Philippine Bar Exams Reviewer for Civil Law Persons and Family Relations (Part 1)

General Considerations – 39 Questions and Answers

#1. When do laws in the Philippines take effect?

Laws in the Philippines take effect after fifteen (15) days following the
completion of their publication either in the Official Gazette or in a
newspaper of general circulation in the Philippines, unless it is otherwise
provided.

#2. What is a retroactive law?

It is one intended to affect transactions which occurred, or rights which

accrued, before it becomes operative, and which ascribes to them effects
not inherent in their nature, in view of the law in force at the time of their
occurrence.

#3. What are the exceptions to the rule that laws shall have no retroactive
effect? The following are the exceptions to the rule that laws shall have no
retroactive effect:

1. When the law itself expressly provides for its retroactivity;

2. When the law is penal insofar as it favors the accused; provided that the
accused is not a habitual delinquent;
3. When the law is procedural so long as it does not affect or change vested
rights;
4. When the law creates new substantive rights;
5. When the law is curative in character in the sense that the purpose of its
enactment is to cure defects or imperfections in judicial or administrative
proceedings; and
6. When the law is interpretative of other laws.

#4. What are mandatory laws?

Laws the violations of which, tenders the act or proceeding illegal and void.

#5. What are prohibitory laws?

Laws which, if omitted, renders the proceeding or acts relating to it
generally illegal or void.

#6. What are the exceptions to the rule that an act executed against
provisions of mandatory or prohibitory laws shall be void?

The following are the exceptions:

1. Where the law itself authorizes its validity;

2. Where the law makes the act valid but punishes the violator;
3. Where the law makes the act only voidable; and
4. Where the law declares the nullity of an act but recognizes its effects as
legally existing.

#7. What is a waiver?

It is the intentional relinquishment of a known right or such conduct as

warrants an inference of
relinquishment of such right.

#8. What is a right?

The power or privilege given to one person and, as a rule, is demandable of

another. It denotes an interest or title in an object or property.

#9. Rights may be waived. In what cases may waiver be prohibited and
declared null and void? Waiver is prohibited and may be declared dull and
void when:

1. It is contrary to law, public order, public policy, morals and good customs;
2. When prejudicial to a third person with a right recognized by law.

#10. What are some instances where waiver is considered void? Waiver is
considered void in such instances such are:

1. Waiver of future support;

2. Waiver of political rights;
 3. Waiver of future inheritance especially if the waiver intended to prejudice
creditors.

#11. What are the requisites of a valid waiver?

The following are the requisites of a valid waiver:

1. Full capacity to make the waiver;

2. Waiver must be unequivocal;
3. Right must exist at the time of the waiver;
4. It must not be contrary to law, public policy, morals or good customs;
5. It must be prejudicial to a third person with a right recognized by law; and
6. When formalities are required, the same must be complied with.

#12. What is a repeal of a law?

It is the legislative act of abrogating through a subsequent law the effects

of a previous statute or portions thereof.

#13. What are the types of repeal? Define each.

1. Express Repeal – One which is literally declared by a new law, either in

specific terms, as where particular laws and provisions are named,
identified, and declared to be repealed, or in general terms.

2. Implied Repeal – It takes place when a new law contains provisions

contrary to or inconsistent with those of a former law without expressly
repealing them.

#14. What are the requisites of an implied repeal? The following are the
requisites of an implied repeal:
 1. The laws cover the same subject matter; and
2. The latter is repugnant to the other.

#15. What is private international law?

It is a part of municipal law of a state which directs its courts and

administrative agencies when confronted with a legal problem involving
foreign element, whether or not they should apply the foreign law.

#16. What is conflict of laws?

It is the inconsistency or difference between the laws of different states or

countries, arising in the case of persons who have acquired rights, incurred
obligations, injuries or damages, or made contracts, within the territory of
two or more jurisdictions.

#17. What are the elements of conflicts of laws? The following are the
elements of conflict of laws:

1. Legal problem or case involving foreign element; and

2. Foreign element – factual situation cutting across territorial lines, affected by
diverse laws of two or more states.

Primary function is to determine whether the law or judgments of other

state/s will govern and if so the extent if its recognition or application in the
forum

#18. What are the different conflict-of-law rules found in the New Civil Code
and the Family Code which sanction the operation of either Philippine laws
upon Filipinos residing or sojourning abroad and foreign laws upon
foreigners residing or sojourning in the Philippines?

They are the following:

1. With respect to penal laws and laws of public security – Although penal
laws are obligatory upon who live or sojourn in Philippine territory,
nevertheless, this rule is subject to the principles of public international law
and to treaty stipulations.
 2. With respect to laws relating to Family Rights and Duties or to the Status,
Condition and Legal Capacity of Persons – As a general rule, nationality rule
applies regardless of their place of residence.However, if a divorce is validly
obtained abroad by alien spouse capacitating him or her to remarry, the
Fiipino spouse shall have the capacity to remarry under Philippine law.
3. With respect to Laws on Real and Personal Property – The doctrine of Lex
Rei Sitae shall govern which provides that the law of the country where the
property is situated shall govern property transactions.

The following are its exceptions:

1. Capacity to succeed;
2. Intrinsic Validity of testamentary provisions;
3. Amount of successional rights; and
4. Order of succession.

4. With respect to Laws on Forms and Solemnities – The doctrine of Lex

Loci Celebrationis shall govern which provides that forms and solemnities
of contracts, wills and other public instruments (pertaining to extrinsic
validity) shall be governed by the laws of the country in which they are
executed.

The following are its exceptions:

1. Marriage between Filipinos validly solemnized abroad shall be void when

under Philippine laws, such marriage is void; and
2. Intrinsic Validity of Contracts which shall be determined by the following
rules:
a. The law stipulated by the parties shall be applied;
b. In default thereof, and the parties are of the same nationality, their
national law shall be applied;
c. If the parties are not of the same nationalities, the law of the place of
the perfection of the obligation shall govern its fulfillment; or
d. If the above places are not specified and they cannot be deduced from
the nature and circumstances of the obligation, then the law of the
passive subject shall apply.
#19. What are the rules on personal law? Distinguished.

1. Domiciliary Rule where the basis of determining personal law of an

individual is his domicile; and
2. Nationality Rule where the basis of determining personal law is his
citizenship.

#20. What are the rules to follow when the court is confronted with a case
involving a foreign element? If the court is faced with a case involving a
foreign element, it should first determine:

1. Whether it has jurisdiction over the case

2. If it has no jurisdiction, it should be dismissed on that ground;
3. If it has jurisdiction, the court will determine whether it should assume
jurisdiction, or it should dismiss the case on the ground of forum non-
convenience;
4. Once the court has determined it has jurisdiction over the case, it will next
determine whether to apply the internal law of the forum or apply the proper
foreign law.

#21. What is Forum Non Conveniens?

It is the refusal to assume jurisdiction because it would prove
inconvenience for the forum. #22. When can internal or domestic law be
applied?

Internal or domestic law can be applied when:

1. Law of the forum expressly so provides in its conflicts rule;

2. Proper foreign law has not been properly pleaded and proved;
3. Case involves any of the exceptions to the application of the foreign law.

#23. What is the Doctrine of Processual Presumption of law?

When the proper foreign law has not been properly proved, the court of the
forum may presume that said foreign law is the same as the law of the
forum that said court can now apply.

It applies when the foreign law is not alleged or if alleged, it is not proved.
#24. What is renvoi doctrine?

It literally means referring back. It occurs when a citizen of another country

dies as a domiciliary of another country.

Where the conflict rules of the forum refer to a foreign law, and the latter
refers it back to the internal law, the law of the forum shall apply.

#25. What will the Courts do, if it is confronted with a case with a “Renvoi”
problem? The Court has the following options:

1. Reject the renvoi – If the conflict rules of the forum refer later the case to the
law of another state, it is deemed to mean only the internal law of that
state.Thus, the court will apply the foreign law.
2. Accept the renvoi – If the conflict rules of the forum refer the case to the law
of another state, it is deemed to include the totality of the foreign law
(internal law and conflict of law rules).Thus the court will recognize the
referral back and apply the local law.
3. Follow the Theory of Desisment – also referred to as Mutual Disclaimer of
Jurisdiction Theory.The forum court upon reference to another state’s law
sees that such law is limited in application to its own nationals domiciled in
its territory and has no provision for application to nationals domiciled
outside of the territory.Hence the local court will apply the local law.

NOTE: This has the same result as the acceptance of the renvoi doctrine but the
process used by the forum court is to desist applying the foreign law.

D. Make use of the Foreign Court Theory – Forum acourt assumes the same position
that the foreign court would take if the case is litigated in the foreign state.

#26. What is transmission theory?

It provides that if the foreign law refers it to a third country, the said
country’s law shall govern.
#27. What is the principle of abuse of rights?
The principle of abuse of rights departs from the classical theory that “he
who uses a right injures no one.”

The modern tendency is to depart from the classical and traditional theory,
and to grant indemnity for damages in cases where there is an abuse of
rights, even when the act is not illicit.

#28. Is abuse of rights actionable? Explain. Yes, abuse of rights is

actionable.

This is clear from the provision of Art. 19 of the NCC, which declares that
“every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and
good faith,” and from the provision of Art. 20, which declares that “every
person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.”

#29. What elements of an abuse of right must be present in order that it will
be actionable? The following elements must concur:

1. There is a legal right or duty;

2. Which is exercised in bad faith; and
3. For the sole intent of prejudicing or injuring another.

#30. What is the doctrine of Volenti Non Fit Injuria?

It refers to self-inflicted injuries or to the consent to injury which precludes

the recovery of damages by one who has knowingly and voluntarily
exposed himself to danger, even if he is not negligent in doing so.

#31. What is the doctrine of Damnum Absque Injuria?

It means damage without injury. One who merely exercises one’s rights
does no actionable injury and cannot be held liable for damages.

#32. What is the difference between injury and damage?

Injury is the illegal invasion of a legal right; damage is the loss, hurt, or
harm which results from the injury; and damages are the recompense or
compensation awarded for the damage suffered.

There can be damage without injury in those instances in which the loss or
harm was not the result of a violation of a legal duty. In such cases, the
consequences must be borne by the injured person alone.

#33. What is the principle of Contra Bonus Mores?

Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the
latter for the damage.

#34. What are the elements of an action under the principle of Contra
Bonus Mores? The following are the elements:

A. There is an act which is legal;

2. Such act is contrary to morals, good customs, public order or policy;

3. It is done with intent to injure.

#35. What is Accion In Rem Verso?

It is the remedy for unjust enrichment.
It is an action for recovery of what has been paid or delivered without just
cause or legal ground.

If a person acquires or comes into possession of something at the expense

of another without just or legal ground through an act or of performance by
another or any other means has the obligation to return the same.

#36. What are the elements in order to enforce an Accion In Rem Verso?
The following are the requisites:

1. The defendant has been enriched;

2. The plaintiff has suffered a loss;
3. The enrichment of the defendant is without just or legal ground; and
 4. The plaintiff has no other action based on contract, quasi-contract, crime or
quasi-delict.

#37. What is a prejudicial question?

A prejudicial question is a question which arises in a case, the resolution of
which is a logical antecedent

of the issue involved in said case, and the cognizance of which pertains to
another tribunal. #38. What are the elements of a prejudicial question?

They are: first, that it must be determinative of the guilt or innocence of the
accused in the criminal case; and second, jurisdiction to try said question
must be lodged in another tribunal.

#39. What is its effect upon a criminal action?

Its effect upon a criminal case is to suspend it if one has already been
commenced. (Art. 36, NCC.) This is, of course, the reverse of the ordinary
rule of procedure.

The reason for this is that the resolution of the question is determinative of
the guilt or innocence of the accused in the criminal case.

Philippine Bar Exams Reviewer for Civil Law – Persons and Family Relations Part 2
Natural and Juridical Persons 15 Questions and Answers (with Subquestions)

Question #1 Define persons.

In its juridical sense, a “person” may be defined as a being, physical or

moral, real or juridical and legal, which is susceptible to obligations, or of
being the subject of legal relations.

Question #2

How are persons classified? Distinguish one from the other.

Persons are classified into natural and juridical persons.

The two may be distinguished from each other as follows:

(1) A natural person or human being has physical existence, whereas a

juridical person exists only in contemplation of law;

(2) A natural person is the product of procreation, whereas a juridical

person is the product of legal fiction.

Question #3
What is meant by “juridical capacity” and “capacity to act”? Distinguish one
from the other.

“Juridical capacity” is the fitness to be the subject of legal relations, while

“capacity to act” is the power to do acts with legal effect.

They may be distinguished from each other as follows:

(1) Juridical capacity is inherent in every natural person, and therefore, is

not acquired, whereas capacity to act is not, and therefore, is acquired.

(2) Juridical capacity is lost only through death, whereas capacity to act
may be lost through other means or circumstances.

(3) Juridical capacity cannot be limited or restricted, whereas capacity to

act can be limited or restricted by certain circumstances.

(4) Juridical capacity can exist without capacity to act, but the existence of
the latter always implies that of the former.

Question #4

What are the circumstances which modify or limit capacity to act?

The following circumstances, among others, modify or limit the capacity to
act:

Age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality,

family relations, alienage, absence, insolvency and trusteeship.
The consequences of these circumstances are governed in the Civil Code,
other codes, the rules of court, and in special laws.

Capacity to act is not limited on account of religious belief or political

opinion.

Question #5

What is meant by status?

The status of a person is the legal condition or class to which one belongs
in society.

Question #6

What is meant by civil personality?

Civil personality is merely the external manifestation of either juridical
capacity or capacity to act. Consequently, it may be defined as the aptitude
of being the subject of rights and obligations.

Question #7
When does civil personality begin in natural persons?

Article 5 of P.D. No. 603, which declares that the civil personality of the
child shall commence from the time of his conception, for all poses
favorable to him, subject to the requirements of Article 41 of the Civil Code
of the Philippines.

For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother’s womb.

However, if the fetus had an intra-uterine life of less than 7 months, it is not
deemed born if it dies within 24 hours after its complete delivery from the
maternal womb.
Question #8
How is civil personality extinguished?
Death extinguishes civil personality.
However, the rights and obligations of the deceased are not necessarily
extinguished by his death.

Question #9

What is the effect if there is a doubt as to which of two persons, who are
called to succeed each other, died first?

If there is a doubt, as between two or more persons who are called to

succeed each other, as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same; in the absence of
proof, it is presumed that they died at the same time and there shall be no
transmission of rights from one to the other.

Question #10
What are the presumptions on survivorship under the Revised Rules of
Court?

The presumptions on survivorship under the Revised Rules of Court are

those provided for in Rule 131, Section 3.

They are as follows:

That except for purposes of succession, when two persons perish in the
same calamity, such as wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances from which it can
be inferred, the survivorship is determined from the probabilities resulting
from the strength and the age of the sexes, according to the following
rules:

1. If both were under the age of fifteen years, the older is deemed to have
survived;
2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to
have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male
is deemed to have survived, if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages,
the latter is deemed to have survived.

Question #11

When is the presumption given in Article 43 of the Civil Code of the

Philippines applicable? How about the presumptions on survivorship?

The presumption given in Article 43 of the Civil Code of the Philippines is

applicable when the following requisites are present:

First, the parties are heirs to one another; Second, there is no proof as to
who died first; and

Third, there is doubt as to who died first.

The presumptions on survivorship, on the other hand, is applicable if the

following requisites are present:

First, there are two or more persons;

Second, they perish in the same calamity;

Third, it is not shown who died first; and

Fourth, there are no particular circumstances from which it can be inferred

that one died ahead of the other.
Question #12

How are juridical persons classified?

The following are the different kinds of Juridical Persons:

1. The State and its political subdivisions;

2. Other corporations, institutions and entities for public interest or

purpose, created by law; their personality begins as soon as they have been
constituted according to law;

3. Corporations, partnerships and associations for private interest or

purpose to which the law grants a juridical personality, separate and
distinct from that of each shareholder, partner or member;

4. The Roman Catholic Church being considered as one because of

tradition; 5. The estate of a deceased person.

Question #13
What is the capacity of a juridical person?

A juridical person can acquire and possess property of all kinds as well as
incur obligations and bring civil or criminal actions, provided that they are in
conformity with the laws and regulations of their organization.

Question #14
Who are citizens of the Philippines under the new Constitution?
The following are citizens of the Philippines in accordance with the new
Constitution:
(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law.

Question #15

For the exercise of civil rights and the fulfillment of civil obligations, what is
the domicile of natural and juridical persons?

For the exercise of civil rights and the fulfillment of civil obligations, the
domicile of natural persons is the place of habitual residence.

While the domicile of juridical persons is the place fixed by the law creating
or recognizing the juridical person; and in the absence thereof, the place
where their legal representation is established or where they exercise their
principal functions.