Abalos vs. Macatangay, JR

7/26/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 439
VOL. 439, SEPTEMBER 30, 2004 649

Abalos vs. Macatangay, Jr.
*
G.R. No. 155043. September 30, 2004.
ARTURO R. ABALOS, petitioner, vs. DR. GALICANO S.

MACATANGAY, JR., respondent.
Civil Law; Contracts; Elements; Contracts, in general, require the

presence of three essential elements: (1) consent of the contracting parties;
(2) object certain which is the subject matter of the contract; and (3) cause
of the obligation which is established.—Contracts, in general, require the
presence of three essential elements: (1) consent of the contracting parties;
(2) object certain which is the subject matter of the contract; and (3) cause
of the obligation which is established.
Same; Same; In a contract of sale, the seller must consent to transfer
ownership in exchange for the price, the subject matter must be determinate,
and the price must be certain in money or its equivalent.—Until the contract
is perfected, it cannot, as an independent source of obligation, serve as a
binding juridical relation. In a contract of sale, the seller must consent to
transfer ownership in exchange for the price, the subject matter must be
determinate, and the price must be certain in money or its equivalent. Being
essentially consensual, a contract of sale is perfected at the moment there is
a meeting of the minds upon the thing which is the object of the
_______________
* SECOND DIVISION.
650
650 SUPREME COURT REPORTS ANNOTATED
contract and upon the price. However, ownership of the thing sold shall not
be transferred to the vendee until actual or constructive delivery of the
property.
www.central.com.ph/sfsreader/session/0000016c2e5600cff953c774003600fb002c009e/t/?o=False 1/16
Same; Same; An accepted unilateral promise which specifies the thing

to be sold and the price to be paid, when coupled with a valuable
consideration distinct and separate from the price, is what may properly be
termed a perfected contract of option.—An accepted unilateral promise
which specifies the thing to be sold and the price to be paid, when coupled
with a valuable consideration distinct and separate from the price, is what
may properly be termed a perfected contract of option. An option merely
grants a privilege to buy or sell within an agreed time and at a determined
price. It is separate and distinct from that which the parties may enter into
upon the consummation of the option. A perfected contract of option does
not result in the perfection or consummation of the sale; only when the
option is exercised may a sale be perfected. The option must, however, be
supported by a consideration distinct from the price.
Same; Same; As a rule, the holder of the option, after accepting the
promise and before he exercises his option, is not bound to buy.—As a rule,
the holder of the option, after accepting the promise and before he exercises
his option, is not bound to buy. He is free either to buy or not to buy later. In
Sanchez v. Rigos we ruled that in an accepted unilateral promise to sell, the
promissor is not bound by his promise and may, accordingly, withdraw it,
since there may be no valid contract without a cause or consideration.
Pending notice of its withdrawal, his accepted promise partakes of the
nature of an offer to sell which, if acceded or consented to, results in a
perfected contract of sale.
Same; Same; Under the law, a void contract cannot be ratified and the
action or defense for the declaration of the inexistence of a contract does
not prescribe.—The nullity of the RMOA as a contract of sale emanates not
only from lack of Esther’s consent thereto but also from want of
consideration and absence of respondent’s signature thereon. Such nullity
cannot be obliterated by Esther’s subsequent confirmation of the putative
transaction as expressed in the Contract to Sell. Under the law, a void
contract cannot be ratified and the action or defense for the declaration of
the inexistence of a contract does not prescribe. A void contract produces no
effect either
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VOL. 439, SEPTEMBER 30, 2004 651
against or in favor of anyone–it cannot create, modify or extinguish the

juridical relation to which it refers.
Same; Conjugal Partnership; Under the Civil Code, the husband, as
the administrator of the conjugal partnership, cannot validly alienate or
encumber any real property of the conjugal partnership without the wife’s
consent, and vise versa.—Under the Civil Code, the husband is the
administrator of the conjugal partnership. This right is clearly granted to
him by law. More, the husband is the sole administrator. The wife is not
entitled as of right to joint administration.
Same; Same; The right of the husband or wife to one-half of the
conjugal assets does not vest until the dissolution and liquidation of the
conjugal partnership, or after dissolution of the marriage, when it is finally
determined that, after settlement of conjugal obligations, there are net
assets left which can be divided between the spouses or their respective
heirs.—It has been held that prior to the liquidation of the conjugal
partnership, the interest of each spouse in the conjugal assets is inchoate, a
mere expectancy, which constitutes neither a legal nor an equitable estate,
and does not ripen into title until it appears that there are assets in the
community as a result of the liquidation and settlement. The interest of each
spouse is limited to the net remainder or “remanente liquido” (haber
ganancial) resulting from the liquidation of the affairs of the partnership
after its dissolution. Thus, the right of the husband or wife to one-half of the
conjugal assets does not vest until the dissolution and liquidation of the
conjugal partnership, or after dissolution of the marriage, when it is finally
determined that, after settlement of conjugal obligations, there are net assets
left which can be divided between the spouses or their respective heirs.
Same; Same; The sale by the husband of property belonging to the
conjugal partnership without the consent of the wife when there is no
showing that the latter is incapacitated is void ab initio because it is in
contravention of the mandatory requirements of Article 166 of the Civil
Code.—We ruled that the sale by the husband of property belonging to the
conjugal partnership without the consent of the wife when there is no
showing that the latter is incapacitated is void ab initio because it is in
contravention of the mandatory requirements of Article 166 of the Civil
Code. Since Article 166 of the Civil Code requires the consent of the wife
before the husband may alienate or
652
encumber any real property of the conjugal partnership, it follows that acts
or transactions executed against this mandatory provision are void except
when the law itself authorizes their validity.
Same; Same; As an exception, the husband may dispose of conjugal
property without the wife’s consent if such sale is necessary to answer for
conjugal liabilities mentioned in Articles 161 and 162 of the Civil Code.—
As an exception, the husband may dispose of conjugal property without the
wife’s consent if such sale is necessary to answer for conjugal liabilities
mentioned in Articles 161 and 162 of the Civil Code. In Tinitigan v.

Tinitigan, Sr., the Court ruled that the husband may sell property belonging
to the conjugal partnership even without the consent of the wife if the sale is
necessary to answer for a big conjugal liability which might endanger the
family’s economic standing. This is one instance where the wife’s consent is
not required and, impliedly, no judicial intervention is necessary.
Same; Family Code; The Family Code now requires the written
consent of the other spouse, or authority of the court for the disposition or
encumbrance of conjugal partnership property without which, the
disposition or encumbrance shall be void.—The Family Code has
introduced some changes particularly on the aspect of the administration of
the conjugal partnership. The new law provides that the administration of
the conjugal partnership is now a joint undertaking of the husband and the
wife. In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal partnership, the other
spouse may assume sole powers of administration. However, the power of
administration does not include the power to dispose or encumber property
belonging to the conjugal partnership. In all instances, the present law
specifically requires the written consent of the other spouse, or authority of
the court for the disposition or encumbrance of conjugal partnership
property without which, the disposition or encumbrance shall be void.
PETITION for review on certiorari of a decision of the Court of

Appeals.
The facts are stated in the opinion of the Court.

Tarriela, Tagao, Ona & Associates for petitioner.
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VOL. 439, SEPTEMBER 30, 2004 653

Rodolfo A. Espiritu for respondent.
TINGA, J.:
The instant petition seeks a reversal of the Decision of the Court of

Appeals in CA-G.R. CV No. 48355 entitled “Dr. Galicano S.
Macatangay, Jr. v. Arturo R. Abalos and Esther Palisoc-Abalos,”
promulgated on March 14, 2002. The appellate court reversed the
trial court’s decision which dismissed the action for specific
performance filed by respondent, and ordered petitioner and his wife
to execute in favor of herein respondent a deed of sale over the
subject property.
Spouses Arturo and Esther Abalos are the registered owners of a
parcel of land with improvements located at Azucena St., Makati
City consisting of about three hundred twenty-seven (327) square
meters, covered by Transfer Certificate of Title (TCT) No. 145316

of the Registry of Deeds of Makati.
Armed with a Special Power of Attorney dated June 2, 1988,
purportedly issued by his wife, Arturo executed a Receipt and
Memorandum of Agreement (RMOA) dated October 17, 1989, in
favor of respondent, binding himself to sell to respondent the subject
property and not to offer the same to any other party within thirty
(30) days from date. Arturo acknowledged receipt of a check from
respondent in the amount of Five Thousand Pesos (P5,000.00),
representing earnest money for the subject property, the amount of
which would be deducted from the purchase price of One Million
Three Hundred Three Hundred Thousand Pesos (P1,300,000.00).
Further, the RMOA stated that full payment would be effected as
soon as possession of the property shall have been turned over to
respondent.
Subsequently, Arturo’s wife, Esther, executed a Special Power of
Attorney dated October 25, 1989, appointing her sister, Bernadette
Ramos, to act for and in her behalf relative to the transfer of the
property to respondent. Ostensibly, a marital squabble was brewing
between Arturo and Esther at the time and to protect his interest,
respondent caused the
654

annotation of his adverse claim on the title of the spouses to the

property on November 14, 1989.
On November 16, 1989, respondent sent a letter to Arturo and
Esther informing them of his readiness and willingness to pay the
full amount of the purchase price. The letter contained a demand
upon the spouses to comply with their obligation to turn over
possession of the property to him. On the same date, Esther, through
her attorney-in-fact, executed in favor of respondent, a Contract to
Sell the property to the extent of her conjugal interest therein for the
sum of six hundred fifty thousand pesos (P650,000.00) less the sum
already received by her and Arturo. Esther agreed to surrender
possession of the property to respondent within twenty (20) days
from November 16, 1989, while the latter promised to pay the
balance of the purchase price in the amount of one million two
hundred ninety thousand pesos (P1,290,000.00) after being placed in
possession of the property. Esther also obligated herself to execute
and deliver to respondent a deed of absolute sale upon full payment.
In a letter dated December 7, 1989, respondent informed the
spouses that he had set aside the amount of One Million Two
Hundred Ninety Thousand Pesos (P1,290,000.00) as evidenced by
Citibank Check No. 278107 as full payment of the purchase price.
He reiterated his demand upon them to comply with their obligation

to turn over possession of the property. Arturo and Esther failed to
deliver the property which prompted respondent to cause the
annotation of another adverse claim on TCT No. 145316. On
January 12, 1990, respondent filed a complaint for specific
performance with damages against petitioners. Arturo filed his
answer to the complaint while his wife was declared in default.
The Regional Trial Court (RTC) dismissed the complaint for
specific performance. It ruled that the Special Power of Attorney
(SPA) ostensibly issued by Esther in favor of Arturo was void as it
was falsified. Hence, the court concluded that the SPA could not
have authorized Arturo to sell the property
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VOL. 439, SEPTEMBER 30, 2004 655

to respondent. The trial court also noted that the check issued by
respondent to cover the earnest money was dishonored due to
insufficiency of funds and while it was replaced with another check
by respondent, there is no showing that the second check was issued
as payment for the earnest money on the property.
On appeal taken by respondent, the Court of Appeals reversed
the decision of the trial court. It ruled that the SPA in favor of
Arturo, assuming that it was void, cannot affect the transaction
between Esther and respondent. The appellate court ratiocinated that
it was by virtue of the SPA executed by Esther, in favor of her sister,
that the sale of the property to respondent was effected. On the other
hand, the appellate court considered the RMOA executed by Arturo
in favor of respondent valid to effect the sale of Arturo’s conjugal
share in the property.
Dissatisfied with the appellate court’s disposition of the case,
petitioner seeks a reversal of its decision alleging that:
I.
The Court of Appeals committed serious and manifest error when it decided
on the appeal without affording petitioner his right to due process.
II.
The Court of Appeals committed serious and manifest error in reversing

and setting aside the findings of fact by the trial court.
III.
The Court of Appeals erred in ruling that a contract to sell is a contract

of sale, and in ordering petitioner to execute a registrable form of deed of
1
1
sale over the property in favor of respondent.
_______________
1 Rollo, pp. 21-22.
656

Petitioner contends that he was not personally served with copies of

summons, pleadings, and processes in the appeal proceedings nor
was he given an opportunity to submit an appellee’s brief. He alleges
that his counsel was in the United States from 1994 to June 2000,
and he never received any news or communication from him after
the proceedings in the trial court were terminated. Petitioner submits
that he was denied due process because he was not informed of the
appeal proceedings, nor given the chance to have legal
representation before the appellate court.
We are not convinced. The essence of due process is an
opportunity to be heard. Petitioner’s failure to participate in the
appeal proceedings is not due to a cause imputable to the appellate
court but because of petitioner’s own neglect in ascertaining the
status of his case. Petitioner’s counsel is equally negligent in failing
to inform his client about the recent developments in the appeal
proceedings. Settled is the rule that a party
2
is bound by the conduct,
negligence and mistakes of his counsel. Thus, petitioner’s plea of
denial of due process is downright baseless.
Petitioner also blames the appellate court for setting aside the
factual findings of the trial court and argues that factual findings of
the trial court are given much weight and respect when supported by
substantial evidence. He asserts that the sale between him and
respondent is void for lack of consent because the SPA purportedly
executed by his wife Esther is a forgery and therefore, he could not
have validly sold the subject property to respondent.
Next, petitioner theorizes that the RMOA he executed in favor of
respondent was not perfected because the check representing the
earnest money was dishonored. He adds that there is no evidence on
record that the second check issued by
_______________
2 Heirs of Elias Lorilla v. Court of Appeals, 368 Phil. 638; 330 SCRA 429 (2000).
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VOL. 439, SEPTEMBER 30, 2004 657

respondent was intended to replace the first check representing

payment of earnest money.
Respondent admits that the subject property is co-owned by
petitioner and his wife, but he objects to the allegations in the
petition bearing a relation to the supposed date of the marriage of the
vendors. He contends that the alleged date of marriage between
petitioner and his wife is a new factual issue which was not raised
nor established in the court a quo. Respondent claims that there is no
basis to annul the sale freely and voluntarily entered into by the
husband and the wife.
The focal issue in the instant petition is whether petitioner may
be compelled to convey the property to respondent under the terms
of the RMOA and the Contract to Sell. At bottom, the resolution of
the issue entails the ascertainment of the contractual nature of the
two documents and the status of the contracts contained therein.
Contracts, in general, require the presence of three essential
elements: (1) consent of the contracting parties; (2) object certain
which is the subject matter of3 the contract; and (3) cause of the
obligation which is established.
Until the contract is perfected, it cannot, as an independent4
source of obligation, serve as a binding juridical relation. In a
contract of sale, the seller must consent to transfer ownership in
exchange for the price, the subject matter must be determinate,5
and
the price must be certain in money or its equivalent. Being
essentially consensual, a contract of sale is perfected at the moment
there is a meeting of the minds upon the
_______________
3 ART. 1318, CIVIL CODE OF THE PHILIPPINES; Santos v. Heirs of Jose

Mariano and Erlinda Mariano-Villanueva, G.R. No. 143325, October 24, 2000, 344
SCRA 284.
4 Ang Yu v. Asuncion, G.R. No. 109125, December 2, 1994, 238 SCRA 602.
5 Heirs of Juan San Andres v. Rodriguez, 388 Phil. 571; 332 SCRA 769 (2000).
658

6
thing which is the object of the contract and upon the price.
However, ownership of the thing sold shall not be transferred7
to the
vendee until actual or constructive delivery of the property.
On the other hand, an accepted unilateral promise which specifies
the thing to be sold and the price to be paid, when coupled with a
valuable consideration distinct and separate from the price,
8
is what
8
may properly be termed a perfected contract of option. An option
merely grants a privilege to buy or sell within an agreed time and at
a determined price. It is separate and distinct from that which 9the
parties may enter into upon the consummation of the option. A
perfected contract of option does not result in the perfection or
consummation of 10the sale; only when the option is exercised may a
sale be perfected. The option must, 11
however, be supported by a
consideration distinct from the price.
Perusing the RMOA, it signifies a unilateral offer of Arturo to
sell the property to respondent for a price certain within a period of
thirty days. The RMOA does not impose upon respondent an
obligation to buy petitioner’s property, as in fact it does not even
bear his signature thereon. It is quite clear that after the lapse of the
thirty-day period, without respondent having exercised his option,
Arturo is free to sell the property to another. This shows that the
intent of Arturo is merely to grant respondent the privilege to buy
the property within the period therein stated. There is nothing in the
_______________
6 Laforteza v. Machuca, 389 Phil. 167; 333 SCRA 643 (2000).

7 Heirs of Quirico Seraspi and Purificacion Seraspi v. Court of Appeals, 387 Phil.
306; 331 SCRA 293 (2000).
8 Ang Yu v. Asuncion, supra note 4.
9 Equatorial Realty Development, Inc. v. Mayfair Theater, Inc., 332 Phil. 525; 264
SCRA 483 (1996).
10 Cavite Development Bank v. Lim, 381 Phil. 355; 324 SCRA 346 (2000).
11 De la Cavada v. Diaz, 37 Phil. 982 (1918), Beaumont v. Prieto, 41 Phil. 670
(1916).
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VOL. 439, SEPTEMBER 30, 2004 659

RMOA which indicates that Arturo agreed therein to transfer

ownership of the land which is an essential element in a contract of
sale. Unfortunately, the option is not binding upon the promissory 12
since it is not supported by a consideration distinct from the price.
As a rule, the holder of the option, after accepting the promise
and before he exercises his option, is not bound to 13buy. He is free
either to buy or not to buy later. In Sanchez v. Rigos we ruled that
in an accepted unilateral promise to sell, the promissor is not bound
by his promise and may, accordingly, withdraw it, since there may
be no valid contract without a cause or consideration. Pending notice
of its withdrawal, his accepted promise partakes of the nature of an
offer to sell which, if acceded or consented to, results in a perfected
contract of sale.
Even conceding for the nonce that respondent had accepted the
offer within the period stated and, as a consequence, a bilateral
contract of purchase and sale was perfected, the outcome would be
the same. To benefit from such situation, respondent would have to
pay or at least make a valid tender of payment of the price for only
then could
14
he exact compliance with the undertaking of the other
party. This respondent failed to do. By his own admission, he
merely informed respondent spouses of his readiness and
willingness to pay. The fact that he had set aside a check in the
amount of One Million Two Hundred Ninety Thousand Pesos
(P1,290,000.00) representing the balance of the purchase price could
not help his cause. Settled is the rule that tender of payment must be
made in legal tender. A check is not legal 15
tender, and therefore
cannot constitute a valid tender of payment. Not having
_______________
12 Atkins, Kroll and Co., Inc. v. Cua Hian Tek, 102 Phil. 948.
13 150-A Phil. 714; 45 SCRA 368 (1972).
14 Article 1191, CIVIL CODE.
15 Cebu International Finance Corporation v. Court of Appeals, 374 Phil. 844; 316
SCRA 488 [1999]; Far East Bank & Trust Com
660

made a valid tender of payment, respondent’s action for specific

performance must fail.
With regard to the payment of Five Thousand Pesos (P5,000.00),
the Court is of the view that the amount is not earnest money as the
term is understood in Article 1482 which signifies proof of the
perfection of the contract of sale, but merely a guarantee that
respondent is really interested to buy the property. It is not the giving
of earnest money, but the proof of the concurrence of all the
essential elements of the contract
16
of sale which establishes the
existence of a perfected sale. No reservation of ownership on the
part of Arturo is necessary since, as previously stated, he has never
agreed to transfer ownership of the property to respondent.
Granting for the sake of argument that the RMOA is a contract of
sale, the same would still be void not only for want of consideration
and absence of respondent’s signature thereon, but also for lack of
Esther’s conformity thereto. Quite glaring is the absence of the
signature of Esther in the RMOA, which proves that she did not give
her consent to the transaction initiated by Arturo. The husband
cannot alienate any17 real property of the conjugal partnership without
the wife’s consent.
However, it was the Contract to Sell executed by Esther through

her attorney-in-fact which the Court of Appeals made full use of.
Holding that the contract is valid, the appellate court explained that
while Esther did not authorize Arturo to sell the property, her
execution of the SPA authorizing her sister to sell the land to
respondent clearly shows her intention to convey her interest in
favor of respondent. In effect, the court declared that the lack of
Esther’s consent to the sale
_______________
pany v. Diaz Realty, Inc., G.R. No. 38588, August 23, 2001, 363 SCRA 659.
16 San Miguel Properties Philippines, Inc. v. Huang, 391 Phil. 636; 336 SCRA 737
(2000).
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VOL. 439, SEPTEMBER 30, 2004 661

made by Arturo was cured by her subsequent conveyance of her

interest in the property through her attorney-in-fact.
We do not share the ruling.
The nullity of the RMOA as a contract of sale emanates not only
from lack of Esther’s consent thereto but also from want of
consideration and absence of respondent’s signature thereon. Such
nullity cannot be obliterated by Esther’s subsequent confirmation of
the putative transaction as expressed in the
18
Contract to Sell. Under
the law, a void contract cannot be ratified and the action or defense
for the declaration
19
of the inexistence of a contract does not
prescribe. A void contract produces no effect either against or in
favor of anyone–it cannot20create, modify or extinguish the juridical
relation to which it refers.
True, in the Contract to Sell, Esther made reference to the earlier
RMOA executed by Arturo in favor of respondent. However, the
RMOA which Arturo signed is different from the deed which Esther
executed through her attorney-in-fact. For one, the first is sought to
be enforced as a contract of sale while the second is purportedly a
contract to sell only. For another, the terms and conditions as to the
issuance of title and delivery of possession are divergent.
The congruence of the wills of the spouses is essential for the
valid disposition of conjugal property. Where the conveyance is
contained in the same document which bears the conformity of both
husband and wife, there could be no question on the validity of the
transaction. But when there are two (2) documents on which the
signatures of the spouses separately appear, textual concordance of
the documents is indispensable. Hence, in this case where the wife’s

putative consent to
_______________

19 Article 1410, CIVIL CODE; Santos v. Santos, G.R. No. 133895, October 2,
2001, 366 SCRA 395.
20 Gochan v. Young, G.R. No. 131889, March 12, 2001, 354 SCRA 207.
662

the sale of conjugal property appears in a separate document which

does not, however, contain the same terms and conditions as in the
first document signed by the husband, a valid transaction could not
have arisen.
Quite a bit of elucidation on the conjugal partnership of gains is
in order.
Arturo and Esther appear to have been married before the
effectivity of the Family Code. There being no indication that they
have adopted a different property regime, their property relations
would automatically21 be governed by the regime of conjugal
partnership of gains. The subject land which had been admittedly
acquired during the 22marriage of the spouses forms part of their
conjugal partnership.
Under the Civil Code, the husband is the administrator of the 23
conjugal partnership. This right is clearly granted to him by law.
More, the husband is the sole administrator.
24
The wife is not entitled
as of right to joint administration.
The husband, even if he is statutorily designated as administrator
of the conjugal partnership, cannot validly alienate or encumber any
real property
25
of the conjugal partnership without the wife’s
consent. Similarly, the wife cannot dispose of any property
belonging to the conjugal partnership without the conformity of the
husband. The law is explicit that the wife cannot bind the conjugal
partnership
26
without the husband’s consent, except in cases provided
by law.
More significantly, it has been held that prior to the liquidation of
the conjugal partnership, the interest of each spouse in the conjugal
assets is inchoate, a mere expectancy, which
_______________
21 ART. 119, CIVIL CODE.


24 Ysasi v. Hon. Fernandez, 132 Phil. 526; 23 SCRA 1079 (1968).
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VOL. 439, SEPTEMBER 30, 2004 663

constitutes neither a legal nor an equitable estate, and does not ripen
into title until it appears that there are assets in the community as a
result of the liquidation and settlement. The interest of each spouse
is limited to the net remainder or “remanente liquido” (haber
ganancial) resulting from the 27 liquidation of the affairs of the
partnership after its dissolution. Thus, the right of the husband or
wife to one-half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership, or after
dissolution of the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets left
28
which can
be divided between the spouses or their respective heirs.
In not a few cases, we ruled that the sale by the husband of
property belonging to the conjugal partnership without the consent
of the wife when there is no showing that the latter is incapacitated
is void ab initio because it is in contravention 29
of the mandatory
requirements of Article 166 of the Civil Code. Since Article 166 of
the Civil Code requires the consent of the wife before the husband
may alienate or encumber any real property of the conjugal
partnership, it follows that acts or transactions executed against this
mandatory provision
30
are void except when the law itself authorizes
their validity.
Quite recently, in31San Juan Structural and Steel Fabricators, Inc.
v. Court of Appeals, we ruled that neither spouse could alienate in
favor of another, his or her interest in the partnership or in any
property belonging to it, or ask for partition of the properties before
the partnership itself had been
_______________
27 Nable Jose v. Nable Jose, 41 Phil. 713 (1916); Manuel v. Losano, 41 Phil. 855
(1918).
28 Quintos de Ansaldo v. Sheriff of Manila, 64 Phil. 115 (1937).
29 Nicolas v. Court of Appeals, No. L-37631, October 12, 1987, 154 SCRA 635;
Garcia v. Court of Appeals, 215 Phil. 380; 130 SCRA 433 (1984); Tolentino v.
Cardenas, 123 Phil. 517; 16 SCRA 720 (1966).
31 357 Phil. 631; 296 SCRA 631 (1998).
664

legally dissolved. Nonetheless, alienation of the share of each

spouse in the conjugal partnership could be had after separation of
property of the spouses during the marriage had been judicially
decreed,
32
upon their petition for any of the causes33 specified in Article
191 of the Civil Code in relation to Article 214 thereof.
As an exception, the husband may dispose of conjugal property
without the wife’s consent if such sale is necessary to answer for
conjugal liabilities mentioned in Articles 161 and
_______________
32 ART. 191. The husband or the wife may ask for the separation of property, and
it shall be decreed when the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction, or has been declared absent, or when legal
separation has been granted.
In case of abuse of powers of administration of the conjugal partnership property
by the husband, or in case of abandonment by the husband, separation of property
may also be ordered by the court, according to the provisions of Articles 167 and 178,
No. 3.
In all these cases, it is sufficient to present the final judgment which has been
entered against the guilty or absent spouse.
The husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval. All the creditors of the
husband and of the wife, as well as of the conjugal partnership, shall be notified of
any petition for judicial approval of the voluntary dissolution of the conjugal
partnership, so that any such creditors may appear at the hearing to safeguard his
interests. Upon approval of the petition for dissolution of the conjugal partnership, the
court shall take such measures as may protect the creditors and other third persons.
After dissolution of the conjugal partnership, the provisions of Articles 214 and
215 shall apply. The provisions of this Code concerning the effect of partition stated
in Articles 498 to 501 shall be applicable.
33 ART. 214. Each spouse shall own, dispose of, possess, administer and enjoy his
or her own separate estate, without the consent of the other. All earnings from any
profession, business or industry shall likewise belong to each spouse.
665
VOL. 439, SEPTEMBER 30, 2004 665

34 35
162 of the Civil Code. In Tinitigan v. Tinitigan, Sr., the Court
ruled that the husband may sell property belonging to the conjugal
partnership even without the consent of the wife if the sale is

necessary to answer for a big conjugal liability which might
endanger the family’s economic standing. This is one instance where
the wife’s consent is not required and, impliedly, no judicial
intervention is necessary.
Significantly, the Family Code has introduced some changes
particularly on the aspect of the administration of the conjugal
partnership. The new law provides that the administration of the
conjugal partnership is now a joint under-
_______________
34 ART. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of the conjugal
partnership, and those contracted by the wife, also for the same purpose, in the cases where she
may legally bind the partnership;
(2) Arrears or income due, during the marriage, from obligations which constitute a charge
upon property of either spouse or of the partnership;
(3) Minor repairs or for mere preservation made during the marriage upon the separate
property of either the husband or the wife; major repairs shall not be charged to the partnership;
(4) Major or minor repairs upon the conjugal partnership property;
(5) The maintenance of the family and the education of the children of both husband and
wife, and of legitimate children of one of the spouses;
(6) Expenses to permit the spouses to complete a professional, vocational or other course.
ART. 162. The value of what is donated or promised to the common children by
the husband, only for securing their future or the finishing of a career, or by both
spouses through a common agreement shall also be charged to the conjugal
partnership, when they have not stipulated that it is to be satisfied from the property
of one of them, in whole or in part.
35 No. L- 45418, October 30, 1980, 100 SCRA 619.
666

taking of the husband and the wife. In the event that one spouse is
incapacitated or otherwise unable to participate in the administration
of the conjugal partnership, the other spouse may assume sole
powers of administration. However, the power of administration
does not include the power to dispose 36
or encumber property
belonging to the conjugal partnership. In all instances, the present
law specifically requires the written consent of the other spouse, or
authority of the court for the disposition or encumbrance of conjugal
partnership property
37
without which, the disposition or encumbrance
shall be void.
Inescapably, herein petitioner’s action for specific performance

must fail. Even on the supposition that the parties only disposed of
their respective shares in the property, the sale, assuming that it
exists, is still void for as previously stated, the right of the husband
or the wife to one-half of the conjugal assets does not vest until the
liquidation of the conjugal partnership. Nemo dat qui non habet. No
one can give what he has not.
WHEREFORE, the appealed Decision is hereby REVERSED
and SET ASIDE. The complaint in Civil Case No. 90-106 of the
Regional Trial Court of Makati is ordered DISMISSED. No
pronouncement as to costs.
SO ORDERED.
Puno (Chairman), Austria-Martinez and Callejo, Sr., JJ.,

concur.
Chico-Nazario, J., On Leave.
Judgment reversed and set aside, complaint dismissed.
Note.—Even granting that the wife actually participated in

negotiating for the sale of the properties, her written con-
_______________
36 ART. 124, FAMILY CODE OF THE PHILIPPINES.

37 Ibid.
667
VOL. 439, SEPTEMBER 30, 2004 667

Allied Domecq Phil., Inc. vs. Villon
sent to the sale is required by law for its validity. Being merely
aware of a transaction is not consent. (Jader-Manalo vs. Camaisa,
374 SCRA 498 [2002])
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7/26/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 439

VOL. 439, SEPTEMBER 30, 2004 649

ARTURO R. ABALOS, petitioner, vs. DR. GALICANO S.

Civil Law; Contracts; Elements; Contracts, in general, require the

650 SUPREME COURT REPORTS ANNOTATED

Abalos vs. Macatangay, Jr.

Same; Same; An accepted unilateral promise which specifies the thing

VOL. 439, SEPTEMBER 30, 2004 651

Abalos vs. Macatangay, Jr.

against or in favor of anyone–it cannot create, modify or extinguish the

652 SUPREME COURT REPORTS ANNOTATED

Abalos vs. Macatangay, Jr.

mentioned in Articles 161 and 162 of the Civil Code. In Tinitigan v.

PETITION for review on certiorari of a decision of the Court of

The facts are stated in the opinion of the Court.

VOL. 439, SEPTEMBER 30, 2004 653

Rodolfo A. Espiritu for respondent.

The instant petition seeks a reversal of the Decision of the Court of

meters, covered by Transfer Certificate of Title (TCT) No. 145316

654 SUPREME COURT REPORTS ANNOTATED

annotation of his adverse claim on the title of the spouses to the

He reiterated his demand upon them to comply with their obligation

VOL. 439, SEPTEMBER 30, 2004 655

The Court of Appeals committed serious and manifest error in reversing

The Court of Appeals erred in ruling that a contract to sell is a contract

1 Rollo, pp. 21-22.

656 SUPREME COURT REPORTS ANNOTATED

Petitioner contends that he was not personally served with copies of

VOL. 439, SEPTEMBER 30, 2004 657

Abalos vs. Macatangay, Jr.

respondent was intended to replace the first check representing

3 ART. 1318, CIVIL CODE OF THE PHILIPPINES; Santos v. Heirs of Jose

658 SUPREME COURT REPORTS ANNOTATED

6 Laforteza v. Machuca, 389 Phil. 167; 333 SCRA 643 (2000).

VOL. 439, SEPTEMBER 30, 2004 659

RMOA which indicates that Arturo agreed therein to transfer

660 SUPREME COURT REPORTS ANNOTATED

made a valid tender of payment, respondent’s action for specific

However, it was the Contract to Sell executed by Esther through

VOL. 439, SEPTEMBER 30, 2004 661

made by Arturo was cured by her subsequent conveyance of her

the documents is indispensable. Hence, in this case where the wife’s

18 Article 1409, CIVIL CODE.

662 SUPREME COURT REPORTS ANNOTATED

the sale of conjugal property appears in a separate document which

21 ART. 119, CIVIL CODE.

23 ART. 165, CIVIL CODE.

VOL. 439, SEPTEMBER 30, 2004 663

664 SUPREME COURT REPORTS ANNOTATED

legally dissolved. Nonetheless, alienation of the share of each

VOL. 439, SEPTEMBER 30, 2004 665

partnership even without the consent of the wife if the sale is

34 ART. 161. The conjugal partnership shall be liable for:

666 SUPREME COURT REPORTS ANNOTATED

Inescapably, herein petitioner’s action for specific performance

Puno (Chairman), Austria-Martinez and Callejo, Sr., JJ.,

Judgment reversed and set aside, complaint dismissed.

Note.—Even granting that the wife actually participated in

36 ART. 124, FAMILY CODE OF THE PHILIPPINES.

VOL. 439, SEPTEMBER 30, 2004 667

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