1.
AMPASO, MOHAMMAD NASIF
MOHAMMAD NASIF AMPASO
Question no. 1
Accomplice (2009) No. V a. Ponciano borrowed Ruben’s gun,
saying that he would use it to kill Freddie. Because Ruben also
resented Freddie, hereadily lent his gun, but told Ponciano: "O,
pagkabaril mo kay Freddie, isauli mokaagad, ha." Later,
Ponciano killed Freddie,but used a knife because he did not
want Freddie’s neighbors to hear the gunshot.
What, if any, is the liability of Ruben? Explain. (3%)
SUGGESTED ANSWER:
Ruben‟s liability is that of an accomplice only because he
merely cooperated in Ponciano‟s determination to kill Freddie.
Such cooperation is not indispensable to the killing, as in fact
the killing was carried out without the use of Ruben’s gun.
Neither way Ruben may be regarded as a co-conspirator since
he was not a participant in the decision-making of Ponciono to
kill Freddie; he merely cooperated in carrying out the plan
which was already in place (Art. 18,RPC).
Question no. 2
Acquisition of Lands; Sale of Real Property to an Alien (2009)
No.XIX. In 1972, Luciano de la Cruz sold to Chua Chung Chun,
a Chinese citizen, a parcel of land in Binondo. Chua died in
1990, leaving behind his wife and three children, one of whom,
Julian, is a naturalized Filipino citizen. Six years after Chua’s
death, the heirs executed an extrajudicial settlement of estate,
and the parcel of land was allocated to Julian. In 2007, Luciano
filed suit to recover the land he sold to Chua, alleging that the
sale was void because it contravened the Constitution which
prohibits the sale of private lands to aliens. Julian moved to
dismiss the suit on grounds of pari delicto, laches and
acquisitive prescription.
Decide the case with reasons. (4%)
SUGGESTED ANSWER: The case must be dismissed. Julian,
who is a naturialized Filipino citizen and to whom the property
was allocated in a n extra-judicial partition of the estate, is now
the owner of the property. The defect in ownership of the
property of Julian’s alien father has already beencured by its
transfer to Julian. It has been validated by the transfer of the
property to a Filipino citizen. Hence, there is no more violation
of the Constitution because the subject real property is now
owned by a Filipino citizen (Halili v. CA, 287 SCRA 465, [1998]).
Further, after the lapse of 35 year, laches has set in and the
motion to dismiss may be granted, for the failure of Luciano to
question the ownership of Chua before its transfer of ownership
to Julian.
Question No. 3
Registration; Party Who First took Possession (2013)
No.IX.Rica petitioned for the annulment of her ten-year old
marriage to Richard. Richard hired Atty. Cruz to represent him
in the proceedings. In payment for Atty. Cruz's acceptance and
legal fees, Richard conveyed to Atty. Cruz a parcel of land in
Taguig that he recently purchased with his lotto winnings. The
transfer documents were duly signed and Atty. Cruz
immediately took possession by fencing off the property's entire
perimeter. Desperately needing money to pay for his mounting
legal fees and his other needs and despite the transfer to Atty.
Cruz, Richard offered the same parcel of land for sale to the
spouses Garcia. After inspection of the land, the spouses
considered it a good investment and purchased it from Richard.
Immediately after the sale, the spouses Garcia commenced the
construction of a three-story building over the land, but they
were prevented from doing this by Atty. Cruz who claimed he
has a better right in light of the prior conveyance in his favor.
Is Atty. Cruz's claim correct? (8%)
SUGGESTED ANSWER: No. Atty. Cruz is not correct. At first
glance, it may appear that Atty. Cruz is the one who has the
better right because he first took possession of the property.
However, a lawyer is prohibited under Art 1491 of the Civil Code
from acquiring the property and rights which may be the object
of any litigation in which they may take part by virtue of their
profession. While the suit is for annulment of marriage and it
may be urged that the land itself is not the object of the
litigation, the annulment of marriage, if granted, will carry with
it the liquidation of the absolute community or conjugal
partnership of the spouses as the case may be (Art. 50 in
relation to Art 43 of the Family Code). Richard purchased the
land with his lotto winnings during the pendency of the suit for
annulment and on the assumption that the parties are governed
by the regime of absolute community or conjugal partnership,
winnings from gambling or betting will form part thereof. Also,
since the land is part of the absolute community or conjugal
partnership of Richard and Rica, it may not be sold or alienated
without the consent of the latter and any disposition or
encumbrance of the property of the community or the conjugal
property without the consent of the other spouse is void (Art 96
and Art 124, Family Code)
2. ANIEGO, ASNAR
ASNAR A. ANIEGO
1. (PERSONS & PERSONALITY)
Q: Ricky donated P 1 Million to the unborn child of his
pregnant girlfriend, which she accepted. After six (6)
months of pregnancy, the fetus was born and baptized as
Angela. However, Angela died 20 hours after birth. Ricky
sought to recover the P 1 Million. Is Ricky entitled to
recover? Explain. (2012)
A: YES, Ricky is entitled to recover the P1,000,000.00. The NCC
considers a fetus is considered a person for purposes favorable
to it provided it is born later in accordance with the provision of
the NCC. While the donation is favorable to the fetus, the
donation did not take effect because the fetus was not born in
accordance with the NCC.
To be considered born, the fetus that had an intrauterine life of
less than seven (7) months should live for 24 hours from its
complete delivery from the mother’s womb. Since Angela had an
intrauterine life of less than seven (7) months but did not live
for 24 hours, she was not considered born and, therefore, did
not become a person (Art. 41). Not being a person, she has no
juridical capacity to be a donee, hence, the donation to her did
not take effect. The donation not being effective, the amount
donated may be recovered. To retain it will be unjust
enrichment.
2. (MARRIAGE)
Q: On Valentine's Day 1996, Ellas and Fely, both single and
25 years of age, went to the city hall where they sought out
a fixer to help them obtain a quickie marriage. For a fee,
the fixer produced an antedated marriage license for them,
Issued by the Civil Registrar of a small remote
municipality. He then brought them to a licensed minister
in a restaurant behind the city hall, and the latter
solemnized their marriage right there and then. (1996,
2008).
a. Is their marriage valid, void or voidable? Explain.
A: The marriage is valid. The irregularity in the issuance of a
valid license does not adversely affect the validity of the
marriage. The marriage license is valid because it was in fact
issued by a Civil Registrar (Arts. 3 and 4, FC).
3. (MARRIAGE)
Q: Cipriano and Lady Miros married each other. Lady Miros
then left for the US and there, she obtained American
citizenship. Cipriano later learned all about this including
the fact that Lady Miros has divorced him in America and
that she had remarried there. He then filed a petition for
authority to remarry, invoking Par. 2, Art. 26 of the Family
Code. Is Cipriano capacitated to re-marry by virtue of the
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divorce decree obtained by his Filipino spouse who was
later naturalized as an American citizen?
Explain. (2012)
A: YES, he is capacitated to re-marry. While the second
paragraph of Article 26 of the Family Code is applicable only to
a Filipino who married a foreigner at the time of the marriage,
the Supreme Court ruled in the case of Republic v. Orbecido,
GR. No. 154380, October 5, 2005, that the said provision equally
applies to a Filipino who married another Filipino, at the time of
the marriage, but who was already a foreigner when the divorce
was obtained.
3. ARUMPAC, RIZMIN-AINE
Liability; Owner of a Pet; Fortuitous Event (2010)
1. Primo owns a pet iguana which he keeps in a man-made
pond enclosed by a fence situated in his residential lot. A
typhoon knocked down the fence of the pond and the iguana
crawled out of the gate of Primo’s residence. N, a neighbor who
was passing by, started throwing stones at the iguana, drawing
the iguana to move toward him. N panicked and ran but tripped
on something and suffered a broken leg. Is anyone liable for N’s
injuries?
SUGGESTED ANSWER: No one is liable. The possessor of an
animal or whoever may make use of the same is responsible for
the damage it may cause, although it may escape or be lost.
This responsibility shall cease only in case the damage should
come from force majeure or from the fault of the person who
has suffered damage (Art 2183, NCC)
Marriage; Divorce Decrees; Filipino Spouse Becoming Alien
(2009)
2. Harry married Wilma, a very wealthy woman. Barely five (5)
years into the marriage, Wilma fell in love with Joseph. Thus,
Wilma went to a small country in Europe, became a naturalized
citizen of that country, divorced Harry, and married Joseph. A
year thereafter, Wilma and Joseph returned and established
permanent residence in the Philippines. (A). Is the divorce
obtained by Wilma from Harry recognized in the Philippines?
Explain your answer. (3%)
SUGGESTED ANSRWER : having As to Wilma, the divorced
obtained by her is recognized as valid in the Philippines
because she is now a foreigner. Philippine personal laws do not
apply to a foreigner. However, recognition of the divorce as
regards Harry will depend on the applicability to his case of the
second paragraph of Article 26 of the Family Code. If it is
applicable, divorce is recognized as to him and, therefore, he
can remarry. However, if it is not applicable, divorce is not
recognized as to him and, consequently, he cannot remarry.
B). If Harry hires you as his lawyer, what legal recourse would
you advise him to take? Why? (2%)
SUGGESTED ANSWER: I will advice Harry to: (1) Dissolve and
liquidate his property relations with Wilma ; and (2) If he will
remarry, file a petition for the recognition and enforcement of
the foreign judgment of divorced (Rule 39,Rules of Court).
Adoption; Illegitimate Child; Use of Mother’s Surname as Middle
Name
3. Honorato filed a petition to adopt his minor illegitimate child
Stephanie, alleging that Stephanie’s mother is Gemma Astorga
Garcia; that Stephanie has been using her mother’s middle
name and surname; and that he is now a widower and qualified
to be her adopting parent. He prayed that Stephanie’s middle
name be changed from "Astorga" to "Garcia," which is her
mother’s surname and that her surname "Garcia" be changed to
"Catindig," which is his surname. This the trial court denied.
Was the trial court correct in denying Hororato’s request for
Stephanie’s use of her mother’s surname as her middle name?
Explain. (5%)
SUGGESTED ANSWER: No, the trial court was not correct.
There is no law prohibiting an illegitimate child adopted by his
natural father to use as middle name his mother’s surname.
The law is silent as to what middle name an adoptee may use.
In case of In re: Adoption of Stephanie Nathy Astorga Garcia,
G.R. No. 148311, March 31, 2005, the Supreme Court ruled
that the adopted child may use the surname of the natural
mother as his middle name because there is no prohibition in
the law against it. Moreover, it will also be for the benefit of the
adopted child who shall preserve his lineage on his mother’s
side and reinforce his right to inherit from his mother and her
family. Lastly, it will make the adopted child conform with the
time-honored Filipino tradition of carrying the mother’s
surname as the person’s middle name
4. BANDING, SADAT
SADAT BANDING
1. Collapse of Structures; Last Clear Chance (1990) Mr and Mrs
R own a burned-out building, the firewall of which collapsed
and destroyed the shop occupied by the family of Mr and Mrs S,
which resulted in injuries to said couple and the death of their
daughter. Mr and Mrs S had been warned by Mr & Mrs R to
vacate the shop in view of its proximity to the weakened wall
but the former failed to do so. Mr & Mrs S filed against Mr and
Mrs R an action for recovery of damages the former suffered as
a result of the collapse of the firewall. In defense, Mr and Mrs R
rely on the doctrine of last clear chance alleging that Mr and
Mrs S had the last clear chance to avoid the accident if only
they heeded the former’s warning to vacate the shop, and
therefore Mr and Mrs R’s prior negligence should be
disregarded. If you were the judge, how would you decide the
case? State your reasons. SUGGESTED ANSWER: I would
decide in favor of Mr & Mrs S. The proprietor of a building or
structure is responsible for the damages resulting from its total
or partial collapse, if it should be due to the lack of necessary
repairs (Art 2190 Civil Code) As regards the defense of “last
clear chance,” the same is not tenable because according to the
SC in one case (De Roy v. CA L-80718, Jan. 29, 1988, 157 S
757) the doctrine of last clear chance is not applicable to
instances covered by Art 2190 of the Civil Code. Further, in
Phoenix Construction, Inc. v.s IAC (G.R. No. L-65295, March
10, 1987, 148 SCRA 353), the Supreme Court held that the role
of the common law “last clear chance” doctrine in relation to
Article 2179 of the Civil Code is merely to mitigate damages
within the context of contributory negligence.
2. Damages arising from Death of Unborn Child (2003) If a
pregnant woman passenger of a bus were to suffer an abortion
following a vehicular accident due to the gross negligence of the
bus driver, may she and her husband claim damages from the
bus company for the death of their unborn child? Explain.
SUGGESTED ANSWER: No, the spouses cannot recover actual
damages in the form of indemnity for the loss of life of the
unborn child. This is because the unborn child is not yet
considered a person and the law allows indemnity only for loss
of life of person. The mother, however may recover damages for
the bodily injury she suffered from the loss of the fetus which is
considered part of her internal organ. The parents may also
recover damages for injuries that are inflicted directly upon
them, e.g., moral damages for mental anguish that attended the
loss of the unborn child. Since there is gross negligence,
exemplary damages can also be recovered. (Gelus v.CA, 2 SCRA
801 [1961])
3.Liability; owner who was in the vehicle (1996) Marcial, who
does not know how to drive, has always been driven by Ben, his
driver of ten years whom he had chosen carefully and has never
figured in a vehicular mishap. One day, Marcial was riding at
the back seat of his Mercedes Benz being driven along EDSA by
Ben. Absorbed in reading a book, Marcial did not notice that
they were approaching the corner of Quezon Avenue, when the
traffic light had just turned yellow. Ben suddenly stepped on
the gas to cross the intersection before the traffic light could
turn red. But, too late. Midway in the intersection, the traffic
light changed, and a Jeepney full of passengers suddenly
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crossed the car’s path. A collision between the two vehicles was
inevitable. As a result, several jeepney passengers were
seriously injured. A suit for damages based on culpa aquiliana
was filed against Marcial and Ben, seeking to hold them jointly
and severally liable for such injuries. May Marcial be held
liable? Explain. SUGGESTED ANSWER: Marcial may not be
liable because under Art. 2184, NCC, the owner who is in the
vehicle is not liable with the driver if by the exercise of due
diligence he could have prevented the injury. The law does not
require the owner to supervise the driver every minute that he
was driving. Only when through his negligence, the owner has
lost an opportunity to prevent the accident would he be liable
(Caedo v. Yu Khe Thai, 26 SCRA 410 citing Chapman v.
Underwood ang Manlangit v. Mauler, 250 SCRA 560). In this
case, the fact that the owner was absorbed in reading a book
does not conclusively show that he lost the opportunity to
prevent the accident through his negligence.
5. BANTUAS, SITTIE NAYDAH
BANTUAS , SITTIE NAYDAH B.
Question #1. Correction of Entries; Clerical Error Act(2008)
No. IV. Gianna was born to Andy and Aimee, who at the time
Gianna's birth were not married to each other. While Andy was
single at the time, Aimee was still in the process of securing a
judicial declaration of nullity on her marriage to her ex-
husband. Gianna's birth certificate, which was signed by both
Andy and Aimee, registered the status of Gianna as "legitimate",
her surname carrying that of Andy's and that her parents were
married to each other.(A). Can a judicial action for correction of
entries in Gianna's birth certificate be successfully maintained
to:a). Change her status from "legitimate" to"illegitimate"
(1%);and b). Change her surname from that of Andy's to Aimee's
maiden surname? (1%)
SUGGESTED ANSWER:Yes, a judicial action for correction
of entries in Gianna's birth certificate can be successfully
maintained to change (a)her status from "legitimate"
to"illegitimate," and (b) her surname from that of Andy's to
Aimee's maiden surname in accordance with Rule 108 of
the Rules of Court because said changes are substantive
corrections.
(B). Instead of a judicial action, can administrative proceedings
be brought for the purpose of making the above corrections?
(2%)
SUGGESTED ANSWER:No. An administrative proceeding
cannot be brought for the purpose of making the above
corrections. R.A. 9048, otherwise known as the Clerical
Error Act, which authorizes the city or municipal civil
registrar or the consul general to correct a clerical or
typographical error in an entry and/or change the first
name or nickname in the civil register without need of a
judicial order. Errors that involve the change of
nationality, age,status, surname or sex of petitioner are
not included from the coverage of the said Act (Silverio v.
Republic, G.R. No.174689, 22 Oct., 2007).
Question #2. Ownership; Co-Ownership (2008)
No. VI. Alex died without a will, leaving only an undeveloped
and untitled lot in Tagiug City. He is survived by his wife and 4
children. His wife told the children that she is waiving her share
in the property, and allowed Bobby, the eldest son who was
about to get married, to construct his house on ¼ of the lot,
without however obtaining the consent of his siblings. After
settlement of Alex's estate and partition among the heirs, it was
discovered that Bobby's house was constructed on the portion
allocated to his sister, Cathy asked Bobby to demolish his
house and vacate the portion alloted to her. In leiu of
demolition, Bobby offered to purchase from Cathy the lot
portion on which his house was constructed. At that time, the
house constructed was valued at P350.000.(A). Can Cathy
lawfully ask for demolition of Bobby's house? (3%)
SUGGESTED ANSWER:Yes, Cathy can lawfully ask for the
demolition of Bobby's house. Where there are two or more
heirs, the whole estate of the decedent, is, before partition,
owned in common by such heirs, subject to the payment of
debts of the deceased (Art. 1078, Civil Code),Under the
rules on co-ownership, "none of the co-owners shall,
without the consent of the others make alterations in the
thing owned in common, even though benefits for all would
results therefrom." In Cruz v. Catapang, G.R. No.164110,
12 Feb., 2008, the Court held that "alterations include any
act of strict dominion or ownership such as construction
of a house." In the present case, of Alex is the real owner
of the undeveloped and untitled lot in Taguig,co-ownership
is created among his wife and four children over said
property upon his death. Since the construction of the
house by Bobby was done without obtaining the consent of
his siblings, the alteration effected is illegal. Bobby is
considered to be in bad faith and as a sanction for his
conduct, he can be compelled by Cathy to demolish or
remove the structure at his own expense.
Questuion #3. Lease; Caveat Emptor (2009)
No.VIII. Jude owned a building which he had leased to several
tenants. Without informing his tenants, Jude sold the building
to Ildefonso. Thereafter, the latter notified all the tenants that
he is the new owner of the building. Ildefonso ordered the
tenants to vacate the premises within thirty(30) days from
notice because he had other plans for the building. The tenants
refused to vacate, insisting that they will only do so when the
term of their lease shall have expired. Is Ildefonso bound to
respect the lease contracts between Jude and his tenants?
Explain your answer. (3%)
SUGGESTED ANSWER:Yes, Ildefonso must respect the lease
contracts between Jude and his tenants.While it is true
that the said lease contracts were not registered and
annotated on the title to the property,Ildefonso is still not
an innocent purchaser for value. He ought to know the
existence of the lease because the building was already
occupied by the tenants at the time he bought it.Applying
the principle of caveat emptor,he should have checked and
known the status of the occupants of their right to occupy
the building before buying it.
-end-
6. BOCO, RAIMA
BOCO, RAIMA S.
1. Child Abuse (Presidential Decree No. 603 “The Child and
Youth Welfare Code”)
FACTS:
On or about the 2nd day of September, 2000 in the
municipality of Clarin, province of Bohol, Philippines, and
within the jurisdiction of this Honorable Court, acting as a
Family Court, the above-named accused, with intent to abuse,
exploit and/or to inflict other conditions prejudicial to the
child's development, did then and there willfully, unlawfully and
feloniously abuse physically one [VVV],[7] a sixteen (16) year old
minor, by hitting her thrice in the upper part of her legs, and
which acts are prejudicial to the child-victim's development
which acts are not covered by the Revised Penal Code, as
amended, but the same are covered by Art. 59, par. 8 of P.D.
No. 603 as amended; to the damage and prejudice of the
offended party in the amount to be proved during the trial. The
appellant argues that the injuries inflicted by him were minor in
nature that it is not prejudicial to the child-victim’s
development and therefore P.D. No. 603 is not applicable and
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he should be charged under the Revised Penal Code for slight
physical injuries.
ISSUE:
Whether or not P.D. 603 as amended is applicable to the case at
hand.
HELD:
In this case, the applicable laws are Article 59 of P.D. No. 603
and Section 10(a) of R.A. No. 7610. Section 10(a) of R.A. No.
7610 provides:
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or
Exploitation and Other Conditions Prejudicial to the Child's
Development. —
(a) Any person who shall commit any other acts of child abuse,
cruelty or exploitation or be responsible for other conditions
prejudicial to the child's development including those covered
by Article 59 of Presidential Decree No. 603, as amended, but
not covered by the Revised Penal Code, as amended, shall suffer
the penalty of prision mayor in its minimum period.
As gleaned from the foregoing, the provision punishes not only
those enumerated under Article 59 of Presidential Decree No.
603, but also four distinct acts, i.e., (a) child abuse, (b) child
cruelty, (c) child exploitation and (d) being responsible for
conditions prejudicial to the child’s development. The Rules and
Regulations of the questioned statute distinctly and separately
defined child abuse, cruelty and exploitation just to show that
these three acts are different from one another and from the act
prejudicial to the child’s development. Contrary to petitioner’s
assertion, an accused can be prosecuted and be convicted
under Section 10(a), Article VI of Republic Act No. 7610 if he
commits any of the four acts therein. The prosecution need not
prove that the acts of child abuse, child cruelty and child
exploitation have resulted in the prejudice of the child because
an act prejudicial to the development of the child is different
from the former acts.
Moreover, it is a rule in statutory construction that the word
“or” is a disjunctive term signifying dissociation and
independence of one thing from other things enumerated. It
should, as a rule, be construed in the sense which it ordinarily
implies. Hence, the use of “or” in Section 10(a) of Republic Act
No. 7610 before the phrase “be responsible for other conditions
prejudicial to the child’s development” supposes that there are
four punishable acts therein. First, the act of child abuse;
second, child cruelty; third, child exploitation; and fourth, being
responsible for conditions prejudicial to the child’s
development. The fourth penalized act cannot be interpreted, as
petitioner suggests, as a qualifying condition for the three other
acts, because an analysis of the entire context of the questioned
provision does not warrant such construal.
Appellant contends that, after proof, the act should not be
considered as child abuse but merely as slight physical injuries
defined and punishable under Article 266 of the Revised Penal
Code. Appellant conveniently forgets that when the incident
happened, VVV was a child entitled to the protection extended
by R.A. No. 7610, as mandated by the Constitution. As defined
in the law, child abuse includes physical abuse of the child,
whether the same is habitual or not. The act of appellant falls
squarely within this definition. We, therefore, cannot accept
appellant's contention.
Acts committed contrary to the provisions of Section 10(a) in
relation to Sections 3(a) and 3(b) No. 1 of Rep. Act No. 7610 and
Sec. 59(8) of PD 603, amended.
2. ESTAFA
Facts:
Accused Miguel Cosme received in trust from complainant Paul
P.A. Bunda the sum of P1,600,000.00, under the express
obligation on the part of the said accused to settle and clear the
accrued real estate taxes of the land which complainant sought
to purchase. Accused, however, did not use the money for the
payment of the accrued real estate taxes on the property in
question, but instead misappropriated it for his own use and
benefit. The trial court rendered a decision convicting Miguel
Cosme of the crime of Estafa ordering to pay the complainant
actual damages in the total amount of P1,800,000.00 with
interest thereon at the legal rate from date of filing of this action
untilfully paid.
Issue: W/N the judgment of the lower courts on the accused
civil liability is correct.
Held:
No. The guidelines laid down in Eastern Shipping lines, Inc. v.
Court of Appeals are applicable to the present case, to wit:
I.When an obligation, regardless of its source, i.e., law
contracts, quasi-contracts, delicts or quasi-delicts is breached,
thecontravenor can be held liable for damages. The provisions
under Tile XVIII on "Damages" of the Civil Code govern
indetermining the measure of recoverable damages.
II.With regard particularly to an award of interest in the concept
of actual and compensatory damages, the rate of interest,
aswell as the accrual thereof, is imposed, as follows:1.When the
obligation is breached, and it consists in the payment of a sum
of money, i.e., a loan or forbearance of money, theinterest due
should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legalinterest from
the time it is judicially demanded. In the absence of stipulation,
the rate of interest shall be 12% per annum tobe computed
from default, i.e., from judicial or extrajudicial demand under
and subject to the provisions of Article 1169 of the Civil Code.
When an obligation, not constituting a loan or forbearance of
money, is breached, an interest on the amount of damages
awarded may be imposed at the discretion of the court at the
rate of 6% per annum.
No interest, however, shall be adjudged on unliquidated claims
or damages except when or until the demand can be established
with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to
runfrom the time the claim is made judicially or extrajudicially
(Art. 1169, Civil Code) but when such certainty cannot be
soreasonably established at the time the demand is made, the
interest shall begin to run only from the date the judgment of
the court is made (at which time the quantification of damages
may be deemed to have been reasonably ascertained). Theactual
base for the computation of legal interest shall, in any case, be
on the amount finally adjudged.
When the judgment of the court awarding a sum of money
becomes final and executory, the rate of legalinterest, whether
the case falls under paragraph 1 or paragraph 2, above, shall be
12% per annum from suchfinality until its satisfaction, this
interim period being deemed to be by then an equivalent to a
forbearance of credit.
Applying the aforesaid guidelines above the Court held that
Miguel Cosme is held civilly liable to return to private
complainant Paul P.A. Bunda the amount of P1,600,000.00
with legal interest at 6% per annum from the date of filing
of the action until finality of the judgment. After the
judgment becomes final and executory, the amount due shall
further earn interest at 12% per year until the obligation is fully
satisfied.
3. Search and Seizures
Page 4 of 14
FACTS:
Victor Cogaed was riding a jeepney with a bag from Barangay
Lun-Oy and during a checkpoint, the driver of the jeepney he
rode made a signal to the police telling that Cogaed was
carrying marijuana inside Cogaed’s bag, the police officer then
approached Cogaed and asked the accused about the contents
of his bags" Cogaed replied that he did not know what was
inside and that he was just transporting the bag in favor of
Marvin, a barriomate. Cogaed subsequently opened the bag
revealing the bricks of marijuana inside. He was then arrested
by the police officers.
ISSUE:
Whether there was a valid search and seizure and, whether the
marijuana confiscated is admissible as evidence"
HELD:
There is no valid search and seizure! thus, the marijuana
confiscated shall not beadmissible as evidence". As a general
rule, searches conducted with a warrant that meets all the
requirements of article 3,Section 2 of the Constitution are
reasonable" )his warrant requires the existence of probable
cause that can only be determined by a judge"
However, there are instances when searches are reasonable
even when warrantless. The known jurisprudential instances of
reasonable warrantless searches and seizures are:
1. Warrantless search incidental to a lawful arrest
2. Seizure of evidence in plain view
3. Search of a moving vehicle
4. Consented warrantless search
5. Customs search
6. Stop and frisk
7. Exigent and emergency circumstances
The search involved in this case was initially a stop and frisk
search, but it did not comply with all the requirements of
reasonability required by the Constitution.
Stop and frisk searches (sometimes referred to as ) are
necessary for law enforcement. That is, law enforcers should be
given the legal arsenal to prevent the commission of offenses.
However, this should be balanced with the need to protect the
privacy of citizens in accordance with Article 3, Section 2 of the
Constitution. The balance lies in the concept of
“suspiciousness” present in the situation where the police
officer finds himself or herself in. This may be undoubtedly
based on the experience of the police officer. It does not have to
be probable cause, but it cannot be mere suspicion. It has to be
a “genuine reason to serve the purposes of the stop and frisk
exception.
The stop and frisk search was originally limited to outer
clothing and for the purpose of detecting dangerous weapons.
There was not a single suspicious circumstance in this case,
and there was no approximation for the probable cause
requirement for warrantless arrest.
The person searched was not even the person mentioned by the
informant. The informant gave the name of Marvin Buya, and
the person searched was Victor Cogaed. Even if it was true that
Cogaed responded by saying that he was transporting the bag
to Marvin Buya, this still remained only as one circumstance.
This should not have been enough reason to search Cogaed and
his belongings without a valid search warrant.
7. CAMAMA, FAEZ
FAEZ CAMAMA
1. Damages (1994) On January 5, 1992, Nonoy obtained a loan of
Pl,000,000.00 from his friend Raffy. The promissory note did
not stipulate any payment for Interest. The note was due on
January 5, 1993 but before this date the two became political
enemies. Nonoy, out of spite, deliberately defaulted in paying
the note, thus forcing Raffy to sue him. 1) What actual damages
can Raffy recover? 2) Can Raffy ask for moral damages from
Nonoy? SUGGESTED ANSWER: 1) Raffy may recover the
amount of the promissory note of P1 million, together with
interest at the legal rate from the date of judicial or extrajudicial
demand. In addition, however, inasmuch as the debtor is in bad
faith, he is liable for all damages which may be reasonably
attributed to the non-performance of the obligation. (Art.
2201(2). NCC). 2) Yes, under Article 2220, NCC moral damages
are recoverable in case of breach of contract where the
defendant acted fraudulently or in bad faith.
2. Builder; Good Faith; Requisites (2013) No.VIII. Ciriaco Realty
Corporation (CRC) sold to the spouses Del a Cruz a500-square
meter land (Lot A) in Paranaque. The land now has a fair
market value of Pl,200,000. CRC likewise sold to the spouses
Rodriguez, a 700-square meter land (Lot B) which is adjacent to
Lot A. Lot B has a present fair market value of P1,500,000. The
spouses Dela Cruz constructed a house on Lot B, relying on
their presentation of the CRC sales agent that it is the property
they purchased. Only upon the completion of their house did
the spouses Dela Cruz discovered that they had built on Lot B
owned by the spouses Rodriguez, not on Lot A that they
purchased. They spent P 1 000,000 for the house. As their
lawyer, advise the spouses Dela Cruz on their rights and
obligations under the given circumstances, and the recourses
and options open to them to protect their interests.
SUGGESTED ANSWER: Based on the fact as stated, the
spouses Dela Cruz as builders and the spouses Rodriguez as
land owners, are both in good faith. The spouses Dela Cruz are
builder in good faith because before constructing the house
they exercised due diligence by asking the Agent of CRC the
location of the lot A, and they relied on the information given by
the agent who is presumed to know the identity of the lot
purchased by the Dela Cruz spouses (Pleasantville v. CA, 253
SCRA 10, 1996). On the other hand, there is no showing that
the land owners, spouse Rodriguez acted in bad faith. The facts
do not show that the building was done with their knowledge
and without opposition on their part (Art 453, Civil Code). The
good faith is always presumed (Art. 527, Civil Code).
The owner of the land on which anything has been built, sown,
or planted in good faith shall have the right: (1) to appropriate
as his own the works after payment of the indemnity provided
for in Art 546 and 548, or (2) to oblige the one who built to pay
the price of the land. However, the builder cannot be obliged to
buy the land if its value is considerable more than that of the
building.. In such case, he shall pay reasonable rent of the
owner of the land does not choose to appropriate the building or
trees after proper indemnity (Art 448, Civil Code). The house
constructed by the spouses Dela Cruz is considered as a useful
expense, since it increased the value of the lot. As such, should
the spouses Rodriguez decides to appropriate the house, the
spouses Dela Cruz are entitled to the right of retention pending
reimbursement of the expenses they incurred or the increase in
value which the thing may have acquired by reason of the
improvement (Art 546, Civil Code). Thus, the spouses Dela Cruz
may demand P1,000,000.00 as payment of the expenses in
building the house or increase in value of the land because of
the house as a useful improvement, as may be determined by
the court form the evidence presented during the trial.
Page 5 of 14
3. Pierce is a French diplomat stationed in the Philippines.
While on EDSA and driving with an expired license, he hit a
pedestrian who was crossing illegally. The pedestrian died.
Pierce was charged with reckless imprudence resulting in
homicide. In his defense, he claimed diplomatic immunity. Is
Pierce correct?
SUGGESTED ANSWER:
No, Pierce is not correct. It is a fundamental doctrine in
Criminal Law, and applying the Vienna Convention on
Diplomatic Relations, that diplomatic immunity applies only to
acts performed by officials or their agents in connection with
their official diplomatic functions. Here, Pierce’s culpable act
that constituted the crime of Reckless Imprudence Resulting in
Homicide had no connection to his official diplomatic functions.
Hence, Pierce’s defense of diplomatic immunity is not correct.
8. FUENTES, KLAUS
Legal counseling Q&A
By Fuentes, Klaus Austin
Ang ako pamangkin kay napasumanginlan lagi sa amo silingan
nga nagrape sa ila anak. Ingon ako pamangkin igo ra siya
nagsulod sa kural nila kay kuhaon niya ang bola nga naligid
dapit sa ilang CR sa gawas sa ila balay. Nagbasketball man to
sila dayon gilapos ang bola sulod sa ila balay.Pero pagsulod
daw niya gisyagit ang anak nila na dalaga nga gigawas sa CR
gikan naligo.Naratol ako pamangkin ug gidagan nahulog iyang
cellphone gikan sa iyang bulsa didto sa yuta adtong balaya.
Dayon naghulat pud sa gawas iya mga barkada kauban sa
basketball.Natingala sila nga mao pa gani pagsulod niya
gahangos naman pabalik.Pagkahuman gilakag sila sa amahan
adtong dalaga na gisiyagit.Gusto niya makuha iyang cellphone
balik.Karon, milabay na ang 2 ka semana.Nagtext ako
pamangkin sa mama adtong pamilyaha.Nakuha niya ang
number sa mama sa silingan na kumare sa mama.Nya
makigkita ang mama atubangan sa simbahan kauban ang
dalaga na anak.Giadto ako pamangkin kay para makuha iya
cellphone ug aron mangayo siya ug pasaylo na wala niya
natuyo nga naa siya sa gawas sa CR paghuman ligo sa iya anak
kay igo lang man siya nagkuha sa bola na gilapas sa
kural.Karon kalit lang siya gigapos ug gipusposan sa amahan
ug lolo sa dalaga.Gisumbag pa gyud daw ug gidala siya sa
presinto.Nya wa siya ug kami kahibalo ngano napriso siya ug
lima ka adlaw. Rape man diay ang gikaso sa iyaha.Ayha pa niya
nahibaw-an human sa lima ka adlaw na nadetain siya.
Unsa mani Attorney iligal ba ang pagaresto nila sa ako
pamangkin? Insakto ba nga giabot pa ug 5 days siya napriso
ayha nahibaw-an ang kaso niya?
Answer:
Oo ilegal ang pagaresto sa iyaha.Walay balido nga warrantless
arrest kay iyang pagka-aresto dili sama sa Section 5, Rule
113.Ug dapat kasuhan ang police nga nagdetain niya ug lapas
sa 18 hours kay subay sa Article 125 sa RPC dapat taman
anang orasa napasakahan na siya ug kaso didto sa
piskalìiiiiiii.Ug nakahibalo na siya sa iyang kaso.Naka-violate
ang police kay naay illegal arrest ug naa pa gyud paglapas sa
Article 125 sa RPC. Mao ang Delay in the delivery of detained
persons to the proper judicial authorities.
9. FIEL, MEDORI
FACTS:
On September 1988, private respondents filed a petition for the
settlement of the intestate estate of the late Segundo.
Petitioners opposed assailing among others that Segundo left a
holographic will which is entirely a declaration of disinheritance
affecting Alfredo, one of the private respondents. Private
respondents opposed the probate on the ground that the
holographic will did not contain any disposition of the estate of
the deceased. RTC dismissed the petition for probate easoning
that the holographic will clearly shows preterition.
ISSUE:
Whether or not the document executed by Segundo can be
considered as a holographic will.
RULING:
A holographic will must be written, dated and signed by the
testator himself. An intent to dispose mortis causa can be
clearly deducted from the terms of the instrument, and while it
does not make an affirmative deposition of the latter’s property,
the disinheritance of Alfredo, is an act of disposition in itself.
The disinheritance results in the disposition of the property in
favor of those who would succeed in the absence of Alfredo.
With regard to the issue on preterition, the court believes that
the compulsory heirs in the direct line were not preterited in the
will. It was Segundo’s last expression bequeath his estate to all
his compulsory heirs, with the sole exception of Alfredo.
10. IBRAHIM, HANAN
SPOUSES AGGABAO V. PARULAN, JR. AND PARULAN
G.R. No. 165803, [September 1, 2010]
DOCTRINE(S):
The sale was made on March 18, 1991, or after Au-gust 3,
1988, the effectivity of the Family Code. The proper law to apply
is, therefore, Article 124 of the Family Code, for it is settled that
any alienation or encumbrance of conjugal property made
during the effectivity of the Family Code is governed by Article
124 of the Family Code.
According to Article 256 of the Family Code, the pro-visions of
the Family Code may apply retroactively provided no vested
rights are impaired. In Tumlos v. Fernandez, 330 SCRA 718
(2000), the Court rejected the petitioner’s argument that the
Family Code did not apply because the acquisition of the
contested property had occurred prior to the effectivity of the
Family Code, and pointed out that Article 256 pro-vided that
the Family Code could apply retroactively if the application
would not prejudice vested or ac-quired rights existing before
the effectivity of the Family Code. Herein, however, the
petitioners did not show any vested right in the property
acquired prior to August 3, 1988 that exempted their situation
from the retroactive application of the Family Code.
FACTS:
In January 1991, real estate broker Marta K.Atanacio offered 2
lots located in Parañaque to the petitioners. On February 2,
1991, the petitioners met up with Elena Parulan at the site of
the property and showed them the following documents: (a.)
Owner’s original copy of the TCT of the 2 lots; (b.) tax
declarations; (c.) a copy of the special power of attorney dated
January 7, 1991 executed by Dionisio authorizing Elena to sell
the property. The petitioners paid P200,000.00 as earnest
money for which Elena executed a handwritten Receipt of
Earnest Money which stipulated that the peitioners would pay
an additional payment of P130, 000.00 on February 4, 1991;
P650,000.00 on or before February 15, 1991 and P700, 000.00
on March 31, 1991 once Elena turned over the property.
On February 4, 1991, the petitioners, accompanied by the
broker, went to the Office of the Register of Deeds to verify the
TCTs shown by Elena. There they discovered that one of the lots
had been encumbered to Banco Filipino, but that the
encumbrance had been cancelled due to the full payment of the
obligation. They noticed that the loan was effected through and
SPA executed by Dionisio in favor of Elena. The other lot on the
other hand had an annotation of an existing mortgage in favor
of Los Baños Rural Bank, with the same SPA with a court order
authorizing Elena to mortgage the lot to secure the loan.
The petitioners and the broker next inquired about the
mortgage and the court order at the Los Baños Rural Bank.
There, they met with Atty. Zarate, related that the bank had
Page 6 of 14
asked for the court order because the lot involved was conjugal
property.
Following their verification, the petitioners delivered
P130,000.00 as additional down payment on February 4, 1991;
and P650,000.00 to the Los Baños Rural Bank on February 12,
1991, which then released the owner’s duplicate copy of TCT to
them.
On March 18, 1991, the petitioners delivered the final amount
of P700,000.00 to Elena, who executed a deed of absolute sale
in their favor. However, Elena did not turn over the owner’s
duplicate copy of the TCT claiming that said copy was in the
possession of a relative who was then in Hongkong. She
assured them that the owner’s duplicate copy of TCT would be
turned over after a week.
On March 19, 1991, TCT was cancelled and a new one was
issued in the name of the petitioners. Elena did not turn over
the duplicate owner’s copy of TCT as promised. In due time, the
petitioners learned that the duplicate owner’s copy of TCT had
been all along in the custody of Atty. Jeremy Z. Parulan, who
appeared to hold an SPA executed by his brother Dionisio
authorizing him to sell both lots. At Atanacio’s instance, the
petitioners met on March 25, 1991 with Atty. Parulan at the
Manila Peninsula. They were accompanied by one Atty.
Olandesca. They recalled that Atty. Parulan “smugly demanded
P800,000.00” in exchange for the duplicate owner’s copy of
TCT, because Atty. Parulan represented the current value of the
property to be P1.5 million. As a counter-offer, however, they
tendered P250,000.00, which Atty. Parulan declined, giving
them only until April 5, 1991 to decide. Hearing nothing more
from the petitioners, Atty. Parulan decided to call them on April
5, 1991, but they informed him that they had already fully paid
to Elena.
Thus, on April 15, 1991, Dionisio, through Atty. Parulan,
commenced an action (Civil Case No. 91-1005 entitled Dionisio
Z. Parulan, Jr., represented by Jeremy Z. Parulan, as attorney
in fact, v. Ma. Elena Parulan, Sps. Rex and Coney Aggabao),
praying for the declaration of the nullity of the deed of absolute
sale executed by Ma. Elena, and the cancellation of the title
issued to the petitioners by virtue thereof. In turn, the
petitioners filed on July 12, 1991 their own action for specific
performance with damages against the respondents. Both cases
were consolidated for trial and judgment in the RTC.
On July 26, 2000, the Regional Trial Court (RTC), Branch 136,
in Makati City annulled the deed of absolute sale executed in
favor of the petitioners covering two parcels of registered land
the respondents owned for want of the written consent of
respondent husband Dionisio Parulan, Jr. The CA affirmed the
RTC decision.
ISSUE:
Which between Article 173 of the Civil Code and Article 124 of
the Family Code should apply to the sale of the conjugal
property executed without the consent of Dionisio?
HELD:
Article 124, Family Code, applies to sale of conjugal properties
made after the effectivity of the Family Code
RATIO:
The petitioners submit that Article 173 of the CivilCode, not
Article 124 of the Family Code, governed the property relations
of the respondents because they had been married prior to the
effectivity of the Family Code; and that the second paragraph of
Article 124 of the Family Code should not apply because the
other spouse held the administration over the conjugal
property. They argue that notwithstanding his absence from the
country Dionisio still held the administration of the conjugal
property by virtue of his execution of the SPA in favor of his
brother; and that even assuming that Article 124 of the Family
Code properly applied, Dionisio ratified the sale through Atty.
Parulan’s counter-offer during the March 25, 1991 meeting.
To start with, Article 25427 the Family Code has expressly
repealed several titles under the Civil Code, among them the
entire Title VI in which the provisions on the property relations
between husband and wife, Article 173 included, are found.
Secondly, the sale was made on March 18, 1991, or after
August 3, 1988, the effectivity of the Family Code. The proper
law to apply is, therefore, Article 124 of the Family Code, for it
is settled that any alienation or encumbrance of conjugal
property made during the effectivity of the Family Code is
governed by Article 124 of the Family Code.
Article 124 of the Family Code provides:
“Article 124. The administration and enjoyment of the conjugal
partnership property shall belong to both spouses jointly. In
case of disagreement, the husband’s decision shall prevail,
subject to recourse to the court by the wife for proper remedy,
which must be availed of within five years from the date of the
contract implementing such decision.
In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the
acceptance by the other spouse or authorization by the court
before the offer is withdrawn by either or both offerors.”
Thirdly, according to Article 256 of the Family Code, the
provisions of the Family Code may apply retroactively provided
no vested rights are impaired. In Tumlos v. Fernandez, the
Court rejected the petitioner’s argument that the Family Code
did not apply because the acquisition of the contested property
had occurred prior to the effectivity of the Family Code, and
pointed out that Article 256 provided that the Family Code
could apply retroactively if the application would not prejudice
vested or acquired rights existing before the effectivity of the
Family Code. Herein, however, the petitioners did not show any
vested right in the property acquired prior to August 3, 1988
that exempted their situation from the retroactive application of
the Family Code.
Fourthly, the petitioners failed to substantiate their contention
that Dionisio, while holding the administration over the
property, had delegated to his brother, Atty. Parulan, the
administration of the property, considering that they did not
present in court the SPA granting to Atty. Parulan the authority
for the administration.
Nonetheless, we stress that the power of administration does
not include acts of disposition or encumbrance, which are acts
of strict ownership. As such, an authority to dispose cannot
proceed from an authority to administer, and vice versa, for the
two powers may only be exercised by an agent by following the
provisions on agency of the Civil Code (from Article 1876 to
Article 1878). Specifically, the apparent authority of Atty.
Parulan, being a special agency, was limited to the sale of the
property in question, and did not include or extend to the power
to administer the property.
Lastly, the petitioners’ insistence that Atty. Parulan’s making of
a counter-offer during the March 25, 1991 meeting ratified the
sale merits no consideration. Under Article 124 of the Family
Code, the transaction executed sans the written consent of
Dionisio or the proper court order was void; hence, ratification
did not occur, for a void contract could not be ratified. On the
other hand, we agree with Dionisio that the void sale was a
continuing offer from the petitioners and Ma. Elena that
Dionisio had the option of accepting or rejecting before the offer
was withdrawn by either or both Ma. Elena and the petitioners.
The last sentence of the second paragraph of Article 124 of the
Family Code makes this clear, stating that in the absence of the
other spouse’s consent, the transaction should be construed as
a continuing offer on the part of the consenting spouse and the
third person, and may be perfected as a binding contract upon
the acceptance by the other spouse or upon authorization by
Page 7 of 14
the court before the offer is withdrawn by either or both
offerors.
11. GANADEN, JAN RYAN
12. KISOL, NOHA
13. LLUCH, FRANCESCA
LLUCH , FRANCESCA ANDREA E.
1.
Dear PAO, Lito, a 12-year-old son of our neighbor, was playing
with an air gun when he pulled the trigger, causing the gun to
fire a bullet that hit my son Julio. My son was hospitalized for
five days because of what happened. I filed a complaint before
barangay authorities against the parents of Lito who have
actual custody of him for compensation for the injuries
sustained by my son. During the barangay confrontation, Lito’s
parents claimed that they are not liable for the act of their son
because Lito was already adopted by Mr. and Mrs. Jenis after
the incident. Who between the natural parents and the adopters
may be made liable for the injuries caused by Lito? Please help
me.|
Paquito
Dear Paquito, The law governing your situation is found under
Article 2176 of the New Civil Code of the Philippines, which
states, “Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this chapter.”
Relative thereto, Article 2180 of the same law states:
“The obligation imposed by Article 2176 is demandable not only
for one’s own acts or omissions, but also for those of persons for
whom one is responsible.
The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children
who live in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in
their company. Xxx xxx Xxx xxx Xxx xxx Xxx xxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.”
Since Lito was only adopted after he caused the injury to your
son, the natural parents who are still exercising parental
authority or had actual custody of him at the time may be made
liable for the injuries caused by the child.
In the case of Tamargo et al. vs. Court of Appeals (G.R. No.
85044 , June 3, 1992), the Supreme Court through former
Associate Justice Florentino Feliciano stated:
“The civil liability imposed upon parents for the torts of their
minor children living with them may be seen to be based upon
the parental authority vested by the Civil Code upon such
parents. The civil law assumes that when an unemancipated
child living with his parents commits a tortious acts, the
parents were negligent in the performance of their legal and
natural duty closely to supervise the child who is in their
custody and control.
Parental liability is, in other words, anchored upon parental
authority coupled with presumed parental dereliction in the
discharge of the duties accompanying such authority. The
parental dereliction is, of course, only presumed and the
presumption can be overturned under Article 2180 of the Civil
Code by proof that the parents had exercised all the diligence of
a good father of a family to prevent the damage.
In the instant case, the shooting of Jennifer by Adelberto with
an air rifle occured when parental authority was still lodged in
respondent Bundoc spouses, the natural parents of the minor
Adelberto. It would thus follow that the natural parents, who
had then actual custody of the minor Adelberto, are the
indispensable parties to the suit for damages.”
Applying the above decision to your situation, Lito’s natural
parents are still responsible for the injury caused by him. They
cannot escape liability by claiming that Lito is already adopted
because their relationship with Lito is not yet severed when the
incident occurred.
We find it necessary to mention that this opinion is solely based
on the facts you have narrated and our appreciation of the
same. The opinion may vary when the facts are changed or
elaborated. We hope that we were able to enlighten you on the
matter.
2. Dear PAO, My mother bought a vehicle when she was still
alive. We, as her children, verbally agreed that the vehicle will
be mine. Now, I am planning to sell the vehicle. Will I be able to
sell the vehicle even if it is still named after our deceased
mother? My other problem is that one of my sisters refuses to
give me the registration papers. Eric
Dear Eric, Unfortunately, you may not claim the whole vehicle
as your own property and sell it without first settling the estate
of your deceased mother. The moment your mother died, all her
properties, rights and obligations which are not extinguished by
death are transferred to her heirs (Articles 776 & 777, Civil
Code of the Philippines). At that point, a co-ownership is formed
among the heirs of your mother, with respect to the estate she
left. The co-ownership will subsist until the estate of the
decedent is settled.
During the co-ownership, a co-owner has full ownership only
with respect to his proportionate share in the whole property
and he may sell or dispose of it without the consent of the other
co-owners except when personal rights are involved (Article 493,
Ibid.). Hence, your attempt to sell the whole property will not be
possible as you are only allowed to dispose of your share. At
best, your plan to sell the whole property will only be valid as to
your proportionate share. The other co-owners or heirs who
withheld their consent shall retain their claim over the property.
As mentioned, to end the co-ownership among the heirs, the
estate of the deceased person must first be settled. This may be
made judicially or extra-judicially. Extrajudicial settlement of
estate is only allowed in case the decedent left no will and no
debt, and all the heirs, including minors who must be
represented by their judicial or legal representatives, agree to
divide the estate among themselves by means of a public
instrument (Rule 74, Section 1, Rules of Court). In other cases,
the estate must be settled with the intervention of the court.
The public instrument containing the agreement of the heirs as
to the division of the estate, or the order of the court with
respect to partition and distribution of the estate, as the case
may be, will serve as authority to transfer the title to other
persons.
The verbal agreement between you and your siblings that the
vehicle will belong to you does not comply with prescribed
procedure for settlement of estate mentioned above. Hence, you
may not use it to support your claim that you alone own the
vehicle and is entitled to sell it. Pending settlement of the estate
of your mother, the vehicle and all other properties left by your
mother shall be co-owned by her heirs. As it appears that your
mother did not leave a last will and testament, it is safe to say
that her heirs will be you, your siblings, and your father if he is
alive.
Page 8 of 14
 Again, we find it necessary to mention that this opinion is solely
based on the facts you have narrated and our appreciation of
the same. The opinion may vary when the facts are changed or
elaborated.
We hope that we were able to enlighten you on the matter
14. MACABAGO, ESNAIRAH
15. MACAPODI, MUHAMMAD- NAIM
Death Indemnity (2009)
Rommel’s private car, while being driven by the regular family
driver, Amado, hits a pedestrian causing the latter’s death.
Rommel is not in the car when the incident happened. (A). Is
Rommel liable for damages to the heirs of the deceased?
Explain.
SUGGESTED ANSWER: Yes, Rommel may be held liable for
damages if he fails to prove that he exercised the diligence of a
good father of a family (Art. 2180, par 5, NCC) in selecting and
supervising his family driver. The owner is presumed liable
unless he proves the defense of diligence. If the driver was
performing his assigned task when the accident happened,
Rommel shall be solidarily liable with the driver. In case the
driver is convicted of reckless imprudence and cannot pay the
civil liability, Rommel is subsidiarily liable for the damage
awarded against the driver and the defense of diligence is not
available.
Easements; Right of Way (2000)
The coconut farm of Federico is surrounded by the lands of
Romulo. Federico seeks a right of way through a portion of the
land of Romulo to bring his coconut products to the market. He
has chosen a point where he will pass through a housing
project of Romulo. The latter wants him to pass another way
which is one kilometer longer. Who should prevail? (5%)
SUGGESTED ANSWER: Romulo will prevail. Under Article 650
of the New Civil Code, the easement of right of way shall be
established at the point least prejudicial to the servient estate
and where the distance from the dominant estate to a public
highway is the shortest. In case of conflict, the criterion of least
prejudice prevails over the criterion of shortest distance. Since
the route chosen by Federico will prejudice the housing project
of Romulo, Romulo has the right to demand that Federico pass
another way even though it will be longer.
16. MAGANGCONG, AMERSAB
17. MANAROS, RUFFAIDAH
RUFFAIDAH NAZIMAH B. MANAROS
1. ILLEGAL DISMISSAL
Dear PAO,
I was terminated from my work as a service crew in a fastfood
joint. In one of our conversations, my supervisor told me that
the company simply had “to let me go.” Is it possible for me to
file a case for illegal dismissal?
Tito
Dear Tito,
Private employers are not prohibited from terminating the
employment contract of their employees. In the same manner,
employees are also allowed to terminate their contracts with the
company they are working with. However, it should be
emphasized that there must be a legal basis for the termination
of such contract and the same must be done in a lawful
manner.
In your situation, we do not discount the fact that your
employer has the right to terminate your employment. But such
right is not without limitation. As we have already mentioned, it
is necessary that there must be a legal basis for such
termination, that is, it should be based on one of the grounds
for termination as stated in your employment contract or in the
company policy.
If the employment contract or the company policy does not
provide for said grounds, your termination must be anchored
on any of the just or authorized causes stated under the Labor
Code. As can be gleaned under Article 282 of the said code, the
following are considered as just causes for termination: (a)
Serious misconduct or willful disobedience by the employee of
the lawful orders of his employer or representative in
connection with his work; (b) Gross and habitual neglect of duty
by the employee of his duties; (c) Fraud or willful breach by the
employee of the trust reposed in him by his employer or duly
authorized representative; (d) Commission of a crime or offense
by the employee against the person of his employer or any
immediate member of his family or his duly authorized
representative; and (e) Other causes analogous to the foregoing.
On the other hand, the following are considered as authorized
causes for termination: (1) Installation of labor-saving devices;
(2) Redundancy; (3) Retrenchment to prevent losses; (4) Closing
or cessation of business; and (5) Disease of the employee whose
continued employment is prohibited by law or is prejudicial to
his health as well as the health of his employees (Articles 283
and 284, Labor Code).
In addition, your company should have given you proper notice
prior to your termination. If your termination is based on a just
cause, they should have given you a written notice informing
you of the ground for your dismissal as well as a subsequent
notice informing you of their final decision to terminate your
employment. If the termination is based on any of the grounds
set under Article 283 of the Labor Code, they should have
served you and the Department of Labor and Employment
(DOLE) with a written notice at least one month before the
intended date of such termination.
If your termination is not consistent with the above-stated
rules, it may be said that your termination is not lawful.
Consequently, you may file a complaint for illegal dismissal
before the National Labor Relations Commission (NLRC).
We hope that we were able to answer your queries. Please be
reminded that this advice is based solely on the facts you have
narrated and our appreciation of the same. Our opinion may
vary when other facts are changed or elaborated.
2. FALSE MEDICAL CERTIFICATE
Dear PAO,
I’m a human resource head in our company. One of our
employees submitted a medical certificate as proof of his
hospital confinement for a week due to a certain illness.
Page 9 of 14
Sometime later, I was able to verify that the employee was
actually abroad for a vacation during the time of his alleged
confinement.
My company would now like to file a case against the doctor
who issued such certification especially because we found out
that this is not the only instance this doctor issued a false
medical certificate. The same doctor also issued a medical
certificate assuring that another employee was healthy despite
the fact that the employee actually contracted advance
tuberculosis. When this employee was confronted, he admitted
that he never even saw the doctor and that he was just asked to
pick up his medical certificate in the doctor’s clinic. How can we
make this doctor liable considering that he is a threat and
disservice to the medical community? Thanks and more power!
Loraine
Dear Loraine,
The actions of a doctor in issuing a false medical certificate
constitute a crime penalized by law. You may file a criminal
complaint against the doctor for the issuance of a false
certificate. The exact provision of the law on the said matter
provides that:
“Art. 174. False medical certificates, false certificates of merits
or service, etc. — The penalties of arresto mayor in its
maximum period to prision correccional in its minimum period
and a fine not to exceed P1,000 pesos shall be imposed upon:
1. Any physician or surgeon who, in connection, with the
practice of his profession, shall issue a false certificate; xxx
xxx xxx” (Revised Penal Code of the Philippines).
It can be seen from the above cited law that the issuance of a
false medical certificate carries a penalty of imprisonment and
payment of a fine. To be liable under the said law, it must be
proven that the doctor knowingly issued a false medical
certificate. Mere mistake in the content of the medical certificate
will not suffice since it is the deliberate issuance of a false
certificate that is punished by the law. Also note that the person
who knowingly used the false medical certificates can likewise
be held criminally liable for its use (Art. 175, Revised Penal
Code of the Philippines).
Aside from criminal liability, an administrative complaint can
also be filed against the said doctor before the Professional
Regulatory Commission (PRC) for the said mis-conduct. The
Medical Act of 1959 provides that the issuance of a false
medical certificate is also a ground for the reprimand,
suspension or revocation of a physician’s certificate of
registration as a doctor (Sec. 24, Article III, Republic Act [R.A.]
No. 2382). Thus, aside from criminal liability, the doctor may
also lose his license as a result of his issuance of a false medical
certificate.
Issuance of a false medical certificate by doctors can be
considered as a serious offense as it undermines the integrity of
medical practitioners in general and breeds distrust to their
highly regarded profession which is aimed to save lives and not
just to serve as mere means for practical convenience. It is to
this end that you must file proper action, as discussed above,
against such erring doctors.
3. IMPROVEMENTS MADE WHICH ADDED VALUE TO THE
PROPERTY SUBJECT TO REIMBURSEMENT
Dear PAO,
My brother and I are living with our grandmother. Since there
are repairs to be made in our grandmother’s house, we
undertook to go on with the renovations. Our grandmother, who
owns the title to the house, did not spend anything for the
renovations. Recently, our grandmother decided to sell the
house. Should our grandmother push through with the sale,
can we be reimbursed of our expenses despite the fact that we
stayed in the house of our grandmother?
JT
Dear JT,
Article 428 of the New Civil Code (NCC) provides that the owner
has the right to dispose of a thing, without other limitations
than those established by law. The law gives the owner of a
thing, as a matter of right, the right to exclude any person from
the enjoyment and disposal of his properties.
As an attribute to ownership, the owner of a thing has the
following rights:
a) The right to enjoy the fruits (jus fruendi);
b) The right to dispose (jus disponendi); and
c) The right to recover (jus vindicandi).
The right to the enjoyment of the properties carries with it the
right to possess (jus possidendi), use (jus utendi) and to make
use of the fruits (jus fruendi) of the said property. Likewise, the
right to dispose includes the right to alienate, to consume and
even abuse (jus abutendi) the property.00
You mentioned in your query that the title to the property in
question belongs to your grandmother and that her ownership
is evidenced by a Certificate of Title. For all intents and
purposes, she can sell her house to the exclusion of any other
person including you and your brother, regardless of whether
you spent for the renovation of her house, which had been your
home for so long. Legally speaking, she has all the right to do
anything with her house for as long as the act is within the
bounds of law and it will not prejudice somebody’s rights.
The right of your grandmother, however, to sell the property
which is the subject matter of your query is not without
prejudice to you and your brother’s right to be reimbursed of
the expenses that you incurred in renovating the house,
provided that the improvements or renovations that you
introduced improved the state of your grandmother’s house.
The law also protects you and your brother who are presumed
to have spent in good faith for the renovation of the house.
Your grandmother cannot make use of her right to sell the
house in such a manner that she will injure your right to be
reimbursed of the expenses you used for the renovation of the
house. As a matter of fact, if the improvements you introduced
to the house have added to the value of the property, all the
more that you should be reimbursed because the renovations
inured to the benefit of your grandmother. You and your
brother’s act of spending for the renovations may be voluntary,
however, your grandmother has benefited from the same;
hence, the latter has the obligation to compensate you and your
brother. This is in accordance with the principle in law that no
one shall be unjustly enriched or benefited at the expense of
another (Article 2142, NCC).
You and your brother can make use of your rights as granted
for by law to be reimbursed of your expenses in the same vein
that your grandmother has the obligation to compensate you of
the said expenses. This is in concurrence with Article 19 of the
NCC, which provides: “Every person must, in the exercise of his
rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.”
However, before going further with whatever actions you would
like to take to enforce your right, we advise you to settle the
matter with your grandmother and work things out. Try to
Page 10 of 14
amicably settle your issues to avoid a long and tedious
litigation. 19. OMAR, SALMAR

18. MENDOZA, SHENILYN

20. OSABEL, ARNE
Wills; Notarial Wills; Blind Testator;
Requisites (2008)
FIRST PROBLEM: (Offenses subject for barangay conciliation)
1. I had a disagreement with my neighbor. We hurled threatening
Stevie was born blind. He went to school for the blind, and words at each other, and we ended up in a fight. I wanted to file
learned to read in Baille Language. He Speaks English fluently. a case against him for threats and physical injuries. To my
Can he: surprise, I was told that I should go to the barangay council
first. Do I really have to go to the council? When can I not go
(A). Make a will? (1%)
through barangay conciliation? Please advise.
ANSWER:
SUGGESTED ANSWER:
The Katarungang Pambarangay system aims to promote the
Assuming that he is of legal age (Art. 797, Civil Code) and of
speedy disposition of cases, minimize the indiscriminate filing of
sound mind at the time of execution of the will (Art. 798, Civil
cases in courts, and in effect, decongest the court dockets and
Code), Stevie, a blind person, can make a notarial will, subject
enhance the quality of justice dispensed by the courts. In
to compliance with the "two-reading rule" (Art. 808, Civil Code)
establishing a Katarungang Pambarangay system, the State
and the provisions of Arts. 804, 805 and 806 of the Civil Code.
recognizes the time-honored tradition of amicably settling
disputes among family and barangay members at the barangay
(B). Act as a witness to a will? (1%) level (Presidential Decree (PD) 1508). In fact, settling the matter
before the barangay is required by the Supreme Court as a
condition for filing a complaint in court for cases covered by the
SUGGESTED ANSWER:
system (Supreme Court Administrative Circular 14-93 issued
Stevie cannot be a witness to a will. Art. 820 of the Civil Code
on July 15, 1993).
provides that "any person of sound mind and of the age of
eighteen years or more, and not blind, deaf or dumb, and able As a general rule, all disputes may be the subject of barangay
to read and write, may be a witness to the execution of a conciliation before the Katarungang Pambarangay, except for
will. the following disputes:
2. (1) Where one party is the government or any subdivision or
instrumentality thereof;
Death Indemnity (2009)
(2) Where one party is a public officer or employer, and the
No. X. Rommel’s private car, while being driven by the regular
dispute relates to the performance of his official functions;
family driver, Amado, hits a pedestrian causing the latter’s
(3) Offenses punishable by imprisonment exceeding one year or
death. Rommel is not in the car when the incident happened.
a fine exceeding P5,000;
(4) Where there is no private offended party;
(A). Is Rommel liable for damages to the heirs of the deceased? (5) Where the dispute involves real property located in different
Explain. (2%) cities or municipalities unless the parties thereto agree to
submit their differences to amicable settlement by an
SUGGESTED ANSWER: appropriate lupon (panel);
Yes, Rommel may be held liable for damages if he fails to prove (6) Disputes involving parties who actually reside in barangay of
that he exercised the diligence of a good father of a family (Art. different cities, except where such barangay units adjoin each
other and the parties thereto agree to submit their differences to
2180, par 5, NCC) in selecting and supervising his family driver.
The owner is presumed liable unless he proves the defense amicable settlement and by an appropriate lupon;
of diligence. If the driver was performing his assigned task when (7)Such other classes or disputeswhich the President may
the accident happened, Rommel shall be solidarily determine in the interest of justice or upon the recommendation
of the Secretary of Justice (Sec. 408, Book 3, Title 1, Chapter 7,
liable with the driver. In case the driver is convicted of reckless
Republic Act or RA 7160).
imprudence and cannot pay the civil liability, Rommel is
subsidiarily liable for the damage awarded against the driver In addition thereto, parties may go directly to court if the
and the defense of diligence is not available accused is under detention, or the person involved is otherwise
A killed B by shooting the latter's back. C, a passerby deprived of personal liberty and needs habeas corpus
proceedings, the action to be filed is coupled with provisional
who is neither a relative of B nor an agent of authority, saw
remedies such as attachment, injunction, delivery of personal
what happened. The body of B was thrown by A to mendiola property and support pendente lite, and where the action may
creek. The body was never seen by anyone. For 25 years, C did be barred by the statute of limitations (Article 412b, Book III,
not tell a soulof whet he saw. Another year had passed and C, Title I, Chapter 1, RA 7160).
because of his new religion, he decided to reveal to the According to your letter, you desire to file a complaint for
authorities the crime committed by A. A admit the crime physical injuries and threats against your neighbor. If the
imputed against him but he interposed as a defense the complaint you desire to file does not fall under any of the
prescription of the crime of murder. Will A's defense prosper? instances we have mentioned, then you must file the necessary
complaint before the barangay to settle the matter before the
lupon. If the conciliation proceedings before the barangay
Answer.
should fail, then you may request a Certificate to File Action, so
you can file the appropriate complaint against your neighbor
No. The period of prescription did not commence to run. The before the court or the office of the prosecutor. The certificate is
commission of the crime was known onky to C, who was not the a proof of compliance that you brought the matter before the
offended party, an authority or an agent of an authority. The barangay before filing it in court.
period of prescription of the crime began to run only upon the SECOND PROBLEM: (Getting out of a shotgun marriage)
time of the discovery of the authorities because of the
My nephew was forced to marry his first girlfriend when the
information given by A to them
girl’s ultra-conservative father allegedly caught them in a sexual
act. According to my nephew, he was threatened with mauling
by the father and his girlfriend’s male siblings who were all in

Page 11 of 14
the military. Out of fear, my nephew was forced to marry his
girlfriend in a civil wedding.
The intimidation and threats on my nephew continued even
after their wedding just to force him to make good with his
commitment to be a husband to his new wife. My nephew has
been suffering greatly because of this as he can’t stand both his
new wife and her abusive family. Because of this, we want to
know if my nephew can have his marriage annulled for being a
victim of a ‘shotgun wedding’? I hope you can advise us on what
we can do about this.
ANSWER:
According to the Family Code of the Philippines, the consent
freely given by the parties during marriage is one of the
essential requisites of a valid marriage. When consent in
marriage is obtained through force, intimidation or undue
influence, a ground to file a legal action for annulment of
marriage can exist. According to Article 45 of this law:
“Art. 45. A marriage may be annuled for any of the following
causes, existing at the time of the marriage:
xxx
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited
with the other as husband and wife;
xxx” (Emphasis supplied).
The law states that there is intimidation when one of the
contracting parties is compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or
property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent (Article 1335,
Civil Code).
From your narration, it appears that your nephew’s consent to
be married to his girlfriend was forced through the
intimidations of the relatives of his girlfriend. If this is true,
then there is a defect in the essential requisites in the marriage
of your nephew since his consent was derived from intimidation
instead of being freely given. This therefore makes his marriage
voidable or valid until annuled.
Note that a petition for annulment of marriage based on a
vitiated consent must be filed within five (5) years from the time
the force, intimidation or undue influence disappeared or
ceased (Article 47[4], Family Code). An action filed after this
period will be barred by prescription.
Thus, considering the allegations of intimidation to obtain the
consent of your nephew in his marriage, you may advise him to
file an appropriate petition for annulment of marriage provided
that it is supported by evidence and filed within the
aforementioned prescriptive period.
We find it necessary to mention that this opinion is solely based
on the facts you have narrated and our appreciation of the
same. The opinion may vary when the facts are changed or
elaborated. We hope that we were able to enlighten you on the
matter.
THIRD PROBLEM: (Two weddings and a funeral)
My father is currently on life support. Before his health
deteriorated, he was able to ask a lawyer to make him a last will
and testament, which is currently in our lawyer’s possession.
My siblings and I are in agreement to respect the wishes of our
father with regard to the distribution of his remaining pieces of
property. My father, however, was not able to give instructions
regarding his funeral arrangements. Since my father’s passing
away is imminent, my siblings and I are discussing his funeral
and are in disagreement as to where he should be buried. The
problem is rooted in my father having two families. My father
remarried three years after our mother passed away. His three
children from his second family would like to bury him beside
their now deceased mother. But, we, the children from his first
family, would like to bury him beside our mother and brother in
the family mausoleum that we built in the province. Given this
predicament, we would like to be apprised of the rules on who
should be followed with regard to making funeral arrangements
for our father.
ANSWER:
Articles 305 until 310 of the Civil Code of the Philippines
provide the rules on funeral preparations of a deceased.
Provisions relevant to your concerns are as follows:
“Article 305. The duty and the right to make arrangements for
the funeral of a relative shall be in accordance with the order
established for support, under Article 294 (now Article 199 of
the Family Code of the Philippines). In case of descendants of
the same degree, or of brothers and sister, the oldest shall be
preferred. In case of ascendants, the paternal shall have a
better right.
xxx xxx xxx
Article 307. The funeral shall be in accordance with the
expressed wishes of the deceased. In the absence of such
expression, the religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the funeral shall be
decided upon by the person obliged to make arrangements for
the same, after consulting the other members of the family.”
It is clear from the above provisions that if the deceased did not
leave any instructions regarding to his funeral arrangements,
the duty to make the funeral arrangements lies with the
remaining relatives of the deceased, the order of preference of
which is in accordance with the order established on those who
are obliged to give support, which is as follows:
(i) Spouse
(ii) The descendants in the nearest degree;
(iii) The ascendants in the nearest degree;
(iv) The brothers and sisters (Article 199, Family Code of the
Philippines).
From the letter that you sent to us, it appears that your father
is a widower. Thus, the obligation to make arrangements for his
funeral now resides in his children. You, however, mentioned
that the root of your problem is the disagreement among your
siblings regarding the place of his interment. Article 305 of the
Civil Code of the Philippines instructs that in case of
disagreement between the children on decisions pertaining to
the funeral arrangements, the decision of the oldest child shall
be preferred. Therefore, the decision of your oldest sibling must
be followed. Article 305 of the law is quoted below, to wit:
“Article 305. The duty and the right to make arrangements for
the funeral of a relative shall be in accordance with the order
established for support, under Article 294. In case of
descendants of the same degree, or of brothers and sisters, the
oldest shall be preferred. In case of ascendants, the paternal
shall have a better right.”
Please keep in mind when making arrangements for your
father’s funeral that the same must be in keeping with his
social position (Article 306, Civil Code of the Philippines) and
his religious beliefs or affiliation (Article 307, Id.).
We find it necessary to mention that this opinion is solely based
on the facts you have narrated and our appreciation of the
same. The opinion may vary when the facts are changed or
elaborated. We hope that we were able to enlighten you on the
matter.
21. PACALDO, JOCELYN
I.
Lauro owns an agricultural land planted mostly with
fruit trees. Hernando owns an adjacent land devoted to his
piggery business, which is 2 meters higher in elevation.
Although Hernando constructed a waste disposal lagoon for his
piggery, it is inadequate to contain the waste water containing
pig manure, and it often overflows and inundates Lauro’s
plantation. This has increased the acidity of the soil in the
Page 12 of 14
plantation, causing the trees to wither and die. Lauro sues for
damages caused to his plantation. Hernando invokes his right
to the benefit of a natural easement in favor of his higher estate,
which imposes upon the lower estate of Lauro the obligation to
receive the waters descending from the higher estate. Is
Hernando correct?
Suggested Answer
Hernando is wrong. It is true that Lauro’s land is burdened with
the natural easement to accept or receive the water which
naturally and without interruption of man descends from a
higher estate to a lower estate. However, Hernando has
constructed a waste disposal lagoon for his piggery and it is this
water that flows downward to Lauro’s land. Hernando has,
thus, interrupted the flow of water and has created and is
maintaining a nuisance. Under Art 697 NCC, abatement of a
nuisance does not preclude recovery of damages by Lauro even
for the past existence of nuisance. The claim for damages may
also be premised on Art 2191(4) NCC.
2.
Alex was born a Filipino but was a naturalized Canadian citizen
at the time of his death. He left behind a last will and testament
in which he bequeathed all his properties, real and personal, in
the Philippines to his acknowledged illegitimate Filipina
daughter and nothing to his legitimate Filipino sons. The sons
sought the annulment of the last will and testament on the
ground that it deprived them of their legitimes but the daughter
was able to prove that there were no compulsory heirs or
legitimes under Canadian law. Who should prevail? Why?
Suggested Answer
The daughter should prevail because Article 16 of the New Civil
Code provides that intestate and testamentary succession shall
be governed by the national law of the person whose succession
is under consideration.
3.
Joe and Rudy formed a partnership to operate a car repair shop
in Iligan City. Joe provided the capital while Rudy contributed
his labor and industry. On one side of their shop, Joe opened
and operated a coffee shop while on the other side, Rudy put up
a car accessories store. May they engage in such separate
businesses? Why?
Suggested Answer:
Joe, the capitalist partner, may engage in the coffee shop
business because it is not the same kind of the business the
partnership is engaged in. On the other hand, Rudy may not
engage in any other business unless their partnership expressly
permits him to do so because as an industrial partner he has to
devote his full time to the business of the partnership (Art.
1789, NCC).
22. PONGASE, MARK JAMES
inkaso maka apas ko sa klase
Q1: 4 foreign med students rented my apartment for a period of
one year. After one semester, 3 of them returned to their home
country and the 4th transferred to a boarding house. They left
unpaid internet bills in the total amount of P 20K. The lease
contract provided that the lessees shall pay for the internet
services in the leased premises. I demanded the 4th student to
pay the entire amount of the unpaid bills, but she said she will
only pay 5K. Is she correct?
A1: The fourth student is correct. Her liability is only joint,
hence, pro rata. There is solidary liability only when the
obligation expressly so states or when the law or nature of the
obligation requires solidarity (Art. 1207, CC). The contract of
lease in the problem does not, in any way, stipulate solidarity.
Q2: I was leasing an apartment in Iligan. My landlord wanted
me to leave but she cannot increase the rental due to Rent
Control Law. In order for me to leave the premises, she stopped
making repairs on the apartment and caused the water and
electricity services to be disconnected. I suffered nervous
breakdown due to the difficulty of living without electricity and
running water. Can I saw her for actual and moral damages?
A2: Yes, based on quasi-delict under the human relations for
quasi-delict may nonetheless prosper. The Supreme provisions
of the New Civil Code (Articles 19, 20 and 21) because the act
committed by the lessor is contrary to morals. Moral damages
are recoverable under Article 2219 (10) in relation to Article 21.
Although the action is based on quasi-delict and not on
contract, actual damages may be recovered if you are able to
prove the losses and expenses she suffered.
Q3: I bought a residential land form Mr and Mrs Sipi. It was
donated by them to the City of Iligan on the condition that the
city government would build thereon a public park with a
boxing arena, which the construction of such should commence
within 6 months from the date the parties ratify the donation.
The donee accepted the donation and the title to the property
was transferred to the donee. After 5 years from donation, the
donee failed to build the public park with the boxing arena, so
Mr. and Mrs. Sipi sold it to me and I bought it. The City of Iligan
told me that the land belongs to the City of Iligan. Mr and Mrs
Sipi told the city government for its failure to comply the
conditions, hence the donation is revoked. Can I recover the
property I bought from Mr. and Mrs Sipi?
A3: Buyer has no right to recover the land. It is true that the
donation was revocable because of breach of the conditions. But
until and unless the donation was revoked, it remained valid.
Hence, Spouses Sipi had no right to sell the land to the buyer.
One cannot give what he does not have. What the donors
should have done first was to have the donation annulled or
revoked. And after that was done, they could validly have
disposed of the land in favor to the buyer.
23. SALBO, NUJOMA
SALBO, NUJOMA A.
Inter-Country Adoption; Formalities (2005)
Hans Berber, a German national, and his Filipino wife, Rhoda,
are permanent residents of Canada. They desire so much to
adopt Magno, an 8-year old orphaned boy and a baptismal
godson of Rhoda. Since the accidental death of Magno's parents
in 2004, he has been staying with his aunt who, however, could
hardly afford to feed her own family. Unfortunately, Hans and
Rhoda cannot come to the Philippines to adopt Magno although
they possess all the qualifications as adoptive parents.
Is there a possibility for them to adopt Magno? How should
they go about it? (5%)
SUGGESTED ANSWER:
Yes, it is possible for Hans and Rhoda to adopt Magno. Republic
Act No. 8043 or the Inter-Country Adoption Act, allows aliens or
Filipinos permanently residing abroad to apply for inter-country
adoption of a Filipino child. The law however requires that only
legally free child, or one who has been voluntarily or
involuntarily committed to the DSWD or any of its accredited
agencies, may be subject of intercountry adoption. The law
further requires that aside from possessing all the
qualifications, the adoptive parents must come from a country
where the Philippines has diplomatic relations and that the
government maintains a similarly accredited agency and that
adoption is allowed under the national law of the alien.
Moreover, it must be further shown that all possibilities for a
domestic adoption have been exhausted and the inter-country
adoption is best for the interest of the child. Hans and Rhoda
have to file an application to adopt Magno, either with the
Regional Trial Court having jurisdiction over Magno or with the
Inter-Country Adoption Board in Canada. Hans and Rhoda will
then undergo a trial custody for six (6) months from the time of
Page 13 of 14
placement. It is only after the lapse of the trial custody that the
decree of adoption can be issued.

Family Code; Retroactive Application; Vested Rights (2000)

On April 15, 1980, Rene and Angelina were married to each

other without a marriage settlement. In 1985, they acquired a
parcel of land in Quezon City. On June 1, 1990, when Angelina
was away in Baguio, Rene sold the said lot to Marcelo. Is the
sale void or voidable? (2%)

SUGGESTED ANSWER:

The sale is void. Since the sale was executed in 1990, the
Family Code is the law applicable. Under Article 124 of the FC,
the sale of a conjugal property by a spouse without the consent
of the other is void.

Builder; Good Faith vs. Bad Faith (2000)

In good faith, Pedro constructed a five-door commercial building

on the land of Pablo who was also in good faith. When Pablo
discovered the construction, he opted to appropriate the
building by paying Pedro the cost thereof. However, Pedro
insists that he should be paid the current market value of the
building, which was much higher because of inflation. 1) Who is
correct Pedro or Pablo?(1%) 2) In the meantime that Pedro is not
yet paid, who is entitled to the rentals of the building, Pedro or
Pablo? (1%)

SUGGESTED ANSWER:

Pablo is correct. Under Article 448 of the New Civil Code in

relation to Article 546, the builder in good faith is entitled to a
refund of the necessary and useful expenses incurred by him,
or the increase in value which the land may have acquired by
reason of the improvement, at the option of the landowner. The
builder is entitled to a refund of the expenses he incurred, and
not to the market value of the improvement. In the Pecson case,
the builder was the owner of the land who later lost the
property at a public sale due to non-payment of taxes. The
Court ruled that Article 448 does not apply to the case where
the owner of the land is the builder but who later lost the land;
not being applicable, the indemnity that should be paid to the
buyer must be the fair market value of the building and not just
the cost of construction thereof. The Court opined in that case
that to do otherwise would unjustly enrich the new owner of the
land. Therefore, the case of Percson vs CA is not applicable.

24. RENABOR, BAIRODEN

25. TUMADA, MADONNA

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