I

a) Roberto was in Nikko Hotel when he bumped into a friend who was then on her way to a
wedding reception being held in said hotel. Roberto alleged that he was then invited by his friend
to join her at the wedding reception and carried the basket full of fruits which she was bringing
to the affair. At the reception, the wedding coordinator of the hotel noticed him and asked him,
allegedly in a loud voice, to leave as he was not in the guest list. He retorted that he had been
invited to the affair by his friend, who however denied doing so. Deeply embarrassed by the
incident, Roberto then sued the hotel for damages under Articles 19 and 21 of the Civil Code.
Will Roberto’s action prosper? Explain. (5%)

SUGGESTED ANSWER:

NO. Roberto’s action will not prosper. From the facts given in the problem, the wedding
coordinator did not abuse her right when she asked him to leave the wedding reception because
he was not in the guest list. Hotel Nikko could not be held liable for damages as its liable spring
from the liability of its employee (Nikko Hotel Manila Garden v. Reyes, G.R. No. 154259,
February 28, 2005).

b) Ricky donated P 1 Million to the unborn child of his pregnant girlfriend, which she accepted.
After six (6) months of pregnancy, the fetus was born and baptized as Angela. However, Angela
died 20 hours after birth. Ricky sought to recover the P 1 Million. Is Ricky entitled to recover?
Explain. (5%)

SUGGESTED ANSWER:

YES, Ricky is entitled to recover the P1,000,000.00. The NCC considers a fetus is considered a
person for purposes favorable to it provided it is born later in accordance with the provision of
the NCC. While the donation is favorable to the fetus, the donation did not take effect because
the fetus was not born in accordance with the NCC. To be considered born, the fetus that had an
intrauterine life of less than seven (7) months should live for 24 hours from its complete delivery
from the mother’s womb. Since Angela had an intrauterine life of less than seven (7) months but
did not live for 24 hours, she was not considered born and, therefore, did not become a person
(Art. 41). Not being a person, she has no juridical capacity to be a donee, hence, the donation to
her did not take effect. The donation not being effective, the amount donated may be recovered.
To retain it will be unjust enrichment.
 II

a) Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while Fortune
Tobacco Corporation is an entity engaged in the manufacture of different brands of cigarettes,
among which are "Champion," "Hope," and "More" cigarettes.

Fortune filed a complaint against Vinzons-Chato to recover damages for the alleged violation of
its constitutional rights arising from Vinzons-Chato’s issuance of Revenue Memorandum
Circular No. 37-934 (which re-classified Fortune cigarettes as locally manufactured with foreign
brands and thereby imposed higher taxes), which the Supreme Court later declared invalid.

Vinzons-Chato filed a Motion to Dismiss arguing that she cannot be held liable for damages for
acts she performed while in the discharge of her duties as BIR Commissioner. Is she correct?
Explain. (5%)

SUGGESTED ANSWER:

YES. As a general rule, a public officer is not liable for acts performed in the discharge of his
duties. The exceptions are when he acted with malice, bad faith, or gross negligence in the
performance of his duty, or when his act is in violation of the constitutionally guaranteed rights
and liberties of a person under Art. 32.

The public officer is not automatically considered to have violated the rights or liberties of a
person simply because the rule the public officer issued was declared invalid by the Court. The
complainant must still allege and prove the particular injury or prejudice he has suffered from the
violation of his constitutional right by the issuance of the invalidated rule.

The problem does not state any fact from which any malice, bad faith or gross negligence on the
part of Vinzons-Chato may be inferred, or the particular injury or prejudice the complainant may
have suffered as a result of the violation of his constitutional rights. Hence, she cannot be held
liable. The facts presented are similar to the facts of the case of Vinzons-Chato v. Fortune, (G.R.
No. 141309, December 23, 2008).

b) The petitioner filed a petition for declaration of nullity of marriage based allegedly on the
psychological incapacity of the respondent, but the psychologist was not able to personally
examine the respondent and the psychological report was based only on the narration of
petitioner. Should the annulment be granted? Explain. (5%)

SUGGESTED ANSWER:
The annulment cannot be guaranteed solely on the basis of the psychological report. For the
report to prove the psychological incapacity of the respondent, it is required that the psychologist
should personally examine the respondent and the psychological report should be based on the
psychologist’s independent assessment of the facts as to whether or not the respondent is
psychologically incapacitated.

III

a) Maria, wife of Pedro, withdrew P 5 Million from their conjugal funds. With this money, she
constructed a building on a lot which she inherited from her father. Is the building conjugal or
paraphernal? Reasons. (5%)

SUGGESTED ANSWER:

It depends. If the value of the building is more than the value of the land, the building is conjugal
and the land becomes conjugal property under Art. 120 of the Family Code. This is a case of
reverse accession, where the building is considered as the principal and the land, the accessory.
If, on the other hand, the value of the land is more than the value of the building, then the
ordinary rule of accession applies where the land is the principal and the building, the accessory.
In such case, the land remains paraphernal property and the building becomes paraphernal
propery.

Note: The rule on reverse accession is applicable only to the regime of conjugal partnership of
gains in both the Family Code and the New Civil Code. The foregoing answer assumes that CPG
is the regime of the property relations of the spouses.

b) Cipriano and Lady Miros married each other. Lady Miros then left for the US and there, she
obtained American citizenship. Cipriano later learned all about this including the fact that Lady
Miros has divorced him in America and that she had remarried there. He then filed a petition for
authority to remarry, invoking Par. 2, Art. 26 of the Family Code. Is Cipriano capacitated to
re-marry by virtue of the divorce decree obtained by his Filipino spouse who was later
naturalized as an American citizen? Explain. (5%)

SUGGESTED ANSWER:

YES, he is capacitated to re-marry. While the second paragraph of Article 26 of the FamilyCode
is applicable only to a Filipino who married a foreigner at the time of the marriage,the Supreme
Court ruled in the case of Republic v. Orbecido, GR. No. 154380, October 5, 2005, that the said
provision equally applies to a Filipino who married another Filipino,at the time of the marriage,
but who was already a foreigner when the divorce wasobtained.
 IV

a) After they got married, Nikki discovered that Christian was having an affair with another
woman. But Nikki decided to give it a try and lived with him for two (2) years. After two (2)
years, Nikki filed an action for legal separation on the ground of Christian’s sexual infidelity.
Will the action prosper? Explain. (5%)

SUGGESTED ANSWER:

Although the action for legal separation has not yet prescribed, the prescriptive period being 5
years, if Obecido’s affair with another woman was ended when Nikki decided to live with him
again, Nikki’s action will not prosper on account of condonation. However, if such affair is still
continuing, Nikki’s action would prosper because the action will surely be within five (5) years
from the commission of the latest act of sexual infidelity. Every act of sexual liaison is a ground
for legal separation.

b) Honorato filed a petition to adopt his minor illegitimate child Stephanie, alleging that
Stephanie’s mother is Gemma Astorga Garcia; that Stephanie has been using her mother’s
middle name and surname; and that he is now a widower and qualified to be her adopting parent.
He prayed that Stephanie’s middle name be changed from "Astorga" to "Garcia," which is her
mother’s surname and that her surname "Garcia" be changed to "Catindig," which is his surname.
This the trial court denied. Was the trial court correct in denying Hororato’s request for
Stephanie’s use of her mother’s surname as her middle name? Explain. (5%)

SUGGESTED ANSWER:

No, the trial court was not correct. There is no law prohibiting an illegitimate child adopted by
his natural father to use as middle name his mother’s surname. The law is silent as to what
middle name an adoptee may use. In case of In re: Adoption of Stephanie Nathy Astorga Garcia,
G.R. No. 148311, March 31, 2005, the Supreme Court ruled that the adopted child may use the
surname of the natural mother as his middle name because there is no prohibition in the law
against it. Moreover, it will also be for the benefit of the adopted child who shall preserve his
lineage on his mother’s side and reinforce his right to inherit from his mother and her family.
Lastly, it will make the adopted child conform with the time-honored Filipino tradition of
carrying the mother’s surname as the person’s middle name.

a) Spouses Primo and Monina Lim, childless, were entrusted with the custody of two (2) minor
children, the parents of whom were unknown. Eager of having children of their own, the spouses
made it appear that they were the children’s parents by naming them Michelle P. Lim and
Michael Jude Lim. Subsequently, Monina married Angel Olario after Primo’s death.

She decided to adopt the children by availing the amnesty given under R.A. 8552 to those
individuals who simulated the birth of a child. She filed separate petitions for the adoption of
Michelle, then 25 years old and Michael, 18. Both Michelle and Michael gave consent to the
adoption.

The trial court dismissed the petition and ruled that Monina should have filed the petition jointly
with her new husband. Monina, in a Motion for Reconsideration argues that mere consent of her
husband would suffice and that joint adoption is not needed, for the adoptees are already
emancipated.

Is the trial court correct in dismissing the petitions for adoption? Explain. (5%)

SUGGESTED ANSWER:

Yes, the trial court was correct. At the time the petitions for adoptions were filed, petitioner had
already remarried. Under the law, husband and wife shall adopt jointly, except in the cases
enumerated in the law. The adoption cases of Michelle and James do not fall in any of the
exceptions provided in the law where a spouse is permitted to adopt alone. Hence, Monina
should adopt jointly with her husband Angel (Adoption of Michelle P. Lim, G.R. Nos.
168992-93, May 21, 2009).

b) Jambrich, an Austrian, fell in-love and lived together with Descallar and bought their houses
and lots at Agro-Macro Subdivision. In the Contracts to Sell, Jambrich and Descallar were
referred to as the buyers. When the Deed of Absolute Sale was presented for registration before
the Register of Deeds, it was refused because Jambrich was an alien and could not acquire
alienable lands of the public domain. After Jambrich and Descallar separated, Jambrich
purchased an engine and some accessories for his boat from Borromeo. To pay for his debt, he
sold his rights and interests in the Agro-Macro properties to Borromeo.

Borromeo discovered that titles to the three (3) lots have been transfereed in the name of
Descallar. Who is the rightful owner of the properties? Explain. (5%)

SUGGESTED ANSWER:

It depends. On the assumption that the Family Code is the applicable law, the ownership of the
properties depends on whether or not, Jambrich and Descallar are capacitated to marry each
other during their cohabitation, and whether or not both have contributed funds for the
acquisition of the properties. If both of them are capacitated to marry each other, Art 147-
co-ownership will apply to their property relations and the properties in question are owned by
them in equal shares even though all the funds used in acquiring the properties came only from
the salaries or wages, or the income of Jambrich from his business or profession. In such case,
while Jambrich is disqualified to own any part of the properties, his subsequent transfer of all his
interest therein to Borromeo, a Filipino, was valid as it removed the disqualification. In such
case, the properties are owned by Borromeo and Descallar in equal shares. If, on the other hand,
Jambrich and Descallar were not capacitated to marry each other Art. 148-co-ownership governs
their property relations. Under this regime, Jambrich and Descallar are co-owners of the
properties but only if both of them contributed in their acquisition. If all the funds used in
acquiring the properties in question came from Jambrich, the entire property is his even though
he is disqualified from owning it. His subsequent transfer to Borromeo, however, is valid as it
removed the disqualification. In such case, all the properties are owned by Borromeo. If, on the
other hand Descallar contributed to their acquisition, the properties are co-owned by Descallar
and Borromeo in proportion to the respective contributions of the Descallar and Jambrich.

Note: The facts of the problem are not exactly the same as in the case of Borromeo v. Descallar,
G.R. NO. 159310, Feb 24, 2009, hence, the difference in the resulting answer.

VIII

a) Ricky and Arlene are married. They begot Franco during their marriage. Franco had an illicit
relationship with Audrey and out of which, they begot Arnel. Frnaco predeceased Ricky, Arlene
and Arnel. Before Ricky died, he executed a will which when submitted to probate was opposed
by Arnel on the ground that he should be given the share of his father, Franco. Is the opposition
of Arnel correct? Why? (5%)

SUGGESTED ANSWER:

NO, his opposition is not correct. Arnel cannot inherit from Ricky in representation of his father,
Franco. The representative must not only be a legal heir of the person he is representing but he
must also be a legal heir of the decedent he seeks to inherit from.

While Arnel is a legal heir of Franco, he is not a legal heir of Ricky because an illegitimate child
has no right to inherit ab intestato from the legitimate children and relatives of his father or
mother (Art. 992). Arnel is disqualified to Inherit from Ricky because Arnel is an illegitimate
child of Franco and Ricky is a legitimate relative of Franco.

b) How can RJP distribute his estate by will, if his heirs are JCP, his wife; HBR and RVC, his
parents; and an illegitimate child, SGO?
SUGGESTED ANSWER:

A testator may dispose of by will the free portion of his estate. Since the legitime of JCP is 1/8 of
the estate, SGO is ⁄ of the estate and that of HBR and RVC is ⁄ of the hereditary estate under
Art. 889 of the Civil Code, the remaining 1/8 of the estate is the free portion which the testator
may dispose of by will.

IX

a) Does the right to request for the issuance of a writ of possession over a foreclosed real
property prescribe in five (5) years? (5%)

SUGGESTED ANSWER:
NO, the purchaser’s right to request for the issuance of the writ of possession of the land never
prescribes. The right to possess a property merely follows the right of ownership, and it would be
illogical to hold that a person having ownership of a parcel of land is barred from seeking
possession thereof (Spouses Edralin v. Philippine Veteran’s Bank, G.R. No. 168523, March 9,
2011).

b) A petition for declaration of nullity of a void marriage can only be filed by either the husband
or the wife? Do you agree? Explain your answer. (5%)

SUGGESTED ANSWER:

Yes, I agree. Under the rules promulgated by the Supreme Court, a direct action for declaration
of nullity may only be filed by any of the spouses.

Or

No, I do not agree. There are others who may file a petition for declaration of nullity such as the
other spouse in bigamous marriages.