83558486 civil law pre week

8/10/2019 83558486 Civil Law Pre Week

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PRE-WEEK REVIEW ON CIVIL LAW

1) When do laws take effect in the Philippines?

Ans: 15 days after publication in the Official Gazette or in a newspaper of general circulation,unless it is otherwise proided in the law (Art. 2, Civil Code).

2) a! What is the effect of the acts e"ecuted against the #andatory and prohibitory proisions of law?

Ans: $cts done in contraention of prohibitory and #andatory proisions of law are null and oid,e"cept when the law itself proides for their alidity %$rt! 5, &'')

b! (tate at least e"ceptions when acts e"ecuted against #andatory laws are alid! (see page 3,ibid )

) What is the concept of “Stare decisis”?

Ans: *udicial decisions interpreting the law shall for# part of the Philippine legal syste# %$rt! +,&'')

1) $ -, both .ilipino got #arried! - beca#e naturalized $#erican citizen and got a diorce decreeagainst $ in /ino, &eada! 0iorce is recognized in the nited (tates, but not in the Philippines!

$ subse2uently got #arried to '!

a) 3s the #arriage of $ to ' alid under Philippine law?

Ans: 4es! 3n Llorente vs. Llorente, decided by the (upre#e 'ourt of the Philippines in 666,the #arriage under identical facts was held to be alid, applying the nationality principle to- under $rticle 15 of the 'iil 'ode which proides that 7laws relating to fa#ily rights andduties, or the status, condition and legal capacity of persons are binding upon citizens ofthe Philippines, een though liing abroad!8

(ince - was an $#erican when he obtained the 0iorce decree, ( law, which recognizesabsolute diorce, applies!

3n the recent case of Republic vs. Orbecido, decided in 665, the (upre#e 'ourt,interpreting $rticle 9, paragraph , ruled that:

;he intent of par! , $rticle 9 is to aoid the absurd situation where the.ilipino spouse re#ains #arried to the alien spouse who, after obtaining a diorce,is no longer #arried to the .ilipino spouse!

;he reckoning point is not the citizenship of the parties at the ti#e of thecelebration of the #arriage, but their citizenship at the ti#e a alid diorce isobtained abroad by the alien spouse capacitating hi# to re#arry!

) Will your answer be the sa#e, if - obtained first the 0iorce decree before beco#ing a naturalized $#erican citizen?

Ans: &o! 3n Republic vs. Io , 470 SCRA 519 (Sept. 21, 2005), the (upre#e 'ourt held that $rticle 9, paragraph is not applicable to a .ilipino spouse who beca#e a naturalized

$#erican after obtaining the diorce decree! When the diorce decree was obtained, hewas still a .ilipino citizen bound by Philippine laws on fa#ily rights and duties, status,condition and legal capacity!

) $, #arried to -, got an illegal 0iorce against - in the ( and then #arried '! ' got #ad at $ uponlearning that their #arriage is oid! $ filed an action to declare his #arriage to - a nullity under $rt!9 of the .a#ily 'ode! <ay ' interene in said action?

Notes of hotjurist In foro conscientiae



Ans: &o, she has no legal interest because she was neer a legal wife of the Petitioner! =er#arriage to hi# is oid because at the ti#e of her #arriage to the Petitioner, the latter wasstill lawfully #arried to -! ( !l"ar #ere$ vs. %ourt of Appeals and &ristan %atindi',G.R. No. 125!0)

>) 3s a Psychiatric report a #andatory re2uire#ent in an action to declare nullity of the #arriage basedon psychological incapacity under $rt! 9 of the .a#ily 'ode?

Ans: Psychological incapacity, as a ground for declaring the nullity of a #arriage, #ay beestablished by the totality of eidence presented! ;here is no re2uire#ent, howeer, thatthe respondent should be e"a#ined by physician or a psychologist as a condition sine 2uonon for such declaration! %(arcos vs. (arcos, G.R. No. 13490, "#t. 19, 2000 )

1) What is the doctrine of triennial cohabitation?

Ans: ;he husband is presu#ed i#potent if the wife re#ains a irgin after liing together for years! ($S %&rispr&de'#e).

) nu#erate the instances when fraud constitutes a ground for annul#ent of #arriage!

Ans: 'onceal#ent or non@disclosure of:

1! Preious coniction of cri#e inoling #oral turpitude!

! -eing pregnant by another #an at the ti#e of the #arriage!

! (e"ually trans#issible disease %(;0) e"isting at the ti#e of the #arriage!

4. 0rug addiction, habitual alcoholis#, ho#ose"ually or lesbianis# e"isting at the ti#e ofthe #arriage % Art. 4, .C.).

&ote: &o other #isrepresentation or deceit as to character, health, rank fortune or chastityshall constitute such fraud as will gie grounds for action for the annul#ent of #arriage!% Art. 4, C )

) 3n what cases between #e#bers of the sa#e fa#ily is earnest effort for co#pro#ise notre2uiredAnecessary?

Ans: 3n the following cases which #ay not be the subBect of co#pro#ise:

%1) ;he ciil status of personsC

%) ;he alidity of a #arriage or legal separationC

%) $ny ground for legal separationC

%>) .uture supportC

%5) ;he Burisdiction of courtsC

%9) .uture legiti#e!

>) $re chronic lying and fantasizing a ground for declaration of nullity based on psychologicalincapacity under $rticle 9 of the .a#ily 'ode?

Ans: 4es, as held by the (upre#e 'ourt in a recent case where ineterate lying i#pairs thecapacity of the liar to perfor# essential #arital obligation, pre@e"isting and present at the

ti#e of the celebration of the #arriage, grae and incurable!

V

1) a) When #ay the illegiti#ate children use the surna#e of the natural father?




Ans: When their filiation has been e"pressly recognized by their father through %1) the record ofbirth appearing in the ciil registrar %) in a public docu#ent %) or priate handwritteninstru#ent of the father!

;here is no need to go to court to establish filiation and authorization to use the surna#e ofthe father!

$side fro# the foregoing, filiation #ay be established by %1) the open and continuouspossession of the status of an illegiti#ate childC or %) any other #eans allowed by the/ules of 'ourt and special laws! (Art. 172, Civil Code).

b) 3s 0&$ test ad#issible proof of parentage?

Ans: 4es, it is a recognized proof of paternity and filiation!

) a) When #ay entries in the ciil registry be corrected without a Budicial order?

Ans: .or clerical or typographical errors and change of first na#e or nickna#e!

) What are the re2uire#ents for a decree of declaration of nullity to be final and e"ecutory where

there are assets for partition and there are children borne of the #arriage declared null and oid?

Ans: ;here #ust be a partition and deliery of the presu#ptie legiti#e to the children!

V

1) 3s the sale of the reclai#ed and the sub#erged area of <anila -ay to $<$/3, a priate corporationalid? /easons!

Ans: &o, for the following reasons:

a! ;he sale of the reclai#ed lands in <anila -ay registered in the na#e of P$ fallingunder lands of the public do#ain in faor of $<$/3, a priate corporation is oid forbeing contrary to (ection , $rticle D33 of the 1E+F 'onstitution which prohibits priatecorporations fro# ac2uiring any kind of alienable land of the public do#ain!

b! ;he sale of the still sub#erged area of <anila -ay to $<$/3 is oid for being contraryto (ec! , $rt D33 of the 1E+F 'onstitution which prohibits the alienation of naturalresources other than agricultural lands of the public do#ain!

c! Priate corporations cannot hold, e"cept by lease, alienable lands of the publicdo#ain!

d! (ub#erged lands, like the waters %sea or bay) aboe the#, are part of the (tatesinalienable natural resources! (ub#erged lands are property of public do#inion,absolutely inalienable and outside the co##erce of #an! ;his is also true with respect

to foreshore lands! $ny sale of sub#erged or foreshore lands is oid being contrary tothe 'onstitution!

2) 3s the salvage *o'e+ capable of priate ownership and titling?

Ans: 4es! ;he salage zone consisting of 7lands #easuring twenty %6) #eters #easuredlandward fro# the interior li#it of the shoreline8 is capable of priate ownership and beingalidly coered by a ;orrens ;itle subBect to the ease#ent of public use, #ore specificallyease#ent of salage and costal police i#posed by law! ( (aristela vs. )irector of Lands,et. al., G.R. No. 34901R, Septe-er 7, 19!/ 5 ".G. No. 4, pp. 1274412747/ Art. 9,Spa'is a o aters o 1!!/ Arti#le 51, ater Code/ Art. 420, 'e Civil Code)

) What is the doctrine of indefeasibility of torrens titles?

Ans: $ certificate of title, once registered, should not thereafter be i#pugned, altered, changed,#odified, enlarged or di#inished e"cept in a direct proceeding per#itted by law! ;heresolution of the issue is, thus, not dependent on the report of the surey tea# filed in thetrial court! ( )e #edro v. Ro"asan, G.R. No. 15!002, er&ar 2!, 2005)

>) Who is an innocent purchase in good faith of registered land?




Ans: Where the real property inoled is coered by a ;orrens title, the buyer, #ortgagee, or,any person dealing with said realty need not go beyond what appears on the face of thetitle! =e is charged with notice only of such burdens and clai#s as are annotated on thetitle! ( %le"ente vs. Ra$o, G.R. No. 151245, 6ar# 04, 2005)

5) 3s the aboe rule applicable to banks?

Ans: &o! -anks, their business being i#pressed with public interest, are e"pected to e"ercise#ore care and prudence than priate indiiduals in their dealings, een those inolingregistered lands! =ence, for #erely relying on the certificates of title and for its failure toascertain the status of the #ortgaged properties as is the standard procedure in itsoperations, the bank is a #ortgagee in bad faith! ( %onsolidated Rural *an+ vs. %A, G.R.No. 13211, a'&ar 2005)

6) What are the re2uisites for legal ease#ent of right of way?

Ans: ;he following:

a) 3t is surrounded by other i##oables and has no ade2uate outlet to a public highwayC

b) pay#ent of proper inde#nityC

c) the isolation is not the result of its own actsC

d) the right of way clai#ed is at the point least preBudicial to the serient estateC and

e) to the e"tent consistent with the foregoing rule, where the distance fro# the do#inantestate to a public highway #ay be the shortest! ( Sps. dela %ru$ vs. Ra"iscal, G.R. No.137!!2, er&ar 4, 2005)

V

1) $ constructed a building on the land of - knowing that the land belongs to -! $ arranged for theissuance of a fraudulent title oer the land in his na#e!

a) What are the rights of - with respect to the building?

b) Will your answer be the sa#e if $ were in good faith?

Ans:

a) -ecause $ is in bad faith, - #ay de#and de#olition of the building at the e"pense $,or he #ay co#pel $ to pay the price of the land!

b) &o! 3f $ were in good faith, he cannot be co#pelled to buy the land if its alue isconsiderably #ore than that of the building, if the owner does not choose to

appropriate the building after proper inde#nity! =e shall pay reasonable rent!( Rosales vs. %asteltort, "#toer 5, 2005)

2) a) What are the two stages in e"propriation proceedings?

Ans8 "propriation proceedings consists of two stages: first, conde#nation of the property afterit is deter#ined that its ac2uisition will be for a public purpose or public use and, second,the deter#ination of Bust co#pensation to be paid for the taking of priate property to be#ade by the court with the assistance of not #ore than three co##issioners! ( -A vs.ivelondo, 404 SCRA 2003:)

b) What is the concept of public use?

Ans: ;he concept of public use is no longer li#ited to traditional purposes! =ere, as elsewhere,the idea that 7public use8 is strictly li#ited to clear cases of 7use by the public8 has beenabandoned! ;he ter# 7public use8 has now been held to be synony#ous with 7publicinterest8, 7public benefit,8 7public welfare,8 and 7public conenience!8 ( Rees vs. -A, 395SCRA 494 2003:)

c) What is the interest rate in e"propriation cases?




Ans: Hegal rate is 9I fro# the ti#e of taking to the ti#e of pay#ent! -ack rentals notrecoerable! ( (IAA vs. Rodri'ue$ )

V

1) What are the re2uisites of:

c) /esera ;roncal (p. 90, 1st Stud uide for the *ar )

d) .ideico##issary (ubstitution (p. 90, 2 'd Stud uide for the *ar )

2) What is disposi#io' #aptatoria+; 3s it alid? What is its effect on the testa#entary disposition?

Ans: ;he condition that the heir shall #ake so#e proision in his will in faor of the testator or ofany other person is what is known as a condition #aptatoria! 'onse2uently, if the testator#akes a testa#entary disposition in his will subBect to such a condition, it is known as adisposi#io' #aptatoria! nder our law, not only the condition but the entire testa#entarydisposition shall be oid (Art. !75, NCC). ;he reason for this is that sucession is an act ofliberality and not a contractual agree#ent! -esides, to per#it it would i#pair the heirs

freedo# of disposition with respect to his own property! .urther#ore, it would be e2uialentto allowing the testator to dispose of the property of another after the latters death (6a'resa 241).

) 0istinguish between the free portion and the disposable free portion?

Ans: Where there are other heirs entitled to legiti#e, like illegiti#ate children who are entitled toJ of the legiti#e of the legiti#ate children, the legiti#e of the latter shall be taken fro# thefree portion consisting of J of the hereditary estate! ;he free portion shall no longer bedisposable if the decedent is suried by legiti#ate children or descendants, the suriingspouse, and seeral illegiti#ate children so that there is nothing left for free disposal (Art.!95, NCC), such as when there is a concurrence of one legiti#ate child, the suriingspouse, and or #ore illegiti#ate children!

>) 0efine or e"plain the following concepts in succession:

a) accretion!

b) collation

Ans:

a) Accretion is a right by irtue of which, when two or #ore persons are called to thesa#e inheritance, deise or legacy, the part assigned to the one who renounces orcannot receie his share, or who died before the decedent, is added or incorporated tothat of his co@heirs, co@deisees, or co@legatees! (Art. 1015, NCC)

b) %ollation, under $rts! 1691 to 16FF of the &'', refers to the act of restoring to theco##on #ass of the hereditary estate, either actually or fictitiously, any property orright, which a co#pulsory heir, who succeeds with other co#pulsory heirs, #ay haereceied by way of donation or any other gratuitous title fro# the decedent, during thelifeti#e of the latter, but which is understood for legal purposes as an adance of hislegiti#e!

V

1) What are the re2uisites of a contract?

Ans: ;he following: %1) consent %) obBect certain %) cause or consideration!

2) What is a #o'tra#ti-pliedi'a#t+; Gie an e"a#ple (see p. 101, 1st Stud uide for the *ar )

) What are the essential characteristics of contracts?

a) Obligatory force K binding on the parties!

b) /elatiity of contract K binding only on the parties e"cept where there is a stipulation pour atrui infaor of a third party accepted by the latter!




c) <utuality of contracts K based on essential e2uality between the contracting parties! ;he obligationis oid for being potestatie if its co#pliance and alidity depends e"clusiely upon the will of one ofthe contracting parties!

d) $utono#y or freedo# of contracts K the parties #ay #ake any stipulation or coenant proided thatit is not contrary to law, #orals, good custo#s or public policy!

e) 'o#pli#entarity of contract or #o'tra#ts #o'str&ed togeter+ principle K the i#ple#entingagree#ent cannot ary the #ain agree#ent of which it is a part!

X

1) $ sells his car to - to be deliered to and be paid by - after one week! On the rd day, the 'ar is hitby lightning and is totally wrecked!

Who bears the risk of loss?

Ans: $ because ownership still re#ains with hi# and will be transferred to the -uyer only upon

deliery! ;he owner bears the risk of loss! /es perit do#ino! - is not obliged to pay $!

) a! 0istinguish between conentional subrogation of rights of creditors and assign#ent of credit!

b! 0oes assign#ent of credit re2uire the consent of creditors?

Ans: &o! <ere notice to creditor is sufficient! Please read pp! 1> to 19 of the nd Stud uidefor the *ar for a co#prehensie discussion)

) a! 0efine obligation?

Ans: $ Budicial necessity to gie, to do or not to do (Art. 115).

b! What are the sources of obligation?

Ans:

1) La/ , e!g!, support, ease#ent!

2) %ontract K law between the parties proided it is not contrary to law, #orals, goodcusto#s, public order or public policy!

3) 0uasi1contract K based on the e2uitable principle of un2ust enrich"ent !

a) solutio indebeti K to return what is receied by #istakeC and

b) ne'otionis" 'estio K to co#pensate for any benefit done een without an

agree#ent! 3n the /eised Penal 'ode, under *ustifying 'ircu#stance &o! >, $rt! 11,the person benefited by aoidance of greater eil or inBury is ciilly liable for theda#age, the only Bustifying circu#stance when there is a ciil liability inoled inconsonance with the e2uitable principle to preent unBust enrich#ent at the e"pense ofanother! ;he person benefited, not the actor, is liable!

4) 3elonies K acts or o#issions punishable by law!

5) 0uasi1delicts or tortuous acts by any person who, there being fault or negligence causesda#age to another!

c! 0efine the following:

1) .ortuitous eent

) "pro#ision

) 0elegacion

>) &oation

5) 0acion en pago




d! What are the different kinds of an obligation? (read 2 'd Stud uide for the *ar pp. 115131)

e! What are the #odes of e"tinguishing an obligation?

Ans: ;he following:

1) NO K &oation

2) CO K 'o#pensation

3) RE K /e#ission or 'ondonation of debt

4) PA K Pay#ent or perfor#ance

5) LO K Hoss of the thing due

6) AN K $nnul#ent

7) RE K fulfill#ent of a /esolutory condition

8) RE K /escission

9) PRES @ Prescription

X

1) "plain the concept and nature of natural obligations!

Ans: atural obli'ations, not being based on positie law but on e2uity and natural law, do notgrant a right of action to enforce their perfor#ance, but after oluntary fulfill#ent by theobligor, they authorize the retention of what has been deliered or rendered by reasonthereof (Art. 1423).

) What is the concept of 2uasi@contracts?

Ans: Arti#le 2142. 'ertain lawful, oluntary and unilateral acts gie rise to the Buridical relation of2uasi@contract to the end that no one shall be un2ustl enriched or benefited at thee4pense of another.

) 0efine:

a! &egotioru# gestio

b! (olutio 3ndebiti

Ans:

a. e'otioru" 'estio K Arti#le 2144. Whoeer oluntarily takes charge of the agency or#anage#ent of the business or property of another, without any power fro# the latter, isobliged to continue the sa#e until the ter#ination of the affair and its incidents, or tore2uire the person concerned to substitute hi#, if the owner is in a position to do so!

b. Solutio Indebitii K Arti#le 2154. 3f so#ething is receied when there is no right to de#andit, and it was unduly deliered through #istake, the obligation to return it arises!

X

1) $re corporations entitled to recoer #oral da#ages?

Ans: $s a general rule, a corporation is not entitled to recoer #oral da#ages because it isincapable of feeling pain and #ental anguish! =oweer, it #ay recoer da#ages in case oflibel or defa#ation!

) $ #arries - while $s #arriage to ' has not been dissoled! ' sues $ for -iga#y! ;hereafter, $files a case for annul#ent of #arriage against ' on the ground of fraud!


83558486 civil law pre week

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