[G.R. No. 155043.

September 30, 2004]

ARTURO R. ABALOS, petitioner, vs. DR. GALICANO S. MACATANGAY, JR., respondent.
DECISION
TINGA, J.:
The instant petition seeks a reversal of the Decision of the Court of Appeals in CA-G.R. CV No.
48355 entitled Dr. Galicano S. Macatangay, Jr. v. Arturo R. Abalos and Esther Palisoc-Abalos,
promulgated on March 14, 2002. The appellate court reversed the trial courts decision which
dismissed the action for specific performance filed by respondent, and ordered petitioner and his
wife to execute in favor of herein respondent a deed of sale over the subject property.
Spouses Arturo and Esther Abalos are the registered owners of a parcel of land with
improvements located at Azucena St., Makati City consisting of about three hundred twentyseven (327) square meters, covered by Transfer Certificate of Title (TCT) No. 145316 of the
Registry of Deeds of Makati.
Armed with a Special Power of Attorney dated June 2, 1988, purportedly issued by his wife,
Arturo executed a Receipt and Memorandum of Agreement (RMOA) dated October 17, 1989, in
favor of respondent, binding himself to sell to respondent the subject property and not to offer
the same to any other party within thirty (30) days from date. Arturo acknowledged receipt of a
check from respondent in the amount of Five Thousand Pesos (P5,000.00), representing earnest
money for the subject property, the amount of which would be deducted from the purchase price
of One Million Three Hundred Three Hundred Thousand Pesos (P1,300,000.00). Further, the
RMOA stated that full payment would be effected as soon as possession of the property shall
have been turned over to respondent.
Subsequently, Arturos wife, Esther, executed a Special Power of Attorney dated October 25,
1989, appointing her sister, Bernadette Ramos, to act for and in her behalf relative to the transfer
of the property to respondent. Ostensibly, a marital squabble was brewing between Arturo and
Esther at the time and to protect his interest, respondent caused the annotation of his adverse
claim on the title of the spouses to the property on November 14, 1989.
On November 16, 1989, respondent sent a letter to Arturo and Esther informing them of his
readiness and willingness to pay the full amount of the purchase price. The letter contained a
demand upon the spouses to comply with their obligation to turn over possession of the property
to him. On the same date, Esther, through her attorney-in-fact, executed in favor of respondent, a
Contract to Sell the property to the extent of her conjugal interest therein for the sum of six
hundred fifty thousand pesos (P650,000.00) less the sum already received by her and Arturo.
Esther agreed to surrender possession of the property to respondent within twenty (20) days from
November 16, 1989, while the latter promised to pay the balance of the purchase price in the
amount of one million two hundred ninety thousand pesos (P1,290,000.00) after being placed in

possession of the property. Esther also obligated herself to execute and deliver to respondent a
deed of absolute sale upon full payment.
In a letter dated December 7, 1989, respondent informed the spouses that he had set aside the
amount of One Million Two Hundred Ninety Thousand Pesos (P1,290,000.00) as evidenced by
Citibank Check No. 278107 as full payment of the purchase price. He reiterated his demand
upon them to comply with their obligation to turn over possession of the property. Arturo and
Esther failed to deliver the property which prompted respondent to cause the annotation of
another adverse claim on TCT No. 145316. On January 12, 1990, respondent filed a complaint
for specific performance with damages against petitioners. Arturo filed his answer to the
complaint while his wife was declared in default.
The Regional Trial Court (RTC) dismissed the complaint for specific performance. It ruled that
the Special Power of Attorney (SPA) ostensibly issued by Esther in favor of Arturo was void as it
was falsified. Hence, the court concluded that the SPA could not have authorized Arturo to sell
the property to respondent. The trial court also noted that the check issued by respondent to cover
the earnest money was dishonored due to insufficiency of funds and while it was replaced with
another check by respondent, there is no showing that the second check was issued as payment
for the earnest money on the property.
On appeal taken by respondent, the Court of Appeals reversed the decision of the trial court. It
ruled that the SPA in favor of Arturo, assuming that it was void, cannot affect the transaction
between Esther and respondent. The appellate court ratiocinated that it was by virtue of the SPA
executed by Esther, in favor of her sister, that the sale of the property to respondent was effected.
On the other hand, the appellate court considered the RMOA executed by Arturo in favor of
respondent valid to effect the sale of Arturos conjugal share in the property.
Dissatisfied with the appellate courts disposition of the case, petitioner seeks a reversal of its
decision alleging that:
I.
The Court of Appeals committed serious and manifest error when it decided on the appeal
without affording petitioner his right to due process.
II.
The Court of Appeals committed serious and manifest error in reversing and setting aside the
findings of fact by the trial court.
III.
The Court of Appeals erred in ruling that a contract to sell is a contract of sale, and in ordering
petitioner to execute a registrable form of deed of sale over the property in favor of respondent.1
1 Rollo, pp. 21-22.

Petitioner contends that he was not personally served with copies of summons, pleadings, and
processes in the appeal proceedings nor was he given an opportunity to submit an appellees brief.
He alleges that his counsel was in the United States from 1994 to June 2000, and he never
received any news or communication from him after the proceedings in the trial court were
terminated. Petitioner submits that he was denied due process because he was not informed of
the appeal proceedings, nor given the chance to have legal representation before the appellate
court.
We are not convinced. The essence of due process is an opportunity to be heard. Petitioners
failure to participate in the appeal proceedings is not due to a cause imputable to the appellate
court but because of petitioners own neglect in ascertaining the status of his case. Petitioners
counsel is equally negligent in failing to inform his client about the recent developments in the
appeal proceedings. Settled is the rule that a party is bound by the conduct, negligence and
mistakes of his counsel.2 Thus, petitioners plea of denial of due process is downright baseless.
Petitioner also blames the appellate court for setting aside the factual findings of the trial court
and argues that factual findings of the trial court are given much weight and respect when
supported by substantial evidence. He asserts that the sale between him and respondent is void
for lack of consent because the SPA purportedly executed by his wife Esther is a forgery and
therefore, he could not have validly sold the subject property to respondent.
Next, petitioner theorizes that the RMOA he executed in favor of respondent was not perfected
because the check representing the earnest money was dishonored. He adds that there is no
evidence on record that the second check issued by respondent was intended to replace the first
check representing payment of earnest money.
Respondent admits that the subject property is co-owned by petitioner and his wife, but he
objects to the allegations in the petition bearing a relation to the supposed date of the marriage of
the vendors. He contends that the alleged date of marriage between petitioner and his wife is a
new factual issue which was not raised nor established in the court a quo. Respondent claims that
there is no basis to annul the sale freely and voluntarily entered into by the husband and the wife.
The focal issue in the instant petition is whether petitioner may be compelled to convey the
property to respondent under the terms of the RMOA and the Contract to Sell. At bottom, the
resolution of the issue entails the ascertainment of the contractual nature of the two documents
and the status of the contracts contained therein.
Contracts, in general, require the presence of three essential elements: (1) consent of the
contracting parties; (2) object certain which is the subject matter of the contract; and (3) cause of
the obligation which is established.3

2 Heirs of Elias Lorilla v. Court of Appeals, 368 Phil. 638 (2000).

3 ART. 1318, CIVIL CODE OF THE PHILIPPINES; Santos v. Heirs of Jose Mariano and
Erlinda Mariano-Villanueva, G.R. No. 143325, October 24, 2000, 344 SCRA 284.

Until the contract is perfected, it cannot, as an independent source of obligation, serve as a

binding juridical relation.4 In a contract of sale, the seller must consent to transfer ownership in
exchange for the price, the subject matter must be determinate, and the price must be certain in
money or its equivalent.5 Being essentially consensual, a contract of sale is perfected at the
moment there is a meeting of the minds upon the thing which is the object of the contract and
upon the price.6 However, ownership of the thing sold shall not be transferred to the vendee until
actual or constructive delivery of the property.7
On the other hand, an accepted unilateral promise which specifies the thing to be sold and the
price to be paid, when coupled with a valuable consideration distinct and separate from the price,
is what may properly be termed a perfected contract of option.8 An option merely grants a
privilege to buy or sell within an agreed time and at a determined price. It is separate and distinct
from that which the parties may enter into upon the consummation of the option.9 A perfected
contract of option does not result in the perfection or consummation of the sale; only when the
option is exercised may a sale be perfected.10 The option must, however, be supported by a
consideration distinct from the price.11
Perusing the RMOA, it signifies a unilateral offer of Arturo to sell the property to respondent for
a price certain within a period of thirty days. The RMOA does not impose upon respondent an
obligation to buy petitioners property, as in fact it does not even bear his signature thereon. It is
quite clear that after the lapse of the thirty-day period, without respondent having exercised his
option, Arturo is free to sell the property to another. This shows that the intent of Arturo is
merely to grant respondent the privilege to buy the property within the period therein stated.
There is nothing in the RMOA which indicates that Arturo agreed therein to transfer ownership
of the land which is an essential element in a contract of sale. Unfortunately, the option is not
binding upon the promissory since it is not supported by a consideration distinct from the price.12

4 Ang Yu v. Asuncion, G.R. No. 109125, December 2, 1994, 238 SCRA 602.
5 Heirs of Juan San Andres v. Rodriguez, 388 Phil. 571 (2000).
6 Laforteza v. Machuca, 389 Phil. 167 (2000).
7 Heirs of Quirico Seraspi and Purificacion Seraspi v. Court of Appeals, 387 Phil. 306
(2000).
8 Ang Yu v. Asuncion, Supra note 4.
9 Equatorial Realty Development, Inc. v. Mayfair Theater, Inc., 332 Phil. 525 (1996).
10 Cavite Development Bank v. Lim, 381 Phil. 355 (2000).
11 De la Cavada v. Diaz, 37 Phil. 982 (1918), Beaumont v. Prieto, 41 Phil. 670
(1916).

As a rule, the holder of the option, after accepting the promise and before he exercises his option,
is not bound to buy. He is free either to buy or not to buy later. In Sanchez v. Rigos13 we ruled
that in an accepted unilateral promise to sell, the promissor is not bound by his promise and may,
accordingly, withdraw it, since there may be no valid contract without a cause or consideration.
Pending notice of its withdrawal, his accepted promise partakes of the nature of an offer to sell
which, if acceded or consented to, results in a perfected contract of sale.
Even conceding for the nonce that respondent had accepted the offer within the period stated
and, as a consequence, a bilateral contract of purchase and sale was perfected, the outcome
would be the same. To benefit from such situation, respondent would have to pay or at least
make a valid tender of payment of the price for only then could he exact compliance with the
undertaking of the other party.14 This respondent failed to do. By his own admission, he merely
informed respondent spouses of his readiness and willingness to pay. The fact that he had set
aside a check in the amount of One Million Two Hundred Ninety Thousand Pesos
(P1,290,000.00) representing the balance of the purchase price could not help his cause. Settled
is the rule that tender of payment must be made in legal tender. A check is not legal tender, and
therefore cannot constitute a valid tender of payment.15 Not having made a valid tender of
payment, respondents action for specific performance must fail.
With regard to the payment of Five Thousand Pesos (P5,000.00), the Court is of the view that the
amount is not earnest money as the term is understood in Article 1482 which signifies proof of
the perfection of the contract of sale, but merely a guarantee that respondent is really interested
to buy the property. It is not the giving of earnest money, but the proof of the concurrence of all
the essential elements of the contract of sale which establishes the existence of a perfected sale.16
No reservation of ownership on the part of Arturo is necessary since, as previously stated, he has
never agreed to transfer ownership of the property to respondent.
Granting for the sake of argument that the RMOA is a contract of sale, the same would still be
void not only for want of consideration and absence of respondents signature thereon, but also
for lack of Esthers conformity thereto. Quite glaring is the absence of the signature of Esther in
the RMOA, which proves that she did not give her consent to the transaction initiated by Arturo.
The husband cannot alienate any real property of the conjugal partnership without the wifes
consent.17
12 Atkins, Kroll and Co., Inc. v. Cua Hian Tek, 102 Phil. 948.
13 150-A Phil. 714 (1972).
14 Article 1191, CIVIL CODE.
15 Cebu International Finance Corporation v. Court of Appeals, 374 Phil. 844; Far
East Bank & Trust Company v. Diaz Realty, Inc., G.R. No. 38588, August 23, 2001,
363 SCRA 659.
16 San Miguel Properties Philippines, Inc. v. Huang, 391 Phil. 636 (2000).

However, it was the Contract to Sell executed by Esther through her attorney-in-fact which the
Court of Appeals made full use of. Holding that the contract is valid, the appellate court
explained that while Esther did not authorize Arturo to sell the property, her execution of the SPA
authorizing her sister to sell the land to respondent clearly shows her intention to convey her
interest in favor of respondent. In effect, the court declared that the lack of Esthers consent to the
sale made by Arturo was cured by her subsequent conveyance of her interest in the property
through her attorney-in-fact.
We do not share the ruling.
The nullity of the RMOA as a contract of sale emanates not only from lack of Esthers consent
thereto but also from want of consideration and absence of respondents signature thereon. Such
nullity cannot be obliterated by Esthers subsequent confirmation of the putative transaction as
expressed in the Contract to Sell. Under the law, a void contract cannot be ratified18 and the
action or defense for the declaration of the inexistence of a contract does not prescribe.19 A void
contract produces no effect either against or in favor of anyoneit cannot create, modify or
extinguish the juridical relation to which it refers.20
True, in the Contract to Sell, Esther made reference to the earlier RMOA executed by Arturo in
favor of respondent. However, the RMOA which Arturo signed is different from the deed which
Esther executed through her attorney-in-fact. For one, the first is sought to be enforced as a
contract of sale while the second is purportedly a contract to sell only. For another, the terms and
conditions as to the issuance of title and delivery of possession are divergent.
The congruence of the wills of the spouses is essential for the valid disposition of conjugal
property. Where the conveyance is contained in the same document which bears the conformity
of both husband and wife, there could be no question on the validity of the transaction. But when
there are two documents on which the signatures of the spouses separately appear, textual
concordance of the documents is indispensable. Hence, in this case where the wifes putative
consent to the sale of conjugal property appears in a separate document which does not, however,
contain the same terms and conditions as in the first document signed by the husband, a valid
transaction could not have arisen.
Quite a bit of elucidation on the conjugal partnership of gains is in order.

17 Article 166, CIVIL CODE.

18 Article 1409, CIVIL CODE.
19 Article 1410, CIVIL CODE; Santos v. Santos, G.R. No. 133895, October 2, 2001,
366 SCRA 395.
20 Gochan v. Young, G.R. No. 131889, March 12, 2001, 354 SCRA 207.

Arturo and Esther appear to have been married before the effectivity of the Family Code. There
being no indication that they have adopted a different property regime, their property relations
would automatically be governed by the regime of conjugal partnership of gains.21
The subject land which had been admittedly acquired during the marriage of the spouses forms
part of their conjugal partnership.22
Under the Civil Code, the husband is the administrator of the conjugal partnership. This right is
clearly granted to him by law.23 More, the husband is the sole administrator. The wife is not
entitled as of right to joint administration.24
The husband, even if he is statutorily designated as administrator of the conjugal partnership,
cannot validly alienate or encumber any real property of the conjugal partnership without the
wifes consent.25 Similarly, the wife cannot dispose of any property belonging to the conjugal
partnership without the conformity of the husband. The law is explicit that the wife cannot bind
the conjugal partnership without the husbands consent, except in cases provided by law.26
More significantly, it has been held that prior to the liquidation of the conjugal partnership, the
interest of each spouse in the conjugal assets is inchoate, a mere expectancy, which constitutes
neither a legal nor an equitable estate, and does not ripen into title until it appears that there are
assets in the community as a result of the liquidation and settlement. The interest of each spouse
is limited to the net remainder or remanente liquido (haber ganancial) resulting from the
liquidation of the affairs of the partnership after its dissolution.27 Thus, the right of the husband
or wife to one-half of the conjugal assets does not vest until the dissolution and liquidation of the
conjugal partnership, or after dissolution of the marriage, when it is finally determined that, after
settlement of conjugal obligations, there are net assets left which can be divided between the
spouses or their respective heirs.28

21 ART. 119, CIVIL CODE.

22 ART. 160, CIVIL CODE.
23 ART. 165, CIVIL CODE.
24 Ysasi v. Hon. Fernandez, et.al., 132 Phil. 526 (1968).
25 ART. 166, CIVIL CODE.
26 ART. 172, CIVIL CODE.
27 Nable Jose v. Nable Jose, 41 Phil. 713 (1916); Manuel v. Losano, 41 Phil. 855
(1918).
28 Quintos de Ansaldo v. Sheriff of Manila, 64 Phil. 115 (1937).

In not a few cases, we ruled that the sale by the husband of property belonging to the conjugal
partnership without the consent of the wife when there is no showing that the latter is
incapacitated is void ab initio because it is in contravention of the mandatory requirements of
Article 166 of the Civil Code.29 Since Article 166 of the Civil Code requires the consent of the
wife before the husband may alienate or encumber any real property of the conjugal partnership,
it follows that acts or transactions executed against this mandatory provision are void except
when the law itself authorizes their validity.30
Quite recently, in San Juan Structural and Steel Fabricators, Inc. v. Court of Appeals,31 we ruled
that neither spouse could alienate in favor of another, his or her interest in the partnership or in
any property belonging to it, or ask for partition of the properties before the partnership itself had
been legally dissolved. Nonetheless, alienation of the share of each spouse in the conjugal
partnership could be had after separation of property of the spouses during the marriage had been

29 Nicolas v. Court of Appeals, No. L-37631, October 12, 1987, 154 SCRA 635;
Garcia v. Court of Appeals, 215 Phil. 380 (1984); Tolentino v. Cardena, 123 Phil. 517
(1966).
30 ART. 5, CIVIL CODE.
31 357 Phil 631 (1998).

judicially decreed, upon their petition for any of the causes specified in Article 19132 of the Civil
Code in relation to Article 21433 thereof.
As an exception, the husband may dispose of conjugal property without the wifes consent if such
sale is necessary to answer for conjugal liabilities mentioned in Articles 161 and 162 of the Civil
Code.34 In Tinitigan v. Tinitigan, Sr.,35 the Court ruled that the husband may sell property
belonging to the conjugal partnership even without the consent of the wife if the sale is necessary
to answer for a big conjugal liability which might endanger the familys economic standing. This

32 ART. 191. The husband or the wife may ask for the separation of property, and it shall
be decreed when the spouse of the petitioner has been sentenced to a penalty which carries with
it civil interdiction, or has been declared absent, or when legal separation has been granted.In
case of abuse of powers of administration of the conjugal partnership property by the husband, or
in case of abandonment by the husband, separation of property may also be ordered by the court,
according to the provisions of Articles 167 and 178, No. 3.
In all these cases, it is sufficient to present the final judgment which has been entered
against the guilty or absent spouse.
The husband and the wife may agree upon the dissolution of the conjugal partnership
during the marriage, subject to judicial approval. All the creditors of the husband and of the wife,
as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the
voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the
hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal
partnership, the court shall take such measures as may protect the creditors and other third
persons.
After dissolution of the conjugal partnership, the provisions of Articles 214 and 215 shall
apply. The provisions of this Code concerning the effect of partition stated in Articles 498 to 501
shall be applicable.

33 ART. 214. Each spouse shall own, dispose of, possess, administer and enjoy his or
her own separate estate, without the consent of the other. All earnings from any
profession, business or industry shall likewise belong to each spouse.

34 ART. 161. The conjugal partnership shall be liable for:(1) All debts and obligations contracted
by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also
for the same purpose, in the cases where she may legally bind the partnership;
(2) Arrears or income due, during the marriage, from obligations which constitute a
charge upon property of either spouse or of the partnership;

is one instance where the wifes consent is not required and, impliedly, no judicial intervention is
necessary.
Significantly, the Family Code has introduced some changes particularly on the aspect of the
administration of the conjugal partnership. The new law provides that the administration of the
conjugal partnership is now a joint undertaking of the husband and the wife. In the event that one
spouse is incapacitated or otherwise unable to participate in the administration of the conjugal
partnership, the other spouse may assume sole powers of administration. However, the power of
administration does not include the power to dispose or encumber property belonging to the
conjugal partnership.36 In all instances, the present law specifically requires the written consent
of the other spouse, or authority of the court for the disposition or encumbrance of conjugal
partnership property without which, the disposition or encumbrance shall be void.37
Inescapably, herein petitioners action for specific performance must fail. Even on the supposition
that the parties only disposed of their respective shares in the property, the sale, assuming that it
exists, is still void for as previously stated, the right of the husband or the wife to one-half of the
conjugal assets does not vest until the liquidation of the conjugal partnership. Nemo dat qui non
habet. No one can give what he has not.
WHEREFORE, the appealed Decision is hereby REVERSED and SET ASIDE. The complaint
in Civil Case No. 90-106 of the Regional Trial Court of Makati is ordered DISMISSED. No
pronouncement as to costs.
(3) Minor repairs or for mere preservation made during the marriage upon the separate
property of either the husband or the wife; major repairs shall not be charged to the partnership;
(4) Major or minor repairs upon the conjugal partnership property;
(5) The maintenance of the family and the education of the children of both husband and
wife, and of legitimate children of one of the spouses;
(6) Expenses to permit the spouses to complete a professional, vocational or other course.
ART. 162. The value of what is donated or promised to the common children by the husband,
only for securing their future or the finishing of a career, or by both spouses through a common
agreement shall also be charged to the conjugal partnership, when they have not stipulated that it
is to be satisfied from the property of one of them, in whole or in part.

35 No. L- 45418, October 30, 1980, 100 SCRA 619.

36 ART. 124, FAMILY CODE OF THE PHILIPPINES.
37 Ibid.

SO ORDERED.
Puno, (Chairman), Austria-Martinez, and Callejo, Sr., JJ., concur.
Chico-Nazario, J., on leave.