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I.

MANILA, PHILIPPINES

CENTRAL BOOK SUPPLY, INC.

Arts. 414-773

VOLUME TWO

Member, Philippine Bar; Professor and Bar Reviewer in Civil Law


MLQ School of Law, Ateneo College of Law
San Beda College of Law

RICARDO C. PUNO, A.B., LL.B.

Associate Justice, Supreme Court


Pr ofessor and Bar Reviewer in Civil Law
MLQ School of Law, Ateneo College of Law

JOSE B. L. REYES, A.B., LL.B., LL.M., D:C.L.

PHILIPPINE CIVIL LA W

OF

AN O U T L I N E

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321

-A

ALL' RIGHTS RESERVED

NQ

Any copy without the signature of any of the authors


On this page is unauth01'ized and shall be considered as
proceed'ing from a n illegal source.

Arts. 414-773

VOL. II

RICARDO C. PUNO

AND

JOSE B. L. REYES

BY

PHILIPPINES COPYRIGHT _

Third Edition 1958

PHILIPPINES COPYRIGHT _ 1956

Second Edition -

1954

PHILIPPINES COPYRIGHT -

First Edition -

VOLUME TWO -

iii

TITLE IV. SOME SPECIAL PROPERTIES


Chapter 1. Waters
..:______________________ ______
Section 1. Ownership of Waters
Section 2. The Use of Public Waters
Section 3. The Use of Wate~'s of Private Ownership __
Section 4. Subterranean Waters
,.. __
Section 5. General Provisions
Chapter 2. ~Jnerals
Chapter 3. Trade-Marks and Trade-Names
TITLE V. POSSESSION
Chapter 1. Possession and the Kinds Thereof
Chapter 2. Acquisition of Possession
Chapter 3. Effects of Possession
.______________
TITLE VI. USUFRUCT
.______________
Chapter 1. Usufruct in General
Chapter 2. Rights of the Usufructuary
Chapter 3. Obligations of the Usufructuary
Chapter 4. Extinguishment of Usufruct

I1~

Page

79
79
79
81
82
83
84
8G
88
80
90
95
99
118
118
122
132
142

TITLE I. CLASSIFICATION OF PROPERTY


2
Chapter 1. Immovable Property
5
Chapter 2. Movable Property
9
Chapter 3. Property in Relation to the Person to Whom
it Belongs
11
TITLE
OWNERSHIP
20
Chapter 1. Ownership in General
.:._________________ 20
Chapter 2. Right of Accession
34
Section 1. Right of Accession with Respect to what is
Produced by Property
35
Section 2. Right of Accession with Respect to Immovable Property
--------------- 38
Section 3. Right of Accession with Respect to Movable
Property
55
Chapter 3. Quieting. of Title
61
Chapter 4. Ruinous Buildings and Trees in Danger of
Falling
,..------------------------ 65
TITLE III. CO-OWNERSHIP
66

BOOK n.-PROPERTY, OWNERSHIP AND ITS


MODIFICATIONS

TABLE OF CONTENTS

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4. Easement of Party Wall

5; Easement of Light and View

175
179
184

iv

TITLE I. OCCUPATION TITLE II. INTELLECTUAL CREATION


~
TITLE III. DONATION --Chapter 1. Nature of Donations
Chapter 2. Persons Who M~y 'Give a or Receive a Do~atk.n_
Chapter 3. Effect of Donations and Limitations Thereon __
Chapter 4. Revocation and RQduction of Donations

BOOK II~.-DIFFERENT MODES OF ACQUIRING


QWNERSHIP
212
217
224
224
239
246
251

6. Drainage of Buildings
~
7.. Intermediate Distances and Works for Certain Constructions and Plantings
.
186
Section 8. Lateral and Subjacent Support ~
~
188
Chapter 3. Voluntary Easements
.
189
TITLE VIII. NUISANCE --201
TITLE IX. REGISTRY OF PROPERTY
207

Section
Section
Section
Section

Page
TITLE VII. EASEMENTS OR SERVITUDES
149
Chapter 1. Easements in General
149
Section 1. Different Kinds of Easements
151
Section 2. Modes of Acquiring Easements
155
Section 3. Rights and Obligations of the Owner of the
Dominant and Servient Estates
158
Section 4. Modes of Extinguishment of Easements
161
Chapter 2. Legal Easements
164
Section 1. General Provisions
164
Section 2. Easements relating to Wateis _~_~
16'5
Section 3. Easement of Right of Way
.
.
,_ 170

CONTENTS

Ante-Refer to prec@ding pages


ALR-Amel'ican Law Reports
Am. Jur.-American Jurispl;udence
Ann. Cas,-Annotated Cases
Aubry et Rau~Droit Civil
B ~rassi-Diritto Civile
Bonet-Derecho Civil .
CA-Court of Appeals
C.A . or Com. Act-Commonwealth Act
Cal.-Califor~ia Reports
Ca~puzano-Derecho Hipotecario
Cass.C o u r de Cassation, France (French Supreme Court)
Castan-Derecho Civil Espanol
Colin y Capitant-Curso Elemental de Derecho Civil (Sp. tI'.)
Colmar-Colmar District Court (France)
De Buen-Curso Elemental de Derecho Civil
.
De Diego-Instituciones de Derecho Civil Espanol
Ennecerus----.Ber~cho Civil Aleman ~Sp. tr. by Perez-Alguer)
e.g."exempli gratia": for instance
.
et seq.-uand succeeding matter"
Falcon--Derecho Civil Espanol, Comun y Foral
f. e. or f. ex.-for example
France, Requetes-Chambre des Requetes, (Chamber of Petitions)
French Supreme Court)
Ga,-Georgia Reports
Goyena-Concordancias y Comentarios al Codigo de 1851.
i. e.-uid est": that is
. Infra-Refer to succeeding citation or pages
LRA-Lawyers' Reports Annotated
L... Ed.-Lawyers' Edition
La.Louisiana Reports
Laurent-Principes de Droit Civil
Manresa~Comentarios al Codigo Civil Espanol
Mem. Code Comm.-Memorandum, Code CommIssion
N.Y.-New York Reports
Naval,ro Amandi-Cuestionario del Codigo Civil
O.G.-Official Gazette
par.-pa,ragraph
Perez-AIguer-See Enneccerus
Phil.-Philippine Reports

AND ABBREVIATIONS USED

KI~Y TO S,OME REFERENCI~S ,~.~

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vi

ProsserTorts
q.v.as was previously seen; or, please 'r efer
R.A: or Rep. ActRepublic Act
Ramponi-Il diritto di ritenzione (the right of retention)
Res. DRG or Res. Dir. Gen. de 'Registros-Resolucion del Director
General de Registros (Spain)
Royo-VilanovaDerecho Administrativo
RuleRules of Court
Salmond-Jurisprudence
Sanchez Roman-Estudios de Derecho Civil
Savigny-System of Roman Law
ScaevolaCodigo Civil Comentado y Concordado
Sec.-Section '
SedanDistrict Court of Sedan (France)
So.Southern Reporter
StolfiDiritto Civile
supraRefer to previous citation
TS"T'ribunal Supremo"': Decision of the Supreme Court of Spain
U.S.United States Reports
ValverdeEstudios de Derecho Civil
V."Vide": See or refer to
VifiasMeyLa Prenda Irl"egular, Rev. Der. P nv.
. 1925.
viz.namely
'W olfDerecho Civil Aleman' also in Enneccerus (supra) Vol. tIl
YheringLa Posesi6n
' .

I '

object; which is an entity (corporeal ,or incorporeal)


outside of the subject that holds the right. There can
be no rights over the subject's own person. Generally
the objects are called things (cosas) or p r o p e r t y (bienes), defined as "any physical and real, or juridical and
legal, entity capable of becoming the subject matter, or
cbjective terminus, of a juridical relation." . (Sanchez
Roman).
A. However, the Code in general uses "thing" and
"property" as synonymous (Manresa.) .
B. Property distinguished from patrimony: "Patrimony"
refers to the whole mass of active and passive rights
(or obligations) capable of pecuniary estimation that
pertain to a person.
II. Requisites: For a thing (cosa) to become property
(bien) it must have:
A. Utility, i.e. ability to serve as a means to satisfy human needs. It may have a value purely economic or
only moral.
B. Substantivity, i.e. separate and autonomous existence.
Hence, the teeth and the hair while attached to the
person are not property.
a. Artificial limbs are not property while in use.
b. A corpse is not property (See Vol. I, p. 68 et seq.
of this outline) .
. C. Susceptibility to' appropriation, even if not yet actually appropriated, as in res nullius Hence objects
beyond human control. are things in law, but not
property (space, right, res communes).

1. Concept: Every right is exercised over or refers to an

(OBJECT OF RIGHTS)

PROPERTY

BOOK II
PROPERTY, OWNERSHIP AND ITS'
MODIFICATIONS

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.;.~.:

..

I.

415, Nos. 1, 8).


2) By incorporation (must be substantial and
not provisional) (Art. 415, Nos. 2, 3, 7) "
3) By destination: (Art. 415, Nos. 4, 5, 6, 9).
4) By analogy: Administrative contracts for
public works, real rights o n immovables.
(Art. 415, No. 10).
\ b. Movables (personal property, personalty).
1) By nature: (Art. 416).
2) By analogy: (Art. 417).
c. Movables a,re subdivided into:
1) i) Fungiblesreplaceable by equal quantity
and quality, either by nature or by agreement.
'
aa) "Fungible goods" means goods o f
which any unit is, from its nature
or by- mercantile custom, treated as
the equivalent of any other unit
(Sec. 58, Warehouse Receipts Ad).
ii) Non-fungiblesirreplaceable by ' equal
quantity and quality.
2) i) Consumables: movables that can not be
used in a manner appropriate to their na'ture without being consumed (with loss
of substance in amounts appreciable by
the naked eye).

Classification
A. By their transportability.
a. Immovables (usually held synonymous with realty, real property) (Art. 415).
1) By nature: that by their intrinsic quality
have no utllity except in a fixed place: (Art.

PRELIMINARY PROVISIONS

Title I.CLASSIFICATION OF PROPERTY

poreal things.

2) Credits.
3) Real rights, other than ownership over cor-

Includes:
1) Rights over incorporeal things.

corporeal things.
b. Incorporeal: things having abstract (ideal) existence, created by man and representing value.

C. By their physical existence:


a. C o r p o r e a l all property the existence of which
can be determined by the senses: res qui tangi
possunt. This includes rights of ownership of

Catholics, see Codex Juris Canonici.) See p. 15.

or defense.
2) Of Municipalities and Provinces-Id.
3) Of Private Persons:
i) Individual.
ii) Collective.
c. Church and Religious P roperty These are not
provided for by the Code. ,They are governed by
,the rules of each ' religious organization. (For

424).
b. Private Prop erty:
1) Of the State: all not included in Art. 420 and
those no longer used for public use, service

B. By Ownership
a. Property of the Public Domain (outside the comNote: In Common Law, "pubmerce of man).
lic domain"- refers to disposable lands.
1) Of the State (Art. 430).
2) Of Provinces, Cities and Municipalities (Art. '

will of man.

ii) Non-Consumables: can be used without


being consumed.
Note: Consumability is inherent in 't hings; unlike fungibility, it can not be conferred by agreement or the

OUTLINE OF PHILIPPINE CIVIL LAW

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Movable~ and ImmovaI. Differences in Regime , between


~le~.
,
A. Solemnity is greater in acts relative to immovables
(viz. donations, Arts. 748, 749).

which are or may be the


obJect of approprIatIOn are considered either:
( 1) Immovab.le or real property; or
(2) Movable or personal property. (333)

~RTICLE 414. A~l ~lfings

b.

-Consumability should not be confused with


fungibility. Fungibility is a juridical quality
and can be conferred by agreement. Con
sumability depends on the nature of things
themselves. Ante, p. 2.
1) Deterimrablethose that deteriorate through
use or by time.
2) Non-deteriorable-those that do not dete-,
riorate.

2) Non-consumable:

ing to their nature without being, consumed


(Art. 418) ; food, pencils, etc.

E. By their subsistenct in use:


a. 1) Consumable: which can not be used accord-

D. By their autonomy.
a. Principal.
b. Accessory (destined to complete enhance or
ornament another property).
1) What is not deemed an accessory: Any sale,
legacy or donation, of movables 'or immovables, with what is therein contained, does not
include coins, securities, c1'edits and shares
the aeeds 'to which are found in the thing
conveyed, unless the will (intention) to extend the conveyance to them should clearly
appear (Art. 426L

OUTLINE OF PHILIPPINE CIVIL LAW

ART. 415. The following are immovable property:


( 1) Land, buildings, roads and constructions of
all kinds adhered to the soil;
(2) Trees, plants, and growing fruits, while they
are attached to the land or form an integral part of
, an immovable:
(3) Everything attached to ,an immovable in a
fixed manner, in such a way that it cannot be sen3rated therefrom without breaking the material or
deterioration of the obj~ct;
,
( 4) Statues, reliefs, paintings or other objects
for uS,e or ornamentation, placed in buildings or on
lands by the owner of the immovable in such a
m ' ner that it reveals the intention to attach them
permanently to the tenements;
(5) Machinery, receptacles, instruments or
plements intended by the owner of the tenement
for an industr y or works which may be carried on
in a building or on a piece of land" and which tend
directly to meet the needs of the said industry or
works;

IMMOVABLE PROPERTY

CHAPTER I

D. Capacity to alienate: 'g reater capacity is usually required for immovabl~s (f.e. see Art. 399).
E. As to !o1'eignel's: Movables follow the owner' immo'
vables are governed by lex 1'ei sitae,
F. Venue is usually determined by the location of the
immovable (Sec. 3, Rule 5).

movables (f.e. in double sale, Art. 1544). As to movables, possession is equivalent to title (Art. 559).

B. Adverse possession is longer for immovables (Art.


1132, 1134).
C. Publicity and R ecording are more important for im

OUTLINE ' OF PHILIPPINE CIVIL LAW

'-.

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ly, the sale involves movable propert.y, Le. the materials (Laurent, citing the French Supreme Court).
B. Buildings are really immovables by incorporatior..
Hence their adherence to the land must be perma .
nent (n t provisional) and substantial. Portable
.structures are not immovables (Res. Dir. Gen. de Registros (Spain) 7 Aug. 1863).
a. "Adherence" may be direct or indirect. In French
and Italian law it means "supported ~y pillar or
column". Modern interpretations tend toward
broader tests requiring only permanence and
substantial attachment (Manresa).
C. The nature of a building as realty is independent of
the way the parties deal with it. A chattel mortgage
of a building, without the land, does not affect it
(Leung Yee vs. Strong Mach. Co. 37 Phil. 644), but

1. Paragraph 1 (Land, Buildings and Constructions).


A. Where a building is sold to be demolished immediate-

(6) Animal houses, pigeon-hcuses, beehives, fish


ponds 01' breeding places of similal' nature, in case
their owner has placed them or preserves them with
the intention to have them permanently attached to
the land, and forming a permanent part of it; the
animals in these places are included;
(7) Fertilizer actually used on a piece of land:
(8) Mines, quarries, and slag dumps, while the
matter thereof forms part of the hed, andwater3
either running or stagnant;
(9) Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on ariver, lake, Or coast;
(10) Cont.racts for public works, aHa servitudes
and other real rights over immovable property.
(334a)

OUTLINE OF PHILIPPINE CIVIL LAW

it is not for the Register of Deeds to raise the question, his duties being purely ministerial (Standard
Oil Co. vs. Jaramillo, 44 Phil. 630).
a. A house covered by a chattel mortgage cannot be
sold extrajudicially under Act No. 3135 which
covers only real e's tate mortgages. (Luna vs. Encarnacion 48 O.G. 2664).
.
D. A building is an immovable even if not erected by the
owner of the land. The only criterion is union or
incorporation with the soil.
(Ladera vs. Hodges
(CA) 48 O.G. 4374). Even if mortgaged as a cnattel, it is real property for pUrJ~oses of Rule 39, Sec. 16,
on execution sales (Manalang vs. Ofilada, L-8133,
May 18, 1956).
II. Paragraph 2-(Trees and Plants).
A. When trees are cut or uprooted, incorporation ceases
and they become movables; timber cut is still integral part of an immovable property when it constitutes the natural product of the latter.
B. Growing crops 'are movables for purposes of the Chattel Mortgage Law (Act 1508, Sec. 7).
C. For purposes of attachment: growing crops are to be
attached in the same manner as realty (Rule 59,
Sec. 7).
Ill. Paragraph 3-(Things Incorporated).
A. The breakage or injury in case of separation must
be substantial.
B. In the case of immovables by incorporation the Code
nowhere requires that the attach~ent be made by the
owner of the land. (Ladera vs. Hodges (CA) 48
O.G. 5374).
C. Wells, sewers, aqu uets and railw~ys fall under this
, number (Manresa).
IV. Paragraph 4-(Fixtures and Ornaments).
A. Requisites:
.
a. Placed by the owner or by a tenant as agent of
the owner (Valdez vs. Altagracia, 225 U.S. 58).

OUTLINE OF PHILIPPINE CIVIL LAW

""

...

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VIII. Paragraph 8-(Mineral Deposits and Waters).


A. As to whether waters are public or private. see Arts.
407, 408~

VII. Paragraph 7-(Fertilizer).


A. "Actually used" means that it. has been spread over
the~~.
'

A. Requisites:
a. Placed by the owner, or by a tenant as agent of
the owner, with the intention of permanent attachment.
b. Forming a permanent part of the immovable.

V. Paragraph 5-(Machinery and Equipment).


A. Requisites:
a. Placed by the owner (or a tenant as agent of tho
owner) (Davao Saw Mill vs. Castillo, supra).
b. Adapted to the needs of the industry or work
carried on.
B. Thus, new machinery placed in a mortgaged central,
to replace old machinery, becomes subject to the
prior real estate mortgage (Berkenkotter vs. Cu Unjieng, 61 Phil. 633).
C. This number includes furniture and equipment, but
not work animals (Manresa, Sanchez Roman).
VI. Paragra.ph 6-(Animal Houses and Animals therein).

b. With the intention of attaching them pe1'rr~anent


ly, even if adherence will not involve breakage
or injury. Thus, niches for statues indicate an
intention of pernlanent attachment.
B. Where the improvements or ornaments placed by the
lessee are not to pass to the owner at the expiration
of the lease, they remain movables for chattel mortgage purposes (Davao Saw Mill vs. Castillo, 61 Phil.
709).

OUTLINE OF PHILIPPINE CIVIL LAW

ART. 416. The following things are deemed to be


personal property:
(1) Those movables susceptihle of appropriation
which are not included in the preceding article.;
(2) Real property which by any special provision
of law is considered as personalty;
(3) Forces of nature which are brought under
control by science.; and
(4 ) In general, all things which can be transported from place to place without impairment of
the real property to which they are fixed. (335a)

MOVABLE PROPERTY

CHAPTER 2

IX. Paragraph 9- (Do.cks and Fixed Floating Structures).


A. But ~: ess e ls partake to a certain extent of the nature
and conditions of real property (Rubiso vs. Rivera, 37
Phil. 72) as to formalities for valid transfer and period of adverse possession.
B. However, vessels are considered personal property
under the civil law (Art. 585, Code of Commerce) as
well as under the common law, although occasionally
referred to as a. peculiar kind of personal property.
(Phil. Refining Co., Inc vs. Jarque, 61 Phil. 229)
Thus, a mortgage of a vessel is in the nature of a
chattel mortgage (McMicking' vs. Banco Espanol Filipino, 13 Phil. 429), with the difference that instead of the document being noted in the Register of
:Deeds, the same should be entered in the record of the
Collector of Customs of the port of entry. (Arroyo
vs. Yu de Sane, 54 Phil. 7).
X. Paragraph 10-(Realty by analcgy).
A. See the discussion on "Property Rights in General"
(infra, p. 16 et seq.) .

OUTLINE OF PHILIPPINE CIVIL LAW

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10

or non-consumable. To the first class belong those


movables which cannot be used in a manner appropriate to their nature without their being consumed;
to the second class belong all the others. 3 7 7

_ART. 418. Movable property is either consumable

I. Interest in business is personal property (Strcchecker vs.


Ramirez 44 Phil. 933).

ART. 417. The following are also considered as


personal property;
(1) Obligations and actions which have for their
object movables or demandable sums; and
~2) Shal'es of stock of agricultural, commercial
and industrial entities, although they may have real
estate . . (336a)

III. Examples under No. 3A. Gas and electricity are movables.
(U.S. vs. Carlos, 21 Phil. 553).
(U.S. vs. Tambunting, 41 Phil. 363).

II. Examples under No. 2-A. Growing crops--under the Chattel Mortgage Law.
B. Machinery installed by a lessee (not acting as agent
of the owner).

I. Tests given by the Code:


A. By exclusion: Movables are everything not included
in Art. 415;
B. By description: An object is movable if it possessesa. Ability to change location;
b. Without substantial injury to the immovable to
which it is attached.
1) Test B is subordinate to test A.

OUTLINE OF PHILIPPINE CIVIL LAW

3a

A. Inalienable (Cavite vs. Rojas, 30 Phil. 602). But


when no longer needed for public use or defense,
such may be declared private property and disposed
of (Mun. of Oas vs. Roa, 7 Phil. 20; Mun. of Hinunangan vs. Dir. ofLands, 24 Phil. 124).
B. Not acqui1'ed by adverse possession: "Nullum tempus occurrit regi" (time runs not against the sovereign) (Harty vs. Victoria, 13 Phil. 152; Manila ~s.
Insular Gov't., 10 Phil. 327).
C. Not subiect to attachment 01' execution (Tan Toco vs.
Mun. Council of Iloilo, 49 Phil. 52).

11

ART. 420. ThE; following things are property oJ


public dominion;
~ ,
(1.) those intended for public use, such as road's,
canals, rivers, torrents, ports and bridges constructed by the Sta,te, banks, shores, roadsteads, and
others of similar character;
(2) Those which belong to the ~tate, 'without
being for public Use, and are intended for some
public service or for the development of the national wealth. (339a)

II. The character of public property is not affected by possession or even a Torrens Title in favor of private .persons (Palanca vs. Commonwealth, 69 Phil. 449).

I. -Property of ' public dominion is held in trust for the


interest of the community. Hence, such property is said '
to have the following characteristics:

ART. 419. Property is either of public c1ominio~l


or of private ownership. (338)
.

PROPERTY IN RELATION TO THE PERSON


TO WHOM IT BELONGS

CHAPTER

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II. ExamplesA. Friar lands (Jacinto vs. Director of Lands, 49 Phil.


853).
;
B. ' Mangrove lands ~md ' mangrove swamps (Comm. of ,
the Phil. vs. Gungun,70 Phil. 194),.
.
.
C. ,E scheated propertie~ and commercial buildings (Manr.esa) .
III. This kind of property is not acquirable by ' adverse
. possession except as ailowed by law (See Art. 1108,
No.4,)
12

I. The State has the same ri~hts over this kind of property
as a private individual in relation to his own pr.ivate
property. This kind of propertyA. Enables the State to attain ih: economic ends.
B. Serves as a means for the state's subsistence and pre. servation.
C. Enables the State to fulfill its primary mission
(Manresa).

ART. 421. 'All other property of the State, which


is not of the character stated in the preceding article, is patrimonial property. (340a)

A. Property for public use may be u s e d by anyone indiscriminately.


' B. Property for pub~ic serv:ic~ may be used only by au, thorized persons.

III. Distinction-

1. "Shores'" refer to land covered and uncovered by tidesalthough it be originally private land. (Gov't. vs. Caba~
ngis. 53 Phil. 112).
II. Examples of No.2 (for public service or development
of national 'wealth).
A. Fortresses, unleased mines, a~d civil buildings (Royo' Vilanova).
B. Armed forces equipment, not declared surplus.

OUTLINE OF PHILIPPINE CIVIL LAW

13

ART. 423., The property of provinces, cities, and


municipalities is divided into property for publi~
use and patrimonial property. (343)
ART. 424. Property for public use, in the provinces, cities, and municipalities, consist of the provincial roads, city streets, municipal streets, the
squares, fountains, public waters, promenades and
public works for public service paid for by said
provinces, cities, or municipaJities.

A. Interpreting the provision of.' Art. 4, Spanish Law ,o f


W aters, our Supreme Court has ruled-"We believe
that only the Executive and possibly the Legislative
Departments have the authority and the power to
make the declaration that any land so gained by the
sea, is not necessary for purposes of public utility,
or for the establishment of special industries, or
for coast guard ' services." (Natividad vs. Director
of Lands, 37. a.G. 2906).

II.' Under Art. 4 of the Spanish Law of Waters of A.~g., 3,


1866-"When lands are ad~ed to the shores by accreti<ms
and alluvial deposits caused by the action of the sea and
are not necessary for purposes of public utility, or for the
establishment of special industries, or for the , coastguard service, th~ GQvernment shall declare them to be
property of the owners of the estates adjacent thereto
and. as increment thereof."

1. Fortresses no longer used as such are .deemed to have


become patrimonial property of the State (Municipality
of Hinunangan vs. pirector of Lands, 24 Phil. 124).

ART. 422. Property of public dominion, when no


,longer intended for public use or for pu:blic service,
shall form part of the patrimonial property Qf the
State. (341a)
,

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14

necessities (Bonet).
, F. A p~b}.ic square, on which buildings a r e constructed
for storage purposes and for use as quarters for
"c~adrilleros", is thereby c0nverted into patrimonial
property of the "pueblo" (Municipality of Oas vs.
Roa" 7 Phil. 20).
G. The mere attempt by the municipal authorities to
sell to pr.ivat~ persons a parcel of land used as a
school 'site, with the idea of acquiring a more suitable
property, does not have the effect of converting it
into patrimonialpr0perty of the municip~lity CMuni~
cipality of Batangas vs. Cantos, et al. G.R. No. L4012, June .3 0 , 1952).

I. ~ulings and comments- "


A. The enumerations in par. 1 are not limitative.
B~ Beds ' of navigabie streams a r e included (Mercado
vs. ,Macabebe, 59 P h i l . 592).
C. A public s q u a r e or plaza may not be reg'istered as
municipal property (Director of Lands vs: Bishop of
~amboanga, 61 Phil. 644) nor leased to private parties (Cavite vs. Rojas, 30 Phil. 602).
D., The "right of usufruct which a, municipal'i ty has ove~
fisheries (Municipality of Paoay VR. Manaois, G.R.
N o . L - 3 4 8 5 , June ,30, 1950) as well as the franchise
for th~ exploitation of a public market (T~lfexis vs.
Olaguera, 32 Phil. 654) may not be attached, but the
rents, income or benefit acquire~ from them may be
attached and levied -upon.
,
E. The province or' municipality, as a juridical e,n tity,
possesses priv.ate property to answer for its economic

All other property posse~sed by any of them is


patdmonial and shall be governed by this Code.
without prejudice t o the liroVl~ionf, of special laws.
'(344a)

OUTLINE 0F PHILIPPINE CIVIL LAW


.'

425 Property of private ownership, besides

15
J

~RT.. ~26. Whenever. 'by p~'ovision of the law, or


an individual declaration, the expl"'es~ion -"immovable things or ' prop~rty ," or "movable things o r
property, IS used, It shall be deemed to include
resp~ctively, the ,thing~ enumerated in Chapter J:
and i n Chapter 2. '
,
',
. Whenever th~ word "muebles," o r "furniture."
i s used alon~. It ' shall not be deemed to include
money, ~redIts, commercial securitie~, stocks,. and
bonds, Jewelry, scientific or artistic col1ec.tions,
books medals arms, clothing, horses or carriage~
a~d thelraccesso~les, grains, liquids an.d merchandIse, or other ' thmgs which do not have as their
prin~it;::lJ ,object the furnishing or ornamenting of
a building, except where from the context of the
law, o r the individual declaration, the contrary
clearly ap'pears. (346a)
"
.

PROVISIONS C0~MON TO .THE THREE


PRECEDING CHAPTERS

'

I. Peculiar na,tu~'e of ecclesiastical pro,perties: Churches,


strictly speaking are neither p u b l i c nor private ' prop' erty: They constitute a special kind 0f property devoted
.
to religious worship-and, as such, are outside' the commerce of ,m an. (Barlin vs. Ramirez, 7 Phil. .41).
I I . Fpr the history of the gra1nts of the Spanish Crown to
the Church, v.: Catholic Church vs. Mu~,. off~ace.r, 11
Phil . 315; Catholic' Church vs. Mun. of Ca1oocan, 12, Phil.
639; Mun. of Nueva Caceres vs. Dir. of Lan.ds, 24 . Phil. "
485; Dir. of Lands vs. Bishop of Zamboa~!5a, 9:nt~" p. 14.

patrimonial property of the State, provinces. cities,


and municipalities,' consists of all property belonging to private persons, either individually or col-,
lectively. (345a)
,

ART.

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'~.'

'. .'

OUTLINE OF PHILIPPINE CIVIL LAW

PROPERTY RIGHTS IN GENERAL

I. Classes: Real and Personal.


While there are rights between persons only, (since only.persons can be active
or passive subjects in juridical relations), there are
rights which refer to objects possessing a value that can
be expressed in terms of money. These rights may be
either absolute (erga omnes) or relative. The first are
termed real rights; the second 'personal rights.
A. Real Rights (Jus in re).
a. Definitions: A real right is one that confers upon
its holder an autonomous power to derive directly from an appropriate thing certain economic
advantages, independently of whoever should be
the possessor of the thing. (De Buen).
A personal right (jus in personam) is the power
belonging to one person to demand of another as
definite passive subject the fulfillment of a
prestation to give, to do, or not to do. (Sanchez
Roman).
(The mediaeval glossatores created an intermediate category, called jus ad rem, which is th.
right to obtain. delivery of a thing as preliminary to the creation of a jus in re tnereon,
This class is questioned by modern civilists).

b. Charactersistics:
1) The holder must be able to act directly upon
the thing by himself. In usufruct, the usufructuary enforces his right to the fruits by
harvesting them himself, and restraining directly those interfering with his rights.
In personal rights the holder must enforce
his rights thr ough another's action. Thus,
the lessee can not proceed against an intruder in his own right but must ask the lessor to quiet possession. The enforcement is
. 16

OUTLINE OF PHILIPPINE CIVIL LAW

through the lessor. A buyer can not seize the


thing sold ; he must require delivery from
the vendor,
I
2) The content of the real right is enforceable
against any possessor of the thing subject to
the real right: the latter, therefore, is absolute, enforceable " ergo omnes", against all
other persons. The French doctrine speaks
of this feature as a "right of pursuit" (droit
de suite). In personal rights, only the one
individually obligated as ail obligor can be
required to respect the right by discharging
the correlative duty,
In personal rights third persons are also
required to abstain f rom interfering with
the relations between obligor and obligeecreditor and debtor, But this duty is independent of the specific duty o'wed, and has
nothing to do with the content of the personal right,
c. Classical distinction between real and personal
rights:
1) A real right is exercised directly over a thing;
a personal right is exercised through another
person (Falcon),
2) A real right has a specific object or item of
property; but a personal right affects all
present and future property of the debtor
(Cf. Arts. 1911, 2236),
3) A real right follows its object in the hands
of any possessor; a personal right is not enforceable against a transferee without notitle (Castan).
4) A real right is limited by the value of the
object or its productivity; a personal right is
not so limited,

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5) A real right is extinguished by the destruction of the ' object. Personal rights survive
destruction (Sanchez Roman).
d. Classes of Real Rights:
1) Of Full control:
i) Ownership.
ii) Possession.
2) Of Enjoyment:
i) Usufruct.
ii) Servitudes.
iii) Lease record
(Most commentators
doubt whether this is truly a real right).

express provision of law; it becomes avasi-real


iIi effects if recorded.
f . Real Rights under the Civil Code of 1889 eliminated in the Civil Code of the Philippines:
1) Use and Habitation
(old Code, Arts: 523529) .
2) Censo (ground rents) in all its forms: em-.
phyteutic, consignative and reservative
(old Code, Arts. 1604 to 1664).
Reason given for their elimination: "No contracts or wills in the Philippines refer to
censos or use and habitation" (Mem.,. Code
Comm. part I, E).

3) Of Guaranty:

i) . Mortgage:

ii) Pledge.
iii) Antichresis.

iv) Retention (differs from the common law


"lien" in that retention requires the possession of the thing or else the right is
lost) .
4) Of Acquisition:
i) Preemption (Its nature as a real right
is also disputed).
ii) Redemption.

e. Number of 'real rights:


It is a most debated question whether the real
rights in civil law are limited in number (numerus clausus) or not (numerus pertus) . Strictly
speaking, provided the characteristics (of direct
action and exclusion of all other persons) are present, a right may be real, even if innominate.
The mere' fact of recording, however, even if it
serves as a notice against the whole world, will
not convert a right, by nature personal, into a
real right. Lease is an exception, but thr.ough

18

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may be two or more real rights of different content


(VIZ;. usufruct and mortgage) . There may be two or
more owners (condominium) but only one ownerm~re'
ship.
D. Its independence: It exists without necessity of any
other right. Other real rights presuppose the existence of ownership (Valverde).
E. Perpetuity: It cannot be extinguished by non-user,
but only by adverse possession when ownership is
transferred to another. Ownership lasts as long as
the thing exists.

Title II.OWNERSHIP
CHAPTER I

OWNERSHIP IN GENERAL

A T. 427. Ownership may be exercised. over things


or rights. (n)
1. Definition and Concept:
A. Ownership is the right to enjoy, dispose and recover
a thing without further limitations than those established by' iaw or the will of t h e owner (TS Jan.
22, 1944).
B. Ownership is the independent right of exclusive enjoyment and control o f a thing for the purpose of deriving therefrom all advantages required by the
reasonable needs of the owner (holder of the right)
and the promotion of the general welfare, but subject to the restrictions imposed by law and the rights

III. Forms of Ownership (Castan):

of others .

II. Characteristics of Ownership:


A. Ownership is elastic, in the sense that any power or
number of powers can be detached therefrom and
its content reduced accordingly, but upon cessation of
the limiting rights, it recovers the powers lost, immediately and automatically, without necessity of any
juridical act or conveyance, whether the owner is
competent or incompetent.
B. Its generality: It is a right to make use of all the
possibilities or utility of a thing, except those.attached
to other real rights existing thereon. Other real
rights are special, involving specified or determinate
advantages or services derived from the object.
C. Exclusiveness: There can only be one ownership over
a thing a.t a time. while over the same thing there

20

A. By the s u b j e c t
1) Public.
2) Private.
i) Individual.
ii) Collective.
B. By the o b j e c t
1) Over movables.
2) Over immovables.
C. By the juridical relationr1) Full.
2) Less full:
i) Divided--where there are many owners
(coownership) or where control resides
in one person, and benefits go to another (legal and equitable title).
ii) Encumbered-aa) Materially-affecting its enjoyment, e.g. by easement.
ab) Formally-affecting its disposition, e.g. by mortgage.

IV. Property and Ownership distinguished:


A. Property is the economic term.
B. Ownership (dominio) is the technical juridical term.
Both terms refer to the same right.

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428. The owner has the right to enjoy and


dispose of a thing, without other limitations than
those established by law.
The owner has also a right of action against the
holder and possessor of the thing in order to recover it. (348a)
ART.

I. Ownership is independent of the various powers that


compose it. In general, these a r e :
A. The power (faculty) to enjoy.
.a. To possess (jus possidendi).
b. To the fruits (jus fruendi) and accessions.
c. To use (jus utendi).
.
d. To abuse (in the sense of use that cO,nsumes the
thing itself) (jus abutendi) . .
B. The Power to dispose.
a. Alienation.
b. Encumbrance.
c. Transformation.
d. Destruction.
C. The power to vindicate.
a. Pursuit.
b. Recovery (Art. 434).
D. The power to exclude.
a. To enclose, fence and delimit (Art. 429).
b. To repel intrusions even with force (Art. 430).
IL Ownership is not a mere sum of these powers, for any
number of them can be detached without altering its
essence. Potentially, at least, ownership is the most
ample power of domination (senorio) that can be had
over a thing (Wolff).

III. Limitations of Ownership:


A. Inherent limitations to its exercise:
"The law does not protect anti-social acts, such as;
those that do not benefit the one doing them and yet
injure those against whom they ,are directed" (Stolfi,
22

Dir. Civile). In France, the erection of false structures solely to deprive a ,neighbor of views (Colmar,
May 2, 1855) or to erect an unnecessary covering,
painted in black, to darken the neighbor's house (Sedan, Dec. 17, 1907) have been declared abusive exercises of the right of ownership. This is the meaning of the maxims "sic utere tuo ut alienum non laedas" and "alterum non laedit qui jure suo utitur".
(See Art. 431) . See Vol. I, pp. 29-30, (Liniitations to
the Exercise of Rights).
B. Limitations to the right of excluding others:
a. Everyone is bound to bear the habitual inconveniences that result f r o m the proxi mity of
others, and so long as this limit is not passed,
. he may not complain. But, on the other hand,
if the damage exceeds the trouble that such proximity habitually brings, the neighbor who causes
such disturbance is held responsible (France, Requetes, 5 Dec. 19Q4; Cass. 19 April, 1905; 24
July, 1908). Excess constitutes nuisance (q.v.).
b. Duty to permit entry.
1) The, owner of a thing has no right to prohibit t h e interferen,ce of another with the same,
if the interference is necessary to avert au
imminent danger and the threatened damage, compared to the damage arising to the
owner from the interference, is much greater. The owner may demand from the person benefited indemnity for the damage to
him (Art. 432). (Compare this rule wit.h
the requisites of self defense).
2) The owner of a swarm of bees shall have a
right to pursue them to another's land, indemnifying the possessor of the latter for
the damage. If the owner has not pursued the swarm, or ceases to do s,o within
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two consecutive days, the possessor of the


land may occupy or retain the same.
The owner of domesticated animals may
also claim them within twenty days to be
counted from their occupation by another
person. This period having expired, they
shall pertain to him who has caught and kept
them. (Art. 716).
'
c. Estoppel arises from failure to assert the right of
exclusion (De Inchausti vs. MRR Co. 36 Phil.
908).
d. Extrajudicial abatement of nuisances may be
made by private 'persons (Arts. 704, 706).
C. Limitations by law on behalf of common welfare:
a. By reason of public utility (Eminent Domain)
upon payment of just compensation. (Phil. Constitution, Art. II, Sec. 1 (2); Art. XIII, Sees. 3,
4 and 6).
b. By the Police Power and General Welfare clauses
(Arts. 638, 694, 707).
c. By the Taxing Power.
d. For the purpose of conservation of natural resources (Art. XIII, Secs. 1 and 5 Phil. Const.; Krivenko vs. Reg. of Deeds, 44 O.G. 471).
e. For maintaining social stability: Art. XIII, Sees.
3 and 4, Const. of the Phil. See note B, p. 30.
D. Limitations for private benefit of neighbors
(relations of neighborhood, "relaciones de vecindad").
Examples:
a. Liability for noisome and excessive smoke, emanations, etc. (Art. 2191).
b. Observance of distances in planting and building (Arts. 677-679).
c. Observance of distances for making openings in
one's own walls (Art. 670).
d. Duty to grant right of way (Art. 649) even without indemnity (Art. 652). '
0

24

e. Duty to receive water naturally descending from


higher level (Art. 637).
f. Duty to drain buildings through one's own properties (Art. 676).
g. Restrictions in the use of party walls (Arts. 644,
666).
h. , Restrictions on Excavations (Arts. 684 to 687).
,E . Limitations imposed by the will of the owner (present or previous) :
a. Provided they are not contrary to the nature of
ownership or forbidden by law encumbrances
servitudes).
b. Pactum de non alienando (Contractual prohibition to dispose).
1) In general such prohibitions to alienate are
valid unless expressly forbidden by law"An example of a case wherein such a prohibition is imposed by law is that contained
in Art. 2139 which provides that a stipulation forbiding the owner from alienating
the immovable mortgaged shall be void.
2) IntervivosThese agreements "are valid as
personal obligations but not as real rights,
because they contradict the liberty 'of , disposition, diminish unnecessarily the landed territorial credit, constitute a doubtful and imperfect guaranty, and invalidate to a certain
extent the provisions of Art. 107, par. 4 of
the Mortgage Law." (Res. Dir. Gen. de Reg.
June 9, 1914 and April 14, 1921). See Bank
of P. 1. vs. Ty Cameo Sobrino (57 Phil. 804).
"However, we do not hesitate to accept the
view above set forth to the effect that an
agreement of such nature, while it does not
nullify the subsequent sale made by the mortoj

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property rights."

gagor, nevertheless operates to authorize the


mortgagee to bring the foreclosure suit
against the mortgagor without the necessity
of either notifying the purchaser or including him as defendant, (See "quaere" below.)
And this holding is in harmony with the
doctrine enunciated by this court in the cases
of Sun Life Assurance Company of Canada
vs. Gonzales Diez (52 Phil. 667) to the effect that .in such case the purchaser of the
mortgaged property does not lose his equitable right of redemption." (De la Paz vs.
Macondray, 66 Phil. 402).
i) Quaere: In view of the new provision
contained in Art. 2130, does the above
,ruling still hold? Or should such prohibition, being void, ,be considered as
not written in the contract?
3) Mortis Causa: These
of fidei-commissary
maximum period of
bility. (Arts. 863 and

are limited by the rules


substitutions and the
20 years for inaliena870).

ART. 429. The owner or lawful possessor of a


thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose,
he may use such force as may be reasonably necessary to. repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his
property. (n)

I. "The second part (Art. 429) embodies the doctrine of

self-help which is found in the German Civil Code, with


the limitation that the owner may use only such force as
may be reasonably necessary. The right to repel or prevent an actual or threatened physical invasion or usurpation of property is essential to the maintenance of
26

(Report of the Code Commission, p.

95) .

II. LimitationsSee ante pp. 22-2G.


ART. 430. Every owner may enclose or fence his
land or tenements bv means of walls, ditches, live
or dead hedges, or by any other means without detriment to servitudes constituted thereon. (388)
1. With regard to live hedges, if they a r e formed with

shrubs and not as partition walls, they must be planted


at a distance of 50 centimeters from the boundary line
of the estates or according to the custom of the 1ocality,
as is provided for by Art. 679 (Manresa).

ART. 431. The owner of a thing cannot,make use


thereof in such manner as to injure the rights of
a third person. (n)
ART. 432. The owner of a thing has no right to
prohibit. the interference of another with the same.
if the interference is necessary to avert an imminent danger and the threateneddamage, compared to
the damage: arising to the owner from the interference, is much gi'eater. The owner may demand
from the person benefited indemnity for the damage to him. (n)

.I. This is sometimes called the doctrine of "incomplete privilege",


II. " In Ploof v. Putman, . . . the Supreme Court of Vermont held that where, under stress of weather, a vessel
was without permission moored to a private dock at an
isla.nd in Lake Champlain owned by the defendant, the
plaintiff was not guilty of t r espass and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore with resultant injuries

27

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B. Proof of identity-which may be shown by a description of its borders. Borders are either
a. Natural-consisting of permanent landmarks,

II. Requisites of Accion Reivindicatoria:


A. The thing must be corporeal, concrete, and determinate (Castan; TS Dec. 20, 1908).

1. The principal effect of accion reivindicatoria is the


restitution of the thing with its accessions. The indemnity by reason of the fruits, expenses, improvements
or damages depend upon diverse circumstances, among
which are the good or bad faith of the possessor. (Castan) .

AR,T. 434. In an action to recover, the property


must be identified, and the plaintiff must rely on
the strength of his title and not on the weakness
of the defendant's claim. (n)

ART. 433. Actual possession under claim of ownership raises a disputable presumption of ownership.
The true owner must resort to judicial process for
the recovery of the property. (n)
.

to it
If, in that case the vessel had been permitted to
remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the
injury done.
"Theologians hold that a starving man, may, without
moral guilt, take what is necessary to sustain life; but
it could hardly be said that the obligation would not be
upon such person to pay the value of the property so
taken when he became able to do so. And so public
necessity, in time of war or peace, may require the taking of private property for .public purposes; but under
our system of jurisprudence compensation must be
made." (Vincent vs. Lake Erie Transp. Co. 109 Minn.
436, 124 N.W. 221). See note, p. 23.

OUTLINE OF PHILIPPINE CIVIL LAW

II. Requisites of Eminent Domain:


A. The power must be exercised by competent authority,
such asa. The national government (Art. III, Sec. 1, par.
2, Phil. Const.).
29

1. Art. III, Sec. 1, Subsec. 2 Philippine Constitution. "(2)


Private property shall not be taken for public use without just compensation." (Ayala de Roxas v. City of
Manila, 9 Phil. 215).

ART. 435. No person shall be deprived of his property except by competent authority and for public
use and always upon payment of just compensation.
Should this requirement be not first complied
with, the courts shall protect and, in a .Droper case,
restore the owner in his possession. (349a)

III. A tax declaration is no proof of cwnership (Cam.


Sur vs. Dir. of Lands, 64 Phil. 600); but unexplained
failure to pay the land tax may indicate non-ownership
(Dadivas vs. Bunayon, 54 Phil. 632).

C. Proof of superior t i t l e - E x a m p l e s of titles sustaining


a claim of ownership are:
a. Torrens Titles (Reyes vs. Borbon, 50 Phil. 791) ;
b. Royal Cedula (Guido vs. De Borja, 12 Phil. 718) ;
c. Titulo de Composicion (Escario vs. Regis, 31 Phil.
619) ;
d. Prescription (Dimaliwat vs. Dimaliwat, 55 Phil.
673).
e. Thirty years possession (Nolan v. Jalandoni, 29
Phil. 292).

such as rivers, lakes, hills and the like (Rosado


vs. Director of Lands, 58 Phil. 833) ; or
b. Artificial-consisting of concrete monuments set
up by the Bureau of Lands on the property of
others (Govt. vs. Abad, 47 Phil. 573).

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B. Proof of identity-which may be shown by a description of its borders. Borders are eithera. Natural-consisting of permanent landmarks,

II. Requisites of Accion Reivindicatoria:


A. The thing must be corporeal, concrete, and determinate (Castan; TS Dec. 20, 1908).

I. The principal effect ' of accion reivindicatoria is the


restitution of the thing with its accessions. The indemnity by reason of the fruits, expenses, improvements
or damages depend upon diverse circumstances, among
which are the good or bad faith of the possessor. (Ca'stan) .

ART. 4~ L1. In an action to recover, the property


must be identified, and the plaintiff must rely on
the strength of. his title and not on the weakness
of the defendant's claim. (n)

ART. 433. Actual possession under claim of ownership raises a disputable presumption of ownership.
The true owner must resor~ to judicial process for
the recovery of the property. (n)

to .it. If, in that case the vessel had been permitted to


remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the
injury done.
"Theologians hold that 8 . starving man, may, without
moral guilt, take what is necessary to sustain life; but
it could hardly be said that the obligation would not be
upon such person to pay the value of the property so
taken when he became able to do so. And so public
necessity, in time of war or peace, may require the taking of private property for public purposes; but under
our system of jurisprudence compensation must be
made." (Vincent vs. Lake Erie Transp. Co. 109 Minn.
436, 124 N.W. 221). See note, p. 23.

OUTLINE OF PHILIPPINE CIVIL LAW

II. Requisites of Eminent Domain:


A. The power must be exercised by competent authority,
such as~
a. The national government (Art. III, Sec. 1, par.
2, Phil. Const.).
29

I. A1t. III, Sec. 1, Subsec. 2 Philippine Constitution. "(2)


Private property shall not be taken for public use without just compensation." (Ayala de Roxas v. City of
Manila, 9 Phil. 215).

ART. 435. No person shall. be deprived,of his property except by competent authority and for public
use and always upon payment of just compensation.
Should this requirement be not first complied
with, the courts shall protect and, in a Droper case,
restore the owner in his possession. (349a)

III. A tax declaration is no proof of cwnership (Cam.


Sur vs. Dir. of Lands, 64 Phil. 600); but unexplained
failure to pay the land tax may indicate non-ownership
(Dadivas vs. Bunayon, 54 Phil. 632).

C. Proof of superior title-Examples of titles sustaining


a claim of ownership are:
a. Torrens Titles (Reyes vs. Borbon, 50 Phil. 791) ;
b. Royal Cedula (Guido vs. De Borja, 12 Phil. 718) ;
c. Titulo de Composicion (Escario vs. Regis, 31 Phil.
619) ;
d. Prescription (Dimaliwat vs. Dimaliwat, 55 Phil.
673).
e. Thirty years' possession (Nolan v. Jalandoni, 29
Phil. 292).
.

such as rivers, lakes, hills and the like (Rosado


vs. Director of Lands, 58 Phil. 833) ; or
b. Artificial-consisting of concrete monuments set
up by the Bureau of Lands on the property of
others (Govt. vs. Abad, 47 Phil. 573).

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C. Upon payment of just compensation. This compensation is determineda. As of the time of "taking" (Prov. Govt. of Rizal ,
vs. Caro, 58 Phil. 308).
b. By taking 'into consideration the "market value"
which is the value that the property will bring
when it is offered for sale by one who desires
but is not obliged to sell it, and is bought by on,
who is under no necesssity of having it, plus the
consequential damages, if any, min us the consequential benefits, if any. (Municipality of Pilar,
Sorsogon, vs. Guamil (CA) 45 a.G. (Supp. No.
5), 205, citing Manila Railroad Co. vs. Fabie,
17 Phil. 206).
c. The power of eminent domain may not be used
as a shield in order to avoid the payment of a just
and valid contractual obligation (Noble vs. City
of Manila, 67 Phil. 1).

B. For public use, (except ' where expressly provided


otherwise by the Constitution: v: Art. XIII, Secs. 3
and 6). an expropriation of landed estates, see Guido vs. Rural Progress Adm., 47 a.G. 1848 and City of
Manila vs. Arellano Law Colleges, 47 a .G. 4197;
also Rep. vs. Baylosis, 51 a.G. 722.

b. The provincial government (Sec. 2106, Rev. Adm,


Code) .
c. The municipal government (Sec. 2245, Rev. Adm.
Code) .
d. Persons or entities engaged in developing and
exploiting mineral resources (Sec. 91, 92, C.A.
No. 237; Art. 21, Rep. Act No. 387; Sec. 13, Act
No. 2719) ; and
e. P~rsons or entities engaged in business affected
with public interest and specifically thus empowered ~nder their charter, such as the Manila
Electric Co. and the Manila Railroad Co.

OUTLINE OF PHILIPPINE CIVIL LAW

31

A. H01izontally, ownership extends up to the boundaries.


B. Ve1tically, it extends below the surface and above it
to the extent required by the economic interest or

1. Extent of ownership of land-

(350a)

ART. 437. , The owner of a parcel of land is the


owner of its surface and of everything under it,
and he can construct thereon any works or make
any plantations and excavations which he may deem
proper, without detriment to servitudes and subject
to special laws and ordinances. He cannot complain
of the reasonable requirements of aerial navigation.

B. The former is always premised upon just compensation; while this is not so in the latter case.

1. This is an exercise of the "Police Power". Here condemnation for health reasons takes the form of what is
known as the "Abatement of Nuisances". (See post., p.
203.)
II. Distinguished from Eminent Domain:
A. In eminent domain, the property is preserved and
\
devoted to public use; in abatement of nuisance, the
property is destroyed in the interest of health, safety
or security.

(n)

ART. 436. When any property is conderimed or


seized by competent authority in the interest. of
health, safety or security, the owner thereof shall
not be entitled to compensation, unless he can show
that such condemnation or seizure is unjustified.

d. Confiscation of private property by the revolutionary government is illegal (Endencia vs. Lualhati,
9 Phil. 177). But enemy property may be sequestered or seized for the duration of the war
(Haw Pia vs. China Bank, 45 aG., Supp. No.9,
p. 229) .

OUTLINE OF PHILIPPINE CIVIL LAW

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34

III. Basic Principles:


A. Accessory foliows principal.
B. There should be no unjust enrichment at another's
expense.
C. Accession exists only if the incorpora.tion is such that
separation would either seriously damage the thing or
diminish its value (Art. .447, second phrase).

II. Classes in the Civil Code:


A. Discreta: by internal forces (fruits).
B. Continua: by external forces (building, alluvium,
etc.) .
a. Natural-By the forces of nature.
b. Artifi~ial-By the work of man.

I. Concept: Accession is the extension of ownership over a


thing to wha.tever is incorporated thereto naturally or
artificially (without or with labor of man).
A. Incorporation means a stable union or adherence, not
mere juxtaposition.
B. Accession is one of the rights of ownership and is not
a mode of acquiring property. (Manresa)".
a. Reasons1) It is a mere consequence of ownership.
2) The accessory loses its individuality when
united with 'the principal.
3) It does not depend upon a new title (Castan).

right by accession to everything which is produced


thereby, or which is incorporated or attached thereto, either naturally 01' artificially. (353)

ART. ' 440. The ownership of property gives the

GENERAL PROVISIONS

RIGHT OF ACCESSION

CHAPTER 2

35,"

II. Kinds of Fruits:


. A. By their sovrce.
a. Natural: Spontaneous growth, 'without intervention of man (wild fruits, tan bark, young of
animals).
b. Industrial: products of the soil as a result of hu..
m a n labor.

A. Requisites:
a. Increase or addition to the original thing.
b. At repeated intervals (periodicity).
c. By inherent forces.

I. Fruits are all periodical additions to a principal thing


produced by forces inherent to the thing itself.

, ART. 442. Natural fruits ,a re the spontaneous


products of the soil, and the young and other products of animals.
~ndustrjal fruits are those prpduced by lands of
~
any kind through cultivation or labor.
Civil fruits are th~f bujJdjn~, thP~
of leases of lands and ~pe.J:!-ty-and the ~~~
of perpetual or life annuities or other s~m~income: (355a)
. ,
. .

(1) The natura,l fruits;


(2) The industrial fruits;
(3) The civil fruits. (354)

ART. 441. To the owner belongs:

Section I.-Right of Accession with Respect to


what is P1'oduced by P1'operfy

D. Bad faith involves liability for damages.


E. Bad faith of one party neutralizes the bad faith of
the other.

OUTLINE QF PHILIPPINE CIVIL LAW

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pr~l.

36

B. Except in cases of:


a.
ssession in good faith (to the possessor).
b. sufruct (to the usufructuary).
c. Lase (to the lessee).
d. ntichresis (to the creditor).

III. Ownership of Fruits


A. General Rule: Fruits go to the owner of the

'

2) Animals: are deemed to exist (are pending)


at the beginning of the maximum period of
gestation or the beginning of incubation, although still unborn.
b. Future: These are not regarded as natural or industrial fruits. Fruits must be visible or existing.

c. Civil: periodical (reiterable) inc1'ease of incorporeal property due to operation of law (rents, annuities. etc.).
1) Bonus to planters for the risk undergone in
mortgaging their property to secure the central's debts are not fruits (Bachrach vs. Talisay, 56 Pril. 117).
2) But stock dividends are fruits (Orozco vg.
Araneta, et al. G. R. .No. L-3691, Nov. 21.
1951) .
B. By their Separation fro1Y~ the Principal.
a. Pending: Attached to the principal.
b. Gathered: Separated from the principal.
1) Civil fruits accrue !1'om day to da.y (Art.
544).
2) Other fruits, from separation.
C. By their Existence.
a. Existing (manifest or pending).
1) Plants Single crops are deemed pending
upon appearance of shoots; periodic crops,
upon actual appearance of fruit.

OUTLINE OF PHILIPPINE CIVIL LAW

37

B. The expenses must not be superfluous but cornmensu. .rate with the normal needs of production (Manresa).

III. Requisites:
. A. The expenses are those dedicated to .the needs of annual production and not for the mere enhancement or
improvement of the estate, nor for mere luxury.

A. The article applies irrespective of whether ' the value


of the (gathered) fruits is less or more than the expenses incurred. However, the owner may free himself from this obligation by permitting the third person to take whatever the latter has cultivated or sown
(Manresa) .

II. Basis: No person may unjustly enrich himself at the


expense of another. Hence, the article is applicable irrespective of whether the planter or the sower is in good
faith or in bad faith (fruits ~athered, not pending)
(Manresa) .

C. Pending fruits are governed by Art. 545 (q.v.).

a. The rule does not apply to pending fruits: See


Possession (possessor in bad faith is not entitled
to re.i mbursemeniof expe:p.ses) (Art. 449).
B. Since the article speaks of a person who "receives"
the fruits, it applies only when the fruit.s have been
harvested and gathered (Dimson vs. Rivera (CA)
39 a.G. 1744).

A. Exception:

I. Expenses of production, gathering and preservation


(whether worth more or less than the value of the fruits)
must be borne by the receiver of the fruits.

ART. 443.' He who receives the fruits has the


obligation to pay the expenses made by a third person in their production, gathering, and preservation. (356)

OUTLINE OF PHILIPPINE CIVIL LAW

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38

B. Exception to the general rule:


a. The rules of the Civil Code on industrial acces'sion were not designed to regulate relations between private persons and a sovereign belligerent

II. The article applies the rule: accessorium sequitur


principale. ~a'nd is ~ principal. "Aedificium solo
cedit." (The building follows the land).
A. This article applies whether the building, etc. is by
the landowner himself or by another in his behalf
(Arts. 446-447).

I. Planting differs from Sowing in that the latter involves


one single crop for each deposit of seed. Planting gives
rise to permanent trunks which in turn produce the fruits
themselves.

ART. 445. Whatever is built, planted or sown on


the land of another and the improvements or repairs made thereon, belong to the owner of the
land, subject to the provisions of the following articles. (358)

Section 2.-Right of Accession with Respect


to Immovable Property

1. Offspring or increase of domestic animals belong to the


owner of the dam (female parent) by accretion (Siari
Valley Estate v. Lucasan GR L-7046, August 31, 1955).

ART. 444. Only such as are manifest or born are


~onsidered as natural or industrial fruits.
With respect to animals, it is sufficient that they
are in the womb of the mother, although unborn.
(357)

OUTLINE OF PHILIPPINE CIVIL LAW

39

ART. 447. The owner of the land who makes ther.eon, personally or through another, plantings, constructions or works with the materials of another,
shall pay th~ir value ; and, if he acted in bad faith;
he shall also be obliged to the reparation of damages. The owner of the ~aterials shall have t h e
right to remove them only III case he can do so wIthout injury to the work constructed. or without the
plantjngs, constructions or works .being de~troyed.
However if the landowner acted III bad faIth, the
owner of the materials may remove them in any
event. with a right to be indemnified for damages.
(360a)

ART. 446. All works, sowing, and planting are


presumed made by the owner and at his expense,
unless the contrary -is proved. (35~: )

c. See annotations on Conjugal Partnership (Vol.


I, p. 181).

nor intended to apply to constructions made exclusively for prosecuting a war when military
necessity is temporarily
paramount (Republic v.
,
;
~ara, 50 OG No. 12, 5778).
b. Buildings ana improvements, by the labor of
either spouse, or at the expense of the conjugal
partnership, on the private land of either spouse
is conjugal, and the land on which the building
is erected becomes conjugal, subject to right of
the owner-spouse to indemnity for the value of
the land. Here the rule is reversed, the principal
(land) follows the accessory (building) in the interest of constructions on vacant lots (Art. 158).
Here "buildings" do not include' warehouses
(Phil. Sugar vs. Poizat, 48 Phil. 555).

OUTLINE OF PHILIPPINE CIVIL LAW

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Bad Faith
in good faith (Art. 453) .

Bad Faith
.
1. Lose them without right to
indemnity (By analogy with
Art. 449).

Good Faith
1. Remove materials in any
event.
2. Be indemnified for damages
(Art. 447).

be no injury to work cons- tructed, or without plantings


or constructions being des~
troyed (Art. 447).
2. Receive indemnity ' for value

1. Remove them if there would:

Good Faith

Owner of Mate1'ials

40

C. Good faith in the owner of the materials lies in his


ignorance ' of the Builder's acts.

B. Bad faith in the Builder lies in his knowledge of his


lack of title and the absence of permission of the owner of the materials.
.

A. Good faith in the Builder (landowner) lies in his belief that the mat~rials belong to him and his ignorance
of any defect or flaw in his title (See Art. 526).
a. But .his negligence may subject him to ilability
for damages (Art. 456).

II. Basic concepts-

.Bad Faith .
(Same as though both 'acted

Good Faith
1. Acquire with~ut . paying indemnity (By analogy with
Art. 449).

Bad Faith
1. Acquire after paying' value
and paying indemnity for
damages (Art. 447) but subject to material owner's right
to remove.

Good Faith
1. Acquire the building, planting, or sowing after paying
indemnity for value of materials (Art. 447) .

Landowner
and
Builde1', Plan~e1' or . Sower

A. WHERE THE LANDOWNER IS THE IMPROVER

1. Table of Rights and Obligations:

OUTLINE OF PHILIPPINE CIVIL LAW

ART.

41

451. In the cases of the two preceding- art-icles, the landowner is entitled to damages from the
builder, planter or sower. (n)

449. He who builds, plants or sows in bad


on the land of another, loses what is built,
planted or sown without right to inde~111it~. (362)
ART. 450. The owner of the land on whICh anything has been built, planted or sown in bad faith
may demand the demolition of the work, o r that
the planting ~l" sow~ng be removed,. i.n order to replace thmgs m theIr former condition at the exp'ense of the person who built, planted or sowed; or
h~ may compel the builder or planter to pay the
price of the l~nd, and the sower the proper rent.
(363a) .'

A~T.

448. The owner of the land on which anything has been built, sown or' planted in good faith,
shall have ~he right to 3:pprop~'~ate as his own the
'works, sowmg or plantmg, after payment of the
indemnity provided for in articles 546 and 548, or
to oblige the one who built 01' 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 tn~es 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. (361a) ,
ART.

allowing the use of the materials without protest.

P. Bad faith in the owner of the materials consists in

OUTLINE OF PHILIPPINE CIVIL LAW

~-r

OUTLINE OF PHILIPPINE CIVIL LAW

452. The builder, planter or sower in bad


faith is entitled to reimbursement for the necessarv
expenses of preservation of the land. (n)
.
ART. 453. If there was bad faith, not only on the
part of the person who built, planted or sowed on
the land of another, but also on the part of the
owner of such land, the rights of one and the
other shall be the same as though both had acted
in good faith.
It is understood that. there is bad faith em the
part of the landowner whenever the a c t was done
with his knowledge and without opposition on his
part. (364a)
ART. 454. When the landowner acted in bad faith
and the builder, planter or sower proceeded in good
faith the provisions of article 447 shall apply. (n)
ART. 455. If the materials, plants or seeds belong
to a third person who has not acted in bad faith,
the owner of the land shall answer subsidiarily for
their value and 'only in the event that the one who
made use of them has no property with which to
pay.
This provision shall not apply if the owner makes
use of the right granted by article 450. If the owner
-of the materials, plants or seeds has been paid by
the builder, planter or sower, the latter may demand from the landowner the value of the materials
and labor. (365a)
ART.

456. In the cases regulated in the preceding


articles, good faith does not necessarily exclude negligence which gives right to damages under article
2176. (n)
ART.

42

OUTLINE OF PHILIPPINE CIVIL LAW

I. Basic cOnceptsA . Good faith in the Builder (Planter, Sower) lies in


his belief that the land belongs to him, and his ignorance of any defect or flaw in his title (Alburo vs.
Villanueva, 7 Phil. 277) .
a. But good faith, when coupled with negligence,
does not exclude liability for damages under Art.
2176 (Art. 456).
B. Good faith of the Owner lies in his ignorance of the
Builder's acts, or belief that the Builder, etc., has
the right to construct, plant or sow. In the contrary cas,e, the Owner is in bad faith.
C. Bad faith in the Builder (Planter, Sower) lies in his
knowledge of his lack of title and absence o f 'permission of the Landowner.

II. Rulings and comments-

A A. Under Art. 448, it is the Landown er who has the right


to choose between acquiring the improvements and
selling the land (Acuna and Diaz vs. Furukawa, Plantation Co., GR No. L-5833, Oct. 22, 1953).
B. Under Art. 448, the Landowner may not refuse both
to pay for the building and to sell the land and instead,
seek to compel the owner of the building ,to remove
the building from the land. The Landowner is entitled
to such removal only when, after having chosen to
sell the land, the other party fails to pay for said land
(Ignacio vs. Hilario, 43 OG 140) .
C. Title to the accessory does not pass until payment
therefor (TS 2 Jan. 28; 21 May 28).
D. Under Art. 448, failure of the Builder to pay for the
land destroys the right of retention (Bernardo v s .
Bataclan, 66 Phil. 599) unless the value of the land is
, considerably higher.
E. Time of payment: as agreed by the parties or as fixed by the Court (Bataclan vs. Court of First Instance,
61 Phil. 428).
43

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OUTLINE OF PHILI,P PINE CIVIL LAW

OUTLINE OF PHILIPPINE CIVIL LAW

F. The Builder's right to indemnity is recordable 'on the.


certificate of title as a lien (Atkins Kroll & CO. VB .
Domingo, 46 Phil. 362).
G. In case of successive alienations of the land, the recovery of the indemnity by the Builder, Planter, or
Sower should be from the present owner if acquired
by him in bad faith ' (Gongon vs. Tiangco (CA) 36
OG 822).
H. Article 448 is not applicable where a person constructs
a house on his own land and then sells the land but
not the building. In this case, the owner of the building may remove it, and the owner of the land has
no obligation to pa:y compensation for the house (Coleongco vs. Regalado, et al., 48 0G 5282).
I. The provisions on "industrial accession" imply that
the Builder, Planter, or Sower in good faith has a
claim of title, hence, is a possessor in good faith
(Alburo v. Villanueva, .7 Phil. 277).
.
J. Article 448 does not apply where the relation between
the parties is that of usufruct (Manresa). See Arts.
579, 580.
.
,

K. If the Builder builds with the permission of the Land-.


owner, they are treated as both being in good faith.
Actuaily, they are both in bad faith. (Bernardo VB.
Bataelan, 66 Phil. 598; De Guzman vs. Fuente, 55
Phil. 501).

L. Article 448 cannot be invoked in a case where 'a , c o owner builds, plants, or sows on the land owned in
common (Abicida Vda. de Arias vs. Aguilar (CA)
40 OG (5th Supp.) 126).
M. A lc~see is neither a Builder in Good Faith, nor in B a d
Faith. (Alburo vs. Villanueva, 7 Phil. 277). His
rights are governed by Art. 1678.
N. Article 449 applies to standing crops only (Dizon
Rivera, CA, 39 OG 1744), not gathered fruits.
44

VB.

III. Table of Rights and Obligations-A. WHERE THE LANDOWNER IS NOT THE IMPROVER.
Builder, Planter or Sower
and
Owner of Materials

Landowner

Good Faith

Good Faith
1. Landowner' has OPTION to
(Art. 448):
a. Sell land to Planter or
Builder or collect rent
from Sower;
Unl~s8 value of land is
considerably more. than
that of building or trees
in which case builder or
planter to pay rent under
terms fixed by parties or
Court (Art. 448)
OR
h. Acquire improvement upon
paying indemnity.
aa. Indemnity to be either:
(1) Original cost of
improvement (not
ornaments) or
(2) Increase in value'
of whole
(Plus
value) (Arts. 546,
548).

1. In (b), builder has right to


RETAIN until indemnity
paid and can not be required
to pay rent (Tufexis v s .
Chunaco,36 OG, 2455; Miranda vs. Fadullon and Segarra 51 OG, No. 12, 6226).

Bad Faith

Good Faith
1. Option to:
a. Acquire
improvements,
without paying indemnity, and collect damages j
or
b. Sellla'.1d to Builder, Planter, or rent land to Sower,
and collect damages in
both cases; or

1. Lose them without right to

indemnity.
2. Recover necessary expenses
for preservation of land.
3. Pay damages to landowner
(Arts. 449, 450, 451, 452).

45

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7

en

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1. Acquire

Good Faith
improvements and
pay indemnity to B, P or S.
2. (a) Sell to B or P.
Exception: If value o f land
cClnsiderably more, forced
lease.
(b) Rent to S.

Good -Faith
1. Acquire improvements and
pay indemnity to B, P, or S j
subsidiarily liable to owner
of materials
2' (a) Sell land to B or P . Exception If value of land is
considerably more.
(b) Rent to S. (Arts. 448,
546, 455),

CD

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Good Faith

o :<!
~eO

Good Faith
1. Collect value of materials
primarily from B, P, or S;
subsidiarily from landowner
if B, P or S insolvent.
2. Remove only if without injury (Arts. 455, 447) .

right to indemnity
449).
2. Pay damages.
sary and useful expenses.
2, Keep building, planting or
sowing without indemnity to
ovmer of materials and col-

(Art.

1. Lose the materials without


1. Right of retention for neces-

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Good Faith
1. Right of retention for necessary and useful expenses.
2. Pay value of materials to
owner of materials. (Arts.
546, 455).

Builde?', Plante?'
or
Sower (B, P, S)

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B. WHERE THE LANDOWNER, THE IMPROVER, AND THE


THREE DIFFERENT PERSONS.

Landowne?' (LO)

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>oj

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3. Without subsidiary liability


for cost of materials.

00

(8, P,S)

(LO)

lect damages from


(Arts. 546, 449).

(OM)

him

Good Faith

Bad Faith

Bad Faith

1. Option to:
a . Acquire improvement w l o
paying indemnity and coilect damages, o r
b. Demolition or restoration,_
and, coIlect damages; or
c. SeIl to B 61' P, or rent to
S, a n d cofIect damages.
2: Pay necessary expenses to
B, ' P or S (Arts. 449, 450,
451) .

1. Recover necessary expenses


for presel'v~tion of land.
2. Loses improvements without
right to indemnity from LO
(Art. 452)
unless LO seIls
land.

1. Recover 'value from B, P or


S (as if both in G. F .).
2. If B, P or S acquires ' improvements, remove materials if feasible 'without injury (Art. 447).
3. No action against LO. May
be liable to LO for damages.

Bad Faith

c::
~

....

t"

t".l

'%j

"d

....==

C
"tl

"tl
....

t".l

Bad Faith
(Same . as when all acted i n good faith

Bad Faith
1. Acquire improvements after
paying indemnity and damages to H, P or S unless latter decides to remove.
2. Sub,s idiarily liable t o o w n e r
of materials (Arts. 454,

Bad Faith

Good Faith
1. May remove improvements.
2. Be indemnified for damages
in any event. (Arts. 454,
447).

<:
....

(Art. 453) .

Good Faith
1. Remove materials if ,possible
without injury.
2. Collect value of materials.
p r i m a r i y from B, P or S;
subsidiarily from LO ( Arts.

t"'

t"

447,455).

447, 455).

(LO)

Ba'd Faith
1. Acquire improvements after
ind~ity; ' sub8idiatily

Ii.

able to owner of materials.


2. (a) Sell to Bn or P except:
if value of land i s consider.
ably more.
(b) R e n t toS (Arts. 453,

(B, P, S)

(OM)

Bad Faith
1. Right of ret~ntion for 'neces.

Good Faith
1. Collect value of materials
primarily from B, P or S;
subsidiarily from LO.
2. Collect damages.
3. If B, P or S acquIres improvements remove materials
in any event (Arts. 447,

s a r y expenses.
2. Pay value ~ of materials to
owner of materials and pay
him damages (Arts. 546,
447).

448, 546, 548, 455).

tl:>o
to

Good F a i t h
1. Optlon toa . Acquire without paying indemnity and collect damages.
b. Sell to B, P , or rent to
S ~Ulrl colIer~t damages or
c. Demolish or restore and
collect damages.
2. Pay n~essa1"Y expenses to
B. P or S.
3. Subsidiarily liable to owner
of materials (Arts. 449,

455) .

. Bad Faith
1. Recover necessary expenses.
(Arts. 452, 443) .
.
2. Loses improvements without
right of indemnity from LO.
(Art. 452) unless L0 sells
land.

Good Faith'
value of materials
and damages from B, P and
S.
2. Remove materials in any
event if B, P or S acquires
improvements ( A r t . 447).
1 . Collect

c::

~
o

'%j

"tl

tIl
....
t:
"d
:g

t".l

C':l
....
::l
t"'

t"'

>
~

450, 451).

Bad Faith
1. Acquire imprO,v ements and
pay indemnity and damages
to B. P 01' S ( A r t s 454, 47'7),
unless latter decides to remove.

Good Faith
1. Indemnity for damages.
2. Remove iIppr~vements in any
event (Arts. 4 5 4 , 447) .

Bad Faith
1. No indemnity; loses materials (Art. 449) . .

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OUTLINE OF PHILIPPINE CIVIL LAW

IV. Basic Principles.


1
.
A., Rights between Landowner and the\Builder,:.Planter ,
or Sower must be decided first before the rights of
the Material Owner can be determined.
B. The owner of the materials in bad faith loses his materials, unless the other parties are also in bad faIth.
C. Bad faith of one neutralizes that of the other.
D.' The party in bad faith pays damages to the party in
good faith. ,
'
E. The owner of the materials in good faith collects from
the' builder and subsidiarily from the landowner.

ART. 457. To the owners of lands ajoining the


banks of rivers belong the accretion which they
gradually receive from the effects of the current
of the waters. (366)
,
NATURAL ACCESSION ,
1. Concept of alluvium: It is (1) the gradual deposit of
sediment (2) by natural action o f a current (3) of fresh
water ( n o t sea water) ( 4) the original identity of t he
deposi.t being lost.

II. Ownership is in the riparian owner.


A. Reason for the 'rule:

a. To compensate the ovvners for losses which they


may suffer by erosion;
b. To compensate them for the burdens of legal
easements which are imposed upon t h e m
c. Because it is the owner of the ' ccmtiguous land
who can utilize the incremeNt to the best advantage (Manresa) ; and
d. Because this is the only feasible solution, since the
previous owners, can no longer be identified (Falcon).
5~

,OUTLINE OF PHILIPPINE CIVIL LAW

III. Rulings and c o m m e n t s A. "Rivers":include cree ks which ha ve a regular current


of water, but not canals and esteros which h ave no
current but are merely artificial drainage outlets
(Guison vs. City of Manila (CA) 40' OG 3835).
B. Where the deposit is by sea water, it belongs to the
State (Govt. P.I. vs. Cabangis. 53 Phil. 112; Ker & Co.
vs. Cauden, 223 U.S. 2 6 8 ) .

C. Artificial alluvium is penalized by Com. Act No. 383,


if made without government authority.
.

D. Alluvial accession is not barred by the reg.istration


of the land (Payatas vs. Tuason, 53 PhiL 55).

E. A gradual change of hed is also governed by the r u l e s


of alluvium (Canas vs. Tuason, 5 Phil. 689).

'

F. In the sale of friar; lands under Act No. 1120, where


the government reserves title to the land pending full
payment of the p u r c h a s e price, any accretion received
by the lot before the payment of the last illstallment
b e l o n g s t o the purchaser since the lat t er has the beneficial and equitable title in the property (Dir. of
Lands, et al. vs. Rizal GR L-292'5, Dec. 29, 1950) .
a. The rule is applicable by analogy to other instalment purchases of land.

ART. 458. The owners of estates adjoining ponds


or lagoons do not acquire the land left dry by the
natural decrease of the waters, or lose that inundated by them in extraordinary floods. (367)
I. Rulings and comments-A. This is not really a case of "alluvium" since it does
not involve a deposit of sediment.
B. The article refers to ponds or lagoons (i.e. small bodies
of shallow water, usually fresh, fed by floods, and

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OUTLINE OF PHILIPPINE CIVIL LAW

a. If the owner of the trees claims them within six


months, he must pay the expenses of removing
and safekeeping (Art. 460).

bounded by elevations of land); it does not apply


to lakes (i.e. bodies of water formed in the depres.
sions of the earth, fed by fresh water coming through
rivers, brooks, or springs). Lakes are governed by
Art. 77 of the Spanish Law of Waters which states:

ART. 461. Rivel' beds which are abandoned


through the natural change in the course of the
waters 'ipso facto belong to the owners whose lands
are occupied by the new course in proportion to the
area lost. However, the owners of the lands adjoining the aIel bed shall have the right to acq:uire
the same by paying the value thereof, which value
shall not exceed the value of the area occupied by '
the new bed. (370a)

"Lands accidentally inundated by the waters


of lakes. or by creeks, rivers and other streams,
shall continue to be the property of their respective owners." (Govt. vs. Colegio de San Jose,
53 Phil. 423).
a. The true reason lies in the absence of alluvial
deposit in the cases governed by A r t . 458.

ART. 459. Whenever the current of a river, creek


or torrent segregates from an estate on its bank a
known portion of land and transfers it to another
estate, the owner of the land to which the segregated
portion belonged retains the ownership of it, provided that he removes the same within two years.
(368a)
ART. 460. Trees uprooted and carried away by
the current of the waters belong to the owner of the
land upon which they may be cast, if the owners
do not claim them within six months. If such
owners claim th.em, they shall pay the expenses incurred in gathering them or putting them in a sare
place. (369a)

I. Where the deposit is of known (identifiable) portion


of land (avulsion): the original owner retains the title,
except in case of (a) abandonment or (b) expiration of
2 years. .Avulsion is, therefore, a case of "delayed accession."
II. In case of trees carried by the floods, the landowner
may remove them and place t h e m in a safe place right
away; he need not wait six months to make use of his
land.

1. Requisites of "change of bed":


A. It must be sudden, so the old river bed can be identified; otherwise we apply the rules of alluvium (unless
the river disappears, when abandonment applies)
See III, E, p. 51..
B. The change must be permanent: the rule does not
apply to temporary overflowing (France, Requetes,
26 Feb. 1896).
C. T h e r e must be an abandonment by the owner of the
bed, i.e., a decision hot to bring back the river to the
old bed (Panlilio vs. Mercado, 44 Phil. 695).

According to Dean Capistrano, the words "ipso


facto" were introduced in the new Code in order to
repudiate the ruling in the case ofPanlilio vs. Mercado. The validity of this Qbservation may be doubtful. To illustrate: Suppose the government spent
huge sums for the building of a dam for the benefit
of the public. Then a change of bed occurs. Would
not the government be entitled to bring back the river
to the old course? It would seem unreasonable to
require the government to go through the process of
eminent domain proceedings before doing so.

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OUTLINE OF PHILIPPINE CIVIL LAW

D. The change of bed must be natu ral .. otherwise, the


bed may be .the subject of a state grant (Manresa,
Sanchez Roman) ,

II. Under the old Code, it was ruled that if the river dries
up entirely (Pinzon vs. Rama (CA) 2 OG (PEC 307),
the old bed accrues to the riparian owners if the government does not claim it, The solution under the present
rule would seem to favor the retention of ownership of
the bed in t he name of the government, since there is no
injury to private parties.

III. The rule of our present Art: 461 is that of Art. 563
of the French Civil Code. It is interesting to note that
by a Law of April 8, 1898, the French abandoned such
rule as impractical, and 'adopted that of our old Civil
. Code (1889) Art. 370, granting the abandoned bed to the
old riparian owners. We have reversed the process.
ART. 462. Whenever a river, changing its course
by natural causes, opens a new bed through a private estate, this bed shall become of public dominion.
( 372a)
ART. 463. Whenever the current of a river divides
itself into branches, leaving a piece of land or part in~o
thereof isolated, the owner of the Land retains his
ownership: He also retains it if a portion of land
is separated from the estate by the current. (374)
ART. 464. Islands which may be for med on the
seas within the jurisdiction of the Philippines, on
lakes, and on navigable or floatable rivers belong
to the State. (371a)
ART. 465. Islands which through successive ac- a~
cumulation of alluvial deposits are formed in nonnavigable and non floatable rivers, belong to the
owners of the margins or banks nearest to each of ba~
them, or to the owners of both margins if the island the~owners'?fOf
is in the middle of the river, in which case it shall

OUTLINE OF PHILIPPINE CIVIL LAW

be divided longitudinally in halves. If a single


island thus formed be more distant from one margin than from the other, the owner of the nearer
margin shall be the sole owner thereof. (373a)

I. Rules on "formation of islands."

A. Requisites : Formed by deposits not identifiable (accumulation of sediment) (Art. 465) .


B. Ownership:
a, Formed by the sea
1) Within territorial w a t e r s t o the STATE
(Art. 464).
.
2) Outside territorial watersto the first OCCUPANT (v. Public Internat ional Law).
b. Formed in lakes or navigable or floa,table rivers:
to the STATE (Art. 464) .
1) The Government shall declare what rivers arc
navigable or .floatable (Law of Waters,
Art. 175).
2) Rivers are navigable in law if navigable in
fact for some purpose beneficial trade
or commerce (U.S. vs. Oregon, 295 U.S. 1;
State vs. Aucoin (La. 20 So. 2d., 136) .
c. By non-navigable or non-floatable rivers:
1) Equidistant from both banks (measured from
the island's margins)to the riparian island~s
owners, by halves.
'.
2) Nearer one margin or bank: to the nearer
riparian owner. (Art. 465).
. C. Formation of island by branching of a river: There is
no accession; the owner retains ownership of the isolated piece. (Art. 463).
Section 3.-Right of Accession with Respect

to Movable Property

466. 'Whenever two movable things belonging to different owners are, without bad faith..
united in such a way that they form a single object,
ART.

54

55
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ART. 468. If it cannot be determined by the rule


givenin the preceding article which of the two
things incotporated is the principal one, the thing
of the greater value shall be so considered and as
between two things of equal value, that of the great-'
er volume.
In painting and sculpture, writings, printed matter, engraving and lithographs, the board metal,
stone, canvas, paper or parchment shall be deemed
the accessory thing. (377) acces~ory

ART. 467. The principal thing, as between two


things incorporate is deemed to be that to which
the other has been united as an ornament or for
its use or perfection(376) .

I. Accession exists only if separation is not possible. Otherwise, separation may be demanded. (Art. 469).
II. Kinds:
A. Adjunction:
a. It is the union of materials of different owners
making up a new thing (separation being impossible without injury) (Arts. 466, 469).
b. Each component retains its own nature.
B. Mixture: It is the union of materials where the components lose their identity.
a. Conmixtion (in case of solids).
b. Confusion (in case of liquids).
C. Specification:
It is the transformation of another's material by
the application of labor. The material becomes a
thing of a different kind.

57

ART. 471. Whenever the owner of t h e material


employed without his consent has a right .to an in..
demnity, he may demand that thIS consist in the delivery of a thing equal in kind and value,and in all
other respects, to that employed, or else in the price
thereof, according to expert appraisal. (380)

ART. 470;Whenever the owner of the accessory


thing has made the incorporation in bad faith, he
shall lose the thing incorporated and shall have the
obligation to indemnify the owner of the principal
thing for the damages he may have suffered.
If the one who has acted in bad faith is the
owner of the principal thing, the owner of the accessory thing shall have a right to choose between
the former paying him its value or that the thing
belonging to him be separated, even though for this
purpose. it be necessary to destroy the prmcipal
thing; and in both cases, furthermore, there shall
be indemnity for damages.
If either one of the owners has made the incorporation with the knowledge and without the objection of the other, their respective rights shall. be
determined as tough both acted in good faith.
(379a)

ART. 469. Whenever the things united can be separated without injury, their respective owners may
demand their separation.
Nevertheless, in case the thing united for the use,
embellishment or perfection of the other, is much
more precious than the principal thing, the owner
of the former may demand its separation, even
though the thing to which it has been incorporated
may suffer some injury. (378)

the owner of the principal thing acquires the accessory, indemnifying the former owner thereof for its
value. (375)

ACCESSION IN MOVABLE PROPERTY

OUTLINE OF PHILIPPINE CIVIL LAW

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OUTLINE OF PHILIPPINE CIVIL LAW

OUTLINE OF PHILIPPINE CIVIL LAW

ART. 472. If by the will of their owners two things


of the same or different kinds are mixed, or if the
mixture occurs by chance, and in the latter case the
things are not separable without injury,each owner
shall acquire a right proportional to the part belonging to him, bearing in mind the value of the
things mixed or confused. (381)
ART. 473. If by the will of only one owner, but
in good faith, two things of the same or different
ldnds are mixed or confused, the rights of the
owners shall be determined by the provisions of the
preceding article.
If the one who caused the mixture or confusion
acted in bad faith, he shall lose the thing belonging
to him thus mixed or confused, besides being obliged
to pay indemnity for the damages caused to the
owner of the other thing with which his own was
mixed. (382)

I. Summary of the rules of ADJUNCTION:


A. Generally, the Accessory follows the Principal.
a. Determination of the principal thing: Tests
Arts. 467-468) in the order of their application:
1) Intent: that to which another is united as
ornament, or for its use or perfection is deemed the principal.
i) The heart of the motor vehicle, the engine, is the principal, and the rest is
the accessory (A. C. Ransom v. Puzon
a n d Lazo (CA) 49 OG. No.2, 598).
2) Value: the thmg of greater value is considered the principal;
3) Volume: if .the values are equal, that of greater volume IS the principal.
b. Adjunction in good faith by either owner:
1) Generally accessory follows principal (Art.
469) EXCEPT:
i) If the accessory is much more precious
than the principal, the owner of the accessory may demand the separation even
if the principal suffers some injury
(but not destruction) (Art. 469, par. 2).

1. Summary of the rules of


A . MIXTURE:

a. By the will of both owners or by accident: (Art.


472) .
1) Each owner acquires an interest in proportion to the value of his material (resulting. in
co-ownership) .
i) This applies to sales from a mass of
fungible goods (Art. 1464).

c. Union by the owner of the principal acting in bad


.faith

1) Option of the owner of the accessory (Art.


470, par. 2) :
.
i)To recover the value plus damages; or
II) To demand separation (even to the extent of destroying the p.rincipal) plus
.
d. Union by the owner of the accessory in bad faith .
1) He loses the accessory.
2) He is liable for damages (Art. 470).
58

dam~~.

b. By one owner in good faith (Art. 473). The rule is


the same as in Par. a-I.
c. By one owner in bad faith (Art. 473).
1) He loses all rights to his own material; and
2) He is answerable for damages.
.
d. By a common agent (same as Par. a):
Warehouse Receipts Law (Act 2137).

See the

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OUTLINE OF' PHILIPPINE CIVIL LAW

474. One who in good faith employs the


material of another in ,whole .01' in part in order to
make a thing of a different kind, shall appropriate
the thing thus transformed as his own, indemnifying the owner of the material for its value.
If the material is more precious than the transformed .thing or is of more value, its owner may, at
his option, appropriate the new thing to himself.
after first paying indemnity for the value of the
work, or demand indemnity for the material.
If in the making of the thing bad faith intervened.
the owner of the material shall have the right to
appropriate the work to himself without paying- anything to the maker, or to demand of the latter that
he indemnify him for the value of the materIal and
the damages he may have suffered. However, the
owner of the material cannot appropriate the work
in case the value of the latter, for artistic or scientific reasons. is considerably more than that of the
material. (383a)

OUTLINE OF 'PHILIPPINE CIVIL LAW

ART.

1. Summary of the rules of


A. SPECIFICATION (labor is the principal) (Art. 474).
a. Owner of the principal in good faith :
1) The maker acquires the new thing; and
2) He must indemnify the owner of the material.
3) Exception:
If the material is more valuable than the
resulting thing, the owner of the material
has the OPTION
i) To acquire the work, indemnifying for
.the labor; OR
ii) To demand .indemnity for the material.
b. Owner of the principal (worker)
in bad faith:
the material owner has the OPTION
60

1) To acquire the result without indemnity (due


to the impossibility of separation) ; OR
2) To demand indemnity for thel material plus
damages.
c. Material owner in bad faith l
He loses the material; and
2) He must pay for damages.
1)

ART. 475. In the preceding articles, sentimental


value shall be duly appreciated. (n)

1. Summary of the rules of indemnificationA. Indemnity for the material, how paid:
Either by

(Art. 471)

a. Thedelivery of the same quantity, kind and quality; or


b. The payment of the value, as .per expert appraisal.
1) In determining the value, sentimental value
is to be taken into account (Art. 475).
' CHAPTER 3

QUIETING OF TITLE (n)

ART. 476. Whenever there is a cloud on title to


real property or 'any interest therein, by reason of
any instrument, record, claim, encumbrance or proceeding which is-apparently valid or effective but
is in truth and in fact invalid, ineffective. voidable.
or unenforceabl2, and may be preiudicial to said
title, an action may be brought to remove such cloud
or to quiet the- title. .
An action may also be brought to prevent a cloud
from being cast upon title to real property or any
interest therein.
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OUTLINE OF PHILIPPINE CIVIL LAW

I. The nature of the action: It is an equitable action in rem

instrument or other obligation has been extinguished or has termmated, or has been barred by extinctive prescription.

to determine' the condition of the ownership or the rights


to immovable property, and remove doubts thereon.

II. Classes:
. A. Preventive (Action quia timet) to preven t a future
cloud (doubt) from being cast upon title to real. pro
perty or an interest therein (Art. 476, par. 2).
B. Remedial (Action to quiet title)-the action may be
brought to remove a cloud or quiet title to real property or any interest therein, whenever:
a. There is a present cloud on title that may be
prej udicial to the same.
b. A cloud exists by reason of any
1) Instrument (deed) or contract; or
2) Record; or
3) Claim; or
4) Encumbrance; or
5) Proceeding; or
6) Obligation
that is apparently valid or effective;
.
c. But in truth and in fact, such instrument, etc., is
1) Invalid; or .
2) Ineffective; or
3) Voidable; or
4) Unenforceable; or
5) Extinguished or terminated; or
6) Barred by extinctive prescription (Arts. 476,
p. 1; 478).

477. The plaintiff must have legal or equit- eq~it


able title to or interest in the real property which
is the subject-matter of the action. He need not be
in possession of said property.
ART. 478. There may also be an action to quiet
title or remove a cloud therefrom when the contract
ART.

62

ART. 479. The plaintiff must return to the defendant all benefits he may have received from the latter, or reimburse him for expenses that may have
redounded to the plaintiff's benefit.

I. Summary of the rules governing " Quieting of Tittle"


A. The plaintiff must have legal or equitable - (beneficial) title to, or interest in, the real property whi'ch is
the subject matter of the action.
.
a. But the plaintiff need not be in possession of the
property (Art. 477).
B. The action to quiet title does not apply:
a. To questions involving interpretation of documents (Trustees of Schools vs. Wilson, 78 ALR
21) .

b. To mere written or oral assertions of claims


(Do).

1) Unless made in a legal proceeding (78 ALR


83) .
2) Or asserting that an instrument or entry in
plaintiff's favor is not what it purports to be
(78 ALR 55) .
c . To boundary disputes (78 ALR 58).
d. To deeds by strangers to -t.he title (78 ALR 288)
unless purporting to convey the property of the
plaintiff.

e. To instruments invalid on their face (78 ALR 69).


1) The test is : would the owner of the property
in an action for ejectment brought by the
adverse party be required to offer evidence
to defeat a recovery? (Pixley vs. Huggins,
15 Cal. 127).
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Title III.CO-OWNERSHIP

1) A joint tenant can not sell his separate share,


2) The interest of the deceased accrues to the
surviving joint owner.

ART. 484. There is co-ownership whenever the


ownership of an undivided thing or right belongs
to different persons.
In default of contract; or of special provisions,
co-ownership shall be governed by the provisions of
this Title. (392)

3) The disability of one joint owner benefits the


others. (Tagarao vs. Garcia, 61 Phil. 5).

II. Sources:
A. Law (party walls, hedges and ditches; between surviving spouse and heirs of deceased).

I. Concept-It exists where the ownership of a thing physically undivided pertains to more than one person. Hence,
it is defined as

B . Contract.

C. Succession (heirs before partition).

"The right of common dominion which two or more


persons 'have in a spiritual part of a thing which is not
physically
divided" (Sanchez
Roman).
.
,

A. Characteristics:
a. Each co-owner holds an ideal portion, definite
in amount, but not physical1y identifled.
b. Each co-owner has absolute control of his ideal
share.
c. Co-owners must observe mutual respect in regard
to the use, enjoyment and preservation of the
thing as a whole. (Scaevola).
Hence: "a co-owner has the right to freely sell
and dispose of his undivided interest but
no right to sell a divided (definite) part '
of the .real estate owned in common" (Lopez vs. Ilustre, 5 Phil. 568-569).
B. Classes: Multiple ownership of an undivided object
may be:
a. Tenancy in com1non-invcilving a physical whole,
and ideal division; ownership by the ipdividual
coowners .r esults.
b. Joint tenancy-involving a physical whole, and
resulting in ownership in the group.
66

1) The Successional Estate is a co-ownership

before partition (patrimonio unitario en


transito) (TS 27 June 1949).
D. Chance (conmixtion, hidden treasure).
E. Occupation (hunting and fishing: Punzalan vs. Boon
Liat, 44 Phil. 320).

III. Distinguished from partnership:

PARTNERSHIP

AA. Is created

GO-OWNERSHIP

by contract. A. Is created by other


only (except conjugal
sources be sid e s conpartnership) .
tract.
B. Has Juridical personalHas no jurjdical perity distinct from the
sonality.
members.

C. May be represented by
any partner (unless
otherwise agreed).
)

D. Has for its p urpose


profit.

C. Involves no legal representation of other coowners.


D. Has for i t s purposecommon enjoyment

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OUTLINE OF PHILIPPINE CIVIL LAW

E. May be for more than


10 years.

F. May be dissolved by
any partner's death.

E. May not stipulate indivision for more than


,. 10 years (20 if imposed
by testator, or donor
Art. 494).
F. Is not dissolved by the
death of a co-owner.

IV. Duration:
A. Contractual Co-ownershipAn agreement to keep a thing undivided for not
more than ten (10) years is valid. This period may
be extended by a new agreement (Art. 494) .
a. New agreement means a contract entered into
after the lapse of the first period of 10 years
Otherwise the limitation could be easily defeated.
B. Non-contractual Co-ownership-(See "Termination,"
post, page 76-78).
.

ART. 485. The share of the co-owners, in the


benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be vOId.
The portions belonging to the co-owners in the'
co-ownership shall be presumed equal, unless the
contrary is proved. (393a)
.
ART. 486. Each co-owner may use the thing owned in common, provided he does so in accordance
with the purpose for which it is intended and in
such a way as not to injure the interest of the coownership or prevent the other co-oWners from using it according to their rights. The purpose of the
.co-ownership may be changed .by agreement. ex
press or implied. (394a)
68

OUTLINE OF PHILIPPINE CIVIL LAW

ART. 487. Anyone of the co-owners may bring


an action in ejectment. (n)
ART. 488. Each co-owner shall have a right to
compel the other co-owners to contribute to the expenses of preservation of the thing or right owned
in common and to the taxes. Anyone of the latter
may exempt himself from this obligation by renouncing so much of his undivided interest as may
be equivalent to his share of the expenses and taxes.
No such waiver shall be made if it is prejudicial to
the co-ownership. (395a) .
ART. 489. Repairs for preservation may be made
at the will of one of the co-owners; but he must, if
practicable, first notify his co-owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority
as determined in article 492. (n)
ART. 490. Whenever the different stories of a
house belong to different owners, if the titles of
ownership do not specify the terms under which
they should contribute to the necessary expenses
and there exists no agreement on the subject, the
following rules. shall be observed:
(1) The main and party walls, the roof and the
other things used in common, shall be preserved at
the expense of all the owners in proportion to the
value of the story belonging to each;
(2) Each owner shall bear the cost of maintaining the floor of his story ; the floor of the entrance,
front door, common yard and sanitary works common to 'all, shall be maintained at the expense of
all the owners pro rata ;
(3) The stairs from the entrance to the first
tory shall be maintained at the expense of all the
owners p r o r ata, with the exception of the owner
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OUTLINE OF PHILIPPINE CIVIL LAW

of the ground floor; the stairs from the first to the


second story shall be preserved at the expense of all,
except the owner of the ground floor and the owner
of the first story; and so on successively. (396)
ART. 491. None of the co-owners shall, without
the consent of the others, make alterations in the
thing owned in common, even though benefits f o r
all would result -therefrom. However, if the withholding of the consent by one or more of. the coowners is clearly prejudicial to the common interest,
the courts may afford adequate relief. (397a)

1. Summary of the rights of each co-owner as to the thing


owned in common
A. To use it according to the purpose intended (which
may be altered by agreement, express or implied) ;
but
a. Without prejudice to the interest of the co-ownership; and
b. Without preventing the use by the other coowners (Art. 486).
Hence, exclusive use by one co-owner entitles the
others to demand. a proportionate share of the
proper rental (Pardell vs. Bartolome, 23 Phil.
450).
B. To share in the benefits and charges in propol,tion to
the interest of each. A contrary stipulation .i s VOID
(Art. 485).
a. Proportionality can not be altered by stipulation,
it being against the nature of co-ownership (Manresa).
C. Repairs and Taxes: To compel the others to share
in the expenses of preservation, even if incurred without prior notice, but he must give notice if practicaclble
(Art. 489),
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a. A co-owner may not exempt himself except by


abandoning for the benefit of the others so much
of his undivided share as may be equivalent to his
share in the expenses and taxes (Art. 488).
b. This abandonment does not require acceptance
under the old Code; but should require it now,
being a means to pay the advances made (datio
in solutum, Art. 1245).
c. There may be no abandonment if it is prejudicial
to the co-ownership (A.r t. 488).
D. Alterations: To oppose alterations made without the .
consent of all, even if beneficial; but if the refusal is
clearly prejudicial to the common interest, the Court
may grant .relief (Art. 491).
a. Alteration is any change injurious (to the thing
or other co-owners) or material in the use destination or state of the thing; but "replacement"
is not alteration (Enriquez v. Watson & CO.,
22 Phil. 623).
b. Consent of all the co-owners is required (majority is not enough) ; it may be tacit or express.
c. Expenses to improve or embellish are decided by
the majority (Art. 489).
E. To protest against seriously prejudicial decisions of
the majority (see "Management") (Art. 491).
F. To defend the co-ownership's interests in Court.
a. Anyone co-owner may sue for ejectment (Art.
487) . This rule reverses Palarca v. Baguisi, 38
Phil. 177.
G. Legal redemption: To redeem within thirty (30) days

from written notice of the sale of an undivided share


of another to a stranger (Arts. 1620, 1623). Notice is
to be given by the vendor.
H. Partition: To demand partition any time (see "Termination") .(Art. 494) . .
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I. To the benefits of prescription: Prescription by one


co-owner benefits all (Art. 1933).
J. As regards co-ownership of a building by stories (horizontal co-ownership) (Art. 490) :
a. To demand proportional contribution for the preservation of the walls, roof and things used in
common.
b. Each story owner is to bear expenses of his floor.
c. The stairs from story to story are to be maintained at the expense of those using them.
d. The individual stories are not owned in common.

492. For the administration and better enjoyment of the thing owned in common, the resolutions of the majority of the co-owners shall be bmding.
There shall be no majority unless the resolution
is approved by the co-owners who represent the con- ~on.
trolling interest in the object of the co-ownership.
Should there be no majority, or should the resolution of the majority be seriously prejudicial to those
interested in the property owned in common, the
court at the instance of an interested party, shall
order'such measures as it may deem proper, including the appointment of an administrator.
.
Whenever a part of the thing belongs exclusively belo~gs ex~lusively
to one of the co-owners, and the remamder is owned
in common, the preceding provisions shall apply
only to the part owned in common. (398)
ART.

1. The following are governed by a m a j o r i t y of interest


(not of persons) : questions regardingA. Management (e.g. the custody of jewels owned in
common-Lavadia v. Cosme, 72 Phil. 196).
B. Enjoyment.
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OUTLINE OF PHILIPPINE CIVIL LAW

C. Improvement or embellishment (Art. 489).


II. What are acts of management?
those that

(Castan):

They are

A. Do not involve an . alteration (p. 71) ; and


B. Are renewable, from time to time; and
C. Do not bind the community for a long time in the future; and
D. Do not give rise to a real right over the thing owned
in common.

III. The minority may appeal .t o the Court against the majority's decision, if seriously prejudicial. Examples:
A. When an alteration is decided upon;
B. When it is prejudicial to the rights of an individual
co-owner;
C. When serious risk is incurred;
D. When there is refusal to correct maladministration',
E. When fraud is committed upon the minority (Manresa, Castan).
IV. A majority is not enough: for alteration, encumbrance, disposition (Gala vs. Rodriguez, 70 Phil. 124).
A. Long term lease (over 6 years) by a majority is void
(Melencio vs. Dy Tiao Lay, 55 Phil. 100).
ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto: and he may therefore alienate,
assign 61' mortgage it, and even substitute another
pers.on in its enjoyment, except when-personal rights
are mvolved. But the effect of the alienation o r the
mortgage, with respect to the co-owners shall be
limited to the portion which may be alloted to him
in the division upon the termination of the co-ownership. (399)

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1. Rights as to ideal share of each co-owner: .


A. Each has full ownership of his part and of his share
of the fruits and benefits (Art. 493).
B. He may substitute another person in its enjoyment
except when personal rights are involved.
.C. He may alienate, encumber or dispose of his (ideal)
share (without prejudice to legal redemption by other
co-owners) .
.
D. He may renounce part of his interest to reimburse
necessary expenses incurred by another co-owner
(Art. 389).
E. Effect of a transaction by each is limited to hIS
share upon partition.
a. The transferee does not acquire any specific portion of the whole until partition (Lopez vs. llustre, 5 Phil. 567).
b. Creditors of co-owners may intervene in the partition or attack the same if prejudicial (Art. 499).
c. . But creditors can not ask for its rescissjon, even
. if not notified, in the absence of fraud. (Art.
497).
F. These rules do not apply to the conjugal community.
(Refer to Vol. I).

494. No co-owner shall be obliged to remain


in the co-ownership. Each co-owner may demand
at any time the partition of the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing un. divided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit . partition for
a period which shall not exceed twenty years. .
Neither shall there be any partition when it is
prohibited by law.
.
ART.

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No prescription shall run in favor of a co-owner


or co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-ownership. (400a)
ART. 495. Notwithstanding the provisions of the
preceding article, the co-owners cannot demand a
physical division of the thing owned in common,
when to do so would render it unserviceable for the
use for which it is intended. But the co-ownership
may be terminated in accordance with article 498.
(401a)
ART. 496. Partition may be made by agreement
between the parties or by judicial proceedings. Partition shall be governed by the Rules of Court insofar as they are consistent with this Code. (402)
ART. 497. The creditors or assignees of the coowners may take part in division of the thing
owned in common an object to its being affected
without their concurren . But they cannot impugn
any partition already executed, unless there has
been fraud or in case it was made notwithstanding
a formal opposition presented to prevent it, without
prejudice to the right of the debtor or assignor to
maintain its validity. (403)
ART. 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that it be
allotted to one of them who shall indemnify the
others, it shall be sold and its proceeds distributed.
. (404) .
ART. 499. The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude, or any.othe.f
real rights belonging to them before the division
was made. Personal rights pertaining to third per75

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sons against the co-ownership shall also remain in


force, notwithstanding the partition. (405)
ART. 500. Upon partition there shall be a mutual
accounting for benefits received and reimbursement3
for expenses made. Likewise, each co-owner shall
pay for damages caused by reason of his negligence
or fraud. (n)
ART. 501. Every Co-owner shall, after partition,
be liable for defects of title and quality of the portion assigned to each of the other co-owners. (n)

I. Extinction of Co-ownership.
A. Causes-

a. Total destruction of the thing.


b. Merger of all the interests. '
c. Prescription (Adverse Possession):
1) .By a third person.
2) By one co-owner.

But in this case,

i) Silent possession is not enough; it must


be open and adverse.
ii) Repudiation of the co-ownership must
co-owners~

be brought to the attention of the other


co-owners (Mallari vs. Sunga, G.R. No.
L-5043, Dec. 17, 1952).

iii) Possession of a cQ-owner is presumed

not adverse (Laguna vs. Levantino. 71


Phil. 566).
d. Partition or Division.
1) When: It may be asked by any co-owner at
any time. Except:
i) When there is a stipulation against it
(not over 10 years).

OUTLINE OF PHILIPPINE CIVIL LAW

ii) W hen the condition of indivision is imposed by the transferor (donor or testator) (not to exceed 20 years) (Art.
494).
iii) When the legal nature of the communi-

ty prevents partition (party wall, irrigators' association).

iv) When the partition would render the


thing unserviceable (but the thmg may
be sold to divide the price) (Art. 494).
v) When partiti6n is prohi.bited by law (f.
ex., 'eonjugal partnershIp).

2) Procedure for judicial partition


(see Rule
71, Rules of Court).
.
i) Determination of ownership
by the
court is indispensable to make. proper
adjudication (Brownell v. Bautista, 50
OG No. 10, p. 4772).
3) Effect:

i) Partition confers exclusive title to each


over his respective share (Art. 1091).
ii) Each owner shall be deemed to have

exclusively possessed the part which


may be allotted to him upon the division
for the entire period of co-possession.
(Art. 543).
aa) But this refers only to the exclusive possession of the portion alotted to each co-heir, not to the
shares of the others which one
heir buys off
(Ramos Silos v.
Lui~a
Luisa Ramos, G.R. No. L-7546,
June 30, 1955).
77 .

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iii) There arises a reciprocal warranty


against eviction and loss of quality, in
proportion to the shares (Art. 501) .
Except:
aa) When there is a contrary stipulation; or
ab) When eviction is due to causes
subsequent to the partition or to
the fault of the one evicted ( A r t s .
1092-1093) .
iv) Partition does not affect the rights of
strangers (Art. 499)
4) Creditors of individual co-owners need not
be notified but they may object if prejudiced:
i) However, creditors can not ask for rescission (impugn) if no fraud was committed, or if formal objection was not
made by them (Art. 497).

78

Title IV.- SOME SPECIAL PROPERTIES


CHAPTER

WATERS
Section 1.-Ownership of Waters

502. The following are of public dominion:


(1) Rivers and their natural beds;
(2) Continuous or iritermittent waters of springs
and brooks running in their natural beds and the
beds themselves;
(3) Waters rising continuously 01' intermittently
on lands of public dominion;
(4) Lakes and lagoons formed by Nature on public lands, and their beds;
(5) Rain waters running through ravines or sand ,
beds, which are also of public dominion;
(6) Subterranean waters on public lands;
(7) Waters found within the zone of operation
of public works, even if constructed by a contrac
tor;
(8) Waters rising continuously or intermittently on lands belonging to private persons. to the
State, to a province, or to a city or a municipality
from the moment they leave such lands;
(9) The waste waters of fountains., sewers and
public establishments. (407)
ART. 503. The following are of private ownership:
(1) Continuous or intermittent waters rising
on lands of private ownership, while running
through the same;
ART.

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a. Running water:
1) Rivers and their natural channels (Art. 502

(2) Lakes and lagcons; and their beds, formed


by Nature on such lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long
as they remain within the boundaries;
(5) The beds of flowing waters, continuous or
intermittent, formed by rain water, and those of
br.oo.ks, crossing lands which are not of public dominion.
In every drain or aqueduct, the water, beds, banks
and floodgates shall be considered as an integral
part of the land or building for which the waters
are intended. The owners of lands. through which
or along the boundaries of. Which. the aqueduct
passes, cannot claim ownershIp over it or any right
to the use of its bed or banks, unless the claIm is
based on titles of ownership specifying the right or
ownership claimed. (408)

[1]) ;
2) Continuous and intermittent water from

springs and brooks, running in natural channels and the channels themselves (Art. 502
[2]) .

B. Waters public or private according to their bed (accessory to bed) :


a. Subterranean waters (Arts. 502 [6], 503 [3]);
b. Subterranean waters rising to the surface continuously or intermittently (Arts. 502 [3], 503
[1] ;
c. Non-running water (lakes and ponds) (Arts. 502
[4] and 503 [2]);
d. Rain water (Arts, 502 [5J, 503 [4]) even if flowing (Art. 503 [5]).

C. Waters public by special provision:


a. Waters in zones of public w01'ks, even if constructed under contract (Art. 502 [7]);
b. Private water after leaving the estate of origin
:,1
(Arts. 502 [8], 507, 514) ;
c. Waste water of fountains, sewers, etc. (Art. 502
[9]) .

1. Laws governing waters:

A.

The Civil Code of the Philippines.


B. The Special Law of Waters of August 3, 1866, extended to the Philippine Islands on September 24,
1871 (the Law of Waters of June 13, 1879 was never
in force here: Montano vs. Insular Govt. 12 Phil.

Section 2.-The Use of Public Waters

572).

C. The Irrigation Acts, Act 2152 and its amendments.


D. The Water Power Act, No. 4062.
E. Art. XIII of the Philippine Constitution, which provides that sources of potential energy are reserved to
the State.
II. Classification of Waters (Public and Private).
A. Waters public p e r se (water is the principal; the bed
follows the character of the water).
,

80

504. The use of public waters is acquired


(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the
use shall be that established, in the first case, by
tthe terms of the concession, and. in the second case,
by the manner and form in which the waters have
been used. (409a)
ART.

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ART. 505. Every concession for the use of waters


. is understood to be without prejudice to third persons. (410)
.
ART. 506. The right to make use of public waters
is extinguished by the lapse of the concession and
by non-user for five years. (411a)
I. Acquisition and use of public watersA. How acquired:

a. By administrative concession.
1) Under the Irrigation Acts, by the Director of
Public Works, with the approval of the Department Secretary.
2) For water power, by legislative franchise
(Act 4062).
b. By prescription (of 20 years under the Spanish
Civil Code): reduced to 10 years by Art. 504;
(But see the Irrigation Acts).
B. How lost:

a. By the lapse of the concession or franchise;


b. By nOll-user for .5 years (Art. 506).
C. Except for water power, beneficial use is the measure
and limit of the grant (Phil. Const. Art, XiII, Sec. 1).
Section 3.-The Use of Waters of Private Ownership

ART. 507. The owner of a piece of land on which


a spring' or brook rises, be it continuous or intermittent, may use its waters while they run through
th.e same, but after the waters leave the land they
shall become public. and their use shall be governed
by the special Law of Waters of August 3, 1866.
and by the Irrigation Law. (412a) .
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OUTLINE OF PHILIPPINE CIVIL LAW

ART. 508. The private ownership of the beds of


rain water does not give a right to make works or
constructions which may change their course to the
damage of third persons, or whosedestructiol1. by
the force of floods, 'may cause such damage. (413)
ART. 509. No one may enter private' property to
se.a rch waters or make use of them without permission from the owners. except as provided by the
Mining Law. (414a)
. ART. 510. The ownership which the proprietor of
a piece of land has over the waters rising thereon
does not prejudice the rights which the owners of '
lower estates may have legally acquired to the use
thereof. (415)
ART. 511. Every owner of a piece of land has the
right to construct within his property, reservoirs
for rain waters, provided he causes no damage to
the public or to third persons. (416)
I. Use of waters of private ownership:

A. It is exclusive while insid.e the estate of origin (Arts.


507, 509).
B. One must obtain the owner's consent to search for
water (Arts. 509, 512) , except as provided in the
Mining Law.
C . The overflow IS public in character (Arts. 507, 514.
502 (8).
D. It must not be used to the damage of other persons
(Arts. 508, 510, 515).
E. Defensive works are to be maintained by all the owners benefited in proportion to their respective interests (Art. 517).
Section 4.-Subterra:nean Waters

ART. 512. Only the owner of a piece of land, or


another person with his permission, may make explorations-thereon for subterranean waters. except
as provided by the Mining Law.
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Explorations for subterranean waters on lands


of public dominion may he made only with the permission of the administrative authorities. (417a)
I. The Mining Law is now C.A. No. 137.

ART. 513. Waters artificially brought forth in accordance with the special Law of Waters of August 3, 1866, belong to the person who brought them
up. (418)
ART. 514. When the owner of waters artificially
brought to the surface abandons them to their natural course, they shall become .of public dominion,
(419)
Section 5.-General Provisions

ART. 515. The owner of a piece of land on which


there are defensive works to check waters, or on
which, due to a change of their course, it may be
necessary to reconstruct such works, shall be obliged,
at his election, either to make the necessary repairs
or construction himself, or to permit them to be
done, without damage to him, by the, owners of the
lands which suffer or are clearly exposed to suffer
. injury. (420)
ART. 516. The provisions of the preceding article
are applicable to the case in which it may be necessary to clear a piece of land of .matter, whose accumulation or fall may obstruct the course of the
waters, to the damage or peril of third persons.
(421)
ART. 517. All the owners who participate in the
benefits arising from the works referred to in the
two preceding articles, shall be obliged to contribute
to' the expenses of construction in proportion to
their respective interests. Those who by their fault
may have caused the damage shall be liable for the
expenses. (422)
.
84

OUTLINE OF PHILIPPINE CIVIL LAW

ART. 518. All matters not expressly determined


by the provisions of this Chapter shall be governed
by the special Law of Waters of August 3, 1866,
and by the Irrigation Law. (425a)
CHAPTER 2

MINERALS

ART. 519. Mining claims and rights and other


matters concerning minerals and mineral lands are
governed by special laws. (427a)
I. Laws governing minerals:
A. Before 1902: R. D. sobre Mineria (Royal Decree on
Mining) of 1867;
B. Between 1902-1936: The Philippine Bill of 1902 and
Legislative Acts;
C. After the advent of the Commonwealth: The Philippine Constitution, Art. XIII, s. 1, and Com. Act No.
137.
II. Ownership of mineral lands is reserved to the state (Regalian Doctrine). (Phil. Const. Art. XIII, Sec. 1) .

Exploitation and development is limited to citizens or


corporations or associations with at least 60
interest
owned by citizens (modified by the Parity Amendment).

III. Location:
A. Entry into private land must be with the owner's
consent or upon compensation fixed by the prospector and owner, or the Director o f Mines, or by the
Court.

B. Basis of this location is "discovery" (finding) of mi. neral, but the location must be within 30 days from

discovery.
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c. Procedure :

a. Lode claims (original formation in rock) ; 1) The claim should be r ectangular as far as
possible.
2) Size of the claim:
For metals-9 hectares for each locator.
For precious stones-4 hectares for each lo- .
cator.
For salines and mineral waters-4 hectares
for each locator.
.3) The steps to be followed in "locating":
i) Mark the discovery post;
ii) Mark the direction of the vein ("location line") by posts and notices;
iii) Mark the boundaries and corners of the
claim, with corner notices.
b. Placer claims: (ore in loose or broken formation)1) The claim may be irregular in shape.
2) The size: 8 hectares per person;
64 hectares for associations or
corporations.
3) Location: The boundaries and corners of the
claim must be marked.

D. Registration must be made, within 60 .days from location, ofa. Declaration of location;
b. Affidavit of posting of legal notices;
c. Proof of locator's citizenship or 60 % interest belonging to citizens.
E. Number of claims: The law limits these to not more
than three per vein or placer ground.
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OUTLINE OF pmUPPINE CIVIL LAW

F. Mining Leases: The period provided by law is 25


years renewable for 25 years more.
a. The lease should be obtained within 4 years from
location.
b. The area is not to exceed the following:
For lode metal claims---450 hectares; 250 claims
in the whole Philippines.
For placer metal claims-400 hectares for each
individual; 3200 hectares for associations.
For precious stones: 40 hectares per individual;
320 hectares for associations.
For salines and .mineral waters-24 hectares per
individual; 320 hectares for associations.
For non-metals--450 hectares.
c. Annual assessment work must be at least P200
worth per claim per year. .

G. Oil a n d gas: (Act 2932)


. a. Leases:
.
1) . Blocks of 400 hectares for individuals; 1200
hectares fof associations.
2) The maximum number is not more than 60
blocks.
3). The duration of the lease is from 1 to 5 years
subject to renewal,;
.
:.

b. Kinds of leases :

1) For geological. "exploration" (preliminary in


nature) ;
2) For "drilling" and production.
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CHAPTER

TRADE-MARKS AND TRADE-NAMES

ART. 520. A trade-mark or trade-name duly registered in the proper government bureau or office
is owned by and pertains to the person, corporation, or firm registering the same, subject to the
provisions of special laws. (n)
ART. 521. The goodwill of a business is property,
and may be transferred together with the right to
use the name under which the business is conducted.
(n)
ART. 522. Trade-marks and trade-names are governed by special laws. (n)

I. Trade-Marks, T'rade-Names and Service Marks (Rep.


Act No. 166).
A. A person may acquire a right to the exclusive use of:

A Trade-Marka design, word, name or symbol to


distinguish one's goods from those of another.
A Trade-Namean appellation to distinguish the
business, vocation or occupation of .one.
A Service Markone used to distinguish services
otner tnan trade or commerce.
B. These must be registered at the Patent Office.

a. Registration must be based on priority of actual

use.
b. There should be one application for each class of
goods and services.
c. The application and certificate of registration are
to be published in the Official Gazette.

88

C. Registration shall not be granted, unless they have beCome distinctive, in cases of
Immoral, deceptive, scandalous or disparaging
matter;
b. Those which falsely suggest connection with persons, institutions, beliefs or symbols;
c. The n,ational flag coat of arms or insignia of any
nation;
d. The names, portrait, or signature of a living person, without his consent, or of a deceased Presiwithout t h e consent of his widow;
dent
.
e. Resemblance to some other trade-mark, likely to
cause deception to customers;
f. Merely descriptive, geographically descriptive or
deceptively descriptive terms;

g. Surnames.
D. Duration of the privilege: The protection granted is
for 20 years renewable for 20 year periods upon application within 6 months from expiration.
E. Registration is subject to cancellation for:
Becoming a common descriptive name;
b. Abandonment;
c. Fraudulent or illegal registration;
d. Use to misrepresent the source of goods.

a.

F. Remedies for infringement:


a. Inj unction;
b. Damages consisting of
1) Reasonable profit lost to the complainant; or
2) Actual profit made by the infringer.
3) In case of actual fraud, double damages are
assessed.

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OUTLINE OF PHILIPPINE CIVIL LAW

G. Unfair competitiona. Consists of passing off one's goods as those of


another by means country to good faith. Particularly1) Imitating the general appearance of goods;
2) Inducing the false belief that the goods or
.. services offered .are those of another;
3) False statements in the course of trade to
discredit another.
H. Foreign registrants must belong to a nation which is
a party to an international treaty or convention on
trade-marks, trade-names or repression of unfair

competition. .
I Goodwill includes every positive advantage arising
out of the business of the old firm, whether connected
with the premises, or name, or with any other matter
carrying with it the business of the old firm (see 24
Am. Jur . p. 803).

TitleV-POSSESSION
CHAPTER 1
CH~TER

POSSESSION
AND THE KINDS THEREOF
.

ART. 523. Possession is the holding of a thing or


the enjoyment of a right. (430a)
~

I. C o n c e p t - ( D e r i v e d from pos sedere, "to be settled:")

Possession is the material holding or control. of a thing


(possession proper) or the exercise of a right (quasi
possesion) (Art, 523).
A. Whether a fact or a right-In its inception possession
is a fact which gives rise to certain consequences attached to it by law, that confer upon it the characteristics of a right (Savigny, Barassi).
.
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OUTLINE OF PHIL1PPINE CIVIL LAW

The right, as independent and apart from ownership, is termed right OF possession (jus possessionis) ; to be distinguished from the right T O possession which is a mere incident of ownership (jus pos-

sidendi) .
B. Requisites of possession
a. Holding or control of a thing or right;
. b. Deliberate intention to possess;
c. By virtue of one's own right (not necessarily as
owner but
the effect of a right claimed by the
. holder).

as

II. Degrees of "holding"


A. Without title or right whatsoever, as that of a thief;
B. With a juridical title but not that of an owner, as that
of a lessee or depositary; .
C. With a just title sufficient to transfer ownership, but
not from the true owner, as that of a buyer- in good
faith; and
D. With a title of dominion, as that of an owner (Sanchez
Roman).
ART. 524. Possession may be exercised in one's
own name or in that of another. (431a)
ART'. 525. The possession of things or rights may
be had in one of two concepts: either in the con" .
cept of owner or in that of the holder the t h i n g
or right to keep or enjoy it, the ownership pertaining to another person. (432)
ART. 526. He is deemed a possessor 'in good faith
who is not aware that there exists in his title or
mode of acquisition any.flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.

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Mistake upon a doubtful or difficult question of


law may be the basis of good faith. (43:3a)
I. Classes of possession:
A. By the character of the holdinga. Naturalphysical holding (detention).
b. Civilnatural possession coupled with the intention of claiming the benefits of the thing or
right for one's self (Old Civil Code, Art. 430,
"intention of making the thing or right as one's
own") .
The New Code, in omitting this distinction,
seems to follow the doctrine of Yheringevery
holder is a possessor, entitled to protection, except
those who originally acted with violence (or intimidation) or hold by stealth (thief) or toler a n c e (permission) of the owner. Those who
hold by tolerance include agents, messengers,
guards, etc" who merely serve the possession of
the principal (Art. 524).

B. Civil Possession may be


a. By the claim of the possessor over the thing :
1) As (in' the concept of) owner (in the opinion
or belief of others). This is the onlypossession leading to title by prescription.
2) As non-owner (lessee, usufructuary depo, sitary, commodatary) to keep or enjoy the
thing, with the ownership pertaining to another person (Art. 525).
b. By the character of the possession:
1) In good faith-where the possessor is not
aware that there 'is in his title or _mode .of
acquisition a defect that invalidates it (wh,ether his ignorance be one of fact or of law
92'

is not material, provided such ignorance is


not inexcusable; Kasilag v. Rodriguez, 69
Phil. 217) .
Mistake on a doubtful question or difficult
question of law may be the basis of good faith
(Art. 526).
2) In bad faith-where the possessor is not unaware of the invalidating defect in his own
title or in the title of his predecessor.
Note: Distinguish pO,s session as owner from
possession in good fa,ith. One may possess as
owner whether he acts in good or in had
faith.
Possession may also be:
a. In one's own name (personal)-where the possessor claims the thing for himself (equivalent
to civil possession).
b. In the name of anothe1 (Art. 524) -for whom
the thing is held by the possessor (as possession
by a lessee or agentaccording to Valverde; possession of a custodian or guard, according to Perez-AIgner and Castan).
The holder has possession only for purposes
of defending the possession from strangers. The
material or physical holder is only a "possession
servant" (Enneccerus).
1) In the case of a lessee, we should distinguishPossession of the thing itself (which the
lessee holds in name of the owner) ; and

Possession of the right to enjoy (or benefit,


from) the thing (that the lessee holds for

himself and can defend even against the


owner).
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2) Similarly, the distinction should be made in


commodatum, deposit, pledge, etc.

527. Good faith is always presumed, and


upon him who alleges bad faith on the part of a
possessor rests the burden of proof. (434)
ART . 528. Possession acquired in good faith does
not lose this char acter except in the case and from
the moment facts exist which show that the possessor is not u aware tnat he possesses the thing improperly or wrongfully. (435a)
ART.

I. In the absence of other proof, good faith is deemed lost


from service of summons in a suit to recover the thing
from the possessor (Art. 1123).

529. It is presumed that possession continues


to be enjoyed in the same character in which it was
acquired, until the contrary is proved. (436)
ART.

I. Presumptions in favor of the possessor (as owner) :


A. Of good faith until the contrary is proved (Art. 527).
B. Of continuity of initial good faith in which possession was started unless acts are proved showing that
the possessor is aware that he possessed wrongfully
(Art. 528) .
'
C. Of enjoyment in the same character (good or bad
faith) in which the possession was acquired until
the contrary is , proved (Art. 529).
D. Of non-interruption in favor of the present possessor who proves possession at a prior time (previous
occasion) (Art. 554) ,until the contrary is 'proved.
E . Of continuous possession by the one who recovers possession of which he was wrongfully deprived, for all
purposes favorable to him (Art. 561).
F. Of extension of possession of real property to all movables contained therein. (Art. 542), but excepting
money and securities mentioned i n Art. 426 (TS
J une 22, 1928).
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OUTLINE OF PHILIPPINE CIVIL LAW

ART. 530. Only things and rights which are susceptible of being appropriated may be the object
of possession. (437)
.

I. What may be possessed:


A. Only things and rights susceptible of being appropriated (i.e. owned) may be the object of possession
(Art. 530).
B. Excluded from possession are:
a. "Res communes" beyond human control;
b. Property of public dominion;
c. Discontinuous servitudes;
d. Non-apparent servitudes,
CHAPTER

ACQUISITION OF POSSESSION
ART. 531. Possession is acquired by the material
occupation of a thing or the exercise of a r i g h t or
by the fact that it is subjec t.o the action of Qur
will, or by the proper acts and legal formalities e s tablished for acquiring such right. (438a)
1. Manner of acquiring possession: .

A.' Material occupancy of the thinga. Includes constructive delivery (tradition b?"evimany and constitution possessorium).
b. The possession of a portion of a tract of land,
under claim of ownership of the whole, is constructive possession of the whole' tract, provided
that the remainder is not adversely possessed by
another (Ramos vs. Dir. of Lands, 39 Phil. 175).
But the area constructively possessed must be
reasonable. "Mere planting Qf a sign or symbol
of possession cannot justify a Magellan-likeclaim
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of dominion over an immense tract of territory"


(Lasam vs. Dir. of Lands, 65 Phil. 367, ,373).

B. Subjection to the action of our will (according to


law).
a. Even without physical seizure (as in tradicion
simbolica and traditio longa mo,nu).
C. Proper acts and legal formalities established for ac-
quiring such righta . Examples are: donation, successioll, transmissive contracts, etc., executed and formalized as
required by law.
b. The possessiQn given by the sheriff to a person
in compliance with an order made by the court
pursuant to the adjudication of rights in dispute
constitutes a proper instance of the "legal steps
and formalities" asa means of acquiring possession (Muyco vs. Montilla. 7 Phil. 498).
ART. 532. Possession may be acquired by the same
person who is to enjoy it, by his legal representative, by his agent, or by any person without any
power whatever;. but in the last case, the possession
shall not be consIdered as acquired until the person
in whose name the act of possession was executed
has ratifiedthe same, without prejudice to the juridical consequen,ces of negotiorum gestio in a proper
case. (439a)

ART. 533. The possession of hereditary property


IS deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case ,the inheritance is accepted.
One who validly renounces an inheritance is
deemed never to have possessed the same. (440)

ART. 534. One who succeeds by hereditary title


shall not suffer the consequences of the w r o n g f u l

OUTLINE OF PHILIPPINE CIVIL LAW

possession of the decedent. if it is not shown that


he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him
except from the date of death of the decedent. (442)
1. Special Cases of Acquisition of Possession:
A. Acquisition through another person--Where possession is acquired, not by an agent or representative,
but by a stranger without agency, possession is not
acquired until ,the act is ratified (Art. 532).

B. Acquisition by succession mortis causa


a. T i m e of acquiring: If the inheritance is accepted, the estate is transmitted without Interruption
from the death of the predecessor. But the heir
who repudiates is deemed never to have acquired
possession (Art. 533).
b. Effect of bad faith of the decedent: One who
succeeds by hereditar.y title shall not suffer the
consequences of the wrongful possession of the
decedent unless it is shown that he had knowledge
of the defects affecting it; but the effects of possession in good faith shall not benefit him except from the death of the decedent (Art. 534).
ART. 535. Minors and incapacitated persons may
acquire the possession of things; but they need the
assistance of their legal represent atives in order to
exercise the rights which from the possession arise
in their favor. (443)

I. Capacity to Acquire Possession:

. A. According to ,the Code (Art. 535), minors and inca-

pacitated persons may acquire possession of things


but require intervention of their lawful representatives to exercise the rights in their favor arising from
such possession.
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B. Clearly, however, the rule (of Art. 535, first part)


applies only to acts within the minor's capacity ' (physical seizure or manual donation) ; to acquire possession by other juridical acts, the intervention of the
guardian is required (Castan, cit. Morell).

.. ART. 536. In no case may 'possession be acquireu


through force or intimidation as long as there is a
possessor who objects thereto. He who believes that
he has an action or a right to deprive another of the
holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver
the thing. ( 441a)
ART. 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of
the possessor of a thing, or by violence, do not a :
feet possession. (444)
T. RulingsA. A person who believes himself entitled to the possession of property may not take the law into his own
hands (Bishop of Cebu vs. Mangaron, 6 Phil. 286) ;
or .else, he will be made to suffer the consequences
of his lawlessness (Santiago vs. Cruz) 54 Phil. 640).
B. Possession by mere tolerance is not adverse and does
not give rise to acquisitive prescription (Cuaycong
vs. Benedicto, 37 Phil. 781).
a. What constitutes tolerance: Tolerance is permission. See post, p. 114.
C. "Clandestine" possession is hidden or disguised, as
distinguished from open or public possession. But
possession is not clandestine merely because the
owner is not personally aware of it.

. ART. 538. Possession as a fact cannot be recognized at the same time in two different personali.ties except in the cases of co-possession. Should a
98 .

question arise regarding the fact of possession, the


present possessor shall be pr eferred ;. if there are
two possessors, the one longer in possession if the
dates of the possession are the same, the one who
presents a title; and if all these conditions ar e equai
the thing shall be placed in judicial deposit pending determination of its possession or ownership
through proper proceedings. (445)

1. Conflicts betw een claimants t.o possession


A. General rule : Possession can not be recognized in
two different personalities, except 11l cases of copossession (indivision), when there is no conflict
Co-possessors are those acting as if they were coowners, without conflicting claims or interest.

in case of dispute :
preference shall be
given
.
.
a. To the actual possessor (in fact) :
b. If there are two or more possessors, to the oldest;
c. If dates are the same, to the one who exhibits
.
title thereto;
d. If all these conditions are equal, the thing shall
be placed in judicial deposit, until possession
or ownership is determined in proper pr oceedings (Art. 538) .
C. But possessors may co-exist if of different degrees.
(e.g. owner and lessee).

,~ Criteria

CHAPTER 3

EFFECTS OF POSSESSION

ART. 539. Every possessor has a right to be respected in his possession ; and should he be disturbed
ther ein he shall be protected in or r estor ed to said
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possession by the means established by the laws and


the Rules of Court.
A. possessor deprived. of his possession through
forcible entry may within ten days from the filing
of the complamt present a motion to secure from
the competent court, in the action for forcible entry
a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide
the motion within thirty (30) days from the filing
thereof. (446a)
.
I. Effects of Possession:
A. Protection of the possessor regardless of the manner of acquisition.

Every possessor is entitled to be resp ected in his


possession and should he be disturbed therein he
shall be protected in or restored to such possession
by the means established by the laws of procedure.
a. The owner must resort to the courts, and can not
forcibly eject a possessor (Bago vs. Garcia, 5
Phil. 524; Santiago vs. Cruz, 54 Phil. 540) .
b. Actions to recover possession; kinds
1) SummaryRule 72 (Forcible entry and detainer). This is sometimes referred to as
accion interdictal.
2) OrdinaryAccion publiciana based on the
superior right of plaintiff to possession (not
to ownership) (Bishop of Cebu vs. Mangaron, 6 Phil. 286). It may be brought in the
Court of First Instance i f no forcible entry
action is filed (Del Rosario vs. Celosia. 26
Phil. 404).
3) Accion reivindicatoria based on ownership,
mdependent of the other two actions abovementioned.
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OUTLINE OF PHILIPPINE CIVIL LAW

4) Injunction against continuation of trespass;


n ow available to recover possession already
lost only in case of forcible entry, by motion
within ten days from the filing of the action
(Art. 539).
B. Basis of the protection : Detention (holding not as
owner) by itself produces no juridical effects. While
the detainer is a uthorized to repel by force the acts
of aggression against the thing that he holds, and to
demand by proper action the restoration of this
thing, when he is deprived of it by violence, yet his
detention is not the source, but the occasion for the
exercise of these rights. The first derives from the
principle of self-defense, and the second from reasons of public order or policy. Spoliatus ante omnia
restituendus.
No person may be deprived of property without due process.
If the holder, moreover, enjoys in certain cases
the faculty of retention, and to refuse restitution
until reimbursement of what is due him for expenses '
made because of the thing held, the source of this
power is not in the detention itself, but in a credit
whose origin is attached to this detention, (Aubry et
Rau, Droit Civil, Vol. 2, p. 1, 6th Ed.)
C. Reason for the protection (Manresa):
,a. Possession is most analogous to ownership.
b. It gives rise to a presumption of ownership.
c. It is an important modification of ownership.
d. It is a juridical state worthy of protection.
D. Note that the effects of possession regulated by the
Code are those of possession in the concept of owner.
Only Art. 539 applies to other classes of possession,
and the rule of said article (539) is rooted. not in
the fact of possession, but in public policy; that no
one should. take the law in his own hands. True pos101

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session under the Civil Code, therefore, is possession


in the concept of owner.
ART. 540. Only the possession acquired and en
joyed in the concept of owner can serve as a titl~
for acquiring dominion. (447 )

I. The following may not acquire ownership b y acquisitive


prescription:
A. Lessees (Laureto vs. Mauricio (CA) 37 OG 1286) ;
B. Trustees (Camagun vs. Allingay, 19 Phil. 415);
a. Includes parent against child under potestas;
husband against wife during coverture (Art.
1109) .
C. Agents (De Borja vs. De Borja, 59 Phil. 19) ;
D. Antichretic creditors (Barretto vs. Barretto, 37 Phil.
234).
E. Co-owners (v. ante, p. 76)
II. Although a mere tax declaration does not, of itself, vest
title of ownership in the declarant (Casimiro vs. Fernandez, 9 Phil. 562), and while the tax assessment alone
is of little value as proof of title (Prov. of Camarmes
Sur vs. Dir. of Lands, 64 Phil. 600), still, payment of a
land tax is one of the 'most persuasive and positive indicia which show the intention to possess under claim
of ownership (Tupaz vs. Ricamora,. (CA) 37 OG 581).

ART. 541.
in his favor
with a just
or prove it.

A possessor in the concept of owner has


the legal presumption that he possesses
title and he cannot be obliged to show
(448a)

. I. Effects in favor of possession in the concept of owner.


A. Presumption of just title and he can not be 'compelled
to exhibit it (Art. 541).
a. But the presumption of just title does not apply
to an adverse possessor in acquisitive prescription who m.u st prove his just title ( Art. 1131).
102

OUTLINE OF PHILIPPINE CIVIL LAW

B. Possession can ripen into ownership by prescription.


Only the possession in concept of owner can serve
as title to acquire ownership (Art. 540).
C. A possessor in the concept of owner may exercise all
powers attached to ownership, until he is ousted by
one with a better right (TS Nov. 27, 1906; 10 Feb.
1914; 9 March 1922; 25 March 1925).
D. Right to fruits and reimbursement of expenses, post,
pp. 104-107.

ART. 542. The possession of real property presumes that of the movables therein, so long as it is
not shown or proved that they should be excluded.
(449)
ART. 543. Each one of the participants of a thing
possessed in common shall be deemed to have exclusively possessed the part which may be allotted
to him upon the division thereof, for the entire period during which the co-possession lasted. Interruption in the possession of the whole or a part of a
thing possessed in common shall be to the prejudice
of all the possessors. However, in case of civil interruption, the Rules of Court shall apply. (450a)
ART. 544. A possessor in good faith is entitled to
the fruits received before the possession is legally
interrupted.
Natural and industrial fruits are considered received from the time they are gathered or severed.
Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion. (451)
. ART. 545. If at the time the good faith ceases,
there should be any natural or industrial fruits, the
possessor shall have a right to a part of the expenses
of cultivation, and to a part of the net harvest, both
. in proportion to the time of the possession.
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The charges shall be divided on the same basis


by the two possessors.
The owner of the thing may, should he so desire,
give the possessor in good faith the right to finish
tne cultivation and garnering of the growing fruits,
as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good
faith who for any reason whatever should refuse
to accept this concession, shall lose the right to be
indemnified in any other manner. (452a)
1. Effects of possession as owner as to the fruits:

A. Fruits gathered or severed.


a. Possessor in good faithHe makes the fruits his
own until possession is legally interrupted (Art.
544; National Coconut Corporation vs. Geronimo,
G.R. No. L-2899, April 29, 1949).
b. Possessor in bad faithHe must pay not only
for the fruits received but also for those that
the owner might have received (except for the
fault or negligence of the possessor), less the
expenses of cultivation (to avoid unjust enrichment) (Art. 549; Dir. of Lands vs. Abagat,
53 Phil. 147). .

B. Fruits pending (ungathered).


a. Possessor in good faith--is entitled to the foll o w i n g (Art. 545) :
1) Prorating of cultivation expenses.
2) Prorating of net proceeds of the crop in proportion to the time .of possession (on the
b a s i s of the agricultural year
3) Prorating of charges (including all kinds of
taxes, pensions for annuities, interest on
mortgages etc.).

104

OUTLINE OF PHILIFPINE CIVIL LAW

Charges are expenses on account of the


thing, but .not in the thing (Manresa).
4) Owner's OPTION:
aa) To reimburse expenses, fruits and
charges in money, OR
bb) To permit the possessor to finish
cultivation and the collection of
fruits, in lieu of indemnity.
The possessor must accept the
owner's choice or lose the right
to indemnity, even if the fruits
are less than his expenses.
b. Possessor in bad faith--loses the fruits and the
expenses of cultivatIon (Art. 449).
ART. 546. Necessary expenses shall be refl:mded
to every possessor; but only the possessor in good
faith may retain the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to t h e
possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refundmg the amount
of the expenses or of paying the increase in value
which the thing may have acquired by reason thereof. (453a)
ART. 547. If the useful improvements can be removed without damage to the principal thing, the
possessor in good faith may remove .them, unless
the p erson who recovers the possession exercises e~erclses
the option under paragraph 2 of the preceding article.(n)
ART. 548. Expenses for p u r e luxury or m e r e
p l e a s u r e shall not be refunded to the possessor.m
good f a i t h but he may remove the ornaments WIth

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f1~

which he has embellished the principal thing if it


suffers no injury thereby, and if his successor in
the possession does not prefer to refund the amount
expended. (454 )
ART. 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have
a right only to the expenses mentioned in paragraph
1 of article 546 and in article 443. The expenses
incurred in improvements for pure luxury or mere
pleasure shall not be refunded to the possessor m
bad faith; but he may remove the objects for which
such expenses have been incurred, provided that the
thmg suffers no mJury thereby, and that the law
iu1 possessor does not prefer to retain .them by paying the value they may have at the time he enters
into possession. (455a)
ART. 550. The costs of litigation over the property shall be borne by every possessor.
ART. 551. Improvements caused by Nature or
time shall always inure to the benefit of the person
who has succeeded in recovering possession. (456)
ART. 552. A possessor in good faith shall not be
liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he
has acted with fraudulent intent or negligence,
after the judicial summons.
A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by
a fortuitous event. (457a)
ART. 553. One who recovers possession shall not
be obliged to pay for improvements which have
ceased to exist at the time he takes possession of
the thing. (458)
106 ,

554. A present possessor who shows his possession at some previous time, is presumed to have
held possession also during the intermediate period,
in the absence of proof to the contrary. (459)
ART.

'

1. Effects of possession as owner as regards expenses on


the thing possessed
A. N ecessary expense.s (without which the thing would
physically deteriorate or be lost).
a. Any possessor (in good or in bad faith) is entitled to reimbursement (Art. 546).
b. Only the possessor in good faith is 'entitled to
retention.
'
NOTE: Taxes are "charges," not necessary ex.penses (Cabigao vs. Valencia, 53 Phil. 646).
B. Useful expenses (increase the productivity or raise
the value for every subsequent possessor, e.g., an
irrigation system-Valencia vs. Lopez, 51 Phil. 279).
a. Possessor in good faith: The o w n e r must reimburse useful expenses (Art. 546).
1) Manner of reimburse'ment: The owner has
the option to
i) Pay the original cost of the improvement, OR
ii) Pay the increase in the value ("plus
va1ue") due to the improvement.
But the possessor in good faith is entitled to
(1) r etention until paid, or (2) to remove
the improvements, with,out damage to the
principal, unless compensation is paid (Art.
547).
b. Possessor in bad faith: He loses the improvements without reimbursement (Art. 449) . Improvements made by the execution pur chaser during the one year period of redemption (Flores

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vs. Lim, 50 Phil. 738) with intent to prevent redemption, come under this rule.
NOTE: Necessary and useful expenses can not be
set off against fruits gathered by the
possessor (Toquero vs. Valdez, 35 OG
[102] 1799).
C. Ornarnental (Luxury) Expenses- (which add to the
value of the thing only for certain determinate persons) (f.e., gardens, murals, statuary; Art. 548).

a. Possessor in good faith: He has no right to reimbursement. The owner has the option to
either (Art. 548) :
1) Retain the ornament by refunding the amount

spent; OR

2) Permit the possessor to remove the orna-

ment provided the principal thing is not in jured (to the extent of impairing its value '
or of requiring extraordinary repairs).

b. Possessor in bad faith: He has no right to reimbursement. The owner's option is, either to:
1) Retain the ,ornament by paying its value at
the tirne of taking possession (cf. possessor
in good faith) : or

OUTLINE OF PHILIPPINE CIVIL LAW

II. R esponsibility for the loss of th e thing possessed: (Art.


552).
A. Possessor in good faith: He is not liable for deterioration or loss unless acting with fraudulent intent
or negligence, after summons.
B. possessor in bad faith:
He answers for the loss or
deterioration even if due to force majuere.
(Art.
552).
NOTE: The owner's options are threefold:
a. As to production expenses of pending fruits:
1) To prorate expenses and net fruits; OR
2) To permit the possessor in good faith to
finish cultivation and the collectIon of fruits
(without further indemnity).
b. As to useful expenses of possessor in good faith:
1) To refund the amount spent OR
2) To pay the "plus value".

c. As to ornarnental expenses:
1) To allow removal of ornaments (if possible without injury) ; OR
2) To refund the amount expended to the possessor in good faith or "plus value" to the
possessor in bad faith.

2) Permit the removal of the ornament if the


principal thing suffers no damage thereby
consisting in reduction of the value or in
requiring extra repair (Art. 549).
D. Improvements no longer existing :
imbursement arises (Art. 553).

No right of re-

E. Improvements due to nature or to tirne: No right to


reimbursement arises. They accrue to the benefit of
the lawful possessor (Art. 551).
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III. SUMMARY OF THE EFFECTS OF POSSESSION


AND THE RULES ON REFUNDS
POSSESSOR IN
GOOD FAITH

SUBJECT
1. Fruits
Gathered.

POSSESSOR IN
BAD FAITH

1. To Possessor.

1. To owner (received
and might have received) .

2. Cultivation
Expenses.

2. Reimbursed to
Possessor (Art.
545).

2. Reimbursed. to Possessor (Art. 443,


549)

3. Fruits Pending &


Charges.

3. Prorated according
to Time (Agricultural Year) (Art.
545).

3. To
owner
362).

4. Production
Expenses.

4. Indemnity pro rata


to Possessor (owner's Option).
a) In money OR
b) By allowing full
cultivation and
gathering of all
fruits (Art. 545) .

I 4.

(Art.

No indemnity (Art.
449)
in case of
pending fruits.

5. Necessary
Expen ses Preserva.t ion).

'~-I
(Increase Produc
vity or objective vaIU~). .
.

6. Reimbursedo t Pos-

I.

sessor.
(Owner's
Option)
a) Initial cost or
b) PLUS
value
(Retention) . .
(Art. 549).
May remove if
no
reimbursement (Art. 547)
and no damage is
caused to the
principal by the
removal.

110

7. Ornamental Expen
ses (increase subjective value).

POSSESSOR IN
GOOD F A I T H

POSSESSOR IN
BAD FAITH

7. Reimbursement
at
Owner's option:
a) Removal if no injury, OR
b) Cost without removal (Art. 548)

7. Owner's Option
a) Rem ova l OR
b) Value at time of
recovery
(Art.
549).

8. 'T axes & charges


8. Taxes & charges 8. Taxes & charges
a) 'Charged to
a) Charged to owna) On capital.
owner.
er.
b) On Fruits
b) Charged to own
b) Charged to Pos(including yearly
er.
sessor.
taxes) .
c) To owner (bec) Prorated.
c) Charges.
cause of Nos. 3
and 4).
9. Improvements
no
longer . existing.

9. No

10. Liability for _ accidental loss or dete-

10. Only if acting with


fraudulent intent .01'
negligence,
after
summons (Art. 552)

10. Liable in every


case (Art. 552).

11. To owner or lawf u l possessor (Art.


551).

11. To owner or law.ful possessor:

riora~~on.

5. Reimbursed to Pos- 5. Reimbursed to Possessor


( Retention,
sessor (No retention) (Art. 546).
Art. 546) .

SUBJECT

._ - - - - -- -

--

11. Improvements due


to time or nature.

6. No Reimbursement
(Art. 549)

reimbursement.

9. No

reimbursement.

ART. 555. A possessor may lose his possession.:


(1) By the ~ o f the thing;
(2) By an ~lgnm~madeto another either by
onerous or gratuitous title;
(3) By

thE\~ or total loss of the thing,

or because it goes 'out of commerce;


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(4) By the possession of another, subject to the

animals are considered domestic or tame, if they


retain the habit of returning to the premises of the
possessor, (465)
ART. 561. One who recovers, accordihg to law.
possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have
enjoyed it withont intenuption. (466)

provisions of article 537, If the new possession has


lasted longer than one year But the real right
of possession is not lost till after the lapse of ten
years. (460a)
ART. 556. The possession of movables is not deemed lost so long . as they remain under the control
of the possessor even though for the time being
he may not know their whereabouts.
(461)
ART. 557. The possession of immovables and of
real rights is not deemed lost, or transferred for
purposes of prescription to. the prejudice of third
persons
except in accordance with the provisions
person~,
of the Mortgage Law and the Land Registration
laws. (462a)
ART. 558. Acts relating to possession, executed
or agreed to by one who possesses a. thing helonging to another as a mere holder to enjoy or keep
i t in any character, do not bind or- prejudice the
owner, unless he gave said holder express authority
to do such acts, or ratifies them subsequently.
(463)
ART. 559. The possession of movable property acquired in good faith is equivalent to a. title. Nevertheless, one who has lost any movable or has been
unlawfully deprived thereof, may recover it from
the person in possession of the same.
If the possessor of a movable lost or of which
the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner
cannot obtain its return without reimbursing the
price paid therefor. (464a)
ART. 560. Wild animals are possessed only while
they are under one's control; domesticated or tamed
112 '

1. Loss of Po,s session:

A. General Causes (Art. 555)


a. By the will of t he possessor.
1) Abandonment of the thing (loss of hope
and intent to recover) (U.S. vs. Rey, 8 Phil.
500) .
2) Transfer or conveyance, made gratuitously
or for consideration.
Requisites:
i) Possession in the concept of owner;
ii) Capacity to alienate (Manresa).
b, Against the will of the possessor.
1) Eminent domain;
2) Acquisitive prescription by another
verse ' possession) ;

(ad-

3) Judicial decree in favor of better right;

4) Possession of another for more than one

year
i) This refers to possession "de facto" and
not "de jure" (Caballero vs. Abellana, 15
Phil. 534) ,
ii) The possessor in this case loses the
right to a summary action; but he may
still bring accion publiciana or reivindicatoria, until the action prescribes by
ordinary or extraordinary prescription
(Rodriguez vs. Taino, 16 Phil. 301).
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iii) It also destroys constructive possession

(Leola vs. Ibanez, 48 OG 2811).


c. By reason of the object.

1) Destruction or total loss of the thing;


2) Withdrawal from commerce;
.
3) Escape of a wild animal (Art. 560).

B. What does not cause loss of possession?


558).
'

(Arts. 537,

a. Acts executed by stealth and without the know- ,


ledge of the possessor.
b. Acts merely tolerated, either by the possessor
(Art. 537) or by his representative or holder in
his name, unless authorized or ratified (Art. 558).
1) Tolerance means permission. Silence or in-

action is not tolerance but negligence, and


will not bar adverse possession (Manresa).
It is a question of fact.
"What is difficult is the tracing of the dividing line between tolerance of and abandonment by, the owner of his rights, when the
acts of the holder are repeated, and much
more so when .time lapses affirming and consolidating a relation which may be doubted
whether or not the same was legitimate in its
origin. Whether there was license or permisThe
sion is most difficult to determine.
judges and the courts will determine then
whether or not there was in each case mere
tolerance or a true abandonment of the right
on the part of the owner." (Manresa).

c. Violence. Under sec. 41, Act 190, it could give


rIse to prescription: "ten years actual adverse
,possession . ... in whatever w ay such occupancy
may have commenced or continued shall vest in
114

every actual occupant or possessor of such a land


a full and complete title." .Provided the possession is open, public (Le. not by stealth) and
adverse to all other claimants (Le. not tolerated)
(Conspecto vs. Fruto, 31 Phil. 144). This rule is
now modified by Art. 536 whereby such possession is not recognized "as long as there is a
possessor who objects thereto".
d. Temporary ignorance of the whereabouts of movable property (Art. 556) while under the control of the possessor (i.e. so long as it does not
come under the control of anotherManresa).
1) The article assumes that the thing remains

in one's patrimony (Sanchez Roman).

e. Effect of Recovery The possessor who recovers


possession is considered as having had uninterrupted possession despite these acts of violence,
stealth or tolerance; but he must recover possession by due process, and not otherwise (Arts.
561, 536, 539).
II. Possession of Movables: Special rules for their acquisition from a non-owner (a non domino) (Art. 559) .
A. General Rule:
a. Possession of Imovables in good faith is equivalent
to title.
1) This rule must' be properly understood, as
follows (Manresa):
i) It does not lay down a presumption The

possessor has actual title, defeasible only


by the true owner.
ii) It refers to possession in the concept of
owner
iii) It (title) refers to a jU1'idical act of conveyance and not to a documenL.

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b. But one who has lost or has been unlawfully dep'rived of it, may recover it from whomsoever
possesses it, without reimbursement ordinarily
(U.S. vs. Rapinan, 1 Phil. 294).
1) The owner of the movable must prove: (1)
ownership of the thing and (2) loss 01' unlawful deprivation; or else bad faith of the
possessor. Title is not enough, unlike in real
property (Manresa) to justify recovery.
[Sotto v. Enage, (CA) 43 OG 5075J.
2) Unlawful deprivation has ,reference to Arts.
104 and 105, R.P.C. {restitution .of the object of a crime). "The. thing itself must be
restored, even though it be found in the possession of a third person who has acquired it
by lawful means,- saving to the latter his action against the proper person who may be
liable to him" (R.P.C. Art. 105, par. 2).
3) Where the owner acts negligently, or voluntarily parts with money or negotiable paper
he can not recover it from the possessor
(U.S. vs. Sotelo, 28 Phil. 147).
4) " Good faith" of the possessor is his "belief
that the person from whom he ,received the
thing was its owner, and could transfer valid title thereto" (Art. 1127).
c. The owner may recover the movable in case of
loss (mislaid property) or involuntary deprivation; but must REIMBURSE THE PRICE PAID:
1) If the possessor acquired the thing (1) in
good faith and (2) 'at a public sale (Le., at
auction with due notice to the public) .
d. The owner of property lost or illegally taken
CAN NOT RECOVER IT:
1) If acquired' in markets;
116

OUTLINE OF PHILIPPINE CIVIL LAW

2) If acquired in fairs (Art. 1505 Civil Code;


Code of Commerce, Art. 86) ;
3) If acquired from stores ofi) Legally registered merchants, OR
ii) Non-registered merchants whose stores
are advertised or open to the public for
eight (8) consecutive days (Code of
Commerce, Arts. 85, 86).
4) If the title is lost by prescription of 4 years
(in good faith) or 8 years (regardless of
good faith) (Art. 1132) .
5) If the possessor is a holder in due course of
a negotiable document of title t o goods (Art.
1518).
.
6) If the possessor acquired the goods by sale
under the order of a competent court or statutory power of sale (Art. 1505 [2]).
7) If the owner is by his conduct precluded
from denying the seller's title (estoppel).
(Art. 1505).

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OUTLINE OF PHILIPPINE CIVIL LAW

Title VI.-USUFRUCT
, CHAPTER 1

USUFRUCT IN GENERAL
ART. 562. Usufruct gives a light to enjoy the
property of another wIth the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides. (467)

I. Concept
De Buen: "Usufruct is a real right, temporary in
character, that authorizes the holder to enjoy all advantages derived from a normal exploitation of another's
property, a c c o r d i n g to i t s destination or purpose, and
imposes the obligation of restoring, at the time specified,
either thething itself or its equivalent."

II. Characte'ristics of U sulr.uct:


A. Essential characteristics:
a , It is a real right,
b. Of temporary duration,
.
c. To derive all advantages from the thing due to
normal exploitation.
B. Natural characteristics (not essential):
, a. The usufructuary must preserve t h e form or substance of the thing.
1) But preservation is a natural requisite, not
essential because "the title constituting it
or the l a w " may provide otherwis e (Art.
562).
' .
,
2) "Substance" is destination, and value of the
thing.
';
b. The usufruct is exstinguished by the death of the
usufructuary. Again, this is a natural element
not essential, because a "contrary intention" may
prevail (Art, 603).

III. Usufruct and lease distinguished:


A. By the nature of the rightUsufruct is always a
real right; lease may create a quasi-real or a personal
right.
B. By the creator of the rightThe person constituting
the usufruct must be the owner; he who constitutes
a lease need not be an owner.
C. By the causeUsufruct i nvolves a more or less passive owner who allows the usufructuary to enjoy the
thing ("deja gozar") ; lease involves a more active
owner or lessor who makes the lessee enjoy the thing
("hace gozar").
D. By the extent of enjoyment-Usufruct generally covers all the utility of which the. thing is capable;
lease generally covers a particular utility.
E. By the originUsufruct may he created by law, by
the will or the parties, orby prescription; lease may
only be created by the will of the parties (except in
the case provided under Art. 448).
F. As regards repairs and taxesA usufructuary pays
for ordinary repairs and taxes o n the fruits; these
are generally not borne by a lessee.
IV. U sufruct and servitudes, distinguished :
A. As to the objectUsufruct may involve real or personal property; servitudes may only involve real property.
B. By the extent or enjoymentUsufruct covers all the
uses of the thing; servitudes are limited to a particular use.

563. Usufruct is constituted by law, by the


will of private persons expressed in acts i n t e r v ivos
or in a last will and testament, and by prescription.
(468)
ART.

119

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ART. 564. Usufruct may be constituted on the


whole or a part of .the fruits of the thing, ~n favor
of one or more persons, simultaneously or successively, and in every case from or .to a certain day,
purely or conditionally. It .m ay also be constituted
on a right, provided it is not strictly personal or
intransmissible. (469)

I. Classes (Arts. 563, 564).


A. By reason of the persons enjoying the right.

a. SimpleOne usufructuary enjoys it.


b. MultipleSeveral usufructuaries enjoy it.
' 1) Simultaneous
2) SuccessiveUsufructs constituted

in this
manner can not go beyond limits laid down
by Art. 756 and Art. 869. Hence
i) In donationOwnership of property
may be donated to one person and the
usufruct .to another or others, provided
all the donees are living at the time of
the donation (Art. 756).
ii) In testamentary succession-If the testator gives a usufruct to various persons successively, ' the provisions 011
fideicommissar y substitutionArt. 863)
shall apply (Art. 869) (not more than
two successive usufructs by usufructuaries living at the testator's death).
B. By reason of the object.
a. On rights These should not be personal or intransmissible in character (Art. 564).
b. On things.
1) Nor malConstituted on non-consumable property.
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OUTLINE OF PHILIPPINE CIVIL LA W

2) Abnor mal (irregular)-Constituted on consumable property (e.g. money; Alunan vs.


Veloso, 52 Phil. 545). This is sometimes referred to as " quasi-usufruct" (Art. 574).
C. By its extent.
a. As to the fruits1) TotalInvolving all the fruits of the thing.
2) PartialInvolving part only (Art. 564).
b. As to the object1) UniversalConstituted over the entire patrimony (Art. 598).
2) SingularConstituted over individual things
or rights.
D. By
a,
b.
c.

its terms.
Pure;
Conditional;
With a term (period) (Art. 564).

E. By its origin.
a. Voluntary
1) Inter vivos.
i) By alienation of the usufruct.
ii) By retention of the usufruct (alienation of naked ownership).
2) Mortis causa.
NOTE: Where a usufruct is constituted inter vivos and for valuable consideration, the
contract is unenforceable unless in writing
(statute of Frauds) (Art. 1403, par. 2(e) .
.

b. Legal (e.g., the usufruct of parents over the


property of their unemancipated chIldren, Art.
321).
c. Prescriptive (acquired by prescription):
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lease he or his heirs and successors shall r eceive


only 'the propoytionat e share of the rent that must
be paid by the lessee, (473)
ART. 569. Civil fruits
are deemed to accrue
daily, and belong to the usufructuary in proportion
to the time the usufruct may last. (414)

565. The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in
case it is deficient, the provisions contained in the
two following Chapters shall be observed. (470)
ART.

CHAPTER

570. Whenever a usufruct is constituted on


the right to receive a r ent or periodical pension,
whether in money or in fruits, or in the inter est
on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or
fruits of such right.
Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial
or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have fixed~
the s a m e character.
In either case they shall be distributed as civil
fruits, and shall be applied in the manner prescribed in the preceding article. (475 )
ART. 571. The usufructuary shall have the right
to enjoy any increase which the thing in usufruct
may acquire through accession, the servitudes established in its favor, and, in general, all the benefits inherent therein. (479)

ART.

RIGHTS OF THE USUFRUCTUARY


ART. 566. The usufructuary shall be entitled to
all the natural, industrial and civil fruits of the
property in usufruct. 'With respect to hidden treasure which may be found on the land or tenement.
he shall be considered a stranger. (471)
ART . 567. Natural or industrial fruits growing
at the time the usufruct begins, belong to the usufructuary.
Those growing at the time the usufruct terminates, belong to the owner.
In the preceding cases, the usufructuary; at the
beginning of the usufruct, has no obligation to refund to the owner any. expenses incurred; but the
owner shall be obliged to reimburse at the termi- .
nation of the usufruct, from the proceeds of the
growing fruits, the ordinary expenses of cultiva- .
tion, for seed, and other similar expenses incurred
by the usufructuary.
The provisions of this article shall not prejudice
. the right of third persons, acquired either at the
beginning or at the termination of the usufruct.
(472)
.
ART. 568. If the usufructuary has leased the
lands or tenements given in usufruct, and the usufruct should expire before the termination of the

122

ART. 572. The usufructuary may personally en~oy the thing in usufruct, lease it to another, or
joy
alienate his right of usufruct, even by a gratituous
title; but all the contracts he may enter into. as
such usufructuary shall terminate upon the expiration of the usufruct saving leases of rural iands,
which shall be considered as subsisting during the
agricultural year. (480) '
I

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Rights of the usu/1'uct~{,a1'Y as to thing and its fruits:

Possession and Enjoyment (personally or through


another)-

a. To receive and benefit from the fruits, whether


natural, industrial or civil; but not hidden treasure, as to which the us'u fructuary is a stranger,
entitled to 1/~ as finder (Art: 566). (As to the
spouse under a conjugal partnership system, see
"Accession". )
1) Fruits pending at the beginning-belong to
the usufructuary, without reimbursement of
expenses to the owners, but also without prejudice to third persons (Art. 567).
2) Fruits pending at its terminationbelong to
the owner.
i) The owner shall reimbu1'se to the usufructuary ordinary cultivation expenses
from the proceeds ,of the fruits (not to
exceed the value of the fruits).
3) Civil fruits are prorated according to time
(Arts. 569, 568). There is no prorating of
natural or industrial fruits.
b. To enjoy any ,increase through accessions and
servitudes, including products of hunting and
fishing.
c. To half of the hidden treasure he accidentally
finds (Art. 438).
B. To lease the thing (Art. 572).
a. Ordinarily the lease should be for the same (or
, shorter) period as the usufruct. The end of the
usufruct is the 'end of the lease; except in leases
of rural lands.
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OUTLINE OF PHILIPPINE CIVIL LAW

b. If the usufruct ends earlier, t h e lease of rural


land subsists only for the remainder of the agricultural year (Art. 572).
c. The usufructuary, not the naked owner, has the
right to choose the tenant (Fabie vs. David, 75
Phil. 536).
d. But the usufructuary ~nswers for injurious acts
of the lessee (Art. 590).

. n. Ri~hts

of the usufrilctuary as rega,r ds the usufruct it


self.
A. To mortgage the right of usufruct (Art. 572 and M.
'L. Art. 106) except parental usufruct, because of
,personal and family considerations.
B. To alienate the usufruct.
l
a. But parental usufruct (Art. i 320) is not alienable
(Manresa; Morell, Campuzano; TS 7 July 1892,
27 Sept. 1893).

ART. 573. Whenever the 'usufruct includes things


which without being consumed, gradually ,deterIOrate through wear and tear, the usuf~uctual'Y shall
have the right to make use thereof ~n accordance
with the purpose for whIch they are mtended, ~nd
shall not be obliged to r,e turn them ~t the t~~mma
tion of the usufruct except in . theIr co~dItIOn.at
that time' but he shall be oblIged to I~demmfy
the owner'for any deterioration they ~ay have ~uf
fered by reason of his fraud or neglIgence. (481)
ART. 574. Whenever the usufruct 'inc~udes things
which cannot be used without b~ing c~nsumed, the
usufructuary shall have the light to make US~ of
them under the obligation of paymg their appraised
, value at the termination of the usufruct. If they
were appraised when delivered. In case they were

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not appraised, he shall have the right to return thE


same quantity and quality, or pay their current
price at the time the usufruct ceases. (482)
ART. 575. The usufructuary of fruit-bearing
trees and shrubs may make use of the dead trunks.
and even of those cut off or uprooted by accident,
under the obligation to replace them with new
plants. (483a)
ART. 576. If in consequence of a calamity or extraordinary event, the trees or shrubs shall have
disappeared in such considerable number that it
would not be possible or it would be too ' burdensome to replace them, the usufructuary m~y leave
the dead, fallen or uprooted trunks at the disposal
of the owner, and demand that the latter remove
them and clear the land. (484a ) , '
ART. 577. The usufru.ctuary of woodland may
enjoy all the benefits which it may produce according to its nature.
If the woodland is a ~opse or consists of timber
f o r building, the usufructuary may do such ' ordinary cutting or felling .as the 6\vn~r w'a s in the
habit of doing, and in default of this. he may do
so in accordance .with the custom ,o f the ' pl~ce, as
to the manner, amount and season.
, In any case th~ felling o~ cutting of trees shall
be made ,in such manner as not to prejudice the
preservatIOn of the land.
In nurseries, the usufructuary may make the
necessary thinnipgs in order that the remaining
trees may .p roperly grow.
w i t h the exception of the provisions of the preceding paragraphs, the usu.fructuary cannot cut
down trees unless it be to restore or improve some
126

OUTLINE OF PHILIPPINE CIVIL LAW

of the things in usufruct, and in such case he shall


first inform the owner of the necessity for the
work. (485)
ART. 578. The usufructuary of an action to recover real property or a real right, or any movable
property, has the right to bring the action and to
oblige the owner thereof to give him the authority
for this purpose and to furnish him whatever proof
he may have. If in consequence of the enforcement
of the action he acquires the thing cla~med, the
usufruct shall he limited to the fruits, the domInion remaining with the owner. (486)
ART. 579. The usufructuary may make on the
property held in usufruct such useful improvements
or expenses for mere pleasure as he may deem proper, provided he does not alter its form or subst~nce; but he shall have no right to be indemnified
therefor. He may, however, relnove such improvements, should it be possible to do so without damage to the property. (467)
ART. 580. The usufl'uct~al'Y ~n~y set off the improvements he may have made .o n the. property
against any damage to the same. (488)
1. Other . rights of the usufructuary as regards the thing
under usufruct:

A. To improve the thing (Art. 579).


a. The usufructuary must not alter form or substance, unless, he is authorized (Art: 581)
b. No right of indemnity for imp?'ovements arises,
1) But the usufructuary ?nay remove them if
no damage is caused to the property (Art.
579}.

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2) He may (alternatively) compensate (set off)


improvements against damages for which thE
usufructuary is liable (Art. 580).
i) The excess of the value of the improvements over the damages is paid to the
usufruct~ary only if the improvement
is removable; if not, the excess accrues
in favor of the landowner (Manresa).
II. Summary of the rights of the usufructuary:
A. On the thing-

a. Possession and enjoyment (Arts. 566-571) ;


b. The right to lease the thing (Art. 572);
c. The right to improve the thing (Art. 579).

B. On the right of usufruct itselfa. To mortgage (encumber) it;


b. To alienate it (Art. 572) (except parental usufruct) .
c. As to special usufructs, see pos.t -(-page 129).

ART. 581. The owner of property the usufruct


of which is held by another, may alienate it, but he
cannot alter its form
8ubstance~ or do anything
thereon which may be prejudicial to the usufructuary. (489)

or

1. Rights of the owner during the usufruct:


A. He retains title to the thing or property.
B. He may alienate the property; but he maya. Not alter form or substance of the thing;
b. Nor do anything prejudicial to the usufructuary
(Art. 5S1).
C. He may construct buildings, make improvements and
plantings.
.
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Provided:
a. The value of the usufruct is not impaired, and
b. The rights of the usufructuary are not preju.
diced.
ART. 582. Tlie usufructuary of a part of a tlJing
held in common shall exercise ~ll the rights pertaining to the owner thereof w i t h re~pe~t to ~he
administration and the collection of frUIts or m~
terest. Should the co-ownership cease by reason of
the division of the thing held in co~mon, the usufruct of the nart allotted to the co-owner shall belong to the ~sufructuallr. (490)

I. Special usufructs:
A. Usufruct of pension 01' (periodic~l) income (Art.
570).
.
a. Each payment.shall be considered as fruits.
b. The distribution ~ of ben.e fits . (dividends) of industrial or commercial "enterprises shall also be
deemed fruits.
1) Hence, stock dividends belong to the usufructuary (Del Saz Orozco v. Araneta, G. R. No.
L-3691, Nov. 21, 1951).
c. App~rtionment shall b e on the basis of the ordinary rules governing civil fruits (Le., day to day).

B. Usuf1'uct of prope1ty owned in common (Art. 582).


a. The usufructuary takes the place of the owner as

to
1) Management;
2) Fruits, and
3) Interest.
b. After partition, the usufruct is transferred to
the part allotted to the co-owner.
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C. Usufruct of cattle (livestock) (Art. 591).


a. On sterile stock, the same rules on consumable
. property govern (Le. replacement upon termination). (See pp. 131-132).

F. Usufruct on mortgaged proper.ty (Art. 600).


a. The owner is liable for damages in case of foreclosure.
b. The usufructuary is not liable for mortgage
debts.
G. Usufruct over the enti1'e patrimony (Art. 598).
a. General rule: The usufructuary is not liable for .
the: owner's debts. .
b. Exceptions:
1) When it is so stipulated; in which casei) The usufructuary shall be liable for the
debt specified.
ii) If there is no specification, he is liable
only for debts incurred by the owner
before the usufruct was constituted.
. 2) When the usufruct is constituted in fraud
of creditors.
c. Limitation:
1) In no case shall the usufructuary be responsible for debts exceeding the benefits under
the usufruct.
i) Except when the contrary intention ap-

.b. On fruitful stock1) Replace ordinary (usual) losses with the


young.
2) If a part of the stock perishes, the usufruct

subsists on the remainder.


3) If all perish, the usufructuary should deliver

the remainst o the owner.


i) The loss must b e due to "some uncommon event in the above two cas~s.

D. Usufruct on vineyards and woodlands (Arts. 57,5-576).


Note: It should be observed, firstly, that this is of
rare application now to forest lands because of the
"Regalian Doctrine" governing natural resources
under the Constitution. Secondly, Section 47 of the
Revised Administrative Code requires a license for
gathering forest products.
a. The usufructuary should follow the practices of
the owner.
b. In default thereof, the custom of the place should
be observed.
c. The usufructuary must replace dead trees, unless it would be impossible or burdensome, in
which case he may demand that the owner clear
the land.
E. Usuf1'Uct on a right ofaction (Art. 578).
a. The usufructuary may compel the owner to support the action with the proofs he may have.
b. After the property is recovered; the usufruct is
upon the thing thus recovered.
130

pear~.

d. The same rule applies to any periodical payments


due from the owner.
H. Usufruct over deteriorable p1'ope1'ty (Art. 573).
a. The usufructuary must use it in accordance with
the purpose intended.
b. He is not obliged to return the thing except in
its condition at the termination of the usufruct.
c. He must indemnify the owner for deterioration
due to his (usufructuary's) fraud or negligence.
1. Usufruct of consumable property (Art. 574) ("Quasi-usufruct").
.
a. If the things were appraised at delivery, the usufructuary must pay their appraised value at the
termination of the usufruct.

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...

b. If they were not appraised, he must return the


same kind and quality OR pay the current price
at the expiration of the usufruct.
c. In reality, the nature of the transaction is that
of s i m p l e loan." Such usufructs have been included in the Code because universal usufructs
often include consumable property (Manresa).
CHAPTER 3

OBLIGATIONS OF ,THE USUFRUCTUARY


ART. 583. The usufructuary, before entering
upon the enjoyment of the property, is obliged:
(1) To make, after notice to the owner or his
legitimate representative, an inventory of all the
property, which shall contain an appraisal of the
movables and a description of the condition of the
immovables ;
(2) To give security, binding himself to fulfill
the obligations imposed upon him in accordance with
this Chapter. (491)
ART. 584. The provisions of No. 2 of the preceding article shall not apply to the donor who has
reserved the usufruct of the property donated, 01'
to the parents who are usufructuaries of their children's property, exc~pt when the parents contract
a second marriage. (492a)
ART. 585. The usufructuar y, w h a t e v e r may be
the title of the usufruct, may be excused from the
oblig~,tion of making an inventory or of giving-security, when no one will be injured thereby. (493)
ART. 586. Should the usufructuary fail to give
~ecurity in the cases in which he is bound to give
it, the owner may demand that the immovables be

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placed under administration, that the movables be


sold, that the public bonds, instruments of credit
payable to order Ol~ to bearer be converted into registered certificates or deposited in a bank o~' public
institution, and that the capital or sums m cash
and the proceeds of the sale of the movable property be invested in ~afe securities.
The interest on the proceeds of the sale of the .
movables and that on public securities and bonds,
and the proceeds of the property placed under administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefer~,
until the usufructuary gives security or is excused
from so doing, retain in his possession the prop~rty
in usufruct as 'a dministrator, subject to the oblIgation to deliver to the usufructuary the net proceeds
thereof, after deducting the sums which may be
agr eed upon or judicially allowed him for such ad
.1
ministration. (494)
,
ART. 587. If the usufructuary who has not given~V~Il'
security claims, by virt~e of a promise under oath,
l
the delIvery of the furniture necessar
,
and that he and his family e a owed to live in a
house included in the usufruct, the court may grant
this petition, after due consideration of the facts
of the case.
The same rule shall be observed with respect to
implements, tools and other movable property necessary for an industry or vocation in which he is
engaged.
If the owner does not wish that certain articles
be sold because of their artistic worth or because
they have a sentimental value, he may demand their
delivery to him upon his giving security for the
payment of the legal interest on their appraised
value. (495)
,
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ART. 591. If the usufruct be constituted on a


flock or herd of livestock, the usufructuary shall
be obliged to replace with the yeung thereof the
animals that die each year from natural causes, or
are lost due to the rapacity of beasts of prey.
If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious disease
or any other uncommon event, the usufructuary
shall fulfill his obligation by delivering to the owner the remains which may have been saved from
the misfortune.
. Should the herd or flock perish in part. also by
accident and without the fault of the usufructuary,
the usufruct shall continue on the part saved.
Should the usufruct be on sterile animals, it shall
be considered, with respect to its effects, as though
constituted on fungible things. (499a)
ART. 592. The usufructuary is obliged to make
the ordinary repairs needed by the thing given in
usufruct.

By ordinary repairs are understood such as are


required by the wear an~ te~r due to the natural
use of the thing and are mdlspensable for Its preservation. Should the usufructuary fail to make
them after demand by the ownel', the latter may
make them at the expense of the usufructuary.
(500)
ART. 593. Extraordinary repairs shall be at the
expense of the owner. The usufructuary is obli~ed
to notify the owner when the need for such repaIrs
is urgent. (501)
ART. 594. If the owner should make the extraordinary repairs, he shall have a right to demand
of the usufructuary the legal interest on the amount
expended for the time that the usufruct lasts.
Should he not make them when they are indispensable for the preservation of the t~ing, the usufructuary may make them; but he shall have a rIght
to demand of the owner, at the termination of the
usufruct the increase in value which the immovable may have acquired by reason of repairs. ,(502a)
ART. 595. The owner may construct any works
and make any improvements of which the immovable in usufruct is susceptible, or make new plantings thereon if it be rural, provided that such acts
do not cause a diminution in the value of the usufruct or prejudice the right of the usufructuary.
(503)
.
ART. 596. The payment of annual charges and
taxes and of those considered as a lien on the fruits.
shall be at the expense of the usufructuary for all
the time that the usufruct lasts. (504)
ART: 597. The taxes which, during the usufruct.
may be imposed directly on the capital, shall be at
the expense of the owner.

134

135

ART. 588. After the security has been given by


the usufructuary, he shall have a right to all the
proceeds and benefits from the day on which, in
accordance with the title constituting the usufruct,
he should have commenced to receive them. (496)
ART. 589. The usufructuary shall take care of the
things given in usufruct as a good father of a family. (497) .
ART. 590. A usufructuary who alienates or
leases his right of usufruct shall answer for any
damage which the thiI~gs in usufruct may suffer
through the fault or negligence of the person who
substitutes him. (498)

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If the latter has paid them, the usufructuary


shan pay him the proper interest on the sums which
may have been paid in 'that character; and. if the
said sums have been advanced by the usufructua- '
ry, he shall recover the amount thereof at the termination of the usufruct. (505)
ART. 598. If the usufruct he constituted on the
whole of a patrimony; and if at the time of its
constitution the owner has debts, the provisions of
articles 758 and 759 relating to donations shall be
applied, both with respect to the maintenance of the
usufruct and to the obligation, of the m~ufructuary,
to pay such debts.
The same rule shall be applied in case the owner
is obliged, at the time the usufruct is constituted,
to make periodical payments, even ,if ' there should
be no knovvn capital. (506)
ART. 599. The usufructuary may claim any matured credits which form a part of the usufruct if
he has given or gives the proper security. If h e
has been excused from giving security or has not
been able to give it, or if that given is not sufficient, he shall need the authorization of the owner,
or of the court in default thereof, to 'collect such
credits.
The usufructuary who has given security may
use the capital he has collected in any manner he
may deem -proper. -The usufructuary who has not
given security shall invest the said capital at interest upon agreement with the owner; in default
of such agreement, with judicial authorization; and,
in every case, with security sufficient to preserve
the integrity of the capital in usufruct. (507)
ART. 600. The usufructuary of a mortgaged immovable ~hall not he obliged to pay the debt ,f or
,the security o f which the mortgage was constituted.

Should the immovable ' be attached or sold judicially for the payment of the debt, the owner shall
be liable to th~ usufructuary for whatever the later mav lose by reason thereof. (5U9)
ART. 601. The usufructuary shall be obliged to
notify the owner of any act of a third person, of
which he may have knowledge, that may be prejudicial to the rights of ownershIp, and he shall
be liable should he not do so, for damages, as If
they had been caused through his own fault. (511)
ART. 602. The expenses, costs and liabilities in
~uits brought with regard to the usufruct shall be
'borne by the usufructuary. (512)
,

136

I. Obligations of the u s u f r u c t u a r y b e f o r e exercising


usufruct: ' .

the

A. To make ~nventor1J (Art. 583).


a. The immovables must be described; the movables
must be appraised (because movables are easily
lost or deteriorated).
b. The owner ,must be previously, notified but need
not be present.
c. 'Form: Any form except when immovables ' are
involved, when a public instrument is prescribed
(Art. 1358) to affect third persons.
d. Exception: No inventory is necessary when no
one would be prejpdiced (Art. 585) (as in usufruct of pension or incorporeal rights).
e. In case of failure to make the inventory, the effect
is the same as in failure to file a bond (see post,
page 138) '.

, B. To give a ~or the performance of the usufructuary's duties


'
a. Exceptions: No bond is required in the followi~g
cases:

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1) When no prejudice would result, e.g., usufruct over life annuity (Art. 585).

3) The usufructuary can not collect credits

2) 'When the usufruct is reserved by:

i) The donor (Art. 584). Reason: Gratitude


on the donee's part demands that the
donor be excused from filing the bond.
ii) The parents (unless they remarry);
provided the child's property does not
exceed P2,000 (Arts. 585 and 326). .

~- (Bond by
oath).
.
i) In this instance, the usufructuary claims
necessa1'y furniture, a dwelling for him. self and his family, implements necessary for his trade.
ii) He takes an oath to take care of the
things and restore them (Art. 587).
iii) He cannot alienate nor lease the thing
or the right under usufruct; for that
would mean that he does not need the
dwelling, implements, and furniture '
(Manresa).

3) In case of

. b. Effect of the bond: Retroactivity (Art.. 588).


The usufructuaryis entitl~d to all the fruits from
the time he should have begun to receive them.
c. Failure to giv~ bond: Effect (Art. 586).
1) The owner shall have the following options:
i) ReceiveTship of realty, sale of movables,
deposit of securities, or. investment of
money; or
ii) Retention of the property as administrator.
2) The net product (fruits) less administration
expenses, fixed by agreement or by the
Court, shall be delivered to the USUfructuary,
138

ue,
or make invest'm,ents of the capital without
the consent of the owner or of the Conrt (Art.
599) until the bond is given.
II. obligations 0 . the usufructuary during the usufruct.
A. 0 take c a r e of the thing as a good father of a family (Art. 589).
a. When damages are caused to the property by the
fault or negligence of the usufructuary, the naked
owner need not wait for the termination of the
usufruct before bringing . the action to recover
the proper indemnity (Sanchez Roman, Navarro
Amandi).
b. Abusive acts entitle the owner to demand its ad/ . ministration, subject to the usufruct (Art. 610).
~R~ai1's-

va. 01'dinary-The

usufructuary must make them.


(Art. 592).
1) What a r e ordina.r y repairs?
i) These consist of repair of damages due
to normal use; and
ii) They are indispensable for preservation.
iii) Compare Art. 592 with Art. 573. Observe that Art. 573 refers to deteriorations of the thing caused by "wear and
tear," in spite of repairs.
2) I f the usufructuary fails to make ordinary
repairs, the owner may, after demand, make
them at the usuf1'uctuary's expense.
l b. Extraordinary repairs are for the acc~>unt of the
owner (Art. 593) but the usufructuary should
notify the owner of the urgent need.
1) What are extraordinary .repairs ?
i) These are required by exceptio'nal circumstances, whether or not necessary
for the preservation of the thing; or
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ii) Those required by natural use but not in-

dispensable for preservation (Manresa).


2) When made by the owner:
i) Legal inte1'est must be paid by the usufructuary on the amount, while the usufruct lasts (Art. 594, p. 1).
ii) This means that the usufructuary can
not compel the owner to mak~ extraordina.ry repairs.
3) Extraordinary repairs may be made by the
usufructuary (if they are indispensable and
the owner fails) but: '
i) The usufructuary may demand the plus
value at the end of the usufruct.
ii) He may also retain the property until
he is paid (Art. 594, p. 2).

C. .Taxes and Charges during usufruct:


a. The following are paid by th~ usufr.uctuary (Art.
596).
1) A nnual taxes and charges, including real
estate tax (Quirante vs. Quirante, 40 ' (CA)
, OG, 4th SUPP., No.8, p. 242).
The ruling in the, case of Rizal Mercado
v~. Hidalgo (67 Phil. 608) that the owner
should pay the land tax seems contrary to th~
. provisions. of the 'Civil Code.
2) Taxes on the fruits.
b. The following are payable by the owner: Taxes
directly on the capital (not annuai)1) If paid by the owner-he is entitled to interest on the payment (Art. 597).
2) If paid by the usufructuary-the latter is
entitled to reimbursement at termination;
with a right of reten.tion. (Art. 612).
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OUTLINE OF PHILIPPINE CIVIL LAW

D. The usufructuary mu~t notify the owner of the urgent


need for extraordinary repairs (Art. 593) and of any,
acts detrimental to the ownership (Art. 601).
/

E. The cost of litigation oveJ' the usufruct is borne by


the usufructuary (Art. 602).
F. The usufructuary answers lor the fault or negligence of the all~enee or lessee or agent '(Art. 590).
G. Rules gove1'ning the destruction of insz,ITed pToperty
befor~ the termination of usufruct (Art. 608).
a. When the insurance is taken by the tOWiiei1 AND
t~eftisufructuaryl [Art. 608, (1)]:
1) If the owner rebuilds-the usufi'uct subsists
'
on the new building.
2) If he does not rebuild-the interest on the

,insurance money is paid to the usufructuary.


b. When the insurance is taken QY the O1.vner only,
because' the usufructuary 1efl.lses (Art. 608, p.
2) .

to the insurance money (no interest thereon being due to the


usufructuary),.
2) If he does not rebuild, the usufruct continues
over the remaining land and materials; or
the owner may pay interest on the value of
both (Art. 607) .
3) If the owner rebuilds, the usufruct does not
continue on the new building; but 'the owne~
must pay interest on the value of the land
anq the old materials (See Art. 607).
c.When the insurance is taken by the usufmctuarY
only (this situation is not provided by the Code).
1) The insurance money goes to the usufructuary. This consists of the value of his insurable interest.
1) The owner is entitled

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2) There is no obligation to rebuild.


3) The usufruct continues on the land.
4) The owner has no share in the insurance
money.
H. Rules governing the destruction of a building not
ins111ed.
a. If the bUildi~g forms part of an immovable UI:lder
usufruct1) The usufruct continues over the lanel. and
remaining materials.
b. If the usufruct i~ qn the building 6nly1) If the owner does not rebuild,. the usufruct
continues over the land and the mateiiais. .
2) If the owner rebuilds; the usufructuary must
allow the . ownel~ to occupy the land and to
malte use of the materIals; but the owner
nlUst p'a y interest o;n the value of both the
land and the materials.
CHAPTER 4

EXTINGUISHMENT
OF USUFRUCT
.
'.

603. Usufruct is extinguished:


(1) . By the death of th usufrl1ctvary, unless a
contrary intention clearly appears;
. (2) By the expiration of the. period for which it
was constituted, or by the fulfIllment of ar:y resol\ltory condition provided in the titl creatmg the
u sufruct;
. (3) By merger of the usufruct and ownership
in t:Q.e. same person;
(4) By renunciation. of the usufructuary; .
(5) By the. total loss of the thing in usufruct;
ART.

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OF PHILIPPINE CIVIL LAW

(6) By the termination of the right of the person constituting the usufi.'uct;
(7) By prescription. (513a)
I. Causes of the termination of usufruct.

.A. Death of the usufructuary; EXCEPTa. In multiple usufructs: it ends at the death of the
last survivor (Art. 611).

.'

b. If the period is fixed by reference to the life 'of


another or there is a ' resolutory 'condition: the
, right is transmitted to the heirs of the usufructuary Ulltil the expjration of the term or' the fulfillment of the condition (Art. 6Q6).
c. When a contrary intention ' clea,r ly appears.
1) The Romans, 'Italians and the French held
that usufruct is personal and therefore death
always produces' the termination 0f the usufruct ' even if there is ail agreed period or res0lutory condition. '
Mam'esa and other commentator:s hold the
contrary, basing their opinion on the ob.servation that since the Code recognizes the
alienability of usufructuary rights, the usufruct can no longer be considered strictly
personal. Moreover, they invoke the binding
effect of contracts to support the opinion
that the period will control over the death of
the usufructuary, unless the contrary is sti. pulated. .
Valverde on t!:J.e other hand assumes that'
. extinction by death of the uSlrfructuary is
a nat1tml feature of usufructs, and that even
if a period is agreed lJPOO1, death will terminate the usufruct, unless the contra1'y is
agreed. This also is the opinion of the Spanish Supreme Court (Sent. of Oct. 1, 19].9)

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and of the framers ,o f the new Civil Corle


(Art. 603, "unless a contrary intention clearly appears").
The new Code by stating as
cause of
extinction "the death of the usufructuary
unless the contrary clearly appears" seems
'to follow the eclectic opinion, making the
death prevail over the other causes of extinction, unless incompatible with the plain
intention of.. the parties. However, it is not
necessary to expressly exclude death as an
extinctive ground; clear intent suffices.

B. Expiration of the period or fulfillment of the resoluto?'y condition.


a. In f~vor of juridical persons, the period can not ex...
ceed 50 years (Art. 605). ,
b. The period and resolutory condition must be 'reco?'ded to prej udice strangers.
C. Merger of the usufruct and the nakecl o\vnership.
D, Waive?' of the usufructuayy.
a. Renunciation must be ea.~p?ess (Manresa). and
does not need the owner's consent (Navarro
Amandi).
b. If made in fraud of creditors; the waiver may be
'rescinded by them, through proper action under
Art. 1381.
,
c. If the right of usufruct is ?n01tgaged, the mortgage lasts until its payment, or the expiration of
the period of usufruct.
~.

Extinction or loss of the property.


a. Total loss of the building, insured or net (see
"Obligations during the Usufruct," ante, pars.
(G) and (H), page 141.
b. Partial loss: The usufruct continues on the remainder. '

144

c. Exp'ropriation: Owner's option (Art. 609):


1) To replace the thing with another thing having .the same value and conditions, or
2) To pay legal i..n ter est on the expropriation
money, giving security for payment.
3) But the condemnor may indem'n ify .<;~para~ely the owner and the usufructuary; in this
case, Art. 609 does not apply.
~----.,

F. Resolution (or termination) of the right to constitute


the usufruct (e.g. usufructs constituted by a vendee ,
a retro terminate upon redemption).
G. Prescription , (adverse possession against the owner
or the usufructuary).
'
NOTE: Abuse (improper use) is not a cause for extinction,. but if abuse 'results in considerable
loss, the owner may recover possession, pay...
ing the net fruits to the usufructuary. (Art.
610) .

ART~

604. If the thing given in ,usufructshould


be lost only in part, the right shall continue on the
remaining part. (514 )
ART. 605. Usufruct cannot be constituted in favor of a town, <;:orporation, or association for more
than fifty years. If it has been constituted, and
before the expira~ion of such period the town is
abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason
thereof. (515a)
ART. 606. A usufruct granted ;for the time that
may elapse before a thii'd person attains a certain
age, shall subsist for the number of years specified, even if the third person should die before theperiod expires, unless such usufruct has been ex-

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pressly gratlted only inconsideration of the exis- ,


tence of auch persop. (516)
ART. 607. If the usufruct is constituted on im ,
'movable property of which a buildi:lg forms part,
and the latter should be destl'nyed m any manner
whatsoever the usufructuary shall h3:;ea right to
make m::e ~f the land and the materials.
The same rule shail be applied if the usufruct i:3
constituted on a building only aI:d the f:;ame should
be destroyed. But in such a case, If the owner should
'wish to construct another buil4ing, he shall have
a right to occupy the land and to make use of ,the
materials, being obliged to pay to th~ usufl'uctl~ary,
during the conti.nuance. of the USUfruct, the :ntE'rest upon the sum eqUlvalent to the value of the
land and of the materials. (;)17) ,
ART. 608. If the usufructuary , shal~es w~th the
O'wne1' the insurance of the tenement glVen ~ t1 us~
fl'uct, the former shall, in cas~ ~f loss, contUlUe m
the enjoyment o~ the r.e~v bUlld~11g, sh?uld ~ne .be
constructed, or shall receIve the mterest on ,,~e m,
~urance indemnity if the owner does not WIsh to
rebuild.
Should the usufructuary have' refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall .receive the full amount
\)f the insurance indemnity in case of loss, saving
always the right granted to the usufructuar~7 in
th '1"e .
article. (518a)
,
A~T: 609. Should the thing in usufruct be exi'o}}date or public use, .the owner sh~ll be ob11 "
1 her to replace it With another thmg of the
same value and of similar conditions, or to pay the
usufructuary the legal interest on the amount of
the indemnity for the whole period of the usufruct.
146

OUTLINE 01'-' PHILIPPINE ' CIVIL LAW

If the owner chooses' the laUel' alternative, he shall


give sec'!1rity for the payment of thE; interest. (519)
ART. 610. A usufruct is not extinguished by bad
use of the thing in usufruct; but if the abuse should
cause consid(~l'able injury to the owner, the latter
may demand that the thing be delivered to him
binding himself to pay annually to the usufructuar):
the' net proceeds of the same, arter deducting the
expenses and the compensation which may be allowed him for its administration. (520)
ART. 611. A usufruct constituted in favor of
several persons living at the time of its constitution shall not be extinguished until the death of the
last survivor. (521)
,
ART. 612. Upon the termination of the usufruct,
the thing in usufruct shall be delivered to the own,
er, without prejudice to the right of retention pertaining to the usufructuary or his heirs for taxes
and extraordinary expenses which should be reimbursed. After the delivery has been made. the se
curity or mortgage shall be cancelled. (522a)
1. Obligations of the usufructuary at the expiration of the
usufruct:
A. To 'ret-wt'n the thing, unless there is a right of RETENTION for the "plus value" due to the usufructuary's advances for extraordinary repairs, and for
taxes on the capital.
a. If the property is deteriorable (Art. 573)1) To return it in its present condition;
2) To answer for damages due to his fault.
b. If the property is consumable or consists of sterile cattle (Arts. 574 & ' 591) :
'
1) If appraised, to return the appraisal value;
2) If not appraised, the usufructuary's option
is--

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i) To restore an equal quantity and quality; OR


ii) To pay the market value at 'the termination.
B. To pay interest on the amount spent by the owner
for extraordinary repairs (Art. 594) or taxes on the
capital (Art. 597).
C. To indemnifY the owner fo'r losses due to the negligence of the usufructuary or of his transferees
(Arts. 589-5~0).
II. Rights of usufructuary alt the expiration of the usufruct.
A. To collect reimbursements from the owner:
-a. For indispensable extmo'rdina1'y repairs made by
the usufructuary, in an amount equal to the plus
value (Art.. 594, p. 2).
b. For taxes on the capital advanced, by the usufructuary (Art. 597, p. 2).
c. For damages caused to the usufructuary (Art.
581).
B. To 1'etain the thing until reimbursement 'is made.
C. To 1'emove improvements made by him, but without
injuring the property (Art. 579" last part) OR
l}. To set off the value of improvements against damages
caused to the property under usufruct (Art. 580) .
III. Obligations' of the owner at th~ expiration of the usufruct.
A. To make reimbursement of the advances by the usufructuary.
' B. To cancel the bond, upon diseharg,e of the usufructuary's obligations.
C. To respect leases of rural lands by the usufructuary
for the balance of the agricultural year (Art.' 572,
last part).
148

Title VII.-EASEIUENTS OR SERVITUDES


I

"

CHAPTER 1

EASEMENTS IN GENERAL
1. In-General.
~
A. Concept-A ~ is a real right constituted on
iii"other's tenement (corporeal immovable property)
whereby the owner Of the latter must refrain from
doing or must allow something to be done on his property, for the benefit of another person or tenement
(Sanchez Roman).

"Servitude is a burden imposed over a tenement


for the benefit of another belonging to a different
owner, and which obliges the owner of the servient
estate to suffer certain acts of use by the dominant
owner or to abstain from exercising certain rights
inherent to his ownership." (German Civil Code).
a. Servitudes (easements) under Philippine law differ from easements of Common Law in that-1) Common Law easements are in favor of a
dominant tenement (Predial servitudes).
2) Servitudes may , be predial, or personal (in
favor of persons or of a community, without
a dominant tenement).
i) Perpetual gr:ant of right to use windows on certain holidays is a personal
servitude (TS Nov. 30, 1908).
b. The right granted to maintain wires across a lot
constitutes a servitude (TS 29 Dec. 1899; 9 Apr.
1923; 21 Oct. 1920).
B. Elements of Servitudea. It is a real right of limited use, 'u-ithout

POSSe3-

sion:
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b. It is constituted over estates or tenements (lands


and structures only, i.e., immovables by nature) ;
c. It is for the benefit of another who is not ~he
owner of the encumb e1'ed estate.
d. It ~n not consist in the doing of an aci, unless
the act is accessory to a predial servitude (obligation p1'opte'l" rem). ~
C. Implications of Servitudea. As Real Right- .
1) It gives rise to actio in rem against any possessor of the servient estate.
b. As enjoyment of another's property (jus in re
alietllL)
.
1) It cannot .exist over' one's own property.
2) Merger extinguishes the servitude.
c. As a limitation upon the servient owner's rights
~or another's benefit:
1) Servitudes are not 'l!.resu~d, being an abnormal limitation on the rights of ownership.
2) They are i1}sepa1'able from the servient or
dominant ~state. '"
3) They must r.e sult ..in, utility
(benefit) to .the
-.
dominant estate, as distinguished from its
'present owner.
4) Their exercise is limited by the necessity
(needs) of the dominant owner or estate (TS
17 Nov. 1930) (Castan) .
D. Characteristic features .of servitudes.
Inherence (inseparability) (Art. 617).
They are inseparable from the tenement to
which .they actively or passively belong, as originally contemplated (Art. 626).

OUTLINE OF PHILIPPINE CIVIL LA \V

Q intmnsmissibility: Cannot be alienated separately from the tenement affected or benefited.


c. Indivisibility (Art. 618).
1) In case of division of the servient tenement
between twa or more persons: each shall bear
it on the part corresponding to him.
2) In case of division of the dominant tenement:
any of the new owners may use the servitude
in full; but without increasing the burden.
Perpetuity-unless extinguished in the modes
provided by the Code, the servitude lasts as long
.as the dominant and/ or servient estates exist.

.I

E. Servitude distinguished from lease of landa. A lease of land involves rightful possession and
use without ownership.. .
b. Servitude over land involves rightful use without
possession and ownership (Salmond).
Section I-Different Kinds of Easements
AR'}', 613. An easement or servitude is an encumbnmce imposed upon an immovabie for the
benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement
is established is called the dominant estate; th3t
which is subject thereto, the servient estate. (530)
ART. 614. Servitudes' may also be established for
the benefit of a community, or of one or more persons .to whom the enc:umbered estate does not belong. (531)
ART. 615. Easements maybe continuous or :discontinuous, apparent or nonapparent.
Continuous easements are those the use of-which ,
is or may be incessant; without the inter\'en~tion
of any act of man.
:>'"
\ ...
. -:

150

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Discontinuous easements are those which are


used at intervals and depend upon the acts of man.
Apparent eaS,ements are those which are made
known and are continually kept in view by external
signs that reveal the use and enjoyment of the same.
Nonapparent easements are those which show no
external indication of their existence. (532)
ART. 616. Easements are also positive or negative.
A positive easement is one which imposes upon
the' owner of the servient estate the obligation of
allowing something to be done or of doing it himself, and a negative easement, that which prohibits
lhe owner of the servient estate from doing something which he could lawfully do if the easement
/ did not exist. (533)
ART. 617. Easements are inseparable from the
estate to which they actively or passively belong.
(534)

ART. 618. Easements are indivisible. , If the servient estate is divided between two or more persons, the easement is not modified, and each of them
must bear it on the part which 'corresponds to him.
If it is the dominant estate' that is divided between two or more persons, each of them may use
the easement in its entirety, without changing the
place of its use, or \ making it more burdensome
in any other way. (535)
ART. 619. Easements are established either by
law or by the will of the owners. The former are .
called legal and the latter voluntary easements.
(536)
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1. Classification of Servitudes:A. By the exercise:

a. Continuous-their use is or may be incessant


without intervention of an act of man (drainage,
light and view, dam) (Art. 615).
b. Discontinuous-their exercise depends upon acts
of man, and their use is at long or short interv~ls (e.g. right of way, watering animals).
1) But easement of aqueduct is consider~
by law as continuous and apparent even If
the passage of water is not continuous, or it
is used at stated days or hours only (Art.
646).
'
,
B. By the indication of their existence:
a. Apparent-those made known and continual~y
kept in view by external signs which rev~al theIr
use and enjoyment. (e.g. right of way WIth permanent path; dam; window in a party wall).

b. Non-Apparent--those which show no external


sign of their existence (e.g. distance, non altius
tollendi).
C. By the object:
a. Positive-The serv:ie~t owner must (1) allow
something to be done in his property (servitus in
patendo) or (2) do it himself (servitus in faciendo) (voluntary servitudes only). These are
called "servitudes of intrusion and/or service."
b. Negative-the servient owner,must refrain from
doing something (in non faciendo). This is called a "servitude of limitation or restriction:"
'D. By their origin (establishment) :
a. Voluntary-Constituted by the will of the parties
or of a testator.
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b. Legal-Constituted by law:
1) F o r public 'u se-governed by special laws or
the Civil Code.
2) For private interest-governed by the Civil
Code or general or local laws, subject to modification by agreement (Arts, 634-636) if
the law is not violated and no damage is'
caused to third persons.
c. Mixed--partly voluntary and partly legal.
E. By the party benefited:
a. Real (predial)-servitude imposed on a tenement
for the benefit of another tenement belonging to
a different owner (easement proper).
b. Pe'r sonal-servitude imposed for the benefit of
a person or community to whom the servient
estate does not belong. See No.2, p. 149.
1) An agreement based on a consideration
whereby the owners of a piece-of land grant
a person the right to use a footpath binds said
owners. And to make s~ch right binding on
third persons who may acquire ' said land
from the grantors, the grantee of .the easement is entitled to have the same annotated
in the certificate of title (Bernardo vs. Court
of Appeals .et al. GR L-7248, May 28, 1955).
F. By the character Of the 'j'estriction on the servient
owner.
a. Servitudes of sufferance 01' intrusion (in patendo) , which allow the dominant owner to do
something inside the servient estate.
b. Servitudes of abstention (restriction) in which
the servient owner must refrain from doing
something he could normally do.
154

OUTLINE OF PHILIPPINE CIVIL LAW

.c. Servitudes of service which require the servient


owner to do something for the dominant owner
in relation to a predial easement.
Section 2.-Modes of Acquiring Easements

ART. 620. Continuous and apparent easements


are acquired either by virtue of a title or by prescription of ten years. (537a)
ART. 621. In order to acquire by prescrip~ion
the easements referred to in the preceding article,
the time of possession shall be computed thus: in
positive easements, from the day on which the owner of the dominant estate, or the person who may
have made use of the easement, commenced:to exercise it upon the servient estate; and in negative
easements. from the day on which the owner of
the dominant estate forbade, by an instrument acknowledged before a notary public, the owner (If
the servient estate, from exe~uting an act which
would be lawful without the easement. (538a)
ART. 622. Continuous nonapparent easements,
and discontinuous 011es, whether apparent or not.
may be acquired only by virtue of a . title, (539)
ART. 623. The absence of a document or proof
showing the origin of an easement which cannot he
acquired by prescription may be cured by a deed of
recognition by the owner of the servient estate or
hy a final judgment. (540a)
ART. 624. The existence of an apparent sign of
easement between two estates,. established or maintained by the ownet of both, shall be considered,
should either of them be alienated, as a title in order that the easement may continue actively and
passively, unless, at the time the ownership of the
two estates is divided, the contrary should be pro155

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vided in the title of conveyance of either of them,


or the sign aforesaid should be removed before the
execution of the deed. This provision shall also
apply in case of the division of a thing owned in
common by two or more persons. (541a)
ART'. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted. (542)
ART. 626. The owner of the dominant estate cannot use the easement except for the benefit of the
immovable originally contempla:ted. Neither can
he exercise the easement in any other manner than
that previously established. (n)
1. Acquisition of se1'vitudes:

A. Modes of acquisition: Servitudes are acquired bya. Title-a juridical act or provision of law sufficient to create the encumbrance, whether inter
vivos or mortis causa. This is essential to-1) Continuous nonapparent servitudes;
2) Discontinuous servitudes, wheth~r apparent
or not.
b. Prescription of 10 years. This is applicable only
to continuous and apparent easements or servitudes (Art. 620).
1) Exception.: The following are not acquired
by prescriptioni) Continuous but nonapparent servitudes
(e.g. "non altius tollendi," distances).
ii) Discontinuous servitudes, whether apparent or nonapparent (e.g., right of
way) (Art. 662). (Note: the Supreme ,
Court has ruled that although a right of
way' is a discontinuous easement it may
156

OUTLINE OF PHILIPPINE CIVIL LAW

be acquired in favor of a community by

'immemorial prescription (Municipality


of Dumangas vs. Bishop of J aro 34 Phil.
541). Actually, the decision is premised
on Art. ,567 of the old Code of 1889 (now
Art. 652).
aa) These servitudes require eitheraaa) Title (deed or testament or
provision of law) ;
aab) Deed of recognition of the
servient Qwner;
aac) Final judgment (Art. 623).
~) Computation of the prescriptive period (for
continuous apparent servitudes) :
i) Positive servitudes: counted from the
day their exercise commences.
ii) Negative servitudes: counted from the
formal p1"ohibition to the servient owner
to do any act opposed to the servitude
(Art. 621). There must be a notarized
demand made upon the servient owner.
c. The establishment of an apparent sign of a servitude between two tenements owned by the same
person, when one tenement is alienated gives rise
to an ,easement, unless (a) there are contrary
stipulations, (b) or the sign is effaced. Although
the law states that the easement is to "continue,"
actually the servitude arises for the first time
upon alienation (Art. 624).
'
1) Mere silence of the deed does not bar the
right to the easement.

B. Effect of acquisition:
a. Once acquired, the right to exercise the servitude
arises.

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1) VoluntaTY easements must be recorded in the


Registry of Property in order to prej udice
third persons (Arts. 2 and 23, Spanish Mortgage Law). Recording is not necessary for
legal easements.
b. It (servitude) includes all the rights necessary for
its use and exercise (repairs, maintenance, etc.)
(Art. 625).
Section 3.-Rights and Obligations of the Owners of the
Dominant and Servient Estates.

ART. _ 627, The owner of the dominant estate may


make, at his own expense, on the servient estate any
works necessary for the use and preservation of the
servitude, but ..withQllWa]~ring it or rendering it
more burdensome.
~
For this purpose he shall notify the owner of
the servient estate, and shall choose the most convenient time and manner so as to cause the least
inconvenience to the owner of the servient estate.
(543a)
,

OUTLINE OF PHILIPPINE CIVIL LAW

ART. 629. The owner of the servient estate cannot impair, in any manner vvhatsoever, the use of
the servitude.
Nevertheless, if by reason of the place originally
assigned, or of the manner established for the use
of the easement, the same should b(~come very inconvenient to the owner of the servient estate, or
should prevent him from making any important
works, repairs or improvements thereon, it may he
changed at his expense, provided he offers another
place or manner equally convenient and in such a
way' that no injury is caused thereby to the owner
of the dominant estate or to those who may have
a right to the use of the easement. (545)
ART. 630. The owner of the servient estate retains the ownership of the porti::m on which the
easement is established, and may use the same in
such a manner as not to affect the exercise of the
easement. (n)

ART. 628. Should ,there be several domin,a nt estates the owners of all of them shall be obliged to
contribute to the expenses referred to in the preceding ,a rticle, in proportion to the benefits which each
may derive from the work. Anyone who does not
wish to contribute may exempt himself by renouming the easement for the benefit of the others.
If the owner of the servient estate should make
use of the easement in any manner whatsoever,
he shall also be obliged to contribute to the expenses
in the proportion stated" saving an agreem.ent to
the contrary. (544)

1. Rights anel obligations Of the o w n e r s - A. The dominant ownera. Rights (Art. 627) :
1) To exercise the right of easement.
2) To do all the necessary work for the use and
pr.~erllatjQrLof the easement buti) He must do so at his expense;
ii) There should be no alteration or increase
of the burden. He must choose the time
and manner least inconvenient to the ser- '
vient owner for making repairs.
iii) Notice to the servient owner must be
given.
b. Obligations :
1) To contribute to the expenses of maintenance
in proportion to the benefit, if there are several dominant owners.

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i) If he does, he may be enjoined. (Resolme


vs. Lazo, 27 Phil. 416).

i) If unwilling to contribute, he may re-

nounce the easement for the benefit of


the others (total renunciation being required, since the servitude is indivisible).
(Distinguish this waiver from that provided under Art. 488).
2) Not to alter or increase the burden of the servitude (Art. 627).
i) Mm'e frequent use ' of the right of way
(without increase of width, or deposit of '
. materials outside its agreed boundaries)
is not an increase in the, burden (Valderrama vs. North Negros Sugar Co.,
48 Phil. 492).
ii) But the servitude c~n not be extended
to estates 'other than those ,originally intended (Art. 626),
B. The se1'vient owner CArts. 629, 630).

'1

a. Rights:
1) To retain tJwne1'ship o:nd 220session of the
servient estate (Art. 630).
2) To change tWocatio ')1 of ~ easement, when
, it bec0!TIes very, inconvenient, PROVIDED:
i) He substitutes another place or form
equally convenient, and
ii) No injury is caused to the dominant
owner (Art. 629).
3) To exercise Tedemption of the easement, if
stipulated.
4) To make use of the' servient estate without
affecting the easement (Art. 630).
b. Obligations:
1) Not to impai1' the servitude's use in any
manner.

. 160

2) To contribute to the expenses of maintenamce

if he makes use of the servitude (Art. 628,


p. 2).
,
~{("

..

Section 4.-Modes of Extinguishment of Easemen~s

631. Easements are extinguished:


.(1) By~ meJ~r in the same person of the owner
ShIp of the dommant and servient estates;
. (2) ,By nonuser for ten years; with respect to
dlscontmuous easements, this period shall be computed ~rom the day on w~ich they ceased to be used ;
and, wIth respect to continous easements, from the
day on which an act contrary to the same took place:
. (3) When either or both of the estates fall into
such condition that the easement cannot be used,
but it shall revive if the subsequent condition of
the e~tates or either of them should again permit
its use, unless when the u~e becomes possible, suf
ficient time for prescription has elapsed, inaccol'dance with the pl'ovisions of the prece.d ing number;
(4) By the ~ of the term or the fulfillment of the condition, if the easement is temporary
or conditional;
(5) By the renunciation of the 'owner of the dominant e s t a t e ;
(6) By the redemption agreed upon between the
owners of th~t and servient estates.
ART.

(546a)
ART. 632. The form or manner of using the easement may prescribe as the easement itself, andil1
the same way. ( 547 a)

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633. If the dominant estate belongs to several persons in common, the use of the easement by
anyone of them prevents prese-ription with respect
to the others. (548)
I. Extinction of servitudes (Art. 631).
ART.

A. Causes.
a. Merge1' o f ownership of the dominant and servient estates, , The merger must be absolute, perfect and definite; not merely temporary (Manresa)
1) Ownership of the dominant and servient estate does not merge in the sa~eperson where
the owner of the dominant estate acquires
only a part interest in the servient e.s tate
(Cabacungan vs. Corrales GR L-6629, Sept.
30, 1~54).
'
b. Non-user for 10 years (extinctive prescription).
1) Computation of the period:
i) Discontinuous easements : counted from
th,e day they cease to be used.
ii) Continuous easements: counted from
the day an .act adverse to the exercise
takes place (Ongsiaco v. Ongsiaco,
L-7510,. Mar. 30, 1957).
2) The use by a co-owner of the dominant
estate bars prescription with respect to the
others (Art. 633).
3) S ervitudes not yet exercise,d can not he extinguished .b y non-user.
i) Thus, the right to claim the exercise o{a
legal easement does not prescribe (Francisco vs. Paez, 54 Phil. '2 39).
c. Bad condition of the tenements, preventing its
exercise.

162

OUTLINE OF PHILIPPI NE CIVfl. LA \\.

1) In reality this is suspension merely ,(unless


it ripens into extinction by ncm-u~~]') because the law provides for a r evival of the
right when the condition of the estates permits exercise anew.
d. Expiration of the term or fulfillment of the resolutory condition.
e. Waiver by the dominant owner.
1) Must be specific, clear, exp1'ess (to distinguish it from non-user) (Fuentes vs. Rivera
(CA) 40 0G (Sup. 12) 106). This ~s specially true for intermittent easements (Francisco vs. Paez 54 Phil. 239).
f. Redemption agreed upon between the owners.
ALSO (but not mentioned by the Code) :
g. Annulment of the title to the servitude,
h. Resolution of the right to create the servitude
(e.g. in the case of "pacta de retro," when the
property is redeemed) (Art. 1618).
i. E xp1'op1'iation of the servient estate.
j . Permanent impossibility to use the easement.
B. Form of the use (e.g., width of the ~oadway, nU~b:r
of windows, etc.) also prescribes lIke the servltuae
itself and in the same manner (Art. 632) (TS 3 March
1942). Cf. Art. 626, last part.
NOTE: Prescription here is' both extinctive and
acquisitive, unless the easement can not be
acquired by prescription.
C. Effect of Registration of the se1'vient estat e as free
f r om easement under Act 496 (Land Registration
Law ).
a. Sec. 39-"Easements .. . shall continue to subsist
and shall be held t o pass with the title of ownerS11ip until rescinded or extinguished by viTt'/,w of
163

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164

tablished for public or communal use shall be governed by the special laws and regulations relating:
theretp, and, in the absence thereof, by the provisions of this title. (550)

1. Legal easements of private interest may be modified


by agreement bu.t without prejudice to strangers
(Art. 636).
ART. 635. All matters concerning' easements es-

ART. '

634. Easements imposed by law have for


their object either public use or the interest of private persons. (549)

Section 1.-Genenil Provisions

LEGA.L EASEMENTS

CHAPTER 2

1'egistmtion of the servient esta,te, or in any other


manner."
b. Th e provision of the a,bove section establishes
only a presumption; and the r'egistmtion will not
extinguish the easement in the following cases:
1) If there is an accompanyillg stip'/,la,tion or
understanding that the easement will ,subsist
(Santos vs. Reyes, (CA) 40 OG No. 15, p.
3140) .
2) Where the tmnsfer'ee of the servient estate
has ' kn01Vledge of the existence of the unregistered easement (Mendoza vs. Rosel, 74
~hil. 87).
D. Specwl ea,uses or extinction.
a. For',r'ight of wa,y-The opening of a public road,
or joining the dominant tenement to another with
exit on a public road. The servient owner may
demand extinction of the servitude, returning
the price of the land (Art. 655).

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165

1. Na,tura,l dra,ina,g.e of lands (Art. 637). For buildings,


see Art. 674.
A. Lower estates must receive waters which na,tumlly
a,nd without intervention of man descend from hIgher
estates inclading the earth or stones carried with them
(Art. 637 ).
a. This is a limitation upon the owner's right to enclose nis tenement (Lunod vs. Meneses 11 Phil.
128).
b. Not entitled t o ea,sement: all water deliberately
collected or brought to the surface. The lower

ART; 637. Lower estates are obliged to receive


the waters which naturally and without the intervention of man descend from the higher estates,
as well. as the stones or earth which they carry
with them.
.
The owner of the lower estate cannot construct
works which will impede thi$ easement; neither
can the owner of the higher estate make works
which will increase the burden. (552)

Section 2.-Ea,sements relating to Wa,ters

637-648) and the Law of Waters of 1866. Administrative concession is required for the use of public
waters. '

1. The use of wa,ters is governed by the Civil Code (Arts.

636. Easements established by law in the


interest of private persons or ~or private use shall
be governed by the provisions of this title, without
prejudice to the provisions of general or local laws
and ordinances for the general welfare.
These easements may be modified by agreement
of the interested parties, whenever the law does
not prohibit it or no injury is suffered by a third
person. (551a)
ART.

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I. Easement for watering cattle (Arts. 640-641) .
A. This is really a combined easement for drawing of
water and right of way (TS 27 Ma rch 1896) .
167

166

ART. 640. Compulsory easements for drawing


water or for watering animals can be imposed only
for reasons of ublic use in favor of a town or
vil1a~e, after payment of the pr oper maemnity.
t555)
ART. 641. Easements for drawing water and for
watering animals carry with them the obligation
of the owners of the servient estates t o, allow passage to persons and animals to the place where such
easements are to be uspd, and the indemnity shall
include this service. (556) ,

A. Under the Law of Waters (Art. 143), an administra.,.


tive investigation is required in order that a person
may be legally permitted to construct a dam (Solis
vs. Pujeda 42 Phil. 697).
B. Indemnity must be paid to owners of the banks where
buttresses are placed, and to other irrigators.
C. See C.A. 383 penalizing improper obstruction or fill- '
ing of river beds.

I. Easement of dam or weir (Art. 639, 647).

ART. 639. Whenever for the diversion or taking


of water from a river or brook, or for the use of
any other continuous or discontinuous stream, it
should be necessary to build a dam, and the person
who -is to construct it is not the owner of the 'b anks,
or lands which must support it, he may establish
the easement---.Q{ abutment of a dam, after payment
of the proper indemnity. (554)

a. With indemnity for the land occupied.


b. W~dth: One meter for p~destrians; two meters
for anfmals (Law of Waters, Art. 152).
D. Indemnity must be paid if private land is occupied
(Roxas vs. City of Manila, 9 Phil. 215).

OUTLINE OF PHILIPPINE CIVIL LAW

1. Easem ents on riparian p'roperty.


A. A "bank" is a lateral strip washed by the stream dur' ing high tides which do not cause inundation. (Art.
73, Law of Waters).
B. A 'rive?' bank (even if private) within a zone of 3 meters along the bank is subject to the easem~nt for
public use in the interest of navigation, floatage,
fishing' and 'salvage (drying of nets, and boats, deposit of jetsam or flotsam).
,
C. Banks of ruLvigable rivers: also subject to the easement of towpath (sirga).

ART. 638. The banks of rivers and streams even


in ease they ar.e of pr ivate ownership; are s~bject
throughout theIr entir e length and within a zone
of thr ee meters along their margins, to the easen,tent of public use in the gener al interest of navigat IOn, floatage, fisping and salvage.
'
Estates adjoining the banks of navigable or floatable river s are, furthermore, subject to the easement of tow'p ath for the exclusive service-Of river
navigation and floatage.
If it be necessary for such purpose to occupy lan<Js
of private ownership, the proper indemnity shall
first be paid. (553a)

B. Limitations.
a. The dominant owner must not incTease the burden (collect water, increase the velocity, etc.)
but he may erect works to avoid erosion (Law
of Waters, Art. 114).
b. The servient owner must not impede the descent
of water (but may regulate it) (Law of Waters, '
Art. 113) (Osmefia vs. Camara (CA) ,38 OG
2773) .

estate's owner is entitled to damages (Arts. 508,


515. 642) .

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168

ART. 642. Any person who may wish to use upon


his own estate any water of which he can dispose
shall have the right to make it flow through th~
intervening estates, with the obligation . to indem- .
nify their owners, as well as the owners of ' the
lower estates upon which the waters may filter or
descend. (557)
ART. 643. One desiring to make use of the right
granted in the preceding article is obliged ~
(1) To prove that he can dispose of the water
and that it is sufficient for the use for which it is
intended;
~
(2) To show that the proposed right of way is
the most convenient and the leagt onerous to third
persons;
(3) To indemnify the owner of the servient estate in the manner determined by the laws and re.,
gulations. (558)
ART. 644. The easement of aqueduct for private
interest cannot be imposed on buildings, courtyards,
annexes, or outhouses, or on orchards Qr gardens
already existing. (559)
ART. 645. The easement of aqueduct does not prevent the owner of the servient estate from closing
or fencing it, or from building over the aqueduct
in such manner as not to cause the la.tter any damage, or render necessary repairs and cleanings impossible. (560 )

B. It may be constituted only in favor of town.'I and villages ("caserios") (10 or more persons living in more
than one house).
a. This right must be regulated by the legal representatives of the town. One isolated individual
may not make this claim (Manresa).
C. The way is not to exceed 10 meters in width.
. D. Indemnity shall include payment for the right of way.

OUTLINE OF PHILIPPINE CIVIL LAW

9F
PHILIPPINE CIVIL LAW

169

1. Aqueduct (Arts. 643-646) .


A. Requisite's: (Gonzales vs. De Dios, G.R. No. L-3099,
May 21, 1951).
a.The easement should not be imposed over buildings,
. gardens, yards or dependencies, if the servitude
is for private interest (Art. 644) :
b. There should be proof that:
1) The dominant owner has a right to dispose
of the water (Prescription or administrative
concession) ;
2) That the water is sufficient for the intended
use;
.
3) That the course is the most convenient, and
least one'rous (Art. 643) to the servient
owner.
c. Indemnity must .be paid to the servient owner and
all those affected by the seepage or fall of water
(Art. 643).
B. CluJ,1"acte'r: It is apparent and continuous (hence,
m~y be acquired by prescription) regardless of actllal
use (Art. 646).
.
, a. Reason for the rule-to make the easement acquirable by prescription for the .benefit of agriculture.
C. Rights and Obligations:
a. Of the dominant owner: To service and clear t he
aqueduct and to provide for deposit of the Il1.aterials necessary t herefor (Law of Waters, Arts.
130, 132).

ART. 646. For legal purposes, the easement of


aqueduct shall be considered as continuous and apparent, even though the flow of the water may po~
be continuous, or its use depends upon the needs 01
the dominant estate, or upon a schedule of alter, nate days or hours. (561)

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170

AR'f. 649. The owner, _or any person who by virtue of a real right .may cultivate or use any immovable,
is l' ~oun e
ther immo:Y.:ables
pertaining to other persons and ithout adeguate
outlet 0 a u lie hi hway., is entitle to emaml
a right of way through the neighboring estates,
after payment of the proper indemnity.
.
Should this easement be established in such a '
manner that its use may be continuous for all the
needs of the dominant estate, establishing.a.,J2erma.,nent passage, the indemnity shall consist of the
value of the land occupied and .the amount of the
damage caused to the servient estate.

Section 3.-Easement Qf Right of Way

I. See Law of Waters of 1866, Arts. 111-165.

ART. 648. The establishment, extent, form and '


conditions of the servitudes of waters, to which this
section refers, shall be governed by the special laws
relating thereto insofar as no provision therefor is
made in this Code. (563a)

ART. 647. One who for the purpo~e of irrigating


or improving his estate, has to construct a stop lock
or sluice gate in the bed of the stream from which
the water is to be taken, may demand that the
owners of the banks permit its construction, after
payment of damages, including those caused by the
new easement to such owners and to the other irrigators. (562)

b. Of the se?'vient owner: To close and fence and


Duild ovei- aqueduct, provided it is not damaged
and that maintenance and cleaning are not prevented (Art. 645).

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171

In case the right 0 rn..y IS 'mited to the necessary passage for the: cultivati
the estate surrounded'by others and 0
'athering of its crops
through the servient 'estate "
:l:manent
~ . the indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if the isolation
of the immovable is due to the proprietor's own
acts. (564a)
ART. 650. The easement of right of way shall be
established at the point least re 'udicial to the servient estate, an , mso. ar as, conSlS ent wiUi this
rule, where the distance from the dominant estate
st. (565)
to a public highway rna be t
ART. 651. The width of the easement of right of
way shall be that which is sufficient for the needs
of the dominant estate, and may accordingly be
changed from time to time. (566a)
ART. 652. Whenever a piece of land acquired by
~ale, exchange or partition, is surrounded by other
estates of the vendor, exchanger, or co-owner, he
shall be obliged to grant a right of way without indemnity.
In case of a simple donation, the donor 'shall be
indemnified by the donee for the e::;tabEshment of
the right ofway. (567a)
ART. 653. In the case of the preceding article, if
it is the land of the grantor that becomes isolated,
. he may demand a right of way after paying an indemnity. However, the donor shall not be liable for
indemnity. (n)
ART. 654. If the right of way is permanent, the
necessary repairs shall be made by the owner of the
dominant estate. A proportionate share of the taxes

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172

shall be reimbursed by said owner to the proprietor


of the servient estate. (n)
.
. ART. 655. If the right of way granted to a sur- '
rounded estate ceases to be necessary because its
owner has joinedit to another abutting on a public
road, the owner J.f the servient estate may demand
that the easement be extinguished, returning what
he may Have received by way of indemnity. .The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement.
rfhe same rule shall be applied in case a new road
is opened giving access to the isolated estate. .
In both cases, the public highway must substantially meet the needs of the dominant-estate in order
that the easement may be extinguished. ' (568a)
ART. 656. If it be indispensable for the construction, repair, improvement, alteration or beautifica. tion of a building, to carry materials through the
estate of another, or to raise thereon scaffoldirig OJ'
other objects neCessary for the work, the owner of
such estate shall .be obliged to permit the act, after
:receiving payment of th.e proper indemnity for the
damage caused him. (569a)
ART. 657. Easements of the right of w~y for the
passage of livestock known as animal path, animal
trail or any other, and th08e for watering places,
resting places and animal folds, shall be governed
by the ordinances and regulations relating thel'eto,
and, in the absence thereof, by the us~ges and customs of the place.
Without prejudice to rights legally acquired, the
animal path shall not exceed in any case the width
of 75 meters, and the animal trail that of 37 met'e rs and 50 centimeters.

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173

A. Requisites:
a. The property must be surrounded by estates of
other owners, without access ( or difficult or
dangerous acce~s) to a publip 'roa.d (Art. 649) . .
1) Under Spanish law, the existence of waterways bars the right to the servitude (TS
Mar. 8, 1922); this rule is not observed in
the Philippines.
b. Indemnity ml}st be paid to servient owners:
1) Pe1'manent 'road: The value of the land
occupied plus damages ' and proportional part
of the taxes must be paid (Art. 654, 649).
i) But the dominant owner does not thereby become the owne1' of the land,
because:
aa) The servient owner may change
the sit.e of the way (Art. 629).
ab) No servitude may exist on one's
own property; and '
ac) The indemnity is returnable (Art.
655) upon extinction of the right.
2) Temp01:a1'y (seasonal) waY-Qnly the damage (not the value of the land) need be paid.
3) No indemnity arises when the enclosing
estate belongs to the vendor, excnanger or.
co-owner (donor not included) (Art. 652) ;
but if the estate enclosed is that of the g-rantor, he must pay indemnity for a right of

I. Right of way (Arts. 649 to 657).

Whenever it is necessary to establish a compulsory easement of the right of way or for a watering place for animals, the provisions of this Section
and those of articles 640 and 641 shall be observed.
In this case the width shall not exceed 10 meters.
(570a)

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E.

D.

C.

B.

174

c. The easement should be established at a point


least prejudicial to the servient estate (generally the shortest distance) (Art. 650).
Width: It should be sufficient for the requirements
of the dominant estate, including use of an automobile (Larracas vs. Del Rio (CA) 37 OG 287).
Specw,l cause of extinction (Art. 655).
a. Joining the dominant estate to another having
exit at a public road. The road must substantially meet the-needs of the dominant estate, and
must not require a change in its character (TS
16 Dec. 1904).
b. Opening of a new road giving access 'to the dominant estate:
1) The indemnity is returned without interest.
It is regarded as rent (Art. 655).~
NOTE: This ground is not applicable to voluntary
easements (Duran vs, Ramirez (CA) 47 OG 4247).
Observe that extinctiop. is not automatic. There must
be a demand for extinction coupled with tender' of
indemnity (Manresa).
Who can demand the easement? The owner of the
dominant estate or holder of a real right of enjoyment (e.g. usufructuary);
a. Unless the physical isolation of the estate is due to
the proprietor's own acts (Art. 649, last par.).
Right of way for cattle should be not more than 10
meters wide, unless a greater width was a vested
right under laws prior to the Civil Code of , 1889
(Art. 657).

way, unless he is the donor of the enclosing


estate (Art. 653).

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175

ART. 658. The easement of party wall shall be


governed by the provisions of this Title, by the local
Qrdinances and customs insofar as they do not conflict with the same, and by the rules of co-ownership. ' (571a)
ART. 659. Th existence of an easement of party
wall is presumed, unless there is a title. or exterior
sign, or proof to the contrary:
_' _ _- .
(1) In dividIng walls of ladJoiningbuilding up
to the point of common eleva lOTI; ,
(2) In dividing walls of~araehs or ~sit
uated in c~ ~ns. or in rural communities;
(3) In ~s.,. l walls and live hedges dividing
rural lands. (572)
ART. 660. It is understood that there is an exterior sign, contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings
there is a window or opening;
(2) Whenever the dividing wall is, on one side,
straight and plumb on all its facement, and on the
other, it has similar conditions on' the upper part,
but the 100wer part slants or projects outward;
(3) , Whenever the entire wall is ,built within thE'
boundaries of one of the estates;
(4) Whenever the dividing wall pears the burden
of the binding beams, floors and roof frame of one
of the buildings, but not those of the others;
(5) Wheneyer the dividing wall between courtyards, gardens, and tenements ts' constructed in
such a way that the coping sheds 't he water upon
only one of the estates; ,
:
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain in-

Section 4.-Easement of Party Wall

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176

ART. 664. Every owner may increa~e the height


of the party wall, doing so at his own expense and
paying for any damage which may be caused b~T
the work. even though such damage be temporary.
The expenses of maintaining the wall in the part
newly raised or deepened at its foundation shaH
also be paid for by him; and, in addition, ~he indemnity for the increased expenses which may be
necessary for the preser ation of the party wall by
reason of the greater height or depth which has been
given it.
If the party wall cannot bear ' the increased
height; the owner desiring to raise it' shall be ohliged to reconstruct it at his own expense; and,
if for this purpose it be necessary to make it thicker,
he shall give the space required from his own land.

tervals project from the surface on one side only,


but not on the other:
(7) Whenever lands inclosed by fences or live
hedges adjoin others which are not inclosed.
In all these cases, the ownership of the w;:llls,
fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement
which has in its favor the presumption based on
anyone of these signs. (573)
ART. 661. Ditches or drains opened between two
estates are also presumed as common to both, if
there is no title or sign showing the contrary.
There is a sign contrary to the part-ownership
whenever the earth or dirt removed to .open the ditch
or to clean it is only on one side thereof, in which
case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior
sign in its favor. (574)
.
ART. 662. The cost of repairs and construction 'of
party walls and the maintenance of fences live
hedges, ditches, and drains owned in common,' shall
be borne by all the owners of the lands or tenements
having the party wall jn their favor, in proportion
to the right of each.
Nevertheless, any owner may exempt himself
from contributing to this charge by renouncing his
part-ownership, except when the party wall 'supports a building belonging to him. (575) .
ART. n63. If the owner of a building sunported
by a party wall desires to demolish the building, he
may also renounce his part-ownership of the wall,
but the cost of all repairs and work necessary to
prevent any damage which the demolition inay
cause to the party 'wall, on this occasion only" shan
. be borne by him. (576)
,
177

I. Party walls (1VIedianeria) (Arts. 658-666).


A. Thei1' real nature: The Civil Code treats party walls
as "easements," but .refers to them as a case of part-ownership (Arts. 665, 666, 662). In reality, this
is a case of /m'ced indivision; each owner owns his
half of the wall, but the halves cannot be separated.

(579a)

lise it in proportion to the right he may have in the


co-ownership, without interfering with the common and respective uses by the other co-owners.

ART., 666. Every part-owner of a party wall may

(578a)

ART: 665. The other owners who have not contri.buted in giving incre~l!~ed height, depth or thic~ness
to the wall may, nevertheless) acquire the right of
pa~t-ownership therein, by ' ~aying proporti?I!-3:11y
the value of the work at the tlme of the acqUIsItlon
and of the land used for its increased thickness.

(577)

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178

o
e wal in proportion to the
respective interests, resting buildings on it or
inserting beams up to one-half of the wall's thickness, Provided:
1) The others 'are not interfered with in their
. use; and
2) The consent of the other owners is secured
or the condition of the building is determined
by experts. (Arts. 666, 486).
To increase the height of the wall (A~. 664).
1) He must do so at his expense (including
the thickening of the wall over his own land) .
2) He should indemnify the other owners, even
for temporary damage.
To . acquire a half ....inierest in any increase of
thickness or height, paying a proportionate share

n: Rights 01 part ow~

a. By title; (see p. 156).


b. By contrary proof;
c. By signs contrary to the existence of the servitude (Arts. 660, 661) (Lao vs. Heirs of. Alburo..
33 Phil. 48).
1) If the signs are contradictory, they cancel
~
- othel: ..

C. Reb'ldtal 0/ presumptUm:

659, 661).

d. In ditches or drains between tenements (Arts.

tenements ;

B. Pre8UmptionB 0/ e:ristence (juris tantum~ disputable):


a. In adjoining walls of buildings, up to common
elevation;
b. In dividing walls of gardens and yards (urban);
c. In dividing fences, walls and live hedges of ' ~ur81

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179

A RT. 667. ~art-owner m.~y, without the consent of the others, open through the party wall any
window or aper ture of any kind. (580)
ART. 668. The period 'of prescription for the acquisition of an easement of light and Vif W shall be
counted:

Sect ion 5. -Easement of Light and View

,/>

1>

in the cost of the work and of the land covered by


e increase in thickness (Art. 665)
E. '- ut' of each part owner:
o contribute proportionately ~ the repatr and
~ unless he renounces his part-ownership, demolishing the buildings resting on the
wall (Art. 662). This renunciation is made
under the condition that the remaining partowner shall repair the wall. If he does not and
the wall falls: in ruins, the renouncer may still
claim his share of th~ materials (Sanchez Roman; Navarro Amandi). When it is proper, renunciation must be total and not partial {Manresa) (Compare this with renunciation in coownership, Art. 488).
b.~e owner raises the height of the wall, 'he
st
.
1) . Bear the cost ' of~alDtenance' of theaddi. '. / tions;
"
V Bear thefi.~creased eXpe~f preservation;
( 3L Bear the ~t of construct lO1i\ if the wall
cannot support the additional height;
11) Give a~j!!!lODal l1WiJ if ecessal'y, to thicken
the wa 1 (Art. 664.).
But the other owner may acquire part ownership
of the new wall by paying proportionately for the
value of the wor k and the land used, as of the
time of acquisition (Art. 665).
.

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180

(1) From the time of the opening of the window


if it is through a party wall; Oil.'
.
'
(2) From the time of th~ formal prohibition
upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate. (n)
.
ART. 669. When' the distances in article 670 are
not observed the owner of a wall which js not a
party wall, adjoining a tenement or piece of land
belonging to another, can make in it openings to admit light at the height of the cejling- joists or immediately under the ceiling; and of the size of thirty
centimeters SQuare, and, in every case; with an iron
grating imbedded in the wall arid with a wire screen.
Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are
made can close them should .he acquire part-ownership thereof, if there be no stipulation to the con
trary.
.
He can 'also obstruct the~ by constru'cting a
building on his land or by raising a wall thereon
con .
s to that having such openings, unless an
ea;ement
light has oeen acquired. (58130)
!~ RT., 67 No windows, apHtures, balconies, or
(i)th si . 301' projections which afford a direct view
upon or towards an adjoining land or tenement cal?
be made, without leaving a distance of two meters
between the wall in which they are made and such
contiguous property.
.'
..
. Neither cIDl--fJide -or oblique views upon or towards such ''conterminous property be liad, unless
there be a distance of sixty centimeters.
The nonobservance of these distances does not
.give rise to prescription. (582a)

OUTLINE OF PHILIPPINE CIVIL LAW

(Uvel

ce:
.
asement of light is the right to make openings
1 'foot1<lu are) to receive light from another's tenement; the openings do not allow the
head to pass and look out. .
b. BasEment of view=-/is the right to open windows
t o enjijy LItE; viffirand to bar the servient cwner
from blocking the view. It include's the easement
of light and the servitude of "altius non tollendi"
(not to build higper), unless otherwise stipulated.

181

B. When no easement is acquired.


a., Restriotion as to openings in a party wail : Such
openings cannot be made without the consent of
the other owner (Art. 6,6 7).

.
'\

ART. 671. The distances referred to in the preceding article shall be measured in cases of direct
views from the outer line of the wall when the openings dp not project, from the outer line of the latter
when they do, and in cases of oblique views from
the dividing line between the two properties. (583)
ART. 672. Tne provisions o~ article 67.0 are not
applicable to buildings separated by a public way or
alley, which is not less than three meters wide, subject to special regulations and local ordinances.
(58430) .
.
ART. 673. Whenever'by any title a right has been
acquired to have direct views, balconies or belvederes
overlooking an adjoining property, the owner of the
servient estate cannot build thereon at less than a
distance of three meters to be measured in the manner provided in article 671. Any stipulation permitting distances less than those prescribed in article 670 is void. (585a)
1. ~
e ent f light and view:'
,

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'I

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182

c. R estriction as to views (Arts. -670; 671).,


1) Drect vie'ws: No windows, balconies etc.
may be made in walls affording direct view
un less a distance of 2 meters is left between wall and boundary.
i) The view is direct when prolongation
of its axis will meet the next tenement.
2) Oblique views (walls perpendicular or at an
angle to the boundary line): These may not
be had at less than 60 em. from the boundary

b. Restl'ictio-ns 0'/1. openings in one's own 'Wall w hen


contiguous (less than 2 meters) to another's tenement (Art. 669).
1 ) Size : -It can n ot exceed one foot square (30
em. each side).
Location: The openings must be at the height
of the joists, near the ceiling. Hence, every
floor or ' story may have these openings
(Choco vs. Santamaria, 21 Phil. 132).
Const1'uction: They must be provided with
iron grilles and wire netting.
2) Rights of the abutting ' owner:
i) To close the openings if the wall becomes a party wp,ll.
ii) To block the light by building or erecting his own wall unless a servit-ude
is acquired by title or prescription,
the period to be counted from formal
prohibition or an order not to block the
light.
iii) To ask for the 1~edu,ction of the opening to the proper size.
Note: These rights are not lost by mere lapse
of time, unless there is the forinal prohibition required to start extinctive
prescription (Art. 670).

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183

D. Rights when the easement is acquired (Art. 673):


a. When by any title (agreement, will or prescr iption) the easement of view is acquired. the owner

_ 1) Mere non-observance of distances prescribed by Art. 670 without formal prohibition,


does not give rise to prescription (Art. 670) :
revokes Soriano vs. Sternberg, 41 Phil. 212.

b. PrescriptIon [counted from the formal prohibition on the servient owner: (Cortes vs. Yu Tibo,
2 Phil. 24) or from the time of t he opening 6f
the window, if it is through a party wall (Art.
668)]. -

C. How acquired-: Bya. Title, or

line to the nearest edge of the window or


balcony.
3} Measurements are computed from the boundary line to the nearest edge of the window
(Santos vs. -Rufino, 70 Phil. 99).
4} Stipulations permitting lesser. distances are
VOID.
i) The restriction does not apply:
aa) To doors, (unless combined with
windows).
ab) To te~aces, unless balustraded or
with railings (Manresa).
if) The restriction applies to both sides of
the boundary, therefore it is not an easement in fact.
S) The rules a1'e not applicable to buildings sep~rated by public thorough,fares or p1'ivate
all~Y8 open to the public, and not less than
3 meters wide (Art. 672) (Masongsong vs.
Flores. 57 _Phil. 243).

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. tian 6.-Drainage of Buildings

'-,

, 184

67
owner of a bui!ding shall be obliged
to co tr .t ,Its roof or covermg in such manner
that th am water shall fall on his own land or on
a street or public place, and not on the land of his
neighbor, even though the adjacent land may belong,
to two or more persons, one of whom is the owner
of the roof. Even if it should fall on his own land
the owner shall be obliged to collect the water i~
such a way as not to cause damage to the adjacent
land or tenement. (586a)
ART. 675. The owner of a tenement or a piece of
land, subject to the easement of receiving water falling from roofs, may build in such manner as to
receive the water upon his own roof or give it another outlet in accordance with local ordinances or
customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate.
(587~
,
AR 6'76 Whenever the yard or court of a house
is sun
ed by other houses, and it is not :possible
to give an outlet thro,ugh the house itself to the rain
water collected thereon, the establishment of an
easement of drainage can be demanded, giving' an
outlet to the wateJ:-~ the _p~t of the contiguous
lands or tenement~ where its egress may be easiest,
ana establishing ~ (conduit for the drainage in sueh

AR. ~h 4)~he

cannot build within 3 mete1's f1'o1n the bounda1Y.


This is the 1'eal easement or servitude.
b. Although Art. 673 says "when by any title".
nevertheless, the 3 meter distance or other conditions may be varied by the contract or act creating the easement; provided, the minimum distances (Art. 670) are respected. (See par. C) .

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185

b. Conditions of easement: (cf. right of way) :


1) Th~ 'outlet must be established where egress
is easiest.
,2) ' Proper indemnity , should be paid.
c. Option of the servient owner in the easement of
roof dr~inage: He may receive water on his own
roof and drain the same without damage to the
dominant estate, according- to ordinances and regulations (Art. ,6 75).

B. CompuJ,sor'y easement (Art. 676) :


a. When available: When1) A house, yard or court is enclOBed by other
estates; and
2) It is impossible to give outlet to the rain
water through the house itself.

1. Drai11/J,ge of buildings:
A. General rule: Restriction: The owner of a building
must construct his roof or covering in such a manner
that rain water falls on his own land, a street or
public place, not on land 'of a neighbor; and 4ispose
of the water without damage to the adjoining estate
(Art. 674). Strictly speaking, this is not a servitude
but a mere regulation of the use of one's property
(Manresa).
a. Art. 674.of the new Code requires the owner of the
building to construct his roof in such a manner
that rain water. shall not fall on the land of his
neighbor, even though the adjacent land may b~
long to two or more persons, one of whom is the
owner of the roof (Cabacungan vs. Corrales G.R.
L-6629, Sept. 30, 1954).

manner as to cause the least damage to tpe servient


estate, after payment of the propel~ indemnity.
(588)

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186

ART. 677. No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in
special laws, ordinances, and regulations relating
' thereto. (589 )
ART. 678. No person shall build any aqueduct,
well, sewer, furnace, forge, chimney, stable, depository of corrosive substances machinery or factory
which by reason of its nature or products is dangerous or no"dous, without observing the distances prescribed by the regulations and customs of the place,
and without making the necessary protective works,
stlbje~t, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors.
In the absence of regulations, such preca-utions
shall be taken as may be considered nece:;sary, in
order to avoid any damage to the neighbor ing-lands
(j}' tenements. (590a)
ART. 679. No trees shall be planted near a tenement or piece of land belonging to another except
at the distance authorized by the ordinances or customs of the place, and, in the absence ther eof, at
a distance of at least two meters from the ,dividing
line of the estates if tall trees are planted and at
a distance of at least fifty centimeters if shrubs or
small trees are planted.
,
, Every landowner shall have the right to demand
that trees hereaf ter planted at a shorter distance
from his land or tenement be uprooted.
The proVisions of this article also apply to trees
which have grown spontaneously. (5~la)

Section 7.-Inte'Jmediate Distances and W O'J'Jcs


for Certain Constructions and Plantinus

187

C. Planting (Art. 679) :


a. , Distances as prescribed by ordinances or C1J,stoms
must be observed. If none1) FOi' large t?'ees: 2 meters from the boundary.
2) Fm' shrubs: 50 centimeters.
-Measured from the center of the tree
(Manresa). Plants or trees growing at a
shorter distance may be uprooted on demand.

T. ' Distances:
A. Milita'J'y zones: Buildings or plantings may only be
made according to speci,a l laws, ordinances and regulations.
B. Const?'UCtions: For wells, sewers, aqueducts, furnaces, forges, chimneys, stables, deposits of corrosive
materials, machines or factories-a. Distances fixed by ordinances or custom, must be
observed.
'b. Protective structures prescribed by ordinances or
custom must be erected. If none, precautions
must be taken, if necessary, to avoid damage to
neighboring estates or buildings (Art. 678).
c. Violation gives rise to responsibility for damages
caused (Art. 2191). No waive?' is allowed (Art.
678) on the part of the adjoining proprietors.

ART. 680. If the branches of any tree should extend over a neighboring estate, tenement, garden or
yard, the owner of the latter shall have the right
to demand that they be cut off insofal' as they may
spread over his property, and, if it be the roots of
a neighboring tree which should penetrate into the
land of another, the latter may cut them off himself within his property. (592)
ART. 681. Fruits naturally falling upon adjacent
land belong to the owner of said land. (n)

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easemen~s.

188

\ tions upon his land as to deprive any.adJacent land


or building of suffi~ie.nt lateral or ~~bJacent sup,port.
~~

. $ Section 9.-Lateml and Subjacent Support (n)


\l\r~RT. 684. No proprietor shall make s~ch 'excava-

1. It is doubtful if .the above are true

ART. 682. Every building or piece of land is subject to the easement which prohibits the prQ~rietor
or possessor from committing nuisance through
noise, jarring, offensive odor,smoke, heat, dust,
water, glare and other causes.
ART. 683. Subject to zoning, health, police and
other laws and regulations, factories and shops may
be maintained provided the least possible annoyance
is caused to the neighborhood.

Section 8.-Easement against .Nuisance (n) .

b. Intrusions (Art. 680).


1) Of bmnches: The owner of the tree may be
compelled to cut intruding branches at the
boundary.
2) Of roots: The owner of the invaded tenement
may cut them himself at the boundary.
-Reason f01' the difference:
Roots belong to the owner of the invaded soil
by incorporation (Castan).
i) ' The right to cut off the roots is impres'criptible (Navarro Amandi; Manresa).
3) Fruits falling naturally belong to the owner
of the land (Art. 681). The reason is to avoid
disputes between neighbors, not a~cession.

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189

ART. 688. Every owner of a tenement or piece of


land may establish thereon the easements which he
may deem suitable, ' a.n d in the manner and form
which he may deem best, provided he does not contravenethe laws, public policy 01' public order.
(594)
ART. 689. The owner of a tenement or piece of
land th~ usufruct of which belongs to another, ma.v
impose thereon, without the consent of the usufructuary, any servitudes which will not injure the
right of usufruct. (595)
ART. 690. Whenever the naked ownership of a
t enement or piece of land belongs to one person and
the beneficial ownership to another, 110 perpetual

VOLUNTARY EASEMENT.S

CHAPTER 3

1. It is doubtful if the above are true easements.


II. An owner suffering' injury due to deprivation of suf-ficient lateral or subjacent support is entitled to recover
damages from the 'person who unlawfully makes the excavation (Prete vs. Gray, City Treasurer [Supreme
Court of Rhode bland] April 25, 1918; 141 A. 609).

ART. 685. Any stipulation 01' testamentary provision allowing excavations that cause danger to an
adjacent land 01' building shall be void.
ART. 686. The legal easement of .1at;.eral and s~b
jacent support is not only for bUIldmgs standmg
at the time the excavations are made but also for
constructions that may be erected.
ART. 687. Any proprietor intending to m:;tke any
excavation contemplated in the three precedmg" articles shall notify all owners of adjacent lands.

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190

I. Voluntary servitudes:
A. WhQ may establish them: The owner possessing capacity to encumber property may constitute voluntary .
servitudes. A general capacity to contract is not sufficient.
a. If there are various owners, aU must consent, but
consent once given is not revocable (Arts. 690,
691). Hence, their consent need not be simulta..
neous.

voluntary easement may be established thereon


without the consent of both owners. (596)
ART. 691. In order to impose an e~sement on an
undivided tenement, or piece of land, the consent
of all the co-owners shall be required.
The consent given by some only, must be held in
abeyance until the last one of all the co-owners shall
have expressed his conformity.
But the consent given by one of the co-owners
separately fr:om the others shall bind the grantor
and his successors not to prevent the exercise of the
right granted. (597a)
ART. 692. The title and, in a proper case, the possession of an easement acquired by pI."e~criptiQn
shall determine the rights of the dominant estate
and the obligations of the servient estate. In default thereof, the easement shall be governed by
such provisions of this Title as are applicable thereto. (598)
ART. 693. If the owner of the servient estate
should have bound himself, upon the establishment
of the easement, to bear the cost of the work required for the use and preservation thereof, he may
free himself from this obligation by renouncing his
property to the owner of the dominant estate. (599)

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191

a. Those depriving the owner of the possession of


a thing given as security, with the right of the

A: Kinds:

I. In General:

REAL RIGHTS OF SECURITY

B. 1'11, whose fa.vor they are establi8hed:


a. Predial servituileB:
1) For the owner of the dominant estate.
2) For any other person having any juridical
relation with the dominant estate, if the owner ratifies it. Ho~ver, the resolution of the
"Direccion General de Ultramar:" Feb. 18,
1893, laid down the rule that they may be
established only in favor of the owner.
b. Persorw.l servit'iUUs: For anyone capacitated to
accept.
C. In case of property under usufruct, the usufructuary
must not be prejudiced (Art. 689).
D. Rights and obligations:
a. These .are determined by the1) Title, and .
2) Possession-(in case of prescription enlarging
or diminishing the initial voluntary easement) (Art. 692).
b. Where the owner boond himself to pay for the
maintenance or do some 8ervice he may abandon
his tenement and relieve himself of his obligation
(Art. 693) . .
1) Should he abandon all the property? Yes, because it is a personal obligation; but the
owner may dispose of a portion before abandonment (Castan, de Buen, Goyena). This
servitude burdens the whole: est toto, in toto ,
et toto, in qualibet parte.

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192

B. Common Char'acteristics:
a. All these rights are accessory to, ~nd can not
exist without, a valid obligation and have the
-purpose of ensuring its fulfillment. Consequently, they are also extinguished upon discharge
of the obligation secured.
b. All are indivisible, and admit no partial extinction by reason of part payment (tota in toto, et
tota in qualibet par'te) save -by special stipulation
or provision of law (See Art. 2089, pars. 3 and 4).
c. These real rights are extinguished upon release
of the security.
d. They are only rights to the money value of the
security, not to the thing itself.
e. Any stipulation that the creditor shall automat'Lcally become the owner of the security if the

The first three are usually conventional and


ari"e from the consent of the parties; the fourth
(retention) -is purely statutor'y in origin.

creditor to have it sold in case of non-fulfillment


of the obligation secured (pledge).
b. Those where the security remains in the hands
of the owner and limit the right of the creditor
to have the security sold in case of non-fullfillment (mortgage).
c. Those conferring the right to receive the fruits
of the thing given as security, for the purpose of
applying them to the extinction of the guaranteed credit, but without prejudice to the option
to cause the sale of the thing itself (antichresis).
d. Those entitling the creditor under a provision
of law to keep and possess a thing until his _credit is paid and have it sold if not paid within one
month from demand to satisfy the credit (right
of retention).

OUTLINE OF PHILIPPINE CIVIL LAW

II. Real Right of Pledge:


A. Concept: It is a real right created for the purpose
of securing an obligation and constituted over movable property belonging to another, which is placed
in - the possession of the creditor or of a stranger,
and enabling the creditor to have said movable sold
"in .due time and to receive the proceeds thereof in
discharge of the debt.
B. Chm'acteristics.
a. It is a real right opposable to all (erga omnes)
entitling the creditor to demand the sale of the
movable pledged and receive the proceeds of the
s!tle.
b. It is accessory to a principal obligation.
c; It must refer to movable property owned by the
pledgor; who mayor may not be the debtor of the
principal obligation:
d.It is tndivisible (see ante, par. I, B, c). See Art.
2089.
e. The thing pledged must be placed in the posses-~ion of the creditor' (pledgee) or of -a stranger';
It must not remain in the possession of the pled_gor. This characteristic distinguishes pl~dge
from chattel mortgage.
f. The pledgee does not acquire title to the fr'uits.
C. Regulation and Rules: Civil Code of the Philippines,
Arts. 2085 to 2123, Book IV (q.v.). Outline, Vol. VI.
D. Effects:
a. The creditor (pledgee) has the right to have the
thing given in pledge p1aced in his possession . 01'
193

debt is not paid (pactum commissOJiwn) is void


ab initio.
C. The Civil Code deals with pledge, mo~tgage and antichresi~ in Book IV on cont';,acts (q. v.); the right
of retention is provided for in several articles without unified treatment (see post). But the resulting
rights are r'eal rights.

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194

B. Characteristics:
a. It is a real right (once it is recorded) opposable
to all (erga otnnes) and regardless of the possessor of the property (Art. 2126).
.
b. It is accessory to a principal obligation, which
mayor may not be owed by the mortgagor himself.
c. It is indivisible (see ante, par. I, B. c). Except as
provided in Art. 2089.
d. Itmust be constituted by the owner of the mort
. gaged property.
.

obligation, over property that remains in the possession of the owner; and to satisfy with the proceeds of
its sale the obligation secured, if the latter is not
paid when it falls due (Sanchez Roman).

III. Real Right of Mortgage:


A. Concept: It is a real right constituted to secure an

in that of a stranger, until the debt secured is


paid (Art. 2098).
1) He can not use it unless authorized or the
use is one required for its preservation
(Art. . 2104).
2) Expenses of preservation are to be reimbursed (Art. 2099).
3) The fruits of the thing are to be applied to
the interest and to the capital (Art. 2102).
4) He may bring action to defend and recover
possession (Art. 2103).
b. The credit secured is preferred whiJe .possession
is not lost (Art. 2241)
c. The creditor may have the thing .sold (by a Notary or by court action) in 'case the credit secured is not paid, and to appropriate the net
proceeds, even if in excess of the debt; but call
not .collect any resulting deficiency.. despite a contrary stipulation (Art. 2115).

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195

G. Constitution: By a public instrument duly recorded


(Art. 2125).
a. While the contract is declared binding as be.tween the parties even 1;[ not 1'ecorded, lack of
recor . ing prevents it from giving rise to a real
right opposable to strangers and enjoying preference aga.inst other credits over the property
m ortgaged and its proceeds.

(cf. pledge).
1) A mortgagee in possession is subject to the
rules of antichresis (Macapinlac vs. Repide,
43 Phil. 770; Pando vs. Jimenez, 54 Phil.
459; Enriquez vs. P.N.B., 55 Phil. 414).
f. It entitles the mortgagee to demand the sale of
the property mortgaged and have its proceeds
appUed to the payment of. the debt, the excess being returnable to the mortgagor and any deficiency being collectible from the debtor (cf.
pledge) .
(1) Except in chattel mortgages . to secure the
unpaid ' instalments of the purchase price,
where the mortgagee can not recover a.ny deficiency _from the debtor in case of foreclosure. (Art. '1484).
g. It extends to all accessions and accessories of the
property mortgaged.
h. It can not be validly imposed on land acquired
by free patent or homestead patent (Kasilag vs.
Rodriguez, 69 Phil. 217, 228) within 5 years
from issuance of the patent or grant, unless in
favor of the government or government institutions or banks (s. 118, C.A. 141).
1. It may e)Cist as subsidiary to another mortgage.

.e. It does not entitle the mortgagee (creditor) to


have the possession O'f the property mortgaged

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196

of law) (Art. 168, Ley Hipotecaria de Ultramar) such as:


,
i) Mortgage by the husband to whom the
wife transfers the management of her
parapherna.
ii) By the reservor (reservista) in favor
of reservees (reservatarios) in rese1va
troncal.
iii) By the parents in favor of their minor
children (Ley Hipotecaria, Art. 168)
provided the property under parental

2) Legal (demandable pursuant to a prOVISIOn

1) Voluntary. -

c. According to their, origin:

b. The importance of the mortgage lies precisely


in this real right.
D. Kinds :
a. According to the property mortgaged:
1) Real estate mortgage, constituted Qver immovable property or alienable real rights
over immovables.
2) Chattel Mortgage, constitutlild over movables
(chattels) remaining in the possession of
the mortgagor. (Under the Civil Code, where
the mortgaged chattel dbes not remain in
the possession of the mortgagor but is delivered to the creditor or a third person. a
pledge results~ ) (Art. 2140).
b. According ~o the obligation secured:
1) Ordinary, guaranteeing a preexisting deter~
minate obligation.
2) Security mortgage, guaranteeing an eventu,al credit (as 1n fidelity bonds) or one
with an undetermined amount not exceeding
a maximum ' (as in overdraft accounts).

OUTLINE OF PHILIPPINE CIVIL LAW

Creditor not entitled to the .


possession of mortgaged property.
Property may be subject to
senior and junior mortgages.
Proceeds extinguish debt only
pro tanto; except in chatt.el
mortgages to secure unpaid
instalments of the price, Art.
]484.

Pledged property must be in


possession of creditor or .s.tran
ger, not debtor.
the

No junior pledge
same chattel.

In case of sale, proceeds ex-

197

F. Regulation and Effects: See Civil Code, Book IV, Arts.


2085 .to 2092 and '2 124 to 2131 (q. v.) ; Mortgage Law
: (Ley .Hipotecaria-) of 1889 and Acts 496 and 1508.
See Outline, Vol. VI.
a. Real estate mortgage extends to accessi()lls, growing fruits, rentS or income due and unpaid and
indemnity from insurers or condemnors by eminent domain (Art. 2127)
b. Possessors of mortgaged property are liable for
the payment of the mortgage debt secured by the
possessed property (Art. 2129).
c. A prohibition to alienate mortgaged property is
void (Art. 2130).
d. The mortgagee is entitled to foreclose and to have
prefer ence over the proceeds of the sale of the .
mortgaged property. Foreclosure may be judicial (Rule 70) . or extraJudicial (under Acts 3135
and 4118).

tinguish debt regardless of


awount (no claim for defi
ciency nor return of excess).

on

May be on immovables or
mo\ abIes (chattel mortgage)

M01tgage

exce~ds

On movaoles only.

Pledge

E. Differences between Pledge and Mortgage:

usufruct and administration


P2,000.00 in value (Art. 320).

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198

A. Concept: It is a real right to receive the fruits ~f an


immovable owned by the debtor, with the obligation
to apply them to the payment of any interest owed
and thereafter to the principal of the obligation secured (Art. 2132).
B. Characte'r istics:
a. It is a 1'eal right, exercised directly and immediately over the debtor's property, opposable ergo,
ontttes.
'
b. It is accessory to a principal obligation.
c. It is must burden fruit-bea1"ittg imrr~ovable property of the debtor.
d. It is ittdivisible (no partial discharge of the bur
(len results in case qf partial payment).
e. It entitles the creditor to apply the net fruits of
the property to the amortization of the credit, or
to have it sold to pay the overdue debt.
f. It is not valid over land acquired by free patent
or homestead, within 5 years from issuance of the
patent or grant (see ~ortgage), except in favur
of the government or government institutions.
g. The creditor may surrender possession and demand its sale to satisfy his credit.
C. Differettees with Pledge and Mortgage:
a. It differs from Pledge in that Antichresis encumbers immovable property.
b. It differs from ~ortgage in that it gives the right
to possessiott and to receive the fruits, which
mortgage does not.
D. Regulatiott and Effects: Civil Code, Book IV, Arts.
2132-2137, 2089-2091 (q. v.). Outline, Vol. VI.
a. The creditor has the right:
1) To receive the fruits and, apply them first to
interest and then to the capital (after de-

IV. Real Right of Antichresis:

OUTLINE OF PHILIPPINE CiYIL LAV,'

199

b. It is accessory, as security for the payment of a


principal obligation. , , ' "
c. It is ittdivisible, in that the' t~ing may be wholly
retained until full payment:' Of the ' credit.
d. It entitles the retentioner to'; cause the sale of the
property retained and appl~ the proceeds to the
satisfaction of his credit. See F,b(post).

C. Characteristics:
a. It is a real1-ight operating directly over the thing,
and opposable to all, the right of retention being
superior, to conventional encu:qt.brances (Bank of
P. I. vs. Walter Smith & CC., ,5Q ,Phil. 338).

,V. Real Right of Retention:


A. COttcept: Itis a real right granted by law to the lawful possessor of a thing to retain it and prolong the
, possession thereof (beyond the-period originally contemplated) because of e~penses inc1Jrred for the pre, servation or improvement of the thing possessed; and
to cause it to 'be sold and have the proceeds applied
to the satisfaction of such expenses within 30 days,
from an unsuccessful demand for t1'!eir llayment. (See
Art. 2122).
B. Requisites:
a. Possession of the thing owned by another.
.' b; Good faith of the possessor (d. Art. 546).
c; Existence of credits for preservation or improvement of the thing possessed incurred during the
possessio? (Scaevola, Vinas ~ey).

ducting expenses for preservation and taxe~,)


at actual market value (Arts. 2133 and 2135).
2) To retain the property until the debt secured
thereby is paid (Art. 2136).
3) To foreclose and ask that the property be sold
to satisfy the credit (Art. 2137, par. 2).
4) To be preferred as to the proceeds of the sale.

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7'

200

e. By the a,p,ent fer r~bursement of expenses and


indemnity for damages caused him, without his
fault, by the execution of the agency (Art. 1l}14),
of the goods entrusted to him.
f. U the depositarl., for expenses incurred,'by reason of the deposit (Art. 1994), of the thing deposited. ", ' _
..
g. By' the hotelkeeper', for' cost of lodging and sup, plIes -furni.s1:led ,the' guest (Art. 2004), of the
goods of the latter.

d. By the--\'P0rker ~r mecha:"'iC} ' for. the sums due


. him for working on a chattel (mechanic's lien)
(Art. 1707, 1731).

sessed. Includes Builder or Planter in good 'faith


on another's land
.
b. By t~e~ufr'uctuaTYl for taxes a~'~ ~xtraordinary
repaIrs paid by him. (Art. 612), of the thi~g'
under usufruct.
c. By the ' ossesso'
ood fait . of movables tha~
w~re lost. or illegally taken rom the owner, for the"
prIC~e paId therefor at a public sale (Art. 559,
par. 2).
'

....

E. Cases when retention is authorized:


a. By the '2S~~.(\rSQr in good fiith, for 'his neceSsary
and useful expenses (Art. 546), of the thing. pos-

D. Differences from ordinary pledge:


a. R~tention may refer te :movable or i~ovable
property; pledge refers to movables oniy.
b. Retention is created by law;, pledge, by .c ontract.
c. In retention, possession originates in a cause other
than the incurring of the expenses (RampOIll) ,;
in pledge, the delivery <Y.f the th~ng is in .p erformance of the contract to constitute the pledge.

2122)

e, Tt is _terminate~ by loss "of-posses~ion" o(the thing


retamed, or fauure to sell it withiri 30 days (Art.

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201

II. Etym9logy:
The word nuisance ' is derived from "nocumentum." Under English law .it originally meant "interference with servitudes." Later it was limited to inter- '

t. To

constitute a nuisance there must be an a1~bit1'ary- 01'


abusive use of property or disregard of commonly ac, "c~pted. standards set by society...

ART. 694. A 'nuisance is any act, omission, establishment, business, condition of property, or anything else which:
. (1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; 01'
(3) Shocks, defies or disregards decency . or
morality; or
r
. (4) Obstructs or interferes" with .t he free pasage of any public highway or $treet, or any body
of water; or '
. .,' ..
_ (5) Hinq.ers or imp'a jrs the us~ of property.

Title- VIII.....,-NUISANCE (u)

.F. Ri'g hts of the Retentioner:


a. .To withhold possession until reimbursement (j
expenses.
b. Within 30 days from unsuccessful demand for payment to ' cause the public sale of the thing retained and apply the proceeds to the satisfaction of
the credit (Art. 2122).

Jf

h. "By. the'. carr'ier, for c,Wlt and expenses of trans" portabon (Code of Comm., Art. 375), of the goods
transported.
i.
!he ship captain} for passa~e money and board
. the ship'~ 'p assengers (Code <Y.f Corom. .Art.
704), of the goods of the passenger.
NOTE: But ':retention is forbidden to a bailee in
-Commodat~rn (Art. 194'4 ).

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202

The doctrine ~f'ii~traeti1l~ n~. stated:


.
A. One who mamtams on hIS premIses dangerous Instrumentalities or appliances of. a character likely to attract child1'en in play, and who fails to exercise 01'd~nary ~re to prevent children from playing therewith or resorting thereto, is liable to a child of ,tender years who is injured thereby, even if the child
is technically a trespasser in the premises (65 C.J.
455) . .
a. A swimming pool or water tank is not an attractive nuisance (Hidalgo Enterprises vs. Balandan, 48 OG 2641).

T. Classes: ' Public and private-The old distinCtion (Monteverde vs. Generoso, 52 Phil. 123) of per se and pe1' accidens has been abandoned, most nuisances being per accidens.
A. PubUc nuisance affects a community or neighborhood or a considerable number of peJ;sons evenif the
individuals are not equally affected.
B. Pri'L1ate nuisance is any kind other than public
nuisance (Art. ' 695). -

ART.. 695.. Nuisance is either public or private.


A Jl,ubhc nUIsance af~ects a community or neig-hborhood or any consIderable number of persons
although the ~xt~n~, of the annoyance, dang-er 01:
damage upon mdIvIduals may be unequal. A private nuisance is one that is not included in the foregoing definition.

III. Contemporary usage uses the word in three senses:


A. Human activity (e.g. indecent conduct) qr physical
condition of land;
B. The harm caused; or
C. Both the factual situation and the legal Jiability.

ference with the use and enj oyment of land-the forerunner of our ,own "private nuisance" (Dean" 'P rosser).

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203

ART. 699. The r emedies against a public nuisancz


are:
..
(1) A prosecution under the Penal Code or any
local ordinance; Qr
(2) A civil action; or
.
(3) Abatement, without judicial proceeding-so
ART. 700. The district health ' Qffice,r shall take
care that one or all of the r emedies against a public
nuisance are availed of.

I. Liability in case of nuisances:


A. Continuity of maintenance.-Every successive owner
or possessor of property who fails or refuses to abate
a nuisance is liable therefor in the same manner as
the one who created it (Art. 696).
B. Cumulative remedies.-Abatement' of nuisance does
not preclude the right of any person injured to recover damages f01' the past existence of the nuisance
(Art. 697). The right to abate a nuisance does not
prescribe (Art. 1143).
C. Responsibility of the abater.-A private person or
public official is liable for damages in case of extra.
judicial abatement:
a. If he causes unnecessary injury;
b. If the courts later declar~ thl;tt the alleged nuisance was not a real nuisance (Art. 707).
II. Art. 69.8 is without preJudice to Art. 631 (Ongsiaco v.
_ png~Ja~o, L-7510, March 30, 1957->.

ART. 696. Every successive owner or possessor of


property who fails or refuses' to abate a nuisance in
that property started by a former owner or possessor is liable therefor in the same manner as the
one who created it.
ART. 697. The abatement of a nuisance does not
preclud'e the right ,of any person injured to recover
damages for its p'a st existence. '
ART. 698. Lapse' of time cannot legalize any nui
sance, whether public or private.

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204

ART. 703. A private person may !ile 'an action on


account of a public nuisance, if it is specially injurious to himself.
V~RT. 704. Any private person may abate a publit.~
l'" (" J?Uls~nce wh~ch is specially injurious to hil1l by re..... fl moymg, or .If necessary, by destroying the thing
whIch constitutes the same, ~t commjttin.,g a
c..\~
brea~h pf the peace, or doing unnecessary injury.
But It IS necessary:
(1) That Jiemand be first made upon the owner
or possessor of the property to abate the nuisance;
(2) That such d&mand has been rejected;
.(3) That th~ abatement be approved by t.he distl'l~t health offl&er and executed with the assistance
01~) local police; and
.
That the value of the destruction does not
.~ceed three thousand .pesos.
ART. 705. The remedies against a private nui
sance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings,

1. See. Note to Art. 700.

ART. 701. If a civil action is brought by~n


o~ the Jllal!!ienance of a publiC-Duisance, such action shwbe commenced by the city or municipal
mayor.
ART. 702. The district health officer shall determine whether or not abatement, without judicial
proceedings, is the best remedy against a public
nuisance.

1. Under the Manila charter (R.A. 409) the summary


abatement of illegal constructions is entrusted to the' City
Engineer, and its provisions control those 'of the Civil
Code (Sitchon vs. A.quino, 52 a.G. 1399).

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205

A. P'ublic nuisancesa. Remedies against them:


1) Criminal prosecution.
2) Civil action. (injunction, abatement, damages) ; or
3) Abatement 'Without judicial proceedings
("summary abatement") (Art. 699).
b. P'tosecution of actions:
1) The district health officer shalli) Take care that one or all of the remedies against public nuisance are avaiied
'of (Art. 700).
ii) Determine whether or not extra judicial
abatement is the best remedy against a
public nuisance (Art. 702) .
Note : But clearing of highways is entrusted to
t he City Engineer of Manila (Sitchon vs.
Aquino, 52 a.G. p. 1399).
2) The civil action .by reason of m aintenance
of a public nuisance:

1. Regulation of nuisances:

ART. 706. Any person injured by a private nuisance may abate it by removing, 01' if necessary by
destroying the thing which constitutes the nuisance.
without committing a breach of the peace 01' doing
unnecessary injury. However, it is indispensable
that the procedure for extrajudicial abatement of a
public nuisance by a private person be followed.
ART. 707. A 'p rivate person or a public official
extrajudicially abating a nuisance shall be liable fo:!'
damages:
(1) If he causes unnecessary injury; 01'
(2) If an alleged nuisance is later declared by
the courts to be not a real nuisance.

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206

B. Private nuisancesa. Remedies available against them:


1) Civil action (injunction and damages) ;
2) Extrajudicial abatement, by any person injured (Art. 705)i) By removing or destroying, if necessary the thing constituting the nuisance;

i) Shall be commenced by the city or municipal mayor (Art. 701).


ii) May be filed by a private person if the
public nuisance is specially injurious to
himself (Art. 703).
3) Extrajudicial abatement may be availed of
by private persons (Art. 704).
i) By removing 01" destroying the thing
constituting public nuisance.
ii) Conditions required are:
aa) That it is specially injurious to
the abater, that is, injury beyond
the "average", because of special
circumstances.
ab) That a previous demand to abate
must be made on the owner or
possessor of the property originating the nuisance.
ac) That the demand be 1 ejected.
ad) That the abatement be apP1'0'ved
by the district health officer.
ae) That it be executed with the assistance of the local police.
at) That the value of the destruction
does not exceed 'P3,000.00.
ag) That abatement be made without
committing breach of the peace.
ah) That it be made without doing
unnecessary injury (Art. 704).

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207

son," it refers to one who has not participated in t he

I. Who are third persons?


A. Where the law speaks of "prejudice to a third per-

ART. 709. The titles of ownership, or of other


rh!.'hts over immovable pronerty, which are not
duly inscribed or annotated in the Registry of Property shall not prejudice third persons. (606)

A. A register signifies the act of annotation. and includes the book or memorandum where this notation
is made; by extension, it also meang the office where
these annotations are made (De Diego).B. The Registry of Real Property may be defined as
a public center where the trne condition of :re~l estate is made clear by registering all transferable title
of ownership and of real rights which affect "it and
even where the capacity of free disposition on the
part of an individual is modified (Sanchez Roman).
II. Purposes of the principle of publicity:
A. To give notice of the true status of property.
B. To record transmissions and modifications "of real
rights.
C. To prevent frauds.
D. To guarantee the effectivity of rights (De Diego).

1. Concept-

ART. 708. The Registry of Property has for its


object the inscription or annotation of acts and contracts relating to t he ownership and other right3
over immovable property. (605)

Title IX.- REGISTRY OF PROPERTY

iii) Observing the procedure for

or doing unnecessary injury; and


abating
public nuisances without judicial proceedings (Art. 706). See A, b, 3, ii.

ii) Without committing breach of the peace

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208

ART. 711. For determining what titles are subiect


to. inscription or annotation, as well as the form,
effects, and cancellation of inscriptions and annota~ions the manner of keeping the books in the RegIstry, and the value of the entries contained in said
q~:)Qks, the provisions of the Mortgage Law, the

I. The word "public" is a comprehensive, all-inclusive term.


Properly construed, it embraces every person. The interest need not be of a pecuniary character (Subido vs.
Ozaeta and Villanueva, 45 OG No.9, Sept. 1949, Sup.,
p. 11).

ART. 710. The books in the Registry of Property


shall be public for those who have a known interest
in ascertaining the status of the immovables or real
rights annotated or inscribed therein. (607)

254).

2.09

The third system of registration referred to under "special laws" is Section 194 of the Revised Administrative
Code, as amended by Act No. 3344, under which registration is made "without prejudice to third persons having
better rights."
11. . As to powers of the Register of Deeds} see Reg. of
Deeds vs. Hi Caiji, 52 a.G. 4233; Smith Bell & Co. v.
Reg. of Deeds, 50 a.G. 5293.

Land Registration Act, and other special laws shall


govern. (608a )

act or contract that was registe:t:ed (Guido vs. Borja, 12 Phjl. 718).
B. Where the law states that a "third person cannot be
prejudiced," it refers to one who bases his right on
a registered title (Sison vs. Ramos, 13 Phil. 54).
See Art. 1126.
II. A person who has actual knowledge may be bound w.itho:ut registration (Tuazon vs. Reyes, 48 Phil. 844).
III. The owner is not 3. "third person" within the meaning
of this principle. Prescription may run against him as
a passive subject in favor of another as an active subject
although the latter has no registered rights (Ro~as vs.
Aguirre, 9 Phil. 475). But not if the land is covered by
(a Torrens Title.
\lV. Registration confers no righ~ in the following cases:
A. A simulat~le (Cruzado vs. Bustos, 3'4 Phil. 17).
B. A 1heriff's sale made without the necessary legal notice; - (Borja vs. Ad dison, 44 Phil. 895).
C. A j orged deed (Dupilas vs. Cabacufigan, 36 Phil.

r.

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210

H. Kinds 01' classes Of modes (Art. 712).


A. Original modes (independent of the preceding title
or right) :
a. Occupation;
b. Acquisitive Prescription (adverse possession) ;

I. The theory of Mode and Title in acquiring ownership


or real rights emphasizes the distinction between the
right to a thing and actual OWNERSHIP or REAL
RIGHT over it. To give rise to ownership or a real right
it is not enough that there be a right or claim to the same,
however justified; that right or T ITLE, arising from
a juridical act, must be completed by fulfilling certain
conditions imposed by law. Hence, ownership or .real
rights are acquired only pursuant to a legal process or
MODE.
TI TLE: The jur idical justification for t he acquisition or
a t r ansfer of ownership or r eal right. (Distinguish from
Anglo American "title" which means owner ship) .
MODE: The actual process of acquisit ion or transfer of
ownership or real rights. (Sanchez Roman).

ART. 712. Owner ship is acquired by occupation


and
, by intellectual creation.
~fOwner~hip and other :eal rights over property'
~I are acqUIred and t r ansmItted by law, by donation,
~~y testate and intestate succession, and in conse~
quence of certain contracts, by tradition.
They may also be acquired by means of prescription. (609a)

PRELIMINARY PROVISION

DIFFERENT MODES OF ACQUIRING


OWNERSHIP

BOOK III

211

III. Compa1'ed 'With Obligations: The modes of acqumng


ownership and real rights are limited, unlike the ways of
acquiring personal rights (credits and obligations)
which are. unlimited and arise whenever there is the will
to create them. Thus, assent of the parties, manifested
in any form, generally suffices to establish obligatory
rights, but is insufficient by itself alone to give rise
to or transfer real rights.
.
IV. Extinction of 0~~ner8hip and 'real 1ights: This is not
expressly provided by the Code.
Kinds (from Colin-Capitant, Civil Law) : A. Absolute (extinguished for all persons) :
a. Physical destruction of the corporeal thing
owned; .
b. Juridical destruction-the thing goes out of the
commerce of man.
E. Relative (transmission, where the title is extinguished
only for the predecessor in interest) :
a. By law (accession, prescription, finding of lost
movables, confiscation [e.g. war]) ;
b. By the will of the party (succession, contracts
of transfer) ;

c. Law (operation of law): (registration under Act


.496; estoppel of title under Art. 1434; marriage
under the absolute community _syst~m) .
d. Creation (Intellectual).
B. Derivative modes:
a. Succession mortis causa;
b. Tradition as a result of certain contracts:
1) Sales,
I
2) Barter,
These contracts give rise
3) Donation,
to transmission of own.4) Assignment,
ership upon delivery of
5) Mutuum (loan of
their object.
consumption) .

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la::Tb

212

715. ~hle lright to hunt and to fish is reguy speCIa aws. (611)

not~; a~~ti~3eb~W;:::~;~i~~. ar~)ce of land can- .

1',

suc as ammals tn-at aI'':>


and fi~hing, ~idden~u.~~
ti~":~Ies, are acqUlfeQ15'Y occupa-

an~ a~~~d~nedunting

b' t f h

aI'~~it~~Jt ~~i~~~rQp~ableb~ nature which

th

Title I.-OCCUPATION

c. ' By
destruction
of prim' title (nullIty' reSCISSIon,
..
ed
"
r em~tlOn resolutory condition, expropriation
execution) ;
,
d. Abdicative waiver or abandonment (Art 4)'
Ex~ept where i~ is (1) against the law or ~ubli~
polIcy or (2) prejudicial to the connected rights
of another, unless the latter consents
1) R~quisites of abdicative waiver: .
.~) Capacity (generally to dispose) ;
, 11) Intention to lose the right.
aa) Th~ act is purely ' unilateral and
does not require acceptance.
'
. 2) Effects of waiver:
i) When the right waived is one detached
from ownership ~e.g. usufruct, mortgage, etc.) the right merges in the
owner.
,.
)
, "
ii) W~en the right is owned
.
in common.
waIve~ by a co-owner accru'e s to th~
benefIt of the otner co owners.
iii) When ow~ership is , waived, and the
property IS real or immovable it reverts .to the State; if movablE:, it be'
comes res nullius.

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213

ART. 716 The owner of a swarm of bees shall


have a right to pursue them to another's land, indemnifying the possessor of the latter for the damage. If the owner has not pursued the swarm, Q1'
ceases to do so w' . wo consecutive d
,' th~
possessor of the Ian "may occupy 'or retam the same.
The owner of domesticated animals may also claim
them within twenty days to be counted from their'
occupation by another person. This period having
expired, they shall pertain to him who has caught
and kept them. (612a)
ART. 717. Pigeons and fish Which from their
respective breeding places pass to another pertaining to a different owner shall belong to the latter,
provided they have not been enticed by some artifice or fraud. (613a)
.ART. 718. He who by' chance disCQvers hidden
treasure in another's property shall have the right
graIjted him in article 438 of this Code. (614)
"\" ,ART. 719. Whoever finds a movable,which is not
teasure, must return it to its previous possessor.
If the latter is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding has taken place.
The finding shall be publicly announced by th~
mayor for two consecutive weeks in the way he
.
r
deems best. .
.
If the movable cannot he kept without deteriora, tion, or without expenses which considerably dimi~
nish its value, it shall be sold at public 'a uction eight
days after .the' publication. , '
. .,
Six months from the publication havirtg elapsed
without the owner having appeared, the thing found ,
or its value, shall be awarded to the<fiIider. The
finder' and the ".owner shall be" obliged, as the case
may be, to reimburse the expenses. (615a)

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1[

. I

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214

pulsion). '
'
1). Requisites (hunting 01' fishing) :
"
i) Seizure in open sea~on (for closed sea,
sons, see Act 1798) ;

A.;JJI Gnimals-.
a _ Wild .animals (roaming free in- their natural
state, suffering contact with m~m oniy by com-

lUr Kinds of accujJatwn,:

D. No own~1' (res nl111ius) or abandoned property (res


derelicta) ; '
a. Real prope~ty upon abandonment revelts to the
, State (Art. 714) unless ownership is first ac, ' quired by-,adverse possession of a third person.
E: Observance, of conditions, prescribed by lau:. .
'

320).

T. Concept: It is the "acquisition of ownership through


seizure of corpoi-eal things that have no owner, made
with intent to acquire them and done according' to rule8
laid down by law." (Partidas)
A. But if the acquirer is married under the system of
community of gains, the property occupied goes to
the conjugal partnership (Art. 155), not to the
occupier alon,e.
'
II. Requisites:
A. Corporeal personal property;
B. Prop~rty susceptible of" app'rop'riation (not 1'es com,
munes) ;
C. Seizu1'e with intent to appropriate;
a. Seizure by persons acting in company produces
co-ownership (Punzalan vs. Boon Liat, 44 Phil.

OCCUPATION

720. ~f the owner should appear in time,


he shall be oblIged to pay, as a reward to the finder,
one-tenth of the sum or of the price of the thing
found. (616a)

ART:

II

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215

'to

<:'

b. Tamed animals (wild by nature but have become


accustomed to man).
1) Genemlntle: They belong to the tamer, but
upon recovering freedom are susceptible to
occupation unless claimed within 20 days
fl'om seizure by another (Art. 716).
2) Special 1'ules:
i) Pig eons a'iui fish which pass (voluntarily) from their breeding place to another
belonging to a different ovmer, belong
to the latter unless enticed by tr ickery
01' f'raud (Art. 717).
ii) Swar1ns of Qees are lost to the owner
and are acquirable by occupation if the
pre:Vi~us owner does not pursue them
(or abandons pursuit) for tw o ( 2)
consecutive clays (Art. ' 716).
aa) The owner may pursue them into
the enclosed estates of another but
must indemnify the latter for
damage (Art. 716).
ab) The pursuer must ask the consent,
of the owner of the enclosed
estates to' enter the same..
, a"c) After the. e~piration :Q.f t~iJO days
,from cessation of pursiiit,th~J)ees.. '.:~.
belong one who caught ~1\dl.iept ')::;,,;/ '
them~
. :~,
<:,:~. ,~'.; .,;'~':'
e, Tame animals (ordinarily born and r~r~~' u~der-,' , ,
man's ,eontrol, including tamed ' aniinals aceus' ,',
tomed to- return>" (Art. 560),
'
',
1) ' Thes~ 'are not acquired by occup~tion except '
; ..
wlrenabandoned, The oWner~ inay clann..
them from the finder,_barring prescription,

ii) By means not prohibited (like poison


or explosives) (See Acts 1499 and 4003,
CA Nos. 115, 297) (Fisheries Acts) .

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Other-

216

B. Other personal p1operty.


a. Ab.a ndoned--may be acquired by occupation.
b. Lost-(not known to be abandoned) (Art. 719).
1) If the former possessor is known, the finder
must restore the thing to him.
2) If the former possessor is not lmown.
i) The finder must deposit the thing with
the mayor of the town where the finding took place.
ii) The mayor must advertise the
. finding
for two consecutive weeks in the manner he deems best.
aa) If thing is deteriorable or expensive to keep, it shall be sold at
auction 8 days after publication
and the price deposited.
ab) If not deteriorable, the thing must
be preserved.
iii) If the o:wner does not cZaim it within
6 ~onths from the last publication, the
thmg shall be awarded to the finder.
If the owner appears, he 'recovers the
thing, paying reward to the finder, on
tbe basis of 1(1Q of the price, plus costs. .
Bllt the owner may abandon the thing
in favor of the finder.
3) The finder wh~ doeg not follow the above
.' procedure ~~mmtt~ ;thet,tan.d can p.ot acquire
. .. ,th~. thing qy prescription, even if extraordin~r.Y (Art. 11'3q):,'. ,. . ;. . . .
.4 ) LOst .p rQperlymust bel dist.i~g~ished from
.abandorl:e"d property,' wh~re the owner's
waiver ef his. rights is kl').own or manifest.

WIse Art. 719 is applied.


For estrays, see Adm. Code, sees. 538-544.

o~ special laws (on stray animals).

OUTLINE OF ' PHILIPPINE CIVIL LAW

n.- INTELLECTUAL

CREATION
ART.

217

721. By intellectual creation, the following


persons acquire ownership:

Title

5) Marine SaZvage is governed by special law


(Act No. 2616).
c. Hidden treasure (see accession)-the law
grants-1) To the finder: 1/2 by occupation;
2) To the land owner: 1/2 by accession (Art.
718).
i) Except: in case of persons married under the conjugal partnership system,
when the share, as finder or as owner,
goes to the partnership (Art. 154).
d. Marine products (shells, plants, etc.) :
These belong to the first occupant, when cast
ashore. .Otherwise, apply the fishing laws.
e. Jetsam--things (not marine products) cast into
the sea. Kinds-1) L-igan-(resting at the sea bottom) . .
i) Lying under the open sea-These will
belong to the finder or salvor.
ii) Lying under territoriaZ waterS-:The
rules on sharing will be governed by the
Salvage Law, Act 2616 (not over 50%
to the salvor, if no contract determines
otherwise) .
2) FZotsam (floating on the surface) :
These belong to the State; but the rule is
without prejudice 1.10 salvage rights (Act
2616) .
3) Wreck (cast ashore)-These have to be
deposited with the authorities in accordance
with Art. 719 (see Law of Waters, Arts. 6
and 7) .

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218

1. Copyrights.
A. Kinds.
a. C01nnwn law copyright is the right of the author
to prohibit publication of his works without hi~
authority or consent. These embrace literary

(1) The author with regard to hisliterary, dramatic, historical, legal, philosophical, scientific ' or
other work;
(2) The composer, as to his musical composition;
(3) The painter, sculptor, or other artist, with
respect to the product of his art;
(4) The scientist or technologist or any other
person with regard to his discovery or inven-:tion. (n)
ART. 722. The author and the composer, mentioned in Nos. 1 and 2 of the .preceding article,
shall have the ownership of their creations even
before the publication of the same. . Once their
works are published, their rights are governed by
the Copyright laws:
The paintel', sCulptOl'or other al;tist shall have
dominion ovel' the product of his art even before it
is copyrighted.
The scientist or technologist has the ownership
of his discovery or invention even before it is patented. (n)
ART. 723. Letters and other private communications in writing are owned by the person to whom
they are .addressed and delivered, but they cannot
be published or disseminated without the consent.
of the writer or his heirs. However, the court may
authorize their publication or dissemination if the
public good or the interest of justice so requires. (n)
A~T. 724. Special laws govern copyrig-ht and patent. (429a)

OUTLINE OF PHILIPPINE CIVIL LAW

E.

D.

C.

B.

219

works, including private correspondence (v. Art.


723). But if the work is unqualifiedly released
to the public, without securing statutory copyright, it becomes public property.
b. statutory copY1'ight is a monopoly in:
1) Publication, printing, sale and reproduction
of the author's intellectual creations;
2) Translations, arrangements and adaptations;
3) Exhibitions, performances, reproductions;
4) Other lawful uses, (Act 3134) including
radio broadcasts (Rome Convention of 1928).
c. In p1"lVate c01Tespondence, distinguish the author's
copyright from ownership of the C01"[JUS of the
letter, which is like any other movable.
Laws on copyright:
a. The law of January 10, 1879 on Intellectual Property (extended to the Philippines on May 5,
1887) .
b. Act 3134 (as modified by' Rep. Act No. 167) ,
No cOPY1'ight may be obtained ona. Works on the public domain;
b. Official documents;
c. Speeches, lectures, dissertations in courts, administrative tribunals, assemblies and public meetings;
d. Immoral or unchaste works.
Procedure: The steps are-a. Application with an affidavit as to the date of
publication;
b. Deposit of two complete copies ;
c. Publication with I:lotice of the copyright ("copyright, name, date") or notice of reserved publication (Phil. Educ. Co. vs. Sotto, 52 Phil. 680 ).
1) Absence of notice renders an infringement
innocent (no damages).
Duration: The protection lasts for 30 years renewable for another 30 years. In case of serial publica-

OUTLINE OF PHILIPPINE CIV IL LAW

, .

--

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220

B. Procedure in the Patent Office (before the Commissioner of Patents, whose decisions are directly appealable to the Supreme Court) :
a. Sworn application by the true and actual inventor or his heirs, representatives or aSl:!igns;
b. Specifications (description and claims) ;
c. Payment of fees;
d. Foreign applications on a reciprocity or a treaty
basis should be filed here within 12 months.

A. Basis.
a. There must be an invention (exercise of ingenuity, beyond mere mechanical skill in the art, to
produce a new and useful result) ;
b. Of a new and usefu~ machine, product or substance, of possible advantage to the public.
c. Not previously known or used, or described in
printed publications, or in public use or on sale
in the Philippines or covered by any prior patent;
d. Includes new and original industrial deHigns
(shape, pattern or appearance).
e. The invention is not patentable if:
1) Contrary to public order, morals, public
health or welfare;
2) It is an abstract idea,. principle or theorem.

lI. Patents (Republic Act No. 165).

tions, 40 years from the publication of the first


volume, renewable for an equal period.
F. Remedies for infringement are:
a. Inj unction;
b. Actual damages or damages not less than P200
nor more than P10,000.00.
G. Foreign copyrights: Registration may be had on the
basis of reciprocity.
H. Copyrights (as distinguished from the printed copies) are not subject to levy or attachment..

OUTLINE OF PHILIPPINE CIVIL LAW

221

I. Definition-T:radition is a "derivative mode of acquiring


?wI1er~hip and other real rights whereby, there being
mtentIon and capacity on the part of the grantor and
grantee and pr e-existence of said rights on the part of
the grantor, they are transmitted to the grantee through
a just title." (Sanchez Roman) .

TRADITION

C. Term of the Patent: It is for 17 years. The annual


fee is payable from and after 4 years from issuance.
.D. Compu~01"Y ~icensing may be resorted to ifa: The patent is not commercially worked; or
b. The demand is not adequately met; or
c. A new trade or industry is p1'evented or 'unduly
r.estrained; or
d. It is needed for public health or safety.
E. A patent confers exc~usive 7ight to make, use or sen
in the P4i1ippines, except (1) as against.the govern.ment, and (2) use for research, experiment or instruction.
F. RemedieS' for infringement (before ordinary courts) :
a. Injunction;
b. Damages up to the extent of th7"ee times the actual amount. These may be in the form of royalty.
1) These damages are not recoverable if no
notice is given of the patent or after 4 years
from infringement.
G. F07'eign patents are recognized upon the basis of
reciprocity.
H. Cancel~tion may be had, after hearing in the Patent
Office; on the following groqnds:
a. That it is not new or patentable;
b. That there has been faulty specification;
c. That the patentee is not the true or actual inventor, or assignee thereof.

OUTLINE OF PHILIPPINE CIViL LAW

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222

III. Kinds of tmdition under New Civil Code:


A. As to immovable property:
a. Realr-actual transfer of control and" possession,
with intent to pass ownership or real right over
the property (Art. 1497).
b. Fictitious1) By publicinstrument--The execution thereof is equivalent to the delivery of the thing,
object of the contract (Art. 1 '!98).
Exceptions :
i) Where the deed provides othe1'wise or
delivery can not be dearly inferred
(Art. 1498);
ii) Where the transferor does not have the
thing at his disposal, so that real delivery could not be made even if desired
(as when "a stranger is in actual possession) (Addison vs. Felix, 39 Phil.
404; Montenegro vs. Roxas, 53 Phil.
723) ;
iii) Where real property is 1'egiste1'ed (Tbrrens Title) ; then the document's registration is essential to bind the land (Act
496 and Spanish Mortgage Law) or
third persons. However, the tendency
of the decisions of our Supreme Court
is to the effect that as between the
immediate parttes, recording is not essential even with respect to properties

II. General Tule:


A. "Non nudis pactis sed traditione dominia rerum transferuntur" (not mere agreements but tradition transfers ownership vf things) (Fidelity Deposit Co. vs.
Wilson, 8 Phil. 51).
B. The creditor acquires no ?'eal right over the thing
until it is delivered to him (Art. 1164).

OUTLINE OF PHILIPPINE CIVIL LAW

223

B. As to movables:
a. Realr-actual delivery.
b. Fictitious1) Symbolic-by delivery of the keys of the
place or depository where the thing is stored
or kept (Art. 1498, par. 2);
2) By public 'instrument-"'--see supra A, b, 1. .
3) By i1ulm'sement or transfer of a negotiable
document of title (Arts. 1513, 1514) ;
4) By mere consent 01' agreement of the parties
(Art. 1499)i) If the thing can not be manually transferred to the possession at the transferee at the time of agreement but there
is no legal obstacle to the transfer of
possession (longa manu); or
ii)" If the transferee already had it in his
possession for any other reason (brevi
manu) ;
-But without prejudice to strangers in
good faith.
iii) Traditio
constitutum possessoriun~,
which takes place when'the owner of the
thing alienates it but continues in pos"~
session in "the concept of a tenant, or
other subordinate right (bailee).

3) By t?'aditio constitutum possessoriunt, where


the transferor agrees to hald the thing for
and in behalf of the transferee (Art. 1500).

with Torrens Title, tradition by public


instrument being sufficient (Galasinao
vs. Austria, 51 OG, (6) 2875; Carrillo
vs. Salak, L-4133, May 13, 1952; Medina
vs. Imaz, 27 Phil. 314).
2) By ?'ecord--see supra, (1-iii) (Act 496) ;

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I. The donations above referred to (Art. 727) remain valid.
This article applies to donations the rule of testamentary
dispositions (Art. 873), as if defective donations could
not be cured. Compare this with the rule in contracts,
Art. 1183 (contract is void).

225

224

726. When a person gives to another a thing


or right on account o~ the latter's merits ?r of the
services rendered by hIm to the donor, prOVIded they
do not ~onstitute a demandable debt, or ,when the
gift imposes upon tlie dor!ee a ~urden whi~h is less
than the value of the thmg gIVen, there IS also a
donation. (619)
ART. 727. Illegal or impossible conditions in
,simple and remuneratory donations shall be considered as not imposed. (n)

security, or allowing prescription to be completed, do not constitute donations.

Note: Hence, constitution of a mortgage, or giving

~RT.

to benefit the donee (animus donandi). '


eIllphasis in donations is on liberality,
mere gratu itousness. Thus, commodais gratuitous but is not donation.

d. Consequent 'impoverishment of the donor (diminution '-of his assets).

c. intention
1) The
not
tum

b. ' Irrevocability by the donor.

R Essential features of true donations:


a. Ali'enat'ion of p'i'Ope1,ty by the donor during hi's
lifetime, which is accepted. '
1) A. commitment whereby services are giv~n
gratuitously, is a binding transaction (Arroyo
vs. Hospital de San Paplo, 4.6 O.G. No. 1
(Sup), 115).

ourLINE OF PHILIPPINE CIVIL LAW

tract since it requires consent of both donor and donee


though it produces obligations only on the side ot" th~
donor. The French Civil Code (followed by the Italian
and the Spanish) termed it "an act" at the insistence
of Napoleon who could not conceive (although erro-'
neously) that a contract could be unilateral in effects"
(Scaevola.)
,
A. Elements in common with other contracts:
a. Consent and capacity of the parties.
b. Subject matter
c. Cause (liberality).
d. Form as prescribed b yaw.
I

I. Concepi: "Modern writers ag-ree that donation is a con-

ART.

725. Donation is an act of liberality whereb~ a person disposes gratuitously of a thing or


rIght In favor of another, who accepts it. (618a)

, NATURE OF DONATIONS

, CHAPTER ' 1

Title III.-DONATION

transferee, divesting the transferor of it. Without the second, the -transferor remains the owner even if
, physical possession changes; but he may be sued for
breach of contract.

In, the

IV. Our theory of tradition separates the consent that pertects the contract from the consent to the vesting of title

C. As to incorporeal property (Art. 1501) :


a. By public instrument,
b. By delivery of titles of ownership, or
c. By exercise of 'the 1-ight by the transferee with
the consent of the transferor (Quasi-tradition).

OUTLINE OF PHILIPPINE CIVIL LAW

..
.

I~

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ART. 730. The fi xi ng of au ,event or the i~


()f a suspensive condition, which may t~place beyond the natural expectation of life of the donQr,
does not destrov the nature of the act as a donation
{;:J:r-vivos, unless a contrary intention appears. (it)

ART. 729. When the donor intends that the donation shall take effect during the lifetime of the
donor, though the property shall not be delivered
till after the donor's death, this shall be a donation
inter 'vivos, The fruits of the property from the
time of the acceptance of the donation,' shall pertain to the donee, unless the ' donor provides other,
wise. (n)

728. Donations which are to take effect upon


the death of the donor partake of the nature of
testamentary provisions, and shall be governed by
tne rules established in the Title on Succession,
.
,
(620)

II. But illegal or impossible conditions in an one1'OUS donation will render such donation void (Art. 1183) since
the rules of contracts govern (v. Art. 733) .

OUTLINE OF PHILIPPINE CIVIL LAW

I.

226

ART. 731.. When it person donates something, sub-


Ject to the' zesolutorv condition ef the donor~s Hm'. vival, there is a donation inte1" viL'o8. (n)
ART. 732. Donations which are to take effect
i~,ter vi'vos shall be governed by the general proviSIOns on contracts and obligations in all that is n()t
determined in this Title. (621)
ART. 73~. Donations with an onerous cause shall
be governed by the rules on contracts., and remuneratory donations by the provisions of the present
..Title as regards that portion which exceeds the
value of the burden imposed. (622)

'"

'r

a.

227

3) Differential tests:
i ) For donations "mortis causa"aa) In mortis causa donations, death
of the donor ahead of the donee is
a suspensive condition (an "if")
for the existence of the donation.

Those made between future spouses (Art.


130).

Exception:

[. Kinds of Donations:
A. By their effectiveness (revocability at the donor's
option) .
Inter vivos-These donations take effect (as
alienations of property) upon acceptance and
thereafter are no longer revocable by the donor
alone. As to form they are governed by Articles
748 and 749, except donations propter nuptias
which are governed by the Statute of Frauds
(Art. 127).
b. Mortis Ca'u sa-These donations are effective as
gratuitous dispositions of property upon the
death of the donor (Art. 728). They are revocable at will, and as to form they are governed
by the rlJles of testamentary succession (wills).
1) A distinction must be made between dona- .
tions m01,tis causa'and donations inter vivos
subject to .a ,suspensive term ("at death of
donor"), i.e., between transfer of title and
transfer of mere possession.
2) Importance of the distinction: Mortis causa
donations partake of the nature of testamentary provisions and are governed by the rules
of testamentary successions,' as to requisites
and form (Tuason vs. Posadas, 54 Phil. 289;
Guzman vs. Ibea, 67 Phil. 633; Art. 728;
,TS 8 July, 1943). Form is that of testaments.

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"

228

ab ) Characteristics of dispositions
post m~rtem:
aba. The transferor retains ownership (full or naked) and
con.tJ;"ol of the property while
alive;
. abb. Before his death, the transfer
. is revocable
. at :Will',
abc. The transfer will be void
if the transferor should survive the transferee (Heirs
of Bonsato vs. Court of Ap.~.
peals .G.R. L-6600, July 30,
.
1954, 50 OG. 8568).
c) Where the donation merely transfers administration of the prop: erty before the donor's death it
' .
'
IS rn,ortts causa (Carino vs. Abaya,
70 Phil. 182).
ii) For donations "inter vivos"aa) In donations in,ter vivos with de.
ferred execution tintilthe death of
the donor, there is no option to
revoke at will before the do~or
dies, even if transfer of actual
(physical) possession is suspended
until then (Art. 729) (Concepcion
vs. Concepcion, G.R. No, L-4225,
Aug. 25, 1952).

of the donee (Bautista vs. Sa-bi.


niano, G.R. No. L-4236, Nov. 18
1952).
'

the donation at will at any time


bef01'e death, without the consent

and the donor reserves (expressly


or impliedly) the option to 1'evoke

OUTLINE OF PHILIPPINE CIVIL LAW

'

I! ,

229

panta vs. Posadas, 52 Phil.


557) (not revocable at will).
ad) lJesigMtion as mortis causa in
the deed of donation is not controlling (Laureta vs. Mata, 44
Phil. (}68) . Neither is the provision that the donation is to take
effect at tnedeath of the donor
(Co.ncepcion vs. Concepcion, . L4225, Aug. 25, 1952).

cation are specified (Za-

ab) When the donor stated in the deed


that he will not dispose or take
away the land "because I am reserving it to him (donee) upon
my death", he in effect expressly
renounced the right to freely dispose of the property in favor of
another (a right essential to full
ownership) and manifested the
irrevocability of the conveyance
of the naked title in favor of the
donee (inter vivos) (Cuevas vs.
Cu~vas, 51 O.G., No. 12, 6163).
~c) There is nc reserved right to revoke at will and, therefore, the
donation is inter vivos even if
there is no immediate delivery,aca. If the donor reserves a lifetime usufruct of the property (Balaqui vs. Dongso,
53 Phil. 6.5 3).
acb. If the donor wa1'rants title
to the property donated
(do);
ace. Where the causes of revo-

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230

iv) Donations mortis causa do not exist


independently under the Code, . being
merged with testamentary dispositions
(Bonsato vs. Ct. App., supra) Only .
those inter vivos are tr-ue donations.

. af) When a person donates something


subject to the resolutory condition
of the donor's survival, the donation is inter vivos (Art. 731), beCause donation takes effect until
the time the resolution takes place.
iii) Doubtful casesaa) The sole fact that the donatio'n
was made because of the love and
affection of the donor for the donee is not a safe criterion for determining whether the donation is '
inter vivos or mottis causa (Howard vs. Padilla and the Court of
Appeals G.R. L-7064, 7098, April
22, 1955-which modifies the ruling in Balaqui vs. Dongso, 53 Phil.
653). The reason is that legacies
(mortis causa) are also motivated
by affection for the legatee.
ab) In case of doubt, the donation is
presumed inte1' vivos.

ae) The fixing of an event, or imposition of a suspensive condibon


which may (or may not) take
place beyond the natural life .expectancy of the donor, does' not
make the donation mortis causa,
unless a contrary intention appears (Art. 730).

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.,

OF PHILIPPINE CIVIL LA \~r

231

1) If the burden is less than the value of the


donated property, the donation is governed
by the rules of contracts up to the extent of
the burden, and by the rules of donation as
to the excess (Art. 726).
2) If the value of the burden is not dete-rminable when the donation is made, it is governed wholly by the rules of contracts (Art.
733) as a donation with onerous cause (con
causa onerosa).
3) Where the condition is to support the donor
or his family in futuro, the donation is with
an onerous cause and is governed by law of
contracts (Carlos vs. Ramil, 20 Phil. 183)
and need not be in a public instrument even
if real property is involved (Manalo vs. .De
Mesa, 29 Phil. 396).
c. Remune1'atory: Those made for services already
rendered to the donor, (causam pmeteritam) not
cun's tituting recoverable debts (e.g., saving- of
the donor's life).
1) A donation given by a corporation to the
heirs of a person out of gratitude for the
deceased, because of .services rendered to the
corporation which do not constitute recoverable debts, is a remuneratory donation. . Such
is equivalent to a gratuity and is not an
"ultra vires" act of the corporation. (Maria

a. Simple: These donations are made out of pure


liberality or because of the merits of the donee.
b. Onerous (with onerous cause) : Th'ose made with
a burden imposed upon the donee. These are not
true donations, being subject to the law of contracts.

B. By the motive (Art. 726).

OUTLIN)<~

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232 .

3) Remune'rato1'Y donations distinguished from


onerous donations:
i) The problem: It is to be observed that
the difficulty in arriving at the correct
distinction arises from the fact that the
Civil Code speaks of a "burden" .in Articles 726, 733, and 754. ,The question,
then, hinges on this point-what are
the burdens referred to?
ii) The importance of the distinction: The
distinction must be made _in order to
determine the 'r egime -which would
govern the donation--as to whether the
provisions on Obligations and Contracts
would control or - those on Donations
(Art. 7.33).
iii) The various theories:
aa) "Most authors believe, with Mucius Scaev-ola, - Jsabal, Castan, De
Buen, Bonet Ramon, and Val.
verde y Valverde, that remuneratory donations are really those
made in consideration of "services
rendered to the donor provided
they do not constitute recoverable
debts", fonOwing the traditional
concept of such donations: and
held that the use of the term "re..

Clara Pirovano vs. De 1a Rama Steamship


Go. Inc., G.R. L-5377, Dec. 29, 1954).
2) Remuneratory donations must be distinguish'ed from the payment of a nat'ural obligation. A debt does not exist in the formei',
while in the latter case, it exists in a qualified sense, a.nd there is payment rather than
donation.

OUTLINE OF PHILIPPINE CIVIL LAW

muneratory" in Art. 622 (now


Art. 733), dedaring such dona-.
tions to be subject to the rules of
donations only in the portion exceeding the value of the burden
or charge imposed, is a misnomer,
because where a charge is imposed
-upon the donee, there is an onerous donation (Scaevola, Isabal)
or at least a negotium mixtum
c.um donat-ione; and where a
charge js imposed on the donee,
it is either a condition or what
the old doctrine termed modus
qualificatus (See notes to Eneccerus~Leliman, CivU Law, Vol. 2,
sec. 125, Sp. tr. by Perez-Alguer;
Bonet Ramon, Derecho Civil, Vol.
2, pp. 65-66)."
"Akin to this doctrine is the
decision of our Supreme Court- in
Carlos vs. Rami!, 20 Phil..I83, and
Manalo vs. De Mesa, 29 Phil. 500,
holding that a donation in consideration of future services to be
rendered is an onerous dOnation,
not a remuneratory one." (Fernandez vs. Fernandez (CA) G.R.
No. 2936-R, March 5, 1954).
aaa) Summary of this first
theoryI - Donation for services 01
burdens:
A. Rendered in the pasta. Constituting recoverable debt = PAYMENT.
233

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234

b. Not constituting recoverable deb t =


REMUNERATORY
DONATION. .
B. Ii'or the future (whether or not the value
ot the thing exceeds
the burdens or charges)=ONEROUS DONATION.
ab) '~~ second line of thou~ht agrees
wIth the first in the view that donations ,f or past services that are
not recoverable debts, are remuneratory; but holds that those donations imposing a burden inferior
in value to that of the thing donated are likewise 1'emuneratm'Y
and not onerous. Wherefore, Art.
622 (now Art. 733) ,should apply
. to both kinds, and when the donation is for ,services, they must be
valued at their just worth, in order
to ~etermine if there is a real dona~ion or not.
Manresa is the
leading exponent of this school
followed by Lopez-Palop, C~ss~
and Puig Pena.
.
_.
"This viewpoint appears supported also by the decision of our
Supre~e Court, through the late
Chief Justice Arellano; in Castillo
vs. Castillo, 23 Phil. 367. "(Fernandez VB. Fernandez, supm).
aba) Summary of the second
theory-

OUTLINE OF PHILIPPINE CIVIL LAW

235

future-a. Consisting of burdens inferior in value to the thing =


REMUNERATORY
DONATION.
b. Consisting of burdens equal to or
greater in value than
the thing donated=
, ONEROUS , DONATION.
ac) "Finally, a third variant is taken
by our Supreme Court in Fernandez vs. Fernandez, G.R. No.
L-2667, Feb. 1?, 1951, wherein it
was pronounced:
". . . a donation for services
previously rendered are remunerative or for a valuable consideration if the services constitute recoverable debts; otherwise, it is
simple donation."
This decision seems to abandon
the Ramil and De Mesa doctrines

I. Donation for services or


burdens:
. , A. Rendered in the past---:
a. Constituting recoverable debt = PAY..
MENT.
b. Not constituting re- ,
coverable deb t =
REMUNERATOR Y
DONATION.
B. R e qui l' e d for the

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236

insofar as they base the criterion


on whether the services were past
or future. Besides, how services
previously rendered can constitute
a burden imposed by the gift upon
the donee, as described in Art. 622
of the Code of 1889 (now Art.
733) , is unfortunately not explained. It would seem that in order that
the gift should impose a 'burden
upon the donee, the latter must be
required to perform or accomplibh
something after the gift is made."
(Fernandez vs. Fernandez (CA)
G.R. No. 2936-R, March 5, 1954).
aca) Sum mar y of this third
theoryt. Donation for services or
burdens (whether past o~
future) ':
A. Co~stituting recoverable debts = ONEROUS DONATION or
PAYMENT.
B. Not constituting recoverable debts = REMUNERATORY DONATION.
iv) The solution:
"We are thus forced to the conclusion that whether the term "remuneratory" in Art. 622 (now Art. 733) applies exclusively to donations that impose a burden on the donee, or whether
such term should also include the donations to reward services spoken of ill '
Art. 619 (now Art. 826), the stubborn ,

OUTLINE OF PHILIPPINE CIVIL LAW

fact is that under the clear wording


of Art. 622 (now Art. 733) , only those
donations that impose a burden on the
'donee should be partly governed by the
law of contracts. 'fhe omission of the
other kinds of donation mentioned in
Ar.t. 619 (now Art. 726) implies clearly that ~ they are not subject to the ex.eeptional regime of Art. 622 (now Art.
733), but are exclusively governed by
the rules of donation."
"Now, gravamen (burden) originally
signified charges or real rights over
property; and this is also the ' sense m
whiCh the word is used in the Ley Hipotecaria. Assuming, for argument's sake,
that it could also mean a personal act
CJr service, the "gravamen" mentioned
. , in Article 622 (now Art. 733) could not
r~fer to past services, for the reason
that said article speaks of a burden
,imposed by ,the donation, and not of one
already existing before it (the donation) was made." (Refer to the discus"sion, ante, in the case of Fernandez vs.
Fernandez (CA) G.R. No. 2936-R,
March 5, 1954).
aa) The above is the Court of Appeals'
reconciliation of the various theories. In brief, the following is
the-aaa) Summary of this last theory:
1. Donation for servicesA. Rendered in the pastra. Constituting recoverable debt = PAYMENT.
237

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238

a. Pure-When the donation is without conditions


or period.
b. ConditiO'/i(1,l,-When the donation is subject to
conditions (future and uncertain events), suspensive or resolutory (Parks vs. Tarlac, 49 Phil.
192).

C. By the effect:

b. Not constituting recoverable debt =


REMUNERATORY
DONATION.
B. For the f u t u r e =
ONEROUS
DONATION.
.
II. Burdens ("g~avamen':)
imposed for the future
only:
A. Where the comparative values of the burden and the thing donated are not deter' minable =ONEROUS
DONATION.
B. Where the comparative values are determinablea. As to the portion
not exceeding the
value of the burden
= ONEROUS DONATIOR
b. As to the portion
exceeding the value of the burden=
STMPLE DONATION.

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239

ART. 735. All persons who may contract and dispose of their I?roperty may make a donation., (624)

PERSONS WHO MAY GIVE OR RECEIVE


A DONATION

CHAPTER 2

A. Hence, if the donor :revokes the donation before learning of the acceptance, there is no donation.
B. Acceptance must be made during the lifetime of both
donor and donee (Art. 746).
C. In contracts an offer becomes ineffective upon death,
civil interdiction, insanity or insolvency of either
party before acceptance is conveyed (Art. 1323).

I. Perfectwn: The donation is perfected (binding) upon


the donor's lea'r ning of the acceptance (Art. 734) because
acceptance is not complete and binding until known I)r
notified to the donor. [Compare this with the rul.. Jf
, contracts (Art. 1319, p. 2)].

ART. 734. The donation is perfected from the moment the donor knows of the acceptance by the
donee. (623)
,

e. Sub modo: When a charge for the benefit of a


, thi'rd pe'rson is to be performed by the donee after
, the _donated property is acquir-ed.

1) Services as burden: (See discussion above:


Fernandez vs. Fernandez, (CA) G.R. No.
2936-R, March 5, 1954).

c. With a period (suspensive or resolutory).


d. Onerous-Wnen the donation is made with a
burden upon the donee. (Refer to the discussions
, -Ante.)

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1. Capacity to accept donations: In general, all persons


not disqualified by law (such as s}:louSes inte.,. se) may
.. be donees (Art. 738).

ART. 738. All those who are not specially disqualified by law therefor may accept don-ations.
(625)

,.

e. Guardians and trustees 'ca.n not donate property entrusted to them .(Art. 736).

c. But affianced 1rdnors may make donations in


their marriage settlements, provided the same is
also executed by the person charged with consenting to their marriage (i.e. parents or guardians) (Art. 128).
d. Husbands cannot donate conjugal property except
as authorized by law (Arts. 162, 174). The rule
applies to a wife managing the conjugal partnership.

b. Minors emancipated by marriage can not donate


real property without the consent of the guardian
. or ,parent (Art. 399).
.

a. The donor's capacity is determined as of the time


of the donation (Art. 737), subsequent incapacity not being material. But if incapacity prevents the donor from learning of the acceptallce
(insanity) there is no donation (~t. 734).

(Art. 735).

.{\. G.apacity to donate: The donor must have capacity,


not only to contract, but to dispose of his property

I. Parties:

ART. 736. Guardians and trustees cannot donate


the property entrusted to them. (n)
ART. 737. The donor's capacity shall be determined as of the time of the making of the donation. (n)

OUTLINE OF PHILIPPINE CIVIL LAW

. ",

241

1. Disqualifications (Arts. 739, 740, 1028).


.
A. By reason of public policy: The following donatIons
shall be void (ab initio) :
.
a. Those made between persons wl!.o were gutlty of
adultery or concubinage at the tIme of the donation (Art. 739, p. 1).
,
1) Conviction is not required: The action rna):
be brought by the spouse of the donor 01

ART. 739. The following donations shall be void:


(1) Those made be~ween persons.who were guilty
of adultery or concubmage at the time of the dona
tion;
(2) Those made between ))erson.s fou1!-d guilty
of the same criminal offense, m consIderatIOn thereof'
'(3) Those made to a ,public officer or ~is :v~fe,
descendants and ascendants, by reason of hIS offIce.
In the case referred to in No.1, the action for
declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the ~onoy
and donee may be proved bv preponderance of eVIdence in the saine action. (n) ,
ART. 740. Incapacity to succe.ed by will shall be
a.pplicable to donations inter rwos. (n)

B. Mino'rs and perso~s incapacitated to contract: acceptance must be by their pa1'ents or legal.representatives (Art. 741). This reverses the doctrme of Pei'ez vs. Calingo (CA) 40 OG (No. 15) 11th Supp. p.
3, 'which formerly held that a minor may personally
accept a simple donation.

A. Persons conceived but not ']jet bm'n may alccedPt


through persons who would represent them if a rea y
born (i.e. parents, guardians.: Art. 742) (Laureta
vs. Mata, 44 Phil. 668).

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242

II. f'Donations
to disqualified pe1'sons a1'e void even I'f rna de
tT
IC I lOusly (a) under guise of another contract or (b)

a. Donations to stepchildren or persons of whom the


donor's spouse is. a presumptive heir (Art. 134).
1) These donatIons are voidable by the donor's
heir~ at the death of the donor; or by his
?1'ed~tors during the lifetime of the donor, if
III fraud of their rights (Art. 134).

C. By reason of prejudice to creditors 01' hei1's (voida.


ble) :

1) ~he p:?hibition prescribed by law against


lIberalItIes between spouses and stepchildren
are . by analogy applicable to such extramantal
relations .as "common law marna.
"
ges (Buenaventura vs. Bautista (CA) 50
a.G. No.8, 3679).
B. By reason of unwo'd hiness of the donee:
a. Incapaci~y to .succeed by wiil shall be applicable
to donatIons tnter vivos (Art. 740).
b. The disqualific~tion applies to cases under Art.
1.0~2 and Art. 1027, except 1027, par. 4 (disqualIfIcation of witnesses to the will).

c. Those made to a public officer, his 'Wife, descend~nts and/ or ascendants, by reason of his of.flce (Art. 739, p. 3).
Note - These disqualifications apply to lit . . .
ance benefits (Art. '2012).
e 'lnsurd. Those made between spouses dUring , coverture
(Art. 134).
.

d~nee an~ proved by the preponderance of


eVIdence m the same action (Art. 739, last
par.).
b. Those ~ade between persons found guilty of the
s~me. (Identical) criminal offense, if the don~
tlOn )ls made in considemtion thereof (Art. 739,
p. 2 .

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243

ART. 745. The donee must: accept the donation


personally, or thrqugh an authorized person with
a special power for the pm'pose, or with a general
and sufficient power ; otherwise, the donation shan
be void. (630 )
ART. 746. Acceptance must be made during the
]..ifetime of the donor and of the donee. (n)
ART. 747. Persons who accept donations in representation of others who may not do so by themselves, shall be obliged to make the notification and
notation of which article 749 speaks. (631)

I. Refer to Art. 1544 (preference given to first possessor).


II. Article 744 has no retroactive effect and does not cover
a case where there is a donation and a sale (Semafia
vs. Goyena Vda. de Quizon (CA) 49 a.G. No.7, 2897).

ART. 741. Minors and others who cannot enter


into a contract may become donees but acceptance
shall be done through their parents or legal representatives. (626a)
ART. 742. Donations made to conceived and unborn children may be accepted by those persons
who would legally represent them if they were already born. (627)
ART. 743. Donations mad~ to incapacitated per
sons shall be void, though simulated under the ~uise
of another contract or through a person who is interposed. (628)
ART. 744. Donations of the same thing to two
or more different donees shall be governed by the
provisions concerning the sale of the sam(' thing
to two or more different persons. (n)
.

through an intermedfary (Art. 743); except donations


under Art. 134 (q.v.) which ate voidable and not wholly
void.

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244

a. With simultaneous delivery of property donated.


-It may be oral, unless it exceeds P5,000, in
which case it is VOID if not in writing (Art.
748).

A. Of movable p?'operty (Art. 74S).

1. Form of dO'YUNtions.

ART. 748. The dona~ a movable may be


made orally or in writing.
"
An oral donation requires the shnultaneous delivery of the thing or of the document representing
th,e right donated.
If the ' va~ue of the personal propexty donated
exceeds fhie thousand pesos, ' the donatioll and the
~ceptance shall be made in writmg. Otherwise,
tne donation shall be void. (632a) .
ART. 749. In order that the donation of an im.
movable may be valid, it must be made in .a ~
dQcument, specifying therein the pl;operty donated
an~ the v~~ of the charges which the donee must
satIsfy.
..
The acceptance may be made in the same deed of
donation or in a sep~Ubli.c doeument, but it
shall not take effect nl
it is done during' the
lifetime of the donor. .
0;:;-. If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both
instruments. (633)

A. Form of authority: It must be in a public instrument in accordance with Art. 1358 (Manresa).

1. Acceptance or consent must be personal, or through a


person authorized generally or specifically. Art. 745
speaks of acceptance but the rule also applies to the
donor.
.

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OUTLINE OF PHILIPPINE CIVIL LAW

245

i) The donor may waive formal notice


(TS June 12, 1896).
ii) Execution of a public instrument of conveyance is one of the waYf;l in which
delivery of lands may be made. Hence a
donation made in this form, duly accepted by the aonee, transfers possession as well as ownership of the land
donated, unless a contrary intention is
inferable from the terms of the donation (Ortiz vs. Court of Appeals G.R.
L-7307, Dec. 14, 1955).
li~) Agreement to respect the terms of the
donation and at the same time xPFessing gratitude for the donor's benevolEmce is sufficient acceptance (Cuev~s
. vs. Cuevas, .51 O.G. No. 8, 6163) .

R. Of i'Y(/'movable (real) property.


a : The donation must be in a, 'public instrum,ent
specifying the property donated and the burderz.s
assumed by the donee', (Art. 749) regardless of
value.
b. The acceptance must be. ither~ ' ,
1) In the same instrument, or
2) : In another public instrument,. notified to the
donor in authentic form, and noted in both
deeds, otherwise the donation is VOID. The
donation of immovables is a solemn contract
(Art. 749) (Uson vs. Del. Rosario, G.R. No.
L-4963, Jim. 29, 1953).

1930), regardless of value.

simultaneous delivery.-It must be in


writing (private or public) including the acceptance (TS 6 June 1908; 27 June '1941; 22 Jan.

ib. Without

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246

752. The provisions of article 750 notwithstanding, no person may give or receive, by way of
.donation. more than he,may give or receive by will.

'~
"
ART.

ART. 750. The donation may comprehend all the


present property of the donor, or part thereof, provided he reserves, in full ownership or in usufruct,
sufficient means for the support of himself, and
of all relatives who, at, the time of the acceptance
of the donation, are by law 'entitled to be supported
by the donor. Without such reservation, the dona..
tion shall be reduced on petition of any person affected. ( 634a)
ART. 751. Donations cannot comprehend future
property.
By future property is understood anything which
the,donor cannot dispose of at the time of the dona, tioh. (635)
,' ,
'
,

EFFECT OF DONATIONS AND LIMITATIONS


THEREON

CHAPTER

C. Exceptions to the rule: Donations p1'opter nuptias


need no express acceptance (Art. 129). The form of
onerous donations is governed by the rules of contracts. (Art. 733).
D. Resume,:
a. Donations of real property: In a public instrument, regardless of ,value.
b. Donations of pers01UJ,lty:
1) Without simultaneous delivery: In writing,
public or private, regardless of value.
' 2) With simultaneous delivery:
i) Value of P5,000 or less : oral or written.
ii) Value of more than P5,OOO: In writing,
public or. private.

OUTLINE OF PHILIPPINE CIVIL LAW

co-njugal prop-

174) :"

- t?rty ,~xcepta.s authorized by law. (Arts. 162, .

) ;:~h~:h~'sban~ can i'wt do~te

247

b. If th~ donm" haS. no fm"ced h~i1"S: ,-The donatioll


may , 'inch,lde ali present property provided the
donor ,1'eSC1"lleS in full ownership or in ul'lufruct
, (Ar~ 750) ,the following:

'

1) :Future spou~es in their marriage settlements


- :~annot donate to each other mor} than 1/5
'~~f their p1"e~ent property (Art. 130).
, 2) , ';Don~tions p;roptm" n:ttpt'-ias by an ascendant
(consisting of jewelry, furniture or clothing,
J re: not re,ducible ' except insofar as they
;'~xc~d 1 / 1Q:' of the :,dlsposable portion (Art.
, ) 070).
'

B. Amount of prBsent property that can be donated.


a. If the donor has forced heirs: No person can give
o~lve b GbiiitiMP more than he can give or
' receive by will. , The excess is inofficious, subject to reduction (Art. 752).
ExceptiOns :

a. Exception: Future spOuses can ,donate to each


other future properly in the amount provided
by the rules of testamentary succession (i.e.,
not to exceed the part of free disposal at the donor's death) ; but the donation must be made in
the marriage settlements (Art. 130).

A. Future p1'operly, which the donor cannot dispose of


, at the time of the donation, can not be donated (Art.
751).

I. Subject matter (propertYdon~ted).

The donation shall be inofficious in all that it


may exceed this limitation. (636)

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.

'248

ART. 753. When a donation is made to several


persons jointly it is understood to be in equal shares
and there shall be no right of accretion among them;
uJ!,less the donor has ~therwise provided.
The preceding paragraph shall not be applicable
to donations made to the husband and wife jointly,
between whom the~e shall be a right of accretion,
if the contrary has not been provided by the donor..
(637)
ART. 754. The donee if;) subrogated to all the
r'ights and actions which in case of eviction would
pertain to the donor. The latter, on the other hand,
is not obliged to warrant the things donated, save
when the donation is onerous, in which case th8
donor shall be liable for eviction .to the concurrence
.of the burden.

It

SUPPO?' t him (the


donor) according to his position, and those
relatives entitled to support from the donor,
i) If the-donor has sufficient income from
his profession, he need not reserve p~op
erty (Manresa) . .
ii) Reservation of property for the donor's
aupport need not' OIppearih th~ deed of
donation (Res. D:G.R, 21 Aug. 1893;
17 April 1907) and 'm'a y be proved
aliunde.'
2) Property sufficient to pay the donor's debts
contra'cted before the donation. 'Otherwise,
the donation js presumed primp, facie in
fraud of creditors (Arts. 759, 1387). '
Note: i'iIt' o' to muoir
,e ' _3 the donation subject to reduction at the instance of
the party affected ' (Art. ~7fio) (Agapito
vs. De Joya(CA) 40 OG. 3'5 26r.
'

1) The amount necessary to

OUTLINE OF PHILIPPINE CIVIL LAW

249

1. Effect of donation.s.
A. In general: a. The donee may demand the actual delivery of the
thing donated.
b. The donee is sub1'ogated to the rights of'the donor
iIi the property.
,
c. The donor does not' warrant against eviction
unless the donation 'is one1'ous, when the donor
answers ' up to amount 'of the burden assumed by
the donee (Art. 754).
d. The donor is' liable' for eviction or hidden defects
if the 'donor is in bad faith (Art. 754) .
e. But in donations 'propter 'nuptias, the donor must
release the property from encumbrances, except
servitudes (unless otherwise stipulated) (Art.
131) . The reason for the rule is founded upon
tne ,purpose of 'these donations, which is to help
those newly wed.
f. The donor's warranty existsi) If expressed;
ii) If the donation is p'ropter nuptia~;
iii) If the donation is onero).ls;
iv) If the donor is in bad faith.
g. When the donation is made to several donees
jointly: They .are entitled to equal portions, '
without accretion, unless otherwise expressed.
,But1) If the donees are husband and wife, the husband's share is capital and the wife's is
paraphernal, and there will be accretion unless the contrary is stipulated (Art. 753) . .
2) In accretion the share of the donee who fails
or refuses to accept passes to the co-donees
(cf. Art. 1015).

The donor shall also be liable for eviction or hidden defects in case of bad faith on his part. (638a)

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. ~. ART. 760: Every d~nation inter vivos, made b:f .a
P rison haVIng no chIldren or descendants, legItlm~te or legitimated by subsequent marriage, or
251

25'0

E VOCATION AND REDUCTION OF DONATIONS

CHAPTER 4

same is valid, but if the donor dies without exercising the reservation, the latter accrues to the donee
(Art. 755). Reservation of the power to dispose of
all the 'donated property means the donation is mortis causa (i.e., a legacy) and must comply with the
formalities of testaments.
B. Separation of ownership and ,u sufruct is 'JJalid. If
the usufructuaries are several, all the donees must
be living at the time of the donation (Art. 756)
(whether usufructs are simultaneous or successive).
The reason is that the donor must know of the acceptance of all the donees.
e. Conventional reversion may be established in favor
of the donor or other persons living at the time of
the donation (Art. 757).
D. Payment of the donor's debts by the donee.
a. If- there is exp1'ess stipulation: The donee is to
pay only debts ~ontracted before the donation, if
not otherwise specified. However, the donee
answers only up te, the value of the property
donated, if no stipulation is made to 'the contrary (Art. 758).
b. If there is no stipulation: The donee is answerable for the debts of .the donor only in case of
fraud against creditors (Art. 759).

I. Special 1"'ltleS:
A. Reservation , by the donor of the power to dispose
of pa1t of the property donated, or to enCUl1t.fJer the

OUTLINE OF PHILIPPINE CIVIL LAW

.ART. 755. The right to dispose of ,~ome of the


thIngs donated, or of some amount which shall be
a charge thereon, may be reserved by the donor; but
if he should die without having made use of this
right, the property or amount reserved shall belongto the donee. (639 )
ART. 756. The ownership of property may also
be donated to one person and tl:1e usufruct to another or others, provided all the donees are living
at the time of the donation. (640a)
,
. ART. 757. Reversion may be validly establishen
In favor of only the donor for any case and circumstances, but not in favor of other persons unless
they are all living at the time of the donation.
Any reversion stipulated by the donor in favor
?f ~ third pe~on in violation of what is provided
m the precedIng paragraph shall be void ' but shall
not nullify the donation. (641a)
,
ART. 758. When the donation imposes upon the
~o e the obligation to pay the debts of the donor,
1
he clause does not contain any declaration to thf!
ontrary, the former is understood to be liable to
p~.y -only the debts which appear to have been preVIOusly contracted. In no case shall the donee be
responsible for debts exceeding the value of the pr0perty donated. unless a contrary intention, clearly
appears. (642a)
ART. 759. There being no stipulation regarding
the payment of debts, the donee shall be responsible therefor only when the donation has been made
in fraud of crpditGrs.
r"'"
The donation is always presumed to be in fraud.
of ,. creditors; when at the time thereof the donor
<if? not reserve su~ficient property to pay his debts
vprior to the donatIOn. (643)

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252

ART. 762. Upon the revoc'a tion 01' reductiop of the


donation by the birth, appearance or adoptIOn o~ a
child, the property affected ,shall be returned, or Its
value if the donee has sold the same.
If the property is mortgaged, the donor may redeem the mortgage, by paying the amount guaranteed , with a right to recover the same from the
donee.
When the property cannot be returne<;l, it shall
be estimated at what it,was worth at the tIme of the
.donation. (~45a)
ART. 763. The action for revocation or reduction
on the grounds set forth in artic1~ 760 shall I?rescribe after four years from the bIrth of the fIrst
child, or from his legitimation, recognition or adol>'

illegitimate, may be revoked or reduced as pi'ovitied


in the next article, by the happening of any of these
events:
(1) If the donor, after the dona~i?n, sh(lu]~ have
legitimate or legitimated or illegItlmate chIldren
even though they be p03thumo1J!:1;
(2) If the child of the donor, whom the latter
believed to be dead when he made the donatio!!,
should turn out to be Ii ving ;
(3) If t.he donol' should subs~uently adopt a
miner child. (644a)
ART. 76l. In the cases referred to in the preceding article, the donation shall. be revoked or reduced
insofar as it exceeds the portIOn that may be freely
disposed of by will, taking into accou~t the whole
estate of the donor at the time of the bIrth, arwea!~ance or, ado tion of a ehB
n)
-- - ,-,

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253

(2) If the donee.imputes to the donor any cri-_ ,


minal offense, or anyact involving moral turPitude,
even though he should prove it, unless the crime

(1 'If the donee should commit some offense '


against the person, the honor or the property 0
donor, or of his wife or children under his parental
authority;

ART. 765. The donation may also be revoked at


the instance of the dQ!!or, by reason of mgrabtude
in the following cases:
'
- '-

. . .f

This action shall prescribe after four years from


the noncompliance with the condition, may be trans~itte~ to. the heirs of the donor, and may be exerci~" agamst the donee's heirs. (647a)

In this case, the property donated shall be returned to the donor, the alienations made by the
do?ee an~ the. mortgages imposed thereon by him
bemg VOId, WIth the limitations established with
regard to third persons, by the Mortgage La~v and
the Land Registration laws.

ART.

764. The donation shall be revoked at the


instance of the donor, when the donee fails to comply with any of the conditions which the former
imposed upon the latter.

tion, 01' from the judicial declaration of filiation ,


or from the time information was received regardin~/the existence of the child believed dead.
V This action cannot be renounced, and is trans. mitted, upon the death of the donor, to his legitimate and illegitimate children and descendants.
(646a)

OUTLINE OF PHILIPPINE CIVIL LAW

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254

Later ones shall be void. (649)


ART. 767. In the case referred to in the first
paragraph of the preceding article, the' dorior shall
have a right to demand from the donee the valueof the property alienated which he cannot recover
from third persons, or the sum for which the same
has been mortgaged.
The value of said property shall be fixed as of
the time of the donation. (650.)
ART. 768. When the donation ts revoked for any
of the causes stated. in artiCle 760, or by reason
of ingratitude, or when it is reduced because it. is
inofficious, the donee shall not return the fruIts
except from the filing of the complaint.
If the revocation is based upon noncompliance
with any of the conditions imposed in the donation,
the donee shall return not oniy the property but also
the fruits thereof which he may have received after
having failed to fulfill the condition. (651)
ART. 769. The action granted to the donor by
.. l~eason of ingratitude cannot be renounced in ad",

ART. 766. Although the donation is revoked on


account of ingratitude, nevertheless, the alienations and mortgages effected before the notation .
of the complaint for, revocation in the Registry
of Property shall subsist.

vance. This action prescribes within one year, to


be counted from the time the donor had knowledge
of the fact and it W..SlS possible for him to bring the.
action. (652)
,

or the act. has been committed against the donee


himself, his wife or children under his authority;
(3) ' If he unduly refuses hi~ort~en the
donee is legally or morally bound to gIve support
to the donor. (648a)

255

ART. 771. Donations which in accordance with


the provisions of article '; 52, are inofficious, bearing in mind the estimated net value of the donor's
property at the time of his death, shall be reduced
with reg~rd to the excc's s; but this reduction shall
not prevent the donations from taking effect during the life 9f the donor, nor shall it bar the donee
from appropriating the fruits.
For-the reduction of donations the provisions of
this Chapter and of articles 911 and 912 of thia
Code shall govern. (654)
ART. 772. Only those who at the time of the
donor's death have a right to the legitime and their
heirs and successors in interest may ask for th~
reduction of inofficious donations.
Those referred to in the preceding nara,graph
cannot renounce their right during the lifetime of
the donor, either by express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not
entitled to the legitime and the creditoi'8 of. the de-

Neither can this action be brought against the


heir of the donee, unless upon the latter's death the
complaint has been filed. (653)

ART. 770. This action shall not be transmitted


to the heirs of the donor, if the latter did not institute the same, although he could have done so,
and even if he should die before the expiration of
one year.

OUTLINE OF PHILIPPINE CIVIL LAW

OUTLINE OF PHILIPPINE CIVIL LAW

1:. """:'""""'~="""""-------~-

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256 '

2) But not c1'cdito?'s or volunta?'y heirs or


legatees.

C. InofficiouBness.
a. When reduction may be had: No reduction on
this ground 'may be asked until the donor dies,
when his net estate can be determined (Art. 771).
b. Basis: The law intends to protect the actual
legitime of the forced heirs.
e. Who may ask for reduction? (Art. 655) :
1) Only the fm'ced hei?s. of the donor (whether
children, descendants or ascendants) .

B. Causes of 1'eduction:
a. Inofficiousness.
b. Appearance of children.
.
1) These causes are not self-operating;
2) They require an action ;
3) They do not apply to donations mm"ti-s ca.-usa
(that are governed by the rules of testamentary dispos!tions).-

A. Reduction disting~tished from revocation: Revocation


is total, whether the legitime is impaired or not; re- .
duction is made orily insofa.r as the legitime is prejudiced.
Revocation benefits the dono?'; reduction benefits
the heirs of the donor (except when made on the
ground of the appearance of a child).

I. Reduction of donations.

ceased can neither ask for the reduction nor aval


themselves thereof. (655a)
ART. 773. If, there being two or more donations,
the disposable portion is not sufficient to cover all
of tliem, those of the more recent date shall be suppressed or re~uced with regard to the excess. (656)

OUTLINE OF PHILIPPINE CIVIL LAW

257

D. Subsequent appeamnce of childr en.


a. When this 'ground applies1) If the donor subsequently (to the donation)
has legitimate, legitimated, adopted or acknowledged natural children, when he had none
at the time of the donation.
i) If the child is adopted, he must be a
mino?" in order to claim the benefit of
this article. Adoption of a person ct'
adult age does. not give right to a rednction under Art. 760, but only under '
Art. 771 (inofficiousness).
.

g.

f.

e.

d.

3) 'The Register of Deeds can not raise the


question (TS. 17 Apr. 1907) .
Waiver: The action for reduction may not be
waived during the lifetime uf the donor; not
even if the heir agreed to the donation (Art.
772).
.
Limitation of action : It must be brought within 5 yea,rs from the donor's death (Art. 1149).
Effect: The reduction takes effect as of the death
of the donor; it is not retroactive. But if the
donee is a forced heir, he must collate and deduct
the donation from his share of the legitime, the
reduction affecting only the excess (Art. 909) .
Rules:
1) In case of two or more donations, those of
mo?'e rec ent date shall be suppressed or
reduced with r egard to the excess (Art. 773).
i) Except wedding presents of jewelry,
clothing and outfit, not exceeding 1/10
of the free part, made by ascendants
{donors) . These must be respected
even if they be more recent (Art. 1070) . .
2) Arts. 908 and 912 apply in determining the
prejudice to the legitime. (Outline, Vol. 3).

OUTLINE OF P l-IIL[ J> j l l ~ E C IVIL LAW

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258

b. Basis: There is need of protecting the presumptive legitime of a child (cf. inofficiou~ness).
c. Linvitation of action: The action must be brought
within 4 years from the birth of the first child
or his adoption, acknowledgment or legitimation '
(Art. 763) or from receipt of infOt'mation that
the child is alive.
1) The action is transmissible to the donor's
heirs if the donor dies within those foul'
years.
d. Waiver: The action cannot be waived and it descends to the children and descendants (not to
other heirs of the donor) whether legitimate 01'
illegitimate (Art. 763).
.
e. Ef,fects: The effects are not retroactive (Art.
762).
Hence-1) The donation is valid if not exceeding the
free part, computed as of the bit'th, adoption or app-earance of the child (Art. 761).
2) The donee must Teturn the property or its
value at the time of the donation.
3) The f1"Uits are to be returned only f1'om the
filing of the action' (Art. 768).
4) Alienations arid encumb.rances by the donee
befoTe the filing of the donor's action, are
valid.
5) Mortgages by the donee are valid, but may
be discharged, subject to reimbU'r sement
from the donee (Art. 762).

2) When a child, believed dead by the donor,


reappears (Art. 760).
NOTE: Although the Code calls it revocation, it is' only a case of reduction, though
it may absorb the whole iIi ' certain cases.

6UTLINE OF ,PHILIPPINE CIVIL LAW

II.

B. Ing'i"atitude (not retroactive III effect) (Art. 765).


a. What constitutes ingmtUude?
1) When any offense is committed by the donee
against the person (not only the life), honot'
or p1'ope1'ty of the donor, his wife or children under parental authority;
2) When the donee imputes '~~o the donor a
crime, or act involving momi turpitude, even
if true; unless committed against the donee,
his spouse or children under his authority.
3) When the donee unduly refuses to support
the donor.
259

of donations.
A. Causes in gene1"al:
a. Appearance of children (Art. 760).
(See above discussions, pp. 257-258; this is
really a case of reduction only, but may absorb
the entire donation).
b. Ingratitude (not retroactive in effect) (Art.
765). (See post, par. B).
c. Breach of stipulations by the donee (Art. 764)
(retroactive in effect).
Notes:
1) Par. c is really a case of resolution. Noncompliance is a resolutory condition under
Art. 1191; hence, the difference in effects
as compared with ingratitude.
2) These causes are not self-operating; the
party affected must bring an action' (Oracion vs. Juanillo and Principe, 46 O.G. 5421;
Ongsiaco vs. Ongsiaco, L-7510, 30 Mar. 1957.
3) These causes do not apply to donations prop-te1' nuptiU$ (See Art. 132 for special grounds
of revocation).
,
4) These causes do not apply to 'I1w1tis causa
. donations.

~evocation

OUTLINE OF PHILIPPINE CIVIL LAW

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of I'HILIi'i 'I N E CIVIL LAW

260

C. Breach of conditions (Art. 764).


a. The article refers to "condittons" in the sense
of stipulations (or burdens).

i) "Unduly" means that the donor is legally or morally entitled to demand support.
4) When ,t he donee-spouse gives cause for legal
, sepamtion (Art. 107).
i) The enumeration in Art. 765 should be
strictly construed. The mere fact that
the donee's husband spoke ill of the
donor is not the "ingratitude" consti.:
tuting a ground far revocation (Guzman vs. Ibea, 67 Phil. 633).
b. Limitation of action---:The action must be brought
within 1 year from the knowledge of the offense
(Art. 769).
c. Waiver-The action can not be waived in
advance; and it is not transmissil?le to the heirs
of the donor nor against the heirs of the donee
if the donor could have brought the action himself but did not do so (Art. 770) even if the donor
dies within the year (pardon presumed).
d. jj}jje~ts~The donee shall return the fruits from
the filing of the action (Art. 768).
1) Alienations before annotation of the complaint (lis pendens) in the registry of property are valid (Art. 766) but the donee is
liable for the value of the property (Art.
767).
2) Mortgages made before the annotation of the
complaint are also valid, but the donee is
liable for whatever sum has been paid to discharge the mortgage (Arts. 766, 767) .
3) Amounts paid 'are reimbursable by the donee (Art. 768).

OLJTLI:-iE

OF PHILIPPINE CIViL LAW

261

within 4 years (Art. 764) from the breach.


c. Waiver: The action may be waived by the donor
or his successors.
d. Effect: The effect is ' 1'et'roactive. Therefore1) Alienations and encumbrances by the donee
become void, subject to recorded rights of
strangers who had no knowledge of the conditions, in accordance with tbe Spanish Mortgage Law, Art. 38 (Art. 764) and Land Registration Act (Act 496) .
2) Fruits from the time of breach are to be
returned (Art. 764).
, 3) The action is transmissible to the heirs of
the donor and donee (Art. 764) (Acunin vs.
Asis, 46 OG 4980).

b. Limitation of action: The action may be brought

OUTLINJ<~

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~

B.

A.

tv
~
tv

of Sp. Mort. Law and


Act 496.

deem and collect from


the donee.

MOTIVATION

CHARACTER

time

of

Futnre services

R ecoverable debts
Nc,tural obligation

b)

, a)

"
'

.. .

SIMPLE DONATION
ONEROUS DONATION
(Contract)

, . ONEROUS DONATION
(Contract)

. REMUNERATORY
DONATION
. PAYMENT (Contract)
. PAYMENT' (Contract)
. ONEROUS DONATION
(Contract)

. , ... , . . ' . TESTAMENTARY


DISPOSITION

Comparative values determinable '


ba) Portion exceeding the value of the burden
bb) Portion not exceeding value of the burden

Comparative values not determinable

With a Burden on Donee

b)

ab)
ac)

S ervices Rendered to Donor


a) Past services
aa) Not r ecoverable debts

MORTIS CAUSA . ..

5.

4:

1.

Pure LiberaHty (desire to benefit donee)


' SIMPLE DONATION
2. Merits of Donee
.. SIMPLE DONATION
3. Marriage of Donee . ,
DONATION PROPTER
NUPTIAS

INTER VIVOS

CLASSIFICATION OF DONATIONS

6. From the filing of the


complaint.

the

5. Renunciation of the I 5. Cannot be


in advance.
action in advance.

6. As of
breach.

5. Can be renounced.

4. Transmission of liabi-I 4. Transmissible against


lity.
the heirs of the donee.

6. Return of fruits.

4. Transmissible against
the heirs of the donee.

3. 'T ransmissible to the


descendants of the do
nor.

3. Transmissibility of action to revoke.

renounced

8. Transmissible to the
heirs of the donor.

2. 4 years from birth, in.


formation,
adoption,
etc.

2. Prescription.

2. 4 years from breach'.

1. Void, subjeoo to Art. 38

1. Valid-Donor may reo

and alienations.

1. As regards mortgages

Revocation for breach


of conditions
(Art . 764)

Revocation for
.appearance of child1'en
(A1t. 164)

Basis for Distinction

e. Comparative table:

Gener~lly, not trans


missible to the heirs of
the donor.

74~1

Testament

No special form

As per Arts. 748, 749

No special form

No special form

As pel' Arts. 748,


No special form
No special form

Statute of Frauds

As per Arts. 748, 749


- do -

FORM

6. From the filing of the


complaint and its reo
cord in the registry.

5, Cannot be renou.n ced in


advance.

4. Not
transmissible
against the heirs of
the donee, unless upon
the donee's death, the
action has been filed.

3.

2. 1 year from knowledge:

1. Before notation of the


complaint-valid.
After notation-void.

Revocation on the
ground of ingratitude
(Art. 765)