Balane Civil Law Reviewer - Final

Lecture Notes on Civil Law
Professor Ruben F. Balane

CHANGES IN THE NE CI!IL C"#E
1. Granting of new rights
0 Example: The Family Code erases the distinction between natural and spurious
children. Now they are lumped together as illegitimate. Thus, spurious children are
given rights.
. Different solutions to old problems
1 Example: Change in river course
!. Clarification of old provisions
Example: "nder the old Civil Code, there were only void and voidable contracts.
#ith the addition o$ unen$orceable and rescissible contracts, the NCC provides
clari$ication
%. Certain subjects omitted
! Examples: The dowry has been omitted& certain leases have also been omitted.
The NCC is $ar $rom per$ect. There are structural de$ects. Certain things which
should be in the preliminary section are $ound elsewhere. 'n e(ample o$ this is the vices
o$ consent. #hy are they $ound in contracts) They are relevant in all *uridical
transactions. 'nother e(ample is the topic o$ degrees o$ relationship. This is $ound only
in succession. +egrees o$ relationship are relevant in other boo,s too. Finally, why is
tradition $ound in the law on sales) Tradition is not only important in sales. -ather,
tradition is a mode o$ ac.uiring ownership.
PRELI$INAR% TITLE
I. Effect an& A''lication of Laws
Art. 1. This Act shall be known as the Civil Code of the Philippines.
Art. 2. !aws shall take effect after fifteen da"s following the completion
of their publication in the #fficial Ga$ette% unless it is otherwise provided. This
Code shall take effect one "ear after such publication.
% &This code shall take effect ' "ear after such publication.( The /C in the
case o$ Lara vs. Del Rosario that the one year should be counted $rom the date o$
actual release and not the date o$ issue.
0 1(ecutive 2rder No. 00 supersedes 'rticle regarding the time o$ e$$ectivity o$
laws.
EXECUTIVE ORDER NO. 200
PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A
NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR
THEIR EFFECTIVITY
LECT(RE N"TES "N CI!IL LA
Professor Ruben F. Balane Pa)e * of +,-
WHEREAS, Article 2 of the Civil Code partly provides that laws shall take effect after
fifteen days following the completion of their p!lication in the "fficial #a$ette, nless it is
otherwise provided % % %&'
WHEREAS, the re(irement that for laws to !e effective only a p!lication thereof in
the "fficial #a$ette will sffice has entailed some pro!lems, a point recogni$ed !y the
Spreme Cort in )a*ada, et al% vs% )vera, et al% +#%R% ,o% -./01, 2ecem!er 2/, 0/3-4 when it
o!served that 5t6here is mch to !e said of the view that the p!lication need not !e made in
the "fficial #a$ette, considering its erratic release and limited readership&'
WHEREAS, it was likewise o!served that 56ndo!tedly, newspapers of general
circlation cold !etter perform the fnction of commnicating the laws to the people as sch
periodicals are more easily availa!le, have a wider readership, and come ot reglarly&' and
WHEREAS, in view of the foregoing premises Article 2 of the Civil Code shold
accordingly !e amended so the laws to !e effective mst !e p!lished either in the "fficial
#a$ette or in a newspaper of general circlation in the contry'
,"W, )HERE7"RE, 8, C"RA9", C% A:;8,", <resident of the <hilippines, !y virte of
the powers vested in me !y the Constittion, do here!y order=
Sec. 1. L!" "#$$ %&e e''ec% '%e( ')'%ee* +," '-$$-!)*. %#e c-/0$e%)-* -' %#e)(
012$)c%)-* e)%#e( )* %#e O'')c)$ G3e%%e -( )* *e!"00e( -' .e*e($ c)(c1$%)-* )* %#e
P#)$)00)*e"4 1*$e"" )% )" -%#e(!)"e 0(-5)+e+.
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P#)$)00)*e"4: *+ $$ -%#e( $!" )*c-*")"%e*% !)%# %#)" E;ec1%)5e O(+e( (e #e(e2, (e0e$e+ -(
/-+)')e+ cc-(+)*.$,.
Sec. 6. T#)" E;ec1%)5e O(+e( "#$$ %&e e''ec% )//e+)%e$, '%e( )%" 012$)c%)-* )* %#e
O'')c)$ G3e%%e.
2one in the City of >anila, this 03th day of ?ne, in the year of "r @ord, nineteen
hndred and eightyAseven%
3 &') da"s following( 4 does this mean on the 10
th
or 13
th
day) The law is not
clear.
5 "nder 'rticle , publication in the 2$$icial 6a7ette was necessary. Now, under 1.2.
No. 00, publication may either be in the 2$$icial 6a7ette or a newspaper o$ general
publication.
8 &unless otherwise provided( re$ers to when the law shall ta,e e$$ect. 9t does
not mean that publication can be dispensed with. 2therwise, that would be a
violation o$ due process.
: General *ule+ ;aws must be published in either the 2$$icial 6a7ette or a
newspaper o$ general circulation.
10 Exception: The law may provide $or another manner o$ publication. +i$$erent
manner meaning<
0 Not in 2$$icial 6a7ette or newspaper o$ general circulation& or
Example: -ead over the television or the radio =provided that the alternative is
reasonable>
1 Change in the period o$ e$$ectivity
Professor Ruben F. Balane Pa)e . of +,-
11 &publication( means ma,ing it ,nown& dissemination. 9t doesnt have to be in
writing.
1 &Change period of effectivit"( ? the gap between publication and e$$ectivity
should be reasonable under the circumstances.
1! @e$ore publication, cannot apply the law whether penal or civil (Pesigan vs.
Angeles) #hy) Aow can you be bound i$ you dont ,now the law.
1% -e.uirement o$ publication applies to all laws and is mandatory.
Art. 3. ,gnorance of the law e-cuses no one from compliance therewith.
0 Ignorantia legis neminem excusat =9gnorance o$ the law e(cuses no one>.
0 This is a necessary rule $or all civili7ed society. 2therwise it would be impossible
to en$orce the law. 9t is very hard to determine whether or not a person really does not
,now the law. #ithout this rule, there would be anarchy. The law sacri$ices occasional
harshness to prevent universal anarchy.
1 There are potential methods to mitigate the severity o$ 'rticle ! ? 'rticles 03
=B!>, 100, 1!!%.
C
9n Kasilag vs. Rodriguez the /C said that the possession o$ the antichretic credit
as possession in good $aith since a di$$icult .uestion o$ law was involved ? antichresis. 9n
this case, the parties were not very ,nowledgeable o$ the law.
! 'rticle ! applies only to ignorance o$ Dhilippine law. 9t does not apply to $oreign
law. 9n Drivate 9nternational ;aw, $oreign law must be proven even i$ it is applicable.
2therwise, the courts will presume the $oreign law to be the same as Dhilippine law.
Art. 4. !aws shall have no retroactive effect% unless the contrar" is
provided.

0 Lex de !uturo "udex de preterito =The law provides $or the $uture, the *udge $or the
past>.
1 *etroactive law ? one which creates a new obligation and imposes a new duty
or attaches a new disability with respect to transactions or considerations already past.
General *ule+ ;aw must be applied prospectively.
3 Exceptions:
0 9$ the statute provides $or retroactivity.
Exception to t#e exception:
0 Ex post !acto laws
1 ;aws which impair the obligation o$ contracts
1 Denal laws inso$ar as it $avors the accused who is not a habitual criminal,
even though at the time o$ the enactment o$ such law $inal sentence has already
been rendered.
*
Art. $%& '(. Eista,e upon a doubt$ul or di$$icult .uestion o$ law may be the basis o$ good $aith.
Art. %)$$. Dayment by reason o$ a mista,e in the construction or application o$ a doubt$ul
or di$$icult .uestion o$ law may come within the scope o$ the preceding article.
Art. )((*. Eutual error as to the legal e$$ect o$ an agreement when the real purpose o$ the
parties is $rustrated, may vitiate consent.
Professor Ruben F. Balane Pa)e + of +,-
-emedial laws as long as it does not a$$ect or change vested rights.
! #hen the law creates new substantive rights unless vested rights are
impaired.
% Curative laws =the purpose is to cure de$ects or imper$ections in *udicial or
administrative proceedings>
0 9nterpretative laws
3 ;aws which are o$ emergency nature or are authori7ed by police power
(+antos vs. Alvarez& P,- vs. .!!ice o! t#e President)
Art. 5. Acts e-ecuted against the provisions of mandator" or prohibitor"
laws shall be void% e-cept when the law itself authori$es their validit".
0 ' mandatory law is one which prescribes some element as a re.uirement =i.e.,
wills must be written ? 'rticle 80%
& $orm o$ donations ? 'rticle 5%:
>
1 ' prohibitory law is one which $orbids something =i.e., *oint wills ? 'rticle 818
>
General *ule+ 'cts which are contrary to mandatory or prohibited laws are void.
3 Exceptions:
0 #hen the law itsel$ authori7ed its validity =i.e. lotto, sweepsta,es>
1 #hen the law ma,es the act only voidable and not void =i.e. i$ consent is
vitiated, the contract is voidable and not void>
#hen the law ma,es the act valid but punishes the violator =i.e. i$ the
marriage is celebrated by someone without legal authority but the parties are in
good $aith, the marriage is valid but the person who married the parties is liable>
3 #hen the law ma,es the act void but recogni7es legal e$$ects $lowing
there$rom =i.e. 'rticles 1%1 F 1%1!
>
_
Art. /0*. 1very will must be in writing and e(ecuted in a language or dialect ,nown to the
testator.
_
Art. 1*2. 9n order that the donation o$ an immovable may be valid, it must be made in a public
document, speci$ying therein the property donated and the value o$ the charges which the donee
must satis$y.
The acceptance may be made in the same deed o$ donation or in a separate public
document, but it shall not ta,e e$$ect unless it is done during the li$etime o$ the donor.
9$ the acceptance is made in a separate instrument, the donor shall be noti$ied thereo$ in
an authentic $orm, and this step shall be noted in both instruments.
_
Art. /)/. Two or more persons cannot ma,e a will *ointly, or in the same instrument, either $or
their reciprocal bene$it or $or the bene$it o$ a third person.
_
Art. )*)%. 9$ the act in which the unlaw$ul or $orbidden cause consists does not constitute a
criminal o$$ense, the $ollowing rules shall be observed<
=1> #hen the $ault is on the part o$ both contracting parties, neither may recover what he has
given by virtue o$ the contract, or demand the per$ormance o$ the otherGs underta,ing&
0 #hen only one o$ the contracting parties is at $ault, he cannot recover what he has given
by reason o$ the contract, or as, $or the $ul$illment o$ what has been promised him. The
other, who is not at $ault, may demand the return o$ what he has given without any
obligation to comply his promise.
Art. )*)(. 9nterest paid in e(cess o$ the interest allowed by the usury laws may be
recovered by the debtor, with interest thereon $rom the date o$ the payment.
Professor Ruben F. Balane Pa)e / of +,-
Art. 6. *ights ma" be waived% unless the waiver is contrar" to law% public
order% public polic"% morals% or good customs% or prejudicial to a third person
with a right recogni$ed b" law.
0 #hat one can waive are rights and not obligations. Example a creditor can waive
the loan but the debtor may not.
1 There is no $orm re.uired $or a waiver since a waiver is optional. Hou can waive
by mere inaction, re$using to collect a debt $or e(ample is a $orm o$ waiver.
-e.uisites o$ a valid waiver (3errera vs. -oromeo)
1. 1(istence o$ a right
. Inowledge o$ the e(istence o$ the right
!. 'n intention to relin.uish the right =implied in this is the capacity to dispose o$ the
right>
0 General *ule+ -ights can be waived.
) Exceptions:
1. 9$ waiver is contrary to law, public order, public policy, morals or good customs
. 9$ the waiver would be pre*udicial to a !
rd
party with a right recogni7ed by law.
=e.g. 9$ ' owes @ D10E, @ cant waive the loan i$ @ owes C and @ has no other
assets.>
0 Examples o! 4aivers 4#ic# are pro#i5ited:
0 -epudiation o$ $uture inheritance
1 #aiver o$ the protection o$ pactum commissorium
#aiver o$ $uture support
! #aiver o$ employment bene$its in advance
% #aiver o$ minimum wage
0 #aiver o$ the right to revo,e a will
Art. 7. !aws are repealed onl" b" subse.uent ones% and their violation or
non/observance shall not be e-cused b" disuse% or custom or practice to the
contrar".
0hen the courts declared a law to be inconsistent with the Constitution%
the former shall be void and the latter shall govern.
Administrative or e-ecutive acts% orders and regulations shall be valid
onl" when the" are not contrar" to the laws or the Constitution.
1 'rticle 5 is obvious because time moves $orward.
2nly subse.uent laws can repeal prior laws either through<
1. ' repealing clause
. 9ncompatibility o$ the subse.uent and prior laws
0 The violation o$ a law is not *usti$ied even i$<
0 No one $ollows the law =i.e. nonpayment o$ ta(es>
Professor Ruben F. Balane Pa)e 0 of +,-
1 There is a custom to the contrary
0 The
nd
par. o$ 'rticle 5 is *udicial review in statutory $orm.
Art. 8. 1udicial decisions appl"ing or interpreting the laws or the
Constitution shall form a part of the legal s"stem of the Philippines.
0 This is a new provision ta,en $rom common law. "nder the civil law tradition, the
court merely applies the law. Aowever since the Dhilippine legal system is a combination
o$ civil law and common law, courts apply statutes as well as resort to the doctrine o$
precedent.
Art. 9. 2o judge or court shall decline to render judgment b" reason of
the silence% obscurit" or insufficienc" of the laws.
Art. 10. ,n case of doubt in the interpretation or application of laws% it is
presumed that the lawmaking bod" intended right and justice to prevail.
1 #hat i$ the law is silent) The court should render a decision based on *ustice as
stated in 'rticle 10.
Art. 11. Customs which are contrar" to law% public order or public polic"
shall not be countenanced.
#hat i$ customs are not contrary to law) The custom would be countenanced.
Aowever, this does not mean that the custom would have obligatory $orce.
Art. 12. A custom must be proved as a fact% according to the rules of
evidence.
! The law doesnt speci$y the cases when custom is relevant in litigation. @ut in
case custom is relevant, it should be proven.
% Commentators say that custom is important in cases involving negligence. For
e(ample, i$ a 6alesa in Eanila is by custom supposed to have rattan bas,ets to prevent
people $rom slipping, i$ a person slips because there is no rattan bas,et, then he can sue
$or negligence.
Art. 13. 0hen the laws speak of "ears% months% da"s or nights% it shall be
understood that "ears are of three hundred si-t"/five da"s each3 months% of
thirt" da"s3 da"s% of twent"/four hours3 and nights from sunset to sunrise.
,f months are designated b" their name% the" shall be computed b" the
number of da"s which the" respectivel" have.
,n computing a period% the first da" shall be e-cluded% and the last da"
included.
0 'rticle 1! has been superseded by 1(ecutive 2rder No. : =the -evised
'dministrative Code o$ 1:85> ? @oo, 1, J!1.
Sec. 61. @egal <eriods% < =Ye(= "#$$ 2e 1*+e("%--+ %- 2e %!e$5e c$e*+( /-*%#">
=/-*%#= -' %#)(%, +,"4 1*$e"" )% (e'e(" %- "0ec)')c c$e*+( /-*%# )* !#)c# c"e )% "#$$ 2e
c-/01%e+ cc-(+)*. %- %#e *1/2e( -' +," %#e "0ec)')c /-*%# c-*%)*"> =+,4= %- +, -'
%!e*%,<'-1( #-1("> *+ =*).#%4= '(-/ "1*"e% %- "1*()"e.
1 "nder 1.2. No. :, a year is now e.uivalent to 1 calendar months and not !30
days. "nder 'rticle 1! leap years are not considered. For e(amples, in order to ma,e a
will, one has to be 18 years old. @ut i$ you use 'rticle 1!, one loses % to 0 days i$ you
dont count the leap years. 1.2. No. : is better than 'rticle 1! since it is more
realistic.
There should have been a de$inition o$ hours. That de$inition is relevant $or labor
law. 'ccording to Dro$essor @alane, an hour should be de$ined as 1K% o$ a calendar day.
9$ you use the de$inition that an hour is e.ual to 30 minutes, then we would have to
de$ine minutes, then seconds, and so on. 9t would be too scienti$ic.
II. Conflicts of Law Provisions
Art. 14. Penal laws and those of public securit" and safet" shall be
obligator" upon all who live or sojourn in the Philippine territor"% subject to the
principles of public international law and to treat" stipulations.
0 Two principles<
4 Territorialit"
General *ule< Criminal laws apply only in Dhilippine territory.
Exception: 'rticle , -evised Denal Code.
' Generalit"
General Rule: Criminal laws apply to everyone in the territory =citi7ens and
aliens>
Exceptions: 9n these instances, all the Dhilippines can do is e(pel them
0 Treaty stipulations which e(empt some persons within the *urisdiction o$
Dhilippine courts =e.g. @ases 'greement>
1 Aeads o$ /tate and 'mbassadors
=,ote: Consuls are sub*ect to the *urisdiction o$ our criminal courts.>
Art. 15. !aws relating to famil" rights and duties% or to the status%
condition and legal capacit" of persons are binding upon citi$ens of the
Philippines% even though living abroad.
'rt. . Application o! its provisions. L 1(cept as provided in the treaties and laws o$ pre$erential
application, the provisions o$ this Code shall be en$orced not only within the Dhilippine 'rchipelago,
including its atmosphere, its interior waters and maritime 7one, but also outside o$ its *urisdiction,
against those who<
1. /hould commit an o$$ense while on a Dhilippine ship or airship&
. /hould $orge or counter$eit any coin or currency note o$ the Dhilippine 9slands or obligations
and securities issued by the 6overnment o$ the Dhilippine 9slands&
!. /hould be liable $or acts connected with the introduction into these islands o$ the
obligations and securities mentioned in the presiding number&
%. #hile being public o$$icers or employees, should commit an o$$ense in the e(ercise o$ their
$unctions& or
0. /hould commit any o$ the crimes against national security and the law o$ nations, de$ined
in Title 2ne o$ @oo, Two o$ this Code.
Professor Ruben F. Balane Pa)e , of +,-
1 Theories on Dersonal ;aw<
0 Doiciliar! t"eor! 4 the personal laws o$ a person are determined by his
domicile
1 #ationalit! t"eor! 4 the nationality or citi7enship determines the personal laws
o$ the individual
"nder 'rticle 10, the Dhilippines $ollows the nationality theory. Family rights and
duties, status and legal capacity o$ Filipinos are governed by Dhilippine law.
! General *ule+ "nder 'rticle 3 o$ the Family Code, all marriages solemni7ed
outside the Dhilippines in accordance with the laws in $orce in the country where they
were solemni7ed and valid there as such, is also valid in the Dhilippines.
% Exception: 9$ the marriage is void under Dhilippine law, then the marriage is void
even i$ it is valid in the country where the marriage was solemni7ed .
Exception to t"e exception:
0 'rticle !0, B, Family Code
Art. 35. The following marriages shall be void from the beginning+
567 Those solemni$ed b" an" person not legall" authori$ed to perform
marriages unless such marriages were contracted with either or
both parties believing in good faith that the solemni$ing officer had
the legal authorit" to do so3
1 'rticle !0, B!, Family Code
587 Those solemni$ed without license% e-cept those covered the
preceding Chapter3
1ven i$ the $oreign marriage did not comply with either Bs and ! o$ 'rticle
!0, Dhilippine law will recogni7e the marriage as valid as long as it is valid under
$oreign law.
Art. 16$ %1. *eal propert" as well as personal propert" is subject to the
law of the countr" where it is stipulated.
0 Lex situs or lex rei sitae governs real or personal property =property is sub*ect to
the laws o$ the country in which it is located>.
1 9n 7a8ag vs. -enguet consolidated, the /C said that Dhilippine law shall govern in
cases involving shares o$ stoc, o$ a Dhilippine corporation even i$ the owner is in the "/.
Art. 16$ %2. 9owever% intestate and testamentar" successions% both with
respect to the order of succession and to the amount of successional rights and
to the intrinsic validit" of testamentar" provisions% shall be regulated b" the
national law of the person whose succession is under consideration% whatever
ma" be the nature of the propert" and regardless of the countr" wherein said
propert" ma" be found.
0 This is merely an e(tension o$ the nationality theory in 'rticle 10.
Professor Ruben F. Balane Pa)e - of +,-
1 The national law o$ the decedent regardless o$ the location o$ the property shall
govern. Thus, the national law o$ the decedent shall determine who will succeed.
9n 9iciano vs. -rimo, the /C said that the will o$ a $oreigner containing the
condition that the law o$ the Dhilippines should govern regarding the distribution o$ the
properties is invalid.
! 9n Aznar vs. :arcia, what was involved was the renvoi doctrine. 9n this case, the
decedent was a citi7en o$ Cali$ornia who resided in the Dhilippine. The problem was that
under Dhilippine law, the national law o$ the decedent shall govern. 2n the other hand,
under Cali$ornia law, the law o$ the state where the decedent has his domicile shall
govern. The /C accepted the re$erral by Cali$ornia law and applied Dhilippine law =single
renvoi>.
% &ro'le: #hat i$ the decedent is a Filipino domiciled in a $oreign country which
$ollows the domiciliary theory)
'ccording to Dro$essor @alane, one way to resolve the situation is this ?
Dhilippine law should govern with respect to properties in Dhilippine while the law o$
the domicile should govern with respect to properties located in the state o$ domicile.
Art. 17. The forms and solemnities of contracts% wills% and other public
instruments shall be governed b" the laws of the countr" in which the" are
e-ecuted.
0hen the acts referred to are e-ecuted before the diplomatic or consular
officials of the *epublic of the Philippines in a foreign countr"% the solemnities
established b" Philippine laws shall be observed in their e-ecution.
Prohibitive laws concerning persons% their acts or propert"% and those
which have for their object public order% public polic" and good customs shall
not be rendered ineffective b" laws or judgments promulgated% or b"
determinations or conventions agreed upon in a foreign countr".
0 Lex loci cele5rationis =$ormal re.uirements o$ contracts, wills, and other public
instruments are governed by the country in which they are e(ecuted>
1 There is no con$lict between the 1
st
B o$ 'rticle 13 and the 1
st
B o$ 'rticle 15 since
they tal, o$ di$$erent things.
Thus, the $ormal re.uirements o$ a contract involving real property in the
Dhilippines must $ollow the $ormal re.uirements o$ the place where the contract was
entered into. Aowever, i$ what is involved is not the $ormal re.uirements, then the law o$
the place where the properties =whether real or personal> are located shall govern.
Art. 18. ,n matters which are governed b" the Code of Commerce and
special laws% their deficienc" shall be supplied b" the provisions of this Code.
III. Hu2an Relations
Art. 19. :ver" person must% in the e-ercise of his rights and in the
performance of his duties% act with justice% give ever"one his due% and observe
honest" and good faith.
Art. 20. :ver" person who% contrar" to law% willfull" or negligentl" causes
damage to another% shall indemnif" the latter for the same.
Art. 21. An" person who willfull" causes loss or injur" to another in
manner that is contrar" to morals% good customs or public polic" shall
compensate the latter for the damage.
Art. 22. :ver" person who through an act of performance b" another% or
an" other means% ac.uires or comes into possession of something at the
e-pense of the latter without just or legal ground% shall return the same to him.
Art. 23. :ven when an act or event causing damage to another;s
propert" was not due to the fault or negligence of the defendant% the latter shall
be liable for indemnit" if through the act or event he was benefited.
Art. 24. ,n all contractual% propert" or other relations% when one of the
parties is at a disadvantage on account of his moral dependence% ignorance%
indigence% mental weakness% tender age or other handicap% the courts must be
vigilant for his protection.
Art. 25. Thoughtless e-travagance in e-penses for pleasure or displa"
during a period of acute public want or emergenc" ma" be stopped b" order of
the courts at the instance of an" government or private charitable institution.
Art. 26. :ver" person shall respect the dignit"% personalit"% privac" and
peace of mind of his neighbors and other persons. The following and similar
acts% though the" ma" not constitute a criminal offense% shall produce a cause
of action for damages% prevention and other relief+
5'7 Pr"ing into the privac" of another;s residence+
567 <eddling with or disturbing the private life or famil" relations of
another3
587 ,ntriguing to cause another to be alienated from his friends3
5=7 >e-ing or humiliating another on account of his religious beliefs% lowl"
station in life% place of birth% ph"sical defect% or other personal
condition.
Art. 27. An" person suffering material or moral loss because a public
servant or emplo"ee refuses or neglects% without just cause% to perform his
official dut" ma" file an action for damages and other relief against he latter%
without prejudice to an" disciplinar" administrative action that ma" be taken.
Art. 28. ?nfair competition in agricultural% commercial or industrial
enterprises or in labor through the use of force% intimidation% deceit%
machination or an" other unjust% oppressive or highhanded method shall give
rise to a right of action b" the person who thereb" suffers damage.
Art. 29. 0hen the accused in a criminal prosecution is ac.uitted on the
ground that his guilt has not been proved be"ond reasonable doubt% a civil
action for damages for the same act or omission ma" be instituted. @uch action
re.uires onl" a preponderance of evidence. ?pon motion of the defendant% the
court ma" re.uire the plaintiff to file a bond to answer for damages in case the
complaint should be found to be malicious.
Professor Ruben F. Balane Pa)e *4 of +,-
,f in a criminal case the judgment of ac.uittal is based upon reasonable
doubt% the court shall so declare. ,n the absence of an" declaration to that
effect% it ma" be inferred from the te-t of the decision whether or not the
ac.uittal is due to that ground.
Art. 30. 0hen a separate civil action is brought to demand civil liabilit"
arising from a criminal offense% and no criminal proceedings are instituted
during the pendenc" of the civil case% a preponderance of evidence shall
likewise be sufficient to prove the act complained of.
Art. 31. 0hen the civil action is based on an obligation not arising from
the act or omission complained of as a felon"% such civil action ma" proceed
independentl" of the criminal proceedings and regardless of the result of the
latter.
Art. 32. An" public officer or emplo"ee% or an" private individual% who
directl" or indirectl" obstructs% defeats% violates or in an" manner impedes or
impairs an" of the following rights and liberties of another person shall be liable
to the latter for damages+
5'7 Areedom or religion3
567 Areedom of speech3
587 Areedom to write for the press or to maintain a periodical publication3
5=7 Areedom from arbitrar" or illegal detention3
5)7 Areedom of suffrage3
5B7 The right against deprivation of propert" without due process of law3
5C7 The right to a just compensation when private propert" is taken for
public use3
5D7 The right to the e.ual protection of the laws3
5E7 The right to be secure in one;s person% house% papers% and effects
against unreasonable searches and sei$ures3
5'47 The libert" of abode and of changing the same3
5''7 The privac" of communication and correspondence3
5'67 The right to become a member of associations or societies for
purposes not contrar" to law3
5'87 The right to take part in a peaceable assembl" to petition the
Government for redress of grievances3
5'=7 The right to be a free from involuntar" servitude in an" form3
5')7 The right of the accused against e-cessive bail3
5'B7 The right of the accused to be heard b" himself and counsel% to be
informed of the nature and cause of the accusation against him% to
have a speed" and public trial% to meet the witnesses face to face% and
to have compulsor" process to secure the attendance of witness in his
behalf3
5'C7 Areedom from being compelled to be a witness against one;s self% or
from being forced to confess guilt% or from being induced b" a promise
Professor Ruben F. Balane Pa)e ** of +,-
of immunit" or reward to make such confession% e-cept when the
person confessing becomes a @tate witness3
5'D7 Areedom from e-cessive fines% or cruel and unusual punishment%
unless the same is imposed or inflicted in accordance with a statute
which has not been judiciall" declared unconstitutional3 and
5'E7 Areedom of access to the courts.
,n an" of the cases referred to in this article% whether or not the
defendant;s act or omission constitutes a criminal offense% the aggrieved part"
has a right to commence an entirel" separate and distinct civil action for
damages% and for other relief. @uch civil action shall proceed independentl" of
an" criminal prosecution 5if the latter be instituted7% and mat be proved b" a
preponderance of evidence.
The indemnit" shall include moral damages. :-emplar" damages ma"
also be adjudicated.
The responsibilit" herein set forth is not demandable from a judge unless
his act or omission constitutes a violation of the Penal Code or other penal
statute.
Art. 33. ,n cases of defamation% fraud% and ph"sical injuries a civil action
for damages% entirel" separate and distinct from the criminal action% ma" be
brought b" the injured part". @uch civil action shall proceed independentl" of
the criminal prosecution% and shall re.uire onl" a preponderance of evidence.
Art. 34. 0hen a member of a cit" or municipal police force refuses or
fails to render aid or protection to an" person in case of danger to life or
propert"% such peace officer shall be primaril" liable for damages% and the cit"
or municipalit" shall be subsidiaril" responsible therefor. The civil action herein
recogni$ed shall be independent of an" criminal proceedings% and a
preponderance of evidence shall suffice to support such action.
Art. 35. 0hen a person% claiming to be injured b" a criminal offense%
charges another with the same% for which no independent civil action is granted
in this Code or an" special law% but the justice of the peace finds no reasonable
grounds to believe that a crime has been committed% or the prosecuting
attorne" refuses or fails to institute criminal proceedings% the complaint ma"
bring a civil action for damages against the alleged offender. @uch civil action
ma" be supported b" a preponderance of evidence. ?pon the defendant;s
motion% the court ma" re.uire the plaintiff to file a bond to indemnif" the
defendant in case the complaint should be found to be malicious.
,f during the pendenc" of the civil action% an information should be
presented b" the prosecuting attorne"% the civil action shall be suspended until
the termination of the criminal proceedings.
Art. 36. Pre/judicial .uestions% which must be decided before an"
criminal prosecution ma" be instituted or ma" proceed% shall be governed b"
rules of court which the @upreme Court shall promulgate and which shall not be
in conflict with the provisions of this Code.
Professor Ruben F. Balane Pa)e *. of +,-
PERS"NS
Person
0 'ny physical or *uridical being susceptible o $rights and obligations, or o$ being the
sub*ect o$ legal relations
Persons (s. Things
1 ' person is the su5"ect o$ legal relations
' things is the o5"ect o$ legal relations
Art. 37. 1uridical capacit"% which is the fitness to be the subject of legal
relations% is inherent in ever" natural person and is lost onl" through death.
Capacit" to act% which is the power to do acts with legal effect% is ac.uired and
ma" be lost.
0 component elements o$ capacity<
0 1uridical capacit"
0 There are no degrees o$ *uridical capacity.
1 Muridical capacity is the same in every person. No one has more *uridical
capacity than others. 9t is inherent in natural persons. 2n the other hand, it
arises in arti$icial persons when such arti$icial persons are created.
1 Capacit" to act
0 This is best presented by a spectrum<
1 Nobody has 100N capacity to act. The law imposes restrictions on
capacity to act. 's long as one has contractual capacity =a.6.a. $ull civil
capacity> one is near 100N capacity to act. OFull civil capacityP is not really
100N but close to it. #ith contractual capacity, one is generally able to
per$orm contracts and dispose o$ property.
Nobody has 0N capacity to act. 9n$ants are close to 0N but still have
capacity to act. For e(ample, even $etus has the right to succeed and also
have the right to the integrity o$ body. 'liens cannot own colleges or
broadcast media.
Art. 38. <inorit"% insanit" or imbecilit"% the state of being a deaf/mute%
prodigalit" and civil interdiction are mere restrictions on capacit" to act% and do
not e-empt the incapacitated person from certain obligations% as when the
latter arise from his acts or from propert" relations% such as easements.
Art. 39. The following circumstances% among others% modif" or limit
capacit" to act+ age% insanit"% imbecilit"% the state of being a deaf/mute%
penalt"% prodigalit"% famil" relations% alienage% absence% insolvenc" and
trusteeship. The conse.uences of these circumstances are governed in this
Code% other codes% the *ules of Court% and in special laws. Capacit" to act is not
limited on account of religious belief or political opinion.
Professor Ruben F. Balane Pa)e *+ of +,-
4F ,nfant Alien <ost People '44F
A married woman% twent"/one "ears of age or over% is .ualified for all
acts of civil life% e-cept in cases specified b" law.
0 'rticles !8 and !: are really the same thing. They are redundant.
1 ,nsolvenc" ? certain obligations cannot be per$ormed =i.e. one cannot pay o$$
debts in $avor o$ one creditor while e(cluding other creditors>
Trusteeship 4 one is placed in guardianship.
! Prodigalit" 4 it is not by itsel$ a restriction. 9t is a ground to be placed in
guardianship
% These restrictions dont e(empt incapacitated persons $rom certain obligations.
"nder 'rticle 1103, there are 0 sources o$ obligations<
0 ;aw
1 Contract
+elict
! Quasi4delict
% Quasi4contract
Thus, 'rticles !8 and !: prevent incapacitated persons $rom incurring contractual
obligations only. Thus, even though an insane person cannot be thrown in *ail $or a
criminal act, the insane person is still civilly liable =delict>. 'n incapacitated person
must still pay income ta( i$ income is earned.
'lthough 'rticles !8 and !: dont mention it, incapacitated persons may ac.uire
rights. For e(ample, they have the right to accept donations or to succeed.
The enumeration in 'rticles !8 and !: is not e(clusive. There are others spread
throughout the code. =i.e. a lawyer cannot buy property in litigation ? 'rticle 1%:1
=0>
>
'rticle !:, last B has been amended by -.'. No. 380:. 1 years is no longer the age
o$ ma*ority but 18.
'rticle !:, last B ? #hat are the cases speci$ied by law)
I. Natural Persons
Art. 40. Girth determines personalit"3 but the conceived child shall be
considered born for all purposes that are favorable to it% provided it be born
later with the conditions specified in the following article.
`
Art. )*2). The $ollowing persons cannot ac.uire by purchase, even at a public or *udicial
auction, either in person or through the mediation o$ another<
=0> Mustices, *udges, prosecuting attorneys, cler,s o$ superior and in$erior courts, and other
o$$icers and employees connected with the administration o$ *ustice, the property and
rights in litigation or levied upon an e(ecution be$ore the court within whose *urisdiction
or territory they e(ercise their respective $unctions& this prohibition includes the act o$
ac.uiring by assignment and shall apply to lawyers, with respect to the property and
rights which may be the ob*ect o$ any litigation in which they may ta,e part by virtue o$
their pro$ession.
Professor Ruben F. Balane Pa)e */ of +,-
Art. 41. Aor civil purposes% the foetus is considered born if it is alive at
the time it is completel" delivered from the mother;s womb. 9owever% if the
foetus had an intra/uterine life of less than seven months% it is not deemed born
if it dies within twent"/four hours after its complete deliver" from the maternal
womb.
0 Drinciples<
For personality to be ac.uired one must be born
1 2nce birth occurs, personality $or $avorable purposes retroacts to the
moment o$ conception
1 To be born means to be alive a$ter the $etus is completely separated $rom the
mothers womb by cutting o$$ the umbilical cord.
General *ule+ To be born, it is enough that the $etus is alive when the umbilical
cord is cut
! Exception: 9$ the intra4uterine li$e is less than 5 months, it must live $or at least
% hours, be$ore it is considered born =There is no distinction as to how the child dies ?
whether natural, accidental, etc.>
% 'ccording to Dro$essor @alane, modern medicine cannot as o$ yet determine i$ the
intra4uterine li$e is 5 months or less in terms o$ number o$ days. Eodern medicine
cannot determine the e(act time when $ertili7ation too, place. Eodern medicine
estimates the $etus age in wee,s.
0 'n e(ample o$ a case where upon birth occurs personality retroacts to the
moment o$ conception is in case o$ succession since it is $avorable to the child. 2n the
other hand, i$ the purpose is $or paying ta(es, personality does not retroact since it is
un$avorable to the child.
3 9n :eluz vs. ;A, the /C said that the $ather could not $ile the action $or damages.
The $etus never ac.uired personality because it was never born ? it was not alive at the
time it was delivered $rom the mothers womb. /ince the $etus did not ac.uire any
personality, it ac.uired no rights which could be transmitted to the $ather. Thus, the
$ather could not sue in a representative capacity. The $ather could have sued in his
personal capacity had the $ather su$$ered anguish which he did not.
Art. 42. Civil personalit" is e-tinguished b" death.
The effect of death upon the rights and obligations of the deceased is
determined b" law% b" contract and b" will.
This article deals with the e(tinguishment o$ civil personality
+eath is not de$ined in the Civil Code. Not even doctors ,now precisely when death
occurs. There are many theories.
The $act o$ death is important because it a$$ects civil personality and legal relations.
The main e$$ect o$ death is readily seen in succession. +eath is also relevant to labor
law and insurance.
Art. 43. ,f 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 same3 in the absence of proof% it
is presumed that the" died at the same time and there shall be no transmission
of rights from one to the other.
RULE 1614 RULES OF COURT
Sec. 6. 2ispta!le presmptions% ? T#e '-$$-!)*. 0(e"1/0%)-*" (e "%)"'c%-(, )'
1*c-*%(+)c%e+4 21% /, 2e c-*%(+)c%e+ *+ -5e(c-/e 2, -%#e( e5)+e*ce@
ABBC T#% e;ce0% '-( 01(0-"e" -' "1cce"")-*4 !#e* %!- 0e("-*" 0e()"# )* %#e "/e
c$/)%,4 "1c# " !(ec&4 2%%$e4 -( c-*'$.(%)-*4 *+ )% )" *-% "#-!* !#- +)e+ ')("%4
*+ %#e(e (e *- 0(%)c1$( c)(c1/"%*ce" '(-/ !#)c# )% c* 2e )*'e((e+4 %#e
"1(5)5-("#)0 )" +e%e(/)*e+ '(-/ %#e 0(-22)$)%)e" (e"1$%)*. '(-/ %#e "%(e*.%# *+ .e
-' %#e "e;e"4 cc-(+)*. %- %#e '-$$-!)*. (1$e"@
1. I' 2-%# !e(e 1*+e( %#e .e -' ')'%ee* ,e("4 %#e -$+e( )" +ee/e+ %- #5e "1(5)5e+>
2. I' 2-%# !e(e 2-5e %#e .e -' ");%,4 %#e ,-1*.e( )" +ee/e+ %- #5e "1(5)5e+>
6. I' -*e )" 1*+e( ')'%ee* *+ %#e -%#e( 2-5e ");%,4 %#e '-(/e( )" +ee/e+ %- #5e
"1(5)5e+>
D. I' 2-%# 2e -5e( ')'%ee* *+ 1*+e( ");%,4 *+ %#e "e; 2e +)''e(e*%4 %#e /$e )"
+ee/e+ %- #5e "1(5)5e+> )' %#e "e; 2e %#e "/e4 %#e -$+e(>
E. I' -*e 2e 1*+e( ')'%ee* -( -5e( ");%,4 *+ %#e -%#e( 2e%!ee* %#-"e .e"4 %#e $%%e(
)" +ee/e+ %- #5e "1(5)5e+.
0 This is a presumption regarding simultaneous death and not a rule on
survivorship. 2n the other hand, the -ules provide $or a presumption o$ survivorship
based on certain criteria.
1 The -ules o$ Court shall apply where<
0 The issue does not involve succession but something else =i.e., insurance,
suspensive conditions>& and
1 The persons perish in the same calamity
0 'rticle %! shall apply where<
0 The case involves succession& and
1 The persons do not perish in the same calamity.
0 9$ the conditions in the -ules o$ Court or 'rticle %! do not concur, do not apply
either.
0 &ro'le: #hat i$ succession is involved and the persons perish in the same
calamity)
Eost commentators say 'rticle %! will prevail. This is the only case o$ con$lict
between the -ules o$ Court and 'rticle %!.
9n <oa=uin vs. ,avarro, 'rticle %! was not applied. There was no need to apply the
presumption in 'rticle %! since there was evidence to show who died $irst.
II. 5uri&ical Persons
Art. 44. The following are juridical persons+
5'7 The @tate and its political subdivisions3
567 #ther corporations% institutions and entities for public interest or
purpose% created b" law3 their personalit" begins as soon as the" have
been constituted according to law3
Professor Ruben F. Balane Pa)e *, of +,-
587 Corporations% partnerships and associations for private interest or
purpose to which the law grants a juridical personalit"% separate and
distinct from that of each shareholder% partner or member.
1 This enumerates the *uridical persons.
' *uridical person is an organic unit resulting $rom a group o$ persons or mass or
property to which the state grants or recogni7es personality and capacity to hold
patrimonial rights independent o$ those o$ component members
! The *uridical personality o$ political subdivisions and public corporations =i.e.
6/9/, ///> commences when the law creating them becomes e$$ective.
% The *uridical personality o$ a private corporation commences upon incorporation
with the /1C.
0 The *uridical personality o$ a partnership commences upon the meeting o$ the
minds o$ the parties.
3 'lthough the Catholic Church is not one o$ those mentioned in 'rticle %%, it is still
considered as a *uridical person in -arlin vs. Ramirez because o$ tradition.
Art. 45. 1uridical persons mentioned in 2os. ' and 6 of the preceding
article are governed b" the laws creating or recogni$ing them.
Private corporations are regulated b" laws of general application on the
subject.
Partnerships and associations for private interest or purpose are
governed b" the provisions of this Code concerning partnerships.
1?*,D,CA! P:*@#2 G#>:*2:D GH
/tate Constitution =+e$ines its organi7ation and limits its rights vis4
R4vis citi7ens>
Dolitical subdivision Charter
Dublic corporation Charter
Drivate corporation Corporation Code, 'rticles o$ 9ncorporation and @y4;aws
Dartnerships /tipulations o$ the parties and suppletorily by the general
provisions on partnership
Art. 46. 1uridical persons ma" ac.uire and possess propert" of all kinds%
as well as incur obligations and bring civil or criminal actions% in conformit"
with the laws and regulations of their organi$ation.
Art. 47. ?pon the dissolution of corporations% institutions and other
entities for public interest or purpose mentioned in 2o. 6 of article ==% their
propert" and other assets shall be disposed of in pursuance of law or the
charter creating them. ,f nothing has been specified on this point% the propert"
and other assets shall be applied to similar purposes for the benefit of the
region% province% cit" or municipalit" which during the e-istence of the
institution derived the principal benefits from the same.
5 +issolution is $ound in detail in the Corporation Code.
Professor Ruben F. Balane Pa)e *- of +,-
III. Citi6ens7i' an& #o2icile
Art. 48. The following are citi$ens of the Philippines+
5'7 Those who were citi$ens of the Philippines at the time of the adoption of
the Constitution of the Philippines3
567 Those born in the Philippines of foreign parents who% before the
adoption of said Constitution% had been elected to public office in the
Philippines3
587 Those whose fathers are citi$ens of the Philippines3
5=7 Those whose mothers are citi$ens of the Philippines and% upon reaching
the age of majorit"% elect Philippine citi$enship3
5)7 Those who are naturali$ed in accordance with law.
8 This has been superseded by the Constitution.
ARTICLE IV4 PHILIPPINE CONSTITUTION
Section 0% T#e '-$$-!)*. (e c)%)3e*" -' %#e P#)$)00)*e"@
A1C T#-"e !#- (e c)%)3e*" -' %#e P#)$)00)*e" % %#e %)/e -' %#e +-0%)-* -' %#)"
C-*"%)%1%)-*>
A2C T#-"e !#-"e '%#e(" -( /-%#e(" (e c)%)3e*" -' %#e P#)$)00)*e">
A6C T#-"e 2-(* 2e'-(e F*1(, 1G4 1HG64 -' F)$)0)*- /-%#e("4 !#- e$ec% P#)$)00)*e
c)%)3e*"#)0 10-* (ec#)*. %#e .e -' /B-()%,> *+
ADC T#-"e !#- (e *%1($)3e+ )* cc-(+*ce !)%# $!.
Art. 49. 2aturali$ation and the loss and reac.uisition of citi$enship of the
Philippines are governed b" special laws.
Art. 50. Aor the e-ercise of civil rights and the fulfillment of civil
obligations% the domicile of natural persons is the place of their habitual
residence.
Art. 51. 0hen the law creating or recogni$ing them% or an" other
provision does not fi- the domicile of juridical persons% the same shall be
understood to be the place where their legal representation is established or
where the" e-ercise their principal functions.
: 'rticle 00 governs the domicile o$ natural persons. 'rticle 01 tal,s about the
domicile o$ *uridical persons.
10 -e.uisites o$ +omicile =;allego vs. >era><
0 Dhysical Dresence
1 9ntent to remain permanently
Iinds o$ +omicile
0 +omicile o$ 2rigin
+omicile o$ parents o$ a person at the time he was born.
1 +omicile o$ Choice
Professor Ruben F. Balane Pa)e .4 of +,-
0 +omicile chosen by a person, changing his domicile o$ origin.
1 ' !
rd
re.uisite is necessary ? intention not to return to ones domicile as his
permanent place.
2 +omicile by 2peration o$ ;aw =i.e. 'rticle 3:
, domicile o$ minor>
0 -esidence vs. +omicile
0 -esidence is not permanent =There is no intent to remain>
1 +omicile is permanent =There is intent to remain>
0 'ccording to the /upreme Court in 9arcos vs. ;.9ELE;, the wi$e does not lose
her domicile upon marriage. /he does not necessarily ac.uire her husbands domicile.
"ntil the spouses decide to get a new domicile, the wi$e retains her old domicile. "nder
'rticle 3:8 o$ the Family Code, the domicile is $i(ed *ointly.
1 ! -ules<
0 ' man must have a domicile somewhere.
1 ' domicile once established remains until a new one is ac.uired.
' man can only have one domicile at a time.
0 The $ollowing 'rticles in the Civil Code mention domicile<
0 'rticle 81
Art. 821. The following are dis.ualified from being witnesses to a
will+
5'7 An" person not domiciled in the Philippines3
567 Those who have been convicted of falsification of a document%
perjur" or false testimon".
1 'rticle 8:
Art. 829. A revocation done outside the Philippines% b" a person
who does not have his domicile in this countr"% is valid when it is done
according to the law of the place where the will was made% or according
to the law of the place in which the testator had his domicile at the time3
and if the revocation takes place in this countr"% when it is in accordance
with the provisions of this Code.
'rticle 101
Art. 1251. Pa"ment shall be made in the place designated in the
obligation.
There being no e-press stipulation and if the undertaking is to
deliver a determinate thing% the pa"ment shall be made wherever the
thing might be at the moment the obligation was constituted.
,n an" other case the place of pa"ment shall be the domicile of the
debtor.
`
Art. &2. The husband and wi$e shall $i( the $amily domicile. 9n case o$ disagreement, the court
shall decide.
Professor Ruben F. Balane Pa)e .* of +,-
,f the debtor changes his domicile in bad faith or after he has
incurred in dela"% the additional e-penses shall be borne b" him.
These provisions are without prejudice to venue under the *ules of
Court.
1 The concept o$ domicile is not as important in civil law countries unli,e common
law countries which $ollow the nationality theory.
I!. Surna2es
/urnames are important $or identi$ication. /urnames identi$y the $amily to which a
person belongs =transmitted $rom parent to child>.
! ' name is a word or a combination by which a person is ,nown or identi$ied
=Repu5lic vs. ?ernandez>
% Characteristics o$ /urnames
0 'bsolute ? intended to protect $rom con$usion
1 2bligatory
Fi(ed ? cant change at ones leisure
! 2utside the commerce o$ man ? cant sell or donate
% 9mprescriptible 4 even i$ one does not use, still your name
0 -ules
0 's $ar as the state is concerned, your real name is the one in the Civil
-egistry =not the baptismal certi$icate since parish records are no longer o$$icial>
1 Change o$ name can only be done through court proceedings
Art. 376. 2o person can change his name or surname without
judicial authorit".
Aowever, a person can use other names which are authori7ed by C.'. No.
1% as amended by -.'. No. 3080 =use o$ pseudonym>
1 6uidelines regarding Change o$ Name
0 9n a petition $or change o$ name, courts are generally strict. Hou have to
show su$$icient cause.
The cases o$ ,aldoza vs. Repu5lic and Repu5lic vs. 9arcos illustrate what
are su$$icient causes. Repu5lic vs. 3ernandez added an additional ground.
The enumeration is not an e(clusive list o$ causes. They are merely the ones
$re.uently cited.
! 9n Repu5lic vs. ;A, the child wanted to change to the surname o$ the
step$athers. The /upreme Court said this is not allowed since it will cause
con$usion as to the childs paternity.
1 9n a petition $or in*unction or in a criminal case $or violation o$ C.'. No.
1%, courts are generally liberal $or as long as there is no $raud or bad $aith.
0 9n Legamia vs. IA;, the /upreme Court allowed the mistress to use her live4in
partners name since everyone ,new that she was the mistress ? no con$usion.
Professor Ruben F. Balane Pa)e .. of +,-
1 9n 7olentino vs. ;A, the /upreme Court allowed the $ormer Ers. Tolentino to ,eep
on using the surname o$ Tolentino since the same was not being used $or $raudulent
purposes.
9n case o$ adoption where the woman adopts alone, it is the maiden name
that should be given the child =<o#nston vs. Repu5lic>
Art. 370. A married woman ma" use+
5'7 9er maiden first name and surname and add her husband;s surname% or
567 9er maiden first name and her husband;s surname or
587 9er husband;s full name% but prefi-ing a word indicating that she is his
wife% such as I<rs.I
0 ' married woman may use only her maiden name and surname. /he has an
option and not a duty to use the surname o$ her husband as provided $or in 'rt. !50.
This is the obiter dictum in @asin vs. +#ariAa which cites Tolentino.
1 'ccording to @asin vs. +#ariAa when the husband dies, the woman can revert to
her old name without need $or *udicial authori7ation.
Art. 176$ )ail! *o+e. ,llegitimate children shall use the surname and
shall be under the parental authorit" of their mother% and shall be entitled to
support in conformit" with this Code. The legitime of each illegitimate child
shall consist of one/half of the legitime of a legitimate child. :-cept for this
modification% all other provisions in the Civil Code governing successional rights
shall remain in force.
0 9llegitimate children shall use the surname o$ the mother.
Art. 377. ?surpation of a name and surname ma" be the subject of an
action for damages and other relief.
Art. 378. The unauthori$ed or unlawful use of another person;s surname
gives a right of action to the latter.
1 'rticles !55 and !58 dont tal, o$ the same thing.
'rticle !55 deals with the usurpation o$ names. There is usurpation when there is
con$usion o$ identity =i.e. you claim to be Maime Sobel>
! 1lements o$ 'rticle !55 ="surpation><
0 There is an actual use o$ anothers name by the de$endant
1 The use is unauthori7ed
The use o$ anothers name is to designate personality or identi$y a person.
0 'rticle !58 is using o$ the name $or purposes other than usurpation =i.e. slander&
$or e(ample, 9 will use +alivas surname in my product, calling it +aliva see4thru
lingerie>
Professor Ruben F. Balane Pa)e .+ of +,-
!. E2anci'ation an& A)e of $a8orit9 :RA 1-43;
REPUBLIC ACT NO. 870H
AN ACT LOWERING THE AGE OF MAFORITY FROM TWENTY<ONE TO EIGHTEEN YEARS4
AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE4 AND
FOR OTHER PURPOSES
Sec% 0% A(%)c$e 26D -' E;ec1%)5e O(+e( N-. 20H4 %#e F/)$, C-+e -' %#e P#)$)00)*e"4 )"
#e(e2, /e*+e+ %- (e+ " '-$$-!"@
=A(%. 26D. E/*c)0%)-* %&e" 0$ce 2, %#e %%)*/e*% -' /B-()%,. U*$e""
-%#e(!)"e 0(-5)+e+4 /B-()%, c-//e*ce" % %#e .e -' e).#%ee* ,e(".=
Sec. 2. A(%)c$e" 26E *+ 26G -' %#e "/e C-+e (e #e(e2, (e0e$e+.
Sec. 6. A(%)c$e 268 -' %#e "/e C-+e )" $"- #e(e2, /e*+e+ %- (e+ " '-$$-!"@
=A(%. 268. E/*c)0%)-* "#$$ %e(/)*%e 0(e*%$ 1%#-()%, -5e( %#e 0e("-* *+
0(-0e(%, -' %#e c#)$+ !#- "#$$ %#e* 2e I1$)')e+ *+ (e"0-*")2$e '-( $$ c%" -' c)5)$ $)'e4 "5e
%#e e;ce0%)-*" e"%2$)"#e+ 2, e;)"%)*. $!" )* "0ec)$ c"e".
=C-*%(c%)*. /(().e "#$$ (eI1)(e 0(e*%$ c-*"e*% 1*%)$ %#e .e -' %!e*%,<-*e.
=N-%#)*. )* %#)" C-+e "#$$ 2e c-*"%(1e+ %- +e(-.%e '(-/ %#e +1%, -( (e"0-*")2)$)%, -'
0(e*%" *+ .1(+)*" '-( c#)$+(e* *+ !(+" 2e$-! %!e*%,<-*e ,e(" -' .e /e*%)-*e+ )* %#e
"ec-*+ *+ %#)(+ 0(.(0#" -' A(%)c$e 2170 -' %#e C)5)$ C-+e.=
Sec. D. U0-* %#e e''ec%)5)%, -' %#)" Ac%4 e;)"%)*. !)$$"4 2eI1e"%"4 +-*%)-*"4 .(*%"4
)*"1(*ce 0-$)c)e" *+ ")/)$( )*"%(1/e*%" c-*%)*)*. (e'e(e*ce" *+ 0(-5)")-*" '5-(2$e %-
/)*-(" !)$$ *-% (e%(-c% %- %#e)( 0(eB1+)ce.
Sec. E. T#)" Ac% "#$$ %&e e''ec% 10-* c-/0$e%)-* -' )%" 012$)c%)-* )* % $e"% %!- A2C
*e!"00e(" -' .e*e($ c)(c1$%)-*.
Approved= Dece/2e( 164 1H7H
0 1mancipation is the e(tinguishments o$ parental authority. 9t ta,es place at the
age o$ 18.
1 The problem with -.'. No. 380:, being a piece meal amendment, it does not ta,e
care o$ all re$erences in the Civil Code with re$erence to the age o$ ma*ority.
2ne de$ect o$ -.'. No. 380: is that it restores the distinction between per$ect and
imper$ect emancipation. The Family Code removed the distinction which -' 380:
restored. Thus, although 18 is the age o$ emancipation<
1. Dersons between 18 to 1 still need parental consent $or marriage.
2. Darents or guardians are liable $or the .uasi4delicts o$ persons who are already 18
years old under 'rticle 180
until he reaches the age o$ 1.
Art. %)/0. The obligation imposed by article 153 is demandable not only $or oneGs own acts or
omissions, but also $or those o$ persons $or whom one is responsible.
The $ather and, in case o$ his death or incapacity, the mother, are responsible $or the
damages caused by the minor children who live in their company.
6uardians are liable $or damages caused by the minors or incapacitated persons who are
under their authority and live in their company.
Professor Ruben F. Balane Pa)e ./ of +,-
'ccording to Dro$essor @alane, this is cra7y. The basis $or vicarious liability is
parental authority. /ince parents and guardians no longer e(ercise parental
authority, they should no longer be made liable. This is un*ust because the
parents are no longer in a position to prevent their emancipated children $rom
acting ? responsibility without power.
0 B o$ 'rticle 180 has been repealed by 'rticle 1
o$ the Family Code.

!I. Absence
1 'bsence is that special legal status o$ one who is not in his domicile, his
whereabouts being un,nown and it being uncertain whether he is dead or alive.
Example: #hen ;acson went to the "/, ;acson was not absent since his whereabouts
were ,nown.
0 /tages o$ 'bsence ='ccording to /eriousness>
0 Temporar" or Provisional ='rticles !81 ? !8!>
Art. 381. 0hen a person disappears from his domicile% his
whereabouts being unknown% and without leaving an agent to administer
his propert"% the judge% at the instance of an interested part"% a relative%
or a friend% ma" appoint a person to represent him in all that ma" be
necessar".
This same rule shall be observed when under similar circumstances
the power conferred b" the absentee has e-pired.
Art. 382. The appointment referred to in the preceding article
having been made% the judge shall take the necessar" measures to
safeguard the rights and interests of the absentee and shall specif" the
powers% obligations and remuneration of his representative% regulating
them% according to the circumstances% b" the rules concerning guardians.
Art. 383. ,n the appointment of a representative% the spouse
present shall be preferred when there is no legal separation.
,f the absentee left no spouse% or if the spouse present is a minor% an"
competent person ma" be appointed b" the court.
0 -e.uisites $or Drovisional 'bsence
0 'bsence $or an appreciable period which depends upon the
circumstances
1 9mmediate necessity $or his representation in some speci$ic urgent
matter
'bsentee le$t no agent or the agency has e(pired.
0 The declaration o$ provisional absence =must go to court> is limited to a
speci$ic act.
Art. %%). Darents and other persons e(ercising parental authority shall be civilly liable $or the
in*uries and damages caused by the acts or omissions o$ their unemancipated children living in
their company and under their parental authority sub*ect to the appropriate de$enses
provided by law.
1 2ormal or Declared ='rticles !8% ? !8:>
Art. 384. Two "ears having elapsed without an" news about the
absentee or since the receipt of the last news% and five "ears in case the
absentee has left a person in charge of the administration of his propert"%
his absence ma" be declared.
Art. 385. The following ma" ask for the declaration of absence+
5'7 The spouse present3
567 The heirs instituted in a will% who ma" present an authentic cop"
of the same3
587 The relatives who ma" succeed b" the law of intestac"3
5=7 Those who ma" have over the propert" of the absentee some
right subordinated to the condition of his death.
Art. 386. The judicial declaration of absence shall not take effect
until si- months after its publication in a newspaper of general
circulation.
Art. 387. An administrator of the absentee;s propert" shall be
appointed in accordance with article 8D8.
Art. 388. The wife who is appointed as an administratri- of the
husband;s propert" cannot alienate or encumber the husband;s propert"%
or that of the conjugal partnership% without judicial authorit".
Art. 389. The administration shall cease in an" of the following
cases+
5'7 0hen the absentee appears personall" or b" means of an agent3
567 0hen the death of the absentee is proved and his testate or
intestate heirs appear3
587 0hen a third person appears% showing b" a proper document that
he has ac.uired the absentee;s propert" b" purchase or other
title.
,n these cases the administrator shall cease in the performance of
his office% and the propert" shall be at the disposal of those who ma"
have a right thereto.
1 Deriods
0 years ? i$ he did not leave an agent
1 0 years ? i$ he le$t an agent
0 Computation o$ Deriod
a. 9$ no news, the period must be computed $rom the date o$ disappearance.
b. 9$ there is news, the period must be computed $rom the last time the
absentee was re$erred to in the news =not receipt o$ last news>
For e(ample, T in 1::3 goes on a world tour. 2n Earch 1, T poses $or a
picture and sends a postcard. This is received by H on /eptember 1. T is
not heard $rom again. 'ccording to Dro$essor @alane, the disappearance
should be counted $rom Earch 1 and not /eptember 1. Counting $rom
/eptember 1 *ust doesnt ma,e senseU
The purpose o$ the declaration o$ absence is $or the court to have someone to
administer the property o$ the absentee ? 'rticle !8%. 9$ the absentee le$t no
property to administer, then one cannot resort to a declaration o$ absence.
For purposes o$ re4marriage, a declaration o$ absence is not proper. 9n this
case, what is re.uired is a summary proceeding $or presumptive death.
8. Presumptive Death
a. ,r+inar! &resupti(e Deat" ='rticle !:0>
Art. 390. After an absence of seven "ears% it being unknown
whether or not the absentee still lives% he shall be presumed dead for
all purposes% e-cept for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten "ears. ,f he
disappeared after the age of sevent"/five "ears% an absence of five
"ears shall be sufficient in order that his succession ma" be opened.
0 9$ absentee is 50 or below
0 5 years ? $or all purposes e(cept succession
1 10 years 4 $or succession
1 9$ absentee is over 50 years old
0 0 years $or all purposes
b. -uali.ie+ &resupti(e Deat" ='rticle !:1>
Art. 391. The following shall be presumed dead for all
purposes% including the division of the estate among the heirs+
5'7 A person on board a vessel lost during a sea vo"age% or an
aeroplane which is missing% who has not been heard of for
four "ears since the loss of the vessel or aeroplane3
567 A person in the armed forces who has taken part in war% and
has been missing for four "ears3
587 A person who has been in danger of death under other
circumstances and his e-istence has not been known for four
"ears.
0 Derson on board a vessel lost during a sea voyage, missing airplane
, person in the armed $orces who has ta,en part in war, a person who has
been in danger o$ death under other circumstances and his e(istence is not
,nown.
1 General *ule+ % years $or all purposes
Professor Ruben F. Balane Pa)e ., of +,-
Exception: years $or purposes o$ remarriage ='rticle %1, Family
Code>
Art. 41. A marriage contracted b" an" person during
subsistence of a previous marriage shall be null and void% unless
before the celebration of the subse.uent marriage% the prior
spouse had been absent for four consecutive "ears and the spouse
present has a well/founded belief that the absent spouse was
alread" dead. ,n case of disappearance where there is danger of
death under the circumstances set forth in the provisions of Article
8E' of the Civil Code% an absence of onl" two "ears shall be
sufficient.
Aor the purpose of contracting the subse.uent marriage
under the preceding paragraph the spouse present must institute
a summar" proceeding as provided in this Code for the declaration
of presumptive death of the absentee% without prejudice to the
effect of reappearance of the absent spouse.
0 #hen can you as, $or a decree o$ presumptive death $or purposes
o$ remarriage)
0 % years a$ter disappearance
1 years i$ the circumstances $all under 'rticle !:1
1 "nder these rules on presumptive death, there is no need $or a
court decree. The mere running o$ the period raises the presumption o$
death.
Aowever, $or purposes o$ remarriage, a summary proceeding is
re.uired under 'rticle %1 o$ the Family Code. 2therwise, the subse.uent
marriage is void.
! 9n the case o$ Eastern +#ipping vs. Lucas, the /upreme Court did
not apply 'rticle !:1. The /upreme Court said that 'rticle !:1 is a
rebuttable presumption. @eing a presumption, 'rticle !:1 is applied only i$
there is no evidence. 9n this case, the /upreme Court had enough evidence
to rule that the seaman was really dead.
!II.Funerals
Art. 305. The dut" and the right to make arrangements for the funeral of
a relative shall be in accordance with the order established for support% under
article 6E=. ,n case of descendants of the same degree% or of brothers and
sisters% the oldest shall be preferred. ,n case of ascendants% the paternal shall
have a better right.
0 The order given in 'rticle !00 as to who has the right to ma,e $uneral
arrangements $ollows the order $or support under 'rticle 1::
C
o$ the Family Code.
*
Art. )22. #henever two or more persons are obliged to give support, the liability shall devolve
upon the $ollowing persons in the order herein provided<
=1> The spouse&
=> The descendants in the nearest degree&
=!> The ascendants in the nearest degree& and
Professor Ruben F. Balane Pa)e .- of +,-
Art. 306. :ver" funeral shall be in keeping with the social position of the
deceased.
Art. 307. The funeral shall be in accordance with the e-pressed wishes of
the deceased. ,n the absence of such e-pression% his religious beliefs or
affiliation shall determine the funeral rites. ,n case of doubt% the form of the
funeral shall be decided upon b" the person obliged to make arrangements for
the same% after consulting the other members of the famil".
Art. 308. 2o human remains shall be retained% interred% disposed of or
e-humed without the consent of the persons mentioned in articles 6E= and 84).
Art. 309. An" person who shows disrespect to the dead% or wrongfull"
interferes with a funeral shall be liable to the famil" of the deceased for
damages% material and moral.
Art. 310. The construction of a tombstone or mausoleum shall be
deemed a part of the funeral e-penses% and shall be chargeable to the conjugal
partnership propert"% if the deceased is one of the spouses.
!III. Civil Re)istr9
The Civil -egistry is the repository o$ relevant $acts o$ a person =birth, adoption,
nationali7ation, marriage, death, etc.>
Art. 407. Acts% events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
'nything which a$$ects the civil status o$ persons shall be recorded in the Civil
-egister. (Read also Article 1 o! PD &0(
)
Art. =4D. The following shall be entered in the civil register+ 5'7
Girths3 567 marriages3 587 deaths3 5=7 legal separations3 5)7 annulments of
marriage3 5B7 judgments declaring marriages void from the beginning3 5C7
legitimations3 5D7 adoptions3 5E7 acknowledgments of natural children3 5'47
naturali$ation3 5''7 loss% or 5'67 recover" of citi$enship3 5'87 civil interdiction3
=%> The brothers and sisters.
_
'rt. 5. ,onBdisclosure o! -irt# Records. 4 The records o$ a personGs birth shall be ,ept strictly
con$idential and no in$ormation relating thereto shall be issued e(cept on the re.uest o$ any o$ the
$ollowing<
=1> The person himsel$, or any person authori7ed by him&
=> Ais spouse, his parent or parents, his direct descendants, or the guardian or institution
legally in4charge o$ him i$ he is a minor&
=!> The court or proper public o$$icial whenever absolutely necessary in administrative, *udicial
or other o$$icial proceedings to determine the identity o$ the childGs parents or other
circumstances surrounding his birth& and
=%> 9n case o$ the personGs death, the nearest o$ ,in.
'ny person violating the prohibition shall su$$er the penalty o$ imprisonment o$ at least two
months or a $ine in an amount not e(ceeding $ive hundred pesos, or both, in the discretion o$ the
court.
5'=7 judicial determination of filiation3 5')7 voluntar" emancipation of a minor3
and 5'B7 changes of name.
Art. 409. ,n cases of legal separation% adoption% naturali$ation and other
judicial orders mentioned in the preceding article% it shall be the dut" of the
clerk of the court which issued the decree to ascertain whether the same has
been registered% and if this has not been done% to send a cop" of said decree to
the civil registr" of the cit" or municipalit" where the court is functioning.
Art. 410. The books making up the civil register and all documents
relating thereto shall be considered public documents and shall be pria .acie
evidence of the facts therein contained.
Dublic documents shall be presumed to be accurate.
"nder 'rticle 5 o$ D+ 30!, public documents are not accessible to everybody.
Correlate 'rticle %10 with 'rticle 10 o$ -' 800
=The +omestic 'doption 'ct>.

Art. 411. :ver" civil registrar shall be civill" responsible for an"
unauthori$ed alteration made in an" civil register% to an" person suffering
damage thereb". 9owever% the civil registrar ma" e-empt himself from such
liabilit" if he proves that he has taken ever" reasonable precaution to prevent
the unlawful alteration.
Art. 412. 2o entr" in a civil register shall be changed or corrected%
without a judicial order.
1ntries in the civil register can only be corrected by a *udicial proceeding. #ithout
the *udicial proceeding, the person would be guilty o$ $alsi$ication o$ public documents
and possibly other crimes regarding the civil status o$ persons =i.e., simulation o$
birth>
2riginally, 'rticle %1 could only be resorted to i$ the error was merely clerical. 9n
-arreto vs. Local ;ivil Registrar, the /upreme Court de$ined a clerical error as one
which is visible to the eyes or obvious to the understanding. 9n this case, the alleged
error being the gender o$ the person, the alleged error could not be determined by a
re$erence to the record.
9n recent years, the /upreme Court has ruled that a petition $or correction o$ entry
under 'rticle %1 and -ule 108 can be availed o$ to correct the $ollowing errors<
0 Clerical
_
Sec. 15. Confidential Nature of Proceedings and Records. All hearings in
adoption cases shall be confidential and shall not be open to the public.
All records, books, and papers relating to the adoption cases in the files
of the court, the Department, or any other agency or institution
participating in the adoption proceedings shall be kept strictly
confidential.
If the court finds that the disclosure of the information to a third
person is necessary for purposes connected with or arising out of the
adoption and will be for the best interest of the adoptee, the court may
merit the necessary information to be released, restricting the purposes
for which it may be used.
Professor Ruben F. Balane Pa)e +4 of +,-
1 /ubstantial
9$ the error is clerical, a summary proceeding is enough. 9$ the error is substantial,
an adversary proceeding with notice to all parties is necessary.
Art. 413. All other matters pertaining to the registration of civil status
shall be governed b" special laws.
FA$IL% RELATI"NS
I. $arria)e
Art. 1. <arriage is a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of
conjugal and famil" life. ,t is the foundation of the famil" and an inviolable
social institution whose nature% conse.uences% and incidents are governed b"
law and not subject to stipulation% e-cept that marriage settlements ma" fi- the
propert" relations during the marriage within the limits provided b" this Code.
0 Earriage is a contract. 9t is a contract and much more. 9t is a contract o$
permanent union between a man and a woman. ' contract o$ marriage unli,e other
contracts con$ers status.
1 The primordial purpose o$ marriage is the establishment o$ $amily li$e.
6enerally in contracts, the parties are $ree to enter into contractual stipulations.
Aowever, in a marriage contract parties are generally not $ree to enter into contractual
stipulations. 'll the conse.uences o$ marriage are determined by law. The only area in
which the parties may stipulate is with regard to property relations as long as these
stipulations are not contrary to law. 9n $act, the parties are not limited to the ! ma*or
regimes in the Family Code.
Art. 2. 2o marriage shall be valid% unless these essential re.uisites are
present+
5'7 !egal capacit" of the contracting parties who must be a male and a
female3 and
567 Consent freel" given in the presence of the solemni$ing officer.
Art. 3. The formal re.uisites of marriage are+
5'7 Authorit" of the solemni$ing officer3
567 A valid marriage license e-cept in the cases provided for in Chapter 6 of
this Title3 and
587 A marriage ceremon" which takes place with the appearance of the
contracting parties before the solemni$ing officer and their personal
declaration that the" take each other as husband and wife in the
presence of not less than two witnesses of legal age.
Art. 4. The absence of an" of the essential or formal re.uisites shall
render the marriage void a' initio% e-cept as stated in Article 8) 567.
Professor Ruben F. Balane Pa)e +* of +,-
A defect in an" of the essential re.uisites shall not affect the validit" of
the marriage but the part" or parties responsible for the irregularit" shall be
civill"% criminall" and administrativel" liable.
0 Iinds o$ 1lements
4 :ssential
0 ;egal capacity =included in legal capacity is the di$$erence in se(>
1 Consent
' Aormal
0 'uthority o$ the solemni7ing 2$$icer
1 Valid marriage license
Earriage ceremony
1 ! terms
4 Absence
General *ule+ The absence o$ either an essential or $ormal re.uisite
ma,es the marriage void.
3 Exceptions:
0 Article 35$ para/rap" 2 =party believes in good $aith that the
solemni7ing o$$icer has authority>
Art. 35. The following marriages shall be void from the
beginning+
567 Those solemni$ed b" an" person not legall" authori$ed to
perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the
solemni$ing officer had the legal authorit" to do so3
1 0arria/es exepte+ .ro arria/e license ='rticles 5, 8,
!1, !, !!, !%>
Art. 27. ,n case either or both of the contracting parties are
at the point of death% the marriage ma" be solemni$ed without
necessit" of a marriage license and shall remain valid even if the
ailing part" subse.uentl" survives.
Art. 28. ,f the residence of either part" is so located that
there is no means of transportation to enable such part" to appear
personall" before the local civil registrar% the marriage ma" be
solemni$ed without necessit" of a marriage license.
Art. 31. A marriage in articulo ortis between passengers or
crew members ma" also be solemni$ed b" a ship captain or b" an
airplane pilot not onl" while the ship is at sea or the plane is in
flight% but also during stopovers at ports of call.
Art. 32. A militar" commander of a unit% who is a
commissioned officer% shall likewise have authorit" to solemni$e
Professor Ruben F. Balane Pa)e +. of +,-
marriages in articulo mortis between persons within the $one of
militar" operation% whether members of the armed forces or
civilians.
Art. 33. <arriages among <uslims or among members of the
ethnic cultural communities ma" be performed validl" without the
necessit" of marriage license% provided the" are solemni$ed in
accordance with their customs% rites or practices.
Art. 34. 2o license shall be necessar" for the marriage of a
man and a woman who have lived together as husband and wife for
at least five "ears and without an" legal impediment to marr" each
other. The contracting parties shall state the foregoing facts in an
affidavit before an" person authori$ed b" law to administer oaths.
The solemni$ing officer shall also state under oath that he
ascertained the .ualifications of the contracting parties are found
no legal impediment to the marriage.
' Defect
0 +e$ect occurs in essential re.uisites alone.
1 Fairly well4de$ined since there are many speci$ic articles.
E..ect: Earriage is voidable
6 ,rregularit"
0 9rregularity re$ers to $ormal re.uisites alone
1 No enumeration as to irregularity unli,e de$ect
2 E..ects:
0 Valid marriage
1 Darty responsible $or irregularity may be held liable
0 Difference in @e- ='rticles =1>, % B1, !:>
Art. 2 112. 2o marriage shall be valid% unless these essential
re.uisites are present+
5'7 !egal capacit" of the contracting parties who must be a male and
a female3
0 +i$$erence in se( is e(plicitly re.uired $or the $irst time. 9t was necessary
to ma,e this e(plicit since some *urisdictions allow same se( marriages.
Art. 4. The absence of an" of the essential or formal re.uisites
shall render the marriage void a' initio$ e-cept as stated in Article 8) 567.
1 The absence o$ this re.uisite ma,es the marriage void.
Art. 39. The action or defense for the declaration of absolute
nullit" shall not prescribe.
Professor Ruben F. Balane Pa)e ++ of +,-
The period to have the marriage declared void is imprescriptible, the
element being essential.
1 @ome Aorm of Ceremon" ='rticles !=!>, % B1, 3, 8>
587 A marriage ceremon" which takes place with the appearance of
the contracting parties before the solemni$ing officer and their
personal declaration that the" take each other as husband and
wife in the presence of not less than two witnesses of legal age.
shall render the marriage void a' initio% e-cept as stated in Article 8) 567.
Art. 6. 2o prescribed form or religious rite for the solemni$ation of
the marriage is re.uired. ,t shall be necessar"% however% for the
contracting parties to appear personall" before the solemni$ing officer
and declare in the presence of not less than two witnesses of legal age
that the" take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed b" the
contracting parties and their witnesses and attested b" the solemni$ing
officer.
,n case of a marriage in articulo mortis% when the part" 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 part"%
which fact shall be attested b" the solemni$ing officer.
! The $ollowing are the barest minimum re.uired<
0 Dersonal appearance o$ parties be$ore the solemni7ing o$$icer
1 +eclaration that they ta,e each other as husband and wi$e
=mani$estation o$ intent>
% The law does not re.uire a speci$ic ceremony neither does it re.uire
speci$ic words or symbols.
0 Earriages by pro(y are N2T ';;2#1+ since the contracting parties must
personally appear be$ore the solemni7ing o$$icer.
3 The intent =their declaration that they each other as husband and wi$e>
may be mani$ested in any $orm =i.e. words, gestures, etc.>. 9n the case o$
9artinez vs. 7an the intent was mani$ested in writing.
5 /ome commentaries say that the witnesses must be o$ legal age. 2thers
say they need not be o$ legal age. To be sa$e, the witnesses should be o$ legal
age.
Art. 8. The marriage shall be solemni$ed publicl" in the chambers
of the judge or in open court% in the church% chapel or temple% or in the
office the consul/general% consul or vice/consul% as the case ma" be% and
not elsewhere% e-cept in cases of marriages contracted on the point of
Professor Ruben F. Balane Pa)e +/ of +,-
death or in remote places in accordance with Article 6E
of this Code% or
where both of the parties re.uest the solemni$ing officer in writing in
which case the marriage ma" be solemni$ed at a house or place
designated b" them in a sworn statement to that effect.
C. !egal Capacit" ='rticle =1>>
Art. 2. 2o marriage shall be valid% unless these essential re.uisites
are present+
5'7 !egal capacit" of the contracting parties who must be a male and
a female3
'. A/e ='rticles 0, !0=1>, !:, %0=1>, !5=1>>
Art. 5. An" male or female of the age of eighteen "ears or
upwards not under an" of the impediments mentioned in Articles 8C
and 8D% ma" contract marriage.
0 For both male and $emale, the minimum age is 18.
beginning+
5'7 Those contracted b" an" part" below eighteen "ears of age
even with the consent of parents or guardians3
1 9$ any contracting party is below 18, the marriage is void.
The period to have the marriage declared void shall not prescribe.
Art. 45. A marriage ma" be annulled for an" of the following
causes% e-isting at the time of the marriage+
5'7 That the part" in whose behalf it is sought to have the
marriage annulled was eighteen "ears of age or over but
below twent"/one% and the marriage was solemni$ed without
the consent of the parents% guardian or person having
substitute parental authorit" over the part"% in that order%
unless after attaining the age of twent"/one% such part" freel"
cohabited with the other and both lived together as husband
and wife3
_
Art. %2. 9n the cases provided $or in the two preceding articles, the solemni7ing o$$icer shall
state in an a$$idavit e(ecuted be$ore the local civil registrar or any other person legally authori7ed
to administer oaths that the marriage was per$ormed in articulo mortis or that the residence o$
either party, speci$ying the barrio or barangay, is so located that there is no means o$
transportation to enable such party to appear personally be$ore the local civil registrar and that the
o$$icer too, the necessary steps to ascertain the ages and relationship o$ the contracting parties
and the absence o$ legal impediment to the marriage.
Art. 47. The action for annulment of marriage must be filed b"
the following persons and within the periods indicated herein+
5'7 Aor causes mentioned in number ' of Article =) b" the part"
whose parent or guardian did not give his or her consent%
within five "ears after attaining the age of twent"/one% or b"
the parent or guardian or person having legal charge of the
minor% at an" time before such part" has reached the age of
twent"/one3
! +espite -.'. No. 380:, parental consent is re.uired $or a
contracting party who has not yet reached 1.
% 'rticle %5=1> tells us who can set aside the marriage which is
voidable $or lac, o$ the necessary parental consent. The parent who did
not give he necessary parental consent until such child reaches the age o$
3.
0 Aowever in 'rticle %0=1>, rati$ication o$ the marriage is possible i$
the party who needed parental consent cohabits with the other spouse.
-ati$ication may only occur a$ter such party reaches 1.
3 2nce the marriage has been rati$ied, the parents cannot annul
under this ground.
5 9$ the parents $iled the annulment be$ore their child reached 1, but
upon reaching 1, their child cohabits, the action to annul the marriage
continues. #hat would be determinative in such a situation is the time o$
$iling.
8 The capacitated person or his parents may not have the marriage
annulled $or lac, o$ parental consent.
6. Relations"ip ='rticles !5, !8 =148>, !:>
Art. 37. <arriages between the following are incestuous and
void from the beginning% whether relationship between the parties be
legitimate or illegitimate+
5'7 Getween ascendants and descendants of an" degree3 and
567 Getween brothers and sisters% whether of the full or half
blood.
0 9ncestuous -elationship
0 9n the direct line, in any degree ? no limit
1
nd
degree collaterals =brothers F sisters> whether $ull or hal$ blood,
legitimate or illegitimate
beginning for reasons of public polic"+
5'7 Getween collateral blood relatives whether legitimate or
illegitimate% up to the fourth civil degree3
567 Getween step/parents and step/children3
587 Getween parents/in/law and children/in/law3
5=7 Getween the adopting parent and the adopted child3
5)7 Getween the surviving spouse of the adopting parent and the
adopted child3
5B7 Getween the surviving spouse of the adopted child and the
adopter3
5C7 Getween an adopted child and a legitimate child of the
adopter3
5D7 Getween adopted children of the same adopter3
1 'rticle !8 =1> re$ers to uncles, aunts and $irst cousins
'rticle !8 =!> is a new provision ? marriage between parents4in4law
and children4in4law
! 'rticles !8 =0> and !8 =3> are provided $or to guard against scandal
? marriage between the surviving spouse o$ the adopting parent and the
adopted child& marriage between the surviving spouse o$ the adopted child
and adopter.
% 'rticle !8 =8> prohibits the marriage between adopted children o$
the same adopter while 'rt. !8 =5> prohibits the marriage between an
adopted child and a legitimate child o$ the adopted. #hat is not prohibited
are the $ollowing<
0 Earriage between an adopted child and an illegitimate child o$ the
adopter.
1 Earriage between stepchildren
0 The period to have the marriage declared void shall not prescribe.
8. &rior 0arria/e ='rticles !0 =%>, !0 =3>, %0, %1, %, %!, %%, 0, 0! F !:>
1 The $ollowing are marriages which are de$ective because o$ a prior
marriage<
a. Gigamous or pol"gamous marriages not falling under Article ='
beginning+
5=7 Those bigamous or pol"gamous marriages not falling
under Article ='3
0 9$ the marriage $alls under 'rticle %1, the marriage is valid.
Art. 41. A marriage contracted b" an" person during
subsistence of a previous marriage shall be null and void% unless
before the celebration of the subse.uent marriage% the prior
spouse had been absent for four consecutive "ears and the
spouse present has a well/founded belief that the absent spouse
was alread" dead. ,n case of disappearance where there is
danger of death under the circumstances set forth in the
Professor Ruben F. Balane Pa)e +, of +,-
provisions of Article 8E' of the Civil Code% an absence of onl"
two "ears shall be sufficient.
Aor the purpose of contracting the subse.uent marriage
under the preceding paragraph the spouse present must
institute a summar" proceeding as provided in this Code for the
declaration of presumptive death of the absentee% without
prejudice to the effect of reappearance of the absent spouse.
Art. 42. The subse.uent marriage referred to in the
preceding Article shall be automaticall" terminated b" the
recording of the affidavit of reappearance of the absent spouse%
unless there is a judgment annulling the previous marriage or
declaring it void a' initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registr" of the
residence of the parties to the subse.uent marriage at the
instance of an" interested person% with due notice to the
spouses of the subse.uent marriage and without prejudice to
the fact of reappearance being judiciall" determined in case
such fact is disputed.
1 -e.uisites o$ a marriage under 'rticle %1<
0 'bsence o$ a prior spouse $or at least % consecutive years or
consecutive years i$ the circumstances $all under 'rt. !:1.
1 /pouse presents a well4$ounded belie$ that the absent
spouse was already dead
9nstitution by the present spouse o$ a summary proceeding
$or the declaration o$ presumptive death.
0 -ules $or marriages under 'rticle %1
0 The marriage is valid until it is terminated under 'rticle %
=,ote: The term OterminatedP and not OannulledP is used since
the
nd
marriage is not a de$ective but a regular marriage>
1 General *ule+ The termination o$ the
nd
marriage ta,es
e$$ect upon the recording o$ the a$$idavit o$ reappearance o$ the
absent spouse.
Exception: There is no termination o$ the
nd
marriage i$
there is a *udgment o$ annulment or nullity with regard to the 1
st
marriage.
1 'ny interested party may case the recording o$ the a$$idavit
o$ reappearance =i.e., present spouse, absent spouse, subse.uent
spouse, children>
The a$$idavit o$ reappearance should contain the $acts and
circumstances o$ appearance
! The a$$idavit o$ reappearance must be recorded in the civil
registry o$ the residence o$ the parties to the subse.uent marriage.
% E..ecti(eness: The a$$idavit o$ reappearance is su$$icient in
itsel$ unless it is *udicially challenged.
Professor Ruben F. Balane Pa)e +- of +,-
Art. 43. The termination of the subse.uent marriage
referred to in the preceding Article shall produce the following
effects+
5'7 The children of the subse.uent marriage conceived
prior to its termination shall be considered legitimate3
567 The absolute communit" of propert" or the conjugal
partnership% as the case ma" be% shall be dissolved and
li.uidated% but if either spouse contracted said
marriage in bad faith% his or her share of the net profits
of the communit" propert" or conjugal partnership
propert" shall be forfeited in favor of the common
children or% if there are none% the children of the guilt"
spouse b" a previous marriage or in default of children%
the innocent spouse3
587 Donations b" reason of marriage shall remain valid%
e-cept that if the donee contracted the marriage in bad
faith% such donations made to said donee are revoked
b" operation of law3
5=7 The innocent spouse ma" revoke the designation of the
other spouse who acted in bad faith as beneficiar" in
an" insurance polic"% even if such designation be
stipulated as irrevocable3 and
5)7 The spouse who contracted the subse.uent marriage in
bad faith shall be dis.ualified to inherit from the
innocent spouse b" testate and intestate succession.
0 E..ects:
0 1ssentially, 1
st
marriage continues.
1 'ccording to 'rticle %! =0>, the spouse who contracted the
subse.uent marriage in bad $aith shall be dis.uali$ied to inherit
$rom the innocent spouse ? testate and intestate succession.
There$ore, the implication sis that i$ the parties are in good
$aith, they are still heirs o$ each other. Dro$essor @alane doesnt
agree with this. 'ccording to Dro$essor @alane, i$ the
nd
marriage is terminated, it should $ollow that the parties to the
second marriage lose their right to be heirs o$ each other.
Art. 44. ,f both spouses of the subse.uent marriage
acted in bad faith% said marriage shall be void a' initio and all
donations b" reason of marriage and testamentar" dispositions
made b" one in favor of the other are revoked b" operation of
law.
b. >oid under Article =4
Art. 40. The absolute nullit" of a previous marriage ma"
be invoked for purposes of remarriage on the basis solel" of a
final judgment declaring such previous marriage void.
0 1ven i$ the 1
st
marriage is void, there is still a need $or a
summary proceeding declaring such marriage void a5 initio. Thus,
i$ a
nd
marriage is contracted without $irst securing the declaration
o$ nullity with regard to the 1
st
marriage, then the
nd
marriage is
also void. Dlus, bigamy has been committed.
c. >oid under Article )8 5in relation to Article )67
beginning+
5B7 Those subse.uent marriages that are void under Article
)8.
Art. 52. The judgment of annulment or of absolute nullit"
of the marriage% the partition and distribution of the properties
of the spouses and the deliver" of the children;s presumptive
legitimes shall be recorded in the appropriate civil registr" and
registries of propert"3 otherwise% the same shall not affect third
persons.
Art. 53. :ither of the former spouses ma" marr" again
after compliance with the re.uirements of the immediatel"
preceding Article3 otherwise% the subse.uent marriage shall be
null and void.
0 +espite declaration o$ annulment or nullity o$ the marriage,
be$ore the $ormer spouses may contract a subse.uent marriage, the
$ollowing must be recorded in the appropriate civil registry and
registries o$ property<
0 Mudgment o$ annulment or o$ absolute nullity
1 Dartition and distribution o$ the properties o$ the spouses
+elivery o$ the childrens presumptive legitime
1 9$ the preceding tas,s are not accomplished, then any
subse.uent marriage is void.
Art. 39. The action or defense for the declaration of
absolute nullit" shall not prescribe.
The period to have the marriage declared void shall not prescribe.
=. *rie ='rticle !8 =:>>
beginning for reasons of public polic"+
5E7 Getween parties where one% with the intention to marr" the
other% killed that other person;s spouse% or his or her own
spouse.
! changes $rom 'rticle 80 =3> o$ the Civil Code
Professor Ruben F. Balane Pa)e /4 of +,-
0 9ntention $or ,illing must be in order to marry the surviving spouse
1 No conviction is re.uired.
% 'rticle !8 =:> e(cludes ,illing thru negligence since there is no
intent to ,ill.
0 The di$$iculty in 'rticle !8 =:> is proving that the reason $or ,illing is
to enable the ,iller and the surviving spouse to marry each other.
Professor Ruben F. Balane Pa)e /* of +,-
). &"!sical 3ncapacit! ='rticles %0 =0>, %5 =0>>
5)7 That either part" was ph"sicall" incapable of consummating
the marriage with the other% and such incapacit" continues
and appears to be incurable3 or
5)7 Aor causes mentioned in number ) and B of Article =)% b" the
injured part"% within five "ears after the marriage.
0 These articles re$er to impotence and not sterility.
1 Een and women are capable o$ impotence. For men, there is
impotence when they cannot erect. For women, impotence occurs when
penetration is not possible ? an anatomical disorder. For men, impotence
may have physical or psychological causes.
-e.uisites o$ 'nnulment +ue to 9mpotence
0 9mpotence e(ists at the time o$ the celebration o$ the marriage
1 The impotence is permanent and incurable =need medical opinion>
The impotence is un,nown to the other spouse.
! The other spouse must also not be impotent.
0 9n some *urisdictions, there is a presumption that i$ a$ter ! years o$
marriage and it is $ound that the woman is still a virgin and su$$ers no
anatomical de$ects, it is presumed that the man is impotent. There is no
Dhilippine case stating that this presumption also applies in the Dhilippines.
=This is ,nown as the Doctrine of Triennial Cohabitation>
1 #hat i$ the man is impotent only with regard to his wi$e) There is
no case yet.
The action $or annulment due to impotence must be $iled by the
in*ured party within 0 years a$ter the marriage.
! ' marriage which is de$ective because o$ a partys impotence
cannot be rati$ied. -ati$ication means cohabitation with se(ual intercourse.
B. &s!c"olo/ical 3ncapacit! ='rticle !3>
Art. 36. A marriage contracted b" an" part" who% at the time of
the celebration% was ps"chologicall" incapacitated to compl" with the
essential marital obligations of marriage% shall likewise be void even if
such incapacit" becomes manifest onl" after its solemni$ation.
0 Dsychological incapacity is not a substitute $or divorce. The theory
behind psychological incapacity is that one or both o$ the spouses cannot
discharge one or more o$ the essential marital obligations ='rticle 38>.
There must be an absolute incapability to do so.
Professor Ruben F. Balane Pa)e /. of +,-
1 +uring the 1
st
years o$ the e$$ectivity o$ the Family Code, many
couples resorted to 'rticle !3 as a convenient way to end their marriage.
's a result o$ these abuses, the /upreme Court became very strict in
applying 'rticle !3.
Dsychological incapacity must e(ist at the time the marriage is
celebrated =li,e impotence>. Aowever, psychological incapacity need not
be mani$ested at the time o$ the celebration o$ the marriage. This is the
tric,y part.
! 9n +antos vs. ;A, the /upreme Court enumerated the $ollowing
characteristics o$ psychological incapacity<
0 6ravity
1 Muridical antecedence
9ncurability
0 9n Repu5lic vs. ;A (9olina), the /upreme Court reiterated +antos
vs. ;A. Furthermore, the /upreme Court laid down several guidelines<
0 The burden o$ proo$ to show the nullity o$ the marriage belongs to
the plainti$$. 'ny doubts should be resolved in $avor o$ the e(istence
and continuation o$ the marriage and against the dissolution and
nullity.
1 The root cause o$ the psychological incapacity must be<
0 Dsychological and not physical =although psychological
incapacity can be mani$ested physically>
1 Eedically or clinically identi$ied
'lleged in the complaint
! Droved su$$iciently by e(perts =i.e. psychiatrists,
psychologists>
% Clearly e(plained in the decision
The incapacity must be proven to be e(isting Oat the time o$ the
celebrationP o$ the marriage.
! /uch incapacity must also be shown to be medically or clinically
permanent or incurable.
% /uch illness must be grave enough to bring about the disability o$
the party to assume the essential obligations o$ marriage
0 The essential marital obligations must be those embraced by
'rticles 30 to 51 o$ the Family Code as regards the husband and wi$e,
as well as 'rticles 0, 1 and 0 o$ the same Code in regard to
parents and their children. /uch non4complied marital obligations must
also be stated in the petition, proven by evidence and included in the
test o$ the decision.
3 9nterpretations given by the National 'ppellate Eatrimonial Tribunal
o$ the Catholic Church in the Dhilippines, while not controlling or
decisive, should be given great respect by our courts.
5 The trial court must order the prosecuting attorney or $iscal and the
/olicitor 6eneral to appear as counsel $or the /tate. The /olicitor
Professor Ruben F. Balane Pa)e /+ of +,-
6enerals role is to issue a certi$ication stating why he does or does not
agree.
1 9n ;#i 9ing 7soi vs. ;A, the convergence o$ all the $actors stated in
the complaint amounted to psychological incapacity.
C. Disease ='rticles %0 =3>, %5 =0>>
5B7 That either part" was afflicted with a se-uall"/transmissible
disease found to be serious and appears to be incurable.
5)7 Aor causes mentioned in number ) and B of Article =)% b" the
injured part"% within five "ears after the marriage.
-e.uisites $or 'nnulment due to disease
1. 1ither party is a$$licted with a se(ually transmissible disease =/T+>
. The /T+ must e(ist at the time the marriage is celebrated
!. The /T+ must be serious
%. The /T+ must be apparently incurable.
0. The /T+ party not a$$licted by /T+ must be ignorant o$ the others
a$$liction =Dro$essor @alanes opinion>
3. The in*ured party must be $ree $rom /T+ =Dro$essor @alanes opinion>
! 'ccording to Dro$essor @alane, '9+/ would $all under 'rticle %0 =3>.
'rticle %0=3> does not say that the only way to transmit the disease is
through se(.
% Dro$essor @alane is not sure i$ it is re.uired that the a$$licted person
should ,now that he has /T+.
0 The in*ured party must be ignorant o$ the other partys a$$liction. 9$
the in*ured party ,new and the marriage too, place, then the in*ured party
has no right to complain.
3 The action to annul the marriage must ta,e place within 0 years
$rom the marriage.
5 The Family Code does not state i$ such a marriage can be rati$ied.
Dro$essor @alane doesnt see why such a marriage cannot be rati$ied.
D. Consent
0 3nsanit! ='rticles %0=>, %5=>>
Professor Ruben F. Balane Pa)e // of +,-
567 That either part" was of unsound mind% unless such part"
after coming to reason% freel" cohabited with the other as
husband and wife3
567 Aor causes mentioned in number 6 of Article =)% b" the same
spouse% who had no knowledge of the other;s insanit"3 or b"
an" relative or guardian or person having legal charge of the
insane% at an" time before the death of either part"% or b" the
insane spouse during a lucid interval or after regaining sanit"3
0 9nsanity is a legal and not a medical .uestion.
1 2ne o$ the spouses must be insane at the time the marriage was
celebrated. Aowever, Dro$essor @alane cannot imagine anyone marrying
an insane person and not ,nowing it.
The $ollowing are the prescriptive periods $or $iling<
1. 't any time be$ore the death o$ either party
0 #ith regard to the same spouse who had no ,nowledge o$
the others sanity or by any relative, guardian or person having
legal charge o$ the insane
. +uring a lucid interval or a$ter regaining sanity ? with regard to the
insane party.
) Cueries:
0 "p to what relatives =degree> can $ile the action $or annulment)
1 Aow long e(actly does the insane spouse have to $ile $or annulment
during a lucid interval or recovery)
-ati$ication by the insane spouse is possible =i.e. during a lucid
interval, the insane spouse cohabits>
6. )rau+ ='rticles %0 =!>, %3>
587 That the consent of either part" was obtained b" fraud% unless
such part" afterwards% with full knowledge of the facts
constituting the fraud% freel" cohabited with the other as husband
and wife3
Art. 46. An" of the following circumstances shall constitute
fraud referred to in 2umber 8 of the preceding Article+
5'7 2on/disclosure of a previous conviction b" final judgment of
the other part" of a crime involving moral turpitude3
567 Concealment b" the wife of the fact that at the time of the
marriage% she was pregnant b" a man other than her husband3
587 Concealment of se-uall" transmissible disease% regardless of
its nature% e-isting at the time of the marriage3 or
5=7 Concealment of drug addiction% habitual alcoholism or
homose-ualit" or lesbianism e-isting at the time of the
marriage.
2o other misrepresentation or deceit as to character% health%
rank% fortune or chastit" shall constitute such fraud as will give
grounds for action for the annulment of marriage.
! Fraud here is not the $raud $ounding contracts and obligations.
Fraud here has a very technical meaning ? 'rticle %3.
% 'rticle %3 is an 1TC;"/9V1 ;9/T.
0 'rticles %3 =1> and => are clear. 9n 'rticle %3 =!>, the /T+ need
not be serious or incurable. 's long as the /T+, e(isting at the time o$
marriage, is concealed, it constitutes $raud.
3 'rticle %3 =%>, must the homose(ual be a practicing homose(ual or
is such se(ual orientation enough under here) There is no *urisprudence
yet.
5 The in*ured party has 0 years $rom the time the $raud was
discovered to $ile $or annulment.
8 ' marriage which is de$ective due to $raud may be rati$ies.
-ati$ication occurs when the in*ured party $reely cohabits with the other
despite having $ull ,nowledge o$ the $acts constituting $raud.
: 9n -uccat vs. -uccat, the /upreme Court said that there was no
concealment by the wi$e o$ the $act that she was pregnant with another
mans child. There was no concealment since at the time o$ marriage, she
was already in her 3
th
month.
Duress 4 .orce$ intii+ation or un+ue in.luence ='rticles %0 =%>, %5
=%>>
5=7 That the consent of either part" was obtained b" force%
intimidation or undue influence% unless the same having
disappeared or ceased% such part" thereafter freel" cohabited
with the other as husband and wife3
5=7 Aor causes mentioned in number = of Article =)% b" the injured
part"% within five "ears from the time the force% intimidation
or undue influence disappeared or ceased3
0 The in*ured party has 0 years $rom the time the $orce, intimidation
or undue in$luence disappeared or ceased to $ile $or annulment.
1 -ati$ication occurs when the $orce, intimidation or undue in$luence
having disappeared or ceased, the in*ured party cohabits.
! <istake as to ,dentit" ='rticles !0 =0>, !:>
beginning+
5)7 Those contracted through mistake of one contracting part" as
to the identit" of the other3
0 ' marriage where there is mista,e as to identity is a void marriage
since consent is completely negated.
1 Eista,e as to identity involves the substitution o$ the other party.
1. Authorit" of the @olemni$ing #fficer ='rticles ! =1>, % =1>, 5, 10, !1, !, !0
=>>
5'7 Authorit" of the solemni$ing officer3
Art. 7. <arriage ma" be solemni$ed b"+
5'7 An" incumbent member of the judiciar" within the court;s
jurisdiction3
567 An" priest% rabbi% imam% or minister of an" church or religious
sect dul" authori$ed b" his church or religious sect and registered
with the civil registrar general% acting within the limits of the
written authorit" granted b" his church or religious sect and
provided that at least one of the contracting parties belongs to
the solemni$ing officer;s church or religious sect3
587 An" ship captain or airplane chief onl" in the case mentioned in
Article 8'3
5=7 An" militar" commander of a unit to which a chaplain is assigned%
in the absence of the latter% during a militar" operation% likewise
onl" in the cases mentioned in Article 863
5)7 An" consul/general% consul or vice/consul in the case provided in
Article '4.
0 'rticle 5, enumerating those persons who may solemni7e a marriage, has
been amended by the ;ocal 6overnment Code. Now, municipal and city
mayors have the authority to solemni7e a marriage.
1 'rticle 5=1>, *ustices o$ the /upreme Court and Court o$ 'ppeals can
solemni7e marriages anywhere in the Dhilippines. Mustices o$ the -egional
Trial Courts and EunicipalKEetropolitanKEunicipal Circuit Trial Courts can only
solemni7e marriages within their territorial *urisdiction.
Art. 10. <arriages between Ailipino citi$ens abroad ma" be
solemni$ed b" a consul/general% consul or vice/consul of the *epublic of
Professor Ruben F. Balane Pa)e /, of +,-
the Philippines. The issuance of the marriage license and the duties of the
local civil registrar and of the solemni$ing officer with regard to the
celebration of marriage shall be performed b" said consular official.
Art. 31. A marriage in articulo mortis between passengers or crew
members ma" also be solemni$ed b" a ship captain or b" an airplane pilot
not onl" while the ship is at sea or the plane is in flight% but also during
stopovers at ports of call.
Art. 32. A militar" commander of a unit% who is a commissioned
officer% shall likewise have authorit" to solemni$e marriages in articulo
mortis between persons within the $one of militar" operation% whether
members of the armed forces or civilians.
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the solemni$ing
officer had the legal authorit" to do so3
'rticle !0 =>, i$ one or both o$ the contracting parties believes in good
$aith that the solemni7ing o$$icer had authority to do so even i$ such person
was not authori7ed, the marriage is not void but valid.
! 6ood $aith in 'rticle !0 => re$ers to a .uestion o$ $act. For e(ample, the
parties did not ,now that the license o$ the priest had e(pired or that the
*udge had retired. 9$ the parties thought that Ding ;acson had the authority
marry them, that is not goo$ $aith. That is ignorance o$ the law. The same is
also true i$ the parties believe that an -TC *udge o$ Que7on City can marry
them in Tawi4Tawi. That is an error o$ law.
F. <arriage !icense ='rticles ! =>, % =1>, % =!>, !0 =!>, : ? 1Wre$ers to the
administrative re.uirementsX, 5 ? !%>
567 A valid marriage license e-cept in the cases provided for in
Chapter 6 of this Title3
A defect in an" of the essential re.uisites shall not affect the
validit" of the marriage but the part" or parties responsible for the
irregularit" shall be civill"% criminall" and administrativel" liable.
preceding Chapter3
Art. 9. A marriage license shall be issued b" the local civil registrar
of the cit" or municipalit" where either contracting part" habituall"
Professor Ruben F. Balane Pa)e /- of +,-
resides% e-cept in marriages where no license is re.uired in accordance
with Chapter 6 of this Title.
Art. 10. <arriages between Ailipino citi$ens abroad ma" be
solemni$ed b" a consul/general% consul or vice/consul of the *epublic of
the Philippines. The issuance of the marriage license and the duties of the
local civil registrar and of the solemni$ing officer with regard to the
celebration of marriage shall be performed b" said consular official.
Art. 11. 0here a marriage license is re.uired% each of the
contracting parties shall file separatel" a sworn application for such
license with the proper local civil registrar which shall specif" the
following+
5'7 Aull name of the contracting part"3
567 Place of birth3
587 Age and date of birth3
5=7 Civil status3
5)7 ,f previousl" married% how% when and where the previous
marriage was dissolved or annulled3
5B7 Present residence and citi$enship3
5C7 Degree of relationship of the contracting parties3
5D7 Aull name% residence and citi$enship of the father3
5E7 Aull name% residence and citi$enship of the mother3 and
5'47 Aull name% residence and citi$enship of the guardian or person
having charge% in case the contracting part" has neither father
nor mother and is under the age of twent"/one "ears.
The applicants% their parents or guardians shall not be re.uired to
e-hibit their residence certificates in an" formalit" in connection with the
securing of the marriage license.
Art. '6. The local civil registrar% upon receiving such
application% shall re.uire the presentation of the original birth certificates
or% in default thereof% the baptismal certificates of the contracting parties
or copies of such documents dul" attested b" the persons having custod"
of the originals. These certificates or certified copies of the documents b"
this Article need not be sworn to and shall be e-empt from the
documentar" stamp ta-. The signature and official title of the person
issuing the certificate shall be sufficient proof of its authenticit".
,f either of the contracting parties is unable to produce his birth or
baptismal certificate or a certified cop" of either because of the
destruction or loss of the original or if it is shown b" an affidavit of such
part" or of an" other person that such birth or baptismal certificate has
not "et been received though the same has been re.uired of the person
having custod" thereof at least fifteen da"s prior to the date of the
application% such part" ma" furnish in lieu thereof his current residence
certificate or an instrument drawn up and sworn to before the local civil
registrar concerned or an" public official authori$ed to administer oaths.
@uch instrument shall contain the sworn declaration of two witnesses of
lawful age% setting forth the full name% residence and citi$enship of such
contracting part" and of his or her parents% if known% and the place and
date of birth of such part". The nearest of kin of the contracting parties
shall be preferred as witnesses% or% in their default% persons of good
reputation in the province or the localit".
The presentation of birth or baptismal certificate shall not be
re.uired if the parents of the contracting parties appear personall" before
the local civil registrar concerned and swear to the correctness of the
lawful age of said parties% as stated in the application% or when the local
civil registrar shall% b" merel" looking at the applicants upon their
personall" appearing before him% be convinced that either or both of them
have the re.uired age.
Art. 13. ,n case either of the contracting parties has been
previousl" married% the applicant shall be re.uired to furnish% instead of
the birth or baptismal certificate re.uired in the last preceding article% the
death certificate of the deceased spouse or the judicial decree of the
absolute divorce% or the judicial decree of annulment or declaration of
nullit" of his or her previous marriage.
,n case the death certificate cannot be secured% the part" shall
make an affidavit setting forth this circumstance and his or her actual
civil status and the name and date of death of the deceased spouse.
Art. 14. ,n case either or both of the contracting parties% not
having been emancipated b" a previous marriage% are between the ages
of eighteen and twent"/one% the" shall% in addition to the re.uirements of
the preceding articles% e-hibit to the local civil registrar% the consent to
their marriage of their father% mother% surviving parent or guardian% or
persons having legal charge of them% in the order mentioned. @uch
consent shall be manifested in writing b" the interested part"% who
personall" appears before the proper local civil registrar% or in the form of
an affidavit made in the presence of two witnesses and attested before
an" official authori$ed b" law to administer oaths. The personal
manifestation shall be recorded in both applications for marriage license%
and the affidavit% if one is e-ecuted instead% shall be attached to said
applications.
Art. 15. An" contracting part" between the age of twent"/one and
twent"/five shall be obliged to ask their parents or guardian for advice
upon the intended marriage. ,f the" do not obtain such advice% or if it be
unfavorable% the marriage license shall not be issued till after three
months following the completion of the publication of the application
therefor. A sworn statement b" the contracting parties to the effect that
such advice as been sought% together with the written advice given% if
an"% shall be attached to the application for marriage license. @hould the
parents or guardian refuse to give an" advice% this fact shall be stated in
the sworn statement.
Art. 16. ,n the cases where parental consent or parental advice is
needed% the part" or parties concerned shall% in addition to the
re.uirements of the preceding articles% attach a certificate issued b" a
priest% imam or minister authori$ed to solemni$e marriage under Article C
of this Code or a marriage counsellor dul" accredited b" the proper
government agenc" to the effect that the contracting parties have
undergone marriage counselling. Aailure to attach said certificates of
marriage counselling shall suspend the issuance of the marriage license
for a period of three months from the completion of the publication of the
application. ,ssuance of the marriage license within the prohibited
period shall subject the issuing officer to administrative sanctions but
shall not affect the validit" of the marriage.
@hould onl" one of the contracting parties need parental consent or
parental advice% the other part" must be present at the counselling
referred to in the preceding paragraph.
Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a marriage
license and other data given in the applications. The notice shall be
posted for ten consecutive da"s on a bulletin board outside the office of
the local civil registrar located in a conspicuous place within the building
and accessible to the general public. This notice shall re.uest all persons
having knowledge of an" impediment to the marriage to advise the local
civil registrar thereof. The marriage license shall be issued after the
completion of the period of publication.
Art. 18. ,n case of an" impediment known to the local civil
registrar or brought to his attention% he shall note down the particulars
thereof and his findings thereon in the application for marriage license%
but shall nonetheless issue said license after the completion of the period
of publication% unless ordered otherwise b" a competent court at his own
instance or that of an" interest part". 2o filing fee shall be charged for
the petition nor a corresponding bond re.uired for the issuances of the
order.
Art. 19. The local civil registrar shall re.uire the pa"ment of the
fees prescribed b" law or regulations before the issuance of the marriage
license. 2o other sum shall be collected in the nature of a fee or ta- of
an" kind for the issuance of said license. ,t shall% however% be issued free
of charge to indigent parties% that is those who have no visible means of
income or whose income is insufficient for their subsistence a fact
established b" their affidavit% or b" their oath before the local civil
registrar.
Art. 20. The license shall be valid in an" part of the Philippines for
a period of one hundred twent" da"s from the date of issue% and shall be
deemed automaticall" cancelled at the e-piration of the said period if the
contracting parties have not made use of it. The e-pir" date shall be
stamped in bold characters on the face of ever" license issued.
Art. 21. 0hen either or both of the contracting parties are citi$ens
of a foreign countr"% it shall be necessar" for them before a marriage
license can be obtained% to submit a certificate of legal capacit" to
contract marriage% issued b" their respective diplomatic or consular
officials.
Professor Ruben F. Balane Pa)e 0* of +,-
@tateless persons or refugees from other countries shall% in lieu of
the certificate of legal capacit" herein re.uired% submit an affidavit
stating the circumstances showing such capacit" to contract marriage.
General *ule+ ' marriage license is re.uired.
Exceptions:
1. 0arria/es in articulo mortis ='rticles 5, !1, !>
Art. 27. ,n case either or both of the contracting parties are
at the point of death% the marriage ma" be solemni$ed without
necessit" of a marriage license and shall remain valid even if the
ailing part" subse.uentl" survives.
Art. 31. A marriage in articulo mortis between passengers or
crew members ma" also be solemni$ed b" a ship captain or b" an
airplane pilot not onl" while the ship is at sea or the plane is in
flight% but also during stopovers at ports of call.
Art. 32. A militar" commander of a unit% who is a
commissioned officer% shall likewise have authorit" to solemni$e
marriages in articulo mortis between persons within the $one of
militar" operation% whether members of the armed forces or
civilians.
'rticles !1 and ! are not distinct e(ceptional marriages but marriages
in articulo mortis.
. *esidence is located such that either part" has no means of
transportation to enable such part" to appear before the Civil
*egistrar ='rticle 8>
Art. 28. ,f the residence of either part" is so located that
there is no means of transportation to enable such part" to appear
personall" before the local civil registrar% the marriage ma" be
solemni$ed without necessit" of a marriage license.
!. <arriages among <uslims or among members of ethnic cultural
communities as long as the" are solemni$ed in accordance with
their customs ='rticle !!>
Art. 33. <arriages among <uslims or among members of the
ethnic cultural communities ma" be performed validl" without the
necessit" of marriage license% provided the" are solemni$ed in
accordance with their customs% rites or practices.
,.7E: The Euslim Code governs i$ the contracting parties are both
Euslims or i$ the male is Euslim. 9$ only the $emale is Euslim, then the
Family Code governs.
Professor Ruben F. Balane Pa)e 0. of +,-
%. Couples living together as husband and wife for at least ) "ears
and the" must not have an" legal impediment to marr" each other
='rticle !%>
Art. 34. 2o license shall be necessar" for the marriage of a
man and a woman who have lived together as husband and wife for
at least five "ears and without an" legal impediment to marr" each
other. The contracting parties shall state the foregoing facts in an
affidavit before an" person authori$ed b" law to administer oaths.
The solemni$ing officer shall also state under oath that he
ascertained the .ualifications of the contracting parties are found
no legal impediment to the marriage.
Art. 29. ,n the cases provided for in the two preceding
articles% the solemni$ing officer shall state in an affidavit e-ecuted
before the local civil registrar or an" other person legall"
authori$ed to administer oaths that the marriage was performed in
articulo ortis or that the residence of either part"% specif"ing the
barrio or baranga"% is so located that there is no means of
transportation to enable such part" to appear personall" before the
local civil registrar and that the officer took the necessar" steps to
ascertain the ages and relationship of the contracting parties and
the absence of legal impediment to the marriage.
II. Effect of #efective $arria)es on t7e Status of
C7il&ren
A. ,f the marriage is voidable ='rticle 0%>
Art. 54. Children conceived or born before the judgment of
annulment or absolute nullit" of the marriage under Article 8B has
become final and e-ecutor" shall be considered legitimate. Children
conceived or born of the subse.uent marriage under Article )8 shall
likewise be legitimate.
0 ;egitimate ? i$ conceived be$ore $inal *udgment
1 9llegitimate 4 i$ conceived a$ter $inal *udgment
G. ,f the marriage is void
0 General *ule+ Children are illegitimate ='rticle 130>
Art. 165. Children conceived and born outside a valid marriage
are illegitimate% unless otherwise provided in this Code.
1 Exceptions: ;egitimate i$ the marriage $alls under<
0 Article 8B ? Dsychological incapacity
Art. 36. A marriage contracted b" an" part" who% at the
time of the celebration% was ps"chologicall" incapacitated to
compl" with the essential marital obligations of marriage% shall
Professor Ruben F. Balane Pa)e 0+ of +,-
likewise be void even if such incapacit" becomes manifest onl"
after its solemni$ation.
1 Article )8 ? Children conceived or born o$ the subse.uent marriage
under 'rticle 0! even though such marriage is void $or $ailure to comply
with the re.uirements o$ 'rticle 0.
Art. 53. :ither of the former spouses ma" marr" again
after compliance with the re.uirements of the immediatel"
preceding Article3 otherwise% the subse.uent marriage shall be null
and void.
III. $arria)e Certificate ='rticles and !>
Art. 22. The marriage certificate% in which the parties shall declare that
the" take each other as husband and wife% shall also state+
5'7 The full name% se- and age of each contracting part"3
567 Their citi$enship% religion and habitual residence3
587 The date and precise time of the celebration of the marriage3
5=7 That the proper marriage license has been issued according to law%
e-cept in marriage provided for in Chapter 6 of this Title3
5)7 That either or both of the contracting parties have secured the parental
consent in appropriate cases3
5B7 That either or both of the contracting parties have complied with the
legal re.uirement regarding parental advice in appropriate cases3 and
5C7 That the parties have entered into marriage settlement% if an"%
attaching a cop" thereof.
Art. 23. ,t shall be the dut" of the person solemni$ing the marriage to
furnish either of the contracting parties the original of the marriage certificate
referred to in Article B and to send the duplicate and triplicate copies of the
certificate not later than fifteen da"s after the marriage% to the local civil
registrar of the place where the marriage was solemni$ed. Proper receipts shall
be issued b" the local civil registrar to the solemni$ing officer transmitting
copies of the marriage certificate. The solemni$ing officer shall retain in his file
the .uadruplicate cop" of the marriage certificate% the cop" of the marriage
certificate% the original of the marriage license and% in proper cases% the
affidavit of the contracting part" regarding the solemni$ation of the marriage in
place other than those mentioned in Article D.
' marriage certi$icate is proo$ o$ marriage. 9t is however not the only proo$ =i.e.,
witnesses>
I!. A&&itional Re<uire2ents for Annul2ent or
#eclaration of Nullit9
Art. 48. ,n all cases of annulment or declaration of absolute nullit" of
marriage% the Court shall order the prosecuting attorne" or fiscal assigned to it
Professor Ruben F. Balane Pa)e 0/ of +,-
to appear on behalf of the @tate to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or suppressed.
,n the cases referred to in the preceding paragraph% no judgment shall be
based upon a stipulation of facts or confession of judgment.
! Drosecuting attorney or $iscal should<
0 Ta,e steps to prevent collusion between the parties
1 Ta,e care that evidence is not $abricated or suppressed
,.7E: No *udgment shall be based upon a stipulation o$ $acts or con$ession o$ *udgment.
Art. 52. The judgment of annulment or of absolute nullit" of the
marriage% the partition and distribution of the properties of the spouses and the
deliver" of the children;s presumptive legitimes shall be recorded in the
appropriate civil registr" and registries of propert"3 otherwise% the same shall
not affect third persons.
1 The $ollowing must be accomplished<
0 Dartition and distribution o$ the properties o$ the spouses
1 +elivery o$ the childrens presumptive legitimes
-ecording o$ the *udgment o$ annulment or o$ absolute nullity. The
partition and distribution and the delivery o$ the childrens presumptive legitimes
in the appropriate civil registry and registries o$ property. =2therwise, the same
shall not a$$ect !
rd
persons>
0 Failure to comply with 'rticle 0 shall render the subse.uent marriage null and
void.
!. Forei)n $arria)es an& Forei)n #ivorces
Art. 26$ %1. All marriages solemni$ed outside the Philippines% in
accordance with the laws in force in the countr" where the" were solemni$ed%
and valid there as such% shall also be valid in this countr"% e-cept those
prohibited under Articles 8) 5'7% 5=7% 5)7 and 5B7% 8B8C and 8D.
1 General *ule+ Foreign marriages which are in accordance with the law in $orce
in the country where they were solemni7ed and valid there are valid in the Dhilippines.
Exception: Void marriages under Dhilippine ;aw
3 Exception to t"e exception:
4 Article 8)% J6
perform marriages unless such marriages were contracted with
either or both parties believing in good faith that the solemni$ing
officer had the legal authorit" to do so3
' Article 8)% J8
preceding Chapter3
Art. 26$ %2. 0here a marriage between a Ailipino citi$en and a foreigner
is validl" celebrated and a divorce is thereafter validl" obtained abroad b" the
alien spouse capacitating him or her to remarr"% the Ailipino spouse shall have
capacit" to remarr" under Philippine law.
0 General *ule+ Foreign divorces obtained by Filipino citi7ens will be considered
void and are not recogni7ed.
1 Exception: 9n case the parties to the marriage are a Filipino citi7en and a
$oreigner. 9$ the $oreigner obtains a valid $oreign divorce, the Filipino spouse shall have
capacity to re4marry under Dhilippine law.
Aowever, i$ it is the Filipino citi7en who secures the divorce, the divorce
will not be recogni7ed in the Dhilippines.
! -e.uisites o$ 'rticle 3, B
0 The marriage must be one between a Filipino and a $oreigner
1 +ivorce is granted abroad
+ivorce must have been obtained by the alien spouse.
! +ivorce must capacitate the alien spouse to remarry.
0 'rticle 3, B has a retroactive e$$ect i$ no vested rights are a$$ected.
1 &ro'le: /uppose at the time o$ the marriage, both are Filipinos. ;ater on, one
spouse is naturali7ed. This spouse obtains a $oreign divorce. #ill 'rticle 3, B apply)
6 views+
1. <ustice Puno
0 9t wont. 'rticle 3, B re.uires that at the time the marriage is
celebrated, there must be 1 $oreigner.
. D.< .pinion
1 9t applies, 'rticle 3, B is not speci$ic.
!I. Effects of a #efective $arria)e
4 *e/appearance of absent spouse
The marriage is not really de$ective. Thus, the term OterminatedP is used.
marriage% the partition and distribution of the properties of the
spouses and the deliver" of the children;s presumptive legitimes shall
be recorded in the appropriate civil registr" and registries of propert"3
otherwise% the same shall not affect third persons.
! There must be partition and distribution o$ the properties o$ the spouses
and the delivery o$ the childrens presumptive legitimes. This shall be
recorded in the appropriate registries o$ property.
' Annulment
marriage% the partition and distribution of the properties of the spouses
and the deliver" of the children;s presumptive legitimes shall be recorded
in the appropriate civil registr" and registries of propert"3 otherwise% the
same shall not affect third persons.
0 There must be a partition and distribution o$ the properties o$ the spouses
and the delivery o$ the childrens presumptive legitime, and the recording o$
such and the *udgment o$ nullity with the appropriate civil registry and
registries o$ property.
Art. 53. :ither of the former spouses ma" marr" again after
compliance with the re.uirements of the immediatel" preceding Article3
otherwise% the subse.uent marriage shall be null and void.
1 1ither o$ the $ormer spouses may marry again provided 'rticle 0 is
complied with.
6 Declaration of 2ullit"
This is not a de$ective marriage since there was no marriage in the $irst
place.
! 'rticle 00 applies.
Art. 50. The effects provided for b" paragraphs 567% 587% 5=7 and
5)7 of Article =8 and b" Article == shall also appl" in the proper cases
to marriages which are declared a' initio or annulled b" final
judgment under Articles =4 and =).
The final judgment in such cases shall provide for the
li.uidation% partition and distribution of the properties of the spouses%
the custod" and support of the common children% and the deliver" of
third presumptive legitimes% unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
communit" or the conjugal partnership shall be notified of the
proceedings for li.uidation.
,n the partition% the conjugal dwelling and the lot on which it is
situated% shall be adjudicated in accordance with the provisions of
Articles '46 and '6E.
8 !egal @eparation
0 /ee 'rticles 3! and 3% $or the e$$ects.
Art. 63. The decree of legal separation shall have the following
effects+
5'7 The spouses shall be entitled to live separatel" from each
other% but the marriage bonds shall not be severed3
Professor Ruben F. Balane Pa)e 0, of +,-
567 The absolute communit" or the conjugal partnership shall be
dissolved and li.uidated but the offending spouse shall have
no right to an" share of the net profits earned b" the absolute
communit" or the conjugal partnership% which shall be
forfeited in accordance with the provisions of Article =85673
587 The custod" of the minor children shall be awarded to the
innocent spouse% subject to the provisions of Article 6'8 of
this Code3 and
5=7 The offending spouse shall be dis.ualified from inheriting from
the innocent spouse b" intestate succession. <oreover%
provisions in favor of the offending spouse made in the will of
the innocent spouse shall be revoked b" operation of law.
Art. 64. After the finalit" of the decree of legal separation% the
innocent spouse ma" revoke the donations made b" him or b" her in
favor of the offending spouse% as well as the designation of the latter
as beneficiar" in an" insurance polic"% even if such designation be
stipulated as irrevocable. The revocation of the donations shall be
recorded in the registries of propert" in the places where the
properties are located. Alienations% liens and encumbrances registered
in good faith before the recording of the complaint for revocation in
the registries of propert" shall be respected. The revocation of or
change in the designation of the insurance beneficiar" shall take effect
upon written notification thereof to the insured.
The action to revoke the donation under this Article must be
brought within five "ears from the time the decree of legal separation
become final.
!II.Rules on t7e Forfeiture of t7e S7are of t7e Guilt9
S'ouse
1. *e/appearance of spouse ='rticle %!=>>
Art. 43. The termination of the subse.uent marriage referred to in
the preceding Article shall produce the following effects+
567 The absolute communit" of propert" or the conjugal partnership%
as the case ma" be% shall be dissolved and li.uidated% but if either
spouse contracted said marriage in bad faith% his or her share of
the net profits of the communit" propert" or conjugal partnership
propert" shall be forfeited in favor of the common children or% if
there are none% the children of the guilt" spouse b" a previous
marriage or in default of children% the innocent spouse3
1 The present spouse cannot be the one in bad $aith because in order to
contract a subse.uent marriage, the present spouse must believe in good $aith
that the absent spouse is dead.
. Annulment ='rticle 00=1>>
Professor Ruben F. Balane Pa)e 0- of +,-
Art. 50. The effects provided for b" paragraphs 567% 587% 5=7 and
5)7 of Article =8 and b" Article == shall also appl" in the proper cases to
marriages which are declared a' initio or annulled b" final judgment
under Articles =4 and =).
8. !egal @eparation 5Article B85677
effects+
dissolved and li.uidated but the offending spouse shall have no
right to an" share of the net profits earned b" the absolute
communit" or the conjugal partnership% which shall be forfeited
in accordance with the provisions of Article =85673
!III. Instances w7en t7ere is #eliver9 of Presu2'tive
Le)iti2es
0 *e/appearance of former spouse ='rticles 10 =0>, %!=>>
Art. 102. ?pon dissolution of the absolute communit" regime% the
following procedure shall appl"+
5)7 The presumptive legitimes of the common children shall be
delivered upon partition% in accordance with Article )'.
Art. 43. The termination of the subse.uent marriage referred to in
the preceding Article shall produce the following effects+
567 The absolute communit" of propert" or the conjugal partnership%
as the case ma" be% shall be dissolved and li.uidated% but if either
spouse contracted said marriage in bad faith% his or her share of
the net profits of the communit" propert" or conjugal partnership
propert" shall be forfeited in favor of the common children or% if
there are none% the children of the guilt" spouse b" a previous
marriage or in default of children% the innocent spouse3
1 Annulment ='rticles 00 B, 01>
Art. 50$ %2. The final judgment in such cases shall provide for the
li.uidation% partition and distribution of the properties of the spouses%
the custod" and support of the common children% and the deliver" of their
presumptive legitimes% unless such matters had been adjudicated in
previous judicial proceedings.
Art. 51. ,n said partition% the value of the presumptive legitimes of
all common children% computed as of the date of the final judgment of the
trial court% shall be delivered in cash% propert" or sound securities% unless
the parties% b" mutual agreement judiciall" approved% had alread"
provided for such matters.
The children or their guardian or the trustee of their propert" ma"
ask for the enforcement of the judgment.
The deliver" of the presumptive legitimes herein prescribed shall in
no wa" prejudice the ultimate successional rights of the children accruing
upon the death of either of both of the parents3 but the value of the
properties alread" received under the decree of annulment or absolute
nullit" shall be considered as advances on their legitime.
!egal @eparation ='rticles 10 =0>, 3!=>>
effects+
! #ther causes for the dissolution of conjugal propert" ='rticles 10,
1:, 1!0>
5'7 An inventor" shall be prepared% listing separatel" all the
properties of the absolute communit" and the e-clusive
properties of each spouse.
567 The debts and obligations of the absolute communit" shall be
paid out of its assets. ,n case of insufficienc" of said assets% the
spouses shall be solidaril" liable for the unpaid balance with their
separate properties in accordance with the provisions of the
second paragraph of Article E=.
587 0hatever remains of the e-clusive properties of the spouses shall
thereafter be delivered to each of them.
5=7 The net remainder of the properties of the absolute communit"
shall constitute its net assets% which shall be divided e.uall"
between husband and wife% unless a different proportion or
division was agreed upon in the marriage settlements% or unless
there has been a voluntar" waiver of such share provided in this
Code. Aor purpose of computing the net profits subject to
forfeiture in accordance with Articles =8% 2o. 567 and B8% 2o. 567%
the said profits shall be the increase in value between the market
value of the communit" propert" at the time of the celebration of
the marriage and the market value at the time of its dissolution.
5B7 ?nless otherwise agreed upon b" the parties% in the partition of
the properties% the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the
majorit" of the common children choose to remain. Children
below the age of seven "ears are deemed to have chosen the
mother% unless the court has decided otherwise. ,n case there in
no such majorit"% the court shall decide% taking into consideration
the best interests of said children.
Art. 129. ?pon the dissolution of the conjugal partnership
regime% the following procedure shall appl"+
properties of the conjugal partnership and the e-clusive
567 Amounts advanced b" the conjugal partnership in pa"ment of
personal debts and obligations of either spouse shall be credited
to the conjugal partnership as an asset thereof.
587 :ach spouse shall be reimbursed for the use of his or her
e-clusive funds in the ac.uisition of propert" or for the value of
his or her e-clusive propert"% the ownership of which has been
vested b" law in the conjugal partnership.
5=7 The debts and obligations of the conjugal partnership shall be
paid out of the conjugal assets. ,n case of insufficienc" of said
assets% the spouses shall be solidaril" liable for the unpaid
balance with their separate properties% in accordance with the
provisions of paragraph 567 of Article '6'.
5)7 0hatever remains of the e-clusive properties of the spouses shall
thereafter be delivered to each of them.
5B7 ?nless the owner had been indemnified from whatever source%
the loss or deterioration of movables used for the benefit of the
famil"% belonging to either spouse% even due to fortuitous event%
shall be paid to said spouse from the conjugal funds% if an".
5C7 The net remainder of the conjugal partnership properties shall
constitute the profits% which shall be divided e.uall" between
husband and wife% unless a different proportion or division was
agreed upon in the marriage settlements or unless there has
been a voluntar" waiver or forfeiture of such share as provided in
this Code.
5D7 The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article )'.
5E7 ,n the partition of the properties% the conjugal dwelling and the
lot on which it is situated shall% unless otherwise agreed upon b"
the parties% be adjudicated to the spouse with whom the majorit"
of the common children choose to remain. Children below the age
of seven "ears are deemed to have chosen the mother% unless the
court has decided otherwise. ,n case there is no such majorit"%
the court shall decide% taking into consideration the best interests
of said children.
Art. 135. An" of the following shall be considered sufficient cause
for judicial separation of propert"+
5'7 That the spouse of the petitioner has been sentenced to a penalt"
which carries with it civil interdiction3
567 That the spouse of the petitioner has been judiciall" declared an
absentee3
587 That loss of parental authorit" of the spouse of petitioner has
been decreed b" the court3
5=7 That the spouse of the petitioner has abandoned the latter or
failed to compl" with his or her obligations to the famil" as
provided for in Article '4'3
5)7 That the spouse granted the power of administration in the
marriage settlements has abused that power3 and
5B7 That at the time of the petition% the spouses have been separated
in fact for at least one "ear and reconciliation is highl"
improbable.
,n the cases provided for in 2umbers 5'7% 567 and 587% the
presentation of the final judgment against the guilt" or absent spouse
shall be enough basis for the grant of the decree of judicial separation of
propert".
% Decree of 2ullit" ='rticle 00B>
Art. 50. The final judgment in such cases shall provide for the
li.uidation% partition and distribution of the properties of the spouses% the
custod" and support of the common children% and the deliver" of third
presumptive legitimes% unless such matters had been adjudicated in
previous judicial proceedings.
Dro$essor @alane is not in $avor o$ the delivery o$ presumptive legitimes.
Dresumptive legitimes are tentative. Furthermore, the properties o$ the
spouses are $ro7en, yet the children do not have vested rights.
I=. Le)al Se'aration (Bed and Board Separation)
Art. 55. A petition for legal separation ma" be filed on an" of the
following grounds+
5'7 *epeated ph"sical violence or grossl" abusive conduct directed against
the petitioner% a common child% or a child of the petitioner3
! The ,ey words are OrepeatedP and OgrosslyP.
567 Ph"sical violence or moral pressure to compel the petitioner to change
religious or political affiliation3
% There must be undue pressure since some pressure is e(pected in every
marriage. 9t must go beyond what is permissible =case to case basis>.
587 Attempt of respondent to corrupt or induce the petitioner% a common
child% or a child of the petitioner% to engage in prostitution% or
connivance in such corruption or inducement3
5=7 Ainal judgment sentencing the respondent to imprisonment of more
than si- "ears% even if pardoned3
5)7 Drug addiction or habitual alcoholism of the respondent3
5 The drug addiction can occur a$ter the marriage. 'rticle 00 =0> does not tal, o$
concealment o$ drug addiction unli,e 'rticle %3=%>
.
5B7 !esbianism or homose-ualit" of the respondent3
3 9s this tal,ing about homose(uality in terms o$ practice or is such se(ual
orientation enough) 'gain, there are no cases.
5C7 Contracting b" the respondent of a subse.uent bigamous marriage%
whether in the Philippines or abroad3
5D7 @e-ual infidelit" or perversion3
5 "nder the Family Code, both men and women need only commit one act o$ se(ual
in$idelity to $all under 'rticle 00 =8>.
8 9n :andionco vs. PeDaranda, the /upreme Court said that a criminal conviction o$
concubinage is not necessary, only preponderance o$ evidence. 9n $act, a civil action
$or legal separation based on concubinage may proceed ahead o$ or simultaneously
with a criminal action.
: /e(ual perversion is a relative term.
5E7 Attempt b" the respondent against the life of the petitioner3 or
0 'rticle 00 =:> ? under this ground, there is no need $or conviction.
5'47 Abandonment of petitioner b" respondent without justifiable cause for
more than one "ear.
Aor purposes of this Article% the term IchildI shall include a child b"
nature or b" adoption.
Art. 56. The petition for legal separation shall be denied on an" of the
following grounds+
5'7 0here the aggrieved part" has condoned the offense or act complained
of3
567 0here the aggrieved part" has consented to the commission of the
offense or act complained of3
587 0here there is connivance between the parties in the commission of the
offense or act constituting the ground for legal separation3
_
Art. *&. 'ny o$ the $ollowing circumstances shall constitute $raud re$erred to in Number ! o$ the
preceding 'rticle<
=%> Concealment o$ drug addiction, habitual alcoholism or homose(uality or lesbianism e(isting
at the time o$ the marriage.
5=7 0here both parties have given ground for legal separation3
5)7 0here there is collusion between the parties to obtain decree of legal
separation3 or
5B7 0here the action is barred b" prescription.
1 There are more grounds not $ound in 'rticle 03<
0 +eath o$ either party during the pendency o$ the case =LapuzB+8 vs.
Eu!emio>
1 -econciliation o$ the spouses during the pendency o$ the case ='rticle 33
=1>
>
9n LapuzB+8 vs. Eu!emio, the lawyer wanted to proceed with legal separation
despite o$ the death o$ one o$ the parties. The /upreme Court denied it since the
primary purpose o$ legal separation is bed and board separation while the e$$ect on their
property relations is merely incidental.
Art. 58. An action for legal separation shall in no case be tried before si-
months shall have elapsed since the filing of the petition.
! This is the cooling4o$$ period ? can only try the petition $or legal separation a$ter 3
months $rom $iling. The /upreme Court has interpreted 'rticle 08 to mean that there
shall be no hearing on the main issue but the court may hear incidental issues.
% 9n the case o$ Araneta vs. ;oncepcion, the /upreme Court allowed the court to
hear the issue regarding the custody o$ the children even i$ the 34month period had not
yet elapsed. Dro$essor @alane didnt li,e the ruling in this case. 'ccording to him, what
are you going to tal, about i$ you dont go to the main case)
Art. 59. 2o legal separation ma" be decreed unless the Court has taken
steps toward the reconciliation of the spouses and is full" satisfied% despite
such efforts% that reconciliation is highl" improbable.
For legal separation to be declared, reconciliation must be highly unli,ely.
Art. 60. 2o decree of legal separation shall be based upon a stipulation of
facts or a confession of judgment.
,n an" case% the Court shall order the prosecuting attorne" or fiscal
assigned to it to take steps to prevent collusion between the parties and to take
care that the evidence is not fabricated or suppressed.
No decree o$ legal separation shall be based upon a stipulation o$ $acts or a
con$ession *udgment. 9n .campo vs. ?lorenciano, the /upreme Court said that legal
separation cannot be granted on the basis o$ the wi$es admission alone. There must
be other proo$.
Art. &&. The reconciliation re$erred to in the preceding 'rticles shall have the $ollowing
conse.uences<
=1> The legal separation proceedings, i$ still pending, shall thereby be terminated at whatever
stage
'. :ffects of Ailing A Petition for !egal @eparation
0 /pouses can live separately $rom each other.
1 The administration o$ the common properties ='CD, CD6, etc> shall be
given by the court to either o$ the spouses or to a !
rd
person as is best $or the
interests o$ the community.
9n the absence o$ a written agreement o$ the spouses, the court shall
provide $or the support between the spouses and the custody and support o$
the common children, ta,ing into account the wel$are o$ the children and their
choice o$ the parent with whom they wish to remain.
! #hen the consent o$ 1 spouse to any transaction o$ the other is re.uired
by law, *udicial authori7ation shall be necessary, unless such spouse
voluntarily gives such consent.
6. :ffects of the Decree of !egal @eparation =Nos. 1 ? %, 'rticle 3!>
effects+
5'7 The spouses shall be entitled to live separatel" from each other%
but the marriage bonds shall not be severed3
587 The custod" of the minor children shall be awarded to the
innocent spouse% subject to the provisions of Article 6'8 of this
Code3 and
5=7 The offending spouse shall be dis.ualified from inheriting from
the innocent spouse b" intestate succession. <oreover%
provisions in favor of the offending spouse made in the will of the
innocent spouse shall be revoked b" operation of law.
0 /pouses shall be entitled to live separately $rom each other, but the
marriage bonds shall not be severed.
1 The 'CD or the CD6 shall be dissolved and li.uidated. The o$$ending
spouse shall have no right to any share o$ the net pro$its earned by the 'CD or
CD6 $ollowing the rules o$ $or$eiture in 'rticle %! =>
.
`
Art. *(. The termination o$ the subse.uent marriage re$erred to in the preceding 'rticle shall
produce the $ollowing e$$ects<
=> The absolute community o$ property or the con*ugal partnership, as the case may be, shall
be dissolved and li.uidated, but i$ either spouse contracted said marriage in bad $aith, his
or her share o$ the net pro$its o$ the community property or con*ugal partnership property
shall be $or$eited in $avor o$ the common children or, i$ there are none, the children o$ the
guilty spouse by a previous marriage or in de$ault o$ children, the innocent spouse&
2 The custody o$ the minor children shall be awarded to the innocent spouse
sub*ect to 'rticle 1!
.
! The o$$ending spouse shall be dis.uali$ied $rom inheriting $rom the innocent
spouse by intestate succession. Testamentary dispositions in $avor o$ the
o$$ending spouse shall be revo,ed by operation o$ law.
4 +onation propter nuptias made by the innocent spouse to the o$$ending
spouse may be revo,ed at the option o$ the $ormer. ='rticle 3%
>
5 The designation by the innocent spouse o$ the o$$ending spouse as a
bene$iciary in any insurance policy =even irrevocable ones> may be revo,ed by
the innocent spouse. ='rticle 3%
>
6 Cessation o$ the obligation o$ mutual support. ='rticle 1:8
>
5 The wi$e shall continue using her name and surname employed be$ore
legal separation.
8. :ffects of *econciliation
0 Moint custody o$ the children is restored.
1 The right to succeed by the guilty spouse $rom the o$$ended spouse is
restored ? compulsory only.
#ith regard testamentary spouse in the will o$ the innocent spouse.
! 9$ the donation propter nuptias succession, reconciliation will not
automatically revive the institution o$ the guilty were revo,ed, the same is not
automatically restored.
'rticles 30 and 33 always allow reconciliation even a$ter the decree.
Art. 65. ,f the spouses should reconcile% a corresponding joint
manifestation under oath dul" signed b" them shall be filed with the
court in the same proceeding for legal separation.
`
Art. %)(. 9n case o$ separation o$ the parents, parental authority shall be e(ercised by the
parent designated by the Court. The Court shall ta,e into account all relevant considerations,
especially the choice o$ the child over seven years o$ age, unless the parent chosen is un$it.
Art. &*. '$ter the $inality o$ the decree o$ legal separation, the innocent spouse may revo,e the
donations made by him or by her in $avor o$ the o$$ending spouse, as well as the designation o$ the
latter as bene$iciary in any insurance policy, even i$ such designation be stipulated as irrevocable.
The revocation o$ the donations shall be recorded in the registries o$ property in the places where
the properties are located. 'lienations, liens and encumbrances registered in good $aith be$ore the
recording o$ the complaint $or revocation in the registries o$ property shall be respected. The
revocation o$ or change in the designation o$ the insurance bene$iciary shall ta,e e$$ect upon
written noti$ication thereo$ to the insured.
The action to revo,e the donation under this 'rticle must be brought within $ive years $rom
the time the decree o$ legal separation become $inal.
Art. )2/. +uring the proceedings $or legal separation or $or annulment o$ marriage, and $or
declaration o$ nullity o$ marriage, the spouses and their children shall be supported $rom the
properties o$ the absolute community or the con*ugal partnership. '$ter the $inal *udgment granting
the petition, the obligation o$ mutual support between the spouses ceases. Aowever, in case o$
legal separation, the court may order that the guilty spouse shall give support to the innocent one,
speci$ying the terms o$ such order.
Art. 66. The reconciliation referred to in the preceding Articles
shall have the following conse.uences+
5'7 The legal separation proceedings% if still pending% shall thereb"
be terminated at whatever stage3 and
567 The final decree of legal separation shall be set aside% but the
separation of propert" and an" forfeiture of the share of the
guilt" spouse alread" effected shall subsist% unless the
spouses agree to revive their former propert" regime.
The court;s order containing the foregoing shall be recorded in
the proper civil registries.
'ccording to Dro$essor @alane, it is not the reconciliation which produces the
e$$ects in 'rticle 33. -ather, it is the $iling o$ the *oint mani$estation o$
reconciliation.
=. Ri)7ts an& "bli)ations between Husban& an& ife
Art. 68. The husband and wife are obliged to live together% observe
mutual love% respect and fidelit"% and render mutual help and support.
This is really a declaration o$ policy
The ! duties o$ the spouses to each other are<
0 ;ive together
1 2bserve mutual love, respect, and $idelity
-ender mutual help and support
0 'rticle 38 is 'rticle !3s re$erence when it re$ers to the spouses inability to
comply with the essential marital obligations.
1 'lthough the courts cannot compel the spouses to comply with their marital
obligations, under 'rticles 100 and 15, the spouse who leaves the con*ugal home or
re$uses to live there without *us t cause shall not have the right to be supported.
Art. 69. The husband and wife shall fi- the famil" domicile. ,n case of
disagreement% the court shall decide.
The court ma" e-empt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for the
e-emption. 9owever% such e-emption shall not appl" if the same is not
compatible with the solidarit" of the famil".
0 The power to $i( the domicile is *oint.
1 General *ule+ /eparation is incompatible with $amily solidarity.
2 Exception: 'rticle 3:, B
C
0 2ne spouse should live abroad
1 2ther valid and compelling reasons
*
Art. &2 '%. The court may e(empt one spouse $rom living with the other i$ the latter should live
abroad or there are other valid and compelling reasons $or the e(emption. Aowever, such
e(emption shall not apply i$ the same is not compatible with the solidarity o$ the $amily.
Art. 70. The spouses are jointl" responsible for the support of the famil".
The e-penses for such support and other conjugal obligations shall be paid from
the communit" propert" and% in the absence thereof% from the income or fruits
of their separate properties. ,n case of insufficienc" or absence of said income
or fruits% such obligations shall be satisfied from the separate properties.
0 /upport is a *oint responsibility. @oth spouses are responsible $or the support o$
the $amily.
1 /upport comprises everything indispensable $or sustenance, dwelling, clothing,
medical attendance, education and transportation, in ,eeping with the $inancial capacity
o$ the $amily ='rticle 1:%>
2 "nder 'rticles :% =last B>
, 11 =last B>
and 1%3 =B>
, i$ the community property

is insu$$icient to cover debts o$ the community property, then the spouses are solidarily
liable with their separate property. 9$ the spouses have a regime o$ separation o$
property, the spouses are solidarily liable to creditors $or $amily e(penses.
Art. 73. :ither spouse ma" e-ercise an" legitimate profession%
occupation% business or activit" without the consent of the other. The latter ma"
object onl" on valid% serious% and moral grounds.
,n case of disagreement% the court shall decide whether or not+
5'7 The objection is proper% and
567 Genefit has occurred to the famil" prior to the objection or thereafter. ,f
the benefit accrued prior to the objection% the resulting obligation shall
be enforced against the separate propert" of the spouse who has not
obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who
acted in good faith.
0 There is an error here. This is N2T the $ull te(t. The te(t should read<
E)%#e( "0-1"e /, e;e(c)"e *, $e.)%)/%e 0(-'e"")-*4 -cc10%)-*4 21")*e"" -(
c%)5)%, !)%#-1% %#e c-*"e*% -' %#e -%#e(. T#e $%%e( /, -2Bec% -*$, -* 5$)+4 "e()-1"
*+ /-($ .(-1*+".
I* c"e -' +)".(ee/e*%4 %#e c-1(% "#$$ +ec)+e !#e%#e( -( *-%@
1. T#e -2Bec%)-* )" 0(-0e(4 *+
2. Be*e')% #" cc(1e+ %- %#e '/)$, 0()-( %- %#e -2Bec%)-* -( %#e(e'%e(. I' %#e
2e*e')% cc(1e+ 0()-( %- %#e -2Bec%)-*4 %#e (e"1$%)*. -2$).%)-* "#$$ 2e e*'-(ce+
.)*"% %#e c-//1*)%, 0(-0e(%,. I' %#e 2e*e')% cc(1e+ %#e(e'%e(4 "1c#
-2$).%)-* "#$$ 2e e*'-(ce+ .)*"% %#e "e0(%e 0(-0e(%, -' %#e "0-1"e !#-
#" *-% -2%)*e+ c-*"e*%.
_
Art. 2* last '. 9$ the community property is insu$$icient to cover the $oregoing liabilities, e(cept
those $alling under paragraph =:>, the spouses shall be solidarily liable $or the unpaid balance with
their separate properties.
_
Art. )%) last '. 9$ the con*ugal partnership is insu$$icient to cover the $oregoing liabilities, the
spouses shall be solidarily liable $or the unpaid balance with their separate properties.
_
Art. )*& '%. The liabilities o$ the spouses to creditors $or $amily e(penses shall, however, be
solidary.
=I. Pro'ert9 Relations
1 Droperty relations are very important to creditors.
Art. 74. The propert" relationship between husband and wife shall be
governed in the following order+
5'7 G" marriage settlements e-ecuted before the marriage3
567 G" the provisions of this Code3 and
587 G" the local custom.
Droperty relations is the only instance when the husband and wi$e can stipulate as
to the terms an conditions.
! The marriage settlement governs the property relations o$ spouses provided such
is not contrary to law.
% 9n the absence o$ a marriage settlement, the Family Code comes in. 9$ the Family
Code in a rare instance is not applicable, then custom comes in.
0 There$ore, in the absence o$ a marriage settlement or when such marriage
settlement is void, 'CD shall be their marriage settlement by operation o$ law.
3 's an e(ception, when the 1
st
marriage is dissolved by reason o$ death and the
nd
marriage was entered into be$ore the con*ugal partnership is li.uidated, the law
mandates that a regime o$ complete separation o$ property shall govern.
Art. 75. The future spouses ma"% in the marriage settlements% agree
upon the regime of absolute communit"% conjugal partnership of gains%
complete separation of propert"% or an" other regime. ,n the absence of a
marriage settlement% or when the regime agreed upon is void% the s"stem of
absolute communit" of propert" as established in this Code shall govern.
0 'CD is the regime o$ the spouses in the absence o$ a marriage settlement or when
the marriage settlement is void. This is so because 'CD is more in ,eeping with Filipino
culture.
1 General *ule+ 'll modi$ications to the marriage settlement must be made be$ore
the marriage is celebrated.
2 Exceptions:
0 ;egal /eparation ='rticle 3! =>
>
0 9n such an instance, the property regime is dissolved.
1 -evival o$ the $ormer property regime upon reconciliation i$ the spouses
agree ='rticle 33 =>
>
' spouse may petition the court $or<
_
Art. &(. The decree o$ legal separation shall have the $ollowing e$$ects<
=> The absolute community or the con*ugal partnership shall be dissolved and li.uidated but
the o$$ending spouse shall have no right to any share o$ the net pro$its earned by the
absolute community or the con*ugal partnership, which shall be $or$eited in accordance with
the provisions o$ 'rticle %!=>&
Art. &&. The reconciliation re$erred to in the preceding 'rticles shall have the $ollowing
conse.uences<
0 -eceivership
1 Mudicial separation o$ property, or
The authority to be the sole administrator o$ the con*ugal partnership
9$ the other spouse abandons the other without *ust cause or $ails to comply
with his or her obligations to the $amily. ='rticle 18
>
3 Mudicial +issolution ='rticles 1!0 and 1!3
>
Art. 77. The marriage settlements and an" modification thereof shall be
in writing% signed b" the parties and e-ecuted before the celebration of the
marriage. The" shall not prejudice third persons unless the" are registered in
the local civil registr" where the marriage contract is recorded as well as in the
proper registries of properties.
0 Aorm+ Earriage settlements and their modi$ications must be in writing =private
or public> $or validity
=> The $inal decree o$ legal separation shall be set aside, but the separation o$ property and
any $or$eiture o$ the share o$ the guilty spouse already e$$ected shall subsist, unless the
spouses agree to revive their $ormer property regime.
`
'rt. 18. 9$ a spouse without *ust cause abandons the other or $ails to comply with his or her
obligation to the $amily, the aggrieved spouse may petition the court $or receivership, $or *udicial
separation o$ property, or $or authority to be the sole administrator o$ the con*ugal partnership
property, sub*ect to such precautionary conditions as the court may impose.
The obligations to the $amily mentioned in the preceding paragraph re$er to marital,
parental or property relations.
' spouse is deemed to have abandoned the other when he or she has le$t the con*ugal
dwelling without intention o$ returning. The spouse who has le$t the con*ugal dwelling $or a period
o$ three months or has $ailed within the same period to give any in$ormation as to his or her
whereabouts shall be prima $acie presumed to have no intention o$ returning to the con*ugal
dwelling.
`
Art. )($. 'ny o$ the $ollowing shall be considered su$$icient cause $or *udicial separation o$
property<
=1> That the spouse o$ the petitioner has been sentenced to a penalty which carries with it civil
interdiction&
=> That the spouse o$ the petitioner has been *udicially declared an absentee&
=!> That loss o$ parental authority o$ the spouse o$ petitioner has been decreed by the court&
=%> That the spouse o$ the petitioner has abandoned the latter or $ailed to comply with his or
her obligations to the $amily as provided $or in 'rticle 101&
=0> That the spouse granted the power o$ administration in the marriage settlements has
abused that power& and
=3> That at the time o$ the petition, the spouses have been separated in $act $or at least one
year and reconciliation is highly improbable.
9n the cases provided $or in Numbers =1>, => and =!>, the presentation o$ the $inal
*udgment against the guilty or absent spouse shall be enough basis $or the grant o$ the decree o$
*udicial separation o$ property.
Art. )(&. The spouses may *ointly $ile a veri$ied petition with the court $or the voluntary
dissolution o$ the absolute community or the con*ugal partnership o$ gains, and $or the separation
o$ their common properties.
'll creditors o$ the absolute community or o$ the con*ugal partnership o$ gains, as well as
the personal creditors o$ the spouse, shall be listed in the petition and noti$ied o$ the $iling thereo$.
The court shall ta,e measures to protect the creditors and other persons with pecuniary interest.
Professor Ruben F. Balane Pa)e ,4 of +,-
1 To bind !
rd
persons, the marriage settlement must be registered in<
0 ;ocal Civil -egistry where the marriage contract is recorded.
1 Droper -egistries o$ Droperty
Art. 78. A minor who according to law ma" contract marriage ma" also
e-ecute his or her marriage settlements% but the" shall be valid onl" if the
persons designated in Article '= to give consent to the marriage are made
parties to the agreement% subject to the provisions of Title ,K of this Code.
0 9$ the party has not yet reached the age o$ 1, parental consent is also re.uired
with regard to the marriage settlement.
Art. 79. Aor the validit" of an" marriage settlement e-ecuted b" a person
upon whom a sentence of civil interdiction has been pronounced or who is
subject to an" other disabilit"% it shall be indispensable for the guardian
appointed b" a competent court to be made a part" thereto.
Art. 80. ,n the absence of a contrar" stipulation in a marriage
settlement% the propert" relations of the spouses shall be governed b"
Philippine laws% regardless of the place of the celebration of the marriage and
their residence.
This rule shall not appl"+
5'7 0here both spouses are aliens3
567 0ith respect to the e-trinsic validit" of contracts affecting propert" not
situated in the Philippines and e-ecuted in the countr" where the
propert" is located3 and
587 0ith respect to the e-trinsic validit" of contracts entered into in the
Philippines but affecting propert" situated in a foreign countr" whose
laws re.uire different formalities for its e-trinsic validit".
Art. 81. :ver"thing stipulated in the settlements or contracts referred to
in the preceding articles in consideration of a future marriage% including
donations between the prospective spouses made therein% shall be rendered
void if the marriage does not take place. 9owever% stipulations that do not
depend upon the celebration of the marriages shall be valid.
1 The marriage settlement and the donations propter nuptias are void i$ the
marriage does not ta,e place.
A. Donations &ropter #uptias
-e.uisites o$ +onations Propter nuptias
1. Eade be$ore marriage
. Eade in consideration o$ the marriage =the motivation behind the donation
is the marriage>
!. 9n $avor o$ one or both o$ the spouses
! The donee must be 1 or both o$ the spouses
% The donor can be anybody including 1 o$ the spouses
Professor Ruben F. Balane Pa)e ,* of +,-
0 9$ the wedding gi$t is given be$ore the wedding that is a donation propter
nuptias.
3 9$ the wedding gi$t is given a$ter the wedding, that is treated as an
ordinary donation
Art. 83. These donations are governed b" the rules on ordinar"
donations established in Title ,,, of Gook ,,, of the Civil Code% insofar as
the" are not modified b" the following articles.
0 F2-E< Eust comply with the $orm o$ donations in order to be valid =/ee
'rticles 5%8 and 5%:
>
Art. 84. ,f the future spouses agree upon a regime other than the
absolute communit" of propert"% the" cannot donate to each other in
their marriage settlements more than one/fifth of their present propert".
An" e-cess shall be considered void.
Donations of future propert" shall be governed b" the provisions
on testamentar" succession and the formalities of wills.
1 This article applies only i$ the regime is N2T 'CD. 2therwise, everything
practically would be community property.
9$ the donor is one o$ the $uture spouses and the regime is N2T 'CD, the
donor cannot donate more than 1K0 o$ his D-1/1NT D-2D1-TH.
! The $uture spouse may donate $uture property to his $iancYe $or as long as
it is not ino$$icious =does not impair legitimes o$ the other compulsory heirs>.
This is so because the donation o$ $uture property is really a testamentary
disposition.
% 9n the case o$ 9ateo vs. Lagua, the /upreme Court said that donations
propter nuptias may be revo,ed $or being ino$$icious.
0 9$ the donor is not one o$ the $uture spouses, the donor may give more
than 1K0 o$ his present property provided that the legitimes are not impaired.
3 9$ the regime is 'CD, there is no need to give a donation propter nuptias to
your spouse. 9t is useless since such donation shall become part o$ the
community property. 9n addition, donors ta( must be paid.
Art. 86. A donation b" reason of marriage ma" be revoked b" the
donor in the following cases+
Art. 1*/. The donation o$ a movable may be made orally or in writing.

'n oral donation re.uires the simultaneous delivery o$ the thing or o$ the document
representing the right donated.
9$ the value o$ the personal property donated e(ceeds $ive thousand pesos, the donation
and the acceptance shall be made in writing, otherwise, the donation shall be void.
Art. 1*2. 9n order that the donation o$ an immovable may be valid, it must be made in a
public document, speci$ying therein the property donated and the value o$ the charges which the
donee must satis$y.
Professor Ruben F. Balane Pa)e ,. of +,-
5'7 ,f the marriage is not celebrated or judiciall" declared void a'
initio e-cept donations made in the marriage settlements% which
shall be governed b" Article D'3
567 0hen the marriage takes place without the consent of the
parents or guardian% as re.uired b" law3
587 0hen the marriage is annulled% and the donee acted in bad faith3
5=7 ?pon legal separation% the donee being the guilt" spouse3
5)7 ,f it is with a resolutor" condition and the condition is complied
with3
5B7 0hen the donee has committed an act of ingratitude as specified
b" the provisions of the Civil Code on donations in general.
0 The donations propter nuptias may be revo,ed on the grounds enumerated
here.
1 9n 'rticle 83 =3>, the act o$ ingratitude re$ers to 'rticle 530
.
Art. 87. :ver" donation or grant of gratuitous advantage% direct or
indirect% between the spouses during the marriage shall be void% e-cept
moderate gifts which the spouses ma" give each other on the occasion of
an" famil" rejoicing. The prohibition shall also appl" to persons living
together as husband and wife without a valid marriage.
0 General *ule+ +uring the marriage, the spouses may not donate to one
another.
1 Exception: /pouses may give moderate gi$ts to each other on the
occasion o$ any $amily re*oicing.
,.7E: 'rticle 85 is applicable to common4law spouses =9ata5uena vs.
;ervantes>
This is to minimi7e improper or undue pressure as well as to prevent the
spouses $rom de$rauding their creditors.
G. 5!ste o. A'solute *ounit!
Art. 91. ?nless otherwise provided in this Chapter or in the
marriage settlements% the communit" propert" shall consist of all the
propert" owned b" the spouses at the time of the celebration of the
marriage or ac.uired thereafter.
Art. 1&$. The donation may also be revo,ed at the instance o$ the donor, by reason o$
ingratitude in the $ollowing cases<
=1> 9$ the donee should commit some o$$ense against the person, the honor or the property o$
the donor, or o$ his wi$e or children under his parental authority&
=> 9$ the donee imputes to the donor any criminal o$$ense, or any act involving moral
turpitude, even though he should prove it, unless the crime or the act has been committed
against the donee himsel$, his wi$e or children under his authority&
=!> 9$ he unduly re$uses him support when the donee is legally or morally bound to give
support to the donor.
Professor Ruben F. Balane Pa)e ,+ of +,-
Art. 92. The following shall be e-cluded from the communit"
propert"+
5'7 Propert" ac.uired during the marriage b" gratuitous title b"
either spouse% and the fruits as well as the income thereof% if an"%
unless it is e-pressl" provided b" the donor% testator or grantor
that the" shall form part of the communit" propert"3
567 Propert" for personal and e-clusive use of either spouse.
9owever% jewelr" shall form part of the communit" propert"3
587 Propert" ac.uired before the marriage b" either spouse who has
legitimate descendants b" a former marriage% and the fruits as
well as the income% if an"% of such propert".
! General *ule+ Community property shall consist o$ all the property
owned by the spouses at the time o$ the celebration o$ the marriage or
ac.uired therea$ter.
4 Exceptions:
0 Droperty ac.uired during the marriage by gratuitous title, including
the $ruits and the income.
Exception to t"e exception: The donor, testator, or grantor e(pressly
provides otherwise.
0 's $ather dies. ' inherits $rom the $ather. ' marries @. The
property inherited by ' $rom his $ather is part o$ the community
property.
1 @s mother dies during @s marriage to '. The property inherited by
@ $rom her mother does not $orm part o$ the community property.
9n 'CD, the income $rom separate property o$ the spouses does not
$orm part o$ the community property.
9N CD6, the income $rom separate property o$ the spouses $orms part
o$ the community property.
1 Droperty $or personal and e(clusive use o$ either spouse
Exception to t"e Exception: Mewelry $orms part o$ the community
property.
Droperty ac.uired be$ore the marriage by either spouse who has
legitimate descendants by a $ormer marriage, and the $ruits and income o$
such property.
0 This is provided $or so that the children $rom the 1
st
marriage will
not be pre*udiced.
Art. 93. Propert" ac.uired during the marriage is presumed to
belong to the communit"% unless it is proved that it is one of those
e-cluded therefrom.
1 &resuption: Droperty ac.uired during the marriage is presumed to
belong to the community.
Aowever it can be rebutted by proving such property ac.uired during
marriage is e(cluded.
Professor Ruben F. Balane Pa)e ,/ of +,-
Art. 94. The absolute communit" of propert" shall be liable for+
0 'rticle :% enumerates the charges upon the absolute community o$
property.
5'7 The support of the spouses% their common children% and
legitimate children of either spouse3 however% the support of
illegitimate children shall be governed b" the provisions of this
Code on @upport3
1 The 'CD shall support the spouses common children and legitimate
children o$ either spouse
' common child o$ the spouse may not necessarily be legitimate. For
e(ample, ' is married to @. ' has an a$$air with C. ' and C have a child, +. @
dies. ' and C get married. + cannot be legitimated since at the time o$ +s
conception, ' and C had no capacity to get married.
! 9llegitimate children are supported<
0 Drimarily by their biological parent
1 /ubsidiarily by the 'CD ='rticle :% =:>
C
>
567 All debts and obligations contracted during the marriage b" the
designated administrator/spouse for the benefit of the
communit"% or b" both spouses% or b" one spouse with the
consent of the other3
587 Debts and obligations contracted b" either spouse without the
consent of the other to the e-tent that the famil" ma" have been
benefited3
The wordings under 'rticles :% => and :% =!> are di$$erent
'rticle :% => contemplates ! situations<
1. 2bligations contracted by the designated administrator spouse $or the
purpose o$ bene$iting the community.
"nder :% => =a>, purpose is enough. 9t is not re.uired to show to what
e(tent the $amily bene$ited.
. 2bligations contracted by both spouses
!. 2bligations contracted by 1 spouse with the consent o$ the other.
'rticle :% =!> contemplates the situation wherein 1 spouse contracts an
obligation without the consent o$ the other.
*
Art. 2*. The absolute community o$ property shall be liable $or<
=:> 'ntenuptial debts o$ either spouse other than those $alling under paragraph =5> o$ this
'rticle, the support o$ illegitimate children o$ either spouse, and liabilities incurred by either
spouse by reason o$ a crime or a .uasi4delict, in case o$ absence or insu$$iciency o$ the
e(clusive property o$ the debtor4spouse, the payment o$ which shall be considered as
advances to be deducted $rom the share o$ the debtor4spouse upon li.uidation o$ the
community&
The 'CD is liable only to the e(tent that the $amily may have bene$ited.
0 &ro'le: #hat is the rule now regarding obligations contracted by the
business o$ a particular spouse)
'ccording to Dro$essor @alane, there are views. 2ne view is that 'rticle :%
=!> may be applied since both spouses are the administrators o$ the
community property. There$ore, one spouse should not act alone as
administrator. There$ore, obligations contracted $or the business operations o$
a spouse are without consent o$ the other.
'nother view is that such debts would $all under 'rticle :% =>. 'ccording to
Mustice Vitug, there is implied consent by the other spouse since the same did
not ob*ect. 2therwise, commercial transactions would slow down.
5=7 All ta-es% liens% charges and e-penses% including major or minor
repairs% upon the communit" propert"3
5)7 All ta-es and e-penses for mere preservation made during
marriage upon the separate propert" of either spouse used b" the
famil"3
1 Ta(es and e(penses $or the preservation upon the e(clusive property by 1
o$ the spouses should be borne by the 'CD. This is so because the $amily
bene$its.
5B7 :-penses to enable either spouse to commence or complete a
professional or vocational course% or other activit" for self/
improvement3
5C7 Antenuptial debts of either spouse insofar as the" have
redounded to the benefit of the famil"3
5D7 The value of what is donated or promised b" both spouses in
favor of their common legitimate children for the e-clusive
purpose of commencing or completing a professional or
vocational course or other activit" for self/improvement3
5E7 Antenuptial debts of either spouse other than those falling under
paragraph 5C7 of this Article% the support of illegitimate children
of either spouse% and liabilities incurred b" either spouse b"
reason of a crime or a .uasi/delict% in case of absence or
insufficienc" of the e-clusive propert" of the debtor/spouse% the
pa"ment of which shall be considered as advances to be deducted
from the share of the debtor/spouse upon li.uidation of the
communit"3 and
'nte4nuptial debts not $alling under 'rticle :% =5> will be borne by the 'CD
i$ the separate property o$ the debtor4spouse is insu$$icient.
5'47 :-penses of litigation between the spouses unless the suit is
found to be groundless.
,f the communit" propert" is insufficient to cover the foregoing
liabilities% e-cept those falling under paragraph 5E7% the spouses shall be
solidaril" liable for the unpaid balance with their separate properties.
'. Administration and :njo"ment of Communit" Propert"
Art. 96$ %1. The administration and enjo"ment of the
communit" propert" shall belong to both spouses jointl". ,n case of
disagreement% the husband;s decision shall prevail% subject to
recourse to the court b" the wife for proper remed"% which must be
availed of within five "ears from the date of the contract implementing
such decision.
! 'dministration o$ the community property belongs to both spouses
*ointly.
% @oth spouses must consent to the encumbrance or disposition o$
the community property.
Art. 96 122$ %2. ,n the event that one spouse is incapacitated or
otherwise unable to participate in the administration of the common
properties% the other spouse ma" assume sole powers of
administration. These powers do not include disposition or
encumbrance without authorit" of the court or the written consent of
the other spouse. ,n the absence of such authorit" or consent% the
disposition or encumbrance shall be void. 9owever% the transaction
shall be construed as a continuing offer on the part of the consenting
spouse and the third person% and ma" be perfected as a binding
contract upon the acceptance b" the other spouse or authori$ation b"
the court before the offer is withdrawn b" either or both offerors.
0 The other spouse may assume sole powers o$ administration when<
0 The other spouse is incapacitated.
1 The other spouse is unable to participate =i.e. abroad>
The power to administer does not include the power to dispose or
encumber solely by 1 spouse. Court authority or the approval o$ the other
spouse is re.uired.
Art. 97. :ither spouse ma" dispose b" will of his or her
interest in the communit" propert".
Art. 98. 2either spouse ma" donate an" communit" propert"
without the consent of the other. 9owever% either spouse ma"%
without the consent of the other% make moderate donations from the
communit" propert" for charit" or on occasions of famil" rejoicing or
famil" distress.
General *ule+ 9n order to donate any community property, the other
spouse must consent.
Exception: Eoderate donations do not need the consent o$ the other
spouse i$ $or<
1. Charity
. 2ccasions o$ $amily re*oicing or distress
Professor Ruben F. Balane Pa)e ,, of +,-
6. Dissolution and !i.uidation of Absolute Communit"
Art. 99. The absolute communit" terminates+
5'7 ?pon the death of either spouse3
567 0hen there is a decree of legal separation3
587 0hen the marriage is annulled or declared void3 or
5=7 ,n case of judicial separation of propert" during the marriage
under Article '8= to '8D.
0 +issolution o$ the 'CD is not synonymous with the dissolution o$ the
marriage. 9n 'rticles :: => and =%>, the 'CD is dissolved although the
marriage is not. Aowever, the dissolution o$ the marriage automatically
results in the dissolution o$ the 'CD.
1 9n 'rticle :: =!>, when a marriage is declared as a nullity, there is
no 'CD to dissolve since there was no property regime to begin with. The
dissolution in such a case would be governed by the rules on co4ownership.
2 'rticle :: is not a complete enumeration o$ the instances when the
'CD terminates. 'nother instance is when the marriage is terminated by
the reappearance o$ the absent spouse ='rticles % and %! =>
>.
Art. 102. ?pon dissolution of the absolute communit" regime%
the following procedure shall appl"+
properties of the absolute communit" and the e-clusive
567 The debts and obligations of the absolute communit" shall be
paid out of its assets. ,n case of insufficienc" of said assets%
the spouses shall be solidaril" liable for the unpaid balance
with their separate properties in accordance with the
provisions of the second paragraph of Article E=.
587 0hatever remains of the e-clusive properties of the spouses
shall thereafter be delivered to each of them.
5=7 The net remainder of the properties of the absolute
communit" shall constitute its net assets% which shall be
_
Art. *%. The subse.uent marriage re$erred to in the preceding 'rticle shall be automatically
terminated by the recording o$ the a$$idavit o$ reappearance o$ the absent spouse, unless there is a
*udgment annulling the previous marriage or declaring it void a5 initio.
' sworn statement o$ the $act and circumstances o$ reappearance shall be recorded in the
civil registry o$ the residence o$ the parties to the subse.uent marriage at the instance o$ any
interested person, with due notice to the spouses o$ the subse.uent marriage and without
pre*udice to the $act o$ reappearance being *udicially determined in case such $act is disputed.
Art. *(. The termination o$ the subse.uent marriage re$erred to in the preceding 'rticle
shall produce the $ollowing e$$ects<
=> The absolute community o$ property or the con*ugal partnership, as the case may be, shall
be dissolved and li.uidated, but i$ either spouse contracted said marriage in bad $aith, his
or her share o$ the net pro$its o$ the community property or con*ugal partnership property
shall be $or$eited in $avor o$ the common children or, i$ there are none, the children o$ the
guilty spouse by a previous marriage or in de$ault o$ children, the innocent spouse&
Professor Ruben F. Balane Pa)e ,- of +,-
divided e.uall" between husband and wife% unless a different
proportion or division was agreed upon in the marriage
settlements% or unless there has been a voluntar" waiver of
such share provided in this Code. Aor purpose of computing
the net profits subject to forfeiture in accordance with Articles
=8% 2o. 567 and B8% 2o. 567% the said profits shall be the
increase in value between the market value of the communit"
propert" at the time of the celebration of the marriage and the
market value at the time of its dissolution.
5B7 ?nless otherwise agreed upon b" the parties% in the partition
of the properties% the conjugal dwelling and the lot on which it
is situated shall be adjudicated to the spouse with whom the
majorit" of the common children choose to remain. Children
below the age of seven "ears are deemed to have chosen the
mother% unless the court has decided otherwise. ,n case there
in no such majorit"% the court shall decide% taking into
consideration the best interests of said children.
0 'rticle 10 enumerates the steps in li.uidation<
0 9nventory
1 ! lists
0 9nventory o$ community property
1 9nventory o$ separate property o$ the wi$e
9nventory o$ separate property o$ the husband.
1 Dayment o$ Community +ebts
0 First, pay out o$ community assets
1 9$ not enough, husband and wi$e are solidarily liable with their separate property.
+elivery to each spouse his or her separate property i$ any.
! +ivision o$ the net community assets
,.7E: There are special rules regarding the $amily home.
% +elivery o$ presumptive legitimes i$ any to the children
0 The presumptive legitimes are given in the $ollowing instances<
0 +eath o$ either spouse ='rticle 10!>
1 ;egal /eparation ='rticles 3! and 3%>
'nnulment ='rticles 00 ? 0>
! Mudicial /eparation o$ Droperty ='rticles 1!% ? 1!5>
% -eappearance o$ the absent spouse which terminates the
nd
marriage ='rticle %!>
Art. 100. The separation in fact between husband and wife shall
not affect the regime of absolute communit" e-cept that+
5'7 The spouse who leaves the conjugal home or refuses to live
therein% without just cause% shall not have the right to be
supported3
567 0hen the consent of one spouse to an" transaction of the
other is re.uired b" law% judicial authori$ation shall be
obtained in a summar" proceeding3
587 ,n the absence of sufficient communit" propert"% the separate
propert" of both spouses shall be solidaril" liable for the
support of the famil". The spouse present shall% upon proper
petition in a summar" proceeding% be given judicial authorit"
to administer or encumber an" specific separate propert" of
the other spouse and use the fruits or proceeds thereof to
satisf" the latter(s share.
1 /eparation de !acto does not dissolve the 'CD.
Art. 101. ,f a spouse without just cause abandons the other or
fails to compl" with his or her obligations to the famil"% the aggrieved
spouse ma" petition the court for receivership% for judicial separation
of propert" or for authorit" to be the sole administrator of the
absolute communit"% subject to such precautionar" conditions as the
court ma" impose.
The obligations to the famil" mentioned in the preceding
paragraph refer to marital% parental or propert" relations.
A spouse is deemed to have abandoned the other when her or
she has left the conjugal dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a period of three months
or has failed within the same period to give an" information as to his
or her whereabouts shall be pria .acie presumed to have no
intention of returning to the conjugal dwelling.
9$ a spouse abandons the other spouse without *ust cause or $ails to
comply with his or marital obligations, the aggrieved spouse may petition
the court $or the $ollowing<
0 -eceivership
1 Mudicial separation o$ property
'uthority to be the sole administrator.
0 'bandonment occurs when one leaves the con*ugal dwelling without
intention o$ returning.
1 &resuption o. A'an+onent: #hen the spouse has le$t the
con*ugal dwelling $or a period o$ ! months without giving in$ormation as to
his whereabouts.
Art. 104. 0henever the li.uidation of the communit" properties
of two or more marriages contracted b" the same person before the
effectivit" of this Code is carried out simultaneousl"% the respective
capital% fruits and income of each communit" shall be determined
upon such proof as ma" be considered according to the rules of
evidence. ,n case of doubt as to which communit" the e-isting
Professor Ruben F. Balane Pa)e -4 of +,-
properties belong% the same shall be divided between the different
communities in proportion to the capital and duration of each.
0 'rticle 10% will hardly ever occur. /,ip this.
Professor Ruben F. Balane Pa)e -* of +,-
C. *on6u/al &artners"ip o. Gains
1 Inowing the CD6 is important. "nder the Civil Code, this was the
preponderant property regime. /ince a lot o$ marriages too, place be$ore the
e$$ectivity o$ the Family Code ? 'ugust !, 1:88 ? many property regimes are
CD6.
Art. 105. ,n case the future spouses agree in the marriage
settlements that the regime of conjugal partnership gains shall govern
their propert" relations during marriage% the provisions in this Chapter
shall be of supplementar" application.
The provisions of this Chapter shall also appl" to conjugal
partnerships of gains alread" established between spouses before the
effectivit" of this Code% without prejudice to vested rights alread"
ac.uired in accordance with the Civil Code or other laws% as provided in
Article 6)B.
The regime o$ CD6 applies<
0 9n case the $uture spouse agree on this regime in their marriage settlement, their
property relations will be governed by their agreement with the Family Code suppletorily
applicable.
1 CD6s be$ore the a$$ectivity o$ the Family Code, without pre*udice to vested rights
Art. 106. ?nder the regime of conjugal partnership of gains% the
husband and wife place in a common fund the proceeds% products% fruits
and income from their separate properties and those ac.uired b" either
or both spouses through their efforts or b" chance% and% upon dissolution
of the marriage or of the partnership% the net gains or benefits obtained
b" either or both spouses shall be divided e.uall" between them% unless
otherwise agreed in the marriage settlements.
! The husband and wi$e place in a common $und<
0 9ncome o$ their separate properties
1 1verything ac.uired by them through their e$$orts =whether singly
or *ointly>
1verything ac.uired by them through chance =the winnings $rom
gambling, hidden treasure, those ac.uired $rom hunting>
0 The spouses are not co4owners o$ the con*ugal properties during the
marriage and cannot alienate the supposed Z interest o$ each in the said
properties. The interest o$ the spouses in the con*ugal properties is only
inchoate or a mere e(pectancy and does not ripen into title until it appears
a$ter the dissolution and li.uidation o$ the partnership that there are net
assets =De Ansaldo vs. +#eri!! o! 9anila>.
Professor Ruben F. Balane Pa)e -. of +,-
Art. 107. The rules provided in Articles DD
and DE
shall also appl"

to conjugal partnership of gains.
Art. 108. The conjugal partnership shall be governed b" the rules
on the contract of partnership in all that is not in conflict with what is
e-pressl" determined in this Chapter or b" the spouses in their marriage
settlements.
0 The rules on partnership shall be applied in a suppletory manner.
Art. 109. The following shall be the e-clusive propert" of each
spouse+
5'7 That which is brought to the marriage as his or her own3
567 That which each ac.uires during the marriage b" gratuitous title3
587 That which is ac.uired b" right of redemption% b" barter or b"
e-change with propert" belonging to onl" one of the spouses3 and
5=7 That which is purchased with e-clusive mone" of the wife or of
the husband.
1 'rticle 10: enumerates the e(clusive property o$ spouses<
1. Droperty brought to the marriage as his or her own
/trictly spea,ing paraphernal property re$ers to the e(clusive
property o$ the wi$e while capital is the e(clusive property o$ the
husband.
. Droperty which each spouse ac.uires during the marriage by gratuitous
title
! 6ratuitous title is either<
0 @y succession
1 @y donation
0 'CD also has a similar provision.
!. Droperty which is ac.uired by right o$ redemption, by barter or e(change
with property belonging to only one o$ the spouses& and
0 'rticle 10: =!> is illustrated as $ollows< The wi$e owns e(clusively a
piece o$ land. The wi$e sells such land with the right to repurchase it.
The wi$e redeems the money using con*ugal $unds. "nder 'rticle 10:
=!>, the property is still paraphernal as the right o$ redemption belongs
to the wi$e. The $act that con*ugal $unds were used is irrelevant in that
_
Art. //. The absolute community o$ property between spouses shall commence at the precise
moment that the marriage is celebrated. 'ny stipulation, e(press or implied, $or the
commencement o$ the community regime at any other time shall be void.
_
Art. /2. No waiver o$ rights, shares and e$$ects o$ the absolute community o$ property during
the marriage can be made e(cept in case o$ *udicial separation o$ property.
#hen the waiver ta,es place upon a *udicial separation o$ property, or a$ter the marriage
has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded
as provided in 'rticle 55. The creditors o$ the spouse who made such waiver may petition the court
to rescind the waiver to the e(tent o$ the amount su$$icient to cover the amount o$ their credits.
Professor Ruben F. Balane Pa)e -+ of +,-
the wi$e must li.uidate such debt to the common $und upon the
li.uidation o$ the property regime.
1 'nother illustration o$ 'rticle 10: =!> is as $ollows< The wi$e owns
e(clusively a lot in @F Aomes in Q.C. The wi$e decides to sell the lot
and gets money in e(change. The money is paraphernal property.
%. Droperty which is purchased with e(clusive money o$ the wi$e or o$ the
husband
0 The rule is the same $or 'CD although there is no e(press provision.
Art. 110. The spouses retain the ownership% possession%
administration and enjo"ment of their e-clusive properties.
:ither spouse ma"% during the marriage% transfer the
administration of his or her e-clusive propert" to the other b" means of a
public instrument% which shall be recorded in the registr" of propert" of
the place the propert" is located.
Art. 111. A spouse of age ma" mortgage% encumber% alienate or
otherwise dispose of his or her e-clusive propert"% without the consent of
the other spouse% and appear alone in court to litigate with regard to the
same.
Art. 112. The alienation of an" e-clusive propert" of a spouse
administered b" the other automaticall" terminates the administration
over such propert" and the proceeds of the alienation shall be turned
over to the owner/spouse.
Art. 113. Propert" donated or left b" will to the spouses% jointl"
and with designation of determinate shares% shall pertain to the donee/
spouses as his or her own e-clusive propert"% and in the absence of
designation% share and share alike% without prejudice to the right of
accretion when proper.
Art. 114. ,f the donations are onerous% the amount of the charges
shall be borne b" the e-clusive propert" of the donee spouse% whenever
the" have been advanced b" the conjugal partnership of gains.
Art. 115. *etirement benefits% pensions% annuities% gratuities%
usufructs and similar benefits shall be governed b" the rules on
gratuitous or onerous ac.uisitions as ma" be proper in each case.
Art. 116. All propert" ac.uired during the marriage% whether the
ac.uisition appears to have been made% contracted or registered in the
name of one or both spouses% is presumed to be conjugal unless the
contrar" is proved.
1 &resuption: 'll property ac.uired during marriage is presumed to be
con*ugal =but the contrary may be proved>.
Art. 117. The following are conjugal partnership properties+
Professor Ruben F. Balane Pa)e -/ of +,-
5'7 Those ac.uired b" onerous title during the marriage at the
e-pense of the common fund% whether the ac.uisition be for the
partnership% or for onl" one of the spouses3
567 Those obtained from the labor% industr"% work or profession of
either or both of the spouses3
587 The fruits% natural% industrial% or civil% due or received during the
marriage from the common propert"% as well as the net fruits
from the e-clusive propert" of each spouse3
'ccording to Dro$essor @alane, 'rticle 115 =!> is inaccurate. There is no
problem i$ the $ruits come $rom the con*ugal property. The problem arises
when the $ruits arise $rom the spouses separate properties. For $ruits arising
$rom the separate properties o$ the spouses to be considered con*ugal, one
must loo, at when the $ruits are due and not when the $ruits are received.
! For e(ample, ' lends D 1,000,000 to @ at 0N interest payable every
.uarter. @ is supposed to pay interest on Earch, Mune, /ept, and +ec. @ did
not pay the interest due on Earch. ' gets married to C. @ $inally pays the
interests $or the months o$ Earch and Mune on Mune. The interest $or Earch is
e(clusive property while the interest $or Mune is con*ugal property. The
interest $or Earch is e(clusive property because the test is not when ' and C
receives the $ruits. 9t is when the $ruits are due. 9n this case, the $ruits were
due on Earch be$ore the marriage between ' and C. That is why the interest
$or Mune is con*ugal property.
5=7 The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the propert" where the treasure
is found3
5)7 Those ac.uired through occupation such as fishing or hunting3
5B7 !ivestock e-isting upon the dissolution of the partnership in
e-cess of the number of each kind brought to the marriage b"
either spouse3 and
5C7 Those which are ac.uired b" chance% such as winnings from
gambling or betting. 9owever% losses therefrom shall be borne
e-clusivel" b" the loser/spouse.
Art. 118. Propert" bought on installments paid partl" from
e-clusive funds of either or both spouses and partl" from conjugal funds
belongs to the bu"er or bu"ers if full ownership was vested before the
marriage and to the conjugal partnership if such ownership was vested
during the marriage. ,n either case% an" amount advanced b" the
partnership or b" either or both spouses shall be reimbursed b" the
owner or owners upon li.uidation of the partnership.
0 'rticle 118 is actually 'rticle 115 =8>.
1 7est: #hen did the ownership vest in the buyer) The source o$ the $unds
is irrelevant.
For e(ample, ' who is single, buys on installment a lot in Tagaytay. ' has
to pay 30 monthly installments. The contract provides that ownership would
vest upon the $ull payment o$ the installments. ' had already paid 0 monthly
installments. ' gets married to @. '$ter that ' pays the remaining %0
monthly installments using con*ugal $unds. The property is con*ugal $ollowing
'rt. 118. The $irst 0 monthly installments is a credit o$ ' against the
property regime. The converse is also true. The relevance o$ the $unds is only
$or accounting purposes.
Art. 119. 0henever an amount or credit pa"able within a period of
time belongs to one of the spouses% the sums which ma" be collected
during the marriage in partial pa"ments or b" installments on the
principal shall be the e-clusive propert" of the spouse. 9owever%
interests falling due during the marriage on the principal shall belong to
the conjugal partnership.
Art. 120. The ownership of improvements% whether for utilit" or
adornment% made on the separate propert" of the spouses at the e-pense
of the partnership or through the acts or efforts of either or both spouses
shall pertain to the conjugal partnership% or to the original owner/spouse%
subject to the following rules+
0hen the cost of the improvement made b" the conjugal
partnership and an" resulting increase in value are more than the value
of the propert" at the time of the improvement% the entire propert" of one
of the spouses shall belong to the conjugal partnership% subject to
reimbursement of the value of the propert" of the owner/spouse at the
time of the improvement3 otherwise% said propert" shall be retained in
ownership b" the owner/spouse% likewise subject to reimbursement of
the cost of the improvement.
,n either case% the ownership of the entire propert" shall be vested
upon the reimbursement% which shall be made at the time of the
li.uidation of the conjugal partnership.
0 This is ,nown as reverse accession.
1 9n this situation, an improvement which is paid $or by con*ugal $unds is
built on land which is e(clusively owned by one o$ the spouses.
9n ;altex vs. ?elias, the /upreme Court said that be$ore 'rticle 10 could
be applied, it is essential that the land must be owned by one o$ the spouses
be$ore the improvement is introduced.
! The general rule is that the accessory $ollows the principal. Thus, normally
the improvement would $ollow the improvement. 9n 'rticle 10, this is may
not be the case, and it may be that the land would $ollow the improvement.
Thats why its called reverse accession.
% -ules<
0 -everse accession 4 i$ the cost o$ the improvement and the plus
value are more than the value o$ the principal property at the time o$ the
improvement. Thus, the entire property becomes con*ugal.
0 For e(ample, a lot is worth D1,000,000. ' structure worth
D800,000 was built. Thus, the total cost o$ the separate property and
the improvement is D1,800,000. Aowever due to the building o$ the
improvement, the value o$ the entire property increases by D!00,000 ?
the plus value. Thus, the entire property is worth D,100,000. 9n this
case, the entire property becomes con*ugal. The cost o$ the
improvement =D800,000> and the plus value =D!00,000> is more than
the cost o$ the land =D1,000,000>.
1 'ccession ? i$ the cost o$ the improvement and the plus value are
less than the value o$ the principal property at the time the improvement.
Thus, the entire property becomes e(clusive property o$ the spouse.
2wnership o$ the entire property shall vest on the owner4spouse or
the partnership as the case upon the reimbursement o$ the improvement.
! -eimbursement time is the time o$ the li.uidation o$ the CD6.
% The value to be paid at the li.uidation is the value at the time o$ the
improvement =This overrules Padilla vs. Padilla>.
1 ODlus valueP re$ers to what the improvement contributes to the
increase in the value o$ the whole thing.
2 &ro'le Areas:
0 /uppose the improvement is destroyed be$ore reimbursement. #ill
'rticle 10 apply) 'rticle 10 applies only on the assumption that the
improvement e(ists at the time o$ li.uidation. 9$ the property is destroyed
be$ore the li.uidation, the 'rticle 10 wont apply. 9n the case o$ Padilla
vs. Paterno, the /C said that land never became con*ugal because the
con*ugal improvements were destroyed be$ore payment could be e$$ected.
1 +oes the vesting o$ ownership in reverse accession retroact to the
time o$ the building o$ the improvement) The law is not clear.
Charges upon the Conjugal Partnership of Gains
0 The charges upon the CD6 are parallel to the charges on the 'CD.
Art. 121. The conjugal partnership shall be liable for+
5'7 The support of the spouse% their common children% and the
legitimate children of either spouse3 however% the support
of illegitimate children shall be governed b" the provisions
of this Code on @upport3
567 All debts and obligations contracted during the marriage b"
the designated administrator/spouse for the benefit of the
conjugal partnership of gains% or b" both spouses or b" one
of them with the consent of the other3
587 Debts and obligations contracted b" either spouse without
the consent of the other to the e-tent that the famil" ma"
have benefited3
5=7 All ta-es% liens% charges% and e-penses% including major or
minor repairs upon the conjugal partnership propert"3
5)7 All ta-es and e-penses for mere preservation made during
the marriage upon the separate propert" of either spouse3
1 There is no re.uirement here that it be used by the $amily since the
CD6 is the usu$ructuary o$ the property.
Professor Ruben F. Balane Pa)e -, of +,-
5B7 :-penses to enable either spouse to commence or
complete a professional% vocational% or other activit" for
self/improvement3
5C7 Antenuptial debts of either spouse insofar as the" have
redounded to the benefit of the famil"3
5D7 The value of what is donated or promised b" both spouses
in favor of their common legitimate children for the
e-clusive purpose of commencing or completing a
professional or vocational course or other activit" for self/
improvement3 and
5E7 :-penses of litigation between the spouses unless the suit
is found to groundless.
,f the conjugal partnership is insufficient to cover the
foregoing liabilities% the spouses shall be solidaril" liable for the
unpaid balance with their separate properties.
The 'rticles 1 to 10 have counterpart provisions in the 'CD.
CPG P*#>,@,#2 C#?2T:*PA*T ACP P*#>,@,#2
Art. 122. The pa"ment of
personal debts contracted b" the
husband or the wife before or during
the marriage shall not be charged to
the conjugal properties partnership
e-cept insofar as the" redounded to
the benefit of the famil".
2either shall the fines and
pecuniar" indemnities imposed upon
them be charged to the partnership.
9owever% the pa"ment of
personal debts contracted b" either
spouse before the marriage% that of
fines and indemnities imposed upon
them% as well as the support of
illegitimate children of either spouse%
ma" be enforced against the
partnership assets after the
responsibilities enumerated in the
preceding Article have been covered% if
the spouse who is bound should have
no e-clusive propert" or if it should be
insufficient3 but at the time of the
li.uidation of the partnership% such
spouse shall be charged for what has
been paid for the purpose above/
mentioned.
Art. 94. The absolute
communit" of propert" shall be liable
for+
5E7 Antenuptial debts of either
spouse other than those
falling under paragraph 5C7 of
this Article% the support of
illegitimate children of either
spouse% and liabilities incurred
b" either spouse b" reason of
a crime or a .uasi/delict% in
case of absence or
insufficienc" of the e-clusive
propert" of the debtor/spouse%
the pa"ment of which shall be
considered as advances to be
deducted from the share of the
debtor/spouse upon
li.uidation of the communit"3
Art. 123. 0hatever ma" be lost
during the marriage in an" game of
Art. 95. 0hatever ma" be lost
during the marriage in an" game of
Professor Ruben F. Balane Pa)e -- of +,-
chance or in betting% sweepstakes% or
an" other kind of gambling whether
permitted or prohibited b" law% shall
be borne b" the loser and shall not be
charged to the con6u/al partners"ip
but an" winnings therefrom shall form
part of the con6u/al partners"ip
propert!.

chance% betting% sweepstakes% or an"
other kind of gambling% whether
permitted or prohibited b" law% shall
be borne b" the loser and shall not be
charged to the counit! but an"
winnings therefrom shall form part of
the counit! propert!.
Art. 124. The administration
and enjo"ment of the con6u/al
partners"ip shall belong to both
spouses jointl". ,n case of
disagreement% the husband;s decision
shall prevail% subject to recourse to the
court b" the wife for proper remed"%
which must be availed of within five
"ears from the date of the contract
implementing such decision.
,n the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
con6u/al properties% the other spouse
ma" assume sole powers of
administration. These powers do not
include disposition or encumbrance
without authorit" of the court or the
written consent of the other spouse. ,n
the absence of such authorit" or
consent% the disposition or
encumbrance shall be void. 9owever%
the transaction shall be construed as a
continuing offer on the part of the
consenting spouse and the third
person% and ma" be perfected as a
binding contract upon the acceptance
b" the other spouse or authori$ation
b" the court before the offer is
withdrawn b" either or both offerors.
Art. EB. The administration
and enjo"ment of the counit!
propert! shall belong to both spouses
jointl". ,n case of disagreement% the
husband;s decision shall prevail%
subject to recourse to the court b" the
wife for proper remed"% which must be
availed of within five "ears from the
date of the contract implementing such
decision.
,n the event that one spouse is
incapacitated or otherwise unable to
participate in the administration of the
coon properties% the other spouse
ma" assume sole powers of
administration. These powers do not
include disposition or encumbrance
without authorit" of the court or the
written consent of the other spouse. ,n
the absence of such authorit" or
consent% the disposition or
encumbrance shall be void. 9owever%
the transaction shall be construed as a
continuing offer on the part of the
consenting spouse and the third
person% and ma" be perfected as a
binding contract upon the acceptance
b" the other spouse or authori$ation
b" the court before the offer is
withdrawn b" either or both offerors.
Art. 125. 2either spouse ma"
donate an" con6u/al partners"ip
propert! without the consent of the
other. 9owever% either spouse ma"%
without the consent of the other% make
moderate donations from the con6u/al
partners"ip propert! for charit" or on
occasions of famil" rejoicing or famil"
distress.
Art. 98. 2either spouse ma"
donate an" counit! propert!
without the consent of the other.
9owever% either spouse ma"% without
the consent of the other% make
moderate donations from the
counit! propert! for charit" or on
occasions of famil" rejoicing or famil"
distress.
! The rules on dissolution are the same.
CPG P*#>,@,#2 C#?2T:*PA*T ACP P*#>,@,#2
Art. 126. The con6u/al
partners"ip terminates+
4 ?pon the death of either
spouse3
' 0hen there is a decree of legal
separation3
6 0hen the marriage is annulled
or declared void3 or
8 ,n case of judicial separation
of propert" during the
marriage under Articles '8= to
'8D.
Art. 99. The a'solute
counit! terminates+
4 ?pon the death of either
spouse3
' 0hen there is a decree of legal
separation3
6 0hen the marriage is annulled
or declared void3 or
8 ,n case of judicial separation
of propert" during the
marriage under Article '8= to
'8D.
0 ;i,e 'rticle :: =!>, 'rticle 13 =!> is incorrect. The marriage
regime in a void marriage never e(isted. There is nothing to dissolve. The
special rules o$ co4ownership shall govern.
Art. 127. The separation in fact
between husband and wife shall not
affect the regime of con6u/al
partners"ip$ e-cept that+
4 The spouse who leaves the
conjugal home or refuses to
live therein% without just
cause% shall not have the right
to be supported3
' 0hen the consent of one
spouse to an" transaction of
the other is re.uired b" law%
judicial authori$ation shall be
obtained in a summar"
proceeding3
6 ,n the absence of sufficient
con6u/al partners"ip propert!%
the separate propert" of both
spouses shall be solidaril"
liable for the support of the
famil". The spouse present
shall% upon petition in a
summar" proceeding% be given
judicial authorit" to administer
or encumber an" specific
separate propert" of the other
spouse and use the fruits or
proceeds thereof to satisf" the
latter(s share.
Art. 100. The separation in fact
between husband and wife shall not
affect the regime of a'solute
counit! e-cept that+
4 The spouse who leaves the
conjugal home or refuses to
live therein% without just
cause% shall not have the right
to be supported3
' 0hen the consent of one
spouse to an" transaction of
the other is re.uired b" law%
judicial authori$ation shall be
obtained in a summar"
proceeding3
6 ,n the absence of sufficient
counit! propert!% the
separate propert" of both
spouses shall be solidaril"
liable for the support of the
famil". The spouse present
shall% upon proper petition in a
summar" proceeding% be given
judicial authorit" to administer
or encumber an" specific
separate propert" of the other
spouse and use the fruits or
proceeds thereof to satisf" the
latter(s share.
Art. 128. ,f a spouse without
just cause abandons the other or fails
to compl" with his or her obligation to
the famil"% the aggrieved spouse ma"
petition the court for receivership% for
judicial separation of propert"% or for
authorit" to be the sole administrator
of the con6u/al partners"ip propert!%
subject to such precautionar"
conditions as the court ma" impose.
The obligations to the famil"
mentioned in the preceding paragraph
refer to marital% parental or propert"
relations.
A spouse is deemed to have
abandoned the other when he or she
has left the conjugal dwelling without
intention of returning. The spouse who
has left the conjugal dwelling for a
period of three months or has failed
within the same period to give an"
information as to his or her
whereabouts shall be pria .acie
presumed to have no intention of
returning to the conjugal dwelling.
Art. 101. ,f a spouse without
just cause abandons the other or fails
to compl" with his or her obligations to
the famil"% the aggrieved spouse ma"
petition the court for receivership% for
judicial separation of propert" or for
authorit" to be the sole administrator
of the a'solute counit!% subject to
such precautionar" conditions as the
court ma" impose.
The obligations to the famil"
mentioned in the preceding paragraph
refer to marital% parental or propert"
relations.
A spouse is deemed to have
abandoned the other when her or she
has left the conjugal dwelling without
intention of returning. The spouse who
has left the conjugal dwelling for a
period of three months or has failed
within the same period to give an"
information as to his or her
whereabouts shall be pria .acie
presumed to have no intention of
returning to the conjugal dwelling.
Art. 129. ?pon the dissolution
of the con6u/al partners"ip re/ie% the
4 An inventor" shall be
prepared% listing separatel" all
Art. 102. ?pon dissolution of
the a'solute counit! re/ie% the
4 An inventor" shall be
prepared% listing separatel" all
the properties of the con6u/al
partners"ip and the e-clusive
' Amounts advanced b" the
con6u/al partners"ip in
pa"ment of personal debts and
obligations of either spouse
shall be credited to the
con6u/al partners"ip as an
asset thereof.
6 :ach spouse shall be
reimbursed for the use of his
or her e-clusive funds in the
ac.uisition of propert" or for
the value of his or her
e-clusive propert"% the
ownership of which has been
vested b" law in the con6u/al
partners"ip.
8 The debts and obligations of
the con6u/al partners"ip shall
be paid out of the con6u/al
assets. ,n case of insufficienc"
of said assets% the spouses
shall be solidaril" liable for the
unpaid balance with their
the properties of the a'solute
counit! and the e-clusive
' The debts and obligations of
the a'solute counit! shall
be paid out of its assets. ,n
case of insufficienc" of said
assets% the spouses shall be
solidaril" liable for the unpaid
balance with their separate
properties in accordance with
the provisions of the second
paragraph of Article E=.
6 0hatever remains of the
e-clusive properties of the
spouses shall thereafter be
delivered to each of them.
8 The net remainder of the
properties of the a'solute
counit! shall constitute its
net assets% which shall be
divided e.uall" between
husband and wife% unless a
different proportion or division
was agreed upon in the
marriage settlements% or
separate properties% in
accordance with the provisions
of paragraph 567 of Article
'6'.
= 0hatever remains of the
e-clusive properties of the
spouses shall thereafter be
delivered to each of them.
) ?nless the owner had been
indemnified from whatever
source% the loss or
unless there has been a
voluntar" waiver of such share
provided in this Code. Aor
purpose of computing the net
profits subject to forfeiture in
accordance with Articles =8%
2o. 567 and B8% 2o. 567% the
said profits shall be the
increase in value between the
market value of the
counit! propert! at the
time of the celebration of the
deterioration of movables
used for the benefit of the
famil"% belonging to either
spouse% even due to fortuitous
event% shall be paid to said
spouse from the con6u/al
.un+s% if an".
B The net remainder of the
con6u/al partners"ip
properties shall constitute the
profits% which shall be divided
marriage and the market
value at the time of its
dissolution.
= The presumptive legitimes of
the common children shall be
delivered upon partition% in
accordance with Article )'.
) ?nless otherwise agreed upon
b" the parties% in the partition
of the properties% the conjugal
e.uall" between husband and
wife% unless a different
proportion or division was
agreed upon in the marriage
settlements or unless there
has been a voluntar" waiver
or forfeiture of such share as
provided in this Code.
C The presumptive legitimes of
the common children shall be
delivered upon the partition in
dwelling and the lot on which
it is situated shall be
adjudicated to the spouse
with whom the majorit" of the
common children choose to
remain. Children below the
age of seven "ears are deemed
to have chosen the mother%
unless the court has decided
otherwise. ,n case there in no
such majorit"% the court shall
accordance with Article )'.
D ,n the partition of the
properties% the conjugal
dwelling and the lot on which
it is situated shall% unless
otherwise agreed upon b" the
parties% be adjudicated to the
spouse with whom the
majorit" of the common
children choose to remain.
Children below the age of
decide% taking into
consideration the best
interests of said children.
seven "ears are deemed to
have chosen the mother%
unless the court has decided
otherwise. ,n case there is no
such majorit"% the court shall
decide% taking into
consideration the best
interests of said children.
0 'rticles 1: and 10 are counterparts although there are
di$$erences.
Art. 130. ?pon the termination
of the marriage b" death% the con6u/al
partners"ip propert" shall be
li.uidated in the same proceeding for
the settlement of the estate of the
deceased.
,f no judicial settlement
proceeding is instituted% the surviving
spouse shall li.uidate the con6u/al
partners"ip propert! either judiciall"
or e-tra/judiciall" within si- months
from the death of the deceased
spouse. ,f upon the lapse of the si-/
month period no li.uidation is made%
an" disposition or encumbrance
involving the con6u/al partners"ip
propert! of the terminated marriage
shall be void.
@hould the surviving spouse
contract a subse.uent marriage
without compliance with the foregoing
re.uirements% a mandator" regime of
complete separation of propert" shall
govern the propert" relations of the
subse.uent marriage.
Art. 103. ?pon the termination
of the marriage b" death% the
counit! propert! shall be li.uidated
in the same proceeding for the
settlement of the estate of the
deceased.
,f no judicial settlement
proceeding is instituted% the surviving
spouse shall li.uidate the counit!
propert! either judiciall" or e-tra/
judiciall" within si- months from the
death of the deceased spouse. ,f upon
the lapse of the si- months period% no
li.uidation is made% an" disposition or
encumbrance involving the counit!
propert! of the terminated marriage
shall be void.
@hould the surviving spouse
contract a subse.uent marriage
without compliance with the foregoing
re.uirements% a mandator" regime of
complete separation of propert" shall
govern the propert" relations of the
subse.uent marriage.
Art. 131. 0henever the
li.uidation of the con6u/al partners"ip
properties of two or more marriages
contracted b" the same person before
the effectivit" of this Code is carried
out simultaneousl"% the respective
capital% fruits and income of each
partners"ip shall be determined upon
such proof as ma" be considered
according to the rules of evidence. ,n
case of doubt as to which partnership
the e-isting properties belong% the
same shall be divided between the
Art. 104. 0henever the
li.uidation of the counit!
properties of two or more marriages
contracted b" the same person before
the effectivit" of this Code is carried
out simultaneousl"% the respective
capital% fruits and income of each
counit! shall be determined upon
such proof as ma" be considered
according to the rules of evidence. ,n
case of doubt as to which communit"
the e-isting properties belong% the
same shall be divided between the
different partners"ips in proportion to
the capital and duration of each.
different counities in proportion to
the capital and duration of each.
0 /teps in ;i.uidation
0 9nventory o$ the CD6 assets.
1 -estitution o$ advances made to each spouse =i.e. 'rticle 1, B!
>
2 Dayment o$ debts to each spouse =i.e. 'rticle 10
>
! Dayment o$ obligations to !
rd
parties
% +elivery o$ e(clusive properties
0 Dayment o$ losses and deterioration o$ movables belonging to each
spouse
3 +elivery o$ presumptive legitimes
5 +ivision
D. 5eparation o. &ropert! o. t"e 5pouses an+ A+inistration o. *oon
&ropert! '! ,ne 5pouse Durin/ t"e 0arria/e
1 /eparation o$ the property o$ the spouses and the administration o$
common property by one spouse during the marriage can ta,e place in both
'CD and CD6.
' petition may be $iled $or the dissolution o$ the 'CD or the CD6 by<
0 Goth spouses+ voluntar" dissolution ='rticles 1!% and 1!3>
Art. 134. ,n the absence of an e-press declaration in the
marriage settlements% the separation of propert" between spouses
during the marriage shall not take place e-cept b" judicial order.
@uch judicial separation of propert" ma" either be voluntar" or for
sufficient cause.
_
Art. )%% '(. Aowever, the payment o$ personal debts contracted by either spouse be$ore the
marriage, that o$ $ines and indemnities imposed upon them, as well as the support o$ illegitimate
children o$ either spouse, may be en$orced against the partnership assets a$ter the responsibilities
enumerated in the preceding 'rticle have been covered, i$ the spouse who is bound should have no
e(clusive property or i$ it should be insu$$icient& but at the time o$ the li.uidation o$ the
partnership, such spouse shall be charged $or what has been paid $or the purpose above4
mentioned.
Art. )%0. The ownership o$ improvements, whether $or utility or adornment, made on the
separate property o$ the spouses at the e(pense o$ the partnership or through the acts or e$$orts
o$ either or both spouses shall pertain to the con*ugal partnership, or to the original owner4
spouse, sub*ect to the $ollowing rules<
#hen the cost o$ the improvement made by the con*ugal partnership and any resulting
increase in value are more than the value o$ the property at the time o$ the improvement, the
entire property o$ one o$ the spouses shall belong to the con*ugal partnership, sub*ect to
reimbursement o$ the value o$ the property o$ the owner4spouse at the time o$ the improvement&
otherwise, said property shall be retained in ownership by the owner4spouse, li,ewise sub*ect to
reimbursement o$ the cost o$ the improvement.
9n either case, the ownership o$ the entire property shall be vested upon the
reimbursement, which shall be made at the time o$ the li.uidation o$ the con*ugal partnership.
Art. 136. The spouses ma" jointl" file a verified petition with
the court for the voluntar" dissolution of the absolute communit"
or the conjugal partnership of gains% and for the separation of
their common properties.
All creditors of the absolute communit" or of the conjugal
partnership of gains% as well as the personal creditors of the
spouse% shall be listed in the petition and notified of the filing
thereof. The court shall take measures to protect the creditors and
other persons with pecuniar" interest.
0 There are no need $or causes in a voluntary dissolution.
1 #ne spouse+ petition for sufficient cause ='rticle 1!0>
Art. 135. An" of the following shall be considered sufficient
cause for judicial separation of propert"+
5'7 That the spouse of the petitioner has been sentenced to a
penalt" which carries with it civil interdiction3
567 That the spouse of the petitioner has been judiciall"
declared an absentee3
587 That loss of parental authorit" of the spouse of petitioner
has been decreed b" the court3
5=7 That the spouse of the petitioner has abandoned the latter
or failed to compl" with his or her obligations to the famil"
as provided for in Article '4'3
5)7 That the spouse granted the power of administration in the
marriage settlements has abused that power3 and
5B7 That at the time of the petition% the spouses have been
separated in fact for at least one "ear and reconciliation is
highl" improbable.
,n the cases provided for in 2umbers 5'7% 567 and 587% the
presentation of the final judgment against the guilt" or absent
spouse shall be enough basis for the grant of the decree of judicial
separation of propert".
1 Causes are re.uired $or a petition $or su$$icient cause.
2 'rticle 1!0 =!> must be ta,en in relation with 'rticles : =%>
and 'rticles !1
and !
.
`
Art. %%2. "nless subse.uently revived by a $inal *udgment, parental authority also terminates<
=%> "pon $inal *udgment o$ a competent court divesting the party concerned o$ parental
authority&
`
Art. %(). The court in an action $iled $or the purpose in a related case may also suspend
parental authority i$ the parent or the person e(ercising the same<
=1> Treats the child with e(cessive harshness or cruelty&
=> 6ives the child corrupting orders, counsel or e(ample&
=!> Compels the child to beg& or
=%> /ub*ects the child or allows him to be sub*ected to acts o$ lasciviousness.
3 The de$inition o$ abandonment in 'rticle 1!0 =%> is $ound in 'rticles 101 and 18
.
% "nder 'rticle 1!0 =3>, the spouse must wait $or 1 year. '$ter 1 year, the spouse
can $ile the petition $or su$$icient cause. 'lso reconciliation must be highly improbable.
0 The separation o$ the property o$ the spouses may not be done
e(tra*udicially even i$ the spouses agree. Court intervention is necessary.
3 '$ter the decree o$ separation, the parties can revert bac, to their original
regime by $iling a motion in court ='rticle 1%1>.
Art. 137. #nce the separation of propert" has been decreed% the
absolute communit" or the conjugal partnership of gains shall be
li.uidated in conformit" with this Code.
During the pendenc" of the proceedings for separation of propert"%
the absolute communit" or the conjugal partnership shall pa" for the
support of the spouses and their children.
Art. 138. After dissolution of the absolute communit" or of the
conjugal partnership% the provisions on complete separation of propert"
shall appl".
Art. 139. The petition for separation of propert" and the final
judgment granting the same shall be recorded in the proper local civil
registries and registries of propert".
Art. 140. The separation of propert" shall not prejudice the rights
previousl" ac.uired b" creditors.
Art. 141. The spouses ma"% in the same proceedings where
separation of propert" was decreed% file a motion in court for a decree
reviving the propert" regime that e-isted between them before the
separation of propert" in an" of the following instances+
5'7 0hen the civil interdiction terminates3
567 0hen the absentee spouse reappears3
587 0hen the court% being satisfied that the spouse granted the
power of administration in the marriage settlements will not
The grounds enumerated above are deemed to include cases which have resulted $rom
culpable negligence o$ the parent or the person e(ercising parental authority.
9$ the degree o$ seriousness so warrants, or the wel$are o$ the child so demands, the court
shall deprive the guilty party o$ parental authority or adopt such other measures as may be proper
under the circumstances.
The suspension or deprivation may be revo,ed and the parental authority revived in a case
$iled $or the purpose or in the same proceeding i$ the court $inds that the cause there$or has ceased
and will not be repeated.
Art. %(%. 9$ the person e(ercising parental authority has sub*ected the child or allowed him
to be sub*ected to se(ual abuse, such person shall be permanently deprived by the court o$ such
authority.
' spouse is deemed to have abandoned the other when her or she has le$t the con*ugal dwelling
without intention o$ returning. The spouse who has le$t the con*ugal dwelling $or a period o$ three
months or has $ailed within the same period to give any in$ormation as to his or her whereabouts
shall be prima $acie presumed to have no intention o$ returning to the con*ugal dwelling.
again abuse that power% authori$es the resumption of said
administration3
5=7 0hen the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the other3
5)7 0hen parental authorit" is judiciall" restored to the spouse
previousl" deprived thereof3
5B7 0hen the spouses who have separated in fact for at least one
"ear% reconcile and resume common life3 or
5C7 0hen after voluntar" dissolution of the absolute communit" of
propert" or conjugal partnership has been judiciall" decreed
upon the joint petition of the spouses% the" agree to the revival
of the former propert" regime. 2o voluntar" separation of
propert" ma" thereafter be granted.
The revival of the former propert" regime shall be governed b"
Article BC.
0 9$ separation was by voluntary dissolution, the parties may agree to
revert bac, to their original property regime. Aowever, i$ they do so, no
voluntary separation o$ property may be granted again.
Art. 142. The administration of all classes of e-clusive propert" of
either spouse ma" be transferred b" the court to the other spouse+
5'7 0hen one spouse becomes the guardian of the other3
567 0hen one spouse is judiciall" declared an absentee3
587 0hen one spouse is sentenced to a penalt" which carries with it
civil interdiction3 or
5=7 0hen one spouse becomes a fugitive from justice or is in hiding
as an accused in a criminal case.
,f the other spouse is not .ualified b" reason of incompetence%
conflict of interest% or an" other just cause% the court shall appoint a
suitable person to be the administrator.
1 This article enumerates the instances when the court may trans$er the
administration o$ all classes o$ e(clusive property o$ either spouse.
The $ollowing are the instances in when there can be a sole administrator
o$ the con*ugal property<
0 9$ such is stipulated in the marriage settlement ='rticle 5%
>
1 9$ the other spouse is unable to participate ='rticles :3, B and 1%,
B
C
>
Art. 1*. The property relationship between husband and wi$e shall be governed in the $ollowing
order<
=1> @y marriage settlements e(ecuted be$ore the marriage
*
9n the event that one spouse is incapacitated or otherwise unable to participate in the
administration o$ the common =con*ugal> properties, the other spouse may assume sole powers o$
administration. These powers do not include disposition or encumbrance without authority o$ the
court or the written consent o$ the other spouse. 9n the absence o$ such authority or consent, the
disposition or encumbrance shall be void. Aowever, the transaction shall be construed as a
Professor Ruben F. Balane Pa)e *4* of +,-
2 The court may order such in case o$ abandonment ='rticles 101 and
18
>
! 9$ the spouses agree to such an arrangement during marriage.
Aowever, in order to a$$ect !
rd
persons, such agreement must be
registered.
:. Re/ie o. 5eparation o. &ropert!
Art. 143. @hould the future spouses agree in the marriage
settlements that their propert" relations during marriage shall be
governed b" the regime of separation of propert"% the provisions of this
Chapter shall be suppletor".
Art. 144. @eparation of propert" ma" refer to present or future
propert" or both. ,t ma" be total or partial. ,n the latter case% the
propert" not agreed upon as separate shall pertain to the absolute
communit".
Art. 145. :ach spouse shall own% dispose of% possess% administer
and enjo" his or her own separate estate% without need of the consent of
the other. To each spouse shall belong all earnings from his or her
profession% business or industr" and all fruits% natural% industrial or civil%
due or received during the marriage from his or her separate propert".
Art. 146. Goth spouses shall bear the famil" e-penses in
proportion to their income% or% in case of insufficienc" or default thereof%
to the current market value of their separate properties.
The liabilities of the spouses to creditors for famil" e-penses shall%
however% be solidar".
A. &ropert! Re/ie o. 8nions 9it"out 0arria/e
'ccording to Dro$essor @alane, we should not use the term Ocommon4law
spousesP simply because we are not a common law country.
For 'rticles 1%5 and 1%8 to apply, the persons living together as husband and
wi$e must still be o$ di$$erent se(es.
Art. 147. 0hen a man and a woman who are capacitated to marr"
each other% live e-clusivel" with each other as husband and wife without
the benefit of marriage or under a void marriage% their wages and
salaries shall be owned b" them in e.ual shares and the propert"
ac.uired b" both of them through their work or industr" shall be
governed b" the rules on co/ownership.
continuing o$$er on the part o$ the consenting spouse and the third person, and may be
per$ected as a binding contract upon the acceptance by the other spouse or authori7ation
by the court be$ore the o$$er is withdrawn by either or both o$$erors.
_
9$ a spouse without *ust cause abandons the other or $ails to comply with his or her obligations to
the $amily, the aggrieved spouse may petition the court $or receivership, $or *udicial separation o$
property or $or authority to be the sole administrator o$ the absolute community =con*ugal
partnership>, sub*ect to such precautionary conditions as the court may impose.
Professor Ruben F. Balane Pa)e *4. of +,-
,n the absence of proof to the contrar"% properties ac.uired while
the" lived together shall be presumed to have been obtained b" their
joint efforts% work or industr"% and shall be owned b" them in e.ual
shares. Aor purposes of this Article% a part" who did not participate in the
ac.uisition b" the other part" of an" propert" shall be deemed to have
contributed jointl" in the ac.uisition thereof if the former;s efforts
consisted in the care and maintenance of the famil" and of the
household.
2either part" can encumber or dispose b" acts inter (i(os of his or
her share in the propert" ac.uired during cohabitation and owned in
common% without the consent of the other% until after the termination of
their cohabitation.
0hen onl" one of the parties to a void marriage is in good faith%
the share of the part" in bad faith in the co/ownership shall be forfeited
in favor of their common children. ,n case of default of or waiver b" an"
or all of the common children or their descendants% each vacant share
shall belong to the respective surviving descendants. ,n the absence of
descendants% such share shall belong to the innocent part". ,n all cases%
the forfeiture shall take place upon termination of the cohabitation.
0 -e.uisites o$ 'rticle 1%5<
1. The man and the woman must have capacity to marry each other.
. The man and the woman cohabit.
!. The cohabitation is e(clusive.
%. The man and the woman are not married to each other or are married to
each other but the marriage is void.
1 "nder 'rticle 1%5, the property regime between the man and the woman
would be special co4ownership.
The special co4ownership covers<
1. #ages and salaries o$ either the man and the woman
. Droperty ac.uired through the wor, or industry o$ either or both
0 9$ the partner did not ac.uire the property directly, that partnerGs
e$$orts must consist o$ the care and maintenance o$ the $amily and o$
the household in order $or such party to own 1K o$ the ac.uired
property.
1 9n 9axe8 vs. ;A, the /C said that the co4ownership arises even i$
the common4law wi$e does not wor, is not gain$ully employed. The
common4law wi$e is still a co4owner since she ran the household and
held the $amily purse even i$ she did not contribute thereto.
The di$$erence between this special co4ownership and the ordinary co4
ownership is in 'rticle 1%5, B!. 9n this special co4ownership, the $ollowing
cannot be done<
1. The co4ownership cannot be terminated until the cohabitation is also
terminated.
. The co4owner may not dispose or encumber his share in the property.
Professor Ruben F. Balane Pa)e *4+ of +,-
Art. 148. ,n cases of cohabitation not falling under the preceding
Article% onl" the properties ac.uired b" both of the parties through their
actual joint contribution of mone"% propert"% or industr" shall be owned
b" them in common in proportion to their respective contributions. ,n the
absence of proof to the contrar"% their contributions and corresponding
shares are presumed to be e.ual. The same rule and presumption shall
appl" to joint deposits of mone" and evidences of credit.
,f one of the parties is validl" married to another% his or her share
in the co/ownership shall accrue to the absolute communit" or conjugal
partnership e-isting in such valid marriage. ,f the part" who acted in bad
faith is not validl" married to another% his or her shall be forfeited in the
manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise appl" even if both
parties are in both faith.
0 'rticle 1%8 governs live4in partners who do not $all under 'rticle 1%5.
1 'rticle 1%8 will apply i$<
1. The live4in partners do not have the capacity to marry each other& or
0 1(ample o$ this is that there is an impediment o$ relationship, crime
or age.
. The cohabitation is not e(clusive.
1 The special co4ownership only covers property ac.uired by both parties
through their actual *oint contribution o$ money, property or industry. This is
very similar to an ordinary partnership.
9$ a live4in partner is legally married to someone else, the share o$ that
live4in partner will accrue to the property regime o$ his or her e(isting valid
marriage.
! 9$ the party who acted in bad $aith is not validly married to another his or
her share shall be $or$eited to their common children or descendants. 9n the
absence o$ descendants, such share shall belong to the innocent party.
=II.T7e Fa2il9
Art. 149. The famil"% being the foundation of the nation% is a basic social
institution which public polic" cherishes and protects. Conse.uentl"% famil"
relations are governed b" law and no custom% practice or agreement destructive
of the famil" shall be recogni$ed or given effect.
0 This is merely a declaration o$ policy.
Art. 150. Aamil" relations include those+
5'7 Getween husband and wife3
567 Getween parents and children3
587 Among brothers and sisters% whether of the full or half/blood.
1 This is an e(clusive enumeration o$ $amily members.
Professor Ruben F. Balane Pa)e *4/ of +,-
Art. 151. 2o suit between members of the same famil" shall prosper
unless it should appear from the verified complaint or petition that earnest
efforts toward a compromise have been made% but that the same have failed. ,f
it is shown that no such efforts were in fact made% the same case must be
dismissed.
This rules shall not appl" to cases which ma" not be the subject of
compromise under the Civil Code.
General *ule+ For a suit between members o$ the same $amily shall prosper
the $ollowing are re.uired<
1. 1arnest e$$orts towards a compromise have been made
. /uch e$$orts have $ailed
!. /uch earnest e$$orts and the $act o$ $ailure must be alleged
! #ithout these !, the case will be dismissed.
% Exception: Cases which cannot be compromised. ='rticle 0!0>
Art. 2035. 2o compromise upon the following .uestions shall be valid+
5'7 The civil status of persons3
567 The validit" of a marriage or a legal separation3
587 An" ground for legal separation3
5=7 Auture support3
5)7 The jurisdiction of courts3
5B7 Auture legitime.
0 9n :a8on vs. :a8on, the /C said that 'rticle 101 does not apply in the case o$
in4laws.
1 9n the case o$ 9ag5aleta, the /C said that 'rticle 101 does not apply i$ non4
$amily members are to be sued as well.
=III. Fa2il9 Ho2e
Art. 152. The famil" home% constituted jointl" b" the husband and the
wife or b" an unmarried head of a famil"% is the dwelling house where the" and
their famil" reside% and the land on which it is situated.
Art. 153. The famil" home is deemed constituted on a house and lot from
the time it is occupied as a famil" residence. Arom the time of its constitution
and so long as an" of its beneficiaries actuall" resides therein% the famil" home
continues to be such and is e-empt from e-ecution% forced sale or attachment
e-cept as hereinafter provided and to the e-tent of the value allowed b" law.
Art. 154. The beneficiaries of a famil" home are+
5'7 The husband and wife% or an unmarried person who is the head of a
famil"3 and
567 Their parents% ascendants% descendants% brothers and sisters% whether
the relationship be legitimate or illegitimate% who are living in the
famil" home and who depend upon the head of the famil" for legal
support.
Art. 155. The famil" home shall be e-empt from e-ecution% forced sale or
attachment e-cept+
5'7 Aor nonpa"ment of ta-es3
567 Aor debts incurred prior to the constitution of the famil" home3
587 Aor debts secured b" mortgages on the premises before or after such
constitution3 and
5=7 Aor debts due to laborers% mechanics% architects% builders% materialmen
and others who have rendered service or furnished material for the
construction of the building.
Art. 156. The famil" home must be part of the properties of the absolute
communit" or the conjugal partnership% or of the e-clusive properties of either
spouse with the latter;s consent. ,t ma" also be constituted b" an unmarried
head of a famil" on his or her own propert".
2evertheless% propert" that is the subject of a conditional sale on
installments where ownership is reserved b" the vendor onl" to guarantee
pa"ment of the purchase price ma" be constituted as a famil" home.
The purpose o$ these provisions is to remove $rom the reach o$ creditors the
residence in which the $amily members dwell ? social *ustice underpinnings
The biggest change in the Family Code with regard to the $amily home is that the
constitution o$ the $amily home shall be automatic once it is used as the $amily
dwelling.
General *ule+ The $amily home is e(empt $rom levy, attachment and e(ecution.
Exceptions:
1. Non4payment o$ ta(es
. For debts incurred prior to the constitution o$ the $amily home
0 9$ it were otherwise, then the antecedent creditors would be pre*udiced.
!. For debts secured by mortgages on the premises be$ore or a$ter the constitution
%. For debts due to laborers, mechanics, architects, builders, materialmen and
others who have rendered service or $urnished material $or the construction o$ the
building.
1 /ocial *ustice
Art. 157. The actual value of the famil" home shall not e-ceed% at the
time of its constitution% the amount of the three hundred thousand pesos in
urban areas% and two hundred thousand pesos in rural areas% or such amounts
as ma" hereafter be fi-ed b" law.
,n an" event% if the value of the currenc" changes after the adoption of
this Code% the value most favorable for the constitution of a famil" home shall
be the basis of evaluation.
Aor purposes of this Article% urban areas are deemed to include chartered
cities and municipalities whose annual income at least e.uals that legall"
re.uired for chartered cities. All others are deemed to be rural areas.
The value provided $or 'rticle 105 is unrealistic. 'ccording to Dro$essor @alane,
the *udge should be given discretion and ad*ust it accordingly.
! There is a limit in terms o$ value provided $or by the law. 2therwise, debtors can
evade creditors by building very lu(urious homes.
Art. 158. The famil" home ma" be sold% alienated% donated% assigned or
encumbered b" the owner or owners thereof with the written consent of the
person constituting the same% the latter;s spouse% and a majorit" of the
beneficiaries of legal age. ,n case of conflict% the court shall decide.
0 This is a very dangerous article. "nder this article, the $amily home may not
be sold, alienated, donated, assigned or encumbered without the consent o$ the person
constituting the same, the latterGs spouse and a ma*ority o$ the bene$iciaries =see 'rticle
10%> who are o$ legal age. There$ore, a ban, must get the consent o$ ma*ority o$ the
bene$iciaries be$ore the $amily home may be mortgaged. Aow is the ban, supposed to
,now who the bene$iciaries are) Aow is the ban, supposed to ,now i$ indeed the same is
the $amily home) Finally, how is the ban, supposed to ,now how many o$ the
bene$iciaries are o$ legal age) The title does not give you these pieces o$ in$ormation.
'ccording to Dro$essor @alane, creditors must be a$$orded some protection. This is also
disadvantageous to the owner since he may not sell the $amily home i$ the bene$iciaries
disagree.
Art. 159. The famil" home shall continue despite the death of one or both
spouses or of the unmarried head of the famil" for a period of ten "ears or for
as long as there is a minor beneficiar"% and the heirs cannot partition the same
unless the court finds compelling reasons therefor. This rule shall appl"
regardless of whoever owns the propert" or constituted the famil" home.
0 The $amily home shall continue despite the death o$ one or both spouses or o$ the
unmarried head o$ the $amily<
1. 's long as there is a minor bene$iciary still living in the home
. 1ven i$ there is no minor bene$iciary, $or a period o$ 10 years
1 9n this case, the heirs cannot partition the same unless the court $inds
compelling reasons. This rule shall apply regardless o$ whoever owns the
property or constituted the $amily home.
Art. 160. 0hen a creditor whose claims is not among those mentioned in
Article ')) obtains a judgment in his favor% and he has reasonable grounds to
believe that the famil" home is actuall" worth more than the ma-imum amount
fi-ed in Article ')C% he ma" appl" to the court which rendered the judgment for
an order directing the sale of the propert" under e-ecution. The court shall so
order if it finds that the actual value of the famil" home e-ceeds the ma-imum
amount allowed b" law as of the time of its constitution. ,f the increased actual
value e-ceeds the ma-imum allowed in Article ')C and results from subse.uent
voluntar" improvements introduced b" the person or persons constituting the
Professor Ruben F. Balane Pa)e *4, of +,-
famil" home% b" the owner or owners of the propert"% or b" an" of the
beneficiaries% the same rule and procedure shall appl".
At the e-ecution sale% no bid below the value allowed for a famil" home
shall be considered. The proceeds shall be applied first to the amount
mentioned in Article ')C% and then to the liabilities under the judgment and the
costs. The e-cess% if an"% shall be delivered to the judgment debtor.
Art. 161. Aor purposes of availing of the benefits of a famil" home as
provided for in this Chapter% a person ma" constitute% or be the beneficiar" of%
onl" one famil" home.
Art. 162. The provisions in this Chapter shall also govern e-isting famil"
residences insofar as said provisions are applicable.
=I!. Paternit9 an& Filiation
Daternity means the relationship or status o$ a person with respect to his or her
child =paternity includes maternity>.
! Filiation means the status o$ a person with respect to his or her parents.
% Daternity and $iliation implies relationship.
Art. 163. The filiation of children ma" be b" nature or b" adoption.
2atural filiation ma" be legitimate or illegitimate.
0 types o$ $iliation
1. Natural
a. ;egitimate
i. ;egitimate proper ='rticle 13%>
ii. ;egitimated ='rticles 135415>
0 9llegitimate ='rticles 130, 150, 153>
. 'doption =-.'. No. 800 =O+omestic 'doption 'ctP> and -.'. No. 80%! =O9nter4
country 'doption 'ctP>>
3 ! Types o$ ;egitimate Children
1. ;egitimate proper
. ;egitimated
!. 'dopted
5 Types o$ 9llegitimate Children
0 Children o$ parents dis.uali$ied to marry each other at conception and
marriage.
1 Children o$ parents .uali$ied to marry each other
8 2nly this ,ind can be legitimated by subse.uent marriage.
Art. 164. Children conceived or born during the marriage of the parents
are legitimate.
Professor Ruben F. Balane Pa)e *4- of +,-
Children conceived as a result of artificial insemination of the wife with
the sperm of the husband or that of a donor or both are likewise legitimate
children of the husband and his wife% provided% that both of them authori$ed or
ratified such insemination in a written instrument e-ecuted and signed b" them
before the birth of the child. The instrument shall be recorded in the civil
registr" together with the birth certificate of the child.
: ' legitimate child is one conceived 2- born during the marriage o$ the
parents.
10 'n innovation in the Family Code is the rule on arti$icial insemination.
11 ! #ays o$ 'rti$icial 9nsemination
0 Aomologous arti$icial insemination
0 The husbandGs sperm is used. This is resorted to when the husband is
impotent but not sterile.
1 Aeterologous arti$icial insemination
1 The sperm o$ another man is used. This is resorted to when the husband
has a low sperm count.
Combined arti$icial insemination
' combination o$ the husband and another manGs sperm is used. This is
resorted to $or psychological reasons. The husband would not ,now which
sperm $ertili7ed the egg unless a +N' test is conducted. 9$ the husband ,new
that it was not his sperm, it may a$$ect martial relations.
! #hat i$ the ovum o$ another woman is used) This is ,nown as in vitro
$ertili7ation. This in not included in the coverage o$ the Family Code. ' conservative
*udge will there$ore say that such child is illegitimate.
% -e.uisites o$ a Valid and ;egal 'rti$icial 9nsemination
1. 'uthori7ation or rati$ication o$ the insemination by both husband and wi$e
0 'uthori7ation occurs be$ore the act. -ati$ication occurs a$ter the act.
. The authori7ation or rati$ication must be in writing
!. The instrument must be e(ecuted and signed be$ore the childGs birth by both the
husband and the wi$e
1 #hat i$ this is done a$ter the childGs birth) The law is silent.
Art. 165. Children conceived and born outside a valid marriage are
illegitimate% unless otherwise provided in this Code.
Art. 54. Children conceived or born before the judgment of annulment or
absolute nullit" of the marriage under Article 8B has become final and
e-ecutor" shall be considered legitimate. Children conceived or born of the
subse.uent marriage under Article )8 shall likewise be legitimate.
General *ule+ 9$ the child is conceived 'N+ born outside a valid marriage, the
child is illegitimate.
3 Exceptions:
1. Children o$ voidable marriages
. Children o$ a void marriage in instances
0 Children conceived o$ a marriage void under 'rticle !3
1 Children conceived o$ a marriage under 'rticle 0!
Art. 166. !egitimac" of a child ma" be impugned onl" on the following
grounds+
0 The presumption o$ legitimacy is one o$ the strongest presumptions ,nown in
law. 9t is a .uasi4conclusive presumption since such presumption can only be rebutted
by certain instances in 'rticle 133.

5'7 That it was ph"sicall" impossible for the husband to have se-ual
intercourse with his wife within the first '64 da"s of the 844 da"s which
immediatel" preceded the birth of the child because of+
5a7 the ph"sical incapacit" of the husband to have se-ual intercourse
with his wife3
5b7 the fact that the husband and wife were living separatel" in such a
wa" that se-ual intercourse was not possible3 or
5c7 serious illness of the husband% which absolutel" prevented se-ual
intercourse3
1 There must be a physical impossibility $or the husband and the wi$e to have
se(ual intercourse $or the 1
st
10 days preceding the childGs birth.
9$ it ta,es !00 days $or a child to be born, $or a child to
be illegitimate, it must be shown the physical impossibility o$ the husband and wi$e to
have se( within the 1
st
10 days.
! The physical impossibility must be $or the 1NT9-1 10
day period.
% These periods are not arbitrary since scientists ,now that
in order $or a child to survive, there must be a 3 month minimum period o$ gestation.
0 Dhysical impossibility may be shown in ! ways
1. 9mpotence o$ the husband
. /pouses living separately
0 9$ the husband is living in Ea,ati, and the wi$e is living in Q.C., this is not
what is contemplated by 'rticle 133 =1>=b>.
1 9$ the husband is living in Toronto, and the wi$e is living in Eanila, then it
$alls under 'rticle 133 =1>=b>.
9$ one o$ the spouses is in *ail, there is still the possibility o$ se( since visits
are allowed.
!. /erious illness which absolutely prevented se(
0 The illness must be such that se( is impossible =i.e. comatose>. T@ is not
an illness which causes an impossibility to have se( (Andal vs. 9acaraig).
,.7E: 9n these ! instances, it is presumed that there is no arti$icial insemination.
'lso it is incumbent on the one impugning legitimacy that there could be no access.
Professor Ruben F. Balane Pa)e **4 of +,-
567 That it is proved that for biological or other scientific reasons% the child
could not have been that of the husband% e-cept in the instance
provided in the second paragraph of Article 'B=3 or
0 'rticle 133 => assumes that there is no physical
impossibility. 2therwise, it would $all under 'rticle 133 =1>.
1 +N' tests can show whether or not the husband is the
biological $ather o$ the child. 9n Lim vs. ;A, Mustice -omero in a o5iter dictum said that
+N' tests are not yet accepted here.
587 That in case of children conceived through artificial insemination% the
written authori$ation or ratification of either parent was obtained
through mistake% fraud% violence% intimidation% or undue influence.
0 9n case o$ arti$icial insemination, the written
authori7ation or rati$ication was procured by mista,e, $raud, violence, intimidation, or
undue in$luence.
Art. 167. The child shall be considered legitimate although the mother
ma" have declared against its legitimac" or ma" have been sentenced as an
adulteress.
1 +espite the declaration o$ the mother that the child is illegitimate or that she has
been declared an adulteress, the presumption o$ legitimacy still stands. This is so
because in many instances, the woman wouldnGt ,now who the $ather o$ the child is i$
she had multiple partners. 'lso, there are instances wherein a woman whose
marriage has turned sour will declare such in order to hurt the pride o$ her husband.
2 &resuptions:
1. Validity o$ the marriage
. That the child is o$ the motherGs =$actual>
!. That the child is that o$ the husband
%. That the child was conceived during the marriage
0 Nos. ! and % are hard to prove thatGs why presumptions come in.
Art. 168. ,f the marriage is terminated and the mother contracted
another marriage within three hundred da"s after such termination of the
former marriage% these rules shall govern in the absence of proof to the
contrar"+
5'7 A child born before one hundred eight" da"s after the solemni$ation of
the subse.uent marriage is considered to have been conceived during
the former marriage% provided it be born within three hundred da"s
after the termination of the former marriage3
567 A child born after one hundred eight" da"s following the celebration of
the subse.uent marriage is considered to have been conceived during
such marriage% even though it be born within the three hundred da"s
after the termination of the former marriage.
Professor Ruben F. Balane Pa)e *** of +,-
Termination o$ 1
st

marriage
Celebration o$
nd
marriage
180 days a$ter
celebration o$
nd

marriage
!00 days a$ter
termination o$ 1
st

marriage
Child o$ the 1
st

marriage
Child o$ the
nd

marriage
1 For the child to be considered the child o$ the 1
st
husband, the $ollowing re.uisites
must concur<
0 The mother must have married again within !00 days $rom the termination
o$ her $irst marriage
1 The child was born within the same !00 days a$ter the termination o$ the
$ormer marriage o$ its mother
The child was born be$ore 180 days a$ter the solemni7ation o$ its motherGs
nd
marriage
0 For the child to be considered the child o$ the
nd
husband, the $ollowing re.uisites
must concur<
0 The mother must have married again within !00 days $rom the termination
o$ the marriage
1 The child was born within the same !00 days a$ter the termination o$ its
motherGs $irst marriage
! The child was born a$ter 180 days $ollowing the solemni7ation o$ its
motherGs second marriage
0 The $irst marriage must be terminated either by death or annulment. Can the
marriage re$er to a marriage under 'rticle %) No, since the terms o$ this 'rticle
provide that the $irst marriage is terminated. "nder 'rticle %, it is the
nd
marriage
which is terminated.
Art. 170. The action to impugn the legitimac" of the child shall be
brought within one "ear from the knowledge of the birth or its recording in the
civil register% if the husband or% in a proper case% an" of his heirs% should reside
in the cit" or municipalit" where the birth took place or was recorded.
,f the husband or% in his default% all of his heirs do not reside at the place
of birth as defined in the first paragraph or where it was recorded% the period
shall be two "ears if the" should reside in the Philippines3 and three "ears if
abroad. ,f the birth of the child has been concealed from or was unknown to the
husband or his heirs% the period shall be counted from the discover" or
knowledge of the birth of the child or of the fact of registration of said birth%
whichever is earlier.
Art. 171. The heirs of the husband ma" impugn the filiation of the child
within the period prescribed in the preceding article onl" in the following cases+
5'7 ,f the husband should died before the e-piration of the period fi-ed for
bringing his action3
567 ,f he should die after the filing of the complaint without having desisted
therefrom3 or
587 ,f the child was born after the death of the husband.
General *ule+ 2nly the husband can impugn the legitimacy o$ the child.
Professor Ruben F. Balane Pa)e **. of +,-
Exception: The heirs o$ the husband in the $ollowing cases
1. 9$ the husband should die be$ore the e(piration o$ the period $i(ed $or bringing his
action
. 9$ he should die a$ter the $iling o$ the complaint without having desisted there$rom
or
!. 9$ the child was born a$ter the death o$ the husband.
The husband or the heirs has the $ollowing years to impugn the legitimacy o$ the
child<
1. 1 year $rom ,nowledge o$ the birth or its recording in the civil register, i$ the
husband or in a proper case, any o$ his heirs, should reside in the city or
municipality where the birth too, place or recorded.
. years $rom ,nowledge o$ the birth or its recording in the civil register, i$ the
husband or in a proper case, any o$ his heirs, +2 N2T reside in the city or
municipality where the birth too, place or recorded.
!. ! years $rom ,nowledge o$ the birth or its recording in the civil register, i$ the
husband or in a proper case, any o$ his heirs, live abroad
,.7E: 9$ the birth o$ the child has been concealed or was un,nown to the husband or
his heirs, the period shall be counted $rom the discovery or ,nowledge o$ the birth o$
the child or o$ the $act o$ the registration o$ the birth, whichever is earlier.
'. &roo. o. )iliation
Art. 172. The filiation of legitimate children is established b" an"
of the following+
5'7 The record of birth appearing in the civil register or a final
judgment3 or
567 An admission of legitimate filiation in a public document or a
private handwritten instrument and signed b" the parent
concerned.
,n the absence of the foregoing evidence% the legitimate filiation
shall be proved b"+
5'7 The open and continuous possession of the status of a legitimate
child3 or
567 An" other means allowed b" the *ules of Court and special laws.
Droo$ o$ $iliation o$ a legitimate child is very liberal<
0 -ecord o$ birth
1 Final *udgment
'dmission in a public document
! 'dmission in a private handwritten instrument and signed by the
said parents
% 2pen and continuous possession o$ the status o$ a legitimate child
Professor Ruben F. Balane Pa)e **+ of +,-
0 'ny other means allowed by the -ules o$ Court =i.e. baptismal
certi$icate, $amily bibles, common reputation respecting pedigree,
testimony o$ witnesses, etc.>
Droo$ o$ $iliation is very liberal because the law $avors legitimacy. 9t is better
to treat an illegitimate child as legitimate then to commit an error and treat a
legitimate child as an illegitimate.
Art. 173. The action to claim legitimac" ma" be brought b" the
child during his or her lifetime and shall be transmitted to the heirs
should the child die during minorit" or in a state of insanit". ,n these
cases% the heirs shall have a period of five "ears within which to institute
the action.
The right o$ the child to bring an action to claim legitimacy does not prescribe
as long as he lives.
The child may bring such action even a$ter the li$etime o$ his parents.
The right to $ile an action to claim legitimacy may be transmitted by the child
to the heirs should the child die during minority or die in a state o$ insanity or
die during the pendency o$ the case. 9$ the right is transmitted by the child to
the heirs, then the heirs will have 0 years to bring the action.
6. 3lle/itiate *"il+ren
The rules in the Family Code were meant to liberali7e the rules o$ the NCC on
illegitimacy. 9n the NCC, recognition was necessary in order to a$$ord rights to
the illegitimate child. "nder the Family Code, there is no need $or recognition.
Now, proo$ o$ illegitimacy is su$$icient.
The rule now is that the manner in which children may prove their legitimacy
is also the same manner in which illegitimate children may prove their $iliation
='rticle 150>.
The child may prove his illegitimate $iliation by bringing an action to claim
illegitimate $iliation. The child has until his li$etime to $ile such action unless
the action is based on the open and continuous possession by the child o$ the
status o$ an illegitimate child, or on other evidence allowed by the -ules o$
Court. 9$ the action is based on the open and continuous possession by the
child o$ the status o$ an illegitimate child, or on other evidence allowed by the
-ules o$ Court, then the action must be brought within the li$etime o$ the
alleged parent.
Art. 176. ,llegitimate children shall use the surname and shall be
under the parental authorit" of their mother% and shall be entitled to
support in conformit" with this Code. The legitime of each illegitimate
child shall consist of one/half of the legitime of a legitimate child. :-cept
for this modification% all other provisions in the Civil Code governing
successional rights shall remain in force.
The rights o$ illegitimate children are not the same as the rights o$ a legitimate
child.
Professor Ruben F. Balane Pa)e **/ of +,-
'n illegitimate child shall use the surname o$ the mother. 1ven i$ a couple,
wherein the man and the woman are capacitated to marry each other but are
not married, agree that the child shall use surname o$ the man, this is not
allowed. 'll illegitimate children shall use the mothers surname.
Darental authority resides in the mother alone.
The illegitimate child has the right o$ support. The order o$ pre$erence $or
legitimate and illegitimate children are not the same however.
'n illegitimate child is entitled to only Z he share o$ a legitimate child.
8. :e/itiation
Art. 177. #nl" children conceived and born outside of wedlock of
parents who% at the time of the conception of the former% were not
dis.ualified b" an" impediment to marr" each other ma" be legitimated.
Art. 178. !egitimation shall take place b" a subse.uent valid
marriage between parents. The annulment of a voidable marriage shall
not affect the legitimation.
-e.uisites o$ ;egitimation<
1. The child is illegitimate ='rticle 155>.
. The parents at the time o$ the childs conception are not dis.uali$ied $rom
marrying each other ='rticle 155>.
9$ the parents o$ the child are 13 and 10 years old at the latters
conception, the child may not be legitimated.
!. There is a valid marriage subse.uent to the childs birth ='rticle 158>
9$ the marriage occurs be$ore the childs birth, then the child is
legitimate ='rticle 13%
>.
#hat i$ the marriage which ta,es place a$ter the childs birth is a
voidable marriage) The child would still be legitimated. ' voidable
marriage is still a valid one until it is declared void.
Art. 179. !egitimated children shall enjo" the same rights as
legitimate children.
Art. 180. The effects of legitimation shall retroact to the time of
the child;s birth.
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants.
Art. 182. !egitimation ma" be impugned onl" b" those who are
prejudiced in their rights% within five "ears from the time their cause of
action accrues.
=. Doestic A+option Act 1Repu'lic Act #o. 85522
_
Art. )&* '). Children conceived or born during the marriage o$ the parents are legitimate.
The $ollowing are the important provisions<
a. LC =which superseded 'rticles 18!4183 o$ the Family Code>
SECTION G. Who May Adopt. The following may adopt:
(a) A*, F)$)0)*- c)%)3e* -' $e.$ .e4 )* 0-""e"")-* -' '1$$ c)5)$ c0c)%, *+
$e.$ ().#%"4 -' .--+ /-($ c#(c%e(4 #" *-% 2ee* c-*5)c%e+ -' *,
c()/e )*5-$5)*. /-($ %1(0)%1+e4 e/-%)-*$$, *+ 0",c#-$-.)c$$,
c02$e -' c()*. '-( c#)$+(e*4 % $e"% ");%ee* A18C ,e(" -$+e( %#* %#e
+-0%ee4 *+ !#- )" )* 0-")%)-* %- "100-(% *+ c(e '-( #)"J#e(
c#)$+(e* )* &ee0)*. !)%# %#e /e*" -' %#e '/)$,. T#e (eI1)(e/e*% -'
");%ee* A18C ,e( +)''e(e*ce 2e%!ee* %#e .e -' %#e +-0%e( *+ +-0%ee
/, 2e !)5e+ !#e* %#e +-0%e( )" %#e 2)-$-.)c$ 0(e*% -' %#e +-0%ee4
-( )" %#e "0-1"e -' %#e +-0%eeK" 0(e*%>
(b) A*, $)e* 0-""e"")*. %#e "/e I1$)')c%)-*" " 2-5e "%%e+ '-(
F)$)0)*- *%)-*$"@ Provided, That his/her country has
diplomatic relations with the Republic of the
Philippines, that he/she has been living in the
Philippines for at least three (3 continuous years prior
to the filing of the application for adoption and
maintains such residence until the adoption decree is
entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to
adopt in his/her country, and that his/her government
allows the adoptee to enter his/her country as his/her
adopted son/daughter: Provided, Further, That the
re!uirements on residency and certification of the
alien"s !ualification to adopt in his/her country may be
waived for the following:
0 '-(/e( F)$)0)*- c)%)3e* !#- "ee&" %- +-0% (e$%)5e !)%#)* %#e
'-1(%# AD%#C +e.(ee -' c-*"*.1)*)%, -( '')*)%,> -(
1 -*e !#- "ee&" %- +-0% %#e $e.)%)/%e "-*J+1.#%e( -' #)"J#e(
F)$)0)*- "0-1"e> -(
2 -*e !#- )" /(()e+ %- F)$)0)*- c)%)3e* *+ "ee&" %- +-0% B-)*%$,
!)%# #)"J#e( "0-1"e (e$%)5e !)%#)* %#e '-1(%# AD%#C +e.(ee -'
c-*"*.1)*)%, -( '')*)%, -' %#e F)$)0)*- "0-1"e> -(
AcC T#e .1(+)* !)%# (e"0ec% %- %#e !(+ '%e( %#e %e(/)*%)-* -' %#e
.1(+)*"#)0 *+ c$e(*ce -' #)"J#e( ')**c)$ cc-1*%2)$)%)e".
H1"2*+ *+ !)'e "#$$ B-)*%$, +-0%4 e;ce0% )* %#e '-$$-!)*. c"e"@
0 )' -*e "0-1"e "ee&" %- +-0% %#e $e.)%)/%e "-*J+1.#%e( -' %#e -%#e(> -(
1 )' -*e "0-1"e "ee&" %- +-0% #)"J#e( -!* )$$e.)%)/%e "-*J+1.#%e(@
Provided, However, that the other spouse has signified
his/her consent thereto# or
2 )' %#e "0-1"e" (e $e.$$, "e0(%e+ '(-/ ec# -%#e(.
I* c"e #1"2*+ *+ !)'e B-)*%$, +-0%4 -( -*e "0-1"e +-0%" %#e
)$$e.)%)/%e "-*J+1.#%e( -' %#e -%#e(4 B-)*% 0(e*%$ 1%#-()%, "#$$ 2e e;e(c)"e+
2, %#e "0-1"e".
b. LD =which superseded 'rticle 185 o$ the Family Code>
SECTION 7. Who May Be Adopted. The following may be
adopted:
0 A*, 0e("-* 2e$-! e).#%ee* A17C ,e(" -' .e !#- #" 2ee*
+/)*)"%(%)5e$, -( B1+)c)$$, +ec$(e+ 5)$2$e '-( +-0%)-*>
1 T#e $e.)%)/%e "-*J+1.#%e( -' -*e "0-1"e 2, %#e -%#e( "0-1"e>
2 A* )$$e.)%)/%e "-*J+1.#%e( 2, I1$)')e+ +-0%e( %- )/0(-5e
#)"J#e( "%%1" %- %#% -' $e.)%)/c,>
3 A 0e("-* -' $e.$ .e )'4 0()-( %- %#e +-0%)-*4 ")+ 0e("-* #"
2ee* c-*")"%e*%$, c-*")+e(e+ *+ %(e%e+ 2, %#e +-0%e(A"C " #)"J#e(
-!* c#)$+ ")*ce /)*-()%,>
4 A c#)$+ !#-"e +-0%)-* #" 2ee* 0(e5)-1"$, (e"c)*+e+> -(
A c#)$+ !#-"e 2)-$-.)c$ -( +-0%)5e 0(e*%A"C #" +)e+@ Provided,
That no proceedings shall be initiated within si$ (% months
from the time of death of said parent(s&
c. LE =which superseded 'rticle 188 o$ the Family Code>
SECTION H. Whose Consent is Necessary to the Adoption&
'fter being properly counseled and informed of his/her right to
give or withhold his/her approval of the adoption, the written
consent of the following to the adoption is hereby re!uired:
AC T#e +-0%ee4 )' %e* A10C ,e(" -' .e -( -5e(>
A2C T#e 2)-$-.)c$ 0(e*%A"C -' %#e c#)$+4 )' &*-!*4 -( %#e $e.$ .1(+)*4 -(
%#e 0(-0e( .-5e(*/e*% )*"%(1/e*%$)%, !#)c# #" $e.$ c1"%-+, -' %#e
c#)$+>
AcC T#e $e.)%)/%e *+ +-0%e+ "-*"J+1.#%e("4 %e* A10C ,e(" -' .e -( -5e(4
-' %#e +-0%e(A"C *+ +-0%ee4 )' *,>
A+C T#e )$$e.)%)/%e "-*"J+1.#%e("4 %e* A10C ,e(" -' .e -( -5e(4 -' %#e
+-0%e( )' $)5)*. !)%# ")+ +-0%e( *+ %#e $%%e(K" "0-1"e4 )' *,> *+
AeC T#e "0-1"e4 )' *,4 -' %#e 0e("-* +-0%)*. -( %- 2e +-0%e+.
d. LL'B/'D =which superseded 'rt. 18: and 1:0 o$ the Family Code>
SECTION 18. Parental Authority. ($cept in cases where
the biological parent is the spouse of the adopter, all legal
ties between the biological parent(s and the adoptee shall be
severed and the same shall then be vested on the adopter(s&

SECTION 1G. @egitimacy% B T#e +-0%ee "#$$ 2e c-*")+e(e+ %#e
$e.)%)/%e "-*J+1.#%e( -' %#e +-0%e(A"C '-( $$ )*%e*%" *+ 01(0-"e" *+ "
"1c# )" e*%)%$e+ %- $$ %#e ().#%" *+ -2$).%)-*" 0(-5)+e+ 2, $! %- $e.)%)/%e
"-*"J+1.#%e(" 2-(* %- %#e/ !)%#-1% +)"c()/)*%)-* -' *, &)*+. T- %#)" e*+4
%#e +-0%ee )" e*%)%$e+ %- $-5e4 .1)+*ce4 *+ "100-(% )* &ee0)*. !)%# %#e /e*"
-' %#e '/)$,.
Professor Ruben F. Balane Pa)e **, of +,-
SECTION 17. Succession. )n legal and intestate
succession, the adopter(s and the adoptee shall have
reciprocal rights of succession without distinction from
legitimate filiation& *owever, if the adoptee and his/her
biological parent(s had left a will, the law on testamentary
succession shall govern&
e. L'E =which superseded 'rt. 1:1 and 1: o$ the Family Code>
SECTION 1H. Grounds or !escission o Adoption. +pon
petition of the adoptee, with the assistance of the ,epartment
if a minor or if over eighteen (-. years of age but is
incapacitated, as guardian/counsel, the adoption may be
rescinded on any of the following grounds committed by the
adopter(s: (a repeated physical and verbal maltreatment by
the adopter(s despite having undergone counseling# (b attempt
on the life of the adoptee# (c se$ual assault or violence# or
(d abandonment and failure to comply with parental
obligations&
A+-0%)-*4 2e)*. )* %#e 2e"% )*%e(e"% -' %#e c#)$+4 "#$$ *-% 2e "12Bec% %-
(e"c)"")-* 2, %#e +-0%e(A"C. H-!e5e(4 %#e +-0%e(A"C /, +)")*#e()% %#e
+-0%ee '-( c1"e" 0(-5)+e+ )* A(%)c$e H1H -' %#e C)5)$ C-+e.
f. L64 =which superseded 'rt. 1:! o$ the Family Code>
/(0T)12 34& "ects o !escission. )f the petition is
granted, the parental authority of the adoptee"s biological
parent(s, if 5nown, or the legal custody of the ,epartment
shall be restored if the adoptee is still a minor or
incapacitated& The reciprocal rights and obligations of the
adopter(s and the adoptee to each other shall be e$tinguished&
T#e c-1(% "#$$ -(+e( %#e C)5)$ Re.)"%(( %- c*ce$ %#e /e*+e+
ce(%)')c%e -' 2)(%# -' %#e +-0%ee *+ (e"%-(e #)"J#e( -().)*$ 2)(%# ce(%)')c%e.
S1cce"")-* ().#%" "#$$ (e5e(% %- )%" "%%1" 0()-( %- +-0%)-*4 21% -*$, "
-' %#e +%e -' B1+./e*% -' B1+)c)$ (e"c)"")-*. Ve"%e+ ().#%" cI1)(e+ 0()-( %-
B1+)c)$ (e"c)"")-* "#$$ 2e (e"0ec%e+.
A$$ %#e '-(e.-)*. e''ec%" -' (e"c)"")-* -' +-0%)-* "#$$ 2e !)%#-1%
0(eB1+)ce %- %#e 0e*$%)e" )/0-"2$e 1*+e( %#e Pe*$ C-+e )' %#e c()/)*$ c%"
(e 0(-0e($, 0(-5e*.
Can an adopted child continue to be an heir o$ his biological parents) "nder
'rticle 18: o$ the Family Code, the adopted child was still an heir o$ his blood
relatives. Aowever, 'rticle 18: o$ the Family Code was superseded by JJ134
18 o$ -.'. No. 800. -.'. No. 800 is silent on this point. 'ccording to
Dro$essor @alane, one cannot use J13 as the basis $or saying that the adopted
child cannot inherit $rom his biological parents. J13 only tal,s about parental
authority. There is no re$erence to succession.
=!. Su''ort
Professor Ruben F. Balane Pa)e **- of +,-
Art. 194. @upport compromises ever"thing indispensable for sustenance%
dwelling% clothing% medical attendance% education and transportation% in
keeping with the financial capacit" of the famil".
The education of the person entitled to be supported referred to in the
preceding paragraph shall include his schooling or training for some profession%
trade or vocation% even be"ond the age of majorit". Transportation shall include
e-penses in going to and from school% or to and from place of work.
/upport comprises everything indispensable $or sustenance, dwelling, clothing,
medical attendance, education, and transportation, in ,eeping with the $inancial
capacity o$ the $amily.
! Iinds o$ /upport
0 ;egal ? that which is re.uired to be given by law
1 Mudicial ? that which is re.uired to be given by court order whether
pendente lite or in a $inal *udgment
Voluntary or Conventional ? by agreement
'n e(ample o$ conventional support is as $ollow. T donates land to H.
Aowever T imposes a mode ? H has to support Ts mother.
Characteristics o$ /upport
0 Dersonal
1 9ntransmissible
Not sub*ect to waiver or compensation with regard to $uture support
/upport in arrears can be waived.
3 1(empt $rom attachment or e(ecution ='rticle 00
>
% -eciprocal on the part o$ those who are by law bound to support each
other ='rticle 1:0>
5 Variable ='rticles 01 and 0
>
Art. 195. @ubject to the provisions of the succeeding articles% the
following are obliged to support each other to the whole e-tent set forth in the
preceding article+
5'7 The spouses3
567 !egitimate ascendants and descendants3
587 Parents and their legitimate children and the legitimate and illegitimate
children of the latter3
5=7 Parents and their illegitimate children and the legitimate and
illegitimate children of the latter3 and
5)7 !egitimate brothers and sisters% whether of full or half/blood
Art. 196. Grothers and sisters not legitimatel" related% whether of the full
or half/blood% are likewise bound to support each other to the full e-tent set
forth in Article 'E=% e-cept onl" when the need for support of the brother or
sister% being of age% is due to a cause imputable to the claimant;s fault or
negligence.
9llegitimate siblings, whether o$ $ull or hal$ blood, are bound to support each other.
Aowever, they need not give support to an illegitimate, emancipated sibling whose
need $or support is imputable to his $ault or negligence.
Art. 199. 0henever two or more persons are obliged to give support% the
liabilit" shall devolve upon the following persons in the order herein provided+
5'7 The spouse3
567 The descendants in the nearest degree3
587 The ascendants in the nearest degree3 and
5=7 The brothers and sisters.
_
Art. %0$. The right to receive support under this Title as well as any money or property obtained
as such support shall not be levied upon on attachment or e(ecution.
_
Art. %0). The amount o$ support, in the cases re$erred to in 'rticles 1:0 and 1:3, shall be in
proportion to the resources or means o$ the giver and to the necessities o$ the recipient.
Art. %0%. /upport in the cases re$erred to in the preceding article shall be reduced or
increased proportionately, according to the reduction or increase o$ the necessities o$ the recipient
and the resources or means o$ the person obliged to $urnish the same.
Professor Ruben F. Balane Pa)e *.4 of +,-
'rticle 1:: is important because it establishes the order o$ pre$erence $or the givers
o$ support. #hen a relative needs support, there are many relatives one can go
a$ter. That relative in need cannot choose but must $ollow the order established in
this 'rticle 1::.
9$ a parent needs support $rom his children, that parent may chose any o$ the
children. 'll o$ the children are solidarily liable.
Art. 200. 0hen the obligation to give support falls upon two or more
persons% the pa"ment of the same shall be divided between them in proportion
to the resources of each.
9owever% in case of urgent need and b" special circumstances% the judge
ma" order onl" one of them to furnish the support provisionall"% without
prejudice to his right to claim from the other obligors the share due from them.
0hen two or more recipients at the same time claim support from one
and the same person legall" obliged to give it% should the latter not have
sufficient means to satisf" all claims% the order established in the preceding
article shall be followed% unless the concurrent obligees should be the spouse
and a child subject to parental authorit"% in which case the child shall be
preferred.
'rticle 00 establishes the order o$ pre$erence $or recipients. #hen several relatives
come to a particular relative $or support, the relative who will give support must
$ollow 'rticle 00.
9$ the relative who will give support has enough, he must give all those enumerated
in 'rticle 1::. 9$ the relative does not have enough, then the hierarchy enumerated
in 'rticle 1:: must be $ollowed.
'n minor who is an illegitimate child as,s support $rom his $ather. This illegitimate
child will not be pre$erred over the spouse o$ the $ather. Those who will be pre$erred
over the spouse o$ the $ather are those children who are sub*ect to the $athers
parental authority. 9n this case, since the child is illegitimate, the $ather has no
parental authority. The illegitimate child will be behind legitimate children and the
spouse o$ his parent. 9llegitimate children are in 'rticle 1:: => since there is no
distinction between legitimate and illegitimate.
Art. 201. The amount of support% in the cases referred to in Articles 'E)
and 'EB% shall be in proportion to the resources or means of the giver and to
the necessities of the recipient.
Art. 202. @upport in the cases referred to in the preceding article shall be
reduced or increased proportionatel"% according to the reduction or increase of
the necessities of the recipient and the resources or means of the person
obliged to furnish the same.
/upport shall always be in proportion to the means o$ the giver and the necessities o$
the recipient.
There is no res "udicata as to the amount o$ support to be given since support is
variable.
Professor Ruben F. Balane Pa)e *.* of +,-
Art. 203. The obligation to give support shall be demandable from the
time the person who has a right to receive the same needs it for maintenance%
but it shall not be paid e-cept from the date of judicial or e-trajudicial demand.
@upport pen+ente lite ma" be claimed in accordance with the *ules of
Court.
Pa"ment shall be made within the first five da"s of each corresponding
month or when the recipient dies% his heirs shall not be obliged to return what
he has received in advance.
/upport is demandable $rom the time the person who has the right to receive it needs
it. Aowever, it is payable only $rom *udicial or e(tra*udicial demand.
2n 'pril 1, T needed support $rom his $ather. /ince T is too proud, T doesnt as,.
2n Muly 1, T goes to his $ather and as,s him $or support. The $ather re$uses. 2n
/ept. 1, T $iles an action $or support. 2n 2ct. 1, the court renders *udgment in $avor
o$ T. #hen is the $ather obliged to give support) Muly 1 since there was e(tra*udicial
demand.
Art. 204. The person obliged to give support shall have the option to
fulfill the obligation either b" pa"ing the allowance fi-ed% or b" receiving and
maintaining in the famil" dwelling the person who has a right to receive
support. The latter alternative cannot be availed of in case there is a moral or
legal obstacle thereto.
The person obliged to render support may $ul$ill his obligation in ways at his option<
0 Daying the amount $i(ed or
1 -eceiving and maintaining in the $amily dwelling the person who has a
right to receive support
This
nd
option cannot be availed o$ when there is a moral or legal obstacle.
For e(ample, a husband in supporting his wi$e, cannot choose the
nd
option i$
he had been maltreating her (:oitia vs. ;ampos Rueda).
Art. 205. The right to receive support under this Title as well as an"
mone" or propert" obtained as such support shall not be levied upon on
attachment or e-ecution.
Art. 206. 0hen% without the knowledge of the person obliged to give
support% it is given b" a stranger% the latter shall have a right to claim the same
from the former% unless it appears that he gave it without intention of being
reimbursed.
Art. 207. 0hen the person obliged to support another unjustl" refuses or
fails to give support when urgentl" needed b" the latter% an" third person ma"
furnish support to the need" individual% with right of reimbursement from the
person obliged to give support. This Article shall particularl" appl" when the
father or mother of a child under the age of majorit" unjustl" refuses to support
or fails to give support to the child when urgentl" needed.
Art. 208. ,n case of contractual support or that given b" will% the e-cess
in amount be"ond that re.uired for legal support shall be subject to lev" on
attachment or e-ecution.
Professor Ruben F. Balane Pa)e *.. of +,-
Aurthermore% contractual support shall be subject to adjustment
whenever modification is necessar" due to changes of circumstances manifestl"
be"ond the contemplation of the parties.
=!I. Parental Aut7orit9
Darental authority comes $rom patria potestas which means the $athers power. The
woman was always dependent on a male $igure whether it be her husband, her $ather
or her son.
9n -oman ;aw, patria potestas e(tended even to li$e and death. This power was
granted to the $ather in order to ,eep his $amily in chec,. Now, the present concept
o$ parental authority is no longer $ocused on the power aspect. -ather, the $ocus o$
parental authority is the obligational aspect. Darental authority is given to the
parents over their children in order $or the children to be reared properly. The $ocus
is on the child and the childs wel$are.
Art. 209. Pursuant to the natural right and dut" of parents over the
person and propert" of their unemancipated children% parental authorit" and
responsibilit" shall include the caring for and rearing them for civic
consciousness and efficienc" and the development of their moral% mental and
ph"sical character and well/being.
Darental authority terminates at the age o$ 18. This e(tends to both parental
authority over the person and the property o$ the child.
Art. 210. Parental authorit" and responsibilit" ma" not be renounced or
transferred e-cept in the cases authori$ed b" law.
Art. 211. The father and the mother shall jointl" e-ercise parental
authorit" over the persons of their common children. ,n case of disagreement%
the father;s decision shall prevail% unless there is a judicial order to the
contrar".
Children shall alwa"s observe respect and reverence towards their
parents and are obliged to obe" them as long as the children are under parental
authorit".
Darental authority is *oint. 9n case o$ disagreement, the husbands decision prevails.
Aowever, the wi$e can go to court.
For illegitimate children, parental authority is not *oint. 9t is with the mother
Art. 212. ,n case of absence or death of either parent% the parent present
shall continue e-ercising parental authorit". The remarriage of the surviving
parent shall not affect the parental authorit" over the children% unless the court
appoints another person to be the guardian of the person or propert" of the
children.
Art. 213. ,n case of separation of the parents% parental authorit" shall be
e-ercised b" the parent designated b" the Court. The Court shall take into
account all relevant considerations% especiall" the choice of the child over seven
"ears of age% unless the parent chosen is unfit.
Professor Ruben F. Balane Pa)e *.+ of +,-
The
nd
paragraph o$ 'rticle 1! provides that no child under 5 years o$ age shall be
separated $rom the mother, unless the court $inds compelling reasons to order
otherwise.
9n earlier cases, the mother was almost always the custodian o$ a child who is below
5 years. There is a trend o$ liberali7ing this. Courts will always loo, at the best
interest o$ the child as the criterion.
Art. 214. ,n case of death% absence or unsuitabilit" of the parents%
substitute parental authorit" shall be e-ercised b" the surviving grandparent.
,n case several survive% the one designated b" the court% taking into account the
same consideration mentioned in the preceding article% shall e-ercise the
authorit".
Art. 215. 2o descendant shall be compelled% in a criminal case% to testif"
against his parents and grandparents% e-cept when such testimon" is
indispensable in a crime against the descendant or b" one parent against the
other.
'rticle 10 applies only in criminal cases and N2T in a civil case.
General *ule+ ' descendant cannot be compelled in a criminal case to testi$y against
his parents and grandparents.
Exception: ' descendant can be compelled i$ such testimony is indispensable in a
crime against a descendant or by one parent against the other.
,.7E: The criminal case need not be $iled by the descendant or the parent. 9t may
be $iled by a !
rd
person. 'lso, this rule applies only to compulsory testimony. 9t does
not apply to voluntary testimony. Thus, the descendant can volunteer i$ he wants to.
Art. 216. ,n default of parents or a judiciall" appointed guardian% the
following person shall e-ercise substitute parental authorit" over the child in
the order indicated+
5'7 The surviving grandparent% as provided in Art. 6'=3
567 The oldest brother or sister% over twent"/one "ears of age% unless unfit
or dis.ualified3 and
587 The child;s actual custodian% over twent"/one "ears of age% unless unfit
or dis.ualified.
0henever the appointment or a judicial guardian over the propert" of the
child becomes necessar"% the same order of preference shall be observed.
9n de$ault o$ the parents or a *udicial guardian, substitute parental authority over the
child shall be e(ercised in the order indicated<
0 The surviving grandparent
9$ there are several grandparents, then the guardian shall be the one
designated by the court pursuant to 'rticles 1! and 1%
1 The oldest brother or sister, over 1 years old, unless un$it or dis.uali$ied
The childs actual custodian, over 1 years old, unless un$it or dis.uali$ied
Professor Ruben F. Balane Pa)e *./ of +,-
This custodian need not be a relative o$ the child, but he or she must have
actual custody.
Art. 217. ,n case of foundlings% abandoned neglected or abused children
and other children similarl" situated% parental authorit" shall be entrusted in
summar" judicial proceedings to heads of children;s homes% orphanages and
similar institutions dul" accredited b" the proper government agenc".
Art. 218. The school% its administrators and teachers% or the individual%
entit" or institution engaged in child are shall have special parental authorit"
and responsibilit" over the minor child while under their supervision%
instruction or custod".
Authorit" and responsibilit" shall appl" to all authori$ed activities
whether inside or outside the premises of the school% entit" or institution.
Art. 219. Those given the authorit" and responsibilit" under the
preceding Article shall be principall" and solidaril" liable for damages caused b"
the acts or omissions of the unemancipated minor. The parents% judicial
guardians or the persons e-ercising substitute parental authorit" over said
minor shall be subsidiaril" liable.
The respective liabilities of those referred to in the preceding paragraph
shall not appl" if it is proved that the" e-ercised the proper diligence re.uired
under the particular circumstances.
All other cases not covered b" this and the preceding articles shall be
governed b" the provisions of the Civil Code on .uasi/delicts.
'rticles 18 and 1: apply 2N;H to minors since the schools merely ta,e the place o$
the parents.
-ules<
0 'rticles 18 and 1: are not limited to schools o$ arts and trade, but are
applicable to all schools.
1 'uthority and responsibility apply to activities inside and outside provided
the activity is an authori7ed one =i.e. $ield trip>
The liability o$ the school administrators and the teacher is solidary and
primary.
! The liability o$ the parents or the guardian is subsidiary.
% Negligence o$ the school administrators and the teacher is presumed. The
burden in on the school administrator and the teacher to prove diligence under
'rticle 1:.
0 The scope o$ the liability e(tends only to damage caused by the child in the
course o$ an authori7ed school activity.
-ules -egarding ;iability $or 9n*uries Caused by /tudents
0 9$ the student who caused the in*ury is below 18, 'rticles 18 4 1: apply.
1 9$ the student who caused the in*ury is above 18, 'rticles 18 4 1: do
N2T apply. 'rticle 180
is applicable.
'rticle 180 is applicable to both academic and non4academic institutions.
0 'cademic institutions ? the liability attaches to the teacher
1 Non4academic institutions ? the liability attaches to the head o$ the
establishment (Amadora vs. ;A)
9$ a student is in*ured and the persons who caused the in*ury were not students, 'rts.
18, 1: o$ the Family Code and 'rt. 180 o$ the Civil Code are not applicable. The
school is liable in such a case based on the contract between the student and the
school. The school is supposed to provide the student ade.uate protection (P+-A vs.
;A).
'. E..ect o. &arental Aut"orit! 8pon t"e &ersons o. t"e *"il+ren
Art. 220. The parents and those e-ercising parental authorit" shall
have with the respect to their unemancipated children on wards the
following rights and duties+
5'7 To keep them in their compan"% to support% educate and instruct
them b" right precept and good e-ample% and to provide for their
upbringing in keeping with their means3
567 To give them love and affection% advice and counsel%
companionship and understanding3
587 To provide them with moral and spiritual guidance% inculcate in
them honest"% integrit"% self/discipline% self/reliance% industr" and
thrift% stimulate their interest in civic affairs% and inspire in them
compliance with the duties of citi$enship3
5=7 To furnish them with good and wholesome educational materials%
supervise their activities% recreation and association with others%
protect them from bad compan"% and prevent them from
ac.uiring habits detrimental to their health% studies and morals3
Art. %)/0. The obligation imposed by article 153 is demandable not only $or oneGs own acts or
omissions, but also $or those o$ persons $or whom one is responsible.
The $ather and, in case o$ his death or incapacity, the mother, are responsible $or the
damages caused by the minor children who live in their company.
6uardians are liable $or damages caused by the minors or incapacitated persons who are
under their authority and live in their company.
The owners and managers o$ an establishment or enterprise are li,ewise responsible $or
damages caused by their employees in the service o$ the branches in which the latter are employed
or on the occasion o$ their $unctions.
1mployers shall be liable $or the damages caused by their employees and household
helpers acting within the scope o$ their assigned tas,s, even though the $ormer are not engaged in
any business or industry.
The /tate is responsible in li,e manner when it acts through a special agent& but not when
the damage has been caused by the o$$icial to whom the tas, done properly pertains, in which case
what is provided in article 153 shall be applicable.
;astly, teachers or heads o$ establishments o$ arts and trades shall be liable $or damages
caused by their pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated o$ in this article shall cease when the persons herein mentioned
prove that they observed all the diligence o$ a good $ather o$ a $amily to prevent damage.
5)7 To represent them in all matters affecting their interests3
5B7 To demand from them respect and obedience3
5C7 To impose discipline on them as ma" be re.uired under the
circumstances3 and
5D7 To perform such other duties as are imposed b" law upon parents
and guardians.
Art. 221. Parents and other persons e-ercising parental authorit"
shall be civill" liable for the injuries and damages caused b" the acts or
omissions of their unemancipated children living in their compan" and
under their parental authorit" subject to the appropriate defenses
provided b" law.
Art. 222. The courts ma" appoint a guardian of the child;s propert"
or a guardian ad litem when the best interests of the child so re.uires.
Art. 223. The parents or% in their absence or incapacit"% the
individual% entit" or institution e-ercising parental authorit"% ma" petition
the proper court of the place where the child resides% for an order
providing for disciplinar" measures over the child. The child shall be
entitled to the assistance of counsel% either of his choice or appointed b"
the court% and a summar" hearing shall be conducted wherein the
petitioner and the child shall be heard.
9owever% if in the same proceeding the court finds the petitioner at
fault% irrespective of the merits of the petition% or when the circumstances
so warrant% the court ma" also order the deprivation or suspension of
parental authorit" or adopt such other measures as it ma" deem just and
proper.
Art. 224. The measures referred to in the preceding article ma"
include the commitment of the child for not more than thirt" da"s in
entities or institutions engaged in child care or in children;s homes dul"
accredited b" the proper government agenc".
The parent e-ercising parental authorit" shall not interfere with
the care of the child whenever committed but shall provide for his
support. ?pon proper petition or at its own instance% the court ma"
terminate the commitment of the child whenever just and proper.
6. E..ect o. &arental Aut"orit! 8pon t"e &ropert! o. t"e *"il+ren
Art. 225. The father and the mother shall jointl" e-ercise legal
guardianship over the propert" of the unemancipated common child
without the necessit" of a court appointment. ,n case of disagreement%
the father;s decision shall prevail% unless there is a judicial order to the
contrar".
0here the market value of the propert" or the annual income of
the child e-ceeds P)4%444% the parent concerned shall be re.uired to
furnish a bond in such amount as the court ma" determine% but not less
than ten per centum 5'4F7 of the value of the propert" or annual
Professor Ruben F. Balane Pa)e *., of +,-
income% to guarantee the performance of the obligations prescribed for
general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides% or% if the child resides in
a foreign countr"% in the proper court of the place where the propert" or
an" part thereof is situated.
The petition shall be docketed as a summar" special proceeding in
which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article shall be
heard and resolved.
The ordinar" rules on guardianship shall be merel" suppletor"
e-cept when the child is under substitute parental authorit"% or the
guardian is a stranger% or a parent has remarried% in which case the
ordinar" rules on guardianship shall appl".
Art. 226. The propert" of the unemancipated child earned or
ac.uired with his work or industr" or b" onerous or gratuitous title shall
belong to the child in ownership and shall be devoted e-clusivel" to the
latter;s support and education% unless the title or transfer provides
otherwise.
The right of the parents over the fruits and income of the child;s
propert" shall be limited primaril" to the child;s support and secondaril"
to the collective dail" needs of the famil".
Art. 227. ,f the parents entrust the management or administration
of an" of their properties to an unemancipated child% the net proceeds of
such propert" shall belong to the owner. The child shall be given a
reasonable monthl" allowance in an amount not less than that which the
owner would have paid if the administrator were a stranger% unless the
owner% grants the entire proceeds to the child. ,n an" case% the proceeds
thus give in whole or in part shall not be charged to the child;s legitime.
Darents may e(ercise parental authority over their childs property.
Iinds o$ Droperties o$ Einors
0 Adventitious ='rticle 3>
'dventitious property is earned or ac.uired by the child through his
wor, or industry or by onerous or gratuitous title.
The child owns this property.
The child is also is the usu$ructuary as the child en*oys the $ruits unless
the mode o$ trans$er provides otherwise. The $ruits and income o$
adventitious property must be applied primarily $or the childs support
and secondarily $or the $amilys collective needs ='rticle 3, B>.
The property is administered by the parents since the child has no
capacity to act.
1 Profectitious ='rticle 5>
Dro$ectitious property is owned by the parents. Aowever, this property
is given to the child $or him to administer. For e(ample, the parents
Professor Ruben F. Balane Pa)e *.- of +,-
may own a $arm. Their child is 15 years old. To teach him industry, the
parents tell the child to harvest and ta,e care o$ the $arm.
The parents own this type o$ property.
The parents are the usu$ructuary. Aowever, the child is entitled to a
monthly allowance which should be not less than what the owner o$ the
property would have paid an administrator. The parents may give the
entire proceeds o$ the property to the child.
The property is administered by the child.
C. 5uspension or 7erination o. &arental Aut"orit!
Art. 228. Parental authorit" terminates permanentl"+
5'7 ?pon the death of the parents3
567 ?pon the death of the child3 or
587 ?pon emancipation of the child.
Art. 229. ?nless subse.uentl" revived b" a final judgment%
parental authorit" also terminates+
5'7 ?pon adoption of the child3
567 ?pon appointment of a general guardian3
587 ?pon judicial declaration of abandonment of the child in a case
filed for the purpose3
5=7 ?pon final judgment of a competent court divesting the part"
concerned of parental authorit"3 or
5)7 ?pon judicial declaration of absence or incapacit" of the person
e-ercising parental authorit".
Art. 230. Parental authorit" is suspended upon conviction of the
parent or the person e-ercising the same of a crime which carries with it
the penalt" of civil interdiction. The authorit" is automaticall" reinstated
upon service of the penalt" or upon pardon or amnest" of the offender.
Art. 231. The court in an action filed for the purpose in a related
case ma" also suspend parental authorit" if the parent or the person
e-ercising the same+
5'7 Treats the child with e-cessive harshness or cruelt"3
567 Gives the child corrupting orders% counsel or e-ample3
587 Compels the child to beg3 or
5=7 @ubjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases which
have resulted from culpable negligence of the parent or the person
e-ercising parental authorit".
,f the degree of seriousness so warrants% or the welfare of the child
so demands% the court shall deprive the guilt" part" of parental authorit"
or adopt such other measures as ma" be proper under the circumstances.
The suspension or deprivation ma" be revoked and the parental
authorit" revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and will
not be repeated.
Art. 232. ,f the person e-ercising parental authorit" has subjected
the child or allowed him to be subjected to se-ual abuse% such person
shall be permanentl" deprived b" the court of such authorit".
Art. 233. The person e-ercising substitute parental authorit" shall
have the same authorit" over the person of the child as the parents.
,n no case shall the school administrator% teacher of individual
engaged in child care e-ercising special parental authorit" inflict corporal
punishment upon the child.
Iinds o$ Termination and /uspension
4 ,rreversible Termination
0 +eath o$ the parents ='rticle 8 =1>>
Darental authority is terminated as $ar as the dead parent is
concerned.
1 +eath o$ the child ='rticle 8 =>>
1mancipation ='rticle 8 =!>>
This is the most common.
! Court order under 'rticle !
9$ the parent or parents e(ercising parental authority have
sub*ected the child or allowed him or her to be sub*ected to se(ual
abuse, the parent or parents shall be deprived permanently by the
court o$ such parental authority.
1 *eversible Termination =the termination may or may not be
permanent>
0 "pon adoption
9t is reversible because there is a possibility that the adoption may
be rescinded.
1 "pon appointment o$ a guardian
6uardianship may be li$ted i$ such is no longer necessary
Mudicial declaration o$ abandonment
! Final *udgment o$ a competent court under 'rticle !1
The grounds are<
0 Treats the child with e(cessive harshness or cruelty&
1 6ives the child corrupting orders, counsel or e(ample&
Compels the child to beg& or
! /ub*ects the child or allows him or her to be sub*ected to acts o$
lasciviousness
Professor Ruben F. Balane Pa)e *+4 of +,-
% Mudicial declaration o$ absence or incapacity o$ the person
6 @uspension of Parental Authorit"
0 Darent is convicted o$ a crime which carries with it the accessory
penalty o$ civil interdiction
1 Court order under 'rticle !1
The grounds are<
0 Treats the child with e(cessive harshness or cruelty&
1 6ives the child corrupting orders, counsel or e(ample&
Compels the child to beg& or
! /ub*ects the child or allows him or her to be sub*ected to acts o$
lasciviousness
,.7E: "nder 'rticle !1, parental authority may be suspended or
terminated depending on the seriousness o$ the ground.
=!II. $iscellaneous Provisions
Art. 356. :ver" child+
5'7 ,s entitled to parental care3
567 @hall receive at least elementar" education3
587 @hall be given moral and civic training b" the parents or guardian3
5=7 9as a right to live in an atmosphere conducive to his ph"sical% moral
and intellectual development.
Art. 357. :ver" child shall+
5'7 #be" and honor his parents or guardian3
567 *espect his grandparents% old relatives% and persons holding substitute
parental authorit"3
587 :-ert his utmost for his education and training3
5=7 Cooperate with the famil" in all matters that make for the good of the
same.
Art. 358. :ver" parent and ever" person holding substitute parental
authorit" shall see to it that the rights of the child are respected and his duties
complied with% and shall particularl"% b" precept and e-ample% imbue the child
with highmindedness% love of countr"% veneration for the national heroes%
fidelit" to democrac" as a wa" of life% and attachment to the ideal of permanent
world peace.
Art. 359. The government promotes the full growth of the faculties of
ever" child. Aor this purpose% the government will establish% whenever possible+
5'7 @chools in ever" barrio% municipalit" and cit" where optional religious
instruction shall be taught as part of the curriculum at the option of the
parent or guardian3
567 Puericulture and similar centers3
Professor Ruben F. Balane Pa)e *+* of +,-
587 Councils for the Protection of Children3 and
5=7 1uvenile courts.
Art. 360. The Council for the Protection of Children shall look after the
welfare of children in the municipalit". ,t shall% among other functions+
5'7 Aoster the education of ever" child in the municipalit"3
567 :ncourage the cultivation of the duties of parents3
587 Protect and assist abandoned or mistreated children% and orphans3
5=7 Take steps to prevent juvenile delin.uenc"3
5)7 Adopt measures for the health of children3
5B7 Promote the opening and maintenance of pla"grounds3
5C7 Coordinate the activities of organi$ations devoted to the welfare of
children% and secure their cooperation.
Art. 361. 1uvenile courts will be established% as far as practicable% in
ever" chartered cit" or large municipalit".
Art. 362. 0henever a child is found delin.uent b" an" court% the father%
mother% or guardian ma" in a proper case be judiciall" admonished.
Art. 363. ,n all .uestions on the care% custod"% education and propert" of
children the latter;s welfare shall be paramount. 2o mother shall be separated
from her child under seven "ears of age% unless the court finds compelling
reasons for such measure.
'rticles !03 to !3! o$ the Civil Code have not been repealed by the Family Code.
Eost though are dead letter law.
'rticle !3! is an important since this article deals with the best interest o$ the child.
The second sentence o$ 'rticle !3! is $ound in the second paragraph o$ 'rticle 1!
o$
the Family Code.
The $irst sentence o$ 'rticle !3! is still good law.
=!III. Su22ar9 5u&icial Procee&in)s ='rticles !840>
Art. 238. ?ntil modified b" the @upreme Court% the procedural rules
provided for in this Title shall appl" as regards separation in fact between
husband and wife% abandonment b" one of the other% and incidents involving
parental authorit".
Art. 239. 0hen a husband and wife are separated in fact% or one has
abandoned the other and one of them seeks judicial authori$ation for a
transaction where the consent of the other spouse is re.uired b" law but such
consent is withheld or cannot be obtained% a verified petition ma" be filed in
court alleging the foregoing facts.
`
Art. %)( '%. 9n case o$ separation o$ the parents, parental authority shall be e(ercised by the
parent designated by the Court. The Court shall ta,e into account all relevant considerations,
especially the choice o$ the child over seven years o$ age, unless the parent chosen is un$it.
Professor Ruben F. Balane Pa)e *+. of +,-
The petition shall attach the proposed deed% if an"% embod"ing the
transaction% and% if none% shall describe in detail the said transaction and state
the reason wh" the re.uired consent thereto cannot be secured. ,n an" case%
the final deed dul" e-ecuted b" the parties shall be submitted to and approved
b" the court.
Art. 240. Claims for damages b" either spouse% e-cept costs of the
proceedings% ma" be litigated onl" in a separate action.
Art. 241. 1urisdiction over the petition shall% upon proof of notice to the
other spouse% be e-ercised b" the proper court authori$ed to hear famil" cases%
if one e-ists% or in the regional trial court or its e.uivalent sitting in the place
where either of the spouses resides.
Art. 242. ?pon the filing of the petition% the court shall notif" the other
spouse% whose consent to the transaction is re.uired% of said petition% ordering
said spouse to show cause wh" the petition should not be granted% on or before
the date set in said notice for the initial conference. The notice shall be
accompanied b" a cop" of the petition and shall be served at the last known
address of the spouse concerned.
Art. 243. A preliminar" conference shall be conducted b" the judge
personall" without the parties being assisted b" counsel. After the initial
conference% if the court deems it useful% the parties ma" be assisted b" counsel
at the succeeding conferences and hearings.
Art. 244. ,n case of non/appearance of the spouse whose consent is
sought% the court shall in.uire into the reasons for his failure to appear% and
shall re.uire such appearance% if possible.
Art. 245. ,f% despite all efforts% the attendance of the non/consenting
spouse is not secured% the court ma" proceed e- parte and render judgment as
the facts and circumstances ma" warrant. ,n an" case% the judge shall
endeavor to protect the interests of the non/appearing spouse.
Art. 246. ,f the petition is not resolved at the initial conference% said
petition shall be decided in a summar" hearing on the basis of affidavits%
documentar" evidence or oral testimonies at the sound discretion of the court.
,f testimon" is needed% the court shall specif" the witnesses to be heard and the
subject/matter of their testimonies% directing the parties to present said
witnesses.
Art. 247. The judgment of the court shall be immediatel" final and
e-ecutor".
Art. 248. The petition for judicial authorit" to administer or encumber
specific separate propert" of the abandoning spouse and to use the fruits or
proceeds thereof for the support of the famil" shall also be governed b" these
rules.
Art. 249. Petitions filed under Articles 668% 66) and 68) of this Code
involving parental authorit" shall be verified.
Professor Ruben F. Balane Pa)e *++ of +,-
Art. 250. @uch petitions shall be verified and filed in the proper court of
the place where the child resides.
Art. 251. ?pon the filing of the petition% the court shall notif" the parents
or% in their absence or incapacit"% the individuals% entities or institutions
e-ercising parental authorit" over the child.
Art. 252. The rules in Chapter 6 hereof shall also govern summar"
proceedings under this Chapter insofar as the" are applicable.
0 /ummary *udicial proceedings provided under the Family Code<
0 +eclaration o$ presumptive death
1 Dartition o$ spouses property
+isagreement in $i(ing domicile
! +isagreement in the e(ercise o$ pro$ession
% +isagreement in the administration o$ community property
0 +isagreement in the administration o$ con*ugal property
3 Darental authority over $oundlings

Professor Ruben F. Balane Pa)e *+/ of +,-
PR"PERT%
Droperty is any physical or incorporeal entity capable o$ becoming the ob*ect o$ a
*uridical relation.
Classification of Pro'ert9 :Castan;
0 According to 2ature ='rticle %1%>
Art. 414. All things which are or ma" be the object of appropriation
are considered either+
5'7 ,mmovable or real propert"3 or
567 <ovable or personal propert".
4 Real or io(a'le 5Article =')7
% Categories o$ 9mmovables
0 *eal b" nature ='rticle %10, B1 and B8>
4 !and% buildings% roads% and constructions of all kinds adhered to
the soil
9n the case o$ Lopez vs. .rosa a theater was constructed by using
lumber. The lumber supplier was not paid. The lumber supplier
was contending his material mans lien e(tends to the land. The /C
said that the material mans lien attaches only to the building since
a building is an immovable property by itsel$.
9n Associated Insurance vs. I8a, the /C said that the chattel
mortgage over the house was void since a house is an immovable
and not chattel. 2n the other hand, in 7umalad vs. >icencio, the
/C said that the parties may treat the house as chattel. The /C
$urther added that the mortgagor is estopped $rom assailing the
validity o$ the chattel mortgage over the house.
Aow do you reconcile the rulings o$ Associated Insurance vs. I8a
and 7umalad vs. >icencio) 7umalad vs. >icencio applies only i$ no
!
rd
parties are pre*udiced.
9s it correct to say that the 7umalad ruling tells us that a chattel
mortgage over a building is proper) No, it does not. ' chattel
mortgage over a building is always improper since a building is
always an immovable. 9n 7umalad vs. >icencio, as between the
parties, the chattel mortgage is en$orceable. The parties are
estopped $rom assailing the validity.
6rey 'rea in Associated Insurance vs. I8a ? #hat i$ the !
rd
party
was aware o$ the e(istence o$ the chattel mortgage and despite
such ,nowledge, the !
rd
party entered into the real estate
mortgage) 'ccording to Dro$essor @alane, there may be ways o$
answering this<
2ne can argue that the real estate mortgage is valid despite
,nowledge o$ the !
rd
party. Thats probably why the !
rd
party
entered into the real estate mortgage. Ae ,new that the chattel
mortgage is ine$$ective as between !
rd
parties.
2ne can argue that the !
rd
party is in bad $aith ='rticles 1: and
0
>
' <ines% .uarries and slag dumps% while the matter thereof forms
part of the bed% and waters either running or stagnant
1 *eal b" incorporation ='rticle %10, Bs ,!, and 5>
4 Trees% plants% and growing fruits% while the" are attached to the
land or form an integral part of an immovable
6rowing $ruits and crops are movables in other laws =i.e. chattel
mortgage law>
' :ver"thing attached to an immovable in a fi-ed manner% in such
a wa" that it cannot be separated therefrom without breaking
the material or deterioration of the object
9t is the result which is important& that it cannot be removed
without causing damage.
There is no re.uirement that the attachment be done by the owner
=can be done by anyone>.
9n -oard o! Assessments vs. E1-';C2, the E1-';C2 was assessed
real property ta( on its electric poles. The theory was that the
same are real property being adhered to the soil. The /C said that
the electric poles are not real property since they can be removed.
/uch poles were not attached in $i(ed manner.
6 Aertili$er actuall" used on a piece of land
0 6rowing $ruits The $ertili7er is real property since it becomes
an integral part o$ the soil.
*eal b" destination ='rticle %10, Bs %, 0, 3 and :>
4 @tatues% reliefs% paintings or other objects for use or
ornamentation% placed in buildings or on lands b" the owner of
the immovable in such manner that it reveals the intention to
attach them permanentl" to the tenements
`
Art. )2. 1very person must, in the e(ercise o$ his rights and in the per$ormance o$ his duties, act
with *ustice, give everyone his due, and observe honesty and good $aith.
Art. %0. 1very person who, contrary to law, will$ully or negligently causes damage to
another, shall indemni$y the latter $or the same.
1 -e.uisites $or 9mmobili7ation
0 9t is an ob*ect o$ ornamentation or ob*ect o$ use.
1 The ob*ect is placed on a building or land.
The installation was made by the owner o$ the building or
the land.
! 9t is attached in such a manner that it reveals an intention to
attach it permanently.
' <achiner"% receptacles% instruments or implements intended b"
the owner of the tenement for an industr" or works which ma"
be carried on in a building or on a piece of land% and which tend
directl" to meet the needs of the said industr" or works
-e.uisites $or 9mmobili7ation
0 The ob*ect must be either machinery, receptacles,
instruments or implements $or an industry or wor,.
1 The ob*ect is installed in a tenement.
The installation is by the owner o$ the tenement.
%. 9ndustry or wor,s are carried on in the tenement.
0. The ob*ect carries out directly the industry or wor,.
! 9n -er6en6otter vs. ;u En"ieng there was a real estate
mortgage over the sugar central. 'dditional machinery was bought
to increase the sugar centrals capacity. The /C said that the
additional machinery became immobili7ed under 'rticle %10 =0>.
Thus, the additional machinery is included in the real estate
mortgage.
% 9n -er6en6otter vs. ;u En"ieng, would it have made a
di$$erence i$ there was no stipulation that the real estate mortgage
would cover $uture improvements) No, the improvements would be
covered automatically by law as the same are immobili7ed. 2$
course, the parties are $ree to stipulate what may be e(cluded $rom
the mortgage.
0 9n Davao +a4 9ill vs. ;astillo the machinery was installed
by the lessee. The contract o$ lease stated that all improvements
introduced by the lessee e(cept machineries would belong to the
lessor a$ter the e(piration o$ the lease contract. The /C said that
the machinery was not immobili7ed under 'rticle %10 =0> since the
same was installed by the lessee and not the owner o$ the building
or land.
3 /uppose in Davao +a4 9ill vs. ;astillo, there was a provision
in the lease contract that the machinery would pass to the lessor.
#ould the machinery be immobili7ed) Hes, it would since the lessor
acts as an agent o$ the owner =the owner installs through the
agent>.
Professor Ruben F. Balane Pa)e *+, of +,-
5 /uppose in Davao +a4 9ill vs. ;astillo the lease contract
was silent on whether or not the machinery would pass to the
lessor. Dro$essor @alane is not sure. Ae thin,s that 'rticle 1358
may be applicable. "nder 'rticle 1358, the lessor upon the
termination o$ the lease shall pay Z o$ the value o$ the
improvements. /hould the lessor re$use to reimburse the
improvements, then the lessee may remove the same even though
the principal thing may be damaged.
8 'rticle 1358 does not answer when the machinery becomes
immobili7ed in case the lessor decides to buy it. 9s it immobili7ed
upon installation or upon purchase) 'rticle 1358 is not clear on
this.
6 Animal houses% pigeon houses% beehives% fish ponds or breeding
places of similar nature% in case their owner has placed them or
preserves them with the intention to have them permanentl"
attached to the land% and forming a permanent part of it3 the
animals in these places are included
: -e.uisites
1. The structure is placed by the owner.
. The installation must be with the intention to have them
permanently attached and $orming a part o$ it.
10 The animals are real property only $or as long as they
remain there. Thus, i$ the pigeons $ly out o$ the pigeon house, then
they are no longer real property.
8 Docks and structures which% though floating% are intended b"
their nature and object to remain at a fi-ed place on a river%
lake% or coast
! *eal b" analog" ='rticle %10, B10>
'' Contracts for public works% and servitudes and other real
rights over immovable propert"
1 9n contracts $or public wor,s, the contract itsel$ is the real
property. For e(ample, the contract to build the 1+/' $lyover is
real property in itsel$. 9n contracts $or private wor,s, the contract is
personal property.
1! -eal rights are those rights which are en$orceable against
the whole world. =i.e. ownership, possession in concept o$ holder,
servitude, mortgage>.
1% For a real right to be considered real property, the real right
must be over an immovable property. For e(ample, the real right
o$ ownership o$ the land is considered real property while the real
right o$ ownership over a bag is considered personal property.
1 &ersonal or o(a'le
Professor Ruben F. Balane Pa)e *+- of +,-
Art. 416. The following things are deemed to be personal
propert"+
5'7 Those movables susceptible of appropriation which are not
included in the preceding article3
567 *eal propert" which b" an" special provision of law is
considered as personal propert"3
587 Aorces of nature which are brought under control b" science3
and
5=7 ,n general% all things which can be transported from place to
place without impairment of the real propert" to which the"
are fi-ed.
Art. 417. The following are also considered as personal
propert"+
5'7 #bligations and actions which have for their object movables
or demandable sums3 and
567 @hares of stock of agricultural% commercial and industrial
entities% although the" ma" have real estate.
10 /ince 'rticle %10 is e(clusive, 'rticles %13 and %15 are super$luous.
13 /hares o$ stoc, =even i$ they shares o$ stoc, o$ 'yala ;and> are
always personal property.
,.7E: The terms Oreal propertyP and Opersonal propertyP are common law
terms while Oimmovable propertyP and Omovable propertyP are civil law
terms.
15 The distinction between immovable and movable property is
important in mortgages (Lopez vs. .rosa Associated Insurance vs. I8a
and 7umalad vs. >icencio).
18 The distinction is also important in donations since the $orm will be
di$$erent.
1 According to Character of #wnership ='rticles %1: 4 %0>
Art. 419. Propert" is either of public dominion or of private
ownership.
Art. 420. The following things are propert" of public dominion+
5'7 Those intended for public use% such as roads% canals% rivers% torrents%
ports and bridges constructed b" the @tate% banks% shores% roadsteads%
and others of similar character3
567 Those which belong to the @tate% without being for public use% and are
intended for some public service or for the development of the national
wealth.
Art. 421. All other propert" of the @tate% which is not of the character
stated in the preceding article% is patrimonial propert".
Art. 422. Propert" of public dominion% when no longer intended for public
use or for public service% shall form part of the patrimonial propert" of the
@tate.
Art. 425. Propert" of private ownership% besides the patrimonial propert"
of the @tate% provinces% cities% and municipalities% consists of all propert"
belonging to private persons% either individuall" or collectivel".
0 &u'lic +oinion
1: Iinds o$ Droperty o$ the Dublic +ominion
0 Public use ? anyone can use =i.e., 1+/', -i7al Dar,>
0 Droperty $or public use may be owned by the state ='rticle %0 =1>>
1 Droperty $or public use may be owned by ;6"s ? political subdivisions
='rticle %%>
1 Public service ? not $or the general use but $or some state
$unction =i.e. government hospitals, Ealcolm Aall>
0 2nly the state may own property $or public service ='rticle %0 =>>
1 There is no such thing as property $or public service $or ;6"s.
,.7E: The term Opublic dominionP is a civil law term while Opublic domainP
is a common law term. /trictly spea,ing, they are not synonymous.
Characteristics o$ Droperty o$ the Dublic +ominion
1. 2utside the commerce o$ man e(cept $or purposes o$ repairs
. Not sub*ect to prescription =because outside the commerce o$ man>
!. Cannot be levied upon =i.e. e(ecution or attachment>
%. Cannot be burdened by any voluntary easement
! 9n @a6apin vs. ;?I, the private lot was eroded by the sea. 9t eventually
become part o$ the seabed. The /C said that the private lot became part o$
the public dominion since it is now part o$ the seabed.
% 9n 6overnment o$ the P#ilippines vs. ;a5angis, the /C said that the land
was covered by a Torrens title will not protect the land owner i$ the land
becomes part o$ the seabed ? de !acto case o$ eminent domain.
0 9n Repu5lic vs. ;A the /C said that the land did not become part o$ the
public dominion. There was only a temporary inundation. 2nce the $lood had
subsided, the land became dry =see 'rticle %08>.
3 Cree,s and $orest land $orm part o$ the public dominion.

1 &ri(ate o;ners"ip
5 ! Iinds o$ Droperty o$ Drivate 2wnership
4 Patrimonial propert" of the state
8 'll property o$ the state which is not o$ part o$ the public dominion
is patrimonial property ='rticle %1>.
Professor Ruben F. Balane Pa)e */4 of +,-
: Droperty o$ public dominion, when no longer intended $or public use
or $or public service, shall $orm part o$ the patrimonial property o$ the
/tate ='rticle %>.
!0 -ulings in Laurel vs. :arcia =-oponggi case>
1. The -oponggi property is property o$ the public dominion since it is
$or public service.
!1 'ccording to Dro$essor @alane, this has serious implications.
9s it possible $or property owned by the government in a $oreign
land to become property o$ the public dominion) Dublic
dominion connotes sovereignty. 9n the case o$ -oponggi, Mapan
is the sovereign authority. 9n this case the Dhilippines is only a
private land owner. Mapan, being the sovereign, can e(propriate
the -oponggi property, and the Dhilippines cannot re$used. The
/C should have answered the .uestion 9s it possible $or property
owned by the government in a $oreign land to become property
o$ the public dominion.
. Droperty o$ the public dominion cannot be alienated without it being
converted to patrimonial property. 2nce the property has been
converted, it is alienable.
!. -oponggi has not been converted to patrimonial property.
Conversion can only ta,e place by a $ormal declaration. /uch
declaration cannot be implied.
! 9t is not clear i$ this $ormal declaration is an e(ecutive or a
legislative act.
%. Datrimonial property can be alienated only by an authority o$ law
=legislature>.
1 Patrimonial propert" of !G?s =political subdivisions>
6 Patrimonial propert" of individuals
Art. 423. The propert" of provinces% cities% and municipalities is divided
into propert" for public use and patrimonial propert".
Art. 424. Propert" for public use% in the provinces% cities% and
municipalities% consist of the provincial roads% cit" streets% municipal streets%
the s.uares% fountains% public waters% promenades% and public works for public
service paid for b" said provinces% cities% or municipalities.
All other propert" possessed b" an" of them is patrimonial and shall be
governed b" this Code% without prejudice to the provisions of special laws.
0 Droperties o$ ;6"s ='rticles %! and %%>
1. Droperty $or public use
!! Droperty $or public use consist o$ roads, streets, s.uares, $ountains,
public waters, promenades and public wor,s $or public service paid $or
by the ;6"s ='rticle %%, B1>
. Datrimonial property
Professor Ruben F. Balane Pa)e */* of +,-
!% 'll other property possessed by any o$ them is patrimonial and shall
be governed by the Civil Code, without pre*udice to the provisions o$
special laws.
,.7E: 'ccording to Dro$essor @alane, certain decisions have eroded
'rticles %! and %%.
!0 9n 7an 7oco vs. 9unicipal ;ouncil o! Iloilo, a person levied on
truc,s, police cars, police stations. The /C said that these could not be
levied since they were property $or public use. 'ccording to Dro$essor
@alane, these are not properties $or public use since not every in the
general public may use them. Following the Civil Code, they are
patrimonial property.
!3 9n Fam5oanga del ,orte vs. ;it8 o! Fam5oanga, $ollowing the Civil
Code de$inition, all but o$ the lots =playgrounds> are really patrimonial
since there is ;6"s cannot own property devoted $or public service.
@ut that was not what the /C said.
6 According to :ssential Aorm
0 *orporeal
1 3ncorporeal =i.e. shares o$ stoc,, goodwill in a business>
!5 The distinction is important $or areas such as mode o$ trans$er
8 According to Designation
0 5peci.ic
!8 The ob*ect is individually determined. For e(ample, 9 promise to sell you
my car with license plate DE1 08.
1 Generic
!: The ob*ect is determined only as to its ,ind. For e(ample, 9 promise to sell
you 1000 ,ilos o$ rice.
%0 The distinction is important in legacies and donations. The distinction is
also important in e(tinguishing obligations.
= According to its @usceptibilit" to @ubstitution
0 )un/i'le
%1 Fungible means that the thing can be substituted with another thing o$ the
same ,ind or .uality. This is determined by the 9NT1NT o$ the parties. For
e(ample, i$ ' borrows a boo, $rom @, it may be the intention o$ the parties
that @ return the e(act same boo, since it has 's annotations.

1 #on<)un/i'le
) According to its Aptitude for *epeated ?se
Art. 418. <ovable propert" is either consumable or nonconsumable.
To the first class belong those movables which cannot be used in a manner
Professor Ruben F. Balane Pa)e */. of +,-
appropriate to their nature without their being consumed3 to the second
class belong all the others.
0 *onsua'le
% ' thing is consumable i$ according to its nature, it cannot be used
appropriately without being consumed.
1 #on<*onsua'le
,.7E: The legal de$inition o$ consumable in 'rticle 1:!!
is wrong. The sub*ect

matter o$ a commodatum may be a consumable or not. @ut, it must be non4$ungible
since the e(act, same thing must be returned. 9n a mutuum, the obligor can return a
di$$erent thing as long as it is o$ the same ,ind and .uality.
B According to its @usceptibilit" to Division
0 Di(isi'le
1 3n+i(isi'le
%! The distinction is important in partition =either physical or constructive
partition>
C According to its :-istence in Time
0 &resent ? res existens
1 )uture ? res !uturae
%% The distinction is important in sales. 9t is also important in donations. '
party cannot donate $uture things. 9t is also important in succession. ' party
cannot enter into a contract regarding $uture inheritance.
D According to its Dependence
0 &rincipal
1 Accessor!
45 The general rule is that the accessory $ollows the principal. 'n e(ception
to the general rules is reverse accession ='rticle 10
, Family Code>.
Art. )2((. @y the contract o$ loan, one o$ the parties delivers to another, either something not
consumable so that the latter may use the same $or a certain time and return it, in which case the
contract is called a commodatum& or money or other consumable thing, upon the condition that the
same amount o$ the same ,ind and .uality shall be paid, in which case the contract is simply called
a loan or mutuum.
Commodatum is essentially gratuitous.
/imple loan may be gratuitous or with a stipulation to pay interest.
9n commodatum the bailor retains the ownership o$ the thing loaned, while in simple loan,
ownership passes to the borrower.
Art. )%0. The ownership o$ improvements, whether $or utility or adornment, made on the
separate property o$ the spouses at the e(pense o$ the partnership or through the acts or e$$orts
o$ either or both spouses shall pertain to the con*ugal partnership, or to the original owner4
spouse, sub*ect to the $ollowing rules<
Professor Ruben F. Balane Pa)e */+ of +,-
%3 The distinction is important in sales. #hen one buys a car, the car should
include the accessories such as the spare tire, the radio, etc. The distinction is
also important in lease contracts.
Bun&le of Ri)7ts
,. #wnership
Art. 427. #wnership ma" be e-ercised over things or rights.
%5 2wnership is the independent and general right o$ a person to control a
thing in its possession, en*oyment, disposition and recovery sub*ect to no
restrictions e(cept those validly imposed by the state or by *uridical transactions.
%8 9n -oman ;aw, ownership was an absolute right. 2wnership is evolving in
light o$ social *ustice, police power in order to promote the wel$are o$ the people
and environmental concerns. Now, we have concepts such as stewardship. Now,
one must comply with sa$ety and environmental regulations. Now, building
permits are re.uired.
%: 2wnership is accompanied by the $ollowing rights (P#il. -an6ing vs. Lui
+#e)<
0 ius possidendi ? the right to possess
1 ius utendi ? the right to use
ius !ruendi ? the right to en*oy the $ruits
! ius a5utendi ? the right to destroy =but cannot harm others>
% ius disponendi ? the right to dispose, or the right to alienate, encumber,
trans$orm
0 ius vindicandi ? the right o$ action available to the owner to recover the
property against the holder or possessor
3 ius accessions ? the right to accessions
00 Characteristics o$ 2wnership
1. General ='rticle %8>
Art. 428. The owner has the right to enjo" and dispose of a
thing% without other limitations than those established b" law.
The owner has also a right of action against the holder and
possessor of the thing in order to recover it.
#hen the cost o$ the improvement made by the con*ugal partnership and any resulting
increase in value are more than the value o$ the property at the time o$ the improvement, the
entire property o$ one o$ the spouses shall belong to the con*ugal partnership, sub*ect to
reimbursement o$ the value o$ the property o$ the owner4spouse at the time o$ the improvement&
otherwise, said property shall be retained in ownership by the owner4spouse, li,ewise sub*ect to
reimbursement o$ the cost o$ the improvement.
9n either case, the ownership o$ the entire property shall be vested upon the
reimbursement, which shall be made at the time o$ the li.uidation o$ the con*ugal partnership.
Professor Ruben F. Balane Pa)e *// of +,-
01 The owner may use the thing in all its possibility sub*ect to
restrictions. For e(ample, an owner is not limited in using a bag merely as
a place where goods are ,ept. The owner may use the bag as a hat.
. ,ndependent
0 2wnership can e(ist even without any other right.
!. Abstract
0! The right o$ ownership e(ists distinctly $rom its constituent or
component parts =i.e. ius accessions, ius a5utendi, etc>.
%. :lastic
0% The component rights can be reduced or given to others =i.e.
usu$ruct ? the right to en*oy the $ruits>.
0. :-clusive
00 There can only be 1 ownership at one time.
03 9n co4ownership, there is only 1 ownership, but this is shared
ownership.
3. Generall" Perpetual
05 2wnership is generally not limited as to time unless there is
stipulation to the contrary.
08 2wnership is inherently unlimited, but it is not necessarily so.
2wnership can be restricted. These restrictions on ownership may be
imposed by the /tate or by *uridical transactions =i.e. contract>. 9n several
cases, the /C has upheld the validity o$ deed restrictions with regard to
how buildings are to be constructed.
Art. 429. The owner or lawful possessor of a thing has the right to
e-clude an" person from the enjo"ment and disposal thereof. Aor this
purpose% he ma" use such force as ma" be reasonabl" necessar" to repel or
prevent an actual or threatened unlawful ph"sical invasion or usurpation of
his propert".
0: This is ,nown as the doctrine o$ sel$4help.
30 This is one o$ the instances in which a person is allowed to ta,e the law
into his own hands and to use $orce. Normally, the use o$ violence is reserved to
the sovereign power o$ the state.
61 'rticle %: is similar to 'rticle 11, B%
C
o$ the -evised Denal Code.
3 -e.uisites
1. Derson who employs $orce or violence must be the owner =actual or presumed>
or a law$ul possessor
. That person must be in actual physical possession
*
'rticle 11. <usti!8ing circumstances. G The $ollowing do not incur any criminal liability<
%. 'ny person who, in order to avoid an evil or in*ury, does an act which causes damage to
another, provided that the $ollowing re.uisites are present<
First. That the evil sought to be avoided actually e(ists&
/econd. That the in*ury $eared be greater than that done to avoid it&
Third. That there be no other practical and less harm$ul mean o$ preventing it.
3! The right in 'rticle %: is a possessory right only.
3% ' owns land in Nasugbu. ' sees @s goons. @ tells ' to get out. '
success$ully thwarts the invasion. @s goons are in*ured. Can ' be
success$ully charged with physical in*uries) No, i$ reasonable $orce was
used.
65 9n the same e(ample, @s goons succeeds in throwing out '. '
comes bac, and in$licts $orce. 9s this allowed) No, ' is not in physical
possession o$ the land. 's remedy is to go to court under 'rticle %!!
.
!. There must be actual or imminent aggression
! 2nly reasonable $orce is employed by the owner or law$ul possessor
Art. 430. :ver" owner ma" enclose or fence his land or tenements b"
means of walls% ditches% live or dead hedges% or b" an" other means without
detriment to servitudes constituted thereon.
33 The right o$ an owner to enclose his tenement is limited by the servitudes
e(isting on it.
35 9n Lunod vs. 9eneses, the owner o$ the lower tenement created a
structure impeding the $low o$ water $rom the upper tenement to the lower
tenements. Thus, the upper tenements were $looded. /C said that a person could
enclose his property to obstruct the natural $low o$ waters $rom the upper
tenements.
Art. 431. The owner of a thing cannot make use thereof in such
manner as to injure the rights of a third person.
38 The owner may use property only in such a manner that it does not in*ure
others ? sic utere tuo ut alienum non laedas.
3: This encapsulates everything in the law on things.
Art. 432. The owner of a thing has no right to prohibit the
interference of another with the same% if the interference is necessar" to
avert an imminent danger and the threatened damage% compared to the
damage arising to the owner from the interference% is much greater. The
owner ma" demand from the person benefited indemnit" for the damage to
him.
50 This is basically the same rule as 'rticle 11, B%% o$ the -evised Denal Code
? prevention o$ a greater in*ury.
51 -e.uisites<
0 The inter$erence must be necessary to avert imminent danger.
1 The threatened damage must be greater than the damage caused to the
owner.
2nly such inter$erence as is necessary shall be made in order to avert the
damage.
_
Art. *((. 'ctual possession under claim o$ ownership raises disputable presumption o$
ownership. The true owner must resort to *udicial process $or the recovery o$ the property.
5 'n e(ample o$ 'rticle %! is a case in criminal law. 9n that case a car was
burning near a gas station. The car was pushed away $rom the gar station.
Aowever in the process, a house was burned.
5! @ is running away $rom drug addicts. @ passes a house. @ smashes the
door and is able to save himsel$. @s actions are *usti$ied. @ is not guilty o$
malicious mischie$ since @ was trying to prevent in*ury to himsel$.
5% General *ule+ Compensation may be demanded by the property owner.
50 Exception: No compensation i$ the in*ury is caused by the property owner
and the person who intervened was not at $ault.
53 @ is drun,. @ is wal,ing home and singing O@ayan IoP. @ passes Ms
house. M has a +oberman. The +oberman attac,s @. @ stabs the +oberman
with a /wiss army ,ni$e. +id @ act under 'rticle %!) Hes. +oes @ have to pay)
No, because the danger came $rom the property itsel$, the +oberman, and it was
not @s $ault.
55 @ sees +oberman sleeping. @ starts shouting at the +oberman. @ ,ic,s
the dog. +og attac,s @. @ stabs the dog. @ is *usti$ied in ,illing the dog under
'rticle %!. @ has a right to de$end himsel$. Aowever, @ has to pay M since @
provo,ed the dog.
Art. 433. Actual possession under claim of ownership raises
disputable presumption of ownership. The true owner must resort to judicial
process for the recover" of the propert".
58 'ssuming that the possessor claiming the ownership is illegitimate, the
true owner =not in possession> must go to court. Ae cannot apply the doctrine o$
sel$4help under 'rticle %: since he is not in possession. 'rticle %!! applies when
the plainti$$ is not in possession o$ the property.
5: -emedies
0 'ction $or $orcible entry
80 The action o$ $orcible entry is $or the recovery o$ the material or
physical possession and must be brought in the ETC within 1 year $rom the
date o$ the $orcible entry.
) Accion pu5liciana
81 ' plenary action $or the recovery o$ the possession o$ real estate,
upon mere allegation and proo$ o$ a better right thereto, and without
allegation o$ proo$ o$ title. This action can only be brought a$ter the
e(piration o$ 1 year.
% Accion reivindicatoria
8 'n action whereby the plainti$$ alleges ownership over a parcel o$
land and see,s recovery o$ its possession.
! Quieting o$ title
Art. 476. 0henever there is a cloud on title to real propert" or
an" interest therein% b" reason of an" instrument% record% claim%
encumbrance or proceeding which is apparentl" valid or effective but
is in truth and in fact invalid% ineffective% voidable% or unenforceable%
Professor Ruben F. Balane Pa)e */, of +,-
and ma" be prejudicial to said title% an action ma" be brought to
remove such cloud or to .uiet the title.
An action ma" also be brought to prevent a cloud from being
cast upon title to real propert" or an" interest therein.
Art. 477. The plaintiff must have legal or e.uitable title to% or
interest in the real propert" which is the subject matter of the action.
9e need not be in possession of said propert".
Art. 478. There ma" also be an action to .uiet title or remove a
cloud therefrom when the contract% instrument or other obligation has
been e-tinguished or has terminated% or has been barred b" e-tinctive
prescription.
Art. 479. The plaintiff must return to the defendant all benefits
he ma" have received from the latter% or reimburse him for e-penses
that ma" have redounded to the plaintiff;s benefit.
Art. 480. The principles of the general law on the .uieting of
title are hereb" adopted insofar as the" are not in conflict with this
Code.
Art. 481. The procedure for the .uieting of title or the removal
of a cloud therefrom shall be governed b" such rules of court as the
@upreme Court shall promulgated.
8! ;i,e accion pu5liciana, it involves only real property and is either
curative or preventive. "nli,e accion pu5liciana, .uieting o$ title applies to
both ownership and possession. 9n .uieting o$ title, the complaint must
allege the e(istence o$ an apparently valid or e$$ective instrument or other
claim which is in reality void, ine$$ective, voidable or unen$orceable.
8% 'rticle %53 seems to interchange removal o$ a cloud with .uieting o$
title. 9n common law, there is a distinction. "nder common law, an action
to .uiet title must set $orth an adverse claim, but it must not be speci$ic.
2nly a general claim is made. 'n action to remove a cloud re.uires a
speci$ic claim.
80 'rticle %53 can either be a preventive =B> or a remedial action
=B1>.
83 Quieting o$ title is a =uasi in rem action.
85 9$ the plainti$$ in an action to .uiet title is in possession o$ the
property, then the action to .uiet title is imprescriptible =?a8a vs. ;A>.
88 's long as a person is in possession o$ the property, it is presumed that
the person in possession is the owner. The burden is on the challenger to prove
otherwise. The 1
st
sentence o$ 'rticle %!! is similar to 'rticle 0%1
.
_
Art. $*). ' possessor in the concept o$ owner has in his $avor the legal presumption that he
possesses with a *ust title and he cannot be obliged to show or prove it.
Professor Ruben F. Balane Pa)e */- of +,-
89 Aowever, under 'rticle 11!1
$or purposes o$ prescription, *ust title is not

presumed. 9$ one see,s to ac.uire title by prescription, the burden is on the
applicant claiming to be the owner. 9n 'rticle 11!1, it is the possessor who is the
applicant. The possessor is the one who has the burden to prove that he ac.uired
the property through prescription. 9t is not presumed. 9n 'rticles %!! and 0%1,
the possessor does not claim to own it by prescription. The possessor ta,es a
de$ensive stance.
Art. 434. ,n an action to recover% the propert" must be identified% and
the plaintiff must rel" on the strength of his title and not on the weakness of
the defendant;s claim.
:0 Two things must be proved in an accion reivindicatoria<
0 The identity o$ the property
1 Dlainti$$s title to it
Art. 435. 2o person shall be deprived of his propert" e-cept b"
competent authorit" and for public use and alwa"s upon pa"ment of just
compensation.
@hould this re.uirement be not first complied with% the courts shall
protect and% in a proper case% restore the owner in his possession.
:1 This is not really part o$ civil law. This is merely an adoption o$ the
Constitutional provision on eminent domain.
Art. 436. 0hen an" propert" is condemned or sei$ed b" competent
authorit" in the interest of health% safet" or securit"% the owner thereof shall
not be entitled to compensation% unless he can show that such condemnation
or sei$ure is unjustified.
: "nder police power, the state deprives the individual o$ the property
without *ust compensation.
:! D has a pair o$ soc,s which he has been wearing $or 5 months. 9t is
spreading numerous diseases. The state can ta,e the pair o$ soc,s to burn. 9n
doing so, there is no need $or compensation.
:% 9$ the state wants to do research on germ war$are, and the state ta,es the
soc,s and its germs, the state should compensate D.
Art. =8C. The owner of a parcel of land is the owner of its surface and
of ever"thing under it% and he can construct thereon an" works or make an"
plantations and e-cavations which he ma" deem proper% without detriment
to servitudes and subject to special laws and ordinances. 9e cannot
complain of the reasonable re.uirements of aerial navigation.
:0 9n -oman law there is an old saying, O;u"us est solum e"us est us=ue ad
coelum et ad in!eros =the owner o$ a piece o$ land owns everything above and
below it to an inde$inite e(tent>.P This is not true anymore. 2therwise, airplanes
would commit aerial trespass. Aowever, it cannot be denied that the landowner
_
Art. ))(). For the purposes o$ prescription, *ust title must be proved& it is never presumed.
owns the land, the earth and the air. 2therwise, his ownership is useless. #here
do you draw the balance) The property owner owns the space and subsoil as $ar
as is necessary $or his practical interest and ability to assert dominion. @eyond
this, the owner has nothing. This would depend on a case to case basis.
Art. 438. 9idden treasure belongs to the owner of the land% building%
or other propert" on which it is found.
2evertheless% when the discover" is made on the propert" of another%
or of the @tate or an" of its subdivisions% and b" chance% one/half thereof
shall be allowed to the finder. ,f the finder is a trespasser% he shall not be
entitled to an" share of the treasure.
,f the things found be of interest to science of the arts% the @tate ma"
ac.uire them at their just price% which shall be divided in conformit" with the
rule stated.
Art. 439. G" treasure is understood% for legal purposes% an" hidden
and unknown deposit of mone"% jewelr"% or other precious objects% the
lawful ownership of which does not appear.
:3 9$ you $ind treasure in your land, the treasure is yours.
:5 #hen a person $inds treasure in a land that is not his, Z goes to the $inder
and Z goes to the owner o$ the land, building or other property.
:8 -e.uisites #hen a Derson Finds Treasure in a ;and That is Not Ais
0 The deposit must be hidden and un,nown ='rticle %!:>.
1 There is no law$ul owner.
+iscovery is by chance ='rticle %!8>.
:: There is debate as to what chance means. 2ne school o$ thought
thin,s that chance means there was an intent to $ind treasure e(cept that
$inding it was serendipitous. 'nother school o$ thought is that the $inder
should not have no intentions in the $irst place to loo, $or treasure.
! +iscoverer must not be a trespasser.
'44 Accession
101 'ccession is not a mode o$ ownership. 9t is a mere concomitant
right o$ ownership. 9t is a mere incident or conse.uence o$ ownership.
Art. 440. The ownership of propert" gives the right b"
accession to ever"thing which is produced thereb"% or which is
incorporated or attached thereto% either naturall" or artificiall".
10 The law wisely does not de$ine accession. 9t merely tells us what
accession does.
10! Iinds o$ 'ccession
A. Accession +iscreta
10% The right pertaining to the owner o$ a thing over everything
produced thereby ='rticle %%>
4 2atural fruits
100 Natural $ruits are the spontaneous products o$ the soil, and
the young and other products o$ animals.
103 @ owns a male 6erman /hepherd. E owns a $emale 6erman
/hepherd. The dogs breed. To whom does the litter go) To the
$emale since birth $ollows the womb =partus re=uites ventreim>.
' ,ndustrial fruits
105 9ndustrial $ruits are those produced by lands o$ any ,ind
through cultivation or labor.
6 Civil fruits
108 Civil $ruits are the rents o$ buildings, the price o$ leases o$
lands and other property and the amount o$ perpetual or li$e
annuities or other similar income.
10: /toc, dividends are civil $ruits being surplus pro$it (-ac#rac#
vs. +ei!ert).
110 General *ule+ Fruits belong to the owner.
111 Exception: The $ruits do not belong to the owner in the
$ollowing instances<
1. Dossessor in good $aith ='rticle 0%%
>
0 "su$ruct
1 ;ease
2 'ntichresis ='rticle 1!
>
! Dledge
G. Accession continua
11 The right pertaining to the owner o$ a thing over everything
that is incorporated or attached thereto either naturally or arti$icially.
1. ,mmovables
0 3n+ustrial ='rticles %%04%03>
Art. 445. 0hatever is built% planted or sown on the
land of another and the improvements or repairs made
thereon% belong to the owner of the land% subject to the
provisions of the following articles.
_
Art. $**. ' possessor in good $aith is entitled to the $ruits received be$ore the possession is
legally interrupted.
Natural and industrial $ruits are considered received $rom the time they are gathered or
severed.
Civil $ruits are deemed to accrue daily and belong to the possessor in good $aith in that
proportion.
'rt. 1!. @y the contract o$ antichresis the creditor ac.uires the right to receive the $ruits o$
an immovable o$ his debtor, with the obligation to apply them to the payment o$ the interest, i$
owing, and therea$ter to the principal o$ his credit.
Art. 446. All works% sowing% and planting are
presumed made b" the owner and at his e-pense% unless the
contrar" is proved.
0 -uilding
) Planting
% +o4ing
(,ote: I also included Dean ;8nt#ia RoxasBdel ;astilloAs c#arts in our civil la4 revie4er
since t#ose c#arts are more complete. 3o4ever I retained Pro!essor -alaneAs c#arts
since t#e8 are 5etter as memor8 aids. Dean del ;astilloAs c#arts come !irst.)
'st case+
!andowner is the builderMplanterMsower and is using the materials of another.
Art. 447. The owner of the land who makes thereon% personall" or
through another% plantings% constructions or works with the materials of
another% shall pa" their value3 and% if he acted in bad faith% he shall also be
obliged to the reparation of damages. The owner of the materials shall have the
right to remove them onl" in case he can do so without injur" to the work
constructed% or without the plantings% constructions or works being destro"ed.
9owever% if the landowner acted in bad faith% the owner of the materials ma"
remove them in an" event% with a right to be indemnified for damages.
!A2D#02:* ,@ T9:
G?,!D:*MP!A2T:*M@#0:*
#02:* #A T9: <AT:*,A!@
Goo+ )ait"
Can ac.uire the materials provided he pays
$or the value thereo$.
Goo+ )ait"
Aas the<
1. -ight to receive payment $or value o$
the materials& 2-
. ;imited right o$ removal i$ there would
be no in*ury to wor, constructed, or
without plantings or constructions being
destroyed ='rticle %%5>
=a+ )ait"
Can ac.uire the materials provided he pays
the value thereo$ plus damages.
Goo+ )ait"
Aas the<
0 -ight to receive payment $or value o$
materials plus damages& 2-
1 'bsolute right o$ removal o$ the wor,
constructed in any event =whether or
not substantial in*ury is caused> plus
damages
Goo+ )ait"
Can ac.uire the materials without paying
$or the value thereo$ and entitled to
conse.uential damages due to the de$ects
o$ the materials
=a+ )ait"
;oses the materials completely without
receiving any indemnity
=a+ )ait" =a+ )ait"
Treat as i$ both are in good $aith.
LAN# "NER IS B(IL#ER>PLANTER>S"ER "NER "F $ATERIAL

Goo+ )ait" Goo+ )ait"
0 ;imited right o$ removal i$ there
would be no in*ury to wor, constructed, or
without plantings or constructions being
destroyed ='rticle %%5>& or
1 -ight to receive payment $or value
o$ the materials
=a+ )ait" Goo+ )ait"
0 -ight to receive payment $or value
o$ materials plus damages& or
1 'bsolute right o$ removal o$ the
wor, constructed in any event plus
damages
Goo+ )ait"
-ight to ac.uire the improvements without
paying indemnity plus damages
=a+ )ait"
=a+ )ait"
(+ame as t#oug# acted in good !ait# under
Article *$()
=a+ )ait"
Article *$()
11! The land owner ? builderKplanterKsower is in good $aith i$ he believes that the land
belongs to him and he is ignorant o$ any de$ect or $law in his title and he does not ,now
that he has no right to use such materials. @ut when his good $aith is coupled with
negligence, he is liable $or damages.
11% The land owner ? builderKplanterKsower is in bad $aith i$ he ma,es use o$ the land
or materials which he ,nows belong to another.
110 The owner o$ the materials is in good $aith i$ he did not ,now that another was
using his materials, or granting that he did ,now, i$ he in$ormed the user o$ the
ownership and made the necessary prohibition.
113 The owner o$ the materials is in bad $aith i$ he allows another to use the materials
without in$orming him o$ the ownership thereo$.
115 9ndemni$ication $or damages shall comprehend not only the value o$ the loss
su$$ered but also that o$ the pro$its which the obligee $ailed to reali7e.
`
Art. *$(. 9$ there was bad $aith, not only on the part o$ the person who built, planted or sowed
on the land o$ another, but also on the part o$ the owner o$ such land, the rights o$ one and the
other shall be the same as though both had acted in good $aith.
9t is understood that there is bad $aith on the part o$ the landowner whenever the act was
done with his ,nowledge and without opposition on his part.
118 Pro5lem: Eay the land owner ? builderKplanterKsower choose to return the
materials instead o$ reimbursing their value even without the consent o$ the owner o$ the
materials)
9t depends<
0 9$ no damage has been made to the materials, or they have not been
trans$ormed as a result o$ the construction, they may be returned at the land
owners e(pense.
1 9$ damage has been made or there has been trans$ormation, they cannot
be returned anymore.
11: Pro5lem: /uppose the land owner ? builderKplanterKsower has already
demolished or removed the plantings, constructions or wor,s, is the owner o$ the
materials still entitled to claim them)
There are di$$erent opinions on this matter but the best rule seems to be that the 2E
is still entitled to get them since the law ma,es no distinction. Eoreover, the land
owner may insist on returning them $or evidently there is no accession.
6
nd
case+
GuilderMPlanterM@ower builds% plants% or sows on another(s land using his own
materials.
Art. 448. The owner of the land on which an"thing has been built% sown
or planted in good faith% shall have the right to appropriate as his own the
works% sowing or planting% after pa"ment of the indemnit" provided for in
articles )=B and )=D% or to oblige the one who built or planted to pa" the price
of the land% and the one who sowed% the proper rent. 9owever% the builder or
planter cannot be obliged to bu" the land if its value is considerabl" more than
that of the building or trees. ,n such case% he shall pa" reasonable rent% if the
owner of the land does not choose to appropriate the building or trees after
proper indemnit". The parties shall agree upon the terms of the lease and in
case of disagreement% the court shall fi- the terms thereof.
!A2D #02:* G?,!D:*MP!A2T:*M@#0:* ,@ T9: #02:*
#A T9: <AT:*,A!@
Goo+ )ait"
Aas the option to<
0 To appropriate or ac.uire whatever
has been built, planted or sown a$ter
paying indemnity which includes
necessary e(penses and use$ul
e(penses.
9$ he wishes to appropriate the
lu(urious improvement, he must also
pay the lu(urious e(penses.
2-
Goo+ )ait"
1ntitled to receive indemnity $or necessary,
use$ul and lu(urious e(penses =i$ the land
owner appropriates the lu(urious
improvements> and has a right o$ retention
over the land without having to pay $or the
rent until the land owner pays the
indemnity
Can remove use$ul improvements provided
it does not cause any in*ury
9$ the land owner does not appropriate the
lu(urious improvements, he can remove
the same provided there is no in*ury to the
principal thing
0 To obligate the builderKplanter to
pay the price o$ the land and the sower
to pay the proper rent. 3o4ever the
land owner cannot obligate the builderK
planter to buy i$ the value o$ land is
more then the building or planting.
To purchase the land at $air mar,et value
when the value is not considerably more
than the value o$ the builder or trees
9$ the value o$ the land is considerably
more than the value o$ the building or
trees, he cannot be compelled to buy the
land& in such case, he shall pay reasonable
rent i$ the land owner does not choose
option 1.
9$ he cannot pay the purchase price o$ the
land, the land owner can re.uire him to
remove what has been built or planted.
9$ he cannot pay the rent, the land owner
can e*ect him $rom the land.
=a+ )ait"
To ac.uire whatever has been built, planter
or sown by paying the indemnity plus
damages
Goo+ )ait"
9$ land owner ac.uires whatever has been
built, planted or sown, he must be
indemni$ied o$ the value plus damages
9$ land owner does not ac.uire, he can
remove whatever has been built or planted
whether or not it will cause any in*ury and
is entitled to damages.
9$ land owner does not ac.uire, he cannot
insist on purchasing the land.
Goo+ )ait"
Aas the option<
1. To ac.uire whatever has been built,
planter or sown without paying $or
indemnity e(cept necessary e(penses
$or the preservation o$ the land only
and lu(urious e(penses i$ he decides to
ac.uire the lu(urious ornaments plus
damages
=a+ )ait"
;oses what has been built, planted or
sown.
1ntitled to reimbursement $or necessary
e(penses $or the preservation o$ the land
but has no right o$ retention.
Not entitled to reimbursement $or use$ul
e(penses and cannot remove the use$ul
improvements even i$ the removal will not
cause any in*ury
Not entitled to reimbursement $or lu(urious
e(penses e(cept when the land owner
ac.uires the lu(urious improvements, the
value o$ which is the one at the time the
land owner enters possession =the
depreciated value>
Can remove lu(urious improvements i$ it
will not cause in*ury and ;2 does not want
to ac.uire them.
. To compel the builderK planter to pay
the price o$ the land and the sower to
pay the proper rent plus damages
Eust pay the price o$ the land or the rent
plus damages
!. To demand the demolition or removal o$
the wor, at the e(pense o$ the
builderKplanterK sower
Eust remove lu(urious improvements i$ it
will not cause in*ury and ;2 does not want
to ac.uire them.
=a+ )ait" =a+ )ait"
Treat as i$ both are in good $aith.
10 9n applying 'rticle %%8, the land owner, i$ in good $aith, should be given the $irst
option because he is the owner o$ the land especially i$ he is dealing with a person in bad
$aith. Ais right is older and by the principle o$ accession, he is entitled to the ownership
o$ the accessory thing.
11 The land owner is in good $aith<
0 9$ he is ignorant o$ the builderKplanterKsowers act
1 1ven i$ he did ,now, he e(pressed his ob*ection
9$ he believed that the builderKplanterKsower has a right to construct, plant
or sow
2therwise, he shall be in bad $aith.
1 The builderKplanterKsower is in good $aith i$ he thought that the land was his.
LAN# "NER
B(IL#ER>PLANTER>S"ER IS THE "NER "F
THE $ATERIALS
Goo+ )ait"
0 ;and owner can ac.uire the
improvement by paying& or
1 ;and owner can obligate
builderKplanter to buy the land or collect
Goo+ )ait"

`
rent $rom sower. 3o4ever land owner
cannot obligate the builderKplanter to buy
i$ the value o$ land is more then the
building or planting.
0 -emove materials plus damages& or
1 +emand payment $or materials plus
damages
Goo+ )ait"
.ptions
0 'ppropriate wor,s without
indemnity plus damages& or
1 +emolish plus damages& or
Compel @D/ to buy land regardless
o$ the value o$ the land and the @D, plus
damages
.5ligations
0 ;and owner must pay $or necessary
e(penses $or preservation.
1 ;and owner must pay @D/ e(penses
under 'rticle %%!
i$ applicable
=a+ )ait"
=a+ )ait"
Article *$()
=a+ )ait"
Article *$()
8
rd
case+
GuilderMPlanterM@ower builds% plants% or sows on another(s land with materials
owned b" third person
!A2D #02:* G?,!D:*MP!A2T:*M@#0:* #02:* #A T9: <AT:*,A!@
Goo+ )ait"
Aas the option
0 To ac.uire whatever
has been built, planted
or sown provided he
pays the indemnity
=which includes the
value o$ what has been
built, planted or sown
plus value o$ the
materials>
Goo+ )ait"
To receive indemnity $rom
the land owner and has a
right o$ retention over the
land until the land owner
pays
Goo+ )ait"
the builderKplanterKsower
who is principallyK primarily
liable. 9$ the builderK
planterKsower is insolvent,
then demand indemnity
$rom land owner who is
subsidiarily liable. @ut has
no right o$ retention against
Art. **(. Ae who receives the $ruits has the obligation to pay the e(penses made by a third
person in their production, gathering, and preservation.
and more so with the land
owner
1 To oblige the
builderK planterKsower to
buy the land unless the
value thereo$ is
considerably more than
the value o$ the building
or trees
To buy the land To receive indemnity $rom
only. The land owner has
no subsidiary liability. @ut
has right o$ retention.
2-
To remove materials i$ there
will be no in*ury on the
building or trees
'N+
Aas a material rent lien
against the builderKplanterK
sower $or the payment o$
the value o$ the materials
Goo+ )ait"
Aas the option
or sown provided he
pays the indemnity
=which includes the
value o$ what has been
built, planted or sown
plus value o$ the
materials>
Goo+ )ait"
the land owner and has a
right o$ retention over the
land until the land owner
pays
=a+ )ait"
#hatever is the choice o$
the land owner
1. Ae loses the materials in
$avor o$ the
builderKplanterK sower
'N+
. Ae has no right to
receive indemnity $rom
the @D/
1 To oblige the
builderK planterKsower to
buy the land unless the
value thereo$ is
considerably more than
the value o$ the building
or trees
To buy the land
Goo+ )ait"
Aas the option
or sown without paying
indemnity e(cept
necessary e(penses, i$
he should ac.uire
lu(urious improvements
=a+ )ait"
;oses what has been built,
planted or sown but he is
entitled to be indemni$ied
$or necessary e(penses and
lu(urious e(penses should
the land owner ac.uire
lu(urious ornaments
Aas no right o$ removal
even i$ it will not cause any
in*ury
=a+ )ait"
(+ince 5ot# 5uilderHplanterH
so4er and t#e o4ner o! t#e
materials are in 5ad !ait#
treat t#em as i! 5ot# in
good !ait#)
#hatever is the choice o$
the land owner, he has the
right to receive indemnity
$or the value o$ the
materials $rom the builderK
planterKsower only. The
land owner has no
subsidiary liability
whatsoever.
9$ land owner chooses
option 1, he has no right to
remove materials even i$
there will be no in*ury.
9$ land owner chooses
option , he has the right o$
removal provided it does
not cause any in*ury to the
property to which it is
attached.
Aas liability $or damages to
whoever ends up owning
the building $or the in$erior
.uality o$ materials.
1 To oblige the
builderK planter to pay
the price o$ the land and
the sower to pay the
proper rent
To pay the price o$ the land
To demolish or
remove what has been
built or planted
Cannot do anything about it
so he must remove
=a+ )ait"
To ac.uire what has been
built, planted or sown by
paying the indemnity plus
damages to builderKplanterK
sower
Goo+ )ait"
land owner plus damages
Cannot insist on purchasing
the land
Goo+ )ait"
To receive indemnity $or
value o$ materials $rom
builderKplanterKsower
principally or $rom land
owner in case the builderK
planterKsower is insolvent
=subsidiary liability>
=a+ )ait"
To ac.uire what has been
built, planted or sown by
paying the indemnity plus
damages to builderKplanterK
sower
Goo+ )ait"
land owner plus damages
Cannot insist on purchasing
the land
=a+ )ait"
No right to receive
indemnity $or value o$
materials $rom builderK
planterKsower nor $rom land
owner who ends up owning
the building or trees.
!A2D #02:* G?,!D:*MP!A2T:*M@#0:* #02:* #A T9: <AT:*,A!@
Goo+ )ait" Goo+ )ait" Goo+ )ait"
1. 9$ the owner o$ the
materials does not
remove the materials
and the builderKplanterK
sower pays, the land
owner can ac.uire the
improvement by paying
the builderKplanterK
sower
. 9$ the owner o$ the
materials does not
remove the materials,
and the builderKplanterK
sower pays, the land
owner can obligate the
builderKplanter to buy
the land or collect
rent $rom sower.
Aowever the land owner
cannot obligate the
builderKplanter to
buy i$ the value o$ land
is more then the
building or planting.
!. The land owner is
subsidiarily liable to the
owner o$ the materials.
0 ;imited right o$
removal i$ there would
be no in*ury to wor,
constructed, or without
plantings or
constructions being
destroyed ='rticle %%5>& or
1 -ight to receive
payment $or value o$
the materials $rom
builderKplanterK sower. ;and
owner is subsidiarily
liable.
Goo+ )ait"
0 ;and owner can
ac.uire the
improvement by
paying& or
1 ;and owner can
obligate builderKplanter
to buy the land or collect
rent $rom sower.
Aowever land owner
cannot obligate the
Goo+ )ait"
Ieep what was built,
planted or sown without
indemnity to the owner o$
the materials plus damages
$rom the owner o$ the
materials
=a+ )ait"
;ose the materials to the
without right to indemnity
builderK planter to buy i$
the value o$ land is more
then the building or
planting.
;2 not subsidiary
liable $or cost o$
materials
Goo+ )ait"
.ptions
0 'ppropriate wor,s
without indemnity plus
damages& or
1 +emolish plus
damages& or
Compel
land regardless o$ the
value o$ the land and
the sower to pay rent,
plus damages
.5ligations
0 ;and owner must
pay $or necessary
e(penses $or
preservation.
1 ;and owner must
pay
e(penses under 'rticle
%%!
C
i$ applicable
=a+ )ait" =a+ )ait"
-ight to receive payment
$or value o$ the materials
=a+ )ait"
(+ame as t#oug# acted in
good !ait# under Article
*$(
)
=a+ )ait"
*$()
=a+ )ait"
*$()
=a+ )ait"
/ubsidiarily liable to the
owner o$ the materials
$or value o$ materials
Goo+ )ait"
0 -emove
improvements plus
damages against the land
Goo+ )ait"
0 -emove materials i$
possible without in*ury
*
Art. **(. Ae who receives the $ruits has the obligation to pay the e(penses made by a third
person in their production, gathering, and preservation.
owner& or
1 +emand payment $or
improvement plus damages
1 Collect value o$
materials $rom
builderKplanterK sower.
;and owner is subsidiarily
liable
=a+ )ait"
0 9$ the owner o$ the
materials does not
remove the materials
and the
pays, the land owner
can ac.uire the
the
materials does not
and the
pays, the land owner
can obligate the
the land or collect rent
$rom the sower.
Aowever, the land
owner cannot obligate
the @D to buy i$ the
value o$ land is more
planting.
The land owner is
0 -ight to receive
payment $or value o$
materials $rom the
builderKplanterKsower and
the land owner is
subsidiarily liable plus
damages& or
1 'bsolute right o$
removal o$ the wor,
constructed in any event
plus damages
Goo+ )ait"
materials does not
remove pays, the land
owner can ac.uire the
the builderK
planterKsower.
materials does not
and the builder, planter
or sower pays, the land
owner can obligate the
0 -emove materials i$
possible without in*ury plus
damages against builderK
planterKsower.
1 Collect value o$
materials $rom
builderKplanterKsower plus
damages against the
builderKplanterKsower. The
land owner is subsidiarily
liable $or value o$ the
materials
the land or collect rent
$rom sower. Aowever
the land owner cannot
obligate the
builderKplanter to buy i$
the value o$ land is more
planting.
;and owner is
0 -ight to ac.uire the
materials without paying
indemnity plus damages
1 -emove
improvement plus
damages& or
+emand payment $or
improvement plus
damages
=a+ )ait"
;oses right to materials
without right to indemnity
1! 9$ the option is with the land owner =i.e. to buy the improvement or sell the land>,
the land owner cannot re$use to e(ercise that option. The court may compel the land
owner to e(ercise such option.
1% 9$ the land owner opts to buy the improvements $rom the builderKplanterKsower,
the land owner must pay the value o$ the builderKplanterKsower. @uilderKplanterKsower
has the right o$ retention until the land owner pays.
10 9$ the land owner chooses to buy the improvement, the builderKplanterKsower can
sue to re.uire the land owner to pay him. The obligation has now been converted to a
monetary obligation.
13 There is no trans$er o$ ownership o$ the improvements until the land owner pays
the builderKplanterKsower.
15 9n .rtiz vs. Ka8anan the /C said, O'll the $ruits that the builderKplanterKsower
may receive $rom the time that he is summoned, or when he answers the complaint,
must be delivered or paid by him to the owner or law$ul possessor. /uch is the time
when his good $aith has ceased. #hile the builderKplanterKsower retains the property
until he is reimbursed $or necessary and use$ul e(penses, all the $ruits the @D/ receives
$rom the moment his good $aith ceases must be de$erred or paid by him to the land
owner. The builderKplanterKsower may, however, secure the reimbursement o$ his
e(penses by using the $ruits to pay it o$$ =deduct the value o$ the $ruits he receives $rom
the time his good $aith ceases $rom the reimbursement due him>.
18 Dro$essor @alane doesnt agree with the ruling in .rtiz vs. Ka8anan. 9t seems
inconsistent to say that the builderKplanterKsower retains ownership o$ the improvement
until he is paid yet the $ruits derived $rom such improvement should go to the land
owner.
1: 9$ the land owner chooses to sell the land to the builderKplanter, the
builderKplanter will have to pay the value o$ the land based on the prevailing mar,et
value at the time o$ payment.
1!0 9$ the land owner chooses to sell the land and the builderKplanter is unable or
unwilling to pay, the ;and owner has ! options<
1. 'ssume a lessor4lessee relationship& or
. ;and owner can have the improvements removed and in the meantime demand
rental& or
!. ;and owner can have the land and the improvements sold at a public auction& the
proceeds o$ which shall be applied pre$erentially to the value o$ the land.
1!1 The land owner cannot compel the sower to buy the land. ;and owner can either
buy the improvement or demand rental.
1! 9$ the value o$ the land is considerably greater than the value o$ the improvement,
then the land owner can only choose between buying the improvement or demanding
rental $rom the builderKplanterKsower.
1 #atural ='rticles %054%30>
0 Alluvion or accretion ='rticle %05>
Art. 457. To the owners of lands adjoining the
banks of rivers belong the accretion which the" graduall"
receive from the effects of the current of the waters.
1!! 'rticle %05 applies only to lands ad*oining ban,s o$
rivers. 9t does not apply by analogy to lands ad*oining all
bodies o$ water. Aowever, 'rticle 8% o$ the ;aw o$ #aters
applies the same principle to la,es, streams and cree,s.
1!% The owners o$ lands ad*oining the ban,s o$ rivers
=riparian land> shall own the accretion which they gradually
receive.
1!0 'ccretion denotes the act or process by which a
riparian land gradually and imperceptively receives addition
made by the water to which the land is contiguous.
1!3 'lluvion re$ers to the deposit o$ soil.
1!5 -ationale $or this bene$it< to compensate the owners
$or the losses which they may su$$er by erosion due to the
destructive $orces o$ the water (?errer vs. -autista).
1!8 -e.uisites o$ 'ccretion
0 The accumulation o$ soil is gradual and imperceptible.
1 9t is the result o$ the action o$ the water o$ the river.
+eposits made by human intervention are
e(cluded.
! The land where the accretion ta,es place is ad*acent
to the ban, o$ the river.
1!: 'ccretion operates ipso "ure. Aowever, the additional
area is not covered by a Torrens title since it is not described
in the title. The riparian owner must register the additional
area.
Art. 458. The owners of estates adjoining ponds or
lagoons do not ac.uire the land left dr" b" the natural
decrease of the waters% or lose that inundated b" them in
e-traordinar" floods.
1%0 'rticle %08 is does not tal, o$ accession. #hen a
body o$ water dries up, the owner o$ the ad*oining estate
does not own the dried up land. There is no alluvion since
soil was not deposited in the ad*oining estate. /imilarly, i$
the land o$ the ad*oining owner should be $looded, such land
does not become part o$ the public dominion i$ the $lood will
subside.
) Avulsion
Art. 459. 0henever the current of a river% creek
or torrent segregates from an estate on its bank a
known portion of land and transfers it to another
estate% the owner of the land to which the segregated
portion belonged retains the ownership of it% provided
that he removes the same within two "ears.
1%1 'vulsion is the removal o$ a considerable
.uantity o$ soil $rom 1 estate and its anne(ation to
another by the perceptible action o$ water.
1% 9n alluvium, the accumulation o$ the soil is
gradual. The soil belongs to the owner o$ the property
where the soil attaches. The soil cannot be identi$ied.
1%! 9n avulsion, the accumulation o$ soil is sudden
and abrupt. The soil can be identi$ied. The soil belongs
to the owner o$ the property $rom where the soil was
ta,en. Aowever, the owner has to years to get the
soil. 9$ he does not get the soil within years, the owner
o$ the property where the soil currently is shall own the
soil.
1%% 'vulsion is a case o$ delayed accession (<-L
Re8es).
Art. 460. Trees uprooted and carried awa" b"
the current of the waters belong to the owner of the
land upon which the" ma" be cast% if the owners do
not claim them within si- months. ,f such owners
claim them% the" shall pa" the e-penses incurred in
gathering them or putting them in a safe place.
,.7E: 9n the case o$ uprooted trees there is no accession.
1%0 The owner o$ the land $rom which the trees
came $rom should claim the tree within 3 months. 'll
that 'rticle %30 re.uires is claim and not removing.
'lthough 'rt. %30 is silent, the owner o$ the tree should
remove the trees within a reasonable time. 9$ he does
not claim within 3 months, the land owner where the tree
is shall become the owner.
% ;#ange o! river course
Art. 461. *iver beds which are abandoned
through the natural change in the course of the waters
ipso .acto belong to the owners whose lands are
occupied b" the new course in proportion to the area
lost. 9owever% the owners of the lands adjoining the
old bed shall have the right to ac.uire the same b"
pa"ing the value thereof% which value shall not e-ceed
the value of the area occupied b" the new bed.
Art. 462. 0henever a river% changing its course
b" natural causes% opens a new bed through a private
estate% this bed shall become of public dominion.
Art. 463. 0henever the current of a river
divides itself into branches% leaving a piece of land or
part thereof isolated% the owner of the land retains his
ownership. 9e also retains it if a portion of land is
separated from the estate b" the current.
1%3 -e.uisites
0 The change in the river course must be
sudden
1 The change must be permanent
The change must natural
! The river bed must be abandoned by the
government
1%5 'ccording to commentators, this
re.uisite has been repealed by 'rticle %31.
Aowever, the #ater Code provides that the
government can only return the river to the old
bed i$ the government sees $it. This is possible
especially i$ there are already e(isting hydro4
electric plants and irrigation pro*ects.
% The river must continue to e(ist
148 Aas 'rticle %31 been superseded by J08
C
o$
the #ater Code)
J08 provides that the government has the option to let
the change o$ river course remain as is or to bring it
bac,. 9t also provides that the owners o$ a$$ected lands
=those who lost land> may underta,e to return the river
to the old bed provided they get a permit $rom the
government.
J08 does not contain the
nd
sentence o$ 'rticle %31. 9s
the
nd
sentence repealed)
'ccording to Dro$essor @alane, no it is not since they are
not inconsistent. Thus, the ad*acent owners o$ the old
bed can buy the old river bed.
1%: The old river bed according to 'rticle %31 and
J 08 shall be ac.uired by the people who lost their land
in proportion to their land lost. This is $air but it is
complicated. First, how do you compute the proportions)
/econd, what i$ the old river bed is $ar away)
100 The new river bed is a case o$ de !acto
eminent domain.
101 There is no accession under 'rticle %3!. The
river merely divides itsel$ into branches.
0 ?ormation o! island
Art. 464. ,slands which ma" be formed on the
seas within the jurisdiction of the Philippines% on
lakes% and on navigable or floatable rivers belong to
the @tate.
Art. 465. ,slands which through successive
accumulation of alluvial deposits are formed in non/
navigable and non/floatable rivers% belong to the
owners of the margins or banks nearest to each of
them% or to the owners of both margins if the island is
in the middle of the river% in which case it shall be
divided longitudinall" in halves. ,f a single island thus
formed be more distant from one margin than from
the other% the owner of the nearer margin shall be the
sole owner thereof.
*
Article $/. #hen a river or stream suddenly changes its course to traverse private lands, the
owners o$ the a$$ected lands may not compel the government to restore the river to its $ormer be&
nor can they restrain the government $rom ta,ing steps to revert the river or stream to its $ormer
course. The owners o$ the lands thus a$$ected are not entitled to compensation $or any damage
sustained thereby. Aowever, the $ormer owners o$ the new bed shall be the owners o$ the
abandoned bed in proportion to the area lost by each.
The owners o$ the a$$ected lands may underta,e to return the river or stream to its old bed
at their own e(pense& Provided That a permit there$or is secured $rom the /ecretary o$ Dublic
#or,s, Transportation and Communication and wor,s pertaining thereto are commenced within
two years $rom the change in the course o$ the river or stream.
10 "nder 'rticle %3%, there is no accession. 'll
belong to the state ? islands which are $ormed on
Dhilippine seas, on la,es and on navigable rivers. The /C
however has not said what ,ind o$ property such the
islands were ? patrimonial or o$ the public dominion.
10! "nder 'rticle %30, i$ the island is $ormed in a
non4navigable river, there is accession. 9$ the island is
$ormed in a navigable river, then it belongs to the state.
154 J0:
o$ the #ater Code de$ines what is

navigable.
. <ovables
0 A+6unction or con6unction ='rticles %334%51>
Art. 466. 0henever two movable things belonging to
different owners are% without bad faith% united in such a wa"
that the" form a single object% the owner of the principal
thing ac.uires the accessor"% indemnif"ing the former owner
thereof for its value.
Art. 467. The principal thing% as between two things
incorporated% is deemed to be that to which the other has
been united as an ornament% or for its use or perfection.
Art. 468. ,f it cannot be determined b" the rule given
in the preceding article which of the two things incorporated
is the principal one% the thing of the greater value shall be so
considered% and as between two things of e.ual value% that
of the greater volume.
,n painting and sculpture% writings% printed matter%
engraving and lithographs% the board% metal% stone% canvas%
paper or parchment shall be deemed the accessor" thing.
Art. 469. 0henever the things united can be
separated without injur"% their respective owners ma"
demand their separation.
2evertheless% in case the thing united for the use%
embellishment or perfection of the other% is much more
precious than the principal thing% the owner of the former
ma" demand its separation% even though the thing to which
it has been incorporated ma" suffer some injur".
Art. 470. 0henever the owner of the accessor" thing
has made the incorporation in bad faith% he shall lose the
thing incorporated and shall have the obligation to indemnif"
_
Article $2. -ivers, la,es and lagoons may, upon the recommendation o$ the Dhilippine Coast
6uard, be declared navigable either in whole or in part.
the owner of the principal thing for the damages he ma"
have suffered.
,f the one who has acted in bad faith is the owner of
the principal thing% the owner of the accessor" thing shall
have a right to choose between the former pa"ing him its
value or that the thing belonging to him be separated% even
though for this purpose it be necessar" to destro" the
principal thing3 and in both cases% furthermore% there shall
be indemnit" for damages.
,f either one of the owners has made the
incorporation with the knowledge and without the objection
of the other% their respective rights shall be determined as
though both acted in good faith.
Art. 471. 0henever the owner of the material
emplo"ed without his consent has a right to an indemnit"% he
ma" demand that this consist in the deliver" of a thing e.ual
in kind and value% and in all other respects% to that
emplo"ed% or else in the price thereof% according to e-pert
appraisal.
100 There is ad*unction or con*unction when movables
are attached to each other such that separation is impossible
without in*ury. For e(ample, the paint o$ @ is used on the
canvass o$ C.
103 Gasic *ule+ 9$ separation is possible without in*ury,
then should separate. 9$ this is not possible, then ad*unction or
con*unction.
105 There are parties here< the owner o$ the principal
ob*ect and the owner o$ the accessory.
108 % /ituations<
1. @oth owner o$ the principal ob*ect and the owner o$ the
accessory are in good $aith
10: The owner o$ the principal ob*ect ac.uires the
thing but with the duty to indemni$y the owner o$ the
accessory. ='rticle %33>. Aowever, the owner o$ the
accessory has a right to demand separation even though
there may be damage i$ the accessory is more valuable.
. The owner o$ the principal ob*ect is in good $aith and the
owner o$ the accessory is in bad $aith.
130 The owner o$ the accessory loses the thing
plus is liable $or damages ='rticle %50>
!. The owner o$ the principal ob*ect is in bad $aith and the
owner o$ the accessory is in good $aith.
131 '2 has options<
a. +emand value o$ the accessory plus damages& or
Professor Ruben F. Balane Pa)e *,4 of +,-
b. +emand separation even i$ the principal will be
destroyed plus damages ='rticle %50, B>
%. 2wner o$ the principal ob*ect and the owner o$ the accessory
both in bad $aith
13 Treat as i$ both are in good $aith ='rticle %0!
by analogy>.
13! -ules to +etermine #hich is the Drincipal and
#hich is the 'ccessory
a. Drimary rule ? importance or purpose
13% For e(ample, the watch is the principal
=to tell time> while the bracelet is the accessory
=to wear>.
b. /econdary rule 4 value
c. Tertiary rule ? volume or mass
d. Fourth rule ? merits, utility, value =combination>
,.7E: 2ne normally does not go beyond the
nd
test.
130 Iinds o$ 'd*unction o$ Con*unction
0 1ngra$tment
1 'ttachment
a. !erruminatio
5. plum5atura
#eaving
! Dainting
% #riting
1 *oixtion or *on.usion ='rticles %5, %!!>
Art. 472. ,f b" the will of their owners two things of
the same or different kinds are mi-ed% or if the mi-ture
occurs b" chance% and in the latter case the things are not
separable without injur"% each owner shall ac.uire a right
proportional to the part belonging to him% bearing in mind
the value of the things mi-ed or confused.
Art. 473. ,f b" the will of onl" one owner% but in good
faith% two things of the same or different kinds are mi-ed or
confused% the rights of the owners shall be determined b"
the provisions of the preceding article.
,f the one who caused the mi-ture or confusion acted
in bad faith% he shall lose the thing belonging to him thus
mi-ed or confused% besides being obliged to pa" indemnit"
for the damages caused to the owner of the other thing with
which his own was mi-ed.
Professor Ruben F. Balane Pa)e *,* of +,-
133 Commi(tion re$ers to the mi(ture o$ solids =i.e. the
mi(ture o$ rice o$ di$$erent varieties>. Con$usion re$ers to the
mi(ture o$ li.uids =i.e. mi(ture o$ di$$erent gasoline>
135 -ules<
0 9$ caused by the will o$ the parties or by chance or by the will o$ 1 party but is in
good $aith, then there will be a co4ownership based on proportional value =not volume>.
1 9$ caused by the will o$ 1 party in bad $aith, then the party in bad $aith loses the
entire thing.
138 /ome commentators say that commi(tion or
con$usion is not a true case o$ accession since there is no
principal or accessory. 'lso, there is a co4ownership. 9n
accession, everything goes to 1 party.
5peci.ication ='rticle %5%>
Art. 474. #ne who in good faith emplo"s the material
of another in whole or in part in order to make a thing of a
different kind% shall appropriate the thing thus transformed
as his own% indemnif"ing the owner of the material for its
value.
,f the material is more precious than the transformed
thing or is of more value% its owner ma"% at his option%
appropriate the new thing to himself% after first pa"ing
indemnit" for the value of the work% or demand indemnit"
for the material.
,f in the making of the thing bad faith intervened% the
owner of the material shall have the right to appropriate the
work to himself without pa"ing an"thing to the maker% or to
demand of the latter that he indemnif" him for the value of
the material and the damages he ma" have suffered.
9owever% the owner of the material cannot appropriate the
work in case the value of the latter% for artistic or scientific
reasons% is considerabl" more than that of the material.
13: /peci$ication is the giving o$ a new $orm to another
persons material through the application o$ labor.
150 Aere there are parties< the material owner and the
ma,er.
151 % /ituations
1. @oth material owner and ma,er are in good $aith
15 Ea,er ac.uires the thing with the duty to
indemni$y the material owner ='rticle %5%, B1>.
15! Aowever, i$ the material is much more
precious then the material owner has options<
a. To appropriate the thing and pay the ma,er& or
b. To sell the material to ma,er
Professor Ruben F. Balane Pa)e *,. of +,-
. Ea,er is in bad $aith and the material owner is in good $aith
15% Eaterial owner has options ='rticle %50><
a. 'ppropriate the thing without indemnity to ma,er
plus damages& or
150 This option is not available i$ the value
o$ the wor, is considerably more than the
material.
b. /ell the material to ma,er plus damages
!. Ea,er is in good $aith and the material owner is in bad $aith
153 Ea,er appropriates without the duty to pay
the material owner plus damages ='rticle %50 by
analogy>.
%. Ea,er and the material owner are both in bad $aith
155 Treat both in good $aith ='rticle %0! by
analogy>.
,,. Co/#wnership
158 Co4ownership is the right o$ common dominion which or more persons
have in a spiritual =a.6.a. ideal or ali.uot> part o$ a thing which is not physically
divided.
15: 9n co4ownership, there is only 1 ownership, but ii is shared ownership.
180 1ach co4owner owns a $ractional or an ideal part o$ the ob*ect but they
cannot point to a speci$ic part o$ the ob*ect.
181 Co4ownership is not encouraged since it is very unwieldy. 9t is very easy
to have disagreements between co4owners.
'. /ources o$ Co42wnership
1. @y law
18 ;aw may mandate co4ownership =i.e. party wall>
. @y contract
!. @y chance
18! 1(amples are commi(tion or con$usion
%. @y occupation
18% 9n Punzalan vs. -oon Liat the /C said that the $ishermen are co4
owners o$ the whale they caught.
0. @y succession
180 Compulsory, testamentary, intestate
@. Characteristics o$ Co42wnership
0 Eore than 1 owner
1 1 physical unit or whole divided into ideal or $ractional shares
1ach $ractional share is de$inite in amount but not physically segregated $rom the
rest
Professor Ruben F. Balane Pa)e *,+ of +,-
! 's to the physical unit, each co4owner must respect the other co4owners in its
common use, en*oyment and preservation ='rticle %8!>
% 's to the ali.uot share, each co4owner holds absolute control ='rticle %:!>
0 No *uridical personality o$ its own
C. Co42wnership +istinguished $rom Dartnership
C#/#02:*@9,P PA*T2:*@9,P
Co4ownership may arise $rom other causes
=i.e. will or law>
Dartnerships are created only by agreement
or contract
The purpose o$ co4ownership is $or
collective en*oyment and to maintain the
unity and preservation o$ the thing owned
in common
The purpose o$ partnership is pro$it
9n co4ownership, there is no *uridical
personality distinct $rom the members
9n partnership, there is a *uridical
personality distinct $rom the members
' stipulation that a co4ownership be
created $or a period o$ more than 10 years
is void
' partnership may be created $or a period
o$ more than 10 years
9n co4ownership, a special authority is
needed $or representation among co4
owners
9n partnership, there is generally mutual
representation by the partners
9n a co4ownership there is $reedom o$
disposition o$ a co4owners share
9n a partnership, a partner cannot trans$er
his rights to !
rd
persons without the
consent o$ the others
+eath or incapacity o$ 1 o$ the co4owners
have no e$$ect on the e(istence o$ a co4
ownership
The partnership can be e(tinguished by the
death or incapacity o$ 1 o$ the partners
The distribution o$ pro$its is invariable in
co4ownership by virtue o$ 'rticle %80
The distribution o$ pro$its is sub*ect to
stipulation in partnerships
Art. 485. The share of the co/owners% in the benefits as well as in the
charges% shall be proportional to their respective interests. An" stipulation in
a contract to the contrar" shall be void.
The portions belonging to the co/owners in the co/ownership shall be
presumed e.ual% unless the contrar" is proved.
183 ' co4owners share in the $ruits and e(penses is always dependent on the
co4owners interest. 'ny agreement to the contrary is void.
185 ' ma,es a will. ' gives $arm to Mason, Mo*i and -on in e.ual shares.
Aowever, the will states that the sharing in $ruits and e(penses in not e.ual.
Mason gets 80N, Mo*i gets 10N, and -on 0N. 9s this valid) This is a debatable
point according to Dro$essor @alane. /ome commentators say it is valid since 'rt.
%80 re$ers to contractual agreements. /ome commentators argue that it is not
valid. 'lthough 'rt. %80 re$ers to contractual agreements, it should e(tend to
other sources o$ co4ownership since 'rt. %80 is an e(pression o$ public policy.
Professor Ruben F. Balane Pa)e *,/ of +,-
Art. 486. :ach co/owner ma" use the thing owned in common%
provided he does so in accordance with the purpose for which it is intended
and in such a wa" as not to injure the interest of the co/ownership or
prevent the other co/owners from using it according to their rights. The
purpose of the co/ownership ma" be changed b" agreement% e-press or
implied.
188 Co4owners must respect the rights o$ the other co4owners.
18: 9n Pardell vs. -artolome sisters owned a story building. The $irst $loor
was by rented out. The second $loor was being occupied by 1 sister. The other
sister was in /pain. The /C said that the sister occupying the second $loor need
not pay rent. The $act that she used the whole second $loor is irrelevant. /he did
not pre*udice the rights o$ her sister in /pain precisely because she was in /pain.
@ut with respect to the $irst $loor which was occupied by the husband o$ one o$ the
sisters, the husband should pay his sister4in4law Z o$ the rent $or such portion.
2therwise, his sister4in4law would be pre*udiced.
1:0 's a co4owner, one can use all o$ the physical unit. For e(ample, a co4
owner uses the entire car, not *ust a portion o$ the car. ' co4owner does not have
to pay rent $or the use o$ the thing co4owned.
Art. 487. An" one of the co/owners ma" bring an action in ejectment.
1:1 'ny one o$ the co4owners may bring an action in e*ectment.
1: ', @, C, +, and 1 are co4owners o$ a lot which is being s.uatted. ' $iles an
e*ectment suit. ' wins. 'll the other co4owners bene$it. +o the other co4owners
share in the e(pense) Hes, one can argue that its a necessary e(pense.
1:! ', @, C, +, and 1 are co4owners o$ a lot which is being s.uatted. ' $iles an
e*ectment suit. ' loses. Eay the other sue $or e*ectment) No, it is barred by
prior *udgment.
1:% ',@, and C bought a boo, on credit. They are co4owners o$ a boo,. 9n an
action by the creditor against the co4owners, the creditor must sue all. 'rticle
%85 contemplates a situation when it is the co4owner who $iles the suit not when
they are the de$endants.
1:0 'rticle %85 is a case where 1 co4owner can bind the other. The other
instance is 'rticle %8:.
Art. 488. :ach co/owner shall have a right to compel the other co/
owners to contribute to the e-penses of preservation of the thing or right
owned in common and to the ta-es. An" one of the latter ma" e-empt
himself from this obligation b" renouncing so much of his undivided interest
as ma" be e.uivalent to his share of the e-penses and ta-es. 2o such waiver
shall be made if it is prejudicial to the co/ownership.
1:3 1(penses $or the preservation o$ the thing owned in common as well as
ta(es must be shouldered by every co4owner in proportion to their interest.
1:5 ' co4owner has options<
1. Day $or the necessary e(penses or ta(es
. Can $or$eit so much o$ his share which is e.uivalent to his interest to the co4
owner
who paid $or the necessary e(penses or ta(es
1:8 The co4owner who made the advance has a right o$ reimbursement. The
advancing co4owner only has the right to re.uire payment. Ae may not demand
the share o$ the co4owner.
Art. 489. *epairs for preservation ma" be made at the will of one of
the co/owners% but he must% if practicable% first notif" his co/owners of the
necessit" for such repairs. :-penses to improve or embellish the thing shall
be decided upon b" a majorit" as determined in article =E6.
1:: -epairs $or preservation may be made at the will o$ 1 o$ the co4owners.
00 's much as possible, notice should be given to the other co4owners. The
lac, o$ notice only gives rise to the presumption that the repairs were not
necessary. Aowever, this can be proven otherwise.
01 'rticle %8: is a case where 1 co4owner can bind the other. The other
instance is 'rticle %85.
0 "se$ul or ornamental e(penses need a ma*ority. Ea*ority is computed not
by counting heads but by ma*ority o$ the controlling interest in the co4ownership.
Art. 490. 0henever the different stories of a house belong to different
owners% if the titles of ownership do not specif" the terms under which the"
should contribute to the necessar" e-penses and there e-ists no agreement
on the subject% the following rules shall be observed+
5'7 The main and part" walls% the roof and the other things used in
common% shall be preserved at the e-pense of all the owners in
proportion to the value of the stor" belonging to each3
567 :ach owner shall bear the cost of maintaining the floor of his stor"3
the floor of the entrance% front door% common "ard and sanitar"
works common to all% shall be maintained at the e-pense of all the
owners pro rata3
587 The stairs from the entrance to the first stor" shall be maintained at
the e-pense of all the owners pro rata% with the e-ception of the
owner of the ground floor3 the stairs from the first to the second
stor" shall be preserved at the e-pense of all% e-cept the owner of
the ground floor and the owner of the first stor"3 and so on
successivel".
0! This hardly e(ists anymore.
0% Condominium ;aw =-' %53 as amended by -.'. No. 58::>
00 Eost condominiums are corporations. 9$ the condominium is a co4
ownership, then the provisions o$ the Civil Code are relevant.
03 9mportant /ections
1. J 4 +e$inition
Sec% 2% A C-*+-/)*)1/ )" * )*%e(e"% )* (e$ 0(-0e(%, c-*")"%)*. -'
"e0(%e )*%e(e"%" )* 1*)% )* (e")+e*%)$4 )*+1"%()$ -( c-//e(c)$ 21)$+)*. -(
)* * )*+1"%()$ e"%%e *+ * 1*+)5)+e+ )*%e(e"%" )* c-//-*4 +)(ec%$, *+
)*+)(ec%$,4 )* %#e $*+4 -( %#e 001(%e**% )*%e(e"% -' %#e)( (e"0ec%)5e 1*)%" )* %#e
c-//-* (e".
T#e (e$ ().#% )* c-*+-/)*)1/ /, 2e -!*e("#)0 -( *, )*%e(e"% )* (e$
0(-0e(%, (ec-.*)3e+ 2, $! -* 0(-0e(%, )* %#e C)5)$ C-+e *+ -%#e( 0e(%)*e*%
$!".
. J% ? 1nabling or master deed =contents and necessary re.uirements>
=amended>
Sec% C% T#e 0(-5)")-*" -' %#)" Ac% "#$$ 00$, %- 0(-0e(%, +)5)+e+ -( %-
2e +)5)+e+ )*%- c-*+-/)*)1/ -*$, )' %#e(e "#$$ 2e (ec-(+e+ )* %#e Re.)"%e( -'
Dee+" -' %#e 0(-5)*ce -( c)%, )* !#)c# %#e 0(-0e(%, $)e"4 *+ +1$, **-%%e+ )*
%#e c-((e"0-*+)*. ce(%)')c%e -' %)%$e -' %#e $*+4 )' %#e $%%e( #+ 2ee* 0%e*%e+
-( (e.)"%e(e+ 1*+e( e)%#e( %#e L*+ Re.)"%(%)-* -( C+"%($ Ac%"4 * e*2$)*.
-( /"%e( +ee+ !#)c# "#$$ c-*%)*4 /-*. -%#e("4 %#e '-$$-!)*.@
C De"c()0%)-* -' %#e $*+ -* !#)c# %#e 21)$+)*. -( 21)$+)*." *+
)/0(-5e/e*%" (e %- 2e $-c%e+>
2C De"c()0%)-* -' %#e 21)$+)*. -( 21)$+)*."4 "%%)*. %#e *1/2e( -' "%-()e"
*+ 2"e/e*%4 %#e *1/2e( -' 1*)%" *+ %#e)( cce""-()e"4 )' *,>
cC De"c()0%)-* -' %#e c-//-* (e" *+ 'c)$)%)e">
+C A "%%e/e*% -' %#e e;c% *%1(e -' %#e )*%e(e"% cI1)(e+ -( %- 2e
cI1)(e+ 2, %#e 01(c#"e+ )* %#e "e0(%e 1*)%" *+ %#e c-//-* (e"
-' %#e c-*+-/)*)1/ 0(-Bec%". W#e(e %)%$e %- -( %- 001(%e**% )*%e(e"%"
)* %#e c-//-* (e" )" %- 2e #e$+ 2, c-*+-/)*)1/ c-(0-(%)-*4
"%%e/e*% %- %#)" e''ec% "#$$ 2e )*c$1+e+>
eC S%%e/e*% -' %#e 01(0-"e" '-( !#)c# %#e 21)$+)*. -( 21)$+)*." *+ ec#
-' %#e 1*)%" (e )*%e*+e+ -( (e"%()c%e+ " %- 1"e>
'C A ce(%)')c%e -' %#e (e.)"%e(e+ -!*e( -' %#e 0(-0e(%,4 )' #e )" -%#e( %#*
%#-"e e;ec1%)*. %#e /"%e( +ee+4 " !e$$ " -' $$ (e.)"%e(e+ #-$+e(" -'
*, $)e* -( e*c1/2(*ce" -* %#e 0(-0e(%,4 %#% %#e, c-*"e*% %- %#e
(e.)"%(%)-* -' %#e +ee+>
.C T#e '-$$-!)*. 0$*" "#$$ 2e 00e*+e+ %- %#e +ee+ " )*%e.($ 0(%"
%#e(e-'@
1. A "1(5e, 0$* -' %#e $*+ )*c$1+e+ )* %#e 0(-Bec%4 1*$e"" "1(5e,
0$* -' %#e "/e 0(-0e(%, #+ 0(e5)-1"$, 2ee* ')$e+ )* ")+ -'')ce.
2. A +).(//%)c '$--( 0$* -' %#e 21)$+)*. -( 21)$+)*." ec# 1*)%4 )%"
(e$%)5e $-c%)-* *+ 00(-;)/%e +)/e*")-*".
#C A*, (e"-*2$e (e"%()c%)-* *-% c-*%((, %- $!4 /-($"4 -( 012$)c 0-$)c,
(e.(+)*. %#e ().#% -' *, c-*+-/)*)1/ -!*e( %- $)e*%e -( +)"0-"e -''
#)" c-*+-/)*)1/.
T#e e*2$)*. -( /"%e( +ee+ /, 2e /e*+e+ -( (e5-&e+ 10-*
(e.)"%(%)-* -' * )*"%(1/e*% e;ec1%e+ 2, ")/0$e /B-()%, -' %#e (e.)"%e(e+
-!*e(" -' %#e 0(-0e(%,@ <rovided, T#% )* c-*+-/)*)1/ 0(-Bec% e;c$1")5e$, '-(
e)%#e( (e")+e*%)$ -( c-//e(c)$ 1"e4 ")/0$e /B-()%, "#$$ 2e -* 0e( 1*)% -'
-!*e("#)0 2")" *+ %#% )* %#e c"e -' /);e+ 1"e4 ")/0$e /B-()%, "#$$ 2e -*
'$--( (e -' -!*e("#)0 2")"@ <rovided, frther, T#% 0()-( *-%)')c%)-*" %- $$
(e.)"%e(e+ -!*e(" (e +-*e@ *+ <rovided, finally, T#% *, /e*+/e*% -(
(e5-c%)-* $(e+, +ec)+e+ 2, ")/0$e /B-()%, -' $$ (e.)"%e(e+ -!*e(" "#$$
Professor Ruben F. Balane Pa)e *,, of +,-
2e "12/)%%e+ %- %#e H-1")*. *+ L*+ U"e Re.1$%-(, B-(+ *+ %#e
c)%,J/1*)c)0$ e*.)*ee( '-( 00(-5$ 2e'-(e )% c* 2e (e.)"%e(e+. U*%)$
(e.)"%(%)-* -' (e5-c%)-*4 %#e 0(-5)")-*" -' %#)" Ac% "#$$ c-*%)*1e %- 00$, %-
"1c# 0(-0e(%,. +As amended !y R%A% ,o% D3//4
!. J0 ? #hat trans$er o$ ownership includes =includes citi7enship
re.uirements>
Sec% 1% A*, %(*"'e( -( c-*5e,*ce -' 1*)% -( * 0(%/e*%4 -'')ce -(
"%-(e -( -%#e( "0ce %#e(e)*4 "#$$ )*c$1+e %#e %(*"'e( -( c-*5e,*ce -' %#e
1*+)5)+e+ )*%e(e"% )* %#e c-//-* (e" -( )* 0(-0e( c"e4 %#e /e/2e("#)0 -(
"#(e #-$+)*." )* %#e c-*+-/)*)1/ c-(0-(%)-*@ <rovided, however, T#% !#e(e
%#e c-//-* (e" )* %#e c-*+-/)*)1/ 0(-Bec% (e #e$+ 2, %#e -!*e(" -'
"e0(%e 1*)%" " c-<-!*e(" #e(e-'4 *- c-*+-/)*)1/ 1*)% %#e(e)* "#$$ 2e
c-*5e,e+ -( %(*"'e((e+ %- 0e("-*" -%#e( %#* F)$)0)*- c)%)3e*" -( c-(0-(%)-* %
$e"% 80L -' %#e c0)%$ "%-c& -' !#)c# 2e$-*. %- F)$)0)*- c)%)3e*"4 e;ce0% )*
c"e" -' #e(e+)%(, "1cce"")-*. W#e(e %#e c-//-* (e" )* c-*+-/)*)1/
0(-Bec% (e #e$+ 2, c-(0-(%)-*4 *- %(*"'e( -( c-*5e,*ce -' 1*)% "#$$ 2e
5$)+ )' %#e c-*c-/)%*% %(*"'e( -' %#e 001(%e**% /e/2e("#)0 -(
"%-c&#-$+)*. )* %#e c-(0-(%)-* !)$$ c1"e %#e $)e* )*%e(e"% )* "1c# c-(0-(%)-*
%- e;cee+ %#e $)/)%" )/0-"e+ 2, e;)"%)*. $!".
%. J3 ? 9ncidents o$ condominium grant
Sec% -% U*$e"" -%#e(!)"e e;0(e""$, 0(-5)+e+ )* %#e e*2$)*. -( /"%e(
+ee+ -( %#e +ec$(%)-* -' (e"%()c%)-*"4 %#e )*c)+e*%" -' c-*+-/)*)1/ .(*% (e
" '-$$-!"@
C T#e 2-1*+(, -' %#e 1*)% .(*%e+ (e %#e )*%e()-( "1('ce" -' %#e
0e()/e%e( !$$"4 '$--("4 ce)$)*.4 !)*+-!" *+ +--(" %#e(e-'@ <rovided,
%#% )* %#e c"e -' * )*+1"%()$ e"%%e c-*+-/)*)1/ 0(-Bec%"4 !#e(e)*
!#-$e 21)$+)*."4 0$*%" -( 'c%-()e" /, 2e c-*")+e(e+ " 1*)% +e')*e+
1*+e( "ec%)-* 6 A2C #e(e-'4 %#e 2-1*+(, -' 1*)% "#$$ )*c$1+e %#e -1%e(
"1('ce" -' %#e 0e()/e%e( !$$" -' ")+ 21)$+)*."4 0$*%" -( 'c%-()e". T#e
'-$$-!)*. (e *-% 0(% -' %#e 1*)%@ 2e()*. !$$"4 c-$1/*"4 '$--("4 (--'"4
'-1*+%)-*"4 *+ -%#e( c-//-* "%(1c%1($ e$e/e*%" -' %#e 21)$+)*.">
$-22)e"4 "%)(!,"4 #$$ !," *+ -%#e( (e" -' c-//-* 1"e4 e$e5%-(
eI1)0/e*% *+ "#'%"4 ce*%($ #e%)*.4 ce*%($ (e'().e(%)-* *+ ce*%($
)( c-*+)%)-*)*. eI1)0/e*%4 (e"e(5-)(4 %*&"4 01/0" *+ -%#e( ce*%($
"e(5)ce" *+ 'c)$)%)e"4 0)0e"4 +1c%"4 '$1e"4 c#1%e"4 c-*+1)%" !)(e" *+
-%#e( 1%)$)%, )*"%$$%)-*"4 !#e(e5e( $-c%e+4 e;ce0% %#e -1%$e%" %#e(e-'
!#e* $-c%e+ !)%#)* %#e 1*)%.
2C T#e(e "#$$ 0"" !)%# %#e 1*)%4 " * 001(%e**% %#e(e-'4 * e;c$1")5e
c"e/e*% '-( %#e 1"e -' %#e )( "0ce e*c-/0""e" 2, %#e 2-1*+()e"
-' %#e 1*)% " )% e;)"%" % *, 0(%)c1$( %)/e *+ " %#e 1*)% /, $!'1$$,
2e $%e(e+ -( (ec-*"%(1c%e+ '(-/ %)/e %- %)/e. S1c# e"e/e*% "#$$ 2e
1%-/%)c$$, %e(/)*%e+ )* *, )( "0ce 10-* +e"%(1c%)-* -' %#e 1*)%"
" %- (e*+e( )% 1*%e**%2$e.
cC U*$e"" -%#e(!)"e 0(-5)+e+4 %#e c-//-* (e" (e #e$+ )* c-//-* 2,
%#e #-$+e(" -' 1*)%"4 )* eI1$ "#(e -*e '-( ec# 1*)%.
+C A *-*<e;c$1")5e e"e/e*% '-( )*.(e""4 e.(e"" *+ "100-(% %#(-1.# %#e
c-//-* (e" )* 001(%e**% %- ec# 1*)% *+ %#e c-//-* (e" (e
"12Bec% %- "1c# e"e/e*%.
Professor Ruben F. Balane Pa)e *,- of +,-
eC Ec# c-*+-/)*)1/ -!*e( "#$$ #5e %#e e;c$1")5e ().#% %- 0)*%4
(e0)*%4 %)$e4 !;4 00e( -( -%#e(!)"e (e')*)"# *+ +ec-(%e %#e )**e(
"1('ce" -' %#e !$$"4 ce)$)*."4 '$--("4 !)*+-!" *+ +--(" #-1*+)*. #)"
-!* 1*)%@ 0(-5)+e+4 %#% )* %#e c"e -' * )*+1"%()$ e"%%e c-*+-/)*)1/
1*)%4 "1c# ().#% /, 2e e;e(c)"e+ -5e( %#e e;%e(*$ "1('ce" -' %#e ")+
1*)%.
'C Ec# c-*+-/)*)1/ -!*e( "#$$ #5e %#e e;c$1")5e ().#% %- /-(%..e4
0$e+.e -( e*c1/2e( #)" c-*+-/)*)1/ *+ %- #5e %#e "/e 00()"e+
)*+e0e*+e*%$, -' %#e -%#e( c-*+-/)*)1/ -!*e(.
.C Ec# c-*+-/)*)1/ -!*e( #" $"- %#e 2"-$1%e ().#% %- "e$$ -( +)"0-"e
-' #)" c-*+-/)*)1/ 1*$e"" %#e /"%e( +ee+ c-*%)*" (eI1)(e/e*%"
%#% %#e 0(-0e(%, 2e ')("% -''e(e+ %- %#e c-*+-/)*)1/ -!*e(" !)%#)*
(e"-*2$e 0e()-+ -' %)/e 2e'-(e %#e "/e )" -''e(e+ %- -1%")+e 0(%)e">
0. J8 ? #hen partition is allowed
Sec% 3% W#e(e "e5e($ 0e("-*" -!* c-*+-/)*)1/ )* c-*+-/)*)1/
0(-Bec%4 * c%)-* /, 2e 2(-1.#% 2, -*e -( /-(e "1c# 0e("-* '-( 0(%)%)-*
%#e(e-'4 2, "$e -' %#e e*%)(e 0(-Bec%4 " )' %#e -!*e(" -' $$ %#e c-*+-/)*)1/ )*
"1c# 0(-Bec% !e(e c-<-!*e(" -' %#e e*%)(e 0(-Bec% )* %#e "/e 0(-0-(%)-* "
%#e)( )*%e(e"%" )* %#e c-//-* (e"@ <rovided, however4 %#% 0(%)%)-* "#$$ 2e
/+e -*$, 10-* "#-!)*.@
C T#% %#(ee ,e(" '%e( +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% !#)c#
(e*+e(" /%e()$ 0(% %#e(e-' 1*')% '-( )%" 1"e 0()-( %#e(e%-4 %#e 0(-Bec%
#+ *-% 2ee* (e21)$% -( (e0)(e+ "12"%*%)$$, %- )%" "%%e 0()-( %- )%"
+/.e -( +e"%(1c%)-*> -(
2C T#% +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% #" (e*+e(e+ -*e #$' -( /-(e
-' %#e 1*)%" %#e(e)* 1*%e**%2$e *+ %#% c-*+-/)*)1/ -!*e(" #-$+)*.
)* ..(e.%e /-(e %#* 60 0e(ce*% )*%e(e"% )* %#e c-//-* (e" (e
-00-"e+ %- %#e (e0)( -( (e"%-(%)-* -' %#e 0(-Bec%"> -(
cC T#% 0(-Bec% #" 2ee* )* e;)"%e*ce )* e;ce"" -' E0 ,e("4 %#% )% )"
-2"-$e%e *+ 1*ec-*-/)c$4 *+ %#% c-*+-/)*)1/ -!*e(" #-$+)*. )*
..(e.%e /-(e %#* E0 0e(ce*% )*%e(e"% )* %#e c-//-* (e" (e
-00-"e+ %- (e0)( -( (e"%-(%)-* -( (e/-+e$)*. -( /-+e(*)3)*. -' %#e
0(-Bec%> -(
+C T#% %#e 0(-Bec% -( /%e()$ 0(% %#e(e-' #" 2ee* c-*+e/*e+ -(
e;0(-0()%e+ *+ %#% %#e 0(-Bec% )" *- $-*.e( 5)2$e4 -( %#% %#e
c-*+-/)*)1/ -!*e(" #-$+)*. )* ..(e.%e /-(e %#* G0 0e(ce*%
)*%e(e"% )* %#e c-//-* (e" (e -00-"e+ %- %#e c-*%)*1%)-* -' %#e
c-*+-/)*)1/ (e.)/e '%e( e;0(-0()%)-* -( c-*+e/*%)-* -' /%e()$
0(-0-(%)-* %#e(e-'> -(
eC T#% %#e c-*+)%)-* '-( "1c# 0(%)%)-* 2, "$e "e% '-(%# )* %#e +ec$(%)-*
-' (e"%()c%)-*" +1$, (e.)"%e(e+ )* cc-(+*ce !)%# %#e %e(/" -' %#)" Ac%4
#5e 2ee* /e%.
3. J: ? +eclaration o$ restrictions
Sec% /% T#e -!*e( -' 0(-Bec% "#$$4 0()-( %- %#e c-*5e,*ce -' *,
c-*+-/)*)1/ %#e(e)*4 (e.)"%e( +ec$(%)-* -( (e"%()c%)-*"4 (e$%)*. %- "1c#
0(-Bec%4 !#)c# (e"%()c%)-*" "#$$ e*"1(e %- 2)*+ $$ c-*+-/)*)1/ -!*e(" )* %#e
0(-Bec%4 "1c# $)e*"4 1*$e"" -%#e(!)"e 0(-5)+e+4 /, 2e e*'-(ce+ 2, *,
c-*+-/)*)1/ -!*e( )* %#e 0(-Bec% -( 2, %#e /*.e/e*% 2-+, -' "1c# 0(-Bec%.
T#e Re.)"%e( -' Dee+" "#$$ e*%e( *+ **-%%e %#e +ec$(%)-* -' (e"%()c%)-*"4
10-* %#e Ce(%)')c%e -' T)%$e c-5e()*. %#e $*+ )*c$1+e+ !)%#)* %#e 0(-0e(4 )' %#e
$*+ )" 0%e*%e+ -( (e.)"%e(e+ 1*+e( %#e L*+ Re.)"%(%)-* -( C+"%($ Ac%".
S1c# +ec$(%)-* -' (e"%()c%)-*"4 /-*. %#e -%#e( %#)*."4 /, $"-
0(-5)+e@
C A" %- /*.e/e*% 2-+,
1. F-( %#e 0-!e( %#e(e-'4 )*c$1+)*. 0-!e( %- e*'-(ce %#e 0(-5)")-*" -'
%#e +ec$(%)-*" -' (e"%()c%)-*">
2. F-( %#e /)*%e**ce -' )*"1(*ce 0-$)c)e" )*"1()*. c-*+-/)*)1/
-!*e(" .)*"% $-"" 2, %#e4 c"1$%,4 $)2)$)%,4 !-(&/e*K"
c-/0e*"%)-* *+ -%#e( )*"1(2$e ()"&" *+ '-( 2-*+)*. -' %#e
/e/2e(" -' *, /*.e/e*% 2-+,>
6. P(-5)")-*" '-( /)*%e**ce4 1%)$)%,4 .(+e*)*. *+ -%#e( "e(5)ce"
2e*e')%)*. %#e c-//-* (e" '-( %#e -0e(%)-*" -' %#e 21)$+)*.4 *+
$e.$4 cc-1*%)*. *+ -%#e( 0(-'e"")-*$ *+ %ec#*)c$ "e(5)ce">
D. F-( 01(c#"e -' /%e()$"4 "100$)e" *+ %#e $)&e *ee+e+ 2, %#e
c-//-* (e">
E. F-( 0,/e*% -' %;e" *+ "0ec)$ ""e""/e*% !#)c# !-1$+ 2e $)e*
10-* %#e e*%)(e 0(-Bec% -( c-//-* (e"4 '-( +)"c#(.e -' /,
e*c1/2(*ce $e5)e+ .)*"% %#e e*%)(e 0(-Bec% -' %#e c-//-* (e">
8. T#e /**e( '-( +e$e.%)-* -' )%" 0-!e(">
G. F-( (ec-*"%(1c%)-* -' *, 0-(%)-* -( 0-(%)-*" -' *, +/.e %- -(
+e"%(1c%)-* -' %#e 0(-Bec%>
7. F-( e*%(, 2, )%" -'')ce(" *+ .e*%" )*%- *, 1*)% !#e* *ece""(, )*
c-**ec%)-* !)%# %#e /)*%e**ce -( c-*"%(1c%)-* '-( !#)c# "1c#
2-+, )" (e"0-*")2$e>
H. F-( 0-!e( -' %%-(*e, %- %#e /*.e/e*% 2-+, %- "e$$ %#e e*%)(e
0(-Bec% '-( %#e 2e*e')% -' $$ -' %#e -!*e(" %#e(e-' !#e* 0(%)%)-* -'
%#e 0(-Bec% /, 2e 1%#-()3e+ 1*+e( Sec%)-* 7 -' %#)" Ac%4 !#)c#
")+ 0-!e( "#$$ 2e 2)*+)*. 10-* $$ -' %#e c-*+-/)*)1/ -!*e("
(e.(+$e"" -( !#e%#e( %#e, ""1/e %#e -2$).%)-*" -' %#e
(e"%()c%)-*" -( *-%.
2C T#e /**e( *+ 0(-ce+1(e '-( /e*+)*. "1c# (e"%()c%)-*"4 0(-5)+e+4
%#% %#e 5-%e -' *-% $e"" %#* /B-()%, )* )*%e(e"% -' %#e -!*e(" )"
-2%)*e+>
cC F-( )*+e0e*+e*% 1+)% -' %#e cc-1*%" -' %#e /*.e/e*% 2-+,>
+C F-( (e"-*2$e ""e""/e*%" %- /ee% 1%#-()3e+ e;0e*+)%1(e"4 ec#
c-*+-/)*)1/ 1*)% %- 2e ""e""e+ "e0(%e$, '-( )%" "#(e -' "1c#
e;0e*"e" )* 0(-0-(%)-* A1*$e"" -%#e(!)"e 0(-5)+e+C %- )%" -!*e(K"
'(c%)-*$ )*%e(e"% )* *, c-//-* (e">
eC F-( %#e "12-(+)*%)-* -' %#e $)e*" "ec1()*. "1c# ""e""/e*%" %- -%#e(
$)e* e)%#e( .e*e($$, -( "0ec)')c$$, +e"c()2e+>
'C F-( c-*+)%)-*"4 -%#e( %#* %#-"e 0(-5)+e+ '-( )* Sec%)-*" 7 *+ 16 -'
%#)" Ac%4 10-* !#)c# 0(%)%)-* -' %#e 0(-Bec% *+ +)""-$1%)-* -' %#e
c-*+-/)*)1/ c-(0-(%)-* /, 2e /+e. S1c# ().#% %- 0(%)%)-* -(
+)""-$1%)-* /, 2e c-*+)%)-*e+ 10-* ')$1(e -' %#e c-*+-/)*)1/
-!*e(" %- (e21)$+ !)%#)* ce(%)* 0e()-+ -( 10-* "0ec)')e+ 0e(ce*%.e
-' +/.e %- %#e 21)$+)*.4 -( 10-* +ec)")-* -' * (2)%(%)-*4 -( 10-*
*, -%#e( (e"-*2$e c-*+)%)-*.
Professor Ruben F. Balane Pa)e *-4 of +,-
5. J10 ? Condominium corporation
Sec% 0E% W#e*e5e( %#e c-//-* (e" )* c-*+-/)*)1/ 0(-Bec% (e
#e$+ 2, c-*+-/)*)1/ c-(0-(%)-*4 "1c# c-(0-(%)-* "#$$ c-*"%)%1%e %#e
/*.e/e*% 2-+, -' %#e 0(-Bec%. T#e c-(0-(%e 01(0-"e" -' "1c# c-(0-(%)-*
"#$$ 2e $)/)%e+ %- %#e #-$+)*. -' %#e c-//-* (e"> e)%#e( %#e -!*e("#)0 -' *,
-%#e( )*%e(e"% )* (e$ 0(-0e(%, (ec-.*)3e+ 2, %#e $!4 %- %#e /*.e/e*% -' %#e
0(-Bec%4 *+ %- "1c# -%#e( 01(0-"e" " /,2e *ece""(,4 )*c)+e*%$ -(
c-*5e*)e*% %- %#e cc-/0$)"#/e*% -' ")+ 01(0-"e". T#e (%)c$e" -'
)*c-(0-(%)-* -( 2, $!" -' %#e c-(0-(%)-* "#$$ *-% c-*%)* *, 0(-5)")-*
c-*%((, %- -( )*c-*")"%e*% !)%# %#e 0(-5)")-* -' %#)" Ac%4 %#e e*2$)*. -( /"%e(
+ee+4 -( %#e +ec$(%)-* -' (e"%()c%)-*" -' %#e 0(-Bec%4 /e/2e("#)0 )*
c-*+-/)*)1/ c-(0-(%)-* (e.(+)*. -' !#e%#e( )% )" "%-c& -( *-*<"%-c&
c-(0-(%)-*4 "#$$ *-% 2e %(*"'e(2$e "e0(%e$, '(-/ %#e c-*+-/)*)1/ 1*)% -'
!#)c# )% )" * 001(%e**ce. W#e* /e/2e( -( "%-c&#-$+e( ce"e" %- -!*
1*)% )* %#e 0(-Bec% )* !#)c# %#e c-*+-/)*)1/ c-(0-(%)-* -!*" -( #-$+" %#e
c-//-* (e4 #e "#$$ 1%-/%)c$$, ce"e %- 2e /e/2e( -( "%-c&#-$+e( -'
%#e c-*+-/)*)1/ c-(0-(%)-*.
8. J1! ? Mudicial dissolution o$ condominium corporation
Sec. 16. U*%)$ %#e e*2$)*. -( %#e /"%e( +ee+ -' %#e 0(-Bec% )* !#)c# %#e
c-*+-/)*)1/ c-(0-(%)-* -!*" -( #-$+" %#e c-//-* (e" )" (e5-&e+ %#e
c-(0-(%)-* "#$$ *-% 2e 5-$1*%()$, +)""-$5e+ %#(-1.# * c%)-* '-( +)""-$1%)-*
1*+e( R1$e 10D -' %#e R1$e" -' C-1(% e;ce0% 10-* "#-!)*.@
C T#e %#(ee ,e(" '%e( +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% )* !#)c#
+/.e -( +e"%(1c%)-* (e*+e(" /%e()$" 0(% %#e(e-' 1*')% '-( )%" 1"e
0()-( %#e(e%-4 %#e 0(-Bec% #" *-% 2ee* (e21)$% -( (e0)(e+ "12"%*%)$$, %-
)%" "%%e 0()-( %- )%" +/.e -( +e"%(1c%)-*> -(
2C T#e +/.e -( +e"%(1c%)-* %- %#e 0(-Bec% #" (e*+e(e+ -*e #$' -( /-(e
-' %#e 1*)%" %#e(e)* 1*%e**%2$e *+ %#% /-(e %#* 60 0e(ce*% -' %#e
/e/2e( -' %#e c-(0-(%)-* e*%)%$e+ %- 5-%e4 )' "%-c& c-(0-(%)-*4 (e
-00-"e+ %- %#e (e0)( -( (ec-*"%(1c%)-* -' %#e 0(-Bec%> -(
cC T#% %#e 0(-Bec% #" 2ee* )* e;)"%e*ce e;ce"" -' E0 ,e("4 %#% )% )"
-2"-$e%e *+ 1*ec-*-/)c$ *+ %#% /-(e %#* E0 0e(ce*% -' %#e
/e/2e(" -' %#e c-(0-(%)-* )' *-*<"%-c& -( "%-c&#-$+e(" (e0(e"e*%)*.
/-(e %#* E0 0e(ce*% -' %#e c0)%$ "%-c& e*%)%$e+ %- 5-%e4 )' "%-c&
c-(0-(%)-*4 (e -00-"e+ %- %#e (e0)( -( (e"%-(%)-* -( (e/-+e$)*. -(
/-+e(*)3)*. -' %#e 0(-Bec%> -(
+C T#% 0(-Bec% -( /%e()$ 0(% %#e(e-' #" 2ee* c-*+e/*e+ -(
e;0(-0()%e+ *+ %#% %#e 0(-Bec% )" *- $-*.e( 5)2$e -( %#% %#e /e/2e("
#-$+)*. )* ..(e.%e /-(e %#* G0 0e(ce*% )*%e(e"% )* %#e c-(0-(%)-* )'
*-*<"%-c&4 -( %#e "%-c&#-$+e(" (e0(e"e*%)*. /-(e %#* G0 0e(ce*% -' %#e
c0)%$ "%-c& e*%)%$e+ %- 5-%e4 )' "%-c& c-(0-(%)-*4 (e -00-"e+ %- %#e
c-*%)*1%)-* -' %#e c-*+-/)*)1/ (e.)/e '%e( e;0(-0()%)-* -(
c-*+e/*%)-* -' /%e()$ 0-(%)-* %#e(e-'> -(
eC T#% %#e c-*+)%)-*" '-( "1c# +)""-$1%)-* "e% '-(%# )* %#e +ec$(%)-* -'
(e"%()c%)-*" -' %#e 0(-Bec% )* !#)c# %#e c-(0-(%)-* -!*" -( #-$+" %#e
c-//-* (e"4 #5e 2ee* /e%.
:. J1% ? Voluntary dissolution o$ condominium corporation =amended>
Professor Ruben F. Balane Pa)e *-* of +,-
Sec% 0C% T#e c-*+-/)*)1/ c-(0-(%)-* /, $"- 2e +)""-$5e+ 2, %#e
'')(/%)5e 5-%e -' $$ %#e "%-c&#-$+e(" -( /e/2e(" %#e(e-' % .e*e($ -(
"0ec)$ /ee%)*. +1$, c$$e+ '-( "1c# 01(0-"e@ <rovided, T#% $$ %#e
(eI1)(e/e*%" -' Sec%)-* 82 -' %#e C-(0-(%)-* L! (e c-/0$)e+ !)%#.
10. J13 ? +isposition o$ common areas
Sec% 0-% A c-*+-/)*)1/ c-(0-(%)-* "#$$ *-%4 +1()*. )%" e;)"%e*ce4
"e$$4 e;c#*.e4 $e"e -( -%#e(!)"e +)"0-"e -' %#e c-//-* (e" -!*e+ -( #e$+
2, )% )* %#e c-*+-/)*)1/ 0(-Bec% 1*$e"" 1%#-()3e+ 2, %#e '')(/%)5e 5-%e -'
")/0$e /B-()%, -' %#e (e.)"%e(e+ -!*e("@ <rovided, T#% 0()-( *-%)')c%)-* %- $$
(e.)"%e(e+ -!*e(" (e +-*e> *+ <rovided frther, T#% %#e c-*+-/)*)1/
c-(0-(%)-* /, e;0*+ -( )*%e.(%e %#e 0(-Bec% !)%# *-%#e( 10-* %#e
'')(/%)5e 5-%e -' ")/0$e /B-()%, -' %#e (e.)"%e(e+ -!*e("4 "12Bec% -*$, %-
%#e ')*$ 00(-5$ -' %#e H-1")*. L*+ U"e Re.1$%-(, B-(+. +As amended !y
R% A% ,o% D3//4
Art. 491. 2one of the co/owners shall% without the consent of the
others% make alterations in the thing owned in common% even though
benefits for all would result therefrom. 9owever% if the withholding of the
consent b" one or more of the co/owners is clearl" prejudicial to the
common interest% the courts ma" afford ade.uate relief.
05 9n order to ma,e alterations, the consent o$ all co4owners is needed.
08 'n alteration is an act o$ strict ownership =i.e. any act o$ encumbrance> or
one which involves a change in the use o$ the thing =i.e. bought Tamara( FT to
carpool and then decide to rent it out>.
0: Aowever, i$ the withholding o$ the consent by 1 or more o$ the creditors is
clearly pre*udicial to the common interest, the court may intervene and a$$ord
ade.uate relie$.
Art. 492. Aor the administration and better enjo"ment of the thing
owned in common% the resolutions of the majorit" of the co/owners shall be
binding.
There shall be no majorit" unless the resolution is approved b" the co/
owners who represent the controlling interest in the object of the co/
ownership.
@hould there be no majorit"% or should the resolution of the majorit"
be seriousl" prejudicial to those interested in the propert" owned in
common% the court% at the instance of an interested part"% shall order such
measures as it ma" deem proper% including the appointment of an
administrator.
0henever a part of the thing belongs e-clusivel" to one of the co/
owners% and the remainder is owned in common% the preceding provision
shall appl" onl" to the part owned in common.
10 'cts o$ administration need a ma*ority. Ea*ority is computed not by
counting heads but by ma*ority o$ the controlling interest in the co4ownership.
11 'n e(ample o$ an act o$ administration is replacing the tires o$ a car owned
in common with another brand o$ tires.
Professor Ruben F. Balane Pa)e *-. of +,-
Art. 493. :ach co/owner shall have the full ownership of his part and
of the fruits and benefits pertaining thereto% and he ma" therefore alienate%
assign or mortgage it% and even substitute another person in its enjo"ment%
e-cept when personal rights are involved. Gut the effect of the alienation or
the mortgage% with respect to the co/owners% shall be limited to the portion
which ma" be allotted to him in the division upon the termination of the co/
ownership.
1 'rticle %:! is the rule regarding $ractional interest.
213 The partner provision o$ 'rticle %:! is 'rticle %83
.
1% 'rticle %:! provides that each co4owner shall have the $ull ownership o$ his
part and o$ the $ruits and bene$its pertaining thereto, and he may there$ore
alienate, assign or mortgage it, and even substitute another person in its
en*oyment, e(cept when personal rights are involved. @ut the e$$ect o$ the
alienation or the mortgage, with respect to the co4owners, shall be limited to the
portion which may be allotted to him in the division upon the termination o$ the
co4ownership.
10 'rticle %83 provides that each co4owner may use the thing owned in
common, provided he does so in accordance with the purpose $or which it is
intended and in such a way as not to in*ure the interest o$ the co4ownership or
prevent the other co4owners $rom using it according to their rights.
13 ' co4owner may lease his $ractional or ideal share.
15 ' co4owner may not dispose o$ the entire property owned in common. 9$
he does so, the transaction is valid in so $ar as his ideal share is concern.
Art. 494. 2o co/owner shall be obliged to remain in the co/ownership.
:ach co/owner ma" demand at an" time the partition of the thing owned in
common% insofar as his share is concerned.
2evertheless% an agreement to keep the thing undivided for a certain
period of time% not e-ceeding ten "ears% shall be valid. This term ma" be
e-tended b" a new agreement.
A donor or testator ma" prohibit partition for a period which shall not
e-ceed twent" "ears.
2either shall there be an" partition when it is prohibited b" law.
2o prescription shall run in favor of a co/owner or co/heir against his
co/owners or co/heirs so long as he e-pressl" or impliedl" recogni$es the co/
ownership.
18 #ays o$ Terminating a Co42wnership
1. Dartition
1: Dartition converts into certain and de$inite parts the respective
share o$ the undivided shares o$ the co4owners.
_
'rt. %83. 1ach co4owner may use the thing owned in common, provided he does so in
accordance with the purpose $or which it is intended and in such a way as not to in*ure the interest
o$ the co4ownership or prevent the other co4owners $rom using it according to their rights. The
purpose o$ the co4ownership may be changed by agreement, e(press or implied.
Professor Ruben F. Balane Pa)e *-+ of +,-
0 General *ule+ Dartition is demandable by any o$ the co4owners as
a matter o$ right at any time. 9$ the other co4owners do not consent, then
go to court.
221 Exceptions:
a. #hen there is an agreement to ,eep the thing undivided
The ma(imum period $or such an agreement is 10 years.
! The agreement can be e(tended. /uch an e(tension must
not go beyond 10 years. There is no limit as to the number o$
e(tensions.
% #hat i$ the co4owners agree to e(tend $or more than 10
years, is the agreement totally void or it is good $or only 10 years)
The less radical view would say that it is valid $or only 10 years.
225 Dartition may either be by agreement o$ the parties or by
*udicial proceedings ='rticle %:3
>.
b. #hen prohibited by the donor or testator
3 The prohibition by the donor or testator cannot e(ceed 0
years.
5 #hat i$ donor states that the prohibition is $or !0 years, is
the prohibition totally void or it is good $or only 0 years) The less
radical view would say that it is valid $or only 0 years.
8 1ven though the testator or donor prohibits partition, the co4
ownership shall terminate when<
i. 'ny o$ the causes $or which partnership is dissolved ta,es place&
or
1 The court $inds compelling reasons that division should be
ordered upon petition o$ one o$ the co4heirs
c. #hen prohibited by law
229 Exception to t"e exception: #hen compelling reasons it
must be partitioned =i.e. 'rticle 10:
, Family Code>
d. #hen partition renders the thing unserviceable
230 'rticle %:8
governs in this case.

!1 "nder 'rticle %:8, when the thing is essentially indivisible
and the co4owners cannot agree that it be allotted to one o$ them
_
Art. *2&. Dartition may be made by agreement between the parties or by *udicial
proceedings. Dartition shall be governed by the -ules o$ Court inso$ar as they are consistent with
this Code.
_
Art. )$2. The $amily home shall continue despite the death o$ one or both spouses or o$ the
unmarried head o$ the $amily $or a period o$ ten years or $or as long as there is a minor bene$iciary,
and the heirs cannot partition the same unless the court $inds compelling reasons there$or. This
rule shall apply regardless o$ whoever owns the property or constituted the $amily home.
'rt. %:8. #henever the thing is essentially indivisible and the co4owners cannot agree that it
be allotted to one o$ them who shall indemni$y the others, it shall be sold and its proceeds
distributed.
Professor Ruben F. Balane Pa)e *-/ of +,-
who shall indemni$y the others, it shall be sold and the its proceeds
be distributed.
! #hat is allowed only is a constructive and not a physical
partition =i.e. in a partition o$ a house>.
e. #hen the legal nature o$ the thing does not allow partition =i.e. party
wall>
. Consolidation
!. +estruction or loss
%. Drescription
!! General *ule+ Drescription will not run i$ the ob*ect is in
possession o$ anyone o$ the co4owners since such possession is not
adverse.
!% Exception: Co4owner may repudiate the co4ownership and
the prescriptive period will start to run.
!0 'nything that terminates a co4ownership is similar to a partition.
!3 9n 7uason vs. 7uason the co4owners o$ a huge parcel o$ land agreed to
improve the property by $illing it and constructing roads thereon and then sub4
dividing it into small lots $or sale. /ubse.uently, one o$ the co4owners as,ed the
court $or partition alleging that 'rticle %:% was violated. The /C said that the
contract $ar $rom violating the legal provision that $orbids a co4owner $rom being
obliged to remain a party to the community precisely has $or its purpose and
ob*ect the dissolution o$ the co4ownership and o$ the community by selling the
parcel held in common and dividing the proceeds o$ the sale among the co4
owners. The obligation imposed in the contract to preserve the co4ownership until
all the lots shall have been sold, is a mere incident to the main ob*ect o$
dissolving the co4ownership. @y virtue o$ the document, the parties thereto
practically and substantially entered into a contract o$ partnership as the best and
most e(pedient means o$ eventually dissolving the co4ownership, and the li$e o$
said partnership to end when the ob*ect o$ its creation shall have been attained.
,,,. Possession
!5 Iinds o$ Dossession
A. &ossession in t"e concept o. an o;ner =en concepto de dueno)
!8 Dossession in the concept o$ an owner +21/ N2T re$er to the
possessors inner belie$ or disposition regarding the property in his
possession.
!: Dossession in the concept o$ an owner re$ers to his overt acts which
tend to induce the belie$ on the part o$ others that he is the owner.
%0 Dossession in the concept o$ an owner is ius possidendi.
%1 Dossession in the concept o$ an owner by its nature is provisional.
9t usually ends up as ownership.
% Conse.uences o$ Dossession in the Concept o$ an 2wner
1. Dossession is converted into ownership a$ter the re.uired lapse o$ time
='rticle 0%0>
Art. 540. #nl" the possession ac.uired and enjo"ed in
the concept of owner can serve as a title for ac.uiring dominion.
. Dresumption o$ *ust title ='rticle 0%1>
Art. 541. A possessor in the concept of owner has in his
favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it.
%! -elevance o$ the 9nner +isposition o$ the Dossessor in the Concept
o$ an 2wner =6ood Faith, @ad Faith>
1. Good Aaith
a. Re>uisites o. Goo+ )ait"
i. 2stensible title or mode o$ ac.uisition
%% 9$ its not an ostensible title but a real title, then its
ownership.
ii. Vice or de$ect in the title
%0 9$ there was no vice or de$ect in the title, then its
ownership.
%3 1(amples o$ vice or de$ect in title
0 6rantor was not the owner
1 -e.uirements $or transmission were not complied
with
Eista,e in the identity o$ the person
! Droperty was not really res nullius
iii. Dossessor is ignorant o$ the vice or de$ect and must have an
honest belie$ that the thing belongs to him
%5 2therwise, its bad $aith.
b. E..ects o. Goo+ )ait"
i. As to t#e !ruits
1. Fruits already received ='rticle 0%%, B1>
Art. 544$ %1. A possessor in good faith is entitled
to the fruits received before the possession is legall"
interrupted.
%8 1ntitled to all the $ruits until possession is
legally interrupted =i.e. be$ore summons>
. Fruits still pending ='rticle 0%0>
Art. 545. ,f at the time the good faith ceases%
there should be an" natural or industrial fruits% the
possessor shall have a right to a part of the e-penses
of cultivation% and to a part of the net harvest% both in
proportion to the time of the possession.
The charges shall be divided on the same basis
b" the two possessors.
The owner of the thing ma"% should he so
desire% give the possessor in good faith the right to
finish the cultivation and gathering of the growing
fruits% as an indemnit" for his part of the e-penses of
cultivation and the net proceeds3 the possessor in
good faith who for an" reason whatever should refuse
to accept this concession% shall lose the right to be
indemnified in an" other manner.
%: 1ntitled to pro4rate the $ruits already growing
when his possession is legally interrupted
00 For e(ample, possessor planted crops. 9t
ta,es the crops % months to grow. 2n the beginning o$
the %
th
month, summons is served. 't the end o$ the %
th
month, the crops are harvested. "nder 'rticle 0%0, the
possessor is entitled to [ o$ the crops since the
possessor was in possession $or ! months. Aowever, he
also pays [ o$ the e(penses.
ii. As to necessar8 expenses ='rticle 0%3, B1>
Art. 546$ %1. 2ecessar" e-penses shall be
refunded to ever" possessor3 but onl" the possessor in
good faith ma" retain the thing until he has been
reimbursed therefor.
01 The possessor in good $aith is entitled to a re$und o$
necessary e(penses.
0 The possessor in good $aith may retain the thing until
he is reimbursed $or necessary e(penses.
iii. As to use!ul expenses ='rticles 0%3, B, 0%5>
Art. 546$ %2. ?seful e-penses shall be refunded
onl" to the possessor in good faith with the same right of
retention% the person who has defeated him in the
possession having the option of refunding the amount of
the e-penses or of pa"ing the increase in value which the
thing ma" have ac.uired b" reason thereof.
Art. 547. ,f the useful improvements can be
removed without damage to the principal thing% the
possessor in good faith ma" remove them% unless the
person who recovers the possession e-ercises the option
under paragraph 6 of the preceding article.
Professor Ruben F. Balane Pa)e *-, of +,-
0! The possessor in good $aith is entitled to a re$und o$
use$ul e(penses.
0% The possessor in good $aith may retain the thing until
he is reimbursed $or use$ul e(penses.
00 The other party has the option to
1. -e$und the amount o$ e(penses& or
. Day the increase in value which the thing may have
ac.uired
03 9$ the use$ul improvements can be removed without
damaging the principal thing, the possessor in good $aith
may remove them unless the other party wants to ,eep the
use$ul improvements. 9n which case, the other party has to
e(ercise the two previous options.
iv. As to ornamental expenses ='rticle 0%8>
Art. 548. :-penses for pure lu-ur" or mere
pleasure shall not be refunded to the possessor in good
faith3 but he ma" remove the ornaments with which he
has embellished the principal thing if it suffers no injur"
thereb"% and if his successor in the possession does not
prefer to refund the amount e-pended.
05 The possessor in good $aith is not entitled to a re$und
$or ornamental e(penses.
08 @ut he may remove the ornamental improvements i$
they do not cause damage to the principal thing.
v. As to prescription ='rticles 11!, 11!%>
Art. 1132. The ownership of movables prescribes
through uninterrupted possession for four "ears in good
faith.
The ownership of personal propert" also prescribes
through uninterrupted possession for eight "ears%
without need of an" other condition.
0ith regard to the right of the owner to recover
personal propert" lost or of which he has been illegall"
deprived% as well as with respect to movables ac.uired in
a public sale% fair% or market% or from a merchant;s store
the provisions of articles ))E and ')4) of this Code shall
be observed.
Art. 1134. #wnership and other real rights over
immovable propert" are ac.uired b" ordinar" prescription
through possession of ten "ears.
0: Drescriptive Deriod<
1. Eovables ? % years
Professor Ruben F. Balane Pa)e *-- of +,-
. 9mmovables ? 10 years
vi. As to lia5ilit8 !or deterioration or loss ='rticle 00, B1>
Art. 552. A possessor in good faith shall not be
liable for the deterioration or loss of the thing possessed%
e-cept in cases in which it is proved that he has acted
with fraudulent intent or negligence% after the judicial
summons.
30 The possessor in good $aith is not liable since he
thought that he was the owner.
31 2nce the good $aith ceases =i.e. summons served>,
then the possessor is liable i$ there was $raudulent intent or
negligence.
. Gad Aaith
0 E..ects o. =a+ )ait"
i. As to t#e !ruits ='rticle 0%:>
Art. 549. The possessor in bad faith shall
reimburse the fruits received and those which the
legitimate possessor could have received% and shall have
a right onl" to the e-penses mentioned in paragraph ' of
article )=B and in article ==8. The e-penses incurred in
improvements for pure lu-ur" or mere pleasure shall not
be refunded to the possessor in bad faith% but he ma"
remove the objects for which such e-penses have been
incurred% provided that the thing suffers no injur"
thereb"% and that the lawful possessor does not prefer to
retain them b" pa"ing the value the" ma" have at the
time he enters into possession.
3 The possessor in bad $aith shall reimburse the $ruits
receive and those which the legitimate possessor could have
received
3! The possessor in bad $aith has a right o$
reimbursement $or necessary e(penses $or the production,
gathering and preservation o$ the $ruits.
ii. As to t#e necessar8 expenses
3% The possessor in good $aith is entitled to a re$und o$
necessary e(penses.
30 The possessor in good $aith has no right to retain the
thing until he is reimbursed $or necessary e(penses.
iii. As to use!ul expenses
33 The possessor in bad $aith is not entitled to a re$und
o$ use$ul e(penses.
iv. As to ornamental expenses
35 The possessor in bad $aith is not entitled to a re$und
o$ ornamental e(penses
38 The possessor in bad $aith is entitled to remove the
ornamental improves only i$<
i. -emoval can be accomplished without damaging the
principal thing and
ii. The law$ul possessor does not pre$er to retain the
ornamental improvements by paying the value thereo$ at
the time he enters into possession
v. As to prescription ='rticles 11!, 11!5>
faith.
be observed.
Art. 1137. #wnership and other real rights over
immovables also prescribe through uninterrupted adverse
possession thereof for thirt" "ears% without need of title
or of good faith.
3: Drescriptive Deriod
1. Eovables ? 8 years
. 9mmovables ? !0 years
vi. As to lia5ilit8 !or deterioration or loss ='rticle 00, B>
Article 552$ %2. A possessor in bad faith shall be
liable for deterioration or loss in ever" case% even if
caused b" a fortuitous event.
50 The possessor in bad $aith becomes an insurer o$ the
property. Ae is liable even i$ the thing is destroyed, loss or
deteriorates due to a $ortuitous event
51 Dresumptions 'pplicable
1. 1ust Title ='rticle 0%1>
Art. 541. A possessor in the concept of owner has in his
favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it.
5 ' possessor in the concept o$ owner has in his $avor the
legal presumption that he possess *ust title and he cannot be
obliged to show or prove it.
. Good Aaith ='rticles 05, 00:>
Art. 527. Good faith is alwa"s presumed% and upon him
who alleges bad faith on the part of a possessor rests the
burden of proof.
Art. 559. The possession of movable propert" ac.uired in
good faith is e.uivalent to a title. 2evertheless% one who has
lost an" movable or has been unlawfull" deprived thereof ma"
recover it from the person in possession of the same.
,f the possessor of a movable lost or which the owner has
been unlawfull" deprived% has ac.uired it in good faith at a
public sale% the owner cannot obtain its return without
reimbursing the price paid therefor.
5! 6ood $aith is always presumed, and upon him who alleges
bad $aith on the part o$ a possessor rests the burden o$ proo$.
5% The possession o$ movables
ac.uired in good $aith is e.uivalent to title.
50 1.uivalent to title means
presumptive title su$$icient to serve as a basis $or prescription.
53 General *ule+ ' person
who lost or has been unlaw$ully deprived o$ the movable, may
recover it $rom the person who has possession o$ the movable.
55 "nlaw$ul deprivation e(tends
to all instances where there is no valid transmission =i.e. the$t,
robbery, etc.>
278 Exceptions:
0 9$ the possessor obtained the movable in good $aith at a
public sale, the owner cannot get it bac, unless he reimburses
the possessor.
1 9$ the owner is estopped ='rticle 1000,B1>
Art. 1505. @ubject to the provisions of this Title%
where goods are sold b" a person who is not the owner
thereof% and who does not sell them under authorit" or
with the consent of the owner% the bu"er ac.uires no
better title to the goods than the seller had% unless the
owner of the goods is b" his conduct precluded from
den"ing the seller;s authorit" to sell.
c. 9$ the disposition is made under any $actors act ='rticle 1000,
B>
Art. 1505$ %2. 2othing in this Title% however% shall
affect+
5'7 The provisions of an" factors; act% recording laws%
or an" other provision of law enabling the
apparent owner of goods to dispose of them as if
he were the true owner thereof3
5: This is no longer applicable under the present law
since we now have the ;aw on 'gency.
d. Court order
e. 9$ purchased ay a merchants store ='rticle 1000=!>>
587 Purchases made in a merchant;s store% or in fairs%
or markets% in accordance with the Code of
Commerce and special laws.
80 'n e(ample o$ a merchants store would be /E or
-ustans. #ithout this e(ception, commercial transactions
would be destabili7ed.
81 'rticle 1000, B! states in accordance with the Code o$
Commerce and special laws. 'rticles 80 and 83 was
repealed. 9s 'rticle 1000, B! still applicable) Dro$essor
@alane doesnt ,now.
$. 9$ title is lost by prescription ='rticle 11!>
faith.
be observed.
g. 9$ the possessor is the holder in due course o$ a negotiable
instrument o$ title ='rticle 1018>
Art. 1518. The validit" of the negotiation of a
negotiable document of title is not impaired b" the fact
that the negotiation was a breach of dut" on the part of
the person making the negotiation% or b" the fact that the
owner of the document was deprived of the possession of
the same b" loss% theft% fraud% accident% mistake% duress%
or conversion% if the person to whom the document was
negotiated or a person to whom the document was
subse.uentl" negotiated paid value therefor in good faith
without notice of the breach of dut"% or loss% theft% fraud%
accident% mistake% duress or conversion.
!. Continuit" of Good Aaith ='rticles 08, 0:>
Art. 528. Possession ac.uired in good faith does not lose
this character e-cept in the case and from the moment facts
e-ist which show that the possessor is not unaware that he
possesses the thing improperl" or wrongfull".
Art. 529. ,t is presumed that possession continues to be
enjo"ed in the same character in which it was ac.uired% until
the contrar" is proved.
8 Dossession ac.uired in good $aith does not lose this
character e(cept in the case and $rom the moment $acts e(ist which
show that the possessor is not unaware that he possesses the thing
improperly or wrong$ully.
8! 9t is presumed that possession continues to be en*oyed on
the same character in which it was ac.uired, until the contrary is
proved.
%. 2on/,nterruption ='rticles 00%, 031>
Art. 554. A present possessor who shows his possession
at some previous time% is presumed to have held possession
also during the intermediate period% in the absence of proof to
the contrar".
Art. 561. #ne who recovers% according to law% possession
unjustl" lost% shall be deemed for all purposes which ma"
redound to his benefit% to have enjo"ed it without interruption.
8% ' present possessor who shows his possession at some
previous time, is presumed to have held possession also during the
intermediate period, in the absence o$ proo$ to the contrary.
80 2ne who recovers, according to law, possession un*ustly
lost, shall be deemed $or all purposes which may redound to his
bene$it, to have en*oyed it without interruption.
0. :-tension to the <ovables 0ithin or ,nside ='rticles 0%, %3>
Art. 542. The possession of real propert" presumes that of
the movables therein% so long as it is not shown or proved that
the" should be e-cluded.
Art. 426. 0henever b" provision of the law% or an individual
declaration% the e-pression Iimmovable things or propert"%I or
Imovable things or propert"%I is used% it shall be deemed to
include% respectivel"% the things enumerated in Chapter ' and
Chapter 6.
0henever the word Imuebles%I or Ifurniture%I is used alone%
it shall not be deemed to include mone"% credits% commercial
securities% stocks and bonds% jewelr"% scientific or artistic
collections% books% medals% arms% clothing% horses or carriages
and their accessories% grains% li.uids and merchandise% or other
things which do not have as their principal object the furnishing
or ornamenting of a building% e-cept where from the conte-t of
the law% or the individual declaration% the contrar" clearl"
appears.
83 The possession o$ real property presumes that o$ the
movables therein, so long as it is not shown or proved that they
should be e(cluded.
G. &ossession in t"e concept o. a "ol+er =en concepto de tenedor>
85 The possessor in the concept o$ a holder carries with it no
assertion o$ ownership. There are no overt acts which would induce a
belie$ on the part o$ others that he is the owner.
88 The possessor in the concept o$ a holder ac,nowledges a
superior right in another person which the possessor admits is
ownership.
8: Dossession in the concept o$ a holder is ius possessionis.
This is right to possess is an independent right =i.e. lessee, trustee,
agent, antichretic creditor, pledgee, co4owner with respect to the entire
thing, etc.>
:0 Dossession in the concept o$ a holder will never become
ownership.
6E' Presumptions Applicable
1. 2on/,nterruption ='rticles 00%, 031>
Art. 554. A present possessor who shows his
possession at some previous time% is presumed to have held
possession also during the intermediate period% in the
absence of proof to the contrar".
Art. 561. #ne who recovers% according to law%
possession unjustl" lost% shall be deemed for all purposes
which ma" redound to his benefit% to have enjo"ed it without
interruption.
: ' present possessor who shows his possession at
some previous time, is presumed to have held possession also
during the intermediate period, in the absence o$ proo$ to the
contrary.
:! 2ne who recovers, according to law, possession
un*ustly lost, shall be deemed $or all purposes which may
redound to his bene$it, to have en*oyed it without interruption.
. :-tension to <ovables 0ithin or ,nside ='rticles 00, %3>
Art. 552. A possessor in good faith shall not be liable
for the deterioration or loss of the thing possessed% e-cept in
cases in which it is proved that he has acted with fraudulent
intent or negligence% after the judicial summons.
A possessor in bad faith shall be liable for
deterioration or loss in ever" case% even if caused b" a
fortuitous event.
Art. 426. 0henever b" provision of the law% or an
individual declaration% the e-pression Iimmovable things or
propert"%I or Imovable things or propert"%I is used% it shall
be deemed to include% respectivel"% the things enumerated in
Chapter ' and Chapter 6.
0henever the word Imuebles%I or Ifurniture%I is used
alone% it shall not be deemed to include mone"% credits%
commercial securities% stocks and bonds% jewelr"% scientific
or artistic collections% books% medals% arms% clothing% horses
or carriages and their accessories% grains% li.uids and
merchandise% or other things which do not have as their
principal object the furnishing or ornamenting of a building%
e-cept where from the conte-t of the law% or the individual
declaration% the contrar" clearl" appears.
:% The possession o$ real property presumes that o$ the
movables therein, so long as it is not shown or proved that they
should be e(cluded.
295 9n both possession in the concept o$ an owner and possession in the
concept o$ a holder, both are protected by 'rticle 0!:
.
:3 'c.uisition and ;oss o$ Dossession
A. Ac>uisition
:5 3o4 is it Ac=uired: Dossession is ac.uired by the material
occupation o$ a thing or the e(ercise o$ a right, or by the $act that it is
sub*ect to the action o$ our will, or by the proper acts and legal $ormalities
established $or ac.uiring such right ='rticle 0!1>
Art. 531. Possession is ac.uired b" the material occupation
of a thing or the e-ercise of a right% or b" the fact that it is subject
to the action of our will% or b" the proper acts and legal formalities
established for ac.uiring such right.
:8 Ac=uired 58 I#om: Dossession may be ac.uired by the same
person who is to en*oy it, by his legal representative, by his agent, or by
any person without any power whatever but in the last case, the
possession shall not be considered as ac.uired until the person in whose
`
Art. $(2. 1very possessor has a right to be respected in his possession& and should he be
disturbed therein he shall be protected in or restored to said possession by the means established
by the laws and the -ules o$ Court.
' possessor deprived o$ his possession through $orcible entry may within ten days $rom the
$iling o$ the complaint present a motion to secure $rom the competent court, in the action $or
$orcible entry, a writ o$ preliminary mandatory in*unction to restore him in his possession. The
court shall decide the motion within thirty =!0> days $rom the $iling thereo$.
name the act o$ possession was e(ecuted has rati$ied the same, without
pre*udice to the *uridical conse.uences o$ negotiorum gestio in a proper
case ='rt. 0!>.
Art. 532. Possession ma" be ac.uired b" the same person
who is to enjo" it% b" his legal representative% b" his agent% or b"
an" person without an" power whatever+ but in the last case% the
possession shall not be considered as ac.uired until the person in
whose name the act of possession was e-ecuted has ratified the
same% without prejudice to the juridical conse.uences of
negotiorum gestio in a proper case.
G. :oss
:: Dossession may be lost
1. G" abandonment ='rticle 000 =1>>
!00 'bandonment may either be<
a. &eranent
!01 There is no need $or the prescriptive period to run.
b. 7eporar!
!0 Drescription will run.
!0! /ee 'rticle 110
Art. 1125. An" e-press or tacit recognition which the
possessor ma" make of the owner;s right also interrupts
possession.
. G" assignment made to another either b" onerous or gratuitous
title ='rticle 000 =>>
!0% +isposition
!. G" destruction or total loss of the thing% or it goes out of
commerce ='rticle 000 =!>>
!00 /ee 'rticle 118: =1>, =>
Art. 1189. 0hen the conditions have been imposed
with the intention of suspending the efficac" of an obligation
to give% the following rules shall be observed in case of the
improvement% loss or deterioration of the thing during the
pendenc" of the condition+
5'7 ,f the thing is lost without the fault of the debtor%
the obligation shall be e-tinguished3
567 ,f the thing is lost through the fault of the debtor% he
shall be obliged to pa" damages3 it is understood
that the thing is lost when it perishes% or goes out of
commerce% or disappears in such a wa" that its
e-istence is unknown or it cannot be recovered3
%. G" possession of another subject to the provisions of Art. )8C% if
the new possession has lasted longer than ' "ear. Gut the real
right of possession is not lost till after the lapse of '4 "ears
='rticle 000 =%>>
!03 The complaint $or $orcible entry must be $iled within 1 year
$rom the $orcible entry.
!05 Accion pu5liciana must be $iled a$ter the lapse o$ 1 year $rom
the $orcible entry but be$ore the lapse o$ 10 years.
!08 9n this case, possession is not really lost until the end o$ the
10
th
year.
0. G" accion rein(in+icatoria
Art. 1120. Possession is interrupted for the purposes of
prescription% naturall" or civill".
Art. 1121. Possession is naturall" interrupted when
through an" cause it should cease for more than one "ear.
The old possession is not revived if a new possession
should be e-ercised b" the same adverse claimant.
Art. 1122. ,f the natural interruption is for onl" one "ear
or less% the time elapsed shall be counted in favor of the
prescription.
Art. 1123. Civil interruption is produced b" judicial
summons to the possessor.
Art. 1124. 1udicial summons shall be deemed not to have
been issued and shall not give rise to interruption+
5'7 ,f it should be void for lack of legal solemnities3
567 ,f the plaintiff should desist from the complaint or
should allow the proceedings to lapse3
587 ,f the possessor should be absolved from the complaint.
,n all these cases% the period of the interruption shall be
counted for the prescription.
3. G" eminent domain
,>. ?sufruct
!0: "su$ruct is a real right temporary in nature which authori7es the holder to en*oy
all the bene$its which result $rom the normal en*oyment and e(ploitation o$ anothers
property with the obligation to return at the designated time either the same thing or in
special cases its e.uivalent.
0 3 Eleents in a 8su.ruct
1. :ssential
!10 The essential element o$ a usu$ruct is that it is a real but temporary
right to en*oy someone elses property.
. 2atural
!11 The natural element o$ a usu$ruct is the obligation to preserve the
$orm and substance the property o$ another.
!1 9n e(traordinary cases ,nown as irregular or imper$ect or abnormal
usu$ruct, this natural element is not present. The usu$ructuary does not
have to return the same property.
!1! Iinds o$ 9mper$ect "su$ruct
a. Article 573
Art. 573. 0henever the usufruct includes things which%
without being consumed% graduall" deteriorate through wear
and tear% the usufructuar" shall have the right to make use
thereof in accordance with the purpose for which the" are
intended% and shall not be obliged to return them at the
termination of the usufruct e-cept in their condition at that
time3 but he shall be obliged to indemnif" the owner for an"
deterioration the" ma" have suffered b" reason of his fraud or
negligence.
!1% "su$ruct includes things which gradually deteriorate through
wear and tear
!10 "su$ructuary shall have the right to ma,e use.
!13 The usu$ructuary shall not be obliged to return the property
in its original condition.
!15 The usu$ructuary shall indemni$y the property owner $or the
deterioration in case he is guilty o$ $raud or negligence.
b. Article 574
Art. 574. 0henever the usufruct includes things which
cannot be used without being consumed% the usufructuar" shall
have the right to make use of them under the obligation of
pa"ing their appraised value at the termination of the usufruct%
if the" were appraised when delivered. ,n case the" were not
appraised% he shall have the right to return at the same .uantit"
and .ualit"% or pa" their current price at the time the usufruct
ceases.
!18 "su$ruct includes things which cannot be used without being
consumed
!1: This is a usu$ruct in name only. 9t is really a mutuum =loan>.
!0 "su$ructuary shall have the right to ma,e use.
!1 9$ the property was appraised, the usu$ructuary shall pay its
appraised value.
! 9$ the property was not appraised, the usu$ructuary may
either
i. -eturn the same .uantity and .uality& or
ii. Day their current price at the time the usu$ruct ceases
c. Article 591$ %4
Article 591$ %4. @hould the usufruct be on sterile
animals% it shall be considered% with respect to its effects% as
though constituted on fungible things.
!! /hould the usu$ruct be on sterile animals, it shall be
considered as though it was constituted on $ungible things.
!. Accidental
!% The accidental elements are those which are the sub*ect o$
stipulation =i.e. how long will the usu$ruct last>.
G. 8su.ruct Distin/uis"e+ .ro :ease
GA@,@ ?@?A*?CT !:A@:
Extent Covers all $ruits and uses as a
rule
6enerally covers only a
particular or speci$ic use
,ature o! t#e rig#t 9s always a real right 9s a real right only i$, as in the
case o$ a lease over real
property, the lease is registered
or is $or more than one year,
otherwise, it is only a personal
right
;reator o! t#e rig#t Can be created only by the
owner or by a duly authori7ed
agent, acting in behal$ o$ the
owner
The lessor may or may not be
the owner=as when there is a
sub4lease or when the lessor is
only a usu$ructuary>
.rigin Eay be created by law,
contract, last will or prescription
Eay be created as a rule only by
contract, and by way o$
e(ception, by law= as in the
case o$ an implied new lease or
when a builder has built in 6F
on the land o$ another a
building, when the land is
considerably worth more in
value than the building>
;ause The owner is more or less
passive, and allows the
usu$ructuary to en*oy the thing
given in usu$ruct Ode*a go7arP
2wner or lessor is more or less
active, and he ma,es the lessee
en*oy 4 Ohace go7arP
Repairs "su$ructuary has the duty to
ma,e ordinary repairs
The lessee generally has no
duty to pay $or repairs
7axes "su$ructuary pays $or annual
charges F ta(es on $ruits
;essees canGt constitute a
usu$ruct on the property leased
.t#er t#ings "su$ructuary may lease the
property itsel$ to another
Professor Ruben F. Balane Pa)e .4* of +,-
C. ?in+s o. 8su.ruct
1. According to @ource ='rticle 03!>
Art. 563. ?sufruct is constituted b" law% b" the will of private
persons e-pressed in acts inter (i(os or in a last will and testament%
and b" prescription.
a. Voluntary or Conventional =i.e. contracts, donations, wills>
b. ;egal ? created by law =i.e. 'rticle 3, B, Family Code>
Art. 226$ %2. The right of the parents over the fruits and
income of the child;s propert" shall be limited primaril" to the
child;s support and secondaril" to the collective dail" needs of the
famil".
. According to :-tent ='rticle 03%>
Art. 564. ?sufruct ma" be constituted on the whole or a part of
the fruits of the thing% in favor of one more persons% simultaneousl" or
successivel"% and in ever" case from or to a certain da"% purel" or
conditionall". ,t ma" also be constituted on a right% provided it is not
strictl" personal or intransmissible.
a. Total ? all o$ the $ruits
b. Dartial ? part o$ the $ruits
!. According to Persons :njo"ing the *ight of ?sufruct ='rticle 03%>
a. /imple ? only one usu$ructuary en*oys
b. Eultiple ? several usu$ructuaries en*oy
i. /imultaneous
ii. /uccessive
%. According to the Terms of the ?sufruct ='rticle 03%>
a. Dure ? no terms and conditions
b. Conditional
c. #ith a Term or Deriod
0. According to the #bject of the ?sufruct ='rticle 03%>
a. Things
b. -ights
!0 ' usu$ruct may be constituted on a right provided that it is
not strictly personal or intransmissible.
D. Ri/"ts o. t"e 8su.ructuar!
1. *ight to the fruits ='rticles 033 4 050>
Art. 566. The usufructuar" shall be entitled to all the natural%
industrial and civil fruits of the propert" in usufruct. 0ith respect to
Professor Ruben F. Balane Pa)e .4. of +,-
hidden treasure which ma" be found on the land or tenement% he shall
be considered a stranger.
Art. 567. 2atural or industrial fruits growing at the time the
usufruct begins% belong to the usufructuar".
Those growing at the time the usufruct terminates% belong to
the owner.
,n the preceding cases% the usufructuar"% at the beginning of
the usufruct% has no obligation to refund to the owner an" e-penses
incurred3 but the owner shall be obliged to reimburse at the
termination of the usufruct% from the proceeds of the growing fruits%
the ordinar" e-penses of cultivation% for seed% and other similar
e-penses incurred b" the usufructuar".
The provisions of this article shall not prejudice the rights of
third persons% ac.uired either at the beginning or at the termination of
the usufruct.
Art. 568. ,f the usufructuar" has leased the lands or tenements
given in usufruct% and the usufruct should e-pire before the
termination of the lease% he or his heirs and successors shall receive
onl" the proportionate share of the rent that must be paid b" the
lessee.
Art. 569. Civil fruits are deemed to accrue dail"% and belong to
the usufructuar" in proportion to the time the usufruct ma" last.
Art. 570. 0henever a usufruct is constituted on the right to
receive a rent or periodical pension% whether in mone" or in fruits% or
in the interest on bonds or securities pa"able to bearer% each pa"ment
due shall be considered as the proceeds or fruits of such right.
0henever it consists in the enjo"ment of benefits accruing from
a participation in an" industrial or commercial enterprise% the date of
the distribution of which is not fi-ed% such benefits shall have the
same character.
,n either case the" shall be distributed as civil fruits% and shall
be applied in the manner prescribed in the preceding article.
!3 1ntitled to all the natural, industrial, and civil $ruits o$ the property
in usu$ruct.
!5 Natural or industrial $ruits growing at the time the usu$ruct begins,
belong to the usu$ructuary. Those growing at the time the usu$ruct
terminates belong to the owner.
!8 The usu$ructuary at the beginning o$ the usu$ruct, has no obligation
to re$und to the owner any e(penses incurred.
!: The owner shall reimburse at the termination o$ the usu$ruct $rom
the proceeds o$ the growing $ruits, the ordinary e(penses o$ cultivation
incurred by the usu$ructuary.
!!0 -ents derived $rom the lease o$ properties in usu$ruct are civil
$ruits. The usu$ructuary is entitled to receive such rents only up to the
Professor Ruben F. Balane Pa)e .4+ of +,-
time o$ the e(piration o$ the usu$ruct, i$ the lease still subsists a$ter the
termination o$ the usu$ruct. For e(ample, i$ the lease is $or 0 years and
the usu$ruct terminates a$ter the
nd
year, the usu$ructuary shall be
entitled to years rent& the rent $or the remaining period will belong to the
owner.
. *ight to enjo" an" increase in the accession or an" servitude ='rticle
051>
Art. 571. The usufructuar" shall have the right to enjo" an"
increase which the thing in usufruct ma" ac.uire through accession%
the servitudes established in its favor% and% in general% all the benefits
inherent therein.
!!1 The usu$ructuary shall have the right to en*oy any increase which
the thing in usu$ruct may ac.uire through accession, the servitudes
established in its $avor, and, in general, all the bene$its inherent therein.
!. *ight to alienate the right of usufruct ='rticles 05, 0:0>
Art. 572. The usufructuar" ma" personall" enjo" the thing in
usufruct% lease it to another% or alienate his right of usufruct% even b"
a gratuitous title3 but all the contracts he ma" enter into as such
usufructuar" shall terminate upon the e-piration of the usufruct%
saving leases of rural lands% which shall be considered as subsisting
during the agricultural "ear.
Art. 590. A usufructuar" who alienates or leases his right of
usufruct shall answer for an" damage which the things in usufruct
ma" suffer through the fault or negligence of the person who
substitutes him.
!! The usu$ructuary may lease or alienate his right o$ usu$ruct, even
by gratuitous title.
!!! 'll the contracts he may enter into as such usu$ructuary shall
terminate upon the e(piration o$ the usu$ruct e(cept lease o$ rural lands,
which shall be considered as subsisting during the agricultural year.
!!% ' usu$ructuary who alienates or leases his right o$ usu$ruct shall
answer $or any damage which the things in usu$ruct may su$$er through
the $ault or negligence o$ the person who substituted him.
%. *ight to recover ='rticle 058>
Art. 578. The usufructuar" of an action to recover real propert"
or a real right% or an" movable propert"% has the right to bring the
action and to oblige the owner thereof to give him the authorit" for
this purpose and to furnish him whatever proof he ma" have. ,f in
conse.uence of the enforcement of the action he ac.uires the thing
claimed% the usufruct shall be limited to the fruits% the dominion
remaining with the owner.
Professor Ruben F. Balane Pa)e .4/ of +,-
!!0 The usu$ructuary o$ an action to recover real property or a real
right, or movable property, has the right to bring the action.
!!3 The owner is obligated to give him the authority $or this purpose
and to $urnish him whatever proo$ he may have.
!!5 9$ in conse.uence o$ the en$orcement o$ the action he ac.uires the
thing claimed, the usu$ruct shall be limited to the $ruits, the dominion
remaining with the owner.
0. *ight to make useful and ornamental e-penses ='rticle 05:>
Art. 579. The usufructuar" ma" make on the propert" held in
usufruct such useful improvements or e-penses for mere pleasure as
he ma" deem proper% provided he does not alter its form or substance3
but he shall have no right to be indemnified therefor. 9e ma"%
however% remove such improvements% should it be possible to do so
without damage to the propert".
!!8 /uch right e(ists as long as he does not alter the propertys $orm or
substance.
!!: The usu$ructuary shall have no right o$ reimbursement.
!%0 The usu$ructuary may remove use improvements i$ it is possible to
do so without causing damage to the property.
3. *ight to an" increase in the value due to indispensable repairs made
='rticle 0:%>
Art. )E=. ,f the owner should make the e-traordinar" repairs%
he shall have a right to demand of the usufructuar" the legal interest
on the amount e-pended for the time that the usufruct lasts.
@hould he not make them when the" are indispensable for the
preservation of the thing% the usufructuar" ma" make them3 but he
shall have a right to demand of the owner% at the termination of the
usufruct% the increase in value which the immovable ma" have
ac.uired b" reason of the repairs.
!%1 The usu$ruct who has made the e(traordinary repairs necessary $or
preservation is entitled to recover $rom the owner the increase in value
which the tenement ac.uired by reason o$ such wor,.
:. #bligations of the ?sufructuar"
1. To make an inventor" ='rticle 08!>
Art. 583. The usufructuar"% before entering upon the enjo"ment
of the propert"% is obliged+
5'7 To make% after notice to the owner or his legitimate
representative% an inventor" of all the propert"% which shall
contain an appraisal of the movables and a description of the
condition of the immovables3
567 To give securit"% binding himself to fulfill the obligations
imposed upon him in accordance with this Chapter.
!% 9nventory contains an appraisal o$ the movables and a description
o$ the immovables.
!%! 1$$ect o$ Not 6iving< 'rticles 083, 0::
Art. 586. @hould the usufructuar" fail to give securit" in the
cases in which he is bound to give it% the owner ma" demand that the
immovables be placed under administration% that the movables be
sold% that the public bonds% instruments of credit pa"able to order or
to bearer be converted into registered certificates or deposited in a
bank or public institution% and that the capital or sums in cash and the
proceeds of the sale of the movable propert" be invested in safe
securities.
The interest on the proceeds of the sale of the movables and
that on public securities and bonds% and the proceeds of the propert"
placed under administration% shall belong to the usufructuar".
Aurthermore% the owner ma"% if he so prefers% until the
usufructuar" gives securit" or is e-cused from so doing% retain in his
possession the propert" in usufruct as administrator% subject to the
obligation to deliver to the usufructuar" the net proceeds thereof%
after deducting the sums which ma" be agreed upon or judiciall"
allowed him for such administration.
Art. 599. The usufructuar" ma" claim an" matured credits
which form a part of the usufruct if he has given or gives the proper
securit". ,f he has been e-cused from giving securit" or has been able
to give it% or if that given is not sufficient% he shall need the
authori$ation of the owner% or of the court in default thereof% to collect
such credits.
The usufructuar" who has given securit" ma" use the capital he
has collected in an" manner he ma" deem proper. The usufructuar"
who has not given securit" shall invest the said capital at interest
upon agreement with the owner3 in default of such agreement% with
judicial authori$ation3 and% in ever" case% with securit" sufficient to
preserve the integrit" of the capital in usufruct.
!%% 1(ceptions to 6iving o$ 9nventory
a. No one will be in*ured ='rticle 080>
Art. 585. The usufructuar"% whatever ma" be the title of
the usufruct% ma" be e-cused from the obligation of making an
inventor" or of giving securit"% when no one will be injured
thereb".
b. #aiver o$ owner =i.e. stipulation in the will or contract>
. Give securit" ='rticle 08!>
Art. 583. The usufructuar"% before entering upon the enjo"ment
of the propert"% is obliged+
5'7 To make% after notice to the owner or his legitimate
representative% an inventor" of all the propert"% which shall
contain an appraisal of the movables and a description of the
condition of the immovables3
567 To give securit"% binding himself to fulfill the obligations
imposed upon him in accordance with this Chapter.
!%0 1$$ect o$ Not 6iving<
a. The owner may demand the $ollowing
1. That the immovables be placed under
administration
. That the movables be sold
!. That the public bonds, instruments o$ credit
payable to order or bearer be converted into registered certi$icates
or deposited in a ban, or public institution
%. That the capital or sums o$ in cash and the
proceeds o$ the sale o$ the movable property be invested in sa$e
securities
!%3 The interest on the proceeds o$ the sale o$ the
movables and that on the public securities and bonds and the
proceeds o$ the property placed under administration shall
belong to the usu$ructuary.
b. The owner i$ he so pre$ers shall retain possession o$ the property as
administrator until security is given.
c. The usu$ructuary who has not given security shall invest the capital
collected at interest upon agreement with the owner& in de$ault o$ the
agreement with *udicial authori7ation.
!%5 9nstances when /ecurity is Not -e.uired
a. No one will be in*ured ='rticle 080>
Art. 585. The usufructuar"% whatever ma" be the title of
the usufruct% ma" be e-cused from the obligation of making an
inventor" or of giving securit"% when no one will be injured
thereb".
b. #aiver
c. 9$ usu$ructuary is the donor o$ the property ='rticle 08%>
Art. 584. The provisions of 2o. 6 of the preceding article
shall not appl" to the donor who has reserved the usufruct of
the propert" donated% or to the parents who are usufructuaries
of their children;s propert"% e-cept when the parents contract a
second marriage.
Professor Ruben F. Balane Pa)e .4, of +,-
d. 9n case o$ usu$ruct by parents ='rticle 3, B, Family Code>
Article 226$ %2. The right of the parents over the fruits
and income of the child;s propert" shall be limited primaril" to
the child;s support and secondaril" to the collective dail" needs
of the famil".
!%8 Exception: #hen the parents contract a
nd
marriage
='rticle 08%>
Art. 584. The provisions of 2o. 6 of the preceding article
shall not appl" to the donor who has reserved the usufruct of
the propert" donated% or to the parents who are usufructuaries
of their children;s propert"% e-cept when the parents contract a
second marriage.
e. 9n case o$ caucion "uratoria ='rticle 085>
Art. 587. ,f the usufructuar" who has not given securit"
claims% b" virtue of a promise under oath% the deliver" of the
furniture necessar" for his use% and that he and his famil" be
allowed to live in a house included in the usufruct% the court
ma" grant this petition% after due consideration of the facts of
the case.
The same rule shall be observed with respect to
implements% tools and other movable propert" necessar" for an
industr" or vocation in which he is engaged.
,f the owner does not wish that certain articles be sold
because of their artistic worth or because the" have a
sentimental value% he ma" demand their deliver" to him upon
his giving securit" for the pa"ment of the legal interest on their
appraised value.
!%: ;aucion "uratoria re$ers to the case contemplated by 'rt.
085 whereby the usu$ructuary, being unable to $ile the re.uired
bond or security, $iles a veri$ied petition in the proper court, as,ing
$or the delivery o$ the house and $urniture necessary $or himsel$ and
his $amily without any bond or security.
!00 The same rule shall also be applied to the instruments or
tools necessary $or an industry or vocation in which the
usu$ructuary is engaged.
!. Due care ='rticles 08:, 310>
Art. 589. The usufructuar" shall take care of the things given in
usufruct as a good father of a famil".
Art. 610. A usufruct is not e-tinguished b" bad use of the thing
in usufruct3 but if the abuse should cause considerable injur" to the
owner% the latter ma" demand that the thing be delivered to him%
Professor Ruben F. Balane Pa)e .4- of +,-
binding himself to pa" annuall" to the usufructuar" the net proceeds
of the same% after deducting the e-penses and the compensation
which ma" be allowed him for its administration.
!01 Ta,e care o$ the things in usu$ruct as a good $ather o$ a $amily.
!0 @ad use o$ the thing in usu$ruct shall not e(tinguish the usu$ruct.
Aowever, i$ the abuse should cause considerable in*ury to the owner, the
owner may demand that the thing be delivered to him. 9$ the thing is
delivered to the owner, the owner shall deliver to the usu$ructuary the net
proceeds.
%. Answer for damages caused b" his substitute(s fault or negligence
='rticle 0:0>
Art. 590. A usufructuar" who alienates or leases his right of
usufruct shall answer for an" damage which the things in usufruct
ma" suffer through the fault or negligence of the person who
substitutes him.
!0! 9$ the usu$ructuary alienates or leases his right o$ usu$ruct, in case
the things in usu$ruct should su$$er damage by the $ault or negligence o$
the usu$ructuarys substitute, the usu$ructuary is liable.

0. ?sufruct over livestock ='rticle 0:1>
Art. 591. ,f the usufruct be constituted on a flock or herd of
livestock% the usufructuar" shall be obliged to replace with the "oung
thereof the animals that die each "ear from natural causes% or are lost
due to the rapacit" of beasts of pre".
,f the animals on which the usufruct is constituted should all
perish% without the fault of the usufructuar"% on account of some
contagious disease or an" other uncommon event% the usufructuar"
shall fulfill his obligation b" delivering to the owner the remains which
ma" have been saved from the misfortune.
@hould the herd or flock perish in part% also b" accident and
without the fault of the usufructuar"% the usufruct shall continue on
the part saved.
@hould the usufruct be on sterile animals% it shall be considered%
with respect to its effects% as though constituted on fungible things.
!0% 9$ the usu$ruct be over livestoc,, the usu$ructuary is obligated to
replace with the young, the animals that die each year $rom natural causes
or lost due to the rapacity o$ beasts.
!00 9$ the animals on which the usu$ruct is constituted should all perish,
without the $ault o$ the usu$ructuary, on account o$ some contagious
disease or any other uncommon event, the usu$ructuary shall $ul$ill his
obligation by delivering to the owner the remains which may have been
saved.
3. <ake ordinar" repairs ='rticle 0:>
Art. 592. The usufructuar" is obliged to make the ordinar"
repairs needed b" the thing given in usufruct.
G" ordinar" repairs are understood such as are re.uired b" the
wear and tear due to the natural use of the thing and are
indispensable for its preservation. @hould the usufructuar" fail to
make them after demand b" the owner% the latter ma" make them at
the e-pense of the usufructuar".
!03 The usu$ructuary is obligated to ma,e ordinary repairs.
!05 2rdinary repairs mean those repairs which arise out o$ the normal
wear and tear o$ use.
!08 9$ the usu$ructuary does not ma,e ordinary repairs, the owner may
ma,e ordinary repairs at the e(pense o$ the usu$ructuary.
5. To notif" the owner of urgent repairs ='rticle 0:!>
Art. 593. :-traordinar" repairs shall be at the e-pense of the
owner. The usufructuar" is obliged to notif" the owner when the
need for such repairs is urgent.
!0: The usu$ructuary is obligated to noti$y the owner when the need $or
such repairs is urgent.
8. To pa" interest on the amount e-pended for e-traordinar" repairs
='rticle 0:%>
Art. 594. ,f the owner should make the e-traordinar" repairs%
he shall have a right to demand of the usufructuar" the legal interest
on the amount e-pended for the time that the usufruct lasts.
@hould he not make them when the" are indispensable for the
preservation of the thing% the usufructuar" ma" make them3 but he
shall have a right to demand of the owner% at the termination of the
usufruct% the increase in value which the immovable ma" have
ac.uired b" reason of the repairs.
!30 9$ the owner should ma,e e(traordinary repairs, the usu$ructuary is
liable to pay legal interest on the amount e(pended until the e(piration o$
the usu$ruct.
:. Allow work b" owner which does not prejudice the usufructuar"
='rticle 0:0>
Art. 595. The owner ma" construct an" works and make an"
improvements of which the immovable in usufruct is susceptible% or
make new plantings thereon if it be rural% provided that such acts do
not cause a diminution in the value of the usufruct or prejudice the
right of the usufructuar".
Professor Ruben F. Balane Pa)e .*4 of +,-
!31 The owner may construct wor,s and improvements provided that
such acts do not cause a diminution o$ the value o$ the usu$ruct or
pre*udice the right o$ the usu$ructuary.
Professor Ruben F. Balane Pa)e .** of +,-
10. Pa" annual charges ='rticles 0:340:5>
Art. 596. The pa"ment of annual charges and ta-es and of
those considered as a lien on the fruits% shall be at the e-pense of the
usufructuar" for all the time that the usufruct lasts.
Art. 597. The ta-es which% during the usufruct% ma" be imposed
directl" on the capital% shall be at the e-pense of the owner.
,f the latter has paid them% the usufructuar" shall pa" him the
proper interest on the sums which ma" have been paid in that
character3 and% if the said sums have been advanced b" the
usufructuar"% he shall recover the amount thereof at the termination
of the usufruct.
!3 'nnual charges and ta(es imposed on the $ruits are shouldered by
the usu$ructuary.
!3! ;and ta(es on the usu$ruct are shouldered by the owner.
11. To notif" the owner of an" act of a 8
rd
person ='rticle 301>
Art. 601. The usufructuar" shall be obliged to notif" the owner
of an" act of a third person% of which he ma" have knowledge% that
ma" be prejudicial to the rights of ownership% and he shall be liable
should he not do so% for damages% as if the" had been caused through
his own fault.
!3% 9$ the usu$ructuary does not noti$y the owner o$ the any pre*udicial
act by a !
rd
person, the usu$ructuary shall be liable $or damages.
1. @houlder the e-penses% costs% and liabilities in suits involving the
usufruct ='rticle 30>
Art. 602. The e-penses% costs and liabilities in suits brought
with regard to the usufruct shall be borne b" the usufructuar".
0 *eturn the thing at the termination of the usufruct ='rticle 31>
Art. 612. ?pon the termination of the usufruct% the thing in
usufruct shall be delivered to the owner% without prejudice to the right
of retention pertaining to the usufructuar" or his heirs for ta-es and
e-traordinar" e-penses which should be reimbursed. After the
deliver" has been made% the securit" or mortgage shall be cancelled.
!30 9$ in case the usu$ructuary or his heirs should be reimbursed, there
would be a right o$ retention by the usu$ructuary or the heirs.
!33 '$ter delivery o$ the thing, the security shall be cancelled.
Professor Ruben F. Balane Pa)e .*. of +,-
F. 1(tinguishment o$ the "su$ruct
1. G" death of the usufructuar" ='rticle 30! =1>>
!35 1(ceptions
a. Contrary intention
b. +e$inite period
c. #hen the usu$ruct is in $avor o$ several persons
i. /uccessively or
ii. /imultaneously
. G" the e-piration of the period for which it was constituted or b" the
fulfillment of an" resolutor" condition ='rticle 30! =>>
!. G" merger of the usufruct and ownership in the same person ='rticle
30! =!>>
%. G" renunciation of the usufructuar" ='rticle 30! =%>>
0. G" the total loss of the thing in usufruct ='rticle 30! =0>>
3. G" the termination of the right of the person constituting the usufruct
='rticle 30! =3>>
5. G" prescription ='rticle 30! =5>>
8. Non4$ul$illment o$ a mode imposed on the usu$ructuary
:. -escission or annulment o$ the contract
10. ;egal ways o$ e(tinguishing usu$ruct =i.e. termination o$ parental authority
terminates the parents usu$ruct with regard to the childs adventitious
property>
11. Eutual dissent
1. 'lienation by innocent purchaser $or value ='rticle 50:
>
1!. Aappening o$ a resolutory condition
>. :A@:<:2T@
!38 'n easement is a real right constituted in anothers tenement whereby the
owner o$ the latter must re$rain $rom doing or allow something to be done on his
property $or the bene$it o$ another thing or person.
!3: The term is OeasementP is a common4law term. /ervitude is the civil law
term. ' servitude is broader in scope. For e(ample, an easement does not include
the right to draw water. Aowever at present, both terms are interchangeable.
!50 'n easement grants less rights than a usu$ruct. 'n easement never
carries with it the right to possess. The rights granted by an easement are very
limited.
`
Art. 102. The titles o$ ownership, or o$ other rights over immovable property, which are not duly
inscribed or annotated in the -egistry o$ Droperty shall not pre*udice third persons.
Professor Ruben F. Balane Pa)e .*+ of +,-
A. *"aracteristics
1. 'lways a real right
!51 Gasic *ule+ There can be N2 easement on personal property.
. Can only be imposed only on the property o$ another
!5 9t cannot be imposed on your property.
!. Droduces limitations on ownership but the ownership is not impaired
%. 9nseparable $rom the tenements $rom which it is passively or actively attached
='rticle 315>
Art. 617. :asements are inseparable from the estate to which
the" activel" or passivel" belong.
0. 9ndivisible
G. ?in+s o. Easeents
1. As to Genefit
a. Real ='rticle 31!>
Art. 613. An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of another immovable
belonging to a different owner.
The immovable in favor of which the easement is established
is called the dominant estate3 that which is subject thereto% the
servient estate.
!5! ' real easement is one in $avor o$ another immovable ? the
dominant estate.
!5% This is more common than the personal easement.
b. &ersonal
!50 ' personal easement is in $avor o$ a community, or o$ one or
more persons to whom the encumbered estate does not belong =i.e.
easement $or drawing water>.
. As to <anner of :-ercise ='rticle 310>
Art. 615. :asements ma" be continuous or discontinuous%
apparent or nonapparent.
Continuous easements are those the use of which is or ma" be
incessant% without the intervention of an" act of man.
Discontinuous easements are those which are used at intervals
and depend upon the acts of man.
Apparent easements are those which are made known and are
continuall" kept in view b" e-ternal signs that reveal the use and
enjo"ment of the same.
Professor Ruben F. Balane Pa)e .*/ of +,-
2onapparent easements are those which show no e-ternal
indication of their e-istence.
a. *ontinuous
!53 Continuous easements are those the use o$ which is or may
be incessant, without the intervention o$ any act o$ man.
b. Discontinuous
!55 +iscontinuous easements are those which are used at
intervals and depend upon the acts o$ man =i.e. right o$ way>
!. As to ,ndication of :-istence ='rticle 310>
a. Apparent
!58 'pparent easements are those which are made ,nown and
are continually ,ept in view by e(ternal signs that reveal the use and
en*oyment o$ the same.
!5: For e(ample, a right o$ way is apparent i$ the path is mar,ed
o$$.
b. #on<apparent
!80 Non4apparent easements are those which show no e(ternal
indication o$ their e(istence.
!81 For e(ample, a right o$ way is non4apparent i$ the path is not
mar,ed.
%. As to 2ature of the !imitation ='rticle 313>
Art. 616. :asements are also positive or negative.
A positive easement is one which imposes upon the owner of
the servient estate the obligation of allowing something to be done or
of doing it himself% and a negative easement% that which prohibits the
owner of the servient estate from doing something which he could
lawfull" do if the easement did not e-ist.
a. &ositi(e
!8 Dositive easements are those which impose upon the owner
o$ the servient estate the obligation o$ allowing something to be done
or o$ doing it himsel$.
i. In patiendo ='rticle 380, 1
st
part>
!8! 'llowing something to be done
ii. In !aciendo ='rticle 380,
nd
part>
!8% +oing it yoursel$
b. #e/ati(e
!80 Negative easements are those which prohibit the owner o$
the servient estate $rom doing something which he could law$ully do i$
the easement did not e(ist. 9n allowing someone to do something in
your estate, you are prohibited $rom preventing that person $rom doing
that something.
,.7E: /ome commentators believe that all easements are negative.
1asements are restrict the owners $rom doing something which they could
otherwise do. #hat appear to be positive easements are in $act really
negative easements.
1. As to @ource
a. @oluntar! ='rticle 31:>
Art. 619. :asements are established either b" law or b"
the will of the owners. The former are called legal and the latter
voluntar" easements.
!83 1stablished by the will o$ the owners
!85 9n ,ort# ,egros +ugar ;entral vs. 3idalgo, North Negros
/ugar Central =NN/C> constructed across its properties a road
connecting the mill site with the provincial highway. NN/C made the
road accessible to the public, a toll $ee being charged in cases o$ motor
vehicles, F pedestrians being allowed $ree passage. ' tuba saloon was
in the ad*oining hacienda. The owner p$ the saloon passed through the
connecting road as it was his only means o$ access. NN/C sought to
en*oin the owner o$ the tuba saloon $rom using the road in .uestion
since NN/Cs wor,ers got drun,.
!88 There are very persuasive views in the case o$ ,,+; vs.
3idalgo. The ma*ority said that NN/C voluntarily constituted an
easement o$ way in $avor o$ the general public. NN/C could not
discriminate against certain persons who may want to use the road.
This is clearly a case o$ a servitude voluntarily constituted in $avor o$
the community under 'rticle 0!1. Aaving been devoted by NN/C to the
use o$ the public in general, the road is charged wK public interest F
while so devoted. NN/C may not establish discriminatory e(ceptions
against any private persons.
!8: The dissent said that there was no easement by using the
process o$ elimination. ' voluntary easement can be created only by
will, by a donation or by a contract. 9n this case, there was no will,
donation, or contract.
b. :e/al ='rticle 31:>
!:0 1stablished by law
c. 0ixe+
!:1 ' mi(ed easement can be ac.uired through prescription
C. 6 <odes of Ac.uiring :asements
1. Title
!: Title means the *uridical act which gives rise to the servitude =i.e.
law, donation, contract, will>
!:! 'll ,inds o$ easements can be created by title
a. Continuous and apparent easements
b. Continuous and non4apparent easements
c. +iscontinuous and apparent easements
d. +iscontinuous and non4apparent easements
Professor Ruben F. Balane Pa)e .*, of +,-
!:% 1.uivalents o$ Title
a. +eed o$ recognition ='rticle 3!>
Art. 623. The absence of a document or proof showing
the origin of an easement which cannot be ac.uired b"
prescription ma" be cured b" a deed of recognition b" the
owner of the servient estate or b" a final judgment.
b. Final *udgment ='rticle 3!>
c. 'pparent sign ='rticle 3%>
Art. 624. The e-istence of an apparent sign of easement
between two estates% established or maintained b" the owner of
both% shall be considered% should either of them be alienated% as
a title in order that the easement ma" continue activel" and
passivel"% unless% at the time the ownership of the two estates
is divided% the contrar" should be provided in the title of
conve"ance of either of them% or the sign aforesaid should be
removed before the e-ecution of the deed. This provision shall
also appl" in case of the division of a thing owned in common b"
two or more persons.
!:0 9n Amor vs. ?lorentino owned a house and a camarin. The
house had ! windows. From the said windows the house receives
light and air $rom the lot where the camarin stood. The camarin and
the house were disposed o$. The windows were not closed. The /C
said that an easement o$ light and view had been established. #hen
ownership passed to theirs, nothing was done to the windows. The
new owner o$ the house continued to e(ercise the right o$ receiving
light and air through those windows. The visible and permanent
sign o$ an easement is the title that characteri7es its e(istence.
1(istence o$ the apparent sign had the same e$$ect as a title o$
ac.uisition o$ the easement o$ light and view upon death o$ original
owner.
!:3 There is an error in 'rticle 3% according to Dro$essor
@alane. 'rticle 3% provides OThe e(istence\. as title in order that
the easement may continue\P 'ccording to Dro$essor @alane, the
use o$ the word OcontinueP is wrong. 9t should be Othe easement
may ariseP since there is no easement yet. There is no easement
yet since both properties have only 1 owner. There are only seeds
o$ a potential easement.
. Prescription
!:5 2N;H continuous and apparent easements may be created by
prescription.
!:8 9n order $or an easement to be ac.uired by prescription, good $aith
or bad $aith is irrelevant. The easement can be ac.uired a$ter the lapse o$
10 years.
!:: Counting o$ the 10 year prescriptive period
Professor Ruben F. Balane Pa)e .*- of +,-
a. Dositive easements
%00 /tart counting $rom the 1
st
act constituting the e(ercise o$
the easement was per$ormed.
b. Negative easements
%01 /tart counting $rom the time when the owner o$ the
dominant estate serves a notarial prohibition on the owner o$ the
prospective servient estate.
,.7E: Eost easements are clearly positive or negative easements.
Aowever, an easement o$ light and view is both a positive and a negative
easement. There are special rules to determine the counting o$ the
prescriptive period.
0 /tart counting $rom the 1
st
act constituting the e(ercise o$ the
easement was per$ormed ? i$ the opening through which the light and
view passes is a party wall.
%0 *ationale< 9$ the neighbor does not li,e the opening, he
can always close it.
b. /tart counting $rom the time when the owner o$ the dominant estate
serves a notarial prohibition on the owner o$ the prospective servient
estate ? i$ the opening is made on the dominant owners own wall.
%0! *ationale+ The neighbor cannot close the opening since its
in the dominant owners property.
Art. 625. ?pon the establishment of an easement% all the rights
necessar" for its use are considered granted.
%0% "pon the establishment o$ an easement, all the rights necessary $or
its use are considered granted.
%00 'n e(ample o$ this is 'rticle 3%1. 'n easement $or drawing water
may carry with it the easement o$ right o$ way. 9$ the well is in the middle o$
someone elses property how can one draw water without having to pass
through that persons property)
Art. 626. The owner of the dominant estate cannot use the
easement e-cept for the benefit of the immovable originall"
contemplated. 2either can he e-ercise the easement in an" other manner
than that previousl" established.
%03 'rticle 33 is a classic case o$ an intent that $ailed. 'rticle 33 was
meant to overrule the ruling in >alderrama vs. ,ort# ,egros +ugar ;o.
%05 9n >alderrama vs. ,ort# ,egros +ugar ;o. Valderrama e(ecuted a
contract with North Negros =NN/C> whereby NN/C agreed to install a sugar
central o$ minimum capacity o$ !00 tons $or grinding and milling al sugar cane
grown by Valderrama who in turn bound himsel$ to $urnish the central all the
cane they might produce. ' railroad was constructed on Valderramas land to
transport the sugarcane harvested. Aowever, Valderrama was unable to
supply the re.uired amount o$ sugarcane. NN/C had to contract with other
sugarcane growers. Valderrama alleges that the easement granted in $avor o$
North Negros was only $or the transportation o$ the sugarcane o$ Valderrama.
The /C said that the easement was created to enable NN/C to build and
maintain a railroad $or transportation o$ sugar cane. To limit use e(clusively to
the cane o$ the hacienda owners would ma,e the contract ine$$ective.
Furthermore, it is against the nature o$ the easement to pretend that it was
established in $avor o$ the servient estates. The easement was created in $avor
o$ the corporation and not $or the hacienda owners. The corporation may allow
its wagons to pass by the trac,s as many times as it may deem $it.
%08 The solution to the problem in >alderrama vs. ,,+; would be to
stipulate in the contract that a violation o$ the any o$ the conditions would
terminate the easement.
Art. 627. The owner of the dominant estate ma" make% at his own
e-pense% on the servient state an" works necessar" for the use and
preservation of the servitude% but without altering it or rendering it more
burdensome.
Aor this purpose he shall notif" the owner of the servient estate%
and shall choose the most convenient time and manner so as to cause the
least inconvenience to the owner of the servient estate.
%0: 't his own e(pense, the owner o$ the dominant estate may ma,e
any wor,s on the servient estate which are necessary $or the use and
preservation o$ the servitude.
%10 /uch wor,s cannot alter or ma,e the servitude more burdensome.
%11 The owner o$ the dominant estate must noti$y the owner o$ the
servient estate. The owner o$ the dominant estate must choose the most
convenient time and manner so as to cause the least inconvenience to the
owner o$ the servient estate.
Art. 628. @hould there be several dominant estates% the owners of
all of them shall be obliged to contribute to the e-penses referred to in
the preceding article% in proportion to the benefits which each ma" derive
from the work. An" one who does not wish to contribute ma" e-empt
himself b" renouncing the easement for the benefit of the others.
,f the owner of the servient estate should make use of the
easement in an" manner whatsoever% he shall also be obliged to
contribute to the e-penses in the proportion stated% saving an agreement
to the contrar".
%1 9$ there are several dominant estates with a common servitude, the
e(penses $or its use and preservation shall be shouldered by the owners o$ the
dominant estates in proportion to the bene$it that they receive.
%1! 9n the absence o$ proo$ to the contrary, the presumption is that the
bene$its are e.ual.
%1% 9$ the owner o$ the servient estate also ma,es use o$ the servitude,
he must also contribute in proportion to the bene$it he receives.
Professor Ruben F. Balane Pa)e ..4 of +,-
D. Extin/uis"ent o. Easeents
1. G" merger of ownership of the dominant and servient estates
%10 The merger must be complete, absolute and permanent.
%13 9$ the owner o$ the servient estate becomes a co4owner o$ the
dominant estate, the easement subsists since the merger is not complete.
%15 9$ the sale is a pacto de retro sale, then the merger is not complete.
The easement is only suspended
. :-tinctive prescription
%18 'll the dominant owner o$ the estate has to do is to stop using it
continuously.
%1: 9n the case o$ legal easements, the right to claim is never
e(tinguished. 'll the dominant owner o$ the estate has to do is to claim it.
!. 0hen either or both of the estates fall into such condition that the
easement cannot be used. 9owever% it shall be revived if the
subse.uent condition of either or both of the estates should permit its
use. This is however subject to e-tinctive prescription
%0 This is not a ground $or e(tinguishments. This is a ground $or
suspension o$ the easement. The suspension may eventually lead to
e(tinguishment o$ the easement i$ there is e(tinctive prescription.
%. :-piration of the term of the fulfillment of the condition
0. *enunciation of the owner of the dominant estate
%1 There is dispute as to whether or not the renunciation can be tacit
or not. 'ccording to Dro$essor @alane, it can be tacit under 'rticle 3 o$ the
Civil Code. -ights may be waived. There is no prescribed $orm.
3. Gu" off the easement
5. :-propriation of the servient estate
% There can be no easement over property o$ the public dominion.
8. Permanent impossibilit" to make use of the easement
:. Annulment or cancellation of the contract of easement
10. *esolution of grantor(s right to create the easement
%! ' sells land to @ via a pacto de retro sale. @ while being a vendee
de retro grants an easement to C. 9$ ', the vendor, redeems, the
easement given to C is e(tinguished.
11. *egistration of the servient estate as free and without an"
encumbrance in the Torrens @"stem in favor of an innocent
purchaser for value
Professor Ruben F. Balane Pa)e ..* of +,-
1. Cessation of necessit"% in case of a legal easement of right of wa"
='rticle 300
>
:. !egal :asements =Droper>
1. 0aters
%% The #ater Code ='rticles !140> amends many o$ the easements.
425 'rticles 0 and 100
o$ the #ater Code are the repealing clauses

%3 'rticle 3!5 =natural drainage o$ lands> has been superseded by
'rticle 00 o$ the #ater Code.
Art. 637. !ower estates are obliged to receive the waters
which naturall" and without the intervention of man descend from
the higher estates% as well as the stones or earth which the" carr"
with them.
The owner of the lower estate cannot construct works which
will impede this easement3 neither can the owner of the higher
estate make works which will increase the burden.
Art. 50$ 9ater *o+e. !ower estates are obliged to receive
the waters which naturall" and without the intervention of man
flow from the higher estate% as well as the stone or earth which
the" carr" with them.
The owner of the lower estate can not construct works which
will impede this natural flow% unless he provides an alternative
method of drainage3 neither can the owner of the higher estate
make works which will increase this natural flow.
Art. &$$. 9$ the right o$ way granted to a surrounded estate ceases to be necessary because its
owner has *oined it to another abutting on a public road, the owner o$ the servient estate may
demand that the easement be e(tinguished, returning what he may have received by way o$
indemnity. The interest on the indemnity shall be deemed to be in payment o$ rent $or the use o$
the easement.
The same rule shall be applied in case a new road is opened giving access to the isolated
estate.
9n both cases, the public highway must substantially meet the needs o$ the dominant
estate in order that the easement may be e(tinguished.
Art. $%. The establishment, e(tent, $orm, and conditions o$ easements o$ water not e(pressly
determined by the provisions o$ this Code shall be governed by the provisions o$ the Civil Code.
Art. )00. The $ollowing laws, parts andKor provisions o$ laws are hereby repealed<
a. The provisions o$ the /panish ;aw on #aters o$ 'ugust !, 1833, the Civil Code o$ /pain o$
188: and the Civil Code o$ the Dhilippines =-.'. !83> on ownership o$ waters, easements
relating to waters, use o$ public waters and ac.uisitive prescription on the use o$ waters,
which are inconsistent with the provisions o$ this Code&
b. The provisions o$ -.'. 3!:0, otherwise ,nown as the -evised Charter o$ National Dower
Corporation, particularly section !, paragraph =$>, and section 1, inso$ar as they relate to
the appropriation o$ waters and the grant thereo$&
c. The provisions o$ 'ct No. 10, as amended, otherwise ,nown as the 9rrigation 'ct, section
!, paragraphs =,> and =m> o$ D.+. No. 81!, -.'. 003& /ection :0, C.'. 1!5& and,
d. 'll +ecree, ;aws, 'cts, parts o$ 'cts, rules o$ Court, e(ecutive orders, and administrative
regulations which are contrary to or inconsistent with the provisions o$ this Code.
Professor Ruben F. Balane Pa)e ... of +,-
%5 'rticle 3!8 =tow path> has been superseded by 'rticle 01 o$ the
#ater Code.
Art. 638. The banks of rivers and streams% even in case
the" are of private ownership% are subject throughout their entire
length and within a $one of three meters along their margins% to
the easement of public use in the general interest of navigation%
floatage% fishing and salvage.
:states adjoining the banks of navigable or floatable rivers
are% furthermore% subject to the easement of towpath for the
e-clusive service of river navigation and floatage.
,f it be necessar" for such purpose to occup" lands of private
ownership% the proper indemnit" shall first be paid.
Art. 51$ 9ater *o+e. The banks of rivers and streams and
the shores of the seas and lakes throughout their entire length and
within a $one of three 587 meters in urban areas% twent" 5647
meters in agricultural areas and fort" 5=47 meters in forest areas%
along their margins are subject to the easement of public use in
the interest of recreation% navigation% floatage% fishing and salvage.
2o person shall be allowed to sta" in this $one longer than what is
necessar" for recreation% navigation% floatage% fishing or salvage or
to build structures of an" kind.
%8 'rticle 3!: =easement o$ dam> has been superseded by 'rticles !8
and !: o$ the #ater Code.
Art. 639. 0henever for the diversion or taking of water from
a river or brook% or for the use of an" other continuous or
discontinuous stream% it should be necessar" to build a dam% and
the person who is to construct it is not the owner of the banks% or
lands which must support it% he ma" establish the easement of
abutment of a dam% after pa"ment of the proper indemnit".
Art. 38$ 9ater *o+e. Authorit" for the construction of dams%
bridges and other structures across of which ma" interfere with
the flow of navigable or flotable waterwa"s shall first be secured
from the Department of Public 0orks% Transportation and
Communications.
Art. 39$ 9ater *o+e. :-cept in cases of emergenc" to save
life or propert"% the construction or repair of the following works
shall be undertaken onl" after the plans and specifications
therefor% as ma" be re.uired b" the Council% are approved b" the
proper government agenc"3 dams for the diversion or storage of
water3 structures for the use of water power% installations for the
utili$ation of subterranean or ground water and other structures
for utili$ation of water resources.
%: 'rticles 3%043%1 are the provisions regarding easement $or drawing
o$ waters.
Professor Ruben F. Balane Pa)e ..+ of +,-
Art. 640. Compulsor" easements for drawing water or for
watering animals can be imposed onl" for reasons of public use in
favor of a town or village% after pa"ment of the proper indemnit".
Art. 641. :asements for drawing water and for watering
animals carr" with them the obligation of the owners of the
servient estates to allow passage to persons and animals to the
place where such easements are to be used% and the indemnit"
shall include this service.
%!0 'rticles 3%43%3 are the provisions $or the easement o$ a.ueduct.
This should be correlated with 'rticle %: o$ the #ater Code.
Art. 642. An" person who ma" wish to use upon his own
estate an" water of which he can dispose shall have the right to
make it flow through the intervening estates% with the obligation to
indemnif" their owners% as well as the owners of the lower estates
upon which the waters ma" filter or descend.
Art. 643. #ne desiring to make use of the right granted in
the preceding article is obliged+
5'7 To prove that he can dispose of the water and that it is
sufficient for the use for which it is intended3
567 To show that the proposed right of wa" is the most
convenient and the least onerous to third persons3
587 To indemnif" the owner of the servient estate in the
manner determined b" the laws and regulations.
Art. 644. The easement of a.ueduct for private interest
cannot be imposed on buildings% court"ards% anne-es% or
outhouses% or on orchards or gardens alread" e-isting.
Art. 645. The easement of a.ueduct does not prevent the
owner of the servient estate from closing or fencing it% or from
building over the a.ueduct in such manner as not to cause the
latter an" damage% or render necessar" repairs and cleanings
impossible.
Art. 646. Aor legal purposes% the easement of a.ueduct
shall be considered as continuous and apparent% even though the
flow of the water ma" not be continuous% or its use depends upon
the needs of the dominant estate% or upon a schedule of alternate
da"s or hours.
%!1 'rticle 3%5 is the easement $or the construction o$ stop loc, and
sluice gate.
Art. 647. #ne who for the purpose of irrigating or
improving his estate% has to construct a stop lock or sluice gate in
the bed of the stream from which the water is to be taken% ma"
Professor Ruben F. Balane Pa)e ../ of +,-
demand that the owners of the banks permit its construction% after
pa"ment of damages% including those caused b" the new easement
to such owners and to the other irrigators.
%! 'rticle 0 o$ the #ater Code is the easement $or appropriation and
use o$ waters.
Art. 25$ 9ater *o+e. A holder of water permit ma" demand
the establishment of easements necessar" for the construction and
maintenance of the works and facilities needed for the beneficial
use of the waters to be appropriated subject to the re.uirements of
just compensation and to the following conditions+
a. That he is the owner% lessee% mortgagee or one having real
right over the land upon which he proposes to use water3
and
b. That the proposed easement is the most convenient and the
least onerous to the servient estate.
:asements relating to the appropriation and use of waters
ma" be modified b" agreement of the contracting parties provided
the same is not contrar" to law or prejudicial to third persons.
. *ight of wa" ='rticles 3%:4305>
Art. 649. The owner% or an" person who b" virtue of a real right
ma" cultivate or use an" immovable% which is surrounded b" other
immovables pertaining to other persons and without ade.uate outlet
to a public highwa"% is entitled to demand a right of wa" through the
neighboring estates% after pa"ment of the proper indemnit".
@hould this easement be established in such a manner that its
use ma" be continuous for all the needs of the dominant estate%
establishing a permanent passage% the indemnit" shall consist of the
value of the land occupied and the amount of the damage caused to
the servient estate.
,n case the right of wa" is limited to the necessar" passage for
the cultivation of the estate surrounded b" others and for the
gathering of its crops through the servient estate without a
permanent wa"% the indemnit" shall consist in the pa"ment of the
damage caused b" such encumbrance.
This easement is not compulsor" if the isolation of the
immovable is due to the proprietor;s own acts.
Art. 650. The easement of right of wa" shall be established at
the point least prejudicial to the servient estate% and% insofar as
consistent with this rule% where the distance from the dominant estate
to a public highwa" ma" be the shortest.
Art. 651. The width of the easement of right of wa" shall be
that which is sufficient for the needs of the dominant estate% and ma"
accordingl" be changed from time to time.
Art. 652. 0henever a piece of land ac.uired b" sale% e-change
or partition% is surrounded b" other estates of the vendor% e-changer%
or co/owner% he shall be obliged to grant a right of wa" without
indemnit".
,n case of a simple donation% the donor shall be indemnified b"
the donee for the establishment of the right of wa".
Art. 653. ,n the case of the preceding article% if it is the land of
the grantor that becomes isolated% he ma" demand a right of wa" after
pa"ing a indemnit". 9owever% the donor shall not be liable for
indemnit".
Art. 654. ,f the right of wa" is permanent% the necessar"
repairs shall be made b" the owner of the dominant estate. A
proportionate share of the ta-es shall be reimbursed b" said owner to
the proprietor of the servient estate.
Art. 655. ,f the right of wa" granted to a surrounded estate
ceases to be necessar" because its owner has joined it to another
abutting on a public road% the owner of the servient estate ma"
demand that the easement be e-tinguished% returning what he ma"
have received b" wa" of indemnit". The interest on the indemnit" shall
be deemed to be in pa"ment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
,n both cases% the public highwa" must substantiall" meet the
needs of the dominant estate in order that the easement ma" be
e-tinguished.
Art. 656. ,f it be indispensable for the construction% repair%
improvement% alteration or beautification of a building% to carr"
materials through the estate of another% or to raise therein scaffolding
or other objects necessar" for the work% the owner of such estate shall
be obliged to permit the act% after receiving pa"ment of the proper
indemnit" for the damage caused him.
Art. 657. :asements of the right of wa" for the passage of
livestock known as animal path% animal trail or an" other% and those
for watering places% resting places and animal folds% shall be governed
b" the ordinances and regulations relating thereto% and% in the
absence thereof% b" the usages and customs of the place.
0ithout prejudice to rights legall" ac.uired% the animal path
shall not e-ceed in an" case the width of C) meters% and the animal
trail that of 8C meters and )4 centimeters.
0henever it is necessar" to establish a compulsor" easement of
the right of wa" or for a watering place for animals% the provisions of
this @ection and those of articles B=4 and B=' shall be observed. ,n
this case the width shall not e-ceed '4 meters.
%!! -e.uisites $or an 1asement o$ -ight o$ #ay
a. The dominant estate is surrounded by other immovables without an
ade.uate outlet to a public highway
%!% The right o$ way may be demanded<
i. #hen there is absolutely no access to a public highway
ii. #hen, even i$ there is one, it is di$$icult or dangerous to use, or
is grossly insu$$icient =i.e. access is through a steep cli$$>
%!0 Eere inconvenience is not aground $or demanding the
easement o$ right o$ way =i.e. there is an ade.uate outlet, but it is
not paved>
b. The dominant estate is willing to pay the proper indemnity
%!3 9$ the right o$ way is permanent, payment shall be
e.uivalent to the value o$ the land occupied and the amount o$ the
damage caused to the servient estate.
%!5 /uch payment $or permanent use does not mean that the
owner o$ the dominant estate now owns such portion o$ the land.
%!8 9$ a piece o$ land is ac.uired by sale, e(change, partition or
partition, and the land is surrounded by other estates o$ the vendor,
e(changer or co4owner, a right o$ way shall be given without having
to pay the indemnity ='rticle 30>
%!: 9$ it is the land o$ the vendor, e(changer or co4owner that
becomes isolated, he may demand a right o$ way, provided that he
pay the proper indemnity ='rticle 30!>
%%0 9$ a piece o$ land is ac.uired by donation, and such land is
surrounded by other estates o$ the donor, the donee must pay the
proper indemnity in order to get a right o$ way ='rticle 30>.
%%1 9$ it is the land o$ the donor that becomes isolated, he may
demand a right o$ way without having to pay the indemnity ='rticle
30!>.
c. The isolation was not due to the acts o$ the proprietor o$ the dominant
estate
%% 9n 'rticle 3%:, it states that the isolation must not be due to
the act o$ the proprietor o$ the dominant estate. Het, in 'rticle 30!,
the proprietor o$ the dominant estate may demand an easement o$
right o$ way even though the isolation was caused by his act. 9s
there a con$lict between 'rticle 3%: and 'rticle 30!) To reconcile,
'rticle 30! deals with a speci$ic instance.
d. That the right o$ way claimed is at the point least pre*udicial to the
servient estate& and inso$ar as consistent with this rule, where the
distance $rom the dominant estate to a public highway may be the
shortest.
%%! 1(tinguishment o$ 1asements o$ -ight o$ #ay ='rticle 300>
%%% The $act that an ade.uate outlet has been created does not
automatically e(tinguish the a legal easement o$ right o$ way. 9t must
be as,ed $or by the owner o$ the servient estate.
Professor Ruben F. Balane Pa)e .., of +,-
%%0 The owner o$ the dominant estate cannot demand that the
easement be e(tinguished.
%%3 'rticle 300 is applicable only to legal easements o$ right o$
way. 9t does not apply to voluntary easements o$ right o$ way.
Professor Ruben F. Balane Pa)e ..- of +,-
!. Part" wall ='rticles 3084333>
Art. 658. The easement of part" wall shall be governed b" the
provisions of this Title% b" the local ordinances and customs insofar as
the" do not conflict with the same% and b" the rules of co/ownership.
Art. 659. The e-istence of an easement of part" wall is
presumed% unless there is a title% or e-terior sign% or proof to the
contrar"+
5'7 ,n dividing walls of adjoining buildings up to the point of
common elevation3
567 ,n dividing walls of gardens or "ards situated in cities% towns%
or in rural communities3
587 ,n fences% walls and live hedges dividing rural lands.
Art. 660. ,t is understood that there is an e-terior sign%
contrar" to the easement of part" wall+
5'7 0henever in the dividing wall of buildings there is a window
or opening3
567 0henever the dividing wall is% on one side% straight and plumb
on all its facement% and on the other% it has similar conditions
on the upper part% but the lower part slants or projects
outward3
587 0henever the entire wall is built within the boundaries of one
of the estates3
5=7 0henever the dividing wall bears the burden of the binding
beams% floors and roof frame of one of the buildings% but not
those of the others3
5)7 0henever the dividing wall between court"ards% gardens% and
tenements is constructed in such a wa" that the coping sheds
the water upon onl" one of the estates3
5B7 0henever the dividing wall% being built of masonr"% has
stepping stones% which at certain intervals project from the
surface on one side onl"% but not on the other3
5C7 0henever lands inclosed b" fences or live hedges adjoin
others which are not inclosed.
,n all these cases% the ownership of the walls% fences or hedges
shall be deemed to belong e-clusivel" to the owner of the propert" or
tenement which has in its favor the presumption based on an" one of
these signs.
Art. 661. Ditches or drains opened between two estates are
also presumed as common to both% if there is no title or sign showing
the contrar".
There is a sign contrar" to the part/ownership whenever the
earth or dirt removed to open the ditch or to clean it is onl" on one
side thereof% in which case the ownership of the ditch shall belong
e-clusivel" to the owner of the land having this e-terior sign in its
favor.
Art. 662. The cost of repairs and construction of part" walls and
the maintenance of fences% live hedges% ditches% and drains owned in
common% shall be borne b" all the owners of the lands or tenements
having the part" wall in their favor% in proportion to the right of each.
2evertheless% an" owner ma" e-empt himself from contributing
to this charge b" renouncing his part/ownership% e-cept when the
part" wall supports a building belonging to him.
Art. 663. ,f the owner of a building% supported b" a part" wall
desires to demolish the building% he ma" also renounce his part/
ownership of the wall% but the cost of all repairs and work necessar"
to prevent an" damage which the demolition ma" cause to the part"
wall% on this occasion onl"% shall be borne b" him.
Art. 664. :ver" owner ma" increase the height of the part"
wall% doing at his own e-pense and pa"ing for an" damage which ma"
be caused b" the work% even though such damage be temporar".
The e-penses of maintaining the wall in the part newl" raised or
deepened at its foundation shall also be paid for b" him3 and% in
addition% the indemnit" for the increased e-penses which ma" be
necessar" for the preservation of the part" wall b" reason of the
greater height or depth which has been given it.
,f the part" wall cannot bear the increased height% the owner
desiring to raise it shall be obliged to reconstruct it at his own
e-pense and% if for this purpose it be necessar" to make it thicker% he
shall give the space re.uired from his own land.
Art. 665. The other owners who have not contributed in giving
increased height% depth or thickness to the wall ma"% nevertheless%
ac.uire the right of part/ownership therein% b" pa"ing proportionall"
the value of the work at the time of the ac.uisition and of the land
used for its increased thickness.
Art. 666. :ver" part/owner of a part" wall ma" use it in
proportion to the right he ma" have in the co/ownership% without
interfering with the common and respective uses b" the other co/
owners.
%%5 ' party wall is a common wall built along the dividing line o$
ad*oining estates.
%%8 Nature o$ a Darty #all
a. 1asement
%%: Eanresa and Castan believe that a party wall is
predominantly an easement.
Professor Ruben F. Balane Pa)e .+4 of +,-
b. Co4ownership =i.e. 'rticle 333>
%00 /anche7 -oman believes that a party wall is predominantly a
co4ownership
%01 /pecial Characteristics o$ a Darty #all as Co42wnership
i. This co4ownership is indivisible
%0 Cannot physically divide
ii. The parts pertaining to each co4owner can be materially
designated and yet the whole wall is co4owned
iii. The rights o$ a co4owner o$ a party wall are greater than an
ordinary co4owner
%0! Eaintenance and -epair o$ Darty #all ='rticle 33>
%0% General *ule+ The e(pense $or the repair and maintenance
o$ the party wall shall be shouldered by the co4owners in proportion to
the right o$ each.
Presumption+ Co4owners have e.ual proportion =share e.ually in the
e(penses>.
455 Exceptions:
a. The e(pense $or the repair o$ the party wall can be shouldered by 1
co4owner, but the co4owner who does not contribute must renounce
his share in the party wall.
%03 Commentators are o$ di$$erent opinions regarding the
e(tent o$ the renunciation ? total or proportional to the amount
o$ repairs.
b. #hen the de$ects are caused by 1 owner, he shall pay $or all the
e(penses $or repair
%05 9$ the damage was due to the $ault o$ one owner
%08 Dresumption o$ Darty #all
%0: ' party wall is presumed when a wall divides
a. 'd*oining buildings
b. 6ardens or yards situated in cities, towns or in rural communities
c. -ural lands
%30 This presumption may be rebutted i$ there is a contrary
a. Title& or
b. 1(terior sign or
%31 The $ollowing are e(terior signs which will be rebut
the presumption
i. ' window or opening in the dividing wall
ii. 2n 1 side, the wall is straight and then the wall *uts out
%3 ' buttress is placed part where the wall *uts
out. This is done in order to prevent the neighbor $rom
invading his property.
Professor Ruben F. Balane Pa)e .+* of +,-
iii. The entire wall is built within the boundary o$ 1 o$ the
estates =not along the boundary o$ the estates>
iv. #hen the wall supports the building o$ 1 estate but not the
other
v. #hen the dividing wall between the courtyards, gardens,
and tenements is constructed in such a way that the coping
sheds the water upon only 1 o$ the estates
vi. /tepping stones only on 1 side o$ the wall
vii. #hen 1 estate is enclosed but the other is not
%3! Commentators do not agree as to whether or not this
enumeration is e(clusive.
c. Droo$
%. !ight and view ='rticles 335435!>
Art. 667. 2o part/owner ma"% without the consent of the
others% open through the part" wall an" window or aperture of an"
kind.
Art. 668. The period of prescription for the ac.uisition of an
easement of light and view shall be counted+
5'7 Arom the time of the opening of the window% if it is through a
part" wall3 or
567 Arom the time of the formal prohibition upon the proprietor of
the adjoining land or tenement% if the window is through a
wall on the dominant estate.
Art. 669. 0hen the distances in article BC4 are not observed%
the owner of a wall which is not part" wall% adjoining a tenement or
piece of land belonging to another% can make in it openings to admit
light at the height of the ceiling joints or immediatel" under the
ceiling% and of the si$e of thirt" centimeters s.uare% and% in ever"
case% with an iron grating imbedded in the wall and with a wire
screen.
2evertheless% the owner of the tenement or propert" adjoining
the wall in which the openings are made can close them should he
ac.uire part/ownership thereof% if there be no stipulation to the
contrar".
9e can also obstruct them b" constructing a building on his land
or b" raising a wall thereon contiguous to that having such openings%
unless an easement of light has been ac.uired.
Art. 670. 2o windows% apertures% balconies% or other similar
projections which afford a direct view upon or towards an adjoining
land or tenement can be made% without leaving a distance of two
meters between the wall in which the" are made and such contiguous
propert".
Professor Ruben F. Balane Pa)e .+. of +,-
2either can side or obli.ue views upon or towards such
conterminous propert" be had% unless there be a distance of si-t"
centimeters.
The nonobservance of these distances does not give rise to
prescription.
Art. 671. The distance referred to in the preceding article shall
be measured in cases of direct views from the outer line of the wall
when the openings do not project% from the outer line of the latter
when the" do% and in cases of obli.ue view from the dividing line
between the two properties.
Art. 672. The provisions of article BC4 are not applicable to
buildings separated b" a public wa" or alle"% which is not less than
three meters wide% subject to special regulations and local ordinances.
Art. 673. 0henever b" an" title a right has been ac.uired to
have direct views% balconies or belvederes overlooking an adjoining
propert"% the owner of the servient estate cannot build thereon at less
than a distance of three meters to be measured in the manner
provided in article BC'. An" stipulation permitting distances less than
those prescribed in article BC4 is void.
%3% +i$$erent 1asements
1. 1asement o$ light =luminis)
%30 The easement o$ light is the right to ma,e an opening not
greater than !0 centimeters s.uare and to receive light $rom
anothers tenement.
%33 The opening must be made on the ceiling or i$ on the wall,
there must be an iron grating =so you cant loo, out, otherwise, it
becomes an easement o$ light and view>.
%35 No minimum distance re.uired.
. 1asement o$ light and view =luminis et prospectus>
%38 The easement o$ light and view is the right to open windows
and apertures and to bar the owner o$ the servient estate to bloc,
the view.
%3: The easement o$ view necessarily carries with it the
easement o$ light.
%50 +irect View< There must be a minimum distance o$ meters
$rom the wall o$ the opening and the contiguous property.
%51 2bli.ue View< There must be a minimum distance o$ 30
centimeters $rom the wall o$ the opening and the contiguous
property.
%5 Non4observance o$ the minimum distances will not create an
easement.
%5! The owner o$ the servient estate cannot build within !
meters $rom the boundary between the servient and the dominant
Professor Ruben F. Balane Pa)e .++ of +,-
estate. Thus, there is 0 meters between the wall o$ the opening
and any structure o$ the servient estate.
%5% The obligation not to build higher accompanies the
easements o$ light and view.
%50 'c.uiring by Drescription
a. /tart counting $rom the 1
st
act constituting the e(ercise o$ the
easement was per$ormed ? i$ the opening through which the light and
view passes is a party wall.
%53 *ationale+ 9$ the neighbor does not li,e the opening, he
can always close it.
b. /tart counting $rom the time when the owner o$ the dominant estate
serves a notarial prohibition on the owner o$ the prospective servient
estate ? i$ the opening is made on the dominant owners own wall.
%55 -ationale< The neighbor cannot close the opening since its
in the dominant owners property.
A. ,t"er 5o<*alle+ :e/al Easeents =Not /trictly /pea,ing ;egal 1asements>
1. Drainage of buildings ='rticles 35%4353>
Art. 674. The owner of a building shall be obliged to construct
its roof or covering in such manner that the rain water shall fall on his
own land or on a street or public place% and not on the land of his
neighbor% even though the adjacent land ma" belong to two or more
persons% one of whom is the owner of the roof. :ven if it should fall on
his own land% the owner shall be obliged to collect the water in such a
wa" as not to cause damage to the adjacent land or tenement.
Art. 675. The owner of a tenement or a piece of land% subject to
the easement of receiving water falling from roofs% ma" build in such
manner as to receive the water upon his own roof or give it another
outlet in accordance with local ordinances or customs% and in such a
wa" as not to cause an" nuisance or damage whatever to the
dominant estate.
Art. 676. 0henever the "ard or court of a house is surrounded
b" other houses% and it is not possible to give an outlet through the
house itself to the rain water collected thereon% the establishment of
an easement of drainage can be demanded% giving an outlet to the
water at the point of the contiguous lands or tenements where its
egress ma" be easiest% and establishing a conduit for the drainage in
such manner as to cause the least damage to the servient estate% after
pa"ment of the propert" indemnit".
%58 This is not really an easement. -ather, it is a limitation o$ the right
o$ ownership.
Professor Ruben F. Balane Pa)e .+/ of +,-
. ,ntermediate distances ='rticles 3554381>
Art. 677. 2o constructions can be built or plantings made near
fortified places or fortresses without compliance with the conditions
re.uired in special laws% ordinances% and regulations relating thereto.
Art. 678. 2o person shall build an" a.ueduct% well% sewer%
furnace% forge% chimne"% stable% depositor" of corrosive substances%
machiner"% or factor" which b" reason of its nature or products is
dangerous or no-ious% without observing the distances prescribed b"
the regulations and customs of the place% and without making the
necessar" protective works% subject% in regard to the manner thereof%
to the conditions prescribed b" such regulations. These prohibitions
cannot be altered or renounced b" stipulation on the part of the
adjoining proprietors.
,n the absence of regulations% such precautions shall be taken
as ma" be considered necessar"% in order to avoid an" damage to the
neighboring lands or tenements.
Art. 679. 2o trees shall be planted near a tenement or piece of
land belonging to another e-cept at the distance authori$ed b" the
ordinances or customs of the place% and% in the absence thereof% at a
distance of at least two meters from the dividing line of the estates if
tall trees are planted and at a distance of at least fift" centimeters if
shrubs or small trees are planted.
:ver" landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or tenement be
uprooted.
The provisions of this article also appl" to trees which have
grown spontaneousl".
Art. 680. ,f the branches of an" tree should e-tend over a
neighboring estate% tenement% garden or "ard% the owner of the latter
shall have the right to demand that the" be cut off insofar as the" ma"
spread over his propert"% and% if it be the roots of a neighboring tree
which should penetrate into the land of another% the latter ma" cut
them off himself within his propert".
Art. 681. Aruits naturall" falling upon adjacent land belong to
the owner of said land.
%5: 'gain, this is a limitation o$ ownership and not an easement.
%80 This is basically 7oning which can be modi$ied by laws and
ordinances.
!. :asement against nuisances ='rticles 38438!>
Art. 682. :ver" building or piece of land is subject to the
easement which prohibits the proprietor or possessor from
committing nuisance through noise% jarring% offensive odor% smoke%
heat% dust% water% glare and other causes.
Art. 683. @ubject to $oning% health% police and other laws and
regulations% factories and shops ma" be maintained provided the least
possible anno"ance is caused to the neighborhood.
%81 This is also a limitation o$ ownership and not an easement.
%8 Nuisance is any act, omission, establishment, condition, property or
anything else which ='rticle 3:%><
a. 9n*ures or endangers the health or sa$ety o$ others& or
b. 'nnoys or o$$ends the senses& or
c. /hoc,s, de$ies or disregards decency or morality& or
d. 2bstructs or inter$eres with the $ree passage o$ any public highway or
streets, or any body o$ water& or
e. Ainders or impairs the use o$ property.
%. !ateral and subjacent support ='rticles 38%4385>
5ec. 684. 2o proprietor shall make such e-cavations upon his
land as to deprive an" adjacent land or building of sufficient lateral or
subjacent support.
Art. 685. An" stipulation or testamentar" provision allowing
e-cavations that cause danger to an adjacent land or building shall be
void.
Art. 686. The legal easement of lateral and subjacent support is
not onl" for buildings standing at the time the e-cavations are made
but also for constructions that ma" be erected.
Art. 687. An" proprietor intending to make an" e-cavation
contemplated in the three preceding articles shall notif" all owners of
adjacent lands.
%8! 9n lateral support, there is an obligation to see to it that the
structures on your neighbors land will not collapse $rom your lands lac, o$
support.
%8% 9n sub*acent support, the owner o$ the sur$ace and the sub4sur$ace
are di$$erent.
G. >oluntar" :asements
%80 2ne can create voluntary easements in $avor o$ another immovable
or persons on ones property.
%83 9n La >ista vs. ;A, the easement o$ right o$ way was not a legal
easement but was created because o$ a contract. /ince it was created by a
contract, the re.uisites $or a right o$ way under 'rts. 3%: and 300 need not be
$ollowed.
#IFFERENT $"#ES "F AC?(IRING "NERSHIP
%85 Eode is the speci$ic cause which gives rise to ownership, as the result o$ the
presence o$ a special condition o$ things, o$ the aptitude and intent o$ persons, and o$
compliance with the conditions established by law.
%88 Title is that which gives *uridical *usti$ication $or a mode because it produces the
cause $or the ac.uisition o$ ownership.
%8: Eodes arise $rom title.
%:0 9n a contract o$ sale, the ownership is trans$erred not because o$ the contract o$
sale but by tradition =delivery>.
%:1 The modern trend however is to do away with the distinction between mode and
title.
,. 8 T"pes of <odes
1. ,ri/inal 0o+e
%: 9n an original mode, ownership is not ac.uired $rom an immediately
preceding owner. 9t does not however mean that the ob*ect was not owned
be$ore. For e(ample, i$ someone catches $ish, it does not necessarily mean
that person was the $irst one to catch it =occupation>.
%:! 9ntellectual creation, occupation
. Deri(ati(e 0o+e
%:% 9n a derivative mode, ownership is based on a right previously held
by another person.
%:0 ;aw, tradition, donation, succession
!. 0ixe+ 0o+e
%:3 ' !
rd
mode was created since prescription could not be classi$ied as
original or derivative.
%:5 Drescription
,,. <odes of Ac.uiring #wnership
A. 3ntellectual creation
%:8 9ntellectual creation is now governed by the 9ntellectual Droperty
Code and the T-9D/ 'greement.
G. ,ccupation
499 For occupation to occur, the ob*ect must be appropriable by nature
='rticle 51!
C
>.
000 2ccupation regarding animals happens by hunting or $ishing. The
ac.uisition o$ animals can be regulated by law =i.e. dynamite $ishing>.
001 The ownership o$ a piece o$ land cannot be ac.uired by occupation
='rticle 51%>. This is based on the -egalian +octrine. "nder the -egalian
*
Art. 1)(. Things appropriable by nature which are without an owner, such as animals that are
the ob*ect o$ hunting and $ishing, hidden treasure and abandoned movables, are ac.uired by
occupation.
Professor Ruben F. Balane Pa)e .+, of +,-
doctrine, one cannot ac.uire land unless it was granted by the /tate or by its
prior owner.
00 "nder the -egalian +octrine, there is no such thing as land which is
res nullius.
00! 9$ the state grants the land to T. T abandons the land. #hat
happens to the land) There is no speci$ic provision. Daras thin,s that the land
goes bac, to the state.
504 "nder 'rticle 513
, the periods o$ =$or bees> and 0 days =$or

domesticated animals> are not periods o$ prescription. -ather, these days are
conditions $or the ac.uisition by occupation
505 There is a di$$erence between domesticated animals and domestic
animals. +omesticated animals are by nature wild animals but have been
tamed ? possess the habit o$ returning to the premises o$ the possessor
='rticle 030
>. 2n the other hand, a domestic animal is treated li,e any other
personal property. 9t cannot be ac.uired by the occupation since it is owned
unless the owner abandons the animal.
506 +omestic animals are governed by 'rticle 00:
.
507 'rticle 51:
provides the procedure when one $inds a lost movable

which is not a treasure.
C. :a;
008 Dro(imately, law is 1 o$ the 5 modes o$ ac.uiring ownership.
00: "ltimately, law is the only source o$ ownership.
_
Art. 1)&. The owner o$ a swarm o$ bees shall have a right to pursue them to anotherGs land,
indemni$ying the possessor o$ the latter $or the damage. 9$ the owner has not pursued the swarm,
or ceases to do so within two consecutive days, the possessor o$ the land may occupy or retain the
same. The owner o$ domesticated animals may also claim them within twenty days to be counted
$rom their occupation by another person. This period having e(pired, they shall pertain to him who
has caught and ,ept them.
_
Art. $&0. #ild animals are possessed only while they are under oneGs control& domesticated
or tamed animals are considered domestic or tame i$ they retain the habit o$ returning to the
premises o$ the possessor.
_
Art. $$2. The possession o$ movable property ac.uired in good $aith is e.uivalent to a title.
Nevertheless, one who has lost any movable or has been unlaw$ully deprived thereo$ may recover
it $rom the person in possession o$ the same.
9$ the possessor o$ a movable lost or which the owner has been unlaw$ully deprived, has
ac.uired it in good $aith at a public sale, the owner cannot obtain its return without reimbursing the
price paid there$or.
_
Art. 1)2. #hoever $inds a movable, which is not treasure, must return it to its previous
possessor. 9$ the latter is un,nown, the $inder shall immediately deposit it with the mayor o$ the
city or municipality where the $inding has ta,en place.
The $inding shall be publicly announced by the mayor $or two consecutive wee,s in the way
he deems best.
9$ the movable cannot be ,ept without deterioration, or without e(penses which
considerably diminish its value, it shall be sold at public auction eight days a$ter the publication.
/i( months $rom the publication having elapsed without the owner having appeared, the thing
$ound, or its value, shall be awarded to the $inder. The $inder and the owner shall be obliged, as
the case may be, to reimburse the e(penses.
Professor Ruben F. Balane Pa)e .+- of +,-
510 The provisions regarding law as a mode o$ ac.uiring ownership is
scattered throughout the Civil Code =i.e. 'rticles 381, 1%!%, 1%03
>.
D. 7ra+ition ='rticles 1%:341001>
Art. 1496. The ownership of the thing sold is ac.uired b" the
vendee from the moment it is delivered to him in an" of the wa"s
specified in articles '=EC to ')4'% or in an" other manner signif"ing an
agreement that the possession is transferred from the vendor to the
vendee.
Art. 1497. The thing sold shall be understood as delivered% when it
is placed in the control and possession of the vendee.
Art. 1498. 0hen the sale is made through a public instrument% the
e-ecution thereof shall be e.uivalent to the deliver" of the thing which is
the object of the contract% if from the deed the contrar" does not appear
or cannot clearl" be inferred.
0ith regard to movable propert"% its deliver" ma" also be made b"
the deliver" of the ke"s of the place or depositor" where it is stored or
kept.
Art. 1499. The deliver" of movable propert" ma" likewise be made
b" the mere consent or agreement of the contracting parties% if the thing
sold cannot be transferred to the possession of the vendee at the time of
the sale% or if the latter alread" had it in his possession for an" other
reason.
Art. 1500. There ma" also be tradition constitutu possessoriu.
Art. 1501. 0ith respect to incorporeal propert"% the provisions of
the first paragraph of article '=ED shall govern. ,n an" other case
wherein said provisions are not applicable% the placing of the titles of
ownership in the possession of the vendee or the use b" the vendee of his
rights% with the vendor;s consent% shall be understood as a deliver".
011 Tradition comes $rom the latin word tradere which means to deliver.
01 Tradition is a mode o$ ac.uiring ownership as a conse.uence o$
certain contracts such as sale by virtue o$ which, actually or constructively, the
ob*ect is placed in the control and possession o$ the trans$eree.
Art. &/). Fruits naturally $alling upon ad*acent land belong to the owner o$ said land.
Art. )*(*. #hen a person who is not the owner o$ a thing sells or alienates and delivers it,
and later the seller or grantor ac.uires title thereto, such title passes by operation o$ law to the
buyer or grantee.
Art. )*$&. 9$ property is ac.uired through mista,e or $raud, the person obtaining it is, by
$orce o$ law, considered a trustee o$ an implied trust $or the bene$it o$ the person $rom whom the
property comes.
01! Iinds o$ Tradition
1. *eal or material ? physical delivery ='rticle 1%:5>
. )in/i+a ? constructive
a. 5i'olica ='rticle 1%:8>
01% -e.uisites
i. Trans$eror must have control o$ the thing
010 The trans$eror must have actual possession
ii. Trans$eree must be put in control
iii. There must be intent to trans$er
013 9n Aviles vs. Arcega, a very controversial decision, the
'lcantara sold the house to 'viles as evidenced by a document
ac,nowledged be$ore a notary public. The document stated that
'lcantara would continue to possess the house $or % months. 'viles
never too, possession o$ the property even a$ter the lapse o$ %
months. 'lcantara sold the house to 'rcega. The /C said that
'viles cannot invo,e symbolic delivery as this was prevented by
e(press stipulation ? that 'lcantara would continue in possession.
The $act that % months had lapsed does not mean that there was
symbolic delivery since there is no law providing that is should ta,e
place a$ter the e(ecution o$ the document where there is stipulation
to the contrary.
015 This case is controversial since those who dissented are the
% civil law e(perts.
018 7raditio clarium is part o$ tradicion sim5olica. 7raditio
clarium is applicable only to personal property =i.e. ,eys>. 9n @anco
Filipino vs. Deterson, the goods in the warehouse were delivered
when the ,eys to the warehouse were given.
b. :on/a anu ='rticles 1%:3 and 1%::, 1
st
part>
01: Longa manu means long hand. ;iterally this means hat the
trans$er o$ ownership is done by pointing out. For e(ample, the
ownership o$ the car is trans$erred by pointing to the speci$ic car.
00 9n longa manu, mere agreement is not enough. There must
be an accompanying sign or gesture ='rticle 1%::>.
c. =re(i anu ='rticle 1%::>
01 -revi manu means short hand.
0 -revi manu occurs when the trans$eree was already in
possession be$ore he had ac.uired ownership. For e(ample, the
lessee is renting the house. The lessor sells the house to the
lessee.
d. *onstitutu possessoriu ='rticle 1000>
0! ;onstitutum possessorium is the opposite o$
5revi manu. 9n this case, the trans$eror already in possession and
continues to be in possession under a di$$erent capacity a$ter
ownership had been trans$erred.
Professor Ruben F. Balane Pa)e ./4 of +,-
0% For e(ample, ' owns a house. ' sells the
house to @. ' then leases the house to @.
!. Nuasi/tradition =cuasi tradicion>
00 Quasi4tradition re$ers to the delivery o$ incorporeal property.
03 For e(ample, shares o$ stoc, cannot be physically
trans$erred. #hat is delivered are the stoc, certi$icates. The
endorsement o$ the stoc, certi$icate is delivery by .uasi4tradition.
05 Aowever, in 7a5lante vs. A=uino, the /C applied .uasi4
tradition to tangible property. 'ccording to Dro$essor @alane, this is
wrong. 9t should be tradicion sim5olica.
%. G" operation of law =por ministerio de la le8>
08 /uccession should not be included here since succession is
an independent mode o$ ac.uiring ownership. 9t is not part o$
tradition.
:. Donation
0: +onation is an act o$ liberality whereby a person disposes
gratuitously o$ a thing or right in $avor o$ another, who accepts it ='rticle 50>.
0!0 'ccording to Dro$essor @alane, the de$inition o$ a donation in 'rticle
50 is wrong. ' donation is not an act. 9t is a contract.
1. Aeatures of donation
a. -eduction o$ the donors patrimony
b. 1nhancement or increase o$ the donees patrimony
c. Animus donandi 44 intent to do an act o$ liberality
. Classification of donations
a. 3nter (i(os ? the e$$ectivity o$ the donation does not depend upon the
donors death
i. Pure or simple ='rticle 50
>
0!1 6ratuitous
ii. Remunerator8 ='rticle 53
>
0! The donation is made on account o$ the donees merits.
0!! For e(ample, a parcel o$ land is given to ; since ; is the
most outstanding student in law or out o$ gratitude $or saving
another persons li$e.
iii. ;onditional or modal ='rticles 53, 5!!
>
`
Art. 1%$. +onation is an act o$ liberality whereby a person disposes gratuitously o$ a thing or
right in $avor o$ another, who accepts it.
`
Art. 1%&. #hen a person gives to another a thing or right on account o$ the latterGs merits or o$
the services rendered by him to the donor, provided they do not constitute a demandable debt, or
when the gi$t imposes upon the donee a burden which is less than the value o$ the thing given,
there is also a donation.
Art. 1((. +onations with an onerous cause shall be governed by the rules on contracts and
remuneratory donations by the provisions o$ the present Title as regards that portion which
e(ceeds the value o$ the burden imposed.
Professor Ruben F. Balane Pa)e ./* of +,-
0!% ' conditional or modal donation imposes upon the donee a
burden which is less than the value o$ the thing donated.
0!0 For e(ample, T donates land worth D0,000,000. Aowever,
T must support the donors mother ? D,000,000. The value o$ the
donation is D18,000,000.
0!3 The more accurate term is not conditional but modal.
0!5 Eodal donations are not pure acts o$ liberality since a mode
is imposed.
0!8 'rticle 5!! is inaccurate. 'rticle 5!! mentions remuneratory
donations. This should be replaced by the word OmodalP.
iv. .nerous ='rticle 5!!>
0!: This is a donation in name only.
0%0 'n onerous donation is a contradiction in terms.
b. 0ortis causa 4 the e$$ectivity o$ the donation depends upon the donors
death
0%1 The provisions on donation mortis causa are
dead letter because donations mortis causa are governed by the
provisions o$ testamentary succession which is another mode o$
ac.uiring ownership.
0% ' donates to @ a parcel o$ land on the
condition that @ passes the @ar o$ 001. 2n the eve o$ the bar e(am, '
dies. @ passes the bar months a$ter the death o$ '. This is a donation
inter vivos since the cause $or the donation is passing the bar. The test
to determine whether or not it is inter vivos or mortis causa is the
causal connection.
!. Aorm re.uired
0%! Form determines the validity o$ the donation. +onations are one o$
the $ew transactions le$t in which $orm determines validity. Eost
transactions are consensual, the intent determining validity.
a. 0o(a'les ='rticle 5%8>
Art. 748. The donation of a movable ma" be made orall" or in
writing.
An oral donation re.uires the simultaneous deliver" of the
thing or of the document representing the right donated.
,f the value of the personal propert" donated e-ceeds five
thousand pesos% the donation and the acceptance shall be made in
writing% otherwise% the donation shall be void.
0%% 9$ the donation is worth D0,000 or less, the donation can be
made orally. Aowever, the oral donation must be accompanied by the
simultaneous delivery o$ the movable or o$ the document representing
the right donated. #ithout delivery, the donation is no good.
0%0 9$ the value o$ the donation e(ceeds D0,000, the donation
and the acceptance must be in writing.
Professor Ruben F. Balane Pa)e ./. of +,-
0%3 The writing may be in a public or in a private instrument.
b. 3o(a'les ='rticle 5%:>
Art. 749. ,n order that the donation of an immovable ma" be
valid% it must be made in a public document% specif"ing therein the
propert" donated and the value of the charges which the donee
must satisf".
The acceptance ma" be made in the same deed of donation
or in a separate public document% but it shall not take effect unless
it is done during the lifetime of the donor.
,f the acceptance is made in a separate instrument% the
donor shall be notified thereof in an authentic form% and this step
shall be noted in both instruments.
0%5 The donation must be in a public instrument.
0%8 The acceptance must either be in the same public instrument
or in a di$$erent public instrument.
0%: 'cceptance shall not ta,e e$$ect unless it is done during the
li$etime o$ the donor.
000 9$ the acceptance is made in a separate public instrument,
the donor shall be noti$ied thereo$ in an authentic $orm, and this step
shall be noted in both instruments.
%. Distinction between inter (i(os and ortis causa
001 ' donation mortis causa is always revocable. Thus, i$ the donation
is designated as irrevocable or is revocable only $or certain grounds or
causes, then the donation is inter vivos.
00 9n a donation inter vivos, the property passes $rom the donor to the
donee =ownership>. 9$ the donor reserves the right o$ ownership, then the
donation is mortis causa.
00! ' stipulation giving the donor the power to alienate the
property i$ the donor needs money ? donation inter vivos. 9n this case,
the right to alienate is limited.
,.7E: The reservation must pertain to a reservation o$ the ownership and
N2T the $ruits.
00% 9$ the donor reserves the power to alienate, then the donor reserves
the right o$ ownership. 9t is a donation mortis causa. 9$ the donor reserves
the right to alienate only $or certain grounds and causes, then it means
that the donor has practically lost the right to alienate it. #hich means,
the donor has practically lost his right o$ ownership. This is a donation
inter vivos.
000 ' stipulation stating that the donee cannot alienate without the
donors consent ? donation mortis causa. 9n this case, the donor
e$$ectively has the power to alienate. The donee will always needs the
consent o$ the donor.
Professor Ruben F. Balane Pa)e ./+ of +,-
0. !imitations
a. 9"o a! Donate
003 ' donor must have capacity to act =i.e. age o$ ma*ority, no
civil interdiction or other incapacity, etc.> ? 'rticle 5!0.
Art. 735. All persons who ma" contract and dispose of
their propert" ma" make a donation.
005 The donor must have capacity at the time the donation is
made.
008 The donation is per$ected $rom the moment the donor ,nows
o$ the acceptance by the donee ='rticle 5!%> ? cognition theory
Art. 734. The donation is perfected from the moment the
donor knows of the acceptance b" the donee.
00: "nder the cognition theory, the contract is per$ected upon
the donors learning o$ the donees acceptance. 9t is not per$ected
when the donee simply mani$ests his acceptance ? the mani$estation
theory. Inowledge by the donor is crucial.
030 9n order $or the donation to be per$ected, the donor must
have ,nowledge o$ the donees acceptance. Thus, the donor must be
alive and must have capacity at the time he learns o$ the donees
acceptance.
b. 9"o a! 'e a Donee
031 'll those who are not speci$ically dis.uali$ied by law may
accept donations ='rticle 5!8>.
c. @oi+ Donations
03 The $ollowing are void donations<
i. 7#ose made 5et4een persons 4#o 4ere guilt8 o! adulter8 or
concu5inage at t#e time o! t#e donation ='rticle 5!: =1>>
03! Conviction is not necessary.
03% The donation shall not be void i$ the donee did not
,now o$ the donors e(isting marriage.
ii. 7#ose made 5et4een persons !ound guilt8 o! t#e same criminal
o!!ense in consideration t#ereo! ='rticle 5!: =>>
030 'ggravating circumstance o$ price, promise or reward
iii. 7#ose made to a pu5lic o!!icer or #is 4i!e descendants and
ascendants 58 reason o! #is o!!ice ='rticle 5!: =!>>
iv. Donations made 58 guardians and trustees o! propert8 entrusted to
t#em ='rticle 5!3>
033 9n Araneta vs. Perez, the owner o$ the land had a
trustee. The land was being developed into a subdivision. The
trustee donated with the courts consent to the ;6" a portion o$
the land to be used as a street. The donation to the ;6" was
Professor Ruben F. Balane Pa)e .// of +,-
being challenged on the basis o$ 'rticle 5!3. The /C said that
'rticle 5!3 contemplates donations which are pure. 9n this
case, the donation to the ;6" was not a pure donation. The
donation was necessary to develop the subdivision.
d. The donation should not be ino$$icious
e. The donation should not pre*udice creditors
$. The donation should not impair support $or the donor and his $amily
g. +onations cannot comprehend $uture property ='rticle 501>
Art. 751. Donations cannot comprehend future propert".
G" future propert" is understood an"thing which the donor
cannot dispose of at the time of the donation.
3. *eduction and revocation
a. 7"e +onation s"oul+ not 'e ino..icious ='rticle 50>
Art. 752. The provisions of article C)4 notwithstanding% no
person ma" give or receive% b" wa" of donation% more than he ma"
give or receive b" will.
The donation shall be inofficious in all that it ma" e-ceed
this limitation.
035 ' donation is ino$$icious i$ it impairs the legitime.
038 'n ino$$icious donation will be reduced in so $ar as it e(ceeds
what the donor could have given by will to the donee ? the $ree
portion. #hether a donation is ino$$icious or not can only be
determined at the time o$ the death o$ the donor.
03: The heirs o$ the donor have 10 years $rom the death o$ the
donor to revo,e or reduce the donation (Imperial vs. ;A).
050 9$ there is a subse.uent appearance or birth o$ a child and
his legitime is impaired because o$ a donation, the donation may be
revo,ed or reduced to the e(tent that his legitime is pre*udiced
='rticles 530 and 531>.
Art. 760. :ver" donation inter (i(os% made b" a person
having no children or descendants% legitimate or legitimated b"
subse.uent marriage% or illegitimate% ma" be revoked or
reduced as provided in the ne-t article% b" the happening of an"
of these events+
5'7 ,f the donor% after the donation% should have legitimate
or legitimated or illegitimate children% even though the"
be posthumous3
567 ,f the child of the donor% whom the latter believed to be
dead when he made the donation% should turn out to be
living3
587 ,f the donor subse.uentl" adopt a minor child.
Art. 761. ,n the cases referred to in the preceding article%
the donation shall be revoked or reduced insofar as it e-ceeds
the portion that ma" be freel" disposed of b" will% taking into
account the whole estate of the donor at the time of the birth%
appearance or adoption of a child.
051 9n the case o$ the subse.uent appearance or birth o$ a child,
the action to revo,e or reduce the donation shall prescribe a$ter % years
$rom the birth o$ the child, or $rom his legitimation, recognition or
adoption or $rom the *udicial decree o$ $iliation, or $rom the time the
in$ormation was received regarding the e(istence o$ the child believed
dead. This action cannot be renounced, and is transmitted upon the
death o$ the donor, to his legitimate and illegitimate children and
descendants ='rticle 53!>.
b. 7"e +onation s"oul+ not pre6u+ice cre+itors ='rticle 50:>
Art. 759. There being no stipulation regarding the pa"ment
of debts% the donee shall be responsible therefor onl" when the
donation has been made in fraud of creditors.
The donation is alwa"s presumed to be in fraud of creditors%
when at the time thereof the donor did not reserve sufficient
propert" to pa" his debts prior to the donation.
572 9$ the donor does not have enough properties reserved to
pay o$$ his creditors, the creditors have % years $rom the ,nowledge o$
the donation to rescind the donation ? accion pauliana ='rticles 1!81
=!>, 1!85 and 1!8:
>
c. 7"e +onation ust not ipair t"e support .or t"e +onor or "is
relati(es ='rticle 500>
Art. 750. The donations ma" comprehend all the present
propert" of the donor% or part thereof% provided he reserves% in full
ownership or in usufruct% sufficient means for the support of
himself% and of all relatives who% at the time of the acceptance of
the donation% are b" law entitled to be supported b" the donor.
0ithout such reservation% the donation shall be reduced in petition
of an" person affected.
Art. )(/). The $ollowing contracts are rescissible<

=!> Those underta,en in $raud o$ creditors when the latter cannot in any other manner collect
the claims due them&
Art. )(/1. 'll contracts by virtue o$ which the debtor alienates property by gratuitous title
are presumed to have been entered into in $raud o$ creditors, when the donor did not reserve
su$$icient property to pay all debts contracted be$ore the donation.
'lienations by onerous title are also presumed $raudulent when made by persons against
whom some *udgment has been issued. The decision or attachment need not re$er to the property
alienated, and need not have been obtained by the party see,ing the rescission.
Art. )(/2. The action to claim rescission must be commenced within $our years.
For persons under guardianship and $or absentees, the period o$ $our years shall not begin
until the termination o$ the $ormerGs incapacity, or until the domicile o$ the latter is ,nown.
05! 9$ the donor does not reserve enough property $or his and
his $amilys support, the donation can be reduced.
05% The donation can be reduced as much as may be necessary.
050 9n e(treme cases, the donation can be revo,ed i$ the donor
gave away so much, and the donor and his $amily need everything
bac,.
d. Donations ust copl! ;it" t"e con+itions o. t"e +onation ='rticle
53%>
Art. 764. The donation shall be revoked at the instance of
the donor% when the donee fails to compl" with an" of the
conditions which the former imposed upon the latter.
,n this case% the propert" donated shall be returned to the
donor% the alienations made b" the donee and the mortgages
imposed thereon b" him being void% with the limitations
established% with regard to third persons% b" the <ortgage !aw and
the !and *egistration laws.
This action shall prescribe after four "ears from the
noncompliance with the condition% ma" be transmitted to the heirs
of the donor% and ma" be e-ercised against the donee;s heirs.
053 For $ailure to comply with the conditions o$ the donation, the
donor or his heirs have % years $rom noncompliance to revo,e the
donations.
055 The right o$ revocation may be e(ercised against the donees
heirs.
058 -evocation is the only available remedy in this situation.
-eduction is not applicable.
e. 7"e +onee ust not act ;it" in/ratitu+e ='rticle 530>
05: The $ollowing are acts o$ ingratitude
a. 9$ the donee should commit some o$$ense against the person, the
honor or the property o$ the donor, or o$ his wi$e or children under
his parental authority
b. 9$ the donee imputes to the donor any criminal o$$ense, or any act
involving moral turpitude, even though he should prove it, unless
the crime or the act has been committed against the donee himsel$,
his wi$e or children under his authority
c. 9$ he unduly re$uses him support when the donee is legally or
morally bound to give support to the donor
080 The re$usal by the donee must be un*usti$iable.
081 The $act that these acts were committed will not give rise to
the revocation. The donor must invo,e these grounds.
08 The donor has 1 year $rom the time the donor ac.uires
,nowledge o$ the donees act o$ ingratitude to revo,e ='rticle 53:>.
Professor Ruben F. Balane Pa)e ./, of +,-
Art. 769. The action granted to the donor b" reason of
ingratitude cannot be renounced in advance. This action
prescribes within one "ear% to be counted from the time the
donor had knowledge of the fact and it was possible for him to
bring the action.
A. 5uccession
G. &rescription
,,,. <odes of :-tinguishing #wnership
A. @oluntar! 0o+es
1. Abandonment
08! -ights such as ownership may be waived.
08% "nder 'rticle 3, the waiver o$ ownership need not $ollow any
$ormalities.
Art. 6. *ights ma" be waived% unless the waiver is contrar"
to law% public order% public polic"% morals% or good customs% or
prejudicial to a third person with a right recogni$ed b" law.
. Alienation
a. .nerous title =i.e. sale>
b. :ratuitous title
i. Inter vivos
ii. 9ortis causa
!. >oluntar" destruction =i.e. burning o$ trash>
G. 3n(oluntar! 0o+es
1. Aortuitous loss or destruction =i.e. $ire>
. Accession continua =i.e. bad $aith in commi(tion or con$usion>
!. *escissor" actions
%. 1udicial decree
080 Dro$essor @alane does not thin, that *udicial decree should be
enumerated as an involuntary mode since the *udicial decree would be
based on something else.
0. G" operation of law =i.e. con$iscate due to police power>
"bli)ations an& Contracts
,ntroduction
2ur Civil Code $ollows the 6aian order which is o$ three parts< Dersons, Things
and 2bligations.
The title o$ @oo, 9V o$ the Civil Code is inaccurate. #hile the title is O2bligations
and ContractsP, it should only be O2bligationsP since by including OContractsP in the title,
Professor Ruben F. Balane Pa)e ./- of +,-
it is putting the latter on e.ual $ooting with the $ormer& but this is not correct since
contracts is only one o$ the sources o$ obligations.
2bligations is the most important, most abstract and most di$$icult o$ all o$ civil
law. 9t is the entirety o$ private law. 9$ you dont ,now obligations and contracts, you
will never understand commercial law.
The term OobligationsP was derived $rom the words OobP and OligareP which means
Oto bind or tie togetherP. O;igareP is the source o$ several common words such as
OligamentP and OligationP. =;igation and Vasectomy have the same purpose< to tie and to
cut o$$, the $allopian tube, $or the $ormer, and the vas de$erens, $or the latter.>
O2bligatioP was initially a physical act o$ being chained =with shac,les>. @e$ore,
under -oman law, i$ the debtor cannot pay, the creditor can bring him to the magistrate
and the magistrate can authori7e the creditor to cu$$ the debtor and o$$er him $or sale $or
! days, the proceeds o$ which go to the creditor. The debtor then becomes a slave. 9$
he is not bought, the creditor can have him chopped into little pieces or have him sold to
the barbarians.
's time passed, cruelty so$tened. @y the time o$ Cicero, OligatioP does not mean
vinculum o$ chains but vinculum "uris =bond o$ law>. 2bligation became metaphorical
and not literal.
,. #bligations
A. De.inition o. ,'li/ation
Art. 1156. An obligation is a juridical necessit" to give% to do or not to do.
083 This provision is the soul o$ brevity. 9t was borrowed $rom /anche7
-oman. Aowever, many commentators say it is incomplete because the
OobligationP is only $rom the point o$ view o$ the debtor. To ma,e it complete,
it must cover the points o$ view o$ both the debtor and creditor. 2bligations
are bilateral. 9t should include what can be re.uired, the remedy and the
means by which the creditor can ta,e to pursue the remedy.
085 'n obligation is a *uridical relation whereby a person should engage
or re$rain $rom engaging in a certain activity $or the satis$action o$ the private
interest o$ another who, in the case o$ non4$ul$illment o$ such duty, may obtain
$rom the patrimony o$ the $ormer through proper *udicial proceedings the very
prestation due or in de$ault thereo$, the economic e.uivalent that it represents
=+ia7 Diero>.
088 'n obligation is a *uridical relation whereby a person =called a
creditor> may demand $rom another =called the debtor> the observance o$ a
determinate conduct, and, in case o$ breach, may obtain satis$action $rom the
assets o$ the latter ='rias -amos>.
G. *"aracteristics o. ,'li/ations
0 9t represents an e(clusively private interest
1 9t creates ties which are by nature transitory
08: @ecause obligations are e(tinguished. @ut the period is relative ?
could be seconds =e.g. buying co,e> and could be years =e.g. partnership,
lease>
9t involves the power to ma,e the *uridical tie de$ective in case o$ non4$ul$illment
through satis$action o$ the debtors property
C. 7ren+s in t"e 0o+ern :a; o. ,'li/ations
4 Progressive spirituali$ation of the law on obligations
0:0 @e$ore, obligations were very $ormal and ritualistic. 9$ it was not in
the proper $orm, no obligations will assume. Now, the emphasis is in the
meeting o$ the minds, and not on the speci$ic $orm. There is even no need
that it be in writing, as a General *ule, since consensuality is the
prevailing doctrine. 's long as it can be mani$est ? and any ,ind o$
mani$estation will do ? it is su$$icient.
0:1 -oman ;aw was $ormalistic. Vestiges o$ -oman ;aw in the Civil
Code can be seen in the law governing donations, which is very $ormal.
1ven $or sales, the re.uirement o$ $orm is only $or en$orceability and not
$or validity. This is to ma,e it conducive to business and $acilitate
commercial transactions.
0: This is still an ongoing trend< e4commerce added another option in
$orm and proo$ o$ contracts =but this is not applicable to all, usually only
$or business, not applicable to wills>.
' The principle of autonom" of will of the parties is now subject to several
restrictions
0:! #hile the principle still operates, the e(ceptions =prohibited areas>
have grown larger and larger.
594 'rticle 1!03 gives the $ive restrictions< not contrary to law, morals,
good customs, public order, or public policy. Those which are against
these $ive restrictions are void, as can be seen in 'rticle 1%0:
C
. Aowever,
now we have restrictions such as social *ustice, environmental
preservation, etc. This is because o$ the rising tide o$ social discontent,
hence social legislation came to be $or the underprivileged.
6 The mitigation of the principle that the debtor should answer with all his
propert"
0:0 @e$ore, the debtor had to answer his debts with all his property.
Now, certain properties are e(empt and these can be $ound in substantive
law =i.e. home> and in procedural law =i.e. support, etc.>
0:3 'lso, the debtor may not be imprisoned $or non4payment o$ debts.
0:5 The theory is to leave the debtor something to live decently by.
8 The weakening of the principle that liabilit" arises from responsibilit"
0:8 This is basically the principle in .uasi4delicts. Now, in many cases,
a person may be held liable even i$ not responsible.
0:: For e(ample, under wor,mans compensation, the employer is liable
to compensate the employee even i$ the employer was not negligent.
= The tendenc" of unit" in modern legislation
*
Art. )*02. The $ollowing contracts are ine(istent and void $rom the beginning<
=1> Those whose cause, ob*ect or purpose is contrary to law, morals, good customs, public
order or public policy&
300 This can be mani$est in the rise o$ a Oglobal villageP. This can be
seen particularly in trade laws.
301 The tendency now is to ma,e things uni$orm especially in
commerce. +i$$erent rules would impede commerce.
D. Essential Re>uisites o. ,'li/ations
4 Active subject
30 The active sub*ect is called a creditor i$ the obligation is to give.
The active sub*ect is called an obligee i$ the obligation is to do.
30! The active sub*ect is always a person whether *uridical or natural.
. Passive subject
30% The passive sub*ect is called a debtor i$ the obligation is to give.
The passive sub*ect is called an obligor i$ the obligation is to do.
300 The passive sub*ect must be determinate or determinable
303 Aow can both sub*ects be determinate or determinable)
a. 2bligations where the sub*ects are completely and absolutely determined
at the birth o$ an obligation.
305 9$ ' and @ are parties to a contract o$ sale and @ doesnt
comply. ' cannot sue C.
1 2bligations where one sub*ect is determined at the moment o$ the
birth o$ the obligation and the other sub*ect is to be determined
subse.uently at some $i(ed criterion, which criterion is $i(ed at the start o$
the obligation.
308 @ ma,es a promissory note payable to E or order. 9n this
case, the creditor is not necessarily E. The creditor is either E or to
whomever the promissory note is endorsed.
30: 't the time o$ the birth o$ the obligation, the payee is not yet
,nown but the obligation is valid.
2bligations in which sub*ects are determined in accordance with its
relation to a thing.
310 The real rights
311 ' mortgaged property to T pursuant to a loan. The
mortgage attaches to the property. 9$ ' sells the property to @, the
annotation in the TCT will $ollow and @ becomes the mortgagor. 9$ '
doesnt pay, T goes against @.
31 The obligor in this case is whoever owns the land. T doesnt
care whether its ' or @.
!. #bject of the obligation
31! The ob*ect o$ the obligation always consists in an activity or conduct
to be observed by the debtor towards the creditor. This conduct to be
observed is also ,nown as the prestation.
31% 9n a contract o$ sale $or e(ample, the ob*ect o$ the obligation is the
conduct o$ the vendor in delivering the car. The car, on the other hand, is
the ob*ect o$ the prestation.
310 /ometimes, the commentators con$use the car as the ob*ect o$ the
obligation, but this is wrong. The ob*ect is not the car but the prestation.
313 'ccording to Dro$essor @alane, the distinction between the ob*ect o$
the obligation and the ob*ect o$ the prestation has been blurred by 'rticles
1!%541!%:.
315 -e.uisites o$ the 2b*ect o$ the 2bligation
0 ;icit =;egal>
318 Example: Cant validly enter into a contract $or se(ual
services
1 Dossible both in $act and in law
31: +etermined by the rules o$ e(perience
+eterminate or determinable
30 Cant say that O9 promise to sell you somethingP.
31 Example o! determinate: 9 promise to sell you my car.
3 Example o! determina5le: 9 promise to sell you my riceland
in @icol in November =will become determinate when time comes>.
! Eust have pecuniary value
%. @inculu 6uris
3! The vinculum "uris is the legal tie. 9t consists o$ the en$orceability
o$ the obligation. 9$ the debtor does not con$orm, the creditor has the
power to go to court to ma,e the debtor per$orm ? coercive.
3% #hat ma,es an obligation is the power o$ the creditor to haul the
debtor be$ore the court, summoning powers o$ the state i$ needed.
30 Voluntariness goes into entering into an obligation. @ut once you
enter, it becomes involuntary.
0. *ausa
33 Castan adds a 0
th
essential re.uisite ? causa. 'lso ,nown as causa
de5endi or causa o5ligationes. ;ausa means the why o$ an obligation.
35 The ob*ect o$ an obligation answers the .uestion O#hat is owed)P
=Quid>. The causa answers the .uestion O#hy is it owed)P =Cur>.
38 For e(ample, ' will deliver a car to @ since ' e(pects to get
D!00,000. The D!00,000 is the causa o$ the obligation.
obligation
prestation
car
=ob*ect o$ the obligation> deliver the car
=ob*ect o$ the prestation>
3. Aorm
3: 'nother commentators say that the 3
th
essential re.uisite is $orm.
Form means some mani$estation o$ intent. 9n some cases the
mani$estation is speci$ic such as in the case o$ donations.
3!0 'ccording to Dro$essor @alane that the general rule is that there is
no speci$ic $orm $or a valid obligation. Aowever, i$ $orm means that there
is some e(ternal mani$estation, $ine, since we are not telepathic a$ter all.
Aowever, there should still be no speci$ic $orm.
:. 5ources o. ,'li/ations ='rticle 1105>
Art. 1157. #bligations arise from+
5'7 !aw3
567 Contracts3
587 Nuasi/contracts3
5=7 Acts or omissions punished b" law3 and
5)7 Nuasi/delicts.
3!1 There is really only one source o$ obligations ? *ust law. #ithout
the law saying that a particular contract is en$orceable, the contract will not
give rise to an obligation. Aowever, OsourceP can be understood in both the
ultimate and immediate sense. 9n the ultimate sense, law is the solitary
source. 9n the immediate sense, there are 0, those enumerated in 'rticle
1105. ;aw is there$ore both an immediate and ultimate source. 1(amples o$
law being an immediate source are payment o$ ta(es and accession.
3! 9s this enumeration o$ the sources o$ obligation e(clusive) The
/upreme Court in the case o$ +agrada .rden vs. ,A;.;. seem to answer it in
the a$$irmative. Aowever, this is only by implication or indication. The Court
did not ma,e an e(plicit statement that it is.
3!! Eany commentators including Dro$essor @alane believe that the list
is not e(clusive. They critici7e the case because it is not a good way o$
enumerating. 't present, there is one more possible source o$ obligations ?
public o$$er.
3!% Example: 9n commercials, there is an o$$er to replace !0 sachets o$
Tide $or one Venetian4cut glass until the end o$ the year. There is no contract
or .uasi4contract. @ut i$ be$ore the end o$ the year, you present your Tide
sachets, you can demand $or your glass. Dublic o$$er is in $act a source o$
obligation under the @6@ =the 6erman Civil Code>, 'rticle 305 which provides
that a person who by public notice announces a reward in the per$ormance o$
the act is liable even i$ such person did not act in view o$ such reward.
3!0 'lthough public o$$icers are supplemented by +T9 regulations,
Dro$essor @alane thin,s that public o$$er should be made part o$ the law since
regulations easily change.
0 !aw ='rticle 1108>
Art. 1158. #bligations derived from law are not presumed. #nl"
those e-pressl" determined in this Code or in special laws are
demandable% and shall be regulated b" the precepts of the law which
establishes them3 and as to what has not been foreseen% b" the
provisions of this Gook.
3!3 There is only 1 ultimate source o$ obligations ? law. Aowever, there
are 0 pro(imate sources o$ obligations ='rticle 1105>.
1 Contract ='rticle 110:>
Art. 1159. #bligations arising from contracts have the force of
law between the contracting parties and should be complied with in
good faith.
3!5 Contract is only 1 o$ the sources o$ obligations.
3!8 This provision combines two concepts o$ -oman law ? e.uity or
good $aith (ius gentium) and strict compliance by the parties (ius c#inile).
3!: ' contract is a meeting o$ minds between persons whereby one
binds himsel$, with respect to the other, to give something or to render
some service ='rticle 1!00>
3%0 Contractual obligations have the $orce o$ law between the
contracting parties and should be complied with in good $aith ='rticle
110:>.
3%1 The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order, or public policy
='rticle 1!03>.
3% Contracts are per$ected by mere consent, and $rom that moment
the parties are bound not only to the $ul$illment o$ what has been e(pressly
stipulated but also to all the conse.uences which, according to their
nature, may be in ,eeping with good $aith, usage and law ='rticle 1!10>.
3%! 9n case o$ doubt, the interpretation consistent with good $aith is
$ollowed (PeopleAs ;ar vs. ;ommando +ecurit8).
3%% Darty cannot e(cuse themselves on the ground that it has become
unpro$itable. ;aw will not protect you $rom your own bad *udgment.
Nuasi/contract ='rticle 1130>
Art. 1160. #bligations derived from .uasi/contracts shall be
subject to the provisions of Chapter '% Title K>,,% of this Gook.
! Delict ='rticle 1131>
Art. 1161. Civil obligations arising from criminal offenses shall
be governed b" the penal laws% subject to the provisions of article
6'CC% and of the pertinent provisions of Chapter 6% Preliminar" Title%
on 9uman *elations% and of Title K>,,, of this Gook% regulating
damages.
3%0 General *ule+ 9$ you commit a crime, you are liable both
criminally and civilly.
3%3 Exception: No private o$$ended party =e.g. contempt, etc.>
3%5 The Civil Code deals with the civil aspect =i.e. indemni$ication $or
loss o$ earning capacity>.
% Nuasi/delict ='rticle 113>
Art. 1162. #bligations derived from .uasi/delicts shall be
governed b" the provisions of Chapter 6% Title K>,, of this Gook% and
b" special laws.
3%8 Quasi4delict is a civil law term while tort is a common law term.
3%: +i$$erence between Contractual ;iability and Quasi4+elict
300 9n .uasi4delict, the obligation arises only when there is a
violation. #ithout violation, there is no obligation. 9t is the breach
itsel$ which gives rise to the obligation.
301 9n contracts, there is already an obligation which e(ists prior
to or even without a breach. The breach o$ the contract is immaterial
to the legal obligation.
30 Example: Contract o$ sale o$ watch. 9$ both parties per$orm
their obligation, the contract is e(tinguished. There is no breach, but
there is an obligation.
(;ompare t#e a5ove example 4it# t#e one 5elo4)
Example: +riving rec,lessly, ' hits a child. #hen did the obligation
came to being) #hen there was in*ury due to negligence. =Negligence
per se does not give rise to a .uasi4delict unless there is in*ury.>
@reach and .uasi4delict are inseparable. @ut contract and breach may
be separable.
30! Nuestion+ 're contracts and .uasi4delicts mutually e(clusive)
Ans;er: No.
9n :utierrez vs. :utierrez, there was a collision between a bus and a car
and a passenger o$ the bus was in*ured. 9t was proven that the driver o$
the car was a minor and an incompetent driver. The passenger sued
against them all. The /upreme Court held that the bus driver, bus owner
and the driver o$ the car =through his $ather> are *ointly and severally liable
to the passenger. The liability o$ the owner o$ the bus and the bus driver
rests on that o$ a contract. 2n the other hand, the $ather is responsible $or
the acts o$ his son and is there$ore responsible $or the negligence o$ the
minor. Aere, it is clear that breach o$ contract and .uasi4delict are
separate.
Aowever, they can overlap as can be seen in the $ollowing e(ample< @us
driver drives rec,lessly and the bus hits a tree. ' passenger is in*ured.
The passenger and sue the driver $or .uasi4delict =due to negligence> or $or
crime or the bus company $or breach o$ contract o$ carriage or $or .uasi4
delict =negligence in the selection and supervision>.
The cause o$ action one chooses determines the<
0 Darties involved
1 +egree o$ proo$
+e$enses
2ne can tailor his suit depending on the cause o$ action he chooses.
A. #ature an+ E..ect o. ,'li/ations
1. Oinds of Prestations
0 To give ='rticles 113!41133>
Art. 1163. :ver" person obliged to give something is also
obliged to take care of it with the proper diligence of a good father
of a famil"% unless the law or the stipulation of the parties re.uires
another standard of care.
Art. 1164. The creditor has a right to the fruits of the thing
from the time the obligation to deliver it arises. 9owever% he shall
ac.uire no real right over it until the same has been delivered to
him.
Art. 1165. 0hen what is to be delivered is a determinate
thing% the creditor% in addition to the right granted him b" article
''C4% ma" compel the debtor to make the deliver".
,f the thing is indeterminate or generic% he ma" ask that the
obligation be complied with at the e-pense of the debtor.
,f the obligor dela"s% or has promised to deliver the same
thing to two or more persons who do not have the same interest%
he shall be responsible for an" fortuitous event until he has
effected the deliver".
Art. 1166. The obligation to give a determinate thing
includes that of delivering all its accessions and accessories% even
though the" ma" not have been mentioned.
i. 7o give a determinate t#ing
30% Primar" #bligation+ 6iving what is supposed to be given.
655 3 Accessor! ,'li/ations:
1. '$ter constitution o$ the obligation and be$ore delivery, to ta,e
care o$ it with the proper diligence o$ a good $ather o$ the $amily
='rticle 113!>
303 General *ule+ +iligence o$ a good $ather o$ the
$amily
305 Exception: ;aw or stipulation re.uires di$$erent
standard o$ care
308 9$ through negligence, something causes the thing
damage, the debtor is liable $or damages.
30: This is not applicable to a generic thing.
. 7o account and deliver to t#e creditor t#e !ruits i! t#e t#ing
5ears !ruits upon t#e time t#e o5ligation to deliver it arises
='rticle 113%>.
330 Aowever, ownership is trans$erred only by delivery.
Aence, creditors right over the $ruits is merely personal.
331 Example: ' sold @ a mango plantation to be
delivered on Manuary 1. Come Manuary 1, ' did not deliver.
' instead sold the $ruits to C, a buyer in good $aith. @ sues
' $or speci$ic per$ormance. Court awards the plantation to
@. +oes @ have a right to the $ruits) Hes, as against '. No,
as against C, because @s right over the $ruits is only
personal. @s remedy is to go against ' $or the value o$ the
$ruits.
!. 7o deliver t#e accessions and accessories ='rticle 1133>
33 +ont ta,e accession in the technical sense =or else, it
might overlap with ii>. "nderstand it to mean things that go
with the thing to be delivered =i.e. radio o$ the car>.
33! -emedies 'vailable to the Creditor
1. /peci$ic per$ormance ? the debtor must per$orm it personally
. 1.uivalent per$ormance ? damages
33% +amages may be obtained e(clusively or in addition
to the 1
st
action.
330 -ules regarding 9mprovement, ;oss or +eterioration ='rticles
118:, 11:0, 11:% >
Art. 1189. 0hen the conditions have been imposed
with the intention of suspending the efficac" of an obligation
to give% the following rules shall be observed in case of the
improvement% loss or deterioration of the thing during the
pendenc" of the condition+
5'7 ,f the thing is lost without the fault of the debtor%
the obligation shall be e-tinguished3
567 ,f the thing is lost through the fault of the debtor% he
shall be obliged to pa" damages3 it is understood
that the thing is lost when it perishes% or goes out of
commerce% or disappears in such a wa" that its
e-istence is unknown or it cannot be recovered3
587 0hen the thing deteriorates without the fault of the
debtor% the impairment is to be borne b" the
creditor3
5=7 ,f it deteriorates through the fault of the debtor% the
creditor ma" choose between the rescission of the
obligation and its fulfillment% with indemnit" for
damages in either case3
5)7 ,f the thing is improved b" its nature% or b" time% the
improvement shall inure to the benefit of the
creditor3
5B7 ,f it is improved at the e-pense of the debtor% he
shall have no other right than that granted to the
usufructuar".
Art. 1190. 0hen the conditions have for their purpose
the e-tinguishment of an obligation to give% the parties%
upon the fulfillment of said conditions% shall return to each
other what the" have received.
,n case of the loss% deterioration or improvement of
the thing% the provisions which% with respect to the debtor%
are laid down in the preceding article shall be applied to the
part" who is bound to return.
As for the obligations to do and not to do% the
provisions of the second paragraph of article ''DC shall be
observed as regards the effect of the e-tinguishment of the
obligation.
Art. 1194. ,n case of loss% deterioration or
improvement of the thing before the arrival of the da"
certain% the rules in article ''DE shall be observed.

1. -e.uisites
a. 2bligation has a suspensive condition, a resolutory condition
or term
b. The obligor is obligated to deliver a determinate thing
c. There is improvement, loss or deterioration be$ore the
$ul$illment o$ the condition or the period
d. The condition is $ul$illed or the period arrives
. -ules Droper
a. 9$ the thing is lost without the $ault o$ the debtor, the
obligation is e(tinguished
b. 9$ the thing is lost through the $ault o$ the debtor, he must
pay damages
333 The thing is lost when it perishes, goes out o$
commerce or disappears in such a way that its e(istence
is un,nown or cannot be recovered.
c. 9$ the thing deteriorates without the $ault o$ the debtor, the
creditor must accept the thing in its impaired condition
d. 9$ the thing deteriorates through the $ault o$ the debtor, the
creditor may choose between
i. -esolution ='rticle 118:> plus damages
ii. Ful$illment o$ the obligation plus damages
e. 9$ the thing is improved by nature or by time, the
improvement shall inure to the bene$it o$ the creditor
$. 9$ the thing is improved at the e(pense o$ the debtor, the debtor
shall the same rights as a usu$ructuary
ii. 7o give a generic t#ing
335 -emedies 'vailable to the Creditor
1. /peci$ic per$ormance ? the debtor must per$orm it personally
. /ubstitute per$ormance ? done by someone else =per$orm at the
e(pense o$ the debtor>
!. 1.uivalent per$ormance ? damages
338 +amages may be obtained e(clusively or in addition
to the 1
st
actions.
c. 7o +o ='rticle 1135>
Art. 1167. ,f a person obliged to do something fails to do it%
the same shall be e-ecuted at his cost.
This same rule shall be observed if he does it in
contravention of the tenor of the obligation. Aurthermore% it ma" be
decreed that what has been poorl" done be undone.
i. 2nly the obligor can do =personalisimo)
33: -emedies 'vailable to the Creditor
1. 1.uivalent per$ormances ? damages
ii. 'nyone else can do it =not personalisimo>
350 -emedies 'vailable to the Creditor
1. /ubstitute per$ormance ? done by someone else =per$orm at the
. 1.uivalent per$ormance ? damages
351 +amages may be obtained e(clusively or in addition
to the 1
st
actions.
1 #ot to +o ='rticle 1138>
Art. 1168. 0hen the obligation consists in not doing% and
the obligor does what has been forbidden him% it shall also be
undone at his e-pense.
35 This includes the obligation not to give.
35! -emedies 'vailable to the Creditor
i. /ubstitute per$ormance 4 done by someone else =per$orm at the
ii. 1.uivalent per$ormance 4 damages
35% +amages may be obtained e(clusively or in addition
to the 1
st
actions.
675 Summary of the rules regarding remedies availale to the !reditor in
oligations to give" to do and not to do.
#bligation
@pecific
Performance
:.uivalent
Performance
@ubstitute
Performance
'. To give
a. Determinate thing ] ] ^
b. Determinable thing ] ] ]
6. To do
4 >er" personal ^ ] ^
' 2ot ver" personal ^ ] ]
8. 2ot to do ^ ] ]
353 /peci$ic per$ormance is the per$ormance o$ the prestation itsel$.
355 9n obligations to do or not to do, speci$ic per$ormance is not
available since it will go against the constitutional prohibition against
involuntary servitude.
358 1.uivalent per$ormance is the payment o$ damages
35: /ubstitute per$ormance is when someone else per$orms or
something else is per$ormed at the e(pense o$ the debtor.
. ,rregularit" in Performance
a. Attri'uta'le to t"e De'tor 1culpa'le2
380 'rticle 1150 provides that those who in the per$ormance o$
their obligations are guilty o$ $raud, negligence, or delay and those who
in any manner contravene the tenor thereo$, are liable $or damages.
'ccording to Dro$essor @alane, the phrase O who in any manner
contravene the tenor thereo$P is a catch4all provision. Aowever, such is
unnecessary. Nothing will escape $raud, negligence or delay.
i. ?raud ='rticles 1150, 1151>
Art. 1170. Those who in the performance of their
obligations are guilt" of fraud% negligence% or dela"% and those
who in an" manner contravene the tenor thereof% are liable for
damages.
Art. 1171. *esponsibilit" arising from fraud is
demandable in all obligations. An" waiver of an action for future
fraud is void.
381 The problem with $raud is the term. 9t is used in di$$erent
meanings in the Code.
38 Fraud may be de$ined as the voluntary e(ecution o$ a
wrong$ul act, or will$ul omission, ,nowing and intending the e$$ects
which naturally and necessarily arise $rom such act or omission.
Fraud is the deliberate and intentional evasion o$ the normal
$ul$illment o$ the obligation. 9t is distinguished $rom negligence by
the presence o$ deliberate intent, which is lac,ing in the latter.
(Legaspi .il vs. ;A)
38! Fraud under 'rticle 1150 is more properly called as malice.
684 Fraud under 'rticle 1150 must not be con$used with $raud
under 'rticle 1!!8
. Fraud under 'rticle 1!!8 is more properly

called as deceit.
380 9n 'rticle 1!!8, $raud pree(ists the obligation, thus the
obligation is voidable. +eceit vitiates consent in contracts. +eceit
is antecedent $raud. The deceit occurs by using insidious words
machinations. #ithout this deceit, the other party would not have
entered into the contract.
9n 'rticle 1151, there was already an obligation be$ore the $raud
e(ists. Ealice is subse.uent $raud.
Example o! !raud as deceit under Article )((/: ' and @ entered
into a contract o$ sale o$ a diamond nec,lace. Aowever, the
nec,lace was really made o$ glass. Fraud here is deceit. There was
vitiation o$ consent hence the contract is voidable.
Example o! !raud as malice under Article ))1). ' and @ entered
into a contract. @ will deliver $urniture made o$ narra but @
delivered one made o$ plywood. Fraud here is malice. 9t will not
a$$ect the validity o$ the contract.
383 1$$ects o$ Fraud ='rticles 1150, 1151>
1. Creditor may insist on proper substitute or speci$ic per$ormance
='rticle 1!!
>& or
. -escissionK-esolution ='rticle 11:1
>
!. +amages in either case ='rticle 1150>
ii. ,egligence
385 Negligence is the absence o$ due diligence ='rticle 115!>
Art. 1173. The fault or negligence of the obligor consists
in the omission of that diligence which is re.uired b" the nature
_
Art. )((/. There is $raud when, through insidious words or machinations o$ one o$ the
contracting parties, the other is induced to enter into a contract which, without them, he would not
have agreed to.
_
'rt. 1!!. ' debt shall not be understood to have been paid unless the thing or service in
which the obligation consists has been completely delivered or rendered, as the case may be.
_
Art. ))2). The power to rescind obligations is implied in reciprocal ones, in case one o$ the
obligors should not comply with what is incumbent upon him.
The in*ured party may choose between the $ul$illment and the rescission o$ the obligation,
with the payment o$ damages in either case. Ae may also see, rescission, even a$ter he has
chosen $ul$illment, i$ the latter should become impossible.
The court shall decree the rescission claimed, unless there be *ust cause authori7ing the
$i(ing o$ a period.
This is understood to be without pre*udice to the rights o$ third persons who have ac.uired
the thing, in accordance with articles 1!80 and 1!88 and the Eortgage ;aw.
of the obligation and corresponds with the circumstances of the
persons% of the time and of the place. 0hen negligence shows
bad faith% the provisions of articles ''C' and 664'% paragraph 6%
shall appl".
,f the law or contract does not state the diligence which
is to be observed in the performance% that which is e-pected of
a good father of a famil" shall be re.uired.
Art. 1172. *esponsibilit" arising from negligence in the
performance of ever" kind of obligation is also demandable% but
such liabilit" ma" be regulated b" the courts% according to the
circumstances.
388 ;i,e $raud, negligence results in improper per$ormance. @ut
it is characteri7ed by lac, o$ care, unli,e $raud which is
characteri7ed by malice.
38: ;ac, o$ care means lac, o$ due diligence or the care o$ a
good $ather o$ the $amily (5onus pater!amilias) under 'rticle 113!.
3:0 9n 1nglish law, due diligence is called the diligence o$ a
prudent businessman, since they are more commerce4oriented.
3:1 Types o$ Negligence
1. /imple
. 6ross
3: The determination o$ due diligence is always relative. 9t will
depend on
1. The nature o$ the obligation
. Nature o$ the circumstances o$
a. Derson
b. Time
c. Dlace
3:! Example: The diligence re.uired in shipping hinges is
di$$erent $rom the diligence re.uired in shipping the Pieta de
9ic#aelangelo. The shipper must observe the diligence o$ a
good $ather o$ the $amily in both cases but the standard o$
care is di$$erent. 9t is much higher $or the Pieta.
3:% The diligence o$ a good $ather o$ the $amily is the
imaginary standard.
3:0 1$$ects o$ Negligence ='rticles 1150, 115>
1. Creditor may insist on proper substitute or speci$ic per$ormance
='rticle 1!!>& or
. -escissionK-esolution ='rticle 11:1>
!. +amages in either case ='rticle 1150>
iii. Dela8 (9ora)
Art. 1169. Those obliged to deliver or to do something
incur in dela" from the time the obligee judiciall" or
e-trajudiciall" demands from them the fulfillment of their
obligation.
9owever% the demand b" the creditor shall not be
necessar" in order that dela" ma" e-ist+
5'7 0hen the obligation or the law e-pressl" so declare3 or
567 0hen from the nature and the circumstances of the
obligation it appears that the designation of the time
when the thing is to be delivered or the service is to be
rendered was a controlling motive for the establishment
of the contract3 or
587 0hen demand would be useless% as when the obligor
has rendered it be"ond his power to perform.
,n reciprocal obligations% neither part" incurs in dela" if
the other does not compl" or is not read" to compl" in a proper
manner with what is incumbent upon him. Arom the moment
one of the parties fulfills his obligation% dela" b" the other
begins.
3:3 +elay has nothing to do with .uality but only with
punctuality.
3:5 +elay is the non4$ul$illment o$ the obligation with respect to
time. 9n $raud and negligence, the .uestion is the .uality even i$
per$ormed on time. 9n delay, even i$ the .uality is e(cellent but the
per$ormance is not in due time, the debtor is liable.
3:8 -e.uisites o$ delay (+++ vs. 9oon4al6)
0 2bligation is demandable and li.uidated
1 +elay is through $ault or negligence
Creditor re.uires per$ormance either *udicially =through court
action> or e(tra*udicially =any communication by the creditor to
debtor>.
3:: 9n reciprocal obligations =obligations with a counterpart
prestation> which re.uire simultaneous per$ormance, demand is still
needed.
500 I#at is t#e !orm o! suc# demandJ 'ny
communication o$ a party that he is ready and willing to comply
with his obligation. 9$ a$ter receipt o$ demand and the other
party does not comply with his obligation, he is in delay.
501 ! Iinds o$ +elay
1. 9ora solvendi
50 +elay in per$ormance incurred by the debtor.
50! -e.uisites<
a. The obligation is demandable and li.uidated
b. +ebtor delays per$ormance either because o$ dolo or
culpa
c. The creditor demands the per$ormance either *udicially or
e(tra*udicially
50% General *ule+ +emand is necessary. =mora
solvendi ex persona>. Thus, no demand, no delay.
500 Exceptions: =mora solvendi ex re> ? 'rticle 113:
a. #hen the obligation or the law e(pressly so declares
503 Eere setting o$ due date is not enough. This
does not constitute automatic delay.
505 There must be an e(press stipulation to the
$ollowing e$$ect< ONon4per$ormance on that day is
delay without need o$ demand.P (Dela Rosa vs. -PI)
b. #hen it appears $rom the nature and circumstances o$
the obligation that time was a controlling motive $or the
establishment o$ the contract.
508 Example: The wedding gown has to be ready
be$ore the wedding.
c. #hen demand would be useless, when obligor has
rendered it beyond his power to per$orm.
50: Example: ' sold the $ruits o$ the mango
plantation he already sold to @ to C. @ need not
ma,e a demand on ' to deliver the $ruits since
demand would be useless.
510 1$$ects o$ 9ora +olvedi
a. #hen the obligation is to deliver a determinate thing, the
ris, is placed on the part o$ the debtor ='rticle 1130
>
b. +amages
c. -escissionK -esolution ='rticle 11:1>
. 9ora accipiendi
511 The creditor incurs in delay when debtor tenders
payment or per$ormance, but the creditor re$uses to accept
it without *ust cause.
51 9ora accipiendi is related to payment =consignation>.
_
Art. ))&$. #hen what is to be delivered is a determinate thing, the creditor, in addition to the
right granted him by article 1150, may compel the debtor to ma,e the delivery.
9$ the thing is indeterminate or generic, he may as, that the obligation be complied with at
the e(pense o$ the debtor.
9$ the obligor delays, or has promised to deliver the same thing to two or more persons
who do not have the same interest, he shall be responsible $or any $ortuitous event until he has
e$$ected the delivery.
51! -e.uisites<
a. 'n o$$er o$ per$ormance by the debtor who has the
re.uired capacity
b. The o$$er must be to comply with the prestation as it
should be per$ormed
c. The creditor re$uses the per$ormance without *ust cause.
51% 1$$ects o$ 9ora Accipiendi:
a. -esponsibility o$ debtor $or the thing is limited to $raud
and gross negligence
b. +ebtor is e(empted $rom ris, o$ loss o$ thing wKc
automatically pass to creditor
c. 1(penses incurred by debtor $or preservation o$ thing
a$ter the delay shall be chargeable to creditor.
d. 9$ the obligation has interest, debtor shall not have
obligation to pay the same $rom the time o$ the delay
e. Creditor becomes liable $or damages
$. +ebtor may relieve himsel$ by consignation o$ the thing
!. ;ompensatio morae
510 +elay on both sides in reciprocal obligations, cancel
each other out.
b. #ot Attri'uta'le to t"e De'tor 1non<culpa'le2
0 ?ortuitous event
Art. 1174. :-cept in cases e-pressl" specified b" the law%
or when it is otherwise declared b" stipulation% or when the
nature of the obligation re.uires the assumption of risk% no
person shall be responsible for those events which could not be
foreseen% or which% though foreseen% were inevitable.
716 'lso governed by 'rticle 11
but is called loss there, a

cause $o e(tinguishment o$ obligation.
515 'lso called caso !ortuioto !orce mar"eure act o$ 6od.
518 -e.uisites (,a6pil vs. ;A)
1. The cause o$ the un$oreseen and une(pected occurrence, or the
$ailure to comply with his obligations, must be independent o$
the human will
Art. )%%). 9$ the thing has been lost or i$ the prestation has become impossible without the
$ault o$ the solidary debtors, the obligation shall be e(tinguished.
9$ there was $ault on the part o$ any one o$ them, all shall be responsible to the creditor, $or
the price and the payment o$ damages and interest, without pre*udice to their action against the
guilty or negligent debtor.
9$ through a $ortuitous event, the thing is lost or the per$ormance has become impossible
a$ter one o$ the solidary debtors has incurred in delay through the *udicial or e(tra*udicial demand
upon him by the creditor, the provisions o$ the preceding paragraph shall apply.
. 9t must be impossible to $oresee the event which constitute the
caso !ortuito, or i$ it can be $oreseen, it must be impossible to
avoid
!. The occurrence must be such as to render it impossible $or the
debtor to $ul$ill his obligation in a normal manner
%. The obligor must be $ree $rom any participation in the
aggravation o$ the in*ury resulting to the creditor
51: General *ule+ #hen a debtor is unable to $ul$ill his
obligation because o$ a $ortuitous event or !orce ma"eure, he cannot
be held liable $or damages or non4per$ormance.
C64 Exceptions:
1. #hen the law so provides =i.e. 'rticle 1130, B
>
. #hen there is e(press stipulation
51 Fortuitous event yields to contrary stipulation.
!. #hen the nature o$ the obligation re.uires the assumption o$
ris, =i.e. insurance contracts>
!. #ther Provisions
Art. 1175. ?surious transactions shall be governed b" special
laws.
5 'rticle 1150 is dead letter law because o$ the li$ting o$ the ceiling on
interest rates. Thus, usury has been decriminali7ed, but the
decriminali7ation cannot be given retroactive e$$ect =with respect to the
civil aspect>.
5! /ome decisions have struc, down high interests, not because they
were usurious but because such rates were unconscionable.
724 Correlate 'rticle 1150 with 'rticles 1:05, 1%1! and 1:31
.
Art. 1176. The receipt of the principal b" the creditor without
reservation with respect to the interest% shall give rise to the
presumption that said interest has been paid.
The receipt of a later installment of a debt without reservation
as to prior installments% shall likewise raise the presumption that such
installments have been paid.
`
Article ))&$ '%. 9$ the obligor delays, or has promised to deliver the same thing to two or more
persons who do not have the same interest, he shall be responsible $or any $ortuitous event until
he has e$$ected the delivery.
`
Art. )2$1. Contracts and stipulations, under any cloa, or device whatever, intended to
circumvent the laws against usury shall be void. The borrower may recover in accordance with the
laws on usury.
Art. )*)(. 9nterest paid in e(cess o$ the interest allowed by the usury laws may be
recovered by the debtor, with interest thereon $rom the date o$ the payment.
Art. )2&). "surious contracts shall be governed by the "sury ;aw and other special laws,
so $ar as they are not inconsistent with this Code.
50 Dresumptions regarding<
a. 9nterest bearing debt
53 Dresumption that interest has been paid i$ the principal has
been received without reservation regarding interest,
b. +ebt payable in installments
55 Dresumption that earlier installments have been paid i$ the
later installment has been received without reservation regarding
the previous installments.
58 These are only rebuttable presumptions, you can prove through
other evidence. Hou can prove mista,e.
Art. 1177. The creditors% after having pursued the propert" in
possession of the debtor to satisf" their claims% ma" e-ercise all the
rights and bring all the actions of the latter for the same purpose% save
those which are inherent in his person3 the" ma" also impugn the acts
which the debtor ma" have done to defraud them.
5: 1n$orcement o$ Creditors -emedies
a. ;evy and e(ecution o$ the debtors non4e(empt properties ='rticles
1155, !3
>
b. Accion su5rogatoria
5!0 /ubrogatory action premised on the theory that Othe debtor
o$ my debtor is my debtor.P
5!1 -e.uisites<
0 Creditor has a right o$ credit against the debtor.
1 Credit is due and demandable.
Failure o$ debtor to collect his own credit $rom a third person
either through malice or negligence.
! 9nsu$$iciency o$ assets o$ the debtor to satis$y the creditors
credit
% -ight =o$ account> is not intuitu personae
c. Accion pauliana ='rticles 1!8041!8:>
5! -ight o$ creditors to rescind alienations by debtor which are
pre*udicial to them to the e(tent o$ the pre*udice.
5!! Example: ' donates land to C but he owes @. ' has no
other property. @ can rescind the donation to C. The donation is
rescissible to the e(tent o$ the debt.
5!% -e.uisites<
0 There is a credit in $avor o$ the plainti$$
1 The debtor has per$ormed an act subse.uent to the contract,
giving advantage to other persons.
Art. %%(&. The debtor is liable with all his property, present and $uture, $or the $ul$illment o$ his
obligations, sub*ect to the e(emptions provided by law.
The creditor is pre*udiced by the debtors act which are in
$avor o$ third parties and rescission will bene$it the creditor.
! The creditor has no other legal remedy.
% The debtors acts are $raudulent.
d. Accion directa
735 ' direct =not subrogatory> action by the creditor against his
debtors debtor, a remedy which gives the creditor the prerogative
to act in his own name, such as the actions o$ the lessor against the
sublessee ='rticle 130
>, the laborer o$ an independent contractor

against the owner ='rticle 15:
C
>, the principal against the
subagent ='rticle 18:!
>, and the vendor4a4retro against the

trans$eree o$ the vendee ='rticle 1308
>.
5!3 This is an e(ception to the relativity o$ contracts.
5!5 Example ):
There are two separate contracts here< The contract o$ lease
between ' and @ and the contract o$ sub4lease between @ and C. C
owes @ D5000. @ owes ' D0000.
2rdinarily, ' cannot sue C since there is no relationship between
them, but in 'rticle 130, ' can sue C $or D0000.
1(/ Example %:
Art. )&$%. The sublessee is subsidiarily liable to the lessor $or any rent due $rom the lessee.
Aowever, the sublessee shall not be responsible beyond the amount o$ rent due $rom him, in
accordance with the terms o$ the sublease, at the time o$ the e(tra4*udicial demand by the lessor.
Dayments o$ rent in advance by the sublessee shall be deemed not to have been made, so
$ar as the lessorGs claim is concerned, unless said payments were e$$ected in virtue o$ the custom o$
the place.
*
Art. )1%2. Those who put their labor upon or $urnish materials $or a piece o$ wor, underta,en by
the contractor have an action against the owner up to the amount owing $rom the latter to the
contractor at the time the claim is made. Aowever, the $ollowing shall not pre*udice the laborers,
employees and $urnishers o$ materials<
=1> Dayments made by the owner to the contractor be$ore they are due&
=> -enunciation by the contractor o$ any amount due him $rom the owner.
This article is sub*ect to the provisions o$ special laws.
_
Art. )/2(. 9n the cases mentioned in Nos. 1 and o$ the preceding article, the principal may
$urthermore bring an action against the substitute with respect to the obligations which the latter
has contracted under the substitution.
_
Art. )&0/. The vendor may bring his action against every possessor whose right is derived $rom
the vendee, even i$ in the second contract no mention should have been made o$ the right to
repurchase, without pre*udice to the provisions o$ the Eortgage ;aw and the ;and -egistration ;aw
with respect to third persons.
Professor Ruben F. Balane Pa)e .,4 of +,-
sub4lease lease
' @ C
piece o$ wor,
'
(customer)
labor
C @
contract o$ contract $or a
(contractor) (4or6er)
'gain, there are two separate contracts here< The contract $or a
piece o$ wor, between ' and @ and the contract o$ labor between @
and C. ' owes @ D10,000 which is not $ully paid yet. @ owes C
D0000 $or unpaid wages. C can go a$ter ' directly $or D0000.
Art. 1178. @ubject to the laws% all rights ac.uired in virtue of an
obligation are transmissible% if there has been no stipulation to the
contrar".
5!: -ights are transmissible unless the rights are personal.
G. Di..erent ?in+s o. ,'li/ations
0 According to Demandabilit" ='rticles 115:411:>
Art. 1179. :ver" obligation whose performance does not
depend upon a future or uncertain event% or upon a past event
unknown to the parties% is demandable at once.
:ver" obligation which contains a resolutor" condition shall also
be demandable% without prejudice to the effects of the happening of
the event.
Art. 1180. 0hen the debtor binds himself to pa" when his
means permit him to do so% the obligation shall be deemed to be one
with a period% subject to the provisions of article ''EC.
Art. 1181. ,n conditional obligations% the ac.uisition of rights%
as well as the e-tinguishment or loss of those alread" ac.uired% shall
depend upon the happening of the event which constitutes the
condition.
Art. 1182. 0hen the fulfillment of the condition depends upon
the sole will of the debtor% the conditional obligation shall be void. ,f it
depends upon chance or upon the will of a third person% the obligation
shall take effect in conformit" with the provisions of this Code.
Art. 1183. ,mpossible conditions% those contrar" to good
customs or public polic" and those prohibited b" law shall annul the
obligation which depends upon them. ,f the obligation is divisible% that
part thereof which is not affected b" the impossible or unlawful
condition shall be valid.
The condition not to do an impossible thing shall be considered
as not having been agreed upon.
Art. 1184. The condition that some event happen at a
determinate time shall e-tinguish the obligation as soon as the time
e-pires or if it has become indubitable that the event will not take
place.
Art. 1185. The condition that some event will not happen at a
determinate time shall render the obligation effective from the
moment the time indicated has elapsed% or if it has become evident
that the event cannot occur.
Professor Ruben F. Balane Pa)e .,* of +,-
,f no time has been fi-ed% the condition shall be deemed fulfilled
at such time as ma" have probabl" been contemplated% bearing in
mind the nature of the obligation.
Art. 1186. The condition shall be deemed fulfilled when the
obligor voluntaril" prevents its fulfillment.
Art. 1187. The effects of a conditional obligation to give% once
the condition has been fulfilled% shall retroact to the da" of the
constitution of the obligation. 2evertheless% when the obligation
imposes reciprocal prestations upon the parties% the fruits and
interests during the pendenc" of the condition shall be deemed to
have been mutuall" compensated. ,f the obligation is unilateral% the
debtor shall appropriate the fruits and interests received% unless from
the nature and circumstances of the obligation it should be inferred
that the intention of the person constituting the same was different.
,n obligations to do and not to do% the courts shall determine% in
each case% the retroactive effect of the condition that has been
complied with.
Art. 1188. The creditor ma"% before the fulfillment of the
condition% bring the appropriate actions for the preservation of his
right.
The debtor ma" recover what during the same time he has paid
b" mistake in case of a suspensive condition.
Art. 1189. 0hen the conditions have been imposed with the
intention of suspending the efficac" of an obligation to give% the
following rules shall be observed in case of the improvement% loss or
deterioration of the thing during the pendenc" of the condition+
5'7 ,f the thing is lost without the fault of the debtor% the
obligation shall be e-tinguished3
567 ,f the thing is lost through the fault of the debtor% he shall be
obliged to pa" damages3 it is understood that the thing is lost
when it perishes% or goes out of commerce% or disappears in
such a wa" that its e-istence is unknown or it cannot be
recovered3
587 0hen the thing deteriorates without the fault of the debtor%
the impairment is to be borne b" the creditor3
5=7 ,f it deteriorates through the fault of the debtor% the creditor
ma" choose between the rescission of the obligation and its
fulfillment% with indemnit" for damages in either case3
5)7 ,f the thing is improved b" its nature% or b" time% the
improvement shall inure to the benefit of the creditor3
5B7 ,f it is improved at the e-pense of the debtor% he shall have no
other right than that granted to the usufructuar".
Art. 1190. 0hen the conditions have for their purpose the
e-tinguishment of an obligation to give% the parties% upon the
Professor Ruben F. Balane Pa)e .,. of +,-
fulfillment of said conditions% shall return to each other what the"
have received.
,n case of the loss% deterioration or improvement of the thing%
the provisions which% with respect to the debtor% are laid down in the
preceding article shall be applied to the part" who is bound to return.
As for the obligations to do and not to do% the provisions of the
second paragraph of article ''DC shall be observed as regards the
effect of the e-tinguishment of the obligation.
Art. 1191. The power to rescind obligations is implied in
reciprocal ones% in case one of the obligors should not compl" with
what is incumbent upon him.
The injured part" ma" choose between the fulfillment and the
rescission of the obligation% with the pa"ment of damages in either
case. 9e ma" also seek rescission% even after he has chosen
fulfillment% if the latter should become impossible.
The court shall decree the rescission claimed% unless there be
just cause authori$ing the fi-ing of a period.
This is understood to be without prejudice to the rights of third
persons who have ac.uired the thing% in accordance with articles '8D)
and '8DD and the <ortgage !aw.
Art. 1192. ,n case both parties have committed a breach of the
obligation% the liabilit" of the first infractor shall be e.uitabl"
tempered b" the courts. ,f it cannot be determined which of the
parties first violated the contract% the same shall be deemed
e-tinguished% and each shall bear his own damages.
a. &ure
5%0 ' pure obligation is one which has neither a condition nor a
term attached to it. 9t is one which is sub*ect to no contingency.
5%1 ' pure obligation is demandable at once ='rticle 115:>.
b. *on+itional
5% ' condition is a $uture and uncertain event.
5%! 'll conditions are $uture.
5%% 'rticle 115: mentions the term Opast event un,nown to the
partiesP. This has been critici7ed by many commentators. This is a
contradiction in terms. The condition in a past even un,nown to the
parties is ,nowledge by the parties o$ the past event.
5%0 9n conditional obligation, the happening o$ the condition
determines its birth or death. 9n term, the happening o$ the term
determines its demandability.
5%3 Types o$ Conditions
i. 1. +uspensive
5%5 The $ul$illment o$ a suspensive condition results in the
ac.uisition o$ rights arising out o$ the obligation.
Professor Ruben F. Balane Pa)e .,+ of +,-
5%8 The condition that some event happen at a
determinate time shall e(tinguish the obligation as soon as
the time e(pires or i$ it has become indubitable that the
event will not ta,e place ='rticle 118%>
5%: The condition that some event will not happen at a
determinate time shall render the obligation e$$ective $rom
the moment the time indicated has elapsed, or i$ it has
become evident that the event cannot occur ='rticle 1180>.
500 The moment the suspensive condition happens, the
obligation becomes e$$ective and en$orceable. Aowever, the
e$$ects o$ the obligation retroact to the moment when such
obligation was constituted or created. @y the principle o$
retroactivity, there$ore, a $iction is created whereby the
binding tie o$ the conditional obligation is produced $rom the
time o$ its per$ection, and not $rom the happening o$ the
condition ='rticle 1185>
501 The law does not re.uire the delivery or payment o$
the $ruits or interests accruing be$ore the happening o$ the
suspensive condition. The right to the $ruits o$ the thing is
not within the principle o$ retroactivity o$ conditional
obligations ='rticle 1185>
50 9$ the obligation imposes reciprocal prestations, $ruits
and interest are deemed mutually compensated.
Example: 9 promise to sell my mango plantation at
D0000Khectare i$ you pass the bar e(amination.
9 do not have to give you the $ruits $rom the time o$ the
agreement to the release o$ the bar e(ams.
50! 9$ the obligation is unilateral, debtor appropriates the
$ruits.
50% 9n obligations to do and not to do, the courts shall
use sound discretion to determine the retroactive e$$ect o$
the $ul$illment o$ the condition ='rticle 1185>
500 The creditor may, be$ore the $ul$illment o$ the
condition, bring the appropriate actions $or the preservation
o$ his right ='rticle 1188, 1
st
B>. M@; -eyes critici7es the use
o$ the word ObringP. The 1
st
B o$ 'rticle 1188 does not limit
itsel$ to *udicial actions. Thus, the word Ota,eP is better.
503 The debtor who paid be$ore the happening o$ the
condition may recover only when he paid by mista,e and
provided the action to recover is brought be$ore the
condition ='rticle 1188>.
. Resolutor8
505 The $ul$illment o$ the resolutory condition results in
the e(tinguishments o$ rights arising out o$ the obligation.
508 9$ the resolutory condition is $ul$illed, the obligation is
treated as i$ it did not e(ist. Thus, each party is bound to
return to the other whatever he has received, so that they
Professor Ruben F. Balane Pa)e .,/ of +,-
may be returned to their original condition be$ore the
creation o$ the obligation ='rticle 11:0>.
50: -esolution ='rticle 11:1> is $ound on the conditional
obligations because i$ there is a breach, the breach is a
resolutory condition which e(tinguishes the obligation.
760 'rticle 11:1 uses the term OrescissionP. The better
term is OresolutionP. The term rescission is also $ound in
'rticle 1!81
, rescissible contracts. -esolution is di$$erent

$rom rescission. -esolution is based on the non4$ul$illment o$
the obligation. -escission is based on economic pre*udice.
Furthermore, the character o$ resolution is principal and
retaliatory while the character o$ rescission is subsidiary.
This means that in resolution there is no need to show that
there is no other remedy. 9n rescission, the plainti$$ must
show that there is no other recourse.
531 The right o$ resolution applies to reciprocal
obligations.
53 ' reciprocal obligation has elements
1. prestations arising $rom the same source
. 1ach prestation is designed to be the counterpart o$ the
other
53! 'n e(ample o$ a reciprocal obligation is a contract o$
sale.
53% /ummary o$ -ulings on -esolution
1. The right to resolve is in inherent in reciprocal
obligations.
. The breach o$ the obligation must be substantial. Droo$
o$ substantial breach is a prere.uisite $or resolution.
!. The right o$ resolution can be e(ercised e(tra*udicially
and will ta,e e$$ect upon communication to the de$aulting
party. This notice o$ resolution is necessary.
%. The e(ercise o$ this right can be the sub*ect o$ *udicial
review.
0. "pon resolution, there must be mutual restitution o$ the
ob*ect and its $ruits
_
Art. )(/). The $ollowing contracts are rescissible<
=1> Those which are entered into by guardians whenever the wards whom they represent
su$$er lesion by more than one4$ourth o$ the value o$ the things which are the ob*ect
thereo$&
=> Those agreed upon in representation o$ absentees, i$ the latter su$$er the lesion stated in
the preceding number&
=!> Those underta,en in $raud o$ creditors when the latter cannot in any other manner collect
the claims due them&
=%> Those which re$er to things under litigation i$ they have been entered into by the de$endant
without the ,nowledge and approval o$ the litigants or o$ competent *udicial authority&
=0> 'll other contracts specially declared by law to be sub*ect to rescission.
530 The parties are returned to their original
situation ? status =uo ante.
3. 9$ the aggrieved party has not per$ormed the prestation
and resolves e(tra*udicially, then all the aggrieved party
has to do is to re$use to per$orm his prestation.
5. 9$ the aggrieved party has per$ormed the prestation, the
aggrieved party can demand recovery. 9$ the de$aulting
party re$uses to return it, the aggrieved party must go to
court in order to recover.
533 9n Ilingan vs.;A (+eptem5er %& %00)) case, there
was an o5iter dictum that the operative act that resolves a
contract is the decree o$ court and the right should be
e(ercised *udicially. Dro$essor @alane says this is wrong.
Aowever, the ratio o$ the case said that the communication
must be a notarial notice.
ii. 1. Potestative
535 9n a potestative condition, the $ul$illment o$ the
condition depends upon the will o$ a party to the obligation.
538 9$ the condition depends upon the will o$ the creditor,
then the obligation is valid. 9n this case, there is a vinculum
"uris. The creditor can compel the debtor to per$orm the
obligation.
Example: 9 will give you my pomelo plantation i$ you
establish permanent residence in +avao.
This is a suspensive condition dependent on the sole will o$
the creditor. 9t becomes pure and demandable at once.
53: 'rticle 118 prohibits a suspensive potestative
condition dependent on the will o$ the debtor. The entire
obligation is void.
Example: 9 will sell you my car i$ 9 want to.
I#8 does it annul t#e entire o5ligationJ
@ecause there is no *uridical tie. -emember, an obligation is
one which has to be per$ormed regardless o$ the will o$ the
debtor. There is no element o$ compulsion. 9n the e(ample
above, the creditor can never compel, can never have a
cause o$ action.
550 9n reciprocal obligations, the law only tal,s about the
$irst prestation, the reciprocal prestation is not ta,en into
consideration.
. ;asual
551 9n a casual condition, the $ul$illment o$ the condition
depends upon chance andKor upon the will o$ a !
rd
person
and not on the will o$ a party.
55 Example: 9 will give you my house i$ the Dhilippines
renounces its $oreign debt in 0 years. =+ependent solely on
the will o$ a third person or on chance>.
Professor Ruben F. Balane Pa)e .,, of +,-
!. 9ixed
55! 9n a mi(ed condition, the $ul$illment o$ the condition
depends partly upon the will o$ a party to the obligation and
partly upon chance andKor the will o$ a !
rd
person.
55% #hen the condition depends not only upon the will o$
the debtor, but also upon chance or will o$ the others, the
obligation is valid.
550 Example: 9 will give you my house i$ you marry him
within ! years. =The condition here is a mi(ed condition. 9n
this case, the condition o$ marriage depends partly on the
creditor, a party to the obligation, and partly on a !
rd
person.>
553 +octrine o$ Constructive Compliance
555 The condition shall be deemed $ul$illed when the
obligor voluntarily prevents its $ul$illment ='rticle 1183>.
558 The principle underlying constructive $ul$illment o$
conditions is that a party to a contract may not be e(cused
$rom per$orming his promise by the non4occurrence o$ an
event which he himsel$ prevented.
55: -e.uisites
0 9ntent o$ the debtor to prevent $ul$illment o$ the
obligation
580 #here the act o$ the debtor, however,
although voluntary, did not have $or its purpose the
prevention o$ the $ul$illment o$ the condition, it will
not $all under the doctrine o$ constructive compliance.
1 'ctual prevention o$ compliance
581 The doctrine o$ constructive compliance
applies to potestative and mi(ed conditions.
iii. 1. Possi5le
58 ' condition is possible when it is capable o$
reali7ation according to nature, law, public policy or good
customs.
. Impossi5le
58! ' condition is impossible when it is not capable o$
reali7ation according to nature, law, public policy or good
customs.
58% The e$$ect o$ an impossible condition is to annul the
obligation ='rticle 118!>. The e$$ect o$ an impossible
condition regarding donations and succession is di$$erent. 9n
donations and succession, an impossible condition is simply
disregarded. The distinction can be e(plained by the $act
that 'rticle 118! re$ers to onerous obligation whereas
donations and succession are gratuitous.
Professor Ruben F. Balane Pa)e .,- of +,-
580 Aowever, i$ the obligation is divisible and that part o$
the obligation is not una$$ected by the impossible condition,
then the obligation is valid ='rticle 118!>.
583 Mustice Daras distinguishes as $ollows<
0 Dositive condition to do something impossible
585 Void condition and obligation
1 Negative condition not to do something impossible
588 +isregard the condition, the obligation is valid
Negative condition not to do something illegal
58: Valid condition and obligation
0 1. Positive
5:0 ' condition is positive when the condition involves the
per$ormance o$ an act.
. ,egative
5:1 ' condition is negative when the condition involves
the non4per$ormance o$ an act.
v. 1. Divisi5le
5: ' condition is divisible when the condition is
susceptible o$ partial reali7ation.
. Indivisi5le
5:! ' condition is indivisible when the condition is not
susceptible o$ partial reali7ation.
0 1. ;on"unctive
5:% ' condition is con*unctive when there are several
conditions, all o$ which must be reali7ed.
. Alternative
5:0 ' condition is alternative when there are several
conditions, only one o$ which must be reali7ed.
vii. 1. Express
5:3 ' condition is e(press when the condition is stated
e(pressly.
. Implied
5:5 ' condition is implied when the condition is tacit.
c. 7er ='rticles 11:!411:8>
Art. 1193. #bligations for whose fulfillment a da" certain
has been fi-ed% shall be demandable onl" when that da" comes.
#bligations with a resolutor" period take effect at once% but
terminate upon arrival of the da" certain.
A da" certain is understood to be that which must
necessaril" come% although it ma" not be known when.
,f the uncertaint" consists in whether the da" will come or
not% the obligation is conditional% and it shall be regulated b" the
rules of the preceding @ection.
Art. 1194. ,n case of loss% deterioration or improvement of
the thing before the arrival of the da" certain% the rules in article
''DE shall be observed.
Art. 1195. An"thing paid or delivered before the arrival of
the period% the obligor being unaware of the period or believing
that the obligation has become due and demandable% ma" be
recovered% with the fruits and interests.
Art. 1196. 0henever in an obligation a period is designated%
it is presumed to have been established for the benefit of both the
creditor and the debtor% unless from the tenor of the same or other
circumstances it should appear that the period has been
established in favor of one or of the other.
Art. 1197. ,f the obligation does not fi- a period% but from
its nature and the circumstances it can be inferred that a period
was intended% the courts ma" fi- the duration thereof.
The courts shall also fi- the duration of the period when it
depends upon the will of the debtor.
,n ever" case% the courts shall determine such period as ma"
under the circumstances have been probabl" contemplated b" the
parties. #nce fi-ed b" the courts% the period cannot be changed b"
them.
Art. 1198. The debtor shall lose ever" right to make use of
the period+
5'7 0hen after the obligation has been contracted% he becomes
insolvent% unless he gives a guarant" or securit" for the
debt3
567 0hen he does not furnish to the creditor the guaranties or
securities which he has promised3
587 0hen b" his own acts he has impaired said guaranties or
securities after their establishment% and when through a
fortuitous event the" disappear% unless he immediatel"
gives new ones e.uall" satisfactor"3
5=7 0hen the debtor violates an" undertaking% in consideration
of which the creditor agreed to the period3
5)7 0hen the debtor attempts to abscond.
5:8 ' term is a length o$ time which, e(erting an in$luence on an
obligation as a conse.uence o$ *uridical acts, suspends its
demandability or determines its e(tinguishment.
5:: ' term is a $uture and certain event =i.e. death>
Professor Ruben F. Balane Pa)e .-4 of +,-
800 #hen the debtor binds himsel$ to pay when his means
permit him to do so, the obligation is one with a term ='rticle 1180>.
'lthough 'rticle 1180 loo,s li,e a condition dependent on the sole will
o$ the debtor, the law treats it as a term.
801 9$ prepayment is made without the debtor being aware that
the period had not yet arrived, then the thing and the $ruits can be
recovered ='rticle 11:0>. 9$ prepayment is made and the debtor was
aware that the period had not yet arrived, then the debtor waives the
bene$it o$ the term.
80 'n obligation was entered on Eay 1, 00 between ' and @.
The obligation is to be per$ormed on 2ctober 1, 00. ' delivers on
/eptember 1, 00 by mista,e to @. ' discovers his mista,e and
tells @ to return the ob*ect and the $ruits delivered.
'rticle 11:0 does not answer who is entitled to the $ruits which
have been produced in the meantime =Eay 1, 00 to 2ctober 1,
00>.
'ccording to the /panish Code, the debtor ='> can only $ruits.
There are views<
i. The debtor is entitled to the $ruits produced in the meantime
=Tolentino>
80! This is because delivery is not re.uired until 2ctober
1.
ii. The creditor is entitled to the $ruits since the obligation is
demandable only when the period arrives
80% This is because the obligation is already e(isting
although it is not yet demandable.
800 Dro$essor @alane believes that the $ruits belong to the
debtor. #hy would 'rticle 11:0 allow the debtor to recover the
$ruits i$ he should still give them bac, a$ter the term comes.
803 9nstances when the Fruits Cannot be -ecovered
i. #hen the obligation is reciprocal and there has been
prepayment o$ both sides
ii. #hen the obligation is a loan and the debtor is bound to pay
interest
iii. #hen the period is e(clusively $or the creditors bene$it
iv. #hen the debtor is aware o$ the period and pays anyway ?
waiver
805 The presumption is that the period is $or the bene$it o$ both
the debtor and the creditor ='rticle 11:3>. The e$$ect o$ this
presumption is that the creditor cannot demand payment be$ore the
period arrives nor can the debtor demand the creditor to accept
payment be$ore the period arrives.
Example: ' issues a promissory note to @ demandable on 2ctober 10.
' cannot insist on prepayment nor can @ insist that he be paid on
/eptember.
Professor Ruben F. Balane Pa)e .-* of +,-
808 9$ the period is $or the bene$it o$ the creditor only, the
creditor can demand per$ormance at any time, but the debtor cannot
compel him to accept payment be$ore the period e(pires.
80: 9$ the period is $or the bene$it o$ the debtor only, the debtor
can he may oppose a premature demand $or payment, but may validly
pay at any time be$ore the period e(pires.
810 #hen the obligation is worded such that payment it to be
made Owithin 3 monthsP, the period is $or the bene$it o$ the debtor.
811 #hen the obligation is worded such that payment is to be
made Oon or be$oreP, the period is $or the bene$it o$ the debtor.
81 The debtor shall lose every right to ma,e use o$ the period<
i. #hen a$ter the obligation has been contracted, the debtor becomes
insolvent unless he gives a guaranty or security $or the debt ='rticle
11:8 =1>>
81! The insolvency here need not be *udicial. 9t can be
actual insolvency.
ii. #hen he does not $urnish to the creditor the guaranties or
securities which he has promised ='rticle 11:8 =>>
iii. #hen by his own acts he has impaired the said guaranties or
securities a$ter their establishment, and when through a $ortuitous
event hey disappear, unless he immediately gives new ones e.ually
satis$actory ='rticle 11:8 =!>>
iv. #hen the debtor violates any underta,ing, in consideration o$ which
the creditor agreed ='rticle 11:8 =%>>
v. #hen the debtor attempts to abscond ='rticle 11:8 =0>>
vi. #hen the creditor is deceived on the substance or .uality o$ the
thing pledged, the creditor may either claim another thing in its
stead or demand immediate payment o$ the principal obligation
='rticle 10:>
81% Types o$ Deriods
i. 1. +uspensive =ex die>
810 The period is suspensive when the obligation
becomes demandable only upon the arrival o$ the period.
. Resolutor8 (in diem>
813 The period is resolutory when the per$ormance must
terminate upon the arrival o$ the period.
ii. 1. Legal
815 ' period is legal when it is granted by law.
. >oluntar8
818 ' period is voluntary when it is stipulated by the
parties.
!. <udicial
81: ' period is *udicial when it is $i(ed by the courts.
Professor Ruben F. Balane Pa)e .-. of +,-
80 9$ the obligation does not $i( a period, but $rom its
nature and the circumstances it can be in$erred that a period
was intended, the courts may $i( the duration thereo$
='rticle 11:5, 1
st
B>.
81 steps involved in an action $or $i(ing a period<
1. The court should determine that the obligation does not
$i( a period but it can be in$erred that a period is
intended due to the circumstances 2- the period is
dependent on debtors will.
. Court shall decide what period was probably
contemplated by the parties.
8 Court should ma,e an educated guess.
8! Court should not $i( a period which it thin,s is
$air or reasonable but rather the period which was
probably contemplated by the parties.
8% 6enerally, you cannot as, $or speci$ic per$ormance
because $i(ing a period contemplates something in the
$uture, hence to as, $or speci$ic per$ormance would be
illogical.
80 9nstances #hen Court Eay Fi( a Deriod
1. 'rticle 11:5, B1
Art. 1197$ %1. ,f the obligation does not fi- a
period% but from its nature and the circumstances it
can be inferred that a period was intended% the
courts ma" fi- the duration thereof.
83 1(ceptions
0 'rticles 138 and 1385, 1
st
sentence
Art. 1682. The lease of a piece of rural
land% when its duration has not been fi-ed% is
understood to have been for all the time
necessar" for the gathering of the fruits
which the whole estate leased ma" "ield in
one "ear% or which it ma" "ield once%
although two or more "ears have to elapse
for the purpose.
Art. 1687$ 1
st
sentence. ,f the period
for the lease has not been fi-ed% it is
understood to be from "ear to "ear% if the
rent agreed upon is annual3 from month to
month% if it is monthl"3 from week to week% if
the rent is weekl"3 and from da" to da"% if
the rent is to be paid dail".
1 Pacto de retro sales ='rticle 1303>
Professor Ruben F. Balane Pa)e .-+ of +,-
Art. 1606. The right referred to in
article 'B4'% in the absence of an e-press
agreement% shall last four "ears from the
date of the contract.
@hould there be an agreement% the
period cannot e-ceed ten "ears.
9owever% the vendor ma" still e-ercise
the right to repurchase within thirt" da"s
from the time final judgment was rendered
in a civil action on the basis that the contract
was a true sale with right to repurchase.
Contract o$ services $or an inde$inite period
85 Court cannot $i( a period or else it
would amount to involuntary servitude.
. 'rticle 11:5, B
Art. 1197$ %2. The courts shall also fi- the
duration of the period when it depends upon the
will of the debtor.
!. 'rticle 11:1, B!
Art. 1191$ %3. The court shall decree the
rescission claimed% unless there be just cause
authori$ing the fi-ing of a period.
%. 'rticle 1385,
nd
, !
rd
and %
th
sentences
Art. 1687$ 2
n+
$ 3
r+
an+ 4
t"
sentences.
9owever% even though a monthl" rent is paid% and
no period for the lease has been set% the courts
ma" fi- a longer term for the lease after the lessee
has occupied the premises for over one "ear. ,f the
rent is weekl"% the courts ma" likewise determine a
longer period after the lessee has been in
possession for over si- months. ,n case of dail"
rent% the courts ma" also fi- a longer period after
the lessee has sta"ed in the place for over one
month.
0. 'rticle 1180
Art. 1180. 0hen the debtor binds himself to
pa" when his means permit him to do so% the
obligation shall be deemed to be one with a period%
subject to the provisions of Article ''EC.
iii. 1. 1(press
Professor Ruben F. Balane Pa)e .-/ of +,-
88 ' period is e(press when the period is speci$ically
stated.
. Tacit
8: ' period is tacit when a person underta,es to do
some wor, which can be done only during a particular
season.
0 1. .riginal
. :race
8!0 ' grace period is an e(tension $i(ed by the parties or
by the court.
v. 1. De!inite
8!1 ' period is de$inite when it re$ers to a $i(ed ,nown
date or time.
. Inde!inite
8! ' period is inde$inite when it re$ers to an event which
will necessarily happen but the date o$ its happening is
un,nown =i.e. death>
. According to Pluralit" of #bject ='rticles 11::4103>
Art. 1199. A person alternativel" bound b" different prestations
shall completel" perform one of them.
The creditor cannot be compelled to receive part of one and part
of the other undertaking.
Art. 1200. The right of choice belongs to the debtor% unless it
has been e-pressl" granted to the creditor.
The debtor shall have no right to choose those prestations
which are impossible% unlawful or which could not have been the
object of the obligation.
Art. 1201. The choice shall produce no effect e-cept from the
time it has been communicated.
Art. 1202. The debtor shall lose the right of choice when among
the prestations whereb" he is alternativel" bound% onl" one is
practicable.
Art. 1203. ,f through the creditor;s acts the debtor cannot
make a choice according to the terms of the obligation% the latter ma"
rescind the contract with damages.
Art. 1204. The creditor shall have a right to indemnit" for
damages when% through the fault of the debtor% all the things which
are alternativel" the object of the obligation have been lost% or the
compliance of the obligation has become impossible.
The indemnit" shall be fi-ed taking as a basis the value of the
last thing which disappeared% or that of the service which last became
impossible.
Damages other than the value of the last thing or service ma"
also be awarded.
Art. 1205. 0hen the choice has been e-pressl" given to the
creditor% the obligation shall cease to be alternative from the da"
when the selection has been communicated to the debtor.
?ntil then the responsibilit" of the debtor shall be governed b"
the following rules+
5'7 ,f one of the things is lost through a fortuitous event% he shall
perform the obligation b" delivering that which the creditor
should choose from among the remainder% or that which
remains if onl" one subsists3
567 ,f the loss of one of the things occurs through the fault of the
debtor% the creditor ma" claim an" of those subsisting% or the
price of that which% through the fault of the former% has
disappeared% with a right to damages3
587 ,f all the things are lost through the fault of the debtor% the
choice b" the creditor shall fall upon the price of an" one of
them% also with indemnit" for damages.
The same rules shall be applied to obligations to do or not to do
in case one% some or all of the prestations should become impossible.
Art. 1206. 0hen onl" one prestation has been agreed upon% but
the obligor ma" render another in substitution% the obligation is called
facultative.
The loss or deterioration of the thing intended as a substitute%
through the negligence of the obligor% does not render him liable. Gut
once the substitution has been made% the obligor is liable for the loss
of the substitute on account of his dela"% negligence or fraud.
a. Alternati(e
8!! 'n obligation is alternative when several ob*ects or
prestations are due, but the payment or per$ormance o$ 1 o$ them
would be su$$icient.
8!% ' promises to deliver either 000 ,gs o$ rice or 1000 liters o$
gas. The obligation is alternative. The debtor cannot per$orm the
obligation by giving 00 ,gs o$ rice and 000 liters o$ gas unless the
creditor agrees. 9n which case there is a novation.
8!0 General *ule+ The right o$ choice the right to belongs to the
debtor.
836 Exceptions:
i. #hen it is e(pressly granted to the creditor
ii. #hen it is agreed upon by the parties that a !
rd
person shall ma,e
the choice
8!5 The act o$ ma,ing the choice is called concentration. 2nce
the choice has been made, then the obligation is concentrated in 1
ob*ect.
8!8 #hoever has the right o$ choice must communicate it to the
other party ='rticle 101>. The creditor has to communicate his choice
to the debtor so that the debtor will ,now. 2n the other hand, in .ng
:uan vs. ;entur8 Insurance, the /upreme Court said that the purpose
$or notice to the creditor is to give the creditor the opportunity to
e(press his consent or to impugn the election made by the debtor.
Dro$essor @alane does not agree with this statement since the creditor
does not have the right to impugn, otherwise, the obligation would not
be an alternative obligation. ' better reason according to Dro$essor
@alane is to give the creditor time to prepare.
Example: The choice is either to give diamond ring or a Eercedes
@en7. The debtor should noti$y the creditor so the creditor can either
rent a sa$ety deposit bo( or prepare a garage.
Aowever, according to Dro$essor @alane, the best reason is because
once the choice is communicated, the obligation ceases to be
alternative. The ris, o$ loss belongs to the creditor now.
8!: Choice @elongs to the +ebtor
0 #hen through $ortuitous event or through the debtors acts, there is
only 1 prestation le$t, the obligation ceases to be alternative ='rticle
10>.
1 #hen the choice o$ the debtor is limited through the creditors own
acts, then the debtor has the remedy o$ resolution ='rticle 11:1>
plus damages ='rticle 10!>
#hen all the things are lost due to the debtors $ault, the creditor
can sue $or damages ='rticle 10%>
! #hen some things are lost due to the debtors $ault but there are
still some things remaining, then the debtor can choose $rom whats
le$t
% #hen all the things are lost due to a $ortuitous event, the obligation
is e(tinguished
0 #hen all but 1 o$ the things are lost due to a $ortuitous event and
the last ob*ect is lost through the debtors $ault, then the creditor
can sue $or damages
3 #hen all but 1 o$ the things are lost through the debtors own acts
and the last ob*ect is lost through a $ortuitous event, the obligation
is e(tinguished
8%0 Choice @elongs to the Creditor ='rticle 100>
0 #hen 1 or some o$ the ob*ects are lost through $ortuitous events,
then the creditor chooses $rom the remainder
1 #hen 1 or some o$ the ob*ects are lost due to the debtors $ault, the
creditor may choose $rom the remainder or get the value o$ any o$
the ob*ects lost plus damages in either case
Professor Ruben F. Balane Pa)e .-, of +,-
#hen all o$ the things are lost due to the debtors $ault, the creditor
can get the value o$ any o$ the ob*ects lost plus damages
! #hen some are lost through the debtors $ault, the creditor chooses
$rom the remainder
% #hen all the ob*ects are lost due to a $ortuitous event, then the
0 #hen all the ob*ects are lost due to the creditors $ault, the
Professor Ruben F. Balane Pa)e .-- of +,-
b. )acultati(e
0 'n obligation is $acultative when only 1 ob*ect or prestation has
been agreed upon by the parties to the obligation, but the debtor may
deliver or render another in substitution.
1 Facultative obligations bear a resemblance to alternative obligations
particularly when the choice in an alternative obligation is with the
debtor.
9n a $acultative obligation, the right o$ choice is always with the
debtor.
! 9n an alternative obligation, i$ 1 o$ the prestations is impossible,
then there are other choices. 9n a $acultative obligation, i$ the principal
obligation is impossible, then everything is annulled.
% 9n theory, it is easy to distinguish a $acultative obligation $rom an
alternative obligation. 9n practice, it is di$$icult to do so since most o$
the time, the words are ambiguous. For e(ample, 9 promise to deliver
my Aonda 'ccord, but 9 reserve my right to substitute this with my
6old -ole(. 9n this case, it is not very clear whether the obligation is
alternative or $acultative. 'ccording to Dro$essor @alane, the rule is
that one must loo, at the circumstances o$ the obligation. 9$ it is
impossible to determine which one, then the doubt should be resolved
in the $avor o$ an alternative obligation since its e$$ects are less radical.

!. According to Pluralit" of @ubject ='rticles 10541>
Art. 1207. The concurrence of two or more creditors or of two
or more debtors in one and the same obligation does not impl" that
each one of the former has a right to demand% or that each one of the
latter is bound to render% entire compliance with the prestation. There
is a solidar" liabilit" onl" when the obligation e-pressl" so states% or
when the law or the nature of the obligation re.uires solidarit".
Art. 1208. ,f from the law% or the nature or the wording of the
obligations to which the preceding article refers the contrar" does not
appear% the credit or debt shall be presumed to be divided into as
man" shares as there are creditors or debtors% the credits or debts
being considered distinct from one another% subject to the *ules of
Court governing the multiplicit" of suits.
Art. 1209. ,f the division is impossible% the right of the
creditors ma" be prejudiced onl" b" their collective acts% and the debt
can be enforced onl" b" proceeding against all the debtors. ,f one of
the latter should be insolvent% the others shall not be liable for his
share.
Art. 1210. The indivisibilit" of an obligation does not
necessaril" give rise to solidarit". 2or does solidarit" of itself impl"
indivisibilit".
Art. 1211. @olidarit" ma" e-ist although the creditors and the
debtors ma" not be bound in the same manner and b" the same
periods and conditions.
Art. 1212. :ach one of the solidar" creditors ma" do whatever
ma" be useful to the others% but not an"thing which ma" be prejudicial
to the latter.
Art. 1213. A solidar" creditor cannot assign his rights without
the consent of the others.
Art. 1214. The debtor ma" pa" an" one of the solidar"
creditors3 but if an" demand% judicial or e-trajudicial% has been made
b" one of them% pa"ment should be made to him.
Art. 1215. 2ovation% compensation% confusion or remission of
the debt% made b" an" of the solidar" creditors or with an" of the
solidar" debtors% shall e-tinguish the obligation% without prejudice to
the provisions of article '6'E.
The creditor who ma" have e-ecuted an" of these acts% as well
as he who collects the debt% shall be liable to the others for the share
in the obligation corresponding to them.
Art. 1216. The creditor ma" proceed against an" one of the
solidar" debtors or some or all of them simultaneousl". The demand
made against one of them shall not be an obstacle to those which ma"
subse.uentl" be directed against the others% so long as the debt has
not been full" collected.
Art. 1217. Pa"ment made b" one of the solidar" debtors
e-tinguishes the obligation. ,f two or more solidar" debtors offer to
pa"% the creditor ma" choose which offer to accept.
9e who made the pa"ment ma" claim from his co/debtors onl"
the share which corresponds to each% with the interest for the
pa"ment alread" made. ,f the pa"ment is made before the debt is due%
no interest for the intervening period ma" be demanded.
0hen one of the solidar" debtors cannot% because of his
insolvenc"% reimburse his share to the debtor pa"ing the obligation%
such share shall be borne b" all his co/debtors% in proportion to the
debt of each.
Art. 1218. Pa"ment b" a solidar" debtor shall not entitle him to
reimbursement from his co/debtors if such pa"ment is made after the
obligation has prescribed or become illegal.
Art. 1219. The remission made b" the creditor of the share
which affects one of the solidar" debtors does not release the latter
from his responsibilit" towards the co/debtors% in case the debt had
been totall" paid b" an"one of them before the remission was
effected.
Art. 1220. The remission of the whole obligation% obtained b"
one of the solidar" debtors% does not entitle him to reimbursement
from his co/debtors.
Art. 1221. ,f the thing has been lost or if the prestation has
become impossible without the fault of the solidar" debtors% the
obligation shall be e-tinguished.
,f there was fault on the part of an" one of them% all shall be
responsible to the creditor% for the price and the pa"ment of damages
and interest% without prejudice to their action against the guilt" or
negligent debtor.
,f through a fortuitous event% the thing is lost or the
performance has become impossible after one of the solidar" debtors
has incurred in dela" through the judicial or e-trajudicial demand
upon him b" the creditor% the provisions of the preceding paragraph
shall appl".
Art. 1222. A solidar" debtor ma"% in actions filed b" the
creditor% avail himself of all defenses which are derived from the
nature of the obligation and of those which are personal to him% or
pertain to his own share. 0ith respect to those which personall"
belong to the others% he ma" avail himself thereof onl" as regards that
part of the debt for which the latter are responsible.
a. 5in/le
0 'n obligation is single when there is only 1 debtor and 1 creditor.
b. Aoint
0 'n obligation is *oint when each o$ the debtor is liable only $or a
proportional part o$ the debt, and each creditor is entitled only to a
partial part o$ the credit.
1 ' *oint obligation is also called mancomunada, pro rata,
mancomunada simple.
General *ule+ The obligation is *oint since *oint obligations are
less onerous.
3 Exceptions:
i. 'greement o$ the parties
ii. ;aw =i.e. tort $easors are solidarily liable>
iii. Nature o$ the obligation
0 'ccording to many commentators, this is super$luous since a
solidary obligation arises because o$ law.
1 E++E,7IAL ,A7ERE: There are as many obligations as there are
creditors multiplied by as many debtors.
Types o$ Moint 2bligations
i. Active "oint
0 9n active *oint, there are multiple creditors.
1 ', @, and C are creditors, and T is the debtor. 9$ the
obligation is *oint, there are ! obligations ? Ts obligation to ',
Ts obligation to @, and Ts obligation to C.
The demand o$ 1 creditor on 1 debtor will not constitute a
demand on the others.
! The prescription o$ 1 o$ the debts will not a$$ect the other
debts.
ii. Passive "oint
0 9n passive *oint, there are multiple debtors.
1 T, H, and S are debtor, and ' is the creditor. 9$ the
obligation is *oint, there are ! obligations ? Ts obligation to ',
Hs obligation to ', and Ss obligation to '.
The demand o$ 1 creditor on 1 debtor will not constitute a
demand on the others.
! The prescription o$ 1 o$ the debts will not a$$ect the other
debts.
% The insolvency o$ 1 o$ the debtors will not a$$ect the burden
o$ the other debtors.
iii. 9ixed "oint
0 9n mi(ed *oint, there are multiple creditors and debtors.
1 T, H, and S are debtors, and ', @, and C are the creditors. 9$
the obligation is *oint, there are : obligations ? Ts obligation to
', Ts obligation to @, Ts obligation to C, Hs obligation ', Hs
obligation to @, Hs obligation to C, Ss obligation to ', Ss
obligation to @, and Ss obligation to C.
c. 5oli+ar!
0 'n obligation is solidary when any o$ the debtors can be hled liable
$or the entire obligation, and any o$ the creditors is entitled to demand
the entire obligation.
1 ' solidary obligation is also called *oint and several, *oint and
individual, and in solidum.
9$ a promissory says, O9 promise to pay,P and it is signed by I, @,
and E, then the obligation is solidary.
! 'n obligation is solidary when
i. The parties so agree
ii. #hen the law so provides =i.e. tort $easors are solidarily liable>
iii. #hen nature o$ the obligation re.uires the obligation to be solidary
0 'ccording to many commentators, this is super$luous since a
solidary obligation arises because o$ law.
1 Types o$ /olidary 2bligations
i. Active solidar8
0 9n active solidary, there are multiple creditors.
1 Characteristics o$ 'ctive /olidary
' credit once paid is shared e.ually among the
creditors unless a di$$erent intention appears.
0 The debtor may pay any o$ the creditors, but i$ any
demand, *udicial or e(tra*udicial is made on him, he must
pay only to the one demanding payment ='rticle 11%>.
1 'rticle 11% can be open to abuse. For
e(ample, i$ ' writes H demanding the per$ormance o$
the obligation and ' ta,es no $urther action, @ and C
cannot demand $rom H. This is open to collusion.
/uppose ', @, and C are creditors o$ T. '
demands the payment o$ the loan worth D:,000. T
instead pays to @. The payment to @ will be treated
as a payment to a !
rd
person. There$ore, T must still
pay ' the amount o$ the loan minus the share o$ @.
/o, T has to pay D3,000 to '.
ii. Passive solidar8
9n passive solidary, there are multiple debtors.
Characteristics o$ Dassive /olidary
1ach debtor may be re.uired to pay the entire obligation but
a$ter payment, he can recover $rom his co4debtors their
respective shares.
iii. 9ixed solidar8
0 9n mi(ed solidary, there are multiple debtors and creditors.
1 Characteristics o$ Ei(ed /olidary
0 ' credit once paid is shared e.ually among the
creditors unless a di$$erent intention appears.
1 The debtor may pay any o$ the creditors, but i$ any
demand, *udicial or e(tra*udicial, is made on him, he must
pay only to the one demanding payment ='rticle 11%>.
'ccording to Dro$essor @alane, 'rticle 11% is
problematic. For e(ample, T owes ', @ and C. @ ma,es
an e(tra*udicial demand on T. T cannot pay ' or C
anymore. The problem is when @ does not $ollow up the
demand, it can ,eep the obligation in suspension
inde$initely.
The rule in the /panish Code was that the debtor cannot
pay the other non4demanding solidary creditors only i$
one o$ the solidary creditor ma,es a *udicial demand.
0 /uppose the debtor upon whom the demand is made
pays a creditor who did not ma,e a demand. The
payment is considered a payment to a third person.
There$ore the debtor can still be made to pay by the one
who made the demand on him.
Example: T owes ' and @. @ demanded $rom T. T pays
'. T must still pay @ D3000.
@ut the payment to the demanding creditor can be
reduced by the share o$ the paid creditor.
The debtor can still recover $rom the paid creditor =un*ust
enrichment>.
0 /uppose ' and @ are creditors while T and H are
debtors. ' demands $rom H. Now, T pays @. The
payment o$ T to @ e(tinguishes the entire solidary
obligation. T is not bound by the demand by ' on H.
There is no violation o$ 'rticle 11%.
1 1ach debtor may be re.uired to pay the entire
obligation but a$ter payment, he can recover $rom his co4
debtors their respective shares.
2 9s there a con$lict between 'rticle 11 and 'rticle 110
) 'rticle
11 provides that each o$ the solidary creditors may do whatever may
be use$ul to the others, but not anything which may be pre*udicial to
the latter. @ut 'rticle 110 allows novation, compensation, con$usion
or remission on the part o$ the solidary creditor. #hy) 'ccording to
Dro$essor @alane, this is absurd.
2ne way o$ reconciling is that under 'rticle 110, any creditor can
remit or condone the obligation. @ut because the obligation is
e(tinguished, the condoning creditor must be liable $or the other
creditors share. Aere, there is no pre*udice.
Aowever, another problem arises i$ the condoning creditor later on
becomes insolvent.
Art. 1219. The remission made b" the creditor of the share
which affects one of the solidar" debtors does not release the
latter from his responsibilit" towards the co/debtors% in case the
debt had been totall" paid b" an"one of them before the
remission was effected.
' is the creditor o$ #, T, H, and S. #, T, H, and S owe ' D3,000. The
obligation is solidary. ' remits Hs share ? D1,000. ' can go a$ter T $or
only D%,000. The remission bene$its T initially since T only has to pay
D%,000 instead o$ 3,000. Aowever, T can only recover D!,000 $rom #
and S.
_
Art. )%)%. 1ach one o$ the solidary creditors may do whatever may be use$ul to the others,
but not anything which may be pre*udicial to the latter.
Art. )%)$. Novation, compensation, con$usion or remission o$ the debt, made by any
o$ the solidary creditors or with any o$ the solidary debtors, shall e(tinguish the obligation, without
pre*udice to the provisions o$ article 11:.
The creditor who may have e(ecuted any o$ these acts, as well as he who collects the debt, shall
be liable to the others $or the share in the obligation corresponding to them. 'rt. 110.
Novation, compensation, con$usion or remission o$ the debt, made by any o$ the solidary
creditors or with any o$ the solidary debtors, shall e(tinguish the obligation, without pre*udice to
the provisions o$ article 11:.
The creditor who may have e(ecuted any o$ these acts, as well as he who collects the debt,
shall be liable to the others $or the share in the obligation corresponding to them.
obligation is solidary. ' remits Hs share ? D1,000. ' can go a$ter H $or
the balance since H is still a solidary debtor $or the balance. 2therwise,
the e$$ect o$ remission would be e(tended. Aowever, H can recover
D%,000 $rom #, T, and S.
obligation is solidary. ' remits Hs share ? D1,000. S becomes
insolvent. ' sues # $or the balance o$ D%,000. 'rt. 115 must be
applied. Thus, the insolvency o$ S is shouldered by #, T, and H. /o, #
can recover D,000 $rom T and D000 $rom H instead o$ collecting
D!,000. # has to shoulder D000 as a loss due to Ss insolvency.
! Iinds o$ +e$enses
i. -eal de$enses
0 These are de$enses derived $rom the nature o$ the
obligation.
1 ' real de$ense is a total de$ense. 9t bene$its all the debtors.
ii. Dersonal de$enses
0 Dersonal de$enses may either be total or partial de$enses.
1 'n e(ample o$ a total personal de$ense is i$ the consent o$
the debtors were all vitiated.
'n e(ample o$ a partial de$ense is that a certain amount is
not yet due. 9t is partial since there may be amounts which are
already due. Thus, the debtor has to pay $or those amounts
which are due.
iii. +e$enses which are personal to the other co4debtors
0 The debtor can only avail himsel$ o$ these de$enses only with
regard to the part o$ the debt which his co4debtors are
responsible $or.
1 These de$enses are partial.
The debtor sued can invo,e all three ,inds o$ de$enses. The
di$$erence is whether such de$ense would result in total or partial
e(culpation.
! According to Performance ='rticles 1!410>
Art. 1223. The divisibilit" or indivisibilit" of the things that are
the object of obligations in which there is onl" one debtor and onl"
one creditor does not alter or modif" the provisions of Chapter 6 of
this Title.
Art. 1224. A joint indivisible obligation gives rise to indemnit"
for damages from the time an"one of the debtors does not compl"
with his undertaking. The debtors who ma" have been read" to fulfill
their promises shall not contribute to the indemnit" be"ond the
corresponding portion of the price of the thing or of the value of the
service in which the obligation consists.
Art. 1225. Aor the purposes of the preceding articles%
obligations to give definite things and those which are not susceptible
of partial performance shall be deemed to be indivisible.
0hen the obligation has for its object the e-ecution of a certain
number of da"s of work% the accomplishment of work b" metrical
units% or analogous things which b" their nature are susceptible of
partial performance% it shall be divisible.
9owever% even though the object or service ma" be ph"sicall"
divisible% an obligation is indivisible if so provided b" law or intended
b" the parties.
,n obligations not to do% divisibilit" or indivisibilit" shall be
determined b" the character of the prestation in each particular case.
+ivisible and indivisible obligations have nothing to do with the ob*ect o$
the prestation. ' common misconception is i$ the ob*ect o$ the prestation
is divisible, then the obligation is also divisible.
a. +ivisible
0 'n obligation is divisible when it is susceptible to partial
per$ormance.
b. 9ndivisible
0 'n obligation is indivisible when it cannot be validly per$ormed in
parts.
1 General *ule+ 2bligations are indivisible.
2 Exceptions:
0 #hen the parties provide otherwise ='rticles 10, !
rd
B, 1%8
>
1 #hen the nature o$ the obligation necessarily entails the
per$ormance o$ the obligation in parts
Example: Airing a security guard to guard $rom 8pm to am daily
$or 3 months. This obligation cannot be per$ormed indivisibly. Hou
cant compress time.
#hen the obligation has $or its ob*ect the e(ecution o$ a certain
number o$ days o$ wor,, the accomplishment o$ wor, by metrical
units, or analogous things, which by their nature are susceptible o$
partial per$ormance, it shall be divisible ='rticle 10,
nd
B>
Exception to t"e Exception: Aowever, even though the ob*ect or
service may be physically divisible, an obligation is indivisible i$
1. /o provided by law& or
. 9ntended by the parties.
Art. )%*/. "nless there is an e(press stipulation to that e$$ect, the creditor cannot be compelled
partially to receive the prestations in which the obligation consists. Neither may the debtor be
re.uired to ma,e partial payments.
Aowever, when the debt is in part li.uidated and in part unli.uidated, the creditor may
demand and the debtor may e$$ect the payment o$ the $ormer without waiting $or the li.uidation o$
the latter.
iii. #hen the law provides otherwise
There are provisions on payment which provide that per$ormance
may be divisible.
+ivisibility o$ the ob*ect does not mean that the obligation is also divisible.
@ut indivisibility o$ the ob*ect necessarily means an indivisible obligation.
The test o$ divisibility o$ an obligation is whether or not it is susceptible o$
partial per$ormance.
For e(ample, i$ T is supposed to deliver 1000 ,ilos o$ sugar, this does
not mean that T can deliver the sugar in installments.
% According to @anction for Greach ='rticles 1341!0>
Art. 1226. ,n obligations with a penal clause% the penalt" shall
substitute the indemnit" for damages and the pa"ment of interests in
case of noncompliance% if there is no stipulation to the contrar".
2evertheless% damages shall be paid if the obligor refuses to pa" the
penalt" or is guilt" of fraud in the fulfillment of the obligation.
The penalt" ma" be enforced onl" when it is demandable in
accordance with the provisions of this Code.
Art. 1227. The debtor cannot e-empt himself from the
performance of the obligation b" pa"ing the penalt"% save in the case
where this right has been e-pressl" reserved for him. 2either can the
creditor demand the fulfillment of the obligation and the satisfaction
of the penalt" at the same time% unless this right has been clearl"
granted him. 9owever% if after the creditor has decided to re.uire the
fulfillment of the obligation% the performance thereof should become
impossible without his fault% the penalt" ma" be enforced.
Art. 1228. Proof of actual damages suffered b" the creditor is
not necessar" in order that the penalt" ma" be demanded.
Art. 1229. The judge shall e.uitabl" reduce the penalt" when
the principal obligation has been partl" or irregularl" complied with b"
the debtor. :ven if there has been no performance% the penalt" ma"
also be reduced b" the courts if it is ini.uitous or unconscionable.
Art. 1230. The nullit" of the penal clause does not carr" with it
that of the principal obligation.
The nullit" of the principal obligation carries with it that of the
penal clause.
0 #o penal clause
1 9it" penal clause
0 ' penal clause is an accessory underta,ing to assume greater
liability in case o$ breach (+++ vs. 9oon4al6).
1 Denal clauses are governed by 'rticles 348
, the provisions
on li.uidated damages since a penal clause is the same as li.uidated
damages (Lam5ert vs. ?ox).
0 Denal clauses may be reduced by the courts i$ unconscionable.
1 Functions o$ a Denal Clause =+++ vs. 9oon4al6>
i. To provide li.uidated damages
0 The creditor can demand li.uidated damages without having
to prove actual damages.
1 The only limitation that the courts will reduce the li.uidated
damages i$ the same is scandalously unconscionable.
ii. To strengthen the coercive $orce o$ the obligation by the threat o$
greater responsibility in case o$ breach
0 /tipulates a penalty which is greater than one without a
penal clause. Thus, Ro5esB?rancisco states that %N interest is
not a penal clause.
Characteristics o$ a Denal Clause
i. /ubsidiary or alternative ='rticle 15>
General *ule+ "pon breach o$ the obligation, the creditor
has to choose whether to demand the principal or the penalty.
! Exception: The principal obligation and the penalty can be
demanded when the penal clause is *oint or cumulative. This
occurs when it is the creditor has been clearly granted such
right ='rticle 15,
nd
sentence>, either e(pressly or impliedly.
The implied right must be one ascertainable $rom the nature o$
the obligation. 'n e(ample is in the construction industry where
the contractor must pay the penalty i$ the wor, is completed
a$ter the stipulated time $rame but must also $inish the agreed
construction.
ii. 1(clusive ='rticle 13>
% General *ule+ The penalty clause ta,es the place o$ other
damages =thats why in imposing a penalty clause, ma,e sure
that the penalty is sti$$>.
0 Exception: @oth the penalty and actual damages may be
recovered in the $ollowing<
1. 1(press stipulation
. -e$usal by the debtor to pay the penalty
`
Art. %%%&. ;i.uidated damages are those agreed upon by the parties to a contract, to be paid in
case o$ breach thereo$.
Art. %%%1. ;i.uidated damages, whether intended as an indemnity or a penalty, shall be
e.uitably reduced i$ they are ini.uitous or unconscionable.
Art. %%%/. #hen the breach o$ the contract committed by the de$endant is not the one
contemplated by the parties in agreeing upon the li.uidated damages, the law shall determine the
measure o$ damages, and not the stipulation.
!. The debtor is guilty o$ $raud =malice> in the per$ormance o$
the obligation.
3 9n Pamintuan vs. ;A the /upreme Court said that the
e(cess o$ damages absorbs the penalty. Dro$essor
@alane said that this is a wrong application. Hou can
demand both the e(cess and the penalty.
5
9. Extin/uis"ent o. ,'li/ations
Art. 1231. #bligations are e-tinguished+
5'7 G" pa"ment or performance+
567 G" the loss of the thing due+
587 G" the condonation or remission of the debt3
5=7 G" the confusion or merger of the rights of creditor and debtor3
5)7 G" compensation3
5B7 G" novation.
#ther causes of e-tinguishment of obligations% such as annulment%
rescission% fulfillment of a resolutor" condition% and prescription% are
governed elsewhere in this Code.
0 Pa"ment or Performance ='rticles 1! ? 101>
Art. 1232. Pa"ment means not onl" the deliver" of mone" but
also the performance% in an" other manner% of an obligation.
Art. 1233. A debt shall not be understood to have been paid
unless the thing or service in which the obligation consists has been
completel" delivered or rendered% as the case ma" be.
Art. 1234. ,f the obligation has been substantiall" performed in
good faith% the obligor ma" recover as though there had been a strict
and complete fulfillment% less damages suffered b" the obligee.
Art. 1235. 0hen the obligee accepts the performance% knowing
its incompleteness or irregularit"% and without e-pressing an" protest
or objection% the obligation is deemed full" complied with.
Art. 1236. The creditor is not bound to accept pa"ment or
performance b" a third person who has no interest in the fulfillment of
the obligation% unless there is a stipulation to the contrar".
0hoever pa"s for another ma" demand from the debtor what he
has paid% e-cept that if he paid without the knowledge or against the
will of the debtor% he can recover onl" insofar as the pa"ment has
been beneficial to the debtor.
Art. 1237. 0hoever pa"s on behalf of the debtor without the
knowledge or against the will of the latter% cannot compel the creditor
to subrogate him in his rights% such as those arising from a mortgage%
guarant"% or penalt".
Art. 1238. Pa"ment made b" a third person who does not
intend to be reimbursed b" the debtor is deemed to be a donation%
which re.uires the debtor;s consent. Gut the pa"ment is in an" case
valid as to the creditor who has accepted it.
Art. 1239. ,n obligations to give% pa"ment made b" one who
does not have the free disposal of the thing due and capacit" to
alienate it shall not be valid% without prejudice to the provisions of
article '=6C under the Title on I2atural #bligations.I
Art. 1240. Pa"ment shall be made to the person in whose favor
the obligation has been constituted% or his successor in interest% or
an" person authori$ed to receive it.
Art. 1241. Pa"ment to a person who is incapacitated to
administer his propert" shall be valid if he has kept the thing
delivered% or insofar as the pa"ment has been beneficial to him.
Pa"ment made to a third person shall also be valid insofar as it
has redounded to the benefit of the creditor. @uch benefit to the
creditor need not be proved in the following cases+
5'7 ,f after the pa"ment% the third person ac.uires the creditor;s
rights3
567 ,f the creditor ratifies the pa"ment to the third person3
587 ,f b" the creditor;s conduct% the debtor has been led to believe
that the third person had authorit" to receive the pa"ment.
Art. 1242. Pa"ment made in good faith to an" person in
possession of the credit shall release the debtor.
Art. 1243. Pa"ment made to the creditor b" the debtor after the
latter has been judiciall" ordered to retain the debt shall not be valid.
Art. 1244. The debtor of a thing cannot compel the creditor to
receive a different one% although the latter ma" be of the same value
as% or more valuable than that which is due.
,n obligations to do or not to do% an act or forbearance cannot
be substituted b" another act or forbearance against the obligee;s will.
Art. 1245. Dation in pa"ment% whereb" propert" is alienated to
the creditor in satisfaction of a debt in mone"% shall be governed b"
the law of sales.
Art. 1246. 0hen the obligation consists in the deliver" of an
indeterminate or generic thing% whose .ualit" and circumstances have
not been stated% the creditor cannot demand a thing of superior
.ualit". 2either can the debtor deliver a thing of inferior .ualit". The
purpose of the obligation and other circumstances shall be taken into
consideration.
Art. 1247. ?nless it is otherwise stipulated% the e-trajudicial
e-penses re.uired b" the pa"ment shall be for the account of the
debtor. 0ith regard to judicial costs% the *ules of Court shall govern.
Art. 1248. ?nless there is an e-press stipulation to that effect%
the creditor cannot be compelled partiall" to receive the prestations in
Professor Ruben F. Balane Pa)e +4* of +,-
which the obligation consists. 2either ma" the debtor be re.uired to
make partial pa"ments.
9owever% when the debt is in part li.uidated and in part
unli.uidated% the creditor ma" demand and the debtor ma" effect the
pa"ment of the former without waiting for the li.uidation of the latter.
Art. 1249. The pa"ment of debts in mone" shall be made in the
currenc" stipulated% and if it is not possible to deliver such currenc"%
then in the currenc" which is legal tender in the Philippines.
The deliver" of promissor" notes pa"able to order% or bills of
e-change or other mercantile documents shall produce the effect of
pa"ment onl" when the" have been cashed% or when through the fault
of the creditor the" have been impaired.
,n the meantime% the action derived from the original obligation
shall be held in the abe"ance.
Art. 1250. ,n case an e-traordinar" inflation or deflation of the
currenc" stipulated should supervene% the value of the currenc" at the
time of the establishment of the obligation shall be the basis of
pa"ment% unless there is an agreement to the contrar".
Art. 1251. Pa"ment shall be made in the place designated in
the obligation.
There being no e-press stipulation and if the undertaking is to
deliver a determinate thing% the pa"ment shall be made wherever the
thing might be at the moment the obligation was constituted.
,n an" other case the place of pa"ment shall be the domicile of
the debtor.
,f the debtor changes his domicile in bad faith or after he has
incurred in dela"% the additional e-penses shall be borne b" him.
These provisions are without prejudice to venue under the
*ules of Court.
8 ;i,e obligee and creditor, payment and per$ormance are twin terms.
Dayment re$ers to obligations to give while per$ormance re$ers to
obligations to do.
: Dayment and per$ormance is the paradigmatic mode. #hen
obligations are entered into, the parties e(pect payment or per$ormance.
'll other modes o$ e(tinguishing obligations are abnormal modes.
10 -e.uisites o$ Dayment
a. As to prestation
i. Identit8
11 9dentity means that the very prestation must be per$ormed.
1 For e(ample, i$ the obligation is to give a car, one cannot
$ul$ill the obligation pay giving a house.
Professor Ruben F. Balane Pa)e +4. of +,-
13 9$ the prestation is speci$ic, the debtor must give or deliver
the speci$ic thing which was agreed upon ='rticle 1%%
>.
14 9$ the prestation is generic, the creditor cannot demand a
thing o$ superior .uality. Aowever, the debtor cannot give a
thing o$ in$erior .uality ='rticle 1%3
>.
15 The payment o$ debts in money shall be made in the
currency stipulated, and i$ it not possible to deliver such
currency, then in the currency which is legal tender in the
Dhilippines ='rticle 1%:
, 1
st
B>.
-.'. No. 0: has been repealed by -.'. No. 818! which allows
payment in di$$erent currency. Aowever, in the absence o$ an
agreement, payment shall be made in D.
13 Negotiable papers and other commercial documents can be
re$used by the creditor unless there is stipulation to the
contrary.
17 9$ the negotiable papers and other commercial documents
are accepted by the creditor, it has only a provisional e$$ect.
There is payment only in the $ollowing ='rticle 1%:
,
nd
B>.
0 #hen they have been honored and cashed& or
1 #hen through the $ault o$ the creditor, they have
been impaired
9n the case o$ ,A9AR;. the chec, must be the chec, o$
another person, not a party, be$ore there will be impairment.
For e(ample, ' gave @ a chec, as payment $or a loan. @ did not
encash the chec, as a result o$ which, the chec, became stale.
There is no impairment here. @ can still as, ' $or payment o$
the loan.
Aowever, i$ @ endorsed a chec, made by ' to C as payment $or
a loan and C did not encash the chec, which became stale, then
C can no longer as, @ to pay him again.
`
Art. )%**. The debtor o$ a thing cannot compel the creditor to receive a di$$erent one, although
the latter may be o$ the same value as, or more valuable than that which is due.
9n obligations to do or not to do, an act or $orbearance cannot be substituted by another
act or $orbearance against the obligeeGs will.
Art. )%*&. #hen the obligation consists in the delivery o$ an indeterminate or generic thing,
whose .uality and circumstances have not been stated, the creditor cannot demand a thing o$
superior .uality. Neither can the debtor deliver a thing o$ in$erior .uality. The purpose o$ the
obligation and other circumstances shall be ta,en into consideration.
Art. )%*2. The payment o$ debts in money shall be made in the currency stipulated, and i$ it is
not possible to deliver such currency, then in the currency which is legal tender in the Dhilippines.
The delivery o$ promissory notes payable to order, or bills o$ e(change or other mercantile
documents shall produce the e$$ect o$ payment only when they have been cashed, or when through
the $ault o$ the creditor they have been impaired.
9n the meantime, the action derived $rom the original obligation shall be held in the
abeyance.
Professor Ruben F. Balane Pa)e +4+ of +,-
18 9n the case o$ Paci!ic 7im5er the /upreme Court said that a
certi$ied chec, or a managers chec, is considered as good as
cash. @ut newer cases say that such instruments are not
considered legal tender and thus, the creditor can re$use to
accept. For e(ample, ' gives @ a managers chec, and ban,
closes $or a ban, holiday.
19 'rticle 100
C
was applied only during the Mapanese
occupation.
0 1(ceptions to the -e.uirement o$ 9dentity
1. Dacion en pago ='rticle 1%0>
Art. 1245. Dation in pa"ment% whereb"
propert" is alienated to the creditor in satisfaction of a
debt in mone"% shall be governed b" the law of sales.
1 Novation
ii. Integrit8
21 9dentity means that the entire prestation must be per$ormed
? completeness ='rticle 1!!
>
1(ceptions to 9ntegrity
0 /ubstantial compliance in good $aith ='rticle 1!%>
Art. 1234. ,f the obligation has been
substantiall" performed in good faith% the obligor ma"
recover as though there had been a strict and
complete fulfillment% less damages suffered b" the
obligee.
1 #aiver ='rticle 1!0>
Art. 1235. 0hen the obligee accepts the
performance% knowing its incompleteness or
irregularit"% and without e-pressing an" protest or
objection% the obligation is deemed full" complied
with.
9n application o$ payments i$ the debts are e.ually
onerous ='rticle 10%,
nd
B>
Art. 1254$ 2
n+
%. ,f the debts due are of the
same nature and burden% the pa"ment shall be applied
to all of them proportionatel".
*
Art. )%$0. 9n case an e(traordinary in$lation or de$lation o$ the currency stipulated should
supervene, the value o$ the currency at the time o$ the establishment o$ the obligation shall be the
basis o$ payment, unless there is an agreement to the contrary.
_
Art. )%((. ' debt shall not be understood to have been paid unless the thing or service in which
the obligation consists has been completely delivered or rendered, as the case may be.
Professor Ruben F. Balane Pa)e +4/ of +,-
iii. 9ndivisibility
! 9ndivisibility means that the obligor must per$orm the
prestation in one act and not in installments ='rticle 1%8>. The
creditor can validly re$use i$ the per$ormance is not in one act.
% 1(ceptions to 9ndivisibility =Cases when the law allows
installment per$ormance>
1. 9n case o$ e(press stipulation ='rticle 1%8>
Art. 1248. ?nless there is an e-press
stipulation to that effect% the creditor cannot be
compelled partiall" to receive the prestations in which
the obligation consists. 2either ma" the debtor be
re.uired to make partial pa"ments.
9owever% when the debt is in part li.uidated
and in part unli.uidated% the creditor ma" demand and
the debtor ma" effect the pa"ment of the former
without waiting for the li.uidation of the latter.
. 9n prestations which necessarily entail partial per$ormance
='rticle 10,
nd
B>
Art. 1225$ 2
n+
%. 0hen the obligation has for its
object the e-ecution of a certain number of da"s of
work% the accomplishment of work b" metrical units%
or analogous things which b" their nature are
susceptible of partial performance% it shall be divisible.
!. 9$ the debt is li.uidated in part and unli.uidated in part
='rticle 1%8>
Art. 1248. ?nless there is an e-press
stipulation to that effect% the creditor cannot be
compelled partiall" to receive the prestations in which
the obligation consists. 2either ma" the debtor be
re.uired to make partial pa"ments.
9owever% when the debt is in part li.uidated
and in part unli.uidated% the creditor ma" demand and
the debtor ma" effect the pa"ment of the former
without waiting for the li.uidation of the latter.
! 9n *oint divisible obligations ='rticle 108>
Art. 1208. ,f from the law% or the nature or the
wording of the obligations to which the preceding
article refers the contrar" does not appear% the credit
or debt shall be presumed to be divided into as man"
shares as there are creditors or debtors% the credits or
debts being considered distinct from one another%
subject to the *ules of Court governing the multiplicit"
of suits.
% 9n solidary obligations when the debtors are bound
under di$$erent terms and conditions ='rticle 111>
Art. 1211. @olidarit" ma" e-ist although the
creditors and the debtors ma" not be bound in the
same manner and b" the same periods and conditions.
0 9n compensation where there is a balance le$t ='rticle
1:0>
Art. 1290. 0hen all the re.uisites mentioned in
article '6CE are present% compensation takes effect b"
operation of law% and e-tinguishes both debts to the
concurrent amount% even though the creditors and
debtors are not aware of the compensation.
3 9$ the wor, is to be delivered partially, the price or
compensation $or each part having been $i(ed ='rticle 150>
Art. 1720. The price or compensation shall be
paid at the time and place of deliver" of the work%
unless there is a stipulation to the contrar". ,f the
work is to be delivered partiall"% the price or
compensation for each part having been fi-ed% the
sum shall be paid at the time and place of deliver"% in
the absence if stipulation.
5 9n case o$ several guarantors who demand the right
o$ division ='rticle 030>
Art. 2065. @hould there be several guarantors
of onl" one debtor and for the same debt% the
obligation to answer for the same is divided among all.
The creditor cannot claim from the guarantors e-cept
the shares which the" are respectivel" bound to pa"%
unless solidarit" has been e-pressl" stipulated.
The benefit of division against the co/
guarantors ceases in the same cases and for the same
reasons as the benefit of e-cussion against the
principal debtor.
8 9n case o$ impossibility or e(treme di$$icult o$ a single
per$ormance
0 For e(ample, ' is obligated to deliver 1 million bags
o$ cement. "nder the circumstances, this may be
e(tremely di$$icult.
b. As to t"e parties
i. Pa8or .5ligor De5tor
3 #ho may be the Dayor
1. #ithout the consent o$ the creditor
a. The debtor himsel$
b. The debtors heirs or assigns
c. The debtors agent
d. 'nyone interested in the $ul$illment o$ the obligation =e.g.
guarantor>
. #ith the consent o$ the creditor
5 'nyone can pay i$ the creditor consents
8 1$$ect o$ Dayment by a !
rd
Derson
1. Dayment was with the +ebtors Consent
29 General *ule+ The payor steps into the shoes o$ the
creditor and becomes entitled not only to recover what
he has paid, but also to e(ercise all the rights which the
creditor could have e(ercised ? subrogation ='rticles
1!3, 1!5
>.
!0 There is no e(tinguishment o$ the obligation
but a change in the active sub*ect.
31 Exception: No subrogation i$ intended to be a
donation ='rticle 1!8
>.
. Dayment was without the +ebtors Consent
32 The !
rd
person may demand repayment to the e(tent
that the debtor has bene$ited ='rticle 1!3,
nd
B
>.
ii. Pa8ee .5ligee ;reditor
!! #ho may be the Dayee
1. The creditor himsel$ ='rticles 1%0, 133
>
. The creditors successor or trans$eree ='rticle 1%0>
!. The creditors agent ='rticle 1%0>
%. 'ny third person sub*ect to the $ollowing conditions<
_
Art. )%(&. The creditor is not bound to accept payment or per$ormance by a third person who
has no interest in the $ul$illment o$ the obligation, unless there is a stipulation to the contrary.
#hoever pays $or another may demand $rom the debtor what he has paid, e(cept that i$ he
paid without the ,nowledge or against the will o$ the debtor, he can recover only inso$ar as the
payment has been bene$icial to the debtor.
Art. )%(1. #hoever pays on behal$ o$ the debtor without the ,nowledge or against the will
o$ the latter, cannot compel the creditor to subrogate him in his rights, such as those arising $rom
a mortgage, guaranty, or penalty.
_
Art. )%(/. Dayment made by a third person who does not intend to be reimbursed by the debtor
is deemed to be a donation, which re.uires the debtorGs consent. @ut the payment is in any case
valid as to the creditor who has accepted it.
_
Art. )%*0. Dayment shall be made to the person in whose $avor the obligation has been
constituted, or his successor in interest, or any person authori7ed to receive it.
Art. )&%&. The debtor who, be$ore having ,nowledge o$ the assignment, pays his creditor
shall be released $rom the obligation.
Professor Ruben F. Balane Pa)e +4, of +,-
a. Drovided it redounded to the creditors bene$it and only
to the e(tent o$ such bene$it ='rticle 1%1
,
nd
par>
b. 9$ it $alls under 'rticle 1%1 B =1>, => and =!>, the
bene$it is total.
0. 'nyone in possession o$ the credit ='rticle 1%
>
0 9n all these 0 instances, it is re.uired that the debt
should not be garnished ='rticle 1%>. 9$ there is payment
despite garnishment, then there is no payment.
c. As to t"e tie an+ place o. per.orance
i. I#en Pa8ment +#ould 5e 9ade
0 Dayment should be made when it is due.
1 1ven i$ the payment is due, the General *ule is that
demand is still necessary.
2 'rticle 113:
provides the instances when demand is not

necessary
0 #hen the obligation or the law e(pressly so declares
1 Time is the controlling motive $or the establishment
o$ the contract
+emand would be useless
ii. I#ere Pa8ment +#ould 5e 9ade:
0 Primar" *ule+ 'greement o$ the parties
Art. )%*). Dayment to a person who is incapacitated to administer his property shall be valid i$
he has ,ept the thing delivered, or inso$ar as the payment has been bene$icial to him.
Dayment made to a third person shall also be valid inso$ar as it has redounded to the bene$it o$ the
creditor. /uch bene$it to the creditor need not be proved in the $ollowing cases<
=1> 9$ a$ter the payment, the third person ac.uires the creditorGs rights&
=> 9$ the creditor rati$ies the payment to the third person&
=!> 9$ by the creditorGs conduct, the debtor has been led to believe that the third person had
authority to receive the payment.
`
Art. )%*%. Dayment made in good $aith to any person in possession o$ the credit shall release
the debtor.
`
Art. ))&2. Those obliged to deliver or to do something incur in delay $rom the time the obligee
*udicially or e(tra*udicially demands $rom them the $ul$illment o$ their obligation.
Aowever, the demand by the creditor shall not be necessary in order that delay may e(ist<
=1> #hen the obligation or the law e(pressly so declare& or
=> #hen $rom the nature and the circumstances o$ the obligation it appears that the
designation o$ the time when the thing is to be delivered or the service is to be rendered
was a controlling motive $or the establishment o$ the contract& or
=!> #hen demand would be useless, as when the obligor has rendered it beyond his power to
per$orm.
9n reciprocal obligations, neither party incurs in delay i$ the other does not comply or is not
ready to comply in a proper manner with what is incumbent upon him. From the moment one o$
the parties $ul$ills his obligation, delay by the other begins.
Professor Ruben F. Balane Pa)e +4- of +,-
1 @econdar" *ule+ Dlace where the thing was at the time the
obligation was constituted i$ the obligation is to deliver a
determinate thing
Tertiar" *ule+ +ebtors domicile =not residence>
!% % /pecial Forms o$ Dayment
a. Dacion en pa/o ='rticle 1%0>
Art. 1245. Dation in pa"ment% whereb" propert" is
alienated to the creditor in satisfaction of a debt in mone"% shall
be governed b" the law of sales.
!0 Dacion en pago is the act o$ e(tinguishing the obligation by
the substitution o$ payment. 9t is the delivery and transmission o$
ownership o$ a thing by the debtor to the creditor as an accepted
per$ormanceKpayment o$ an obligation.
!3 @y agreement o$ the parties, the prestation is changed.
!5 Dacion en pago is a special $orm o$ payment since it does
not comply with the re.uisite o$ identity.
!8 2ther terms $or dacion en pago include dation in payment,
dation en paiement and datio in solutum.
!: Dacion en pago is governed by the law on sales ='rticle
1%0>.
%0 There are ways o$ loo,ing at dacion en pago. The
traditional way is to view dacion en pago as a sale.
%1 Example: ' owes @ D100,000. ' has no cash when the loan
$alls due but he o$$ers the car i$ @ wants it. @ accepts.
% Aere, the debt is in money but payment is in something else.
%! 'ccording to the old traditional concept, it is li,e a sale
because D100,000 seemed to be the purchase price and the car is
the ob*ect.
%% Aowever, the modern view is to loo, at dacion en pago as a
novation.
%0 Castan has another view o$ dacion en pago. Ae believes that
it is neither a sale nor a novation but a special $orm o$ payment. 9t
is a speciesKvariation o$ payment implying an onerous transaction
similar to but not e.ual to a sale. 9t is not novation since there is
no new obligation.
%3 Dacion en pago will ta,e place only i$ the parties consent.
%5 Dacion en pago e(tinguishes the obligation up to the value o$
the thing delivered unless the parties agree that the entire
obligation is e(tinguished (Lopez vs. ;A).
b. Application o. pa!ents ='rticles 10410%>
Art. 1252. 9e who has various debts of the same kind in
favor of one and the same creditor% ma" declare at the time of
making the pa"ment% to which of them the same must be
applied. ?nless the parties so stipulate% or when the application
of pa"ment is made b" the part" for whose benefit the term has
been constituted% application shall not be made as to debts
which are not "et due.
,f the debtor accepts from the creditor a receipt in which
an application of the pa"ment is made% the former cannot
complain of the same% unless there is a cause for invalidating
the contract.
Art. 1253. ,f the debt produces interest% pa"ment of the
principal shall not be deemed to have been made until the
interests have been covered.
Art. 1254. 0hen the pa"ment cannot be applied in
accordance with the preceding rules% or if application can not be
inferred from other circumstances% the debt which is most
onerous to the debtor% among those due% shall be deemed to
have been satisfied.
,f the debts due are of the same nature and burden% the
pa"ment shall be applied to all of them proportionatel".
0 'pplication payment is the designation o$ the debt which is
being paid by a debtor who has several obligations o$ the same ,ind
in $avor o$ the creditor to whom payment is made.
1 The situation in application o$ payments is that a debtor
owes his creditor. There are several debts due, but the debtor
cannot pay all o$ the debts due.
Example: ' owes @ D000, D!000 and D10,000. ' gives @
D10,000. There is no application o$ payment here because it is
e.ual to the total amount due.
! The creditor can always not accept application o$ payments
since the creditor cannot be compelled to accept partial
per$ormance o$ the obligation. Aowever, this may not be wise since
the debtor may have other creditors.
% The rules on application o$ payment solve the problem o$
distributing the payment which is less than the total obligation.
0 -ules in 'pplication o$ Dayment
3 '
st
*ule+ 'pply in accordance with the agreement
5 6
nd
*ule+ 9$ there is no agreement, the debtor has the right
to apply
8 8
rd
*ule+ 9$ the debtor does not choose, the creditor can
choose.
: =
th
*ule+ 'pply to the most onerous debt ='rticle 10%, B1>
10 -ules to +etermine #hich is the Eore 2nerous
2bligation
Professor Ruben F. Balane Pa)e +*4 of +,-
i. 'n interest bearing obligation is more onerous than a
non4interest bearing obligation.
ii. 'n older debt is more onerous than a recent debt
iii. 'n obligation where the party is bound as a principal is
more onerous than an obligation is bound as a surety
iv. 'n obligation which is secured is more onerous than an
obligation which is unsecured
v. 'n obligation with a penal clause is more onerous than
an obligation without a penal clause
%8 )
th
*ule+ 9$ e.ually onerous, apply proportionately ='rticle
10%, B>
c. &a!ent '! cession ='rticle 100>
Art. 1255. The debtor ma" cede or assign his propert" to
his creditors in pa"ment of his debts. This cession% unless there
is stipulation to the contrar"% shall onl" release the debtor from
responsibilit" for the net proceeds of the thing assigned. The
agreements which% on the effect of the cession% are made
between the debtor and his creditors shall be governed b"
special laws.
0 The situation is contemplated here is that the debtor has
several creditors and several debts. Ae turns over property to his
creditors who are given the authority to sell the property and to
apply the proceeds to his debt.
1 9n payment by cession, property is turned over by the debtor
to the creditors who ac.uire the right to sell it and divide the net
proceeds among themselves.
9n payment by cession, the creditors do not own the
property to be sold. The creditors only have the power to sell. The
net proceeds o$ the sale will be distributed according to the
agreement.
! Dayment by cession is a special $orm o$ payment because
there is no completeness o$ per$ormance ? integrity. 9n most
cases, there will be a balance due.
% Dayment by Cession +istinguished $rom Dacion en Pago
0 9n dacion en pago, there is a trans$er o$ ownership $rom the
debtor to the creditor. 9n pa8ment 58 cesion, there is no
trans$er o$ ownership. The creditors simply ac.uire the right to
sell the properties o$ the debtor and apply the proceeds o$ the
sale to the satis$action o$ their credit.
3 Dayment by cession does not generally terminate all debts
due since normally there is still a balance due. The balance will
continue to be due unless the parties agree otherwise. "sually,
the termination is only to the e(tent o$ the net proceeds. The
e(tinguishment o$ the obligation is pro tanto.
5 Dayment by cession must be distinguished $rom insolvency.
Professor Ruben F. Balane Pa)e +** of +,-
8 Iinds o$ 9nsolvency
i. 1(tra*udicial or Voluntary
0 9n e(tra*udicial insolvency, i$ there is a balance le$t,
the debtor must still pay.
1 Aowever, the debtor may limit which properties will
be sold by the creditors since the agreement is
contractual.
ii. Mudicial
0 9n *udicial insolvency, the obligation is totally
e(tinguished even i$ theres still a balance.
1 9n *udicial insolvency, every property which is not
e(empt $rom attachment or e(ecution is made available
$or sale.
d. 7en+er o. pa!ent an+ consi/nation ='rticle 1034131>
Art. 1256. ,f the creditor to whom tender of pa"ment has
been made refuses without just cause to accept it% the debtor
shall be released from responsibilit" b" the consignation of the
thing or sum due.
Consignation alone shall produce the same effect in the
following cases+
5'7 0hen the creditor is absent or unknown% or does not
appear at the place of pa"ment3
567 0hen he is incapacitated to receive the pa"ment at the
time it is due3
587 0hen% without just cause% he refuses to give a receipt3
5=7 0hen two or more persons claim the same right to
collect3
5)7 0hen the title of the obligation has been lost.
Art. 1257. ,n order that the consignation of the thing due
ma" release the obligor% it must first be announced to the
persons interested in the fulfillment of the obligation.
The consignation shall be ineffectual if it is not made
strictl" in consonance with the provisions which regulate
pa"ment.
Art. 1258. Consignation shall be made b" depositing the
things due at the disposal of judicial authorit"% before whom the
tender of pa"ment shall be proved% in a proper case% and the
announcement of the consignation in other cases.
The consignation having been made% the interested
parties shall also be notified thereof.
Art. 1259. The e-penses of consignation% when properl"
made% shall be charged against the creditor.
Professor Ruben F. Balane Pa)e +*. of +,-
Art. 1260. #nce the consignation has been dul" made%
the debtor ma" ask the judge to order the cancellation of the
obligation.
Gefore the creditor has accepted the consignation% or
before a judicial declaration that the consignation has been
properl" made% the debtor ma" withdraw the thing or the sum
deposited% allowing the obligation to remain in force.
Art. 1261. ,f% the consignation having been made% the
creditor should authori$e the debtor to withdraw the same% he
shall lose ever" preference which he ma" have over the thing.
The co/debtors% guarantors and sureties shall be released.
0 Consignation is the act o$ depositing the thing due wK the
court or *udicial authorities whenever the creditor cannot accept or
re$uses to accept payment and it generally re.uires a prior tender
o$ payment.
1 9t is de$ined in the case o$ +oco vs. 9ilitante as a deposit o$
the ob*ect o$ the prestation in a competent court in accordance with
the rules prescribed by law, a$ter tender o$ payment was re$used or
circumstances which render payment impossible or inadvisable.
'ccording to Dro$essor @alane, the title o$ the subsection is
wrong. 9t should have been consignation only because that is the
special mode o$ payment and not the tender o$ payment.
! Tender o$ payment is a mani$estation made by the debtor o$
his willingness, readiness and ability to pay.
% 9t is a special mode o$ payment because payment is made
not to the creditor but to the court.
0 Consignation is an option on the part o$ the debtor because
consignation assumes that the creditor was in mora accipiendi when
the creditor without *ust cause, re$uses to accept payment. 2$
course, i$ the creditor without *ust cause re$uses to accept payment,
the debtor may *ust delay payment. @ut something still hangs
above his head. Ae is there$ore, given the option to consign.
3 -e.uisites<
i. That there was a debt due
ii. That the consignation o$ the obligation had been made because
o$ some legal cause, either because
0 Tender o$ payment was un*ustly re$used by the
creditor or
1 There is no need $or tender o$ payment due to
circumstances which ma,e tender o$ payment impossible or
inadvisable
%: Circumstances #hich Ea,e Tender o$ Dayment
"nnecessary ='rticle 103>
Professor Ruben F. Balane Pa)e +*+ of +,-
a. The creditor was absent or un,nown, or does not
appear at the place o$ payment
b. The creditor was incapacitated to receive the
payment at the time it was due
00 Dayment made to an incapacitated person
does not count e(cept to the e(tent that the
incapacitated person is bene$ited.
c. The creditor, without *ust cause re$uses to give a
receipt
01 'ccording to Dro$essor @alane, this is wrong.
This is not a special case wherein you dont need
tender o$ payment. This presupposes that there
has been a prior tender o$ payment.
d. /everal persons claimed to be entitled to receive the
amount due
0 The debtor should $ile interpleader with
consignation
e. The title o$ the obligation has been lost
iii. That previous notice o$ the consignation had been given to the
person interested in the per$ormance o$ the obligation ='rticle
105>
iv. That the amount due was placed at the disposal o$ the court
=consignation proper>
v. That a$ter the consignation had been made the person
interested was noti$ied thereo$ =second notice.>
0! Failure o$ any o$ these re.uirements is enough
ground to render a consignation ine$$ective.
. !oss of the Thing Due ='rticles 13413:>
Art. 1262. An obligation which consists in the deliver" of a
determinate thing shall be e-tinguished if it should be lost or
destro"ed without the fault of the debtor% and before he has incurred
in dela".
0hen b" law or stipulation% the obligor is liable even for
fortuitous events% the loss of the thing does not e-tinguish the
obligation% and he shall be responsible for damages. The same rule
applies when the nature of the obligation re.uires the assumption of
risk.
Art. 1263. ,n an obligation to deliver a generic thing% the loss
or destruction of an"thing of the same kind does not e-tinguish the
obligation.
Art. 1264. The courts shall determine whether% under the
circumstances% the partial loss of the object of the obligation is so
important as to e-tinguish the obligation.
Professor Ruben F. Balane Pa)e +*/ of +,-
Art. 1265. 0henever the thing is lost in the possession of the
debtor% it shall be presumed that the loss was due to his fault% unless
there is proof to the contrar"% and without prejudice to the provisions
of article ''B). This presumption does not appl" in case of
earth.uake% flood% storm% or other natural calamit".
Art. 1266. The debtor in obligations to do shall also be released
when the prestation becomes legall" or ph"sicall" impossible without
the fault of the obligor.
Art. 1268. 0hen the debt of a thing certain and determinate
proceeds from a criminal offense% the debtor shall not be e-empted
from the pa"ment of its price% whatever ma" be the cause for the loss%
unless the thing having been offered b" him to the person who should
receive it% the latter refused without justification to accept it.
Art. 1269. The obligation having been e-tinguished b" the loss
of the thing% the creditor shall have all the rights of action which the
debtor ma" have against third persons b" reason of the loss.
0 ;oss o$ the thing here is not to be ta,en in the strict legal meaning
o$ OlossP. ;oss can be applied in an obligation to give a determinate thing
='rticle 13>, in an obligation to give a generic thing ='rticle 13!> and in
an obligation to do ='rticle 133>.
1 The term loss embraces all causes which may render impossible the
per$ormance o$ the prestations ? impossibility o$ per$ormance .
' thing is lost when it perishes, or goes out o$ commerce, or
disappears in such a way that its e(istence is un,nown or it cannot be
recovered.
! #hen the debt o$ a thing certain and determinate proceeds $rom a
criminal o$$ense, the debtor shall not be e(empted $rom the payment o$ its
price, whatever may be the cause $or the loss, unless the thing having
been o$$ered by him to the person who should receive it, the latter re$used
without *usti$ication to accept it ='rticle 138>.
% Iinds o$ 9mpossibility 'ccording to Time
a. 2riginal 9mpossibility
54 9$ the impossibility had already e(isted when the contract
was made, then the result is not e(tinguishments but ine$$icacy o$
the obligation under 'rticles 1!%8 and 1%:!
. The contract is void.

b. /upervening 9mpossibility
The impossibility o$ per$ormance must be subse.uent to the
e(ecution o$ the contract in order to e(tinguish the obligation.
Art. )(*/. 9mpossible things or services cannot be the ob*ect o$ contracts.

Art. )*2(. 9$ at the time the contract o$ sale is per$ected, the thing which is the ob*ect o$
the contract has been entirely lost, the contract shall be without any e$$ect.
@ut i$ the thing should have been lost in part only, the vendee may choose between
withdrawing $rom the contract and demanding the remaining part, paying its price in proportion to
the total sum agreed upon.
Change in the Circumstances
Re5us sic stanti5us literally means Othings as they stand.P 9t is
short $or clausula re5us sic stanti5us ? agreement o$ things as
they stand. 'lso called Riesgo imprevisi5le =/panish>, 7#eorie
dAimprevision =French> and >ersc#uvinden des :rundgesc#K!tes
=6erman>.
Art. 1267. 0hen the service has become so
difficult as to be manifestl" be"ond the contemplation of
the parties% the obligor ma" also be released therefrom%
in whole or in part.
0 9n -oman law, no matter how di$$icult the obligation is, it
has to be per$ormed or else the obligor may be liable $or
damages (pacta sunt servanda). 9n Eedieval times, although
agreements should be complied with, in certain e(treme
circumstances, the debtor can be released because o$ the
di$$iculty in per$ormance.
1 This is a principle o$ international law which holds that when
states enter into a treaty, they enter ta,ing into account the
circumstances at the time it was entered into and should the
circumstances change as to ma,e the $ul$illment o$ the treaty
very di$$icult, one may as, $or a termination o$ the treaty. This
principle o$ international law has spilled over into Civil law.
The underlying philosophy here is that when parties enter
into an agreement, the parties contemplate e(isting
circumstances. #hen things supervene, the parties may be
discharged because they did not contemplate such di$$icult
circumstances.
! This doctrine is also called the doctrine o$ e(treme di$$iculty
and $rustration o$ commercial ob*ect or enterprise.
% The attitude o$ the courts on this doctrine is very strict. This
principle has always been strictly applied. To give it a liberal
application is to undermine the binding $orce o$ an obligation.
1very obligation is di$$icult. The per$ormance must be e(tremely
di$$icult in order $or re5us sic stanti5us to apply.
0 -e.uisites
i. The event or change could not have been $oreseen at the
time o$ the e(ecution o$ the contract
ii. The event or change ma,es the per$ormance e(tremely
di$$icult but not impossible
iii. The event must not be due to an act o$ either party
iv. The contract is $or a $uture prestation.
00 9$ the contract is o$ immediate $ul$illment, the gross
ine.uality o$ the reciprocal prestation may involve lesion or want
o$ cause.
03 2bligation to 6ive
a. 2bligation to give a determinate thing
The happening o$ a $ortuitous event in itsel$ does not necessarily
e(tinguish an obligation to deliver a determinate thing. 'n
obligation consisting in the delivery o$ a speci$ied thing, shall be
e(tinguished when the said thing is lost or destroyed without the
$ault o$ the obligor and be$ore he is in de$ault.
#henever the thing is lost in the possession o$ the debtor, it shall
be presumed that the loss was due to his $ault, unless there is proo$
to the contrary, and without pre*udice to the provisions o$ 'rticle
1130. This presumption does not apply in case o$ earth.ua,e,
$lood, storm or other natural calamity ='rticle 130>
b. 2bligation to give a generic thing
0 The happening o$ a $ortuitous event does not e(tinguish the
obligation to deliver a generic thing :enus nun=uam perit G Lgenus
never perishes.P This is the general rule. /ometimes, though, the
entire genus perishes because it becomes illegal.
1 #hat is not covered by this rule is an obligation to deliver a
limited generic.
Example: 9 promise to deliver to you one o$ my Amorsolos =9 have
%>. This is not generic because 9 only have $our but not speci$ic
because 9 did not speci$y which one. This is governed by 'rticle
13. 9n this case, the obligation may be e(tinguished by the loss
o$ all the things through $ortuitous event.
05 2bligation to do
08 The debtor in obligations to do shall also be released when the
prestation becomes legally or physically impossible without the $ault o$
the obligor ='rticle 133>.
0: The impossibility here must be supervening. 9$ it is original, then
the contract is void.
30 Iinds o$ 9mpossibility 'ccording to Nature
a. 2b*ective 9mpossibility
31 9n ob*ective impossibility, the act cannot be done by anyone.
The e$$ect o$ ob*ective impossibility is to e(tinguish the obligation.
b. /ub*ective 9mpossibility
3 9n sub*ective impossibility, the obligation becomes
impossible only wK respect to the obligor. There are ! views as to
the e$$ect o$ a sub*ective impossibility<
i The obligation is not e(tinguished. The obligor should as,
another to do the obligation.
ii. The obligation is e(tinguished.
iii. ' third view distinguishes one prestation which is very personal
and one which are not personal such that sub*ective
impossibility is a cause $or e(tinguishes a very personal
obligation but not an obligation which is not very personal.
Professor Ruben F. Balane Pa)e +*, of +,-
3! 1$$ect o$ ;oss on Creditors -ights
0 The obligation having been e(tinguished by the loss o$ the thing,
the creditor shall have all the rights o$ action which the debtor may
have against the third person by reason o$ the loss.
1 ' common e(ample o$ this is insurance.
Professor Ruben F. Balane Pa)e +*- of +,-
!. Condonation or *emission of the Due
Art. 1270. Condonation or remission is essentiall" gratuitous%
and re.uires the acceptance b" the obligor. ,t ma" be made e-pressl"
or impliedl".
#ne and the other kind shall be subject to the rules which
govern inofficious donations. :-press condonation shall% furthermore%
compl" with the forms of donation.
Art. 1271. The deliver" of a private document evidencing a
credit% made voluntaril" b" the creditor to the debtor% implies the
renunciation of the action which the former had against the latter.
,f in order to nullif" this waiver it should be claimed to be
inofficious% the debtor and his heirs ma" uphold it b" proving that the
deliver" of the document was made in virtue of pa"ment of the debt.
Art. 1272. 0henever the private document in which the debt
appears is found in the possession of the debtor% it shall be presumed
that the creditor delivered it voluntaril"% unless the contrar" is proved.
Art. 1273. The renunciation of the principal debt shall
e-tinguish the accessor" obligations3 but the waiver of the latter shall
leave the former in force.
Art. 1274. ,t is presumed that the accessor" obligation of
pledge has been remitted when the thing pledged% after its deliver" to
the creditor% is found in the possession of the debtor% or of a third
person who owns the thing.
0 Condonation or remission is an act o$ liberality by virtue o$ which,
without receiving any e.uivalent, the creditor renounces en$orcement o$ an
obligation which is e(tinguished in whole or in part.
1 -e.uisites
a. The debt must be e(isting
Hou can remit a debt even be$ore it is due.
Example: 9 owe ' D1E. 9 promised to pay on Muly !1, 00 with
interest. 2n Eay !1, ' condones the obligation. The obligation is
e(isting but not yet due but it can be condoned.
b. The renunciation must be gratuitous
3% 9$ renunciation is $or a consideration, the mode o$
e(tinguishment may be something else. 9t may be novation,
compromise or dacion en pago $or e(ample.
c. There must be acceptance by the debtor
d. The parties must have capacity
0 The creditor must have capacity to give away.
1 The debtor must have capacity to accept.
30 Form
a. 9$ the renunciation is e(press, then it is a donation.
66 The $orm o$ donation must be observed. 9$ the condonation
involves movables, apply 'rticle 5%8
. 9$ it involves immovables,
apply 'rticle 5%:
.
b. 9$ the renunciation is implied, then it is tantamount to a waiver.
0 There is no prescribed $orm in a waiver ='rticle 3
C
>. For
e(ample, the creditor can *ust re$use to collect the debt.
1 'ccording to Dro$essor @alane, 'rticles 151 and 15
re$er
to a ,ind o$ implied renunciation when the creditor divests himsel$
o$ the proo$ credit.
The delivery o$ a private document, evidencing a credit,
made voluntarily by the creditor to the debtor, implies the
renunciation o$ the action which the $ormer had against the latter.
! 9$ in order to nulli$y this waiver it should be claimed to be
ino$$icious, the debtor and his heirs may uphold it by providing that
the delivery o$ the document was made in virtue o$ payment o$ the
debt ='rticle 151>.
% 'rticle 151 has no application to public documents because
there is always a copy in the archives which can be used to
prove the credit. Drivate document re$ers to the original in
order $or 'rticle 151 to apply.
0 @y delivering the private document, the creditor deprives
himsel$ o$ proo$.
Art. 1*/. The donation o$ a movable may be made orally or in writing.

'n oral donation re.uires the simultaneous delivery o$ the thing or o$ the document
representing the right donated.
9$ the value o$ the personal property donated e(ceeds $ive thousand pesos, the donation
and the acceptance shall be made in writing, otherwise, the donation shall be void. =3!a>
Art. 1*2. 9n order that the donation o$ an immovable may be valid, it must be made in a
public document, speci$ying therein the property donated and the value o$ the charges which the
donee must satis$y.
*
Art. &. -ights may be waived, unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or pre*udicial to a third person with a right recogni7ed by law.
_
Art. )%1). The delivery o$ a private document evidencing a credit, made voluntarily by the
creditor to the debtor, implies the renunciation o$ the action which the $ormer had against the
latter.
9$ in order to nulli$y this waiver it should be claimed to be ino$$icious, the debtor and his
heirs may uphold it by proving that the delivery o$ the document was made in virtue o$ payment o$
the debt. =1188>
Art. )%1%. #henever the private document in which the debt appears is $ound in the
possession o$ the debtor, it shall be presumed that the creditor delivered it voluntarily, unless the
contrary is proved.
Professor Ruben F. Balane Pa)e +.4 of +,-
3 The second paragraph o$ 'rticle 151 implies that the
voluntary return o$ the title o$ credit is presumed to be by
reason o$ remission and not by reason o$ the payment o$ debt.
'ccording to Dro$essor @alane, this is anomalous. This
provision is absurd and immoral in that it authori7es the debtor
and his heirs to prove that they paid the debt, when the
provision itsel$ assumes that there has been a remission, which
is gratuitous.
5 #henever the private document in which the debt appears is
$ound in the possession o$ the debtor, it shall be presumed that the
creditor delivered it voluntarily, unless the contrary is proved
='rticle 15>.
8 Dresumptions<
i. 9$ a private document is $ound in the possession o$ the debtor,
then it is presumed that the creditor voluntarily delivered it to
him
ii. /ince the creditor voluntarily delivered the private document,
then there is a presumption o$ remission
35 #ays o$ -emission
0 @y will
1 @y agreement
38 1$$ect o$ Dartial -emission
3: The renunciation o$ the principal debt shall e(tinguish the accessory
obligations& but the waiver o$ the latter shall leave the $ormer in $orce
='rticle 15!>.
Example: ;oan secured by a mortgage. 9$ 9 condone the loan, 9
condone the mortgage. @ut i$ 9 condone the mortgage, 9 do not
condone the loan which merely becomes unsecured.
0 The obligation o$ the guarantor is e(tinguished at the same time as
that o$ the debtor, and $or the same causes as all other obligations
='rticle 053>.
1 The guarantors, even though they be solidary, are released $rom
their obligation whenever by some act o$ the creditor they cannot be
subrogated to the rights, mortgages, and pre$erences o$ the latter
='rticle 080>.
9t is presumed that the accessory obligation o$ pledge has been
remitted when the thing pledged, a$ter its delivery to the creditor, is
$ound in the possession o$ the debtor, or o$ a third person who owns
the thing ='rticle 15%>.
! 'ccording to Dro$essor @alane, the accessory obligation o$
pledge is e(tinguished because pledge is a possessory lien. The
presumption in this case is that the pledgee has surrendered the
thing pledged to the pledgor. Aowever, this is not a conclusive
presumption according to 'rticle 110, B.
% This presumption is not applicable in a mortgage since there
is no possessory lien.
Professor Ruben F. Balane Pa)e +.* of +,-
0 9n addition to the re.uisites prescribed in article 080, it is
necessary, in order to constitute the contract o$ pledge, that the thing
pledged be placed in the possession o$ the creditor, or o$ a third person
by common agreement ='rticle 0:!>
3 The debtor cannot as, $or the return o$ the thing pledged against
the will o$ the creditor, unless and until he has paid the debt and its
interest, with e(penses in a proper case ='rticle 100>.
%. Confusion or <erger of *ights
Art. 1275. The obligation is e-tinguished from the time the
characters of creditor and debtor are merged in the same person.
Art. 1276. <erger which takes place in the person of the
principal debtor or creditor benefits the guarantors. Confusion which
takes place in the person of an" of the latter does not e-tinguish the
obligation.
Art. 1277. Confusion does not e-tinguish a joint obligation
e-cept as regards the share corresponding to the creditor or debtor in
whom the two characters concur.
0 Con$usion is the meeting in one person o$ the .ualities o$ the
creditor and debtor with respect to the same obligation.
1 Con$usion or merger o$ rights e(tinguishes the obligation because
the creditor becomes his own debtor. There$ore, how can the creditor sue
himsel$.
-e.uisites o$ Con$usion
a. 9t must ta,e place between the creditor and the principal debtor
='rticle 153>
50 ' borrowed D 1E $rom @ with C as guarantor. 9$ C ac.uires
the right to collect the D 1E, there is no con$usion since C is neither
a principal debtor or creditor. The e$$ect is that the guaranty is
e(tinguished. The principal obligation remains.
b. The very same obligation must be involved ='rticle 150>
51 "sual Causes o$ Con$usion
a. /uccession =compulsory, testate, intestate>
b. +onation
c. Negotiation o$ a negotiable instrument
5 Con$usion can overlap with remission or payment.
Example o! con!usion overlapping 4it# remission: T owes 2 D100,000. 2
be.ueath to T that credit. 'nd then she died. 9n this case, there is
e(tinguishment both by merger. @ut in this case, merger could overlap
with remission.
Example o! con!usion overlapping 4it# pa8ment. ' ma,es a promissory
note and endorses it to @. @ endorsed it to C. C to +. + endorsed it bac,
to '.
Professor Ruben F. Balane Pa)e +.. of +,-
0. Compensation
Art. 1278. Compensation shall take place when two persons% in
their own right% are creditors and debtors of each other.
Art. 1279. ,n order that compensation ma" be proper% it is
necessar"+
5'7 That each one of the obligors be bound principall"% and that he
be at the same time a principal creditor of the other3
567 That both debts consist in a sum of mone"% or if the things due
are consumable% the" be of the same kind% and also of the
same .ualit" if the latter has been stated3
587 That the two debts be due3
5=7 That the" be li.uidated and demandable3
5)7 That over neither of them there be an" retention or
controvers"% commenced b" third persons and communicated
in due time to the debtor.
Art. 1280. 2otwithstanding the provisions of the preceding
article% the guarantor ma" set up compensation as regards what the
creditor ma" owe the principal debtor.
Art. 1281. Compensation ma" be total or partial. 0hen the two
debts are of the same amount% there is a total compensation.
Art. 1282. The parties ma" agree upon the compensation of
debts which are not "et due.
Art. 1283. ,f one of the parties to a suit over an obligation has
a claim for damages against the other% the former ma" set it off b"
proving his right to said damages and the amount thereof.
Art. 1284. 0hen one or both debts are rescissible or voidable%
the" ma" be compensated against each other before the" are judiciall"
rescinded or avoided.
Art. 1285. The debtor who has consented to the assignment of
rights made b" a creditor in favor of a third person% cannot set up
against the assignee the compensation which would pertain to him
against the assignor% unless the assignor was notified b" the debtor at
the time he gave his consent% that he reserved his right to the
compensation.
,f the creditor communicated the cession to him but the debtor
did not consent thereto% the latter ma" set up the compensation of
debts previous to the cession% but not of subse.uent ones.
,f the assignment is made without the knowledge of the debtor%
he ma" set up the compensation of all credits prior to the same and
also later ones until he had knowledge of the assignment.
Professor Ruben F. Balane Pa)e +.+ of +,-
Art. 1286. Compensation takes place b" operation of law% even
though the debts ma" be pa"able at different places% but there shall be
an indemnit" for e-penses of e-change or transportation to the place
of pa"ment.
Art. 1287. Compensation shall not be proper when one of the
debts arises from a depositum or from the obligations of a depositar"
or of a bailee in commodatum.
2either can compensation be set up against a creditor who has
a claim for support due b" gratuitous title% without prejudice to the
provisions of paragraph 6 of article 84'.
Art. 1288. 2either shall there be compensation if one of the
debts consists in civil liabilit" arising from a penal offense.
Art. 1289. ,f a person should have against him several debts
which are susceptible of compensation% the rules on the application of
pa"ments shall appl" to the order of the compensation.
Art. 1290. 0hen all the re.uisites mentioned in article '6CE are
present% compensation takes effect b" operation of law% and
e-tinguishes both debts to the concurrent amount% even though the
creditors and debtors are not aware of the compensation.
0 Compensation is a mode o$ e(tinguishing, to the concurrent
amount, the obligations o$ those persons who in their own right are
reciprocally debtors and creditors o$ each other.
1 Derhaps, ne(t to payment, compensation is the most common mode
o$ e(tinguishing an obligation.
Compensation +istinguished $rom Con$usion
! 9n compensation, there are parties and debts, whereas in
con$usion, there are debts and only 1 party.
% Iinds o$ Compensation
a. :e/al ='rticle 15:>
0 ;egal compensation ta,es place automatically by operation
o$ law once all the re.uisites under 'rticle 15: are present.
1 -e.uisites
i. The parties must be mutually debtors and creditors o$ each
other in their own right and as principals.
5! There can be no compensation i$ 1 party occupies
only a representative capacity =i.e. agent>. ;i,ewise, there
can be no compensation i$ in one obligation, a party is a
principal obligor and in another obligation, he is a guarantor.
ii. The things due must be $ungible
'rticle 15: uses the word OconsumableP. This is wrong.
The proper terminology is O$ungibleP which re$ers to things o$
Professor Ruben F. Balane Pa)e +./ of +,-
the same ,ind which in payment can be substituted $or
another.
iii. The debts must be due
iv. The debts must be li.uidated and demandable
0 +emandable means that the debts are en$orceable in
court, there being no apparent de$enses inherent in them.
The obligations must be civil obligations, e(cluding those
that are purely natural. @e$ore a *udicial decree o$ rescission
or annulment, a rescissible or voidable debt is valid and
demandable& hence, it can be compensated.
1 ' debt is li.uidated when its e(istence and amount
are determined. 'nd a debt is considered li.uidated, not
only when it is e(pressed already in de$inite $igures wKc do
not re.uire veri$ication, but also when the determination o$
the e(act amount depends only on a simple arithmetical
operation.
v. Neither o$ the debts must not be garnished
vi. Compensation must not be prohibited by law
0 'rticles 185, 188 and 15:%
are e(amples o$ when

legal compensation is not allowed.
1 ;egal compensation is not allowed when there is
conventional or $acultative compensation.
1$$ect o$ ;egal Compensation
! 9$ a person should have against him several debts which are
susceptible o$ compensation, the rules on the application o$
payments shall apply to the order o$ the compensation ='rticle
18:>
% #hen all the re.uisites mentioned in article 15: are
present, compensation ta,es e$$ect by operation o$ law, and
e(tinguishes both debts to the concurrent amount, even though
the creditors and debtors are not aware o$ the compensation
='rticle 1:0>
b. )acultati(e ='rticles 185, 188>
0 Facultative compensation ta,es place when compensation is
claimable by only one o$ the parties but not o$ the other.
1 Compensation shall not be proper when one o$ the debts
arises $rom a depositum or $rom the obligations o$ a depositary or
o$ a bailee in commodatum.
Neither can compensation be set up against a creditor who
has a claim $or support due by gratuitous title, without pre*udice to
the provisions o$ paragraph o$ article !01 ='rticle 185>
_
Art. )12*. 1very partner is responsible to the partnership $or damages su$$ered by it through
his $ault, and he cannot compensate them with the pro$its and bene$its which he may have earned
$or the partnership by his industry. Aowever, the courts may e.uitably lessen this responsibility i$
through the partnerGs e(traordinary e$$orts in other activities o$ the partnership, unusual pro$its
have been reali7ed.
! The prohibition o$ compensation when one o$ the debts
arises $rom a depositum or commodatum is based on *ustice. '
deposit is made or a commodatum is given on the basis o$
con$idence in the depositary or the borrower. 9t is there$ore, a
matter o$ morality, that the depositary or the borrower should in
$act per$orm his obligation& otherwise, the trust or con$idence o$
the depositor or lender would be violated.
% #ith respect to $uture support, to allow its e(tinguishments
by compensation would de$eat its e(emption $rom attachment
and e(ecution ='rticle 00, Family Code> and may e(pose the
recipient to misery and starvation. Aowever, support in arrears
can be compensated.
0 The depositary cannot set up compensation wK respect to
the things deposited to him. @ut the depositor can set up the
compensation.
Example: ' is a warehouseman. @ deposits 1000 =uedans o$
rice with '. @ also owes ' 1000 ,ilos o$ rice. ' cannot claim
compensation but @ can set up compensation.
5% Neither shall there be compensation i$ one o$ the debts
consists in civil liability arising $rom a penal o$$ense ='rticle 188>
50 9$ 1 o$ the debts consists in civil liability arising $rom a penal
o$$ense, compensation would be improper and inadvisable
because the satis$action o$ such obligation is imperative.
53 The person who has the civil liability arising $rom the crime
cannot set up compensation. Aowever, the o$$ended party is
entitled to set up compensation.
c. Conventional or Contractual ='rticle 18>
Contractual or conventional compensation ta,es place when parties
agree to set4o$$ even i$ the re.uisites o$ legal compensation are not
present.
The parties may agree upon the compensation o$ debts which are
not yet due.
The parties may compensate by agreement any obligations, in wKc
the ob*ective re.uisites provided $or legal compensation are not
present.
d. 1udicial ='rticle 18!>
0 Mudicial compensation is compensation decreed by the court
in a case where there is a counterclaim.
1 9$ one o$ the parties to a suit over an obligation has a claim
$or damages against the other, the $ormer may set it o$$ by proving
his right to said damages and the amount thereo$.
1$$ect o$ 'ssignment ='rticle 180>
+ituation:
There are two credits ? credit 9 and credit 99. 9n credit 9, ' is the creditor
and @ is the debtor. 9n credit 99, @ is the creditor and ' is the debtor. '
wants to assign credit 9 to C. ' cannot assign credit 99 since it is passive
sub*ective novation. Can @ now invo,e against C the compensation o$
credit 99)
9t depends<
a. 9$ the assignment is with the debtors =@s> consent
55 +ebtor cannot set up compensation at all unless the right is
reserved.
b. 9$ the assignment is with the debtors =@s> ,nowledge but without
consent
58 The debtor can set up compensation with a credit already
e(isting at the time o$ the assignment.
c. 9$ the assignment is without the debtors =@s> ,nowledge
5: +ebtor can set up as compensation any credit e(isting at the
time he ac.uired ,nowledge even i$ it arose a$ter the actual
assignment.
3. 2ovation
Art. 1291. #bligations ma" be modified b"+
5'7 Changing their object or principal conditions3
567 @ubstituting the person of the debtor3
587 @ubrogating a third person in the rights of the creditor.
Art. 1292. ,n order that an obligation ma" be e-tinguished b"
another which substitute the same% it is imperative that it be so
declared in une.uivocal terms% or that the old and the new obligations
be on ever" point incompatible with each other.
Art. 1293. 2ovation which consists in substituting a new debtor
in the place of the original one% ma" be made even without the
knowledge or against the will of the latter% but not without the
consent of the creditor. Pa"ment b" the new debtor gives him the
rights mentioned in articles '68B and '68C.
Professor Ruben F. Balane Pa)e +., of +,-
Creditor
'
C
@
+ebtor
+ebtor Creditor
9
99
Art. 1294. ,f the substitution is without the knowledge or
against the will of the debtor% the new debtor;s insolvenc" or non/
fulfillment of the obligations shall not give rise to an" liabilit" on the
part of the original debtor.
Art. 1295. The insolvenc" of the new debtor% who has been
proposed b" the original debtor and accepted b" the creditor% shall not
revive the action of the latter against the original obligor% e-cept when
said insolvenc" was alread" e-isting and of public knowledge% or
known to the debtor% when the delegated his debt.
Art. 1296. 0hen the principal obligation is e-tinguished in
conse.uence of a novation% accessor" obligations ma" subsist onl"
insofar as the" ma" benefit third persons who did not give their
consent.
Art. 1297. ,f the new obligation is void% the original one shall
subsist% unless the parties intended that the former relation should be
e-tinguished in an" event.
Art. 1298. The novation is void if the original obligation was
void% e-cept when annulment ma" be claimed onl" b" the debtor or
when ratification validates acts which are voidable.
Art. 1299. ,f the original obligation was subject to a suspensive
or resolutor" condition% the new obligation shall be under the same
condition% unless it is otherwise stipulated.
Art. 1300. @ubrogation of a third person in the rights of the
creditor is either legal or conventional. The former is not presumed%
e-cept in cases e-pressl" mentioned in this Code3 the latter must be
clearl" established in order that it ma" take effect.
Art. 1301. Conventional subrogation of a third person re.uires
the consent of the original parties and of the third person.
Art. 1302. ,t is presumed that there is legal subrogation+
5'7 0hen a creditor pa"s another creditor who is preferred% even
without the debtor;s knowledge3
567 0hen a third person% not interested in the obligation% pa"s
with the e-press or tacit approval of the debtor3
587 0hen% even without the knowledge of the debtor% a person
interested in the fulfillment of the obligation pa"s% without
prejudice to the effects of confusion as to the latter;s share.
Art. 1303. @ubrogation transfers to the persons subrogated the
credit with all the rights thereto appertaining% either against the
debtor or against third person% be the" guarantors or possessors of
mortgages% subject to stipulation in a conventional subrogation.
Professor Ruben F. Balane Pa)e +.- of +,-
Art. 1304. A creditor% to whom partial pa"ment has been made%
ma" e-ercise his right for the remainder% and he shall be preferred to
the person who has been subrogated in his place in virtue of the
partial pa"ment of the same credit.
0 Novation is the e(tinguishment o$ an obligation by the substitution
or change o$ the obligation by a subse.uent one which e(tinguishes or
modi$ies the $irst, either by changing the ob*ect o$ principal conditions, or
by substituting the person o$ the debtor, or by subrogating a third person
in the rights o$ the creditor.
1 Novation is the most unusual mode o$ e(tinguishing an obligation.
9t is the only mode whereby an obligation is e(tinguished and a new
obligation is created to ta,e its place. The other modes o$ e(tinguishing an
obligation are absolute in the sense that the e(tinguishment o$ the
obligation is total. Novation, on the other hand, is a relative mode o$
e(tinguishing an obligation.
' compromise is a $orm o$ novation. The di$$erence is that a
compromise has some *udicial participation. The e$$ect o$ compromise is
the same as novation.
! Classi$ication o$ Novation
a. /ub*ective or Dersonal Novation ? change o$ one o$ the sub*ects
i. 'ctive sub*ective
This a change o$ creditor.
This is also ,nown as subrogation.
Iinds o$ /ubrogation
0 ;egal ='rticle 1!0>
80 9t is presumed that there is legal subrogation<
a. #hen a creditor pays another creditor who is
pre$erred, even without the debtorGs ,nowledge&
b. #hen a third person, not interested in the obligation,
pays with the e(press or tacit approval o$ the debtor
c. #hen, even without the ,nowledge o$ the debtor, a
person interested in the $ul$illment o$ the obligation
pays, without pre*udice to the e$$ects o$ con$usion as
to the latterGs share&
. Conventional
81 Conventional subrogation o$ a third person re.uires
the consent o$ the original parties and o$ the third person
='rticle 1!01>
8 1$$ect o$ /ubrogation
1. ' creditor, to whom partial payment has been made, may
e(ercise his right $or the remainder, and he shall be
pre$erred to the person who has been subrogated in his
place in virtue o$ the partial payment o$ the same credit
='rticle 1!0%>
. /ubrogation trans$ers to the person subrogated the credit
with all the rights thereto appertaining, either against the
debtor or against third persons, be they guarantors or
possessors o$ mortgages, sub*ect to stipulation in a
conventional subrogation ='rticle 1!0!>
ii. Dassive sub*ective
0 This is a change o$ debtor.
1 Types o$ Dassive /ub*ective
1. Expromission ='rticle 1:!>
0 9n expromission the changing o$ the debtor is not
upon the old debtorGs initiative. 9t could be upon the
initiative o$ the creditor or o$ the new debtor.
1 This re.uires the consent o$ the creditor since the
changing o$ the debtor may pre*udice him. This re.uires
the consent o$ the new debtor since he is the one who
will pay.
The consent o$ the old debtor is not re.uired.
! The intent o$ the parties must be to release the old
debtor. The release o$ the old debtor is absolute even i$ it
turns out that the new debtor is insolvent.
% Cases o$ expromission are .uite rare.
. Delegacion ='rticle 1:0>
9n delegacion the change is at the debtors initiative.
The consent o$ the old debtor =delegante>, the new
debtor =delegado>, and the creditor =delegatario> are all
re.uired.
The intent o$ the parties must be to release the old
debtor. Aowever, release o$ the old debtor is not
absolute. Ae may be held liable
a. 9$ the new debtor was already insolvent at the time o$
the delegacion& and
b. /uch insolvency was either ,nown to the old debtor
or o$ public ,nowledge
b. 2b*ective or -eal Novation
0 9n ob*ective novation there is a change in the ob*ect or in
the principal conditions.
1 Novation by a change in the principal conditions is the most
problematic ,ind o$ novation because one has to determine whether
or not the change in the conditions is principal or merely incidental.
9$ the amount o$ debt is increased, Castan thin,s that there
is a novation while Caguioa thin,s there is no novation. Dro$essor
@alane thin,s that Castan is correct. The old obligation is merged
with the new.
Professor Ruben F. Balane Pa)e ++4 of +,-
! 9$ the amount o$ the debt is decreased, according the /C in
+andico vs. Piguing there is no novation. 2ne can loo, at the
decrease o$ the amount as a partial remission.
% 9n 9illar vs. ;A there is no novation i$ the terms o$ the
payment are changed. 9n this case, there was a change $rom lump
sum to installment payments.
0 9n ?ua vs. @ap not only was the amount reduced, mode o$
payment was changed $rom single payment to installment. Finally,
a mortgage was constituted. The /C said in ?ua vs. @ap that there
was a novation. There$ore, a mere change in the amount or mode
o$ payment i$ ta,en singly is not a novation. @ut ta,en together,
there is a novation.
3 9n Inc#austi vs. @ulo, the /C said that the mere e(tension o$
time is not a novation $or the period does a$$ects only the
per$ormance and not the creation o$ an obligation. 9n another case,
the /C said that the shortening o$ the period is a novation.
c. Ei(ed Novation
8! Ei(ed is a combination o$ both sub*ective and ob*ective
novation.
8% -e.uisites o$ Novation
a. There must be a previous valid obligation
80 The novation is void i$ the original obligation was void,
e(cept when annulment may be claimed only by the debtor, or
when rati$ication validates acts which are voidable ='rticle 1:8>
b. There must be an agreement o$ the parties to create the new obligation
83 9$ the original obligation was sub*ect to a suspensive or
resolutory condition, the new obligation shall be under the same
condition, unless it is otherwise stipulated ='rticle 1::>
c. There must be an e(tinguishments o$ the old obligation
0 Dro$essor @alane considers this as an e$$ect rather than a
re.uisite o$ novation.
1 9n order that an obligation may be e(tinguished by another
which substitute the same, it is imperative that it be so declared in
une.uivocal terms, or that the old and the new obligations be on
every point incompatible with each other ='rticle 1:>
d. The new obligation must be valid
0 9$ the new obligation is void, the original one shall subsist,
unless the parties intended that the $ormer relation should be
e(tinguished in any event ='rticle 1:5>
1 1$$ect o$ Novation
0 'ccessory obligations may subsist only inso$ar as they may bene$it
third persons who did not give their consent, e.g. stipulation pour
autrui
1 General *ule+ 9n a novation, the accessory obligation is
e(tinguished.
Professor Ruben F. Balane Pa)e ++* of +,-
Exception: 9n an active sub*ective novation, the guarantors,
pledgors, mortgagors are not released.
! "nder 'rticle 1!0!, accessory obligations are not e(tinguished. /o
there is a con$lict) Aow do you resolve) 'ccording to commentators,
'rticle 1!0! is an e(ception to 'rticle 1:3.
% @ owes I D1 E. E is a guarantor o$ @. @ is substituted by ". @ is
released. E is also released under 'rticle 1:3. E is released since he
guarantees @s per$ormance and not @s. @ might have a good credit
standing but " may not. E might be pre*udiced i$ he has to guarantee
"s per$ormance.
0 9$ there is a change in the creditor under 'rticle 1!0!, the
guarantor is not released since it doesnt ma,e a di$$erence. #hat the
guarantor guarantees is the integrity o$ the debtor.
3 'nnulment
5 -escission
8 Ful$illment o$ a -esolutory Condition
: Drescription
10 +eath in Certain 9nstances
11 For e(ample, death e(tinguishes obligations which are purely personal =i.e.
obligations in marriage, obligation to support, obligations in a partnership,
etc.>
1 -enunciation by the Creditor ='rticle 3>
The creditor waives the obligation.
The renunciation need not be in any speci$ic $orm.
-enunciation and remission are di$$erent things. ' renunciation is a
re$usal by the creditor to en$orce his claim with the intention o$ waiving it.
' remission is in the nature o$ a donation.
1! Compromise
1% 'rrival o$ a -esolutory Term
10 Eutual +issent or +esistance =+aura vs. D-P>
13 "nilateral #ithdrawal
0 General *ule+ "nilateral withdrawals are not allowed.
1 Exception: Dartnership
15 Change o$ Civil /tatus
85 For e(ample, i$ the marriage is annulled, certain obligations are
e(tinguished, li,e the obligations to live together and to support one
another.
18 Re5us +ic +tanti5us ='rticle 135>
1: #ant o$ 9nterest
88 Example: ' owns a pe,ing duc, restaurant with a secret recipe $or
preparing pe,ing duc,. ' disclosed the secret recipe to @, his coo,. @ is
then prohibited in his employment contract to wor, in another restaurant
Professor Ruben F. Balane Pa)e ++. of +,-
within 0 years $rom leaving 's restaurant. Two years a$ter @ le$t, ' closes
his restaurant and opens a hardware store. @ can now wor, in a
restaurant.
0 Mudicial 9nsolvency
8: The e$$ect o$ *udicial insolvency is that all unpaid debts are written
o$$ $or good. Thus, even i$ the debtor has improved his $inancial situation
because o$ *udicial insolvency, there is no need $or the debtor to pay his
unpaid debts.
,,. Contracts
A. General &ro(isions
4 Definition
Art. 1305. A contract is a meeting of the minds between 6
persons whereb" one binds himself% with respect to the other% to give
something or to render some service.
:0 Dro$essor @alane thin,s that the de$inition in 'rticle 1!00 is
inaccurate. The term OpersonsP should be submitted by the term OpartiesP.
'lso, contracts may be multilateral& there can be more than parties
involved =i.e. partnership>.
' Characteristics of Contracts
0 ,'li/ator! .orce
Art. 1315. Contracts are perfected b" mere consent% and
from that moment the parties are bound not onl" to the fulfillment
of what has been e-pressl" stipulated but also to all the
conse.uences which% according to their nature% ma" be in keeping
with good faith% usage and law.
General *ule+ Contracts are per$ected by mere consent ? the
principle o$ consensuality ='rticle 1!10>
Exception: -eal contracts, such as deposit, pledge, and commodatum
are not per$ected until the delivery o$ the ob*ect o$ the obligation
='rticle 1!13>
2bligations arising $rom contracts have the $orce o$ law between the
parties and should be complied with in good $aith ='rticle 110:>
Art. 1314. An" third person who induces another to violate
his contract shall be liable for damages to the other contracting
part".
0 9t is not clear whether 'rticle 1!1% is a tortious liability or a
contractual liability. Dro$essor @alane considers it as only a tortious
liability so it is not violative o$ the rule on relativity o$ contracts.
1 'rticle 1!1% is really a .uasi4delict.
-e.uisites
i. 1(istence o$ a valid contract
Professor Ruben F. Balane Pa)e +++ of +,-
ii. Inowledge by the !
rd
person o$ the e(istence o$ the contract
iii. 9nter$erence by the !
rd
person in the contractual relation without
legal *usti$ication
1 0utualit!
Art. 1308. The contract must bind both contracting parties3
its validit" or compliance cannot be left to the will of one of them.
Art. 1309. The determination of the performance ma" be left
to a third person% whose decision shall not be binding until it has
been made known to both contracting parties.
Art. 1310. The determination shall not be obligator" if it is
evidentl" ine.uitable. ,n such case% the courts shall decide what is
e.uitable under the circumstances.
0 'n e(ample o$ a determination made by a !
rd
person ='rticle 1!0:>
is the $i(ing o$ the price by the !
rd
person.
1 The contract may be revo,ed i$ there is mutual dissent.
% Relati(it!
Art. 1311$ %1. Contracts take effect onl" between the
parties% their assigns and heirs% e-cept in case where the rights
and obligations arising from the contract are not transmissible b"
their nature% or b" stipulation or b" provision of law. The heir is not
liable be"ond the value of the propert" he received from the
decedent.
1 General *ule+ The contract is binding only upon the parties and
their successors ='rticle 1!11>. Aowever, i$ the contract is purely
personal =intuitu personae>, then the contract will not bind assigns and
heirs.
Exception: ! parties are a$$ected by the contract in the $ollowing
instances and can ta,e appropriate action
0 Accion pauliana ='rticle 1155>
Art. 1177. The creditors% after having pursued the
propert" in possession of the debtor to satisf" their claims%
ma" e-ercise all the rights and bring all the actions of the
latter for the same purpose% save those which are inherent in
his person3 the" ma" also impugn the acts which the debtor
ma" have done to defraud them.
! 'n rescissory action involving a contract in $raud o$
creditors.
Art. 1313. Creditors are protected in cases of
contracts intended to defraud them.
ii. Accion directa
Professor Ruben F. Balane Pa)e ++/ of +,-
4 ' direct =not subrogatory> action by the creditor against his
debtors debtor, a remedy which gives the creditor the
prerogative to act in his own name, such as the actions o$ the
lessor against the sublessee ='rticle 130
>, the laborer o$ an

independent contractor against the owner ='rticle 15:
>, the
principal against the subagent ='rticle 18:!
>, and the vendor4

a4retro against the trans$eree o$ the vendee ='rticle 1308
>.
iii. Article )()%
Art. 1312. ,n contracts creating real rights% third
persons who come into possession of the object of the
contract are bound thereb"% subject to the provisions of the
<ortgage !aw and the !and *egistration !aws.
iv. +tipulation pour autrui ? stipulation in $avor o$ a !
rd
person
Art. 1311$ %2. ,f a contract should contain some
stipulation in favor of a third person% he ma" demand its
fulfillment provided he communicated his acceptance to the
obligor before its revocation. A mere incidental benefit or
interest of a person is not sufficient. The contracting parties
must have clearl" and deliberatel" conferred a favor upon a
third person.
0 -e.uisites
1. There must be a stipulation in $avor o$ a !
rd
person
. That stipulation in $avor o$ a !
rd
person should be a part and
not the whole o$ the contract
_
Art. )&$%. The sublessee is subsidiarily liable to the lessor $or any rent due $rom the lessee.
Aowever, the sublessee shall not be responsible beyond the amount o$ rent due $rom him, in
accordance with the terms o$ the sublease, at the time o$ the e(tra4*udicial demand by the lessor.
Dayments o$ rent in advance by the sublessee shall be deemed not to have been made, so
$ar as the lessorGs claim is concerned, unless said payments were e$$ected in virtue o$ the custom o$
the place.
_
Art. )1%2. Those who put their labor upon or $urnish materials $or a piece o$ wor, underta,en
by the contractor have an action against the owner up to the amount owing $rom the latter to the
contractor at the time the claim is made. Aowever, the $ollowing shall not pre*udice the laborers,
employees and $urnishers o$ materials<
=1> Dayments made by the owner to the contractor be$ore they are due&
=> -enunciation by the contractor o$ any amount due him $rom the owner.
This article is sub*ect to the provisions o$ special laws.
Art. )/2(. 9n the cases mentioned in Nos. 1 and o$ the preceding article, the principal may
$urthermore bring an action against the substitute with respect to the obligations which the latter
has contracted under the substitution.
`
Art. )&0/. The vendor may bring his action against every possessor whose right is derived $rom
the vendee, even i$ in the second contract no mention should have been made o$ the right to
repurchase, without pre*udice to the provisions o$ the Eortgage ;aw and the ;and -egistration ;aw
with respect to third persons.
!. ' clear and deliberate intent to con$er a bene$it on a !
rd
person and not merely incidental
3 9n the case o$ 9andarin >illa vs. ;A the credit card
holder was held to have a right to sue under the contract
between the establishment and the ban,. The /upreme
Court said that its a stipulation pour autrui to con$er
bene$it on the customer to purchase on credit.
5 Aowever, Dro$essor @alane believes that it is
debatable whether an agreement between a credit card
company and establishment is a clear and deliberate
con$erment o$ bene$it on a third party. Ae would have
concurred with the decision in 9andarin >illa i$ the basis
was .uasi4delict.
%. That the $avorable stipulation should not be conditioned or
compensated by any ,ind o$ obligation whatever
0. Neither o$ the contracting parties bears the legal
representation o$ authori7ation o$ the !
rd
parties
8 9$ the !
rd
parties is represented, then the principles o$
agency apply.
3. The !
rd
person must have communicated his acceptance to
the obligor be$ore its revocation
d. Autono! o. ;ill
Art. 1306. The contracting parties ma" establish such
stipulations% clauses% terms and conditions as the" ma" deem
convenient% provided the" are not contrar" to law% morals% good
customs% public order% or public polic".
6 :lements of a Contract
0 Essential Eleents
Art. 1318. There is no contract unless the following
re.uisites concur+
5'7 Consent of the contracting parties3
567 #bject certain which is the subject matter of the contract3
587 Cause of the obligation which is established.
: The essential elements are those without which there can be no
contract. These elements are, in turn, subdivided into common
=communes>, special =especiales>, and e(traordinary =especialisimos>.
The common elements are those which are present in all contracts,
such as consent, ob*ect certain, and cause. The special elements are
present only in certain contracts, such as delivery in real contracts or
$orm in solemn ones. The e(traordinary elements are those which are
peculiar to a speci$ic contract =i.e. price in sales>.
i. ;onsent
1. Consent in 6eneral
10 +e$inition o$ Consent
Art. 1319$ 1
st
sentence. Consent is manifested
b" the meeting of the offer and the acceptance upon
the thing and the cause which are to constitute the
contract.
11 1lements o$ Consent
a. Dlurality o$ sub*ects
b. Capacity
c. 9ntelligent and $ree will
d. 1(press or tacit mani$estation o$ the will
e. Con$ormity o$ the internal will and its mani$estation
. 2$$er
1 'n o$$er is a unilateral proposition which 1 party
ma,es to the other $or the celebration o$ a contract.
Art. 1321. The person making the offer ma" fi-
the time% place% and manner of acceptance% all of
which must be complied with.
1! -e.uisites o$ 2$$er
a. +e$inite
1% The o$$er must be de$inite, so that upon
acceptance, an agreement can be reached on the
whole contract.
b. Complete
10 The o$$er must be complete, indicating with
su$$icient clearness the ,ind o$ contract intended and
de$initely stating the essential conditions o$ the
proposed contract as well as the non4essential ones
desired by the o$$eror.
c. 9ntentional
13 'n o$$er without seriousness, made in such
manner that the other party would not $ail to notice
such lac, o$ seriousness, is absolutely without
*uridical e$$ects and cannot give rise to a contract
=i.e. must not be made in *est, or a pran,>.
!. 'cceptance
a. -e.uisites o$ 'cceptance
i. "ne.uivocal
ii. "nconditional
15 9$ the acceptance is .uali$ied, then that is a
counter4o$$er ='rticle 1!1:, !
rd
sentence>.
Professor Ruben F. Balane Pa)e ++, of +,-
18 'n ampli$ied acceptance may or may not be
an acceptance o$ the original o$$er. 9t depends on the
circumstances.
Example: ' o$$ers to sell 1000 ,ilos o$ cement. @
says he wants to buy 000 ,ilos o$ cement. 9s the
1000 ,ilos accepted) 9t depends. 9$ buyer wants a
bloc, sale, that is, only 000 ,ilos and nothing less,
then it is a counter4o$$er.
b. Eani$estation o$ 'cceptance
Art. 1320. An acceptance ma" be e-press or
implied.
1: /ilence is ambiguous. /ilence in itsel$ is neither
acceptance nor re*ection. Can it mean acceptance) 2ne
must loo, at the circumstances.
Examples: ' and @ are own stalls which sell rice. C
delivers 1000 ,ilos o$ rice to ' every /unday. 9$ ' is not
there, C *ust leaves it with 's assistant. C tries to do
business with @. @ is not there though. C leaves rice
with @s assistant. @ does not call C. @oth ' and @ are
silent. ' accepted the rice because o$ the arrangement.
9$ ' did not want to accept the rice, then ' should have
called. @s silence is not acceptance.
c. Cognition Theory
Article 1319$ 2
n+
%. Acceptance made b" letter
of telegram does not bind the offerer e-cept from the
time it came to his knowledge.
0 This is ,nown as the Cognition Theory. Commercial
law uses the Theory o$ Eani$estation.
1 2$$er and acceptance ta,es e$$ect only $rom the time
,nowledge is ac.uired by the person to whom it is
directed. 9$ during intervening time, the o$$er or
acceptance is e(tinguished by deathKinsanity, such o$$er
or acceptance has no more e$$ect.
Example: 2$$eror gave o$$er on Earch 1. The o$$er
reached the o$$eree on Earch 0. From the point o$ view
o$ the o$$eror, o$$er is counted $rom Earch 0. Ae can still
countermand be$ore Earch 0.
9$ the parties are $ace to $ace, then there is no
problem since there is no time gap.
! The problem arises when there is a time gap. "nder
'rticle 1!1:, there is per$ection o$ the contract when
there is ,nowledge o$ the other partys acceptance. This
has serious conse.uences.
Example ). The o$$er was made in +avao on February 1.
The o$$er was sent through mail which is received in
Eanila on February 0. 2n the same day, the o$$er is
accepted. Eail is sent to +avao on February 0 signi$ying
Professor Ruben F. Balane Pa)e ++- of +,-
acceptance. 2n February 8, the party in Eanila becomes
insane. 2n February 1!, the mail reaches +avao.
'ccording to Dro$essor @alane, under 'rticle 1!!, there
is no contract since there was no contractual capacity.
Example %. The o$$er was made in @acolod on Earch 1.
9t was received in Que7on City on Earch !. 2n Earch %,
the o$$eree sends his acceptance. 2n Earch 0, the
o$$eror countermands o$$er. Now, both acceptance and
countermand o$ o$$er are in the mail. #hichever reaches
the destination $irst will be counted.
d. 2$$ers Through 'gents
Art. 1322. An offer made through an agent is
accepted from the time acceptance is communicated
to him.
e. 1$$ect o$ +eath, 9nsanity
Art. 1323. An offer becomes ineffective upon
the death% civil interdiction% insanit" or insolvenc" of
either part" before acceptance is conve"ed.
$. #ithdrawal o$ the 2$$er
Art. 1324. 0hen the offeror has allowed the
offeree a certain period to accept% the offer ma" be
withdrawn at an" time before acceptance b"
communicating such withdrawal% e-cept when the
option is founded upon consideration% something paid
or promised.
24 'rticle 1!% is related to 'rticle 1%5:, B
. They
actually say the same thing.
0 / o$$ers to sell a car to @ $or D!00,000. @ needs to
thin, about it, and so @ as,s $or !0 days and pays /
D0,000. The payment o$ D0,000 is a distinct
consideration $rom the price o$ the car. This distinct
consideration o$ D0,000 is payment $or the !0 days. @ is
paying $or time. The option contract is separate $rom the
contract o$ sale. / cannot sell the car to anybody else
within that !04day period. 9$ / sells the car to someone
else within the !04day period, he is guilty o$ contractual
breach. @ut @ can buy the car be$ore the end o$ the !04
day period and such will be a valid sale.
thin, about it, and so @ as,s $or !0 days. @ does not pay
/ $or time, but / promises to give @ !0 days. 9n this
case there is no option contract. Aowever, in +anc#ez
vs. Rigos, the /upreme Court said that even i$ there was
no option contract, / must still communicate the
`
Art. )*12 '%. 'n accepted unilateral promise to buy or to sell a determinate thing $or a price
certain is binding upon the promissor i$ the promise is supported by a consideration distinct $rom
the price.
withdrawal o$ the o$$er to @. 9$ / does not communicate
his withdrawal, that is tantamount to a continuing o$$er.
Dro$essor @alane does not agree with this. 'ccording to
him, i$ there is no valid option contract, there should be
no continuing o$$er. 'ccording to Dro$essor @alane, the
/upreme Court should have e(plained that.
thin, about it, and so @ as,s $or !0 days and pays
D0,000 to /. @ decides to buy the car within !0 days.
The car is not sold to anybody else. / does not want to
sell the car to @. @ can sue / $or speci$ic per$ormance ?
compel / to sell him the car.
thin, about it, and so @ as,s $or !0 days and pays
D0,000 to /. @ decides to buy the car within !0 days.
@e$ore @ is able to buy the car, / sells the car to T. @
can sue / $or damages. @ cannot sue $or speci$ic
per$ormance since the car has been sold to an innocent
purchaser.
: ' right o$ $irst re$usal is di$$erent $rom an option
contract. ' right o$ $irst re$usal is the right to have $irst
opportunity to purchase or the right to meet any other
o$$er. 2n the other hand, an option contact limits the
promissors power to revo,e an o$$er. The right o$ $irst
re$usal is not covered by the Civil Code.
!0 ' right o$ $irst re$usal is a statement by a person to
another that i$ the $ormer decides to sell the ob*ect, the
latter will have the $irst o$$er. Aere, the ob*ect is
determinable. @ut the e(ercise o$ the right to buy is
conditioned on the sellers decision to sell on terms which
are not yet certain.
!1 'ccording to E=uatorial vs. 9a8!air the re.uirement
o$ separate consideration is not applicable in a right o$
$irst re$usal. 'ccording to Dro$essor @alane, this is
peculiar since an option contract is more $irm and yet it
re.uires the payment o$ separate consideration but a
right o$ $irst re$usal does not. Aowever, in Liton"ua vs.
;A the /upreme Court said that in a right o$ $irst re$usal,
the consideration $or the loan or mortgage is already a
part o$ the consideration $or the right o$ $irst re$usal.
! 9n Ang @u vs. ;A, the /C said that an action $or
speci$ic per$ormance will not lie against the promissor.
Aowever, a complaint under 'rticle 1: $or damages may
be $iled i$ the actions o$ the promissor are whimsical. 9n
E=uatorial vs. 9a8!air the right o$ $irst re$usal was
violated when the vendor sold the ob*ect to another
person. The /C in E=uatorial vs. 9a8!air said that an
action $or speci$ic per$ormance may be $iled. E=uatorial
vs. 9a8!air is totally inconsistent with Ang @u vs. ;A.
Professor Ruben F. Balane Pa)e +/4 of +,-
!! The /upreme Court has held (E=uatorial vs. 9a8!air
ParaDa=ue Kings vs. ;A Liton"ua vs. ;A PEP vs. ;A)
that the right o$ $irst re$usal is en$orceable by an action
$or speci$ic per$ormance. 'nd that the actual vendee
may be re.uired to sell the property to the holder o$ the
right o$ $irst re$usal at the price which he bought it.
!% Aowever, in a recent case, Rosencorr vs. ;A (9arc#
/ %00)) the /upreme Court has held that the right o$
$irst re$usal need not be written to be unen$orceable
since it is not included in the /tatute o$ Frauds. 'lso, i$
the vendee is in good $aith, he may not be compelled by
speci$ic per$ormance since he relied on a title which is
clean. The remedy is to go a$ter the vendor.
!0 9n a right o$ $irst re$usal, there is no de$inite o$$er
since the vendor has to option o$ deciding not to sell the
ob*ect. 'lso, in a right o$ $irst re$usal, there is no need
$or a separate consideration. 9n an option contract, there
is a de$inite o$$er. 'ccording to Dro$essor @alane, the
right o$ $irst re$usal is in$erior to an option contract since
there is no de$inite o$$er. Dro$essor @alane does not
understand why an action $or speci$ic per$ormance is
allowed in violations o$ rights o$ $irst re$usal but not in
the case o$ option contracts when the ob*ect is sold to
another person. #hy is the /C giving greater legal e$$ect
to a right o$ $irst re$usal which is more tentative) 'lso,
where the /C get these rules since the right o$ $irst
re$usal is not covered by the Civil Code.
g. 'dvertisements
Art. 1325. ?nless it appears otherwise%
business advertisements of things for sale are not
definite offers% but mere invitations to make an offer.
Art. 1326. Advertisements for bidders are
simpl" invitations to make proposals% and the
advertiser is not bound to accept the highest or lowest
bidder% unless the contrar" appears.
!3 Eost advertisements are simply invitations to ma,e
an o$$er and are not o$$ers in themselves since not all the
necessary terms can $it in the advertisement.
!5 1ven i$ the ad had all the necessary terms, its still an
invitation to ma,e o$$er since there is no de$inite person
to whom the o$$er is being made =public o$$er>.
h. /imulated Contracts
Art. 1345. @imulation of a contract ma" be
absolute or relative. The former takes place when the
parties do not intend to be bound at all3 the latter%
when the parties conceal their true agreement.
Art. 1346. An absolutel" simulated or fictitious
contract is void. A relative simulation% when it does
Professor Ruben F. Balane Pa)e +/* of +,-
not prejudice a third person and is not intended for
an" purpose contrar" to law% morals% good customs%
public order or public polic" binds the parties to their
real agreement.
i. 'bsolutely /imulated =contrato simulado>
!8 'bsolute simulation o$ a contract ta,es place
when the parties do not intent to be bound at all
='rticle 1!%0>.
!: For e(ample, T pretends to sell his car to
avoid ta( liability. Aowever T has no real intention to
sell the car.
%0 'n absolutely simulated or $ictitious contract is
void ='rticle 1!%3>
ii. -elatively /imulated =contrato disimulado>
%1 -elative simulation o$ a contract ta,es place
when the parties conceal their true agreement
='rticle 1!%0>.
% 9n a relatively simulated contract, the parties
enter into a contract but disguise it as another.
%! For e(ample, T has many creditors, and they
are going a$ter Ts car. T cannot donate his car to H
since the creditors will *ust resort to accion pauliana.
/o, T antedates a contract o$ sale, selling his car to H,
e(cept that Ts intention is to donate his car to H.
%% ' relatively simulated contract, when it does
not pre*udice a !
rd
person and is not intended $or any
purpose contrary to law, morals, good customs,
public order or public policy binds the parties to their
real agreement ='rticle 1!%3>.
%0 The law will apply the rules o$ the true
contract and not the ostensible contract.
ii. .5"ect
Art. 1347. All things which are not outside the
commerce of men% including future things% ma" be the object
of a contract. All rights which are not intransmissible ma"
also be the object of contracts.
2o contract ma" be entered into upon future
inheritance e-cept in cases e-pressl" authori$ed b" law.
All services which are not contrar" to law% morals%
good customs% public order or public polic" ma" likewise be
the object of a contract.
Art. 1348. ,mpossible things or services cannot be the
object of contracts.
Professor Ruben F. Balane Pa)e +/. of +,-
Art. 1349. The object of ever" contract must be
determinate as to its kind. The fact that the .uantit" is not
determinate shall not be an obstacle to the e-istence of the
contract% provided it is possible to determine the same%
without the need of a new contract between the parties.
%3 The ob*ect o$ the contract is the prestation. Thus, it is
always the conduct which is to be observed. 9t is not a concrete
ob*ect li,e a car. 9n a contract o$ sale, the ob*ect is the delivery
o$ the ob*ect and not the ob*ect itsel$.
%5 The provisions on ob*ect however blur the distinction
between the ob*ect o$ the contract, the prestation, and the
ob*ect o$ the prestation. 'ccording to Dro$essor @alane, these
provisions are not $atal though.
%8 -e.uisites o$ 2b*ect
1. The ob*ect must be within the commerce o$ man, either
already e(isting or in potency ='rticle 1!%5>
%: #ithin the commerce o$ man means that the ob*ect is
capable o$ appropriation and transmission.
00 The term Oin potencyP means that the ob*ect will
come into e(istence in the $uture.
01 6enerally in reciprocal contracts particularly sales,
the sale o$ $uture things is allowed. For e(ample, it is
possible to sell the $uture harvest o$ a $arm.
0 The coming into being o$ the $uture thing is a
suspensive condition.
0! Emptio rei speratae is a conditional sale. There is a
suspensive condition. 9$ the $uture thing does not come
into e(istence, then there is no contract o$ sale.
0% Emptio spei is the sale o$ a hope. 1ven i$ the $uture
thing does not materiali7e, the buyer must pay since the
buyer is ta,ing a chance. =i.e. sale o$ lotto tic,et>. Aope
is a present thing.
00 /ome $uture things are not allowed to be ob*ects o$
the prestation. The law does not allow contracts on
$uture inheritance.
. The ob*ect must licit, or not be contrary to law, morals, good
customs, public policy or public order ='rticle 1!%5>
!. The ob*ect must be possible ='rticle 1!%8>
03 9$ the ob*ect is impossible, then the contract is void
$or lac, o$ cause.
05 'rticle 1!%8 does not tal, o$ supervening impossibility
which is a mode o$ e(tinguishments.
08 9mpossibility under 'rticle 1!%8 must be actual and
contemporaneous with the ma,ing o$ the contract.
Professor Ruben F. Balane Pa)e +/+ of +,-
%. The ob*ect must be determinate as to its ,ind and
determinable as to its .uantity ='rticle 1!%:>
0: The ob*ect need not be individuali7ed. 9t must be
determinate as to its ,ind or species.
30 The .uantity o$ the ob*ect may be indeterminate, so
long as the right o$ the creditor is not rendered illusory.
0. The ob*ect must be transmissible
31 This is actually a redundancy since this is already in
the re.uisite o$ being within the commerce o$ man.
iii. ;ause
Art. 1350. ,n onerous contracts the cause is
understood to be% for each contracting part"% the prestation
or promise of a thing or service b" the other3 in
remunerator" ones% the service or benefit which is
remunerated3 and in contracts of pure beneficence% the mere
liberalit" of the benefactor.
Art. 1351. The particular motives of the parties in
entering into a contract are different from the cause thereof.
Art. 1352. Contracts without cause% or with unlawful
cause% produce no effect whatever. The cause is unlawful if it
is contrar" to law% morals% good customs% public order or
public polic".
Art. 1353. The statement of a false cause in contracts
shall render them void% if it should not be proved that the"
were founded upon another cause which is true and lawful.
Art. 1354. Although the cause is not stated in the
contract% it is presumed that it e-ists and is lawful% unless
the debtor proves the contrar".
Art. 1355. :-cept in cases specified b" law% lesion or
inade.uac" of cause shall not invalidate a contract% unless
there has been fraud% mistake or undue influence.
3 The cause o$ a contract is the Owhy o$ the contract,P the
immediate and most pro(imate purpose o$ the contract, the
essential reason which impels the contracting parties to enter
into it and which e(plains and *usti$ies the creation o$ the
obligation through such contract.
3! The cause is di$$erent $rom consideration. Consideration in
the 'nglo4'merican sense must always be valuable or capable
o$ pecuniary estimation. Cause, on the other hand, need not be
material at all, and may consist in a moral satis$action $or the
promissor.
3% -e.uisites o$ Cause
Professor Ruben F. Balane Pa)e +// of +,-
1. 9t must e(ist
. 9t must be true
!. 9t must be licit
30 Cause is di$$erent $rom motive. Cause is the pro(imate why
while motive is the ultimate why. For e(ample, ' wants to sell
his house $or D30 E because ' is moving to Canada. @ is willing
to buy the house $or D30 E. 9n this case, the cause $or ' is the
D30 E while the cause $or @ is the house. 's motive is to
dispose o$ the house which he does not need since ' is going to
Canada.
33 ;i,e $ailure o$ or lac, o$ ob*ect, the $ailure o$ cause has an
e$$ect on the contract. 9$ there is no cause or the cause is
illegal, then the contract is void. This is unli,e the lac, o$
consent. #hen consent is lac,ing, the contract is not void. The
contract is merely voidable.
35 General *ule+ Failure o$ motive as a General *ule does
not a$$ect the contract.
38 Exception: Eotive a$$ects the contract when
1. The motive becomes a suspensive condition& or
. The reali7ation o$ the motive is the cause $or the contract
and there is an intervening serious mista,e o$ $act
3: 9n onerous contracts, the cause is the prestation or promise
o$ a thing or service by the other party.
50 9t has been held that, as a mortgage is an accessory
contract, its cause or consideration is the very cause or
consideration o$ the principal contract, $rom which it receives
its li$e, and without which it cannot e(ist as an independent
contract (;#ina -an6 vs. Lic#auco).
51 9n remuneratory contracts, the cause is the service or
bene$it which is remunerated .
5 ' remuneratory contract is one where a party gives
something to another because o$ some service or bene$it
given or rendered by the latter to the $ormer, where such
service or bene$it was not due as a legal obligation.
5! 9n gratuitous contracts, the cause is the mere liberality o$
the bene$actor.
5% +elivery ? $or real contracts
50 Form ? $or $ormal contracts
b. #atural Eleents
53 The natural elements are those which are derived $rom the nature
o$ the contract and ordinarily accompany the same. They are
presumed by law, although they can be e(cluded by the contracting
parties i$ they so desire.
i. -ight to resolve ='rticle 11:1>
ii. #arranties in sales contracts
c. Acci+ental Eleents
55 The accidental elements are those which e(ist only when the parties
e(pressly provide $or them $or the purpose o$ limiting or modi$ying the
normal e$$ects o$ the contract =i.e. conditions, terms, modes>
8 @tages of a Contract
0 Dreparation, conception, or generation, which is the period o$
negotiation and bargaining, ending at the moment o$ agreement o$ the
parties
1 Der$ection or birth o$ the contract, which is the moment when the
parties come to agree on the terms o$ the contract
58 General *ule+ Contracts are per$ected by mere consent ? the
principle o$ consensuality ='rticle 1!10>
5: Exception: -eal contracts, such as deposit, pledge, and
commodatum are not per$ected until the delivery o$ the ob*ect o$ the
obligation ='rticle 1!13>
Consummation or death, which is the $ul$illment or per$ormance o$
the terms agreed upon
0. Classification of Contracts
0 'ccording to +egree o$ +ependence
i. Dreparatory
80 ' preparatory contract is one which has $or its ob*ect the
establishment o$ a condition in law which is necessary as a
preliminary step towards the celebration o$ another subse.uent
contract =i.e. partnership, agency>.
ii. Drincipal
81 ' principal contract is one which can subsist independently
$rom other contracts and whose purpose can be $ul$illed by
themselves =i.e. sales, lease>.
iii. 'ccessory
8 'n accessory contract is one which can e(ist only as a
conse.uence o$, or in relation with, another prior contract =i.e.
pledge, mortgage>.
b. 'ccording to Der$ection
i. Consensual
8! ' consensual contract is one which is per$ected by mere
agreement o$ the parties =i.e. sales, lease>.
ii. -eal
8% ' real contract is one which re.uires not only the consent o$
the parties $or their per$ection, but also the delivery o$ the ob*ect by
1 party to the other =i.e. commodatum, deposit, pledge>.
c. 'ccording to their Form
i. Common or in$ormal
Professor Ruben F. Balane Pa)e +/, of +,-
80 'n in$ormal contract is one which does not re.uire some
particular $orm =i.e. loan, lease>.
ii. /pecial or $ormal
83 ' $ormal contract is one which re.uires some particular $orm
=i.e. donation, chattel mortgage>.
d. 'ccording to Durpose
i. Trans$er o$ ownership =i.e. sale>
ii. Conveyance o$ use =i.e. commodatum>
iii. -endition o$ service =i.e. agency>
e. 'ccording to /ub*ect Eatter
i. Things =i.e. sale, deposit, pledge>
ii. /ervices =i.e. agency, lease o$ services>
$. 'ccording to the Nature o$ the 2bligation
i. @ilateral
85 ' bilateral contract is one which gives rise to reciprocal
obligations $or both parties =i.e. sale, lease>.
ii. "nilateral
88 ' unilateral contract is one which gives rise to an obligation
$or only 1 o$ the parties =i.e. commodatum, gratuitous deposit>.
g. 'ccording to Cause
i. 2nerous
8: 'n onerous contract is one in which each o$ the parties
aspires to procure $or himsel$ a bene$it through the giving o$ an
e.uivalent or compensation =i.e. sale>.
ii. 6ratuitous
:0 ' gratuitous contract is one in which one o$ the parties
proposes to give to the other a bene$it without any e.uivalent or
compensation =i.e. commodatum>.
h. 'ccording to -is,
i. Commutative
:1 ' commutative contract is one in which each o$ the parties
ac.uires an e.uivalent o$ his prestation and such e.uivalent is
pecuniarily appreciable and already determined $rom the moment o$
the celebration o$ the contract =i.e. lease>.
ii. 'leatory
: 'n aleatory contract is one in which each o$ the parties has
to his account the ac.uisition o$ an e.uivalent prestation , but such
e.uivalent, although pecuniarily appreciable, is not yet determined,
at the moment o$ the celebration o$ the contract, since it depends
upon the happening o$ an uncertain event, thus charging the parties
with the ris, o$ loss or gain =i.e. insurance>.
i. 'ccording to Name
Professor Ruben F. Balane Pa)e +/- of +,-
i. Nominate
:! ' nominate contract is one which has a name and is
regulated by special provisions o$ law =i.e. sale, lease>
ii. 9nnominate
Art. 1307. ,nnominate contracts shall be regulated b"
the stipulations of the parties% b" the provisions of Titles , and
,, of this Gook% b" the rules governing the most analogous
nominate contracts% and b" the customs of the place.
:% 'n innominate contract is one that does not have a name
and is not regulated by special provisions o$ law.
:0 ' contract is not void *ust because it has no name. 9t is not
a re.uisite $or validity. ' contract may have no name but it can be
valid provided it has all the elements o$ a contract and all the
restrictions are respected.
:3 % Classes o$ 9nnominate Contracts
:5 do ut des =O9 give that you giveP>
:8 do ut !acias =O9 give that you doP>
:: !acio ut des =O9 do that you giveP>
100 !acio ut !acias =O9 do that you doP>
G. )or o. *ontracts
Art. 1356. Contracts shall be obligator"% in whatever form the"
ma" have been entered into% provided all the essential re.uisites for their
validit" are present. 9owever% when the law re.uires that a contract be in
some form in order that it ma" be valid or enforceable% or that a contract
be proved in a certain wa"% that re.uirement is absolute and
indispensable. ,n such cases% the right of the parties stated in the
following article cannot be e-ercised.
Art. 1357. ,f the law re.uires a document or other special form% as
in the acts and contracts enumerated in the following article% the
contracting parties ma" compel each other to observe that form% once the
contract has been perfected. This right ma" be e-ercised simultaneousl"
with the action upon the contract.
Art. 1358. The following must appear in a public document+
5'7 Acts and contracts which have for their object the creation%
transmission% modification or e-tinguishment of real rights over
immovable propert"3 sales of real propert" or of an interest
therein a governed b" articles '=48% 2o. 6% and '=4)3
567 The cession% repudiation or renunciation of hereditar" rights or of
those of the conjugal partnership of gains3
587 The power to administer propert"% or an" other power which has
for its object an act appearing or which should appear in a public
document% or should prejudice a third person3
5=7 The cession of actions or rights proceeding from an act appearing
in a public document.
All other contracts where the amount involved e-ceeds five
hundred pesos must appear in writing% even a private one. Gut sales of
goods% chattels or things in action are governed b" articles% '=48% 2o. 6
and '=4).
101 General *ule+ There is no need $or a speci$ic $orm, but there must still be some
mani$estation o$ consent.
10 Exception: #hen the written $orm is re.uired
1. For validity
10! 9$ it not written, the same is void.
10% 1(amples are donations ='rticles 5%8, 5%:>, antichresis
='rticle 1!%>, interest in a loan ='rticle 1:03>, sale o$ land by an
agent ='rticle 185%>, contribution o$ immovables in a partnership
='rticle 155!>
. For en$orceability
100 The contract is unen$orceable i$ it is not written.
0 'n agreement that by its terms is not to be per$ormed within
a year $rom the ma,ing thereo$ ='rticle 1%0! =a>>
1 ' special promise to answer $or the debt, de$ault or
miscarriage o$ another ='rticle 1%0! =b>>
'n agreement made in consideration o$ marriage, other than
a mutual promise to marry ='rticle 1%0! =c>>
! 'n agreement $or the sale o$ goods, chattels or things in
action, at a price not less than D000, unless the buyer accepts and
receives part o$ such goods and chattels, or the evidence, or some
o$ them, o$ such things in action, or pay at the time some part o$
the purchase money& but when a sale is made by auction and entry
is made by the auctioneer in his sales boo,, at the time o$ sale, o$
the amount and ,ind o$ property sold, terms o$ sale, price, names
o$ the purchasers and person on whose account the sale is made, it
is a su$$icient memorandum ='rticle 1%0! =d>>
% 'n agreement o$ lease $or a period o$ more than 1 year, or
the sale o$ real property or o$ an interest therein ='rticle 1%0! =e>>
0 ' representation as to the credit o$ a !
rd
person ='rticle 1%0!
=$>>
3 No e(press trusts concerning an immovable or any interest
therein may be proved by parol evidence ='rticle 1%%!>
!. For registrability
103 The $ollowing must appear in a public instrument<
0 'cts and contracts which have $or their ob*ect the creation,
transmission, modi$ication or e(tinguishment o$ real rights over
immovable property& sales o$ real property or o$ an interest therein
governed by 'rticles 1%0! => and 1%00
1 The cession, repudiation or renunciation o$ hereditary rights
or o$ those o$ the con*ugal partnership o$ gains
The power to administer property, or any other power which
has $or its ob*ect an act appearing or which should appear in a
public document, or should pre*udice a !
rd
person
! The cession o$ actions or rights proceeding $rom an act
appearing in a public document
105 Contracts enumerated in 'rticle 1!08 are valid as between
the contracting parties even when they have not been reduced to public
or private writings.
108 1(cept in certain cases where public instruments and
registration are re.uired $or the validity o$ the contract itsel$, the
legali7ation o$ a contract by means o$ a public writing and its entry in
the register are not essential solemnities or re.uisites $or the validity o$
the contract as between the contracting parties, but are re.uired $or
the purposes o$ ma,ing it e$$ective as against !
rd
person.
10: 'rticle 1!05 gives the contracting parties the coercive power
to reciprocally compel the e(ecution o$ the $ormalities re.uired by law,
as soon as the re.uisites $or the validity o$ the contracts are present.
C. Re.oration o. 3nstruents
Art. 1359. 0hen% there having been a meeting of the minds of the
parties to a contract% their true intention is not e-pressed in the
instrument purporting to embod" the agreement% b" reason of mistake%
fraud% ine.uitable conduct or accident% one of the parties ma" ask for the
reformation of the instrument to the end that such true intention ma" be
e-pressed.
,f mistake% fraud% ine.uitable conduct% or accident has prevented a
meeting of the minds of the parties% the proper remed" is not reformation
of the instrument but annulment of the contract.
Art. 1360. The principles of the general law on the reformation of
instruments are hereb" adopted insofar as the" are not in conflict with
the provisions of this Code.
Art. 1361. 0hen a mutual mistake of the parties causes the failure
of the instrument to disclose their real agreement% said instrument ma"
be reformed.
Art. 1362. ,f one part" was mistaken and the other acted
fraudulentl" or ine.uitabl" in such a wa" that the instrument does not
show their true intention% the former ma" ask for the reformation of the
instrument.
Art. 1363. 0hen one part" was mistaken and the other knew or
believed that the instrument did not state their real agreement% but
concealed that fact from the former% the instrument ma" be reformed.
Art. 1364. 0hen through the ignorance% lack of skill% negligence or
bad faith on the part of the person drafting the instrument or of the clerk
or t"pist% the instrument does not e-press the true intention of the
parties% the courts ma" order that the instrument be reformed.
Art. 1365. ,f two parties agree upon the mortgage or pledge of
real or personal propert"% but the instrument states that the propert" is
sold absolutel" or with a right of repurchase% reformation of the
instrument is proper.
Art. 1366. There shall be no reformation in the following cases+
5'7 @imple donations inter vivos wherein no condition is imposed3
567 0ills3
587 0hen the real agreement is void.
Art. 1367. 0hen one of the parties has brought an action to
enforce the instrument% he cannot subse.uentl" ask for its reformation.
Art. 1368. *eformation ma" be ordered at the instance of either
part" or his successors in interest% if the mistake was mutual3 otherwise%
upon petition of the injured part"% or his heirs and assigns.
Art. 1369. The procedure for the reformation of instrument shall
be governed b" rules of court to be promulgated b" the @upreme Court.
110 2nce the minds o$ the contracting parties meet, a valid contract e(ists, whether
the agreement is reduced to writing or not. There are instances however, where in
reducing their agreements to writing, the true intention o$ the contracting parties are not
correctly e(pressed in the document, either by reason o$ mista,e, $raud, ine.uitable
conduct or accident. 9t is in such cases that re$ormation o$ instruments is proper. The
action $or such relie$ rests on the theory that the parties came to an understanding, but
in reducing it to writing, through mutual mista,e, $raud or some other reason, some
provision was omitted or mista,enly inserted, and the action to change the instrument so
as to ma,e it con$orm to the contract agreed upon.
111 -e$ormation +istinguished $rom 'nnulment
11 The action $or re$ormation o$ instruments presupposes that there is
a valid e(isting contract between the parties, and only the document or
instrument which was drawn up and signed by them does not correctly
e(press the terms o$ their agreement. 2n the other hand, i$ the minds o$
the parties did not meet, or i$ the consent o$ either one was vitiated by
violence or intimidation or mista,e or $raud, so that no real and valid
contract was made, the action is $or annulment.
11! 'nnulment involves a complete nulli$ication o$ the contract while
re$ormation gives li$e to it upon certain corrections.
11% 2peration and 1$$ect o$ -e$ormation
110 "pon re$ormation o$ an instrument, the general rule is that it
relates bac, to, and ta,es e$$ect $rom the time o$ its original e(ecution,
especially as between the parties.
113 -e.uisites o$ -e$ormation
1. There must have been a meeting o$ the minds upon the contract
. The instrument or document evidencing the contract does not e(press the
true agreement between the parties
!. The $ailure o$ the instrument to e(press the agreement must be due to
mista,e, $raud, ine.uitable conduct or accident
115 -e.uisites o$ Eista,e
a. That the mista,e is one o$ $act
118 #henever an instrument is drawn with the intention
o$ carrying an agreement previously made, but which, due to
mista,e or inadvertence o$ the dra$tsman or cler,, does not
carry out the intention o$ the parties, but violates it, there is a
ground to correct the mista,e by re$orming the instrument.
b. That it was common to both parties
11: ' written instrument may be re$ormed where there is
a mista,e on 1 side and $raud or ine.uitable conduct on the
other, as where 1 party to an instrument has made a mista,e
and the other ,nows it and conceals the truth $rom him.
10 The mista,e o$ 1 party must re$er to the contents o$
the instrument and not the sub*ect mater or the principal
conditions o$ the agreement. 9n the latter case, an action $or
annulment is the proper remedy.
11 9$ parties agree upon the mortgage or pledge o$
real property or personal property, but the instrument states
that the property is sold absolutely or with a right o$ repurchase,
re$ormation is proper.
c. The proo$ o$ mutual mista,e must be clear and convincing
1 ;imitations o$ -e$ormation
1. -e$ormation is not proper in the $ollowing cases<
a. /imple donations inter vivos wherein no condition is imposed
b. #ills
c. #hen the real agreement is void
. #ho may as, $or re$ormation
a. 9$ the mista,e is mutual
1! -e$ormation may be ordered at the instance o$ either party
or his successors in interest
b. 9$ the mista,e is not mutual
1% -e$ormation may be ordered upon petition o$ the in*ured
party or his heirs and assigns
!. 1$$ect o$ en$orcing an action
10 #hen one o$ the parties has brought an action to en$orce the
instrument, he cannot subse.uently as, $or its re$ormation.
D. 3nterpretation o. *ontracts
13 #here the parties have reduced their contract into writing, the contents o$ the
writing constitutes the sole repository o$ the terms o$ the agreement between the
parties. #hatever is not $ound in the writing must be understood as waived and
abandoned. 6enerally, there$ore, there can be no evidence o$ the terms o$ the contract
other than the contents o$ the writing, unless it is alleged and proved that the intention
o$ the parties is otherwise.
Art. 1370. ,f the terms of a contract are clear and leave no doubt
upon the intention of the contracting parties% the literal meaning of its
stipulations shall control.
,f the words appear to be contrar" to the evident intention of the
parties% the latter shall prevail over the former.
15 #hen the terms o$ the agreement are so clear and e(plicit that they do not *usti$y
an attempt to read into it any alleged intention o$ the parties, the terms are to be
understood literally *ust as they appear on the $ace o$ the contract.
18 #hen the true intent and agreement o$ the parties is established, it must be given
e$$ect and prevail over the bare words o$ the written agreement.
Art. 1371. ,n order to judge the intention of the contracting
parties% their contemporaneous and subse.uent acts shall be principall"
considered.
Art. 1372. 9owever general the terms of a contract ma" be% the"
shall not be understood to comprehend things that are distinct and cases
that are different from those upon which the parties intended to agree.
Art. 1373. ,f some stipulation of an" contract should admit of
several meanings% it shall be understood as bearing that import which is
most ade.uate to render it effectual.
Art. 1374. The various stipulations of a contract shall be
interpreted together% attributing to the doubtful ones that sense which
ma" result from all of them taken jointl".
1: #here the instrument is susceptible o$ interpretations, 1 which will ma,e it
invalid and illegal, and another which will ma,e it valid and legal, the latter interpretation
should be adopted.
1!0 9n the construction o$ an instrument where there are several provisions or
particulars, such a construction is, i$ possible, to be adopted as will give e$$ect to all.
Art. 1375. 0ords which ma" have different significations shall be
understood in that which is most in keeping with the nature and object of
the contract.
Art. 1376. The usage or custom of the place shall be borne in
mind in the interpretation of the ambiguities of a contract% and shall fill
the omission of stipulations which are ordinaril" established.
1!1 #hen there is doubt as to the meaning o$ any particular language, it should be
determined by a consideration o$ the general scope and purpose o$ the instrument in
which it occurs.
1! 'n instrument may be construed according to usage in order to determine its true
character.
Art. 1377. The interpretation of obscure words or stipulations in a
contract shall not favor the part" who caused the obscurit".
1!! The party who draws up a contract in which obscure terms or clauses appear, is
the one responsible $or the obscurity or ambiguity& they must there$ore be construed
against him.
Art. 1378. 0hen it is absolutel" impossible to settle doubts b" the
rules established in the preceding articles% and the doubts refer to
incidental circumstances of a gratuitous contract% the least transmission
of rights and interests shall prevail. ,f the contract is onerous% the doubt
shall be settled in favor of the greatest reciprocit" of interests.
,f the doubts are cast upon the principal object of the contract in
such a wa" that it cannot be known what ma" have been the intention or
will of the parties% the contract shall be null and void.
Art. 1379. The principles of interpretation stated in *ule '68
of
the *ules of Court shall likewise be observed in the construction of
contracts.
R1$e 1604 R1$e" -' C-1(%
Sec. 10. 8nterpretation of a writing according to its legal meaning% ? T#e
$*.1.e -' !()%)*. )" %- 2e )*%e(0(e%e+ cc-(+)*. %- %#e $e.$ /e*)*. )% 2e(" )* %#e
0$ce -' )%" e;ec1%)-*4 1*$e"" %#e 0(%)e" )*%e*+e+ -%#e(!)"e.
Sec. 11. 8nstrment constred so as to give effect to all provisions% ? I* %#e
c-*"%(1c%)-* -' * )*"%(1/e*% !#e(e %#e(e (e "e5e($ 0(-5)")-*" -( 0(%)c1$(". "1c#
c-*"%(1c%)-* )"4 )' 0-"")2$e4 %- 2e +-0%e+ " !)$$ .)5e e''ec% %- $$.
Sec. 12. 8nterpretation according to intention' general and particlar provisions%
? I* %#e c-*"%(1c%)-* -' * )*"%(1/e*%4 %#e )*%e*%)-* -' %#e 0(%)e" )" %- 2e 01("1e+>
*+ !#e* .e*e($ *+ 0(%)c1$( 0(-5)")-* (e )*c-*")"%e*%4 %#e $%%e( )" 0(/-1*%
%- %#e '-(/e(. S- 0(%)c1$( )*%e*% !)$$ c-*%(-$ .e*e($ -*e %#% )" )*c-*")"%e*% !)%#
)%.
1!% #hen a general and a particular provision are inconsistent, the particular
provision will control.
Sec. 16. 8nterpretation according to circmstances% ? F-( %#e 0(-0e(
c-*"%(1c%)-* -' * )*"%(1/e*%4 %#e c)(c1/"%*ce" 1*+e( !#)c# )% !" /+e4 )*c$1+)*.
%#e ")%1%)-* -' %#e "12Bec% %#e(e-' *+ -' %#e 0(%)e" %- )%4 /, 2e "#-!*4 "- %#% %#e
B1+.e /, 2e 0$ce+ )* %#e 0-")%)-* -' %#-"e !#-"e $*.1.e #e )" %- )*%e(0(e%.
Now, -ule 1!0, JJ1041:.

Sec. 1D. <ecliar signification of terms% ? T#e %e(/" -' !()%)*. (e 0(e"1/e+
%- #5e 2ee* 1"e+ )* %#e)( 0()/(, *+ .e*e($ cce0%%)-*4 21% e5)+e*ce )" +/)"")2$e
%- "#-! %#% %#e, #5e $-c$4 %ec#*)c$4 -( -%#e(!)"e 0ec1$)( ").*)')c%)-*4 *+ !e(e
"- 1"e+ *+ 1*+e("%--+ )* %#e 0(%)c1$( )*"%*ce4 )* !#)c# c"e %#e .(ee/e*% /1"%
2e c-*"%(1e+ cc-(+)*.$,.
Sec. 1E. Written words control printed% ? W#e* * )*"%(1/e*% c-*")"%" 0(%$, -'
!()%%e* !-(+" *+ 0(%$, -' 0()*%e+ '-(/4 *+ %#e %!- (e )*c-*")"%e*%4 %#e '-(/e(
c-*%(-$" %#e $%%e(.
Sec. 18. EFperts and interpreters to !e sed in eFplaining certain writings% ?
W#e* %#e c#(c%e(" )* !#)c# * )*"%(1/e*% )" !()%%e* (e +)'')c1$% %- 2e +ec)0#e(e+4 -(
%#e $*.1.e )" *-% 1*+e("%--+ 2, %#e c-1(%4 %#e e5)+e*ce -' 0e("-*" "&)$$e+ )*
+ec)0#e()*. %#e c#(c%e("4 -( !#- 1*+e("%*+ %#e $*.1.e4 )" +/)"")2$e %- +ec$(e
%#e c#(c%e(" -( %#e /e*)*. -' %#e $*.1.e.
Sec. 1G. "f two constrctions, which preferred% ? W#e* %#e %e(/" -' *
.(ee/e*% #5e 2ee* )*%e*+e+ )* +)''e(e*% "e*"e 2, %#e +)''e(e*% 0(%)e" %- )%4 %#%
"e*"e )" %- 0(e5)$ .)*"% e)%#e( 0(%, )* !#)c# #e "100-"e+ %#e -%#e( 1*+e("%--+ )%4
*+ !#e* +)''e(e*% c-*"%(1c%)-*" -' 0(-5)")-* (e -%#e(!)"e eI1$$, 0(-0e(4 %#% )" %-
2e %&e* !#)c# )" %#e /-"% '5-(2$e %- %#e 0(%, )* !#-"e '5-( %#e 0(-5)")-* !"
/+e.
Sec. 17. Constrction in favor of natral right% ? W#e* * )*"%(1/e*% )" eI1$$,
"1"ce0%)2$e -' %!- )*%e(0(e%%)-*"4 -*e )" '5-( -' *%1($ ().#% *+ %#e -%#e( .)*"% )%4
%#e '-(/e( )" %- 2e +-0%e+.
Sec. 1H. 8nterpretation according to sage% ? A* )*"%(1/e*% /, 2e c-*"%(1e+
cc-(+)*. %- 1".e4 )* -(+e( %- +e%e(/)*e )%" %(1e c#(c%e(.
:. De.ecti(e *ontracts
1!0 The remaining chapters deal with de$ective contracts. The Civil Code made ma*or
and important improvements on this topic. "nli,e the /panish Code, the de$ective
contracts were ambiguous and had unclear classi$ications. They were simply void or
voidable. Aere, in our present code, there are $or types o$ de$ective contracts, $rom the
serious to less serious, in the $ollowing order<
1!3 Aowever, our Code still has some imper$ections. 's pointed out by Tolentino,
there must be a Orelatively voidP contract. For e(ample, in an assignment o$ lease
without authority, this is void as to third parties, but valid as between the parties.
1!5 There have been several cases decided by our /upreme Court wherein a chattel
mortgage over real property was declared void as to third parties but valid as between
the parties.
1!8 #hatever imper$ections the Code has, it still is better than other codes on this
topic.
Void
-escissible
"nen$orceable
Voidable
4 *escissible Contracts
Art. 1380. Contracts validl" agreed upon ma" be rescinded in
the cases established b" law.
Art. 1381. The following contracts are rescissible+
5'7 Those which are entered into b" guardians whenever the wards
whom the" represent suffer lesion b" more than one/fourth of
the value of the things which are the object thereof3
567 Those agreed upon in representation of absentees% if the latter
suffer the lesion stated in the preceding number3
587 Those undertaken in fraud of creditors when the latter cannot in
an" other manner collect the claims due them3
5=7 Those which refer to things under litigation if the" have been
entered into b" the defendant without the knowledge and
approval of the litigants or of competent judicial authorit"3
5)7 All other contracts speciall" declared b" law to be subject to
rescission.
Art. 1382. Pa"ments made in a state of insolvenc" for
obligations to whose fulfillment the debtor could not be compelled at
the time the" were effected% are also rescissible.
Art. 1383. The action for rescission is subsidiar"3 it cannot be
instituted e-cept when the part" suffering damage has no other legal
means to obtain reparation for the same.
Art. 1384. *escission shall be onl" to the e-tent necessar" to
cover the damages caused.
Art. 1385. *escission creates the obligation to return the things
which were the object of the contract% together with their fruits% and
the price with its interest3 conse.uentl"% it can be carried out onl"
when he who demands rescission can return whatever he ma" be
obliged to restore.
2either shall rescission take place when the things which are
the object of the contract are legall" in the possession of third persons
who did not act in bad faith.
,n this case% indemnit" for damages ma" be demanded from the
person causing the loss.
Art. 1386. *escission referred to in 2os. ' and 6 of article '8D'
shall not take place with respect to contracts approved b" the courts.
Art. 1387. All contracts b" virtue of which the debtor alienates
propert" b" gratuitous title are presumed to have been entered into in
fraud of creditors% when the donor did not reserve sufficient propert"
to pa" all debts contracted before the donation.
Alienations b" onerous title are also presumed fraudulent when
made b" persons against whom some judgment has been issued. The
decision or attachment need not refer to the propert" alienated% and
need not have been obtained b" the part" seeking the rescission.
,n addition to these presumptions% the design to defraud
creditors ma" be proved in an" other manner recogni$ed b" the law of
evidence.
Art. 1388. 0hoever ac.uires in bad faith the things alienated in
fraud of creditors% shall indemnif" the latter for damages suffered b"
them on account of the alienation% whenever% due to an" cause% it
should be impossible for him to return them.
,f there are two or more alienations% the first ac.uirer shall be
liable first% and so on successivel".
Art. 1389. The action to claim rescission must be commenced
within four "ears.
Aor persons under guardianship and for absentees% the period of
four "ears shall not begin until the termination of the former;s
incapacit"% or until the domicile of the latter is known.
1!: This is not be to con$used with resolution, discussed in 'rticle 11:1.
This chapter on rescissible contracts is the proper rescissible. 'ccording
to /caevola, rescission is a process designated to render ine$$icacious a
contract validly entered into and normally binding, by reason o$ e(ternal
conditions, causing an economic pre*udice to a party or to his creditors.
1%0 ' rescissible contract is a contract which is valid because it contains
all the essential re.uisites prescribed by law, but which is de$ective
because o$ in*ury or damage to either o$ the contracting parties or to !
rd
persons, as a conse.uence o$ which it may be rescinded by means o$ a
proper action $or rescission.
1%1 -escission is a remedy granted by law to the contracting parties,
and even to !
rd
persons, to secure the reparation o$ damages caused to
them by a contract, even i$ the same should be valid, by means o$ the
restoration o$ things to their condition prior to the celebration o$ the
contract.
1% -e.uisites o$ -escission
a. The contact must be a rescissible contract under 'rticle 1!81 or 'rticle
1!8
1%! The $ollowing contracts are rescissible
i. Those entered into by guardians whenever the whom they
represent su$$er lesion by more than _ o$ the value o$ things
which are the ob*ect thereo$ ='rticle 1!81 =1>>
1%% -escission shall not ta,e place with respect to
contracts approved by the court ='rticle 1!83>.
1%0 's a rule, when a guardian enters into a contract
involving the disposition o$ the wards property, the guardian
must secure the approval o$ the guardianship court. '
guardian is only authori7ed to manage the estate o$ the
ward. ' guardian has no power to dispose o$ any portion o$
the estate without approval o$ the court. 9$ more than acts
o$ mere administration are involved, *udicial approval is
necessary.
1%3 9n case o$ sale, mortgage, or other encumbrance o$
any portion o$ the estate which does not have *udicial
approval is an unen$orceable contract ='rticle 1%0! =1>>.
1%5 There$ore, 'rticle 1!81 =1> is limited to contracts
which constitute mere acts o$ administration =i.e. the
purchase o$ e.uipment $or the cultivation o$ lands, purchase
o$ materials $or repair o$ buildings, etc.>.
1%8 ;esion is very di$$icult to apply in practice.
1%: For e(ample, ' is the agent o$ @. @ owns land worth
D10 E. ' sells the land $or D5 E. From the $acts, the lesion
su$$ered by @ is !0N. 9n practice, are you sure that D10 E
is the $air mar,et value o$ the land. #hat i$ the situation is
urgent and that property must be disposed o$ right away)
100 'nother e(ample, ' is the agent o$ @. @ owns land
worth D10 E. C wants to buy the land. C is willing to pay D
5 E ? lump sum payment. + is willing to pay D 10 E but on
installments.
ii. Those agreed upon in representation o$ absentees, i$ the
absentee su$$ers lesion by more than _ o$ the value o$ things
which are the ob*ect thereo$ ='rticle 1!81 =>>
101 -escission shall not ta,e place with respect to
contracts approved by the court ='rticle 1!83>.
10 's a rule, when the legal representative o$ an
absentee enters into a contract involving the disposition o$
the absentees property, he must secure the approval o$ the
court. ' legal representative is only authori7ed to manage
the estate o$ the absentee. Ae has no power to dispose o$
any portion o$ the estate without approval o$ the court. 9$
more than acts o$ mere administration are involved, *udicial
approval is necessary.
10! 9n case o$ sale, mortgage, or other encumbrance o$
any portion o$ the estate which does not have *udicial
approval is an unen$orceable contract ='rticle 1%0! =1>>.
10% There$ore, 'rticle 1!81 => is limited to contracts
which constitute mere acts o$ administration =i.e. the
purchase o$ e.uipment $or the cultivation o$ lands, purchase
o$ materials $or repair o$ buildings, etc.>.
100 ;esion is very di$$icult to apply in practice.
103 For e(ample, ' is the agent o$ @. @ owns land worth
D10 E. ' sells the land $or D5 E. From the $acts, the lesion
su$$ered by @ is !0N. 9n practice, are you sure that D10 E
is the $air mar,et value o$ the land. #hat i$ the situation is
urgent and that property must be disposed o$ right away)
105 'nother e(ample, ' is the agent o$ @. @ owns land
worth D10 E. C wants to buy the land. C is willing to pay D
5 E ? lump sum payment. + is willing to pay D 10 E but on
installments.
iii. Those underta,en in $raud o$ creditors when the creditors
cannot in any other manner collect the claims due them ='rticle
1!81 =!>>
108 This is an e(ception to the principle o$ relativity o$
contracts.
10: Creditors, a$ter having pursued the property in
possession o$ the debtor to satis$y their claims may e(ercise
all the rights and bring all the actions o$ the latter $or the
same purpose, save those which are inherent in his person&
they may also impugn the acts which the debtor may have
done to de$raud them ='rticle 1155>.
130 Creditors are protected in cases o$ contracts intended
to de$raud them ='rticle 1!1!>.
131 9n determining whether or not a certain conveyance
is $raudulent, the .uestion in every case is whether the
conveyance was a 5ona !ide transaction or tric, and
contrivance to de$eat creditors, or whether it conserves to
the debtor a special right.
13 'll contracts by virtue o$ which the debtor alienates
property by gratuitous tile are presumed to have been
entered into in order to de$raud creditors, when the donor
did not reserve su$$icient property to pay all debts contracted
be$ore the donation ='rticle 1!85, 1
st
B>.
13! 'lienations by onerous title are also presumed
$raudulent when made by persons against whom some
*udgment has been rendered in any instance or some writ o$
attachment has been issued. The decision or attachment
need not re$er to the property alienated, and need not have
been obtained by the party see,ing the rescission ='rticle
1!85,
nd
B>.
13% @adges o$ Fraud
1. The $act that the consideration o$ the conveyance is
inade.uate
. ' trans$er made by a debtor a$ter suit has begun and
while it is pending against him
!. ' sale upon credit by an insolvent debtor
%. 1vidence o$ large indebtedness or complete insolvency
0. The trans$er o$ all or nearly all o$ his property by a
debtor, especially when he is insolvent or greatly
embarrassed $inancially
3. The $act that the trans$er is made between $ather and
son when there are present any o$ the above
circumstances
5. The $ailure o$ the vendee to ta,e e(clusive possession o$
all the property
iv. Those which re$er to things under litigation i$ they have been
entered into by the de$endant without the ,nowledge and
approval o$ the litigants or o$ competent *udicial authority
='rticle 1!81 =%>>
130 'rticle 1!81 =%> re$ers to a contract e(ecuted by the
de$endant in a suit involving the ownership or possession o$
a thing, when such contract is made without the ,nowledge
and approval o$ the plainti$$ or court.
133 's in the case o$ a contract in $raud o$ creditors, the
remedy o$ rescission in this case is given to a !
rd
person who
is not a party to the contract. The purpose is to protect the
plainti$$.
v. 'll other contracts specially declared by law to be the sub*ect o$
rescission ='rticle 1!81 =0>>
135 The $ollowing provision in sales are e(amples o$
rescissible contracts declared by law ? 'rts 103, 10!%,
10!8, 10!:, 10%0, 1003, 1030, 1035, 130:.
138 Dayments made in a state o$ insolvency $or
obligations to whose $ul$illment the debtor could not be
compelled at the time they were e$$ected ='rticle 1!8>
b. The person as,ing $or rescission must have no other legal means to
obtain reparation $or the damages su$$ered by him ='rticle 1!8!>
c. The person demanding rescission must be able to return whatever he
may be obliged to restore i$ rescission is granted ='rticle 1!80, 1
st
par>
13: This re.uisite is only applicable i$ the one who su$$ers the
lesion is a party to the contract.
150 This re.uisite does not apply when a de$rauded creditor
resorts to accion pauliana.
d. The things which are the ob*ect o$ the contract must not have passed
legally to the possession o$ a !
rd
person acting in good $aith ='rticle
1!80,
nd
B>
151 #hoever ac.uires in bad $aith the things alienated in $raud o$
creditors, shall indemni$y the latter $or damages su$$ered by them
on account o$ the alienation, whenever, due to any cause, it should
be impossible $or him to return them ='rticle 1!88,1
st
B>.
15 9$ there are or more alienations, the 1
st
ac.uirer shall be
liable 1
st
, and so on successively ='rticle 1!88,
nd
B>.
e. The action $or rescission must be brought within the prescriptive period
o$ % years ='rticle 1!8:>
. >oidable Contracts
Art. 1390. The following contracts are voidable or annullable%
even though there ma" have been no damage to the contracting
parties+
5'7 Those where one of the parties is incapable of giving consent
to a contract3
567 Those where the consent is vitiated b" mistake% violence%
intimidation% undue influence or fraud.
These contracts are binding% unless the" are annulled b" a
proper action in court. The" are susceptible of ratification.
Art. 1391. The action for annulment shall be brought within
four "ears.
This period shall begin+
,n cases of intimidation% violence or undue influence% from the
time the defect of the consent ceases.
,n case of mistake or fraud% from the time of the discover" of
the same.
And when the action refers to contracts entered into b" minors
or other incapacitated persons% from the time the guardianship
ceases.
Art. 1392. *atification e-tinguishes the action to annul a
voidable contract.
Art. 1393. *atification ma" be effected e-pressl" or tacitl". ,t is
understood that there is a tacit ratification if% with knowledge of the
reason which renders the contract voidable and such reason having
ceased% the person who has a right to invoke it should e-ecute an act
which necessaril" implies an intention to waive his right.
Art. 1394. *atification ma" be effected b" the guardian of the
incapacitated person.
Art. 1395. *atification does not re.uire the conformit" of the
contracting part" who has no right to bring the action for annulment.
Art. 1396. *atification cleanses the contract from all its defects
from the moment it was constituted.
Art. 1397. The action for the annulment of contracts ma" be
instituted b" all who are thereb" obliged principall" or subsidiaril".
9owever% persons who are capable cannot allege the incapacit" of
those with whom the" contracted3 nor can those who e-erted
intimidation% violence% or undue influence% or emplo"ed fraud% or
caused mistake base their action upon these flaws of the contract.
Art. 1398. An obligation having been annulled% the contracting
parties shall restore to each other the things which have been the
subject matter of the contract% with their fruits% and the price with its
interest% e-cept in cases provided b" law.
,n obligations to render service% the value thereof shall be the
basis for damages.
Art. 1399. 0hen the defect of the contract consists in the
incapacit" of one of the parties% the incapacitated person is not
obliged to make an" restitution e-cept insofar as he has been
benefited b" the thing or price received b" him.
Art. 1400. 0henever the person obliged b" the decree of
annulment to return the thing can not do so because it has been lost
through his fault% he shall return the fruits received and the value of
the thing at the time of the loss% with interest from the same date.
Art. 1401. The action for annulment of contracts shall be
e-tinguished when the thing which is the object thereof is lost
through the fraud or fault of the person who has a right to institute
the proceedings.
,f the right of action is based upon the incapacit" of an" one of
the contracting parties% the loss of the thing shall not be an obstacle
to the success of the action% unless said loss took place through the
fraud or fault of the plaintiff.
Art. 1402. As long as one of the contracting parties does not
restore what in virtue of the decree of annulment he is bound to
return% the other cannot be compelled to compl" with what is
incumbent upon him.
15! ' voidable contract is a contract in which all o$ the essential
elements $or validity are present, but the element o$ consent is vitiated
either by lac, $ legal capacity o$ 1 o$ the contracting parties or by mista,e,
violence, intimidation, undue in$luence, or $raud.
15% Voidable contracts are binding unless they are annulled
by a proper action court. They are susceptible to con$irmation.
150 There is a di$$erence between con$irmation and rati$ication.
Con$irmation is the process o$ curing the de$ect o$ a voidable contract.
-ati$ication is the process o$ curing contracts which are de$ective
because they were entered into without authority.
153 The $ollowing contracts are voidable or annullable, even
though there may have been no damage to the contracting parties
a. Those where one o$ the parties is incapable o$ giving consent to a
contract
155 The $ollowing cannot give consent to a contract ='rticle
1!5><
i. Enemancipated minors
158 #here necessaries are sold and delivered to a minor
or other person without capacity to act, he must pay a
reasonable price there$ore. Necessaries include everything
that is indispensable $or sustenance, dwelling, clothing, and
medical attendance.
15: Contracts e$$ected by minors who have already
passed the age o$ puberty and adolescence and are near the
adult age, when they pretend to have already reached the
age o$ ma*ority, while in $act they have not, are valid, and
cannot be permitted a$terwards to e(cuse themselves $rom
compliance with obligations assumed by them or see, their
annulment. This is in consonance with the rules o$ estoppel.
(9ercado vs. Espiritu).
180 Aowever in -raganza v De >illa, the /C said that the
misrepresentation o$ an incapacitate person does not estop
him $rom denying that he was o$ age, or $rom asserting that
he was under age, at the time he entered into the contract.
'ccording to Dro$essor @alane, this view is very logical. 9$
the minor is too young to enter into contracts, he is too
young to be estopped.
ii. Insane or demented persons and dea! mutes 4#o do not 6no4
#o4 to 4rite
Art. 1328. Contracts entered into during a lucid
interval are valid. Contracts agreed to in a state of
drunkenness or during a h"pnotic spell are voidable.
Art. 1329. The incapacit" declared in article '86C
is subject to the modifications determined b" law% and is
understood to be without prejudice to special
dis.ualifications established in the laws.
b. Those where the consent is vitiated by mista,e, violence, intimidation,
undue in$luence or $raud
Art. 1330. A contract where consent is given through
mistake% violence% intimidation% undue influence or fraud is
voidable.
i. Eista,e
Art. 1331. ,n order that mistake ma" invalidate
consent% it should refer to the substance of the thing which
is the object of the contract% or to those conditions which
have principall" moved one or both parties to enter into the
contract .
<istake as to the identit" or .ualification of one of the
parties will vitiate consent onl" when such identit" or
.ualifications have been the principal cause of the contract.
A simple mistake of account shall give rise to its
correction.
Art. 1332. 0hen one of the parties is unable to read%
or if the contract is in a language not understood b" him% and
mistake or fraud is alleged% the person enforcing the
contract must show that the terms thereof have been full"
e-plained to the former.
Art. 1333. There is no mistake if the part" alleging it
knew the doubt% contingenc" or risk affecting the object of
the contract.
Art. 1334. <utual error as to the legal effect of an
agreement when the real purpose of the parties is
frustrated% ma" vitiate consent.
Art. 1342. <isrepresentation b" a third person does
not vitiate consent% unless such misrepresentation has
created substantial mistake and the same is mutual.
Art. 1343. <isrepresentation made in good faith is not
fraudulent but ma" constitute error.
ii. Violence
Art. 1335$ 1
st
%. There is violence when in order to
wrest consent% serious or irresistible force is emplo"ed.
181 Violence shall annul the obligation, although it may
been employed by a !
rd
person who did not ta,e part in the
contract ='rticle 1!!3>.
18 -e.uisites o$ Violence
1. 9rresistible physical $orce is employed
. The $orce is the determining cause $or giving consent
iii. 9ntimidation
Art. 1335$ 2
n+
%. There is intimidation when one of the
contracting parties is compelled b" a reasonable and well/
grounded fear of an imminent and grave evil upon his person
or propert"% or upon the person or propert" of his spouse%
descendants or ascendants% to give his consent.
18! -e.uisites o$ 9ntimidation
0 The threat must be the determining cause $or giving
consent
1 The threatened act is un*ust and unlaw$ul
18% ' threat to en$orce ones claim through
competent authority, i$ the claim is *ust or legal, does not
vitiate consent ='rticle 1!!0, %
th
B>.
180 The threat to en$orce a right, should not be
aimed at a result which is contrary to law or morals, or
which is un*ust and contrary to good $aith. 'lthough it is
law$ul to e(ercise rights, it is not always law$ul to use
them $or purposes di$$erent $rom those $or which they
were created. Thus, although it is law$ul to report
crimes, the threat to report it may be illicit i$ the purpose
is not to cooperate in the discovery and prosecution o$
the crime, but to obtain some prestation $rom the culprit
which otherwise could not be obtained and which does
not constitute indemnity $or damages $or the crime
committed.
183 Thus, the rule is, generally, a threat to do
something law$ul does not constitute intimidation.
Example: 9$ you dont marry my daughter, 9ll report you
to the 9@D. This is not unlaw$ul because the person did
commit immorality.
/ometimes, though, it may constitute intimidation.
Example: ' saw @ commit murder. ' threatened @ that
he will report him to the police unless @ gives ' his
house. This is intimidation because there is no
connection between the crime and the contract.
The threat is real and serious
185 For e(ample the threat must be to ,ill you or
burn your house and not merely to pinch you.
! The threat produces a well4grounded $ear that the
person ma,ing it can and will in$lict harm
188 To determine the degree o$ intimidation, the
age, se(, and condition o$ the person shall be borne in
mind ='rticle 1!!0, !
rd
B>.
18: For e(ample, a 50year old man who is bed
ridden and says that he will ,ill you does not produce a
well4grounded $ear.
1:0 9ntimidation shall annul the obligation,
although it may have been employed by a !
rd
person who
did not ta,e part in the contract ='rticle 1!!3>.
iv. "ndue in$luence
Art. 1337. There is undue influence when a person
takes improper advantage of his power over the will of
another% depriving the latter of a reasonable freedom of
choice. The following circumstances shall be considered+ the
confidentialit"% famil"% spiritual and other relations between
the parties% or the fact that the person alleged to have been
undul" influenced was suffering from mental weakness% or
was ignorant or in financial distress.
v. Fraud
Art. 1332. 0hen one of the parties is unable to read%
or if the contract is in a language not understood b" him% and
mistake or fraud is alleged% the person enforcing the
contract must show that the terms thereof have been full"
e-plained to the former.
Art. 1338. There is fraud when% through insidious
words or machinations of one of the contracting parties% the
other is induced to enter into a contract which% without
them% he would not have agreed to.
1:1 This is ,nown as deceit or dolo causante. This is
di$$erent $rom dolo incidente which means $raud on things which
would not prevent you $rom entering into a contract but may
hold the other liable $or damages.
1: -e.uisites o$ Fraud
1. Fraud is employed by 1 party on the other ='rticles 1!%,
1!%%>
. The other party was induced to enter into the contract
='rticle 1!!8>
!. The $raud must be serious ='rticle 1!%%>
%. There is damage or in*ury caused
Art. 1339. Aailure to disclose facts% when there is a
dut" to reveal them% as when the parties are bound b"
confidential relations% constitutes fraud.
Art. 1340. The usual e-aggerations in trade% when the
other part" had an opportunit" to know the facts% are not in
themselves fraudulent.
Art. 1341. A mere e-pression of an opinion does not
signif" fraud% unless made b" an e-pert and the other part"
has relied on the former(s special knowledge.
Art. 1342. <isrepresentation b" a 8
rd
person does not
vitiate consent% unless such misrepresentation has created
substantial mistake and the same is mutual.
Art. 1343. <isrepresentation made in good faith is not
fraudulent but ma" constitute error.
Art. 1344. ,n order that fraud ma" make a contract
voidable% it should be serious and should not have been
emplo"ed b" both contracting parties.
,ncidental fraud onl" obliges the person emplo"ing it
to pa" damages.
1:! 9$ a !
rd
person should commit violence or intimidation
on 1 o$ the contracting parties and this vitiates the contracting
partys consent, then the contract may be annulled ='rticle
1!!3>. @y analogy, i$ a !
rd
person should e(ert undue in$luence
on 1 o$ the contracting parties and this vitiates the consent o$
the contracting party, then the contract may be annulled.
Aowever, i$ the !
rd
party commits $raud, damages is the only
remedy unless the $raud committed by the !
rd
person has
created a mutual substantial mista,e ='rticle 1!%>.
1:% -ules -egarding Voidable Contracts
0 Voidable contracts are e$$ective unless set aside ='rticle 1!:0>.
1 The validity o$ a voidable contract can only be assailed in a suit $or
that purpose =i.e. complaint or counterclaim>.
1:0 The action $or annulment o$ contracts may be instituted by
all who are thereby obliged principally or subsidiarily. Aowever,
persons who are capable cannot allege the incapacity o$ those with
whom they contracted& nor can those who e(erted intimidation,
violence, or undue in$luence, or employed $raud, or caused ,mista,e
base their action upon these $laws o$ the contract ='rticle 1!:5>.
1:3 The action $or annulment shall be brought within % years.
This period shall begin
i. 9ntimidation ? $rom the time the de$ect o$ the consent ceases
ii. Violence ? $rom the time the de$ect o$ the consent ceases
iii. "ndue in$luence ? $rom the time the de$ect o$ the consent
ceases
iv. Eista,e ? $rom the time o$ the discovery o$ the mista,e
v. Fraud ? $rom the time o$ the discovery o$ the $raud
1:5 The % year prescription period to annul contracts entered
into by minors or other incapacitated persons shall begin $rom the
time the guardianship ceases ='rticle 1!:1, %
th
B>.
1:8 'n obligation having been annulled, the contracting parties
shall restore to each other the things which have been the sub*ect
matter o$ the contract, with their $ruits, and the price with its
interest, e(cept in cases provided by law ='rticle 1!:8, 1
st
B>.
1:: 9n obligations to render service, the value thereo$
shall be the basis $or damages ='rticle 1!:8,
nd
B>.
00 #hen the de$ect o$ the contract consists in the
incapacity o$ 1 o$ the parties, the incapacitated person is not
obliged to ma,e any restitution e(cept inso$ar as he has been
bene$ited by the thing or price received by him ='rticle 1!::>.
01 #hat i$ the Thing to @e -eturned is ;ost
i. ;oss due to Fault o$ +e$endant
0 +e$endant has to pay the plainti$$
0 Value o$ the thing loss
1 Fruits i$ any
9nterest
ii. ;oss due to a Fortuitous 1vent or due to a !
rd
party
0! +e$endant has to pay the plainti$$
1. Value o$ the thing loss
. Fruits i$ any
iii. ;oss due to Fault or Fraud o$ Dlainti$$
0% The plainti$$ loses the right to annul ='rticle
1%01>.
00 There is $ault on the part o$ the plainti$$ once
the plainti$$ regains capacity.
iv. ;oss without Fault on the Dlainti$$s Dart
03 Commentators have a di$$erence o$ opinion
1. The right to annul is e(tinguished unless the plainti$$
o$$ers to pay the value o$ the ob*ect at the time o$
loss
. The plainti$$ is entitled to annul without having to pay
anything.
05 's long as 1 o$ the contracting parties does not
restore what in virtue o$ the decree o$ annulment he is bound to
return, the other cannot be compelled to comply with what is
incumbent upon him ='rticle 1%0>.
08 The action $or annulment will not prosper in the $ollowing<
i. 9$ the contract has been con$irmed ='rticle 1!:>
ii. 9$ the action to annul has prescribed ='rticle 1!:1>
iii. #hen the thing which is the ob*ect o$ the contract is lost
through the $ault or $raud o$ the person who has a right to
institute the proceedings ='rticle 1%01, 1
st
B>
iv. 1stoppel
c. Voidable contracts can be con$irmed.
0: Con$irmation e(tinguishes the action to annul a voidable
contract ='rticle 1!:>.
10 Con$irmation is the proper term $or curing the de$ect o$ a
voidable contract.
11 Con$irmation cleanses the contract $rom all its de$ects $rom
the moment it was constituted ='rticle 1!:3>.
1 -e.uisites o$ Con$irmation
0 That the contract is a voidable or annullable contract
1 That the rati$ication is made with ,nowledge o$ the cause
$or nullity
That at the time the rati$ication is made, the cause o$ nullity
has already ceased to e(ist
1! Con$irmation may be e$$ected e(pressly or tacitly. 9t is
understood that there is tacit con$irmation i$, with ,nowledge o$ the
reason which renders the contract voidable and such reason having
ceased, the person who has a right to invo,e it should e(ecute an
act which necessarily implies an intention to waive his right ='rticle
1!:!>.
d. Voidable contracts can be con$irmed only by the party whose consent
was vitiated
1% Con$irmation does not re.uire the con$ormity o$ the
contracting party who has no right to bring the action $or annulment
='rticle 1!:0>.
10 Con$irmation may be e$$ected by the guardian o$ the
incapacitated person ='rticle 1!:%>.
!. ?nenforceable Contracts
Art. 1403. The following contracts are unenforceable% unless
the" are ratified+
5'7 Those entered into in the name of another person b" one who
has been given no authorit" or legal representation% or who
has acted be"ond his powers3
567 Those that do not compl" with the @tatute of Arauds as set
forth in this number. ,n the following cases an agreement
hereafter made shall be unenforceable b" action% unless the
same% or some note or memorandum% thereof% be in writing%
and subscribed b" the part" charged% or b" his agent3
evidence% therefore% of the agreement cannot be received
without the writing% or a secondar" evidence of its contents+
5a7 An agreement that b" its terms is not to be performed
within a "ear from the making thereof3
5b7 A special promise to answer for the debt% default% or
miscarriage of another3
5c7 An agreement made in consideration of marriage% other
than a mutual promise to marr"3
5d7 An agreement for the sale of goods% chattels or things in
action% at a price not less than five hundred pesos% unless
the bu"er accept and receive part of such goods and
chattels% or the evidences% or some of them% of such
things in action or pa" at the time some part of the
purchase mone"3 but when a sale is made b" auction and
entr" is made b" the auctioneer in his sales book% at the
time of the sale% of the amount and kind of propert" sold%
terms of sale% price% names of the purchasers and person
on whose account the sale is made% it is a sufficient
memorandum3
5e7 An agreement of the leasing for a longer period than one
"ear% or for the sale of real propert" or of an interest
therein3
5f7 A representation as to the credit of a third person.
587 Those where both parties are incapable of giving consent to a
contract.
Art. 1404. ?nauthori$ed contracts are governed b" article '8'C
and the principles of agenc" in Title K of this Gook.
Professor Ruben F. Balane Pa)e +,4 of +,-
Art. 1405. Contracts infringing the @tatute of Arauds% referred
to in 2o. 6 of article '=48% are ratified b" the failure to object to the
presentation of oral evidence to prove the same% or b" the acceptance
of benefit under them.
Art. 1406. 0hen a contract is enforceable under the @tatute of
Arauds% and a public document is necessar" for its registration in the
*egistr" of Deeds% the parties ma" avail themselves of the right under
Article '8)C.
Art. 1407. ,n a contract where both parties are incapable of
giving consent% e-press or implied ratification b" the parent% or
guardian% as the case ma" be% of one of the contracting parties shall
give the contract the same effect as if onl" one of them were
incapacitated.
,f ratification is made b" the parents or guardians% as the case
ma" be% of both contracting parties% the contract shall be validated
from the inception.
Art. 1408. ?nenforceable contracts cannot be assailed b" third
persons.
13 'n unen$orceable contract is a contract which cannot be en$orced
by a proper action in court, unless they are rati$ied, because either they
are entered into without or in e(cess o$ authority or they do not comply
with the /tatute o$ Frauds or both the contracting parties do not possess
the re.uired legal capacity.
15 The $ollowing contracts are unen$orceable unless they are rati$ied
='rticle 1%0!>
a. Those entered into in the name o$ another person by 1 who has been
given no authority or legal representation, or who has acted beyond his
powers
Art. 1317. 2o one ma" contract in the name of another
without being authori$ed b" the latter% or unless he has b" law
a right to represent him.
A contract entered into in the name of another b" one
who has no authorit" or legal representation% or who has acted
be"ond his powers% shall be unenforceable% unless it is ratified%
e-pressl" or impliedl"% b" the person on whose behalf it has
been e-ecuted% before it is revoked b" the other contracting
part".
18 #hen a person enters into a contract $or and in the name o$
another, without authority to do so, the contract does not bind the
latter, unless he rati$ies the same.
1: The agent, who has entered into the contract in the name o$
the purported principal, but without authority $rom him, is liable to
!
rd
persons upon the contract.
0 The proper term $or this case is Orati$icationP.
Professor Ruben F. Balane Pa)e +,* of +,-
1 Example: 9n a sale, H claimed that he was an agent o$ T,
even i$ not. The contract cannot be en$orced against T. 'nother
e(ample is when the agent is authori7ed to lease the property but
the agent instead sells the property. The principal is not bound.
b. Those that do not comply with the /tatute o$ Frauds
This is the most $amous variety.
i. 'n agreement that by its terms is not to be per$ormed within a year
$rom the ma,ing thereo$
! 9n -a5ao vs. Perez, the /upreme Court interpreted
the phrase Onot be to per$ormed within a yearP to mean that the
obligation cannot be $inished within 1 year. Dro$essor @alane
does not agree with this interpretation. 'ccording to Dro$essor
@alane the phrase Onot to be per$ormed within a yearP should
mean that the obligation cannot begin within a year. For
practical reasons, the contract must be in writing since the
parties might $orget. This rule was made to guard against
$allibility =$orget$ulness> o$ man and $raud.
% 'ccording to Dro$essor @alane, the /upreme Courts
interpretation is incorrect. 9$ the obligation cannot be $inished
within 1 year, the contract is not within the /tatute o$ Frauds
because o$ partial per$ormance.
ii. ' special promise to answer $or the debt, de$ault or miscarriage o$
another
0 The test as to whether a promise is within the statute
has been said to lie in the answer to the .uestion whether the
promise is an original or collateral one. 9$ the promise is an
original one or an independent one, that is, i$ the promisor
becomes thereby primarily liable $or the payment o$ the debt,
the promise is not within the statute.
3 9$ the promise is collateral to the agreement o$
another and the promisor becomes merely a surety or
guarantor, the promise must be in writing.
iii. 'n agreement made in consideration o$ marriage, other than a
mutual promise to marry
5 ' mutual promise to marry does not $all within the
/tatute o$ Frauds since they are not made in writing.
8 'greements made in consideration o$ marriage other
than the mutual promise to marry are within the /tatute o$
Frauds.
: 9n ;a5ague vs. Auxilio the $ather o$ the groom
promised to improve his daughter4in4laws $athers house in
consideration o$ the marriage. The $ather o$ the groom made
improvements on the house. The wedding did not ta,e place.
The /upreme Court said that the $ather o$ the groom could not
sue on the oral contract which as to him is not Omutual promise
to marryP. Dro$essor @alane disagrees with the /upreme Court.
Professor Ruben F. Balane Pa)e +,. of +,-
'ccording to Dro$essor @alane, the $ather o$ the groom should
be able to sue since there was partial per$ormance.
iv. 'n agreement $or the sale o$ goods, chattels or things in action, at
a price not less than D000, unless the buyer accepts and receives
part o$ such goods and chattels, or the evidence, or some o$ them,
o$ such things in action, or pay at the time some part o$ the
purchase money& but when a sale is made by auction and entry is
made by the auctioneer in his sales boo,, at the time o$ sale, o$ the
amount and ,ind o$ property sold, terms o$ sale, price, names o$
the purchasers and person on whose account the sale is made, it is
a su$$icient memorandum
!0 The re.uirement o$ a written instrument or a
memorandum $or sales o$ personal property $or a price not less
than D000, covers both tangible and intangible personal
property. 9t also covers the assignment o$ choses in action.
!1 #here a contract $or the sale o$ goods at a price not
less than D000 is oral, and there is neither partial payment or
delivery, receipt, and acceptance o$ the goods, the contract is
unen$orceable, and cannot be the basis o$ an action $or the
recovery o$ the purchase price, or as the basis o$ an action $or
damages $or breach o$ the agreement.
! #here there is a purchase o$ a number o$ articles
which ta,en separately does not have a price o$ D000 each, but
ta,en together, the price e(ceeds D000, the operation o$ the
statute o$ $rauds depends upon whether there is a single
inseparable contract or a several one. 9$ the contract is entire
or inseparable, and the total price e(ceeds D000, the statute
applies. @ut i$ the contract is separable, then each article is
ta,en separately.
v. 'n agreement o$ lease $or a period o$ more than 1 year, or the sale
o$ real property or o$ an interest therein
!! 's long there is a sale o$ real property, the sale must
be in writing. There is no minimum.
!% 'n oral contract $or a supplemental lease o$ real
property $or longer period than 1 year is within the /tatute o$
Frauds.
!0 'n agreement to enter into an agreement is also
within the /tatute o$ Frauds.
vi. ' representation as to the credit o$ a !
rd
person
!3 ' wants to borrow money $rom C. C does not ,now
'. C goes to @ to as, about 's credit standing. @ says that 's
credit standing is satis$actory even though @ ,nows that ' is
insolvent. "nder 'rticle 1%0!, C can go a$ter @ i$ @s
representation was in writing.
!5 Dro$essor @alane thin,s that this does not belong in
the /tatute o$ Frauds. There is no contract between C and @. @
Professor Ruben F. Balane Pa)e +,+ of +,-
did not bind himsel$ to pay C. #hat we have here is an
unen$orceable tort.
!8 'ccording to Dro$essor @alane, Oa representation as to
the credit o$ a !
rd
personP should be replaced by 'rticle 1%%!.
'rticle 1%%! provides that no e(press trusts concerning an
immovable or any interest therein may be proved by parol
evidence.
!: #hen the e(press trust concerns an immovable or an
interest therein, a writing is necessary to prove it. This writing
is not re.uired $or the validity o$ the trust. 9t is re.uired only
$or purposes o$ proo$. #hen the property sub*ect to the e(press
trust, however is not real estate or an interest therein, then it
may be proved by any competent evidence, including parol
evidence.
c. Those where both parties are incapable o$ giving consent to a contract
%0 Neither party or his representative can en$orce the contract
unless it has been previously rati$ied. The rati$ication by 1 party,
however, converts the contract into a voidable contract ? voidable
at the option o$ the party who has not rati$ied& the latter, there$ore,
can en$orce the contract against the party who has rati$ied. 2r,
instead, o$ en$orcing the contract, the party who has not rati$ied it
may as, $or annulment on the ground o$ his incapacity.
%1 The proper term is Oac,nowledgementP =and not rati$ication>.
% Drinciples in the /tatute o$ Frauds
a. Darol evidence is not admissible. Aowever, there are ways o$ bringing
it out.
%! #ays in #hich Darol 1vidence is 'dmissible
i. Failure to ob*ect by the opposing lawyer when parol evidence is
used ='rticle 1%00>
%% 9$ there is no ob*ection, then parol evidence is
admitted.
ii. 'cceptance o$ bene$its ='rticle 1%00>
%0 9$ there has been per$ormance on 1 side and the
other side accepts, then the /tatute o$ Frauds is not
applicable. 'lso, estoppel sets in so by accepting
per$ormance, the de$ect is waived.
b. The /tatute o$ Frauds applies only to e(ecutory contracts and not to
those which have been e(ecuted in whole or in part.
%3 O1(ecutedP here means there has been per$ormance in part
and acceptance by the other.
%. >oid Contracts
Art. 1409. The following contracts are ine-istent and void from
the beginning+
5'7 Those whose cause% object or purpose is contrar" to law%
morals% good customs% public order or public polic"3
Professor Ruben F. Balane Pa)e +,/ of +,-
567 Those which are absolutel" simulated or fictitious3
587 Those whose cause or object did not e-ist at the time of the
transaction3
5=7 Those whose object is outside the commerce of men3
5)7 Those which contemplate an impossible service3
5B7 Those where the intention of the parties relative to the
principal object of the contract cannot be ascertained3
5C7 Those e-pressl" prohibited or declared void b" law.
These contracts cannot be ratified. 2either can the right to set
up the defense of illegalit" be waived.
Art. 1410. The action or defense for the declaration of the
ine-istence of a contract does not prescribe.
%5 ' void contract is an absolute nullity and produces no e$$ect, as i$ it
had never been e(ecuted or entered into.
%8 The $ollowing contracts are ine(istent and void $rom the beginning
='rticle 1%0:>
0 Those whose cause, ob*ect or purpose is contrary to law, morals.
6ood customs, public order or public policy
1 Those which are absolutely simulated or $ictitious
Those whose cause or ob*ect did not e(ist at the time o$ the
transaction
%: 'ccording to Dro$essor @alane, 'rticle 1%0: =!> should not be
Odid not e(istP. -ather, the correct phrase should be Ocould not
come into e(istenceP because there can be a contract over a $uture
thing.
00 1(amples o$ Ocould not come into e(istenceP are tangerine
$lying elephants and cars running on urine.
! Those whose ob*ect is outside the commerce o$ men
% Those which contemplate an impossible service
01 Aere, there is no ob*ect.
0 Those where the intention o$ the parties relative to the principal
ob*ect o$ the contract cannot be ascertained
0 This is similar to being void $or vagueness under the
Constitutional law.
3 Those e(pressly prohibited or declared void by law
0! 'n e(ample o$ this is sale between husband and wi$e,
sub*ect to e(ceptions. The /upreme Court has held that contingent
$ees o$ lawyers wherein the latter receive part o$ the property
sub*ect o$ litigation are valid, unless unconscionable in amount.
0% Characteristics o$ Void Contracts
a. The contract produces no e$$ect whatsoever either against or in $avor o$
anyone
b. ' *udgment o$ nullity would be merely declaratory. There is no action
$or annulment necessary as such is ipso "ure.
00 1ven when the contract is void or ine(istent, an action is
necessary to declare its ine(istence, when it has already been
$ul$illed. Nobody can ta,e the law into his own hands.
03 The intervention o$ a competent court is necessary to
declare the absolute nullity o$ the contract and to decree the
restitution o$ what has been given under it.
05 The *udgment o$ nullity will retroact to the very day when
the contract was entered into.
c. 9t cannot be con$irmed, rati$ied or cured.
d. 9$ it has been per$ormed, the restoration o$ what has been given is in
order, e(cept i$ pari delicto will apply.
e. The right to set the contracts nullity cannot be waived
$. The action $or nullity is imprescriptible ='rticle 1%10>
08 's between the parties to a contract, validity cannot be
given to it by estoppel i$ it is prohibited by law or is against public
policy.
g. 'ny person can invo,e the contracts nullity i$ its *uridical e$$ects are
$elt as to him
0: The de$ense o$ illegality o$ contracts is not available to !
rd
persons whose interests are not directly a$$ected ='rticle 1%1>.
30 Pari Delicto =in e.ual guilt>
Art. 1411. 0hen the nullit" proceeds from the illegalit" of
the cause or object of the contract% and the act constitutes a
criminal offense% both parties being in pari +elicto% the" shall have
no action against each other% and both shall be prosecuted.
<oreover% the provisions of the Penal Code relative to the disposal
of effects or instruments of a crime shall be applicable to the things
or the price of the contract.
This rule shall be applicable when onl" one of the parties is
guilt"3 but the innocent one ma" claim what he has given% and shall
not be bound to compl" with his promise.
Art. 1412. ,f the act in which the unlawful or forbidden
cause consists does not constitute a criminal offense% the following
rules shall be observed+
5'7 0hen the fault is on the part of both contracting parties%
neither ma" recover what he has given b" virtue of the
contract% or demand the performance of the other;s
undertaking3
567 0hen onl" one of the contracting parties is at fault% he
cannot recover what he has given b" reason of the
contract% or ask for the fulfillment of what has been
promised him. The other% who is not at fault% ma" demand
the return of what he has given without an" obligation to
compl" his promise.
31 'rticles 1%11 and 1%1 re$er to the pari delicto rule, which literally
means Oin e.ual ,indP, or also Oin e.ual guiltP ? in pari delicto oritur actio
and sometimes Oin e.ual guilt, the position o$ the de$endant is strongerP ?
in pari delicto potior est condicio de!endentis. The position o$ the
de$endant is stronger because the plainti$$s claim is not really granted.
3 The pari delicto rule applies only to contracts which is void $or
illegality o$ sub*ect matter. Thus, i$ the contract is void $or simulation, the
pari delicto rule does not apply so a party can claim the ob*ect bac,
through reconveyance.
3! 2utline<
a. 9$ it constitutes a criminal o$$ense
i. 9$ both parties are in pari delicto
3% No action $or speci$ic per$ormance can prosper on
either side ='rticle 1%11, 1
st
B>.
30 No action $or restitution can prosper on either side
='rticle 1%11, 1
st
B>.
33 Example: ' shabu supplier supplies shabu to the
shabu dealer. 9$ the shabu supplier does not deliver the shabu,
the dealer cannot $ile an action $or speci$ic per$ormance.
ii. 9$ only 1 party is guilty
35 No action $or speci$ic per$ormance can prosper on
either side.
38 'n action $or restitution will be allowed only i$ the
innocent party demands. The guilty party is not entitled to
restitution.
b. 9$ it does not constitute a criminal o$$ense
i. 9$ both parties are in pari delicto
3: No action $or speci$ic per$ormance can prosper on
either side ='rticle 1%11, 1
st
B>.
50 No action $or restitution can prosper on either side
='rticle 1%11, 1
st
B>.
ii. 9$ only 1 party is guilty
51 No action $or speci$ic per$ormance can prosper on
either side.
5 'n action $or restitution will be allowed only i$ the
innocent party demands.
5! 1(ceptions to Pari Delicto
a. 9nterest paid in e(cess o$ the interest allowed by the usury laws may be
recovered by the debtor, with interest there$rom $rom the date o$
payment ='rticle 1%1!>
Professor Ruben F. Balane Pa)e +,, of +,-
b. #hen money is paid or property delivered $or an illegal purpose, the
contract may be repudiated by 1 o$ the parties be$ore the purpose has
been accomplished, or be$ore any damage has been caused to a !
rd
person. 9n such case, the courts may, i$ the public interest will thus be
subserved, allow the party repudiating the contract to recover the
money or property ='rticle 1%1%>.
c. #here 1 o$ the parties to an illegal contract is incapable o$ giving
consent, the courts, may, i$ the interest o$ *ustice so demands, allow
recovery o$ money or property delivered by the incapacitated person
='rticle 1%10>.
d. #hen the agreement is not illegal per se but is merely prohibited, and
the prohibition by law is designed $or the protection o$ the plainti$$, he
may, i$ public policy is enhanced, recover what he has paid or delivered
='rticle 1%13>.
e. #hen the price o$ any article or commodity is determined by statute, or
by authority o$ law, any person paying any amount in e(cess o$ the
ma(imum price allowed may recover such e(cess ='rticle 1%15>.
$. #hen the law $i(es, or authori7es the $i(ing o$ the ma(imum number o$
hours o$ labor, and a contract is entered into whereby a laborer
underta,es to wor, longer than the ma(imum thus $i(ed, he may
demand additional compensation $or service rendered beyond the time
limit ='rticle 1%18>.
g. #hen the law sets or authori7es the setting o$ a minimum wage $or
laborers, and a contract is agreed upon by which a laborer accepts a
lower wage, he shall be entitled to recover the de$iciency ='rticle
1%1:>.
The above contracts are void but there is some remedy $or policy
considerations. 'n e(ample is the minimum wage law under 'rticle
1%1: wherein the employer and the employee $reely agree to the terms
o$ employment below the minimum wage. 'lthough they are in pari
delicto, you dont $ollow the rules o$ pari delicto. There is a policy
consideration o$ social *ustice involved. This is similar to the
pre$erential option $or the poor o$ churches.
5% Final Drovisions
Art. 1420. ,n case of a divisible contract% if the illegal terms
can be separated from the legal ones% the latter ma" be enforced.
Art. 1421. The defense of illegalit" of contract is not
available to third persons whose interests are not directl" affected.
Art. 1422. A contract which is the direct result of a previous
illegal contract% is also void and ine-istent.
Professor Ruben F. Balane Pa)e +,- of +,-
Dear ?ello4 -ar Examinees
IAm sorr8 t#e editing o! t#is Lrevie4erM too6 longer t#an I expected.
I #ope t#is Lrevie4erM 4ould #elp 8ou ma6e sense o! t#e rat#er con!using 4orld
o! civil la4.
7#e notes #ere are !rom Pro!essor Ru5en ?. -alaneAs lectures in #is EP ;ivil
La4 Revie4 class (IAm not sure !rom 4#at 8ear) I "ust added t#e codal provisions and
re!ormatted t#e notes !or easier reading. I also included parts o! t#e .5ligations and
;ontracts Revie4er made 58 *A ;lass %000 and m8 notes in ;ivil La4 Revie4 % on
.5ligations and ;ontracts (also under Pro!essor -alane) last semester (%00)B%00%).
I! 8ou !ind t#is #elp!ul please s#are 4it# anot#er examinee.
I! 8ou see an8 mista6e please s#are 4it# me. 7#an6s.
:od 5less and good luc6 to all o! us.
Dot
Ateneo La4 %00%
T7an@ 9ou to Professor Ruben F. Balane

Balane Civil Law Reviewer - Final

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Lecture Notes on Civil Law

Professor Ruben F. Balane

& $orm o$ donations ? 'rticle 5%:

until he reaches the age o$ 1.

o$ the Family Code.

=The +omestic 'doption 'ct>.

and 1%3 =B>

, i$ the community property

Art. 1*/. The donation o$ a movable may be made orally or in writing.

shall also appl"

is wrong. The sub*ect

$or purposes o$ prescription, *ust title is not

LAN# "NER IS B(IL#ER>PLANTER>S"ER "NER "F $ATERIAL

o$ the #ater Code de$ines what is

governs in this case.

o$ the #ater Code are the repealing clauses

, the periods o$ =$or bees> and 0 days =$or

provides the procedure when one $inds a lost movable

Art. )(/). The $ollowing contracts are rescissible<

. Fraud under 'rticle 1!!8 is more properly

but is called loss there, a

>, the laborer o$ an independent contractor

>, and the vendor4a4retro against the

, rescissible contracts. -esolution is di$$erent

provides the instances when demand is not

. The contract is void.

Art. )(*/. 9mpossible things or services cannot be the ob*ect o$ contracts.

Art. 1*/. The donation o$ a movable may be made orally or in writing.

are e(amples o$ when

>, the laborer o$ an

>, and the vendor4

Now, -ule 1!0, JJ1041:.

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Art. )(/. 9mpossible things or services cannot be the obect o$ contracts.