Civil Law Review by Atty. Lopez Rosario

CIVIL LAW REVIEW 1 Atty. Ma. Liza Lopez - Rosario PRELIMINARY CHAPTER CIVIL CODE OF THE PHILIPPINES I. REPUBLIC ACT 386A. CIVIL LAW ≠ CIVIL CODE Civil Law – the mass of precepts which determines and regulates those relation of assistance, authority and obedience existing among members of the family as wellas among members of a society for the protection of private interests. (Sanchez Roman) Civil Code – collection of laws which regulates the private relations of the members of civil society, determining their respective rights and obligations with reference to persons, things and civil acts. (Tolentino) Q: Does the CC contains an effectivity clause? A: Yes. One year after its publication, the code took effect. Q: When does the CC took effect? A: August 30, 1950 Q: Can we conclude that it was published on August 30,1949? A: In Lara vs. Del Rosario, the SC said that the reckoning date is the actual date of circulation. The SC emphasized the importance of publication - publication as an exercise of due process. Published on July 1949, the copies of the CC were simply stored. SC decided to make use of the date of circulation (August 30, 1949) and not the date of publication (July 19, 1949) because the purpose of publication is defeated when copies of the CC were released. Lara vs. Del Rosario, 20 April 1954 Facts: Del Rosario owner of 25 taxi cabs operated a taxi business. He employed 3 mechanics and 49 drivers. On September 4, 1950, without giving said mechanics and drivers 30 days advance notice, Del Rosario sold his 25taxi cabs to La Mallorca, a transportation company, as a result of which the employees lost their jobs. They brought this action against Del Rosario tore cover compensation for overtime work and services rendered on Sundays and legal holidays provided for in Article 302 of the Code of Commerce because of the failure of their employer to give them 1 month notice. Issue: Whether or not the Civil Code is applicable. Held: As to the month pay under Article 302 of the Code of Commerce, Article 2270 of the Civil Code appears to have repealed said Article 302 when it repealed the provisions of the Code of Commerce governing agency. This repeal took place on August 30, 1950, when the New Civil Code

went into effect, that is, 1 year after its publication in the official gazette. The SC ruled that the Civil Code took effect on August30, 1950, 1 year after its circulation, August 30, 1949 and not from the publication on July 19, 1949 for copies were not released on such date. Note: The Lara Case at the outset looks like a labor case. On the issue of what law is applicable, the SC said that the CC took effect repealing the Code of Commerce. July 19, 1949 – publication August 30, 1949 – circulation August 30, 1950 – effectivity

B. CIVIL LAW ≠ COMMON LAW Common Law– system of jurisprudence based on judicial precedents rather than statutory laws or legislative enactments. It does not consist of absolute, fixed and inflexible rules but rather of broad, comprehensive principles based on justice, reason and common sense.

II. LAWS Law– rule of conduct, just and obligatory, promulgated by legitimate authority for common observance and benefit. (Sanchez Roman)*Refers not just to statutes but also includes executive order, presidential decrees, administrative rules, central bank circulars. Includes those enacted by those exercising quasi-legislative function. A. PUBLICATION – ARTICLE 2 OF THE CIVILCODE AS AMENDED BY E.O. 200*G.R.: Publication is an indispensable requisite for the effectivity of the laws (Tanada vs. Tuvera) *Exceptions: 1. The Law is interpretative in nature2. Law is internal in nature3. Letters of instructions – rules to be followed bysubordinates4. Municipal ordinances are covered by the Local Government Code. Cases: 1. Taňada vs. Tuvera, 24 April 1985 Facts: Tanada, Sarmiento and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI)seek a writ of mandamus to compel respondent public officials to publish in the official gazette of various PDs, LOIs, GOs, proclamations, Eos, Letters of Implementation and AOs. Respondents contend

that publication in the official gazette is not a sine qua non requirement for the effectivity if laws where the laws themselves provide for their own effectivity dates so publication in the official gazette is not necessary. Issue: Whether or not publication is an indispensable requisite for the effectivity of laws. Held: Publication is an indispensable requisite for the effectivity of laws. All statutes including those of local application and private laws shall be published as a condition for their effectivity, which shall begin 15 days after publication unless a different effectivity date is fixed by the legislature. Covered by this rule are PDs and Eos promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or at present directly conferred by the Constitution. Administrative Rules and Regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. The purpose of publication is to give adequate notice of the various laws xxx PDs that provide for fines, forfeitures or penalties shall be published. Other PDs which apply only to particular persons or class of persons such as AOs and Eos need not be published on the assumption that they have been circularized to all concerned. Notes: ∞Branches of the Gov’t – Legislative, Executive, Judicial (separation of powers) ∞Amendment No. 6 of 1973 Constitution - The president is given the power to enact laws. People vs. Que Po Lay, G.R. L-6791 Facts: Que Po Lay is appealing from the decision of the CFI finding him guilty of violating CB Circular 20 and sentencing him to suffer 6 months imprisonment xxx. The charge was that Que who was in possession of a foreign exchange consisting of U.S. dollars, U.S. checks and U.S. money orders amounting to $7,000 failed to sell them to CB. The appeal of Que is based on the claim that the said circular was not published in the official gazette. The Solicitor General contended that publication is not necessary. Issue: W/N not the CB Circular should be published. Held: A CB Circular if punitive in nature should be published. As a rule, circulars and regulations which prescribes a penalty for its violation should be published before becoming effective on the general principle and theory that before the public is bound by its contents especially its penal provisions, a law, regulation or circular must first be published and the people officially and specifically informed of said contents and penalties. 3. Phil. Int’l vs. Judge Angeles, 21 October 1996

Facts: The controversy springs from the issuance by the PITC of an AO under which applications to the PITC for importation from China must be accompanied by a viable and confirmed Export Program of Philippine Products. For failure to comply with their undertakings to submit export credits equivalent to the value of their importation as required by the AO, further import applications were withheld by PITC. Issue: W/N the AO should be published. Held: Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. 4. Judge Dadole vs. COA, 3 December 2002 Facts: Local Budget Circular 55 issued by the DBM which reduced the monthly allowances given by Local Governments to RTC and MTC judges was questioned inthis case. Petitioner judges filed a protest against the notices. Issue: W/N the DBM circular is valid. Held: LBC 55 is void on account of its lack of publication. Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of an administrative agency and the public need not be published. Neither is publication required of the so called LOIs issued by administrative superiors concerning the rules or guidelines to be followed be their subordinates in the performance of their duties. B. WHERE SHOULD PUBLICATION TAKEPLACE?*G.R.: 1. Official Gazette or 2. Newspaper of General Circulation (Basa vs. Mercado) *Exception: The case of Hagonoy Market Vendor Association vs. Municipality of Hagonoy Bulacan.

Cases:1. Basa vs. Mercado, 61 PHIL 636 Facts: The judge of CFI Pampanga allowed and probatedthe last will and testament of Ines Basa (the deceased). The same judge approved the account of the administrator of the estate, declared him the only heir of the deceased and closed the administration proceedings. The petitioners filed a motion in which they prayed that the said proceedings be re-opened and alleged that the court lacked jurisdiction to act in the matter because there was a failure to comply with requirements as to publication of notice and hearing prescribed in the Code of Civil Procedure. They also contend that the weekly newspaper ―Ing Katipunan‖ in which the notice and hearing was published was not a newspaper of general circulation in the province of Pampanga.

Issue: W/N the Ing Katipunan is a NGC. (What is a NGC?)Held: It is a NGC for the following reasons:1.It is published for the dissemination of local news and general information2.It has a bona fide subscription list of payingsubscribers3.It is published at regular intervals (the trial court ordered the publication to be made in said newspaper precisely because it was a NGC)4.It is not a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. 2. Hagonoy vs. Municipality, 6 February 2002 Facts: The Sangguniang Bayan of Hagonoy Bulacan enacted an ordinance which increased the stall rentals of the market vendors in Hagonoy. Article 3 of the said ordinance provided that it shall take effect upon approval. The ordinance was posted from November 4 to 25, 1996.In the last week of November 1997, petitioners were personally given copies and were informed that it shall been forced on January 1998. The petitioners contended that the subject ordinance was not posted as required by law. Issue: W/N the ordinance was posted as required by law. Held: An ordinance which increased the stall rentals of the market vendors has complied with the publication requirement when the same was posted in 3 conspicuous places since there was no newspaper of local circulation in the municipality which is in accordance with Section188 of the LGC. C. EFFECTIVITY*G.R.: Law shall take effect on the date it is expressly provided to take effect. *Exception: If no such date is made after 15 days following the completion of its publication. Cases:1. La Bugal – B’laan vs. Ramos, 27 January 2004 Facts: Pres. Aquino issued EO 279 authorizing the DENR Secretary to accept, consider, and evaluate proposals from foreign-owned corporations for contracts involving technical or financial assistance etc. Pres. Ramos approved R.A. 7942 to govern the exploration, development, utilization and processing of mineral resources. After publication in 2 NGCs, the DENR Secretary issued DENR AOs otherwise known as Implementing Rules and Regulations of R.A. 7942.Petitioner contended that the EOs did not come into effect. Issue: Whether the EOs did not come into effect. Held: According to petitioners EO 279 was signed into law by Pres. Aquino on July 25, 1987, 2 days before the opening of the Congress on July 27, 1987. Section 8 of the said EO states that the same shall take effect immediately. This provision according to petitioner runs counter to Section 1 of EO 200 which provides that laws shall take effect xxx (now Article 2 of the CC). On that premise, petitioners contend that EO 279 could

have only taken effect 15 days after its publication at which time Congress had already convened and the President’s power to legislate had ceased. Petitioner’s contention has no merit. There is nothing in EO 200 that prevents a law from taking effect on a date other than – even before – the15 day period after its publication. Indeed, this is the very essence of the phrase ―unless it is otherwise provided‖. Section 1 of EO 200 therefore applies only when a statute does not provide for its own date of effectivity. Thus, EO278 became effective immediately upon its publication in the official gazette on August 3, 1987. 2. CIR vs. Lhuillier, 15 July 2003 Facts: CIR issued a Memorandum Order 15-91 imposing a 5% lending investor’s tax on pawnshops. The BIR issued an assessment against Lhuillier demanding payment of deficiency tax. Lhuillier contended that the said memo is a new and additional tax measure on pawnshops which Congress could enact. Issue: W/N the said memoranda are valid even without publication. Held: An interpretative rule is designed to provide guidelines to the law which the administrative agency is in charge of enforcing xxx Whether an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When the administrative agency goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and thereafter to be duly informed. The said orders cannot be viewed simply as implementing rules or directive measures revoking in the process previous rulings of past commissioners xxx The due observance of the requirements of publication should not have been ignored. NOTE: PUBLICATION ≠ EFFECTIVITY Q: The Recto Law was approved by the Senate on January 1, 2005. It contains an effectivity clause which “should take effect immediately after the signing of the President”. When does the law take effect? A: [Steps: (1) Take into consideration the ruling in Tanada. (2) Take note of the general rule and the exception. (3) Determine what kind of law is involved. (4)Apply Article 2. (5) Find out if there is a NGC] G.R.: If the law has effectivity clause, follow the effectivity clause. EXC.:Apply the 15-day period counted after the publication if there is no effectivity clause. Q: What is the purpose of publication?

A: To inform the public Note: ∞ Tabloids are published at regular intervals

III. ARTICLE 3 – IGNORATIA JURIS NONEXCUSAT Q: Why ignorance of the law excuses no one? A: Article 2 does not emphasize publication but effectivity. Presumption: Every person is presumed to know the law, since the government has already complied with the requirement of publication. G.R.: Ignorance of the law excuses no one from compliance therein. EXC.: 1. Ignorance of fact may excuse a party from the legal consequences of his conduct. (Ignoratia Facti) Ex. Ignorance of foreign law is a mistake of fact.2.Mistake as to difficult questions which is the same as mistake of fact. Read Articles 526, 1334,2154 and 2155 CC Cases:1. Miaque vs. Judge Pamonag, 28 March 2003 Facts: Complainants who were connected with the Daily Informer (a widely circulated newspaper in Western Visayas) were charged before the MTC by Judge Pamonag of the crime of libel. Respondent judge conducted a preliminary investigation and thereafter issued warrants for the arrest of the complainants. Complainants filed an administrative case against the judge for gross ignorance of the law. They contended that the judge neither has authority to conduct a preliminary investigation not to issue warrants for their arrest. The judge said that it was his first libel case and that he issued the warrants in good faith. Issue: W/N respondent is guilty of gross ignorance of the law. Held: Judges are expected more than just cursory acquaintance with statutes and procedural rules. They must know the law and apply them properly in good faith. The provisions of Article 360 of the RPC on the persons authorized to conduct preliminary investigation in libel cases is so elementary, not to know it constitutes gross ignorance of the law. 2. Estate of Boo vs. Gee, 3 March 1922 Facts: Cheong Boo, a native of China died intestate in Zamboanga. He left property worth P100,000. The estate of the deceased was claimed on one hand by Gee, whoalleged that he was a legitimate child by a marriagecontracted by Boo with Tan Dit in China in 1895. The estate was claimed, on the other hand by Mora Adong who

alleged that she had been lawfully married to Boo in1896. Gee introduced in evidence a document in Chinese stating the marriage ceremony that too place in Amoy, China. Issue: W/N the document presented by Gee may be recognized here in the Philippines. Held: Ignorance of a foreign law is not ignorance of the law but of fact because such foreign law must be first alleged and proved as a matter of fact, there being no judicial notice of said foreign law. The Chinese marriage was not adequately proved. Processual Presumption – if the foreign law is not properly alleged and proved, the presumption is that it is the same as our own law. (Estate of Suntay vs. Suntay) 3. Suntay vs. Suntay, 31 July 1954 Facts: On May 14, 1934, Jose Suntay died in Amoy, China. He married twice, the first time to Manuela Cruz with whom he had several children now residing in the Philippines and the second time to Maria Billian with whom he had a son. Apolonio (son of Manuela) filed José’s intestate in the CFI. Maria also instituted the present proceedings for the probate of a will allegedly left by the deceased. According to Silvino (son of Maria), before the deceased died in China, the deceased left a will with Go Toh, Barreto and Lopez as attesting witnesses. Go Toh arrived in the Philippines with the will; unfortunately, the sons of Manuela snatched it. Go Toh said that the will was already probated in China. Issue: W/N the Philippine court may recognize the probate of the will in China. Held: Where it appears that the proceedings in the court of a foreign country were held for the purpose of taking the testimony of 2 attesting witnesses to the will and the order of the probate court did not purport to allow the will, the proceedings cannot be deemed to be for the probate of the will as it was not done in accordance with the basic and fundamental concepts and principles followed in the probate and allowance of wills. The will in this case cannot be allowed. In the absence of proof that the municipal district court of Amoy, China is a probate court and on the Chinese Law of Procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the same as those provided for in our laws on the subject. (Processual Presumption) IV. ARTICLE 4 – RETROACTIVITY VS.PROSPECTIVITY*G.R.: Prospectivity of laws *EXC.: When law can be given retroactive effect: 1. Law expressly provides for its retroactivity. But in no case must an ex post facto law be passed.2.Law is curative in nature (laws intended to correct errors or irregularities incurred in judicial or administrative proceedings.3.Law is remedial in nature - there are no vested rights in rules of procedure (Medina vs. CA)4.Law is penal but favorable to the accused (Art.22 of the RPC)5.Laws creating new rights provided that no vested right is impaired

(Art. 2253, Par. 2; Quizana vs. Redugerio)6.Emergency laws – authorized by the police power of the government. Notes: ∞ Law is penal but favorable to the accused. Examples: Case of Robin Padilla – there was a bill proposed reducing the sentence of illegal possession of firearms. The bill was authored by Senator Ramon Revilla, Sr.. The President decided to remove the death penalty. Convicts who are in the death row were not punished because of the law. Q: Does the Family Code contain a retroactivity clause? A: Yes. Article 256 of the Family Code provides that this code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the CC or other laws. Q: An illegitimate child was born prior to the effectivity of the FC, will the provision of retroactivity under the FC apply to the illegitimate child? A: If the father died prior to the effectivity of the FC, compulsory heirs already acquired vested rights even if the distribution of property has not yet taken place. If the father died during the effectivity of the FC, retroactivity applies because assuming the father has legitimate child, there is no vested right yet. Cases:1. Medina Investigation vs. CA, 20 March 2001 Facts: Taburnal was hired by petitioner as security guard and was assigned to Abenson, Inc. Taburnal was relieved due to violations pursuant to his service contract. He then filed a case against his employer. The labor arbiter ruled in favor of Taburnal. Petitioner appealed to the NLRC which dismissed the same for lack of jurisdiction. Petitioner filed a petition for certiorari in the CA which dismissed the petition for having been filed beyond the 60-day reglementary period. CA ruled that the petition was filed on the 67th day since petitioners received on November 10, 1999 the order dated August 26, 1999 of the NLRC and the MR was filed on 19 November 1999.Copy of the order denying the said motion was received by petitioners on 3 April 2000 while the petition was filed with the CA on 31 May 2000. Petitioners contended that their petition was within the period – that the amendment under A.M. 00-2-03 of the SC wherein the 60-day period to file a petition for certiorari is reckoned from receipt of the resolution denying the MR should be deemed applicable. Issue: W/N the said A.M. may be retroactively applied. Held: The amendment should be deemed applicable. It took effect on 1 September 2000. Remedial statutes or statutes relating to remedies or modes of procedures which do not create or take away vested rights but only operate in furtherance of the remedy or confirmation of rights already existing do not come within the legal conception of a

retroactive law or the general rule against retroactive operation of statutes. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may attach to nor arise from procedural laws. 2. Elvira Yu Oh vs. CA, 6 June 2003 Facts: Specific performance was filed against Elvira for failure to pay the pieces of jewelry she purchased from Solid Gold International. A compromise agreement was entered between Solid Gold and Elvira wherein the latter issued post dated checks. The said checks bounced. The RTC found Elvira guilty of violation of BP 22. Elviraappealed to the CA alleging that the RTC has no jurisdiction over the offense. Elvira contended that the CA erred in not resolving the jurisdictional issue in her favor, thereby, unjustly depriving her of the legal benefits of giving retroactive effect to the provisions of RA 7691expanding the jurisdiction of the inferior courts (MTC) to cover the offenses involved in her case. Issue: W/N laws defining jurisdiction of courts should be given retroactive effect. Held: Laws defining jurisdiction of courts are substantive in nature and not procedural for they do not refer to the manner of trying cases but to the authority of the courts to hear and decide certain cases in the various instances of which they are susceptible. RA 7691 is a substantive law and not a penal law as nowhere in its provision defines a crime neither does it provide a penalty of any kind. Jurisdiction is determined by the law in force at the time of the filing of the complaint and once acquired, jurisdiction is not affected by subsequent legislative enactments placing jurisdiction in another tribunal. Hence, the contention of Elvira is incorrect. 3. Quizana vs. Redugerio, 7 May 1959 Facts: The action is based on an actionable document which states that in the event that the defendants failed to pay Quizana the amount of P550, the former will transfer the land specified in the agreement. When the defendants failed to pay, the offered to pledge the land and transfer possession thereof to the plaintiff but the latter refused the offer. Issue: W/ N the second part of the written obligation in which the obligors agreed and promised to deliver a mortgage over the land upon their failure to pay the debt is valid upon the plaintiff. Held: This second part of the obligation in question is what is known in law as a facultative obligation defined in Article 1206 of the CC. This is a new provision and is not found in the Old Spanish Civil Code which was in force at the time of the execution of this agreement. There is nothing in the agreement which would argue against its enforcement. It is not contrary to law or public morals or public policy and notwithstanding the absence of any legal provision at the time

it was entered into governing it, as the parties had freely and voluntarily entered into it, there is no ground or reason why it should not be given effect. It is a new right which should be declared effective at once.

V. ARTICLE 6 – WAIVER OF RIGHTS *G.R.:Rights may be waived. *EXC.:1. Unless waiver is contrary to law, public order, public policy, morals or good customs.2. Waiver is prejudicial to a third person. For waiver to be valid there must be: 1. A vested right 2.A voluntary relinquishment of such vested right. 3.The person waiving must know of the existence of his right. Notes: ∞ Vitiated consent should not be present∞ Actual right should be existing. Q: in students’ field trip, the parents are made to sign a waiver. Is this in accordance with Article 6? A: (The right involved here is the right to file an action for damages against the school if something would happen in the field trip).Up to now, there is no SC decision regarding this matter. This happens also in hospitals before operation. Contrary to public policy will not be applied since up to now it is being practiced. There is no existing right yet. No actual right. Even if you keep on signing the waiver, it does not give any effect because there is no right existing. Sanchez vs. CA, 29 September 1997 Facts: Rosalia Lugod is the only child of Spouses Juan Sanchez and Maria Villafranca while Arturo Lugod, Evelyn Lugod-Ranises and Robert Lugod are the legitimate children of Rosalia (private respondents).Petitioners are the illegitimate children of Juan Sanchez. Following the death of her mother Maria, Rosalia filed a petition for letters administration over the estate of her mother and the estate of her father Juan. The petitioners filed a petition for letters administration over the intestate estate of Juan, which petition was opposed by Rosalia xxx The parties executed a compromise agreement wherein they agreed to divide the properties of Juan. Rosalia, the appointed administratix failed to deliver some proper ties to the petitioners. The trial court in deciding the case did not follow the compromise agreement. The CA dismissed the petitioner’s petition. Issue: W/N the compromise agreement is valid. Held: A compromise agreement entered into by the heirs regarding their proportionate share in the estate of their deceased father does not constitute relinquishment of aright

to properties which were not known. Such waiver is valid because the parties waived a known and existing interest – their hereditary right which was already vested in them by reason of the death of their father. Article 777 provides that the right to succession is transmitted from the moment of the death of the decedent. Vested Right – is one whose existence, effectivity and extent does not depend upon events foreign to the will of the holder. G.R.: It is not possible to waive obligations and duties. EXC.: 1. When authorized by law (Obligation is concomitant of a right that is waived. Examples: Read Articles 488 and 662 of the CC) 2. When authorized by the holder of the correlative right. VI. ARTICLE 8 – JUDICIAL DECISIONS HAVETHE FORCE AND EFFECT OF A LAW Doctrine of Stare Decisis– When a court has laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. Horizontal Stare Decisis – a division of the SC may or may not follow the decision of another division. (SC is divided by several divisions, usually, in 1 division there are 5 justices) Vertical Stare Decisis– courts have no option but to follow the decisions or orders of the SC. This is obligatory on the part of the courts because judicial decisions have the force and effect of a law. Judicial decisions are called ―judge-made laws‖. Vertical stare decisis happen when SC had ruled en banc. Ratio Decidendi ≠ Obiter Dictum Parts of a Decision: 1. Ratio Decidendi – it is the principle which the case established. It is the reason for the decision. 2. Obiter Dictum– opinions necessary to the determination of a case not binding and cannot have the force of judicial precedents (People vs. Macadaeg) Cases:1. People vs. Macadaeg, 28 May 1952 Facts: Antonio Guillermo was convicted of murder. The petitioner contended that the CFI ruled in its judgment of conviction that Antonio is not entitled to the benefits of amnesty because the murders of which he was convicted were committed ―not in furtherance of the resistance movement but in the course of a fratricidal strife between2 rival guerilla units‖. The 7th Guerilla Amnesty Commission composed of Hon. Macadaeg, Pecson and San Jose together with convicted Antonio opposed the petition alleging that the decision of the court does not prevent Antonio from invoking his right to the provisions of

amnesty because said right was not at issue at the trial of the case against him and the pronouncement of the court is not final and conclusive and is merely an obiter dictum. Issue: W/N the pronouncement of the court is obiter dictum. Held: A finding of a court is deemed a pronouncement on a material issue and is not an obiter dictum. It is final and conclusive against parties involved and may not under the principle of res judicata be again raised in issue by the min any tribunal, judicial or administrative. The ruling of the court that Antonio is not entitled to the benefits of amnesty is not an obiter dictum but is a ruling of the court on an issue expressly raised by the party on facts or evidence adduced in the course of the trial of this case. 2. Tala Realty vs. Banco Filipino, 20 June 2000 Facts: BF faced a legal problem with respect to its branch site holdings. The General Banking Act provides that banks may only invest in real estate up to 50% of their net worth. To address the problem, its major stockholders agreed to set up an entity to which its existing branch sites for BF with all such branch sites including thoseunloaded to be leased to BF. BF sold 11 real estate properties to Tala including the Davao branch site(subject of this suit). Tala leased the same branch to BF. The petition stems from an action of ejectment where in the issue was which of the 2 different contracts of lease presented by each party governs them. Tala presented an11 year lease agreement. BF presented a 20 year lease contract. MTC and RTC both refused to exercise jurisdiction. The CA ruled that since other similar ejectment suits were brought before it in which the 20-year lease contract was upheld, it ruled in favor of BF. Issue: W/N stare decisis should be applied in this case to resolve the issue of which of the 2 contracts should be pronounced as valid. Held: It is the better practice that when a court has laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. Even though the locations of the properties are different in the 2 cases, the conclusion reached in one can very well be applied in the other inasmuch as not only are the parties the same but more importantly the issue is one and the same and hence should no longer be re-litigated. 3. Tung Chin Hui vs. Rodriguez, 2 April 2001 Facts: Petitioner a Taiwanese arrived in this country as temporary visitor. He was arrested by policemen who turned him over to the BID. A summary deportation order was issued finding him guilty of possessing a tampered passport. Petitioner filed before the RTC a petition for Habeas Corpus. The RTC granted the petition. Respondents filed an appeal and was given due course by the RTC. The petitioner appealed but the CA ruled in favor of respondents. During the pendency of the proceedings before the CA, petitioner filed a petition for certiorari in the SC contending that the RTC should have rejected the appeal of the respondents being filed late or beyond the 48-hour period provided under the Rules of Court. The SC denied the petition.

Issue: Is the reglementary period within which to appeal in habeas corpus cases 48 hours from notice of the decision appealed from (as petitioner contends) or is it 15days similar to other cases (as contended by respondents)? Held: This court already rejected the same arguments of the petitioner in G.R. 137571. Pertinent portions of that decision are reproduced below: ‖The reglementary period for filing an appeal in a habeas corpus case is now similar to that in ordinary civil actions (Sec. 3, Rule 41, ROC)‖. Stare decisis pre supposes that the facts of the precedent and the case to which it is applied are substantially the same. Where a finding of court was based on a procedure of law that has been repealed, the facts under the same cannot be relied upon by courts on the succeeding cases.

VII. ARTICLE 14 – PENAL LAW – THEORY OF TERRITORIALITY *G.R.: Penal law follows the theory of territoriality and generality regardless of nationality. *EXC.: 1. Principles of Public International Law on diplomatic immunity. 2. Presence of treaty stipulations. Ex-territoriality– territorial jurisdiction of one state forms an extension of the territory of another state. Example: Embassy Extraterritoriality– exemption by virtue of treaty stipulation. Example: Ambassador Schneckenburger vs. Moran, 31 July 1936 Facts: Petitioner was duly accredited honorary consul of Uruguay at Manila. He was charged in the CFI of Manila with the crime of falsification of a private document. He objected to the jurisdiction of the court on the ground that both under the constitutions of U.S. and the Philippines, the court below had no jurisdiction to try him. Issue: W/N a consul is immune from suit. Held: A consul is not entitled to the privileges and immunities of an ambassador or minister but is subject to the laws and regulations of the country to which he is accredited. A consul is not exempt from criminal prosecution for violations of the laws of the country where he resides.

VIII. ARTICLE 15 – PRINCIPLE OFNATIONALITYNote: Civil laws pertaining to family rights / duties,status, condition, legal capacity follow the principle of nationality. Read:R.A. 9225 – Dual Citizenship Act

Sec. 2, R.A. 9225 – Declaration of Policy: All Philippine citizens who become citizens of another country shall be deemed not to have lost their Philippine citizenship subject to conditions. Sec. 3, R.A. 9225 – Retention of Philippine Citizenship: Natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the republic xxx. Derivative Citizenship (Sec. 4, R.A. 9225) – The unmarried child whether legitimate, illegitimate or adopted, below 18 years of age of those who re-acquire Philippine Citizenship upon effectivity of this act shall be deemed citizens of the Philippines. Cases:1. Roehr vs. Rodriguez, 20 June 2003 Facts: Petitioner, a German and a resident of Germany married Carmen Rodriguez (a Filipina) in Hamburg, Germany. Their marriage was ratified in Tayasan, Negros Oriental. Out of their union were born Carolynne and Alexandra. Carmen filed a petition for declaration of nullity of her marriage before the RTC. Petitioner filed a motion to dismiss but was denied by the court. Petitioner also obtained a decree of divorce in Germany. The CFI of Germany dissolved the marriage but parental custody for the children was granted to petitioner. Petitioner now alleges that there is nothing left to be tackled by the Philippine Court as there are no conjugal assets alleged in the petition and the custody of the children had already been awarded to petitioner. Issue: W/N the court may retain jurisdiction over the case despite the fact that the petitioner has already obtained a decree of divorce from the German Court. Held: Divorce decrees obtained by foreigners in other countries are recognizable in our jurisdiction but the legal effects thereof – custody, care and support of children must still be determined by our courts. Before our courts can give the effect of res judicata to a foreign judgment such as the award of custody to petitioner by the German Court, it must be shown that the parties opposed to the judgment had been given ample opportunity to do so on the grounds allowed under Section 50, Rule 39, ROC (now Section 48, Rule 39) – ―The effect of a judgment of a tribunal of a foreign country, having jurisdiction to pronounce judgment is as follows:(a)In case of a judgment upon a specific thing, the judgment is conclusive upon the title to the thing.(b)In case of a judgment against a person, the judgment is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title but the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the party, xxx‖. Exceptional Case:2. Van Dorn vs. Romillo, 8 October 1985 Facts: Alice Van Dorn is a citizen of the Philippines while private respondent (Richard Upton) is a citizen of U.S. They were married in Hong Kong. They established their

residence in the Philippines and begot 2 children. The parties were divorced in Nevada, U.S. and remained and that Alice re-married in Nevada, this time to Theodore Van Dorn. Richard filed a suit against Alice stating that Alice’s business in Ermita, Manila is conjugal property of the parties and asking that petitioner be ordered to render an accounting of that business and that Richard be declared with right to manage that conjugal property. Alice contended that respondent is stopped from laying claim on the alleged conjugal property because of the representation he made in the divorce proceedings before the American Court that they had no community of property. Respondent avers that the divorcedecree cannot prevail over the prohibitive laws of the Philippines. Issue: W/N the decree of divorce is valid in the Philippines. Held: The decree is binding on Richard as an American citizen. For instance, Richard cannot sue Alice as her husband in any State of the Union. Owing to the nationality principle (Article 15) – only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad which may be recognized in the Philippines provided they are valid according to their national law. In this case, the divorce in Nevada, released Richard from their marriage from the standards of American law, under which divorce dissolves the marriage. Pursuant to his national law, Richard is no longer the husband of Alice. He would have no standing to sue in the case below as Alice’s husband entitled to exercise control over conjugal assets. He is bound by the decision of his own country’s court, which validly exercised jurisdiction over him and whose decision hedoes not repudiate. Richard’s contention that under our laws, Alice is considered married to him cannot be just. Take Note: Article 26, Par. 2, Family Code – if alien spouse obtained the decree of divorce, Filipino spouse will have the right to remarry. Q: Juan and Maria would like to get married. The problem is Juan is in the Philippines and Maria is in Spain working. Maria is only 16 years old and Juan is21 years old. Maria learned that under Spanish law, the marrying age for female is 14 years old and for male is16 years old. Under the Spanish law, marriage by proxy is allowed. Juan has no money to go in Spain. Their marriage (by proxy) was then celebrated in Spain. Is themarriage valid? A: (Before answering, you are compelled to apply Article15 – Nationality Theory applies). Legal capacity – for as long as Maria is a Filipina, the Family Code governs her. The marrying age here is 18 years old. Regarding marriage by proxy up to now there are conflicting decisions. Alternative answers:1. Prof. Sta. Maria – Null and void but not on the argument that under the Philippine law during marriage ceremony they should be physically present.2.Considering marriage ceremony is merely formal, applying Article 17 – lex locicelebrationis (law of the place where the contract is celebrated). But this Article is confined only to forms and solemnities meaning extrinsic validity of the contract, as long as it is valid there and not prohibited here, marriage by proxy is valid here.(What is

prohibited is incestuous marriage, bigamous marriage xxx). Article 17 does not include intrinsic validity. Article 17 applies only to forms and solemnities. Notes:∞ Article 17 may be applied as a general rule. Exception – exterritoriality. ∞ To answer: connect Family Code to Article 17 and state authority.∞ If the problem is too general, make a qualification. If intrinsic, apply Article 15. If extrinsic, apply Article 17. Q: Assuming the marriage is valid, Juan fell in lovewith another. Does Maria have the right to sue Juan? A: Apply Article 14. (Remember the case of Mark Jimenez and Rod Strunk. Mark – extradition case. Rod – alleged crime was committed here in the Philippines.)Territoriality theory applies. Q: If a spouse married another in Hongkong, may you as the first spouse file a criminal case of bigamy or a civil case here in the Philippines? A: If criminal case, it cannot be filed here because Article14 provides that penal laws are only applied in crimes committed here in the Philippines. Regarding the civil case, it will prosper because Article 15 provides liability for violation of such. Q: David married Chato in the Philippines. A week after David decided to go back to Saudi Arabia to work. David fell in love with Ayce in Saudi. David was able to get acertification capacitating him to marry. They got married. Chato learned of the marriage. What are the possible cases? A: (before answering, this requires you to apply Articles14 and 15. If criminal case, no choice but Chato has to go to Saudi Arabia and find out if Saudi will allow her to file a case for bigamy. If she cannot file, she has to wait for the husband to go back here together with the Ayce and continue to live together and the case now is concubinage. If David was the only one who came back, no crime or case to be filed. Note that adultery and concubinage are not crimes against the state, They are personal. Notes: ∞ Art. 17 – refers to extrinsic validity∞ Art. 15 – refers to intrinsic validity ∞ Art. 16, par. 2 – affirmation of what contains in Art. 15 ∞ If there are foreign places involved in the case, what law should govern, just remember Articles 14 to 17 because you can apply them simultaneously. They do not contradict each other. ∞ Foreigner executing a will remember: lex locicelebrationis, national law, domiciliary law. Q: Why is it that in intestate succession, national lawof the decedent is followed?

A: Art. 15 – when it comes to family right (right to succession is a family right) then it follows that national law should govern.

IX. ARTICLE 16 – LAW GOVERNING REALPROPERTY Note: If the problem involves property, apply the lexsitus. *G.R.: Lex rei sitae * EXC: Intestate and testamentary succession:(a) Order of succession(b) Amount of successional right(c) Intrinsic validity of will (Art. 16)(d) Legal capacity to succeed Renvoi Doctrine / Transmission Theory – ―referring back‖. Decedent is a national of one country and adomicile of another. When the conflict rule of the forum refers a matter to a foreign law for decision. (Bellis vs.Bellis) Forum Non Conveniens– a doctrine whereby a court of law having full jurisdiction over a case brought in a proper venue or district declines to determine the case on its merit because justice would be better served by the trial over the case in another jurisdiction. Long – arm Statute– refers to authorized substituted service. Cases:1. Miciano vs. Brimo, 1 November 1927 Facts: The partition of the estate left by the deceased Joseph Brimo is in question in this case. The judicial administrator of the estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased opposed it. He contended that the partition in question puts into effect the provisions of Joseph Brimo’s will (which states that Joseph’s will shall be governed by Philippine laws)which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation of Article 10 (now Art. 16) of the CC. Issue: W/N Philippine laws may govern the will of Joseph Brimo, a Turkish. Held: Andre did not prove that said testamentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter and in the absence of evidence of such laws, they are presumed to be the same as those of the Philippines. There is no evidence in the record that the national law of the testator was violated in the testamentary dispositions in question which not being contrary to our laws must be complied with and executed. Therefore, the approval of the scheme of partition is not erroneous. Regarding the exclusion of Andre as legatee, in as much as he is one of the persons designated as such in the will, which says ―xxx the institution of legatees in this will is conditional and the condition is that the instituted legatees must respect the testator’s will to distribute his property, not in accordance with the laws of his nationality but in accordance with the laws of the Philippines xxx‖. If this condition is valid, any legatee who fails to comply with the will like

Andre is prevented from receiving his legacy. Said condition is void being contrary to law for Article792 provides that impossible conditions shall be considered as not imposed xxx Said condition is contrary to law because it expressly ignores the testator’s national law. 2. Bellis vs. Bellis, 6 June 1967 Facts: Amos Bellis was a citizen and resident of Texas at the time of his death. Before he dies, he had made 2 wills, one disposing of his Texas properties, the other disposing of his Philippine properties. In both wills, his recognized illegitimate children were not given anything. Texas has no conflicts rule (rule of Private International Law)governing successional rights. Furthermore, under Texas law, there are no compulsory heirs and therefore no legitimes. The illegitimate children opposed the wills on the ground that they have been deprived of their legitimes to which they would be entitled, if Philippine law were to apply. Issues: (1) W/N the illegitimate children are entitled toothier legitimes. (2) W/N renvoi doctrine may be applied in this case. Held: Where the parties call for the application of the Miciano case and the renvoi doctrine, the same cannot be made because first, the Miciano case cannot apply since under the decedent’s national law (Texas), the system of legitimes deed not apply to estate of a citizen of Texas. Second, the illegitimate children cannot call for the application of the renvoi doctrine, there being no conflict of laws involved. The renvoi doctrine usually pertinent where the decedent is a national in one country and domiciled in another. It does not apply to a case where the decedent was a citizen of Texas and was domiciled therein at the time of his death. A provision in a foreigner’s will that his properties should be distributed in accordance with Philippine law and not in accordance with his national law is void, being contrary to Article 15 of the CC. 3. Aznar vs. Garcia, 31 January 1963 Facts: Edward Christensen was a citizen of U.S. and a resident of California. Edward executed a will in Manila bequeathing to Maria Lucy Christensen all his income and property and to Maria Helen Christensen (his acknowledged natural child) P3, 600. Opposition to the approval of the project of partition was filed by Helen insofar as it deprives her legitime as an acknowledged natural child. The court below ruled that as Edward was a citizen of U.S. at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be governed by the law of California, U.S.A. Helen contended that Philippine law should be applied Issue: W/N Philippine law should be applied in this case. Held: Where the testator was a citizen of California and domiciled in the Philippines, the amount of successional rights should be governed by his national law. However, since the conflict of law rules of California provides that in case of citizens who are residents of another country, the law of the country of domicile should apply, then Philippine law on legitimes was applied. Hence, under Philippine laws, the acknowledged natural daughter cannot be deprived of her legitime.

X. ARTICLE 17 – LAW GOVERNING EXTRINSICVALIDITY OF CONTRACTS, WILLS, PUBLICINSTRUMENTS. *G.R.: Lex loci celebrationis (forms and solemnities) or locus regit actum. Application of General Rule: (1) Art. 815 – wills made by Filipinos abroad may be inthe form established by such country. Exc: (a) 2nd par, Art. 17 (diplomatic or consular officials) (b)Article 819 in relation to Art. 818 – Joint wills executed abroad, not valid in the Philippines (c)Art. 816 – Will made by an alien abroad may be executed according to formalities prescribed bylaw where he resides, his country or what civil code prescribes. (d)Art, 817 – will made by an alien in the Philippines executed in accordance with law of his country or law allowed by his country.(2) Art. 26, Family Code – marriages contracted by Filipinos abroad in accordance with laws in force in the said country. Exc.: (a)Art. 35, par 1 - age(b)Art. 35, par. 4 – bigamous marriage(c)Art. 35, par. 5 – mistake of identity(d)Art. 35, par. 6 – void under Art. 53(e)Art. 36 – psychological incapacity(f)Art. 37 – incestuous marriage(g)Art. 38 – void for reasons of public policy

HUMAN RELATIONS I. ARTICLE 19 – ABUSE OF RIGHT ISACTIONABLE *G.R.: Breach of promise to marry, not actionable (Gashem Shookat vs. CA; Hermosisima vs. CA) *EXC.: Breach of promise to marry + some act or event =civil action for damages (Pe vs. Pe; Wassmer vs. Velez) Cases:1. Gashem Shookat Baksh vs. CA, 219 SCRA 115 Facts: Marilou Gonzales filed a complaint for damages against petitioner for the alleged violation of their argument to get married. Marilou alleges that she is 22years old and pretty lass of good moral character while petitioner is an Iranian. The latter countered and proposed to marry her. Petitioner forced her to live with him but petitioner’s attitude towards her started to change, he maltreated and threatened to kill her. Petitioner repudiated their marriage agreement. Issue: W/N a breach of promise to marry is an actionable wrong.

Held: The existing rule is that a breach of promise to marry per se is not an actionable wrong. This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in the statute books. In the light of the above laudable purpose of Art. 21,the SC held that where a man’s promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill his promise, thereafter becomes the proximate cause of the giving herself unto him in a sexual congress, when in reality he had no intention of marrying her, and that the promise was only a subtle scheme to obtain her consent to the sexual act, such would justify the award of damages pursuant to Art. 21, not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation. Such injury should have been committed in a manner contrary to morals, good customs or public policy. 2. Hermosisima vs. CA, 109 PHIL 629 Facts: Soledad Cagigas (complainant), filed a complaint for the acknowledgment of her child, Chris Hermosisima, as natural child of said petitioner, as well as for support of said chills and moral damages for alleged breach of promise. Petitioner admitted the paternity of the child and expressed willingness to support the latter but denied having ever promised to marry the complainant. Judgment was rendered declaring Chris as the natural daughter of the defendant and ordering defendant to pay actual, compensatory and moral damages. Issue: W/N moral damages are recoverable under our laws for breach of promise to marry. Held: It is the intent of the Congress not to sanction actions for breach of promise to marry. However, when the breach of promise to marry has been precipitated by seduction, moral damages may be recovered. There is no seduction in this case where the woman was willing to have intimate relations with a man. In such a case, the man cannot be said to be morally guilty of seduction. Where a woman, who was an insurance agent and former high school teacher, around 36 years of age and approximately 10 years older than the man overwhelmed by her love for a man approximately 10 years younger than her, had intimate relations with him, because she wanted to bind him by having a fruit of their engagement even before they has the benefit of clergy, it cannot be said that he is morally guilty of seduction. 3. Pe vs. Pe, 30 May 1962 Facts: A married man (Alfonso Pe), who was the adopted son of a relative of a girl’s father and who has the same family name as the girl, became very close to the girl and her family. In 1952, the man frequented the house of the girl (Lolita) on the pretext of desiring to teach her how to pray the rosary. The 2 eventually fell in love. In 1957, the Alfonso asked Lolita to date him. Lolita came to him and never came back. Lolita’s

parents, brothers and sisters now sue the defendant under Article 21.Issue: W/N the complaint is actionable. Held: The SC, applying Art. 21 ruled that indeed he, a married man, has seduced Lolita through an ingenious and tricky scheme to the extent of making her fall in love with him. Verily, he has committed and injury to Lolita’s family in a manner contrary to morals, good customs and public policy. 4. Wassmer vs. Velez, 12 SCRA 648 Facts: Francisco Velez and Beatriz Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the big day. On September 4, 1954, Velez left a note for his bride-to-be stating that their wedding should be postponed because the mother of Francisco opposes it. The next day, he sent another telegram telling Wassmer that Velez will return soon. Thereafter, Velez did not appear nor was he heard from again. Wassmer sued Velez for damages. Issue: W/N breach of promise to marry is an actionable wrong. Held: Mere breach of promise to marry is not actionable wrong, but to formally set a wedding and go through all the preparations therefore, only to walk out of it when the marriage is about to be solemnized is quite different. Obviously, it is contrary to good customs and the defendant consequently must be held answerable for damages in accordance with Article 21. 5. Sea Com vs. CA, 25 November 1999 Facts: Seacom is a corporation engaged in the business of selling and distributing agricultural machinery, products and equipment. Seacom and J II entered into a dealership agreement whereby Seacom appointed the former as exclusive dealer in the city and province of Iloilo and Capiz. In the course of the business relationship, JII allegedly incurred a balance of P18, 843 for unpaid deliveries and Seacom brought an action to recover said amount plus interest. JII alleged that as a dealer in Capiz, JII contracted to sell 24 units of power tillers to a group of farmers but Seacom taking advantage of the said information and in bad faith, went directly to the farmers and dealt with and sold 21 units thereby depriving JII of unrealized profits. Issue: W/N Seacom was in bad faith. Held: Yes. The principle of abuse of rights under Art. 19departs from the classical theory that ―he who uses a right injures no one‖. The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is abuse of rights even when the act is not illicit. Article 19 was intended to expand the concept of torts by granting adequate legal remedy for untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. Absence of good faith is essential to abuse of right. Good faith is an honest intention to abstain from taking any conscientious advantage of another. The elements of abuse of

rights under Art. 19, are:(1) there is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Note : A legal right ceases to exist when the law granting it has not been complied with. 6. Metrobank vs. Wong, 26 June 2001 Facts: Mindanao Grains (MG) applied for a credit accommodation with Metrobank (MB) to finance its rice and corn warehousing business. As a security for such credit accommodation, respondent executed a REM infavor of MB. Due to MG’s failure to pay the obligation, MB extra judicially foreclosed the property. MG requested to postpone the scheduled auction. MG paid P20,000 for the postponement of the auction sale. The same would be postponed for 60 days. Despite payment, the sheriff proceeded with the auction sale. A new TCT was issued in the name of MB. Respondent unaware of the foregoing developments applied for a credit accommodation with Producers Bank using as security the same TCT which contains the mortgage to MB. It was only then that he learned that his property was already foreclosed. Issue: W/N MB was in bad faith. Held: A bank must exercise its right to foreclose a mortgage upon the mortgagor’s failure to pay his obligation in accordance with the clear mandate of the law granting such right. Each and every requirement of the law must be complied with, lest, the valid exercise of the right would end. It must be remembered that the exercise of a right ends when the right disappears and it disappears when it is abused especially to prejudice others.

7. Alegui vs. CA, 6 March 2002 Facts: A residential apartment located in Mandaluyong City was formerly owned by Serafia real estate, acompany owned by the Barettos. For more than 20 years, unit no. 15 was leased by Serafia to Sps. Genguyon. In a letter, the tenants were informed that the assets of Serafiahad already been transferred to A.B. Baretto Enterprises. Apprehensive that they were about to be ejected, the tenants formed the organization called the Baretto Apartment Tenants Association. They elected Arlegui as VP and Lu as auditor. Believing that negotiations were still ongoing, the Genguyons were surprised to learn that the unit they were leasing had already been sold to Lu. Lu then sold it to Arlegui. Issue: W/N Lu and Arlegui were in bad faith. Held: While constructive trusts arising out of fraud or duress be an actionable wrong, SC declared herein that constructive trust may also arise out of abuse of confidence which is now also be an actionable wrong. Such that where officers of an association of tenants were tasked to negotiate the purchase of units leased by tenant – members, acted to purchase the units on themselves instead, violated the trust and confidence

reposed on them. The acts of Lu and Arlegui directly violate the principles enunciated in Art. 19. 8. Ramos vs. CA, 11 April 2002 Facts: Ramos was advised to undergo an operation for the removal of a stone in her gall bladder. By 7:30 A.M., Erlinda was already being prepared for operation. She was accompanied by Cruz, her sister-in-law who was the Dean of the College of Nursing at Capitol Medical Center. Her surgeon, Dr. Hosaka, arrived late (12:15 P.M.). Dr.Gutierrez (anesthesiologist) improperly intubated Erlinda.Dr. Hosaka instructed another doctor to intubate the patient. Erlinda was placed in a trendelenburg position – a position where the head of the patient is placed in a position lower than her feet. The operation did not go well. Erlinda stayed in the ICU for a month until she died. Petitioners filed with the RTC a civil case for damages. Issue: W/N private respondents were liable for damages. Held: Dr. Hosaka’s irresponsible conduct of arriving very late for the scheduled operation of Erlinda is violative notonly of his duty as a physician but also of Article 19. Her surgeon, Dr. Hosaka, arrived late (12:15 P.M.). Dr.Gutierrez (anesthesiologist) improperly intubated Erlinda. Dr. Hosaka instructed another doctor to intubate the patient. Erlinda was placed in a trendelenburg position – a position where the head of the patient is placed in a position lower than her feet. The operation did not go well. Erlinda stayed in the ICU for a month until she died. Petitioners filed with the RTC a civil case for damages. Issue: W/N private respondents were liable for damages. Held: Dr. Hosaka’s irresponsible conduct of arriving very late for the scheduled operation of Erlinda is violative notonly of his duty as a physician but also of Article 19. 9. Lui vs. Matillano, 27 May 2004 Facts: Lariosa was employed as laborer in a store owned by Ben and Kiao. Adjacent to the said store was another store owned by Kiao’s son, Lui. On October 1988,Lariosa was taken ill and was permitted to take the day off. He went to the house of his aunt (Matillano). Lario sareported for work the day after but Kiao told him that his employment was terminated. He was able to collect only his backwages. He withdrew money from his bank account and bought a cassette and sunglasses. Lariosa was accused of robbery – he allegedly stole money from Ben. Lui mauled Lariosa and forced the latter to admit the crime. Lui together with Pat. Leo Rojas went to the house of Sps. Matillano and took pants, floor mat and ladies shoes. They also went to Lariosa’s girlfriend and forcibly took the cassette and sunglasses. Lariosa executed a nun counseled confession where he stated that he stoleP40,00 to buy appliances, cassette etc. Lariosa sued Lui but the case was dismissed. Sps. Matillano sued Lui for damages. Issue: W/N petitioners were liable for damages. Held: Under Articles 19 and 32 in relation to Article 21, the dismissal of the complaint against petitioners are of no relevance to the civil complaint for damages filed by the

injured party against them. The action for damages may still proceed despite the dismissal of the criminal and administrative actions. 10. MWSS vs. Act Theater, 17 June 2004 Facts: 4 employees of Act Theater were apprehended by the member of the police force for allegedly tampering water meter. On account of the incident, the respondent’s water service connection was cut off. Act Theater filed a civil case against MWSS alleging that the latter acted arbitrarily in cutting off the respondent’s water service connection without prior notice. Due to lack of water, the health and sanitation of respondent’s surroundings and patrons were affected. Issue: W/N the act of MWSS in cutting off the respondent’s water service connection without prior notice is prejudicial to the latter justifying the award of damages under Article 19. Held: A right is a power, privilege or immunity guaranteed under the constitution, statute or decisional law, or recognized as a result of long usage, constitutive of a legally enforceable claim of one person against that other. However, the exercise of right is not without limitations. Having the right should not be confused with the manner by which such right to be exercised. Article 19of the CC precisely sets the norms for the exercise of one’s rights which is that it must be exercised in a manner in conformity with justice and give every person what is due him. 11. Nikko Hotel vs. Reyes, 28 February 2005 Facts: A formal party was held at Nikko Hotel. The party was for invitation only thrown for the hotel’s manager, a Japanese national. Then came a person (Roberto Reyes a.k.a. Amay Bisaya) who was clearly uninvited by the celebrant. The organizer, Ms. Lim, approached Reyes and told him to leave. According to Ms. Lim, she politely approached Reyes. According to Reyes, Ms. Lim humiliated him. Due to his traumatic experience, he filed a case for damages against Nikko hotel and Lim. Nikkohotel contended that pursuant to the doctrine of volentinon fit injuria, they cannot be made liable for damages as Reyes assumed the risk of being asked to leave as he was a gate crasher. Issue: W/N Nikko hotel should be held liable for damages. Held: The doctrine cannot be used as a shield against an actionable wrong since the parties herein, although having a right to ask a gate crasher from leaving the hotel was still under the obligation (as required by Articles 19 and21) to treat such person fairly in order not to expose him to unnecessary ridicule and shame.Article19 known to contain the principle of abuse of rights is not a panacea for all human hurts and social grievances. The object of this article is to set standards which must be observed not only in the exercise of one’s right but also in the performance of one’s duties. When this article is violated, an action for damages is proper under Articles 20 and 21. The common theme under Articles 19 and 21 is that the act complained of must be intentional.

Note : Reyes did not win in this case for pieces of evidence were presented that the hotel did not abuse its right. Doctrine of Volenti Non Fit Injuria – refers to self-inflicted injury, which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so. Damnum Absque Injuria – he who uses a right injure no one. Q: What is the reason behind Damnum Absque Injuria? A: For as long as the person is exercising his right provided under Article 19, he cannot be held liable. But if there is an abuse of the right, he can now be held liable.Example: Nuisance (can be abated judicially or extrajudicially)

II. ARTICLE 20 – CONTRARY TO LAW Francisco vs. CA, 29 November 1999 Facts: A. Francisco Realty of which Adalia Francisco isthe president entered into a land development and construction contract with Herby Construction represented by its president Jaime Ong, pursuant to a housing project financed by GSIS. Herby filed a complaint against Francisco and GSIS for the collection of unpaid balance under the project. They entered into a compromise agreement. In 1979, after an examination of the records of the GSIS, Ong discovered that Diaz and Francisco had executed 7 checks drawn against Insular Bank and payable to Herby. Ong claims that these checks were never delivered to Herby. Upon inquiry with Diaz, Ong learned that the GSIS gave Francisco the custody of the checks. Francisco forged the signature of Ong to makeit appear that Herby had indorsed the checks. Issue: W/N petitioners are liable for damages for forging the signature of Ong. Held: Forging the signature of another without his knowledge or consent for the purpose of indorsing a check and depositing the same under the forger’s account is contrary to law. Under the law, every person who contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same.

III. ARTICLE 21 – CONTRARY TO MORALS,GOOD CUSTOMS, PUBLIC POLICY Cases:1. Arafiles vs. Philippine Journalists, 25 March 2004 Facts: On April 14, 1987, while Morales, a reporter of People’s Journal was at the WPD, Ermelita, an employee of National Institute of Atmospheric Sciences (NIAS), lodged a

complaint against petitioner (NIAS director) for forcible abduction with rape and forcible abduction with attempted rape. Morales there upon personally interviewed Ermelita for the purpose of reporting the same in the nextissue of People’s Journal. He tried to contract Arafiles to verify Ermelita’s story but failed. Morales’ report appeared as a headline on People’s Journal. Petitioner instituted a complaint for damages arising there from. Issue: W/N Ara files may recover damages. Held: In order that a discreditable imputation to a public official be actionable, it must either be a false allegation of fact or a comment based on false supposition. If the comment is an expression of opinion based on established facts then it is immaterial that the opinion happens to be mistaken as long as it might be reasonably inferred from the facts. Here, the girl-victim gave her statement in the presence of the media who subsequently interviewed her. In actions for damages for libel, it is axiomatic that the published work alleged contain libelous material must be examined and viewed as a whole. The presentation of the news item which is the subject of petitioner’s complaint may have been in a sensational manner but it is not illegal per se. The newspapers must be given such leeway and tolerance to enable them to courageously perform their important role in our democracy. 2. Buňag vs. CA, 10 July 1992 Facts: Bunag brought Cirilo to a motel where she was raped. Bunag promised to marry Cirilo. They lived together as husband and wife for 21 days and filed their respective applications for a marriage license. After leaving Cirilo, Bunag filed an affidavit withdrawing his application for marriage license. A complaint for damages for alleged breach of promise to marry was filed by Cirilo against Bunag. Issue: W/N Cirilo is entitled to damages. Held: The acts of petitioner irremissibly constitute acts contrary to morals and good customs. These are grossly insensate and reprehensible transgressions which indisputably warrant and abundantly justify the award of moral and exemplary damages pursuant to Article 21 in relation to paragraphs 3 and 10 of Art. 2219, 2229 and 2234.

IV. ARTICLE 22 – ACCION IN REM VERSO – NOMISTAKE Principle of Unjust Enrichment – applied in Article 22(acquisition of something) and Article (one benefited thru act or event causing damage to another).

23,

Civil Code

Q: What is the unjust enrichment provision in property? A: Article 719 – regardless of the amount, you are required to give to the public officer and proper notice is given to the public. It is only after the lapse of 6 months when the finder could acquire ownership over it. Provisions on builder, planter sower – any expenses which involve necessary or useful expenses of the builder, planter or sower, he

has the right to retain it in his possession until being reimbursed by the owner, otherwise, tantamount to unjust enrichment. Negotiorum Gestio – (Art. 2144) anyone who voluntarily takes charge of the agency or management of the business of property of another without any knowledge of the latter shall continue doing the same until the termination of the neglect or abandonment of said property. Solutio Indebiti – the juridical relation which is created when something is received when there is no right to demand and it was unduly delivered through mistake, obligation to return it arises. Cases: 1. H.L. Carlos vs. Marina, 29 January 2004 Facts: Marina properties entered into a contract (construction of Phase 3 of Marina Bay Homes) with H.L. Carlos for 365 days. H.L. Carlos instituted a case for sumof money against Marina seeking the payment of P14,000,000. Issues: (1) W/N there was unjust enrichment; (2) W/NH.L. Carlos may recover a reasonable value of the services it rendered. Held: There is unjust enrichment under Article 22 when a person is unjustly benefited and such benefit is derived at the expense of or with damages to another. Under the principle of quantum meruit, a contractor is allowed to recover the reasonable value of the thing or service rendered despite the lack of written contract in order to avoid unjust enrichment. Quantum meruit means that inaction for work and labor, payment shall be made in such amount as the plaintiff reasonably deserves. To deny payment for a building almost completed and already occupied would be to permit unjust enrichment at the expense of the contractor. 2. Aguilar vs. CA, 7 July 2000 Facts: Aguilar entered into a lease agreement with Sps. Juguilon. Petitioner paid advance rentals. To comply with their obligations, the spouses vacated the second floor but they moved back because the spouses’ own building is under construction. Aguilar instituted an action for specific performance against the spouses. It prayed that the spouses be ordered to deliver to him the entire property which was the subject matter of the lease contract. Issue: W/N there was unjust enrichment. Held: It is but fair that the spouses made to pay a fair rental value for the use and occupation of a portion of the leased premises from the time they have returned to said building. It would be unjust enrichment for the private respondents to demand rent for

the entire leased premises when they themselves are at the same time occupying a portion thereof.

V. ARTICLE 24 – COURT’S PROTECTION OFTHE UNDERDOG Parens Patriae – sovereign power of the state in safeguarding persons under disability.

VI. ARTICLE 29 – PROOF BEYOND REASONABLE DOUBT ≠ PREPONDERANCE OFEVIDENCE; ACQUITTAL IN CRIMINAL ACTION≠ RELIEF FROM CIVIL LIABILITY EXC.: Criminal case does not exist. VII. INDEPENDENT CIVIL ACTION (ARTICLE 31) CIVIL OBLIGATION NOT ARISING FROM A FELONY Independent Civil Action – one brought distinctly and separately from the criminal case (Sec. 3 Rule 111, ROC) (A)ART. 32 – BREACH OF CONSTITUTIONALAND OTHER RIGHTS(B)ART. 33 – DEFAMATION, FRAUD, PHYSICAL INJURIES(C) ART. 34 – REFUSAL OR FAILURE OF CITY/ MUNICIPAL POLICE TO GIVE PROTECTION (D)ART. 2177 – QUASI DELICT OR CULPA – AQUILIANA Sarmiento & Limpin vs. CA, 27 December 2002 Facts: Limpin and Apostol doing business under the nameof Davao Libra Industrial Sales filed an application for an irrevocable domestic letter of credit with Associated Bank for the amount of P495K in favor of LS Parts Hardware for the purchase of scrap irons. The Bank issued a trust receipt. The defendants Limpin and Apostol failed to comply with their undertaking under the trust receipt. Defendants claim that they cannot be held liable as the scrap iron were lost when the vessel transporting them sunk. RTC and CA ruled against petitioners. Petitioners now contends that CA had departed from the applicable basic principle and procedure to the case embodying Associated Bank’s claim for the civil liability of P495K not having been expressly reserved by it, has been not only impliedly but in fact expressly instituted in criminal case. the applicable basic principle and procedure to the case embodying Associated Bank’s claim for the civil liability of P495K not having been expressly reserved by it, has been not only impliedly but in fact expressly instituted in criminal case. Issue: W/N the civil liability is deemed instituted Held : While a reading of Rule 111 shows that the offended party is required to make a reservation of his right to institute a separate civil action, juris prudence instructs that such reservation may not necessarily be express but may be implied which may be inferred not only from the acts of the offended party but also from acts other than those of the

latter. Nothing in the records at hand shows that private respondent ever attempted to enforce its right to recover civil liability during the prosecution of the criminal action against petitioners. VIII. ARTICLE 30 – CIVIL OBLIGATIONSARISING FROM CRIMINAL OFFENSE. ARTICLE 35 – RESERVATION OF PROSECUTIONPRESENTS EVIDENCE

CIVIL

ACTIONSHOULD

BE

MADE

BEFORE

THE

(A) ARTICLE 100, RPC, PERSON CRIMINALLYLIABLE IS ALSO CIVILLY LIABLEG.R.: Extinction of penal action does not carry extinction of civil action (Sec. 2, Rule 111, ROC) Reason: Quantum of evidence in civil case ≠ criminal case EXC.: If acquittal is based on a finding that the accused did not commit the criminal acts imputed to him (Westernvs. Salas) Western vs. Salas, 21 August 1997 Held: Where the acquittal is on a finding that the defendant did not commit the crime complained of, a civil action ―ex-delicto‖ cannot prosper. Acquittal in a criminal action bars the civil action arising there from where the judgment of acquittal holds that the accused did not commit the criminal acts imputed to him. (B) EFFECT OF DEATH OF THE ACCUSED TOTHE CIVIL LIABILITY (SEC. 4, RULE 111, ROC) Cases:1. People vs. Sendaydiego, 20 January 1978 Held: Death of the defendant during the appeal or before the judgment of conviction by the lower court become final and executory extinguished his criminal liability but his civil liability survives. (ABANDONED!) 2. People vs. Bayotas, 2 September 1994 Held: Death of the accused pending of his conviction extinguished his criminal liability as well as his civil liability based solely thereon. This means that if the civil action is one called ex delicto or arising from the crime, the death of the accused extinguishes both the criminal and civil aspect of the case. However, a civil action not arising from the crime such as those arising from other sources of obligation which is not a crime (such as law, contracts, quasi-contracts and delicts) the claim for civil liability survives notwithstanding the death of the accused. Where that civil action survives, an action for recovery from such may be pursued only by way of filing a separate civil action. This separate civil action may been forced either against the executor, administrator of the estate of the accused depending on the source of the obligation. Prescription will not lie against the filing of a separate civil action when the offended party opted to institute the civil action simultaneously with the criminal action and then later, the civil action was extinguished together with the criminal action after the death of the accused. The statute of

limitations on the civil liability is deemed interrupted during the pendency of the criminal case and conformably with provisions of Article 1155 of the CC that should avoid any apprehension on a possible privation of right by prescription. (C) SEC. 1, RULE 111, ROC – UNDER THE 1998 RULES ON CRIMPRO INSTITUTION OF CIVILACTION WITH CRIMINAL ACTION WASEXTENDED TO ARTICLES 32, 33, 34 AND 2177 OFTHE CC. UNDER THE 2000 REVISED RULES ONCRIMPRO, ONLY CIVIL LIABILITY ARISINGFROM OFFENSE CHARGED IS DEEMEDINSTITUTED WITH THE CRIMINAL CASE G.R.: Civil liability arising from the offense charged isdeemed instituted with the criminal action. EXC.:(1)Offended party waives civil action (2)Offended party reserves the right to institute its separately (3)Civil action instituted before criminal action. Note: The reservation of the right to institute separately the civilaction shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. Sarmiento vs. CA, 27 December 2002 Held: The reservation to file a separate civil action may not be necessarily be express but may be implied which may be inferred not only from the acts of the offended party. Failure of the court to make any pronouncement, favorable or unfavorable as to the civil liability of the accused amounts to a reservation of the right to have the civil liability litigated and determined in a separate action, for nowhere in the ROC is it provided that if the court fails to determine the civil liability, it becomes no longer enforceable. The appearance of the offended party in the criminal case through a private prosecutor may not per se be considered either as an implied election to have his claim for damages determined in said proceedings or a waiver of his right to have it determined separately. He must actually or actively intervene in the criminal proceedings

Missing page

Bigamy (Criminal Case) 2) Assuming that the Nullity is filed ahead, then go to elements of Bigamy. 3)Elements of Bigamy: Bigamy is committed by any married person (a) first valid marriage (b)not yet legally dissolve during the existence of the first marriage (c) accuse contracted second marriage (d) which has all the essential and formal requisites of a marriage Effect of First Marriage as a Nullity Q: If the first marriage is a nullity, will the Bigamy case; does it mean that the accused did not commit Bigamy?

it

affect

A: No, when the accused contracted the 2nd marriage, the first marriage is still existing (one of the elements) so if later on it will be declared void, it will not negate the fact that at the time he contracted the 2nd marriage, there already is bigamy since at the time of 2nd Marriage, the 1st marriage is yet to be declared as annulled. Therefore all elements of Bigamy is present, the nullity of the 1st marriage has no effect even if later on declare void. Effect of Second Marriage as a Nullity If the ground of declaration of nullity of 2nd marriage is absence of Marriage License, if the 2nd marriage is declared void, will it affect element of Bigamy (Element number 4), that for bigamy to exist 2nd marriage should also be valid, if there is no Marriage License, then the 4th element is not present hence there is PQ. Q: If the ground is psychological incapacity, will the answer be the same? A: No, Psychological Incapacity is not an essential or formal requisite of Marriage, although is a ground for declaration of Nullity of marriage. It would not have any effect in Bigamy case, even if later annulled because at the time 2nd marriage was contracted, it has all element of a valid marriage, it justhappen that psychological incapacity is a ground at present under the Family Code and such ground has noretroactive effect as to the decisions of Nullity, why? If the ground is PI, children born before the declaration of nullity will remain legitimate, but if the ground is lack of essential or formal requisites of marriage, children although born before the declaration of nullity they will be considered illegitimate, because the decision can be given a retroactive application. Example: Annulment of Contract on the ground of fraud (Civil). BP 22 (Criminal case) (2) Granting the civil case was filed ahead of criminal case.

(3) BP 22 is violated by issuing a check which has not been sufficiently funded.(4) if the contract will be annulled on the ground of fraud, will it affect the decision in BP 22, NO, because, in BP22, regardless of the reason for the bouncing of the check, what is material is that upon issuing, there is no fund from which is may be drawn, that is why there is no defense in BP 22. Q: Is the civil case in this instance a PQ in BP 22? A: No, because even if the contract is subsequently annulled the violation of the law has nothing to do with whether or not the contract was later on annulled. Ex: Estafa (Criminal Case) Annulment of Contract(Civil). Q: What is one of the important element in the commission of Estafa? A: Fraud, so if in the annulment case the existence of fraud had been established and the contract was annulled, it is then possible that it would have an effect upon theexistence of estafa because if it is prove that thecomplainant in the criminal case has committed fraud for the annulment of contract, then it follows that the defendant in criminal case did not commit estafa. Here there is a PQ. Judge Tamin, 1992 SC gave an exceptional case, that even if there are 2 civil case, there can be a PQ, this is an isolated case. Because as a general rule, for a PQ to exist there must be1 civil and 1 criminal. In this case, it involves a cadastral case and ejectment case, and the court ruled that even if there are 2 civil cases there is a PQ, because in this case, defendant in the ejectment case is claiming that the property where he is in possession belongs to him. If the cadastral proceeding will push through and will be rendered in his favor, then it will follow that he is not an illegal settler that the property really belongs to him. Umikting vs. CA, 2007 Here it involves an intra-corporate issue. There is an authority given by the corporation to a third person to act in behalf of the corp. The other case is an estafa case. SC held that the resolution of the issue raise in the intra-corporate dispute will determine the guilt or innocence of respondent for the crime of estafa filed against him. One of the element of the crime of estafa is with abuse of confidence under Art 315 par 1(b), is a demand made by the offended party to the offender. Under the circumstance since the allege offended party, the validity of the demand to deliver the subject vehicle rest upon the authority of the person making such demand. Here this is a special kind of estafa, where one of the elements is the authority of the person who made the demand, it just that in the civil case the issue is whether or not there was really an authority given to the person who made the demand. So if it can be shown that there was really an authority then it follows that there is no estafa committed. Here there is also a PQ.

PERSONS

I. CLASSIFICATION OF PERSONS (A) Natural Person(B) Juridical Person Q: What if in the problem, the question would be multiple choice and you will be ask to identify who is a juridical person. Note: Co-ownership does not have a juridical personality, a partnership does. a. Coownership b. Partnership c. Credit Union d. Department of Justice e. Office of the Ombudsman f. Local Gov’t of Kalookan II. ARTICLE 37 – JURIDICAL CAPACITY ≠CAPACITY TO ACT Juridical person, has its own juridical personality. Juridical Capacity is different from capacity to act. Juridical Capacity– fitness to be the subject of legal relations. Presupposes personality and is inseparable from it. Capacity to Act – power to do or carry out acts that will have juridical effect. Can be acquired or may be lost by a person in varying degrees. Q: True or False, a person that has juridical capacity has capacity to act? A: False, because even if one has juridical capacity, there may be certain restriction in ones capacity to act)Example: Buboy and Bell has juridical capacity but they do not have the capacity to take the BAR exam, if their educational attainment restrict their capacity, because they may be college graduate but not a law graduate. Q: True of False: person with a capacity to act, has a juridical capacity? A: True, because if one has the capacity to act it followsthat the said person can enter into any juridicalrelationship, who may be a natural or juridical person that has a juridical capacity. III. ARTICLES 38 AND 39 – RESTRICTIONS ONCAPACITY TO ACTIncapacity – is the restriction of a person’s capacity to act. Art 38-39, restriction on capacity to act, we do not apply the Expression Unios Rule. There are certain restriction which might not appear in the enumeration but may still be considered as a restriction to once capacity to act. So if one desires to practice the profession of law in the Philippines, but he is not a Filipino citizen, his nationality would be considered as a restriction on his capacity to practice law in the Phil.

2 Classes of Restriction / Incapacity: (1) Natural incapacity: (a) Due to lack of development – minority (b) Due to disease – insanity, deaf-mute, impotency (2) Civil incapacity: (a) Due to crime – civil interdiction (b) Due to public policy – family relations, domicile, Nationality, insolvency, absence IV. ARTICLE 40 – CIVIL PERSONALITYARTICLE 41Article 40 and 41 Birth determines Personality. But a conceived child should be considered born for all purposes favorable to it. De Jesus vs. Syquia & Geluz, 58 PHIL 886 The case of De Jesus has something to do with a donation to a conceived child. In the latter case, it involves a claim for damages for an aborted child. In the former, the donation as considered as valid and binding to the conceive child, even if the child was not yet born. Why? Take note of the phrase, shall be considered born (even if still conceive), for purposes favorable to it. The word favorable is important, because even if the child still inside the womb, there is an act performed by a third person in favor of the conceive child, but that act is notfavorable to the conceived child, the provisional personality being given to the conceived child will not be applicable. Art 40, apply only if the act performed by the third person is favorable. Ex: in the will of the biological father, it allege that he is acknowledging the child being conceive by his longtime live in partner Maria, he will donate his house and lot to the baby being conceived by Maria. The act of acknowledgment and donation is both favorable. But what if the biological father would state that all his obligation will also be assumed by my child with Maria, the same can no longer be considered as favorable, hence the provisional personality of the child will no longer be applicable to the conceive child. That presumptive personality should become conclusive later on and the law gives the requirement for it to be conclusive and the law requires that ―if the child had an intra-uterine life of less than 7 months, it should be alive for at least 24 hours from the time of its complete delivery, but if the child has intra-uterine life of 7 months or more, it need not survive for 24 hrs. what is important is that it is alive from the time it is completely delivered. Going back to the case of baby of Maria, can she claim the inheritance or demand for support after the birth of the child, yes, provided that, applying Art 41, ―if the child is less than 7 month, it survived for 24 hrs, because if it did not survive even if there is a donation in a will, the child did not acquire juridical capacity,

hence legally speaking has never become a natural person. But if the child survives for 24 hrs, then after lapse of 24 hrs he died, can Maria still recover the donation? YES, because the 24 hrs requirement has been complied with, assuming it had less than 7 months of intra-uterine life, thus legally speaking when it was born it was considered as a natural person, the mother being a compulsory claim, has theright to claim the donation given to the child. But if the child is 7 months or more, then after delivery it cried, then died, Maria, may still get the donation because the child need not live for at least 24hrs.Assuming the problem given is so general, and it did not state how old is the child when it was delivered, you must make a qualification, provided that the act is involve is favorable to the conceive child, otherwise no need to make a qualification, in that sense, the conceived child never had a presumptive personality to speak of. Presumptive personality pertains only to a conceived child. It does not apply to corporation about to be registered, the law is very clear; it pertains only to aconceived child. Limjoco vs. Estate of Fragante, 1948 SC held that the estate of the deceased is a juridical person. So that in succession although the definition of succession includes transfer of rights property and obligation, strictly speaking the obligation is not being transferred. Why? Because, prior to partition, the creditors will be the to be settled first, they can sue the estate because it is a considered a juridical person. ARTICLE 43 – PRESUMPTION ONSURVIVORSHIP / SIMULTANEOUS DEATH.FACTS ARE UNKNOWN – APPLIES WHENEVER PARTIES WHO DIED ARE CALLED TO SUCCEEDEACH OTHER. OTHERWISE, SEC. 3 PAR JJ,RULE 131 OF THE ROC ON DISPUTABLEPRE SUMPTIONS APPLIES. Note: See Rule 131, Sec. 5 (KK), ROC Q: Assuming that Juan and maria got drowned in a flood cause by overflowing of the dam, who was the first one who perished? Will article 43 be applied? A: No, even if they have been living together as husband and wife for more than 10 years, but not legally married, he cannot apply Article 43 because this article will only apply if people involve is called to succeed to each other, that why this should be connected to the rules on succession as to who is considered as a compulsory heir. If live in partner, no application. Presumption on survivorship involves person who died are called to succeed to each other legally. Q: What if in the will the name is written as voluntary heir? A: Instituted heir but not compulsory heir, so still not applicable. Rule 131 Sec 3 and 5

Gives the presumption as to who died ahead of whom. In the bar exam, stick to this presumption. Domicile and Residence In Civil Law Domicile – there is an element of permanence, place where one intends to return Residence– temporary in character In Political Law (Election Law in particular) The distinction has disappeared. FAMILY CODE – EFFECTIVITY August 3, 1988 Under Article 256, the Family Code may be given retroactive effect, provided that it will not affect vested rights. One might encounter a problem in the bar exam wherein, if the date is indicated, that serves a warning whether the family code or the civil code would apply. If there is no date, then the new civil code would apply.Sometimes the situation would fall under the phrase ―provided that it will not affect vested rights‖ – Case of Ty vs. CA. Marriage Article 1 (memorize) Q: It says there that a contract of marriage is a special contract. Why special? A: Because in an ordinary contract, there is a meeting of the mind but at the same time parties have the discretion to enter into any kind of stipulation. But in a contract of marriage parties do not have the discretion to enter into any kind of stipulation. Acebedo vs. Aroceros An instrument entitled kasunduan executed by the husband and the wife was declared null and void for being against public policy. Parties are not allowed to stipulate for themselves their separation and allow the other party to marry of the other in the absence of judicial intervention. That is an agreement that is against the law. the definition of Article1 (FC), is explicit, its only during an ante-nuptial agreement that a party can enter into a stipulation as to what kind of property relationship would govern the properties that they would acquire during their marriage. But when it comes to right and obligations, they are imposed by law not by the parties to a marriage. Q: A, felt like he likes more to play with dolls than robots, so after taking the bar, A went to Hongkong and when he return back in the Philippines, he completely change. A married B (a guy also), after several attempt they were not blessed with a child, later B found out that A is a guy. Is the marriage considered valid? Would the marriage be voidable on the ground of fraud? Can that be considered fraud in the first place? A: Take note that the enumeration of fraud in the FC is exclusive, so cannot fall under Fraud? But can it be use as a ground for declaration of nullity of marriage? YES, on the ground of

“legal capacity” ---marriage is a union between a man and a woman. Silverio vs. Republic Has something to do with a guy who later on became a woman. He had a sexual transplant. He filed a petition for correction of entry in his birth certificate he wants to change his name and his sex to a female. SC held that entry in the birth certificate should refer to data at the time of birth not to any event which would later transpire. The trial judge erroneously grants the petition to change the sex of the petitioner, because at the time of his birth petitioner is a man not a woman. There is a case, where a girl, who had a sexual transplant and change her genital organ into a penis. However until now she remains to have 2 ovaries and 1uterus, so notwithstanding her transplant, they cannot together with her wife, produce a child. So they decided to have an artificial insemination, wherein she herself got impregnated. If in case, a problem in the bar would be ask whether the marriage is valid, just stick with Article 1,a marriage is a union between a man and a woman. Marriage with the same sex cannot be considered valid here in the Phil, unless the definition would be amended. Another Component of Legal Capacity – Age Under the Spanish Civil Code, the marrying age is still14 for female, 16 for male. Under Canon Law, 14 for female 16 for male. Assuming that one decided to solemnize the marriage of below 18 since that is the marrying age under the Canon Law; remember that Canon Law would always submit to Civil Law. Parental Consent between the ages – 18 to 21 , absence of which will only makes the marriage voidable. Parental Advice between the ages – 21 to 25 , absence of which would not make the validity of marriage. Q: Is there a contradiction as to age of 18-21 /21 -25? A: No, What is the reason? Because in application for marriage, one cannot consider himself to be exactly 21, remember Art 13, 1 day is equals to 24 hours, and in every second that passes, one gets older, and that’s the reason why the law states 18-21 / 21-25. That is why in our birth certificate we could see the hour and time of our birth, this means for instance that we are 21 years of age at that particular hour and minute and after that lapse, we get older by another second or minute for that matter. Garcia Recio vs. Recio The absence of certificate of legal capacity is merely an irregularity in complying with the formal requirement of procuring a marriage. An irregularity which will not affect the validity of the marriage.

Why? Because it’s different if what is absent is the marriage licenses not the certificate of legal capacity. It is different however, if one of the contracting parties is a foreigner, because a foreigner who contracts marriage here in the Philippines would not be able to obtain a marriage license. So in lieu of the marriage license, the foreigner would have to secure a certificate from his embassy that he has the capacity to contract a marriage. The same thing with Filipino who would contract marriage abroad, they did not have to secure the license from the Phil, the certificate coming from the Phil Embassy suffice. Consent Freely Given Another essential requisite of marriage, absence of which would make the marriage void ab intio. (Vices of Consent) Note:if in the bar the question has something to do with the vices of consent in marriage, answer the question in relation to contracts in general Legal Capacity and Consent freely given are the essential elements. Article 15 in relation to Article 17, the former speaks of nationality theory, if one is going to marry abroad, one has to make sure, that the essential requirements as to Legal Capacity e.g. age and sex, and consent freely given, the law that governs should be the Family Code for Filipino where ever they may be found. As to the formal requisites, the authority of the solemnizing officer, marriage license, marriage ceremony, is connecting with article 17 of the Civil Code, lex loci celebrationis, extrinsic elements. So if one would marry abroad, if in that country, marriage license is not an element, the marriage would be valid here in the Phil. Applying Article 17 of the Civil Code, in relation to the Family Code. Because it does not fall under any of the prohibited marriages, in the same way when we speak of marriage by Proxy. Authority of Solemnizing solemnize marriage.

Officer

Memorize:

persons who are given the authority to

Q: Mayor of Manila celebrated the marriage August 2, 1998, is the marriage valid? A: Remember, if there’s a date, it serves a warning because, the law that is applicable would either be the Civil Code or the Family Code. Yes, under the Civil Code the Mayor is one of those persons authorize to celebrate marriage. That authority is how ever taken away from him by the Family Code. Q: What if the marriage is celebrated on Jan. 1, 1991, is the marriage valid? A: No, remember that the Local Government Code took effect one year after its promulgation on Jan. 1, 1991,hence effective on Jan 1, 1992, that is the only time when the authority of the Mayor was given back to solemnize marriage. Time frame: August 3 1988 – Dec 31, 1991, a Mayor has yet no authority to solemnize marriage.

Q: What if the parties believe in good faith that the Mayor had the authority to solemnize in marriage, is the marriage valid? A: No, ignorance of the law excuses no one in compliance therewith. In the Family Code, when we refer to circumstance of Good Faith, it should refer to a mistake of Fact not a mistake of law. Remember that as long as the state has enacted a law, even if one did not read it, ignorance thereto excuses no one from complying therewith, and since under the Family Code, a Mayor is not given the authority to solemnized marriage, good faith of the contracting parties would not make the marriage valid. Laxamana vs. Baltazar, 92 PHIL 32Q: What if the Vice-Mayor solemnized the marriage is it valid? A: If the Vice-Mayor is acting as a Mayor the marriage is valid. So make a qualification. So otherwise, if he is acting in his capacity as a Vice-Mayor, the marriage is null and void. Because a Vice mayor is not given the authority under the Local Government Code to solemnized Marriage. Q: Justice Zenaida Elipanio, celebrated the marriage of A and B, is the marriage valid? A: No, take note that Justice Zenaida Elipanio is not one of the justices of the Regular Court, but only of the Office of the court Administrator, but only with a title of the justice. Even if she assume the position of the justice, she is not one of those authorize to solemnize marriage because only the justices of the SC, CA, CTA, Sandiganbayan, RTC, which are allowed to solemnized marriage. Another example, the Secretary of DOJ, we address him as Justice Raul Gonzales but he is not a justice or even a member of the Judiciary but he holds a title of a justice. Likewise Labor Arbiters, are address as judge, because their position is co-equal with judges of RTC, however they still do not fall within the enumeration and therefore any marriage celebrated by them is null and void. Note: so find out who are incumbent at present and as to known Mayor of Metropolitan Manila. Navarro vs. Judge Domagtoy, 19 July 1996 Involves a judge, solemnizing a marriage outside his territorial jurisdiction. According to this ruling, that it is simply considered as an irregularity. Q: What if it is the Mayor who celebrates marriageoutside his territorial jurisdiction? A: Apply by analogy the ruling in Navarro, because so far there is yet no Supreme Court Ruling regarding that matter.(Mam’s opinon: she does not agree with the ruling, it would have been better daw if the reason given by the ponente is that the parties believe in Good Faith, that a judge can celebrate marriage even outside his territorial jurisdiction, because the jurisdiction of a judge can only be known by lawyers or law students somehow. But for purposes of the bar, stick with ruling in Navarro case, that it is merely considered as an irregularity.

Priest, rabbi, imam, ministers of the Church Example: Mike Velarde of El Shaddai does not have the authority to solemnize marriage. He is still a catholic. El Shaddai, is recognized group of the Roman Catholic and that he is not a clergy merely that head of such group. Hence a marriage solemnized by him is null and void because he is not a priest Ship Captain, Airplane chief, military commander, general consul, vice consul Immediately connect to marriage under exceptional character, why? Because this people are given the authority in cases where time is of the essence. One of the parties is in articulo mortis, which is the common factor. For them to be given the authority, make sure that the elements are all present; otherwise if one is absent ignorance of the law excuses no one from compliance therewith, good faith of the contracting parties would not make the marriage valid. Example: marriage celebrated by a ship captain not on voyage between parties where in not one of them is at the point of death, void. So with a vice consul who returns here in the Phil, and solemnized a marriage here, is void. As in the case of the Military Commander, take note that there must be no Chaplain, if there is then it is the chaplain that is given the authority not the Military Commander. Q: What if in the airplane, someone is in articulo mortis and there is a priest, who should solemnized? A: Priest, under any circumstance has the authority to solemnize for as long as they have such license to celebrate marriage, the presence of the ship captain or airship captain does not remove such authority from the priest. The authority of the captains are invoke only in cases where there are no other person authorize by law to solemnized marriage are present. Q: Marriage solemnized by a consul between one of the parties is a Filipino and foreigner is this valid? A: 2 OPTIONS: (1)not valid, focus on the provision of the family code, that a consul is only given authority to solemnized in the place where he is appointed as a consul and between Filipino citizen (2) valid, if the argument is base under article 17 lexloci celebracionis. Remember that the authority to solemnized marriage is merely a formal element, and under Article 17, lex loci celebracionis, referring to extrinsic elements, which is also known as a formal element, if in the country where the marriage was celebrated, and the consul is assigned, and the law of the country gives the consul the authority to solemnized such marriage, if it is valid in that country and it not prohibited here, it is valid in the Philippines. Good Faith refers only to Mistake of Fact and not Law because of the presence of Article 3, ignorance of the law excuse no one.

Q: A, an ex-seminarian, frustrated seminarian, volunteered as a sacristan, one day, a marriage was about to be celebrated, the pries was not available so he ask A to call another priest. A pretended to be assistant priest and celebrated the marriage, is the marriage valid? A: YES, remember that a priest is one of those authorized to solemnized marriage, so if the parties believe in good faith that he is the priest, Valid; this involves a mistake of fact. But if in the problem Justice Raul Gonzales celebrated the marriage, it is not valid, because he is not authorized by law to do so. Even if the parties are in good faith, but since Justice Gonzales is not one of those enumerated under the law that has the authority to solemnized marriage, the marriage is not valid. (Mistake of law) Marriage License Note: How to compute the life existence of Marriage license. It should be 120 days counted from date of issuance. Why? Even if a document is presented by the contracting parties before the solemnizing officer, and the marriage is celebrated and it would appear that the 120days had lapse, the marriage is void ab initio, ground: lack of marriage license. There is no extension of such lifetime. It is advisable to file application at least 2 or 3weeks before the intended day of the marriage, because the posting is only for 10 days. In cases where the 120 days had lapse and a marriage has been contracted, it is void, so if the civil registrar refuse to record the same because of such fact, then it would be better for the parties to secure first another marriage license and then for the priest to solemnized the marriage again even if the canon law prohibits another solemnization between the same parties, the civil code must be upheld. Automatic upon lapse of 120 days, marriage license no longer effective Case: Cosca v. Palaypayon The judge, solemnize a marriage without a marriage license, what the parties merely did is that they executed an affidavit of cohabitation. Judge failed to realized, that, though the parties had been cohabiting for 6years, at the time they did so, they were still minors. But in this case, the marriage was not declared void since the same was not the issue at bar. The judge was reprimanded Following the doctrine in Minal, the impediment should not be existing for at least 5 years, it should be continuous. Case: Seguia v. Cardenas The certification issued by the LCR, must categorically state, that the particular entry, document could not be found in their office despite diligent search In this case, there was no search conducted, the individual involve merely presumed that there’s no such document that exist. So in the case of marriage license to be as proof, ask in the LCR a certification, since in the marriage contract itself, it states there the marriage license no, date of issue. So to determine if there really is a marriage license, go to the LCR that issued the marriage license. So if there is no such marriage license in their file list, then ask for certification providing that LCR exerted effort to look for the marriage license

Note: Memorize Marriage of Exceptional Character Question: Why are they called marriages of Exceptional Character? Because, the law considers the validity of the marriage even if it was celebrated without a marriage license. 1. Articulo mortis Case of Soriano: after the celebration of the marriage without marriage license between one of the parties who was really sick which later on survived, will that affect the validity of the marriage? NO, notwithstanding the survival of the party at the point of death, it would not make the marriage void. What if celebrated between a living and decease, is the marriage valid? – it must be considered that a decease has no longer juridical capacity and no longer consider a natural person. A dead person cannot give a consent freely given. 2. In remote place Reason: contracting parties cannot go to the office of LCR, to file an application of marriage license. But what is ironical in this case is that it is the duty of the solemnizing officer, that he executes an affidavit stating that before he solemnize the marriage he makes sure to find out whether the contracting parties have the capacity, which affidavit should be attach to the marriage contract which should be filed before the LCR where the marriage took place. Ironic because of the priest has the access to the LCR, then how come that the parties could claim that they are in the remote place 3. Marriage in Articulo Mortis in a Ship or a Plane Connect this to people who had the specialauthority under exceptional cases to solemni zed themarriage (Airplane Chief and a Ship Captain) 4. Marriage in Articulo Mortis within the zone of Military Operation. Ex: A was diagnosed to have only 10 more days to live, can a marriage be validly celebrated if a person was diagnosed to die after 10 days, can we consider him in articulo mortis? NO, because, for a person to be considered in articulo mortis, consider the actual status of the person at the time the marriage is actually being celebrated. The fact that he was given only 10 days to live as presumed by the doctor, cannot deemed to be one in a condition of articulo mortis. 5. Ethnic Cultural Communities Examples: ifugao, aetas, kalinga 6. Cohabitation For 5 Years To be considered as marriage under exceptional character, the impediment should not be existing exclusively, continuously, for 5 years. Impediment– this is construed in its general term, embracing all kinds of impediment including minority.

Example: both at 16 years old the parties started cohabiting with one another for 5 years, can their marriage be considered under exceptional character as cohabitation for 5 years? Case of Borja-Manzano v. Judge Sanchez, an administrative matter, where the SC simply stated, the circumstances which should be considered in an affidavit of cohabitation, and one of them ―there is no impediment existing at the time the marriage is celebrated‖. Does this mean that the Borja Doctrine replaced the doctrine in Ninal Case? (Opinion of maam – it did not abandon), but what should be considered is the underlying reason why cohabitation for 5 years is deemed marriage under exceptional character, which is…. The Philippine law does not accept a common law relationship, but would like to protect the rights of common law spouses, (that’s why the prohibition for donation between husband and wife is also applicable to them, The Philippine law does not accept a common law relationship, but would like to protect the rights of common law spouses, (that’s why the prohibition for donation between husband and wife is also applicable to them, Art 147 and 148, also tells us the property relation of common law spouse, which is Co-ownership, however despite all of this the Family Code would not tolerate any kind of illicit relationship, so if we would conclude that Manzano abandon the ruling in Ninal, it would defeat the purpose of cohabitation. This one is considered as marriage under exceptional character (reason) to encourage common law spouses to legitimize their union. Q: What if the question is that A and B for the first 2 years had been living together for with impediment but for the last 3 years until the celebration of their marriage, there was no impediment, how would you answer this? A: (Option 1) stick to the ruling in Ninal, always invoking the underlying reason behind the provision. (Option 2) invoke the Manzano ruling, where in if we would try to analyze it, the statement was more of an orbiter, because it was not the main issue, it merely refers that one of the things included in the affidavit of cohabitation, and one of them is that there is no impediment existing at the time of solemnization of marriage. Q: If the solemnizing officer learned that a day before the marriage, the parties just applied for a marriage license, does the officer have the right to refuse to solemnize their marriage? A: No, because, they are not duty bound to determine whether license has been really issued. If application of marriage license was made on the same day the marriage was solemnize, there was merely an irregularity and the person involved in the irregularity would be sanctioned for that, because there should be a 10 day public ation requirement before a marriage license can be issued. Marriage Ceremony Q: If the Rector of San Sebastian celebrates the marriage in a place outside the church, is the marriage valid?

A: Yes, even if the Family Code states, inside the private chamber or church, when it comes to the place where the marriage would be held, it can be change, upon their quest of the contracting parties. When it comes to location the place can be change, but what is importance in marriage ceremony is that ―the parties personally in front of the officer and exchange their vows or I dos. In that sense, a marriage is a consensual contract base on perfection. The absence of a marriage contract will not negate the existence of a celebrated marriage. In the absence of the witnesses, who are the sponsor, the solemnizing officer may testify that the marriage was celebrated; not withstanding that one of the parties should hide the marriage contract. In remedial law, text massaging is already accepted as evidence . The question is if the marriage was celebrated through the use of an internet “international conference or video conference is the marriage valid? At the time the family Code was enacted, there is yet to cellphones and internet, applying the rule on statutory construction, in the interpretation of the provision, one rule is that take into consideration the circumstances when the law was enacted. When the Family Code was enacted, the framers included the marriage ceremony, personal appearance and declaration of consent, before the solemnizing officer, that means that they should be physically present in front of the solemnizing officer. Loria Case There was failure on the part of one of the parties to affix their signature on the marriage contract; does it mean that there is no marriage celebrated? NO, marriage is a consensual contract not a formal contract, even if it is not signed it will not negate the celebration of a valid marriage. Intestate Estate of Del Gado Under Rule 131, Sec. 3 par. 9 (a) one of the disputable presumptions unless contradicted, ―man and woman deporting themselves as husband and wife entered into a lawful of contract of marriage, absence of marriage contract is not a proof that no marriage took place, once presumption arises other evidence may be presented. There is always a presumption that when a marriage is celebrated it is presumed to be valid unless declare otherwise. As we see it, witnesses are not part of requisites 2witnesses; the authority of solemnizing officer is a forma requisite, if the marriage is celebrated without witnesses is this valid? YES, because it is neither a formal requisite nor an essential requisite. We cannot say that it forms part of the marriage ceremony because, marriage ceremony refers only to the physical presence of the parties before the solemnizing officer at the time of the exchange of their I do’s. Absence of witnesses is merely an irregularity which will not affect the validity of the marriage. Eugenio vs. Velez

The controversy involves the corpse of the decease, as between the legitimate and common law spouse. SC held the word spouse in article 144 of the Civil Code; refer to a law fully wedded spouse. Philippine law does not recognize common law marriage. Marriage Celebrated Abroad Connect Article 15, 17, Art 35 parg 1, 4, 5 6, 36, 37, 28.Lex Loci Celebrationis if it is valid there, it is valid here and it is not prohibited here, it will be valid in the Philippines, provided that it only involves as to the formal requisites (authority of officer, marriage license and marriage ceremony) But if it involves legal capacity, consent freely given, if it valid there not here, it will not be valid in the Philippines. Example: If a Filipino married to same sex abroad, that isan essential element ―legal capacity‖ we do not apply Art17 but Art 15 of the Civil Code in relation to the Family Code. Note: If it involves the issue of validity of marriage, enumerate the essential and formal requisites. If there is the presence of all the essential and formal requisites and it does not fall under the prohibited marriage, it is valid. After considering if there is a ground of nullity, go now to annulment. Before doing so, remember the prescriptive period of annulment, if it has prescribed there is no need to go thru the grounds of annulment. Prescriptive period, usually 5 years except, insanity and lack of parental consent, the prescriptive period of the parent is different but for the parties it is still 5 years. RIGHTS AND OBLIGATIONSA. To Live Together (Art. 68) Illusorio vs. Illusorio-Buildner The parties at the time that the case was filed and the case was decided the husband was still alive, and it was the wife who file a case for mandatory injunction against the husband. It must be remembered, that a marriage is a special contract, and what makes it special is that the parties cannot stipulate on the terms and conditions and unlike in an ordinary contract, wherein in case there is a breach of the terms, the remedy would be specific performance or rescission. Here, if one of the spouses would not like to live with other spouse, is it proper to file a petition for mandatory injunction, asking the court to compel the husband directing him to live with the wife? No, SC held that the living together is something personal between the husband and the wife, its also the same thing with respect to other obligation, (to remain faithful, mutual respect), this obligation although imposed by law, the court cannot intervene and compel the other spouse to be bound by the same. The case was dismissed. No mandatory injunction can be filed in order to compel the spouse to live with one another. Q: Does it mean that in this case if the other spouse refuse, is there no other recourse? A: NO, there are sanctions for this breach of obligation.(1)The one who leaves the conjugal dwelling shall not be entitled for support(2)Aggrieved party may apply for receivership, authority with sole administrator of the conjugal partnership or

absolute community(3)File a petition for separation, or dissolution or conjugal partnership or community property. Arroyo vs. Vasques de Arroyo Here the SC gave an exception, when the spouse will be allowed not to continue living with the other spouse. In this case, every time the husband would have asexual intercourse with his wife, he would demand barbaric means of having sex. If there is already a physical violence involve, the law allows the spouse to leave the conjugal dwelling and that would not amount to abandonment..In this case, this abandonment would not constitute as a ground for legal separation, only when there is a bad faith in the abandonment which is a ground. In this case, SC allows it as an excuse for the wife not fulfill her obligation to live with his husband Even in the Family Code Art 69, as when the spouses do not agree where to live, then the court would intervene, but in reality the Family court would still throw the issue back at the parties because it is a personal decision on their part. Case when one is allowed to live separately from the spouse: (1) One should live abroad in the practice of profession/ compelling reason (2) Marital Rape B. Mutual Love, Respect and Fidelity Sanction for Breach: 1. Ground for Legal Separation: Under the 1950 Civil Code, there is only 2 grounds, attempt against the life and adultery and concubinage. Now, Art. 55 (8), FC – ―Sexual Infidelity or perversion. This is favorable to women, because it is easier a woman for adultery and difficult for a man to be convicted of concubinage. 2. Incapacity to Succeed 3. Disinheritance 4. Apply to court for Relief (Art 72, FC) – refers for damages. C. Mutual Help and Support In relation to support, the support should not only belimited to financial support, but also taking care of the family. Pelayo vs. Lauron Here, the wife became pregnant and it was the in-laws who accompanied her to the hospital, and the husband was not there. The in-laws were asked to pay for the medical bill which was refuse. SC said, do not have the obligation to pay for the hospital bill but it is the husband. Spouses are the first in the list who have the obligation to give support. D. Joint Management of the Household Jader Manalo vs. Sps. Camaisa This one should be connected with the property relationship of the spouse, if the property relationship is one of conjugal partnership or absolute community and there is disposition in the property that forms part thereof, under the FC the requirement is that there must

be a written consent of the other spouse. Absence of which, then the sale would be void. Note / tips:that it is possible in the bar a date might be given. Remember the effectivity of the FC is August 3, 1988. Why? If the transaction took place before the effectivity of the Family Code, and there is no written consent, what is the status of the contract of sale? Under the 1950 Civil Code, the contract of sale is merely voidable not void ab initio as when it happen after the effectivity of FC. Refer to Civil code Art 166, compare to provision of the Family Code as to the disposition of property that forms part of the CP or AC, and which is stated in this ruling. E. Right to Exercise Legitimate Profession There is no need for consent. Spouse not in agreement of the profession may object thereto only on valid serious and moral grounds. Ayala Investment vs. CA Here, it should still be connected with the issue of property relationship, because it is a question of, if one of the spouses wanted to obtain a loan, Q: Is there a need to secure first the consent of the other spouse? A: No, the written consent only involves the disposition of property not when in cases of securing a loan. Then if this loan would redound to the benefit of the family, then the creditor could seek relief from the CP or AC, in this case if the CP or AC would not be oblige to pay the creditor it would amount to unjust enrichment. It is the creditor’s burden to prove that the same redounded to the benefit of the family. That is the reason why at present, it is their practice that in securing a loan the other spouse is also required to affix his signature although the same is not required by law. TITLE VTHE FAMILY Q: Who are the members of the family? (Memorize) Art. 150. Family relations include those: (1) Between husband and wife;(2) Between parents and children;(3) Among brothers and sisters, whether of the full or half-blood. Reason: Knowledge of the members of the family will help you answer the question whether or not the family home is exempted from attachment. Under the Constitution, the State would like to protect the interest of the members of the family by making sure that the

family has a place where they can stay so in relation to family home, the family home is generally exempted from attachment provided that only members of the family are the one actually in possession of the family home. Q: Is sister-in-law or daughter-in-law member of family? A: SC ruled NO! So if sila lang ang nakitira sa familyhome pedeng iattach.. Q: Is Caregiver or yaya member of family? A: Kahit na sa Filipino setting we do not consider a yaya an ordinary yaya but treat them as member of the family. BUT remember that the enumeration under the FC is EXCLUSIVE..expressio unius rule ..if it is not included in the enumeration, it is deemed excluded..therefore if none of them is in possession of the family home..it is subject for attachment.. EARNEST EFFORT TO COMPROMISEArt. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. These rules shall not apply to cases which may not be the subject of compromise under the Civil Code. Now connect it to your remedial law..This refers to cases involving members of the family and SC said that before the court can acquire jurisdiction over it there should be a proof that earnest effort to compromise was entered into.. or the parties tried to compromise..ang problema nga lang in reality and based on experience if it is conflict between members of the family, they seldom compromise.. Although that is a requirement under remedial law and even under the FC.. Alvarez vs. Ramirez Marital Disqualification Rule(MDR). Sa remedial law..di ka pede maging witness kc asawa mo un.. pedeng maging favorable kc sa kanya..SC ruled that the marital disqualification rule is applicable only if walang strained relationship between the husband and the wife. But what happened in this case? sinunog ng lalaki ung bahay ng kapatid nya na alam nya na ung asawa nya nasa loob ng bahay.. SC ruled that it is obvious.. strained na ung relationship.. gusto ng ihawin ng asawa ung babae..bakit mo pa iaapply ung earnest effort?!? Eh pap atayin na ung babae.. kaya tayo may marital disqualification rule pare di mastrain ung relationship..eh kung strain na talaga bkit pa iaapply ang MDR.. Hiyas Saving SC ruled in relation to earnest effort to compromise that will only be applicable if the parties involved in the case are the members of the family..if there is already astranger or

a third person who is involved in the case this earnest effort to compromise is not anymore applicable.. Q: Why? A: kc kawawa naman ung third person… di ba kapag sinabi nating earnest effort to compromise..madedelay ang lititgation.. kay why mo hahayaang madelay ang litigation just to give the members of the family to compromise at the expense of third person.. Martinez vs. Martinez SC ruled that the phrase ―members of the family‖ must be construed in relation to ART. 150 of the FC Art. 150. Family relations include those:(1) Between husband and wife;(2) Between parents and children;(3) Between ascendants and descendants;(4) Among brothers and sisters, whether of the full or half-blood.BUT a sister-in-law or brother-in-law is not included in the enumeration. Santos vs. Santos Q: Kpag walang earnest effort to compromise, if there is no proof, what will the court do? A: The court will have to dismiss the case. Q: What happened in this case? A: Dito ang nangyari in invoke nya ung failure to compromise dun sa action to revive judgment..isnt in your remedial law, you are given a period of 5 years on which to execute the judgment otherwise you file an action to revive the judgment..ang ginawa dito, action to revive na..so para mprevent ang action for revival, niraise nya ang issue na walang earnest effort to compromise..SC ruled that it is not applicable to an action revive judgment... That earnest effort to compromise can only applicable in an original action but not in an action to revive judgment..

FAMILY HOME (FH) *EXCEPTION FROM ATTACHMENT will only apply if members of the family are the ones in possession of the family home. Therefore, if none of the family members is staying in the family home, it will be then be anymore exempted from attachment This is one provision in the FC that could NOT BEGIVEN RETROACTIVE APLLICATION. Q: Why? A: Under the 1950 CC, before a house and lot can be considered as a FH, there is a need for a judicial or extrajudicial constitution, this is not automatic.. Under the FC, its automatic..in other words, for as long as the house and lot belongs to one or both of the spouses and members of the family are staying there without any act, automatically it is deemed instituted as a FH

Q: Kung kinasal na ang magulang natin tapos walang ginawang steps before para maging FH sya, assuming na under 1950CC ung marriage, tapos dahil effective nangayon ang FC, may the FC regarding constitution of the FH be now given retroactive application? A: IT DEPENDS. Whether or not there was a loan obtained before the effectivity of the FC. Take note of ART 256FC ―this code shall be given retroactive application provided that it will not affect vested right ‖.Therefore, if a loan was already obtained before the effectivity of the FC by any of the spouses then this provision regarding the constitution of the FH under the FC cannot be given retroactive application because creditors have already acquired a vested right on the property of the spouses ..OPINION NI MAM: That is why in the problem, too general.. no indication whether there is a loan obtained or not. I will SUGGEST, you make a qualification provided that we are talking of a situation where in the spouse got married before the effectivity of the FC. Kapag ung problem, nakasulat naman na kinasal after the effectivityof the FC, no need to qualify because it is automatic without judicial or extrajudicial constitution. PROVIDEDthat the house and lot belongs to anyone or both spouses.. Q: Pampagulo.. Si Juan at Maria nagpakasal after the effectivity of the FC, Nagupahahan..1988..after 10yrsdun pa rin sila nakatira..Can that ap artment beconsidered as a FH? A: No, one requirement is that it should be owned by one or both of the spouses.. That is the reason why it is exempted from attachment.. to protect the interest of the members of the family.. Patricio vs. Lario III The FH deemed constituted from the time it is occupied as a family residence. Occupancy of the family of the FH either by the owner or by any of its beneficiaries must be actual. Something real. Actually existing. Not merely possible. Not constructive possession. Connect it to your property, isn’t possession can be actual or constructive possession. So here for it to be protected from exemption. It must be actual not constructive possession and it should be occupied by the members of the family as enumerated under the FC. Note: Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.

LIFE EXISTENCE

Note: Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. Q: Pano na kapag namatay? A: It will continue for period of 10yrs from the death of one of the spouses or for as long as there is a minor child..a minor beneficiary of the FH.. Q: Kapag namatay ung magasawa, ang naiwanang anak ay ung 1yr old..how long? A: More than 10yrs pa.. ―for as long as there is a minor child‖..in this case, till magreach sya ng 18yrs old tsakalang magteterminate ang existence ng FH.. NOT EXEMPT FROM EXECUTIONNote: Art. 155. The family home shall be exempt from execution, forced sale or attachment except:(1) For nonpayment of taxes;(2) For debts incurred prior to the constitution of the family home;(3) For debts secured by mortgages on the premises before or after such constitution; and(4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building.(1) Taxes under this provision refer only to real estate taxes. Q: What if di ka nagbayad ng income tax? A: Wala syang kinalaman dito..therefore, exempted pa rin from attachment OPINION NI MAM: Very ironical kc sabi ng State.. I will protect the family..pero sabi ng State, if di kanagbayad ng real property tax, the State I will not protect you..I will get your FH..(―,)(2) debts incurred prior to the constitution of the family home- It is in consonance with Art256FC because creditors already have acquired vested right..connect it with..(3) debts secured by mortgages on the premises before or after such constitution(4) For debts due to laborers, mechanics, architects, builders, material lmen and others who have rendered service or furnished material for the construction of the building. Q: Debt to laborers, kapag di ka nagbayad ng katulong,kasama ba ito dito? A: No. Included lang dito ay ang laborers who only work for the construction of the FH.. Sps. Varsola vs. CA SC only made mention about when it is constituted as a FH.. From the time it is occupied as a FH..No need for judicial or extra-judicial constitution.. Modiquillo Case Kapag nangutang na before effectivity of the FC, you cannot give anymore a retroactive application to this provision on creation of the FH..WHY? because it willaffe ct the vested right of the creditors..

TITLE VIPATERNITY AND FILIATION Make sure you know the meaning of the following: A. Paternity- relationship between a father and a child B. Maternity C. Filiation D. Legitimate E. Illegitimate F. Adopted Child Presumption: If a child is born in a lawful marriage, the child is presumed to be legitimate. SSS vs. Aguas SC ruled that the presumption becomes conclusive if there is absence of proof of physical impossibility to have sexual intercourse with a wife and the action of impugning the legitimacy or illegitimacy is something personal to the husband Note:Art. 166.Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse; (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. Concepcion vs. CA In this case, mother denying that the child is her own child..SC ruled that maternity is never uncertain.. Every reasonable presumption must be made in favor of legitimacy..WHY? Because only the woman knows who is the real father of her child.. Note: Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulterous.

Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. In 1950CC, if the husband died, the wife is not allowed to contract marriage immediately… so there is a grace period for the issuance of a marriage license. Why? Because the law would not like to have a problem regarding paternity and filiation of a child.. Now in case if there is any issue regarding the paterninty and filiation, if you will notice th e prominentnumbers in paternity and filiation, you have three: 1. 120 days 2. 180 days 3. 300 days RECKONING POINT: before or after 180 days from the second marriage but within 300 days from the first marriage Reason: (SEX EDUCATION NI MAM) That is the time that there is a meeting of mind of the sperm and egg cell..for girls having regular menstruation, 28days…divide by2 equals 14..therefore, for you to have safe sex, count 7days from the first menstruation and then count 21 to 28 because that time the woman is not in ovulation..120 days is time the fetus is being made… Etcetera… REMEDIES: 1. Remedy given to a husband who does not like to acknowledge the child as his own child— ACTION TOIMPUGN THE LEGITIMACY OR ILLEGITIMACYOF THE CHILD. Assuming that the relation is one of common law relationship. 2. If it is the child who is suffering or not treated well, what is his remedy? The child is given a remedy to file an ACTION TO CLAIM LEGITIMACY OR ILLEGITIMACY a.k.a. ACTION FORCOMPULSORY RECOGNITION

In remedial law, anybody can file an action. Nobody is prohibited to file an action.. but the question is: are you the proper party in filing the action? In other words, we connect now the substantive law with remedial law. . Q: Juan Dela Cruz, a child, who was not acknowledged by the father and the mother file an action in behalf of the child for compulsory recognition. If you were the judge, how will you decide the action filed by the mother? A: Before answering, consider first the following: (1) Is the mother the proper party in interest? Is she the real party to file an action? (2) Same thing as to the remedy to the husband, Is the sister of the father the party in interest to impugn the legitimacy or illegitimacy of the child? Next step, look if there is any date given in the problem. If there is, check if it is within the prescriptive period. NOTE: PRESCRIPTION Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy. Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. Then, is there a ground or proof of filiation? In action to impugn, the real party is the husband. This is the general rule. Study the exception – when heirs of the husband may impugn the filiation. But take note connect the ―heirs‖ on who are the compulsory heir in succession. Therefore, if it does not fall within the exception, expression unius rule, the judge must dismissed the case because he is not the real party in interest. NOTE: EXCEPTIONS TO IMPUGN Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases:(1) If the husband should died before the expiration of the period fixed for bringing his action;(2) If he should die after the filing of the complaint without having desisted there from; or (3) If the child was born after the death of the husband. Liao Case In this case, the child is who filed theaction..impugning his legitimacy..kc ang nangyaridit o..ung second husband nung nanay nya ay masmayaman kaysa tatay nya..so sabi ng

bata, hindi who ako ang anak..hindi ako legitimate…SC ruled that impugning one’s legitimacy is personal to the husband or to the father and not to the child.. Q: What about the action to claim legitimacy or illegitimacy of the child? Does the law require that it must be filed during the lifetime of the putitative father? A: As you could see, the provision is silent on the matter..so meaning, as long as the child is alive..the child can file the action, even if the father is dead..but there is an exception, if the child filing the action is illegitimate and the proof of filiation presented by the child is open and continuous possession ..the FC required that the action must be filed not just during the lifetime of the child but also during at the lifetime of the putitative father..That is the only exception that requiring that the father must be alive at the time of the filing of the action. Note:Art. 172. The filiation of legitimate children is established by any of the following:(1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a) Q: Are there cases wherein the heirs of the child can file the action? A: As we have said, it is the general rule that it is the child should file the action. Exception, the heirs of the child can file the action if the two cases: when the child DIES during (1) Minority and (2) in a state of insanity. But with respect to remedy of husband, 3 ang exception. Note:Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. Q: When to file? A: If it is a remedy given to the husband, there are three important numbers: 1, 2 and 3 years. Remember the rule on exception and its application. Know where the child was born and the residence of the father. Q: If the child is born was born in the same residence of the father, what rule applies?

A: The father is given a period of one year from the knowledge or registration of the birth certificate..although of course, if you will notice, based on due process, it should be counted from the knowledge of the father..1yr..hindi lang dapat alam nyo kung anong year iaapply but kung kelan kayo magbibilang..kc baka alamnyo 1 year tapos expired na pla..2 yrs applies if the child was born in a place which is different from the place where the father resides..so.. Q: If sa Cardinal Santos ipinanganak ang bata taposang father ay residing sa Espana, Manila..what year will you apply? 1yr or 2yrs? A: 2yrs kc Cardinal Santos is in San Juan and you know that Espana is in Manila..unless if Espana, Madrid..then in this case, 3yrs will apply.. Q: What if it is the heir of the husband filing the case, what is the prescription period? A: Apply the same prescriptive period..1, 2 or 3 years Q: What if the case is filed by the child? A: At anytime during the lifetime of the child as a general rule..but take note again of the exception Q: What is the prescription given to heirs of the child? A: 5 years counted from the death of the child during minority or in state of necessity. Regarding ACTION FOR COMPULSORYRECOGNITION, remember the ground under Art 172 FC – proof of filiations. On the other hand, regarding the impugning of the father, take note of Art 166 FC. GROUNDS: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120days of the 300 days which immediately preceded the birth of the child because of: (a) The physical incapacity of the husband to have sexual intercourse with his wife; (b) The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) Serious illness of the husband, which absolutely prevented sexual intercourse; *Serious illness is the kind of illness that will really affect or prevent the man’s capacity to have sexual intercourse. Andal Case SC that even if the husband is already suffering on chronic tubercolosis, this provision will not apply...not serious illness that will affect man’s capacity to have sexual intercourse Q: How about if the husband has prostate cancer?

A: This provision will not apply. Pede pa rin. May intercourse

capacity

pa

rin

to

have sexual

Q: What if paralyzed? A: Must qualify. If taas or baba ang paralyzed...if taaslang, pde pa rin gumana ung nasa baba..Or better, for this provision to apply, the man should be fully paralyzed *Living separately means not only that the husband is leaving the conjugal dwelling. Q: What if ung babae nasa Calaoocan tapos ung lalaki nasa Mandaluyong? A: It will not apply kc pede pa rin magkaroon ng sexual intercourse..May probability pa rin na magkita Therefore, husband must be abroad.. There is no possibility kc na makabuo..(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or *titigan mo ung bata..if obvious from the appearance of the child na di mo anak..un na..except thru artificial insemination..That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained(1) through mistake, fraud, violence, intimidation, or undue influence.*there must be a written consent. It must be freely given because any vitiated consent is a ground for the annulment Q: When is the written consent be given? A: It must be given before the birth of the child. Q: What if it was given after the child was born? can the subsequent written be valid? A: No, because the law requires it to be given before Q: What will be the remedy of the husband? A: The only remedy is to adopt the child Hao vs. CA Blood testing grouping is conclusive as to none paternity but it is not a proof of filiation because it does not follow that if you are blood type A, your child should be blood type A.. Q: What about action given to the child? A: Art172 FC provides for proof affiliation and these proofs of affiliation is categorized into two: (1) primary proof of filiation and secondary proof of filiation. PRIMARY PROOF OF FILIATION (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

*Birth Certificate Roces Case If the birth certificate is not signed by the father, the birth certificate cannot be accepted as proof of filiationeven if in the birth certificate indicates the name of the father In the old birth certificate, the form only provides a box which indicates whether legitimate or illegitimate.But now, at the back there is affidavit of acknowledgment.. EXCEPTION: Ilano Case It was the father who filled up the blank form of the birth certificate. And gives all the information...ang ginagawa kc ay pinapafill-up ng nurse using pencil or iniinterview then ittype ng nurse..pero nung binilik na ungtypewritten form, the father was not able to sign kc he was not around then the mother signed. There was an issue on paternity and filiation. The father refused to acknowledge the child and the child presented the birth certificate. Which was unsigned but considering the circumstances that prevailed at the time of the delivery of the child, SC ruled that even if the birth certificate was unsigned since the father was the one who gave all the information, as an exception to the general rule. Here, the birth certificate was admitted as evidence..So if a question will be asked in the bar exam..its too general. Q: Juan Dela Cruz presented a birth certificate as proogf of filiation and unsigned birth ce rtificate, is it admissible in evidence as proof of filiation? A: You must qualify..invoking the ruling in case of Roces and Ilano People vs. De Lantin, 2007 Reiterated the case of Roces Labagala Case Reiterated the case of Ilano Q: Give an example of public and private documentthat could be used as proof of filiation. A: Remember the ante-nuptial agreement. Those stipulations that has nothing to do with the celebration of marriage and the marriage did not take place and if that is acknowledgement of a child that could be considered as a public document or a private handwritten instrument Another example, Last will and testament. If it is a notarial will, it is public instrument. If it is a holographic will, it is a private instrument wherein the testator does not only disposes property but also acknowledges the child being conceived by the common law spouse or by the wife. (Aparecio vs. Paraguya) SECONDARY PROOF OF FILIATION In the absence of the foregoing evidence, the legitimate filiation shall be proved by:(1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws.

Q:Give examples of open and continuous possession of the status of a legitimate child. A: Baruieco Case Where the father or the husband accompanied the pregnant woman in the hospital and paid the hospital bill. That is the example of open and continuous possession.. Also, using the surname, those children born before the efectivity of the FC and under the CC there is no prohibition against the use surname. Although ngayon mahirap na, regarding the illegitimate child using the surname of the biological father. Before your application can be accepted you have to attach document proving that you were already acknowledged by your biological father Also, kada buwan pumupunta ka sa taong ito at kinukuha ang allowance mo..or biniyaran ang tuition fee mo.. Q: Examples of means allowed by ROC. A: Mendoza vs. CA Included in the phrase ―other means‖ are the baptismal certificate, judicial admission, family bible in which his name was entered, common reputation respecting pedigree, admission by silence, testimony of witness(Rule 130 ROC) Q: How about DNA? What is the position of the court? A: As early as the Case of Tecson, case involving FPJ. That is when for the first time the SC made mention of DNA. The SC said that lower court is not prevented from accepting DNA as proof of filiation. Although, SC in the case of Herrera vs. Alva said that court should be cautious in giving credence to DNA. It is not enough that child’s DNA profile matches that of the putative father. The court should require 99.9% as minimum value of probability of paternity. The court should consider how samples were collected and handled because there could be a possibility of contamination. DNA test does not involve getting sample of your blood. But pwedeng scrape your skin or hair with the root. Scrape the tongue. OPINION NI MAM: which it would be better if you legally adopt the child because DNA is already accepted in adoption so if later on somebody will run after the child and it will be proven that you are not the biological parent. The one claiming has the right on the child. May DNA na tayo. Although adoption cost: P50, 000-60,000…and should be performed simultaneously with the father and the child with the consent of the biological mother.. Cruz vs. Cristobal Early ruling, that baptismal certificate is not acceptable..it is only a piece of document that proves that the sacrament of baptism was performed..it is a private instrument but in this case, medyo kumambyo, horizontals tare decisis, the SC baptismal certificate is one of the acceptable documentary evidence to proof filiation in accordance of ROC. Q: Examples of private instrument.

A: Love letters, text message and also email messages Q: If the question has nothing to do with artificial insemination but test tube baby or cloning, how will you answer? A: By analogy, apply the provision regarding artificial insemination because the framers never probably realized that there could be a test tube baby or cloned baby in the future.

ILLEGITMATE CHILDREN Q: What are the rights of the legitimate children? A: Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and(3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code. Q: How about an illegitimate filiation? How it is establish? What are their rights? A: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. Rights of illegitimate children, as long as the child is recognized, the child is entitled to support, inheritance and with the new law. AN ACT ALLOWING THECHILD TO USE THE SURNAME OF THEBIOLOGICAL FATHER (R.A. 9255) abandoned the ruling in MOSESGELT. LEGITIMATED CHILDREN Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.*The FC code makes used of the word CONCIEVEDand

BORN NOT CONCIEVED or BORN.. you go back to your statcon. The effect of using ― and” is not the same as the effect of using ― or” in the provision. If it is AND it is mandatory that both should be present. If it is OR, it means that you have a choice either or the child can be legitimated if the child is conceived and born. Q: The parents should not have any legal impediment to marry each other..Because if there is legal impediment to marry each other and when born the child is born, there was no more legal impediment..what is the remedy? A: Adoption not legitimation by subsequent marriage.. Q: What should be done if the child can be legitimated by subsequent marriage? A: The parents need only to execute an affidavit that when the child was conceived and born.. there was no legal impediment to marry each other existing between them and later on they got married..Attaching birth certificate of the child and marriage contract and submitting them to the civil registrar office where the birth certificate of the child is registered.. Q: Would there be new birth certificate be issued? A: None. What will happen is that the civil registrar will make an annotation that the child is legitimated by subsequent marriage. RIGHTS OF LEGITIMATED Art. 179. Legitimated children shall enjoy the same rights as legitimate children.

ACTION TO IMPUGN Art. 182.Legitimation may be impugned only by those who are prejudiced in their rights, within five years from the time their cause of action accrues.

ADOPTION DOMESTIC ADOPTION vs. INTER-COUNTRYADOPTION Q: When will you apply the Inter-Country Adoption? Will you apply it only if a foreigner is applying for adoption? A: No. it is not only applicable for foreigner who is filing for adoption but also it could be applied if a Filipino is applying for adoption. You can use Inter-country Adoption, if petition for adoption is filed abroad but if in the Philippines, apply domestic adoption. Q: Where will you file if it is Inter-country? A: we have Inter-country adoption board..Now what you have to do is to go to the Philippine Embassy and inquire from the Philippine embassy and you can file your petition for adoption there..

Q: Can any child be legally adopted? A: As long as the child be declared legally available for adoption and the child is a minor child then he can be qualified to be adopted..Unlike before..You can just adoptany child who you can see in the street,it isautomatic..Also, if you saw a baby in front of your door, you can adopt it the baby BUT NOW, you need to bring the child to DSWD or any orphanage. WHY? so that they can do the declaration of the child as legally available for adoption..if not, so that it will be less expensive, in our petition for adoption the prayer would be to (1) ask the court to declare the child legally available for adoptionand (2) to grant the petition for adoption note that declaration can be judicial or extrajudicial.. Q: In Inter-country, it uses the word difference from legally avaible for adoption?

“legally-free

child” does

it have any

A: No. It is simply a question of semantics..At the same time, it could also be done judicially or extajudicially Q: Who may adopt? A: at least 16yrs older than the adoptee Q: Is it absolute? A: No. exception:1.if the adopting parent is the biological parent of the child to be adopted (or the spouse of such parent)Example: Nabuntis ka nung minor k then later on gusto mo ng angkinin ung bata..pwede kahit di yrs ung gap..SA old law, 15yrs sa youth and welfare code..ang explanation ay nadagdagan kc ang marrying age..OPINION NI MAM: di sya pabor sa rason na un. It would probably bec of the moral ascendancy that should be exerted by the adopting parent toward the adopted child. Although, why 16yrs of all ages. Just because it is the law In Domestic Adoption, ALIEN now may adopt provided that he has the qualifications of a Filipino whocan adopt plus additional requirements.. NOTE: REQUIREMENTSFILIPINO CITIZEN 1. Legal age, in possession of full civil capacity and legal rights; 2. Good moral character, has not convicted of any crime involving moral turptitude, 3. Emotionally and psychologically capable of caring for children 4. At least 16years older than the adoptee (waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee’s parent)

ALIEN

1. Same as the qualifications of Filipino citizen 2. His/her country has diplomatic relations with the Republic of the Philippines3.he/she has been living in the Philippines for at least 3. Continuous years prior to the filing for adoption and maintains such residence until the adoption is entered 4. he/she has been certified by his her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his or her country 5. his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter RESIDENCY and CERTIFICATION of the alien’s qualification to adopt in his/her country may be waived for the following: 1. A former citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity 2. One who seeks to adopt the legitimate son/daughter of his/her Filipino spouse 3. One who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse HUSBAND AND WIFE SHALL JOINTLY ADOPT except in the following cases: 1. if one spouse seeks to adopt the legitimate son/daughter of the other 2. If one spouse seeks to adopt his/her own illegitimate son/daughter. Provided, however, that the other spouse has signified his/her consent thereto3.if spouses are legally separated from each other *In inter-country, the adopter must be at least 27 years old *Alin bang bansa ang wala tayong diplomatic relation? tingnan natin kc baka ung bata or magaapon nanggalingsa bansa na wala tayong diplomatic relation..di open ang lahat sa pilipinas..Baka kc un ang question sa bar..Ung resdidency requirements..yan ang requisites sa FC. As a rule sa FC, alien cannot adopt unless he has the qualifications but in Domestic adoption. Alien can adopt provided that he has the all qualifications of the Filipino who are qualified to may adopt and a residence of the th Philippines for three years. Also take note..who are included in 4 degree? hanapin ang common..sa tatay1degree..sa kapatid 2 degrees.. Affinity kamag-anak molang dahil asawa mo. Q: Who may be adopted? MEMORIZE A: In DOMESTIC ADOPTION, the following may be adopted:

1. Any person below 18 years of age who has been administratively or judicilally declared available for adoption 2. The legitimates son/daughter of one spouse by the other spouse 3. as 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 the adoption, said person has been consistently considered and treated by the adopter(s) as his or her own child since minority 5. a child whose adoption has been previously rescinded 6.a child whose biological or adoptive parents(s)has died; provided, that no proceedings shall be initiated within 6months from the time of death of said parent(s)In Inter-country, only a legally free child may be the subject of inter-country adoption Q: Whose written consent is necessary? (memorize) why it is necessary especially when it involves legitmate and adopted child, 10years? A: because ultimately it will lessen their successional rights..lumillit ang share..in actual cases, tinatanong talagang judge ang bata..gunu din ang biological parent in cases of biological right, hindi na sya magiging compulsory heir, pde lang testate succession but not intestate succession..testate succession if he/she is instituted as an heir.. SEC. 9 (Domestic); WHOSE COSENT IS NECESSARY TO THE ADOPTION 1. The adoptee, if 10 years of age or over 2. The biological parent(s) of the child, if known, or the legal guardian or the proper government instrumentality which has legal custody of the child 3. The legitimate and adopted sons/daughters, if 10years of age or over 4. The illegitimate sons/daughters, if 10 years of age or over, of the adopter if living with said adopter and the latter’s spouse, If nay 5. The spouse, if any, of the person adopting or to be adopted Q: Is guardian allowed to adopt? A: Only after the termination of the guardianship and clearance of his/her financial accountabilities. Tamargo Case During the pendency of the petition for adoption. The prospective adoptive child cause an injury to a third person..in relation to the FC Art127-128, who should beliable? The parents. bakit dapat maging liable ang parents? Because the parents has actual supervision of the child. When a petition for adoption is granted, the decision granting the petition for adoption would retroact when the child was born. This is the only first time that the local civil registry will cancel the original birth certificate and new birth

certificate will be issued kc ang makikita nung bta..name of father ay ung adopting father..name nung mother ay adopting mother..so hindi nya malalaman based on the document na inampon lang sya..kaso ung ibang civil registrar nagkakamali kahit nakastate na sa implementing rules the birth certificate should not show that the child was simply adopted. So ang nangyari sa case na ito, nung nagkaroon na ngdecision, inampon na ung bata so syempre mangongolekta na ung relatives nung batang nasaktan..sabi nung biological parent dapat hindi kami ung liable..dapat ung adopting parents..kc ung adoptiondecision retroacted to the date when the child was bornso wala na kaming problema, wala kamiong liability..SC ruled that wrong..this is an exceptional case wherein the decision regarding the adoption was not given retroactive application. WHY? because it will be unfair for the adopting parent. SC said at the adopted child causes injury to third person, the biological parent were the one sactual custody and supervision of the child..Therefore, even if the petition for adoption was already granted..the biological parent should still be liable for the injury caused by the adopted child because when it happened, they are the ones who has actual custody and supervision of the child.. Kang Case Written consent of the biological parents is indispensable unless the parents already abandoned the child Q: What are the effects of adoption? A: 1. parental authority vested on the adopter 2. considered as legitimate son/daughter of the adopter 3. successional right *Remember that adoption is strictly personal between the adopting parent and the adopted child..that is why inrelation to succession, as held in the case of Mariateguevs. CA, there is no right of representation if the adopted child predeceased the adopting parent. Why? because the relationship is strictly between the adopting parent and the adopted child Q: Ano ngayon ang mangyayari sa share ng adopted child? A: di ba sa succession may tinatawag tayong accretion.. di pede ang right of representation.. di rin pede angsubstitution..kc ang substitution pede lang sya sa testatesuccession..so accretion in favor of the survivinglegitimate children who are the compulsory heirs..unganak ng adopted, wala makukuha unless the anak of theadopted was instituted as a voluntary heir

RESCISSION is only applicable or a remedy available to the child

Q: What about the adopting parent?if maldita pla ung inamapon, ano gagawin nya?

A: disinheritance Stephanie Astorga Garcia Case Here the petitioner is a single parent, lalaki nag amponsya..di ba kapag nagampon ka mas maganda may wife para at least kumpleto ang magiging pangalan ng bata..may middle name may surname..ang question dittong nagampon ay kawawa naman ung inampon ko kungwalang siyang middle name.. alangan naming gamitingnung inampon ang middle name ng nagampon kc magiging magkapatid sila..tatay na nya kapatid nanaya..sothe petitioner ask the court to allow the child to retain the middle name (the surname of the mother)..for the first time the SC emphasizing the importance of the middle name..it traces the maternal lineage. SC granted the petition..allowed the child to retain the surname of them other as the middle name. Even if the child was already adopted Republic vs. Hernandez Ang gusto ng nagampon palitan din ang pangalan.. SCruled No..ang right lang ay palitan ang surname pero ung pangalan..you need to connect it now with ROC, changeof name. it provides when allowed to change name (ex.Humiliating, embaracing). Change of name is not allowed in adoption but through ROC. Ching Ling Case Adoption is not a mode of acquiring or changing one’s citizenship..so if your adopting parent is an American citizen..then it is not automatic that you become an American citizen..because citizenship is a political right but not a civil right..although, you need to connect it now with dual citizenship act..derivative citizenship it presupposes that the unmarried child, below 18yrs of age, whether legitimate, illegitimate or adopted XXX..naampon na sya tapos nagkataon ung tatay gusto ulit magreaquire ng Philippine citizenship..no need to take oath of allegiance ung bata..susundin na ung citizenship ng tatay

TITLE VIII SUPPORT ART.195 and 199 MEMORIZE PERSONS OBLIGED TO SUPPORT Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants;

(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or half- blood ORDER OF SUPPORT Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:(1) The spouse;(2) The descendants in the nearest degree;(3) The ascendants in the nearest degree; and(4) The brothers and sisters. Q: Assuming that you got married, does it mean that your obligation to give support to your parents or brothers or sisters is deemed terminated? A: As you could see, there is no provision in support that provides when obligation to give support is terminated. This is the only case when there is the decision and the decision does not become final in the sense that anyamount that reflects therein in the decision can bechanged depending on the needs of the recipient and the means of the giver.. Going back to the question, what the law gives you is to follow the order of support. Who should be given preference against the other? Question ni mam sa mga nga student. If may pera ang mga lalaki kanino ibibgay: sa nanay o asawa? sabi daw ng mga student nya ay sa nanay but she said na mali un.. base sa order of preference, dapat sa asawa.biblical basis:once you are married you have to leave your mother and go to your wife XXX (―,) the support given to the mother must be from exclusive property not from conjugal partnership or absolute community of property Quisumbing Case Unborn child entitled to support Lacson Case Connected with the provision of unjust enrichment…if the biological father did not give support but it was the uncle, the uncle has the right to demand for the reimbursement of the expenses he incurred in child..other wise, the biological father is unjustly enriching himself at the expense of the uncle.. Patricio vs. Dayo Involves waiver of right.. the SC gives the following characteristics of support.. it is personal, based on family ties.. that is why in relation to property there is distinction between real right and personal right..right to support is a personal right..it cannot be transmitted ..in relation to succession, based on the definition of succession..it

enumerated what can be transmitted after the death..one of the thing that can be transmitted is a right..but it refers to a real right not a personal right. Example of person alright is support..it is in transmissible, it cannot be renounced, that is why in ART 6 FC.. there can be no valid waiver of right to support nor can be renounced nor be compromised..free from attachment or execution..it variable in amount..this why the decision cannot be final because the amount involve is always subject to change

TITLE IX PARENTAL AUTHORITY Correlate it with CHILD ABUSE ACT and ART 19CC, therefore if the parents are at fault, they could beliable criminally or for damages, respectively. CUSTODY OF THE CHILD Q: What if there is a conflict between the husband and the wife, to whom the custody be awarded? A: In relation to custody, if the child is below 7yrsold..the custody is generally given to the mother. Why? because we have tender age presumption which means that the beast interest of the child is considered by the court..it the child is below 7yrs old they say the manner how the mother raises the child is different as to how the father will raise his own child..so the law prefers the mother to take care of the child.. Gamboa and Tonog Cases SC gave exception to that rule. GENERAL RULE: if the child is below 7yrs old, the custody is awarded to the mother EXCEPTION: for compelling reasons Q: Give examples of those compelling reasons whenthe custody should not be awarded to the mother A: 1. Neglect 2. Abandonment 3. Unemployment 4. Immorality 5. Habitual drunkenness 6. Drug addiction

7. Maltreatment of child 8. Insanity 9. Affliction with a communicable disease Therefore, it the mother is not suffering from any of these then the custody shall be automatically awarded to the mother. Sagala vs. CA Custody of child entrusted to mother in law is simplya temporary custody. Why? because parental authority isinalienable. It cannot be transferred.. Perez Case The custody of a child below 7 years of age is given to the mother because of the basic need of the child for a mothers loving care Q: What is the remedy if you want to regain thecustody of a child? A: File a PETITION FOR HABEAS CORPUS Q: Where do you file? Does it fall within exclusive jurisdiction of the family court? Because in your remedial law, there is a special court created that will handle the cases of the family called a FAMILY COURT. Is it only the Family court where you can file? A: Madrinial vs. Madrinial The family court act of 1997 (R.A. 8369) did not divest the CA and SC the jurisdiction over habeas corpus cases involving custody of minors..in other words, the Family court has concurrent jurisdiction with CA and SC when it comes to petition for habeas corpus..affirmed byAM03-03-04 of SC dated April 22,2004..the Family court is vested with original and exclusive jurisdiction in custody cases not in habeas corpus..it means that petition for custody is different from petition for habeas corpus cases…therefore, if you are filing a petition for custody of the child, the family court has only the original and exclusive jurisdiction to handle the case the case..on the other hand, EXAMPLE of petition for habeas corpus: If the grandparent will get the custody of the child tapos itatago..so what is the remedy? file a petition for habeas corpus..- in this case, it ruled that regarding habeas corpus..there is concurrent jurisdiction with Family court, CA and SC Bondadjai vs. Bondadjai If the custody was awarded to the wife, it does not deprive the husband of the parental authority.. parental authority is retained.. what is not given to the father is simply the custody over the child.. that is why the father has the right to visit the child.. Laxamana Case

The choice of child for 7yrs or above, should be ascertained. Although of course, family court do not like to call the child in the witness stand and ask the child to make a choice because it becomes traumatic on the part of the child..therefore, usually the court will throw back again to the parents and ask them to settle it amicably.. Q: Parental preference rule vs. maternal preference rule? A: In maternal preference , custody of the mother over the child is preferred than that of the father..Why? because it has something to do with ethymological definition of marriage..marriage is taken from two latin words..mater (mother) and munium(office/responsibility) because of the 9month period of pregnancy wherein there is much bonding between mother and child.. Parental preference rule that the custody of the child should only be given to the parent..that is why the kind of authority between the parental authority given to the parents and the substitute parental authority being exercised by the grandparents.. parents should alwaysexercise parental authority..although, Filipino settingassuming that the wife work abroad..usually the wife leaves the custody to her parents..mali ito..because it is a violation of parental preference rule..parents are vested of custody of their child against other person including the grandparents.. Krisna vs. IAC No finality of custody of judgment Santos case It is only in the absence of both parents, that grandparents can exercise substitute parental authority..if wala lolo o lola, elder brother or sister..if none, guardian.. Substitute parental authority over the child Note: Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated:(1) The surviving grandparent, as provided in Art.214; (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified; and (3) The child's actual custodian, over twenty-one years of age, unless unfit or disqualified. Whenever the appointment or a judicial guardian over the property of the child becomes necessary, the same order of preference shall be observed. Q: What is the difference between ART 218 FC vs. ART 2180 CC? Art. 218.The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and

responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. ART 2180.Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. ART 2180 refers to torts and damages (quasi-delict)..it does not take into consideration the age of the students..law is silent.. ART 218it explicitly provides that it refers to minor children and they could be heldliable if something happened to minor child in anauthorized activities whether inside or outside the premises of the school, entity or institution . The school, its administrators and teachers, or the individual, entity or institution will be liable. BUT in ART 2180 the school does not have any liability..the liability is only shared between the teacher and the head of the school. ART 218 we are talking about minor children wherein theteacher, school and the administrator can be held responsible..their liability is solidary and principal..connect it with ART 219 FC Art. 129. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the un emancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. The respective liabilities of those referred to in the preceding paragraph shall not apply if it is proved that they exercised the proper diligence required under the particular circumstances. All other cases not covered by this and the preceding articles shall be governed by the provisions of the Civil Codeon quasi-delicts. *considering that their liability is principal.. if the judgment cannot be enforced on them, you may run after the parents of the minor child who caused injury to another minor child But take note of the difference form ART 221 FC. Art. 221.Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. *The liability of parents is primary..this contemplates a situation wherein it is outside of the school premises not relate to school activities.. dito hindi na hahabulin ang teacher kundi ung parents na..therefore, principal ung parents BUT if nangyari sa school, ang unang liable ayteacher, school and head of school..also, ang liability ay principal and solidary.. solidary liability

means that youcould enforce the entire judgment against one solidarydebtor and that soldary debtor should now run after theother co-solidary debtors..but if they cannot fulfill the judgment, then you can run after the biological parentwho caused injury..because parents are subsidiary liableI llustrated in CASE: ESCONDE and AMADORA up to ST. MARY’S ACADEMY vs. KAPITANOS ART 2180. When provision refers to school. It only limited to school of arts and trade based on the provision as embodied in the Civil code Esconde Case SC ruled that ART2180(7) refers to teachers or heads of establishments of arts and trades ..not to academic educational institution..BUT in the case of AMADORA…ART 2180 should apply to all school..academic and non-acdemic.. also, held in case of PALISOC Saygozo vs. IAC SC ruled that recess is included in the phrase―attendance in the school‖..Therefore if the child is in the canteen and there is something happened to the child..The parents can still run after the teacher, school and head of the school..What is the defense of the latter? Observance of diligence of the good father of the family..Which is the same defense under ART 2180.. There was a camping..tapos nawawala na ung 3 bata..tapos nakita ung 3 bata lumulutang ung bata sadagat..di nakita nung teacher na lumangoy at nalunodung bata..in this case, even it happened outside the school since it is related to school activity..the teacher is liable..the same in the case where bumaligtad ang bus during field trip sa avilon zoo..XXXXXX That is the reason why the tuition fee in elementary is higher than in college..probably because of the responsibility being assumed by the teacher, school and administrator.. EMANCIPATION Under 1950 CC, there are two modes of emancipation: 1. contracting marriage 2. attainment of the age of majority because marrying age is 14 for female and 16 for male and at that time the legal age is 21.. effect of emancipation: parental authority is terminated NOW, there is only one mode of emancipation because of the fact that the marrying age is 18 and the legal age is reduced to 18..it is the attainment of the age of majority Q: If meron k ginawang kalokohan when 18yrs old k, does it mean wala ng cause of action ang victim against your parents? Considering ART 236...you are already

emancipated..Therefore the parental authority is terminated upon reaching the age of majority A: R.A. 6809. Even if you are 18years of age or those 18-21..and still living with their parents and causes injury to third person..the parents can still be held liable for it but if paglagpas mo ng 21 kahit na nasa nanay ka pa..bahala kana sa sarili mo just in case you cause injury to third person..di na liable ang parents..no more VICARIOUSLIBILITY of parents.. Escano vs. Gil Nag- asawa na sya pero nakatira pa rin sya sa magulangnya tapos nagkaroon ng problema..SC ruled that bastanandun ka pa sa parents mo kahit nagpakasal kana..parents can still be held liable…BUT under RA6809 ,nagkaroon ng limitation..til 1821years old na lang.. NULLITY, ANNULMENT, LEGAL SEPARATION Nullity- status of marriage is void ab initio, which means from the very start no marriage was celebrated even if there was a marriage ceremony performed. Annulment- marriage is voidable, valid until annulled. L.S- marriage is valid at the time it was celebrated. In remedial law who is the real party in interest. Secure a copy of A.M. 02-11-10, tells us about new rules in filing a petition for declaration of nullity, annulment and L.S. In the case of Ninal for purposes of resolving the issue regarding succession or inheritance, the heirs of any of the spouses can file a petition for declaration of nullity of marriage. But by virtue the said rule A.M. a petition for declaration of nullity of void marriage may be filed solely by the husband or the wife. Enrico vs. Heirs of Cely SC categorically abandoned the ruling in Ninal. The heirs do not have the right to file a petition for nullity even for purposes of setting the issue on inheritance. Only the husband or the wife can be considered real party in interest Q: Why did I say injured party no statutory reference? A: Bec. There is no injured party when it comes to grounds for declaration of nullity. If you will recall in Art.4, the absence of any essential/formal requisites will render the marriage null and void. Can you consider a party in bad faith, if 4th cousins fell inlove? or Can we say that the husband or the wife is in bad faith if there is lack of marriage license/lack of legal capacity/psychological incapacitated. That is the reason why when it comes to who is the real party in interest, we do not use the word injured party, if it is a petition for nullity. Under the rules, it is simply the husband or the wife. Nobody can be considered as an injured party in a petition for declaration of nullity.

Salmingo vs. Rudica Dito nakialam ung pubic prosecutor, kasi dib a if you file a petition for declaration of nullity the state will always intervene because of the constitutional mandate that the state will protect the sanctity of marriage and in order to find out whether there is a collusion bet. The parties, the state representative who can be the public prosecutor or office of Sol. Gen. will appeal in court. In this case S.C said one who is not a real party in interest in a complaint for declaration of nullity cannot ask for the setting aside therein. His invocation of the states interest in protecting the sanctity of marriage does give him the standing to question the decision by law. It is the prosecuting atty. Or fiscal or Sol. Gen. who represents the interest of the state. But as I have said the role of the fiscal or Sol. Gen. is simply to find out whether or not there is a collusion bet. The parties when the petition was filed. Here a 3rd person filed a petition for declaration of nullity and he is invoking for the interest of the state. SC said, no you are not a real party in interest.

Annulment Q: Who can file the case? A: Only the injured party/aggrieved party. Q: Why is there such a thing as injured party in annulment? A: One ground 4 annulment is fraud. In ROC, if you will go to court, you have to go there with a clean hands so if you are the one who committed fraud, you cannot file a petition for annulment. So only the injured party can file but there are exceptions: 1.Lack of parental consent- the parent where consent was not obtained can file a petition for annulment 2.Insanity- the relative can file a petition for annulment. Legal Separation Just like in annulment, if you will look at the grounds of L.S there is really an injured party. Ex. Repeated physical violence, so kung ikaw ang boksingero, hindi ikaw pwedemg demanda, ung sinasktn ang pwede.

Prescriptive period Nullity - the 10-year prescriptive period has been repealed so forget about it, it imprescriptible, so even if you were married before the effectivity of the FC, still you can file a petition, for the reason that it is void ab initio so why put prescriptive period. Annulment 5yrs. is the prescriptive period for filing a petition. Memorize Art.7when do you start counting the5-yr period. Ex. Fraud- upon the discovery and not frm the

celebration of the marriage. But take note of the exceptions considering there are 3rd persons who can file, you need to connect that to the prescriptive period. So if it is the parent whose consent was not obtained, the parent can file before the child reaches the age of 21. Q: What happen if the parent was not able to file the petition and the child is already 21 or above 21? A: So you have to apply the 5-yr period but this time relate it to the spouse who did not obtain the consent of the parent so the spouse who got married upon reaching the age of 21 still given 5 years counted frm 21. Meaning to say until he/she reaches 26 yrs old. After 26 or pg 27 na cya, if he/she did not file- the marriage was already rarified by cohabitation. Ratification is only applicable in a voidable marriage. If insanity, any of the relatives of the insane may file. Before the death of either party or during lucid interval. L.S - 5 years. How to impugn? Can it be attacked directly or collaterally? Void marriage- it can be attacked collaterally w/c means that is not the main issue in the case file. It was simply brought out as a consequence in attacking the principal issue in the case. Voidable marriage - cannot be attacked collaterally. There shld be a separate action to annul. L.S - it is not applicable bec. The marriage is valid. Grounds Memorize the grounds. But the easiest way, 1st applyArt.4, the absence of any of the essential/formal requisites. Then go to list of prohibited marriages. Domingo vs. C.A Prior judicial declaration of marriage should not be simply construed as necessary only for the purposes of contracting a subsequent marriage. There is also need for judicial declaration of the first marriage for the purpose of setting the issue regarding inheritance etc. it is not only limited to contracting a subsequent marriage. Art.40 should be extensive; it should not only for the sole purpose of contracting subsequent marriage. Molina Doctrine SC said, it enumerates what are the elements that shld be present so that a petition for declaration of nullity onthe ground of P.I. can be granted, the impt. Elements are:

1. Medically proven 2. Permanent and incurable N.B. there are 8 in the list, but these 2 are most impt. Ching Ming Choi He wants to remain a virgin all thru his life. He does not like to have sex. In canon law, if marriage is not consummated it is a ground for annulment. But in this case it is tantamount to P.I. it was discovered that Ching Ming Choi is not He but She in a man’s body. Marcos vs. Marcos Not related by blood but bec. Of employment contract. If you read this case, these 2 people used to be member of the PSG they became unemployed. Nainis ung babae xecya lng wrkng. Although in this case the SC denied the petition. What the SC emphasize here, a person can be considered P.I. even if he was not personally interviewed by a psychologist. Moreso khit ndi nainterview or naexmine the psychologist may give a recommendation or declaration that respondent is P.I. Basis?- the testimony of the relatives of the resp., who testified that since birth that has been the behavior of the resp. the psychologist will trace the family background. Republic vs. Dagdag Root cause must be medically identified. Buenaventura case Petitioner wants the person who was declared P.I. to pay damages. SC said no, it is not his fault to be P.I. at the same time there is possibility that the petitioner may be declared as P.I. Paras vs. Paras The disposition of a disbarment case cannot be conclusive on an action for declaration of nullity, because it was based on immorality, it is not a ground. Take note of the gravity of P.I. 1. Gravity 2. Judicial antecedents 3. Incurability Q: If you have been declared as P.I. do you still have thecapacity to enter into a subsequent marriage? A: 2 suggested answers:

1.There is such a thing as relative P.I. meaning to say, resp. might be P.I. to the 1st spouse but not on the 2nd spouse.2.Ma’am Lopez’s Opinion- take into consideration the requisites of P.I. accdg. To Molina case there shld be an element of permanence and incurability. Incest rules- memorize Art.37 The new rules of declaration of nullity of marriage under A.M 02-11-10 relaxed the requirement of expert opinion referring to a psychologist/psychiatrist. Sec.2 par. b the petition need not allege expert opinion but simply complete facts of he physical manifestation indicative of said incapacity. Memorize marriages against public policy. Bigamous Marriage Q: Juan married, after disappearing for several years contracted a second marriage. Is the 2nd marriage valid? A: As a general as that you may qualify, it’s because of the so called judicial declaration of presumptive death of the absent spouse. Disappearance is different from abandonment. What Arts. 40 & 41 contemplate is disappearance under circumstances beyond the control of men. Example: Disappeared because of earthquake. If you want to marry again you have to file a petition for declaration of the presumptive death of the absent spouse. Which is different under the 1950 CC- absences for 7 consecutive years may be sufficient to give you the capacity to contract subsequent marriage, if you have a well-founded belief that your spouse is dead. Filipinos abuse that provision, that is why in the FC when if your spouse disappeared under circumstances beyond your control, you need to ask the court to declare your husband/wife dead. Effect of declaration: this will give you the chance to contract a 2nd marriage. Q: If you contracted a 2nd marriage, does it mean to say that the 1st marriage is already terminated? A: No, the 1st marriage accdg. To the FC is simply suspended. In effect, the 2nd marriage although allowed by law is bigamous but this is a case that even it is bigamous it is considered valid- why valid?- bec. Before the contracting the 2nd marriage there was a judicial declaration of presumptive death of the absent spouse. Q: What happens if absent spouse re-appeared? A: It depends, if there is an execution of affidavit of reappearance filed before the LCR where the marriage contract is registered automatically, the 2nd marriage according to FC is deemed terminated in w/c case, the suspension of the 1st marriage is deemed lifted. Q: What happens to the children assuming they are children in the 2nd marriage? A: The children will remain legitimate. Under the Spanish CC, the moment there is a judicial declaration of presumptive death of the absent spouse, automatically, the 1st marriage is terminated, and the 2nd marriage will remain to be valid.

Q: Assuming that the person who re-appeared have decided not to file ad affidavit of reappearance, will it give him the capacity to contract a subsequent marriage? A: No, remedy-he should go to court and file a petition for the declaration of nullity of his first marriage. Q: Aside from the absent spouse, who may file an affidavit of reappearance? A: The present spouse, but the law does not make it mandatory the law says ―may file‖ Annulment of Marriage Take note when it comes to fraud, you have to apply rule on statutory const. ―expresio unios‖- what is not include is deemed excluded.

Fraud Ducat vs. Aquino SC said, kpg 7 months na un babae kalokohan na un kng s2vhn may deceit pa. Why? If the woman is pregnant, it is only up to the 4th month wherein you cannot see that the woman is pregnant or not. The moment that it is already in the 5th month, automatically bgla n lng lalaki ung tyan.SC said in this case if 7 months n un babae, u can’t later on claim that there was fraud/deceit-non disclosure of pregnancy. But if the woman is 4 months pregy or below 4mnths then that is when you can invoke fraud. What makes it fraud is not the pregnancy per se, it’s not the STD, it’s not the homosexuality, but the nondisclosure w/c makes it a ground for annulment. Anaya case Non-disclosure of pre-marital relationship does not constitute fraud. So memorize the 4 circumstances constituting fraud. Villanueva vs. CA Lack of cohabitation per se is not a ground to annul a marriage. It only becomes when it arises as a result of the perpetration for any of the grounds for annulling marriage. Luis vs.Atienza A lawyer is involved in this case. The lawyer alleges that he was threatened by the father of the girl. The father said that if you will not marry my daughter, I will file adisbarment case. SC said that is not a kind of intimidation/force w/c can vitiate consent. The kind of intimidation w/c can vitiate consent is something that there is really a threat on imminent danger to one’s life or property or life of one’s relative. If you connect it to the justifying circumstance under the RPC-self-defense. Macarubo vs. Atty. Macarubo Macarubo got married. He filed a petition for annulment alleging that he was ―napikot‖, the court annulled. 2nd marriage- he claimed again ―napikot ulit aq‖ SC said it is

unimaginable for a lawyer taking intoconsideration his profession. 1st time acceptable ―shot gun wedding‖ but 2nd time around ―shot gun wedding ulit, SC said 1 incident of a shot wedding is believable but in succession would tack one’s credibility especially accdg. to SC it s not easy to believe that a lawyer would be easily coward to enter into marriage. Impotency Male or female may be impotent. Impotency just like P.I. shld be permanent and incurable. Jimenez vs. Rep SC said to find out whether it is incurable the spouse can be physically examined even when there is an opposition. That would not be a violation of constitutional rights. Sarao case Considering that the operation of the wife was successful the impotency as a ground for annulment cannot be accepted. Q: Pano mgiging impotent ang babae? A: Depende sa opening ng vaginal canal. If the opening is too small and there if difficulty for penetration. Q: Eh kng sa lalaki? A: There is difficulty in ejaculation. It has something to do w/ the size of the penis. STD Before it was not a ground. Bqt? Xe dati d uso ang prosti… huh? Grounds for L.S. Make a code, impt. Un code ni ma’am alm nyo na n…hehehe 1. Repeated physical violence- it is not simple violence.. it has to be repeated. 2. Abandonment Ong vs.Ong The abandonment should be w/o justifiable reason for it to be a ground for L.S. in this case the wife left the conjugal dwelling because she was physically abused. It was the husband who filed a petition for L.S. on the ground of abandonment. SC said it cannot be abandonment, pnu k ndi i2wah eh inaabuso mu asawa mu. So for it to be a ground 4 legal separation it should be. -At least 1 year -w/o justifiable reason

3. Attempt of the respondent x x x tgnan sa codal…hehe 4. Final judgment- connects it to ROC ok…un timeframe kng kelan un period…na final judgment ntlga. 5. Lesbianism/homosexuality, if there is nondisclosure-fraud, if there is-ground for LS. Effects Q: Declaration/annulment/LS, they say it is a package deal, why? A: Because all of these should appear in the decision, it is not just a ruling that the petition is granted. Petition should embody what would be the effect in relation to the status of the child the custody, the prop. Relationship, donation propter nuptias, succession. Some family court they might have overlooked it so for practical purposes, when you become practitioners and you will be handling a case, I suggest you include it in your prayer. Yu vs. Yu SC citing Arts. 49 & 50 of the FC, the issue about the custody of the child is deemed impleaded in the petition for declaration of nullity, together w/ support, dissolution of property, presumptive legitime. So SC said lahat dapatnandon, kya lng nakakalimutan ng family court so para hindi makalimutan, ilgay nyo n sa prayer nyo kya nga package deal sya. 1.Marriage bond Nullity- marriage is dissolved. Annulment- it is proper to say the marriage bond is dissolved, bec. It is voidable, valid until annulled. L.S- marriage bond is not dissolved, it will remain to be valid but there is simply a separation from bed & board. 2.Status of children Children born before the declaration of nullity will remain to be legitimate. So if after declaration gen, rule children are legitimate, except- if the ground is P.I. under Art. 36or under Art.53 w/c refers to non-delivery of the presumptive legitime and the registration requirement before you contract a subsequent marriage, under these 2 cases if the children are born before the declaration of nullity and later n the marriage becomes null and void, they will remain to be legitimate. Which means that if you are talking about the other grounds for example- lack of legal capacity, absence of marriage license, kng ung declaration of nullity ngawa lng after 50 yrs so after 50 yrs s2vhnmu sa anak mo illegitimate k pla. Because the decision in the declaration of nullity as a gen. rule will retroact on the date of the celebration of the marriage except if the ground is 36 & 53.

Q: What is the status of the child if it is annulment? A: They will remain to be legitimate if conceived or born. Remember when we were talking about legitimated children by subsequent marriage, the law requires conceived and born. Here conceived or born so either or. Before the decree.. Q: In LS what is the status of the child? A: Legitimate because the marriage bond is not dissolved. 3. Property relationship We discussed under Arts. 147 & 148 refer to co-ownership in relation to a common law relationship and void marriages. We now connect it here, what are void marriages falling under 147/148. As mentioned, if there is an element of bad faith and I can only think- for it fall under 147/148, the co-ownership under 148 wherein there is a need for a proof of actual contribution, if he marriage is declared null &void on the ground of bigamy. Because he is in bad faith but majority be governed by 147 because it’s not your fault, kea dib a here is no injured party in declaration of nullity. In annulment, apply the provision in the creation of property relationship. So in the absence of ante-nuptial agreement- presumption-> absolute community. In case of an ante-nuptial agreement, the property relationship agreed upon by the parties- that is the one that would be dissolved in annulment of marriage, why? Because we are talking about a marriage that is voidable, valid until annulled & what is the effect? We said in annulment there is an injured party & as an assumption the spouse in bad faith forfeits, what is forfeited is the share in the profits. Profits lng ndi kabuuan, kxe kng kbuuan kwa2nmn. Wla n nga aswa, ala p property. In LS , same effect, kng anu ang property relationship agreed upon, if there is an ante-nuptial agreement or in the absence, you follow the applicable property relationship, following the presumption of the law. 4.Custody of children Kea kng cnvnt applicable sa nullity kze wla nga, void ab initio so tlgang dpt sa nanay. Kea nga d b under the FC shall carry the surname of the mother ngkataon lng we have a new law allowing an illegitimate child to carry the surname of the father. In annulment, here the court will always take into consideration the different doctrines I mentioned a while ago. Presumption maternal preference rule and the parental preference rule. In LS, usually gnun din. 5. Inheritance Nullity- disqualified to inherit of the spouse is in bad faith. Annulment- spouse in bad faith, disqualified to inherit.

LS- Offending spouse, disqualified to inherit.

6. Donation by reason of marriage/donation propter nuptias Nullity- remains valid except if donee contradicted in bad faith in w/c case it is revoked by operation of law. Annulment- bsta kpg may bad faith, the revocation is by operation of law pero kng ti2gnan mu sa…alakasunod eh….sorry. LS- revocation by innocent spouse.

7.Delivery of presumptive legitime Q: After the decision of marriage, what should udo? A: Delivery of presumptive legitime and recording of judgment. Otherwise if you will contract a 2nd marriage, if you will not do this, then either of the spouse in the 2nd marriage can make this a ground for declaration of nullity for noncompliance w/ thisrequirement. R.A. 9048-Gigondo Law-clerical error act The changing of name/nickname. Do not be confused this w/ the change of name in ROC. What is contemplated in RA 9048 are cases involving those people wherein supposedly you have 2 names in your birth certificate. Affidavit is not applicable in passport. The law does not refer to those cases when for example she wants to change her name because it is ridiculous. But if for example her name is Pedro but she has been using Pedra all throughout the years from elementary up to college. So what will Pedra do, produce all documents showing that since grade 1 the name Pedra has been appearing consistently. This is not because it is humiliating or embarrassing based on records because that is the name that you have been habitually using. Typographical error- only 1st name & nickname allowed, surname not allowed Other examples w/c can be changed- entry- birthday, nationality, all typographical- S change to Z Female nging male-> pero female tlaga cya->Congressman it is clerical error but to Court it is substantive, if this will be asked in the bar, just stick to what is written in the title..Typographical error or clerical error or change of first name or nickname. Effectivity of RA 9048: April22, 2001Case of petition for the change of name Julio Karulasan. SC said the person who should file the petition should be the concerned person himself. In this case it was the mother who filed on behalf of his child. Reason of the mother, her child will go to

Singapore, and Singaporeans might not pronounce ―karulasan properly‖ at bka pgtawanan sya. SC said let the child decide for himself. The mother is not real party in interest. Republic vs. Co, 2007 Publication of the order of hearing under Sec. 4 of Rule 108 cures the failure to implead an indispensable party. Silverio vs.Republic Person who had a sexual transplant/sex re-assignment. It was granted by the lower court on ground of equity. SC what should be reflected in the birth certificate are information on data at the time of the actual birth. SC made mention of RA 9048 -grounds for changed of 1st name: 1. Petitioner finds 1st name, nickname to be ridiculous tainted w/ dishonor or extremely difficult to write or pronounce. 2.1st name or nickname has been habitually and continuously used by petitioner and have been publicly known by that 1st name/nickname in the community. That is why I’ve said you execute an affidavit for the change of name and then you attach documents showing that since elementary you have been using that name. Change of sex and name in the Silverio case was not allowed.