2009 Civil Law Volume 2 Reviewer

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Copyright and all other relevant rights over this material are owned jointly by the University of the Philippines College of Law, the Faculty Editor and the Student Editorial Team. The ownership of the work belongs to the University of the Philippines College of Law. No part of this book shall be reproduced or distributed without the consent of the UP College of Law. All rights are reserved.
REVIEWER IN CIVIL LAW
Table of Contents
PROPERTY
CHAPTER I: PROPERTY A. General Concepts B. Classification CHAPTER II: REAL AND PERSONAL RIGHTS A. Definition, Distinctions CHAPTER III: OWNERSHIP A. Definition B. Characteristics C. Subject matter of ownership D. Bundle of Rights E. Other specific rights given to owner in the civil code F. Available actions to recover possession or Ownership G. Limitations CHAPTER IV: CO-OWNERSHIP A. Definition B. Characteristics C. Subject matter of co-ownership D. Contrasted with Joint tenancy E. Compared with Partnership F. Legal effects G. Bundle of rights H. Sources I. Rights and Obligations J. Condominium Law K. Extinguishment CHAPTER V: POSSESSION A. Definition B. Requisites C. Degrees of holding or possession D. Cases of possession E. What things or rights may be possessed? F. What things or rights may not be possessed? G. Acquisition H. Effects I. Presumptions in favor of possessor J. Loss CHAPTER VI: QUIETING OF TITLE CHAPTER VII: USUFRUCT A. Definition B. Characteristics C. Classification, D. Bundle of Rights E. Rights of the Usufructuary and Naked owner F. Obligations of Usufructuary E. Special Cases F. Extinguishment 3 3 3 6 6 8 8 8 8 9 9 10 11 12 12 12 12 12 13 13 13 14 17 24 28 29 29 29 29 30 30 30 30 32 35 36 37 39 39 39 40 41 41 43 45 47 CHAPTER VIII: ACCESSION A. Definition, Distinctions, B. General Principles C. Classification of accession D. Builder, Planter, Sower CHAPTER IX: EASEMENTS A. Definition B. Essential Features C. Characteristics and Classification D. Acquisition E. Rights and Obligations F. Extinguishment G. Legal Easements CHAPTER X: MODES OF ACQUIRING OWNERSHIP A. Mode and title differentiated B. Modes of acquiring ownership C. Kinds of tradition D. Occupation E. Intellectual creation CHAPTER XI: DONATION A. Definition B. Requisites C. Classification D. Characteristics of a Donation Mortis Causa E. Who may be Donors and Donees F. Acceptance and Form of Donation G. Effects, H. Revocation and Reduction CHAPTER XII: NUISANCE A. Definition B. Classification C. Remedies D. Liability for Damages CHAPTER XIII: LEASE A. Characteristics B. Classification C. Lease of Things APPENDIX: Digests A. Depra v. Dumlao 136 SCRA 475 B. Technogas Phils. Manufacturing Corp. v. CA 286 SCRA C. Ignacio v. Hilario 76 Phil. 605 D. Pecson v. CA 244 SCRA 407 E. Coleongco v. Regalado 92 Phil. 87 F. Sarmiento v. Agana 129 SCRA 122 G. Geminiano v. CA 259 SCRA 344 H. Pleasantville Devt Corp. v. CA 253 SCRA 10 49 49 49 50 50 55 55 55 56 57 58 59 60 68 68 68 69 69 70 71 71 71 71 72 72 73 74 76 78 78 78 79 80 81 81 81 81 88
Table of Contents
LAND TITLES & DEEDS

CHAPTER I: BACKGROUND, BASIC CONCEPTS AND GENERAL PRINCIPLES I. Definitions of the Basic Concepts II. Nature of Land Registration III. Purpose of Registration IV. Modes of Acquiring Land Titles V. Jurisdiction CHAPTER 2: TORRENS CERTIFICATE OF TITLE I. Original Certificate of Title II. Transfer Certificate of Title III. Patents CHAPTER 3: ORIGINAL REGISTRATION I. Laws Governing Land Registration II. Effect of Registration III. Original Registration Proceedings IV. Attributes of and Limitations on Certificates of Title and Registration V. Judicial Confirmation of Imperfect or Incomplete Titles CHAPTER 4: CADASTRAL REGISTRATION PROCEEDINGS I. Steps in Cadastral Registration Proceedings CHAPTER 5: SUBSEQUENT REGISTRATION I. Two Types of Dealings II. The Necessity and Effects of Registration III. Voluntary vs. Involuntary Dealings IV. Registration of Voluntary Instruments in General V. Registration of Deeds of Sale and Transfers VI. Mortgages and Leases VII.Powers of Attorney, Trusts VIII. Involuntary Dealings CHAPTER 6: SYSTEM OF REGISTRATION OF UNREGISTERED LANDS I. Key Points in the Registration of Unregistered Lands II. Procedure in the Registration of Unregistered Lands CHAPTER 7: REGISTRATION OF PUBLIC LANDS I. Classification of Land of the Public Domain II. Nature of Public Lands III. Procedure IV. Role of Director of Lands V. Modes of Alienating Public Lands VI. Patents CHAPTER 8: REMEDIES OF THE AGGRIEVED PARTY CHAPTER 9: RECONSTITUTION 0F TITLES I. Grounds II. Petitions For Reconstitution III. Duties of the Land Registration IV. Authority V. Effects of Fraud in the Reconstitution 116 116 116 116 117 117 117 118 120 120 120 120 120 120
92 92 92 93 93 93 94 94 94 94 95 95 95 95 101 103 104 105 106 106 106 107 107 108 110 110 111
115 115 115
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Table of Contents
TORTS & DAMAGES

Chapter I. Introduction, Definitions A. Tort and Quasi-Delict B. Damages Chapter II. Concept of Quasi-Delict A. Elements B. Distinguished Chapter III. Negligence A. Concept of Negligence 1. Definition; Elements 2. Standard of Conduct B. Degrees of Negligence C. Proof of Negligence 1. Burden of Proof 2. Presumptions 3. Res Ipsa Loquitur D. Defenses 1. Plaintiff's Negligence 2. Contributory Negligence 3. Fortuitous Event 4. Assumption of Risk 5. Due Diligence 6. Prescription 7. Double Recovery Chapter IV. Causation A. Proximate Cause 1. Definition 2. Distinguished from Other Kinds 3. Tests to Determine the Proximate Cause 4. Efficient Intervening Cause 5. Last Clear Chance Chapter V. Strict Liability A. Possessor of Animals B. Things Thrown or Falling from a Building C. Death/Injuries in the Course of Employment D. Product Liability E. Inference with Contractual Relations F. Liability of Local Government Units Chapter VI. Persons Liable A. The Tortfeasor B. Vicarious Liability 1. Parents 2. Guardians 3. Teachers and Heads Institutions 4. Owners and Managers Establishments 5. Employers 6. State 123 123 123 124 124 124 126 126 126 126 127 127 127 127 128 128 128 128 128 129 129 129 129 130 130 130 130 130 131 131 132 132 132 132 132 133 133 136 136 136 136 137 of 138 of 138 138 138 Chapter VII. Torts with Independent Civil Action A. Violation of Civil and Political Rights B. Defamation, Fraud, Physical Injuries 1. Defamation 2. Fraud 3. Physical Injuries C. Neglect of Duty D. Action for damages Where No Independent Civil Action is Provided Chapter VIII. Intentional Torts A. Abuse of Rights B. Acts Contra Bonus Mores 1. Elements 2. Examples Other Torts C. Dereliction of Duty D. Unfair Competition E. Violation of Human Dignity Chapter IX. Damages A. Definition and Concept B. Kinds of Damages 1. Actual/Compensatory Damages 2. Moral Damages 3. Nominal Damages 4. Temperate/Moderate Damages 5. Liquidated Damages 6. Exemplary/Corrective Damages 140 140 140 141 141 141 142 142 143 143 143 143 143 144 144 144 145 145 145 145 149 153 154 154 154
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Table of Contents
PERSONS & FAMILY RELATIONS

CHAPTER 1: CIVIL PERSONALITY I. Concept and Classes of Persons A. Natural Persons B. Juridical Persons II. Capacity to Act and Restrictions Thereon A. Presumption of Capacity B. Restrictions 1. Minority 2. Insanity 3. Being Deaf-Mute 4. Prodigality 5. Civil Interdiction 6. Family Relations 7. Absence CHAPTER 2: CITIZENSHIP DOMICILE I. Who are Filipino Citizens II. Domicile A. Requisites of Domicile B. Kinds of Domicile AND 164 164 164 164 164 165 165 165 165 166 167 168 169 169 172 172 174 174 174 177 177 177 177 178 179 179 179 159 159 159 160 161 161 161 161 161 162 162 162 162 162 CHAPTER 6: LEGAL SEPARATION, DIVORCE and DE FACTO SEPARATION I. Grounds for Legal Separation II. Defenses III. When to file/try actions A. Prescription B. Reconciliation Period C. Attempts on Reconciliation D. Confession E. Collusion IV. Effects of filing petition for legal separation V. Effects of Decree for Legal Separation VI. Reconciliation A. How done B. Effects of Reconciliation VII. Divorce VIII. De Facto Separation CHAPTER 7: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND & WIFE I. Obligation of Spouses II. Rights of Spouses III. Use of Surname
180 180 180 181 181 181 181 181 181 181 181 182 182 182 182 183
CHAPTER 3: MARRIAGE I. Definition and Nature of Marriage II. Requisites of Marriage A. Essential Requisites B. Formal Requisites III. Marriages Solemnized Abroad IV. Presumption of Marriage CHAPTER 4: VOID MARRIAGES I. Grounds II. Period to File Action or Raise Defense III. Effects of Nullity CHAPTER 5: VOIDABLE MARRIAGES I. Grounds for Annulment A. Explanation B. Who may file, prescription, ratification II. When one spouse is absent A. Requirements for subsequent marriage to be valid when prior spouse is absent B. Effect of reappearance of absent spouse III. Effects of Pending Action/Decree IV. Voidable vs. Void V. Voidable vs. Legal Separation VI. Jurisdiction
184 184 184 184
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Table of Contents
CHAPTER 8: PROPERTY RELATIONS BETWEEN SPOUSES I. General Provisions II. Donations by Reason of Marriage III. ACP A. In General B. What constitutes Community Property C. Charges upon the ACP D. Administration, Ownership and Disposition of the ACP E. Dissolution of the ACP F. Liquidation of Assets and Liabilities IV. CPG A. Where it applies B. Husband and wife place in common fund C. Exclusive properties of the spouses D. What Constitutes the CPG E. Rules F. Charges upon CPG G. Administration of the CPG H. Dissolution of the CPG I. Liquidation of Assets and Liabilities V. Separation of Properties during Marriage VI. Property Regime of Unions without Marriage CHAPTER 9: THE FAMILY AND FAMILY HOME I. Family A. Family Relations B. General Rule C. Exceptions II. Family Home A. General Rule B. Exceptions C. Beneficiaries of the family home D. Requisites for creditor to avail of the right under article 160 CHAPTER 10: PATERNITY AND FILIATION I. Kinds of Filiation II. Impugning Legitimacy III. Proof of Filiation IV. Legitimation V. Rights of Legitimate or Illegitimate Children
185 185 186 187 187 187 188 188 189 189 190 191 191 191 191 192 193 193 194 194 195 196
CHAPTER 11: ADOPTION I. R.A. 8552 A. Who may adopt B. Who may be adopted II. Adoption procedure under RA 8552 IRR A. Pre-Adoption Services B. Effects of Adoption C. Rescission of Adoption D. Effects of Rescission E. Rectification of Simulated Births III. R.A. 8043: Inter-Country Adoption Act of 1995 A. Who may adopt B. Who may be adopted C. Where to file application D. Documents to support application E. Inter-country Adoption Board F. Trial Custody CHAPTER 12. SUPPORT I. General Provisions A. Kinds B. Characteristics C. How support is given II. Who are obliged to Support each other III. Order of Support A. If there are two or more to give support B. If there are multiple recipients CHAPTER 13. PARENTAL AUTHORITY I. Parental Authority General Provisions A. Custody B. Other Rights and Duties in Exercise of Parental Authority II. Substitute and Special Parental Authority III. Suspension or Termination of Parental Authority IV. Rights and Duties of Children CHAPTER 14. FUNERALS
204 204 204 205 205 205 205 206 206 206 207 207 207 207 208 208 208 209 209 209 209 209 209 209 209 210 211 211 211 211 212 212 213 214
198 198 198 198 198 198 198 198 198 199
200 200 200 201 202 203
Table of Contents
SUCCESSION
Chapter I. Concept of Succession I. Definition of Succession II. Opening of Succession III. Kinds of Succession IV. Kinds of Heirs Chapter II. Testamentary Succession I. Concept of Testamentary Succession II. Testamentary Capacity III. Formalities of Wills IV. Qualifications of Witnesses to a Notarial Will V. Amending a Will VI. Institution of Heirs VII.Applicable Principles of Private International Law VIII. Codicils and Incorporation by Reference IX. Revocation of wills and testamentary disposition X. Allowance and Disallowance of wills XI. Substitution of Heirs XII.Legitimes XIII. Preterition XIV. Reserva Troncal XV.Disinheritance XVI. Legacies and Devices Chapter III. Legal or Intestate Succession I. Causes for Legal or Intestate Succession II. The Intestate or Legal Heirs III. Fundamental Underlying Principles in Legal or Intestate Succession IV. Relationship V. The right of Representation VI. Order of Legal or Intestate Succession VII.Concurrence in Legal or Intestate Succession VIII. Outline of Intestate Shares IX. Order of Concurrence in the case of an Adopted Child Chapter IV. Provisions Common to Testamentary and Intestate Successions I. Accretion II. Capacity to Succeed III. Acceptance or Repudiation of Inheritance IV. Collation 217 217 217 217 217 218 218 218 218 220 220 220 221 222 222 222 223 224 226 226 227 228 231 231 231 231 232 232 234 234 234 235 Chapter VI. Application of the Important Concepts Through Sample Computational Problems 242 Chapter V. Partition and Distribution of Estate I. The Concept of Partition II. The Effects of Partition III. Nullification of Partition IV. Important Periods in Partition 239 239 240 240 241
236 236 236 237 238
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Table of Contents
PRIVATE INTERNATIONAL LAW

CHAPTER I. JURISDICTION I. Bases of Jurisdiction II. Exercise of Jurisdiction III. Ways of Dealing with Jurisdiction in a Conflicts Problem CHAPTER II. CHOICE OF LAW I. Approaches to Choice of Law A. Traditional Approaches B. Modern Approaches CHAPTER III. CHARACTERIZATION I. Types of Characterization II. Depecage CHAPTER IV. RENVOI I. Definition II. Ways of Dealing with Renvoi CHAPTER V. NOTICE AND PROOF OF FOREIGN LAW I. Proof of Foreign Law II. Exceptions to the Application of Foreign Law CHOICE OF LAW PROBLEMS (Chapters VI to XII) CHAPTER VI: NATIONALITY I. Nationality A. Determination of Nationality B. Procedure for Naturalization C. Loss of Philippine Citizenship D. Problems in applying the Nationality Principle CHAPTER VII: DOMICILE I. Domicile II. Comparative Merits and Demerits of Domicile and Nationality CHAPTER VIII: PRINCIPLES ON PERSONAL STATUS AND CAPACITY I. Definition II. Beginning and End of Personality III. Absence IV. Name V. Age of Majority VI. Capacity CHAPTER IX. FAMILY RELATIONS I. Marriage II. Divorce and Separation III. Annulment and Declaration of Nullity IV. Parental Relations V. Adoption 249 249 249 250 251 251 251 251 253 253 253 254 254 254 255 255 255 256272 256 256 256 257 258 258 260 260 261 262 262 262 262 263 263 263 264 264 265 266 266 266 CHAPTER X. PROPERTY I. Controlling Law II. Capacity to Transfer or Acquire Property III. Extrinsic and Intrinsic Validity IV. Exceptions to Lex Situs Rule V. Situs of Certain Properties VI. Patents, Trademarks, Trade Name and Copyright CHAPTER XI. CONTRACTS I. Contracts Involving a Foreign Element II. Extrinsic Validity of Contracts III. Intrinsic Validity IV. Capacity to Enter Contracts V. Choice of Law Issues in Conflicts Contracts Cases VI. Limitations to Choice of Law VII. Applicable Law in the Absence of Effective Choice CHAPTER XII. SUCCESSION I. Extrinsic Validity II. Intrinsic Validity III. Interpretation of Wills IV. Revocation V. Probate VI. Administration of Estates VII. Trusts CHAPTER XIII. TORTS AND CRIMES I. Torts A. Traditional Approach B. Modern Approach C. Foreign Tort Claims II. Crimes CHAPTER XIV. CORPORATIONS AND OTHER JURIDICAL ENTITIES I. Personal Law of Corporations II. Exception to the Rule of Incorporation Test III. Domicile/Residence of Corporations IV. Jurisdiction of Foreign Corporations V. Right of Foreign Corporations to Bring Suit CHAPTER XV. FOREIGN JUDGMENTS I. Recognition vs. Enforcement II. Bases of Recognition and Enforcement III. Policies Underlying IV. Requisites V. Procedure for Enforcement VI. Effects of Foreign Judgments 268 268 268 268 268 268 269 270 270 270 270 270 270 271 271 272 272 272 272 272 272 272 272 273 273 273 273 273 273 274 274 274 274 274 274 275 275 275 275 275 276 276
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Table of Contents
PROPERTY
CHAPTER I: PROPERTY A. General Concepts B. Classification CHAPTER II: REAL AND PERSONAL RIGHTS A. Definition, Distinctions CHAPTER III: OWNERSHIP A. Definition B. Characteristics C. Subject matter of ownership D. Bundle of Rights E. Other specific rights given to owner in the civil code F. Available actions to recover possession or Ownership G. Limitations CHAPTER IV: CO-OWNERSHIP A. Definition B. Characteristics C. Subject matter of co-ownership D. Contrasted with Joint tenancy E. Compared with Partnership F. Legal effects G. Bundle of rights H. Sources I. Rights and Obligations J. Condominium Law K. Extinguishment CHAPTER V: POSSESSION A. Definition B. Requisites C. Degrees of holding or possession D. Cases of possession E. What things or rights may be possessed? F. What things or rights may not be possessed? G. Acquisition H. Effects I. Presumptions in favor of possessor J. Loss CHAPTER VI: QUIETING OF TITLE CHAPTER VII: USUFRUCT A. Definition B. Characteristics C. Classification, D. Bundle of Rights E. Rights of the Usufructuary and Naked owner F. Obligations of Usufructuary E. Special Cases F. Extinguishment CHAPTER VIII: ACCESSION A. Definition, Distinctions, B. General Principles C. Classification of accession D. Builder, Planter, Sower CHAPTER IX: EASEMENTS A. Definition B. Essential Features C. Characteristics and Classification D. Acquisition E. Rights and Obligations F. Extinguishment 3 3 3 6 6 8 8 8 8 9 9 10 11 12 12 12 12 12 13 13 13 14 17 24 28 29 29 29 29 30 30 30 30 32 35 36 37 39 39 39 40 41 41 43 45 47 49 49 49 50 50 55 55 55 56 57 58 59 G. Legal Easements CHAPTER X: MODES OF ACQUIRING OWNERSHIP A. Mode and title differentiated B. Modes of acquiring ownership C. Kinds of tradition D. Occupation E. Intellectual creation CHAPTER XI: DONATION A. Definition B. Requisites C. Classification D. Characteristics of a Donation Mortis Causa E. Who may be Donors and Donees F. Acceptance and Form of Donation G. Effects, H. Revocation and Reduction CHAPTER XII: NUISANCE A. Definition B. Classification C. Remedies D. Liability for Damages CHAPTER XIII: LEASE A. Characteristics B. Classification C. Lease of Things APPENDIX: Digests A. Depra v. Dumlao 136 SCRA 475 B. Technogas Phils. Manufacturing Corp. v. CA 286 SCRA C. Ignacio v. Hilario 76 Phil. 605 D. Pecson v. CA 244 SCRA 407 E. Coleongco v. Regalado 92 Phil. 87 F. Sarmiento v. Agana 129 SCRA 122 G. Geminiano v. CA 259 SCRA 344 H. Pleasantville Devt Corp. v. CA 253 SCRA 10 60 68
PROPERTY
68 68 69 69 70 71 71 71 71 72 72 73 74 76 78 78 78 79 80 81 81 81 81 88
Reproduced with the permission of Prof. Eduardo A. Labitag of the UP College of Law. Ryan Oliva, Jon Edmarc Castillo and Jericho Del Puerto of the UP Law Center assisted in the preparation of these diagrams. FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE
ACADEMICS COMMITTEE Samantha Poblacion DIRECTOR FOR ACADEMICS EDITOR-IN-CHIEF Rania Joya DEPUTY DIRECTOR FOR ACADEMICS LAYOUT HEAD CIVIL LAW Cez Villavert Michelle Dy SUBJECT EDITORS -------Leo Zulueta LOGO, COVER AND TEMPLATE DESIGN LECTURES Edel Cruz HEAD -------Kae Guerrero PRINTING AND DISTRIBUTION
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Appendix
DIGESTS
DEPRA V DUMLAO G.R. NO. L-57348, 16 MAY 1985 Nature: Appeal form the Order of the former CFI of Iloilo to the then CA. Facts: Dumlao contructed his house on his lot and his kitchen encroached an area 34 sq. m. of Depras property. Depra fled an action for Unlawful Detainer against Dumlao. The Municipal Court found Dumlao to be a builder in good faith. Applying Article 448 of the New Civil Code, the Municipal Court ordered a forced lease between the parties. Depra refused to receive rental payments. Depra filed a complaint for Quieting of Title against Dumlao before the CFI of Iloilo. The suit was barred by res judicata by virtue of the Municipal Courts decision. Depra claims that the decision of the Municipal Court was null and void ab initio because its jurisdiction if limited to the sole issue of possession, whereas decision affecting lease, which is an encumbrance on real property, may only be rendered by CFI. Issue/s: faith. WON Dumlao is a builder in good
was acquired until the contrary is proved.1 Hence, such presumption passed on to Technogas. A builder in good faith could invoke the provisions of Art 4482 of the Civil Code. Under this provision, the builder could compel the landowner to make a choice between (1) appropriating the building by paying the indemnity required by law or (2) selling the land to the builder. Technogas can invoke the benefit provided by Art 448 despite the fact that it is not the builder of the encroaching structures. Contrary proof has not overthrown the presumption of good faith under Art 527. Upon learning of the said encroachment, Technogas immediately offered to buy the land encroached on by the structures. Technogas is deemed to have stepped in the shoes of Pariz Industries in regard to all rights of ownership over the immovable sold, including the right to compel the private respondent to exercise either of the two options provided under Art 448 of the Civil Code. Uys insistence on the removal of the encroaching structures as the proper remedy is an improper remedy being one that is not bestowed upon him by the law. IGNACIO V. HILARIO G.R. NO. L-175| APRIL 30, 1946 Doctrine: The owner of the building erected in good faith on a land owned by another is entitled to retain the possession of the land until he is paid the value of his building. The owner of the land, on the other hand, has the option of either paying for the building or selling his land to the owner of the building. But he cannot refuse both to pay for the building and to sell the land and in addition, compel the owner of the building to remove it from the land where it is erected.
PROPERTY
Held/Ratio: Yes. The 34 sq. m. portion of land and built thereon in good faith is a portion of Dumlaos kitchen and has been in the possession of defendant since 1952. Dumlao, the owner of the building erected in good faith on land owned by another si entitled to retain the possession of the land until he is paid the value of his building. On the other hand, Depra, as the owner of the land, has the option to either (1) pay for the encroaching part of Dumalaos kitchen or (2) sell the encroached part. And Depra is entitled to have the kitchen removed only when, after having chosen to sell his encroached land, Dumlao fails to pay the same. Judgment: The judgment of the trial court is set aside and this case is hereby ordered remanded to the RTC of Iloilo for further proceedings. TECHNOGAS PHILS V CA Art 527 of the Civil Code presumes good faith, and since no proof exists to show that the encroachment was done in bad faith by the builder of the encroaching structures, good faith is presumed. It is presumed that possession continues to be enjoyed in the same character in which it
Good faith consists in the belief of the builder that the land he is building on is his, and his ignorance of any defect or flaw in his title. 2 Art 448.The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof
1
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Appendix
PECSON V. CA G.R. NO. 115814, MAY 26 1995 By its clear language, Article 448 refers to a land whose ownership is claimed by two or more parties, one of whom has built some works, or sown or planted something. Article 448 does not apply to a case where the owner of the land is the builder, sower, or planter who then later loses ownership of the land by sale or donation. Elsewise stated, where the true owner himself is the builder of works on his own land, the issue of good faith or bad faith is entirely irrelevant. Nevertheless, the provision therein on indemnity may be applied by analogy considering that the primary intent of Article 448 is to avoid a state of forced co-ownership and that the parties, including the two courts below, in the main agree that Articles 448 and 546 of the Civil Code are applicable and indemnity for the improvements may be paid although they differ as to the basis of the indemnity. Article 546 remains silent with regard to how the value of the useful improvements should be determined. However, since the objective of Article 546 of the Civil Code is to administer justice between the parties involved, it is therefore the current market value of the improvements which should be made the basis of reimbursement (therefore, the respondent court made an error in ruling that construction cost will be the value of reimbursement). The trial court also erred in ordering Pecson to pay Nuguid the monthly rentals. Since the private respondents had opted to appropriate the apartment building, Pecson was entitled to the possession and enjoyment of the apartment building as well as of the portion of the lot where the building has been constructed, until he was paid the proper indemnity. The right to retain the improvements while the corresponding indemnity is not paid implies the tenancy or possession in fact of the land in which it is built, planted or sown. COLEONGCO V. REGALADO G.R. NO. L-4529; DECEMBER 29, 1952; Doctrine: When does Art 361 operate? BUILDER ON OTHER PERSONS LAND; GOOD FAITH
Article 361 applies only in cases where a person constructs a building on the land of another in good or in bad faith, as the case may be. It does not apply to a case where a person constructs a building on his own land, for then there can be no question as to good or bad faith on the part of the builder. SARMIENTO V. AGANA G.R. NO. 57288. APRIL 30, 1984 Doctrine: Article 448 of the Civil Code. In regards builders in good faith, Article 448 of the Code provides that The owner of the land on which anything has been built, sown or planted in good faith, shall have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided for in articles 546 and 548, or to oblige the one who built or planted to pay the price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees. In such case, he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof." GEMINIANO V. COURT OF APPEALS G.R. NO. 120303, JULY 24, 1996, That Article 448 of the Civil Code, in relation to Article 546 of the same Code, which allows full reimbursement of useful improvements and retention of the premises until reimbursement is made, applies only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. It does not apply where one's only interest is that of a lessee under a rental contract; otherwise, it would always be in the power of the tenant to "improve" his landlord out of his property. PLEASANTVILLE DEVT. CORP. V. CA G.R. NO. L- 79688, FEBRUARY 1, 1996 Good faith consists in the belief of the builder that the land he is building on is his and his ignorance of any defect or flaw in his title 9. And as good faith is presumed, petitioner has the burden of proving bad faith on the part of respondent.
PROPERTY
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Chapter I. Background, Basic Concepts and General Principles
LAND TITLES and DEEDS

CHAPTER I: BACKGROUND, BASIC CONCEPTS AND GENERAL PRINCIPLES I. Definitions of the Basic Concepts II. Nature of Land Registration III. Purpose of Registration IV. Modes of Acquiring Land Titles V. Jurisdiction CHAPTER 2: TORRENS CERTIFICATE OF TITLE I. Original Certificate of Title II. Transfer Certificate of Title III. Patents CHAPTER 3: ORIGINAL REGISTRATION I. Laws Governing Land Registration II. Effect of Registration III. Original Registration Proceedings IV. Attributes of and Limitations on Certificates of Title and Registration V. Judicial Confirmation of Imperfect or Incomplete Titles CHAPTER 4: CADASTRAL REGISTRATION PROCEEDINGS I. Steps in Cadastral Registration Proceedings CHAPTER 5: SUBSEQUENT REGISTRATION I. Two Types of Dealings II. The Necessity and Effects of Registration III. Voluntary vs. Involuntary Dealings IV. Registration of Voluntary Instruments in General V. Registration of Deeds of Sale and Transfers VI. Mortgages and Leases VII.Powers of Attorney, Trusts VIII. Involuntary Dealings CHAPTER 6: SYSTEM OF REGISTRATION OF UNREGISTERED LANDS I. Key Points in the Registration of Unregistered Lands II. Procedure in the Registration of Unregistered Lands CHAPTER 7: REGISTRATION OF PUBLIC LANDS I. Classification of Land of the
II. III. IV. V. VI.
92 92 92 93 93 93 94 94 94 94 95 95 95 95 101 103 104 105 106 106 106 107 107 108 110 110 111
Public Domain Nature of Public Lands Procedure Role of Director of Lands Modes of Alienating Public Lands Patents
116 116 116 117 117 117 118 120 120 120 120 120 120
CHAPTER 8: REMEDIES OF THE AGGRIEVED PARTY CHAPTER 9: RECONSTITUTION 0F TITLES I. Grounds II. Petitions For Reconstitution III. Duties of the Land Registration IV. Authority V. Effects of Fraud in the Reconstitution
LAND TITLES AND DEEDS
115 115 115 116
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Land Titles and Deeds

FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE Prof. Rommel Casis
FACULTY EDITOR
CIVIL LAW Cez Villavert Michelle Dy

SUBJECT EDITORS
LECTURES Edel Cruz

HEAD
ACADEMICS COMMITTEE Samantha Poblacion

DIRECTOR FOR ACADEMICS EDITOR-IN-CHIEF
-------Kae Guerrero
PRINTING AND DISTRIBUTION
LAND TITLES AND DEEDS Kat Aglibot

LEAD WRITER
Rania Joya
DEPUTY DIRECTOR FOR ACADEMICS LAYOUT HEAD
-------Leo Zulueta
LOGO, COVER AND TEMPLATE DESIGN
Chapter I: Background, Basic Concepts and General Principles

This 1st Chapter will give an overview of the definitions of concepts relating to Land, Titles and Deeds. It also includes a short discussion of what exactly is land registration. There are FIVE MAJOR LESSONS in this section: I. II. III. IV. V. Definitions of the Basic Concepts Nature of Land Registration Purpose of Registration Modes of Acquiring Land Titles Jurisdiction
5. Signatue of grantor 6. Witnesses D. FEE SIMPLE Absolute title; absolute estate in perpetuity. Land is conferred upon a man and his heirs absolutely and without any limitation imposed upon the state. E. REGISTRATION Process whereby the State provides a public record of the title itself upon which a prospective purchaser or someone else interested may rely. It is a means to guarantee the title F. RECORDING It is the process whereby Register of Deeds writes information in his Registry Book. This does not guarantee the title
I. DEFINITIONS CONCEPTS
AND
BASIC
A. THE TORRENS SYSTEM A system for registration of land under which, upon landowners application, the court may, after appropriate proceedings, direct the issuance of a certificate of title. (Blacks Law Dictionary) B. LAND TITLE Evidence of the right of the owner or the extent of his interest, and by which means he can maintain control, and as a rule assert right to exclusive possession and enjoyment of property. C. DEED An instrument in writing which any real estate or interest therein is created, alienated, mortgaged or assigned or by which title to any real estate may be affected in law or equity. Necessarily includes: 1. The name of the Grantor 2. The name of the Grantee 3. Words of grant 4. Description of property
II. NATURE AND STAGES

Land registration is a proceeding in rem. Roxas vs. Enriquez, (1914): A proceeding in rem, dealing with a tangible res, may be instituted and carried to judgment, without personal service.
PD 1529 Sec. 2 Nature of registration proceedings; jurisdiction of courts. Judicial proceedings for the registration of lands throughout the Philippines shall be in rem and shall be based on the generally accepted principles underlying the Torrens system. xxx
3 Stages: 1. Production & delivery of deed by grantor to grantee without registration 2. Deed of conveyance is recorded to bind 3rd persons 3. Registration of title
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III. PURPOSE OF REGISTRATION

1. Serve as constructive notice 2. Prevent fraudulent claims 3. Protect interest of strangers to transaction 4. Grey Alba vs. CA, (1910): To establish and certify to the ownership of an absolute and indefeasible title to realty, and to simplify its transfer. 5. SM Prime Holdings vs. Angela Madayag (2009, Nachura): The fundamental purpose of the Land Registration Law (Presidential Decree No. 1529) is to finally settle title to real property in order to preempt any question on the legality of the title except claims that were noted on the certificate itself at the time of registration or those that arose subsequent thereto. Consequently, once the title is registered under the said law, owners can rest secure on their ownership and possession.
title to lands, including improvements and interests therein, and over all petitions filed after original registration of title, with power to hear and determine all questions arising upon such applications or petitions. xxx BP 129 Sec. 34 Delegated jurisdiction in cadastral and land registration cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may be assigned by the Supreme Court to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or contested lots the where the value of which does not exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit of the claimant or by agreement of the respective claimants if there are more than one, or from the corresponding tax declaration of the real property. Their decisions in these cases shall be appealable in the same manner as decisions of the Regional Trial Courts. (as amended by R.A. No. 7691)
IV. MODES TITLES
OF
ACQUIRING
LAND
1. Title by public grant conveyance of public land by government to a private individual 2. Title by acquisitive prescription open, continuous, exclusive, notorious possession of a property 3. Title by accretion alluvion 4. Title by reclamation filling of submerged land by deliberate act and reclaiming title thereto; government 5. Title by voluntary transfer private grant; voluntary execution of deed of conveyance 6. Title by involuntary alienation no consent from owner of land; forcible acquisition by state (expropriation) 7. Title by descent or devise hereditary succession to the estate of deceased owner 8. Title by emancipation patent or grant for purpose of ameliorating sad plight of tenant-farmers; not transferable except by hereditary succession.
GENERAL RULE: Land registration proceedings and all petitions after original registration of titles are filed with the RTCs of the province or city where the land or a portion or it lies. SM Prime Holdings vs. Angela Madayag (2009, Nachura): Presidential Decree (P.D.) No. 1529 eliminated the distinction between the general jurisdiction vested in the RTC and the latters limited jurisdiction when acting merely as a land registration court. Land registration courts, as such, can now hear and decide even controversial and contentious cases, as well as those involving substantial issues. It may, therefore, hear and determine all questions that arise from a petition for registration. EXCEPTIONS: When the case involves o lots without controversy or opposition o contested lots where the value does not exceed P100,000.00, in which case, the MTCs have jurisdiction.
V. JURISDICTION (ASKED IN 83)

PD 1529 Sec. 2 Nature of registration proceedings; jurisdiction of courts. xxx (Courts of First Instance) Regional Trial Courts shall have exclusive jurisdiction over all applications for original registration of
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Chapter II. Torrens Certificate of Title
Chapter 2: Torrens Certificate of Title

This 2nd Chapter will explore the three major kinds of Torrens certificate of title. These are: I. Original Certificate of Title II. Transfer Certificate of Title III. Patents
other deeds and conveyance, whereupon a certificate of title shall be entered as in other cases of registered land, and an owner's duplicate issued to the grantee. The deed, grant, patent or instrument of conveyance from the Government to the grantee shall not take effect as a conveyance or bind the land but shall operate only as a contract between the Government and the grantee and as evidence of authority to the Register of Deeds to make registration. It is the act of registration that shall be the operative act to affect and convey the land, and in all cases under this Decree, registration shall be made in the office of the Register of Deeds of the province or city where the land lies. The fees for registration shall be paid by the grantee. After due registration and issuance of the certificate of title, such land shall be deemed to be registered land to all intents and purposes under this Decree.
I. ORIGINAL CERTIFICATE TITLE or OCT
OF
It is the first certificate of title issued in the name of a registered owner by the Register of Deeds covering a parcel of land which had been registered under the Torrens System, by virtue of judicial or administrative proceedings.
II. TRANSFER TITLE
CERTIFICATE
OF
The subsequent certificate of title pursuant to any deed of transfer or conveyance to another person. The Register of Deeds shall make a new certificate of title and given him an owners duplicate certificate. The previous certificate (need not be an OCT) shall be stamped cancelled.
PD 1529 Sec. 43 Transfer Certificate of Title. The subsequent certificate of title that may be issued by the Register of Deeds pursuant to any voluntary or involuntary instrument relating to the same land shall be in like form, entitled "Transfer Certificate of Title", and likewise issued in duplicate. The certificate shall show the number of the next previous certificate covering the same land and also the fact that it was originally registered, giving the record number, the number of the original certificate of title, and the volume and page of the registration book in which the latter is found.
NOTE: Patents only involve public lands which are alienated by the Government, pursuant to the Public Land Act. The patent (even if denominated as deed of conveyance) is not really a conveyance but a contract between the grantee and the Government and evidence of authority to the Register of Deeds to make registration. The act of registration is the operative act to affect and convey the land. (Patents will be discussed more thoroughly in Chapter 7.) GENERAL RULE: A Torrens Certificate of Title is valid and enforceable against the whole world. (Asked in 08) Egao vs. CA, (1989): A Torrens title, once registered, cannot be defeated, even by adverse, open and notorious possession. A registered title under the Torrens system cannot be defeated by prescription. The title, once registered, is notice to the whole world. All persons must take notice. No one can plead ignorance of the registration.
III.PATENTS
PD 1529 Sec. 103 Certificates of title pursuant to patents. Whenever public land is by the Government alienated, granted or conveyed to any person, the same shall be brought forthwith under the operation of this Decree. It shall be the duty of the official issuing the instrument of alienation, grant, patent or conveyance in behalf of the Government to cause such instrument to be filed with the Register of Deeds of the province or city where the land lies, and to be there registered like
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Chapter III. Original Registration
Chapter 3: Original Registration

This 3rd Chapter will first give you everything you need to know about original land registration: a summary of pertinent laws, steps in original registration proceedings, among others. The chapter discusses FIVE MAJOR LESSONS: I. II. III. IV. Laws Governing Land Registration Effect of Registration Original Registration Proceedings Attributes of and Limitations on Certificates of Title and Registration V. Judicial Confirmation of Imperfect or Incomplete Titles
II. EFFECT OF REGISTRATION

Registration does not vest or give title to the land, but merely confirms and thereafter protects the title already possessed by the owner, making it imprescriptible by occupation of third parties. It does not give the owner any better title than he has. (Asked in 98) Vagalidad vs. Vagalidad, (2006): Registration is not a mode of acquiring ownership. A certificate of title cannot be used to protect a usurper from the true owner or as a shield for the commission of fraud. Camitan and Lopez vs. Fidelity Investment Corp.: (2008,Nachura):Possession of an owners duplicate copy of a certificate of title is not necessarily equivalent to ownership the land covered by it. The certificate by itself does not vest ownership. It is merely an evidence of title over the property.
I. LAWS GOVERNING REGISTRATION
LAND
A. PD NO. 1529 The Property Registration Decree covers both ordinary and cadastral registration proceedings. It supersedes the Land Registration Act and the Cadastral Act. Application of the Land Registration Act, as amended by the Property Registration Decree: (Asked in 89 and 07) B. CA 141 The Public Land Act governs the procedure for the judicial confirmation of imperfect or incomplete titles. It applies to lands of the public domain which have been declared open to disposition or concession and officially delimited and classified. C. RA NO. 8371 The Indigenous Peoples Rights Act recognizes the rights of ownership and possession of indigenous cultural communities to their ancestral domains and lands on the basis of native title, and defines the extent of these lands and domains. It expressly converts ancestral lands into public agricultural lands, and individuals members of the cultural communicates shall have the option to secure title to their ancestral lands under the CA 141 or PD 1529. NOTE: The IPRA still refers to the Land Registration Act and not the Property Registration Decree, which bolsters the argument that the former was not repealed by the latter.
III.
ORIGINAL PROCEEDING
REGISTRATION
Steps in Original Registration Proceedings: 1. Determine if the land is registrable 2. Determine if you are qualified to apply 3. Survey the land 4. File the application (survey attached) for land registration with the appropriate court 5. Court sets initial hearing 6. Publication of the initial hearing 7. File an opposition to the application 8. Hearing 9. Judgment 10. Issuance of decree A. WHAT LANDS ARE 1. Registrable lands a. Private Lands b. Agricultural Lands
1987 CONSTITUTION Art. XII Sec. 2 xxx With the exception of agricultural lands, all other natural resources shall not be alienated. xxx Sec 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. xxx
REGISTRABLE?
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Republic vs. CA and Naguit, (2005): If in the public domain, the land must be classified as alienable and disposable. It must be classified as such at the time of filing the application for registration.
Private corporations may not hold alienable lands of the public domain except by lease:
2. Non- registrable lands: (Asked in 07)

1987, CONSTITUTION Art. XII Sec. 2 All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. xxx Civil Code Art. 420 The following things are property of public dominion: 1. Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State, banks, shores, roadsteads, and others of similar character; 2. Those which belong to the State, without being for public use, and are intended for some public service or for the development of the national wealth.
1987, CONSTITUTION Art. XII Sec. 3 xxx Private corporations or associations may not hold alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. xxx
Private lands may be owned for as long as the corporation is at least 60% Filipino. :
1987, CONSTITUTION Art. XII Sec. 2 xxx The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, and under such terms and conditions as may be provided by law. xxx
The following lands cannot be registered: Forest or timberlands Lands for public use: roads, ports and bridges, etc. Lands which are owned by the State for public service or development of national wealth. and
Additional Requirements: (OCEN-PAAL)
B. WHO MAY APPLY? Constitutional Requirements Limitations: Only Filipino Citizens:
PD 1529 Sec. 14 Who may apply. The following persons may file in the proper (Court of First Instance) Regional Trial Court an application for registration of title to land, whether personally or through their duly authorized representatives: (1) Those who by themselves or through their predecessors-in-interest have been in Open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier. (2) Those who have acquired ownership of private lands by Prescription under the provision of existing laws. (3) Those who have acquired ownership of private lands or abandoned river beds by right of Accession or accretion under the existing laws. (4) Those who have acquired ownership of land in any other manner provided for by Law. Where the land is Owned in common, all the coowners shall file the application jointly. Where the land has been sold under Pacto de retro, the vendor a retro may file an application
1987, CONSTITUTION Art. XII Sec. 3 xxx Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof by purchase, homestead, or grant. Xxx
Exceptions: 1. Aliens by way of hereditary succession 2. Natural born citizens who have 3. lost their citizenship- limited to 4. 5,000 sq. m. for urban land and 3 hectares for rural land (RA No. 7042 as amended by RA No. 8179)
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for the original registration of the land, provided, however, that should the period for redemption expire during the pendency of the registration proceedings and ownership to the property consolidated in the vendee a retro, the latter shall be substituted for the applicant and may continue the proceedings. A trustee on behalf of his principal may apply for original registration of any land held in trust by him, unless prohibited by the instrument creating the trust.
The application shall contain a description of the land and shall state the citizenship and civil status of the applicant, whether single or married, and, if married, the name of the wife or husband, and, if the marriage has been legally dissolved, when and how the marriage relation terminated. It shall also state the full names and addresses of all occupants of the land and those of the adjoining owners, if known, and, if not known, it shall state the extent of the search made to find them.
Judicial Confirmation of Title: CA 141 vs. PD 1529 Republic vs. Tsai, (2009): CA 141 has been amended many timesAs the law now stands, a mere showing of possession and occupation for 30 years or more is not sufficient. Therefore, since the effectivity of PD 1073 on 25 January 1977, it must now be shown that possession and occupation of a piece of land by the applicant, by himself or through his predecessors-ininterest, started on 12 June 1945 or earlier. This provision is in total conformity with Section 14(1) of PD 1529. BUT take note: There are still some cases that use CA 141 for judicial confirmation of imperfect title:
Republic vs. Fabio, (2008): CA 141, also known as the Public Land Act, remains to this day the existing general law governing the classification and disposition of lands of the public domain, other than timber and mineral lands. C. SURVEY The survey may be done by a public or private surveyor. When done by a private surveyor it has to be approved by the Land Management Bureau. PD 239 withdrew the authority of the Land Registration Authority to approve original survey plans. D. APPLICATION
PD 1529 Sec. 15 Form and contents. The application for land registration shall be in writing, signed by the application or the person duly authorized in his behalf, and sworn to before any officer authorized to administer oaths for the province or city where the application was actually signed. If there is more than one applicant, the application shall be signed and sworn to by and in behalf of each.
The application for land registration shall be: in writing signed and sworn to by the applicant/duly authorized person, and if more than one applicant, it shall be signed and sworn to by and in behalf of each It shall contain: a description of the land citizenship and civil status of the applicant if married, the name of the wife or husband if the marriage has been legally dissolved, when and how full names and addresses of all occupants and those of the adjoining owners, if known if not known, it shall state the extent of the search made to find them.
Note: It must be accompanied by the original tracing cloth plan, white or blue copies thereof, the original and copies of the technical description and geodetic engineers certification. Special Cases:
PD 1529 Sec. 20 When land applied for borders on road. If the application describes the land as bounded by a public or private way or road, it shall state whether or not the applicant claims any and what portion of the land within the limits of the way or road, and whether the applicant desires to have the line of the way or road determined. PD 1529 Sec. 16 Non-resident applicant. If the applicant is not a resident of the Philippines, he shall file with his application an instrument in due form appointing an agent or representative residing in the Philippines, giving his full name and postal address, and shall therein agree that the service
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of any legal process in the proceedings under or growing out of the application made upon his agent or representative shall be of the same legal effect as if made upon the applicant within the Philippines. If the agent or representative dies, or leaves the Philippines, the applicant shall forthwith make another appointment for the substitute, and, if he fails to do so the court may dismiss the application.
F. PUBLICATION
PD 1529 Sec. 23 xxx The public shall be given notice of the initial hearing of the application for land registration by means of (1) publication; (2) mailing; and (3) posting. 1. By publication. Upon receipt of the order of the court setting the time for initial hearing, the Commissioner of Land Registration shall cause notice of initial hearing to be published once in the Official Gazette and once in a newspaper of general circulation in the Philippines: Provided, however, that the publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court. Said notice shall be addressed to all persons appearing to have an interest in the land involved including the adjoining owners so far as known, and "to all whom it may concern". Said notice shall also require all persons concerned to appear in court at a certain date and time to show cause why the prayer of said application shall not be granted. 2. By mailing. (a) Mailing of notice to persons named in the application. The Commissioner of Land Registration shall also, within seven days after publication of said notice in the Official Gazette, as hereinbefore provided, cause a copy of the notice of initial hearing to be mailed to every person named in the notice whose address is known. (b) Mailing of notice to the Secretary of Public Highways, the Provincial Governor and the Mayor. If the applicant requests to have the line of a public way or road determined, the Commissioner of Land Registration shall cause a copy of said notice of initial hearing to be mailed to the Secretary of Public Highways, to the Provincial Governor, and to the Mayor of the municipality or city, as the case may be, in which the land lies. (c) Mailing of notice to the Secretary of Agrarian Reform, the Solicitor General, the Director of Lands, the Director of Public Works, the Director of Forest Development, the Director of Mines and the Director of Fisheries and Aquatic Resources. If the land borders on a river, navigable stream or shore, or on an arm of the sea where a river or harbor line has been established, or on a lake, or if it otherwise appears from the application or the proceedings that a tenant-farmer or the national government may have a claim adverse to that of the applicant, notice of the initial hearing shall be given in the same manner to the Secretary of
If the land bounded by a road, the applicant must state in his application if he claims any portion of the land within the limits of the road, or if he likes to have the boundaries determined. If the applicant is a non-resident, he shall appoint an agent or representative who is a Philippine resident. Intestate Estate of Don Mariano San Pedro vs. CA, (1996): A person claiming ownership of real property must clearly identify the land claimed by him. In re: Application for Land Registration vs. Republic, (2008, Nachura): An applicant in a land registration case must prove the facts and circumstances evidencing the alleged ownership of the land applied for. General statements which are mere conclusions of law and not factual proof of possession are unavailing. The deeds in its favor only proved possession of its predecessorsin-interest as early as 1948. (The law now stands that a mere showing of possession for 30 years is not sufficient. OCEN possession must be shown to have stated on June 12, 1945 or earlier.)
E. INITIAL HEARING
PD 1529 Sec. 23 Notice of initial hearing, publication, etc. The court shall, within five days from filing of the application, issue an order setting the date and hour of the initial hearing which shall not be earlier than forty-five days nor later than ninety days from the date of the order. xxx
The court shall issue an order setting the date and hour of the initial hearing within five days from filing of the application. The initial hearing shall be 45-90 days from the date of the order.
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Agrarian Reform, the Solicitor General, the Director of Lands, the Director of Mines and/or the Director of Fisheries and Aquatic Resources, as may be appropriate. 3. By posting. The Commissioner of Land Registration shall also cause a duly attested copy of the notice of initial hearing to be posted by the sheriff of the province or city, as the case may be, or by his deputy, in a conspicuous place on each parcel of land included in the application and also in a conspicuous place on the bulletin board of the municipal building of the municipality or city in which the land or portion thereof is situated, fourteen days at least before the date of initial hearing. The court may also cause notice to be served to such other persons and in such manner as it may deem proper.
3. By Posting CLR shall cause the sheriff or his deputy to post the notice at least 14 days before the hearing: in a conspicuous place on each parcel of land included in the application and in a conspicuous place on the bulletin board of the municipal building of the municipality or city in which the land or portion thereof is situated. G. OPPOSITION (ASKED IN 89)
PD 1529 Sec. 23 Opposition to application in ordinary proceedings. Any person claiming an interest, whether named in the notice or not, may appear and file an opposition on or before the date of initial hearing, or within such further time as may be allowed by the court. The opposition shall state all the objections to the application and shall set forth the interest claimed by the party filing the same and apply for the remedy desired, and shall be signed and sworn to by him or by some other duly authorized person. If the opposition or the adverse claim of any person covers only a portion of the lot and said portion is not properly delimited on the plan attached to the application, or in case of undivided co-ownership, conflicting claims of ownership or possession, or overlapping of boundaries, the court may require the parties to submit a subdivision plan duly approved by the Director of Lands. PD 1529 Sec 26. Order of default; effect. If no person appears and answers within the time allowed, the court shall, upon motion of the applicant, no reason to the contrary appearing, order a default to be recorded and require the applicant to present evidence. By the description in the notice "To all Whom It May Concern", all the world are made parties defendant and shall be concluded by the default order. Where an appearance has been entered and an answer filed, a default order shall be entered against persons who did not appear and answer.
1. By Publication The Commissioner of Land Registration shall cause it to be published: once in the Official Gazette (sufficient to confer jurisdiction) and once in a newspaper of general circulation in the Philippines The notice is addressed to: all persons appearing to have an interest in the land the adjoining owners so far as known "to all whom it may concern" 2. By Mailing Within 7 days from publication in the OG, the Commissioner of Land Registration shall mail a copy of the notice to: a. every person named in the notice whose address is known. b. the Secretary of Public Highways, to the Provincial Governor, and to the Mayor of the municipality or city, in which the land lies, if the applicant requests to have the line of a public way or road determined c. Secretary of Agrarian Reform, the Solicitor General, the Director of Lands, the Director of Mines and/or the Director of Fisheries and Aquatic Resources, (as appropriate) if the land borders on a river, navigable stream or shore, or on an arm of the sea where a river or harbor line has been established, or on a lake, or if it otherwise appears from the application or the proceedings that a tenant-farmer or the national government may have a claim adverse to that of the applicant
Who may file? Any person claiming an interest. When to file? On or before the date of initial hearing, or within such further time as may be allowed by the court. What shall it contain? It shall state all the objections and the interest claimed by the party the remedy desired. How shall it be made? It shall be signed and sworn to by him or by some other duly authorized person.
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NOTE: If no one appears/files an answer, upon motion, the court shall order a default to be recorded. By the description in the notice "To all Whom It May Concern", all the world are made parties defendant and shall be concluded by the default order. Where an appearance has been entered and an answer filed, a default order shall be entered against persons who did not appear and answer. Director of Lands vs. Agustin, (1921): Absence of opposition does not justify outright registration. H. HEARING Proof of Ownership: 1. Municipality of Santiago vs. CA, (1983): Tax declaration and receipts are not conclusive but have strong probative value when accompanied by proof of actual possession. 2. Republic vs. Tayag, (1984): Payment in one lump sum to cover all past taxes is irregular and affects the validity of the applicants claim of ownership 3. Spanish titles are no longer admissible. I. JUDGMENT
entered the land after the issuance of the decree and who was not a party in the case. He can only be proceeded against in a separate action for ejectment or reinvindicatory action. 2. Writ of demolition Gawaran vs. IAC, (1988): This writ is a complement of the writ of possession. J. ISSUANCE OF DECREE
PD 1529 Sec 39. Preparation of decree and Certificate of Title. After the judgment directing the registration of title to land has become final, the court shall, within fifteen days from entry of judgment, issue an order directing the Commissioner to issue the corresponding decree of registration and certificate of title. The clerk of court shall send, within fifteen days from entry of judgment, certified copies of the judgment and of the order of the court directing the Commissioner to issue the corresponding decree of registration and certificate of title, and a certificate stating that the decision has not been amended, reconsidered, nor appealed, and has become final. Thereupon, the Commissioner shall cause to be prepared the decree of registration as well as the original and duplicate of the corresponding original certificate of title. The original certificate of title shall be a true copy of the decree of registration. The decree of registration shall be signed by the Commissioner, entered and filed in the Land Registration Commission. The original of the original certificate of title shall also be signed by the Commissioner and shall be sent, together with the owner's duplicate certificate, to the Register of Deeds of the city or province where the property is situated for entry in his registration book. PD 1529 Sec 40. Entry of Original Certificate of Title. Upon receipt by the Register of Deeds of the original and duplicate copies of the original certificate of title the same shall be entered in his record book and shall be numbered, dated, signed and sealed by the Register of Deeds with the seal of his office. Said certificate of title shall take effect upon the date of entry thereof. The Register of Deeds shall forthwith send notice by mail to the registered owner that his owner's duplicate is ready for delivery to him upon payment of legal fees.
PD 1529 Sec 30. When judgment becomes final; duty to cause issuance of decree. The judgment rendered in a land registration proceedings becomes final upon the expiration of thirty days to be counted from the data of receipt of notice of the judgment. An appeal may be taken from the judgment of the court as in ordinary civil cases. After judgment has become final and executory, it shall devolve upon the court to forthwith issue an order in accordance with Section 39 of this Decree to the Commissioner for the issuance of the decree of registration and the corresponding certificate of title in favor of the person adjudged entitled to registration.
Judgment becomes final upon expiration of 30 days from receipt of notice of judgment.
Forms of Judgment: 1. Writ of possession Vencilao vs. Vano, (1990): The writ may be issued not only against the person defeated in the registration case but also against any one adversely occupying the land during the proceedings. Bernas vs. Nuevo, (1984): The writ does not lie against a person who
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Preparation of the Decree: Court directs the Land Registration Authority to issue a decree of registration and certificate of Title within 15 days from entry of judgment. o Appeal reckoned from the Solicitor Generals receipt of the decision o Becomes final 15 days from receipt Commissioner signs the decree Decree is entered and filed with the LRC OCT and owners duplicate certificate are sent to the Register of Deeds where property is situated. Register of Deeds enters the information in his registration book. Register of Deeds sends notice by mail to owner that his duplicate is ready for delivery upon payment of legal fees. Gomez vs. CA, (1988): Court retains jurisdiction over the case until after the expiration of 1 year from the issuance of the decree of registration.
government irrigation canal or lateral thereof, if the certificate of title does not state that the boundaries of such highway or irrigation canal or lateral thereof have been determined. Fourth. Any disposition of the property or limitation on the use thereof by virtue of, or pursuant to, Presidential Decree No. 27 or any other law or regulations on agrarian reform.
A. FREE FROM ENCUMBRANCES 1.
LIENS
AND
2. 3.
4.
IV. ATTRIBUTES OF AND LIMITATION IN CERTIFICATE OF TITLE AND REGISTERED LAND (FIIC)
PD 1529 Sec 44. Statutory liens affecting title. Every registered owner receiving a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted in said certificate and any of the following encumbrances which may be subsisting, namely: First. Liens, claims or rights arising or existing under the laws and Constitution of the Philippines which are not by law required to appear of record in the Registry of Deeds in order to be valid against subsequent purchasers or encumbrancers of record. Second. Unpaid real estate taxes levied and assessed within two years immediately preceding the acquisition of any right over the land by an innocent purchaser for value, without prejudice to the right of the government to collect taxes payable before that period from the delinquent taxpayer alone. Third. Any public highway or private way established or recognized by law, or any
EXCEPT those noted in the certificate and CATH: Liens, claims or rights existing under the laws and Constitution which are not required to appear of record in the Registry of Deeds Unpaid real estate Taxes levied and assessed within 2 yrs preceding the acquisition of any right over the land Any public Highway or private way established or recognized by law, or any government irrigation canal or lateral thereof, if the certificate of title does not state that the boundaries of such have been determined. Any disposition of the property or limitation on the use thereof by virtue of, or pursuant to, Presidential Decree No. 27 or any other laws on Agrarian reform.
B. INDEFEASIBLE (ASKED IN08)

PD 1529 Sec 32. Review of decree of registration; Innocent purchaser for value. The decree of registration shall not be reopened or revised by reason of absence, minority, or other disability of any person adversely affected thereby, nor by any proceeding in any court for reversing judgments, subject, however, to the right of any person, including the government and the branches thereof, deprived of land or of any estate or interest therein by such adjudication or confirmation of title obtained by actual fraud, to file in the proper Court of First Instance a petition for reopening and review of the decree of registration not later than one year from and after the date of the entry of such decree of registration, but in no case shall such petition be entertained by the court where an innocent purchaser for value has acquired the land or an interest therein, whose rights may be prejudiced. Whenever the phrase "innocent purchaser for value" or an equivalent phrase occurs in this Decree, it shall be deemed to include an innocent lessee, mortgagee, or other encumbrancer for value. Upon the expiration of said period of one year,
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the decree of registration and the certificate of title issued shall become incontrovertible. Any person aggrieved by such decree of registration in any case may pursue his remedy by action for damages against the applicant or any other persons responsible for the fraud.
D. NOT SUBJECT ATTACK
TO
COLLATERAL
Ground for reopening and reviewing the decree of registration: actual fraud (Asked in 92) Periods: Must be reopened not later than 1 yr from and after the date of the entry of such decree. (Asked in 90 and 03) Upon the expiration of said period of one year, the decree of registration and the certificate of title issued shall become incontrovertible. The only remedy left is an action for damages. Prohibitions: Cannot be reopened because of absence, minority, or other disability of any person adversely affected thereby Cannot be reopened where an innocent purchaser for value may be prejudiced (includes an innocent lessee, mortgagee, or other encumbrancer for value.) Arguelles vs. Timbancaya, (1976): The rule on the incontrovertible nature of a certificate of title applies when what is involved is the validity of the OCT, not when it concerns that of the TCT.
PD 1529 Sec 48. Certificate not subject to collateral attack. A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or canceled except in a direct proceeding in accordance with law.
Spouses Padilla vs. Velasco, et. al, G.R. No. 169956 (2009, Nachura) Facts: Velasco et al (respondents) are the heirs of Artemio who died, leaving a parcel of land. He acquired it by virtue of a deed of sale in his favor. The Padilla sps (petitioners) entered the land as trustees by virtue of a deed of sale executed by a bank in favor of the Solomon sps. Velascos demanded that the Padillas vacate the property. Padillas cut trees, built a house and harvested crops. Velascos filed a complaint for accion publiciana before the RTC. Velascos presented deed of sale in favor of Artemio, while Padillas presented deed of sale between bank and Solomons. The Padillas also argue that the Solomon sps acquired the land in good faith and for value and that they argue that Lot 2161 (the one they are occupying) and Lot 76-pt (the lot the Solomon spouses bought) are one and the same. Held: The Velascos have a better right to the land. The instant case is for accion publiciana, or for recovery of the right to possess. Accion publiciana is also used to refer to an ejectment suit where the cause of dispossession is not among the grounds for forcible entry and unlawful detainer, or when possession has been lost for more than one year and can no longer be maintained under Rule 70 of the Rules of Court. The objective of the plaintiffs in accion publiciana is to recover possession only, not ownership. The Velascos were able to establish lawful possession of the land when the Padillas occupied the property. The OCT was issued to the original owners who then sold the land to Artemio. From then on, he was in continuous possession of the land until his death. It was only in 1987, when the Padillas occupied the property. The argument that the lots are one and the same is a collateral attack on the title over the property which is registered in the name of Artemio, which cannot be countenanced.
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C. IMPRESCRIPTIBLE
PD 1529 Sec 47. Registered prescriptions. No title derogation of the title shall be acquired by possession. land not subject to to registered land in of the registered owner prescription or adverse
Barcelona vs. Barcelona, (1956): Prescription is unavailing not only against the registered owner but also against his hereditary successors because the latter merely step into the shoes of the decedent by operation of law and are merely the continuation of the personality of their predecessor-ininterest.
V. JUDICIAL CONFIRMATION OF IMPERFECT OR INCOMPLETE TITLES

CA 141 Sec 57 No title or right to, or equity in, any lands of the public domain may hereafter be acquired by prescription or by adverse possession or occupancy, or under or by virtue of any law in effect prior to American occupation, except as expressly provided by laws enacted after said occupation of the Philippines by the United States.
Such possession and occupation must have been OCEN and in the concept of owner since June 12, 1945 Application filed with proper court
C. PRIVATE CORPORATIONS Director Of Lands vs. IAC and Acme Plywood and Veneer Co., (1986): Where at the time the corporation acquired the land, its predecessor-in-interest had been in possession and occupation thereof in the manner and for the period prescribed by law as to entitle him to registration in his name, then the proscription against corporation acquiring alienable lands of the public domain does not apply for the land was no longer public land but private property. Since the land is private, the corporation can institute confirmation proceedings.
General Rule: No title or right to, or equity in, any lands of the public domain may be acquired by prescription or by adverse possession or occupancy except as expressly provided by law. The Public Land Act recognizes the concept of ownership under the civil law. This ownership is based on adverse possession and the right of acquisition is governed by the Chapter on judicial confirmation of imperfect or incomplete titles. This applies only to alienable and disposable agricultural lands of the public domain. Under Sec. 6 of CA 141, the classification of public lands into alienable and disposable forest lands, or mineral lands is the prerogative of the Executive Department. Bracewell vs. CA, (2000): The rule on confirmation of imperfect title does not apply unless and until the land classified as, say, forest land, is released in an official proclamation to that effect so that if may form part of the disposable agricultural lands of the public domain.
NOTE: MAXIMUM LAND THAT CAN BE APPLIED FOR: 144 hectares In case of foreigner, it sufficient that he is already Filipino citizen at the time of his application. Corporation who has less than 60% Filipino ownership cannot apply confirmation of imperfect title; can only lease PERSONS COMPETENT TO QUESTION LAND GRANT: Persons who obtained title from State or thru persons who obtained title from State.
A. PERIOD OF FILING RA No. 9176 extended the period to file an application for judicial confirmation of imperfect or incomplete title to December 31, 2020. It further limited the area applied for to 12 hectares.
B. REQUISITES: Filipino citizen He must have, by himself, or thru his predecessors in - interest, possessed and occupied an alienable and disposable agricultural portion of the public domain
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Chapter IV. Cadastral Registration Proceedings
Chapter 4: Cadastral Registration Proceedings

This 4th Chapter deals with processes involved in Cadastral Registration. Only one lesson is discussed in this Chapter. I. Steps in Cadastral Registration Proceedings
Unlike other kinds of registration, this is compulsory as it is initiated by the government.
(e) Any person who shall willfully obstruct the making of any survey undertaken by the Bureau of Lands or by a licensed Geodetic Engineer duly authorized to conduct the survey under this Section, or shall maliciously interfere with the placing of any monument or remove such monument, or shall destroy or remove any notice of survey posted on the land pursuant to law, shall be punished by a fine of not more than one thousand pesos or by imprisonment for not more than one year, or both. PD 1529 Sec 36. Petition for registration. When the lands have been surveyed or plotted, the Director of Lands, represented by the Solicitor General, shall institute original registration proceedings by filing the necessary petition in the Court of First Instance of the place where the land is situated against the holders, claimants, possessors, or occupants of such lands or any part thereof, stating in substance that public interest requires that the title to such lands be settled and adjudicated and praying that such titles be so settled and adjudicated: The petition shall contain a description of the lands and shall be accompanied by a plan thereof, and may contain such other data as may serve to furnish full notice to the occupants of the lands and to all persons who may claim any right or interest therein. Where the land consists of two or more parcels held or occupied by different persons, the plan shall indicate the boundaries or limits of the various parcels as accurately as possible. The parcels shall be known as "lots" and shall on the plan filed in the case be given separate numbers by the Director of Lands, which numbers shall be known as "cadastral lot numbers". The lots situated within each municipality shall, as far as practicable, be numbered consecutively beginning with number "one", and only one series of numbers shall be used for that purpose in each municipality. However in cities or townsites, a designation of the landholdings by blocks and lot numbers may be employed instead of the designation by cadastral lot numbers. The cadastral number of a lot shall not be changed after final decision has been entered decreasing the registration thereof, except by order of court. Future subdivisions of any lot shall be designated by a letter or letters of the alphabet added to the cadastral number of the lot to which the respective subdivisions pertain. The letter with which a subdivision is designated shall be known as its "cadastral letter": Provided, however, that the subdivisions of cities or townsites may be designated by blocks and lot numbers.
PD 1529 Sec 35. Cadastral Survey preparatory to filing of petition. (a) When in the opinion of the President of the Philippines public interest so requires that title to any unregistered lands be settled and adjudicated, he may to this end direct and order the Director of Lands to cause to be made a cadastral survey of the lands involved and the plans and technical description thereof prepared in due form. (b) Thereupon, the Director of Lands shall give notice to persons claiming any interest in the lands as well as to the general public, of the day on which such survey will begin, giving as fully and accurately as possible the description of the lands to be surveyed. Such notice shall be punished once in the Official Gazette, and a copy of the notice in English or the national language shall be posted in a conspicuous place on the bulletin board of the municipal building of the municipality in which the lands or any portion thereof is situated. A copy of the notice shall also be sent to the mayor of such municipality as well as to the barangay captain and likewise to the Sangguniang Panlalawigan and the Sangguniang Bayan concerned. (c) The Geodetic Engineers or other employees of the Bureau of Lands in charge of the survey shall give notice reasonably in advance of the date on which the survey of any portion of such lands is to begin, which notice shall be posted in the bulletin board of the municipal building of the municipality or barrio in which the lands are situated, and shall mark the boundaries of the lands by monuments set up in proper places thereon. It shall be lawful for such Geodetic Engineers and other employees to enter upon the lands whenever necessary for the purposes of such survey or the placing of monuments. (d) It shall be the duty of every person claiming an interest in the lands to be surveyed, or in any parcel thereof, to communicate with the Geodetic Engineer upon his request therefor all information possessed by such person concerning the boundary lines of any lands to which he claims title or in which he claims any interest.
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Chapter IV. Cadastral Registration Proceedings
I. STEPS IN CADASTRAL REGISTRATION PROCEEDINGS

1. Determination of the President that public interest requires title to unregistered lands be settled 2. Director of lands shall make a cadastral survey 3. Director of Lands gives notice to interested persons 4. Publication of notice 5. A copy of the notice shall also be sent to the mayor and the sanggunian 6. Geodetic engineers/ Bureau of Land employees shall notify (re: survey) by posting at the municipal building 7. Interested persons should communicate with the geodetic engineer if he requests for any information about the land 8. Actual survey/ plotting of the land 9. Director of Lands represented by Solicitor General shall institute original registration proceedings 10. Publication, mailing posting 11. Hearing 12. Decision 13. Issuance of the decree and certificate of title NOTE: In voluntary registration proceedings, there is no res judicata when the applicant fails to prove his title. In cadastral registration, if the applicant cannot prove that he is entitled to the land, the land becomes public land. There is res judicata.
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Chapter V. Subsequent Registration
Chapter 5: Subsequent Registration

This 5th Chapter tackles the subsequent registration pursuant to dealings such as conveyances or transfers. These dealings may be voluntary (sale, lease etc.) or involuntary (writs, orders etc.) There are EIGHT MAJOR LESSONS in this chapter: I. II. Two Types of Dealings The Necessity and Effects of Registration III. Voluntary vs. Involuntary Dealings IV. Registration of Voluntary Instruments in General V. Registration of Deeds of Sale and Transfers VI. Mortgages and Leases VII. Powers of Attorney, Trusts VIII. Involuntary Dealings
instrument, except a will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under this Decree, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies.
I. TWO TYPES OF DEALINGS

A. VOLUNTARY DEALINGS Deeds, instruments, documents which are the results of free and voluntary acts of parties thereto. B. INVOLUNTARY DEALINGS Writ, order, or process issued by the court of record affecting registered land, also other instruments which are not willful acts of the registered owner, executed without his knowledge or consent.
NOTE: The deed, mortgage, lease, or other voluntary instrument, except a will shall ONLY operate as: 1. A contract between the parties and 2. Evidence of authority to the Register of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned. A forged deed is an absolute nullity and conveys no title. (Asked in 85, 89, 00 and 05) EXCEPTION: If there is good faith, a TCT has already been issued to the purchaser, the latter being an innocent purchaser for value according to Sec. 39, PD 1529, then the title is good.
PD 1529 Sec 52. Constructive notice upon registration. Every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering.
II. NECESSITY AND REGISTRATION
EFFECTS
OF
PD 1529 Sec 51. Conveyance and other dealings by registered owner. An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the same in accordance with existing laws. He may use such forms of deeds, mortgages, leases or other voluntary instruments as are sufficient in law. But no deed, mortgage, lease, or other voluntary
Every entry affecting registered land shall, if registered, filed or entered in the office of the Register of Deeds be constructive notice to all persons from the time of registering.
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III.VOLUNTARY VS. INVOLUNTARY

VOLUNTARY DEALINGS Sale, mortgage, lease, patent, powers of attorney, trusts Presentation of the owners duplicate certificate of title is required to notify; mere entry insufficient An innocent purchaser for value of registered land becomes the registered owner the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the owners duplicate certificate of title covering the land sold and pays the registration fees. (Asked in 98) Villasor vs. Camon, (1951): It is necessary to register the deed or instrument in the entry book and a memorandum thereof shall also be made in the owners duplicate certificate and its original Spouses Labayen vs. Leonardo Serafica, (2008, Nachura): At the time of the filing of the petition for cancellation of encumbrance, the lease contract already lost its efficacy. Thus, there is no basis to save its annotation on defendants title. The fact that the cancellation of the lease contract was forged is of no moment, for there was no violation of a right.
DEALINGS
INVOLUNTARY DEALINGS Attachment, injunction, mandamus, levy on execution, notice of lis pendens Entry in the day book is sufficient notice to all persons Lenin vs. Bass, (1952): Entry thereof in the day book of the ROD is sufficient notice to all persons even if the owners duplicate certificate of title is not presented to the ROD.
Dir. Of Lands vs. Reyes, (1976): Entry in the day book is sufficient notice to all persons of an adverse claim without the same being annotated at the back of the certificate of title AFP Mutual Benefit Association vs. Santiago, (2008, Nachura): Entry of the attachment in the books is sufficient notice to all persons. Hence, the fact that the deed of sale was already annotated is of no moment with regard to third persons. The preference created by the levy on attachment is not diminished by the subsequent registration of the deed of sale.
General Rule: Campillo vs. PNB. (1969): A person dealing with registered property need not go beyond, but only has to rely on, the title. (Asked in 86 and 04) He is charged with notice only of such burdens and claims which are annotated on the title, for registration is the operative act that binds the property. (Asked in 84 and 04) When should a purchaser investigate? Banks are required to exercise more care and prudence in dealing with registered lands for their business is one affected with public interest. The general rule does not apply. Leung Yee vs. Strong Machinery, (1918): When party concerned has actual knowledge of facts and circumstances that would impel a reasonably cautious man to make inquiry. Jamoc vs. CA, (1991): When purchaser is in bad faith; e.g. he had full knowledge of a previous sale. Quiniano vs. CA, (1971): When a person buys land from one whose rights over the land is evidenced only by a deed of sale and an
annotation in the certificate of title but no TCT.
IV. REGISTRATION OF VOLUNTARY INSTRUMENTS IN GENERAL

PD 1529 Sec 54. Dealings less than ownership, how registered. No new certificate shall be entered or issued pursuant to any instrument which does not divest the ownership or title from the owner or from the transferee of the registered owners. All interests in registered land less than ownership shall be registered by filing with the Register of Deeds the instrument which creates or transfers or claims such interests and by a brief memorandum thereof made by the Register of Deeds upon the certificate of title, and signed by him. A similar memorandum shall also be made on the owner's duplicate. The cancellation or extinguishment of such interests shall be registered in the same manner. PD 1529 Sec 55. Grantee's name, nationality, etc., to be stated. Every deed or other voluntary instrument presented for registration shall contain or have endorsed upon it the full name, nationality, residence and postal address of the grantee or other person acquiring or claiming an interest under such instrument, and every deed shall
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also state whether the grantee is married or unmarried, and if married, the name in full of the husband or wife. If the grantee is a corporation or association, the instrument must contain a recital to show that such corporation or association is legally qualified to acquire private lands. Any change in the residence or postal address of such person shall be endorsed by the Register of Deeds on the original copy of the corresponding certificate of title, upon receiving a sworn statement of such change. All names and addresses shall also be entered on all certificates. Notices and processed issued in relation to registered land in pursuance of this Decree may be served upon any person in interest by mailing the same to the addresses given, and shall be binding, whether such person resides within or without the Philippines, but the court may, in its discretion, require further or other notice to be given in any case, if in its opinion the interest of justice so requires. PD 1529 Sec 56. Primary Entry Book; fees; certified copies. Each Register of Deeds shall keep a primary entry book in which, upon payment of the entry fee, he shall enter, in the order of their reception, all instruments including copies of writs and processes filed with him relating to registered land. He shall, as a preliminary process in registration, note in such book the date, hour and minute of reception of all instruments, in the order in which they were received. They shall be regarded as registered from the time so noted, and the memorandum of each instrument, when made on the certificate of title to which it refers, shall bear the same date: Provided, that the national government as well as the provincial and city governments shall be exempt from the payment of such fees in advance in order to be entitled to entry and registration. Every deed or other instrument, whether voluntary or involuntary, so filed with the Register of Deeds shall be numbered and indexed and endorsed with a reference to the proper certificate of title. All records and papers relative to registered land in the office of the Register of Deeds shall be open to the public in the same manner as court records, subject to such reasonable regulations as the Register of Deeds, under the direction of the Commissioner of Land Registration, may prescribe. All deeds and voluntary instruments shall be presented with their respective copies and shall be attested and sealed by the Register of Deeds, endorsed with the file number, and copies may be delivered to the person presenting them.
Certified copies of all instruments filed and registered may also be obtained from the Register of Deeds upon payment of the prescribed fees
A. PROCESS OF REGISTRATION: 1. File instrument creating or transferring interest and certificate of title with Register of Deeds together with: a. Owners duplicate b. Payment of fees & documentary stamp tax c. Evidence of full payment of real estate tax d. Document of transfer 1 copy additional for city/provincial assessor 2. Register of Deeds shall make a memorandum on the certificate of title, signed by him 3. TCT shall then be issued. NOTE: If the grantee is a corporation or association, it must show that it is qualified to acquire private lands. PNB vs. Fernandez, (1935): The issuance of a new transfer certificate without presentation of an owners duplicate is unwarranted and confers no right on the purchaser RA 456 prohibits registration of documents affecting real property which is delinquent in the payment of real estate taxes. Further, if evidence of such payment is not presented with 15 days form the date of entry of said document in the primary entry book of the register of deeds the entry shall be deemed cancelled. Pay fees and DST (government is exempt) The instruments are regarded as registered from the time ROD enters them in his book.
V. REGISTRATION OF DEEDS SALE AND TRANSFERS
OF
PD 1529 Sec 57. Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner's duplicate certificate.
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The Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a reference by number to the last preceding certificate. The original and the owner's duplicate of the grantor's certificate shall be stamped "canceled". The deed of conveyance shall be filled and indorsed with the number and the place of registration of the certificate of title of the land conveyed. PD 1529 Sec 58. Procedure where conveyance involves portion of land. If a deed or conveyance is for a part only of the land described in a certificate of title, the Register of Deeds shall not enter any transfer certificate to the grantee until a plan of such land showing all the portions or lots into which it has been subdivided and the corresponding technical descriptions shall have been verified and approved pursuant to Section 50 of this Decree. Meanwhile, such deed may only be annotated by way of memorandum upon the grantor's certificate of title, original and duplicate, said memorandum to serve as a notice to third persons of the fact that certain unsegregated portion of the land described therein has been conveyed, and every certificate with such memorandum shall be effectual for the purpose of showing the grantee's title to the portion conveyed to him, pending the actual issuance of the corresponding certificate in his name. Upon the approval of the plan and technical descriptions, the original of the plan, together with a certified copy of the technical descriptions shall be filed with the Register of Deeds for annotation in the corresponding certificate of title and thereupon said officer shall issue a new certificate of title to the grantee for the portion conveyed, and at the same time cancel the grantor's certificate partially with respect only to said portion conveyed, or, if the grantor so desires, his certificate may be canceled totally and a new one issued to him describing therein the remaining portion: Provided, however, that pending approval of said plan, no further registration or annotation of any subsequent deed or other voluntary instrument involving the unsegregated portion conveyed shall be effected by the Register of Deeds, except where such unsegregated portion was purchased from the Government or any of its instrumentalities. If the land has been subdivided into several lots, designated by numbers or letters, the Register of Deeds may, if desired by the grantor, instead of canceling the latter's certificate and issuing a new one to the same for the remaining unconveyed lots, enter on said certificate and on its owner's duplicate a memorandum of such
deed of conveyance and of the issuance of the transfer certificate to the grantee for the lot or lots thus conveyed, and that the grantor's certificate is canceled as to such lot or lots. PD 1529 Sec 59. Carry over of encumbrances. If, at the time of any transfer, subsisting encumbrances or annotations appear in the registration book, they shall be carried over and stated in the new certificate or certificates; except so far as they may be simultaneously released or discharged.
A. IF ENTIRE PROPERTY IS SUBJECT Owner executes and registers the deed which must be sufficient in form. A new certificate of title is issued and Register of Deeds prepares and delivers to grantee his owner's duplicate certificate Register of Deeds notes upon the OCT and the duplicate certificate the date of transfer, the volume and page of the registration book where the new certificate is registered The original and the owner's duplicate of the grantor's certificate shall be stamped "canceled". The deed of conveyance shall be filed and indorsed with the number and the place of registration of the certificate of title of the land conveyed. B. IF ONLY A PORTION OF PROPERTY IS SUBJECT Include a plan which shows all the portions already subdivided with verified and approved technical descriptions. That plan with the certified copy of the technical descriptions shall be filed with the Register of Deeds for annotation in the TCT. Register of Deeds hall issue a TCT and cancel the grantor's certificate partially OR it may be canceled totally and a new one issued describing therein the remaining portion C. IF THERE ARE SUBSISTING ENCUMBRANCES AND ANNOTATIONS They shall be carried over in the new certificate or certificates; except when they have been simultaneously discharged.
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VI. MORTGAGES AND LEASES

PD 1529 Sec 60. Mortgage or lease of registered land. Mortgage and leases shall be registered in the manner provided in Section 54 of this Decree. The owner of registered land may mortgage or lease it by executing the deed in a form sufficient in law. Such deed of mortgage or lease and all instruments which assign, extend, discharge or otherwise deal with the mortgage or lease shall be registered, and shall take effect upon the title only from time of registration. No mortgagee's or lessee's duplicate certificate of title shall hereafter be issued by the Registers of Deeds, and those issued prior to the effectivity of this Decree are hereby deemed canceled and the holders thereof shall immediately surrender the same to the Register of Deeds concerned. PD 1529 Sec 61. Registration. Upon presentation for registration of the deed of mortgage or lease together with the owner's duplicate, the Register of Deeds shall enter upon the original of the certificate of title and also upon the owner's duplicate certificate a memorandum thereof, the date and time of filing and the file number assigned to the deed, and shall sign the said memorandum. He shall also note on the deed the date and time of filing and a reference to the volume and page of the registration book in which it is registered
other equitable interest shall not be entered on the certificate; but only a memorandum thereof shall be entered by the words "in trust", or "upon condition", or other apt words, and by a reference by number to the instrument authorizing or creating the same. A similar memorandum shall be made upon the original instrument creating or declaring the trust or other equitable interest with a reference by number to the certificate of title to which it relates and to the volume and page in the registration book in which it is registered. PD 1529 Sec 66. Trust with power of sale, etc., how expressed. If the instrument creating or declaring a trust or other equitable interest contains an express power to sell, mortgage or deal with the land in any manner, such power shall be stated in the certificate of title by the words "with power to sell", or "power to mortgage", or by apt words of description in case of other powers. No instrument which transfers, mortgages or in any way deals with registered land in trust shall be registered, unless the enabling power thereto is expressly conferred in the trust instrument, or unless a final judgment or order of a court of competent jurisdiction has construed the instrument in favor of the power, in which case a certified copy of such judgment or order may be registered. PD 1529 Sec 68. Implied, trusts, how established. Whoever claims an interest in registered land by reason of any implied or constructive trust shall file for registration with the Register of Deeds a sworn statement thereof containing a description of the land, the name of the registered owner and a reference to the number of the certificate of title. Such claim shall not affect the title of a purchaser for value and in good faith before its registration.
Mortgage and leases shall be registered in the manner provided for in Section 54. When a deed of mortgage or lease is presented, ROD will enter upon the OCT and upon the owners duplicate a memorandum thereof and shall sign.
VII. POWERS TRUSTS
OF
ATTORNEY;
PD 1529 Sec 64. Power of attorney. Any person may, by power of attorney, convey or otherwise deal with registered land and the same shall be registered with the Register of Deeds of the province or city where the land lies. Any instrument revoking such power of attorney shall be registered in like manner. PD 1529 Sec 65. Trusts in registered land. If a deed or other instrument is filed in order to transfer registered land in trust, or upon any equitable condition or limitation expressed therein, or to create or declare a trust or other equitable interests in such land without transfer, the particulars of the trust, condition, limitation or
Powers of attorney and revocations shall be registered with the Register of Deeds of the province or city where the land lies. To transfer registered land in trust without transfer, the particulars of the trust shall not be entered on the certificate. Only a memorandum shall be entered by the words "in trust", or "upon condition". Power must be expressly conferred in the trust instrument. If implied of constructive trust, person claiming such must execute a sworn statement. But such claim doesnt affect the title of a purchaser for value and in good faith before its registration.
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VIII. INVOLUNTARY DEALINGS

A. ATTACHMENT - a writ issued at the institution or during progress of an action commanding the sheriff to attach the property, rights, credits or effects of the defendant to satisfy demands of the plaintiff Kinds: a. Preliminary b. Garnishment c. Levy on execution
PD 1529 Sec 69. Attachments. An attachment, or a copy of any writ, order or process issued by a court of record, intended to create or preserve any lien, status, right, or attachment upon registered land, shall be filed and registered in the Registry of Deeds for the province or city in which the land lies, and, in addition to the particulars required in such papers for registration, shall contain a reference to the number of the certificate of title to be affected and the registered owner or owners thereof, and also if the attachment, order, process or lien is not claimed on all the land in any certificate of title a description sufficiently accurate for identification of the land or interest intended to be affected. A restraining order, injunction or mandamus issued by the court shall be entered and registered on the certificate of title affected, free of charge.
Court after notice shall enter an order to owner to surrender certificate at time & place to be named therein. d. Although notice of attachment is not noted in duplicate, notation in book of entry of Register of Deeds produces effect of registration already 2. EFFECT OF REGISTRATION OF ATTACHMENT: a. Creates real right b. Has priority over execution sale c. But between 2 attachments d. one that is earlier in registration is preferred 3. DUTY OF REGISTER OF DEEDS Ministerial but may refuse registration in following circumstances: 1. Title to land is not in the name of defendant 2. No evidence is submitted to show that he has present or possible future interest in land Exception: If petitioner is an heir TAX
B. EXECUTION AND DELINQUENCY SALES
1. REGISTRATION OF ATTACHMENT/ OTHER LIENS a. Copy of writ in order to preserve any lien, right or attachment upon registered land may be filed with Register of Deeds where land lies, containing number of certificate of title of land to be affected or description of land b. Register of Deeds to index attachment in names of both plaintiff & defendant or name of person whom property is held or in whose name stands in the records c. If duplicate of certificate of title is not presented: Register of Deeds shall within 36 hours send notice to registered owner by mail stating that there has been registration & requesting him to produce duplicate so that memorandum be made If owner neglects or refuses Register of Deeds shall report matter to court.
1. EXECUTION SALE a. To enforce a lien of any description on registered land, any execution or affidavit to enforce such lien shall be filed with Register of Deeds where land lies b. Register in registration book & memorandum upon proper certificate of title as adverse claim or as an encumbrance c. To determine preferential rights between 2 liens: priority of registration of attachment 2. TAX SALE a. Sale of land for collection of delinquent taxes and penalties due the Government b. In personam (all persons interested shall be notified so that they are given opportunity to be heard) c. Notice to be given to delinquent tax payer at last known address d. Publication of notice must also be made in English, Spanish & local dialect & posted in a public & conspicuous place in place wherein
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property is situated & at main entrance of provincial building e. Sale cannot affect rights of other lien holders unless given right to defend their rights: due process must be strictly observed f. Tax lien superior to attachment g. No need to register tax lien because it is automatically registered once the tax accrues h. But sale of registered land to foreclose a tax lien need to be registered.
PD 1529 Sec 74. Enforcement of liens on registered land. Whenever registered land is solved on execution, or taken or sold for taxes or for any assessment or to enforce a lien of any character, or for any costs and charges incident to such liens, any execution or copy of execution, any officer's return, or any deed, demand, certificate, or affidavit, or other instrument made in the course of the proceedings to enforce such liens and required by law to be recorded, shall be filed with the Register of Deeds of the province or city where the land lies and registered in the registration book, and a memorandum made upon the proper certificate of title in each case as lien or encumbrance.
C. NOTICE OF LIS PENDENS

PD 1529 Sec 76. Notice of lis pendens. No action to recover possession of real estate, or to quiet title thereto, or to remove clouds upon the title thereof, or for partition, or other proceedings of any kind in court directly affecting the title to land or the use or occupation thereof or the buildings thereon, and no judgment, and no proceeding to vacate or reverse any judgment, shall have any effect upon registered land as against persons other than the parties thereto, unless a memorandum or notice stating the institution of such action or proceeding and the court wherein the same is pending, as well as the date of the institution thereof, together with a reference to the number of the certificate of title, and an adequate description of the land affected and the registered owner thereof, shall have been filed and registered. Section 77. Cancellation of lis pendens. Before final judgment, a notice of lis pendens may be canceled upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be registered. It may also be canceled by the Register of Deeds upon verified petition of the party who caused the registration thereof. At any time after final judgment in favor of the defendant, or other disposition of the action such as to terminate finally all rights of the plaintiff in and to the land and/or buildings involved, in any case in which a memorandum or notice of lis pendens has been registered as provided in the preceding section, the notice of lis pendens shall be deemed canceled upon the registration of a certificate of the clerk of court in which the action or proceeding was pending stating the manner of disposal thereof. PD 1529 Sec 77. Cancellation of lis pendens. Before final judgment, a notice of lis pendens may be canceled upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the party who caused it to be registered. It may also be canceled by the Register of Deeds upon verified petition of the party who caused the registration thereof. At any time after final judgment in favor of the defendant, or other disposition of the action such as to terminate finally all rights of the plaintiff in and to the land and/or buildings involved, in any case in which a memorandum or notice of lis pendens has been registered as provided in the preceding section, the notice of lis pendens shall be deemed canceled upon the registration of a certificate of the clerk of court in
3. PROCEDURE OF REGISTRATION OF TAX SALE a. Officers return shall be submitted to Register of Deeds together with duplicate title b. Register in registration book c. Memorandum shall be entered in certificate as an adverse claim or encumbrance d. After period of redemption has expired & no redemption (2 years from registration of auction sale) cancellation of title & issuance of new one e. Before cancellation, notice shall be sent to registered owner: to surrender title & f. show cause why it shall not be cancelled NOTE: Actual knowledge is equivalent to registration.
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which the action or proceeding was pending stating the manner of disposal thereof.
D. ADVERSE CLAIM
Section 70. Adverse claim. Whoever claims any part or interest in registered land adverse to the registered owner, arising subsequent to the date of the original registration, may, if no other provision is made in this Decree for registering the same, make a statement in writing setting forth fully his alleged right or interest, and how or under whom acquired, a reference to the number of the certificate of title of the registered owner, the name of the registered owner, and a description of the land in which the right or interest is claimed.
1. PURPOSE: Keep subject matter within the power of the court until the entry of final judgment. It therefore creates merely a contingency & not a lien. 2. EFFECT OF REGISTRATION a. Impossibility of alienating the property in dispute during the pendency of the suit may be alienated but purchaser is subject to final outcome of pending suit b. Register of Deeds duty bound to carry over notice of lis pendens on all new titles to be issued 3. CANCELLATION OF LIS PENDENS a. Before final judgment court may order cancellation after showing that notice if only for purpose of molesting an adverse party or it is not necessary to protect rights of party who caused it to be registered b. Register of Deeds may also cancel by verified petition of party who caused such registration c. Deemed cancelled when certificate of clerk of court stating manner of disposal of proceeding is registered 3. OTHER PARTIES WHO NEED TO REGISTER a. Assignee in involuntary proceeding for insolvency o Duty of the officer serving notice to file copy of notice to Register of Deeds where the property of debtor lies o Assignee elected or appointed by court shall be entitled to entry of new certificate of registered land upon presentment of copy of assignment with bankrupts certificate of title (duplicate) o New certificate shall not that it is entered to him as assignee or trustee in insolvency proceedings b. Government in eminent domain o Copy of judgment file in Register of Deeds which states description of property, certificate number, interest expropriated, nature of public use o Memorandum shall be made or new certificate of title shall be issued
The statement shall be signed and sworn to, and shall state the adverse claimant's residence, and a place at which all notices may be served upon him. This statement shall be entitled to registration as an adverse claim on the certificate of title. The adverse claim shall be effective for a period of thirty days from the date of registration. After the lapse of said period, the annotation of adverse claim may be canceled upon filing of a verified petition therefor by the party in interest: Provided, however, that after cancellation, no second adverse claim based on the same ground shall be registered by the same claimant. Before the lapse of thirty days aforesaid, any party in interest may file a petition in the Court of First Instance where the land is situated for the cancellation of the adverse claim, and the court shall grant a speedy hearing upon the question of the validity of such adverse claim, and shall render judgment as may be just and equitable. If the adverse claim is adjudged to be invalid, the registration thereof shall be ordered canceled. If, in any case, the court, after notice and hearing, shall find that the adverse claim thus registered was frivolous, it may fine the claimant in an amount not less than one thousand pesos nor more than five thousand pesos, in its discretion. Before the lapse of thirty days, the claimant may withdraw his adverse claim by filing with the Register of Deeds a sworn petition to that effect.
1. WHEN IS A CLAIM ADVERSE? When a person claims any part or interest in registered land adverse to the registered owner, after date of the original registration. 2. DURATION OF AN ADVERSE CLAIM 30 days from the date of registration. After that the annotation of adverse claim may be cancelled upon filing of a verified petition by the party in interest. When cancelled no second adverse claim based on the same ground may be registered by the same claimant. (Asked in 98)
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3. REQUISITES The adverse claimant must give a statement signed and sworn before a notary public, the ff in writing: a. his alleged right or interest b. how and under whom such alleged right or interest is acquired c. the description of the land in which the right or interest is claimed and d. the number of the certificate of title e. his residence or the place to which all notices may be served upon him. NOTE: Non-compliance with the above requisites renders the adverse claim nonregistrable and ineffective.
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Chapter VI. System of Registration of Unregistered Lands
Chapter 6: System of Registration of Unregistered Lands

This 6th chapter will discuss the process of registration of unregistered lands. There are TWO MAJOR LESSON is included in this Chapter. I. Key Points in the Registration Unregistered Lands II. Procedure in the Registration Unregistered Lands of of
I. KEY POINTS
A. The system of registration for unregistered land is under the torrens system. B. Before: covers voluntary dealings, now includes involuntary dealings C. Effect if prospective; binds 3rd persons after registration but yields to better rights of 3rd person prior to registration (limited effect to 3rd parties) reason: no strict investigation involved D. Subsequent dealings also valid if recorded E. Register of deeds keeps day book & a register; index system is also kept
PD 1529 Sec 113. Recording of instruments relating to unregistered lands. No deed, conveyance, mortgage, lease, or other voluntary instrument affecting land not registered under the Torrens system shall be valid, except as between the parties thereto, unless such instrument shall have been recorded in the manner herein prescribed in the office of the Register of Deeds for the province or city where the land lies. (a) The Register of Deeds for each province or city shall keep a Primary Entry Book and a Registration Book. The Primary Entry Book shall contain, among other particulars, the entry number, the names of the parties, the nature of the document, the date, hour and minute it was presented and received. The recording of the deed and other instruments relating to unregistered lands shall be effected by any of annotation on the space provided therefor in the Registration Book, after the same shall have been entered in the Primary Entry Book. (b) If, on the face of the instrument, it appears that it is sufficient in law, the Register of Deeds shall forthwith record the instrument in the manner provided herein. In case the Register of Deeds refuses its administration to record, said official shall advise the party in interest in writing of the ground or grounds for his refusal, and the latter may appeal the matter to the Commissioner of Land Registration in accordance with the provisions of Section 117 of this Decree. It shall be understood that any recording made under this section shall be without prejudice to a third party with a better right. (c) After recording on the Record Book, the Register of Deeds shall endorse among other things, upon the original of the recorded instruments, the file number and the date as well as the hour and minute when the document was received for recording as shown in the Primary Entry Book, returning to the registrant or person in interest the duplicate of the instrument, with appropriate annotation, certifying that he has recorded the instrument after reserving one copy thereof to be furnished the provincial or city assessor as required by existing law. (d) Tax sale, attachment and levy, notice of lis pendens, adverse claim and other instruments in the nature of involuntary dealings with respect to unregistered lands, if made in the form sufficient in law, shall likewise be admissible to record under this section. (e) For the services to be rendered by the Register of Deeds under this section, he shall collect the same amount of fees prescribed for similar services for the registration of deeds or instruments concerning registered lands.
II. PROCEDURE
A. Presentment of instrument dealing in unregistered land B. If found in order registered C. If found defective registration is refused writing his reason for refusal
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Chapter VII. Registration of Public Lands
Chapter 7: Registration of Public Lands

This 7th Chapter will discuss the process of registration of public lands. It includes also the different modes of alienating public lands. There are SIX MAJOR LESSONS in this chapter: I. Classification of Land of the Public Domain II. Nature of Public Lands III. Procedure IV. Role of Director of Lands V. Modes of Alienating Public Lands VI. Patents
fishponds does not change character of land. Now: restricted meaning; fishponds has distinct category; cannot be alienated but maybe leased from government Republic vs. Imperial, (2000): The classification of public lands is a function of the executive branch of government.
PUBLIC LANDS
I. CLASSIFICATION OF LAND OF THE PUBLIC DOMAIN

A. UNDER THE CONSTITUTION 1. Agricultural- only type of land that is alienable 2. Forest or timber 3. Mineral lands 4. National Park B. UNDER THE PUBLIC LAND ACT 1. Alienable/disposable a. Agricultural b. Residential, commercial, industrial c. Educational, charitable d. Town sites and for public and quasipublic uses 2. Timber lands inalienable 3. Mineral lands inalienable NOTE: If patent of title is issued for inalienable lands, such patent or title is void ab initio Not subject to acquisitive prescription; even if in possession for long time, will not ripen into ownership. EXCEPT: mineral lands and forest lands acquired before inauguration of Commonwealth in November 15, 1935; vested rights which are protected is exclusive prerogative of executive & not by judiciary Anyone who applies for confirmation of imperfect title has burden of proof to overcome the presumption that the land sought to be registered forms part of public domain (Regalian doctrine) Before, fishponds are included in the definition of agriculture, conversion of agricultural land to
Inalienable
Alienable
Lands of the Public Domain
Public Agricultural Land
II. NATURE OF TITLE TO PUBLIC LANDS CONVEYED

Indefeasible and Conclusive In absence of registration, title to public land is not perfected and therefore not Indefeasible In case of 2 titles obtained on same date, the one procured through the decree of registration is superior than patent issued by director of lands 2 titles procured by one person one from homestead patent, one from judicial decree & sold to 2 different persons, the one who bought it for value and in good faith & one who register first shall have preference
III.PROCEDURE OF PUBLIC LAND TO PERSON
CONVEYING A PRIVATE
A. Official issuing instrument of conveyance to issue instrument B. File instrument with Register of Deeds C. Instrument to be entered in books and owners duplicate to be issued D. Instrument only contract between Government and private person and does not take effect as conveyance if unregistered, it is registration which is operative act of conveying land; evidence of authority for Register of Deeds to register E. Fees to be paid by grantee
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Chapter VII. Registration of Public Lands
F. After issuance of certificate of title, land is deemed registered land within the purview of the Torrens system
IV. DIRECTOR OF LANDS JUDICIAL OFFICER

A.
QUASI-
EXCEPT: Annullable on ground of fraud, may be reopened even after 1 year because registration does not shield bad faith 3. Court in exercise of equity jurisdiction may direct reconveyance even without ordering cancellation of title
B.
Findings of fact conclusive on higher court with absence of fraud, mistake other than error of judgment; but not with regards to finding of law. Empowered to alienate and dispose lands.
V. MODES OF ALIENATING PUBLIC LANDS:

A. Homestead settlement B. Sale C. Confirmation of Imperfect or incomplete title, supra. 1. Judicial legalization 2. Administrative legalization NOTE: Lease is not included since lease does not transfer ownership Free-title grant: free distribution of public lands to encourage people to cultivate: government furnishes the applicant with tolls plus cash allowance to enable him to cultivate
C. AIM OF HOMESTEAD PATENT 1. Benevolent intention of government to distribute disposable agricultural land to destitute citizens for their home and cultivation 2. As a matter of public policy, may be repurchased even if after 5 years provided not for profit 3. Right of repurchase not allowed if sold within family & not for cultivating or living but for speculation purpose D. RESTRICTIONS 1. Cannot be alienated within 5 years after approval of application for patent 2. Cannot be liable for satisfaction of debt within 5 years after approval of patent application 3. Subject to repurchase of heirs within 5 years after alienation when allowed already 4. No corporation, partnership, association may acquire unless solely for commercial, industrial, educational, religious or charitable purpose or right of way subject to consent of grantee & approval of Secretary of Natural resources
EXCEPTIONS: 1. Action for partition because it is not a conveyance 2. Alienations or encumbrances made in favor of the government NOTE: Erring homesteader not barred by pari delicto Pari delicto rule does not apply in void contract Violation of prohibitions results in void contract Action to recover does not prescribe If the homesteader dies, heirs succeed him in this application Legal restriction in disposition by nonChristians (Cultural Minorities) Conveyance is valid if able to read and can understand language where deed is written Otherwise, not valid unless approved by Commission on National Integration Safeguard is to protect them against fraud/deceit
VI. PATENTS
A. WHEN IS GOVERNMENT GRANT DEEMED ACQUIRED BY OPERATION OF LAW 1. Deed of conveyance issued by government patent/grant 2. Registered with Register of Deeds mandatory: operative act to convey & transfer title 3. Actual physical possession, open & continuous
NOTE: Land ceased to be part of public domain & now ownership vests to the grantee Any further grant by Government on same land is null & void Upon registration, title is indefeasible
B. TITLE ISSUED PURSUANT TO REGISTRATION OF PATENT 1. Indefeasible when registered, deemed incorporated with Torrens system; 1 year after issuance of patent 2. May not be opened one year after entry by Land Registration Authority; otherwise, confusion, uncertainty & confusion on government system, of distribution of public lands may arise & this must be avoided
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Chapter VIII. Remedies of the Aggrieved Party
Chapter 8: Remedies of the Aggrieved Party

The remedies listed here are: I. Motion For New Trial II. Appeal III. Relief from Judgment IV. Petition for Review V. Action for Reconveyance VI. Damages VII. Action for Compensation from the Assurance Fund VIII. Annulment of Judgment IX. Reversion X. Criminal Action Motion for New Trial 15 days from notice of judgment Grounds: Fraud, accident, mistake, excusable negligence Newly discovered evidence Awarded excessive damages, or insufficiency of evidence, or that the decision is against law 15 days from notice appealable to the CA or to the SC in the same manner as in ordinary actions 60 days after petitioner learns of judgment, but not more than 6 months after judgment was entered Grounds: Fraud, accident, mistake, excusable negligence Requisites: Walstrom vs. Mapa,, (1990): petitioner must have an estate or interest in the land he must show actual fraud petition must be filed within one year form the issuance of the decree by LRA property has not yet passed to an innocent purchaser for value. Grounds: extrinsic fraud, void decision for want of due process lack of jurisdiction Calalang vs. Register of Deeds (1992): Under the Torrens system of registration, the Torrens still becomes indefeasible and incontrovertible one year form the issuance of the final decree and is generally conclusive evidence of the ownership Iglesia ni Cristo vs. CFI, (1983): This applies as well to title acquired through homestead or free patents before issuance of decree, or within/after 1 year from entry if based on implied trust, 10 years; if based on expressed trust and void contract, imprescriptible if based on fraud, 4 years from the discovery it is not available if the property has already been transferred to an innocent purchaser for value. Esconde vs. Barlongay, (1987): It does not reopen proceedings but a mere transfer of the land from registered owner to the rightful owner Huang vs. CA,1994: It is available in case of fraud thereby creating a constructive trust between parties Ching vs. CA, 1990: It can be availed of when reconveyance is no longer possible as when the land has been transferred to an innocent purchaser for value
Appeal
Relief from Judgment
Petition for Review
Action for Reconveyance
Damages
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Chapter VIII. Remedies of the Aggrieved Party
Action for Compensation from the Assurance Fund1
Annulment of Judgment
Reversion
Criminal Action
Requisites: A person sustains loss or damage or is deprived by any estate or interest in land On account of bringing of land under the Torrens system Through (FEMOM) fraud, error, mistake, omission, or misdescription in the certificate of entry in the registration book Without negligence on his part And is barred from bringing an action for recovery of the land. The action has not prescribed. It must be instituted within 6 years from the time the right to bring such action first occurred--> date of issue of the certificate of title Against whom filed: against the Register of Deeds and the National Treasurer if FEMOM is caused by court personnel, Register of Deeds, his deputy or other employees of the Registry If other those above mentioned: the Register of Deeds, the National Treasurer and other person or persons, as co-defendants. Grounds: extrinsic fraud and lack of jurisdiction. Galicia vs. Marquez (2007): Ordinary remedies of appeal, motion for new trial etc should no longer be available. If based on extrinsic fraud, file 4 within years from discovery. If based on lack of jurisdiction, before it is barred by laches or estoppel Instituted by the government, thru Solgen in all cases where lands of public domain are held in violation of the Constitution or were fraudulently conveyed. Indefeasibility of title, prescription, laches, and estoppel do not bar reversion suits. Perjury, Forgery, Others involving fraud
Upon registration, there shall be paid to the Register of Deeds of 1% of the assessed value of the real estate on the basis of the last assessment for taxation purposes, as contribution to the Assurance Fund.
1
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Chapter IX. Reconstitution of Titles
Chapter 9: Reconstitution 0f Titles (Asked in 96)

I. Grounds II. Petitions For Reconstitution III. Duties of the Land Registration Authority IV. Effects of Fraud in the Reconstitution
I. GROUNDS
A. LOSS B. DESTRUCTION
II. PETITIONS FOR RECONSTITUTION

1. 2. 3.
A. WHO MAY FILE? Registered owner His assigns Other persons, both natural and juridical, having an interest in the property
B. WHAT DOES IT CONTAIN? A statement, among other things: 1. That no deed or other instrument affecting the property had been presented for registration. If there is, include its particulars. 2. That the owner's duplicate certificate or co-owner's duplicate is in due form; 3. That the certificate of title is not the subject of litigation or investigation, administrative or judicial, regarding its genuineness or due execution or issuance; 4. That the certificate of title was in full force and effect at the time it was lost or destroyed; 5. That the certificate of title is covered by a tax declaration regularly issued by the Assessor's Office; and 6. That real estate taxes have been fully paid up to at least two (2) years prior to the filing of the petition for reconstitution.
NOTE: The procedure relative to administrative reconstitution of lost or destroyed certificate prescribed in said Act may be availed of only in case of substantial loss or destruction of land titles due to fire, flood or other force majeure as determined by the Administrator of the Land Registration Authority: Provided, that the number of certificates of titles lost/damaged should be at least 10 % of the total number in the possession of the Office of the Register of Deeds, and that the number of certificates of titles lost or damaged be less than 500.
OF THE SAME PERSON IN WHOSE FAVOR THE RECONSTITUTED CERTIFICATE OF TITLE HAS BEEN ISSUED? The ROD or party concerned should notify the proper RTC. After which, shall order the cancellation of the reconstituted certificate of title and render, with respect to the memoranda of new liens and encumbrances, if any, made in the reconstituted certificate of title, after its reconstitution, such judgment as justice and equity may require: Provided, however, That if the reconstituted certificate of title has been cancelled by virtue of any deed or instrument, whether voluntary or involuntary, or by an order of the court, and a new certificate of title has been issued, the procedure prescribed above, with respect to the memorandum of new liens and encumbrances made on the reconstituted certificate of title, after its reconstitution, shall be followed with respect to the new certificate of title, and to such new liens and encumbrances, if any, as may have been on the latter, after the issuance thereof.
III.DUTIES OF THE LAND REGISTRATION AUTHORITY

A. Keep a true, complete and faithful inventory of all books, titles, cash and property of the Register of Deeds. B. Produce three image copies in whatever means the original can be produced. C. Surrender the owners duplicate to ROD and prepare and deliver a new owners duplicate to the registered owner. D. Issue rules and regulations E. Review, revise decisions of the reconstituting officer of the Register of Deeds.
IV. EFFECTS OF FRAUD, DECEIT and MACHINATION in the RECONSTITUTION OF TITLES

A. A reconstituted title obtained by means of fraud, deceit or other machination is void ab initio as against the party obtaining the same and all persons having knowledge thereof. B. Any person who by means of fraud, deceit or other machination obtains or attempts to obtain a reconstituted title shall be subject to criminal prosecution C. Any public officer or employee who knowingly approves or assists in securing a decision allowing reconstitution in favor of any person not entitled thereto shall be subject to criminal prosecution.
- end of Land titles and Deeds -
C. WHAT IF IT IS SUBSEQUENTLY FOUND BUT IT IS NOT IN THE NAME
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Table of Contents
TORTS and DAMAGES

Chapter I. Introduction, Definitions A. Tort and Quasi-Delict B. Damages Chapter II. Concept of Quasi-Delict A. Elements B. Distinguished Chapter III. Negligence A. Concept of Negligence 1. Definition; Elements 2. Standard of Conduct B. Degrees of Negligence C. Proof of Negligence 1. Burden of Proof 2. Presumptions 3. Res Ipsa Loquitur D. Defenses 1. Plaintiff's Negligence 2. Contributory Negligence 3. Fortuitous Event 4. Assumption of Risk 5. Due Diligence 6. Prescription 7. Double Recovery Chapter IV. Causation A. Proximate Cause 1. Definition 2. Distinguished from Other Kinds 3. Tests to Determine the Proximate Cause 4. Efficient Intervening Cause 5. Last Clear Chance Chapter V. Strict Liability A. Possessor of Animals B. Things Thrown or Falling from a Building C. Death/Injuries in the Course of Employment D. Product Liability E. Inference with Contractual Relations F. Liability of Local Government Units Chapter VI. Persons Liable A. The Tortfeasor B. Vicarious Liability 1. Parents 2. Guardians 3. Teachers and Heads Institutions 4. Owners and Managers Establishments 5. Employers 6. State 123 123 123 124 124 124 126 126 126 126 127 127 127 127 128 128 128 128 128 129 129 129 129 130 130 130 130 130 131 131 132 132 132 132 132 133 133 136 136 136 136 137 of 138 of 138 138 138 Chapter VII. Torts with Independent Civil Action A. Violation of Civil and Political Rights B. Defamation, Fraud, Physical Injuries 1. Defamation 2. Fraud 3. Physical Injuries C. Neglect of Duty D. Action for damages Where No Independent Civil Action is Provided Chapter VIII. Intentional Torts A. Abuse of Rights B. Acts Contra Bonus Mores 1. Elements 2. Examples Other Torts C. Dereliction of Duty D. Unfair Competition E. Violation of Human Dignity Chapter IX. Damages A. Definition and Concept B. Kinds of Damages 1. Actual/Compensatory Damages 2. Moral Damages 3. Nominal Damages 4. Temperate/Moderate Damages 5. Liquidated Damages 6. Exemplary/Corrective Damages 140 140 140 141 141 141 142 142 143 143 143 143 143 144 144 144
TORTS AND DAMAGES
145 145 145 145 149 153 154 154 154
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Chapter I. Introduction, Definitions
Torts and Damages

FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE Prof. Rommel Casis
FACULTY EDITOR

SUBJECT EDITORS
LECTURES Edel Cruz

HEAD

-------Kae Guerrero
TORTS AND DAMAGES Edda Sastine Joanna Orbe

LEAD WRITERS
Rania Joya
-------Leo Zulueta
Chapter I. Introduction, Definitions

A. TORT AND QUASI-DELICT B. DAMAGES
act causing damages may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extracontractual. Elcano vs. Hill (1977): Article 2176, where it refers to "fault or negligence, covers not only acts "not punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. [There is also the other view which states otherwise. To make it balanced you should include the other view]
A. TORT AND QUASI-DELICT 1. Tort

Essentially, "tort" consists in the violation of a right given or the omission of a duty imposed by law. Tort is a breach of a legal duty. (Naguiat vs. NLRC, 1997) A tort is civil wrong, other than breach of contract, for which a court of law will afford a remedy in the form of an action for damages. [Prosser, Handbook of the Law of Torts]
TORTS AND DAMAGES
B. DAMAGES 1. Damage, Damages, Injury

Custodio v. CA (1996): (Damage vs. Injury) Injury is the illegal invasion of a legal right. Damage is the loss, hurt, or harm which results from the injury. Damages are the recompense or compensation awarded for the damage suffered. People vs. Ballesteros (1998): Damages may be defined as the pecuniary compensation, recompense or satisfaction for an injury sustained or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right.
Elements: 1. A legal duty 2. Breach 3. Causation 4. Damage
2. Quasi-Delict
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of the Civil Code Chapter on quasi-delicts.
Barredo vs. Garcia (1952): A quasi-delict or "culpa aquiliana" is a separate legal institution under the Civil Code, entirely independent from a delict or crime. A concurrence of scope in regard to negligent acts does not destroy the distinction between the civil liability arising from a crime and the responsibility for cuasi- delitos or culpa extra-contractual. The same negligent
2. Damnum Absque Injuria

Custodio vs. CA (1996): To warrant damages there must be a right of action for a legal wrong inflicted by the defendant and damage resulting to plaintiff. Mere fact that plaintiff suffered loss does not give rise to a right to recover damages. Proper exercise of a lawful right cannot constitute a legal wrong.
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Chapter II. Concept of Quasi-Delict

A. ELEMENTS B. DISTINGUISHED 1. QUASI-DELICT VS. DELICT 2. QUASI-DELICT VS. BREACH OF CONTRACT
due diligence of a good father of a family
resources must first be exhausted
(Barredo vs. Garcia) Padilla vs. CA (1997): The extinction of the civil action by reason of acquittal in the criminal case refers exclusively to civil liability ex delicto founded on Article 100 of the Revised Penal Code. The same punishable act or omission can create two kinds of civil liabilities against the accused and, where provided by law, his employer. Civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt. However, the offended party cannot recover damages under both types of liability. (Asked in the 1990 and 2003 bar exams) 2. Quasi-Delict vs. Breach of Contract Cangco vs. Manila Railroad (1918): The field of non- contractual obligation is much broader than that of contractual obligations. These two fields are concentric: the mere fact that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such conditions that the same act constitutes the source of an extra-contractual obligation, had no contract existed between the parties. Air France vs. Carrascoso (1966): The act that breaks the contract of carriage may also be a tort. Far East v. CA (1995): The doctrine that a quasi-delict can be the cause for breaching a contract that might thereby permit the application of applicable principles on tort even where there is a pre-existing contract between the plaintiff and the defendant can aptly govern only where the act or omission complained of would constitute an actionable tort independently of the contract. Where, without a pre-existing contract between two parties, an act or omission can nonetheless amount to an actionable tort by itself, the fact that the parties are contractually bound is no bar to the application of quasi-delict provisions.
A. ELEMENTS
1. Act or omission 2. Damage or injury is caused to another 3. Fault or negligence is present 4. There is no pre-existing contractual relations between the parties1 5. Causal connection between damage done and act/omission. (Art. 2176) In order that liability under Article 2176 of the Civil Code will arise the following requisites must exist: (a) There must be damage or prejudice which must be proven by the party claiming it; (b) There must be an unlawful act or omission amounting to fault or negligence; and (c) There must be a direct causal connection between the damage or prejudice and the act or omission. (Manresa; Taylor vs. Manila Electric Co.; Jarencio, Torts and Damages) [Item 1 and 3 is really one element. Item 4 is not necessarily an element. There are cases where the existence of a contract does not mean that a quasi-delict cannot exist]
TORTS AND DAMAGES
B. DISTINGUISHED
1. Quasi-Delict vs. Delict
Quasi-Delict private concern CC repairs the damage by indemnification includes all acts in which "any kind of fault or negligence intervenes." solidary liability of employer ERs defense is that accused observed
1
Delict public interest RPC punishes and corrects the act Punishes only when there is a penal law covering the act Subsidiary liability of employer ERs defense is that employees
However, the court has held that there can be a tort even where there is a pre-existing contract between the parties. (Far East vs. CA, infra)
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Vinculum Juris
CONTRACT Contract
QUASI DELICT Negligent act/ omission (culpa, imprudence)
Proof Needed Defense available
Preponderance of evidence Exercise of extraordinary diligence (in contract of carriage), Force Majeure There is pre-existing contract Contractual party. Prove the ff: 1. existence of a contract 2. breach
Preponderance of evidence Exercise of diligence of good father of a family in the selection and supervision of employees No pre-existing contract [not necessarily] Victim. Prove the ff.: 1. damage 2.negligence 3. causal connection between negligence and damage done
DELICT Act committed by means of dolo (deliberate, malicious, in bad faith) Proof beyond reasonable doubt
Pre-existing contract Burden of proof
No pre-existing contract Prosecution. Accused is presumed innocent until the contrary is proved.
(Asked in the 2003 bar exams)
TORTS AND DAMAGES
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Chapter III. Negligence

A. CONCEPT OF NEGLIGENCE 1. DEFINITION; ELEMENTS 2. STANDARD OF CONDUCT i. SPECIAL CASES a. CHILDREN b. EXPERTS/PROFESSIONALS c. INSANITY ii. EMERGENCY RULE B. DEGREES OF NEGLIGENCE C. PROOF OF NEGLIGENCE 1. BURDEN OF PROOF 2. PRESUMPTIONS 3. RES IPSA LOQUITUR D. DEFENSES 1. PLAINTIFF'S NEGLIGENCE 2. CONTRIBUTORY NEGLIGENCE 3. FORTUITOUS EVENT 4. ASSUMPTION OF RISK 5. DUE DILIGENCE 6. PRESCRIPTION 7. DOUBLE RECOVERY
2. Standard of Conduct
Picart vs. Smith (1918): Test: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent man would have used in the same situation? If not, then he is negligent. Negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him, but is determined in the light of human experience the facts involved in the particular case.
i. Special cases
a. Children Taylor vs. Manila Railroad (1910) Children must be expected to act upon childlike instincts and impulses and others chargeable with a duty of care and caution toward them must take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to play with, they should expect that liberty to be taken. (But the child in this case was still negligent because of his experience). Jarco v. CA (1999): The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. The presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one. Ylarde vs. Aquino (1988): The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself . A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience: that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circumstances.
A. CONCEPT OF NEGLIGENCE 1. Definition; Elements

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required.
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Elements: 1. Legal duty 2. Breach 3. Causation 4. Damage [What is the legal basis for this?] Layugan vs. IAC (1988): Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.
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b. Experts/Professionals Culion vs. Philippine(1930): When a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. Cruz vs. CA (1997): Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. c. Insanity
Art. 2180. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company Art. 2182. If the minor or insane person causing damage has no parents or guardian, the minor or insane person shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed.
B. DEGREES OF NEGLIGENCE
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.
Amedo vs Rio (1952): Gross negligence is a want of even a slight care or diligence; an entire want of care that raises the presumption that the person at fault is conscious of the probable consequence thereof, and is indifferent or worse, to the danger or injury to persons or property. Marinduque vs. Workmen's (1956): "Notorious" negligence, is the same thing as "gross" negligence: pursuing a course of conduct which would naturally and probably result in injury, or utter disregard of consequences. Benguet vs. CA (1999): Acting or omitting to act in a situation where there is duty to act, not inadvertently but willfully and intentionally, with a conscious indifference to consequences in so far as other persons may be affected.
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C. PROOF OF NEGLIGENCE 1. Burden of Proof (ROC)

Rule 131, Sec. 3(c and d) (c) That a person intends the ordinary consequences of his voluntary act;
US vs. Baggay (1911): A lunatic or insane person who, in spite of his irresponsibility on account of the deplorable condition of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts.
(d) That a person takes ordinary care of his concerns:
2. Presumptions
Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of due diligence, prevented the misfortune. It is disputable presumed that the driver was negligent, if he had been found guilty of reckless driving or violating traffic regulations at least twice within the next preceding two months. Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. Art. 2188. There is prima facie presumption of negligence if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the use or possession thereof is
ii. Emergency Rule

Valenzuela vs. CA (1996): An individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence.
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Art.
indispensable in his occupation or business. 1735. In all cases other than those mentioned in Nos. 1, 2, 3, 4, and 5 of the preceding article (calamity, act of public enemy in war, act of owner of the goods, character of the goods, order of competent public authority), if the goods are lost destroyed or deteriorated, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as required under Art. 1733.
D. DEFENSES 1. Plaintiffs Negligence

Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.
3. Res Ipsa Loquitur

Layugan vs. IAC 1988): Res ipsa loquitur (The thing speaks for itself): Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. Ramos vs. CA (1999): The injury itself, taken together with the circumstances raises the presumption of negligence that the defendant must meet with an explanation. Elements: 1. The accident is such that it would not have happened in the ordinary course of events without the negligence of someone; 2. The defendant exercises control and management. 3. There is no contributory negligence on the part of the plaintiff. DM Consunji vs. CA (2001): The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. (NOTE: For the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident.)
Manila Electric vs. Remonquillo (1956): Even if Manila Electric is negligent, in order that it may be held liable, its negligence must be the proximate and direct cause of the accident. Bernardo vs. Legaspi (1914): Both of the parties contributed to the proximate cause; hence, they cannot recover from one another.
2. Contributory Negligence
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Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.
Genobiagon vs. CA (1989): The alleged contributory negligence of the victim, if any, does not exonerate the accused in criminal cases committed through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence. Rakes vs. Atlantic (1907): If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause. (Supreme Court in this case cited numerous foreign precedents, mostly leaning towards the doctrine that contributory negligence on the part of the plaintiff did not exonerate defendant from liability, but it led to the reduction of damages awarded to the plantiff.) 3. Fortuitous Event
Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be seen responsible for those events which, could not foreseen, or which, though foreseen, were inevitable.
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Juntilla vs. Fontanar (1985): The elements of caso fortuito are: 1. the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; 2. It must be impossible to foresee the event or if it can be foreseen, it must be impossible to avoid; 3. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; 4. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor. Hernandez vs. COA (1984): The robbery that happened to him cannot be said to be the result of his imprudence and negligence. This was undoubtedly a fortuitous event covered by the said provisions, something that could not have been reasonably foreseen although it could have happened.
breach or as may be warranted to ensure the performance of acts indispensable to the business of and beneficial to their employer.
6. Prescription
4 years for QD 1 year for defamation
Kramer vs. CA (1989): It is clear that the prescriptive period must be counted from the time of the commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises. Allied Banking vs. CA (1989): Relations Back Doctrine (footnote 17 of Allied Banking case): That principle of law by which an act done at one time is considered by a fiction of law to have been done at some antecedent period.
7. Double Recovery
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4. Assumption of Risk
Afialda vs. Hisole (1958): It is the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. It was a risk he voluntarily assumed. Exception: Ilocos Norte vs. CA (1989): A person is excused from the force of the rule (volenti non fit injuria), that when he voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to exist or if the life or property of another is in peril or when he seeks to rescue his endangered property.
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.
Padua vs. Robles (1975): In the case at bar, the Court finds it immaterial that the Paduas chose, in the first instance, an action for recovery of damages based on culpa aquiliana under articles 2176, 2177, and 2180 of the Civil Code, which action proved ineffectual.) Article 2177 of the Civil Code forbids ACTUAL double recovery of damages for the same negligent act or omission.
5. Due Diligence
MMTC vs. CA (1998): Due diligence in the supervision of employees, on the other hand, includes the formulation of suitable rules and regulations for the guidance of employees and the issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and the imposition of necessary disciplinary measures upon employees in case of
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Chapter IV. Causation

A. PROXIMATE CAUSE 1. DEFINITION 2. DISTINGUISHED FROM OTHER KINDS i. REMOTE ii. CONCURRENT 3. TESTS TO DETERMINE THE PROXIMATE CAUSE i. "BUT FOR" ii. SUBSTANTIAL FACTOR 4. EFFICIENT INTERVENING CAUSE 5. LAST CLEAR CHANCE
2. Distinguished from Other Kinds

i. Remote
A. PROXIMATE CAUSE 1. Definition

Bataclan vs. Medina (1960): That acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result. That cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. Pilipinas Bank vs. CA (1994): ...and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary care that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence. (NOTE: Same definition as in the Bataclan case, except that the SC added the element of FORESEEABILITY.) Quezon City vs. Dacara (2005): Proximate cause is determined from the facts of each case, upon a combined consideration of logic, common sense, policy or precedent.
Urbano vs. IAC (1988): A prior and remote cause cannot be made basis for an action if it did nothing more than furnish the condition or give rise to the occasion by which injury was made possible, if there intervened between the remote cause and the injury, a distinct, successive, unrelated and efficient cause, even if it would not have happened but for such condition. If no danger existed except because of an independent cause, such condition was not the proximate cause. If the independent cause sets circumstances into operation resulting in injury because of a prior defective condition, such subsequent act is the proximate cause. ii. Concurrent Far Eastern vs. CA (1998): Where the concurrent or successive acts of 2 or more persons, although done independently, constitute in combination the proximate cause of the injury to the 3rd person, either shall be responsible for the whole injury.
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3. Tests to determine the proximate cause

i. But for
Bataclan vs. Medina (1960): That cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. ii. Substantial Factor Philippine Rabbit vs. IAC (1990): If the actors conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresees nor should have foreseen the harm or the manner in which it occurred, does not prevent him from being liable.
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4. Efficient Intervening Cause

Teague vs. Fernandez (1973): The test is not in the number of intervening causes, but in their character and in the natural and probable connection between the wrong done and the injurious consequence.
5. Last Clear Chance

Picart vs. Smith (1918): The law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences without reference to the prior negligence of the other party. Bustamante vs. CA (1991): The last clear chance doctrine does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. The reason is that it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence. Phoenix vs. IAC (1987): There is no concept of last clear chance under Civil Law. The task of the Court is to determine the proximate cause. The last clear chance doctrine wipes out the fundamental principle of law that a man must respond for the foreseeable consequences of his own negligent act or omission. Pantranco vs. Baesa (1989): Last clear chance applies only if the person who allegedly had the last opportunity to avert the accident was aware of the existence of peril or should, with exercise of due care, have been aware of it. Ong vs. Metropolitan (1958): Last clear chance does not apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered. Consolidated Bank vs. CA (2003): This is a case of culpa contractual where neither contributory negligence nor last clear chance will exonerate defendant from liability. (NOTE: This means that Last Clear Chance is not a defense in culpa contractual.)
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Chapter V. Strict Liability

A. POSSESSOR OF ANIMALS B. THINGS THROWN OR FALLING FROM A BUILDING C. DEATH/INJURIES IN THE COURSE OF EMPLOYMENT D. PRODUCT LIABILITY E. INFERENCE WITH CONTRACTUAL RELATIONS F. LIABILITY OF LOCAL GOVERNMENT UNITS
Dingcong vs. Kanaan (1941): Lessee is considered as the head of the family.
C. DEATH/INJURIES IN COURSE OF EMPLOYMENT
THE
Refers to tort liability that does not depend on actual negligence or intent to harm but that is based on the breach of an absolute duty to make something safe; most often applies to ultra-hazardous activities and products-liability cases; also known as absolute liability, or liability without fault. (Blacks Law Dictionary) What are the types of strict liability tort? A. Damages caused by an animal B. Things thrown or falling from a building C. Death or Injuries in the course of employment D. Product Liability E. Interference with contractual relations F. Liability of Local Government Units
Art 1711: Owners of enterprises and other employers are obliged to pay compensation for the death or injuries ti their laborers, workmen, mechanics or other employees even though the event may be purely accidental or entirely due to a fortuitous cause, if the death or personal injury arose out of and in the course of employment. The employer is also liable for compensation if the employee contracts any illness or disease caused by such employment or as a result of the nature of the employment. If the mishap was due to the employee's own notorious negligence, or voluntary act, or drunkenness, the employer shall not be liable for compensation. When the employee's lack of due care contributed to his death or injury, the compensation shall be equitable reduced. Art. 1712: If the death or injury is due to the negligence of a fellow-worker, the latter and the employer shall be solidarily liable for compensation. If a fellow worker's intentional or malicious act is the only cause of the death or injury, the employer shall not be answerable, unless it should be shown that the latter did not exercise due diligence in the selection or supervision of the plaintiff's fellow worker.
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A. POSSESSOR OF ANIMALS
Art. 2183 (CC). The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the damage should come from force majeure or from the fault of the person who has suffered damage.
Afable vs Singer (1933): The injury must be received while engaged in the furtherance of the affairs of the employer.
D. PRODUCT LIABILITY
Art 2187 (CC). Manufacturers and processors of foodstuffs, drinks, toilet articles and similar goods shall be liable for death or injuries caused by any noxious or harmful substances used, although no contractual relation exists between them and the consumers. Consumer Act Provisions Art. 4. n) "Consumer" means a natural person who is a purchaser, lessee, recipient or prospective purchaser, lessor or recipient of consumer products, services or credit. (as) "Manufacturer" means any person who manufactures, assembles or processes consumer products, except that if the goods are manufactured, assembled or processed for another person who attaches his own brand name to the consumer products, the latter shall be deemed the manufacturer. In case of imported products, the manufacturer's representatives or, in his
Vestil vs. IAC (1989): The obligation imposed by Art. 2183 is not based on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and the principle of social interest that he who possesses animals for his own utility, pleasure or service must answer for the damage which such animals may cause.
B. THINGS THROWN OR FALLING FROM A BUILDING

Art 2193 (CC). The head of a family that lives in a building or a part thereof, is responsible for damages caused by things thrown or falling from the same.
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absence, the importer, shall be deemed the manufacturer. Art. 97. Liability for the Defective Products. Any Filipino or foreign manufacturer, producer, and any importer, shall be liable for redress, independently of fault, for damages caused to consumers by defects resulting from design, manufacture, construction, assembly and erection, formulas and handling and making up, presentation or packing of their products, as well as for the insufficient or inadequate information on the use and hazards thereof. A product is defective when it does not offer the safety rightfully expected of it, taking relevant circumstances into consideration, including but not limited to: a. presentation of product b. use and hazards reasonably expected of it; c. the time it was put into circulation. A product is not considered defective because another better quality product has been placed in the market. The manufacturer, builder, producer or importer shall not be held liable when it evidences: a. that it did not place the product on the market; b. that although it did place the product on the market such product has no defect; c. that the consumer or a third party is solely at fault. Art. 99. Liability for Defective Services. - The service supplier is liable for redress, independently of fault, for damages caused to consumers by defects relating to the rendering of the services, as well as for insufficient or inadequate information on the fruition and hazards thereof. The service is defective when it does not provide the safety the consumer may rightfully expect of it, taking the relevant circumstances into consideration, including but not limited to: a. the manner in which it is provided; b. the result of hazards which may reasonably be expected of it; c. the time when it was provided. A service is not considered defective because of the use or introduction of new techniques. The supplier of the services shall not be held liable when it is proven: a. that there is no defect in the service rendered; b. that the consumer or third party is solely at fault. Art. 106. Prohibition in Contractual Stipulation. - The stipulation in a contract of a clause preventing, exonerating or reducing the obligation to indemnify for damages effected, as provided for in this and in the preceding Articles, is hereby prohibited, if there is
more than one person responsible for the cause of the damage, they shall be jointly liable for the redress established in the pertinent provisions of this Act. However, if the damage is caused by a component or part incorporated in the product or service, its manufacturer, builder or importer and the person who incorporated the component or part are jointly liable.
Coca-Cola v. CA (1993): While it may be true that the pre-existing contract between the parties may, as a general rule, bar the applicability of the law on quasi-delict, the liability may itself be deemed to arise from quasi-delict if the act which breaks the contract is also a quasi-delict.
E. INFERENCE WITH CONTRACTUAL RELATIONS

Art 1314: Any third person who induces another to violate his contract shall be liable for damages to the other contracting party.
Gilchrist vs. Cuddy (1915): Everyone has a right to enjoy the fruits of his enterprise. He has no right to be protected from competition, but he has the right to be free from malicious and wanton interference. If the injury is a result of competition, it is a case of damnum absque injuria, unless superior right by contract is interfered with. So Ping Bun vs. CA (1999): Elements of Interference are: 1. Existence of a valid contract; 2. Knowledge of the existence of such contract; 3. Interference without just cause. Lagon vs. CA (2005): If there in no bad faith, there is no tortious interference; Actual knowledge of the contract is not required so long as there are facts leading one to investigate.
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F. LIABILITY OF GOVERNMENT UNITS
LOCAL
Art 2189: Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.
Guilatco vs Dagupan: It is not necessary that the defective road belongs to the LGU, only that the LGU exercises control and supervision over it.
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QUICK GLANCE
Person Strictly Liable Possessor of an animal or whoever makes use of them even if the animal is lost or escaped Owner of Motor Vehicle For What For the damage it may cause Defenses or Exceptions Force majeure Fault of the person who suffered damage Solidary liability only if the owner was in the vehicle and if he could have prevented it thru due diligence If not in vehicle 2180 Absence on contractual relation NOT a defense possession or use thereof is indispensable in his occupation or business Public works must be under their supervisions
Motor vehicle mishaps
Manufacturers and Processors of foodstuffs, drinks, toilet articles and similar goods (FDTAS) Defendant in possession of dangerous weapons/ substances such as firearms and poison Provinces, Cities and Municipalities
death and injuries caused by any noxious or harmful substances used death or injury results from such possession the death or injuries suffered by any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works total or partial collapse of building or structure if due to lack of necessary repairs explosion of machinery which has not been taken cared of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place by excessive smoke, which may be harmful to persons or property by falling of trees situated at or near highways or lanes, if not caused by force majeure by emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place if damage of building or structure is caused by defect in construction which happens within 15 years from construction; action must be brought within 10 years from collapse
Proprietor of building/ structure
Responsibility for collapse should be due to the lack of necessary repairs
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Engineer, Architect or Contractor
Head of the Family that lives in a building or any part thereof
Liable for damages caused by things thrown or falling from the same
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BAR QUESTION: MOTOR VEHICLE MISHAPS A van owned by Orlando and driven by Diego, while negotiating a downhill slope of a city road, suddenly gained speed, obviously beyond the authorized limit in the area, and bumped a car in front of it, causing severe damage to the car and serious injuries to its passengers. Orlando was not in the car at the time of the incident. The car owner and the injured passengers sued Orlando and Diego for damages cause by Diegos negligence. In their defense, Diego claims that the downhill slope caused the van to gain speed and that, as he stepped on the brakes to check the acceleration, the brakes locked, causing the van to go even faster and eventually to hit the car in front of it. Orlando and Diego contend that the sudden malfunction of the vans brake system is a fortuitous event and that, therefore, they are exempt from any liability. (a) Is this contention tenable? Explain. (b) Explain the concept of vicarious liability in quasi-delicts. (c) Does the presence of the owner inside the vehicle causing damage to a third party affect his liability for his drivers negligence? Explain. Suggested Answer: (a) No. Mechanical defects of a motor vehicle do not constitute fortuitous event, since the presence of such defects would have been readily detected by diligence maintenance check. The failure to maintain the vehicle in safe running condition constitutes negligence. (b) The doctrine of vicarious liability is that which renders a person liable for the negligence of others for whose acts or omission the law makes him responsible on the theory that they are under his control and supervision. (c) In motor vehicle mishaps, the owner is made solidarily liable with his driver if he (the owner) was in the vehicle and could have, by the use of due diligence, prevented the mishap (Caedo vs. Yu Khe Thai, 26 SCRA 410 [1968]). However, this question has no factual basis in the problem given, in view of the express given fact that Orlando was not in the car at the time of the incident.
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Chapter VI. Persons Liable

A. THE TORTFEASOR B. VICARIOUS LIABILITY 1. PARENTS 2. GUARDIANS 3. TEACHERS AND HEADS INSTITUTIONS 4. OWNERS AND MANAGERS ESTABLISHMENTS 5. EMPLOYERS 6. STATE
OF OF
A. THE TORTFEASOR
Worcester vs. Ocampo (1958): (Refers to) All the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. Each joint tortfeasor is not only individually liable for the tort in which he participates, but is also jointly liable with his tortfeasors.
employer or person under whose control the tortfeasor was under) which is a manifestation of vicarious liability. Bonus paterfamilias. The relationship of pater familias (good father of the family) is the basis of civil law liability, particularly for an employer. It is a defense for all instances of vicarious liability based on Art. 2180. (Most frequently asked topic in Torts, 19752003)
1. Parents
Exconde vs. Capuno (1957): The civil liability which the law imposes upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is a necessary consequence of the parental authority they exercise over them which imposes upon the parents the 'duty of supporting them, keeping them in their company, educating them in proportion to their means', while, on the other hand, gives them the 'right to correct and punish them in moderation.' Tamargo vs. CA (1992): The basis of parental authority for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control. To hold that parental authority had been retroactively lodged in the adoptive parents so as to burden them with the liability for a tortious act that they could not have foreseen and prevented would be unfair. (NOTE: Art 2180, par 2 of the Civil Code which holds the father liable for damages has been modified by the Family Code and PD 603. Art. 211 of the FC declares joint parental authority of the mother and father over common children. The parent(s) exercising parental authority are liable for the torts of their children. Despite the lowering of the age of majority from 21 to 18, parents are still liable for the torts committed by their children below 21 years of age. Art 236, par 3 FC, as amended by RA 6809)
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B. VICARIOUS LIABILITY
Art. 2180, par 1. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. Art. 2180, par 8. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Art. 2181. Whoever pays for the damage caused by his dependents or employees may recover from the latter what he has paid or delivered in satisfaction of the claim. NOTE: Vicarious
liability is the imposition of liability on one person for the actionable conduct of another, based solely on a relationship between the two persons. The liability is primary and solidary. (BLACKS LAW DICTIONARY)
Common defense: exercise of the diligence of a good father of a family. Exception: common carriers extraordinary diligence. Were the liability subsidiary and not primary and solidary, the defense of due diligence would not be available
Respondeat superior It means nothing more than look to the man higher up, (usually the
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Art. 2180, par 2. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Art 58 (PD 603). Torts Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the civil code. Art 221 (FC). Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law.
2. Guardians
Art. 2180, par 3. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated: 1. The surviving grandparent, as provided in Art. 214; 2. The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and 3. The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. Art. 217. In case of foundlings, abandoned neglected or abused children and other children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children's homes, orphanages and similar institutions duly accredited by the proper government agency.
Art. 101 (RPC). Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law.
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REQUISITES ATTACH:
FOR
LIABILITY
TO
Parents - (mnemonic: 21 + Authority & Company): 1. The child is below 21 years old 2. The child is under the parental authority of the parents 3. The child is living in the company of the parents Guardians - (mnemonic: Authority & Company) 1. The ward if minor is below 21 years old. If incapacitated, the guardian is liable for the acts of the ward regardless of the latters age. 2. The child is under the parental authority of the parents. 3. The tortfeasor is under his authority. 4. The tortfeasor is living in his company. Is a minor or insane tortfeasor with NO parent or guardian liable? Yes. He shall be answerable with his own property in an action against him where a guardian ad litem shall be appointed. (Art. 2182)
Libi vs. IAC (1992): The parent's liability under 2180 should be primary and not subsidiary. If it were subsidiary, the parents cannot invoke due diligence as a defense. Such interpretation reconciles 2180 with 2194 which calls for solidary liability of joint tortfeasors.
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3. Teachers and Heads of Institutions

Who are liable Teacher- in- charge (the one designated to exercise supervision over students) Head of establishment of arts and trades School (generally not held liable) For whose Acts Pupils and students Apprentices a. b. If the tortfeasor is a student of the school (Art 218 FC) If the tortfeasor is a teacher/ employee of the school, it is liable as employer under 2180 (5) of CC (St. Francis vs. CA) If the tortfeasor is a stranger, it is liable for breach of contract. (PSBA vs. CA) Requisite for Liability to Attach pupils and students remain in teachers custody regardless of the age custody regardless of the age must be below 18
c.
Palisoc vs, Brillantes (1971): Custody refers to the protective and supervisory custody, and not the fact that the students have to live with their teachers. Amadora vs. CA (1988): Art. 180 applies to academic learning institutions. SC applied redendo singula singulis: arts and trades refers to head only, and not to teachers. So the general rule is: teachers are liable; however, if the school is for arts and trades, only the head is liable. Ylarde vs. Aquino (1988): The principal of the school cannot be held liable for the reason that the school he leads is an academic school and not a school of arts and trades. (Teachers liability has been asked four times from 1975-1990, and four times from 2004- 2007)
include a manager of a corporation. (Spanish term directores connotes employer. But manager of a corporation is not an employer, merely an employee of the owner.)
5. Employers
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Art 2180, par 5. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.
Philtranco vs. CA (1997): The liability of the registered owner and driver is solidary, primary and direct. Filamer vs. IAC (1992): Within the scope of their assigned task in Art. 2180 includes any act done by an employee in furtherance of the interests, or for the account of the employer at the time of the infliction of the injury or damage.
4. Owners and Establishments

Who liable are For acts
Managers
of
whose
Owners and managers of an establishment or enterprise
Their employees
Requisites for liability to attach The damage was caused in the service of the branches in which the employees are employed -ORThe damage was caused on the occasion of their functions
6. State
Sec 3, Art XVI, 1987 Constitution. The State may not be sued without its consent. Art 2180, par 6. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.
Philippine Rabbit vs. Philam Forwarders (1975): Owners and managers of an establishment or enterprise does not
Merrit vs. Government of the Philippine Islands (1960): The responsibility of the state is limited to the case wherein it acts through a special agent so that in representation of the state and being bound to act as an agent thereof, he
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executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations. Special Agent is one who receives a fixed order or commission foreign to the exercise of the duties of his office. NOTES: General Rule: The State cannot be sued. Exceptions: a. There is express legislative consent b. The State filed the case Instances where the state gives its consent to be sued: a. Art. 2180 (6) is an example of an express legislative consent. Here, the State assumes a limited liability for the acts of its special agents. b. Art. 2189 provides for state liability for damages caused by defective condition of public works. c. Local Government Code provides for the liability of local government units for wrongful exercise of its proprietary (as opposed to its governmental) functions. The latter is the same as that of a private corporation or individual. (Mendoza vs. De Leon, 1916) The state agencies or subdivisions, in the pursuance of proprietary functions, are akin to any other private corporation. They may be sued for: torts committed by them (Art. 2176) or torts committed by their employees (art 2180). As long as it is performing proprietary functions, it can be held liable for the acts of its employees, both regular and special.
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Chapter VII. Torts with Independent Civil Action

A. VIOLATION OF CIVIL AND POLITICAL RIGHTS B. DEFAMATION, FRAUD, PHYSICAL INJURIES 1. DEFAMATION 2. FRAUD 3. PHYSICAL INJURIES C. NEGLECT OF DUTY D. ACTION FOR DAMAGES WHERE NO INDEPENDENT CIVIL ACTION IS PROVIDED
A. Violation of Civil and Political Rights

Art 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: 1. Freedom of religion 2. Freedom of speech 3. Freedom to write for the press or to maintain a periodical publication 4. Freedom from arbitrary or illegal detention 5. Freedom of suffrage 6. The right against deprivation of property without due process of law 7. The right to just compensation when property is taken for public use 8. The right to equal protection of the laws 9. The right to be secure in ones person, house, papers and effects against unreasonable searches and seizures 10. The liberty of abode and of changing the same 11. The right to privacy of communication and correspondence 12. The right to become a member of associations and societies for purposes not contrary to law 13. The right to take part in a peaceable assembly and petition the government for redress of grievances 14. The right to be free from involuntary servitude in any form 15. The right of the accused against excessive bail 16. The right of the accused to be heard by himself and counsel, to be informed of the nature and the cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, to have compulsory process to secure the attendance of witnesses on is behalf; 17. Freedom form being compelled to be a witness against ones self, or from being forced to confess his guilt, or from being induced by a promise of immunity or
reward to make such confession, except when the person confessing becomes a State witness. 18. Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; 19. Freedom of access to the courts In any of the cases referred to in this article, whether or not the defendants act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted) and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal code or any other penal statute.
Cojuangco vs. CA (1999): The purpose of article 32 is to remind us that basic rights are immutable. Thus, absence of bad faith or malice is not a defense. Vinzons- Chato vs. Fortune (2007): A public officer may be sued under Art. 32 even if his acts were not so tainted with malice, as long as there is a violation of a constitutional right. Its precise object is to put an end to official abuse, done on the plea of good faith.
TORTS AND DAMAGES
B. Defamation, Injuries
Fraud,
Physical
Art. 33: In case of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.
Marcia vs. CA (1983): Reckless imprudence is not one of the three crimes mentioned in Art. 33; no independent civil action may be filed because what is punished is reckless imprudence is the negligent or careless act, not the result thereof. (However, in the contrary ruling in People vs. Faller, court discussed reckless imprudence under art. 33 not as a crime, but as a way of committing it,
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such that it punishes BOTH the act and the resulting damage, wherein an independent action could be allowed.)
1. Defamation
Cojuangco vs. CA (1991): Separate civil action may be consolidated with the criminal action. MVRS vs. Islamic Da'wah (2003): Defamation is that which tends to injure reputation or diminish esteem, respect, good will, or confidence of the plaintiff, or excite derogatory feelings about him. It must be personal. (What is definitive is not the level of hurt, but the effect of the statement on the reputation or standing of the person.)
or injury to anothers person or property. To create an obligation or give rise to civil liability, an act or omission, whether intentional or negligent, must have caused damage or injury to another, otherwise only criminal liability will attach. Though the general rule provides that one who is not criminally liable cannot be civilly liable, RPC Arts. 101-103 provide exceptions as they provide for vicarious liability for certain types of offenders and subsidiary liability in case of default of the offender. The civil liability established by RPC Arts. 100-103 include: a. Restitution; b. Reparation of the damage caused; and c. Indemnification for consequential damages. Neplum vs. Orbeso (2002): Deemed instituted in every criminal prosecution is the civil liability arising from the crime or delict per se (civil liability ex delicto), but not those liabilities from quasi-delicts, contracts or quasicontracts. Sps. Benito Lo Bun Tiong etc. vs. Vicente Balboa (2008): The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action and that no reservation to file such civil action separately shall be allowed. But a separate proceeding for the recovery of civil liability in cases of violations of B.P. No. 22 is allowed when the civil case is filed ahead of the criminal case. For independent civil actions: Physical injuries unqualifiedly refer to an independent cause of action, whether caused by a deliberate or negligent act. Jurisprudence is mixed, but Sangco discusses that the reservation requirement should only be for civil actions based on crime. What will prevent double recovery is the election of any of the civil actions, being an implicit waiver of the others. Madeja vs. Caro (1983): Article 33 is ex delicto, but it is an exception to the reservation requirement, as it allows the citizen to enforce his right
2. Fraud
Salta vs. De Veyra (1982): Independent civil actions are permitted to be filed separately regardless of the result of the criminal action. Samson vs. Daway (2004): Unfair competition under the Intellectual Property Code and fraud under Art. 33 are independent actions. Art. 33 does not operate as a prejudicial question to justify the suspension of the criminal cases at bar.
TORTS AND DAMAGES
3. Physical Injuries
Capuno vs Pepsi (1965): The institution of criminal action cannot have an effect of interrupting the running of the period for the filing of independent civil actions. Dulay vs. CA (1995): Homicide is included in Art. 33, where a separate action is availing. NOTE: Civil liability arising from crime
Art. 2177. Responsibility for fault or negligence is entirely separate and distinct from the civil liability arising from negligence under the RPC. But double recovery is not allowed.
Art. 100 of the Revised Penal Code provides that every person who is criminally liable for a felony is also civilly liable. This general rule however presupposes that the felony had resulted in damage
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to damages independent of the prosecutor. Physical injuries, fraud and defamation are used in their ordinary, generic sense (and not within RPC context).
BAR QUESTION As a result of a collision between a taxicab owned by A and another taxicab owned by B, X, a passenger of the first taxicab, was seriously injured. X later filed a criminal action against both drivers. (a) Is it necessary for X to reserve his right to institute a civil action for damages against both taxicab owners before he can file a civil action for damages against them? Why? (b) May both taxicab owners raise the defense of due diligence in the selection and supervision of their drivers to be absolved from liability for damages to X? Reason. Suggested Answer: (a) It depends. If the separate civil action is to recover damages arising from the criminal act, reservation is necessary. If the civil action against the taxicab owners is based on culpa contractual or on quasi-delict, there is no need for reservation. (b) It depends. If the civil action is based on quasi-delict, the taxicab owners may raise the defense of diligence of a good father of a family in the selection and supervision of the driver; if the action against them is based on culpa contractual or civil liability arising from a crime, they cannot raise the defense. Alternative Answer: No such reservation is necessary. Under Section 1 Rule 111 of the 2000 Rules on Criminal Procedure, what is deemed instituted with the criminal action is only the action to recover civil liability arising from the crime or ex delicto. All the other civil actions under Articles 32, 33, 34, 2176 of the New Civil Code are no longer deemed instituted, and may be filed separately and prosecuted independently even without any reservation in the criminal action (Section 3, Rule 111, 2000 Rules on Criminal Procedure). The failure to make a reservation the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the New Civil Code (Casupanan vs. Laroya, G.R. No. 145391, August 26, 2002)
C. Neglect of Duty
Art. 34: When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for the damages, and the city or municipality shall be subsidiarilly responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.
D. Action for Damages where Independent Civil Action Provided
No is
Art 35: When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender....
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Chapter VIII. Intentional Torts

A. ABUSE OF RIGHTS B. ACTS CONTRA BONUS MORES 1. ELEMENTS 2. EXAMPLES i. BREACH OF PROMISE TO MARRY, SEDUCTION AND SEXUAL ASSAULT ii. MALICIOUS PROSECUTION iii. PUBLIC HUMILIATION iv. UNJUSTIFIED DISMISSAL OTHER TORTS C. DERELICTION OF DUTY D. UNFAIR COMPETITION E. VIOLATION OF HUMAN DIGNITY Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
may be affected by his act or omission can support a claim for damages.
B. ACTS CONTRA BONUS MORES

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.
1. Elements
Albenson vs. CA ((1993): This provision has broadened the scope of civil wrongs; it is more supple and adaptable than tort. Elements: 1. legal action; 2. contrary to morals, public policy, good customs; 3. intent to injure.
A. ABUSE OF RIGHTS
Velayo vs. Shell (1959): It may be said that Art 19 only contains a mere declaration of principles and while such statement may be essentially correct, yet we find that such declaration is implemented by Art 21. There is no belief of more baneful consequences upon the social order than that a person may with impunity cause damage to his fellowmen so long as he does not break the law though he may be defying the most sacred postulates of morality. Globe vs. CA (1989): A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Albenson vs. CA (1993): The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.
University of the East vs. Jader (2000): Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/persons who
2. Examples
i. Breach of Promise to Marry, Seduction and Sexual Assault
Wassmer vs. Velez (1964): Mere breach of promise to marry is not an actionable wrong. But to formally set a wedding and go through all the abovedescribed preparation and publicity, only to walk out of it when the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in damages in accordance with Article 21. Baksh vs. CA (1993): Where a man's promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy.
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ii. Malicious Prosecution

Que vs. IAC (1989): To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person that it was initiated deliberately by the defendant knowing that his charges were false and groundless. Concededly, the mere act of submitting a case to the authorities for prosecution does not make one liable for malicious prosecution. Drilon vs. CA: Malicious Prosecution defined: An action for damages brought by one against whom a criminal prosecution, civil suit, or other legal proceeding has been instituted maliciously and without probable cause, after the termination of such prosecution, suit or other proceeding in favor of the defendant herein. The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury. Concurring requisites: 1. The fact of the prosecution and the defendant was himself the prosecutor and then action was terminated with an acquittal; 2. The prosecutor acted without probable cause; 3. That the prosecutor was impelled by legal malice, that is by improper or sinister motive.
OTHER TORTS C. Dereliction of Duty

Art. 27: Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against he latter, without prejudice to any disciplinary administrative action that may be taken.
Amaro vs. Samanguit: Requisites: (1) Defendant is a public officer charged with a performance of a duty in favor of the plaintiff; (2) He refused or neglected without just cause to perform the duty; (3) Plaintiff sustained material or moral loss as a consequence of such nonperformance; (4) The amount of such damages, if material.
D. Unfair Competition
Art. 28: Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.
TORTS AND DAMAGES
E. Violation of Human Dignity

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: 1. Prying into the privacy of another's residence 2. Meddling with or disturbing the private life or family relations of another 3. Intriguing to cause another to be alienated from his friends 4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition.
iii. Public Humiliation

Grand Union vs. Espino: It is against morals, good customs and public policy to humiliate, embarrass and degrade the dignity of a person. Everyone must respect the dignity, personality, privacy and peace of mind of his neighbors and other persons (Article 26, Civil Code).
iv. Unjustified Dismissal

Quisaba vs. Sta. Ines: The complaint in this case is not grounded on his dismissal per se, as in fact he does not ask for reinstatement, but on the manner of his dismissal and the consequent effects of such dismissal. If the dismissal was done anti-socially or oppressively, as the complaint alleges, then the respondents violated Art. 1701 of the CC and Art 21 of the CC.
St.
Louis Realty Corporation vs. CA (Illustration of a similar act): The acts and omissions of the firm fall under Article 26. Persons who know the residence of Doctor Aramil, were confused by the distorted, lingering impression that he was renting his residence from Arcadio or that Arcadio had leased it from him. Either way, his private life was mistakenly and unnecessarily exposed.
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Chapter IX. Damages
Chapter IX. Damages

A. DEFINITION AND CONCEPT B. KINDS OF DAMAGES 1. ACTUAL/COMPENSATORY DAMAGES i. KINDS OF ACTUAL DAMAGES ii. GENERAL PRINCIPLES FOR RECOVERY iii. DAMAGES FOR PERSONAL INJURY & DEATH iv. ATTORNEYS FEES 2. MORAL DAMAGES i. GENERAL PRINCIPLES OF RECOVERY ii. MORAL DAMAGES IN MALICIOUS PROSECUTION iii. MORAL DAMAGES IN RAPE iv. MORAL DAMAGES IN MURDER v. LABOR CASES 3. NOMINAL DAMAGES i. REQUISITES 4. TEMPERATE/MODERATE DAMAGES i. REQUISITES 5. LIQUIDATED DAMAGES 6. EXEMPLARY/CORRECTIVE DAMAGES i. REQUISITES TO RECOVER EXEMPLARY DAMAGES AND LIQUIDATED DAMAGES AGREED UPON IN ADDITION TO EXEMPLARY ii. GENERAL PRINCIPLES
B. KINDS OF DAMAGES
(1) ACTUAL/COMPENSATORY- for loss actually suffered (2) MORAL- mental anguish, etc. (3) NOMINAL- for rights recognized and violated (4) TEMPERATE/MODERATE- for damages proved but the amount was not proven (5) LIQUIDATED- stipulated damages in the contract (6) EXEMPLARY/CORRECTIVE- to serve as an example for the common good
1. Actual or Compensatory
When is a person entitled to actual or compensatory damages? (Art. 2199) When there is a pecuniary loss suffered by him; When he has alleged and prayed for such relief (Manchester Devt Corp vs. CA); When he has duly proved it; When provided by law or by stipulation. No proof of pecuniary loss is necessary for: moral, nominal, temperate, liquidated or exemplary damages. The assessment of such damages is discretionary upon the court, except liquidated ones. (Art. 2216) i. Kinds of Actual Damages
TORTS AND DAMAGES
A. DEFINITION AND CONCEPT

People vs. Ballesteros (supra): Damages may be defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right. Ocena vs. Icamina: The obligation to repair the damages exists whether done intentionally or negligently and whether or not punishable by law. Elements for recovery of damages: 1. Right of action 2. For a wrong inflicted by the defendant 3. Damage resulting to the plaintiff
CC Art. 2200
A.
2205
2206
2209 2208
Damnum emergente- value of the loss suffered B. Lucro cessante- profits which the obligee failed to obtain A. Loss of earning capacity due to injury (temporary or permanent) B. Damage to Business Standing or Commercial Credit A. Fixed indemnity for death = Php 50,000 (as of 2005) B. Loss of Earning Capacity of the Deceased Interest Attorneys Fees & Expenses of Litigation
ii. General Principles for Recovery (1) The amount of damages must be fair and just and commensurate to the loss.
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Chapter IX. Damages
In case of contracts, only those injuries which could have been reasonably foreseen by the parties by the parties at the time the contract was entered into are recoverable.
(2) The damages must be proximate and not remote or speculative. (3) The damages must be proven by competent evidence (admissible or probative) - Integrated Packaging Corp. vs. CA; Fuentes vs. CA: It is necessary to prove with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party, the actual amount of loss. (4) Circ. No. 7, Mar. 24, 1988; Manchester Devt. Corp. vs. CA, 1987: Complaint and prayer must specify amount of damages and pay filing fees before it may be accepted and admitted for filing. (5) The requirement of certainty does not prevent the drawing of reasonable inferences from the fact and circumstance in evidence. (6) Events which occur after the wrong complained of may serve to render the damage sufficiently certain.
Art. 2201 Contracts and quasi contracts
(7) The damages must be susceptible of ascertainment in some manner other than by mere speculation, conjecture or surmise and by reference to some fairly definite standard, such as market value, established experience or direct inference from known circumstances. Talisay-Silay vs. Associacion: Where, however, it is reasonably certain that injury consisting of failure to realize otherwise reasonably expected profits had been incurred, uncertainty as to the precise amount of such unrealized profits will not prevent recovery or the award of damages. The extent of recovery: Recovery of all proximately traceable to the primary negligence, including subsequent aggravations, the probability of which the law regards as a consequence and natural result likely to flow form the original injury. However, note that if the subsequent aggravations are due to his own negligence then the tortfeasor shall not be liable for such since Art. 2203 imposes a duty on the injured party to avoid loss or minimize resulting damages.
TORTS AND DAMAGES
Liability extends to those: 1. natural and probable consequences of the breach 2. those that have been foreseen 3. those that could have been reasonably foreseen Provided: obligor in good faith Liability extends to all damages which are the natural and probable consequence
Note: Liability extends to all damages which may be reasonably attributed to the non-performance of the obligation in case of fraud, bad faith, malice or wanton attitude (FBM-WA). Note: WON damage is foreseen is irrelevant
Art. 2202
Crimes and quasi-delicts
Algarra vs. Sandejas: Actual damages for a negligent act or omission are confined to those which "were foreseen or might have been foreseen," or those which were "the natural and probable consequences" or "the direct and immediate consequences" of the act or omission. (Asked eight times from 1990 to 2008)
Daywalt vs. Recoletos et al.: The damages recoverable upon breach of contract are, primarily, the ordinary, natural and in a sense the necessary damage resulting from the breach. Other damages, known as special damages, are recoverable where it appears that the particular conditions which made such damages a probable consequence of the breach were known to the delinquent party at the time the contract was made.
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Chapter IX. Damages
What must be proved:

Fact of Injury Proof Reasonable certainty only that the fact and cause of injury must be taken out of the area of speculation. Usual burden of proof required in a negligence case, prove the substantive right, its breach and the amount of damages flowing from the breach. Proximate cause the cause, which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred. (without which test of cause in fact) Need not be proved with the same degree of certainty. Fair and reasonable estimate of the amount of damage.
demand support from the person causing the death, for a period not exceeding five years (d) Moral damages - demanded by the spouse, legitimate and illegitimate descendants and ascendants of the deceased FACTORS: 1. Earning Capacity 2. Obligation to Support 3. Moral Damages to heirs Compensation should be allowed for loss of earning capacity resulting from the death of a minor who has not yet commenced employment or training for a specific profession if sufficient evidence is presented to establish the amount thereof. The argument for allowing compensation for loss of earning capacity of a minor is even stronger if he or she was a student, whether already training for a specific profession or still engaged in general studies. Formula established in decided cases for computing net earning capacity: MMTC v. CA: Net earning capacity (X) = life expectancy * [gross annual income reasonable, necessary living expenses] Life expectancy = 2/3 (80- age of deceased) iv. Attorneys Fees Attorneys Fees is the exception NOT the general rule.
Art. 2208: can be recovered: (1) If there is a stipulation to that effect (2) When exemplary damages are awarded; (3) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; (4) In criminal cases of malicious prosecution against the plaintiff; (5) In case of a clearly unfounded civil action or proceeding against the plaintiff; (6) Where the defendant acted in gross and evident bad faith in refusing to
Cause
Amount
When pecuniary loss need not be proved 1) Liquidated damages previously agreed upon 2) If damages other than actual are sought (Art. 2216) 3) Loss is presumed (ex: loss of a child or spouse) 4) Forfeiture of bonds in favor of the government for the purpose of promoting public interest or policy (ex: bond for temporary stay of alien iii. Damages for Personal Injury & Death (Art. 2206) Recoverable damages for death caused by a crime or quasi-delict: (a) At least three thousand pesos, even though there may have been mitigating circumstances. - (People vs. Robert Brodett y Pajaro, Jan. 18, 2008: so as of 2008, it is P75,000 (b) Loss of the earning capacity of the deceased, - paid to his heirs - unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of death; (c) Support according to the provisions of Article 291 - the recipient who is not a testate or intestate heir may
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Chapter IX. Damages
(7) (8) (9) (10) (11) (12)
satisfy the plaintiff's plainly valid, just and demandable claim; In actions for legal support; In actions for the recovery of wages of household helpers, laborers and skilled workers; In actions for indemnity under workmen's compensation and employer's liability laws; In a separate civil action to recover civil liability arising from a crime; When at least double judicial costs are awarded; In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.
Interest due Art. 2210
From Breach of contract Discretion of the court Discretion of the court Interest imposed on damages awarded Interest is awarded as part of damages
Art. 2211
Crimes and quasidelicts
When shall interest earn legal interest? from judicial demand even if the obligation is silent upon this point. (Art. 2212) When is interest not recovered? When claims/ damages are unliquidated EXCEPT when the demand can be established with reasonably certainty. (Art. 2213)
In all cases, the attorney's fees and expenses of litigation must be reasonable.
Kinds: (1) Retainers agreement between the lawyer and the client (in writing). (2) Award as an indemnity to the client. Quirante vs. IAC: BELONGS to the client hence the litigant is the judgment creditor who may enforce the judgment by execution. INTEREST accrues when: the obligation consists in the payment of a sum of money debtor incurs in delay there being no stipulation to the contrary
If there is no stipulated interest the legal interest of 6%. (Art. 2209)

BASE a. When the obligation is breached, and it consists in the PAYMENT OF A SUM OF MONEY, i.e., a loan or forbearance of money, the interest due should be b. Furthermore, the INTEREST DUE shall itself earn c. When an obligation, NOT constituting a loan or forbearance of money, is breached, an interest on the AMOUNT OF DAMAGES awarded may be imposed at the discretion of the court. The actual base for the computation of legal interest shall be on the amount finally adjudged.
Determination of legal interest: 1. When an obligation, regardless of its source (i.e., law, contracts, quasicontracts, delicts or quasi-delicts) is breached, the contravenor can be held liable for damages. 2. With regard particularly to an AWARD OF INTEREST in the concept of actual and compensatory damages, the RATE of interest, as well as the ACCRUAL thereof, is imposed, as follows(Eastern Shipping Lines vs. CA, 1994):
ACCRUAL to be computed from default, i.e., from JUDICIAL or EXTRAJUDICIAL demand under and subject to the provisions of Article 1169 of the Civil Code. from the time demanded. it is JUDICIALLY
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RATE a) That which may have been stipulated in writing. b) In the absence of stipulation, the rate of interest shall be 12% per annum (legal interest) legal interest at the rate of 6% per annum.
If claim or damages are LIQUIDATED, from default, i.e., from judicial or extrajudicial demand. (Art. 1169, Civil Code) If UNLIQUIDATED, from the time the demand can be established with reasonable certainty. Hence, the interest shall begin to run only FROM THE DATE THE JUDGMENT OF THE COURT IS MADE (at which time the quantification of damages may be deemed to have been reasonably ascertained).
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BASE d. When the JUDGMENT of the court awarding a sum of money becomes final and executory,
RATE the rate of legal interest, whether the case falls under a,b, or c, above, shall be 12% per annum
ACCRUAL from FINALITY UNTIL ITS SATISFACTION, this period being deemed to be an equivalent to a forbearance of credit.
Start of Delay (1) Extrajudicial: demand letter (2) Judicial: Filing of complaint (3) Award When damages mitigated: 1. In quasi-delicts contributory negligence (Art. 2214) 2. Doctrine of avoidable consequences a) This refers to the duty to minimize damages once a cause of action has accrued. Standard: good father of a family (Art. 2203) 3. In contracts, quasi-contracts and quasi-delict (C-BELL): a) plaintiff has contravened the terms of contract b) plaintiff derived some benefit as result of contract c) in case where exemplary damages are to be awarded, that the defendant acted upon the advise of counsel d) that the loss would have resulted in any event e) that since the filing of the action, the defendant has done his best to lessen the plaintiff's loss or injury (Art. 2215) 4. In crimes mitigating circumstances (Art. 2204) (increased, for aggravating)
g. Social humiliation h. Serious anxiety i. Similar injury Though incapable of pecuniary computation If such is the proximate result of defendants act or omission.
Villanueva vs. Salvador: Requisites for awarding moral damages: (1) there must be an injury, whether physical, mental or psychological, clearly sustained by the claimant; (2) there must be a culpable act or omission factually established; (3) the wrongful act or omission of the defendant must be the proximate cause of the injury sustained by the claimant; and (4) the award of damages is predicated on any of the cases stated in ART. 2219 NCC. i. General Principles of Recovery 1. Moral damages must somehow be proportional to the suffering inflicted. 2. In culpa contractual or breach of contract, moral damages may be recovered when the defendant acted in bad faith or was guilty of gross negligence (amounting to bad faith) or in wanton disregard of his contractual obligation and, exceptionally, when the act of breach of contract itself is constitutive of tort resulting in physical injuries. 3. By special rule in Article 1764, in relation to Article 2206, moral damages may also be awarded in case the death of a passenger results from a breach of carriage. 4. In culpa aquiliana, or quasi-delict, (a) when an act or omission causes physical injuries, or (b) where the defendant is guilty of intentional tort, moral damages may aptly be recovered. This rule also applies to contracts when breached by tort.
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2. Moral Damages
Visayan Sawmill vs. CA: Moral damages are emphatically not intended to enrich a complainant at the expense of the defendant. Its award is aimed at the restoration, within the limits of the possible, of the spiritual status quo ante, and it must be proportional to the suffering inflicted. Art. 2217: Awarded when injury consists of: (PBMF-MWSSS) a. Physical suffering b. Besmirched reputation c. Mental anguish d. Fright e. Moral shock f. Wounded feelings
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5. In culpa criminal, moral damages could be lawfully due when the accused is found guilty of physical injuries, lascivious acts, adultery or concubinage, illegal or arbitrary detention, illegal arrest, illegal search, or defamation. 6. Malicious prosecution can also give rise to a claim for moral damages. The term "analogous cases," referred to in Article 2219, following the ejusdem generis rule, must be held similar to those expressly enumerated by the law. 7. Although the institution of a clearly unfounded civil suit can at times be a legal justification for an award of attorney's fees, such filing, however, has almost invariably been held not to be a ground for an award of moral damages. (Expertravel& Tours vs. CA, 1 to 7) 8. The burden rests on the person claiming moral damages to show convincing evidence for good faith is presumed. In a case involving simple negligence, moral damages cannot be recovered. (Villanueva vs. Salvador) 9. Failure to use the precise legal terms or "sacramental phrases" of "mental anguish, fright, serious anxiety, wounded feelings or moral shock" does not justify the denial of the claim for damages. It is sufficient that these exact terms have been pleaded in the complaint and evidence has been adduced (Miranda-Ribaya vs. Bautista) 10. Even if the allegations regarding the amount of damages in the complaint are not specifically denied in the answer, such damages are not deemed admitted. Raagas, et al. vs. Traya et al. 11. An appeal in a criminal case opens the whole case for review and this 'includes the review of the penalty, indemnity and damages. Even if the offended party had not appealed from said award, and the only party who sought a review of the decision of said court was the accused, the court can increase damages awarded. Sumalpong vs. CA
CASES WHERE RECOVERY OF MORAL DAMAGES ARE ALLOWED (1) A criminal offense of physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander, defamation; (8) Malicious prosecution; (9) Article 309; (10) Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. (Art. 2219) (11) wilful injury to property (Art. 2220) (12) breach of contract (Art. 2220) (13) death of passenger from breach a breach of carriage (Art. 1764 in relation to Art. 2206 and (Expertravel & Tours vs. CA) Art. 2219. Moral damages may be recovered in the following and analogous cases: (not an exclusive list; 2PI-SALAMI-309-Others) (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in Article 309; (disrespect for the dead) (10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. Who else can recover moral damages? - Parents of the female seduced, abducted, raped, or abused, referred to in No. 3 - The spouse, descendants, ascendants, and brothers and sisters (SDABS) may bring the action mentioned in No. 9 in the order named.
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What are the other legal grounds for awarding moral damages? - Willful injury to property if such damages are justly due. - Breaches of contract where the defendant acted fraudulently or in bad faith. (Art. 2220) (asked five times from 1990 to 2008) BAR QUESTION
Ortillo contracts Fabricato, Inc. to supply and install tile materials in a building he is donating to his province. Ortillo pays 50% of the contract price as per agreement. It is also agreed that the balance would be payable periodically after every 10% performance until completed. After performing about 93% of the contract, for which it has been paid an additional 40% as per agreement, Fabricato, Inc. did not complete the project due to its sudden cessation of operations. Instead, Fabricato, Inc. demands payment of the last 10% of the contract despite its non-completion of the project. Ortillo refuses to pay, invoking the stipulation that payment of the last amount of 10% shall be upon completion. Fabricato, Inc. brings suit for the entire 10% plus damages. Ortillo counters with claims for (a) moral damages for Fabricato, Inc.s unfounded suit which has damaged his reputation as a philanthropist and respected businessman in his community, and (b) attorneys fees. (a) Does Ortillo have a legal basis for his claim for moral damages? (b) How about his claim for attorneys fees, having hired a lawyer to defend him? Suggested Answer: (a) There is no legal basis to Ortillos claim for moral damages. It does not fall under the coverage of Article 2219 of the New Civil Code. (b) Ortillo is entitled to attorneys fees because Fabricatos complaint is a case of malicious prosecution or a clearly unfounded civil action (Art. 2208 [4] and [11], NCC).
damages. The law could not have meant to impose a penalty on the right to litigate; such right is so precious that moral damages may not be charged on those who may exercise it erroneously. iii. Moral Damages in Rape People vs. Calongui: Anent the award of damages, civil indemnity ex delicto is mandatory upon finding of the fact of rape while moral damages is awarded upon such finding without need of further proof because it is assumed that a rape victim has actually suffered moral injuries entitling the victim to such award. If without factual and legal bases, no award of exemplary damages should be allowed. iv. Moral Damages in Murder People vs. Barcena: TC correctly awarded P75K as civil indemnity which is awarded if the crime is qualified by circumstances which warrant the imposition of the death penalty. However, the award of P50K as moral damages must be increased to P75K in line with prevailing jurisprudence. In addition, the presence of the qualifying circumstances of minority and relationship entitles the offended party to exemplary damages in the amount of P25K. People vs. Teodorico Cleopas and Pirame (2000): The award of P50,000 from each accused as moral and exemplary damages, however, is unsupported. The widow of the victim did not testify on any mental anguish or emotional distress, which she suffered as a result of her husband's death. Arcona vs. CA: As borne out by human nature and experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the victims family. Such violent death or brutal killing not only steals from the family of the deceased his precious life, deprives them forever of his love, affection and support, but often leaves them with the gnawing
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ii. Moral Damages Prosecution
in
Malicious
Mijares vs. CA: Moral damages cannot be recovered from a person who has filed a complaint against another in good faith, or without malice or bad faith. If damage results from the filing of the complaint, it is damnum absque injuria. Castillo vs. Castillo: The adverse result of an action does not per se make the act wrongful and subject the actor to the payment of moral
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feeling that an injustice has been done to them. For this reason, moral damages must be awarded even in the absence of any allegation and proof of the heirs emotional suffering. v. Labor Cases Triple Eight Interated Services, Inc. vs. NLRC: Moral damages are recoverable where the dismissal of the employee was attended by bad faith or fraud or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs, or public policy. Likewise, exemplary damages may be awarded if the dismissal was effected in a wanton, oppressive or malevolent manner. Factors in determining amount: (1) Political, social, financial status, of the person offended as well as the business and financial standing of the offender. (2) Degree of anguish (3) Sentimental value where applicable ILLUSTRATIONS: Kierulf et al. vs. CA : The social and financial standing of a claimant of moral damages may be considered in awarding moral damages only if he or she was subjected to contemptuous conduct despite the offender's knowledge of his or her social and financial standing. PNB vs. CA: Petitioner has not presented adequate evidence to show that private respondent is indeed a big time gambler. Petitioner has besmirched private respondent's reputation and has considerably caused him undue humiliation. The records further show that plaintiff is a prominent businessman, licensed and engaged in the real estate business. He is at the same time a consultant of DizonEsguerra Real Estate Company. Defendant treated him as a valued and VIP client. Because of the bank's refusal to encash the entire one million face amount of his manager's checks, he was so embarrassed for he was not able
to purchase a house and lot in Baguio City. Lopez, et al. vs. Pan American World Airways: International carriers like defendant know the prestige of such an office. For the Senate is not only the Upper Chamber of the Philippine Congress, but the nation's treatyratifying body. And he was former VicePresident of the Philippines. An award of P100,000,000 is appropriate. Mrs. Maria J. Lopez, as wife of Senator Lopez, shared his prestige and therefore his humiliation. Mr. and Mrs. Alfredo Montelibano, Jr. were traveling as immediate members of the family of Senator Lopez. As such they likewise shared his prestige and humiliation. Producers Bank vs. CA: In the case of Leopoldo Araneta v. Bank of America, we held that: "The financial credit of a businessman is a prized and valuable asset, it being a significant part of the foundation of his business. Any adverse reflection thereon constitutes some financial loss to him. The damage to private respondents' reputation and social standing entitles them to moral damages. Strebel vs. Figueras, et al.: As a general rule, the right of recovery for mental suffering resulting from bodily injuries is restricted to the person who has suffered the bodily hurt, and there can be no recovery for distress caused by sympathy for another's suffering, or for fright due to a wrong against a third person. A husband or wife cannot recover for mental suffering caused by his sympathy for the other's suffering. For Corporations: ABS-CBN vs. CA: The award of moral damages cannot be granted in favor of a corporation because, being an artificial person and having existence only in legal contemplation, it has no feelings, no emotions, no senses, It cannot, therefore, experience physical suffering and mental anguish, which call be experienced only by one having a nervous system. The statement in People vs. Manero and Mambulao Lumber Co. vs. PNB that a corporation may recover moral damages if it "has a good reputation that is debased, resulting in social humiliation" is an obiter dictum.
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NAPOCOR vs. Philipp Brothers: While it is true that besmirched reputation is included in moral damages, it cannot cause mental anguish to a corporation, unlike in the case of a natural person, for a corporation has no reputation in the sense that an individual has, and besides, it is inherently impossible for a corporation to suffer mental anguish.
BAR QUESTION Rosa was leasing an apartment in the city. Because of the Rent Control Law, her landlord could not increase the rental as much as he wanted to, nor terminate her lease as long as she was paying her rent. In order to force her to leave the premises, the landlord stopped making repairs on the apartment, and cause the water and electricity services to be disconnected. The difficulty of living without electricity and running water resulted in Rosas suffering a nervous breakdown. She sued the landlord for actual and moral damages. Will the action prosper? Explain. Answer: Yes, based on quasi-delict under the human relations provisions of the New Civil Code (Articles 19, 20 and 21) because the act committed by the lessor is contrary to morals. Moral damages are recoverable under Article 2219 (10) in relation to Article 21. Although the action is based on quasi-delict and not on contract, actual damages may be recovered if the lessee is able to prove the losses and expenses she suffered. Alternative Answers: (a) Yes, based on breach of contract. The lessor has the obligation to undertake repairs to make the apartment habitable and to maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire duration of the contract (Article 1654, NCC). Since there was willful breach of contract by the lessor, the lessee is entitled to moral damages under Article 2220, NCC. She is also entitled to actual damages, e.g. loss of income, medical expenses, etc., which she can prove at trial. (b) Yes, based on contract and/or on tort. The lessor willfully breached his obligations under Article 1654, NCC, hence, he is liable for breach of contract. For such breach, the lessee may recover moral damages under Art. 2220 of the NCC, and actual damages that she may have suffered on account thereof. And since the conduct of the lessor was contrary to morals, he may also be held liable for quasi-delict. The lessee may recover moral damages under Article 2219 (10) in relation to Article 21, and all actual damages which she may have suffered by
reason of such conduct under Articles 9, 20 and 21. (c) Yes, the action should prosper for both actual and moral damages. In fact, even exemplary damages and attorneys fees can be claimed by Rosa, on the authority of Magbanua vs. IAC (137 SCRA 328), considering that, as given, the lessors willful and illegal act of disconnecting the water and electric services resulted in Rosas suffering a nervous breakdown. Art. 20 NCC and Art. 21 NCC authorize the award of damages for such willful and illegal conduct.
3. Nominal Damages
Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. Art. 2222. The court may award nominal damages: in every obligation in Article 1157, or where any property right has been invaded. Art. 2223. Adjudication of nominal damages precludes: further contest upon the right involved all accessory questions between the parties or their respective heirs and assigns.
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i. Requisites: (1) A legal right has been violated. (2) There is no loss or damage suffered or such cannot be proven or was not proved. (3) The award is to vindicate the right violated. General Rule: One does not ask for nominal damages, and it is in lieu of the actual, moral, temperate, or liquidated damages. Nominal damages are incompatible with: actual, temperate and exemplary damages. Armovit vs. CA: Nominal damages cannot co-exist with actual or compensatory damages. Francisco v. Ferrer: No moral or exemplary damages was awarded. Nevertheless, when confronted with their failure to deliver on the wedding day the wedding cake ordered and paid for, petitioners
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gave the lame excuse that delivery was probably delayed because of the traffic, when in truth, no cake could be delivered because the order slip got lost. For such prevarication, petitioners must be held liable for nominal damages for insensitivity, inadvertence or inattention to their customer's anxiety and need of the hour.
5. Liquidated Damages Those agreed upon by the parties to a contract, to be paid in case of breach thereof. (Art. 2226) Grounds for equitable reduction: - iniquitous or - unconscionable. (Art. 2227) Stipulation is not controlling: When the breach of the contract is not the one contemplated by the parties in agreeing upon the liquidated damages. In this case, the law shall determine the measure of damages. (Art. 2228) These damages are agreed upon in a contract in case of breach thereof. There is no need to prove the amount, only the fact of the breach. The amount can be reduced if: - unconscionable as determined by the court - partial or irregular performance. General Rule: The penalty shall substitute the indemnity for damages and the payment of the interests in case or breach. Exceptions (1) When there is a stipulation to the contrary. (2) When the obligor is sued for refusal to pay the agreed penalty. (3) When the obligor is guilty of fraud.
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4. Temperate Damages
Temperate or moderate damages are more than nominal but less than compensatory damages. It may be recovered when some pecuniary loss has been suffered but its amount can not be provided with certainty. (Art. 2224) Temperate damages must be reasonable under the circumstances. (Art. 2225) i. Requisites: (1) There is actual damage. (2) The pecuniary amount of damage cannot be proved. (3) Amount must be reasonable.
the
In cases where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur are difficult to predict, temperate damages can and should be awarded on top of actual or compensatory damages; in such cases there is no incompatibility between actual and temperate damages. Citytrust Bank vs. IAC: Temperate damages are incompatible with nominal damages hence, cannot be granted concurrently. Pleno vs. CA: Temperate damages are included within the context of compensatory damages (RCPI vs. CA). ". . . There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss. For instance, injury to one's commercial credit or to the goodwill of a business firm is often hard to show certainty in terms of money. (NOTE: In this case actual and temperate damages were awarded. It is postulated that the actual damages is for the car while the temperate damages is for the lost actual income not sufficiently proved.)
6. Exemplary/Corrective Damages
Art. 2229. Nature of exemplary or corrective damages - Imposed by way of example - or correction for the public good - in addition to the moral, temperate, liquidated or compensatory damages. Exemplary damages cannot be recovered as a matter of right; discretion of the court. (Art. 2233) i. Requisites to recover exemplary damages and liquidated damages agreed upon in addition to exemplary (Art.2234):
The plaintiff must show that he is entitled to moral, temperate or compensatory damages:
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If arising from Art. 2230 Art. 2231 Art. 2232 Crimes
Quasi-delicts Contracts Quasicontracts and
When exemplary damages are granted the crime was committed with an aggravating circumstance/s defendant acted with gross negligence defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner (WFROMM)
stipulation whereby exemplary damages are renounced in advance shall be null and void. (Art. 2235)
ii. General Principles (1) Amount need not be proven. (2) Cannot be recovered as a matter or right; may be waived. (3) An employer may be subsidiarily liable to pay moral, actual, temperate or liquidated damages arising from an employees criminal offense, but NOT as to exemplary damages because aggravating circumstances are personal to the accused. PNB vs. CA: However, the award of P1,000,000 exemplary damages is also far too excessive and should likewise be reduced to an equitable level. Exemplary damages are imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a negative incentive to curb socially deleterious actions.
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Table of Contents
PERSONS AND FAMILY RELATIONS

CHAPTER 1: CIVIL PERSONALITY I. Concept and Classes of Persons A. Natural Persons B. Juridical Persons II. Capacity to Act and Restrictions Thereon A. Presumption of Capacity B. Restrictions 1. Minority 2. Insanity 3. Being Deaf-Mute 4. Prodigality 5. Civil Interdiction 6. Family Relations 7. Absence CHAPTER 2: CITIZENSHIP DOMICILE I. Who are Filipino Citizens II. Domicile A. Requisites of Domicile B. Kinds of Domicile AND 164 164 164 164 164 165 165 165 165 166 167 168 169 169 172 172 174 174 174 177 177 177 177 178 179 179 179
159 159 159 160 161 161 161 161 161 162 162 162 162 162
CHAPTER 6: LEGAL SEPARATION, DIVORCE and DE FACTO SEPARATION I. Grounds for Legal Separation II. Defenses III. When to file/try actions A. Prescription B. Reconciliation Period C. Attempts on Reconciliation D. Confession E. Collusion IV. Effects of filing petition for legal separation V. Effects of Decree for Legal Separation VI. Reconciliation A. How done B. Effects of Reconciliation VII. Divorce VIII. De Facto Separation CHAPTER 7: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND & WIFE I. Obligation of Spouses II. Rights of Spouses III. Use of Surname
180 180 180 181 181 181 181 181 181 181 181 182 182 182 182 183
CHAPTER 3: MARRIAGE I. Definition and Nature of Marriage II. Requisites of Marriage A. Essential Requisites B. Formal Requisites III. Marriages Solemnized Abroad IV. Presumption of Marriage CHAPTER 4: VOID MARRIAGES I. Grounds II. Period to File Action or Raise Defense III. Effects of Nullity CHAPTER 5: VOIDABLE MARRIAGES I. Grounds for Annulment A. Explanation B. Who may file, prescription, ratification II. When one spouse is absent A. Requirements for subsequent marriage to be valid when prior spouse is absent B. Effect of reappearance of absent spouse III. Effects of Pending Action/Decree IV. Voidable vs. Void V. Voidable vs. Legal Separation VI. Jurisdiction
184 184 184 184
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CHAPTER 8: PROPERTY RELATIONS BETWEEN SPOUSES I. General Provisions II. Donations by Reason of Marriage III. ACP A. In General B. What constitutes Community Property C. Charges upon the ACP D. Administration, Ownership and Disposition of the ACP E. Dissolution of the ACP F. Liquidation of Assets and Liabilities IV. CPG A. Where it applies B. Husband and wife place in common fund C. Exclusive properties of the spouses D. What Constitutes the CPG E. Rules F. Charges upon CPG G. Administration of the CPG H. Dissolution of the CPG I. Liquidation of Assets and Liabilities V. Separation of Properties during Marriage VI. Property Regime of Unions without Marriage CHAPTER 9: THE FAMILY AND FAMILY HOME I. Family A. Family Relations B. General Rule C. Exceptions II. Family Home A. General Rule B. Exceptions C. Beneficiaries of the family home D. Requisites for creditor to avail of the right under article 160 CHAPTER 10: PATERNITY AND FILIATION I. Kinds of Filiation II. Impugning Legitimacy III. Proof of Filiation IV. Legitimation V. Rights of Legitimate or Illegitimate Children
185 185 186 187 187 187 188 188 189 189 190 191 191 191 191 192 193 193 194 194 195 196
CHAPTER 11: ADOPTION I. R.A. 8552 A. Who may adopt B. Who may be adopted II. Adoption procedure under RA 8552 IRR A. Pre-Adoption Services B. Effects of Adoption C. Rescission of Adoption D. Effects of Rescission E. Rectification of Simulated Births III. R.A. 8043: Inter-Country Adoption Act of 1995 A. Who may adopt B. Who may be adopted C. Where to file application D. Documents to support application E. Inter-country Adoption Board F. Trial Custody CHAPTER 12. SUPPORT I. General Provisions A. Kinds B. Characteristics C. How support is given II. Who are obliged to Support each other III. Order of Support A. If there are two or more to give support B. If there are multiple recipients CHAPTER 13. PARENTAL AUTHORITY I. Parental Authority General Provisions A. Custody B. Other Rights and Duties in Exercise of Parental Authority II. Substitute and Special Parental Authority III. Suspension or Termination of Parental Authority IV. Rights and Duties of Children CHAPTER 14. FUNERALS
204 204 204 205 205 205 205 206 206 206 207 207 207 207 208 208 208 209 209 209 209 209 209 209 209 210 211 211 211 211 212 212 213 214
198 198 198 198 198 198 198 198 198 199
200 200 200 201 202 203
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Chapter 1. Civil Personality
Persons and Family Relations

FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE Prof. Theodore O. Te
FACULTY EDITOR

SUBJECT EDITORS
LECTURES Edel Cruz

HEAD

-------Kae Guerrero
PERSONS & FAMILY RELATIONS Pat Tobias

LEAD WRITER
-------Leo Zulueta
Rania Joya

I. CONCEPT AND CLASSES OF PERSONS A. NATURAL PERSONS B. JURIDICAL PERSONS II. CAPACITY TO ACT AND RESTRICTIONS THEREON A. PRESUMPTION OF CAPACITY B. RESTRICTIONS 1. MINORITY 2. INSANITY 3. BEING DEAF-MUTE 4. PRODIGALITY 5. CIVIL INTERDICTION 6. FAMILY RELATIONS 7. ABSENCE
Kinds of Capacity 1. Juridical Capacity: aka as Legal Capacity/Personality = Fitness of man to be the subject of legal relations It refers to the aptitude for the holding and enjoyment of rights. It is inherent in every natural person and is lost only through death. This attaches to man by the mere fact of his being a man. 2. Capacity to Act: It refers to the power to do acts with legal effect. It is conditional and variable. It is acquired and may be lost. It requires both intelligence and will. Note: Juridical capacity can exist even without capacity to act; the existence of the latter implies that of the former. The capacity or incapacity of persons depends upon the law. Both juridical capacity and capacity to act are not rights but qualities of persons; hence, they cannot be renounced.
I. Concept and Classes of Persons

(asked 81, 86, 91, 95, 96, 98, 07 and 08 bar exams) Concept of Personality Personality is the quality derived from being a person; it is an attribute of persons. Characteristics 1. It is not a being, but a quality of certain beings. 2. It is not a physical element, but a juridical concept. 3. It is not an object of contract, or of possession, and cannot be impaired by agreement. 4. It is a matter of public interest.
Art. 37 (CC). Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.
A. Natural Persons
(asked in 99 bar exam) General Rule: Birth determines personality (Art 40). Death extinguishes civil personality (Art 42). Exception: a conceived child shall be considered born for all purposes that are FAVORABLE to it, provided it be born later (Art 40, 2nd clause) with the following circumstances:
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i.
From the time it is completely delivered from the mother's womb. ii. But if the fetus had an intra-uterine life of less than seven months, it should survive for at least 24 hours after its complete delivery. (Art. 41, CC) [Test of life: complete respiration]
Art. 40 (CC). Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article.
The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will.
Note: When a person dies, the subject of legal relations disappears. But for certain purposes, after his death, his personality is deemed to continue in his estate. People v. Tirol, (1981) Criminal liability ends with death BUT civil liability may be charged against the estate.
Art. 43 (CC). If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.
Birth = complete removal of the fetus from the mothers womb; before birth, a fetus is merely part of the mothers internal organs Personality of Conceived Child 1. Limited = only for purposes FAVORABLE to it 2. Conditional = it depends upon the child being born alive later Period of Conception = the first 120 days of the 300 days preceding the birth of the child A conceived child can acquire rights while still in the mothers womb. It can inherit by will or by intestacy. Geluz v. CA, (1961) An aborted fetus had conditional personality but never acquired legal rights/civil personality because it was not alive at the time of delivery from the mothers womb. No damages can be claimed in behalf of the unborn child.
Art. 41 (CC). For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.
Note: Article 43 provides a statutory presumption when there is doubt on the order of death between persons who are called to succeed each other (only). Joaquin v. Navarro, (1948) The statutory presumption of Article 43 was not applied due to the presence of a credible eyewitness as to who died first.
B. Juridical Persons
1. The State and its Political subdivisions; 2. Other Corporations, Institutions and Entities for public interest or purpose, created by law; 3. Corporations, Partnerships, and Associations for private interest or purpose to which the law grants a juridical personality. (Art 44, CC) Governing Laws (Art 45, CC):
Juridical Person 1. State 2. 3. 4. 5. Political Subdivision Public Corporation Private Corporation Partnerships Governed by Constitution (defines its organization and limits its rights vis--vis citizens) Charter creating them Charter creating them Corporation Code, Articles of Incorporation and ByLaws Stipulations of the parties and suppletorily by the general provisions on partnership of the Civil Code
Complete respiration independent life
test/sign
of
Note: For a fetus that had an intra-uterine life of less than seven months, it is necessary that it lives for more than 24 hours, for it to be considered born.
Art. 42 (CC). Civil personality is extinguished by death.
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RULES: Juridical persons may acquire and possess property of all kinds, incur obligations, and bring civil or criminal actions (Art. 46, CC) Upon dissolution of corporations or institutions and other entities for public interest, their property and assets shall be disposed of in pursuance of the law or charter creating them. (Art. 47, CC)
II. Capacity to Act and Restrictions Thereon A. Presumption of Capacity

Standard Oil Co. v. Arenas, (1911) Capacity to act is presumed until the contrary is proven, and that it be the reason for the specific act attributed. Proof of restriction: habituality, presence at the time, no other cause
Effects on Contracts they cannot give consent to a contract [Art 1327 (1), CC] a contract where one of the parties is a minor is voidable [Art 1390(1),CC] a contract is unenforceable when both of the parties are minors (incapable of giving consent) [Art 1403(3), CC] minority cannot be asserted by the other party in an action for annulment (Art 1397, CC) not obliged to make restitution except insofar as he has been benefited (Art 1399, CC) minor has no right to demand the thing/price voluntarily returned by him (Art 1426, CC) minor has no right to recover voluntarily paid sum or delivered thing, if consumed in good faith (Art 1427, CC) must pay reasonable amount for necessaries delivered to him (Art 1489, CC) Mercado v. Espiritu, (1918) Estoppel works against minors who misrepresent their ages in a contract and are compelled to comply with its terms. Bambalan v. Maramba, (1928) When a minor made no active misrepresentation as to his minority and such minority is known to the other party, the contract is voidable (Art 1403) as to the minor. Braganza v. Villa Abrille, (1959) Minors are obliged to make restitution insofar as they have been benefited (Art 1399) Effects on Marriage may not yet contract marriage (Art 5, FC) marriages, where one of the parties is below 18, even with the consent of parents/guardians, are VOID (Art 35, FC)
B. Restrictions
Art. 38 (CC). Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. Art. 39 (CC). The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law.
General Rule: Incapacitated persons are not exempt from certain obligations arising from his acts or property relations.
2. Insanity
Insanity includes many forms of mental disease, either inherited or acquired. A person may not be insane but only mentally deficient (idiocy, imbecility, feeblemindedness).
1. Minority
RA 6809 (1989): An act lowering the age of majority from twenty-one to eighteen years.
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Effect on Contracts incapacity to give consent to a contract [Art 1327(2), CC] contracts entered into during lucid intervals are valid (Art. 1328, CC) restitution of benefits (Art 1399, CC) Effect on Crimes General rule: EXEMPTED from criminal liability Exception: acted during lucid interval Effect on Marriage may be annulled if either party was of unsound mind unless the such party after coming to reason, freely cohabited with the other [Art 45(2), FC] action for annulment of marriage must be filed by the sane spouse who had no knowledge of the others insanity; or by any relative/guardian of the insane; or by the insane spouse during a lucid interval or after regaining sanity [Art 47(2), FC]
penalty not lower than reclusion temporal (article 41, Revised Penal Code). offender is deprived of rights of parental authority, or guardianship, of marital authority, of the right to manage his property and of the right to dispose of such (Art 34, RPC) for the validity of marriage settlements, the participation of the guardian shall be indispensible (Art 123, CC)
6. Family Relations
justifying circumstance if acted in defense of person/rights of spouse, ascendants, descendants, brothers/sisters, and other relatives up to the 4th civil degree [Art 11(2), RPC] mitigating circumstance if acted in the immediate vindication of a grave offense/felony committed against his spouse, ascendants or relatives of the same civil degree [Art 12(5), RPC] incestuous and void marriages: 1) between ascendants and descendants of any degree; 2) between brothers and sisters, whether full or half-blood. (Art 37, FC) donations/grants of gratuitous advantage between spouses during the marriage shall be VOID, except moderate gifts during family occasions (Art 87, FC) descendants cannot be compelled to testify in a criminal case, against his parents and grandparents UNLESS: crime was against the descendant OR by one parent against the other (Art 215, FC) spouses cannot sell property to each other, except: 1) absolute separation is agreed upon in the marriage settlements 2) judicial separation of property (Art 1490, CC)
3. State of Being Deaf-Mute

cannot give consent to a contract if he/she also does not know how to write [Art 1327(2), CC] can make a valid WILL, provided: the contents of the same have either been read personally by him or communicated to him by 2 persons (Art 807, CC) cannot be a witness to the execution of a will (Art 820, CC)
4. Prodigality
Martinez v. Martinez, (1902) A spendthrift or a prodigal is a person, who, by excessive drinking, gambling, idleness or debauchery of any kind shall so spend, waste or lessen his estate as to expose himself or his family to want or suffering. The acts of prodigality must show a morbid state of mind. Note: It is not the circumstance of prodigality, but the fact of being under guardianship that restricts capacity to act.
7. Absence
Art. 390 (CC). After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years,
5. Civil Interdiction
It is an accessory penalty imposed upon persons who are sentenced to a principal
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an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391 (CC). The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Article 124, FC administration and enjoyment of the CPG shall belong to both spouses jointly in case of disagreement, husbands decision shall prevail, subject to recourse to the court by the wife for proper remedy if one spouse is incapacitated/unable to administer, sole powers of administration may be assumed by the other spouse. General Rule: This power does not include disposition/encumbrance. Exception: judicial authority or written consent of other spouse
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Chapter 2. Citizenship and Domicile
Chapter 2. Citizenship and Domicile

(asked in 75, 81, 87, 93, 05 and 08 bar exams)
I. WHO ARE FILIPINO CITIZENS II. DOMICILE A. REQUISITES OF DOMICILE B. KINDS OF DOMICILE
B. Kinds of Domicile:
1. Domicile of Origin Domicile of parents of a person at the time he was born. 2. Domicile of Choice Domicile chosen by a person, changing his domicile of origin. A 3rd requisite is necessary intention not to return to ones domicile as his permanent place. 3. Domicile by Operation of Law (i.e., Article 69, domicile of minor) Romualdez-Marcos vs. Comelec (1995) A married woman does not lose her domicile to her husband.
I. Who are Filipino Citizens?

1. Those who are citizens of the Philippines at the time of the adoption of the 1987 Constitution; 2. Those whose fathers or mothers are citizens of the Philippines; 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and 4. Those who are naturalized in accordance with law. (Art IV, 1, 1987 Philippine Constitution) NOTE: These have superseded the rules on citizenship enumerated in the Civil Code. Citizen = owes allegiance to the state and is entitled to its protection
II. Domicile
For Natural Persons: the place of their habitual residence (Art. 50, CC).
For Juridical Persons: the place where their legal representation is established, or where they exercise their primary functions, unless there is a law or other provision that fixes the domicile (Art. 51, CC). Domicile vs. Residence: While domicile is permanent (there is intent to remain), residence is temporary and may be changed anytime (there is no necessary intent to remain).
A. Requisites of Domicile
(Callego vs. Vera) 1. Physical Presence 2. Intent to remain permanently (animus manendi)
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Chapter 3. Marriage
Chapter 3. Marriage
I. DEFINITION AND NATURE OF MARRIAGE II. REQUISITES OF MARRIAGE A. ESSENTIAL REQUISITES B. FORMAL REQUISITES III. MARRIAGES SOLEMNIZED ABROAD IV. PRESUMPTION OF MARRIAGE
existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
I. Definition and Nature of Marriage

(asked in 91, 92 and 99 bar exams) Definition of Marriage (Art 1 FC)
What Who How Purpose Significance SPECIAL CONTRACT of permanent union Between a MAN and a WOMAN Entered into in accordance with LAW Establishment of CONJUGAL and FAMILY life FOUNDATION of the family and an INVIOLABLE SOCIAL INSTITUTION whose nature, consequences and incidents are governed by law and not subject to stipulations EXCEPT that marriage settlements may fix the property relations during the marriage within the limits provided by this code.
EXPENSES or other incidents that directly arose from the contract to marry can be claimed (cost of wedding preparations). (Wassmer v Velez) LOST WAGES arising from voluntary dismissal in anticipation of marriage can be sued for. (Tanjanco v CA) EXPENSES made for the renovation of an anticipated conjugal home can be sued for. (Piccininni v. Hajus-US Jurisprudence)
II. Requisites of Marriage

(asked in 76, 82, 89, 90, 99, 02, 04, and 07 bar exams)
A. Essential Requisites of Marriage

Essential Requisites: (LC) 1. Legal Capacity of the contracting parties, who must be a male and a female 2. Consent (of the parties) freely given in the presence of a solemnizing officer. (Art. 2 FC)
Breach of Promise to Marry As a general rule breach of promise to marry is not an actionable wrong (Tanjanco v CA, Wassmer v Velez) and cannot give rise to liability for damages in line with the principle of freedom of consent in marriage (Art 2(2) Family Code). (Reyes) However damages may be claimed based on the principles laid down in Art 19-21 & 2176 of the CC
Legal Capacity Male or female>=18, not under any impediments mentioned in Art 37 (incestuous marriage) & Art 38 (marriage against public policy), may contract marriage. (Art 5) Must be a male and a female Jones v Hallahan, (1973) Application for marriage license was denied since marriage is defined by law as a contract entered into between a man and a woman. Silverio v Republic, (2007) Changing of gender in ones birth certificate was denied, because doing such would allow marriage between persons of the same sex which is in defiance of the law, as marriage is a union between a man and a woman. Consent freely given People v Santiago, (51 Phil 68) A marriage entered into by a person whose real intent is to avoid prosecution for rape is void for total lack of consent. The accused did not intend to be married. He merely used such marriage to escape criminal liability.
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
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Chapter 3. Marriage
Absence & Defect of Essential Requisites

Effect Illustration Absence VOID - marriage entered into by a person <18 (Art 35 (1)) - marriage entered into by persons of the same sex (Jones v Hallahan) - marriage contracted through mistake of one contracting party as to the identity of the other (Art 35 (5)) Defect VOIDABLE - consent of either party was obtained through fraud, force, intimidation or undue influence (Art 45 (3) (4)FC)
5. Consul-general, consul or vice-consul may

solemnize marriages between citizens abroad. (Art 7,10 FC) Filipino
6. Municipal and City Mayors (LGC sec 444

and 455)
Marriage is void when solemnized by any person not legally authorized to perform marriages unless either or both parties believed in good faith that the solemnizing officer had legal authority to do so. (Art 35 (2)) Absence & Irregularity of Authority of a solemnizing officer
Absence VOID Irregularity No effect on validity but party responsible will be liable. lack of valid notification of both parties desiring a ceremony in a remote place was held to be only a mere IRREGULARITY (Navarro vs. Domagtoy 1996)
Effect
Illustration
B. Formal Requisites of Marriage

Formal Requisites: (AVC) Authority of Solemnizing Officer A Valid marriage License 3. Marriage Ceremony (Art 4 FC) 1. 2.
Marriage is void when solemnized by a priest not duly authorized by his Church to solemnize marriage. (Art 7 FC)
Authority of a Solemnizing Officer

Who may solemnize marriage: (JC-SPAMM) 1. 2. Incumbent member of the Judiciary within his jurisdiction. (Art 7 FC) Priest, Rabbi, Imam or Minister of any Church or Religious Sect. Must be: Duly authorized by his church or religious sect Registered with the civil registrar general Acting within the limits of the written authority granted to him by his church or religious sect. At least one of the contracting parties belongs to the solemnizing officers church or religious sect. (Art 7 FC) Ship Captain or Airplane Chief may solemnize a marriage in articulo mortis between passengers or crew members (Art 7,31 FC) A Military commander of a unit may solemnize marriages in articulo mortis between persons within the zone of military operation. (Art 7,32 FC)
Marriage License
1. 2.
Marriages Exempt from marriage license requirement (AREC)
Marriage in Articulo mortis (Art. 27, FC) Marriage in Remote and inaccessible places (Art. 28, FC) 3. Marriages by Muslims and Ethnic cultural minorities provided they are solemnized in accordance with their customs, rites or practices. (Art. 33, FC) 4. Marriage by parties who have Cohabited for at least 5 years without any legal impedement. (Art. 34, FC, Ninal v Badayog (2000))
3.
Absence License
&
Irregularity
of
Marriage
Effect
Absence VOID
4.
Illustration
Issuance of the Civil Registrar of a
Irregularity No effect on validity but party responsible will be liable. mere IRREGULARITIES in the marriage
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Chapter 3. Marriage
CERTIFICATE DUE SEARCH AND INABILITY TO FIND the application of a marriage license means its absence, thus rendering the marriage VOID. (Republic v CA) Before a marriage can be solemnized, a valid marriage license MUST FIRST BE PRESENTED, otherwise the marriage is VOID. (Moreno v Bernabe)
license, such as a typographical error, do not affect the validity of a marriage. (Alcantara v Alcantara)
counts as a valid ceremony. (Martinez v Tan, 12 Phil 731) Minimum requirements prescribed by law:(AP-PMS) 1. Appearance of contracting parties personally before the solemnizing officer (Art 3 FC) 2. Personal declaration that they take each other as husband and wife. (Art 3 FC) 3. Presence of at least two witnesses of legal age. (Art 3 FC) 4. The declaration shall be contained in the Marriage certificate. (Art 6 FC) 5. Marriage certificate shall be Signed by the contracting parties and their witnesses and attested by the solemnizing officer. (Art. 6, FC) (In a marriage in articulo mortis, when one or both parties are unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to write the name of said party, which shall be attested by the solemnizing officer. (Art 6, par. 2) SHALL be
Things to do at the local civil registrar: 1. File an application of marriage license at the proper local civil registrar. (Art. 11, FC) 2. Present birth or baptismal certificate. (Art. 12, FC) 3. If aged 18-21 years, present parental consent. (Art. 14, FC) 4. If aged 21-25, present parental advice. (Art. 15, FC) 5. If aged 18-25, present certificate of marriage counseling from your priest. (PD 965) 6. Pay the required fees. (Art 19, FC) 7. If foreigner, present certificate of legal capacity issued by diplomat or consular officials. (Art. 21, FC)
Places where marriage solemnized: (OCC)
1. Chambers of Judge or an open court 2. Church, Chapel or Temple 3. Office of the consul general, consul or vice consul Exception: 1. Marriages in articulo mortis 2. Marriages in remote places 3. Written request from both parties.
III.Marriages Solemnized Abroad

General rule: Marriages solemnized abroad in accordance with the laws in force in that country shall be valid in the Philippines. (Art 26 FC) Exceptions: Marriage between persons below 18 years old Art. 35(1) Bigamous or polygamous marriage Art. 35(4) Mistake in identity Art. 35 (5) Marriages void under Article 53 Art. 35 (6)
Marriage Ceremony No prescribed form or religious rite for the solemnization of marriage is required. o The couple's written agreement where they declare themselves as husband and wife, signed by them before a judge and two capable witnesses, even though it was independently made by them, still
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Chapter 3. Marriage
Psychological incapacity Art. 36 Incestuous marriages Art. 37 Marriage void for reasons of public policy Art. 38
IV. Presumption of Marriage

Presumption in favour marriage ( Art 220 CC) of a valid
In marriages of exceptional character, the existence of the marriage is presumed, even in the TOTAL ABSENCE of a marriage license. (Vda. De Jacob v CA, 1999) if a marriage certificate is missing, and all means HAVE NOT YET BEEN o EXHAUSTED to find it, then the marriage is presumed to exist (Sevilla v Cardenas, 2006) Absence of a marriage certificate is not proof of absence of marriage. To prove the fact of marriage, the following would constitute competent evidence: (1) the testimony of witnesses to matrimony; (2) the couples public cohabitation; and (3) birth and baptismal certificates of children born during the union. (Trinidad v CA, 1998)
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Chapter 4. Void Marriages

(asked in 75, 81, 83, 84, 86, 87, 90, 93, 84, 96, 99, 02, 04, 05, 06, and 08 bar exams)
I. GROUNDS II. PERIOD TO FILE ACTION OR RAISE DEFENSE III. EFFECTS OF NULLITY
9. Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate D. Article 38 (public policy) 10. Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree. 11. Between step-parents and stepchildren. Note: Stepbrothers and stepsisters can marry because marriages between them are not within the purview of the exception. 12. Between parents-in-law and children-in-law. 13. Between adopting parent and adopted child. 14. Between the surviving spouse of the adopting parent and the adopted child. 15. Between the surviving spouse of the adopted child and the adopter. 16. Between an adopted child and a legitimate child of the adopter. 17. Between adopted children of the same adopter. 18. Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. E. Article 44 (absentee spouse) 19. Both spouses of a subsequent marriage acted in bad faith in case where a previous spouse was an absentee Connected Provisions: Art. 41 (FC). A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
I. Grounds
Art. 4(1): The absence of any essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (a).
Void Ab Initio Marriages:

A. Article 35 (void from the beginning) 1. Contracted by any party below eighteen years of age even with the consent of parents or guardians 2. Solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. Note: Ones belief in good faith that the solemnizing officer has the required authority is a mistake of fact, and not of law. 3. Solemnized without license, except in marriages under exceptional circumstances 4. Bigamous or polygamous marriages not falling under Article 41 5. There is a mistake as to the identity of the other contracting party 6. Subsequent marriages that are void under Article 53 B. Article 36 (psychological incapacity) 7. Contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization C. Article 37 (incestuous) 8. Between ascendants descendants of any legitimate or illegitimate and degree,
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present must institute a summary 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. Note: Institution of a summary proceeding is not sufficient. There must also be a summary judgment. (BALANE) Art. 390 (CC). After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391 (CC). The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. NOTE: Only the deserted spouse can file or institute an action a summary proceeding for the declaration of presumptive death of the absentee (Bienvenido case) There must have been diligent efforts on the part of the deserted spouse to locate the absent spouse. These diligent efforts correspond to the requirement of the law for a wellfounded belief.
F. Article 53 (non-recording) 20. subsequent marriage of spouses where the requirements of recording under Art. 52 for void marriages shall not have been complied with
Presumptive Death
Although seven years is required for the presumption of death of an absentee in the Civil Code, Art. 41 of the Family Code makes an exception for the purpose of remarriage by limiting such requirement to four years. Art. 41 also limits the required four years in Art. 391 for absence under exceptional circumstances to only two years. The 2nd paragraph of Art. 41 also requires a summary proceeding for a declaration of presumptive death of the absentee for the validity of the subsequent marriage.
Judicial Declaration of Nullity

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Under the Civil Code (superseded by the Family Code), there was no need for a judicial declaration of nullity of a previous marriage for a subsequent marriage to be valid (People v. Mendoza). However, Article 40 of the FC now requires a final judgment to declare a previous marriage void for a subsequent marriage to be valid. (Terre v. Terre, Atienza v. Brillantes)
Terre v. Terre, (1998) A lawyer was disbarred for grossly immoral conduct by convincing the other party that a judicial declaration of nullity was not required and subsequently contracting another marriage while his first marriage was subsisting. Atienza v. Brillantes, (243 SCRA 32) A judges first marriage contracted in 1965 was void for not having a marriage license, but the requirement for a judicial declaration of nullity in Art. 40 applies for his subsequent marriage contracted in 1991.
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Apiag v. Cantero, (1997) Where both marriages were contracted prior to the effectivity of the FC, the requirement of Art. 40 does not apply to the second marriage where a right is already vested and which the FC cannot have retroactive effect. Judicial declaration of nullity of a marriage is now an absolute requirement: For the validity of any subsequent marriage For the case to be taken out of bigamy
Domingo v. CA, (1993) The judicial declaration of nullity can be invoked for purposes other than remarriage. Article 40 was interpreted as being a requirement for purposes of remarriage but not limited for that purpose. Separation of property is also a valid purpose for filing for a judicial declaration of nullity. Borja-Manzano v. Sanchez, (2001) Legal separation does not severe marriage bonds. Cohabitation under Art. 34 merely exempts the spouses from obtaining a marriage license, and is not met when there exists legal impediment to marry.
5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. 6. The essential marital obligations mist be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. 7. Interpretations given by the national Appellate Matrimonial tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. 8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance of the prosecuting attorney or fiscal and the SolicitorGeneral is no longer mandatory. Santos v. Bedia-Santos, (1995): Laid down 3 characteristics for determining psychological incapacity: gravity, antecedent, and incurability. Tsoi v. CA, (1997) Refusal of husband to have sex was interpreted to be PI. a man who can but wont is PI Marcos vs. Marcos (2000) Even the psychologically-incapacitated person can institute an action under Article 36. Republic vs. San Jose (2007) There is no requirement that the respondent be medically examined first. Antonio v. Reyes, (2006): pathological liar, Molina guidelines met.
Psychological Incapacity (Art. 36)

Republic v. Molina, (1997) 1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2. The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision. Note: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-1110-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion need not be alleged. The root cause may be proven by evidence in actual trial. 3. The incapacity must be proven to be existing at the time of the celebration of the marriage. 4. Such incapacity must also be shown to be medically or clinically permanent or incurable.
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Bigamous Marriages (Art. 41)

General Rule: Marriage contracted by any person during the subsistence of a previous marriage is void. Exception: If the first spouse has been absent for four consecutive years, or two years under extraordinary circumstances 1) absence 2) well-founded belief of spouse present that absent spouse is dead 3) judicial declaration of presumptive death (no prejudice to the effect o the reappearance of the absent spouse) Exception to the exception: When both parties to the subsequent acted in bad faith (Art. 44)
in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. (also reiterated in Carlos vs. Sandoval, 2008)
III.Effects of Nullity Effects of Termination of Bigamous Marriage (Art. 43 and 44):

1. Children conceived prior to termination considered legitimate its
II. Period to File Action or Raise Defense

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (as amended by R.A. 8533) The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect" has been deleted by Republic Act No. 8533 [Approved February 23, 1998]). It must be noted that under the new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003, nullity of the marriage can still be collaterally attacked. As to the parties allowed to file the action Enrico v. Heirs of Sps. Medinaceli (2007): Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and, hence, can only question the validity of the marriage of the spouses upon the death of a spouse
2. Property Regime dissolved and liquidated (party in bad faith shall forfeit his/her share in favor of the common children or if there are none, children of the guilty spouse by a previous marriage, and in case there are none, to the innocent spouse) 3. Donation propter nuptias remains valid, (but if the donee contracted marriage in bad faith, donations will be revoked) 4. Insurance benefits innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is irrevocable 5. Succession Rights Party in bad faith disqualified to inherit from innocent spouse, whether testate or intestate 6. Donations - If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked (Art. 44)
Effects of Other Void Marriages

2. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45 [Art. 50(1)] 3. Final judgment in such cases shall provide for the liquidation, partition, and distribution of the: a) properties of the spouses b) custody and support of the common children
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c) delivery of their presumptive legitimes unless such matters had been adjudicated in previous judicial proceedings [Art. 50(2)] all creditors (of the spouses/property regime) shall be notified of the proceedings for liquidation [Art. 50(2 and 3)]
Exception: a) children conceived or born before the judgment under Article 36 has become final and executory b) children conceived or born of subsequent marriages under Article 53 Nial v. Bayadog, (2000) Children of first marriage assailed the validity of the second marriage contracted by their father without a marriage license and after the latters death. void marriages can be attacked collaterally and do not prescribe De Castro v. Assidao-de Castro, (2008) Validity of marriage was attacked collaterally in an action for support for determining legitimacy of the child.
4. In the partition, the conjugal dwelling and lot shall be adjudicatedto the spouse with whom majority of the common children remain (Art. 102 and 129) [Art. 50(4)] 5. Presumptive legitimes, computed as of the date of the final judgment, shall be delivered in cash, property or sound securities - unless the parties, mutually agreed and judicially approved, had already provided for such [Art. 51(1)] - the children/guardian/trustee may ask for the enforcement of the judgment [Art. 51(2)] - the delivery of the presumptive legitimes shall not prejudice the ultimate successional rights, but the value of the properties already received shall be considered as advances on their legitime [Art. 51(3)] 6. Either of the former spouses may marry again AFTER compliance with the requirements of Article 52, otherwise, the subsequent marriage is void (Art. 53) Requirement (Art. 52) - recording in the appropriate civil registry AND registries of property: a) judgment of annulment/absolute nullity of marriage b) partition and distribution of the properties of the spouses c) delivery of the childrens presumptive legitimes - otherwise, these shall not affect third persons 7. Generally, children born or conceived within void marriages are illegitimate.
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Chapter 5. Voidable Marriages

(asked in 75, 76, 78, 83, 86, 90, 91, 93, 94, 95, 96, 97, 02, 03, 04, and 07 bar exams)
I. GROUNDS FOR ANNULMENT A. EXPLANATION B. WHO MAY FILE, PRESCRIPTION, RATIFICATION WHEN ONE SPOUSE IS ABSENT A. REQUIREMENTS FOR SUBSEQUENT MARRIAGE TO BE VALID WHEN PRIOR SPOUSE IS ABSENT B. EFFECT OF REAPPEARANCE OF ABSENT SPOUSE EFFECTS OF PENDING ACTION/DECREE VOIDABLE VS. VOID VOIDABLE VS. LEGAL SEPARATION JURISDICTION
disease, even if not concealed.* TOLENTINO Action to Annul: action in rem, concerns status of parties; res is relation bet parties or marriage tie; jurisdiction depends on nationality or domicile not the place of celebration
II.
A. Grounds for Annulment explained:

a) Lack of parental consent 18<=x<21 w/o parental consent Ratified upon free cohabitation upon reaching 21; mere transient sex inter NOT SUFFICIENT TOLENTINO: parents whose consent was absent may ratify before 21; this right can be waived Parental consent in sworn statement w/ 2 witnesses before any official adm of oath OR appear before Local City Registrar to accomplish written consent To marry SPECIFIC person, not just anyone b) Insanity mental incapacity or insanity is a vice of consent; insanity (1) of varying degrees, (2) curable being an illness, capable of ratification or convalidation, (3) has lucid intervals, (4) ground only for annulment in many countries can be ratified by sane partys cohabitation after insane is cured mere mental weakness not ground but if seen grave enough as in Art. 36 FC, may even be null & void intoxication, somnambulism (lack of mental capacity) = insanity must EXIST AT TIME of marriage not prior or subsequent law presumes SANITY, burden of proof on party alleging insanity c) Fraud only those enumerated in Art. 46 FC o non-disclosure of previous CONVICTION by final judgment involving MORAL TURPITUDE o concealment by wife pregnancy by other man o concealment of STD re nature & existing at time of marr o concealment of drug addiction, habitual alcoholism,
III. IV. V. VI.
b. Grounds for Annulment

(Article 45, FC) Marriage may be annulled for ff causes existing at time of marriage: P I F F I S P 1. One of the parties is 18 or above but below 21, and there is no parental consent. 2. Either party was of unsound mind (insanity). 3. The consent of either party was obtained through fraud (different from mistake in identity): a. through non-disclosure of a previous conviction of a crime involving moral turpitude; b. through concealment of the wife of the fact that she was pregnant by another man; c. through concealment of a sexually-transmitted disease, even if not serious or incurable;* d. through concealment of drug addiction, habitual alcoholism or homosexuality/lesbianism. (Art.46, FC) 4. The consent of either party was obtained through force, intimidation, or undue influence. 5. Either party is physically unable to consummate the marriage (impotence; this is different from sterility). 6. Either party has a serious and incurable sexually-transmissible
I F
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homosexuality, lesbianism existing at time of marriage No other misrepresentation or deceit of CHARACTER, HEALTH, RANK, FORTUNE OR CHASTITY shall constitute FRAUD TOLENTINO: fraud must relate to fact material to the marital relation; PRINCIPLE OF ENUMERATION; no other cases of fraud can be ground for annulment; INCLUSIO UNIUS EST EXCLUSIO ALTERIUS Conviction of Crime: requisites are o moral turpitude o conviction o penalty at least 2 yrs in prison Concealment of Pregnancy: o fraud against very essence of marriage; important objects of marriage is procreation of children CERTAINTY KNOWN TO PARENTS as pure offspring of union not ALIEN TO HIS BLOOD LINEAGE o Husband knew of pregnancy cannot be annulled. After less than 3 mos a baby is born, SC refused to annul because of advanced stage of pregnancy and must be patent to husband (Buccat v Mangonon) o coitus before marriage & pregnant at time of marriage although he may not be the father, marriage cannot be annulled because man knows wife is unchaste (UNCLEAN HANDS!): Prof. Balane: This is an isolated case and is not doctrinal. Marriage cannot be annulled on ground that wife concealed the fact that she had been lewd & corrupt and had illegitimate child (Shrady v Logan) maybe ratified upon cohabitation after knowledge of fraud
be expected to know, by mere looking, whether or not she was pregnant at the time of the marriage. Corpuz v. Ochoterena, (2004) In a legal separation or annulment case, a prior collusion investigation by the prosecuting attorney is a condition sine qua non for further proceedings if the defendant fails to answer. A certification by the prosecutor that he was present during the hearing and even cross-examined the plaintiff does not suffice to comply with the mandatory requirement. *STD: Art. 45 vs. Art. 46
Art. 45 STD Ground annulment for Art. 46 STD The STD is a type of fraud which is a ground for annulment Must be concealed Need not be serious nor incurable The STD itself is the ground for annulment
Does not have to be concealed Must be serious and incurable It is the concealment that gives rise to the annulment
Effect of Cure: Recovery or rehabilitation (in STD, drug addiction, habitual alcoholism) will NOT BAR ACTION for annulment; defect not disease but on CONSENT w/c was vitiated thru fraud d) Force, intimidation, undue influence VIOLENCE when order to wrest consent, serious or irresistible force is employed (Art. 1335, CC) INTIMIDATION when compelled by reasonable or well-grounded fear imminent evil upon the person, property, of the spouse, descendants, etc, to give his consent DEGREE OF INTIMIDATION: age, sex, condition of person borne in mind A threat to enforce claim thru competent authority, lawful or not, does not vitiate consent VIOLENCE or INTIMIDATION annul obligation even if by third person (Art. 1336, CC) UNDUE INFLUENCE when improper advantage of his power over the will of another, depriving freedom of choice. (Art. 1337, CC) o EXAMPLE: confidential, family relations, suffering from mental weakness, in financial distress
Buccat v Buccat, 72 Phil. 19 It held that it is unbelievable that the wife could have concealed the fact that she was 6 months pregnant at the time of the marriage. Annulment not granted. Aquino v Delizo, 109 Phil. 21 The Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. It argued that since Delizo was naturally plump, Aquino could hardly
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Threat to FILE A CASE OF immorality on bar candidate where he does not marry a girl who he has impregnated does not vitiate consent (Ruiz v Atienza) Threat or intimidation as no to act as FREE AGENT; threatened of armed demonstrations by brother is ANNULLABLE (Tiongco v Matig-a) Man rapes a girl, marries her & has no intention to live with the girl; marriage is annullable (People v Santiago) Committee added undue influence, maybe compelled to enter out of REVERENTIAL FEAR e.g., fear of causing distress to parents, grandparents, etc
RELATIVE IMPOTENCY: may now be invoked becuase there are cases where one is impotent with respect to his spouse but not with other men or women. EXAMPLE: penile erection to other women possible; unusually large penis can fit with other abnormally large vagina
f)
e) Impotency refers to lack of power to COPULATE not mere sterility must exist at time of marr, must be continuous, must be incurable; thus if removable by operation, NOT ANNULLABLE (Sarao v Guevarra, CA, 40 O.G. 155 Supp. 263) only potent spouse can file for action for annulment & clean hands both spouses impotent, cannot be annulled bec neither spouse is aggrieved impotency due to old age cannot be annulled POTENCY PRESUMED; party who alleges impotency has burden of proof (Jimenez v Canizares) Although potency is presumed, there is a doctrine in England called TRIENNIAL COHABITATION that if wife remains virgin after 3 yrs, husband presumed impotent & H has burden to prove otherwise (Tompkins v Tompkins) REFUSAL of wife to be examined DOES NOT PRESUME impotency bec Filipino girls are inherently shy & bashful; TC must order physical examination bec w/o proof of impotency, she is presumed potent; to order her for phys exam does not infringe consti rights against selfincriminating (Jimenez v Canizares) Villanueva vs. CA (2006): Absence of cohabitation is not a ground for annulment. NOTE: if continued refusal, can be held for CONTEMPT & ordered to be confined in jail until she does so
Sexually-transmissible disease serious and incurable same as incurable impotency Ratification or Convalidation of Voidable Marriages: by cohabitation or prescription cannot be ratified or convalidated: 1. prior subsisting marriage; would result in anomalous relationship 2. vitiated by impotency remains as long as afflicted 3. vitiated by affliction of STD remains as long as afflicted 4. Affliction of STD is unknown to the other spouse (BALANE) 5. The other spouse must also be free from a similar STD. (BALANE) 2 & 3 prescribe w/in 5 yrs by Art. 47(5)
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B. Who may File, Prescription, Ratification

Ground (Art. 45) Lack of parental consent Who can file (Art. 47) 1. Underage party 2. Parent or guardian 1. Sane spouse with no knowledge of the others insanity 2. Legal guardian of insane party 3. Insane party Prescription (Art. 47) 1. 5 years after attaining 21. 2. Before child reaches 21. 1. Any time before the death of insane party 2. During lucid interval or after regaining sanity, and before death Five years after discovery of fraud Five years after disappea-rance of force or intimidation Five years after marriage Five years marriage after Ratification (Art. 45) Free cohabita-tion after attaining age of 21. Free cohabita-tion of insane party after coming to reason
Insanity
Fraud Force, intimidation, undue influen-ce Impotence STD
Injured party (defrau-ded party) Injured party
Healthy party Healthy party
Free cohabita-tion after having full knowled-ge of fraud Free cohabita-tion after the force has ceased or disappered Deemed ratified when action prescribes Deemed ratified when action prescribes
II. Marriage When One Spouse Is Absent A. Requirements for Subsequent Marriage to be Valid When Prior Spouse is Absent:
(Art. 41, FC) 1. The prior spouse had been absent for 4 consecutive years, or 2 years in cases under Art. 391 CC. 2. The spouse present has a wellfounded belief that the absent spouse was already dead. 3. The spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.
Exception: It is automatically terminated by the recording of the affidavit of reappearance of the absent spouse. Exception to the exception: If there is a judgment annulling the previous marriage or declaring it void ab initio. (Art. 42, FC) TOLENTINO Status of Subsequent Marriage: generally considered bigamous & void EXCEPT par2 of this article; good faith w/o falling under par 2 will render marriage VOID When Voidable: must act in GOOD FAITH and 1) absent spouse not heard from 7 consecutive yrs 2) although absent for less than 7 yrs, generally considered dead 3) presumed to be dead after 4 yrs when occurrence of death in A391 Judicial Declaration Unnecessary: purpose of validity of marriage, missing spouse need not be judicially declared an absentee, enough required period elapsed
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B. Effect of Reappearance of Absent Spouse:

General rule: The subsequent marriage remains valid.
from time the absentee was last heard not from judicial declaration. After 7 years, presumptive death arises w/o need for judicial declaration Prior Voidable Marriage: UNLESS final judgment or dissolved by death, subsequent marriage NULL & VOID Status of Subs Marriage: during subsisting marriage, remarriage is BIGAMOUS & VOID. EXCEPT: absentee four years or for two under special circumstances absence gives rise to presumption of death w/c is required to be declared in SUMMARY PROCEEDING to enable to remarry Period of Absence: GENERALLY, under CC, 7 years req for decl of presump death For REMARRIAGE, reduced to 4 years by FC EXCEPT in cases, CC 4 years & FC 2 years IF ON BOARD VESSEL lost at sea voyage, airplane ARMED FORCES in war DANGER OF DEATH under other circumstances, existence not known Good Faith: PERIOD of absence for PRESUMPTIVE DEATH is MANDATORY thus cannot be shortened by good faith and if be done so will be VOID Burden of Proof: two successive marriages, presumption on validity of 2nd marriage and burden on party ATTACKING VALIDITY OF 2ND MARR. PRESUMPTION in favor of INNOCENCE prevails over PRESUMPTION of CONTINUANCE OF LIFE OF 1ST SPOUSE & MARITAL RELATIONS. Meaning of Absent spouse Absent for 4 years having well-founded belief of death period of 4 years reduced to 2 years in danger of death in A391 CC where: c. on board vessel lost at sea or airplane d. (includes all kinds of watercraft & aircraft) e. armed forces in war f. (all military operations involving armed fighting; doe not apply to nurses, doctors, reporters or cameramen)
g. danger of death h. (includes earthquakes, fires, explosions, dangerous expeditions, landslides, volcanic eruptions) 2-year period counted from event of death presumed
Republic v. Bermudez-Lorino, (2005) The RTC rendered a decision declaring the presumptive death of respondents absent spouse based on Art. 41, FC. The Republic appealed the decision to the CA. Applying Art. 247 FC, the SC ruled that the CA did not have jurisdiction over the appeal because summary proceedings are immediately final and executory, and therefore unappealable.
III.Effects of Actions/Decree
(Art. 49, FC)
Pending
1. The court shall provide for the support of the spouses, 2. The custody of the common children, giving paramount consideration to their moral and material welfare, their choice of parent with whom they wish to remain. 3. The court shall also provide for visitation rights of other parent. No child under 7 years shall be separated from the mother unless there is a compelling reason to do so. To prevent collusion between the parties, fabrication or suppression of evidence, the prosecuting attorney or fiscal shall appear on behalf of the State. (Art. 48, FC)
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IV. Voidable vs. Void Marriage

Nature Convalidation Effect on property Legiti-macy of children Voidable Marriage VALID until annulled by court CAN be convalidated by prescription or free cohabitation ACP exists unless another system is instituted through marriage settlement Children are LEGITIMATE if conceived before decree of annulment Void Marriage INEXISTENT from the beginning CANNOT be covalidated No Community Property, only Co-ownership General rule: Children are ILLEGITIMATE (Art. 165) Exception: In void marriages by reason of psychological incapacity (Art. 36) or nonpartition of properties in a previous marriage (Art. 53), children are considered LEGITIMATE May be attacked DIRECTLY or COLLATERALLY, except for purpose of remarriage (there must be JDN) May still be impugned after death of parties
How to impugn
Can only be attacked DIRECTLY (there must be annulment decree) Can no longer be impugned after death of parties
Effect of death of parties
V. Voidable vs. Legal Separation

Voidable Marriage circumstances existing @ time of marriage terminates marital bond once final, cannot set aside to restore marital relation Legal Separation causes after the celeb of marriage does not terminate MB marital relations can resume upon reconciliation
VI. Jurisdiction
Tamano v. Ortiz, (1998) PD No. 1083 (Code of Muslim Personal Laws of the Philippines) does not provide for a situation where the parties were married both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws. Hence, the Regional Trial Courts have jurisdiction over such cases.
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Chapter 6. Legal Separation, Divorce, and De Facto Separation
Chapter 6. Legal Separation, Divorce and De Facto Separation

I. GROUNDS FOR LEGAL SEPARATION II. DEFENSES III. WHEN TO FILE/TRY ACTIONS
A. PRESCRIPTION B. RECONCILIATION PERIOD C. ATTEMPTS ON RECONCILIATION D. CONFESSION E. COLLUSION IV. EFFECTS OF FILING PETITION FOR LEGAL SEPARATION V. EFFECTS OF DECREE FOR LEGAL SEPARATION VI. RECONCILIATION A. HOW DONE B. EFFECTS OF RECONCILIATION VII. DIVORCE VIII. DE FACTO SEPARATION
c. Drug addiction or habitual alcoholism may be supervening. H 6. Lesbianism or homosexuality of respondent. Same as rules on drug addiction 7. Contracting by respondent of a subsequent bigamous marriage, whether in the Philippines of abroad. 8. Sexual infidelity or perversion. a. No conviction is required. 9. Attempt on the life of petitioner by respondent. a. There is no need for criminal conviction. Only a preponderance of evidence is required. 10. Abandonment of petitioner by respondent without justifiable cause for more than one year.
I L
I. Grounds for Legal Separation

(asked in 75, 76, 79, 80, 82, 89, 94, 96, 97, 02, 03, 06, and 07 bar exams) (Art. 55, FC) [V A P I D H B I L A ] Note: The grounds for legal separation are exclusive. V 1. Repeated physical violence or grossly abusive conduct directed against petitioner, a common child, or a child of the petitioner. 2. Physical violence or moral pressure to compel petitioner to change religious or political affiliation. 3. Attempt of respondent to corrupt or induce petitioner, a common child, or child of petitioner, to engage in prostitution or connivance in such corruption or inducement. 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned (executive pardon, not pardon from offended party). 5. Drug addiction or habitual alcoholism of respondent. a. When it existed from the time of celebration, and concealed from petitioner, can be a ground for annulment of marriage. b. When it occurred only after the marriage, it is only a ground for legal separation, whether concealed or not.
Cases: Gandioco v Pearanda (1989) In sexual infidelity as a ground for legal separation, there is no need for prior conviction for concubinage, because legal separation only requires a preponderance of evidence, as opposed to proof beyond reasonable doubt required in concubinage.
Lapuz Sy v. Eufemio, (1972) The action of the plaintiff in filing for legal separation does not survive after her death. Death of either spouse dissolves the marriage. An action for legal separation is purely personal between the spouses. Dela Cruz. v. Dela Cruz 22 SCRA 333 Abandonment is not mere physical abandonment but also financial and moral desertion. There must be an intention never to return.
II. Defenses
Grounds for denying legal separation (Art. 56, FC) [4CMRPD] 1. Condonation by aggrieved party 2. Consent by aggrieved party to the commission of the offense
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3. Connivance between parties in the commission of the offense 4. Mutual guilt in ground for legal separation 5. Collusion between parties to obtain decree of legal separation 6. Prescription of action for legal separation (5 years from occurrence of the cause of action) 7. Death of either party during pendency of action (Lapuz-Sy v Eufemio, 1972) 8. Reconciliation of parties during pendency of action (Art. 66 par.1)
written agreement between the parties, the court shall designate one of them or a third person to administer the ACP or CPG. (Art. 61, par. 2, FC) 3. Custody of children The court shall give custody of children to one of them, if there is no written agreement between the spouses. It shall also provide for visitation rights of the other spouse. (Art. 62, cf. Art. 49. FC)
III.
When to File/Try Actions

from
V. Effects of Separation
Decree
for
Legal
A. Prescription: Action prescribes in five years occurrence of cause (Art. 57, FC)
1. The spouses can live separately (Art. 63. FC) 2. The ACP of CPG shall be dissolved and liquidated, and the share of the guilty spouse shall be forfeited in favor the common children, previous children, or innocent spouse (Art. 63. cf. Art. 42, par. 2). 3. Custody of the minor children shall be awarded to the innocent spouse (Art. 63. FC) 4. Guilty spouse shall be disqualified from inheriting from innocent spouse by intestate succession. The provisions in favor of the guilty party in the will of the innocent spouse shall also be revoked by operation of law. (Art. 63, FC)
B. Reconciliation Period: Action cannot be tried before six months have elapsed since the filing of the petition (Art. 58. FC) C. Attempts on Reconciliation: Action cannot be tried unless the court has attempted to reconcile the spouses, and determined that despite such efforts, reconciliation is highly improbable (Art. 59, FC) D. Confession: No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 60, par. 1. FC) Note: Art. 60 par. 1 applies only if the judgment was based solely on the stipulation of facts. Thus, if other grounds were used, Art. 60 par.1 is not applicable. (BALANE) E. Collusion: The court shall assign the prosecuting attorney or fiscal to make sure that there is no collusion between the parties, and that evidence is not fabricated or suppressed (Art. 60, par. 2, FC)
5. Donation propter nuptias in favor of the guilty spouse may be revoked (Art. 64. FC) 6. Innocent spouse may also revoke designation of guilty spouse as beneficiary in an insurance policy, even if such stipulations are irrevocable (Art. 64. FC). 7. Obligation for mutual support ceases, but the court may order the guilty spouse to support the innocent spouse. (Art. 198, FC) 8. The wife shall continue to use the surname of the husband even after the decree for legal separation. (Art. 372, CC)
IV. Effects of Filing Petition for Legal Separation (LAC)

1. The spouses are entitled to separately (Art. 61, par. 1. FC). live
2. Administration of Community or Conjugal Property If there is no
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VI. Reconciliation
A. How done: Should the spouses reconcile, they should file a corresponding joint manifestation under oath of such reconciliation. (Art. 65, FC) B. Effects of Reconciliation: 1. Proceedings for legal separation shall be terminated at whatever stage. (Art. 66, FC) 2. If there is a final decree of legal separation, it shall be set aside. (Art. 66, FC) 3. The separation of property and forfeiture of share of guilty spouse shall subsist, unless the spouses agree to revive their former property regime or to institute another property regime. ( Art. 66 cf. Art. 67, FC) 4. Joint custody of children is restored. 5. The right to intestate succession by guilty spouse from innocent spouse is restored. 6. The right to testamentary succession depends on the will of the innocent spouse.
Valid Foreign Divorce: 1. valid marriage between a Filipino citizen and a foreigner 2. divorce is validly obtained by the alien spouse 3. alien spouse becomes capacitated to remarry Result: the Filipino spouse shall likewise have the capacity to remarry under Philippine law Van Dorn v. Romillo, (1985) Before the effectivity of the FC, the SC applied Article 15 of the CC, from the foreigners perspective, to decree the validity of a divorce with respect to the Filipino spouse to prevent the unjust result to the Filipino spouse as the alien spouse is already capacitated to remarry. Quita v. Dandan, (1998) Time of obtaining foreign citizenship is necessary to determine validity of divorce obtained by the spouse who applied for foreign citizenship. At that time, he/she is no longer bound by Philippine domestic law. Llorente v. CA, (2000) A 2nd marriage obtained by a Filipino who is already a US citizen at the time of the divorce and the remarriage makes the 2nd marriage completely valid. Garcia v. Recio, (2001) Philippine courts cannot take cognizance of foreign laws. Foreign law regarding the validity of divorce obtained must be proven as a fact to be valid in this jurisdiction. Republic vs. Orbecido, (2005) The period of reckoning to determine citizenship for the purpose of the application of Art.26 par.2 is the time of securing a divorce.
VII.
Divorce
(asked in 87, 90, 96, 97, 99, 02, 06 bar exams) General Rule: Divorce is not allowed in the Philippines and even for Filipinos abroad. Exception: Foreign and Muslim Divorces.
1. Foreign Divorces
Art. 15 (CC). Laws relating to family rights and duties, or to the status, condition and legal capacity of the persons are binding upon citizens of the Philippines, even though living abroad.
2. Muslim Divorces
Presidential Decree 1083 Muslim Personal Laws) (Code of
The nationality theory of jurisdiction applies to personal rights. Effect: Filipinos living abroad could not obtain a valid divorce even in countries where divorce is legally permissible.
Art. 26(2) (FC). Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippines law.
7 forms of muslim divorces (Art. 45) 1. talaq- repudiation of the wife by the husband 2. ila- vow of continence by the husband 3. zihar- injurious assanilation of the wife by the husband 4. lian- acts of imprecation 5. khul- redemption by the wife
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6. tafwid- exercise by the wife of the delegated right to repudiate 7. faskh- judicial decree Grounds for faskh (Art. 52) 1. neglect or failure of the husband to provide support for the family for at least 6 consecutive months 2. Conviction of the husband by final judgment sentencing him to imprisonment for at least one year 3. Failure of the husband to perform for six months without reasonable cause his marital obligation in accordance with this code 4. Impotency of the husband 5. Insanity or affliction of the husband with an incurable disease which would make the continuance of the marriage relationship injurious to the family 6. Unusual cruelty of the husband as defined under the next succeeding article 7. Any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of the wife or the proper wali. Effects of Irrevocable Talaq or Faskh (Art 54) 2. The marriage bond shall be severed and the spouses may contract another marriage 3. The spouses shall lose their mutual rights of inheritance 4. The custody of children shall be determined in accordance with Article 78 of the code 5. The wife shall be entitled to recover from the husband her whole dower in case the talaq has been affected after the consummation of the marriage, or one-half thereof if effected before its consummation 6. The husband shall not be discharged from his obligation to give support in accordance with Article 67 7. The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved and liquidated.
VIII. De Facto Separation

Rules applicable to De Facto Separation:
Art. 100 (FC). The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. (3a, Act No. 2710) Art. 127. These donations are governed by the rules on ordinary donations established in Title III of Book III, except as to their form which shall be regulated by the Statute of Frauds; and insofar as they are not modified by the following articles. (1328a) Art. 239. The family home shall not be subject to payment of the debts of the deceased, unless in his will the contrary is stated. However, the claims mentioned in Article 232 shall not be adversely affected by the death of the person who has established the family home. Art. 242. The recording in the Registry of Property of the declaration referred to in the two preceding articles is the operative act which creates the family home. Art. 246. No declaration for the extrajudicial establishment of the family home shall be recorded in the Registry of Property if the estimated actual value of the building and the land exceeds the amount stated in Article 231. Art. 247. When a creditor whose claim is not mentioned in Article 243 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home of the judgment debtor is worth more than the amount mentioned in Article 231, he may apply to the Court of First Instance for an order directing the sale of the property under execution.
Perez v. CA, (1996) Applicability of the tender years presumption of article 213 to de facto separation; compelling reasons mentioned: neglect, abandonment, unemployment and immorality, habitual drunkenness, drug addiction, maltreatment of child, insanity, communicable disease
Yasin v. Sharia District Ct, (1995) After obtaining a muslim divorce, a woman may use her maiden name without need for judicial proceeding because such is her legal name.
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Chapter 7. Rights and Obligations Between Husband and Wife
Chapter 7. Rights and Obligations Between Husband and Wife

(asked in 75, and 84 bar exams)
I. OBLIGATION OF SPOUSES II. RIGHTS OF SPOUSES III. USE OF SURNAME
III.Use of Surname
Married Women: (Art. 370, CC)
I. Obligation of Spouses
(Arts. 68-71, FC) 1. Live together (cohabitation Art. 68) Exemption: One spouse living abroad for valid and compelling reasons Exemption to Exemption: Incompatibility with the solidarity of the family (Art. 69, Par. 2) 2. Observe mutual love, respect, and fidelity 3. Render mutual help and support (Art. 68) 4. Fix the family domicile. In case of disagreement, the court shall decide. (Art. 69, Par. 1) 5. Jointly support the family. (Art. 70) 6. Manage the household. (Art. 71)
A married woman may use: Her maiden first name and surname and add her husband's surname, or Her maiden first name and her husband's surname or Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. o Yasin v. Sharia District Court, (1995) The woman only has an option and not a duty to use the surname of her husband, as provided for in Art. 370, CC. Moreover, when her husband dies, the woman can revert to her old name without need for judicial declaration. Widows:
A widow may use the deceased husbands surname as though he were still living. (Art. 373, CC) Mistresses:
II. Rights of Spouses

(Arts. 72-73, FC) In case the other spouse neglects his or her duties or commit acts which tend to bring danger, dishonor or injury to the family, the aggrieved party may apply the court for relief. (Art. 72) Either spouse may exercise any legitimate profession, without need for consent of the other. The other spouse may only object on valid, serious, and moral grounds. In case of disagreement, the Court shall decide whether (1) the objection is proper, and (2) benefit has accrued to the family before OR after the objection. If BEFORE, enforce obligation against the separate property of spouse who has not obtained consent. If AFTER, enforce obligation against community property (Art. 73)
o Legamia v. IAC (1984) The Supreme Court allowed the mistress to use her live-in partners name, since everyone already knew that she was a mistress, so as to avoid confusion. Divorcees
o Tolentino v. CA (1988) A divorced woman may continue using the surname of her former husband. Philippine laws are silent in this issue. Moreover, there is no usurpation as she never represented herself as Mrs. Arturo Tolentino after the divorce, but simply as Mrs. Consuela David-Tolentino.
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Chapter 8. Property Relations Between Spouses

I. GENERAL PROVISIONS II. DONATIONS BY REASON OF MARRIAGE III. ACP A. IN GENERAL B. WHAT CONSTITUTES COMMUNITY PROPERTY C. CHARGES UPON THE ACP D. ADMINISTRATION, OWNERSHIP AND DISPOSITION OF THE ACP E. DISSOLUTION OF THE ACP F. LIQUIDATION OF ASSETS AND LIABILITIES IV. CPG A. WHERE IT APPLIES B. HUSBAND AND WIFE PLACE IN COMMON FUND C. EXCLUSIVE PROPERTIES OF THE SPOUSES D. WHAT CONSTITUTES THE CPG E. RULES F. CHARGES UPON CPG G. ADMINISTRATION OF THE CPG H. DISSOLUTION OF THE CPG I. LIQUIDATION OF ASSETS AND LIABILITIES V. SEPARATION OF PROPERTIES DURING MARRIAGE VI. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE
Exceptions: (Art. 80, FC) Where both spouses are aliens As to the extrinsic validity of contracts Contrary stipulation Requirements for Marriage Settlements: (Art. 77, FC) Must be in writing (public or private) Signed by the parties Executed before the celebration of the marriage Must be registered in local civil registry to affect third persons (If not registered, will not prejudice third persons, ACP will apply) If party needs parental consent (age 1821), parent/guardian must be a party to the settlement (Art. 78) If party is under civil interdiction or other disability (not including insanity), court appointed guardian must be a party (Art. 79) General Rule: All modifications to the marriage settlement must be made before the marriage is celebrated. (Art. 76) Exceptions: Legal Separation (Art. 63 (2), FC) The property regime is dissolved. Revival of the former property regime upon reconciliation if the spouses agree (Art. 66 (2)) A spouse may petition the court for: Receivership Judicial separation of property, or The authority to be the sole administrator of the conjugal partnership If the other spouse abandons the other without just cause or fails to comply with his or her obligations to the family. (Art. 128) Judicial Dissolution (Arts. 135 and 136) Furthermore: Marriage settlements are considered ACCESSORY to the marriage Stipulations in consideration of future marriage and donations will be void if the marriage does NOT take place. (Art. 81, FC)
I. General Provisions
(asked in 76, 86, 91, 92, 94, 95, 96, 97 and 05 bar exams) Order to be followed: (Arts. 74, 75, FC): Marriage settlements before marriage spouses can agree to whatever regime they want, be it ACP, CPG, complete separation or any other property regime to be agreed upon prior to the celebration of the marriage. Family Code If there are no marriage settlements, or if the regime agreed upon is void, the Absolute Community of Property will be followed Local Customs General Rule: (Art. 80, FC) Property relations between Filipino spouses are governed by Philippine laws, regardless of the place of marriage and their residence (Nationality Rule). Hence: The rule that ACP is the default mode of property relations absent any marriage settlement applies to all Filipinos, regardless of the place of the marriage and their residence.
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II. Donations by Reason of Marriage

Requisites of donations propter nuptias: (Art. 82, FC) 1. Made before the celebration of marriage. 2. Made in consideration of the marriage. 3. In favor of one or both spouses. 4. The donor must be one of the betrothed or any third person. Donations excluded: Ordinary wedding gifts given after the celebration of the marriage Donations in favor of future spouses made before marriage but not in consideration thereof Donations made in favor of persons other than the spouses even if founded on the intended marriage Who may donate: 1. spouses to each other 2. parents of one or both spouses 3. 3rd persons to either or both spouses Solis v. Barroso, (1928) Moreover, in donations propter nuptias, the marriage is really a consideration but not in the sense of giving birth to the obligation. There can be a valid donation even if the marriage never took place. However, the absence of marriage is a ground for the revocation of the donation. Mateo v. Lagua, (1969) Donations propter nuptias are without onerous consideration, marriage being merely the occasion or motive for the donation, not its cause. Being liberalities, they remain subject to reduction for inofficiousness upon the donors death, if they should infringe the legitime of a forced heir. Rules to Follow in Donation Propter Nuptias: 1. Family Code provisions (Arts. 82-87) 2. Ordinary Donation provisions (Art. 83, FC; Title III of Book III of the NCC) 3. Provisions on testamentary succession and the formalities of wills for donations on future property (Art. 84, par. 2) Distinguished from Ordinary Donations:
DONATIONS PROPTER NUPTIAS Does not require express acceptance May be made by minors (Art. 78) ORDINARY DONATIONS Express acceptance necessary Cannot be made by minors
May include future property If present property is donated and property is not absolute community, limited to 1/5 (Art. 84) Grounds for revocation - In Art. 86
Cannot include future property No limit to donation of present property provided legitimes are not impaired Grounds for revocation - in donation laws
RULES: a. Before Marriage

General Rule: Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void) (Art. 84, FC) Exception: If they are governed by ACP.
b. During Marriage
General Rule: Spouses cannot donate to each other, directly or indirectly (donations made by spouses to each other during the marriage are void) (Art. 87, FC) Exception: Moderate gifts on the occasion of any family rejoicing. Matabuena v Cervantes, (1971) The donation between common-law spouses falls within the provision prohibiting donations between spouses during marriage. Harding v. Commercial Union, (1918) The prohibition on donations can only be assailed by persons who bear such relation to the parties or the property itself, that their rights are being interfered with. Here, the insurance company of the donated car cannot assail the validity of the donation. In addition, the codal exception of moderate gifts depend on the income class of the spouses and a car could be considered a moderate gift that does not infringe the prohibition of donation between spouses. Sumbad v. CA, (1999) The donation made by a man to a woman was held valid because no proof was shown that they were still living in a common-law relationship at the time of the donation.
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Donation of Property Encumbrances:
Subject
to
regime is the Conjugal Partnership of Gains (CPG). Waiver of Rights: (Art. 89, FC) General Rule: NOT ALLOWED Exceptions: 1. When there is judicial separation of property 2. When there is legal separation 3. When the marriage is dissolved (by death of one of the spouses) 4. When the marriage is annulled Supplementary Rules to Follow: Co-ownership (Art. 90, FC)
1) Are considered valid. 2) In case of foreclosure... 1. if property value < obligation, donee shall not be liable 2. if property value > obligation, donee shall be entitled to the excess (Art. 85, FC) Grounds for Revocation of Propter Nuptias (Art. 86, FC) Donation
1. If the marriage is not celebrated or judicially declared void ab initio, except donations made in settlements. 2. When the marriage takes place without the consent of the parents or guardians, as required by law. 3. When the marriage is annulled, and the donee acted in bad faith. 4. Upon legal separation, if the donee is the guilty spouse. 5. If there is a resolutory condition, and it is not complied with. 6. When donee has committed an act of ingratitude: (Art. 765, CC) a. An offense against person or property of donor, or his wife or children under parental authority. b. An imputation to the donor of any criminal offense, or any act involving moral turpitude, even if proven, unless the crime is committed against the donee, his wife or children under his authority. c. Refusing to support the donor, if he/she is legally required to do so. *The action for filing for revocation of donation prescribes.
B. What Constitutes Property
Community
What it consists: All the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (Art. 91, FC) Under the ACP, spouses cannot exclude specific properties from the regime.
What is Excluded (BGM): (Art. 92, FC) 1. Properties acquired by a gratuitous title, i.e. donation, inheritance by testate and intestate succession, including the fruits of such properties EXCEPT: When it was expressly provided by the donor or testator that the property shall form part of the ACP 2. Properties for personal use EXCEPT: Jewelry - they form part of the ACP 3. Properties acquired before the marriage, for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage). Presumption: All properties acquired during the marriage form part of the ACP, unless it be proven that they are excluded. (Art. 93, FC)
III.Absolute Community of Property A. In General

(Asked in 98 and 07 bar exams) When it commences: At the precise moment of the celebration of the marriage (Art. 88, FC). However, if the marriage is celebrated before the Family Code took effect (1988), the default property
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C. Charges Upon the ACP

(Art. 94, FC): (asked in 76 bar exam) (4 debts, 2 taxes, 2 expenses, support, donation) 1. Support Spouses o Even if not living together except when a spouse leaves conjugal home without just cause o Even during pendency of action for legal separation or annulment of marriage Common children Legitimate children of previous marriage o Illegitimate children - follow the provisions on Support and (9) 2. Debts and Obligations Contracted During Marriage Either by both spouses or one of them, with the consent of the other. In (2) and (3), creditors need not prove that the debts benefited the family. 3. Debts Contracted by one Spouse Without Consent of the other ACP liable only to the extent that the debt benefited the family. 4. Tax, Liens, Repairs on Property Includes both major repairs Community and minor
9. Ante-Nuptial Debts not under (7), Support of Illegitimate Children, Liabilities of Either Spouse Arising from Crime or Quasi-Delict - Only ff the debtor-spouse has no exclusive property or his or her property is insufficient. - The payments by the ACP are deemed advances to be deducted from the share of the guilty spouse upon the liquidation of the absolute community. 10. Expenses of Litigation between Spouses - Except when suit is groundless If community property is insufficient except in (9), spouses are solidarily liable for the unpaid balance from their separate properties. Gambling losses shall be borne by the losing spouses separate property, winnings shall accrue to the community property. (Art. 95, FC)
D. Administration, Ownership Disposition of ACP
and
5. Taxes and Expenses for Mere preservation of Separate properties Applies only to separate properties by either spouse being used by the family, not those that do not benefit the family. Expenses limited to minor repairs. 6. Expenses for professional, Vocational, or Self-Improvement Course of Spouses 7. Ante-nuptial Debts that Benefited the Family If the ante-nuptial debt did not benefit the family, applicable rule is (9). 8. Donations by Both Spouses to Common Legitimate Children - Purpose: professional, vocational courses or activities for selfimprovement
Administration of property: Belongs to both spouses jointly. If they disagree the husbands decision prevails. However, the wife has five years from the date of the decision to go to court for recourse. Otherwise, it is presumed that she agreed with the husbands decision. (Art. 96, FC) Except: When the other spouse is incapacitated, or unable to participate in the administration (e.g. when abroad). The powers refer solely to administration; disposition or encumbrance requires consent of the absent or incapacitated spouse. Homeowners Savings & Loan Bank v. Dailo (2005) In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void. Disposition of property: Either spouse may, through a will, dispose his/her interest in the community property. (Art. 97, FC) However, the will should refer
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only to his/her own community property.
share
in
the
Donation of property: Donation of one spouse without the consent of the other is not allowed (Art. 98, FC) Except: 1. Moderate donations to charity due to family rejoicing or distress; 2. Moderate gifts by each spouse to the other due to family rejoicing. (note: Whats moderate depends on the socio-economic status of the family)
(c) authority to be the sole administrator of the absolute community, subject to precautionary conditions that the court may impose. *Spouse is prima facie considered to have abandoned the other spouse and the family if: 1. he/she has left for a period of three months, 2. he/she has failed to inform his/her whereabouts for a period of three months.
E. Dissolution of ACP
ACP terminates upon: (Art. 99, FC) 1. Death of either spouse follow rules in Art. 103 2. Legal Separation follow rules in Arts. 63 and 64 3. Annulment or judicial declaration of nullity follow rules in Arts. 50 to 52 4. Judicial separation of property during marriage follow rules in Arts. 134 to 138 Rules on De Facto Separation: (ART. 100, FC): De facto separation does not affect the ACP. EXCEPT that: 1. Spouse who leaves the conjugal home without just cause shall not be entitled to support. He/She, however, is still required to support the other spouse and the family. 2. If consent is necessary for transaction but is withheld or otherwise unobtainable, authorization may be obtained from the court. 3. Support for family will be taken from the ACP. 4. If ACP is insufficient, spouses shall be solidarily liable. 5. If it is necessary to administer or encumber separate property of spouse who left, spouse present may ask for judicial authority to do this. 6. If ACP is not enough and one spouse has no separate property, spouse who has property is liable for support, according to provisions on support. Abandonment: (Art. 101, FC) Present spouse may petition the court for: (a) receivership; (b) judicial separation of property; or
F. Liquidation Liabilities
of
Assets
and
(asked in 89 and 99) Process of liquidation of ACP: (Art. 102, FC) 1. Inventory of assets of ACP and of spouses, with market values. 2. Obligations are paid with community property, and separate obligations not charged to ACP paid by respective assets of spouses. a. If obligations exceed the assets of the ACP, nothing is divided. Creditors can go after the separate properties of the spouses, which are solidarily liable for the deficiency. 3. Delivery of whatever remains in their exclusive property. 4. Balance, or net remainder is divided equally between the spouses, irrespective of how much each brought into the community. 5. If personal obligations of a spouse exceed his/her separate property, creditor can go after the share of the spouse on the net remainder of the ACP, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes. 6. After covering all community obligations and obligations of spouses, balance of separate properties shall be delivered to respective spouses or their heirs, and they will also divide into two equal shares whatever is left of the community assets, without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes.
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Rules in Case of Termination of Marriage by Death of One of the Spouses: (Art. 103, FC) 1. The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. 2. If no such judicial settlement proceeding is instituted, surviving spouse shall liquidate the community property either judicially or extrajudicially within one year from the death of the deceased spouse. a. If no liquidation is made within the period, any disposition or encumbrance involving community property of the terminated marriage shall be void. b. Non-compliance with liquidation procedures would mean that a subsequently contracted marriage will follow a regime of complete separation of property. Procedure for Liquidation of Community Properties of Two Marriages:
(Art. 104, FC) 1. Determine the capital, fruits, and income of each community upon such proof as may be considered according to the rules of evidence. 2. In case of doubt as to which community the existing properties belong, they shall be divided between two communities in proportion to the capital and duration of each. Onas v. Javillo, (1934) Javillo contracted 2 marriages. SC ruled that each absolute community should be considered owner of the parcels of land acquired during its existence. Death discontinues ACP. Vda. De Delizo v. Delizo, (1976) In case of doubt as to which community the existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each.
IV. Conjugal Partnership Of Gains

(asked in 79 bar exam) CPG Each spouse retains his/her property; only fruits part of conjugal property Part of conjugal property Separate properties are returned; net profits divided equally between spouses or heirs. Capital and properties of spouses kept separate and distinct from benefits; insurmountable obstacle to presumption of solidarity Exclusive properties will have to be identified and returned, and sometimes, identification is difficult. CPG Exists with the mere fact of marriage and Predetermined by legislator, the law fixing its conditions. Divided equally between spouses, irrespective of the amount of capital that they bring into marriage No equality between spouses in ACP Properties become community property
1. Property acquired before marriage. 2. Property acquired during marriage 3. Upon dissolution of marriage 4. Basis
part
of
Becomes conjugal property.

Net remainder of ACP divided equally between spouses or heirs. Mutual trust and confidence between spouses; fosters oneness of spouses Easier to liquidate because net remainder of community properties are simply divided between spouses or heirs. Ordinary partnership Comes into existence according to agreement between parties Determined by will of partners. Depends upon respective capitals of partners, or upon their agreement General rule is that all partners
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5. Liquidation
1. Existence 2. Purpose, duration, rules 3. Profits 4. Equality
5. Personality 6. Commencement 7. Regulation 8. Purpose 9. Causes dissolution
control, management, and disposition, because the law grants the husband some predominance. No juridical personality At precise moment of celebration of marriage By law Not particularly for profit Death, legal separation, annulment, JDN, judicial separation of property Dissolution of partnership Only upon dissolution Joint; in case of disagreement, the husbands decision shall prevail, wife has recourse to courts
for
10. Effect of death of a partner 11. Division of properties 12. Management
have equal rights in administration, management, and control of partnership. Considered a juridical person At the time agreed upon by partners By agreement of parties; subsidiarily, by law For profit Death, insolvency, civil interdiction, termination of term, express will of any partner, etc. (Arts 1830-1931) Surviving partners may choose to continue partnership There can be division of profits without dissolution Same as individual partners, except when one or more partners designated as managers. with either
A. Where It Applies:
a. For marriages before the implementation of the Family Code. b. For marriages after the Family Code, if agreed to by the parties through a marriage settlement.
iv. Property purchased exclusive money of spouse- Art. 109 (4)
B. Husband and Common Fund:
Wife
Place
in
a. The proceeds, products, fruits, and income of their separate properties; b. Everything acquired by them within marriage through their own efforts; c. Everything acquired by them by chance (Art. 106)
c. Other Separate Property: v. Collection of credits belonging to one spouse exclusively vi. Sale of separate property of a spouse vii. Indemnity paid in cash of expropriation of separate property or under an insurance policy covering separate property. viii.Possession does not affect ownership of separate property.
C. Exclusive Spouses:
Properties
of
the
D. What Constitutes the CPG

(asked 75, 76, 78, 85, and 87 bar exams) a. Acquired by Onerous Title during the Marriage at Expense of Common Fund (Art. 117 (1)); b. Acquired through the Labor, Industry, Work, Profession of Either or both Spouses (Art. 117 (2)); c. Fruits from common property; d. Net fruits of exclusive property of each spouse (Art. 117 (3)); e. Share of either spouse in hidden treasure, whether as finder or owner of property where treasure is found (Art. 117(4)); f. Acquired through occupation such as fishing or hunting (Art. 117 (5));
a. Property by direct acquisition, or property that is originally exclusive: i. Property brought into marriage by each spouse as his/her own Art. 109(1) ii. Property acquired by either spouse during the marriage by gratuitous title Art 109 (2) b. Property by substitution: iii. Property acquired by right of redemption, by barter, or by exchange with property belonging to either spouse Art. 109 (3)
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g. Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage (Art. 117 (6)); h. Acquired by chance, such as winnings from gambling or betting (Art. 117 (7)) Moral damages arising from a contract paid from CPG, are also awarded to the CPG (Zulueta v. Pan-Am, 1973). Loans contracted during the marriage are conjugal, and so is any property acquired therefrom (Mendoza v. Reyes, 1983). Property acquired through lucrative/gratuitous title during the marriage is exclusive if no proof as to its conjugality is presented (Villanueva v. IAC, 1990).
one spouse before the marriage (Lorenzo v. Nicolas, 1952). c. rules on improvement (made on land part of exclusive property): i. if original value is greater than new value (value of land + value of improvements + net change in value), then land remains exclusive property of the owner-spouse; subject to reimbursement of the cost of improvement ii. if original value is less than new value, then land becomes conjugal property; subject to the reimbursement of the value of the property of the owner-spouse at the dissolution of the CPG. (Art. 120, FC). Change of ownership takes place at the time when the improvements are made (Calimlim-Canullas v. Fortun, 1984). d. If winning ticket is bought by conjugal funds (presumed), prize is conjugal; otherwise, it is exclusive property of spouse who owns the ticket. e. Property belonging to one spouse converted into another kind totally different in nature from its original form during marriage becomes conjugal in the absence of proof that the expenses of conversion were exclusively for the account of the original owner-spouse, subject to reimbursement of the value of the original property from the conjugal partnership f. Money received under the Social Security Act is not conjugal, although the employee-spouse contributes to the SSS with his salaries, but belongs to the designated beneficiary under the Social Security Law.
E. Rules
a. presumption that property is conjugal: all property acquired during the marriage, whether made, contracted, or registered in the name of one spouse, are presumed conjugal unless the contrary is proven (Art. 116, FC). "X married to Y" as it appears in land titles is not conclusive of the conjugal status of the property (Jocson v. CA, 1989). Exclusive property brought into a second marriage remains exclusive property under CPG regime; ACP is not retroactive for marriages celebrated under the Civil Code (Francisco v. CA, 1998). b. property purchased by installment: if partly paid with conjugal funds, conjugal if completed after the marriage, exclusive if completed before the marriage. Any amount advanced is reimbursed by the ownerspouse to the conjugal partnership at the dissolution of the CPG (Art. 118, FC). Exclusive property brought into a second marriage remains exclusive property under CPG regime. ACP is not retroactive for marriages celebrated under the Civil Code (Castillo v. Pasco, 1964). Even if the installment is completed after the marriage, the property is exclusive if ownership was vested in
g. Intellectual property, like copyright or patent, should, according to Tolentino, citing Planiol and Ripert, be considered separate property of the spouse who produces or invents or discovers it. h. Business property (e.g. trade-marks, trade names, service marks, business goodwill) are merely accessories to some commercial establishment or product, so that if such establishment or product is separate property of one spouse, then the business property is separate
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property; but all benefits or earnings derived from these different kinds of property during the marriage should belong to the conjugal property (Tolentino, id., citing the same authority).
F. Charges Upon CPG

(Art. 121) [cf. Charges to ACP] (asked in 87 and 04 bar exams)
Art. 121. The conjugal partnership shall be liable for: (1) The support of the spouse, their common children, and the legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited; (4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property; (5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse; (6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for selfimprovement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for selfimprovement; and (9) Expenses of litigation between the spouses unless the suit is found to groundless. If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.
Categorization of CPG Charges (Pangalangan notes) Debts & Taxes & Obligations Expenses (2) by the (4) administratormaintenance spouse for the of CPG benefit of the properties family / by both spouses / by one spouse with the consent of the other 3) by one (5) mere spouse without preservation of the consent of all exclusive the other for the properties benefit of the family (7) antenuptial (9) litigation debts for the expenses, benefit of the unless the suit family is groundless
Support (1) support of spouses and common children
(6) education of spouses, absolute 8) education of common children, only for value of donation
Debts incurred in the exercise of a spouses profession are charged on the CPG (Javier v. Osmea, 34 PHIL 336). Debts incurred during the marriage are presumed to be conjugal and thus are charged on the CPG (Cobb-Perez v. Lantin, 23 SCRA 637) loan contracts signed by both spouses are conjugal, and they are jointly liable for payment, even if only one spouse signs a subsequent promissory note (DBP v. Adil, 161 SCRA 307). Debts incurred for the benefit of third persons are not charged on the CPG (Luzon Surety Co. v. De Garcia, 30 SCRA 111).
G. Administration of the CPG

(asked in 75, 77, 02 and 06 bar exams) a. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, the husband's decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within 5 years from the date of the contract implementing such decision (Art. 124, par.1).
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Arturo R. Abalos v. Dr. Galicano S. Macatangay, Jr. (2004) Sale by the husband of property belonging to the conjugal partnership without the consent of the wife when there is no showing that the latter is incapacitated is void ab initio. b. Disposition or encumbrance of conjugal property requires: i. The consent or approval by both spouses; OR ii. Judicial authority secured in court Mere awareness of a transaction is NOT consent Homeowners Savings & Loan Bank v. Dailo (2005) In the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void.
I. Liquidation Liabilities
of
Assets
and
(asked in 87 and 89 bar exams) a. Procedure (Art. 129) i. Prepare an properties inventory of all
ii. Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership. Go vs. Yamane (2006) Personal debt acquired during marriage of either spouse is not chargeable against community property. iii. Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership. iv. Debts and obligations of the conjugal partnership shall be paid out of the conjugal assets, otherwise both spouses are solidarily liable with their exclusive property. v. Whatever remains of the exclusive properties of the spouses shall be delivered to respective ownerspouses vi. Indemnify loss or deterioration of movables belonging to either spouse, even due to fortuitous event, used for the benefit of the family vii. The net remainder of the conjugal partnership properties, or the profits, which shall be divided equally between husband and wife viii. Presumptive legitimes are delivered to common children in accordance with Art. 51. ix. Conjugal dwelling goes to spouse with whom the majority of children are staying with
H. Dissolution of the CPG

a. Termination of the CPG (cf. Art. 99) b. De facto Separation (cf. Art. 100) c. Abandonment and Absence (cf. Art. 101) Upon dissolution of marriage or partnership, the net gains or benefits from the partnership shall be divided equally between the spouses, unless they have agreed on another manner of division in their marriage settlement.
Ayala Investment v. Ching, (1998) The Supreme Court ruled that indirect benefits that might accrue to a husband in signing as a surety or guarantee agreement not in favor of the family but in favor of his employer corporation are not benefits that can be considered as giving a direct advantage accruing to the family. Hence, the creditors cannot go against the conjugal partnership property of the husband in satisfying the obligation subject of the surety agreement. A contrary view would put in peril the conjugal partnership by allowing it to be given gratuitously as in cases of donation of conjugal partnership property, which is prohibited.
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Exceptions: A different proportion or division was agreed upon in the marriage settlements There has been a voluntary waiver or forfeiture of such share as provided in this Code. Property must be recorded in the registry of property in order to affect third persons dealing with registered property.
De Ansaldo v. Sheriff of Manila, (1937) The Supreme Court ruled that the spouses are not co-owners of the conjugal properties during the marriage and cannot alienate the supposed interest of each in the said properties. The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears after the dissolution and liquidation of the partnership that there are net assets. ACP/CPG terminates upon (art. 99 and 126): Death of either spouse follow rules in Art. 103 Legal Separation follow rules in Arts. 63 and 64 Annulment or judicial declaration of nullity follow rules in Arts. 50 to 52 Judicial separation of property during marriage follow rules in Arts. 134 to 138
b. Spouse of the petitioner has been judicially declared an absentee. c. Loss of parental authority of the spouse of petitioner has been decreed by the court. d. Spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family. e. The spouse granted the power of administration in the marriage settlements has abused that power. f. At the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable. Each spouse shall contribute to the family expenses, in proportion to their income. In case of insufficiency, the market value of their separate properties. (Art. 146) Liability of spouses to the creditors of the family shall be SOLIDARY. (Art. 146, par. 2) Abandonment is defined as the lack of intention to return to the conjugal home, without justifiable cause (Dela Cruz v. Dela Cruz)
V. Separation of Properties During Marriage

Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause.
Judicial separation of property may either be (1) voluntary or (2) for sufficient cause.
2. Effects of separation of property between spouses: a. ACP or CPG is dissolved and liquidated (Art. 137) b. Provisions on complete separation of property applies after dissolution of ACP/CPG (Art. 138) i. The liability of the spouses to creditors shall be solidary with their separate properties ii. mutual obligation to support each continues except when there is legal separation c. Petition and final judgment of separation of property must be filed in the appropriate registries (Art. 139) d. rights previously acquired by creditors are not prejudiced (Art. 140) 3. Grounds for Return to Previous Regime (Art. 141): a. When the civil interdiction terminates b. When the absentee spouse reappears. c. When the court, being satisfied that the spouse granted the power of administration in the marriage
1. Sufficient Causes for Judicial Separation Of Properties (CALASA) (Art. 135, FC): a. Spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction.
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settlements will not again abuse that power, authorizes the resumption of said administration. d. When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other; e. When parental authority is judicially restored to the spouse previously deprived thereof; f. When the spouses who have separated in fact for at least one year, reconcile and resume common life. g. When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted. 4. Transfer of Administration to The Other Spouse When (GACA) (Art. 142): a. When one spouse becomes the guardian of the other. b. When one spouse is judicially declared an absentee. c. When one spouse is sentenced to a penalty which carries with it civil interdiction. d. When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. In Re: voluntary dissolution of CPG of spouses Bernas, 14 SCRA 237 The petition for voluntary separation of property was denied because the children of the 1st and 2nd marriages were not informed; the separation of property may prejudice the rights and shares of the children Maquilan v. Maquilan, (2007) A compromise agreement with judicial recognition is valid, pending petition for declaration of nullity of marriage
VI. Property Regime without Marriage
of
Unions
(asked in 79, 87, 98 and 00 bar exams)

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. Page 196 of 276
Art.147 1. man and woman 2. living together as husband and wife 3. with capacity to marry (Art.5 without any legal impediment) at least 18 years old not Art. 37 (incestuous Applicability void marriage) not Art. 38 (void marriage by reason of public policy) not bigamous 4. other void marriages due to absence of formal requisite Owned in equal shares Salaries and wages Properties acquired Remains exclusive provided there is proof through exclusive funds Properties acquired by Governed by rules on coboth through work or ownership industry Owned in equal shares since it is presumed to have been acquired through joint efforts Properties acquired while if one party did not participate living together in acquisition, presumed to have contributed through care and maintenance of family and household When only one of the parties is in good faith, the share of the party in bad faith shall be forfeited: 1. In favor of their common children 2. In case of default of or waiver by any or all of the common Forfeiture children or their descendants, each vacant share shall belong to the respective surviving descendants 3. In the absence of such descendants, such share belongs to the innocent party
Art.148 1. man and woman 2. living together as husband and wife 3. NOT capacitated to marry (Art.35(1) under 18 years old) 4. adulterous relationship (e.g. concubinage) 5. bigamous/polygamous marriage (Art.35(4)) 6. incestuous marriages under Art.37 7. Void marriages by reason of public policy under Art.38 Separately owned by parties Remains exclusive Owned in common in proportion to respective contribution
No presumption of joint acquisition. When there is evidence of joint acquisition but none as to the extent of actual contribution, there is a presumption of equal sharing If one party is validly married to another: - his/her share in the co-owned properties will accrue to the ACP/CPG of his/her existing valid marriage If the party who acted in bad faith is not validly married to another, his/her share shall be forfeited in the same manner as that provided in Art 147 The same rules on forfeiture shall apply if both parties are in bad faith
Yaptinchay v. Torres, (1969) Application of Article 148; there was no proof of actual contribution, while there was a subsisting marriage apart from the union without marriage, therefore, the N. Forbes house goes to the CPG of subsisting marriage Juaniza v. Jose, (1979) Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the marriage, and the other party cannot be held jointly/severally liable for it Villanueva v. CA, (2004) Transfer of certificate and tax declarations are not sufficient proof of joint contribution. Joaquino v. Reyes (2004) Prohibitions against donations between spouses must likewise apply to donations between persons living together in illicit
relations; otherwise the latter would be better situated than the former. Maxey v. CA, (1984) Application of article 147; homemaker has equal share in the co-ownership of property when there is no legal impediment in their cohabitation San Luis v. Sagalongos, (2007) Validity of divorce will determine whether article 147 or article 148 applies; if the party is capacitated after obtaining a valid foreign divorce, 147 applies. Metrobank v Pascual (2008) Obiter Dictum here: When a marriage is declared VOID, the ACP must be terminated (note: contrary to the ruling that there is generally no ACP/CPG when a marriage is declared void.
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Chapter 9. The Family and Family Home

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

dwelling place of a person and his family (asked in 94 and 07 bar exam) Guidelines: 1. It is deemed constituted from time of actual occupation as a family residence 2. It must be owned by person constituting it 3. It must be permanent 4. Rule applies to valid and voidable and even to common-law marriages under Arts.147 and 148 5. It continues despite death of one or more spouses or unmarried head of family for 10 years or as long as there is a minor beneficiary (Art.159) 6. Can only constitute one family home A. GENERAL RULE: The family home is exempt from (EFA): 1. Execution 2. Forced sale 3. Attachment B. Exceptions in the exemption of the family home from execution (Art. 156): 1. Nonpayment of taxes. 2. Debts incurred prior to the constitution of the family home. 3. Debts secured by mortgages on the premises before or after such constitution. 4. Debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. C. Beneficiaries of the family home (Art. 154): 1. Husband and wife, or an unmarried person who is the head of the family 2. Parents (may include parent-inlaws), ascendants, descendants, brothers and sisters (legitimate/illegitimate), who are living in the family home and who depend on the head of the family for support Requisites to be a beneficiary (RLD): 1. The relationship is within those enumerated 2. They live in the family home 3. They are dependent for legal support on the head of the family
I. Family
(asked in 91 bar exam) - basic social institution which public policy cherishes and protects hence, no suit between members of the family shall prosper unless compromise between parties has failed. A. Family Relations Include: Between husband and wife Between parents and children Among other ascendants and descendants Among brothers and sisters, full or half blood. B. General Rule: For a suit between members of the same family to prosper, the following are required: Earnest efforts towards a compromise have been made Such efforts have failed Such earnest efforts and the fact of failure must be alleged [NOTE: The case will be dismissed if it is shown that no such efforts were made.] C. Exceptions to the general rule (VJLAFF): a. Civil status of persons, b. Validity of marriage or a legal separation, c. Any ground for legal separation, d. Future support, e. Jurisdiction of courts, f. Future legitime Hontiveros v. RTC, (1999) Whenever a stranger is a party in a case involving family members, the requisite showing of earnest efforts to compromise is no longer mandatory, as such inclusion of a stranger takes the case out of the ambit of FC 151.
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Requirements for the sale, alienation, donation, assignment, or encumbrance of the family home: 1. the written consent of the person constituting it, 2. his/her spouse, and 3. majority of the beneficiaries of legal age [NOTE: If there is a conflict, the Court will decide.] In case of death (ART. 159): - The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years, or as long as there is a minor beneficiary. - The heirs cannot partition the home unless the court finds compelling reasons therefor. D. Requisites for creditor to avail of the right under article 160: 1. He must be a judgment creditor; 2. His claim is not among those excepted under Article155, and 3. He has reasonable grounds to believe that the family home is worth more than the maximum amount fixed in Article 157 Procedure to avail of right under Article 160: 1. The creditor must file a motion in the court proceeding where he obtained a favorable for a writ of execution against the family home. 2. There will be a hearing on the motion where the creditor must prove that the actual value of the family home exceeds the maximum amount fixed by the FC either at the time of its constitution or as a result of improvements introduced thereafter its constitution. 3. If the creditor proves that the actual value exceeds the maximum amount the court will order its sale in execution. 4. If the family home is sold for more than the value allowed, the proceeds shall be applied as follows: a. First, the obligation enumerated in Article 155 must be paid b. Then the judgment in favor of the creditor will be paid, plus all the costs of execution c. The excess, if any, shall be delivered
Versola v. Mandolaria, (2006) The proof that the house is the family home must be alleged against creditors; Applied the rule in Art. 160, FC. Patricio v. Dario III, (2006) WON the grandson of the deceased is a beneficiary according to Art. 154 FC. The beneficiary should satisfy all requisites; he must be dependent on the head of the family. Arriola v. Arriola, (2008) This case involves half brothers and a second wife; the family home includes the land it is built on. The rule in Art. 159 of the FC regarding the 10 year period is applied, the parties involved must wait.
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Chapter 10. Paternity and Filiation

I. II. III. IV. V. KINDS OF FILIATION IMPUGNING LEGITIMACY PROOF OF FILIATION LEGITIMATION RIGHTS OF LEGITIMATE ILLEGITIMATE CHILDREN
ILLEGITIMATE CHILDREN (asked in 80, 82, 83, 84, 90, 93, 99, 00, 07 and 08 bar exams)
OR
I. Kinds of Filiation
(Arts. 163, 164, 165 FC) Natural Legitimate Illegitimate Legal fiction (adoption)
LEGITIMATE CHILDREN (asked in 79, 82, 84, 85, 99 and 03 bar exams) Conceived or born during the marriage of parents. May be thru natural means or by artificial insemination.
Generally, those conceived and born outside of a valid marriage. Except, as may be provided otherwise in the Family Code. Thus the following are legitimate, even if the marriages are invalid: a. Children of marriages void under Art. 36 (because of psychological incapacity). b. And under Art. 53 (the second marriage of a widow or widower who has not delivered to his or her children by his or her first marriage the legitime of said children). (SEMPIO-DIY)
De Castro v. Assidao-De Castro, (2008) Common children born before the annulment are legitimate, and therefore entitled to support from each of the spouses.
1. Natural/Biological Liyao v. Liyao, (2002) A child conceived or born during a valid marriage is presumed to belong to that marriage, regardless of the existence of extramarital relationships. 2. Artificial Insemination Requisites for children conceived through artificial insemination to be considered legitimate: a. The artificial insemination is made on the wife, not on another woman. b. The artificial insemination of the wife is done with the sperm of the husband or of a donor or of both the husband and a donor. c. The artificial insemination has been authorized or ratified by the spouses in a written instrument executed and signed by them before the birth of the child. d. The written instrument aforementioned is recorded in the civil registry together with the birth certificate of the child. (SEMPIO-DIY)
II. Impugning Legitimacy

(Art. 166)
A. Grounds
Thus the grounds for impugning the legitimacy of a child are: Physical impossibility for sexual intercourse within the first 120 days of the 300 days which immediately preceded the child's birth due to: Physical incapacity husband; Physical separation; of the
Serious illness. Other biological or scientific reasons, except Artificial Insemination. And in case of Artificial Insemination, the consent of either parent was vitiated through fraud, violence, mistake, intimidation, or undue influence.
Macadangdang v. CA, (1980) Only a proximate separation between the spouses is not sufficient physical separation as grounds for impugning legitimacy. Andal v. Macaraig, (1951) Serious illness of the husband which
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absolutely prevented him from having sexual intercourse with his wife, like if the husband was already in comatose or a vegetable, or sick with syphilis in the tertiary stage so that copulation was not possible. But tuberculosis, even in its most crucial stage, does not preclude copulation between the sick husband and his wife. Jao v. CA, (1987) Blood-type matching is an acceptable means of impugning legitimacy, covered by Art. 166(2), under "biological or other scientific reasons." But this is only conclusive of the fact of non-paternity.
Generally, only the husband can impugn the legitimacy of a child. If he does not bring action within the prescribed periods, he cannot file such action anymore thereafter, and this is also true with his heirs. Except, that the heirs of the husband may file the action or continue the same if it has already been filed, in the 3 conditions provided for in Art. 171. (SEMPIO-DIY)
III.Proof of Filiation
(Arts. 172 and 175 (1)) (asked in 85, 95, 05 and 06 bar exams)
B. Other Rules
Chua Keng Giap v. IAC, (1988) The mother is in the best position to know whether the petitioner is really her son. Art. 167 refers to issues of paternity and not of maternity.
A. Rules
Legitimate or illegitimate children may prove their filiation in the same way and on the same evidence. Generally, they may only prove their status using the following pieces of evidence: Their record of birth appearing in the civil registry. Copy of a final judgment declaring his status. An admission of his filiation (legitimate or illegitimate) by his parent or parents in a public document or a private handwritten instrument and signed by said parent or parents. (SEMPIO-DIY) Except, that the proof of the open and continuous possession of the status of a legitimate or illegitimate child may be used only in the absence of the above pieces of evidence.
C. Action for Impugning Legitimacy

(Arts. 170 and 171) The action for impugning the legitimacy of a child may be brought within 1, 2, or 3 years from the knowledge of the birth, or the knowledge of registration of birth. Within 1 year if the husband should reside in the same city or municipality where the child was born or his birth was recorded. Within 2 years if the husband does not reside in the same city or municipality where the child's birth took place or was recorded but his residence is in the Philippines. Within 3 years if the child's birth took place or was recorded in the Philippines while the husband has his residence abroad, or vice versa. If the birth of the child has been concealed or was unknown to the husband, the above periods shall be counted: from the discovery or knowledge of the birth of the child, or from the discovery or knowledge of its registration, whichever is earlier.
Mendoza v. Melia, 17 SCRA 788 Baptismal certificates are given probative value only for births before 1930. Birth certificates must be signed by the parents and sworn for it to be admitted as evidence. Baluyut v. Baluyut, (1990) Unsigned birth certificates are not evidence of recognized filiation. Acebedo v. Arquero, (2003) Baptismal certificates are only conclusive of the sacrament administered, and cannot be used as proof of filiation.
Sayson v. CA Legitimacy can only be attacked directly.
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Lim v. CA, (1975) Marriage certificates cannot be used as proof of filiation. Jison v. CA, (1998) Rule 130, Sec. 40 is limited to objects commonly known as family possessions reflective of a family's reputation or tradition regarding pedigree like inscriptions on tombstones, monuments, or coffin plates. Eceta v. Eceta (2004) Signature of the father on the birth certificate is considered as an acknowledgement of paternity and mere presentation of a duly authenticated copy of such certificate will successfully establish filiations. Heirs of Rodolfo Baas v. Heirs of Bibiano Baas, (1985) "Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual paternity. Signature on a report card under the entry of "Parent/Guardian" is likewise inconclusive of open admission. De Jesus v. Syquia, (1933) By "open and continuous possession of the status of a legitimate child" is meant the enjoyment by the child of the position and privileges usually attached to the status of a legitimate child, like bearing the paternal surname, treatment by the parents and family of the child as legitimate, constant attendance to the child's support and education, and giving the child the reputation of being a child of his parents. Agustin v. CA, (2005) DNA evidence can be used as proof of paternity. De Jesus v. Estate of Decedent Juan Gamboa Dizon (2001) The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing, is in itself a consummated act of acknowledgement of the child, and no further court action is required. Gono-Javier vs. Court of Appeals, (1994) Mere possession of status as an illegitimate child does not make a recognized illegitimate child but is only a ground for bringing an action to compel judicial recognition by the assumed parent.
Herrera v. Alba, (2005) In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: How the samples were collected, How they were handled, The possibility of contamination of the samples, The procedure followed in analyzing the samples, Whether the proper standards and procedures were followed in conducting the tests, And the qualification of the analyst who conducted the tests. Estate of Rogelio Ong v. Diaz, (2007) DNA evidence can still be used even after the death of the parent.
B. Action for Claiming Filiation

(Arts. 173 and 175 (2)) Generally, The child can bring the action during his or her lifetime and even after the death of the parents. The action does not prescribe as long as he lives. If the child is a minor, or is incapacitated or insane, his guardian can bring the action in his behalf. Except, if the child is illegitimate, and if the action is based on the open and continuous possession by the child of the status of an illegitimate child, or on other evidences allowed by the Rules of Court, then the action must be brought during the lifetime of the parent. (SEMPIO-DIY)
IV. Legitimation
(Arts. 177-182) (asked in 82, 90, 92, 04 and 08 bar exams) "Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are, by legal fiction, considered legitimate. Requisites for legitimation: The child was conceived and born outside of wedlock. The parents, at the time of the child's conception, were not disqualified by any impediment to marry each other.
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Grounds for impugning legitimation: The subsequent marriage of the child's parents is void. The child allegedly legitimated is not natural. The child is not really the child of the alleged parents. (SEMPIO-DIY)
B. Rights of Illegitimate Children The rights of illegitimate children (S-S-S1/2): To bear the surname of the mother, or the father only if their filiation has been expressly recognized by the father in the child's record of birth or in a handwritten public instrument. To receive support, in conformity with the provisions of the Family Code on support. To be entitled to the legitime, which is one-half of that of a legitimate child, and other successional rights granted to them under the Civil Code. David v. CA, (1995) Parental authority over an illegitimate child belongs to the mother. Tonog v. CA, (2002) However, this may be temporarily denied to the mother by reason of her incapacity. Mossesgeld v. CA, (1998) The father cannot force the use of his surname without first establishing legitimacy. Under RA 9255, only an acknowledgment by the father is necessary for the use of the father's surname.
V. Rights of Legitimate Illegitimate Children
or
Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and (3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. Art. 179. Legitimated children shall enjoy the same rights as legitimate children.
A. Rights of Legitimate and Legitimated Children The rights of legitimate children (S-S-S): Bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on surnames. Receive support, in conformity with the provisions of the Family Code on support. Be entitled to the legitime and other successional rights granted to them under the Civil Code. Republic v. Vicencio, (1998) A legitimate child's use of the father's surname is mandatory. De Asis v. CA, (1999) Obligation to support a legitimate child cannot be waived or compromised.
Capote v. CA, (2007) An illegitimate child already given the father's surname without the latter's acknowledgment, must revert to using the mother's surname.
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Chapter 11. Adoption

I. R.A. 8552 A. WHO MAY ADOPT B. WHO MAY BE ADOPTED II. ADOPTION PROCEDURE UNDER RA 8552 IRR A. PRE-ADOPTION SERVICES B. EFFECTS OF ADOPTION C. RESCISSION OF ADOPTION D. EFFECTS OF RESCISSION E. RECTIFICATION OF SIMULATED BIRTHS III. R.A. 8043: INTER-COUNTRY ADOPTION ACT OF 1995 A. WHO MAY ADOPT B. WHO MAY BE ADOPTED C. WHERE TO FILE APPLICATION D. DOCUMENTS TO SUPPORT APPLICATION E. INTER-COUNTRY ADOPTION BOARD F. TRIAL CUSTODY
3. Of good moral character 4. Has not been convicted of any crime involving moral turpitude 5. Emotionally and psychologically capable of caring for children 6. At least sixteen (16) years older than adoptee, except when adopter is biological parent of the adoptee or is the spouse of the adoptees parent 7. In a position to support and care for his/her children in keeping with the means of the family Aliens 1. Possession of the same as the qualifications for Filipinos 2. His/her country has diplomatic relations with the Philippines 3. Has been living continuously for 3 years (provided that absences not exceeding 60 days per 1 year for professional, business, or emergency reasons are allowed) in RP prior to the filing of application and maintains such residence until the decree is entered 4. 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 5. His/her government allows the adoptee to enter his/her country as his/her adoptee 6. Has submitted all the necessary clearances and such certifications as may be required
ADOPTION
(Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03, 04, 05, 07, 08)
LEGITIMATION The law merely makes legal what exists by nature ADOPTION The law merely creates by fiction a relation which did not in fact exist Generally applies to strangers Always by judicial decree Husband and wife adopt jointly with exceptions (RA8552) Creates a rel. only between the child and the adopting parents
Persons affected Procedure Who applies
Only children
natural
Extrajudicial acts of parents Only by parents both
Effect
Same status and rights with that of a legitimate child not only in relation to the legitimizing parents but also to other relatives
I. R.A 8552: Domestic Adoption Act of 1998 A. Who May Adopt (Sec.7):
Filipino Citizens 1. Of legal age 2. In possession of full civil capacity and legal rights
**Items number 4 and 5 may be waived under the following circumstances: (i) Adopter is a former Filipino Citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity (ii) One who seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse (iii) One who is married to a Filipino Citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse Guardians With respect to theirs ward after the termination of the guardianship and clearance of his/her accountabilities.
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Husband and wife shall adopt jointly except: a. if one spouse seeks to adopt the legitimate child of the other b. if one of the spouse seeks to adopt his/her illegitimate child provided that other spouse has signified his/her consent c. if spouses are legally separated from each other ** if spouses jointly adopt, parental authority shall be exercised jointly
B. Who May Be Adopted (Sec. 8):

1. Any person below 18 years old who has been administratively or judicially declared available for adoption 2. The legitimate child of one spouse by the other spouse 3. An illegitimate child by a qualified adopter to improve the childs status to that of legitimacy 4. A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her child since minority 5. A child whose previous adoption has been rescinded 6. A child whose biological or adoptive parent(s) has died, provided that no proceedings shall be initiated within 6 months from the time of death of said parent(s) Consents Necessary for Adoption (Sec. 9): 1. The prospective adoptee if 10 years or older 2. The prospective adoptees biological parents, legal guardian or the government instrumentality or institution that has custody of the child 3. The prospective adopters legitimate and adopted children who are ten years or over and, if any, illegitimate children living with them 4. The spouse, if any, of the person adopting or to be adopted. [NOTE: A decree of adoption shall be effective as of the date the original petition was filed. It also applies in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee.]
Child to be Adopted Biological parent signs a Deed of Voluntary Commitment (Rescissible within 6 months) Voluntary Commitment: Declaration of Availability for Adoption Involuntary Commitment: (1) Announcement of Missing Child in Tri-Media (2) Declaration of Abandonment (3) Declaration of Availability for Adoption Case Study Report
Adopter Inquiry at DSWD
Attendance of DSWD Adoption Fora and Seminars (include counseling)
Application for Adoption Case Study Report Matching Placement Supervised Trial Custody Home Study Report Recommendation and Consent Petition for Adoption Adoption Decree
II. Adoption procedure under 8552 IRR, Secs. 10-32

(as discussed in Pangalanans class) Prof.
RA
Elizabeth
A. Pre-Adoption Services:
The DSWD shall provide for the following services: 1. Counseling services for the biological parents, prospective parents, and prospective adoptee 2. Exhaust all efforts to locate the biological parents, if unknown
B. Effects of Adoption (Secs. 16-18):

1. Parental Authority: All legal ties between biological parents and adoptee are severed, and the same shall be vested on the adopter, except if the biological parent is the spouse of the adopter.
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2. Legitimacy: The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes. 3. Succession: Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation, in legal and intestate succession. If adoptee and his/her biological parents had left a will, the law on testamentary succession shall govern.
E. Rectification of Simulated Births (Sec. 22):

A person who has, prior to the effectivity of this Act, simulated the birth of a child shall not be punished for such act: Provided, (1) That the simulation of birth was made for the best interest of the child and that he/she has been consistently considered and treated by that person as his/her own son/daughter: (2) That the application for correction of the birth registration and petition for adoption shall be filed within five (5) years from the effectivity of this Act and completed thereafter: (3) That such person complies with the procedure for Legal Adoption as specified in this Act, which includes the Child and Home Study Report of DSWD to determine if alleged conditions in the application for rectification exist, and other requirements as determined by the Department. Tamargo v. CA (1992) Where the petition for adoption was granted after the child had shot and killed a girl, the Supreme Court did not consider that retroactive effect may be given to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive effect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the adopting parents so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented would be unfair and unconscionable. Lazatin v. Campos, (1979) Adoption is a Judicial Act, proceeding in rem. Petition must be announced in publications. Only those proclaimed by the court are valid, and adoption is never presumed. Santos v. Aranzanso, (1966) Validity of facts behind a final adoption decree cannot be collaterally attacked without impinging on that courts jurisdiction.
C. Rescission of Adoption (Sec. 19):

Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). Adopted may request for rescission, with the assistance of DSWD, if a minor, or over 18 but incapacitated, based on the ff grounds: 1. repeated physical and verbal maltreatment despite having undergone counseling 2. attempt on life of adoptee 3. sexual assault or violence 4. abandonment or failure to comply with parental obligations However, the adopter(s) may disinherit the adopted based on causes as enumerated in Art. 919 of the NCC.
D. Effects of Rescission (Sec. 20):

1. The parental authority of the adoptee's biological parents, if known, OR the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated. 2. The reciprocal rights and obligations of the adopters and the adoptee to each other shall be extinguished. 3. The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate. 4. Successional rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall be respected.
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DSWD v. Belen, (1997) Participation of the appropriate government instrumentality in performing the necessary studies and precautions is important and is indispensable to assure the childs welfare. Landingin v. Republic, (2006) Consents for adoption must be written and notarized. Sayson v. CA. (1992) Adopted children have a right to represent their adopters in successional interests.
of the Child, and to abide by the rules and regulations issued to implement the provisions of this Act Comes from a country with whom the Philippines has diplomatic relations and whose government maintains a similarly authorized and accredited agency and that adoption is allowed under his/her national laws
B. Who May Be Adopted (Sec. 8):

Only a legally-free child may be the subject of inter-country adoption. A legally-free child is one who has been voluntarily or involuntarily committed to the DSWD of the Philippines, in accordance with the Child and Youth Welfare Code. No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. In order that such child may be considered for placement, the following documents must be submitted to the Board: (1) Child study (2) Birth Certificate / Foundling Certificate (3) Deed of Voluntary Commitment/ Decree of Abandonment/ Death Certificate of parents (4) Medical Evaluation / History (5) Psychological Evaluation, as necessary (6) Recent photo of the child
III.R.A. 8043: Inter-Country Adoption Act of 1995

INTER-COUNTRY ADOPTION refers to the socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines.
A. Who May Adopt (Sec. 9):

Any foreign national or a Filipino citizen permanently residing abroad who has the qualifications and none of the disqualifications under the Act may file an application if he/she: Is at least 27 years of age and at least 16 years older than the child to be adopted, at the time of application unless the adopter is the parent by nature of the child to be adopted or the spouse of such parent If married, his/her spouse must jointly file for the adoption Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country Has not been convicted of a crime involving moral turpitude Is eligible to adopt under his/her national law Is in a position to provide the proper care and support and to give the necessary moral values and example to all his children, including the child to be adopted Agrees to uphold the basic rights of the child as embodied under Philippine laws, the U.N. Convention on the Rights
C. Where to (Sec.10):
File
Application
Application shall be filed with the Philippine Regional Trial Court having jurisdiction over the child, or with the Inter-Country Adoption Board, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents.
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D. Application Should Be Supported By The Following Documents Written And Officially Translated In English (Sec. 10):
(1) Birth Certificate of applicants (2) Marriage Contract and Divorce decree, if applicable (3) Written consent of their biological or adoptive children above 10 years of age in the form of sworn statement, (4) Physical, medical and psychological evaluation by a duly licensed physician and psychologist (5) Income Tax Returns or any document showing the financial capability of the applicant (6) Police Clearance (7) Character reference from the local church/minister, applicants employer and a member of the immediate community who have known the applicant for at least 5 years (8) Recent postcard-sized pictures of the applicant and his immediate family
shall be taken into consideration in deciding whether or not to issue the decree of adoption.
E. Inter-Country Adoption Board:

Acts as the central authority in matters relating to inter-country adoption Ensures that all possibilities for adoption of the child under the Family Code have been exhausted and that inter-country adoption is in the best interest of the child.
F. Trial Custody (Sec. 14):

The governmental agency or the authorized and accredited agency in the country of the adoptive parents shall be responsible for the trial custody and the care of the child. It shall also provide for counseling and other related services. The trial custody shall be for a period of 6 months from the time of placement. It starts upon actual physical transfer of the child to the applicant who, as actual custodian, shall exercise substitute parental authority over the person of the child The adopting parents shall submit to the governmental agency or the authorized and accredited agency, which shall in turn transmit a copy to the Board, a progress report of the child's adjustment. The progress report
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Chapter 12. Support
Chapter 12. Support

(asked in 84, 85, 05, 08)
I. GENERAL PROVISIONS A. KINDS B. CHARACTERISTICS C. HOW SUPPORT IS GIVEN II. WHO ARE OBLIGED TO SUPPORT EACH OTHER III. ORDER OF SUPPORT A. IF THERE ARE TWO OR MORE TO GIVE SUPPORT B. IF THERE ARE MULTIPLE RECIPIENTS
A. Kinds of Support:
1. Legal that which is required to be given by law 2. Judicial that which is required to be given by court order whether pendente lite or in a final judgment 3. Voluntary or Conventional by agreement
I. Support
consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family (Art.194). The amount of support is in proportion to the means of the provider and the needs of the receiver, and can be reduced or increased if circumstances change (Arts. 201 -202). The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand (Art. 203). When, without the knowledge of the person obliged to give support, it is given by a stranger, the stranger has the right to claim the same from the person obliged, unless it appears that he gave it without intention of being reimbursed (Art. 206). When the person obliged to give support unjustly refuses or fails to give support when urgently needed, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This particularly applies when the father or mother of a minor child unjustly refuses to support or fails to give support to the child when urgently needed (Art. 207).
B. Characteristics (PREVIEW):
of
Support
1. Personal 2. Intransmissible 3. Not subject to waiver or compensation with regard to future support 4. Exempt from attachment or execution, except if support is contractual or given by will. In such cases, any excess legal support can be subject to levy on attachment or execution. 5. Reciprocal on the part of those who are by law bound to support each other 6. Variable
C. How Support is Given (Art. 204):

1. Payment of the amount 2. Accepting the recipient in the home of the provider, unless there is a legal or moral obstacle from doing so.
II. Who are Obliged to Support Each Other (art. 195):

1. The spouses; 2. Legitimate ascendants and descendants; 3. Parents and their legitimate children and the legitimate and illegitimate children of the latter; 4. Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and 5. Legitimate brothers and sisters, whether of full or half-blood.
III.Order of Support
A. Order of support if 2 or more are to give support (Art. 199): 1. Spouses 2. Descendants, nearest in degree 3. Ascendants, nearest in degree
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Chapter 12. Support
4. Brothers and Sisters [NOTE: When two or more are obliged to give support, the payment shall be divided between them in proportion to their resources.] B. Order of priority if there are multiple recipients (Sempio-Diy): A. Observe order in Article 199: 1. Spouses 2. Descendants, nearest in degree 3. Ascendants, nearest in degree 4. Brothers and Sisters B. If the concurrent obligees are the spouse and a child subject to parental authority, the child shall be preferred. ** According to TOLENTINO: The above preference given to a child under parental authority over the spouse should prevail only if the person obliged to support pays it out of his own separate property. If the support comes from ACP or CPG, the above rule of preference for the child does not apply. Lacson v. Lacson, (1968) Man is still liable for support in arrears since the mother advanced it from a stranger (uncle of the daughters). Lacson v Lacson (2006) Acknowledgment of and commitment to comply with such obligation through a note in his own handwriting is a proof of demand.
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Chapter 13. Parental Authority

I. PARENTAL AUTHORITY GENERAL PROVISIONS C. CUSTODY D. OTHER RIGHTS AND DUTIES IN EXERCISE OF PARENTAL AUTHORITY II. SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY III. SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY IV. RIGHTS AND DUTIES OF CHILDREN
A. Custody
(Asked in 79 and 06 bar exams) Parental Preference Rule: The natural parents, who are of good character and who can reasonably provide for the child, are ordinarily entitled to custody as against all persons. Who exercises authority in cases of death, absence, remarriage, or separation of parents: In case one parent is absent or already dead, the present or surviving parent Remarriage shall not affect the parental authority over the children In case of separation of parents, the parent designated by the court. Innocent spouse gets custody of minor children. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. Tender Years Presumption: NO child under 7 years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. (Gamboa v. CA, 2007) Examples of compelling reasons are: When the mother is insane; with a communicable disease that might endanger the life or health of the child; is maltreating the child; or has another child by another man who lives with her. (Cervantes v. Fajardo, 1989) [NOTE: Prostitution or infidelity to husband does not make a mother unfit as parent.]
I. Parental Authority
(asked in 94, 03 and 05 bar exams) (patria potestas): The mass of rights and obligations which parents have in relation to the person and property of their children until their emancipation, and even after this under certain circumstances (Manresa). Parental authority includes: 1. The caring for and rearing of children for civic consciousness and efficiency; 2. The development of the moral, mental and physical character and well-being of said children Rules as to the exercise of parental authority: 1. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary (Art.211) 2. If the child is illegitimate, parental authority is with the mother. Cases when parental authority and responsibility may be transferred or renounced: Adoption; Guardianship; or Commitment of the child in an entity or institution engaged in child care or in a childrens home (Santos v. CA, 1995) Characteristics of parental authority: 1. It is a natural right and duty of the parents (Art. 209) 2. It cannot be renounced, transferred or waived, except in cases authorized by law (Art 210) 3. It is jointly exercised by the father and the mother (Art. 211) 4. It is purely personal and cannot be exercised through agents 5. It is temporary
B. Other Rights and Duties Exercise of Parental Authority
in
Rights of Parents upon their children: To have them in their custody To represent them in all matters affecting their interests Demand respect and obedience and impose discipline on them Administer their property and income to support the child and the family To give or withhold consent on marriage, pre-nuptial, donation propter nuptias, adoption, and employment To disinherit them for just cause
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Duties of Parents upon their children: Support and upbringing in accordance to their means Educate, instruct, and provide them with moral and spiritual guidance, and love and understanding Defend them against unlawful aggression Answer for damages caused by their fault or negligence, and for civil liability for crimes committed by them Give their lawful inheritance Liability of parents for torts committed by their minor children: Parents and other persons exercising parental authority are civilly liable for the torts of their unemancipated children: Provided they are living in their company, and Subject to the appropriate defenses provided by law, like he parents having observed the diligence of a good father of a family to prevent the damage (Libi v. IAC, 1992) If the minor child is, therefore, not living with the parents but has been entrusted to the care of other persons, or is an intern in school, the liability does not apply. This liability of the parents and those exercising parental authority over the child is solidary and primary and direct, not subsidiary
death, absence, or in case of unsuitability of parents.
the parents and rests on the theory that while the child is in the custody of the person exercising special parental authority, the parents temporarily relinquish parental authority over the child to the latter.
St. Marys Academy v. Carpitanos, (2002) The special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. Liability of those exercising special parental authority over the child: 1. They are principally and solidarily liable for damages caused by the acts or missions of the child while under their supervision, instruction or custody. HOWEVER, this liability is subject to the defense that the person exercising parental authority exercised proper diligence. 2. The parents and judicial guardians of the minor or those exercising substitute parental authority over the minor are subsidiarily liable for said acts and omissions of the minor. Effects of Parental Authority Upon the Property of the Child: The Father and Mother shall jointly exercise legal guardianship over the property of the minor child without court appointment In case of disagreement, the fathers decision shall prevail, unless there is judicial order to the contrary If the market value of the property or the annual income of the child exceeds P50,000, the parent is required to furnish a bond of not less than 10% of the value of the childs property or income
II. Substitute and Special Parental Authority

(Asked in 2003 bar exam) Substitute parental authority exercised by (in order): 1. The surviving grandparent 2. Oldest brother or sister, over 21 years old, unless unfit or unqualified. 3. Childs actual custodian, over 21 years old, unless unfit or unqualified Special parental authority exercised by: 1. School, its administrators and teachers, or 2. The individual, entity or institution engaged in child care.
Substitute Parental Authority It is exercised in case of Special Parental Authority It is exercised concurrently with the parental authority of
III.
Suspension or Termination of Parental Authority
Grounds for Suspension of Parental Authority (CLEBC): 1. Conviction of parent for crime without civil interdiction 2. Treats child with excessive harassment and cruelty 3. Gives corrupting orders, counsel or example 4. Compels child to beg
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5. Subjects or lasciviousness
allows
acts
of
Parental Authority Permanently Terminates: 1. Upon death of parents 2. Upon death of child 3. Upon emancipation of child 4. If the parents exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse Termination of parental authority which can be revived by final judgment: 1. Upon adoption of the child; 2. Upon the appointment of a general guardian for the child; 3. Upon judicial declaration
respect old relatives and persons holding substitute parental authority exert his utmost for his education and training cooperate with the family in matters for his own good
Art. 4, PD603 strive to live an upright and virtuous life love, obey, respect his parents and cooperate with them in strengthening the family extend his love to his brothers and sisters exert his utmost to develop his potentials
IV. Rights and Duties of Children Rights of Children:

Art. 356, NCC parental care receive at least elementary education be given moral and civil training by parents or guardian live in an atmosphere conducive to his physical, moral, and intellectual development Art. 3, PD603 to be born well right to a wholesome family life right to a well-rounded development right to a balanced diet, adequate clothing, shelter, proper medical attention, and all basic physical requirements of a healthy life raised in an atmosphere of morality and rectitude education commensurate to his abilities full opportunities for a safe and wholesome recreation protection against exploitation and other bad influences right to the care, assistance and protection of the State right to an efficient and honest government right to grow up as a free individual
Duties of Children:
Art. 357, NCC obey and honor his parents or guardian
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Chapter 14. Funerals
Chapter 14. Funerals

I. General Guidelines
Art. 305 (CC). The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right. Art. 306. Every funeral shall be in keeping with the social position of the deceased. Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family. Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral. Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses.
Duty and right to make arrangement in funerals in accordance with Art. 199 of FC: 1. Spouse 2. Descendants in nearest degree 3. Ascendants in nearest degree 4. Brothers and sisters 5. The funeral shall be in keeping with the social position of the deceased 6. The funeral shall be in accordance with the expressed wishes of the deceased 7. in the absence of expressed wishes, his religious beliefs or affiliation shall determine 8. in case of doubt, the persons in Art. 199 of FC shall decide 9. Any person who disrespects the dead or allows the same shall be liable for damages.
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Table of Contents
SUCCESSION
Chapter I. Concept of Succession I. Definition of Succession II. Opening of Succession III. Kinds of Succession IV. Kinds of Heirs Chapter II. Testamentary Succession I. Concept of Testamentary Succession II. Testamentary Capacity III. Formalities of Wills IV. Qualifications of Witnesses to a Notarial Will V. Amending a Will VI. Institution of Heirs VII.Applicable Principles of Private International Law VIII. Codicils and Incorporation by Reference IX. Revocation of wills and testamentary disposition X. Allowance and Disallowance of wills XI. Substitution of Heirs XII.Legitimes XIII. Preterition XIV. Reserva Troncal XV.Disinheritance XVI. Legacies and Devices Chapter III. Legal or Intestate Succession I. Causes for Legal or Intestate Succession II. The Intestate or Legal Heirs III. Fundamental Underlying Principles in Legal or Intestate Succession IV. Relationship V. The right of Representation VI. Order of Legal or Intestate Succession VII.Concurrence in Legal or Intestate Succession VIII. Outline of Intestate Shares IX. Order of Concurrence in the case of an Adopted Child Chapter IV. Provisions Common to Testamentary and Intestate Successions I. Accretion II. Capacity to Succeed III. Acceptance or Repudiation of Inheritance IV. Collation 217 217 217 217 217 218 218 218 218 220 220 220 221 222 222 222 223 224 226 226 227 228 231 231 231 231 232 232 234 234 234 235 Chapter VI. Application of the Important Concepts Through Sample Computational Problems 242 Chapter V. Partition and Distribution of Estate I. The Concept of Partition II. The Effects of Partition III. Nullification of Partition IV. Important Periods in Partition 239 239 240 240 241
236 236 236 237 238
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Chapter I. Concept of Succession
Succession
FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE Prof. Theodore O. Te
FACULTY EDITOR

SUBJECT EDITORS
LECTURES Edel Cruz

HEAD

-------Kae Guerrero
SUCCESSION Cez Villavert

LEAD WRITER
-------Leo Zulueta
Rania Joya
Ria Dooc Sophia San Luis Chris Fernandez Karl Landoy

WRITERS
Chapter I. Concept of Succession

I. Definition of Succession II. Opening of Succession III. Kinds of Succession IV. Kinds of Heirs
I. DEFINITION OF (ART. 774, CC)

SUCCESSION
It is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will, or by operation of law
1. If a person dies without a will or with a void will or one which has subsequently lost its validity; 2. The suspensive condition attached to the institution of heir does not happen or is not fulfilled or the heir dies before the testator or repudiates the inheritance, there being no substitution and no right of accretion takes place 3. When the heir instituted in incapable of succeeding, except in cases provided in this Code. C. Mixed (Art. 780, CC) - effected partly by will and partly by operation of law
IV. HEIRS
Those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law
II. OPENING OF SUCCESSION (ART. 777, CC)

The rights to succession are transmitted from the moment of the death of the decedent. However, a person may be presumed dead for the purpose of opening his succession (Rules on presumptive death in Arts. 390-391, CC). In this case, succession is only of provisional character because there is always a chance that the absentee may still be alive.
A. Compulsory Heirs those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law known as the legitime, of which they cannot be deprived by the testator, except by a valid disinheritance. They succeed regardless of a will. B. Voluntary or Testamentary Heirs those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose. They succeed by reason of a will. C. Legal or Intestate Heirs those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will. They succeed in the absence of a valid will, although this is not the only ground for intestacy, as can be seen in Chapter III.
III.KINDS OF 778, CC)
SUCCESSION
(ART.
SUCCESSION
A. Testamentary (Art. 779, CC) - results from the designation of an heir made in a will B. Legal or intestate (Art. 960, CC) - takes place by operation of law in the absence of a valid will
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Chapter II. Testamentary Succession

This 2nd Chapter is a review on the essential provisions and principles involving Testamentary Succession as a mode of disposing the decedents transmissible properties, rights or obligations There are SIXTEEN MAJOR LESSONS in this Chapter. I. II. III. IV. Concept of Testamentary Succession Testamentary Capacity Formalities of Wills Qualifications of Witnesses to a Notarial Will V. Amending a Will VI. Institution of Heirs VII. Applicable Principles of Private International Law VIII. Codicils and Incorporation by Reference IX. Revocation of wills and testamentary disposition X. Allowance and Disallowance of wills XI. Substitution of Heirs XII.Legitimes XIII. Preterition XIV. Reserva Troncal XV. Disinheritance XVI. Legacies and Devices
either for their reciprocal benefit or for another person.
II. TESTAMENTARY CAPACITY

Requirements: Not expressly prohibited by law to make a will (Art. 796, CC) Not under 18 years of age (Art. 797, CC) Testator is of sound mind at the time of execution (Art. 798, CC) Soundness of mindRules to remember: It is sufficient that the testator (NPC) Knew the Nature of the estate to be disposed of; (N) The Proper objects of his bounty; (P) Character of the testamentary act (C) (Art. 799, CC) Presumption of soundness of mind
EXCEPTION If within one month before making a will the testator is known to be insane, the burden of proof that he had a lucid interval is on the one alleging the validity of the will.
GENERAL RULE The law presumes that every person is of sound mind
I. CONCEPT
Definition of a Will (Art. 873, CC) It is an act; Whereby a person is permitted to control to a certain degree the disposition of his estate; To take effect after his death; With the formalities prescribed by law. Characteristics of a Will: UNILATERAL does not need the approval of any other person STRICTLY PERSONAL the disposition of property is solely dependent upon the testator FREE AND VOLUNTARY ACT any vice affecting the testamentary freedom an cause the disallowance of the will FORMAL AND SOLEMN ACT the formalities are essential for the validity of the will ACT MORTIS CAUSA takes effect only after the death of the testator AMBULATORY AND REVOCABLE DURING THE TESTATORS LIFETIME INDIVIDUAL ACT Two or more persons cannot make a joint will
Supervening incapacity will not invalidate the will. Supervening capacity will also not validate the will. (Art. 801, CC)
III.FORMALITIES OF WILLS 1. Kinds of Wills

a. Notarial will- Ordinary or attested will (Arts. 804-808, CC) b. Holographic will (Arts. 804 and 810, CC)
2. COMMON REQUIREMENTS FOR BOTH KINDS OF WILLS (Art. 804, CC)

a. Every will must be in writing; and b. Executed in the language known to the testator.
SUCCESSION
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3. SPECIFIC REQUIREMENTS FOR NOTARIAL WILLS (Asked in 75, 86, 90, 93, 07 and 08)
a. In writing (Art. 804, CC) b. In the language known to the testator (Art. 804, CC) c. SUBSCRIPTION: Subscribed to, at the end (Art. 805, CC) i. By the testator himself; or ii. By the testators name written by a representative in his presence and under his express direction. d. ATTESTATION: Attested and subscribed by 3 or more credible witnesses in the presence of the testator and of one another (Art. 805, CC). The ATTESTATION CLAUSE shall state the ff: i. Number of pages; ii. The fact that the testator or his representative under his express direction signed the will and every page in the presence of instrumental witnesses iii. That the witnesses signed the will and all its pages in the presence of the testator and of one another. Test of Presence: Jaboneta vs. Gustilo, (1906): Not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. e. MARGINAL SIGNATURES: Testator or his representative shall write his name, and the witnesses shall sign each and every page except the last page (Art. 805, CC) i. Exceptions: When the will consists of only one page Abangan vs. Abangan, (1919): When the will consists of only two pages, the first of which contains all dispositions and is signed at the bottom by the testator and the witnesses, and the second page contains only the attestation clause duly signed at the bottom by the witnesses.
ii. In the case of Matias vs. Salud (1957), the use of thumbprint was allowed. iii. Icasiano vs. Icasiano, (1964): The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. f. PAGE NUMBERINGS: Numbered correlatively (Art. 805, CC), i.e., Page One of Five pages Acknowledged before a notary public by the testator and the witnesses (Art. 806, CC) i. In the case of Cruz vs. Villasor (1973) the court ruled that the Notary public cannot be considered a third witness. He cannot acknowledge before himself his having signed the will. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Arts. 805 and 806.
g.
4. Special Requirements for Notarial Wills

a. Deaf Mute (Art. 807, CC) i. Testator must personally read the will; or ii. Testator shall personally designate two persons to read the contents and communicate it to him in some practicable manner. b. Blind (Art. 808, CC) i. The will shall be read to the testator twice - By one of the subscribing witnesses and by the notary public acknowledging the will. ii. In the case of Garcia vs. Vasquez (1970), the court considered a testator suffering from Glaucoma as legally blind.
5. Requisites for a holographic will

a. In writing (Art. 804, CC) b. In a language known to the testator (Art. 804, CC) c. Entirely written, dated and signed in the hand of the testator himself (Art. 810, CC)
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IV. QUALIFICATIONS OF WITNESSES TO A NOTARIAL WILL

1. Qualifications (Art. 820, CC) a. Of sound mind b. Aged 18 years or over c. Not blind, deaf or dumb d. Able to read and write 2. Disqualifications (Art. 821, CC) a. Person not domiciled in the Philippines b. Those who have been convicted of falsification, perjury, or false testimony. 3. Interested witness (Art. 823, CC)
General Rule Devises or legacies in favor of a spouse, parent or child who also attests to the will as a witness shall be void Exception If there are three other competent witnesses, the device or legacy shall be valid and the interested witness shall be treated as a mere surplasage
After execution, with consent After execution, validated by testators signature Contemporaneous to the execution of the will
Will is valid, insertion is void. Insertion becomes part of the will. Entire will becomes void because it is not wholly written by the testator. Will is void because it is not written entirely by the testator
VI. INSTITUTION OF HEIRS

(Asked in 94, 05, 06, and 08) Definition (Art. 841, CC) It is an act by virtue of which a testator designates in his will the persons who are to succeed him. Requisites for a valid institution Testator has capacity to make the institution The institution is made in a will Institution is made personally by the testator and is not left to a third person Persons instituted must be identified or identifiable There must be no preterition of compulsory heirs Only the free portion can be disposed of by institution. A voluntary heir who dies before the testator or proves to be incapacitated transmits nothing to his heirs (Art. 851, CC) Three principles in institution of heirs Equality of heirs (Art. 846, CC) Heirs instituted without designation of shares shall inherit in equal parts NOTE: This applies even to institution of full and half-blood siblings. Individuality of institution (Art. 847, CC) Example: I designate A, B, and the children of C. Unless otherwise stated, if C has two children, the estate will be distributed in four equal parts. Simultaneity of institution (Art. 849, CC) Example: I designate my brother A and his children. A and his children will inherit at the same time, unless otherwise expressly
Creditors are not incompetent to be witnesses (Art. 824, CC) Supervening incompetency shall not prevent the allowance of the will (Art. 822, CC)
V. AMENDING A WILL
Notarial Will NOTARIAL codicil ONLY Holographic WIll Notarial Codicil; or Holographic Codicil; or Additional dispositions below the signature, dated and signed in the hand of the testator.
Codicil (Art. 825, CC)- it is a supplement or addition to a will, made AFTER the execution and annexed to be taken as part thereof, by which any disposition made in the original is explained, added to, or altered. Effect of insertion written by another person on the validity of a holographic will
Effect Insertion considered not written. Validity cannot be defeated by the malice or caprice of a third person
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When made After the execution, without consent of testator
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stated that they successively.
will
inherit
Institution based on a false cause (Art. 850, CC)

EXCEPTION If the testator would not have made the institution had he known the false cause, the institution would NOT take effect
GENERAL RULE False cause is considered not written and the institution will take effect
17, CC); or 2. Law of the place where the testator resides; or 3. Law of the testators country; or 4. Philippine Law (Art. 816, CC)
C. Aspects of the Will Governed by the National Law of the Decedent

(Arts. 16 and 1039, CC) 1. Order of succession; 2. Amount of successional rights; 3. Intrinsic validity of testamentary provisions; and 4. Capacity to succeed.
Example: I designate A to half of the estate ONLY because he is the husband of my daughter. Note that the reliance on the false cause must be clear and unmistakable.
VII. APPLICABLE PRINCIPLES OF PRIVATE INTERNATIONAL LAW A. Governing Law As to Time of Execution of Will
Aspect of the Will Formal Validity Intrinsic Validity Governing Law Law in force at the time the will was made Law of decedents nationality at the time of his death (Art. 16, CC)
D. Joint Will
A single testamentary instrument, Which contains the wills of two or more persons, Jointly executed by them, Either for their reciprocal benefit or for the benefit of a third person.
E. Mutual Wills
Executed pursuant to an agreement between two or more persons, Jointly executed by them, Either for their reciprocal benefit or for the benefit of a third person.
B. Governing Law As to Place of Execution of Will

Testator Place of Execution of Will Philippines Outside of the Philippines Governing Law Philippine Law (Art. 16, CC) 1. Law of the country in which it is executed (Art. 17, CC); or 2. Philippine Law (Art. 815, CC) 1. Philippine Law; or 2. Law of the country of which testator is a citizen or subject (Art. 817, CC) 1. Law of the place where the will is executed (Art.
F. Reciprocal Wills
Testators name each other beneficiaries in their own wills, under similar testamentary plans as
Filipino
NOTE: A will that is both joint and mutual is one executed jointly by two or more persons, the provisions of which are reciprocal and which shows on its face the devises are made in consideration of each other. Such is prohibited under Art. 819, CC. Prohibition is applicable only to joint wills executed by Filipinos.
Alien
Philippines
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Outside of the Philippines
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VIII. CODICILS AND INCORPORATION BY REFERENCE A. Codicil

(Arts. 825-826, CC) It is a supplement or addition to a will, Made after the execution of a will, And annexed to be taken as a part of the will, By which any disposition made in the original will is explained, added to, or altered. In order that it may be effective, it shall be executed as in the case of a will.
B. Law Governing Revocation

(Art. 829, CC)
Place of Revocation Philippines Testators Domicile Philippines, or some other country Philippines Governing Law Philippine Law Philippine Law 1. Law of the place where the will was made; or 2. Law of the place in which the testator had his domicile at the time of revocation
Outside the Philippines
Foreign Country
B. Incorporation by Reference
(Art, 827, CC) Requisites: 1. The document or paper referred to in the will must be in existence at the time of the execution of the will. 2. The will must clearly describe and identify the same, stating among other things the number of pages thereof. 3. It must be identified by clear and satisfactory proof as the document or paper referred to therein; and 4. It must be signed by the testator and the witnesses on each and every page, except in case of voluminous books of account or inventories.
C. Doctrine of Dependent Relative Revocation

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

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

It is a Special Proceeding required to establish the validity of a will and in order to pass real or personal property (Art. 838, CC) GENERAL RULE: In probate proceedings, the probate court cannot inquire into the intrinsic validity of testamentary provisions. Only the extrinsic validity of such wills may be examined. EXCEPTIONS: Balanay, Jr. vs. Martinez, (1975): When the will is intrinsically void, on its face Valera vs. Inserto, (1987): Claimants are all heirs, and they
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consent, either, expressly or impliedly, to the submission of the question of intrinsic validity to the court. Pastor vs. CA, (1983): Probate court may pass upon the title thereto, but such determination is provisional and not conclusive, and is subject to the final decision in a separate action to resolve title. Mercado vs. Santos, (1938): Probate of a will bars criminal prosecution of the alleged forger of the probated will.
REVOCATION VS. DISALLOWANCE

Revocation Voluntary Act of the Testator With or Without Cause May be partial or total Disallowance Given by Judicial Decree Must always be for a legal cause Always total, except when the ground of fraud of influence for example affects only certain portions of the will
XI. SUBSTITUTION OF HEIRS A. Definition of Substitution

(Art. 857, CC) It is the appointment of another heir, So that he may enter into the inheritance in default of the heir originally instituted.
B. Matters to be Proved in Probate

1. Whether the instrument which is offered for probate is the last will and testament of the decedent 2. Whether the will has been executed in accordance with the formalities prescribed by law 3. Whether the testator had testamentary capacity at the time of execution of the will
B. Classes of Substitution
1. Simple or Common The testator may designate one or more persons to substitute the heir/s instituted in case the heirs should: a. die before him (predecease), b. should not wish to accept the inheritance (repudiation), or c. should be incapacitated to accept the inheritance (incapacitated). (Art. 859, CC) 2. Brief or Compendious (Art. 860, CC) a. Brief Two or more persons were designated by the testator to substitute for only one heir b. Compendious One person is designated to take the place of two or more heirs 3. Reciprocal If the heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or is incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there is more than one substitute, they shall have the same share in the substitution as the institution. 4. Fideicommissary If the testator institutes an heir with an obligation to preserve and to
C. Grounds for Disallowance of Will

(Art. 839, CC) NOTE: This list on the grounds for disallowance of will is exclusive. FIFU SM 1. If the Formalities required by law have not been complied with; 2. If the testator was Insane or otherwise mentally incapable of making a will at the time of its execution; 3. If it was executed through Force or under duress, or the influence of fear, or threats; 4. If it was procured by Undue and improper pressure and influence, on the part of the beneficiary or some other person; 5. If the Signature of the testator was procured by fraud; or 6. If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time affixing his signature thereto.
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deliver to another the property so inherited. The heir instituted to such condition is called the First Heir or the Fiduciary Heir; the one to receive the property is the fideicommissary of the second heir. (Art. 863, CC)
XII. LEGITIMES A. Definition of Legitime

(Art. 886, CC) It is that part of the testators property which he cannot dispose of, Because the law has reserved it for his compulsory heirs.
C. Requisites for a Fideicommissary Substitution

(Arts. 863-865, CC) 1. A Fiduciary or First Heir instituted is entrusted with the obligation to preserve and to transmit to a Fideicommissary Substitute or Second Heir the whole or part of the inheritance. 2. The substitution must not go beyond one degree from the heir originally instituted. 3. The Fiduciary Heir and the Fideicommissary are living at the time of the death of the testator.
B. Classes of Compulsory Heirs

(Art. 887, CC) 1. Primary Those who have precedence over and exclude other compulsory heirs: a. Legitimate Children and Legitimate Descendants with respect to their Legitimate Parents and Ascendants 2. Secondary Those who succeed only in the absence of the Primary compulsory heirs: a. Legitimate Parents and Legitimate Ascendants, with respect to their Legitimate Children and Descendants, b. Illegitimate Parents with respect to their Illegitimate Children. 3. Concurring Those who succeed together with the primary or the secondary compulsory heirs: a. Widow or Widower / Surviving Spouse (Legitimate) b. Illegitimate Children and Illegitimate Descendants Legend: LC Legitimate Children ILC Illegitimate Children SS Surviving Spouse LP Legitimate Parents ILP Illegitimate Parents COMPULSORY HEIRS
If the testator is a LEGITIMATE CHILD: 1. LC and descendants 2. In default of No. 1, LP and ascendants 3. SS 4. IC and descendants If the testator is an ILLEGITIMATE CHILD: 1. LC and descendants 2. ILC and descendants 3. In default of Nos. 12. ILP only 4. SS
4. The fideicommissary substitution must be expressly made. 5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime.
D. Effects of predecease of the first heir/fiduciary or the second heir/fideicommisary

Legend: T Testator FH First Heir / Fiduciary SH Second Heir / Fideicommissary Substitute Situation 1: If the following is the sequence of death of the three parties: FH SH T, who will inherit? The legal heirs. Situation 2: T SH FH, who will inherit? The SH and his heirs under Art. 866, CC. Situation 3: FH T SH, who will inherit? No specific provision in law, but SH inherits because the T intended him to inherit.
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C. Specific Rules on Legitimes

1. Direct Descending Line a. Rule of Preference between lines Those in the direct descending line shall exclude those in the direct ascending and collateral lines; and Those in the direct ascending line shall, in turn, exclude those in the collateral line. b. Rule of Proximity The relative nearest in degree excludes the farther one c. Right or representation ad infinitum in case of predecease, incapacity, or disinheritance For decedents who are Legitimate Children, only the
Legitimate Descendants are entitled to right of representation. For decedents who are Illegitimate Children, both the Legitimate and the Illegitimate Descendants can represent, only with respect to the decedents illegitimate parents.
d. If all the Legitimate Children repudiate their legitime, the next generation of Legitimate Descendants may succeed in their own right. 2. Direct Ascending Line a. Rule of division by lines b. Rule of equal division The relatives who are in the same degree shall inherit in equal shares.
D. Summary of Legitimes of Compulsory Heirs

(Asked in 82, 85, 86, 97, 99, 03, and 05)
Surviving Relatives LC alone 1 LC, SS LC, SS LC, ILC 1 LC, SS, ILC 2 or more LC, SS, ILC LP alone LP, ILC LP, SS LP, SS, ILC ILC alone ILC, SS SS alone LC & Descendants (divided by # of children) (divided by # of children) (divided by # of children) (preferred) Same as share of 1 LC SS ILC LP & Ascendants ILP
1 2 3 4 5 6 7 8 9 10 11 12 13
Same as share of 1 LC share of 1 LC share of 1 LC share of 1 LC

1/8
1/3
(divided by # of children) 1/3 (divided by # of children)
or 1/3 if marriage in articulo mortis

1/3 1/3 1/3
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14 15 16
ILP alone ILP, SS Adopter, ILC, SS
(adopter)
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E. Steps in Determining the Legitime of Compulsory Heirs

1. Determine the gross value of the estate at the time of the death of the testator. 2. Determine all debts and charges which are chargeable against the estate. 3. Determine the net value of the estate by deducting all the debts and charges from the gross value of the estate. 4. Collate or add the value of all donations inter vivos to the net value of the estate. 5. Determine the amount of the legitime from the total thus found. 6. Impute the value of all donations inter vivos made to strangers against the disposable free portion and restore it to the estate if the donation is inofficious. 7. Distribute the residue of the estate in accordance with the will of the testator. NOTE: Please see the Illustrative Integrative Problems in Chapter VI for the application of these steps.
4. The omitted compulsory heir must be living at the time of the testators death or must at least have been conceived before the testators death.
B. Effects of Preterition
(Art. 854, CC) 1. The institution of the heir is annulled. 2. Devises and legacies shall remain valid as long as they are not inofficious. 3. If the omitted compulsory heir should die before the testator, the institution shall be effective, without prejudice to the right of representation.
XIV. RESERVA TRONCAL

(Asked in 79, 82, 85, and 87)
A. Concept of Reserva Troncal

(Art. 891, CC) The ascendant who inherits from his descendant, Any property which the latter may have acquired by gratuitous title, From another ascendant, or a brother or sister, Is obliged to reserve such property, As he may have acquired by operation of law, For the benefit of relatives within the third degree, And who belong to the line from which said property came.
F. Remedy of a Compulsory Heir in case of Impairment of Legitime

1. If the impairment is total, then there may be preterition if the compulsory heir omitted is either an ascendant or descendant, Art. 854, CC would come in to play, i.e., there will be an annulment of the institution of heirs and a reduction of devises and legacies. 2. If the impairment is partial, then the compulsory heir is entitled to completion of legitime under Art. 906, CC. 3. If the impairment is through donation, the remedy is collation.
B. Requisites for Reserva Troncal

(Chua vs. CFI and Gonzales vs. CFI) 1. That the property was acquired by a descendant (Prepositus) from an ascendant or from a brother or sister (Source) by gratuitous title, 2. That the Prepositus died without an issue, 3. That the property is inherited by another ascendant (Reservista) by operation of law, and 4. That there are relatives within the 3rd degree (Reservatarios) belonging to the line from which said property came.
XIII. PRETERITION
(Asked in 88, 99, 00, 01 and 08)
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A. Concept of Preterition
(Art. 854, CC) 1. There must be a total omission of one, some or all of the heir/s in the will. 2. The omission must be that of a compulsory heir. 3. The compulsory heir omitted must be of the direct line.
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Legend: A Source E Prepositus G Reservista C Reservatario

A B F G
XV. DISINHERITANCE
(Asked in 82, 84, 99, 00, and 08)
A. Definition of Disinheritance
(Art. 915, CC) It is the act by which the testator For just cause Deprives a compulsory heir of his right to the legitime.
B. Requisites for Disinheritance

E
Valid
NOTE: In the given diagram, The cross sign signifies the death of the person denoted therein. A (Source) transmitted property by gratuitous title in favor of E (Prepositus). Subsequently, H (Reservista) inherited such property by operation of law from E (Prepositus) H (Reservista) is obliged to preserve and transmit such property to C (Reservatario).
1. Heir disinherited must be designated by name or in such a manner as to leave no room for doubt as to who is intended to be disinherited. 2. It must be for a cause designated by law. 3. It must be made in a valid will. 4. It must be made expressly, stating the cause in the will itself. 5. The cause must be certain and true, and must be proved by the interested heir if the person should deny it. 6. It must be unconditional. 7. It must be total.
C. Summary of Causes of Disinheritance

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
Art, Art. Art. Art.
919, CC: Children and Descendants 920, CC: Parents and Ascendants 921, CC: Spouse 1032, CC: Unworthiness
919 * * * * * * * * * * * * * * * * *
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Grounds for Disinheritance Guilty or Convicted of Attempt Against the Life of the Testator, Spouse, Ascendant or Descendant Accused Testator or Decedent of Crime Punishable by Imprisonment of 6 years or more, and Found Groundless or False Causes testator or decedent to Make a Will or Change one by Fraud, Violence, Intimidation, or Undue Influence Unjustified Refusal to Support Testator Convicted of Adultery or Concubinage with Spouse of Testator or Decedent Maltreatment of testator by Word and Deed Leading a Dishonorable or Disgraceful Life Conviction of Crime which carries the penalty of Civil Interdiction Abandonment of Children or Inducing Children to Live Corrupt and Immoral Life or Against Attempted Virtue Loss of Parental Authority Attempt by One Parent Against the Life of the Other UNLESS there is Reconciliation Between Parents Spouse Has Given Cause for Legal Separation Failure to Report Violent Death of Decedent Within One Month UNLESS Authorities Have Already Taken Action Force, Violence, Intimidation, or Undue Influence to Prevent Another from Making a Will or Revoking One Already Made or Who Supplants or Alters the Latters Will Falsifies or Forges Supposed Will of the Decedent
920 * * * * *
921 * * * *
1032 * * *
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D. Modes of Revocation Disinheritance
of
C. Validity and Effect of Legacy or Devise

1. Legacy or devise of a thing belonging to another (Art. 930, CC)
STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE Testator erroneously believed that the property belonged to him The thing bequeathed afterwards becomes his by whatever title EFFECT ON THE LEGACY/ DEVISE Void Effective
1. Reconciliation 2. Subsequent institution of the disinherited heir 3. Nullity of the will which contains the disinheritance. NOTE: The moment that testator uses one of the acts of unworthiness as a cause for disinheritance, he thereby submits it to the rules on disinheritance. Thus, reconciliation renders the disinheritance ineffective.
XVI. LEGACIES AND DEVISES A. Legacy and Devise, Distinguished

LEGACY A gift of personal property given in a will It is bequeathed. DEVISE A gift of real property given in a will It is devised.
2. Legacy or devise of thing already belonging to the legatee or devisee

STATUS OF PROPERTY GIVEN BY LEGACY/DEVISE The thing already belongs to the legatee or devisee at the time of the execution of the will (Art. 932, CC) The thing is subject to an encumbrance or interest of another person (Art. 932, CC) Legatee or devisee subsequently alienates the thing (Art. 933,CC) After alienating the thing, the legatee or devisee subsequently reacquires it gratuitously (Art. 933, CC) After alienating the thing, the legatee or devisee acquires it by onerous title (Art. 933, CC) EFFECT ON THE LEGACY/DEVISE Ineffective
B. Persons Charged With the Duty to Give Legacies and Devises in a Will
1. Compulsory heir, provided, their legitimes are not impaired (Art. 925, CC) 2. Voluntary heir 3. Legatee or devisee can be charged with the duty of giving a sub-legacy or sub-devisee but only to the extent of the value of the legacy or devise given him (Art. 925, CC) 4. The estate represented by the executor or administrator, if no one is charged with this duty to pay or deliver the legacy or devise in the will a. If there is an administration proceeding, it constitutes a charge upon the estate. b. If there is no administration proceeding, it is a charge upon the heirs.
Valid only as to the interest or encumbrance Ineffective Ineffective
Legatee or devisee can demand reimbursement from the heir or estate
D. Different Objects and Devises

(Art. 934-944,CC)
of
Legacies
1. Legacy of a thing pledged or mortgaged to secure a debt 2. Legacy of credit, or remission or release of a debt 3. Legacy to the debtor of thing pledged by him 4. Legacy or devise to a creditor if the testator orders the payment of a debt 5. Alternative legacies and devises 6. Legacy of generic personal property or indeterminate real property 7. Legacy of education 8. Legacy of support
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OBJECTS OF LEGACY OR DEVISE Thing pledged or mortgaged to secure a debt Credit or remission or release of a debt
Thing pledged by debtor To a creditor Order of payment of a debt
EFFECT Estate is obliged to pay the debt Other charges pass to the legatee or devisee Effective only as regards the credit or debt existing at the time of the testators death Legacy lapses if the testator later brings action against the debtor If generic, comprises all credits/debts existing at time of execution of will Only the pledge is extinguished; the debt remains Shall not be applied to his credit unless the testator so declares If testator does not really owe the debt, the disposition is void If the order is to pay more that the debt, the excess is not due This is without prejudice to the payment of natural obligations The choice is with the heir, or the executor or administrator If the heir, legatee or devisee dies the right passes to their heirs Once made, the choice is irrevocable Legacy is valid even if there are no things of the same kind in the estate Devise of indeterminate real property valid only if there are immovable property of the same kind in the estate The choice belongs to the heir, legatee or devisee or the executor or administrator Lasts until the legatee is of age or beyond the age of majority in order that he may finish some professional, vocational or general course provided he pursues his course diligently If testator did not fix the amount it is fixed in accordance with the social standing and circumstances of the legatee and the value of the estate Lasts during lifetime of legatee If the testator used to give the legatee a sum of money for support, give the same amount unless it is markedly disproportionate to the estate If testator did not fix the amount it is fixed in accordance with the social standing and circumstances of the legatee and the value of the estate
Alternative legacies and devises
Legacy of generic personal property or indeterminate real property
Legacy of education
Legacy of support
E. Order of Payment In Case the Estate Is Not Sufficient to Cover All the Legacies and Devises
ART. 911 Order of Preference (LIPO) Legitime of compulsory heirs Donations Inter vivos Preferential legacies or devises All Other legacies or devises pro rata ART. 950 Order of Preference (RPSESO) Remuneratory legacy/devise Preferential legacy/devise Legacy for Support Legacy for Education Legacy/devise of Specific, determinate thing which forms a part of the estate All Others pro rata Application: When there are no compulsory heirs and the entire estate is distributed by the testator as legacies or devises; or When there are compulsory heirs but their legitime has already been provided for by the testator and there are no donations inter vivos. NOTE: Art. 950, CC governs when the question of reduction is exclusively among legatees and devisees themselves.
1. 2. 3. 4.
1. 2. 3. 4. 5. 6.
1.
2.
Application: When the reduction is necessary to preserve the legitime of compulsory heirs from impairment whether there are donations inter vivos or not; or When, although, the legitime has been preserved by the testator himself there are donations inter vivos. NOTE: Art. 911, CC governs when there is a conflict between compulsory heirs and the devisees and legatees.
1. 2.
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F. How Legacy or Devise Delivered

(Art. 951, CC) 1. The very thing bequeathed shall be delivered and not its value 2. With all its accessions and accessories 3. In the condition in which it may be upon the death of the testator 4. Legacies of money must be paid in cash
G. Ground for Revocation of Legacies and Devises (Art. 957, CC)

(TALO) *List is NOT exclusive 1. Testator Transforms the thing such that it does not retain its original form or denomination 2. Testator Alienates the thing by any title or for any cause. Reacquisition of the thing by the testator does not make the legacy or devise valid, unless it is effected by right of repurchase. 3. Thing is totally Lost during the lifetime or after the death of the testator 4. Other causes: nullity of will, noncompliance with suspensive condition, sale of the thing to pay the debts of the deceased during the settlement of his estate.
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Chapter III. Legal or Intestate Succession

This 3rd Chapter is a review on the essential provisions and principles involving Legal or Intestate Succession as a mode of disposing the decedents transmissible properties, rights or obligations. There are NINE MAJOR LESSONS in this Chapter. I. Causes for Legal or Intestate Succession II. The Intestate or Legal Heirs III. Fundamental Underlying Principles in Legal or Intestate Succession IV. Relationship V. The right of Representation VI. Order of Legal or Intestate Succession VII. Concurrence in Legal or Intestate Succession VIII. Outline of Intestate Shares IX. Order of Concurrence in the case of an Adopted Child
12. Upon fulfillment if a resolutory condition attached to the institution of heir, rendering the will ineffective 13. Non-compliance or impossibility of compliance with the will NOTE: In all cases where there has been an institution of heirs, follow the I.S.R.A.I order 1. If the Institution fails, Substitution occurs. 2. If there is no substitute, the right of Representation applies in the direct descending line to the legitime if the vacancy is caused by predecease, incapacity, or disinheritance. 3. The right of Accretion applies to the free portion when the requisites in Art. 1016 are present. 4. If there is no substitute, and the right of Representation or Accretion are not proper, the rules on Intestate succession shall apply.
The Civil Code does not state a definition of legal or intestate succession. Art. 960 only enumerates the instances when legal succession takes place. This enumeration is not exclusive, as there are other instances where intestacy may occur, as listed below.
II. THE INTESTATE HEIRS
OR
LEGAL
I. CAUSES FOR LEGAL INTESTATE SUCCESSION
OR
1. If a person dies without a will 2. If a person dies with a void will 3. If a person dies with a will which has subsequently lost its validity 4. When the will does not institute an heir 5. When the will does not dispose of all the property belonging to the testator. Legal succession shall take place only with respect to the property which the testator has not disposed 6. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled 7. If the heir dies before the testator 8. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place 9. When the heir instituted is incapable of succeeding, except in cases provided in the Civil Code 10. Preterition Intestacy may be total or partial depending on whether or not there are legacies or devises 11. Upon the expiration of a resolutory term attached to the institution of heir
1. Relatives a. Legitimate ascendants b. Illegitimate parents c. Legitimate children d. Illegitimate children e. Surviving Spouse f. Brothers, sisters, nephews and nieces (BSNN) g. Other collateral relatives 2. Surviving spouse 3. State (through escheat proceedings)
III.FUNDAMENTAL UNDERLYING PRINCIPLES IN LEGAL OR INTESTATE SUCCESSION

1. Rule of Preference Between Lines a. Those in the direct descending line shall exclude those in the direct ascending and collateral lines; b. Those in the direct ascending line shall, in turn, exclude those in the collateral line. 2. Rule of Proximity the relative nearest in degree excludes the farther one. (Art. 962, CC), saving the right of representation when it properly takes place. 3. Rule of Equal Division the relatives who are in the same degree shall inherit
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in equal shares. (Arts. 987 and 1006, CC) Exceptions: a. Division in the ascending line (between paternal and maternal grandparents) b. Division among brothers and sisters, some of whom are of the full and others of half-blood c. Division in cases where the right of representation takes place 4. Rule of Barrier between the legitimate family and the illegitimate family (the iron-curtain rule) the illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. (Art. 992, CC) Iron-curtain rule: Asked in 83, 84, 93, and 07) 5. Rule of Double Share for full blood collaterals when full and half-blood brothers or sisters, nephews or nieces, survive, the full blood shall take a portion in the inheritance double that of the half-blood. (Arts. 895 and 983, CC) NOTE: If one of the legitimate ascendants, illegitimate parents, legitimate children or illegitimate children survives, the brother, sisters, nephews, and nieces (BSNN) are excluded If one of the legitimate ascendants, illegitimate parents, legitimate children, illegitimate children or surviving spouse survives, the other collateral relatives and the state are excluded. If any of the heirs concur in legitimes, then they also concur in intestacy.
6.
7. 8. 9.
descendants (ascending and descending). A collateral line is that constituted by the series of degrees among persons who are not ascendants or descendants, but who come from a common ancestor. Full blood same father and mother. Half-blood only one of either parent is the same. In adoption, the legal filiation is personal and exists only between the adopter and the adopted. The adopted is deemed a legitimate child of the adopter, but still remains as an intestate heir of his natural parents and other blood relatives. (Art. 189, FC)
V. THE RIGHT OF REPRESENTATION (Art. 970, CC)

(Asked in 77, 82, 85, 88, 92, 97, and 07) It is a right created by fiction of law; By virtue of which the representative is raised to the place and degree of the person represented; And acquires the rights which the latter would have if he were living or if he would have inherited.
IMPORTANT CONCEPTS: 1. Representation is only allowed with respect to inheritance conferred by law (i.e., as to legitimes and intestate shares), in cases of incapacity, disinheritance, and predecease of an heir. There is no representation in voluntary succession (by will). There is also no representation in repudiation. Note, however that a renouncer can represent, but cannot be represented. Representation takes place ad infinitum in the direct descending line but never in the direct ascending line. In the collateral line, representation takes place only in favor of the children of the brothers or sisters (i.e., nephews and nieces) whether of the full or halfblood (Art. 972, CC) and only if they concur with at least one uncle or aunt. In this case, they share in the inheritance per stirpes. If the children survive alone, they inherit in their own
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2. 3.
* Please refer to the Outline of the Intestate Shares (Part VIII of this Chapter) for the application of these rules.
4.
IV. RELATIONSHIP (Arts. 963 969, CC)

1. Number of generations determines proximity. 2. Each generation forms a degree. 3. A series of degrees forms a line. 4. A line may either be direct or collateral. 5. A direct line is that constituted by the series of degrees among ascendants and
5.
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right and share in equal proportions or per capita. 6. Inheritance per stirpes means that the representative/s shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (Art.975, CC) The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (Art. 977, CC) GENERAL RULE: Grandchildren inherit from the grandparents by right of representation, if proper. EXCEPTION: Whenever all the children repudiate, the grandchildren inherit in their own right because representation is not proper. 9. Right of representation in the collateral line is only possible in INTESTATE succession. It cannot take place in testamentary succession.
Illustration: (*Note: Broken lines indicate an illegitimate relationship.)

A
7.
8.
In
10. In determining whether or not representation is proper, apply the DOUBLE HEIRSHIP TEST (Art. 973, CC): the representative must be a legal heir of both the person he is representing and the decedent. 11. Thus, illegitimate children can represent illegitimate children parents in inheritance from illegitimate grandparents. (*Rationale: Iron-curtain rule under Art. 992, CC) 12. On the other hand, a legitimate child may represent either a legitimate or illegitimate parent in the inheritance of either a legitimate or illegitimate grandparents.
this case: G can represent C in the inheritance of A. F can represent C in the inheritance of A. D can represent B in the inheritance of A. E cannot represent B in the inheritance of A, as he is barred by Art. 992 being a legitimate relative of the illegitimate parent. H can represent G in the inheritance of A. I cannot represent F in the inheritance of A, as he is barred by Art. 992, CC. He cannot represent in inheritance of C, so he cannot also represent in inheritance of A. (From Prof. Danilo L. Concepcions lectures in Succession)
A. Representation in Adoption
(Asked in 94, 04, and 07) If the adopting parent should die before the adopted child, the later cannot represent the former in the inheritance of the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because filiation created by fiction of law is exclusively between the adopter and the adopted. (TOLENTINO)
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VI. ORDER OF LEGAL OR INTESTATE SUCCESSION

(Asked in 77, 78, 97, 98, 99, 00, 06, and 08)
DECEDENT IS A LEGITIMATE CHILD 1 2 3 4 5 6 7 LC and Legitimate descendants LP and Legitimate ascendants ILC and Illegitimate descendants SS Legitimate siblings, Nephews, Nieces Legitimate collateral relatives within the 5th degree State DECEDENT IS AN ILLEGITIMATE CHILD LC and Legitimate descendants ILC and Illegitimate descendants ILP SS Illegitimate siblings, Nephews, Nieces State DECEDENT IS AN ADOPTED CHILD LC and Legitimate descendants ILC and Illegitimate descendants LP or ILP and Legitimate ascendants, Adoptive parents SS Siblings, Nephews, Nieces State
VII. CONCURRENCE IN LEGAL OR INTESTATE SUCCESSION

INTESTATE HEIRS LC and Legitimate descendants ILC and Descendants LP and Legitimate ascendants ILP SS EXCLUDES Ascendants, Collaterals and State ILP, Collaterals and State Collaterals and State Collaterals and State Collaterals other than siblings, nephews and nieces All other collaterals and State Collateral more remote in degree and State No one EXCLUDED BY No one No one LP LC LC and ILC No one SS SS LC, ILC, LP, ILP Siblings Nephews Nieces SS Collaterals in the same degree No one ILC and CONCURS WITH SS and ILC SS LC and
Siblings, Nephews Nieces Other collaterals within 5th degree State
LC, ILC, LP, ILP LC, ILC, LP, ILP and SS Everyone
VIII. OUTLINE OF INTESTATE SHARES

(Asked in 76, 79, 92, 03, 04, 06, and 08)
the latter deemed as one child. The same rule holds where there is only one child. Children as used in Art. 996 is interpreted to include a situation where there is only one child. 4. Legitimate children. Surviving spouse, and Illegitimate children - Divide the entire estate such that the surviving spouse is deemed one legitimate child and each illegitimate child getting of what the legitimate child gets (Art. 996, CC and Art. 176, FC) 5. Legitimate parents only - Divide the entire estate equally. (Art. 985, CC)
1. Legitimate children only - Divide entire estate equally among all legitimate children (Art. 979, CC) - Legitimate children include an adopted child. 2. Legitimate children and Illegitimate children - Divide entire estate such that each illegitimate child gets of what a legitimate child gets (Art. 983, CC and Art. 176, FC) 3. Legitimate children and surviving spouse - Divide entire estate equally between the legitimate children and the surviving spouse,
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6. Legitimate ascendants only (excluding parents) - Divide the entire estate equally but with the observance of the rule of division by line (Art. 987, CC) 7. Legitimate parents and illegitimate children - Legitimate parents get of the estate, illegitimate children get the other (Art. 991,CC) 8. Legitimate parents and surviving spouse - Legitimate parents get of the estate; The surviving spouse gets the other (Art. 997,CC) 9. Legitimate parents, surviving spouse and illegitimate children - Legitimate parents get of the estate; surviving spouse and the illegitimate child each get each, the latter to share among themselves if more than one. (Art. 1000, CC) 10. Illegitimate children only - Divide the entire estate equally. (Art. 988, CC) 11. Illegitimate children and surviving spouse - Illegitimate children get of the estate; the surviving spouse gets the other . 12. Surviving spouse only - Entire estate goes to the surviving spouse. (Art. 994/995, CC) 13. Surviving spouse and illegitimate parents - Illegitimate parents get and the spouse gets the other (by analogy with Art. 997, CC) 14. Surviving spouse and legitimate brothers and sisters, nephews and nieces - Surviving spouse gets of the estate, while the rest gets the other with the nephews and nieces inheriting by representation if proper. (Art. 1001, CC) 15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces - Surviving spouse gets of the estate while the rest gets the other with the nephews and nieces inheriting by representation, if proper; Note that all the other relatives should be illegitimate because of the iron-curtain rule. (Art. 994,CC) 16. Illegitimate parents only - Entire estate goes to the illegitimate parents. 17. Illegitimate parents and children of any kind (whether legitimate or illegitimate child)
- Illegitimate parents are excluded and do not inherit; For the rule on the respective shares of the children, see numbers 1, 2 or 10, whichever is applicable. 18. Legitimate brothers and sisters only - Divide the entire estate such that full-blood brothers/sisters gets a share double the amount of a half-blood brother or sister. (Art. 1004 and 1006, CC) 19. Legitimate brothers and sisters, nephews and nieces - Divide the entire estate observing the 2 is to 1 ratio for full and half blood relationships with respect to the brothers and sisters, with the nephews and nieces inheriting by representation, if proper. (Art. 1005 & 1008, CC) 20. Nephews and nieces only - Divide the entire estate per capita, observing the 2 is to 1 ratio. 21. Other collaterals - Divide entire estate per capita. - Collateral relatives must be with the 5th degree of consanguinity. - Note: the nearer relative excludes the more remote relatives. 22. State - If there are no other intestate heirs, the State inherits the entire estate through escheat proceedings.
IX. ORDER OF CONCURRENCE IN THE CASE OF AN ADOPTED CHILD (Art. 190, FC)
(Asked in 79, 86, 04 and 07)
SURVIVORS LC, ILC, SS LP or ascendants or ILP Adopter LP or ascendants or ILP or Adopter SS LP or ascendants Adopter ILC or descendants LP or ascendants Adopter SS ILC or descendants Adopter alone Collateral blood relatives SHARE As in the case of ordinary intestate succession 1/3 1/3 1/3 Entire estate As in the case of ordinary intestate succession
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Chapter IV. Provisions Common to Testamentary and Intestate Successions

This 4th Chapter is a review on the provisions and concepts applicable to both testamentary and intestate succession. There are FOUR MAJOR LESSONS in this Chapter. I. Accretion II. Capacity to Succeed III. Acceptance or Repudiation of Inheritance IV. Collation
receive his share or who died before the testator is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. 1. Accretion happens when there repudiation, incapacity, predecease of an heir. is or
2.
It is the mechanism where the share of an heir is increased by vacant shares vacated by heirs who cannot inherit for various reasons. (RATIONALE: the decedent intended to give the property to nobody but the co-heirs.) There can only be accretion if there is an institution of heirs with respect to specific properties. Among compulsory heirs, there can only be accretion with respect to the free portion. There can be no accretion with respect to the legitimes.
I. ACCRETION A. Definition of Accretion

(Art. 1015, CC) It is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to one who renounces or cannot
3.
4.
B. Effect of Predecease, Incapacity, Disinheritance or Repudiation in Testamentary and Intestate Succession

CAUSE OF VACANCY Predecease Incapacity Disinheritance Repudiation TESTAMENTARY SUCCESSION LEGITIME FREE PORTION Representa-tion Accretion Intestate Succession Intestate Succession Representa-tion Intestate Succession Representa-tion Intestate Succession Intestate Succession Accretion Intestate Succession Accretion INTESTATE SUCCESSION Representation Intestate Succession Representation Intestate Succession Accretion
II. CAPACITY TO SUCCEED A. Requisites for Capacity to Succeed by Will or by Intestacy

(Art. 1024 1025, CC) 1. The heir, legatee or devisee must be living or in existence at the moment the succession opens; and 2. He must not be incapacitated or disqualified by law to succeed.
B. Who Are Incapable of Succeeding

1. BASED ON UNDUE INFLUENCE OR INTEREST (Art. 1027, CC) PIGRAP a. Priest who heard the last confession of the testator during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period; b. Individuals, associations and corporations not permitted by law to inherit; c. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; except if the guardian is his ascendant, descendant, brother, sister, or spouse; d. Relatives of the priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;
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e. Attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; f. Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. 2. BASED ON MORALITY OR PUBLIC POLICY (Art. 739, CC) a. Those made in favor of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. b. Those made in consideration of a crime of which both the testator and the beneficiary have been found guilty. c. Those made in favor of a public officer or his spouse, descendants and ascendants, by reason of his public office. 3. BASED ON ACTS OF UNWORTHINESS (Art. 1032, CC) See table under disinheritance in page 15.
C. Acceptance vs. Repudiation

1. Acceptance involves the confirmation of transmission of successional rights, while repudiation renders such transmission ineffective. 2. Repudiation is equivalent to an act of disposition and alienation. 3. The publicity required for repudiation is necessary for the protection of other heirs and also of creditors.
D. Forms of Acceptance (Arts. 1049

1050, CC) 1. Express Acceptance one made in a public or private document. 2. Tacit Acceptance one resulting from acts by which the intention to accept is necessarily implied or from acts which one would have no right to do except in the capacity of an heir. Examples would be when the heir sells, donates or assigns his right, when the heir demands partition of the inheritance, when the heir alienates some objects of the inheritance, etc.
C. Pardon of Acts of Unworthiness

EXPRESS Made by the execution of a document or any writing in which the decedent condones the cause of incapacity Cannot be revoked IMPLIED Effected when the testator makes a will instituting the unworthy heir with knowledge of the cause of incapacity Revoked when the testator revokes the will or the institution
E. Forms of Repudiation (Art. 1051, CC)

1. in a public instrument acknowledged before a notary public; or 2. in an authentic document equivalent of an indubitable writing or a writing whose authenticity is admitted or proved; or 3. by petition presented to the court having jurisdiction over the testamentary or intestate proceeding
III. ACCEPTANCE AND REPUDIATION OF INHERITANCE A. Characteristics VIR (Arts. 1041

1042, 1056, CC) 1. Voluntary and free 2. Irrevocable except if there is vitiation of consent or an unknown will appears 3. Retroactive
F. Heirs in Two Capacities

(Art. 1055, CC) If a person is called to the same inheritance as an heir by will and by law and he repudiates the inheritance in his capacity as a testamentary heir, he will be considered to have also repudiated the inheritance as a legal heir. If he repudiates it as a legal heir, without his being a testamentary heir, he may still accept it in the latter capacity.
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B. Requisites (Art. 1043, CC)

1. Certainty of death of the decedent 2. Certainty of the right to the inheritance
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IV. COLLATION (Arts. 1061 1077, CC)

(Asked in 77, 78, 79, and 93)
A. Concept of Collation
To collate is to bring back or to return to the hereditary mass in fact or by fiction property which came from the estate of the decedent, during his lifetime by donation or other gratuitous title but which the law considers as an advance from the inheritance. It is the act by virtue of which, the compulsory heir who concurs with other compulsory heirs in the inheritance bring back to the common hereditary mass the property which they may have received from the testator so that a division may be effected according to law and the will of the testator. In reducing inofficious donations, the last to be donated should be the first to be reduced. RATIONALE FOR COLLATION: If donations inter vivos will not be collated, then the rule on legitimes shall be circumvented or disregarded.
right of representation if their parent repudiates the inheritance of the grandparent, as no living person can be represented except in cases of disinheritance and incapacity. In this case, the grandchildren are not obliged to bring to collation what their parent has received gratuitously from their grandparent.
D. What to Collate
Any property or right received by gratuitous title during the testators lifetime All that they may have received from the decedent during his lifetime. All that their parents would have brought to collation if alive.
E. Properties Not Subject to Collation

1. Absolutely no collation i. Expenses for support, education (only elementary and secondary), medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts. (Art. 1067, CC) 2. Generally not imputable to legitime/ cannot be collected, subject to exceptions i. Expenses incurred by parents in giving their children professional, vocational or other career unless the parents so provide, or unless they impair the legitime. ii. Wedding gifts by parents and ascendants, consisting jewelry, clothing and outfit, except when they exceed 1/10 of the sum disposable by will.
B. Operations Related to Collation

1. Collation adding to the mass of the hereditary estate the value of the donation or gratuitous disposition. 2. Imputing or Charging crediting the donation as an advance on the legitime (if the donee is a compulsory heir) or on the free portion (if the donee is a stranger). 3. Reduction determining to what extent the donation will remain and to what extent it is excessive or inofficious. 4. Restitution returning or the act of payment of the excess to the mass of hereditary estate.
C. Persons Obliged to Collate

1. GENERAL RULE: Compulsory heirs EXCEPTIONS: a. when the testator should have so expressly provided b. when the compulsory heir should have repudiated his inheritance 2. Grandchildren who survive with their uncles, aunts, or first cousins and inherit by right of representation 3. *Note: Grandchildren may inherit from their grandparent in their own right, i.e., as heirs next in degree, and not by
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Chapter V. Partition and Distribution of Estate

This 5th Chapter deals with the topic of partition and distribution of a decedents estate. Specifically, this Chapter deals with definitions, concepts, and principles underlying partition and distribution. There are Chapter: I. II. III. IV. FOUR MAJOR TOPICS in this
PIECES OF PROPERTY ON THE BASIS OF THE PRO-INDIVISO SHARES FIXED BY LAW OR GIVEN UNDER THE WILL TO HEIRS OR SUCCESSORS. (ART. 1080, CC)
B. How to Effect Partition

1. WHO MAY EFFECT PARTITION i. The Decedent, during his lifetime by an act inter vivos or by will (Art.1080, CC) ii. The decedents heirs (Art.1083, CC) iii. A competent court (Art. 1083,CC) iv. A third person designated by the decedent (Art.1081, CC) WHO CAN DEMAND PARTITION i. Compulsory heir ii. Voluntary heir iii. Legatee or devisee iv. Any person who has acquired interest in the estate WHEN PARTITION CANNOT BE DEMANDED i. When expressly Prohibited by the testator for a period not exceeding 20 years ii. When the co-heirs Agreed that the estate shall not be divided for a period not exceeding 10 years, renewable for another 10 years iii. When Prohibited by law iv. When to partition the estate would render it unserviceable for the use for which it is intended PROHIBITION TO PARTITION i. The prohibition to partition for a period not exceeding 20 years can be imposed on the legitime. ii. If the prohibition to the partition is for more than 20 years, the excess is void. iii. Even if a prohibition is imposed, the heirs by mutual agreement can still make the partition.
The Concept of Partition The Effects of Partition Nullification of Partition Important Periods in Partition
I. IMPORTANT PARTITION
CONCEPTS
IN
2.
Partition is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself or its value may be divided. (Art. 1079, CC) Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction. (Art. 1082, CC) A void will may be a valid partition if: the will was in fact a partition the beneficiaries of the void will were legal heirs The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (Art. 1089 CC)
3.
4.
A. Kinds of Partition
1. JUDICIAL V. EXTRA-JUDICIAL PARTITION i. Judicial Partition done by Court pursuant to an Order of Distribution which may or may not be based on a project of partition. ii. Extra-judicial partition made by the decedent himself by an act inter vivos or by will or by a third person entrusted by the decedent or by the heirs themselves. (PARAS) Partition Inter Vivos (Asked in 85) I. IT IS ONE THAT MERELY ALLOCATES SPECIFIC ITEMS OR
C. Effects of Inclusion of Intruder in Partition

Between a true heir and several mistaken heirs partition is void. Between several true heirs and a mistaken heir transmission to mistaken heir is void Through error or mistake, share of true heir is allotted to mistaken heir partition shall not be rescinded unless
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2.
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there is bad faith or fraud on the part of the other persons interested, but the latter shall be proportionately obliged to pay the true heir of his share. The partition with respect to the mistaken heir is void.
within ten years from the date the right of action accrues. (Art. 1095 CC) If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made. The warranty of the solvency of the debtor can only be enforced during the five years following the partition. Co-heirs do not warrant bad debts, if so known to, and accepted by the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (Art. 1095 CC)
D. Right of Redemption in Partition

Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor (Art. 1088, CC) Strangers those who are not heirs on the succession.
II. EFFECTS OF PARTITION A. Effect

A PARTITION LEGALLY MADE CONFERS UPON EACH HEIR THE EXCLUSIVE OWNERSHIP OF THE PROPERTY ADJUDICATED TO HIM (ART 1091, CC)
C. End of Warranty
The obligation of warranty among coheirs shall cease in the ff cases: The testator himself has made the partition Unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired. When its has been so expressly stipulated in the agreement of partition, Unless there has been bad faith When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (Art. 1096, CC)
B. Warranty
After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated CC) (Art. 1092
The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs; But if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve (Art. 1093 CC) An action to enforce the warranty among the co-heirs must be brought
III. NULLIFICATION OF PARTITION

(Asked in 90)
A. Causes for Annulment

A partition may annulled for the contracts.
Rescission
be rescinded same causes
or
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or as
A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less by at least one-fourth, than the share to
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which he is entitled, considering the value of the things at the time they were adjudicated (Art. 1098, CC) This article applies only to cases of partition among-coheirs Lesion is the injury suffered in consequence of inequality of situation by one party who does not receive the full equivalent for what she gives in a sale or any commutative contract The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may be reasonably be presumed, that the intention of the testator was otherwise. (Art. 1099, CC) The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (Art. 1100, CC) The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition. Indemnity may be made: By payment in cash or By the delivery of a thing of the same kind and quality as that awarded to the plaintiff. If a new partition is made, it shall affect neither those who have not been prejudiced nor those who have not received more than their just share (Art. 1101, CC) An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash (Art. 1102, CC) The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (Art. 1103, CC) A partition made with preterition of any of the compulsory heirs shall not be
rescinded, unless it be proved that there was bad faith or fraud on the part of the other person interested; but the latter shall be proportionately obliged to pay the person omitted the share which belongs to him. (Art. 1104, CC) A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (Art. 1105 CC)
B. Difference Rescission

of
Nullity
from
Nullity is not the same as Rescission. Nullity - the act is supposed to never have existed Rescission - the act is valid at the origin though it afterwards became ineffective
IV.
IMPORTANT PARTITION
PERIODS
IN
1 month or less before making a will 20 years 5 years from delivery to the State 1 month 5 years from the time disqualified person took possession 30 days from issuance of order of distribution 1 month form written notice of sale 10 years
Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will Maximum period testator can prohibit alienation of dispositions To claim property escheated to the State To report knowledge of violent death of decedent lest he be considered unworthy Action for declaration of incapacity & for recovery of the inheritance, devise or legacy Must signify acceptance/repudiation otherwise, deemed accepted Right to repurchase hereditary rights sold to a stranger by a co-heir To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues To enforce warranty of solvency of debtor of the estate at the time partition is made Action for rescission of partition on account of lesion
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5 years partition 4 years partition
from
form
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Chapter VI. Application of the Important Concepts
Chapter VI. Application of the Important Concepts Through Sample Computational Problems
(Based on the lectures of Prof. Danilo L. Concepcion)
This 6th Chapter contains sample computational problems and solutions applying the important concepts and principles in Wills and Succession.
Goofys original share: Donalds original share: Minnies original share:
1/3 of 12,000 1/4 of 12,000 1/4 of 12,000
4,000 3,000 3,000 TOTAL: 10,000 DEFICIENCY: 2,000
I. APPLICATION OF PRINCIPLES ON INSTITUTION OF HEIRS A. Excess Institution

Mickey died testate, leaving a total estate of P12,000. According to his Will, Goofy gets , Donald gets 1/3 and Minnie gets of the property. How will you compute the proportional reduction from each heirs shares in order not to exceed the total estate of Mickey (assuming no legitime is impaired)?
Goofys original share: Donalds original share: Minnies original share: of 12,000 1/3 of 12,000 of 12,000 6,000 4,000 3,000 TOTAL: 13,000 EXCESS: 1,000
Goofys increase = 4,000/10,000 x 2,000 = 800 Donalds increase = 3,000/10,000 x 2,000 = 600 Minnies increase = 3,000/10,000 x 2,000 = 600 Total Deficiency = P2000 P10,000 + P2,000 = P12,000 (the total estate) Goofy gets P4000 + 800 = P 4,800 Donald gets P3,000 + 600 = P3, 600 Minnie gets P3,000 + 600 = P 3, 600
II. LEGITIMES A. Legitimes: Concurrence of Legitimate and Illegitimate Children

Homer died of heart attack. His wife, Marge, predeceased him. He had only 1 legitimate child, Bart, and 4 illegitimate children, Lisa, Maggie, Wolverine and Cyclops. Homer has a total estate of P120,000. How much is the legitime of each heir? The legitimate child should get of the estate while the illegitimate children get of what the legitimate child gets. Bart - P60,000 Lisa - P30,000 Maggie - P30,000 Wolverine - P30,000 Cyclops - P30,000 But this would amount to a total of P180,000. Thus, there must be a reduction of the shares of the illegitimate children. Reduction = excess / number of illegitimate children Reduction = (180,000 120,000) / 4 = 15,000 P30,000 (share) 15,000 (reduction) = P15,000
Goofys reduction = 6,000/13,000 x 1,000 = 461.53846 Donalds reduction = 4,000/13,000 x 1,000 = 307.69231 Minnies reduction = 3,000/13,000 x 1,000 = 230.76923 Total Deduction = P1000 P13,000 P1,000 = P12,000 (the total estate) Goofy gets P6000 P461.53846 Donald gets P4,000 P307.69231 Minnie gets P3,000 P230.76923
B. Deficiency in the Institution

Mickey died testate, leaving a total estate of P12,000. According to his Will, Goofy gets 1/3, Donald gets and Minnie gets of the property. How will you compute the proportional increase in each heirs shares in order not to exceed the total estate of Mickey (assuming no legitimes were impaired)?
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Final Answer: Bart = P60,000 Lisa = P15,000 Maggie = P15,000 Wolverine = P15,000 Cyclops = P15,000 TOTAL = P120,000
P30,000 (share) 15,000 (reduction) =P15,000 Final Answer: Mushroom = p60,000 Kupa = p30,000 Mario = p15,000 Luigi = p15,000
B. Legitimes: Concurrence of Spouse and Legitimate Children

Anderson Silva died, leaving a total estate of P120,000. He was survived by his wife, Machida, and his three children: Chuck, Quinton, and George. How much legitime is allotted by law to each heir? Legitimate Children get The is divided into as many legitimate children. Wife gets an amount equal to the share of a legitimate child. Final Answer: Chuck = P20,000 Quinton = P20,000 George = P20,000 Machida = P20,000 Free Portion = P40,000
III. INTESTATE SUCCESSION A. Intestate Succession

Hulk Hogan died intestate, with a total estate of P70,000. His wife, Sable, his legitimate son, Ultimate Warrior, and his two illegitimate children, Stone Cold and Undertaker, survived him. How will his estate be divided among these heirs? Applying the law in intestate succession, each heirs will receive the ff: Ultimate Warrior P35,000 Stone Cold P17,500 Undertaker P17,500 Sable P35,000 Since the total shares will exceed P70,000, reduction is in order. The share of those who will receive more than their legitimes must be reduced. The spouses share should be reduced first to the amount of her legitime (P17,500) (note: the share of the others are equal to their legitimes) Further reductions shall be made since the amount will still exceed the net estate. Following the law of legitimes, namely that the legitime of the legitimate child and the surviving spouse shall be preferred over the illegitimate childrens shares, the reduction will be suffered by the illegitimate children. Final Answer: Ultimate Warrior P35,000 Stone Cold P8750 Undertaker P8750 Sable P17,500
C. Legitimes: Concurrence of Spouse, Legitimate and Illegitimate Children

Princess toadstool died, survived by her husband, kupa, her legitimate child, mushroom, and by her two illegitimate children, mario and luigi. She has a total estate of p120,000. How much legitime is allotted by law to each heir? The legitimate child gets . The wife gets of the share of the legitimate child (because there is only one legitimate child) The illegitimate children will each get of the share of the legitimate child. Mushroom p60,000 Kupa p30,000 Mario p30,000 Luigi p30,000 But this will yield a total of p150,000. Thus the shares of the illegitimate children must be reduced. Reduction = excess / number of illegitimate children Reduction = (150,000 - 120,000)/2 =15,000
IV. ACCRETION
SUCCESSION
Goku died testate, leaving an estate of P720. In his will, he instituted his sons to his entire estate. His sons are Vegeta, Napa, Raditz and Freeza. Vegeta, who had two children (Trunks and Bulma), predeceased Goku. Napa, who hated his fathers guts, repudiated his share in the will.
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Raditz, who likewise has two children (Tenshenhan and Chowzu), was found to be incapacitated to inherit from his father. Lastly, Freeza, the youngest and most beloved son of Goku, has a son, Magneato. Determine Legitime and Free Portion:
Heir Vegeta (predeceased) Napa (repudiated) Raditz (incapacitated) Freeza Will 180 = legitime:120 free: 60 180 (automatically becomes free portion) 180 = legitime:120 free: 60 180 = legitime:120 free: 60
Total Estate = Gross Estate Liabilities + Donations Inter Vivos Total Estate = 90,000 0 + 150,000 = P240,000 Determine the Legitimes: Legitimate Children = of Total Estate Therefore: Spiderman = P60,000 Robinhood = P60,000 Surviving Spouse = amount Legitimate Child Therefore: Sandy = P60,000 Determine their Intestate Shares
Heir Spiderman Robinhood Sandy Final Answer 80, 000 (60,000 = legitime) 80,000 (60,000 = legitime) 80,000 (60,000 = legitime)
equal
to
Determine amount received by heirs through representation for the legitimes Heir Representation for Legitime Vegeta (predeceased) Legitime = 120 Trunks: 60 Bulma: 60 Napa (repudiated) Raditz Legitime = 120 (incapacitated) Tenshenhan: 60 Chowzu: 60 Freeza Determine if there is accretion: Heir Accretion Vegeta (predeceased) - 60 Napa (repudiated) -180 Raditz -60 (incapacitated) Freeza + (60 + 60 + 180) or + 300 COMPUTE:
Heir Vegeta (predeceased) Napa (repudiated) Raditz (incapacitated) Freeza Final Answer Trunks: 60 Bulma: 60 0 Tenshenhan: 60 Chowzu: 60 480
Determine Advances
Heir Spiderman Robinhood Sandy Advance 50,000 100,000
Compute:
Heir Spiderman Robinhood Sandy Computation Legitime: 60,000 50,000 = 10,000 Free Portion = 20,000 Legitime: 60,000 60,000 = 0 Free Portion: 20,000 20,000 = 0 (20,000 still unaccounted for)
Since Robinhoods share has been exhausted but there is still a deficiency of 20,000, this 20,000 will be deducted from the free portions of Spiderman and Sandy Pro Rata.
Heir Spiderman Robinhood Sandy Computation Legitime Left: 10,000 Free Portion Left = 20,000 10,000 = 10,000 0 Legitime: 60,000 Free Portion: 20,000 10,000 = 10,000
SUCCESSION
V. COLLATION
Sponge Bob died intestate on September 17, 1985. He left an estate of P90,000. He was survived by his wife, Sandy, and his two children Spiderman and Robinhood. During Mr. Bobs lifetime, on January 1, 1980, he donated P50,000 to Spiderman. In 1982, he made a donation to Robinhood worth P100,000. Compute for the shares of each heir.
Therefore
Heir Spiderman Robinhood Sandy Final Answer 20,000 0 70,000
- end of Succession -
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Table of Contents

CHAPTER I. JURISDICTION I. Bases of Jurisdiction II. Exercise of Jurisdiction III. Ways of Dealing with Jurisdiction in a Conflicts Problem CHAPTER II. CHOICE OF LAW I. Approaches to Choice of Law A. Traditional Approaches B. Modern Approaches CHAPTER III. CHARACTERIZATION I. Types of Characterization II. Depecage CHAPTER IV. RENVOI I. Definition II. Ways of Dealing with Renvoi CHAPTER V. NOTICE AND PROOF OF FOREIGN LAW I. Proof of Foreign Law II. Exceptions to the Application of Foreign Law CHOICE OF LAW PROBLEMS (Chapters VI to XII) CHAPTER VI: NATIONALITY I. Nationality A. Determination of Nationality B. Procedure for Naturalization C. Loss of Philippine Citizenship D. Problems in applying the Nationality Principle CHAPTER VII: DOMICILE I. Domicile II. Comparative Merits and Demerits of Domicile and Nationality CHAPTER VIII: PRINCIPLES ON PERSONAL STATUS AND CAPACITY I. Definition II. Beginning and End of Personality III. Absence IV. Name V. Age of Majority VI. Capacity CHAPTER IX. FAMILY RELATIONS I. Marriage II. Divorce and Separation III. Annulment and Declaration of Nullity IV. Parental Relations V. Adoption 249 249 249 250 251 251 251 251 253 253 253 254 254 254 255 255 255 256272 256 256 256 257 258 258 260 260 261 262 262 262 262 263 263 263 264 264 265 266 266 266 CHAPTER X. PROPERTY I. Controlling Law II. Capacity to Transfer or Acquire Property III. Extrinsic and Intrinsic Validity IV. Exceptions to Lex Situs Rule V. Situs of Certain Properties VI. Patents, Trademarks, Trade Name and Copyright CHAPTER XI. CONTRACTS I. Contracts Involving a Foreign Element II. Extrinsic Validity of Contracts III. Intrinsic Validity IV. Capacity to Enter Contracts V. Choice of Law Issues in Conflicts Contracts Cases VI. Limitations to Choice of Law VII. Applicable Law in the Absence of Effective Choice CHAPTER XII. SUCCESSION I. Extrinsic Validity II. Intrinsic Validity III. Interpretation of Wills IV. Revocation V. Probate VI. Administration of Estates VII. Trusts CHAPTER XIII. TORTS AND CRIMES I. Torts A. Traditional Approach B. Modern Approach C. Foreign Tort Claims II. Crimes CHAPTER XIV. CORPORATIONS AND OTHER JURIDICAL ENTITIES I. Personal Law of Corporations II. Exception to the Rule of Incorporation Test III. Domicile/Residence of Corporations IV. Jurisdiction of Foreign Corporations V. Right of Foreign Corporations to Bring Suit CHAPTER XV. FOREIGN JUDGMENTS I. Recognition vs. Enforcement II. Bases of Recognition and Enforcement III. Policies Underlying IV. Requisites V. Procedure for Enforcement VI. Effects of Foreign Judgments 268 268 268 268 268 268 269 270 270 270 270 270 270 271 271 272 272 272 272 272 272 272 272 273 273 273 273 273 273 274 274 274 274 274 274 275 275 275 275 275 276 276
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Conflict of Laws
Private International Law

The outline and materials for this reviewer were substantially taken from the book Conflict of Laws: Cases, Materials and Comments by Jorge R. Coquia and Elizabeth Aguiling-Pangalangan. 2000 ed. Central Professional Books, Inc. Quezon City. FACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE Prof. Elizabeth A. Pangalangan
FACULTY EDITOR

SUBJECT EDITORS
LECTURES Edel Cruz

HEAD

-------Kae Guerrero
PRIVATE INTERNATIONAL LAW Deng de Guzman Carol Deang

LEAD WRITERS
-------Leo Zulueta
Rania Joya
CONFLICT OF LAWS
PRIVATE INTERNATIONAL LAW: It is a branch or part of Philippine Law which regulates the application of foreign law within Philippine jurisdiction in the resolution of cases involving foreign elements. more commonly known in other jurisdictions as conflict of laws General Nature of Private International Law It is a method or technique. It is not a system of substantive rules. It has no material content in terms of rights and duties, and hence it does not provide immediate solution to the issue at hand. It only points out the legal system which rules are to be applied to a particular dispute. It is a modus vivendi among the private law systems of the world by which they may apply one anothers laws. The principles of conflict of laws incorporated in municipal laws of many states are based on comity of nations. COMITY: is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation having due regard both to international duty and convenience, and to the rights of its own citizens
or of other persons who are under the protection of its laws (Hilton v. Guyot, 1895) FOREIGN ELEMENT may refer to parties, property, events, or transactions. PRIVATE INTERNATIONAL LAW vs. PUBLIC INTERNATIONAL LAW
Basis Parties
PRIL
Individuals corporations
or
PIL Primarily states and international organizations Exception: Human rights cases - National conflict rules International conflict rules
Sources
Remedies
- treaty - custom generally recognized principles of law - judicial decisions - teachings of the most highly qualified publicists diplomatic protest negotiation, conciliation, arbitration adjudication before international tribunal use of force war
resort to forum court or administra tive tribunals
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Conflict of Laws
PRIL v. Municipal law: presence of foreign element SOURCES 1. Codes and statutes 2. Treaties and international conventions 3. Treatises, commentaries, and studies of learned societies 4. Judicial decisions
Examples of Conflict of Law Rules in the Philippines 1. Art. 15 CC: Lex Patriae 2. Art. 1251 (par. 3) CC: Lex Domicili 3. Art. 16 CC: Lex Situs/ Lex Rei Sitae 4. Art. 17 (par. 1) CC: Lex Loci Contractus 5. Art. 71 CC: Lex Loci Celebrationis 6. Art. 26 (par. 1) FC: Lex Loci Celebrationis 7. Art. 1306 CC: Lex Loci Intentionis Civil Code: Arts. 15,16,17,71,75,124,815-817,818819,1039,1753,1306 Family Code: Arts. 26,10,7.5,26,80,184,185,187 General Process in the Resolution of Conflict Problem 1. Jurisdiction Where can or should litigation be initiated? 2. Characterization of Cause of Action - What legal category does the case fall in to? 3. Choice of law Which law will the court apply? 4. Recognition and enforcement of judgments Where can the resulting judgment be enforced?
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Chapter I: Jurisdiction
This 1st Chapter discusses the basic principles surrounding the issues of jurisdiction in Private International Law. There are THREE MAJOR LESSONS in this Chapter. I. Bases of Jurisdiction II. Exercise of Jurisdiction III. Ways of Dealing with Jurisdiction in a Conflicts Problem
moreover, the second case was a mere offshoot of the first case.
B. Jurisdiction over the PROPERTY

1. Acquisition i. seizure of property ii. institution of legal proceedings wherein the courts power over the property is recognized and made effective 2. Basis of jurisdiction: the presence of the property within the territorial jurisdiction of the forum
JURISDICTION the power of a court to TRY a case, RENDER judgment, and EXECUTE it in accordance with law
I. BASES OF JURISDICTION A. Jurisdiction over the PERSON

1. Acquisition i. Over plaintiff: filing of suit ii. Over defendant: 1. entry of appearance, or 2. service of legal process/summons In rem proceeding: service of summons by publication Asiavest Limited v. CA, 1998: Jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court provided that the court acquires jurisdiction over the res. Nonetheless summons must be served upon the defendant not for the purpose of vesting the court with jurisdiction but merely for satisfying the due process requirements.
C. Jurisdiction over the SUBJECT MATTER

1. Acquisition i. competence of the court to hear, try and decide the case is conferred by law ii. necessary that said power be properly invoked by the filing of petition iii. cannot be conferred by mere consent of parties
II. EXERCISE OF JURISDICTION

TRADITIONAL BASIS: States PHYSICAL POWER over persons and property within its territory This explains the distinctions made between actions in personam1 and actions in rem or quasi in rem2, dating back to the case of Pennoyer v. Neff (1878). In the US: The conceptual basis for the exercise of jurisdiction has shifted from territorial power to considerations of MINIMUM CONTACTS and FUNDAMENTAL FAIRNESS. o International Shoe Co. v. Washington (1945): Due process only requires that the defendant who is not present within the territory of the forum have minimum contacts with it such that the maintenance of the suit does not offend traditional
In personam proceeding: General Rule: Personal service of summons or substituted service, PROVIDED, the defendant is within the territorial jurisdiction of the court Exception: In Gemperle v. Schenker wherein a non-resident was served with summons through his wife, who was a resident of the Philippines and who was his representative and attorney-in-fact in a prior civil case filed by him;
Actions in personam are directed against specific persons and seek personal judgments. 2 Actions in rem or quasi in rem are directed against the thing or property or status of a person and seek judgments with respect thereto as against the whole world.
1
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notions of fair play and substantial justice. Mullane v. Central Hanover Bank & Trust Co. (1950): The standard for adequate notice is WON it is reasonably certain to inform those affected or, where conditions do not reasonably permit such notice, WON the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes. Shaffer v. Heitner (1977): The minimum contacts and fundamental fairness test should be satisfied regardless of whether the proceedings are in rem, quasi in rem, or in personam, and the minimum contacts must exist among the forum, defendant, and the cause of action. Long-arm statutes: statutes that allow the forum state to exercise jurisdiction over a non-resident defendant, provided that the prospective defendant has sufficient minimum contacts with the forum state.
properly considered a matter of defense. (Bank of America NT&SA v. CA, 2003) Reasons for applying forum non conveniens: 1. 2. 3. To prevent abuse of courts processes Burdensome on the court or taxpayers Local machinery is inadequate to effectuate a right (no way for the court to secure evidence and attendance of witnesses) Avoid global forum shopping
4.
B. Assume Jurisdiction
1. Proceed to Characterization (discussed under CHARACTERIZATION) 2. Apply either: Forum Law or Foreign Law (will be discussed more on the CHOICE OF LAW) When the court assumes jurisdiction, it may apply forum law or foreign law. Forum law should be applied whenever there is good reason to do so because forum law is the basic law.
III.
WAYS OF DEALING WITH JURISDICTION IN A CONFLICTS PROBLEM
Factors which justify the application of forum law 1. A specific law of the forum decrees that internal law should apply. 2. The proper foreign law was not properly pleaded and proved. 3. The case falls under any of the exceptions to the application of foreign law: a. The foreign law is contrary to an IMPORTANT PUBLIC POLICY of the forum b. The foreign law is PROCEDURAL in nature c. The foreign law is PENAL in nature d. Issues related to PROPERTY e. The issue involved in the enforcement of foreign claim is FISCAL or ADMINISTRATIVE f. The foreign law is contrary to GOOD MORALS (contra bonus mores) g. The application of foreign law will work UNDENIABLE INJUSTICE to citizens of the forum h. The application of foreign law might endanger the VITAL INTERESTS of the state
A. Dismiss the Case

1. For Lack of jurisdiction 2. On the ground of CONVENIENS FORUM NON
Doctrine of Forum Non Conveniens (Asked in 94, 04 BAR EXAMINATIONS) This literally inconvenient. means the forum is
This doctrine requires the court to dismiss the case on the ground that the controversy may be suitably tried elsewhere. o The doctrine of forum non conveniens should NOT be used as a ground for a motion to dismiss because Sec. 1, Rule 16 of the Rules of Court does not include said doctrine as a ground. The propriety of dismissing a case based on this principle of forum non conveniens requires a factual determination; hence it is more
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Chapter II: Choice of Law
Chapter II. Choice of Law

This 2nd Chapter provides for the mechanism of the proper choice of law in Private International Law. There is ONE MAJOR LESSON and SUBTOPICS in this Chapter. I. Approaches to Choice of Law A. Traditional Approaches B. Modern Approaches TWO
CHOICE OF LAW The determination by the court of whether to apply forum law or foreign law The factors that justify exercise of judicial jurisdiction may be the same factors used to determine choice of law. BUT, jurisdiction and choice of law are two different concepts. A court may exercise jurisdiction but apply foreign law OR not exercise jurisdiction but apply the forum law.
negligent conduct of co-employees in Alabama. Mississippi bars recovery. Alabama makes ER liable. Carroll files suit in Alabama. There can be no recovery in this case. Although it is claimed that the negligent conduct was done in Alabama, the law of Mississippi should be applied which bars recovery since the injury was sustained in the place and such creates the cause of action. It is the law of the place of the LAST ACT necessary to complete the cause of action. (Alabama Great Southern Railroad v. Carroll, 1892) Criticism: Failure to resolve conflicts cases with considerations of policy and fairness.
2. Cooks Local Law Theory Treats conflicts cases as a purely domestic case that does not involve a foreign element Criticism: narrow-minded by favoring an exaggerated local policy
I. APPROACHES TO CHOICE OF LAW

Ideally, object of all choice of law theories must be JUSTICE and PREDICTABILITY
B.
Modern
Approaches:
reaching appropriate particular cases
relate results
to in
A. Traditional Approaches: emphasize

simplicity, convenience and uniformity 1. Vested Rights Theory o An act done in a foreign jurisdiction gives rise to the existence of a right if the laws of that state provide so. This right vests in the plaintiff and he carries it with him to be enforced in any forum he chooses to bring suit o The applicable law is the law of the place of occurrence of the LAST ACT necessary to complete the cause of action. o If the place of the last act creates no legal right, although forum court creates such right if act done within its territory, it will not enforce that right. Illustration: Carroll is an employee of Alabama Corp. Both EE and ER are residents of Alabama. Carroll was injured in the course of work in Mississippi due to
1. Place of the Most Significant Relationship Factual contacts evaluated depending on their relative importance and relevance to the issue at hand Identifies a plurality of factors that must be considered in the light of choice of law Among these factors are: needs of the interstate and international system, relevant policies of the concerned and interested states, justified expectations of the parties, basic policies underlying a particular field of law, certainty, predictability and uniformity of result and ease in the determination of law to be applied Criticism: No standard to evaluate significance of each contact In applying the grouping of contacts theory, courts, instead of regarding as conclusive the intention of the parties or the place of the making or
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Chapter II: Choice of Law
performance, lay emphasis rather on the law of the place which has the most significant contacts with the matter in dispute. (Auten vs. Auten, 1954) 2. Interest Analysis Looks at the policy behind the laws of the involved states and the interest each state has in applying its own law. Factual contacts alone do not determine outcome of the case UNLESS they reflect a state policy which would be advanced by the application of the substantive state law. Court determines whether the case involves APPARENT, TRUE or FALSE conflict. i. True Conflict If there is an apparent conflict, the court takes a second look on the policies and interests of each state. If both have real interests in applying their law, then apparent conflict is a true conflict. ii. False Conflict If only one state has an actual interest in having the law applied and the failure to apply the other state law will not impair its policy Criticism: Not all state legislatures publish reports that explain background and purpose of laws, thus courts are left to speculate.
3. Comparative Impairment Court weighs conflicting interests and apply the law of the state whose interest would be more impaired it its laws were not followed 4. Trautmans Functional Analysis Looks at the policies and considers their relative weight (policy-weighing) Considers whether the law of a state reflects an emerging or regressing policy 5. Leflars Choice Influencing Considerations (BOPIS) a. Predictability of results; b. Maintenance of interstate and international order; c. Simplification of the judicial task; d. Application of the better rule of law; e. Advancement of the forums governmental interests
Illustration: B and J, NY residents, met a car accident in Ontario thru Js fault. B sued J in NY for damages. Ontario bars recovery under a guest statute. NY does not have a similar rule. B should be allowed to recover. NY had a greater and more direct interest then Ontario. NYs policy is to afford compensation to a guest tortfeasor host while Ontarios policy is to prevent fraudulent collusion to the prejudice of Ontario defendants insurance companies. Ontario had no interest in denying a remedy to a NY guest against a NY host. (Babcock vs. Johnson, 1963)
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Chapter III: Characterization
Chapter III. Characterization

This 3rd Chapter deals with the Problem of Characterization in Private International Law. There are TWO MAJOR TOPICS in this Chapter. I. Types of Characterization II. Depecage
Substantive: when limitation is directed to a newly created liability so specifically as to warrant saying that it qualified the right. (SPECIFICITY TEST) BORROWING STATUTE: (Asked in 94 BAR EXAMINATIONS) directs the state of the forum to apply the foreign statute of limitations to the pending claims based on the applicable foreign law Characterization of a statute into procedural or substantive becomes irrelevant when country of forum has Borrowing Statute Many states including the Philippines have passed borrowing statutes to eliminate forumshopping Section 48 of Code of Civil Procedure: If the laws of the state or country where the cause of action arose, the action is barred, it is also barred in the Philippine Islands.
CHARACTERIZATION (Asked in 94) The process by which a court assigns a disputed question to an area of substantive law.
I. TYPES OF CHARACTERIZATION A. Subject-Matter Characterization

Classification of a factual situation into a legal category
Illustration: Principal authorizes a person to act as his agent in another country. Agent commits a negligent act. The law that will determine the principals liability depends on the courts characterization of the case as: 1. Contractual: Law of the place where the contract of agency was entered into; or 2. Tortious: Law of the place where tortuous conduct or injury occurred
II. DEPECAGE
Literally means to dissect A factual situation or case may include different aspects involving a foreign element which may be governed by different legal categories. Depecage is the process of cutting up the case issue by issue and applying the pertinent laws to the different aspects Merits of Depecage: Allows other relevant interests of the parties to arrive at a functionally sound result without rejecting the methodology of the traditional approach.
B. Substance-Procedure Dichotomy
Classification of a factual situation into either procedural or substantive
1. If issue substantive: court MAY apply foreign law or forum law 2. If issue procedural: court will apply forum law REASON: It would be too burdensome and inconvenient on the part of the forum to apply procedural laws of another country 3. Two issues whose classification procedural or substantive) is debatable: (as
i. Statute of Frauds Substantive: if it forbids the creation of obligation (e.g., void contracts) Procedural: if it forbids the enforcement of the obligation(e.g., unenforce-able contracts, Art. 1403 of Civil Code) ii. Statutes of Limitations Procedural: traditionally classified as procedural because they only bar the legal remedy without impairing the substantive right involved.
Illustration: A man dies intestate domiciled in State A and with movable properties in State B. The conflict rules of State A refer to laws of the domicile to determine how the mans estate should be divided. The intestate law of State B gives the widow a definite share in the estate of the deceased. But the determination of the WON the woman who claims a share in the estate is a wife is referred to family law, not the laws of succession. Application of Depecage in the case: Law governing movable properties and successional rights of spouse: embody substance of claim Validity of marriage: affects solution because it answers a preliminary or incidental question.
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Chapter IV: Renvoi
Chapter IV. Renvoi

This 4th Chapter discusses the doctrine of Renvoi as a vital tool in resolving Choice of Law problems. There are TWO MAJOR Chapter: LESSONS in this
II. WAYS OF DEALING WITH RENVOI A. Reject the Renvoi

Conflict Rules of the forum court refer the case only to the INTERNAL LAW of another state. Internal Law of the foreign state is applied by the forum court. Has the same effect as Double Renvoi 1. Attains harmony of decisions 2. But this works only if the other state also adopts double renvoi. 3. Otherwise, there would be no end to the case (revolving door, game of lawn tennis, circulus inextrabilis).
I. Definition II. Ways of Dealing with Renvoi
RENVOI (Asked in 97 BAR EXAMINATIONS)
I. DEFINITION
A procedure whereby a jural matter presented is referred by the conflict of laws rules of the forum to a foreign state, the conflict of laws rule of which, in turn, refers the matter to the law of the forum or third state. Does not apply to a false conflict problem Remission: reference is made back to the law of the forum Transmission: reference to a third state
B. Accept the Renvoi

Conflict Rules of the forum court refer the case to the whole law of another stateto both the INTERNAL LAW and CONFLICT RULES of another state. This includes the choice-of-law rules applicable in multi-state cases. Internal Law of the forum court or a third state is applied. Has the same effect as applying Single Renvoi
A. Usefulness
Used to avoid unjust results
B. Criticisms
1. 2. There will be an endless chain of reference. Courts may be unnecessarily burdened with the task of identifying the choice of law rules of another state.
Illustration:
STATE A Internal Law Conflict Laws STATE B Internal Law Conflict Laws
Aznar vs. Garcia, (1963): Art. 16 of the Philippine Civil Code provide that the national of the decedent governs the validity of his testamentary dispositions. Such national law means the conflict of laws of the California Code, which authorizes the reference or return of the question to the law of the testators domicile. The conflict of laws rule in California refers back the case, when a decedent is not domiciled in California, to the law of his domicile (the Philippines in CAB). The Philippine court must apply its own law as directed in the conflict of laws rule of the state of the decedent.
C. Desistance or Mutual Disclaimer The same result as the acceptance of renvoi but the process used by the forum court is to desist applying the foreign law. Internal Law of the forum court or a third state is applied. D. Foreign Court Theory The forum court would assume the same position the foreign court would take were it litigated in the foreign state.
There is Renvoi through Remission.
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Chapter V: Notice and Proof of Foreign Law
Chapter V. Notice and Proof of Foreign Law

This 5th Chapter deals with requirement before foreign law may be applied by the forum. There are TWO MAJOR TOPICS in this Chapter: I. Proof of Foreign Law II. Exceptions to the Application of Foreign Law
Factors in deciding whether to apply domestic law or decide against the party who has the burden of proving the contents of foreign law: 1. degree of PUBLIC INTEREST involved 2. ACCESSIBILITY of the foreign law materials to the parties 3. probability that the plaintiff is merely FORUM-SHOPPING 4. SIMILARITIES between the forum law and foreign law
I. PROOF OF FOREIGN LAW

General Rule: Foreign law must be pleaded and proved as a fact The party whose cause of action or defense depended on the foreign law has the burden of proving the foreign law. Exception: Court may take judicial notice of foreign laws which are already within its ACTUAL KNOWLEDGE such as when: they are well and generally known OR they have been actually ruled upon in other cases before it and none of the parties concerned claim otherwise (PCIB v. Escolin, 1974) Foreign law proved by: 1. an OFFICIAL PUBLICATION of the law; OR 2. a COPY of the law attested by the officer having the legal custody of the record, or by his deputy. If such record is not kept in the Philippines, it must be accompanied with a certificate that such officer has the custody 3 Alternatives in case of failure to plead and prove foreign law 1. DISMISS the case for failure to establish a cause of action 2. Apply FORUM LAW, conclude that parties acquiesce to its application 3. PROCESSUAL PRESUMPTION (Asked in 85, 86, 87, 88,89, 90, 91, 92, 93 and 94) Forum presumes that the foreign law is the same as the forum law.
II. EXCEPTIONS TO THE APPLICATION OF FOREIGN LAW

(Asked in 91) 1. Local law expressly so provides 2. Failure to plead and prove the foreign law or judgment 3. Exceptions to the rule of comity: (4P-FAG-UV) a. The foreign law is contrary to an IMPORTANT PUBLIC POLICY of the forum b. The foreign law is PROCEDURAL in nature c. The foreign law is PENAL in nature d. Issues related to PROPERTY e. The issue involved in the enforcement of foreign claim is FISCAL or ADMINISTRATIVE f. The foreign law is contrary to GOOD MORALS (contra bonus mores) g. The application of foreign law will work UNDENIABLE INJUSTICE to citizens of the forum h. The application of foreign law might endanger the VITAL INTERESTS of the state PERSONAL LAW An individuals nationality or domicile serves as a PERMANENT CONNECTION between the individual and a state. Ones personal law FOLLOWS HIM WHEREVER HE IS, therefore: It allows the courts to exercise jurisdiction; or Determine the governing choice-oflaw rule on a specific situation or transaction involving him. Transactions governed include: Marriage Divorce Legitimacy Capacity to contract
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Choice of Law Problems - Chapter VI: Nationality

CHOICE OF LAW PROBLEMS

Chapter VI: Nationality
This 6th Chapter deals with the application of the Nationality Principle as a Choice of Law. There is only ONE MAJOR TOPIC and FOUR SUBTOPICS in this Chapter: I. Nationality A. Determination of Nationality B. Procedure for Naturalization C. Loss of Philippine Citizenship D. Problems in applying the Nationality Principle
Art. 1. It is for each State to determine who are its nationals. This law shall be recognized by other States insofar as it is consistent with international convention, international customs, and the principles of law generally recognized with regard to nationality. Art. 2. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State.
The Constitution enumerates who are FILIPINO CITIZENS:
Most civil law countries such as the Philippines follow the NATIONAL LAW THEORY: (Asked in 98, 04, BAR EXAMINATIONS) It is the nationality or citizenship of the individual, which regulates the following: Civil status Capacity Condition Family rights and duties Laws on Succession Capacity to succeed According to the Supreme Court, it is a conflict of laws theory by virtue of which jurisdiction over the particular subject affecting a person is determined by the latters nationality. (Ellis vs. Republic, 1963) In the Philippines, the nationality principle is expressed in Art. 15 of the Civil Code as follows:
Sec.1, Art IV. The following are citizens of the Philippines: (1) Those who are citizens of the Philippines at the time of the adoption of this Constitution; (2) Those whose fathers or mothers are citizens of the Philippines; (3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and (4) Those who are naturalized in accordance with law.
Art. 15. Laws relating to family rights and duties, or to status, condition and capacity of persons are binding upon citizens of the Philippines even though living abroad.
1. Natural-Born Citizens DEFINITION: Those who are citizens of the Philippines without having to perform any act to acquire or perfect citizenship. Two principles: JUS SOLI looks to the PLACE of BIRTH to determine ones nationality JUS SANGUINIS means rule of DESCENT OR BLOOD - Principle followed in the Philippines 2. Citizens by Naturalization NATURALIZATION: confers to an alien a nationality a nationality after birth by any means provided by law. In the Philippines, this is done by judicial method under CA No. 73 as amended by RA 530.
(Asked in 91, 95, 98, 01, 03, 04, 05-08 BAR EXAMINATIONS)
A. Determination of Nationality
Each state has the prerogative and authority to determine by its own municipal law who are its nationals or citizens. The Hague Convention on Conflict of National Laws states this principle in the following provisions:
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B. Procedure for Naturalization

(N.B. This is a proper subject matter of Political Law but is important to know as background if the Conflicts question asks you to decide the Choice of Law involving nationality. This was asked in the bar exams as part of PRIL.) Qualifications for Naturalization Must not be less than 21 years old on the date of the hearing of the petitions Resided in the Philippines for a continuous period of not less than 10 years EXCEPTION: may be reduced to 5 years in the ff. cases: Held office under the Government or any of its subdivisions Established a new industry or introduced a useful invention Married to a Filipino woman Engaged as a teacher in a public/private school, not exclusive for a particular nationality, for 2 years Born in the Philippines Good moral character, believe in the Constitution, and conducted himself in a proper and irreproachable manner during the entire period of his residence Own real estate in the Phils. worth not less than P5,000 or have a lucrative trade, profession or lawful occupation Must be able speak and write English or Spanish and any one of the principal Philippine languages Enrolled his minor children in any of the public or private schools recognized and teaches Phil. history, government and civics Disqualifications for Naturalization Convicted of a crime involving moral turpitude That the applicants state of origin does not grant reciprocal rights to Filipino citizens at the time of the hearing of his application
1. Procedure for Naturalization i. DECLARATION OF INTENT 1 year prior to the filing of the petition, unless the applicant is exempted EXEMPTIONS: Persons born in the Philippines and who have received their primary and secondary education in schools recognized here and are not limited to any nationality Resided continuously in the Philippines for 30 years or more Widow and minor children of an alien who declared his intention to become a citizen and dies
iii. PUBLICATION in the Official Gazette or newspaper of general circulation iv. HEARING v. If the petition is approved, two years after there will be a REHEARING vi. Taking of ALLEGIANCE the OATH of
ii. PETITION FOR NATURALIZATION
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2. Effects of Naturalization on Wife and Children (sec. 15,CA 473)

PERSON WOMAN, Married to a citizen; and who might herself be lawfully naturalized MINOR CHILDREN of those naturalized, born in the Philippines FOREIGN-BORN MINOR CHILD, if in the Philippines at the time of the naturalization FOREIGN-BORN MINOR CHILD, if NOT in the Philippines at the time of the naturalization CHILD BORN OUTSIDE of the Philippines, after the naturalization, shall be STATUS deemed a citizen of the Philippines
considered citizens
automatically a citizen
become
deemed a citizen only during his minority, UNLESS, he resides permanently in the Philippines even after becoming of age deemed a Philippine citizen, UNLESS within 1 year after reaching the age of majority, he fails to register himself as a Philippine citizen at the American Consulate of the country where he resides and to take the necessary oath of allegiance
laws in force in her husbands country, she ACQUIRES HIS NATIONALITY; and 7. By CANCELLATION of the certificate of naturalization for the ff. reasons: i. Certificate was obtained fraudulently ii. Within 5 years of issuance of certificate, returns to his native country or foreign country to establish a permanent residence; - Remaining for more than 1 year in his native country; or - Two years in any foreign country, considered prima facie evidence of intention of taking up his permanent residence iii. Invalid declaration of intention iv. Minor children failed to graduate from a public/private high school, teaching Phil. history, government, and civics, through the fault of their parents v. Naturalized citizens has allowed himself to be used as a dummy NOTE: A judgment directing the issuance of certificate of NATURALIZATION IS A MERE GRANT OF POLITICAL PRIVILEGE, and that neither estoppel nor res judicata may be invoked to bar the State from initiating an action for its cancellation
D. Problems in Applying Nationality Principle
the
C. Loss of Philippine Citizenship

A Filipino citizen may lose his citizenship in the following ways: 1. By NATURALIZATION in foreign countries; 2. By EXPRESS RENUNCIATION of citizenship; 3. By subscribing to an OATH of ALLEGIANCE to support the constitution or laws of a foreign country upon reaching 21 years of age or more, subject to certain exceptions; 4. By rendering service to, or accepting COMMISSION IN THE ARMED FORCES of a foreign country, subject to certain exceptions; 5. By having been declared by competent authority, a DESERTER of the Phil. armed forces in time of war, unless pardoned or granted amnesty 6. A WOMAN, who upon her MARRIAGE TO A FOREIGNER, if by virtue of the
1. Dual or Multiple Citizenship Since each state determines its own nationals, it is possible that an individual may be CLAIMED AS A NATIONAL OF TWO OR MORE STATES. In the case of Nottebohm (1955), the ICJ applied the principle of EFFECTIVE NATIONALITY to determine the rights of an individual who may claim multiple nationality DEFINITION: a genuine bond of attachment between the individual and the State
NOTE: The Philippine Constitution discourages dual or multiple citizenship as inimical to the national interest and shall be dealt with by law. 2. Statelessness Two senses: i. DE JURE statelessness:
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A person has been stripped of his nationality by his former government without having an opportunity to acquire another ii. DE FACTO statelessness: A person possessed of a nationality but whose country does not give him protection outside its own territory (refugees) NOTE: the 1951 Geneva Convention of the Status of Refugees and the UN Conference on the Elimination or Reduction of Future Statelessness was convened to reduce statelessness. It provides: Conditions such as marriage, divorce, adoption, naturalization, expatriation, would not cause an individual to lose his nationality upon the risk of being stateless States cannot deprive their nationals of their identity as punishment or as instrument of discrimination Jus sanguinis country shall grant its nationality to a person born within its territory, if he would otherwise be stateless Jus soli country shall grant its nationality to a person who would otherwise be considered stateless when one of his parents is a citizen of the contracting state. NOTE: As long as stateless persons possess all of the qualifications, they can be naturalized as Philippine citizens without the requirement of reciprocity.
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Choice of Law Problems - Chapter VII: Domicile

Chapter VII. Domicile
This 7th Chapter deals with the application of the Domiciliary Principle as a Choice of Law. There are TWO MAJOR TOPICS in this Chapter: I. Domicile II. Comparative Merits and Demerits of Domicile and Nationality
3. Domicile establishes a connection between a person and a particular territorial unit 4. The burden of proving a change of domicile is on the person alleging it
C. Kinds of Domicile
1. Domicile of Origin A persons DOMICILE AT BIRTH

ILLEGITIMATE CHILD Follow the MOTHERs domicile
LEGITIMATE CHILD Follow the FATHERs domicile
I. DOMICILE defined by the municipal

law
A. Definition:
PERSON Natural persons DOMICILE Art. 50. For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the PLACE OF THEIR HABITUAL EVIDENCE. Domicile is determined by the LAW CREATING OR RECOGNIZING IT. In the absence thereof, place where legal representation or place of business is.
2. Domicile of Choice i. A persons VOLUNTARY DOMICILE The place freely chosen by a person sui juris (of full age and capacity) ii. To acquire, there must be a concurrence of: ACTUAL RESIDENCE; and ANIMO MANENDI - intent to make it ones home
DISTINCTION As to: condition necessary for its abandonment Domicile of Origin Stronger presumption in favor of its continuance NOT lost by mere abandonment and remains until replaced by a domicile of choice Presumed to be revived once the domicile of choice is given up and before a new one is acquired (reverter or revival doctrine) Domicile of Choice As compared to domicile of origin, less presumption in favor of its continuance
Juridical persons
CONFLICTS of LAW DEFINITION: The place with which a person has a SETTLED CONNECTION for certain legal purposes, either because: His home is there; or Place is assigned to him by law To acquire a domicile, there must be a concurrence of TWO ELEMENTS: i. INTENTION to make it ones domicile; and ii. PHYSICAL PRESENCE
As capacity revival
to: for
Deemed extinguished by removal of intent even prior to the acquisition of a new domicile
B. General Rules on Domicile

1. No person shall be without domicile A persons domicile of origin prevails until he acquires anew domicile 2. A person cannot have two simultaneous domiciles for a given purpose or a given time under the law of a particular state
3. Constructive Domicile Domicile assigned by operation of law to persons legally incapable of choosing their own domicile: Minors Domicile automatically changes when their fathers domicile changes
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Choice of Law Problems - Chapter VII: Domicile
Take the domicile of their mother upon their fathers death Mentally disabled Married women
after compulsion removed
has
been
2. Married women seeking to acquire a separate domicile from her husband

Art. 69, Family Code. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for such exemption
D. Special Problems in Domicile

1. People kept under physical or legal compulsion i. Military personnel ii. Prisoners iii. Persons with disabilities who are confined in institutions MODERN VIEW: A person under compulsion should not be barred from proving that he intended to establish permanent abode in the same place, even
MODERN VIEW: Dispenses with any presumption that the wifes domicile is the same as her husbands.
II. COMPARATIVE MERITS AND DEMERITS OF DOMICILE AND NATIONALITY

Nationality Merits logical since lawmakers considered the qualities of its citizens in making the laws easily verifiable from documents Demerits does not provide solution with respect to stateless persons those with multiple nationalities states with diverse legal systems persons ties to his nation may be so attenuated if he has lived in another country most of his life Domicile Merits genuine link suitable for countries with a federal system Demerits not easily determinable concept not clear-cut if domicile of origin given much weight, connection attenuated
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Choice of Law Problems - Chapter VIII: Principles on Personal Status and Capacity

Chapter VIII: Principles on Personal Status and Capacity
This Chapter deals with essential determinants of Personal Status and Capacity for purposes of Private International Law There are SIX MAJOR TOPICS in this Chapter: I. II. III. IV. V. VI. Definition Beginning and End of Personality Absence Name Age of Majority Capacity
completely delivered from the mothers womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.
Beginning of personality: BIRTH End of personality: DEATH
NOTE: A declaration of death issued by a competent court is considered valid for all purposes. Upon death, some of his rights and obligations are totally extinguished, while others are passed on to his successors.
III.ABSENCE
Determined by his PERSONAL LAW
PERSONAL STATUS
I. DEFINITION:
includes CONDITION and CAPACITY Embraces: beginning and end of human personality juridical capacity capacity to act family relations succession APPLICABLE LAW: if Filipino: National law (Art.15,CC) if Alien: Law of nationality or domicile, depending on the law applicable in the aliens country
Three Ways of Dealing with Absence 1. REBUTTABLE PRESUMPTION that a person is dead when he has been absent for a number of years; 2. JUDICIALLY INVESTIGATED and established which results in legal effects similar to those of death; and 3. A JUDICIAL DECREE shall have to be issued declaring the person dead before legal effects of death take place. The Philippines follows rebuttable presumption. Note that for the purposes of remarriage, a judicial decree of presumptive death is required.
NOTE: Status, once established by the personal law of the party, is given universal recognition. Hence, aliens can sue and be sued in our courts subject to Philippine procedural law even on matters relating to their status, but the law to be applied is their personal law.
II. BEGINNING AND PERSONALITY
END
OF
Art. 390. After the absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among heirs: (1) A person on board a vessel lost during a sea voyage, or on an airplane which is missing, who has not been heard of for four years since the loss of the vessel or airplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known, for four years.
The determination of the exact moment personality begins is governed by the PERSONAL LAW In the Philippines:
Art. 40. Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following Art.. Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
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Choice of Law Problems - Chapter VIII: Principles on Personal Status and Capacity
For specific purposes, Philippine law requires that a DECLARATION OF DEATH be issued before certain legal effects of death arise. For the purpose of contracting a subsequent marriage (also, periods in Arts. 390 and 391 were reduced to 2 years)
VI. CAPACITY
GENERAL RULE: Determined by PERSONAL LAW Attached to a person wherever he is EXCEPTION: Liability in Tort subject to the law of the place of tort Restrictions on the contracting capacity of a married woman in some jurisdictions, subject to the law governing the personal relations between the spouses CONFLICTS OF LAW PROBLEM: when a person who is fully capacitated under his personal law enters into a contract which will be performed in a foreign country
IV. NAME
Determined by PERSONAL LAW MODERN VIEW: A persons name is determined by law and cannot be changed without judicial intervention. In the Philippines: No person can change his name or surname without judicial authority. Grounds: Ridiculous or tainted with dishonor or extremely difficult to pronounce; When the change is necessary to avoid confusion; When the right to a new name is a consequence of a change in status; A sincere desire to adopt a Filipino name to erase signs of a former alien nationality which unduly hamper social and business life.
Illustration: In the case of Insular Government vs. Frank (1909), the Frank was considered an adult under the State of Illinois (his personal law) when he contracted with the Insular Government in the Philippines (where the appellant was still considered a minor). The SC applied the law of the place of contract and concluded that Frank was capacitated at the time of contract. Criticism: The same result would have been achieved had the court applied Franks national law in deciding his capacity to contract.
V. AGE OF MAJORITY
Determined by his PERSONAL LAW Once emancipated, parental authority is terminated, and is qualified for all acts of civil life, save certain exceptions. In the Philippines: RA 6809 lowered the age of majority to 18 years old, EXCEPT marriage-Delete this. Age of marriage IS 18. Are you referring to requirement of parental consent? If yes, put is as BUT marriage requires parental consent if parties are bet. 18-21.
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Choice of Law Problems - Chapter IX: Family Relations

Chapter IX. Family Relations
This 9th Chapter deals with the issues on Choice of Law in Family Relations. There are FIVE MAJOR TOPICS in this Chapter: I. II. III. IV. V. Marriage Divorce and Separation Annulment and Declaration of Nullity Parental Relations Adoption
violation of marital obligations may give rise to penal or civil sanctions
B. Extrinsic Validity
Formal requirements Philippines: in the
FAMILY RELATIONS Under the New Civil Code, questions of family rights, duties, status, conditions and capacity are governed by lex nationalii
Art.3, FC. 1. Authority of the solemnizing officer; 2. A valid marriage license except in the cases provided in Chapter 2 of this Title; and 3. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.
I. MARRIAGE A. Definition:
Art. 1, FC. Marriage is a special contract of permanent union between man and woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. MARRIAGE Mere declaration by the contracting parties in the presence of the solemnizing officer and 2 witnesses signed by the contracting parties and their witnesses attested by the solemnizing officer As a SPECIAL entered into by a man CONTRACT: and woman both 18 years old solemnized by one authorized by law permanent union, UNLESS one dies; or annulled or declared void cannot be abrogated, amended, or terminated by will nature, consequences, incidents are governed by law As a CONTRACT:
GENERAL RULE: lex loci celebrationis or law of the place of celebration (Asked in 91, 92, 93, 96, 03, BAR EXAMINATIONS) EXCEPTIONS: Void marriages in the Philippines even if valid in foreign country where celebrated: 1. When either or both parties are BELOW 18 YEARS of age even with parental consent; 2. BIGAMOUS OR POLYGAMOUS marriage; 3. MISTAKE AS TO IDENTITY of a contracting party; 4. A subsequent marriage performed WITHOUT RECORDING IN THE CIVIL REGISTRY the judgment of annulment or declaration of nullity, partition and distribution of properties and the delivery of the childrens presumptive legitimes; 5. Marriages where either spouse is PSYCHOLOGICALLY INCAPACITATED; 6. INCESTUOUS marriages; and 7. VOID marriages by reason of public policy
NOTE: These exceptions put into issue the capacity of the parties to enter into the marriage and therefore relate to the substantive requirement for marriage. Since the personal law of the parties, e.g. the national law of Filipinos, governs the questions of intrinsic validity of marriages between the Filipinos abroad, the above enumerations are exceptions to lex loci celebrationis precisely because they are controlled by lex nationalii.
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C. INTRINSIC VALIDITY capacity of a person to marry
refer to
Determined by the parties PERSONAL LAW, which may either be domicile or nationality. Intrinsic requirements: 1. LEGAL CAPACITY 2. Must NOT BE BARRED by any impediment 3. CONSENT freely given in the presence of an authorized solemnizing officer Hague Convention on Validity of Marriages allows a contracting state to refuse recognition of the marriage in the ff. cases: i. One of the spouses was already married ii. Spouses were related, by blood or adoption iii. Had not attained the minimum age, nor acquired the necessary dispensation iv. Did not have the mental capacity to consent v. Did not freely consent
2. Property relations between the spouses The Hague Convention declares that the governing law on matrimonial property regime is: The internal law designated by the spouses before the marriage In the absence thereof, the internal law of the state in which the spouses fix their habitual residence In the Philippines:
Art. 80, FC. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines not affecting property situated in a foreign country whose laws require different formalities for their extrinsic validity.
(Asked in 03 BAR EXAMINATIONS) DOCTRINE OF IMMUTABILITY OF MATRIMONIAL PROPERTY REGIME: The change of the nationality on the part of the husband or wife or both does not affect the original property regime EXCEPT when the law of the original nationality itself changes the marital regime, hence, the property regime has to change accordingly.
NOTE: General rule on Proxy marriages: Where permitted to the law of the place where the proxy participates in the marriage ceremony, are entitled to recognition in countries adhering to lex loci celebrationis rule at least insofar as formal validity is concerned. In the Philippines, law does not sanction proxy marriages. (Asked in 85-89 BAR EXAMINATIONS)
D. Effects of Marriage
1. Personal relations between spouses Include: marital fidelity, respect, cohabitation, support and the right of the wife to use the husbands family name governed by the NATIONAL LAW of the parties NOTE: if the spouses have different nationalities, generally the national law of the husband may prevail as long as said law is not contrary to law, customs and good morals of the forum.
II. DIVORCE AND SEPARATION

Hague Convention provides that the granting of divorce or separation must comply with the NATIONAL LAW of spouses and LEX FORI (law of the place where the application for divorce is made) (Asked in 94 BAR EXAMINATIONS) Grounds for divorce: LEX FORI Divorce Decrees Obtained by Filipinos GENERAL RULE: Decrees of absolute divorce obtained by Filipinos abroad have no validity and are not recognized in Philippine jurisdiction. EXCEPTION:
Art.26(2).Where a marriage between a Filipino citizen and a foreigner is validly
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celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.
Personal law of the illegitimate child is the MOTHERS PERSONAL LAW.
B. Parental Authority Over the Child

PERSONAL LAW of the FATHER controls the rights and duties of parents and child.
Validity of Foreign Divorce between Foreigners Hague Convention: a foreign divorce decree will be recognized in all contracting states if, at the date of the institution of the proceedings, i. either spouse had his habitual residence there; ii. both spouses were nationals of that state; or iii. if only the petitioner was a national, he should have his habitual residence there (Asked in 75-79, 80-84, 85-89, 95-99, 00-04, 05-08 BAR EXAMINATIONS)
NOTE: Reference to the personal law of the father may result in joint exercise of parental authority over the property of the child by the father and mother; or, in the case of the illegitimate child, to the mother alone.
V. ADOPTION
(Asked in 75-79, 95-99, 00-04, 05-08 BAREXAMINATIONS)
A. DEFINITION:
III.ANNULMENT AND DECLARATION OF NULLITY

Traditional approach: LEX LOCI CELEBRATIONIS Policy-centered approach: law of the state of MARITAL DOMICILE
the act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature.
B. Domestic Adoption Act of 1998

An alien may adopt, provided he is: 1. Of LEGAL AGE 2. In possession of all CIVIL CAPACITY and LEGAL RIGHTS 3. Of GOOD MORAL CHARACTER 4. No conviction of any crime involving moral turpitude 5. Emotionally and psychologically capable of caring for children 6. At least 16 years older than the adoptee 7. In a position to support and care for his children 8. His country has diplomatic relations 9. Residence in the Philippines for at least 3 continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered 10. Certificate of legal capacity to adopt in his country to be issued by his diplomatic or consular office; and 11. His government allows the adoptee to enter his country as his adopted son/daughter The requirement on residency and certificate of qualification to adopt may be waived for the following: i. A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity; or
A. Jurisdiction to Annul
Vested in the court of the domicile of the parties Jurisdiction over the non-resident defendant is not essential
B. The Governing Law

Lex loci celebrationis determines the consequences of any defect to form In general, same applies with reference to substantive or intrinsic validity. But with regard to capacity of the parties to marry, national law is determinative
IV. PARENTAL RELATIONS A. Determination of Legitimacy

Legitimacy: personal law of the parents In the Philippines: The legitimacy of the child is governed by the NATIONAL LAW of the parents If parents belong to different nationalities, legitimacy of the child is governed by the NATIONAL LAW of the FATHER
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ii. iii.
One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within 4th degree of consanguinity or affinity of the Filipino spouse.
The requirement of 16 years difference between the adopter and the adoptee may be waived if the adopter is: i. The biological parent of the adoptee ii. The spouse of the adoptees parent. DEFINITION: A socio-legal process of adopting a Filipino child by a foreigner or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial custody is undertaken, and the decree of adoption is issued outside the Philippines. This is an alternative means of child=care if the child cannot be cared for in any suitable manner in the Philippines.
C. Inter-country Adoption
NOTE: Adoption is not one of the ways prescribed by law for the acquisition of Filipino citizenship
D. Effects of Adoption
Two different legal orders: 1. If the adopters personal law applied same law governs the effects of the adoption. 2. If the personal law of the child determined the creation of the legal relationship such law will cease and yield to the personal law of the adopting parents.
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Choice of Law Problems - Chapter X: Property

Chapter X. Property
This Chapter deals with the Choice of Law issues on Property. There are SIX MAJOR TOPICS in this Chapter: I. II. III. IV. V. VI. Controlling Law Capacity to Transfer or Acquire Property Extrinsic and Intrinsic Validity Exceptions to Lex Situs Rule Situs of Certain Properties Patents, Trademarks, Trade Name and Copyright
IV. EXCEPTIONS TO LEX SITUS RULE

A. Where the transaction does not affect transfer of title to or ownership of the land: LEX INTENTIONIS or LEX VOLUNTATIS B. In contracts where real property is offered by way of a security for the performance of an obligation such as loan, the principal contract is the loan while the mortgage of the land is only an accessory. Mortgage LEX SITUS Loan contract rules on ORDINARY CONTRACTS C. Testate or intestate succession and capacity to succeed: NATIONAL LAW of the decedent. D. Under a policy-centered approach: Forum court is not bound to look to the law of the situs when the situs of the movable property is insignificant or accidental. Questions relating to the validity and effect of the transfer of the movable property: Law of the place of principal use Where the issue involves considerations other than the validity and effect of the transfer itself Law of the state which has real interest
I. CONTROLLING LAW
MOVABLE PROPERTY Lex domicilii (law of the place of the domicile of the owner); or Lex situs (law of the place where the property is situated); or Lex loci actus (law of the place where the transaction was completed); or proper law of transfer IMMOVABLE PROPERTY Lex situs/ lex rei sitae (law of the place where the immovable property is located) (Asked in 95, 04, BAR EXAMINATIONS)
In the Philippines: Real and personal property are subject to the law of the country where it is situated.
V. SITUS OF CERTAIN PROPERTIES A. Situs of Personal Property for Tax Purposes

Mobilia sequuntur personam
II. CAPACITY TO TRANSFER ACQUIRE PROPERTY
OR
The capacity of the person to transfer or acquire real property is governed by LEX SITUS.
B. Situs of Money
Illustration: In Leon vs. Manufacturers Life Insurance Co. (1951), the situs of the funds, having been endorsed in an annuity in Canada, had situs in Canada.
NOTE: Transfer of property to a foreigner who subsequently became a Filipino citizen shall be recognized. (Llantino vs. Co Liong Chong) (Asked in 00-04, BAR EXAMINATIONS)
III.EXTRINSIC VALIDITY
AND
INTRINSIC
C. Situs of Debts
Debt is located where the debtor is located because it is where he can be sued and the debt collected.
The formalities of a contract to convey property are governed by LEX SITUS
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Choice of Law Problems - Chapter X: Property
D. Situs of Stocks
Corporate
Shares
of
Shares of stock are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner. No transfer, however, shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation. Situs of shares of stock is NOT the same as situs of the income derived from the sale of shares (CIR v. Anglo California National Bank, 1960)
VI. PATENTS, TRADEMARKS, TRADE NAME, AND COPYRIGHT

Union Convention for the Protection of Industrial Property: trade name shall be protected in all countries of the Union without the obligation of filing of registration, whether or not it forms part of the trade name.
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Choice of Law Problems - Chapter XI: Contracts

Chapter XI. Contracts
This 11th Chapter deals with the Choice of Law issues on Contracts. There are SIX MAJOR TOPICS in this Chapter: I. II. III. IV. V. Contracts Involving a Foreign Element Extrinsic Validity of Contracts Intrinsic Validity Capacity to Enter Contracts Choice of Law Issues in Conflicts Contracts Cases VI. Limitations to Choice of Law VII. Applicable Law in the Absence of Effective Choice
(Asked in 95, 02 BAR EXAMINATIONS) law of the place of making Merits: relative ease in establishing certainty and stability Demerit: unjust results when place of making entirely incidental
CONTRACT: The meeting of the minds between two persons whereby one binds himself, with respect to the other, to give something or render some service. GENERAL RULE: A contract is obligatory in whatever form it may have been entered into provided that all the essential requisites for its validity are present. EXCEPTION: Unless provided otherwise by law or in the agreement In the Philippines: The contracting parties may establish such stipulations, clauses, terms, conditions as they may deem convenient provided that they are not contrary to law, morals, good customs, public order, or public policy.
B. LEX LOCI SOLUTIONIS Law of the place of performance governs: time, place, and manner of performance sufficiency of performance excuses for non-performance Merit: always connected to the contract in a significant way Demerits not helpful when the contract is performed in 2 or more states with conflicting laws C. LEX LOCI INTENTIONIS Law intended by the parties May be express or implied 1. Express choice of law provision in the contract must be recognized unless there are cogent reasons for not doing so 2. Implied based on contemporaneous and subsequent acts of the parties often upheld with reference to the rule of validity of contracts which presumes that the parties contemplate to enter into a valid contract
I. CONTRACTS INVOLVING FOREIGN ELEMENT
Parties reasonable expectations: The forum court must be aware of the likelihood that the parties may have entered into the contract with a particular State law in mind.
IV. CAPACITY CONTRACTS
TO
ENTER
Determined by the PERSONAL LAWS of the contracting parties
II. EXTRINSIC CONTRACTS
VALIDITY
OF
V. CHOICE OF LAW ISSUES IN CONFLICTS CONTRACTS CASES A. Choice of Forum Clause

A case arising from a contract will be litigated in the forum chosen by the parties if the choice of forum clause specifically identifies it as the ONLY VENUE. When there is no fraud or overreaching, and there is no showing that the choice-
Governed by LEX LOCI INTENTIONIS principle of LOCUS REGIT ACTUM: place governs the act
III.INTRINSIC VALIDITY
Three Possible Laws: A. LEX LOCI CONTRACTUS
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Choice of Law Problems - Chapter XI: Contracts
of-forum clause would be unreasonable and unjust, the clause must be given effect.
VI. LIMITATIONS TO CHOICE OF LAW

(Asked in 90-94 BAR EXAMINATIONS) A. Cannot be a law which has NO connection at all with the transaction or the parties B. Law as changed will govern EXCEPT if the change is so revolutionary that it was never contemplated by the parties C. Choice of law should not be interpreted to oust the jurisdiction which the court has already acquired over the parties and the subject-matter. D. Cannot contract away provisions of law especially peremptory provisions heavily impressed with public interest E. Cognovit clause (confession-of-judgment clause) valid only if the parties were of equal bargaining power and the defendant agreed to it voluntarily
B. Contracts with Arbitration Clause

An arbitration clause, stipulating that the arbitral award of an arbitral panel in a foreign country is FINAL AND BINDING, is not contrary to public policy. It does not oust our courts of jurisdiction as the international arbitral award, the award of which is not absolute and without exceptions, is still judicially reviewable under certain conditions provided for by the UNCITRAL Model Law on ICA as applied and incorporated in RA 9285. ( Korea Technologies Co., Ltd. v. Lerma, 2008) It is regarded as the wave of the future in international civil and commercial disputes. Brushing aside a contractual agreement calling for arbitration between the parties would be a step backward. Consistent with the policy of encouraging alternative dispute resolution methods, courts should liberally construe arbitration clauses. (Ibid.)
VII. APPLICABLE LAW IN THE ABSENCE OF EFFECTIVE CHOICE

2nd Restatement: law of the place of the MOST SIGNIFICANT RELATIONSHIP (Asked in 94 BAR EXAMINATIONS) with the contract as a whole or with a specific issue arising therefrom Factors to consider: 1. Place of contracting 2. Place of negotiating 3. Place of performance 4. Situs of the subject-matter of the contract 5. Parties domicile, residence, nationality, place of incorporation, place of business 6. Place under whose local law the contract will be most effective
C. Adhesion Contracts
Adhesion contracts are not entirely prohibited. The one who agrees to the contract is in reality, free to reject it entirely; if he adheres, he gives his consent. Void if there is UNDUE ADVANTAGE on the part of the dominant party Ambiguity construed strictly against the drafter
D. Special Contracts
1. Sale or barter of goods: lex situs 2. Simple loan granted by financial institutions: law of the permanent place of business 3. Loan granted by a private individual or where subject matter of loan is personal: law of the place where the loan was obtained 4. Pledge, Chattel Mortgage, Antichresis: lex situs 5. Carriage of goods by sea: law of the place of destination (Art.1753, CC) Code of Commerce COGSA 6. International Air Transportation: Warsaw Convention
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Choice of Law Problems - Chapter XII: Succession

Chapter XII. Succession
This 12th Chapter deals with the Choice of Law issues in Succession. There are SEVEN MAJOR TOPICS in this Chapter: I. Extrinsic Validity II. Intrinsic Validity III. Interpretation of Wills IV. Revocation V. Probate VI. Administration of Estates VII. Trusts
III.INTERPRETATION OF WILLS
Governed by the NATIONAL LAW of decedent
IV. REVOCATION
(Art. 829, CC)
Testator Philippine domiciliary Nondomiciliary Place of revocation Philippines Philippine law 1. Philippine law 2. lex loci actus (law of the place of revocation) (Coquia & Pangalangan) 1. lex loci celebrationis 2. lex domicilii at the time of the revocation. Applicable law Philippine law
I. EXTRINSIC VALIDITY
(Arts.17, 815-817, CC) (Asked in 75-79, 90-94, 95-99 BAR EXAMINATIONS)
Testator Place of Execution Philippines Foreign country Applicable Law Philippine law 1. Lex loci celebrationis 2. Philippine law 1. law of nationality 2. Philippine law 1. Law of nationality; 2. Law of domicile; 3. Lex loci celebrationis; 4. Philippine law
Philippine domiciliary Foreign country Nondomiciliary
Filipino
V. PROBATE
Law of the forum governs procedural matter Compliance with extrinsic requirements governed by Arts.17,815-817, CC)
Philippines
Alien Foreign country
VI. ADMINISTRATION OF ESTATES

Territorial: governed by the law of the place where the administration takes place, and that is the law of the country from which the administrator derives his authority.
Filipinos prohibited from making joint wills, either here or abroad (Arts.818819,CC) (Asked in 00-04 BAR EXAMINATIONS) Code silent as to validity of a joint will executed by an alien in the Philippines. It is suggested that it should not be probated if it would affect heirs in the Philippines.
VII.
TRUSTS
Testamentary trusts Extrinsic validity: rules governing wills apply Intrinsic validity: lex situs since a trust involves property
II. INTRINSIC VALIDITY

Governed by the NATIONAL LAW of decedent (Arts.16(2) and 1039,CC) (Asked in 75-79, 80-84, 85-89, 90-94, 95-99, 00-04 BAR EXAMINATIONS)
Page 272 of 276
Chapter XIII: Torts and Crimes
Chapter XIII. Torts and Crimes

This 13th Chapter deals with the Choice of Law issues in Torts and Delicts. There are TWO MAJOR Chapter: I. LESSONS in this
2. The enforcement of the tort would not infringe the public policy of the forum; and 3. The judicial machinery of the forum is adequate for its proper enforcement. ATCA (Alien Tort Claims Act) (Asked in 00-04 BAR EXAMINATIONS) Grants US district courts original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the US. In the Philippines: no specific statutory law governing the enforcement of claims arising from foreign torts
Torts A. Traditional Approach B. Modern Approach C. Foreign Tort Claims II. Crimes
I. TORTS A. Traditional Approach

1. lex loci delicti commissi applies in matters concerning conduct and safety 2. lex domicilii of parties applies in matters concerning loss distribution or financial protection Lex loci delicti commissi where tortuous conduct and injury take place in different states: 1. common law: place of injury a. last act (vested rights theory) 2. civil law: place of tortuous conduct b. principle is that the legality or illegality of a persons act should be determined by the law of the state where he is at the time he does such act
II.CRIMES
Applicable Law: LEX LOCI DELICTI COMMISSI 2 principles: 1. nullum crimen sine lege 2. territoriality principle Exceptions to the territoriality principle in the Philippine: 1. crimes committed by state officials, diplomatic representatives and officials of recognized international organizations. based on the theory of state immunity from suits limited to official acts 2. crimes committed on board a foreign vessel even if within the territorial waters of the coastal state, as long as the effect of such crime does not affect the peace and order of the coastal state. 3. Crimes which, although committed by Philippine nationals abroad are punishable under Philippine law, to wit: - crimes committed while on Philippine ship or airship - forging or counterfeiting Philippine coins or currency - introducing counterfeit coins or currency into the Philippines - Public officers or employees committing offenses in the exercise of their functions - Crimes against national security and the law of nations (Art. 2, RPC)
B. Modern Approach
In determining the state which has the most significant relationship, the following factors are to be taken into account: a. place of tortuous conduct b. place of injury c. victims and tortfeasors domicile, residence, nationality, place of incorporation and place of business d. place where the relationship between the parties is centered Tort liability is transitory. An action for tort may be brought wherever the tortfeasor is subject to suit. Conditions for enforcement of foreign tort claims: 1. The foreign tort is based on a civil action and not on a crime.
C. Foreign Tort Claims
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Chapter XIV: Corporations and Other Juridical Entities
Chapter XIV. Corporations and Other Juridical Entities

This 14th Chapter deals with the application of Private International Law to Corporations and other Juridical Entities. There are FIVE MAJOR LESSONS in this Chapter: I. Personal Law of Corporations II. Exception to the Rule of Incorporation Test III. Domicile/Residence of Corporations IV. Jurisdiction of Foreign Corporations V. Right of Foreign Corporations to Bring Suit
IV. JURISDICTION CORPORATIONS
OF
FOREIGN
All foreign corporations lawfully doing business here in the Philippines shall be bound by all laws and rules and regulations applicable to domestic corporations except provisions for the creation, formation, organization or dissolution of corporations or liabilities, responsibilities or duties of stockholders, members or officers of the corporation to each other. Service of summons upon foreign corporations doing business in the Philippines may be made: a. on its resident agent b. in the absence thereof, on the government official designated by law or any of its officers or agents within the Philippines c. on any officer or agent of said corporation in the Philippines by serving summons through diplomatic channels.
I. PERSONAL CORPORATIONS

LAW
OF
GENERAL RULE: Law of the place of incorporation Personal law of the corporation governs the following issues: 1. existence and the legal character of the corporation 2. capacity and powers of the corporation 3. internal organization of the corporate enterprise alteration of the charter and the dissolution of the corporation
V. RIGHT OF FOREIGN CORPORATIONS TO BRING SUIT

General Rule: license to do business in the Philippines required Exceptions: 1. isolated transactions 2. action to protect trademark, trade name, goodwill, patent or for unfair competition 3. agreements fully transacted outside the Philippines 4. petition filed is merely corollary defense in a suit against the corporation EFFECT OF FAILURE TO SECURE A LICENSE TO TRANSACT BUISNESS The foreign corporation has no right to sue in the Philippines but it can still be sued. Although the contracts entered into may be valid as between the parties, it may not be enforced in the Philippine courts.
II. EXCEPTION TO THE RULE OF INCORPORATION TEST

A. Constitutional and statutory restrictions (Art. XII, 1987 Constitution) B. Control Test during war Courts may pierce the veil of corporate identity and look into the nationality of the stockholders to determine the citizenship of the corporation.
III.DOMICILE/RESIDENCE CORPORATIONS

OF
that fixed by the law creating them; or if not so fixed, the place where their legal representation is or where they exercise their principal functions. (Art. 51, CC)
A foreign corporation granted license to operate in the Philippines acquires domicile here.
Page 274 of 276
Chapter XV: Foreign Judgments
Chapter XV. Foreign Judgments

This 15th Chapter deals with the Recognition, Enforcement and Effect of Foreign Judgments. There are SIX MAJOR LESSONS in this Chapter: I. II. III. IV. V. VI. Recognition vs. Enforcement Bases of Recognition and Enforcement Policies Underlying Requisites Procedure for Enforcement Effects of Foreign Judgments
III.POLICY OF PRECLUSION UNDERLYING RECOGNITION AND ENFORCEMENT

The policy of preclusion seeks to protect party expectations resulting from previous litigation, to safeguard against the harassment of defendants, to insure that the task of courts not be increased by never-ending litigation of the same disputes, and in a larger sense to promote what Lord Coke in the Ferrers Case of 1599 stated to be the goal of all law: rest and quietness.(Mijares v. Ranada, 2005)
FOREIGN JUDGMENT: a decision rendered outside the forum and encompasses judgments, decrees and orders of courts of foreign countries. I.
RECOGNITION JUDGMENT
OF
FOREIGN
Passive act of giving the same effect that it has in the State where it was rendered with respect to the parties, the subject matter of the action and the issues involved without the necessity of filing an action in the forum giving effect to the judgment. Examples of foreign judgments which can only be recognized: declaratory judgments, judgments which give no affirmative relief, judgments which determine the parties interests in a thing or status.
RELATED CONCEPTS 1. Res judicata: once there is a final judgment, resolution on the issues litigated is binding on the parties and their privies 2. Merger: Plaintiffs cause of action is merged in the judgment so that he may not relitigate that exact claim 3. Bar: successful defendant can interpose as a defense the judgment in his favor to avert a 2nd action by the plaintiff on the same claim 4. Direct estoppel: relitigation of all matters decided are precluded 5. Indirect estoppel: all essential issues of fact actually litigated cannot be relitigated
ENFORCEMENT OF A FOREIGN JUDGMENT A foreign judgment is enforced when, in addition to being recognized, a party is given affirmative relief to which the judgment entitles him and it necessarily requires the filing of an action. This necessarily implies recognition.
IV. REQUISITES FOR RECOGNITION OR ENFORCEMENT

A. Foreign court had JURISDICTION over the parties and the case B. Judgment VALID under the laws of the country that rendered it C. Judgment FINAL and EXECUTORY to constitute res judicata in another action D. RECIPROCITY: state where foreign judgment was obtained allows recognition and enforcement of Philippine judgments E. Judgment is for a FIXED SUM of money 1. Foreign judgment not contrary to PUBLIC POLICY or GOOD MORALS of country where it is sought to be enforced 2. Judgment not obtained by EXTRINSIC FRAUD, COLLUSION, MISTAKE of fact or law
II. BASES OF RECOGNITION ENFORCEMENT
AND
1. COMITY- requires reciprocity between the concerned jurisdictions 2. DOCTRINE OF OBLIGATION -foreign judgment of a court of competent jurisdiction imposes a duty on the losing litigant - based on the vested rights theory
Page 275 of 276
Chapter XV: Foreign Judgments
V. PROCEDURES FOR ENFORCEMENT

1. SUMMARY PROCEEDING Followed in most civil law countries Validation proceeding: authenticated copy of foreign judgment validated by clerk of court 2. JUDGMENT REGISTRATION Authenticated copy filed in the registrars office with the proofs required 3. PETITION Followed in common law countries and in the Philippines The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign judgment in the Philippines. But there is no question that the filing of a civil complaint is an appropriate measure for such purpose (Mijares v. Ranada, 2005)
VI. EFFECT OF FOREIGN JUDGMENT IN THE PHILIPPINES (Sec. 48, Rule

39, Rules of Court) In an action in rem: the foreign judgment is deemed conclusive upon the title to the thing, In an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as between the parties and their successors in interest by a subsequent title. However, in both cases, the foreign judgment is susceptible to impeachment in our local courts on the grounds of: want of jurisdiction want of notice to the party collusion fraud clear mistake of law or fact It has been recognized that public policy as a defense to the recognition of judgments serves as an umbrella for a variety of concerns in international practice which may lead to a denial of recognition. (Mijares v. Ranada, 2005)
- end of Private International Law - end of Civil Law Volume 2
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