civil law

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CIVIL LAW 1.

Is the judgment declaring the presumptive death/absence of a spouse under the Family Code appealable? Ans:

2.

When may the custody of the child below 7 years old be given to the Father, not to the mother? Ans:

3.

For compelling reasons, as when the mother is found unfit to take care of the child as an exception to the “tender-age presumption” under Art. 213 of the Family Code. (Gualberto vs. Gualberto, June 28, 2005)

Is prostitution or marital infidelity of the mother a compelling reason to give the custody to the Father? Illustrate unfitness of the mother to take care of the child. Ans:

No. The so-called “tender-age presumption” under Article 213 of the Family Code may be overcome only by compelling evidence of the mother’s unfitness. The mother has been declared unsuitable to have custody of her children in one or more of the following instances: neglect, abandonment, unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a communicable disease. But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not even the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child. To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care. (Gualberto vs. Gualberto, June 28, 2005) Whose surname may an illegitimate child bear?

4. Ans: 5.

No, the judgment is immediately final and executory by express provision of law. (Art. 247; Republic vs. Lorino, G.R. No. 160258, Jan. 19, 2005)

The mother’s surname unless he is recognized by the father, in which case he may use the father’s surname. (Alba vs. CA, July 29, 2005

When may a spouse testify against the other spouse as an exception to the rule on marital disqualification? Ans:

When the marital and domestic relations are so strained that there is no more harmony to be preserved or peace and tranquility which may be disturbed.

6.

Sexual infidelity by itself is not sufficient evidence of psychological incapacity. (Villalon vs. Villalon, Nov. 18, 2005)

7.

May the woman the Petitioner intends to marry intervene in the action of the plaintiff to annul his marriage with the estranged wife? Ans:

No, she has no legal interest because she was never a legal wife of the Petitioner. Her marriage to him is void because at the time of her marriage to the Petitioner, the

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Sec. 22, Rule 130 of the Revised Rules of Court provides that, during their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter’s direct descendants or ascendants. However, this rule has its exceptions. As in the case at bar, where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent. In particular, when an offense directly attacks, or directly and vitally impairs, the conjugal relation, it comes within the exception to the statute that one shall not be a witness against the other except in a criminal prosecution for a crime committee (by) one against the other. (Alvarez vs. Ramirez, G.R. No. 143439, Oct. 14, 2005)

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latter was still lawfully married. (Elmar Perez vs. Court of Appeals and Tristan Catindig, G.R. No. 162580) 8.

a) Is a bank which relies only on the title in granting a mortgage loan, without verifying the title and inspecting the property a mortgagee in good faith if it turns out later on that there are other claimants in possession of the property? Ans:

No. Banks, their business being impressed with public interest, are expected to exercise more care and prudence than private individuals in their dealings, even those involving registered lands. Hence, for merely relying on the certificates of title and for its failure to ascertain the status of the mortgaged properties as is the standard procedure in its operations, the bank is a mortgagee in bad faith. (Consolidated Rural Bank vs. CA, G.R. No. 132161, January 2005)

b) What is the doctrine of “mortgagee in good faith”? Ans:

Under Article 2085 of the Civil Code, one of the essential requisites of the contract of mortgage is that the mortgagor should be the absolute owner of the property to be mortgaged; otherwise, the mortgage is considered null and void. However, an exception to this rule is the doctrine of “mortgagee in good faith.” Under this doctrine, even if the mortgagor is not the owner of the mortgaged property, the mortgage contract and any foreclosure sale arising therefrom are given effect by reason of public policy. This principle is based on the rule that all persons dealing with property covered by a Torrens Certificate of Title, as buyers or mortgagees, are not required to go beyond what appears on the face of the title. This is the same rule that underlies the principle of “innocent purchasers for value.” The prevailing jurisprudence is that a mortgagee has a right to rely in good faith on the certificate of title of the mortgagor to the property given as security and in the absence of any sign that might arouse suspicion, has no obligation to undertake further investigation. Hence, even if the mortgagor is not the rightful owner of, or does not have a valid title to, the mortgaged property, the mortgagee in good faith is, nonetheless, entitled to protection. (Llanto vs. Alzona, G.R. No. 161029, January 2005) A mortgagee can rely on what appears on the certificate of title presented by the mortgagor and an innocent mortgagee is not expected to conduct an exhaustive investigation on the history of the mortgagor’s title. This rule is strictly applied to banking institutions. A mortgagee-bank must exercise due diligence before entering into said contract. Judicial notice is taken of the standard practice for banks, before approving a loan, to send representatives to the premises of the land offered as collateral and to investigate who the real owners there are. Banks, indeed, should exercise more care and prudence in dealing even with registered lands, than private individuals, as their business is one affected with public interest. Banks keep in trust money belonging to their depositors, which they should guard against loss by not committing any act of negligence that amounts to lack of good faith. Absent good faith, banks would be denied the protective mantle of the land registration statute, Act 496, which extends only to purchasers for value and good faith, as well as to mortgagees of the same character and description. Thus, this Court clarified that the rule that persons dealing with registered lands can rely solely on the certificate of title does not apply to banks. (Heirs of Manlapat v. CA, G.R. No. 125585, June 8, 2005)

a) Spouses A and B acted as sureties for the loans obtained by BMC. BMC filed a Petition for suspension of Payments. May the Bank sue A and B to enforce their solidary liability with BMC? Ans:

Yes. Under Art. 1216 of the Civil Code, the creditor may go against the sureties alone independently of BMC without prior demand for payment on the principal debtor because they are solidarily bound with BMC for the payment of the debts to the Bank. (Ong vs. PCIB, G.R. No. 160466, January 2005)

b) Will your answer be the same if A and B are mere guarantors? Ans:

No. A guarantor is only an insurer of the solvency of the debtor, while a surety is an insurer of the debt itself. The liability of a guarantor is subsidiary. He has the benefit of excussion, and may be made to pay only if the principal is insolvent. (Arts. 2063 and 2081, Civil Code; Ong vs. PCIB, G.R. No. 160466, January 2005)

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c) Distinguish between guaranty and suretyship? Ans:

A guarantor insures the solvency of the debtor while a surety is an insurer of the debt itself. A contract of guaranty gives rise to a subsidiary obligation on the part of the guarantor. In a suretyship contract, however, the benefit of excussion is not available to the surety as he is principally liable for the payment of the debt. A surety is directly, equally and absolutely bound with the principal debtor for the payment of the debt and is deemed as an original promissor and debtor from the beginning. (Ong vs. PCIB, G.R. No. 160466, January 2005) What is the “complimentary-contracts-construed together” doctrine?

10. Ans:

In enforcing a surety contract, the “complementary-contracts-construed-together” doctrine finds application. According to this principle, an accessory contract must be read in its entirety and together with the principal agreement. This principle is used in construing contractual stipulations in order to arrive at their true meaning; certain stipulations cannot be segregated and then made to control. This no-segregation principle is based on Article 1374 of the Civil Code. (PBC vs. Lim, G.R. No. 158138, April 2005)

Registered mortgage in good faith is preferred over unregistered sale. (Flancia vs. CA, April 2005)

11.

Has the entrustee under a trust receipt the right to mortgage the property held in

12. trust? Ans:

No, because the entrustor (creditor Bank), not the entrustee is the owner of the property in trust. A mortgage must be executed by the absolute owner of the chattels to be valid. (Art. 2085 [2]; DBP vs. Prudential Bank, G.R. No. 143772, November 22, 2005) What is an equitable mortgage?

13. Ans:

The real intention is to constitute a mortgage to secure repayment of a loan in a contract that appears on its face as a sale, absolute or with pacto de retro. Under Art. 1602, a contract is presumed an equitable mortgage in any of the following badges of fraud: (1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold; (6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. (Alvaro v. Ternida, G.R. No. 166183, January 20, 2006)

a) The broker or agent who brought the buyer and seller together and arranged the ocular inspection that did not materialize is entitled to commission even if he does not participate in the negotiations of the sale. (Medrano vs. CA, February 2005)

14.

b) Where the contract of agency is revoked after disagreement on the commission and the principal proceeded to directly negotiate the transaction, the agent is not entitled to commission. (Carlos Sanchez vs. Medicard, per J. Sandoval-Gutierrez, September 2, 2005) To be valid, a partnership involving capital of 3,000.00 or more in money or property, or with contributed real estate must be in a public instrument. (Arts. 1771 & 1772; Litonjua vs. Litonjua, Dec. 13, 2006)

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Who can file a notice of lis pendens?

16. Ans:

Only a party to a case has the legal personality to file a notice of lis pendens relative to the pending case. It declared that petitioners are not parties in land registration case filed by Sandoval and Ozatea. Since a land registration case is a proceeding in rem, an order of general default binds the whole world as a party in the case. The heirs of Eugenio Lopez are mere movants whose personality the court has not admitted. Based on Section 26 of PD 1529, the LRA ruled that they should have filed a motion to lift the order of general default. (Heirs of Eugenio Lopez, Sr. vs. Hon. Enriquez, G.R. No. 146262, January 21, 2005)

Donation of real property is void if not made in a public document. (Dept. of Ed. vs. del Rosario, January 16, 2005)

17.

What are the requisites for legal easement of right of way?

18. Ans:

The following: (1) It is surrounded by other immovables and has no adequate outlet to a public highway; (2) payment of proper indemnity; (3) the isolation is not the result of its own acts; (4) the right of way claimed is at the point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. (Sps. dela Cruz vs. Ramiscal, G.R. No. 137882, February 4, 2005) What are the elements of laches?

19. Ans:

The essential elements of laches are: (a) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (b) delay in asserting complainant’s rights after he had knowledge of defendant’s acts and after he has had the opportunity to sue; (c) lack of knowledge or notice by defendant that the complainant will assert the right on which he bases his suit; and (d) injury or prejudice to the defendant in the event the relief is accorded to the complainant. (Sps. dela Cruz vs. Ramiscal, G.R. No. 137882, February 4, 2005)

An action for reconveyance based on fraud is imprescriptible where the plaintiff is in possession. (Leyson vs. Bontoyan, February 18, 2005)

20. 21.

Political Contribution is taxable gift. (Abello vs. CIR, February 23, 2005)

22.

What is the doctrine of indefeasibility of torrens titles? Ans:

A certificate of title, once registered, should not thereafter be impugned, altered, changed, modified, enlarged or diminished except in a direct proceeding permitted by law. The resolution of the issue is, thus, not dependent on the report of the survey team filed in the trial court. (De Pedro v. Romasan, G.R. No. 158002, February 28, 2005)

Ans:

Where the real property involved is covered by a Torrens title, the buyer, mortgagee, or, any person dealing with said realty need not go beyond what appears on the face of the title. He is charged with notice only of such burdens and claims as are annotated on the title. (Clemente vs. Razo, G.R. No. 151245, March 04, 2005)

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Who is an innocent purchase in good faith of registered land?

23.

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(a) What is (define) an equitable mortgage:

24. Ans:

An equitable mortgage is defined as one which although lacking in some formality, or form or words, or other requisites demanded by a statute, nevertheless reveals the intention of the parties to charge real property as security for a debt, and contains nothing impossible or contrary to law. For the presumption of an equitable mortgage to arise, two requisites must concur: (1) the parties entered into a contract denominated as a sale; and (2) that their intention was to secure an existing debt by way of a mortgage. Consequently, the nonpayment of the debt when due gives the mortgagee the right to foreclosure the mortgage, sell the property and apply the proceeds of the sale to the satisfaction of the loan obligation. (Sps. Alvaro vs. Sps. Ternida, G.R. No. 166183, January 20, 2006)

(b) What are the badges of presumed equitable mortgage? While there is no single conclusive test to determine whether a deed absolute on its face is really a simple loan accommodation secured by a mortgage, however, the Civil Code enumerates several instances when a contract is clothed with the presumption that it is an equitable mortgage, to wit: Article 1602. The contract shall be presumed to be an equitable mortgage, in any of the following cases: (1) When the price of a sale with right to repurchase is unusually inadequate; (2) When the vendor remains in possession as lessee or otherwise; (3) When upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed; (4) When the purchaser retains for himself a part of the purchase price; (5) When the vendor binds himself to pay the taxes on the thing sold; (6) In any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. In any of the foregoing cases, any money, fruits, or other benefit to be received by the vendee as rent or otherwise hall be considered as interest which shall be subject to the usury laws. It is an established rule that the presence of even one of the circumstances set forth in Article 1602 is sufficient to declare a contract of sale with right to repurchase an equitable mortgage. Thus, under the wise, just and equitable presumption in Article 1602, a document which appears on its fact to be a sale – absolute or with pacto de retro – may be proven by the vendor or vendor-a-retro to be one of a loan with mortgage. In such case, parol evidence becomes competent and admissible to prove that the instrument was in truth and in fact given merely as a security for the payment of a loan. And upon proof of the truth of such allegations, the court will enforce the agreement or understanding in consonance with the true intent of the parties at the time of the execution of the contract. The conditions which give rise to a presumption of equitable mortgage, as set out in Article 1602 of the Civil Code, apply with equal force to a contract purporting to be one of absolute sale. Moreover, the presence of even one of the circumstances in Article 1602 is sufficient basis to declare a contract as one of equitable mortgage. This is in consonance with the rule that the law favors the least transmission of rights.” (Ibid)

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Ans:

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What is the nature of a contract to sell? May it give rise to a cause of action for specific performance? Distinguish a contract to sell from a contract of sale.

25.

Ans:

As correctly stated by the Court of Appeals in its assailed Decision, “The ruling of the Supreme Court in Lim v. Court of Appeals (182 SCRA 564 [1990]) is most illuminating. In the said case, a contract to sell and a contract of sale were clearly and thoroughly distinguished from each other, with the High Tribunal stressing that in a contract of sale, the title passes to the buyer upon the delivery of the thing sold. In a contract to sell, the ownership is reserved in the seller and is not to pass until the full payment of the purchase price is made. In the first case, nonpayment of the price is a negative resolutory condition; in the second case, full payment is a positive suspensive condition. In the first case, the vendor has lost ownership and cannot recover the ownership of the property until and unless the contract of sale is itself resolved and set aside. In the second case, the title remains in the vendor if the vendee does not comply with the condition precedent of making payment at the time specified in the contract.” Considering that the parties’ transaction is a contract to sell, can petitioner, as seller, demand specific performance from respondent, as buyer? Black’s Law Dictionary defines specific performance as “(t)he remedy of requiring exact performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon. The actual accomplishment of a contract by a party bound to fulfill it.” Evidently, before the remedy of specific performance may be availed of, there must be a breach of the contract. Under a contract to sell, the title of the thing to be sold is retained by the seller until purchaser makes full payment of the agreed purchase price. Such payment is a positive suspensive condition, the non-fulfillment of which is not a breach of contract but merely an event that prevents the seller from conveying title to the purchaser. The non-payment of the purchase price renders the contract to sell ineffective and without force and effect. Thus, a cause of action for specific performance does not arise. (Ayala Life Assurance, Inc. v. Ray Burton Development Corp., G.R. No. 163075, January 23, 2006) What is a purchase money resulting trust?

26. Ans:

Article 1448 of the Civil Code on implied trust provides: Art. 1448. There is an implied trust when property is sold, and the legal estate is granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property. The former is the trustee, while the latter is the beneficiary. However, if the person to whom the title is conveyed is a child, legitimate or illegitimate, of the one paying the price of the sale, no trust is implied by law, it being disputably presumed that there is a gift in favor of the child. The trust created under the first sentence of Article 1448 is sometimes referred to as a purchase money resulting trust, the elements of which are: (a) an actual payment of money, property or services, or an equivalent, constituting valuable consideration; and (b) such consideration must be furnished by the alleged beneficiary of a resulting trust. (Comilang v. Burcena, G.R. No. 146853, February 13, 2006) Define trust, and each kind of trust.

Ans:

A trust is the legal relationship between one person having an equitable ownership in property and another person owning the legal title to such property, the equitable ownership of the former entitling him to the performance of certain duties and the exercise of certain powers by the latter. Trusts are either express or implied. Express trusts are created by the intention of the trustor or of the parties, while implied trusts come into being by operation of law, either through implication of an intention to create a trust as a matter of law or

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through the imposition of the trust irrespective of, and even contrary to, any such intention. In turn, implied trusts are either resulting or constructive trusts. Resulting trusts are based on the equitable doctrine that valuable consideration and not legal title determines the equitable title or interest and are presumed always to have been contemplated by the parties. They arise from the nature or circumstances of the consideration involved in a transaction whereby one person thereby becomes invested with legal title but is obligated in equity to hold his legal title for the benefit of another. (Pigao v. Rabanillo, G.R. No. 150712, May 2, 2006) What is accion pauliana? Ans:

The rescissory action to set aside contracts in fraud of creditors is accion pauliana, essentially a subsidiary remedy accorded under Article 1383 of the Civil Code which the party suffering damage can avail of only when he has no other legal means to obtain reparation for the same. In net effect, the provision applies only when the creditor cannot recover in any other manner what is due him. (Union Bank of the Philippines vs. Ong, 491 SCRA 596, June 21, 2006)

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