So how is judicial admission made?

A judicial admission is made in the pleading

filed by the parties, or in open court, or in
any proceedings outside of court but related
to a pending or anticipated suit. Im
particularly referring to admissions made in
depositions,
written
interrogatories
or
request for admission.
While admissions made in these proceedings
may not be actually made in court room, but
these proceedings are parts of the court
proceedings. So any admission made is still
considered judicial admission.
However, while as a general rule a judicial
admission may not be offered, because it
takes the place of evidence, admissions
made in depositions need to be formally
offered. This is a kind of judicial admission
where a formal offer is required pursuant to
sections 4, 6, and 8 of rule 23. Under section
6 it says there that a deposition may be
objected to by the adverse party as if the
deposition constitutes a testimony of a
witness in an open court. In other words, a
deposition may be objected to on the same
ground as when you object to a testimony of
a witness given in open court.
Since the adverse party against whom the
deposition is offered is given the right
pursuant to due process, the right to object,
it follows logically that depositions should be
formally offered. Otherwise, the adverse
party could not possibly object to something
which is not offered. So by the very nature, a
deposition needs to be formally offered so
that the adverse party to whom it is offered
is given the opportunity to object, as if it is a
testimony given in an open court. Any other
admission, no offer is required.
A Judicial admission is binding and conclusive
upon the admitter, so that the admitter
during the trial is not permitted to introduce
evidence which is inconsistent with or
contrary to the admission made earlier. This
is illustrated in the case of Elayda vs CA.
Elayda involves an action for collection of
sum of money filed by Elayda against the
defendant. In her complaint, Elayda alleges
that the defendant owe her 90,000.00 pesos.
In the answer, the defendants admitted to
have owed money from the plaintiff but

interpose the defense that they already paid

the obligation. Trial ensued and during the
evidence in chief for the plaintiff, elayda was
able to prove that indeed the defendants
owed her 90K. During the turn of the
defendant, the defendant also presented
evidence in chief and in the process they
were able to prove that they paid 90K and in
fact, they overpaid. Meaning they were able
to pay more than the 90K alleged in the
complaint. During the rebuttal, realizing the
devastating impact of the evidence of the
defendants showing that the defendants
even over paid, Elayda contrary to the
allegation in her complaint, tried to present a
document prepared by her accountant
showing that actually the money owed by
the defendant is not just 90K but 186K. so
that even if the defendant was able to prove
that it paid 120K, the defendant still owe her
this much. The question raised before the SC
was WON the evidence presented by Elayda
to show that the actual obligation is more
than the 90K alleged in the complaint is
admissible?
The SC ruled that objected or not, evidence
which is contrary to or inconsistent with the
admission made by Elayda in the complaint
is inadmissible. In fact, the court is duty
bound to ignore. In other words, the court is
not supposed to consider evidence contrary
to or inconsistent with an admission paid by
a party. So this illustrates the conclusive
nature of a judicial admission.
However, we may have problem on this
principle if we take into account section 5 of
rule 10, on the principle of amendment to
conform to evidence. Section 5 rule 10 says
that if an issue not otherwise raised in the
pleading is tried by the parties, without the
objection of the other party, the court may
admit the evidence and the pleading is
deemed amended to conform with the
evidence. Section 5 further states that even
it is objected, the court may in the interest of
justice, allow the amendment.
So it is clear that under rule 10 section 5,
that in case of conflict between the
admission made in the pleading and the
evidence presented in court, the court is
suppose to consider evidence. So by virtue of
this, evidence prevails over allegations in the
pleadings.

Judging Elayda in light of section 5 rule 10,

assuming if we are to decide the case under
this rule, the evidence of elayda tending to
prove that the amount of the obligation is
186K, would have been admissible. And the
pleading of elayda alleging only 90K is
deemed amended to conform with 186K.
Thats the problem. So there seems to be a
conflict between the elayda ruling where the
Supreme Court categorically ruled that
admission is conclusive and cannot be
controverted, but on the other hand rule 10
section 5 states that amendment to conform
with evidence may be allowed by the court,
especially if this is not objected to by the
other party.
But again in Elayda, the SC said that even if
objected or not, the court is not supposed to
consider it.
No exact answer as to which ruling is totally
correct. You just need to be aware that there
are two seemingly conflicting articles of the
law.
A judicial admission as a GR dispenses with
evidence. Exception is
1. Under rule 116 section 3 (criminal
procedure) = when an accused pleads
guilty to a capital offense, it is required
that the court should conduct a searching
inquiry to determine the voluntariness of
the plea of guilty and full comprehension
of his voluntary plea. And to require the
prosecution to prove the guilt of the
accused and the accused degree of
culpability. Furthermore it says that the
accused who already pleaded guilty may
produce evidence in his behalf.

acquitted if prosecution fails to prove the guilt of

the accused. This is a wholesome and noble
purpose. This only over emphasizes our policy in
our justice system which adopts the presumption
of innocence and it is the state that has the
burden to prove the guilt of the accused. By rule
116 section 3, the law simply does not want to
take any chances. It is always required that the
prosecution shall discharge the burden of proving
the guilt of the accused notwithstanding the
admission made by the accused that he is guilty
to the offense charged. But note that it is only
applicable to the capital offense.
So presumption of evidence is paramount and
takes precedence over any other policy.

On the other hand extrajudicial admission, the

rule is, for it to be considered by the court, it
should be offered. Otherwise the court has no
basis to consider it.

In the case of Torres vs. Ca. This involves a

dispute over a piece of land. Parties claim to be
co owners of the property. Plaintiff filed an action
for the ejectment against the defendant. The
defendant claims that she is one of the coowners. So she has the right to take possession of
the property and therefore the plaintiffs have no
right to reject her from the premises.

When an accused pleads guilty or not guilty to an

offense, it is an admission, a judicial attack. But
as an exception to the rule that judicial admission
dispenses with the presentation of evidence, this
is not the case if the offense is a capital offense.

The defendant filed for partition against the

plaintiff. These cases were tried together. In the
SC, the defendant in the ejectment case who was
the plaintiff in the partition case argued that he is
the co-owner of the properties because she is one
of the heirs of the legitimated child. In support of
her claim that she is a legitimated daughter and
therefore a co owner of the property, she, Torres,
pointed out to the court, the original complaint
filed by the plaintiff and the ejectment suit; where
the plaintiff admitted that plaintiffs and
defendants are co owners of the property. So Miss
Torres made use of the judicial admission that she
is indeed one of the co owners, and therefore she
cannot be ejected and therefore she has the right
to remind for partition.

Because of this requirement it is not unlikely that

even if the accused pleads guilty to a capital
offense, there is still likelihood that the accused is

It turned out however that the complaint where

the admission was made was subsequently
amended. In the amended complaint, the

plaintiffs now corrected themselves and alleged

that the defendant has no rights whatsoever. In
other words, the plaintiff denied that defendant is
an heir or co-owner of the property. The question
there was WON the admission made in the
original complaint is admissible the SC said NO
because when a pleading is superseded by an
amended pleading, the superseded pleading is
deemed abandoned and legally it is deemed to
be non existent. What governs now is the
amended pleading. But under rule 10 section 8,
any admission made in a superseded pleading,
may be used as evidence against the admitter.
But it must be formally offered because it now
becomes extrajudicial admission. Because when
it is deemed abandoned, it is technically stricken
off the records of the case and therefore as if that
admission was made outside the court
proceeding in the same case.
While as a GR and ex judicial admission, if
formally offered, may be admitted as evidence,
there is an exception: Under rule 26 section 3: An
admission made in answer to a request for
admission may only be used in the same case
where the request for admission is made. It may
not be used for any other proceeding and for any
other purpose. So an admission made in the
course of a proceeding of a case, pursuant to a
request for admission under rule 26, cannot be
used as an extrajudicial admission in so far as
other cases are concerned. Even if you formally
offered that admission in the first case. Because
of the express prohibition under section 3, it is
only limited for that case and for that case alone.
Under section 4 of rule 129, there are two
exceptions to the conclusive character of a
judicial admission. In these two instances, the
admitter may controvert the judicial admission
made.
1. If the admission was Made THROUGH
palpable mistake for this to apply, the
admitter should prove to the court that
the mistake is not only an ordinary
mistake but a palpable mistake
2. WHEN It can be proved that no admission
was actually made
a. This includes a situation where
There was actually an admission
made but the admission was taken
out of context. When the admission
is taken out of context, It is as if
there was no confession made

This is illustrated in the case of Atillo. Atillo is the

majority SH of Amancor Corporation. To finance
its business, Amancor through Atillo obtained a
load from metro bank. But before the loan could
be paid, atillo entered into a contract with
Lhuiller, where Lhuiller purchased some shares of
stock from Amancaor. Thereby making lhuiller
along with atillo as a majority SH of Amancor.
TO further suppose and finances of the business
of the corporation, Atillo and lhuiller further
entered into an MOA where Lhuller put in more
fresh capital into the corporation. And along with
this MOA they also entered into a supplementary
MOA where it is stipulated among others that
atillo would assume the obligation of Amancor
which it owed to the bank. But this amount that
atillo would advance will be set off against atillos
obligation to amancor as it turned out that atillo
has a pending obligation to the corporation. It
turned out that the obligation of atillo is smaller
than the amount that atillo assumed. SO net
effect is that atillo has a pending collectible
against the corporation. After the application of
compensation, when amancor failed to pay its
obligation to atillo, he filed a case against
amancor but also included lhuiller; Praying that
lhuiller should be solidarily liable with amancor.
In support of his theory that lhuiller undertook to
personally pay the obligation of amancor, atillo
made reference to the admission made by lhuiller
in his answer, particularly paragraph 3.11 where
lhuiller essentially alleged that in all his subject
dealings, it was between atillo and lhuiller. Taking
cue from this admission or allegation in the
answer, Atillo argued that this is a judicial
admission and so lhuiller can not anymore
contradict. But the SC saw it the other way. SC
said that while it is true that the answer of lhuiller
made an admission that lhuiller undertook to
personally assume the obligation, a holistic
reading of the answer, that that particular
admission of personally liability only refers to the
transaction between lhuiller and atillo concerning
the purchase of corporations shares of stocks.
But a scrutiny of the other provisions or
paragraphs of the answer would inevitably show
that in so far as the obligation of the loan that
amancor obtained to the bank, lhuiller did not
assume personally liability. In fact in his answer
he expressly denied personal liability. So the SC
said that while there is an admission of sort, this

admission as invoked by atillo was taken out of

context. It is not meant in the sense that the
admission was intended. It pertains to another
transaction and not the transaction in question.
SO In this instance, the supposed admitter was
allowed to controvert the judicial admission
because in truth and in fact there was no
admission at all.
3. Ruling in the case of Gardner in this
case, the parties entered into a joint
venture agreement. Gardners were the
owner of 2 pieces of land and in their
agreement; the santos will advance
certain funds to the garnders. But by way
of security to protect the interest of santos
who agreed to advance some funds, they
agreed that gardner would execute a deed
of sale over their properties in favor of
santos. However, unknown to gardnger,
santos behind garners back, negotiated
with a third party and sold the properties
to a third party. There were five successive
transfers. When the gardner learned of it
they filed in court for nullity of said
transaction. In the answer of Santos, he
alleged that the transactions were all
valid. And it was there agreement that if
the joint venture agreement failed to
materialize, the santos would reconvey
the properties to the gardners and the
latter will the santos for the amount that
the santos advanced. In other words, in
the answer of santos, he sustained the
validity and the propriety or legality of the
transaction
However during the trial, Gardner
presented Santos as their hostile witness.
In the course of the testimony of the
Santos, for reasons known only to him, he
now deviated from his allegation in his
answer. He expressly admitted to the
court that all the transactions are
fictitious.

One of the issues raised before the SC

was, which of the two prevails?
The
admission or allegation of Santos in the
answer which served as a judicial
admission and therefore cannot be
contradicted, or the testimony of Santos in

the open court? The other side would say

that the testimony given in open court
cannot overcome or contradict the effect
of judicial admission because judicial
admission is conclusive
But the SC rejected this argument. This is
one case where the SC considered the
testimony or evidence adduced in court
more credible than the admission made in
the pleading.
Why? The admission made by Santos in
his answer is consistent with his interest.
But the admission made in court is against
his interest. So the SC said that this
admission in court is more credible --human experience. When someone says
something against himself, he must be
telling the truth. This is peculiar and thus
added as an exception.
Mheallers question: would that mean sir that the
interpretation of rule 10 section 5 on the
amendment to the pleading, it should be adverse
to be entered?
Sir: Santos is clear that the nature of the
evidence presented in court consisting of the
testimony of Santos is adverse to the interest of
the client. But if you look at rule 10 it does not
qualify any. Section 5 rule 10 simply says that
there are instances where there is a variance
between pleading and evidence (because
allegations in the pleadings are not evidence,
these are just ultimate facts or positions that
need to be proved by evidence. Section 5
considers evidence superior than allegations.
Because if there should be a variance, it is the
allegation which should conform to the evidence
and not the other way around. But elayda and the
rule of judicial admission is the reverse. Any
contradictory evidence should not be considered
because it will defeat the very nature of judicial
admission which is conclusive. Thats the problem
there --- I cannot find any point of reconciliation.
So again, depending on which side you are on.
Just take note of these prevailing principles.
PRESUMPTION
The rule on presumption is another instance
where evidence is dispensed with but not all
together.

While in judicial admission and judicial notice,

totally no evidence is required.

would be a presumption based on another

presumption.

A presumption is an inference derived from an

established and proven fact. Without the
established fact, no presumption will arise.

There are two kinds of presumption

While there is no need for evidence in so far as to

prove the fact presumed, it is indispensible that
evidence should be presented to prove the fact
upon which the presumption may arise. Therefore
a presumption cannot be based on another
presumption.
How do you establish that basic fact? By
evidence. This is illustrated in the case of Angeles
vs. Maglaya. In this case, when someone died, he
left an estate which is now the subject of a court
litigation between the wife and the one who
claimed to be the legitimate daughter of the
deceased. When the case reached the SC, one of
the critical issues was WON, the one who claimed
to be the legitimate daughter was really the
legitimate daughter of the deceased. This issue
was denied by the wife.
How did the purported daughter pursue her case?
She said that there is a presumption in law that
one born during a marriage is legitimate. She said
that it is not her burden to prove that she is
legitimate thus it is the other partys burden to
prove that she is illegitimate because she enjoys
the presumption of legitimacy. Unfortunately this
lady misses the point by a mile.
SC said presumption should be based on an
established fact. The presumption that one born
during the existence of a valid marriage may
arise only if the fact of the valid marriage is duly
established. Without establishing this, there can
be no presumption of legitimacy. Now in this
case, she failed to prove that her mother was
validly married to the decease. So failing in
which, the presumption on legitimacy cannot
possibly be applied
So, again the rules is, a presumption is based on
an established fact and it cannot be based on
another presumption. Because there is also
another presumption that when a man and a
woman, deporting themselves as husband and
wives, there is a presumption that they are
legally married. You cannot use that as basis to
avail the presumption of legitimacy. For then, it

1. Conclusive cannot be overturn by

contrary evidence
a. Two
kinds
of
conclusive
presumption:
i. Estoppels in pais when a
person
by
his
act,
declaration
or
omission
intentionally led another to
believe a fact as truth and
because
of
that
representation, that other
person acted on that belief,
that person making the act,
declaration
or
representation cannot be
permitted on any litigation
that may arise out of the
act, declaration or omission
to
falsify;
(so
if
you
represent something, you
are not allowed to take it
back); you cannot say one
thing to support a claim and
to say another thing to
avoid liability
EXAMPLE: there is a piece of land, one of the
inherit obligation of a land owner is to pay taxes.
So the government assessed the property for
taxation purposes. But when the collector knocks
at your door, you refused to pay saying that you
are not the owner. Five years after, it turns out
that the government expropriated the property.
The law on eminent domain says that the owner
should be compensated. Now you come forward
and ask for the money. That is not allowed.
II. THE presumption that a tenant
cannot deny the better right of possession his or
her landlord so long as the landlord-tenant
relationship exists.
This is illustrated in the case of Data lift Movers
vs. Belgravia Realty Corporation and Sampaguita
brokerage. The subject matter of the case is a
piece of land was owned by the Philippine
National Railways. PNR entered into a lease
agreement with sampaguita brokerage, and in
turn sampaguita entered into a special
arrangement with her sister company, the

Belgravia. This was for Belgravia to construct a

warehouse. But instead of using the warehouse
for itself, Belgravia entered into a sublease
agreement with data lift movers. After years of
transaction, the rental kept on increasing to the
point that data lift mover complained that it
cannot anymore pay the rental. Belgravia and
Sampaguita now filed an action for ejectment
against data lift for non payment of the rentals.
One of the defences interposed by data lift was
that sampaguita and Belgravia has no legal
personality and therefore have no cause of action
to demand ejectment, they not being the owner
of the property. But the SC applied the conclusive
presumption that so long as the tenant-landlord
relationship exists; you are not allowed to deny
the title of the landlord or to deny that the
landlord has a better right of possession.
2. Disputable presumptions --- a presumption
which is sufficient to prove a fact unless
overcome by a contradictory evidence
a. Presumption of innocence
b. Presumption that an unlawful act is
done with unlawful intent --- for
example, X fondles the breast of a
friend.
Because
of
this
presumption, it is presumed that he
did it with unlawful intent. So that if
the real purpose of the defendant
is that he is merely joking, it is the
burden of the defendant to prove
it. If he cannot overcome this
presumption he may be convicted
of the offense
c. Presumption that everyone intends
the ordinary consequence of his
voluntary act if you did
something voluntarily, there is a
presumption that you intended the
natural and logical consequence to
happen. So if you shot somebody
at the chest, there is a presumption
that the logical consequence of
death is intended. If the intention
were different then it is the burden
of that person to prove otherwise.
d. Presumption that everyone takes
ordinary care of his concerns --related or consistent with the
instinct of self preservation; this is
illustrated in the case of BPI vs.
Spouses Reyes. In this case, Reyes
is the existing depositor of a bank.

Enticed by the advertisement given

by the bank of giving incentives to
new opened accounts, Jesusa
Reyes with her daughter went to
the bank to open a new atm
account. Her intention was to
deposit an initial amount of
200,000. The 100K to be taken
from her already existing account
and the other 100K was through
cash which she had in her
possession. The transaction was
facilitated. After the transaction,
she
was
so
surprised
and
devastated when she learned that
the balance in her atm account is
only 100K. So she complained and
demanded for the return of the
100K which she alleged to be
taken. The issue there was WON
the amount deposited was really
200K or 100K.
It was established during the trial
that the withdrawal slip prepared
by the bank officer and signed by
Jesusa, contained the amount of
200K. But this was subsequently
changed to 100K. The SC said that
it is critical to determine what
really the intention of Jesusa was
when she transacted with the bank
during the time that she opened a
new atm account. Jesusa claims
that her intention was to deposit
200K, half taken from her old
account and the other half in cash.
The SC said that it is established
that the deposit slip contained
200K, so if it really was the
intention of Jesusa to withdraw only
100K from her existing account,
then its spurious why the deposit
slip bears the figure of 200K
(although this was changed). But
the SC said, she signed it in the
first place. Before the error was
discovered, she signed it without
protest. Although Jesusa tried to
explain that she did not notice the
figure, she merely signed it without
examining the interest in the
deposit; the SC said there lies the
problem. It is not believable to

claim that she merely signed it

without reading especially so that
the portion of the signature is just
beside the portion where the
amount is written. Every person is
presumed to take care of ordinary
goods. Any person will not sign a
withdrawal slip, without looking at
the interest especially if the
interests are filled in by another
person. That may be true that
Jesusa did not notice it, but the law
on presumption works against her.
e. Presumption that Evidence wilfully
suppressed will be adverse if
produced for this presumption to
apply, the suppression must be
wilful. And when the law say it
must be lawful, the suppression
must not be in accordance with
ones exercise of a right.
This is illustrated in the case of
BlueCross vs. Olivares. Olivares
obtained a health care insurance
from BlueCross. When she was
eventually hospitalized and paid for
hospitalization bills, blue cross
refused to pay and reimburse her
with the bills she incurred on the
ground that the cause of the illness
could have an excepted event or
risk. The trouble in this is that
BlueCross merely stipulated. They
failed to prove that indeed the
cause of the illness is an excepted
peril. But blue cross inferred this
fact from the failure or refusal of
Olivares to allow the disclosure of
her medical records. BlueCross,
taking cue from this presumption
argues that the medical records
would have shown that the cause
of illness is an excepted risk. For
why should she refuse to disclose
it?
But the SC saw it the other way. SC
said that when Olivares instructed
her physician not to disclose her
medical record, she was merely
exercising her right which is
guaranteed by law --- confidential

communication between a patient

and a doctor.
In the same manner that if accused
refuses to testify in his behalf, his
silence should not be taken against
him. Because by taking silence, he
only exercises his constitutional
right.
This presumption does not also
apply if the evidence supposedly
suppressed is at the disposal of
both parties. So if the other party
has equal opportunity to present
that
supposedly
suppressed
evidence that party cannot avail of
such presumption. Because all he
had to do was to present the
evidence by himself.
f.

Presumption that one in possession

of a stolen item is assumed to be
the taker and at the same time the
doer of the whole thing.
If one is caught, in possession of a
stolen item in the course a robbery
and due to that the officer died, the
One in found in possession of the
stolen item is presumed to be the
robber and at the same time killer
(doer of the whole thing).

Note: understand this presumption in light

of
the
next
equally
disputable
presumption
g. One in possession of a movable
property in good faith is presumed
to be the owner and therefore his
possession should be respected.
And a party who claims ownership
is not justified in divesting the
possessor of the property. The
remedy of the claimant should be
to go to court.
Which one prevails: the presumption that
one is possession is the thief or the
presumption that the one in the
possession of a movable property is the
owner?

A logical question from this issue is, is it

legal for someone to divest the possessor
of the property on the ground that this
property is a stolen item?

up. Otherwise, you will be encountering

another problem. Victims rather let go of
the property than face a criminal case for
car napping or anti fencing.

Like when you are driving a vehicle that

you purchased from second hand car
dealers. The police man pulled you over
and tells you that this is a hot car. Is it
legal for a policeman to cease the vehicle
from you? The possessor bought the
vehicle in good faith and for value or
consideration from the dealer, complete
with all the documents and paper.

How does the right to remain silent impact

on the presumption that one in possession
of a stolen item is presumed to be thief?
Obviously there is a conflict now. The
presumption that you are the thief runs
counter to the presumption of innocence
and your right to remain silent.

The practice is the police will seize it,

otherwise if you refuse, you will find
yourself charged with car napping.
But I have reservation in this practice. In
the case of Gomez vs. Edu, a buyer of a
second hand vehicle was flagged down by
government agent. The vehicle was seized
from her on the ground that it was a hot
car, stolen from a military officer. The
buyer, possessor of the allegedly stolen
vehicle, went to court and filed an action
for
replevin
(recovery
of
personal
property).
SC said, the buyer form whom the vehicle
was seized by the police was presumed to
be the owner. And therefore her
possession should have been respected. In
fact the SC went on to say that the filing of
a criminal case in court arising from the
illegal taking of the property does not
warrant the seizure of the vehicle from the
present possessor. In fact, she is not
required to go to court to file an action for
replevin because the presumption is her
favor. It is the burden of the party claiming
for the property to go to court and not the
other way around.

If you do not offer any plausible

explanation, will the presumption that you
are the thief or doer of the whole thing
apply? What if you say nothing at all
because you want to exercise your right to
remain silent, what is the effect?
The answer is, the presumption that you
are the thief prevails. Why? If you are the
possessor of a stolen item or a product of
a wrong doing, and you are informed that
the property is stolen from the true owner,
you cannot just simply take your silence. If
indeed you obtained the property in good
faith and by legal means, all you have to
do is offer your explanation. If you can
prove that you bought it legally, in good
faith and for valuable consideration, your
ownership may be protected.
There are rules in the civil code that
protect the rights of innocent buyers. Like
if you buy something in a MERCHANT
STORE. Even if the property is proven to
be stolen, if you bought it from a merchant
store, your right is protected. The true
owner cannot recover the property;
neither can the buyer be compelled to pay
the purchase price. The remedy of the true
owner is to go after the person who is
responsible for the illegal taking.

SO any party who claims interest contrary

to the present possessor should go to
court. That party cannot forcibly take that
property from the present possessor
because the presumption is the possessor
is the owner.

Otherwise, if buyers from merchant stores

are not protected, this would be disastrous to
commerce. No one would be comfortable and
safe enough to buy and deal and enter into
commercial transactions if buyers are not
protected.

But this is not what the police are doing.

You may have the law in your favour but
most of the time victims will just give it

Take note also that under the theory of

irevindicability, the true owner may recover the
property. If you are a buyer of a property illegally

taken from the owner and you bought it in an

auction sale, it if is unlawfully taken, you may be
compelled to surrender the property but you will
be paid the acquisition cost.
PRESUMPTION INVOLVING DEATH
There are three presumptions involving death
1. Presumption of death
Rule 131 section 3, paragraph w --- there is a
presumption that one who is missing for a period
of 7 years and whose existence, whether he is
alive or not, cannot be determined or is unknown,
there is a presumption that the person is already
dead FOR ANY PURPOSES OTHER THAN
SUCCESSION.
So 7 years missing, he can be considered death,
but settlement of the estate cannot be done. For
purposes of succession you have to wait for 10
years.
However, if the missing person disappeared when
he was already MORE THAN 75, the only
requirement is 5 years for all purposes, whether
succession or any other purpose.
The requirement of 7 years or 10 years and 5
years apply only under ordinary circumstances,
where simply, a person went missing.
But
if
circumstances
surrounding
the
disappearance of a person involves danger of
death (like when a (1) person on board a vessel
disappeared and the vessel is lost or (2) when a
person on board aircraft disappeared because the
aircraft cannot be found, or a (3) member of the
armed forces was involved in military operations
and hostilities disappeared, or a (4) person
disappears under any circumstance involving
danger), the rule is disappearance for 4 years is
enough for purposes including succession.
Except, for purposes of remarriage.
For purposes of remarriage, if there is danger of
death, the only requirement is 2 YEARS.
Take note however, that the presumption of death
applies only when there is no preponderance of
evidence that the person actually died. Take note
that to prove death, it is not always required that
the dead body of the person should be
discovered. Death may be established even

beyond reasonable doubt, even in the absence of

the dead body. It is a case to case basis.
If there is preponderance of evidence that the
person under the circumstances really died, you
dont apply the presumption thus you dont have
to wait for the period prescribed for by law. That
person should be considered as dead on that very
occasion that the incident took place.
Take note of the cases Eastern shipping lines vs.
Lucero and Victoria Shipping lines vs. workmens
compensation commission.
The SC said in this cases, you dont wait for the
period, you consider the person missing dead as
of the time the incident, giving rise to the death,
took place.
The preponderance of evidence in Lucero
consisted the three radio messages sent by
Lucero to the employer describing the nature and
the extent of the disaster. The SC was convinced
that there is preponderance of evidence that
Lucero sank with the vessel.
Similarly in the case of Victoria, the crew of the
vessel jumped off the vessel when the vessel
caught fire of unknown origin. Since then the
crew had not been heard of. The father now went
to the employer to collect the death benefits. But
the employer refused arguing that the father has
to wait for the period required before the missing
crew can be declared dead.
The SC disagreed, saying that under the
circumstances and evidence on record, there is
preponderance of evidence that the crew died
when he jumped off the vessel and never showed
up again.
2. Presumption of survivorship (paragraph jj)
There are instances where it is important to
determine who as between two or more persons
died first. There may be some questions where
the exact point of death is relevant.
The rule provides when two person perish in the
same calamity such as wreck, battle, and it
cannot be shown as to whom between them
perished first, the survivorship should be
determined by the probability, arising from the
strength and age of the sexes, subject to the
following rules:

a. If both are below 15, the older is

presumed to have survived. This rule
presupposes that the two died. The older
is presumed to have died later, the
younger died earlier
b. If both are above 60, the younger is
presumed to have survived, the older died
ahead
c. If one is more than 15 and the other is
above 60, the younger is presumed to
have survived, the older died ahead
d. If both are of the ages between 15 and 60,
(16 up to 59) and of different sex, the
male is presumed to have survived, the
female died ahead. But if the same sex,
the older is presumed to have survived.
e. If one is below 15 or above 60 and the
other is between the ages of 15 and 60,
the one between is presumed to have
survived.
Take note that this rule on survivorship
applies only for purposes other than
SUCCESSION. If the issue is succession, forget
about the rule on probability of survivorship
arising from strength, age or sex.
The rule that governs for purposes of
succession is the rule on presumption of
simultaneity of death (paragraph kk)
3. Presumption of simultaneity of death
For purposes of succession, when two or more
person who are called to succeed each other
died, the one who alleges the death of one prior
to the other, has the burden of proof. So the party
who alleges that one died ahead of the other has
the burden. Otherwise, they should be presumed
to have died simultaneously (together), and
therefore, as between them, there can be no
succession of rights.
Illustration: Suppose Tibon and Corollo are
married. Tibon for his undying love obtained a
multimillion life insurance policy naming corolla
as his sole beneficiary. They have no child. But
Tibon has a child by Yen. Corollo has a mother
who is still alive.
Suppose during their honeymoon, the aircraft
which they boarded exploded in midair. No

circumstances for which it can be inferred of

whom, between them, died first.
Question now: what happens to the life insurance
policy obtained by Mr. Tibon over his life naming
Corollo as the beneficiary?
The rule in insurance is: for the beneficiary to be
entitled to the proceeds of the life insurance
policy taken by the insured, the beneficiary
should survive the insured. Because if the
beneficiary dies ahead of the insured, the
insurance is voided. Thats the General rule in
insurance.
So first question: do you apply the presumption
on survivorship, or do you apply the presumption
on simultaneity of death?
Because if you apply simultaneous death, it
would appear that corolla cannot get anything
because it is presumed that they have died
together. In this case, there is no transmission of
rights.
But is this case a question of succession as to
apply kk. This is not! This is a question on
insurance. And the rule in insurance says that if
the beneficiary dies ahead of the insured, the
insurance is voided and the beneficiary gets
nothing. So you apply the rule on survivorship.
So what does the rule in jj say? Lets say that
Tibon is 61 and Corollo is 40. The rule says that if
one is between the ages of 15 and 60 and one is
above 60, the younger is presumed to have
survived and the older is presumed to have died
ahead. In this case corolla can get the insurance
because tibon died ahead.
But since corolla also died, who gets the proceeds
of the insurance? The mother of corolla.
This time the rights of the mother of corolla to the
insurance proceeds arise from succession. But
from the insurance contract to corolla, its not
succession; rather it is a contract of insurance.
Suppose Tibon and Corollo have a joint bank
account of 1M and the aircraft exploded in mid
air. The presumption is they died simultaneously.
So what happens to the bank deposit by 1M?
This is now governed by the rule on succession.
The rule on succession says that the property, if
joint and conjugal, 50-50 belongs to the spouses.
And because they are already dead, there

corresponding shares should be inherited by their

respective heirs. So the 500K goes to the
illegitimate son of tibon, and the other 500K goes
to the mother of corolla.
OTHER QUESTIONS:
Joy: is pawnshop considered a merchant store
also?
Sir: youre referring to buying a property which is
already consolidated to the pawnshop. In this
case since the pawnshop is the owner, this is now
a merchant store. Unless there are other special
laws that govern them.
Rj: regarding the presumption that if you do an
unlawful act, you are presumed to have done it
with unlawful intent, is this not contrary to the
presumption of innocence?
Sir: thats why! Its a given that there are really
presumptions that contradict each other. When
this two presumption collide, always go for
innocence. You always favor the accused.
Do you remember this rule on malversation?
There is a rule on presumption, when there is
failure to account, it is malversation. This has
been challenged to run counter to the
presumption of innocence. The prevailing
doctrine is that it is a valid presumption because
it is just easy for you to account. It is the failure
to account that raises the presumption of
malversation or misappropriation. So if you did
not malverse anything, you just account.
Its just like the presumption of the thief, you just
have to offer, just offer an explanation of how you
got the property.
Presumption on regularity of official functions
likewise runs counter to the presumption of
innocence. In a search, the police will invoke
regularity in the performance of official function,
and the accused will invoke the presumption of
innocence. IN case of doubt it should be resolved
in favour of the accused.