2008 CIVIL LAW PROLYTAE* (Roman Law).

The term used to denominate students of law during the fifth and last year of their studies. They were left during this year, very much to their own direction.

I. Ana Rivera had a husband, a Filipino citizen like her, who was among the passengers on board a commercial jet plane which crashed in the Atlantic Ocean ten(10) years earlier and had never been heard of ever since. Believing that her husband had died, Ana married Adolf Cruz Staedtler, a divorced German national born of a German father and a Filipino mother residing in Stuttgart. To avoid being required to submit the required certificate of capacity to marry from the German Embassy in Manila, Adolf stated in the application for marriage license that he was a Filipino citizen. With the marriage license stating that Adolf was a Filipino, the couple got married in a ceremony officiated by the Parish Priest of Calamba, Laguna in a beach in Nasugbu, Batangas, as the local parish priest refused to solemnize marriages except in his church. Is the marriage valid? Explain fully. (5%)

let me try also. the marriage is void. the law provides that a marriage is valid provided the essential and formal requisites as provided by law are present. in the case at bar, the marriage was solemnized by a priest outside his pastoral jurisdiction therefore solemnizing without authority. a marriage is void in the absence of a valid authority of the solemnizing officer to act as such, being a formal requisite. there must be a certifiaction from the pastoral head or sect to exercise outside pastoral jurisdiction.

Comment : Any defect in the formal requisites of marriage amounts only to irregularity on the formal requisites. Such irregularity does not go into the heart of marriage. In other words, it does not affect the validity of marriage or render the marriage void.

As far as I can remember, defects in the formal requisites render only the marriage voidable. (Just a thought, can it be made effective by way of ratification of the attending defects?) However, in case of defects or absence of any of the essential requisites of a valid marriage, the same is void ab initio.

Any defect on the formal requisites of marriage does not make the marriage voidable. It merely makes the formal requisite irregular which does not affect the validity of the marriage. It is the defect on the essential requisites that makes the marriage voidable which may be cured by cohabitation.

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

Thanks Sir Manresa for the correction. I have qouted above the applicable provision in the Family Code. A wild guess is never good enough.

the authority of the solemnizing officer is not an issue since priests usually have authority to solemnize marriage throughout the country and not just in their parish.

I concur. Especially if the parties belong to the same religion or congregation as the priest which is not (or at least not seemingly) availing in the case at bar. Nevertheless, I personally believe that the strongest answer would be that of sir Manresa which is based on Article 41 of the Family COde, requiring for the institution of a summary proceeding for the declaration of presumptive death of the absentee spouse before the subsequent marriage to be valid.

I respectfully disagree for the requirement of a judicial declaration of presumptive death. Under the the New Civil Code, a person who is absent for ten (10) years, it being unknown whether or not he still lives, he is presumed dead even for purposes of succession. Hence, by legal fiction Ana's husband is already dead. More so, his absence was due to a plane crash in Atlantic Ocean. (Naalala ko tuloy 'yong movie na 'Cast Away', may similar facts kasi.) The Family Code contemplates of four-year absence in case of ordinary disappearance and two-year absence in cases of exceptional disappearance under the New Civil Code for the requirement of a judicial declaration of presumptive death. In the instant case, Ana's husband was absent for ten (10) years. Thus, the requirement for a judicial declaration of presumptive death in case of four-year absence or two-year absence is not applicable in the instant case. Therefore, Ana can validly remarry without the required judicial declaration of presumptive death. Anyone, please correct me if I incorrectly applied the the New Civil Code. Kaawa kasi si Ana, 10 years nang wala asawa n'ya dahil sa plane crash, then she still needs judicial declaration of presumptive death to remarry. I think ten years of disappearance of a person due to plane

crash will engender a prudent man to reasonably believe that the former is already dead. For ten years, Ana had given sufficient benefit of the doubt her husband's death due to plane crash, that's why she has not married anyone earlier after the disappearance of her husband.

Ferdz, I believe the Family Code, being the recent law, applies.Lex posteriori derogat priori.

i didn't answer this based on the plane crashing and the authority of the solemnizing officer. fart. tanga tanga ko, nakita ko kasi agad ung marriage license so i jumped in and answered. only when i saw the question posted dito na sa forum did i see na, shemay, may tungkol sa pari???? so allow me to answer na lang here. huhuhu. marriage is valid. per express provision of law, the marriage license, the authority of a solemnizing officer, and the marriage ceremony are formal requisites needed to have a valid marriage. any irregularity regarding the mentioned requisites, the marriage is still void, however, the cause of the irregularity will be subject to criminal, civil and/or administrative liabilities. in the case at bar, the marriage license was procured fraudulently by the misrepresentation of Adolf. as an alien, he needed to procure a certificate of capacity to marry from his embassy, but instead he claimed to be a Filipino. however, such fact can only be seen as an irregularity, to which Adolf and the civil registrar shall be held liable for the misrepresentation and negligence, respectively. Hence, as to this requisite, marriage is valid. as for the authority of the solemnizing officer, the priest who solemnized the marriage was outside his jurisdiction, having been authorized by the Catholic Church to officiate only within Laguna (NOTE: per our prof, may kanya-kanyang jurisdiction din daw ang mga solemnizing officers ng churches at kelangan nakaregister sila). however, there was on indication that the couple knew of such defect in the authority of the solemnizing officer, believing in good faith that the priest had the power to officiate their wedding. This good faith cures the defect of the officer's authority, making the marriage valid. As for the marriage ceremony, the Family Code expressly allows the ceremony to be held in any place as long as the parties agree to where it shall be held. The proscription of the Catholic Church as to marrying anywhere else aside from the church is of no moment. So long as there are at least two witness of legal age, with the couple's declaration in the presence of the solemnizing officer, the marriage is valid. In sum, with all the formal requisites present albeit the irregularities, the marriage is valid.

PS. i did and won't take issue na on the first husband. the plane crashed kasi, so it can be presumed that the husband is dead. the Art 391 of the Civil Code provides that plane is "missing", meaning, no one knows what happened to it, which is unlike the case at bar since we know it crashed in the Atlantic Ocean. and if ever this will be of some issue, my argument will be for the best interest of the wife (naks) since it has been 10 years already. it can be safe

to presume the first husband is already dead. it may be considered a superfluity to ask for a declaration of presumptive death for someone whose plane had crashed in the ocean 10 years ago.

Mr/Ms Examiner!!! please PM me so i can give you my name!!!! huhuhu!

i answered in favor of the validity of the marriage. the argument about the requisite for judicial declaration of presumptive death came across my mind also during the exam. however, the question did not state that such judicial declaration was obtained NEITHER DID THE QUESTION STATE THAT SUCH WAS NOT OBTAINED. i just hope the examiner will really check the answers based on their merits and not simply giving an X mark if the answer is YES instead of a NO.

II. At 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 an abandoned hut in Cavite. Marian and Pietro were hacked with bolos. Marian and the baby she delivered were both found dead, with the babys umbilical cord already cut. Pietro survived. a) Can Marians baby be the beneficiary of the insurance taken on the life of the mother? (2%) b) Between Marian and the baby, who is presumed to have died ahead? (1%) c) Will Pietro, as surviving biological father of the baby, be entitled to claim the proceeds of the life insurance on the life of Marian? (2%)

[i]Just a try. Hope my knowledge in civil law still works. Trial Answer: a. This question boils down to the issue of whether or not the baby is deemed born for purposes of determining its civil personality at the time it was delivered. My answer is a qualification. For all purposes favorable to it, a baby is deemed born after it has been successfully delivered, and is alive, from the mothers womb. However, if the baby has an intrauterine life of seven (7) months, it is not deemed born if it dies within 24 hours after it is

successfully delivered from the mothers womb. With the facts at hand, I submit that the baby can become a beneficiary of the insurance taken on the life of the mother, the purpose of the law being to give to the child whatever that is favorable to it. b. Between Marian and the baby, the law presumes the latter to have died first. c. Yes, if filiation between Pietro and the baby be duly proved, Pietro, as the biological father of the baby, shall be entitled to claim the proceeds.

The facts do not indicate whether the baby was born premature or not. Neither does it show whether the baby died within 24 hours from its delivery from maternal womb. Heres my suggested answer. Marians unborn child can be the beneficiary of the insurance because that is favorable to the unborn child, but if only the baby had an intra-uterine life of NOT less than 7 months. If the baby had an intra-uterine life of less than 7 months, the following applies. 1. If the baby died within 24 hours following its delivery, it cannot be a beneficiary since it never became a person, birth being determinative of personality. 2.If the baby died after 24 hours from its delivery, the baby deemed to have acquired juridical personality and can therefore be a beneficiary of the insurance.

(b. Between Marian and the baby, the law presumes the latter to have died first.) The facts of the case of bar show no indication or particular circumstance from which it may be inferred as to which of them died first. In the absence of proof, the law presumes that they died at same time.

(b. Between Marian and the baby, the law presumes the latter to have died first. The facts of the case of bar show no indication or particular circumstance from which it may be inferred as to which of them died first. In the absence of proof, the law presumes that they died at same time.) Under the Revised Rules on Evidence, Rule 131, Sec. 3 (jj) That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules: xxx 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

Considering the provisions above, I respectfully believe that the baby died first.

This forms the main basis of my answer above. This also finds support under Article 43 of the New Civil Code, with special reference to the book of Paras (Annotated). Although I agree with the fact that in the absence of proof, it is presumed that they died at the same time as provided for under Art 43 (NCC), the same constitutes a general rule admitting of further qualifications such as those stated above. Undeniably, the circumstance of their ages attendant in the case presented, constitutes the basis for presumptively declaring that the baby had died ahead of the mother.

Noted. But Im not convinced. The Rules cited above applies only to those who are not related and may not be used as a basis for transmission of rights from one to another. The facts of the case at bar show that Marian and the baby are related by consanguinity.

I agree with you Sir Lito. If I were to answer it, I will use the general rule that absence of proof, it is presumed that they died at the same time. Also, he who alleges that a party died first shall have the burden of proving it.

With due respect to Sir Manresa, but I believe there was not a transmission of rights issue between Marian and the baby here. On the contrary, it was a transmission of rights between the baby to his biological father with regard to the proceeds of the insurance. Anyway, its just my two cents...

a) Can Marians baby be the beneficiary of the insurance taken on the life of the mother? (2%) Yes, the baby is fit to be the subject of legal relations like an insurance contract. The concept of provisional personality is applicable in this case given the fact that Marian was already due to give birth which presupposes that the baby had an intrauterine life of more than 7 months. Concomitant to such fact and in the absence of evil intent, the law allows Marian to take a policy of insurance on her own life and make it payable to whomever she pleases.

b) Between Marian and the baby, who is presumed to have died ahead? (1%) Marian and her baby is presumed to have died at the same time in as much as there are no available proof to the contrary. The concept of presumption of survivorship is applicable in this case simply because of maternal relations between the two.

At 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 an abandoned hut in Cavite. Marian and Pietro were hacked with bolos. Marian and the baby she delivered were both found dead, with the babys umbilical cord already cut. Pietro survived. Since Marian was due to give birth, the issue of the intra-uterine life of the baby is out of question. No one is due to give birth to a baby with less than seven months.

Good point, Dawn. But I disagree. How a pregnant woman knows that she is already due to give birth? There are symptoms such as vaginal spotting, abdominal pain, pressure in the pelvis, a watery discharge from vagina, among others. These symptoms may occur in both premature and postmature birth. I believe the case at bar contemplates this scenario.

III. Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started to live together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad . Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. a) Was the marriage of Roderick and Faye valid? (2%) b) What is the filiation status of Laica? (2%) c) Can Laica bring an action to impugn her own status on the ground that based on DNA results, Roderick is her biological father? (2%) d) Can Laica be legitimated by the marriage of her biological parents? (1%)

My partial trial answer: a. No, the marriage is void for its failure to comply with one of the essential and formal requisites of a valid marriage, namely that, there must be a valid marriage license, unless authorized under exceptional circumstances provided for in the Family Code. The contention that since they have been continuously cohabiting for more than 5 years, the requirement of a

valid marriage license can be dispensed with, is utterly bereft of merit. What the law contemplates in the phrase continuously cohabiting for more than 5 years is a cohabitation in the concept of a husband and a wife and not that of what is obtaining between Faye and Roderic, which is at best, an illicit one, Faye being married to Brad. b. Because Faye and Brad are married and living together as husband and wife, the law presumes Laica to be the biological daughter of Brad, the former being born during the subsistence of Faye and Brads marriage.

My two cents' worth: c. No, Laica cannot bring an action to impugn her own status. An action to impugn the legitimacy can only be instituted by the husband except in cases where: (1) the husband died before the expiration of the period fixed for bringing his action; (2) or he died after the filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the husband in which case such action will be instituted by the husband's heirs. d. No, Laica cannot be legitimated by the marriage of her biological parents. According to Article 177 of the Family Code, only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. It is undeniable that Laica was conceived and born during the subsistence of her mother's marriage to Brad.

There is nothing in the law that prohibits a child from impugning his legitimate filiation. In fact, in one jurisprudence, the Court affirmed the petition of the mother of a legitimate daughter to correct the latters birth certificate to the effect that her surname be changed to that of her biological father, which in effect changed his status from legitimate to illegitimate. Laica, being a minor, can therefore impugn her own status through her mother on the ground that Roderick is her biological father based on DNA results which the Court in one case had recommended to be resorted to in the prompt resolution of parentage and identity issues.

In the case of Liyao Jr. vs Tanhoti-Liyao [G.R. No. 138961. March 7, 2002.], penned by Justice de Leon, it stated the following: While physical impossibility for the husband to have sexual intercourse with his wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code. Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved. It is only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none even his heirs can impugn legitimacy; that would amount to an insult to his memory.

It is settled that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress. We cannot allow petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mother's alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the paternity of the husband who successfully defeated the presumption.

Thanks blimpi for the citation of the Liyao case, I kinda forgot it during the review. All the best on the remaining Sundays.

In the case of Barco vs. CA, et. al. (G.R. No. 12087, 20 January 2004), a mother named Nadina filed a Petition for Correction of Entries in the Certificate of Birth of her daughter June with the RTC to the effect that the latters full name be made "June Salvacion C. Gustilo," and that the name of her father be changed from "Francisco Maravilla" to "Armando Gustilo", Junes biological father. In other words, the RTC was asked to change the status of June from legitimate to illegitimate. In effect. Nadina, the mother, was impugning the legitimate filiation of her daughter. The RTC issued an Order granting the petition and ordering the requested corrections to be effected, which was sustained by the Court of Appeal and affirmed by the Supreme Court through the ponencia of Justice Tinga, who we all know is the Chairperson of 2008 Bar Exams Committee.

thank you for dashing our hopes, Atty. Manresa. nakakabaliw!

joke, but not quite hahaha.

i was really sure tama sagot ko, kasi un pa talga tinuro ni Atty Vilches nung preweek. howell. what's another try. fart. ayoko na. sawa na ako. but i'll read the case you cited, thanks.

on second thought, i'll bookmark the case and read it after the bar. no point in sulking with something i can not change anymore. on to the next exams!

I have read both cases and I thank Sir Manresa for providing the citation to the Barco case and I have come to the conclusion that the Liyao case fits in all fours in the present controversy. It is worth mentioning that the central issue in the case of Barco is whether or not the decision of RTC which has become final can be annuled which was answered by the SC in the negative as... Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly provides only two grounds for annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. The issue raised about the propriety of the changing of the child's surname in contravention to the legal presumption that children born born during the pendency of a marriage are legitimate was not even passed upon except the conceding that such decision of the RTC was erroneous in this wise: As for Barco's remaining arguments, they similarly fail, as the worst they could establish is that the RTC Order is an erroneous judgment. xxx In the same vein, it is of no moment that the RTC Order contravenes the legal presumption accorded June of being the legitimate child of Francisco and Nadina. A review of the records does indicate the insufficiency of the evidence offered to defeat the presumption, against which the only evidence admissible is the physical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. It seems that the RTC relied primarily on the testimony of Nadina in adjudging that Gustilo, and not Francisco, was the father of June. Yet, Article 256 of the Civil Code renders ineffectual any pronouncement against legitimacy made by the mother. The testimony proffered by the mother has no probative value as regards June's paternity. The RTC's cognizance of Gustilo's Constancia might likewise be subject to critical scrutiny. But the Court is now precluded from reviewing the RTC's appreciation of the evidence, however erroneous it may be, because the Order is already final. The RTC's possible misappreciation of evidence is again at most, an error in the exercise of jurisdiction, which is different from lack of jurisdiction. These purported errors do not extend to the competence of the RTC to decide the matter and as such does not constitute a valid ground to annul the final order. All in all, I think it boils down to a mere adherence to the technicalities of procedures than a merit over the substantive issues at hand. I hope this helps blimpi and the others to sleep peacefully tonight... Cheers!

Answers: a. No. It is invalid since there was no marriage license. The law provides that when one of the essential or formal requisite is absent, the marriage is void. In the case at bar, the contention that they need not secure a marriage license in conformity with Art 34 of the FC is not availing. For ratification of marital cohabitation to apply, both parties must have lived together as husband and wife for at least five years and without any legal impediment to marry each other. It was impossible for them to freely cohabitate for five years because of the existence of marriage between Brad and Faye.

b. Laica is a legitimate child of Brad and Faye. The law provides that a child conceived and born during the marriage is legitimate child of the parents. c. No. Legitimacy may only be impugned by the husband or in exceptional cases, by the heirs. It is for the simple reason that it is the husband who will contend with controversies and shame and therefore has the sole decision on whether to expose or conceal the infidelity of the spouse in consideration of the moral and economic interest attached to it. Further, Laica may not impugn her legitimacy for the reason that allowing such is tantamount to desecrating the honor of the deceased husband. d. No. The law provides that only children conceived outside of marriage, provided there were no legal impediments, may be legitimated by a subsequent marriage. In the case at bar, Laica was conceived during the marriage of Faye to Brad and therefore serves as a legal impediment and thus unqualified to be legitimated.

a) Was the marriage of Roderick and Faye valid? (2%) try lang po: a) Not valid. The law provides that absence of any essential and formal requisites of marriage makes it void ab initio. The marriage between Roderick and Faye does not fall within the exemption of a marriage license as a formal requisite of a valid marriage. The law contemplates one that has been in a continuous cohabitation as husband and wife for a period of 5 years without any impediment to marry each other inorder for the marriage to be exempt from the license requirement. In this case, there was an impediment to marry during the period that Faye and Roderick were regularly seeing each other as Faye was actually married to Brad. Hence, the marriage between them without securing the marriage license is not valid.

IV. Gianna was born to Andy and Aimee, who at the time of Giannas birth were not married to each other. While Andy was single at that time, Aimee was still in the process of securing a judicial declaration of nullity on her marriage to her ex-husband. Giannas birth certificate, which was signed by both Andy and Aimee, registered the status of Gianna as legitimate, her surname carrying that of Andys, and that her parents were married to each other. a) Can a judicial action for correction of entries in Giannas birth certificate be successfully maintained to: i) Change her status from legitimate to illegitimate (1%); and ii) Change her surname from that of Andys to Aimees maiden surname? (1%) b) Instead of a judicial action, can administrative proceedings be brought for the purpose of making the above corrections? (2%) c) Assuming that Aimee is successful in declaring her former marriage void, and Andy and Aimee subsequently married each other, would Gianna be legitimated? (1%)

Theres no harm in trying. So here are my suggested answers. a.i) Yes. The facts of the case show that Gian was indeed illegitimate having been born outside of wedlock. Presenting proof to this fact and an allegation that the entry on the filiation was made through inadvertence are sufficient grounds for the granting of the petition to change her filiation from legitimate to illegitimate. a.ii) No. The petition for changing her surname from that of Andys to Aimees maiden surname should be denied because illegitimate children may now, under a new law, use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register. The facts of the case clearly illustrate that Andy did in fact recognized the filiation of Gian by signing on the birth certificate. b) No. Change of filiation and surname would involve substantial corrections which cannot be effected through administration proceedings. Under the new law on correction of entries through administrative proceedings, only clerical or typographical errors and change of first name or nickname may now be corrected or changed by the concerned city or municipal registrar, without need of any judicial order. c) No, Gianna would not be legitimated because she was both conceived and born outside of wedlock of Andy and Aimee who were not qualified to marry each other. It is clear that Aimees marriage with his ex-husband was still subsisting during the conception of Gianna as the absolute nullity of her previous marriage for purposes of remarriage was not yet declared final - a legal impediment that disqualified them to marry each other.

Answer of Manresa: c) No, Gianna would not be legitimated because she was both conceived and born outside of wedlock of Andy and Aimee who were not qualified to marry each other. It is clear that Aimees marriage with his ex-husband was still subsisting during the conception of Gianna as the absolute nullity of her previous marriage for purposes of remarriage was not yet declared final - a legal impediment that disqualified them to marry each other. My Reply Hi...all my answers in a and b tally with the talented Mr. Manresa. I may have erred however with c. I responded that Gianna will be legitimated if Andy and Aimee gets married since she's an illegitimate child of the two; that also being her "legitimate" with her known parents is not true. Sayang, one point din sana yun.......

Points to ponder: 1. Should not the answer to (a) be based on the assumption that the judicial action for correction of entries are adversarial, not summary? For, if the judicial action was summary, would it not necessarily fail considering that the corrections or changes sought are substantial?

2. Should not Gianna be presumed legitimate not because that was the entry in her birth certificate but because she was born during the existence of Aimee's marriage with her exhusband? In other words, should she not be presumed the legitimate child not of Andy and Aimee but of Aimee and her ex-husband? Indeed, look at Article 54 of the Family Code which provides: Quote: ART. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. (emphasis supplied)

3. Is not Article 164 of the Family Code clear? Quote: ART. 164. Children conceived or born during the marriage of the parents are legitimate.

And are not Aimee and her ex-husband the presumed parents of Gianna pursuant to the presumptions in favor of marriage (semper praesimitur matrimonii) and in favor of legitimacy? 4. Should not the answer to (a)(i) be based on the presumption that it was Aimee's ex-husband (as the presumptive father of Gianna) or his heirs who are to impugn the legitimacy of Gianna? For is it not the rule that "impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs (see Concepcion v. Court of Appeals, G.R. No. 123450, 31 August 2005)? And should not the ground be Article 166 (2) of the Family Code? Note that Article 166 (2) provides: Quote: Article 166. Legitimacy of a child may be impugned only on the following grounds: (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164;

5. Should not the answer to (a)(ii) be based on the presumption that Gianna's filiation (as the presumed legitimate child of Aimee and her ex-husband) has been successfully impugned? Otherwise, what would be the logic behind applying RA 9255 (An Act Allowing Illegitimate Children to Use the Surname of Their Father) which applies only to illegitimate children? 6. Does not question (c) assume that the marriage of Aimee and her ex-husband was void ab initio (that is, from the very beginning) as if there was no marriage at all? For, indeed, does not the problem speak of judicial declaration of nullity, not annulment? If the marriage of Aimee to her ex-husband was void from the very beginning, should it be considered as an impediment disqualifying Aimee and Andy to marry each other especially and particularly for

purposes of Gianna's legitimation? Is not the judicial declaration of nullity relevant and necessary only for purposes of remarriage? Is not this the interpretation that will promote the best interest of the child?

Clarification of points to ponder: Re point 1. Questions (a) (i)and (ii) asks for the successful prosecution of the causes stated therein. However, it only speaks of a judicial action for correction of entries. Such action (under Rule 108 of the Rules of Court) may either be summary or adversarial. If the entry/entries to be changed is/are innocuous then the action may be summary; if substantial, then adversarial. (But see Silverio v. Republic, G.R. No. 174689, 22 October 2007, which states that RA 9048 (An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil Register Without Need of a Judicial Order) removed from the ambit of Rule 108 of the Rules of Court the correction of clerical or typographical errors and that Rule 108 now applies only to substantial changes and corrections in entries in the civil register.) Re point 4. Question (a)(i) is effectively an action to impugn the legitimacy of Gianna. But is a judicial action for correction of entries in the civil registry the proper remedy to institute for that purpose? Is it not a collateral attack on the status of Gianna as a legitimate child and therefore proscribed? If it is an improper remedy, can it ever be successful? Re point 6. What are the essential and formal requisites of marriage? Are not these, particularly the legal capacity of the parties (their age, subsisting marriage, relationship, etc.) , the matters which may constitute as a legal impediment that may disqualify the parents of a child from getting married for purposes of legitimation? What is the significance of the judicial declaration of nullity? Does it make the marriage void ab initio or does it simply declare (or recognize) the invalidity of the marriage?

Jons dissection of the case at bar is very instructive and illuminating. The case he cited (Concepcion vs. CA), penned by Justice Corona, gives me a transparent view of this intricate issue which in turn saves me further from falling into error. Let me quote the Supreme Courts introduction in the Concepcion case. Quote: The child, by reason of his mental and physical immaturity, needs special safeguard and care, including appropriate legal protection before as well as after birth. In case of assault on his rights by those who take advantage of his innocence and vulnerability, the law will rise in his defense with the single-minded purpose of upholding only his best interests.

Does the law always rise when a childs rights are assaulted by those who take advantage of his innocence and vulnerability? If so, why then the Supreme Court blindly adhered to the ersatz rule of technicality in Barco vs. CA (2004) and condoned the Trial Courts granting of a mothers petition to change the status of her daughter from legitimate to illegitimate despite

the fact that the latter was conceived during the subsistence of her mothers marriage with her ex-husband? In Barco, the petitioner raised the following issue, among others. Quote: The RTC Order contravenes the legal presumption that children born during the pendency of a marriage are legitimate and the rule that legitimate children cannot adopt the surname of a person who is not their father. This is what the Supreme Court pronounced. Quote: In the same vein, it is of no moment that the RTC Order contravenes the legal presumption accorded June of being the legitimate child of Francisco and Nadina. A review of the records does indicate the insufficiency of the evidence offered to defeat the presumption, against which the only evidence admissible is the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. It seems that the RTC relied primarily on the testimony of Nadina in adjudging that Gustilo, and not Francisco, was the father of June. Yet, Article 256 of the Civil Code renders ineffectual any pronouncement against legitimacy made by the mother. The testimony proffered by the mother has no probative value as regards Junes paternity. The RTCs cognizance of Gustilos Constancia might likewise be subject to critical scrutiny. But the Court is now precluded from reviewing the RTCs appreciation of the evidence, however erroneous it may be, because the Order is already final. The RTCs possible misappreciation of evidence is again at most, an error in the exercise of jurisdiction, which is different from lack of jurisdiction. These purported errors do not extend to the competence of the RTC to decide the matter and as such does not constitute a valid ground to annul the final order. Quote: The inevitable conclusion is that the RTC Order, despite its apparent flaws, is not null and void, and thus cannot be annulled. Consequently, the Court of Appeals committed no reversible error in issuing the assailed decision.

Manresa asks: Quote: Does the law always rise when a childs rights are assaulted by those who take advantage of his innocence and vulnerability? If so, why then the Supreme Court blindly adhered to the ersatz rule of technicality in Barco vs. CA (2004) and condoned the Trial Courts granting of a mothers petition to change the status of her daughter from legitimate to illegitimate despite the fact that the latter was conceived during the subsistence of her mothers marriage with her ex-husband?

Indeed, why did the Supreme Court blindly [adhere] to the ersatz rule of technicality in Barco

[v.] CA ([G.R. No. 120587, 20 January] 2004[, 420 SCRA 162]) and condoned the [grant by the Regional Trial Court (RTC)] of a mothers petition to change the status of her daughter from legitimate to illegitimate despite the fact that the latter was conceived during the subsistence of her mothers marriage with her ex-husband? Allow me to rise in defense of the Court. Rules of procedure are not to be disdained as mere technicalities. Adjective [or procedural] law is important in insuring the effective enforcement of substantive rights by providing for a system under which suitors may be heard in peaceful confrontation before a judge whose authority they acknowledge. The other alternative is the settlement of their conflict through the barrel of the gun. (Santos v. Court of Appeals, G.R. No. 92862, 04 July 1991) Procedural rules have their own wholesome rationale in the orderly administration of justice. Justice is to be administered according to the rules in order to obviate arbitrariness, caprice or whimsicality. (Vasco v. Court of Appeals, 171 Phil. 673 [1978]) (Of course, against this, it can be said that the Supreme Court has also ruled in many instances that the rules of procedure ought not to be applied in a very rigid, technical sense, for they have been adopted to help secure -- not override -- substantial justice. ) Barco concerned the annulment of a final judgment of the trial court granting "a mothers petition to change the status of her daughter from legitimate to illegitimate. The Court discussed the concept of an action to annul judgment. The Court said: Quote: Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly provides only two grounds for annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. This express limitation is significant since previous jurisprudence recognized other grounds as well. The underlying reason is traceable to the notion that annulling final judgments goes against the grain of finality of judgment. Litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that once a judgment has become final the issue or cause involved therein should be laid to rest. The basic rule of finality of judgment is grounded on the fundamental principle of public policy and sound practice that at the risk of occasional error, the judgment of courts and the award of quasi-judicial agencies must become final at some definite date fixed by law.

Under this premise, the Court later on stated in the same case: Quote: [T]he RTCs error in ordering the change of name is merely an error in the exercise of jurisdiction which neither affects the courts jurisdiction over the [mothers] petition nor constitutes a ground for the annulment of a final judgment.

Nonetheless, coming back to the matter covered by the problem under consideration

(Problem No. IV of the 2008 Bar Exam in Civil Law), the Court pointed out in Barco: Quote: [T]he RTC Order contravenes the legal presumption accorded [the daughter] of being the legitimate child of [the ex-husband] and [the mother].

(Although of course, as Manresa quoted above, the Court ruled that this was of no moment because the [RTCs] Order is already final. The RTCs errors were errors in the exercise of jurisdiction, which is different from lack of jurisdiction. And annulment of judgment is available only on the ground of lack of jurisdiction. For those of us who would not gladly embrace the Courts ruling, let us be comforted by the thought that the Court knows its limitations as it acknowledges thatWe are not final because we are infallible, but we are infallible only because we are final (US Supreme Court Justice Robert H. Jackson).) Further, Barco declares: Quote: Article 256 of the Civil Code renders ineffectual any pronouncement against legitimacy made by the mother.

In this connection (and going back to the problem under consideration), the entry made by Aimee and Andy that Gianna was their legitimate daughter was effectively a pronouncement by Aimee against the presumption accorded to Gianna as the legitimate child of Aimee and her ex-husband.

V. Despite several relationships with different women, Andrew remained unmarried. His first relationship with Brenda produced a daughter, Amy, now 30 years old. His second, with Carla, produced two sons: Jon and Ryan. His third, with Donna, bore him two daughters: Vina and Wilma. His fourth, with Elena, bore him no children although Elena has a daughter Jane, from a previous relationship. His last, with Fe, produced no biological children but they informally adopted without court proceedings, Sandy, now 13 years old, whom they consider as their own. Sandy was orphaned as a baby and was entrusted to them by the midwife who attended to Sandys birth. All the children, including Amy, now live with Andrew in his house. a) Is there any legal obstacle to the legal adoption of Amy by Andrew? To the legal adoption of Sandy by Andrew and Elena? (2%) b) In his old age, can Andrew be legally entitled to claim support from Amy, Jon, Ryan, Vina , Wilma and Sandy assuming that all of them have the means to support him? (1%)

c) Can Amy, Jon, Ryan, Vina, Wilma and Sandy legally claim support from each other? (2%) d) Can Jon and Jane legally marry? (1%)

Let me try again. a) Yes, there is. A person of good moral character, which is one of the qualifications of those who may adopt, is not possessed by Andrew. Fathering several children by different women out of marriage demonstrates Andrewss lack of good moral character. Andrew and Elena cannot adopt Sandy because they are not legally married. Only husband and wife can jointly adopt under the law. b) Yes, Andrew can be legally entitled to claim support from his illegitimate children (Amy, Jon, Ryan, Vina and Wilma) because parents and their illegitimate children are bound to support each other under the law. Andrew cannot however claim support from Sandy since the latter is not a legal adoptee of the former, having not been adopted by judicial process. c) Only Amy, Jon, Ryan, Wilma and Vina can legally claim support from each other because the law requires brothers and sisters, whether full or half-blood, to support each other. They cannot claim support from Sandy and vice versa because the latter is not their sister. In fact he is not even a legal adoptee of their father. d) Jon and Jane can legally marry because the law does not prohibit a marriage between stepbrothers and step-sisters, provided that they have the legal capacity to contract marriage.

Thanks for this Atty. Manresa. I hope this will come out on our midterm exams. God Bless and keep them coming.

a) Is there any legal obstacle to the legal adoption of Amy by Andrew? To the legal adoption of Sandy by Andrew and Elena? (2%) none. Andrew is not married therefore, there is no consent of spouse needed.

VI. Alex died without a will, leaving only an undeveloped and untitled lot in Taguig City. He is survived by his wife and 4 children. His wife told the children that she is waiving her share in the property, and allowed Bobby, the eldest son who was about to get married, to construct his house on of the lot, without however obtaining the consent of his siblings. After settlement of Alexs estate and partition among the heirs, it was discovered that Bobbys house was constructed on the portion allocated to his sister, Cathy. Cathy asked Bobby to demolish his house and vacate the portion allotted to her. In lieu of demolition, Bobby offered to purchase from Cathy the lot portion on which his house was constructed. At that time, the house was valued at P300,000 while the portion of the lot on which the house was

constructed was valued at P350,000. a) Can Cathy lawfully ask for demolition of Bobbys house? (3%) b) Can Bobby legally insist on purchasing the land? (2%)

Alex died without a will, leaving only an undeveloped and untitled lot in Taguig City. He is survived by his wife and 4 children. His wife told the children that she is waiving her share in the property, and allowed Bobby, the eldest son who was about to get married, to construct his house on of the lot, without however obtaining the consent of his siblings. After settlement of Alexs estate and partition among the heirs, it was discovered that Bobbys house was constructed on the portion allocated to his sister, Cathy. Cathy asked Bobby to demolish his house and vacate the portion allotted to her. In lieu of demolition, Bobby offered to purchase from Cathy the lot portion on which his house was constructed. At that time, the house was valued at P300,000 while the portion of the lot on which the house was constructed was valued at P350,000. a) Can Cathy lawfully ask for demolition of Bobbys house? (3%) b) Can Bobby legally insist on purchasing the land? (2%) Let me try a) No she cannot because Bobby was not in bad faith when he built the house. It is evident that Bobby believed in good faith that the lot on which the house was built was his equal share of the inheritance and therefore it belonged to him. b) As a general rule, only Cathy (owner of the land) has the option to acquire the building after payment of indemnity to Bobby or oblige him to pay for the land. Its up to Cathy as to which option she shall elect. Hence, Bobby cannot legally insist on purchasing the land.

Try lang po: a) Yes. The owner of the land on which anything has been built in bad faith may demand the demolition of what has been built to replace things in their former condition. Bobby is a builder in bad faith having failed to obtain the consent of his siblings at the time he constructed his house knowing fully well that the property is still undeveloped, untitled and still under settlement among Alex's heirs. Hence, Cathy as the owner can demand demolition of what has been built on her land. b) No. The option to appropriate the property is the right of the owner of the land and not by the builder, planter or sower. Bobby cannot therefore insist on purchasing the land from Cathy as he has no right under the law to appropriate it.

A. yes. ownership belongs to cathy. Basta yung Concept of ownership B. No. Bobby is considered in bad faith by law.

VII. Anthony bought a piece of untitled agricultural land from Bert. Bert, in turn, acquired the property by forging Carlos signature in a deed of sale over the property. Carlo had been in possession of the property for 8 years, declared it for tax purposes, and religiously paid all taxes due on the property. Anthony is not aware of the defect in Berts title, but has been in actual physical possession of the property from the time he bought it from Bert, who had never been in possession. Anthony has since then been in possession of the property for one year. a) Can Anthony acquire ownership of the property by acquisitive prescription? How many more years does he have to possess it to acquire ownership? (2%) b) If Carlo is able to legally recover his property, can he require Anthony to account for all the fruits he has harvested from the property while in possession? (2%) c) If there are standing crops on the property when Carlo recovers possession, can Carlo appropriate them? (2%)

I would like to share may answer here, with all humility, I do not mean that this would be the absolute answer. I do believe that good learner is a good listener, but a wise one not just listened, but accepts his mistakes as well. Wise leaders are mold with magnificent iron smith, the flame of which from where he was forged is the virtue of his being a good follower. There is dilemma in arresting this question, because there are two prescriptions involve in this case, prescription by virtue of OCENCO, (open, continuous, exclusive, and notorious, occupation) and prescription by virtue of a forged deed. The land is agricultural and said to be untitled so somehow is safe to presume that it is alienable, therefore may be acquired by prescription without regard to the existence of a forged deed which a rightful owner may neglect to invalidate. Another rule applicable is that no right or title is conferred into by a forged or fraudulent deed, hence, prescription may not be applicable.

Another confusing information is that Carlo has been in possession of the land for 8 years, Anthony on the other hand possessed the same for one year. Does this mean Carlo after 8 years, no longer in possession of the said land and, with or without his knowledge, Anthony was able to occupy the same land?. Anyway, since the question is only two points, I gamble using the OCENCO prescription and disregard the forged deed.

VII.a Yes, since the agricultural land is untitled, hence, it can be acquired by prescription. Anthony who is in possession of the said land under a bonafide claim of ownership has to continue in possession of said property for a period of 29 years. Yes, to validly acquire ownership of the land by acquisitive prescription, actual possession is necessary.

VII.b No, Anthony is a possessor in good faith, hence, he cannot be required by Carlo to account for all the fruits he harvested while in possession of said land. He may only have the right to appropriate those crops that may have been existing at the time of recovery. VII.c Letter C is quite difficult to answer, because from facts Carlo has no absolute claim of ownership over the land because it was not registered to his name. He may therefore no right to appropriate the crops being not the owner therefrom. However, there are rules to be followed in determining who has the superior right to claim ownership of the land. First, is the one who holds the registered title, second, the one who holds the oldest documents of title, third, the one who exercises prior possession of the land in dispute. nonetheless, as an examinee, we have no choice but to arrest this qustion, here is my answer proper. Yes, Carlo who has the superior claim of ownership over the land, has the right to appropriate the standing crops upon payment of appropriate indemnification. (I believe, this question may invite some sort of alternative answers)

With due respect, isnt your answers are conflicting. In the first answer you said Anthony should continue to be in possession for 29 years, it means he should complete the 30-year period for acquisitive prescription. Isnt the 30 year acquisitive prescription applies to a possessor in bad faith, and yet in the second answer you said Anthony is a possessor in good faith. Just a thought please correct me if im wrong.

With due respect, isnt your answers are conflicting. In the first answer you said Anthony should continue to be in possession for 29 years, it means he should complete the 30-year period for acquisitive prescription. Isnt the 30 year acquisitive prescription applies to a possessor in bad faith, and yet in the second answer you said Anthony is a possessor in good faith. Just a thought please correct me if im wrong.

There are two articles in the Civil Ccode related to this problem, Art. 1134 and 1137. Art. 1134 provides: Ownership and other real rights over immovable property are acquired by ordinary prescription though possession of ten years, while, art. 11347 provides: Ownership and other real rights over immovable also prescribe through uninterrupted adverse possession thereof for thirty years, without need of title or of good faith. Underscoring the phrase without need of title, In my own appreciation of this problem, I believed that art. 1137 is the article applicable in this case. I gave much attention to facts given

in the problem that it speaks of untitled agricultural land; hence, the 10 years possession in good faith may not be applicable. Thus, in such a dazzling question that similarly runs into my mind, it may be conceded that Anthony has acquired the land in good faith, but does this mean 10 years prescription will immediately apply in this case? How about an equally important facts that Anthony has dealt with such an untitled agricultural land of which in order to perfect his claim of ownership, he has to maintain possession of said land for a period of 30 years? At this point, there is no time of stumbling further, so I decided to adopt the latter view disregarding whatsoever, the presence of good faith or bad faith. Further, the Public Land Act provides that judicial confirmation of imperfect or incomplete title can be done by Filipino citizens who by themselves or through their predecessor-in-interest have been in open, continuous, exclusive and notorious possession and occupation of two classes of lands, to wit: a.Alienable and disposable lands of public domain under bona fide claim of acquisition since June 12, 1945 or prior thereto. b.Agricultural lands of public domain under a bona fide claim of acquisition of ownership for at least 30 years or at least since January 24, 1947. It bears stressing that absence of any title to said land in issue; it remains under the classification of agricultural land of public domain. In my humble appreciation of this case, insofar as acquisitive prescription is concerned, good faith or bad faith is of no moment and bears no significance (applying thereon the provision of Article 1137). Such manner of acquiring ownership however, may thus affect the right of the true owner to appropriate the fruits upon payment of indemnification, hence, there could have been no conflict as the facts and circumstances in this case may somehow admit of two different application. This is just my fair and modest view Dawnsaint_01, it humby admits some other views that may come from somewhere. thanks for your constructive clarification. To HIM is the glory!!!!!

With due respect to egh, the title being contemplated in the requirement for an ordinary prescription of 10 is a just title i.e.,there was a mode of acquiring ownership but the grantor was not the owner, example of which is through a forged document from the seller; hence, this case falls under the purview of ordinary prescription which requires a just title and good faith aside from OCENCO. Therefore 10 year prescription applies.

Can Anthony acquire ownership of the property by acquisitive prescription? How many more years does he have to possess it to acquire ownership? (2%) b) If Carlo is able to legally recover his property, can he require Anthony to account for all the fruits he has harvested from the property while in possession? (2%) c) If there are standing crops on the property when Carlo recovers possession, can Carlo

appropriate them? (2%) A. NO. Anthony cannot acquire ownership of the property by acquisitive prescription. The deed of sale was forged. A forged document is not a just title. He cannot acquire ownership over the property by virtue of possession of it since OCEN is lacking. B. No. The harvested fruits belong to Anthony C. Yes. Carlo can appropriate the standing crops provided he pays Anthony of "necessary" expenses

anthony is in good faith and with just title, hence ordinary acquisitive prescription will apply. there will be no tacking of Bert and Anthony's possession because they have adverse interests. Hence, Anthony needs 9 more years to acquire the property. because anthony is in good faith, he is entitled to the fruits harvested/severed while in possession in good faith. yes. Carlo can appropriate the fruits but he must share in the net harvest and expenses in cultivation proportionate to Carlo's and Anthony's possession. The sharing will be after the harvest. hula lang.

on the other hand, i think john wong is correct. there's no just title because the deed is forged. it's a requisite that a title must be true in order for prescription to run.

i go with lilibeth. all her answers seems the correct one. i think that just title doesn't equate to valid title. if you acquire a property through a valid title then you don't need prescription. you don't have to wait for 10 or 30 years before you can be considered as a legal owner. that seems a reasonable conclusion. however, my questions are: 1..may a forged deed be considered a colorable title? 2. belief of the vendee is the determining factor for good faith. is it also the determining factor for just title?

VIII. Adam, a building contractor, was engaged by Blas to construct a house on a lot which he (Blas) owns. While digging on the lot in order to lay down the foundation of the house, Adam hit a very hard object. It turned out to be the vault of the old Banco de las Islas Filipinas. Using a detonation device, Adam was able to open the vault containing old notes and coins which were in circulation during the Spanish era. While the notes and coins are no longer legal tender, they were valued at P 100 million because of their historical value and the coins silver and nickel content. The following filed legal claims over the notes and coins:

i) Adam, as finder; ii) Blas, as owner of the property where they were found; iii) Bank of the Philippine Islands, as successor-in-interest of the owner of the vault; and iv) The Philippine Government because of their historical value. a) Who owns the notes and coins? (4%) b) Assuming that either or both Adam and Blas are adjudged as owners, will the notes and coins be deemed part of their absolute community or conjugal partnership of gains with their respective spouses? (2%)

VIII. Adam, a building contractor, was engaged by Blas to construct a house on a lot which he (Blas) owns. While digging on the lot in order to lay down the foundation of the house, Adam hit a very hard object. It turned out to be the vault of the old Banco de las Islas Filipinas. Using a detonation device, Adam was able to open the vault containing old notes and coins which were in circulation during the Spanish era. While the notes and coins are no longer legal tender, they were valued at P 100 million because of their historical value and the coins silver and nickel content. The following filed legal claims over the notes and coins: i) Adam, as finder; ii) Blas, as owner of the property where they were found; iii) Bank of the Philippine Islands, as successor-in-interest of the owner of the vault; and iv) The Philippine Government because of their historical value. a) Who owns the notes and coins? (4%) b) Assuming that either or both Adam and Blas are adjudged as owners, will the notes and coins be deemed part of their absolute community or conjugal partnership of gains with their respective spouses? (2%) Let me try this. a. The notes and coins are owned by both Adam and Blas with a 50-50 sharing. Under the NCC, Hidden Treasure belongs to the owner of the land, buildings or other property on which it is found. An exception would be, finder would be entitled to 1/2 of the treasure if made on the property of another, by chance and he is not a trespasser. b. Yes, the hidden treasure will form part of their community property. Under the NCC, The finder will be entitled to the 1/2 of the treasure if: the finder is not married under the absolute community or the conjugal partnership system(otherwise his share belongs to the community). Clearly, there is a presumption in the code that if there is no mention as to what property regime exist at or during the marriage, the same shall be presumed to be absolute community, which is the case at bar.

Hence, the treasure shall form part of the absolute community of property with their respective spouses.

hi law-man! i think BPI, as successori-in-interest, is the owner. the law provides that the treasure's owner be unknown. unfortunately, in the case at bar, the vault belongs to the predeccessor of BPI.

blimpi wrote: law-man wrote: Under the NCC, Hidden Treasure belongs to the owner of the land, buildings or other property on which it is found. An exception would be, finder would be entitled to 1/2 of the treasure if made on the property of another, by chance and he is not a trespasser.

hi law-man! i think BPI, as successori-in-interest, is the owner. the law provides that the treasure's owner be unknown. unfortunately, in the case at bar, the vault belongs to the predeccessor of BPI.

Ate Blimps, I concur. The law requires that the owner of the found treasure should be unknown. Since in this case, there is a successor-in-interest, the treasure shall rightfully be given to the latter. On the other hand, I just wonder how would one answer the second sub-question if such predecessor be adjudged the righful owner thereof... Or perhaps the same is a leading question intended to confuse the examinees and to lead them to believe otherwise.

Blimpi. That could be an alternative answer or mine would be an alternative answer. I used the reasoning that the first question is related to the second answer. But a point of question? If I found the Yamashita treasure in my lot? would his successor in interest sue me for the ownership? will it succeed? Just like the Golden Buddha of Baguio? Have you ever heard or read that a sunken galleon in Batangas has been retrieve and its contents is now or is shown in a museum? how about the gold coins on it? Did the Govt. of spain or successor in interest of who ever owned the same, claimed ownership? From what I understand to be considered hidden treasure is that, during the discovery of the precious objects, the lawful ownership of which does not appear. In the problem, it says, It turned out....would this be considered an aftermath?

Anyway, your answers will be merited based on the quality and sound reasoning. Also, during the breakfast with the Deans, The Chairman said that you might find the questions may go either way, then the merit will be based on the quality and soundness of the reasoning.

Olem wrote: On the other hand, I just wonder how would one answer the second sub-question if such predecessor be adjudged the righful owner thereof...

hi olem! hay, as for that, i try to read one question at a time as some examiners deliberately make their questions seem interrelated to confuse the examinees into thinking that they're giving a lead. tumagal ako sa tanong na ito dahil sa second subquestion na yan exactly because i was thinking na baka nga related. pero i went ahead and answered that it's BPI. Law-man, tagal ko din tlga inisip if dapat ba maconsider na BPI should claim it. pero i don't think we should compare it with yamashita and the golden buddha, although i found that funny, sorry kasi diba ung kay yamashita di ba stolen ung mga un? mga loot nya or something like that. i dunno, i'm not into that kasi. but my point lang kasi talaga is that, the vault is lawfully owned by the Islas Filipinas something, and the owner (or at least the successor-in-interest) is traceable. the spanish coins, i dont think it's fair to compare that with this also kasi, i dunno, i guess it's because...hahaha, i have yet to find a "lawyerly" answer to that. for now, it's a lawyerly "just because"

blimpi wrote: Olem wrote: On the other hand, I just wonder how would one answer the second sub-question if such predecessor be adjudged the righful owner thereof...

hi olem! hay, as for that, i try to read one question at a time as some examiners deliberately make their questions seem interrelated to confuse the examinees into thinking that they're giving a lead. tumagal ako sa tanong na ito dahil sa second subquestion na yan exactly because i was thinking na baka nga related. pero i went ahead and answered that it's BPI.

Law-man, tagal ko din tlga inisip if dapat ba maconsider na BPI should claim it. pero i don't think we should compare it with yamashita and the golden buddha, although i found that funny, sorry kasi diba ung kay yamashita di ba stolen ung mga un? mga loot nya or something like that. i dunno, i'm not into that kasi. but my point lang kasi talaga is that, the vault is lawfully owned by the Islas Filipinas something, and the owner (or at least the successor-in-interest) is traceable. the spanish coins, i dont think it's fair to compare that with this also kasi, i dunno, i guess it's because...hahaha, i have yet to find a "lawyerly" answer to that. for now, it's a lawyerly "just because"

Hi ate pareho tayo ng sagot dito.

I agree with you Blimpi. My answer will just be the alternative answer. The last paragraph in the definition was the "lawful ownership does not appear". I read last night an old case related to it and your answer is the right one. Anyway, all the examinees will be graded based on the quality and sound reasoning. Pero yung yamashita & golden buddha, although we can say that they are not lawful owned, you did not touch on the sunken treasures in batangas which the spanish goverment could rightfully claim theirs.he he

The hidden treasure is not of interest to science or the arts, hence the Philippine Government cannot acquire it. BPI as successor-in-interest cannot recover the hidden treasure from its finder because the treasure was not purposely hidden by the owner. Hence, the treasure is considered lost and therefore becomes hidden treasure. In this connection, I am inclined to subscribe to Law-mans suggested answer.

With respect to question b, I answered that it is part of conjugal partnership property which has legal basis under Art 116(4) "The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found; (hindi ko alam exactly ung art116 but my reasoning points to that same direction parang naalala ko lang cya during the exam kaya I answered that way)

ahm... ako naman.. let me try..

the owner of the coins and notes is the owner of the house... the law provides that to the owner shall belong all the accessions found in his land or property... in this regard, due to principle of accession, it is the owner of the land who has exclusive ownership of the notes and coins... although, the finder is entitled to 1/2 of the treasure found therein as his prize. ( di ba ownership ang tinatanong... )

wow, pano ko ba sinagot yan? Hehe namisplaced na yata ng ibang data ang utak ko. Aw, my premised was on the definition of "hidden treasure" then yeah.. the ownership is not unknown? Hence I thought na the rule on Hidden treasure will not apply. Whatever the correct answer be, I just hope na the examiner will give credit na lang sa penmanship ko. The questions were tricky talaga. Halos lahat ng questions will try to mislead the examiners (including me). Like the blind testator.. etc. Now I realized na kailangang maganda ang fundamentals mo sa law. Sometimes what we are required of lang pala e simpleng rule. Because all the questions according to some are law basics (how I wish I could say that, hehe). Wala pa akong karapatan to discuss every detail of my answers cuz I know na-- I may be right or wrong depending on the examiner's indulgence.. With a few hours to beat, minsan mahirap mag-isip at magcompose ng magandang arguments.. Iba pala talaga kapag nasa room ka na at pilit mong hinuhugot ang lahat ng rules at axiom na dapat mong ilagay sa booklet mo. last week na.. sana biyayaan tayo ng wisdom ni Lord so that we coud fish out the relevant facts; and through proper analysis, we could somehow impress our examiners sa tamang appreciation ng case.. Bless us all, God.. and for the last few days, mag-ingat pa rin tayo. Dahil sa panahon ngayon.. "bawal magkasakit!"

I answered it i favor of BPI as successor in interest because it could never be the state because the state is already aware that whatever shall be owned by the previous owner of the bank it follows sa successor lahat un so the lawful ownership of such coins are known to everyone.

i agree with the proposition that this question would call for alternative answers though. my answer was just a straight application of the hidden treasure provision. although i wasnt able to argue na rin why it was hidden treasure coz i was time pressured. but i think its hidden treasure because the question said who owned the coins and notes? you can argue that the fact BPI owns the vault does not mean ipso facto that they own the notes and coins. so by that line of reasoning you can say the purported ownership of the notes and

coins remains unknown and so hidden treasure sya. it was quite hard for me to say na BPI was the real owner coz i cant find any legal basis for doing so conclusively na the fact BPI owned the vault sya rin yung may-ari ng coins. anyhow, i think one can still argue the other side and get credit basta logical, hopefully

Ako rin ung definition nlang ng hidden treasure ako nag rely. hehe

IX. The properties of Jessica and Jenny, who are neighbors, lie along the banks of the Marikina River. At certain times of the year, the river would swell and as the water recedes, soil, rocks and other materials are deposited on Jessicas and Jennys properties. This pattern of the river swelling, receding and depositing soil and other materials being deposited on the neighbors properties have gone on for many years. Knowing this pattern, Jessica constructed a concrete barrier about 2 meters from her property line and extending towards the river, so that when the water recedes, soil and other materials are trapped within this barrier. After several years, the area between Jessicas property line to the concrete barrier was completely filled with soil, effectively increasing Jessicas property by 2 meters. Jennys property, where no barrier was constructed, also increased by one meter along the side of the river. a) Can Jessica and Jenny legally claim ownership over the additional 2 meters and one meter, respectively, of land deposited along their properties? (2%) b) If Jessicas and Jennys properties are registered, will the benefit of such registration extend to the increased area of their properties? (2%) c) Assume the two properties are on a cliff adjoining the shore of Laguna Lake. Jessica and Jenny had a hotel built on the properties. They had the earth and rocks excavated from the properties dumped on the adjoining shore, giving rise to a new patch of dry land. Can they validly lay claim to the patch of land? (2%)

IX.a No, riparian owners may have the right of accretion only if the soil deposit was formed in a gradual or imperceptible manner, free from any human intervention. IX.b No, title registration to a particular land will not automatically extend to any alluvial deposit. To acquire ownership, a registration process must be done separately. In fact even a third person may acquire ownership of this land by virtue of prescription.

IX.c No, for the same reason that the formation of said dry land is caused by human intervention, or was not due to natural process.

X. Arthur executed a will which contained only: (i) a provision disinheriting his daughter Bernice for running off with a married man, and (ii) a provision disposing of his share in the family house and lot in favor of his other children Connie and Dora. He did not make any provisions in favor of his wife Erica, because as the will stated, she would anyway get of the house and lot as her conjugal share. The will was very brief and straightforward and both the above provisions were contained in page 1, which Arthur and his instrumental witness, signed at the bottom. Page 2 contained the attestation clause and the signatures, at the bottom thereof, of the 3 instrumental witnesses which included Lambert, the driver of Arthur; Yoly, the family cook, and Attorney Zorba, the lawyer who prepared the will. There was a 3rd page, but this only contained the notarial acknowledgement. The attestation clause stated the will was signed on the same occasion by Arthur and his instrumental witnesses who all signed in the presence of eeach other, and the notary public who notarized the will. There are no marginal signatures or pagination appearing on any of the 3 pages. Upon his death, it was discovered that apart from the house and lot, he had a P 1million account deposited with ABC Bank. a) Was Erica preterited? (1%) b) What other defects of the will, if any, can cause denial of probate? (2%) c) Was the disinheritance valid? (1%) d) How should the house and lot, and the cash be distributed? (1%)

There can be a lot of presumptions available to question number 10. For instance, if your answer in b.c, there is no valid disinheritance, then Bernice is merely preterited, hence, the will is valid but the institution of heirs will not not be valid insofar as the right of Bernice to legitime is concerned. The distribution therefore will be different. Another presumption is the conjugal house which can be considered as family home, hence, may not be subject to partition for a period of 10 years or as long as one of the minor beneficiaries is living therein. The distributable estate therefore may refer only to cash deposit. In answering the problem, I decided to minimize recourse of using too much presumption. I suspect this problem could bring a lot of different presumptions that may arrive at different distribution. The problem is what could have been the presumptions that the examiner have in

his/her mind. I know a lot of us pray that it would match our own appreciation of the problem, nevertheless, i would like to share my answer to this problem.

X.a No, preterition takes place only when an heir belonging to a direct lines is totally omitted in a will, in this case Erica is not an heir belonging to a direct line, hence, there is no preterition. X.b The following are the defects that may cause denial to probate of the aforementioned will: 1.Lack of 3 instrumental witnesses as one of them is a lawyer who at the same time is also the one who notarized the will. 2.Absence of marginal signatures or pagination which should appear on each page except the last page. 3.The acknowledgement does not mention such information as to how many pages the will is consist of. X.c Yes, to live a dishonorable life is one of the valid grounds for disinheritance.

X.d As to the house and lot, it shall be distributed as follows: 1.Since it is a conjugal property, of the value shall go to Erica, the surviving wife: 2.The other half value of the house and lot together with the P1M cash deposit shall be distributed in the following manner: of the value shall go to Erica, this represents her legitime. The testator cannot ignore in his will the legitime of the compulsory heirs. The remaining value shall be divided equally between Connie and Dora. Since there is a valid disinheritance, Benice shall have no right to share in the P1M cash deposit even if this was not included in a will. Neither is she entitled to her legitime.

I concur to EGH's answers for a, b, and d. However, I will digress for d. Intestate succession will come in to this case since the will is rendered not valid because of the grounds EGH has correctly sited. As such, the value of all of Arthur's estate shall be divided in the following manner: one-third each goes to Erica, Connie and Dora. This is because the surviving spouse's share is equal to the share of one legitimate child.

just a thought, how can the disinheritance be valid if the will was void? remember disinheritance needs a valid will to be effective. thus, should not bernice share too?

There is a valid will in this case despite the absence of the marginal signature and pagination since its primary purpose is to prevent insertions of additional pages to the will but in this case, the will consist only of a single page, hence will be probated. With regards to the no of witnesses, all are capacitated to witness, it could be inferred that the lawyer who acted as witness and prepared the will was not the same notary public who notarized the will as stated in the problem, to wit; "The attestation clause stated the will was signed on the same occasion by Arthur and his instrumental witnesses who all signed in the presence of eeach other, and the notary public who notarized the will." As to their share, Erica, Connie and Dora will get 1/4 each and the 1/4 free portion will be divided between Connie and Dora since they were favored and instituted in the will.

i thought of that too, i.e., substantial compliance since there was only one page. however, the possibility of substitution of pages still exists. I remember there is a recent case penned by justice tinga (around march 2006) i think which says that the absence of Number of pages stated in the attestation clause is beyond the substantial compliance rule. i agree if the two pajjoc mentioned were the only defects but they are not. er go, i submit the will was not valid so intestacy results. no valid disinheritance as well. just my two cents worth again.

XI. John and Paula, British citizens at birth, acquired Philippine citizenship by naturalization after their marriage. During their marriage the couple acquired substantial landholdings in London and in Makati. Paula bore John three children, Peter, Paul and Mary. In one of their trips to London, the couple executed a joint will appointing each other as their heirs and providing that upon the death of the survivor between them the entire estate would go to Peter and Paul only but the two could not dispose of nor divide the London estate as long as they live. John and Paula died tragically in the London Subway terrorist attack in 2005. Peter and Paul filed a petition for probate of their parents will before a Makati Regional Trial Court. a) Should the will be admitted to probate? (2%) b) Are the testamentary dispositions valid? (2%) c) Is the testamentary prohibition against the division of the London estate valid? (2%)

Let me try, neither an alternative nor a suggested answer. 1. No, the will should not be admitted for probate. A joint will is prohibited under the law on succession 2. Assuming that the will is not a joint will. The testamentary disposition is not valid because of preterition of compulsory heir and the prohibition on disposition of legitimes by the testator. 3. On the presumption that the will is valid. The testamentary disposition is not valid because under the law on succession the testator is prohibited to impose any condition or whatsoever upon the legitimes.

XII. Ernesto, an overseas Filipino worker, was coming home to the Philippines after working for so many years in the Middle East. He had saved P100,000 in his savings account in Manila which he intended to use to start a business in his home country. On his flight home, Ernesto had a fatal heart attack. He left behind his widowed mother, his common-law wife and their twin sons. He left no will, no debts, no other relatives and no other properties except the money in his savings account. Who are the heirs entitled to inherit from him and how much should each receive? (3%)

Discussion: This is a very simple question but somehow difficult to answer, let me share my dilemma in answering this question during the bar proper. I cannot remember any provision applicable in this case, what I remember is when the illegitimate children are concurred with legitimate parents and legitimate spouse wherein by intestate succession, will go to legitimate parents, to legitimate spouse and shall go to illegitimate children. In this case, since common law wife is not entitled, the problem is to whom her suppose share shall be distributed? Is it to be distributed equally between the widowed mother and the illegitimate twin sons? Or it should be divided proportionally among them. There are two principles can be applied in this case, the proximity and the concurrence principle. Applying the concurrence theory the 100,000.00 shall be divided equally between the widowed mother and the illegitimate twin sons. By applying the proximity theory, the which should have been the share of the surviving spouse shall be distributed between the widowed mother and the illegitimate son in the ratio

of 2 is to 1 or (2/3 of 25,000.00 and 1/3 of 25,000.00). This answer will involve quite difficult manual computation so I opted the concurrence theory. So I distribute the 100,000.00 equally, to the widowed mother, and to the illegitimate twin sons. I humbly admit I do not remember any jurisprudence applicable to this problem, I encourage members to further enlighten us in this case. Thanks

i think there is a provision squarely applicable. Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate children. however, take note that the problem does not state whether the mother was his legitimate parent. maybe you can assume that from the fact that the mother is widowed but i think its safer again to qualify (the mother may have been married to another and ernesto's father could have been different or maybe ernesto was not born during the marriage). if the mother was not legitimate, then she would be excluded by the twin sons applying by analogy the law on legitimes (art 903).

thanks mccdy08 for ur geneours share that would be a great help to our readers though they may not be a lawyer or a law student, they may somehow find this topic interesting. Thanks again and more power

100 k 50 k goes to the widowed mother 25 k to twin A 25k to twin B

and what about wise she is also entitled to the money

XIII. Raymond, single, named his sister Ruffa in his will as a devisee of a parcel of land which he owned. The will imposed upon Ruffa the obligation of preserving the land and transferring it, upon her death, to her illegitimate daughter Scarlet who was then only one year old. Raymond later died, leaving behind his widowed mother, Ruffa and Scarlet. a) Is the condition imposed upon Ruffa to preserve the property and to transmit it upon her death to Scarlet, valid? (1%)

b) If Scarlet predeceases Ruffa, who inherits the property? (2%) c) If Ruffa predeceases Raymond, can Scarlet inherit the property directly from Raymond? (2%)

My partial trial answer: a. Yes, the condition is valid. We have in this case a situation which gives rise to a fideicommissary substitution whereby Ruffa is burdened with an obligation of preserving the land given to her and to transfer the same, upon her death, to her illegitimate daughter Scarlet. Further, in order that a fideicommissary substitution be sustained, the following requisites must concur, to wit: a. Said substitution must not go beyond one degree; b. The 1st heir and the 2nd heir must be alive at the time of the testators death, that is, there must be no predecease. Having complied all the foregoing requirements, the condition imposed upon Ruffa, by way of a fideicommissary substitution, is valid.

b. The death of Scarlet (second heir) even before Ruffa (fiduciary) dies shall not, in any way, affect the rights of Scarlet as regards the parcel of land provided she (Scarlet) died before the testator. The law provides that the second heir acquires a right to the succession from the time of the testators death even though he should die before the fiduciary. As such, the right of the second heir shall pass to his heirs who shall subsequently inherit from the latter the subject land. Clearly, the second heir succeeds and acquires rights, not from the fiduciary, but from the testator himself.

i wonder if the Iron Curtain rule applies in sub-question c) ?

I think that rule applies only in intestate succession, In the this case the testator expressly instituted his heirs.

that's true. but here,the first heir predeceased the 2nd heir. can't it be said that since the first heir died, the fideicommisary substitution cannot be given effect? and consequently, intestacy would arise? note, 1 of the elements of fideicommisary sub is that both 1st & 2nd heir must be alive at the time of testator's death. here, the 1st heir (Ruffa) predeceased Raymund. in addition, the will contained only the devise & nothing else.

ponente wrote: that's true. but here,the first heir predeceased the 2nd heir. can't it be said that since the first heir died, the fideicommisary substitution cannot be given effect? and consequently, intestacy

would arise? note, 1 of the elements of fideicommisary sub is that both 1st & 2nd heir must be alive at the time of testator's death. here, the 1st heir (Ruffa) predeceased Raymund. in addition, the will contained only the devise & nothing else.

Intestacy would not arise. In this case the 2nd heir would still inherit not as fideicommissary but as an ordinary substitute heir to give effect to the will of the testator that the property would end up to the 2nd heir.

what's the basis for this answer? is it the liberal application of the law or some other provision of law or jurisprudence? m not sure about the iron curtain rule, but m not sure either whether the effect of Ruffa's death here has the effect of converting the fideicommissary sub to a simple sub..

I just based that answer as explained in the book of paras and nutshell reviewer of sempio diy

sbi ko n nga b yun yng mga binasa mo

that's the liberal application of the law dawn

Dawn_23 wrote: Intestacy would not arise. In this case the 2nd heir would still inherit not as fideicommissary but as an ordinary substitute heir to give effect to the will of the testator that the property would end up to the 2nd heir.

I have to concur. There is reason to believe that intestacy shall not be applied in case the fiduciary dies ahead of the testator because of the express will of the testator that the subject property should ultimately go to the 2nd heir. This is bolstered by the fact that both the heirs are instituted, although by way of fideicommissary substitution. Elementary is a rule that in the interpretation of doubtful provisions of a will, the same shall be resolved to the effect that the testators wishes are given much credence. So too, if we are to allow intestacy to take place, it would run counter to the intent of the testator to give the property to the 2nd heir. This, I believe, is more in consonance with the testators wishes. Otherwise, the very purpose of fideicommissary substitution is rendered useless. Therefore, since the fideicommissary substitution cannot now be given effect on account of the fiduciarys death ahead of the testator, ordinary substitution shall take place. I believe that, unless there is more fitting answer to this, there is nothing more liberal in the application of law than that posited by Dawn.

My two cents.

XIV. Stevie was born blind. He went to school for the blind, and learned to read in Braille language. He speaks English fluently. Can he: a) Make a will? (1%) b) Act as a witness to a will? (1%) c) In either of the above instances, must the will be read to him? (1%)

My bar answer: a.yes becuase the law only requires that the testator be of legal age and of sound and disposing mind. b. no, because blindness is among the disqualification c. yes, as to a., ....shall be read twice...

For Me Only: a) Stevie can only make a notarial will but not holographic will. b) Stevie cannot be a witness, as provided for by law. c) In a notarial will made by Stevie, there is a requirement under the law that such will shall be read twice, one by the attesting witness and another by the notary public.

a. yes but only a notarial will b. no, because that is one of the disqualifications to be a witness to a will c. in b, no because he is even disqualification in the first place in b, it depends. if the will is written in Braille , no need to read the will to him. if not written in Braille, it must be read to him twice, once by the notary public and once by on the one of the attesting witnesses

XV. Eduardo was granted a loan by XYZ Bank for the purpose of improving a building which XYZ leased from him. Eduardo, executed the promissory note (PN) in favor of the bank, with his friend Recardo as cosignatory. In the PN, they both acknowledged that they are individually and collectively liable and waived the need for prior demand. To secure the PN, Recardo executed a real estate mortgage on his own property. When Eduardo defaulted on the PN, XYZ stopped payment of rentals on the building on the ground that legal compensation had set in. Since there was still a balance due on the PN after applying the rentals, XYZ foreclosed the real estate mortgage over Recardos property. Recardo opposed the foreclosure on the ground that he is only a co-signatory; that no demand was made upon him for payment, and assuming he is liable, his liability should not go beyond half the balance of the loan. Further, Recardo said that when the bank invoked compensation between the rentals and the amount of the loan, it amounted to a new contract or novation, and had the effect of extinguishing the security since he did not give his consent (as owner of the property under the real estate mortgage) thereto. a) Can XYZ Bank validly assert legal compensation? (2%) b) Can Recardos property be foreclosed to pay the full balance of the loan? (2%) c) Does Recardo have basis under the Civil Code for claiming that the original contract was novated? (2%)

XV.a No, legal compensation takes place only between parties who are both debtors and creditors to each others which involves obligations that are both demandable. Rental payment and loan, although both money obligations, are not however, both demandable at once. Lease contract involves rental which payment is demandable from period to period, loan on the other hand shall become demandable only upon maturity. Thus, one of the requirements of legal compensation in this case has not been met. XV.b Yes, Recardo is a co-signatory of the PN who solidarily binds himself with Eduardo. Nothing is irregular therefore if the bank will foreclose his property which was mortgaged with his prior consent.

XV.c No, novation may take place only if there is change on persons of the original parties or change in the nature or characteristic of an obligation. The nature of the obligation has not been changed when the bank stopped paying the rental and applied the same to the unpaid loan. The application of payment of rental will not operate as an appointment of new debtors in favor of the old debtors. Said act is just but a consequence of an interlocking relation between the bank and one of the solidary debtors, Eduardo. It can hardly be considered as one that will operate as a valid novation. Further, the withholding of rental payment and its

subsequent application as payment of the loan is not a voluntary act of Eduardo which could have the effect of novation by which could have been relieved Recardo of his solidary liability. His contention that no demand was made to him by the bank is without basis because the demand to one of the solidary debtors is a demand to all.

i dont think you can say certainly by the facts that the rentals were not due. at the very least, the ones unpaid and setoff may be considered demandable already. in fact why would the problem say she stopped paying rentals hindi ba ibig sabihin nun kelangan na bayaran or hinihingi na sya? just my appreciation of the facts, with all due respect. its just that this problem i think really just wants to test if you know the requisites of compensation.

Thats right but remember also that lease contract is based on stipulated period wherein future rental payment may come into play so long as the period had not yet expired. Unlike in loan, upon maturity , the whole amount shall become demandable. That situation in my view may not somehow call for the application of legal compensation in that both obligations must be absolutely demandable, meaning there can be no other future obligations involved as embodied in a particualr contract (contract of lease, in this case)

i agree but remember also that the whole amount need not be due and demandable. there can be partial compensation as well. to say that the whole of the obligation be absolutely demandable to allow compensation is without legal basis (see article 1281 civil code). furthermore, when he did not pay and claimed compensation there is no indication that it refers to future rentals not yet due. it cannot be said logically that he stopped paying if those he did not pay were not yet due. if they were not yet demandable then it could not be said that he was no longer paying. just my two cents worth.

That is true also, but it is just a matter of relative point of view which came into my own periphery in that; the main obligation is covered by a contract in itself; the payment of rental is just but a consequence of such a main contract. There could have been a partial compensation; however, this partial characteristic may not force the other party to concede with the other. In my humble contemplation, this situation may run counter to the principle of compensation that it should take place by operation of law without any consent required from either of the parties. Anyway, we have to somehow admit that force of advocacy is somehow is as unlimited as the universe, hope our answers both will be given due credits by the examiners. Thanks mcddy08 for such a very productive interaction, I know readers may have also their own perspective regarding this issue. They are free of course to lay down their own dimension, what the most important, we respect each others view, more power to us.

thanks also. i think our answers will be given credit so long as we can argue them logically, applying with the laws or cases we have cited. lets just hope and pray the examiners wont be

too harsh should be have some slip-ups. god bless.

A. yes. they are both creditor and debtor of each other. B. No. since legal compensation was chosen by the Bank. Foreclosure muna dapat bago nag claim for any balance. C. None.

XVI. Dux leased his house to Iris for a period of 2 years, at the rate of P25,000.00 monthly, payable annually in advance. The contract stipulated that it may be renewed for another 2year period upon mutual agreement of the parties. The contract also granted Iris the right of first refusal to purchase the property at any time during the lease, if Dux decides to sell the property at the same price that the property is offered for sale to a third party. Twentythree months after execution of the lease contract, Dux sold the house to his mother for P2 million. Iris claimed that the sale was a breach of her right of first refusal. Dux said there was no breach because the property was sold to his mother who is not a third party. Iris filed an action to rescind the sale and to compel Dux to sell the property to her at the same price. Alternatively, she asked the court to extend the lease for another 2 years on the same terms. a) Can Iris seek rescission of the sale of the property to Duxs mother? (3%) b) Will the alternative prayer for extension of the lease prosper? (2%) XVI.a No, the right of first refusal is applicable only if the lease property is sold to a stranger, hence, Iris cannot demand rescission of the contract of sale because Dux sold the subject property to his mother, who cannot be considered as a stranger XV.b No, the lease contract being payable annually in advance, the maximum period therefore Irish can ask for extension is one year. This is the period by which Irish shall be given a period to consume her advance payment. The buyer of the lease property is bound to respect any preexisting contract entered into by the prior owner. But this may however admit an alternative answer: No, since Dux sold the subject property prior to the expiration of the contract, Irish has no right to demand extension of lease because her right of first refusal has not been violated. Dux however has the obligation to return her advance payment, if any.

a) Can Iris seek rescission of the sale of the property to Duxs mother? (3%) b) Will the alternative prayer for extension of the lease prosper? (2%)

A. yes. Iris' right first refusal was abridged. B. No. it's a whole different thing. the renewal should be by mutual agreement.

XVII. Felipe borrowed $100 from Gustavo in 1998, when the Phil P - US$ exchange rate was P56 US$1. On March 1, 2008, Felipe tendered to Gustavo a cashiers check in the amount of P4,135 in payment of his US$ 100 debt, based on the Phil P US$ exchange rate at that time. Gustavo accepted the check, but forgot to deposit it until Sept. 12, 2008. His bank refused to accept the check because it had become stale. Gustavo now wants Felipe to pay him in cash the amount of P5,600. Claiming that the previous payment was not in legal tender, and that there has been extraordinary deflation since 1998, and therefore, Felipe should pay him the value of the debt at the time it was incurred. Felipe refused to pay him again, claiming that Gustavo is estopped from raising the issue of legal tender, having accepted the check in March, and that it was Gustavos negligence in not depositing the check immediately that caused the check to become stale. a) Can Gustavo now raise the issue that the cashiers check is not legal tender? (2%) b) Can Felipe validly refuse to pay Gustavo again? (2%) c) Can Felipe compel Gustavo to receive US$100 instead? (1%)

My Answers: 1) No, Gustavo cannot raise such issue anymore. He is estopped in that he accepted a previous Cashier's Check as payment without any complaints. He should have raised it once such was offered to him b) No, Felipe cannot validly refuse. He still owes Gustavo the US$100. He is not paid yet. A mere payment by check does not redound to fully paying an obligation as "actual payment" has not yet been realized by actual transfer of funds/money c) Yes, Felipe can compel Gustavo to receive US$100 as payment. No difference between a US$100 bill then and now in value vis-a-vis

Can Gustavo now raise the issue that the cashiers check is not legal tender? (2%) b) Can Felipe validly refuse to pay Gustavo again? (2%) c) Can Felipe compel Gustavo to receive US$100 instead? (1%) ++++++ A. No. he is in estoppel B. No. He still owes Gustavo 100 dollars C. yes. Felipe borrowed 100 dollars.

XVIII. AB Corp. entered into a contract with XY Corp. whereby the former agreed to construct the research and laboratory facilities of the latter. Under the terms of the contract, AB Corp. agreed to complete the facility in 18 months, at the total contract price of P10 million. XY Corp. paid 50% of the total contract price, the balance to be paid upon completion of the work. The work started immediately, but AB Corp. later experienced work slippage because of labor unrest in his company. AB Corp.s employees claimed that they are not being paid on time; hence, the work slowdown. As of the 17th month, work was only 45% completed. AB Corp. asked for extension of time, claiming that its labor problems is a case of fortuitous event, but this was denied by XY Corp. When it became certain that the construction could not be finished on time, XY Corp. sent written notice canceling the contract, and requiring AB Corp. to immediately vacate the premises. a) Can the labor unrest be considered a fortuitous event? (1%) b) Can XY Corp. unilaterally and immediately cancel the contract? (2%) c) Must AB Corp. return the 50% downpayment? (2%)

XVIII.a No, fortuitous event refers to unforeseen event or such event which although foreseen, the occurrence of which is inevitable. Primarily, it refers to act of God but may also consider those man made events which cannot be counter-controlled by any force of human intervention. Labor unrest cannot be considered as unforeseen event, or foreseen event but the happening is inevitable or cannot be prevented. The fact of such organizational problem may have been attributed to such area the management of AB Corporation may have been overlooked. These factors could have been prevented though proper management of human resources. Based on this premise therefore, it cannot be considered as a foreseen event which occurrence is inevitable, thus, not a fortuitous event. XVIII.b

Yes, under a valid sub contract agreement where construction company is not a mere conduit of another contracting party, XY corporation has the right to immediately cancel the contract on failure of AB Corporation to comply its obligation due to its own internal problem. It cannot make an excuse that labor unrest is beyond its control because by entering into said contract, it warrants completion of the project within the specified period. Attached with this warranty is the duty to employ such preventive measures to ensure completion of the project. The cancellation of contract however is without prejudice to the rights of unpaid workers to run against the owner of the building. But this will apply only if substantial works have been accomplished which do not commensurate to the payment made by the owner of the building. A situation which does not apply in this case because substantial down payment was paid by XY Corporation against the percentage of completion done by AB Corporation. XVIII.c Not necessarily the whole 50% downpayment as it can be inferred from facts that prior to such labor unrest, AB Corporation had somehow partially performed such works on which it may have also incurred some sort of operational costs. In the absence of any express agreement between the parties, one of the basic rules of civility shall apply; that no one should enrich himself at the expense of the others. The parties may agree on such equitable return of down payment based on reasonable amount.

A. No. Labor unrest is not fortuitous event. B. No. they have contract. 18 months. it was just 17th month. it is premature. C. No. the downpayment covered for the expenses.

XIX. Juliet offered to sell her house and lot, together with all the furniture and appliances therein, to Dehlma. Before agreeing to purchase the property, Dehlma went to the Register of Deeds to verify Juliets title. She discovered that while the property was registered in Juliets name under the Land Registration Act, as amended by the Property Registration Decree, it was mortgaged to Elaine to secure a debt of P80,000. Wanting to buy the property, Dehlma told Juliet to redeem the property from Elaine, and gave her an advance payment to be used for purposes of releasing the mortgage on the property. When the mortgage was released, Juliet executed a Deed of Absolute Sale over the property which was duly registered with the Registry of Deeds, and a new TCT was issued in Dehlmas name. Dehlma immediately took possession over the house and lot and the movables therein. Thereafter, Dehlma went to the Assessors Office to get a new tax declaration under her name. She was surprised to find out that the property was already declared for tax purposes in the name of XYZ Bank which had foreclosed the mortgage on the property before it was sold to her. XYZ Bank was also the purchaser in the foreclosure sale of the property. At that time, the property was still unregistered but XYZ Bank registered the Sheriffs Deed of Conveyance in the day book of the Register of Deeds under Act. 3344 and obtained a tax declaration in its name. a) Was Dehlma a purchaser in good faith? (2%)

b) Who as between Dehlma and XYZ Bank has a better right to the house and lot? (2%) c) Who owns the movables inside the house? (2%)

XIX.a Yes, the principle behind the indefeasibility of title does not require a person, except of a bank, to go beyond the face of the title in order to establish its validity. Reliance to its face is enough to promote convenience in transferring ownership from one hand to another. Any person deprives of his rights under this system is protected by the assurance fund. In the absence of knowledge that the property was actually foreclosed by XYZ bank which may constitute malice or bad faith on the part of Dehlma, she can be considered as a purchaser in good faith. Her findings of existing lien in favor of Elaine and her instruction to redeem said property are too nil to constitute bad faith or malice. To establish validity of title, the law does not require a person to further examine the day book maintained at the Register of Deeds. Personnel in charge in said office has the ministerial duty to immediately annotate such entry on the face of the title. Omission to transfer this information will not result negligence on the part of Dehlma. Her non discovery of such entry is due to circumstances other that her own act or omission. Further, perfection of a valid lien against property subject of foreclosure is deemed complete upon registration of the deed of conveyance and the subsequent annotation therein, and not upon confirmation of sale issued by the Sheriff.

XIX.b Dehlma, who in good faith, was able to register the property in her name, has the better right against XYZ bank. XIX.c By virtue of deed of sale entered into by Dehlma and Juliet, Dehlma owns as well the movables inside the house.

A. Yes. B. Dehlma. c. Dehlma.