MEMORANDUM FOR THE PLAINTIFF

Plaintiff VICTORIA NUEGA, by counsel, respectfully submits this memorandum to wit:

PREFATORY STATEMENT

The administration and enjoyment of the community property shall belong to both spouses
jointly.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the common properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without authority of the
court or the written consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. (Article 96 of the Family Code)


STATEMENT OF THE CASE

This is an action for annulment of contract with damages filed by Victoria Nuega against Rosito
Toribio for the sale of their rest house by her husband, Greggy Nuega without her consent.

STATEMENT OF FACTS

Victoria Nuega, the plaintiff is the wife of Greggy Nuega. They got married in 2009; her
husband and she have been living in the said rest house. When Ms.Nuega learned that she was
having a baby sometime in 2010, they decided to buy a bigger house to make room for the nanny
and all the baby stuff they need. The said property was bought by her husband while he was still
single.

Mr. Toribio and Spouses Nuega are close friends. Mr. Toribio usually came to their rest house
for weekend dinners. Sometime in January 2010, Ms.Nuega mentioned their plan to him. He said
that he would love to buy their rest house should they finally decide to sell it as something as
being a good investment.


In April 2010, Ms. Nuega called Mr. Toribio and informed him that they finally found a bigger
house in Ma. Luisa, Cebu City. She told him that they are now selling their rest house in Talisay.
Since he was still interested in buying it, she offered it to him at P5 million. He said that he will
call back once the deed of sale and manager's check were ready.

While Ms.Nuega left for Japan in May 2010 to give birth she eventually decided not to sell the
rest house anymore. However, Mr. Toribio called her husband to proceed with the sale and so
did he signed the deed of sale and that he had already the manager's check. When Ms. Nuega
told his husband that she already changed her mind, he said that he will just talk about it when
she get back. So Ms. Nuega called Mr. Toribio and explained that they were no longer selling the
rest house and even offered to return his money in cash but Mr. Toribio insisted that the sale had
already consummated and refused to accept the money.


The defendant, Rosito Toribio, have been friends with Ms. Victoria Nuega and her husband,
Greggy Nuega, since high school. He alleged that sometime in January 2010, he visited their rest
house. Ms. Nuega told me that they were planning to buy a bigger house since they were
expecting a baby soon and they would need a nursery room and storage area for their baby stuff.
Since Mr. Toribio has been living alone in an apartment for several years, he thought it might be
a good idea to invest and buy his own rest house. Since the spouses Nuega have been his friends
for a long time, he has seen how they took care of their rest house. Thus, he told Ms. Nuega that
he will buy it should they finally decide to sell it.

In April 2010, Ms. Nuega told Mr. Toribio that they finally found a bigger house. She asked if
he was still interested in buying their rest house. When he told her he was, she informed him that
they were giving it for P5 million so he immediately asked a lawyer-friend to prepare the
necessary deed of sale as well as the manager's check for P5 million. Sometime in June 2010, he
met up with Mr. Nuega and told him that the sale could not have come at a better time since he
was getting married and will use the rest house as our conjugal home. After he handed Mr.
Nuega the manager's check, he signed the deed of sale.


Mr. Toribio believe that during that phone call from Ms. Nuega cancelling the sale, she told him
that she wasn't happy that he was getting married and was going to use the rest house as their
conjugal home. He thinks that Ms. Nuega might be jealous because he always thought her to be
extremely nice and sweet to him. But for him that's absurd for shes already married and they
have been really good friends.


ISSUE:

(1)Whether or not Mr. Greggy Nuega can encumber or alienate any real property of the common
properties without the consent of his wife?


ARGUMENTS/DISCUSSIONS:


(1)No, Under Philippine laws, the property relationship between the spouses shall be governed
by contract executed before the marriage, which may be:
a. Absolute community;
b. Relative community or conjugal partnership of gains;
c. Complete separation of property;
d. Any other property relationship.
In the absence of such contract, or if the contract is void, on marriages contracted before August
3, 1988, the system of conjugal partnership of gains shall govern and on marriages contracted on
or after August 3, 1988 (effectivity of the Family Code of the Philippines), the system of
absolute community of property shall govern. Be it noted that the Spouses Nuega were married
in the year 2009.

By virtue of Art. 88. The absolute community of property between spouses shall commence at
the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other time shall be void. (145a)

Since the Absolute Community of Property Regime shall govern with regard to the property
administration of the Spouses Nuega, the Civil Code has provided, Art. 91. Unless otherwise
provided in this Chapter or in the marriage settlements, the community property shall consist of
all the property owned by the spouses at the time of the celebration of the marriage or acquired
thereafter and Art. 93. Property acquired during the marriage is presumed to belong to the
community; unless it is proved that it is one of those excluded therefrom.


The law is express in its words when it said in Article 5 that since Article 166 of the Civil Code
requires the consent of the wife before the husband may alienate or encumber any real property
of the conjugal partnership, it follows that acts or transactions executed against this mandatory
provision are void except when the law itself authorizes their validity.

A leading case, is that of Nicolas v. Court of Appeals, No. L-37631, October 12, 1987, 154
SCRA 635; Garcia v. Court of Appeals, 215 Phil. 380 (1984); Tolentino v. Cardena, 123 Phil.
517 (1966) where the Supreme Court categorically held that:

In not a few cases, we ruled that the 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 because it is in contravention of the mandatory requirements of
Article 166 of the Civil Code.


A well recognized exception to the general rule of the consent a wife is needed before conjugal
property may be disposed of is found in the case of:

San Juan Structural and Steel Fabricators, Inc. v. Court of Appeals, 357 Phil 631 (1998) which
states that, Neither spouse could alienate in favor of another, his or her interest in the partnership
or in any property belonging to it, or ask for partition of the properties before the partnership
itself had been legally dissolved. Nonetheless, alienation of the share of each spouse in the
conjugal partnership could be had after separation of property of the spouses during the marriage
had been judicially decreed, upon their petition for any of the causes specified in Article 191 of
the Civil Code in relation to Article 214 thereof. As an exception, the husband may dispose of
conjugal property without the wife's consent if such sale is necessary to answer for conjugal
liabilities mentioned in Articles 161 and 162 of the Civil Code.

However, this is not the case at bar, to reiterate the decision to sell the said rest house was made
on own accord and initiated even by Ms. Nuega thinking that they may need a bigger house since
they were expecting a baby. The recognized exception is that consent may be dispensed only for
the answer of conjugal liabilities.


As provided further in the case of , THELMA A. JADER-MANALO, petitioner, vs. NORMA
FERNANDEZ C. CAMAISA and EDILBERTO CAMAISA, respondents. (G.R. No. 147978,
January 23, 2002)

The law requires that the disposition of a conjugal property by the husband as administrator in
appropriate cases requires the written consent of the wife, otherwise, the disposition is void.
The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell
to be effective, the consent of both husband and wife must concur.

Respondent Norma Camaisa admittedly did not give her written consent to the sale. Even
granting that respondent Norma actively participated in negotiating for the sale of the subject
properties, which she denied, her written consent to the sale is required by law for its validity.
Significantly, petitioner herself admits that Norma refused to sign the contracts to sell.
Respondent Norma may have been aware of the negotiations for the sale of their conjugal
properties. However, being merely aware of a transaction is not consent.


From the perusal of the abovementioned laws and jurisprudence, it can be gleaned that the
consent of the wife is a mandatory requirement before a husband can encumber or alienate a any
real property common to them. Thus there can be no valid contract of sale between Mr. Nuega
and Mr. Toribio on the ground that it lacks the consent of the formers wife.

Such that, by Article1318 of the Civil Code:

There is no contract unless the following requisites concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established.

Article 1390 of the Civil Code:
The following contracts are voidable or annullable, even though there may have been no damage
to the contracting parties:
(1) Those where one of the parties is incapable of giving consent to a contract;
(2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or
fraud.
These contracts are binding, unless they are annulled by a proper action in court. They are
susceptible of ratification.

Henceforth, the three elements of a valid contract include consent of the parties, object which
must be certain and the cause or obligation of the parties. Ms. Nuega was in Japan when the sale
consummated, she was away in order to give birth hence she was incapable of giving her consent
to the sale. Such being the case, in Art. 1390 (1) the contract on which her husband Mr. Nuega
and Mr. Toribio entered into is voidable or annullable contract where the proper action in court is
annulment.


To enlighten us further on the assumption that the respondent may be a buyer in good faith, the
case of Spouses Claro and Nida Bautista, petitioners, vs. Berlinda F. Silva,, respondent. [G.R.
No. 157434. September 19, 2006.] the Supreme Court unconditionally pronounced that:

To establish his status as a buyer for value in good faith, a person dealing with land registered in
the name of and occupied by the seller need only show that he relied on the face of the seller's
certificate of title. But for a person dealing with land registered in the name of and occupied by
the seller whose capacity to sell is restricted, such as by Articles 166 and 173 of the Civil Code
or Article 124 of the Family Code, he must show that he inquired into the latter's capacity to sell
in order to establish himself as a buyer for value in good faith.

WHEREFORE, premises considered, it is prayed to this HONORABLE COURT, that
judgement be rendered in favor of petitioner Victoria Nuega and for the annulment of contract of
sale with damages against Mr. Rosito Toribio, herein respondent.


Other relief just and equitable is likewise prayed for.


Cebu City, May 29, 2013



Atty. Rhobie S. Corbo,CPA
Counsel for the Plaintiff