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Civil Law 1 Finals/Compilations of Quizzes 1-29

Judge Jose Blanza, Jr.

Quiz No. 1 – Effect and Application of Laws (Art. 1 – 7, NCC)

I
A and B are spurious children of X, born on 1945 and 1947, respectively. X died in 1955. Can A and B inherit from him? (5%) Would
your answer be the same if X died the year after B’s birth? (5%)

Answer: Civil Law Reviewer by Jurado, p. 5; Bar Problem (1977)

Yes. If X died in 1955, A and B can inherit from him. Under the facts presented, X died after the effectivity (August 30, 1950) of the
New Civil Code and before the effectivity (August 3, 1988) of the Family Code. This is of course, based on the assumption that X had
recognized them as his spurious children either voluntarily or compulsorily. If X had not recognized them, they cannot inherit from
him.

No, my answer will not be the same if X died the year after B’ birth. If X died the year after B’s birth, then A and B cannot inherit
from him. The reason is that in such case, the right or capacity of A and B to inherit from X shall still be governed by the Spanish
Civil Code (Art. 2263, CC). Under the facts presented, X died prior to the effectivity (August 30, 1950) of the New Civil Code. Under
said Code, spurious children cannot inherit.

II
May the 15-day period of publication be reduced or extended? (10%)

Answer: Civil Law Reviewer by Albano, p. 2; Tañada vs. Tuvera, G.R. No. 63915, Dec. 29, 1986,

Yes. The phrase “unless it is otherwise provided” in Art. 2 of the New Civil Code refers to the date of effectivity of laws and not the
requirement of publication (Tañada vs. Tuvera). Publication is indispensable in every case, but the legislature may, in its discretion,
provide that the usual 15-day period be shortened or extended. For example, the Civil Code did not become effective after 15 days
from its publication in the Official Gazette but one year after its publication. (Tañada vs. Tuvera). It is the shortening or extending the
15-day period of publication that the date of effectivity of the law is shortened or extended which the phrase “unless otherwise
provided” means.

III
Judge Arcaya-Chua issued a Temporary Protection Order (TPO) in favor of petitioner Albert Chang Tan against his wife. Is Judge
Chua guilty of gross ignorance of the law? (10%)

Answer: Paras, p. 23; Ocampo vs. Judge Arcaya-Chua, 619 SCRA 59 [2010]

Yes, Judge Chua is guilty of gross ignorance of the law. Art. 3 of the New Civil Code provides that ignorance of the law excuses no
one from compliance therewith. Under RA 9262 otherwise known as The Anti-Violence against Women and Their Children Act of
2004, a TPO cannot be issued in favor of a man against his wife (Ocampo vs. Judge Arcaya-Chua). In the instant case, Judge Chua
issued TPO in favor of the husband against the wife. Therefore, he is guilty of gross ignorance of the law.

IV
Under RA 2613, inferior courts had no jurisdiction to appoint guardians. A subsequent statute, RA 3090, approved in June 1961,
sought to correct this oversight, and the new law thus granted to said courts jurisdiction over guardianship cases. Now then in view of
the passage of the new law, would a municipal court have jurisdiction over a petition for guardianship filed in January 1960, when RA
2613 was still in force?

Answer: Paras, p. 31; Largardo vs. Masaganda, et. al., L-17624, June 30, 1962

No. Art. 4 of the New Civil Code provides that laws shall have no retroactive effect, unless the contrary is provided. In Largardo vs.
Masaganda, the Supreme Court held that the new Act should not be given retroactive effect, in the absence of a saving clause to the
contrary. The jurisdiction of a court depends on the law existing at the time an action is filed. In the instant case, the petition for
guardianship was filed in January 1960 when RA 2613 was still in force and there is no saving clause to the contrary of the new law
under the facts presented. Therefore, the municipal court cannot acquire jurisdiction over the subject petition for guardianship.

V
On October 26, 2000, Rita filed a complaint for legal separation against her husband, Brigido. The complaint prays that all of the
conjugal properties be awarded to her. Subsequently, the RTC rendered a Decision dated October 10, 2005 granting the legal
separation. Brigido raised an issue before the Supreme Court - Was his vested right over half of the common properties of the conjugal
partnership violated when the trial court forfeited them in favor of his children pursuant to Articles 63(2) and 129 of the Family Code?
Rule on the issue.

Answer: Rabuya, pp. 16-17; Quiao vs. Quiao, 675 SCRA 642 (2012)

No. Art. 4 of the New Civil Code provides that laws shall have no retroactive effect, unless the contrary is provided. Art. 256 of the
Family Code provides that it shall have no retroactive effect insofar as it does not prejudice or impair vested or acquired rights. The
concept of vested right is a consequence of the constitutional guaranty of due process that expresses a present fixed interest which in
right reason and natural justice is protected against arbitrary state action; it includes not only legal or equitable title to the enforcement
of a demand but also exemptions from new obligations created after the right has become vested. Rights are considered vested when
the right to enjoyment is a present interest, absolute, unconditional, and perfect or fixed and irrefutable. (Quiao vs. Quiao).
Further in Quiao vs. Quiao, the Supreme Court said that it is clear that while one may not be deprived of his vested right, he may lose
the same if there is due process and such deprivation is founded in law and jurisprudence.

In the instant case, Brigido loses his vested right over half of the common properties of the conjugal partnership after he was given due
process to which it was decided after trial and after he was given the chance to present his evidence and such deprivation is founded in
Art. 176 of the Civil Code which is repeated in Articles 63 and 129 of the Family Code.

VI
A contract for three years was entered into by the municipal council for the lease of certain fisheries to X. On the third year, X failed
to pay the balance of P1,779.17. The municipality seeks to recover the same through an action in court. In his defense, X stated that
the contract is without the approval of the provincial governor which is in violation of Section 2196 of the Revised Administrative
Code. In accordance with Article 5 of the New Civil Code, acts executed against the provisions of mandatory laws shall be void.
Hence, the said contract is void. Is X correct? (10%)

Answer: Paras, p. 36; Municipality of Camiling vs. Lopez, G.R. No. L-8945, May 23, 1956

No. Art. 5 of the New Civil Code provides that acts executed against the provisions of mandatory or prohibitory laws shall be void,
except when the law itself authorizes their validity. In the case of Municipality of Camiling vs. Lopez, the Supreme Court held, “What
creates our doubt is the incorrect interpretation given the term “nulos” in Article 4 of the old Civil Code. The acts declared void (actos
nulos) are those executed in violation of the provisions of law. Not all of these are ipso facto void. They may be of two kinds, those
that are ipso facto void and those which are merely voidable. (1 Manresa 119). The approval by the provincial governor of contracts
entered into and executed by a municipal council, as required in section 2196 of the Revised Administrative Code, is part of the
system of supervision that the provincial government exercises over the municipal governments. It is not a prohibition against
municipal councils entering into contracts regarding municipal properties subject of municipal administration or control. It does not
deny the power, right or capacity of municipal councils to enter into such contracts; such power or capacity is recognized. Only the
exercise thereof is subject to supervision by approval or disapproval, i.e., contracts entered in pursuance of the power would ordinarily
be approved if entered into in good faith and for the best interests of the municipality; they would be denied approval if found illegal
or unfavorable to public or municipal interest. The absence of the approval, therefore, does not per se make the contracts null and
void.”

In the case at bar, except for the lack of said approval, the contract of lease is a perfectly legitimate one. The subject thereof are
fisheries belonging to the municipality, subject to management and administration by itself. Neither is there anything in the contract of
lease which would taint it with illegality, like a violation of public order or public morality, or a breach of a declared national policy.
The contract is not ipso facto absolutely null and void. It could have been ratified after its execution in the ordinary course of
administration. It is merely voidable at the option of the party who in law is granted the right to invoke its invalidity.

VII
In a charter party contract, the owner of the cargo waived the right to recover damages from the shipowner and the ship agent for the
acts or conduct of the captain. More specifically, the contract provided that the owners shall not be liable for loss, split, short-landing,
breakages, and any kind of damages to the cargo. The plaintiff contended that the waiver is contrary to Articles 586 and 587 of the
Code of Commerce. Is the contention correct? Why? (10%)

Answer: Civil Law Reviewer by Albano, p. 6-7; Valenzuela Hardwood and Industrial Supply, Inc. vs. CA, et. al., G.R. No. 102316,
June 30, 1997, 84 SCAD 105

No. Article 6 of the Civil Code provides that: “Rights may be waived, unless the waiver is contrary to law, public policy, public order,
morals, or good customs or prejudicial to a third person with a right recognized by law.” As a general rule, patrimonial rights may be
waived as opposed to rights to personality and family rights which may not be made the subject of waiver. (See Article 2035, NCC).
Being patently and undoubtedly patrimonial, petitioner’s right conferred under said articles may be waived. (Valenzuela Hardwood
and Industrial Supply, Inc. vs. CA). In the instant case, the contract provided that the owners shall not be liable for loss, split, short-
landing, breakages, and any kind of damages to the cargo which are patrimonial rights. The plaintiff did by acceding to the contractual
stipulation that he is solely responsible for any damage to the cargo, thereby exempting the private carrier from any responsibility for
loss or damage thereto. Furthermore, the contract of private carriage binds the plaintiff and the shipowner/ship agent. It is not imbued
with policy considerations, for the general public or third persons are not affected thereby. Therefore, the subject rights are deemed
waived.

VIII
Because the land he bought had a much smaller area that what had been agreed upon, Padilla sued the seller Dizon either for a refund
of the whole amount or for a proportionate reduction in price. Judgment was rendered in Padilla’s favor, giving Dizon the option to
choose: refund or reduce. After the judgment had become final, Dizon selected the right to refund the whole amount. But Padilla,
apparently realizing that the sale was really in his favor, filed a motion to waive the decision in his favor, and asked for the restoration
of the parties to the status quo. As a judge, will you grant the motion of Padilla? (10%)
Answer: Paras, p. 42-43; Padilla vs. Dizon, G.R. No. L-8026, April 20, 1956

No. Art. 6 of the New Civil Code provides that rights may be waived, unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third person with a right recognized by law. In the case of Padilla vs. Dizon, the Supreme
Court held that the motion to waive the decision in favor of Padilla cannot be done because a waiver cannot prejudice the right given
to Dizon to make the choice. Dizon here is an example of a third person with a right recognized by law. The instant case cited the
same facts of the foregoing jurisprudence. Therefore, the motion of Padilla cannot be granted.

IX
Under the Chattel Mortgage Law, a chattel mortgage must be registered in the Chattel Mortgage Register. Under the Motor Vehicles
Law, a chattel mortgage on an automobile must be registered in the Motor Vehicles Office (now the Land Transportation Office).
Now then, has the latter law repealed the former? (10%)
Answer: Paras, p. 46; Borlough vs. Fortune Enterprises, G.R. No. L-9451, March 29, 1957; Montano vs. Lim Ang, L-13057, February
27, 1963

No. Art. 7 of the New Civil Code, 1st phrase of the 1st paragraph provides that laws are repealed only by subsequent ones. The
requirement of registration in the Motor Vehicles Office is merely additional to the requirement of registration in the Chattel Mortgage
Registry, if the subject matter is a vehicle. The two laws are complementary, not inconsistent. (Borlough vs. Fortune Enterprises). The
failure of the chattel mortgagee to register the mortgage of a car in the Motor Vehicles Office has the effect of making said mortgage
ineffective against third persons who have registered in the MVO the purchase in good faith of the car. (Montano vs. Lim Ang). The
instant case cited the same facts of the foregoing jurisprudence. Therefore, the Motor Vehicles Law which is the later law did not
repeal the Chattel Mortgage Law which is the former law.

X
The plaintiff obtained a loan in the amount of P450.00 from defendant PNB dated July 19, 1939, maturing on July 19, 1944, secured
by real estate mortgage. As of November 27, 1959, the balance due on said loan was in the amount of P1,294.00. As early as July 13,
1959, PNB instituted extra-judicial foreclosure proceedings for the recovery of the balance of the loan remaining unpaid. Plaintiff
countered with his suit on August 10, 1959 with her main allegation being that the mortgage sought to be foreclosed had long
prescribed, fifteen years having elapsed from the date of maturity, July 19, 1944.

On March 10, 1945, President Osmeña issued Executive Order No. 32 and continued by Republic Act No. 342, the moratorium
legislation, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers. But it was
explicitly held in Rutter vs. Esteban (93 Phil. 68) promulgated on May 18, 1953 where such enactment and executive order were
considered “unreasonable and oppressive, and should not be prolonged a minute longer, and, therefore, the same should be declared
null and void and without effect”
PNB prayed for the dismissal of the suit because the prescriptive period has not yet lapsed if the period of the moratorium were to be
deducted. But the lower court decided in favor of the plaintiff stating that an unconstitutional act, for that matter an executive order or
a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any
official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes
a mere scrap of paper. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws of the Constitution.3 It is understandable why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its terms cannot survive. Is the lower court correct? (10%)

Answer: Rabuya, p. 29; De Agbayani vs. PNB, 38 SCRA 429

No. Art. 7 of the New Civil Code, 2nd paragraph provides that when the courts declared a law to be inconsistent with the Constitution,
the former shall be void and the latter shall govern. The Supreme Court in the case of De Agbayani vs. PNB said that until after the
judiciary, in an appropriate case, declares the legislative or executive act its invalidity, it is entitled to obedience and respect. In the
language of an American Supreme Court decision: "The actual existence of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased
by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with
respect to particular relations, individual and corporate, and particular conduct, private and official."

The Supreme Court further said that the conclusion to which the foregoing considerations inevitably led was that as of the time of
adjudication, it was apparent that Republic Act No. 342 could not survive the test of validity. Executive Order No. 32 should likewise
be nullified. Before the decision, they were not constitutionally infirm. Then, there is all the more reason to yield assent to the now
prevailing principle that the existence of a statute or executive order prior to its being adjudged void is an operative fact to which legal
consequences are attached.
The prescriptive period was tolled however, from March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953, when
the decision of Rutter v. Esteban was promulgated, covering eight years, two months and eight days. Obviously then, when resort was
had extra-judicially to the foreclosure of the mortgage obligation, there was time to spare before prescription could be availed of as a
defense.
Quiz No. 2 – Effect and Application of Laws (Art. 8 – 18, NCC)

I
On September 10, 1950, at about noon time, a Philippine customs patrol team on board Patrol Boat ST-23 intercepted five sailing
vessels on the high seas between British North Borneo and Sulu, while they were heading towards Tawi-Tawi, Sulu. The vessels were
all of Philippine registry, owned and manned by Filipino residents of Sulu. The cargo consisted of cigarettes without the required
import license, hence, smuggled. They were seized by the patrol boat. May the seizure be made although the vessel was on the high
seas? (10%)

Answer: Paras, p. 99; Illuh Asaali, et. al. vs. Commissioner of Customs, L-24170, Dec. 16, 1968

Yes, for the following reasons:

The vessels were of Philippine registry, hence under the Revised Penal Code, our penal laws may be enforced even outside our
territorial jurisdiction.
It is well-settled in international law that a state has the right to protect itself and its revenues, a right not limited to its own territory,
but extending to the high seas. (Church vs. Hubbart, 2 Cranch 187, 234)

II
A, a citizen of Nevada, USA, died testate in Manila. In his will, he left the bulk of his estate to a grandchild resulting in the
impairment of the legitime of his other heirs. The system of legitime is not recognized in Nevada. Is the disposition valid? (10%)

Answer.

Yes. The disposition is valid. This is clear from the provision of the second paragraph of Art. 16 of the Civil Code. Since the
applicable law is the law of Nevada which does not recognize the system of legitime, therefore, A is free to dispose of his properties in
favor of any person not disqualified by his national law to inherit from him. (Phil. Trust Co. vs. Bohanan, 106 Phil, 997)

III
An alien testator (Turk) who made his will in the Philippines stated in the will that his property should be distributed in accordance
with Philippine law, and not of his nation. Is the provision valid? (10%)

Answer: Paras, p. 108; Miciano vs. Brimo, 50 Phil. 867

No, for Turkish law should govern the disposition of his property. This is clear under Article 16.

IV
A, a citizen of California, USA, but domiciled in the Philippines, died testate in Manila, survived by two illegitimate natural children,
B and C. In his will, he left more than P500,000 to B and only P3,000 to C. It is admitted that under the Civil Code of California, the
domiciliary law of the decedent shall govern questions involving the validity of testamentary provisions. C, who is contesting the
validity of the disposition in favor of B, now contends that Philippine laws with respect to succession are applicable. Is this correct?
(10%)

Answer.

Yes, this is correct. The doctrine of renvoi is applicable in the instant case. Although the Civil Code in Art. 16 states that the intrinsic
validity of testamentary provisions shall be regulated by the decedent’s national law, nevertheless, the Civil Code of California
declares that the decedent’s domiciliary law shall govern. Hence, the questions shall be referred back to the decedent’s domicile. In
other words, the laws of the Philippines with respect to succession shall govern. Consequently, in the partition of the estate, C shall be
given a share which must not be less than his legitime. (Aznar vs. Garcia, 7 SCRA 95).

V
In Japan, a Chinese sold to a Filipino a parcel of land located in the Philippines. The law of which country governs the formalities of
the sale? (10%)

Answer: Paras, p. 115

The law of the Philippines because the land is located here. This is (Art. 16, par. 1), an exception to lex loci celebrationis.

VI
A, a foreigner is married to B, a Filipino. They begot a child, but A obtained a decree of divorce from his country and under the
divorce decree, A is not obligated to support the child. While in the Philippines, the child represented by the mother asked for support,
but A contended that pursuant to a divorce decree and his law, he is not obliged to support the child. Is A correct? Why? (10%)

Answer:

There are two possible answers based on the jurisprudence cited below:

If you answer Yes – your law should be Art. 15, NCC


If you answer No – your law should be Art. 17, par. 3, NCC

Under the law, a child is entitled to be supported by the father. However, if the father is a foreigner and a divorce decree has been
rendered where under the law of the father, he is not obliged to support the child, then, the obligation ceases to exist. The contention
that under Art, 195 of the Family Code, he is obliged to give support notwithstanding the divorce decree is not quite correct because of
the nationality principle (Art. 15, NCC). Insofar as Philippine laws are concerned, specifically the provisions of the Family Code on
support, the same only applies to Filipino citizens. By analogy, the same principle applies to foreigners such that they are governed by
their national law with respect to family rights and duties which provides that laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. (Art. 15, NCC).

The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is a citizen of
Holland or the Netherlands, the lower court was correct that he is subject to the laws of his country, not to Philippine law, as to
whether he is obliged to give support to his child, as well as the consequences of his failure to do so. (Norma A. Del Socorro vs.
Ernest Johan Brinkman Van Wilsen, G.R. No. 193707, December 10, 2014).

In Vivo vs. Cloribel, G.R. No. L-25411, October 26, 1968, 25 SCRA 616, it was said that being still aliens, they are not in position to
invoke the provisions of the Civil Code of the Philippines, for that Code cleaves to the principle that family rights and duties are
governed by their personal law, i.e., the laws of the nation to which they belong even when staying in a foreign country. (Civil Code,
Art. 15; Norma A. Del Socorro vs. Ernest Johan Brinkman Van Wilsen, G.R. No. 193707, December 10, 2014, Peralta, J.)

In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual presumption shall
govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign
law is the same as our local or domestic or internal law.44 Thus, since the law of the Netherlands as regards the obligation to support
has not been properly pleaded and proved in the instant case, it is presumed to be the same with Philippine law, which enforces the
obligation of parents to support their children and penalizing the non-compliance therewith.

We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents have no obligation to
support their children or that such obligation is not punishable by law, said law would still not find applicability, in light of the ruling
in Bank of America, NT and SA v. American Realty Corporation,47 to wit:

In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in accordance with
Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would
still not find applicability.

Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the said foreign
law, judgment or order shall not be applied. Additionally, prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated,
or by determinations or conventions agreed upon in a foreign country.

The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the splitting up of
a single cause of action.We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents
have no obligation to support their children or that such obligation is not punishable by law, said law would still not find
applicability,in light of the ruling in Bank of America, NT and SA v. American Realty Corporation,47 to wit:

Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor penalize the
noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of great injustice to the child
to be denied of financial support when the latter is entitled thereto. We emphasize, however, that as to petitioner herself, respondent is
no longer liable to support his former wife, in consonance with the ruling in San Luis v. San Luis,49 to wit: As to the effect of the
divorce on the Filipino wife, the Court ruled that she should no longer be considered married to the alien spouse. Further, she should
not be required to perform her marital duties and obligations. It held: To maintain, as private respondent does, that, under our laws,
petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to
private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be
discriminated against in her own country if the ends of justice are to be served.

VII
A Filipina was married to an American who obtained a divorce decree in the United States. When the Filipina came back to the
Philippines and started her business, the American followed suit and wanted to enforce his rights over the Filipina to the extent of
claiming his rights to administer the properties of the woman, contending that they are still married. He also claimed hereditary rights.
Is he correct? Why? (10%)

Answer: Albano Reviewer, p. 12; Van Dorn vs. Romillo, Jr., L-68470, October 8, 1985

No. In Van Dorn vs. Romillo, Jr., L-68470, October 8, 1985, it was said that public policy and our concept of morality abhor absolute
divorce. But owing to the nationality principle under Art. 15, NCC, only Philippine nationals are governed by the policy against
absolute divorce obtained abroad by an alien which may be recognized in the Philippines, provided, it is valid according to his
national law. (Van Dorn vs. Romillo, Jr., L-68470, October 8, 1985).

Hence, an American national who had divorced a Filipina wife cannot justifiably maintain that, under our laws, the Filipina, despite
the divorce, has to be considered still married to him and still subject to a wife’s obligation.

A Filipina should not be discriminated against her own country if the ends of justice are to be served. She should not be obliged to live
with him, to support him, or to observe respect and fidelity to the ex-husband, and the latter should not continue to be one of her heirs
with possible rights to conjugal properties.

VIII
A, a Filipino citizen, is residing in the United States. He left properties in the Philippines. He has five children with his wife, B. He
executed a last will and testament instituting his only son as his sole heir. At the probate of the will, the other compulsory heirs
objected on the ground of preterition. C, the proponent of the probate contended that under the law of the place where A was residing,
he was allowed to give all his estate to only one of his children. Decide.
Answer: Albano Reviewer, p. 20

If I were the judge, I would deny the probate of the will because under the nationality theory, the order of succession, the amount of
successional rights, the intrinsic validity of the will, and the capacity to succeed shall be governed by the national law of the person
whose succession is under consideration. Since A had five children, and he instituted only one of them, the will is intrinsically void
because he preterited his other compulsory heirs.

IX
Alex was born a Filipino, but was a naturalized Canadian citizen at the time of his death on December 25, 1998. 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
daughter and nothing to his two 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? (10%)

Answer.

The daughter should prevail. Alex was already a citizen of Canada at the time of his death. Art. 16 of the New Civil Code provides
that the intrinsic validity of testamentary provisions shall be governed by the national law of the person whose succession is under
consideration. Hence, the laws of Canada apply in the present case.

X
In his lifetime, a Pakistani citizen, Adil, married three times under Pakistani law. When he died an old widower, he left behind six
children, two sisters, three homes, and an estate worth at least 30 million pesos in the Philippines. He was born in Lahore, but last
resided in Cebu City, where he had a mansion and where two of his youngest children now live and work. Two of his oldest children
are farmers in Sulu, while the two-middle-aged children are employees in Zamboanga City. Finding that the deceased left no will, the
youngest son wanted to file intestate proceedings before the Regional Trial Court of Cebu City. Two other siblings objected, arguing
that it should be in Jolo before the Shari’ah court since his lands are in Sulu. But Adil’s sisters in Pakistan want the proceedings held
in Lahore before Pakistani Court.

a) Which court has jurisdiction and is the proper venue for the intestate proceedings? (5%)
b) What law shall govern succession to his estate? (5%)

Answer.

a) The proper venue is Cebu City with respect to properties in the Philippines. Under Art. 16 of the New Civil Code, the properties of
Adil that are located in the Philippines shall be governed by Philippine laws. Under Philippine laws, the venue for intestate
proceedings is the place of domicile of the decedent at the time of his death. Since Adil last resided in Cebu City, then the intestate
proceeding should be filed in Cebu City.

b) Pakistani law apply with respect to succession. Article 16 of the New Civil Code provides that the national law of the decedent
governs intestate succession with respect to the order of succession and the amount of successional rights.
Quiz No. 3 – Effect and Application of Laws (Art. 1 – 18, NCC)

I
After a storm causing destruction in four Central Luzon provinces, the executive and legislative branches of the government agreed
to enact a special law appropriating P1 billion for purposes of rehabilitation for the provinces. In view of the urgent nature of the
legislative enactment, it is provided it its effectivity clause that it shall take effect upon approval and after completion of publication
in the Official Gazette and a newspaper of general circulation in the Philippines. The law was passed by Congress on July 1, 1990,
signed into law by the President on July 3, 1990, and published in such newspaper of general circulation on July 7, 1990 and in the
Official Gazette on July 10, 1990.
a) As to the publication of said legislative enactment, is there sufficient observance or compliance with the requirements for a valid
publication?(4%)
b) When did the law take effect? (3%)
c) Can the executive branch start releasing and disbursing funds appropriated by the said law the day following its approval? (3%)

Answer.
a) Yes, there is sufficient compliance. The law itself prescribes the requisites of publication for its effectivity, and all requisites have
been complied with. (Art. 2, NCC)
b) The law takes effect upon compliance with all the conditions for effectivity, and the last condition was complied with on July 10,
1990. Hence, the law became effective on that date.
c) No. It was not yet effective when it was approved by Congress on July 1, 1990 and approved by the President on July 3, 1990. The
other requisites for its effectivity were not yet complete at that time.

II
X and Y, Filipino couple married in the Philippines, transferred their residence to Reno, Nevada, and resided bona fide there for ten
years. While there, they obtained an absolute divorce, which is valid by the laws of Reno, Nevada. Subsequently, they returned to
the Philippines. May the absolute divorce be recognized in the Philippines? (10%)

Answer.
No. The absolute divorce cannot be considered as valid in the Philippines for the following reasons:
1) Absolute divorce is not recognized in the Philippines. According to Art. 15 of the Civil Code, laws relating to family rights and
duties, or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living
abroad.
2) Well-settled is the rule in this jurisdiction that absolute divorce is contrary to public policy. Pursuant to the third paragraph of Art.
17 of the Civil Code, this declaration of public policy cannot be rendered nugatory by the decree of absolute divorce obtained by X
and Y in Reno, Nevada.

III
A law was passed providing for its immediate effectivity. Does this mean that its immediate effectivity provision would dispense with
the publication requirement? Why?

No. In the case of Tañada vs. Tuvera, 136 SCRA 27, the SC said that an immediate effectivity clause does not preclude the
requirement of publication since the clear object of the law is to give the general public adequate notice of the various laws which
are to regulate their conduct and actions as citizens. Without such notice and publication, there would be no cause for the
application of the maxim “ignorantia legis non excusat” It would be the height of injustice to punish or otherwise burden a citizen for
the transgression of a law which he had no notice of.

IV
Gold was a citizen of State X whose law an illegitimate child is not an intestate heir. Gold died in the Philippines without a will,
leaving considerable properties in Manila. Can Octavio, an illegitimate son of Gold by a Filipino woman, legally claim inheritance by
invoking the successional rights of an illegitimate children under Philippine law? (10%)

Answer.
No. Octavio cannot legally claim inheritance by invoking the successional rights of an illegitimate children under Philippine law.
Under our Civil Code, there are four aspects of succession which are governed by the national law of the person whose succession is
under consideration. They are: (a) the order of succession; (b) the amount of successional rights; (c) the intrinsic validity of
testamentary provisions; and the capacity to succeed. (Art. 16, par. 2, 1039, CC). Whether we look at the instant case from the
viewpoint of the order of intestate succession (Art. 16, par. 2, CC) or from the viewpoint of capacity to succeed (Art. 1039, CC), it is
clear that it will be Gold’s internal or national law that will govern, and not Philippine law. Since under his national law, an
illegitimate child is not an intestate heir, consequently, Octavio, who is an illegitimate child, cannot inherit from him.

V
Boni and Anne, who are both Filipino citizens, met while working overseas. They became sweethearts and got engaged to be
married on New Year’s Eve aboard a cruise ship in the Caribbean. They took the proper license to marry in New York City, where
there is a Filipino consulate. But as planned, the wedding ceremony was officiated by the captain of the Norwegian-registered vessel
in a private suite among selected friends. Back in Manila, Anne discovered that Boni had been married in Bacolod City five years
earlier, but divorced in Oslo only last year. His wife was also a Filipina but now based in Sweden. Boni himself is a resident of Norway
where he and Anne plan to live permanently. Was Boni capacitated to marry Anne? (10%)

Answer.
No. Since Boni is a Filipino citizen, his legal capacity is governed by Philippine law. Article 15 of the New Civil Code provides that laws
relating to family rights and duties or to the status, condition and legal capacity of persons are binding upon citizens of the
Philippines even though they are living abroad. Boni is still married under Philippine laws. The divorce that he and his first wife
obtain is not recognized in the Philippines because both of them are Filipinos.

VI
Mr. A, a Filipino, executed a will in Kuwait while there as a contract worker. Assume that under the laws of Kuwait, it is enough that
the testator affix his signature in the presence of two witnesses and that the will need not be acknowledged before a notary public.
May the will be probated in the Philippines? (10%)
Answer.
Yes, the will may be probated in the Philippines. Article 17 of the New Civil Code provides that forms and solemnities of wills shall be
governed by the laws of the country in which they are executed. Hence, the formalities of the will are valid even if Philippine laws
are not complied with so long as the will complies with the formalities of a will mandated under the laws of Kuwait.
VII
The plaintiffs bought airline tickets in the Philippines from the defendant. All flights had been confirmed by the defendant airline.
The tickets were to be used in the USA. But when they used the same, they were not allowed to board the plane as they had no
designated seat. They were asked to go back to the check-in counter and were informed that there was overbooking and told to
wait. They were left behind. In their complaint, they alleged that they were treated with harsh language, and prayed for moral
damages. The RTC dismissed the case but the CA reversed and awarded damages, moral and exemplary damages, but applied the
laws of USA. Is US law applicable in this action for damages? Explain. (10%)

Answer:
No, because Philippine law should apply. Although the contract of carriage was to be performed in the USA, the tickets were
purchased, through defendant’s agent in Manila. It is true that tickets were “rewritten” in Washington, D.C. However, such fact did
not change the nature of the original contract of carriage entered into by the parties in Manila.
The doctrine of lex loci contractus applies in this case. According to this doctrine, as a general rule, the law of the place where the
contract is made or entered into governs with respect to its nature and validity, obligation and interpretation. This has been said to
be the rule even though the place where the contract was made is different from the place where it is to be performed, and
particularly so, if the place of the making and the place of performance are the same. Hence, the court should apply the law of the
place where the airline ticket was issued, when the passengers are residents and nationals of the forum and the ticket is issued in
such State by the defendant airline. (United Airlines, Inc. vs. CA, et. al., G.R. No. 124110, April 20, 2001; Zalamea vs. CA, 278 SCRA
23).

VIII
While in Afghanistan, a Japanese by the name of Sato sold to Ramoncito, a Filipino, a parcel of land situated in the Philippines which
Sato inherited from his Filipino mother.
a) What law governs the formality in the execution of the contract of sale? (4%)
b) What law governs the capacity of the Japanese to sell the land? (3%)
c) What law governs the capacity of Ramoncito, the Filipino? (3%)
Answer.
a) Philippine laws apply. Article 16 of the New Civil Code provides that real properties are subject to the laws of the country where
the same is situated – Lex Rei Sitae. Although the contract was entered into in Afghanistan, it is submitted that Lex Rei Sitae still
applies and prevails over Lex Loci Celebracionis.
b) The laws of Japan govern the capacity of Mr. Sato. The legal capacity of a person is governed by the personal law of the same
person. (Art. 15, NCC) – applying the doctrine of processual presumption.
c) The laws of the Philippines govern the capacity of Ramoncito because he is a Filipino. Article 15 of the New Civil Code provides
that laws relating to legal capacity of persons are binding upon citizens of the Philippines even though they are living abroad.

IX
Are judicial decisions independent sources of laws? Why? (10%)
No. Judicial decisions applying and interpreting laws or the Constitution shall form part of the legal system of the Philippines (Art. 8,
NCC)
They merely establish the contemporaneous legislative intent that the construed laws purport to carry into effect, forming part of
the laws as of the time of their enactment. (Floresca vs. Philex Mining, L-30642, June 30, 1985).
The decisions referred to are decisions of the Supreme Court.

X
An American citizen, is residing in the Philippines. He committed the crime of murder. Sued for the same, he interposed the defense
that as an American citizen, he cannot be bound by Philippine law. Is his contention correct? Why? (10%)

No. Penal laws and those of public safety and security shall be binding upon those who live and sojourn in the Philippine territory,
subject to the generally accepted principles of international law and treaty stipulations. (Art. 14, NCC)
ANSWERS to Quiz No. 4 – Human Relations (Art. 19 – 22, NCC)
I
On October 30, 1990, So Un Chua (Chua), was admitted at Manila Doctor’s Hospital for hypertension and diabetes. While she was
confined, Judith Chua, her daughter, had been likewise confined for injuries suffered in a vehicular accident. Partial payments of the
hospital bills were made, totaling P435,800.00. After the discharge of Judith Chua, So Un Chua remained in confinement and the
hospital bills for both patients accumulated. The hospital pressured Chua to settle the unpaid bills; otherwise, it will cut off the
telephone line in her room and remove the air-conditioning unit, television set, and refrigerator which it did for failure of Chua to pay
the hospital bills. Is Chua entitled to damages? (10%)

Answer: Manila Doctor’s Hospital vs. So Un Chua, G.R. No. 150355, July 31, 2006

No. The principal question is whether the actuations of the hospital amount to actionable wrongs. Indeed the operation of private pay
hospitals and medical clinics is impressed with public interest and imbued with a heavy social responsibility. But the hospital is also a
business, and, as a business, it has a right to institute all measures of efficiency commensurate to the ends for which it is designed,
especially to ensure its economic viability and survival.
In the institution of cost-cutting measures, the hospital has a right to reduce the facilities and services that are deemed to be non-
essential, such that their reduction or removal would not be detrimental to the medical condition of the patient. For the moment, the
question to be considered is whether the subject facilities, the air-conditioner, telephone, television, and refrigerator, are indeed non-
essential and the removal of which would cause the adverse health effects and emotional trauma to the patient.
The Court finds that the facilities in question are non-essential for the care of respondent Chua and, hence, they may be lessened or
removed by the petitioner for the sake of economic necessity and survival. Thus, the actuations of the hospital do not amount to
actionable wrong.

II
Spouses Johnson and Evangeline Sy secured a loan from Land Bank in the amount of PhP 16 million. Subsequently, however,
Spouses Sy found that they could no longer pay their loan. They executed a Deed of Sale with Assumption of Mortgage to Angelina
Gloria Ong married to Alfredo Ong wherein the latter went to Land Bank to inform it about the sale and assumption of mortgage. He
was told that there was nothing wrong with the agreement with Spouses Sy. He was also told that he should pay part of the principal
which was computed at PhP 750,000. Two weeks later, Alfredo issued a check for PhP 750,000. Alfredo later found out that his
application for assumption of mortgage was not approved by Land Bank. Alfredo initiated an action for recovery of sum of money
with damages against Land Bank because it did not return Alfredo’s payment. It was already applied to the principal of the loan,
accrued interest receivable, interests, penalties, and accounts receivable. Is Alfredo entitled for the return of PhP 750,000.00? If so, is
accion in rem verso applicable or solutio indebiti? (10%)

Answer: Land Bank of the Philippines vs. Alfredo Ong, G.R. No. 190755, November 24, 2010

Yes. Land Bank is still liable for the return of the PhP 750,000 based on the principle of unjust enrichment. Unjust enrichment exists
"when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the
fundamental principles of justice, equity and good conscience." There is unjust enrichment under Art. 22 of the Civil Code when (1) a
person is unjustly benefited, and (2) such benefit is derived at the expense of or with damages to another.

Additionally, unjust enrichment has been applied to actions called accion in rem verso. In order that the accion in rem verso may
prosper, the following conditions must concur: (1) that the defendant has been enriched; (2) that the plaintiff has suffered a loss; (3)
that the enrichment of the defendant is without just or legal ground; and (4) that the plaintiff has no other action based on contract,
quasi-contract, crime, or quasi-delict. The principle of unjust enrichment essentially contemplates payment when there is no duty to
pay, and the person who receives the payment has no right to receive it. The principle applies to the parties in the instant case, as,
Alfredo, having been deemed disqualified from assuming the loan, had no duty to pay petitioner bank and the latter had no right to
receive it.

Moreover, the Civil Code likewise requires under Art. 19 that "[e]very 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." Land Bank, however, did not
even bother to inform Alfredo that it was no longer approving his assumption of the Spouses Sy’s mortgage. Yet it acknowledged his
interest in the loan when the branch head of the bank wrote to tell him that his daughter’s loan had not been paid.22 Land Bank made
Alfredo believe that with the payment of PhP 750,000, he would be able to assume the mortgage of the Spouses Sy. The act of
receiving payment without returning it when demanded is contrary to the adage of giving someone what is due to him. The outcome of
the application would have been different had Land Bank first conducted the credit investigation before accepting Alfredo’s payment.
He would have been notified that his assumption of mortgage had been disapproved; and he would not have taken the futile action of
paying PhP 750,000. The procedure Land Bank took in acting on Alfredo’s application cannot be said to have been fair and proper.
Solution indebiti is provided in Art. 2154 of the Civil Code as follows: “If something is received when there is no right to demand it,
and it was unduly delivered through mistake, the obligation to return it arises.” Mistake is an essential element in solution indebiti but
it is not necessary in the accion in rem verso.

III
The defendant, as general manager, entered into various contracts without prior authority of the board of directors. However, he later
presented the contracts to the board for ratification. Under the company’s corporate by laws, prior approval is required. The board
ratified the contracts. After defendant’s death, an action was brought against defendant’s heirs to recover losses in the transactions.
Can damages be recovered? (10%)

Answer. The Board of Liquidators vs. Heirs of Maximo Kalaw, et. al., G.R. No. L-18805, August 14, 1967

No. Damages cannot be recovered, for Kalaw and the Board did not act in bad faith. Several reasons may be given:
1. While it is true that the NACOCO by-laws specifically provided for prior approval, still a general manager, by the very nature of his
functions should be allowed greater leeway. A rule that has gained acceptance throughout the years is that a corporate general
manager may do necessary and appropriate acts without special authority from the Board. This is specially true in copra trading –
where “future sales” or “forward sales” of still unproduced copra are needed to facilitate sales turn-overs. To call the Board to a
formal meeting is difficult when time is essential.
2. Many times in the past, Kalaw had done the same (without prior Board approval); profits were then made; instead of criticism,
Kalaw had received a bonus for “signal achievement.”
3. Even assuming need of prior authority, it must be remembered that RATIFICATION retroacts to the time of the act or contract
ratified, and is therefore equivalent to original authority.
4. Bad faith does not necessarily connote bad judgment or negligence; it imparts a dishonest purpose or some moral obliquity and
conscious doing of wrong. None of these is present here.

IV
By virtue of its merger with A.G. Spalding Bros., Inc., QUESTOR, a US-based corporation, became the owner of the trademark
“spalding.” Its exclusive distributor in the Philippines is Pro Line Sports Center, Inc. (Pro Line). Pro Line filed a complaint with the
NBI regarding the alleged manufacturer of fake “spalding” balls by UNIVERSAL. When the NBI conducted a search on the premises
of UNIVERSAL, some 1,200 basketballs and volleyballs marked “spalding” were found in the premises of UNIVERSAL. Three days
after, on motion of the NBI, the court ordered to seal and padlock the instruments at UNIVERSAL’s factory. Pro Line and QUESTOR
filed a criminal complaint for unfair competition against Monico Sehwani, the President of UNIVERSAL. The criminal complaint
against Sehwani was eventually dismissed. Upon dismissal of the criminal case, UNIVERSAL and Sehwani filed a civil case for
damages against Pro Line and QUESTOR for allegedly filing an unfounded suit. Will the civil case against Pro Line and QUESTOR
prosper? (10%)

Answer: Pro Line Sports Center, Inc. vs. Court of Appeals, 281 SCRA 162 (1997)

No. Pro Line and QUESTOR could not have been moved by legal malice in instituting the criminal complaint for unfair competition
which led to the filing of the Information against Sehwani. Said the Court “We are more disposed, under the circumstances, to hold
that PRO LINE as the authorized agent of QUESTOR exercised sound judgment in taking the necessary legal steps to safeguard the
interest of its principal with respect to the trademark in question. If the process resulted in the closure and padlocking of
UNIVERSAL’s factory and the cessation of its business operations, these were unavoidable consequences of petitioner’s valid and
lawful exercise of their right. One who makes use of his own right does no injury. Qui jure suo utitur nullum damnum facit. If damage
results from person’s exercising his legal rights, it is damnum absque injuria.”

V
A is the owner of an apartment which is being leased to B who has not been paying his rentals for the last ten months. A, while B was
away, entered into the premises, brought out the things belonging to B and padlocked the premises preventing B from entering into it.
B sued for damages. A interposed the defense that he was just exercising his rights as owner of the premises. Decide.

Answer: Globe Mackay Cable and Radio Corp. vs CA, Aug. 25, 1989; Albenson Ent. Corp., et. al. vs. CA, G.R. No. 88694, Jan. 11,
1993

A is liable for damages. While it is true that he was just exercising his rights, it is equally true that the law imposes upon him certain
limitations in the exercise of the same. Under the law, every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith. (Art. 19, NCC). In entering into the premises and
bringing out all the things of B as well as padlocking the premises, A did not act with justice; instead he acted in bad faith. This is a
clear case of abuse of right for which A can be held liable for damages.

VI
The plaintiff owns a parcel of land with an apartment erected thereon situated at the interior of a public street. As an access to the
public street from plaintiff’s property, there are two possible passageways. When the defendant constructed a fence on his property
that extended in such a way that the entire first passageway was enclosed, the tenants of said apartment vacated the area. The plaintiff
filed a civil case for the grant of an easement of right of way against the defendant with damages for the losses in the form of
unrealized rentals when the tenants vacated the leased premises by reason of the closure of the passageway. The lower court granted
the easement with indemnity given to defendant. The plaintiff appealed for failure of the lower court to grant him damages. The Court
of Appeals grants the plaintiff damages. Is the CA correct?

Answer: Custodio vs. CA, G.R. No. 116100, February 9, 1996

No. Art. 21, NCC provides that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage. In order that the principle of abuse of right provided in Article 21
of the Civil Code can be applied, it is essential that the following requisites concur: (1) The defendant should have acted in a manner
that is contrary to morals, good customs or public policy; (2) The acts should be willful; and (3) There was damage or injury to the
plaintiff. The mere fact that the plaintiff suffered losses does not give rise to a right to recover damages. An act or omission which the
law does not deem an injury, the damage is regarded as damnum absque injuria.

In the case at bar, although there was damage, there was no legal injury. The act of the defendant in constructing a fence within his lot
is a valid exercise of their right as owner, hence not contrary to morals, good customs or public policy.

Additional reasoning by the Supreme Court in Custodio vs. CA:


At the time of the construction of the fence, the lot was not subject to any servitude. It was only that decision which gave private respondents the right to use the said passageway after payment
of the compensation and imposed a corresponding duty on petitioners not to interfere in the exercise of said right.
As a general rule, therefore, there is no cause of action for acts done by one person upon his own property in a lawful and proper manner, although such acts incidentally cause damage or an
unavoidable loss to another, as such damage or loss is damnum absque injuria.[18] When the owner of property makes use thereof in the general and ordinary manner in which the property is
used, such as fencing or enclosing the same as in this case, nobody can complain of having been injured, because the inconvenience arising from said use can be considered as a mere
consequence of community life.[19]
The proper exercise of a lawful right cannot constitute a legal wrong for which an action will lie,[20] although the act may result in damage to another, for no legal right has been invaded[21]
One may use any lawful means to accomplish a lawful purpose and though the means adopted may cause damage to another, no cause of action arises in the latters favor. Any injury or damage
occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an individual resulting from action reasonably calculated to achieve a lawful end by lawful
means.[22]

VII
In the afternoon of September 8, 1973, X invited his former girlfriend Y for a merienda while on her way to school; but instead of
having merienda at the Aristocrat Restaurant, she was brought to a motel where she was raped. Thereafter, he brought her to his
grandmother’s house and they lived together. Later, his father went to see them and assured Y that his son would marry her. In fact,
they had applied for a marriage license; but later on, he left without a word and for no reason at all disappeared. Hence, Y went back
to her parents and they found out that he unilaterally withdrew their application for a marriage license. The criminal complaint for rape
was dismissed by the Office of the City Fiscal of Pasay City. She filed a suit for damages founded on breach of promise to marry. Will
the action prosper? Why?

Answer: Bunag, Jr. vs. CA, et. al., G.R. No. 101749, July 10, 1992; Baksh vs. CA, et. al., G.R. No. 97336, February 19, 1993.

Yes, because any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for moral damages. (Art. 21, NCC). Mr. X cannot escape criminal liability by promising to marry
her, only to renege on his promise after cohabiting with her for 21 days. There are other reprehensible acts which X did, like
practically detaining Y after the alleged rape, leaving her without any justifiable reason, withdrawing the application for marriage
license, acts which can make him liable for damages.

VIII
Amelita met Ivan at Tony’s Restaurant where she worked as a waitress. The day following their first meeting, Ivan invited Amelia to
dine with him at Hotel Enrico where he was billeted and while dining, Ivan professed his love and courted Amelita. In that same
evening, Ivan brought Amelita inside his hotel room and through promise of marriage succeeded in having sexual intercourse with the
latter. After the sexual act, Ivan confessed to Amelita that he was a married man. They repeated their sexual contacts in the months of
September and November 1974, as a result of which Amelita got pregnant. The latter’s plea for help and support fell on deaf ears.
Amelita thus filed an action for acknowledgment, support and damages against Ivan. Will the action prosper? (10%)

Answer. Constantino vs. Mendez, 209 SCRA 18 (1992)

No. Mere sexual intercourse is not by itself a basis for recovery. Damages could only be awarded if sexual intercourse is not a product
of voluntariness and mutual desire. At the time she met Ivan at Tony’s Restaurant, Amelita was already 28 years old and she admitted
that she was attracted to Ivan. Her attraction to Ivan is the reason why she surrendered her womanhood. Had she been induced or
deceived because of a promise of marriage, she could have immediately severed her relation with Ivan when she was informed after
their first sexual contact sometime in August 1974, that he was a married man. Her declaration that in the months of September,
October, and November 1974, they repeated their sexual intercourse only dictates that passion and not the alleged promise of marriage
was the moving force that made her submit herself to Ivan.

IX
V and W, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 2, V
left a note for his bride-to-be postponing the wedding on the ground that his mother was opposed to the wedding. Thereafter, he was
not heard of again. Subsequently, W brought an action against V for damages. Will the action prosper?

Answer: Wassmer vs. Velez, 12 SCRA 648


Yes, the action will prosper. Ordinarily, a mere breach of promise to marry is not an actionable wrong EXCEPT WHEN ACTUAL
EXPENSES ARE INCURRED. But to formally set a wedding and go through all the necessary preparations and publicity, only to walk out of it when the matrimony is about to
be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs, for which the erring promissor must be held answerable in damages in accordance with Article 21
of the Civil Code.
When breach of promise to marry is actionable under Article 21 of the Civil Code, such as in the instant case, moral damages may be awarded under Article 2219 (10) of the said Code.
Exemplary damages maybe awarded under Art. 2232 of the said Code. Since exemplary damages maybe awarded, attorney’s fees may also be awarded under Art. 2208 of said Code.

X
X had been courting Y since December 1957. They were both of adult age. In consideration of X’s promise of marriage, Y consented
to X’s pleas for carnal knowledge which was done regularly, until Y conceived a child. She resigned from her job due to her
condition. Due to X’s refusal to marry her, as promised, she suffered mental anguish, besmirch reputation, wounded feelings, moral
shock, and social humiliation. An action for moral damages was filed. Decide.

Answer: Tanjanco vs. CA, 18 SCRA 994

The woman, Y, is not entitled to moral damages. The Supreme Court concluded that no case is made under Article 21 of the Civil
Code, and no other cause of action being alleged. The act of having committed repeated acts of intercourse is incompatible with the
idea of seduction. There was voluntariness and mutual passion.
Answer Key to Quiz No. 5.

I
Juana married Pedro in 1947. Is her capacity to execute acts and contracts governed by the new Civil Code?

Answer. Bar Examination Problem


Yes. Article 2259 of the New Civil Code provides, “The capacity of a married woman to execute acts and contracts is governed by
this Code, even if her marriage was celebrated under the former laws.” (Take Note: your answer may be correct but if you do not
provide the law, your answer is wrong because you have no legal basis.)

II
One of the convicted defendants in a murder case died while the case was on appeal before the Supreme Court. Will his case be
dismissed?

Answer: People vs. Tirol and Baldesco, G.R. No. L-30538, January 31, 1981
His death extinguished his criminal liability, but the proceedings should continue to determine his civil liability.

III
Juana gave birth to a child who died 10 hours after complete delivery. Did the child acquire personality?

Answer.
Yes. The child acquired a personality, unless it had an intra-uterine life of less than seven months. According to the Civil Code, “for
civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if
the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its
complete delivery from the maternal womb.” (Art. 41, NCC)

IV
At age 18, Marian found out that she was pregnant. She insured her own life and named her unborn child as her sole beneficiary.
When she was already due to give birth, she and her boyfriend Pietro, the father of her unborn child, were kidnapped in a resort in
Bataan where they were vacationing. The military gave chase and after one week, they were found in an abandoned hut in Cavite.
Marian and Pietro were hacked with bolos. Marian and the baby delivered were both found dead, with the baby's umbilical cord
already cut. Pietro survived. Can Marian's baby be the beneficiary of the insurance taken on the life of the mother? (10%)

Answer: Bar Examination Problem (2008)

Yes, the baby can be the beneficiary of the life insurance of Marian. Art. 40 NCC provides that "birth determines personality; but the
conceived child shall be considered born for all purposes that are favorable to it, provided that it be born later with the conditions
specified in Art. 41. Article 41 states that "for civil purposes, the fetus shall be considered born if it is alive at the time it is completely
delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it
dies within twenty-four (24) hours after its complete delivery from the maternal womb. The act of naming the unborn child as sole
beneficiary in the insurance is favorable to the conceived child and therefore the fetus acquires presumptive or provisional personality.
However, said presumptive personality only becomes conclusive if the child is born alive. The child need not survive for twenty-four
(24) hours as required under Art. 41 of the Code because "Marian was already due to give birth," indicating that the child was more
than seven months old.

V
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. (10%)

Answer: Bar Examination Problem (2012)

Yes, Ricky is entitled to recover the P1,000,000.00. The NCC considers a fetus 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. 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.

VI
W, pregnant wife of M, went to A’s medical clinic for abortion without the knowledge of her husband. When the latter learned of the
abortion, he brought an action against A basing his claim upon the provision of Art. 2206 of the Civil Code, which enumerates the
damages recoverable in case of death caused by a crime or quai-delict. Will the action prosper? Reasons. (10%)

Answer: Geluz vs. Court of Appeals, 2 SCRA 801

The action will not prosper. Art. 2206 of the Civil Code refers to damages recoverable in case of death caused by a crime or a quasi-
delict. It cannot, therefore, be applied to the case at bar. The reason is evident. Only one with juridical personality can die. Here the
unborn child never died because it never acquired a juridical personality. Art. 40 of the Civil Code expressly limits the provisional
personality of a conceived child by imposing the condition that the child should be subsequently born alive. In the instant case, the
child was not alive when separated from its mother’s womb.
VII
A is the son of X and Y. X executed a will disposing of all his estate to Y, without instituting A, contending that he has the right to
dispose of his estate. Is X correct? (10%)

Answer.
No, because while X may have his capacity to act, yet his capacity to act is limited or modified because of family relations. He cannot
deprive his son, A, of his legitime except if there is/are legal, valid, and existing grounds to do so.

VIII
Hortillano, an employee of petitioner Continental Steel Manufacturing Corporation (Continental Steel) filed on 9 January 2006, a
claim for Paternity Leave, Bereavement Leave and Death and Accident Insurance for dependent, pursuant to the Collective Bargaining
Agreement (CBA) concluded between Continental and the Union. The claim was based on the death of Hortillano’s unborn child.
Hortillano’s wife, Marife V. Hortillano, had a premature delivery on 5 January 2006 while she was in the 38thweek of pregnancy.
According to the Certificate of Fetal Death dated 7 January 2006, the female fetus died during labor due to fetal Anoxia secondary to
uteroplacental insufficiency. But Continental Steel denied Hortillano’s claim for bereavement leave and other death benefits,
consisting of the death and accident insurance. It posited that the express provision of the CBA did not contemplate the death of an
unborn child, a fetus, without legal personality. Is the contention of Continental Steel correct?

Answer: Continental Steel Manufacturing Corporation vs. Montaño, et. al., G.R. No. 182836
October 13, 2009

First, the issue of civil personality is not relevant herein. Articles 40, 41 and 42 of the Civil Code on natural persons, must be applied
in relation to Article 37 of the same Code, the very first of the general provisions on civil personality, which reads: Art. 37. Juridical
capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost. We need not establish civil personality of
the unborn child herein since his/her juridical capacity and capacity to act as a person are not in issue. It is not a question before us
whether the unborn child acquired any rights or incurred any obligations prior to his/her death that were passed on to or assumed by
the child’s parents. The rights to bereavement leave and other death benefits in the instant case pertain directly to the parents of the
unborn child upon the latter’s death.

Second, Sections 40, 41 and 42 of the Civil Code do not provide at all a definition of death. Moreover, while the Civil Code expressly
provides that civil personality may be extinguished by death, it does not explicitly state that only those who have acquired juridical
personality could die.

Third, death has been defined as the cessation of life. Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb already has life. No less than the Constitution recognizes the
life of the unborn from conception, that the State must protect equally with the life of the mother. If the unborn already has life, then
the cessation thereof even prior to the child being delivered, qualifies as death. Even an unborn child is a dependent of its parents.
Hortillano’s child could not have reached 38-39 weeks of its gestational life without depending upon its mother, Hortillano’s wife, for
sustenance.

IX
Appellant, Carmen Quimiguing (Carmen), assisted by her parents, sued Felix Icao (Felix), who although married, succeeded in having
carnal intercourse with plaintiff several times by force and intimidation, and without her consent; that as a result she became pregnant.
Hence, she claimed support. At the time of filing the complaint, Carmen is still pregnant. Felix moved to dismiss for lack of cause of
action since the complaint did not allege that the child had been born; and after hearing arguments, the trial judge sustained
defendant's motion and dismissed the complaint. Thereafter, plaintiff moved to amend the complaint to allege that as a result of the
intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining defendant's objection, ruled that no amendment was
allowable, since the original complaint averred no cause of action. Is the lower court correct? (10%)

Answer: Quimiguing vs. Icao, 34 SCRA 132 (1970)


No. The lower court is not correct. A conceived child, although as yet unborn, is given by law a provisional personality of its own for
all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a
right to support from its progenitors, particularly of the defendant-appellee (whose paternity is deemed admitted for the purpose of the
motion to dismiss), even if the said child is only "en ventre de sa mere;" just as a conceived child, even if as yet unborn, may receive
donations as prescribed by Article 742 of the same Code, and its being ignored by the parent in his testament may result in preterition
of a forced heir that annuls the institution of the testamentary heir, even if such child should be born after the death of the testator
Article 854, Civil Code).

X
Alabang Development Corporation (ADC) is the developer of Alabang Hills Village and still owns parcels of land therein. Sometime
in September 2006, ADC learned that Alabang Hills Village Association, Inc. (AHVAI) started the construction of a multi-purpose
hall and a swimming pool on one of the parcels of land still owned by ADC without the latter’s consent and approval, and that despite
demand, AHVAI did not desist from constructing the said improvements. ADC thus filed a Complaint for Injunction and Damages
against AHVAI and its president. In their Answer, AHVAI claimed that ADC has no legal capacity to sue since its existence as a
registered corporate entity was revoked by the Securities and Exchange Commission (SEC) on May 26, 2003. The instant complaint
was filed only on October 19, 2006. Decide the case as to the legal capacity of ADC to sue? (10%).

Answer: Alabang Development Corporation vs. Alabang Hills Village Association, 724 SCRA 321 (2014)
In the present case, petitioner filed its complaint not only after its corporate existence was terminated but also beyond the three-year
period allowed by Section 122 of the Corporation Code. Thus, it is clear that at the time of the filing of the subject complaint,
petitioner lacks the capacity to sue as a corporation. To allow petitioner to initiate the subject complaint and pursue it until final
judgment, on the ground that such complaint was filed for the sole purpose of liquidating its assets, would be to circumvent the
provisions of Section 122 of the Corporation Code.
Q6

Answers to Quiz No. 6 – Marriage (Art. 1 – 26, FC)

I
A and B, both Filipino citizens are married. While they were abroad, B, the wife, divorced A who later on died. Is she entitled to
inherit from A? Explain. (10%)

Answer: Quita vs. CA, G.R. No. 124862, 22 December 1998, 101 SCAD 892
Yes. Art. 15, NCC (state the law) and Art. 17, par. 3 (state the law) are applicable. A Filipino wife remains the lawful wife of the Filipino husband inspite of
a decree of divorce abroad by the wife. Hence, the wife is entitled to inherit from the husband as the latter’s surviving spouse despite the fact that she was the one who divorced him. However,
if the wife was already a foreigner at the time of divorce, she ceased to be the lawful wife of the Filipino husband and losses her right to inherit from him as his surviving spouse.

II
Pepito was married to Teodolfa. He killed his wife. Twenty months after his wife died, he married Norma without the benefit of a
marriage license. After his death, his children with Teodolfa filed an action to declare his second marriage void for lack of marriage
license. Norma contended that there was no need for a marriage license since they have been living together as husband and wife for at
least five (5) years prior to their marriage. Is the contention correct? Why? (10%)

Answer: Engrace Niñal, et. al. vs. Norma Bayadog, G.R. No. 133778, March 14, 2000

No, because during the time of the cohabitation of Norma and Pepito, the latter had a legal impediment to marry Norma. It is true that
if a man and a woman have been living together as husband and wife without the benefit of a marriage for at least five (5) years, they
are exempted from securing a marriage license to marry. But such law requires that their living together must be characterized by
exclusivity and continuity. It also requires that they must have had no legal impediment to marry one another during the 5-year period
of cohabitation immediately before the day of the marriage, otherwise if the 5-year period is computed without any distinction as to whether they were capacitated or not to marry, the law
would then be sanctioning immorality and encouraging parties to have common-law relationships and placing them on the same footing with those who live faithfully with their spouse. The
cohabitation should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract.
In this case, Pepito had a subsisting marriage at the time he started cohabiting with Norma, hence, he could not have married Norma legally as he had legal impediment to marry her. Thus, the
marriage is void for lack of marriage license.

III
Paul, a 17-year old Filipino and a permanent resident in the United States, married Jean, a 16-year old American in Las Vegas,
Nevada. The parents of both gave their consent to the marriage. The marriage is valid in Nevada. Is it also valid in the Philippines?
(10%)

Answer: Civil Law Reviewer by Jurado, p. 64; 1989 Bar Exam Problem

No, the marriage is not valid. Art. 26, par. 1, Family Code provides … Under the Family Code, the law requires that the contracting
parties are at least eighteen (18) years of age. However, if the marriage took place before the effectivity of the Family Code, the
marriage will be valid since under the provisions of the Civil Code, a marriage valid in the place of celebration is valid in the
Philippines except bigamous, polygamous, and incestuous marriages as determined by Philippine law. The minimum age under the old
law is sixteen (16) for the male and fourteen (14) for the female.

IV
Mayor Wilfredo Parado of Dingras, Ilocos Norte was requested by A and B of Laoag City, Ilocos Norte to solemnized their marriage
in Laoag City. Is the marriage valid? Why? (10%)

Answer: Navarro vs. Judge Domagtoy, A.M. No. MTJ-96-1088, July 19, 1996, 72 SCAD 328

Yes, VALID. In the case of Navarro vs. Judge Domagtoy, A.M. No. MTJ-96-1088, July 19, 1996, 72 SCAD 328, where a judge
solemnized a marriage in a municipality where he is not a municipal judge, it was said to be valid because the requirement of authority
to solemnized marriage is only a formal requirement. If there is any defect in such requirement, the same would not make the marriage
void, but merely subjects the officer to criminal, civil or administrative responsibility. (Art. 4, FC). In this case, the judge was fined.

V
Robert and Evelyn, both Filipinos, met in Los Angeles, California. They agreed to get married on June 10, 1989. On June 7, 1989,
Robert flew to New York due to an urgent business matter but intended to return to Los Angeles on June 9, 1989, in time for the
wedding. The business emergency of Robert, however, lasted longer than he expected so that he failed to return to Los Angeles. In
order not to postpone the wedding, Robert immediately called his brother Val who was also residing at Los Angeles to stand as his
proxy at the wedding, which the latter did. Is the marriage of Robert and Evelyn valid in the Philippines? (10%)

Answer: Civil Law Reviewer by Jurado, p. 65; 1989 Bar Exam Problem

Yes. If the marriage was performed in accordance with the laws of California and valid there, then the marriage is likewise valid in the
Philippines. (Art. 26, par. 1, Family Code)

VI
On May 1, 1975, Facundo married Petra, by whom he had a son Sotero. Petra died on July 1, 1996, while Facundo died on January 1,
2002. Before his demise, Facundo had married, on July 1, 2000, Querica. Having lived together as husband and wife since July 1,
1990, Facundo and Querica did not secure a marriage license but executed the requisite affidavit for the purpose. To ensure that his
inheritance rights are not adversely affected by his father’s second marriage, Sotero now brings a suit to seek a declaration of the
nullity of the marriage of Facundo and Querica, grounded on the absence of a valid marriage license. Querica contends that there was
no need for a marriage license in view of her having lived continuously with Facundo for five years before their marriage and that
Sotero has no legal personality to seek a declaration of nullity of the marriage since Facundo is now deceased. Is the marriage of
Facundo and Querica valid, despite the absence of a marriage license? Explain. (10%)
Answer: Civil Law Reviewer by Aquino; 2002 Bar Exam
No. The marriage between Facundo and Querica is void. A marriage license is a formal requisite of marriage without which the
marriage is void. Although there are exceptional cases when marriage license is not required, the present case is not one of them. For
instance, Art. 34 of the Family Code provides that a marriage license is no longer necessary if the man and woman have lived together
as husband and wife for at least five years and without any legal impediment to marry each other during those five years. There was a
legal impediment to the marriage during the cohabitation of Facundo and Querica for six years from 1990 to July 1, 1996 because he
was still married to Petra. On the other hand, cohabitation from July 1, 1996 to July 1, 2000 was less than five years.

VII
Romeo and Juliet, both Filipinos, got married. After a few years, Juliet got word from her mother that she can go to the United States
for naturalization. Juliet promised she will be back the moment she becomes an American. After sometime, Romeo learned from a
friend that Juliet already became a U.S. citizen and even divorced him to marry a wealthy American businessman. Romeo filed a
petition before the Regional Trial Court praying that an order be issued authorizing him to remarry pursuant to Article 26 of the
Family Code. Decide the petition with reasons. (10%)

Answer: 2016 bar exam

If the time of Juliet's acquisition of U.S. citizenship preceded the time when she obtained the divorce decree, then the divorce decree can be given effect in the Philippines, and consequently,
Romeo will be capacitated to remarry under Philippine law. On the other hand, if Juliet obtained the divorce decree before she acquired U.S. citizenship, then the foreign divorce decree cannot
be recognized by Philippine courts. Article 26, paragraph 2 of the Family Code provides that where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. In Republic v. Orbecido (472
SCRA 114 [2005]), the Supreme Court ruled that Article
26, paragraph 2 should be interpreted to include cases involving parties who, at the time of
the celebration of the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign citizen and obtains a
divorce decree. The reckoning point is not their citizenship at the time of celebration of marriage, but their citizenship at the time the
divorce decree is obtained abroad by the alien spouse capacitating him/her to remarry.

ALTERNATIVE ANSWER:
The petition should not be granted. A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such decree is valid according to the national law of the foreigner.
However, the divorce decree and the governing personal law of the alien spouse who obtained the divorce must be proven. Our courts do not take judicial notice of foreign laws and judgments;
hence, like any other evidentiary facts, both the divorce decree and the national law of the alien must be alleged and proven according to our law on evidence (Republic v. Orbecido, 366 SCRA
437 [2001]). In this case, no evidence was adduced to prove the divorce between Romeo and Juliet and the validity of the same under U.S. law.

VIII
The petitioner who is a Filipino is previously married in the Philippines to a Japanese national. Recently, a case for divorce was filed
by the Filipino petitioner in Japan and after due proceedings, a divorce decree was rendered by the Japanese Court. She filed a petition
for cancellation of entry of marriage in the Civil Registry by virtue of a judgment of divorce rendered by a Japanese court. The
respondent objected the petition pursuant to the nationality principle. The respondent said that petitioner’s personal status is subject to
Philippine law which, in turn, prohibits absolute divorce. Hence, the divorce decree which she obtained under Japanese law cannot be
given effect, as she is, without dispute, a national not of Japan, but of the Philippines. If you are the judge, will you grant the petition?
(10%)

Answer: Republic vs. Manalo, G.R. No. 221029, April 24, 2018

Yes, I will grant the petition for cancellation of the marriage in view of the divorce obtained by the Filipino spouse. The dissent is of
the view that, under the nationality principle, Manalo's personal status is subject to Philippine law, which prohibits absolute divorce. Hence, the divorce decree which she obtained under
Japanese law cannot be given effect, as she is, without dispute, a national not of Japan, but of the Philippines. It is said that a contrary ruling will subvert not only the intention of the framers of
the law, but also that of the Filipino people, as expressed in the Constitution. The Court is, therefore, bound to respect the prohibition until the legislature deems it fit to lift the same.
We beg to differ. Paragraph 2 of Article 26 speaks of "a divorce xx x validly obtained abroad by the alien spouse capacitating him or
her to remarry. " Based on a clear and plain reading of the provision, it only requires that there be a divorce validly obtained abroad.
The letter of the law does not demand that the alien spouse should be the one who initiated the proceeding wherein the divorce decree
was granted. It does not distinguish whether the Filipino spouse is the petitioner or the respondent in the foreign divorce proceeding.
The Court is bound by the words of the statute; neither can We put words in the mouths of the lawmakers. "The legislature is presumed to know the meaning of the words, to have used words
advisedly, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure."

IX
Ted, married to Annie, went to Canada to work. Five (5) years later, Ted became a naturalized Canadian citizen. He returned to the Philippines to convince Annie to settle in Canada.
Unfortunately, Ted discovered that Annie and his friend Louie were having an affair. Deeply hurt, Ted returned to Canada and filed a petition for divorce which was granted. In December
2013, Ted decided to marry his childhood friend Corazon in the Philippines. In preparation for the wedding, Ted went to the Local Civil Registry of Quezon City where his marriage contract
with Annie was registered. He asked the Civil Register to annotate the decree of divorce on his marriage contract with Annie. However, he was advised by the National Statistics Office (NSO)
to file a petition for judicial recognition of the decree of divorce in the Philippines.
Is it necessary for Ted to file a petition for judicial recognition of the decree of divorce he obtained in Canada before he can contract a
second marriage in the Philippines? (4%)

Answer: 2014 bar exam

Yes, a divorce decree even if validly obtained abroad cannot have effect in the Philippines unless it is judicially recognized through an
appropriate petition filed before Philippine courts. In Corpuz v. Sto. Tomas, G.R. No. 18657, August 11, 2010, the SC ruled that the foreigner must file a petition under
Rule 108 and prove therein the fact of divorce by presenting an official copy attested by the officer having custody of the original. He must also prove that the court which issued the divorce
has jurisdiction to issue it and the law of the foreign country on divorce. He/She must also prove that the divorce decree capacitates him/her to remarry.

X
Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse, the latter may re-marry by proving only
that the foreign spouse has obtained a divorce against her or him abroad. Is that correct? (10%)

Answer: Garcia v. Recio , 366 SCRA 437 (2001)

No. In Garcia v. Recio , 366 SCRA 437 (2001) , the SC held that for a Filipino spouse to have capacity to contract a subsequent
marriage, it must also be proven that the foreign divorce obtained abroad by the foreigner spouse give such foreigner spouse capacity
to remarry. He/She must also prove the law of the foreign country on divorce.
Below is the Answer Key to Quiz No. 7:

I
Boy is married to Gina. He has a girlfriend in Hongkong named Celly, another Filipina. While Boy was vacationing in Hongkong,
Boy and Celly got married, and under the Hongkong laws, even bigamous marriages are valid provided they are contracted between
foreigners. Is the marriage valid in the Philippines? Why? (10%)

Answer.

No, because it is bigamous. (Art 35[4], FC). Also, Art. 26, par. 1 of the Family Code of the Philippines provides that “All marriages
solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized , and valid there
as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5), and (6), 36, 37 and 38.” While it is
true that the marriage is valid where celebrated, it is void in the Philippines because it is Philippine law that determines the validity of
the marriage of these two Filipinos. This is especially true because laws relating to family rights and duties, or to the status and
condition of Filipino citizens are binding upon them even though living abroad. (Art. 15, NCC).

II
A and B wanted to get married; hence, they went to a minister. After presenting their license, the minister solemnized their marriage.
Later, it was found out by the spouses that the minister failed to renew his authority to solemnize marriage. Is the marriage valid?
Explain.

Answer.

Yes. While it is true that ordinarily, the marriage should be considered as void because of lack of authority of the solemnizing officer
to solemnize the marriage, yet the law declares that kind of marriage valid, provided that either or both parties believed in good faith
that the solemnizing officer had the legal authority to do so. (Art. 35[2], FC).

III
Tingcap and Sorayda are both Muslims. They got married with Judge Guiling as the solemnizing officer. The marriage was
solemnized at the judge’s chambers but in accordance with the guidelines set by the Supreme Court on civil wedding. There was no
marriage license. Is the marriage valid? Why? (10%)

Answer.

No, because the law provides that marriages between Muslims may be solemnized without a marriage license provided they are
solemnized in accordance with their customs, rites and practices. (Art. 33, FC). Since the marriage was solemnized in accordance with
the guidelines set by the Supreme Court on civil wedding, the marriage is void for lack of a marriage license.

IV
Tony, a soldier stationed at a camp in Laoag City has a girlfriend named Amelita. While having military operations in Ilocos Sur and
Abra, Tony contracted H-fever, so he was brought back to Laoag City. After a brief hospitalization, he reported back to work at the
camp in Laoag City. Two days thereafter, he again fell ill, to the point of death; hence, Col. Lalisan, the military commander, was
summoned by Tony and Amelita where they were married without the benefit of a marriage license. Is their marriage valid? Why?
(10%)

Answer.

No, because the marriage was solemnized without a marriage license. A military commander of a unit can solemnize a marriage in
articulo mortis only within the zone of military operation. Since Laoag City is not a part of the zone, the marriage is void.
Furthermore, the marriage was solemnized by a person who was not authorized to solemnize the marriage since the place of
celebration of the marriage was not in a zone of military operation. (Art. 32, FC)

V
In order that a ship captain, airplane pilot or a military commander of a unit may solemnize a marriage, what requisites must concur?
(10%)

Answer: Jurado, p. 70

In order that a ship captain or airplane chief may solemnize a marriage, the following requisites must concur:
1. The marriage must be in articulo mortis; and
2. It must be solemnized while the ship is at sea or the plane is in flight or during stopovers at ports of call. (Art. 31, FC)

In the case of commanding officer of an army unit, it is essential that the following requisites must concur:
1. The marriage must be in articulo mortis;
2. It must be solemnized only in the absence of a chaplain;
3. The military commander must be a commissioned officer; and
4. It must be solemnized within the zone of military operations. (Art. 32, FC)

VI
The Republic ratiocinated that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so
must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law.
Is the Republic correct? State your reasons. (10%)
Answer: Albano, p. 65; Republic vs. Dayot, G.R. No. 175581, March 28, 2008
Similarly, we are not impressed by the ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, so must a marriage
not be invalidated by a fabricated statement that the parties have cohabited for at least five years as required by law. The contrast is flagrant. The former is with reference to an irregularity of
the marriage license, and not to the absence of one. Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the sworn affidavit relating to the period of Jose and
Felisas cohabitation, which would have qualified their marriage as an exception to the requirement for a marriage license ,
cannot be a mere irregularity, for it refers to a
quintessential fact that the law precisely required to be deposed and attested to by the parties under oath. If the essential matter in the
sworn affidavit is a lie, then it is but a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.

VII
As a rule, for a marriage to be valid, there must be a marriage license. Are there exceptions to the rule? Enumerate the exceptions if
there are any. (8%)

Answer: Albano, pp. 62-63


Yes. They are:
a. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a
marriage license and shall remain valid even if the ailing party subsequently survives. (Art. 27, FC)
b. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before
the local civil registrar, the marriage maybe solemnized without the necessity of a marriage license. (Art. 28, FC)
c. Marriage among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of
a marriage license, provided that they are solemnized in accordance with their customs, rites or practices. (Art. 33, FC)
d. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five
(5) years and without any legal impediment to marry each other. (Art. 34, FC)

VIII
Enumerate void marriages under Article 35 of the Family Code? (12%)

Answer: Albano, p. 65-66


The following are void marriages under Article 35 of the Family Code:
1. Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or
both parties believing in good faith that the solemnizing officer had the legal authority to do so;
3. Those solemnized without a license, except those covered by the preceding chapter (Marriages Exempt from the License
Requirement);
4. Those bigamous or polygamous marriages not falling under Article 41;
5. Those contracted through mistake of one contracting party as to the identity of the other; and
6. Those subsequent marriages that are void under Article 53.

IX
In a marriage in articulo mortis, what is the duty of the solemnizing officer? (10%)

Answer: Albano, p. 63
He shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis and that he
took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. (Art. 29, F.C.).
This duty holds true in a case of a marriage contracted without a marriage license where the parties or either of them reside in a place where there is no means of transportation to enable them
to appear before the local civil registrar. (Art. 28, F.C.)

X
A and B were married without a marriage license due to the pronouncement of the latter’s physicians that her illness was incurable and
that she is going to die at any time. When she died one year afterwards, the validity of her marriage was attacked on the ground that
the marriage was not a marriage in articulo mortis because she was able to recover from her illness, and that the person who
solemnized the marriage did not execute an affidavit stating that the marriage was celebrated in articulo mortis. Is the marriage valid?
(10%)

Answer: Jurado, p. 71; Loria vs. Felix, 104 Phil. 1

VALID.The fact that B was able to recover from her illness is not her fault. In order to classify the marriage as a marriage in articulo
mortis, the law does not require that the party who is at the point of death must die immediately after the celebration of the marriage.
All that is necessary is that the parties, including the person solemnizing the marriage must be convinced that there was imminent
danger of death. Under the facts stated in the problem, this circumstance is certainly present. As far as the affidavit is concerned, although it is supposed to be substituted for marriage
license, nevertheless, it must be observed that the execution thereof is a duty that is addressed to the person solemnizing the marriage and not the contracting parties. Failure to execute such
affidavit should not, therefore, affect the validity of the marriage. Besides, the law is explicit with regards to the essential requisites of marriage, and certainly, the execution of such affidavit is
not one of them.
Quiz No. 8 – Marriage (Art. 36, FC)

I
This case was originally commenced by a distraught wife against her uncaring husband for the annulment of the marriage on the ground of psychological incapacity. It is the version of the
plaintiff, that contrary to her expectations, that as newlyweds they were supposed to enjoy making love, or having sexual intercourse, with each other, the defendant just went to bed, slept on
one side thereof, then turned his back and went to sleep . There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights.
They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. She
claims that she did not even see her husband's private parts nor did he see hers. The defendant admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989,
there was no sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual intercourse with his wife, she always avoided him
and whenever he caresses her private parts, she always removed his hands. The defendant claims, that he forced his wife to have sex with him only once but he did not continue because she
was shaking and she did not like it. So he stopped. As the judge in this case, will you grant the annulment of marriage on the ground of psychological incapacity? (10%)

Answer: Chi Ming Tsoi vs. CA, G.R. No. 119190, January 16, 1997

Yes. Evidently, one of the essential marital obligations under the Family Code is "To procreate children based
on the universal principle that procreation of children through sexual cooperation is the basic end of marriage."
Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the
case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity.

The fact remains, however, that there has never been coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically
incapacitated, the question of who refuses to have sex with the other becomes immaterial.

II
A man complained about the sexual infidelity of the wife. Aside from that, he said that during their marriage,
she turned out to be an irresponsible and immature wife and mother. She had extra-marital affairs with several
men; a dentist in the Armed Forces of the Philippines; a Lieutenant in the Presidential Security Command and
later a Jordanian national. Is the sexual infidelity of the woman of the woman considered as a manifestation of
psychological incapacity to warrant declaration of nullity of marriage? Explain. (10%)
Answer: Pesca vs. Pesca, 356 SCRA 425 (2001); Hernandez vs. CA, G.R. No. 26010. December 8, 1999;
Ochosa vs. Alano, et. al., G. R. No. 167459, January 26, 2012)
No. Her sexual infidelity or perversion and abandonment do not by themselves constitute psychological
incapacity within the contemplation of the Family Code. Neither could her emotional immaturity and
irresponsibility be equated with psychological incapacity. (Pesca vs. Pesca, 356 SCRA 425 (2001). It must be
shown that these acts are manifestations of a disordered personality which make her completely unable to
discharge the essential obligations of the marital state under Articles 68 – 71, 220, 221 and 225 of the Family
Code, not merely due to her youth, immaturity (Hernandez vs. CA, G.R. No. 126010. December 8, 1999) or
sexual promiscuity. (Ochosa vs. Alano, et. al., G. R. No. 167459, January 26, 2012).
III
On July 6, 1994, nine years since the de facto separation from his wife, Tyrone filed a petition for declaration of nullity of marriage based on Article 36 of the Family Code. He alleged that
Malyn was psychologically incapacitated to perform and comply with the essential marital obligations at the time of the celebration of their marriage. He further claimed that her psychological
incapacity was manifested by her immaturity and irresponsibility towards Tyrone and their children during their co-habitation, as shown by Malyns following acts: she left the children without
proper care and attention as she played mahjong all day and all night; she left the house to party with male friends and returned in the early hours of the following day; and she committed
adultery on June 9, 1985, which act Tyrone discovered in flagrante delicto. The case reaches the Supreme Court and you are assigned as the ponente assigned to write the deision. Decide.
(10%)

Answer: Valerio Kalaw vs. Ma. Elena Fernandez, G.R. No. 166357, September 19, 2011 & G.R. No. 166357,
January 14, 2015

The frequency of the respondent’s mahjong playing should not have been limited the Court’s determination of
the presence or absence of psychological incapacity. Instead, the determinant should be her obvious failure to
fully appreciate the duties and responsibilities of parenthood at the time she made her marital vows. Had she
fully appreciated such duties and responsibilities, she would have known that bringing along her children of
very tender ages to her mahjong sessions would expose them to a culture of gambling and other vices that
would erode their moral fiber. Nonetheless, the long-term effects of the respondent’s obsessive mahjong playing
surely impacted on her family life, particularly on her very young children.
The fact that the respondent brought her children with her to her mahjong sessions did not only point to her
neglect of parental duties, but also manifested her tendency to expose them to a culture of gambling. Her willfully
exposing her children to the culture of gambling on every occasion of her mahjong sessions was a very grave and serious act of subordinating their needs for parenting
to the gratification of her own personal and escapist desires. She revealed her wanton disregard for her children’s moral and mental development. This disregard
violated her duty as a parent to safeguard and protect her children, hence, she could be adjudged as suffering from psychological incapacity. (Valerio Kalaw vs. Ma.
Elena Fernandez, G.R. No. 166357, January 14, 2015).

IV
Leo married Lina and they begot a son. After the birth of their child, Lina exhibited unusual behavior and
started to neglect her son; she frequently went out with her friends and gambled in casinos. Lina later had extra-
marital affairs with several men and eventually abandoned Leo and their son. Leo was able to talk to
the psychiatrist of Lina who told him that Lina suffers from dementia praecox, a form of psychosis where the
afflicted person is prone to commit homicidal attacks. Leo was once stabbed by Lina but fortunately he only
suffered minor injuries. Will a Petition for Declaration of Nullity of Marriage filed with the court prosper?
Explain. (10%)
SUGGESTED ANSWER: 2016 bar exam; Santos v. CA (240 SCRA 20 [1995]); Marcos v. Marcos (343 SCRA
755 [2000])

No, a Petition for Declaration of Nullity of Marriage under Article 36 of the Family Code will not prosper. Even
if taken as true, the grounds alleged are not sufficient to declare the marriage void under "psychological
incapacity". In Santos v. CA (240 SCRA 20 [1995]), the Supreme Court explained that psychological incapacity
must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The illness must be
shown as downright incapacity or inability to perform one's marital obligations, not a mere refusal, neglect,
difficulty, or much less, ill will.
While Lina was not examined by a physician, the Supreme Court has ruled in Marcos v. Marcos (343 SCRA
755 [2000) that actual medical examination need not be resorted to where the totality of evidence presented is
enough to sustain a finding of psychological incapacity. However, in this case, the pieces of evidence presented are not sufficient to
conclude that indeed
Lina is suffering from psychological incapacity existing already before the marriage, incurable and serious enough to prevent her from performing her essential marital
obligations.

ALTERNATIVE ANSWER:
No, a Petition for Declaration of Nullity of Marriage under Article 36 of the Family Code will not prosper. However, a Petition for Annulment of Marriage under
Article 45 of the Family Code may prosper, on the ground of unsound mind, assuming that Lina's unsound mind existed at the time of the celebration of the marriage.

V
Kardo met Aliana as a young lieutenant and after a whirlwind courtship, they were married. In the early part of his military career, Kardo was assigned
to different places all over the country but Aliana refused to accompany him as she preferred to live in her hometown. They did not live together until
the 12th year of their marriage when Kardo had risen up the ranks and was given his own command. They moved to living quarters in Fort Gregorio.
One day, while Kardo was away on official business, one of his military aides caught Aliana having sex with the corporal assigned as Kardo's driver.
The aide immediately reported the matter to Kardo who rushed home to confront his wife. Aliana readily admitted the affair and Kardo sent her away
in anger. Kardo would later come to know the true extent of Aliana’s unfaithfulness from his aides, his household staff, and former neighbors who
informed him that Aliana has had intimate relations with various men throughout their marriage whenever Kardo was away on assignment.

Kardo filed a petition for declaration of nullity of marriage under Article 36. Based on interviews from Kardo, his aide, and the housekeeper, a
psychologist testified that Aliana's habitual infidelity was due to her affliction with Histrionic Personality Disorder, an illness characterized by
excessive emotionalism and uncontrollable attention-seeking behavior rooted in Aliana's abandonment as a child by her father. Kardo himself, his
aide, and his housekeeper also testified in court. The RTC granted the petition, relying on the liberality espoused by Te v. Te and Azcueta v. Republic.
However, the OSG filed an appeal, arguing that sexual infidelity was only a ground for legal separation and that the RTC failed to abide by the
guidelines laid down in the Molina case. How would you decide the appeal? (10%)

SUGGESTED ANSWER: 2015 bar exam; Dedel v. Dedel, G.R. No. 151867 January 29, 2004; Marcos v. Marcos, 343 SCRA 755; Agraviador v.
Agraviador, G.R. No. 170729, December 8, 2010; Te v. Te, G.R. No. 161793, February 13, 2009; Azcueta v. Republic, G.R. No. 180668, May 26,
2009; Republic vs. Molina, G.R. No. 108763 February 13, 1997

I will resolve the appeal in favor of the Republic. In the case of Dedel v. Dedel, (G.R. No. 151867 January 29,
2004) the Supreme Court refused to declare the marriage of the parties void on the ground of sexual infidelity of
the wife Sharon. In case mentioned, the wife committed infidelity with several men up to the extent of siring two
illegitimate children with a foreigner. The court, however, said that it was not shown that the sexual infidelity
was a product of a disordered personality and that it was rooted in the history of the party alleged to be
psychologically incapacitated. Also, the finding of psychological incapacity cannot be based on the interviews
conducted by the clinical psychologist on the husband or his witnesses and the person alleged to be
psychologically incapacitated must be personally examined to arrive at such declaration. (Marcos v. Marcos, 343
SCRA 755; Agraviador v. Agraviador, G.R. No. 170729- December 8, 2010)

VI
Ariz and Paz were officemates at Perlas ng Silangan Bank (PSB). They fell in love with each other and had a civil and church wedding. Meanwhile,
Paz rapidly climbed the corporate ladder of PSB and eventually became its Vice President, while Ariz remained one of its bank supervisors, although
he was short of 12 units to finish his Masters of Business Administration (MBA) degree.

Ariz became envious of the success of his wife. He started to drink alcohol until he became a drunkard. He preferred to join his "barkadas"; became a
wifebeater; would hurt his children without any reason; and failed to contribute to the needs of the family. Despite rehabilitation and consultation with
a psychiatrist, his ways did not change.

After 19 years of marriage, Paz, a devout Catholic, decided to have their marriage annulled by the church. Through the testimony of Paz and a
psychiatrist, it was found that Ariz was a spoiled brat in his youth and was sometimes involved in brawls. In his teens, he was once referred to a
psychiatrist for t reatment due to his violent tendencies. In due time, the National Appellate Matrimonial Tribunal (NAMT) annulled the union of Ariz
and Paz due to the failure of Ariz to perform and fulfill his duties as a husband and as a father to their children. The NAMT concluded that it is for the
best interest of Paz, Ariz and their children to have the marriage annulled.

In view of the NAMT decision, Paz decided to file a Petition for Declaration of Nullity of Marriage of their civil wedding before the Regional Trial
Court (RTC) of Makati City using the NAMT decision and the same evidence adduced in the church annulment proceedings as basis.

If you are the judge, will you grant the petition? Explain. (10%)
SUGGESTED ANSWER: 2014 bar exam; Marcos v. Marcos G.R. No. 136490- October 19, 2000

If I were the judge, I will not grant the petition. While the decision of the church tribunal annulling the marriage
of the parties may be persuasive, it is not however, binding upon the civil courts. For psychological incapacity to be a
ground for nullity, it must be shown that it was rooted in the history of the party alleged to be suffering from it, must be grave and serious, and incurable
such that it renders the person incapacitated to perform the essential marital obligations due to causes psychological in nature. In the case presented, it
appears that Ariz fulfilled his marital obligations at the beginning and it was only after feeling envious about the success of Paz that he started exhibiting
violent tendencies and refused to comply with marital obligations. Psychological incapacity is not mere refusal but outright incapacity to perform
marital obligations which does not appear to be present in the case of Ariz. (Marcos v. Marcos G.R. No. 136490- October 19, 2000)

VII
You are a Family Court judge and before you is a Petition for the Declaration of Nullity of Marriage (under
Article 36 of the Family Code)filed by Maria against Neil. Maria claims that Neil is psychologically
incapacitated to comply with the essential obligations of marriage because Neil is a drunkard, a womanizer, a
gambler, and a mama's boy- traits that she never knew or saw when Neil was courting her. Although
summoned, Neil did not answer Maria's petition and never appeared in court.

To support her petition, Maria presented three witnesses- herself, Dr. Elsie Chan, and Ambrosia. Dr. Chan testified on the psychological report on
Neil that she prepared. Since Neil never acknowledged nor responded to her invitation for interviews, her report is solely based on her interviews
with Maria and the spouses' minor children. Dr. Chan concluded that Neil is suffering from Narcissistic Personality Disorder, an ailment that she
found to be already present since Neil's early adulthood and one that is grave and incurable. Maria testified on the specific instances when she found
Neil drunk, with another woman, or squandering the family's resources in a casino. Ambrosia, the spouses' current household help, corroborated
Maria's testimony.
On the basis of the evidence presented, will you grant the petition? (8%)

SUGGESTED ANSWER: 2013 bar exam; Republic v. CA and Molina, G.R. No. 108763, Feb 13, 1997; Republic v. CA and Molina, G.R. No.
108763, Feb 13, 1997; Republic v. Melgar, G.R. No. 139676, 2006; Republic v. Tanyag San Jose, G.R. No. 168328, 2007

No. The petition should be denied.

The psychological incapacity under Art. 36 of the Family Code must be characterized by (a) gravity, (b)
juridical antecedence, and (c) incurability. It is not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing
so, due to some physiological (not physical) illness (Republic v. CA and Molina, G.R. No. 108763, Feb 13,
1997).

In this case, the pieces of evidence presented are not sufficient to conclude that indeed Neil is suffering from psychological incapacity [Narcissistic
Personality Disorder] existing already before the marriage, incurable and serious enough to prevent Neil from performing his essential marital
obligations. Dr. Chan’s report contains mere conclusions. Being a drunkard, a womanizer, a gambler and a mama’s boy, merely shows Neil’s failure
to perform his marital obligations. In a number of cases, the Supreme Court did not find the existence of psychological incapacity in cases where the
respondent showed habitual drunkenness (Republic v. Melgar, G.R. No. 139676, 2006), blatant display of infidelity and irresponsibility (Dedel v.
CA, 2004) or being hooked to gambling and drugs (Republic v. Tanyag San Jose, G.R. No. 168328, 2007).

ALTERNATIVE ANSWER:
Yes. The petition should be granted.
The personal medical or psychological examination of respondent is not a requirement for declaration of psychological incapacity. It is the totality of
the evidence presented which shall determine the existence of psychological incapacity (Marcos v. Marcos, G.R. No. 136490, Oct 19, 2000). Dr.
Chan’s report corroborated by Maria’s and Ambrosia’s testimonies, therefore, sufficiently prove Neil’s psychological incapacity to assume his
marital obligations.

VIII
The petitioner filed a petition for declaration of nullity of marriage based allegedly on the psychological
incapacity of the respondent, but the psychologist was not able to personally examine the respondent and the
psychological report was based only on the narration of petitioner. Should the annulment be granted? Explain.
(10%)

SUGGESTED ANSWER: 2012 bar exam;


NO, the annulment cannot be granted solely on the basis of the psychological report. For the report to prove the
psychological incapacity of the respondent, it is required that the psychologist should personally examine the
respondent and the psychological report should be based on the psychologist’s independent assessment of the
facts as to whether or not the respondent is psychologically incapacitated.

Since, the psychologist did not personally examine the respondent, and his report is based solely on the story of the petitioner who has an interest in
the outcome of the petition, the marriage cannot be annulled on the ground of respondent’s psychological incapacity if the said report is the only
evidence of respondent’s psychological incapacity.

IX
On April 15, 1983, Jose, an engineer, and Marina, a nurse, were married to each other in a civil ceremony in
Boac. Marinduque. Six months after their marriage, Jose was employed in an oil refinery in Saudi Arabia for a
period of three years. When he returned to the Philippines, Marina was no longer living in their house, but in
Zamboanga City, working in a hospital. He asked her to come home, but she refused to do so, unless he agreed
not to work overseas anymore because she cannot stand living alone. He could not agree as in fact, he had
signed another three year contract. When he returned in 1989, he could not locate Marina anymore. In 1992,
Jose filed an action served by publication in a newspaper of general circulation. Marina did not file any answer,
a possible collusion between the parties was ruled out by the Public Prosecutor. Trial was conducted and Marina
neither appeared nor presented evidence in her favor. If you were the judge, will you grant the annulment.
Explain.

SUGGESTED ANSWER: 1996 bar exam; In Santos vs. CA (240 SCRA 20)

As judge, I will not grant the annulment. The facts do not show any taint of personality disorder on the part of
the wife Marina so as to lend substance to her husband's averment of psychological incapacity within the
meaning of Art 36 of the Family Code. In Santos vs. CA (240 SCRA 20), this particular ground for nullity of
marriage was held to be limited only to the most serious cases of personality disorders (clearly demonstrative of
utter sensitivity or inability to give meaning and significance to the marriage. Marina's refusal to come home to
her husband unless he agreed not to work overseas, far from being indicative of an insensitivity to the meaning
of marriage, or of a personality disorder, actually shows a sensitive awareness on her part of the marital duty to
live together as husband and wife. Mere refusal to rejoin her husband when he did not accept the condition
imposed by her does not furnish any basis for concluding that she was suffering from psychological incapacity
to discharge the essential marital obligations.
Mere intention to live apart does not fall under Art. 36, FC. Furthermore, there is no proof that the alleged
psychological incapacity existed at the time of the marriage.

X
Gemma filed a petition for the declaration of nullity of her marriage with Arnell on the ground of psychological
incapacity. She alleged that after 2 months of their marriage, Arnell showed signs of disinterest in her, neglected
her and went abroad. He returned to the Philippines after 3 years but did not even get in touch with her. Worse,
they met several times in social functions but he snubbed her. When she got sick, he did not visit her even if he
knew of her confinement in the hospital. Meanwhile, Arnell met an accident which disabled him from reporting
for work and earning a living to support himself. Will Gemma's suit prosper? Explain. (5%)

SUGGESTED ANSWER: 2006 bar exam; Santos v. CA, G.R. No. 112019, January 4, 1995; Ferraris v.
Ferraris, G.R. No. 162368, July 17, 2006; Choa v. Choa, G.R. No. 143376, November 26, 2002; Antonio v.
Reyes, G.R. No. 155800, March 10, 2006; Republic v. Quintero-Hamano, G.R. No. 149498, May 20, 2004

No, Gemma's suit will not prosper. Even if taken as true, the grounds, singly or collectively, do not constitute
"psychological incapacity." In Santos v. CA, G.R. No. 112019, January 4, 1995, the Supreme Court clearly
explained that "psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c)
incurability" (Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006; Choa v. Choa, G.R. No. 143376, November
26, 2002). The illness must be shown as downright incapacity or inability to perform one's marital obligations,
not a mere refusal, neglect, difficulty or much less, ill will. Moreover, as ruled in Republic v. Molina, GR No.
108763, February 13, 1997, it is essential that the husband is incapable of meeting his marital responsibilities
due to psychological and not physical illness (Antonio v. Reyes, G.R. No. 155800, March 10, 2006; Republic
v. Quintero-Hamano, G.R. No. 149498, May 20, 2004). Furthermore, the condition complained of did not exist
at the time of the celebration of marriage.
Quiz No. 9 – Marriage (Art. 37 – 54, FC)

I
Is the rule absolute that for as long as there is a valid existing marriage, a person, who is not a Muslim, cannot
contract a subsequent marriage? Why? (10%)

Answer.
No, because even during the existence of a valid marriage, a person may contract a subsequent marriage,
provided that there is first a judgment declaring an absent spouse presumptively dead after an absence of two
(2) or four (4) consecutive years and the present spouse does not know the whereabouts of the absent spouse.
(Art. 41, FC). The marriage that is valid here is the marriage of the present spouse.

II
a) One of the grounds for annulment of marriage is that either party, at the time of their marriage was
afflicted with a sexually-transmissible disease, found to be serious and appears incurable. Two years
after their marriage, which took place on 10 October 1988, Bethel discovered that her husband James
has a sexually-transmissible disease which he contracted even prior to their marriage although James did
not know it himself until he was examined two years later when a child was already born to them. Bethel
sues James for annulment of their marriage. James opposes the annulment on the ground that he did not
even know that he had such a disease so that there was no fraud or bad faith on his part. Decide.
b) Supposed that both parties at the time of their marriage were similarly afflicted with sexually-
transmissible diseases, serious and incurable, and both knew of the infirmities of the other, can Bethel or
James sue for annulment of their marriage?
Answer.
a) The marriage can be annulled. Art. 45 of the Family Code provides that a marriage can be annulled if
either party is afflicted with sexually-transmissible disease which is found to be serious and appears to
be incurable. Good faith is not a defense when the ground for annulment is sexually-transmissible
disease on the part of either party.
b) No, neither Bethel nor James can sue for annulment of marriage. It is true that under Art. 45 of the
Family Code, a marriage can be annulled if either party is afflicted with sexually-transmissible disease
found to be serious and appears to be incurable. However, Art. 47 of the Family Code provides that it is
the injured party who can file the action for annulment within five years. Since they are both aware of
each other’s infirmities, they cannot be considered injured party under Art. 47.

III
A and B are married. Their marriage was declared void. After the decision became final, A got married to C. Is
the marriage valid?
Answer.
It depends. If in the judgment of absolute nullity, the partition and distribution of the properties of the spouses
and the delivery of the children’s presumptive legitimes have been recorded in the appropriate civil registry or
registries of property, the marriage with C is valid. If they have not been registered or recorded, the subsequent
marriage is void. (See Art. 52 and 53, FC).

IV
The day John and Marsha got married, John told her that he was impotent. Marsha continued to live with John
for two years. Is Marsha now estopped from filing an annulment case against John? Explain.
Answer.
No. Marsha is not estopped from filing an annulment case against John on the ground of impotency under Art.
45(5) of the Family Code. Unlike the other grounds for annulment of voidable marriages which are subject to
ratification by continued cohabitation, the law does not allow ratification under Art. 45(5).

V
At the time of the celebration of the marriage between A and B, B, the woman, was already six (6) months
pregnant by a man other than her husband. After C’s birth, A went to court to impugn C’s legitimacy
contending that he is not his son, he having been born three (3) months after he got married to B. Is the
contention of A correct?

Answer.
No. While it is true that concealment by the wife of the fact that at the time of the marriage, she was pregnant
by a man other than her husband (Art. 46[par.2], FC), yet the pregnancy was in advanced state that it could have
been detected. (Buccat vs. Buccat, 72 Phil. 19; Aquino vs. Delizo, 109 Phil. 21). A is bound by the principle of
estoppel, because the pregnancy could not have been hidden or concealed under the circumstances.

VI
Is the non-disclosure to a wife by her husband of his pre-marital relationship with another woman a ground for
annulment of marriage? Explain.

Answer.
No. For fraud as a vice of consent in marriage, which may be a cause for its annulment, it is limited exclusively
by law in Art. 46, FC, as referring to misrepresentation, non-disclosure of a previous conviction involving moral
turpitude, and concealment of pregnancy, etc.
Further, the intention of the Congress to confine the circumstances that constitute fraud to those above
enumerated is clearly shown by the interdiction that: “No other misrepresentation or deceit to character, rank,
fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.”
(Aurora Anaya vs. Palaroan, L-27930, November 26, 1970).
VII
Edna and Romeo were married on December 21, 1978, in Iligan City. In 1992, Edna worked as domestic helper
in Singapore while her husband worked as a mechanic in Valencia City, Bukidnon. In 1993, Edna heard the
news from her children that Romeo had left their conjugal home without reason or information as to his
whereabouts. Thereafter, Edna took a leave from work and returned to the country to look for Romeo. She
inquired from her parents-in-law and common friends in Iligan City. Still, she found no leads as to his
whereabouts or existence. She also went to his birthplace in Escalante, Negros Oriental, and inquired from his
relatives. On August 6, 2009, Edna filed before the RTC a petition to declare Romeo presumptively dead under
Article 41 of the Family Code. During the trial, Edna was presented as the lone witness. Is the petition
meritorious? (10%)

Answer: Rabuya, p. 425-426; Republic vs. Orcelino-Villanueva, G.R. No. 210929, July 29, 2015
No.

Article 41 of the Family Code provides that before a judicial declaration of presumptive death may be granted,
the present spouse must prove that he/she has a well-founded belief that the absentee is dead. In this case, Edna
failed. The RTC and the CA overlooked Edna’s patent noncompliance with the said requirement.
The well-founded belief in the absentee’s death requires the present spouse to prove that his/her belief was the
result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that
under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort (not a mere passive one). Mere absence of the
spouse (even beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to communicate, or general
presumption of absence under the Civil Code would not suffice. The premise is that Article 41 of the Family Code places upon the present spouse the
burden of complying with the stringent requirement of "well-founded belief" which can only be discharged upon a showing of proper and honest-to-
goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but, more importantly, whether the absent spouse is still alive or
is already dead.

Her claim of making diligent search and inquiries remained unfounded as it merely consisted of bare assertions without any corroborative evidence
on record. She also failed to present any person from whom she inquired about the whereabouts of her husband. She did not even present her children
from whom she learned the disappearance of her husband. In fact, she was the lone witness. Following the basic rule that mere allegation is not
evidence and is not equivalent to proof, the Court cannot give credence to her claims that she indeed exerted diligent efforts to locate her husband.

Moreover, no document was submitted to corroborate the allegation that her husband had been missing for at least fifteen (15) years already. As the
OSG observed, there was not even any attempt to seek the aid of the authorities at the time her husband disappeared. In Cantor, the present spouse
claimed to have sought the aid of the authorities or, at the very least, reported his absence to the police. Yet, the Court denied her pleas.

Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give meaning to her well-founded belief that Romeo was
already dead. Suffice it to state that her petition should have been denied at the first instance.

VIII
The Supreme Court issued A.M. No. 02-11-10-SC which provides that a petition for declaration of absolute
nullity of a void marriage may be filed solely by the husband or wife and if filed, the case shall be closed and
terminated upon the death of either parties at any stage of the proceeding prior to entry of judgment. Does this
mean that a direct proceeding for the purpose of obtaining a judicial declaration of nullity of a void marriage
may no longer be filed after the death of either of the party to such void marriage?
Answer: Enrico vs. Heirs of Sps. Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 418; Carlos vs.
Sandoval, 574 SCRA 116 (2008); Ablaza vs. Republic, 628 SCRA 27 (2010); Rabuya, p. 350 – 356

It depends.

A.M. No. 02-11-10-SC extends only to marriages covered by the Family Code, which took effect on August 3,
1988, but, being a procedural rule that is prospective in application, is confined only to proceedings commenced
after March 15, 2003 (Ablaza v. Republic). Hence, it appears that under A.M. No. 02-11-10-SC, a direct action
questioning the validity of the marriage can only be maintained during the lifetime of both spouses.

However, A.M. No. 02-11-10-SC does not apply to:

1. Nullity of marriage cases commenced before its effectivity, even if the marriage was celebrated during
the effectivity of the Family Code; and
2. Marriages celebrated during the effectivity of the Civil Code.

Thus, in the foregoing two cases, a direct proceeding for the purpose of obtaining a judicial declaration of
nullity of a void marriage may still be filed after the death of either of the party to such void marriage.

IX
A and B are spouses. They have a son, C. X and Y are also spouses and they have a daughter, W. Upon the
death of A and Y, B and X got married. However, upon the death of B, X married C. Is the married of X and C
valid, void or voidable? Why? (10%)
Answer: Rabuya, p. 345

It is a void marriage under Article 38(2), FC which is marriages between step parents and step children.

X
In 1976, Delia Soledad Domingo and Roberto Domingo were married. Unknown to Delia, Roberto had a
previous marriage with one Emerlinda dela Paz in 1969. She came to know of the prior marriage only sometime
in 1983 when Emerlinda dela Paz sued them for bigamy. In 1991, Delia filed a petition before the Regional
Trial Court of Pasig entitled “Declaration of Nullity of Marriage and Separation of Property” against Roberto.
Instead of answering the petition, Roberto filed a Motion to Dismiss on the ground that the petition stated no
cause of action. Roberto contends that since the marriage is void ab initio, the petition for the declaration of its
nullity is superfluous and unnecessary. Furthermore, under his own interpretation of Article 40 of the Family
Code, he submits that a petition for declaration of absolute nullity of marriage is required only for purposes of
remarriage. Since the petition contains no allegation of Delia’s intention to remarry, said petition should,
therefore, be dismissed. Is the contention of Roberto correct? (10%)
Answer: Rabuya, p. 363; Domingo vs. Court of Appeals, 226 SCRA 572 (1993)
No. Art 40 on the basis SOLELY by final judgment…not SOLELY for purposes of remarriage.
Crucial to the proper interpretation of Article 40 is the position in the provision of the word "solely." As it is placed, the same shows that it is meant
to qualify "final judgment declaring such previous marriage void." Realizing the need for careful craftsmanship in conveying the precise intent of the
Committee members, the provision in question, as it finally emerged, did not state "The absolute nullity of a previous marriage may be
invoked solely for purposes of remarriage . . .," in which case "solely" would clearly qualify the phrase "for purposes of remarriage." Had the
phraseology been such, the interpretation of petitioner would have been correct and, that is, that the absolute nullity of a previous marriage may be
invoked solely for purposes of remarriage, thus rendering irrelevant the clause "on the basis solely of a final judgment declaring such previous
marriage void."

That the law seeks to ensure that a prior marriage is no impediment to a second sought to be contracted by one of the parties may be gleaned from
new information required in the Family Code to be included in the application for a marriage license, viz, "If previously married, how, when and
where the previous marriage was dissolved and annulled."

When a marriage is declared void ab initio, the law states that the final judgment therein shall provide for "the liquidation, partition and distribution
of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters
had been adjudicated in previous judicial proceedings."

Delia’s ultimate prayer for separation of property will simply be one of the necessary consequences of the judicial declaration of absolute nullity of
their marriage. Thus, Roberto’s suggestion that in order for their properties to be separated, an ordinary civil action has to be instituted for that
purpose is baseless.

The Family Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the
separation of property according to the regime of property relations governing them.
Quiz No. 10 – Legal Separation (Art. 55 - 67, FC)

I
A and B are married. One day, they agreed to separate and put into writing their agreement that they can take
each other another woman or man, respectively. Suppose A, the man lived with another woman, can B file a
suit for legal separation? Why? (10%)
Answer.
No, because of the consent given prior to the act of having given rise to an action for legal separation. (People
vs. Schneckenburger, 73 Phil. 413). Since there was consent, B does not deserve the court’s sympathy.
The second paragraph of article 344 of the Revised Penal Code provides:

"The offended party cannot institute criminal prosecution without including both the guilty parties, if they are
both alive, nor, in any case, if he shall have consented or pardoned the offenders." (Italics ours.)

II
X and Y are married. X was caught by Y having sexual intercourse with Z, X’s paramour, on December 15,
1986. On June 15, 1987, she again caught them in flagrante delicto. On June 15, 1992, Y filed an action for
legal separation alleging that she caught X having sexual intercourse with Z on December 15, 1986 and June 15,
1987. X moved to dismiss the action on the ground of prescription. The trial court dismissed the action and
ratiocinated that the adulterous acts in the first and second incidents must be deemed one continuous offense,
the defendants in both incidents being the same and identical persons and the two sets of unlawful acts having
taken place continuously during the years 1986 and 1987. Is the trial court correct? (10%)

Answer.

No. Under the law, an action for legal separation must be filed within five (5) years from the time of the
occurrence of the cause. (Art. 57, FC). While the act constituting the ground for legal separation committed on
December 15, 1986 has already prescribed at the time of the commencement of the action on June 15, 1992, yet
the action based on the act committed on June 15, 1987 has not yet prescribed. It is a rule that every adulterous
act has its own prescriptive period because it is a separate and different act. (People vs. Zapata and Bondoc,
May 16, 1951).

III
Is conviction necessary before action for legal separation may prosper? (10%)

Answer.
No. A decree of legal separation, on the ground of concubinage, may issue upon proof by preponderance of
evidence in the action for legal separation. No criminal proceedings or conviction is necessary. The case of Francisco
vs. Tayao, 50 Phil. 42 is not controlling because it was decided under Art. 2710 when absolute divorce was allowed and had for its grounds the same
grounds for legal separation under the NCC, with the requirement, under such former law, that the guilt of defendant spouse had to be established by
final judgment in a criminal action. The requirement has not been reproduced in the New Civil Code. In fact, such ground can be proven only in a
civil case. Criminal action is not needed.

Likewise, support pendente lite can be availed of in an action for legal separation and granted at the discretion of the judge. (Araneta vs. Concepcion,
99 Phil. 709). If petitioner finds the amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the
same. (Gandionco vs. Hon. Peñaranda, et. al., G.R. No. 79284, Nov. 27, 1987).

IV
X and Y are married. X was found guilty of attempt upon Y’s life. Later, Y died without executing a will;
hence, her children filed an intestate proceeding where X intervened to get his share of the estate of Y. Is X
entitled to inherit? Why? (10%)
Answer.
Yes, because there was no decree of legal separation. While it is true that he was convicted, yet, that is not
enough. A decree of legal separation is necessary. (Art. 63, FC)

V
In a case, there was an action for legal separation. It was ruled by the CA that the ½ undivided share of the
offending spouse in the property was already forfeited in favor of their daughter based on the ruling of the RTC
that the offending spouse in an action for legal separation is deprived of his share in the net profits of the
conjugal properties. Is the ruling correct? Why? (10%)
Answer.
No. If there is a decree of legal separation, under Art. 63 of the Family Code, the absolute community or the conjugal partnership shall be dissolved
and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal
partnership, which shall be forfeited in accordance with the provisions of Article 43(2).

It is only the share in the net profits which is forfeited in favor of their daughter. Art. 102(4) of the Family Code
provides that “for purposes of computing the net profits subject to forfeiture in accordance with Art. 43, No. (2)
and 63, No. (2), the said profits shall be the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value at the time of its dissolution.”
Clearly, what is forfeited in favor of their daughter is not his share in the conjugal partnership property but
merely in the net profits of the conjugal partnership property. (Siochi vs. Gozon, et. al., G.R. No. 169900;
Interdimensional Realty, Inc. vs. Siochi, et. al., G.R. No. 169977, March 18, 2010).

VI
The husband was granted a decree of legal separation on the ground of adultery, on the part of the wife. May the
wife inherit from the husband –
a) By intestate succession? Reasons. (5%)
b) By will? Reasons. (5%)
Answer.
a) The wife in the instant case cannot inherit from her husband by intestate succession. According to the
law, the offending spouse shall be disqualified from inheriting from the innocent spouse by intestate
succession.
b) It depends. If the will was executed prior to the legal separation, it is clear that in effect the wife cannot
inherit from her husband. According to the law, provisions in favor of the offending spouse made in the
will of the innocent spouse shall be revoked by operation of law. However, if the will was executed
subsequent to the legal separation, undoubtedly, the wife will then be able to inherit from her husband.
The reason is obvious. There is a tacit or implied pardon.
(Note: The above answers are based on No. 4 of Art. 63 of the Family Code. The last part regarding tacit pardon
is based on Art. 1033 of the Civil Code by analogy.)

VII
A caught his wife, B, having illicit relations with P on June 18, 1995. He then told her that he will file an action
against her for legal separation which the latter agreed provided that no criminal charges shall be filed against
her. The complaint for legal separation was filed on July 5, 1995. B defaulted. When questioned by the fiscal, B
signified her conformity to the legal separation. Is there a confession of a judgment in this case which would
justify the dismissal of the case in accordance with Art. 60 of the Family Code? (10%)

Answer.

No. Art. 60 of the Family Code does not exclude as evidence any admission or confession made by the
defendant outside of the court. It merely prohibits a degree of separation upon a confession of judgment.
Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff
to judgment or files a pleading expressly agreeing to the plaintiff’s demand. This did not occur in the instant
case. Yet, even supposing that the statement of defendant constituted a confession of judgment, inasmuch as
there is evidence of adultery independently of such statement, the decree may and should be granted, since it
would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively or mainly on defendant’s confession. Otherwise, if a confession can defeat the
action ipso facto, any defendant, who opposes the separation, will immediately confess judgment, purposely to
prevent it. (Ocampo vs. Florenciano, 107 Phil. 35).

VIII
Marriage; Legal Separation; Mutual guilt (2006) Saul, a married man, had an adulterous relation with Tessie. In
one of the trysts, Saul's wife, Cecile, caught them in flagrante. Armed with a gun, Cecile shot Saul in a fit of
extreme jealousy, nearly killing him. Four (4) years after the incident, Saul filed an action for legal separation
against Cecile on the ground that she attempted to kill him. (1) If you were Saul's counsel, how will you argue
his case? (2.5%)
SUGGESTED ANSWER:
As the counsel of Saul, I will argue that an attempt by the wife against the life of the husband is one of the
grounds enumerated by the Family Code for legal separation and there is no need for criminal conviction for the
ground to be invoked (Art. 55, par. 9, Family Code).
(2) If you were the lawyer of Cecile, what will be your defense? (2.5%)
SUGGESTED ANSWER: As the counsel of Cecile, I will invoke the adultery of Saul. Mutual guilt is a ground
for the dismissal of an action for legal separation (Art. 56, par. 4, Family Code). The rule is anchored on a well-
established principle that one must come to court with clean hands.
(3) If you were the judge, how will you decide the case? (5%)
SUGGESTED ANSWER: If I were the judge, I will dismiss the action on the ground of mutual guilt of the parties.
The Philippine Constitution protects marriage as an inviolable social institution (Art. XV, Sec. 2, 1987 Constitution). An action for legal separation
involves public interest and no such decree should be issued if any legal obstacle thereto appears on record. This is in line with the policy that in case
of doubt, the court shall uphold the validity and sanctity of marriage. (Brown v. Yambao, G.R. No. L-10699, October 18, 1957).

IX
In 1948, Pastor Tenchavez and Vicenta Escaño were married before a Catholic priest. On October 22, 1950,
Vicenta obtained an absolute divorce from her husband – from the State of Nevada. She then married in
America, an American. Both presently reside in California, the girl having acquired American citizenship in
1958. On July 30, 1955, however, Tenchavez had already initiated legal separation proceedings in the
Philippines. Will the legal separation proceedings and relief for damages prosper?
Answer: Pastor B. Tenchavez vs. Vicenta Escaño, L-19671, November 29, 1965

Yes. A foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil
Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage
contracted with another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to
validity in the country. The remarriage of divorced wife and her co-habitation with a person other than the
lawful husband entitle the latter to a decree of legal separation conformably to Philippine law. The desertion and
securing of an invalid divorce decree by one consort entitles the other to recover damages.

X
Pedro was lawfully married to Josefa. Because Pedro suspected his wife of being in love with another, Pedro
pretended to go to the province for a week. However, he did not really go away. He stayed merely in a
downtown hotel. At midnight, he went his house and there and then, he watched the actuations of his wife in the
act of adultery. If Pedro sues for legal separation, how will you, as a judge, decide the case?
Answer: Paras, p. 509; Robbins vs. Robbins, 54 Am. Rep. 448 (an American case)
Answer: I will grant the legal separation on the ground of adultery. There is nothing wrong in the husband
watching the actuations of his wife whom he suspected of infidelity. As held in a similar American case, it
cannot be said that in the problem presented, there was connivance.
Quiz No. 11– Rights and Obligation Between Husband and Wife and Property Relations Between Husband and
Wife (Art. 68 - 73, Art. 74 – 87, FC)

I
A, the man, married B, the woman, while the latter is at the age of 20. The consent of B’s parents was not given.
Before their marriage, B donated properties to A. Can B revoke the donation? (10%)
Answer:
Yes. Article 86(2) of the Family Code provides, to wit: “A donation by reason of marriage may be revoked by
the donor xxx
(2) When the marriage takes place without the consent of the parents or guardian, as required by law”.
In the instant case, the donation can be revoked at the instance of B because her parents did not give their
consent to the marriage.
II
Give three instances when a wife may establish a separate dwelling. (10%)
Answer.
Yes, like (1) when the husband is immoderate and barbaric in his demand for sexual intercourse (Goitia vs.
Campos-Rueda, 35 Phil. 252; (2) when there is gross insult upon her by her husband; (3) when the husband
maltreats her. (Campos Rueda case; Arroyo vs. Vasquez, 42 Phil. 54).
III
X and Y are married. Y abandoned the husband and went to the USA where she divorced the husband. When
she came back to the Philippines, she got married to Z. May X hold Y liable for damages and why? (10%)
Answer.
Yes, when one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to
bring danger, dishonor, or injury to the other or to the family, the aggrieved party may apply to the court for
relief. (Art. 72, FC; See Tenchavez vs. Escaño, 15 SCRA 355).
IV
X and Y are married. Y, without the consent of X, engaged in business which may have redounded to the
benefit of the family. However, in one contract to which Y entered into, she suffered losses, hence, a suit was
filed seeking to take the community of property liable? Will the action prosper? Why? (10%)
Answer.
Yes, because the transaction redounded to the benefit of the family. (Art. 73, FC)
V
Before the marriage, A had properties valued at P500,000.00. He entered into a marriage settlement with B, his
future spouse, where a conjugal partnership was agreed upon and A donated to B P200,000.00. Is the donation
valid? (10%)
Answer.
Yes. The law allows A to give only 1/5 of such properties to B before and in consideration of the marriage. If
the future spouse gives the other more than 1/5 of his present property, the donation would not be completely
void. Only the excess is void. (Art. 84, FC)

VI
A and B are married. Prior to their marriage, they entered into an ante-nuptial agreement without having it
notarized. Is the agreement valid? Reason. (10%)
Answer.
Yes, the law is clear that the marriage settlements and any modification thereof shall be in writing, signed by
the parties and executed before the celebration of the marriage. (Art. 77, FC). The law merely requires it to be in
writing; it does not require that it be in a public instrument for purposes of its validity.
VII
Erlinda and Miguel got married while Miguel’s marriage with Carlina was still subsisting. During their
coverture, Miguel gave her P20,000.000.00 which she used to buy property and placed it under her name. Is the
donation of Miguel to Erlinda valid, void or voidable? Why?
Answer.
Void. It is a donation by Miguel to Erlinda which is void because it was made between persons guilty of
adultery at the time of the donation. Moreover, Article 87 of the Family Code provides that the prohibition
against donations between spouses now applies to donations between persons living together as husband and
wife without a valid marriage (Buenaventura vs. Bautista, 50 O.G. 3679; Matabuena vs. Cervantes, 38 SCRA 284), for otherwise, the
condition of those who incurred guilt would run out to be better than those in the legal union. (Buenaventura vs. Bautista, 50 O.G. 3679; Matabuena
vs. Cervantes, 38 SCRA 284; Agapay vs. Palang, G.R. No. 116668, July 28, 1997, 85 SCAD 145).

VIII
H and W are husband and wife. Without any justifiable cause, W abandoned the conjugal home. Can H ask a
competent court to order W to return to the conjugal home under pain of contempt? Why? (10%)
Answer.
No, the court cannot order W to return to the conjugal home under pain of contempt. The doctrine in this
jurisdiction, which is now well-settled, is that the obligation of cohabitation of husband and wife is not
enforceable by contempt proceedings. (Arroyo vs. Vasquez de Arroyo, 42 Phil. 54; Atilano vs. Chua, 103 Phil. 255; Tenchavez vs.
Escano, 15 SCRA 355, 17 SCRA 674). The reason for this is that cohabitation or jus consortium is a purely personal obligation – an obligation to do.
To compel the wife to comply with such obligation would be an infringement of her personal liberty. As the Supreme Court in Tenchavez vs. Escano
has so aptly stated it – “in private relations, physical coercion is barred under the old maxim – Nemo potest preciso cogi ad factum.” Consequently, if
H really wants his wife to return to the conjugal home, the only thing that he could do under the circumstances would be to ask the court to admonish
her to return on the ground that under the law, husband and wife are obliged to live together. ( Art. 68, FC)

IX
A donation propter nuptias of a parcel of land was given by X to Y. They were subsequently married but the
marriage was annulled on the complaint of Y upon her discovery that X has been previously married. X now
files a suit for revocation of donation. Decide the case with reasons. (10%)
Answer.
The suit for revocation for the donation propter nuptias will not prosper. True, the marriage of X and Y was
annulled at the instance of the donee but it must be noted that Y, the donee, did not act in bad faith. If anybody
acted in bad faith, it was X, the donor. Under No. 3 of Art. 86 of the Family Code, it is clear that the donation in
the instant case can be revoked only if the marriage is annulled, and the donee acted in bad faith.
X
Francisco Comille, a widower, asked his niece and her cousin to take care of him. There was another woman, Cirila Arcaba, then, a widow who took
care of him. When the niece and her cousin got married, Cirila was left to take care of Francisco. There were conflicting versions as to their
relationship because evidence was shown that they became lovers since they slept in the same room. Cirila, however, said that she was a mere helper
who could enter the master’s bedroom only when the old man asked her to and that in any case, he was too old for her. She denied having sexual
intercourse with him. Before he died, he executed a Deed of Donation Inter Vivos of a real property in her favor in consideration of her faithful
services rendered for the past 10 years. After his death, his relatives filed an action for declaration of nullity of the Deed of Donation claiming that
since he left no heirs, they, as nieces and nephews were entitled to inherit the property under the law on intestate succession. They claimed that the
donation was void since they were common law husband and wife. In her testimony, she said that she signed documents bearing the name “Cirila
Comille and on the basis of such findings and other pieces of evidence, the RTC ruled that they were common-law spouses, hence, the donation was
void under Article 87 of the Family Code. The judgment was affirmed by the CA, hence, she went to the Supreme Court raising as error the finding
of the two lower courts that they were common-law spouses, claiming that they have never cohabited since there was no sexual intercourse between
them. As the ponente assigned to write the decision, will you grant the action for declaration of nullity of the Deed of Donation? (10%)

Answer: Arcaba vs. Tabancura Vda. de Batocael G.R. No. 146683, November 22, 2001
In Bitangcor vs. Tan, it was held that the term “cohabitation” or “living together as husband and wife” means
not only residing under one roof, but also having repeated sexual intercourse. Cohabitation, of course, means
more than sexual intercourse, especially when one of the parties is already old and may no longer be interested
in sex. At the very least, cohabitation is the public assumption by a man and woman of the marital relation, and
dwelling together as man and wife, thereby holding themselves out to the public as such. Secret meetings or nights
clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation; they are merely meretricious. In this jurisdiction, it
has been considered as sufficient proof of common-law relationship the stipulations between the parties, a conviction of concubinage, or the
existence of illegitimate children. Was Cirila Francisco’s employee or his common-law wife? Cirila admitted that she and Francisco resided under
one roof for a long time. It is very possible that the two consummated their relationship, since Cirila gave Francisco therapeutic massage and Leticia,
one of the nieces said they slept in the same bedroom. At the very least, their public conduct indicated that their’s was not just a relationship of
caregiver and patient, but that of exclusive partners akin to husband and wife. Aside from Erlinda Tabancura’s testimony that her uncle told
her that Cirila was his mistress, there are other indications that Cirila and Francisco were common-law spouses. Seigfredo Tabancura
presented documents apparently signed by Cirila using the surname “Comille,” like an application for a business permit to operate as a
real estate lessor, a sanitary permit to operate as real estate lessor with a health certificate, and the death certificate of Francisco. These
documents show that Cirila saw herself as Francisco’s common-law wife, otherwise, she would not have used his last name. Similarly,
in the answer filed by Francisco’s lessees in “Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio Sy,” RTC Civil Case No.
4719 (for collection of rentals), these lessees referred to Cirila as “the common-law spouse of Francisco.” Finally, the fact that Cirila
did not demand from Francisco a regular cash wage is an indication that she was not simply a caregiver-employee, but Francisco’s
commonlaw spouse. She was, after all, entitled to a regular cash wage under the law. It is difficult to believe that she stayed with
Francisco and served him out of pure beneficence. Human reason would thus lead to the conclusion that she was Francisco’s common-
law spouse. It having been proven by a preponderance of evidence that Cirila and Francisco lived together as husband and wife
without a valid marriage, the inescapable conclusion is that the donation made by Francisco in favor of Cirila is void under Art. 87 of
the Family Code.
Quiz No. 12 – Property Relations Between Husband and Wife (Art. 88 – 104, FC)

I
X, the husband of Y, hits a pedestrian and kills the latter. He was sued for damages and held liable for the same.
Which property shall be used to pay for the damages assuming that their property relation is absolute
community of property? (5%). Assuming that such property is insufficient to cover the liability, which property
shall be used to pay for the deficiency? (5%)

Answer: Albano, Persons & Family Relations, p. 452.

Exclusive property of debtor-spouse. Art. 92(9), FC provides, “The absolute community of property shall be
liable for xxx liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as
advances to be deducted from the share of the debtor-spouse upon liquidation of the community”

In case of deficiency, it is the absolute community of property that shall be liable which will be considered as
advances to be deducted from the share of the debtor-spouse upon liquidation of the community.

II
A, a bachelor, owns a parcel of land. He built a house on the said land from the proceeds of a loan contracted
prior to his marriage with B. The house now serves as their residence. The loan, however, became due and
demandable five (5) months after their marriage. Is the conjugal partnership/absolute community of property
liable? Why? (10%)
Answer.
Yes, because the law says that the absolute community of property or the conjugal partnership shall be liable for
all ante-nuptial debts of either spouse insofar as they redounded to the benefit of the family. (Arts. 94 and 121,
FC). Since the house is now being used as residence of the family, the loan definitely redounded to the benefit
of the family within the contemplation of the law. The measure of the community’s liability for such ante-
nuptial debts is the benefit it gave to the family.

III
On October 31, 1995, the woman obtained a loan secured by a Real Estate Mortgage over a real property under
their names but without the consent of the husband. She issued checks as partial payments but the same were
dishonored, hence, the creditor filed a complaint for Foreclosure of the Mortgage with damages. The RTC
dismissed the case as the mortgage was executed without the consent of the husband even as it noted that he
executed a Special Power of Attorney for the wife to execute the mortgage on November 4, 1995. The RTC
however ruled that the subsequent execution of the SPA cannot be made to retroact to the date of the execution
of the real estate mortgage. Is the ruling correct? Why? (10%)
Answer: Arturo Sarte Flores vs. Spouses Enrico & Edna Lindo, G.R. No. 183984, April 13, 2011
No, because the execution of the SPA can be considered as acceptance of the mortgage by the other spouse that
perfected the contract or continuing offer.

Both Article 96 and Article 124 of the Family Code provide that the powers of the administration do not include
disposition or encumbrance without the written consent of the other spouse. Any disposition or encumbrance
without the written consent shall be void. However, both provisions also state that “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 xxx before the offer is withdrawn by either or
both offerors.” (Arturo Sarte Flores vs. Spouses Enrico & Edna Lindo, G.R. No. 183984, April 13, 2011).
Note: This is an example of a void contract that can be ratified. (See: Art. 5, NCC)

IV
Romarico and Katrina are married. They have three children, but they have been living separately from each
other most of the time. During the marriage, Romarico acquired a lot consisting of 1,787 square meters. In
1972, while in Hong Kong, Katrina entered into a contract with Anita Wong, whereby she consigned to her
pieces of jewelry worth P321,830.95. When she failed to return the jewelries, Anita demanded the payment
where Katrina issued a check for P55,000.00. When it bounced, she was sued criminally, but since the
obligation was purely civil in nature, a suit for collection of sum of money was filed against her. Judgment was
rendered against Katrina. When it became final and executory, the parcel of land was levied upon and sold at a
public auction. Issues:
(1) Whether or not the property is conjugal or not; (5%)
(2) Whether the property is liable for the indebtedness of Katrina. (5%)
Answer: Spouses Ricky and Anita Wong, et al. vs. IAC, et al. G.R. No. 70082, August 19, 1991
Held: (1) Having been acquired during the marriage, the property is presumed to belong to the conjugal
partnership (Cuenca vs. Cuenca, 168 SCRA 335), even though Romarico and Katrina had been living
separately. (Flores vs. Escudero, 92 Phil. 786). The presumption of the conjugal nature of the properties subsists
in the absence of clear, satisfactory, and convincing evidence to overcome said presumption or to prove that the
properties are exclusively owned by Romarico. (Ahern vs. Julian, 39 Phil. 607). While there is proof that Romarico
acquired the properties with money he had borrowed from an officemate, it is unclear where he obtained the money to repay the loan. If he paid it out
of his salaries, then the money is part of the conjugal assets and not exclusively his. Proof on this matter is of paramount importance considering that
in the determination of the nature of a property acquired by a person during coverture, the controlling factor is the source of the money utilized in the
purchase. (2) The conjugal nature of the properties notwithstanding, Katrina’s indebtedness may not be paid for
with the same since her obligation was not shown by the petitioners to be one of the charges against the
conjugal partnership. (Lacson vs. Diaz, 14 SCRA 183). In addition to the fact that her rights over the properties are merely
inchoate prior to the liquidation of the conjugal partnership, the consent of her husband and her authority to incur such indebtedness had not been
alleged in the complaint and proven at the trial.(Manaois-Salonga vs. Natividad, 107 Phil. 268). Furthermore, under the Civil Code (before the
effectivity of the Family Code on August 3, 1988), a wife may bind the conjugal partnership only when she purchases things necessary for the
support of the family or when she borrows money for the purpose of purchasing things necessary for the support of the family if the husband fails to
deliver the proper sum; when the administration of the conjugal partnership is transferred to the wife by the courts or by the husband, and when the
wife gives moderate donations for charity. Having failed to establish that any of these circumstances occurred, the Wongs may not bind the conjugal
assets to answer for Katrina’s personal obligations to them.

V
An individual, while single, purchases a house and lot in 1990 and borrows money in 1992 to repair it. In 1995,
such individual gets married while the debt is still being paid. After the marriage, is that debt still the
responsibility of such individual? (10%)
Answer: 2007 Bar Examination
SUGGESTED ANSWER:
No. The absolute Community of property is liable for the ante-nuptial debts of either spouse in so far as the
same redounded to the benefit of the family (Art. 94 par.7, FC).
ALTERNATIVE ANSWER:

No. The debt is already the responsibility of the community property, because the property already constitutes absolute community property under
Art. 91 of FC which took effect in 1988 while the house and lot here involved was purchased in 1990. There is no indication that the spouse who
bought the property had legitimate descendants by a former marriage, which would exclude the house and lot from the community property, Art. 92
par 3, FC.

VI
Danny and Elsa were married in 2002. In 2012, Elsa left the conjugal home and her two minor children with
Danny to live with her paramour. In 2015, Danny sold without Elsa’s consent a parcel of land registered in his
name that he had purchased prior to the marriage. Danny used the proceeds of the sale to pay for his children’s
tuition fees. Is the sale valid, void or voidable? Explain your answer. (10%)

Answer: 2017 Bar Examination

The sale is void because the subject property is a community property which was sold without the consent of
one of the spouses. Since the marriage of Danny and Elsa was celebrated during the effectivity of the Family Code without a marriage
settlement, their property regime is absolute community of property, which is the property regime that applies by default under the Family Code in
the absence of a marriage settlement. Under the regime of absolute community, properties acquired by the future spouses prior to the celebration of
the marriage shall become community.

Under the regime of absolute community, the disposition or encumbrance of community property must have
the written consent of the other spouse or the authority of the court without which the disposition or
encumbrance is void. Here, the sale of the absolute community by the husband without the consent of the wife
or the authority of the court renders the sale void, whatever may be the reason for such sale. The husband should have
obtained court authorization in selling the community property for the purpose of using proceeds thereof to pay his children’s tuition fees. (Basis:
Art. 75, 91, and 96, Family Code; discussed in pages 145, 147 and 153, Volume I, Rabuya Civil Law Reviewer).

VII
A and B are married. They have two children. During the marriage, they acquired properties. A died, hence, B
got married to C. Do the properties of B which were acquired in the previous marriage with A form part of the
absolute community of property in her marriage with C? Why? (5%). Would your answer be the same if B had
no legitimate children with A? Why? (5%)
Answer: Albano, p. 103.
No. Under the law, property acquired before the marriage by either spouse who has legitimate descendants by a
former marriage, and the fruits, as well as the income, if any, of such property is excluded from the absolute
community of property. (Art. 92[3], F.C.). The reason for the law is that, the interests of the legitimate children
in the first marriage are supposed to be protected.
No. The law does not apply if the spouse who contracted a subsequent marriage had no legitimate children with
the deceased spouse.

VIII
Spouses Arturo and Esther Abalos are the registered owners of a parcel of land. Armed with a Special Power of
Attorney, Arturo executed a Receipt and Memorandum of Agreement (RMOA) dated October 17, 1989, in favor
of Dr. Galicano Macatangay, Jr., binding himself to sell to him the subject property and not to offer the same to
any other party within thirty (30) days from date. Subsequently, Arturo’s wife, Esther, executed a Special Power
of Attorney appointing her sister, Bernadette Ramos, to act for and in her behalf relative to the transfer of the
property to Dr, Macatangay. On November 16, 1989, Esther, through her attorney-in-fact, executed in favor of
Dr. Macatangay, a Contract to Sell the property to the extent of her conjugal interest therein for the sum of six
hundred fifty thousand pesos (P650,000.00). Esther agreed to surrender possession of the property to respondent
within twenty (20) days from November 16, 1989, while the latter promised to pay the balance of the purchase
price in the amount of one million two hundred ninety thousand pesos (P1,290,000.00) after being placed in
possession of the property. Esther also obligated herself to execute and deliver to respondent a deed of absolute
sale upon full payment. However, Arturo and Esther failed to deliver the property which prompted Dr.
Macatangay to file a complaint for specific performance with damages against Arturo and Esther. The Regional
Trial Court (RTC) dismissed the complaint for specific performance. It ruled that the Special Power of
Attorney (SPA) ostensibly issued by Esther in favor of Arturo was void as it was falsified. On appeal taken by
Dr. Macatangay, the Court of Appeals reversed the decision of the trial court. It ruled that the SPA in favor of
Arturo, assuming that it was void, cannot affect the transaction between Esther and Dr. Macatangay. The appellate
court ratiocinated that it was by virtue of the SPA executed by Esther, in favor of her sister, that the sale of the
property to respondent was effected. On the other hand, the appellate court considered the RMOA executed by
Arturo in favor of respondent valid to effect the sale of Arturo’s conjugal share in the property. Is the Court of
Appeals correct in ruling that a contract to sell is a contract of sale, and in ordering petitioner to execute a
registrable form of deed of sale over the property in favor of respondent? (10%)
Answer: Abalos vs. Macatangay, Jr., G.R. No. 155043, September 30, 2004.
No.
More significantly, it has been held that prior to the liquidation of the conjugal partnership, the interest of each
spouse in the conjugal assets is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable
estate, and does not ripen into title until it appears that there are assets in the community as a result of the
liquidation and settlement. The interest of each spouse is limited to the net remainder or remanente liquido (haber
ganancial) resulting from the liquidation of the affairs of the partnership after its dissolution. Thus, the right of
the husband or wife to one-half of the conjugal assets does not vest until the dissolution and liquidation of the
conjugal partnership, or after dissolution of the marriage, when it is finally determined that, after settlement of
conjugal obligations, there are net assets left which can be divided between the spouses or their respective heirs.
In the instant case, there was no liquidation yet of the conjugal partnership. Thus, neither Arturo nor Esther vests
title to their one-half conjugal assets.

IX
X and Y are married. A, father of X, donated a parcel of land to him. Is the property a part of the absolute
community of property or exclusive property of X? Explain. (10%)
Answer.
It is, as a general rule, an exclusive property of X, except if the donor has provided in the deed of donation that
such property shall form part of the absolute community of property. (Art. 92[1], FC).
In Villanueva vs. IAC, 192 SCRA 21, the Supreme Court said the regardless of the time when the donation was
made, such property is a part of the exclusive property of the donee-spouse.
X
Explain whether or not the following are chargeable to or form part of the community property and support your
answer with the provision/s of law:
1. Educational expenses of the spouse (2%)
2. Debts that already exists during the marriage (2%)
3. Lotto winnings (2%)
4. Horse race bet (2%)
5. Expenses of litigation between the spouses (2%)
Answer.
1. The educational expenses shall be chargeable to the community property because Art. 94 provides that
expenses to enable either spouse to commence or continue a professional or vocational course is
chargeable to the community property.
2. Antenuptial debts are chargeable insofar as they have redounded to the benefit of the family. (Art.
94[7]).
3. Lotto winnings belong to the community properties. Art 95 of the Family Code provides that any
winnings in any game of chance or gambling shall form part of the community property.
4. The amount used for horse race bet shall be borne by the loser – the spouse who made the bet – and is
not chargeable to the community property. Art. 95 of the Family Code provides that “whatever may be
lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the
community but any winnings therefrom shall form part of the community property.”
5. Expenses of litigation between the spouses are chargeable to the absolute community unless the suit is
found to be groundless. If the community property is insufficient to cover this obligation, the spouses
shall be solidarily liable for the unpaid balance with their separate properties.
Quiz No. 13 – Property Relations Between Husband and Wife (Art. 105 – 133, FC)

I
X and Y are married with three (3) children. X abandoned the wife and children and lived with Z. A friend, B,
entered into a contract of loan with PNB whereby X became a guarantor. B failed to pay the obligation; hence,
B, X and Y were sued. Judgment was rendered. Can the community of property of X and Y be held liable?
Why? (10%)
Answer: BA Finance Corporation vs. CA, G.R. No. L-61464, May 28, 1988
No, because the contract did not redound to the benefit of the family, instead, it would later dissipate the assets of the family.
(BA Finance Corporation vs. CA, G.R. No. L-61464, May 28, 1988). While the obligation was contracted during the marriage, yet the measure of
liability of the community of property is the benefit it would bring to the family. A guaranty agreement is without any consideration. This is
especially so because X has abandoned the family.

II
Petitioner lent to the respondent but without the consent of his spouse the amount of $25,000.00 for the
purchase of a house and lot. In fact, when he inquired from them the status of their loan, they acknowledged it
but they failed to pay despite demand, hence, a suit for sum of money was filed. Respondent claimed that the
amount was his share in the corporation’s profits. The RTC decided for the plaintiff but the CA decided for the
defendant. Are the conjugal partnership properties answerable to the obligation? Why? (10%)
Answer: Albano, p. 118; Carlos vs. Abelardo, G.R. No. 146504, April 4, 2002
Yes, because the loan redounded to the benefit of their family.
The amount of $25,000.00 was in the form of a loan as shown by the fact that they acknowledged the
indebtedness by the plaintiff, and hence, the liability of the conjugal partnership. Under the law, the conjugal partnership
shall be liable for all “”xxx (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of them with the consent of the other; (3) Debts and obligations contracted by either
spouse without the consent of the other to the extent that the family may have been benefited.”

The loan redounded to the benefit of the family because it was used to purchase the house and lot which became
the conjugal home of respondent and his family. Hence, notwithstanding the alleged lack of consent of
respondent, under Article 121 of the Family Code, he shall be solidarily liable for such loan together with his
wife.
III
X, a bachelor, bought a parcel of land on installment basis. Under the contract, ownership was vested in him
even before payment of the balance. One year before he could pay the balance, X got married to Y; and out of
conjugal funds, the balance was paid. Who owns the land? Why? (10%)
Answer: Albano, p. 118
X owns the land. Under the law, property bought on installment basis paid partly from exclusive funds of either
or both spouses and partly from funds belonging to the conjugal partnership belongs to the buyer or buyers if
full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested
during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall
be reimbursed by the owner or owners upon the liquidation of the partnership. (Art. 118, FC).
IV
If a property was acquired by A before his marriage to B but registered after the marriage, is there a
presumption of conjugality? Why? (10%)
Answer.
None. The presumption of conjugality applies only when there is proof that the property was acquired during
the marriage. The mere fact that the title was issued when the spouses were already married is not sufficient
proof of conjugality especially where there was no proof as to when the property was acquired. Acquisition of
title and registration are two different acts. Registration does not confer title but merely confirms one already
existing. (Estonina vs. CA, et. al., 78 SCAD 321, 266 SCRA 627[1997]; Metrobank, et. al. vs. Jose Tan, et. al.,
G.R. No. 163712, November 30, 2006)
V
X is engaged in the business of lending money with interest. He lent P1,000,000 to Y in October 1990, payable
within one (1) year commencing on January 1, 1991. He, however, got married on December 30, 1990 under
the regime of conjugal partnership of gains. Who owns the principal? Explain. (5%) How about the interest?
Explain. (5%)
Answer.
X owns the principal. The interest is owned by the conjugal partnership. The law provides that whenever an
amount or credit payable within a period of time belongs to one of the spouses, the sums which may be
collected during the marriage in partial payments or by installments on the principal shall be the exclusive
property of the spouse. However, interests falling due during the marriage on the principal shall belong to the
conjugal partnership. (Art. 119, FC).
The reason for the rule that interests falling due during the marriage belong to the conjugal partnership is
because the same are fruits of the exclusive property of X. (See Art. 106, FC).
In the instant case, xxx
VI
X is engaging in the business of lending money with interest. He lent P1,000,000.00 to Y in October 1990, payable within one (1) year commencing
on January 1, 1991. He, however, got married on December 30, 1990. Who owns the principal? How about the interest? Why? (10%)

Answer: Albano, p. 119

X owns the principal. The interest is owned by the conjugal partnership. The law provides that whenever an amount or credit payable within a period
of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal
shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal
partnership. (Art. 119, FC).

The reason for the rule that interests falling due during the marriage belong to the conjugal partnership because the same are fruits of the exclusive
property of X. (See Art. 106, F.C.)

In the instant case, xxx

VII
During the marriage, the husband sold his property with the right to repurchase the same after a certain period
of time. The husband was not able to repurchase it because he died. Afterwards, the widow purchased the
property of her dead husband. The heirs of the husband now claimed that the property as their own. Who owns
the property, the wife, who purchased it with her own money, or the heirs of the late husband?
Answer: Paras, p. 569; Consunji vs. Tison, 15 Phil. 81
Art. 109 (3) of the Family Code provides, to wit: The following shall be the exclusive property of each spouse:
that which is acquired by right of redemption, xxx.
In the instant case, the right to repurchase was acquired by the husband when he was still alive. The wife was
merely exercising the right previously given to the husband during his lifetime; and thus the property does not
belong to her. The owners of the property are the heirs of the husband, subject to a lien in favor of the wife for
the money she used in redeeming the property.

VIII
A husband was convicted, and to satisfy his civil liability, since he did not possess sufficient separate property,
four parcels of land belonging to the conjugal partnership were sold. Out of the P1,385 the husband was
supposed to pay, only a portion was paid from the proceeds of the sale and there remained a balance of P793. In
the meantime, two parcels were redeemed by the wife with the money she obtained from her father. Later, the
sheriff attached said parcels and sold the same on execution to satisfy the balance. The wife wants now to
cancel the sale on the ground that the redeemed parcels are to be considered paraphernal and should therefore,
not have been levied upon. Whether or not the sale of the parcels of land be canceled or annulled.
Answer: Paras, p. 570; Rosete vs. Sheriff of Zambales, 95 Phil. 560
The sale should be annulled because the parcels are paraphernal. The right of redemption is not the same as the
right of a successor in interest in cases of execution of judgment. Article 109 (3) of the Family Code provides, to wit: The
following shall be the exclusive property of each spouse: that which is acquired by right of redemption, xxx. Section 27(a) of Rule 39 of 1997 Rules
of Civil Procedure provides: “Who may redeem real property so sold. – xxx (a) The judgment obligor, or his successor in interest in the whole or any
part of the property.” In the case of Rosete vs. Sheriff of Zambales, the Supreme Court ruled that “The term "successor in interest" appearing in
subdivision (a), Section 25 (now Section 27), Rule 39, includes, "one who succeeds to the interest of the debtor by operation of law" or "the wife as
regards her husband's homestead by reason of the fact that some portion of her husband's title passes to her and (b) a property is deemed to belong
exclusively to the wife (1) when acquired by her by-right of redemption, and (2) with money belonging exclusively to her.”

In the instant case, the wife redeemed the property, not in behalf of her husband, but in her own behalf as her
husband’s successor in interest in the whole or part of the property, it being then conjugal. Having been
obtained in her own right of redemption with money belonging exclusively to her, said property becomes
paraphernal. It thus ceased to be conjugal property; it cannot be levied on by virtue of a judgment affecting
exclusively the personal liability of the husband.
IX
W, wife of H, while riding as a passenger in a taxicab, was severely injured when the taxicab collided with a
passenger bus. In a civil action which she instituted against the operator of the passenger bus but whose driver
was at fault, she was awarded P2,000 as a compensatory damages for hospital and medical expenses and for
loss of earning capacity, and P4,000 as moral damages. State whether such damages are conjugal or
paraphernal. Reasons. (10%)
Answer.
We must distinguish. The compensatory damages are conjugal because it is the conjugal partnership which
really suffered in this case. The moral damages, on the other hand, are paraphernal. It is personal to W because
she was the one who directly suffered the physical suffering which is the basis of moral damages. (See Lilius
vs. Manila Railroad Co., 62 Phil. 56.).
X
X and Y are married with two children. They entered into a contract with ABC Realty Corp. for a lease over a
real property for 20 years with conditional sale. One of the conditions is that ownership and title shall pass upon
full payment of the rentals in the entire period. On the tenth year, Y died. X married Z and they continued the
payments until fully paid. Ownership was acquired. X donated it to one of his children in the first marriage.
After his (X’s) death, Z and her children went after the property and claimed the same to be part of the
properties of the second marriage. Rule on the contention. (10%)
Answer.
Z and her children are correct since full ownership was vested only during the second marriage. Art. 118 of the
Family Code can be given retroactive effect since no vested right by the first marriage was ever acquired.
(Jovellanos vs. CA, et. al., G.R. No. 100728, June 18, 1992.)
Quiz No. 14 – Property Relations Between Husband and Wife (Art. 134 – 148, FC)

I
Spouses Pedro and Maria decided to separate and to voluntarily dissolve their conjugal partnership. Hence, they
execute a public instrument wherein they declared that they had no debts, that they were voluntarily dissolving
their conjugal partnership, and that each of them would thereafter be free to acquire or dispose of any property
independently of the other. Thereafter, they lived apart.

Pedro engaged in business which unfortunately failed. On the other hand, Maria continued to be gainfully
employed and was able to acquire properties through her own efforts.

The creditors of Pedro obtain a judgment against the latter which they could not satisfy because Pedro was
insolvent.

Could the creditors of Pedro obtain satisfaction of the judgment out of the properties of Maria? (10%)

Answer: Jurado, p. 170; Bar Examination (1984)

Yes, the creditors can obtain satisfaction of the judgment out of the properties of Maria.

It is obvious that the properties of Maria are conjugal because they were acquired through her own effort and
industry (Art. 117(2), FC). It is also obvious that the obligations of Pedro are conjugal obligations because they
have benefited his family (Art. 121(2), FC). Therefore, the creditors of Pedro can proceed after the properties
acquired by Maria.

But how about the agreement between Pedro and Maria to separate and dissolve their conjugal partnership
voluntarily. This agreement is void because it was never approved by a competent court. (Art. 134, FC).
Consequently, it cannot produce any legal effect.

II
For five years since 1989, Tony, a bank Vice-President, and Susan, an entertainer, lived together as husband and
wife without the benefit of marriage although they were capacitated to marry each other. Since Tony’s salary
was more than enough for their needs, Susan stopped working and merely “kept house.” During that period,
Tony was able to buy a lot and house in a plush subdivision. However, after five years, Tony and Susan decided
to separate.
a. Who will be entitled to the house and lot? (5%)
b. Would it make any difference if Tony could not marry Susan because he was previously married to
Alice from whom he is legally separated? (5%)
Answer: Aquino, pp. 73-74
Tony and Susan are entitled to the house and lot with each of them getting equal shares. Since they are
common-law spouses without impediment to marry, their property relation is governed by the laws on co-
ownership. In addition, under Article 147 of the Family Code, when a man and a woman who are capacitated to
marry each other lived exclusively with each other as husband and wife, the property acquired during their
cohabitation are presumed to have been obtained by their joint efforts, work or industry and shall be owned by
them in equal shares. The equal share is maintained even if the efforts of one of them consisted merely in his or
her care and maintenance of the family and of the household.
Yes, it would make a difference. Only properties that were acquired by both of them through their actual joint
contribution of money, property or industry shall be owned by them in common in proportion to their respective
contributions. (Art. 148 of the Family Code). Since Susan did not contribute to the acquisition of the house and
lot, she has no share in the property.
III
Bert and Joe, both male and single, lived together as common law spouses and agreed to raise a son of Bert's
living brother as their child without legally adopting him. Bert worked while Joe took care of their home and the
boy. In their 20 years of cohabitation they were able to acquire real estate assets registered in their names as co-
owners. Unfortunately, Bert died of cardiac arrest, leaving no will. Bert was survived by his biological siblings,
Joe, and the boy.

Can Article 147 on co-ownership apply to Bert and Joe, whereby all properties they acquired will be presumed to
have been acquired by their joint industry and shall be owned by them in equal shares? (10%)
Answer: 2015 Bar Exam

No, Article 147 cannot apply to Bert and Joe because the law only applies to a man and a woman who are
capacitated to marry each other who live together as husband and wife without the benefit of marriage or under a
void marriage. In the case of Bert and Joe, they are both men so the law does not apply.

IV
Bernard and Dorothy lived together as common-law spouses although they are both capacitated to marry. After
one year of cohabitation, Dorothy went abroad to work in Dubai as a hair stylist and regularly sent money to
Bernard. With the money, Bernard bought a lot. For a good price, Bernard sold the lot. Dorothy came to know
about the acquisition and sale of the lot and filed a suit to nullify the sale because she did not give her consent to
the sale.
[a] Will Dorothy's suit prosper? Decide with reasons. (5%)
[b] Suppose Dorothy was jobless and did not contribute money to the acquisition of the lot and her efforts
consisted mainly in the care and maintenance of the family and household, is her consent to the sale
a prerequisite to its validity? Explain. (5%)
Answer: 2016 Bar Exam
SUGGESTED ANSWER:
[a] Yes, Dorothy's suit will prosper, unless the buyer is a buyer in good faith and for value. The rule of co-
ownership governs the property relationship in a union without marriage between a man and a woman who are
capacitated to marry each other. Article 147 of the Family Code is specifically applicable. Under this article,
neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during
cohabitation and owned in common, without the consent of the other, until after the termination of their
cohabitation, thus, Bernard may not validly dispose of the lot without the consent of Dorothy as the lot was
acquired through their work during their cohabitation.
[NOTE: It is suggested that some credit be given to examinees who reason that Article 147 does not apply
because under the facts given, Dorothy and Bernard were not living together as husband and wife].
[b] Yes, if Dorothy was jobless and did not contribute money to the acquisition of the lot, her consent is still a
prerequisite to the validity of the sale. Under the same article, a party who did not participate in the acquisition
by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the
former's efforts consisted in the care and maintenance of the family and the household. In this case, although the
money used to buy the lot was solely from Bernard, Dorothy's care and maintenance of the family and
household are deemed contributions in the acquisition of the lot. Article 147, 2nd paragraph is applicable, as the
lot is deemed owned in common by the common-law spouses in equal shares as the same was acquired during
their cohabitation, without prejudice to the rights of a buyer in good faith and for value.
V
The marriage of Maria Caridad and Alain was declared void by reason of psychological incapacity. It was found
out that the defendant committed acts which hurt and embarrassed the husband and the rest of the family and
failed to observed her duties under Article 68 of the Family Code. The trial court in the decretal portion of the
judgment ruled that “a decree of absolute nullity of marriage shall be issued after liquidation, partition and
distribution of the parties’ properties under Article 147 of the Family Code.” The petitioner contended that the
trial court erred when it ordered that a decree of absolute nullity of marriage shall only be issued after
liquidation, partition and distribution of the parties’ properties under Article 147 of the Family Code. He
contended that Sec. 19(1) of the Rule on Declaration of Absolute Nullity and Annulment of Voidable Marriages
does not apply to Article 147, F.C. Is the contention correct? Why? (10%)
Answer: Albano, p. 131, Diño vs Diño, G.R. No. 178044, January 19, 2011

Yes. The decree of absolute nullity of the marriage shall be issued upon finality of the trial court’s decision
without waiting for the liquidation, partition, and distribution of the parties’ properties under Article 147 of the
Family Code.

The ruling has no basis because Section 19(1) of the Rule does not apply to cases governed under Articles 147
and 148 of the Family Code. Section 19(1) of the Rule provides:
Sec. 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the
decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with
Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and
Distribution of Properties.

The pertinent provisions of the Family Code cited in Section 19(1) of the Rule are:

Article 50. The effects provided for in paragraphs (2), (3), (4) and (5) of Article 43 and in Article 44 shall
also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment
under Articles 40 and 45. xxx

Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as
of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities,
unless the parties, by mutual agreement judicially approved, had already provided for such matters. xxx

It is clear from Article 50 of the Family Code that Section 19(1) of the Rule applies only to marriages which are
declared void ab initio or annulled by final judgment under Articles 40 and 45 of the Family Code. In short,
Article 50 of the Family Code does not apply to marriages which are declared void ab initio under Article 36 of
the Family Code, which should be declared void without waiting for the liquidation of the properties of the
parties.

Since the property relations of the parties is governed by absolute community of property or conjugal
partnership of gains, there is a need to liquidate, partition and distribute the properties before a decree of
annulment could be issued. That is not the case for annulment of marriage under Article 36 of the Family Code
because the marriage is governed by the ordinary rules on co-ownership.

In this case, petitioners marriage to respondent was declared void under Article 3615 of the Family Code and not
under Article 40 or 45. Thus, what governs the liquidation of properties owned in common by petitioner and
respondent are the rules on co-ownership. In Valdes, the Court ruled that the property relations of parties in a
void marriage during the period of cohabitation is governed either by Article 147 or Article 148 of the Family
Code.16 The rules on co-ownership apply and the properties of the spouses should be liquidated in accordance
with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, [p]artition may be made
by agreement between the parties or by judicial proceedings. x x x. It is not necessary to liquidate the properties
of the spouses in the same proceeding for declaration of nullity of marriage.

VI
Mr. BB married Ms. AA in the year 2003. They had three children, R, E and B. In 2009, BB developed a romantic relationship with SB. In 2011, AA
left for the United States. In February 2012, BB and SB lived together as husband and wife. As SB’s father was against the relationship, SB brought
BB to an office in Pasig where they signed a purported marriage contract. SB, knowing BB’s marital status, assured him that the marriage contract
would not be registered. The following properties were acquired during the cohabitation: (a) 37 parcels of land given by BB’s father as advance
inheritance; (b) Lot 1 registered in the name of “BB and SB as spouses”; (c) Lot 2 registered in the name of BB married to SB; (d) Lot 3 registered in
the name of SB married to BB; and (e) Lot 4 registered in the name of SB as a single individual. Later, BB and SB separated and thereafter BB filed
an action for partition of the above-referred properties. The court granted the partition. It ordered that the 37 parcels of land given by BB’s father as
advance inheritance as belonging exclusively to BB. It also ordered that Lot 4 as belonging exclusively to SB. But it ordered that Lots 1, 2, and 3
shall be divided between them under Art. 148 of the Family Code. Is the ruling correct? (10%)

Answer: Go-Bangayan vs. Bangayan, Jr., G.R. No. 201061, July 3, 2013
No, the ruling ordering the division of Lots 1, 2, and 3 is not correct. It is true that Art. 148 of the Family Code
applies in this case because Mr. BB and Ms. SB lived together as husband and wife but Mr. BB was suffering
an impediment at the time he cohabited with Ms. SB; Mr. BB was still married to Ms. AA. Hence, under Art.
148 of the Family Code, only properties acquired through their actual joint contribution shall be part of the co-
owned properties. Hence, only Lot 1 should be divided between them. Lot 2 shall pertain exclusively to BB.
Lots 3 shall pertain exclusively to SB. The fact that the titles of Lot 2 and Lot 3 contain the words “married to”
is of no moment because the same words preceding the name of a person is merely descriptive of the civil status
of the registered owners. Thus, in the absence of proof of actual contribution for either or both common law
spouses, there can be no co-ownership contemplated under Art. 148 of the Family Code. (Go-Bangayan vs.
Bangayan, Jr., G.R. No. 201061, July 3, 2013).
VII
The issue for resolution in the case at bar hinges on the validity of the two marriages contracted by the deceased
SPO4 Santiago S. Cariño, whose “death benefits” is now the subject of the controversy between the two Susans
whom he married. During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two marriages, the
first was on June 20, 1969, with petitioner Susan Nicdao Cariño and the second was on November 10, 1992,
with respondent Susan Yee Cariño with whom he cohabitated starting way back in 1982. In 1988, SPO4
Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonary tuberculosis. He passed
away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses. Both
petitioner and respondent filed claims for monetary benefits and financial assistance pertaining to the deceased
from various government agencies. Petitioner Susan Nicdao was able to collect a total of P146,000.00 from
“MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,” 3 while respondent Susan Yee received a total
of P21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).”

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money against
petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the one
hundred forty-six thousand pesos (P146,000.00). Respondent Susan Yee admitted that her marriage to the
deceased took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the
marriage between petitioner and the deceased. She, however, claimed that she had no knowledge of the
previous marriage and that she became aware of it only at the funeral of the deceased, where she met petitioner
who introduced herself as the wife of the deceased. To bolster her action for collection of sum of money,
respondent contended that the marriage of petitioner and the deceased is void ab initio because the same was
solemnized without the required marriage license.
Is the Susan Yee entitled to one-half of the P146,000.00? (10%)

Answer: Rabuya, pp. 497-499; Cariño vs. Cariño, G.R. No. 132529. February 2, 2001

Yes. Susan Yee is entitled to the one-half of the P146,000.00 or the sum of P73,000.00

In affirming the decision of the trial court, the Court of Appeals relied on the case of Vda. de Consuegra v.
Government Service Insurance System, 20 where the Court awarded one-half of the retirement benefits of the
deceased to the first wife and the other half, to the second wife, holding that:

“... [S]ince the defendant’s first marriage has not been dissolved or declared void the conjugal partnership
established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative
heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive
him. Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has
an interest in the husband’s share in the property here in dispute....” And with respect to the right of the second
wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was
celebrated while the first marriage was still subsisting, still there is need for judicial declaration of such nullity.
And inasmuch as the conjugal partnership formed by the second marriage was dissolved before judicial
declaration of its nullity, “[t]he only just and equitable solution in this case would be to recognize the right of
the second wife to her share of one-half in the property acquired by her and her husband, and consider the
other half as pertaining to the conjugal partnership of the first marriage.”

It should be stressed, however, that the afforested decision is premised on the rule which requires a prior and
separate judicial declaration of nullity of marriage. This is the reason why in the said case, the Court determined
the rights of the parties in accordance with their existing property regime.

VIII
John and Juliet lived together as husband and wife without the benefit of marriage. During their cohabitation,
they acquired properties. Juliet worked in Korea and sent money to John, who deposited them in their joint
account. One of the properties they acquired was a two storey residential house which was renovated. There
was a structure which was annexed to the house which housed a sari-sari store. The relationship turned sour,
hence, they decided to partition the property with Juliet agreeing to pay John P428,870.00 representing his share
of all their properties. When Juliet failed to pay, John sued her for ejectment. The MTC ordered Juliet’s eviction
based on the finding that he alone spent for the construction of the structure. The RTC affirmed the decision but
the CA reversed it ruling that there was no evidence to show that he alone spent for the construction, hence, it
pertained to both of them, thus, Juliet cannot be evicted. Is the ruling of the CA correct? Why? (10%)
Answer: Abing vs. Waeyan, G.R. No. 146294, July 31, 2006

Yes. Any property acquired by common-law spouses during their period of cohabitation is presumed to have
been obtained thru joint efforts and is owned by them in equal shares in the absence of proof to the contrary.
Their property relationship is governed by the rules on co-ownership. Under this regime, they owned their
properties in common “in equal shares”. Being herself a co-owner of the structure in question, Juliet may not be
ejected therefrom. (Abing vs. Waeyan, G.R. No. 146294, July 31, 2006; Art. 147, FC).
IX
X and Y are married. During their coverture, X lived with Z and acquired properties. In case of termination of
the relationship of X and Z, where will his share of the properties acquired during the coverture of X and Z go?
Explain. (10%)

Answer: Juaniza vs. Jose, 89 SCRA 306

It will go to the conjugal partnership of the first marriage. The provision of paragraph 2 of Article 148, Family
Code, contemplates of a state of concubinage or of an adulterous or bigamous relationship. Under the law, if
one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute
community or conjugal partnership existing in such valid marriage. (See Juaniza vs. Jose, 89 SCRA 306).
X
Lucio Morigo and Lucia Barrete were boardmates while they were studying. After school year 1977-78, theylost contact with each other. In 1984,
Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became
sweethearts. In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant
communication. In 1990, Lucia came back to the Philippines and proposed to petition Lucio to join her in Canada. Both agreed to get married, thus
they were married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol. On September 8, 1990, Lucia reported back to
her work in Canada leaving Lucio behind. On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against
appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. On October 4, 1992, Lucio Morigo married
Maria Jececha Lumbago[4] at the Virgen sa Barangay Parish, Tagbilaran City, Bohol. On September 21, 1993, Lucio filed a complaint for judicial
declaration of nullity of his marriage to Lucia. The complaint seeks among others, the declaration of nullity of Lucio’s marriage with Lucia, on the
ground that no marriage ceremony actually took place.

On October 19, 1993, Lucio was charged with Bigamy in an Information filed by the City Prosecutor of Tagbilaran City, with the Regional Trial
Court of Bohol. Lucio submits that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. The petitioner
further argues that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies
punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. The
Office of the Solicitor General (OSG) submits that good faith in the instant case is a convenient but flimsy excuse. The Solicitor General relies upon
the ruling in Marbella-Bobis v. Bobis, which held that bigamy can be successfully prosecuted provided all the elements concur, stressing that under
Article 40 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Is Lucio guily of bigamy?

Answer: Rabuya, p. 493-496; Morigo vs. People, G.R. No. 145226, February 06, 2004; Marbella-Bobis vs.
Bobis, G.R. No. 138509, July 31, 2000; Mercado vs. Tan, G.R. No. 137110, August 1, 2000; (Art. 40, FC)

No. The trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a
solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without
the presence of a solemnizing officer. In other words, for all intents and purposes, reckoned from the date of the
declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused
was, under the eyes of the law, never married.
The first element of bigamy as a crime requires that the accused must have been legally married. But in this
case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak
of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married
from the beginning. The contract of marriage is null; it bears no legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with
Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of
bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to
speak of. The petitioner, must, perforce be acquitted of the instant charge.

The present case is analogous to, but must be distinguished from Mercado v. Tan, G.R. No. 137110, 1 August
2000, 337 SCRA 122. In the latter case, the judicial declaration of nullity of the first marriage was likewise
obtained after the second marriage was already celebrated. We held therein that:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty
of bigamy. This principle applies even if the earlier union is characterized by statutes as void.

It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage
certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have
transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete
merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus,
needs no judicial declaration of nullity. Such act alone, without more, cannot be deemed to constitute an ostensibly valid marriage for which petitioner
might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage.
The law abhors an injustice and the Court is mandated to liberally construe a penal statute in favor of an accused and weigh every circumstance
in favor of the presumption of innocence to ensure that justice is done. Under the circumstances of the present case, we held that petitioner has not
committed bigamy. Further, we also find that we need not tarry on the issue of the validity of his defense of good faith or lack of criminal intent, which
is now moot and academic.
Quiz No. 15 – The Family (Art. 149 - 162, FC)

I
A and B are living together as husband and wife without the benefit of a marriage. May a suit by A against B
prosper without any allegation of earnest efforts towards a compromise being alleged? (10%)
Answer.
Yes, because they are not married. The coverage of family relations under Article 150, F.C. does not include
illegitimate relationships.
II
Gaudencio Guerrero and Pedro G. Hernando are brothers-in-law. The latter filed an accion publiciana against
the former without alleging that earnest efforts were resorted to settle the dispute before the case was filed.
Hernando overlooked such fact and did not file a motion to dismiss, but during the pre-trial, the judge noticed
their relationship, so, he gave five (5) days for Guerrero to file a motion to dismiss. The judge dismissed the
case on the ground of lack of jurisdiction because of the absence of an allegation of previous efforts towards
reconciliation. Is the judge correct? (10%)
Answer.
No. Brothers-in-law are not included in the provisions of Articles 149 and 151 of the Family Code. As early as
two decades ago, it has been held in Gayon vs. Gayon, 36 SCRA 104, that the enumeration of brothers and
sisters as members of the same family, does not comprehend brothers or sisters-in-law; hence, there is no need
to exert efforts towards a compromise before filing the present case. (Gaudencio Guerrero vs. RTC, Branch
XVI, Ilocos Norte, et al. 229 SCRA 274, January 10, 1994 47 SCAD 229)
III
Araceli and Ernesto de Mesa, while they were not yet married, jointly acquired in 1984 a parcel of land where a house was constructed which they
occupied as a family home when they got married. In 1988, Araceli obtained a loan from Claudio and mortgaged the property to secure the payment
of the obligation. She issued a check to pay the loan but it was dishonored, hence, a BP 22 case was filed against her where she was acquitted but
held civilly liable. A writ of execution was issued and the property was levied upon and sold to satisfy the obligation. Claudio was the highest bidder
and a title was issued in his name but leased the property to Araceli and Ernesto but for failure to pay rents, a complaint for ejectment was filed. In
their answer, they contended that Claudio is not the owner because the property being a family home cannot be levied upon as it is exempt from
execution. In the meantime, they filed a complaint to declare the title of Claudio void alleging that the property was their family home which is
exempt from execution, which was dismissed by the RTC and then affirmed by the CA. Is the dismissal correct? Why? (10%)

Answer: Sps. Araceli & Ernesto de Mesa vs. Sps. Claudio & Rufina Acero, et. al., G.R. No. 185064, January
16, 2012
Yes. The subject property became a family residence sometime in January 1987. There is no showing, however,
that the same was judicially or extra-judicially constituted as a family home in accordance with the provisions
of the Civil Code. Still, when the Family Code took effect on August 3, 1988, the subject property became a
family home by operation of law and was thus prospectively exempt from execution. The petitioners were thus
correct in asserting that the subject property was a family home.

Failure to assert and prove that their house is a family home operated as a waiver of such defense or right. In
Honrado vs. CA, 512 Phil 657 (2005), it was said that “while it is true that the family is constituted on a house
and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Art.
153 of the Family Code, such claim for exemption should be set up and proved. As no other time can the status
of a residential house as a family home be set up and proved and its exemption from execution but before the
sale thereof at public auction. Failure to do so would estop the party from later claiming the exemption.” For all
intents and purposes, the petitioners’ negligence or omission to assert their right within a reasonable time gives
rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption under
Art. 153 of the Family Code is a personal right, it is incumbent upon the petitioners to invoke and prove the
same within the prescribed period and it is not the sheriff’s duty to presume or raise the status of the subject
property as a family home. (Sps. Araceli & Ernesto de Mesa vs. Sps. Claudio & Rufina Acero, et. al., G.R. No.
185064, January 16, 2012)

IV
Judgment was rendered by the Court of Appeals ordering defendant to pay a sum of money to plaintiff. The
debt or the liability, which was the basis of the judgment that arose, was incurred at the time of the vehicular
accident on March 16, 1976 and the money judgment, arising therefrom rendered by the appellate court on 29
January 1988. The judgment having become final and executory, a writ of execution was issued by the Regional
Trial Court to satisfy the judgment on the goods and chattels of defendants. The sheriff levied on a parcel of
residential land. A motion to quash the levy on execution was filed by the defendant, alleging therein that the
residential land is where the family home is built since 1969 which is, prior to the commencement of the case, is
exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code. The trial
court denied the motion to quash. Is the trial court correct? (10%)
Answer. Modequillo vs. Breva, G.R. No. 86355, May 31, 1990.
Yes. The residential house and lot of defendant was not constituted as a family home, whether judicially or
extra-judicially under the Civil Code. It became a family home by operation of law under Article 153 of the
Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3,
1988.
Defendant’s contention that it should be considered as a family home from the time it was occupied by him and
his family in 1969 is not well-taken. Under Article 162 of the Family Code, “The provisions of this Chapter
shall also govern existing family residences insofar as said provisions are applicable.” It does not mean that
Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed
to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family
Code and are exempt from execution for the payment of obligations incurred before the effectivity of the
Family Code.
Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code are
considered family homes and are prospectively entitled to the benefits accorded to a family home under the
Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect.
Defendant’s family home is not exempt from the execution of the money judgment. The debt or the liability,
which was the basis of the judgment that arose, was incurred at the time of the vehicular accident on March 16,
1976 and the money judgment, arising therefrom rendered by the appellate court on 29 January 1988. Both
preceded the effectivity of the Family Code on 3 August 1988. This case does not fall under the exemptions
from execution provided in the Family Code.
Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as
a family residence. There is no need to constitute the same judicially as was required in the Civil Code. If the
family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the
creditors should take the necessary precautions to protect their interest before extending credit to the spouses or
to the head of the family who owns the home.
Article 155 of the Family Code also provides, “The family home shall be exempt from execution, forced sale or
attachment except:
1) For non-payment of taxes;
2) For debts incurred prior to the constitution of the family home;
3) For debts secured by mortgages on the premises before or after such constitution; and
4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered
service or furnished material for the construction of the building. (243a)”

The exemption provided is effective from the time of the constitution of the family home as such and lasts as
long as any of its beneficiaries actually reside therein. (Manacop vs. CA, G.R. No. 104875, November 13,
1992).
If the owner of the family home secured a debt using it as a security for the payment of his obligation, and if he does not pay them, the creditors can
sue him and attach the family home, or if judgment has already been rendered and it has already become final and executory, it can be levied upon
and sold to answer for such debt. The creditor can also foreclose the mortgage if he wants to. These things can be done as they are allowed by law by
way of exception to the rule against attachment, etc.

If the owner of the family home constructed the house out of materials supplied by friends; labor was not paid; the architects, etc. were not paid, they
can sue the owner for payment and can even attach the family home or levy upon it, if judgment has already been rendered. These acts are not
prohibited by law. The reason is obvious as no one shall enrich himself at the expense of another. It must be said that the main purpose of the law on
the constitution of the family home is to place it beyond the reach of ordinary creditors and thus encourage the building of the family home which is
the seat and symbol of family affections. (Capistrano, Civil Code of the Phils., 1950 ed., p. 209).

V
M and F constituted a family home in Manila. It is their only property. They lived in the family home together
with their children A and B. M and F died in an accident on June 1, 2012. A now wants to extrajudicially
partition the property constituted as a family home but B refused to enter into such extrajudicial partition. Can
A insist on the partition? (10%)
Answer.
No, the family home shall continue despite the death of M and F. The heirs cannot partition the same. However,
Mr. A can file an action for judicial partition and the court can grant the same only if there is compelling reason.
(Art. 159, FC).
VI
May a house and lot be considered a family home if the land is not owned by the spouses? Explain. (10%)
Answer.
No. There can be no question that a family home is generally exempt from execution, Rule 39, Sec. 13(a)
provided it was duly constituted as such. The family home must be constituted on property owned by the
persons constituting it. Indeed as pointed out in Kelly, Jr. vs. Planters Products, Inc., G.R. No. 172263, July 9,
2008, 557 SCRA 499), “the family home must be part of the properties of the absolute community or the
conjugal partnership, or of the exclusive properties of either spouse with the latter’s consent, or on the property
of the unmarried head of the family.” (Art. 156, FC). In other words:
The family home must be established on the properties of (a) the absolute community, or (b) the conjugal
partnership, or (c) the exclusive property of either spouse with the consent of the other. It cannot be established
on property held in co-ownership with third persons. However, it can be established partly on community
property, or conjugal property and partly on the exclusive property of either spouse with the consent of the
latter.
If constituted by an unmarried head of a family, where there is no communal or conjugal property existing, it
can be constituted only on his or her own property. (Simeon Cabang, et. al. vs. Basay, G.R. No. 180587, May
20, 2009).
VII
A and B owned a residential lot with a house built thereon where their family resided. They were engaged in the
construction business and had indebtedness in the amount of P3.3M pesos; and when they failed to pay, their
company and themselves were sued on March 17, 1986. They entered into a compromise but failed to pay
according to the judgment approving the compromise. In the meantime, they had already transferred to the USA
and just left a caretaker in their home. Since the judgment against them was partially satisfied through execution
on their chattels, the issue that arose was whether the writ of execution can be enforced against their house and
lot. Rule on the issue. (10%)
Answer.
The writ of execution can be enforced against their house and lot because the liability was incurred and the writ
of execution was issued prior to the effectivity of the Family Code on August 3, 1988. This is especially so that
there was no showing that the subject property was constituted as a family home in accordance with the Civil
Code, hence, it is not protected by the Family Code.
Besides, the law provides that occupancy of the family home, either by the owner or by any of the beneficiaries,
must be actual. Such beneficiaries are the husband and wife, or an unmarried person who is the head of the
family, their parents, ascendants, descendants, brothers and sisters, legitimate or illegitimate, living in the
family home. It may also include the in-laws. But the law definitely excludes maids and overseers. Hence, the
occupancy of the family home by an overseer is insufficient compliance with the law. However, if the in-laws
were left therein, the family home can still be exempted because they are considered as other ascendants who
are likewise beneficiaries of the family home. (Manacop vs. CA, et. al., G.R. No. 97898, August 11, 1997, 85
SCAD 491).
VIII
A and B constituted a family home, borrowing materials from X which they failed to pay. When sued, they
interposed the defense that the family home cannot be attached because it is exempt from attachment or levy.
Decide. (10%)
Answer.
I would like to decide in favor of X because the obligation constitutes debts due to materialmen who rendered
service or furnished materials for the construction of the house of A and B. This is one of the instances when the
family home is not exempt from attachment. (Art. 155, FC)
IX
Is there a need for judicial or extrajudicial constitution of the family home? Why? (10%)
Answer.
No more, because the family home is constituted once it is occupied as a family residence and while any of its
beneficiaries are actually residing therein. (Art. 153, FC).
X
In September 1988, a man and his wife bought a parcel of land in Filinvest Homes, Quezon City for P150,000,
built a house thereon for P350,000 and immediately thereafter, constituted the property into a family home. In
1989, because of the increase in land values and the improvements subsequently introduced thereon, the family
home acquired an actual worth of P700,000. In this year also, a third person obtained a judgment for damages
against the spouses in the sum of P200,000 as a result of an automobile accident which happened in 1987. The
third person applied to the court which rendered the judgment for an order directing the sale of the family home
under execution. If you were the judge, how would you decide the case? (10%)
Answer.
The family home is not exempted because the debt was incurred prior to the constitution of the family home in
accordance with Art. 155 of the Family Code. In the instant case, the debt was incurred in 1987 while the family
home was constituted by operation of law on September 1988.
Quiz No. 16 – Paternity and Filiation (Art. 163 - 182, FC)

I
Julie had a relationship with a married man who had legitimate children. A son was born out of that illicit
relationship in 1981. Although the putative father did not recognize the child in his certificate of birth, he
nevertheless provided the child all the support he needed and spent time regularly with the child and his mother.
When the man died in 2000, the child was already 18 years old so he filed a petition to be recognized as an
illegitimate child of the putative father and sought to be given a share in his putative father's estate. The legitimate
family opposed, saying that under the Family Code his action cannot prosper because he did not bring the action
for recognition during the lifetime of his putative father.

a) If you were the judge in this case, would how you rule? (5%)
b) Wishing to keep the peace, the child during the pendency of the case decides to compromise with his
putative father's family by abandoning his petition in exchange for 1/2 of what he would have received as
inheritance if he were recognized as an illegitimate child. As the judge, would you approve such a
compromise? (5%)

SUGGESTED ANSWER: 2015 Bar Exam

a) If I were the judge, I will not allow the action for recognition filed after the death of the putative father. Under
the Family Code, an illegitimate child who has not been recognized by the father in the record of birth, or in
a private handwritten instrument, or in a public document and may prove his filiation based on open and
continuous possession of the status of an illegitimate child but pursuant to Article 175, he or she must file the
action for recognition during the lifetime of the putative father. The provision of Article 285 of the Civil Code
allowing the child to file the action for recognition even after the death of the father will not apply because in
the case presented, the child was no longer a minor at the time of death of the putative father.

b) No, I will not approve the compromise agreement because filiation is a matter to be decided by law. It is not
for the parties to stipulate whether a person is a legitimate or illegitimate child of another. (De Jesus v. Estate
of Dizon 366 SCRA 499) In all cases of illegitimate children, their filiation must be duly proved. (Article 887,
Civil Code)

ALTERNATIVE ANSWER: Yes, I would approve the compromise because it is no longer considered future
inheritance. What the law prohibits is a compromise with respect to future legitime. In this case, the father is
already dead so the compromise is considered valid.

II
In 1997, B and G started living together without the benefit of marriage. The relationship produced one offspring,
Venus. The couple acquired a residential lot in Parañaque. After four (4) years or in 2001, G having completed
her 4-year college degree as a fulltime student, she and B contracted marriage without a license. The marriage of
B and G was, two years later, declared null and void due to the absence of a marriage license. Is Venus legitimate,
illegitimate, or legitimated? Explain briefly. (10%)

SUGGESTED ANSWER: 2010 Bar Exam

Venus is illegitimate. She was conceived and born outside a valid marriage. Thus, she is considered illegitimate
(Art 165, Family Code). While Venus was legitimated by the subsequent marriage of her parents, such
legitimation was rendered ineffective when the said marriage was later on declared null and void due to absence
of a marriage license. Under Article 178 of the Family Code, “legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.” The inclusion
of the underscored portion in the Article necessarily implies that the Article's application is limited to voidable
marriages. It follows that when the subsequent marriage is null or void, the legitimation must also be null and
void. In the present problem, the marriage between B and G was not voidable but void. Hence, Venus has
remained an illegitimate child.

III
Spouses B and G begot two offsprings. Albeit they had serious personality differences, the spouses continued to
live under one roof. B begot a son by another woman. G also begot a daughter by another man.

(A). If G gives the surname of B to her daughter by another man, what can B do to protect their legitimate
children's interests? Explain. (5%)
(B). If B acquiesces to the use of his surname by G’s daughter by another man, what is/are the consequence/s?
Explain. (5%)

SUGGESTED ANSWER: 2010 Bar Exam

(A). B can impugn the status of G's daughter by another man as his legitimate daughter on the ground that for
biological reason he could not have been the father of the child, a fact that may be proven by the DNA test. Having
been born during the marriage between B and G, G's daughter by another man is presumed as the child of B under
Article 164 of the Family Code. In the same action to impugn, B can pray for the correction of the status of the
said daughter in her record of birth.

(B). If B acquiesces and does not file the action to impugn the legitimacy of the child within the prescriptive
period for doing so in Article 170 of the Family Code, G's daughter by another man shall be conclusively
presumed as the legitimate daughter of B by G.

IV
X and Y are living together as husband and wife without the benefit of a marriage. They begot a child Z who
married A. Z and A has a child named B. In 1989, Z died. In 1990, X and Y got married. In 1991, a son named
ZZ of X and Y was born. When X and Y died intestate, ZZ executed an Extrajudicial Settlement of Estate
adjudicating to himself as the sole heir of X and Y. Is ZZ correct? (10%)

Answer:

No. Art. 181 of the Family Code provides, “The legitimation of children who died before the celebration of the
marriage shall benefit their descendants.” In the instant case, Z died before the marriage of X and Y resulting to
Z’s legitimation and shall benefit B, his descendant. Thus, B can represent his father Z in the inheritance of his
grandparents. Since a legitimated child has the same right as a legitimate child, B has now the right to inherit by
right of representation to ½ of the estate while the other ½ of the estate will be ZZ’s inheritance.

V
Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started to
live together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents
forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage,
Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth
to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liason with Roderick and in
one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick,
without a marriage license, claiming that they have been continuously cohabiting for more than 5 years.
(A) What is the filiation status of Laica? (5%)
(B) Can Laica bring an action to impugn her own status on the ground that based on DNA results, Roderick is her
biological father? (3%)
(C). Can Laica be legitimated by the marriage of her biological parents? (2%)
SUGGESTED ANSWER: 2008 Bar Exam

(A) Laica is legitimate because children conceived or born during the marriage of the parents are presumed to be
legitimate (Art. 164, FC).

(B) No. Laica cannot bring an action to impugn her own status. In Liyao Jr. v. Tanhoti-Liyao, G.R. No. 138961,
07 March 2002, the Supreme Court ruled that impugning the legitimacy of the child is a strictly personal right of
husband, except: (a) when the husband died before the expiration of the period fixed for bringing the action; (b)
if he should die after the filing of the complaint, without having desisted therefrom, or (c) if the child was born
after the death of the husband. Laica's case does not fall under any of the exceptions.

(C)) No. Laica cannot be legitimated by the marriage of her biological parents because only children conceived
and born outside of wedlock of parents who at the time of the conception of the former were not disqualified by
any impediment to marry each other may be legitimated (Art. 177, FC). In this case, there is an impediment and
that is, Faye is married to Brad at the time of the conception of Laica.

VI
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.
Assuming that Aimee is successful in declaring her former marriage void, and Andy and Aimee subsequently
married each other, would Gianna be legitimated? (10%)

SUGGESTED ANSWER: 2008 Bar Exam

No. Gianna cannot be legitimated by the subsequent marriage of Andy and Aimee. Art. 177 of the FC provides
that "only children conceived and born outside of wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry each other may be legitimated." In the present case, a
legal impediment was existing at the time of the conception of Gianna. Her mother, Aimee, was still in the process
of securing judicial declaration of nullity on her marriage to her ex-husband.

VII
Petitioner D, a minor represented by her mother and guardian ad litem M, filed a case for recognition and support
with the Juvenile and Domestic Relations Court against private respondent F. The latter denied paternity; so the
parties agreed to a blood-grouping test conducted by the NBI. The result of the blood-grouping test indicated that
D could have been the possible offspring of F and M. The trial court declared D, as a child of F, thus entitling her
to his monthly support. F appealed to the CA, questioning the trial court’s failure to appreciate the result of the
blood-grouping test arguing that the result of the test should have been conclusive and undisputable evidence of
his non-paternity. The CA upheld F’s contention and reversed the trial court decision. It reaches the Supreme
Court and the issue is whether or not the admissibility and conclusiveness of the result of blood-grouping test to
prove non-paternity is accurate. Rule on the issue raised. (10%)

Answer. Jao vs. CA, 152 SCRA 359

Yes. There is now almost a universal scientific agreement that the blood-grouping tests are conclusive as to non-
paternity, that is, the fact that the blood type of the child is a possible product of the mother and the alleged father
does not conclusively prove that the child is born by such parents, but if the blood type of the child is not the
possible blood type when blood type of the mother and that of the alleged father after it had been cross-matched,
then the child cannot possibly be that of the alleged father. Accordingly, the court affirms the decision of the CA
and hold that the result of the blood-grouping test involved in the case at bar are admissible and conclusive on the
non-paternity of respondent F vis-á-vis petitioner D. The result of such test is to be accepted, therefore, accurately
reflecting a scientific fact.

Source of the presumption of legitimacy of a child.

The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of conception. (People vs. Giberson, 197
Phil. 509). To overthrow this presumption on the basis of Article 166(1)(b) of the Family Code, it must be shown beyond reasonable doubt that there
was no access that could have enabled the husband to father the child. Sexual intercourse is to be presumed where personal access is not disproved,
unless such presumption is rebutted by evidence to the contrary. The presumption is quasi-conclusive and may be refuted only by the evidence of
physical impossibility of coitus between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child.
To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible. This may take place, for instance,
when they reside in different countries or provinces and they were never together during the period of conception. Or, the husband was in prison during
the period of conception, unless it appears that sexual union took place through the violation of prison regulations. (1 Manresa 492-500).

VIII
“A” and “B”, a man and woman not related to each other, both single and 16-years old, had an illicit relation. A
child “C” was born out of that relation. Subsequently, “A” married “X”. Notwithstanding the marriage, “A” and
“B” continued their illicit relation, and two years later, another child “D” was born to them. After the death of
“X”, “A” married “B”.
a) What is the legal status of the child “C”? (5%) – legitimated child of A and B
b) What is the legal status of the child “D”? (5%) –illegitimate child of A and B
Answer.
Under the Civil Code, “C” is a natural child who may be legitimated while “D” is an illegitimate child not natural
(spurious child) who may not be legitimated. Said classifications were abolished under the Family Code. Thus,
both “C” and “D” are similarly classified as illegitimate children. However, “C” may be legitimated but “D” may
not be legitimated.
According to Arts. 177 and 178 of the Family Code, children born outside of wedlock of parents, who, at the time
of the conception of the former, were not disqualified by any impediment to marry each other, or were so
disqualified only because either or both of them were below eighteen (18) years of age, maybe legitimated (As
amended by RA 9858). It is clear that “C” falls within the category of a legitimated child since all the requisites
of legitimation under the Family Code are present. In the first place, he is a natural child; in the second place,
there was a subsequent marriage of the parents to each other; and in the third place, he was recognized by both of
his parents as their child after the celebration of their marriage. Consequently, he is now a legitimated child.
However, in the case of “D”, it is different. Since he was conceived at a time when his father “A” was already
married to “X”, he is clearly an illegitimate child not natural who can never be legitimated. The presumption is
not applicable because there is no issue of who is the father.

IX
A widow married 140 days after the death of her husband. A child was born to her 170 days after the solemnization
of the second marriage. What is the status of the child? (10%)

Answer:

The child is the legitimate child of the second husband. The rule established in the first paragraph of Article 168
is not applicable because under the premises given, the child was born not within but after 300 days after the
death of the first husband.

X
Carolina Alejo had an affair with Ernesto Bernabe. A son was born to them in September 1981 whom they named
Adrian. Ernesto died in 1993 leaving Ernestina as his sole legitimate heir. In 1994, Carolina filed an action to
compel Ernestina to recognize Adrian as an illegitimate child of Ernesto. The trial court dismissed the action on
the ground that under the Family Code which took effect in 1988, an action to compel recognition of an
illegitimate child must be brought before the death of the putative parent. Since Ernesto has already died, the
action must be abated. On appeal, the CA ruled that since Adrian was born in 1981, his right to prove his
illegitimate filiation is governed not by the Family Code but by the New Civil Code. Article 285 of the Civil Code
allows an illegitimate child to file an action to compel recognition within 4 years from the child’s attainment of
majority if the putative parent died during the child’s minority. The CA ruled that the change introduced by the
Family Code did not affect the right of Adrian because his right under Article 285 has became a vested right.
Ernestina appealed to the Supreme Court where the question raised was whether the Family Code took away the
right of Adrian to compel his recognition after the death of his putative father. Rule on the question raised? (10%)

Answer: Bernabe vs. Alejo GR No. 140500, January 21, 2002

No, it has not. The right granted by Article 285 to illegitimate children who were minors at the time of the death
of the putative parent to bring an action for compulsory recognition within 4 years from attaining the age of
majority, is a substantive right that vests from the time of the illegitimate child’s birth. Therefore, the Family
Code did not impair or take away the right of Adrian to file the present petition for recognition despite the death
of his putative father.
Quiz No. 17 – Adoption & Support (Art. 183 – 193 & Art. 194 - 208, FC; Republic Act No. 8552 or the
Domestic Adoption Act of 1998; Republic Act No. 8043 or the Inter-Country Adoption Act)

I
Tess, a former Filipina, now a naturalized American, as the sole petitioner, filed a petition for adoption of her
three-year-old nephew, one of the eleven children of her destitute sister in Tondo. She had been supporting the
child since birth, and being childless, she and her husband Gary have come to love him as their own son. They
are both well-employed in the United States. If you were the judge, will you grant the adoption? Explain. (10%)
Answer.
No, I will not grant the adoption. Sec. 7 of the Domestic Adoption Act of 1998 provides that the husband and
wife shall jointly adopt. Hence, Tess and Gary should have jointly filed the Petition to adopt the nephew of
Tess. Although there are exceptions to this rule under Sec. 7, it does not appear that the present case falls under
one of the exceptions.
II
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? (10%)
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 placement. It is only after the lapse of the trial
custody that the decree of adoption can be issued.
III
Despite several relationships with different women, Andrew remained unmarried. His first relationship with
Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan.
His third, with Elena, bore him no children although Elena has a daughter Jane, from a previous relationship.
His last, with Fe, produced no biological children but they informally adopted without court proceedings,
Sandy's now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted
to them by the midwife who attended to Sandy's birth. All the children, including Amy, now live with Andrew
in his house.
1. Is there any legal obstacle to the legal adoption of Amy by Andrew? (5)
2. To the legal adoption of Sandy by Andrew and Elena? (5%)
Answer.
1. Yes, there is a legal obstacle to the legal adoption of Amy by Andrew. Under Sec. 9(d) of RA 8552, the
New Domestic Adoption Act of 1998, the written consent of the illegitimate sons/daughters, ten (10)
years of age or over, of the adopter, if living with said adopter and the latter's spouse, if any, is necessary
to the adoption. All the children of Andrew are living with him. Andrew needs to get the written consent
of Jon and Ryan, who are all ten (10) years old or more. Sandy's consent to Amy's adoption is not
necessary because she was not legally adopted by Andrew. Jane's consent is likewise not necessary
because she is not a child of Andrew.
2. Yes, there is legal obstacle to the legal adoption of Sandy by Elena. Sandy, an orphan since birth, is
eligible for adoption under Sec. 8(f) of RA 8552, provided that Andrew obtains the written consent of
the other children mentioned above, including Amy and Elena obtains the written consent of Jane, if she
is over ten years old (Sec. 9(d), RA 8552).
IV
A Filipino couple, Mr. and Mrs. BM, Jr., decided to adopt YV, an orphan from St. Claire’s orphanage in New
York City. They loved and treated her like a legitimate child for they have none of their very own. However,
BM, Jr., died in an accident at sea, followed to the grave a year later by his sick father, BM, Sr. Each left a
sizable estate consisting of bank deposits, lands and buildings in Manila. May the adopted child, YV, inherit
from BM, Jr.? May she also inherit from BM, Sr.? Is there a difference? Why? Explain. (10%)
Answer: Successional Rights of Adopted Child (2004)
YV can inherit from BM, Jr. The succession to the estate of BM, Jr. is governed by Philippine law because he
was a Filipino when he died (Article 16, Civil Code). Under Article 1039 of the Civil Code, the capacity of the
heir to succeed is governed by the national law of the decedent and not by the national law of the heir. Hence,
whether or not YV can inherit from BM, Jr. is determined by Philippine law. Under Philippine law, the adopted
inherits from the adopter as a legitimate child of the adopter.
YV, however, cannot inherit, in his own right, from the father of the adopter, BM, Sr., because he is not a legal
heir of BM, Sr. The legal fiction of adoption exists only between the adopted and the adopter. (Teotico v. Del
Val 13 SCRA 406 [1965]). Neither may he inherit from BM, Sr. by representing BM, Jr. because in
representation, the representative must be a legal heir not only of the person he is representing but also of the
decedent from whom the represented was supposed to inherit (Article 973, Civil Code).

V
Chua Ching Beng and Pilar Atilano were joined in lawful wedlock. The couple sailed for Manila and
established their residence with the parents of the husband. They went to Zamboanga City to pay the parents of
the wife a visit, and it seems that he was prevailed upon by the wife's parents to return to Manila leaving her
behind, with the understanding that she would follow him later, which apparently she failed to do.

Pilar filed with the Court of First Instance of Zamboanga a complaint for support against her husband, alleging
that they had been estranged and living separately by reason of incessant marital bickerings and quarrels
brought about by incompatibility of temperament and above all, by defendant's inability to provide for
themselves a home separate from the latter's parents; that she was staying with her parents in Zamboanga City,
without employment nor had she any property of her own. She therefore, prayed that as defendant was under
legal obligation to support her, he be ordered to give her a monthly allowance from the date of the filing of the
complaint.

Defendant averred that while he was not evading his obligation to support her, he preferred to fulfill said duty
by receiving and maintaining her in Manila; that as the husband, defendant had the right to fix the residence of
his family, and he would even be willing to establish a conjugal dwelling in Manila separate from that of his
parents if that was the plaintiff's desire.
a. In accordance with Art. 204 of the Family Code, what are the two options given to the person obliged to
given support on how support be given? (5%)
b. In the instant case, is the second option feasible? (5%)

Answer: Art. 204, FC; Atilano vs. Chua Ching Beng, G.R. No. L-11086, March 29, 1958

a. to pay the allowance fixed and to receive and maintain the recipient in the family dwelling the person
who has the right to receive support
b. Yes. The Supreme Court does not think that misunderstanding with in-laws, who may be considered
third parties to the marriage, is the moral or legal obstacle that the lawmakers contemplated in the
drafting of said provision. It gives the defendant husband, Chua Ching Beng, the option of supporting
his wife at their conjugal dwelling apart from the home of the parents of the husband. Should plaintiff
wife refuse to abide by the terms of this decision, then the defendant-appellant shall be considered
relieved from the obligation of giving any support to his wife.

VI
Spouses Esteban and Maria decided to raise their two (2) nieces, Faith and Hope, both minors, as their own
children after the parents of the minors died in a vehicular accident.

Ten (10) years after, Esteban died. Maria later on married her boss Daniel, a British national who had been living
in the Philippines for two (2) years.
With the permission of Daniel, Maria filed a petition for the adoption of Faith and Hope. She did not include
Daniel as her co-petitioner because for Maria, it was her former husband Esteban who raised the kids.

If you are the judge, how will you resolve the petition? (10%)

SUGGESTED ANSWER: 2014 Bar Exam

I will dismiss the petition for adoption. The rule is that the husband and wife must jointly adopt and there are only
three recognized exceptions to joint adoption by the husband and wife: 1) if one spouse seeks to adopt the
legitimate child of the other; 2) if one spouse seeks to adopt his or her own illegitimate child; 3) if the spouses are
legally separated. The case of Maria and Daniel does not appear to fall under any of the recognized exceptions,
accordingly the petition filed by the wife alone should be dismissed.

VII
Despite several relationships with different women, Andrew remained unmarried. His first relationship with
Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan.
His third, with Elena, bore him no children although Elena has a daughter Jane, from a previous relationship.
His last, with Fe, produced no biological children but they informally adopted without court proceedings,
Sandy's now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted
to them by the midwife who attended to Sandy's birth. All the children, including Amy, now live with Andrew
in his house.

a) In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Jane, and Sandy
assuming that all of them have the means to support him? (5%)
b) Can Amy, Jon, Ryan, Jane, and Sandy legally claim support from each other? (5%)

Answer: 2008 Bar Examination

a) Andrew can claim support from them all, except from Sandy and Jane, who is not his child, legitimate,
illegitimate or adopted.
b) Amy, Jon and Ryan, can legally claim support from each other under Art. 196 of the FC which provides that
brothers and sisters not legitimately related, whether of the full or half-blood, are bound to support each other
except when the need for support is due to a cause imputable to the claimant’s fault or negligence. Jane and
Sandy, however, cannot legally claim support from each other and from Amy, Jon and Ryan because they are
not related to any of them.

VIII
A wife was living apart from her husband and had been grated allowance by the court. It turned out that the
amount allowed her was far in excess of her needs. One day, when the wife asked for her regular monthly
support, the husband claimed that in view of excessive payments already made to her, her current claim for
support could not be considered favorably. In other words, the husband wanted her to get her current support
from the excessive payments previously made to her. Is the husband’s contention correct or should the wife be
given her current allowance? (10%)
Answer: Paras, pp. 767-768; Gorayeb vs. Hashim, 47 Phil. 87
The wife should be given her current allowance. Excessive payments made under a valid although erroneous
orders cannot compensate or offset claims for current support.
IX
In 1984, Eva, a Filipina, went to work as a nurse in the USA. There, she met and fell in love with Paul, an
American citizen, and they got married in 1985. Eva acquired American citizenship in 1987. During their
sojourn in the Philippines in 1990, they filed a joint petition for the adoption of Vicky, a 7-year old daughter of
Eva's sister. The government, through the Office of the Solicitor General, opposed the petition on the ground
that the petitioners, being both foreigners, are disqualified to adopt Vicky.
a) Is the government's opposition tenable? Explain. (4%)
b) Would your answer be the same if they sought to adopt Eva's illegitimate daughter? Explain. (3%)
c) Supposing that they filed the petition to adopt Vicky in the year 2000, will your answer be the same? Explain.
(3%)
SUGGESTED ANSWER: Qualification of Adopter (2005)
a) No. The government's position is untenable. Under paragraph 3, Article 184 of the Family Code, an alien, as
a general rule cannot adopt. However, an alien who is a former Filipino citizen and who seeks to adopt a
relative by consanguinity is qualified to adopt, (par. 3[a], Art. 184, Family Code)
In the given problem, Eva, a naturalized American citizen would like to adopt Vicky, a 7-year old daughter of
her sister. Thus, under the above-cited provision, Eva is qualified to adopt Vicky.
b) My answer will still be the same. Paragraph 3(a) of Article 184 of the Family Code does not make any
distinction. The provision states that an alien who is a former Filipino citizen is qualified to adopt a relative by
consanguinity.
c) Yes, my answer will still be the same. Under Sec. 7(b), Art. III of the New Domestic Adoption Act, an alien
who possesses all the qualifications of a Filipino national who is qualified to adopt may already adopt provided
that his country has diplomatic relations with the Philippines, that he has been living in the Philippines for at
least three (3) continuous years prior to the filing of the application for adoption and maintains such residence
until the adoption decree is entered, that he has been certified by his diplomatic or consular office or any
appropriate government agency that he has the legal capacity to adopt in his country, and that his government
allows the adoptee to enter his country as his adopted child.
X
An adopted child died intestate survived by his wife (W), two illegitimate children, X & Y, and adopter (A). If
the estate of the adopted child is P12 million, how should it be distributed? (10)
Answer: Art. 190 (4), FC.
Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules:
Xxx
(4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall
divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the
surviving spouse, and one-third by the adopters;
Divide into three parts:
P 4M – for wife (W)
P 4M – illegitimate children with P2M for X and P2M for Y
P4M – for adopter A
Quiz No. 18 – Parental Authority (Art. 209 - 233, FC)

I
Give ten (10) examples of compelling reason where the mother of a child may be declared unsuitable to have
custody to her child. (10%)

Answer: 2006 Bar Exam; Agnes Gamboa-Hirsh vs. CA, et. al., G.R. No. 174485, July 11, 2007; Luna v. CA
137 SCRA 7 [1985]); Espiritu vs. CA, 242 SCRA 362[1995]

The mother is declared unsuitable to have custody of her children in one or more of the following instances:

a. Neglect
b. Abandonment
c. Unemployment
d. Immorality (Espiritu vs. CA, 242 SCRA 362[1995])
e. Alcoholism; Habitual drunkenness
f. Drug Addiction
g. Maltreatment of the child
h. Insanity
i. Affliction of the mother with communicable disease
j. Grave physical handicap
k. Serious and credible threat by the child to kill herself or run away from home if she should be separated
from her grandparents and forced to live with her biological parentss (Luna v. CA 137 SCRA 7 [1985])

II
If during class hours, while the teacher was chatting with other teachers in the school corridor, a 7 year old male
pupil stabs the eye of another boy with a ball pen during a fight, causing permanent blindness to the victim, who
could be liable for damages for the boy’s injury: the teacher, the school authorities, or the guilty boy’s parents?
Explain. (10%)

SUGGESTED ANSWER: Parental Authority; Special Parental Authority; Liability of Teachers (2003 Bar
Exam)

The school, its administrators, and teachers have special parental authority and responsibility over the minor
child while under their supervision, instruction or custody (Article 218, FC). They are principally and solidarily
liable for the damages caused by the acts or omissions of the unemancipated minor unless they exercised the
proper diligence required under the circumstances (Article 219, FC).

In the problem, the TEACHER and the SCHOOL AUTHORITIES are liable for the blindness of the victim,
because the student who caused it was under their special parental authority and they were negligent. They were
negligent because they were chatting in the corridor during the class period when the stabbing incident
occurred. The incident could have been prevented had the teacher been inside the classroom at that time. The
guilty boy’s PARENTS are subsidiarily liable under Article 219 of the Family Code.

III
Distinguish briefly but clearly between: Substitute parental authority and special parental authority. (10%)

SUGGESTED ANSWER: Parental Authority; Substitute vs. Special (2004 Bar Exam)

In substitute parental authority, the parents lose their parental authority in favor of the substitute who acquires it
to the exclusion of the parents.

In special parental authority, the parents or anyone exercising parental authority does not lose parental
authority. Those who are charged with special parental authority exercise such authority only during the time
that the child is in their custody or supervision.

Substitute parental authority displaces parental authority while special parental authority concurs with parental
authority.
IV
Rodolfo, married to Sharon, had an illicit affair with his secretary, Nanette, a 19-year old girl, and begot a baby
girl, Rona. Nanette sued Rodolfo for damages: actual, for hospital and other medical expenses in delivering the
child by caesarean section; moral, claiming that Rodolfo promised to marry her, representing that he was single
when, in fact, he was not; and exemplary, to teach a lesson to like-minded Lotharios. When Rona reaches seven
(7) years old, she tells Rodolfo that she prefers to live with him, because he is better off financially than
Nanette. If Rodolfo files an action for the custody of Rona, alleging that he is Rona’s choice as custodial parent,
will the court grant Rodolfo’s petition? Why or why not? (10%)

SUGGESTED ANSWER: Parental Authority; Illegitimate Minor Child (2009 Bar exam)

No, because Rodolfo has no parental authority over Rona. He who has the parental authority has the right to
custody. Under the Family Code, the mother alone has parental authority over the illegitimate child. This is true
even if illegitimate father recognized the child and even though he is giving support for the child. To acquire
custody over Rona, Rodolfo should first deprive Nanette of parental authority if there is ground under the law,
and in a proper court proceeding. In the same action, the court may award custody of Rona to Rodolfo if it is for
her best interest.

V
Gigolo entered into an agreement with Majorette for her to carry in her womb his baby via in vitro fertilization.
Gigolo undertook to underwrite Majorette’s prenatal expenses as well as those attendant to her delivery. Gigolo
would thereafter pay Majorette P2 million and, in return, she would give custody of the baby to him. After
Majorette gives birth and delivers the baby to Gigolo following her receipt of P2 million, she engages your
services as her lawyer to regain custody of the baby. Who of the two can exercise parental authority over the
child? Explain. (10%)

SUGGESTED ANSWER: Parental Authority; In Vitro Fertilization (2010 Bar Exam)

Majorette, the mother, can exercise parental authority. Since the child was born out of wedlock, the child is
illegitimate and the mother has the exclusive parental authority and custody over the child. (Art. 176, FC)

ALTERNATIVE ANSWER:

Gigolo can exercise parental authority over the child. Majorette has no blood relation to the child. She is just a
“carrier” of the child.

VI
St. Marys Academy conducted an enrollment drive. A facet of the enrollment campaign was the visitation of
schools from where prospective enrollees were studying. As a student of St. Marys Academy, Sherwin
Carpitanos was part of the campaigning group. On the fateful day, Sherwin, along with other high school
students were riding in a Mitsubishi jeep owned by Vivencio Villanueva on their way to Larayan Elementary
School, Larayan, Dapitan City. The jeep was driven by James Daniel II, then 15 years old, and a student of the
same school. The latter drove the jeep in a reckless manner and as a result the jeep turned turtle. Sherwin
Carpitanos died as a result of the injuries he sustained from the accident. It was shown that the accident was due
to the detachment of the steering wheel guide of the jeep. The school was charged for being primarily liable as
it had special parental authority at the time of the accident. The parents of minor James Daniel II and Vivencio
Villanueva were also made defendants in this case. Decide with reason? (10%)

Answer: St. Mary’s Academy vs. Carpetanos, et al. G.R. No. 143363, February 6, 2002

The school is not liable. Under Article 218 of the Family Code, the following shall have special parental authority
over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and
teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority and
responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or
institution. Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils
and students outside the school premises whenever authorized by the school or its teachers.

Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental
authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated
minor while under their supervision, instruction, or custody.

However, for the school to be liable, there must be a finding that the act or omission considered as negligent was
the proximate cause of the injury caused because the negligence must have a causal connection to the accident.
In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery
is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words,
the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of
action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim. Respondents Daniel
spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of petitioner or the reckless driving of James Daniel
II, but the detachment of the steering wheel guide of the jeep.

Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the steering wheel guide of the
jeep, must be pinned on the minors parents primarily. The negligence of petitioner St. Marys Academy was only a remote cause of the accident. Between
the remote cause and the injury, there intervened the negligence of the minors parents or the detachment of the steering wheel guide of the jeep.

Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by respondent Villanueva was an
event over which petitioner St. Marys Academy had no control, and which was the proximate cause of the accident, the school may not be held liable
for the death resulting from such accident.

Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never denied and in fact admitted this
fact. We have held that the registered owner of any vehicle, even if not used for public service, would primarily be
responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on
the highways or streets. Hence, with the overwhelming evidence presented by the school and the respondent Daniel spouses that the accident
occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be
held responsible for damages for the death of Sherwin Carpitanos.

VII
F, the father, filed a petition for habeas corpus case to obtain custody of his minor child who is his illegitimate
son with M. But M is now married to a Japanese national and is presently residing in Japan. However, he
caused the minor child to be brought to the Philippines so that he could take care of him and send him to school.
Indeed F enrolled the minor child in a nursery school. On May 2, 2001, two relatives of the child’s mother came
to the house of the petitioner on the pretext that they were visiting the minor child and requested that they be
allowed to bring the said child for recreation at the SM Department Store. They promised him that they will
bring him back in the afternoon, to which the petitioner agreed. However, they did not bring back the child as
promised by them. Instead, said relatives turned-over the child to the mother of M since M died in Japan.
a. Who between F and the mother of M has the rightful custody of the child? (5%)
b. The lower court ruled that when the child reaches the age of seven (7) years old or over, he is allowed to
choose whom to live with, his father or his maternal grandmother. Is the lower court correct? (5%)
Answer: Briones vs. Miguel, G.R. No. 156343. October 18, 2004; Art. 216 in relation to Art. 176 & 214, FC.

a. The mother of M has the rightful custody of the child. Art. 176, FC provides that illegitimate shall be
under the parental custody of their mother. Art. 216, FC provides that in default of parents or a judicially
appointed guardian, the following persons shall exercise substitute parental authority over the child in
the order indicated: (1) the surviving grandparent, as provided in Art. 214 (2) xxx (3) xxx. Art. 214, FC
provides that in case of death, absence or unsuitability of the parents, substitute parental authority shall
be exercised by the surviving grandparent. Xxx In the instant case, since M is already dead, her mother
being the surviving grandparent has the rightful custody of the child over the father because being an
illegitimate child, the mother has the sole parental authority.

b. No. The lower court is not correct because the child has no right to choose because the mother has the
sole parental authority.

VIII
Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as a hostess. She had
sexual liaison with man after man without benefit of marriage. She cohabited with Sy Sia Lay by whom she had
two children named Robert and Betty Chua Sy. The latter child was born on December 15, 1957. Shortly after
the birth of Betty, Pacita Chua and Sy Sia Lay separated. Finding no one to fall back on after their separation,
Pacita Chua lingered in and around nightclubs and gambling joints, until she met Victor Tan Villareal. In due
time she became the latter's mistress. In 1960 another child, a girl, was born to her. In 1961 when this last child
was still an infant, she and Villareal separated. Without means to support the said child, Pacita Chua gave her
away to a comadre in Cebu. Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple,
acquired the custody of the child Betty who was then barely four months old. They have since brought her up as
their own. They had her christened as Grace Cabangbang on September 12, 1958. The lower court found that
the child was given to the Cabangbang spouses with the knowledge and consent of Pacita Chua. By letter dated
June 6, 1963 addressed to the Cabangbang spouses, Pacita Chua thru counsel demanded the surrender to her of
the custody of the child. Failing to secure such custody, Pacita Chua filed a petition for habeas corpus, asserting
her parental authority over the child. She wants the child back so that Sy Sia Lay, the alleged father, would
resume providing the petitioner the support which he peremptorily withheld and ceased to give when she gave
the child away. The record likewise reveals that at the pre-trial, she expressed her willingness that the child
remained with the Cabangbangs provided the latter would in exchange give her a jeep and some money.
Flora Cabangbang who, from the moment the child was given to them, took care of her as if she were her own
flesh and blood, had her baptized, and when she reached school age enrolled her in a reputable exclusive school,
for girls. As the judge, will you grant the petition for habeas corpus? (10%)

Answer: Pacita Chua vs. Mr. & Mrs. Bartolome Cabangbang, et. al., G.R. No. L-23253, March 28, 1969

No. The petitioner's inconsistent demands in the course of the proceedings below, reveal that her motives do not
flow from the wellsprings of a loving mother's heart. Upon the contrary, they are unmistakably selfish — nay,
mercenary. She needs the child as a leverage to obtain concessions — financial and otherwise — either from the
alleged father or the Cabangbangs. If she gets the child back, support for her would be forthcoming so she
thinks — from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep the child, she
would agree provided they gave her a jeep and some money.

Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to abandon the child —
from the very outset when she allowed Villareal to give her away to the Cabangbangs. It must be noted that the
abandonment took place when the child, barely four months old, was at the most fragile stage of life and needed
the utmost care and solicitude of her mother. And for five long years thereafter she did not once move to
recover the child. She continuously shunned the natural and legal obligations which she owed to the child;
completely withheld her presence, her love, her care, and the opportunity to display maternal affection; and
totally denied her support and maintenance. Her silence and inaction have been prolonged to such a point that
her abandonment of the child and her total relinquishment of parental claim over her, can and should be inferred
as a matter of law.

Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up
her youngest child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it. The
Cabangbangs, upon the other hand, can have the custody of the child, despite the absence of kinship (whether
by affinity or consanguinity). Sec. 6, Rule 99 of the Rules of Court allows custody in favor of “some reputable
and discreet person.”

IX
On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove to school a car, a gift from his
parents. On even date, as his class was scheduled to go on a field trip, his teacher requested him to
accommodate in his car, as he did, four (4) of his classmates because the van rented by the school was too
crowded. On the way to a museum which the students were scheduled to visit, Rozanno made a wrong
maneuver, causing a collision with a jeepney. One of his classmates died. He and the three (3) others were badly
injured.

a. Who is liable for the death of Rozanno’s classmate and the injuries suffered by Rozanno and his 3 other
classmates? Explain. (5%)
b. Under the same facts, except the date of occurrence of the incident, this time in mid-1994, what would
be your answer? Explain. (5%)

Answer: 2010 Bar Exam

a. At the time the incident occurred in May 1989, Rozanno was still a minor. Being a minor, Art. 218, (FC)
applies. Pursuant to Art. 218, the school, its administrators and teachers shall be liable for the acts of
minor Rozanno because of the special parental authority and responsibility that they exercise over him.
The authority applies to all authorized activities, whether inside or outside the premises of the school,
entity or institution. The field trip on which occasion Rozanno drove the car, was an authorized activity,
and, thus, covered by the provision. Furthermore, the parents of Rozanno are subsidiarily liable pursuant
to Art. 219 (FC), and principally liable under Art. 221 (FC), if they are negligent.

b. Since Rozanno was 16 years old in 1989, if the incident happened sometime in the middle of 1994,
Rozanno have been 21 years old at the time. Hence, he was already of legal age. The law reducing the
age of majority to 18 years took effect in December 1989. Being of legal age, Arts. 218, 219, and
221(FC), are no longer applicable. In such case, only Rozanno will be personally responsible for all the
consequences of his act unless his school or his parents were themselves also negligent and such
negligence contributed to the happening of the incident. In that event, the school or his parents are not
liable under Art. 218, 218 or 221 (FC), but will be liable under general provision on the Civil Code on
quasi-delict.
X
A 13 year-old girl tossed a headband at her 12 year-old classmate. This happened while they were playing
inside the schoolyard. Since the latter was surprised, she turned around but her eyes were hit, causing eventual
blindness of one eye. The culprit’s father was sued for damages. Will the action prosper? (10%)

Answer: Albano, p. 733; Maria Teresa Cuadra vs. Alfonso Monfort, 35 SCRA 160

No. The culprit’s father is not liable, for he could not have prevented the damage. The child was at school,
where she ought to be under the supervision of the school authorities.

Nota Bene: The record of the case shows that no suit was brought against the school authorities, like the
teacher-in-charge. Had this case happened today, and a suit was filed against the school, its administrators and
teachers, the latter would have been liable, regardless of the nature of the school. (See Art. 218, Family Code).
Quiz No. 19 – Emancipation (Art. 234 & 236, FC, as amended by RA 6809), Retroactivity of Family Code (Art.
256, FC), Funerals (Art. 305-310, NCC), Use of Surnames (Art. 364-380, NCC & RA 9255, and Absence (Art.
41, FC, Art. 381-392, NCC)

I
Julio and Lea, both 18 years old, were sweethearts. At a party at the house of a mutual friend, Lea met Jake,
also 18 years old, who showed interest in her. Lea seemed to entertain Jake because she danced with him many
times. In a fit of jealousy, Julio shot Jake with his father's 38 calibre revolver which, before going to the party
he was able to get from the unlocked drawer inside his father's bedroom. Jake died as a result of the lone
gunshot wound he sustained. His parents sued Julio's parents for damages arising from quasidelict. At the time
of the incident, Julio was 18 years old living with his parents. Julio's parents moved to dismiss the complaint
against them claiming that since Julio was already of majority age, they were no longer liable for his acts.

1) Should the motion to dismiss be granted? Why? (5%)


2) What is the liability of Julio's parents to Jake's parents? Explain your answer. (5%)

Answer: 1993 Bar Exam

1. No, the Motion to Dismiss should not be granted. Article 236 of the Family Code as amended by
RA6809, provides in the third paragraph that "nothing in this Code shall be construed to derogate from
the duty or responsibility of parents and guardians for children and wards below twenty-one years of age
mentioned in the second and third paragraphs of Article 2180 of the Civil Code".

2. The liability of Julio's parents to Jake's parents arises from quasi-delict and shall cover specifically the
following:

a. P50,000.00 for the death of the son;


b. such amount as would correspond to lost earning capacity; and
c. moral damages.

II
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? (10%)

Answer: 2000 Bar Exam; Heirs of Felipe v. Aldon (G.R. No. L60174, February 16, 1983) and reiterated in
Heirs of Ayuste v. Malabonga (G.R No, 118784, September 2, 1999)

The sale is voidable. The provisions of the Family Code may apply retroactively but only if such application
will not impair vested rights. When Rene and Angelina got married in 1980, the law that governed their
property relations was the New Civil Code. Under the NCC, as interpreted by the Supreme Court in Heirs of
Felipe v. Aldon (G.R. No. L60174, February 16, 1983) and reiterated in Heirs of Ayuste v. Malabonga (G.R
No, 118784, September 2, 1999), the sale executed by the husband without the consent of the wife is voidable.
The husband has already acquired a vested right on the voidable nature of dispositions made without the
consent of the wife. Hence, Article 124 of the Family Code which makes the sale void does not apply.

III
Clemente Bailon and Alice Diaz contracted marriage in Barcelona, Sorsogon. Alice was declared presumptively
dead. Thirteen (13) years later, Clemente got married. Alice reappeared, but there was no affidavit of
reappearance that was executed and recorded. State the effect of the inaction of Alice or an interested person.
Explain. (10%)

Answer.
The second marriage of Clemente remains valid. Under the law, if a spouse has been declared presumptively
dead and the present spouse contracted a subsequent marriage, the same shall be automatically terminated by
the recording of the affidavit of reappearance of the absent spouse unless previously annulled or nullified by a
previous judgment. A sworn statement of the fact and circumstances of reappearance shall be recorded in the
civil registry with notice to the parties in the subsequent marriage.

IV
What requisites must be present in order that there may be declaration of presumptive death of an absent
spouse? Explain. (10%)

Answer: Republic vs. Maria Fe Espinosa Cantor, G.R. No. 184621, December 10, 2013 citing Republic vs.
Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20

Under Art. 41 of the Family Code, there are four (4) essential requisites for the declaration of presumptive
death:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Art. 391,
New Civil Code.
2. That the present spouse wishes to remarry.
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee. (Republic vs. Maria Fe Espinosa Cantor, G.R. No. 184621, December 10, 2013 citing
Republic vs. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20).

V
Erlinda Reynoso filed a petition to have her husband, Roberto Reyes, declared absent. She alleged that her
husband left their conjugal dwelling and had not been heard of for over seven years, his whereabouts being
unknown. But she also alleged that they had not acquired any property during their brief marriage nor did they
have any debt. Her only purpose in filing the petition was to establish her husband’s absence. Will the action
prosper? Why? (10%)

Answer: Jones vs. Hortiguela, 64 Phil. 179; Erlinda Reynoso Reyes vs. Hon. Jose P. Alejandro, L-32026,
January 16, 1986, 141 SCRA 65

No. The declaration of absence under the Civil Code has for its purpose to enable the taking of the necessary
precautions for the administration of the estate of the absentee. (Jones vs. Hortiguela, 64 Phil. 179). Considering
that the husband had not been shown to have any rights, interest or property in the Philippines, there is no point
in judicially declaring him an absentee. (Erlinda Reynoso Reyes vs. Hon. Jose P. Alejandro, L-32026, January
16, 1986, 141 SCRA 65).

VI
May a person validly dispose of his mortal remains or any organ of his body in favor of another? (10%)
Answer.
No. Authorities sustain the view that inasmuch as mortal remains or organs of a person’s body cannot be
considered property within the meaning of the law, therefore, such remains or organs can neither be the subject
matter of a contract nor constitute a part of the inheritance (Alexander on Wills, Vol. 1, pp. 316-317). However,
in this jurisdiction, under R.A. No. 349, as amended by R.A. No. 1056, a person may validly grant to a licensed
physician, surgeon, known scientist, of any medical or scientific institution authority to detach at any time after
the grantor’s death any organ of his body and to utilize the same for medical, surgical or scientific purposes.
The grant must: (1) be in writing; (2) specify the person to whom or the institution to which the grant is given;
(3) specify the organ to be detached; (4) specify the use or uses; and (5) be signed by the grantor and two
disinterested witnesses.

VII
A mother who had an illegitimate child subsequently married a man other than the child’s father. The child filed
a petition to change his surname from the father’s name to that of the stepfather who has no objection thereto.
May the petition be granted? Why? (10%)

Answer: Calderon vs. Republic, 19 SCRA 721


Yes. It is submitted that the petition may be granted provided that it is clearly for the best interest of the child.
Since the change of surname is effected with the consent of the stepfather and would promote the personality of
the child and remove the stigma of illegitimacy, justice dictates that he should be allowed to improve his social
standing as long as in doing so, he does not cause prejudice and injury to the interest of the State or of other
persons. (Calderon vs. Republic, 19 SCRA 721)

VIII
Teresita Ferrer, a scholar of the Catholic Charities, was required to present a copy of her record of birth. When
she secured the copy, she found out that Serafin Ferrer, who was killed in Bataan in 1942, was not really her
father; that in reality, she is an illegitimate child born five years after the death of Serafin Ferrer; that the
woman (mother of Serafin Ferrer) in whose house she had always lived was not really her grandmother; and
that her real name is Teresita Llaneta. Subsequently, she filed a petition for the change of her surname “Llaneta”
to “Ferrer”. Will the petition prosper? (10%)

Answer: Llaneta vs. Agrava, 57 SCRA 29

Yes, the petition will prosper. Teresita had been using the surname Ferrer for as long as she can remember, that
in all her records, in school and elsewhere puts her name down as Teresita Ferrer; and that even the late Serafin
Ferrer’s nearest kin approve of her use of the surname Ferrer. Indeed, a sudden shift at this time to the name
Teresita Llaneta would result in confusion and entail endless and vexatious explanations of the circumstances of
her new surname. Indeed, it is a salutary law that would allow Teresita, inspite of her illegitimate birth, to carry
on in society without her unfortunate status being bandied about every turn.
Besides, all the Ferrers have come forward supporting her petition. Whether the late Serafin Ferrer who died
some five years before Teresita was born, would have consented or objected to her use of his surname is open to
speculation. One thing, however, is beyond cavil. Those living who possess the right of action to prevent the
surname Ferrer from being smeared are proud to share it with her. (Llaneta vs. Agrava, 57 SCRA 29)

IX
When Hiyasmin D. Abdul got married to Hakeem Rauf, she started using her husband’s surname. Then, they
were divorced. Their divorce became irrevocable after observance of a period of three (3) monthly courses from
the divorce decree. (Arts. 56, 57, P.D. No. 1083). Their marriage bond was severed. Then, Hakeem got married
to another woman so, when Hiyasmin learned of it, she filed a petition asking that she be allowed to resume the
use of her maiden name. It was denied on the ground that the petition was in effect a petition for change of
name, hence, it must comply with the requirements of the Rules of Court. Was the decision correct? Why?
(10%)

Answer: Hatima Yasin vs. Shari’a District Court, Third Shari’a Judicial District, G.R. No. 94986, Feb. 23, 1995

No. A petition for resumption of maiden name and surname is not a petition for change of name. The true and
real name of a person is that given to him and entered in the Civil Register. It is the only true and official name
that may be changed with judicial authority. In this case, Hiyasmin’s registered name is Hiyasmin A. Abdul. In
effect, she does not seek to change her registered maiden name but instead prays that she be allowed to resume
the use of her maiden name in view of the dissolution of her marriage to Hakeem by virtue of a divorce decree
granted in accordance with Muslim law.
Under our Civil Code, a married woman may use only her maiden name and surname, although she has an
option, but not a duty to use the surname of the husband in any of the following ways: (a) by using her maiden
first name and surname and adding her husband’s surname; or (b) her maiden’s first name and her husband’s
surname; or (3) her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.” She
need not apply and/or seek judicial authority to do so. Similarly, when the marriage ties no longer exist, as in
the case of death of the husband or divorce as authorized by the Muslim Code, the widow or divorcee need not
seek judicial confirmation of the change of her civil status in order to revert to her maiden name as the use of
her former husband’s name is optional and not obligatory for her.
When Hiyasmin married Hakeem, she did not change her name but only her civil status, so her petition to
resume the use of her maiden name is a superfluity and is an unnecessary proceeding. (Hatima Yasin vs. Shari’a
District Court, Third Shari’a Judicial District, G.R. No. 94986, Feb. 23, 1995). In this decision, the Supreme
Court also made a pronouncement that the use of the husband’s surname after the annulment of marriage or
after the death of a husband is permissive not obligatory. The only exception is in the case of legal separation
where she may not at will revert to her maiden name and surname, but must continue using her name and
surname employed before the decree of legal separation.
X
After a decree of legal separation, can the woman use her maiden name? Why? (10%)

Answer: Laperal vs. Republic, 6 SCRA 357

No, because that is not one of the effects of legal separation. Even in case of legal separation, the wife does not
revert to her maiden name. (Laperal vs. Republic, 6 SCRA 357). This is so because she is still married, legal
separation being a mere separation of the spouses from bed and board without severing the marriage.
Quiz No. 20 – Classification of Property & Ownership (Art. 414 to 439)

I
The sheriff, by virtue of a writ of execution issued by the court, attached and sold to the defendant the sugarcane
planted by the plaintiff. Within one year from the date of the attachment and sale, the plaintiff offered to redeem
said sugarcane and tendered to the defendant the amount sufficient to cover the price paid by the latter including
the interest and other assessments. The defendant refused to accept the money and to return the sugarcane to the
plaintiff because the sugarcane in question, although the same is still attached to the land, had the nature of
personal property and is not, therefore, subject to redemption. The plaintiff on the other hand claimed that the
sugarcane is a real property because the same is considered as “growing fruits” under par. 2 of Art. 415. How
should the sugarcane be regarded – as real property or as personal property?

Answer: Rabuya, p. 27; Paras, p. 33; Sibal vs. Valdez, G.R. No. L-26278, August 4, 1927

The sugarcane, although considered as “growing fruits” and therefore ordinarily real property under par. 2 of
Art. 415 of the Civil Code, must be regarded as personal property for purposes of the Chattel Mortgage Law
and also for purposes of attachment because the right to the growing crops mobilizes (makes personal, as
contradistinguished from immobilization) the crops by anticipation. More specifically, it was said that the
existence of a right on the growing crop is a mobilization by anticipation, a gathering as it were, in advance,
rendering the crop movable.

II
A executed a chattel mortgage in favor of B over their house of strong materials built on a lot rented from C.
When A defaulted in the payment of his obligation, the mortgage was extrajudicially foreclosed and the house
was sold at public auction. B emerged as the highest bidder during the auction. Subsequently, B filed an action
for ejectment against A. In his answer, A impugned the legality of the chattel mortgage and its subsequent
foreclosure on the ground that the house, being an immovable, could only be the subject of a real estate
mortgage and not a chattel mortgage. Is the contention of A correct?

Answer: Rabuya, p. 17-18; Tumalad vs. Vicencio; 41 SCRA 143 (1973)

No. The Supreme Court applied the principle of estoppel since the parties treated the subject house as
personalty. The Court explained that “although there is no specific statement referring to the subject house as
personal property, yet by ceding, selling or transferring a property by way of chattel mortgage could only have
meant to convey the house as chattel or at least, intended to treat the same as such, so that they should not now
be allowed to make an inconsistent stand by claiming otherwise.”

III
X executed a chattel mortgage over a house of mixed materials in favor of Y. Upon default, Y filed an action to
recover the loan. Judgment having been entered in plaintiff’s favor, execution was issued against the same
property mortgaged. Before the property could be sold at the auction, X offered to pay. However, the sheriff
refused the tender unless an additional amount representing the expenses incurred for the publication of the
notice of sale will also be paid. X refused to pay the additional amount contending that the house in question
was considered as personal property by the parties, hence, publication of its sale at public auction was not
necessary. Is X correct?

Answer: Rabuya, pp. 20-21; Manarang vs. Ofilada, 99 Phil. 108 (1956)

No. The Supreme Court explained that the rules on execution do not allow the parties to a contract to treat a real
property as personal because “sale on execution affect the public and third persons.” “The regulation governing
sales on execution are for public officials to follow” and “were never intended to suit the consideration that
parties, may have privately given to the property levied upon.” Hence, “the mere fact that a house was the
subject of a chattel mortgage and was considered as personal property for purposes of the notice be given for its
sale at public auction.” In fine, the Supreme Court declares that “the house of mixed materials levied upon on
execution, although subject of a contract of chattel mortgage between owner and a third person, is real property
within the purview of Rule 39, Section 16 of the Rules of Court as it has become a permanent fixture on the
land, which is real property.”

IV
In 1975, the respondent obtained a loan from the petitioner. As security for the loan, the respondent executed in
favor of the petitioner, a deed of Real and Chattel Mortgage over the lot where its factory stands, and the
chattels located therein as enumerated in a schedule attached to the mortgage contract wherein it provided as
Item IV “Any and all replacements, substitutions, additions, increases and accretions to above properties.” In
1979, the petitioner granted a second loan to the respondent. The loan was secured by a Chattel Mortgage over
personal properties enumerated in a list attached thereto. In 1982, the petitioner foreclosed the real and chattel
mortgages. In 1989, the respondent filed an action for annulment of the sale, reconveyance and damages. The
respondent alleges that the petitioner appropriated some chattels not included in the real and chattel mortgage in
1975 nor in the chattel mortgage in 1979. The respondent further alleged that these properties were acquired
only in 1981. The said machineries were not included in the list of properties appended to the Notice of Sale,
and neither were they included in the Sheriff's Notice of Sale of the foreclosed properties. The petitioner
contended, on the other hand, that the disputed 1981 machineries were real properties because they were heavy,
bolted or cemented on the real property. Is the inclusion of the questioned properties in the foreclosed properties
proper?

Answer: Rabuya, p. 28-30; Tsai vs. Court of Appeals, 366 SCRA 324 (2001)

Yes. Petitioners contend that the nature of the disputed machineries, i.e., that they were heavy, bolted or
cemented on the real property mortgaged by EVERTEX to PBCom, make them ipso facto immovable under
Article 415 (3) and (5) of the New Civil Code. This assertion, however, does not settle the issue. Mere nuts and
bolts do not foreclose the controversy. We have to look at the parties' intent.

While it is true that the controverted properties appear to be immobile, a perusal of the contract of Real and
Chattel Mortgage executed by the parties herein gives us a contrary indication. In the case at bar, both the trial
and the appellate courts reached the same finding that the true intention of PBCOM and the owner, EVERTEX,
is to treat machinery and equipment as chattels. The pertinent portion of respondent appellate court's ruling is
quoted below:

xxx

Too, assuming arguendo that the properties in question are immovable by nature, nothing detracts the parties
from treating it as chattels to secure an obligation under the principle of estoppel. As far back as Navarro v.
Pineda, 9 SCRA 631 (1963), an immovable may be considered a personal property if there is a stipulation as
when it is used as security in the payment of an obligation where a chattel mortgage is executed over it, as in the
case at bar.

In the instant case, the parties herein: (1) executed a contract styled as "Real Estate Mortgage and Chattel
Mortgage," instead of just "Real Estate Mortgage" if indeed their intention is to treat all properties included
therein as immovable, and (2) attached to the said contract a separate "LIST OF MACHINERIES &
EQUIPMENT". These facts, taken together, evince the conclusion that the parties' intention is to treat these
units of machinery as chattels. A fortiori, the contested after-acquired properties, which are of the same
description as the units enumerated under the title "LIST OF MACHINERIES & EQUIPMENT," must also be
treated as chattels.

V
During the Spanish regime, A was allowed by the Spanish government to have the usufruct of a public market
for 40 years. A died, and the usufruct was inherited by B, his son. When B became indebted, his properties were
sold at an auction sale, and the usufruct was bought by C. Then, a fire destroyed the market. The Council
granted B the right to reconstruct the building and continue the usufruct. C complained on the ground that he
had bought at the auction sale B’s usufruct. Can C be given the usufruct and administration of the building?

Answer: Paras, p. 51; Tufexis vs. Olaguera, 32 Phil. 654

No. C cannot be given the right because the right is a public character and could not be bought at an auction
sale. For C now to take B’s place would be contrary to law, for this would be allowing a stranger who had not
been selected by the government, to take over a public function.

VI
X filed a written complaint against the municipality alleging that he had been and was then the owner of a
parcel of land within the said municipality. It had acquired said parcel of land more than sixty years previously,
and had continued to possess the same ever since up to the time when defendant municipality unlawfully and
forcibly seized the said property, claiming to be entitled thereto and retaining it to the present day. The original
owner of the said parcel of land had voluntarily donated it X. But proof is lacking as to whether or not the donor
included in the donation portion of the land which at the present time constitute the plaza of the town. However,
X contended that though the donation is not clear whether it included the plaza, but the same, he has better right
because he acquired it though prescription. The trial court rendered judgment holding that X had a better right
to the possession of the plaza and sentenced the defendant municipality to vacate the same and to pay the costs.
Is the trial court correct?

Answer: Paras, p. 76; Harty vs. Municipality of Victoria, 13 Phil. 152

No, X cannot be regarded as the owner of the plaza. Art. 420 of the Civil Code provides, “The following things
are property of public dominion: (1) Those intended for public use, xxx.” Art. 423 of the Civil Code provides,
“The property of the provinces, cities, and municipality is divided into property for public use and patrimonial
property.” Art. 424 of the Civil Code provides, “Property for public use, in the provinces, cities and
municipalities consists of the xxx public squares xxx.” In the instant case, the plaza could not be acquired by X
through prescription because of its being for public use.

VII
In 1968, the city council considered as an abandoned road, the terminal portion of one of its streets. Later, it
authorized the sale of the said property through public bidding. The lot was awarded to ABC Company for
being the highest bidder. It then filed an application with the RTC for registration of the land. On June 26, 1974,
the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on the ground that the property
sought to be registered being a public road intended for public use is considered part of the public domain and
therefore outside the commerce of man. Consequently, it cannot be subject to registration by any private
individual. May the lot be registered in the name of the buyer?

Answer: Paras, p. 66; Cebu Oxygen and Acetylene Co., Inc. vs. Bercilles, L-40474, August 29, 1975

Yes, the land can be registered in the name of the buyer because the street has already been withdrawn from
public use, and accordingly has become patrimonial property. Article 422 of the Civil Code expressly provides
that "Property of public dominion, when no longer intended for public use or for public service, shall form part
of the patrimonial property of the State." Thus, the withdrawal of the property in question from public use and
its subsequent sale to the petitioner is valid. Hence, the petitioner has a registerable title over the lot in question.

VIII
A brought an action to recover possession over a real property on the basis of his ownership thereof against B.
A was declared the lawful owner. A then proceeded to the land, where he found C and D possessing the same.
With the help of the sheriff, A succeeded in ejecting C and D from the land. C and D now complain that in the
action filed by A against B, they were not made parties in the proceedings, and that therefore, the ruling made
by the court should not be enforced against them. Are C and D correct?

Answer: Paras, p. 132; Javier, et. al. vs. Osmeña, et. al., 40 O.G. 11, p. 2277

Yes, C and D are correct. A reivindicatory action is not an action in rem, but an action in personam. It should
therefore bind merely those who had been made parties to the action. Judgments rendered in actions in
personam are enforceable only between the parties and their successors in interest, but not against strangers.
(Sec. 306, par. 2, Art. 190; now Rule 39, Sec. 47, Rules of Court.

IX
A city ordinance was passed requiring at least six (6) percent of the total area of memorial park cemetery to be
set aside for charity burial of deceased persons who are paupers.
X, as owner of a memorial park, assailed the validity of the ordinance on the ground that the same involved
confiscation of private property. The city government argued that the taking is a valid exercise of police power
and that the land is taken for a public use as it is intended for the burial ground of paupers. Is the city
government correct?

Answer: Rabuya, p. 162-163; City Government of Quezon City vs. Ericta, 122 SCRA 759 (1983)

No. The ordinance is invalid. The Court held that the same is not a mere exercise of police power regulation but
an outright confiscation and deprives a person of his private property without due process of law and without
compensation. The Court observed that there is no reasonable relation between the setting aside of at least six
percent (6%) of the total area of private cemeteries for charity burial grounds of deceased paupers and the
promotion of health, morals, good order, safety, or the general welfare of the people.

X
Jose Dela Rosa filed an application for registration of a parcel of land situated in Benguet claiming that the
same was agricultural land and that he acquired ownership over it by virtue of acquisitive prescription, the same
being in possession of his predecessors-in-interest for a period long enough to meet the requirements of the law.
Such application was opposed Benguet Consolidated, Inc. (Benguet), Atok Big Wedge Corporation (Atok), and
the Republic of the Philippines through the Bureau of Forestry Development. Benguet and Atok each claimed
that they acquired minerals claims over certain portions of the land. The Republic, on the other hand, claimed
that the land was covered by the Central Cordillera Forest Reserve and, thus, part of public dominion.

The trial court denied the application, holding that the applicants had failed to prove their claim of possession
and ownership of the land sought to be registered. The applicants appealed to the Court of Appeals, which
reversed the trial court and recognized the claims of the applicant, but subject to the rights of Benguet and Atok
respecting their mining claims. In other words, the Court of Appeals affirmed the surface rights of the de la
Rosas over the land while at the same time reserving the sub-surface rights of Benguet and Atok by virtue of
their mining claims. Is the decision of the Court of Appeals correct?

Answer: Rabuya, p. 182-184; Republic vs. Court of Appeals, 160 SCRA 228 (1988)

No.

It is true that the subject property was considered forest land and included in the Central Cordillera Forest
Reserve, but this did not impair the rights already vested in Benguet and Atok at that time.

It is of no importance whether Benguet and Atok had secured a patent for as held in the Gold Creek Mining
Corp. Case, for all physical purposes of ownership, the owner is not required to secure a patent as long as he
complies with the provisions of the mining laws; his possessory right, for all practical purposes of ownership, is
as good as though secured by patent.
We agree likewise with the oppositors that having complied with all the requirements of the mining laws, the
claims were removed from the public domain, and not even the government of the Philippines can take away
this right from them. The reason is obvious. Having become the private properties of the oppositors, they cannot
be deprived thereof without due process of law.

The perfection of the mining claim converted the property to mineral land and under the laws then in force
removed it from the public domain. By such act, the locators acquired exclusive rights over the land, against
even the government, without need of any further act such as the purchase of the land or the obtention of a
patent over it. As the land had become the private property of the locators, they had the right to transfer the
same, as they did, to Benguet and Atok.
Wsith respect to the claim of ownership by Dela Rosa, the Court held that even if it be assumed that his
predecessors-in-interest had really been in possession of the subject property, their possession was not in the
concept of an owner of the mining claim, but of the property as agricultural land, which it was not. The property
was mineral land, and they were claiming it as agricultural land. The Court noted that said predecessors-in-
interest did not dispute the rights of the mining locators nor did they seek to oust them as such and to replace
them in the mining land. In fact, one of the predecessors-in-interest testified that she was aware of the diggings
being undertaken “down below” but she did not mind and did not protest the same although she claimed to be
the owner of the said land.

The Court of Appeals justified this by saying there is "no conflict of interest" between the owners of the surface
rights and the owners of the sub-surface rights. This is rather doctrine, for it is a well-known principle that the
owner of piece of land has rights not only to its surface but also to everything underneath and the airspace above
it up to a reasonable height. Under the aforesaid ruling, the land is classified as mineral underneath and
agricultural on the surface, subject to separate claims of title. This is also difficult to understand, especially in
its practical application.

Under the theory of the respondent court, the surface owner will be planting on the land while the mining
locator will be boring tunnels underneath. The farmer cannot dig a well because he may interfere with the
operations below and the miner cannot blast a tunnel lest he destroy the crops above. How deep can the farmer,
and how high can the miner, go without encroaching on each other's rights? Where is the dividing line between
the surface and the sub-surface rights?
The Court feels that the rights over the land are indivisible and that the land itself cannot be half agricultural and
half mineral. The classification must be categorical; the land must be either completely mineral or completely
agricultural. In the instant case, as already observed, the land which was originally classified as forest land
ceased to be so and became mineral — and completely mineral — once the mining claims were perfected. As
long as mining operations were being undertaken thereon, or underneath, it did not cease to be so and become
agricultural, even if only partly so, because it was enclosed with a fence and was cultivated by those who were
unlawfully occupying the surface.

The flaw in the reasoning of the respondent court is in supposing that the rights over the land could be used for
both mining and non-mining purposes simultaneously. The correct interpretation is that once minerals are
discovered in the land, whatever the use to which it is being devoted at the time, such use may be discontinued
by the State to enable it to extract the minerals therein in the exercise of its sovereign prerogative. The land is
thus converted to mineral land and may not be used by any private party, including the registered owner thereof,
for any other purpose that will impede the mining operations to be undertaken therein, For the loss sustained by
such owner, he is of course entitled to just compensation under the Mining Laws or in appropriate expropriation
proceedings.

Our holding is that Benguet and Atok have exclusive rights to the property in question by virtue of their
respective mining claims which they validly acquired before the Constitution of 1935 prohibited the alienation
of all lands of the public domain except agricultural lands, subject to vested rights existing at the time of its
adoption. The land was not and could not have been transferred to the private respondents by virtue of
acquisitive prescription, nor could its use be shared simultaneously by them and the mining companies for
agricultural and mineral purposes.
Quiz No. 21 – Accession and Quieting of Title

I
A milling company, in order to obtain a loan from a bank, requested one of its sugar planters to mortgage the
latter’s land as security. As a reward, the company gave the mortgagor a bonus. The bonus was later claimed by
a creditor of the mortgagor and the bank. The bank reasoned out that as mortgagee, it was entitled to the fruits
and that the bonus should be considered as civil fruits. Who between the creditor of the mortgagor and the bank
is entitled to the bonus? (10%)

Answer: Paras, p. 216-217; Bachrach Motor Co. vs. Talisay-Silay Milling Co., 56 Phil. 117

The creditor of the mortgagor is entitled. In the first place, a mortgagee is not entitled to the fruits of the land
mortgaged. In the second place, the bonus is not civil fruits. It is not one of those meant by law when it says
“other similar income” since this phrase refers merely to things analogous to rents, leases, and annuities.
Assuming that it is income, still it is not income obtained or derived from the land itself, but income obtained as
compensation for the risk assumed by the owner. It should, moreover, be remembered that the bonus was not
based upon the value or importance of the land but upon the total value of the debt secured. And this is
something distinct from and independent of the property mortgaged.

II
Benjamin is the owner of a titled lot which is bounded on the north by the Maragondon River. An alluvial
deposit of two (2) hectares was added to the registered area. Daniel took possession of the portion formed by
accretion and claims that he has been in open, continuous and undisturbed possession of said portion since 1923
as shown by a tax declaration. In 1958, Benjamin filed a Complaint for Quieting of Title and contends that the
alluvium belongs to him as the riparian owner and that since the alluvium is, by law, part and parcel of the
registered property, the same may be considered as registered property. Decide the case and explain.

Answer: (2016 BAR)

I will decide in favor of Daniel and dismiss the action to quite title filed by Benjamin. Under Art. 457 of the
Civil Code, the owner of lands adjoining the banks of rivers belong the accretion which they gradually receive
from the effects of the current of the waters. The accretion, however, does not automatically become registered
land. It must be brought under the Torrens system of registration by Benjamin, the riparian owner. Since he did
not, then the increment, not being registered land, was open to acquisition through prescription by third persons,
like Daniel. (Grande v. Court of Appeals, 5 SCRA 524 [1962]; Cureg v. Intermediate Appellate Court, 177
SCRA 313 [1989])

III
Ciriaco Realty Corporation (CRC) sold to the spouses Del a Cruz a 500-square meter land (Lot A) in
Paranaque. The land now has a fair market value of P1, 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 there 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
discover 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.

Answer: (1992, 2001, 2013 BAR)

Based on the facts as stated, the spouses Dela Cruz as builders and the spouses Rodriguez as landowners, are
both in good faith. The spouses Dela Cruz are builders in good faith because before constructing the house they
exercised due diligence by asking the agent of CRC the location of 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, G.R. No. 79688, February 1, 1996). On the other hand, there is no showing that the
landowners, spouses 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). Good faith is always presumed (Art. 527). 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 Articles 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 considerably more than that of the
building. In such case, he shall pay reasonable rent if the owner of the land does not choose to appropriate the
building or trees after proper indemnity. (Art. 448). 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
decide 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). Thus, the spouses Dela Cruz may demand P1, 000, 000 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 from the evidence presented during the trial (Depra Dumlao, G.R. No. L 57348,
May 16, 1985; Technogas Phils. v. CA, G.R. No. 108894, February 10, 1997).

IV
Mr. and Mrs. X migrated to the US with all their children. As they had no intention of coming back, they
offered their house and lot for sale to their neighbors, Mr. and Mrs. A (the buyers) who agreed to buy the
property for 128 Million. Because Mr. and Mrs. A needed to obtain a loan from a bank first, and since the
sellers were in a hurry to migrate, the latter told the buyers that they could already occupy the house, renovate it
as it was already in a state of disrepair, and pay only when their loan is approved and released. While waiting
for the loan approval, the buyers spent P1 Million in repairing the house. A month later, a person carrying an
authenticated special power of attorney from the sellers demanded that the buyers either immediately pay for
the property in full now or vacate it and pay damages for having made improvements on the property without a
sale having been perfected. What are the buyers' options or legal rights with respect to the expenses they
incurred in improving the property under circumstances?

Answer: (2015 BAR)

A: The buyers here may be deemed possessors or builders in good faith because they were made to believe that
they were allowed to make repairs or renovation by the sellers themselves. As builders in good faith, they have
the right to seek reimbursement for the value of the improvements in case the owner decides to appropriate
them. They cannot be asked to remove the improvements because that is not one of the options given by law to
the landowner in case the builder is in good faith.

V
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? 2) In the meantime that Pedro is not yet paid,
who is entitled to the rentals of the building, Pedro or Pablo?

Answer: (2000 BAR)

1) 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. The case of Pecson v. CA
(G.R. No. 115814, 26 May 1995), is not applicable to the problem. In the Pecson case, the builder was the
owner of the land who later lost the property at a public sale due to nonpayment 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.

2) Pablo is entitled to the rentals of the building. As the owner of the land, Pablo is also the owner of the
building being an accession thereto. However, Pedro who is entitled to retain the building is also entitled to
retain the rentals. He, however, shall apply the rentals to the indemnity payable to him after deducting
reasonable cost of repair and maintenance.

VI
The properties of Jessica and Jenny, who are neighbors, lie along the banks of the Marikina River. At certain
times of the year, the river would swell and as the water recedes, soil, rocks and other materials are deposited on
Jessica's and Jenny's properties. This pattern of the river swelling, receding and depositing soil and other
materials being deposited on the neighbors’ properties have gone on for many years. Knowing this pattern,
Jessica constructed a concrete barrier about 2 meters from her property line and extending towards the river, so
that when the water recedes, soil and other materials are trapped within this barrier. After several years, the area
between Jessica's property line to the concrete barrier was completely filled with soil, effectively increasing
Jessica's property by 2 meters. Jenny's property, where no barrier was constructed, also increased by one meter
along the side of the river.

a. Can Jessica and Jenny legally claim ownership over the additional 2 meters and one meter, respectively,
of land deposited along their properties?
b. If Jessica's and Jenny's properties are registered, will the benefit of such registration extend to the
increased area of their properties? c) Assume the two properties are on a cliff adjoining the shore of
Laguna Lake. Jessica and Jenny had a hotel built on the properties. They had the earth and rocks
excavated from the properties dumped on the adjoining shore, giving rise to a new patch of dry land.
Can they validly lay claim to the patch of land?

Answer: (2008 BAR)

a) Jenny can legally claim ownership of the lands by right of accession (accretion) under Art. 457 of the Civil
Code. The lands came into being over the years through the gradual deposition of soil and silt by the natural
action of the waters of the river.

Jessica cannot claim the two meter-wide strip of land added to her land. Jessica constructed the cement barrier
two meters in front of her property towards the river not to protect her land from the destructive forces of the
water but to trap the alluvium. In order that the riparian owner may be entitled to the alluvium the deposition
must occur naturally without the intervention of the riparian owner (Republic v. CA 132 SCRA 514 [1984])

b) No, the registration of Jessica’s and Jenny’s adjoining property does not automatically extend to the
accretions. They have to bring their lands under the operation of the Torrens system of land registration
following the procedure prescribed in P.D. No. 1529.

c) Jessica and Jenny cannot validly lay claim to the price of dry land that resulted from the dumping of rocks
and carth materials excavated from their properties because it is a reclamation without authority. The land is
part of the lakeshore, if not the lakebed, which is inalienable land of the public domain.

VII
Marciano is the owner of a parcel of land through which a river runs out into the sea. The land had been brought
under the Torrens System, and is cultivated by Ulpiano and his family as farmworkers therein. Over the years,
the river has brought silt and sediment from its sources up in the mountains and forests so that gradually the
land owned by Marciano increased in area by three hectares. Ulpiano built three huts on this additional area,
where he and his two married children live. On this same area, Ulpiano and his family planted peanuts, monggo
beans and vegetables. Ulpiano also regularly paid taxes on the land, as shown by tax declarations, for over thirty
years. When Marciano learned of the increase in the size of the land, he ordered Ulpiano to demolish the huts,
and demanded that he be paid his share in the proceeds of the harvest. Marciano claims that under the Civil
Code, the alluvium belongs to him as a registered riparian owner to whose land the accretion attaches, and that
his right is enforceable against the whole world.

a) Is Marciano correct? Explain. (5%)


b) What rights, if any, does Ulpiano have against Marciano? Explain. (5%)

Answer: (2009 BAR)

a) Yes. Marciano’s contention is correct. Since that accretion was deposited on his land by the action of the
waters of the river and he did not construct any structure to increase the deposition of soil and silt, Marciano
automatically owns the accretion. His real right of ownership is enforceable against the whole world including
Ulpiano and his two married children. Although Marciano’s land is registered, the three (3) hectares land
deposited through accretion was not automatically registered. As an unregistered land, it is subject to acquisitive
prescription by third persons.

Although Ulpiano and his children live in the three (3) hectare unregistered land owned by Marciano, they are
farm workers; therefore, they are possessors not in the concept of owners but in the concept of mere holders.
Even if they possess the land for more than 30 years, they cannot become the owners thereof through
extraordinary acquisitive prescription, because the law requires possession in the concept of the owner. Payment
of taxes and tax declaration are not enough to make their possession one in the concept of owner. They must
repudiate the possession in the concept of holder by executing unequivocal acts of repudiation amounting to
ouster of Marciano, known to Marciano and must be proven by clear and convincing evidence. Only then would
his possession become adverse.

b) Although Ulpiano is a possessor in bad faith, because he knew he does not own the land, he will lose the
three huts he built in bad faith and make an accounting of the fruits he has gathered, he has the right to deduct
from the value of the fruits the expenses for production, gathering and preservation of the fruits (Art. 443).

He may also ask for reimbursement of the taxes he has paid, as these are charges on the land owned by
Marciano. This obligation is based on a quasi-contract (Art. 2175).

VIII
Pedro bought a parcel of land described as Cadastral Lot No. 123 and the title was issued to his name. Juan also
bought a lot in the same place, which is described as Cadastral Lot No. 124. Pedro hired a geodetic engineer to
determine the actual location of Lot No. 123 but for some reason, the engineer pointed to Lot No. 124 by
mistake. Pedro hired a contractor to construct his house and the latter put up a sign stating the name of the
owner of the project and the construction permit number. It took more than a year before the house was
constructed. When Pedro was already residing in his house, Juan told him to remove his house because it was
built on his (Juan's) lot.

Juan filed a Complaint for Recovery of Possession and prayed that the house be removed because Pedro is a
builder in bad faith. Pedro filed his Answer with Counterclaim that he is entitled to the payment of the value of
the house plus damages because he is a builder in good faith and that Juan is guilty of estoppel and laches.

1. If Pedro is a builder in good faith, what are the rights given to Juan under the law? Explain.
2. If Pedro is a builder in bad faith, what are the rights given to Juan under the law? Explain.

Answer: (2016 BAR)

1. If Pedro is a builder in good faith and Juan is an owner in good faith, Juan has the right to appropriate as his
own the house after payment of indemnity provided for in Articles 546 and 548 of the Civil Code, which are the
necessary and useful expenses. As to useful expenses, Juan has the option to either refund the amount of the
expenses, or pay the increase in value which the land may have acquired by reason thereof. Alternatively, under
Article 448 of the Civil Code, Juan has the right to oblige Pedro to pay the price of the land. However, Pedro
cannot be obliged to buy the land if its value is considerably more than that of the house. In such case, he shall
pay reasonable rent, if Juan does not choose to appropriate the house after proper indemnity. It is the owner of
the land who is authorized to exercise the options under Article 448 because his right is older and by principle
of accession, he is entitled to the ownership of the accessory thing.

If Pedro is a builder in good faith and Juan is an owner in bad faith because Juan knew that Pedro was building
on his lot and did not oppose it (Art. 453 par. 2), and Art. 454 in relation to Art. 447 of the Civil Code applies.
Juan shall pay the value of the house and is also liable for reparation of damage; however, Pedro also has the
right to remove or demolish the house and ask for damages.

2. If Pedro is a builder in bad faith and Juan is an owner in good faith, Juan has three options. He may
appropriate the improvements without indemnity under Art. 449 of the Civil Code, or demand the demolition of
the house in order to replace things to their former condition at Pedro’s expense under Art. 450 or compel Pedro
to pay the price of the land. In addition to these options, Juan is also entitled to damages from Pedro.

If Pedro is a builder in bad faith and Juan is an owner in bad faith, it shall be as if both of them were in good
faith. (Art. 453, New Civil Code)

IX
X owns a registered land adjacent to Estero Calubcub which is already dried up due to the dumping of garbage
by the surrounding neighborhood. Y now occupies said dried up land until X, claiming ownership over the
same, required him to vacate on the basis of Article 370 of the Civil Code which provides that riparian owner
owns the dried up river bed abandoned by natural changes. Is X correct?

Answer: Rabuya, p. 308; Ronquillo vs. CA, 195 CRA 433 (1991)

No. The rules on alluvion do not apply to man-made or artificial accretions nor to accretions to lands that adjoin
canals or esteros or artificial drainage systems. Considering our earlier finding that the dried-up portion of
Estero Calubcub was actually caused by the active intervention of man, it follows that Article 370 does not
apply to the case at bar and, hence, the Del Rosarios cannot be entitled thereto supposedly as riparian owners.

The dried-up portion of Estero Calubcub should thus be considered as forming part of the land of the public
domain which cannot be subject to acquisition by private ownership.

X
X filed an application to register and confirm his title to a parcel of land situated in Bataan. He claimed that this
land is an accretion to his property. It is bounded on the eastern side by the Talisay River, on the western side
by the Bulacan River, and on the northern side by the Manila Bay. The Director of Lands opposed the
application contending that the subject land is part of the public domain. The evidence, however, shows that the
accretion took place on the northern portion of X’s land which is adjacent to the Manila Bay. Will the
application be granted?

Answer: Rabuya, p. 299; Heirs of Emiliano Navarro vs. IAC, 268 SCRA 74 (1997)

No. The third requisite of accretion, which is, that the alluvion is deposited on the portion of claimant’s land
which is adjacent to the river bank, is lacking. The claimant’s own track of land where the accretion has taken
place adjoins the Manila Bay, which is not a river but a sea. The disputed land, thus, is not an accretion on a
river bank but on a sea bank, or on what used to be the foreshore of Manila Bay. As such, the applicable law is
not Art. 457 of the Civil Code but Article 4 of the Spanish Law of Waters of 1866 which provides that “lands
added to the shores by accretions and alluvial deposits caused by the action of the sea, form part of the public
domain.”
Quiz No. 22 – Co-ownership

I
The siblings Daniel, Albertana and Felicidad, all surnamed Teokemian owned in common a parcel of land
which they inherited from their father. On January 16, 1950, Daniel and Albertana, without the participation of
Felicidad, executed a deed of sale in favor of Andres Orais, over a parcel of unregistered land with an area
described as 7.3720 hectares. On January 26, 1950, the land was surveyed in the name of Virginia Orais,
daughter of Andres, and denominated as Lot No. 2239, PLS-287, Cateel Cadastre. As surveyed, it had an area
of 11.1 hectares. On June 24, 1957, Virginia Orais was issued a free patent over the land. Thereafter, she was
likewise issued an original certificate of title. Notwithstanding such sale and issuance of title in the name of
Virginia Orais, the latter has allowed Felicidad Teokemian to occupy that one-third portion allotted to her. She
had been in possession of that portion since it was left to her by her father in 1941. On July 27, 1972, the one-
third portion occupied by Felicidad Teokemian was sold to Elano Cabrera, husband of Felicidad Cabrera, who
immediately took possession of the same. When Virginia Orais learned that the Cabreras were occupying a
portion of the subject property, the former filed an action for quieting of title in 1988 against Felicidad Cabrera,
who was already a widow at that time. In their Answer, the defendants said that the action filed by the plaintiff
is barred by laches. Virginia Orais countered that laches does not apply since what was sold to the Cabreras was
a definite portion of the community property and therefore void. Will the action for quieting of title proper?
(10%)

Answer: Rabuya, p. 340; Vda. de Cabrera vs. CA, 267 SCRA 339, February 3, 1997

Quieting of title is a common-law remedy for the removal of any cloud or doubt or uncertainty on the title to real
property by reason of any instrument, record, claim, encumbrance, or proceeding that is apparently valid or
effective, but is, in truth and in fact, invalid, ineffective, voidable, or unenforceable, and may be prejudicial to
said title.

So, from the meaning of quieting of title, you can deduce that the core or underlying issue is whether or not the
sale of the 1/3 definite portion of the community property by Felicidad Teokemian (one of the co-owners) to
Elano Cabrera which is within the lot of Virginia Orais covered by a title valid. If it is valid, your answer is NO,
otherwise, your answer is YES.

This is the most important. You answered NO. You said that Felicidad Teokemian is the owner of the 1/3
undivided share in the property. The sale of her share to Elano Cabrera is valid in so far as the 1/3 undivided
portion allotted to her. When you answer this way, it is WRONG. You are not applying the law to the facts. The
fact is selling specific 1/3 portion of the property. Definitely, Felicidad could not sell that specific portion because
her fellow co-owners are also owners of that specific portion of the property.

I will now lead you to a doctrine in co-ownership as cited in the case of Vda. de Cabrera vs. CA.

“There has, therefore, been a partial partition, where the transferees of an undivided
portion of the land allowed a co-owner of the property to occupy a definite portion thereof
and has not disturbed the same, for a period too long to be ignored--the possessor is in a
better condition or right.”
The key words: “occupy definite portion” and “not disturbed for a long period of time” equals “partial
partition”

there is now partial partition. Felicidad Teokemian can now sell that specific portion of the property.

II
In this case, the sisters, Matilde and Vicenta Ortiz (plaintiff) were co-owners of a two-storey house designed as
dwelling. Matilde (defendant) and her husband occupied the upper floor as their dwelling. The husband also
occupied a room on the ground floor as an office while the other rooms were rented as stores. Meanwhile,
plaintiff and her husband were living abroad and upon their return an accounting of rents was made to them.
The question arose as to whether or not defendants should pay rent for the upper floor occupied by them as well
as that portion occupied by the husband. If they have to pay, how much would it be in relation to the rents they
collected from the tenants. Decide. (10%)
Answer: Rabuya, p. 348; Use of the thing owned in common; Pardell vs. Bartolome, 23 Phil. 450 (1912)

Notwithstanding the above statements relative to the joint-ownership rights which entitled the defendants to live
in the upper story of the said house, yet in view of the fact that the record shows it to have been proved that the
defendant Matilde's husband, Gaspar de Bartolome, occupied for four years a room or a part of the lower floor
of the same house on Calle Escolta, using it as an office for the justice of the peace, a position which he held in
the capital of that province, strict justice, requires that he pay his sister-in-law, the plaintiff, one half of the
monthly rent which the said quarters could have produced, had they been leased to another person.

Xxx

This conclusion as to Bartolome's liability results from the fact that, even as the husband of the defendant
coowner of the property, he had no right to occupy and use gratuitously the said part of the lower floor of the
house in question, where he lived with his wife, to the detriment of the plaintiff Vicenta who did not receive
one-half of the rent which those quarters could and should have produced, had they been occupied by a stranger,
in the same manner that rent was obtained from the rooms on the lower floor that were used as stores.

III
A co-owner of a real property may eject the other co-owners who occupied the whole property on the
acquiescence of another co-owner. The MTC ruled in the negative saying that they have no preferential right of
possession over the portions occupied by the other co-owners since the property has not yet been partitioned.
The RTC reversed the decision based on Article 487 of the Civil Code allowing anyone of the co-owners to
bring an action for ejectment. It held that the co-owners could resume their occupation of the premises. It was
affirmed by the CA, hence, a petition for certiorari was filed raising as one of the issues the right of the co-
owner to eject the other co-owners. Decide.
Answer: Rabuya, p. 360; limitation on the right to use; action available even against a co-owner; De Guia vs.
CA, 413 SCRA 114 (2003)
Article 487 of the Civil Code states: Any one of the co-owners may bring an action in ejectment.

In De Guia vs. Court of Appeals, 413 SCRA 114, G.R. No. 120864, October 8, 2003, the Supreme Court
through Justice Carpio said:

"Any co-owner may file an action under Article 487 not only against a third person, but also against another co-
owner who takes exclusive possession and asserts exclusive ownership of the property. In the latter case,
however, the only purpose of the action is to obtain recognition of the co-ownership. The plaintiff cannot seek
exclusion of the defendant from the property because as co-owner he has a right of possession. The plaintiff
cannot recover any material or determinate part of the property.

In Hermogena G. Engreso with Spouse Jose Engreso v. Nestoria De La Cruz and Herminio De La Cruz, we
reiterated the rule that a co-owner cannot recover a material or determinate part of a common property prior to
partition as follows:
It is a basic principle in civil law that before a property owned in common is actually partitioned, all that the co-
owner has is an ideal or abstract quota or proportionate share in the entire property. A co-owner has no right to
demand a concrete, specific or determinate part of the thing owned in common because until division is effected
his right over the thing is represented only by an ideal portion.
As such, the only effect of an action brought by a co-owner against a co-owner will be to obtain recognition of
the co-ownership; the defendant cannot be excluded from a specific portion of the property because as a co-
owner he has a right to possess and the plaintiff cannot recover any material or determinate part of the property.
Thus, the courts a quo erred when they ordered the delivery of one-half (½) of the building in favor of private
respondent."

IV
Salome Bornales, together with her siblings, were the original co-owners of a certain parcel of land, known as
Lot 162 of the Cadastral Survey of Ponteverda, Capiz under OCT No. 18047. On July 14, 1940, Salome sold
part of her share in favor of Soledad Daynolo. The portion sold to Soledad was, however, concrete and specific.
Immediately, thereafter, Soledad took possession of the land described in the sale. In 1948, Salome, together
with the other co-owners, sold 24,933 square meters of Lot 162 to Jose Regalado, Sr. In 1951, the heirs of
Soledad sold the land to the spouses Manuel Del Campo and Salvacion Quiachon, who succeeded in the
possession of said land. Meanwhile, Jose Regalado, Sr. caused the reconstitution of OCT No. 18047, which
initially reflected the shares of the original co-owners in Lot 162, but the title was eventually transferred in the
name of Jose Regalado, Sr. The latter, thereafter, subdivided the entire property into smaller lots, each covered
by a respective title in his name. One of these small lots included the portion occupied by the spouses Del
Campo. Thus, in 1987, the spouses Del Campo filed a complaint for “repartition, resurvey and reconveyance”
against the heirs of Regalado claiming that their land was erroneously included in the title of Regalado. The
lower court concluded that spouses Del Campo could not have acquired ownership of the subject land which
originally formed part of Lot 162 on the ground that their alleged right springs from a void sale transaction
between Salome and Soledad because Salome sold a definite portion of the co-owned lot by metes and bounds
to Soledad. Is the lower court correct? (10%)

Answer: Rabuya, p. 386; Alienation of Definite or Concrete Portion; Del Campo vs. CA, 351 SCRA 1,
February 1, 2001

No. In the case of Vda. de Cabrera vs. Court of Appeals,[16] we had occasion to hold that where the transferees of
an undivided portion of the land allowed a co-owner of the property to occupy a definite portion thereof and had
not disturbed the same for a period too long to be ignored, the possessor is in a better condition or right than said
transferees. (Potior est condition possidentis). Such undisturbed possession had the effect of a partial partition of
the co-owned property which entitles the possessor to the definite portion which he occupies. Conformably,
petitioners are entitled to the disputed land, having enjoyed uninterrupted possession thereof for a total of 49 years
up to the present.

V
In 1935, Emilio Restar (Restar) died intestate, leaving eight (8) children-compulsory heirs, namely: Flores
Restar, Dolores Restar-Cichon, Perpetua Restar-Sta. Maria, Paciencia Restar-Manares, Dominica Restar-
Relojero, Policarpio Restar, Maria Restar-Rose and Adolfo Restar. In 1960, Restar’s eldest child, Flores, on the
basis of a July 12, 1959 Joint Affidavit he executed with one Helen Restar adjudicated unto himself the whole
land in question as his share from his father, caused the cancellation of Tax Declaration No. 6696 in Restar’s
name covering a 5,918 square meter parcel of land, Lot 3177 (the lot), located at Barangay Carugdog, Lezo,
Aklan which was among the properties left by Restar, and the issuance of Tax Declaration No. 11134 in his
name. Flores died on June 10, 1989. On November 5, 1998, the co-heirs of Flores discovered the cancellation of
Restar’s Tax Declaration No. 6696 and the issuance in lieu thereof of Tax Declaration No. 11134 in the name of
Flores. On January 21, 1999, the heirs of Flores’ sisters Dolores R. Cichon, Perpetua Sta. Maria, and Maria
Rose who had in the meantime died, together with Flores’ surviving sisters Dominica Restar-Relojero and
Paciencia Restar-Manares, filed a Complaint against Flores’ heirs for “partition of the lot, declaration of nullity
of documents, ownership with damages and preliminary injunction” before RTC of Aklan. Flores’ brothers
Policarpio and Adolfo were impleaded also as defendants, they being unwilling co-plaintiffs. Meanwhile the
Heirs of Flores Restar countered that Flores’ possession ripened into ownership through acquisitive
prescription. It has been shown that the complainants never possessed the lot since the death of Restar and
asserted their claim thereto only on January 21, 1999 when they filed the complaint for partition. In contrast,
Flores took possession of the lot after Restar’s death and exercised acts of dominion thereon – tilling and
cultivating the land, introducing improvements, and enjoying the produce thereof – and in 1960 was able to
secure a tax declaration in his name. In addition, the heirs of Restar had a verbal partition of one parcel of land
in Carugdog, Lezo, Aklan in 1945 and an amicable partition of the lands of Restar in Banga, Aklan in 1973
without demanding for the partition of the subject lot. Rule on the complaint. (10%)

Answer: Rabuya, p. 422; Acquisitive Prescription; Heirs of Flores Restar vs. Heirs of Dolores R. Cichon, 475
SCRA 731, November 22, 2005

The trial courts finding and conclusion that Flores and his heirs had for more than 38 years possessed the land in
open, adverse and continuous possession in the concept of owner − which length of possession had never been
questioned, rebutted or disputed by any of respondents, being thus duly supported by substantial evidence, he and
his heirs have become owner of the lot by extraordinary prescription. It is unfortunate that respondents slept on
their rights. Dura lex sed lex.

The following acts of Flores show possession adverse to his co-heirs: the cancellation of the tax declaration
certificate in the name of Restar and securing another in his name; the execution of a Joint Affidavit stating that
he is the owner and possessor thereof to the exclusion of respondents; payment of real estate tax and irrigation
fees without respondents having ever contributed any share therein; and continued enjoyment of the property and
its produce to the exclusion of respondents. And Flores adverse possession was continued by his heirs.
VI
A, B and C are the co-owners in equal shares of a residential house and lot. During their co-ownership, the
following acts were respectively done by the co-owners:
1. A undertook the repair of the foundation of the house, then tilting to one side, to prevent the house from
collapsing.
2. B and C mortgaged the house and lot to secure a loan.
3. B engaged a contractor to build a concrete fence all around the lot.
4. C built a beautiful grotto in the garden.
5. A and C sold the land to X for a very good price.

a. Is A’s sole decision to repair the foundation of the house binding on B and C? May A require B and C to
contribute their 2/3 share of the expense? Reasons.
b. What is the legal effect f the mortgage contract executed by B and C? Reasons.
c. Is B’s sole decision to build the fence binding upon A and C? May B require A and C to contribute their
2/3 share of the expense? Reasos.
d. Is C’s sole decision to build the grotto binding upon A and B? May C require A and B to contribute their
2/3 share of the expense? Reasons.
e. e) What are the legal effects of the contract of sale executed by A, C and X? Reasons.

Answer: (1993, 1998, 2000, 2002, 2006, 2008, 2009, 2015 BAR

a. Yes. A’s sole decision to repair the foundation is binding upon B and C. B and C must contribute 2/3 of
the expense. Each co-owner has the right to compel the other co-owners to contribute to the expense of
preservation of the thing (the house) owned in common in proportion to their respective interests (Arts.
485 and 488, Civil Code).
b. The mortgage shall not bind the 1/3 right and interest of A and shall be deemed to cover only the rights
and interests of B and C in the house and lot. The mortgage shall be limited to the portion (2/3) which
may be allotted to B and C in the partiion (Art. 493, Civil Code).
c. B’s sole decision to build the concrete fence is not binding upon A and C. Expenses to improve the thing
owned in common must be decided upon by a majority of the co-owners who represent the contolling
interest (Arts. 489 and 492, Civil Code).
d. C’s sole decision to build the grotto is not binding upon A and B who cannot be required to contribute to
the expenses for the embellishment of the thing owned in common if not decided upon by the majority
of the co-owners who represent the controlling interest (Arts. 489 and 492, Civil Code).
e. The sale to X shall not bidn the 1/3 share of B and shall be deemed to cover only the 2/3 share of A and
C in the land (Art. 493, Civil Code). B shall have the right to redeem the 2/3 share sold to X by A and C
since X is a third person (Art. 1620, Civil Code).

VII
In 1955, Ramon and his sister Rosario inherited a parcel of land in Albay from their parents. Since Rosario was
gainfully employed in Manila, she left Ramon alone to prossess and cultivare the land. However, Ramon never
shared the harvest with Rosario and was even able to sell one-half of the land in 1985 by claiming to be the sole
heir of his parents. Having reached retirement age in 1990, Rosario returned to the province and upon learning
what had transpired, demanded that the remaining half of the land be giver to her as her share. Ramon opposed,
asserting that he has already acquired ownership of the land by prescription, and that Rosario is barred by laches
from demanding partition and reconveyance. Decide the conflicting claims.

Answer: (2000 BAR)

Ramon is wrong on both counts: prescription and laches. His possession as co-owner did not give rise to
acquisitive prescription. Possession by a co-owner is deemed not adverse to the other co-owners but is, on the
contrary, deemed beneficial to them (Pangan v. CA 166 SCRA 375). Ramon’s possession will become adverse
only when he has repudiated the co-ownership and such repudiation was made known to Rosario. Assuming
that the sale in 1985 where Ramon claimed he was the sole heir of his parents amounted to repudiation of the
co-ownership, the prescriptive period began to run only from that time. Not more than 30 years having lapsed
since then, the claim of Rosario has not yet prescribed. The claim of laches is not also meritorious. Until the
repudiation of the co-ownership was made known to the other co-owners, no right has been violated for the said
co-owners, no right has been violated for the said co-owners to vindicate. Mere delay in vindicating the right,
standing alone, does not constitute laches.
VIII
Senen and Peter are brothers. Senen migrated to Canada early while still a teenager. Peter stayed in Bulacan to
take care of their widowed mother and continued to work on the Family farm even after her death. Returning to
the country some thirty years after he had left, Senen seeks a partition of the farm to get his share as the only co-
heir of Peter. Peter interposes his opposition, contending that acquisitive prescription has already set in and that
estoppel lies to bar the action for partition, citing his continuous possession of the property for at least 10 years,
for almost 30 years in fact. It is undisputed that Peter has never openly claimed sole ownership of the property.
If he ever had the intention to do so, Senen was completely ignorant of it. Will Senen’s action prosper? Explain.

Answer: (2000, 2002 BAR)

Senen’s action will prosper. Article 494 of the New Civil Code provides that “no prescription shall run in favor
of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the
coownership nor notified Senen of his having repudiated the same.”

IX
Anthony bought a piece of untitled agricultural land from Bert. Bert, in turn, acquired the property by forging
Carlo's signature in a deed of sale over the property. Carlo had been in possession of the property for 8 years,
declared it for tax purposes, and religiously paid all taxes due on the property. Anthony is not aware of the
defect in Bert's title, but has been in actual physical possession of the property from the time he bought it from
Bert, who had never been in possession of the property for one year.

a. Can Anthony acquire ownership of the property by acquisitive prescription? How many more years does
he have possess it to acquire ownership?
b. If Carlo is able to legally recover his property, can he require Anthony to account for all the fruits he has
harvested from the property while in possession?
c. If there are standing crops on the property when Carlo recovers possession, can Carlo appropriate them?

Answer: (2008 BAR)

a. Yes, Anthony can acquire ownership of the property by ordinary prescription which requires just title and
good faith (Art. 1117). There was just title because a deed of sale was issued in his favor even though it was
forged, which in fact he was not aware of. He needs to possess the land in good faith and in the concept of an
owner for a total of ten years in order to acquire ownership. Since Anthony possessed the land for only one
year, he has not completed the ten-year period. Even if Anthony tacks the 8-year period of possession by Carlo
who in the deed of sale is supposed to be his grantor or predecessor in interest (Art. 1138 (1)), the period is still
short of ten years.

b. Anthony is a possessor in good faith, Anthony cannot be made to account for the fruits he gathered before he
was served with summons. A possessor in good faith is entitled to the fruits received before the possession was
legally interrupted by the service of summons (Art. 554). After Anthony was served with summons, he became
a possessor in bad faith and a builder, planter, sower in bad faith. He can also be made to account for the fruits
but he may deduct expenses or production gathering and preservation of the fruits (Art. 443).

c. The value of the standing crops must be prorated depending upon the period of possession and the period of
growing and producing the fruits. Anthony is entitled to a part of the net harvest and a part of expenses of
cultivation in proportion to his period of possession. Carlo may appropriate the respective parts subject to
prorating the respective periods of possession. However, Carlos may allow Anthony to gather these growing
fruits as an indemnity for the expenses of cultivation. If Anthony refuses to accept the concession, he shall lose
the right to indemnity under Art. 443 (Art. 545 par. 3).

X
Ambrosio died, leaving his three daughters, Belen, Rosario and Sylvia a hacienda which was mortgaged to the
Philippine National Bank due to the failure of the daughters to pay the bank, the latter foreclosed the mortgage
and the hacienda was sold to it as the highest bidder. Six months later, Sylvia won the grand prize at the lotto
and used part of it to redeem the hacienda from the bank. Thereafter, she took possession of the hacienda and
refused to share its fruits with her sisters, contending that it was owned exclusively by her, having bought it
from the bank with her own money. Is she correct or not?

Answer: (1993, 2000 BAR)


Sylvia is not correct. The 3 daughters are the co-owners of the hacienda being the only heirs of Ambrosio.
When the property was foreclosed, the right of redemption belongs also to the 3 daughters. When Sylvia
redeemed the entire property before the lapse of the redemption period, she also exercised the right of
redemption of her co-owners on their behalf. As such, she is holding the shares of her two sisters in the property
and all the fruits corresponding thereto, in trust for them. Redemption by one co-owner inures to the benefit of
all (Adille v. CA, G.R. No. L-44546, January 29, 1988). Sylvia, however, is entitled to be reimbursed the shares
of her two sisters in the redemption price.
Quiz No. 23 – Possession and Usufruct

I
In this case, petitioner (Bukidnon Doctors’ Hospital, Inc.) was a mortgagor of respondent (MBTC). Upon
petitioner’s failure to pay the mortgage obligation, respondent foreclosed the mortgage and acquired the
property during the public auction. Petitioner likewise failed to redeem the foreclosed property from the
respondent within the redemption period. Subsequently, however, the parties entered into a lease agreement to
enable the petitioner to continue its operation. After almost two years after said agreement, respondent
demanded that the petitioner vacate the leased premises. When the petitioner refused, respondent initiated an
ex-parte proceeding for the issuance of a writ of possession. Is the issuance of writ of possession proper? (10%)

Answer: Rabuya, p. 484; possession in the concept of owner or holder; Bukidnon Doctors’ Hospital, Inc. vs.
MBTC, G.R. No. 161882, July 8, 2005

No. The law[17] and jurisprudence[18] are clear that in extrajudicial foreclosure proceedings, an order for a writ of
possession is issued as a matter of course, upon proper motion, after the expiration of the redemption period
without the mortgagor exercising the right of redemption, or even during the redemption period provided a bond
is posted to indemnify the debtor in case the foreclosure sale is shown to have been conducted without complying
with the requirements of the law or without the debtor violating the mortgage contract.[19] The rationale for the
ministerial issuance of a writ of possession is to put the foreclosure buyer in possession of the property sold
without delay, since the right to possession is founded on ownership of the property.[20]

However, in the instant case, a writ of possession was not the correct remedy for the purpose of ousting the
petitioner from the subject premises. It must be noted that possession is the holding of a thing or the enjoyment
of a right.[21] It is acquired by the material occupation of a thing or the exercise of a right, or by the fact that a
thing or right is subject to the action of ones will, or by the proper acts and legal formalities established for
acquiring such right.[22] By material occupation of a thing, it is not necessary that the person in possession should
be the occupant of the property; the occupancy can be held by another in his name.[23]Thus Articles 524 and 525
of the Civil Code provide:

Art. 524. Possession may be exercised in one’s own name or in that of another.

Art. 525. The possession of things or rights may be had in one of two concepts: either in
the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership
pertaining to another person.

In other words, an owner of a real estate has possession, either when he himself is physically occupying
the property, or when another person who recognizes his rights as owner is occupying it.

In the case at bar, it is not disputed that after the foreclosure of the property in question and the issuance
of new certificates of title in favor of the respondent, the petitioner and the respondent entered into a contract of
lease of the subject properties. This new contractual relation presupposed that the petitioner recognized that
possession of the properties had been legally placed in the hands of the respondent, and that the latter had taken
such possession but delivered it to the former as lessee of the property. By paying the monthly rentals, the
petitioner also recognized the superior right of the respondent to the possession of the property as owner thereof.
And by accepting the monthly rentals, the respondent enjoyed the fruits of its possession over the subject
property.[24] Clearly, the respondent is in material possession of the subject premises. Thus, the trial courts
issuance of a writ of possession is not only superfluous, but improper under the law. Moreover, as a lessee, the
petitioner was a legitimate possessor of the subject properties under Article 525 of the Civil Code. Thus, it could
not be deprived of its lawful possession by a mere ex parte motion for a writ of possession.

In a nutshell, where a lease agreement, whether express or implied, is subsequently entered into by the mortgagor
and the mortgagee after the expiration of the redemption period and the consolidation of title in the name of the
latter, a case for ejectment or unlawful detainer, not a motion for a writ of possession, is the proper remedy in
order to evict from the questioned premises a mortgagor-turned-lessee. The rationale for this rule is that a new
relationship between the parties has been created. What applies is no longer the law on extrajudicial foreclosure,
but the law on lease. And when an issue arises, as in the case at bar, regarding the right of the lessee to continue
occupying the leased premises, the rights of the parties must be heard and resolved in a case for ejectment or
unlawful detainer under Rule 70 of the Rules of Court.
II
In this case, Ambrosio mortgaged in favor of the petitioner the improvements she made on her land acquired by
a homestead patent. When Amborsio was not able to pay the interest on the loan, she and the petitioner verbally
agreed that she would convey to the latter the possession of the land subject to the condition that the petitioner
would not collect the interest, would introduce improvements thereon and would be entitled to the fruits.
Pursuant to such verbal agreement, the petitioner did all three conditions. After the death of Ambrosio, her heirs
sought to annul the contracts which she entered into with the petitioner on the ground that the same were in
violation of Section 116 of the Public Land Act prohibiting any alienation or encumbrance of lands acquired
under the free patent for a period of five years from the date of the issuance of the patent. This law, however,
allows the pledge or mortgage of the improvements thereon. When the case reached the appellate court, the
Court of Appeals modified the judgment of the lower court by declaring the petitioner possessor in bad faith for
taking the land in violation of Section 116 of the Public Land Act. Is the Court of Appeals correct? (10%)

Answer: Rabuya, p. 491; Mistake of Law; Kasilag vs. Roque, 69 Phil. 217

No. It is a fact that the petitioner is not conversant with the laws because he is not a lawyer. In accepting the
mortgage of the improvements he proceeded on the well-grounded belief that he was not violating the
prohibition regarding the alienation of the land. In taking possession thereof and in consenting to receive its
fruits, he did not know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes
of the contract of antichresis and that the latter, as a lien, was prohibited by section 116. These considerations
again bring us to the conclusion that, as to the petitioner, his ignorance of the provisions of section 116 is
excusable and may, therefore, be the basis of his good faith. The petitioner is deemed a possessor in good faith.

III
In this case, Miguel Escritor filed an application for the titling of a parcel of land located in Atimonan, Quezon.
There being no opposition to his application, the cadastral court rendered a decision on May 15, 1958
adjudicating the lot with its improvements in favor of claimant Escritor and confirming his title thereto.
Immediately thereafter, Escritor took possession of the property. On July 15, 1958, the Court, in an Order,
directed the Chief of the General Land Registration Office to issue the corresponding decree of registration in
favor of Escritor, the decision having become final. On August 2, 1958, Simeon Acuña, filed a petition for
review of the above-mentioned decision contending that it was obtained by claimant Escritor through fraud and
misrepresentation. While the proceedings in this case were going on, Escritor died. His heirs subsequently took
possession of the property. On February 16, 1971 or thirteen years after the disputed decision was rendered, the
court adjudicated in favor of Acuña, ordering the heirs of Escritor to vacate the land. A writ of possession was
later issued and the heirs of Escritor voluntarily gave up their possession. In 1975, Acuña filed another case
against the heirs of Escritor for recovery of damages for the fruits of the land which was allegedly possessed by
the defendants unlawfully for thirteen years. Acuña alleged that the registration of the lot was effectuated by the
deceased Escritor through fraud, malice, and misrepresentation. Hence, according to him, Escritor and his heirs
were possessors in bad faith. The lower court rendered a decision dismissing Acuña’s complaint finding that the
heirs of Escritor were in good faith possessing under just title. On appeal, the Intermediate Appellate Court held
that the heirs of Escritor were possessors in bad faith from 1958 up to 1971 and should be held accountable for
damages. Is the appellate court correct? (10%)

Answer: Rabuya, p. 505; consequences of wrongful possession by decedent; Escritor, Jr. vs. IAC, 155 SCRA
577 (1987)

No. Nevertheless, assuming that claimant Escritor was a possessor in bad faith, this should not prejudice his
successors-in-interest, petitioners herein, as the rule is that only personal knowledge of the flaw in one's title or
mode of acquisition can make him a possessor in bad faith, for bad faith is not transmissible from one person to
another, not even to an heir. As Article 534 of the Civil Code explicitly provides, "one who succeeds by
hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown
that he was aware of the flaws affecting it; ..." The reason for this article is that bad faith is personal and
intransmissible. Its effects must, therefore, be suffered only by the person who acted in bad faith; his heir should
not be saddled with such consequences.
Under Article 527 of the Civil Code, good faith is always presumed, and upon him who alleges bad faith on the
part of a possessor rests the burden of proof. If no evidence is presented proving bad faith, like in this case, the
presumption of good faith remains.

IV
This case involves a parcel of land situated in Binangonan, Rizal and covered by a tax declaration. Prior to
1954, the land was originally declared for taxation purposes in the name of Sinforoso Mendoza, father of
respondent Honorata Mendoza Bolante. Sinforoso was the occupant of the said property until his death in 1930.
When Sinforoso died, his brother (Margarito) took possession of the land and cultivated the same with his son,
Miguel. At the same time, respondent and her mother continued residing on the land. When respondent came of
age in 1948, she paid the realty taxes on the land for the years 1932 up to 1948. In 1953, Margarito declared the
land for taxation purposes in his name and paid the realty taxes beginning 1952. When Margarito died, Miguel
continued cultivating the land. During the time that Margarito and Miguel were cultivating the land, respondent
and her mother were living on the same land. In 1985, Miguel was physically ousted from the property by the
respondent. Who is the preferred possessor, the petitioners (daughters of Margarito and sisters of Miguel) or the
respondent? (10%)

Answer: Rabuya, p. 514; conflict over possession de facto; Cequeña vs. Bolante, G.R. No. 137944, April 6,
2000

The respondent is the preferred possessor. Possession by the petitioners does not prevail over that of the
respondent. Possession by the former before 1985 was not exclusive, as the latter also acquired it before 1985.
The records show that the petitioners father and brother, as well as the respondent and her mother were
simultaneously in adverse possession of the land. Before 1985, the subject land was occupied and cultivated by
the respondent's father (Sinforoso), who was the brother of petitioners' father (Margarito), as evidenced by Tax
Declaration No. 26425.[15] When Sinforoso died in 1930, Margarito took possession of the land and cultivated it
with his son Miguel. At the same time, respondent and her mother continued residing on the lot.

When respondent came of age in 1948, she paid realty taxes for the years 1932-1948.[16] Margarito declared the
lot for taxation in his name in 1953[17] and paid its realty taxes beginning 1952.[18] When he died, Miguel
continued cultivating the land. As found by the CA, the respondent and her mother were living on the land,
which was being tilled by Miguel until 1985 when he was physically ousted by the respondent.[19]

Based on Article 538 of the Civil Code, the respondent is the preferred possessor because, benefiting from her
father's tax declaration of the subject lot since 1926, she has been in possession thereof for a longer period. On
the other hand, petitioners' father acquired joint possession only in 1952. M

V
In his will, A made B administrator of his estate, but gave C the usufruct of a particular house. D was occupying
the house as tenant. For violation of the lease contract, D was being ejected by C, the usufructuary. D said that
C was merely the usufructuary, and was entitled only to collect rent but had no right to select and oust tenants,
this being the right of B, the general administrator of A’s estate. Has C the right to bring the action? (10%)

Answer: Paras, p. 572; Fabie vs. David

Yes. While it is true that there was a general administrator (B), still insofar as that particular house is concerned,
C should be considered the administrator. This is because as usufructuary, he is entitled not only to collect the
rent or income but also to lease the property in favor of another. (Art. 572). And this right to lease carries with it
the right to select and oust tenants for contractual violations. To permit B to arrogate unto himself the right to
select tenants, dictate the conditions of the lease, and to sue when the lessee fails to comply therewith would be
to place the usufructuary C at his mercy. This should not be allowed.

VI
Pablo sold his car to Alfonso who issued a postdated check in full payment therefor. Before the maturity of the
check, Alfonso sold the car to Gregorio who later sold it to Gabriel. When presented for payment, the check
issued by Alfonso was dishonored by the drawee bank for the reason that he, Alfonso, had already closed his
account even before he issued his check. Pablo sued to recover the car from Gabriel alleging that he (Pablo) had
been unlawfully deprived of it by reason of Alfonso's deception. Will the suit prosper? (10%)

Answer: (1990, 1991 BAR)

No. The suit will not prosper because Pablo was not unlawfully deprived of the car although he was unlawfully
deprived of the price. The perfection of the sale and the delivery of the car was enough to allow Alfonso to have
a right of ownership over the car, which can be lawfully transferred to Gregorio. Art. 559 applies only to a
person who is in possession in good faith of the property, and not to the owner thereof. Alfonso, in the problem,
was the owner, and, hence, Gabriel acquired the title to the car. Nonpayment of the price in a contract of sale
does not render ineffective the obligation to deliver. The obligation to deliver a thing is different from the
obligation to pay its price. (EDCA Publishing Co. v. Spouses Santos G.R. No. 80298, April 26, 1990)

VII
On 1 January 1980, Minerva, the owner of a building, granted Petronila a usufruct over the property until 01
June 1998 when Manuel, a son of Petronila, would have reached his 30th birthday. Manuel, however, died on 1
June 1990 when he was only 22 years old. Minerva notified Petronila that the usufruct had been extinguished by
the death of Manuel and demanded that the latter vacate the premises and deliver the same to the former.
Petronila refused to vacate the place on the ground that the usufruct in her favor would expire only on 1 June
1998 when Manuel would have reached his 30th birthday and that the death of Manuel before his 30th birthday
did not extinguish the usufruct. Whose contention should be accepted? (10%)

Answer: (1997 BAR)

A: Petronila's contention is correct. Under Article 606 of the Civil Code, a usufruct granted for the time that
may elapse before a third person reaches a certain age shall subsist for the number of years specified even if the
third person should die unless there is an express stipulation in the contract that states otherwise. In the case at
bar, there is no express stipulation that the consideration for the usufruct is the existence of Petronila's son.
Thus, the general rule and not the exception should apply in this case.

VIII
The owner of a diamond ring entrusted the same to Clarita Sison for the latter to sell upon promise of a
commission. Instead of selling, Clarita pledged the ring with a pawnshop. As soon as he learned of the pledge,
the owner tried to get back the ring from the pawnshop owner, but the latter refused. Can the owner successfully
get back the ring? If so, does the owner have to pay the pawnshop owner the amount borrowed by Clarita?
(10%)

Answer: Paras, p. 565-566; Dizon vs. Suntay, L-30817, September 29, 1972

Yes. Under Art. 559 of the Civil Code, the owner can successfully get back the ring, and he does not have to
reimburse the pawnshop owner the money lent to Clarita. This is because the ring owner had been “unlawfully
deprived” of the same, and this right to recover cannot be defeated even if the pawnshop had acquired
possession of the ring in good faith.

IX
O, the owner of a rice land, leases the same to L who, in turn, subleases it to S. S hires a kasama, K, who
actually cultivates the land, but does not stay thereon. As a matter of fact, nobody lives on the land. Who among
O, L, S, and K may be said to have possession of the rice land? Explain your answer. (10%)

Answer: 1957 Bar Exam

It is submitted that only S and K may be said to have possession of the rice land – the first, in the concept of a
mere holder, but in his own name, and the second also in the concept of a mere holder, but in the name of
another.
There is not much of a question regarding the possession in fact by K. While it is true that he does not stay on
the land, and as a matter of fact, nobody lives there, yet he actually cultivates the land. Therefore, the doctrine
of constructive possession can be applied in this case. (Ramos vs. Director of Lands, 39 Phil. 175). But then
what is the character of his possession? It must be noted that he is only a mere “kasama”, a laborer hired by the
sublessee, S. He is therefore, merely an agent of S; his personality is merely an extension of that of S; he is not a
real possessor, although he is exercising the possession of the real possessor. It is, therefore, submitted that he is
in possession in the name of another, and at the same time, in the concept of a mere holder by virtue of his
agreement with his principal, S.

From what has already been stated, the only logical conclusion as far as S is concerned is that he is the real
possessor, but only in the concept of a mere holder. His possession, however, is being exercised through his
hired laborer, K. Although he is only a mere holder, he is possessing the property in his own name by virtue of
his contract with the lessee.

X
A sold a parcel of land with two buildings thereon to B for P50,000 subject to the condition that A shall receive
from B by way of life pension one-third of the rents of the two buildings. Without B’s fault, the two buildings
were totally destroyed by fire. B now alleges that the right to receive a life pension was extinguished upon the
loss of the buildings. Is such a contention valid? (10%)

Answer: 1978 Bar Exam

No. Such a contention is not valid. In other words, A’s right to receive a life pension was not extinguished by
the loss of the two buildings.

Under the conditions agreed upon by and between A and B that A shall receive from B by way of life pension
one-third (1/3) of the rents of the two buildings, in reality, what was created or constituted was a life usufruct,
with A as usufructuary, whereby A shall always be entitled during his lifetime to one-third (1/3) of the rents of
the two buildings. It is well-settled that rents constitute earnings of the capital invested in the acquisition of both
land and building. There can be land without building, but there can be no building without land. Therefore, in
the case before us, the things in usufruct are the two buildings and the land itself. Under the Civil Code, in order
that there will be an extinguishment of the usufruct, it is essential that the things in usufruct must be totally lost
or destroyed. (Art. 603, No. [5], NCC). Here, there was no total loss. The land remains intact. Therefore,
pursuant to the law on usufructs, A, the usufructuary, shall now have the right to make use of one-third (1/3) of
the land and the materials thereon. This is a temporary measure to keep the usufruct alive until the very things
destroyed are reconstructed or replaced. (Vda. de Albar vs. Fabie, 106 Phil. 855).
Quiz No. 24 – Easements/Servitudes and Nuisance

I
Ronquillo and a few others alleged that they had been in the continuous use of a passage way traversing the land
of Roco in going to a street and the market place of Naga City from their residential land and back for more
than 20 years. In 1953, however, Roco started constructing a Chapel in the middle of said passageway.
Moreover, Roco also fenced the way with barbed wire, thus closing it. Could the easement be acquired by
prescription? (10%)

Answer: Paras, p. 670-671; Ronquillo, et. al. vs. Roco, et. al., L-10619, February 28, 1958

No, because the use of the easement is discontinuous, since the passageway could be used only at intervals. It is
a discontinuous nature of easement. The essence of the servidumbre de paso lies in the power of the dominant
owner to cross the servient tenement without being prevented or disturbed by its owner. As a servitude, it is a
limitation on the servient owner’s rights of ownership because it restricts his right to exclude others from the
property. But such limitation exists only when the dominant owner actually crosses or passes over the servient
estate because when he does not, the servient owner’s right of exclusion is perfect and undisturbed. Since the
dominant owner cannot be continually and uninterruptedly crossing the servient estate, but can do so only at
intervals, the easement is necessarily of a discontinuous nature. Because possession of a right consists in the
enjoyment of that right (Art. 423), and to enjoy a right is to exercise it, it follows that the possession (enjoyment
or exercise) of a right of way is intermittent and discontinuous, and it cannot be acquired by acquisitive
prescription because prescription requires that the possession be continuous or uninterrupted. The case of
Municipality of Dumagas vs. Bishop of Jaro, 34 Phil. 541, does not constitute authority to hold that the
easement of right of way is acquirable by prescription because the ratio decidendi in said case lies in the
application of Art. 567 of the Code of 1889, pursuant to which “when an estate is acquired by purchase,
exchange, or partition is enclosed by other estates of the vendor, exchanger, or co-owner, the latter shall be
obliged to grant a right of way without indemnity, in the absence of an agreement to the contrary” and the word
“prescription” used in the said decision was used not in the sense of adverse possession for 10 or 30 years, but
in the sense of “immemorial usage” that under the law anterior to the Code of 1889 was one of the ways in
which the servitude of right of way could be acquired.

II
In a civil case between the plaintiffs and defendant Antonio Legaspi, a compromise agreement was entered
whereby said defendant granted the plaintiffs and their family, friends, drivers, servants and jeeps a right of
way. Subsequently, however, the plaintiffs, unable to continue with their repair shop, transferred to another
place whereupon the defendant reconstructed his fence and its footing, closing thereby the opening previously
made by the plaintiffs. Thereafter, the plaintiff’s lot was foreclosed by the Development Bank of the Philippines
(DBP) which, later still, conveyed it under a conditional sale to Mrs. Luz Arcilla. Upon her acquisition of the
lot, she demanded of the defendant the re-opening of the fence in question as it was her plan to construct her
house in the said lot. When the defendant refused, the DBP filed with the court a petition to hold the said
defendant in contempt. To this petition, Arcilla later intervened and was so allowed by the court. The DBP and
Arcilla contended that the refusal of the defendant to cause or allow the making of an opening in his fence was a
defiance of the said court’s decision approving the compromise agreement. Pursuant to DBP’s petition, the
court declared the defendant in contempt. Is the court correct in holding the defendant in contempt?

Answer: Rabuya, p. 604; Real and Personal (Easement) servitudes; distinction; Jabonete vs. Monteverde, 16
SCRA 462 (1966)

No. Under the aforesaid order of May 24, 1954, the easement awarded or secured by the lower court to the
plaintiffs was strictly a personal one. The right of way granted was expressly limited to the latter and their
“family, friends, drivers, servants and jeeps.” The servitude established was clearly for the benefit alone of the
plaintiffs and the persons above enumerated and it is clear that the lower court, as well as the parties addressed
by the said order, did not intend the same to pass on to the plaintiffs’ successor-in-interest. In other words, the
right acquired by the original plaintiffs was a personal servitude under Article 614 of the Civil Code, and not a
praedial servitude that inures to the benefit of whoever owns the dominant estate.

In resisting the extension of the aforesaid easement to the latter, the plaintiff’s successor-in-interest, the
respondent-appellant, therefore, was not defying the decision of March 11, 1954 which was then no longer
subsisting, nor the order of May 24, 1954 since the said successors-in-interest had no right thereunder.

Another evidence that the servitude in question was personal to the plaintiffs is the fact that the same was
granted to the latter without any compensation to the respondent-appellant.
III
When Bio Hong Trading Co. (BHTC) acquired a parcel of land from its prior owner, the same was already been
subject to an easement of right of way in favor of the public. Subsequently, the buyer BHTC constructed steel
gates across the alley (to which the encumbrance was imposed) thereby precluding unhampered use thereof.
Because of such closure, Solid Manila Corp. (SMC) filed an injunction case against BHTC claiming that ever
since, it had (as well as other residents of neighboring estates) made use of the above private alley and
maintained and contributed to its upkeep. When the case reached the Court of Appeals, the appellate court held
that since the buyer BHTC acquired title to the property and the alley, there was merger which resulted in the
extinguishment of the easement. SMC, however, claimed that the sale in favor of BHTC excluded the alley. Is
SMC correct?

Answer: Rabuya, p. 610; Inherence or Intransmissibility; Solid Manila Corp. v. Bio Hong Trading Co., 195
SCRA 748 (1991)

Yes. There is therefore no question as to ownership. The question is whether or not an easement exists on the
property, and as we indicated, we are convinced that an easement exists.
It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention that the
deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the tenement and
maintain an independent existence. Thus:

Art. 617. Easements are inseparable from the estate to which they actively or passively belong.9

Servitudes are merely accessories to the tenements of which they form part.10 Although they are possessed of a
separate juridical existence, as mere accessories, they cannot, however, be alienated11 from the tenement, or
mortgaged separately.12
The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argument to
defeat the petitioner's claims, because as an easement precisely, it operates as a limitation on the title of the
owner of the servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the tenement]
measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a
private alley for the benefit of the neighboring estates. . ."13 and precisely, the former owner, in conveying the
property, gave the private owner a discount on account of the easement, thus:

WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the purchase price from
THREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY PESOS
(P3,790,440.) to THREE MILLION FIVE HUNDRED THREE THOUSAND TWO HUNDRED
FORTY PESOS (P3,503,240.00)14

Hence, and so we reiterate, albeit the private respondent did acquire ownership over the property –– including
the disputed alley –– as a result of the conveyance, it did not acquire the right to close that alley or otherwise
put up obstructions thereon and thus prevent the public from using it, because as a servitude, the alley is
supposed to be open to the public.

The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger took
place as a consequence of the sale in favor of the private respondent corporation.

According to the Civil Code, a merger exists when ownership of the dominant and servient estates is
consolidated in the same person.15 Merger then, as can be seen, requires full ownership of both estates.

One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to say, one
constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the general
public. Personal servitudes are referred to in the following article of the Civil Code:

Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons
to whom the encumbered estate does not belong.16

In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easement
pertains to persons without a dominant estate,17 in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the
termination of that relation leaves the easement of no use. Unless the owner conveys the property in favor of the
public –– if that is possible –– no genuine merger can take place that would terminate a personal easement.
In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one, because as we said,
merger is not possible, and secondly, the sale unequivocally preserved the existing easement. In other words,
the answer does not, in reality, tender any genuine issue on a material fact and cannot militate against the
petitioner's clear cause of action.

As a personal servitude, the right-of-way in question was established by the will of the owner.
In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo,27 this Court, speaking through Justice Claro
Recto, declared that a personal servitude (also a right of way in that case) is established by the mere "act"28 of
the landowner, and is not "contractual in the nature,"29 and a third party (as the petitioner herein is a third party)
has the personality to claim its benefits. In his separate opinion, however, Justice Jose Laurel maintained that a
personal or voluntary servitude does require a contract and that "[t]he act of the plaintiff in opening the private
way here involved did not constitute an offer . . . "30 and "[t]here being no offer, there could be no acceptance;
hence no contract."31

IV
Magdaleno purchased from Feliciana an unregistered land in Medellin, Cebu. Prior to the sale, the land was
traversed by a railroad track owned by Bogo-Medellin Milling Co., used for hauling sugar cane. Magdaleno died
later and the land was inherited by his six children. Unknown to them, Bogo-Medellin Milling Co. was able to
have the land occupied by the rail road tracks as its own. The heirs therefore filed a complaint for compensation
and recovery of possession against Bogo-Medellin Milling Co. After trial, the court decided that Bogo-Medellin
Milling Co. now owns the land due to acquisitive prescription under Article 620 of the Civil Code. On appeal,
the Court of Appeals reversed the decision of the trial court and held that the applicable law is Art. 1137
(acquisitive prescription is 30 years). Since only 24 years from 1965 had elapsed when the heirs filed a complaint
against Bomedco in 1989, Bomedcos possession of the land had not yet ripened into ownership. Is this correct?

Answer: Rabuya, 615; Modes of Acquiring Easements; Bogo-Medellin Co., Inc. vs. CA, 407 SCRA 518 (2003)

No. Possession to constitute the foundation of a prescriptive right must be possession under a claim of title, that
is, it must be adverse. The possession of a tax declaration does not apply where the property is declared to be a
mere easement of right of way.

An easement or servitude is a real right, constituted on corporeal immovable property of another, by virtue of
which the owner has to refrain from doing, or must allow someone to do, something on his property for the
benefit of another thing or person. It exists only when the servient and dominant estates belong to two different
owners. It gives the holder of the easement an incorporeal interest on the land but grants no title thereto.
Therefore, an acknowledgment of the easement is an admission that the property belongs to another.

Having held the property by virtue of an easement, petitioner cannot assert that its occupancy since 1929 was in
the concept of an owner (See also Cuayong vs. Benedicto, 37 Phil. 781 [1918])

In this case, the presence of railroad tracks for the passage of petitioners trains denotes the existence of an apparent
but discontinuous easement of right of way. And under Article 622 of the Civil Code, discontinuous easements,
whether apparent or not, may be acquired only by title. Unfortunately, petitioner Bomedco never acquired any
title over the use of the railroad right of way whether by law, donation, testamentary succession or contract. Its
use of the right of way, however long, never resulted in its acquisition of the easement because, under Article
622, the discontinuous easement of a railroad right of way can only be acquired by title and not by prescription.

V
Francisco Sanz was the former owner of a parcel of land, with the buildings and improvements thereon. He
subdivided the lot into three and then sold each portion to different persons. One portion was purchased by
Guillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with the house of strong
materials thereon, was sold to Tan Yanon (respondent). This house has on its northern side, doors and windows
over-looking the third portion, which together with the camarin and small building thereon, after passing
through several hands, was finally acquired by Juan Gargantos (petitioner). Subsequently, Gargantos applied for
a permit to construct a combined residential house and warehouse on his lot. Tan Yanon opposed approval of
this application on the ground that the construction of the building would prevent him from receiving light and
enjoying the view through the window of his house. Gargantos argued Tan Yanon never acquired any easement
either by title or by prescription since there is no deed establishing an easement. He further argued that neither
he nor his predecessors-in-interest have ever executed any deed whereby they recognized the existence of the
easement. In addition, Gargantos claimed that Tan Yanon did not acquire easement by prescription because the
latter never formally forbidden the former from performing any act which would be lawful without the
easement. Did Tan Yanon acquired the right of easement?

Answer: Rabuya, 623; Easement by Apparent Sign or Legal Presumption; Gargantos vs. Tan Yanon, G.R. No.
L-14652, June 30, 1952

Yes. It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-Tibo
case are not applicable herein because the two estates, that now owned by petitioner, and that owned by
respondent, were formerly owned by just one person, Francisco Sanz. It was Sanz who introduced
improvements on both properties. On that portion presently belonging to respondent, he constructed a house in
such a way that the northeastern side thereof extends to the wall of the camarin on the portion now belonging to
petitioner. On said northeastern side of the house, there are windows and doors which serve as passages for light
and view. These windows and doors were in existence when respondent purchased the house and lot from Sanz.
The deed sale did not provide that the easement of light and view would not be established.

This then is precisely the case covered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the
existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless
at the time the ownership of the two estate is divided, the contrary is stated in the deed of alienation of either of
them, or the sign is made to disappear before the instrument is executed. The existence of the doors and
windows on the northeastern side of the aforementioned house, is equivalent to a title, for the visible and
permanent sign of an easement is the title that characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It
should be noted, however, that while the law declares that the easement is to "continue" the easement actually
arises for the first time only upon alienation of either estate, inasmuch as before that time there is no easement
to speak of, there being but one owner of both estates (Articles 530, O.C.C., now Articles 613, N.C.C).

Respondent Tan Yanon's property has an easement of light and view against petitioner's property. By reason of
his easement petitioner cannot construct on his land any building unless he erects it at a distance of not less than
three meters from the boundary line separating the two estates.

VI
Emma bought a parcel of land from Equitable-PCI Bank, which acquired the same from Felisa, the original
owner. Thereafter, Emma discovered that Felisa had granted a right of way over the land in favor of the land of
Georgina, which had no outlet to a public highway, but the easement was not annotated when the servient estate
was registered under the Torrens System. Emma then filed a complaint for cancellation of the right of way, on
the ground that it had been extinguished by such failure to annotate. How would you decide the controversy?
Answer. Bar Question (2001) – Ulep, p. 356
The complaint for cancellation of right of way must fail. The failure to annotate the easement upon the title of
the servient estate is not among the grounds for extinguishing an easement under Art. 631 of the Civil Code.
Under Art. 617, easements are inseparable from the estate to which they actively or passively belong. Once it
attaches, it can only be extinguished under Article 631, and they exist even if they are not stated or annotated as
an encumbrance on the Torrens title of the servient estate. (Answer by UP Law Center)

VII
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?
Answer. Bar Question (2001) – Ulep, p. 386
Romulo will prevail. Under Article 650 of the 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 maybe 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. (Answer by UP Law Center)

VIII
In 2005, Andres built a residential house on a lot whose only access to the national highway was a pathway
crossing Brando's property. Andres and others have been using this pathway (pathway A) since 1980.
In 2006, Brando fenced off his property, thereby blocking Andres' access to the national highway. Andres
demanded that part of the fence be removed to maintain his old access route to the highway (pathway A), but
Brando refused, claiming that there was another available pathway (pathway B) for ingress and egress to the
highway. Andres countered that pathway B has defects, is circuitous, and is extremely inconvenient to use.

To settle their dispute, Andres and Brando hired Damian, a geodetic and civil engineer, to survey and examine
the two pathways and the surrounding areas, and to determine the shortest and the least prejudicial way through
the servient estates. After the survey, the engineer concluded that pathway B is the longer route and will need
improvements and repairs, but will not significantly affect the use of Brando's property. On the other hand,
pathway A that had long been in place, is the shorter route but would significantly affect the use of Brando's
property.

In light of the engineer's findings and the circumstances of the case, resolve the parties' right of way dispute.

Answer: Bar Question (2013) – Ulep, p. 382 - 384

Andres is not entitled to the easement of right of way for Pathway A. Pathway B must be used.
The owner of a dominant estate may validly obtain a compulsory right of way only after he has established the
existence of four requisites, to wit:

1) The dominant estate is surrounded by other immovables and is without adequate outlet to a public
highway;
2) After payment of the proper indemnity;
3) The isolation was not due to the proprietor’s own acts; and
4) The right of way claimed is at a point least prejudicial to the servient estate, and insofar as consistent with
this rule, where the distance from the dominant estate to the public highway may be the shortest (Art. 650,
Civil Code).

However, the Supreme Court has consistently ruled that in case both criteria cannot be complied with, the right
of way shall be established at the point least prejudicial to the servient estate.

The first and fourth requisites are not complied with. First, there is another available outlet to the national highway
(Pathway B). Second, the right of way obtained (Pathway A) is not least prejudicial to Brando’s property, as
evidenced by the reports of the geodetic and civil engineer.

When there is already an existing adequate outlet from the dominant estate to a public highway, even if the said
outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified.
(Costabella Corporation v. CA, G.R. No. 80511, January 25, 1991, 193 SCRA 333; Cristobal vs. Ledesma 291
SCRA 122). The rule that the easement of a right of way shall be established at the point least prejudicial to the
servient estate is controlling. (Quimen vs. CA, G.R. No. 112331, May 29, 1996). (Answered by UP Law Center).

IX
Mr. Bong owns several properties in Pasig City. He decided to build a condominium named Flores de Manila in
one of his lots. To fund the project, he obtained a loan from the National Bank (NB) secured by a real estate
mortgage over the adjoining property which he also owned.

During construction, he built three (3) pumps on the mortgaged property to supply water to the condominium.
After one (1) year, the project was completed and the condominium was turned over to the buyers. However, Mr.
Bong failed to pay his loan obligation to NB. Thus, NB foreclosed the mortgaged property where the pumps were
installed. During the sale on public auction of the mortgaged property, Mr. Simon won in the bidding. When
Mr. Simon attempted to take possession of the property, the condominium owners, who in the meantime
constituted themselves into Flores de Manila Inc. (FMI), claimed that they have earlier filed a case for the
declaration of the existence of an easement before the Regional Trial Court (RTC) of Pasig City and prayed that
the easement be annotated in the title of the property foreclosed by NB. FMI further claimed that when Mr. Bong
installed the pumps in his adjoining property, a voluntary easement was constituted in favor of FMI.
Will the action prosper?

Answer: Bar Question (2014) – Ulep, p. 361

Yes, the action will prosper. Article 624 of the Civil Code provides that when an apparent sign of easement exists
between two estates established or maintained by the owner of both, it shall be considered as a title to the easement
should the owner of two properties alienate one of them, unless at the time the ownership between the two estates
is divided the contrary is provided in the deed of transfer or the apparent sign of easement is removed before the
execution of the deed (Privatization and Management Office vs. Legazpi Towers 300 Inc., G.R. No. 147957, July
22, 2009, 593 SCRA 382). In this case, neither any showing that the apparent sign of the easement was removed
before the sale on public auction, nor that there was an agreement that the easement will no longer continue,
hence, the entitlement of FMI to the easement subsists. (Answer by UP Law Center)

X
Lauro owns an agricultural land planted mostly with fruit trees. Hernando owns an adjacent land devoted to his
piggery business which is two meters higher in elevation. Although Hernando has 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, 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 lower estate of Lauro the obligation to receive the waters descending from the higher estate. Is
Hernando correct?

Answer: Bar Question (2002) – Ulep, p. 433-434

No. 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 waste 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 of the Civil Code, abatement of a nuisance does not preclude recovery of damages by Lauro even for the past
existence of a nuisance. (Answer by UP Law Center)
Quiz No. 25 – Modes of Acquiring Ownership and Donation

I
Carmelo & Bauermann, Inc. (Carmelo) used to own a parcel of land, together with two 2-storey buildings
constructed thereon. It entered into a Contract of Lease with Mayfair Theater Inc. (Mayfair-respondent) for a
period of 20 years. The lease contained a provision granting Mayfair a right of first refusal to purchase the subject
properties. Within the 20-year-lease term -- the subject properties were sold by Carmelo to Equatorial Realty
Development, Inc. (Equatorial-petitioner) for the total sum of P11,300,000, without their first being offered to
Mayfair. Mayfair filed a complaint for rescission of the contract of sale between Carmelo and Equatorial on the
ground that its right of first refusal was violated. Mayfair obtained a favorable judgment and the decree of
rescission became final. When Mayfair tendered the payment of the purchase price with Carmelo, Equatorial, on
the other hand, demanded rentals from Mayfair alleging itself as owner by reason of the contract of sale up to
finality of the decision in the case filed by Mayfair. Is Equatorial has the right to demand rentals from Mayfair?

Answer: Rabuya, p. 711-713; Equatorial Realty Development, Inc. vs. Mayfair Theater, Inc.. 370 SCRA 56
(2001)

No. To better understand the peculiarity of the instant case, let us begin with some basic parameters. Rent is a
civil fruit[16] that belongs to the owner of the property producing it[17] by right of accession.[18] Consequently and
ordinarily, the rentals that fell due from the time of the perfection of the sale to petitioner until its rescission by
final judgment should belong to the owner of the property during that period.
By a contract of sale, one of the contracting parties obligates himself to transfer ownership of and to deliver
a determinate thing and the other to pay therefor a price certain in money or its equivalent.[19]
Ownership of the thing sold is a real right,[20] which the buyer acquires only upon delivery of the thing to him
in any of the ways specified in articles 1497 to 1501, or in any other manner signifying an agreement that the
possession is transferred from the vendor to the vendee.[21] This right is transferred, not by contract alone, but by
tradition or delivery.[22] Non nudis pactis sed traditione dominia rerum transferantur. And there is said to be
delivery if and when the thing sold is placed in the control and possession of the vendee.[23] Thus, it has been held
that while the execution of a public instrument of sale is recognized by law as equivalent to the delivery of the
thing sold,[24] such constructive or symbolic delivery, being merely presumptive, is deemed negated by the failure
of the vendee to take actual possession of the land sold.[25]
Delivery has been described as a composite act, a thing in which both parties must join and the minds of both
parties concur. It is an act by which one party parts with the title to and the possession of the property, and the
other acquires the right to and the possession of the same. In its natural sense, delivery means something in
addition to the delivery of property or title; it means transfer of possession. [26] In the Law on Sales, delivery may
be either actual or constructive, but both forms of delivery contemplate the absolute giving up of the control and
custody of the property on the part of the vendor, and the assumption of the same by the vendee.[27]

Possession Never Acquired by Petitioner


Let us now apply the foregoing discussion to the present issue. From the peculiar facts of this case, it is clear
that petitioner never took actual control and possession of the property sold, in view of respondents timely
objection to the sale and the continued actual possession of the property. The objection took the form of a court
action impugning the sale which, as we know, was rescinded by a judgment rendered by this Court in the mother
case. It has been held that the execution of a contract of sale as a form of constructive delivery is a legal fiction. It
holds true only when there is no impediment that may prevent the passing of the property from the hands of the
vendor into those of the vendee.[28] When there is such impediment, fiction yields to reality - the delivery has not
been effected.[29]
Hence, respondents opposition to the transfer of the property by way of sale to Equatorial was a legally
sufficient impediment that effectively prevented the passing of the property into the latters hands.
This was the same impediment contemplated in Vda. de Sarmiento v. Lesaca,[30] in which the Court held as
follows:
The execution of a public instrument gives rise, therefore, only to a prima facie presumption of delivery. Such
presumption is destroyed when the instrument itself expresses or implies that delivery was not intended; or when
by other means it is shown that such delivery was not effected, because a third person was actually in possession
of the thing. In the latter case, the sale cannot be considered consummated.
However, the point may be raised that under Article 1164 of the Civil Code, Equatorial as buyer acquired a
right to the fruits of the thing sold from the time the obligation to deliver the property to petitioner arose. [32] That
time arose upon the perfection of the Contract of Sale on July 30, 1978, from which moment the laws provide
that the parties to a sale may reciprocally demand performance.[33]Does this mean that despite the judgment
rescinding the sale, the right to the fruits[34] belonged to, and remained enforceable by, Equatorial?
Article 1385 of the Civil Code answers this question in the negative, because [r]escission creates the
obligation to return the things which were the object of the contract, together with their fruits, and the price with
its interest; x x x. Not only the land and building sold, but also the rental payments paid, if any, had to be returned
by the buyer.
At bottom, it may be conceded that, theoretically, a rescissible contract is valid until rescinded. However,
this general principle is not decisive to the issue of whether Equatorial ever acquired the right to collect
rentals. What is decisive is the civil law rule that ownership is acquired, not by mere agreement, but by tradition
or delivery. Under the factual environment of this controversy as found by this Court in the mother case,
Equatorial was never put in actual and effective control or possession of the property because of Mayfairs timely
objection.
As pointed out by Justice Holmes, general propositions do not decide specific cases. Rather, laws are
interpreted in the context of the peculiar factual situation of each case. Each case has its own flesh and blood and
cannot be decided on the basis of isolated clinical classroom principles.[36]
In short, the sale to Equatorial may have been valid from inception, but it was judicially rescinded before it
could be consummated. Petitioner never acquired ownership, not because the sale was void, as erroneously
claimed by the trial court, but because the sale was not consummated by a legally effective delivery of the property
sold.

Benefits Precluded by Petitioners Bad Faith


Furthermore, assuming for the sake of argument that there was valid delivery, petitioner is not entitled
to any benefits from the rescinded Deed of Absolute Sale because of its bad faith. This being the law of the mother
case decided in 1996, it may no longer be changed because it has long become final and executory. Petitioners
bad faith is set forth in the following pertinent portions of the mother case:

First and foremost is that the petitioners acted in bad faith to render Paragraph 8 inutile.

xxx xxx xxx

Since Equatorial is a buyer in bad faith, this finding renders the sale to it of the property in question
rescissible. We agree with respondent Appellate Court that the records bear out the fact that Equatorial was
aware of the lease contracts because its lawyers had, prior to the sale, studied the said contracts. As such,
Equatorial cannot tenably claim to be a purchaser in good faith, and, therefore, rescission lies.

xxx xxx xxx

As also earlier emphasized, the contract of sale between Equatorial and Carmelo is characterized by bad
faith, since it was knowingly entered into in violation of the rights of and to the prejudice of Mayfair. In fact, as
correctly observed by the Court of Appeals, Equatorial admitted that its lawyers had studied the contract of
lease prior to the sale. Equatorials knowledge of the stipulations therein should have cautioned it to look further
into the agreement to determine if it involved stipulations that would prejudice its own interests.

xxx xxx xxx

On the part of Equatorial, it cannot be a buyer in good faith because it bought the property with notice and full
knowledge that Mayfair had a right to or interest in the property superior to its own. Carmelo and Equatorial
took unconscientious advantage of Mayfair.[37] (Italics supplied)

Thus, petitioner was and still is entitled solely to the return of the purchase price it paid to Carmelo; no more,
no less. This Court has firmly ruled in the mother case that neither of them is entitled to any consideration of
equity, as both took unconscientious advantage of Mayfair.[38]
In the mother case, this Court categorically denied the payment of interest, a fruit of ownership. By the same
token, rentals, another fruit of ownership, cannot be granted without mocking this Courts en banc Decision, which
has long become final.
Petitioners claim of reasonable compensation for respondents use and occupation of the subject property
from the time the lease expired cannot be countenanced. If it suffered any loss, petitioner must bear it in silence,
since it had wrought that loss upon itself. Otherwise, bad faith would be rewarded instead of punished.
II
Domingo Melad owned a farm and a residential lot. He and his wife, have no children of their own, had taken
into their home as their ward the spouses Felix Danguilan and Isidra Melad. The latter was Domingo’s niece. The
spouses Felix Danguilan and Isidra Melad lived with Domingo Melad and his wife and helped Domingo with the
cultivation of the farm. Thereafter, Domingo executed a private document giving the spouses Felix Danguilan
and Isidra Melad his two lots, on the understanding that the latter would take care of the grantor and would bury
him upon his death, which obligation the spouses fulfilled. Is the donation of the two lots valid considering that
the same were not embodied in a public instrument?

Answer: Rabuya, p. 761; Danguilan vs. IAC, 168 SCRA 22 (1988)

Yes. It is our view, considering the language of the two instruments, that Domingo Melad did intend to donate
the properties to the petitioner, as the private respondent contends. We do not think, however, that the donee was
moved by pure liberality. While truly donations, the conveyances were onerous donations as the properties were
given to the petitioner in exchange for his obligation to take care of the donee for the rest of his life and provide
for his burial. Hence, it was not covered by the rule in Article 749 of the Civil Code requiring donations of real
properties to be effected through a public instrument. The case at bar comes squarely under the doctrine laid down
in Manalo v. De Mesa, 14 where the Court held:

There can be no doubt that the donation in question was made for a valuable consideration, since the
donors made it conditional upon the donees' bearing the expenses that might be occasioned by the death
and burial of the donor Placida Manalo, a condition and obligation which the donee Gregorio de Mesa
carried out in his own behalf and for his wife Leoncia Manalo; therefore, in order to determine whether
or not said donation is valid and effective it should be sufficient to demonstrate that, as a contract, it
embraces the conditions the law requires and is valid and effective, although not recorded in a public
instrument.

III
X and Y staged a daring bank robbery in Manila at 10:30 in the morning of a regular business day, and escaped
with their loot of two (2) bags, each containing P50,000. During their flight to elude the police, X and Y entered
the nearby locked house of A, then working in Quezon City office. From A’s house, X and Y stole a box
containing cash totaling P50,000 which box A had been keeping in deposit for his friend B. In their hurry, X
and Y left in A’s bedroom one (1) of the bags which they had taken from the bank. With X and Y now at large
and nowhere to be found, the bag containing P50,000 is now claimed by B, by the mayor of Manila and by the
bank. B claims that the depositary, A, by force majeure had obtained the bag of money in place of the box of
money deposited by B. The Mayor of Manila, on the other hand, claims that the bag of money should be
deposited with the Office of the Mayor as required of the finder by the provisions of the Civil Code. The bank
resists the claim of B and the Mayor of Manila. To whom should A deliver the bag of money? Decide with
reasons.

Answer: Bar Question (1992) – Aquino, p. 224-225

A should deliver the bag of money to the Bank. Art. 719 of the New Civil Code provides that “whoever finds a
movable, which is not treasure, must return it to its previous possessor.” Art. 719 likewise provides that if the
owner is unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the
finding has taken place. Since the bank is known to be the owner of the bag of money, then the same should be
delivered to the bank; there is no need to deposit it with the Mayor.

IV
A gave his diamond ring worth P10,000.00 to his friend B as a birthday gift, which the latter accepted with
thanks. Two weeks later, upon learning that B was courting his (A’s) girlfriend, A asked B to return the ring.
May B legally refused to return the ring? Reasons.

Answer: Bar Question (1966) – Ulep, p. 519-520

If A gave the diamond ring in writing and the latter accepted the gift also in writing, the donation is perfectly
valid. B therefore, can legally refuse to return the ring to A. However, if the donation and/or the acceptance is
not in writing, then the donation is void. B therefore, cannot refuse to return the ring to A. Formalities
prescribed by law for making of donations, whether of personal or real property, are essential for validity. Thus,
the last paragraph of Art. 748 states that “If the value of the personal property donated exceeds five thousand
pesos, the donation and the acceptance shall be made in writing. Otherwise, the donation shall be void.”
(Answer by Prof. Desiderio Jurado)

V
On January 2, 1986, A executed a deed of donation inter vivos of a parcel of land to Dr. B who had earlier
constructed thereon a building in which researches on the dreaded disease AIDS were being conducted. The
deed acknowledged before a notary public was handed over by A to Dr. B who received it. A few days after, A
flew to Davao City. Unfortunately, the airplane he was riding crashed on landing, killing him. Two days after
the unfortunate incident, Dr. B, upon advice of a lawyer, executed a deed acknowledged before a notary public
accepting the donation. Is the donation effective? Explain your answer.

Answer: Bar Question (1993) – Ulep, p. 520

No. The donation is not effective. The law requires that the separate acceptance of the donee of an immovable
must be done in a public document during the lifetime of the donor. In this case, B executed the deed of
acceptance before a notary public after the donor had already died. (Answer by UP Law Center)

VI
Spouse Michael and Linda donated a 3 hectare residential land to the City of Baguio on the condition that the
city government would build thereon a public park with a boxing arena, the construction of which shall
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 in its name. Five years elapsed but the public park with the boxing arena
was never started. Considering the failure of the donee to comply with the condition of the donation, the donor
spouses sold the property to Ferdinand who then sued to recover the land from the city government. Will the
suit prosper?

Answer: Bar Question (1991) – Ulep, p. 544-545

No. Ferdinand 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 remains valid. Hence, Spouses Michael and
Linda had no right to sell the land to Ferdinand. One cannot give what he does not have. What the donors
should have done first was to have the donation annulled or revoked. After that was done, they could validly
have disposed of the land in favor of Ferdinand. (Answer by Law Center)

VII
Elated that her sister who had been married for five years was pregnant for the first time, Alma donated
P100,000 to the unborn child. Unfortunately, the baby died one hour after delivery. May Alma recover the
P100,000 that she had donated to said baby before it was born considering that the baby died? Stated otherwise,
is the donation valid and binding? Assume that the intra-uterine life of the child is more than seven months.
Explain.

Answer: Bar Question (1999) – Aquino, p. 237

Yes, if the donation was accepted by Alma’s sister. Article 742 of the New Civil Code provides that “Donations
made to conceived and unborn children may be accepted by those who would legally represent them if they
were already born.” Since the child had an intra-uterine life of more than seven months, it is considered alive at
the time it is completely delivered from the mother’s womb. In the present case, the baby died after one hour
after it was delivered from the mother’s womb, hence, the donation is valid.

VIII
A donated to X a parcel of land in 1980. The donation was made in a public instrument. The deed of donation
was entitled “Donation Inter Vivos” There is, however, a provision in the deed to the effect that, although the
land donated shall be delivered immediately to X upon the perfection of the donation with full right to enjoy all
of the fruits thereof, “title thereto shall pass to the donee only upon the donor’s death.” Upon the death of A, his
widow and only heir, B, brought an action for the recovery of the property on the ground that the donation is a
donation mortis causa and not a donation inter vivos. Will the action prosper?

Answer: Bar Question (1990) – Jurado, p. 385


Yes, the action will prosper. In Bonsato vs. Court of Appeals, and Howard vs. Court of Appeals, the Supreme
Court declared that in order that a donation will be considered a disposition post mortem, it should reveal any of
the following characteristics:

1) Convey no title or ownership to the transferee before the death of the transferor, or, what amounts to the
same thing, that the transferor should retain the ownership, full or naked, and control of the property
while alive;
2) That before his death the transfer should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the
property conveyed;
3) That the transfer should be void if the transferor should survive the transferee.
It is clear from the facts stated in the problem that the donation reveals the first characteristic. Hence, it is a
disposition post mortem. Therefore, in order that the donation can take effect, it is essential that it must be made
in a will executed in accordance with all of the formalities prescribed by law (Art. 728, CC). Since this requisite
has not been complied with, the donation in the instant case is void or inexistent.

IX
The Roman Catholic Church accepted a donation of a real property located in Lipa City. A deed of donation
was executed, signed by the donor, Don Mariano, and the donee, the Church, as represented by Fr. Damian.
Before the deed could be notarized, Don Mariano died. Is the donation valid? (2014 BAR)

A: The donation is void. The donation of an immovable property must be in a public instrument in order for it to
be valid. In this case, the donor died even before the notarization of the deed of donation. Hence, it does not
satisfy the requirement of being in a public instrument for the donation to be valid.

X
Anastacia purchased a house and lot on installments at a housing project in Quezon City. Subsequently, she was
employed in California and a year later, she executed a deed of donation, duly authenticated by the Philippine
Consulate in Los Angeles, California, donating the house and lot to her friend Amanda. The latter brought the
deed of donation to the owner of the project and discovered that Anastacia left unpaid installments and real
estate taxes. Amanda paid these so that the donation in her favor can be registered in the project owner's office.
Two months later, Anastacia died, leaving her mother Rosa as her sole heir. Rosa filed an action to annul the
donation on the ground that Amanda did not give her consent in the deed of donation or in a separate public
instrument. Amanda replied that the donation was an onerous one because she had to pay unpaid installments
and taxes; hence her acceptance may be implied. Who is correct? (2000 BAR)

A: Rosa is correct because the donation is void. The property donated was an immovable. For such donation to
be valid, Article 749 of the New Civil Code requires both the donation and the acceptance to be in a public
instrument. There being no showing that Amanda's acceptance was made in a public instrument, the donation is
void. The contention, that the donation is onerous and therefore, need not comply with Article 749 for validity
is without merit. The donation is not onerous because it did not impose on Amanda the obligation to pay the
balance on the purchase price or the arrears in real estate taxes. Amanda took it upon herself to pay those
amounts voluntarily. For a donation to be onerous, the burden must be imposed by the donor on the donee. In
the problem, there is no such burden imposed by the donor on the donee. The donation not being onerous, it
must comply with the formalities of Article 749.