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FAR EASTERN UNIVERSITY INSTITUTE OF LAW CIVIL LAW LAST MINUTE TIPS | BAR EXAMINATIONS 2017

I. GENERAL PRINCIPLES Newspaper of General Circulation Requisites: 1. Published for the dissemination of local news and general information 2. Has a bona fide subscription list of paying subscribers; 3. Published at regular intervals; and 4. In the Philippines (Marcelo vs. PCIB, GR No. 182735, December 4, 2009). Non-retroactivity of laws General Rule: Laws have no retroactive effect. Exceptions [T-PRINCES] 1. Tax laws; 2. Penal laws favorable to the accused; 3. Remedial or Procedural laws; 4. Interpretative laws; 5. It creates New substantive rights; 6. Curative laws; 7. Emergency laws; 8. Statute provides for retroactivity. Exceptions to the exception: 1. Ex post facto laws; or 2. Law that impair the obligation of contracts. II. CONFLICT OF LAWS Forum non conveniens Under this doctrine, the court, in conflict of law cases, may refuse impositions on its jurisdiction where it is not the most convenient or available forum and the parties are not precluded from seeking remedies elsewhere. It entails a recognition not only that other tribunals are better suited to rule on and resolve a controversy, but also, that these tribunals are better positioned to enforce judgments and, ultimately, to dispense justice. (Saudi Arabian Airlines vs. Rebesencio, GR No. 198587, January 14, 2017) Renvoi Doctrine A procedure whereby a legal matter is referred by the conflict of laws rules of the forum to a foreign state, the conflict of law rules of which, in turn refers the matter back to the law of the forum (remission) or a third state (transmission). Double Renvoi Theory It occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. III. FAMILY CODE

Essential requisites of marriage 1. Legal capacity of the contracting parties a. Parties must be a man and a woman b. No legal impediment to marry c. Must be at least 18 years old. 2. Consent freely given in the presence of a solemnizing officer. Formal requisites of marriage 1. Authority of the solemnizing officer 2. Valid Marriage License 3. Marriage ceremony Note: Absence of any essential and formal requisites will make the marriage VOID. However, mere irregularity in the formal requisites will not invalidate the marriage. In declaring a marriage void on the ground of psychological incapacity, is there a need to have an actual medical examination of the spouse concerned? No. If the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical examination of the person concerned need not be resorted to. (Kalaw vs. Fernandez, GR No. 166357, January 14, 2015) – BERSAMIN CASE Difference between property regime under Article 147 and Article 148. Article 147 Article 148 Applicability Requisites In cases of 1. Parties must be cohabitation not falling capacitated to under Art. 147. marry each other; Parties do not have 2. Live exclusively with each other as the capacity to marry husband and wife; due to some legal 3. Without the impediments. benefit of marriage or under void marriage. Salaries and wages Owned in equal Separately owned by shares. the parties. If any of them is married, his/her salary is the property of the CPG of the legitimate marriage. Property acquired by either exclusively by own funds Belongs to such party Belongs to such party. subject to proof of

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acquisition by exclusive funds. Property acquired by both through their work/ industry Governed by rules on Owned by them in co-ownership. common in proportion to respective contributions. Property acquired while living together Presumed to be No presumption of obtained by their joint joint acquisition. efforts, work, or industry and shall be When there is owned by them in evidence of joint equal shares. acquisition but none as to the extent of actual Efforts in care and contribution, there is a maintenance of family presumption of equal and household sharing. considered contribution in acquisition. Forfeiture When only one of the If one of the parties is parties to a void validly married to marriage is in good another, his or her faith, share of party in share in the cobad faith in the co- ownership shall accrue ownership shall be to the CP or CPG forfeited. existing in such valid 1. In favor of their marriage. common children; 2. In case of default If one party, who acted or waiver by any or in bad faith, is not all common married to children or validly another, his/her estate descendants, each vacant share shall shall be forfeited in the belong to same manner provided respective for in Art. 147. surviving descendants; The above rules apply 3. In their absence, to the innocent even if both parties are in bad faith. party.

Note: What will be forfeited is ALL the shares of the bad faith party and not merely the share in the net profit. Doctrine of Triennial Cohabitation Under this rule, if the wife remains virgin for at least 3 years from the time the spouses started cohabiting, the husband must show that he was not impotent during the said period and the burden will be upon him to overcome the presumption of impotence.

Foreign Divorce General Rule: Foreign divorce is not valid in the Philippines. Exception: Between a Filipino and an alien provided the following requisites are present: 1. there is a valid marriage celebrated between a Filipino citizen and a foreigner; and 2. a valid divorce according to the national law of the foreigner is obtained abroad by alien spouse capacitating him/her to remarry (Art. 26[2], FC) The 2nd paragraph of Article 26 of the Family Code includes 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 Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. (Republic vs. Orbecido III, GR No. 154380, October 5, 2005). Although Article 26 only refers to divorce, the principle therein applies in a marriage between a Filipino and an alien who obtains a foreign judgment nullifying the marriage on the ground of bigamy. The principle in the second paragraph of Article 26 applies because the foreign spouse, after the foreign judgment nullifying the marriage, is capacitated to remarry under the laws of his or her country. If the foreign judgment is not recognized in the Philippines, the Filipino spouse will be discriminated – the foreign spouse can remarry while the Filipino spouse cannot remarry. (Fujiki vs. Marinay, GR No. 1196049, June 26, 2013) Divorce between Filipinos is void and ineffectual under the nationality rule adopted by Philippine law. Hence, any settlement of property between the parties of the first marriage involving Filipinos submitted as an incident of a divorce obtained in a foreign country lacks competent judicial approval, and cannot be enforceable against the assets of the husband who contracts a subsequent marriage. (Lavadia vs. Heirs of Juan Luces Luna, GR No. 171914, July 23, 2014) – BERSAMIN CASE. In a voluntary judicial separation of property, is there a need to deliver the presumptive legitime? YES. Article 102 of the Family Code applies also to the voluntary judicial separation of property. Under Article 102(5) of the Family Code, the

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presumptive legitimes of the common children shall be delivered upon partition. (Noveras vs. Noveras, GR No. 188289, August 20, 2004). Illegitimate Children General Rule: Those conceived and born outside a valid marriage are illegitimate Exceptions: 1. A child born before judicial decree declaring a marriage void due to psychological incapacity under Art. 36 of the Family Code has become final and executory; 2. A child born of a second marriage that was contracted after the judgment annulling or declaring null and void the first marriage but the partition of property is not yet recorded in Registry of Property. When can an illegitimate child use the surname of his father? 1. If their filiation has been expressly recognized by the father through the record of birth appearing in the civil register; or 2. When an admission in a public document or private handwritten instrument is made by the father. IV. ADOPTION Adoption of the spouses General Rule: Husband and wife shall JOINTLY adopt Exceptions: 1. One spouse seeks to adopt the child of the other; 2. One spouse seeks to adopt his/her own illegitimate child, provided that the other spouse consented; or 3. Spouses are legally separated from each other. WRITTEN Consent necessary for adoption 1. Adoptee – if 10 years or older; 2. Adoptee’s biological parents, if known, or legal guardian, or the other proper government instrumentality which has legal custody of the child; 3. Adopter’s legitimate and adopted children who are 10 years or over and, if any, illegitimate children living with them; and 4. Adopter spouse. The law on adoption requires that the adoption by the father of a child born out of wedlock obtain not only the consent of his wife but also the consent of his legitimate children. In the absence of any decree of legal separation or annulment, the spouse remained legally married

despite their de facto separation. The husband to be eligible to adopt his illegitimate children, the wife must first signify her consent to the adoption. The law also requires the consent of the adopter’s children if they are 10 years old or older. (Castro vs. Jose Maria and Ana Maria Gregorio, GR No. 188801, October 15, 2014). V. LAND, TITLE AND DEEDS Mirror Doctrine All persons dealing with a property covered by Torrens certificate of title are not required to go beyond what appears on the face of the title. Where there is nothing on the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is not require to explore further than what the Torrens title upon its face indicates in quest for any hidden defect or inchoate right that may defeat his right thereto. Exceptions to the application of the mirror doctrine 1. Purchaser or mortgagee is a Bank/financing institution 2. Owner still holds a valid and existing certificate of title covering the same property because the law protects the lawful holder of a registered title over the transfer of a vendor bereft of any transmissible right; 3. Purchaser in bad faith 4. Purchases land with a certificate of title containing a notice of lis pendens 5. Sufficiently strong indications to impel closer to inquiry into the location boundaries and condition of the lot 6. Purchaser had full knowledge of flaws and defects in the title 7. Person buys land and not from the registered owner but from whose rights to the land had been merely annotated on the certificate of title. Under the Torrens system of land registration, the registered owner of realty cannot be deprived of her property through fraud, unless a transferee acquires the property as an innocent purchaser for value. A transferee who acquires the property covered by a reissued owner’s copy of the certificate of title without taking the ordinary precautions of honest persons in doing business and examining the records of the proper Registry of Deeds, or who fails to pay the full market value of the property is not considered an innocent purchaser for value. (Cusi vs. Domingo, GR No. 195825, February 17, 2013) – BERSAMIN CASE The Regalian doctrine dictates that all lands of the public domain belong to the State. The

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applicant for land registration has the burden of overcoming the presumption of State ownership by establishing through incontrovertible evidence that the land sought to be registered is alienable or disposable based on a positive act of the government. (Republic vs. De Joson, GR No. 163767, March 10, 2014) – BERSAMIN CASE VI. PROPERTY Test to determine if property is movable 1. Test of exclusion – if the property is excluded from the enumeration under Art. 415 of the Civil Code, the property is considered movable or personal. 2. Test by description – A property is considered personal if, by its nature, it can be moved from place to place and can be removed from the real property without impairment of the real property. Note: The Test of Exclusion is the SUPERIOR test. Rules on acquisition of lands of public domain General Rule: All lands of public domain belong to the State. Lands that are not clearly under private ownership are also presumed to belong to the State and, therefore, may not be alienated or disposed. Exceptions: 1. Agricultural lands of the public domain are rendered alienable and disposable through any of the exclusive modes enumerated under Section 11 of the Public Land Act. If the mode is judicial confirmation of imperfect title under Section 48(b) of the Public Land Act, the agricultural land subject of the application needs only to be classified as alienable and disposable as of the time of the application, provided the applicant’s possession and occupation of the land dated back to June 12, 1945, or earlier. 2. Lands of the public domain subsequently classified or declared as no longer intended for public use or for the development of national wealth are removed from the sphere of public dominion and are considered converted into patrimonial lands or lands of private ownership that may be alienated or disposed through any of the modes of acquiring ownership under the Civil Code. (Heirs of Malabanan vs.

Republic, GR No. 179987, September 3, 2013) – BERSAMIN CASE Self-help doctrine 1. Actual or threatened physical invasion or usurpation 2. Reasonable force is exercised 3. Force is exercised by the owner or lawful possessor 4. No delay in the exercise Alluvion vs. Avulsion Alluvion Gradual and imperceptible Source of the soil is not identifiable New area belongs to the owner of the property to which it is attached Sediments attachment

are

Avulsion Sudden and abrupt process Source of the portion of land is identifiable and verifiable Ownership of the portion attached is retained by the owner from whose property it is attached Known portion is detached and the same is thereafter attached to another parcel of land.

Quieting of title An action that may be brought to remove or prevent a cloud from being cast upon the title to real property or any interest therein. Requisites of quieting of title 1. Plaintiff must have legal or equitable title 2. A cloud in such title exists 3. Such cloud must be due to some instrument, record, claim, encumbrance or proceeding which is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and 4. Plaintiff must return to the defendant all benefits he may have received from the latter. Limitations on the use of co-owned property 1. Must be according to the purpose for which it was intended 2. Use must not prejudice the interest of the co-ownership 3. Other co-owners must not be prevented from using it according to their own rights. How acts of co-owners should be decided? 1. Preservation of the thing – one co-owner may decide to perform with prior notice

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2. Management or administration – Decided by co-owners representing the majority of interest 3. Alteration or acts of ownership – Unanimous decision is required. Partition of co-owned property General Rule: Demandable as a matter of right Exceptions: 1. A stipulation against partition not exceeding 10 years exists; 2. Condition of indivision is imposed by the donor or testator – not exceeding 20 years 3. Legal nature of the co-owned property prevents partition; 4. Partition would render the thing unserviceable; 5. Partition is prohibited by law 6. Another co-owner has possessed the property as exclusive owner for a period sufficient to acquire it by prescription. Condominium Corporation A condominium corporation shall not, during its existence, sell, exchange, lease or otherwise dispose of the common areas owned or held by it in the condominium project unless authorized by the affirmative vote of all the stockholders or members. (RA No. 4726, Sec. 16) The management body, unless otherwise provided for by the declaration of restrictions, may acquire and hold, for the benefit of the condominium owners, tangible and intangible personal property and may dispose of the same by sale or otherwise; the beneficial interest in such property shall be owned by the condominium owners in the same proportion as their respective interests in the common areas. A transfer of a condominium shall transfer to the transferee ownership of the transferor’s beneficial interest in such personal property. (RA No. 4726, Sec. 22). Order of Preference in case of Conflict of Possession 1. Present possessor shall be preferred 2. If there are two possessors, the one longer in possession 3. If dates of possession are the same, the one with a title 4. If all conditions are equal, the fact of possession shall be judicially determined. Usufruct The right of a person (the usufructuary) to enjoy the property of another (the owner) with the obligation of returning it at the designated time and preserving its form and substance, unless

the title constituting it or the law provides otherwise. (Art. 562, NCC) Usufruct distinguished from Lease Usufruct Lease Always a real right May be a real right or personal right Owner gives the Lessor need not be usufruct the owner Usufruct has the right Lessee is generally to use and right to all entitled to use of the the fruits and benefits thing only Usufruct is responsible As a general rule, for ordinary repairs lessee is not under the and taxes on the fruits obligation to undertake repairs or pay taxes Usufruct is constituted Lease is by acts inter by will, by acts inter vivos – generally by vivos and by last will contracts and testament

VII. SUCCESSION Requirements of a valid notarial will (Art. 805, NCC) 1. Subscribed by the testator or his agent in his presence and by his direction at the end thereof, in the presence of the witnesses; 2. Attested and subscribed by at least 3 credible witnesses in the presence of the testator and of one another; 3. The testator, or his agent, must sign every page, except the last, on the left margin in the presence of the witnesses; 4. The witnesses must sign every page, except the last, on the left margin in the presence of the testator and of one another; 5. All pages numbered correlatively in letters on the upper part of the page; 6. Attestation clause, stating: a. The number of pages of the will; b. The fact that the testator or his agent under his express direction signed the will and every page thereof, in the presence of the witnesses; c. The fact that the witnesses witnessed and signed the will and every page thereof in the presence of the testator and one another. 7. Acknowledgement before notary public. Attestation clause It is the act of the witnesses in witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with the requirements prescribed by law.

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The attestation clause is the affair of the witnesses, therefore, it need not be signed by the testator (Fernandez vs. Vergel de Dios, GR No. L-21151, February 25, 1924). Doctrine of dependent relative revocation The revocation of the first will depends on the validity of the subsequent will. It applies only if it appears that the testator intended his act of revocation to be conditioned on the making of a new will or on its validity, or efficacy. Preterition It is the 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. (Art. 854, NCC) It has been defined as the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. (Heirs of Policronio Ureta v. Heirs of Liberato Ureta, GR No. 165748, September 14, 2011) Preterition vs. Imperfect disinheritance Imperfect Preterition Disinheritance Person omitted must Person disinherited be a compulsory heir may be any in the direct line compulsory heir. Attempt to deprive the Attempt to deprive the heir is implied. heir is always express. May be intentional or Always intentional. unintentional Effect is total Effect is partial annulment of the annulment of the institution of heir institution of heirs up to the extent of the prejudice to the disinherited heir. Effects of a valid disinheritance It is not just deprivation of the legitime, but TOTAL EXCLUSION of the disinherited heir from inheritance. Thus, the disinherited heir forfeits: 1. His legitime; 2. His intestate portion, if any; and 3. Any testamentary disposition made in a prior will of testator.

GROSS ESTATE (Value of the property at the time of death) Less: LIABILITIES (Debts and Obligations existing at the time of death) GROSS ESTATE BEFORE COLLATION Add: DONATION (Collation) NET ESTATE (Basis for Computation of Legitime) Rule on surviving spouse compulsory heir (Art. 900, NCC) General Rule: ½ of the estate.

as

sole

Exceptions: 1/3 of the estate, if the following circumstances are present: 1. Marriage was in articulo mortis; 2. Testator died within 3 months from the time of marriage; 3. Parties did not cohabit for more than 5 years; and 4. Spouse who died was the party in articulo mortis at the time of the marriage. Exception to the exception: ½ of the estate if they have been living as husband and wife for more than 5 years before the marriage. Reserva troncal It is the reservation by virtue of which an ascendant who inherits from his descendant any property which the latter may have 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 3rd degree and who belong to the line from which said property came (Art. 891, NCC). Requisites of reserva troncal 1. Property was acquired by operation of law by an ascendant from his descendant upon the death of the latter; 2. Property was previously acquired through gratuitous title by the descendant from another ascendant or from a brother or sister; 3. Descendant died without any legitimate issue in the direct descending line who could inherit from him; and 4. There are relatives within the 3rd degree belonging to the line from which said property came. Successional Barrier (Iron Curtain Rule) It is a barrier separating or dividing the members of the legitimate family from those of the illegitimate family.

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Under this rule, an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. (Art. 992, NCC)

3. There is a stipulation that the obligor will not be excused even if there is a fortuitous event 4. Assumption of risk is required by the nature of obligation 5. Thing to be delivered is generic 6. Obligor is also at fault

Right of Representation: Testamentary Succession vs. Intestate Succession Testamentary Intestate Succession Succession Available in case of Available only in case disinheritance, of incapacity and incapacity, and predecease. predecease. Covers only the Covers the full legitime intestate shares Available only to the Extends not only to descendants descendants, but to the nephews and nieces, provided they should survive along with their uncle or aunt.

Term/Period and Condition Distinguished Term/Period Condition Interval of time which is Fact or event which is future and certain future but uncertain Must necessarily come, May or may not although it may not be happen known when Exerts an influence Exerts an influence upon the time of upon the very demandability or existence of the extinguishment of an obligation itself. obligation No retroactive effect Has retroactive effect unless there is an agreement to the contrary When it is left When it is left exclusively to the will of exclusively to the will the debtor, the of the debtor, the very existence of the existence of the obligation is not obligation is affected. affected, empowers the court to fix the duration of the obligation Must be possible, Must be possible, otherwise the otherwise the obligation is void obligation is void

Rules on imputation of donation inter vivos (Art. 1062, NCC) 1. Donation is made to compulsory heirs General Rule: It should be imputed to the heir’s legitime (considered as an advance on the legitime) Exceptions: a. Donor expressly provided otherwise; and b. Donee repudiates his inheritance. Note: In case either exception applies, the donation will have to be imputed to the free portion. 2. Donation is made to strangers – imputed to free portion.

VIII. OBLIGATIONS AND CONTRACTS Fortuitous Events General Rule: The obligor is not liable for any loss due to fortuitous event which occurred before the delivery. Exceptions: 1. Obligor delays 2. Obligor promised the same thing to two or more persons who do not have the same interest

Dacion en pago vs. payment by cession Dacion En Pago Payment By Cession Ownership of the thing Creditors do not delivered is transferred acquire ownership but to the creditor must sell the thing and apply the proceeds to the debts Debt is extinguished Debts are extinguished only up to the extent covered by the proceeds of the sale Only one creditor Two or more creditors Insolvency of the Insolvency of the debtor is NOT required debtor is required Expromission vs. Delegacion Expromission Delegacion Initiative for change Initiative comes from does not come from the debtor the debtor Consent of the debtor Consent of the debtor, is not present and not creditor, and third

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even necessary Debtor is released Insolvency of the new debtor before or after the novation does not revive the obligation

person are present Debtor is not released Insolvency of new debtor revives the obligation of the debtor if: 1. Insolvency is existing at the time of novation 2. Of public knowledge or known to the debtor

Alternative vs. Facultative Obligations Alternative Facultative Effect of Fortuitous Loss Only the impossibility Impossibility of the loss of all the prestations principal prestation is due without the fault of sufficient to extinguish the debtor the obligation, even if extinguished the the substitute is obligation possible. Choice Right to choose may Only the buyer can be given to the choose the substitute creditor Nature Various prestations all Only the principal of which constitute prestation constitutes parts of the obligation the obligation, the accessory being only a means to facilitate payment Effect of the Nullity of Prestations Nullity of one of the Nullity of the principal prestation does not prestation invalidates invalidate the the obligation. obligation which, is still in force with respect to those which have no vice. Joint and Solidary Obligations Joint Obligations (Obligacion Mancomunada) The whole obligation is to be paid or fulfilled proportionately by different debtors or demanded proportionately by different creditors. Solidarity Obligations (Obligacion Solidaria) Each one of the debtors is bound to render, and/or each one of the creditors has a right to demand entire compliance with the prestation. Reformation of Instruments Requisites: 1. Meeting of the minds of the parties to the contract;

2. Instrument does not express the true intention of the parties; and 3. Failure of the instrument to express the true intention of the parties due to mistake, fraud, inequitable conduct or accident. IX. SALE Contract of Sale vs. Contract to Sell Contract of Sale Contract to Sell Title passes to the Ownership is reserved buyer upon delivery of in the seller and is not the thing sold pass until full payment of the purchase price Non-payment of the Full payment is a price is a negative positive suspensive resolutory condition condition, the failure of and the remedy of the which is not a breach – seller is to exact casual or serious but fulfillment or to rescind simply prevents the the contract obligation of the vendor to convey the title from having binding force Vendor loses and Title remains in the cannot recover vendor if the vendee ownership of the thing does not comply with sold and delivered the condition until the contract of precedent of making sale is resolved and payment at the time set asside. specified in the contract. Sale vs. Contract of Piece of Work Sale Contract of Piece of Work Risk of Loss Borne by the buyer Borne by the worker or contractor Object of the Contract Sale of manufactured Service dominate the item contract Applicability of Statute of Fraud Governed by the Not governed by the Statute of Fraud Statute of Fraud Existence of Things The thing transferred The thing transferred is is one which would not in existence and have existed and would never have would have been the existed but for the subject of sale order of the buyer Rules in determining if the contract is one of Sale or a Piece of Work If ordered or If manufactured manufactured in the especially for the ordinary course of customer and upon the business special order, and not for the general market

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Sale vs. Barter Sale

Barter

Nature Thing is given in Thing is given in exchange of a price exchange of another certain in money or its equivalent Applicable Law Law on Sales Law on Barter or exchange of another thing Applicability of Statute of Fraud The rules on Statute of The rules on Statute of Frauds, which apply to Frauds, which apply to the sale of real the sale of real and property and personal personal property property bought at bought at P500 or P500 or more apply more, do not aply. If the consideration is partly in money and partly in another thing 1. Transaction is characterized by the manifest intention of the parties. 2. If there is no manifest intention – a. Barter if the value of the thing is more valuable than money b. Sale if the value of the thing is equal or less than the amount of money. Earnest money vs. Option money Earnest Money Option Money Part of the purchase Given as a distinct price consideration for an option contract When given, the buyer The would-be buyer is is bound to pay the not required to buy balance Given when there is Sale is not yet already a perfected perfected sale Title passes to the Ownership is reserved buyer upon delivery of to the seller and is not the thing sold pass until full payment In case of non- In case of nonpayment, an action for payment, there can be specific performance no action for specific or for rescission can performance. be filed Requisites of Double Sale 1. Two or more transactions must constitute valid sales 2. Must pertain exactly to the same object or subject matter 3. Must be bought from the same or immediate seller

4. Two or more buyers who are at odds over the rightful ownership of the subject matter must present conflicting interest. Rules of Preference in Double Sale 1. Movable properties – first possessor in good faith is preferred 2. Immovable properties – the order of preference is as follows: a. The buyer who first registered in good faith b. First possessor in good faith c. Oldest title. Right of First Refusal An agreement which gives the first priority to the prospective buyer to purchase the property should the owner decide to sell the same. The owner should offer the property first to such person. Remedies of the Unpaid Seller 1. Before delivery – no obligation to deliver the thing sold, if the buyer has not paid the price. 2. After delivery a. Lien on the goods or right to retain them for the price b. Right of Stoppage in transit c. Right of Resale d. Right to Rescind the sale RECTO LAW Remedies of the seller in a contract of sale of personal property on installment basis 1. Exact fulfillment of the obligation – in case the buyer failed to pay 2. Cancel the sale – if the buyer failed to pay two or more installments; or 3. Foreclose the chattel mortgage MACEDA LAW Applies to contracts of sale of real estate on installment payments, including residential condominium apartments. It does not apply to: 1. Sale of industrial lots 2. Sale of commercial buildings; 3. Sales to Agricultural Tenants; and 4. Straight Sale or Sale not on installment basis. Conventional Redemption By express agreement, the seller is given the right to repurchase the thing sold. Period to exercise conventional redemption The right of redemption should be exercised within the following period: 1. Within the period agreed upon which should not exceed 10 years from the date of the contract

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2. In the absence of agreement, the seller should redeem within 4 years from the date of the contract. Legal Redemption The right to be subrogated, upon the same terms and conditions stipulated in the contract, in the place of one who acquires the thing by purchase or dation in payment, or by any other transaction. Conventional vs. Legal Redemption Conventional Legal Redemption Redemption As to Constitution By express reservation Does not have to be in a contract of sale at expressly reserved time of perfection and covers sales and other onerous transfers of title. As to who may exercise the right Seller Third party to the sale As to the Effect of its Exercise Extinguishes the Actually constitutes a underlying contract of new sale in substitute sale as though there of the original sale. was never any contract at all Pacto de Retro vs. Mortgage Pacto de Retro Mortgage Nature Ownership is Ownership is not immediately transferred but the transferred subject to property is merely resolutory condition of subject to a charge or repurchase by the lien as security vendee Interest Failure of seller to Mortgagor does not repurchase loses his lose his interest if he interest in the property, fails to pay his debt at title to which vests maturity but subjects upon the buyer by the property to operation of law foreclosure and public sale Foreclosure and Redemption No obligation upon the Duty of the mortgage purchaser to foreclose to foreclose if he nor the vendor to wishes to secure a redeem after the perfect title thereto, maturity of the debt and mortgagor has right to redeem after maturity of the debt and before the foreclosure. Pre-emption vs. Redemption

Pre-emption Redemption As to the Time of Exercise of Right Before sale After sale Remedy of Rescission No rescission because There can be the sale does not yet rescission of the exist original sale Against whom the action is directed Prospective seller Buyer X. PARTNERSHIP What acts need unanimous approval of all partners? 1. Assign the partnership property in trust for creditors or on the assignee’s promise to pay the debts of the partnership 2. Dispose of the goodwill of the business 3. Do any other act which would make it impossible to carry on the ordinary business of a partnership 4. Confess a judgment 5. Enter into a compromise concerning a partnership claim or liability 6. Submit a partnership claim or liability to arbitration and 7. Renounce a claim of the partnership. XI. CREDIT TRANSACTION Commodatum vs. Mutuum Commodatum Mutuum Object General Rule: Non- Consumable/Fungible consumable/Nonfungible. Exception: If the purpose of the contract is not the consumption of the object Cause Essentially gratuitous Generally gratuitous although it may also be onerous for there may be stipulation of interest Purpose Use or temporary Consumption possession Subject Matter Any property Personal property Ownership of the thing Retained by bailor Passes to the debtor Return of the thing Exact thing loaned Equal amount of the same kind and quality Risk of Loss Bailor Debtor or bailee

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Time of Return In case of urgent need Upon expiration of the and commission of any term only acts of ingratitude, even before the expiration of the term Return of the thing loaned General Rule: The bailor cannot demand return of the thing loaned until after expiration of the period stipulated, or after accomplishment of the use for which commodatum has been constituted.

the the the the

Exceptions: 1. In case of urgent need 2. Precarium 3. Bailor commits any of the act of ingratitude. Requisites for the payment of interest 1. Payment of interest is agreed upon 2. Stipulation to pay interest must be in writing 3. Rate must not be against the law or against morals and public policy. Compounding interest General Rule: Interest due and unpaid shall not earn interest. Exceptions: 1. Judicial demand 2. Compounding interest is agreed upon. Guaranty vs. Suretyship Guaranty Suretyship Liability depends upon Surety assumes an independent liability as regular party agreement to pay the to the undertaking obligation if primary debtor fails to do so Collateral undertaking Original promissor Secondarily liable Primarily liable Guarantor binds Surety undertakes to himself to pay if the pay if the principal principal cannot pay does not pay Insurer of solvency of Insurer of debt debtor Guarantor can avail Surety cannot avail the the benefit of same benefits excussion and division in case the creditor proceeds against him Not bound to know Ordinarily, held to every default of his know every default of principal his principal Often discharged by Will not be discharged the mere indulgence of either by the mere the creditor or indulgence of the

principal, and is usually not liable unless notified of the default of the principal.

creditor or principal or by want of notice of the default of the latter, no matter how much he may be injured thereby.

Benefit of excussion or exhaustion The guarantor cannot be compelled to pay the creditor unless: 1. creditor has exhausted all the property of the debtor; 2. creditor has resorted to all the legal remedies against the debtor. Benefit of excussion is not available 1. If the guarantor has expressly renounced it 2. If he has bound himself solidarily with the debtor 3. In case of insolvency of the debtor 4. when he has absconded, or cannot be sued within the Philippines unless he has left a manager or representative 5. If it may be presumed that an execution on the property of the principal debtor would not result in the satisfaction of the obligation 6. If the guarantor did not set it up against the creditor upon the latter’s demand for payment from him; and 7. If the guarantor did not point out to the creditor available property of the debtor within Philippine territory, sufficient to cover the amount of the debt. Benefit of division The obligation is divided among the coguarantors if the following are present: 1. there are several guarantors of only one debtor 2. they are guarantors of the same debt. Pactum Commissorium An agreement whereby the creditor automatically becomes the owner of the things given by way of pledge or mortgage, or dispose of them in case of non-payment. Requisites of pactum commissorium 1. The property was pledged or mortgaged by way of security for the payment of the principal obligation 2. There is a stipulation for an automatic appropriation by the creditor of the thing pledged or mortgaged in the event of nonpayment of the principal obligation within the stipulated period. A stipulation which authorizes a transfer of ownership of mortgaged property upon the default of the debtor on his obligation is considered a pactum commissorium. (Spouses

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Pen vs. Spouses Julian, GR No. 160408, January 11, 2016) – BERSAMIN CASE. Judicial Foreclosure vs. Extrajudicial Foreclosure Judicial Extrajudicial Foreclosure Foreclosure Governing Rule Rule 68 of the ROC Act No. 3135, as amended Court Intervention There is a court No court intervention intervention Right of Appeal Appealable Not appealable, immediately executory Cutting Off of Rights Order of the court cut Foreclosure does not offs all rights of the cut off the rights of all parties impleaded parties involved Right of Redemption There is equity There is a right of redemption, except on redemption. banks which provides for a right of redemption Period of Redemption Starts from the finality Starts from the date of of the judgment until registration of the order of confirmation certificate of sale Necessity of a SPA Not required Required

XII. TORTS Requisites of Res Ipsa Loquitur 1. the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence 2. it is caused by an instrumentality within the exclusive control of the defendant 3. the possibility of contributing conduct which would make the plaintiff responsible is eliminated.

Even if the plaintiff was guilty of antecedent negligence, the defendant is still liable because he had the last clear chance of avoiding the injury. Registered-owner rule The registered owner of the motor vehicle involved in a vehicular accident could be held liable for the consequences. A provision in the agreement to sell that the owner will be free from all liability arising from the use and operation of the vehicle sold to the buyer did not bind the third person who were expected to simply rely on the data contained in the registration certificate of the erring bus. (Metro Manila Transit Corporation vs. Cuevas, GR No. 167797, June 15, 2015) – BERSAMIN CASE. XIII. TRUST Resulting trust vs. Constructive Trust Resulting Trust Constructive Trust Intention to Create Trust Presumed or implied It is created by law from the nature irrespective of or even of the transaction contrary to the intention of the parties to promote justice, frustrate fraud and to prevent unjust enrichment Prescriptive Period 10 year prescriptive 10 year prescriptive period shall be period shall be counted from the time counted from the time repudiation is made that the constructive known to beneficiary trust arises Examples Illustrated in Articles Illustrated in Articles 1448, 1449, 1451, 1450, 1454, 1455, and 1452, and 1453. 1456.

Egg-Skull or Thin Skull Rule The tortfeasor is required to take the victim as he finds him. A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be held liable for damages. He is liable even though the negligent act caused an injury that is greater than what is usually experienced by a normal person because of a prior condition of the plaintiff. Doctrine of Last Clear Chance

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Comparative Table of Defective Contracts Void Voidable Lack of essential elements or illegality

As a general rule, do not produce any legal effect Action for the declaration of nullity does not prescribe

Not cured prescription

by

Cannot be ratified Contracting party and a third person whose interest is directly affected Directly or collaterally

Vices of consent

Rescissible As to Defect Injury or damage either to one of the parties or to a third person

As to Effect Valid and enforceable Valid and enforceable until annulled by a until annulled by a competent court competent court As to Prescription of action or defense Action for annulment or Action for rescission defense of annulability may prescribe may prescribe

As to Effect of Prescription Cured by prescription Cured by prescription

As to Susceptibility of Ratification Can be ratified Need not be ratified As to Who May Assail Contracts Contracting party only Contracting party and a third person who is prejudiced or damaged by the contract As to How Contracts May be Assailed Directly or collaterally Directly only

Unenforceable Lack of form, authority, or capacity of both parties not cured by prescription Cannot be enforced by a proper action in court Corresponding action for recovery, if there was total or partial performance of unenforceable contract under No. 1 or 3 of Art. 1403 may prescribe Not cured by prescription except in case of Art. 1403, Nos. 1 or 3 Can be ratified Contracting party

Directly or collaterally

Domestic Adoption vs. Inter-Country Adoption Domestic Adoption Inter-Country Adoption Kind of Proceedings Judicial Extra-judicial Governing law RA No. 8225 RA No. 8043 Definition of a child Person below 18yo (Sec. 3[a]) Person below 15younless sooner emancipated by law (Sec. 3[b]) Who may adopt? 1. Any Filipino citizen; Alien or Filipino citizen permanently residing 2. Any alien possessing the same qualifications abroad (Sec. 9) for Filipino nationals; 3. The guardian with respect to the ward (Sec. 7) Qualifications Filipino citizen 1. At least 27yoand at least 16 years older than the child to be adopted, at the time of 1. Legal age, in possession of full civil capacity application unless the adopter is the parent by and legal rights; nature of the child to be adopted or the spouse 2. Of good moral character, has not been of such parent; convicted of any crime involving moral 2. If married, his/her spouse must jointly file for turpitude; the adoption; 3. Emotionally and psychologically capable of REMEMBER WHY YOU STARTED. REMEMBER WHO YOU ARE | 13

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caring for children; 4. At least 16 years older than the adoptee, except if the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent (Sec. 7[a])

3. Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws, and has undergone the appropriate counseling from an accredited counselor in his/her country; 4. Has not been convicted of a crime involving moral turpitude; Alien 5. Is eligible to adopt under his/her national law; 1. Same as qualifications of Filipino citizens; 6. Is in a position to provide the proper care and 2. His/her country has diplomatic relations with support and to give the necessary moral values the Philippines and example to all his children, including the 3. He/she has been living in the Philippines for at child to be adopted; least 3 continuous years prior to filing of application and maintains such residence until 7. Agrees to uphold the basic rights of the child as embodied under Philippine laws, the UN adoption decree is entered; Convention on the Rights of the Child, and to 4. He/she has been certified by his/her abide by the rules and regulations issued to diplomatic/consular office or any appropriate implement the provisions of this Act; government agency that he/she has legal 8. Comes from a country with whom the capacity to adopt in his/her country; Philippines has diplomatic relations and whose 5. His/her government allows the adoptee to enter government maintains a similarly authorized the country as his/her adopted child. and accredited agency and that adoption is allowed under his/her national laws; and 9. Possesses all the qualifications and none of the disqualifications provided herein and in other applicable Philippine laws (Sec. 9) Who may be adopted? 1. Any person below 18 years of age who has Only a legally free child may be the subject of interbeen administratively or judicially declared country adoption (Sec. 8) available for adoption; 2. The legitimate son/daughter of one by the other spouse; 3. An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy; 4. A person of legal age if, prior to adoption, said person has been consistently considered and treated by the adopter/s as his/her own child since minority; 5. A child whose adoption has been previously rescinded; or 6. A child whose biological or adoptive parent/s has died: provided that no proceedings shall be initiated within 6 months from time of death of said parents (Sec. 9) Where to file application? Family Court of the place where adopter resides Either with the RTC having jurisdiction over the child, or within the ICAB, through an intermediate agency, whether governmental or an authorized and accredited agency, in the country of the prospective adoptive parents (Sec. 10)

Grounds for disinheritance

Convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants. Accused the testator of a crime for which the law prescribes imprisonment

Descendants (Art. 919, NCC)

Ascendants (Art. 920, NCC)

Spouse (Art. 921, NCC)

√

√

√

√

√

√

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for 6 years or more, if the accusation has been found groundless. By fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made. A refusal without justifiable cause to support the parent or ascendant who disinherits such child or descendant. Convicted of adultery or concubinage with the spouse of the testator. Maltreatment of the testator by word or deed, by the child or descendants. He leads a dishonourable or disgraceful life Conviction of a crime which carries with it a penalty of civil interdiction. Loss of parental authority for causes specified in the Code. Parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue. An attempt by one of the parents against the life of the other, unless there has been a reconciliation between them. The spouse has given cause for legal separation. The spouse has given grounds for loss of parental authority.

√

√

√

√

√

√

√

√

√

√

√

√

√

√

√

√

Note: The enumerations are EXCLUSIVE. Summary on rules on legitime Children or descendants Legitimate children ½ of the estate divided alone (Art. 888, NCC) equally. Legitimate children ½ of the estate. and surviving spouse (Art. 892[2], NCC)

Parents or ascendants

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Surviving spouse

Equal to one share of one legitimate child.

FAR EASTERN UNIVERSITY INSTITUTE OF LAW CIVIL LAW LAST MINUTE TIPS | BAR EXAMINATIONS 2017

One legitimate child and surviving spouse (Art. 892[1], NCC) Legitimate children and illegitimate children (Art. 176, FC)

Legitimate children, illegitimate children, and surviving spouse (Arts. 895, NCC)

One legitimate child, illegitimate children and surviving spouse (Ibid) Legitimate parents/ ascendant alone (Art. 889, NCC) Legitimate parents and surviving spouse (Art. 893, NCC). Legitimate parents, illegitimate children, and surviving spouse (Art, 899, NCC) Surviving spouse alone (Art. 900[2], NCC)

Surviving spouse and illegitimate children (Art. 894, NCC) Surviving spouse and illegitimate parents (Art. 903, NCC) Illegitimate children alone (Art, 901, NCC) Illegitimate children/descendants and legitimate parents/ ascendants (Art. 896, NCC) Illegitimate parents alone (Art. 903, NCC)

½ of the estate

Legitimate: estate.

½

¼ of the estate.

of

the

Illegitimate: each will get ½ share of one legitimate child. Legitimate: ½ of the estate.

A share equal to that of one legitimate child.

Illegitimate: each will get ½ share of one legitimate child. Legitimate: ½ of the estate

¼ of the estate.

Illegitimate: each will get ½ share of one legitimate child. ½ of the estate.

¼ of the estate.

½ of the estate.

¼ of the estate.

½ of the estate.

1/8 of the estate.

GR: ½ of the estate. XPN: Articulo mortis – 1/3 of the estate. XPN to the xpn: If there is cohabitation as husband and wife for more than 5 yrs. – ½ of the estate. 1/3 of the estate.

1/3 of the estate.

¼ of the estate.

½ of the estate ¼ of the estate

½ of the estate

½ of the estate.

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¼ of the estate.

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Summary on division of shares in intestate succession Survivors

LC/LD

LC/LD alone

100%,

LC and ILC

LC and SS

LC, SS and ILC LP alone

Legitimate ascendants other than parents

LP & ILC LP & SS LP, SS, ILC ILC alone ILC & SS SS alone SS & ILP SS & B/S, N/N ILP alone B/S alone (whether all fullblood or all half-blood)

B/S (some full-blood and some half-blood)

ILC/ILD -

SS

LP/LA

ILP

B/S, N/N

Other Collaterals

State

-

-

-

-

-

-

Proportion of 2:1 (each ILC shall receive ½ share of 1 LC)

-

-

-

-

-

-

Equally

Equal to the share of 1LC

-

-

-

-

-

-

-

-

-

-

100% Paternal line: ½ divided equally

-

-

-

-

-

-

-

-

-

-

-

-

-

Proportion of 2:2:1 (SS: Share of 1LC ILC: ½ of 1LC) -

-

-

-

-

Maternal line: ½, divided equally

-

½ -

½

(Note: Rule on Proximity must be observed.) ½ ½

-

¼

¼

½

-

-

-

-

-

100% ½ -

½ 100% ½

-

½

-

-

-

-

-

½

-

-

½

-

-

-

-

-

-

100%

-

-

-

-

-

-

100%

-

-

-

Proportion of 2:1 (halfblood shall receive ½ share of the share of full-

-

-

-

-

-

-

-

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N/N alone

-

-

-

-

-

blood)* 100%, per capita

Other collaterals

-

-

-

-

-

--

State

-

-

-

-

-

-

100% (Note: Rule on proximity must be observed) -

-

-

100%

Legend: LC/LD = Legitimate children/Legitimate descendants; ILC/ILD = Illegitimate children/Illegitimate descendants; SS = Surviving Spouse; LP/LA = Legitimate Parents/Legitimate Ascendants; ILP = Illegitimate Parents; B/S = Brothers and sisters; N/N = Nephews and Nieces. *This division is also applicable to nephews and nieces who are full-blood and half-blood relatives of the decedent.

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