CIVIL LAW POINTERS

2018 Bar Examinations

Atty. R.P. Pacilan

1. WHEN DO LAWS TAKE EFFECT?

General Rule: 15 days after completion of publication in OG or newspaper of general

Circulation

Exception: The law can provide for its own date of effectivity, i.e., less than or greater
than 15 days after publication

• Publication is MANDATORY (even if the law provides its own date of effectivity)
• Publication must be in full (otherwise it is not deemed published at all) since its
PURPOSE is to inform the public of its contents

2. RETROACTIVITY: Generally, laws are not retroactive.

Exceptions:

1. Penal laws when favorable to the accused who is not a habitual delinquent
2. Interpretative statutes
3. When the law itself expressly provides
- Exception to the exception:
a. ex post facto law
b. when retroactivity impairs the obligation of contract
4. Remedial statutes
5. Curative statutes
6. Emergency laws
7. Laws creating new rights

3. LAWS APPLICABLE:

a. Penal Laws – principle of territoriality applies, those of public security and safety –
obligatory upon all who live or sojourn in the Philippines.
b. Status Laws – principle of nationality applies, Laws relating to family rights and duties
or to the status, condition and legal capacity of persons binding upon Filipino
citizens even though living abroad.

Exception: Article 26(2) of Family Code

c. Laws on property – lex rei sitae: real property as well as personal property is subject to
the law of the country where it is situated

d. Laws on forms and solemnities – lex loci celebrationis applies

4. DISTINGUISH LEX NATIONALIS, LEX REI SITAE AND LEX LOCI

CELEBRATIONIS
5. What is marriage?

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6. What are the requisites of a valid marriage?
7. Where should marriage be solemnized?

General Rule: Must be solemnized publicly, and not elsewhere, in the:

1. Chambers of the judge or in open court
2. Church, chapel or temple
3. Office of consul-general, consul or viceconsul

Exceptions:
1. Marriage at the point of death (articulo mortis)
2. Marriage in remote places
3. Marriage at a house or place designated by the parties in a sworn statement upon
their written request to the solemnizing officer

8. ART. 36 of FC - P.I. refers to no less than a mental (not physical) incapacity that causes a
party to be truly noncognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage which, as expressed by Article 68
of the Family Code, include their mutual obligations to live together, observe love,
respect and fidelity and render help and support.

Obligations referred to are those mentioned in Articles 68 up to 71 of the Family Code as

regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in
regard to parents and their children . Republic vs. CA cited in BACCAY vs. BACCAY
and REPUBLIC OF THE PHILIPPINES December 1, 2010

9. Is failure to perform the obligations of a parent to a child caused by P.I. a ground for
nullity? Yes.

10. What consists ABSOLUTE COMMUNITY Property?

11. What is Conjugal Partnership of Gains? The spouses contribute the following to a
common fund: a.) Proceeds, products, fruits and income of separate properties of
spouses; b.) Everything acquired by spouses through their efforts; c.) Everything acquired
by spouses through chance. It Includes:

1. Fruits of conjugal property due or received during the marriage and net fruits of
separate property
2. Those acquired through occupation
3. Livestock in excess of what was brought to the marriage
4. Those acquired during the marriage with conjugal funds
5. Share in hidden treasure
6. Those obtained from labor, industry, work or profession of either or both spouse
7. Those acquired by chance

Excluded from CPG, hence exclusive property:

1. That brought into the marriage as his/her own

2. That acquired during the marriage gratuitously
3. That acquired by redemption, barter or exchange with exclusive property
4. That purchased with exclusive money of spouse

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12. Art. 147 and 148 of FC

13. Definition of family: The family, being the foundation of the nation, is a basic social
institution which public policy cherishes and protects. Consequently, family relations are
governed by law and no custom, practice or agreement destructive of the family shall be
recognized or given effect. (Art. 149)

14. State policy on family: Art. 2, Section 12 of the 1987 Constitution declares “The State
recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.”

15. Constitutional provisions on Family

16. What is family home?
17. ARTICLE 155. The family home shall be exempt from execution, forced sale or
attachment except for: for nonpayment of taxes; for debts incurred prior to the
constitution of the family home; for debts secured by mortgages on the premises before
or after such constitution; and for debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished material for the
construction of the building.
18. ENRICO S. EULOGIO and NATIVIDAD V. EULOGIO vs.PATERNO C. BELL,
SR., et al. G.R. No. 186322, July 8, 2015: To warrant the execution sale of respondents’
family home under Article 160, petitioners needed to establish these facts: (1) there was an
increase in its actual value; (2) the increase resulted from voluntary improvements on
the property introduced by the persons constituting the family home, its owners or
any of its beneficiaries; and (3) the increased actual value exceeded the maximum allowed
under Article 157.

19. WHO MAY IMPUGN THE LEGITIMACY OF A CHILD? General Rule: Only
the husband can impugn the legitimacy of a child
Exceptions: The heirs of the husband may impugn the child’s filiation in the
following cases:
a. If the husband dies before the expiration of period for filing the action
b. If the husband dies after filing without desisting
c. If the child was born after the death of the husband

20. Remedy available in cases involving declaration of presumptive death when the affidavit
of reappearance is registered in the civil registry: Contest the fact of reappearance. See
Art. 42 of FC.
21. Void marriages under Arts. 35, 36, 37, 38
22. Voidable marriages under Art. 45 in relation to Art. 46
23. What is marriage settlement? Effect if not registered in civil registry and ROD—will not
bind third persons.
24. Properties excluded from Conjugal Partnership of Gains
25. In Legitimation: M and W, both 17 years of age, cohabited with each other. They begot a
child, C. C was conceived at the time that M and W are still minors. If they marry six (6)

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 years after birth of the child, may C be legitimated? Yes. The child was conceived at time
that the only legal impediment to marry each other is age; hence, C may be legitimated.
26. Grounds to impugn legitimacy; when to file; who can file
27. When to claim legitimate/illegitimate filiation?
28. Domestic and Inter-country adoption; who may be adopted; who can adopt
29. Need for joint adoption; execution of affidavit of consent of spouse is not enough
30. Exceptions to joint adoption
31. Under RA 8552, adopter can no longer rescind the adoption

32. a. What are immovable properties? Art. 415

b. What movable properties? Art. 416

33. Properties of public dominion - The following things are property of public dominion: (1)
Those intended for public use, such as roads, canals, rivers, torrents, ports, and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character; (2)
Those which belong to the State, without being for public use, and are intended for some
public service or for the development of the national wealth. (Art. 420)

34. PATRIMONIAL PROPERTY is property pertaining to the State which is not intended
for public use, public service, or for the development of the national wealth. It is intended
rather for the attainment of the economic ends of the State, that is, for subsistence.

35. Property owner has the right to fence his property and prevent third persons from using the
same. It is a valid exercise of their right as owners, hence not contrary to morals, good
customs or public policy. SPOUSES CRISTINO et al. vs COURT OF APPEALS et al.
(G.R. No. 116100, February 9, 1996)
36. ART. 487. Any one of the co-owners may bring an action in ejectment.

A co-owner may bring such an action without the necessity of joining all the other co-
owners as co-plaintiffs because the suit is presumed to have been filed to benefit his co-
owners. X x x x

In Adlawan vs. Adlawan (G.R. No. 161916), the SC dismissed the case since petitioner
brought the suit for unlawful detainer in his name alone and for his own benefit to the
exclusion of the heirs.

37. In Hermogena G. Engreso with Spouse Jose Engreso v. Nestoria De La Cruz and Herminio
De La Cruz, (G.R. No.148727, 9 April 2003) the SC reiterated the rule that a co-owner
cannot recover a material or determinate part of a common property prior to partition.
38. 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.
39. Article 1620: Right of co-owner to exercise legal redemption

Art. 1623 of the Civil Code provides: The right of legal pre-emption or redemption shall
not be exercised except within thirty days from the notice in writing by the prospective
vendor, or by the vendor, as the case maybe. The deed of sale shall not be recorded in the
Registry of Property, unless accompanied by an affidavit of the vendor that he has given
written notice thereof to all possible redemptioners.

40. Who gives the notice: Vendor.

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 Etcuban v. Court of Appeals (1962 Case): notice to the co-owners of the sale of the share
of one of them given by the vendees through their counterclaim in the action for legal
redemption is sufficient. Later reversed by the SC and reverted to the previous ruling.
requiring notice from vendor.

Salatandol v. Retes: notice must be given by the vendor, not by anyone else; it could not
even be given by the Register of Deeds

41. When co-owner gets to know of the sale, even without notice given to him by the vendor,
can he redeem?

Yes. It would be unjust when the subject sale has already been established to further delay
petitioner's exercise of her right of legal redemption by requiring that notice be given by
the vendor before petitioner can exercise her right. Note: due to lack of notice, the 30-day
period has not yet commenced to run but co-owner may not exercise the right)

Receipt of summons constitutes actual knowledge on the basis of which a co-owner may
now exercise her right of redemption within 30 days from finality of this decision.
ADALIA B. FRANCISCO vs. ZENAIDA F. BOISER, G.R. No. 137677, May 31, 2000

42. An action for reconveyance is a legal and equitable remedy granted to the rightful owner
of land which has been wrongfully or erroneously registered in the name of another for the
purpose of compelling the latter to transfer or reconvey the land to him. In an action for
reconveyance, the decree of registration is respected as incontrovertible. What is sought
instead is the transfer of the property, which has been wrongfully or erroneously registered
in another person’s name, to its rightful and legal owner, or to one with a better right.
However, such recourse cannot be availed of once the property has passed to an innocent
purchaser for value. For an action for reconveyance to prosper, the property should not
have passed into the hands of an innocent purchaser for value.

Note: Section 53, paragraph 3 of Presidential Decree (PD) No. 1529:

In all cases of registration procured by fraud, the owner may pursue all his legal and
equitable remedies against the parties to such fraud without prejudice, however, to the
rights of any innocent holder for valueof a certificate of title.

Article 1456. If property is acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for the benefit of the person from
whom the property comes.

Note: The prescriptibility of actions for reconveyance apply when the action is based on
fraud, or when the contract used as basis for the action is voidable. Prescription is 10 years.

If the registration of the land is fraudulent, the person in whose name the land is registered
holds it as a mere trustee, and the real owner is entitled to file an action for reconveyance
of the property. (Mendizabel, et al. vs. Apao, et al., G.R. No. 143185, February 20, 2006).
An action for reconveyance of registered land based on implied trust prescribes in 10 years,
the point of reference being the date of registration of the deed or the date of the issuance
of the certificate of title over the property.

43. May an action for reconveyance succeed when the donation of an immovable property
has not been properly accepted? Yes. SUMIPAT, et al. vs. BANGA et al. (G.R. No.
155810, August 13, 2004)

Title to immovable property does not pass from the donor to the donee by virtue of a deed
of donation until and unless it has been accepted in a public instrument and the donor duly

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 notified thereof. X x x x Where the deed of donation fails to show the acceptance, or where
the formal notice of the acceptance, made in a separate instrument, is either not given to
the donor or else not noted in the deed of donation and in the separate acceptance, the
donation is null and void.

xxxxx

Note: Article 1410 states that "The action or defense for the declaration of the inexistence
of a contract does not prescribe."

Passage of time cannot cure the fatal flaw in an inexistent and void contract. The defect of
inexistence of a contract is permanent and incurable; hence, it cannot be cured either by
ratification or by prescription

It is well-settled that when there is a showing of illegality, the property registered is deemed
to be simply held in trust for the real owner by the person in whose name it is registered,
and the former then has the right to sue for the reconveyance of the property. The action
for the purpose is also imprescriptible. As long as the land wrongfully registered under the
Torrens system is still in the name of the person who caused such registration, an action in
personam will lie to compel him to reconvey the property to the real owner.

44. Registration under Section 14(1) of P.D. No. 1529 is based on possession and occupation
of the alienable and disposable land of the public domain since June 12, 1945 or earlier,
without regard to whether the land was susceptible to private ownership at that time.

Registration under Section 14(2) of P.D. No. 1529 is based on acquisitive prescription and
must comply with the law on prescription as provided by the Civil Code. In that regard,
only the patrimonial property of the State may be acquired by prescription. For
acquisitive prescription to set in, the land being possessed and occupied must already be
classified or declared as patrimonial property of the State. Otherwise, no length of
possession would vest any right in the possessor if the property has remained land of the
public dominion. Malabanan stresses that even if the land is later converted to patrimonial
property of the State, possession of it prior to such conversion will not be counted to meet
the requisites of acquisitive prescription. An application for registration based on Section
14(2) of P.D. No. 1529 must, therefore, establish the following requisites, to wit: (a) the
land is an alienable and disposable, and patrimonial property of the public domain; (b) the
applicant and its predecessors-in-interest have been in possession of the land for at least 10
years, in good faith and with just title, or for at least 30 years, regardless of good faith or
just title; and (c) the land had already been converted to or declared as patrimonial property
of the State at the beginning of the said 10-year or 30-year period of possession.
REPUBLIC OF THE PHILIPPINES vs. ZURBARAN REALTY AND DEVELOPMENT
CORPORATION (G.R. No. 164408 March 24, 2014)

45. A allegedly owned a registered lot, title of which was given to X for safekeeping in 1945.
X allegedly employed fraud and bad faith by drafting the Adjudication and Absolute Sale
of a Parcel of Registered Land on January 9, 1949, and transferred the title of the land to
his name with the issuance of TCT No. 35282 on June 17, 1965. In 1995, A wanted to
recover the property. In his answer, X among others raised prescription. Rule.
46. Article 1456 of the Civil Code provides that a person acquiring property through fraud
becomes, by operation of law, a trustee of an implied trust for the benefit of the real owner
of the property. The prescriptive period to recover property obtained by fraud or mistake,
giving rise to an implied trust under Article 1456 of the Civil Code, is 10 years pursuant to
Article 1144. The prescriptive period to enforce the constructive trust shall be counted from
the alleged fraudulent registration or date of issuance of the certificate of title over the
property.

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47. What is PRINCIPLE OF SELF HELP? The doctrine of self-help is akin to self defense
and available only when possession has not yet been lost. If if already lost, aggrieved party
must resort to judicial process. ELEMENTS OF SELF-HELP:

a. Person exercising rights is owner or lawful possessor

b. Can only be exercised at the time of an actual or threatened unlawful physical
invasion of his property
c. Use force as may be reasonably necessary to repel or prevent it.

48. What is the state of necessity? The state of necessity is the principle which authorizes the
destruction of a property which is lesser in value to avert the danger poised to another
property the value of which is much greater.

Note: The owner of the sacrificial property is obliged to tolerate the act of
destruction but subject to his reimbursement by all those who benefited.

In case of conflict between the exercise of the right of self-help and a proper
and licit state of necessity, the latter prevails because there is no unlawful
aggression when a person or group of persons acts pursuant to the right
given in a state of necessity.

49. Builder in good faith - The term "builder in good faith" as used in reference to Article
448 of the Civil Code, refers to one who, not being the owner of the land, builds on that
land believing himself to be its owner and unaware of the land, builds on that land,
believing himself to be its owner and unaware of the defect in his title or mode of
acquisition. The essence of good faith lies in an honest belief in the validity of one's right,
ignorance of a superior claim, and absence of intention to overreach another.
50. Under Art. 1678, the lessee is entitled to get ½ of the value of improvements introduced
in good faith, upon termination of the contract; if lessor refuses, lessee may remove
improvements even if this will cause damage to the property but shall avoid unnecessary
damage. The rule does not apply to those who possess property by mere tolerance of the
owners, without a contractual right.
51. Prescription does not lie against a registered owner. It has been ruled that no title to
registered land in derogation to that of the registered owner shall be acquired by
prescription or adverse possession. Neither can prescription be allowed against the
hereditary successors of the registered owner.
52. Builder in Good Faith vs. Builder in Bad Faith, their rights and obligations.
53. Note that the landowner can make a choice - either by appropriating the building by paying
the proper indemnity or obliging the builder to pay the price of the land. The choice belongs
to the owner of the land. Also, he cannot refuse to exercise either option.

Depra v Dumlao 136 SCRA 475 (1985): Owner’s right to remove improvement is
available only after landowner has opted to sell the land and the builder refused to pay for
the same. But where the land’s value is considerably more than the improvement, the
landowner cannot compel the builder to buy the land. In such event, a “forced lease” is
created and the court shall fix the terms thereof in case the parties disagree thereon.

Ballatan v CA 304 SCRA 34 (1999) The court cannot make the choice in behalf of the
owner of the land.

Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion which
they gradually receive from the effects of the current of the waters.

54. What is alluvium?

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55. What is accretion?

Answer: ACCRETION is the process whereby the soil is so deposited

Note: ESSENTIAL ELEMENTS OF ALLUVIUM:

a. Result of the action of the waters of the river (or sea)

b. Deposit of soil or sediment be gradual and imperceptible

c. the land where accretion takes place is adjacent to the banks of ricer (or the
sea coast)

Note: Art. 459. Whenever the current of a river, creek or torrent segregates from
an estate on its bank a known portion of land and transfers it to another estate,
the owner of the land to which the segregated portion belonged retains the
ownership of it, provided that he removes the same within two years.

56. Avulsion- the process whereby a portion of a land is segregated from an estate by the
current of a river, creek or torrent and transferred to another estate.

Note: ESSENTIAL ELEMENTS OF AVULSION:

1. The segregation and transfer must be caused by the current of a river, creek or
torrent
2. Sudden or abrupt
3. Portion of land must be known or identifiable

57. Laches- the failure or neglect, for an unreasonable and unexplained length of time, to do
that which, by exercising due diligence, could or should have been done earlier; it is
negligence or omission to assert a right within a reasonable time, warranting the
presumption that the party entitled to assert it either has abandoned or declined to assert it.
58. X is the registered owner of a parcel of land occupied by Y. Y's occupancy over the land
lasted for more than 30 years. X wanted to evict Y who raised the defense of laches. Rule
on Y's defense.

Answer: Y's defense is not tenable. The registered owner's right to eject any person illegally
occupying his property is not barred by laches. (SPOUSES MARCOS R. ESMAQUEL
and VICTORIA SORDEVILLA vs. MARIA COPRADA, G.R. No. 152423, December
15, 2010). This right is imprescriptible. Even if it be supposed that they were aware of the
petitioners' occupation of the property, and regardless of the length of that possession, the
lawful owners have a right to demand the return of their property at any time as long as the
possession was unauthorized or merely tolerated, if at all. This right is never barred by
laches.

59. What are the different types of heirs?

Answer: The following are the different types of heirs:

a. Compulsory – t h e y a r e t h o s e who succeed by force of law to some
portion of the inheritance, in an amount predetermined by law, of which
they cannot be deprived by the testator, except by a valid disinheritance
b. Voluntary or Testamentary – those who are instituted by the testator in his
will, to succeed to the portion of the inheritance of which the testator can freely
dispose
c. Legal or Intestate – those who succeed to the estate of the decedent who dies
without a valid will, or to the portion of such estate not disposed of by will

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60. The state of being forgetful does not necessarily make a person mentally unsound so as to render
him unfit to execute a Will. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time
of making the will to know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the.

61. Collation: Collation has two distinct concepts: first, it is a mere mathematical operation by
the addition of the value of donations made by the testator to the value of the hereditary
estate; and second, it is the return to the hereditary estate of property disposed of by
lucrative title by the testator during his lifetime. Collation takes place when there
are compulsory heirs, one of its purposes being to determine the legitime and the free
portion. If there is no compulsory heir, there is no legitime to be safeguarded.

62. What are the types of compulsory heirs?: There are 3 types of compulsory heirs, namely:
primary, secondary, and concurring. The primary compulsory heirs are those who have
precedence over and exclude other compulsory heirs; legitimate children and descendants
are primary compulsory heirs. The secondary compulsory heirs are those who succeed only
in the absence of the primary heirs; the legitimate parents and ascendants are secondary
compulsory heirs. The concurring compulsory heirs are those who succeed together with
the primary or the secondary compulsory heirs; the illegitimate children, and the surviving
spouse are concurring compulsory heirs

63. Note that the failure of the attestation clause to state the number of pages on which the will
was written remains a fatal flaw, despite Article 809 which states that in the absence of bad
faith, forgery, or fraud, or undue and improper pressure and influence, defects and
imperfections in the form of attestation shall not render the will invalid if it is proved that
the will was in fact executed and attested in substantial compliance with all the
requirements of article 805.

64. While X, the testator, was affixing his signature in the will, one of the instrumental
witnesses, Y, checked on his mobile phone for messages. Will this inattentiveness of Y in
witnessing the execution of the will affect its validity?

Answer: No. The term "in the presence" does not necessarily mean that the witness actually
saw the act of signing, but only the possibility of seeing without physical obstruction. In
one case, the court held that even if a witness merely turned his back, the signing is still
considered as done in the witness' presence.

65. Attestation vs. subscription: Attestation refers to the act of witnessing execution of will
by testator in order to see and take note mentally those things are done which the
statute requires for the execution of a will and that the signature of the testator exists
as a fact. While subscription pertains to the manual act of instrumental witnesses in
affixing their signature to the instrument.
66. Legitime - that part of the testator's property which he cannot dispose of because the law
has reserved it for certain heirs who are, therefore, called compulsory heirs. Article 886
67. How is the legitime determined? To determine the legitime, the value of the property
left at the death of the testator shall be considered, deducting all debts and charges, which
shall not include those imposed in the will.

To the net value of the hereditary estate, shall be added the value of all donations by the
testator that are subject to collation, at the time he made them. Article 908.

68. What is reserva troncal? - The principle of RT is provided for in Art. 891 of CC. Thus,
the ascendant who inherits from his descendant any property which the latter may have

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 acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired by operation of law for the benefit of
relatives who are within the third degree and belong to the line from which said property
came.

In MARIA MENDOZA et al. vs. JULIA POLl CARPIO DELOS SANTOS, et al.
G.R. No. 176422, March 20, 2013, the Court held: There are three (3) lines of
transmission in reserva troncal. The first transmission is by gratuitous title, whether by
inheritance or donation, from an ascendant/brother/sister to a descendant called the
prepositus. The second transmission is by operation of law from the prepositus to the
other ascendant or reservor, also called the reservista. The third and last transmission is
from the reservista to the reservees or reservatarios who must be relatives within the third
degree from which the property came.

69. The parties involved in RT are:

(1) The ascendant or brother or sister from whom the property was received by the
descendant by lucrative or gratuitous title;

(2) The descendant or prepositus (propositus) who received the property;

(3) The reservor (reservista), the other ascendant who obtained the property from the
prepositus by operation of law; and

(4) The reservee (reservatario) who is within the third degree from the prepositus and
who belongs to the (linea o tronco) from which the property came and for whom the
property should be reserved by the reservor

Note: The reservor has the legal title and dominion to the reservable property but subject to
the resolutory condition that such title is extinguished if the reservor predeceased the
reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject
to the reservation. The transferee gets the revocable and conditional ownership of the
reservor. The transferee’s rights are revoked upon the survival of the reservees at the time of
the death of the reservor but become indefeasible when the reservees predecease the reservor

70. Fideicommissary substitution - A fideicommissary substitution by virtue of which the

fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to
a second heir the whole or part of the inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one degree from the heir originally instituted,
and provided further, that the fiduciary or first heir and the second heir are living at the time
of the death of the testator. (Article 863)
71. If the heir originally instituted is allowed by will to dispose of the property provided that the
same be made in favor of certain individuals, is there fideicommissary substitution?

Answer: No. In the case of Rabadilla vs. CA (GR No. 113725, June 29, 2000), the Court held
that:

Neither is there a fideicommissary substitution here and on this point, petitioner

is correct. In a fideicommissary substitution, the first heir is strictly mandated
to preserve the property and to transmit the same later to the second heir.[15] In
the case under consideration, the instituted heir is in fact allowed under the
Codicil to alienate the property provided the negotiation is with the near
descendants or the sister of the testatrix. Thus, a very important element of a
fideicommissary substitution is lacking; the obligation clearly imposing upon
the first heir the preservation of the property and its transmission to the second
heir. "Without this obligation to preserve clearly imposed by the testator in his
will, there is no fideicommissary substitution

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72. Accretion - is a right by virtue of which, when two or more persons are called to the
same inheritance, devise or legacy, the part assigned to the one who renounces or cannot
receive his share, or who died before the testator, is added or incorporated to that of his
co-heirs, co-devisees, or co-legatees. (Article 1015)

In order that the right of accretion may take place in a testamentary succession, it shall be
necessary:

(1) That two or more persons be called to the same inheritance, or to the same
portion thereof, pro indiviso; and

(2) That one of the persons thus called die before the testator, or renounce the
inheritance, or be incapacitated to receive it. ( Article 1016)

73. Preterition - The omission by a testator of some one of his heirs who is legally entitled to
a portion of the inheritance.

74. Effect of preterition - the preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devises and legacies
shall be valid insofar as they are not inofficious.

75. General Rule in Probate Proceedings: the scope of the court’s inquiry is limited to
questions on the extrinsic validity of the will; the probate court will only determine the
will’s formal validity and due execution.
Exception: When practical considerations demand that the intrinsic validity of the will be
passed upon even before it is probated, the probate court should meet the issue. This is
true when there is preterition and the will does not contain legacies and devices.
X x x x The conduct of separate proceedings to determine the intrinsic validity of its
testamentary provisions would be superfluous. (Morales vs. Olondriz, Feb. 2016)
76. A holographic will that contains only a provision disinheriting one of the compulsory
heirs may still be probated since the failure to mention all the other compulsory heirs
does not amount to preterition and that it contains a testamentary disposition, i.e. the
disinheritance amounts to disposing the share of the disinherited heir in favor of the other
heirs. (Seangio et al. vs. Reyes, et al. Nov. 27, 2006)

77. Preterition vs. Ineffective Disinheritance: Preterition under Article 854 of the New Civil
Code shall annul the institution of heir. This annulment is in toto, unless in the will there
are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", but only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition (III Tolentino, Civil Code of the
Philippines, 1961 Edition, p. 172). In ineffective disinheritance, the nullity is limited to that
portion of the estate of which the disinherited heirs have been illegally deprived.

78. What is the so-called "iron-curtain rule"? The rule that prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate children and relatives of the father or
mother of said illegitimate child. The word “relatives” is to be understood generically and includes
the grandparents of the illegitimate parent.

79. What is right of representation and its legal implications? The right of representation
is a right created by fiction of law where the representative is raised to the place and degree
of the person represented and acquires the rights which the latter would have if he were
living or could have inherited.

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 80. X is the adopted child of A, brother of B. B died survived by his brothers C and D. A
died ahead of B. May X inherit by way of representation? No. The right of
representation cannot be availed by the adopted child. It may be stressed that adoption
creates a relationship between the adopted child and adopting parents only. The rule on
adoption does not establish a relationship between the adopted child and the siblings of the
adopting parents.
81. An obligation is a juridical necessity to give, to do or not to do. What are its sources?

Answer: The sources of an obligation are:

(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts.

82. Alternative obligation: there is more than one object, and the fulfillment of one is
sufficient, determined by the choice of the debtor who generally has the right of
election." The right of election is extinguished when the party who may exercise that option
categorically and unequivocally makes his or her choice known.

The choice of the debtor must also be communicated to the creditor who must receive
notice of it since: The object of this notice is to give the creditor . . . opportunity to express
his consent, or to impugn the election made by the debtor, and only after said notice shall
the election take legal effect when consented by the creditor, or if impugned by the latter,
when declared proper by a competent court.

83. What are the types of quasi-contracts?

Answer: The types of quasi-contracts are:

a. Negotiorum gestio which refers to the unauthorized management and arises

whenever a person voluntarily takes charge of the agency or management of
another’s abandoned business or property without the latter’s authority

b. Solutio indebiti which pertains to undue payment and arises when a person
unduly delivers a thing through mistake to another who has no right to demand
it (must not be through liberality or some other cause)

84. When is there an indivisible obligation? The indivisibility of an obligation is tested

against whether it can be the subject of partial performance.
85. How are obligations extinguished?

Answer: Obligations are extinguished by:

(1) By payment or performance;

(2) By the loss of the thing due;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.

Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment

of a resolutory condition, and prescription, are governed elsewhere in this Code.

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86. Novation is a mode of extinguishing an obligation by changing its objects or principal
obligations, by substituting a new debtor in place of the old one, or by subrogating a third
person to the rights of the creditor. For novation to take place, the following requisites must
concur:
1) There must be a previous valid obligation.
2) The parties concerned must agree to a new contract.
3) The old contract must be extinguished.
4) There must be a valid new contract.

87. Compensation is defined as a mode of extinguishing obligations whereby two persons in

their capacity as principals are mutual debtors and creditors of each other with respect to
equally liquidated and demandable obligations to which no retention or controversy has
been timely commenced and communicated by third parties. Requisites of compensation
are:

Art. 1279. In order that compensation may be proper, it is necessary:

(1) That each one of the obligors be bound principally, and that he be at the same time
a principal creditor of the other;

(2) That both debts consist in a sum of money, or if the things due are consumable,
they be of the same kind, and also of the same quality if the latter has been stated;

(3) That the two debts be due;

(4) That they be liquidated and demandable;

(5) That over neither of them there be any retention or controversy, commenced by
third persons and communicated in due time to the debtor.

88. Legal Compensation: when all the requisites mentioned in Article 1279 are present,
compensation takes effect by operation of law, and extinguishes both debts to the
concurrent amount, even though the creditors and debtors are not aware of the
compensation. Legal compensation operates even against the will of the interested parties
and even without the consent of them.
89. Note that there is still mutuality of parties leading to legal compensation even if the
owner of the bank account debited by the bank is a joint account between debtor and his
wife. (BPI vs. Reyes, CA).
90. Also, note that a “claim” is not the same as “debt” being referred to by law. Hence, there
is no compensation. A debt is a claim which has been formally passed upon by the highest
authority to which it can in law be submitted and has been declared to be a debt. A claim, on the other
hand, is a debt in embryo. It is mere evidence of a debt and must pass thru the process prescribed by
law before it develops into what is properly called a debt. (EGV Realty Development Corp vs. CA et
al.)
91. What is a contract? Its requisites: A contract is a meeting of minds between two
persons whereby one binds himself, with respect to the other, to give something or to
render some service. Requisites:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established. "

92. When is there consent of the contracting parties? Under the law, a contract is
perfected by mere consent, that is, from the moment that there is a meeting of the offer
and the acceptance upon the thing and the cause that constitute the contract. The law
requires that the offer must be certain and the acceptance absolute and unqualified.

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 Acceptance - express and implied; a qualified offer constitutes a counter-
offer. absolute and unqualified when it is identical in all respects with that of the offer
so as to produce consent or a meeting of the minds.
Offer - to be considered certain, must be definite

93. If parties agree to execute a deed of absolute sale upon full payment, there is as yet no
perfected contract of sale. There is only a contract to sell. The SC ruled that a stipulation
in the contract, "[w]here the vendor promises to execute a deed of absolute sale upon
the completion by the vendee of the payment of the price," indicates that the parties
entered into a contract to sell. An agreement to execute a deed of sale upon full payment
of the purchase price" shows that the vendors reserved title to the subject property
until full payment of the purchase price." (DIEGO vs. DIEGO G.R. No. 179965)

94. What is the effect if in a contract to sell, the buyer failed to pay the purchase
price within the agreed period? Since the agreement is a mere contract to sell,
the full payment of the purchase price partakes of a suspensive condition. The non-
fulfillment of the condition prevents the obligation to sell from arising and
ownership is retained by the seller without further remedies by the buyer. (cited in
Diego case.)

95. What is nuisance? Nuisance is any act, omission, establishment, business, condition of property,
or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any
body of water; or
(5) Hinders or impairs the use of property.

96. May a nuisance be summarily abated? Unless a nuisance is a nuisance per se, it may not be
summarily abated. The SC emphasized the need for judicial intervention when the nuisance is not
a nuisance per se.
97. The general welfare clause authorizing the abatement of nuisances without judicial
proceedings applies only to a nuisance per se, or one which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of necessity.
Note: storage of copra in the quonset building is a legitimate business. Hence, not nuisance per se.
98. What is nuisance per se? A nuisance per se is that which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of necessity.
99. A Sangguniang Bayan cannot declare a particular thing as nuisance per se and order
its condemnation. The nuisance can only be so adjudged by judicial determination.
"[Municipal councils] do not have the power to find as a fact that a particular thing is a
nuisance when such thing is not a nuisance per se; nor can they authorize the extra judicial
condemnation and destruction of that as a nuisance which, in its nature, situation or use is
not such.
100. What are the remedies against a public nuisance?
(1) A prosecution under the Penal Code or any local ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
101. Distinguish between public and private nuisance. A public nuisance affects a
community or neighborhood or any considerable number of persons, although the extent

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 of the annoyance, danger or damage upon individuals may be unequal. A private nuisance
is one that is not included in the foregoing definition.

102. Definition of quasi-delict; its equisites; vicarious liability

103. Principle of Res ipsa loquitur: a doctrine that holds a defendant liable where the
thing which caused the injury complained of is shown to be under the latter's management
and the accident is such that, in the ordinary course of things, cannot be expected to happen
if those who have its management or control use proper care.

104. Principle of Last Clear Chance: applies in a suit between the owners and drivers
of the two colliding vehicles. It does not arise where a passenger demands responsibility
from the carrier to enforce its contractual obligations.

105. Even if a vehicle is stationary but it was wrongfully or negligently parked in the
street, it could be a proximate cause for the accident. PHOENIX CONSTRUCTION, INC.
et al vs. IAC et al. [G.R. No. L-65295. March 10, 1987.]

106. The aggrieved party need not wait for a determination by an administrative body
like a Board of Marine Inquiry, that the collision was caused by the fault or negligence of
the other party before he can file an action for damages. The 4 year period of prescription
already starts to run. ERNESTO KRAMER, JR. et al. vs. CA, et al. [G.R. No. 83524.
October 13, 1989.]

107. In "emergency rule", an individual who suddenly finds himself in a situation of

danger and is required to act without much time to consider the best means that may be
adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake
what subsequently and upon reflection may appear to be a better solution, unless the
emergency was brought by his own negligence.

108. Tort interference is an action ex delicto predicated upon an unlawful interference

by one person of the enjoyment by the other of his private property. It pertains to a situation
where a third person induces a party to a contract to renege on or violate his obligation or
undertaking therein. Note of the view that where there is no malice in the interference of a
contract, and the impulse behind one's conduct lies in a proper business interest rather than
in wrongful motives, a party cannot be a malicious interferer.

109. SPOUSES HERNANDEZ et al. vs. [G.R. No. 160286. July 30, 2004.]:
employer-employee relationship exists between owner of passenger jeepney and “driver-
lessee.

110. Classification of land: Section 3, Art. XII of the 1987 Constitution classifies into four,
namely: Agricultural lands, Forest or Timber lands, Mineral Lands and National Park. Note that
only agricultural lands may be subject of dispositiom. Thus, no valid title can be issued
over forest lands, etc.
111. Who are qualified to register land?

Answer: Section 14 of PD 1529 states:

(1) Those who by themselves or through their predecessors-in-interest have been

in open, continuous, exclusive and notorious possession and occupation of
alienable and disposable lands of the public domain under a bona fide claim of
ownership since June 12, 1945, or earlier.

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 (2) Those who have acquired ownership of private lands by prescription under the
provision of existing laws.

(3) Those who have acquired ownership of private lands or abandoned river beds
by right of accession or accretion under the existing laws.

(4) Those who have acquired ownership of land in any other manner provided for
by law.

Note: Applicants for registration of title under Section 14(1) must sufficiently
establish: (1) that the subject land forms part of the disposable and alienable lands
of the public domain; (2) that the applicant and his predecessors-in-interest have
been in open, continuous, exclusive and notorious possession and occupation of
the same; and (3) that it is under a bona fide claim of ownership since June 12,
1945 or earlier.

112. What is a cadastral survey? It is a survey initiated by, and under the control and
supervision of the government, comprising vast area of lands.
113. What is an isolated survey? It is one that is initiated by a private individual who
hires the services of a private surveyor to conduct a survey over a parcel of land he claims
to own.
114. Once a patent is registered and title is issued, the land ceases to be part of public
domain and becomes private property over which the Director of Lands has neither control
nor jurisdiction x x x it becomes indefeasible upon the expiration of one (1) year from the
date of issuance thereof. It is settled in this jurisdiction that the issue of the validity of title
can only be assailed in an action expressly instituted for such purpose.
115. Conflict of Laws: Residence is used to indicate a place of abode, whether
permanent or temporary; domicile denotes a fixed permanent residence to which
when absent, one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is
residence coupled with intention to remain for an unlimited time.

116. Renvoi; application of nationality theory and theory of domicile

117. Characterization or the doctrine of qualification: It is the "process of deciding

whether or not the facts relate to the kind of question specified in a conflicts rule." The
purpose of "characterization" is to enable the forum to select the proper law. SAUDI
ARABIAN AIRLINES vs. CA et al., G.R. No. 122191, October 8, 1998
118. What is the "State of the most significant relationship" rule? It is a rule of
determining the proper forum to resolve a case involving a foreign element and takes into
consideration the following contacts (a) the place where the injury occurred; (b) the place
where the conduct causing the injury occurred; (c) the domicile, residence, nationality,
place of incorporation and place of business of the parties, and (d) the place where the
relationship, if any, between the parties is centered. SAUDI ARABIAN AIRLINES vs.
CA et al., G.R. No. 122191, October 8, 1998
119. Phases involved in judicial resolution of conflicts-of-laws problems:
jurisdiction, choice of law, and recognition and enforcement of judgments. Hasegawa v.
Kitamura, G.R. No. 149177, 23 November 2007
120. Doctrine of forum non conveniens: A Philippine court in a conflict-of-laws case
may assume jurisdiction if it chooses to do so, provided, that the following requisites are
met: (1) that the Philippine Court is one to which the parties may conveniently resort to;
(2) that the Philippine Court is in a position to make an intelligent decision as to the law
and the facts; and (3) that the Philippine Court has or is likely to have power to enforce its
decision.

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