PRE-WEEK REVIEW ON CIVIL LAW
1) When When do laws laws take take effec effectt in the the Philipp Philippines ines? ? Ans:
2)
15 days after publication in the Official Gazette or in a newspaper of general circulation, unless it is otherwise provided in the law (Art. 2, Civil Code).
a. What is the effect of the acts executed against the mandatory and prohibitory provisions of law? Ans:
Acts done in contravention of prohibitory and mandatory provisions of law are null and void, except when the law itself provides for their validity (Art. 5, NCC)
b. State at least 3 exceptions exceptions when acts executed against mandatory mandatory laws are valid. (see page 3, ibid ) 3) What is the concept of “Stare decisis”? Ans:
Judicial decisions interpreting the law shall form part of the Philippine legal system (Art. 8, NCC)
1) A & B, both both Filipino Filipino got married. married. B became became naturalized naturalized American American citizen and and got a divorce divorce decree decree against A in Rino, Nevada. Divorce is recognized in the United States, but not in the Philippines. A subsequently got married to C. a) Is the marri marriage age of of A to C valid valid under under Philip Philippin pine e law? law? Ans:
Yes. In Llorente Llorente vs. Llorente, decided by the Supreme Supreme Court of the Philippines in 2000, the marriage under identical identical facts was held to be valid, applying applying the nationality nationality principle to B under Article 15 of the Civil Code which provides that “laws relating to family rights and duties, or the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” Since B was an American when he obtained the Divorce decree, US law, which recognizes absolute divorce, applies. In the recent case of Republic Republic vs. Orbecido Orbecido,, decided in 2005, the Supreme Court, interpreting Article 26, paragraph 2, ruled that: The intent of par. 2, Article 26 is to avoid the absurd situation where the Filipino spouse remains married to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating him to remarry.
2) Will your answer answer be the same, same, if B obtained obtained first the Divorce Divorce decree decree before before becoming becoming a naturalized naturalized American citizen? Ans:
No. In Republic vs. Iyoy , 470 SCRA 519 (Sept. 21, 2005), the Supreme Court held that Article 26, paragraph 2 is not applicable to a Filipino spouse who became a naturalized American after obtaining the divorce decree. When the divorce decree was obtained, he was still a Filipino citizen bound by Philippine laws on family rights and duties, status, condition and legal capacity.
3) A, married married to B, B, got an illegal illegal Divorce Divorce against against B in the the US and then then married married C. C got mad at at A upon learning that their marriage is void. A filed an action to declare his marriage to B a nullity under Art. 36 of the Family Code. May C intervene in said action?
Notes of hotjurist In foro conscientiae
Ans:
No, she has no legal interest because she was never a legal wife of the Petitioner. Her marriage to him is void because at the time of her marriage to the Petitioner, the latter was still lawfully married to B. ( Elmar Elmar Perez vs. Court of Appeals and Tristan Catindig, G.R. No. 162580)
4) Is a Psychiatric Psychiatric report a mandator mandatory y requirement requirement in an action to declare declare nullity of the the marriage marriage based based on psychological incapacity under Art. 26 of the Family Code? Ans:
Psychological incapacity, as a ground for declaring the nullity of a marriage, may be established by the totality of evidence presented. There is no requirement, however, that the respondent should be examined by physician or a psychologist as a condition sine quo non for such declaration. (Marcos (Marcos vs. Marcos, Marcos, G.R. No. 136490, Oct. 19, 2000 )
1) What What is the the doctrine doctrine of of trienni triennial al cohabit cohabitati ation? on? Ans:
The husband is presumed impotent if the wife remains a virgin after living together for 3 years. (US jurisprudence).
2) Enumerate Enumerate the instanc instances es when fraud constitu constitutes tes a ground ground for annulmen annulmentt of marriage. marriage. Ans:
Concealment or non-disclosure of: 1. Previo Previous us convict conviction ion of crime crime involvin involving g moral moral turpitud turpitude. e. 2. Being Being pregnan pregnantt by another another man man at the time time of the marri marriage. age. 3.
Sexually transmissible transmissible disease disease (STD) (STD) existing existing at the the time time of the the marriage. marriage.
4.
Drug addiction, habitual alcoholism, homosexually or lesbianism existing at the time of the marriage ( Art. Art. 46, F.C.).
Note: No other misrepresentation or deceit as to character, health, rank fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. ( Art. Art. 46, FC ) 3) In what cases cases betw betwee een n memb members ers of the same same family family is earn earnes estt effor effortt for for comp comprom romise ise not required/necessary? Ans:
In the following cases which may not be the subject of compromise: (1) The civil civil status status of perso persons; ns; (2) The validity validity of a marriage marriage or legal separatio separation; n; (3) Any groun ground d for legal legal separat separation; ion; (4) Futur Future e suppo support rt;; (5) The juri jurisdi sdictio ction n of courts; courts; (6) Futur Future e legiti legitime me..
4) Are Are chro chroni nic c lying lying and and fant fantas asiz izin ing g a grou ground nd for for declar declarati ation on of nulli nullity ty based based on psyc psychol hologi ogica call incapacity under Article 36 of the Family Code? Ans:
Yes, as held by the Supreme Court in a recent case where inveterate lying impairs the capacity of the liar to perform essential marital obligation, pre-existing and present at the time of the celebration of the marriage, grave and incurable.
V 1) a) When may the the illegitimate illegitimate children use the surname surname of the natural natural father? father?
Notes of hotjurist In foro conscientiae
Ans:
When their filiation has been expressly recognized by their father through (1) the record of birth appearing in the civil registrar (2) in a public document (3) or private handwritten instrument of the father. There is no need to go to court to establish filiation and authorization to use the surname of the father. Aside from the foregoing, filiation may be established by (1) the open and continuous possession of the status of an illegitimate child; or (2) any other means allowed by the Rules of Court and special laws. (Art. 172, Civil Code).
b) Is DNA test admissible proof of parentage? Ans:
Yes, it is a recognized proof of paternity and filiation.
2) a) When may entries entries in the the civil registry registry be corrected corrected without without a judicial judicial order? Ans:
For clerical or typographical errors and change of first name or nickname.
3) What What are the requireme requirements nts for a decree of declarat declaration ion of nullity nullity to be final final and execut executory ory where where there are assets for partition and there are children borne of the marriage declared null and void? Ans:
There must be a partition and delivery of the presumptive legitime to the children.
V 1) Is the sale of of the reclaimed reclaimed and the the submerged submerged area area of Manila Manila Bay to AMAR AMARI, I, a private private corporation corporation valid? Reasons. Ans:
No, for the following reasons: a. The sale sale of the reclaim reclaimed ed lands lands in Manila Manila Bay regist registered ered in the the name of PEA PEA falling falling under lands of the public domain in favor of AMARI, a private corporation is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable land of the public domain. b.
The sale sale of the still still submerged submerged area area of Manila Manila Bay Bay to AMARI AMARI is void for for being contrary contrary to Sec. 2, Art XII of the 1987 Constitution which prohibits the alienation of natural resources other than agricultural lands of the public domain.
c.
Priva Private te corpo corpora ratio tions ns cannot cannot hold, hold, except except by lease, lease, alien alienabl able e lands lands of the publi public c domain.
d. Submer Submerged ged lands, lands, like the waters waters (sea (sea or bay) above above them, are part part of the State’s State’s inaliena inalienable ble natura naturall resourc resources. es. Subme Submerged rged lands lands are proper property ty of public public dominio dominion, n, absolutely inalienable and outside the commerce of man. This is also true with respect to foreshore lands. Any sale of submerged submerged or foreshore foreshore lands is void being contrary to the Constitution. 2)
Is the “salvage zone” capable zone” capable of private ownership and titling? Ans:
Yes. Yes. The salvage salvage zone zone consis consistin ting g of “lands “lands measur measuring ing twenty twenty (20) (20) meters meters measur measured ed landward landward from the interior limit of the shoreline” is capable of private private ownership and being validly covered by a Torrens Torrens Title subject to the easement of public use, more specifically specifically easement of salvage and costal police imposed by law. ( Maristela Maristela vs. Director of Lands, et. al., G.R. No. 34901-R, September 7, 1968; 65 O.G. No. 46, pp. 12744-12747; Art. 9, Spanish Law of Waters of 1886; Article 51, Water Code; Art. 420, new Civil Code)
3) What is the the doctrine doctrine of indefeas indefeasibility ibility of torrens torrens titles? Ans:
A certificate of title, once registered, should not thereafter be impugned, altered, changed, modified, enlarged or diminished except in a direct proceeding permitted by law. The resolution resolution of the issue is, thus, not dependent on the report of the survey team filed in the trial court. ( De De Pedro v. Romasan, G.R. No. 158002, February 28, 2005)
4) Who is an innocent innocent purchase purchase in good faith faith of of registered registered land?
Notes of hotjurist In foro conscientiae
Ans:
Where the real property involved is covered by a Torrens title, the buyer, mortgagee, or, any person dealing with said realty need not go beyond what appears on the face of the title. He is charged with notice only of such burdens and claims as are annotated on the title. ( Clemente Clemente vs. Razo, G.R. No. 151245, March 04, 2005)
5) Is the the abov above e rule rule applic applicable able to bank banks? s? Ans:
6)
No. Banks, their business being impressed with public interest, are expected to exercise more care and prudence than private individuals in their dealings, even those involving registered lands. Hence, for merely relying on the certificates of title and for its failure to ascerta ascertain in the status of the mortgaged mortgaged proper properties ties as is the standard standard procedu procedure re in its operations, the bank is a mortgagee in bad faith. ( Consolidated Consolidated Rural Bank vs. CA, G.R. No. 132161, January 2005)
What are the requisites for legal easement of right of way? Ans:
The following:
a) It is surrounde surrounded d by other immovables immovables and has has no adequate adequate outlet outlet to a public public highway; highway; b) payme payment nt of pro proper per ind indem emnit nity; y; c) the isola isolation tion is not not the resu result lt of its its own own acts; acts; d) the right of way claimed is at the point point least least prejudicial prejudicial to the the servient servient estate; estate; and e)
to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. shortest. ( Sps. Sps. dela Cruz vs. Ramiscal, G.R. No. 137882, February 4, 2005)
V 1) A construc constructed ted a building building on the land of B knowin knowing g that the land land belongs belongs to B. A arranged arranged for the issuance of a fraudulent title over the land in his name. a) What What are the the rights rights of B with with respe respect ct to the the buildin building? g? b) Will your your answe answerr be the same same ifif A were were in good good faith? faith? Ans: a) Because Because A is in in bad faith, faith, B may demand demand demolition demolition of the building building at the the expense expense A, or he may compel A to pay the price of the land. b)
2)
No. If A were in good faith, he cannot be compelled to buy the land if its value is consid consider erab ably ly more more than than that that of the the build building ing,, if the the owne ownerr does does not not choo choose se to appr appropr opriat iate e the the build buildin ing g afte afterr prop proper er inde indemn mnity ity.. He shall shall pay reas reason onab able le rent rent.. ( Rosales Rosales vs. Casteltort, Casteltort, October 5, 2005)
a) What are the two stages in expropriation proceedings? Ans: Ans:
Expropriation proceedings consists of two stages: first, condemnation of the property after it is determined that its acquisition will be for a public purpose or public use and, second, the determination of just compensation to be paid for the taking of private property to be made by the court with the assistance of not more than three commissioners. ( NHA NHA vs. Givelondo, Givelondo , 404 SCRA [2003])
b) What is the concept of public use? Ans:
The concept of public use is no longer limited to traditional purposes. Here, as elsewhere, the idea that “public use” is strictly limited to clear cases of “use by the public” has been abandoned. The term “public use” has now been held to be synonymous with “public interest”, “public benefit,” “public welfare,” and “public convenience.” ( Reyes Reyes vs. NHA, NHA, 395 SCRA 494 [2003]) c) What What is the the interes interestt rate in in exprop expropriat riation ion cases cases? ?
Notes of hotjurist In foro conscientiae
Ans:
Legal Legal rate rate is 6% from the time time of taki taking ng to the time time of paym paymen ent. t. Back Back rent rentals als not not recoverable. ( MIAA MIAA vs. Rodriguez )
V 1) What What are are the the req requis uisite ites s of: of:
2)
c)
Reserva Troncal (p. 90, 1st Study Guide for the Bar )
d)
Fideicommissary Substitution (p. 90, 2 nd Study Guide for the Bar )
What is “disposicion captatoria”? Is it valid? What is its effect on the testamentary disposition? Ans:
The condition that the heir shall make some provision in his will in favor of the testator or of any other person is what is known as a condition captatoria. captatoria. Consequently, if the testator makes a testamentary disposition in his will subject to such a condition, it is known as a disposicion captatoria. captatoria. Under our law, not only the condition but the entire testamentary disposition disposition shall be void (Art. 875, NCC). The reason for this is that sucession is an act of liberality and not a contractual agreement. Besides, to permit it would impair the heirs’ freedom of disposition with respect to his own property. Furthermore, it would be equivalent to allowing the testator to dispose of the property of another after the latter’s death (6 Manresa 241).
3) Distinguish Distinguish between between the free free portion portion and the disposable disposable free free portion? portion? Ans:
Where there are other heirs entitled to legitime, like illegitimate children who are entitled to ½ of the legitime of the legitimate children, the legitime of the latter shall be taken from the free portion consisting of ½ of the hereditary estate. The free portion shall no longer be disposable if the decedent is survived by legitimate children or descendants, the surviving spouse, and several illegitimate illegitimate children so that there is nothing left for free disposal disposal (Art. 895, NCC), such as when there is a concurrence of one legitimate child, the surviving spouse, and 2 or more illegitimate children.
4) Define Define or explai explain n the follow following ing concept concepts s in success succession: ion: a) accretio tion. b) collation Ans: a) Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the decedent, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (Art. 1015, NCC) b)
Collation, Collation , under Arts. 1061 to 1077 of the NCC, refers to the act of restoring to the common mass of the hereditary estate, either actually or fictitiously, any property or right, which a compulsory heir, who succeeds with other compulsory heirs, may have received by way of donation or any other gratuitous title from the decedent, during the lifetime of the latter, but which is understood for legal purposes as an advance of his legitime.
V 1) What What are are the the requis requisites ites of a contrac contract? t? Ans: 2)
The following: (1) consent (2) object certain (3) cause or consideration.
What is a “contract-implied-in-fact”? Give an example (see p. 101, 1st Study Guide for the Bar )
3) What What are the essent essential ial characte characteris ristics tics of contr contracts acts? ? a) Obligat Obligatory ory force force – bindi binding ng on on the parties parties.. b) Relativity Relativity of contract contract – binding binding only on the the parties except where where there is a stipulation stipulation pour pour atrui in favor of a third party accepted by the latter.
Notes of hotjurist In foro conscientiae
c)
Mutuality Mutuality of contracts contracts – based based on essential essential equality equality between between the the contracting contracting parties. parties. The The obligation obligation is void for being potestative if its compliance and validity depends exclusively upon the will of one of the contracting parties.
d) Autonomy Autonomy or freedom freedom of contracts contracts – the parties parties may make make any stipulatio stipulation n or covenant covenant provided provided that it is not contrary to law, morals, good customs or public policy. e)
Complim Complimenta entarity rity of contrac contractt or “contracts “contracts construed construed together” together” princi principle ple – the implem implementi enting ng agreement cannot vary the main agreement of which it is a part.
X 1) A sells his car to B to be delivered to and be paid by B after one week. On the 3rd day, the Car is hit by lightning and is totally wrecked.
Who bears the risk of loss? Ans:
A because ownership ownership still remains with him and will be transferred to the Buyer only upon delivery. The owner bears the risk of loss. Res perit domino. B is not obliged to pay A.
2) a. Distinguish Distinguish between between convention conventional al subrogation subrogation of rights rights of creditors creditors and assignmen assignmentt of credit. b. Does assignment of credit require the consent of creditors? Ans:
No. Mere notice to creditor is sufficient. Please read pp. 134 to 136 of the 2 nd Study Guide for the Bar for Bar for a comprehensive discussion)
3) a. Def Defin ine e obli obliga gati tion on? ? Ans:
A judicial necessity to give, to do or not to do (Art. 1156).
b. What are the sources of obligation? Ans: 1)
Law , e.g., support, easement.
2)
Contract – law between the parties provided it is not contrary to law, morals, good customs, public order or public policy.
3)
Quasi-contract – Quasi-contract – based on the equitable principle of unjust of unjust enrichment . a)
solutio indebeti – indebeti – to return what is received by mistake; and
b)
negotionism negotionism gestio – to comp compen ensa sate te for for any any bene benefi fitt done done even even witho ithout ut an agreement. In the Revised Penal Code, under Justifying Circumstance No. 4, Art. 11, the person benefited by avoidance of greater evil or injury is civilly liable for the damage, damage, the only justifyin justifying g circum circumsta stance nce when when there there is a civil civil liabilit liability y involve involved d in consonance with the equitable principle to prevent unjust enrichment at the expense of another. The person benefited, not the actor, is liable.
4)
Felonies – acts or omissions punishable by law.
5)
Quasi-delicts or tortuous acts by any person who, there being fault or negligence causes damage to another.
c. Define the following: 1) Fort Fortui uito tous us even eventt 2) Exprom romisio ision n 3) Deleg legacio acion n 4) Novation 5) Daci Dacio on en pago pago
Notes of hotjurist In foro conscientiae
d. What are the different kinds of an obligation? (read 2 nd Study Guide for the Bar pp. Bar pp. 115-131) e. What are the modes of extinguishing an obligation? Ans:
The following: 1)
NO
– Novation
2)
CO
– Compensation
3)
RE
– Remission or Condonation of debt
4)
PA
– Payment or performance
5)
LO
– Loss of the thing due
6)
AN
– Annulment
7)
RE
– fulfillment of a Resolutory condition
8)
RE
– Rescission
9)
PRES
- Prescription
X 1) Explain Explain the the concept concept and and nature nature of natura naturall obligatio obligations. ns. An Ans:
Natu Natura rall obli obliga gati tion ons, s, not being based on positive law but on equity and natural law, do not grant a right of action to enforce their performance, but after voluntary fulfillment by the obligor, they authorize the retention of what has been delivered or rendered by reason thereof (Art. thereof (Art. 1423).
2) What What is the conc concept ept of of quasiquasi-con contrac tracts? ts? Ans:
Article 2142. Certain lawful, voluntary and unilateral acts give rise to the juridical relation of quasi-contract to the end that no one shall be unjustly enriched or benefited at the expense of another.
3) Define: a. Nego Negoti tior orum um gest gestio io b. Solut olutio io Ind Indeb ebit itii Ans: a.
Negotiorum gestio – Article 2144. Whoever voluntarily takes charge of the agency or management of the business or property of another, without any power from the latter, is obliged to continue the same until the termination of the affair and its incidents, or to require the person concerned to substitute him, if the owner is in a position to do so.
b.
Solutio Indebitii – Indebitii – Article Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.
X 1) Are corpo corporat rations ions entitl entitled ed to recove recoverr moral moral damages damages? ? Ans:
As a general rule, a corporation is not entitled to recover moral damages because it is incapable of feeling pain and mental anguish. However, it may recover damages in case of libel or defamation.
2) A marries marries B while while A’s marriag marriage e to C has not been been dissolve dissolved. d. C sues A for Bigamy Bigamy.. Thereaft Thereafter, er, A files a case for annulment of marriage against C on the ground of fraud.
Notes of hotjurist In foro conscientiae
May the criminal action be suspended on the ground of Prejudicial Question? Give 2 reasons. ANS:
No. (1) Under the new rule, the civil action must have been filed ahead of the criminal action for prejudicial question to apply. (2) The issue in the civil case is not determinative of the guilt or innocence of A in the criminal case. Bigamy is committed by a person who contracts a second marriage while the first marriage is subsisting and has not been dissolved. Whether the prior marriage is dissolved or not, bigamy may be committed.
X 1) Is extra-ju extra-judicial dicial foreclosure foreclosure before a notary notary public valid? Ans:
Yes, it is allowed under Act 3135 ( Tagunicar Tagunicar vs. Lorna Espress, February February 28, 2006, J. Gutierrez)
2) When may may a mortgagor mortgagor file a motion motion to set set aside foreclosur foreclosure e sale in the same same summary summary proceeding proceeding for issuance of a writ of possession? Ans:
Within 30 days from the time possession is turned over to the mortgagee or highest bidder.
3) Under Under the Recto Recto law, may propert property y be foreclo foreclosed sed other other than the chattels chattels acquired acquired by the loan secured by the chattel mortgage? Ans:
No, because that would violate the rule against deficiency judgment in case of foreclosure upon default in the payment of 2 or more installments. installments. As held by the Supreme Supreme Court in a case, the other property included in the chattel mortgage may not be foreclosed.
God Bless the 2008 BAR and its examinees.
Notes of hotjurist In foro conscientiae
