall decide.
This is a very dangerous article. !nder this article, the #amily home may not be
sold, alienated, donated, assigned or encumbered without the consent o# the
person constituting the same, the latterGs spouse and a ma)ority o# the
bene#iciaries :see &rticle 13$; who are o# legal age. There#ore, a ban+ must get
the consent o# ma)ority o# the bene#iciaries be#ore the #amily home may be
mortgaged. >ow is the ban+ supposed to +now who the bene#iciaries are( >ow is
the ban+ supposed to +now i# indeed the same is the #amily home( Finally, how is
the ban+ supposed to +now how many o# the bene#iciaries are o# legal age( The
title does not give you these pieces o# in#ormation. &ccording to Aro#essor =alane,
creditors must be a##orded some protection. This is also disadvantageous to the
owner since he may not sell the #amily home i# the bene#iciaries disagree.
Art. 159. The famil" home shall continue despite the death of one or
both spouses or of the unmarried head of the famil" for a period of ten "ears
or for as long as there is a minor beneficiar"% and the heirs cannot partition
the same unless the court finds compelling reasons therefor. This rule shall
appl" regardless of whoever owns the propert" or constituted the famil"
home.
The #amily home shall continue despite the death o# one or both spouses or o# the
unmarried head o# the #amily9
1. &s long as there is a minor bene#iciary still living in the home
2. /ven i# there is no minor bene#iciary, #or a period o# 11 years
7n this case, the heirs cannot partition the same unless the court #inds
compelling reasons. This rule shall apply regardless o# whoever owns the
property or constituted the #amily home.
Art. 160. 0hen a creditor whose claims is not among those mentioned
in Article ')) obtains a judgment in his favor% and he has reasonable
grounds to believe that the famil" home is actuall" worth more than the
ma-imum amount fi-ed in Article ')B% he ma" appl" to the court which
rendered the judgment for an order directing the sale of the propert" under
e-ecution. The court shall so order if it finds that the actual value of the
famil" home e-ceeds the ma-imum amount allowed b" law as of the time of
its constitution. ,f the increased actual value e-ceeds the ma-imum allowed
in Article ')B and results from subse.uent voluntar" improvements
introduced b" the person or persons constituting the famil" home% b" the
owner or owners of the propert"% or b" an" of the beneficiaries% the same
rule and procedure shall appl".
At the e-ecution sale% no bid below the value allowed for a famil"
home shall be considered. The proceeds shall be applied first to the amount
mentioned in Article ')B% and then to the liabilities under the judgment and
the costs. The e-cess% if an"% shall be delivered to the judgment debtor.
Art. 161. @or purposes of availing of the benefits of a famil" home as
provided for in this Chapter% a person ma" constitute% or be the beneficiar"
of% onl" one famil" home.
Art. 162. The provisions in this Chapter shall also govern e-isting
famil" residences insofar as said provisions are applicable.
Professor Ruben F. Balane Pa)e *4, of +,-
=I!. Paternit9 an& Filiation
Aaternity means the relationship or status o# a person with respect to his or her
child :paternity includes maternity;.
Filiation means the status o# a person with respect to his or her parents.
Aaternity and #iliation implies relationship.
Art. 163. The filiation of children ma" be b" nature or b" adoption.
2atural filiation ma" be legitimate or illegitimate.
2 types o# #iliation
1. Natural
a. 8egitimate
i. 8egitimate proper :&rticle 14$;
ii. 8egitimated :&rticles 14C21C2;
b. 7llegitimate :&rticles 143, 1C3, 1C4;
2. &doption :,.&. No. D332 :O*omestic &doption &ctP; and ,.&. No. D1$ :O7nter2
country &doption &ctP;;
Types o# 8egitimate Children
1. 8egitimate proper
2. 8egitimated
. &dopted
2 Types o# 7llegitimate Children
a. Children o# parents dis-uali#ied to marry each other at conception and
marriage.
b. Children o# parents -uali#ied to marry each other
0nly this +ind can be legitimated by subse-uent marriage.
Art. 164. Children conceived or born during the marriage of the
parents are legitimate.
Children conceived as a result of artificial insemination of the wife
with the sperm of the husband or that of a donor or both are likewise
legitimate children of the husband and his wife% provided% that both of them
authori$ed or ratified such insemination in a written instrument e-ecuted
and signed b" them before the birth of the child. The instrument shall be
recorded in the civil registr" together with the birth certificate of the child.
& legitimate child is one conceived 0, born during the marriage o# the parents.
&n innovation in the Family Code is the rule on arti#icial insemination.
"ays o# &rti#icial 7nsemination
i. >omologous arti#icial insemination
The husbandGs sperm is used. This is resorted to when the husband is
impotent but not sterile.
ii. >eterologous arti#icial insemination
The sperm o# another man is used. This is resorted to when the husband
has a low sperm count.
iii. Combined arti#icial insemination
& combination o# the husband and another manGs sperm is used. This is
resorted to #or psychological reasons. The husband would not +now which
sperm #ertili6ed the egg unless a *N& test is conducted. 7# the husband
+new that it was not his sperm, it may a##ect martial relations.
"hat i# the ovum o# another woman is used( This is +nown as in vitro
#ertili6ation. This in not included in the coverage o# the Family Code. &
conservative )udge will there#ore say that such child is illegitimate.
,e-uisites o# a Valid and 8egal &rti#icial 7nsemination
1. &uthori6ation or rati#ication o# the insemination by both husband and wi#e
&uthori6ation occurs be#ore the act. ,ati#ication occurs a#ter the act.
2. The authori6ation or rati#ication must be in writing
. The instrument must be e'ecuted and signed be#ore the childGs birth by both
the husband and the wi#e
"hat i# this is done a#ter the childGs birth( The law is silent.
Art. 165. Children conceived and born outside a valid marriage are
illegitimate% unless otherwise provided in this Code.
Art. 54. Children conceived or born before the judgment of annulment
or absolute nullit" of the marriage under Article 7A has become final and
e-ecutor" shall be considered legitimate. Children conceived or born of the
subse.uent marriage under Article )7 shall likewise be legitimate.
General *ule+ 7# the child is conceived &N* born outside a valid marriage, the
child is illegitimate.
Exceptions:
1. Children o# voidable marriages
2. Children o# a void marriage in 2 instances
a. Children conceived o# a marriage void under &rticle 4
b. Children conceived o# a marriage under &rticle 3
Art. 166. !egitimac" of a child ma" be impugned onl" on the following
grounds+
The presumption o# legitimacy is one o# the strongest presumptions +nown in law.
7t is a -uasi2conclusive presumption since such presumption can only be rebutted
by certain instances in &rticle 144.

5'6 That it was ph"sicall" impossible for the husband to have se-ual
intercourse with his wife within the first '4E da"s of the 7EE da"s
which immediatel" preceded the birth of the child because of+
5a6 the ph"sical incapacit" of the husband to have se-ual
intercourse with his wife3
5b6 the fact that the husband and wife were living separatel" in
such a wa" that se-ual intercourse was not possible3 or
5c6 serious illness of the husband% which absolutel" prevented
se-ual intercourse3
There must be a physical impossibility #or the husband and the wi#e to have se'ual
intercourse #or the 1
st
121 days preceding the childGs birth.
7# it ta+es 11 days #or a child to be born, #or a child to be illegitimate, it must be
shown the physical impossibility o# the husband and wi#e to have se' within the 1
st
121 days.
The physical impossibility must be #or the /NT7,/ 121 day period.
These periods are not arbitrary since scientists +now that in order #or a child to
survive, there must be a 4 month minimum period o# gestation.
Ahysical impossibility may be shown in ways
1. 7mpotence o# the husband
2. .pouses living separately
7# the husband is living in Ba+ati, and the wi#e is living in Q.C., this is not
what is contemplated by &rticle 144 :1;:b;.
7# the husband is living in Toronto, and the wi#e is living in Banila, then it
#alls under &rticle 144 :1;:b;.
7# one o# the spouses is in )ail, there is still the possibility o# se' since visits
are allowed.
. .erious illness which absolutely prevented se'
The illness must be such that se' is impossible :i.e. comatose;. T= is not
an illness which causes an impossibility to have se' (Andal vs. 9acaraig).
,.7E: 7n these instances, it is presumed that there is no arti#icial insemination.
&lso it is incumbent on the one impugning legitimacy that there could be no
access.
546 That it is proved that for biological or other scientific reasons% the
child could not have been that of the husband% e-cept in the instance
provided in the second paragraph of Article 'A<3 or
&rticle 144 :2; assumes that there is no physical impossibility. 0therwise, it
would #all under &rticle 144 :1;.
*N& tests can show whether or not the husband is the biological #ather o# the
child. 7n Lim vs. ;A, Mustice ,omero in a o5iter dictum said that *N& tests are not
yet accepted here.
576 That in case of children conceived through artificial insemination% the
written authori$ation or ratification of either parent was obtained
through mistake% fraud% violence% intimidation% or undue influence.
7n case o# arti#icial insemination, the written authori6ation or rati#ication was
procured by mista+e, #raud, violence, intimidation, or undue in#luence.
Art. 167. The child shall be considered legitimate although the mother
ma" have declared against its legitimac" or ma" have been sentenced as an
adulteress.
*espite the declaration o# the mother that the child is illegitimate or that she has
been declared an adulteress, the presumption o# legitimacy still stands. This is so
because in many instances, the woman wouldnGt +now who the #ather o# the child
is i# she had multiple partners. &lso, there are instances wherein a woman whose
marriage has turned sour will declare such in order to hurt the pride o# her
husband.
&resuptions:
1. Validity o# the marriage
2. That the child is o# the motherGs :#actual;
. That the child is that o# the husband
$. That the child was conceived during the marriage
Nos. and $ are hard to prove thatGs why presumptions come in.
Art. 168. ,f the marriage is terminated and the mother contracted
another marriage within three hundred da"s after such termination of the
former marriage% these rules shall govern in the absence of proof to the
contrar"+
5'6 A child born before one hundred eight" da"s after the solemni$ation
of the subse.uent marriage is considered to have been conceived
during the former marriage% provided it be born within three hundred
da"s after the termination of the former marriage3
546 A child born after one hundred eight" da"s following the celebration
of the subse.uent marriage is considered to have been conceived
during such marriage% even though it be born within the three
hundred da"s after the termination of the former marriage.
For the child to be considered the child o# the 1
st
husband, the #ollowing re-uisites
must concur9
1. The mother must have married again within 11 days #rom the termination o#
her #irst marriage
2. The child was born within the same 11 days a#ter the termination o# the
#ormer marriage o# its mother
. The child was born be#ore 1D1 days a#ter the solemni6ation o# its motherGs 2
nd
marriage
For the child to be considered the child o# the 2
nd
husband, the #ollowing re-uisites
must concur9
1. The mother must have married again within 11 days #rom the termination o#
the marriage
2. The child was born within the same 11 days a#ter the termination o# its
motherGs #irst marriage
$. The child was born a#ter 1D1 days #ollowing the solemni6ation o# its motherGs
second marriage
Professor Ruben F. Balane Pa)e *4- of +,-
Termination o# 1
st

marriage
Celebration o#
2
nd
marriage
1D1 days a#ter
celebration o# 2
nd

marriage
11 days a#ter
termination o# 1
st

marriage
Child o# the 1
st

marriage
Child o# the 2
nd

marriage
The #irst marriage must be terminated either by death or annulment. Can the
marriage re#er to a marriage under &rticle $2( No, since the terms o# this &rticle
provide that the #irst marriage is terminated. !nder &rticle $2, it is the 2
nd
marriage which is terminated.
Art. 170. The action to impugn the legitimac" of the child shall be
brought within one "ear from the knowledge of the birth or its recording in
the civil register% if the husband or% in a proper case% an" of his heirs% should
reside in the cit" or municipalit" where the birth took place or was recorded.
,f the husband or% in his default% all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was recorded% the
period shall be two "ears if the" should reside in the Philippines3 and three
"ears if abroad. ,f the birth of the child has been concealed from or was
unknown to the husband or his heirs% the period shall be counted from the
discover" or knowledge of the birth of the child or of the fact of registration
of said birth% whichever is earlier.
Art. 171. The heirs of the husband ma" impugn the filiation of the
child within the period prescribed in the preceding article onl" in the
following cases+
5'6 ,f the husband should died before the e-piration of the period fi-ed
for bringing his action3
546 ,f he should die after the filing of the complaint without having
desisted therefrom3 or
576 ,f the child was born after the death of the husband.
General *ule+ 0nly the husband can impugn the legitimacy o# the child.
Exception: The heirs o# the husband in the #ollowing cases
1. 7# the husband should die be#ore the e'piration o# the period #i'ed #or bringing
his action
2. 7# he should die a#ter the #iling o# the complaint without having desisted
there#rom or
. 7# the child was born a#ter the death o# the husband.
The husband or the heirs has the #ollowing years to impugn the legitimacy o# the
child9
1. 1 year #rom +nowledge o# the birth or its recording in the civil register, i# the
husband or in a proper case, any o# his heirs, should reside in the city or
municipality where the birth too+ place or recorded.
2. 2 years #rom +nowledge o# the birth or its recording in the civil register, i# the
husband or in a proper case, any o# his heirs, *0 N0T reside in the city or
municipality where the birth too+ place or recorded.
. years #rom +nowledge o# the birth or its recording in the civil register, i# the
husband or in a proper case, any o# his heirs, live abroad
,.7E: 7# the birth o# the child has been concealed or was un+nown to the
husband or his heirs, the period shall be counted #rom the discovery or +nowledge
o# the birth o# the child or o# the #act o# the registration o# the birth, whichever is
earlier.
'. &roo. o. )iliation
Professor Ruben F. Balane Pa)e **4 of +,-
Art. 172. The filiation of legitimate children is established b"
an" of the following+
5'6 The record of birth appearing in the civil register or a final
judgment3 or
546 An admission of legitimate filiation in a public document or a
private handwritten instrument and signed b" the parent
concerned.
,n the absence of the foregoing evidence% the legitimate filiation
shall be proved b"+
5'6 The open and continuous possession of the status of a
legitimate child3 or
546 An" other means allowed b" the *ules of Court and special
laws.
Aroo# o# #iliation o# a legitimate child is very liberal9
1. ,ecord o# birth
2. Final )udgment
. &dmission in a public document
$. &dmission in a private handwritten instrument and signed by the said
parents
3. 0pen and continuous possession o# the status o# a legitimate child
4. &ny other means allowed by the ,ules o# Court :i.e. baptismal
certi#icate, #amily bibles, common reputation respecting pedigree,
testimony o# witnesses, etc.;
Aroo# o# #iliation is very liberal because the law #avors legitimacy. 7t is
better to treat an illegitimate child as legitimate then to commit an error
and treat a legitimate child as an illegitimate.
Art. 173. The action to claim legitimac" ma" be brought b" the
child during his or her lifetime and shall be transmitted to the heirs
should the child die during minorit" or in a state of insanit". ,n these
cases% the heirs shall have a period of five "ears within which to
institute the action.
The right o# the child to bring an action to claim legitimacy does not
prescribe as long as he lives.
The child may bring such action even a#ter the li#etime o# his parents.
The right to #ile an action to claim legitimacy may be transmitted by the
child to the heirs should the child die during minority or die in a state o#
insanity or die during the pendency o# the case. 7# the right is transmitted
by the child to the heirs, then the heirs will have 3 years to bring the
action.
4. 3lle/itiate *"il+ren
The rules in the Family Code were meant to liberali6e the rules o# the NCC
on illegitimacy. 7n the NCC, recognition was necessary in order to a##ord
rights to the illegitimate child. !nder the Family Code, there is no need #or
recognition. Now, proo# o# illegitimacy is su##icient.
Professor Ruben F. Balane Pa)e *** of +,-
The rule now is that the manner in which children may prove their
legitimacy is also the same manner in which illegitimate children may prove
their #iliation :&rticle 1C3;.
The child may prove his illegitimate #iliation by bringing an action to claim
illegitimate #iliation. The child has until his li#etime to #ile such action
unless the action is based on the open and continuous possession by the
child o# the status o# an illegitimate child, or on other evidence allowed by
the ,ules o# Court. 7# the action is based on the open and continuous
possession by the child o# the status o# an illegitimate child, or on other
evidence allowed by the ,ules o# Court, then the action must be brought
within the li#etime o# the alleged parent.
Art. 176. ,llegitimate children shall use the surname and shall
be under the parental authorit" of their mother% and shall be entitled
to support in conformit" with this Code. The legitime of each
illegitimate child shall consist of one/half of the legitime of a
legitimate child. 9-cept for this modification% all other provisions in the
Civil Code governing successional rights shall remain in force.
The rights o# illegitimate children are not the same as the rights o# a
legitimate child.
&n illegitimate child shall use the surname o# the mother. /ven i# a couple,
wherein the man and the woman are capacitated to marry each other but
are not married, agree that the child shall use surname o# the man, this is
not allowed. &ll illegitimate children shall use the mothers surname.
Aarental authority resides in the mother alone.
The illegitimate child has the right o# support. The order o# pre#erence #or
legitimate and illegitimate children are not the same however.
&n illegitimate child is entitled to only Z he share o# a legitimate child.
7. :e/itiation
Art. 177. #nl" children conceived and born outside of wedlock
of parents who% at the time of the conception of the former% were not
dis.ualified b" an" impediment to marr" each other ma" be
legitimated.
Art. 178. !egitimation shall take place b" a subse.uent valid
marriage between parents. The annulment of a voidable marriage shall
not affect the legitimation.
,e-uisites o# 8egitimation9
1. The child is illegitimate :&rticle 1CC;.
2. The parents at the time o# the childs conception are not dis-uali#ied
#rom marrying each other :&rticle 1CC;.
7# the parents o# the child are 14 and 13 years old at the latters
conception, the child may not be legitimated.
. There is a valid marriage subse-uent to the childs birth :&rticle 1CD;
Professor Ruben F. Balane Pa)e **. of +,-
7# the marriage occurs be#ore the childs birth, then the child is
legitimate :&rticle 14$
;.
"hat i# the marriage which ta+es place a#ter the childs birth is a
voidable marriage( The child would still be legitimated. & voidable
marriage is still a valid one until it is declared void.
Art. 179. !egitimated children shall enjo" the same rights as
legitimate children.
Art. 180. The effects of legitimation shall retroact to the time of
the child:s birth.
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants.
Art. 182. !egitimation ma" be impugned onl" b" those who are
prejudiced in their rights% within five "ears from the time their cause
of action accrues.
<. Doestic A+option Act 1Repu'lic Act #o. 85522
The #ollowing are the important provisions9
a. LB :which superseded &rticles 1D21D4 o# the Family Code;
SECTION G. Who May Adopt. The following may adopt:
(a) A*, F)$)0)*- c)%)3e* -' $e.$ .e4 )* 0-""e"")-* -' '1$$ c)5)$ c0c)%,
*+ $e.$ ().#%"4 -' .--+ /-($ c#(c%e(4 #" *-% 2ee* c-*5)c%e+ -'
*, c()/e )*5-$5)*. /-($ %1(0)%1+e4 e/-%)-*$$, *+ 0",c#-$-.)c$$,
c02$e -' c()*. '-( c#)$+(e*4 % $e"% ");%ee* A18C ,e(" -$+e( %#*
%#e +-0%ee4 *+ !#- )" )* 0-")%)-* %- "100-(% *+ c(e '-( #)"J#e(
c#)$+(e* )* &ee0)*. !)%# %#e /e*" -' %#e '/)$,. T#e (eI1)(e/e*% -'
");%ee* A18C ,e( +)''e(e*ce 2e%!ee* %#e .e -' %#e +-0%e( *+
+-0%ee /, 2e !)5e+ !#e* %#e +-0%e( )" %#e 2)-$-.)c$ 0(e*% -'
%#e +-0%ee4 -( )" %#e "0-1"e -' %#e +-0%eeK" 0(e*%>
(b) A*, $)e* 0-""e"")*. %#e "/e I1$)')c%)-*" " 2-5e "%%e+ '-(
F)$)0)*- *%)-*$"@ Provided, That his/her country has
diplomatic relations with the Republic of the
Philippines, that he/she has been living in the
Philippines for at least three (3 continuous years
prior to the filing of the application for adoption
and maintains such residence until the adoption decree
is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity
to adopt in his/her country, and that his/her
government allows the adoptee to enter his/her country
as his/her adopted son/daughter: Provided, Further,
That the re!uirements on residency and certification
of the alien"s !ualification to adopt in his/her
country may be waived for the following:
(i) '-(/e( F)$)0)*- c)%)3e* !#- "ee&" %- +-0% (e$%)5e !)%#)* %#e
'-1(%# AD%#C +e.(ee -' c-*"*.1)*)%, -( '')*)%,> -(
_
Art. )&* '). Children conceived or born during the marriage o# the parents are legitimate.
Professor Ruben F. Balane Pa)e **+ of +,-
(ii) -*e !#- "ee&" %- +-0% %#e $e.)%)/%e "-*J+1.#%e( -' #)"J#e(
F)$)0)*- "0-1"e> -(
(iii) -*e !#- )" /(()e+ %- F)$)0)*- c)%)3e*
*+ "ee&" %- +-0% B-)*%$, !)%# #)"J#e( "0-1"e (e$%)5e !)%#)*
%#e '-1(%# AD%#C +e.(ee -' c-*"*.1)*)%, -( '')*)%, -' %#e F)$)0)*-
"0-1"e> -(
AcC T#e .1(+)* !)%# (e"0ec% %- %#e !(+ '%e( %#e %e(/)*%)-* -' %#e
.1(+)*"#)0 *+ c$e(*ce -' #)"J#e( ')**c)$ cc-1*%2)$)%)e".
H1"2*+ *+ !)'e "#$$ B-)*%$, +-0%4 e;ce0% )* %#e '-$$-!)*. c"e"@
(i) )' -*e "0-1"e "ee&" %- +-0% %#e $e.)%)/%e "-*J+1.#%e( -' %#e
-%#e(> -(
(ii) )' -*e "0-1"e "ee&" %- +-0% #)"J#e( -!* )$$e.)%)/%e "-*J+1.#%e(@
Provided, However, that the other spouse has signified
his/her consent thereto# or
(iii) )' %#e "0-1"e" (e $e.$$, "e0(%e+ '(-/
ec# -%#e(.
I* c"e #1"2*+ *+ !)'e B-)*%$, +-0%4 -( -*e "0-1"e +-0%" %#e
)$$e.)%)/%e "-*J+1.#%e( -' %#e -%#e(4 B-)*% 0(e*%$ 1%#-()%, "#$$ 2e
e;e(c)"e+ 2, %#e "0-1"e".
b. LC :which superseded &rticle 1DC o# the Family Code;
SECTION 7. Who May Be Adopted. The following may be
adopted:
(a) A*, 0e("-* 2e$-! e).#%ee* A17C ,e(" -' .e !#- #" 2ee*
+/)*)"%(%)5e$, -( B1+)c)$$, +ec$(e+ 5)$2$e '-( +-0%)-*>
(b) T#e $e.)%)/%e "-*J+1.#%e( -' -*e "0-1"e 2, %#e -%#e( "0-1"e>
(c) A* )$$e.)%)/%e "-*J+1.#%e( 2, I1$)')e+ +-0%e( %- )/0(-5e
#)"J#e( "%%1" %- %#% -' $e.)%)/c,>
(d) A 0e("-* -' $e.$ .e )'4 0()-( %- %#e +-0%)-*4 ")+ 0e("-* #" 2ee*
c-*")"%e*%$, c-*")+e(e+ *+ %(e%e+ 2, %#e +-0%e(A"C " #)"J#e( -!*
c#)$+ ")*ce /)*-()%,>
(e) A c#)$+ !#-"e +-0%)-* #" 2ee* 0(e5)-1"$, (e"c)*+e+> -(
A c#)$+ !#-"e 2)-$-.)c$ -( +-0%)5e 0(e*%A"C #" +)e+@ Provided,
That no proceedings shall be initiated within si$ (% months
from the time of death of said parent(s&
c. LD :which superseded &rticle 1DD o# the Family Code;
SECTION H. Whose Consent is Necessary to the Adoption&
'fter being properly counseled and informed of his/her right
to give or withhold his/her approval of the adoption, the
written consent of the following to the adoption is hereby
re!uired:
AC T#e +-0%ee4 )' %e* A10C ,e(" -' .e -( -5e(>
A2C T#e 2)-$-.)c$ 0(e*%A"C -' %#e c#)$+4 )' &*-!*4 -( %#e $e.$ .1(+)*4
-( %#e 0(-0e( .-5e(*/e*% )*"%(1/e*%$)%, !#)c# #" $e.$ c1"%-+, -'
%#e c#)$+>
AcC T#e $e.)%)/%e *+ +-0%e+ "-*"J+1.#%e("4 %e* A10C ,e(" -' .e -(
-5e(4 -' %#e +-0%e(A"C *+ +-0%ee4 )' *,>
Professor Ruben F. Balane Pa)e **/ of +,-
A+C T#e )$$e.)%)/%e "-*"J+1.#%e("4 %e* A10C ,e(" -' .e -( -5e(4 -' %#e
+-0%e( )' $)5)*. !)%# ")+ +-0%e( *+ %#e $%%e(K" "0-1"e4 )' *,> *+
AeC T#e "0-1"e4 )' *,4 -' %#e 0e("-* +-0%)*. -( %- 2e +-0%e+.
d. LL'A/'C :which superseded &rt. 1DE and 1E1 o# the Family Code;
SECTION 18. Parental Authority. ($cept in cases where
the biological parent is the spouse of the adopter, all
legal ties between the biological parent(s and the adoptee
shall be severed and the same shall then be vested on the
adopter(s&

SECTION 1G. @egitimacy% B T#e +-0%ee "#$$ 2e c-*")+e(e+ %#e
$e.)%)/%e "-*J+1.#%e( -' %#e +-0%e(A"C '-( $$ )*%e*%" *+ 01(0-"e" *+ "
"1c# )" e*%)%$e+ %- $$ %#e ().#%" *+ -2$).%)-*" 0(-5)+e+ 2, $! %- $e.)%)/%e
"-*"J+1.#%e(" 2-(* %- %#e/ !)%#-1% +)"c()/)*%)-* -' *, &)*+. T- %#)"
e*+4 %#e +-0%ee )" e*%)%$e+ %- $-5e4 .1)+*ce4 *+ "100-(% )* &ee0)*. !)%#
%#e /e*" -' %#e '/)$,.
SECTION 17. Succession. )n legal and intestate
succession, the adopter(s and the adoptee shall have
reciprocal rights of succession without distinction from
legitimate filiation& *owever, if the adoptee and his/her
biological parent(s had left a will, the law on
testamentary succession shall govern&
e. L'D :which superseded &rt. 1E1 and 1E2 o# the Family Code;
SECTION 1H. Grounds or !escission o Adoption. +pon
petition of the adoptee, with the assistance of the
,epartment if a minor or if over eighteen (-. years of age
but is incapacitated, as guardian/counsel, the adoption may
be rescinded on any of the following grounds committed by
the adopter(s: (a repeated physical and verbal
maltreatment by the adopter(s despite having undergone
counseling# (b attempt on the life of the adoptee# (c
se$ual assault or violence# or (d abandonment and failure
to comply with parental obligations&
A+-0%)-*4 2e)*. )* %#e 2e"% )*%e(e"% -' %#e c#)$+4 "#$$ *-% 2e "12Bec%
%- (e"c)"")-* 2, %#e +-0%e(A"C. H-!e5e(4 %#e +-0%e(A"C /, +)")*#e()% %#e
+-0%ee '-( c1"e" 0(-5)+e+ )* A(%)c$e H1H -' %#e C)5)$ C-+e.
f. L4E :which superseded &rt. 1E o# the Family Code;
/(0T)12 34& "ects o !escission. )f the petition
is granted, the parental authority of the adoptee"s
biological parent(s, if 5nown, or the legal custody of the
,epartment shall be restored if the adoptee is still a minor
or incapacitated& The reciprocal rights and obligations of
the adopter(s and the adoptee to each other shall be
e$tinguished&
T#e c-1(% "#$$ -(+e( %#e C)5)$ Re.)"%(( %- c*ce$ %#e /e*+e+
ce(%)')c%e -' 2)(%# -' %#e +-0%ee *+ (e"%-(e #)"J#e( -().)*$ 2)(%#
ce(%)')c%e.
S1cce"")-* ().#%" "#$$ (e5e(% %- )%" "%%1" 0()-( %- +-0%)-*4 21% -*$,
" -' %#e +%e -' B1+./e*% -' B1+)c)$ (e"c)"")-*. Ve"%e+ ().#%" cI1)(e+
0()-( %- B1+)c)$ (e"c)"")-* "#$$ 2e (e"0ec%e+.
Professor Ruben F. Balane Pa)e **, of +,-
A$$ %#e '-(e.-)*. e''ec%" -' (e"c)"")-* -' +-0%)-* "#$$ 2e !)%#-1%
0(eB1+)ce %- %#e 0e*$%)e" )/0-"2$e 1*+e( %#e Pe*$ C-+e )' %#e c()/)*$
c%" (e 0(-0e($, 0(-5e*.
Can an adopted child continue to be an heir o# his biological parents(
!nder &rticle 1DE o# the Family Code, the adopted child was still an heir o#
his blood relatives. >owever, &rticle 1DE o# the Family Code was
superseded by JJ1421D o# ,.&. No. D332. ,.&. No. D332 is silent on this
point. &ccording to Aro#essor =alane, one cannot use J14 as the basis #or
saying that the adopted child cannot inherit #rom his biological parents.
J14 only tal+s about parental authority. There is no re#erence to
succession.
=!. Su''ort
Art. 194. ?upport compromises ever"thing indispensable for
sustenance% dwelling% clothing% medical attendance% education and
transportation% in keeping with the financial capacit" of the famil".
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some
profession% trade or vocation% even be"ond the age of majorit".
Transportation shall include e-penses in going to and from school% or to and
from place of work.
.upport comprises everything indispensable #or sustenance, dwelling, clothing,
medical attendance, education, and transportation, in +eeping with the #inancial
capacity o# the #amily.
Iinds o# .upport
1. 8egal < that which is re-uired to be given by law
2. Mudicial < that which is re-uired to be given by court order whether pendente
lite or in a #inal )udgment
. Voluntary or Conventional < by agreement
&n e'ample o# conventional support is as #ollow. T donates land to H.
>owever T imposes a mode < H has to support Ts mother.
Characteristics o# .upport
1. Aersonal
2. 7ntransmissible
. Not sub)ect to waiver or compensation with regard to #uture support
.upport in arrears can be waived.
4. /'empt #rom attachment or e'ecution :&rticle 213
;
3. ,eciprocal on the part o# those who are by law bound to support each other
:&rticle 1E3;
6. Variable :&rticles 211 and 212
;
Art. 195. ?ubject to the provisions of the succeeding articles% the
following are obliged to support each other to the whole e-tent set forth in
the preceding article+
5'6 The spouses3
546 !egitimate ascendants and descendants3
576 Parents and their legitimate children and the legitimate and
illegitimate children of the latter3
5<6 Parents and their illegitimate children and the legitimate and
illegitimate children of the latter3 and
5)6 !egitimate brothers and sisters% whether of full or half/blood
Art. 196. Grothers and sisters not legitimatel" related% whether of the
full or half/blood% are likewise bound to support each other to the full e-tent
set forth in Article 'D<% e-cept onl" when the need for support of the brother
or sister% being of age% is due to a cause imputable to the claimant:s fault or
negligence.
7llegitimate siblings, whether o# #ull or hal# blood, are bound to support each
other. >owever, they need not give support to an illegitimate, emancipated
sibling whose need #or support is imputable to his #ault or negligence.
Art. 199. 0henever two or more persons are obliged to give support%
the liabilit" shall devolve upon the following persons in the order herein
provided+
5'6 The spouse3
546 The descendants in the nearest degree3
576 The ascendants in the nearest degree3 and
5<6 The brothers and sisters.
&rticle 1EE is important because it establishes the order o# pre#erence #or the
givers o# support. "hen a relative needs support, there are many relatives one
_
Art. %0$. The right to receive support under this Title as well as any money or property
obtained as such support shall not be levied upon on attachment or e'ecution.
_
Art. %0). The amount o# support, in the cases re#erred to in &rticles 1E3 and 1E4, shall be in
proportion to the resources or means o# the giver and to the necessities o# the recipient.
Art. %0%. .upport in the cases re#erred to in the preceding article shall be reduced or
increased proportionately, according to the reduction or increase o# the necessities o# the
recipient and the resources or means o# the person obliged to #urnish the same.
can go a#ter. That relative in need cannot choose but must #ollow the order
established in this &rticle 1EE.
7# a parent needs support #rom his children, that parent may chose any o# the
children. &ll o# the children are solidarily liable.
Art. 200. 0hen the obligation to give support falls upon two or more
persons% the pa"ment of the same shall be divided between them in
proportion to the resources of each.
8owever% in case of urgent need and b" special circumstances% the
judge ma" order onl" one of them to furnish the support provisionall"%
without prejudice to his right to claim from the other obligors the share due
from them.
0hen two or more recipients at the same time claim support from one
and the same person legall" obliged to give it% should the latter not have
sufficient means to satisf" all claims% the order established in the preceding
article shall be followed% unless the concurrent obligees should be the spouse
and a child subject to parental authorit"% in which case the child shall be
preferred.
&rticle 211 establishes the order o# pre#erence #or recipients. "hen several
relatives come to a particular relative #or support, the relative who will give
support must #ollow &rticle 211.
7# the relative who will give support has enough, he must give all those
enumerated in &rticle 1EE. 7# the relative does not have enough, then the
hierarchy enumerated in &rticle 1EE must be #ollowed.
&n minor who is an illegitimate child as+s support #rom his #ather. This
illegitimate child will not be pre#erred over the spouse o# the #ather. Those who
will be pre#erred over the spouse o# the #ather are those children who are sub)ect
to the #athers parental authority. 7n this case, since the child is illegitimate, the
#ather has no parental authority. The illegitimate child will be behind legitimate
children and the spouse o# his parent. 7llegitimate children are in &rticle 1EE :2;
since there is no distinction between legitimate and illegitimate.
Art. 201. The amount of support% in the cases referred to in Articles
'D) and 'DA% shall be in proportion to the resources or means of the giver
and to the necessities of the recipient.
Art. 202. ?upport in the cases referred to in the preceding article shall
be reduced or increased proportionatel"% according to the reduction or
increase of the necessities of the recipient and the resources or means of the
person obliged to furnish the same.
.upport shall always be in proportion to the means o# the giver and the
necessities o# the recipient.
There is no res "udicata as to the amount o# support to be given since support is
variable.
Art. 203. The obligation to give support shall be demandable from the
time the person who has a right to receive the same needs it for
maintenance% but it shall not be paid e-cept from the date of judicial or
e-trajudicial demand.
?upport pen+ente lite ma" be claimed in accordance with the *ules of
Court.
Pa"ment shall be made within the first five da"s of each corresponding
month or when the recipient dies% his heirs shall not be obliged to return
what he has received in advance.
.upport is demandable #rom the time the person who has the right to receive it
needs it. >owever, it is payable only #rom )udicial or e'tra)udicial demand.
0n &pril 1, T needed support #rom his #ather. .ince T is too proud, T doesnt as+.
0n Muly 1, T goes to his #ather and as+s him #or support. The #ather re#uses. 0n
.ept. 1, T #iles an action #or support. 0n 0ct. 1, the court renders )udgment in
#avor o# T. "hen is the #ather obliged to give support( Muly 1 since there was
e'tra)udicial demand.
Art. 204. The person obliged to give support shall have the option to
fulfill the obligation either b" pa"ing the allowance fi-ed% or b" receiving and
maintaining in the famil" dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral or
legal obstacle thereto.
The person obliged to render support may #ul#ill his obligation in 2 ways at his
option9
1. Aaying the amount #i'ed or
2. ,eceiving and maintaining in the #amily dwelling the person who has a right to
receive support
This 2
nd
option cannot be availed o# when there is a moral or legal obstacle.
For e'ample, a husband in supporting his wi#e, cannot choose the 2
nd
option i# he had been maltreating her (:oitia vs. ;ampos Rueda).
Art. 205. The right to receive support under this Title as well as an"
mone" or propert" obtained as such support shall not be levied upon on
attachment or e-ecution.
Art. 206. 0hen% without the knowledge of the person obliged to give
support% it is given b" a stranger% the latter shall have a right to claim the
same from the former% unless it appears that he gave it without intention of
being reimbursed.
Art. 207. 0hen the person obliged to support another unjustl" refuses
or fails to give support when urgentl" needed b" the latter% an" third person
ma" furnish support to the need" individual% with right of reimbursement
from the person obliged to give support. This Article shall particularl" appl"
when the father or mother of a child under the age of majorit" unjustl"
refuses to support or fails to give support to the child when urgentl" needed.
Art. 208. ,n case of contractual support or that given b" will% the
e-cess in amount be"ond that re.uired for legal support shall be subject to
lev" on attachment or e-ecution.
@urthermore% contractual support shall be subject to adjustment
whenever modification is necessar" due to changes of circumstances
manifestl" be"ond the contemplation of the parties.
=!I. Parental Aut7orit9
Professor Ruben F. Balane Pa)e **- of +,-
Aarental authority comes #rom patria potestas which means the #athers power.
The woman was always dependent on a male #igure whether it be her husband,
her #ather or her son.
7n ,oman 8aw, patria potestas e'tended even to li#e and death. This power was
granted to the #ather in order to +eep his #amily in chec+. Now, the present
concept o# parental authority is no longer #ocused on the power aspect. ,ather,
the #ocus o# parental authority is the obligational aspect. Aarental authority is
given to the parents over their children in order #or the children to be reared
properly. The #ocus is on the child and the childs wel#are.
Art. 209. Pursuant to the natural right and dut" of parents over the
person and propert" of their unemancipated children% parental authorit" and
responsibilit" shall include the caring for and rearing them for civic
consciousness and efficienc" and the development of their moral% mental and
ph"sical character and well/being.
Aarental authority terminates at the age o# 1D. This e'tends to both parental
authority over the person and the property o# the child.
Art. 210. Parental authorit" and responsibilit" ma" not be renounced
or transferred e-cept in the cases authori$ed b" law.
Art. 211. The father and the mother shall jointl" e-ercise parental
authorit" over the persons of their common children. ,n case of
disagreement% the father:s decision shall prevail% unless there is a judicial
order to the contrar".
Children shall alwa"s observe respect and reverence towards their
parents and are obliged to obe" them as long as the children are under
parental authorit".
Aarental authority is )oint. 7n case o# disagreement, the husbands decision
prevails. >owever, the wi#e can go to court.
For illegitimate children, parental authority is not )oint. 7t is with the mother
Art. 212. ,n case of absence or death of either parent% the parent
present shall continue e-ercising parental authorit". The remarriage of the
surviving parent shall not affect the parental authorit" over the children%
unless the court appoints another person to be the guardian of the person or
propert" of the children.
Art. 213. ,n case of separation of the parents% parental authorit" shall
be e-ercised b" the parent designated b" the Court. The Court shall take into
account all relevant considerations% especiall" the choice of the child over
seven "ears of age% unless the parent chosen is unfit.
The 2
nd
paragraph o# &rticle 21 provides that no child under C years o# age shall
be separated #rom the mother, unless the court #inds compelling reasons to order
otherwise.
7n earlier cases, the mother was almost always the custodian o# a child who is
below C years. There is a trend o# liberali6ing this. Courts will always loo+ at the
best interest o# the child as the criterion.
Professor Ruben F. Balane Pa)e *.4 of +,-
Art. 214. ,n case of death% absence or unsuitabilit" of the parents%
substitute parental authorit" shall be e-ercised b" the surviving
grandparent. ,n case several survive% the one designated b" the court% taking
into account the same consideration mentioned in the preceding article% shall
e-ercise the authorit".
Art. 215. 2o descendant shall be compelled% in a criminal case% to
testif" against his parents and grandparents% e-cept when such testimon" is
indispensable in a crime against the descendant or b" one parent against the
other.
&rticle 213 applies only in criminal cases and N0T in a civil case.
General *ule+ & descendant cannot be compelled in a criminal case to testi#y
against his parents and grandparents.
Exception: & descendant can be compelled i# such testimony is indispensable in
a crime against a descendant or by one parent against the other.
,.7E: The criminal case need not be #iled by the descendant or the parent. 7t
may be #iled by a
rd
person. &lso, this rule applies only to compulsory testimony.
7t does not apply to voluntary testimony. Thus, the descendant can volunteer i#
he wants to.
Art. 216. ,n default of parents or a judiciall" appointed guardian% the
following person shall e-ercise substitute parental authorit" over the child in
the order indicated+
5'6 The surviving grandparent% as provided in Art. 4'<3
546 The oldest brother or sister% over twent"/one "ears of age% unless
unfit or dis.ualified3 and
576 The child:s actual custodian% over twent"/one "ears of age% unless
unfit or dis.ualified.
0henever the appointment or a judicial guardian over the propert" of
the child becomes necessar"% the same order of preference shall be
observed.
7n de#ault o# the parents or a )udicial guardian, substitute parental authority over
the child shall be e'ercised in the order indicated9
1. The surviving grandparent
7# there are several grandparents, then the guardian shall be the one
designated by the court pursuant to &rticles 21 and 21$
2. The oldest brother or sister, over 21 years old, unless un#it or dis-uali#ied
. The childs actual custodian, over 21 years old, unless un#it or dis-uali#ied
This custodian need not be a relative o# the child, but he or she must have
actual custody.
Art. 217. ,n case of foundlings% abandoned neglected or abused
children and other children similarl" situated% parental authorit" shall be
entrusted in summar" judicial proceedings to heads of children:s homes%
orphanages and similar institutions dul" accredited b" the proper
government agenc".
Art. 218. The school% its administrators and teachers% or the
individual% entit" or institution engaged in child are shall have special
Professor Ruben F. Balane Pa)e *.* of +,-
parental authorit" and responsibilit" over the minor child while under their
supervision% instruction or custod".
Authorit" and responsibilit" shall appl" to all authori$ed activities
whether inside or outside the premises of the school% entit" or institution.
Art. 219. Those given the authorit" and responsibilit" under the
preceding Article shall be principall" and solidaril" liable for damages caused
b" the acts or omissions of the unemancipated minor. The parents% judicial
guardians or the persons e-ercising substitute parental authorit" over said
minor shall be subsidiaril" liable.
The respective liabilities of those referred to in the preceding
paragraph shall not appl" if it is proved that the" e-ercised the proper
diligence re.uired under the particular circumstances.
All other cases not covered b" this and the preceding articles shall be
governed b" the provisions of the Civil Code on .uasi/delicts.
&rticles 21D and 21E apply 0N8H to minors since the schools merely ta+e the place
o# the parents.
,ules9
1. &rticles 21D and 21E are not limited to schools o# arts and trade, but are
applicable to all schools.
2. &uthority and responsibility apply to activities inside and outside provided the
activity is an authori6ed one :i.e. #ield trip;
. The liability o# the school administrators and the teacher is solidary and
primary.
$. The liability o# the parents or the guardian is subsidiary.
3. Negligence o# the school administrators and the teacher is presumed. The
burden in on the school administrator and the teacher to prove diligence under
&rticle 21E.
4. The scope o# the liability e'tends only to damage caused by the child in the
course o# an authori6ed school activity.
,ules ,egarding 8iability #or 7n)uries Caused by .tudents
1. 7# the student who caused the in)ury is below 1D, &rticles 21D 2 21E apply.
2. 7# the student who caused the in)ury is above 1D, &rticles 21D 2 21E do N0T
apply. &rticle 21D1
is applicable.
Art. %)/0. The obligation imposed by article 21C4 is demandable not only #or oneGs own acts
or omissions, but also #or those o# persons #or whom one is responsible.
The #ather and, in case o# his death or incapacity, the mother, are responsible #or the
damages caused by the minor children who live in their company.
5uardians are liable #or damages caused by the minors or incapacitated persons who
are under their authority and live in their company.
The owners and managers o# an establishment or enterprise are li+ewise responsible #or
damages caused by their employees in the service o# the branches in which the latter are
employed or on the occasion o# their #unctions.
/mployers shall be liable #or the damages caused by their employees and household
helpers acting within the scope o# their assigned tas+s, even though the #ormer are not
engaged in any business or industry.
The .tate is responsible in li+e manner when it acts through a special agent% but not
when the damage has been caused by the o##icial to whom the tas+ done properly pertains, in
which case what is provided in article 21C4 shall be applicable.
Professor Ruben F. Balane Pa)e *.. of +,-
&rticle 21D1 is applicable to both academic and non2academic institutions.
1. &cademic institutions < the liability attaches to the teacher
2. Non2academic institutions < the liability attaches to the head o# the
establishment (Amadora vs. ;A)
7# a student is in)ured and the persons who caused the in)ury were not students,
&rts. 21D, 21E o# the Family Code and &rt. 21D1 o# the Civil Code are not
applicable. The school is liable in such a case based on the contract between the
student and the school. The school is supposed to provide the student ade-uate
protection (P+-A vs. ;A).
'. E..ect o. &arental Aut"orit! 8pon t"e &ersons o. t"e *"il+ren
Art. 220. The parents and those e-ercising parental authorit"
shall have with the respect to their unemancipated children on wards
the following rights and duties+
5'6 To keep them in their compan"% to support% educate and
instruct them b" right precept and good e-ample% and to
provide for their upbringing in keeping with their means3
546 To give them love and affection% advice and counsel%
companionship and understanding3
576 To provide them with moral and spiritual guidance% inculcate
in them honest"% integrit"% self/discipline% self/reliance%
industr" and thrift% stimulate their interest in civic affairs% and
inspire in them compliance with the duties of citi$enship3
5<6 To furnish them with good and wholesome educational
materials% supervise their activities% recreation and association
with others% protect them from bad compan"% and prevent
them from ac.uiring habits detrimental to their health% studies
and morals3
5)6 To represent them in all matters affecting their interests3
5A6 To demand from them respect and obedience3
5B6 To impose discipline on them as ma" be re.uired under the
circumstances3 and
5C6 To perform such other duties as are imposed b" law upon
parents and guardians.
Art. 221. Parents and other persons e-ercising parental
authorit" shall be civill" liable for the injuries and damages caused b"
the acts or omissions of their unemancipated children living in their
compan" and under their parental authorit" subject to the appropriate
defenses provided b" law.
Art. 222. The courts ma" appoint a guardian of the child:s
propert" or a guardian ad litem when the best interests of the child so
re.uires.
8astly, teachers or heads o# establishments o# arts and trades shall be liable #or
damages caused by their pupils and students or apprentices, so long as they remain in their
custody.
The responsibility treated o# in this article shall cease when the persons herein
mentioned prove that they observed all the diligence o# a good #ather o# a #amily to prevent
damage.
Professor Ruben F. Balane Pa)e *.+ of +,-
Art. 223. The parents or% in their absence or incapacit"% the
individual% entit" or institution e-ercising parental authorit"% ma"
petition the proper court of the place where the child resides% for an
order providing for disciplinar" measures over the child. The child
shall be entitled to the assistance of counsel% either of his choice or
appointed b" the court% and a summar" hearing shall be conducted
wherein the petitioner and the child shall be heard.
8owever% if in the same proceeding the court finds the
petitioner at fault% irrespective of the merits of the petition% or when
the circumstances so warrant% the court ma" also order the
deprivation or suspension of parental authorit" or adopt such other
measures as it ma" deem just and proper.
Art. 224. The measures referred to in the preceding article ma"
include the commitment of the child for not more than thirt" da"s in
entities or institutions engaged in child care or in children:s homes
dul" accredited b" the proper government agenc".
The parent e-ercising parental authorit" shall not interfere with
the care of the child whenever committed but shall provide for his
support. >pon proper petition or at its own instance% the court ma"
terminate the commitment of the child whenever just and proper.
4. E..ect o. &arental Aut"orit! 8pon t"e &ropert! o. t"e *"il+ren
Art. 225. The father and the mother shall jointl" e-ercise legal
guardianship over the propert" of the unemancipated common child
without the necessit" of a court appointment. ,n case of
disagreement% the father:s decision shall prevail% unless there is a
judicial order to the contrar".
0here the market value of the propert" or the annual income of
the child e-ceeds P)E%EEE% the parent concerned shall be re.uired to
furnish a bond in such amount as the court ma" determine% but not
less than ten per centum 5'EF6 of the value of the propert" or annual
income% to guarantee the performance of the obligations prescribed for
general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides% or% if the child
resides in a foreign countr"% in the proper court of the place where the
propert" or an" part thereof is situated.
The petition shall be docketed as a summar" special proceeding
in which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article shall be
heard and resolved.
The ordinar" rules on guardianship shall be merel" suppletor"
e-cept when the child is under substitute parental authorit"% or the
guardian is a stranger% or a parent has remarried% in which case the
ordinar" rules on guardianship shall appl".
Art. 226. The propert" of the unemancipated child earned or
ac.uired with his work or industr" or b" onerous or gratuitous title
shall belong to the child in ownership and shall be devoted e-clusivel"
Professor Ruben F. Balane Pa)e *./ of +,-
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
propert" shall be limited primaril" to the child:s support and
secondaril" to the collective dail" needs of the famil".
Art. 227. ,f the parents entrust the management or
administration of an" of their properties to an unemancipated child%
the net proceeds of such propert" shall belong to the owner. The child
shall be given a reasonable monthl" allowance in an amount not less
than that which the owner would have paid if the administrator were a
stranger% unless the owner% grants the entire proceeds to the child. ,n
an" case% the proceeds thus give in whole or in part shall not be
charged to the child:s legitime.
Aarents may e'ercise parental authority over their childs property.
2 Iinds o# Aroperties o# Binors
1. Adventitious :&rticle 224;
&dventitious property is earned or ac-uired by the child through his
wor+ or industry or by onerous or gratuitous title.
The child owns this property.
The child is also is the usu#ructuary as the child en)oys the #ruits
unless the mode o# trans#er provides otherwise. The #ruits and
income o# adventitious property must be applied primarily #or the
childs support and secondarily #or the #amilys collective needs
:&rticle 224, ?2;.
The property is administered by the parents since the child has no
capacity to act.
2. Profectitious :&rticle 22C;
Aro#ectitious property is owned by the parents. >owever, this
property is given to the child #or him to administer. For e'ample,
the parents may own a #arm. Their child is 1C years old. To teach
him industry, the parents tell the child to harvest and ta+e care o#
the #arm.
The parents own this type o# property.
The parents are the usu#ructuary. >owever, the child is entitled to
a monthly allowance which should be not less than what the owner
o# the property would have paid an administrator. The parents may
give the entire proceeds o# the property to the child.
The property is administered by the child.
C. 5uspension or 7erination o. &arental Aut"orit!
Art. 228. Parental authorit" terminates permanentl"+
5'6 >pon the death of the parents3
546 >pon the death of the child3 or
576 >pon emancipation of the child.
Professor Ruben F. Balane Pa)e *., of +,-
Art. 229. >nless subse.uentl" revived b" a final judgment%
parental authorit" also terminates+
5'6 >pon adoption of the child3
546 >pon appointment of a general guardian3
576 >pon judicial declaration of abandonment of the child in a case
filed for the purpose3
5<6 >pon final judgment of a competent court divesting the part"
concerned of parental authorit"3 or
5)6 >pon judicial declaration of absence or incapacit" of the
person e-ercising parental authorit".
Art. 230. Parental authorit" is suspended upon conviction of the
parent or the person e-ercising the same of a crime which carries with
it the penalt" of civil interdiction. The authorit" is automaticall"
reinstated upon service of the penalt" or upon pardon or amnest" of
the offender.
Art. 231. The court in an action filed for the purpose in a related
case ma" also suspend parental authorit" if the parent or the person
e-ercising the same+
5'6 Treats the child with e-cessive harshness or cruelt"3
546 Gives the child corrupting orders% counsel or e-ample3
576 Compels the child to beg3 or
5<6 ?ubjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases
which have resulted from culpable negligence of the parent or the
person e-ercising parental authorit".
,f the degree of seriousness so warrants% or the welfare of the
child so demands% the court shall deprive the guilt" part" of parental
authorit" or adopt such other measures as ma" be proper under the
circumstances.
The suspension or deprivation ma" be revoked and the parental
authorit" revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and
will not be repeated.
Art. 232. ,f the person e-ercising parental authorit" has
subjected the child or allowed him to be subjected to se-ual abuse%
such person shall be permanentl" deprived b" the court of such
authorit".
Art. 233. The person e-ercising substitute parental authorit"
shall have the same authorit" over the person of the child as the
parents.
,n no case shall the school administrator% teacher of individual
engaged in child care e-ercising special parental authorit" inflict
corporal punishment upon the child.
Iinds o# Termination and .uspension
'. ,rreversible Termination
a. *eath o# the parents :&rticle 22D :1;;
Aarental authority is terminated as #ar as the dead parent is
concerned.
b. *eath o# the child :&rticle 22D :2;;
c. /mancipation :&rticle 22D :;;
This is the most common.
d. Court order under &rticle 22
7# the parent or parents e'ercising parental authority have
sub)ected the child or allowed him or her to be sub)ected to
se'ual abuse, the parent or parents shall be deprived
permanently by the court o# such parental authority.
2. *eversible Termination :the termination may or may not be
permanent;
a. !pon adoption
7t is reversible because there is a possibility that the adoption
may be rescinded.
b. !pon appointment o# a guardian
5uardianship may be li#ted i# such is no longer necessary
c. Mudicial declaration o# abandonment
d. Final )udgment o# a competent court under &rticle 21
The grounds are9
i. Treats the child with e'cessive harshness or cruelty%
ii. 5ives the child corrupting orders, counsel or e'ample%
iii. Compels the child to beg% or
iv. .ub)ects the child or allows him or her to be sub)ected to
acts o# lasciviousness
e. Mudicial declaration o# absence or incapacity o# the person
. ?uspension of Parental Authorit"
a. Aarent is convicted o# a crime which carries with it the accessory
penalty o# civil interdiction
b. Court order under &rticle 21
The grounds are9
i. Treats the child with e'cessive harshness or cruelty%
ii. 5ives the child corrupting orders, counsel or e'ample%
iii. Compels the child to beg% or
iv. .ub)ects the child or allows him or her to be sub)ected to
acts o# lasciviousness
,.7E: !nder &rticle 21, parental authority may be suspended or
terminated depending on the seriousness o# the ground.
=!II. $iscellaneous Provisions
Art. 356. 9ver" child+
5'6 ,s entitled to parental care3
546 ?hall receive at least elementar" education3
576 ?hall be given moral and civic training b" the parents or guardian3
5<6 8as a right to live in an atmosphere conducive to his ph"sical% moral
and intellectual development.
Art. 357. 9ver" child shall+
5'6 #be" and honor his parents or guardian3
546 *espect his grandparents% old relatives% and persons holding
substitute parental authorit"3
576 9-ert his utmost for his education and training3
5<6 Cooperate with the famil" in all matters that make for the good of
the same.
Art. 358. 9ver" parent and ever" person holding substitute parental
authorit" shall see to it that the rights of the child are respected and his
duties complied with% and shall particularl"% b" precept and e-ample% imbue
the child with highmindedness% love of countr"% veneration for the national
heroes% fidelit" to democrac" as a wa" of life% and attachment to the ideal of
permanent world peace.
Art. 359. The government promotes the full growth of the faculties of
ever" child. @or this purpose% the government will establish% whenever
possible+
5'6 ?chools in ever" barrio% municipalit" and cit" where optional
religious instruction shall be taught as part of the curriculum at the
option of the parent or guardian3
546 Puericulture and similar centers3
576 Councils for the Protection of Children3 and
5<6 1uvenile courts.
Art. 360. The Council for the Protection of Children shall look after the
welfare of children in the municipalit". ,t shall% among other functions+
5'6 @oster the education of ever" child in the municipalit"3
546 9ncourage the cultivation of the duties of parents3
576 Protect and assist abandoned or mistreated children% and orphans3
5<6 Take steps to prevent juvenile delin.uenc"3
5)6 Adopt measures for the health of children3
5A6 Promote the opening and maintenance of pla"grounds3
5B6 Coordinate the activities of organi$ations devoted to the welfare of
children% and secure their cooperation.
Art. 361. 1uvenile courts will be established% as far as practicable% in
ever" chartered cit" or large municipalit".
Art. 362. 0henever a child is found delin.uent b" an" court% the
father% mother% or guardian ma" in a proper case be judiciall" admonished.
Art. 363. ,n all .uestions on the care% custod"% education and propert"
of children the latter:s welfare shall be paramount. 2o mother shall be
separated from her child under seven "ears of age% unless the court finds
compelling reasons for such measure.
&rticles 34 to 4 o# the Civil Code have not been repealed by the Family Code.
Bost though are dead letter law.
&rticle 4 is an important since this article deals with the best interest o# the
child.
The second sentence o# &rticle 4 is #ound in the second paragraph o# &rticle
21
o# the Family Code.

The #irst sentence o# &rticle 4 is still good law.
=!III. Su33ar9 5u&icial Procee&in)s :&rticles 2D2232;
Art. 238. >ntil modified b" the ?upreme Court% the procedural rules
provided for in this Title shall appl" as regards separation in fact between
husband and wife% abandonment b" one of the other% and incidents involving
parental authorit".
Art. 239. 0hen a husband and wife are separated in fact% or one has
abandoned the other and one of them seeks judicial authori$ation for a
transaction where the consent of the other spouse is re.uired b" law but
such consent is withheld or cannot be obtained% a verified petition ma" be
filed in court alleging the foregoing facts.
The petition shall attach the proposed deed% if an"% embod"ing the
transaction% and% if none% shall describe in detail the said transaction and
state the reason wh" the re.uired consent thereto cannot be secured. ,n an"
case% the final deed dul" e-ecuted b" the parties shall be submitted to and
approved b" the court.
Art. 240. Claims for damages b" either spouse% e-cept costs of the
proceedings% ma" be litigated onl" in a separate action.
Art. 241. 1urisdiction over the petition shall% upon proof of notice to
the other spouse% be e-ercised b" the proper court authori$ed to hear famil"
cases% if one e-ists% or in the regional trial court or its e.uivalent sitting in
the place where either of the spouses resides.
Art. 242. >pon the filing of the petition% the court shall notif" the
other spouse% whose consent to the transaction is re.uired% of said petition%
ordering said spouse to show cause wh" the petition should not be granted%
on or before the date set in said notice for the initial conference. The notice
shall be accompanied b" a cop" of the petition and shall be served at the last
known address of the spouse concerned.
Art. 243. A preliminar" conference shall be conducted b" the judge
personall" without the parties being assisted b" counsel. After the initial
conference% if the court deems it useful% the parties ma" be assisted b"
counsel at the succeeding conferences and hearings.
`
Art. %)( '%. 7n case o# separation o# the parents, parental authority shall be e'ercised by
the parent designated by the Court. The Court shall ta+e into account all relevant
considerations, especially the choice o# the child over seven years o# age, unless the parent
chosen is un#it.
Professor Ruben F. Balane Pa)e *.- of +,-
Art. 244. ,n case of non/appearance of the spouse whose consent is
sought% the court shall in.uire into the reasons for his failure to appear% and
shall re.uire such appearance% if possible.
Art. 245. ,f% despite all efforts% the attendance of the non/consenting
spouse is not secured% the court ma" proceed e- parte and render judgment
as the facts and circumstances ma" warrant. ,n an" case% the judge shall
endeavor to protect the interests of the non/appearing spouse.
Art. 246. ,f the petition is not resolved at the initial conference% said
petition shall be decided in a summar" hearing on the basis of affidavits%
documentar" evidence or oral testimonies at the sound discretion of the
court. ,f testimon" is needed% the court shall specif" the witnesses to be
heard and the subject/matter of their testimonies% directing the parties to
present said witnesses.
Art. 247. The judgment of the court shall be immediatel" final and
e-ecutor".
Art. 248. The petition for judicial authorit" to administer or encumber
specific separate propert" of the abandoning spouse and to use the fruits or
proceeds thereof for the support of the famil" shall also be governed b"
these rules.
Art. 249. Petitions filed under Articles 447% 44) and 47) of this Code
involving parental authorit" shall be verified.
Art. 250. ?uch petitions shall be verified and filed in the proper court
of the place where the child resides.
Art. 251. >pon the filing of the petition% the court shall notif" the
parents or% in their absence or incapacit"% the individuals% entities or
institutions e-ercising parental authorit" over the child.
Art. 252. The rules in Chapter 4 hereof shall also govern summar"
proceedings under this Chapter insofar as the" are applicable.
.ummary )udicial proceedings provided under the Family Code9
1. *eclaration o# presumptive death
2. Aartition o# spouses property
. *isagreement in #i'ing domicile
$. *isagreement in the e'ercise o# pro#ession
3. *isagreement in the administration o# community property
4. *isagreement in the administration o# con)ugal property
C. Aarental authority over #oundlings

PR"PERT%
Aroperty is any physical or incorporeal entity capable o# becoming the ob)ect o# a
)uridical relation.
Professor Ruben F. Balane Pa)e *+4 of +,-
Classification of Pro'ert9 :Castan;
7. According to 2ature :&rticle $1$;
Art. 414. All things which are or ma" be the object of appropriation
are considered either+
5'6 ,mmovable or real propert"3 or
546 ;ovable or personal propert".
'. Real or io(a'le 5Article <')6
$ Categories o# 7mmovables
a. *eal b" nature :&rticle $13, ?1 and ?D;
i. !and% buildings% roads% and constructions of all kinds adhered
to the soil
7n the case o# Lopez vs. .rosa a theater was constructed by
using lumber. The lumber supplier was not paid. The lumber
supplier was contending his material mans lien e'tends to the
land. The .C said that the material mans lien attaches only to
the building since a building is an immovable property by itsel#.
7n Associated Insurance vs. I8a, the .C said that the chattel
mortgage over the house was void since a house is an
immovable and not chattel. 0n the other hand, in 7umalad vs.
>icencio, the .C said that the parties may treat the house as
chattel. The .C #urther added that the mortgagor is estopped
#rom assailing the validity o# the chattel mortgage over the
house.
>ow do you reconcile the rulings o# Associated Insurance vs. I8a
and 7umalad vs. >icencio( 7umalad vs. >icencio applies only i#
no
rd
parties are pre)udiced.
7s it correct to say that the 7umalad ruling tells us that a chattel
mortgage over a building is proper( No, it does not. & chattel
mortgage over a building is always improper since a building is
always an immovable. 7n 7umalad vs. >icencio, as between the
parties, the chattel mortgage is en#orceable. The parties are
estopped #rom assailing the validity.
5rey &rea in Associated Insurance vs. I8a < "hat i# the
rd
party
was aware o# the e'istence o# the chattel mortgage and despite
such +nowledge, the
rd
party entered into the real estate
mortgage( &ccording to Aro#essor =alane, there may be 2 ways
o# answering this9
0ne can argue that the real estate mortgage is valid despite
+nowledge o# the
rd
party. Thats probably why the
rd
party
entered into the real estate mortgage. >e +new that the
chattel mortgage is ine##ective as between
rd
parties.
0ne can argue that the
rd
party is in bad #aith :&rticles 1E
and 21
;
`
Art. )2. /very person must, in the e'ercise o# his rights and in the per#ormance o# his duties,
act with )ustice, give everyone his due, and observe honesty and good #aith.
Professor Ruben F. Balane Pa)e *+* of +,-
ii. ;ines% .uarries and slag dumps% while the matter thereof
forms part of the bed% and waters either running or stagnant
b. *eal b" incorporation :&rticle $13, ?s 2,, and C;
i. Trees% plants% and growing fruits% while the" are attached to
the land or form an integral part of an immovable
5rowing #ruits and crops are movables in other laws :i.e. chattel
mortgage law;
ii. 9ver"thing attached to an immovable in a fi-ed manner% in
such a wa" that it cannot be separated therefrom without
breaking the material or deterioration of the object
7t is the result which is important% that it cannot be removed
without causing damage.
There is no re-uirement that the attachment be done by the
owner :can be done by anyone;.
7n -oard o! Assessments vs. B/,&8C0, the B/,&8C0 was
assessed real property ta' on its electric poles. The theory was
that the same are real property being adhered to the soil. The
.C said that the electric poles are not real property since they
can be removed. .uch poles were not attached in #i'ed manner.
iii. @ertili$er actuall" used on a piece of land
5rowing #ruits The #ertili6er is real property since it becomes an
integral part o# the soil.
c. *eal b" destination :&rticle $13, ?s $, 3, 4 and E;
i. ?tatues% reliefs% paintings or other objects for use or
ornamentation% placed in buildings or on lands b" the owner
of the immovable in such manner that it reveals the intention
to attach them permanentl" to the tenements
,e-uisites #or 7mmobili6ation
1. 7t is an ob)ect o# ornamentation or ob)ect o# use.
2. The ob)ect is placed on a building or land.
. The installation was made by the owner o# the building or the
land.
$. 7t is attached in such a manner that it reveals an intention to
attach it permanently.
ii. ;achiner"% receptacles% instruments or implements intended
b" the owner of the tenement for an industr" or works which
ma" be carried on in a building or on a piece of land% and
Art. %0. /very person who, contrary to law, will#ully or negligently causes damage to
another, shall indemni#y the latter #or the same.
Professor Ruben F. Balane Pa)e *+. of +,-
which tend directl" to meet the needs of the said industr" or
works
,e-uisites #or 7mmobili6ation
1. The ob)ect must be either machinery, receptacles,
instruments or implements #or an industry or wor+.
2. The ob)ect is installed in a tenement.
. The installation is by the owner o# the tenement.
$. 7ndustry or wor+s are carried on in the tenement.
3. The ob)ect carries out directly the industry or wor+.
7n -er6en6otter vs. ;u En"ieng there was a real estate
mortgage over the sugar central. &dditional machinery was
bought to increase the sugar centrals capacity. The .C said
that the additional machinery became immobili6ed under &rticle
$13 :3;. Thus, the additional machinery is included in the real
estate mortgage.
7n -er6en6otter vs. ;u En"ieng, would it have made a di##erence
i# there was no stipulation that the real estate mortgage would
cover #uture improvements( No, the improvements would be
covered automatically by law as the same are immobili6ed. 0#
course, the parties are #ree to stipulate what may be e'cluded
#rom the mortgage.
7n Davao +a4 9ill vs. ;astillo the machinery was installed by
the lessee. The contract o# lease stated that all improvements
introduced by the lessee e'cept machineries would belong to the
lessor a#ter the e'piration o# the lease contract. The .C said
that the machinery was not immobili6ed under &rticle $13 :3;
since the same was installed by the lessee and not the owner o#
the building or land.
.uppose in Davao +a4 9ill vs. ;astillo, there was a provision in
the lease contract that the machinery would pass to the lessor.
"ould the machinery be immobili6ed( Hes, it would since the
lessor acts as an agent o# the owner :the owner installs through
the agent;.
.uppose in Davao +a4 9ill vs. ;astillo the lease contract was
silent on whether or not the machinery would pass to the lessor.
Aro#essor =alane is not sure. >e thin+s that &rticle 14CD may be
applicable. !nder &rticle 14CD, the lessor upon the termination
o# the lease shall pay Z o# the value o# the improvements.
.hould the lessor re#use to reimburse the improvements, then
the lessee may remove the same even though the principal thing
may be damaged.
&rticle 14CD does not answer when the machinery becomes
immobili6ed in case the lessor decides to buy it. 7s it
immobili6ed upon installation or upon purchase( &rticle 14CD is
not clear on this.
iii. Animal houses% pigeon houses% beehives% fish ponds or
breeding places of similar nature% in case their owner has
placed them or preserves them with the intention to have
Professor Ruben F. Balane Pa)e *++ of +,-
them permanentl" attached to the land% and forming a
permanent part of it3 the animals in these places are included
,e-uisites
1. The structure is placed by the owner.
2. The installation must be with the intention to have them
permanently attached and #orming a part o# it.
The animals are real property only #or as long as they remain
there. Thus, i# the pigeons #ly out o# the pigeon house, then they
are no longer real property.
iv. Docks and structures which% though floating% are intended b"
their nature and object to remain at a fi-ed place on a river%
lake% or coast
d. *eal b" analog" :&rticle $13, ?11;
Contracts for public works% and servitudes and other real
rights over immovable propert"
7n contracts #or public wor+s, the contract itsel# is the real
property. For e'ample, the contract to build the /*.& #lyover is
real property in itsel#. 7n contracts #or private wor+s, the
contract is personal property.
,eal rights are those rights which are en#orceable against the
whole world. :i.e. ownership, possession in concept o# holder,
servitude, mortgage;.
For a real right to be considered real property, the real right
must be over an immovable property. For e'ample, the real
right o# ownership o# the land is considered real property while
the real right o# ownership over a bag is considered personal
property.
2. &ersonal or o(a'le
Art. 416. The following things are deemed to be personal
propert"+
5'6 Those movables susceptible of appropriation which are not
included in the preceding article3
546 *eal propert" which b" an" special provision of law is
considered as personal propert"3
576 @orces of nature which are brought under control b"
science3 and
5<6 ,n general% all things which can be transported from place
to place without impairment of the real propert" to which
the" are fi-ed.
Art. 417. The following are also considered as personal
propert"+
5'6 #bligations and actions which have for their object
movables or demandable sums3 and
Professor Ruben F. Balane Pa)e *+/ of +,-
546 ?hares of stock of agricultural% commercial and industrial
entities% although the" ma" have real estate.
.ince &rticle $13 is e'clusive, &rticles $14 and $1C are super#luous.
.hares o# stoc+ :even i# they shares o# stoc+ o# &yala 8and; are always
personal property.
,.7E: The terms Oreal propertyP and Opersonal propertyP are common
law terms while Oimmovable propertyP and Omovable propertyP are civil
law terms.
The distinction between immovable and movable property is important
in mortgages (Lopez vs. .rosa Associated Insurance vs. I8a and
7umalad vs. >icencio).
The distinction is also important in donations since the #orm will be
di##erent.
77. According to Character of #wnership :&rticles $1E 2 $23;
Art. 419. Propert" is either of public dominion or of private
ownership.
Art. 420. The following things are propert" of public dominion+
5'6 Those intended for public use% such as roads% canals% rivers% torrents%
ports and bridges constructed b" the ?tate% banks% shores%
roadsteads% and others of similar character3
546 Those which belong to the ?tate% without being for public use% and
are intended for some public service or for the development of the
national wealth.
Art. 421. All other propert" of the ?tate% which is not of the character
stated in the preceding article% is patrimonial propert".
Art. 422. Propert" of public dominion% when no longer intended for
public use or for public service% shall form part of the patrimonial propert" of
the ?tate.
Art. 425. Propert" of private ownership% besides the patrimonial
propert" of the ?tate% provinces% cities% and municipalities% consists of all
propert" belonging to private persons% either individuall" or collectivel".
1. &u'lic +oinion
2 Iinds o# Aroperty o# the Aublic *ominion
a. Public use < anyone can use :i.e., /*.&, ,i6al Aar+;
i. Aroperty #or public use may be owned by the state :&rticle $21 :1;;
ii. Aroperty #or public use may be owned by 85!s < political
subdivisions :&rticle $2$;
b. Public service < not #or the general use but #or some state #unction
:i.e. government hospitals, Balcolm >all;
0nly the state may own property #or public service :&rticle $21 :2;;
There is no such thing as property #or public service #or 85!s.
Professor Ruben F. Balane Pa)e *+, of +,-
,.7E: The term Opublic dominionP is a civil law term while Opublic
domainP is a common law term. .trictly spea+ing, they are not
synonymous.
Characteristics o# Aroperty o# the Aublic *ominion
1. 0utside the commerce o# man e'cept #or purposes o# repairs
2. Not sub)ect to prescription :because outside the commerce o# man;
. Cannot be levied upon :i.e. e'ecution or attachment;
$. Cannot be burdened by any voluntary easement
7n @a6apin vs. ;?I, the private lot was eroded by the sea. 7t eventually
become part o# the seabed. The .C said that the private lot became part
o# the public dominion since it is now part o# the seabed.
7n 5overnment o# the P#ilippines vs. ;a5angis, the .C said that the land
was covered by a Torrens title will not protect the land owner i# the land
becomes part o# the seabed < de !acto case o# eminent domain.
7n Repu5lic vs. ;A the .C said that the land did not become part o# the
public dominion. There was only a temporary inundation. 0nce the #lood
had subsided, the land became dry :see &rticle $3D;.
Cree+s and #orest land #orm part o# the public dominion.

2. &ri(ate o;ners"ip
Iinds o# Aroperty o# Arivate 0wnership
a. Patrimonial propert" of the state
&ll property o# the state which is not o# part o# the public dominion
is patrimonial property :&rticle $21;.
Aroperty o# public dominion, when no longer intended #or public use
or #or public service, shall #orm part o# the patrimonial property o#
the .tate :&rticle $22;.
,ulings in Laurel vs. :arcia :,oponggi case;
1. The ,oponggi property is property o# the public dominion since it
is #or public service.
&ccording to Aro#essor =alane, this has serious implications.
7s it possible #or property owned by the government in a
#oreign land to become property o# the public dominion(
Aublic dominion connotes sovereignty. 7n the case o#
,oponggi, Mapan is the sovereign authority. 7n this case the
Ahilippines is only a private land owner. Mapan, being the
sovereign, can e'propriate the ,oponggi property, and the
Ahilippines cannot re#used. The .C should have answered
the -uestion 7s it possible #or property owned by the
government in a #oreign land to become property o# the
public dominion.
2. Aroperty o# the public dominion cannot be alienated without it
being converted to patrimonial property. 0nce the property has
been converted, it is alienable.
. ,oponggi has not been converted to patrimonial property.
Conversion can only ta+e place by a #ormal declaration. .uch
declaration cannot be implied.
7t is not clear i# this #ormal declaration is an e'ecutive or a
legislative act.
$. Aatrimonial property can be alienated only by an authority o# law
:legislature;.
b. Patrimonial propert" of !G>s :political subdivisions;
c. Patrimonial propert" of individuals
Art. 423. The propert" of provinces% cities% and municipalities is
divided into propert" for public use and patrimonial propert".
Art. 424. Propert" for public use% in the provinces% cities% and
municipalities% consist of the provincial roads% cit" streets% municipal streets%
the s.uares% fountains% public waters% promenades% and public works for
public service paid for b" said provinces% cities% or municipalities.
All other propert" possessed b" an" of them is patrimonial and shall
be governed b" this Code% without prejudice to the provisions of special laws.
Aroperties o# 85!s :&rticles $2 and $2$;
1. Aroperty #or public use
Aroperty #or public use consist o# roads, streets, s-uares, #ountains,
public waters, promenades and public wor+s #or public service paid
#or by the 85!s :&rticle $2$, ?1;
2. Aatrimonial property
&ll other property possessed by any o# them is patrimonial and shall
be governed by the Civil Code, without pre)udice to the provisions o#
special laws.
,.7E: &ccording to Aro#essor =alane, certain decisions have eroded
&rticles $2 and $2$.
7n 7an 7oco vs. 9unicipal ;ouncil o! Iloilo, a person levied on
truc+s, police cars, police stations. The .C said that these could not
be levied since they were property #or public use. &ccording to
Aro#essor =alane, these are not properties #or public use since not
every in the general public may use them. Following the Civil Code,
they are patrimonial property.
7n Fam5oanga del ,orte vs. ;it8 o! Fam5oanga, #ollowing the Civil
Code de#inition, all but 2 o# the lots :playgrounds; are really
patrimonial since there is 85!s cannot own property devoted #or
public service. =ut that was not what the .C said.
,,,. According to 9ssential @orm
1. *orporeal
2. 3ncorporeal :i.e. shares o# stoc+, goodwill in a business;
The distinction is important #or areas such as mode o# trans#er
,=. According to Designation
1. 5peci.ic
The ob)ect is individually determined. For e'ample, 7 promise to sell you
my car with license plate AB/ 21D.
2. Generic
The ob)ect is determined only as to its +ind. For e'ample, 7 promise to sell
you 1111 +ilos o# rice.
The distinction is important in legacies and donations. The distinction is
also important in e'tinguishing obligations.
=. According to its ?usceptibilit" to ?ubstitution
1. )un/i'le
Fungible means that the thing can be substituted with another thing o# the
same +ind or -uality. This is determined by the 7NT/NT o# the parties. For
e'ample, i# & borrows a boo+ #rom =, it may be the intention o# the parties
that = return the e'act same boo+ since it has &s annotations.

2. #on<)un/i'le
=,. According to its Aptitude for *epeated >se
Art. 418. ;ovable propert" is either consumable or
nonconsumable. To the first class belong those movables which cannot be
used in a manner appropriate to their nature without their being
consumed3 to the second class belong all the others.
1. *onsua'le
& thing is consumable i# according to its nature, it cannot be used
appropriately without being consumed.
2. #on<*onsua'le
,.7E: The legal de#inition o# consumable in &rticle 1E
is wrong. The sub)ect

matter o# a commodatum may be a consumable or not. =ut, it must be non2
#ungible since the e'act, same thing must be returned. 7n a mutuum, the obligor
can return a di##erent thing as long as it is o# the same +ind and -uality.
=,,. According to its ?usceptibilit" to Division
1. Di(isi'le
2. 3n+i(isi'le
The distinction is important in partition :either physical or constructive
partition;
Art. )2((. =y the contract o# loan, one o# the parties delivers to another, either something
not consumable so that the latter may use the same #or a certain time and return it, in which
case the contract is called a commodatum% or money or other consumable thing, upon the
condition that the same amount o# the same +ind and -uality shall be paid, in which case the
contract is simply called a loan or mutuum.
Commodatum is essentially gratuitous.
.imple loan may be gratuitous or with a stipulation to pay interest.
7n commodatum the bailor retains the ownership o# the thing loaned, while in simple
loan, ownership passes to the borrower.
=,,,. According to its 9-istence in Time
1. &resent < res existens
2. )uture < res !uturae
The distinction is important in sales. 7t is also important in donations. & party
cannot donate #uture things. 7t is also important in succession. & party cannot
enter into a contract regarding #uture inheritance.
,K. According to its Dependence
1. &rincipal
2. Accessor!
The general rule is that the accessory #ollows the principal. &n e'ception to
the general rules is reverse accession :&rticle 121
, Family Code;.
The distinction is important in sales. "hen one buys a car, the car should
include the accessories such as the spare tire, the radio, etc. The distinction is
also important in lease contracts.
Bun&le of Ri)7ts
,. #wnership
Art. 427. #wnership ma" be e-ercised over things or rights.
0wnership is the independent and general right o# a person to control a thing
in its possession, en)oyment, disposition and recovery sub)ect to no
restrictions e'cept those validly imposed by the state or by )uridical
transactions.
7n ,oman 8aw, ownership was an absolute right. 0wnership is evolving in
light o# social )ustice, police power in order to promote the wel#are o# the
people and environmental concerns. Now, we have concepts such as
stewardship. Now, one must comply with sa#ety and environmental
regulations. Now, building permits are re-uired.
0wnership is accompanied by the #ollowing rights (P#il. -an6ing vs. Lui +#e)9
1. ius possidendi < the right to possess
2. ius utendi < the right to use
. ius !ruendi < the right to en)oy the #ruits
$. ius a5utendi < the right to destroy :but cannot harm others;
Art. )%0. The ownership o# improvements, whether #or utility or adornment, made on the
separate property o# the spouses at the e'pense o# the partnership or through the acts or
e##orts o# either or both spouses shall pertain to the con)ugal partnership, or to the original
owner2spouse, sub)ect to the #ollowing rules9
"hen the cost o# the improvement made by the con)ugal partnership and any resulting
increase in value are more than the value o# the property at the time o# the improvement, the
entire property o# one o# the spouses shall belong to the con)ugal partnership, sub)ect to
reimbursement o# the value o# the property o# the owner2spouse at the time o# the
improvement% otherwise, said property shall be retained in ownership by the owner2spouse,
li+ewise sub)ect to reimbursement o# the cost o# the improvement.
7n either case, the ownership o# the entire property shall be vested upon the
reimbursement, which shall be made at the time o# the li-uidation o# the con)ugal partnership.
Professor Ruben F. Balane Pa)e *+- of +,-
3. ius disponendi < the right to dispose, or the right to alienate, encumber,
trans#orm
4. ius vindicandi < the right o# action available to the owner to recover the
property against the holder or possessor
C. ius accessions < the right to accessions
Characteristics o# 0wnership
1. General :&rticle $2D;
Art. 428. The owner has the right to enjo" and dispose of a
thing% without other limitations than those established b" law.
The owner has also a right of action against the holder and
possessor of the thing in order to recover it.
The owner may use the thing in all its possibility sub)ect to restrictions.
For e'ample, an owner is not limited in using a bag merely as a place
where goods are +ept. The owner may use the bag as a hat.
2. ,ndependent
0wnership can e'ist even without any other right.
. Abstract
The right o# ownership e'ists distinctly #rom its constituent or
component parts :i.e. ius accessions, ius a5utendi, etc;.
$. 9lastic
The component rights can be reduced or given to others :i.e. usu#ruct <
the right to en)oy the #ruits;.
3. 9-clusive
There can only be 1 ownership at one time.
7n co2ownership, there is only 1 ownership, but this is shared
ownership.
4. Generall" Perpetual
0wnership is generally not limited as to time unless there is stipulation
to the contrary.
0wnership is inherently unlimited, but it is not necessarily so.
0wnership can be restricted. These restrictions on ownership may be
imposed by the .tate or by )uridical transactions :i.e. contract;. 7n
several cases, the .C has upheld the validity o# deed restrictions with
regard to how buildings are to be constructed.
Art. 429. The owner or lawful possessor of a thing has the right to
e-clude an" person from the enjo"ment and disposal thereof. @or this
purpose% he ma" use such force as ma" be reasonabl" necessar" to repel
or prevent an actual or threatened unlawful ph"sical invasion or
usurpation of his propert".
This is +nown as the doctrine o# sel#2help.
This is one o# the instances in which a person is allowed to ta+e the law into
his own hands and to use #orce. Normally, the use o# violence is reserved to
the sovereign power o# the state.
Professor Ruben F. Balane Pa)e */4 of +,-
&rticle $2E is similar to &rticle 11, ?$
@
o# the ,evised Aenal Code.
,e-uisites
1. Aerson who employs #orce or violence must be the owner :actual or
presumed; or a law#ul possessor
2. That person must be in actual physical possession
The right in &rticle $2E is a possessory right only.
& owns land in Nasugbu. & sees =s goons. = tells & to get out. &
success#ully thwarts the invasion. =s goons are in)ured. Can & be
success#ully charged with physical in)uries( No, i# reasonable #orce was
used.
7n the same e'ample, =s goons succeeds in throwing out &. & comes
bac+ and in#licts #orce. 7s this allowed( No, & is not in physical
possession o# the land. &s remedy is to go to court under &rticle $
.
. There must be actual or imminent aggression
$. 0nly reasonable #orce is employed by the owner or law#ul
possessor
Art. 430. 9ver" owner ma" enclose or fence his land or tenements
b" means of walls% ditches% live or dead hedges% or b" an" other means
without detriment to servitudes constituted thereon.
The right o# an owner to enclose his tenement is limited by the servitudes
e'isting on it.
7n Lunod vs. 9eneses, the owner o# the lower tenement created a structure
impeding the #low o# water #rom the upper tenement to the lower tenements.
Thus, the upper tenements were #looded. .C said that a person could enclose
his property to obstruct the natural #low o# waters #rom the upper tenements.
Art. 431. The owner of a thing cannot make use thereof in such
manner as to injure the rights of a third person.
The owner may use property only in such a manner that it does not in)ure
others < sic utere tuo ut alienum non laedas.
This encapsulates everything in the law on things.
Art. 432. The owner of a thing has no right to prohibit the
interference of another with the same% if the interference is necessar" to
avert an imminent danger and the threatened damage% compared to the
damage arising to the owner from the interference% is much greater. The
owner ma" demand from the person benefited indemnit" for the damage
to him.
*
&rticle 11. <usti!8ing circumstances. G The #ollowing do not incur any criminal liability9
$. &ny person who, in order to avoid an evil or in)ury, does an act which causes damage
to another, provided that the #ollowing re-uisites are present9
First. That the evil sought to be avoided actually e'ists%
.econd. That the in)ury #eared be greater than that done to avoid it%
Third. That there be no other practical and less harm#ul mean o# preventing it.
_
Art. *((. &ctual possession under claim o# ownership raises disputable presumption o#
ownership. The true owner must resort to )udicial process #or the recovery o# the property.
Professor Ruben F. Balane Pa)e */* of +,-
This is basically the same rule as &rticle 11, ?$$ o# the ,evised Aenal Code <
prevention o# a greater in)ury.
,e-uisites9
1. The inter#erence must be necessary to avert imminent danger.
2. The threatened damage must be greater than the damage caused to the
owner.
. 0nly such inter#erence as is necessary shall be made in order to avert the
damage.
&n e'ample o# &rticle $2 is a case in criminal law. 7n that case a car was
burning near a gas station. The car was pushed away #rom the gar station.
>owever in the process, a house was burned.
= is running away #rom drug addicts. = passes a house. = smashes the door
and is able to save himsel#. =s actions are )usti#ied. = is not guilty o#
malicious mischie# since = was trying to prevent in)ury to himsel#.
General *ule+ Compensation may be demanded by the property owner.
Exception: No compensation i# the in)ury is caused by the property owner and
the person who intervened was not at #ault.
= is drun+. = is wal+ing home and singing O=ayan IoP. = passes Ms house. M
has a *oberman. The *oberman attac+s =. = stabs the *oberman with a
.wiss army +ni#e. *id = act under &rticle $2( Hes. *oes = have to pay( No,
because the danger came #rom the property itsel#, the *oberman, and it was
not =s #ault.
= sees *oberman sleeping. = starts shouting at the *oberman. = +ic+s the
dog. *og attac+s =. = stabs the dog. = is )usti#ied in +illing the dog under
&rticle $2. = has a right to de#end himsel#. >owever, = has to pay M since =
provo+ed the dog.
Art. 433. Actual possession under claim of ownership raises
disputable presumption of ownership. The true owner must resort to
judicial process for the recover" of the propert".
&ssuming that the possessor claiming the ownership is illegitimate, the true
owner :not in possession; must go to court. >e cannot apply the doctrine o#
sel#2help under &rticle $2E since he is not in possession. &rticle $ applies
when the plainti## is not in possession o# the property.
,emedies
1. &ction #or #orcible entry
The action o# #orcible entry is #or the recovery o# the material or
physical possession and must be brought in the BTC within 1 year #rom
the date o# the #orcible entry.
%. Accion pu5liciana
& plenary action #or the recovery o# the possession o# real estate, upon
mere allegation and proo# o# a better right thereto, and without
allegation o# proo# o# title. This action can only be brought a#ter the
e'piration o# 1 year.
(. Accion reivindicatoria
Professor Ruben F. Balane Pa)e */. of +,-
&n action whereby the plainti## alleges ownership over a parcel o# land
and see+s recovery o# its possession.
$. Quieting o# title
Art. 476. 0henever there is a cloud on title to real propert"
or an" interest therein% b" reason of an" instrument% record% claim%
encumbrance or proceeding which is apparentl" valid or effective
but is in truth and in fact invalid% ineffective% voidable% or
unenforceable% and ma" be prejudicial to said title% an action ma"
be brought to remove such cloud or to .uiet the title.
An action ma" also be brought to prevent a cloud from being
cast upon title to real propert" or an" interest therein.
Art. 477. The plaintiff must have legal or e.uitable title to%
or interest in the real propert" which is the subject matter of the
action. 8e need not be in possession of said propert".
Art. 478. There ma" also be an action to .uiet title or
remove a cloud therefrom when the contract% instrument or other
obligation has been e-tinguished or has terminated% or has been
barred b" e-tinctive prescription.
Art. 479. The plaintiff must return to the defendant all
benefits he ma" have received from the latter% or reimburse him for
e-penses that ma" have redounded to the plaintiff:s benefit.
Art. 480. The principles of the general law on the .uieting of
title are hereb" adopted insofar as the" are not in conflict with this
Code.
Art. 481. The procedure for the .uieting of title or the
removal of a cloud therefrom shall be governed b" such rules of
court as the ?upreme Court shall promulgated.
8i+e accion pu5liciana, it involves only real property and is either
curative or preventive. !nli+e accion pu5liciana, -uieting o# title applies
to both ownership and possession. 7n -uieting o# title, the complaint
must allege the e'istence o# an apparently valid or e##ective instrument
or other claim which is in reality void, ine##ective, voidable or
unen#orceable.
&rticle $C4 seems to interchange removal o# a cloud with -uieting o#
title. 7n common law, there is a distinction. !nder common law, an
action to -uiet title must set #orth an adverse claim, but it must not be
speci#ic. 0nly a general claim is made. &n action to remove a cloud
re-uires a speci#ic claim.
&rticle $C4 can either be a preventive :?2; or a remedial action :?1;.
Quieting o# title is a =uasi in rem action.
7# the plainti## in an action to -uiet title is in possession o# the property,
then the action to -uiet title is imprescriptible :?a8a vs. ;A;.
Professor Ruben F. Balane Pa)e */+ of +,-
&s long as a person is in possession o# the property, it is presumed that the
person in possession is the owner. The burden is on the challenger to prove
otherwise. The 1
st
sentence o# &rticle $ is similar to &rticle 3$1
.
>owever, under &rticle 111
#or purposes o# prescription, )ust title is not

presumed. 7# one see+s to ac-uire title by prescription, the burden is on the
applicant claiming to be the owner. 7n &rticle 111, it is the possessor who is
the applicant. The possessor is the one who has the burden to prove that he
ac-uired the property through prescription. 7t is not presumed. 7n &rticles
$ and 3$1, the possessor does not claim to own it by prescription. The
possessor ta+es a de#ensive stance.
Art. 434. ,n an action to recover% the propert" must be identified%
and the plaintiff must rel" on the strength of his title and not on the
weakness of the defendant:s claim.
Two things must be proved in an accion reivindicatoria9
1. The identity o# the property
2. Alainti##s title to it
Art. 435. 2o person shall be deprived of his propert" e-cept b"
competent authorit" and for public use and alwa"s upon pa"ment of just
compensation.
?hould this re.uirement be not first complied with% the courts shall
protect and% in a proper case% restore the owner in his possession.
This is not really part o# civil law. This is merely an adoption o# the
Constitutional provision on eminent domain.
Art. 436. 0hen an" propert" is condemned or sei$ed b" competent
authorit" in the interest of health% safet" or securit"% the owner thereof
shall not be entitled to compensation% unless he can show that such
condemnation or sei$ure is unjustified.
!nder police power, the state deprives the individual o# the property without
)ust compensation.
A has a pair o# soc+s which he has been wearing #or C months. 7t is spreading
numerous diseases. The state can ta+e the pair o# soc+s to burn. 7n doing so,
there is no need #or compensation.
7# the state wants to do research on germ war#are, and the state ta+es the
soc+s and its germs, the state should compensate A.
Art. <7B. The owner of a parcel of land is the owner of its surface
and of ever"thing under it% and he can construct thereon an" works or
make an" plantations and e-cavations which he ma" deem proper%
without detriment to servitudes and subject to special laws and
ordinances. 8e cannot complain of the reasonable re.uirements of aerial
navigation.
_
Art. $*). & possessor in the concept o# owner has in his #avor the legal presumption that he
possesses with a )ust title and he cannot be obliged to show or prove it.
_
Art. ))(). For the purposes o# prescription, )ust title must be proved% it is never presumed.
Professor Ruben F. Balane Pa)e *// of +,-
7n ,oman law there is an old saying, O;u"us est solum e"us est us=ue ad
coelum et ad in!eros :the owner o# a piece o# land owns everything above and
below it to an inde#inite e'tent;.P This is not true anymore. 0therwise,
airplanes would commit aerial trespass. >owever, it cannot be denied that the
landowner owns the land, the earth and the air. 0therwise, his ownership is
useless. "here do you draw the balance( The property owner owns the space
and subsoil as #ar as is necessary #or his practical interest and ability to assert
dominion. =eyond this, the owner has nothing. This would depend on a case
to case basis.
Art. 438. 8idden treasure belongs to the owner of the land%
building% or other propert" on which it is found.
2evertheless% when the discover" is made on the propert" of
another% or of the ?tate or an" of its subdivisions% and b" chance% one/half
thereof shall be allowed to the finder. ,f the finder is a trespasser% he
shall not be entitled to an" share of the treasure.
,f the things found be of interest to science of the arts% the ?tate
ma" ac.uire them at their just price% which shall be divided in conformit"
with the rule stated.
Art. 439. G" treasure is understood% for legal purposes% an" hidden
and unknown deposit of mone"% jewelr"% or other precious objects% the
lawful ownership of which does not appear.
7# you #ind treasure in your land, the treasure is yours.
"hen a person #inds treasure in a land that is not his, Z goes to the #inder and
Z goes to the owner o# the land, building or other property.
,e-uisites "hen a Aerson Finds Treasure in a 8and That is Not >is
1. The deposit must be hidden and un+nown :&rticle $E;.
2. There is no law#ul owner.
. *iscovery is by chance :&rticle $D;.
There is debate as to what chance means. 0ne school o# thought
thin+s that chance means there was an intent to #ind treasure e'cept
that #inding it was serendipitous. &nother school o# thought is that the
#inder should not have no intentions in the #irst place to loo+ #or
treasure.
$. *iscoverer must not be a trespasser.
Accession
&ccession is not a mode o# ownership. 7t is a mere concomitant right o#
ownership. 7t is a mere incident or conse-uence o# ownership.
Art. 440. The ownership of propert" gives the right b"
accession to ever"thing which is produced thereb"% or which is
incorporated or attached thereto% either naturall" or artificiall".
The law wisely does not de#ine accession. 7t merely tells us what accession
does.
2 Iinds o# &ccession
A. Accession +iscreta
Professor Ruben F. Balane Pa)e */, of +,-
The right pertaining to the owner o# a thing over everything
produced thereby :&rticle $$2;
'. 2atural fruits
Natural #ruits are the spontaneous products o# the soil, and the
young and other products o# animals.
= owns a male 5erman .hepherd. B owns a #emale 5erman
.hepherd. The 2 dogs breed. To whom does the litter go( To
the #emale since birth #ollows the womb :partus re=uites
ventreim;.
4. ,ndustrial fruits
7ndustrial #ruits are those produced by lands o# any +ind through
cultivation or labor.
7. Civil fruits
Civil #ruits are the rents o# buildings, the price o# leases o# lands
and other property and the amount o# perpetual or li#e annuities
or other similar income.
.toc+ dividends are civil #ruits being surplus pro#it (-ac#rac# vs.
+ei!ert).
General *ule+ Fruits belong to the owner.
Exception: The #ruits do not belong to the owner in the
#ollowing instances9
1. Aossessor in good #aith :&rticle 3$$
;
2. !su#ruct
. 8ease
4. &ntichresis :&rticle 212
;
3. Aledge
G. Accession continua
The right pertaining to the owner o# a thing over everything that is
incorporated or attached thereto either naturally or arti#icially.
1. ,mmovables
a. 3n+ustrial :&rticles $$32$34;
Art. 445. 0hatever is built% planted or sown on the
land of another and the improvements or repairs made
thereon% belong to the owner of the land% subject to the
provisions of the following articles.
_
Art. $**. & possessor in good #aith is entitled to the #ruits received be#ore the possession is
legally interrupted.
Natural and industrial #ruits are considered received #rom the time they are gathered or
severed.
Civil #ruits are deemed to accrue daily and belong to the possessor in good #aith in that
proportion.
&rt. 212. =y the contract o# antichresis the creditor ac-uires the right to receive the #ruits
o# an immovable o# his debtor, with the obligation to apply them to the payment o# the interest,
i# owing, and therea#ter to the principal o# his credit.
Art. 446. All works% sowing% and planting are
presumed made b" the owner and at his e-pense% unless
the contrar" is proved.
i. -uilding
ii. Planting
iii. +o4ing
(,ote: I also included Dean ;8nt#ia RoxasBdel ;astilloAs c#arts in our civil la4
revie4er since t#ose c#arts are more complete. 3o4ever I retained Pro!essor
-alaneAs c#arts since t#e8 are 5etter as memor8 aids. Dean del ;astilloAs c#arts
come !irst.)
'st case+
!andowner is the builderMplanterMsower and is using the materials of
another.
Art. 447. The owner of the land who makes thereon% personall" or
through another% plantings% constructions or works with the materials of
another% shall pa" their value3 and% if he acted in bad faith% he shall also be
obliged to the reparation of damages. The owner of the materials shall have
the right to remove them onl" in case he can do so without injur" to the
work constructed% or without the plantings% constructions or works being
destro"ed. 8owever% if the landowner acted in bad faith% the owner of the
materials ma" remove them in an" event% with a right to be indemnified for
damages.
!A2D#029* ,? T89
G>,!D9*MP!A2T9*M?#09*
#029* #@ T89 ;AT9*,A!?
Goo+ )ait"
Can ac-uire the materials provided he pays
#or the value thereo#.
Goo+ )ait"
>as the9
1. ,ight to receive payment #or value o#
the materials% 0,
2. 8imited right o# removal i# there would
be no in)ury to wor+ constructed, or
without plantings or constructions being
destroyed :&rticle $$C;
=a+ )ait"
Can ac-uire the materials provided he pays
the value thereo# plus damages.
Goo+ )ait"
>as the9
materials plus damages% 0,
2. &bsolute right o# removal o# the wor+
constructed in any event :whether or
not substantial in)ury is caused; plus
damages
Goo+ )ait"
Can ac-uire the materials without paying
#or the value thereo# and entitled to
conse-uential damages due to the de#ects
o# the materials
=a+ )ait"
8oses the materials completely without
receiving any indemnity
=a+ )ait" =a+ )ait"
Treat as i# both are in good #aith.
LAN# "NER IS B(IL#ER>PLANTER>S"ER "NER "F $ATERIAL

Goo+ )ait" Goo+ )ait"
1. 8imited right o# removal i# there would
be no in)ury to wor+ constructed, or
without plantings or constructions being
destroyed :&rticle $$C;% or
the materials
=a+ )ait" Goo+ )ait"
materials plus damages% or
2. &bsolute right o# removal o# the wor+
constructed in any event plus damages
Goo+ )ait"
,ight to ac-uire the improvements without
paying indemnity plus damages
=a+ )ait"
=a+ )ait"
(+ame as t#oug# acted in good !ait# under
Article *$()
=a+ )ait"
Article *$()
The land owner < builderKplanterKsower is in good #aith i# he believes that the land
belongs to him and he is ignorant o# any de#ect or #law in his title and he does not
+now that he has no right to use such materials. =ut when his good #aith is
coupled with negligence, he is liable #or damages.
The land owner < builderKplanterKsower is in bad #aith i# he ma+es use o# the land
or materials which he +nows belong to another.
The owner o# the materials is in good #aith i# he did not +now that another was
using his materials, or granting that he did +now, i# he in#ormed the user o# the
ownership and made the necessary prohibition.
The owner o# the materials is in bad #aith i# he allows another to use the materials
without in#orming him o# the ownership thereo#.
7ndemni#ication #or damages shall comprehend not only the value o# the loss
su##ered but also that o# the pro#its which the obligee #ailed to reali6e.
Pro5lem: Bay the land owner < builderKplanterKsower choose to return the
materials instead o# reimbursing their value even without the consent o# the owner
o# the materials(
7t depends9
`
Art. *$(. 7# there was bad #aith, not only on the part o# the person who built, planted or
sowed on the land o# another, but also on the part o# the owner o# such land, the rights o# one
and the other shall be the same as though both had acted in good #aith.
7t is understood that there is bad #aith on the part o# the landowner whenever the act
was done with his +nowledge and without opposition on his part.
1. 7# no damage has been made to the materials, or they have not been
trans#ormed as a result o# the construction, they may be returned at the land
owners e'pense.
2. 7# damage has been made or there has been trans#ormation, they cannot be
returned anymore.
Pro5lem: .uppose the land owner < builderKplanterKsower has already
demolished or removed the plantings, constructions or wor+s, is the owner o# the
materials still entitled to claim them(
There are di##erent opinions on this matter but the best rule seems to be that the
0B is still entitled to get them since the law ma+es no distinction. Boreover, the
land owner may insist on returning them #or evidently there is no accession.
4
nd
case+
GuilderMPlanterM?ower builds% plants% or sows on another(s land using his
own materials.
Art. 448. The owner of the land on which an"thing has been built%
sown or planted in good faith% shall have the right to appropriate as his own
the works% sowing or planting% after pa"ment of the indemnit" provided for
in articles )<A and )<C% or to oblige the one who built or planted to pa" the
price of the land% and the one who sowed% the proper rent. 8owever% the
builder or planter cannot be obliged to bu" the land if its value is
considerabl" more than that of the building or trees. ,n such case% he shall
pa" reasonable rent% if the owner of the land does not choose to appropriate
the building or trees after proper indemnit". The parties shall agree upon the
terms of the lease and in case of disagreement% the court shall fi- the terms
thereof.
!A2D #029* G>,!D9*MP!A2T9*M?#09* ,? T89 #029*
#@ T89 ;AT9*,A!?
Goo+ )ait"
>as the option to9
1. To appropriate or ac-uire whatever has
been built, planted or sown a#ter paying
indemnity which includes necessary
e'penses and use#ul e'penses.
7# he wishes to appropriate the
lu'urious improvement, he must also
pay the lu'urious e'penses.
0,
Goo+ )ait"
/ntitled to receive indemnity #or necessary,
use#ul and lu'urious e'penses :i# the land
owner appropriates the lu'urious
improvements; and has a right o# retention
over the land without having to pay #or the
rent until the land owner pays the
indemnity
Can remove use#ul improvements provided
it does not cause any in)ury
7# the land owner does not appropriate the
lu'urious improvements, he can remove
the same provided there is no in)ury to the
principal thing
Professor Ruben F. Balane Pa)e */- of +,-
2. To obligate the builderKplanter to pay
the price o# the land and the sower to
pay the proper rent. 3o4ever the land
owner cannot obligate the builderK
planter to buy i# the value o# land is
more then the building or planting.
To purchase the land at #air mar+et value
when the value is not considerably more
than the value o# the builder or trees
7# the value o# the land is considerably
more than the value o# the building or
trees, he cannot be compelled to buy the
land% in such case, he shall pay reasonable
rent i# the land owner does not choose
option 1.
7# he cannot pay the purchase price o# the
land, the land owner can re-uire him to
remove what has been built or planted.
7# he cannot pay the rent, the land owner
can e)ect him #rom the land.
=a+ )ait"
To ac-uire whatever has been built, planter
or sown by paying the indemnity plus
damages
Goo+ )ait"
7# land owner ac-uires whatever has been
built, planted or sown, he must be
indemni#ied o# the value plus damages
7# land owner does not ac-uire, he can
remove whatever has been built or planted
whether or not it will cause any in)ury and
is entitled to damages.
7# land owner does not ac-uire, he cannot
insist on purchasing the land.
Goo+ )ait"
>as the option9
1. To ac-uire whatever has been built,
planter or sown without paying #or
indemnity e'cept necessary e'penses
#or the preservation o# the land only
and lu'urious e'penses i# he decides to
ac-uire the lu'urious ornaments plus
damages
=a+ )ait"
8oses what has been built, planted or
sown.
/ntitled to reimbursement #or necessary
e'penses #or the preservation o# the land
but has no right o# retention.
Not entitled to reimbursement #or use#ul
e'penses and cannot remove the use#ul
improvements even i# the removal will not
cause any in)ury
Not entitled to reimbursement #or lu'urious
e'penses e'cept when the land owner
ac-uires the lu'urious improvements, the
value o# which is the one at the time the
Professor Ruben F. Balane Pa)e *,4 of +,-
land owner enters possession :the
depreciated value;
Can remove lu'urious improvements i# it
will not cause in)ury and 80 does not want
to ac-uire them.
2. To compel the builderK planter to pay
the price o# the land and the sower to
pay the proper rent plus damages
Bust pay the price o# the land or the rent
plus damages
. To demand the demolition or removal o#
the wor+ at the e'pense o# the
builderKplanterK sower
Bust remove lu'urious improvements i# it
will not cause in)ury and 80 does not want
to ac-uire them.
=a+ )ait" =a+ )ait"
Treat as i# both are in good #aith.
7n applying &rticle $$D, the land owner, i# in good #aith, should be given the #irst
option because he is the owner o# the land especially i# he is dealing with a person
in bad #aith. >is right is older and by the principle o# accession, he is entitled to
the ownership o# the accessory thing.
The land owner is in good #aith9
1. 7# he is ignorant o# the builderKplanterKsowers act
2. /ven i# he did +now, he e'pressed his ob)ection
. 7# he believed that the builderKplanterKsower has a right to construct, plant or
sow
0therwise, he shall be in bad #aith.
The builderKplanterKsower is in good #aith i# he thought that the land was his.
LAN# "NER
B(IL#ER>PLANTER>S"ER IS THE "NER "F
THE $ATERIALS
Goo+ )ait"
1. 8and owner can ac-uire the
improvement by paying% or
2. 8and owner can obligate builderKplanter
to buy the land or collect rent #rom
sower. 3o4ever land owner cannot
obligate the builderKplanter to buy i#
the value o# land is more then the
building or planting.
Goo+ )ait"

`
Professor Ruben F. Balane Pa)e *,* of +,-
1. ,emove materials plus damages% or
2. *emand payment #or materials plus
damages
Goo+ )ait"
.ptions
1. &ppropriate wor+s without indemnity
plus damages% or
2. *emolish plus damages% or
. Compel =A. to buy land regardless o#
the value o# the land and the =A, plus
damages
.5ligations
1. 8and owner must pay #or necessary
e'penses #or preservation.
2. 8and owner must pay =A. e'penses
under &rticle $$
i# applicable
=a+ )ait"
=a+ )ait"
Article *$()
=a+ )ait"
Article *$()
7
rd
case+
GuilderMPlanterM?ower builds% plants% or sows on another(s land with
materials owned b" third person
!A2D #029* G>,!D9*MP!A2T9*M?#09* #029* #@ T89 ;AT9*,A!?
Goo+ )ait"
>as the option
1. To ac-uire whatever has
been built, planted or
sown provided he pays
the indemnity :which
includes the value o#
what has been built,
planted or sown plus
value o# the materials;
Goo+ )ait"
To receive indemnity #rom
the land owner and has a
right o# retention over the
land until the land owner
pays
Goo+ )ait"
the builderKplanterKsower
who is principallyK primarily
liable. 7# the builderK
planterKsower is insolvent,
then demand indemnity
#rom land owner who is
subsidiarily liable. =ut has
no right o# retention against
and more so with the land
owner
2. To oblige the builderK
planterKsower to buy the
land unless the value
thereo# is considerably
more than the value o#
the building or trees
To buy the land To receive indemnity #rom
only. The land owner has
no subsidiary liability. =ut
has right o# retention.
0,
Art. **(. >e who receives the #ruits has the obligation to pay the e'penses made by a third
person in their production, gathering, and preservation.
Professor Ruben F. Balane Pa)e *,. of +,-
To remove materials i# there
will be no in)ury on the
building or trees
&N*
>as a material rent lien
against the builderKplanterK
sower #or the payment o#
the value o# the materials
Goo+ )ait"
>as the option
sown provided he pays
the indemnity :which
includes the value o#
what has been built,
planted or sown plus
value o# the materials;
Goo+ )ait"
the land owner and has a
right o# retention over the
land until the land owner
pays
=a+ )ait"
"hatever is the choice o#
the land owner
1. >e loses the materials in
#avor o# the
builderKplanterK sower
&N*
2. >e has no right to
receive indemnity #rom
the =A.
planterKsower to buy the
land unless the value
thereo# is considerably
more than the value o#
the building or trees
To buy the land
Goo+ )ait"
>as the option
sown without paying
indemnity e'cept
necessary e'penses, i#
he should ac-uire
lu'urious improvements
=a+ )ait"
8oses what has been built,
planted or sown but he is
entitled to be indemni#ied
#or necessary e'penses and
lu'urious e'penses should
the land owner ac-uire
lu'urious ornaments
>as no right o# removal
even i# it will not cause any
in)ury
=a+ )ait"
(+ince 5ot# 5uilderHplanterH
so4er and t#e o4ner o! t#e
materials are in 5ad !ait#
treat t#em as i! 5ot# in
good !ait#)
"hatever is the choice o#
the land owner, he has the
right to receive indemnity
#or the value o# the
materials #rom the builderK
planterKsower only. The
land owner has no
subsidiary liability
whatsoever.
7# land owner chooses
option 1, he has no right to
remove materials even i#
there will be no in)ury.
7# land owner chooses
option 2, he has the right o#
removal provided it does
not cause any in)ury to the
property to which it is
planter to pay the price
o# the land and the
sower to pay the proper
rent
To pay the price o# the land
. To demolish or remove
what has been built or
planted
Cannot do anything about it
so he must remove
Professor Ruben F. Balane Pa)e *,+ of +,-
attached.
>as liability #or damages to
whoever ends up owning
the building #or the in#erior
-uality o# materials.
=a+ )ait"
To ac-uire what has been
built, planted or sown by
paying the indemnity plus
damages to builderKplanterK
sower
Goo+ )ait"
land owner plus damages
Cannot insist on purchasing
the land
Goo+ )ait"
To receive indemnity #or
value o# materials #rom
builderKplanterKsower
principally or #rom land
owner in case the builderK
planterKsower is insolvent
:subsidiary liability;
=a+ )ait"
To ac-uire what has been
built, planted or sown by
paying the indemnity plus
damages to builderKplanterK
sower
Goo+ )ait"
land owner plus damages
Cannot insist on purchasing
the land
=a+ )ait"
No right to receive
indemnity #or value o#
materials #rom builderK
planterKsower nor #rom land
owner who ends up owning
the building or trees.
!A2D #029* G>,!D9*MP!A2T9*M?#09* #029* #@ T89 ;AT9*,A!?
Goo+ )ait"
1. 7# the owner o# the
materials does not
remove the materials
and the builderKplanterK
sower pays, the land
owner can ac-uire the
improvement by paying
the builderKplanterK
sower
materials does not
remove the materials,
and the builderKplanterK
sower pays, the land
owner can obligate the
builderKplanter to buy
the land or collect
rent #rom sower.
Goo+ )ait" Goo+ )ait"
1. 8imited right o# removal
i# there would be no
in)ury to wor+
constructed, or
without plantings or
constructions being
destroyed :&rticle $$C;%
or
2. ,ight to receive
payment #or value o#
the materials #rom
builderKplanterK sower.
8and owner is
subsidiarily liable.
Professor Ruben F. Balane Pa)e *,/ of +,-
>owever the land owner
cannot obligate the
builderKplanter to
buy i# the value o# land
is more then the
building or planting.
. The land owner is
subsidiarily liable to the
owner o# the materials.
Goo+ )ait"
1. 8and owner can ac-uire
the improvement by
paying% or
2. 8and owner can obligate
the land or collect rent
#rom sower. >owever
land owner cannot
obligate the builderK
planter to buy i# the
value o# land is more
then the building or
planting.
. 80 not subsidiary liable
#or cost o# materials
Goo+ )ait"
Ieep what was built,
planted or sown without
indemnity to the owner o#
the materials plus damages
#rom the owner o# the
materials
=a+ )ait"
8ose the materials to the
without right to indemnity
Goo+ )ait"
.ptions
1. &ppropriate wor+s
without indemnity plus
damages% or
2. *emolish plus damages%
or
. Compel builderKplanter
to buy land regardless o#
the value o# the land
and the sower to pay
rent, plus damages
.5ligations
1. 8and owner must pay
#or necessary e'penses
#or preservation.
2. 8and owner must pay
e'penses under &rticle
$$
@
i# applicable
=a+ )ait" =a+ )ait"
,ight to receive payment
#or value o# the materials
=a+ )ait" =a+ )ait" =a+ )ait"
*
Art. **(. >e who receives the #ruits has the obligation to pay the e'penses made by a third
person in their production, gathering, and preservation.
Professor Ruben F. Balane Pa)e *,, of +,-
(+ame as t#oug# acted in
good !ait# under Article
*$(
)
*$()
*$()
=a+ )ait"
.ubsidiarily liable to the
owner o# the materials
#or value o# materials
Goo+ )ait"
1. ,emove improvements
plus damages against
the land owner% or
2. *emand payment #or
improvement plus
damages
Goo+ )ait"
1. ,emove materials i#
possible without in)ury
2. Collect value o#
materials #rom
builderKplanterK sower.
8and owner is
subsidiarily liable
=a+ )ait"
materials does not
remove the materials
and the
pays, the land owner
can ac-uire the
the
materials does not
and the
pays, the land owner
can obligate the
#rom the sower.
>owever, the land
owner cannot obligate
the =A to buy i# the
value o# land is more
planting.
. The land owner is
1. ,ight to receive
payment #or value o#
materials #rom the
and the land owner is
subsidiarily liable plus
damages% or
2. &bsolute right o#
removal o# the wor+
constructed in any event
plus damages
Goo+ )ait"
materials does not
remove pays, the land
1. ,emove materials i#
possible without in)ury
owner can ac-uire the
the builderK
planterKsower.
materials does not
and the builder, planter
or sower pays, the land
owner can obligate the
#rom sower. >owever
the land owner cannot
obligate the
builderKplanter to buy i#
the value o# land is more
planting.
. 8and owner is
builderK planterKsower.
2. Collect value o#
materials #rom
the
builderKplanterKsower.
The land owner is
subsidiarily liable #or
value o# the materials
1. ,ight to ac-uire the
materials without paying
indemnity plus damages
2. ,emove improvement
plus damages% or
. *emand payment #or
improvement plus
damages
=a+ )ait"
8oses right to materials
without right to indemnity
7# the option is with the land owner :i.e. to buy the improvement or sell the land;,
the land owner cannot re#use to e'ercise that option. The court may compel the
land owner to e'ercise such option.
7# the land owner opts to buy the improvements #rom the builderKplanterKsower,
the land owner must pay the value o# the builderKplanterKsower.
=uilderKplanterKsower has the right o# retention until the land owner pays.
7# the land owner chooses to buy the improvement, the builderKplanterKsower can
sue to re-uire the land owner to pay him. The obligation has now been converted
to a monetary obligation.
There is no trans#er o# ownership o# the improvements until the land owner pays
the builderKplanterKsower.
7n .rtiz vs. Ka8anan the .C said, O&ll the #ruits that the builderKplanterKsower
may receive #rom the time that he is summoned, or when he answers the
complaint, must be delivered or paid by him to the owner or law#ul possessor.
.uch is the time when his good #aith has ceased. "hile the builderKplanterKsower
retains the property until he is reimbursed #or necessary and use#ul e'penses, all
the #ruits the =A. receives #rom the moment his good #aith ceases must be
de#erred or paid by him to the land owner. The builderKplanterKsower may,
however, secure the reimbursement o# his e'penses by using the #ruits to pay it
o## :deduct the value o# the #ruits he receives #rom the time his good #aith ceases
#rom the reimbursement due him;.
Aro#essor =alane doesnt agree with the ruling in .rtiz vs. Ka8anan. 7t seems
inconsistent to say that the builderKplanterKsower retains ownership o# the
improvement until he is paid yet the #ruits derived #rom such improvement should
go to the land owner.
7# the land owner chooses to sell the land to the builderKplanter, the
builderKplanter will have to pay the value o# the land based on the prevailing
mar+et value at the time o# payment.
7# the land owner chooses to sell the land and the builderKplanter is unable or
unwilling to pay, the 8and owner has options9
1. &ssume a lessor2lessee relationship% or
2. 8and owner can have the improvements removed and in the meantime
demand rental% or
. 8and owner can have the land and the improvements sold at a public auction%
the proceeds o# which shall be applied pre#erentially to the value o# the land.
The land owner cannot compel the sower to buy the land. 8and owner can either
buy the improvement or demand rental.
7# the value o# the land is considerably greater than the value o# the improvement,
then the land owner can only choose between buying the improvement or
demanding rental #rom the builderKplanterKsower.
b. #atural :&rticles $3C2$43;
i. Alluvion or accretion :&rticle $3C;
Art. 457. To the owners of lands adjoining the
banks of rivers belong the accretion which the"
graduall" receive from the effects of the current of the
waters.
&rticle $3C applies only to lands ad)oining ban+s o# rivers.
7t does not apply by analogy to lands ad)oining all bodies
o# water. >owever, &rticle D$ o# the 8aw o# "aters
applies the same principle to la+es, streams and cree+s.
The owners o# lands ad)oining the ban+s o# rivers
:riparian land; shall own the accretion which they
gradually receive.
&ccretion denotes the act or process by which a riparian
land gradually and imperceptively receives addition made
by the water to which the land is contiguous.
&lluvion re#ers to the deposit o# soil.
,ationale #or this bene#it9 to compensate the owners #or
the losses which they may su##er by erosion due to the
destructive #orces o# the water (?errer vs. -autista).
,e-uisites o# &ccretion
1. The accumulation o# soil is gradual and imperceptible.
2. 7t is the result o# the action o# the water o# the river.
. *eposits made by human intervention are e'cluded.
$. The land where the accretion ta+es place is ad)acent
to the ban+ o# the river.
&ccretion operates ipso "ure. >owever, the additional
area is not covered by a Torrens title since it is not
described in the title. The riparian owner must register
the additional area.
Art. 458. The owners of estates adjoining ponds
or lagoons do not ac.uire the land left dr" b" the
natural decrease of the waters% or lose that inundated
b" them in e-traordinar" floods.
&rticle $3D is does not tal+ o# accession. "hen a body o#
water dries up, the owner o# the ad)oining estate does
not own the dried up land. There is no alluvion since soil
was not deposited in the ad)oining estate. .imilarly, i#
the land o# the ad)oining owner should be #looded, such
land does not become part o# the public dominion i# the
#lood will subside.
ii. Avulsion
Art. 459. 0henever the current of a river%
creek or torrent segregates from an estate on its
bank a known portion of land and transfers it to
another estate% the owner of the land to which the
segregated portion belonged retains the ownership
of it% provided that he removes the same within two
"ears.
&vulsion is the removal o# a considerable -uantity o#
soil #rom 1 estate and its anne'ation to another by
the perceptible action o# water.
7n alluvium, the accumulation o# the soil is gradual.
The soil belongs to the owner o# the property where
the soil attaches. The soil cannot be identi#ied.
7n avulsion, the accumulation o# soil is sudden and
abrupt. The soil can be identi#ied. The soil belongs to
the owner o# the property #rom where the soil was
ta+en. >owever, the owner has to 2 years to get the
soil. 7# he does not get the soil within 2 years, the
owner o# the property where the soil currently is shall
own the soil.
&vulsion is a case o# delayed accession (<-L Re8es).
Art. 460. Trees uprooted and carried awa"
b" the current of the waters belong to the owner of
the land upon which the" ma" be cast% if the
owners do not claim them within si- months. ,f
such owners claim them% the" shall pa" the
Professor Ruben F. Balane Pa)e *,- of +,-
e-penses incurred in gathering them or putting
them in a safe place.
,.7E: 7n the case o# uprooted trees there is no
accession.
The owner o# the land #rom which the trees came
#rom should claim the tree within 4 months. &ll that
&rticle $41 re-uires is claim and not removing.
&lthough &rt. $41 is silent, the owner o# the tree
should remove the trees within a reasonable time. 7#
he does not claim within 4 months, the land owner
where the tree is shall become the owner.
iii. ;#ange o! river course
Art. 461. *iver beds which are abandoned
through the natural change in the course of the
waters ipso .acto belong to the owners whose
lands are occupied b" the new course in proportion
to the area lost. 8owever% the owners of the lands
adjoining the old bed shall have the right to ac.uire
the same b" pa"ing the value thereof% which value
shall not e-ceed the value of the area occupied b"
the new bed.
Art. 462. 0henever a river% changing its
course b" natural causes% opens a new bed through
a private estate% this bed shall become of public
dominion.
Art. 463. 0henever the current of a river
divides itself into branches% leaving a piece of land
or part thereof isolated% the owner of the land
retains his ownership. 8e also retains it if a portion
of land is separated from the estate b" the current.
,e-uisites
1. The change in the river course must be sudden
2. The change must be permanent
. The change must natural
$. The river bed must be abandoned by the
government
&ccording to commentators, this re-uisite has
been repealed by &rticle $41. >owever, the
"ater Code provides that the government can
only return the river to the old bed i# the
government sees #it. This is possible
especially i# there are already e'isting hydro2
electric plants and irrigation pro)ects.
3. The river must continue to e'ist
>as &rticle $41 been superseded by J3D
@
o# the "ater
Code(
J3D provides that the government has the option to
let the change o# river course remain as is or to bring
it bac+. 7t also provides that the owners o# a##ected
lands :those who lost land; may underta+e to return
the river to the old bed provided they get a permit
#rom the government.
J3D does not contain the 2
nd
sentence o# &rticle $41.
7s the 2
nd
sentence repealed(
&ccording to Aro#essor =alane, no it is not since they
are not inconsistent. Thus, the ad)acent owners o#
the old bed can buy the old river bed.
The old river bed according to &rticle $41 and J 3D
shall be ac-uired by the people who lost their land in
proportion to their land lost. This is #air but it is
complicated. First, how do you compute the
proportions( .econd, what i# the old river bed is #ar
away(
The new river bed is a case o# de !acto eminent
domain.
There is no accession under &rticle $4. The river
merely divides itsel# into branches.
iv. ?ormation o! island
Art. 464. ,slands which ma" be formed on
the seas within the jurisdiction of the Philippines%
on lakes% and on navigable or floatable rivers
belong to the ?tate.
Art. 465. ,slands which through successive
accumulation of alluvial deposits are formed in
non/navigable and non/floatable rivers% belong to
the owners of the margins or banks nearest to each
of them% or to the owners of both margins if the
island is in the middle of the river% in which case it
shall be divided longitudinall" in halves. ,f a single
island thus formed be more distant from one
margin than from the other% the owner of the
nearer margin shall be the sole owner thereof.
*
Article $/. "hen a river or stream suddenly changes its course to traverse private lands, the
owners o# the a##ected lands may not compel the government to restore the river to its #ormer
be% nor can they restrain the government #rom ta+ing steps to revert the river or stream to its
#ormer course. The owners o# the lands thus a##ected are not entitled to compensation #or any
damage sustained thereby. >owever, the #ormer owners o# the new bed shall be the owners o#
the abandoned bed in proportion to the area lost by each.
The owners o# the a##ected lands may underta+e to return the river or stream to its old
bed at their own e'pense% Provided That a permit there#or is secured #rom the .ecretary o#
Aublic "or+s, Transportation and Communication and wor+s pertaining thereto are commenced
within two years #rom the change in the course o# the river or stream.
!nder &rticle $4$, there is no accession. &ll belong to
the state < islands which are #ormed on Ahilippine
seas, on la+es and on navigable rivers. The .C
however has not said what +ind o# property such the
islands were < patrimonial or o# the public dominion.
!nder &rticle $43, i# the island is #ormed in a non2
navigable river, there is accession. 7# the island is
#ormed in a navigable river, then it belongs to the
state.
J3E
o# the "ater Code de#ines what is navigable.

2. ;ovables
a. A+6unction or con6unction :&rticles $442$C1;
Art. 466. 0henever two movable things belonging
to different owners are% without bad faith% united in such
a wa" that the" form a single object% the owner of the
principal thing ac.uires the accessor"% indemnif"ing the
former owner thereof for its value.
Art. 467. The principal thing% as between two
things incorporated% is deemed to be that to which the
other has been united as an ornament% or for its use or
perfection.
Art. 468. ,f it cannot be determined b" the rule
given in the preceding article which of the two things
incorporated is the principal one% the thing of the greater
value shall be so considered% and as between two things
of e.ual value% that of the greater volume.
,n painting and sculpture% writings% printed matter%
engraving and lithographs% the board% metal% stone%
canvas% paper or parchment shall be deemed the
accessor" thing.
Art. 469. 0henever the things united can be
separated without injur"% their respective owners ma"
demand their separation.
2evertheless% in case the thing united for the use%
embellishment or perfection of the other% is much more
precious than the principal thing% the owner of the former
ma" demand its separation% even though the thing to
which it has been incorporated ma" suffer some injur".
Art. 470. 0henever the owner of the accessor"
thing has made the incorporation in bad faith% he shall
lose the thing incorporated and shall have the obligation
to indemnif" the owner of the principal thing for the
damages he ma" have suffered.
_
Article $2. ,ivers, la+es and lagoons may, upon the recommendation o# the Ahilippine Coast
5uard, be declared navigable either in whole or in part.
,f the one who has acted in bad faith is the owner
of the principal thing% the owner of the accessor" thing
shall have a right to choose between the former pa"ing
him its value or that the thing belonging to him be
separated% even though for this purpose it be necessar"
to destro" the principal thing3 and in both cases%
furthermore% there shall be indemnit" for damages.
,f either one of the owners has made the
incorporation with the knowledge and without the
objection of the other% their respective rights shall be
determined as though both acted in good faith.
Art. 471. 0henever the owner of the material
emplo"ed without his consent has a right to an indemnit"%
he ma" demand that this consist in the deliver" of a thing
e.ual in kind and value% and in all other respects% to that
emplo"ed% or else in the price thereof% according to e-pert
appraisal.
There is ad)unction or con)unction when 2 movables are
attached to each other such that separation is impossible
without in)ury. For e'ample, the paint o# = is used on the
canvass o# C.
Gasic *ule+ 7# separation is possible without in)ury, then
should separate. 7# this is not possible, then ad)unction or
con)unction.
There are 2 parties here9 the owner o# the principal ob)ect
and the owner o# the accessory.
$ .ituations9
1. =oth owner o# the principal ob)ect and the owner o# the
accessory are in good #aith
The owner o# the principal ob)ect ac-uires the thing
but with the duty to indemni#y the owner o# the
accessory. :&rticle $44;. >owever, the owner o# the
accessory has a right to demand separation even
though there may be damage i# the accessory is more
valuable.
2. The owner o# the principal ob)ect is in good #aith and the
owner o# the accessory is in bad #aith.
The owner o# the accessory loses the thing plus is
liable #or damages :&rticle $C1;
. The owner o# the principal ob)ect is in bad #aith and the
owner o# the accessory is in good #aith.
&0 has 2 options9
a. *emand value o# the accessory plus damages% or
b. *emand separation even i# the principal will be
destroyed plus damages :&rticle $C1, ?2;
$. 0wner o# the principal ob)ect and the owner o# the
accessory both in bad #aith
Treat as i# both are in good #aith :&rticle $3 by
analogy;.
,ules to *etermine "hich is the Arincipal and "hich
is the &ccessory
a. Arimary rule < importance or purpose
For e'ample, the watch is the principal :to tell
time; while the bracelet is the accessory :to
wear;.
b. .econdary rule 2 value
c. Tertiary rule < volume or mass
d. Fourth rule < merits, utility, value :combination;
,.7E: 0ne normally does not go beyond the 2
nd
test.
Iinds o# &d)unction o# Con)unction
1. /ngra#tment
2. &ttachment
a. !erruminatio
5. plum5atura
. "eaving
$. Aainting
3. "riting
b. *oixtion or *on.usion :&rticles $C2, $;
Art. 472. ,f b" the will of their owners two things
of the same or different kinds are mi-ed% or if the mi-ture
occurs b" chance% and in the latter case the things are not
separable without injur"% each owner shall ac.uire a right
proportional to the part belonging to him% bearing in mind
the value of the things mi-ed or confused.
Art. 473. ,f b" the will of onl" one owner% but in
good faith% two things of the same or different kinds are
mi-ed or confused% the rights of the owners shall be
determined b" the provisions of the preceding article.
,f the one who caused the mi-ture or confusion
acted in bad faith% he shall lose the thing belonging to him
thus mi-ed or confused% besides being obliged to pa"
indemnit" for the damages caused to the owner of the
other thing with which his own was mi-ed.
Commi'tion re#ers to the mi'ture o# solids :i.e. the mi'ture
o# rice o# di##erent varieties;. Con#usion re#ers to the mi'ture
o# li-uids :i.e. mi'ture o# di##erent gasoline;
,ules9
1. 7# caused by the will o# the parties or by chance or by the
will o# 1 party but is in good #aith, then there will be a co2
ownership based on proportional value :not volume;.
2. 7# caused by the will o# 1 party in bad #aith, then the
party in bad #aith loses the entire thing.
.ome commentators say that commi'tion or con#usion is not
a true case o# accession since there is no principal or
accessory. &lso, there is a co2ownership. 7n accession,
everything goes to 1 party.
c. 5peci.ication :&rticle $C$;
Art. 474. #ne who in good faith emplo"s the
material of another in whole or in part in order to make a
thing of a different kind% shall appropriate the thing thus
transformed as his own% indemnif"ing the owner of the
material for its value.
,f the material is more precious than the
transformed thing or is of more value% its owner ma"% at
his option% appropriate the new thing to himself% after
first pa"ing indemnit" for the value of the work% or
demand indemnit" for the material.
,f in the making of the thing bad faith intervened%
the owner of the material shall have the right to
appropriate the work to himself without pa"ing an"thing
to the maker% or to demand of the latter that he indemnif"
him for the value of the material and the damages he ma"
have suffered. 8owever% the owner of the material cannot
appropriate the work in case the value of the latter% for
artistic or scientific reasons% is considerabl" more than
that of the material.
.peci#ication is the giving o# a new #orm to another persons
material through the application o# labor.
>ere there are 2 parties9 the material owner and the ma+er.
$ .ituations
1. =oth material owner and ma+er are in good #aith
Ba+er ac-uires the thing with the duty to indemni#y
the material owner :&rticle $C$, ?1;.
>owever, i# the material is much more precious then
the material owner has 2 options9
a. To appropriate the thing and pay the ma+er% or
b. To sell the material to ma+er
2. Ba+er is in bad #aith and the material owner is in good
#aith
Baterial owner has 2 options :&rticle $C1;9
a. &ppropriate the thing without indemnity to ma+er
plus damages% or
This option is not available i# the value o# the
wor+ is considerably more than the material.
b. .ell the material to ma+er plus damages
. Ba+er is in good #aith and the material owner is in bad
#aith
Ba+er appropriates without the duty to pay the
material owner plus damages :&rticle $C1 by
analogy;.
$. Ba+er and the material owner are both in bad #aith
Treat both in good #aith :&rticle $3 by analogy;.
,,. Co/#wnership
Co2ownership is the right o# common dominion which 2 or more persons have
in a spiritual :a.6.a. ideal or ali-uot; part o# a thing which is not physically
divided.
7n co2ownership, there is only 1 ownership, but ii is shared ownership.
/ach co2owner owns a #ractional or an ideal part o# the ob)ect but they cannot
point to a speci#ic part o# the ob)ect.
Co2ownership is not encouraged since it is very unwieldy. 7t is very easy to
have disagreements between co2owners.
&. .ources o# Co20wnership
1. =y law
8aw may mandate co2ownership :i.e. party wall;
2. =y contract
. =y chance
/'amples are commi'tion or con#usion
$. =y occupation
7n Punzalan vs. -oon Liat the .C said that the #ishermen are co2owners
o# the whale they caught.
3. =y succession
Compulsory, testamentary, intestate
=. Characteristics o# Co20wnership
1. Bore than 1 owner
2. 1 physical unit or whole divided into ideal or #ractional shares
. /ach #ractional share is de#inite in amount but not physically segregated
#rom the rest
$. &s to the physical unit, each co2owner must respect the other co2owners in
its common use, en)oyment and preservation :&rticle $D;
3. &s to the ali-uot share, each co2owner holds absolute control :&rticle $E;
4. No )uridical personality o# its own
C. Co20wnership *istinguished #rom Aartnership
C#/#029*?8,P PA*T29*?8,P
Co2ownership may arise #rom other causes
:i.e. will or law;
Aartnerships are created only by agreement
or contract
The purpose o# co2ownership is #or
collective en)oyment and to maintain the
The purpose o# partnership is pro#it
unity and preservation o# the thing owned
in common
7n co2ownership, there is no )uridical
personality distinct #rom the members
7n partnership, there is a )uridical
personality distinct #rom the members
& stipulation that a co2ownership be
created #or a period o# more than 11 years
is void
& partnership may be created #or a period
o# more than 11 years
7n co2ownership, a special authority is
needed #or representation among co2
owners
7n partnership, there is generally mutual
representation by the partners
7n a co2ownership there is #reedom o#
disposition o# a co2owners share
7n a partnership, a partner cannot trans#er
his rights to
rd
persons without the
consent o# the others
*eath or incapacity o# 1 o# the co2owners
have no e##ect on the e'istence o# a co2
ownership
The partnership can be e'tinguished by the
death or incapacity o# 1 o# the partners
The distribution o# pro#its is invariable in
co2ownership by virtue o# &rticle $D3
The distribution o# pro#its is sub)ect to
stipulation in partnerships
Art. 485. The share of the co/owners% in the benefits as well as in
the charges% shall be proportional to their respective interests. An"
stipulation in a contract to the contrar" shall be void.
The portions belonging to the co/owners in the co/ownership shall
be presumed e.ual% unless the contrar" is proved.
& co2owners share in the #ruits and e'penses is always dependent on the co2
owners interest. &ny agreement to the contrary is void.
& ma+es a will. & gives #arm to Mason, Mo)i and ,on in e-ual shares. >owever,
the will states that the sharing in #ruits and e'penses in not e-ual. Mason gets
D1N, Mo)i gets 13N, and ,on 3N. 7s this valid( This is a debatable point
according to Aro#essor =alane. .ome commentators say it is valid since &rt.
$D3 re#ers to contractual agreements. .ome commentators argue that it is not
valid. &lthough &rt. $D3 re#ers to contractual agreements, it should e'tend to
other sources o# co2ownership since &rt. $D3 is an e'pression o# public policy.
Art. 486. 9ach co/owner ma" use the thing owned in common%
provided he does so in accordance with the purpose for which it is
intended and in such a wa" as not to injure the interest of the co/
ownership or prevent the other co/owners from using it according to their
rights. The purpose of the co/ownership ma" be changed b" agreement%
e-press or implied.
Co2owners must respect the rights o# the other co2owners.
7n Pardell vs. -artolome 2 sisters owned a 2 story building. The #irst #loor was
by rented out. The second #loor was being occupied by 1 sister. The other
sister was in .pain. The .C said that the sister occupying the second #loor
need not pay rent. The #act that she used the whole second #loor is irrelevant.
.he did not pre)udice the rights o# her sister in .pain precisely because she
was in .pain. =ut with respect to the #irst #loor which was occupied by the
husband o# one o# the sisters, the husband should pay his sister2in2law Z o#
the rent #or such portion. 0therwise, his sister2in2law would be pre)udiced.
&s a co2owner, one can use all o# the physical unit. For e'ample, a co2owner
uses the entire car, not )ust a portion o# the car. & co2owner does not have to
pay rent #or the use o# the thing co2owned.
Art. 487. An" one of the co/owners ma" bring an action in
ejectment.
&ny one o# the co2owners may bring an action in e)ectment.
&, =, C, *, and / are co2owners o# a lot which is being s-uatted. & #iles an
e)ectment suit. & wins. &ll the other co2owners bene#it. *o the other co2
owners share in the e'pense( Hes, one can argue that its a necessary
e'pense.
&, =, C, *, and / are co2owners o# a lot which is being s-uatted. & #iles an
e)ectment suit. & loses. Bay the other sue #or e)ectment( No, it is barred by
prior )udgment.
&,=, and C bought a boo+ on credit. They are co2owners o# a boo+. 7n an
action by the creditor against the co2owners, the creditor must sue all. &rticle
$DC contemplates a situation when it is the co2owner who #iles the suit not
when they are the de#endants.
&rticle $DC is a case where 1 co2owner can bind the other. The other instance
is &rticle $DE.
Art. 488. 9ach co/owner shall have a right to compel the other co/
owners to contribute to the e-penses of preservation of the thing or right
owned in common and to the ta-es. An" one of the latter ma" e-empt
himself from this obligation b" renouncing so much of his undivided
interest as ma" be e.uivalent to his share of the e-penses and ta-es. 2o
such waiver shall be made if it is prejudicial to the co/ownership.
/'penses #or the preservation o# the thing owned in common as well as ta'es
must be shouldered by every co2owner in proportion to their interest.
& co2owner has 2 options9
1. Aay #or the necessary e'penses or ta'es
2. Can #or#eit so much o# his share which is e-uivalent to his interest to the
co2owner
who paid #or the necessary e'penses or ta'es
The co2owner who made the advance has a right o# reimbursement. The
advancing co2owner only has the right to re-uire payment. >e may not
demand the share o# the co2owner.
Art. 489. *epairs for preservation ma" be made at the will of one
of the co/owners% but he must% if practicable% first notif" his co/owners of
the necessit" for such repairs. 9-penses to improve or embellish the thing
shall be decided upon b" a majorit" as determined in article <D4.
,epairs #or preservation may be made at the will o# 1 o# the co2owners.
&s much as possible, notice should be given to the other co2owners. The lac+
o# notice only gives rise to the presumption that the repairs were not
necessary. >owever, this can be proven otherwise.
&rticle $DE is a case where 1 co2owner can bind the other. The other instance
is &rticle $DC.
!se#ul or ornamental e'penses need a ma)ority. Ba)ority is computed not by
counting heads but by ma)ority o# the controlling interest in the co2ownership.
Art. 490. 0henever the different stories of a house belong to
different owners% if the titles of ownership do not specif" the terms under
which the" should contribute to the necessar" e-penses and there e-ists
no agreement on the subject% the following rules shall be observed+
5'6 The main and part" walls% the roof and the other things used in
common% shall be preserved at the e-pense of all the owners in
proportion to the value of the stor" belonging to each3
546 9ach owner shall bear the cost of maintaining the floor of his
stor"3 the floor of the entrance% front door% common "ard and
sanitar" works common to all% shall be maintained at the e-pense
of all the owners pro rata3
576 The stairs from the entrance to the first stor" shall be maintained
at the e-pense of all the owners pro rata% with the e-ception of
the owner of the ground floor3 the stairs from the first to the
second stor" shall be preserved at the e-pense of all% e-cept the
owner of the ground floor and the owner of the first stor"3 and so
on successivel".
This hardly e'ists anymore.
Condominium 8aw :,& $C24 as amended by ,.&. No. CDEE;
Bost condominiums are corporations. 7# the condominium is a co2
ownership, then the provisions o# the Civil Code are relevant.
7mportant .ections
1. J2 2 *e#inition
Sec% 2% A C-*+-/)*)1/ )" * )*%e(e"% )* (e$ 0(-0e(%, c-*")"%)*. -'
"e0(%e )*%e(e"%" )* 1*)% )* (e")+e*%)$4 )*+1"%()$ -( c-//e(c)$ 21)$+)*.
-( )* * )*+1"%()$ e"%%e *+ * 1*+)5)+e+ )*%e(e"%" )* c-//-*4 +)(ec%$, *+
)*+)(ec%$,4 )* %#e $*+4 -( %#e 001(%e**% )*%e(e"% -' %#e)( (e"0ec%)5e 1*)%" )*
%#e c-//-* (e".
T#e (e$ ().#% )* c-*+-/)*)1/ /, 2e -!*e("#)0 -( *, )*%e(e"% )*
(e$ 0(-0e(%, (ec-.*)3e+ 2, $! -* 0(-0e(%, )* %#e C)5)$ C-+e *+ -%#e(
0e(%)*e*% $!".
2. J$ < /nabling or master deed :contents and necessary re-uirements;
:amended;
Sec% C% T#e 0(-5)")-*" -' %#)" Ac% "#$$ 00$, %- 0(-0e(%, +)5)+e+ -(
%- 2e +)5)+e+ )*%- c-*+-/)*)1/ -*$, )' %#e(e "#$$ 2e (ec-(+e+ )* %#e
Re.)"%e( -' Dee+" -' %#e 0(-5)*ce -( c)%, )* !#)c# %#e 0(-0e(%, $)e"4 *+ +1$,
**-%%e+ )* %#e c-((e"0-*+)*. ce(%)')c%e -' %)%$e -' %#e $*+4 )' %#e $%%e( #+
2ee* 0%e*%e+ -( (e.)"%e(e+ 1*+e( e)%#e( %#e L*+ Re.)"%(%)-* -( C+"%($
Ac%"4 * e*2$)*. -( /"%e( +ee+ !#)c# "#$$ c-*%)*4 /-*. -%#e("4 %#e
'-$$-!)*.@
C De"c()0%)-* -' %#e $*+ -* !#)c# %#e 21)$+)*. -( 21)$+)*." *+
)/0(-5e/e*%" (e %- 2e $-c%e+>
2C De"c()0%)-* -' %#e 21)$+)*. -( 21)$+)*."4 "%%)*. %#e *1/2e( -'
"%-()e" *+ 2"e/e*%4 %#e *1/2e( -' 1*)%" *+ %#e)( cce""-()e"4 )'
*,>
cC De"c()0%)-* -' %#e c-//-* (e" *+ 'c)$)%)e">
+C A "%%e/e*% -' %#e e;c% *%1(e -' %#e )*%e(e"% cI1)(e+ -( %- 2e
cI1)(e+ 2, %#e 01(c#"e+ )* %#e "e0(%e 1*)%" *+ %#e c-//-*
(e" -' %#e c-*+-/)*)1/ 0(-Bec%". W#e(e %)%$e %- -( %- 001(%e**%
)*%e(e"%" )* %#e c-//-* (e" )" %- 2e #e$+ 2, c-*+-/)*)1/
c-(0-(%)-*4 "%%e/e*% %- %#)" e''ec% "#$$ 2e )*c$1+e+>
eC S%%e/e*% -' %#e 01(0-"e" '-( !#)c# %#e 21)$+)*. -( 21)$+)*." *+
ec# -' %#e 1*)%" (e )*%e*+e+ -( (e"%()c%e+ " %- 1"e>
'C A ce(%)')c%e -' %#e (e.)"%e(e+ -!*e( -' %#e 0(-0e(%,4 )' #e )" -%#e(
%#* %#-"e e;ec1%)*. %#e /"%e( +ee+4 " !e$$ " -' $$ (e.)"%e(e+
#-$+e(" -' *, $)e* -( e*c1/2(*ce" -* %#e 0(-0e(%,4 %#% %#e,
c-*"e*% %- %#e (e.)"%(%)-* -' %#e +ee+>
.C T#e '-$$-!)*. 0$*" "#$$ 2e 00e*+e+ %- %#e +ee+ " )*%e.($ 0(%"
%#e(e-'@
1. A "1(5e, 0$* -' %#e $*+ )*c$1+e+ )* %#e 0(-Bec%4 1*$e"" "1(5e,
0$* -' %#e "/e 0(-0e(%, #+ 0(e5)-1"$, 2ee* ')$e+ )* ")+
-'')ce.
2. A +).(//%)c '$--( 0$* -' %#e 21)$+)*. -( 21)$+)*." ec# 1*)%4
)%" (e$%)5e $-c%)-* *+ 00(-;)/%e +)/e*")-*".
#C A*, (e"-*2$e (e"%()c%)-* *-% c-*%((, %- $!4 /-($"4 -( 012$)c
0-$)c, (e.(+)*. %#e ().#% -' *, c-*+-/)*)1/ -!*e( %- $)e*%e -(
+)"0-"e -'' #)" c-*+-/)*)1/.
T#e e*2$)*. -( /"%e( +ee+ /, 2e /e*+e+ -( (e5-&e+ 10-*
(e.)"%(%)-* -' * )*"%(1/e*% e;ec1%e+ 2, ")/0$e /B-()%, -' %#e (e.)"%e(e+
-!*e(" -' %#e 0(-0e(%,@ <rovided, T#% )* c-*+-/)*)1/ 0(-Bec% e;c$1")5e$,
'-( e)%#e( (e")+e*%)$ -( c-//e(c)$ 1"e4 ")/0$e /B-()%, "#$$ 2e -* 0e(
1*)% -' -!*e("#)0 2")" *+ %#% )* %#e c"e -' /);e+ 1"e4 ")/0$e /B-()%,
"#$$ 2e -* '$--( (e -' -!*e("#)0 2")"@ <rovided, frther, T#% 0()-(
*-%)')c%)-*" %- $$ (e.)"%e(e+ -!*e(" (e +-*e@ *+ <rovided, finally, T#%
*, /e*+/e*% -( (e5-c%)-* $(e+, +ec)+e+ 2, ")/0$e /B-()%, -' $$
(e.)"%e(e+ -!*e(" "#$$ 2e "12/)%%e+ %- %#e H-1")*. *+ L*+ U"e
Re.1$%-(, B-(+ *+ %#e c)%,J/1*)c)0$ e*.)*ee( '-( 00(-5$ 2e'-(e )% c*
2e (e.)"%e(e+. U*%)$ (e.)"%(%)-* -' (e5-c%)-*4 %#e 0(-5)")-*" -' %#)" Ac%
"#$$ c-*%)*1e %- 00$, %- "1c# 0(-0e(%,. +As amended !y R%A% ,o% D3//4
. J3 < "hat trans#er o# ownership includes :includes citi6enship
re-uirements;
Sec% 1% A*, %(*"'e( -( c-*5e,*ce -' 1*)% -( * 0(%/e*%4 -'')ce
-( "%-(e -( -%#e( "0ce %#e(e)*4 "#$$ )*c$1+e %#e %(*"'e( -( c-*5e,*ce -'
%#e 1*+)5)+e+ )*%e(e"% )* %#e c-//-* (e" -( )* 0(-0e( c"e4 %#e
/e/2e("#)0 -( "#(e #-$+)*." )* %#e c-*+-/)*)1/ c-(0-(%)-*@ <rovided,
however, T#% !#e(e %#e c-//-* (e" )* %#e c-*+-/)*)1/ 0(-Bec% (e
#e$+ 2, %#e -!*e(" -' "e0(%e 1*)%" " c-<-!*e(" #e(e-'4 *- c-*+-/)*)1/
1*)% %#e(e)* "#$$ 2e c-*5e,e+ -( %(*"'e((e+ %- 0e("-*" -%#e( %#* F)$)0)*-
c)%)3e*" -( c-(0-(%)-* % $e"% 80L -' %#e c0)%$ "%-c& -' !#)c# 2e$-*. %-
F)$)0)*- c)%)3e*"4 e;ce0% )* c"e" -' #e(e+)%(, "1cce"")-*. W#e(e %#e
c-//-* (e" )* c-*+-/)*)1/ 0(-Bec% (e #e$+ 2, c-(0-(%)-*4 *-
%(*"'e( -( c-*5e,*ce -' 1*)% "#$$ 2e 5$)+ )' %#e c-*c-/)%*% %(*"'e( -'
%#e 001(%e**% /e/2e("#)0 -( "%-c&#-$+)*. )* %#e c-(0-(%)-* !)$$ c1"e
%#e $)e* )*%e(e"% )* "1c# c-(0-(%)-* %- e;cee+ %#e $)/)%" )/0-"e+ 2,
e;)"%)*. $!".
$. J4 < 7ncidents o# condominium grant
Sec% -% U*$e"" -%#e(!)"e e;0(e""$, 0(-5)+e+ )* %#e e*2$)*. -(
/"%e( +ee+ -( %#e +ec$(%)-* -' (e"%()c%)-*"4 %#e )*c)+e*%" -'
c-*+-/)*)1/ .(*% (e " '-$$-!"@
C T#e 2-1*+(, -' %#e 1*)% .(*%e+ (e %#e )*%e()-( "1('ce" -' %#e
0e()/e%e( !$$"4 '$--("4 ce)$)*.4 !)*+-!" *+ +--(" %#e(e-'@
<rovided, %#% )* %#e c"e -' * )*+1"%()$ e"%%e c-*+-/)*)1/
0(-Bec%"4 !#e(e)* !#-$e 21)$+)*."4 0$*%" -( 'c%-()e" /, 2e
c-*")+e(e+ " 1*)% +e')*e+ 1*+e( "ec%)-* 6 A2C #e(e-'4 %#e 2-1*+(,
-' 1*)% "#$$ )*c$1+e %#e -1%e( "1('ce" -' %#e 0e()/e%e( !$$" -'
")+ 21)$+)*."4 0$*%" -( 'c%-()e". T#e '-$$-!)*. (e *-% 0(% -' %#e
1*)%@ 2e()*. !$$"4 c-$1/*"4 '$--("4 (--'"4 '-1*+%)-*"4 *+ -%#e(
c-//-* "%(1c%1($ e$e/e*%" -' %#e 21)$+)*."> $-22)e"4 "%)(!,"4 #$$
!," *+ -%#e( (e" -' c-//-* 1"e4 e$e5%-( eI1)0/e*% *+
"#'%"4 ce*%($ #e%)*.4 ce*%($ (e'().e(%)-* *+ ce*%($ )(
c-*+)%)-*)*. eI1)0/e*%4 (e"e(5-)(4 %*&"4 01/0" *+ -%#e( ce*%($
"e(5)ce" *+ 'c)$)%)e"4 0)0e"4 +1c%"4 '$1e"4 c#1%e"4 c-*+1)%" !)(e"
*+ -%#e( 1%)$)%, )*"%$$%)-*"4 !#e(e5e( $-c%e+4 e;ce0% %#e -1%$e%"
%#e(e-' !#e* $-c%e+ !)%#)* %#e 1*)%.
2C T#e(e "#$$ 0"" !)%# %#e 1*)%4 " * 001(%e**% %#e(e-'4 *
e;c$1")5e c"e/e*% '-( %#e 1"e -' %#e )( "0ce e*c-/0""e" 2, %#e
2-1*+()e" -' %#e 1*)% " )% e;)"%" % *, 0(%)c1$( %)/e *+ " %#e
1*)% /, $!'1$$, 2e $%e(e+ -( (ec-*"%(1c%e+ '(-/ %)/e %- %)/e. S1c#
e"e/e*% "#$$ 2e 1%-/%)c$$, %e(/)*%e+ )* *, )( "0ce 10-*
+e"%(1c%)-* -' %#e 1*)%" " %- (e*+e( )% 1*%e**%2$e.
cC U*$e"" -%#e(!)"e 0(-5)+e+4 %#e c-//-* (e" (e #e$+ )* c-//-*
2, %#e #-$+e(" -' 1*)%"4 )* eI1$ "#(e -*e '-( ec# 1*)%.
+C A *-*<e;c$1")5e e"e/e*% '-( )*.(e""4 e.(e"" *+ "100-(% %#(-1.#
%#e c-//-* (e" )* 001(%e**% %- ec# 1*)% *+ %#e c-//-*
(e" (e "12Bec% %- "1c# e"e/e*%.
eC Ec# c-*+-/)*)1/ -!*e( "#$$ #5e %#e e;c$1")5e ().#% %- 0)*%4
(e0)*%4 %)$e4 !;4 00e( -( -%#e(!)"e (e')*)"# *+ +ec-(%e %#e )**e(
"1('ce" -' %#e !$$"4 ce)$)*."4 '$--("4 !)*+-!" *+ +--(" #-1*+)*.
#)" -!* 1*)%@ 0(-5)+e+4 %#% )* %#e c"e -' * )*+1"%()$ e"%%e
c-*+-/)*)1/ 1*)%4 "1c# ().#% /, 2e e;e(c)"e+ -5e( %#e e;%e(*$
"1('ce" -' %#e ")+ 1*)%.
'C Ec# c-*+-/)*)1/ -!*e( "#$$ #5e %#e e;c$1")5e ().#% %-
/-(%..e4 0$e+.e -( e*c1/2e( #)" c-*+-/)*)1/ *+ %- #5e %#e
"/e 00()"e+ )*+e0e*+e*%$, -' %#e -%#e( c-*+-/)*)1/ -!*e(.
.C Ec# c-*+-/)*)1/ -!*e( #" $"- %#e 2"-$1%e ().#% %- "e$$ -(
+)"0-"e -' #)" c-*+-/)*)1/ 1*$e"" %#e /"%e( +ee+ c-*%)*"
(eI1)(e/e*%" %#% %#e 0(-0e(%, 2e ')("% -''e(e+ %- %#e c-*+-/)*)1/
-!*e(" !)%#)* (e"-*2$e 0e()-+ -' %)/e 2e'-(e %#e "/e )" -''e(e+
%- -1%")+e 0(%)e">
3. JD < "hen partition is allowed
Sec% 3% W#e(e "e5e($ 0e("-*" -!* c-*+-/)*)1/ )* c-*+-/)*)1/
0(-Bec%4 * c%)-* /, 2e 2(-1.#% 2, -*e -( /-(e "1c# 0e("-* '-( 0(%)%)-*
%#e(e-'4 2, "$e -' %#e e*%)(e 0(-Bec%4 " )' %#e -!*e(" -' $$ %#e c-*+-/)*)1/
)* "1c# 0(-Bec% !e(e c-<-!*e(" -' %#e e*%)(e 0(-Bec% )* %#e "/e 0(-0-(%)-*
" %#e)( )*%e(e"%" )* %#e c-//-* (e"@ <rovided, however4 %#% 0(%)%)-*
"#$$ 2e /+e -*$, 10-* "#-!)*.@
C T#% %#(ee ,e(" '%e( +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% !#)c#
(e*+e(" /%e()$ 0(% %#e(e-' 1*')% '-( )%" 1"e 0()-( %#e(e%-4 %#e
0(-Bec% #+ *-% 2ee* (e21)$% -( (e0)(e+ "12"%*%)$$, %- )%" "%%e 0()-(
%- )%" +/.e -( +e"%(1c%)-*> -(
2C T#% +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% #" (e*+e(e+ -*e #$' -(
/-(e -' %#e 1*)%" %#e(e)* 1*%e**%2$e *+ %#% c-*+-/)*)1/
-!*e(" #-$+)*. )* ..(e.%e /-(e %#* 60 0e(ce*% )*%e(e"% )* %#e
c-//-* (e" (e -00-"e+ %- %#e (e0)( -( (e"%-(%)-* -' %#e
0(-Bec%"> -(
cC T#% 0(-Bec% #" 2ee* )* e;)"%e*ce )* e;ce"" -' E0 ,e("4 %#% )% )"
-2"-$e%e *+ 1*ec-*-/)c$4 *+ %#% c-*+-/)*)1/ -!*e(" #-$+)*.
)* ..(e.%e /-(e %#* E0 0e(ce*% )*%e(e"% )* %#e c-//-* (e" (e
-00-"e+ %- (e0)( -( (e"%-(%)-* -( (e/-+e$)*. -( /-+e(*)3)*. -' %#e
0(-Bec%> -(
+C T#% %#e 0(-Bec% -( /%e()$ 0(% %#e(e-' #" 2ee* c-*+e/*e+ -(
e;0(-0()%e+ *+ %#% %#e 0(-Bec% )" *- $-*.e( 5)2$e4 -( %#% %#e
c-*+-/)*)1/ -!*e(" #-$+)*. )* ..(e.%e /-(e %#* G0 0e(ce*%
)*%e(e"% )* %#e c-//-* (e" (e -00-"e+ %- %#e c-*%)*1%)-* -' %#e
c-*+-/)*)1/ (e.)/e '%e( e;0(-0()%)-* -( c-*+e/*%)-* -'
/%e()$ 0(-0-(%)-* %#e(e-'> -(
eC T#% %#e c-*+)%)-* '-( "1c# 0(%)%)-* 2, "$e "e% '-(%# )* %#e
+ec$(%)-* -' (e"%()c%)-*" +1$, (e.)"%e(e+ )* cc-(+*ce !)%# %#e
%e(/" -' %#)" Ac%4 #5e 2ee* /e%.
4. JE < *eclaration o# restrictions
Sec% /% T#e -!*e( -' 0(-Bec% "#$$4 0()-( %- %#e c-*5e,*ce -' *,
c-*+-/)*)1/ %#e(e)*4 (e.)"%e( +ec$(%)-* -( (e"%()c%)-*"4 (e$%)*. %- "1c#
0(-Bec%4 !#)c# (e"%()c%)-*" "#$$ e*"1(e %- 2)*+ $$ c-*+-/)*)1/ -!*e(" )*
%#e 0(-Bec%4 "1c# $)e*"4 1*$e"" -%#e(!)"e 0(-5)+e+4 /, 2e e*'-(ce+ 2, *,
c-*+-/)*)1/ -!*e( )* %#e 0(-Bec% -( 2, %#e /*.e/e*% 2-+, -' "1c#
0(-Bec%. T#e Re.)"%e( -' Dee+" "#$$ e*%e( *+ **-%%e %#e +ec$(%)-* -'
(e"%()c%)-*"4 10-* %#e Ce(%)')c%e -' T)%$e c-5e()*. %#e $*+ )*c$1+e+ !)%#)*
%#e 0(-0e(4 )' %#e $*+ )" 0%e*%e+ -( (e.)"%e(e+ 1*+e( %#e L*+ Re.)"%(%)-*
-( C+"%($ Ac%".
S1c# +ec$(%)-* -' (e"%()c%)-*"4 /-*. %#e -%#e( %#)*."4 /, $"-
0(-5)+e@
C A" %- /*.e/e*% 2-+,
1. F-( %#e 0-!e( %#e(e-'4 )*c$1+)*. 0-!e( %- e*'-(ce %#e 0(-5)")-*"
-' %#e +ec$(%)-*" -' (e"%()c%)-*">
2. F-( %#e /)*%e**ce -' )*"1(*ce 0-$)c)e" )*"1()*. c-*+-/)*)1/
-!*e(" .)*"% $-"" 2, %#e4 c"1$%,4 $)2)$)%,4 !-(&/e*K"
c-/0e*"%)-* *+ -%#e( )*"1(2$e ()"&" *+ '-( 2-*+)*. -' %#e
/e/2e(" -' *, /*.e/e*% 2-+,>
6. P(-5)")-*" '-( /)*%e**ce4 1%)$)%,4 .(+e*)*. *+ -%#e( "e(5)ce"
2e*e')%)*. %#e c-//-* (e" '-( %#e -0e(%)-*" -' %#e 21)$+)*.4
*+ $e.$4 cc-1*%)*. *+ -%#e( 0(-'e"")-*$ *+ %ec#*)c$
"e(5)ce">
D. F-( 01(c#"e -' /%e()$"4 "100$)e" *+ %#e $)&e *ee+e+ 2, %#e
c-//-* (e">
E. F-( 0,/e*% -' %;e" *+ "0ec)$ ""e""/e*% !#)c# !-1$+ 2e
$)e* 10-* %#e e*%)(e 0(-Bec% -( c-//-* (e"4 '-( +)"c#(.e -'
/, e*c1/2(*ce $e5)e+ .)*"% %#e e*%)(e 0(-Bec% -' %#e c-//-*
(e">
8. T#e /**e( '-( +e$e.%)-* -' )%" 0-!e(">
G. F-( (ec-*"%(1c%)-* -' *, 0-(%)-* -( 0-(%)-*" -' *, +/.e %-
-( +e"%(1c%)-* -' %#e 0(-Bec%>
7. F-( e*%(, 2, )%" -'')ce(" *+ .e*%" )*%- *, 1*)% !#e* *ece""(,
)* c-**ec%)-* !)%# %#e /)*%e**ce -( c-*"%(1c%)-* '-( !#)c#
"1c# 2-+, )" (e"0-*")2$e>
H. F-( 0-!e( -' %%-(*e, %- %#e /*.e/e*% 2-+, %- "e$$ %#e
e*%)(e 0(-Bec% '-( %#e 2e*e')% -' $$ -' %#e -!*e(" %#e(e-' !#e*
0(%)%)-* -' %#e 0(-Bec% /, 2e 1%#-()3e+ 1*+e( Sec%)-* 7 -' %#)"
Ac%4 !#)c# ")+ 0-!e( "#$$ 2e 2)*+)*. 10-* $$ -' %#e
c-*+-/)*)1/ -!*e(" (e.(+$e"" -( !#e%#e( %#e, ""1/e %#e
-2$).%)-*" -' %#e (e"%()c%)-*" -( *-%.
2C T#e /**e( *+ 0(-ce+1(e '-( /e*+)*. "1c# (e"%()c%)-*"4 0(-5)+e+4
%#% %#e 5-%e -' *-% $e"" %#* /B-()%, )* )*%e(e"% -' %#e -!*e(" )"
-2%)*e+>
cC F-( )*+e0e*+e*% 1+)% -' %#e cc-1*%" -' %#e /*.e/e*% 2-+,>
+C F-( (e"-*2$e ""e""/e*%" %- /ee% 1%#-()3e+ e;0e*+)%1(e"4 ec#
c-*+-/)*)1/ 1*)% %- 2e ""e""e+ "e0(%e$, '-( )%" "#(e -' "1c#
e;0e*"e" )* 0(-0-(%)-* A1*$e"" -%#e(!)"e 0(-5)+e+C %- )%" -!*e(K"
'(c%)-*$ )*%e(e"% )* *, c-//-* (e">
eC F-( %#e "12-(+)*%)-* -' %#e $)e*" "ec1()*. "1c# ""e""/e*%" %-
-%#e( $)e* e)%#e( .e*e($$, -( "0ec)')c$$, +e"c()2e+>
'C F-( c-*+)%)-*"4 -%#e( %#* %#-"e 0(-5)+e+ '-( )* Sec%)-*" 7 *+ 16 -'
%#)" Ac%4 10-* !#)c# 0(%)%)-* -' %#e 0(-Bec% *+ +)""-$1%)-* -' %#e
c-*+-/)*)1/ c-(0-(%)-* /, 2e /+e. S1c# ().#% %- 0(%)%)-* -(
+)""-$1%)-* /, 2e c-*+)%)-*e+ 10-* ')$1(e -' %#e c-*+-/)*)1/
-!*e(" %- (e21)$+ !)%#)* ce(%)* 0e()-+ -( 10-* "0ec)')e+
0e(ce*%.e -' +/.e %- %#e 21)$+)*.4 -( 10-* +ec)")-* -' *
(2)%(%)-*4 -( 10-* *, -%#e( (e"-*2$e c-*+)%)-*.
C. J11 < Condominium corporation
Sec% 0E% W#e*e5e( %#e c-//-* (e" )* c-*+-/)*)1/ 0(-Bec% (e
#e$+ 2, c-*+-/)*)1/ c-(0-(%)-*4 "1c# c-(0-(%)-* "#$$ c-*"%)%1%e %#e
/*.e/e*% 2-+, -' %#e 0(-Bec%. T#e c-(0-(%e 01(0-"e" -' "1c#
c-(0-(%)-* "#$$ 2e $)/)%e+ %- %#e #-$+)*. -' %#e c-//-* (e"> e)%#e( %#e
-!*e("#)0 -' *, -%#e( )*%e(e"% )* (e$ 0(-0e(%, (ec-.*)3e+ 2, %#e $!4 %- %#e
/*.e/e*% -' %#e 0(-Bec%4 *+ %- "1c# -%#e( 01(0-"e" " /,2e
*ece""(,4 )*c)+e*%$ -( c-*5e*)e*% %- %#e cc-/0$)"#/e*% -' ")+
01(0-"e". T#e (%)c$e" -' )*c-(0-(%)-* -( 2, $!" -' %#e c-(0-(%)-* "#$$
*-% c-*%)* *, 0(-5)")-* c-*%((, %- -( )*c-*")"%e*% !)%# %#e 0(-5)")-* -'
%#)" Ac%4 %#e e*2$)*. -( /"%e( +ee+4 -( %#e +ec$(%)-* -' (e"%()c%)-*" -' %#e
0(-Bec%4 /e/2e("#)0 )* c-*+-/)*)1/ c-(0-(%)-* (e.(+)*. -' !#e%#e( )%
)" "%-c& -( *-*<"%-c& c-(0-(%)-*4 "#$$ *-% 2e %(*"'e(2$e "e0(%e$, '(-/
%#e c-*+-/)*)1/ 1*)% -' !#)c# )% )" * 001(%e**ce. W#e* /e/2e( -(
"%-c&#-$+e( ce"e" %- -!* 1*)% )* %#e 0(-Bec% )* !#)c# %#e c-*+-/)*)1/
c-(0-(%)-* -!*" -( #-$+" %#e c-//-* (e4 #e "#$$ 1%-/%)c$$, ce"e %-
2e /e/2e( -( "%-c&#-$+e( -' %#e c-*+-/)*)1/ c-(0-(%)-*.
D. J1 < Mudicial dissolution o# condominium corporation
Sec. 16. U*%)$ %#e e*2$)*. -( %#e /"%e( +ee+ -' %#e 0(-Bec% )* !#)c#
%#e c-*+-/)*)1/ c-(0-(%)-* -!*" -( #-$+" %#e c-//-* (e" )" (e5-&e+
%#e c-(0-(%)-* "#$$ *-% 2e 5-$1*%()$, +)""-$5e+ %#(-1.# * c%)-* '-(
+)""-$1%)-* 1*+e( R1$e 10D -' %#e R1$e" -' C-1(% e;ce0% 10-* "#-!)*.@
C T#e %#(ee ,e(" '%e( +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% )* !#)c#
+/.e -( +e"%(1c%)-* (e*+e(" /%e()$" 0(% %#e(e-' 1*')% '-( )%"
1"e 0()-( %#e(e%-4 %#e 0(-Bec% #" *-% 2ee* (e21)$% -( (e0)(e+
"12"%*%)$$, %- )%" "%%e 0()-( %- )%" +/.e -( +e"%(1c%)-*> -(
2C T#e +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% #" (e*+e(e+ -*e #$' -(
/-(e -' %#e 1*)%" %#e(e)* 1*%e**%2$e *+ %#% /-(e %#* 60 0e(ce*%
-' %#e /e/2e( -' %#e c-(0-(%)-* e*%)%$e+ %- 5-%e4 )' "%-c&
c-(0-(%)-*4 (e -00-"e+ %- %#e (e0)( -( (ec-*"%(1c%)-* -' %#e
0(-Bec%> -(
cC T#% %#e 0(-Bec% #" 2ee* )* e;)"%e*ce e;ce"" -' E0 ,e("4 %#% )% )"
-2"-$e%e *+ 1*ec-*-/)c$ *+ %#% /-(e %#* E0 0e(ce*% -' %#e
/e/2e(" -' %#e c-(0-(%)-* )' *-*<"%-c& -( "%-c&#-$+e("
(e0(e"e*%)*. /-(e %#* E0 0e(ce*% -' %#e c0)%$ "%-c& e*%)%$e+ %-
5-%e4 )' "%-c& c-(0-(%)-*4 (e -00-"e+ %- %#e (e0)( -( (e"%-(%)-*
-( (e/-+e$)*. -( /-+e(*)3)*. -' %#e 0(-Bec%> -(
+C T#% 0(-Bec% -( /%e()$ 0(% %#e(e-' #" 2ee* c-*+e/*e+ -(
e;0(-0()%e+ *+ %#% %#e 0(-Bec% )" *- $-*.e( 5)2$e -( %#% %#e
/e/2e(" #-$+)*. )* ..(e.%e /-(e %#* G0 0e(ce*% )*%e(e"% )* %#e
c-(0-(%)-* )' *-*<"%-c&4 -( %#e "%-c&#-$+e(" (e0(e"e*%)*. /-(e %#*
G0 0e(ce*% -' %#e c0)%$ "%-c& e*%)%$e+ %- 5-%e4 )' "%-c& c-(0-(%)-*4
(e -00-"e+ %- %#e c-*%)*1%)-* -' %#e c-*+-/)*)1/ (e.)/e '%e(
e;0(-0()%)-* -( c-*+e/*%)-* -' /%e()$ 0-(%)-* %#e(e-'> -(
eC T#% %#e c-*+)%)-*" '-( "1c# +)""-$1%)-* "e% '-(%# )* %#e +ec$(%)-*
-' (e"%()c%)-*" -' %#e 0(-Bec% )* !#)c# %#e c-(0-(%)-* -!*" -( #-$+"
%#e c-//-* (e"4 #5e 2ee* /e%.
E. J1$ < Voluntary dissolution o# condominium corporation :amended;
Sec% 0C% T#e c-*+-/)*)1/ c-(0-(%)-* /, $"- 2e +)""-$5e+ 2,
%#e '')(/%)5e 5-%e -' $$ %#e "%-c&#-$+e(" -( /e/2e(" %#e(e-' % .e*e($
-( "0ec)$ /ee%)*. +1$, c$$e+ '-( "1c# 01(0-"e@ <rovided, T#% $$ %#e
(eI1)(e/e*%" -' Sec%)-* 82 -' %#e C-(0-(%)-* L! (e c-/0$)e+ !)%#.
11. J14 < *isposition o# common areas
Sec% 0-% A c-*+-/)*)1/ c-(0-(%)-* "#$$ *-%4 +1()*. )%" e;)"%e*ce4
"e$$4 e;c#*.e4 $e"e -( -%#e(!)"e +)"0-"e -' %#e c-//-* (e" -!*e+ -(
#e$+ 2, )% )* %#e c-*+-/)*)1/ 0(-Bec% 1*$e"" 1%#-()3e+ 2, %#e '')(/%)5e
5-%e -' ")/0$e /B-()%, -' %#e (e.)"%e(e+ -!*e("@ <rovided, T#% 0()-(
*-%)')c%)-* %- $$ (e.)"%e(e+ -!*e(" (e +-*e> *+ <rovided frther, T#% %#e
c-*+-/)*)1/ c-(0-(%)-* /, e;0*+ -( )*%e.(%e %#e 0(-Bec% !)%# *-%#e(
10-* %#e '')(/%)5e 5-%e -' ")/0$e /B-()%, -' %#e (e.)"%e(e+ -!*e("4
"12Bec% -*$, %- %#e ')*$ 00(-5$ -' %#e H-1")*. L*+ U"e Re.1$%-(,
B-(+. +As amended !y R% A% ,o% D3//4
Art. 491. 2one 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. 8owever% if the withholding of the
consent b" one or more of the co/owners is clearl" prejudicial to the
common interest% the courts ma" afford ade.uate relief.
7n order to ma+e alterations, the consent o# all co2owners is needed.
&n alteration is an act o# strict ownership :i.e. any act o# encumbrance; or one
which involves a change in the use o# the thing :i.e. bought Tamara' FT to
carpool and then decide to rent it out;.
>owever, i# the withholding o# the consent by 1 or more o# the creditors is
clearly pre)udicial to the common interest, the court may intervene and a##ord
ade-uate relie#.
Art. 492. @or the administration and better enjo"ment of the thing
owned in common% the resolutions of the majorit" of the co/owners shall
be binding.
There shall be no majorit" unless the resolution is approved b" the
co/owners who represent the controlling interest in the object of the co/
ownership.
?hould there be no majorit"% or should the resolution of the
majorit" be seriousl" prejudicial to those interested in the propert"
owned in common% the court% at the instance of an interested part"% shall
order such measures as it ma" deem proper% including the appointment of
an administrator.
0henever a part of the thing belongs e-clusivel" to one of the co/
owners% and the remainder is owned in common% the preceding provision
shall appl" onl" to the part owned in common.
&cts o# administration need a ma)ority. Ba)ority is computed not by counting
heads but by ma)ority o# the controlling interest in the co2ownership.
&n e'ample o# an act o# administration is replacing the tires o# a car owned in
common with another brand o# tires.
Art. 493. 9ach co/owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto% and he ma" therefore
alienate% assign or mortgage it% and even substitute another person in its
enjo"ment% e-cept when personal rights are involved. Gut the effect of
the alienation or the mortgage% with respect to the co/owners% shall be
limited to the portion which ma" be allotted to him in the division upon
the termination of the co/ownership.
&rticle $E is the rule regarding #ractional interest.
The partner provision o# &rticle $E is &rticle $D4
.
&rticle $E provides that each co2owner shall have the #ull ownership o# his
part and o# the #ruits and bene#its pertaining thereto, and he may there#ore
alienate, assign or mortgage it, and even substitute another person in its
en)oyment, e'cept when personal rights are involved. =ut the e##ect o# the
alienation or the mortgage, with respect to the co2owners, shall be limited to
the portion which may be allotted to him in the division upon the termination
o# the co2ownership.
&rticle $D4 provides that each co2owner may use the thing owned in common,
provided he does so in accordance with the purpose #or which it is intended
and in such a way as not to in)ure the interest o# the co2ownership or prevent
the other co2owners #rom using it according to their rights.
& co2owner may lease his #ractional or ideal share.
_
&rt. $D4. /ach co2owner may use the thing owned in common, provided he does so in
accordance with the purpose #or which it is intended and in such a way as not to in)ure the
interest o# the co2ownership or prevent the other co2owners #rom using it according to their
rights. The purpose o# the co2ownership may be changed by agreement, e'press or implied.
& co2owner may not dispose o# the entire property owned in common. 7# he
does so, the transaction is valid in so #ar as his ideal share is concern.
Art. 494. 2o co/owner shall be obliged to remain in the co/
ownership. 9ach co/owner ma" demand at an" time the partition of the
thing owned in common% insofar as his share is concerned.
2evertheless% an agreement to keep the thing undivided for a
certain period of time% not e-ceeding ten "ears% shall be valid. This term
ma" be e-tended b" a new agreement.
A donor or testator ma" prohibit partition for a period which shall
not e-ceed twent" "ears.
2either shall there be an" partition when it is prohibited b" law.
2o prescription shall run in favor of a co/owner or co/heir against
his co/owners or co/heirs so long as he e-pressl" or impliedl" recogni$es
the co/ownership.
"ays o# Terminating a Co20wnership
1. Aartition
Aartition converts into certain and de#inite parts the respective share o#
the undivided shares o# the co2owners.
General *ule+ Aartition is demandable by any o# the co2owners as a
matter o# right at any time. 7# the other co2owners do not consent,
then go to court.
Exceptions:
a. "hen there is an agreement to +eep the thing undivided
The ma'imum period #or such an agreement is 11 years.
The agreement can be e'tended. .uch an e'tension must not
go beyond 11 years. There is no limit as to the number o#
e'tensions.
"hat i# the co2owners agree to e'tend #or more than 11 years,
is the agreement totally void or it is good #or only 11 years( The
less radical view would say that it is valid #or only 11 years.
Aartition may either be by agreement o# the parties or by )udicial
proceedings :&rticle $E4
;.
b. "hen prohibited by the donor or testator
The prohibition by the donor or testator cannot e'ceed 21 years.
"hat i# donor states that the prohibition is #or 1 years, is the
prohibition totally void or it is good #or only 21 years( The less
radical view would say that it is valid #or only 21 years.
/ven though the testator or donor prohibits partition, the co2
ownership shall terminate when9
i. &ny o# the causes #or which partnership is dissolved ta+es
place% or
_
Art. *2&. Aartition may be made by agreement between the parties or by )udicial
proceedings. Aartition shall be governed by the ,ules o# Court inso#ar as they are consistent
with this Code.
ii. The court #inds compelling reasons that
division should be ordered upon petition o# one o# the co2
heirs
c. "hen prohibited by law
Exception to t"e exception: "hen compelling reasons it must
be partitioned :i.e. &rticle 13E
, Family Code;
d. "hen partition renders the thing unserviceable
&rticle $ED
governs in this case.

!nder &rticle $ED, when the thing is essentially indivisible and
the co2owners cannot agree that it be allotted to one o# them
who shall indemni#y the others, it shall be sold and the its
proceeds be distributed.
"hat is allowed only is a constructive and not a physical
partition :i.e. in a partition o# a house;.
e. "hen the legal nature o# the thing does not allow partition :i.e.
party wall;
2. Consolidation
. *estruction or loss
$. Arescription
General *ule+ Arescription will not run i# the ob)ect is in
possession o# anyone o# the co2owners since such possession is not
adverse.
Exception: Co2owner may repudiate the co2ownership and the
prescriptive period will start to run.
&nything that terminates a co2ownership is similar to a partition.
7n 7uason vs. 7uason the co2owners o# a huge parcel o# land agreed to
improve the property by #illing it and constructing roads thereon and then sub2
dividing it into small lots #or sale. .ubse-uently, one o# the co2owners as+ed
the court #or partition alleging that &rticle $E$ was violated. The .C said that
the contract #ar #rom violating the legal provision that #orbids a co2owner #rom
being obliged to remain a party to the community precisely has #or its purpose
and ob)ect the dissolution o# the co2ownership and o# the community by selling
the parcel held in common and dividing the proceeds o# the sale among the co2
owners. The obligation imposed in the contract to preserve the co2ownership
until all the lots shall have been sold, is a mere incident to the main ob)ect o#
dissolving the co2ownership. =y virtue o# the document, the parties thereto
practically and substantially entered into a contract o# partnership as the best
and most e'pedient means o# eventually dissolving the co2ownership, and the
li#e o# said partnership to end when the ob)ect o# its creation shall have been
attained.
_
Art. )$2. The #amily home shall continue despite the death o# one or both spouses or o# the
unmarried head o# the #amily #or a period o# ten years or #or as long as there is a minor
bene#iciary, and the heirs cannot partition the same unless the court #inds compelling reasons
there#or. This rule shall apply regardless o# whoever owns the property or constituted the #amily
home.
&rt. $ED. "henever the thing is essentially indivisible and the co2owners cannot agree
that it be allotted to one o# them who shall indemni#y the others, it shall be sold and its
proceeds distributed.
,,,. Possession
2 Iinds o# Aossession
A. &ossession in t"e concept o. an o;ner :en concepto de dueno)
Aossession in the concept o# an owner *0/. N0T re#er to the
possessors inner belie# or disposition regarding the property in his
possession.
Aossession in the concept o# an owner re#ers to his overt acts which
tend to induce the belie# on the part o# others that he is the owner.
Aossession in the concept o# an owner is ius possidendi.
Aossession in the concept o# an owner by its nature is provisional. 7t
usually ends up as ownership.
Conse-uences o# Aossession in the Concept o# an 0wner
1. Aossession is converted into ownership a#ter the re-uired lapse o#
time :&rticle 3$1;
Art. 540. #nl" the possession ac.uired and enjo"ed in
the concept of owner can serve as a title for ac.uiring
dominion.
2. Aresumption o# )ust title :&rticle 3$1;
Art. 541. A possessor in the concept of owner has in
his favor the legal presumption that he possesses with a just
title and he cannot be obliged to show or prove it.
,elevance o# the 7nner *isposition o# the Aossessor in the Concept o# an
0wner :5ood Faith, =ad Faith;
1. Good @aith
a. Re>uisites o. Goo+ )ait"
i. 0stensible title or mode o# ac-uisition
7# its not an ostensible title but a real title, then its
ownership.
ii. Vice or de#ect in the title
7# there was no vice or de#ect in the title, then its
ownership.
/'amples o# vice or de#ect in title
1. 5rantor was not the owner
2. ,e-uirements #or transmission were not complied
with
. Bista+e in the identity o# the person
$. Aroperty was not really res nullius
iii. Aossessor is ignorant o# the vice or de#ect and must have an
honest belie# that the thing belongs to him
0therwise, its bad #aith.
b. E..ects o. Goo+ )ait"
i. As to t#e !ruits
1. Fruits already received :&rticle 3$$, ?1;
Art. 544$ %1. A possessor in good faith is
entitled to the fruits received before the possession
is legall" interrupted.
/ntitled to all the #ruits until possession is legally
interrupted :i.e. be#ore summons;
2. Fruits still pending :&rticle 3$3;
Art. 545. ,f at the time the good faith
ceases% there should be an" natural or industrial
fruits% the possessor shall have a right to a part of
the e-penses of cultivation% and to a part of the net
harvest% both in proportion to the time of the
possession.
The charges shall be divided on the same
basis b" the two possessors.
The owner of the thing ma"% should he so
desire% give the possessor in good faith the right to
finish the cultivation and gathering of the growing
fruits% as an indemnit" for his part of the e-penses
of cultivation and the net proceeds3 the possessor
in good faith who for an" reason whatever should
refuse to accept this concession% shall lose the right
to be indemnified in an" other manner.
/ntitled to pro2rate the #ruits already growing when
his possession is legally interrupted
For e'ample, possessor planted crops. 7t ta+es the
crops $ months to grow. 0n the beginning o# the $
th
month, summons is served. &t the end o# the $
th
month, the crops are harvested. !nder &rticle 3$3,
the possessor is entitled to [ o# the crops since the
possessor was in possession #or months. >owever,
he also pays [ o# the e'penses.
ii. As to necessar8 expenses :&rticle 3$4, ?1;
Art. 546$ %1. 2ecessar" e-penses shall be
refunded to ever" possessor3 but onl" the possessor in
good faith ma" retain the thing until he has been
reimbursed therefor.
The possessor in good #aith is entitled to a re#und o#
necessary e'penses.
The possessor in good #aith may retain the thing until he
is reimbursed #or necessary e'penses.
iii. As to use!ul expenses :&rticles 3$4, ?2, 3$C;
Art. 546$ %2. >seful e-penses shall be refunded
onl" to the possessor in good faith with the same right
of retention% the person who has defeated him in the
possession having the option of refunding the amount
of the e-penses or of pa"ing the increase in value
which the thing ma" have ac.uired b" reason thereof.
Art. 547. ,f the useful improvements can be
removed without damage to the principal thing% the
possessor in good faith ma" remove them% unless the
person who recovers the possession e-ercises the
option under paragraph 4 of the preceding article.
use#ul e'penses.
The possessor in good #aith may retain the thing until he
is reimbursed #or use#ul e'penses.
The other party has the option to
1. ,e#und the amount o# e'penses% or
2. Aay the increase in value which the thing may have
ac-uired
7# the use#ul improvements can be removed without
damaging the principal thing, the possessor in good #aith
may remove them unless the other party wants to +eep
the use#ul improvements. 7n which case, the other party
has to e'ercise the two previous options.
iv. As to ornamental expenses :&rticle 3$D;
Art. 548. 9-penses for pure lu-ur" or mere
pleasure shall not be refunded to the possessor in
good faith3 but he ma" remove the ornaments with
which he has embellished the principal thing if it
suffers no injur" thereb"% and if his successor in the
possession does not prefer to refund the amount
e-pended.
The possessor in good #aith is not entitled to a re#und #or
ornamental e'penses.
=ut he may remove the ornamental improvements i# they
do not cause damage to the principal thing.
v. As to prescription :&rticles 112, 11$;
Art. 1132. The ownership of movables
prescribes through uninterrupted possession for four
"ears in good faith.
The ownership of personal propert" also
prescribes through uninterrupted possession for eight
"ears% without need of an" other condition.
0ith regard to the right of the owner to recover
personal propert" lost or of which he has been illegall"
deprived% as well as with respect to movables ac.uired
in a public sale% fair% or market% or from a merchant:s
store the provisions of articles ))D and ')E) of this
Code shall be observed.
Art. 1134. #wnership and other real rights over
immovable propert" are ac.uired b" ordinar"
prescription through possession of ten "ears.
Arescriptive Aeriod9
1. Bovables < $ years
2. 7mmovables < 11 years
vi. As to lia5ilit8 !or deterioration or loss :&rticle 332, ?1;
Art. 552. A possessor in good faith shall not be
liable for the deterioration or loss of the thing
possessed% e-cept in cases in which it is proved that
he has acted with fraudulent intent or negligence%
after the judicial summons.
The possessor in good #aith is not liable since he thought
that he was the owner.
0nce the good #aith ceases :i.e. summons served;, then
the possessor is liable i# there was #raudulent intent or
negligence.
2. Gad @aith
E..ects o. =a+ )ait"
i. As to t#e !ruits :&rticle 3$E;
Art. 549. The possessor in bad faith shall
reimburse the fruits received and those which the
legitimate possessor could have received% and shall
have a right onl" to the e-penses mentioned in
paragraph ' of article )<A and in article <<7. The
e-penses incurred in improvements for pure lu-ur" or
mere pleasure shall not be refunded to the possessor
in bad faith% but he ma" remove the objects for which
such e-penses have been incurred% provided that the
thing suffers no injur" thereb"% and that the lawful
possessor does not prefer to retain them b" pa"ing the
value the" ma" have at the time he enters into
possession.
The possessor in bad #aith shall reimburse the #ruits
receive and those which the legitimate possessor could
have received
The possessor in bad #aith has a right o# reimbursement
#or necessary e'penses #or the production, gathering and
preservation o# the #ruits.
ii. As to t#e necessar8 expenses
necessary e'penses.
The possessor in good #aith has no right to retain the
thing until he is reimbursed #or necessary e'penses.
iii. As to use!ul expenses
The possessor in bad #aith is not entitled to a re#und o#
use#ul e'penses.
iv. As to ornamental expenses
The possessor in bad #aith is not entitled to a re#und o#
ornamental e'penses
The possessor in bad #aith is entitled to remove the
ornamental improves only i#9
i. ,emoval can be accomplished without damaging the
principal thing and
ii. The law#ul possessor does not pre#er to retain the
ornamental improvements by paying the value
thereo# at the time he enters into possession
v. As to prescription :&rticles 112, 11C;
Art. 1137. #wnership and other real rights over
immovables also prescribe through uninterrupted
adverse possession thereof for thirt" "ears% without
need of title or of good faith.
Arescriptive Aeriod
1. Bovables < D years
2. 7mmovables < 1 years
vi. As to lia5ilit8 !or deterioration or loss :&rticle 332, ?2;
Article 552$ %2. A possessor in bad faith shall be
liable for deterioration or loss in ever" case% even if
caused b" a fortuitous event.
The possessor in bad #aith becomes an insurer o# the
property. >e is liable even i# the thing is destroyed, loss
or deteriorates due to a #ortuitous event
Aresumptions &pplicable
1. 1ust Title :&rticle 3$1;
Art. 541. A possessor in the concept of owner has in
his favor the legal presumption that he possesses with a just
title and he cannot be obliged to show or prove it.
& possessor in the concept o# owner has in his #avor the legal
presumption that he possess )ust title and he cannot be obliged
to show or prove it.
2. Good @aith :&rticles 32C, 33E;
Art. 527. Good faith is alwa"s presumed% and upon
him who alleges bad faith on the part of a possessor rests
the burden of proof.
Art. 559. The possession of movable propert" ac.uired
in good faith is e.uivalent to a title. 2evertheless% one who
has lost an" movable or has been unlawfull" deprived
thereof ma" recover it from the person in possession of the
same.
,f the possessor of a movable lost or which the owner
has been unlawfull" deprived% has ac.uired it in good faith at
a public sale% the owner cannot obtain its return without
reimbursing the price paid therefor.
5ood #aith is always presumed, and upon him who alleges bad
#aith on the part o# a possessor rests the burden o# proo#.
The possession o# movables ac-uired in good #aith is e-uivalent
to title.
/-uivalent to title means presumptive title su##icient to serve
as a basis #or prescription.
General *ule+ & person who lost or has been unlaw#ully
deprived o# the movable, may recover it #rom the person who
has possession o# the movable.
!nlaw#ul deprivation e'tends to all instances where there is
no valid transmission :i.e. the#t, robbery, etc.;
Exceptions:
a. 7# the possessor obtained the movable in good #aith at a
public sale, the owner cannot get it bac+ unless he
reimburses the possessor.
b. 7# the owner is estopped :&rticle 1313,?1;
Art. 1505. ?ubject to the provisions of this Title%
where goods are sold b" a person who is not the
owner thereof% and who does not sell them under
authorit" or with the consent of the owner% the bu"er
ac.uires no better title to the goods than the seller
had% unless the owner of the goods is b" his conduct
precluded from den"ing the seller:s authorit" to sell.
c. 7# the disposition is made under any #actors act :&rticle
1313, ?2;
Art. 1505$ %2. 2othing in this Title% however%
shall affect+
5'6 The provisions of an" factors: act% recording
laws% or an" other provision of law enabling
the apparent owner of goods to dispose of
them as if he were the true owner thereof3
This is no longer applicable under the present law since
we now have the 8aw on &gency.
d. Court order
e. 7# purchased ay a merchants store :&rticle 1313:;;
576 Purchases made in a merchant:s store% or in
fairs% or markets% in accordance with the Code
of Commerce and special laws.
&n e'ample o# a merchants store would be .B or
,ustans. "ithout this e'ception, commercial
transactions would be destabili6ed.
&rticle 1313, ? states in accordance with the Code o#
Commerce and special laws. &rticles D3 and D4 was
repealed. 7s &rticle 1313, ? still applicable( Aro#essor
=alane doesnt +now.
#. 7# title is lost by prescription :&rticle 112;
g. 7# the possessor is the holder in due course o# a negotiable
instrument o# title :&rticle 131D;
Art. 1518. The validit" of the negotiation of a
negotiable document of title is not impaired b" the fact
that the negotiation was a breach of dut" on the part
of the person making the negotiation% or b" the fact
that the owner of the document was deprived of the
possession of the same b" loss% theft% fraud% accident%
mistake% duress% or conversion% if the person to whom
the document was negotiated or a person to whom the
document was subse.uentl" negotiated paid value
therefor in good faith without notice of the breach of
dut"% or loss% theft% fraud% accident% mistake% duress or
conversion.
. Continuit" of Good @aith :&rticles 32D, 32E;
Art. 528. Possession ac.uired in good faith does not
lose this character e-cept in the case and from the moment
facts e-ist which show that the possessor is not unaware
that he possesses the thing improperl" or wrongfull".
Art. 529. ,t is presumed that possession continues to
be enjo"ed in the same character in which it was ac.uired%
until the contrar" is proved.
Aossession ac-uired in good #aith does not lose this character
e'cept in the case and #rom the moment #acts e'ist which show
that the possessor is not unaware that he possesses the thing
improperly or wrong#ully.
7t is presumed that possession continues to be en)oyed on the
same character in which it was ac-uired, until the contrary is
proved.
$. 2on/,nterruption :&rticles 33$, 341;
Art. 554. A present possessor who shows his
possession at some previous time% is presumed to have held
possession also during the intermediate period% in the
absence of proof to the contrar".
Art. 561. #ne who recovers% according to law%
possession unjustl" lost% shall be deemed for all purposes
which ma" redound to his benefit% to have enjo"ed it without
interruption.
& present possessor who shows his possession at some previous
time, is presumed to have held possession also during the
intermediate period, in the absence o# proo# to the contrary.
0ne who recovers, according to law, possession un)ustly lost,
shall be deemed #or all purposes which may redound to his
bene#it, to have en)oyed it without interruption.
3. 9-tension to the ;ovables 0ithin or ,nside :&rticles 3$2, $24;
Art. 542. The possession of real propert" presumes that
of the movables therein% so long as it is not shown or proved
that the" should be e-cluded.
Art. 426. 0henever b" provision of the law% or an
individual declaration% the e-pression Iimmovable things or
propert"%I or Imovable things or propert"%I is used% it shall
be deemed to include% respectivel"% the things enumerated in
Chapter ' and Chapter 4.
0henever the word Imuebles%I or Ifurniture%I is used
alone% it shall not be deemed to include mone"% credits%
commercial securities% stocks and bonds% jewelr"% scientific
or artistic collections% books% medals% arms% clothing% horses
or carriages and their accessories% grains% li.uids and
merchandise% or other things which do not have as their
principal object the furnishing or ornamenting of a building%
e-cept where from the conte-t of the law% or the individual
declaration% the contrar" clearl" appears.
The possession o# real property presumes that o# the movables
therein, so long as it is not shown or proved that they should be
e'cluded.
G. &ossession in t"e concept o. a "ol+er :en concepto de tenedor;
The possessor in the concept o# a holder carries with it no assertion
o# ownership. There are no overt acts which would induce a belie#
on the part o# others that he is the owner.
The possessor in the concept o# a holder ac+nowledges a superior
right in another person which the possessor admits is ownership.
Aossession in the concept o# a holder is ius possessionis. This is
right to possess is an independent right :i.e. lessee, trustee, agent,
antichretic creditor, pledgee, co2owner with respect to the entire
thing, etc.;
Aossession in the concept o# a holder will never become ownership.
Presumptions Applicable
1. 2on/,nterruption :&rticles 33$, 341;
Art. 554. A present possessor who shows his
possession at some previous time% is presumed to have
held possession also during the intermediate period% in
the absence of proof to the contrar".
Art. 561. #ne who recovers% according to law%
possession unjustl" lost% shall be deemed for all purposes
which ma" redound to his benefit% to have enjo"ed it
without interruption.
& present possessor who shows his possession at some
previous time, is presumed to have held possession also
during the intermediate period, in the absence o# proo# to the
contrary.
0ne who recovers, according to law, possession un)ustly lost,
shall be deemed #or all purposes which may redound to his
bene#it, to have en)oyed it without interruption.
2. 9-tension to ;ovables 0ithin or ,nside :&rticles 332, $24;
Art. 552. A possessor in good faith shall not be
liable for the deterioration or loss of the thing possessed%
e-cept in cases in which it is proved that he has acted
with fraudulent intent or negligence% after the judicial
summons.
A possessor in bad faith shall be liable for
deterioration or loss in ever" case% even if caused b" a
fortuitous event.
Art. 426. 0henever b" provision of the law% or an
individual declaration% the e-pression Iimmovable things
or propert"%I or Imovable things or propert"%I is used% it
shall be deemed to include% respectivel"% the things
enumerated in Chapter ' and Chapter 4.
0henever the word Imuebles%I or Ifurniture%I is
used alone% it shall not be deemed to include mone"%
credits% commercial securities% stocks and bonds% jewelr"%
scientific or artistic collections% books% medals% arms%
clothing% horses or carriages and their accessories%
grains% li.uids and merchandise% or other things which do
not have as their principal object the furnishing or
ornamenting of a building% e-cept where from the conte-t
of the law% or the individual declaration% the contrar"
clearl" appears.
The possession o# real property presumes that o# the
movables therein, so long as it is not shown or proved that
they should be e'cluded.
7n both possession in the concept o# an owner and possession in the concept o#
a holder, both are protected by &rticle 3E
.
&c-uisition and 8oss o# Aossession
A. Ac>uisition
3o4 is it Ac=uired: Aossession is ac-uired by the material occupation
o# a thing or the e'ercise o# a right, or by the #act that it is sub)ect to
the action o# our will, or by the proper acts and legal #ormalities
established #or ac-uiring such right :&rticle 31;
Art. 531. Possession is ac.uired b" the material
occupation of a thing or the e-ercise of a right% or b" the fact
that it is subject to the action of our will% or b" the proper acts
and legal formalities established for ac.uiring such right.
Ac=uired 58 I#om: Aossession may be ac-uired by the same person
who is to en)oy it, by his legal representative, by his agent, or by any
person without any power whatever but in the last case, the possession
shall not be considered as ac-uired until the person in whose name the
act o# possession was e'ecuted has rati#ied the same, without pre)udice
to the )uridical conse-uences o# negotiorum gestio in a proper case
:&rt. 32;.
Art. 532. Possession ma" be ac.uired b" the same
person who is to enjo" it% b" his legal representative% b" his
agent% or b" an" person without an" power whatever+ but in the
last case% the possession shall not be considered as ac.uired
until the person in whose name the act of possession was
`
Art. $(2. /very possessor has a right to be respected in his possession% and should he be
disturbed therein he shall be protected in or restored to said possession by the means
established by the laws and the ,ules o# Court.
& possessor deprived o# his possession through #orcible entry may within ten days #rom
the #iling o# the complaint present a motion to secure #rom the competent court, in the action
#or #orcible entry, a writ o# preliminary mandatory in)unction to restore him in his possession.
The court shall decide the motion within thirty :1; days #rom the #iling thereo#.
e-ecuted has ratified the same% without prejudice to the
juridical conse.uences of negotiorum gestio in a proper case.
G. :oss
Aossession may be lost
1. G" abandonment :&rticle 333 :1;;
&bandonment may either be9
a. &eranent
There is no need #or the prescriptive period to run.
b. 7eporar!
Arescription will run.
.ee &rticle 1123
Art. 1125. An" e-press or tacit recognition which the
possessor ma" make of the owner:s right also interrupts
possession.
2. G" assignment made to another either b" onerous or
gratuitous title :&rticle 333 :2;;
*isposition
. G" destruction or total loss of the thing% or it goes out of
commerce :&rticle 333 :;;
.ee &rticle 11DE :1;, :2;
Art. 1189. 0hen the conditions have been imposed
with the intention of suspending the efficac" of an
obligation to give% the following rules shall be observed in
case of the improvement% loss or deterioration of the
thing during the pendenc" of the condition+
5'6 ,f the thing is lost without the fault of the debtor%
the obligation shall be e-tinguished3
546 ,f the thing is lost through the fault of the debtor%
he shall be obliged to pa" damages3 it is
understood that the thing is lost when it perishes%
or goes out of commerce% or disappears in such a
wa" that its e-istence is unknown or it cannot be
recovered3
$. G" possession of another subject to the provisions of Art.
)7B% if the new possession has lasted longer than ' "ear.
Gut the real right of possession is not lost till after the lapse
of 'E "ears :&rticle 333 :$;;
The complaint #or #orcible entry must be #iled within 1 year #rom
the #orcible entry.
Accion pu5liciana must be #iled a#ter the lapse o# 1 year #rom the
#orcible entry but be#ore the lapse o# 11 years.
7n this case, possession is not really lost until the end o# the 11
th
year.
3. G" accion rein(in+icatoria
Art. 1120. Possession is interrupted for the purposes
of prescription% naturall" or civill".
Art. 1121. Possession is naturall" interrupted when
through an" cause it should cease for more than one "ear.
The old possession is not revived if a new possession
should be e-ercised b" the same adverse claimant.
Art. 1122. ,f the natural interruption is for onl" one
"ear or less% the time elapsed shall be counted in favor of the
prescription.
Art. 1123. Civil interruption is produced b" judicial
summons to the possessor.
Art. 1124. 1udicial summons shall be deemed not to
have been issued and shall not give rise to interruption+
5'6 ,f it should be void for lack of legal solemnities3
546 ,f the plaintiff should desist from the complaint or
should allow the proceedings to lapse3
576 ,f the possessor should be absolved from the
complaint.
,n all these cases% the period of the interruption shall
be counted for the prescription.
4. G" eminent domain
,=. >sufruct
!su#ruct is a real right temporary in nature which authori6es the holder to en)oy
all the bene#its which result #rom the normal en)oyment and e'ploitation o#
anothers property with the obligation to return at the designated time either the
same thing or in special cases its e-uivalent.
A. 3 Eleents in a 8su.ruct
1. 9ssential
The essential element o# a usu#ruct is that it is a real but temporary
right to en)oy someone elses property.
2. 2atural
The natural element o# a usu#ruct is the obligation to preserve the #orm
and substance the property o# another.
7n e'traordinary cases +nown as irregular or imper#ect or abnormal
usu#ruct, this natural element is not present. The usu#ructuary does
not have to return the same property.
Iinds o# 7mper#ect !su#ruct
a. Article 573
Art. 573. 0henever the usufruct includes things
which% without being consumed% graduall" deteriorate
through wear and tear% the usufructuar" shall have the right
Professor Ruben F. Balane Pa)e *-4 of +,-
to make use thereof in accordance with the purpose for
which the" are intended% and shall not be obliged to return
them at the termination of the usufruct e-cept in their
condition at that time3 but he shall be obliged to indemnif"
the owner for an" deterioration the" ma" have suffered b"
reason of his fraud or negligence.
!su#ruct includes things which gradually deteriorate through
wear and tear
!su#ructuary shall have the right to ma+e use.
The usu#ructuary shall not be obliged to return the property in
its original condition.
The usu#ructuary shall indemni#y the property owner #or the
deterioration in case he is guilty o# #raud or negligence.
b. Article 574
Art. 574. 0henever the usufruct includes things which
cannot be used without being consumed% the usufructuar"
shall have the right to make use of them under the obligation
of pa"ing their appraised value at the termination of the
usufruct% if the" were appraised when delivered. ,n case the"
were not appraised% he shall have the right to return at the
same .uantit" and .ualit"% or pa" their current price at the
time the usufruct ceases.
!su#ruct includes things which cannot be used without being
consumed
This is a usu#ruct in name only. 7t is really a mutuum :loan;.
!su#ructuary shall have the right to ma+e use.
7# the property was appraised, the usu#ructuary shall pay its
appraised value.
7# the property was not appraised, the usu#ructuary may either
i. ,eturn the same -uantity and -uality% or
ii. Aay their current price at the time the usu#ruct ceases
Professor Ruben F. Balane Pa)e *-* of +,-
c. Article 591$ %4
Article 591$ %4. ?hould the usufruct be on sterile
animals% it shall be considered% with respect to its effects% as
though constituted on fungible things.
.hould the usu#ruct be on sterile animals, it shall be considered
as though it was constituted on #ungible things.
. Accidental
The accidental elements are those which are the sub)ect o#
stipulation :i.e. how long will the usu#ruct last;.
G. 8su.ruct Distin/uis"e+ .ro :ease
GA?,? >?>@*>CT !9A?9
Extent Covers all #ruits and uses as a
rule
5enerally covers only a
particular or speci#ic use
,ature o! t#e rig#t 7s always a real right 7s a real right only i#, as in the
case o# a lease over real
property, the lease is registered
or is #or more than one year,
otherwise, it is only a personal
right
;reator o! t#e rig#t Can be created only by the
owner or by a duly authori6ed
agent, acting in behal# o# the
owner
The lessor may or may not be
the owner:as when there is a
sub2lease or when the lessor is
only a usu#ructuary;
.rigin Bay be created by law,
contract, last will or prescription
Bay be created as a rule only by
contract, and by way o#
e'ception, by law: as in the
case o# an implied new lease or
when a builder has built in 5F
on the land o# another a
building, when the land is
considerably worth more in
value than the building;
;ause The owner is more or less
passive, and allows the
usu#ructuary to en)oy the thing
given in usu#ruct Ode)a go6arP
0wner or lessor is more or less
active, and he ma+es the lessee
en)oy 2 Ohace go6arP
Repairs !su#ructuary has the duty to
ma+e ordinary repairs
The lessee generally has no
duty to pay #or repairs
7axes !su#ructuary pays #or annual
charges F ta'es on #ruits
8essees canGt constitute a
usu#ruct on the property leased
.t#er t#ings !su#ructuary may lease the
property itsel# to another
C. ?in+s o. 8su.ruct
1. According to ?ource :&rticle 34;
Professor Ruben F. Balane Pa)e *-. of +,-
Art. 563. >sufruct is constituted b" law% b" the will of
private persons e-pressed in acts inter (i(os or in a last will and
testament% and b" prescription.
a. Voluntary or Conventional :i.e. contracts, donations, wills;
b. 8egal < created by law :i.e. &rticle 224, ?2, Family Code;
Art. 226$ %2. The right of the parents over the fruits and
income of the child:s propert" shall be limited primaril" to the
child:s support and secondaril" to the collective dail" needs of
the famil".
2. According to 9-tent :&rticle 34$;
Art. 564. >sufruct ma" be constituted on the whole or a part
of the fruits of the thing% in favor of one more persons%
simultaneousl" or successivel"% and in ever" case from or to a
certain da"% purel" or conditionall". ,t ma" also be constituted on a
right% provided it is not strictl" personal or intransmissible.
a. Total < all o# the #ruits
b. Aartial < part o# the #ruits
. According to Persons 9njo"ing the *ight of >sufruct :&rticle 34$;
a. .imple < only one usu#ructuary en)oys
b. Bultiple < several usu#ructuaries en)oy
i. .imultaneous
ii. .uccessive
$. According to the Terms of the >sufruct :&rticle 34$;
a. Aure < no terms and conditions
b. Conditional
c. "ith a Term or Aeriod
3. According to the #bject of the >sufruct :&rticle 34$;
a. Things
b. ,ights
& usu#ruct may be constituted on a right provided that it is not
strictly personal or intransmissible.
D. Ri/"ts o. t"e 8su.ructuar!
1. *ight to the fruits :&rticles 344 2 3C1;
Art. 566. The usufructuar" shall be entitled to all the
natural% industrial and civil fruits of the propert" in usufruct. 0ith
respect to hidden treasure which ma" be found on the land or
tenement% he shall be considered a stranger.
Art. 567. 2atural or industrial fruits growing at the time the
usufruct begins% belong to the usufructuar".
Those growing at the time the usufruct terminates% belong to
the owner.
Professor Ruben F. Balane Pa)e *-+ of +,-
,n the preceding cases% the usufructuar"% at the beginning of
the usufruct% has no obligation to refund to the owner an"
e-penses incurred3 but the owner shall be obliged to reimburse at
the termination of the usufruct% from the proceeds of the growing
fruits% the ordinar" e-penses of cultivation% for seed% and other
similar e-penses incurred b" the usufructuar".
The provisions of this article shall not prejudice the rights of
third persons% ac.uired either at the beginning or at the
termination of the usufruct.
Art. 568. ,f the usufructuar" has leased the lands or
tenements given in usufruct% and the usufruct should e-pire before
the termination of the lease% he or his heirs and successors shall
receive onl" the proportionate share of the rent that must be paid
b" the lessee.
Art. 569. Civil fruits are deemed to accrue dail"% and belong
to the usufructuar" in proportion to the time the usufruct ma" last.
Art. 570. 0henever a usufruct is constituted on the right to
receive a rent or periodical pension% whether in mone" or in fruits%
or in the interest on bonds or securities pa"able to bearer% each
pa"ment due shall be considered as the proceeds or fruits of such
right.
0henever it consists in the enjo"ment of benefits accruing
from a participation in an" industrial or commercial enterprise% the
date of the distribution of which is not fi-ed% such benefits shall
have the same character.
,n either case the" shall be distributed as civil fruits% and
shall be applied in the manner prescribed in the preceding article.
/ntitled to all the natural, industrial, and civil #ruits o# the property in
usu#ruct.
Natural or industrial #ruits growing at the time the usu#ruct begins,
belong to the usu#ructuary. Those growing at the time the usu#ruct
terminates belong to the owner.
The usu#ructuary at the beginning o# the usu#ruct, has no obligation to
re#und to the owner any e'penses incurred.
The owner shall reimburse at the termination o# the usu#ruct #rom the
proceeds o# the growing #ruits, the ordinary e'penses o# cultivation
incurred by the usu#ructuary.
,ents derived #rom the lease o# properties in usu#ruct are civil #ruits.
The usu#ructuary is entitled to receive such rents only up to the time o#
the e'piration o# the usu#ruct, i# the lease still subsists a#ter the
termination o# the usu#ruct. For e'ample, i# the lease is #or 3 years and
the usu#ruct terminates a#ter the 2
nd
year, the usu#ructuary shall be
entitled to 2 years rent% the rent #or the remaining period will belong to
the owner.
2. *ight to enjo" an" increase in the accession or an" servitude :&rticle
3C1;
Professor Ruben F. Balane Pa)e *-/ of +,-
Art. 571. The usufructuar" shall have the right to enjo" an"
increase which the thing in usufruct ma" ac.uire through
accession% the servitudes established in its favor% and% in general%
all the benefits inherent therein.
The usu#ructuary shall have the right to en)oy any increase which the
thing in usu#ruct may ac-uire through accession, the servitudes
established in its #avor, and, in general, all the bene#its inherent
therein.
. *ight to alienate the right of usufruct :&rticles 3C2, 3E1;
Art. 572. The usufructuar" ma" personall" enjo" the thing in
usufruct% lease it to another% or alienate his right of usufruct% even
b" a gratuitous title3 but all the contracts he ma" enter into as such
usufructuar" shall terminate upon the e-piration of the usufruct%
saving leases of rural lands% which shall be considered as
subsisting during the agricultural "ear.
Art. 590. A usufructuar" who alienates or leases his right of
usufruct shall answer for an" damage which the things in usufruct
ma" suffer through the fault or negligence of the person who
substitutes him.
The usu#ructuary may lease or alienate his right o# usu#ruct, even by
gratuitous title.
&ll the contracts he may enter into as such usu#ructuary shall terminate
upon the e'piration o# the usu#ruct e'cept lease o# rural lands, which
shall be considered as subsisting during the agricultural year.
& usu#ructuary who alienates or leases his right o# usu#ruct shall answer
#or any damage which the things in usu#ruct may su##er through the
#ault or negligence o# the person who substituted him.
$. *ight to recover :&rticle 3CD;
Art. 578. The usufructuar" of an action to recover real
propert" or a real right% or an" movable propert"% has the right to
bring the action and to oblige the owner thereof to give him the
authorit" for this purpose and to furnish him whatever proof he
ma" have. ,f in conse.uence of the enforcement of the action he
ac.uires the thing claimed% the usufruct shall be limited to the
fruits% the dominion remaining with the owner.
The usu#ructuary o# an action to recover real property or a real right, or
movable property, has the right to bring the action.
The owner is obligated to give him the authority #or this purpose and
to #urnish him whatever proo# he may have.
7# in conse-uence o# the en#orcement o# the action he ac-uires the
thing claimed, the usu#ruct shall be limited to the #ruits, the dominion
remaining with the owner.
3. *ight to make useful and ornamental e-penses :&rticle 3CE;
Professor Ruben F. Balane Pa)e *-, of +,-
Art. 579. The usufructuar" ma" make on the propert" held in
usufruct such useful improvements or e-penses for mere pleasure
as he ma" deem proper% provided he does not alter its form or
substance3 but he shall have no right to be indemnified therefor. 8e
ma"% however% remove such improvements% should it be possible to
do so without damage to the propert".
.uch right e'ists as long as he does not alter the propertys #orm or
substance.
The usu#ructuary shall have no right o# reimbursement.
The usu#ructuary may remove use improvements i# it is possible to do
so without causing damage to the property.
4. *ight to an" increase in the value due to indispensable repairs
made :&rticle 3E$;
Art. )D<. ,f the owner should make the e-traordinar"
repairs% he shall have a right to demand of the usufructuar" the
legal interest on the amount e-pended for the time that the
usufruct lasts.
?hould he not make them when the" are indispensable for
the preservation of the thing% the usufructuar" ma" make them3 but
he shall have a right to demand of the owner% at the termination of
the usufruct% the increase in value which the immovable ma" have
ac.uired b" reason of the repairs.
The usu#ruct who has made the e'traordinary repairs necessary #or
preservation is entitled to recover #rom the owner the increase in value
which the tenement ac-uired by reason o# such wor+.
9. #bligations of the >sufructuar"
1. To make an inventor" :&rticle 3D;
Art. 583. The usufructuar"% before entering upon the
enjo"ment of the propert"% is obliged+
5'6 To make% after notice to the owner or his legitimate
representative% an inventor" of all the propert"% which shall
contain an appraisal of the movables and a description of
the condition of the immovables3
546 To give securit"% binding himself to fulfill the obligations
imposed upon him in accordance with this Chapter.
7nventory contains an appraisal o# the movables and a description o#
the immovables.
/##ect o# Not 5iving9 &rticles 3D4, 3EE
Art. 586. ?hould the usufructuar" fail to give securit" in the
cases in which he is bound to give it% the owner ma" demand that
the immovables be placed under administration% that the movables
be sold% that the public bonds% instruments of credit pa"able to
order or to bearer be converted into registered certificates or
deposited in a bank or public institution% and that the capital or
sums in cash and the proceeds of the sale of the movable propert"
be invested in safe securities.
The interest on the proceeds of the sale of the movables and
that on public securities and bonds% and the proceeds of the
propert" placed under administration% shall belong to the
usufructuar".
@urthermore% the owner ma"% if he so prefers% until the
usufructuar" gives securit" or is e-cused from so doing% retain in
his possession the propert" in usufruct as administrator% subject to
the obligation to deliver to the usufructuar" the net proceeds
thereof% after deducting the sums which ma" be agreed upon or
judiciall" allowed him for such administration.
Art. 599. The usufructuar" ma" claim an" matured credits
which form a part of the usufruct if he has given or gives the
proper securit". ,f he has been e-cused from giving securit" or has
been able to give it% or if that given is not sufficient% he shall need
the authori$ation of the owner% or of the court in default thereof% to
collect such credits.
The usufructuar" who has given securit" ma" use the capital
he has collected in an" manner he ma" deem proper. The
usufructuar" who has not given securit" shall invest the said
capital at interest upon agreement with the owner3 in default of
such agreement% with judicial authori$ation3 and% in ever" case%
with securit" sufficient to preserve the integrit" of the capital in
usufruct.
/'ceptions to 5iving o# 7nventory
a. No one will be in)ured :&rticle 3D3;
Art. 585. The usufructuar"% whatever ma" be the title
of the usufruct% ma" be e-cused from the obligation of
making an inventor" or of giving securit"% when no one will
be injured thereb".
b. "aiver o# owner :i.e. stipulation in the will or contract;
2. Give securit" :&rticle 3D;
Art. 583. The usufructuar"% before entering upon the
enjo"ment of the propert"% is obliged+
5'6 To make% after notice to the owner or his legitimate
representative% an inventor" of all the propert"% which shall
contain an appraisal of the movables and a description of the
condition of the immovables3
546 To give securit"% binding himself to fulfill the obligations
imposed upon him in accordance with this Chapter.
/##ect o# Not 5iving9
a. The owner may demand the #ollowing
1. That the immovables be placed under
administration
2. That the movables be sold
. That the public bonds, instruments o# credit
payable to order or bearer be converted into registered
certi#icates or deposited in a ban+ or public institution
$. That the capital or sums o# in cash and the
proceeds o# the sale o# the movable property be invested in sa#e
securities
The interest on the proceeds o# the sale o# the movables and
that on the public securities and bonds and the proceeds o#
the property placed under administration shall belong to the
usu#ructuary.
b. The owner i# he so pre#ers shall retain possession o# the property as
administrator until security is given.
c. The usu#ructuary who has not given security shall invest the capital
collected at interest upon agreement with the owner% in de#ault o#
the agreement with )udicial authori6ation.
7nstances when .ecurity is Not ,e-uired
a. No one will be in)ured :&rticle 3D3;
Art. 585. The usufructuar"% whatever ma" be the title
of the usufruct% ma" be e-cused from the obligation of
making an inventor" or of giving securit"% when no one will
be injured thereb".
b. "aiver
c. 7# usu#ructuary is the donor o# the property :&rticle 3D$;
Art. 584. The provisions of 2o. 4 of the preceding
article shall not appl" to the donor who has reserved the
usufruct of the propert" donated% or to the parents who are
usufructuaries of their children:s propert"% e-cept when the
parents contract a second marriage.
d. 7n case o# usu#ruct by parents :&rticle 224, ?2, Family Code;
Article 226$ %2. The right of the parents over the fruits
and income of the child:s propert" shall be limited primaril"
to the child:s support and secondaril" to the collective dail"
needs of the famil".
Exception: "hen the parents contract a 2
nd
marriage :&rticle
3D$;
Art. 584. The provisions of 2o. 4 of the preceding
article shall not appl" to the donor who has reserved the
usufruct of the propert" donated% or to the parents who are
usufructuaries of their children:s propert"% e-cept when the
parents contract a second marriage.
e. 7n case o# caucion "uratoria :&rticle 3DC;
Art. 587. ,f the usufructuar" who has not given
securit" claims% b" virtue of a promise under oath% the
deliver" of the furniture necessar" for his use% and that he
and his famil" be allowed to live in a house included in the
usufruct% the court ma" grant this petition% after due
consideration of the facts of the case.
The same rule shall be observed with respect to
implements% tools and other movable propert" necessar" for
an industr" or vocation in which he is engaged.
,f the owner does not wish that certain articles be sold
because of their artistic worth or because the" have a
sentimental value% he ma" demand their deliver" to him upon
his giving securit" for the pa"ment of the legal interest on
their appraised value.
;aucion "uratoria re#ers to the case contemplated by &rt. 3DC
whereby the usu#ructuary, being unable to #ile the re-uired bond
or security, #iles a veri#ied petition in the proper court, as+ing #or
the delivery o# the house and #urniture necessary #or himsel# and
his #amily without any bond or security.
The same rule shall also be applied to the instruments or tools
necessary #or an industry or vocation in which the usu#ructuary
is engaged.
. Due care :&rticles 3DE, 411;
Art. 589. The usufructuar" shall take care of the things given
in usufruct as a good father of a famil".
Art. 610. A usufruct is not e-tinguished b" bad use of the
thing in usufruct3 but if the abuse should cause considerable injur"
to the owner% the latter ma" demand that the thing be delivered to
him% binding himself to pa" annuall" to the usufructuar" the net
proceeds of the same% after deducting the e-penses and the
compensation which ma" be allowed him for its administration.
Ta+e care o# the things in usu#ruct as a good #ather o# a #amily.
Professor Ruben F. Balane Pa)e *-- of +,-
=ad use o# the thing in usu#ruct shall not e'tinguish the usu#ruct.
>owever, i# the abuse should cause considerable in)ury to the owner,
the owner may demand that the thing be delivered to him. 7# the thing
is delivered to the owner, the owner shall deliver to the usu#ructuary
the net proceeds.
$. Answer for damages caused b" his substitute(s fault or negligence
:&rticle 3E1;
Art. 590. A usufructuar" who alienates or leases his right of
usufruct shall answer for an" damage which the things in usufruct
ma" suffer through the fault or negligence of the person who
substitutes him.
7# the usu#ructuary alienates or leases his right o# usu#ruct, in case the
things in usu#ruct should su##er damage by the #ault or negligence o#
the usu#ructuarys substitute, the usu#ructuary is liable.

3. >sufruct over livestock :&rticle 3E1;
Art. 591. ,f the usufruct be constituted on a flock or herd of
livestock% the usufructuar" shall be obliged to replace with the
"oung thereof the animals that die each "ear from natural causes%
or are lost due to the rapacit" of beasts of pre".
,f the animals on which the usufruct is constituted should all
perish% without the fault of the usufructuar"% on account of some
contagious disease or an" other uncommon event% the usufructuar"
shall fulfill his obligation b" delivering to the owner the remains
which ma" have been saved from the misfortune.
?hould the herd or flock perish in part% also b" accident and
without the fault of the usufructuar"% the usufruct shall continue on
the part saved.
?hould the usufruct be on sterile animals% it shall be
considered% with respect to its effects% as though constituted on
fungible things.
7# the usu#ruct be over livestoc+, the usu#ructuary is obligated to
replace with the young, the animals that die each year #rom natural
causes or lost due to the rapacity o# beasts.
7# the animals on which the usu#ruct is constituted should all perish,
without the #ault o# the usu#ructuary, on account o# some contagious
disease or any other uncommon event, the usu#ructuary shall #ul#ill his
obligation by delivering to the owner the remains which may have been
saved.
4. ;ake ordinar" repairs :&rticle 3E2;
Art. 592. The usufructuar" is obliged to make the ordinar"
repairs needed b" the thing given in usufruct.
G" ordinar" repairs are understood such as are re.uired b"
the wear and tear due to the natural use of the thing and are
indispensable for its preservation. ?hould the usufructuar" fail to
make them after demand b" the owner% the latter ma" make them
at the e-pense of the usufructuar".
The usu#ructuary is obligated to ma+e ordinary repairs.
0rdinary repairs mean those repairs which arise out o# the normal wear
and tear o# use.
7# the usu#ructuary does not ma+e ordinary repairs, the owner may
ma+e ordinary repairs at the e'pense o# the usu#ructuary.
C. To notif" the owner of urgent repairs :&rticle 3E;
Art. 593. 9-traordinar" repairs shall be at the e-pense of
the owner. The usufructuar" is obliged to notif" the owner when
the need for such repairs is urgent.
The usu#ructuary is obligated to noti#y the owner when the need #or
such repairs is urgent.
D. To pa" interest on the amount e-pended for e-traordinar" repairs
:&rticle 3E$;
Art. 594. ,f the owner should make the e-traordinar"
repairs% he shall have a right to demand of the usufructuar" the
legal interest on the amount e-pended for the time that the
usufruct lasts.
?hould he not make them when the" are indispensable for
the preservation of the thing% the usufructuar" ma" make them3 but
he shall have a right to demand of the owner% at the termination of
the usufruct% the increase in value which the immovable ma" have
ac.uired b" reason of the repairs.
7# the owner should ma+e e'traordinary repairs, the usu#ructuary is
liable to pay legal interest on the amount e'pended until the e'piration
o# the usu#ruct.
E. Allow work b" owner which does not prejudice the usufructuar"
:&rticle 3E3;
Art. 595. The owner ma" construct an" works and make an"
improvements of which the immovable in usufruct is susceptible% or
make new plantings thereon if it be rural% provided that such acts
do not cause a diminution in the value of the usufruct or prejudice
the right of the usufructuar".
The owner may construct wor+s and improvements provided that such
acts do not cause a diminution o# the value o# the usu#ruct or pre)udice
the right o# the usu#ructuary.
Professor Ruben F. Balane Pa)e .4* of +,-
11. Pa" annual charges :&rticles 3E423EC;
Art. 596. The pa"ment of annual charges and ta-es and of
those considered as a lien on the fruits% shall be at the e-pense of
the usufructuar" for all the time that the usufruct lasts.
Art. 597. The ta-es which% during the usufruct% ma" be
imposed directl" on the capital% shall be at the e-pense of the
owner.
,f the latter has paid them% the usufructuar" shall pa" him
the proper interest on the sums which ma" have been paid in that
character3 and% if the said sums have been advanced b" the
usufructuar"% he shall recover the amount thereof at the
termination of the usufruct.
&nnual charges and ta'es imposed on the #ruits are shouldered by the
usu#ructuary.
8and ta'es on the usu#ruct are shouldered by the owner.
11. To notif" the owner of an" act of a 7
rd
person :&rticle 411;
Art. 601. The usufructuar" shall be obliged to notif" the
owner of an" act of a third person% of which he ma" have
knowledge% that ma" be prejudicial to the rights of ownership% and
he shall be liable should he not do so% for damages% as if the" had
been caused through his own fault.
7# the usu#ructuary does not noti#y the owner o# the any pre)udicial act
by a
rd
person, the usu#ructuary shall be liable #or damages.
12. ?houlder the e-penses% costs% and liabilities in suits involving the
usufruct :&rticle 412;
Art. 602. The e-penses% costs and liabilities in suits brought
with regard to the usufruct shall be borne b" the usufructuar".
1. *eturn the thing at the termination of the usufruct :&rticle 412;
Art. 612. >pon the termination of the usufruct% the thing in
usufruct shall be delivered to the owner% without prejudice to the
right of retention pertaining to the usufructuar" or his heirs for
ta-es and e-traordinar" e-penses which should be reimbursed.
After the deliver" has been made% the securit" or mortgage shall be
cancelled.
7# in case the usu#ructuary or his heirs should be reimbursed, there
would be a right o# retention by the usu#ructuary or the heirs.
&#ter delivery o# the thing, the security shall be cancelled.
Professor Ruben F. Balane Pa)e .4. of +,-
F. /'tinguishment o# the !su#ruct
1. G" death of the usufructuar" :&rticle 41 :1;;
/'ceptions
a. Contrary intention
b. *e#inite period
c. "hen the usu#ruct is in #avor o# several persons
i. .uccessively or
ii. .imultaneously
2. G" the e-piration of the period for which it was constituted or b"
the fulfillment of an" resolutor" condition :&rticle 41 :2;;
. G" merger of the usufruct and ownership in the same person :&rticle
41 :;;
$. G" renunciation of the usufructuar" :&rticle 41 :$;;
3. G" the total loss of the thing in usufruct :&rticle 41 :3;;
4. G" the termination of the right of the person constituting the
usufruct :&rticle 41 :4;;
C. G" prescription :&rticle 41 :C;;
D. Non2#ul#illment o# a mode imposed on the usu#ructuary
E. ,escission or annulment o# the contract
11. 8egal ways o# e'tinguishing usu#ruct :i.e. termination o# parental
authority terminates the parents usu#ruct with regard to the childs
adventitious property;
11. Butual dissent
12. &lienation by innocent purchaser #or value :&rticle C1E
;
1. >appening o# a resolutory condition
=. 9A?9;92T?
&n easement is a real right constituted in anothers tenement whereby the
owner o# the latter must re#rain #rom doing or allow something to be done on
his property #or the bene#it o# another thing or person.
The term is OeasementP is a common2law term. .ervitude is the civil law term.
& servitude is broader in scope. For e'ample, an easement does not include
the right to draw water. >owever at present, both terms are interchangeable.
&n easement grants less rights than a usu#ruct. &n easement never carries
with it the right to possess. The rights granted by an easement are very
limited.
`
Art. 102. The titles o# ownership, or o# other rights over immovable property, which are not
duly inscribed or annotated in the ,egistry o# Aroperty shall not pre)udice third persons.
Professor Ruben F. Balane Pa)e .4+ of +,-
A. *"aracteristics
1. &lways a real right
Gasic *ule+ There can be N0 easement on personal property.
2. Can only be imposed only on the property o# another
7t cannot be imposed on your property.
. Aroduces limitations on ownership but the ownership is not impaired
$. 7nseparable #rom the tenements #rom which it is passively or actively
attached :&rticle 41C;
Art. 617. 9asements are inseparable from the estate to
which the" activel" or passivel" belong.
3. 7ndivisible
G. ?in+s o. Easeents
1. As to Genefit
a. Real :&rticle 41;
Art. 613. An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of another
immovable belonging to a different owner.
The immovable in favor of which the easement is
established is called the dominant estate3 that which is subject
thereto% the servient estate.
& real easement is one in #avor o# another immovable < the
dominant estate.
This is more common than the personal easement.
b. &ersonal
& personal easement is in #avor o# a community, or o# one or more
persons to whom the encumbered estate does not belong :i.e.
easement #or drawing water;.
2. As to ;anner of 9-ercise :&rticle 413;
Art. 615. 9asements ma" be continuous or discontinuous%
apparent or nonapparent.
Continuous easements are those the use of which is or ma"
be incessant% without the intervention of an" act of man.
Discontinuous easements are those which are used at
intervals and depend upon the acts of man.
Apparent easements are those which are made known and
are continuall" kept in view b" e-ternal signs that reveal the use
and enjo"ment of the same.
2onapparent easements are those which show no e-ternal
indication of their e-istence.
a. *ontinuous
Professor Ruben F. Balane Pa)e .4/ of +,-
Continuous easements are those the use o# which is or may be
incessant, without the intervention o# any act o# man.
b. Discontinuous
*iscontinuous easements are those which are used at intervals and
depend upon the acts o# man :i.e. right o# way;
. As to ,ndication of 9-istence :&rticle 413;
a. Apparent
&pparent easements are those which are made +nown and are
continually +ept in view by e'ternal signs that reveal the use and
en)oyment o# the same.
For e'ample, a right o# way is apparent i# the path is mar+ed o##.
b. #on<apparent
Non2apparent easements are those which show no e'ternal
indication o# their e'istence.
For e'ample, a right o# way is non2apparent i# the path is not
mar+ed.
$. As to 2ature of the !imitation :&rticle 414;
Art. 616. 9asements are also positive or negative.
A positive easement is one which imposes upon the owner of
the servient estate the obligation of allowing something to be done
or of doing it himself% and a negative easement% that which
prohibits the owner of the servient estate from doing something
which he could lawfull" do if the easement did not e-ist.
a. &ositi(e
Aositive easements are those which impose upon the owner o# the
servient estate the obligation o# allowing something to be done or o#
doing it himsel#.
i. In patiendo :&rticle 4D1, 1
st
part;
&llowing something to be done
ii. In !aciendo :&rticle 4D1, 2
nd
part;
*oing it yoursel#
b. #e/ati(e
Negative easements are those which prohibit the owner o# the
servient estate #rom doing something which he could law#ully do i#
the easement did not e'ist. 7n allowing someone to do something in
your estate, you are prohibited #rom preventing that person #rom
doing that something.
,.7E: .ome commentators believe that all easements are negative.
/asements are restrict the owners #rom doing something which they
could otherwise do. "hat appear to be positive easements are in #act
really negative easements.
1. As to ?ource
a. @oluntar! :&rticle 41E;
Professor Ruben F. Balane Pa)e .4, of +,-
Art. 619. 9asements are established either b" law or
b" the will of the owners. The former are called legal and the
latter voluntar" easements.
/stablished by the will o# the owners
7n ,ort# ,egros +ugar ;entral vs. 3idalgo, North Negros .ugar
Central :NN.C; constructed across its properties a road connecting
the mill site with the provincial highway. NN.C made the road
accessible to the public, a toll #ee being charged in cases o# motor
vehicles, F pedestrians being allowed #ree passage. & tuba saloon
was in the ad)oining hacienda. The owner p# the saloon passed
through the connecting road as it was his only means o# access.
NN.C sought to en)oin the owner o# the tuba saloon #rom using the
road in -uestion since NN.Cs wor+ers got drun+.
There are 2 very persuasive views in the case o# ,,+; vs. 3idalgo.
The ma)ority said that NN.C voluntarily constituted an easement o#
way in #avor o# the general public. NN.C could not discriminate
against certain persons who may want to use the road. This is
clearly a case o# a servitude voluntarily constituted in #avor o# the
community under &rticle 31. >aving been devoted by NN.C to the
use o# the public in general, the road is charged wK public interest F
while so devoted. NN.C may not establish discriminatory e'ceptions
against any private persons.
The dissent said that there was no easement by using the process
o# elimination. & voluntary easement can be created only by will, by
a donation or by a contract. 7n this case, there was no will,
donation, or contract.
b. :e/al :&rticle 41E;
/stablished by law
c. 0ixe+
& mi'ed easement can be ac-uired through prescription
C. 4 ;odes of Ac.uiring 9asements
1. Title
Title means the )uridical act which gives rise to the servitude :i.e. law,
donation, contract, will;
&ll +inds o# easements can be created by title
a. Continuous and apparent easements
b. Continuous and non2apparent easements
c. *iscontinuous and apparent easements
d. *iscontinuous and non2apparent easements
/-uivalents o# Title
a. *eed o# recognition :&rticle 42;
Art. 623. The absence of a document or proof showing
the origin of an easement which cannot be ac.uired b"
prescription ma" be cured b" a deed of recognition b" the
owner of the servient estate or b" a final judgment.
b. Final )udgment :&rticle 42;
c. &pparent sign :&rticle 42$;
Art. 624. The e-istence of an apparent sign of
easement between two estates% established or maintained b"
the owner of both% shall be considered% should either of them
be alienated% as a title in order that the easement ma"
continue activel" and passivel"% unless% at the time the
ownership of the two estates is divided% the contrar" should
be provided in the title of conve"ance of either of them% or
the sign aforesaid should be removed before the e-ecution of
the deed. This provision shall also appl" in case of the
division of a thing owned in common b" two or more
persons.
7n Amor vs. ?lorentino owned a house and a camarin. The
house had windows. From the said windows the house
receives light and air #rom the lot where the camarin stood. The
camarin and the house were disposed o#. The windows were not
closed. The .C said that an easement o# light and view had
been established. "hen ownership passed to theirs, nothing was
done to the windows. The new owner o# the house continued to
e'ercise the right o# receiving light and air through those
windows. The visible and permanent sign o# an easement is the
title that characteri6es its e'istence. /'istence o# the apparent
sign had the same e##ect as a title o# ac-uisition o# the easement
o# light and view upon death o# original owner.
There is an error in &rticle 42$ according to Aro#essor =alane.
&rticle 42$ provides OThe e'istence\. as title in order that the
easement may continue\P &ccording to Aro#essor =alane, the
use o# the word OcontinueP is wrong. 7t should be Othe easement
may ariseP since there is no easement yet. There is no
easement yet since both properties have only 1 owner. There
are only seeds o# a potential easement.
2. Prescription
0N8H continuous and apparent easements may be created by
prescription.
7n order #or an easement to be ac-uired by prescription, good #aith or
bad #aith is irrelevant. The easement can be ac-uired a#ter the lapse o#
11 years.
Counting o# the 11 year prescriptive period
a. Aositive easements
.tart counting #rom the 1
st
act constituting the e'ercise o# the
easement was per#ormed.
b. Negative easements
.tart counting #rom the time when the owner o# the dominant
estate serves a notarial prohibition on the owner o# the
prospective servient estate.
,.7E: Bost easements are clearly positive or negative easements.
>owever, an easement o# light and view is both a positive and a
negative easement. There are special rules to determine the counting
o# the prescriptive period.
a. .tart counting #rom the 1
st
easement was per#ormed < i# the opening through which the light
and view passes is a party wall.
*ationale9 7# the neighbor does not li+e the opening, he can
always close it.
b. .tart counting #rom the time when the owner o# the dominant
estate serves a notarial prohibition on the owner o# the prospective
servient estate < i# the opening is made on the dominant owners
own wall.
*ationale+ The neighbor cannot close the opening since its
in the dominant owners property.
Art. 625. >pon the establishment of an easement% all the rights
necessar" for its use are considered granted.
!pon the establishment o# an easement, all the rights necessary #or its use
are considered granted.
&n e'ample o# this is &rticle 4$1. &n easement #or drawing water may
carry with it the easement o# right o# way. 7# the well is in the middle o#
someone elses property how can one draw water without having to pass
through that persons property(
Art. 626. The owner of the dominant estate cannot use the
easement e-cept for the benefit of the immovable originall"
contemplated. 2either can he e-ercise the easement in an" other
manner than that previousl" established.
&rticle 424 is a classic case o# an intent that #ailed. &rticle 424 was meant
to overrule the ruling in >alderrama vs. ,ort# ,egros +ugar ;o.
7n >alderrama vs. ,ort# ,egros +ugar ;o. Valderrama e'ecuted a contract
with North Negros :NN.C; whereby NN.C agreed to install a sugar central
o# minimum capacity o# 11 tons #or grinding and milling al sugar cane
grown by Valderrama who in turn bound himsel# to #urnish the central all
the cane they might produce. & railroad was constructed on Valderramas
land to transport the sugarcane harvested. >owever, Valderrama was
unable to supply the re-uired amount o# sugarcane. NN.C had to contract
with other sugarcane growers. Valderrama alleges that the easement
granted in #avor o# North Negros was only #or the transportation o# the
sugarcane o# Valderrama. The .C said that the easement was created to
enable NN.C to build and maintain a railroad #or transportation o# sugar
cane. To limit use e'clusively to the cane o# the hacienda owners would
ma+e the contract ine##ective. Furthermore, it is against the nature o# the
easement to pretend that it was established in #avor o# the servient
estates. The easement was created in #avor o# the corporation and not #or
the hacienda owners. The corporation may allow its wagons to pass by the
trac+s as many times as it may deem #it.
The solution to the problem in >alderrama vs. ,,+; would be to stipulate
in the contract that a violation o# the any o# the conditions would terminate
the easement.
Art. 627. The owner of the dominant estate ma" make% at his
own e-pense% on the servient state an" works necessar" for the use
and preservation of the servitude% but without altering it or rendering
it more burdensome.
@or this purpose he shall notif" the owner of the servient estate%
and shall choose the most convenient time and manner so as to cause
the least inconvenience to the owner of the servient estate.
&t his own e'pense, the owner o# the dominant estate may ma+e any
wor+s on the servient estate which are necessary #or the use and
preservation o# the servitude.
.uch wor+s cannot alter or ma+e the servitude more burdensome.
The owner o# the dominant estate must noti#y the owner o# the servient
estate. The owner o# the dominant estate must choose the most
convenient time and manner so as to cause the least inconvenience to the
owner o# the servient estate.
Art. 628. ?hould there be several dominant estates% the owners
of all of them shall be obliged to contribute to the e-penses referred to
in the preceding article% in proportion to the benefits which each ma"
derive from the work. An" one who does not wish to contribute ma"
e-empt himself b" renouncing the easement for the benefit of the
others.
,f the owner of the servient estate should make use of the
easement in an" manner whatsoever% he shall also be obliged to
contribute to the e-penses in the proportion stated% saving an
agreement to the contrar".
7# there are several dominant estates with a common servitude, the
e'penses #or its use and preservation shall be shouldered by the owners o#
the dominant estates in proportion to the bene#it that they receive.
7n the absence o# proo# to the contrary, the presumption is that the
bene#its are e-ual.
7# the owner o# the servient estate also ma+es use o# the servitude, he
must also contribute in proportion to the bene#it he receives.
Professor Ruben F. Balane Pa)e .4- of +,-
D. Extin/uis"ent o. Easeents
1. G" merger of ownership of the dominant and servient estates
The merger must be complete, absolute and permanent.
7# the owner o# the servient estate becomes a co2owner o# the dominant
estate, the easement subsists since the merger is not complete.
7# the sale is a pacto de retro sale, then the merger is not complete.
The easement is only suspended
2. 9-tinctive prescription
&ll the dominant owner o# the estate has to do is to stop using it
continuously.
7n the case o# legal easements, the right to claim is never e'tinguished.
&ll the dominant owner o# the estate has to do is to claim it.
. 0hen either or both of the estates fall into such condition that the
easement cannot be used. 8owever% it shall be revived if the
subse.uent condition of either or both of the estates should permit
its use. This is however subject to e-tinctive prescription
This is not a ground #or e'tinguishments. This is a ground #or
suspension o# the easement. The suspension may eventually lead to
e'tinguishment o# the easement i# there is e'tinctive prescription.
$. 9-piration of the term of the fulfillment of the condition
3. *enunciation of the owner of the dominant estate
There is dispute as to whether or not the renunciation can be tacit or
not. &ccording to Aro#essor =alane, it can be tacit under &rticle 4 o# the
Civil Code. ,ights may be waived. There is no prescribed #orm.
4. Gu" off the easement
C. 9-propriation of the servient estate
There can be no easement over property o# the public dominion.
D. Permanent impossibilit" to make use of the easement
E. Annulment or cancellation of the contract of easement
11. *esolution of grantor(s right to create the easement
& sells land to = via a pacto de retro sale. = while being a vendee de
retro grants an easement to C. 7# &, the vendor, redeems, the
easement given to C is e'tinguished.
11. *egistration of the servient estate as free and without an"
encumbrance in the Torrens ?"stem in favor of an innocent
purchaser for value
12. Cessation of necessit"% in case of a legal easement of right of wa"
:&rticle 433
Art. &$$. 7# the right o# way granted to a surrounded estate ceases to be necessary because
its owner has )oined it to another abutting on a public road, the owner o# the servient estate
may demand that the easement be e'tinguished, returning what he may have received by way
o# indemnity. The interest on the indemnity shall be deemed to be in payment o# rent #or the
use o# the easement.
The same rule shall be applied in case a new road is opened giving access to the
isolated estate.
Professor Ruben F. Balane Pa)e .*4 of +,-
9. !egal 9asements :Aroper;
1. 0aters
The "ater Code :&rticles 1232; amends many o# the easements.
&rticles 32 and 111
o# the "ater Code are the repealing clauses

&rticle 4C :natural drainage o# lands; has been superseded by &rticle
31 o# the "ater Code.
Art. 637. !ower estates are obliged to receive the waters
which naturall" and without the intervention of man descend
from the higher estates% as well as the stones or earth which
the" carr" with them.
The owner of the lower estate cannot construct works
which will impede this easement3 neither can the owner of the
higher estate make works which will increase the burden.
Art. 50$ 9ater *o+e. !ower estates are obliged to receive
the waters which naturall" and without the intervention of man
flow from the higher estate% as well as the stone or earth which
the" carr" with them.
The owner of the lower estate can not construct works
which will impede this natural flow% unless he provides an
alternative method of drainage3 neither can the owner of the
higher estate make works which will increase this natural flow.
&rticle 4D :tow path; has been superseded by &rticle 31 o# the "ater
Code.
Art. 638. The banks of rivers and streams% even in
case the" are of private ownership% are subject throughout their
entire length and within a $one of three meters along their
margins% to the easement of public use in the general interest of
navigation% floatage% fishing and salvage.
7n both cases, the public highway must substantially meet the needs o# the dominant
estate in order that the easement may be e'tinguished.
Art. $%. The establishment, e'tent, #orm, and conditions o# easements o# water not
e'pressly determined by the provisions o# this Code shall be governed by the provisions o# the
Civil Code.
Art. )00. The #ollowing laws, parts andKor provisions o# laws are hereby repealed9
a. The provisions o# the .panish 8aw on "aters o# &ugust , 1D44, the Civil Code o# .pain
o# 1DDE and the Civil Code o# the Ahilippines :,.&. D4; on ownership o# waters,
easements relating to waters, use o# public waters and ac-uisitive prescription on the
use o# waters, which are inconsistent with the provisions o# this Code%
b. The provisions o# ,.&. 4E3, otherwise +nown as the ,evised Charter o# National Aower
Corporation, particularly section , paragraph :#;, and section 12, inso#ar as they relate
to the appropriation o# waters and the grant thereo#%
c. The provisions o# &ct No. 2132, as amended, otherwise +nown as the 7rrigation &ct,
section , paragraphs :+; and :m; o# A.*. No. D1, ,.&. 2134% .ection E1, C.&. 1C%
and,
d. &ll *ecree, 8aws, &cts, parts o# &cts, rules o# Court, e'ecutive orders, and
administrative regulations which are contrary to or inconsistent with the provisions o#
this Code.
Professor Ruben F. Balane Pa)e .** of +,-
9states adjoining the banks of navigable or floatable
rivers are% furthermore% subject to the easement of towpath for
the e-clusive service of river navigation and floatage.
,f it be necessar" for such purpose to occup" lands of
private ownership% the proper indemnit" shall first be paid.
Art. 51$ 9ater *o+e. The banks of rivers and streams and
the shores of the seas and lakes throughout their entire length
and within a $one of three 576 meters in urban areas% twent"
54E6 meters in agricultural areas and fort" 5<E6 meters in forest
areas% along their margins are subject to the easement of public
use in the interest of recreation% navigation% floatage% fishing
and salvage. 2o person shall be allowed to sta" in this $one
longer than what is necessar" for recreation% navigation%
floatage% fishing or salvage or to build structures of an" kind.
&rticle 4E :easement o# dam; has been superseded by &rticles D and
E o# the "ater Code.
Art. 639. 0henever for the diversion or taking of water
from a river or brook% or for the use of an" other continuous or
discontinuous stream% it should be necessar" to build a dam%
and the person who is to construct it is not the owner of the
banks% or lands which must support it% he ma" establish the
easement of abutment of a dam% after pa"ment of the proper
indemnit".
Art. 38$ 9ater *o+e. Authorit" for the construction of
dams% bridges and other structures across of which ma"
interfere with the flow of navigable or flotable waterwa"s shall
first be secured from the Department of Public 0orks%
Transportation and Communications.
Art. 39$ 9ater *o+e. 9-cept in cases of emergenc" to
save life or propert"% the construction or repair of the following
works shall be undertaken onl" after the plans and
specifications therefor% as ma" be re.uired b" the Council% are
approved b" the proper government agenc"3 dams for the
diversion or storage of water3 structures for the use of water
power% installations for the utili$ation of subterranean or ground
water and other structures for utili$ation of water resources.
&rticles 4$124$1 are the provisions regarding easement #or drawing o#
waters.
Art. 640. Compulsor" easements for drawing water or
for watering animals can be imposed onl" for reasons of public
use in favor of a town or village% after pa"ment of the proper
indemnit".
Art. 641. 9asements for drawing water and for
watering animals carr" with them the obligation of the owners
of the servient estates to allow passage to persons and animals
to the place where such easements are to be used% and the
indemnit" shall include this service.
Professor Ruben F. Balane Pa)e .*. of +,-
&rticles 4$224$4 are the provisions #or the easement o# a-ueduct. This
should be correlated with &rticle $E o# the "ater Code.
Art. 642. An" person who ma" wish to use upon his
own estate an" water of which he can dispose shall have the
right to make it flow through the intervening estates% with the
obligation to indemnif" their owners% as well as the owners of
the lower estates upon which the waters ma" filter or descend.
Art. 643. #ne desiring to make use of the right
granted in the preceding article is obliged+
5'6 To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended3
546 To show that the proposed right of wa" is the most
convenient and the least onerous to third persons3
576 To indemnif" the owner of the servient estate in the
manner determined b" the laws and regulations.
Art. 644. The easement of a.ueduct for private
interest cannot be imposed on buildings% court"ards% anne-es%
or outhouses% or on orchards or gardens alread" e-isting.
Art. 645. The easement of a.ueduct does not prevent
the owner of the servient estate from closing or fencing it% or
from building over the a.ueduct in such manner as not to cause
the latter an" damage% or render necessar" repairs and
cleanings impossible.
Art. 646. @or legal purposes% the easement of
a.ueduct shall be considered as continuous and apparent% even
though the flow of the water ma" not be continuous% or its use
depends upon the needs of the dominant estate% or upon a
schedule of alternate da"s or hours.
&rticle 4$C is the easement #or the construction o# stop loc+ and sluice
gate.
Art. 647. #ne who for the purpose of irrigating or
improving his estate% has to construct a stop lock or sluice gate
in the bed of the stream from which the water is to be taken%
ma" demand that the owners of the banks permit its
construction% after pa"ment of damages% including those caused
b" the new easement to such owners and to the other irrigators.
&rticle 23 o# the "ater Code is the easement #or appropriation and use
o# waters.
Art. 25$ 9ater *o+e. A holder of water permit ma"
demand the establishment of easements necessar" for the
construction and maintenance of the works and facilities needed
for the beneficial use of the waters to be appropriated subject to
the re.uirements of just compensation and to the following
conditions+
Professor Ruben F. Balane Pa)e .*+ of +,-
a. That he is the owner% lessee% mortgagee or one having
real right over the land upon which he proposes to use
water3 and
b. That the proposed easement is the most convenient and
the least onerous to the servient estate.
9asements relating to the appropriation and use of waters
ma" be modified b" agreement of the contracting parties
provided the same is not contrar" to law or prejudicial to third
persons.
2. *ight of wa" :&rticles 4$E243C;
Art. 649. The owner% or an" person who b" virtue of a real
right ma" cultivate or use an" immovable% which is surrounded b"
other immovables pertaining to other persons and without
ade.uate outlet to a public highwa"% is entitled to demand a right
of wa" through the neighboring estates% after pa"ment of the
proper indemnit".
?hould this easement be established in such a manner that
its use ma" be continuous for all the needs of the dominant estate%
establishing a permanent passage% the indemnit" shall consist of
the value of the land occupied and the amount of the damage
caused to the servient estate.
,n case the right of wa" is limited to the necessar" passage
for the cultivation of the estate surrounded b" others and for the
gathering of its crops through the servient estate without a
permanent wa"% the indemnit" shall consist in the pa"ment of the
damage caused b" such encumbrance.
This easement is not compulsor" if the isolation of the
immovable is due to the proprietor:s own acts.
Art. 650. The easement of right of wa" shall be established
at the point least prejudicial to the servient estate% and% insofar as
consistent with this rule% where the distance from the dominant
estate to a public highwa" ma" be the shortest.
Art. 651. The width of the easement of right of wa" shall be
that which is sufficient for the needs of the dominant estate% and
ma" accordingl" be changed from time to time.
Art. 652. 0henever a piece of land ac.uired b" sale%
e-change or partition% is surrounded b" other estates of the vendor%
e-changer% or co/owner% he shall be obliged to grant a right of wa"
without indemnit".
,n case of a simple donation% the donor shall be indemnified
b" the donee for the establishment of the right of wa".
Art. 653. ,n the case of the preceding article% if it is the land
of the grantor that becomes isolated% he ma" demand a right of
wa" after pa"ing a indemnit". 8owever% the donor shall not be
liable for indemnit".
Art. 654. ,f the right of wa" is permanent% the necessar"
repairs shall be made b" the owner of the dominant estate. A
Professor Ruben F. Balane Pa)e .*/ of +,-
proportionate share of the ta-es shall be reimbursed b" said owner
to the proprietor of the servient estate.
Art. 655. ,f the right of wa" granted to a surrounded estate
ceases to be necessar" because its owner has joined it to another
abutting on a public road% the owner of the servient estate ma"
demand that the easement be e-tinguished% returning what he ma"
have received b" wa" of indemnit". The interest on the indemnit"
shall be deemed to be in pa"ment of rent for the use of the
easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
,n both cases% the public highwa" must substantiall" meet
the needs of the dominant estate in order that the easement ma"
be e-tinguished.
Art. 656. ,f it be indispensable for the construction% repair%
improvement% alteration or beautification of a building% to carr"
materials through the estate of another% or to raise therein
scaffolding or other objects necessar" for the work% the owner of
such estate shall be obliged to permit the act% after receiving
pa"ment of the proper indemnit" for the damage caused him.
Art. 657. 9asements of the right of wa" for the passage of
livestock known as animal path% animal trail or an" other% and
those for watering places% resting places and animal folds% shall be
governed b" the ordinances and regulations relating thereto% and%
in the absence thereof% b" the usages and customs of the place.
0ithout prejudice to rights legall" ac.uired% the animal path
shall not e-ceed in an" case the width of B) meters% and the animal
trail that of 7B meters and )E centimeters.
0henever it is necessar" to establish a compulsor" easement
of the right of wa" or for a watering place for animals% the
provisions of this ?ection and those of articles A<E and A<' shall be
observed. ,n this case the width shall not e-ceed 'E meters.
,e-uisites #or an /asement o# ,ight o# "ay
a. The dominant estate is surrounded by other immovables without an
ade-uate outlet to a public highway
The right o# way may be demanded9
i. "hen there is absolutely no access to a public highway
ii. "hen, even i# there is one, it is di##icult or dangerous to use,
or is grossly insu##icient :i.e. access is through a steep cli##;
Bere inconvenience is not aground #or demanding the easement
o# right o# way :i.e. there is an ade-uate outlet, but it is not
paved;
b. The dominant estate is willing to pay the proper indemnity
7# the right o# way is permanent, payment shall be e-uivalent to
the value o# the land occupied and the amount o# the damage
caused to the servient estate.
Professor Ruben F. Balane Pa)e .*, of +,-
.uch payment #or permanent use does not mean that the owner
o# the dominant estate now owns such portion o# the land.
7# a piece o# land is ac-uired by sale, e'change, partition or
partition, and the land is surrounded by other estates o# the
vendor, e'changer or co2owner, a right o# way shall be given
without having to pay the indemnity :&rticle 432;
7# it is the land o# the vendor, e'changer or co2owner that
becomes isolated, he may demand a right o# way, provided that
he pay the proper indemnity :&rticle 43;
7# a piece o# land is ac-uired by donation, and such land is
surrounded by other estates o# the donor, the donee must pay
the proper indemnity in order to get a right o# way :&rticle 432;.
7# it is the land o# the donor that becomes isolated, he may
demand a right o# way without having to pay the indemnity
:&rticle 43;.
c. The isolation was not due to the acts o# the proprietor o# the
dominant estate
7n &rticle 4$E, it states that the isolation must not be due to the
act o# the proprietor o# the dominant estate. Het, in &rticle 43,
the proprietor o# the dominant estate may demand an easement
o# right o# way even though the isolation was caused by his act.
7s there a con#lict between &rticle 4$E and &rticle 43( To
reconcile, &rticle 43 deals with a speci#ic instance.
d. That the right o# way claimed is at the point least pre)udicial to the
servient estate% and inso#ar as consistent with this rule, where the
distance #rom the dominant estate to a public highway may be the
shortest.
/'tinguishment o# /asements o# ,ight o# "ay :&rticle 433;
The #act that an ade-uate outlet has been created does not
automatically e'tinguish the a legal easement o# right o# way. 7t
must be as+ed #or by the owner o# the servient estate.
The owner o# the dominant estate cannot demand that the
easement be e'tinguished.
&rticle 433 is applicable only to legal easements o# right o# way. 7t
does not apply to voluntary easements o# right o# way.
. Part" wall :&rticles 43D2444;
Art. 658. The easement of part" wall shall be governed b"
the provisions of this Title% b" the local ordinances and customs
insofar as the" do not conflict with the same% and b" the rules of
co/ownership.
Art. 659. The e-istence of an easement of part" wall is
presumed% unless there is a title% or e-terior sign% or proof to the
contrar"+
5'6 ,n dividing walls of adjoining buildings up to the point of
common elevation3
546 ,n dividing walls of gardens or "ards situated in cities%
towns% or in rural communities3
576 ,n fences% walls and live hedges dividing rural lands.
Art. 660. ,t is understood that there is an e-terior sign%
contrar" to the easement of part" wall+
5'6 0henever in the dividing wall of buildings there is a
window or opening3
546 0henever the dividing wall is% on one side% straight and
plumb on all its facement% and on the other% it has similar
conditions on the upper part% but the lower part slants or
projects outward3
576 0henever the entire wall is built within the boundaries of
one of the estates3
5<6 0henever the dividing wall bears the burden of the binding
beams% floors and roof frame of one of the buildings% but
not those of the others3
5)6 0henever the dividing wall between court"ards% gardens%
and tenements is constructed in such a wa" that the coping
sheds the water upon onl" one of the estates3
5A6 0henever the dividing wall% being built of masonr"% has
stepping stones% which at certain intervals project from the
surface on one side onl"% but not on the other3
5B6 0henever lands inclosed b" fences or live hedges adjoin
others which are not inclosed.
,n all these cases% the ownership of the walls% fences or
hedges shall be deemed to belong e-clusivel" to the owner of the
propert" or tenement which has in its favor the presumption based
on an" one of these signs.
Art. 661. Ditches or drains opened between two estates are
also presumed as common to both% if there is no title or sign
showing the contrar".
There is a sign contrar" to the part/ownership whenever the
earth or dirt removed to open the ditch or to clean it is onl" on one
side thereof% in which case the ownership of the ditch shall belong
e-clusivel" to the owner of the land having this e-terior sign in its
favor.
Art. 662. The cost of repairs and construction of part" walls
and the maintenance of fences% live hedges% ditches% and drains
owned in common% shall be borne b" all the owners of the lands or
tenements having the part" wall in their favor% in proportion to the
right of each.
2evertheless% an" owner ma" e-empt himself from
contributing to this charge b" renouncing his part/ownership%
e-cept when the part" wall supports a building belonging to him.
Art. 663. ,f the owner of a building% supported b" a part"
wall desires to demolish the building% he ma" also renounce his
part/ownership of the wall% but the cost of all repairs and work
necessar" to prevent an" damage which the demolition ma" cause
to the part" wall% on this occasion onl"% shall be borne b" him.
Art. 664. 9ver" owner ma" increase the height of the part"
wall% doing at his own e-pense and pa"ing for an" damage which
ma" be caused b" the work% even though such damage be
temporar".
The e-penses of maintaining the wall in the part newl"
raised or deepened at its foundation shall also be paid for b" him3
and% in addition% the indemnit" for the increased e-penses which
ma" be necessar" for the preservation of the part" wall b" reason
of the greater height or depth which has been given it.
,f the part" wall cannot bear the increased height% the owner
desiring to raise it shall be obliged to reconstruct it at his own
e-pense and% if for this purpose it be necessar" to make it thicker%
he shall give the space re.uired from his own land.
Art. 665. The other owners who have not contributed in
giving increased height% depth or thickness to the wall ma"%
nevertheless% ac.uire the right of part/ownership therein% b"
pa"ing proportionall" the value of the work at the time of the
ac.uisition and of the land used for its increased thickness.
Art. 666. 9ver" part/owner of a part" wall ma" use it in
proportion to the right he ma" have in the co/ownership% without
interfering with the common and respective uses b" the other co/
owners.
& party wall is a common wall built along the dividing line o# 2 ad)oining
estates.
Nature o# a Aarty "all
a. /asement
Banresa and Castan believe that a party wall is predominantly
an easement.
b. Co2ownership :i.e. &rticle 444;
.anche6 ,oman believes that a party wall is predominantly a co2
ownership
.pecial Characteristics o# a Aarty "all as Co20wnership
i. This co2ownership is indivisible
Cannot physically divide
ii. The parts pertaining to each co2owner can be materially
designated and yet the whole wall is co2owned
iii. The rights o# a co2owner o# a party wall are greater than an
ordinary co2owner
Baintenance and ,epair o# Aarty "all :&rticle 442;
General *ule+ The e'pense #or the repair and maintenance o# the
party wall shall be shouldered by the co2owners in proportion to the
right o# each.
Presumption+ Co2owners have e-ual proportion :share e-ually in
the e'penses;.
Exceptions:
a. The e'pense #or the repair o# the party wall can be shouldered
by 1 co2owner, but the co2owner who does not contribute must
renounce his share in the party wall.
Commentators are o# di##erent opinions regarding the e'tent
o# the renunciation < total or proportional to the amount o#
repairs.
b. "hen the de#ects are caused by 1 owner, he shall pay #or all the
e'penses #or repair
7# the damage was due to the #ault o# one owner
Aresumption o# Aarty "all
& party wall is presumed when a wall divides
a. &d)oining buildings
b. 5ardens or yards situated in cities, towns or in rural
communities
c. ,ural lands
This presumption may be rebutted i# there is a contrary
a. Title% or
b. /'terior sign or
The #ollowing are e'terior signs which will be rebut the
presumption
i. & window or opening in the dividing wall
ii. 0n 1 side, the wall is straight and then the wall )uts out
& buttress is placed part where the wall )uts out. This
is done in order to prevent the neighbor #rom
invading his property.
Professor Ruben F. Balane Pa)e .*- of +,-
iii. The entire wall is built within the boundary o# 1 o# the
estates :not along the boundary o# the 2 estates;
iv. "hen the wall supports the building o# 1 estate but not
the other
v. "hen the dividing wall between the courtyards, gardens,
and tenements is constructed in such a way that the
coping sheds the water upon only 1 o# the estates
vi. .tepping stones only on 1 side o# the wall
vii. "hen 1 estate is enclosed but the other is not
Commentators do not agree as to whether or not this
enumeration is e'clusive.
c. Aroo#
$. !ight and view :&rticles 44C24C;
Art. 667. 2o part/owner ma"% without the consent of the
others% open through the part" wall an" window or aperture of an"
kind.
Art. 668. The period of prescription for the ac.uisition of an
easement of light and view shall be counted+
5'6 @rom the time of the opening of the window% if it is through
a part" wall3 or
546 @rom the time of the formal prohibition upon the proprietor
of the adjoining land or tenement% if the window is through
a wall on the dominant estate.
Art. 669. 0hen the distances in article ABE are not observed%
the owner of a wall which is not part" wall% adjoining a tenement or
piece of land belonging to another% can make in it openings to
admit light at the height of the ceiling joints or immediatel" under
the ceiling% and of the si$e of thirt" centimeters s.uare% and% in
ever" case% with an iron grating imbedded in the wall and with a
wire screen.
2evertheless% the owner of the tenement or propert"
adjoining the wall in which the openings are made can close them
should he ac.uire part/ownership thereof% if there be no stipulation
to the contrar".
8e can also obstruct them b" constructing a building on his
land or b" raising a wall thereon contiguous to that having such
openings% unless an easement of light has been ac.uired.
Art. 670. 2o windows% apertures% balconies% or other similar
projections which afford a direct view upon or towards an adjoining
land or tenement can be made% without leaving a distance of two
meters between the wall in which the" are made and such
contiguous propert".
2either can side or obli.ue views upon or towards such
conterminous propert" be had% unless there be a distance of si-t"
centimeters.
Professor Ruben F. Balane Pa)e ..4 of +,-
The nonobservance of these distances does not give rise to
prescription.
Art. 671. The distance referred to in the preceding article
shall be measured in cases of direct views from the outer line of the
wall when the openings do not project% from the outer line of the
latter when the" do% and in cases of obli.ue view from the dividing
line between the two properties.
Art. 672. The provisions of article ABE are not applicable to
buildings separated b" a public wa" or alle"% which is not less than
three meters wide% subject to special regulations and local
ordinances.
Art. 673. 0henever b" an" title a right has been ac.uired to
have direct views% balconies or belvederes overlooking an adjoining
propert"% the owner of the servient estate cannot build thereon at
less than a distance of three meters to be measured in the manner
provided in article AB'. An" stipulation permitting distances less
than those prescribed in article ABE is void.
2 *i##erent /asements
1. /asement o# light :luminis)
The easement o# light is the right to ma+e an opening not
greater than 1 centimeters s-uare and to receive light #rom
anothers tenement.
The opening must be made on the ceiling or i# on the wall, there
must be an iron grating :so you cant loo+ out, otherwise, it
becomes an easement o# light and view;.
No minimum distance re-uired.
2. /asement o# light and view :luminis et prospectus;
The easement o# light and view is the right to open windows and
apertures and to bar the owner o# the servient estate to bloc+
the view.
The easement o# view necessarily carries with it the easement o#
light.
*irect View9 There must be a minimum distance o# 2 meters
#rom the wall o# the opening and the contiguous property.
0bli-ue View9 There must be a minimum distance o# 41
centimeters #rom the wall o# the opening and the contiguous
property.
Non2observance o# the minimum distances will not create an
easement.
The owner o# the servient estate cannot build within meters
#rom the boundary between the servient and the dominant
estate. Thus, there is 3 meters between the wall o# the opening
and any structure o# the servient estate.
The obligation not to build higher accompanies the easements o#
light and view.
Professor Ruben F. Balane Pa)e ..* of +,-
&c-uiring by Arescription
a. .tart counting #rom the 1
st
easement was per#ormed < i# the opening through which the light
and view passes is a party wall.
*ationale+ 7# the neighbor does not li+e the opening, he can
always close it.
b. .tart counting #rom the time when the owner o# the dominant
estate serves a notarial prohibition on the owner o# the prospective
servient estate < i# the opening is made on the dominant owners
own wall.
,ationale9 The neighbor cannot close the opening since its
in the dominant owners property.
@. ,t"er 5o<*alle+ :e/al Easeents :Not .trictly .pea+ing 8egal /asements;
1. Drainage of buildings :&rticles 4C$24C4;
Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain water
shall fall on his own land or on a street or public place% and not on
the land of his neighbor% even though the adjacent land ma" belong
to two or more persons% one of whom is the owner of the roof. 9ven
if it should fall on his own land% the owner shall be obliged to
collect the water in such a wa" as not to cause damage to the
adjacent land or tenement.
Art. 675. The owner of a tenement or a piece of land% subject
to the easement of receiving water falling from roofs% ma" build in
such manner as to receive the water upon his own roof or give it
another outlet in accordance with local ordinances or customs% and
in such a wa" as not to cause an" nuisance or damage whatever to
the dominant estate.
Art. 676. 0henever the "ard or court of a house is
surrounded b" other houses% and it is not possible to give an outlet
through the house itself to the rain water collected thereon% the
establishment of an easement of drainage can be demanded% giving
an outlet to the water at the point of the contiguous lands or
tenements where its egress ma" be easiest% and establishing a
conduit for the drainage in such manner as to cause the least
damage to the servient estate% after pa"ment of the propert"
indemnit".
This is not really an easement. ,ather, it is a limitation o# the right o#
ownership.
Professor Ruben F. Balane Pa)e ... of +,-
2. ,ntermediate distances :&rticles 4CC24D1;
Art. 677. 2o constructions can be built or plantings made
near fortified places or fortresses without compliance with the
conditions re.uired in special laws% ordinances% and regulations
relating thereto.
Art. 678. 2o person shall build an" a.ueduct% well% sewer%
furnace% forge% chimne"% stable% depositor" of corrosive substances%
machiner"% or factor" which b" reason of its nature or products is
dangerous or no-ious% without observing the distances prescribed
b" the regulations and customs of the place% and without making
the necessar" protective works% subject% in regard to the manner
thereof% to the conditions prescribed b" such regulations. These
prohibitions cannot be altered or renounced b" stipulation on the
part of the adjoining proprietors.
,n the absence of regulations% such precautions shall be
taken as ma" be considered necessar"% in order to avoid an"
damage to the neighboring lands or tenements.
Art. 679. 2o trees shall be planted near a tenement or piece
of land belonging to another e-cept at the distance authori$ed b"
the ordinances or customs of the place% and% in the absence thereof%
at a distance of at least two meters from the dividing line of the
estates if tall trees are planted and at a distance of at least fift"
centimeters if shrubs or small trees are planted.
9ver" landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or tenement
be uprooted.
The provisions of this article also appl" to trees which have
grown spontaneousl".
Art. 680. ,f the branches of an" tree should e-tend over a
neighboring estate% tenement% garden or "ard% the owner of the
latter shall have the right to demand that the" be cut off insofar as
the" ma" spread over his propert"% and% if it be the roots of a
neighboring tree which should penetrate into the land of another%
the latter ma" cut them off himself within his propert".
Art. 681. @ruits naturall" falling upon adjacent land belong
to the owner of said land.
&gain, this is a limitation o# ownership and not an easement.
This is basically 6oning which can be modi#ied by laws and ordinances.
. 9asement against nuisances :&rticles 4D224D;
Art. 682. 9ver" 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.
Professor Ruben F. Balane Pa)e ..+ of +,-
Art. 683. ?ubject to $oning% health% police and other laws
and regulations% factories and shops ma" be maintained provided
the least possible anno"ance is caused to the neighborhood.
This is also a limitation o# ownership and not an easement.
Nuisance is any act, omission, establishment, condition, property or
anything else which :&rticle 4E$;9
a. 7n)ures or endangers the health or sa#ety o# others% or
b. &nnoys or o##ends the senses% or
c. .hoc+s, de#ies or disregards decency or morality% or
d. 0bstructs or inter#eres with the #ree passage o# any public highway
or streets, or any body o# water% or
e. >inders or impairs the use o# property.
$. !ateral and subjacent support :&rticles 4D$24DC;
5ec. 684. 2o proprietor shall make such e-cavations upon
his land as to deprive an" adjacent land or building of sufficient
lateral or subjacent support.
Art. 685. An" stipulation or testamentar" provision allowing
e-cavations that cause danger to an adjacent land or building shall
be void.
Art. 686. The legal easement of lateral and subjacent
support is not onl" for buildings standing at the time the
e-cavations are made but also for constructions that ma" be
erected.
Art. 687. An" proprietor intending to make an" e-cavation
contemplated in the three preceding articles shall notif" all owners
of adjacent lands.
7n lateral support, there is an obligation to see to it that the structures
on your neighbors land will not collapse #rom your lands lac+ o#
support.
7n sub)acent support, the owner o# the sur#ace and the sub2sur#ace are
di##erent.
G. =oluntar" 9asements
0ne can create voluntary easements in #avor o# another immovable or
persons on ones property.
7n La >ista vs. ;A, the easement o# right o# way was not a legal easement
but was created because o# a contract. .ince it was created by a contract,
the re-uisites #or a right o# way under &rts. 4$E and 431 need not be
#ollowed.
Professor Ruben F. Balane Pa)e ../ of +,-
#IFFERENT $"#ES "F AC?(IRING "NERSHIP
Bode is the speci#ic cause which gives rise to ownership, as the result o# the
presence o# a special condition o# things, o# the aptitude and intent o# persons,
and o# compliance with the conditions established by law.
Title is that which gives )uridical )usti#ication #or a mode because it produces the
cause #or the ac-uisition o# ownership.
Bodes arise #rom title.
7n a contract o# sale, the ownership is trans#erred not because o# the contract o#
sale but by tradition :delivery;.
The modern trend however is to do away with the distinction between mode and
title.
,. 7 T"pes of ;odes
1. ,ri/inal 0o+e
7n an original mode, ownership is not ac-uired #rom an immediately
preceding owner. 7t does not however mean that the ob)ect was not
owned be#ore. For e'ample, i# someone catches #ish, it does not
necessarily mean that person was the #irst one to catch it :occupation;.
7ntellectual creation, occupation
2. Deri(ati(e 0o+e
7n a derivative mode, ownership is based on a right previously held by
another person.
8aw, tradition, donation, succession
. 0ixe+ 0o+e
&
rd
mode was created since prescription could not be classi#ied as original
or derivative.
Arescription
,,. ;odes of Ac.uiring #wnership
A. 3ntellectual creation
7ntellectual creation is now governed by the 7ntellectual Aroperty Code and
the T,7A. &greement.
G. ,ccupation
For occupation to occur, the ob)ect must be appropriable by nature :&rticle
C1
@
;.
0ccupation regarding animals happens by hunting or #ishing. The
ac-uisition o# animals can be regulated by law :i.e. dynamite #ishing;.
The ownership o# a piece o# land cannot be ac-uired by occupation :&rticle
C1$;. This is based on the ,egalian *octrine. !nder the ,egalian doctrine,
one cannot ac-uire land unless it was granted by the .tate or by its prior
owner.
*
Art. 1)(. Things appropriable by nature which are without an owner, such as animals that are
the ob)ect o# hunting and #ishing, hidden treasure and abandoned movables, are ac-uired by
occupation.
Professor Ruben F. Balane Pa)e .., of +,-
!nder the ,egalian *octrine, there is no such thing as land which is res
nullius.
7# the state grants the land to T. T abandons the land. "hat happens to
the land( There is no speci#ic provision. Aaras thin+s that the land goes
bac+ to the state.
!nder &rticle C14
, the periods o# 2 :#or bees; and 21 days :#or

domesticated animals; are not periods o# prescription. ,ather, these days
are conditions #or the ac-uisition by occupation
There is a di##erence between domesticated animals and domestic animals.
*omesticated animals are by nature wild animals but have been tamed <
possess the habit o# returning to the premises o# the possessor :&rticle
341
;. 0n the other hand, a domestic animal is treated li+e any other

personal property. 7t cannot be ac-uired by the occupation since it is
owned unless the owner abandons the animal.
*omestic animals are governed by &rticle 33E
.
&rticle C1E
provides the procedure when one #inds a lost movable which is

not a treasure.
C. :a;
Aro'imately, law is 1 o# the C modes o# ac-uiring ownership.
!ltimately, law is the only source o# ownership.
The provisions regarding law as a mode o# ac-uiring ownership is scattered
throughout the Civil Code :i.e. &rticles 4D1, 1$$, 1$34
;.
_
Art. 1)&. The owner o# a swarm o# bees shall have a right to pursue them to anotherGs land,
indemni#ying the possessor o# the latter #or the damage. 7# the owner has not pursued the
swarm, or ceases to do so within two consecutive days, the possessor o# the land may occupy
or retain the same. The owner o# domesticated animals may also claim them within twenty
days to be counted #rom their occupation by another person. This period having e'pired, they
shall pertain to him who has caught and +ept them.
_
Art. $&0. "ild animals are possessed only while they are under oneGs control%
domesticated or tamed animals are considered domestic or tame i# they retain the habit o#
returning to the premises o# the possessor.
_
Art. $$2. The possession o# movable property ac-uired in good #aith is e-uivalent to a title.
Nevertheless, one who has lost any movable or has been unlaw#ully deprived thereo# may
recover it #rom the person in possession o# the same.
7# the possessor o# a movable lost or which the owner has been unlaw#ully deprived,
has ac-uired it in good #aith at a public sale, the owner cannot obtain its return without
reimbursing the price paid there#or.
_
Art. 1)2. "hoever #inds a movable, which is not treasure, must return it to its previous
possessor. 7# the latter is un+nown, the #inder shall immediately deposit it with the mayor o#
the city or municipality where the #inding has ta+en place.
The #inding shall be publicly announced by the mayor #or two consecutive wee+s in the
way he deems best.
7# the movable cannot be +ept without deterioration, or without e'penses which
considerably diminish its value, it shall be sold at public auction eight days a#ter the publication.
.i' months #rom the publication having elapsed without the owner having appeared, the thing
#ound, or its value, shall be awarded to the #inder. The #inder and the owner shall be obliged, as
the case may be, to reimburse the e'penses.
Art. &/). Fruits naturally #alling upon ad)acent land belong to the owner o# said land.
Art. )*(*. "hen a person who is not the owner o# a thing sells or alienates and
delivers it, and later the seller or grantor ac-uires title thereto, such title passes by operation o#
D. 7ra+ition :&rticles 1$E421311;
Art. 1496. The ownership of the thing sold is ac.uired b" the
vendee from the moment it is delivered to him in an" of the wa"s
specified in articles '<DB to ')E'% or in an" other manner signif"ing an
agreement that the possession is transferred from the vendor to the
vendee.
Art. 1497. The thing sold shall be understood as delivered%
when it is placed in the control and possession of the vendee.
Art. 1498. 0hen the sale is made through a public instrument%
the e-ecution thereof shall be e.uivalent to the deliver" of the thing
which is the object of the contract% if from the deed the contrar" does
not appear or cannot clearl" be inferred.
0ith regard to movable propert"% its deliver" ma" also be made
b" the deliver" of the ke"s of the place or depositor" where it is stored
or kept.
Art. 1499. The deliver" of movable propert" ma" likewise be
made b" the mere consent or agreement of the contracting parties% if
the thing sold cannot be transferred to the possession of the vendee at
the time of the sale% or if the latter alread" had it in his possession for
an" other reason.
Art. 1500. There ma" also be tradition constitutu
possessoriu.
Art. 1501. 0ith respect to incorporeal propert"% the provisions
of the first paragraph of article '<DC shall govern. ,n an" other case
wherein said provisions are not applicable% the placing of the titles of
ownership in the possession of the vendee or the use b" the vendee of
his rights% with the vendor:s consent% shall be understood as a
deliver".
Tradition comes #rom the latin word tradere which means to deliver.
Tradition is a mode o# ac-uiring ownership as a conse-uence o# certain
contracts such as sale by virtue o# which, actually or constructively, the
ob)ect is placed in the control and possession o# the trans#eree.
law to the buyer or grantee.
Art. )*$&. 7# property is ac-uired through mista+e or #raud, the person obtaining it is,
by #orce o# law, considered a trustee o# an implied trust #or the bene#it o# the person #rom
whom the property comes.
Iinds o# Tradition
1. *eal or material < physical delivery :&rticle 1$EC;
2. )in/i+a < constructive
a. 5i'olica :&rticle 1$ED;
,e-uisites
i. Trans#eror must have control o# the thing
The trans#eror must have actual possession
ii. Trans#eree must be put in control
iii. There must be intent to trans#er
7n Aviles vs. Arcega, a very controversial decision, the &lcantara
sold the house to &viles as evidenced by a document
ac+nowledged be#ore a notary public. The document stated that
&lcantara would continue to possess the house #or $ months.
&viles never too+ possession o# the property even a#ter the lapse
o# $ months. &lcantara sold the house to &rcega. The .C said
that &viles cannot invo+e symbolic delivery as this was
prevented by e'press stipulation < that &lcantara would continue
in possession. The #act that $ months had lapsed does not
mean that there was symbolic delivery since there is no law
providing that is should ta+e place a#ter the e'ecution o# the
document where there is stipulation to the contrary.
This case is controversial since those who dissented are the $
civil law e'perts.
7raditio clarium is part o# tradicion sim5olica. 7raditio clarium is
applicable only to personal property :i.e. +eys;. 7n =anco
Filipino vs. Aeterson, the goods in the warehouse were delivered
when the +eys to the warehouse were given.
b. :on/a anu :&rticles 1$E4 and 1$EE, 1
st
part;
Longa manu means long hand. 8iterally this means hat the
trans#er o# ownership is done by pointing out. For e'ample, the
ownership o# the car is trans#erred by pointing to the speci#ic
car.
7n longa manu, mere agreement is not enough. There must be
an accompanying sign or gesture :&rticle 1$EE;.
c. =re(i anu :&rticle 1$EE;
-revi manu means short hand.
-revi manu occurs when the trans#eree was already in
possession be#ore he had ac-uired ownership. For e'ample, the
lessee is renting the house. The lessor sells the house to the
lessee.
d. *onstitutu possessoriu :&rticle 1311;
;onstitutum possessorium is the opposite o# 5revi manu. 7n this
case, the trans#eror already in possession and continues to be in
possession under a di##erent capacity a#ter ownership had been
trans#erred.
For e'ample, & owns a house. & sells the house to =. & then
leases the house to =.
. Nuasi/tradition :cuasi tradicion;
Quasi2tradition re#ers to the delivery o# incorporeal property.
For e'ample, shares o# stoc+ cannot be physically trans#erred.
"hat is delivered are the stoc+ certi#icates. The endorsement o# the
stoc+ certi#icate is delivery by -uasi2tradition.
>owever, in 7a5lante vs. A=uino, the .C applied -uasi2tradition to
tangible property. &ccording to Aro#essor =alane, this is wrong. 7t
should be tradicion sim5olica.
$. G" operation of law :por ministerio de la le8;
.uccession should not be included here since succession is an
independent mode o# ac-uiring ownership. 7t is not part o#
tradition.
9. Donation
*onation is an act o# liberality whereby a person disposes gratuitously o# a
thing or right in #avor o# another, who accepts it :&rticle C23;.
&ccording to Aro#essor =alane, the de#inition o# a donation in &rticle C23 is
wrong. & donation is not an act. 7t is a contract.
1. @eatures of donation
a. ,eduction o# the donors patrimony
b. /nhancement or increase o# the donees patrimony
c. Animus donandi 22 intent to do an act o# liberality
2. Classification of donations
a. 3nter (i(os < the e##ectivity o# the donation does not depend upon the
donors death
i. Pure or simple :&rticle C23
;
5ratuitous
ii. Remunerator8 :&rticle C24
;
The donation is made on account o# the donees merits.
For e'ample, a parcel o# land is given to 8 since 8 is the most
outstanding student in law or out o# gratitude #or saving another
persons li#e.
iii. ;onditional or modal :&rticles C24, C
;
& conditional or modal donation imposes upon the donee a
burden which is less than the value o# the thing donated.
`
Art. 1%$. *onation is an act o# liberality whereby a person disposes gratuitously o# a thing or
right in #avor o# another, who accepts it.
`
Art. 1%&. "hen a person gives to another a thing or right on account o# the latterGs merits or
o# the services rendered by him to the donor, provided they do not constitute a demandable
debt, or when the gi#t imposes upon the donee a burden which is less than the value o# the
thing given, there is also a donation.
Art. 1((. *onations with an onerous cause shall be governed by the rules on contracts
and remuneratory donations by the provisions o# the present Title as regards that portion which
e'ceeds the value o# the burden imposed.
Professor Ruben F. Balane Pa)e ..- of +,-
For e'ample, T donates land worth A21,111,111. >owever, T
must support the donors mother < A2,111,111. The value o#
the donation is A1D,111,111.
The more accurate term is not conditional but modal.
Bodal donations are not pure acts o# liberality since a mode is
imposed.
&rticle C is inaccurate. &rticle C mentions remuneratory
donations. This should be replaced by the word OmodalP.
iv. .nerous :&rticle C;
This is a donation in name only.
&n onerous donation is a contradiction in terms.
b. 0ortis causa 2 the e##ectivity o# the donation depends upon the
donors death
The provisions on donation mortis causa are dead letter because
donations mortis causa are governed by the provisions o#
testamentary succession which is another mode o# ac-uiring
ownership.
& donates to = a parcel o# land on the condition that = passes the
=ar o# 2111. 0n the eve o# the bar e'am, & dies. = passes the bar
months a#ter the death o# &. This is a donation inter vivos since the
cause #or the donation is passing the bar. The test to determine
whether or not it is inter vivos or mortis causa is the causal
connection.
. @orm re.uired
Form determines the validity o# the donation. *onations are one o# the
#ew transactions le#t in which #orm determines validity. Bost
transactions are consensual, the intent determining validity.
a. 0o(a'les :&rticle C$D;
Art. 748. The donation of a movable ma" be made orall"
or in writing.
An oral donation re.uires the simultaneous deliver" of the
thing or of the document representing the right donated.
,f the value of the personal propert" donated e-ceeds five
thousand pesos% the donation and the acceptance shall be made
in writing% otherwise% the donation shall be void.
7# the donation is worth A3,111 or less, the donation can be made
orally. >owever, the oral donation must be accompanied by the
simultaneous delivery o# the movable or o# the document
representing the right donated. "ithout delivery, the donation is no
good.
7# the value o# the donation e'ceeds A3,111, the donation and the
acceptance must be in writing.
The writing may be in a public or in a private instrument.
b. 3o(a'les :&rticle C$E;
Professor Ruben F. Balane Pa)e .+4 of +,-
Art. 749. ,n order that the donation of an immovable ma"
be valid% it must be made in a public document% specif"ing
therein the propert" donated and the value of the charges which
the donee must satisf".
The acceptance ma" be made in the same deed of
donation or in a separate public document% but it shall not take
effect unless it is done during the lifetime of the donor.
,f the acceptance is made in a separate instrument% the
donor shall be notified thereof in an authentic form% and this
step shall be noted in both instruments.
The donation must be in a public instrument.
The acceptance must either be in the same public instrument or in a
di##erent public instrument.
&cceptance shall not ta+e e##ect unless it is done during the li#etime
o# the donor.
7# the acceptance is made in a separate public instrument, the donor
shall be noti#ied thereo# in an authentic #orm, and this step shall be
noted in both instruments.
$. Distinction between inter (i(os and ortis causa
& donation mortis causa is always revocable. Thus, i# the donation is
designated as irrevocable or is revocable only #or certain grounds or
causes, then the donation is inter vivos.
7n a donation inter vivos, the property passes #rom the donor to the
donee :ownership;. 7# the donor reserves the right o# ownership, then
the donation is mortis causa.
& stipulation giving the donor the power to alienate the property i#
the donor needs money < donation inter vivos. 7n this case, the
right to alienate is limited.
,.7E: The reservation must pertain to a reservation o# the ownership
and N0T the #ruits.
7# the donor reserves the power to alienate, then the donor reserves the
right o# ownership. 7t is a donation mortis causa. 7# the donor reserves
the right to alienate only #or certain grounds and causes, then it means
that the donor has practically lost the right to alienate it. "hich means,
the donor has practically lost his right o# ownership. This is a donation
inter vivos.
& stipulation stating that the donee cannot alienate without the donors
consent < donation mortis causa. 7n this case, the donor e##ectively has
the power to alienate. The donee will always needs the consent o# the
donor.
Professor Ruben F. Balane Pa)e .+* of +,-
3. !imitations
a. 9"o a! Donate
& donor must have capacity to act :i.e. age o# ma)ority, no civil
interdiction or other incapacity, etc.; < &rticle C3.
Art. 735. All persons who ma" contract and dispose of
their propert" ma" make a donation.
The donor must have capacity at the time the donation is made.
The donation is per#ected #rom the moment the donor +nows o# the
acceptance by the donee :&rticle C$; < cognition theory
Art. 734. The donation is perfected from the moment
the donor knows of the acceptance b" the donee.
!nder the cognition theory, the contract is per#ected upon the
donors learning o# the donees acceptance. 7t is not per#ected when
the donee simply mani#ests his acceptance < the mani#estation
theory. Inowledge by the donor is crucial.
7n order #or the donation to be per#ected, the donor must have
+nowledge o# the donees acceptance. Thus, the donor must be
alive and must have capacity at the time he learns o# the donees
acceptance.
b. 9"o a! 'e a Donee
&ll those who are not speci#ically dis-uali#ied by law may accept
donations :&rticle CD;.
c. @oi+ Donations
The #ollowing are void donations9
i. 7#ose made 5et4een persons 4#o 4ere guilt8 o! adulter8 or
concu5inage at t#e time o! t#e donation :&rticle CE :1;;
Conviction is not necessary.
The donation shall not be void i# the donee did not +now o#
the donors e'isting marriage.
ii. 7#ose made 5et4een persons !ound guilt8 o! t#e same criminal
o!!ense in consideration t#ereo! :&rticle CE :2;;
&ggravating circumstance o# price, promise or reward
iii. 7#ose made to a pu5lic o!!icer or #is 4i!e descendants and
ascendants 58 reason o! #is o!!ice :&rticle CE :;;
iv. Donations made 58 guardians and trustees o! propert8 entrusted
to t#em :&rticle C4;
7n Araneta vs. Perez, the owner o# the land had a trustee.
The land was being developed into a subdivision. The
trustee donated with the courts consent to the 85! a portion
o# the land to be used as a street. The donation to the 85!
was being challenged on the basis o# &rticle C4. The .C
said that &rticle C4 contemplates donations which are pure.
7n this case, the donation to the 85! was not a pure
Professor Ruben F. Balane Pa)e .+. of +,-
donation. The donation was necessary to develop the
subdivision.
d. The donation should not be ino##icious
e. The donation should not pre)udice creditors
#. The donation should not impair support #or the donor and his #amily
g. *onations cannot comprehend #uture property :&rticle C31;
Art. 751. Donations cannot comprehend future propert".
G" future propert" is understood an"thing which the
donor cannot dispose of at the time of the donation.
4. *eduction and revocation
a. 7"e +onation s"oul+ not 'e ino..icious :&rticle C32;
Art. 752. The provisions of article B)E notwithstanding%
no person ma" give or receive% b" wa" of donation% more than
he ma" give or receive b" will.
The donation shall be inofficious in all that it ma" e-ceed
this limitation.
& donation is ino##icious i# it impairs the legitime.
&n ino##icious donation will be reduced in so #ar as it e'ceeds what
the donor could have given by will to the donee < the #ree portion.
"hether a donation is ino##icious or not can only be determined at
the time o# the death o# the donor.
The heirs o# the donor have 11 years #rom the death o# the donor to
revo+e or reduce the donation (Imperial vs. ;A).
7# there is a subse-uent appearance or birth o# a child and his
legitime is impaired because o# a donation, the donation may be
revo+ed or reduced to the e'tent that his legitime is pre)udiced
:&rticles C41 and C41;.
Art. 760. 9ver" donation inter (i(os% made b" a person
having no children or descendants% legitimate or legitimated
b" subse.uent marriage% or illegitimate% ma" be revoked or
reduced as provided in the ne-t article% b" the happening of
an" of these events+
5'6 ,f the donor% after the donation% should have
legitimate or legitimated or illegitimate children%
even though the" be posthumous3
546 ,f the child of the donor% whom the latter believed to
be dead when he made the donation% should turn out
to be living3
576 ,f the donor subse.uentl" adopt a minor child.
Art. 761. ,n the cases referred to in the preceding
article% the donation shall be revoked or reduced insofar as it
e-ceeds the portion that ma" be freel" disposed of b" will%
taking into account the whole estate of the donor at the time
of the birth% appearance or adoption of a child.
Professor Ruben F. Balane Pa)e .++ of +,-
7n the case o# the subse-uent appearance or birth o# a child, the
action to revo+e or reduce the donation shall prescribe a#ter $ years
#rom the birth o# the child, or #rom his legitimation, recognition or
adoption or #rom the )udicial decree o# #iliation, or #rom the time the
in#ormation was received regarding the e'istence o# the child
believed dead. This action cannot be renounced, and is transmitted
upon the death o# the donor, to his legitimate and illegitimate
children and descendants :&rticle C4;.
b. 7"e +onation s"oul+ not pre6u+ice cre+itors :&rticle C3E;
Art. 759. There being no stipulation regarding the
pa"ment of debts% the donee shall be responsible therefor onl"
when the donation has been made in fraud of creditors.
The donation is alwa"s presumed to be in fraud of
creditors% when at the time thereof the donor did not reserve
sufficient propert" to pa" his debts prior to the donation.
7# the donor does not have enough properties reserved to pay o## his
creditors, the creditors have $ years #rom the +nowledge o# the
donation to rescind the donation < accion pauliana :&rticles 1D1
:;, 1DC and 1DE
;
c. 7"e +onation ust not ipair t"e support .or t"e +onor or "is
relati(es :&rticle C31;
Art. 750. The donations ma" comprehend all the present
propert" of the donor% or part thereof% provided he reserves% in
full ownership or in usufruct% sufficient means for the support of
himself% and of all relatives who% at the time of the acceptance
of the donation% are b" law entitled to be supported b" the
donor. 0ithout such reservation% the donation shall be reduced
in petition of an" person affected.
7# the donor does not reserve enough property #or his and his
#amilys support, the donation can be reduced.
The donation can be reduced as much as may be necessary.
7n e'treme cases, the donation can be revo+ed i# the donor gave
away so much, and the donor and his #amily need everything bac+.
Art. )(/). The #ollowing contracts are rescissible9

:; Those underta+en in #raud o# creditors when the latter cannot in any other manner
collect the claims due them%
Art. )(/1. &ll contracts by virtue o# which the debtor alienates property by gratuitous
title are presumed to have been entered into in #raud o# creditors, when the donor did not
reserve su##icient property to pay all debts contracted be#ore the donation.
&lienations by onerous title are also presumed #raudulent when made by persons
against whom some )udgment has been issued. The decision or attachment need not re#er to
the property alienated, and need not have been obtained by the party see+ing the rescission.
Art. )(/2. The action to claim rescission must be commenced within #our years.
For persons under guardianship and #or absentees, the period o# #our years shall not
begin until the termination o# the #ormerGs incapacity, or until the domicile o# the latter is
+nown.
Professor Ruben F. Balane Pa)e .+/ of +,-
d. Donations ust copl! ;it" t"e con+itions o. t"e +onation
:&rticle C4$;
Art. 764. The donation shall be revoked at the instance of
the donor% when the donee fails to compl" with an" of the
conditions which the former imposed upon the latter.
,n this case% the propert" donated shall be returned to the
donor% the alienations made b" the donee and the mortgages
imposed thereon b" him being void% with the limitations
established% with regard to third persons% b" the ;ortgage !aw
and the !and *egistration laws.
This action shall prescribe after four "ears from the
noncompliance with the condition% ma" be transmitted to the
heirs of the donor% and ma" be e-ercised against the donee:s
heirs.
For #ailure to comply with the conditions o# the donation, the donor
or his heirs have $ years #rom noncompliance to revo+e the
donations.
The right o# revocation may be e'ercised against the donees heirs.
,evocation is the only available remedy in this situation. ,eduction
is not applicable.
e. 7"e +onee ust not act ;it" in/ratitu+e :&rticle C43;
The #ollowing are acts o# ingratitude
a. 7# the donee should commit some o##ense against the person,
the honor or the property o# the donor, or o# his wi#e or children
under his parental authority
b. 7# the donee imputes to the donor any criminal o##ense, or any
act involving moral turpitude, even though he should prove it,
unless the crime or the act has been committed against the
donee himsel#, his wi#e or children under his authority
c. 7# he unduly re#uses him support when the donee is legally or
morally bound to give support to the donor
The re#usal by the donee must be un)usti#iable.
The #act that these acts were committed will not give rise to the
revocation. The donor must invo+e these grounds.
The donor has 1 year #rom the time the donor ac-uires +nowledge
o# the donees act o# ingratitude to revo+e :&rticle C4E;.
Art. 769. The action granted to the donor b" reason of
ingratitude cannot be renounced in advance. This action
prescribes within one "ear% to be counted from the time the
donor had knowledge of the fact and it was possible for him
to bring the action.
@. 5uccession
G. &rescription
,,,. ;odes of 9-tinguishing #wnership
Professor Ruben F. Balane Pa)e .+, of +,-
A. @oluntar! 0o+es
1. Abandonment
,ights such as ownership may be waived.
!nder &rticle 4, the waiver o# ownership need not #ollow any
#ormalities.
Art. 6. *ights ma" be waived% unless the waiver is
contrar" to law% public order% public polic"% morals% or good
customs% or prejudicial to a third person with a right recogni$ed
b" law.
2. Alienation
a. .nerous title :i.e. sale;
b. :ratuitous title
i. Inter vivos
ii. 9ortis causa
. =oluntar" destruction :i.e. burning o# trash;
G. 3n(oluntar! 0o+es
1. @ortuitous loss or destruction :i.e. #ire;
2. Accession continua :i.e. bad #aith in commi'tion or con#usion;
. *escissor" actions
$. 1udicial decree
Aro#essor =alane does not thin+ that )udicial decree should be
enumerated as an involuntary mode since the )udicial decree would be
based on something else.
3. G" operation of law :i.e. con#iscate due to police power;
"bli)ations an& Contracts
,ntroduction
0ur Civil Code #ollows the 5aian order which is o# three parts9 Aersons, Things
and 0bligations.
The title o# =oo+ 7V o# the Civil Code is inaccurate. "hile the title is
O0bligations and ContractsP, it should only be O0bligationsP since by including
OContractsP in the title, it is putting the latter on e-ual #ooting with the #ormer% but
this is not correct since contracts is only one o# the sources o# obligations.
0bligations is the most important, most abstract and most di##icult o# all o# civil
law. 7t is the entirety o# private law. 7# you dont +now obligations and contracts, you
will never understand commercial law.
The term OobligationsP was derived #rom the words OobP and OligareP which
means Oto bind or tie togetherP. O8igareP is the source o# several common words such
as OligamentP and OligationP. :8igation and Vasectomy have the same purpose9 to tie
and to cut o##, the #allopian tube, #or the #ormer, and the vas de#erens, #or the latter.;
O0bligatioP was initially a physical act o# being chained :with shac+les;.
=e#ore, under ,oman law, i# the debtor cannot pay, the creditor can bring him to the
magistrate and the magistrate can authori6e the creditor to cu## the debtor and o##er
him #or sale #or days, the proceeds o# which go to the creditor. The debtor then
becomes a slave. 7# he is not bought, the creditor can have him chopped into little
pieces or have him sold to the barbarians.
&s time passed, cruelty so#tened. =y the time o# Cicero, OligatioP does not
mean vinculum o# chains but vinculum "uris :bond o# law;. 0bligation became
metaphorical and not literal.
,. #bligations
A. De.inition o. ,'li/ation
Art. 1156. An obligation is a juridical necessit" to give% to do or not to
do.
This provision is the soul o# brevity. 7t was borrowed #rom .anche6
,oman. >owever, many commentators say it is incomplete because the
OobligationP is only #rom the point o# view o# the debtor. To ma+e it
complete, it must cover the points o# view o# both the debtor and creditor.
0bligations are bilateral. 7t should include what can be re-uired, the
remedy and the means by which the creditor can ta+e to pursue the
remedy.
&n obligation is a )uridical relation whereby a person should engage or
re#rain #rom engaging in a certain activity #or the satis#action o# the private
interest o# another who, in the case o# non2#ul#illment o# such duty, may
obtain #rom the patrimony o# the #ormer through proper )udicial
proceedings the very prestation due or in de#ault thereo#, the economic
e-uivalent that it represents :*ia6 Aiero;.
&n obligation is a )uridical relation whereby a person :called a creditor;
may demand #rom another :called the debtor; the observance o# a
determinate conduct, and, in case o# breach, may obtain satis#action #rom
the assets o# the latter :&rias ,amos;.
G. *"aracteristics o. ,'li/ations
1. 7t represents an e'clusively private interest
2. 7t creates ties which are by nature transitory
=ecause obligations are e'tinguished. =ut the period is relative < could
be seconds :e.g. buying co+e; and could be years :e.g. partnership,
lease;
. 7t involves the power to ma+e the )uridical tie de#ective in case o# non2
#ul#illment through satis#action o# the debtors property
C. 7ren+s in t"e 0o+ern :a; o. ,'li/ations
'. Progressive spirituali$ation of the law on obligations
=e#ore, obligations were very #ormal and ritualistic. 7# it was not in the
proper #orm, no obligations will assume. Now, the emphasis is in the
meeting o# the minds, and not on the speci#ic #orm. There is even no
need that it be in writing, as a General *ule, since consensuality is the
prevailing doctrine. &s long as it can be mani#est < and any +ind o#
mani#estation will do < it is su##icient.
,oman 8aw was #ormalistic. Vestiges o# ,oman 8aw in the Civil Code
can be seen in the law governing donations, which is very #ormal. /ven
#or sales, the re-uirement o# #orm is only #or en#orceability and not #or
validity. This is to ma+e it conducive to business and #acilitate
commercial transactions.
This is still an ongoing trend9 e2commerce added another option in
#orm and proo# o# contracts :but this is not applicable to all, usually only
#or business, not applicable to wills;.
4. The principle of autonom" of will of the parties is now subject to
several restrictions
"hile the principle still operates, the e'ceptions :prohibited areas; have
grown larger and larger.
&rticle 114 gives the #ive restrictions9 not contrary to law, morals,
good customs, public order, or public policy. Those which are against
these #ive restrictions are void, as can be seen in &rticle 1$1E
@
.
>owever, now we have restrictions such as social )ustice,
environmental preservation, etc. This is because o# the rising tide o#
social discontent, hence social legislation came to be #or the
underprivileged.
7. The mitigation of the principle that the debtor should answer with
all his propert"
=e#ore, the debtor had to answer his debts with all his property. Now,
certain properties are e'empt and these can be #ound in substantive
law :i.e. home; and in procedural law :i.e. support, etc.;
&lso, the debtor may not be imprisoned #or non2payment o# debts.
The theory is to leave the debtor something to live decently by.
<. The weakening of the principle that liabilit" arises from
responsibilit"
This is basically the principle in -uasi2delicts. Now, in many cases, a
person may be held liable even i# not responsible.
For e'ample, under wor+mans compensation, the employer is liable to
compensate the employee even i# the employer was not negligent.
). The tendenc" of unit" in modern legislation
This can be mani#est in the rise o# a Oglobal villageP. This can be seen
particularly in trade laws.
The tendency now is to ma+e things uni#orm especially in commerce.
*i##erent rules would impede commerce.
*
Art. )*02. The #ollowing contracts are ine'istent and void #rom the beginning9
:1; Those whose cause, ob)ect or purpose is contrary to law, morals, good customs, public
order or public policy%
D. Essential Re>uisites o. ,'li/ations
'. Active subject
The active sub)ect is called a creditor i# the obligation is to give. The
active sub)ect is called an obligee i# the obligation is to do.
The active sub)ect is always a person whether )uridical or natural.
2. Passive subject
The passive sub)ect is called a debtor i# the obligation is to give. The
passive sub)ect is called an obligor i# the obligation is to do.
The passive sub)ect must be determinate or determinable
>ow can both sub)ects be determinate or determinable(
a. 0bligations where the sub)ects are completely and absolutely
determined at the birth o# an obligation.
7# & and = are parties to a contract o# sale and = doesnt comply. &
cannot sue C.
b. 0bligations where one sub)ect is determined at the moment o# the birth
o# the obligation and the other sub)ect is to be determined
subse-uently at some #i'ed criterion, which criterion is #i'ed at the start
o# the obligation.
= ma+es a promissory note payable to B or order. 7n this case, the
creditor is not necessarily B. The creditor is either B or to
whomever the promissory note is endorsed.
&t the time o# the birth o# the obligation, the payee is not yet +nown
but the obligation is valid.
c. 0bligations in which sub)ects are determined in accordance with its
relation to a thing.
The real rights
& mortgaged property to T pursuant to a loan. The mortgage
attaches to the property. 7# & sells the property to =, the
annotation in the TCT will #ollow and = becomes the mortgagor. 7# &
doesnt pay, T goes against =.
The obligor in this case is whoever owns the land. T doesnt care
whether its & or =.
. #bject of the obligation
The ob)ect o# the obligation always consists in an activity or conduct to
be observed by the debtor towards the creditor. This conduct to be
observed is also +nown as the prestation.
7n a contract o# sale #or e'ample, the ob)ect o# the obligation is the
conduct o# the vendor in delivering the car. The car, on the other hand,
is the ob)ect o# the prestation.
Professor Ruben F. Balane Pa)e .+- of +,-
obligation
prestation
car
:ob)ect o# the obligation; deliver the car
:ob)ect o# the prestation;
.ometimes, the commentators con#use the car as the ob)ect o# the
obligation, but this is wrong. The ob)ect is not the car but the
prestation.
&ccording to Aro#essor =alane, the distinction between the ob)ect o# the
obligation and the ob)ect o# the prestation has been blurred by &rticles
1$C21$E.
,e-uisites o# the 0b)ect o# the 0bligation
a. 8icit :8egal;
Example: Cant validly enter into a contract #or se'ual services
b. Aossible both in #act and in law
*etermined by the rules o# e'perience
c. *eterminate or determinable
Cant say that O7 promise to sell you somethingP.
Example o! determinate: 7 promise to sell you my car.
Example o! determina5le: 7 promise to sell you my riceland in
=icol in November :will become determinate when time comes;.
d. Bust have pecuniary value
$. @inculu 6uris
The vinculum "uris is the legal tie. 7t consists o# the en#orceability o#
the obligation. 7# the debtor does not con#orm, the creditor has the
power to go to court to ma+e the debtor per#orm < coercive.
"hat ma+es an obligation is the power o# the creditor to haul the
debtor be#ore the court, summoning powers o# the state i# needed.
Voluntariness goes into entering into an obligation. =ut once you enter,
it becomes involuntary.
3. *ausa
Castan adds a 3
th
essential re-uisite < causa. &lso +nown as causa
de5endi or causa o5ligationes. ;ausa means the why o# an obligation.
The ob)ect o# an obligation answers the -uestion O"hat is owed(P
:Quid;. The causa answers the -uestion O"hy is it owed(P :Cur;.
For e'ample, & will deliver a car to = since & e'pects to get A11,111.
The A11,111 is the causa o# the obligation.
Professor Ruben F. Balane Pa)e ./4 of +,-
4. @orm
&nother commentators say that the 4
th
essential re-uisite is #orm.
Form means some mani#estation o# intent. 7n some cases the
mani#estation is speci#ic such as in the case o# donations.
&ccording to Aro#essor =alane that the general rule is that there is no
speci#ic #orm #or a valid obligation. >owever, i# #orm means that there
is some e'ternal mani#estation, #ine, since we are not telepathic a#ter
all. >owever, there should still be no speci#ic #orm.
9. 5ources o. ,'li/ations :&rticle 113C;
Art. 1157. #bligations arise from+
5'6 !aw3
546 Contracts3
576 Nuasi/contracts3
5<6 Acts or omissions punished b" law3 and
5)6 Nuasi/delicts.
There is really only one source o# obligations < )ust law. "ithout the law
saying that a particular contract is en#orceable, the contract will not give
rise to an obligation. >owever, OsourceP can be understood in both the
ultimate and immediate sense. 7n the ultimate sense, law is the solitary
source. 7n the immediate sense, there are 3, those enumerated in &rticle
113C. 8aw is there#ore both an immediate and ultimate source. /'amples
o# law being an immediate source are payment o# ta'es and accession.
7s this enumeration o# the sources o# obligation e'clusive( The .upreme
Court in the case o# +agrada .rden vs. ,A;.;. seem to answer it in the
a##irmative. >owever, this is only by implication or indication. The Court
did not ma+e an e'plicit statement that it is.
Bany commentators including Aro#essor =alane believe that the list is not
e'clusive. They critici6e the case because it is not a good way o#
enumerating. &t present, there is one more possible source o# obligations
< public o##er.
Example: 7n commercials, there is an o##er to replace 1 sachets o# Tide
#or one Venetian2cut glass until the end o# the year. There is no contract
or -uasi2contract. =ut i# be#ore the end o# the year, you present your Tide
sachets, you can demand #or your glass. Aublic o##er is in #act a source o#
obligation under the =5= :the 5erman Civil Code;, &rticle 43C which
provides that a person who by public notice announces a reward in the
per#ormance o# the act is liable even i# such person did not act in view o#
such reward.
&lthough public o##icers are supplemented by *T7 regulations, Aro#essor
=alane thin+s that public o##er should be made part o# the law since
regulations easily change.
1. !aw :&rticle 113D;
Art. 1158. #bligations derived from law are not presumed.
#nl" those e-pressl" determined in this Code or in special laws are
demandable% and shall be regulated b" the precepts of the law
Professor Ruben F. Balane Pa)e ./* of +,-
which establishes them3 and as to what has not been foreseen% b"
the provisions of this Gook.
There is only 1 ultimate source o# obligations < law. >owever, there
are 3 pro'imate sources o# obligations :&rticle 113C;.
2. Contract :&rticle 113E;
Art. 1159. #bligations arising from contracts have the force
of law between the contracting parties and should be complied with
in good faith.
Contract is only 1 o# the sources o# obligations.
This provision combines two concepts o# ,oman law < e-uity or good
#aith (ius gentium) and strict compliance by the parties (ius c#inile).
& contract is a meeting o# minds between 2 persons whereby one binds
himsel#, with respect to the other, to give something or to render some
service :&rticle 113;
Contractual obligations have the #orce o# law between the contracting
parties and should be complied with in good #aith :&rticle 113E;.
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
:&rticle 114;.
Contracts are per#ected by mere consent, and #rom that moment the
parties are bound not only to the #ul#illment o# what has been e'pressly
stipulated but also to all the conse-uences which, according to their
nature, may be in +eeping with good #aith, usage and law :&rticle
113;.
7n case o# doubt, the interpretation consistent with good #aith is
#ollowed (PeopleAs ;ar vs. ;ommando +ecurit8).
Aarty cannot e'cuse themselves on the ground that it has become
unpro#itable. 8aw will not protect you #rom your own bad )udgment.
. Nuasi/contract :&rticle 1141;
Art. 1160. #bligations derived from .uasi/contracts shall be
subject to the provisions of Chapter '% Title K=,,% of this Gook.
$. Delict :&rticle 1141;
Art. 1161. Civil obligations arising from criminal offenses
shall be governed b" the penal laws% subject to the provisions of
article 4'BB% and of the pertinent provisions of Chapter 4%
Preliminar" Title% on 8uman *elations% and of Title K=,,, of this
Gook% regulating damages.
General *ule+ 7# you commit a crime, you are liable both criminally
and civilly.
Exception: No private o##ended party :e.g. contempt, etc.;
Professor Ruben F. Balane Pa)e ./. of +,-
The Civil Code deals with the civil aspect :i.e. indemni#ication #or loss o#
earning capacity;.
3. Nuasi/delict :&rticle 1142;
Art. 1162. #bligations derived from .uasi/delicts shall be
governed b" the provisions of Chapter 4% Title K=,, of this Gook%
and b" special laws.
Quasi2delict is a civil law term while tort is a common law term.
*i##erence between Contractual 8iability and Quasi2*elict
7n -uasi2delict, the obligation arises only when there is a violation.
"ithout violation, there is no obligation. 7t is the breach itsel# which
gives rise to the obligation.
7n contracts, there is already an obligation which e'ists prior to or
even without a breach. The breach o# the contract is immaterial to
the legal obligation.
Example: Contract o# sale o# watch. 7# both parties per#orm their
obligation, the contract is e'tinguished. There is no breach, but
there is an obligation.
(;ompare t#e a5ove example 4it# t#e one 5elo4)
Example: *riving rec+lessly, & hits a child. "hen did the obligation
came to being( "hen there was in)ury due to negligence.
:Negligence per se does not give rise to a -uasi2delict unless there
is in)ury.;
=reach and -uasi2delict are inseparable. =ut contract and breach
may be separable.
Nuestion+ &re contracts and -uasi2delicts mutually e'clusive(
Ans;er: No.
7n :utierrez vs. :utierrez, there was a collision between a bus and a
car and a passenger o# the bus was in)ured. 7t was proven that the
driver o# the car was a minor and an incompetent driver. The
passenger sued against them all. The .upreme Court held that the bus
driver, bus owner and the driver o# the car :through his #ather; are
)ointly and severally liable to the passenger. The liability o# the owner
o# the bus and the bus driver rests on that o# a contract. 0n the other
hand, the #ather is responsible #or the acts o# his son and is there#ore
responsible #or the negligence o# the minor. >ere, it is clear that
breach o# contract and -uasi2delict are separate.
>owever, they can overlap as can be seen in the #ollowing e'ample9
=us driver drives rec+lessly and the bus hits a tree. & passenger is
in)ured. The passenger and sue the driver #or -uasi2delict :due to
negligence; or #or crime or the bus company #or breach o# contract o#
carriage or #or -uasi2delict :negligence in the selection and
supervision;.
The cause o# action one chooses determines the9
1. Aarties involved
2. *egree o# proo#
. *e#enses
Professor Ruben F. Balane Pa)e ./+ of +,-
0ne can tailor his suit depending on the cause o# action he chooses.
@. #ature an+ E..ect o. ,'li/ations
1. Oinds of Prestations
a. To give :&rticles 11421144;
Art. 1163. 9ver" person obliged to give something is also
obliged to take care of it with the proper diligence of a good
father of a famil"% unless the law or the stipulation of the parties
re.uires another standard of care.
Art. 1164. The creditor has a right to the fruits of the
thing from the time the obligation to deliver it arises. 8owever%
he shall ac.uire no real right over it until the same has been
delivered to him.
Art. 1165. 0hen what is to be delivered is a determinate
thing% the creditor% in addition to the right granted him b" article
''BE% ma" compel the debtor to make the deliver".
,f the thing is indeterminate or generic% he ma" ask that
the obligation be complied with at the e-pense of the debtor.
,f the obligor dela"s% or has promised to deliver the same
thing to two or more persons who do not have the same
interest% he shall be responsible for an" fortuitous event until he
has effected the deliver".
Art. 1166. The obligation to give a determinate thing
includes that of delivering all its accessions and accessories%
even though the" ma" not have been mentioned.
i. 7o give a determinate t#ing
Primar" #bligation+ 5iving what is supposed to be given.
3 Accessor! ,'li/ations:
1. &#ter constitution o# the obligation and be#ore delivery, to
ta+e care o# it with the proper diligence o# a good #ather o#
the #amily :&rticle 114;
General *ule+ *iligence o# a good #ather o# the #amily
Exception: 8aw or stipulation re-uires di##erent standard
o# care
7# through negligence, something causes the thing
damage, the debtor is liable #or damages.
This is not applicable to a generic thing.
2. 7o account and deliver to t#e creditor t#e !ruits i! t#e t#ing
5ears !ruits upon t#e time t#e o5ligation to deliver it arises
:&rticle 114$;.
>owever, ownership is trans#erred only by delivery.
>ence, creditors right over the #ruits is merely personal.
Example: & sold = a mango plantation to be delivered on
Manuary 1. Come Manuary 1, & did not deliver. & instead
Professor Ruben F. Balane Pa)e .// of +,-
sold the #ruits to C, a buyer in good #aith. = sues & #or
speci#ic per#ormance. Court awards the plantation to =.
*oes = have a right to the #ruits( Hes, as against &. No,
as against C, because =s right over the #ruits is only
personal. =s remedy is to go against & #or the value o#
the #ruits.
. 7o deliver t#e accessions and accessories :&rticle 1144;
*ont ta+e accession in the technical sense :or else, it
might overlap with ii;. !nderstand it to mean things that
go with the thing to be delivered :i.e. radio o# the car;.
,emedies &vailable to the Creditor
1. .peci#ic per#ormance < the debtor must per#orm it
personally
2. /-uivalent per#ormance < damages
*amages may be obtained e'clusively or in addition to
the 1
st
action.
,ules regarding 7mprovement, 8oss or *eterioration :&rticles
11DE, 11E1, 11E$ ;
Art. 1189. 0hen the conditions have been imposed
with the intention of suspending the efficac" of an
obligation to give% the following rules shall be observed in
case of the improvement% loss or deterioration of the
thing during the pendenc" of the condition+
5'6 ,f the thing is lost without the fault of the debtor%
the obligation shall be e-tinguished3
546 ,f the thing is lost through the fault of the debtor%
he shall be obliged to pa" damages3 it is
understood that the thing is lost when it perishes%
or goes out of commerce% or disappears in such a
wa" that its e-istence is unknown or it cannot be
recovered3
576 0hen the thing deteriorates without the fault of
the debtor% the impairment is to be borne b" the
creditor3
5<6 ,f it deteriorates through the fault of the debtor%
the creditor ma" choose between the rescission of
the obligation and its fulfillment% with indemnit"
for damages in either case3
5)6 ,f the thing is improved b" its nature% or b" time%
the improvement shall inure to the benefit of the
creditor3
5A6 ,f it is improved at the e-pense of the debtor% he
shall have no other right than that granted to the
usufructuar".
Art. 1190. 0hen the conditions have for their
purpose the e-tinguishment of an obligation to give% the
parties% upon the fulfillment of said conditions% shall
return to each other what the" have received.
Professor Ruben F. Balane Pa)e ./, of +,-
,n case of the loss% deterioration or improvement of
the thing% the provisions which% with respect to the
debtor% are laid down in the preceding article shall be
applied to the part" who is bound to return.
As for the obligations to do and not to do% the
provisions of the second paragraph of article ''CB shall
be observed as regards the effect of the e-tinguishment
of the obligation.
Art. 1194. ,n case of loss% deterioration or
improvement of the thing before the arrival of the da"
certain% the rules in article ''CD shall be observed.

1. ,e-uisites
a. 0bligation has a suspensive condition, a resolutory
condition or term
b. The obligor is obligated to deliver a determinate thing
c. There is improvement, loss or deterioration be#ore the
#ul#illment o# the condition or the period
d. The condition is #ul#illed or the period arrives
2. ,ules Aroper
a. 7# the thing is lost without the #ault o# the debtor, the
obligation is e'tinguished
b. 7# the thing is lost through the #ault o# the debtor, he
must pay damages
The thing is lost when it perishes, goes out o#
commerce or disappears in such a way that its
e'istence is un+nown or cannot be recovered.
c. 7# the thing deteriorates without the #ault o# the debtor,
the creditor must accept the thing in its impaired
condition
d. 7# the thing deteriorates through the #ault o# the debtor,
the creditor may choose between
i. ,esolution :&rticle 11DE; plus damages
ii. Ful#illment o# the obligation plus damages
e. 7# the thing is improved by nature or by time, the
improvement shall inure to the bene#it o# the creditor
#. 7# the thing is improved at the e'pense o# the debtor, the
debtor shall the same rights as a usu#ructuary
ii. 7o give a generic t#ing
1. .peci#ic per#ormance < the debtor must per#orm it personally
2. .ubstitute per#ormance < done by someone else :per#orm at
the e'pense o# the debtor;
. /-uivalent per#ormance < damages
the 1
st
2 actions.
c. 7o +o :&rticle 114C;
Art. 1167. ,f a person obliged to do something fails to do
it% the same shall be e-ecuted at his cost.
This same rule shall be observed if he does it in
contravention of the tenor of the obligation. @urthermore% it ma"
be decreed that what has been poorl" done be undone.
i. 0nly the obligor can do :personalisimo)
1. /-uivalent per#ormances < damages
ii. &nyone else can do it :not personalisimo;
1. .ubstitute per#ormance < done by someone else :per#orm at
the e'pense o# the debtor;
2. /-uivalent per#ormance < damages
the 1
st
2 actions.
b. #ot to +o :&rticle 114D;
Art. 1168. 0hen the obligation consists in not doing% and
the obligor does what has been forbidden him% it shall also be
undone at his e-pense.
This includes the obligation not to give.
i. .ubstitute per#ormance 2 done by someone else :per#orm at the
e'pense o# the debtor;
ii. /-uivalent per#ormance 2 damages
*amages may be obtained e'clusively or in addition to the
1
st
2 actions.
Summary of the rules regarding remedies available to the creditor in
obligations to give, to do and not to do.
#bligation
?pecific
Performance
9.uivalent
Performance
?ubstitute
Performance
'. To give
a. Determinate thing ] ] ^
b. Determinable thing ] ] ]
4. To do
a. =er" personal ^ ] ^
b. 2ot ver" personal ^ ] ]
7. 2ot to do ^ ] ]
.peci#ic per#ormance is the per#ormance o# the prestation itsel#.
7n obligations to do or not to do, speci#ic per#ormance is not
available since it will go against the constitutional prohibition
against involuntary servitude.
/-uivalent per#ormance is the payment o# damages
.ubstitute per#ormance is when someone else per#orms or something
else is per#ormed at the e'pense o# the debtor.
2. ,rregularit" in Performance
a. Attri'uta'le to t"e De'tor 1culpa'le2
&rticle 11C1 provides that those who in the per#ormance o# their
obligations are guilty o# #raud, negligence, or delay and those who
in any manner contravene the tenor thereo#, are liable #or damages.
&ccording to Aro#essor =alane, the phrase O who in any manner
contravene the tenor thereo#P is a catch2all provision. >owever,
such is unnecessary. Nothing will escape #raud, negligence or
delay.
i. ?raud :&rticles 11C1, 11C1;
Art. 1170. Those who in the performance of their
obligations are guilt" of fraud% negligence% or dela"% and
those who in an" manner contravene the tenor thereof% are
liable for damages.
Art. 1171. *esponsibilit" arising from fraud is
demandable in all obligations. An" waiver of an action for
future fraud is void.
The problem with #raud is the term. 7t is used in di##erent
meanings in the Code.
Fraud may be de#ined as the voluntary e'ecution o# a wrong#ul
act, or will#ul omission, +nowing and intending the e##ects which
naturally and necessarily arise #rom such act or omission. Fraud
is the deliberate and intentional evasion o# the normal #ul#illment
o# the obligation. 7t is distinguished #rom negligence by the
presence o# deliberate intent, which is lac+ing in the latter.
(Legaspi .il vs. ;A)
Fraud under &rticle 11C1 is more properly called as malice.
Fraud under &rticle 11C1 must not be con#used with #raud under
&rticle 1D
. Fraud under &rticle 1D is more properly called

as deceit.
7n &rticle 1D, #raud pree'ists the obligation, thus the
obligation is voidable. *eceit vitiates consent in contracts.
*eceit is antecedent #raud. The deceit occurs by using insidious
words machinations. "ithout this deceit, the other party would
not have entered into the contract.
7n &rticle 11C1, there was already an obligation be#ore the #raud
e'ists. Balice is subse-uent #raud.
Example o! !raud as deceit under Article )((/: & and = entered
into a contract o# sale o# a diamond nec+lace. >owever, the
nec+lace was really made o# glass. Fraud here is deceit. There
was vitiation o# consent hence the contract is voidable.
Example o! !raud as malice under Article ))1). & and = entered
into a contract. = will deliver #urniture made o# narra but =
delivered one made o# plywood. Fraud here is malice. 7t will not
a##ect the validity o# the contract.
/##ects o# Fraud :&rticles 11C1, 11C1;
1. Creditor may insist on proper substitute or speci#ic
per#ormance :&rticle 12
;% or
2. ,escissionK,esolution :&rticle 11E1
;
. *amages in either case :&rticle 11C1;
ii. ,egligence
Negligence is the absence o# due diligence :&rticle 11C;
Art. 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is re.uired
b" the nature of the obligation and corresponds with the
circumstances of the persons% of the time and of the place.
0hen negligence shows bad faith% the provisions of articles
''B' and 44E'% paragraph 4% shall appl".
_
Art. )((/. There is #raud when, through insidious words or machinations o# one o# the
contracting parties, the other is induced to enter into a contract which, without them, he would
not have agreed to.
_
&rt. 12. & debt shall not be understood to have been paid unless the thing or service in
which the obligation consists has been completely delivered or rendered, as the case may be.
_
Art. ))2). The power to rescind obligations is implied in reciprocal ones, in case one o# the
obligors should not comply with what is incumbent upon him.
The in)ured party may choose between the #ul#illment and the rescission o# the
obligation, with the payment o# damages in either case. >e may also see+ rescission, even a#ter
he has chosen #ul#illment, i# the latter should become impossible.
The court shall decree the rescission claimed, unless there be )ust cause authori6ing the
#i'ing o# a period.
This is understood to be without pre)udice to the rights o# third persons who have
ac-uired the thing, in accordance with articles 1D3 and 1DD and the Bortgage 8aw.
Professor Ruben F. Balane Pa)e ./- of +,-
,f the law or contract does not state the diligence
which is to be observed in the performance% that which is
e-pected of a good father of a famil" shall be re.uired.
Art. 1172. *esponsibilit" arising from negligence in
the performance of ever" kind of obligation is also
demandable% but such liabilit" ma" be regulated b" the
courts% according to the circumstances.
8i+e #raud, negligence results in improper per#ormance. =ut it is
characteri6ed by lac+ o# care, unli+e #raud which is characteri6ed
by malice.
8ac+ o# care means lac+ o# due diligence or the care o# a good
#ather o# the #amily (5onus pater!amilias) under &rticle 114.
7n /nglish law, due diligence is called the diligence o# a prudent
businessman, since they are more commerce2oriented.
2 Types o# Negligence
1. .imple
2. 5ross
The determination o# due diligence is always relative. 7t will
depend on
1. The nature o# the obligation
2. Nature o# the circumstances o#
a. Aerson
b. Time
c. Alace
Example: The diligence re-uired in shipping hinges is
di##erent #rom the diligence re-uired in shipping the Pieta
de 9ic#aelangelo. The shipper must observe the
diligence o# a good #ather o# the #amily in both cases but
the standard o# care is di##erent. 7t is much higher #or
the Pieta.
The diligence o# a good #ather o# the #amily is the
imaginary standard.
/##ects o# Negligence :&rticles 11C1, 11C2;
1. Creditor may insist on proper substitute or speci#ic
per#ormance :&rticle 12;% or
2. ,escissionK,esolution :&rticle 11E1;
. *amages in either case :&rticle 11C1;
Professor Ruben F. Balane Pa)e .,4 of +,-
iii. Dela8 (9ora)
Art. 1169. Those obliged to deliver or to do something
incur in dela" from the time the obligee judiciall" or
e-trajudiciall" demands from them the fulfillment of their
obligation.
8owever% the demand b" the creditor shall not be
necessar" in order that dela" ma" e-ist+
5'6 0hen the obligation or the law e-pressl" so declare3
or
546 0hen from the nature and the circumstances of the
obligation it appears that the designation of the time
when the thing is to be delivered or the service is to
be rendered was a controlling motive for the
establishment of the contract3 or
576 0hen demand would be useless% as when the obligor
has rendered it be"ond his power to perform.
,n reciprocal obligations% neither part" incurs in dela"
if the other does not compl" or is not read" to compl" in a
proper manner with what is incumbent upon him. @rom the
moment one of the parties fulfills his obligation% dela" b" the
other begins.
*elay has nothing to do with -uality but only with punctuality.
*elay is the non2#ul#illment o# the obligation with respect to
time. 7n #raud and negligence, the -uestion is the -uality even i#
per#ormed on time. 7n delay, even i# the -uality is e'cellent but
the per#ormance is not in due time, the debtor is liable.
,e-uisites o# delay (+++ vs. 9oon4al6)
0bligation is demandable and li-uidated
*elay is through #ault or negligence
Creditor re-uires per#ormance either )udicially :through court
action; or e'tra)udicially :any communication by the creditor
to debtor;.
7n reciprocal obligations :obligations with a counterpart
prestation; which re-uire simultaneous per#ormance, demand is
still needed.
I#at is t#e !orm o! suc# demandJ &ny communication o# a
party that he is ready and willing to comply with his
obligation. 7# a#ter receipt o# demand and the other party
does not comply with his obligation, he is in delay.
Iinds o# *elay
1. 9ora solvendi
*elay in per#ormance incurred by the debtor.
,e-uisites9
a. The obligation is demandable and li-uidated
b. *ebtor delays per#ormance either because o# dolo or
culpa
Professor Ruben F. Balane Pa)e .,* of +,-
c. The creditor demands the per#ormance either
)udicially or e'tra)udicially
General *ule+ *emand is necessary. :mora solvendi ex
persona;. Thus, no demand, no delay.
Exceptions: :mora solvendi ex re; < &rticle 114E
a. "hen the obligation or the law e'pressly so declares
Bere setting o# due date is not enough. This does
not constitute automatic delay.
There must be an e'press stipulation to the
#ollowing e##ect9 ONon2per#ormance on that day is
delay without need o# demand.P (Dela Rosa vs.
-PI)
b. "hen it appears #rom the nature and circumstances
o# the obligation that time was a controlling motive
#or the establishment o# the contract.
Example: The wedding gown has to be ready
be#ore the wedding.
c. "hen demand would be useless, when obligor has
rendered it beyond his power to per#orm.
Example: & sold the #ruits o# the mango
plantation he already sold to = to C. = need not
ma+e a demand on & to deliver the #ruits since
demand would be useless.
/##ects o# 9ora +olvedi
a. "hen the obligation is to deliver a determinate thing,
the ris+ is placed on the part o# the debtor :&rticle
1143
;
b. *amages
c. ,escissionK ,esolution :&rticle 11E1;
2. 9ora accipiendi
The creditor incurs in delay when debtor tenders payment
or per#ormance, but the creditor re#uses to accept it
without )ust cause.
9ora accipiendi is related to payment :consignation;.
_
Art. ))&$. "hen what is to be delivered is a determinate thing, the creditor, in addition to
the right granted him by article 11C1, may compel the debtor to ma+e the delivery.
7# the thing is indeterminate or generic, he may as+ that the obligation be complied
with at the e'pense o# the debtor.
7# the obligor delays, or has promised to deliver the same thing to two or more persons
who do not have the same interest, he shall be responsible #or any #ortuitous event until he has
e##ected the delivery.
Professor Ruben F. Balane Pa)e .,. of +,-
,e-uisites9
a. &n o##er o# per#ormance by the debtor who has the
re-uired capacity
b. The o##er must be to comply with the prestation as it
should be per#ormed
c. The creditor re#uses the per#ormance without )ust
cause.
/##ects o# 9ora Accipiendi:
a. ,esponsibility o# debtor #or the thing is limited to
#raud and gross negligence
b. *ebtor is e'empted #rom ris+ o# loss o# thing wKc
automatically pass to creditor
c. /'penses incurred by debtor #or preservation o# thing
a#ter the delay shall be chargeable to creditor.
d. 7# the obligation has interest, debtor shall not have
obligation to pay the same #rom the time o# the delay
e. Creditor becomes liable #or damages
#. *ebtor may relieve himsel# by consignation o# the
thing
. ;ompensatio morae
*elay on both sides in reciprocal obligations, cancel each
other out.
b. #ot Attri'uta'le to t"e De'tor 1non<culpa'le2
?ortuitous event
Art. 1174. 9-cept in cases e-pressl" specified b" the
law% or when it is otherwise declared b" stipulation% or when
the nature of the obligation re.uires the assumption of risk%
no person shall be responsible for those events which could
not be foreseen% or which% though foreseen% were inevitable.
&lso governed by &rticle 1221
but is called loss there, a cause

#o e'tinguishment o# obligation.
&lso called caso !ortuioto !orce mar"eure act o# 5od.
,e-uisites (,a6pil vs. ;A)
1. The cause o# the un#oreseen and une'pected occurrence, or
the #ailure to comply with his obligations, must be
independent o# the human will
Art. )%%). 7# the thing has been lost or i# the prestation has become impossible without the
#ault o# the solidary debtors, the obligation shall be e'tinguished.
7# there was #ault on the part o# any one o# them, all shall be responsible to the
creditor, #or the price and the payment o# damages and interest, without pre)udice to their
action against the guilty or negligent debtor.
7# through a #ortuitous event, the thing is lost or the per#ormance has become
impossible a#ter one o# the solidary debtors has incurred in delay through the )udicial or
e'tra)udicial demand upon him by the creditor, the provisions o# the preceding paragraph shall
apply.
Professor Ruben F. Balane Pa)e .,+ of +,-
2. 7t must be impossible to #oresee the event which constitute
the caso !ortuito, or i# it can be #oreseen, it must be
impossible to avoid
. The occurrence must be such as to render it impossible #or
the debtor to #ul#ill his obligation in a normal manner
$. The obligor must be #ree #rom any participation in the
aggravation o# the in)ury resulting to the creditor
General *ule+ "hen a debtor is unable to #ul#ill his obligation
because o# a #ortuitous event or !orce ma"eure, he cannot be
held liable #or damages or non2per#ormance.
Exceptions:
1. "hen the law so provides :i.e. &rticle 1143, ?2
;
2. "hen there is e'press stipulation
Fortuitous event yields to contrary stipulation.
. "hen the nature o# the obligation re-uires the assumption o#
ris+ :i.e. insurance contracts;
. #ther Provisions
Art. 1175. >surious transactions shall be governed b"
special laws.
&rticle 11C3 is dead letter law because o# the li#ting o# the ceiling on
interest rates. Thus, usury has been decriminali6ed, but the
decriminali6ation cannot be given retroactive e##ect :with respect to the
civil aspect;.
.ome decisions have struc+ down high interests, not because they were
usurious but because such rates were unconscionable.
Correlate &rticle 11C3 with &rticles 1E3C, 1$1 and 1E41
.
Art. 1176. The receipt of the principal b" the creditor
without reservation with respect to the interest% shall give rise to
the presumption that said interest has been paid.
The receipt of a later installment of a debt without
reservation as to prior installments% shall likewise raise the
presumption that such installments have been paid.
2 Aresumptions regarding9
a. 7nterest bearing debt
`
Article ))&$ '%. 7# the obligor delays, or has promised to deliver the same thing to two or
more persons who do not have the same interest, he shall be responsible #or any #ortuitous
event until he has e##ected the delivery.
`
Art. )2$1. Contracts and stipulations, under any cloa+ or device whatever, intended to
circumvent the laws against usury shall be void. The borrower may recover in accordance with
the laws on usury.
Art. )*)(. 7nterest paid in e'cess o# the interest allowed by the usury laws may be
recovered by the debtor, with interest thereon #rom the date o# the payment.
Art. )2&). !surious contracts shall be governed by the !sury 8aw and other special
laws, so #ar as they are not inconsistent with this Code.
Professor Ruben F. Balane Pa)e .,/ of +,-
Aresumption that interest has been paid i# the principal has been
received without reservation regarding interest,
b. *ebt payable in installments
Aresumption that earlier installments have been paid i# the later
installment has been received without reservation regarding the
previous installments.
These are only rebuttable presumptions, you can prove through other
evidence. Hou can prove mista+e.
Art. 1177. The creditors% after having pursued the propert"
in possession of the debtor to satisf" their claims% ma" e-ercise all
the rights and bring all the actions of the latter for the same
purpose% save those which are inherent in his person3 the" ma"
also impugn the acts which the debtor ma" have done to defraud
them.
/n#orcement o# Creditors ,emedies
a. 8evy and e'ecution o# the debtors non2e'empt properties :&rticles
11CC, 224
;
b. Accion su5rogatoria
.ubrogatory action premised on the theory that Othe debtor o#
my debtor is my debtor.P
,e-uisites9
i. Creditor has a right o# credit against the debtor.
ii. Credit is due and demandable.
iii. Failure o# debtor to collect his own credit #rom a third person
either through malice or negligence.
iv. 7nsu##iciency o# assets o# the debtor to satis#y the creditors
credit
v. ,ight :o# account; is not intuitu personae
c. Accion pauliana :&rticles 1D121DE;
,ight o# creditors to rescind alienations by debtor which are
pre)udicial to them to the e'tent o# the pre)udice.
Example: & donates land to C but he owes =. & has no other
property. = can rescind the donation to C. The donation is
rescissible to the e'tent o# the debt.
,e-uisites9
i. There is a credit in #avor o# the plainti##
ii. The debtor has per#ormed an act subse-uent to the contract,
giving advantage to other persons.
iii. The creditor is pre)udiced by the debtors act which are in
#avor o# third parties and rescission will bene#it the creditor.
iv. The creditor has no other legal remedy.
v. The debtors acts are #raudulent.
Art. %%(&. The debtor is liable with all his property, present and #uture, #or the #ul#illment o#
his obligations, sub)ect to the e'emptions provided by law.
Professor Ruben F. Balane Pa)e .,, of +,-
d. Accion directa
& direct :not subrogatory; action by the creditor against his
debtors debtor, a remedy which gives the creditor the
prerogative to act in his own name, such as the actions o# the
lessor against the sublessee :&rticle 1432
;, the laborer o# an
independent contractor against the owner :&rticle 1C2E
@
;, the
principal against the subagent :&rticle 1DE
;, and the vendor2a2

retro against the trans#eree o# the vendee :&rticle 141D
;.
This is an e'ception to the relativity o# contracts.
Example ):
There are two separate contracts here9 The contract o# lease
between & and = and the contract o# sub2lease between = and
C. C owes = AC111. = owes & A3111.
0rdinarily, & cannot sue C since there is no relationship between
them, but in &rticle 1432, & can sue C #or A3111.
Example %:
&gain, there are two separate contracts here9 The contract #or a
piece o# wor+ between & and = and the contract o# labor
between = and C. & owes = A11,111 which is not #ully paid yet.
= owes C A3111 #or unpaid wages. C can go a#ter & directly #or
A3111.
Art. )&$%. The sublessee is subsidiarily liable to the lessor #or any rent due #rom the lessee.
>owever, the sublessee shall not be responsible beyond the amount o# rent due #rom him, in
accordance with the terms o# the sublease, at the time o# the e'tra2)udicial demand by the
lessor.
Aayments o# rent in advance by the sublessee shall be deemed not to have been made,
so #ar as the lessorGs claim is concerned, unless said payments were e##ected in virtue o# the
custom o# the place.
*
Art. )1%2. Those who put their labor upon or #urnish materials #or a piece o# wor+ underta+en
by the contractor have an action against the owner up to the amount owing #rom the latter to
the contractor at the time the claim is made. >owever, the #ollowing shall not pre)udice the
laborers, employees and #urnishers o# materials9
:1; Aayments made by the owner to the contractor be#ore they are due%
:2; ,enunciation by the contractor o# any amount due him #rom the owner.
This article is sub)ect to the provisions o# special laws.
_
Art. )/2(. 7n the cases mentioned in Nos. 1 and 2 o# the preceding article, the principal
may #urthermore bring an action against the substitute with respect to the obligations which
the latter has contracted under the substitution.
_
Art. )&0/. The vendor may bring his action against every possessor whose right is derived
#rom the vendee, even i# in the second contract no mention should have been made o# the right
to repurchase, without pre)udice to the provisions o# the Bortgage 8aw and the 8and
,egistration 8aw with respect to third persons.
sub2lease lease
& = C
piece o# wor+
&
(customer)
labor
C =
contract o# contract #or a
(contractor) (4or6er)
Art. 1178. ?ubject to the laws% all rights ac.uired in virtue of
an obligation are transmissible% if there has been no stipulation to
the contrar".
,ights are transmissible unless the rights are personal.
G. Di..erent ?in+s o. ,'li/ations
1. According to Demandabilit" :&rticles 11CE211E2;
Art. 1179. 9ver" obligation whose performance does not
depend upon a future or uncertain event% or upon a past event
unknown to the parties% is demandable at once.
9ver" obligation which contains a resolutor" condition shall
also be demandable% without prejudice to the effects of the
happening of the event.
Art. 1180. 0hen the debtor binds himself to pa" when his
means permit him to do so% the obligation shall be deemed to be
one with a period% subject to the provisions of article ''DB.
Art. 1181. ,n conditional obligations% the ac.uisition of
rights% as well as the e-tinguishment or loss of those alread"
ac.uired% shall depend upon the happening of the event which
constitutes the condition.
Art. 1182. 0hen the fulfillment of the condition depends
upon the sole will of the debtor% the conditional obligation shall be
void. ,f it depends upon chance or upon the will of a third person%
the obligation shall take effect in conformit" with the provisions of
this Code.
Art. 1183. ,mpossible conditions% those contrar" to good
customs or public polic" and those prohibited b" law shall annul the
obligation which depends upon them. ,f the obligation is divisible%
that part thereof which is not affected b" the impossible or
unlawful condition shall be valid.
The condition not to do an impossible thing shall be
considered as not having been agreed upon.
Art. 1184. The condition that some event happen at a
determinate time shall e-tinguish the obligation as soon as the
time e-pires or if it has become indubitable that the event will not
take place.
Art. 1185. The condition that some event will not happen at
a determinate time shall render the obligation effective from the
moment the time indicated has elapsed% or if it has become evident
that the event cannot occur.
,f no time has been fi-ed% the condition shall be deemed
fulfilled at such time as ma" have probabl" been contemplated%
bearing in mind the nature of the obligation.
Art. 1186. The condition shall be deemed fulfilled when the
obligor voluntaril" prevents its fulfillment.
Art. 1187. The effects of a conditional obligation to give%
once the condition has been fulfilled% shall retroact to the da" of the
constitution of the obligation. 2evertheless% when the obligation
imposes reciprocal prestations upon the parties% the fruits and
interests during the pendenc" of the condition shall be deemed to
have been mutuall" compensated. ,f the obligation is unilateral% the
debtor shall appropriate the fruits and interests received% unless
from the nature and circumstances of the obligation it should be
inferred that the intention of the person constituting the same was
different.
,n obligations to do and not to do% the courts shall
determine% in each case% the retroactive effect of the condition that
has been complied with.
Art. 1188. The creditor ma"% before the fulfillment of the
condition% bring the appropriate actions for the preservation of his
right.
The debtor ma" recover what during the same time he has
paid b" mistake in case of a suspensive condition.
Art. 1189. 0hen the conditions have been imposed with the
intention of suspending the efficac" of an obligation to give% the
following rules shall be observed in case of the improvement% loss
or deterioration of the thing during the pendenc" of the condition+
5'6 ,f the thing is lost without the fault of the debtor% the
obligation shall be e-tinguished3
546 ,f the thing is lost through the fault of the debtor% he shall
be obliged to pa" damages3 it is understood that the thing
is lost when it perishes% or goes out of commerce% or
disappears in such a wa" that its e-istence is unknown or it
cannot be recovered3
576 0hen the thing deteriorates without the fault of the debtor%
the impairment is to be borne b" the creditor3
5<6 ,f it deteriorates through the fault of the debtor% the
creditor ma" choose between the rescission of the
obligation and its fulfillment% with indemnit" for damages
in either case3
5)6 ,f the thing is improved b" its nature% or b" time% the
improvement shall inure to the benefit of the creditor3
5A6 ,f it is improved at the e-pense of the debtor% he shall have
no other right than that granted to the usufructuar".
Art. 1190. 0hen the conditions have for their purpose the
e-tinguishment of an obligation to give% the parties% upon the
fulfillment of said conditions% shall return to each other what the"
have received.
,n case of the loss% deterioration or improvement of the
thing% the provisions which% with respect to the debtor% are laid
down in the preceding article shall be applied to the part" who is
bound to return.
As for the obligations to do and not to do% the provisions of
the second paragraph of article ''CB shall be observed as regards
the effect of the e-tinguishment of the obligation.
Art. 1191. The power to rescind obligations is implied in
reciprocal ones% in case one of the obligors should not compl" with
what is incumbent upon him.
The injured part" ma" choose between the fulfillment and
the rescission of the obligation% with the pa"ment of damages in
either case. 8e ma" also seek rescission% even after he has chosen
fulfillment% if the latter should become impossible.
The court shall decree the rescission claimed% unless there be
just cause authori$ing the fi-ing of a period.
This is understood to be without prejudice to the rights of
third persons who have ac.uired the thing% in accordance with
articles '7C) and '7CC and the ;ortgage !aw.
Art. 1192. ,n case both parties have committed a breach of
the obligation% the liabilit" of the first infractor shall be e.uitabl"
tempered b" the courts. ,f it cannot be determined which of the
parties first violated the contract% the same shall be deemed
e-tinguished% and each shall bear his own damages.
a. &ure
& pure obligation is one which has neither a condition nor a term
attached to it. 7t is one which is sub)ect to no contingency.
& pure obligation is demandable at once :&rticle 11CE;.
b. *on+itional
& condition is a #uture and uncertain event.
&ll conditions are #uture.
&rticle 11CE mentions the term Opast event un+nown to the
partiesP. This has been critici6ed by many commentators. This is a
contradiction in terms. The condition in a past even un+nown to the
parties is +nowledge by the parties o# the past event.
7n conditional obligation, the happening o# the condition determines
its birth or death. 7n term, the happening o# the term determines
its demandability.
Types o# Conditions
i. 1. +uspensive
The #ul#illment o# a suspensive condition results in the
ac-uisition o# rights arising out o# the obligation.
The condition that some event happen at a determinate
time shall e'tinguish the obligation as soon as the time
e'pires or i# it has become indubitable that the event will
not ta+e place :&rticle 11D$;
The condition that some event will not happen at a
determinate time shall render the obligation e##ective
#rom the moment the time indicated has elapsed, or i# it
Professor Ruben F. Balane Pa)e .,- of +,-
has become evident that the event cannot occur :&rticle
11D3;.
The moment the suspensive condition happens, the
obligation becomes e##ective and en#orceable. >owever,
the e##ects o# the obligation retroact to the moment when
such obligation was constituted or created. =y the
principle o# retroactivity, there#ore, a #iction is created
whereby the binding tie o# the conditional obligation is
produced #rom the time o# its per#ection, and not #rom
the happening o# the condition :&rticle 11DC;
The law does not re-uire the delivery or payment o# the
#ruits or interests accruing be#ore the happening o# the
suspensive condition. The right to the #ruits o# the thing
is not within the principle o# retroactivity o# conditional
obligations :&rticle 11DC;
7# the obligation imposes reciprocal prestations, #ruits and
interest are deemed mutually compensated.
Example: 7 promise to sell my mango plantation at
A3111Khectare i# you pass the bar e'amination.
7 do not have to give you the #ruits #rom the time o# the
agreement to the release o# the bar e'ams.
7# the obligation is unilateral, debtor appropriates the
#ruits.
7n obligations to do and not to do, the courts shall use
sound discretion to determine the retroactive e##ect o# the
#ul#illment o# the condition :&rticle 11DC;
The creditor may, be#ore the #ul#illment o# the condition,
bring the appropriate actions #or the preservation o# his
right :&rticle 11DD, 1
st
?;. M=8 ,eyes critici6es the use o#
the word ObringP. The 1
st
? o# &rticle 11DD does not limit
itsel# to )udicial actions. Thus, the word Ota+eP is better.
The debtor who paid be#ore the happening o# the
condition may recover only when he paid by mista+e and
provided the action to recover is brought be#ore the
condition :&rticle 11DD;.
2. Resolutor8
The #ul#illment o# the resolutory condition results in the
e'tinguishments o# rights arising out o# the obligation.
7# the resolutory condition is #ul#illed, the obligation is
treated as i# it did not e'ist. Thus, each party is bound to
return to the other whatever he has received, so that
they may be returned to their original condition be#ore
the creation o# the obligation :&rticle 11E1;.
,esolution :&rticle 11E1; is #ound on the conditional
obligations because i# there is a breach, the breach is a
resolutory condition which e'tinguishes the obligation.
&rticle 11E1 uses the term OrescissionP. The better term
is OresolutionP. The term rescission is also #ound in
&rticle 1D1
, rescissible contracts. ,esolution is

di##erent #rom rescission. ,esolution is based on the non2
#ul#illment o# the obligation. ,escission is based on
economic pre)udice. Furthermore, the character o#
resolution is principal and retaliatory while the character
o# rescission is subsidiary. This means that in resolution
there is no need to show that there is no other remedy.
7n rescission, the plainti## must show that there is no
other recourse.
The right o# resolution applies to reciprocal obligations.
& reciprocal obligation has 2 elements
1. 2 prestations arising #rom the same source
2. /ach prestation is designed to be the counterpart o#
the other
&n e'ample o# a reciprocal obligation is a contract o# sale.
.ummary o# ,ulings on ,esolution
1. The right to resolve is in inherent in reciprocal
obligations.
2. The breach o# the obligation must be substantial.
Aroo# o# substantial breach is a prere-uisite #or
resolution.
. The right o# resolution can be e'ercised e'tra)udicially
and will ta+e e##ect upon communication to the
de#aulting party. This notice o# resolution is
necessary.
$. The e'ercise o# this right can be the sub)ect o# )udicial
review.
3. !pon resolution, there must be mutual restitution o#
the ob)ect and its #ruits
The parties are returned to their original situation
< status =uo ante.
4. 7# the aggrieved party has not per#ormed the
prestation and resolves e'tra)udicially, then all the
aggrieved party has to do is to re#use to per#orm his
prestation.
C. 7# the aggrieved party has per#ormed the prestation,
the aggrieved party can demand recovery. 7# the
_
Art. )(/). The #ollowing contracts are rescissible9
:1; Those which are entered into by guardians whenever the wards whom they represent
su##er lesion by more than one2#ourth o# the value o# the things which are the ob)ect
thereo#%
:2; Those agreed upon in representation o# absentees, i# the latter su##er the lesion stated
in the preceding number%
:; Those underta+en in #raud o# creditors when the latter cannot in any other manner
collect the claims due them%
:$; Those which re#er to things under litigation i# they have been entered into by the
de#endant without the +nowledge and approval o# the litigants or o# competent )udicial
authority%
:3; &ll other contracts specially declared by law to be sub)ect to rescission.
de#aulting party re#uses to return it, the aggrieved
party must go to court in order to recover.
7n Ilingan vs.;A (+eptem5er %& %00)) case, there was
an o5iter dictum that the operative act that resolves a
contract is the decree o# court and the right should be
e'ercised )udicially. Aro#essor =alane says this is wrong.
>owever, the ratio o# the case said that the
communication must be a notarial notice.
ii. 1. Potestative
7n a potestative condition, the #ul#illment o# the condition
depends upon the will o# a party to the obligation.
7# the condition depends upon the will o# the creditor,
then the obligation is valid. 7n this case, there is a
vinculum "uris. The creditor can compel the debtor to
per#orm the obligation.
Example: 7 will give you my pomelo plantation i# you
establish permanent residence in *avao.
This is a suspensive condition dependent on the sole will
o# the creditor. 7t becomes pure and demandable at
once.
&rticle 11D2 prohibits a suspensive potestative condition
dependent on the will o# the debtor. The entire obligation
is void.
Example: 7 will sell you my car i# 7 want to.
I#8 does it annul t#e entire o5ligationJ
=ecause there is no )uridical tie. ,emember, an
obligation is one which has to be per#ormed regardless o#
the will o# the debtor. There is no element o#
compulsion. 7n the e'ample above, the creditor can
never compel, can never have a cause o# action.
7n reciprocal obligations, the law only tal+s about the #irst
prestation, the reciprocal prestation is not ta+en into
consideration.
2. ;asual
7n a casual condition, the #ul#illment o# the condition
depends upon chance andKor upon the will o# a
rd
person
and not on the will o# a party.
Example: 7 will give you my house i# the Ahilippines
renounces its #oreign debt in 3 years. :*ependent solely
on the will o# a third person or on chance;.
. 9ixed
7n a mi'ed condition, the #ul#illment o# the condition
depends partly upon the will o# a party to the obligation
and partly upon chance andKor the will o# a
rd
person.
"hen the condition depends not only upon the will o# the
debtor, but also upon chance or will o# the others, the
obligation is valid.
Example: 7 will give you my house i# you marry him
within years. :The condition here is a mi'ed condition.
7n this case, the condition o# marriage depends partly on
the creditor, a party to the obligation, and partly on a
rd
person.;
*octrine o# Constructive Compliance
The condition shall be deemed #ul#illed when the obligor
voluntarily prevents its #ul#illment :&rticle 11D4;.
The principle underlying constructive #ul#illment o#
conditions is that a party to a contract may not be
e'cused #rom per#orming his promise by the non2
occurrence o# an event which he himsel# prevented.
,e-uisites
1. 7ntent o# the debtor to prevent
#ul#illment o# the obligation
"here the act o# the debtor, however, although
voluntary, did not have #or its purpose the
prevention o# the #ul#illment o# the condition, it will
not #all under the doctrine o# constructive
compliance.
2. &ctual prevention o# compliance
The doctrine o# constructive compliance applies to
potestative and mi'ed conditions.
iii. 1. Possi5le
& condition is possible when it is capable o# reali6ation
according to nature, law, public policy or good customs.
2. Impossi5le
& condition is impossible when it is not capable o#
reali6ation according to nature, law, public policy or good
customs.
The e##ect o# an impossible condition is to annul the
obligation :&rticle 11D;. The e##ect o# an impossible
condition regarding donations and succession is di##erent.
7n donations and succession, an impossible condition is
simply disregarded. The distinction can be e'plained by
the #act that &rticle 11D re#ers to onerous obligation
whereas donations and succession are gratuitous.
>owever, i# the obligation is divisible and that part o# the
obligation is not una##ected by the impossible condition,
then the obligation is valid :&rticle 11D;.
Mustice Aaras distinguishes as #ollows9
1. Aositive condition to do something impossible
Void condition and obligation
2. Negative condition not to do something impossible
*isregard the condition, the obligation is valid
. Negative condition not to do something illegal
Valid condition and obligation
iv. 1. Positive
& condition is positive when the condition involves the
per#ormance o# an act.
2. ,egative
& condition is negative when the condition involves the
non2per#ormance o# an act.
v. 1. Divisi5le
& condition is divisible when the condition is susceptible
o# partial reali6ation.
2. Indivisi5le
& condition is indivisible when the condition is not
susceptible o# partial reali6ation.
vi. 1. ;on"unctive
& condition is con)unctive when there are several
conditions, all o# which must be reali6ed.
2. Alternative
& condition is alternative when there are several
conditions, only one o# which must be reali6ed.
vii. 1. Express
& condition is e'press when the condition is stated
e'pressly.
2. Implied
& condition is implied when the condition is tacit.
c. 7er :&rticles 11E211ED;
Art. 1193. #bligations for whose fulfillment a da" certain
has been fi-ed% shall be demandable onl" when that da" comes.
#bligations with a resolutor" period take effect at once%
but terminate upon arrival of the da" certain.
A da" certain is understood to be that which must
necessaril" come% although it ma" not be known when.
,f the uncertaint" consists in whether the da" will come
or not% the obligation is conditional% and it shall be regulated b"
the rules of the preceding ?ection.
Art. 1194. ,n case of loss% deterioration or improvement
of the thing before the arrival of the da" certain% the rules in
article ''CD shall be observed.
Art. 1195. An"thing paid or delivered before the arrival of
the period% the obligor being unaware of the period or believing
that the obligation has become due and demandable% ma" be
recovered% with the fruits and interests.
Art. 1196. 0henever in an obligation a period is
designated% it is presumed to have been established for the
benefit of both the creditor and the debtor% unless from the
tenor of the same or other circumstances it should appear that
the period has been established in favor of one or of the other.
Art. 1197. ,f the obligation does not fi- a period% but
from its nature and the circumstances it can be inferred that a
period was intended% the courts ma" fi- the duration thereof.
The courts shall also fi- the duration of the period when it
depends upon the will of the debtor.
,n ever" case% the courts shall determine such period as
ma" under the circumstances have been probabl" contemplated
b" the parties. #nce fi-ed b" the courts% the period cannot be
changed b" them.
Art. 1198. The debtor shall lose ever" right to make use
of the period+
5'6 0hen after the obligation has been contracted% he
becomes insolvent% unless he gives a guarant" or
securit" for the debt3
546 0hen he does not furnish to the creditor the guaranties
or securities which he has promised3
576 0hen b" his own acts he has impaired said guaranties
or securities after their establishment% and when
through a fortuitous event the" disappear% unless he
immediatel" gives new ones e.uall" satisfactor"3
5<6 0hen the debtor violates an" undertaking% in
consideration of which the creditor agreed to the period3
5)6 0hen the debtor attempts to abscond.
& term is a length o# time which, e'erting an in#luence on an
obligation as a conse-uence o# )uridical acts, suspends its
demandability or determines its e'tinguishment.
& term is a #uture and certain event :i.e. death;
"hen the debtor binds himsel# to pay when his means permit him to
do so, the obligation is one with a term :&rticle 11D1;. &lthough
&rticle 11D1 loo+s li+e a condition dependent on the sole will o# the
debtor, the law treats it as a term.
7# prepayment is made without the debtor being aware that the
period had not yet arrived, then the thing and the #ruits can be
recovered :&rticle 11E3;. 7# prepayment is made and the debtor
was aware that the period had not yet arrived, then the debtor
waives the bene#it o# the term.
&n obligation was entered on Bay 1, 2112 between & and =.
The obligation is to be per#ormed on 0ctober 1, 2112. &
delivers on .eptember 1, 2112 by mista+e to =. & discovers his
mista+e and tells = to return the ob)ect and the #ruits delivered.
&rticle 11E3 does not answer who is entitled to the #ruits which
have been produced in the meantime :Bay 1, 2112 to 0ctober
1, 2112;.
&ccording to the .panish Code, the debtor :&; can only #ruits.
There are 2 views9
i. The debtor is entitled to the #ruits produced in the meantime
:Tolentino;
This is because delivery is not re-uired until 0ctober 1.
ii. The creditor is entitled to the #ruits since the obligation is
demandable only when the period arrives
This is because the obligation is already e'isting although
it is not yet demandable.
Aro#essor =alane believes that the #ruits belong to the
debtor. "hy would &rticle 11E3 allow the debtor to recover
the #ruits i# he should still give them bac+ a#ter the term
comes.
7nstances when the Fruits Cannot be ,ecovered
i. "hen the obligation is reciprocal and there has been
prepayment o# both sides
ii. "hen the obligation is a loan and the debtor is bound to pay
interest
iii. "hen the period is e'clusively #or the creditors bene#it
iv. "hen the debtor is aware o# the period and pays anyway <
waiver
The presumption is that the period is #or the bene#it o# both the
debtor and the creditor :&rticle 11E4;. The e##ect o# this
presumption is that the creditor cannot demand payment be#ore the
period arrives nor can the debtor demand the creditor to accept
payment be#ore the period arrives.
Example: & issues a promissory note to = demandable on 0ctober
13. & cannot insist on prepayment nor can = insist that he be paid
on .eptember.
7# the period is #or the bene#it o# the creditor only, the creditor can
demand per#ormance at any time, but the debtor cannot compel
him to accept payment be#ore the period e'pires.
7# the period is #or the bene#it o# the debtor only, the debtor can he
may oppose a premature demand #or payment, but may validly pay
at any time be#ore the period e'pires.
"hen the obligation is worded such that payment it to be made
Owithin 4 monthsP, the period is #or the bene#it o# the debtor.
"hen the obligation is worded such that payment is to be made
Oon or be#oreP, the period is #or the bene#it o# the debtor.
The debtor shall lose every right to ma+e use o# the period9
i. "hen a#ter the obligation has been contracted, the debtor
becomes insolvent unless he gives a guaranty or security #or the
debt :&rticle 11ED :1;;
The insolvency here need not be )udicial. 7t can be actual
insolvency.
ii. "hen he does not #urnish to the creditor the guaranties or
securities which he has promised :&rticle 11ED :2;;
iii. "hen by his own acts he has impaired the said guaranties or
securities a#ter their establishment, and when through a
#ortuitous event hey disappear, unless he immediately gives new
ones e-ually satis#actory :&rticle 11ED :;;
iv. "hen the debtor violates any underta+ing, in consideration o#
which the creditor agreed :&rticle 11ED :$;;
v. "hen the debtor attempts to abscond :&rticle 11ED :3;;
vi. "hen the creditor is deceived on the substance or -uality o# the
thing pledged, the creditor may either claim another thing in its
stead or demand immediate payment o# the principal obligation
:&rticle 211E;
Types o# Aeriods
i. 1. +uspensive :ex die;
The period is suspensive when the obligation becomes
demandable only upon the arrival o# the period.
2. Resolutor8 (in diem;
The period is resolutory when the per#ormance must
terminate upon the arrival o# the period.
ii. 1. Legal
& period is legal when it is granted by law.
2. >oluntar8
& period is voluntary when it is stipulated by the parties.
. <udicial
& period is )udicial when it is #i'ed by the courts.
7# the obligation does not #i' a period, but #rom its nature
and the circumstances it can be in#erred that a period
was intended, the courts may #i' the duration thereo#
:&rticle 11EC, 1
st
?;.
2 steps involved in an action #or #i'ing a period9
1. The court should determine that the obligation does
not #i' a period but it can be in#erred that a period is
intended due to the circumstances 0, the period is
dependent on debtors will.
2. Court shall decide what period was probably
contemplated by the parties.
Court should ma+e an educated guess.
Court should not #i' a period which it thin+s is #air
or reasonable but rather the period which was
probably contemplated by the parties.
5enerally, you cannot as+ #or speci#ic per#ormance
because #i'ing a period contemplates something in the
#uture, hence to as+ #or speci#ic per#ormance would be
illogical.
7nstances "hen Court Bay Fi' a Aeriod
1. &rticle 11EC, ?1
Art. 1197$ %1. ,f the obligation does not
fi- a period% but from its nature and the
circumstances it can be inferred that a period
was intended% the courts ma" fi- the duration
thereof.
/'ceptions
a. &rticles 14D2 and 14DC, 1
st
sentence
Art. 1682. The lease of a piece of
rural land% when its duration has not been
fi-ed% is understood to have been for all
the time necessar" for the gathering of
the fruits which the whole estate leased
ma" "ield in one "ear% or which it ma"
"ield once% although two or more "ears
have to elapse for the purpose.
Art. 1687$ 1
st
sentence. ,f the
period for the lease has not been fi-ed% it
is understood to be from "ear to "ear% if
the rent agreed upon is annual3 from
month to month% if it is monthl"3 from
week to week% if the rent is weekl"3 and
from da" to da"% if the rent is to be paid
dail".
b. Pacto de retro sales :&rticle 1414;
Art. 1606. The right referred to in
article 'AE'% in the absence of an e-press
agreement% shall last four "ears from the
date of the contract.
?hould there be an agreement% the
period cannot e-ceed ten "ears.
8owever% the vendor ma" still
e-ercise the right to repurchase within
thirt" da"s from the time final judgment
was rendered in a civil action on the basis
that the contract was a true sale with
right to repurchase.
c. Contract o# services #or an inde#inite period
Court cannot #i' a period or else it would
amount to involuntary servitude.
2. &rticle 11EC, ?2
Art. 1197$ %2. The courts shall also fi-
the duration of the period when it depends upon
the will of the debtor.
. &rticle 11E1, ?
Art. 1191$ %3. The court shall decree the
rescission claimed% unless there be just cause
authori$ing the fi-ing of a period.
$. &rticle 14DC, 2
nd
,
rd
and $
th
sentences
Art. 1687$ 2
n+
$ 3
r+
an+ 4
t"
sentences.
8owever% even though a monthl" rent is paid%
and no period for the lease has been set% the
courts ma" fi- a longer term for the lease after
the lessee has occupied the premises for over
one "ear. ,f the rent is weekl"% the courts ma"
likewise determine a longer period after the
lessee has been in possession for over si-
months. ,n case of dail" rent% the courts ma"
also fi- a longer period after the lessee has
sta"ed in the place for over one month.
3. &rticle 11D1
Art. 1180. 0hen the debtor binds himself
to pa" when his means permit him to do so% the
obligation shall be deemed to be one with a
period% subject to the provisions of Article ''DB.
iii. 1. /'press
& period is e'press when the period is speci#ically stated.
2. Tacit
& period is tacit when a person underta+es to do some
wor+ which can be done only during a particular season.
iv. 1. .riginal
2. :race
& grace period is an e'tension #i'ed by the parties or by
the court.
v. 1. De!inite
& period is de#inite when it re#ers to a #i'ed +nown date
or time.
2. Inde!inite
& period is inde#inite when it re#ers to an event which will
necessarily happen but the date o# its happening is
un+nown :i.e. death;
2. According to Pluralit" of #bject :&rticles 11EE21214;
Art. 1199. A person alternativel" bound b" different
prestations shall completel" perform one of them.
The creditor cannot be compelled to receive part of one and
part of the other undertaking.
Art. 1200. The right of choice belongs to the debtor% unless
it has been e-pressl" granted to the creditor.
The debtor shall have no right to choose those prestations
which are impossible% unlawful or which could not have been the
object of the obligation.
Art. 1201. The choice shall produce no effect e-cept from
the time it has been communicated.
Art. 1202. The debtor shall lose the right of choice when
among the prestations whereb" he is alternativel" bound% onl" one
is practicable.
Art. 1203. ,f through the creditor:s acts the debtor cannot
make a choice according to the terms of the obligation% the latter
ma" rescind the contract with damages.
Art. 1204. The creditor shall have a right to indemnit" for
damages when% through the fault of the debtor% all the things which
are alternativel" the object of the obligation have been lost% or the
compliance of the obligation has become impossible.
The indemnit" shall be fi-ed taking as a basis the value of
the last thing which disappeared% or that of the service which last
became impossible.
Damages other than the value of the last thing or service
ma" also be awarded.
Art. 1205. 0hen the choice has been e-pressl" given to the
creditor% the obligation shall cease to be alternative from the da"
when the selection has been communicated to the debtor.
>ntil then the responsibilit" of the debtor shall be governed
b" the following rules+
5'6 ,f one of the things is lost through a fortuitous event% he
shall perform the obligation b" delivering that which the
creditor should choose from among the remainder% or that
which remains if onl" one subsists3
546 ,f the loss of one of the things occurs through the fault of
the debtor% the creditor ma" claim an" of those subsisting%
or the price of that which% through the fault of the former%
has disappeared% with a right to damages3
576 ,f all the things are lost through the fault of the debtor% the
choice b" the creditor shall fall upon the price of an" one of
them% also with indemnit" for damages.
The same rules shall be applied to obligations to do or not to
do in case one% some or all of the prestations should become
impossible.
Art. 1206. 0hen onl" one prestation has been agreed upon%
but the obligor ma" render another in substitution% the obligation is
called facultative.
The loss or deterioration of the thing intended as a
substitute% through the negligence of the obligor% does not render
him liable. Gut once the substitution has been made% the obligor is
liable for the loss of the substitute on account of his dela"%
negligence or fraud.
a. Alternati(e
&n obligation is alternative when several ob)ects or prestations are
due, but the payment or per#ormance o# 1 o# them would be
su##icient.
& promises to deliver either 311 +gs o# rice or 1111 liters o# gas.
The obligation is alternative. The debtor cannot per#orm the
obligation by giving 231 +gs o# rice and 311 liters o# gas unless the
creditor agrees. 7n which case there is a novation.
General *ule+ The right o# choice the right to belongs to the
debtor.
Exceptions:
i. "hen it is e'pressly granted to the creditor
ii. "hen it is agreed upon by the parties that a
rd
person shall
ma+e the choice
The act o# ma+ing the choice is called concentration. 0nce the
choice has been made, then the obligation is concentrated in 1
ob)ect.
"hoever has the right o# choice must communicate it to the other
party :&rticle 1211;. The creditor has to communicate his choice to
the debtor so that the debtor will +now. 0n the other hand, in .ng
:uan vs. ;entur8 Insurance, the .upreme Court said that the
purpose #or notice to the creditor is to give the creditor the
opportunity to e'press his consent or to impugn the election made
by the debtor. Aro#essor =alane does not agree with this statement
since the creditor does not have the right to impugn, otherwise, the
obligation would not be an alternative obligation. & better reason
according to Aro#essor =alane is to give the creditor time to prepare.
Example: The choice is either to give diamond ring or a Bercedes
=en6. The debtor should noti#y the creditor so the creditor can
either rent a sa#ety deposit bo' or prepare a garage.
>owever, according to Aro#essor =alane, the best reason is because
once the choice is communicated, the obligation ceases to be
alternative. The ris+ o# loss belongs to the creditor now.
Choice =elongs to the *ebtor
i. "hen through #ortuitous event or through the debtors acts,
there is only 1 prestation le#t, the obligation ceases to be
alternative :&rticle 1212;.
ii. "hen the choice o# the debtor is limited through the creditors
own acts, then the debtor has the remedy o# resolution :&rticle
11E1; plus damages :&rticle 121;
iii. "hen all the things are lost due to the debtors #ault, the
creditor can sue #or damages :&rticle 121$;
iv. "hen some things are lost due to the debtors #ault but there
are still some things remaining, then the debtor can choose #rom
whats le#t
v. "hen all the things are lost due to a #ortuitous event, the
vi. "hen all but 1 o# the things are lost due to a #ortuitous event
and the last ob)ect is lost through the debtors #ault, then the
creditor can sue #or damages
vii. "hen all but 1 o# the things are lost through the debtors own
acts and the last ob)ect is lost through a #ortuitous event, the
Choice =elongs to the Creditor :&rticle 1213;
i. "hen 1 or some o# the ob)ects are lost through #ortuitous
events, then the creditor chooses #rom the remainder
ii. "hen 1 or some o# the ob)ects are lost due to the debtors #ault,
the creditor may choose #rom the remainder or get the value o#
any o# the ob)ects lost plus damages in either case
iii. "hen all o# the things are lost due to the debtors #ault, the
creditor can get the value o# any o# the ob)ects lost plus
damages
iv. "hen some are lost through the debtors #ault, the creditor
chooses #rom the remainder
v. "hen all the ob)ects are lost due to a #ortuitous event, then the
vi. "hen all the ob)ects are lost due to the creditors #ault, the
b. )acultati(e
&n obligation is #acultative when only 1 ob)ect or prestation has
been agreed upon by the parties to the obligation, but the debtor
may deliver or render another in substitution.
Facultative obligations bear a resemblance to alternative obligations
particularly when the choice in an alternative obligation is with the
debtor.
7n a #acultative obligation, the right o# choice is always with the
debtor.
7n an alternative obligation, i# 1 o# the prestations is impossible,
then there are other choices. 7n a #acultative obligation, i# the
principal obligation is impossible, then everything is annulled.
7n theory, it is easy to distinguish a #acultative obligation #rom an
alternative obligation. 7n practice, it is di##icult to do so since most
o# the time, the words are ambiguous. For e'ample, 7 promise to
deliver my >onda &ccord, but 7 reserve my right to substitute this
with my 5old ,ole'. 7n this case, it is not very clear whether the
obligation is alternative or #acultative. &ccording to Aro#essor
=alane, the rule is that one must loo+ at the circumstances o# the
obligation. 7# it is impossible to determine which one, then the
doubt should be resolved in the #avor o# an alternative obligation
since its e##ects are less radical.

. According to Pluralit" of ?ubject :&rticles 121C21222;
Art. 1207. The concurrence of two or more creditors or of
two or more debtors in one and the same obligation does not impl"
that each one of the former has a right to demand% or that each one
of the latter is bound to render% entire compliance with the
prestation. There is a solidar" liabilit" onl" when the obligation
e-pressl" so states% or when the law or the nature of the obligation
re.uires solidarit".
Art. 1208. ,f from the law% or the nature or the wording of
the obligations to which the preceding article refers the contrar"
does not appear% the credit or debt shall be presumed to be divided
into as man" shares as there are creditors or debtors% the credits or
debts being considered distinct from one another% subject to the
*ules of Court governing the multiplicit" of suits.
Art. 1209. ,f the division is impossible% the right of the
creditors ma" be prejudiced onl" b" their collective acts% and the
debt can be enforced onl" b" proceeding against all the debtors. ,f
one of the latter should be insolvent% the others shall not be liable
for his share.
Art. 1210. The indivisibilit" of an obligation does not
necessaril" give rise to solidarit". 2or does solidarit" of itself impl"
indivisibilit".
Art. 1211. ?olidarit" ma" e-ist although the creditors and
the debtors ma" not be bound in the same manner and b" the same
periods and conditions.
Art. 1212. 9ach one of the solidar" creditors ma" do
whatever ma" be useful to the others% but not an"thing which ma"
be prejudicial to the latter.
Art. 1213. A solidar" creditor cannot assign his rights
without the consent of the others.
Art. 1214. The debtor ma" pa" an" one of the solidar"
creditors3 but if an" demand% judicial or e-trajudicial% has been
made b" one of them% pa"ment should be made to him.
Art. 1215. 2ovation% compensation% confusion or remission
of the debt% made b" an" of the solidar" creditors or with an" of the
solidar" debtors% shall e-tinguish the obligation% without prejudice
to the provisions of article '4'D.
The creditor who ma" have e-ecuted an" of these acts% as
well as he who collects the debt% shall be liable to the others for the
share in the obligation corresponding to them.
Art. 1216. The creditor ma" proceed against an" one of the
solidar" debtors or some or all of them simultaneousl". The
demand made against one of them shall not be an obstacle to those
which ma" subse.uentl" be directed against the others% so long as
the debt has not been full" collected.
Art. 1217. Pa"ment made b" one of the solidar" debtors
e-tinguishes the obligation. ,f two or more solidar" debtors offer to
pa"% the creditor ma" choose which offer to accept.
8e who made the pa"ment ma" claim from his co/debtors
onl" the share which corresponds to each% with the interest for the
pa"ment alread" made. ,f the pa"ment is made before the debt is
due% no interest for the intervening period ma" be demanded.
0hen one of the solidar" debtors cannot% because of his
insolvenc"% reimburse his share to the debtor pa"ing the obligation%
such share shall be borne b" all his co/debtors% in proportion to the
debt of each.
Art. 1218. Pa"ment b" a solidar" debtor shall not entitle him
to reimbursement from his co/debtors if such pa"ment is made
after the obligation has prescribed or become illegal.
Art. 1219. The remission made b" the creditor of the share
which affects one of the solidar" debtors does not release the latter
from his responsibilit" towards the co/debtors% in case the debt had
been totall" paid b" an"one of them before the remission was
effected.
Art. 1220. The remission of the whole obligation% obtained
b" one of the solidar" debtors% does not entitle him to
reimbursement from his co/debtors.
Art. 1221. ,f the thing has been lost or if the prestation has
become impossible without the fault of the solidar" debtors% the
obligation shall be e-tinguished.
,f there was fault on the part of an" one of them% all shall be
responsible to the creditor% for the price and the pa"ment of
damages and interest% without prejudice to their action against the
guilt" or negligent debtor.
,f through a fortuitous event% the thing is lost or the
performance has become impossible after one of the solidar"
debtors has incurred in dela" through the judicial or e-trajudicial
demand upon him b" the creditor% the provisions of the preceding
paragraph shall appl".
Art. 1222. A solidar" debtor ma"% in actions filed b" the
creditor% avail himself of all defenses which are derived from the
nature of the obligation and of those which are personal to him% or
pertain to his own share. 0ith respect to those which personall"
belong to the others% he ma" avail himself thereof onl" as regards
that part of the debt for which the latter are responsible.
a. 5in/le
&n obligation is single when there is only 1 debtor and 1 creditor.
b. Aoint
&n obligation is )oint when each o# the debtor is liable only #or a
proportional part o# the debt, and each creditor is entitled only to a
partial part o# the credit.
& )oint obligation is also called mancomunada, pro rata,
mancomunada simple.
General *ule+ The obligation is )oint since )oint obligations are less
onerous.
Exceptions:
i. &greement o# the parties
ii. 8aw :i.e. tort #easors are solidarily liable;
iii. Nature o# the obligation
&ccording to many commentators, this is super#luous since a
solidary obligation arises because o# law.
E++E,7IAL ,A7ERE: There are as many obligations as there are
creditors multiplied by as many debtors.
Types o# Moint 0bligations
i. Active "oint
7n active )oint, there are multiple creditors.
&, =, and C are creditors, and T is the debtor. 7# the
obligation is )oint, there are obligations < Ts obligation to
&, Ts obligation to =, and Ts obligation to C.
The demand o# 1 creditor on 1 debtor will not constitute a
demand on the others.
The prescription o# 1 o# the debts will not a##ect the other
debts.
ii. Passive "oint
7n passive )oint, there are multiple debtors.
T, H, and S are debtor, and & is the creditor. 7# the
obligation is )oint, there are obligations < Ts obligation to
&, Hs obligation to &, and Ss obligation to &.
The demand o# 1 creditor on 1 debtor will not constitute a
demand on the others.
The prescription o# 1 o# the debts will not a##ect the other
debts.
The insolvency o# 1 o# the debtors will not a##ect the burden
o# the other debtors.
iii. 9ixed "oint
7n mi'ed )oint, there are multiple creditors and debtors.
T, H, and S are debtors, and &, =, and C are the creditors. 7#
the obligation is )oint, there are E obligations < Ts obligation
to &, Ts obligation to =, Ts obligation to C, Hs obligation &,
Hs obligation to =, Hs obligation to C, Ss obligation to &, Ss
obligation to =, and Ss obligation to C.
c. 5oli+ar!
&n obligation is solidary when any o# the debtors can be hled liable
#or the entire obligation, and any o# the creditors is entitled to
demand the entire obligation.
& solidary obligation is also called )oint and several, )oint and
individual, and in solidum.
7# a promissory says, O7 promise to pay,P and it is signed by I, =,
and B, then the obligation is solidary.
&n obligation is solidary when
i. The parties so agree
ii. "hen the law so provides :i.e. tort #easors are solidarily liable;
iii. "hen nature o# the obligation re-uires the obligation to be
solidary
&ccording to many commentators, this is super#luous since a
solidary obligation arises because o# law.
Types o# .olidary 0bligations
i. Active solidar8
7n active solidary, there are multiple creditors.
Characteristics o# &ctive .olidary
& credit once paid is shared e-ually among the creditors
unless a di##erent intention appears.
The debtor may pay any o# the creditors, but i# any
demand, )udicial or e'tra)udicial is made on him, he
must pay only to the one demanding payment :&rticle
121$;.
&rticle 121$ can be open to abuse. For e'ample,
i# & writes H demanding the per#ormance o# the
obligation and & ta+es no #urther action, = and C
cannot demand #rom H. This is open to collusion.
.uppose &, =, and C are creditors o# T. &
demands the payment o# the loan worth AE,111.
T instead pays to =. The payment to = will be
treated as a payment to a
rd
person. There#ore,
T must still pay & the amount o# the loan minus
the share o# =. .o, T has to pay A4,111 to &.
ii. Passive solidar8
7n passive solidary, there are multiple debtors.
Characteristics o# Aassive .olidary
/ach debtor may be re-uired to pay the entire obligation but
a#ter payment, he can recover #rom his co2debtors their
respective shares.
iii. 9ixed solidar8
7n mi'ed solidary, there are multiple debtors and creditors.
Characteristics o# Bi'ed .olidary
& credit once paid is shared e-ually among the creditors
unless a di##erent intention appears.
The debtor may pay any o# the creditors, but i# any
demand, )udicial or e'tra)udicial, is made on him, he
must pay only to the one demanding payment :&rticle
121$;.
&ccording to Aro#essor =alane, &rticle 121$ is
problematic. For e'ample, T owes &, = and C. =
ma+es an e'tra)udicial demand on T. T cannot pay &
or C anymore. The problem is when = does not #ollow
up the demand, it can +eep the obligation in
suspension inde#initely.
The rule in the .panish Code was that the debtor
cannot pay the other non2demanding solidary
creditors only i# one o# the solidary creditor ma+es a
)udicial demand.
.uppose the debtor upon whom the demand is made
pays a creditor who did not ma+e a demand. The
payment is considered a payment to a third person.
There#ore the debtor can still be made to pay by the
one who made the demand on him.
Example: T owes & and =. = demanded #rom T. T
pays &. T must still pay = A4111.
=ut the payment to the demanding creditor can be
reduced by the share o# the paid creditor.
The debtor can still recover #rom the paid creditor
:un)ust enrichment;.
.uppose & and = are creditors while T and H are
debtors. & demands #rom H. Now, T pays =. The
payment o# T to = e'tinguishes the entire solidary
obligation. T is not bound by the demand by & on H.
There is no violation o# &rticle 121$.
/ach debtor may be re-uired to pay the entire obligation
but a#ter payment, he can recover #rom his co2debtors
their respective shares.
7s there a con#lict between &rticle 1212 and &rticle 1213
( &rticle
1212 provides that each o# the solidary creditors may do whatever
may be use#ul to the others, but not anything which may be
pre)udicial to the latter. =ut &rticle 1213 allows novation,
compensation, con#usion or remission on the part o# the solidary
creditor. "hy( &ccording to Aro#essor =alane, this is absurd.
0ne way o# reconciling is that under &rticle 1213, any creditor can
remit or condone the obligation. =ut because the obligation is
e'tinguished, the condoning creditor must be liable #or the other
creditors share. >ere, there is no pre)udice.
>owever, another problem arises i# the condoning creditor later on
becomes insolvent.
Art. 1219. The remission made b" the creditor of the share
which affects one of the solidar" debtors does not release
the latter from his responsibilit" towards the co/debtors% in
case the debt had been totall" paid b" an"one of them before
the remission was effected.
& is the creditor o# ", T, H, and S. ", T, H, and S owe & A4,111.
The obligation is solidary. & remits Hs share < A1,311. & can go
a#ter T #or only A$,311. The remission bene#its T initially since T
only has to pay A$,311 instead o# 4,111. >owever, T can only
recover A,111 #rom " and S.
The obligation is solidary. & remits Hs share < A1,311. & can go
a#ter H #or the balance since H is still a solidary debtor #or the
balance. 0therwise, the e##ect o# remission would be e'tended.
>owever, H can recover A$,311 #rom ", T, and S.
The obligation is solidary. & remits Hs share < A1,311. S becomes
insolvent. & sues " #or the balance o# A$,311. &rt. 121C must be
applied. Thus, the insolvency o# S is shouldered by ", T, and H.
.o, " can recover A2,111 #rom T and A311 #rom H instead o#
_
Art. )%)%. /ach one o# the solidary creditors may do whatever may be use#ul to the
others, but not anything which may be pre)udicial to the latter.
Art. )%)$. Novation, compensation, con#usion or remission o# the debt, made by
any o# the solidary creditors or with any o# the solidary debtors, shall e'tinguish the obligation,
without pre)udice to the provisions o# article 121E.
The creditor who may have e'ecuted any o# these acts, as well as he who collects the debt,
shall be liable to the others #or the share in the obligation corresponding to them. &rt. 1213.
Novation, compensation, con#usion or remission o# the debt, made by any o# the
solidary creditors or with any o# the solidary debtors, shall e'tinguish the obligation, without
pre)udice to the provisions o# article 121E.
The creditor who may have e'ecuted any o# these acts, as well as he who collects the
debt, shall be liable to the others #or the share in the obligation corresponding to them.
collecting A,111. " has to shoulder A311 as a loss due to Ss
insolvency.
Iinds o# *e#enses
i. ,eal de#enses
These are de#enses derived #rom the nature o# the obligation.
& real de#ense is a total de#ense. 7t bene#its all the debtors.
ii. Aersonal de#enses
Aersonal de#enses may either be total or partial de#enses.
&n e'ample o# a total personal de#ense is i# the consent o#
the debtors were all vitiated.
&n e'ample o# a partial de#ense is that a certain amount is
not yet due. 7t is partial since there may be amounts which
are already due. Thus, the debtor has to pay #or those
amounts which are due.
iii. *e#enses which are personal to the other co2debtors
The debtor can only avail himsel# o# these de#enses only with
regard to the part o# the debt which his co2debtors are
responsible #or.
These de#enses are partial.
The debtor sued can invo+e all three +inds o# de#enses. The
di##erence is whether such de#ense would result in total or partial
e'culpation.
$. According to Performance :&rticles 12221223;
Art. 1223. The divisibilit" or indivisibilit" of the things that
are the object of obligations in which there is onl" one debtor and
onl" one creditor does not alter or modif" the provisions of Chapter
4 of this Title.
Art. 1224. A joint indivisible obligation gives rise to
indemnit" for damages from the time an"one of the debtors does
not compl" with his undertaking. The debtors who ma" have been
read" to fulfill their promises shall not contribute to the indemnit"
be"ond the corresponding portion of the price of the thing or of the
value of the service in which the obligation consists.
Art. 1225. @or the purposes of the preceding articles%
obligations to give definite things and those which are not
susceptible of partial performance shall be deemed to be
indivisible.
0hen the obligation has for its object the e-ecution of a
certain number of da"s of work% the accomplishment of work b"
metrical units% or analogous things which b" their nature are
susceptible of partial performance% it shall be divisible.
8owever% even though the object or service ma" be
ph"sicall" divisible% an obligation is indivisible if so provided b" law
or intended b" the parties.
,n obligations not to do% divisibilit" or indivisibilit" shall be
determined b" the character of the prestation in each particular
case.
*ivisible and indivisible obligations have nothing to do with the ob)ect
o# the prestation. & common misconception is i# the ob)ect o# the
prestation is divisible, then the obligation is also divisible.
a. *ivisible
&n obligation is divisible when it is susceptible to partial
per#ormance.
b. 7ndivisible
&n obligation is indivisible when it cannot be validly per#ormed in
parts.
General *ule+ 0bligations are indivisible.
Exceptions:
i. "hen the parties provide otherwise :&rticles 1223,
rd
?, 12$D
;
ii. "hen the nature o# the obligation necessarily entails the
per#ormance o# the obligation in parts
Example: >iring a security guard to guard #rom Dpm to 2am
daily #or 4 months. This obligation cannot be per#ormed
indivisibly. Hou cant compress time.
"hen the obligation has #or its ob)ect the e'ecution o# a certain
number o# days o# wor+, the accomplishment o# wor+ by
metrical units, or analogous things, which by their nature are
susceptible o# partial per#ormance, it shall be divisible :&rticle
1223, 2
nd
?;
Exception to t"e Exception: >owever, even though the
ob)ect or service may be physically divisible, an obligation is
indivisible i#
1. .o provided by law% or
2. 7ntended by the parties.
iii. "hen the law provides otherwise
There are provisions on payment which provide that
per#ormance may be divisible.
*ivisibility o# the ob)ect does not mean that the obligation is also
divisible. =ut indivisibility o# the ob)ect necessarily means an indivisible
obligation.
The test o# divisibility o# an obligation is whether or not it is susceptible
o# partial per#ormance.
For e'ample, i# T is supposed to deliver 1111 +ilos o# sugar, this
does not mean that T can deliver the sugar in installments.
Art. )%*/. !nless there is an e'press stipulation to that e##ect, the creditor cannot be
compelled partially to receive the prestations in which the obligation consists. Neither may the
debtor be re-uired to ma+e partial payments.
>owever, when the debt is in part li-uidated and in part unli-uidated, the creditor may
demand and the debtor may e##ect the payment o# the #ormer without waiting #or the
li-uidation o# the latter.
3. According to ?anction for Greach :&rticles 12242121;
Art. 1226. ,n obligations with a penal clause% the penalt"
shall substitute the indemnit" for damages and the pa"ment of
interests in case of noncompliance% if there is no stipulation to the
contrar". 2evertheless% damages shall be paid if the obligor refuses
to pa" the penalt" or is guilt" of fraud in the fulfillment of the
obligation.
The penalt" ma" be enforced onl" when it is demandable in
accordance with the provisions of this Code.
Art. 1227. The debtor cannot e-empt himself from the
performance of the obligation b" pa"ing the penalt"% save in the
case where this right has been e-pressl" reserved for him. 2either
can the creditor demand the fulfillment of the obligation and the
satisfaction of the penalt" at the same time% unless this right has
been clearl" granted him. 8owever% if after the creditor has decided
to re.uire the fulfillment of the obligation% the performance thereof
should become impossible without his fault% the penalt" ma" be
enforced.
Art. 1228. Proof of actual damages suffered b" the creditor
is not necessar" in order that the penalt" ma" be demanded.
Art. 1229. The judge shall e.uitabl" reduce the penalt"
when the principal obligation has been partl" or irregularl"
complied with b" the debtor. 9ven if there has been no
performance% the penalt" ma" also be reduced b" the courts if it is
ini.uitous or unconscionable.
Art. 1230. The nullit" of the penal clause does not carr" with
it that of the principal obligation.
The nullit" of the principal obligation carries with it that of
the penal clause.
a. #o penal clause
'. 9it" penal clause
& penal clause is an accessory underta+ing to assume greater
liability in case o# breach (+++ vs. 9oon4al6).
Aenal clauses are governed by &rticles 22242222D
, the provisions
on li-uidated damages since a penal clause is the same as
li-uidated damages (Lam5ert vs. ?ox).
Aenal clauses may be reduced by the courts i# unconscionable.
`
Art. %%%&. 8i-uidated damages are those agreed upon by the parties to a contract, to be
paid in case o# breach thereo#.
Art. %%%1. 8i-uidated damages, whether intended as an indemnity or a penalty, shall
be e-uitably reduced i# they are ini-uitous or unconscionable.
Art. %%%/. "hen the breach o# the contract committed by the de#endant is not the one
contemplated by the parties in agreeing upon the li-uidated damages, the law shall determine
the measure o# damages, and not the stipulation.
2 Functions o# a Aenal Clause :+++ vs. 9oon4al6;
i. To provide li-uidated damages
The creditor can demand li-uidated damages without having
to prove actual damages.
The only limitation that the courts will reduce the li-uidated
damages i# the same is scandalously unconscionable.
ii. To strengthen the coercive #orce o# the obligation by the threat
o# greater responsibility in case o# breach
.tipulates a penalty which is greater than one without a
penal clause. Thus, Ro5esB?rancisco states that $N interest
is not a penal clause.
2 Characteristics o# a Aenal Clause
i. .ubsidiary or alternative :&rticle 122C;
General *ule+ !pon breach o# the obligation, the creditor
has to choose whether to demand the principal or the
penalty.
Exception: The principal obligation and the penalty can be
demanded when the penal clause is )oint or cumulative. This
occurs when it is the creditor has been clearly granted such
right :&rticle 122C, 2
nd
sentence;, either e'pressly or
impliedly. The implied right must be one ascertainable #rom
the nature o# the obligation. &n e'ample is in the
construction industry where the contractor must pay the
penalty i# the wor+ is completed a#ter the stipulated time
#rame but must also #inish the agreed construction.
ii. /'clusive :&rticle 1224;
General *ule+ The penalty clause ta+es the place o# other
damages :thats why in imposing a penalty clause, ma+e
sure that the penalty is sti##;.
Exception: =oth the penalty and actual damages may be
recovered in the #ollowing9
1. /'press stipulation
2. ,e#usal by the debtor to pay the penalty
. The debtor is guilty o# #raud :malice; in the per#ormance
o# the obligation.
7n Pamintuan vs. ;A the .upreme Court said that the
e'cess o# damages absorbs the penalty. Aro#essor
=alane said that this is a wrong application. Hou can
demand both the e'cess and the penalty.

8. Extin/uis"ent o. ,'li/ations
Art. 1231. #bligations are e-tinguished+
5'6 G" pa"ment or performance+
546 G" the loss of the thing due+
576 G" the condonation or remission of the debt3
5<6 G" the confusion or merger of the rights of creditor and
debtor3
5)6 G" compensation3
5A6 G" novation.
#ther causes of e-tinguishment of obligations% such as
annulment% rescission% fulfillment of a resolutor" condition% and
prescription% are governed elsewhere in this Code.
1. Pa"ment or Performance :&rticles 122 < 1231;
Art. 1232. Pa"ment means not onl" the deliver" of mone"
but also the performance% in an" other manner% of an obligation.
Art. 1233. A debt shall not be understood to have been paid
unless the thing or service in which the obligation consists has
been completel" delivered or rendered% as the case ma" be.
Art. 1234. ,f the obligation has been substantiall" performed
in good faith% the obligor ma" recover as though there had been a
strict and complete fulfillment% less damages suffered b" the
obligee.
Art. 1235. 0hen the obligee accepts the performance%
knowing its incompleteness or irregularit"% and without e-pressing
an" protest or objection% the obligation is deemed full" complied
with.
Art. 1236. The creditor is not bound to accept pa"ment or
performance b" a third person who has no interest in the
fulfillment of the obligation% unless there is a stipulation to the
contrar".
0hoever pa"s for another ma" demand from the debtor what
he has paid% e-cept that if he paid without the knowledge or
against the will of the debtor% he can recover onl" insofar as the
pa"ment has been beneficial to the debtor.
Art. 1237. 0hoever pa"s on behalf of the debtor without the
knowledge or against the will of the latter% cannot compel the
creditor to subrogate him in his rights% such as those arising from a
mortgage% guarant"% or penalt".
Art. 1238. Pa"ment made b" a third person who does not
intend to be reimbursed b" the debtor is deemed to be a donation%
which re.uires the debtor:s consent. Gut the pa"ment is in an" case
valid as to the creditor who has accepted it.
Art. 1239. ,n obligations to give% pa"ment made b" one who
does not have the free disposal of the thing due and capacit" to
alienate it shall not be valid% without prejudice to the provisions of
article '<4B under the Title on I2atural #bligations.I
Art. 1240. Pa"ment shall be made to the person in whose
favor the obligation has been constituted% or his successor in
interest% or an" person authori$ed to receive it.
Art. 1241. Pa"ment to a person who is incapacitated to
administer his propert" shall be valid if he has kept the thing
delivered% or insofar as the pa"ment has been beneficial to him.
Pa"ment made to a third person shall also be valid insofar as
it has redounded to the benefit of the creditor. ?uch benefit to the
creditor need not be proved in the following cases+
5'6 ,f after the pa"ment% the third person ac.uires the
creditor:s rights3
546 ,f the creditor ratifies the pa"ment to the third person3
576 ,f b" the creditor:s conduct% the debtor has been led to
believe that the third person had authorit" to receive the
pa"ment.
Art. 1242. Pa"ment made in good faith to an" person in
possession of the credit shall release the debtor.
Art. 1243. Pa"ment made to the creditor b" the debtor after
the latter has been judiciall" ordered to retain the debt shall not be
valid.
Art. 1244. The debtor of a thing cannot compel the creditor
to receive a different one% although the latter ma" be of the same
value as% or more valuable than that which is due.
,n obligations to do or not to do% an act or forbearance
cannot be substituted b" another act or forbearance against the
obligee:s will.
Art. 1245. Dation in pa"ment% whereb" propert" is alienated
to the creditor in satisfaction of a debt in mone"% shall be governed
b" the law of sales.
Art. 1246. 0hen the obligation consists in the deliver" of an
indeterminate or generic thing% whose .ualit" and circumstances
have not been stated% the creditor cannot demand a thing of
superior .ualit". 2either can the debtor deliver a thing of inferior
.ualit". The purpose of the obligation and other circumstances
shall be taken into consideration.
Art. 1247. >nless it is otherwise stipulated% the e-trajudicial
e-penses re.uired b" the pa"ment shall be for the account of the
debtor. 0ith regard to judicial costs% the *ules of Court shall
govern.
Art. 1248. >nless there is an e-press stipulation to that
effect% the creditor cannot be compelled partiall" to receive the
prestations in which the obligation consists. 2either ma" the
debtor be re.uired to make partial pa"ments.
8owever% when the debt is in part li.uidated and in part
unli.uidated% the creditor ma" demand and the debtor ma" effect
the pa"ment of the former without waiting for the li.uidation of the
latter.
Art. 1249. The pa"ment of debts in mone" shall be made in
the currenc" stipulated% and if it is not possible to deliver such
currenc"% then in the currenc" which is legal tender in the
Philippines.
The deliver" of promissor" notes pa"able to order% or bills of
e-change or other mercantile documents shall produce the effect of
pa"ment onl" when the" have been cashed% or when through the
fault of the creditor the" have been impaired.
,n the meantime% the action derived from the original
obligation shall be held in the abe"ance.
Art. 1250. ,n case an e-traordinar" inflation or deflation of
the currenc" stipulated should supervene% the value of the currenc"
at the time of the establishment of the obligation shall be the basis
of pa"ment% unless there is an agreement to the contrar".
Art. 1251. Pa"ment shall be made in the place designated in
the obligation.
There being no e-press stipulation and if the undertaking is
to deliver a determinate thing% the pa"ment shall be made
wherever the thing might be at the moment the obligation was
constituted.
,n an" other case the place of pa"ment shall be the domicile
of the debtor.
,f the debtor changes his domicile in bad faith or after he has
incurred in dela"% the additional e-penses shall be borne b" him.
These provisions are without prejudice to venue under the
*ules of Court.
8i+e obligee and creditor, payment and per#ormance are twin terms.
Aayment re#ers to obligations to give while per#ormance re#ers to
obligations to do.
Aayment and per#ormance is the paradigmatic mode. "hen obligations
are entered into, the parties e'pect payment or per#ormance. &ll other
modes o# e'tinguishing obligations are abnormal modes.
,e-uisites o# Aayment
a. As to prestation
i. Identit8
7dentity means that the very prestation must be per#ormed.
For e'ample, i# the obligation is to give a car, one cannot
#ul#ill the obligation pay giving a house.
7# the prestation is speci#ic, the debtor must give or deliver
the speci#ic thing which was agreed upon :&rticle 12$$
;.
7# the prestation is generic, the creditor cannot demand a
thing o# superior -uality. >owever, the debtor cannot give a
thing o# in#erior -uality :&rticle 12$4
;.
The payment o# debts in money shall be made in the
currency stipulated, and i# it not possible to deliver such
currency, then in the currency which is legal tender in the
Ahilippines :&rticle 12$E
, 1
st
?;.
,.&. No. 32E has been repealed by ,.&. No. D1D which
allows payment in di##erent currency. >owever, in the
absence o# an agreement, payment shall be made in A.
Negotiable papers and other commercial documents can be
re#used by the creditor unless there is stipulation to the
contrary.
7# the negotiable papers and other commercial documents
are accepted by the creditor, it has only a provisional e##ect.
There is payment only in the #ollowing :&rticle 12$E
, 2
nd
?;.
1. "hen they have been honored and cashed% or
2. "hen through the #ault o# the creditor, they have been
impaired
7n the case o# ,A9AR;. the chec+ must be the chec+ o#
another person, not a party, be#ore there will be impairment.
For e'ample, & gave = a chec+ as payment #or a loan. = did
not encash the chec+ as a result o# which, the chec+ became
stale. There is no impairment here. = can still as+ & #or
payment o# the loan.
>owever, i# = endorsed a chec+ made by & to C as payment
#or a loan and C did not encash the chec+ which became
stale, then C can no longer as+ = to pay him again.
7n the case o# Paci!ic 7im5er the .upreme Court said that a
certi#ied chec+ or a managers chec+ is considered as good
as cash. =ut newer cases say that such instruments are not
considered legal tender and thus, the creditor can re#use to
`
Art. )%**. The debtor o# a thing cannot compel the creditor to receive a di##erent one,
although the latter may be o# the same value as, or more valuable than that which is due.
7n obligations to do or not to do, an act or #orbearance cannot be substituted by
another act or #orbearance against the obligeeGs will.
Art. )%*&. "hen the obligation consists in the delivery o# an indeterminate or generic thing,
whose -uality and circumstances have not been stated, the creditor cannot demand a thing o#
superior -uality. Neither can the debtor deliver a thing o# in#erior -uality. The purpose o# the
obligation and other circumstances shall be ta+en into consideration.
Art. )%*2. The payment o# debts in money shall be made in the currency stipulated, and i# it
is not possible to deliver such currency, then in the currency which is legal tender in the
Ahilippines.
The delivery o# promissory notes payable to order, or bills o# e'change or other
mercantile documents shall produce the e##ect o# payment only when they have been cashed,
or when through the #ault o# the creditor they have been impaired.
7n the meantime, the action derived #rom the original obligation shall be held in the
abeyance.
accept. For e'ample, & gives = a managers chec+ and ban+
closes #or a ban+ holiday.
&rticle 1231
@
was applied only during the Mapanese
occupation.
/'ceptions to the ,e-uirement o# 7dentity
1. Dacion en pago :&rticle 12$3;
Art. 1245. Dation in pa"ment% whereb"
propert" is alienated to the creditor in satisfaction
of a debt in mone"% shall be governed b" the law of
sales.
2. Novation
ii. Integrit8
7dentity means that the entire prestation must be per#ormed
< completeness :&rticle 12
;
/'ceptions to 7ntegrity
1. .ubstantial compliance in good #aith
:&rticle 12$;
Art. 1234. ,f the obligation has been
substantiall" performed in good faith% the obligor
ma" recover as though there had been a strict and
complete fulfillment% less damages suffered b" the
obligee.
2. "aiver :&rticle 123;
Art. 1235. 0hen the obligee accepts the
performance% knowing its incompleteness or
irregularit"% and without e-pressing an" protest or
objection% the obligation is deemed full" complied
with.
. 7n application o# payments i# the debts
are e-ually onerous :&rticle 123$, 2
nd
?;
Art. 1254$ 2
n+
%. ,f the debts due are of the
same nature and burden% the pa"ment shall be
applied to all of them proportionatel".
*
Art. )%$0. 7n case an e'traordinary in#lation or de#lation o# the currency stipulated should
supervene, the value o# the currency at the time o# the establishment o# the obligation shall be
the basis o# payment, unless there is an agreement to the contrary.
_
Art. )%((. & debt shall not be understood to have been paid unless the thing or service in
which the obligation consists has been completely delivered or rendered, as the case may be.
iii. 7ndivisibility
7ndivisibility means that the obligor must per#orm the
prestation in one act and not in installments :&rticle 12$D;.
The creditor can validly re#use i# the per#ormance is not in
one act.
/'ceptions to 7ndivisibility :Cases when the law allows
installment per#ormance;
1. 7n case o# e'press stipulation :&rticle 12$D;
Art. 1248. >nless there is an e-press
stipulation to that effect% the creditor cannot be
compelled partiall" to receive the prestations in
which the obligation consists. 2either ma" the
8owever% when the debt is in part li.uidated
and in part unli.uidated% the creditor ma" demand
and the debtor ma" effect the pa"ment of the
former without waiting for the li.uidation of the
latter.
2. 7n prestations which necessarily entail partial
per#ormance :&rticle 1223, 2
nd
?;
Art. 1225$ 2
n+
%. 0hen the obligation has for
its object the e-ecution of a certain number of da"s
of work% the accomplishment of work b" metrical
units% or analogous things which b" their nature are
susceptible of partial performance% it shall be
divisible.
. 7# the debt is li-uidated in part and unli-uidated in part
:&rticle 12$D;
Art. 1248. >nless there is an e-press
stipulation to that effect% the creditor cannot be
compelled partiall" to receive the prestations in
which the obligation consists. 2either ma" the
8owever% when the debt is in part li.uidated
and in part unli.uidated% the creditor ma" demand
and the debtor ma" effect the pa"ment of the
former without waiting for the li.uidation of the
latter.
$. 7n )oint divisible obligations :&rticle
121D;
Art. 1208. ,f from the law% or the nature or
the wording of the obligations to which the
preceding article refers the contrar" does not
appear% the credit or debt shall be presumed to be
divided into as man" shares as there are creditors
or debtors% the credits or debts being considered
distinct from one another% subject to the *ules of
Court governing the multiplicit" of suits.
3. 7n solidary obligations when the debtors
are bound under di##erent terms and conditions :&rticle
1211;
Art. 1211. ?olidarit" ma" e-ist although the
creditors and the debtors ma" not be bound in the
same manner and b" the same periods and
conditions.
4. 7n compensation where there is a
balance le#t :&rticle 12E1;
Art. 1290. 0hen all the re.uisites mentioned
in article '4BD are present% compensation takes
effect b" operation of law% and e-tinguishes both
debts to the concurrent amount% even though the
creditors and debtors are not aware of the
compensation.
C. 7# the wor+ is to be delivered partially,
the price or compensation #or each part having been #i'ed
:&rticle 1C21;
Art. 1720. The price or compensation shall
be paid at the time and place of deliver" of the
work% unless there is a stipulation to the contrar".
,f the work is to be delivered partiall"% the price or
compensation for each part having been fi-ed% the
sum shall be paid at the time and place of deliver"%
in the absence if stipulation.
D. 7n case o# several guarantors who
demand the right o# division :&rticle 2143;
Art. 2065. ?hould there be several
guarantors of onl" one debtor and for the same
debt% the obligation to answer for the same is
divided among all. The creditor cannot claim from
the guarantors e-cept the shares which the" are
respectivel" bound to pa"% unless solidarit" has
been e-pressl" stipulated.
The benefit of division against the co/
guarantors ceases in the same cases and for the
same reasons as the benefit of e-cussion against
the principal debtor.
E. 7n case o# impossibility or e'treme
di##icult o# a single per#ormance
For e'ample, & is obligated to deliver 1 million bags
o# cement. !nder the circumstances, this may be
e'tremely di##icult.
b. As to t"e parties
i. Pa8or .5ligor De5tor
"ho may be the Aayor
1. "ithout the consent o# the creditor
a. The debtor himsel#
b. The debtors heirs or assigns
c. The debtors agent
d. &nyone interested in the #ul#illment o# the obligation
:e.g. guarantor;
2. "ith the consent o# the creditor
&nyone can pay i# the creditor consents
/##ect o# Aayment by a
rd
Aerson
1. Aayment was with the *ebtors Consent
General *ule+ The payor steps into the shoes o# the
creditor and becomes entitled not only to recover
what he has paid, but also to e'ercise all the rights
which the creditor could have e'ercised < subrogation
:&rticles 124, 12C
;.
There is no e'tinguishment o# the obligation but a
change in the active sub)ect.
Exception: No subrogation i# intended to be a
donation :&rticle 12D
;.
2. Aayment was without the *ebtors Consent
The
rd
person may demand repayment to the e'tent
that the debtor has bene#ited :&rticle 124, 2
nd
?
;.
ii. Pa8ee .5ligee ;reditor
"ho may be the Aayee
1. The creditor himsel# :&rticles 12$1, 1424
;
2. The creditors successor or trans#eree :&rticle 12$1;
_
Art. )%(&. The creditor is not bound to accept payment or per#ormance by a third person
who has no interest in the #ul#illment o# the obligation, unless there is a stipulation to the
contrary.
"hoever pays #or another may demand #rom the debtor what he has paid, e'cept that
i# he paid without the +nowledge or against the will o# the debtor, he can recover only inso#ar
as the payment has been bene#icial to the debtor.
Art. )%(1. "hoever pays on behal# o# the debtor without the +nowledge or against the
will o# the latter, cannot compel the creditor to subrogate him in his rights, such as those
arising #rom a mortgage, guaranty, or penalty.
_
Art. )%(/. Aayment made by a third person who does not intend to be reimbursed by the
debtor is deemed to be a donation, which re-uires the debtorGs consent. =ut the payment is in
any case valid as to the creditor who has accepted it.
_
Art. )%*0. Aayment shall be made to the person in whose #avor the obligation has been
constituted, or his successor in interest, or any person authori6ed to receive it.
Art. )&%&. The debtor who, be#ore having +nowledge o# the assignment, pays his
creditor shall be released #rom the obligation.
Professor Ruben F. Balane Pa)e .-4 of +,-
. The creditors agent :&rticle 12$1;
$. &ny third person sub)ect to the #ollowing conditions9
a. Arovided it redounded to the creditors bene#it and
only to the e'tent o# such bene#it :&rticle 12$1
, 2
nd
par;
b. 7# it #alls under &rticle 12$1 ?2 :1;, :2; and :;, the
bene#it is total.
3. &nyone in possession o# the credit :&rticle 12$2
;
4. 7n all these 3 instances, it is re-uired that the debt
should not be garnished :&rticle 12$2;. 7# there is
payment despite garnishment, then there is no payment.
c. As to t"e tie an+ place o. per.orance
i. I#en Pa8ment +#ould 5e 9ade
Aayment should be made when it is due.
/ven i# the payment is due, the General *ule is that
demand is still necessary.
&rticle 114E
provides the instances when demand is not

necessary
1. "hen the obligation or the law
e'pressly so declares
2. Time is the controlling motive #or the
establishment o# the contract
. *emand would be useless
ii. I#ere Pa8ment +#ould 5e 9ade:
Primar" *ule+ &greement o# the parties
Art. )%*). Aayment to a person who is incapacitated to administer his property shall be
valid i# he has +ept the thing delivered, or inso#ar as the payment has been bene#icial to him.
Aayment made to a third person shall also be valid inso#ar as it has redounded to the bene#it o#
the creditor. .uch bene#it to the creditor need not be proved in the #ollowing cases9
:1; 7# a#ter the payment, the third person ac-uires the creditorGs rights%
:2; 7# the creditor rati#ies the payment to the third person%
:; 7# by the creditorGs conduct, the debtor has been led to believe that the third person
had authority to receive the payment.
`
Art. )%*%. Aayment made in good #aith to any person in possession o# the credit shall release
the debtor.
`
Art. ))&2. Those obliged to deliver or to do something incur in delay #rom the time the
obligee )udicially or e'tra)udicially demands #rom them the #ul#illment o# their obligation.
>owever, the demand by the creditor shall not be necessary in order that delay may
e'ist9
:1; "hen the obligation or the law e'pressly so declare% or
:2; "hen #rom the nature and the circumstances o# the obligation it appears that the
designation o# the time when the thing is to be delivered or the service is to be
rendered was a controlling motive #or the establishment o# the contract% or
:; "hen demand would be useless, as when the obligor has rendered it beyond his power
to per#orm.
7n reciprocal obligations, neither party incurs in delay i# the other does not comply or is
not ready to comply in a proper manner with what is incumbent upon him. From the moment
one o# the parties #ul#ills his obligation, delay by the other begins.
Professor Ruben F. Balane Pa)e .-* of +,-
?econdar" *ule+ Alace where the thing was at the time the
obligation was constituted i# the obligation is to deliver a
determinate thing
Tertiar" *ule+ *ebtors domicile :not residence;
$ .pecial Forms o# Aayment
a. Dacion en pa/o :&rticle 12$3;
Art. 1245. Dation in pa"ment% whereb" propert" is
alienated to the creditor in satisfaction of a debt in mone"%
shall be governed b" the law of sales.
Dacion en pago is the act o# e'tinguishing the obligation by the
substitution o# payment. 7t is the delivery and transmission o#
ownership o# a thing by the debtor to the creditor as an
accepted per#ormanceKpayment o# an obligation.
=y agreement o# the parties, the prestation is changed.
Dacion en pago is a special #orm o# payment since it does not
comply with the re-uisite o# identity.
0ther terms #or dacion en pago include dation in payment,
dation en paiement and datio in solutum.
Dacion en pago is governed by the law on sales :&rticle 12$3;.
There are 2 ways o# loo+ing at dacion en pago. The traditional
way is to view dacion en pago as a sale.
Example: & owes = A111,111. & has no cash when the loan
#alls due but he o##ers the car i# = wants it. = accepts.
>ere, the debt is in money but payment is in something else.
&ccording to the old traditional concept, it is li+e a sale because
A111,111 seemed to be the purchase price and the car is the
ob)ect.
>owever, the modern view is to loo+ at dacion en pago as a
novation.
Castan has another view o# dacion en pago. >e believes that it
is neither a sale nor a novation but a special #orm o# payment.
7t is a speciesKvariation o# payment implying an onerous
transaction similar to but not e-ual to a sale. 7t is not novation
since there is no new obligation.
Dacion en pago will ta+e place only i# the parties consent.
Dacion en pago e'tinguishes the obligation up to the value o#
the thing delivered unless the parties agree that the entire
obligation is e'tinguished (Lopez vs. ;A).
b. Application o. pa!ents :&rticles 12322123$;
Art. 1252. 8e who has various debts of the same kind
in favor of one and the same creditor% ma" declare at the
time of making the pa"ment% to which of them the same
must be applied. >nless the parties so stipulate% or when the
application of pa"ment is made b" the part" for whose
Professor Ruben F. Balane Pa)e .-. of +,-
benefit the term has been constituted% application shall not
be made as to debts which are not "et due.
,f the debtor accepts from the creditor a receipt in
which an application of the pa"ment is made% the former
cannot complain of the same% unless there is a cause for
invalidating the contract.
Art. 1253. ,f the debt produces interest% pa"ment of
the principal shall not be deemed to have been made until
the interests have been covered.
Art. 1254. 0hen the pa"ment cannot be applied in
accordance with the preceding rules% or if application can not
be inferred from other circumstances% the debt which is most
onerous to the debtor% among those due% shall be deemed to
have been satisfied.
,f the debts due are of the same nature and burden%
the pa"ment shall be applied to all of them proportionatel".
&pplication payment is the designation o# the debt which is being
paid by a debtor who has several obligations o# the same +ind in
#avor o# the creditor to whom payment is made.
The situation in application o# payments is that a debtor owes
his creditor. There are several debts due, but the debtor cannot
pay all o# the debts due.
Example: & owes = A2111, A111 and A11,111. & gives =
A13,111. There is no application o# payment here because it is
e-ual to the total amount due.
The creditor can always not accept application o# payments since
the creditor cannot be compelled to accept partial per#ormance
o# the obligation. >owever, this may not be wise since the
debtor may have other creditors.
The rules on application o# payment solve the problem o#
distributing the payment which is less than the total obligation.
,ules in &pplication o# Aayment
'
st
*ule+ &pply in accordance with the agreement
4
nd
*ule+ 7# there is no agreement, the debtor has the right
to apply
7
rd
*ule+ 7# the debtor does not choose, the creditor can
choose.
<
th
*ule+ &pply to the most onerous debt :&rticle 123$, ?1;
,ules to *etermine "hich is the Bore 0nerous 0bligation
i. &n interest bearing obligation is more onerous than a
non2interest bearing obligation.
ii. &n older debt is more onerous than a recent debt
iii. &n obligation where the party is bound as a principal
is more onerous than an obligation is bound as a
surety
Professor Ruben F. Balane Pa)e .-+ of +,-
iv. &n obligation which is secured is more onerous than
an obligation which is unsecured
v. &n obligation with a penal clause is more onerous
than an obligation without a penal clause
)
th
*ule+ 7# e-ually onerous, apply proportionately :&rticle
123$, ?2;
c. &a!ent '! cession :&rticle 1233;
Art. 1255. The debtor ma" cede or assign his propert"
to his creditors in pa"ment of his debts. This cession% unless
there is stipulation to the contrar"% shall onl" release the
debtor from responsibilit" for the net proceeds of the thing
assigned. The agreements which% on the effect of the
cession% are made between the debtor and his creditors shall
be governed b" special laws.
The situation is contemplated here is that the debtor has several
creditors and several debts. >e turns over property to his
creditors who are given the authority to sell the property and to
apply the proceeds to his debt.
7n payment by cession, property is turned over by the debtor to
the creditors who ac-uire the right to sell it and divide the net
proceeds among themselves.
7n payment by cession, the creditors do not own the property to
be sold. The creditors only have the power to sell. The net
proceeds o# the sale will be distributed according to the
agreement.
Aayment by cession is a special #orm o# payment because there
is no completeness o# per#ormance < integrity. 7n most cases,
there will be a balance due.
Aayment by Cession *istinguished #rom Dacion en Pago
7n dacion en pago, there is a trans#er o# ownership #rom the
debtor to the creditor. 7n pa8ment 58 cesion, there is no
trans#er o# ownership. The creditors simply ac-uire the right
to sell the properties o# the debtor and apply the proceeds o#
the sale to the satis#action o# their credit.
Aayment by cession does not generally terminate all debts
due since normally there is still a balance due. The balance
will continue to be due unless the parties agree otherwise.
!sually, the termination is only to the e'tent o# the net
proceeds. The e'tinguishment o# the obligation is pro tanto.
Aayment by cession must be distinguished #rom insolvency.
2 Iinds o# 7nsolvency
i. /'tra)udicial or Voluntary
7n e'tra)udicial insolvency, i# there is a balance le#t,
the debtor must still pay.
>owever, the debtor may limit which properties will
be sold by the creditors since the agreement is
contractual.
Professor Ruben F. Balane Pa)e .-/ of +,-
ii. Mudicial
7n )udicial insolvency, the obligation is totally
e'tinguished even i# theres still a balance.
7n )udicial insolvency, every property which is not
e'empt #rom attachment or e'ecution is made
available #or sale.
d. 7en+er o. pa!ent an+ consi/nation :&rticle 123421241;
Art. 1256. ,f the creditor to whom tender of pa"ment
has been made refuses without just cause to accept it% the
debtor shall be released from responsibilit" b" the
consignation of the thing or sum due.
Consignation alone shall produce the same effect in
the following cases+
5'6 0hen the creditor is absent or unknown% or does not
appear at the place of pa"ment3
546 0hen he is incapacitated to receive the pa"ment at
the time it is due3
576 0hen% without just cause% he refuses to give a
receipt3
5<6 0hen two or more persons claim the same right to
collect3
5)6 0hen the title of the obligation has been lost.
Art. 1257. ,n order that the consignation of the thing
due ma" release the obligor% it must first be announced to
the persons interested in the fulfillment of the obligation.
The consignation shall be ineffectual if it is not made
strictl" in consonance with the provisions which regulate
pa"ment.
Art. 1258. Consignation shall be made b" depositing
the things due at the disposal of judicial authorit"% before
whom the tender of pa"ment shall be proved% in a proper
case% and the announcement of the consignation in other
cases.
The consignation having been made% the interested
parties shall also be notified thereof.
Art. 1259. The e-penses of consignation% when
properl" made% shall be charged against the creditor.
Art. 1260. #nce the consignation has been dul" made%
the debtor ma" ask the judge to order the cancellation of the
obligation.
Gefore the creditor has accepted the consignation% or
before a judicial declaration that the consignation has been
properl" made% the debtor ma" withdraw the thing or the
sum deposited% allowing the obligation to remain in force.
Professor Ruben F. Balane Pa)e .-, of +,-
Art. 1261. ,f% the consignation having been made% the
creditor should authori$e the debtor to withdraw the same%
he shall lose ever" preference which he ma" have over the
thing. The co/debtors% guarantors and sureties shall be
released.
Consignation is the act o# depositing the thing due wK the court
or )udicial authorities whenever the creditor cannot accept or
re#uses to accept payment and it generally re-uires a prior
tender o# payment.
7t is de#ined in the case o# +oco vs. 9ilitante as a deposit o# the
ob)ect o# the prestation in a competent court in accordance with
the rules prescribed by law, a#ter tender o# payment was re#used
or circumstances which render payment impossible or
inadvisable.
&ccording to Aro#essor =alane, the title o# the subsection is
wrong. 7t should have been consignation only because that is
the special mode o# payment and not the tender o# payment.
Tender o# payment is a mani#estation made by the debtor o# his
willingness, readiness and ability to pay.
7t is a special mode o# payment because payment is made not to
the creditor but to the court.
Consignation is an option on the part o# the debtor because
consignation assumes that the creditor was in mora accipiendi
when the creditor without )ust cause, re#uses to accept
payment. 0# course, i# the creditor without )ust cause re#uses to
accept payment, the debtor may )ust delay payment. =ut
something still hangs above his head. >e is there#ore, given the
option to consign.
,e-uisites9
i. That there was a debt due
ii. That the consignation o# the obligation had been made
because o# some legal cause, either because
1. Tender o# payment was un)ustly re#used by the creditor
or
2. There is no need #or tender o# payment due to
circumstances which ma+e tender o# payment impossible
or inadvisable
Circumstances "hich Ba+e Tender o# Aayment
!nnecessary :&rticle 1234;
a. The creditor was absent or un+nown, or does not
appear at the place o# payment
b. The creditor was incapacitated to receive the
payment at the time it was due
Aayment made to an incapacitated person
does not count e'cept to the e'tent that the
incapacitated person is bene#ited.
c. The creditor, without )ust cause re#uses to give a
receipt
&ccording to Aro#essor =alane, this is wrong.
This is not a special case wherein you dont
need tender o# payment. This presupposes
that there has been a prior tender o# payment.
d. .everal persons claimed to be entitled to receive
the amount due
The debtor should #ile interpleader with
consignation
e. The title o# the obligation has been lost
iii. That previous notice o# the consignation had been given to
the person interested in the per#ormance o# the obligation
:&rticle 123C;
iv. That the amount due was placed at the disposal o# the court
:consignation proper;
v. That a#ter the consignation had been made the person
interested was noti#ied thereo# :second notice.;
Failure o# any o# these re-uirements is enough ground to
render a consignation ine##ective.
2. !oss of the Thing Due :&rticles 12422124E;
Art. 1262. An obligation which consists in the deliver" of a
determinate thing shall be e-tinguished if it should be lost or
destro"ed without the fault of the debtor% and before he has
incurred in dela".
0hen b" law or stipulation% the obligor is liable even for
fortuitous events% the loss of the thing does not e-tinguish the
obligation% and he shall be responsible for damages. The same rule
applies when the nature of the obligation re.uires the assumption
of risk.
Art. 1263. ,n an obligation to deliver a generic thing% the
loss or destruction of an"thing of the same kind does not
e-tinguish the obligation.
Art. 1264. The courts shall determine whether% under the
circumstances% the partial loss of the object of the obligation is so
important as to e-tinguish the obligation.
Art. 1265. 0henever the thing is lost in the possession of
the debtor% it shall be presumed that the loss was due to his fault%
unless there is proof to the contrar"% and without prejudice to the
provisions of article ''A). This presumption does not appl" in case
of earth.uake% flood% storm% or other natural calamit".
Art. 1266. The debtor in obligations to do shall also be
released when the prestation becomes legall" or ph"sicall"
impossible without the fault of the obligor.
Art. 1268. 0hen the debt of a thing certain and determinate
proceeds from a criminal offense% the debtor shall not be e-empted
from the pa"ment of its price% whatever ma" be the cause for the
loss% unless the thing having been offered b" him to the person
who should receive it% the latter refused without justification to
accept it.
Art. 1269. The obligation having been e-tinguished b" the
loss of the thing% the creditor shall have all the rights of action
which the debtor ma" have against third persons b" reason of the
loss.
8oss o# the thing here is not to be ta+en in the strict legal meaning o#
OlossP. 8oss can be applied in an obligation to give a determinate
thing :&rticle 1242;, in an obligation to give a generic thing :&rticle
124; and in an obligation to do :&rticle 1244;.
The term loss embraces all causes which may render impossible the
per#ormance o# the prestations < impossibility o# per#ormance .
& thing is lost when it perishes, or goes out o# commerce, or disappears
in such a way that its e'istence is un+nown or it cannot be recovered.
"hen the debt o# a thing certain and determinate proceeds #rom a
criminal o##ense, the debtor shall not be e'empted #rom the payment o#
its price, whatever may be the cause #or the loss, unless the thing
having been o##ered by him to the person who should receive it, the
latter re#used without )usti#ication to accept it :&rticle 124D;.
Iinds o# 7mpossibility &ccording to Time
a. 0riginal 7mpossibility
7# the impossibility had already e'isted when the contract was
made, then the result is not e'tinguishments but ine##icacy o#
the obligation under &rticles 1$D and 1$E
. The contract is
void.
b. .upervening 7mpossibility
The impossibility o# per#ormance must be subse-uent to the
e'ecution o# the contract in order to e'tinguish the obligation.
Change in the Circumstances
Re5us sic stanti5us literally means Othings as they stand.P
7t is short #or clausula re5us sic stanti5us < agreement o#
things as they stand. &lso called Riesgo imprevisi5le
:.panish;, 7#eorie dAimprevision :French; and >ersc#uvinden
des :rundgesc#K!tes :5erman;.
Art. 1267. 0hen the service has become so
difficult as to be manifestl" be"ond the contemplation
of the parties% the obligor ma" also be released
therefrom% in whole or in part.
7n ,oman law, no matter how di##icult the obligation is, it has
to be per#ormed or else the obligor may be liable #or
Art. )(*/. 7mpossible things or services cannot be the ob)ect o# contracts.

Art. )*2(. 7# at the time the contract o# sale is per#ected, the thing which is the ob)ect
o# the contract has been entirely lost, the contract shall be without any e##ect.
=ut i# the thing should have been lost in part only, the vendee may choose between
withdrawing #rom the contract and demanding the remaining part, paying its price in proportion
to the total sum agreed upon.
damages (pacta sunt servanda). 7n Bedieval times,
although agreements should be complied with, in certain
e'treme circumstances, the debtor can be released because
o# the di##iculty in per#ormance.
This is a principle o# international law which holds that when
2 states enter into a treaty, they enter ta+ing into account
the circumstances at the time it was entered into and should
the circumstances change as to ma+e the #ul#illment o# the
treaty very di##icult, one may as+ #or a termination o# the
treaty. This principle o# international law has spilled over
into Civil law.
The underlying philosophy here is that when parties enter
into an agreement, the parties contemplate e'isting
circumstances. "hen things supervene, the parties may be
discharged because they did not contemplate such di##icult
circumstances.
This doctrine is also called the doctrine o# e'treme di##iculty
and #rustration o# commercial ob)ect or enterprise.
The attitude o# the courts on this doctrine is very strict. This
principle has always been strictly applied. To give it a liberal
application is to undermine the binding #orce o# an obligation.
/very obligation is di##icult. The per#ormance must be
e'tremely di##icult in order #or re5us sic stanti5us to apply.
,e-uisites
i. The event or change could not have been #oreseen at the
time o# the e'ecution o# the contract
ii. The event or change ma+es the per#ormance e'tremely
di##icult but not impossible
iii. The event must not be due to an act o# either party
iv. The contract is #or a #uture prestation.
7# the contract is o# immediate #ul#illment, the gross
ine-uality o# the reciprocal prestation may involve lesion or
want o# cause.
0bligation to 5ive
a. 0bligation to give a determinate thing
The happening o# a #ortuitous event in itsel# does not necessarily
e'tinguish an obligation to deliver a determinate thing. &n
obligation consisting in the delivery o# a speci#ied thing, shall be
e'tinguished when the said thing is lost or destroyed without the
#ault o# the obligor and be#ore he is in de#ault.
"henever the thing is lost in the possession o# the debtor, it
shall be presumed that the loss was due to his #ault, unless
there is proo# to the contrary, and without pre)udice to the
provisions o# &rticle 1143. This presumption does not apply in
case o# earth-ua+e, #lood, storm or other natural calamity
:&rticle 1243;
b. 0bligation to give a generic thing
Professor Ruben F. Balane Pa)e .-- of +,-
The happening o# a #ortuitous event does not e'tinguish the
obligation to deliver a generic thing :enus nun=uam perit G
Lgenus never perishes.P This is the general rule. .ometimes,
though, the entire genus perishes because it becomes illegal.
"hat is not covered by this rule is an obligation to deliver a
limited generic.
Example: 7 promise to deliver to you one o# my Amorsolos :7
have $;. This is not generic because 7 only have #our but not
speci#ic because 7 did not speci#y which one. This is governed by
&rticle 1242. 7n this case, the obligation may be e'tinguished
by the loss o# all the things through #ortuitous event.
0bligation to do
The debtor in obligations to do shall also be released when the
prestation becomes legally or physically impossible without the #ault
o# the obligor :&rticle 1244;.
The impossibility here must be supervening. 7# it is original, then
the contract is void.
Iinds o# 7mpossibility &ccording to Nature
a. 0b)ective 7mpossibility
7n ob)ective impossibility, the act cannot be done by anyone.
The e##ect o# ob)ective impossibility is to e'tinguish the
obligation.
b. .ub)ective 7mpossibility
7n sub)ective impossibility, the obligation becomes impossible
only wK respect to the obligor. There are views as to the e##ect
o# a sub)ective impossibility9
i The obligation is not e'tinguished. The obligor should as+
another to do the obligation.
ii. The obligation is e'tinguished.
iii. & third view distinguishes one prestation which is very
personal and one which are not personal such that sub)ective
impossibility is a cause #or e'tinguishes a very personal
obligation but not an obligation which is not very personal.
/##ect o# 8oss on Creditors ,ights
The obligation having been e'tinguished by the loss o# the thing,
the creditor shall have all the rights o# action which the debtor may
have against the third person by reason o# the loss.
& common e'ample o# this is insurance.
. Condonation or *emission of the Due
Art. 1270. Condonation or remission is essentiall"
gratuitous% and re.uires the acceptance b" the obligor. ,t ma" be
made e-pressl" or impliedl".
#ne and the other kind shall be subject to the rules which
govern inofficious donations. 9-press condonation shall%
furthermore% compl" with the forms of donation.
Art. 1271. The deliver" of a private document evidencing a
credit% made voluntaril" b" the creditor to the debtor% implies the
renunciation of the action which the former had against the latter.
,f in order to nullif" this waiver it should be claimed to be
inofficious% the debtor and his heirs ma" uphold it b" proving that
the deliver" of the document was made in virtue of pa"ment of the
debt.
Art. 1272. 0henever the private document in which the debt
appears is found in the possession of the debtor% it shall be
presumed that the creditor delivered it voluntaril"% unless the
contrar" is proved.
Art. 1273. The renunciation of the principal debt shall
e-tinguish the accessor" obligations3 but the waiver of the latter
shall leave the former in force.
Art. 1274. ,t is presumed that the accessor" obligation of
pledge has been remitted when the thing pledged% after its deliver"
to the creditor% is found in the possession of the debtor% or of a
third person who owns the thing.
Condonation or remission is an act o# liberality by virtue o# which,
without receiving any e-uivalent, the creditor renounces en#orcement o#
an obligation which is e'tinguished in whole or in part.
,e-uisites
a. The debt must be e'isting
Hou can remit a debt even be#ore it is due.
Example: 7 owe & A1B. 7 promised to pay on Muly 1, 2112
with interest. 0n Bay 1, & condones the obligation. The
obligation is e'isting but not yet due but it can be condoned.
b. The renunciation must be gratuitous
7# renunciation is #or a consideration, the mode o#
e'tinguishment may be something else. 7t may be novation,
compromise or dacion en pago #or e'ample.
c. There must be acceptance by the debtor
d. The parties must have capacity
The creditor must have capacity to give away.
The debtor must have capacity to accept.
Professor Ruben F. Balane Pa)e +4* of +,-
Form
a. 7# the renunciation is e'press, then it is a donation.
The #orm o# donation must be observed. 7# the condonation
involves movables, apply &rticle C$D
. 7# it involves
immovables, apply &rticle C$E
.
b. 7# the renunciation is implied, then it is tantamount to a waiver.
There is no prescribed #orm in a waiver :&rticle 4
@
;. For e'ample,
the creditor can )ust re#use to collect the debt.
&ccording to Aro#essor =alane, &rticles 12C1 and 12C2
re#er to
a +ind o# implied renunciation when the creditor divests himsel#
o# the proo# credit.
The delivery o# a private document, evidencing a credit, made
voluntarily by the creditor to the debtor, implies the renunciation
o# the action which the #ormer had against the latter.
7# in order to nulli#y this waiver it should be claimed to be
ino##icious, the debtor and his heirs may uphold it by providing
that the delivery o# the document was made in virtue o#
payment o# the debt :&rticle 12C1;.
&rticle 12C1 has no application to public documents because
there is always a copy in the archives which can be used to
prove the credit. Arivate document re#ers to the original in
order #or &rticle 12C1 to apply.
=y delivering the private document, the creditor deprives
himsel# o# proo#.
The second paragraph o# &rticle 12C1 implies that the
voluntary return o# the title o# credit is presumed to be by
Art. 1*/. The donation o# a movable may be made orally or in writing.

&n oral donation re-uires the simultaneous delivery o# the thing or o# the document
representing the right donated.
7# the value o# the personal property donated e'ceeds #ive thousand pesos, the
donation and the acceptance shall be made in writing, otherwise, the donation shall be void.
:42a;
Art. 1*2. 7n order that the donation o# an immovable may be valid, it must be made in
a public document, speci#ying therein the property donated and the value o# the charges which
*
Art. &. ,ights may be waived, unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or pre)udicial to a third person with a right recogni6ed by law.
_
Art. )%1). The delivery o# a private document evidencing a credit, made voluntarily by the
creditor to the debtor, implies the renunciation o# the action which the #ormer had against the
latter.
7# in order to nulli#y this waiver it should be claimed to be ino##icious, the debtor and his
heirs may uphold it by proving that the delivery o# the document was made in virtue o#
payment o# the debt. :11DD;
Art. )%1%. "henever the private document in which the debt appears is #ound in the
possession o# the debtor, it shall be presumed that the creditor delivered it voluntarily, unless
the contrary is proved.
Professor Ruben F. Balane Pa)e +4. of +,-
reason o# remission and not by reason o# the payment o#
debt. &ccording to Aro#essor =alane, this is anomalous.
This provision is absurd and immoral in that it authori6es the
debtor and his heirs to prove that they paid the debt, when
the provision itsel# assumes that there has been a remission,
which is gratuitous.
"henever the private document in which the debt appears is
#ound in the possession o# the debtor, it shall be presumed that
the creditor delivered it voluntarily, unless the contrary is proved
:&rticle 12C2;.
2 Aresumptions9
i. 7# a private document is #ound in the possession o# the
debtor, then it is presumed that the creditor voluntarily
delivered it to him
ii. .ince the creditor voluntarily delivered the private document,
then there is a presumption o# remission
"ays o# ,emission
a. =y will
b. =y agreement
/##ect o# Aartial ,emission
The renunciation o# the principal debt shall e'tinguish the accessory
obligations% but the waiver o# the latter shall leave the #ormer in
#orce :&rticle 12C;.
Example: 8oan secured by a mortgage. 7# 7 condone the loan, 7
condone the mortgage. =ut i# 7 condone the mortgage, 7 do not
condone the loan which merely becomes unsecured.
The obligation o# the guarantor is e'tinguished at the same time as
that o# the debtor, and #or the same causes as all other obligations
:&rticle 21C4;.
The guarantors, even though they be solidary, are released #rom
their obligation whenever by some act o# the creditor they cannot be
subrogated to the rights, mortgages, and pre#erences o# the latter
:&rticle 21D1;.
7t is presumed that the accessory obligation o# pledge has been
remitted when the thing pledged, a#ter its delivery to the creditor, is
#ound in the possession o# the debtor, or o# a third person who owns
the thing :&rticle 12C$;.
&ccording to Aro#essor =alane, the accessory obligation o# pledge
is e'tinguished because pledge is a possessory lien. The
presumption in this case is that the pledgee has surrendered the
thing pledged to the pledgor. >owever, this is not a conclusive
presumption according to &rticle 2111, ?2.
This presumption is not applicable in a mortgage since there is
no possessory lien.
7n addition to the re-uisites prescribed in article 21D3, it is
necessary, in order to constitute the contract o# pledge, that the
thing pledged be placed in the possession o# the creditor, or o# a
third person by common agreement :&rticle 21E;
Professor Ruben F. Balane Pa)e +4+ of +,-
The debtor cannot as+ #or the return o# the thing pledged against
the will o# the creditor, unless and until he has paid the debt and its
interest, with e'penses in a proper case :&rticle 2113;.
$. Confusion or ;erger of *ights
Art. 1275. The obligation is e-tinguished from the time the
characters of creditor and debtor are merged in the same person.
Art. 1276. ;erger which takes place in the person of the
principal debtor or creditor benefits the guarantors. Confusion
which takes place in the person of an" of the latter does not
e-tinguish the obligation.
Art. 1277. Confusion does not e-tinguish a joint obligation
e-cept as regards the share corresponding to the creditor or debtor
in whom the two characters concur.
Con#usion is the meeting in one person o# the -ualities o# the creditor
and debtor with respect to the same obligation.
Con#usion or merger o# rights e'tinguishes the obligation because the
creditor becomes his own debtor. There#ore, how can the creditor sue
himsel#.
,e-uisites o# Con#usion
a. 7t must ta+e place between the creditor and the principal debtor
:&rticle 12C4;
& borrowed A 1B #rom = with C as guarantor. 7# C ac-uires the
right to collect the A 1B, there is no con#usion since C is neither
a principal debtor or creditor. The e##ect is that the guaranty is
e'tinguished. The principal obligation remains.
b. The very same obligation must be involved :&rticle 12C3;
!sual Causes o# Con#usion
a. .uccession :compulsory, testate, intestate;
b. *onation
c. Negotiation o# a negotiable instrument
Con#usion can overlap with remission or payment.
Example o! con!usion overlapping 4it# remission: T owes 0 A111,111.
0 be-ueath to T that credit. &nd then she died. 7n this case, there is
e'tinguishment both by merger. =ut in this case, merger could overlap
with remission.
Example o! con!usion overlapping 4it# pa8ment. & ma+es a promissory
note and endorses it to =. = endorsed it to C. C to *. * endorsed it
bac+ to &.
3. Compensation
Art. 1278. Compensation shall take place when two persons%
in their own right% are creditors and debtors of each other.
Art. 1279. ,n order that compensation ma" be proper% it is
necessar"+
Professor Ruben F. Balane Pa)e +4/ of +,-
5'6 That each one of the obligors be bound principall"% and that
he be at the same time a principal creditor of the other3
546 That both debts consist in a sum of mone"% or if the things
due are consumable% the" be of the same kind% and also of
the same .ualit" if the latter has been stated3
576 That the two debts be due3
5<6 That the" be li.uidated and demandable3
5)6 That over neither of them there be an" retention or
controvers"% commenced b" third persons and
communicated in due time to the debtor.
Art. 1280. 2otwithstanding the provisions of the preceding
article% the guarantor ma" set up compensation as regards what
the creditor ma" owe the principal debtor.
Art. 1281. Compensation ma" be total or partial. 0hen the
two debts are of the same amount% there is a total compensation.
Art. 1282. The parties ma" agree upon the compensation of
debts which are not "et due.
Art. 1283. ,f one of the parties to a suit over an obligation
has a claim for damages against the other% the former ma" set it off
b" proving his right to said damages and the amount thereof.
Art. 1284. 0hen one or both debts are rescissible or
voidable% the" ma" be compensated against each other before the"
are judiciall" rescinded or avoided.
Art. 1285. The debtor who has consented to the assignment
of rights made b" a creditor in favor of a third person% cannot set
up against the assignee the compensation which would pertain to
him against the assignor% unless the assignor was notified b" the
debtor at the time he gave his consent% that he reserved his right to
the compensation.
,f the creditor communicated the cession to him but the
debtor did not consent thereto% the latter ma" set up the
compensation of debts previous to the cession% but not of
subse.uent ones.
,f the assignment is made without the knowledge of the
debtor% he ma" set up the compensation of all credits prior to the
same and also later ones until he had knowledge of the
assignment.
Art. 1286. Compensation takes place b" operation of law%
even though the debts ma" be pa"able at different places% but there
shall be an indemnit" for e-penses of e-change or transportation to
the place of pa"ment.
Art. 1287. Compensation shall not be proper when one of
the debts arises from a depositum or from the obligations of a
depositar" or of a bailee in commodatum.
Professor Ruben F. Balane Pa)e +4, of +,-
2either can compensation be set up against a creditor who
has a claim for support due b" gratuitous title% without prejudice to
the provisions of paragraph 4 of article 7E'.
Art. 1288. 2either shall there be compensation if one of the
debts consists in civil liabilit" arising from a penal offense.
Art. 1289. ,f a person should have against him several debts
which are susceptible of compensation% the rules on the application
of pa"ments shall appl" to the order of the compensation.
Art. 1290. 0hen all the re.uisites mentioned in article '4BD
are present% compensation takes effect b" operation of law% and
e-tinguishes both debts to the concurrent amount% even though the
creditors and debtors are not aware of the compensation.
Compensation is a mode o# e'tinguishing, to the concurrent amount,
the obligations o# those persons who in their own right are reciprocally
debtors and creditors o# each other.
Aerhaps, ne't to payment, compensation is the most common mode o#
e'tinguishing an obligation.
Compensation *istinguished #rom Con#usion
7n compensation, there are 2 parties and 2 debts, whereas in
con#usion, there are 2 debts and only 1 party.
Iinds o# Compensation
a. :e/al :&rticle 12CE;
8egal compensation ta+es place automatically by operation o#
law once all the re-uisites under &rticle 12CE are present.
,e-uisites
i. The parties must be mutually debtors and creditors o# each
other in their own right and as principals.
There can be no compensation i# 1 party occupies only a
representative capacity :i.e. agent;. 8i+ewise, there can
be no compensation i# in one obligation, a party is a
principal obligor and in another obligation, he is a
guarantor.
ii. The things due must be #ungible
&rticle 12CE uses the word OconsumableP. This is wrong.
The proper terminology is O#ungibleP which re#ers to
things o# the same +ind which in payment can be
substituted #or another.
iii. The 2 debts must be due
iv. The 2 debts must be li-uidated and demandable
*emandable means that the debts are en#orceable in
court, there being no apparent de#enses inherent in
them. The obligations must be civil obligations, e'cluding
those that are purely natural. =e#ore a )udicial decree o#
rescission or annulment, a rescissible or voidable debt is
valid and demandable% hence, it can be compensated.
& debt is li-uidated when its e'istence and amount are
determined. &nd a debt is considered li-uidated, not only
when it is e'pressed already in de#inite #igures wKc do not
re-uire veri#ication, but also when the determination o#
the e'act amount depends only on a simple arithmetical
operation.
v. Neither o# the debts must not be garnished
vi. Compensation must not be prohibited by law
&rticles 12DC, 12DD and 1CE$
are e'amples o# when

legal compensation is not allowed.
8egal compensation is not allowed when there is
conventional or #acultative compensation.
/##ect o# 8egal Compensation
7# a person should have against him several debts which are
susceptible o# compensation, the rules on the application o#
payments shall apply to the order o# the compensation
:&rticle 12DE;
"hen all the re-uisites mentioned in article 12CE are
present, compensation ta+es e##ect by operation o# law, and
e'tinguishes both debts to the concurrent amount, even
though the creditors and debtors are not aware o# the
compensation :&rticle 12E1;
b. )acultati(e :&rticles 12DC, 12DD;
Facultative compensation ta+es place when compensation is
claimable by only one o# the parties but not o# the other.
Compensation shall not be proper when one o# the debts arises
#rom a depositum or #rom the obligations o# a depositary or o# a
bailee in commodatum.
Neither can compensation be set up against a creditor who has a
claim #or support due by gratuitous title, without pre)udice to the
provisions o# paragraph 2 o# article 11 :&rticle 12DC;
The prohibition o# compensation when one o# the debts
arises #rom a depositum or commodatum is based on )ustice.
& deposit is made or a commodatum is given on the basis o#
con#idence in the depositary or the borrower. 7t is there#ore,
a matter o# morality, that the depositary or the borrower
should in #act per#orm his obligation% otherwise, the trust or
con#idence o# the depositor or lender would be violated.
"ith respect to #uture support, to allow its e'tinguishments
by compensation would de#eat its e'emption #rom
attachment and e'ecution :&rticle 213, Family Code; and
may e'pose the recipient to misery and starvation.
>owever, support in arrears can be compensated.
_
Art. )12*. /very partner is responsible to the partnership #or damages su##ered by it
through his #ault, and he cannot compensate them with the pro#its and bene#its which he may
have earned #or the partnership by his industry. >owever, the courts may e-uitably lessen this
responsibility i# through the partnerGs e'traordinary e##orts in other activities o# the partnership,
unusual pro#its have been reali6ed.
The depositary cannot set up compensation wK respect to the
things deposited to him. =ut the depositor can set up the
compensation.
Example: & is a warehouseman. = deposits 1111 =uedans
o# rice with &. = also owes & 1111 +ilos o# rice. & cannot
claim compensation but = can set up compensation.
Neither shall there be compensation i# one o# the debts consists
in civil liability arising #rom a penal o##ense :&rticle 12DD;
7# 1 o# the debts consists in civil liability arising #rom a penal
o##ense, compensation would be improper and inadvisable
because the satis#action o# such obligation is imperative.
The person who has the civil liability arising #rom the crime
cannot set up compensation. >owever, the o##ended party is
entitled to set up compensation.
c. Conventional or Contractual :&rticle 12D2;
Contractual or conventional compensation ta+es place when
parties agree to set2o## even i# the re-uisites o# legal
compensation are not present.
The parties may agree upon the compensation o# debts which
are not yet due.
The parties may compensate by agreement any obligations, in
wKc the ob)ective re-uisites provided #or legal compensation are
not present.
d. 1udicial :&rticle 12D;
Mudicial compensation is compensation decreed by the court in a
case where there is a counterclaim.
7# one o# the parties to a suit over an obligation has a claim #or
damages against the other, the #ormer may set it o## by proving
his right to said damages and the amount thereo#.
/##ect o# &ssignment :&rticle 12D3;
+ituation:
There are two credits < credit 7 and credit 77. 7n credit 7, & is the
creditor and = is the debtor. 7n credit 77, = is the creditor and & is the
debtor. & wants to assign credit 7 to C. & cannot assign credit 77 since
it is passive sub)ective novation. Can = now invo+e against C the
compensation o# credit 77(
7t depends9
a. 7# the assignment is with the debtors :=s; consent
*ebtor cannot set up compensation at all unless the right is
reserved.
b. 7# the assignment is with the debtors :=s; +nowledge but without
consent
The debtor can set up compensation with a credit already
e'isting at the time o# the assignment.
c. 7# the assignment is without the debtors :=s; +nowledge
*ebtor can set up as compensation any credit e'isting at the
time he ac-uired +nowledge even i# it arose a#ter the actual
assignment.
4. 2ovation
Art. 1291. #bligations ma" be modified b"+
5'6 Changing their object or principal conditions3
546 ?ubstituting the person of the debtor3
576 ?ubrogating a third person in the rights of the creditor.
Art. 1292. ,n order that an obligation ma" be e-tinguished
b" another which substitute the same% it is imperative that it be so
declared in une.uivocal terms% or that the old and the new
obligations be on ever" point incompatible with each other.
Art. 1293. 2ovation which consists in substituting a new
debtor in the place of the original one% ma" be made even without
the knowledge or against the will of the latter% but not without the
consent of the creditor. Pa"ment b" the new debtor gives him the
rights mentioned in articles '47A and '47B.
Art. 1294. ,f the substitution is without the knowledge or
against the will of the debtor% the new debtor:s insolvenc" or non/
Professor Ruben F. Balane Pa)e +4- of +,-
Creditor
&
C
=
*ebtor
*ebtor Creditor
7
77
fulfillment of the obligations shall not give rise to an" liabilit" on
the part of the original debtor.
Art. 1295. The insolvenc" of the new debtor% who has been
proposed b" the original debtor and accepted b" the creditor% shall
not revive the action of the latter against the original obligor%
e-cept when said insolvenc" was alread" e-isting and of public
knowledge% or known to the debtor% when the delegated his debt.
Art. 1296. 0hen the principal obligation is e-tinguished in
conse.uence of a novation% accessor" obligations ma" subsist onl"
insofar as the" ma" benefit third persons who did not give their
consent.
Art. 1297. ,f the new obligation is void% the original one
shall subsist% unless the parties intended that the former relation
should be e-tinguished in an" event.
Art. 1298. The novation is void if the original obligation was
void% e-cept when annulment ma" be claimed onl" b" the debtor or
when ratification validates acts which are voidable.
Art. 1299. ,f the original obligation was subject to a
suspensive or resolutor" condition% the new obligation shall be
under the same condition% unless it is otherwise stipulated.
Art. 1300. ?ubrogation of a third person in the rights of the
creditor is either legal or conventional. The former is not presumed%
e-cept in cases e-pressl" mentioned in this Code3 the latter must
be clearl" established in order that it ma" take effect.
Art. 1301. Conventional subrogation of a third person
re.uires the consent of the original parties and of the third person.
Art. 1302. ,t is presumed that there is legal subrogation+
5'6 0hen a creditor pa"s another creditor who is preferred%
even without the debtor:s knowledge3
546 0hen a third person% not interested in the obligation% pa"s
with the e-press or tacit approval of the debtor3
576 0hen% even without the knowledge of the debtor% a person
interested in the fulfillment of the obligation pa"s% without
prejudice to the effects of confusion as to the latter:s share.
Art. 1303. ?ubrogation transfers to the persons subrogated
the credit with all the rights thereto appertaining% either against
the debtor or against third person% be the" guarantors or
possessors of mortgages% subject to stipulation in a conventional
subrogation.
Art. 1304. A creditor% to whom partial pa"ment has been
made% ma" e-ercise his right for the remainder% and he shall be
preferred to the person who has been subrogated in his place in
virtue of the partial pa"ment of the same credit.
Professor Ruben F. Balane Pa)e +*4 of +,-
Novation is the e'tinguishment o# an obligation by the substitution or
change o# the obligation by a subse-uent one which e'tinguishes or
modi#ies the #irst, either by changing the ob)ect o# principal conditions,
or by substituting the person o# the debtor, or by subrogating a third
person in the rights o# the creditor.
Novation is the most unusual mode o# e'tinguishing an obligation. 7t is
the only mode whereby an obligation is e'tinguished and a new
obligation is created to ta+e its place. The other modes o#
e'tinguishing an obligation are absolute in the sense that the
e'tinguishment o# the obligation is total. Novation, on the other hand,
is a relative mode o# e'tinguishing an obligation.
& compromise is a #orm o# novation. The di##erence is that a
compromise has some )udicial participation. The e##ect o# compromise
is the same as novation.
Classi#ication o# Novation
a. .ub)ective or Aersonal Novation < change o# one o# the sub)ects
i. &ctive sub)ective
This a change o# creditor.
This is also +nown as subrogation.
2 Iinds o# .ubrogation
1. 8egal :&rticle 112;
7t is presumed that there is legal subrogation9
a. "hen a creditor pays another creditor who is
pre#erred, even without the debtorGs +nowledge%
b. "hen a third person, not interested in the
obligation, pays with the e'press or tacit approval
o# the debtor
c. "hen, even without the +nowledge o# the debtor,
a person interested in the #ul#illment o# the obliga2
tion pays, without pre)udice to the e##ects o#
con#usion as to the latterGs share%
2. Conventional
Conventional subrogation o# a third person re-uires
the consent o# the original parties and o# the third
person :&rticle 111;
/##ect o# .ubrogation
1. & creditor, to whom partial payment has been made, may
e'ercise his right #or the remainder, and he shall be
pre#erred to the person who has been subrogated in his
place in virtue o# the partial payment o# the same credit
:&rticle 11$;
2. .ubrogation trans#ers to the person subrogated the credit
with all the rights thereto appertaining, either against the
debtor or against third persons, be they guarantors or
possessors o# mortgages, sub)ect to stipulation in a
conventional subrogation :&rticle 11;
ii. Aassive sub)ective
Professor Ruben F. Balane Pa)e +** of +,-
This is a change o# debtor.
Types o# Aassive .ub)ective
1. Expromission :&rticle 12E;
7n expromission the changing o# the debtor is not
upon the old debtorGs initiative. 7t could be upon the
initiative o# the creditor or o# the new debtor.
This re-uires the consent o# the creditor since the
changing o# the debtor may pre)udice him. This
re-uires the consent o# the new debtor since he is the
one who will pay.
The consent o# the old debtor is not re-uired.
The intent o# the parties must be to release the old
debtor. The release o# the old debtor is absolute even
i# it turns out that the new debtor is insolvent.
Cases o# expromission are -uite rare.
2. Delegacion :&rticle 12E3;
7n delegacion the change is at the debtors initiative.
The consent o# the old debtor :delegante;, the new
debtor :delegado;, and the creditor :delegatario; are
all re-uired.
The intent o# the parties must be to release the old
debtor. >owever, release o# the old debtor is not
absolute. >e may be held liable
a. 7# the new debtor was already insolvent at the
time o# the delegacion% and
b. .uch insolvency was either +nown to the old
debtor or o# public +nowledge
b. 0b)ective or ,eal Novation
7n ob)ective novation there is a change in the ob)ect or in the
principal conditions.
Novation by a change in the principal conditions is the most
problematic +ind o# novation because one has to determine
whether or not the change in the conditions is principal or
merely incidental.
7# the amount o# debt is increased, Castan thin+s that there is a
novation while Caguioa thin+s there is no novation. Aro#essor
=alane thin+s that Castan is correct. The old obligation is
merged with the new.
7# the amount o# the debt is decreased, according the .C in
+andico vs. Piguing there is no novation. 0ne can loo+ at the
decrease o# the amount as a partial remission.
7n 9illar vs. ;A there is no novation i# the terms o# the payment
are changed. 7n this case, there was a change #rom lump sum
to installment payments.
7n ?ua vs. @ap not only was the amount reduced, mode o#
payment was changed #rom single payment to installment.
Professor Ruben F. Balane Pa)e +*. of +,-
Finally, a mortgage was constituted. The .C said in ?ua vs. @ap
that there was a novation. There#ore, a mere change in the
amount or mode o# payment i# ta+en singly is not a novation.
=ut ta+en together, there is a novation.
7n Inc#austi vs. @ulo, the .C said that the mere e'tension o#
time is not a novation #or the period does a##ects only the
per#ormance and not the creation o# an obligation. 7n another
case, the .C said that the shortening o# the period is a novation.
c. Bi'ed Novation
Bi'ed is a combination o# both sub)ective and ob)ective
novation.
,e-uisites o# Novation
a. There must be a previous valid obligation
The novation is void i# the original obligation was void, e'cept
when annulment may be claimed only by the debtor, or when
rati#ication validates acts which are voidable :&rticle 12ED;
b. There must be an agreement o# the parties to create the new
obligation
7# the original obligation was sub)ect to a suspensive or
resolutory condition, the new obligation shall be under the same
condition, unless it is otherwise stipulated :&rticle 12EE;
c. There must be an e'tinguishments o# the old obligation
Aro#essor =alane considers this as an e##ect rather than a
re-uisite o# novation.
7n order that an obligation may be e'tinguished by another
which substitute the same, it is imperative that it be so declared
in une-uivocal terms, or that the old and the new obligations be
on every point incompatible with each other :&rticle 12E2;
d. The new obligation must be valid
7# the new obligation is void, the original one shall subsist,
unless the parties intended that the #ormer relation should be
e'tinguished in any event :&rticle 12EC;
/##ect o# Novation
&ccessory obligations may subsist only inso#ar as they may bene#it
third persons who did not give their consent, e.g. stipulation pour
autrui
General *ule+ 7n a novation, the accessory obligation is
e'tinguished.
Exception: 7n an active sub)ective novation, the guarantors,
pledgors, mortgagors are not released.
!nder &rticle 11, accessory obligations are not e'tinguished. .o
there is a con#lict( >ow do you resolve( &ccording to
commentators, &rticle 11 is an e'ception to &rticle 12E4.
= owes I A1 B. B is a guarantor o# =. = is substituted by !. = is
released. B is also released under &rticle 12E4. B is released since
he guarantees =s per#ormance and not =s. = might have a good
Professor Ruben F. Balane Pa)e +*+ of +,-
credit standing but ! may not. B might be pre)udiced i# he has to
guarantee !s per#ormance.
7# there is a change in the creditor under &rticle 11, the guarantor
is not released since it doesnt ma+e a di##erence. "hat the
guarantor guarantees is the integrity o# the debtor.
C. &nnulment
D. ,escission
E. Ful#illment o# a ,esolutory Condition
11. Arescription
11. *eath in Certain 7nstances
12. For e'ample, death e'tinguishes obligations which are purely personal :i.e.
obligations in marriage, obligation to support, obligations in a
partnership, etc.;
1. ,enunciation by the Creditor :&rticle 4;
The creditor waives the obligation.
The renunciation need not be in any speci#ic #orm.
,enunciation and remission are 2 di##erent things. & renunciation is a
re#usal by the creditor to en#orce his claim with the intention o# waiving
it. & remission is in the nature o# a donation.
1$. Compromise
13. &rrival o# a ,esolutory Term
14. Butual *issent or *esistance :+aura vs. D-P;
1C. !nilateral "ithdrawal
General *ule+ !nilateral withdrawals are not allowed.
Exception: Aartnership
1D. Change o# Civil .tatus
For e'ample, i# the marriage is annulled, certain obligations are
e'tinguished, li+e the obligations to live together and to support one
another.
1E. Re5us +ic +tanti5us :&rticle 124C;
21. "ant o# 7nterest
Example: & owns a pe+ing duc+ restaurant with a secret recipe #or
preparing pe+ing duc+. & disclosed the secret recipe to =, his coo+. =
is then prohibited in his employment contract to wor+ in another
restaurant within 3 years #rom leaving &s restaurant. Two years a#ter
= le#t, & closes his restaurant and opens a hardware store. = can now
wor+ in a restaurant.
21. Mudicial 7nsolvency
The e##ect o# )udicial insolvency is that all unpaid debts are written o##
#or good. Thus, even i# the debtor has improved his #inancial situation
because o# )udicial insolvency, there is no need #or the debtor to pay his
unpaid debts.
,,. Contracts
Professor Ruben F. Balane Pa)e +*/ of +,-
A. General &ro(isions
'. Definition
Art. 1305. A contract is a meeting of the minds between 4
persons whereb" one binds himself% with respect to the other% to
give something or to render some service.
Aro#essor =alane thin+s that the de#inition in &rticle 113 is inaccurate.
The term OpersonsP should be submitted by the term OpartiesP. &lso,
contracts may be multilateral% there can be more than 2 parties
involved :i.e. partnership;.
4. Characteristics of Contracts
a. ,'li/ator! .orce
Art. 1315. Contracts are perfected b" mere consent% and
from that moment the parties are bound not onl" to the
fulfillment of what has been e-pressl" stipulated but also to all
the conse.uences which% according to their nature% ma" be in
keeping with good faith% usage and law.
General *ule+ Contracts are per#ected by mere consent < the
principle o# consensuality :&rticle 113;
Exception: ,eal contracts, such as deposit, pledge, and
commodatum are not per#ected until the delivery o# the ob)ect o#
the obligation :&rticle 114;
0bligations arising #rom contracts have the #orce o# law between the
parties and should be complied with in good #aith :&rticle 113E;
Art. 1314. An" third person who induces another to
violate his contract shall be liable for damages to the other
contracting part".
7t is not clear whether &rticle 11$ is a tortious liability or a
contractual liability. Aro#essor =alane considers it as only a tortious
liability so it is not violative o# the rule on relativity o# contracts.
&rticle 11$ is really a -uasi2delict.
,e-uisites
i. /'istence o# a valid contract
ii. Inowledge by the
rd
person o# the e'istence o# the contract
iii. 7nter#erence by the
rd
person in the contractual relation without
legal )usti#ication
'. 0utualit!
Art. 1308. The contract must bind both contracting
parties3 its validit" or compliance cannot be left to the will of
one of them.
Art. 1309. The determination of the performance ma" be
left to a third person% whose decision shall not be binding until it
has been made known to both contracting parties.
Professor Ruben F. Balane Pa)e +*, of +,-
Art. 1310. The determination shall not be obligator" if it
is evidentl" ine.uitable. ,n such case% the courts shall decide
what is e.uitable under the circumstances.
&n e'ample o# a determination made by a
rd
person :&rticle 11E;
is the #i'ing o# the price by the
rd
person.
The contract may be revo+ed i# there is mutual dissent.
c. Relati(it!
Art. 1311$ %1. Contracts take effect onl" between the
parties% their assigns and heirs% e-cept in case where the rights
and obligations arising from the contract are not transmissible
b" their nature% or b" stipulation or b" provision of law. The heir
is not liable be"ond the value of the propert" he received from
the decedent.
General *ule+ The contract is binding only upon the parties and
their successors :&rticle 111;. >owever, i# the contract is purely
personal :intuitu personae;, then the contract will not bind assigns
and heirs.
Exception: parties are a##ected by the contract in the #ollowing
instances and can ta+e appropriate action
i. Accion pauliana :&rticle 11CC;
Art. 1177. The creditors% after having pursued the
propert" in possession of the debtor to satisf" their
claims% ma" e-ercise all the rights and bring all the
actions of the latter for the same purpose% save those
which are inherent in his person3 the" ma" also impugn
the acts which the debtor ma" have done to defraud
them.
&n rescissory action involving a contract in #raud o# creditors.
Art. 1313. Creditors are protected in cases of
contracts intended to defraud them.
ii. Accion directa
& direct :not subrogatory; action by the creditor against his
debtors debtor, a remedy which gives the creditor the
prerogative to act in his own name, such as the actions o#
the lessor against the sublessee :&rticle 1432
;, the laborer
o# an independent contractor against the owner :&rticle
1C2E
;, the principal against the subagent :&rticle 1DE
;,
_
Art. )&$%. The sublessee is subsidiarily liable to the lessor #or any rent due #rom the lessee.
>owever, the sublessee shall not be responsible beyond the amount o# rent due #rom him, in
accordance with the terms o# the sublease, at the time o# the e'tra2)udicial demand by the
lessor.
Aayments o# rent in advance by the sublessee shall be deemed not to have been made,
so #ar as the lessorGs claim is concerned, unless said payments were e##ected in virtue o# the
custom o# the place.
and the vendor2a2retro against the trans#eree o# the vendee
:&rticle 141D
;.
iii. Article )()%
Art. 1312. ,n contracts creating real rights% third
persons who come into possession of the object of the
contract are bound thereb"% subject to the provisions of
the ;ortgage !aw and the !and *egistration !aws.
iv. +tipulation pour autrui < stipulation in #avor o# a
rd
person
Art. 1311$ %2. ,f a contract should contain some
stipulation in favor of a third person% he ma" demand its
fulfillment provided he communicated his acceptance to
the obligor before its revocation. A mere incidental
benefit or interest of a person is not sufficient. The
contracting parties must have clearl" and deliberatel"
conferred a favor upon a third person.
,e-uisites
1. There must be a stipulation in #avor o# a
rd
person
2. That stipulation in #avor o# a
rd
person should be a part
and not the whole o# the contract
. & clear and deliberate intent to con#er a bene#it on a
rd
person and not merely incidental
7n the case o# 9andarin >illa vs. ;A the credit card
holder was held to have a right to sue under the
contract between the establishment and the ban+.
The .upreme Court said that its a stipulation pour
autrui to con#er bene#it on the customer to purchase
on credit.
>owever, Aro#essor =alane believes that it is
debatable whether an agreement between a credit
card company and establishment is a clear and
deliberate con#erment o# bene#it on a third party. >e
would have concurred with the decision in 9andarin
>illa i# the basis was -uasi2delict.
_
Art. )1%2. Those who put their labor upon or #urnish materials #or a piece o# wor+
underta+en by the contractor have an action against the owner up to the amount owing #rom
the latter to the contractor at the time the claim is made. >owever, the #ollowing shall not
pre)udice the laborers, employees and #urnishers o# materials9
:1; Aayments made by the owner to the contractor be#ore they are due%
:2; ,enunciation by the contractor o# any amount due him #rom the owner.
This article is sub)ect to the provisions o# special laws.
Art. )/2(. 7n the cases mentioned in Nos. 1 and 2 o# the preceding article, the principal may
#urthermore bring an action against the substitute with respect to the obligations which the
latter has contracted under the substitution.
`
Art. )&0/. The vendor may bring his action against every possessor whose right is derived
#rom the vendee, even i# in the second contract no mention should have been made o# the right
to repurchase, without pre)udice to the provisions o# the Bortgage 8aw and the 8and
,egistration 8aw with respect to third persons.
$. That the #avorable stipulation should not be conditioned
or compensated by any +ind o# obligation whatever
3. Neither o# the contracting parties bears the legal
representation o# authori6ation o# the
rd
parties
7# the
rd
parties is represented, then the principles o#
agency apply.
4. The
rd
person must have communicated his acceptance
to the obligor be#ore its revocation
d. Autono! o. ;ill
Art. 1306. The contracting parties ma" establish such
stipulations% clauses% terms and conditions as the" ma" deem
convenient% provided the" are not contrar" to law% morals% good
customs% public order% or public polic".
7. 9lements of a Contract
a. Essential Eleents
Art. 1318. There is no contract unless the following
re.uisites concur+
5'6 Consent of the contracting parties3
546 #bject certain which is the subject matter of the
contract3
576 Cause of the obligation which is established.
The essential elements are those without which there can be no
contract. These elements are, in turn, subdivided into common
:communes;, special :especiales;, and e'traordinary
:especialisimos;. The common elements are those which are
present in all contracts, such as consent, ob)ect certain, and cause.
The special elements are present only in certain contracts, such as
delivery in real contracts or #orm in solemn ones. The e'traordinary
elements are those which are peculiar to a speci#ic contract :i.e.
price in sales;.
i. ;onsent
1. Consent in 5eneral
*e#inition o# Consent
Art. 1319$ 1
st
sentence. Consent is
manifested b" the meeting of the offer and the
acceptance upon the thing and the cause which are
to constitute the contract.
/lements o# Consent
a. Alurality o# sub)ects
b. Capacity
c. 7ntelligent and #ree will
d. /'press or tacit mani#estation o# the will
e. Con#ormity o# the internal will and its mani#estation
2. 0##er
&n o##er is a unilateral proposition which 1 party ma+es to
the other #or the celebration o# a contract.
Art. 1321. The person making the offer ma"
fi- the time% place% and manner of acceptance% all of
which must be complied with.
,e-uisites o# 0##er
a. *e#inite
The o##er must be de#inite, so that upon
acceptance, an agreement can be reached on the
whole contract.
b. Complete
The o##er must be complete, indicating with
su##icient clearness the +ind o# contract intended
and de#initely stating the essential conditions o#
the proposed contract as well as the non2essential
ones desired by the o##eror.
c. 7ntentional
&n o##er without seriousness, made in such
manner that the other party would not #ail to
notice such lac+ o# seriousness, is absolutely
without )uridical e##ects and cannot give rise to a
contract :i.e. must not be made in )est, or a
pran+;.
. &cceptance
a. ,e-uisites o# &cceptance
i. !ne-uivocal
ii. !nconditional
7# the acceptance is -uali#ied, then that is a
counter2o##er :&rticle 11E,
rd
sentence;.
&n ampli#ied acceptance may or may not be an
acceptance o# the original o##er. 7t depends on the
circumstances.
Example: & o##ers to sell 1111 +ilos o# cement. =
says he wants to buy 2111 +ilos o# cement. 7s the
1111 +ilos accepted( 7t depends. 7# buyer wants
a bloc+ sale, that is, only 2111 +ilos and nothing
less, then it is a counter2o##er.
b. Bani#estation o# &cceptance
Art. 1320. An acceptance ma" be e-press or
implied.
.ilence is ambiguous. .ilence in itsel# is neither
acceptance nor re)ection. Can it mean acceptance(
0ne must loo+ at the circumstances.
Professor Ruben F. Balane Pa)e +*- of +,-
Examples: & and = are own stalls which sell rice. C
delivers 1111 +ilos o# rice to & every .unday. 7# & is
not there, C )ust leaves it with &s assistant. C tries
to do business with =. = is not there though. C leaves
rice with =s assistant. = does not call C. =oth & and
= are silent. & accepted the rice because o# the
arrangement. 7# & did not want to accept the rice,
then & should have called. =s silence is not
acceptance.
c. Cognition Theory
Article 1319$ 2
n+
%. Acceptance made b"
letter of telegram does not bind the offerer e-cept
from the time it came to his knowledge.
This is +nown as the Cognition Theory. Commercial
law uses the Theory o# Bani#estation.
0##er and acceptance ta+es e##ect only #rom the time
+nowledge is ac-uired by the person to whom it is
directed. 7# during intervening time, the o##er or
acceptance is e'tinguished by deathKinsanity, such
o##er or acceptance has no more e##ect.
Example: 0##eror gave o##er on Barch 1. The o##er
reached the o##eree on Barch 3. From the point o#
view o# the o##eror, o##er is counted #rom Barch 3. >e
can still countermand be#ore Barch 3.
7# the parties are #ace to #ace, then there is no
problem since there is no time gap.
The problem arises when there is a time gap. !nder
&rticle 11E, there is per#ection o# the contract when
there is +nowledge o# the other partys acceptance.
This has serious conse-uences.
Example ). The o##er was made in *avao on
February 1. The o##er was sent through mail which is
received in Banila on February 3. 0n the same day,
the o##er is accepted. Bail is sent to *avao on
February 3 signi#ying acceptance. 0n February D, the
party in Banila becomes insane. 0n February 1, the
mail reaches *avao. &ccording to Aro#essor =alane,
under &rticle 12, there is no contract since there
was no contractual capacity.
Example %. The o##er was made in =acolod on Barch
1. 7t was received in Que6on City on Barch . 0n
Barch $, the o##eree sends his acceptance. 0n Barch
3, the o##eror countermands o##er. Now, both
acceptance and countermand o# o##er are in the mail.
"hichever reaches the destination #irst will be
counted.
d. 0##ers Through &gents
Art. 1322. An offer made through an agent is
accepted from the time acceptance is
communicated to him.
Professor Ruben F. Balane Pa)e +.4 of +,-
e. /##ect o# *eath, 7nsanity
Art. 1323. An offer becomes ineffective upon
the death% civil interdiction% insanit" or insolvenc"
of either part" before acceptance is conve"ed.
#. "ithdrawal o# the 0##er
Art. 1324. 0hen the offeror has allowed the
offeree a certain period to accept% the offer ma" be
withdrawn at an" time before acceptance b"
communicating such withdrawal% e-cept when the
option is founded upon consideration% something
paid or promised.
&rticle 12$ is related to &rticle 1$CE, ?2
. They
actually say the same thing.
. o##ers to sell a car to = #or A11,111. = needs to
thin+ about it, and so = as+s #or 1 days and pays .
A3,111. The payment o# A3,111 is a distinct
consideration #rom the price o# the car. This distinct
consideration o# A3,111 is payment #or the 1 days.
= is paying #or time. The option contract is separate
#rom the contract o# sale. . cannot sell the car to
anybody else within that 12day period. 7# . sells the
car to someone else within the 12day period, he is
guilty o# contractual breach. =ut = can buy the car
be#ore the end o# the 12day period and such will be a
valid sale.
thin+ about it, and so = as+s #or 1 days. = does not
pay . #or time, but . promises to give = 1 days. 7n
this case there is no option contract. >owever, in
+anc#ez vs. Rigos, the .upreme Court said that even
i# there was no option contract, . must still
communicate the withdrawal o# the o##er to =. 7# .
does not communicate his withdrawal, that is
tantamount to a continuing o##er. Aro#essor =alane
does not agree with this. &ccording to him, i# there is
no valid option contract, there should be no
continuing o##er. &ccording to Aro#essor =alane, the
.upreme Court should have e'plained that.
thin+ about it, and so = as+s #or 1 days and pays
A3,111 to .. = decides to buy the car within 1 days.
The car is not sold to anybody else. . does not want
to sell the car to =. = can sue . #or speci#ic
per#ormance < compel . to sell him the car.
thin+ about it, and so = as+s #or 1 days and pays
A3,111 to .. = decides to buy the car within 1 days.
=e#ore = is able to buy the car, . sells the car to T. =
`
Art. )*12 '%. &n accepted unilateral promise to buy or to sell a determinate thing #or a price
certain is binding upon the promissor i# the promise is supported by a consideration distinct
#rom the price.
Professor Ruben F. Balane Pa)e +.* of +,-
can sue . #or damages. = cannot sue #or speci#ic
per#ormance since the car has been sold to an
innocent purchaser.
& right o# #irst re#usal is di##erent #rom an option
contract. & right o# #irst re#usal is the right to have
#irst opportunity to purchase or the right to meet any
other o##er. 0n the other hand, an option contact
limits the promissors power to revo+e an o##er. The
right o# #irst re#usal is not covered by the Civil Code.
& right o# #irst re#usal is a statement by a person to
another that i# the #ormer decides to sell the ob)ect,
the latter will have the #irst o##er. >ere, the ob)ect is
determinable. =ut the e'ercise o# the right to buy is
conditioned on the sellers decision to sell on terms
which are not yet certain.
&ccording to E=uatorial vs. 9a8!air the re-uirement
o# separate consideration is not applicable in a right o#
#irst re#usal. &ccording to Aro#essor =alane, this is
peculiar since an option contract is more #irm and yet
it re-uires the payment o# separate consideration but
a right o# #irst re#usal does not. >owever, in Liton"ua
vs. ;A the .upreme Court said that in a right o# #irst
re#usal, the consideration #or the loan or mortgage is
already a part o# the consideration #or the right o# #irst
re#usal.
7n Ang @u vs. ;A, the .C said that an action #or
speci#ic per#ormance will not lie against the
promissor. >owever, a complaint under &rticle 1E #or
damages may be #iled i# the actions o# the promissor
are whimsical. 7n E=uatorial vs. 9a8!air the right o#
#irst re#usal was violated when the vendor sold the
ob)ect to another person. The .C in E=uatorial vs.
9a8!air said that an action #or speci#ic per#ormance
may be #iled. E=uatorial vs. 9a8!air is totally
inconsistent with Ang @u vs. ;A.
The .upreme Court has held (E=uatorial vs. 9a8!air
ParaDa=ue Kings vs. ;A Liton"ua vs. ;A PEP vs. ;A)
that the right o# #irst re#usal is en#orceable by an
action #or speci#ic per#ormance. &nd that the actual
vendee may be re-uired to sell the property to the
holder o# the right o# #irst re#usal at the price which he
bought it.
>owever, in a recent case, Rosencorr vs. ;A (9arc#
/ %00)) the .upreme Court has held that the right
o# #irst re#usal need not be written to be
unen#orceable since it is not included in the .tatute o#
Frauds. &lso, i# the vendee is in good #aith, he may
not be compelled by speci#ic per#ormance since he
relied on a title which is clean. The remedy is to go
a#ter the vendor.
7n a right o# #irst re#usal, there is no de#inite o##er
since the vendor has to option o# deciding not to sell
Professor Ruben F. Balane Pa)e +.. of +,-
the ob)ect. &lso, in a right o# #irst re#usal, there is no
need #or a separate consideration. 7n an option
contract, there is a de#inite o##er. &ccording to
Aro#essor =alane, the right o# #irst re#usal is in#erior to
an option contract since there is no de#inite o##er.
Aro#essor =alane does not understand why an action
#or speci#ic per#ormance is allowed in violations o#
rights o# #irst re#usal but not in the case o# option
contracts when the ob)ect is sold to another person.
"hy is the .C giving greater legal e##ect to a right o#
#irst re#usal which is more tentative( &lso, where the
.C get these rules since the right o# #irst re#usal is not
covered by the Civil Code.
g. &dvertisements
Art. 1325. >nless it appears otherwise%
business advertisements of things for sale are not
definite offers% but mere invitations to make an
offer.
Art. 1326. Advertisements for bidders are
simpl" invitations to make proposals% and the
advertiser is not bound to accept the highest or
lowest bidder% unless the contrar" appears.
Bost advertisements are simply invitations to ma+e
an o##er and are not o##ers in themselves since not all
the necessary terms can #it in the advertisement.
/ven i# the ad had all the necessary terms, its still an
invitation to ma+e o##er since there is no de#inite
person to whom the o##er is being made :public o##er;.
h. .imulated Contracts
Art. 1345. ?imulation of a contract ma" be
absolute or relative. The former takes place when
the parties do not intend to be bound at all3 the
latter% when the parties conceal their true
agreement.
Art. 1346. An absolutel" simulated or
fictitious contract is void. A relative simulation%
when it does not prejudice a third person and is not
intended for an" purpose contrar" to law% morals%
good customs% public order or public polic" binds
the parties to their real agreement.
i. &bsolutely .imulated :contrato simulado;
&bsolute simulation o# a contract ta+es place when
the parties do not intent to be bound at all :&rticle
1$3;.
For e'ample, T pretends to sell his car to avoid
ta' liability. >owever T has no real intention to
sell the car.
&n absolutely simulated or #ictitious contract is
void :&rticle 1$4;
ii. ,elatively .imulated :contrato disimulado;
Professor Ruben F. Balane Pa)e +.+ of +,-
,elative simulation o# a contract ta+es place when
the parties conceal their true agreement :&rticle
1$3;.
7n a relatively simulated contract, the parties
enter into a contract but disguise it as another.
For e'ample, T has many creditors, and they are
going a#ter Ts car. T cannot donate his car to H
since the creditors will )ust resort to accion
pauliana. .o, T antedates a contract o# sale,
selling his car to H, e'cept that Ts intention is to
donate his car to H.
& relatively simulated contract, when it does not
pre)udice a
rd
person and is not intended #or any
purpose contrary to law, morals, good customs,
public order or public policy binds the parties to
their real agreement :&rticle 1$4;.
The law will apply the rules o# the true contract
and not the ostensible contract.
ii. .5"ect
Art. 1347. All things which are not outside the
commerce of men% including future things% ma" be the
object of a contract. All rights which are not
intransmissible ma" also be the object of contracts.
2o contract ma" be entered into upon future
inheritance e-cept in cases e-pressl" authori$ed b" law.
All services which are not contrar" to law% morals%
good customs% public order or public polic" ma" likewise
be the object of a contract.
Art. 1348. ,mpossible things or services cannot be
the object of contracts.
Art. 1349. The object of ever" contract must be
determinate as to its kind. The fact that the .uantit" is
not determinate shall not be an obstacle to the e-istence
of the contract% provided it is possible to determine the
same% without the need of a new contract between the
parties.
The ob)ect o# the contract is the prestation. Thus, it is
always the conduct which is to be observed. 7t is not a
concrete ob)ect li+e a car. 7n a contract o# sale, the ob)ect is
the delivery o# the ob)ect and not the ob)ect itsel#.
The provisions on ob)ect however blur the distinction
between the ob)ect o# the contract, the prestation, and the
ob)ect o# the prestation. &ccording to Aro#essor =alane,
these provisions are not #atal though.
,e-uisites o# 0b)ect
1. The ob)ect must be within the commerce o# man, either
already e'isting or in potency :&rticle 1$C;
Professor Ruben F. Balane Pa)e +./ of +,-
"ithin the commerce o# man means that the ob)ect is
capable o# appropriation and transmission.
The term Oin potencyP means that the ob)ect will
come into e'istence in the #uture.
5enerally in reciprocal contracts particularly sales, the
sale o# #uture things is allowed. For e'ample, it is
possible to sell the #uture harvest o# a #arm.
The coming into being o# the #uture thing is a
suspensive condition.
Emptio rei speratae is a conditional sale. There is a
suspensive condition. 7# the #uture thing does not
come into e'istence, then there is no contract o# sale.
Emptio spei is the sale o# a hope. /ven i# the #uture
thing does not materiali6e, the buyer must pay since
the buyer is ta+ing a chance. :i.e. sale o# lotto
tic+et;. >ope is a present thing.
.ome #uture things are not allowed to be ob)ects o#
the prestation. The law does not allow contracts on
#uture inheritance.
2. The ob)ect must licit, or not be contrary to law, morals,
good customs, public policy or public order :&rticle 1$C;
. The ob)ect must be possible :&rticle 1$D;
7# the ob)ect is impossible, then the contract is void
#or lac+ o# cause.
&rticle 1$D does not tal+ o# supervening impossibility
which is a mode o# e'tinguishments.
7mpossibility under &rticle 1$D must be actual and
contemporaneous with the ma+ing o# the contract.
$. The ob)ect must be determinate as to its +ind and
determinable as to its -uantity :&rticle 1$E;
The ob)ect need not be individuali6ed. 7t must be
determinate as to its +ind or species.
The -uantity o# the ob)ect may be indeterminate, so
long as the right o# the creditor is not rendered
illusory.
3. The ob)ect must be transmissible
This is actually a redundancy since this is already in
the re-uisite o# being within the commerce o# man.
iii. ;ause
Art. 1350. ,n onerous contracts the cause is
understood to be% for each contracting part"% the
prestation or promise of a thing or service b" the other3 in
remunerator" ones% the service or benefit which is
remunerated3 and in contracts of pure beneficence% the
mere liberalit" of the benefactor.
Professor Ruben F. Balane Pa)e +., of +,-
Art. 1351. The particular motives of the parties in
entering into a contract are different from the cause
thereof.
Art. 1352. Contracts without cause% or with
unlawful cause% produce no effect whatever. The cause is
unlawful if it is contrar" to law% morals% good customs%
public order or public polic".
Art. 1353. The statement of a false cause in
contracts shall render them void% if it should not be
proved that the" were founded upon another cause which
is true and lawful.
Art. 1354. Although the cause is not stated in the
contract% it is presumed that it e-ists and is lawful% unless
the debtor proves the contrar".
Art. 1355. 9-cept in cases specified b" law% lesion
or inade.uac" of cause shall not invalidate a contract%
unless there has been fraud% mistake or undue influence.
The cause o# a contract is the Owhy o# the contract,P the
immediate and most pro'imate purpose o# the contract, the
essential reason which impels the contracting parties to
enter into it and which e'plains and )usti#ies the creation o#
the obligation through such contract.
The cause is di##erent #rom consideration. Consideration in
the &nglo2&merican sense must always be valuable or
capable o# pecuniary estimation. Cause, on the other hand,
need not be material at all, and may consist in a moral
satis#action #or the promissor.
,e-uisites o# Cause
1. 7t must e'ist
2. 7t must be true
. 7t must be licit
Cause is di##erent #rom motive. Cause is the pro'imate why
while motive is the ultimate why. For e'ample, & wants to
sell his house #or A41 B because & is moving to Canada. = is
willing to buy the house #or A41 B. 7n this case, the cause
#or & is the A41 B while the cause #or = is the house. &s
motive is to dispose o# the house which he does not need
since & is going to Canada.
8i+e #ailure o# or lac+ o# ob)ect, the #ailure o# cause has an
e##ect on the contract. 7# there is no cause or the cause is
illegal, then the contract is void. This is unli+e the lac+ o#
consent. "hen consent is lac+ing, the contract is not void.
The contract is merely voidable.
General *ule+ Failure o# motive as a General *ule does
not a##ect the contract.
Exception: Botive a##ects the contract when
1. The motive becomes a suspensive condition% or
2. The reali6ation o# the motive is the cause #or the contract
and there is an intervening serious mista+e o# #act
7n onerous contracts, the cause is the prestation or promise
o# a thing or service by the other party.
7t has been held that, as a mortgage is an accessory
contract, its cause or consideration is the very cause or
consideration o# the principal contract, #rom which it
receives its li#e, and without which it cannot e'ist as an
independent contract (;#ina -an6 vs. Lic#auco).
7n remuneratory contracts, the cause is the service or bene#it
which is remunerated .
& remuneratory contract is one where a party gives
something to another because o# some service or bene#it
given or rendered by the latter to the #ormer, where such
service or bene#it was not due as a legal obligation.
7n gratuitous contracts, the cause is the mere liberality o# the
bene#actor.
*elivery < #or real contracts
Form < #or #ormal contracts
b. #atural Eleents
The natural elements are those which are derived #rom the nature o#
the contract and ordinarily accompany the same. They are
presumed by law, although they can be e'cluded by the contracting
parties i# they so desire.
i. ,ight to resolve :&rticle 11E1;
ii. "arranties in sales contracts
c. Acci+ental Eleents
The accidental elements are those which e'ist only when the parties
e'pressly provide #or them #or the purpose o# limiting or modi#ying
the normal e##ects o# the contract :i.e. conditions, terms, modes;
<. ?tages of a Contract
a. Areparation, conception, or generation, which is the period o#
negotiation and bargaining, ending at the moment o# agreement o# the
parties
b. Aer#ection or birth o# the contract, which is the moment when the
parties come to agree on the terms o# the contract
General *ule+ Contracts are per#ected by mere consent < the
principle o# consensuality :&rticle 113;
Exception: ,eal contracts, such as deposit, pledge, and
commodatum are not per#ected until the delivery o# the ob)ect o#
the obligation :&rticle 114;
c. Consummation or death, which is the #ul#illment or per#ormance o# the
terms agreed upon
3. Classification of Contracts
a. &ccording to *egree o# *ependence
i. Areparatory
& preparatory contract is one which has #or its ob)ect the
establishment o# a condition in law which is necessary as a
preliminary step towards the celebration o# another subse-uent
contract :i.e. partnership, agency;.
ii. Arincipal
& principal contract is one which can subsist independently #rom
other contracts and whose purpose can be #ul#illed by
themselves :i.e. sales, lease;.
iii. &ccessory
&n accessory contract is one which can e'ist only as a
conse-uence o#, or in relation with, another prior contract :i.e.
pledge, mortgage;.
b. &ccording to Aer#ection
i. Consensual
& consensual contract is one which is per#ected by mere
agreement o# the parties :i.e. sales, lease;.
ii. ,eal
& real contract is one which re-uires not only the consent o# the
parties #or their per#ection, but also the delivery o# the ob)ect by
1 party to the other :i.e. commodatum, deposit, pledge;.
c. &ccording to their Form
i. Common or in#ormal
&n in#ormal contract is one which does not re-uire some
particular #orm :i.e. loan, lease;.
ii. .pecial or #ormal
& #ormal contract is one which re-uires some particular #orm
:i.e. donation, chattel mortgage;.
d. &ccording to Aurpose
i. Trans#er o# ownership :i.e. sale;
ii. Conveyance o# use :i.e. commodatum;
iii. ,endition o# service :i.e. agency;
e. &ccording to .ub)ect Batter
i. Things :i.e. sale, deposit, pledge;
ii. .ervices :i.e. agency, lease o# services;
#. &ccording to the Nature o# the 0bligation
i. =ilateral
& bilateral contract is one which gives rise to reciprocal
obligations #or both parties :i.e. sale, lease;.
ii. !nilateral
& unilateral contract is one which gives rise to an obligation #or
only 1 o# the parties :i.e. commodatum, gratuitous deposit;.
g. &ccording to Cause
i. 0nerous
&n onerous contract is one in which each o# the parties aspires
to procure #or himsel# a bene#it through the giving o# an
e-uivalent or compensation :i.e. sale;.
ii. 5ratuitous
& gratuitous contract is one in which one o# the parties proposes
to give to the other a bene#it without any e-uivalent or
compensation :i.e. commodatum;.
h. &ccording to ,is+
i. Commutative
& commutative contract is one in which each o# the parties
ac-uires an e-uivalent o# his prestation and such e-uivalent is
pecuniarily appreciable and already determined #rom the
moment o# the celebration o# the contract :i.e. lease;.
ii. &leatory
&n aleatory contract is one in which each o# the parties has to
his account the ac-uisition o# an e-uivalent prestation , but such
e-uivalent, although pecuniarily appreciable, is not yet
determined, at the moment o# the celebration o# the contract,
since it depends upon the happening o# an uncertain event, thus
charging the parties with the ris+ o# loss or gain :i.e. insurance;.
i. &ccording to Name
i. Nominate
& nominate contract is one which has a name and is regulated
by special provisions o# law :i.e. sale, lease;
ii. 7nnominate
Professor Ruben F. Balane Pa)e +.- of +,-
Art. 1307. ,nnominate contracts shall be regulated b"
the stipulations of the parties% b" the provisions of Titles ,
and ,, of this Gook% b" the rules governing the most
analogous nominate contracts% and b" the customs of the
place.
&n innominate contract is one that does not have a name and is
not regulated by special provisions o# law.
& contract is not void )ust because it has no name. 7t is not a
re-uisite #or validity. & contract may have no name but it can
be valid provided it has all the elements o# a contract and all the
restrictions are respected.
$ Classes o# 7nnominate Contracts
do ut des :O7 give that you giveP;
do ut !acias :O7 give that you doP;
!acio ut des :O7 do that you giveP;
!acio ut !acias :O7 do that you doP;
G. )or o. *ontracts
Art. 1356. Contracts shall be obligator"% in whatever form the"
ma" have been entered into% provided all the essential re.uisites for
their validit" are present. 8owever% when the law re.uires that a
contract be in some form in order that it ma" be valid or enforceable%
or that a contract be proved in a certain wa"% that re.uirement is
absolute and indispensable. ,n such cases% the right of the parties
stated in the following article cannot be e-ercised.
Art. 1357. ,f the law re.uires a document or other special form%
as in the acts and contracts enumerated in the following article% the
contracting parties ma" compel each other to observe that form% once
the contract has been perfected. This right ma" be e-ercised
simultaneousl" with the action upon the contract.
Art. 1358. The following must appear in a public document+
5'6 Acts and contracts which have for their object the creation%
transmission% modification or e-tinguishment of real rights
over immovable propert"3 sales of real propert" or of an
interest therein a governed b" articles '<E7% 2o. 4% and '<E)3
546 The cession% repudiation or renunciation of hereditar" rights or
of those of the conjugal partnership of gains3
576 The power to administer propert"% or an" other power which
has for its object an act appearing or which should appear in a
public document% or should prejudice a third person3
5<6 The cession of actions or rights proceeding from an act
appearing in a public document.
All other contracts where the amount involved e-ceeds five
hundred pesos must appear in writing% even a private one. Gut sales of
goods% chattels or things in action are governed b" articles% '<E7% 2o.
4 and '<E).
Professor Ruben F. Balane Pa)e ++4 of +,-
General *ule+ There is no need #or a speci#ic #orm, but there must still be
some mani#estation o# consent.
Exception: "hen the written #orm is re-uired
1. For validity
7# it not written, the same is void.
/'amples are donations :&rticles C$D, C$E;, antichresis :&rticle
21$;, interest in a loan :&rticle 1E34;, sale o# land by an agent
:&rticle 1DC$;, contribution o# immovables in a partnership :&rticle
1CC;
2. For en#orceability
The contract is unen#orceable i# it is not written.
a. &n agreement that by its terms is not to be per#ormed within a
year #rom the ma+ing thereo# :&rticle 1$1 :a;;
b. & special promise to answer #or the debt, de#ault or miscarriage
o# another :&rticle 1$1 :b;;
c. &n agreement made in consideration o# marriage, other than a
mutual promise to marry :&rticle 1$1 :c;;
d. &n agreement #or the sale o# goods, chattels or things in action,
at a price not less than A311, unless the buyer accepts and
receives part o# such goods and chattels, or the evidence, or
some o# them, o# such things in action, or pay at the time some
part o# the purchase money% but when a sale is made by auction
and entry is made by the auctioneer in his sales boo+, at the
time o# sale, o# the amount and +ind o# property sold, terms o#
sale, price, names o# the purchasers and person on whose
account the sale is made, it is a su##icient memorandum :&rticle
1$1 :d;;
e. &n agreement o# lease #or a period o# more than 1 year, or the
sale o# real property or o# an interest therein :&rticle 1$1 :e;;
#. & representation as to the credit o# a
rd
person :&rticle 1$1
:#;;
g. No e'press trusts concerning an immovable or any interest
therein may be proved by parol evidence :&rticle 1$$;
. For registrability
The #ollowing must appear in a public instrument9
a. &cts and contracts which have #or their ob)ect the creation,
transmission, modi#ication or e'tinguishment o# real rights over
immovable property% sales o# real property or o# an interest
therein governed by &rticles 1$1 :2; and 1$13
b. The cession, repudiation or renunciation o# hereditary rights or
o# those o# the con)ugal partnership o# gains
c. The power to administer property, or any other power which has
#or its ob)ect an act appearing or which should appear in a public
document, or should pre)udice a
rd
person
d. The cession o# actions or rights proceeding #rom an act
appearing in a public document
Professor Ruben F. Balane Pa)e ++* of +,-
Contracts enumerated in &rticle 13D are valid as between the
contracting parties even when they have not been reduced to public
or private writings.
/'cept in certain cases where public instruments and registration
are re-uired #or the validity o# the contract itsel#, the legali6ation o#
a contract by means o# a public writing and its entry in the register
are not essential solemnities or re-uisites #or the validity o# the
contract as between the contracting parties, but are re-uired #or the
purposes o# ma+ing it e##ective as against
rd
person.
&rticle 13C gives the contracting parties the coercive power to
reciprocally compel the e'ecution o# the #ormalities re-uired by law,
as soon as the re-uisites #or the validity o# the contracts are
present.
C. Re.oration o. 3nstruents
Art. 1359. 0hen% there having been a meeting of the minds of
the parties to a contract% their true intention is not e-pressed in the
instrument purporting to embod" the agreement% b" reason of
mistake% fraud% ine.uitable conduct or accident% one of the parties ma"
ask for the reformation of the instrument to the end that such true
intention ma" be e-pressed.
,f mistake% fraud% ine.uitable conduct% or accident has
prevented a meeting of the minds of the parties% the proper remed" is
not reformation of the instrument but annulment of the contract.
Art. 1360. The principles of the general law on the reformation
of instruments are hereb" adopted insofar as the" are not in conflict
with the provisions of this Code.
Art. 1361. 0hen a mutual mistake of the parties causes the
failure of the instrument to disclose their real agreement% said
instrument ma" be reformed.
Art. 1362. ,f one part" was mistaken and the other acted
fraudulentl" or ine.uitabl" in such a wa" that the instrument does not
show their true intention% the former ma" ask for the reformation of
the instrument.
Art. 1363. 0hen one part" was mistaken and the other knew or
believed that the instrument did not state their real agreement% but
concealed that fact from the former% the instrument ma" be reformed.
Art. 1364. 0hen through the ignorance% lack of skill% negligence
or bad faith on the part of the person drafting the instrument or of the
clerk or t"pist% the instrument does not e-press the true intention of
the parties% the courts ma" order that the instrument be reformed.
Art. 1365. ,f two parties agree upon the mortgage or pledge of
real or personal propert"% but the instrument states that the propert"
is sold absolutel" or with a right of repurchase% reformation of the
instrument is proper.
Art. 1366. There shall be no reformation in the following cases+
Professor Ruben F. Balane Pa)e ++. of +,-
5'6 ?imple donations inter vivos wherein no condition is imposed3
546 0ills3
576 0hen the real agreement is void.
Art. 1367. 0hen one of the parties has brought an action to
enforce the instrument% he cannot subse.uentl" ask for its
reformation.
Art. 1368. *eformation ma" be ordered at the instance of either
part" or his successors in interest% if the mistake was mutual3
otherwise% upon petition of the injured part"% or his heirs and assigns.
Art. 1369. The procedure for the reformation of instrument
shall be governed b" rules of court to be promulgated b" the ?upreme
Court.
0nce the minds o# the contracting parties meet, a valid contract e'ists,
whether the agreement is reduced to writing or not. There are instances
however, where in reducing their agreements to writing, the true intention
o# the contracting parties are not correctly e'pressed in the document,
either by reason o# mista+e, #raud, ine-uitable conduct or accident. 7t is in
such cases that re#ormation o# instruments is proper. The action #or such
relie# rests on the theory that the parties came to an understanding, but in
reducing it to writing, through mutual mista+e, #raud or some other reason,
some provision was omitted or mista+enly inserted, and the action to
change the instrument so as to ma+e it con#orm to the contract agreed
upon.
,e#ormation *istinguished #rom &nnulment
The action #or re#ormation o# instruments presupposes that there is a
valid e'isting contract between the parties, and only the document or
instrument which was drawn up and signed by them does not correctly
e'press the terms o# their agreement. 0n the other hand, i# the minds
o# the parties did not meet, or i# the consent o# either one was vitiated
by violence or intimidation or mista+e or #raud, so that no real and valid
contract was made, the action is #or annulment.
&nnulment involves a complete nulli#ication o# the contract while
re#ormation gives li#e to it upon certain corrections.
0peration and /##ect o# ,e#ormation
!pon re#ormation o# an instrument, the general rule is that it relates
bac+ to, and ta+es e##ect #rom the time o# its original e'ecution,
especially as between the parties.
,e-uisites o# ,e#ormation
1. There must have been a meeting o# the minds upon the contract
2. The instrument or document evidencing the contract does not e'press
the true agreement between the parties
. The #ailure o# the instrument to e'press the agreement must be due to
mista+e, #raud, ine-uitable conduct or accident
,e-uisites o# Bista+e
a. That the mista+e is one o# #act
Professor Ruben F. Balane Pa)e +++ of +,-
"henever an instrument is drawn with the intention o#
carrying an agreement previously made, but which, due to
mista+e or inadvertence o# the dra#tsman or cler+, does not
carry out the intention o# the parties, but violates it, there is
a ground to correct the mista+e by re#orming the instrument.
b. That it was common to both parties
& written instrument may be re#ormed where there is a
mista+e on 1 side and #raud or ine-uitable conduct on the
other, as where 1 party to an instrument has made a
mista+e and the other +nows it and conceals the truth #rom
him.
The mista+e o# 1 party must re#er to the contents o# the
instrument and not the sub)ect mater or the principal
conditions o# the agreement. 7n the latter case, an action #or
annulment is the proper remedy.
7# 2 parties agree upon the mortgage or pledge o# real
property or personal property, but the instrument states that
the property is sold absolutely or with a right o# repurchase,
re#ormation is proper.
c. The proo# o# mutual mista+e must be clear and convincing
8imitations o# ,e#ormation
1. ,e#ormation is not proper in the #ollowing cases9
a. .imple donations inter vivos wherein no condition is imposed
b. "ills
c. "hen the real agreement is void
2. "ho may as+ #or re#ormation
a. 7# the mista+e is mutual
,e#ormation may be ordered at the instance o# either party or
his successors in interest
b. 7# the mista+e is not mutual
,e#ormation may be ordered upon petition o# the in)ured party
or his heirs and assigns
. /##ect o# en#orcing an action
"hen one o# the parties has brought an action to en#orce the
instrument, he cannot subse-uently as+ #or its re#ormation.
Professor Ruben F. Balane Pa)e ++/ of +,-
D. 3nterpretation o. *ontracts
"here the parties have reduced their contract into writing, the contents o#
the writing constitutes the sole repository o# the terms o# the agreement
between the parties. "hatever is not #ound in the writing must be
understood as waived and abandoned. 5enerally, there#ore, there can be
no evidence o# the terms o# the contract other than the contents o# the
writing, unless it is alleged and proved that the intention o# the parties is
otherwise.
Art. 1370. ,f the terms of a contract are clear and leave no
doubt upon the intention of the contracting parties% the literal meaning
of its stipulations shall control.
,f the words appear to be contrar" to the evident intention of
the parties% the latter shall prevail over the former.
"hen the terms o# the agreement are so clear and e'plicit that they do not
)usti#y an attempt to read into it any alleged intention o# the parties, the
terms are to be understood literally )ust as they appear on the #ace o# the
contract.
"hen the true intent and agreement o# the parties is established, it must
be given e##ect and prevail over the bare words o# the written agreement.
Art. 1371. ,n order to judge the intention of the contracting
parties% their contemporaneous and subse.uent acts shall be
principall" considered.
Art. 1372. 8owever general the terms of a contract ma" be%
the" shall not be understood to comprehend things that are distinct
and cases that are different from those upon which the parties
intended to agree.
Art. 1373. ,f some stipulation of an" contract should admit of
several meanings% it shall be understood as bearing that import which
is most ade.uate to render it effectual.
Art. 1374. The various stipulations of a contract shall be
interpreted together% attributing to the doubtful ones that sense which
ma" result from all of them taken jointl".
"here the instrument is susceptible o# 2 interpretations, 1 which will ma+e
it invalid and illegal, and another which will ma+e it valid and legal, the
latter interpretation should be adopted.
7n the construction o# an instrument where there are several provisions or
particulars, such a construction is, i# possible, to be adopted as will give
e##ect to all.
Art. 1375. 0ords which ma" have different significations shall
be understood in that which is most in keeping with the nature and
object of the contract.
Art. 1376. The usage or custom of the place shall be borne in
mind in the interpretation of the ambiguities of a contract% and shall
fill the omission of stipulations which are ordinaril" established.
Professor Ruben F. Balane Pa)e ++, of +,-
"hen there is doubt as to the meaning o# any particular language, it should
be determined by a consideration o# the general scope and purpose o# the
instrument in which it occurs.
&n instrument may be construed according to usage in order to determine
its true character.
Art. 1377. The interpretation of obscure words or stipulations in a
contract shall not favor the part" who caused the obscurit".
The party who draws up a contract in which obscure terms or clauses
appear, is the one responsible #or the obscurity or ambiguity% they must
there#ore be construed against him.
Art. 1378. 0hen it is absolutel" impossible to settle doubts b"
the rules established in the preceding articles% and the doubts refer to
incidental circumstances of a gratuitous contract% the least
transmission of rights and interests shall prevail. ,f the contract is
onerous% the doubt shall be settled in favor of the greatest reciprocit"
of interests.
,f the doubts are cast upon the principal object of the contract
in such a wa" that it cannot be known what ma" have been the
intention or will of the parties% the contract shall be null and void.
Art. 1379. The principles of interpretation stated in *ule '47
of
the *ules of Court shall likewise be observed in the construction of
contracts.
R1$e 1604 R1$e" -' C-1(%
Sec. 10. 8nterpretation of a writing according to its legal meaning% ? T#e
$*.1.e -' !()%)*. )" %- 2e )*%e(0(e%e+ cc-(+)*. %- %#e $e.$ /e*)*. )% 2e(" )*
%#e 0$ce -' )%" e;ec1%)-*4 1*$e"" %#e 0(%)e" )*%e*+e+ -%#e(!)"e.
Sec. 11. 8nstrment constred so as to give effect to all provisions% ? I* %#e
c-*"%(1c%)-* -' * )*"%(1/e*% !#e(e %#e(e (e "e5e($ 0(-5)")-*" -( 0(%)c1$(".
"1c# c-*"%(1c%)-* )"4 )' 0-"")2$e4 %- 2e +-0%e+ " !)$$ .)5e e''ec% %- $$.
Sec. 12. 8nterpretation according to intention' general and particlar
provisions% ? I* %#e c-*"%(1c%)-* -' * )*"%(1/e*%4 %#e )*%e*%)-* -' %#e 0(%)e" )" %-
2e 01("1e+> *+ !#e* .e*e($ *+ 0(%)c1$( 0(-5)")-* (e )*c-*")"%e*%4 %#e
$%%e( )" 0(/-1*% %- %#e '-(/e(. S- 0(%)c1$( )*%e*% !)$$ c-*%(-$ .e*e($ -*e
%#% )" )*c-*")"%e*% !)%# )%.
"hen a general and a particular provision are inconsistent, the particular
provision will control.
Sec. 16. 8nterpretation according to circmstances% ? F-( %#e 0(-0e(
c-*"%(1c%)-* -' * )*"%(1/e*%4 %#e c)(c1/"%*ce" 1*+e( !#)c# )% !" /+e4
)*c$1+)*. %#e ")%1%)-* -' %#e "12Bec% %#e(e-' *+ -' %#e 0(%)e" %- )%4 /, 2e "#-!*4
"- %#% %#e B1+.e /, 2e 0$ce+ )* %#e 0-")%)-* -' %#-"e !#-"e $*.1.e #e )" %-
)*%e(0(e%.
Now, ,ule 11, JJ1121E.

Sec. 1D. <ecliar signification of terms% ? T#e %e(/" -' !()%)*. (e
0(e"1/e+ %- #5e 2ee* 1"e+ )* %#e)( 0()/(, *+ .e*e($ cce0%%)-*4 21% e5)+e*ce
)" +/)"")2$e %- "#-! %#% %#e, #5e $-c$4 %ec#*)c$4 -( -%#e(!)"e 0ec1$)(
").*)')c%)-*4 *+ !e(e "- 1"e+ *+ 1*+e("%--+ )* %#e 0(%)c1$( )*"%*ce4 )* !#)c#
c"e %#e .(ee/e*% /1"% 2e c-*"%(1e+ cc-(+)*.$,.
Sec. 1E. Written words control printed% ? W#e* * )*"%(1/e*% c-*")"%"
0(%$, -' !()%%e* !-(+" *+ 0(%$, -' 0()*%e+ '-(/4 *+ %#e %!- (e )*c-*")"%e*%4
%#e '-(/e( c-*%(-$" %#e $%%e(.
Sec. 18. EFperts and interpreters to !e sed in eFplaining certain writings% ?
W#e* %#e c#(c%e(" )* !#)c# * )*"%(1/e*% )" !()%%e* (e +)'')c1$% %- 2e +ec)0#e(e+4
-( %#e $*.1.e )" *-% 1*+e("%--+ 2, %#e c-1(%4 %#e e5)+e*ce -' 0e("-*" "&)$$e+ )*
+ec)0#e()*. %#e c#(c%e("4 -( !#- 1*+e("%*+ %#e $*.1.e4 )" +/)"")2$e %-
+ec$(e %#e c#(c%e(" -( %#e /e*)*. -' %#e $*.1.e.
Sec. 1G. "f two constrctions, which preferred% ? W#e* %#e %e(/" -' *
.(ee/e*% #5e 2ee* )*%e*+e+ )* +)''e(e*% "e*"e 2, %#e +)''e(e*% 0(%)e" %- )%4 %#%
"e*"e )" %- 0(e5)$ .)*"% e)%#e( 0(%, )* !#)c# #e "100-"e+ %#e -%#e( 1*+e("%--+
)%4 *+ !#e* +)''e(e*% c-*"%(1c%)-*" -' 0(-5)")-* (e -%#e(!)"e eI1$$, 0(-0e(4 %#%
)" %- 2e %&e* !#)c# )" %#e /-"% '5-(2$e %- %#e 0(%, )* !#-"e '5-( %#e 0(-5)")-*
!" /+e.
Sec. 17. Constrction in favor of natral right% ? W#e* * )*"%(1/e*% )"
eI1$$, "1"ce0%)2$e -' %!- )*%e(0(e%%)-*"4 -*e )" '5-( -' *%1($ ().#% *+ %#e -%#e(
.)*"% )%4 %#e '-(/e( )" %- 2e +-0%e+.
Sec. 1H. 8nterpretation according to sage% ? A* )*"%(1/e*% /, 2e
c-*"%(1e+ cc-(+)*. %- 1".e4 )* -(+e( %- +e%e(/)*e )%" %(1e c#(c%e(.
9. De.ecti(e *ontracts
The remaining chapters deal with de#ective contracts. The Civil Code made
ma)or and important improvements on this topic. !nli+e the .panish Code,
the de#ective contracts were ambiguous and had unclear classi#ications.
They were simply void or voidable. >ere, in our present code, there are #or
types o# de#ective contracts, #rom the serious to less serious, in the
#ollowing order9
>owever, our Code still has some imper#ections. &s pointed out by
Tolentino, there must be a Orelatively voidP contract. For e'ample, in an
assignment o# lease without authority, this is void as to third parties, but
valid as between the parties.
There have been several cases decided by our .upreme Court wherein a
chattel mortgage over real property was declared void as to third parties
but valid as between the parties.
"hatever imper#ections the Code has, it still is better than other codes on
this topic.
'. *escissible Contracts
Void
,escissible
!nen#orceable
Voidable
Art. 1380. Contracts validl" agreed upon ma" be rescinded
in the cases established b" law.
Art. 1381. The following contracts are rescissible+
5'6 Those which are entered into b" guardians whenever the
wards whom the" represent suffer lesion b" more than one/
fourth of the value of the things which are the object thereof3
546 Those agreed upon in representation of absentees% if the
latter suffer the lesion stated in the preceding number3
576 Those undertaken in fraud of creditors when the latter
cannot in an" other manner collect the claims due them3
5<6 Those which refer to things under litigation if the" have been
entered into b" the defendant without the knowledge and
approval of the litigants or of competent judicial authorit"3
5)6 All other contracts speciall" declared b" law to be subject to
rescission.
Art. 1382. Pa"ments made in a state of insolvenc" for
obligations to whose fulfillment the debtor could not be compelled
at the time the" were effected% are also rescissible.
Art. 1383. The action for rescission is subsidiar"3 it cannot
be instituted e-cept when the part" suffering damage has no other
legal means to obtain reparation for the same.
Art. 1384. *escission shall be onl" to the e-tent necessar" to
cover the damages caused.
Art. 1385. *escission creates the obligation to return the
things which were the object of the contract% together with their
fruits% and the price with its interest3 conse.uentl"% it can be
carried out onl" when he who demands rescission can return
whatever he ma" be obliged to restore.
2either shall rescission take place when the things which are
the object of the contract are legall" in the possession of third
persons who did not act in bad faith.
,n this case% indemnit" for damages ma" be demanded from
the person causing the loss.
Art. 1386. *escission referred to in 2os. ' and 4 of article
'7C' shall not take place with respect to contracts approved b" the
courts.
Art. 1387. All contracts b" virtue of which the debtor
alienates propert" b" gratuitous title are presumed to have been
entered into in fraud of creditors% when the donor did not reserve
sufficient propert" to pa" all debts contracted before the donation.
Alienations b" onerous title are also presumed fraudulent
when made b" persons against whom some judgment has been
issued. The decision or attachment need not refer to the propert"
alienated% and need not have been obtained b" the part" seeking
the rescission.
,n addition to these presumptions% the design to defraud
creditors ma" be proved in an" other manner recogni$ed b" the law
of evidence.
Art. 1388. 0hoever ac.uires in bad faith the things
alienated in fraud of creditors% shall indemnif" the latter for
damages suffered b" them on account of the alienation% whenever%
due to an" cause% it should be impossible for him to return them.
,f there are two or more alienations% the first ac.uirer shall
be liable first% and so on successivel".
Art. 1389. The action to claim rescission must be
commenced within four "ears.
@or persons under guardianship and for absentees% the
period of four "ears shall not begin until the termination of the
former:s incapacit"% or until the domicile of the latter is known.
This is not be to con#used with resolution, discussed in &rticle 11E1.
This chapter on rescissible contracts is the proper rescissible.
&ccording to .caevola, rescission is a process designated to render
ine##icacious a contract validly entered into and normally binding, by
reason o# e'ternal conditions, causing an economic pre)udice to a party
or to his creditors.
& rescissible contract is a contract which is valid because it contains all
the essential re-uisites prescribed by law, but which is de#ective
because o# in)ury or damage to either o# the contracting parties or to
rd
persons, as a conse-uence o# which it may be rescinded by means o# a
proper action #or rescission.
,escission is a remedy granted by law to the contracting parties, and
even to
rd
persons, to secure the reparation o# damages caused to
them by a contract, even i# the same should be valid, by means o# the
restoration o# things to their condition prior to the celebration o# the
contract.
,e-uisites o# ,escission
a. The contact must be a rescissible contract under &rticle 1D1 or
&rticle 1D2
The #ollowing contracts are rescissible
i. Those entered into by guardians whenever the whom they
represent su##er lesion by more than _ o# the value o# things
which are the ob)ect thereo# :&rticle 1D1 :1;;
,escission shall not ta+e place with respect to contracts
approved by the court :&rticle 1D4;.
&s a rule, when a guardian enters into a contract
involving the disposition o# the wards property, the
guardian must secure the approval o# the guardianship
court. & guardian is only authori6ed to manage the
estate o# the ward. & guardian has no power to dispose
o# any portion o# the estate without approval o# the court.
7# more than acts o# mere administration are involved,
)udicial approval is necessary.
Professor Ruben F. Balane Pa)e ++- of +,-
7n case o# sale, mortgage, or other encumbrance o# any
portion o# the estate which does not have )udicial
approval is an unen#orceable contract :&rticle 1$1 :1;;.
There#ore, &rticle 1D1 :1; is limited to contracts which
constitute mere acts o# administration :i.e. the purchase
o# e-uipment #or the cultivation o# lands, purchase o#
materials #or repair o# buildings, etc.;.
8esion is very di##icult to apply in practice.
For e'ample, & is the agent o# =. = owns land worth A11
B. & sells the land #or AC B. From the #acts, the lesion
su##ered by = is 1N. 7n practice, are you sure that A11
B is the #air mar+et value o# the land. "hat i# the
situation is urgent and that property must be disposed o#
right away(
&nother e'ample, & is the agent o# =. = owns land worth
A11 B. C wants to buy the land. C is willing to pay A C B
< lump sum payment. * is willing to pay A 11 B but on
installments.
ii. Those agreed upon in representation o# absentees, i# the
absentee su##ers lesion by more than _ o# the value o#
things which are the ob)ect thereo# :&rticle 1D1 :2;;
,escission shall not ta+e place with respect to contracts
approved by the court :&rticle 1D4;.
&s a rule, when the legal representative o# an absentee
enters into a contract involving the disposition o# the
absentees property, he must secure the approval o# the
court. & legal representative is only authori6ed to
manage the estate o# the absentee. >e has no power to
dispose o# any portion o# the estate without approval o#
the court. 7# more than acts o# mere administration are
involved, )udicial approval is necessary.
7n case o# sale, mortgage, or other encumbrance o# any
portion o# the estate which does not have )udicial
approval is an unen#orceable contract :&rticle 1$1 :1;;.
There#ore, &rticle 1D1 :2; is limited to contracts which
constitute mere acts o# administration :i.e. the purchase
o# e-uipment #or the cultivation o# lands, purchase o#
materials #or repair o# buildings, etc.;.
8esion is very di##icult to apply in practice.
For e'ample, & is the agent o# =. = owns land worth A11
B. & sells the land #or AC B. From the #acts, the lesion
su##ered by = is 1N. 7n practice, are you sure that A11
B is the #air mar+et value o# the land. "hat i# the
situation is urgent and that property must be disposed o#
right away(
&nother e'ample, & is the agent o# =. = owns land worth
A11 B. C wants to buy the land. C is willing to pay A C B
< lump sum payment. * is willing to pay A 11 B but on
installments.
Professor Ruben F. Balane Pa)e +/4 of +,-
iii. Those underta+en in #raud o# creditors when the creditors
cannot in any other manner collect the claims due them
:&rticle 1D1 :;;
This is an e'ception to the principle o# relativity o#
contracts.
Creditors, a#ter having pursued the property in
possession o# the debtor to satis#y their claims may
e'ercise all the rights and bring all the actions o# the
latter #or the same purpose, save those which are
inherent in his person% they may also impugn the acts
which the debtor may have done to de#raud them :&rticle
11CC;.
Creditors are protected in cases o# contracts intended to
de#raud them :&rticle 11;.
7n determining whether or not a certain conveyance is
#raudulent, the -uestion in every case is whether the
conveyance was a 5ona !ide transaction or tric+ and
contrivance to de#eat creditors, or whether it conserves
to the debtor a special right.
&ll contracts by virtue o# which the debtor alienates
property by gratuitous tile are presumed to have been
entered into in order to de#raud creditors, when the
donor did not reserve su##icient property to pay all debts
contracted be#ore the donation :&rticle 1DC, 1
st
?;.
&lienations by onerous title are also presumed #raudulent
when made by persons against whom some )udgment
has been rendered in any instance or some writ o#
attachment has been issued. The decision or attachment
need not re#er to the property alienated, and need not
have been obtained by the party see+ing the rescission
:&rticle 1DC, 2
nd
?;.
=adges o# Fraud
1. The #act that the consideration o# the conveyance is
inade-uate
2. & trans#er made by a debtor a#ter suit has begun and
while it is pending against him
. & sale upon credit by an insolvent debtor
$. /vidence o# large indebtedness or complete
insolvency
3. The trans#er o# all or nearly all o# his property by a
debtor, especially when he is insolvent or greatly
embarrassed #inancially
4. The #act that the trans#er is made between #ather and
son when there are present any o# the above
circumstances
C. The #ailure o# the vendee to ta+e e'clusive possession
o# all the property
iv. Those which re#er to things under litigation i# they have been
entered into by the de#endant without the +nowledge and
Professor Ruben F. Balane Pa)e +/* of +,-
approval o# the litigants or o# competent )udicial authority
:&rticle 1D1 :$;;
&rticle 1D1 :$; re#ers to a contract e'ecuted by the
de#endant in a suit involving the ownership or possession
o# a thing, when such contract is made without the
+nowledge and approval o# the plainti## or court.
&s in the case o# a contract in #raud o# creditors, the
remedy o# rescission in this case is given to a
rd
person
who is not a party to the contract. The purpose is to
protect the plainti##.
v. &ll other contracts specially declared by law to be the sub)ect
o# rescission :&rticle 1D1 :3;;
The #ollowing provision in sales are e'amples o#
rescissible contracts declared by law < &rts 1324, 13$,
13D, 13E, 13$1, 1334, 1341, 134C, 143E.
Aayments made in a state o# insolvency #or obligations to
whose #ul#illment the debtor could not be compelled at
the time they were e##ected :&rticle 1D2;
b. The person as+ing #or rescission must have no other legal means to
obtain reparation #or the damages su##ered by him :&rticle 1D;
c. The person demanding rescission must be able to return whatever
he may be obliged to restore i# rescission is granted :&rticle 1D3,
1
st
par;
This re-uisite is only applicable i# the one who su##ers the lesion
is a party to the contract.
This re-uisite does not apply when a de#rauded creditor resorts
to accion pauliana.
d. The things which are the ob)ect o# the contract must not have
passed legally to the possession o# a
rd
person acting in good #aith
:&rticle 1D3, 2
nd
?;
"hoever ac-uires in bad #aith the things alienated in #raud o#
creditors, shall indemni#y the latter #or damages su##ered by
them on account o# the alienation, whenever, due to any cause,
it should be impossible #or him to return them :&rticle 1DD,1
st
?;.
7# there are 2 or more alienations, the 1
st
ac-uirer shall be liable
1
st
, and so on successively :&rticle 1DD, 2
nd
?;.
e. The action #or rescission must be brought within the prescriptive
period o# $ years :&rticle 1DE;
2. =oidable Contracts
Art. 1390. The following contracts are voidable or
annullable% even though there ma" have been no damage to the
contracting parties+
5'6 Those where one of the parties is incapable of giving
consent to a contract3
546 Those where the consent is vitiated b" mistake% violence%
intimidation% undue influence or fraud.
Professor Ruben F. Balane Pa)e +/. of +,-
These contracts are binding% unless the" are annulled b" a
proper action in court. The" are susceptible of ratification.
Art. 1391. The action for annulment shall be brought within
four "ears.
This period shall begin+
,n cases of intimidation% violence or undue influence% from
the time the defect of the consent ceases.
,n case of mistake or fraud% from the time of the discover" of
the same.
And when the action refers to contracts entered into b"
minors or other incapacitated persons% from the time the
guardianship ceases.
Art. 1392. *atification e-tinguishes the action to annul a
voidable contract.
Art. 1393. *atification ma" be effected e-pressl" or tacitl".
,t is understood that there is a tacit ratification if% with knowledge
of the reason which renders the contract voidable and such reason
having ceased% the person who has a right to invoke it should
e-ecute an act which necessaril" implies an intention to waive his
right.
Art. 1394. *atification ma" be effected b" the guardian of
the incapacitated person.
Art. 1395. *atification does not re.uire the conformit" of the
contracting part" who has no right to bring the action for
annulment.
Art. 1396. *atification cleanses the contract from all its
defects from the moment it was constituted.
Art. 1397. The action for the annulment of contracts ma" be
instituted b" all who are thereb" obliged principall" or subsidiaril".
8owever% persons who are capable cannot allege the incapacit" of
those with whom the" contracted3 nor can those who e-erted
intimidation% violence% or undue influence% or emplo"ed fraud% or
caused mistake base their action upon these flaws of the contract.
Art. 1398. An obligation having been annulled% the
contracting parties shall restore to each other the things which
have been the subject matter of the contract% with their fruits% and
the price with its interest% e-cept in cases provided b" law.
,n obligations to render service% the value thereof shall be
the basis for damages.
Art. 1399. 0hen the defect of the contract consists in the
incapacit" of one of the parties% the incapacitated person is not
obliged to make an" restitution e-cept insofar as he has been
benefited b" the thing or price received b" him.
Professor Ruben F. Balane Pa)e +/+ of +,-
Art. 1400. 0henever the person obliged b" the decree of
annulment to return the thing can not do so because it has been
lost through his fault% he shall return the fruits received and the
value of the thing at the time of the loss% with interest from the
same date.
Art. 1401. The action for annulment of contracts shall be
e-tinguished when the thing which is the object thereof is lost
through the fraud or fault of the person who has a right to institute
the proceedings.
,f the right of action is based upon the incapacit" of an" one
of the contracting parties% the loss of the thing shall not be an
obstacle to the success of the action% unless said loss took place
through the fraud or fault of the plaintiff.
Art. 1402. As long as one of the contracting parties does not
restore what in virtue of the decree of annulment he is bound to
return% the other cannot be compelled to compl" with what is
incumbent upon him.
& voidable contract is a contract in which all o# the essential elements
#or validity are present, but the element o# consent is vitiated either by
lac+ # legal capacity o# 1 o# the contracting parties or by mista+e,
violence, intimidation, undue in#luence, or #raud.
Voidable contracts are binding unless they are annulled by a proper
action court. They are susceptible to con#irmation.
There is a di##erence between con#irmation and rati#ication.
Con#irmation is the process o# curing the de#ect o# a voidable
contract. ,ati#ication is the process o# curing contracts which are
de#ective because they were entered into without authority.
The #ollowing contracts are voidable or annullable, even though there
may have been no damage to the contracting parties
a. Those where one o# the parties is incapable o# giving consent to a
contract
The #ollowing cannot give consent to a contract :&rticle 12C;9
i. Enemancipated minors
"here necessaries are sold and delivered to a minor or
other person without capacity to act, he must pay a
reasonable price there#ore. Necessaries include
everything that is indispensable #or sustenance, dwelling,
clothing, and medical attendance.
Contracts e##ected by minors who have already passed
the age o# puberty and adolescence and are near the
adult age, when they pretend to have already reached
the age o# ma)ority, while in #act they have not, are
valid, and cannot be permitted a#terwards to e'cuse
themselves #rom compliance with obligations assumed by
them or see+ their annulment. This is in consonance with
the rules o# estoppel. (9ercado vs. Espiritu).
>owever in -raganza v De >illa, the .C said that the
misrepresentation o# an incapacitate person does not
Professor Ruben F. Balane Pa)e +// of +,-
estop him #rom denying that he was o# age, or #rom
asserting that he was under age, at the time he entered
into the contract. &ccording to Aro#essor =alane, this
view is very logical. 7# the minor is too young to enter
into contracts, he is too young to be estopped.
ii. Insane or demented persons and dea! mutes 4#o do not
6no4 #o4 to 4rite
Art. 1328. Contracts entered into during a lucid
interval are valid. Contracts agreed to in a state of
drunkenness or during a h"pnotic spell are voidable.
Art. 1329. The incapacit" declared in article
'74B is subject to the modifications determined b"
law% and is understood to be without prejudice to
special dis.ualifications established in the laws.
b. Those where the consent is vitiated by mista+e, violence,
intimidation, undue in#luence or #raud
Art. 1330. A contract where consent is given through
mistake% violence% intimidation% undue influence or fraud is
voidable.
i. Bista+e
Art. 1331. ,n order that mistake ma" invalidate
consent% it should refer to the substance of the thing
which is the object of the contract% or to those conditions
which have principall" moved one or both parties to enter
into the contract .
;istake as to the identit" or .ualification of one of
the parties will vitiate consent onl" when such identit" or
.ualifications have been the principal cause of the
contract.
A simple mistake of account shall give rise to its
correction.
Art. 1332. 0hen one of the parties is unable to
read% or if the contract is in a language not understood b"
him% and mistake or fraud is alleged% the person enforcing
the contract must show that the terms thereof have been
full" e-plained to the former.
Art. 1333. There is no mistake if the part" alleging
it knew the doubt% contingenc" or risk affecting the object
of the contract.
Art. 1334. ;utual error as to the legal effect of an
agreement when the real purpose of the parties is
frustrated% ma" vitiate consent.
Art. 1342. ;isrepresentation b" a third person
does not vitiate consent% unless such misrepresentation
has created substantial mistake and the same is mutual.
Art. 1343. ;isrepresentation made in good faith is
not fraudulent but ma" constitute error.
Professor Ruben F. Balane Pa)e +/, of +,-
ii. Violence
Art. 1335$ 1
st
%. There is violence when in order to
wrest consent% serious or irresistible force is emplo"ed.
Violence shall annul the obligation, although it may been
employed by a
rd
person who did not ta+e part in the
contract :&rticle 14;.
,e-uisites o# Violence
1. 7rresistible physical #orce is employed
2. The #orce is the determining cause #or giving consent
iii. 7ntimidation
Art. 1335$ 2
n+
%. There is intimidation when one of
the contracting parties is compelled b" a reasonable and
well/grounded fear of an imminent and grave evil upon
his person or propert"% or upon the person or propert" of
his spouse% descendants or ascendants% to give his
consent.
,e-uisites o# 7ntimidation
1. The threat must be the determining
cause #or giving consent
2. The threatened act is un)ust and
unlaw#ul
& threat to en#orce ones claim through competent
authority, i# the claim is )ust or legal, does not vitiate
consent :&rticle 13, $
th
?;.
The threat to en#orce a right, should not be aimed at
a result which is contrary to law or morals, or which is
un)ust and contrary to good #aith. &lthough it is
law#ul to e'ercise rights, it is not always law#ul to use
them #or purposes di##erent #rom those #or which they
were created. Thus, although it is law#ul to report
crimes, the threat to report it may be illicit i# the
purpose is not to cooperate in the discovery and
prosecution o# the crime, but to obtain some
prestation #rom the culprit which otherwise could not
be obtained and which does not constitute indemnity
#or damages #or the crime committed.
Thus, the rule is, generally, a threat to do something
law#ul does not constitute intimidation.
Example: 7# you dont marry my daughter, 7ll report
you to the 7=A. This is not unlaw#ul because the
person did commit immorality.
.ometimes, though, it may constitute intimidation.
Example: & saw = commit murder. & threatened =
that he will report him to the police unless = gives &
his house. This is intimidation because there is no
connection between the crime and the contract.
. The threat is real and serious
For e'ample the threat must be to +ill you or burn
your house and not merely to pinch you.
$. The threat produces a well2grounded
#ear that the person ma+ing it can and will in#lict harm
To determine the degree o# intimidation, the age, se',
and condition o# the person shall be borne in mind
:&rticle 13,
rd
?;.
For e'ample, a C3year old man who is bed ridden and
says that he will +ill you does not produce a well2
grounded #ear.
7ntimidation shall annul the obligation, although it
may have been employed by a
rd
person who did not
ta+e part in the contract :&rticle 14;.
iv. !ndue in#luence
Art. 1337. There is 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. The following circumstances shall be considered+
the confidentialit"% famil"% spiritual and other relations
between the parties% or the fact that the person alleged to
have been undul" influenced was suffering from mental
weakness% or was ignorant or in financial distress.
v. Fraud
Art. 1332. 0hen one of the parties is unable to
read% or if the contract is in a language not understood b"
him% and mistake or fraud is alleged% the person enforcing
the contract must show that the terms thereof have been
full" e-plained to the former.
Art. 1338. There is 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.
This is +nown as deceit or dolo causante. This is di##erent
#rom dolo incidente which means #raud on things which
would not prevent you #rom entering into a contract but may
hold the other liable #or damages.
,e-uisites o# Fraud
1. Fraud is employed by 1 party on the other :&rticles 1$2,
1$$;
2. The other party was induced to enter into the contract
:&rticle 1D;
. The #raud must be serious :&rticle 1$$;
$. There is damage or in)ury caused
Art. 1339. @ailure to disclose facts% when there is a
dut" to reveal them% as when the parties are bound b"
confidential relations% constitutes fraud.
Art. 1340. The usual e-aggerations in trade% when
the other part" had an opportunit" to know the facts% are
not in themselves fraudulent.
Art. 1341. A mere e-pression of an opinion does
not signif" fraud% unless made b" an e-pert and the other
part" has relied on the former(s special knowledge.
Art. 1342. ;isrepresentation b" a 7
rd
person does
not vitiate consent% unless such misrepresentation has
created substantial mistake and the same is mutual.
Art. 1343. ;isrepresentation made in good faith is
not fraudulent but ma" constitute error.
Art. 1344. ,n order that fraud ma" make a contract
voidable% it should be serious and should not have been
emplo"ed b" both contracting parties.
,ncidental fraud onl" obliges the person emplo"ing
it to pa" damages.
7# a
rd
person should commit violence or intimidation on 1 o#
the contracting parties and this vitiates the contracting
partys consent, then the contract may be annulled :&rticle
14;. =y analogy, i# a
rd
person should e'ert undue
in#luence on 1 o# the contracting parties and this vitiates the
consent o# the contracting party, then the contract may be
annulled. >owever, i# the
rd
party commits #raud, damages
is the only remedy unless the #raud committed by the
rd
person has created a mutual substantial mista+e :&rticle
1$2;.
,ules ,egarding Voidable Contracts
a. Voidable contracts are e##ective unless set aside :&rticle 1E1;.
b. The validity o# a voidable contract can only be assailed in a suit #or
that purpose :i.e. complaint or counterclaim;.
The action #or annulment o# contracts may be instituted by all
who are thereby obliged principally or subsidiarily. >owever,
persons who are capable cannot allege the incapacity o# those
with whom they contracted% nor can those who e'erted
intimidation, violence, or undue in#luence, or employed #raud, or
caused ,mista+e base their action upon these #laws o# the
contract :&rticle 1EC;.
The action #or annulment shall be brought within $ years. This
period shall begin
i. 7ntimidation < #rom the time the de#ect o# the consent ceases
ii. Violence < #rom the time the de#ect o# the consent ceases
iii. !ndue in#luence < #rom the time the de#ect o# the consent
ceases
iv. Bista+e < #rom the time o# the discovery o# the mista+e
v. Fraud < #rom the time o# the discovery o# the #raud
The $ year prescription period to annul contracts entered into
by minors or other incapacitated persons shall begin #rom the
time the guardianship ceases :&rticle 1E1, $
th
?;.
&n obligation having been annulled, the contracting parties shall
restore to each other the things which have been the sub)ect
matter o# the contract, with their #ruits, and the price with its
interest, e'cept in cases provided by law :&rticle 1ED, 1
st
?;.
7n obligations to render service, the value thereo# shall be
the basis #or damages :&rticle 1ED, 2
nd
?;.
"hen the de#ect o# the contract consists in the incapacity o#
1 o# the parties, the incapacitated person is not obliged to
ma+e any restitution e'cept inso#ar as he has been bene#ited
by the thing or price received by him :&rticle 1EE;.
"hat i# the Thing to =e ,eturned is 8ost
i. 8oss due to Fault o# *e#endant
*e#endant has to pay the plainti##
1. Value o# the thing loss
2. Fruits i# any
. 7nterest
ii. 8oss due to a Fortuitous /vent or due to a
rd
party
*e#endant has to pay the plainti##
1. Value o# the thing loss
2. Fruits i# any
iii. 8oss due to Fault or Fraud o# Alainti##
The plainti## loses the right to annul :&rticle 1$11;.
There is #ault on the part o# the plainti## once the
plainti## regains capacity.
iv. 8oss without Fault on the Alainti##s Aart
Commentators have a di##erence o# opinion
1. The right to annul is e'tinguished unless the
plainti## o##ers to pay the value o# the ob)ect at the
time o# loss
2. The plainti## is entitled to annul without having to
pay anything.
&s long as 1 o# the contracting parties does not restore what
in virtue o# the decree o# annulment he is bound to return,
the other cannot be compelled to comply with what is
incumbent upon him :&rticle 1$12;.
The action #or annulment will not prosper in the #ollowing9
i. 7# the contract has been con#irmed :&rticle 1E2;
Professor Ruben F. Balane Pa)e +/- of +,-
ii. 7# the action to annul has prescribed :&rticle 1E1;
iii. "hen the thing which is the ob)ect o# the contract is lost
through the #ault or #raud o# the person who has a right to
institute the proceedings :&rticle 1$11, 1
st
?;
iv. /stoppel
c. Voidable contracts can be con#irmed.
Con#irmation e'tinguishes the action to annul a voidable contract
:&rticle 1E2;.
Con#irmation is the proper term #or curing the de#ect o# a
voidable contract.
Con#irmation cleanses the contract #rom all its de#ects #rom the
moment it was constituted :&rticle 1E4;.
,e-uisites o# Con#irmation
1. That the contract is a voidable or annullable contract
2. That the rati#ication is made with +nowledge o# the cause #or
nullity
. That at the time the rati#ication is made, the cause o# nullity
has already ceased to e'ist
Con#irmation may be e##ected e'pressly or tacitly. 7t is
understood that there is tacit con#irmation i#, with +nowledge o#
the reason which renders the contract voidable and such reason
having ceased, the person who has a right to invo+e it should
e'ecute an act which necessarily implies an intention to waive
his right :&rticle 1E;.
d. Voidable contracts can be con#irmed only by the party whose
consent was vitiated
Con#irmation does not re-uire the con#ormity o# the contracting
party who has no right to bring the action #or annulment :&rticle
1E3;.
Con#irmation may be e##ected by the guardian o# the
incapacitated person :&rticle 1E$;.
. >nenforceable Contracts
Art. 1403. The following contracts are unenforceable% unless
the" are ratified+
5'6 Those entered into in the name of another person b" one
who has been given no authorit" or legal representation% or
who has acted be"ond his powers3
546 Those that do not compl" with the ?tatute of @rauds as set
forth in this number. ,n the following cases an agreement
hereafter made shall be unenforceable b" action% unless the
same% or some note or memorandum% thereof% be in writing%
and subscribed b" the part" charged% or b" his agent3
evidence% therefore% of the agreement cannot be received
without the writing% or a secondar" evidence of its
contents+
5a6 An agreement that b" its terms is not to be performed
within a "ear from the making thereof3
Professor Ruben F. Balane Pa)e +,4 of +,-
5b6 A special promise to answer for the debt% default% or
miscarriage of another3
5c6 An agreement made in consideration of marriage%
other than a mutual promise to marr"3
5d6 An agreement for the sale of goods% chattels or things
in action% at a price not less than five hundred pesos%
unless the bu"er accept and receive part of such goods
and chattels% or the evidences% or some of them% of
such things in action or pa" at the time some part of
the purchase mone"3 but when a sale is made b"
auction and entr" is made b" the auctioneer in his
sales book% at the time of the sale% of the amount and
kind of propert" sold% terms of sale% price% names of
the purchasers and person on whose account the sale
is made% it is a sufficient memorandum3
5e6 An agreement of the leasing for a longer period than
one "ear% or for the sale of real propert" or of an
interest therein3
5f6 A representation as to the credit of a third person.
576 Those where both parties are incapable of giving consent to
a contract.
Art. 1404. >nauthori$ed contracts are governed b" article
'7'B and the principles of agenc" in Title K of this Gook.
Art. 1405. Contracts infringing the ?tatute of @rauds%
referred to in 2o. 4 of article '<E7% are ratified b" the failure to
object to the presentation of oral evidence to prove the same% or b"
the acceptance of benefit under them.
Art. 1406. 0hen a contract is enforceable under the ?tatute
of @rauds% and a public document is necessar" for its registration in
the *egistr" of Deeds% the parties ma" avail themselves of the right
under Article '7)B.
Art. 1407. ,n a contract where both parties are incapable of
giving consent% e-press or implied ratification b" the parent% or
guardian% as the case ma" be% of one of the contracting parties shall
give the contract the same effect as if onl" one of them were
incapacitated.
,f ratification is made b" the parents or guardians% as the
case ma" be% of both contracting parties% the contract shall be
validated from the inception.
Art. 1408. >nenforceable contracts cannot be assailed b"
third persons.
&n unen#orceable contract is a contract which cannot be en#orced by a
proper action in court, unless they are rati#ied, because either they are
entered into without or in e'cess o# authority or they do not comply
with the .tatute o# Frauds or both the contracting parties do not
possess the re-uired legal capacity.
Professor Ruben F. Balane Pa)e +,* of +,-
The #ollowing contracts are unen#orceable unless they are rati#ied
:&rticle 1$1;
a. Those entered into in the name o# another person by 1 who has
been given no authority or legal representation, or who has acted
beyond his powers
Art. 1317. 2o one ma" contract in the name of
another without being authori$ed b" the latter% or unless he
has b" law a right to represent him.
A contract entered into in the name of another b" one
who has no authorit" or legal representation% or who has
acted be"ond his powers% shall be unenforceable% unless it is
ratified% e-pressl" or impliedl"% b" the person on whose
behalf it has been e-ecuted% before it is revoked b" the other
contracting part".
"hen a person enters into a contract #or and in the name o#
another, without authority to do so, the contract does not bind
the latter, unless he rati#ies the same.
The agent, who has entered into the contract in the name o# the
purported principal, but without authority #rom him, is liable to
rd
persons upon the contract.
The proper term #or this case is Orati#icationP.
Example: 7n a sale, H claimed that he was an agent o# T, even i#
not. The contract cannot be en#orced against T. &nother
e'ample is when the agent is authori6ed to lease the property
but the agent instead sells the property. The principal is not
bound.
b. Those that do not comply with the .tatute o# Frauds
This is the most #amous variety.
i. &n agreement that by its terms is not to be per#ormed within a
year #rom the ma+ing thereo#
7n -a5ao vs. Perez, the .upreme Court interpreted the
phrase Onot be to per#ormed within a yearP to mean that the
obligation cannot be #inished within 1 year. Aro#essor =alane
does not agree with this interpretation. &ccording to
Aro#essor =alane the phrase Onot to be per#ormed within a
yearP should mean that the obligation cannot begin within a
year. For practical reasons, the contract must be in writing
since the parties might #orget. This rule was made to guard
against #allibility :#orget#ulness; o# man and #raud.
&ccording to Aro#essor =alane, the .upreme Courts
interpretation is incorrect. 7# the obligation cannot be
#inished within 1 year, the contract is not within the .tatute
o# Frauds because o# partial per#ormance.
ii. & special promise to answer #or the debt, de#ault or miscarriage
o# another
The test as to whether a promise is within the statute has
been said to lie in the answer to the -uestion whether the
promise is an original or collateral one. 7# the promise is an
Professor Ruben F. Balane Pa)e +,. of +,-
original one or an independent one, that is, i# the promisor
becomes thereby primarily liable #or the payment o# the
debt, the promise is not within the statute.
7# the promise is collateral to the agreement o# another and
the promisor becomes merely a surety or guarantor, the
promise must be in writing.
iii. &n agreement made in consideration o# marriage, other than a
mutual promise to marry
& mutual promise to marry does not #all within the .tatute o#
Frauds since they are not made in writing.
&greements made in consideration o# marriage other than
the mutual promise to marry are within the .tatute o#
Frauds.
7n ;a5ague vs. Auxilio the #ather o# the groom promised to
improve his daughter2in2laws #athers house in
consideration o# the marriage. The #ather o# the groom
made improvements on the house. The wedding did not
ta+e place. The .upreme Court said that the #ather o# the
groom could not sue on the oral contract which as to him is
not Omutual promise to marryP. Aro#essor =alane disagrees
with the .upreme Court. &ccording to Aro#essor =alane, the
#ather o# the groom should be able to sue since there was
partial per#ormance.
iv. &n agreement #or the sale o# goods, chattels or things in action,
at a price not less than A311, unless the buyer accepts and
receives part o# such goods and chattels, or the evidence, or
some o# them, o# such things in action, or pay at the time some
part o# the purchase money% but when a sale is made by auction
and entry is made by the auctioneer in his sales boo+, at the
time o# sale, o# the amount and +ind o# property sold, terms o#
sale, price, names o# the purchasers and person on whose
account the sale is made, it is a su##icient memorandum
The re-uirement o# a written instrument or a memorandum
#or sales o# personal property #or a price not less than A311,
covers both tangible and intangible personal property. 7t
also covers the assignment o# choses in action.
"here a contract #or the sale o# goods at a price not less
than A311 is oral, and there is neither partial payment or
delivery, receipt, and acceptance o# the goods, the contract
is unen#orceable, and cannot be the basis o# an action #or the
recovery o# the purchase price, or as the basis o# an action
#or damages #or breach o# the agreement.
"here there is a purchase o# a number o# articles which
ta+en separately does not have a price o# A311 each, but
ta+en together, the price e'ceeds A311, the operation o# the
statute o# #rauds depends upon whether there is a single
inseparable contract or a several one. 7# the contract is
entire or inseparable, and the total price e'ceeds A311, the
statute applies. =ut i# the contract is separable, then each
article is ta+en separately.
Professor Ruben F. Balane Pa)e +,+ of +,-
v. &n agreement o# lease #or a period o# more than 1 year, or the
sale o# real property or o# an interest therein
&s long there is a sale o# real property, the sale must be in
writing. There is no minimum.
&n oral contract #or a supplemental lease o# real property #or
longer period than 1 year is within the .tatute o# Frauds.
&n agreement to enter into an agreement is also within the
.tatute o# Frauds.
vi. & representation as to the credit o# a
rd
person
& wants to borrow money #rom C. C does not +now &. C
goes to = to as+ about &s credit standing. = says that &s
credit standing is satis#actory even though = +nows that & is
insolvent. !nder &rticle 1$1, C can go a#ter = i# =s
representation was in writing.
Aro#essor =alane thin+s that this does not belong in the
.tatute o# Frauds. There is no contract between C and =. =
did not bind himsel# to pay C. "hat we have here is an
unen#orceable tort.
&ccording to Aro#essor =alane, Oa representation as to the
credit o# a
rd
personP should be replaced by &rticle 1$$.
&rticle 1$$ provides that no e'press trusts concerning an
immovable or any interest therein may be proved by parol
evidence.
"hen the e'press trust concerns an immovable or an
interest therein, a writing is necessary to prove it. This
writing is not re-uired #or the validity o# the trust. 7t is
re-uired only #or purposes o# proo#. "hen the property
sub)ect to the e'press trust, however is not real estate or an
interest therein, then it may be proved by any competent
evidence, including parol evidence.
c. Those where both parties are incapable o# giving consent to a
contract
Neither party or his representative can en#orce the contract
unless it has been previously rati#ied. The rati#ication by 1
party, however, converts the contract into a voidable contract <
voidable at the option o# the party who has not rati#ied% the
latter, there#ore, can en#orce the contract against the party who
has rati#ied. 0r, instead, o# en#orcing the contract, the party
who has not rati#ied it may as+ #or annulment on the ground o#
his incapacity.
The proper term is Oac+nowledgementP :and not rati#ication;.
2 Arinciples in the .tatute o# Frauds
a. Aarol evidence is not admissible. >owever, there are 2 ways o#
bringing it out.
2 "ays in "hich Aarol /vidence is &dmissible
i. Failure to ob)ect by the opposing lawyer when parol evidence
is used :&rticle 1$13;
7# there is no ob)ection, then parol evidence is admitted.
Professor Ruben F. Balane Pa)e +,/ of +,-
ii. &cceptance o# bene#its :&rticle 1$13;
7# there has been per#ormance on 1 side and the other
side accepts, then the .tatute o# Frauds is not applicable.
&lso, estoppel sets in so by accepting per#ormance, the
de#ect is waived.
b. The .tatute o# Frauds applies only to e'ecutory contracts and not to
those which have been e'ecuted in whole or in part.
O/'ecutedP here means there has been per#ormance in part and
acceptance by the other.
$. =oid Contracts
Art. 1409. The following contracts are ine-istent and void
from the beginning+
5'6 Those whose cause% object or purpose is contrar" to law%
morals% good customs% public order or public polic"3
546 Those which are absolutel" simulated or fictitious3
576 Those whose cause or object did not e-ist at the time of the
transaction3
5<6 Those whose object is outside the commerce of men3
5)6 Those which contemplate an impossible service3
5A6 Those where the intention of the parties relative to the
principal object of the contract cannot be ascertained3
5B6 Those e-pressl" prohibited or declared void b" law.
These contracts cannot be ratified. 2either can the right to
set up the defense of illegalit" be waived.
Art. 1410. The action or defense for the declaration of the
ine-istence of a contract does not prescribe.
& void contract is an absolute nullity and produces no e##ect, as i# it had
never been e'ecuted or entered into.
The #ollowing contracts are ine'istent and void #rom the beginning
:&rticle 1$1E;
a. Those whose cause, ob)ect or purpose is contrary to law, morals.
5ood customs, public order or public policy
b. Those which are absolutely simulated or #ictitious
c. Those whose cause or ob)ect did not e'ist at the time o# the
transaction
&ccording to Aro#essor =alane, &rticle 1$1E :; should not be
Odid not e'istP. ,ather, the correct phrase should be Ocould not
come into e'istenceP because there can be a contract over a
#uture thing.
/'amples o# Ocould not come into e'istenceP are tangerine #lying
elephants and cars running on urine.
d. Those whose ob)ect is outside the commerce o# men
e. Those which contemplate an impossible service
>ere, there is no ob)ect.
Professor Ruben F. Balane Pa)e +,, of +,-
#. Those where the intention o# the parties relative to the principal
ob)ect o# the contract cannot be ascertained
This is similar to being void #or vagueness under the
Constitutional law.
g. Those e'pressly prohibited or declared void by law
&n e'ample o# this is sale between husband and wi#e, sub)ect to
e'ceptions. The .upreme Court has held that contingent #ees o#
lawyers wherein the latter receive part o# the property sub)ect o#
litigation are valid, unless unconscionable in amount.
Characteristics o# Void Contracts
a. The contract produces no e##ect whatsoever either against or in
#avor o# anyone
b. & )udgment o# nullity would be merely declaratory. There is no
action #or annulment necessary as such is ipso "ure.
/ven when the contract is void or ine'istent, an action is
necessary to declare its ine'istence, when it has already been
#ul#illed. Nobody can ta+e the law into his own hands.
The intervention o# a competent court is necessary to declare
the absolute nullity o# the contract and to decree the restitution
o# what has been given under it.
The )udgment o# nullity will retroact to the very day when the
contract was entered into.
c. 7t cannot be con#irmed, rati#ied or cured.
d. 7# it has been per#ormed, the restoration o# what has been given is
in order, e'cept i# pari delicto will apply.
e. The right to set the contracts nullity cannot be waived
#. The action #or nullity is imprescriptible :&rticle 1$11;
&s between the parties to a contract, validity cannot be given to
it by estoppel i# it is prohibited by law or is against public policy.
g. &ny person can invo+e the contracts nullity i# its )uridical e##ects are
#elt as to him
The de#ense o# illegality o# contracts is not available to
rd
persons whose interests are not directly a##ected :&rticle 1$21;.
Pari Delicto :in e-ual guilt;
Art. 1411. 0hen the nullit" proceeds from the illegalit" of
the cause or object of the contract% and the act constitutes a
criminal offense% both parties being in pari +elicto% the" shall
have no action against each other% and both shall be prosecuted.
;oreover% the provisions of the Penal Code relative to the
disposal of effects or instruments of a crime shall be applicable
to the things or the price of the contract.
This rule shall be applicable when onl" one of the parties
is guilt"3 but the innocent one ma" claim what he has given% and
shall not be bound to compl" with his promise.
Art. 1412. ,f the act in which the unlawful or forbidden
cause consists does not constitute a criminal offense% the
following rules shall be observed+
5'6 0hen the fault is on the part of both contracting parties%
neither ma" recover what he has given b" virtue of the
contract% or demand the performance of the other:s
undertaking3
546 0hen onl" one of the contracting parties is at fault% he
cannot recover what he has given b" reason of the
contract% or ask for the fulfillment of what has been
promised him. The other% who is not at fault% ma"
demand the return of what he has given without an"
obligation to compl" his promise.
&rticles 1$11 and 1$12 re#er to the pari delicto rule, which literally
means Oin e-ual +indP, or also Oin e-ual guiltP < in pari delicto oritur
actio and sometimes Oin e-ual guilt, the position o# the de#endant is
strongerP < in pari delicto potior est condicio de!endentis. The position
o# the de#endant is stronger because the plainti##s claim is not really
granted.
The pari delicto rule applies only to contracts which is void #or illegality
o# sub)ect matter. Thus, i# the contract is void #or simulation, the pari
delicto rule does not apply so a party can claim the ob)ect bac+ through
reconveyance.
0utline9
a. 7# it constitutes a criminal o##ense
i. 7# both parties are in pari delicto
No action #or speci#ic per#ormance can prosper on either side
:&rticle 1$11, 1
st
?;.
No action #or restitution can prosper on either side :&rticle
1$11, 1
st
?;.
Example: & shabu supplier supplies shabu to the shabu
dealer. 7# the shabu supplier does not deliver the shabu, the
dealer cannot #ile an action #or speci#ic per#ormance.
ii. 7# only 1 party is guilty
No action #or speci#ic per#ormance can prosper on either side.
&n action #or restitution will be allowed only i# the innocent
party demands. The guilty party is not entitled to restitution.
b. 7# it does not constitute a criminal o##ense
i. 7# both parties are in pari delicto
No action #or speci#ic per#ormance can prosper on either side
:&rticle 1$11, 1
st
?;.
No action #or restitution can prosper on either side :&rticle
1$11, 1
st
?;.
ii. 7# only 1 party is guilty
No action #or speci#ic per#ormance can prosper on either side.
&n action #or restitution will be allowed only i# the innocent
party demands.
/'ceptions to Pari Delicto
a. 7nterest paid in e'cess o# the interest allowed by the usury laws may
be recovered by the debtor, with interest there#rom #rom the date o#
payment :&rticle 1$1;
b. "hen money is paid or property delivered #or an illegal purpose, the
contract may be repudiated by 1 o# the parties be#ore the purpose
has been accomplished, or be#ore any damage has been caused to a
rd
person. 7n such case, the courts may, i# the public interest will
thus be subserved, allow the party repudiating the contract to
recover the money or property :&rticle 1$1$;.
c. "here 1 o# the parties to an illegal contract is incapable o# giving
consent, the courts, may, i# the interest o# )ustice so demands,
allow recovery o# money or property delivered by the incapacitated
person :&rticle 1$13;.
d. "hen the agreement is not illegal per se but is merely prohibited,
and the prohibition by law is designed #or the protection o# the
plainti##, he may, i# public policy is enhanced, recover what he has
paid or delivered :&rticle 1$14;.
e. "hen the price o# any article or commodity is determined by
statute, or by authority o# law, any person paying any amount in
e'cess o# the ma'imum price allowed may recover such e'cess
:&rticle 1$1C;.
#. "hen the law #i'es, or authori6es the #i'ing o# the ma'imum
number o# hours o# labor, and a contract is entered into whereby a
laborer underta+es to wor+ longer than the ma'imum thus #i'ed, he
may demand additional compensation #or service rendered beyond
the time limit :&rticle 1$1D;.
g. "hen the law sets or authori6es the setting o# a minimum wage #or
laborers, and a contract is agreed upon by which a laborer accepts a
lower wage, he shall be entitled to recover the de#iciency :&rticle
1$1E;.
The above contracts are void but there is some remedy #or policy
considerations. &n e'ample is the minimum wage law under &rticle
1$1E wherein the employer and the employee #reely agree to the
terms o# employment below the minimum wage. &lthough they are
in pari delicto, you dont #ollow the rules o# pari delicto. There is a
policy consideration o# social )ustice involved. This is similar to the
pre#erential option #or the poor o# churches.
Final Arovisions
Art. 1420. ,n case of a divisible contract% if the illegal
terms can be separated from the legal ones% the latter ma" be
enforced.
Art. 1421. The defense of illegalit" of contract is not
available to third persons whose interests are not directl"
affected.
Art. 1422. A contract which is the direct result of a
previous illegal contract% is also void and ine-istent.
Professor Ruben F. Balane Pa)e +,- of +,-
Dear ?ello4 -ar Examinees
IAm sorr8 t#e editing o! t#is Lrevie4erM too6 longer t#an I expected.
I #ope t#is Lrevie4erM 4ould #elp 8ou ma6e sense o! t#e rat#er con!using 4orld
o! civil la4.
7#e notes #ere are !rom Pro!essor Ru5en ?. -alaneAs lectures in #is EP ;ivil
La4 Revie4 class (IAm not sure !rom 4#at 8ear) I "ust added t#e codal provisions and
re!ormatted t#e notes !or easier reading. I also included parts o! t#e .5ligations and
;ontracts Revie4er made 58 *A ;lass %000 and m8 notes in ;ivil La4 Revie4 % on
.5ligations and ;ontracts (also under Pro!essor -alane) last semester (%00)B%00%).
I! 8ou !ind t#is #elp!ul please s#are 4it# anot#er examinee.
I! 8ou see an8 mista6e please s#are 4it# me. 7#an6s.
:od 5less and good luc6 to all o! us.
Dot
Ateneo La4 %00%
T7an@ 9ou to Professor Ruben F. Balane

Balane Civil Law Reviewer

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Lecture Notes on Civil Law

Professor Ruben F. Balane

% #orm o# donations < &rticle C$E

until he reaches the age o# 21.

o# the Family Code.

:The *omestic &doption &ct;.

of this Code% or where both of the parties re.uest the

and 1$4 :?2;

, i# the community property

Art. 1*/. The donation o# a movable may be made orally or in writing.

o# the Family Code.

is wrong. The sub)ect

#or purposes o# prescription, )ust title is not

LAN# "NER IS B(IL#ER>PLANTER>S"ER "NER "F $ATERIAL

o# the "ater Code de#ines what is navigable.

governs in this case.

o# the "ater Code are the repealing clauses

, the periods o# 2 :#or bees; and 21 days :#or

;. 0n the other hand, a domestic animal is treated li+e any other

provides the procedure when one #inds a lost movable which is

Art. )(/). The #ollowing contracts are rescissible9

. Fraud under &rticle 1D is more properly called

but is called loss there, a cause

;, and the vendor2a2

, rescissible contracts. ,esolution is

LECT(RE N"TES "N CI!IL LA

provides the instances when demand is not

Art. )(*/. 7mpossible things or services cannot be the ob)ect o# contracts.

Art. 1*/. The donation o# a movable may be made orally or in writing.

are e'amples o# when

;, the principal against the subagent :&rticle 1DE

Now, ,ule 11, JJ1121E.

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