2006 BAR QUESTION AND ANSWERS

BAR QUESTIONS AND ANSWER ANSWERS NO. TOPIC

POLITICAL LAW
A law denying persons charged with crimes The law is invalid as it contravenes Section 13, 6 Rights of the Accused;
punishable by reclusion perpetua or death the right Article III of the 1987 Constitution which Right to Bail; Capital
to bail. (2%) provides that "all persons, except those charged Offense
with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided
by law." The accused may not be deprived of his
constitutional right to bail even if charged with a
capital offense where the evidence of guilt is not
strong.
Does a Permit to Carry Firearm Outside Residence No, it is not a property right under the due Due Process; Permit to
(PTCFOR) constitute a property right protected by process clause of the Constitution. Just like Carry Firearm Outside
the Constitution? (2.5%) ordinary licenses in other regulated fields, it may Residence
be revoked any time. It does not confer an
absolute right, but only a personal privilege,
subject to restrictions. A licensee takes his
license subject to such conditions as the
Legislature sees fit to impose, and may be
revoked at its pleasure without depriving the
licensee of any property (Chavez v. Romulo,
G.R. No. 157036, June 9, 2004).
An accused's right against self-incrimination is The best answer is c) when he is ordered to 7 Rights of the Accused; Self-
violated in the following cases: (5%) produce a sample of his handwriting to be used Incrimination
a. When he is ordered by the trial court to undergo a as evidence that he is the author of a letter
paraffin test to prove he is guilty of murder; wherein he agreed to kill the victim. Under
b. When he is compelled to produce his bankbooks Article HI, Section 17 of the 1987 Constitution,
to be used as evidence against his father charged "no person shall be compelled to be a witness
with plunder; against himself." Since the provision prohibits
 2006 BAR QUESTION AND ANSWERS

c. When he is ordered to produce a sample of his compulsory testimonial incrimination, it does not
handwriting to be used as evidence that he is the matter whether the testimony is taken by oral or
author of a letter wherein he agreed to kill the written means as either way it involves the USE
victim; OF INTELLECTUAL FACULTIES. The
d. When the president of a corporation is purpose of the privilege is to avoid and prohibit
subpoenaed to produce certain documents as proofs thereby the repetition and recurrence of
he is guilty of illegal recruitment. compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary
for his conviction (Bermudez v. Castillo, Per
Rec. No. 714-A, July 26, 1937; Beltran v.
Samson, G.R. No. 32025, September 23,1929).
CIVIL LAW
Tony bought a Ford Expedition from a car dealer Yes, Tony may file an action against Premium Quasi-Delict;
in Muntinlupa City. As payment, Tony issued a Bank for damages under Art. 2176. Even if Mismanagement of
check drawn against his current account with there exists a contractual relationship between Depositor’s Account
Premium Bank. Since he has a good reputation, Tony and Premium Bank, an action
the car dealer allowed him to immediately drive for quasi-delict may nonetheless prosper. The
home the vehicle merely on his assurance that his Supreme Court has consistently ruled that the
check is sufficiently funded. When the car dealer act that breaks the contract may also be a tort.
deposited the check, it was dishonored on the There is a fiduciary relationship between the
ground of "Account Closed." After an bank and the depositor, imposing utmost
investigation, it was found that an employee of diligence in managing the accounts of the
the bank misplaced Tony's account ledger. Thus, depositor. The dishonor of the check
the bank erroneously assumed that his account no adversely affected the credit standing of Tony,
longer exists. Later it turned out that Tony's hence, he is entitled to damages (Singson v.
account has more than sufficient funds to cover BPI,
the check. The dealer however, immediately filed G.R. No. L-24932, June 27, 1968; American
an action for recovery of possession of the vehicle Express International, Inc. v. IAC, G.R. No.
against Tony for which he was terribly humiliated 72383, November 9, 1988; Consolidated Bank
and embarrassed. Does Tony have a cause of and Trust v. CA, G.R. No. L-70766 November
action against Premium Bank? Explain. (5%) 9,1998)
 2006 BAR QUESTION AND ANSWERS

Under Article 2219 of the Civil Code, moral Immorality and dishonesty, per se, are not Moral Damages; Non-
damages may be recovered in the cases specified among those cases enumerated in Article 2219 Recovery Thereof
therein several of which are enumerated below. which can be the basis of an action for moral
Choose the case wherein you cannot recover damages. The law specifically mentions
moral damages. Explain. (2.5%) adultery or concubinage, etc. but not any and
a) A criminal offense resulting in physical every immoral act.
injuries
b) Quasi-delicts causing physical injuries
c) Immorality or dishonesty
d) Illegal search
e) Malicious prosecution

Spouses Biong and Linda wanted to sell their No, the suit will not prosper. The contract of Contract of Sale; Marital
house. They found a prospective buyer, Ray. sale was perfected when Linda and Ray agreed Community Property;
Linda negotiated with Ray for the sale of the on the object of the sale and the price [Art. Formalities
property. They agreed on a fair price of P2 1475, New Civil Code]. The consent of Linda
Million. Ray sent Linda a letter confirming his has already been given, as shown by her
intention to buy the property. Later, another agreement to the price of the sale. There is
couple, Bernie and Elena, offered a similar house therefore consent on her part as the consent
at a lower price of P 1.5 Million. But Ray need not be given in any specific form. Hence,
insisted on buying the house of Biong and Linda her consent may be given by implication,
for sentimental reasons. Ray prepared a deed of especially since she was aware of, and
sale to be signed by the couple and a manager's participated in the sale of the property (Pelayo
check for P2 Million. After receiving the P2 v. CA, G.R. No. 141323, June 8, 2005). Her
Million, Biong signed the deed of sale. However, action for moral and exemplary damages will
Linda was not able to sign it because she was also not prosper because the case does not fall
abroad. On her return, she refused to sign the under any of those mentioned in Art. 2219 and
document saying she changed her mind. Linda 2232 of the Civil Code.
filed suit for nullification of the deed of sale and ALTERNATIVE ANSWER:
for moral and exemplary damages against Ray. The suit will prosper. Sale of community
property requires written consent of both
spouses. The failure or refusal of Linda to affix
her signature on the deed of sale, coupled with
 2006 BAR QUESTION AND ANSWERS

her express declaration of opposing the sale

negates any valid consent on her part. The
consent of Biong by himself is insufficient to
effect a valid sale of community property (Art.
96, Family Code; Abalos v. Macatangay,
G.R. No. 155043, September 30, 2004).

A drug lord and his family reside in a small SUGGESTED ANSWER:

bungalow where they sell shabu and other No, the demolition cannot be sustained. The Nuisance; Family House;
prohibited drugs. When the police found the house is not a nuisance per se or at law as it is Not Nuisance per se
illegal trade, they immediately demolished the not an act, occupation, or structure which is a
house because according to them, it was a nuisance at all times and under any
nuisance per se that should be abated. Can this circumstances, regardless of location or
demolition be sustained? Explain. (5%) surroundings. A nuisance per se is a nuisance
in and of itself, without regard to
circumstances [Tolentino, p. 695, citing
Wheeler v. River Falls Power Co., 215 Ala.
655, 111 So. 907].

Alberto and Janine migrated to the United States If I were George's counsel, I would first Ejectment Suit;
of America, leaving behind their 4 children, one demand that Manny vacate the apartment. If
of whom is Manny. They own a duplex Manny refuses, I will file an ejectment suit.
apartment and allowed Manny to live in one of When Manny was allowed by his parents to
the units. While in the United States, Alberto occupy the premises, without compensation,
died. His widow and all his children executed an the contract of commodatum was created.
Extrajudicial Settlement of Alberto's estate Upon the death of the father, the contract was
wherein the 2- door apartment was assigned by extinguished as it is a purely personal
all the children to their mother, Janine. contract. As the new owner of the apartment
Subsequently, she sold the property to George. George is entitled to exercise his right of
The latter required Manny to sign a prepared possession over the same.
Lease Contract so that he and his family could
 2006 BAR QUESTION AND ANSWERS

continue occupying the unit. Manny refused to

sign the contract alleging that his parents allowed
him and his family to continue occupying the
premises.
If you were George's counsel, what legal steps
will you take? Explain. (5%)

TAXATION LAW
State and discuss briefly whether the following SUGGESTED ANSWERS: BIR; Compromise
cases may be compromised or may not be The following cases may still be compromised
compromised: (R.R. 30-02 [2002]) because of the taxpayer's
a) Delinquent accounts; financial incapacity to pay the tax due or the
b) Cases under administrative protest, after
assessment's doubtful validity:
issuance of the final assessment notice to the a) DELINQUENT ACCOUNTS may
taxpayer, which are still pending;
c) Criminal tax fraud cases; be compromised because there is no showing
d) Criminal violations already filed in court; that there is a duly-approved schedule of
e) Cases where final reports of reinvestigation or installment payments; and
reconsideration have been issued resulting in b) Cases under administrative protest, after
the reduction of the original assessment issuance of the final assessment notice to the
agreed to by the taxpayer when he signed the taxpayer, which are still pending.
required agreement form. (5%)
The following cases MAY NO LONGER BE
COMPROMISED (R.R. 30-02 [2002])
because the
taxpayer has not paid his taxes for reasons
other than his financial incapacity or the
doubtful validity of the assessment:
a) CRIMINAL TAX FRAUD cases as
may be determined by the Commissioner or his
authorized agents may not be compromised;
b) CRIMINAL VIOLATIONS ALREADY
FILED IN COURT so that the taxpayer will
 2006 BAR QUESTION AND ANSWERS

not profit from his fraud which would

encourage tax evasion; and
c) Cases where final reports of
reinvestigation or reconsideration have been
issued resulting in the reduction of the original
assessment agreed to by the taxpayer when he
signed the required agreement form. The
taxpayer is estopped from applying for a
compromise.

LABOR LAW
During their probationary employment, eight (8) SUGGESTED ANSWER: Dismissal; Just Cause;
employees were berated and insulted by their As a Labor Arbiter I will resolve the case in Probationary Employees;
supervisor. In protest, they walked out. The favor of the eight (8) probationary employees Rights
supervisor shouted at them to go home and never due to the following considerations:
to report back to work. Later, the personnel man- 1. Probationary employees also enjoy
ager required them to explain why they should security of tenure (Biboso v. Victoria
not be dismissed from employment for Milling, G.R. No. L- 44360, March 31,
abandonment and failure to qualify for the 1977).
positions applied for. They filed a complaint for 2. In all cases involving employees on
illegal dismissal against their employer. probationary status, the employer shall
As a Labor Arbiter, how will you resolve the make known to the employee at the time
case? (10%) he is hired, the standards by which he will
qualify for the positions applied for.
3. The filing of the complaint for illegal
dismissal effectively negates the
employer's theory of abandonment (Rizada
v. NLRC, G.R. No. 96982, September 21,
1999).
4. The order to go home and not to return to
 2006 BAR QUESTION AND ANSWERS

work constitutes dismissal from

employment.
5. The eight (8) probationary employees were
terminated without just cause and without
due process

In view of the foregoing, I will order

reinstatement to their former positions without
loss of seniority rights with full backwages,
plus damages and attorney fees.

Inday was employed by Herrera Home The Labor Code provides the following Dismissal; Due Process;
Improvements, Inc. (Herrera Home) as interior procedure to be observed in terminating the Requirements
decorator. During the first year of her services of an employee based on just causes as
employment, she did not report for work for one defined in Art. 283 of the Code:
month. Hence, her employer dismissed her from a. A written notice must be served on the
the service. She filed with the Labor Arbiter a employee specifying grounds for termination
complaint for illegal dismissal alleging she did and giving him opportunity to answer;
not abandon her work and that in terminating her The employee shall be given ample opportunity
employment, Herrera Home deprived her of her to defend himself, with or without the assistance
right to due process. She thus prayed that she be of
reinstated to her position.

Inday hired you as her counsel. In preparing the counsel; and c) A written notice of termination
position paper to be submitted to the Labor indicating the grounds to justify his termination
Arbiter, explain the standards of due process (Agabon v. NLRC, G.R. No. 158693, 17
which should have been observed by November 2004).
Herrera Home in terminating your
client's employment. (5%)
As a condition for her employment, Josephine I will file a criminal case against Owen for Employment; Women;
signed an agreement with her employer that she violation of RA. No. 7877, otherwise known as Sexual Harassment Act
 2006 BAR QUESTION AND ANSWERS

the "Anti- Sexual Harassment Act of 1995."

will not get married, otherwise, she will be
considered resigned or separated from the I will also file a separate and independent
service. action for damages against Owen. By reason of
the fact that the Company did not take
Josephine got married. She asked Owen, the immediate action thereon, I will include the
personnel manager, if the company can Company in the civil suit for damages and
reconsider the agreement. He told Josephine he make it jointly and severally liable with Owen.
can do something about it, insinuating some
sexual favors. She complained to higher ALTERNATIVE ANSWER:
authorities but to no avail. She hires you as her Aside from filing a criminal case against Owen
counsel. What action or actions will you take? for violation of the Sexual Harassment Law
Explain. (5%) (R.A. 7877) and a separate action for damages,
impleading the company, I will also file an
action for constructive dismissal against the
Company since the employee was placed in a
job atmosphere imposing oppressive work
conditions contrary to public policy and
morals.

Determine whether the following minors should It is absolutely Prohibited for any person Employment; Minors
be prohibited from being hired and from below 18 years of age to be employed in
performing their respective duties indicated hazardous work, harmful to health and safety
hereunder: (5%) (Sec. 3, Rule 12, Book 3, ties Implementing
A 17-year old boy working as miner at the the Labor Code), including construction work,
Walwadi Mining Corporation logging, firefighting, mining, quarrying,
stevedoring, dock work, deep sea fishing and
mechanized fishing (Sec. 8[2], Rule 1, Book
4, Rules Implementing the Labor Code).