Last Minute Tips Civil Law 2017 Atty. Buko Dela Cruz

2017 LAST MINUTE TIPS IN CIVIL LAW
By: Enrique V. dela Cruz, Jr.
I. EFFECT & APPLICATION OF LAWS
Q: After conducting preliminary investigation, a panel composed of state

prosecutors from the DOJ charged Sen. Honasan, together with others, with a
violation of Art. 134-A of the RPC for the offense of coup d'etat. Honasan
questions the authority and jurisdiction of the DOJ prosecutors to conduct
the preliminary investigation on the ground that the Office of the
Ombudsman has no authority and jurisdiction to conduct the same, he being
a Senator of the Republic with a salary grade of 31, and that ultimately, the
Sandiganbayan has jurisdiction over his case, not the DOJ. DOJ asserts that
pursuant to OMB-DOJ Joint Circular No., it has jurisdiction to investigate the
case against him, concurrent with the Office of the Ombudsman. Honasan
counters that said circular is ineffective as it was never published. Is OMB-
DOJ Circular No. 95-001 ineffective because it was not published? Explain.
A: No. OMB-DOJ Circular No. 95-001 is merely an internal circular between the two
offices which outlines the authority and responsibilities among prosecutors of the
DOJ and of the Office of the Ombudsman in the conduct of preliminary
investigations. It does not contain any penal provision nor prescribe a mandatory
act or prohibit any under pain of penalty. Further, it does not regulate the conduct
of persons or the public, in general. As such therefore, it need not be published. (146
SCRA 453 and Peo. v. Que Po Lay (94 Phil. 640). (Honasan, II v. The Panel of
Investigating Prosecutors of the Department of Justice, G.R. No. 159747, June 15,
2004)
II. CONFLICT OF LAWS
Q: Several Filipina Flight Attendants were recruited and hired by Saudia Airlines
as Cabin Attendant. The contracts were executed in Saudi. When they became
pregnant, they were instructed by saudia to tender their resignation. Faced with the
dilemma of resigning or totally losing their benefits, the Filipina flight attendants
executed handwritten resignation letters. Upon arrival in Manila, they then filed a
Complaint against Saudia and its officers for illegal dismissal and for other money
claims. Saudia assailed the jurisdiction of the Labor Arbiter. It claimed that all the
determining points of contact referred to foreign law and insisted that the
Complaint ought to be dismissed on the ground of forum non conveniens. It added
that respondents had no cause of action as they resigned voluntarily. Should the
case be dismissed on the ground of forum non conveniens? Explain.
A: NO. Forum non conveniens relates to forum, not to the choice of

governing law. Even if we were to assume, for the sake of discussion, that it is the
laws of Saudi Arabia which should apply, it does not follow that Philippine tribunals
should refrain from exercising jurisdiction. It is not so much the mere applicability
of foreign law which calls into operation forum non conveniens.
2017 Last Minute Tips in Civil Law by Atty. Enrique V. dela Cruz, Jr. 1|Page
Rather, what justifies a court's desistance from exercising jurisdiction is "[t]he
difficulty of ascertaining foreign law" or the inability of a "Philippine Court . . . to
make an intelligent decision as to the law.”(Saudia Airlines v. Rebesencio, et al.,,
G.R. No. 198587. January 14, 2015)
Q: Distinguish “Choice of Law” from “Forum non conveniens.”
A: Choice of law provisions are an offshoot of the fundamental principle of

autonomy of contracts under Article 1306 of the Civil Code. In contrast, forum non
conveniens is a device akin to the rule against forum shopping. It is designed to
frustrate illicit means for securing advantages and vexing litigants that would
otherwise be possible if the venue of litigation (or dispute resolution) were left
entirely to the whim of either party.
Contractual choice of law provisions factor into transnational litigation and dispute
resolution in one of or in a combination of four ways: (1) procedures for settling
disputes, e.g., arbitration; (2) forum, i.e., venue; (3) governing law; and (4) basis for
interpretation. Forum non conveniens relates to, but is not subsumed by, the second
of these.
Likewise, contractual choice of law is not determinative of jurisdiction. Stipulating

on the laws of a given jurisdiction as the governing law of a contract does not
preclude the exercise of jurisdiction by tribunals elsewhere. The reverse is equally
true: The assumption of jurisdiction by tribunals does not ipso facto mean that it
cannot apply and rule on the basis of the parties' stipulation. (Saudia Airlines v.
Rebesencio, et al.,, G.R. No. 198587. January 14, 2015)
Q: May a husband or wife of a prior marriage file a petition to recognize a

foreign judgment nullifying the subsequent marriage between his or her
spouse and a foreign citizen on the ground of bigamy?
A: Yes. There is no reason to disallow the spouse of a prior marriage to simply prove
as a fact the foreign judgment nullifying the marriage between his spouse and
another on the ground of bigamy. The foreign judgment is fully consistent with
Philippine public policy, as bigamous marriages are declared void from the
beginning under Article 35 (4) of the Family Code. Bigamy is a crime under Article
349 of the Revised Penal Code. Thus, the foreign judgment can be proven in
accordance with Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48 (b) of
the Rules of Court. [Fujiki v. Marinay, June 26, 2013]
Q: What is the proper procedure for a foreign decree of divorce to be

enforced in the Philippines?
A: It may be made in a special proceeding for cancellation or correction of entries in

the civil registry under Rule 108 of the Rules of Court. Rule 1, Section 3 of the Rules
of Court provides that "[a] special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact."
Rule 108 creates a remedy to rectify facts of a person's life which are recorded by the
State pursuant to the Civil Register Law or Act No. 3753. These are facts of public
consequence such as birth, death or marriage, which the State has an interest in
recording. [Fujiki v. Marinay, June 26, 2013]
III. PERSONS & FAMILY RELATIONS
Q: At the age 18, Marian found out that she was pregnant. She insured her own
life and named her unborn child as her sole beneficiary. When she was already due
to give birth, she and her boyfriend Pietro, the father of her unborn child, were
kidnapped in a resort in Bataan where they were vacationing. The military gave
chase and after one week, they were found in abandoned hut in Cavite. Marian and
Pietro were hacked with bolos. Marian’s baby was alive when completely delivered
from the mother’s womb, but the baby died within 24 hours from birth. Pietro
survived.
Can Marian’s baby be the beneficiary of the insurance taken on the life
of the mother?
A: An unborn child may be designated as the beneficiary in the insurance

policy of the mother. An unborn child shall be considered a person for purposes
favorable to it provided it is born later in accordance with the Civil Code. There is
no doubt that the designation of the unborn child as a beneficiary is favorable to the
child.
Between Marian and the baby, who is presumed to have died ahead?
A: Since the baby was alive when completely delivered from the mother’s
womb, then it was born as a person and the question of who survived as between
the baby and the mother shall be resolved by the provisions of the Rules of Court on
survivorship. This is because the question has nothing to do with succession.
Obviously, the resolution of the question is needed just for the implementation of
an insurance contract. Under Rule 13, Sec. 3, (jj), (5) as between the baby who was
under 15 years old and Marian who was 18 years old, Marian is presumed to have
survived.
In both cases, therefore, the baby never acquired any right under the
insurance policy. The proceeds of the insurance will then go to the estate of Marian.
Q: Wanting to get out from his marriage, Oscar Mallion filed a petition for the
declaration of nullity of his marriage under Article 36 of the Family Code—the
inimitable psychological incapacity to comply with the essential marital obligations.
His petition was denied. About a year later, Mallion filed another petition seeking
the nullity of his marriage on the ground that it was performed without a valid
marriage license. His wife, Editha Alcantara, countered with a motion to dismiss on
the grounds of res judicata and forum shopping. Will this 2nd petition of Mallion
prosper? Or is it barred by res judicata? Decide.
A: The 2nd petition is barred by Res judicata.
It must be emphasized that a party cannot evade or avoid the application of res
judicata by simply varying the form of his action or adopting a different method of
presenting his case.
Petitioner Malllion contends that the two petitions brought by him seeking the
declaration of nullity of his marriage are anchored on separate causes of action for
the evidence necessary to sustain the first petition which was anchored on the
alleged psychological incapacity of respondent is different from the evidence
necessary to sustain the present petition which is anchored on the purported
absence of a marriage license.
Petitioner, however, forgets that he is simply invoking different grounds for

the same cause of action. By definition, a cause of action is the act or omission by
which a party violates the right of another. In both petitions, petitioner has the
same cause - the declaration of nullity of his marriage to respondent. What differs is
the ground upon which the cause of action is predicated. These grounds cited by
petitioner essentially split the various aspects of the pivotal issue that holds the key
to the resolution of this controversy, that is, the actual status of petitioner and
respondent’s marriage.
Furthermore, the instant case is premised on the claim that the marriage is null and
void because no valid celebration of the same took place due to the alleged lack of a
marriage license. In his fist petition, however, petitioner impliedly conceded that
the marriage had been solemnized and celebrated in accordance with law.
Petitioner is now bound by this admission. The alleged absence of a marriage license
which petitioner raises now could have been presented and heard in the earlier
case. Suffice it to state that parties are bound not only as regards every matter
offered and received to sustain or defeat their claims or demand but as to any other
admissible matter which might have been offered for that purpose and of all other
matters that could have been adjudged in that case. (Mallion v. Alcantara, G.R.
No. 141528, October 31, 2006)
Q: RTC declared Celerina J. Santos (Celerina) presumptively dead after her husband,
Ricardo T. Santos (Ricardo), had filed a petition for declaration of absence or
presumptive death for the purpose of remarriage on June 15, 2007. Subsequently,
Ricardo remarried. Celerina claimed that she learned about Ricardo's petition only
sometime in October 2008 when she could no longer avail the remedies of new trial,
appeal, petition for relief, or other appropriate remedies. Thereafter, on November
17, 2008, she filed a petition for annulment of judgment before the Court of Appeals
on the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was
deprived her day in court when Ricardo, despite his knowledge of her true
residence, misrepresented to the court that she was a resident of Tarlac City when,
in fact, she never resided there.
As a result of Ricardo's misrepresentation, she was deprived of any notice of and

opportunity to oppose the petition declaring her presumptively dead. The Court of
Appeals dismissed Celerina's petition for annulment of judgment for being a wrong
mode of remedy and ruled that the proper remedy was to file a sworn statement
before the civil registry, declaring her reappearance in accordance with Article 42 of
the Family Code. Was the CA correct?
A: No. The proper remedy for a judicial declaration of presumptive death obtained
by extrinsic fraud is an action to annul the judgment. An affidavit of reappearance is
not the proper remedy when the person declared presumptively dead has never
been absent. (Celerina J. Santos v. Ricardo T. Santos, G.R. No. 187061, October
8, 2014).
Q: Lucita left the conjugal dwelling and filed a petition for legal separation due
to the physical violence, threats, intimidation and grossly abusive conduct she had
suffered at the hands of Ron, her husband. Ron denied such and claimed that since
it was Lucita who had left the conjugal abode, then the decree of legal separation
should not be granted, following Art. 56 (4) of the FC which provides that legal
separation shall be denied when both parties have given ground for legal separation.
Should legal separation be denied on the basis of Ron’s claim of mutual guilt?
A: No. Art. 56 (4) of the FC does not apply since the abandonment that is a ground
for legal separation is abandonment without justifiable cause for more than one
year. In this case, Lucita left Ron due to his abusive conduct. Such act does not
constitute the abandonment contemplated in the said provision. Therefore, there is
no mutual guilt between them as there is only one erring spouse (Ong Eng Kiam v.
CA, GR No. 153206, October 23, 2006).
Q: How do you establish the filiation of illegitimate children?
A: The filiation of illegitimate children, like legitimate children, is established

by (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 thereof, 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. The due recognition of an illegitimate child in a record of birth, a will, a
statement before a court of record, or in any authentic writing is, in itself, a
consummated act of acknowledgment of the child, and no further court action is
required. In fact, any authentic writing is treated not just a ground for compulsory
recognition; it is in itself a voluntary recognition that does not require a separate
action for judicial approval. [RODOLFO S. AGUILAR vs. EDNA G. SIASAT, G.R.
No. 200169, January 28, 2015, J. Del Castillo]
Q: Can a Baptismal certificate be used as evidence to prove filiation?
A: No. Just like in a birth certificate, the lack of participation of the supposed
father in the preparation of a baptismal certificate renders this document
incompetent to prove paternity. And “while a baptismal certificate may be
considered a public document, it can only serve as evidence of the administration of
the sacrament on the date specified but not the veracity of the entries with respect
to the child’s paternity.
Thus, baptismal certificates are per se inadmissible in evidence as proof of filiation
and they cannot be admitted indirectly as circumstantial evidence to prove the
same.” (Antonio Perla v. Mirasol Baring and Randy B. Perla, G.R. No. 172471,
November 12, 2012).
Q: A woman claims that Manny Pacquiao is the father of her child. Manny
denies this. The woman showed evidence that she had sex with Manny. Is there a
Prima facie presumption of filiation when sexual relations with the putative
father has been established?
A: YES. There is a prima facie case if a woman declares — supported by

corroborative proof — that she had sexual relations with the putative father; at this
point, the burden of evidence shifts to the putative father.
The two affirmative defences available to the putative father are: (1) incapability of
sexual relations with the mother due to either physical absence or impotency, or (2)
that the mother had sexual relations with other men at the time of conception
(Charles Gotardo v. Divina Buling, G.R. No. 165166, August 15, 2012).
Q: Rosanna, as surviving spouse, filed a claim for death benefits with the SSS
upon the death of her husband, Pablo. She indicated in her claim that the decedent
is also survived by their minor child, Lyn, who was born in 1991. The SSS granted her
claim but this was withdrawn after investigation, when a sister of the decedent
informed the system that Pablo could not have sired a child during his lifetime
because he was infertile. However in Lyn’s birth certificate, Pablo affixed his
signature and he did not impugn Lyn’s legitimacy during his lifetime. Was the SSS
correct in withdrawing the death benefits?
A: No. Under Art. 164 of the FC, children conceived or born during the marriage
of the parents are legitimate. This presumption becomes conclusive in the absence
of proof that there is physical impossibility of access under Art. 166. Further, upon
the expiration of the periods for impugning legitimacy under Art. 170, and in the
proper cases under Art. 171, of the FC, the action to impugn would no longer be
legally feasible and the status conferred by the presumption becomes fixed and
unassailable. In this case, there is no showing that Pablo, who has the right to
impugn the legitimacy of Lyn, challenged her status during his lifetime.
Furthermore, there is adequate evidence to show that the child was in fact his child,
and this is the birth certificate where he affixed his signature (SSS v. Aguas, et al.,
G.R. No. 165546, February 27, 2006).
Q: May a father compel the use of his surname by his illegitimate children
upon his recognition of their filiation?
A: NO. Art. 176 of the Family Code gives illegitimate children the right to
decide if they want to use the surname of their father or not. It is not the father or
the mother who is granted by law the right to dictate the surname of their
illegitimate children. On its face, Art. 176, as amended, is free from ambiguity. And
where there is no ambiguity, one must abide by its words. The use of the word
"may" in the provision readily shows that an acknowledged illegitimate child is
under no compulsion to use the surname of his illegitimate father. The word "may"
is permissive and operates to confer discretion upon the illegitimate children.
[Grande v. Antonio, G.R. No. 206248, February 18, 2014, Velasco, Jr.]
Q: The petition for declaration of nullity of marriage filed by Crisanto against

his wife included a prayer for custody pendente lite of their 4-year old son. The
supplication for custody was based on the alleged immorality of the mother who,
the husband asserted, was a lesbian. However, the trial court citing Art. 213 of the
FC, denied Crisanto's prayer for temporary custody of his son, there having been no
compelling reason to so order it. Was the trial court correct in denying Crisanto’s
prayer for temporary custody?
A: Yes. The petitioner failed to overcome the so-called "tender-age

presumption" rule under Art. 213 of the FC. There was no compelling evidence of the
mother's unfitness. Sexual preference or moral laxity alone does not prove parental
neglect or incompetence – 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 errant spouse from exercising proper parental care.
The so-called “tender-age rule” 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, prostitution,
immorality, habitual drunkenness, drug addiction, maltreatment of the child,
insanity or affliction with a communicable disease (Pablo-Gualberto vs.
Gualberto, G.R. 154994 & 156254, June 28, 2005).
Q: Adriano and Rosario are married to each other. However, their marriage turned
sour and they were eventually separated-in-fact. Years later, Adriano met Fe which
he courted and eventually decided to live together as husband and wife while his
marriage with Rosario is still subsisting. Adriano later died while Rosario and the
rest of his family are in the United States spending their Christmas vacation. When
Rosario learned of Adriano’s death, she immediately called Fe for the delay of
Adriano’s interment which was unheeded by Fe. The remains of Adriano were
interred at the mausoleum of Fe’s family allegedly according to Adriano’s oral
request from her. Who between Rosario (legal wife) and Fe (common law wife) is
entitled to the remains of Adriano?
A: It is clear that the law gives the right and duty to make funeral arrangements to
Rosario, she being the surviving legal wife of Atty. Adriano. The fact that she was
living separately from her husband and was in the United States when he died has
no controlling significance. To say that Rosario had, in effect, waived or renounced,
expressly or impliedly, her right and duty to make arrangements for the funeral of
her deceased husband is baseless. The right and duty to make funeral arrangements,
like any other right, will not be considered as having been waived or renounced,
except upon clear and satisfactory proof of conduct indicative of a free and
voluntary intent to that end. While there was disaffection between Atty. Adriano
and Rosario and their children when he was still alive, the
Court also recognizes that human compassion, more often than not, opens the door
to mercy and forgiveness once a family member joins his Creator.
The Supreme Court ruled that the duty and the right to make funeral
arrangements are confined within the family of the deceased particularly the
spouse of the deceased to the exclusion of a common law spouse. (Valino v.
Adriano, G.R. No. 182894, April 22, 2014).
Q: Virginia Remo, a Filipino citizen, is married to Francisco Rallonza. In her

passport, the following entries appear: "Rallonza" as her surname, "Maria Virginia"
as her given name, and "Remo" as her middle name. Prior to the expiration of her
passport, Virginia applied for the renewal of her passport with the DFA, with a
request to revert to her maiden name and surname in the replacement passport.
Virginia, relying on Article 370 of the Civil Code, contends that the use of the
husband’s surname by the wife is permissive rather than obligatory. Is Virginia
correct?
A: No. A married woman has an option, but not a duty, to use the surname of
the husband in any of the ways provided by Art. 370 of the Civil Code. However,
R.A. 8239 or the Philippine Passport Act of 1996 limits the instances when a married
woman applicant may exercise the option to revert to the use of her maiden name.
These are death of husband, divorce, annulment, and declaration of nullity of
marriage.
In case of renewal of passport, a married woman may either adopt her husband’s
surname or continuously use her maiden name. However, once she opted to use her
husband’s surname in her original passport, she may not revert to the use of her
maiden name, except if any of the four grounds provided under R.A. 8239 is present.
Further, even assuming R.A. 8239 conflicts with the Civil Code, the provisions of
R.A. 8239 which is a special law specifically dealing with passport issuance must
prevail over the provisions of the Civil Code which is the general law on the use of
surnames. A basic tenet in statutory construction is that a special law prevails over a
general law (Remo v. Sec. of Foreign Affairs, G.R. No. 169202, March 5, 2010).
V. PROPERTY
Q: Ludwig and Deoven were given casino chips (of Legenda Casino) worth
$6,000.00 by their Chinese client as payment for the repairs they made on the
latter’s car. They then went to Legenda Casino and after losing only $100.00 in a
game of baccarat, they decided to encash the casino chips. They were then accosted
by casino security personnel on the ground that their casino chips are presumed
stolen since they did not secure it from the casino itself. The casino chips were then
confiscated and forfeited by the casino. Is the casino correct? Explain.
A: NO. Though casino chips do not constitute legal tender, there is no law which
prohibits their use or trade outside of the casino which issues them. In any case, it is
not unusual — nor is it unlikely — that Ludwig and Deoven could be paid by a
Chinese client at the former's car shop with the casino chips in question; said
transaction, if not common, is nonetheless not unlawful. These chips are paid for
anyway; the Casino would not have parted with the same if their corresponding
representative equivalent — in legal tender, goodwill, or otherwise — was not
received by it in return or exchange. Given this premise — that casino chips are
considered to have been exchanged with their corresponding representative value
— it is with more reason that this Court should require petitioner to prove
convincingly and persuasively that the chips it confiscated from Ludwig and Deoven
were indeed stolen from it; if so, any Tom, Dick or Harry in possession of genuine
casino chips is presumed to have paid for their representative value in exchange
therefor. If petitioner cannot prove its loss, then Article 559 cannot apply; the
presumption that the chips were exchanged for value remains. [SUBIC BAY
LEGEND RESORTS AND CASINOS, INC vs. BERNARD C. FERNANDEZ, G.R. No.
193426, September 29, 2014, J. Del Castillo]
Q: Believing that a piece of land belonged to him, A erected thereon a

building, using materials belonging to C. the owner of the land, B was aware
of the construction being made by A, but did not do anything to stop it. What
are the rights of A, B, and C, with respect to the building and as against each
other?
A: B, regardless of his good or bad faith, becomes the owner of the building
(Arts. 445 & 448, NCC). However, A, a builder in good faith will be entitled to
reimbursement of his necessary and useful expenses, with right to retain the same
until paid. He may also remove the construction, since B acted in bad faith in not
stopping the construction (Arts. 454 & 447, NCC). C shall have the right to
reimbursement and may also remove them but only if he can do so without injury to
the work (Art. 447, NCC).
Q: Suppose X was in good faith but Y knew that X was constructing on his
(Y's) land but simply kept quiet about it, thinking perhaps that he could get
X's house later. What are the respective rights of the parties over X's house in
this case?
A: Since the lot owner Y is deemed to be in bad faith (Art. 453), X as the party in
good faith may (a) remove the house and demand indemnification for damages
suffered by him, or (b) demand payment of the value of the house plus reparation
for damages (Art. 447, in relation to Art. 454). Y continues as owner of the lot and
becomes, under the second option, owner of the house as well, after he pays the
sums demanded.
Q: What are the two requisites for an action to quiet title prosper?
A: For an action to quiet title to prosper, two indispensable requisites must concur,
namely: (1) the plaintiff or complainant has a legal or equitable title to or interest in
the real property subject of the action; and (2) the deed, claim, encumbrance, or
proceeding claimed to be casting cloud on the title must be shown to be in fact
invalid or inoperative despite its prima facie appearance of validity or efficacy.
[VILMA QUINTOS, et al vs. PELAGIA I. NICOLAS, et al., G.R. No. 210252, June
16, 2014, J. Velasco, Jr.]
Q: May a co-owner sell his undivided share in a real property owned in

common even before its partition? What is the effect of such sale?
A: YES. Under Article 493 of the New Civil Code, a co-owner has an absolute
ownership of his undivided and pro-indiviso share in the co-owned property. He has
the right to alienate, assign and mortgage it, even to the extent of substituting a
third person in its enjoyment provided that no personal rights will be affected.
Since the co-owner/vendor’s undivided interest could properly be the object of the
contract of sale between the parties, what the vendee obtains by virtue of such a sale
are the same rights as the vendor had as co-owner, in an ideal share equivalent to
the consideration given under their transaction. In other words, the vendee steps
into the shoes of the vendor as co-owner and acquires a proportionate abstract
share in the property held in common. [EXTRAORDINARY DEVELOPMENT
CORPORATION vs. HERMINIA F. SAMSON-BICO and ELY B. FLESTADO, G.R.
No. 191090, October 13, 2014, J. Perez ]
Q: In actions for right of way, what is the standard to be used? Is the

convenience of the dominant estate the governing principle?
A: The convenience of the dominant estate has never been the gauge for the
grant of compulsory right of way. To be sure, the true standard for the grant of
the legal right is "adequacy." Hence, when there is already an existing adequate
outlet from the dominant estate to a public highway, as in this case, even when the
said outlet, for one reason or another, be inconvenient, the need to open up another
servitude is entirely unjustified. (Dichoso v. Marcos, G.R. No. 180282, April 11,
2011; Alicia B. Reyes vs. Spouses Francisco S. Valentin and Anatalia Ramos,
G.R. No. 194488, February 11, 2015)
Q: Are trees movable or immovable property?
A: (a) Trees by their nature are immovable properties because they are not to
be moved from one place to another.
However, the moment they are cut or uprooted, they become personal
property because they ceased to be adhered to the soil. If they are just bent to the
ground as by a strong typhoon but the roots remaining imbedded in the ground,
they are still real property.
(b) Plants adhered to the soil by incorporation are immovable property.
Plants on pots used for ornamentation are personal property because the pots could
be moved from place to another.
Q: Are Animals considered movable or immovable property?
2017 Last Minute Tips in Civil Law by Atty. Enrique V. dela Cruz, Jr. 10 | P a g e
A: It depends.
Beehives when purposely constructed and attached to the ground or on
another immovable (like a tree; wall), fishponds and other similar breeding places,
like cemented container where breeding of fishes or crustaceans is done, are
considered immovable property if the owner of the land or tenement
intended them to be permanent. The animals in the animal houses, the pigeons
in the pigeon houses, the bees in the beehives, the fish in the fishponds are included
and considered part of the immovable property.
The moment the fish is gathered from the fishpond, it is considered personal
property because the fish ceased to be part of the fishpond or breeding place once
extracted therefrom. In the same way, animals which had escaped from the animal
houses ceased to become part of the immovable where they are kept until they are
recovered and put back into their houses. But, if they are out only temporarily, such
as when they are brought out to a watering place and to be returned back, they
remain part of the immovables where they are kept. Cages for parrots and other
domesticated birds which are hanging on houses or buildings are not realty because
they can be moved from place to place.
Q: What is meant by Res Vinta?
A: Res Vinta.—These are immovables by incorporation and not by nature,

destination or by analogy. When separated from the immovable, they regain their
condition as movable property. Examples: (a) Ceiling fans attached to a ceiling; (b)
fire escape in a building.
The rule is that everything attached to an immovable in a fixed manner, in

such a way that it cannot be separated therefrom without breaking the
material or deterioration of the object are deemed immovable by
incorporation or res vinta.
Q: What are the requisites for machinery to be considered real property?

A:
1. The industry or work must be carried on in a building or on a piece of land;
2. Must be placed by the owner of the tenement or his agent;
3. Must tend directly to meet the needs of the said industry or work;
4. Must be essential and principal to the industry or work, and not merely incidental
thereto.
Q: The Municipality of Baliwag donated a portion of the public park that it owns
to a civic organization who undertook to build a drug rehabilitation center for the
benefit of drug dependents in the municipality. The donation was assailed because
the public park is a property for public use. Decide.
A: The donation is void. Property for public use in the provinces, cities and
municipalities (towns) are governed by the same rules as property of public
dominion of same character. Hence, property for public use of political
subdivisions are outside the commerce of man. As long as they are devoted for
public use or intended for public use, they are not subject to ordinary
contracts (Municipality of Cavite vs. Rojas, 30 Phil. 602; Capistrano vs. Mayor of
Manila [C.A.], 44 O.G. 2798); they cannot be donated (Harty vs. Municipality of
Victoria, 13 Phil. 152); they cannot be attached or levied upon on execution [Tan
Toco vs. Muncipal Council of Iloilo, 49 Phil. 52; Municipality of Paoay vs. Manaois,
86 Phil. 629). See also: Villanueva vs. Castaneda, 154 SCRA 142; Espiritu vs.
Municipal Council of Pozorrubio, 102 Phil. 867.]
Q: Robert was the owner of an agricultural land with no access to a public

road. He had been passing through the land of Ralph with the latter’s
acquiescence for over 20 years. Subsequently, Robert subdivided his property
into 20 residential lots and sold them to different persons. Ralph blocked the
pathway and refused to let the buyers pass through his land.
a. Did Robert acquire an easement of right of way? Explain.

b. Could Ralph close the pathway and refuse to let the buyers pass? Give
reasons.
c. What are the rights of the lot buyers, if any? Explain.
Answer:
A. No, Robert did not acquire an easement of right of way. An easement

of right of way is discontinuous in nature — it is exercised only if a man
passes over somebody's land. Under Article 622 of the Civil Code, discontinuous
easements, whether apparent or not, may only be acquired by virtue of a title. The
Supreme Court had ruled that an easement of right of way being discontinuous in
nature is not acquirable by prescription. Further, possession of the easement by
Don is only permissive, tolerated or with the acquiescence of Ernie. It is
settled in jurisprudence that a permissive use of a road over the land of
another, no matter how long continued, will not create an easement of way by
prescription.
B. Yes, Ernie could close the pathway on his land. Don has not acquired an
easement of right of way either by agreement or by judicial grant. Neither did
the buyers. Thus, establishment of a road or unlawful use of the land of Ernie
would constitute an invasion of possessory rights of the owner, which under
Article 429 of the Civil Code may be repelled or prevented. Ernie has the right to
exclude any person from the enjoyment and disposal of the land. This is an
attribute of ownership that Ernie enjoys.
C. Prior to the grant of an easement, the buyers of the dominant estate have no
other right than to compel grant of easement of right of way. Since the properties of
the buyers are surrounded by other immovables and has no adequate outlet to a
public highway and the isolation is not due to their acts, buyers may demand an
easement of a right of way provided proper indemnity is paid and the right of way
demanded is the shortest and least prejudicial to Ernie.
Q: A drug lord and his family reside in a small bungalow where they sell
shabu and other prohibited drugs. When the police found the illegal trade,
they immediately demolished the house because according to them, it was a
nuisance per se that should be abated. Did the police act correctly? Explain.
Answer: No, the demolition cannot be sustained. The house is not a nuisance
per se or at law as it is not an act, occupation, or structure which is a
nuisance at all times and under any circumstances, regardless of location or
surroundings. Since the demolished house was not a nuisance during the times that
it was not being used for selling drugs, it cannot be considered as nuisance per se.
Therefore, since it is merely a nuisance per accidens, judicial intervention is
necessary for its abatement.
It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it

may not be summarily abated. Aside from the remedy of summary abatement which
should be taken under the parameters stated in Articles 704 (for public nuisances)
and 706 (for private nuisances) of the Civil Code, a private person whose property
right was invaded or unreasonably interfered with by the act, omission,
establishment, business or condition of the property of another may file a civil
action to recover personal damages. Abatement may be judicially sought through a
civil action therefor if the pertinent requirements under the Civil Code for summary
abatement, or the requisite that the nuisance is a nuisance per se, do not concur. To
note, the remedies of abatement and damages are cumulative; hence, both may be
demanded. [LINDA RANA vs. TERESITA LEE WONG, et al., G.R. No. 192861; G.R.
No. 192862, June 30, 2014, J. Perlas-Bernabe]
Q: What is the Principle of Self-Help? Can a land owner eject a squatter

on his property without any court order pursuant to the principle of “self-
help”?
A: This is the principle which authorizes an owner or lawful possessor of a

property to use reasonable counter-force to prevent or stop another person
from taking the former’s property. The force must be reasonably necessary to
repel the unlawful physical invasion or usurpation of property.
But a land owner cannot use the principle of self-help to eject a squatter without
any court order. Art. 433 of the Civil Code provides:. Actual possession under
claim of ownership raises a disputable presumption of ownership. The true
owner must resort to judicial process for the recovery of the property. A
person who is in actual possession of a property and who at the same time claims
ownership over it is presumed to be the owner thereof (See Perez vs. Mendoza, 65
SCRA 481). Even assuming that the squatter has no claim of ownership, still the
land lord cannot eject the squatter without any court order. Article 536 provides:
“In no case may possession be acquired through force or intimidation as long
as there is a possessor who objects thereto. He who believes that he has an
action or a right to deprive another of the holding of a thing, must invoke the
aid of the competent court, if the holder should refuse to deliver the thing.”
Q: While strolling in a certain street, Ricky finds a purse containing
P1,000. Does he become the owner thereof by his mere possession? How can
he become the owner of the P1,000? Can that be considered a hidden
treasure. Explain.
Answer: No. Mere possession does not make Ricky the owner thereof. If Ricky
knows the owner of the purse, there is no way by which he can become the owner of
the P1,000 because according to the law, he must return the purse including its
contents to such owner. If the owner is unknown, Ricky should immediately
deposit the movable with the mayor of the place where the finding took place.
There shall then be a public announcement of the finding for 2 consecutive weeks.
Six months from the publication having elapsed without the owner having
appeared, the thing found shall be awarded to Ricky, after reimbursement of the
expenses. (Art. 719)
If the owner should appear in time, he shall be obliged to pay Ricky, as a reward,
1/10 of the amount found. (Art. 720)
(Note: the money found cannot be considered a “treasure” because it was not
“hidden and unknown”. Art. 439 states “By treasure is understood, for legal
purposes, any hidden and unknown deposit of money, jewelry or other precious
objects, the lawful ownership of which does not appear.” Hence, the rules on hidden
treasure do not apply.)
VI. OBLIGATIONS & CONTRACTS
Q: What are the requisites before a party can be considered in default of

his obligation?
A: There are three requisites necessary for a finding of default. First, the
obligation is demandable and liquidated; second, the debtor delays performance;
and third, the creditor judicially or extra-judicially requires the debtor’s
performance. [GENERAL MILLING CORPORATION v. SPS. LIBRADO RAMOS
and REMEDIOS RAMOS G.R. No. 193723, July 20, 2011, Velasco, Jr., J.]
There are four instances when demand is not necessary to constitute the debtor in
default: (1) when there is an express stipulation to that effect; (2) where the law so
provides; (3) when the period is the controlling motive or the principal inducement
for the creation of the obligation; and (4) where demand would be useless. In the
first two paragraphs, it is not sufficient that the law or obligation fixes a date for
performance; it must further state expressly that after the period lapses, default will
commence. [RODRIGO RIVERA vs. SPOUSES SALVADOR CHUA AND VIOLETA
S. CHUA, G.R. No. 184458 (consolidated), January 14, 2015, J. Perez]
Q: Par. 15 of the Contract of Reclamation states: "the project is estimated

to be completed in six (6) years." Is this a day certain? Is this an obligation
with a resolutory period?
A: NO. Obligations with a resolutory period take effect at once, but terminate
upon arrival of the day certain. A day certain is understood to be that which must
necessarily come, although it may not be known when. If the uncertainty consists in
whether the day will come or not, the obligation is conditional. In the instant case, a
plain reading of the Contract of Reclamation reveals that the six (6)-year period
provided for project completion, or termination of the contract was a mere estimate
and cannot be considered a period or a "day certain" in the context of Art. 1193. To
be clear, par. 15 of the Contract of Reclamation states: "the project is estimated to be
completed in six (6) years." The lapse of six (6) years from the perfection of the
contract did not, make the obligation to finish the reclamation project demandable,
such as to put the obligor in a state of actionable delay for its inability to finish.
Thus, F.F. Cruz cannot be deemed to be in delay. [ROWENA R. SALONTE vs.
COMMISSION ON AUDIT, et al, G.R. No. 207348, August 19, 2014, J. Velasco,
Jr.]
Q: Differentiate an option contract from a right of first refusal.
A: An option contract is a preparatory contract in which one party grants to

another, for a fixed period and at a determined price, the privilege to buy or sell, or
to decide whether or not to enter into a principal contract. It binds the party who
has given the option not to enter into the principal contract with any other person
during the period designated, and within that period, to enter into such contract
with the one whom the option was granted, if the latter should decide to use the
option. It is a separate and distinct contract.
In a right of first refusal, while the object may be determinate, the exercise of the
right would be dependent not only on the grantor’s eventual intention to enter into
a binding juridical relation with another but also on terms, including the price, that
are yet to be firmed up.
Q: Distinguish option money from earnest money.
A: OM is money given as distinct consideration for an option contract, while

EM forms part of the purchase price; OM applies to a sale not yet perfected,
while EM is given only when there is already a sale; In OM the prospective buyer
is not required to buy; while in EM when it is given, the buyer is bound to pay the
balance; In OM, if buyer does not decide to buy, it cannot be recovered. While in
EM if the sale did not materialize it must be returned.
Q: Distinguish a contract to sell from a conditional contract of sale.
A: In a contract to sell, upon the fulfillment of the suspensive condition which is

the full payment of the purchase price, ownership will not automatically transfer to
the buyer although the property may have been previously delivered to him. The
prospective seller still has to convey title to the prospective buyer by entering into a
contract of absolute sale.
A contract to sell is different from a conditional contract of sale where the seller
may likewise reserve title to the property subject of the sale until the fulfillment of a
suspensive condition, because in a conditional contract of sale, the first element of
consent is present, although it is conditioned upon the happening of a contingent
event which may or may not occur. If the suspensive condition is not fulfilled, the
perfection of the contract of sale is completely abated (cf. Homesite and Housing
Corp. vs. Court of Appeals, 133 SCRA 777 [1984]). However, if the suspensive
condition is fulfilled, the contract of sale is thereby perfected, such that if there had
already been previous delivery of the property subject of the sale to the buyer,
ownership thereto automatically transfers to the buyer by operation of law without
any further act having to be performed by the seller.
VII. SUCCESSION
Q: Testator died leaving an estate worth P1,000,000.00. He left an indebtedness

of P300,000.00. When still alive, he gave a donation of P100,000.00 to “A,” a
legitimate son. Testator is survived by four legitimate children, “A,” “B,” “C” and “D.”
Divide his estate.
Answer:
P1,000,000.00 —value of property of testator at the time of his death;

P300,000.00 — to be deducted from said value of property;
P— 700,000.00 net value of hereditary estate.
P100,000.00 — donation to “A” is to be added being collationable.
Total hereditary Estate is P800,000.00.
Legitime of “A,” “B,” “C” and “D” is P400,000.00.
Free Portion is P400,000.00.
“A,” “B,” “C” and “D” will get P100,000.00 each for their legitimes.
Since “A” got already an advance legitime of P100,000.00 he will not receive
anything anymore as legitime.
Q: Is a contract of guaranty extinguished by death?
A: No, because a contract of guaranty does not fall in any of the exceptions
under Art. 1311. A guarantor’s obligation is basically to pay the creditor if the
principal debtor cannot pay. Payment does not require any personal qualifications.
The personal qualifications become relevant only at the time the obligation is
incurred but not so at the time of discharge or fulfillment of the obligation.
Q: Is an action to quiet title extinguished by death?
A: No, an action to quiet title is not extinguished by the death of the decedent,
it being a patrimonial right. Hence, the heirs have the right to be substituted to the
action even before their having declared as heirs.
Q. State the rules on soundness of mind.
ANS: (1) To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if
the testator was able at the time of making the will, to know the nature of the estate
to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. (Art. 799, NCC).
(2) The law presumes that every person is of sound mind, in the absence of
proof to the contrary. The burden of proof that the testator was not of sound mind
at the time of making his dispositions is on the person who opposes the probate of
the will; but if the testator, one month, or less, before making his will was publicly
known to be insane, the person who maintains the validity of the will must prove
that the testator made it during a lucid interval. (Art. 800, NCC; See also Torres vs.
Lopez, 48 Phil. 722).
Q: The Alex and Michelle had three (3) children. Michelle later obtained a
judgment of nullity of marriage. Their absolute community of property having been
dissolved, they delivered P1 million to each of their 3 children as their presumptive
legitimes. Alex later re-married and had two (2) children by his second wife Lanie.
Alex and Lanie, having successfully engaged in business, acquired real properties.
Alex later died intestate.
Who are Alex’s legal heirs and how will his estate be divided among them?
What is the effect of the receipt by Alex’s 3 children by his first marriage of their
presumptive legitimes on their right to inherit following Alex’s death?
Suggested Answer:
A. If the ground of nullity is psychological incapacity:
3 children of first marriage – 1/6th of the estate each

2 children of second marriage – 1/6th of the estate each
Surviving second spouse – 1/6th of the estate
B. If the ground of nullity is not psychological incapacity:
2 legitimate children of second marriage – 1/4th of the estate each

Surviving second spouse – 1/4th of the estate
3 illegitimate children of first marriage – 1/12th of the estate each
The legitime of an illegitimate child is supposed to be ½ of the legitime of a
legitimate child or 1/8th of the estate. But the estate will not be sufficient to pay the
said legitimes of the 3 illegitimate children because only ¼ of the estate is left after
paying the legitime of the surviving spouse which is preferred. Hence, the remaining
¼ of the estate shall be divided among the 3 illegitimate children.
C. In the distribution of Alex’s estate, one-half of the presumptive legitime

received by the three children of the first marriage shall be collated to Alex’s estate
and shall be imputed as an advance on their respective inheritance from Alex. Only
half of the presumptive legitime is collated to the estate of Peter because the other
half shall be collated to the estate of his first wife.
Q: What is the Principle of Instanter?
A: The express revocation of the 1st will renders it void because the revocatory clause
of the 2nd will, not being testamentary in character, operates to revoke the 1 st will
instantly upon the execution of the will containing it.
Q. May An Unborn Child Be Instituted As An Heir?
A: It depends. A child already conceived at the time of death of the decedent is

capable of succeeding, provided, it be born later under the condition prescribed in
Article 41 of the Code. Otherwise, the institution is void because the fetus did not
become a person.
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother’s womb. However, if the fetus had an intra-
uterine life of less than seven months, it is not deemed born if it dies within twenty-
four hours after its complete delivery from the maternal womb. (New Civil Code)
Q: Can the testator institute as an heir an unknown person?

A: No.
Art. 845. Every disposition in favor of an unknown person shall be void,
unless by some event or circumstance his identity becomes certain. However, a
disposition in favor of a definite class or group of persons shall be valid.
Example: A testator provided in his will—“I bequeath my property

(identified) to the Bar topnotcher of the year immediately following my death.”
Here, the heir is unknown but he will be identified later when the results of the Bar
Examinations for the year indicated are released.
Q: Can the testator institute as an heir a class or group of persons?

A: Yes. (See Art. 845)
A disposition in favor of a definite class or group of persons is allowed by law.
Example: “I bequeath One Million Pesos to all honor graduates of the Faculty of
Civil Law, University of Santo Tomas from 1995 to year 2000.” The institution is
valid provided the graduates are not incapacitated at the death of the testator.
Q: What Classes Or Groups Can Be Instituted As Heirs?
A:
1. Art. 848—Brothers and sisters, some of the full blood, others half blood.
2. Art. 849—A person and his children.
3. Art. 959—Testator’s relatives (nearest in degree).
4. Art. 1030—The poor in general living in the domicile of the testator or
the poor in a definite locality.
Q: Distinguish Preterition From Disinheritance.—

A:
1. In preterition, the compulsory heir is deprived of his legitime by omission; thus,
the deprivation is tacit; in disinheritance, the deprivation is express.
2. Preterition may be voluntary or involuntary; disinheritance is always voluntary.
3. In preterition, the law presumes there is an oversight or mistake committed by
the testator; in disinheritance there is some legal cause.
4. In preterition of a compulsory heir in the direct line, the omitted heir gets both
his legitime and his share in the free portion not disposed of by devises or legacies.
In a valid disinheritance, the heir is totally excluded from the hereditary estate. If
the disinheritance is defective, that is, ineffective, the heir is given merely his
legitime.
5. In preterition, nullity of institution of heir is total; in defective disinheritance,
nullity of institution of heir is only partial.
Q: Is an adopted child considered a compulsory heir?

A: YES.
A legally adopted child is raised by law to the level of a legitimate child and
acquires the reciprocal rights and obligations arising from the relation-ship of
parent and child. But an extrajudicial adoption is not valid and legal (Santos-Yñigo
vs. Republic, 95 Phil. 244; Cabatbat-Lim vs. IAC, 166 SCRA 451 cited in Manuel vs.
Ferrer, 247 SCRA 482).
An adopted child is considered a legitimate child of the adopting parent or

parents with all the rights appurtenant to one legitimate child. Thus, he succeeds as
a legitimate child. If an adopted child is preterited in a will, the institution of heirs is
void (Art. 854, NCC; See also Art. 979, NCC and Art. 189, Family Code; Acain vs. IAC,
155 SCRA 100).
Q: May an adopted child represent the adopter in the inheritance of the

adopter’s parents?
A: YES.
Under the old rule, adoption is personal between the adopted and the
adopting parents; their relationship does not go beyond them. The children of the
adopted child are not considered heirs of the adopting parent or parents nor vice-
versa. However, it appears now that the adopted may represent the adopter in
the inheritance of the latter’s parents. Section 17, R.A, No. 8552 -The Domestic
Adoption Law of 1998] expressly accorded the adopter and the adoptee in case of
intestate succession reciprocal rights of succession without distinction from
legitimate filiation. Article 189 of the Family Code further declared that “both
(referring to the adopters and adopted) shall acquire reciprocal rights and
obligations arising from the relationship of parent and child.”
Q: If a will is executed by a testator who is a Filipino citizen, what law will

govern if the will is executed in the Philippines? What law will govern if the
will is executed in another country? Explain your answers.
A:
If a will is executed by a testator who is a Filipino citizen, Philippine law will govern
the formalities or extrinsic validity if the will is executed in the Philippines. If the
will is executed in another country, then the formalities shall be governed by the
law of the place where the will is executed. This is pursuant to Article 17 of the Civil
Code or the principle of “lex loci celebrationis.”
On the other hand, the intrinsic validity of the will shall be governed by the national
law of the decedent, regardless of where the will was executed (here or abroad).
Under Article 16 of the Civil Code, intestate or testamentary succession, both with
respect to the order of succession, amount of successional rights and to the intrinsic
validity of the testamentary provisions shall be regulated by the national law of the
person whose succession is under consideration. (Art. 16[2], NCC). The capacity to
succeed is also governed by the national law of the decedent. (Art. 1039, NCC).
Q: If a will is executed by a foreigner, for instance, a Japanese national

residing in the Philippines, what law will govern if the will is executed in the
Philippines? And what law will govern if the will is executed in Japan, or some
other country, for instance, in the US? Explain your answers.
A:
The same rule will apply to foreigners. If a will is executed by a foreigner, the
formalities shall be governed by the law of the place where the will is executed.
This is pursuant to Article 17 of the Civil Code or the principle of “lex loci
celebrationis.” On the other hand, the intrinsic validity of the will shall be governed
by the national law of the decedent, regardless of where the will was executed (here
or abroad).
A will executed by a foreigner abroad produces effect in the Philippines if made

with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those
which this Code prescribes. (Art. 816, NCC). Proof that the will conforms to the
laws mentioned is imperative. (Salud Teodoro Vda. De Perez vs. Hon. Tolete, 52
SCAD 46, G.R. No. 76714, June 2, 1994).
VIII. SALE & LEASE
Q: A leased a parcel of land to B for a period of two years. The lease
contract did not contain any express prohibition against the assignment of
the leasehold or the subleasing of the leased premises. During the third year
of the lease, B subleased the land to C. In turn, C, without A’s consent,
assigned the sublease to D.
A then filed an action for the rescission of the contract of lease on the
ground that B has violated the terms and conditions of the lease agreement.
If you were the judge, how would you decide the case, particularly with
respect to the validity of:
(i) B’s sublease to C? and

(ii) C’s assignment of the sublease to D?
(iii) Explain your answers.
ANSWER:
A. B’s sublease to C is valid. Although the original period of two years for the
lease contract has expired, the lease continued with the acquiescence of the lessor
during the third year. Hence, there has been an implied renewal of the contract of
lease. Under Art. 1650 of the Civil Code, the lessee may sublet the thing leased, in
whole or in part, when the contract of lease does not contain any express
prohibition (Arts. 1650, 1670, CC). A’s action for rescission should not prosper on
this ground.
B. C’s assignment of the sublease to D is not valid. Under Art. 1649 of the CC,
the lessee cannot assign the lease without the consent of the lessor, unless there is a
stipulation to the contrary. There is no such stipulation in the contract. If the law
prohibits assignment of the lease without the consent of the lessor, all the more
would the assignment of a sublease be prohibited without such consent. This is a
violation of the contract and is a valid ground for rescission by A.
Q. Marvin offered to construct the house of Carlos for a very reasonable price
of P900, 000.00, giving the latter 10 Days within which to accept or reject the
offer. On the fifth day before Carlos could make up his mind. Marvin
withdrew his offer. What is the effect of the withdrawal of Marvin’s offer?
ANSWER: The withdrawal of Marvin’s offer is valid because there was no

consideration paid for the option. An option is a separate contract from the contract
which is the subject of the offer, and if not supported by any consideration, the
option contract is not deemed perfected. Thus, Marvin may withdraw the offer at
any time before acceptance of the offer.
Q: In 1992, A sold a piece of land to B who delivered a check to A as full

payment for the land. The land was never delivered to B. In 2001, B filed an
action for specific performance. A opposed the action alleging that the sale
was never consummated as he did not encash the check given by B in
payment of the full purchase price of the land. Is the contention of A correct?
Answer: No. The contract of sale is valid. While it is true that delivery of a
check produces the effect of payment only when it is cashed, pursuant to Article
1249 of the Civil Code, the rule is otherwise if the debtor is prejudiced by the
creditor’s unreasonable delay in presentment. The acceptance of a check implies an
undertaking of due diligence in presenting it for payment and if he from whom it is
received sustains loss by want of such diligence, it will be held to operate as actual
payment of the debt or obligation for which it was given. This is in harmony with
Article 1249 under which payment by way of a check or other negotiable instrument
is conditioned on its being cashed, except when through the fault of the creditor,
the instrument is impaired. (Papa v. A.U. Valencia, January 23, 1998)
Q: The parties entered into a contract of lease for one (1) year with option
to purchase. The contract of lease expired without the lessee purchasing the
property. But the lessee remained in possession thereof. Hence, there was an
implicit renewal of the contract of lease on a monthly basis. Will the implied
renewal of the lease carry with it the revival of the option to purchase the
property?
A: NO. The other terms of the original contract of lease which are revived in the
implied new lease under Article 1670 of the New Civil Code are only those terms
which are germane to the lessee's right of continued enjoyment of the property
leased. Therefore, an implied new lease does not ipso facto carry with it any implied
revival of private respondent's option to purchase (as lessee thereof) the leased
premises. The provision entitling the lessee the option to purchase the leased
premises is not deemed incorporated in the impliedly renewed contract because it is
alien to the possession of the lessee. The lessee’s right to exercise the option to
purchase expired with the termination of the original contract of lease for one year.
[Dizon v. CA, G.R. No. 124741. January 28, 2003, Velasco, J.]
Q: What is the rule on double sale?

A:
Article 1544. If the same thing should have been sold to different vendees, the
ownership shall be transferred to the person who may have first taken possession
thereof in good faith, if it should be movable property. Should it be immovable
property, the ownership shall belong to the person acquiring it who in good faith
first recorded it in the Registry of Property. Should there be no inscription, the
ownership shall pertain to the person who in good faith was first in the possession;
and, in the absence thereof, to the person who presents the oldest title, provided
there is good faith.
After the sale of a realty by means of a public instrument, the vendor, who resells it
to another, does not transmit anything to the second vendee, and if the latter, by
virtue of this second sale, takes material possession of the thing, he does it as mere
detainer, and it would be unjust to protect this detention against the rights of the
thing lawfully acquired by the first vendee.
X. DAMAGES
Q: Arthur sold his Isuzu MU-X to Benjo for P1 Million. Benjo took the vehicle
but did not register the sale with the Land Transportation Office. He allowed his son
Carlitos, a minor who did not have a driver's license, to drive the car to buy pan de
sal in a bakery. On the way, Carlitos, while driving in a reckless manner, sideswiped
Matt who was then riding a bicycle. As a result, he suffered serious physical injuries.
Matt filed a criminal complaint against Carlitos for reckless imprudence resulting in
serious physical injuries.
A. Can Dennis file an independent civil action against Carlos and his father
Benjamin for damages based on quasi-delict? Explain.
B. Assuming Dennis' action is tenable, can Benjamin raise the defense he is not
liable because the vehicle is not registered in his name? Explain.
Answer:
A. Yes, Matt can file an independent civil action against Carlitos and his father for
damages based on quasi-delict there being an act or omission causing damage to
another without contractual obligation. Likewise, Section 1 of Rule 111 of the
2000 Rules on Criminal Procedure, provides that what is deemed instituted with
the criminal action is only the action to recover civil liability arising from the act or
omission punished by law. An action based on quasi-delict is no longer
deemed instituted and may be filed separately.
B. No, Benjamin cannot raise the defense that the vehicle is not registered in his
name. His liability, vicarious in character, is based on Article 2180 because he is the
father of a minor who caused damage due to negligence. While the suit will
prosper against the registered owner, it is the actual owner of the private vehicle
who is ultimately liable. The purpose of car registration is to reduce difficulty in
identifying the party liable in case of accidents.
Q: Jayson and his classmates were conducting a science experiment about fusion of
sulphur powder and iron fillings under the tutelage of Tabugo, the subject teacher
and employee of St. Joseph College. Tabugo left her class while the experiment was
ongoing without having adequately secured the students from any untoward
incident or occurrence. In the middle of the experiment, Jayson checked the result
of the experiment by looking into the test tube with magnifying glass and it was
moved towards his eyes. At that instance, the compound spurted from the test tube
and several particles hit Jayson’s eyes. His left eye was chemically burned, for which
he had to undergo surgery and spend for medication. Jayson filed a complaint for
damages against the school and Tabugo. Can the said school and its teacher,
Tabugo, be held liable for the unfortunate incident of Jayson?
A: Yes. The proximate cause of the student’s injury was the concurrent failure of
petitioners to prevent the foreseeable mishap that occurred during the conduct of
the science experiment. Petitioners were negligent by failing to exercise the higher
degree of care, caution and foresight incumbent upon the school, its administrators
and teachers. Art. 218 of the FC, in relation to Art. 2180 of the NCC, bestows special
parental authority on a school, its administrators and teachers, or the individual,
entity or institution engaged in child care, and these persons have 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.
In this case, the petitioners’ negligence and failure to exercise the requisite degree of
care and caution was demonstrated by the following: (i) petitioner school did not
take affirmative steps to avert damage and injury to its students although it had full
information on the nature of dangerous science experiments conducted by the
students during class; (ii) petitioner school did not install safety measures to protect
the students who conduct experiments in class; (iii) petitioner school did not
provide protective gears and devices, specifically goggles, to shield students from
expected risks and dangers; and (iv) petitioner Tabugo (the teacher) was not inside
the classroom the whole time her class conducted the experiment, specifically,
when the accident involving the student occurred (St. Joseph’s College v.
Miranda, G.R. No. 182353, June 29, 2010).
Q: What is the doctrine of Parens Patriae?

A:
The State as parens patriae (father of his country) is obliged to minimize the risk of
harm to those who because of their minority (or incapacities) are as yet unable to
take care of themselves fully. Those of tender years deserve its utmost protection
(People vs. Baylon, 57 SCRA 115). If there is no margin and allowance given to the
incapacitated, disadvantaged or handicapped, inequity will arise in matters
involving them.
Generally, when laws are doubtful, the doubt is resolved in favor of the weak or
disadvantaged. This is specially true in labor laws where in case of doubt, the laws
are interpreted in favor of the laborer or employee (See: Euro-Linea Phils., Inc. vs.
NLRC, 156 SCRA 78; Abella vs. NLRC, 152 SCRA 140; Bautista vs. Murillo, 4 SCRA
175).
Examples of parens patriae provisions under the Civil Code:
Art. 1332. When one of the parties is unable to read, or if the contract is in a
language not understood by him, and mistake or fraud is alleged, the person
enforcing the contract must show that the terms thereof have been fully explained
to the former.
Art. 1364. When through the ignorance, lack of skill, negligence or bad faith on
the part of the person drafting the instrument or of the clerk or typist, the
instrument does not express the true intention of the parties, the courts may order
that the instrument be reformed.
Art. 1399. When the defect of the contract consists in the incapacity of one of the
parties, the incapacitated person is not obliged to make any restitution except
insofar as he has been benefited by the thing or price received by him.
Art. 1415. Where one of the parties to an illegal contract is incapable of giving
consent, the courts may, if the interest of justice so demands, allow recovery of
money or property delivered by the incapacitated person.
Art. 1418. When the law fixes, or authorizes the fixing of the maximum number of
hours of labor, and a contract is entered into whereby a laborer undertakes to work
longer than the maximum thus fixed, he may demand additional compensation for
service rendered beyond the time limit.
Art. 1419. When the law sets, or authorizes the setting of a minimum wage for
laborers, and a contract is agreed upon by which a laborer accepts a lower wage, he
shall be entitled to recover the deficiency.
Q: What is the rule against thoughtless extravagance?

A:
Art. 25 of the Civil Code provides: ”Thoughtless extravagance in expenses for
pleasure or display during a period of acute public want or emergency may be
stopped by order of the courts at the instance of any government or private
charitable institution.”
The requisites for the filing of actions to stop thoughtless extravagance are:
1. There is thoughtless extravagance in expenses;

2. The extravagance is for pleasure or display;
3. There is a period of acute public want or emergency;
4. The case is filed in court by a governmental institution or private charitable
institution.
Q: Distinguish nominal from temperate damages.

A:
Nominal damages are only awarded to vindicate a right that has been violated and
not to indemnify a party for any loss suffered by the latter. Temperate or
moderate damages may be recovered when the court finds that some pecuniary
loss has been suffered but its amount cannot, from the nature of the case, be
provided with certainty. Considering that it has been established that respondent
suffered a loss, even if the amount thereof cannot be proven with certainty, the
what should have been awarded was temperate damages. [SEVEN BROTHERS
SHIPPING CORPORATION vs. DMC-CONSTRUCTION RESOURCES, INC.,
G.R. No. 193914. November 26, 2014, C.J. Sereno]
Q: What is the formula for computing loss of earning capacity?

A:
The formula for the computation of loss of earning capacity is as follows:
Net earning capacity = Life Expectancy x [Gross Annual Income - Living Expenses
(50% of gross annual income)], where life expectancy = 2/3 (80 - the age of the
deceased). [PEOPLE OF THE PHILIPPINES vs. BENJAMIN CASAS Y VINTULAN,
G.R. No. 212565, February 25, 2015, J. Perlas-Bernabe]
Q: If a building collapses and caused damages, would the
proprietor/owner, and/or architect of the building be held responsible?
Explain when each may be held responsible.
Answer:
The proprietor of a building or structure is responsible for the damages resulting

from its total or partial collapse, if it should be due to the lack of necessary repairs
(Art. 2190, NCC).
Proprietors shall also be responsible for damages caused:

(i) By the explosion of machinery which has not been taken care of with due
diligence, and the inflammation of explosive substances which have not been
kept in a safe and adequate place;
(ii) By excessive smoke, which may be harmful to persons or property;
(iii) By the falling of trees situated at or near highways or lanes, if not caused by
force majeure;
(iv) By emanations from tubes, canals, sewers or deposits of infectious matter,
constructed without precautions suitable to the place (Art. 2191, NCC).
As a general rule, the owner of the building is the one liable for damages
when a building collapses. However, the engineer or architect who drew up the
plans and specifications for the building is liable for damages if within 15 years from
the completion of the structure, the same should collapse by reason of a defect in
those plans and specifications, or due to the defects in the ground.
The contractor may also be held liable if the edifice falls, within the same
period, on account of defects in the construction of the use of materials of inferior
quality furnished by him, or due to any violation of the terms of the contract (Art.
1723, NCC).

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2017 LAST MINUTE TIPS IN CIVIL LAW

By: Enrique V. dela Cruz, Jr.

I. EFFECT & APPLICATION OF LAWS

Q: After conducting preliminary investigation, a panel composed of state

II. CONFLICT OF LAWS

A: NO. Forum non conveniens relates to forum, not to the choice of

Q: Distinguish “Choice of Law” from “Forum non conveniens.”

A: Choice of law provisions are an offshoot of the fundamental principle of

Likewise, contractual choice of law is not determinative of jurisdiction. Stipulating

Q: May a husband or wife of a prior marriage file a petition to recognize a

Q: What is the proper procedure for a foreign decree of divorce to be

A: It may be made in a special proceeding for cancellation or correction of entries in

III. PERSONS & FAMILY RELATIONS

A: An unborn child may be designated as the beneficiary in the insurance

Petitioner, however, forgets that he is simply invoking different grounds for

As a result of Ricardo's misrepresentation, she was deprived of any notice of and

Q: How do you establish the filiation of illegitimate children?

A: The filiation of illegitimate children, like legitimate children, is established

Q: Can a Baptismal certificate be used as evidence to prove filiation?

A: YES. There is a prima facie case if a woman declares — supported by

Q: The petition for declaration of nullity of marriage filed by Crisanto against

A: Yes. The petitioner failed to overcome the so-called "tender-age

Q: Virginia Remo, a Filipino citizen, is married to Francisco Rallonza. In her

Q: Believing that a piece of land belonged to him, A erected thereon a

Q: May a co-owner sell his undivided share in a real property owned in

Q: In actions for right of way, what is the standard to be used? Is the

Q: Are trees movable or immovable property?

Q: Are Animals considered movable or immovable property?

Q: What is meant by Res Vinta?

A: Res Vinta.—These are immovables by incorporation and not by nature,

The rule is that everything attached to an immovable in a fixed manner, in

Q: What are the requisites for machinery to be considered real property?

Q: Robert was the owner of an agricultural land with no access to a public

a. Did Robert acquire an easement of right of way? Explain.

A. No, Robert did not acquire an easement of right of way. An easement

It is a standing jurisprudential rule that unless a nuisance is a nuisance per se, it

Q: What is the Principle of Self-Help? Can a land owner eject a squatter

A: This is the principle which authorizes an owner or lawful possessor of a

VI. OBLIGATIONS & CONTRACTS

Q: What are the requisites before a party can be considered in default of

Q: Par. 15 of the Contract of Reclamation states: "the project is estimated

Q: Differentiate an option contract from a right of first refusal.

A: An option contract is a preparatory contract in which one party grants to

Q: Distinguish option money from earnest money.

A: OM is money given as distinct consideration for an option contract, while

Q: Distinguish a contract to sell from a conditional contract of sale.

A: In a contract to sell, upon the fulfillment of the suspensive condition which is

Q: Testator died leaving an estate worth P1,000,000.00. He left an indebtedness

P1,000,000.00 —value of property of testator at the time of his death;

P— 700,000.00 net value of hereditary estate.

P100,000.00 — donation to “A” is to be added being collationable.

Total hereditary Estate is P800,000.00.

Legitime of “A,” “B,” “C” and “D” is P400,000.00.

Free Portion is P400,000.00.

Q: Is a contract of guaranty extinguished by death?

Q. State the rules on soundness of mind.

A. If the ground of nullity is psychological incapacity:

3 children of first marriage – 1/6th of the estate each