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READING NO. 1 OF 5

BLD: PERSONS AND FAMILY RELATIONS

1

Ang BLD PERSONS AND FAMILY RELATIONS na may 228 na pahina ay

dinesenyo upang umangkop sa kakayanan ng mga ordinaryong tao (layman) at mga
pasimulang mag-aaral ng batas. Higit sa lahat, ang BLDTP ay may adhikaing tulungan
ang mga “nth” time bar examinees na mapagtagumpayan na ang hamon ng
napakahirap bar examination sa pamamagitan ng pag-gamit ng mga estratehiyang
pang-elementarya at highschool na pagtuturo hanggang sila ay magkaroon ng sariling
technique na kanilang magagamit sa kanilang patuloy pag-aaral.

BLD TRAINING MATERIALS FOR BAR TAKERS

PERSONS AND FAMILY RELATIONS
2023 EDITION MARCH 9, 2023
MANILA, PHILIPPINES
TABLE OF CONTENTS

DOCTRINES IN CIVIL LAW

WHEN LAWS TAKE EFFECT …3
LEGAL EFFECT OF IGNORANCE OF THE LAW…4
WAIVER OF RIGHTS…4
JUDICIAL DECISIONS AS PART OF LEGAL SYSTEM…5
DUTY OF THE COURT TO RENDER JUDGMENT…6
PRESUMPTION IN CASE OF DOUBTS IN THE INTERPETATION OF LAWS…7
NATIONALITY PRINCIPLE/LEX NATIONALI…7
LEX REI SITAE…8
LEX LOCI CELEBRATIONIS…9
OBSERVANCE OF HONESTY AND GOOD FAITH…20
INDEMNIFICATION FOR ILLEGAL ACTS…20
ACTIONABLE ACTS…21
UNJUST ENRICHMENT…24
RIGHT TO PRIVACY…25
INDEPENDENT CIVIL ACTION…26
IMPAIRMENT OF RIGHTS AND LIBERTIES…26
PREJUDICIAL QUESTION IN CIVIL LAW…27

THE LAW ON PERSONS

JURIDICAL CAPACITY VS CAPACITY TO ACT…27
WHEN CIVIL PERSONALITY BEGINS IN NATURAL PERSONS…28
WHEN A CHILD IS CONDSIDERED BORN…28
PRESUMPTION OF SURVIVORSHIP…31
PRESUMPTION OF DEATH – ORDINARY ABSENCE…31
PRESUMPTION OF DEATH – QUALIFIED OR EXTRAORDINARY ABSENCE…31

OTHER CIVIL LAW CONCEPTS

CIVIL LAW SYSTEMS VS. COMMONLAW SYSTEM…33
RIGHT OF FIRST REFUSAL…33
JOINT VENTURE…34
PRESUMPTION OF SURVIVAL IN RULES OF COURT…35
CONFLICTS OF LAWS…35

FAMILY CODE
VOID MARRIAGES…42
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PSYCHOLOGICAL INCAPACITY…73
ARTICLE 40…79
VOIDABLE MARRIAGE…84
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE…89
TERMINABLE MARRIAGE…120 2
FINAL JUDGMENT IN MARRIAGES DECLARED AB INITIO OR ANNULLED…136
MARRIAGE SOLEMNIZED/DIVORCE OBTAINED ABROAD…138
LEGAL SEPARATION…151
SEPARATION OF THE PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON
PROPERTY BY ONE SPOUSE… 156
VALID MARRIAGE…159
RIGTHS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE…163
THE FAMILY…187
PATERNITY AND FILIATION…177
SUPPORT…196
PARENTAL AUTHORITY…199
WHAT IS VESTED RIGHT? …208

ADOPTION: Republic Act 11642

EFFECTS OF ADOPTION…212

OTHER RELATED LAWS

REPUBLIC ACT NO. 9048…215
PD NO. 603: THE CHILD AND YOUTH WELFARE CODE…216
RA 7610…216
AM NO 02-11-10 SC…217

2020-21 BQA CIVIL LAW PRACTICAL EXERCISES…218

2020 BAR QUESTIONS AND ANSWERS…220
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Part I

DOCTRINES IN CIVIL LAW

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Article 1. This Act shall be known as the “Civil Code of the Philippines.”

Effectivity of Civil Code (Republic Act No. 386)

According to several cases decided by the Supreme Court, the date of effectivity of the Civil Code
of the Philippines was August 30,1950.2 However, this date was exactly one year alter the Official
Gazette publishing the Code was released for “circulation,” the said respect to the effective date seems to
be contrary to the provisions the Civil Code itself which states that “[t]his Code shall take effect one year
after such publication,” not after circulation.

WHEN LAWS TAKE EFFECT

Art. 2. Laws shall take effect after fifteen 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. (As amended by E.0.200)

EXCEPTION: “unless otherwise provided by the law”. This refers to the date of effectivity and not
to the requirement of publication itself, which cannot in any event be omitted. Publication is
indispensable in every case, but the legislature may in its discretion provide that the usual 15-daY
period shall be (shortened?) or extended.

(Tanada v. Tuvera, 146 SCRA 446)

(Umali vs. Estanislao, 209 SCRA 446)

After the publication, then nagkaroon ng addendum. The addendum is unenforceable unless it
has been published.

JURISPRUDENCE

X filed his Certificate of Candidacy for membership as board director of an electric cooperative.
The screening committee resolved to disqualify X because his spouse was an incumbent member of the
Sangguniang Bayan. Based on the Electric Cooperative Election Code [ECEC] promulgated by National
Electrification Administration (NEA), a candidate whose spouse occupies an elective government position
higher than Barangay Captain is prohibited to run as director of an electric cooperative. X then filed a
Petition for Prohibition, and impleaded NEA as indispensable party. X averred that the ECEC was null
and void because it had not been published. According to the cooperative, NEA they complied with the
requirements by filing the code with the University of the Philippines Law Crater. Is the ECEC void?

Yes. The ECEC was null and void. While the cooperative complied with the requirements of filing
the code with the University of the Philippines Law Center, there is no proof of publication in the Official
Gazette nor in a newspaper of general circulation. Without compliance with the requirement of
publication, the rules and regulations contained in the ECEC cannot be enforced and implemented.
Article 2 of the New Civil Code provides that laws shall take effect after fifteen (15) days following the
completion of their publication in the Official Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided.

1990 BAR EXAMINATION

After a devastating storm causing widespread destruction in four Central Luzon provinces, the
executive aand legislative branches of the government agreed to enact a special Jaw appropriating P1
billion for purposes of relief and rehabilitation for the provinces. In view of the urgent nature of the
legislative enactment, it is provided in its effectivity clause that it shall take effect upon approval and
after completion of publication in the Official Gazette and a newspaper of general circulation in
the Philippines. The law was passed by the Congress on July 1. 1990, signed into law by the President
on July 3. 1990, and published in such newspaper of general circulation on July 7, 1990 and in the
Official Gazette on July 10. 1990. [a] As to the publication of said legislative enactment, is there
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sufficient observance or compliance with the requirements for a valid publication? Explain your answer.
[b] When did the law take effect? Explain your answer. [c] Can the executive branch start releasing and
disbursing funds appropriated by the said law the day following its approval? Explain your answer.

[a] Yes, there is sufficient compliance. The law itself prescribes the requisites of publication for its 4
effectivity and all requisites have been complied with. (Article 2, Civil Code)

[b] The law become effective on July 10, 1990 after compliance with all the conditions for effectivity and
the last condition was complied with on July 10. 1990. Hence, the law became effective on that date.

[c] No. It was not yet effective when it was approved by Congress on July 1,1990 and approved by the
President on July 3,1990. The other requisites for its effectivity were not yet complete at the time such
as the completion of publication.

LEGAL EFFECT OF IGNORANCE OF THE LAW

Art. 3. Ignorance of the law excuses no one from compliance therewith.

IGNORANCE OF THE LAW

1. Does not excuse one from the legal consequences of his conduct.

2. This refers only to mistakes with regard to the existence of the law.

IGNORANCE OR MISTAKE OF FACT

(Art. 3 RPC, Art. 1390, CC, Art.526 CC)

1. Constitutes an excuse and is a legal defense.

2. May vitiate consent in a contract and makes it voidable.

3. Eliminates criminal intent as long as there is no negligence.

4. Mistake upon a doubtful or difficult question of law may be the basis of good faith or may
render a contract voidable.

Ignorance of the law – X sells shabu sachet and Y pays for the shabu. The contract is void for both. They
cannot demand return of what has been exchanged.

Ignorance of facts – X sells shabu and Y pays for it he thought to be “tawas”. The contract is valid for Y.
He can ask for the return of the money he paid for. But X cannot because the conract is void for him. He
cannot ask for the return of the shabu. X can be held criminally liable but not Y for he thought it was
“tawas” he paid for. If he had known it were shabu, he would not have given his consent to pay for it.
Hence, his consent is vitiated.

1996 BAR EXAMINATION

Is there any difference In their legal effect between Ignorance of the law and ignorance or mistake of
fact?

Yes, there is a difference. While Ignorance of the law is not an excuse for not complying with it.
Ignorance of fact eliminates criminal intent as long as there is no negligence (Art, NCC). In addition,
mistake on a doubtful or difficult question of lawmay be the basis of good faith (Art. 526, NCC). Mistake
of fact may, furthermore, vitiate consent in a contract and make it voidable (Art. 1390. NCC). – UPLC

WAIVER OF RIGHTS

Art. 6. Rights may be waived, unless the waiver is contrary to Jaw, public order, public policy,
morals, or good customs or prejudicial to a third person with a right recognized by law.

JURISPRUDENCE
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WHILE COMPROMISE AGREEMENTS ARE GENERALLY FAVORED BY THE COURTS, IT MUST BE

PROVED THAT THEY WERE VOLUNTARILY, FREELY, AND INTELLIGENTLY ENTERED INTO BY
THE PARTIES

Hapilan vs. Sps. Lagradilla and Blader, GR NO. 170004, January 13, 2016 5

X had monetary obligation with Y. The latter issued checks which bounced for lack of funds. He,
then, filed an action for sum of money. To cover up the loan, Y promised to convey his house to X which
was later fraudulently sold W. It was learned that Y has plans to depart from the Philippines with intent
to to defraud his creditors. One time, X was approached by Y and he was enticed to enter into a
compromise agreement. And due to financial constraints, he accepted a monetary amount and signed a
quick claim or waiver. At that moment, he was not aware of the judgment of CA in his favor. He said
that he felt somehow deprive of his rights when Y willfully failed to disclose to him about the favorable
judgment and taking due advantage of her counsel’s absence. Can the waiver and ammicable
settlement modify the CA judgment?

No. Both documents are invalid. The waiver cannot cover the validity of the sale of the house
and lot to W since the property is neither a right nor a benefit X is entitled to. The allegations of X cast
doubt on whether he fully understood the terms of the Amicable Settlement when he signed it. He
further argued that he did not fully comprehend the CA Decision in his favor. Thus, it may be
reasonably inferred that X did not give consent to the Amicable Settlement with Y.

Waiver is defined as “a voluntary and intentional relinquishment or abandonment of a known

existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would
have enjoyed. While compromise agreements are generally favored and encouraged by the courts, it
must be proved that they were voluntarily, freely, and intelligently entered into by the parties, who had
full knowledge of the judgment.

2014 BAR EXAMINATION

Mabuhay Elementary School organized a field trip for its Grade VI students in Fort Santiago,
Manila Zoo, and Star City. To be able to join, the parents of the students had to sign a piece of paper
that reads as follows:

“I allow my child (name of student), Grade – Section, to join the school’s field trip on February 14,
2014.1 will not file any claim against the school, administrator or teacher in case something
happens to my child during the trip.

Joey, a 7-year-old student of Mabuhay Elementary School was bitten by a snake while the
group was touring Manila Zoo. The parents of Joey sued the school for damages. The school, as a
defense, presented the waiver signed by Joey’s parents. Was there a valid waiver of right to sue the
school? Why?

No, there was no valid waiver of the right to sue the school. Under Article 6 of the Civil Code -
rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a person with a right recognized by law. Here, the second paragraph of the
waiver prohibiting the parent to file any claim against the school, administrator or teacher in case
something happens to the child during the trip is against public policy because it removes liability from
said school, administrator, or teacher, and thus, removing the responsibility imposed on them by Article
218 of the Family Code. Hence, the waiver is void.

JUDICIAL DECISIONS AS PART OF LEGAL SYSTEM

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines.

Only the decisions of the Supreme Court establish jurisprudence or doctrines in this
jurisdiction, thus decisions of subordinate courts are only persuasive in nature and can have no
mandatory effect. However , this rule does not militate against the fact that a conclusion or
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pronouncement of the Court of Appeals which covers a point of law still undecided in the Philippines
may serve as judicial guide to the inferior courts.

(Miranda v. Imperial, 77 Phil 1066), (Buatis, Jr. V. PP-GR No.142509, Jun.28, 2006), (Civil Code, Paras)
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DECISION OF THE COURT OF APPEALS

Decisions of the Court of Appeals merely have persuasive, and therefore no mandatory effect.
However, a conclusion or pronouncement which covers a point of law still undecided may still serve as
judicial guide and it is possible that the same maybe raised to the status of doctrine, if after it has been
subjected to test in the crucible of analysis, the Supreme Court should find that it has merits and
qualities sufficient for its consideration as a rule of jurisprudence (CM Code, Paras).

OBITER DICTUM AND OPINIONS are not necessary the determination of a case. They are not binding
and cannot have the force of official precedents. (Civil Code, Paras)

LAW OF THE CASE

A decision of a division of the Supreme Court may be set aside by the Supreme Court sitting en
banc : a Supreme Court decision may be set aside by a contrary ruling of the Supreme Court itself or by
a corrective legislative act of Congress, although said laws cannot adversely affect those favored prior to
the Supreme Court decision. (Civil Code, Paras)

Note: New law may be availed of by the aggrieved party in a previous decision of the court if it is
favorable to him.

Let say, X was accused of theft for withdrawing deposit mistakenly credited to his account.
Then, X appealed. Thereafter, the SC wrongfully upheld the ruling of the lower court. The decision of the
Supreme Court is the law of that case no matter how wrong it is.

Then, Congress, mindful of the fate of several depositors who withdrew deposits inadvertently
credited to their accounts, passed a law that a depositor who mistakenly withdrew money wrongfully
credited by computer glitch is not criminally liable. X can now avail of that law because it is favorable to
him.

DUTY OF THE COURT TO RENDER JUDGMENT

Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the laws.

EXPLAIN THE PRINCIPLE OF STARE DECISIS.

The principle of stare decisis embodies the legal maxim that a principle of law which has been
established by the decision of a court of controlling jurisdiction will be followed in other cases involving
a similar situation. It is founded on the necessity for securing certainty and stability in the law and does
not require identity of parties.

The principle of stare decisis enjoins adherence by lower courts to rules established by the
Supreme Court in its final derisions. It is based on the principle that once a question of law has been-
examined and decided, it should be deemed settled and closed to further argument. Basically, it is a bar
to any attempt to relitigate the same issues, necessary for two simple reasons: economy and stability. In
our jurisdiction, the principle is entrenched in Article 8 of the Civil Code.

WHAT IS JUDICIAL LEGISLATION

JURISPRUDENCE

IT IS NOT A LICENSE FOR COURTS TO ENGAGE IN JUDICIAL LEGISLATION. THE DUTY OF THE
COURTS IS TO APPLY OR INTERPRET THE LAW, NOT TO MAKE OR AMEND IT.

Silverio vs. Republic, G.R. No. 174689, October 19,2007

X, alleging that he is a male transsexual and underwent sex reassignment surgery, filed a
petition for the change of his first name and sex in his birth certificate. The trial court granted the
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petition. The court resonates that no injury or harm may cause to anybody in the community in
granting the petition and it would bring the much-awaited happiness on the part of X, and it is in
consonance with the principles of justice and equity. Is the judgment of the trial court correct?

No. It is true that Article 9 of the Civil Code mandates that “no judge or court shall decline to 7
render judgment by reason of the silence, obscurity or inadequacy of the law.” However, it is not a
license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the
law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine
what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important here where the claims asserted are statute-based. To
reiterate, the statutes define who may file petitions for change of first name and for correction or change
of entries in the civil registiy, where they may be filed, what grounds may be invoked, what proof must
be presented and what procedures shall be observed. If the legislature intends to confer on a person who
has undergone sex reassignment the privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of
that privilege. It might be theoretically possible for the Court to write a protocol on when a person may
be recognized as having successfully changed his sex. However, the Court has no authority to fashion
law on that matter, or on anything else. The Court cannot enact a law where law exists. It can only
apply or interpret the written word of its co-equal branch of government, Congress.

PRESUMPTION
IN CASE OF DOUBTS IN THE INTERPETATION OF LAWS

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.

EQUITY FOLLOWS LAW

It is a long standing principle that equity follows the law. Courts exercising equity jurisdiction are bound
by rules of law and have no arbitrary discretion to disregard them. (Arsenal v. IAC, 143 SCRA 40)

As for equity, which has been aptly described as a ‘justice outside legality” this is applied only in the
absence of but never against statutory law. (Zabat, jr. V. CA, 226 Phil 489) (Toyota Motor Phil. V. CA,
216 SCRA 236) (Phil Rabbit Bus Lines, Inc. Vs. Arciaga, GR 29701, March 16,1987)

2003 BAR EXAMINATION

It is said that “equity follows the law” What do you understand by this phrase, and what are its
basic implications?

“Equity follows the law” means that courts exercising equity jurisdiction are bound by rules of
law and have no arbitrary discretion to disregard them. (Arsenal v. fAC, 143 SCRA 40[1986]. Equity is
applied only in the absence of but never against statutory law. (Toyota Motor Phil. V. CA 216 SCRA 236
[1992]). If there is a law applicable for the set of facts, the court cannot apply equity. Pag wala lang laaw
for the set of facts, then the court may use its discrretionary powers to use equity. Dun lang pwede
“maawa’ ang court. Yung mga laches – thats equity.

Kahit void ang sale done in 1945 for a parcel of lot, the one who had a right to file an action for
recission of contract cannot do that anymore. Laches has set in. The lot has an SM Mall on it and
several government agencies are there.

NATIONALITY PRINCIPLE/LEX NATIONALI

Art. 15 Laws relating to family rights and duties, or to the status, condition and legal capacity of
are binding upon citizens of the Philippines, though living abroad.

Divorce

A divorce obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws. (Van Dorn v. Romillo, Jr., 139
SCRA 1 39, 1985)
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Legal capacity to contract marriage

Legal capacity to contract marriage is determined by the national law of the party concerned.
(Garcia v. Recio, G.R. No. 138322, Oct.2, 2001)
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Domiciliary Theory

A conflict of law theory by virtue of which a particular matter affecting a person, such as his
personal status, is determined by and/or subject to the jurisdiction of the law of his domicile.

Rule for Absolute Divorce

If the action is brought in a FOREIGN COURT, between foreigners, the foreign decree of absolute
divorce will be recognized as valid here only if the following two conditions concur:

The foreign court must have had jurisdiction to grant the absolute divorce;

Divorce must be recognized as valid by the national law of the parties.

In the application of Art.26 of the Family Code, the reckoning point is not the citizenship of the
parties at the time of the celebration of the marriage, but their citizenship at the time a valid divorce
is obtained abroad by the alien spouse capacitating the latter to remarry. (R.P.. v. Orbecido,
G.R.No.154380, Oct.5, 2005)

Now, if it were the Filipino spouse who obtained the marriage, the court would take cognizance. –
Manalo case 2018.

LEX REI SITAE

Art. 16. Real property as well as personal property is subject to the law of the country where it is
situated.

EXCEPTION: (2nd Par )

In intestate and testamentary successions, it is the national law of the person whose succession is
under consideration that shall applied, regardless of the nature and location of the property, with respect
to the following:

1. Order of succession

2. Amount ofsuccessionai rights

3. Intrinsic validity of will; and

4. Capacity to succeed

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the
forms by the law of the countiy in which he be. Such will may be probated in the Philiplines.

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in he resides, or according to the formalities observed in
his country, or in conformity with which this Code prescribes.

Art. 817. A will made in the Philippines by a citizen or subject of another country, which is
executed in accordance with the law of the country of which he is a citizen or subject, and which might
be and allowed by the law of his own country, have the same effect as if executed according to the
laws of the Philippines.

Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for
their reciprocal benefit or for the benefit of a third person.

Art. 819. Wills, prohibited by the preceding executed by Filipinos in a foreign coud not be valid in
the Philippines, even though by the laws of the country where they may have been executed.

RENVOI DOCTRINE
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Literally means a “referring back”; this doctrine usually pertinent where the decedent is a
national of one country, and a domicile of another, and the issue involved is with regard to:

(a) the order of succession;

9
(b) the amount successional rights;

(e) the intrinsic validity of the provisions of the will; and

(d) the capacity to succeed.

(Aznar v. Christensen Gracia, GRNo. L6749.Jan.31,1963)

Let’s say, a Chinese national domiciled here in the Philippines died. Our court refer the matter
of order of succession to China. When the party filed the case in China, binalik ng Chinese court sa
Pilipinas. If that happened, our court is constrained to take cognizance. Hindi nanatin dapat pang ibalik
sa China ang case even if our national law does not allow it. Because if we done that, magkakarron lang
ng “ping-pong” ng case.

Doctrine of Processual Presumption

In the absence of pleading and proof, the laws of a foreign country, or state, will be presumed to be the
same as our own local or domestic law.

LEX LOCI CELEBRATIONIS

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be
govern by the law of the country in which they are executed. (LEX LOCI CONTRACTUS)

When the acts referred to are executed before the diplomatic or consular officials of the Republic of
Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in
execution.

Prohibitive laws concerning persons, their acts or property, and those which have for their object
order, public policy and good customs shall be rendered ineffective by laws or judgments promulgated, or
by determinations or conventions agreed upon in a foreign countiy.

Lex Loci Contractus

According to the doctrine of lex loci contractus, as a general rule, the law of the place where a
contract is made or entered governs with respect to its nature and validity, obligation and
interpretation. This has been said to be the rule even though the place where the contract was made is
different from the place where it is to be performed, and particularly so, if the place the making and the
place of performance are the same. (Zalanea vs. Court of Appeals, 228 SCRA 23 (1993).

Depecage

It is a term used where different aspects of a case involving a foreign element may be governed
by different systems of law.

-----------------------xxx-----------------

Articles 15, 16 and 17 are sibling laws. Malimit na magkakasama sila.

Articles 15, 16 and 17 and Succession are sibling laws.

Article 17 and Art 26 (2) of the Family Code are close-friends laws.

-------------xxx----------------

2014 BAR EXAMINATION

Ted, married to Annie, went to Canada to work. Five (5) years later, Ted became a naturalized
Canadian citizen. He returned to the Philippines to convince Annie to settle in Canada. Unfortunately,
Ted discovered that Annie and his friend Louie were having an affair. Deeply hurt, Ted returned to
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Canada and filed a petition for divorce which was granted. In December 2013, Ted decided to marry his
childhood friend Corazon in the Philippines. In preparation for the wedding, Ted went to the Local Civil
Registry of Quezon City where his marriage contract with Annie was registered. He asked the Civil
Register to annotate the decree of divorce on his marriage contract with Annie. However, he was advised
by the National Statistics Office (NSO) to file a petition for judicial recognition of the decree of divorce in 10
the Philippines. Is it necessaiy for Ted to file a petition for judicial recognition of the decree of divorce he
obtained in Canada before he can contract a second marriage in the Philippines?

No, it is not necessary for Ted to file a petition for judicial recognition of the decree of divorce he
obtained in Canada before he can contract a second marriage in the Philippines. In the case of Garcia
v. Recio, G.R. No. 138322, Oct.2, 2001, the Supreme Court ruled that the legal capacity to contract
marriage is determined by the national law of the party concerned. Here, Ted is already a Canadian
citizen, and a divorcee. Therefore, he is not required to file that petition to contract a subsequent
marriage in the Philippines.

2009 BAR EXAMINATION

[1] If Ligaya, a Filipino citizen residing in the United States, files a petition for change of name
before the District Court of New York, what law shall apply? Explain.

New York law shall apply. The petition for change of name file din New York does not concern
the legal capacity or status of the petitioner. Moreover, it does not affect the Registry of any other
country including the country of birth of the petitioner. Whatever judgment is rendered by that petition
will have effect only in New York, The New York court cannot, for instance, order the Civil Registrar in
the Philippines to change its records, The judgment of the New York Court allowing a change in the
name of the petitioner will be limited to the records of the petitioner in New York and the use of the new
name in all her transactions in New York. Since the records and poocesses in New York are the only
ones affected, the New

[2] Emmanuel and Margarita, American citizens and employees of the U.S. State Department,
got married in the African state of Kenya where sterility is a ground for annulment of marriage.
Thereafter, the spouses were assigned to the U.S. Embassy in Manila. On the first year of the spouses’
tour of duty in the Philippines, Margarita filed an annulment case against Emmanuel before a Philippine
court oN the ground of her husband’s sterility at the time of the celebration of the marriage. [a] Will the
suit prosper? Explain your answer.

No, the suit will not prosper. Under Art 15 of the Civil Code, laws relating to family rights and
duties, or to the status, condition and legal capacity of are binding upon citizens of the Philippines,
though living abroad. Here, Emmanuel and Margarita are are American citizens but married under the
Kenyan law. Applying the above provision, it should be U.S. law, which is the national law of both
Emmanuel and Margarita shall govern the annulment proceedings and not Kenyan law. Hence, the
Philippine court will not give due course to the case based on Kenyan law.

DOCTRINE

The nationality principle as expressed in the application of national law of foreign nationals by
Philippine courts is established by precedents.

(Pilapil v. Ibay-Somera, 174 SCRA 653 [1989], Garcia v. Recio, 366 SCRA437 [2001], Llorentev, Court of
Appeals 345 SCRA 92 [2000], and Bayot v. Court of Appeals 570 SCRA 472 [2008]).

2005 BAR EXAMINATION

In 1985. Sonny and Lulu, both. Filipino citizens, were married in the Philippines. In 1987, they
separated, and Sonny went to Canada, where he obtained a divorce same year. He then married another
Filipina, Auring, in Canada on January 1,1988. They had two sons, James and John. In 1990, after
failing to hear from Sonny, Lulu married Tirso, by whom she had a daughter, Verna. In 1991, Sonny
visited the Philippines where he succumbed to heart attack. Discuss the effect of the divorce obtained by
Sonny and Lulu in Canada.
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The divorce obtained by Sonny in Canada was not valid, the subsequent marriages are void,
and the children begat out of it are illegitimate. Under Art 15 of the Civil Code, Philippine laws bind the
legal capacity of the citizens of our country although living abroad, and pursuant to Art 26 of the Family
Code, divorce decree may not be given cognizance if obtained for Filipino spouses. Here, Sonny and Lulu
11
were Filipinos when the former obtained divorce in Canada. Both of them contracted subsequent
marriages – Sonny with Auring while Lulu with Tirso. Sonny had two children with Auring – James and
John. Applying the above laws, the divorce decree is invalid making the subsequent marriages void and
the children illegitimate for having conceived and born out of a valid marriage.

Explain the status of the marriage between Sonny and Auring.

The marriage is null and void for being bigamous because of his subsisting marriage to’Lulu.
(Art. 41. Family Code)

Explain the status of the mairiage between Lulu and Tirso.

The marriage is null and void for being bigamous because of her subsisting marriage to Sonny. (Art. 41.
Family Code)

2004 BAR EXAMINATION

B0N1 and ANNE met while working overseas. They became sweethearts and got engaged to be
married on New year’s Eve aboard a cruise ship in the Caribbean. They took the proper license to marry
in New York City, where there is a Filipino consulate. But as planned the wedding ceremony was
officiated by the captain of the Norwegian-registered vessel in a private suite among selected friends.
Back in Manila, Anne discovered that Boni had been married in Bacolod City 5 years earlier but
divorced in Oslo only last year. His first wife was also a Filipina but now based in Sweden. Boni himself
is a resident of Norway where he and Anne plan to live permanently. Anne retains your services to
advise heron whether her marriage to Boni is valid under Philippine law? Is there anything else she
should do under the circumstances?

[If Boni is still a Filipino citizen, his legal capacity is governed by Philippine Lav (Art. 15 civil
Code). Under Philippine law, his marriage to Anne is void because of a prior existing marriage which was
not dissolved by the divorce decreed in Oslo. Divorce obtained abroad by a Filipino is not recognized. If
Boni was no longer a Filipino citizen, the divorce is valid. Hence, his marriage to Anne is valid if
celebrated In accordance with the law of the place where it was celebrated. Since the marriage was
celebrated aboard a vessel of Norwegian registry, Norwegian law applies. If the Ship Captain has
authority to solemnize the marriage aboard his ship, the marriage is valid and shall be recognized in the
Philippines.]

The marriage is invalid. Under the Civil Code, Philippine laws bind the legal capacity of the
citizens of our country although living abroad, and pursuant to Art 26 of the Family Code, divorce
decree may not be given cognizance if obtained for Filipino spouses.

Here, Boni was a Filipino citizen when he secured a divorcement in Oslo for his marriage to a
Fililina in Bacolod. He, then, married Anne abroad. Therefore, the divorce he obtained was invalid and
his subsequent marriage with Anne was null and void for his first marraige was not dissolved by the
invalid divorce.

[2] PH and LV are HK Chinese. Their parents are now Filipino citizens who live in Manila. While
still students in State, they got married although they are first cousins. Appears that both to HK and in
MNS State first cousins could many legally. They plan to reside and set up business in the Philippines.
But they have been Informed, however, that the marriage of first cousins here is considered void from
the beginning by reason of public policy. They are in a dilemma. They don’t want to break Philippine
law, much less their marriage vow. They seek your advice on whether their civil status will be adversely
affected by Philippine domestic law? What is your advice? (5%)

The civil status of PH and LV will not be adversely affected by Philippine la w because they
are nationals of Hong Kong and not Filipino citizens. Under Art Art. 15 of the Family Code, legal
capacity to contract marriage is governed by the national law of the parties, and under the same law,
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marriages validly celebrated abroad are valid in the Philippines. Here, they are Chinese and according
to their national law as well as to MNS State where they got married, the marriage of first cousins are
legal. Therefore, their marriage are also valid here.

[3] Distinguish briefly but clearly between: Domiciliary theory and nationality theory of personal 12
law.

Domiciliary Theory posits that the personal status and rights of a person are governed by the
law of his domicile or the place of his habitual residence. The Nationality Theory, on the other hand,
postulates that it is the law of the person’s nationality that governs such status and rights. – UPLC This
is discussed in Conficts of law.

2003 BAR EXAMINATION

[1] Gene and Jane, Filipinos, met and got married in England while both were taking up post-
graduate courses there. A few years after their graduation, they decided to annul their marriage. Jane
filed an action to annul her marriage to Gene in England on the ground of the latter’s sterility, a ground
for annulment of marriage in England. The English court decreed the marriage annulled. Returning to
the Philippines, Gene asked you whether or not he would now be free to marry his former girlfriend.
What would your legal advice be?

No, Gene is not free to marry his former girlfriend. Under Art 15 of the Civil Code, legal capacity
of parties are governed by their national laws. Although their annulment is valid according to the forms
and emnities of British law, is valid here (Article 17,1st par., NCC). However, since Gene and Jane are
still Filipinos, although living in England, the dissolution of their marriage is still governed by Philippine
law. Since, sterility is not one of the grounds for the annulment of a marriage under Article 45 of the
Family Code, the annulment of Gene’s marriage to Jane on that ground is not valid in the Philippines
(Article 17,NCC)

1999 BAR EXAMINATION

What is the status of the following marriages and why? A marriage between two Filipino first cousins in
Spain where such marriage is valid.

The marriage is void. Under Art 15 of the Family Code, legal capacity of citizens of the Philippines are
governed by Philippine law although living abroad. And under the same code, marriage between first
cousins arer void for being against pubic policy.

1998 BAR EXAMINATION

Francis Albert, a citizen and resident of New Jersey, USA. Under whose law he was still a minor,
being only 20 years of age, was hired by ABC Corporation of Manila to serve two years as its chief
computer programmer, But after working for only four months, he resigned to join XYZ Corporation,
which enticed him by offering more advantageous terms. His first employer sues him in Manila for
damages arising from the breach of his contract of employment. He put up his minority as a defense and
asks for annulment of the contract on that ground. The plaintiff disputes this by alleging that since the
contract was executed In the Philippines underwhose law the age of majority Is 18years, he was no
longer a minor at the time of perfection of the contract. Will the suit prosper?

No, the suit will not prosper under Article 15, Civil Code. The legal capacity of the person to
enter into a contract if determined by his nationality law. Here, Francis Albert is a minor in his country
and, hence, cannot enter into an employment contract.

Juan is a Filipino citizen residing in Tokyo, Japan. State what laws govern: His capacity to
contract marriage in Japan.

Juan’s capacity to contract marriage is governed by Philippine law pursuant to Art. 15, Civil
Code, which provides that our laws relating to, among others, legal capacity of persons are binding upon
citizens of the Philippines even though living abroad.

1997 BAR EXAMINATION

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In 1977, Mario and Clara, both Filipino citizens, were married in the Philippines. Three years
later, they went to the United States of America and established their residence in San Francisco,
California. In 1987, the couple applied for, and were granted, U.S. citizenship. In 1989. Mario, claiming
to have been abandoned by Clara, was able to secure a decree of divorce in Reno, Nevada, U.S.A. In
1990, Mario returned to the Philippines and married Juana who knew well Mario’s past life. Is the 13
marriage between Mario and Juana valid?

Yes, the marriage is valid. In relation to Art, 15 of the Civil Code, legal capacity of persons to
contract marriage is governed by their nationality law. Here, Mario was slready an American and a
divorcee. Therefore, his foreign divorce is valid in the Philippines, and he can freely contract subsequent
marriage with Juana.

Conflict of Laws provides that the recognition of an absolute divorce granted in another State
rests on the citizenship of the parties at the time the divorce was granted (Paras, Ph.iL Conflict of Laws,
p. 259).

1995 BAR EXAMINATION

While in Afghanistan, a Japanese by the name of Sato sold to Ramoncito, a Filipino, a parcel of
land situated in the Philippines which Sato inherited from his Filipino mother. What law governs the
capacity of the Japanese to sell the land? Explain your answer and give its legal basis.

Japanese law governs the capacity of the Japanese to sell the land being his national law on the
basis of interpetaing Art 15 of the Civil Code

What law governs the capacity of the Filipino to buy the land? Explain your answer and give its
legal basis.

Philippine law governs the capacity of the Filipino to buy the land. Article 15 of the NCC
specifically provides that Philippine laws relating to legal capacity of persons are binding upon citizens of
the Philippines even though they are living abroad. Also, the property is located in the Philippines,
under Art 16 of the same Code, real property as well as personal property is subject to the law of the
country where it is situated.

2015 BAR EXAMINATION

Alden and Stela were both former Filipino citizens. They were married in the Philippines but
they later migrated to the United States where they were naturalized as American citizens. In their union
they were able to accumulate several real properties both in the US and in the Philippines.
Unfortunately, they were not blessed with children. In the US, they executed a joint will instituting as
common heirs, to divide their combined estate in equal shares, the five siblings of Alden and the seven
siblings of Stela. Alden passed away in 2013 and a year later, Stela also died. The siblings of Alden who
were all citizens of the US instituted probate proceedings in a US Court impleading the siblings of Stela
who were all in the Philippines. Can the joint will produce legal effect in the Philippines with respect to
the properties of Alden and Stela found here? If so, how?

Yes, the joint will may produce legal effect in the Philippines. Under articles 16 and 17 of the
Civil Code, , the will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the place of the law in which he resides or according to the formalities observed
in his country, or in conformity with those which this Code prescribes. And in article 17, the forms and
solemnities of contracts, wills, and other public instruments shall be governed by the laws of the
country in which they are executed.

Here, Alden and Stela were both naturalized American citizens at the time of the execution of
the will, they are allowed to execute a will in accordance with the formalities prescribed by the law of
their country, where they reside, or Philippine law (Art 16). Therefore, the will maybe given effect in the
Philippines via a probate proceeding.

However, the prohibition on foreign ownership of the land shall stand against the siblings of
Alden since they are already US citizens. Under Art. 17, second paragraph, provides that prohibitive
laws concerning persons, their acts or property, those which have for their object public order, public
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policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.

Is the situation presented in Item I an example of depecage?

14
No, the situation presented in tem is not an example of depecage. Depegage is a term used
where different aspects of a case involving a foreign element may be governed by different systems of
law. In this case, only one system of laws governs, that of U.S. law. Under Article 16 par. (2) of the Civil
Code, intestate and testamentary succession, with respect to the order of succession and to the amount
of successionaf rights and to the intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found. For the will to be probated,
it must also comply with US law under Articles 17 and 16 of the Civil Code, as the US was the place of
the will’s execution, the residence of the spouses, and the country where they are nationals. – UPLC

For me yes. Since the second paragraph of Art 17 prohibits the the implemention of judgment in
contrast with our national law, real properties cannot be awarded to Alden’s US citizens siblings for the
same shall be in violation on proscription against aliens to own public land.

2009 BAR EXAMINATION

On December 1, 2000, Dr. Juanito Fuentes executed a holographic will, wherein he gave
nothing to his recognized illegitimate son, Jay. Dr. Fuentes left for the United States, passed the New
York medical licensure examinations, resided therein, and became a naturalized American citizen. Died
in New York in 2007. The laws of New York do not recognize holographic wills or compulsory heirs.
Assuming that the will is probated in the Philippines, can Jay validly insist that he be given his legitime?
Why or why not?

No, Jay cannot insist. Under Article 16 of the Civil Code, the national law of the testator
determines who his heirs are, the order that they succeed, how much their successional rights are, and
whether or not a testamentary disposition in his will is valid. Here, Dr. Fuentes is already a US citizen
and the law in New York does not recognize compulsory heirs. Although the same foreign law does not
also recognize holographic will, Dr. Fuentes was a Filipino when he made it and our law recognizes
holographic wills. Therefore, the will is valid and following Art 16 of the civil code, Jay will not share of
the Dr. Fuentes’s estate.

[2] TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false.
Explain your answer in not more than two (2) sentences. (5%)

Doctrine of “processual presumption” allows the court of the forum to presume that the foreign
law applicable to the case is the same as the local or domestic law. TRUE. If the foreign law necessary to
resolve an Issue is not proven as a fact, the court of the forum may presume that the foreign law is the
same as the law of the forum.

2007 BAR EXAMINATION

Write “TRUE” if the statement is true or “FALSE” if the statement is false. If the statement is
FALSE, state the reason.

Roberta, a Filipino, 17 years of age, without the knowledge of his parents, can acquire a house
in Australia because Australian Laws allow aliens to acquire property from the age of 16.

FALSE. According to Art 15 of the civil Code, laws relating to family rights and duties, or to the
status, condition and legal capacity of persons ares living abroad. The age of majority under Philippine
law is 18 years. Therefore,, Roberta, being only 17 years old, has no legal capacity to acquire and own
land.

2004 BAR EXAMINATION

In his lifetime, a Pakistani citizen, ADIL, married three times under Pakistani law. When he died
an old widower, he left behind six children, two sisters, three homes, and an estate worth at least 30
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million pesos in the Philippines. He was born in Lahore but last resided in Cebu City, where he had a
mansion and where two of his youngest children now live and work. Two of his oldest children are
farmers in Sulu, while the two middle-aged children are employees in Zamboanga City. Finding that the
deceased left no will, the youngest son wanted to file intestate proceedings before the Regional Trial
Court of Cebu City. Two other siblings objected, arguing that it should be in Jolo before a Shari’a court 15
since his lands are in Sulu. But Adil’s sisters Pakistan want the proceedings held in Lahore before a
Pakistani court. Which court has jurisdiction and is the proper venue for the intestate proceedings? The
law of which country shall govern succession to his estate? (5%)

Under Philippine law, the proper venue for the settlement of the estate is domicile of the decedent at
the time of his death. Hence, the court in Cebu City is the proper venue since this his last residence
when he passed away. As to the disposition of his estate, under Article 16, second paragraph, provides
that “In intestate and testamentary successions, it is the national law of the person whose succession
is under consideration that shall applied, regardless of the nature and location of the property, with
respect to the following: order of succession, amount of successionai rights, intrinsic validity of will; and
capacity to succeed. Here, Adil was a Pakistani and his national law will determine who are his heirs
and their amount of successional rights. However, with regards to the properties found in the
Phiippines, the disposition shall be governed by the Philippine law.

[2] A Filipino couple, Mr. And Mrs. BM. Jr., decided to adopt YV, an orphan from St. Claire’s
orphanage in New York They loved and treated her like a legitimate child for they have none of their very
own. However, BM, Jr., died in an accident at sea, followed to the grave a year later by his sick father,
BM, Sr. Each left a sizable estate consisting of bank deposits, lands and buildings in Manila. May the
dopted child, YV, inherit from BM, Jr.? May she also inherit from BM. Sr.? Is there a difference? Why?
Explain.

YV can inherit from BM, Jr. Under Art 16 of the Civil Code, successional rights are governed by
the national law of the decedent. Here, BM Jr died as a Filipino, and under our law, an adoptee shall
inherit from the adopter. Also under Article 1039 of the Civil Code, the capacity of the heir to succeed is
governed by the national law of the decedent and not by the national law of the heir. Hence, YV shall
share in the estate of BM Jr. However, as to the question whether YV may inherit from Bm Sr, if the the
latter was still a Filipino when he died, YV cannot inherit because the legal fiction created by adoption is
exclusively for, and between, the adoter and adoptee. Neither may he inherit from BM, Sr. by
representing BM, Jr. Because in representation, the representative must be a legal heir not only of the
person he is representing but also of the decedent from whom the represented was supposed to inherit
(Article 973, Civil Code). Nevertheless, if the decedent was already a US citizen, the law of New York
shall be followed as the national law of the decedent in terms of the right of YV to succeed.

Art. 973. In order that representation may take place it is necessary that the representative
himself is capable of succeeding the decedent.

2002 BAR EXAMINATION

Felipe and Felisa, both Filipino citizens, were married in Malolos, Bulacan on June 1, 1950. In
1960, Felipe went to the United States, becoming a U.S. citizen in 1975. In 1980, he obtained a divorce
from Felisa, who was duly notified of the proceedings. The divorce decree became final under California
law. Coming back to the Philippines in 1982, Felipe married Segundina, a Filipino citizen. In 2001,
Felipe, then domiciled in Los Angeles, California, died, leaving one child by Felisa, and another one by
Segundina. He left a will which was executed in Manila, under which he left his estate to Segundina and
his two children and nothing to Felisa. Segundina files a petition for the probate of Felipe’s will. Felisa
questions the intrinsic validity of the will , arguing that her marriage to Felipe subsisted despite the
divorce obtained by Felipe because said divorce is not recognized in the Philippines. For this reason, she
claims that the properties left by Felipe are their conjugal properties and that Segundina has no
successions rights. What law governs the formalities of the will? Explain.

The Philippine law where the will is excuted or the law in California where the decedent is a
citizen. Under Art 17 and 817of the Civil Code.

Shall Philippine law govern the intrinsic validity of the will?

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No. the Philippine law will not govern the instrinsic validity of the will, but the California law.
Under Article 16 of the New Civil Code provides that intrinsic validity of testamentary provisions shall be
governed by the national law of the person whose succession is under consideration.

2001 BAR EXAMINATION 16

Alex was born a Filipino but was a naturalized Canadian citizen at the time of his death on
December 25,1998. He left behind a last will and testament in which he bequeathed all his properties,
real and personal, in the Philippines to his acknowledged illegitimate Filipina daughter and nothing to
his two legitimate Filipino sons. The sons sought the annulment of the last will and testament on the
ground that it deprived them of their legitimes but the daughter was able to prove that there were no
compulsory heirs or legitimes under Canadian law. Who should prevail?

The daughter should prevail because Article 16 of the New Civil Code provides that intestate and
testamentary succession shall be governed by the national law of the person whose succession is under
consideration. Here, Alex was already a Canadian citizen. Hence, the Canadian law shall govern who will
succeed over his estate.

1998 BAR EXAMINATION

Juan is a Filipino citizen residing in Tokyo, Japan. State what laws govern:

[a] His successions rights as regards his deceased Filipino father’s property in Texas, U.S A.

Juan’s successional rights shall be governed by the national law of the decedent who is his father, a
Filipino citizen. Therefore, the Philippine law shall govern.

Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent.

[b] The extrinsic validity of the last will and testament which Juan executed while sojourning in
Switzerland.

By the Swiss law as the place of execution according to Art 17 of the CC; or the Philippine law
as the national law of the testator according to Art 816 of the CC, by implication which llows even an
alien who is abroad to make a will in conformity with the Civil Code.

1997 BAR EXAMINATION

In 1977, Mario and Clara, both Filipino citizens, were married in the Philippines. Three years
later, they went to the United States of America and established their residence in San Francisco,
California. In 1987, the couple applied for, and were granted, U.S. citizenship. In 1989. Mario, claiming
to have been abandoned by Clara, was able to secure a decree of divorce in Reno, Nevada, U.S.A. In
1990, Mario returned to the Philippines and married Juana who knew well Mario’s past life. Would the
renvoi doctrine have any relevance the case?

No. The renvoi doctrine is relevant in cases where one country applies the domiciliary theory
and the other the nationality theory, and the issue involved is which of the laws of the two countries
should apply to determine the order of succession, the amount of successional rights, or, the intrinsic
validity of testamentary provisions. Here, the issue is about the validity of the divorce procured by Mario
and his subsequent marriage with Juana. Hence, renvoi doctrine finds no application in the case.

1995 BAR EXAMINATION

Michelle, the French daughter of Penreich, a German national, died in Spain leaving real
properties in the Philippines as well as valuable personal properties in Germany. What law determines
who shall succeed the deceased? Explain your answer and give its legal basis.

French law determines who shall succeed the deceased in her estate according to Art 16 of the
Civil Code.

What law regulates the distribution of the real properties in the Philippines? Explain your
answer and give its legal basis.
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Distribution of the real properties in the Philippines shall be governed by Philippine law
according to Art 16 of the CC.

French law shall govern the distribution of his real properties in the Philippines except when the
real property is land which may be transmitted to a foreigner only by hereditary succession . – I have 17
reservation with this aanswer.

What Law governs the distribution of the personal properties in Germany?

Germany law in accordance with Art 16 of the CC.

1991 BAR EXAMINATION

Jacob, a Swiss national, married Lourdes, a Filipina, in Berne, Switzerland. Three years later,
the couple decided to reside In the Philippines. Jacob subsequently acquired several properties in the
Philippines with the money he inherited from his parents. Forty years later, Jacob died intestate, and is
survived by several legitimate children and duly recognized illegitimate daughter Jane, all residing in the
Philippines. Suppose that Swiss law does not allow illegitimate children to inherit, can Jane, who is a
recognized illegitimate child, inherit part of the properties of Jacob under Philippine law?

No, she cannot inherit part of the properties of Jacob under Philipppine law. The national law of
the decedent determines the who shall succeed over his estate. Here, the Swiss law, being the decedent’s
national law, does not allow illegitmate to succeed the decedent. Hence, Jane cannot have part of the
properties of Jacob.

Assuming that Jacob executed a will leaving certain properties to Jane as her legitime in
accordance with the law of succession in the Philippines, will such testamentary disposition be valid?

The testamentary disposition is valid if the Swill law allowed it. According to Art 16 of the CC,
the validity of testamentary provisions of a will shall be govern by the national of the decedent. Unless
the Swiss law is proved, it would be presumed to be the same as that of Philippine law under the
doctrine of processual presumption.

2002 BAR EXAMINATION

Felipe is a Filipino citizen. When he went to Sydney for vacation, he met a former business
associate, who proposed to him a transaction which took him to Moscow. Felipe brokered a contract
between Sydney Coals Corp. (Coals), an Australian firm, and Moscow Energy Corp. (Energy), a Russian
firm, for Coals to supply coal to Energy on a monthly basis for three years. Both firms were not doing,
and still do not do, business in the Philippines. Felipe shuttled between Sydney and Moscow to close the
contract. He also executed in Sydney a commission contract with Coals and in Moscow with Energy,
under which contracts he was guaranteed commissions by both firms based on a percentage deliveries
for the three-year period, payable in Sydney and in Moscow, respectively, through deposits in accounts
that he opened in the two cities. Both firms paid Felipe his commission for four months, after which
they stopped paying him. Felipe learned from his contacts, who are residents of Sydney and Moscow,
that the two firms talked to each other and decided to cut him off. He now files suit in Manila against
both Coals and Energy for specific performance. Define or explain the principle of “lex loci contractus’.

Lex loci contractus may be understood in two sense.

[1] It is the law of the place wnere contracts, wills, and other public instruments are executed and
governs their “forms and solemnities”, pursuant to the first paragraph, Article 17 of the New Civil Code;
or

[2] It is the proper law of the contract; i.e., the system of law intended to govern the entire contract,
including its essential requisites, indicating the law of the place with which the contract has its closest
connection or where the main elements of the contract converge.

Uplc answer

Should the Philippine court assume jurisdiction over the case? Explain.
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No. The court can never acquire jurisdiction over the companies involved for none of them were
doing business in the Philippines, and neither the Philippine court has power to determine the facts
surrounding the execution of said contracts, and even if a proper decision could be reached, such would
have no binding effect as the court was not able to acquire jurisdiction over the said corporations. Also,
18
the contracts were not executed or performed in the Philippines nor the provisions provides that the
Philippines shall be the venue in case of dispute. Hence, the local court cannot assume jurisdiction over
the case of Felipe.

1996 BAR EXAMINATION

Alma was hired as a domestic helper in Hongkong by the Dragon Services. Ltd., through its local
agent. She executed a standard employment contract designed by the Philippine Overseas Workers
Administration (POEA) for overseas Filiplno workers. It provided for her employment for one year at a
salaiy of US$1,000.00 a month. It was submitted to and approved by the POEA. However, when she
arrived in Hongkong, she was asked to sign another contract by Dragon Services, Ltd. which reduced
her salary to only US$600.00 a month. Having no other choice, Alma signed the contract payment of the
salary differential of US$400.00 a month. Both Dragon Services, Ltd. and its local agent claimed that the
second contract is valid under the laws of Hongkong, and therefore binding on Alma. Is their claim
correct? Explain.

No, their claim is not correct. Under Art. 17 of the Civil Code, provides that our prohibitive laws
concerning persons, their acts, or their property or which have for their object public order, public policy
and good customs shall not be rendered ineffective by laws or conventions agreed upon in a foreign
country.

Here, the second contract executed in Hongkong, partakes of the nature of a waiver that is
contrary to Philippine law and the public policy governing Filipino overseas workers. Therefore, second
contract is inavalid being contrary to our prohivitive laws.

1995 BAR EXAMINATION

On 8 December 1991 Vanessa purchased from the Manila office of Euro-Aire an airline ticket
for its Flight No. 710 from Dallas to Chicago on 16 January 1992. Her flight reservation was confirmed.
On her scheduled departure Vanessa checked in on time at the Dallas airport. However, at the check-in
counter she discovered that she was wait-listed with some other passengers because of intentional
overbooking. A Euro-Aire policy and practice. Euro-Aire admitted that Vanessa was not advised of such
policy when she purchased her plane ticket. Vanessa was only able to fly two days later by taking
another airline. Vanessa sued Euro-Aire in Manila for breach of contract and damages. Euro-Aire
claimed that it cannot be held liable damages because its practice of overbooking passengers was
allowed by the U.S. Code of Federal Regulations. Vanessa on the other hand contended that assuming
that the U.S. Code of Federal Regulations allowed intentional overbookIng, the airline company cannot
invoke the U.S. Code ground that the ticket was purchased in Manila, hence, Philippine law should
apply, under which Vanessa can recover damages for breach of contract of carriage. Decide. Discuss
fully.

Vanessa can recover damages under Philippine law for breach of contract of carriage. Under Art
17, the governing law for conracts is the law of the place where contracts are executed. Here, the ticket
was purchased in Manila. Hence, Philippine law should govern as the law of the place where the plane
tickets were bought and the contract of carriage was executed.

DOCTRINE

In Zalamea u. Court of Appeals (G.R No. 104235. Nov. 10. 1993) the Supreme Court applied
Philippine law in recovery of damages for breach of contract of carriage for the reason that it is the law of
the place where the contract was executed.

1993 BAR EXAMINATION

A a Filipino, executed a will in Kuwait while there as a contract worker. Assume that under the
laws of Kuwait, it is enough that the testator affix his signature in the presence of two witnesses and
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that the will need not be acknowledged before a notary public. May the will be probated in the
Philippines?

Yes. Under Articles 815 and 17 of the Civil Code,when a Filipino is in a foreign country, is
authorized to make a will in any of the forms stablished by the law of the country in which he be. Such 19
will may be probated in the Philippines. Hence, the formality of the execution of a will is governed by the
law of the place of execution. If the will was executed with the formalities prescribed by the laws of
Kuwait and valid there as such, the will is valid and may be probated in the Philippines.

1992 BAR EXAMINATION

X and Y entered into a contract in Australia, whereby it was agreed that X would build a
commercial building for in the Philippines, and in payment for the construction, Y will and convey his
cattle ranch located in the United States in favor of X. What law would govern: validity of the contract?

The validity of the contract will be governed ty Australian law under Article 17 of the Civil Code
as the place of its execution. It is the proper law of the contract; i.e., the system of law intended to
govern the entire contract, including its essential requisites, indicating the law of the place with which
the contract has its closest connection or where the main elements of the contract converge. Here, the
closest law to the conract is the Autralian law. Hence, it should govern its validity.

1991 BAR EXAMINATION

The Japan Air Lines (JAL), a foreigner corporation licensed to do business in the Philippines,
executed in Manila a contract of employment with Maritess Guapa under which the latter was hired as a
stewardess on the aircraft plying the Manila-Japan-Manila route. The contract specifically provides that
(1) the duration of the contract shall be two (2) years, (2) notwithstanding the above duration, JAL may
terminate the agreement at any time by giving her notice in writing ten (10) days in advance, and (3) the
contract shall be construed as governed under and by the laws of Japan and only the court in Tokyo,
Japan shall have the jurisdication to consider any matter arising from or relating to the contract. JAL
dismissed Maritess on the fourth month of her employment without giving her due notice. Maritess then
filed a complaint with the labor Arbiter for reinstatement, backwages and damages. The lawyer of JAL
contends that neither the Labor Arbiter nor any other agency or court in the Philippines has jurisdiction
over the case In view of the above provision (3) of the contract which Maritess voluntarily signed. The
contract is the law between her and JAL. Decide the issue.

The provisions in the contract are valid if they were not contrary to our prohivitive laws under
under Article 17 of the Civil Code. Here, the provisions on the the dismissal of Maritess without
complying with Philippine Labor law is invalid, and also, the provision that only the court of Tokyo shall
have the exclusive jurisdiction over any arising from the contract is against public policy. Hence, the
labor arbiter may take jurisdiction to protect the welfare of Marites under the circumstances.

[2] Where under a State’s own conflicts rule that domestic law of another State should apply,
may the courts of the former nevertheless refuse to apply the latter? If so, under what circumstance?

The third paragraph of Art. 17 of the Civil Code rovldes that:

“Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or promulgated, or by
determinations conventions agreed upon in a foreign country.”

Accordingly, a state’s own conflict of laws rule may. Exceptionally be inapplicable, given public
policy consicleraby the law of the forum. Going into the specific provisions of the contract in I would rule
as follows:

1. The duration of the contract is not opposed to Philippine law andiIt can therefore be valid as
stipulated;
2. Second provision to the effect that notwlthstanding duration, Japan Air Lines (JAL) may
terminate her aployment is invalid, being inconsistent with our Labor laws:
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3. .That the contract shall be construed as governed under and by the laws of Japan and only
the courts of Tokyo, Japan shall have jurisdiction, is invalid as clearly opposed to aforecited
third paragraph of Arts. 17 and 1700 of the Civil Code, which provides:

“Art. 1700, The relations between capital and labor are not merely contractual. They are so 20
impressed with public interest that labor contracts must yield to the common good. Therefore, such
contracts are subject to the special laws on .labor unions, collective bargaining, strikes and lockouts,
closed shop, wages, workingconditions, hours of labor and similar subjects. (UPLC ANSWER)

If the provisions in the contract are combination of invalid and valid. Hihimay-himayin. Yung
invalid shall be corrected by our law. The whole contract shall not be declared unenforceable.

1990 BAR EXAMINATION

If a will is executed by a testator who is a Filipino citizen, what law will govern if the will is
executed in the Philippines?

If the testator who is a Filipino citizen executes his will in the Philippines, Philippine law will
govern the form. If said Filipino testator executes his will in another country, the law of the countiy
where he may be or Philippine law will govern the formalities.

If a will is executed by a foreigner, for instance, a Japanese, residing in the Philippines, what
law will govern if the will is executed in the Philippines? And what law will govern if the will is executed
in Japan, or some other country for instance, the U.S. A.? Explain your answers.

If the testator is a foreigner residing in the Philippines and he executes his will in the
Philippines, the law of the country of which he is a citizen or Philippine law will govern the formalities. If
the testator is a foreigner and executes his will in a foreign country, the law of his place of residence or
the law of the countRy of which he is a citizen or the law of the place of execution, or Philippine law will
govern the formalities.

LECTURE

The formalities of wills shall be govern by the nationality law of the maker, the place of
execution or this Code – the Philippine law. The intrinsic validity is governed by the national law of the
maker.

1989 BAR EXAMINATION

Robert and Evelyn, both Filipinos, met in Los Angles, California. They agreed to get married on
June 10, 1989. On June 7,1989, Robert flew to New York due to an urgent business matter but
intended to return to Los Angeles on June 9, 1989, in time for the wedding. The business emergency of
Robert, however, lasted longer than he expected so that he failed to return to Los Angeles as planned In
order not to postpone the wedding, Robert immediately called his brother Val who was also residing at
Los Angeles to stand as his proxy at the wedding, which the latter did. Is the marriage of Robert and
Evelyn valid in the Philippines? Give your reasons. If the marriage was performed in accordance with the
laws of California and valid there, then the marriage is likewise valid in the Philippines.

Since the problem does not state the California law on marriage by proxy, the presumption in
Private International Law is that the California law is the same as the Philippine law. Therefore, the
marriage would be void. – UPLC

The marriage is valid. Under Art 17 of the Civil Code, contracts validly celebrated abroad are
valid here in our jurisdition provided that foreign laws, judgment promulgated or convention agreed
upon in foreign countries are not contrary to publicorder , public policy and good customs. Here, Robert
asked his brother to proxy on his marriage with Evelyn, and the practice is acceptable to California law.
Therefore, since marriage by proxy is not contrary to public order, public policy and good customs, our
jurisdiction may consider that marriage by proxy valid.

OBSERVANCE OF HONESTY AND GOOD FAITH

ACTING WITH JUSTICE, GIVING EVERYONE HIS DUE
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Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act
justice, give everyone his due, and observe honesty and good faith.

ELEMENTS
21
In order that liability may attach under the concept of abuse of rights, the following elements
must be present, to wit:

(a) the existence of a legal right or duty;

(b) which is exercised in bad faith, and

(c) for the sole intent of prejudicing or injuring another

There is no hard and fast rule that can be applied to ascertain whether or not the principle of
abuse of rights is to be invoked. The resolution of the issue depends on the circumstances of each.

INDEMNIFICATION FOR ILLEGAL ACTS

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.

ACTIONABLE ACTS

Art. 21. Any person who wilfully causes loss or injuiy to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.

Other relevant provisions

Art 2180. The obligation imposed by Article 2i76 is demandable not only for one’s own acts or is
responsible.

He owners and managers of an establishment or enterprise are likewise responsible for

damages :aused by their employees in the service of the branches in which the latter are employed or on
le occasion of their functions.

JURISPRUDENCE

IF A MORTGAGEE IS UNABLE TO OBTAIN POSSESSION OF A MORTGAGED PROPERTY FOR ITS

SALE ON FORECLOSURE, HE MUST BRING A CIVIL ACTION EITHER TO RECOVER SUCH
POSSESSION AS A PRELIMINARY STEP TO THE SALE, OR TO OBTAIN JUDICIAL FORECLOSURE

Uypitching, et al vs. Quiamco, G.R. No. 146522, December 6, 2006

X bought a motorbike from A by installment. To secure payment, the bike was motgage to A. X
could not pay and Z assumed the remaining obligation but also failed. Z told A that the bike was taken
by V. A went to V, and on his instruction, the policemen took the bike and repeatedly saying that ‘V is a
thief”. V filed an action for damages. Is there a cause of action against A?

Yes. True, a mortgagee may take steps to recover the mortgaged properly to enable it to enforce
or protect its foreclosure right thereon. There is, however, a well defined procedure for the recovery of
possession of mortgaged property: if a mortgagee is unable to obtain possession of a mortgaged property
for its sale on foreclosure, he must bring a civil action either to recover such possession as a preliminary
step to the sale, or to obtain judicial foreclosure. A failed to bring the proper civil action necessary to
acquire legal possession of the motorcycle. Instead descended on V’s house with policemen and ordered
the seizure of the motorcycle without a search warrant or court order. Worse, in the course of the illegal
seizure of the motorcycle, A even mouthed a slanderous statement. No doubt, A acted blatantly
disregarded the lawful procedure for the enforcement of his right, to the prejudice of violated the law as
well as public, morals, and transgressed the proper norms of human relations..’The basic principle of
human relations, embodied in Article 19 of the Civil Code.

GOOD FAITH IS PRESUMED AND HE WHO ALLEGES BAD FAITH HAS THE DUTY TO PROVE
THESAME
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Elizabeth L. Diaz vs. Georgina R. Encanto, et al. G.R. No. 171303; January 20,2016

X was a member of the faculty in a university. She filed an letter-application for sabatical leave.
The letter was forwarded to several officals unti it was denied due to shortage of teaching staff. Whilw
she was able to teach in the subsequent semester she was not able to recieve her salary for her refusal 22
to submit the Report for Duty Form. The SC affirmed the findings of the lower court that the denial of
the sabatical leave was justifiable due to shortage of teachingn staff and the requirement of submitting
the Form was no way illegal. She, then, filed with the RTC an action for damages against the
respondents claming that the latters conspired as tortfeasors in not paying her salaries. Whether the
respondents acted in bad faith when they resolved her application for sabbatical leave and witheld her
salaries.

No, Malice or barf faith is at the core of Art 19 of the Civil Code. Good faith refers to the state of
mind which is manifested by the acts of the individual concerned. It consists of the intention to abstain
from taking an unconscionable and unscrupulous advantage of another. It is presumed. Thus, he who
alleges bad faith has the duty to prove the same. Bad faith does not simply connote bad judgment or
simple negligence; it involves a dishonet purpose and some moral obloquy and conscious doing of a
wrong, a breach of known duty due to some motives or interest or ill will that partakes of the nature of
fraud. Malice connotes ill will or spite and speaks not in response to duty. It implies an intention to do
ulterior and unjustifiable harm. Malice is bad faith or bad motive.

Good faith is presumed and that the burden of proving bad faith rests upon the party alleging
the same.” Petitioner Diaz has failed to prove bad faith on the part of the respondents. There is nothing
in the records to show that the respondents purposely delayed the resolution of her application to
prejudice and injure her. She has not even shown that the delay of six months in resolving a sabbatical
leave application has never happened prior to her case. On the contrary, any delay that occurred was
due to the processing of said application took time.

ONE WHO MAKES USE OF HIS OWN LEGAL RIGHT DOES NO INJURY

Heirs of Purisima Nola, & et al vs. Cabansag, G.R. No. 161188, June 13,2003

X bought a property from A who held it only as trustee for V, married to Z. Z, through her Atty
M, demand that X to pay rentals until he vacates the premises. Atty M served several demand letters
and becuase of that, X allegedly suffered damages and was contrained to file a civil case for damages
pursuant to Art. 19 of the Civil Code. Is the action proper?

No. There is nothing on record which will prove that Z and her counsel, Atty. M, acted in bad
faith or malice in sending the demand letters to X. In the first place, there was ground for Z’s actions
since she believed that the property is still owned by her husband V and that X was illegally occupying
the same, She had no knowledge that spouses A violated the trust imposed on them by V and
surreptitiously sold a portion of the property to X. The bare fact that X claims ownership over the
property does not give rise to the conclusion that the sending of the demand-letters was done in bad
faith. Absent any evidence presented by X, bad faith or malice could not be attributed to Z since she was
only trying to protect their interests over the property. Moreover, there is no showing that Z and Atty.
M’s acts were done with the sole intention of prejudicing and injuring him. It may be true that X mental
anguish, serious anxiety and sleepless nights when he received the demand letters; however, there is a
material distinction between damages and injury.

Injury is the legal invasion of a legal right, while damage is the hurt, loss or harn which results
from the injury. Thus, there can be damage without injury in those instances in which the loss or harm
is not the result of a violation of a legal duty. In such cases, the consequences must be borne by the
injured person alone; the law affords no remedy for damages resulting from an act which does not
amount to a legal injury or wong. Those situations are often called damnum absque injuria. Z was
acting well within her rights when she instructed Atty. M to send the demand letters. She had to take all
the necessary legal steps to enforce her legal/equitable rights over the property occupied by X. One who
makes use of his own legal right does no injury. Thus, whatever damages are suffered by X should be
borne solely by him.
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THE EXERCISE OF A RIGHT, THOUGH LEGAL BY ITSELF, MUST NONETHELESS BE IN

ACCORDANCE WITH THE PROPER NORM

Cebu Country Club, Inc., et, al vs. Etizagaque, G.R. No, 160273, January 18, 2008
23
A Corp is a special company prorietary member of Z Club, Inc., designated B as special non-
proprietary member. The designation was aproved by Z club’s Board of directors. Seven years later, B
filed with Z club an application for proprietary membersship. It was denied. B ask for reconsideration.
The club did not answer. Several times, B’s inquiries were left to deft ears without any word from the
club. . Hence, B filed with the RTC a complaint for damages against Z Club, Inc. [a] Is Z Club, Inc. liable
to B for damages in disapproving his application as proprietary membership?

Yes, the Z Club, Inc. Board of Directors has the right to approve or disapprove an application for
proprietary membership. But such right should not be exercised arbitrarily. Articles 19 and 21 of the
Civil Code on the Chapter on Human Relations provide restrictioins.

In rejecting B’s application for propriety membership, Z violated the rules governing human
relations, the basic principles to be observed for the rightful relationship between human beings and for
the stability of social order. Z committed fraud and evident bad faith in disapproving Bs applications.
This is contrary to morals, good customs or public policy. Hence, Z club is liable for damages pursuant
to Article 19 relation to Article 21 of the same Code. It is clear that B was left groping in the dark
wondering why his application was disapproved. He was not even informed that a unanimous vote of the
Board members was’ required. When he sent a letter for reconsideration and an inquiry whether there
was an objection to his application, Z Club apparently ignored him. Certainly, B did not deserve this
kind of treatment Having been designated by A Corp as a special non-proprietary member of he should
have been treated with courtesy and civility. At the very least, they should have informed him why his
application was disapproved. The exercise of a right, though legal by itself, must nonetheless be in
accordance with the proper norm. When the right is exercised arbitrarily, unjustly or excessively and
results in damage to another, a legal wrong is committed for which the wrongdoer must be held
responsible.

[b] Can Z Club invoked the principle of damnum absque injuria, or damage without injury? No.

2011 BAR EXAMINATION

Roberto was in Nikko Hotel when he bumped into a friend who was then on her way to a
wedding reception sngheld in said hotel. Roberto alleged thathe wasthen by his Mend to join her at the
wedding reception carried the basket full of fruits which she was to the affair. At the reception, the
wedding coordinator of the hotel noticed him and asked him, allegedly in a loud voice, to leave as he was
not in the guest list. He retorted that he had been invited to the affair by his friend, who, however,
denied doing so. Deeply embarrassed by the incident, Roberto then sued the hotel for damages under
Articles 19 and 21 of the Civil Code. Will Roberto’s action prosper? Explain.

No, Roberto’s action will not prosper. The wedding coordinator did not abuse her right when she
asked him to leave the wedding reception since it was not proven that the employee bawled at him.
Likewise, Hotel Nikko could not be held liable for damages as its liability springs from the liability of its
employee and the wedding coordinator was not one of the hotel’s employees.

2009 BAR EXAM

Before migrating to Canada in 1992, the spouses Teodoro and Anita entrusted all their legal
papers ar documents to their nephew, Atty. Tan. Taking advantage the situation, Atty. Tan forged a deed
of sale in his favor. And in 2000, he succeeded in obtaining a TCT over the property in his name.
Subsequently, Atty. Tan sold the same property to Luis, who built an auto repair shop on the property.
In 2004, Luis registered the deed of conveyance, and title over the property was transferred in his name.
In 2006, the spouses Teodoro and Anita came to the Philippines for a visit and discovered what had
happened to their property. They immediately hire you as lawyer. What action or actions will you
institute in order to vindicate their rights? Explain fully.
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I will file a civil action for damages under Art 21 of the Civil Code for abuse of confidence repose to
him by the couple and for the fraudulent transfer of the title in his name and to recover value of the
property.

Any action against Luis will not prosper because lie is an innocent purchaser for value. The Title to 24
the land e bought was already in the name of the person who sold property to him and there is nothing
on the title which will make him suspect about the fraud committed by Atty Tan.

1998 BAR EXAMINATION

[1] In a 20-year lease contract over a building, the lessee is expressly granted a right of first
refusal should the lessor decide to sell both the land and building. However, the lessor sold the property
to a third person who knew about the lease in fact agreed to respect it. Consequently, the lessee brings
an action against both the lessor-seller and the buyer (a) to rescind the sale and (b) to compel specific
performance of his right of first refusal in the sense that the lessor should ordered to execute a deed of
absolute sale in favor of the lessee at the same price. The defendants contend that the plaintiff can
neither seek rescission of the sale nor compel specific performance of a “mere” right of first refusal.
Decide the case.

The action filed by the lessee, for both rescission of the offending sale and specific performance of the right
of first refusal which was violated, should prosper. The ruling fn Equatorial Realty Development, Inc. us.
Mayfair Theater, Inc. (264 SCRA 483). A case with similar facts, sustains both rights of action because the
buyer in the subsequent sale knew the existence of right of first refusal, hence in bad faith.

(This is the alternative answer under UPLC)

The action to rescind the sale shall not prosper. The principle of right of first refusal is not
founded on contracts but on a quasi-delictual relationship covered by the principles of human relations
and unjust enrichment. Under Art 19 of the Civil Code, every person in the exercise of his rights must
give everyone his due. Here, the lessor did not give due regard to the right of the lessee when it sold the
building which the latter is renting notwithstanding the provision of the “right of refusal” in the contract.
Hence, the lessor is liable for damages under quasi-delict.

Note: The right of right refusal is not contractual kahit nasa sitpulation ng contract. The violation of that
stipulation is a tortious act under qausi-delict. Hence, the proper action is not recission of the sale but an
action for damages.

If the third party is in bad faith, the sale can be rescinded but if he is not, the sale cannot be
rescinded. The proper action is for the lessee to file for an action for damages based on quasi-delict.

[2] Juan and his sister Juana inherited from their mother two parcels of farmland with exactly
the same areas. For convenience, the Torrens certificates of title covering both lots were placed in Juan’s
name alone. In 1996, Juan sold an innocent purchaser one parcel in its entirety without knowledge and
consent of Juana, and wrongfully kept for himself the entire price paid. What rights of action, if any.
does Juana have against Juan and/or the buyer?

Juana may claim damages and reimbursement of the value of the lot. Under Article 21 of the
Civil Code, any person who willfully causes loss to an another that is contrary to morals shall
compensate for the damage done. Here, the selling of the property without informing the owner and
keeping the value for himself is contrary to morals. Hence, he is liable for damages and has to reimburse
the value of the property sold.

1996 BAR EXAMINATION

Rosa was leasing an apartment in the city. Because of the Rent Control Law, her landlord could
not increase the rental as much as he wanted to nor terminate her lease as long as she was paying her
rent. In order to force her to leave the premises, the landlord stopped making repairs apartment, and
caused the water and electricity services to be disconnected. The difficulty of living without electricity
and running water resulted in Rosa’s suffering a nervous breakdown. She sued the landlord for actual
and moral damages. The action prosper? Explain.
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Yes, the action shall prosper. Under Article 21 of the Civil Code, any person who willfully causes
injury to another in a manner that is contrary to morals shall compensate the latter for damges. Here,
the acts of the landlord in not keeping the building up-keep, and non-payment of water and electricity
bill caused injury to the tenant. Hence, the landlord is liable for damages.
25
UNJUST ENRICHMENT

Art. 22. Every person who through an act of by another, or any other means, acguires or comes
into possession of something at the expense of the latter without just or legal ground, return the same to
him.

Art. 23. Even when an act or event causing damage to another’s property was not due to the fault
or negligence of the defendant, the latter shall be Lble for indemnity if through the act benefited.

JURISPRUDENCE

WHILE THE TERMS AND PROVISIONS OF A VOID CONTRACT CAN NOT BE ENFORCED, IT DOES
NOT PRECLUDE ADMISSIBILITY OF THE CONTRACT AS EVIDENCE TO PROVE THAT OCCURRED
IN THE COURSE OF- EXECUTING THE CONTRACT.

Tomas F. Tan, Jr. vs. Jose 6. Hosana G.R. No. 190846; February 03.2016

The respondent X was the husband of Y. The couple together owned a parcel of land. The said
land was later sold by Y to petitioner W. X, while in Japan, was informed of the said sale prompting the
latter to file a Complaint for Annulment of Sale/Cancellation of Title/ Reconveyance and Damages
against Y, W, and the Register of Deeds of Naga City. In the complaint, X averred that while he was
working in Japan, Y, without his consent and knowledge, conspired with W to execute the SPA by
forging X’s signature making it appear that he had sold the property to W. The sale was annuled and the
couple was ordered to return the consideration of P200,000 as stated in the Deed of Sale despite of W’s
allegation that he paif P700,000 for the lot. W/n the void contract can be used as the basis for the
amount of consideration paid?

Yes. While the terms and and provisions of a void contract cannot be enforced since it is deemed
inexistent, it does not preclude the admissibility of the contract as evidence to prove matters that
occured in the course of executing the contract. The deed of sale as documentary evidence may be used
as a means to ascertain the truthfulness of the consideration stated and its actual payment. The
purpose of introducing the deed of sale as evidence is not to enforce the terms written in the contract,
which is an obligatory force and effect of a valid contract. The deed of sale, rather, is used as a means to
determine matters that occurred in the execution of such contract. Further, Tomas failed to substantiate
his claim that he paid to Milagros the amount of P 700,000, instead of the amount of P 200,000 stated
in the deed of sale. No documentary or testimonial evidence to prove payment of the higher amount was
presented apart from Tomas’ sole testimony. His sole testimony is self-serving and insufficient to
unequivocally prove that Milagros received P 700,000 for the subject roperty.

LECTURE

Kahit void contract, it can still be used as evidence to prove the circumstances that lead to the
execution of that contract: like the truthfuleness of the agreed consideration. So be wary sa pag-uunder
value when you underwrite as deed of sale. The court, in case of doubt, will only admit the consideration
written on the deed of sale and not what the value of money actually paid for. So better to have a
memorandum of agreement that the parties have agreed to a lower value for tax purposes. Though
illegal, but in cases like this, the agrieved party has something to hold on as evidence. The MOA is void
but it still can be used as evidence for the amount of actual consideration paid. Void contract as
evidence has never been asked in the bar.

RIGHT TO PRIVACY

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts, though they may not constitute a criminal offense shall
produce a cause of action for damages, prevention and other relief:
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(1) Prying into the privacy of another’s residence;

(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition 26

JURISPRUDENCE

THE “PRYING INTO THE PRIVACY OF ANOTHER’S’ READENCE,” THEREFORE, COVERS PLACES,
LOCATIONS, OR EVEN SITUATIONS WHICH AN INDIVIDUAL CONSIDERS AS PRIVATE.

Spouses Hing vs. Choachuy, Jn, GRNo. 179736, June 26,2013

May the provision in Art 26 be appicable to non-residencial property?

Yes. The right to privacy under Article 26(1) of the Civil Code covers business offices where the
public are excluded therefrom and only certain individuals are allowed to enter. Article 26(1) of the Civil
Code, on the other hand, protects an individual’s right to privacy and provides a legal remedy against
abuses that may be committed against him by other individuals. Thus, an individual’s right to privacy
under Article 26(1) of the Civil Code should not be confined to his house or residence as it may extend to
places where he has the right to exclude the public cor deny them access. The “prying into the privacy
of another’s’ readence,” therefore, covers places, locations, or even situations which an individual
considers as private. And as long as his right is recognized by society, other individuals may not infringe
on his right to privacy. The CA, therefore, erred in limiting the application of Aiticle.26(l) of the Civil
Code only to residences.

I remember that Art 26 was already asked in the Bar. I just dont know when.

INDEPENDENT CIVIL ACTION

Art. 31. When the cavil action is based on an obligation not arising from the act or omission
complained of as a felony, such civil action may proceed independently of the criminal proceedings and
regardless of the result of the latter.

2000 BAR EXAMINATION

Lolita was employed in a finance company. Because she could not account for the funds
entrusted to her. She was charged with estafa and ordered arrested. In order to secure her re lease from
jail, her parents executed a promissory note pay the finance company the amount allegedly
misappropriated by their daughter. The finance company then executed an affidavit of desistance which
led to the withdrawal of the information against Lolita and her release from Jail. The parents failed to
comply with their promissory and the finance company sued them for specific performance. Will the
action prosper or not?

The action will not prosper. The consideration in the promisory note is invalid. Here, the
consideration for the promissory note was the non-prosecution of the because the information has
already been filed in court and to do it is illegal. Hence, the promissory note is invalid and may not be
enforced by court action.

IMPAIRMENT OF RIGHTS AND LIBERTIES

Kahit na ang act ng isang officer is not tainted with bad faith or malice, he could still be held
liable if the his act violates one’s constitutional rights and liberties.

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstracts, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages:

[1] Freedom of religion;

[2] Freedom of speech;

[3] Freedom to write for the press or to maintain a periodical publication;

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(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant’s act or omission 27
constitutes a criminal offense, the aggrieved party a right to commence an entirely separate and distinct
civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted) and may be proved by a preponderance of evidence.

JURISPRUDENCE

A PUBLIC OFFICER WHO DIRECTLY OR INDIRECTLY VIOLATES THE CONSTITUTIONAL RIGHTS

OF ANOTHER, MAY BE VALIDLY SUED FOR DAMAGES UNDER ARTICLE 32 OF THE CIVIL CODE
EVEN IF HIS ACTS WERE NOT SO TAINTED WITH MALICE OR BAD FAITH

Vinzons Choto vs. Fortune Tobacco Corp., G.R. No. 141309, June 19,2007

May a public officer validly sue in his/her private capacity for acts done in connection with the
discharge of his/her functions?

Yes. The general rule is that a public officer is not liable for damages which a person may suffer
arising from the ’just performance of his official duties and within the scope of his assigned tasks. An
officer who acts within his authority to administer the affairs of the office which he/she heads is not
liable for damages that may have been caused to another, as it would virtually be a charge against the
Republic, which is not amenable to judgment for monetaiy claims without its consent. However, a public
officer is by law not immune from damages in his/her personal capacity for acts done in bad faith
which, being outside the scope of his authority, are no longer protected by the mantle of immunity for
official actions. A public officer who directly or indirectly violates the constitutional rights of another,
may be validly sued for damages under Article 32 of the Civil Code even if his acts were not so tainted
with malice or bad faith. Thus, a public officer may validly sued in his/her private capacity for acts done
in the course of the performance of the functions of the office, where said public officer.

(1) acted with malice, bad faith, or negligence; or

(2) where the public officer violated a constitutional right of the plaintiff.

PREJUDICIAL QUESTION IN CIVIL LAW

Art. 36. Prejudicial questions, which must be decided before any criminal prosecution may be
instituted or may proceed, shall be governed by rules which the Supreme Court shall promulgate and
which shall not be in conflict with the provisions Code.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent
of the issue involved therein. It is a question based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence of the accused.

ELEMENTS

For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the
criminal proceedings until the final resolution of the civil, the following requisites must be present:

1) the civil case involves facts intimately related to those upon which the criminal prosecution
would be based;

2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the
accused would necessarily be determined; and

3) jurisdiction to try said question must be lodged in another tribunal.

EFFECTS

The existence of a prejudicial question suspends the criminal action. The rationale behind the
principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting
decisions.
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DOCTINE

The outcome of the civil case for annulment of petitioner’s marriage to private respondent had
no bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at 28
the time the second marriage is contracted. A marriage, even one which is void or voidable, shall be
deemed valid until declared otherwise in a judicial proceeding. (Te v. C.A.; G.R.NO. 126746, Nov.29,
2000)

PART II
THE LAW ON PERSONS

JURIDICAL CAPACITY VS CAPACITY TO ACT

Art. 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts with
legal effect, is acquired and may be lost.

1996 BAR EXAMINATION

Distinguish juridical capacity from capacity to act.

According to Article 37 of the Civil Code, juridical capacity is the fitness to be the subject of legal
relations while capacity to act is the power or to do acts with legal effect. The former is inherent in every
natural person Is lost only through death while the latter is merely acquired and may be lost even before
death.

Juridical capacity, as distinguished from capacity to act

(a) the former is passive while the latter is active

(b) the former is inherent in a person while the latter is merely acquired

(c) the former is lost only through death while the other maybe lost through death or restricted
by causes other than death, and

(d) the former can exist without capacity to act while the latter cannot exist without juridical
capacity.

UPLC ANSWER

WHEN CIVIL PERSONALITY BEGINS IN NATURAL PERSONS

Art. 40. Birth determines personality*; but the conceived child shall be considered born for all
purposes that are favorable to it, provided, it be born later with the conditions specified in the following
article.

Superseded by Art. 5, P,D. No. 603 (The Child and Youth Welfare Code), which provides that:
“The civil personality of the child shall commence from time of his conception, for all purposes
favorable to him, subject to the requirements of Article 41 of the Civil Code.”

WHEN A CHILD IS CONDSIDERED BORN

Art. 41. For civil purposes, the fetus is consid 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 seven months, it is not
deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.

2014 BAR EXAMINATION

Mario executed his last will and testament where he acknowledges the child being conceived by
his live-in partner Josie as his own child; and that his house and lot in Baguio City be given to his
unborn conceived child. Are acknowledgment and the donation mortis causa valid? Why? (4%)
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Yes, the donation is valid. According to the art 5 of PD 603, the civil personality of the child
shall commence from the time of its conception for all the purposes favorable to him, subject to the
requirement of Art 41 of the Civil Code. Here, the last will and testament is favorable to the child who at
the time of execution was being conceived by the mother. Hence, the acknowledgment and donations are
29
valid provided the child was born in accordane with Art 41 of the civil code.

2012 BAR EXAMINATION

Ricky donated one Million pesos to the unborn child of his pregnant girlfriend, which she
accepted. After six (6) months of pregnancy, the fetus was born and baptized as Angela. However, Angela
died 20 hours after birth. Ricky sought to recover the P1M. Is Ricky entitled to recover? Explain. (5%)

Yes, Ricky is entitled to recover the PI Million. According to the art 5 of PD 603, the civil
personality of the child shall commence from the time of its conception for all the purposes favorable to
him, subject to the requirement of Art 41 of the Civil Code. Here, the child didn’t survived for at least 24
hours. Hence, it cannot be considered born. The donation of 1milion should be returned to the donor.

2008 BAR EXAMINATION

At age 18, Marian found out that she was pregnant. She insured her own life and named her
unborn child as her sole beneficiary. When she was already due to give birth, she and her boyfriend
Pietro, the father of her unborn child, were kidnapped in a resort in Bataan where they were
vacationing. The military gave chase and after one week, they were found in an abandoned hut in
Cavite. Marian and Rietro were hacked with bolos. Marian and the baby she delivered were both found
dead, with the baby’s umbilical cord already cut. Pietro survived. Can Marian’s baby be the beneficiaiy of
the insurance taken on the life of the mother?

Yes. According to the art 5 of PD 603, the civil personality of the child shall commence from the
time of its conception for all the purposes favorable to him, subject to the requirement of Art 41 of the
Civil Code. Here, the designation as beneficiary to the child is favorable to him. Hence, it is valid.

Between Marian and the baby, who is presumed to died ahead?

Marian is presumed to have survived. Under Rule 131, Sec. 3, (jj) of the Rules of Court, as
between the baby who was under 15 years old and Marian who was 18 years old, Marian is presumed to
have survived. However, this is only a disputable presumptions which may be contradicted and
overcome by other evidence.

Will Pietro, as surviving biological father of the be entitled to claim the proceeds of the life
insurance on the life of Marian?

Since the baby did not acquire any right under the insurance contract, there is nothing for
Pietro to inherit.

2000 BAR EXAMINATION

Cristy and her late husband Luis had two children, Rose and Patrick. One summer, her mother-
in-law, aged 70, took the two children, then aged l0 and 12, with her on a boat trlp to Cebu.
Unfortunately, the vessel sank enroute, and the bodies of the three were never found. None of the
survivors ever saw them on the water. On the settlement of her mother-in-law’s estate, Cristy files a
claim for a share of her estate on the ground that the same was inherited by her children from their
grandmother in representation of their father, and she inherited the same from them. Will her action
prosper? (2%)

No, her action will not prosper. According to Article 43 of the Civil Code, in the absence of proof,
when two or more persons who are to succeed each othe, they are presumed to have died at the same
time and there shall be no transmission of rigths to one another. Here, the grandmother and children
died and no proof can be adduced who among the three have died first. Hence, there is no transmission
of rights from one another.

1999 BAR EXAMINATION

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[1] Elated that her sister who had been married for five years was pregnant for the first time,
Alma donate P100,000 to the unborn child. Unfortunately, the baby died one hour after delivery. May
Alma recover the P100,000.00 that she had donated to said baby? Explain. (5%)

No. According to the art 5 of PD 603, the civil personality of the child shall commence from the 30
time of its conception for all the purposes favorable to him, subject to the requirement of Art 41 of the
Civil Code. Here, the baby was born in accordance with Art 41. Hence, the child had the juridical
capacity to be the donee of P100,000.00

[2] Mr.and Mrs. Cruz, who are childless, met with a serious motor vehicle accident with Mr.
Cruz at the wheel and Mrs. Cruz seated beside him, resulting in the instant death of Mr. Cruz. Mrs.
Cruz was still alive when help came but she also died on the way to the hospital. The couple acquired
properties worth One Million (P1,000,000.00) which are being claimed by the parents of both spouses in
equal shares. Is the claim of both sets of parents valid and why? (3%)

No, the claim of both parents is not valid. There is no doubt as to who died first as contemplated
in Art 43 of the Civil code. Here, Mrs Cruz died later after Mr. Cruz. Hence, she inherited the half of Mr.
Cruz’s estate and half shall go to Mr. Cruz parents. The P1,000,000 shall be split to two. The half as
Mrs. Cruz share in the community an the other half as the estate of Mr. Cruz. The P500thou belongs to
Mrs. Cruz and half of Mr Cruz estate which is P250thou. The other P250thou shall be inherited by his
parents. When Mrs. Cruz died, she was succeeded by her paras her intestate heirs. They will inherit all
of her estate consisting of her 0.5 Million half share in the absolute community and

[3] Suppose in the preceding question, both Mr. And Cruz were already dead when help came,
so that it could say who died ahead of the other, would you answer be the same to the question as to
who are entitled to the properties of the deceased couple?

According to Art 43 of the Civil Code, in the absence of proof as to the time of death of each of
the spouses, it is presumed they died at the same time and no transmission of rights from one to the
other is deemed to have taken place. Hence, each of them is deemed to have an estate valued at
P500,000.00, or one-half of their conjugal property of P1 million. Their respective parents will thus
inherit the entire PI Million in equal shares, or P500,000.00 per set of parents.

[8] Mr. Luna died, leaving an estate of Ten Million (P10,000,000.00) Pesos. His widow gave birth
to a child four months after Mr. Luna’s death, but the child died five hours after birth. Two days after
the child’s death, the widow of Mr. Luna also died because she had suffered from difficult child birth.
The estate of Mr. Luna is now being claimed by his parents, and the parents of his widow. Who is
entitled to Mr. Luna’s estate and why? (5%)

Assuming that the child had a uterine life of seven months, it excludes the parents of Mr. Luna
from the share of the inheritance. When the child died, his share in the estate of Mr. Luna is transferred
to his mother. When the latter died, her estate is inherited by her parents subject to reserve troncal in
proper cases.

2003 BAR EXAMINATION

If a pregnant woman passenger of a bus were to suffer an abortion following a vehicular

accident due to the gross negligence of the bus driver, may she and her husband claim damages from
the bus company for the death of their unborn child? Explain.

No, the spouses cannot recover actual damages in the form of indemnity for the loss of life of the
unborn child. The child had never acquired juridical capacity and could not be considered a person
since he were not born. Also, the damages prayed for are not for the benefit of the child but for
indemnity for suffering cause to the parents.

DOCTRINE

The unborn child is not yet considered a person and law allows indemnity only for loss of life of
persons. The mother, however, may recover damages for the bodily injury suffered from the loss of the
fetus which is considered part of her internal organs. The parents may also recover damages for injuries
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that are inflicted directly upon them, e.g., damages for mental anguish that attended the loss of le
unborn child. Since there is gross negligence, exemplary famages can also be recovered. (Geluz v. CA, 2
SCRA 801 risen).

2009 BAR EXAMINATION 31

Dr. Lopez, a 70-year old widower, and his son Roberto both died in a fire that gutted their home
while they were their air-conditioned rooms. Roberto’s wife, Marilyn, and their two children were spared
because they werw in the province at the time. Dr. Lopez left an estate P20M and a life insurance policy
in the amount of P 1M with his three children — one of whom is Roberto – as beneficiaries.

Marilyn is now claiming for herself and her children her husband’s share in the estate left by
Dr. Lopez, and her husband’s share in the proceeds of Dr. Lopez’s life insurance policy. Rule on the
validity of Marilyn’s claims with reasons.

As to the Estate of Dr. Lopez:

Marilyn is not entitled to a share in the estate of Dr. Lopez. Under Art 43 of the Civil Code, when two
people died together and there is no proof to adduce who between the two have died first it it presumed
that they have died at the same time and there shall be no transmission of right from one another. Here,
there was no proof who between the two have died first. Hence there was no transmission of rights.
Marilyn cannot claim that Roberto has inherited from Dr. Lopez which she and her children could have
inherited therefrom. The children of Roberto, however, will succeed their grandfather, Dr. Lopez, in
representation of their father Roberto and together will receive 1/3 of the estate of Dr. Lopez since their
father Roberto was one of the three children of Dr. Lopez. Marilyn cannot represent her husband
Roberto because the right is not given by law to a surviving spouse,

As to the proceeds of the insurance on the life of Dr. Jopes

Since succession is not involved as regards the insurance contract, the provisions of the Rules
of Court (Rule 131, Sec. 3, [jj] [5]) on survivorship shall apply. Under the Rules, Dr. Lopez, who was 70
years old, is presumed to have died ahead of Roberto, who is presumably between the ages of 15 and 60.
Hence, the insurance proceeds were vested to Roberto and to other beneficiaries. That part of roberto’s
share shall accrue to his estate which shall be inherited by Marilyn and her children in equal share.

PRESUMPTION OF SURVIVORSHIP

Art. 43. 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 rights from one to the other. (33)

PRESUMPTION OF DEATH – ORDINARY ABSENCE

Art. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the of seventy-five years, an absence of five years shall be
sufficient in order that his succession may opened.

PRESUMPTION OF DEATH – QUALIFIED OR EXTRAORDINARY ABSENCE

Art, 391- The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
lot been heard of for four years since the loss of the or aeroplane;

(2) A person in the armed forces who has taken in war, and has been missing for four years;
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(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

Art. 392. If the absentee appears, or without earing his existence is proved, he shall recover his
property in the condition in which it may be found and the price of any property that may have been 32
alienated or the property acquired therewith; but he cannot claim either fruits or rents.

PRESUMPTION OF SURVIVAL IN RULES OF COURT

(GINAGAMIT ITO SA PAG-CLAIM NG INSURANCE PROCEEDS KUNG WALANG EBIDENSA KUNG
SINO ANG UNANG NAMATAY)

Art 131 Sec (jj) of the Rules of Court

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

2017 BAR EXAMINATION

Eli and Fely’s marriage solemnized seven years after the disappearance of Chona, Eli’s previous
spouse, after the plane she had boarded crashed in the West Philippine Sea. Was the marriage valid?

If the marriage was celebrated under the New Civil Code, the marriage would be valid, as no
declaration of presumptive death is necessary under Article 391 of the said Code.

Art 391- The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has lot been heard of for four years since the loss of the or aeroplane; Here, for all purposes,
after the lost for more than 4 years, Eli could legally contract a subsequent marriage.

1998 BAR EXAMINATION

Jaime, who is 65, and his son, Willy, who is 25 died in a plane crash. There is no proof as to who
died first. Jaime’s only surviving heir is his wife, Julia, who is also Willy’s mother. Willy’ss surviving
heirs are his mother. Julia and his wife Wilma. In the settlement of Jaime’s estate, can Wilma
successfully claim that her late husband, Willy had a hereditaiy share since he was much younger than
his father and, should be presumed to have survived longer?

No, Wilma cannot successfully claim that Willy had a hereditary share in his father’s estate.
Under Art. 43, Civil Code, two persons “who are called to succeed other” are presumed to have died at
the time time, in the absence of proof as to which of them died first. Here, there were no proof that
Jaime died first. Hence, there was no transmission of rights for both of them are presumed to have died
simultaneously. Wilma cannot claim Willy’s share from the the estate of Jaime.
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Suppose Jaime had a life Insurance policy with his wife, Julia, and his son, Willy, as the
beneficiaries. Can Wilma successfully claim that one-half of the proceeds should belong to Willy’s
estate?

Yes. The Ruled of Court provided for disputable presumptions on who would have died first 33
between two persons in case of accident for any purpose other than succession. Here, the presumption
is that Jaime died,being 70 years old, have died ahead of Willy. The right to insurance proceeds would
is vested to his beneficiaries and the share of Willy has accrued to his estate which his heirs can divide
in equal share.

1991 BAR EXAMINATION

(a) For purposes of succession, when is death deemed to occur or take place?

[1] Death as a fact is deemed to occur when it actually takes place.

[2] Death is presumed to take place in the circumstances under Arts. 390-391 of the Civil Code.

[3] The time of death is presumed to be at the expiration of the 10-year period as prescribed by Article
390 and at the moment of disappearance under Article 391.

(b) May succession be conferred by contracts or acts Inter vivos? Illustrate. Article 1080.

Art 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition
shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or
manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering
that the legitime of the other children to whom the roperty is not assigned, be paid in cash.

Edna, Lisa at Nena, making kayo. Itong lupa kong isang hektarya ay aking hahatiin sa 4, kasama na
yung anak kong sa labas na sina Melay at Meloy. Meron kayong tig-2500 square meters at si Melay at
Meloy 2500 sq. meter din. Eto ang mapa, nilagyan ko na nga hatian at may mga pangalan na ninyo ang
mga parte ninyo. Pirmahan na rin ninyo itong Project of Partition.

Ayan yun. Inter vivos na hatian ng mamanahin.

2015 BAR EXAMINATION

Mrs. L was married to a ship captain who worked for an international maritime vessel. For her
and her family’s support, she would claim monthly allotments from her husband’s company. One day,
while en route from Hong Kong to Manila, the vessel manned by Captain encountered a severe typhoon
at sea. The captain was able to send radio messages of distress to the head office until all
communications were lost. In the weeks that followed, the search operations yielded debris of the lost
ship but the bodies of the crew and the passengers were not recovered, The company thereafter paid out
the death benefits to all the heirs of the passengers and crew. Mrs. L filed a complaint demanding that
her monthly allotments continue for the next four years until her husband may be legally presumed
dead because of his absence. If you were the magistrate, how would you rule?

I would rule against Mrs. L. Although the law on Art 391 of Civil Code does not indicate the
exact date of the death of the person under suchcircumstances provided, but under Art 10 of the same
Code states that in case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail. Here, Mrs. L had accepted the death benefits for
the lost of her husband, and at the same time wanted allotments to be continued for next 4 years. If we
allow that, that would do injustice on the part of the employer for no one should be compensated for the
work not done. Simply said, no wok no pay. Hence, in the interest of justice and fair play, Mrs. L
contention must fail.

[When a person disappears under circumstances involving danger of death as enumerated in Article 391
of the Civil Code, the death of the person is presumed to have taken place at the beginning of the four
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year period provided in said article. In this case, Captain L disappeared while on board a vessel lost
during a sea voyage, and thus is presumed dead when the vessel was lost at sea. Hence, Mrs. L is not
entitled to the monthly allotments for the next four years. UPLC]

Part III 34
OTHER CIVIL LAW CONCEPTS
CIVIL LAW SYSTEMS VS. COMMONLAW SYSTEM

[1] How would you compare the Civil Law system In its governance and trend with that of the Common
Law system?

Common law refers to the traditional part of the law distinct from legislation; it refers to the
universal part of law as distinct from particular local customs (Encyclopedia Americana Vol. 71). On the
other hand, civil law is understood to be that branch of law goveming the relationship of persons in
respect of their personal and private interests as distinguished from both public and international laws.
In common law countries, the traditional responsibility has for the most part been with the
judges; in civil law countries, the task is primarily reposed on the lawmakers. Contemporary practices,
however, so indicate a trend towards centralizing that function to professional groups that may, indeed,
sec the gradual assimilation in time of both systems.

In Civil Law, the statutes theoretically take precedence over court decisions Interpreting them;
while in Common Law, the court decisions resolving specific cases are as law rather than the statutes
themselves which at the start, merely embodiments of case law. Civil Law code law or written law. While
Common Law is case law. Civil Law adopts the deductive method – from the general to particular, while
the Common Law uses the inductive approach – from the particular to the general. Common law relies
equity. Civil Law anchors itself on the letter of the law. The civilists are for the judge-proof law even
common law is judge-made law. Civil Law judges are merely to apply laws and not interpret them.

RIGHT OF FIRST REFUSAL

2008 Dux leased his house to Iris for a period of 2 years, at the rate of P25.000.00 monthly,
payable annually in advance. The contract stipulated that it may be renewed for another 2-year period
upon mutual agreement of the parties. The contract also granted Iris the right of first refusal to
purchase the property at any time during the lease, if Dux decides to sell the property at the same price
that the property is for sale to a third party. Twenty-three months after execution of the lease contract,
Dux sold the house to his mother for P2 million. Iris claimed that the sale was a breach of her right of
first refusal. Dux said there was no breach because the property was sold to his mother who is not a
third party. Iris filed an action to rescind the sale and to compel Dux to sell the property to her at the
same price. Alternatively, she asked the court to extend the lease for another 2 years on the same terms.

The action for recission shall prosper. Under Art 19 of the Civil Code, every person in the
exercise of his rights must give everyone his due. Here, Dux did not give due regard to the right of the
lessee when it sold the house to his mother notwithsatanding the provision of the “right of refusal” in the
lease contract. Hence, the lessor is liable for damages and he can be compelled to sell the house at the
same price as it was sold to his mother. (not anymore compelling. See the below answer) However, the
court cannot grant the extension of lease when the other party refuse to extend the period of lease as
stipulated in the contract.- UPLC

Another answer. This is the better answer.

The action shall prosper but only for damages. The right of first of refusal is not a contract
affecting the thing of the sale but only the right of the party to buy it first. Hence, it could not be a basis
to annul the contract of sale. However, the party who breached the contract shall be liable for moral
damages under Article 19 and 21.
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1998 [1] In a 20-year lease contract over a building, the lessee is expressly granted a right of
first refusal should the lessor decide to sell both the land and building. However, the lessor sold the
property to a third person who knew about the lease in fact agreed to respect it. Consequently, the
lessee brings an action against both the lessor-seller and the buyer (a) to rescind the sale and (b) to
compel specific performance of his right of first refusal in the sense that the lessor should ordered to 35
execute a deed of absolute sale in favor of the lessee at the same price. The defendants contend that the
plaintiff can neither seek rescission of the sale nor compel specific performance of a “mere” right of first
refusal. Decide the case.

The action shall prosper. Under Art 19 of the Civil Code, every person in the exercise of his
rights must give everyone his due. Here, the lessor did not give due regard to the right of the lessee
when it sold the building which the latter is renting notwithsatanding the provision of the “right of
refusal” in the lease contract. Hence, the lessor is liable for damages and he can be compelled to sell the
building at the same price as it was sold to the buyer. – UPLC

Better answer.

The action shall prosper but only for damages. The right of first of refusal is not a contract
affecting the thing of the sale but only the right of the party to buy it first. Hence, it could not be a basis
to annul the contract of sale. However, the party who breached the contract shall be liable for moral
damages under Article 19 and 21.

JOINT VENTURE

In this jurisdiction, is joint venture (i,e., a group of corporations contributing resources for a
specific project and sharing the profits therefrom) considered a partnership?

Yes. The Supreme Court has ruled that a joint venture may be considered a species of
partnership (Aurbach v. Sanitary Wares Manufacturing Corp., GR.No.75875, December 15,1989; Philex
Mining v. CIR, G.R.No. 148187, April 16,2008). It has also ruled that “a joint venture is hardly
distinguishable from, and may be likened to, a partnership since their elements are similar, i.e.,
community of interests in the business and sharing profits and losses. Being a form ’of partnership, a
joint venture is generally governed by the law on partnerships” (Litonjuo v. Litonjua, G.R. Nos. 166299-
300, December 13,2005).

PRESUMPTION OF SURVIVAL IN RULES OF COURT

Art 131 Sec (jj) of the Rules of Court

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

In contrast with Art 43 of the Civil Code

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Art. 43. If there is a doubt, as between two or persons who are called to succeed each other, 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. (33)
----------------xxx---------------- 36

Article 43 of the Civil Code ay para sa manahan (succession).

X and A are father and son, they died in a plane crash. The law presumed them to die
simultaneously. It means that A did not inherit from X and X did not inherit from A except there is a
proof that one died before the other. Let say X was able to make a call and then he died. In that case, X
inherited from A.

Rule 131 (jj) of the Rules of Court shall be refered to if the case does not involve succession. A good
example is insurance.

X, the father insured himself and designate Y as his beneficiary. Y has a wife and a son. Both X
and Y died in a plane crash. All passengers died instantly. Sunog lahat ang katawan.

In Succession under Art 43, the presumtion is that both X and Y died simultaneously. No
transmission of rights from one another. However, for the sake of who will get the insurance proceeds,
the law will consider the age of the persons involved.

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

Applying the above provision where X was 61 and Y was 30 when they died, Y is deemed to have
survived and his estate shall include the insurance proceeds. But take note that this is only a
presumption and it can be overturned by evidence. If X were able to call before he died, then Y’s estate
have no right in the insurance proceeds because there was a proof (the call) that he died before X. The
insurance proceeds shall become part of X’s estate.
CONFLICTS OF LAWS
1994 BAR In Private International Law (Conflict of Laws) What is:

l) Cognovit?

2) A borrowing statute?

3) Characterization?

BORR0WING STATUTE, concept

A legislative exception to the conflict-of-iaws rule holding that a forum state must apply its own
statute of limitations; It specifies the circumstances in which a forum state may adopt another state’s
statute of limitations. The laws of the state or jurisdiction used by another stale in deciding conflicts
questioned involved in the choice of law.

COGNOVIT, concept

Cognovit refers to an acknowledgment of debt or liability in the form of a confessed judgment. It

is a confession of judgment whereby a portion of the complaint is confessed by the defendant who denies
the rest thereof. It is called a “statement of confession”. Oftentimes, it is referred to as a “power of
attorney” - it is the written authority of the debtor and his direction to the clerk of the district court, or
justice of the peace to enter judgment against the debtor as stated therein.

Cognovit is a plea in an action which acknowledges that the defendant did undertake and
promise as the plaintiff in its declaration has alleged, and that it cannot deny that it owes and unjustly
detains from the plaintiff the sum claimed by him in his declaration, and consents that judgment be
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entered against the defendant for a certain sum. Cognovit is a note authorizing a lawyer for confession of
judgment by defendant.

37
CHARACTERIZATION, concept

It is a process of determining under what category a certain set of facts or rules falls. It is
otherwise called “classification” or “qualification”. It is the process of assigning a disputed question to its
correct legal category.

1) What is the doctrine of forum non conveniens?

[1] Forum non conveniens is a principle in “Private. International Law that where the ends of
justice strongly indicate that the controversy may be more suitably tried elsewhere, then jurisdiction
should be declined and the parties relegated to relief to be sought in another forum.

Where in a broad sense the ends of justice strongly indicate that the controversy maybe more
suitably elsewhere, jurisdiction should be declined and the parties relegated to relief to be sought in
another forum.

Forum non conveniens means simply that a court may resist imposition upon Its jurisdiction
even when jurisdiction is authorized by the letter of a general venue statute. (Salonga)

Forum non conveniens is a doctrine whereby a court of law having full jurisdiction over a case
brought in a proper venue or district declines to determine the case on its merit because justice would
be better served by trial over the case in another jurisdiction.

2) What is a “long arm statute”?

[2] Long arm statute is a legislative act which provides for personal jurisdiction, via substituted
service or process over persons or corporations which are non-residents of the state and which
voluntarily go into the state, directly or by agent or communicate witli persons in the state for limited
purposes, in actions which concern claims relating to performance or execution of those purposes. Long
arm statute refers simply to authorized substituted seivice.

2002 BAR Felipe is a Filipino citizen. When he went to Sydney for vacation, he met a former
business associate, who proposed to him a transaction which took him to Moscow. Felipe brokered a
contract between Sydney Coals Corp. (Coals), an Australian firm, and Moscow Energy Corp. (Energy), a
Russian firm, for Coals to supply coal to Energy on a monthly basis for three years. Both firms were not
doing, and still do not do, business in the Philippines. Felipe shuttled between Sydney and Moscow to
close the contract. He also executed in Sydney a commission contract with Coals and in Moscow with
Energy, under which contracts he was guaranteed commissions by both firms based on a percentage
deliveries for the three-year period, payable in Sydney and in Moscow, respectively, through deposits in
accounts that he opened in the two cities. Both firms paid Felipe his commission for four months, after
which they stopped paying him. Felipe learned from his contacts, who are residents of Sydney and
Moscow, that the two firms talked to each other and decided to cut him off. He now files suit in Manila
against both Coals and Energy for specific performance. Define or explain the principle of “lex loci
contractus’.

Lex loci contractus may be understood in two sense.

[1] It is the law of the place wnere contracts, wills, and other public instruments are executed and
governs their “forms and solemnities”, pursuant to the first paragraph, Article 17 of the New Civil Code;
or

[2] It is the proper law of the contract; i.e., the system of law intended to govern the entire contract,
including its essential requisites, indicating the law of the place with which the contract has its closest
connection or where the main elements of the contract converge.

Uplc answer

Should the Philippine court assume jurisdiction over the case? Explain.
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No. The court can never acquire jurisdiction over the companies involved for none of them were
doing business in the Philippines, and neither the Philippine court has power to determine the facts
surrounding the execution of said contracts, and even if a proper decision could be reached, such would
have no binding effect as the court was not able to acquire jurisdiction over the said corporations. Also,
the contracts were not executed or performed in the Philippines nor the provisions provide that the 38
Philippines shall be the venue in case of dispute. Hence, the local court cannot assume jurisdiction over
the case of Felipe.

THE SITUS OR ECLECTIC THEORY

In general, it states that the capacity, legal condition, or status of an individual should be
governed not necessarily by the law of his nationality nor by the law of his domicile but by the law of the
place (situs) where an important element of the problem occurs or is situated.

PLACE OF THE MOST SIGNIFICANT RELATIONSHIPS

To determine which was the state of the most significant relationship, the factual contacts of
each case are considered. In contract cases, the factual contacts include:

The law chosen by the parties and in the absence thereof, by

1. The place of contracting;

2. The place of negotiation of the contract;

3. The place of performance;

4. The domicile, residence, nationality, place of incorporation and the business of the parties;

These contacts are evaluated depending on their relative importance and relevance to the issue at
hand.

LEX FORI

When the application of foreign law, judgment, or contract would work against the vital interests
and national security of the state of the forum, it has to apply the internal or domestic law in
adjudicating a conflicts problem before it.

1992 BAR X and Y entered into a contract in Australia, whereby it was agreed that X would
build a commercial building for in the Philippines, and in payment for the construction, Y will and
convey his cattle ranch located in the United States in favor of X.

What law would govern the validity of the contract?

The validity of the contract will be governed ty Australian law under Article 17 of the Civil Code
as the place of its execution. It is the proper law of the contract; i.e., the system of law intended to
govern the entire contract, including its essential requisites, indicating the law of the place with which
the contract has its closest connection or where the main elements of the contract converge. Here, the
closest law to the conract is the Autralian law. Hence, it should govern its validity.

(a) The validity of the contract will be governed by Australian law, because the validity refers to the
element of the making of the contract in this case;

(b) The performance will be governed by the law of the Philippines where the contract is to be
performed.

(c) The consideration will be governed by the law of States where the ranch is located.

1994 BAR Able, a corporation domiciled in State A, but, doing business in the Philippines, hired
Eric, a Filipino engineer. Its project is in Stale B. In the contract of employment executed by the parties
in State B, it was stipulated that the contract could be terminated at the company’s will, which
stipulation is allowed in State B. When Eric was summarily dismissed by Able, he sued Able for
damages in the Philipines.

Will the Philippine court apply the contractual stipulation?

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a) Using the “significant relationships theory”, there are contacts significant to the Philippines.
Among these are that the place of business is the Philippines, the employee concerned is a
Filipino and the suit was filed in the Philippines, thereby justifying the application of Philippine
law. In the American Airlines case the Court held that when what is involved is paramount state
interest such as the protection of the rights of Filipino laborers, the court can disregard choice 39
of forum and choice of law. Therefore the Philippine Court should not apply the stipulation in
question.

b) No. Lex fori should be applied because the suit is filed In Philippine courts and Eric was hired in
the Philippines. The Philippine Constitution affords full protection to labor and the stipulation
as to summary dismissal runs counter to our fundamental and statutory laws. –UPLC

2010 BAR Define, enumerate or explain.

Give at least two reasons why a court may assume jurisdiction over a conflict of law case.

Statute theory. There is a domestic law authorizing the local court to assume jurisdiction.

Comity theory. The local court assumes jurisdiction based on the principle of comity or
courtesy.

Public Order. To maintain peace and order, disputes that disturb the peace of the forum should
be settled by the courts of the forum even though the application of a foreign law is necessary for the
purpose.

Humanitarian Principle. An aggrieved party should not be left without remedy in a forum even
though the application of a foreign law by the courts of the forum is unavoidable in order to extend
relief.

What are exceptions to the application of proper foreign law?

1. When the foreign law, judgment, or contract, is contrary to universally conceded principles of
morality;

2. When the foreign law, judgment, or contract is contrary to a sound and established public policy
of the forum;

3. When the foreign law, judgment or contract involves procedural matters;

4. When the case involves penal laws, contracts, judgments;

5. Whert the case involves purely fiscal (that is revenue-producing) or administrative matters;

6. When the application of the foreign law, judgment, or contract may work undeniable injustice to
the resident or residents of the forum;

7. When the application of the foreign law, judgment, or contract, may work against the vital
interests and national security of the state of the forum;

8. When the case involves real or personal property (Paras, 8th edition)

2004 BAR In a class suit for damages, plaintiffs claimed they suffered injuries from torture during
martial law. The suit was filed upon President EM’s arrival on exile in HI, a U.S. state. The court in HI
awarded plaintiffs the equivalent of P100 billion under the U.S. law on alien tort claims. On appeal, EM’s
Estate raised the issue of prescription. It argued that since said U.S. law is silent on the matter, the
court should apply (1) HI’s law setting a two-year limitation on tort claims; or (2) the Philippine law
which appears to require that claims for personal injury arising from martial law be brought within one
year.

Plaintiffs countered that provisions of the most analogous federal statute, the Torture Victims
Protection Act, should be applied. It sets ten (10) years as the period of prescription. Moreover, they
argued that equity could toll the statute of limitations. For it appeared that EM had procured
Constitutional amendments granting himself and those acting his direction immunity from suit during
his tenure.
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In this case, has prescription set in or not? Considering the differences in the cited laws, which
prescriptive period should be applied: one year under Philippine law, two years HI’s law, ten years under
U.S. federal law, or none of the above? Explain.

SUGGESTED ANSWER: 40

The US Court amy apply US law, the law of the forum. Here, the issue is procedural in nature.
Hence, the court may apply either the US federal law or HI law.

In determining the applicable prescriptive period. While the US law is silent on this matter, the
US Court will not apply Philippine law in determining the prescriptive. It is generally affirmed as a
principle in private international law that procedural law is one of the exceptions to the application of
foreign law by the forum. Since prescription is a matter of procedural law even in Philippines, the US
Court will apply either HI or Federal law in determining the applicable prescriptive period and NOT
Philippine law.

RECIPROCITY PRINCIPLE, concept

If the laws and judgment of the forum are recognized in a foreign state, the forum in turn will
recognize the laws and judgments emanating from said foreign state.

2004 BAR Dr. ALX is a scientist honored for work related to the human genome project. Among his
pioneering efforts concern stem cell research for the cure of Alzheimer’s disease. Under corporate
sponsorship, he helped develop a microbe that ate and digested oil spills in the sea.

Now he leads a college team for cancer research in MSS State. The team has experimented on a
mouse whose body cells replicate and bear cancerous tumor. Called “oncomouse”, it is a life-form useful
for medical research and it is a novel creation. Its body cells do not naturally occur in nature but are the
product of man’s intellect, industry and ingenuity. However, there is a doubt whether local property laws
and ethics would allow rights of exclusive ownership on any life-form. Dr. ALX needs your advice: (1)
whether the reciprocity principle in private international law could be applied in our jurisdiction; and (2)
whether there are legal and ethical reasons that could frustrate his claim of exclusive ownership over
the life-form called “oncomouse” in Manila? ‘What will be your advice to him?

The reciprocity principle in private international law may be applied in our jurisdiction. Section
3 ofR.A. 8293, the Intellectual Property Code, provides for reciprocity, as follows: “Any person who is a
national, or who is domiciled, or has a real and effective industrial establishment in a country which is a
party to any convention, treaty or agreement relating to intellectual property rights or the repression of
unfair competition, to which the PhilippInes is also a party, or extends reciprocal rights to nationals of
the Philippines by law, shall be entitled to benefits the extent necessary to give effect to any provision of
such convention, treaty or reciprocal law in addition to the rights to which any owmer of an intellectual
property right is otherwise entitled by this Act.” To illustrate the Philippines may refrain from imposing a
requirement of local incorporation or establishment of a local domicile for the protection of industrial
property rights of foreign nationals (citizens of Canada, Switzerland, US) if the countries of said foreign
nationals refrain from imposing said requirement on Filipino citizens. - UPLC

ALTERNATIVE ANSWER:

Reciprocity principle cannot be applied in our jurisdiction because the Philippines is a party to
the TRIPS agreement and the WTO. The principle involved is the most favored nation clause which is the
principle of non-discrimination. The protection afforded to intellectual property protection in the
Philippines also applies to other members of the WTO. Thus, it is not really reciprocity principle in
private intemational law that applies, but the most favored nation clause under public international law.
- UPLC

(2)There is no legal reason why “oncomouse”cannot be protected under the law. Among those excluded
from patent protection aie “plant varieties or animal breeds, or essentially biological process for the
production of plants and animals” (Section 22.4 Intellectual Property Code. R.A. No. 8293). The
‘oncomouse” in the problem is not an essentially biological process for the production of animals. It is a
real invention because its body cells do not naturally occur in but are the product of man’s ingenuity,
intellect and industry.
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The breeding of oncomouse has novelty, inventive step and industrial application. These are the
three requisites of patentability. (Sec. 29, IPC) There are no ethical reasons why Dr. ALX and his college
team cannot be given exclusive ownership invention. The use of such genetically modified mouse, useful
for cancer research, outweighs considerations for animal rights.
41
There are no legal and ethical reasons that would frustrate Dr. ALX’s claim of exclusive
ownership “oncomouse”. Animals are property capable of being appropriated and owned, in fact, one can
own pet dogs or cats, or any other animal. If wild animals are capable ofbeing owned, with more reason,
animals technologically enhanced or corrupted by man’s invention or industry are susceptible to
exclusive ownership by the inventor. - UPLC

ALTERNATIVE ANSWER:

The “oncomouse” is a non-patentable invention. Hence, cannot be owned exclusively its

inventor. It is a method for the treatment of the human or animal body by surgery oi therapy and
diagnostic methods practiced said bodies are not patentable under Sec. 22 of the IPC. – UPLC
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PART II

FAMILY CODE
42
As a teaser, do you know why law books and jurisprudence are so ridiculously difficult to
understand? It is because the authors meant them to impress their collegues, and not for the students and
definitely not for the parties – who are mostly simple persons. And you know why it is hard to study law,
because the lawyer-professors teach them per provision starting from the first article to the last one, and
that is not an effective teaching strategy.

In studying the concept of marriage, we chose to start with its counterfiet – the void marriages,
and not the typical per provision starting from Article 1. Think of Family Code like a menu – a chopseuy.
Look at it and you will know the ingredients. But if just look at the raw ingredients, one by one, you will
keep on guessing what will be the final menu when they all are mixed together. By studying void
marriages early on, we will be able to tackle most of the first 38 articles at the quickest time instead of
chewing the first article to the last.

After void marraiges, we will get to know the controversial psychological incapacity under Art 36
followed by Article 40. Then we will take on voidable marraiges and property regimes under articles 147
and 148, followed by Articles 50 to 53 and terminable marriages, and finishing it up with the evolution
of the foreign divorces under Art 26 and legal separaton.

Other topics such as rights and obligations of husbands and wives, paternity and filiation,
support and the family are best discussed alongside with jurisprudence and bar questions related to
different types of marriages. They are actually consequences of conflict and a lot of issues concerning
those topics are raised up in each major subject matter we mentioned in the preceding paragraph.

The physical form ng program will be like this: the lecture in Tagalog language, along side with
provisions, followed by juriprudence and bar questions and answers from 1987-2018. So you dont need
to buy notes on frequent bar topics and bar questions and answers for they are all here. Sa bar answers,
some of old answers are already overturned by recent decisions, like ng Manalo case on foreign divorces.
We also included those questions but have put a note that the original answer was overturned by a
recent jurisprudence.

Please take notice that the bulk of the lecture are alongside with the important jurisprudence, if
you find that the lecture is short at the beginning of the topic, we chose to do the discussion with the
jurisprudence for a better recall.

__________________________

In our lecture we wil use the following persons

X = the husband

Y = the wife

Z= the paramour or the second husband ni Y

W = the paramour or second wife ni X

A, B, C = children ni X and Y

D, E, F = children ni X and W

G, H, I = children ni Y and Z

When the solemnizing officer finally says, “I now pronounce you man and wife”, you and your
spouse has become a new creation. Parang isang nilalang. That’s what happened in a valid marriage (or
at least voidable), it is like new creation – isang bagong nilalang na tao. The new ‘person’ has its own
“personality”. He can acquire assets, incur debt and obligations as well as rights. Meron siyang property
regime – na Absolute community of property or, kung ayaw nila ng ACP, pwede ring conjugal
partnership of gains, or a unique marriage settlement.
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Just like a natural person, pag namatay - magkakaroon ng succession – yung ari-arian niya ay
mapupunta sa mga heirs. Pero bago mapunta sa heirs – magbabayad muna ng mga utang at yung
natira yun lang ang tinatawag na estate na paghahatian ng mga naiwan.

Sa marriage, similarly, ganun din. Ang tawag dun ay liquidation of property. Let say - sabi ni X, 43
hiwalay na tayo – I will file annulment. When granted by the court, the marriage died or is dissolved.

There shall be liquidation – babayaran lahat ng utang, at yung matitira ay paghahatian din ng
mag-asawa. Ang unique sa FC, ang mga anak ay bibigyan ng advance na mana – or yung tintawag
nating – presumptive legitime.

In studying marriage, mas mahusay simulan ang pag-aaral sa counterfeit – or the void
marriage. Pag void, walang new creation. Walang mamatay at walang dissolution. Because a void
marriage is inexistent.

So in a nutshell, there is no property regime – neither absolute community of property (ACP) nor
conjugal property of gains (CPG) in void marraiges. The property regime is governed by special co-
ownership under Art 147 or 148. It means they are the co-owners of their property depending on the
amount or kinds of their contribution. Dahil the property regime is neither ACP or CPG, there is no
regime to dissolve so there is no liquidation and delivery of presumptive legitime.

Since there is no the marriage at all, the children are illegitimate. That’s the general rule.
Exception? Meron. If the voidability of the marraige is under Art 36 (psychological incapacity) or Art. 53.

So lets start with void marriages.

VOID MARRIAGES
WHAT ARE VOID MARRIAGES?

Art 37. Marriages between the following are incestuous and void from the beginning, whether
the relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood.

Art 38. The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil
degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
Between the surviving spouse of the adopting parent and the adopted child:
(5) Between the surviving spouse of the adopted child and the adopter,
(6) Between an adopted child and a legitimate child of the adopter;
(7) Between the adopted children of the same and
(8) Between parties where one, with the intention to marry the other, killed that other person’s
spouse or his or her own spouse.

How do you count degree? From you, your parents are one degree up, your grand parents are two
degrees up, their other children or your uncles and aunties are on third, and their children or your first
cousins are on the fourth degree. So hanggang kay lovely cousin ang hindi mo pwedeng i-seduce to
marry you. Pero yung anak ni cousin na mas bata. Yan...pwede mo ng ligawan at pakasalan – kasi pang
5th degree na level ni pamangkin sa pinsan. So hanggang pinsan yung prohibition – the 4th degree
relatives.

---------------------

Ok. Let us take them one by one.

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[1] Exception, if direct ascendants or descendants, kahit ilang degree hindi pwede. You cannot marry
your great-great-great grandmother who is in the 5th degree.

[2] Between step children, pwede. Dati sa Civil code bawal ang marriage between step-children. But
now, under FC, there is no more prohibition. 44

[3] Between adopted chidren, not allowed. Though there are no relationships between them. Remember
in adoption, the legal tie is created only between the adopting parent and the adopted child. If X adopted
A, B and C. The children have not become siblings by adoption but they have one parent who is X. By
public policy, they cannot marry each other.

[4] Let say X, marries Y, Y cannot remarry any of the adopted children of X when he (X) dies. Because
she is the surviving spouse (Y) of the adopting parent (X), and that’s against public policy.

X and Y’s marriage was annuled. Pwede ng pakasalan ni Y ang any adopted child ni X. Because X and Y
are no more couple. It means – pwede ng maging karibal ni daddy yung anak niya.

[5] A is the adopted child of X, she married B. A died. X cant marry B. But if the marriage of A and B
were annuled, X can marry B. Because A and B are not anymore a couple.

Surviving spouse – means there is death. If na-annul na marriage, wala ng magiging surviving spouse.
So the prohibition does not apply.

[6] Marraige between an adopted child and illegitimate child of the adopter is valid.

Rule:

Marriages between adopted children of the same adopter are likewise declared void by reason of public
policy.

Thus, as far as adopted child is concerned, he or she is prohibited from marrying the following:

(1) the adopter;

(2) the surviving spouse of the adopter;

(3) the legitimate children of the adopter; and

(4) the other adopted children of the same adopter.

The adopter, on the other hand, is prohibited from marrying the following:

(1) the adopted child; and

(2) the surviving spouse of the adopted child.

[7] Let say Z, the paramour, killed X, and then he marries Y. The marriage is valid. There was no
intention to marry Y at the time of the incident. The intention must be proven by factual evidence.

Let’s say X killed Y, and marrried V. The marriage is valid. The killing is not intended to marry V. The
intention must be proven by factual evidence. Hindi pwede na by mere allegation na paramour niya si V.
Dapat the intention to marry is clear.

Final conviction of the crime is not required. Sa petition of annulment pwede ng i-allege ang intent to kill
in order to marry the victim’s spouse.

----------------------------------

Art. 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents
guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
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(3) Those solemnized without a license, except those covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) ‘Those subsequent marriages that are void under Article 53.
45
No. 1, 2 and 3 of Art 35 talk about the essential and formal requisites of marriage. Isa lang mawala sa
essential requisites, the marriage is void. If they are present, but insuffcicient - kulang, that is only a
defect, the marriage is not void but voidable. It means valid until declared void.

SO WHAT ARE THESE ESSENTIAL REQUISITES?

Art. 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties

(2) Consent freely given in the presence of the solemnizing officer

WHAT ABOUT THE FORMAL REQUISITES OF MARRIAGE?

Art 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer,

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and
wife in the presence of not less than two witnesses of legal age.

WHAT ABOUT UNION OF SAME-SEX INDIVIDUALS?

They are not marriage at all, even when celebrated with all the essential and formal requisites.
Let’s say they were able to get a marriage license, mukhang babae na yung isa at mukha namang over
18 years old na. The civil registrar had to dispense with the birth certificate. So the marriage license was
issued by mistake. The union cannot be called marriage at all for lack of law recognizing as such. The
Family Code defines marriage as “special contract of permanent union between a man and woman”, it
means biological designation of sex by birth.
Some author would say that such union is void because of lack of incapacity to marry each
other. That is misplaced. Kasi nga legal capacity is dependent on age and state of mind. The gay guys
are in the right mind and over 18 years old, so they have the right to be happy and get married, di ba?
So, the crux is that there is no law allowing such celebrated union to be considered as marriage.

SO WHEN YOU ARE ASKED SA BAR, WHAT ARE THE VOID AB INTIO MARRIAGES UNDER THE
FAMILY CODE?

Incestous marriages under Art. 37 are void from the beginning as well those under Art 38 for
being against pubic policy. Marriages absent one of any of the essential or formal requisites are also void
ab initio by direct provision of the law as well as those bigamous and polygamous marriages not falling
under Art 41, marriage by mistake of the identity of the other, marriages in non-compliance of Art. 40,
and those subsequent marriages under Art 53. Marriages when one of the parties has psychological
incapacity under Art. 36 are also void from the beginning. In addition, union of same-sex individuals
even when solemnized with all the essential and formal requisites shall not be considered marriage at all
for lack of law recognizing such celebrated union as marriage.

_____________________________
So now, let me take you in a ride on the preliminaries of a marriage to have better understanding
of void ab initio marriages under No. 1, 2 and 3 of Art 35.

Before performing the marriage ceremony, the judge must do an indept interview.

[1] To personally interview the contracting parties and examine the requirements they submitted. The
parties must have complied with all the essential and formal requisites of marriage.
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SO ANU-ANO BA ITONG ESSENTIAL REQUISITES;

[a] Legal capacity of the contracting parties who must be a male and a female; and

(b) Consent freely given in the presence of the solemnizing officer. 46

Legal capacity dapat babae at lalaki by birth, so, if sobrang bata ng babae at sa tingin ni judge
ay below 18, he might require proof like birth ceritificate or when he heard ng magsalita si Y, na parang
sinasapian ng demonyo – pero sobrang ganda, makinis at ang haba ng buhok, babaeng-babae sa labas
na anyo, pero ka-boses ni Ted Failon – transsexual. Red flag na yun. The solemnizing officer must not
celebrate the marriage. Male and female dapat and 18 years old and above. If below 21, the officer will
require the presence ng parents or gurdian, to give consent in front of him.

Note: Any absence ng any essential requisites, the marriage is void, but any defect, the marraige is
voidable. Therefore, no legal capacity (17 below ang age, same-sex parties, 18 years old nga - pero sintu-
sinto or special child) or no consent was given by a party or both in the presence of the officer (marriage
via skype), the marraige is void ab initio.

Pag sinabing defect, nadun ang legal capacity and consent, pero may defect. Like no consent ng
parents or guardian sa below 21 years old na ikakasal, consent was given in good faith na may authority
n mag solemnize ng marriage si pastor, yun pala wala. Yan... mga defect lang yan....the marraige is not
void but voidable. It means valid until declared void.

SO ANU-ANO NAMAN ITONG FORMAL REQUISITES:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before
the solemnizing officer and their personal declaration that they take each other as husband and
wife in the presence of not less than two witnesses of legal age.

So the first thing to do, ay pupunta si X and Y sa civil registry, mag-aaply ng marriage license.
Requirement na dalhin syempre ang mga birth certificate or baptismal certificate. If below 21 years old
either si X or Y, they need consent ng tatay muna, or nanay, surviving parent or guardian, in that order.
Kung walang consent, hindi void ang mariage, voidable lang. Defect lang yun sa consent ng parties.

If walang birth or batismal, the requirement is a sworn affidavit, plus affidavit ng 2 disinterested
person na sina X and Y nga ay mga nasa tamang edad na para magpakasal. Or kung nadun ang mga
parents, sworn affidavit ng parents na nasa tamang edad na sila X and Y para magpakasal. At kung sa
tingin naman ni civil registrar sa mga hitsura ni X and Y na mas matanda pa sa kanya, ok na wag na
magpresent ng birth certificate, material lang ito to determine the legal capacity by age, or if may legal
capacity, need pa ba ng parental consent. So any absence ng mga requirment na mga sinabi ko, at
nakapag-issue ng marriage license si civil registrar, the absence shall be considered only as irregularity,
the marriage is valid. Pero si civil registrar shall be liable civilly, criminaly and administraively liable.
Bahala na siya sa buhay niya, basta ang kasal valid.

In cases na may dati ng kasal either X and Y or both, they need to present the following instead of
birth certificate:

[a] Death certificate ng previous spouse; or

[b] Judicial decree of absolute divorce (foreign judgment ito n already recognized by the Philippine
court); or

[c] Judicial decree of nullity or annulment of pevious marriage.

If walang death certificate, madalas yung mga kinain ng dagat, nalunod at nakitang bangkay na. Sa
probinsya madalas pag patay na, wala ng report report pa. Kung yung mga nabuhay nga ng mga walang
birth certificate, nang mamatay, irereport pa ba? Eh patay na. So, sworn affidavit na lang of the
circumstances of death ng previous partner.

THE 3-MONTH ISSUANCE RULE

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If the one of the parties or both is between 21 to 25 years old, they are obliged to obtain PARENTAL
ADVICE upon the intended marriage. Ito yung blessings ng parents. If unfavorable – ayaw ng parents ni
Y kay X, dahil hampaslupa siya, the license shall be issued only after three months from the completion
of the publication. Nasa isang sworn statement ang lahat ng yan, to be submitted with the application.
47
If any of the party or both, ay between 18 to 25, kailangan ng CERTIFICATE OF MARRIAGE
COUNSELLING from their religious affiliation or from any marriage counsellor accredited by the
government. If walang certification, the marriage license shall only be issued after 3 months from the
completion of the publication.

PUBLICATION

Sa loob ng 10 ARAW, ipopost ang notice of application sa bulletin board sa labas ng local civil
registry. Yung kitang kita ng tao. At sa loob ng 10 araw, ang buong sambayanan ay may panahon para
tumutol at sabihin sa local civil registrar about any impediment na wag maikasal si X and Y.
Pagkatapos ng 10 araw, ilalabas na ang marriage license, duly noted ang impediment reported.

ANU-ANO ITONG IMPEDIMENT NA ITO?

Sabi sa batas any impediment? It is submitted na yung mga minor lang na wont result sa invalidity
ng marriage or hindi magreresult ng crime. If say the parties are only 12 years old, malaking bulas lang,
dahil sa religion or custom nila ay ok ang ganun ang idad n ikasal, tapos dadalhin sa Iran ang bata,
yung mga magulang ok lang sa kanila, the license shall not be issued. Child trafficking na ito. Let say
that the girl is an imbecile, the license shall be not be issued. May prior and subsisting marriage, the
license wont be issued. To issue the license is ministerial, yes if all requirments are present and in
order. If there is a serious impediment at magreresult ng crime, the civil registrar may hold off the
issuance.

VALIDITY NG MARRIAGE LICENSE

Valid yan for 120 days from issuance and effective all over the Philippines. So sa 121th day, expred
na license ng kasal, the marriage shall be viid for lack of marriage license.

And it shall be deemed automatically cancelled at the expiration period if hindi ginamit ni X and Y.
Non-transfereable. Hindi pwedeng si X and U na lang n kakambal ni Y ang ikasal tutal ito naman ang
original gf ni X.....or let say the license was to be issued in January 2, 2019, eh asawang asawa n si X
and Y, nagpakasal sila Jan 1, sumabay sa putukan. The marriage is void, kahit kinabukasan may
license na sila.

CEREMONY

Eh di eto na, ang araw ng kasal. All are in order, everything is within the bounds of the law.
Marriage ceremony na at pirmahan na ng marriage certificate.

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall
be necessary, however, for the contracting parties to appear personally before the solemuizing officer
and declare in the presence of not less than two witnesses of legal age that they take each other as
husband and wife. This declaration shall be contained in the marriage certificate which shall be
signed by the contracting parties and their witnesses and attested by the solemnizing officer.

In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the
marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name
of said party, which fact shall be attested by the solemnizing officer.

Ito yung portion na, “ lalaki, tinatanggap mo b na maging kabiyak.....? opo. Padre.” Yan lang yung
ceremony, hindi na kasama yung misa sa simbahan at mga abuluyan. Pag sinabi na ni Y na opo padre.
Tapos na yung ceremony. Paano kung walang witness, secret marriage. It cant happen, kasi laging may
witness. Yung secretary ni judge, yung alalay ng pari, kahit na sinong mga tao doon papipirmahin yun
as witnesses.
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Sa articulo mortis, yung witness ang pwedeng pipirma in liue of the dying spouse. Let say balikat na
lang natitira kay sundalo, kasi tinamaan ng kanyon. To be attested by the military commander na hindi
n kayang pumirma pa ni X...at wala ng ngang braso.

So the marriage contract or certificate is not essential part of marriage. AT HINDI ITO YUNG 48
MARRIAGE LICENSE.

Marriage contract is the best evidence na may marriage na nangyari. Oral marriage, as long na
nadoon lahat ang essential at formal requisites is valid.

______________________________________

Balikan natin about solemnizing officer dahil maraming tinatanong sa bar exams on this topic;

WHO CAN SOLEMNIZE?

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court’s jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his
church or religious sect and registered with the civil registrar general, acting within the limits of
the written authority granted him by his church. Or religious sect and provided that at least one
of the contracting parties belongs to the solemnizing officer’s church or religious sect;
(3) Any consul-general, consul or vice-consul in the case provided in Article 10.
(4) Any ship captain or airplane chief only in the cases mentioned in Article 31; or
(5) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter,
during a military operation, likewise only cases mentioned in Article 32;
[6] Nasaan, ang authority ng mga mayors? Wala sa family code, nasa Local government code. Sec
255 (xviii)

.....(xviii) Solemnize marriages, any provision of law to the contrary notwithstanding;

Therefore, from Aug 3, 1988 to the effectivity ng Local Government Code ng 1991 in January 1992,
mayors could not solemnize marriages. A marriage solemnized within that interegnum is void.

MAYORS AS SOLEMNIZING OFFICERS

Whereas under Art. 56 of the NCC, marriages may be solemnized by mayors of cities and
municipalities, under the FC, mayors are no longer authorized to solemnize marriages. However, in
view of the Local Government Code which took effect on January. 1992, the duty elected mayors of
the cities and municipalities can again solemnize marriages, thus, reverting back to the old law. The
word mayor includes a “vice mayor who is the acting mayor”.

[7] Imam in Muslim rites or leaders of the ethnic cultural communities in Art 33.

Ok sila lang ang pwedeng magkasal ( 1-7), anybody else the marriage shall be void dahil walang
formal requisite. But merong provision n exception which is belief in good faith.

Art. 35. The following marriages shall be void from the beginning;

xxx(2) Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so; xxxx

NOTE: believe in good faith on question of fact lang ito pwede.

GOOD FAITH IN QUESTION OF FACT VS GOOD FAITH IN QUESTION OF LAW

Let say, X and Y married under the solemnization of Mang Kanor, judge ng beauty contest. Pero
ang appelation sa buong baranggay ay si Judge Kanor. X and Y with all their heart believe that Mang
Kanor is a an RTC judge and has authority to solemnize marriages. What is the status of the marriage?
It is submitted na the marraige is void. Good faith is not a defense against ignorance of the law. Igorance
of the law excuses no one. It is assumed that we know the lists of solemnizing officers, kasi batas ito. If
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the officer is not one of the lists, then the marriage must be declared void. Dapat may due diligence on
the part of X and Y to ask for the real work ni Mang Kanor para maging question of fact ito.

Let say, Si mayor Z, he was ordered immediately to vacate the position, he solemnized the
marriage of X and Y. It is submitted that the marriage is valid because he is one of the listed officers and 49
X and Y believed in good faith that the mayor still have the authority to solemnize marriage despite of
that order. It is a question of fact, and good faith is a valid defense.

So there, dapat may color of authority ang solemnizing officer, at ang issue ay question of fact
lang. If the officer is not one of the lists, let say yung kung lasenggo lang sa kanto ang magkakasal, o
isang nagpapanggap na paring naggagala sa piyesta, the marriage is void ab initio in spite of the
genuine belief of X and Y. Because that is ignorance of the law. Hindi mo alam kung sinu-sino lamang
ang maaring magkasal? Kaya dapat nagtatanong ng batas at may due diligence to check everyting if all
are in order.

WHERE TO SOLEMNIZE MARRIAGES?

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court,
in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as
the case may be, and not elsewhere, except in cases of marriages contracted at the point of
death or in remote places in accordance with Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing in which case the marriage may be solemnized
at a house or place designated by them in a sworn statement to that effect.

[1] Judges – sa chamber lang, if sa labas ng chamber, need ng written requests, if none, that is only an
irregularity. The marriage is still valid.

What about if judge in Manila, solemnizes marriage in Cebu? It is submitted na valid ang marriage
but subject to administrative penalty si Judge.

[2] Priests, rabbi, imam, pastors – sa loob lang ng church, chapel or temple, and not elsewhere. Excpept
may written request from the party address to the officer na sa bahay, or any place like sa garden. If sa
ibang lugar at walang written request, the marriage is still valid. Irregularity lang ang lack of written
request.

[3] Consul general, consul, or vice-consul – in their offices, not elsewhere. Same with number 2.

[4] Ship captain or airplane chief – in the ship at sea or on plane in flight, but also during stopovers and
port of call. If outside those areas, the marriage is void unless the any of the party or both, believe so in
good faith that the ship captain or the pilot still has the jurisdiction to solemnize marriages ouside those
areas. Kasi nga, may color of authority pa rin sila. Its still a question of fact.

[5] Military commander pag walang chaplain – within the zone of military operation where he is
assigned between persons, whether members of the armed forces or civilians, at pag wala lang si
chaplain. If nandyan si Chaplain, the chaplain shall officiates the articulo mortis, not the commander in
chief. If the commander officiates, the marriage is void, unless belief in good faith sets in.

[a] what if X, a soldier, was brought to a hospital outside of the military zone, and mamatay n talaga
si X. Walang ibang pwedeng magkasal, si commander lang na nagdala sa sugatang sundalo ang
nadoon. Kinasal niya. Valid b yung kasal. It is submitted, yes. By analogy with the number 4 on
ship captains and pilots, sa port of call at stop overs pede silang magkasal, here sa hospital outside
the military zone, pwede rin, basta may significant connections ang mga circumstances that will
lead to marriage in articulo mortis.

Point of death – think of a person who is a victim of a frustrated murder. Yun talagang mamamatay
na. Nabuhay lang siya because of the timely medical intervention. If mga galos lang at kalmot
hahahaha hindi ito articulo mortis. Or the wound is not fatal, like sa balikat or extremeties, hindi
ito point of death.

[6] Mayors – sa LGC, walang sinabi about limitation in jurisdiction. It is submitted that mayors may
solemnize anywhere in the Philippines.
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MARRIAGE LICENSE

The cardinal rule is, pag walang marriage license, the marriage is void. Exceptions

[1] marriage by articulo mortis in Art 27; 50

[2] marriage in remote places in Art 28;
[3] marraige in articulo mortis during air travel and voyage in Art 31;
[4] marriage in articulo mortis within the zone of military operation in Art 32;
[5] marraige among Muslims or among members of the ethnic cultutral communities in accordance with
their customs, rites and practices in Art 33.
[6] Uninterrupted cohabitation of the parties as husband and wife for at least 5 years and without any
legal impediment to marry in Art 34.

ARICULO MORTIS SA BAHAY OR HOSPITAL

[1] Art, 27. In case either or both of the contracting parties are at the point of death, the
marriage may be solemnized without necessity of a marriage license and shall remain valid even if the
ailing party subsequently survives.

The clue here, either X and Y is fatally wounded or in the point of death.

Si X is about to die, nasa death bed na. No time to secure marriage license, kasi di ba may publication
pa ng 10 days. Y can call on any solemnizing officer to officiate the ceremony.

REMOTE PLACES

[2] Art. 28. If the residence of either party is so located that there is no means of transportation
to enable such party to appear personally before the local civil registrar, the marriage may be solemnized
without the necessity of a marriage license.

Like in Pag-asa Island, though may biyahe pero minsan lang sa loob ng isang buwan. X and Y
got married. The marriage is void. Because there is a mean of transportion going to the civil registrar.
Dapat yung wala talagang means of transporatation. Let say nasa jungle, yan...wala talagang kalsada,
tapos tatawid pa ng dagat going to the main city. Kadalasan, mga tribes na ito na ang applicable
provision is Art 33.

ARTICULO MORTIS ON VOYAGE

[3] Art. 31. A marriage in articulo mortis between passengers or crew members may also be
solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in
flight, but also during stopovers at ports of call.

The clue here, either X and Y is fatally wounded or in the point of death.

Let say plane 101, crashed. X and Y survived but X is fatally wounded. The pilot also died. Yung
assistant pilot na lang ang buhay. The assistant pilot may solemnize in the absence of the main pilot
kasi by policy siya na ang chief pilot.

Let say, X suffered a heart attack, he is about to die. The chief pilot designate his assistant to
solemnize. The marriage is void. The assistant has no authority. The authority cannot be delegated.

ARICULO MORTIS ON WAR ZONE

[4] Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo mortis between persons within the zone of military
operation, whether members of the armed forces or civilians.

The clue here, either X and Y is fatally wounded or in the point of death.
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Let say X was about to go to war zone at everyone knows na walang nakakabalik ng buhay. X
married Y, solemnized by the military commander. X died in the war zone. The marriage is void. The
marraige is not in articulo mortis. Because X was so healthy he married Y.
51
ETHNIC/RELIGIOUS RITES

[5] Art. 33. Marriages among Muslims or among members of the ethnic cultural communities
may be performed validly without the necessity of a marriage license, provided they are solemnized in
accordance with their customs, rites or practices.

So this is an addional solemnizing officer, yung mga tribe leaders or priests.

COHABITATION

[6] Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived
together as husband and wife for at least five years and without any legal impediment to marry each
other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized
by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties and found no legal impediment to the marriage.

The cohabitation must be:

[a] uninterrupted for at least 5 years;
[b] the parties lived as husband and wife; and have no legal impediment to marry

X cohabited with Y, but had an affair with V, and lived with her for a month. The cohabitation
has been broken. Start uli ng counting from the time of balikan ni X and Y.

There must be a perception sa community that the parties are living as husband and wife.
Dapat walang pretention na mag-tiyahin lang. Kasi nahihiya si Y, she is older ng 20 years than X. So
alam ng buong bayan na mag tiyahin sila kasi ang tawag ni X kay Y ay Ate or Tita, pero sa bahay they
live as couple.

The exception of the couple from the requirement to secure a marriage license is to save the
dignity of the couple and their children in the requirement of publishing their names while awaiting for
the issuance of marriage license. Magiging tsismis pa sila na ang mga anak pala nito ay mga anak sa
pagkakasala. Meaning walang kasal.

PRESUMPTION OF MARRIAGE

There is this presumption of marriage between couples. You dont ask you neighbor na -
patingin nga ng marriage contract ninyo, if kasal nga kayo. That is unacceptable. Kahit sa barangay, the
officers cannot ask for the marraige contract if you file a case against sa isang tsismosa na kinakalat na
kabit ka. The fact that nagsasama na kayo, the presumption is that you are legally married and only at
the proper forum lang like the court can question that presumption.

THE PARTIES MUST BE OF AGE with NO SUBSISTING PREVIOUS MARRIAGE

If the parties are of not legal age, the counting shall start when both get 18 years old. If there is
an subsisting marriage, the cohabitation is adulterous. The counting shall start at the severance of
marriage by court order or by death of one of the parties in the previous marriage.

JURISPRUDENCE

THE VALIDITY OF A VOID MARRIAGE

MAY BE COLLATERALLY ATTACKED IN AN ACTION FOR SUPPORT
De Castro vs. Assidao-DeCastro, GR No.. 160172, Februarys, 2008
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X and Y were sweethearts since 1991 and planned to get married, so they apply for marriage
license. When they got back to claim the license, it was already expired. Thus, in order to push through
with the plan, they executed an affidavit dated March 15, 1995 stating that they have been living
togather as husband and wife for at least 5 years. The couple got married in that same date. To cut the
story short, naghiwalay din sila, immediately thereafter the marraige. They begat Z in Novemeber 1995. 52
Y filed a complaint for support against X before the RTC.