35

A, a married man, and B, an unmarried woman, entered into a written agreement to

marry each other when A becomes a widower. After becoming a widower, A married C.
Can B sue for breach of promise to marry?

Answer:

No, B cannot sue A for breach of promise to marry.

An action for breach of promise to marry has no standing in Civil Law, apart from the right
to recover money or property advanced by the plaintiff upon the faith of such promise.

Moreover, the written agreement entered into by A and B to marry each other when A
becomes a widower is unenforceable for being contrary to morals and good customs or
public policy. When both parties are at fault and the act does not constitute a criminal
offense, neither can demand the performance of the other’s undertaking.

MODIFIED ANSWER:

No, B cannot sue A for breach of promise to marry.

As a rule, breach of promise to marry is not an actionable wrong unless preparations have been made
and invitations have been sent out only to walk out of the wedding. Such an act is palpably and
unjustifiably contrary to good customs and will give the aggrieved party the right to sue for damages
under the Civil Code. Such circumstances, however, are not present in the foregoing problem, hence B
cannot sue for breach of promise to marry. Moreover, the written agreement entered into by A and B
to marry each other when A becomes a widower is unenforceable for being contrary to morals and
good customs or public policy. When both parties are at fault and the act does not constitute a
criminal offense, neither can demand the performance of the other’s undertaking.

36

The National Government donated a parcel of land in favor of the Municipality of

Dangwa. The latter immediately constructed a commercial building on the said lot for lease
to private entity or persons. Does it become a patrimonial property of the municipality?

Answer:

I will qualify. If the land has been classified or declared by the National Government no longer
intended for public use or removed from the coverage of public dominion and therefore
converted into patrimonial land, it may be disposed through donation. Thus when donated to
a municipality, the latter becomes the owner of the land. Accordingly, the land becomes
either property for public use or patrimonial property depending on how Dangwa would
make use of the same. Thus when Dangwa constructed a commercial building on the lot for
lease to private persons or entities, the lproperty is patrimonial in character.

If no such declaration has been made that the land was classified as patrimonial, the same
remains as property of public dominion. Hence, even if donated to Dangwa, it does not
become patrimonial in character for the latter may only make use of the same for public
purpose such as erection of municipal building, public school or public market.

37
 Andal is the registered owner of land adjoining the bank of Damayan River. From the
time of registration of land up to year 2000, alluvial deposits had accumulated on the part
of the property adjoining the river. This accretion was occupied by Badong in 1975.
Badong has been in possession ever since in the concept of an owner, openly, continuously,
adversely and without interruption whatso/ever. In 2000, Andal brought an action against
Badong to quiet his title to said alluvial property invoking Art. 457 of the Civil Code.
Badong, however, contends that he become absolute owner of the property through
prescription.

If you were the judge, how would you decide the case? WHY?

Answer:

If I were the judge I would rule in favor of Badong.

Under the law, ordinary acquisitive prescription requires possession of things in good faith
and with just title for the time fixed by law. Ownership and other real rights over
immovable property are acquired by ordinary prescription through possession of ten
years.

Here, Badong took possession of the accretion in good faith since 1975 in the concept of an
owner, openly, continuously, adversely and without interruption. This possession was for
more than 10 years prior to Andal’s filing of an action to quiet title in 2000.

Andal could have acquired ownership had he immediately registered in his name the
accretion but he did not. He slept on his right to invoke Article 457 of the Civil Code.

MODIFIED ANSWER:

If I were the judge, I would rule in favor of Badong.

While it is true that the alluvial deposits belong to the owner of the lot adjoining such
accretion, it dose not automatically bestow imprescriptibility. If the owner of the said land
has not registered this under the Torrens system, said land will be subject to acquisition by
prescription, which was what occurred in this case.

Since Badong has been in possession of the accretion for almost 25 years openly,
continuously, adversely and without interruption whatsoever, such accretion rightfully
belongs to him by prescription.

38

X constructed a house on a lot which he was leasing from Y. Later, X executed a chattel
mortgage over said house in favor of Z as security for a loan obtained from the latter. Still,
later, X acquired ownership of the land where his house was constructed, after which he
mortgaged both house and land in favor of a bank, which mortgage was annotated on the
Torrens Certificate of Title. When X failed to pay his loan to the bank, the latter, being the
highest bidder at the foreclosure sale, foreclosed the mortgaged and acquired X’s house and
lot. Learning of the proceedings conducted by the bank, Z is now demanding that the bank
reconvey to him X’s house or pay X’s loan to him plus interest. Is Z’s demand against the
bank valid and sustainable? Why?
Answer:

No, Z’s demand against the bank is not valid as there is no obligation existing between Z
and the bank. (Article 1156, NCC))

39

B constructed a house on a particular land. O, the owner of the above particular land
discovered the construction after a year. It turned out later that almost all of the materials
used in constructing the house were owned by M.

What are the rights and obligations of B, O and M. Justify your answer.

Answer:

Assuming all were in good faith, as there are no facts given to the contrary, here are their
rights and obligations:

O, the owner of the land on which the house has been built, shall have the right to
appropriate as his own the house after payment of the indemnity provided for in Articles
546 and 548 of the New Civil Code, or to oblige B, the builder, to pay the price of the land.
However, B cannot be obliged to buy the land if its value is considerably more than that of
the house. In such case, B shall pay reasonable rent, if O does not choose to appropriate the
house after proper indemnity. The parties shall agree upon the terms of the lease and in
case of disagreement, the court shall fix the terms thereof. (Article 448, NCC)

The right to choose between appropriating the house or selling the land is given to O, the
owner of the land. (Ballatan vs. CA, G.R. No. 125687, March 2, 1999)

M, the owner of the materials, has a right to recover the value of his materials from B, the
builder, and subsidiarily from O, the owner of the land, in case of insolvency of B. (Article
455, NCC)

Modified Answer:

On the assumption that all are in good faith since no contrary facts are present in the
aforesaid problem, the rights and obligations of A, B, and O are respectively as follows:

O, the owner of the land, shall have the right to appropriate as his own the house after
payment of the indemnity. If O does not choose to appropriate, he may oblige B builder to
pay the price of the land except if the value of the land is considerably more than that of the
house. In such a case, B shall pay reasonable rent therefor. O and B shall agree upon the
terms of the lease and in case of disagreement, the court shall fix the terms thereof.

M, the owner of the materials, has a right to recover the value of his materials from B, the
builder, and subsidiarily from O, the owner of the land, in case of insolvency of B.
 40

A, B and C are co-owners of Lot 123 being occupied by Y in the concept of the owner.

A without informing and including B & C as co–plaintiffs, filed an action against Y for
quieting of title.

Y in his answer alleges that the case should be immediately DISMISSED since A alone
has no legal standing to file the suit since the suit is not an action for ejectment pursuant to
Art. 487 which states that “Any one of the co-owners may bring an action in ejectment”.
DECIDE.

Answer:

The case should not be dismissed immediately. Under Article 477 of the NCC, in an action
for quieting of title the plaintiff must have legal or equitable title to, or interest in the real
property which is the subject-matter of the action. Here, the title of the property pertains to
the co-owners A, B, and C. The action filed by A did not implead the other co-owners as
plaintiffs but it does not necessarily imply that they cannot be joined in the action. Pursuant
to Section 11, Rule 3 of the Rules of Civil Procedure, neither misjoinder nor non-joinder of
parties is ground for dismissal of an action. Parties may be added by order of the court on
motion of any party or on its own initiative at any stage of the action and on such terms as
are just.

MODIFIED ANSWER:

The contention of Y is totally misplaced.

According to several cases decided by the Supreme Court, where the suit is brought by a co-owner,
without repudiating the co-ownership, then the suit is presumed to be filed for the benefit of the
other co-owners and may proceed without impleading the other co-owners. The Court also said that
Article 487 of the Civil Code covers all kinds of actions for the recovery of possession.

In the case at bar, the complaint for quieting of title filed by A precisely to recover the lot occupied by
Y was brought for the benfit of the co-ownership. Thus, a co-owner may file suit without necessarily
joining all the other co-owners as co-plaintiffs because the suit is deemed to be instituted for the
benefit of all. Any judgment of the court in favor of the plaintiff will benefit the other co-owners

41

Mr. Palma, widower, has three daughters D, D-1 and D-2. He executes a Will
disinheriting D because she married a man he did not like, and instituting daughters D1 and
D-2 as his heirs to his entire estate of P1,000,000.00. Upon Mr. Palma’s death, how should
his estate be divided? Explain.

Answer:

The disinheritance must be based on specific grounds: Children and

descendants may be disinherited for the following reasons: (1) When a child or
descendant has been found guilty of an attempt against the life of the testator,
his or her spouse, descendants, or ascendants; (2) When a child or descendant
has accused the testator of a crime for which the law prescribes imprisonment
for six years or more, if the accusation has been found groundless; (3) When a
child or descendant has been convicted of adultery or concubinage with the
spouse of the testator; (4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make a will or to change
one already made; (5) A refusal without justifiable cause to support the parent
or ascendant who disinherits such child or descendant; (6) Maltreatment of the
testator by word or deed, by the child or descendant; (7) When a child or
descendant leads a dishonorable or disgraceful life; (8) Conviction of a crime
which carries with it the penalty of civil interdiction. (Article 919, Civil Code).

Here there was a case of ineffective disinheritance because marrying a man that the father
did not approve of is not a ground for disinheriting D. Therefore, the institution of D-l and
D-2 shall be annulled insofar as it prejudices the legitime of D, and the institution of D-l and
D-2 shall only apply on the free portion in the amount of P500, 000.00. Therefore, D, D-l
and D-2 will get their legitimes of P500.000.00 divided into three equal parts and D-l and
D-2 will get a reduced testamentary disposition of P250, 000.00 each. Hence, the shares
will be:

D should receive:  P166,666.66.

D-l P166, 666.66 + P250.000.00

D-2 P166,666.66 + P250,000.00

MODIFIED ANSWER:

Answer:

From the facts of the case, it is readily observable that the disinherintance by Mr.
Palma of his daughter D for marrying a man that the former did not approve of is not
among the specific grounds under the law for disinheriting children or descendants, hence,
ineffective.

Since the disinheritance is ineffective, the institution of D-l and D-2 shall be annulled insofar
as it prejudices the legitime of D. The institution of D-l and D-2 remains valid and only applies
on the free portion in the amount of P500, 000.00. Therefore, D, D-l and D-2 are entitled to
their legitimes of P500.000.00 divided into three equal parts and D-l and D-2 will get a
reduced testamentary disposition of P250, 000.00 each from the free portion of their father’s
estate. Consequently, the respective shares of D, D-1 and D-2 are as follows:

D should receive:  P166,666.66.

D-l P166, 666.66 + P250.000.00

D-2 P166,666.66 + P250,000.00

42

Before his death, A borrowed from X P1,000 evidenced by a promissory note. A died
without paying the debt. He left no property, but is survived by his son, B, who is making
good in the buy-and-sell business. Subsequently, X bought an action against B for the
collection of P1,000 plus legal interest thereon on the ground that, since B is the only heir
of A, he has inherited from the latter not only the latter’s property, but also all of his rights
and obligations. Will the action prosper? Reasons.
Answer:

Yes the case will prosper.

Under Article 774 of the New Civil Code of the Philippines, it is stated that “succession is a
mode of acquisition by virtue of which the property, rights and obligations to the extent of
the value of the inheritance, of a person are transmitted through his death to another or
others either by his will or by operation of law”. Correlative thereto is Article 776 of the
same code which provides that “the inheritance includes all the property rights and
obligations of a person which are not extinguished by his death.”

Here, while the A may no longer be compelled to pay the loan, the debt subsists against his
estate. However, no property or portion of the inheritance may be transmitted to his
heir(s), B, unless the debt has first been satisfied.

Thus, the case will prosper.

REVISED ANSWER:

No. The action will not prosper. While it is true that Art. 776 of the NCC provides that the
inheritance includes not only the property but also the rights and obligations of the decedent
which are not extingusihed by his death, it is essential that such rights and obligations must
be transmissible in character.

As held by the Supreme Court in several cases, money debts left by the decedent do not form
part of the inheritance and are therefore intransmissible. Such money debts and obligations
must be liquidated in approrpiate proceedings for the settlement of the estate of the
decedent. It is the estate of the decedent which is vested and charged with his rights and
obligations which survived after his death and not the heirs.

43

Betty and Lydia were co-owners of a parcel of land. Last January 31, 2001, when she
paid her real estate tax, Betty discovered that Lydia had sold her share to Emma on
November 10, 2000. The following day, Betty offered to redeem her share from Emma, but
the latter replied that Betty’s right to redeem has already prescribed. Is Emma correct or
not? Why?

Answer:

Emma, the buyer, is not correct. Betty can still enforce her right of legal redemption as a co-
owner. Article 1623 of the Civil Code gives a co-owner 30 days from written notice of the
sale by the vendor to exercise his right of legal redemption. In the present problem, the 30-
day period for the exercise by Betty of her right of redemption had not even begun to run
because no notice in writing of the sale appears to have been given to her by Lydia.

44
 Ubaldo is the owner of a building which has been leased by Remigio for the past 20
years. Ubaldo has repeatedly assured Remigio that if he should decide to sell the building,
he will give Remigio the right of first refusal. On June 30, 1994, Ubaldo informed Remigio
that he was willing to sell the building for P5 Million. The following day, Remigio sent a
letter to Ubaldo offering to buy the building at P4.5 Million. Ubaldo did not reply. One week
later, Remigio received a letter from Santos informing him that the building has been sold to
him by Ubaldo for P5 Million, and that he will not renew Remigio’s lease when it expires.
Remigio filed an action against Ubaldo and Santos for cancellation of the sale, and to compel
Ubaldo to extecuea deed of absolute sale in his favor, based on his right of first refusal. Will
the action prosper? Explain.

Answer:

No, the action to compel Ubaldo to execute the deed of absolute sale will not prosper.
According to Ang Yu v. Court of Appeals, the right of first refusal is not based on contract
but is predicated on the provisions of human relations and, therefore, its violation is
predicated on quasi-delict. Secondly, the right of first refusal implies that the offer of the
person in whose favor that right was given must conform with the same terms and
conditions as those given to the offeree. In this case, however, Remigio was offering only
P4.5 Million instead of P5 Million.

45

Anastacia purchased a house and lot on installments at a housing project in Quezon

City. Subsequently, she was employed in California and a year later, she executed a deed of
donation, duly authenticated by the Philippine Consulate in Los Angeles, California, donating
the house and lot to her friend Amanda. The latter brought the deed of donation to the
owner of the project and discovered that Anastacia left unpaid installments and real estate
taxes. Amanda paid these so that the donation in her favor can be registered in the project
owner’s office. Two months later, Anastacia died, leaving her mother Rosa as her sole heir.
Rosa filed an action to annul the donation on the ground that Amanda did not give her
consent in the deed of donation or in a separate public instrument. Amanda replied that
the donation was an onerous one because she had to pay unpaid installments and taxes;
hence her acceptance may be implied. Who is correct?

Answer:

Rosa is correct because the donation is void. The property donated was an immovable. For
such donation to be valid, Article Article 749 of the New Civil Code requires both the
donation and the acceptance to be in a public instrument. There being no showing that
Amanda's acceptance was made in a public instrument, the donation is void.

The contention, that the donation is onerous and therefore, need not comply with Article
749 for validity is without merit. The donation is not onerous because it did not impose on
Amanda the obligation to pay the balance on the purchase price or the arrears in real estate
taxes. Amanda took it upon herself to pay those amounts voluntarily. For a donation to be
onerous, the burden must be imposed by the donor on the donee. In the problem, there is
no such burden imposed by Anastacia to Amanda.

46
 Ana leased to Bobby her one (1) hectare of land at the rate of P200,000.00 per month.
Bobby placed a machinery for the use of his sawmill business on the leased premises. How
do you classify the machinery? Is there any exception? WHY?

Answer:

The machinery is a personal property of Bobby. Under the Civ because under the Civil
Code of the Philippines movable property includes: “In general, all things which can be
transported from place to place without impairment of the real property to which they are
fixed.” Since the machinery placed by Bobby in this case can be transported, it is considered
as personal or movable property.

There is an exception to the above rule. Machinery which is movable in its nature only
becomes immobilized when placed in a plant by the owner of the property or plant, but not
when so placed by a tenant, a usufructuary, or any person having only a temporary right,
unless such person acted as the agent of the owner.

In this case, it was Bobby, a tenant who placed the machinery, hence, the nature of movable
property did not become immobilized when placed in a plant by him who is not the owner
of the property or plant.

MODIFIED ANSWER:

The Machinery is a personal property because it was placed by Bobby, a mere lessee. Under the law,
movable properties such as machinery, receptacles or instruments are treated as immovables subject
to the concurrence of the following requisites:

a. The property must be machineries, receptacles, instruments or implements;

b. They must be destined for use in the industry or work in the tenement and must be essential and
principal element of the industry and works;

c. The industry or work must be carried on in a building or on a piece of land;

d. They must be placed by the owner of the tenement.

Since Bobby is a mere lessee, the machinery placed by him is considered a movable property.

The exception would be if Bobby acts as an agent of the owner as when the he places it there
pursuant to a contract that it shall belong to the owner.

47

Pedro owns one (1) bag of cement worth P2,000.00. Juan owns two (2) bags of sand
worth P1,000.00. Pedro in good faith mixed the two (2) bags of sand with his one (1) bag of
cement out of which 20 hollow blocks were made for building purposes. DECIDE
Answer:

Juan and Pedro shall acquire a right proportional to the part belonging to them. Here they
should own 10 hollow blocks each dividing the 20 hollow blocks that were made after
mixing Pedro’s cement and Juan’s sand.  This is because they have the

Under the Civil Code of the Philippines, if  it  cannot  be  determined  which  of  the  two 
things  incorporated  is  the principal one, the thing of the greater value shall be so
considered, and  as  between  two  things  of  equal  value,  that  of  the  greater volume.

Then, Art.  473.  If  by  the  will  of  only  one  owner,  but  in  good  faith,  two things  of  the 
same  or  different  kinds  are  mixed  or  confused,  the rights  of  the  owners  shall  be 
determined  by  the  provisions  of  the preceding article.

The preceding article provides that Art.  472.  If by  the will of their owners  two things of
the same or different kinds are mixed, or if the mixture occurs by chance, and in the   latter 
case  the  things  are  not  separable  without  injury,  each owner  shall  acquire  a  right 
proportional  to  the  part  belonging  to  him,  bearing  in  mind  the  value  of  the  things 
mixed  or  confused.

 In this case since Pedro was in good faith the above rules will apply. The cement and the
sand are of the same value, they are both worth P2000 and they are of the same volume,
both are 2 bags, each owner  shall  acquire  a  right  proportional  to  the  part  belonging  to 
him. That will be an equal share to the 20 hollow blocks that were made out of their cement
and sand.

MODIFIED ANSWER:

Juan and Pedro are co-owners of the hollow blocks produced by the mixing of the 1 bag of
cement and 2 bae  latter  case  the  things  are  not  separable  without  injury,  each owner 
shall  acqgs of sand each respectively owns. Under the law, if by the will of their owners  two
things of the same or different kinds are mixed, or if the mixture occurs by chance, and in
thuire  a  right  proportional  to  the  part  belonging  to  him,  bearing in  mind  the  value  of 
the  things  mixed  or  confused.

Considering that the cement and the sand are of the same value and volume, each owner 
shall  acquire  a  right  proportional  to  the  part  belonging  to  him. That will be an equal
share to the 20 hollow blocks that were made out of their cement and sand.

Hence, Juan and Pedro owns 10 hollow blocks each dividing the 20 hollow blocks that were
made after mixing Pedro’s cement and Juan’s sand.  

48

Madeline owns a vast tract of fertile land where mango trees are planted. However,
the branches and roots of the mango trees extend over the neighboring land of Bettina
which causes so much irritation upon her. One day, Bettina gather the mango fruits which
has fallen on her ground and cut the branches and roots that extended to her land.

Upon learning of the same, Madeline confronted Bettina, arguing that Bettina cannot
gather her fruits and cut the branches as well as the roots as the mango trees belongs to
her.
 Bettina, on the other hand, countered that the mangoes, the branches as well as the
roots of the mango trees that are found on her land, thus, belong to her.

Is the argument of Bettina tenable? Discuss fully.

Answer:

Bettina is correct. The mangoes as well as the roots of the mango tree that are found on her
land belong to her.

Under the Civil Code, Art 680: If the branches of any tree should extend over a neighboring
estate, tenement, garden or yard, the owner of the latter shall have the right to demand that
they be cut off insofar as they may spread over his property, and, if it be the roots of a
neighboring tree which should penetrate into the land of another, the latter may cut them
off himself within his property.

It is clear from the law that if it be the roots of a neighboring tree which should penetrate
into the land of another, the latter may cut them off himself within his property. Hence,
Bettina has the right to cut the branches and the roots that extended to her land as allowed
by the law.

Further, Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said
land. Since the mangoes naturally fell on Bettina’s property, the ownership of said fruit
belongs to her.

MODIFIED ANSWER:

Yes. The argument of Betitina is tenable. She can gather the mango fruits that fell on her land
as her own. She can also cut the roots of the mango tree that extended to her property.

Under the law, fruits naturally falling upon adjacent land belong to the owner of said land.
Since the mangoes naturally fell on Bettina’s property, the ownership of said fruit belongs to
her.

On the other hand, the law also provides that if the branches of any tree should extend over
a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to
demand that they be cut off insofar as they may spread over his property, and, if it be the
roots of a neighboring tree which should penetrate into the land of another, the latter may
cut them off himself within his property. Bettina, therefore, has the right to cut the branches
and the roots that extended to her land as allowed by the law.

49

A and B own a party wall. A, without B’s consent, made an opening in the party wall on
December 9, 2002. In 2015, may B still close the opening?

Answer:

Yes. B may still close the opening made by A.

A party wall is for the mutual benefit and convenience of both owners. Each adjoining
owner has the right to its full use as a party wall in the improvement and enjoyment of his
property. Neither owner can use the wall in a manner that impairs the other's easement or
interferes with his or her property rights.
The cost of repair and construction of party walls owned in common, shall be borne by all
the owners of the lands or tenement having the party wall in their favor,in proportion to
the right of each.

50

On January 1, 2010, Hulyo and Wilma got married without a marriage license, all other
requisites being present. Out of their cohabitation, A and B were born. Subsequently,
Hulyo entered into another marriage with Xelena and lived together as husband and wife.
Five (5) years thereafter, Hulyo died. The only asset of Hulyo was his retirement benefit
from Philippine National Police in the amount of 1 Million. The monthly contributions of
the retirement benefit were deducted from his salary during his lifetime as police officer.
Who will be entitled to the amount of P1 Million. Legally justify your answer.

Answer:

Since the marriage was null and void, no absolute community or conjugal partnership was
established between Hulyo and Wilma. Their properties are governed by special co-
ownership provision of art 147 of FC because both Hulyo and Wilma were capacitated to
marry each other.

The said article provides that when a man and a woman who are capacitated to marry each
other, live exclusively with each other as husband and wife without the benefit of marriage
or under a void marriage: 1) their wages and salaries shall be owned by them in equal
share; and 2) property acquired by both of them through their work of industry shall be
governed by the rules on co-ownership.

Having been acquired during their cohabitation, the 1 million is presumed acquired
through their joint work and industry under article 147, hence Hulyo and Wilma are co-
owners of the said money in equal shares.

51

H and W are husband and wife. At the time of the celebration of the marriage however,
the husband was afflicted with a sexually transmissible disease which is serious and
incurable. This fact was unknown to W at the time of the marriage ceremony. One week
after the marriage, W discovered the disease of the husband. Despite the knowledge
however of such disease, the wife freely cohabited with each other as husband and wife for
one year. Thereafter, W changed her mind and wanted to file an annulment of marriage.
May W still file an action for the annulment of marriage? WHY? Legally justify your answer.

Answer:

Yes. W may still file an action for annulment of marriage.

Article 45 of the family code provides that a marriage may be annulled for any of the
following causes existing at the time of the marriage, to wit; that either party was afflicted
with a sexually transmissible disease found to be serious and appears to be incurable.
The cohabitation made by W after discovering the disease of the husband is of no moment
because STD as a ground for annulment of marriage is not subject to ratification by
continued cohabitation as husband and wife, thus, W may still file an annulment case.

52

X was born of the spouses H and W. From the time of his birth, X has been under the
care of his maternal grandparents. W left for the U.S. A. to work as a nurse. H filed a
petition in the Regional Trial Court for the care, custody and control of X. The maternal
grandparents contended that they are in a better position to take care of the child for they
have amply demonstrated their love and affection for X since his infancy and the best
interest of the child is of paramount importance. Who should be awarded the custody of
the child? Why?

Answer:

The custody of the child should be awarded to H. The latter has the exclusive parental
authority and custody over the child since W is absent because of her work as nurse
abroad.

Under the family code, in case of absence or death of either parent, the parent present shall
continue exercising parental authority.

Parental authority is the absolute right of parents to watch over the person of their
children. In fact our Supreme Court has had occasion to remark that when a children are
brought into the world due to intimate relations of their father and mother, the parents
have the tremendous responsibility of seeing that their children will grow to be useful men
and women.

REVISED ANSWER:

The custody of the child should be awarded to H. The latter has the exclusive parental
authority and custody over the child since W is absent because of her work as nurse abroad.

Under the Family Code, the father and mother shall jointly exercise parental authority over
their children. However, in case of absence or death of either parent, the parent present shall
continue exercising parental authority.

The surviving grandparent may exercise substitute parental authority in case of death,
absence or unsuitability of the parents.

53

Pedro and Marian got married on August 1, 1988 and begot two (2) children in the
name of A and B during their marriage. Marian died in 2003. In 2002, however Pedro and
Petra entered into a contract of marriage. In 2006, Pedro died. A and B filed a suit to
declare the nullity of marriage between Pedro and Petra. Petra filed a motion to dismiss
since A and B have no legal personality to file the suit and that there is no more marriage to
speak of since Pedro is already dead. DECIDE.

Answer:
The motion to dismiss filed by Petra should be granted. A petition for declaration of
absolute nullity of void marriage may be filed solely by husband and wife , except on (1)
Nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10-SC; and
(2) Marriages celebrated during the effectivity of the Civil Code.

Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of

Voidable Marriages, the petition for declaration of absolute nullity of marriage may not be
filed by any party outside of the marriage.

While A.M. No. 02-11-10-SC declares that a petition for declaration of absolute nullity of
marriage may be filed solely by the husband or the wife, it does not mean that the
compulsory or intestate heirs are without any recourse under the law. They can still
protect their successional right, for, as stated in the Rationale of the Rules on Annulment of
Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, compulsory or
intestate heirs can still question the validity of the marriage of the spouses, not in a
proceeding for declaration of nullity but upon the death of a spouse in a proceeding for the
settlement of the estate of the deceased spouse filed in the regular courts.(Juan de Dios
Carlos vs. Felicidad Sandoval et.al, G.R. No. G.R. No. 179922. December 16, 2008)

REVISED ANSWER:

The motion to dismiss filed by Petra should be granted. Under the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-
SCA) petition for declaration of absolute nullity of void marriage may be filed solely by
husband and wife , except on (1) nullity of marriage cases commenced before the effectivity ;
and (2) marriages celebrated during the effectivity of the Civil Code. Such petition may not be
filed by any party outside of the marriage.

However, the aforesaid stated rule declares that compulsory or intestate heirs can still
question the validity of the marriage of the spouses, not in a proceeding for declaration of
nullity but upon the death of a spouse in a proceeding for the settlement of the estate of the
deceased spouse filed in the regular courts.

54

W, X, Y and Z organized a general partnership with W and X as industrial partners

and Y and Z as capitalist partners. Y contributed P50,000.00 and Z contributed P20,000.00
to the common fund. By a unanimous vote of the partners, W and X were appointed
managing partners, without any specification of their respective powers and duties.

A applied for the position of Secretary and B applied for the position of Accountant of
the partnership.

The hiring of A was decided upon W and X, but was opposed by Y and Z.

The hiring of B was decided upon by W and Z, but was opposed by X and Y.

Who of the applicants should be hired by the partnership? Explain and give your
reasons.

Answer:
A should be hired as Secretary. The decision for the hiring of A prevails because it is an act
of administration which can be performed by the duly appointed managing partners, W
and X. B cannot be hired, because in case of a tie in the decision of the managing partner,
the deadlock must be decided by the partners owning the controlling interest. In this case,
the opposition of X and Y prevails because Y owns the controlling interest (Art. 1801, Civil
Code).

55

A and B are partners in buying and selling automobiles. A, by the partner’s

agreement, was authorized to BUY automobiles on a CASH basis, never on the
INSTALLMENT plan. One day A bought on CREDIT or on the INSTALLMENT PLAN a car
from X, a client. X did not know of A’s lack of authority. A’s purchase was made on behalf
and in the name of the partnership. Is the partnership bound?

Answer:

Yes, the act of A binds the partnership. Although A was not really authorized, still because
for “apparently carrying on in the usual way the business of the partnership”, A is implicitly
authorized and X did not know of A’s lack of authority.

56

Tomas, Rene and Jose entered into a partnership under the firm name “Manila
Lumber.” Subsequently, upon mutual agreement, Tomas withdrew from the partnership
and the partnership was dissolved. However, the remaining partners, Rene and Jose, did
not terminate the business of “Manila Lumber.” Instead of winding up the business of the
partnership and liquidating its assets, Rene and Jose continued the business in the name of
“Manila Lumber” apparently without objection from Tomas. The withdrawal of Tomas
from the partnership was not published in the newspapers. Could Tomas be held liable for
any obligation or indebtedness Rene and Jose might incur while doing business in the name
of “Manila Lumber” after his withdrawal from the partnership? Explain.

Answer:

Yes. Tomas can be held liable under the doctrine of estoppel. But as regards the parties
among themselves, only Rene and Jose are liable. Tomas cannot be held liable since there
was no proper notification or publication.

In the event that Tomas is made to pay the liability to third person, he has the right to seek
reimbursement from Rene and Jose (Articles 1837 to 1840; Goquiolay vs. Sycip, 9 SCRA
663).

57

At about 2:00 o’clock in the morning of September 11, 2006, while driving his Isuzu
Trooper, Argo Saladin rammed into a pile of earth consisting of street diggings at Ma.
Cristina St., Manila, which was then under repair by the city government of Manila. As a
result, Argo suffered bodily injuries while the vehicle sustained extensive damage, as it
turned turtle upon hitting the pile of earth.

When he recuperated, Argo instituted a complaint for damages against the City
Government of Manila and the City Engineer in the Regional Trial Court of Manila. During
the trial, Argo testified that:

1. He incurred medical expenses totaling P50,000.00 for the injuries sustained

by him, which were properly receipted;

2. the estimate damage of his vehicle amounted to P120,000.00, as testified to

by a representative of the repair shop where his vehicle was brought;

3. there were no lighting devices to warn the motorists of the diggings, which
was confirmed by the Police Report.

The City Engineer countered that the diggings were properly provided with
barricade and reflectorized paint with visible sticks before and behind it to warn passers-
by of the existing diggings. He attributed the incident to Argo’s lack of due care and
negligence in driving the vehicle.

(a) What is the proximate cause of the accident? Discuss with reason.

The negligence of the City Government of Manila and the City Engineer was the proximate
cause of the accident.

The provisions of Article 2189 of the New Civil Code capsulizes the responsibility of the city
government relative to the maintenance of roads and bridges since it exercises control and
supervision over the same. Failure of the city government to comply with the required
standard and statutory provision found in the subject article is tantamount to negligence
per se which renders the  City government liable for damages.

Here, the proximate cause of the accident was the negligence of the city government of
Manila in not putting a lighting device or a reflectorized barricade or sign which could have
served as an adequate warning to motorist especially during the thick of the night where
darkness is pervasive.

(b) Suppose Argo was able to recover actual damages, can he still recover moral
damages? How about exemplary damages?

Yes, Argo can still recover moral damages.

To award moral damages, a court must be satisfied with proof of the following requisites:

1. An injury whether physical, mental, or psychological clearly sustained by the claimant;

2. A culpable act or omission factually established;

3. A wrongful act or omission of the defendant as the proximate cause of the injury
sustained by the claimant; and

4. The award of damages predicated on any cases provided by law.

In this case, Argo actually sustained physical injuries. He actually incurred medical
expenses totaling 50,000.00 with receipt presented.
As to exemplary damages, Argo can still recover.

Under Article 2229 of the New Civil Code provides that exemplary damages may be
imposed by way of example or correction for the public good. The award of these damages
is meant to be a deterrent to socially deleterious action. Public Policy requires such
imposition to suppress wanton acts of offender. It must be emphasized that local
government and their employees are should be responsible not only in the maintenance of
roads and streets, but also for the safety of the public. Thus, they must secure construction
areas with adequate precautionary measures.

58

Spouses Toni and Sam are the owners of a burned-out building. Beside their building is
the sari-sari store of spouses Echo and Heart. Aware of the big cracks on their wall, spouses
Toni and Sam warned spouses Echo and Heart to vacate their store in view of its proximity
to the weakened wall. But spouses Echo and Heart ignored the warning. One evening in the
course of heavy rains, the wall collapsed and destroyed the store of spouses Echo and
Heart, which resulted in the injuries of the latter. When sued for damages, spouses Toni
and Sam interposed the defense that they had exercised the necessary precaution to
prevent the accident by informing earlier spouses Echo and Heart of the possible danger
when the wall collapse, as it did.

a) If you were the judge, how would you decide the case?

I would decide in favor of Spouses Echo and Heart.

Spouses Toni and Sam being the proprietor of a building or structure is responsible
for the damages resulting from its total or partial collapse, if it should be due to the lack of
necessary repairs.

b) Would you find spouses Echo and Heart liable for contributory negligence
considering that they had the last clear chance to avoid the accident if only they
heed to the warning?

Yes, spouses Echo and Heart are liable for contributory negligence.

Under Article 2179 of the New Civil Code provides when the plaintiff’s own negligence was
the immediate and proximate cause of his injury, he cannot recover damages. But if his
negligence was only contributory, the immediate and proximate cause of the injury being
the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.

However, the doctrine of last clear chance is not applicable in this case because it is only
applicable to a vehicular accident.

59

While gasoline was being hosed from a tank truck belonging to Petron Company, Inc.
into an underground storage belonging to Petron service station, a fire broke out spreading
to and burning several houses. The owners of these houses commenced an action for
damages against both the gasoline company and the operator of the service station, the
first as alleged owner and the second as agent in charge of operation. In the complaint, it
was alleged that the cause of the fire was due to the negligence of both the gasoline
company and the operator of the service station. Defendants gasoline company and service
station operator contend that there is no proof that they have been negligent. They argue
that even if it can be presumed that the operator of the service station and his employees
were negligent, as far as the gasoline company is concerned, there can be no liability
because the operator of the station is not an agent of the company but an independent
contractor.

(a) Who between the gasoline company and the operator of the service station
should be held liable for damages?

Both Petron Company, Inc. and Petron Service Station should be held liable for damages.

The doctrine of res ipsa loquitor is applicable in this case, so as to presume negligence on
the part of the gasoline company and service station. Gasoline is a highly combustible
material, in the storage and sale of which extreme care must be taken. Fire is not
considered a fortuitous event as it arises almost invariably from some act of man. When the
fire occurred  therein and spread to and burned the neighboring houses, it is presumed that
the gasoline company and its service station are considered negligent. They are required to
observe extreme care that would satisfy the standard of due diligence under ordinary
circumstances.

Also, the negligence of the company and the service station therefore, was not only with
respect to the cause of the fire but also with respect to the spread thereof to the
neighboring houses.

(b) Is the operator an independent contractor or an agent of the gasoline company?

Petron Service Station is an agent of Petron Company Inc. because Petron Company Inc.,
secured the services of the operator and has control over the operation in the management
of the station.

60

An L-300 van owned by Sibuko and driven by Egoy, while negotiating a down hill slope
of a city road, suddenly gained speed beyond the authorized limit in the area, and bumped
a car in front of it, causing severe damage to the car and serious injuries to its passengers.
Sibuko was not in the car at the time of the incident. The car owner and the injured
passengers sued Sibuko and Egoy for damages caused by Egoy’s negligence. In their
defense, Egoy claims that the downhill slope caused the van to gain speed and when he
stepped on the brakes to check the acceleration, the brakes locked, causing the van to go
even faster and eventually hit the car in front of it. Sibuko and Egoy contend that the
sudden malfunction of the van’s brake system is a fortuitous event, hence, they are exempt
from liability.

(a) Is the contention tenable?

 No, mechanical defects of a motor vehicle do not constitute fortuitous event, since the
presence of such defects would have been readily detected by diligent maintenance check.
The failure to maintain the vehicle’s roadworthiness constitutes negligence.

(b) Does the presence or absence of Sibuko inside the van causing damage to a
third party affect his liability for Egoy’s negligence?

Yes. In motor vehicle mishaps, the owner is solidarily liable with his driver, if
the the owner who was in the vehicle, could have, by use of due diligence, prevented the
misfortune. However, if the owner of vehicle was not in the vehicle during the accident the
provisions of Article 2180 of the New Civil Code applies.

61

On her third month of pregnancy, Rosemarie, married to Boy, for reasons known only to
her, and without informing Boy, went to the clinic of X, a known abortionist, who, for a fee,
removed and expelled the fetus from her womb. Boy learned of the abortion six (6) months
later.

Availing of that portion of Section 12 of Article II of the 1987 Constitution which reads:

“The State xxx shall equally protect the life of the mother and the life of the
unborn from conception. xxx”

which he claims confers a civil personality on the unborn from the moment of conception,
Boy filed a case for damages against the abortionist, praying therein that the latter be
ordered to pay him: (a) P30,000.00 as indemnity for the death of the fetus, (b) P100,000.00
as moral damages for the mental anguish and anxiety he suffered, (c) P50,000.00 as
exemplary damages, (d) P20,000.00 as nominal damages, and (e) P25,000.00 as attorney’s
fees.

(a) Is Boy’s interpretation of the above constitutional provision correct?

Boy’s interpretation of the above constitutional provision is not correct. The said
constitutional provision does not confer civil personality; it merely aims to
prevent the Legislature from passing a measure that would allow abortion. Boy
cannot be indemnified for the death of the fetus because the same cannot be
considered death of a person. The fetus never acquired personality because it
was never born.

(b) Is Boy entitled to the foregoing damages and attorney’s fees?

As a parent, Boy may be awarded moral damages for the illegal arrest of the
normal development of the fetus, on account of distress and anguish attendant to
its loss, and the disappointment of his parental expectations. Boy may also be
awarded exemplary damages and attorney’s fees.

(c) Should exemplary damages be proved?

Yes. The claimant’s right to exemplary damages must be established.

 (d) May actual damages be also recovered? If so, what facts should be alleged and
proved?

Actual damages may not be recovered. In seeking recovery for actual damages,
it is necessary that the claimant produce competent proof or the best evidence
obtainable such as receipts to justify an award therefor.

62

A 3-year old child was bitten by a dog in the possession of the petitioners. She
developed hybdrophobia, a symptom of rabies and died of asphyxia broncho-pneumonia, a
complication of rabies. Can the petitioners be held liable?

Answer:

Yes, petitioners may be held liable. Under the law, the possessor of an animal or whoever
may make use of the same is responsible for the damage which it may cause.

63

Lasengo, an engineer while walking along the streets of the City of Manila fell into an
open manhole causing serious physical injuries. On the date of the accident it was raining
heavily and Lasengo was drunk. Sued for damages, the City of Manila interposed the
defense that the proximate cause of the injury was the negligence of Lasengo who was
intoxicated at the time of the accident. DECIDE.

Answer:

The City of Manila cannot evade responsibility for the injuries sustained by Lasengo. In a
similar case, the Supreme Court held that since the city engineer exercises control or
supervision over the public works, the liability of the city to the injured person, in this case,
Lasengo, under the Civil Code, is clear. That the proximate cause of the injury was the
negligence of Lasengo who was intoxicated at the time of the accident may only prevent the
City of Manila from paying moral damages to Lasengo, but not from paying actual damages.

64

As the result of a collision between a public service passenger bus and a cargo truck
owned by D, X sustained physical injuries and Y died. Both X and Y were passengers of the
bus. Both drivers were at fault, and so X and Z, the only heir and legitimate child of the
deceased Y, sued the owners of both vehicles.

a) May the owner of the bus raise the defense of having exercised the diligence of a
good father of a family?
 The owner of the bus may not raise the defense of having exercised the diligence
of a good father of a family. To overcome the presumption of fault or negligence,
the owner of the bus must prove that he observed extraordinary diligence.

b) May D raise the same defense?

D may raise the defense that he exercised the diligence of a good father of a
family, particularly in the employment of his driver.

65

Romano was bumped by a minivan owned by the Solomon School of Practical Arts
(SSPA). The minivan was driven by Peter, a student assistant whose assignment was to
clean the school passageways daily one hour before and one hour after regular classes, in
exchange for free tuition. Peter was able to drive the school vehicle after persuading the
regular driver, Paul, to turn over the wheel to him (Peter). Romano suffered serious
physical injuries. The accident happened at night when only one headlight of the vehicle
was functioning and Peter only had a student driver’s permit.

As a consequence, Peter was convicted in the criminal case. Thereafter, Romano sued
for damages against Peter and SSPA.

(a) Will the action for damages against Peter and SSPA prosper?

Yes, the action for damages will prosper but only with  respect to Peter and not with SSPA.  

Under the law on quasi-delict, employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry. Here, the said
accident occurred during the time when Peter was not performing his assigned tasks. With
respect to SSPA, it is not liable for the acts of Peter since the latter was not an employee of
the former.

Hence, the action for damages would only prosper against Peter. 

(b) Will your answer be the same if, Paul, the regular driver, was impleaded as party
defendant for allowing Peter to drive the minivan without a regular driver’s
license.

Yes, I would maintain the same answer because the incident did not occur while Paul the
employee was in the performance of his duty as such employee. Although, the said
incident occurred at night time, and in any case, there was no indication in the problem
that he was performing his duties as a driver.

in order to enforce the subsidiary liability of employers under Art. 103 of the
Revised Penal Code is to bring a separate civil action against him. Should this contention of
E be sustained?
Answer:

No, the contention of E should be overruled.

The Supreme Court has held that, the conviction of the employee is a condition sine qua
non for the subsidiary liabilty of the employer to attach, provided that the proof of
insolvency must be shown.  Here, since the insolvency of D cannot be denied.

Hence, the contention of E should be denied.