Bar Exam 2010 Questions and Suggested Answers in CIVIL LAW by the UP Law Center

CIVIL LAW

NOTE:

Although the questions, as framed, do not require reasons for the “True or False” Answers, proper explanations are herein provided to aid in the evaluation of the answers of the examinees.

I

True or False.

1. Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse, the latter may re-marry by proving only that the foreign spouse has obtained a divorce against her or him abroad. (1%)

SUGGESTED ANSWER:

FALSE.

In Garcia v. Recio, 366 SCRA 437(2001), the SC held that for a Filipino spouse to have capacity to contract a subsequent marriage, it must also be proven that the foreign divorce obtained by the foreigner spouse gives such foreigner spouse capacity to remarry.

ALTERNATIVE ANSWER

TRUE.

Art 26 (2) (FC), clearly provides that the decree of divorce obtained abroad by the foreigner spouse is sufficient to capacitate the Filipino spouse to remarry.

1. X, a widower, died leaving a will stating that the house and lot where he lived cannot be partitioned for as long as the youngest of his four children desires to stay there. As coheirs and co-owners, the other three may demand partition anytime. (1%)

 

 

 

SUGGESTED ANSWER:

FALSE.

The other three co-heirs may not at any time demand the partition of the house and lot since it was expressly provided by the decedent in his will that the same cannot be partitioned while his youngest child desires to stay there. Article 1083 of the New Civil Code allows a decedert to prohibit, by will, the partition of a property in his estate for a period not longer than 20 years no matter what his reason may be. Hence, the three co-heirs cannot demand its partition at anytime but only after 20 years from the death of their father. Even if the deceased parent did not leave a will, if the house and lot constituted their family home, Article 159 of the Family Code prohibits its partition for a period of ten (10) years, or for as long as there is a minor beneficiary living in the family home.

II

Multiple choice.

A A had a 4-storey building which was constructed by Engineer B. After five years, the building developed cracks and its stairway eventually gave way and collapsed, resulting to injuries to some lessees. Who should the lessees sue for damages? (1%)

1. A, the owner
2. B, the engineer
3. both A & B

SUGGESTED ANSWER:

3. Both A & B.

The lessee may proceed against A for breach of contract, and against B for tort or statutory liability.

Under Article 1654 (2, of the) New Civil Code, the Lessor is obliged to make all the necessary repairs in order to keep the leased property suitable for the use to which it has been devoted. Consequently, under Article 1659 NCC, the proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it is due to the lack of necessary repairs.

Under Article 1723 NCC, the engineer or architect who drew up the plans and specifications for a building is liable for damages if within 15 years from the completion of the structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the ground. This liability may be enforced against the architect or engineer even by a third party who has no privity of contract with the architect or engineer under Article 2192 NCC.

ALTERNATIVE ANSWER

No. 1. A, the owner.

The lessee can sue only the lessor for breach of contract under Article 1659 in relation to Article 1654 NCC. The lessee cannot sue the architect or the engineer because there was no privity of contract between them. When sued, however, the lessor may file a third party claim against the architect or the engineer.

ALTERNATIVE ANSWER

No. 2. B, the Engineer.

Under Article 1723 (NCC), the engineer or architect who drew up the plans and specifications for a building is liable for damages if within 15 years from the completion ofthe structure, the same should collapse by reason of a defect in those plans and specifications, or due to the defects in the ground. Under Article 2192 (NCC), however, if the damages should be the result of any of the defect in the construction mentioned in Article 1723 (NCC), the third person suffering damages may proceed only against the engineer or architect or contractor within the period fixed therein. The damages suffered by the lessee in the problem are clearly those resulting from defects in the construction plans or specifications.

1. O, owner of Lot A, learning that Japanese soldiers may have buried gold and other treasures at the adjoining vacant Lot B belonging to spouses X & Y, excavated in Lot B where she succeeded in unearthing gold and precious stones. How will the treasures found by O be divided? (1%)
2. 100% to O as finder
3. 50% to O and 50% to the spouses X and Y
4. 50% to 0 and 50% to the state
5. None of the above

SUGGESTED ANSWER:

No. 4. None of the above.

The general rule is that the treasure shall belong to the spouses X and Y, the owners of Lot B. Under Article 438 (NCC), the exception is that when the discovery of a hidden treasure is made on the property of another and by chance, one-half thereof shall belong to the owner of the land and the other one-half is allowed to the finder. In the problem, the finding of the treasure was not by chance because O knew that the treasure was in Lot B. While a trespasser is also not entitled to any share, and there is no indication in the problem whether or not o was a trespasser,O is not entitled to a share because the finding was not “by chance”.

1. A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of land valued at P1 million. B was, however, out of the country at the time. For the donation to be valid, (1%)
2. B may e-mail A accepting the donation.
3. The donation may be accepted by B’s father
4. B can accept the donation anytime convenient to him.
5. B’s mother who has a general power of attorney may accept the donation for him.
6. None of the above is sufficient to make B’s acceptance valid

SUGGESTED ANSWER:

No. 5. None of the above is sufficient to make B’s acceptance valid.

Since the donation covered an immovable property, the donation and the acceptance must be in a public document. An e-mail is not a public document. Hence, No. I is false.

No. 2 and No. 4 are both false. The acceptance by the donee’s father alone or mother alone, even though in a public document, ‘s not sufficient because the father and the mother did not have a special power of attorney for the purpose. Under Article 745 (NCC), the donee must accept the donation personally, or through an authorized person with a special power of attorney for the purpose; otherwise, the donation shall be poid.

No. 3 is also false. B cannot accept the donation anytime at his convenience. Under Article 749 NCC, the donee may accept the donation only during the lifetime of the donor.

1. A executed a 5-page notarial will before a notary public and three witnesses. All of them signed each and every page of the will.

One of the witnesses was B, the father of one of the legatees to the will. What is the effect of B being a witness to the will? (1%)

1. The will is invalidated
2. “The will is valid and effective
3. The legacy given to B’s child is not valid

 

SUGGESTED ANSWER:

No. 3. The legacy given to B’s child is not valid.

The validity of the will is not affected by the legacy in favor of the son of an attesting witness to the will. However, the said legacy is void under Article 823 NCC.

ALTERNATIVE ANSWER

No. 2. The will is valid and effective.

Under Article 823 (NCC), the legacy given in favor of the son ofan instrumental witness to a wizz has no effect on the validity of the will Hence, the will is valid and effective.

III

Define, Enumerate or Explain. (2% each)

1. What is the difference between “guaranty” and *suretyship”?

SUGESTED ANSWER:

Guaranty and Suretyship distinguished:

1) The obligation in guaranty is secondary: whereas, in suretyship, it is primary.

2) In guaranty, the undertaking is to pay if the principal debtor cannot pay. whereas, in suretyship, the undertaking is to pay if the principal debtor does not pay.

3) In guaranty, the guarantor is entitled to the benefit of excussion; whereas, in suretyship the surety is not so entitled.

4) Liability in guaranty depends upon an independent agreement to pay the obligations of the principal If he fails to do so whereas, in suretyship, the surety assumes liability as a regular party.

 

5) The Guarantor insures the solvency of the principal debtor; whereas, the surety Insures the debt.

6)In a guaranty, the guarantor is subsidiarily liable; whereas, in 1 Suretyship, the surety binds himself solidarily with the principal debtor. (Art. 2047, Civil Code)

1. Define quasi tort. Who are the persons liable under quasi torts and what are the defenses available to them?

NOTE: It is recommended that the examinerexercise leniency and liberality in grading the answers given to this question. The term quasi-tort is not a part of legal developments in civil law. In Philippine Legal tradition, quasi-delict has beert treated as the closest civil law equlvalent of the common lawtort. In fact, in a number of Supreme Court decisions, the two terms have been considered synonymous. In reality, however, the common law tort is much broader in scope than the civil law quasi-delict.

In recent developments in common law, the concept of “quasi-torts” can be considered as the closest common law equivalent of the civil law concept of quasi-delict. This is because it is argued that the growing recognition of quasi-torts as a source of obligation Is hinged on the acceptance at common law of the civil law principles of quasi-delict. 1

FIRST SUGGESTED ANSWER

Quasi-tort is a legal concept upholding the doctrine that some legal duty exists that can not be classified strictly as a personal duty (that is, resulting in a tort), nor as a contractual duty (thus resulting in a breach of contract) but rather some other kind of duty recognizable by the law. “Tort” or “Quasi-Tort” is an Anglo American or Common Law concept, while “Deliet” or “Quasi-Delict” is a Civil Law concept. (Wikipedia Encyclopedia)

SECOND SUGGESTED ANSWER

Quasi-tort is considered as the equivalent of quasidelict. Hence the rules of the latter pertaining to persons who can be held liable and their defenses would also apply.

Those liable for quasi-delict include:

1. The tort feasor or the person causing damage to another through fault or negligence (Article 2176 NCC: and
2. Parsons vicariously Hable under Article 2180 (NCC).

The defenses available include:

1. That the defendant was not negligent or that he exercised due diligence (Article 2176 NCC).
2. That although the defendant is negligent, his negligence is not the proximate cause of the injury. (Article 2179 NCC).
3. That the plaintiff’s own negligence was the immediate and proximate cause of his injury (Article 2179 NCC).
4. That the person vicariously liable has observed all the diligence of a good father of a family to prevent damage (2180 NCC).
5. That the cause of action has prescribed after the lapse of 4 years (Article 1146 NOC). The fact that the plaintiff had committed contributory negligence is a partial defense (Article 2179 NCC).
6. Give at least two reasons why a court may assume jurisdiction over a conflict of laws case.

SUGGESTED ANSWER

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

2) Comity theory. The local court assumos jurisdiction based on the principle of comity or courtesy.

ALTERNATIVE ANSWER

1. Public Order. To maintain peace and order, disputes that disturb the peace of the forum should be settled by the courts of the forum even though the application of a foreign law is necessary for the purpose.
2. Humanitarian Principle. An aggrieved party should not be left without remedy in a forum even though the application of a foreign law by the courts of the forum is unavoidable in order to extend relief.

IV

Spouses B and G begot two offsprings. Albeit they had serious personality differences, the spouses continued to live under one roof. B begot a son by another woman. G also begot a daughter by another man.

A If G gives the surname of B to her daughter by another man, what can B do to protect their legitimate children’s interests? Explain. (5%)

SUGGESTED ANSWER

B can impugn the status of G’s daughter by another man as his legitimate daughter on the ground that for biological reason he could not have been the father of the child, a fact that may be proven by the DNA test. Having been born during the marriage between B and G, G’s daughter by another man is presumed as the child of B under Article 164 of the Family Code. In the same action to impugn, B can pray for the correction of the status of the said daughter in her record of birth.

 

1. If B acquiesces to the use of his surname by G’s daughter by another man, what is/are the consequence/s? Explain. (5%)

SUGGESTED ANSWER

If B acquiesces and does not file the action to impugn the legitimacy of the child within the prescriptive period for doing so in Article 170 of the Family Code, G’s daughter by another man shall be conclusively presumed as the legitimate daughter of B by G.

V

G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B. During the pendency of the case, the couple entered into a compromise agreement to dissolve their absolute community of property. B ceded his right to their house and lot and all his shares in two business firms to G and their two children, aged 18 and 19

B also opened a bank account in the amount of P3 million in the name of the two children to answer for their educational expenses until they finish their college degrees.

For her part, G undertook to shoulder the day-to-day living expenses and upkeep of the children. The Court approved the spouses’ agreement on September 8, 2000.

1. Suppose the business firm as suffered reverses, rendering G unable to support herself and the children. Can Gatill ask for support pendente lite from B? Explain. (3%)

SUGGESTED ANSWER

Yes, G can still ask for support from B because during the pendency of the action, the marriage between them is considered still subsisting (Article 68, Family Code). Being considered still married to each other, Band G still have the obligation to support each other. The compromise agreement cannot operate to waive future support when needed (Article 2035, Civil Code).

After the compromise agreement was approved by the court and the properties of the marriage were distributed, there remained no more common properties of B and G. While Article 198 of the Family Code appears to limit the source of support to the common properties of the said marriage in case of the pendency of an action to declare the nullity of marriage, Article 94 and Article 121 Indicate otherwise. Under the said Articles, the spouses remain personally and solidarily liable with their separate properties for support even though, for whatever reason, there are no more community or partnership properties left.

The judgment based on the compromise dissolving the property relations of B and G does not bar G from asking support pendente lite. The dissolution of the property relations of the spouses did not terminate the obligation between them to support each other. The declaration of the nullity of their marriage is what terminates the right of G to be supported by B as his spouse.

1. Suppose in late 2004 the two children had squandered the P3 million fund for their education before they could obtain their college degrees, can they ask for more support from B? Explain. (3%)

SUGGESTED ANSWER

Yes, the two children can still ask for support for schooling or training for some profession, trade or vocation, even beyond the age of majority until they shall have finished or completed their education Article 194, Paragraph 2, Family Code Javier v. Lucero, 94 Phil. 634 [1954]). Their having squandered the money given to them for their education will not deprive them of their right to complete an education, or to extinguish the obligation of the parents to ensure the future of their children.

VI

Gigolo entered into an agreement with Majorette for her to carry in her womb his baby via in vitro fertilization. Gigolo undertook to underwrite Majorette’s pre-natal expenses as well as those attendant to her delivery. Gigolo would thereafter pay Majorette P2 million and, in return; she would give custody of the baby to himn.

After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2 million, she engages your services as-her lawyer to regain custody of the baby.

2. What legal action can you file on behalf of Majorette? Explain. (2.5%)

FIRST SUGGESTED ANSWER

As her lawyer, I can file a petition for habeas corpus on behalf of Majorette to recover custody of her child. Since she is the mother of the child that was born out of wedlock, she has exclusive parental authority and custody over the child. Gigolo, therefore, has no right to have custody of the child and his refusal to give up custody will constitute illegal detention for which habeas corpus is the proper remedy.

SUGGESTED ANSWER

The action to regain custody will not prosper. In the first place Majorette can not regain custody of the baby. As surrogate mother she merely carries the child in her womb for its development. The child is the child of the natural parents – Gigolo and his partner. The agreement between Gigolo and Majorette is a valid agreement.

 

 Can Gigolo demand from Majorette the return of the P2 million if he returns the baby? Explain. (2.5%)

FIRST SUGGESTED ANSWER

No, he cannot. Both he and Majorette are guilty of violating the provision of the Anti-Child Abuse Law (RA7610) on child trafficking. Being in part delicto, the parties shall be left where they are and Gigolo cannot demand the return of what he paid.

SECOND SUGGESTED ANSWER

Yes. The agreement between Gigolo and Majorette is a valid agreement.

2. Who of the two can exercise parental authority over the child? Explain. (2.5%)

FIRST SUGGESTED ANSWER

Majorette, the mother, can exercise parental authority. Since the child was born out of wedlock, the child is illegitimate and the mother has the exclusive parental authority and custody over the child.

SECOND SUGGESTED ANSWER

Gigolo can exercise parental authority over the child. Majorette has no blood relation to the child. She is just a “carrier” of the child.

2. Is the child entitled to support and inheritance from Gigolo? Explain. (2.5%)

FIRST SUGGESTED ANSWER

If Gigolo voluntarily recognized the child as his illegitimate child in accordance with Article 175 in relation to Article 172 of the Family Code, the child is entitled to support and inheritance from Gigolo.

SECOND SUGGESTED ANSWER

Yes, because Gigolo is the natural and biological parent of the baby.

VII

G and B were married on July 3, 1989. On March 4. 2001, the friarriage, which bore no offspring, was declared void ab initio under Article 36 of the Family Code. At the time of the dissolution of the marriage, the couple possessed the following properties:

• a house and lot acquired by Bon August 3, 1988, one third (1/3) of the purchase price (representing down payment) of which he paid; one third (1/3) was paid by G on February 14, 1990 out of a cash gift given to her by her parents on her graduation on April 6, 1989; and the balance was paid out of the spouses’ joint income; and
• an apartment unit donated to B by an uncle on June 19, 1987

1. Who owns the foregoing properties? Explain. (5%)

SUGGESTED ANSWER

Since the marriage was declared void ab initio in 2001, no Absolute Community or Conjugal Partnership was ever established between B and G. Their property relation is governed by a “special co-ownership under Article 147 of the Family Code because they were capacitated to marry each other. Under that Article 147, wages and salaries of the former spouses” earned during their cohabitation shall be owned by them in equal shares while properties acquired thru their work or industry shall be owned by them in proportion to their respective contributions. Care and maintenance of the family is recognized as a valuable contribution. In the absence of proof as to the value of their respective contributions, they shall share equally.

If ownership over the house and lot was acquired by Bon August 3, 1988 at the time he bought it on Installment before he got married, he shall remain owner of the house and lot but he must reimburse G for all the amounts she advanced to pay the purchase price and for her one-half share in the last payment from their joint Income. In such case, the house and lot were not acquired during their cohabitation, hence, are not co-owned by Band G.

But if the ownership of the house and lot was acquired during the cohabitation, the house and lot will be owned is follows:

1) 1/3 of the house and lot is owned by B. He is an undivided co-owner to that extent for his contribution in its acquisition in the form of the down payment he made before the celebration of the marriage. The money he used to pay the down payment was not earned during the cohabitation, hence, It is his exclusive property.

2)1/3 of the house and lot is owned by G. She is an undivided co-owner to the extent for her contribution in its acquisition when she paid 1/ 3 of the purchase price using the gift from her parents. Although the gift was acquired by G

during her cohabitation with B, it is her exclusive property. It did not consist of wage or salary or fruit of her work or Industry.

3) 1/3 of the house is co-owned by Band G because the payment came from their co-owned funds, i.e., their joint income during their cohabitation which is shared by them equally in the absence of any proof to the contrary.

After summing up their respective shares, B and G are undivided co-owners of the house and lot in equal shares.

As to the apartment, it is owned exclusively by B because he acquired it before their cohabitation. Even if he acquired it during their cohabitation it will still be his exclusive property because it did not come from his wage or salary, or from his work or industry. It was acquired gratuitously from his uncle.

1. If G and B had married on July 3, 1987 and their marriage was dissolved in 2007, who owns the properties? Explain. (5%)

SUGGESTED ANSWER

The answer is the same as in letter A. Since the parties to the marriage which was later declared void ab initio were capacitated to marry each other, the applicable law under the New Civil Code was Article 144. This Article is substantially the same as Article 147 of the Family Code. Hence, the determination of ownership will remain the same as in question A. And even assuming that the two provisions are not the same, Article 147 of the Family Code is still the law that will govern the property relations of Band G because under Article 256, the Family Code has retroactive effect insofar as it does not prejudice or impair vested or acquired rights under the New Civil Code or other laws. Applying Article 147 retroactively to the case of G and B will not impair any vested right. Until the declaration of nullity of the marriage under the Family Code, B and G have not as yet acquired any vested right over the properties acquired during their cohabitation.

VIII

Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of their marriage, Rex begot a child by another woman. He is now 10 years of age.

On Lea’s discovery of Rex’s fathering a child by another woman, she filed a petition for legal separation which was granted

Rex now wants to adopt his illegitimate child.

2. Whose consent is needed for Rex’s adoption of his illegitimate child? (2.5%)

SUGGESTED ANSWER

The consent of the 14-year-old legitimate child, of the 10-year-old illegitimate child, and of the biological mother of the illegitimate child are needed for the adoption. (Section 7 and 9, RA 8552). The consent of Lei is no longer required because there was already a final decree of legal separation.

2. If there was no legal separation, can Rex still adopt his illegitimate child? Explain. (2.5%)

SUGGESTED ANSWER

Yes, he can still adopt his illegitimate child but with the consent of his spouse, of his 14-year-old legitimate child, of the illegitimate child, and of the biological mother of the illegitimate child (Section 7 and 9, RA 8552).

IX

Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she named Laurie. At 2G, Patrice married American citizen John who brought her to live with him in the United States of America. John at once signified his willingness to adopt Laurie.

Can John file the petition for adoption? If yes, what are the requirements? If no, why? (5%)

SUGGESTED ANSWER

No, John cannot file the petition to adopt alone. Philippine law requires husband and wife to adopt jointly except in certain situations enumerated in the law. The case of John does not fall in any of the exceptions. (R.A. 8552).

X

In 1997, B and G started living together without the benefit of marriage. The relationship produced one offspring, Venus. The couple acquired a residential lot in Parañaque. After four (4) years or in 2001, G having completed her 4year college degree as a fulltime student, she and B contracted marriage without a license.

The marriage of Band G was, two years later, declared null and void due to the absence of a marriage license.

1. If you were the judge who declared the nullity of the marriage, to whom would you award the lot? Explair brielly. [3%)

SUGGESTED ANSWER

Since the marriage was null and void, no Absolute Community or Conjugal Partnership was established between B and G. Their properties are governed by the “special co-ownership provision of Article 147 of the Family Code because both Band G were capacitated to marry each other. The said Article provides that when a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage, or under a void marriage: (1) their wages and salaries shall be owned by them through their work or industry shall be governed by the rules on co-ownership. In co-ownership, the parties are co-owners if they contributed something of value in the acquisition of the property. Their share is in proportion to their respective contributions. In an ordinary coownership the care and maintenance of the family is not recognized as a valuable contribution for the acquisition of a property. In the Article 147 “special co-ownership”, however, care and maintenance is recognized as a valuable contribution which will entitle the contributor to half of the property acquired.

Having been acquired during their cohabitation, the residential lot is presumed acquired through their joint work and industry under Article 147, hence, B and G are co-owners of the said property in equal shares.

Article 147 also provides that when a party to the void marriage was in bad faith, he forfeits his share in the co-ownership in favor of the common children or descendants. In default of children or descendants, the forfeited share shall belong to the innocent party. In the foregoing problem, there is no showing that one party was in bad faith. Hence, both shall be presumed in good faith and no forfeiture shall take place.

1. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)

SUGGESTED ANSWER

Venus is illegitimate. She was conceived and born outside a valid marriage. Thus, she is considered illegitimate (Article 165, Family Code). While Venus was legitimated by the subsequent marriage of her parents, such legitimation was rendered ineffective when the said marriage was later on declared null and void due to absence of a marriage license.

Under Article 178 of the Family Code, “legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation. The inclusion of the

 

that the Article’s application is limited to voidable marriages. It follows that when the subsequent marriage is null and void, the legitimation must also be null and void. In the present problem, the marriage between Band G was not voidable but void. Hence, Venus has remained an illegitimate child.

XI

The spouses Peter and Paula had three (3) children. Paula later obtained a judgment of nullity of marriage. Their absolute community of property having been dissolved, they delivered P1 million to each of their 3 children as their presumptive legitimes.

Peter later re-married and had two (2) children by his second wife Marie. Peter and Mare, having successfully engaged in business, acquired real properties. Peter later died intestate.

1. Who are Peter’s legal heirs and how will his estate be divided among them? (5%)

SUGGESTED ANSWER

The legal heirs of Peter are his children by the first and second marriages and his surviving second wife.

Their shares in the estate of Peter will depend, however, on the cause of the nullity of the first marriage. If the nullity of the first marriage was psychological incapacity of one or both spouses, the three children of that void marriage are legitimate and all of the legal heirs shall share the estate of Peter in equal shares. If the judgment of nullity was for other causes, the three children are illegitimate and the estate shall be distributed such that an illegitimate child of the first marriage shall receive half the share of a legitimate child of the second marriage, and the second wife will inherit a share equal to that of a legitimate child. In no case may the two legitimate children of the second marriage receive a share less than one-half of the estate which is their legitime. When the estate is not sufficient to pay all the legitimes of the compulsory heirs, the legitime of the spouse is preferred and the illegitimate children will suffer the reduction.

 

Computation:

A If the ground of nullity is psychological incapacity:

3 children by first marriage –                 1/6^th of the estate for each

2 children by second marriage –    1/6^th of the estate for each

surviving second spouse –                        1/6^th of the estate

 

 

1. If the ground of nullity is not psychological incapacity

2 legitimate children –                    -1/4 of the estate for each of second marriage

surviving second spouse                 -1/4 of the  estate

3 illegitimate children                    -1/12 of estate for each of first marriage

 Note: The legitime of an illegitimate child is supposed to be ya the legitime of a legitimate child or 1/ 8th of the estate. But the estate will not be sufficient to pay the said legitimes of the 3 illegitimate children, because only 1/4. of the estate is left after paying the legitime of the surviving spouse which is preferred. Hence, the remaining 1/4 of the estate shall be divided among the 3 illegitimate children.

1. What is the effect of the receipt by Peter’s 3 children by his first marriage of their presumptive legitimes on their right to inherit following Peter’s death? (5%)

SUGGESTED ANSWER:

In the distribution of Peter’s estate, one-half of the presumptive legitime received by the three children of the first marriage shall be collated to Peter’s estate and shall be imputed as an advance on their respective inheritance from Peter. Only half of the presumptive legitime is collated to the estate of Peter because the other half shall be collated to the estate of his first wife.

XII

On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove to school a car, a gift from his parents. On even date, as his class was scheduled to go on a field trip, his teacher requested him to accommodate in his car, as he did, four (4) of his classmates because the van rented by the school was too crowded. On the way to a museum which the students were scheduled to visit, Rozanno made a wrong maneuver, causing a collision with a jeepney. One of his classmates died. He and the three (3) others were badly injured.

A Who is liable for the death of Rozanno’s classmate and the injuries suffered by Rozarino and his 3 other classmates? Explain. (2%)

SUGGESTED ANSWER:

At the time the incident occurred in May 1989. Rozanno was still a minor. Being a minor, Article 218 of the Family Code applies. Pursuant to Article 218, the school, its administrators and teachers shall be liable for the acts of the minor Rozanno because of the special parental authority and responsibility that they exercise over him. This authority applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. The field trip, on which occasion Rozando drove the car, was an authorized activity, and, thus, Covered by the provision. Furthermore, the parents of Roxanno are subsidiarily liable pursuant to Article 219 (FC), and principally liable under Article 221 (FC), if they were negligent.

1. How about the damage to the jeepney? Explain.(2%)

SUGGESTED ANSWER:

With respect to the damages caused to the jeepney, only Rozanno should be held liable because his negligence or tortious act was the sole, proximate, and immediate cause thereof.

1. Under the same facts, except the date of occurrence of the incident, this time in mid-1994, what would be your answer? Explain. (2%)

SUGGESTED ANSWER:

Since Rotanno was 16 years old in 1989, if the incident happened sometime in the middle of 1994, Rozanno would have been 21 years old at that time. Hence, he was already of legal age. The law reducing the age of majority to 18 years took effect in December 1989.

Being of legal age, Articles 218, 219, and 221 of the Family Code are no longer applicable. In such case, only Rozanno will be personally responsible for all the consequences of his act unless the school or his parents were themselves also negligent and such negligence contributed to the happening of the incident. In that event, the school or his parents are not liable under Article 218, 219 or 221 of the Family Code, but will be liable under the general provisions of the Civil Code on

XIII

Franz was the owner of Lot E which was surrounded by four (4] lots one of which-Lot C-he also owned. He promised Ava that if she bought Lot E, he would give her a right of way in Lot C.

Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in Lot C.

Ava cultivated Lot E and used the right of way granted by Franz

Ava later found gainful employment abroad. On her return after more than 10 years, the right of way was no longer available to her because Franz had in the meantime sold Lot C to Julia who had it fenced,

A Does Ava have a right to demand from Julia the activation of her right of way? Explain. (2.5%)

SUGGESTED ANSWER:

Yes. Ava has the right to demand from Julia the activation of the right of way, for the following reasons: 1) An easement of right of way is a real right which attaches to, and is inseparable from, the estate to which it belongs. The sale of the property includes the easement or servitude, even if the deed of sale is silent on the matter. The vendee of the property in which a servitude or easement exists cannot close or put up obstructions thereon to prevent the dominant estate from using it. Ava’s working abroad for more than ten (10) years should not be construed as non-t18er, because it cannot be implied from the facts that she or those whom she left behind to cultivate the lot no longer use the right of way. Note: Since a right of way is a discontinuous easement, the period of 10 years of non-user shall be computed from the day it ceased to be used under Art. 6341(2) CC.

 

5) Renunciation or waiver of an easement must be specific, clear, express and made in a public instrument in accordance with Article 1358 of the New Civil Code.

ANOTHER SUGGESTED ANSWER:

Yes. Ava has the right to demand from Julia the activation of her right of way. A voluntary easement of right of way, like any other contract, could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. Also, like in any other contract, an casement is generally effective between parties, their heirs and assigns, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law (Unisource Commercial v. Chung, 593 SCRA 530 [2009]).

B Assuming Ava opts to demand a right of way from any of the owners of Lots A, B, and D, can she do that? Explain. (2.5%

SUGGESTED ANSWER:

Yes. Ava has the option to demand a right of way on any of the remaining lots of Franz more so after Franz sold Lot Cto Julia. The essential elements of a legal right of way under Article 649 and 650 ofthe New Civil Code are complied with.

ANOTHER SUGGESTED ANSWER:

Yes. Ava has the option to demand a right of way from the other lots. The law provides that whenever a piece of land acquired by sale, exchange or partition is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a night of way without indemnity (Art. 652, NCC).

 

ALTERNATIVE ANSWER:

No. There was merely a promise to Ava that a right of way shall be granted to her in Lot C If Ava purchased Lot E. The promise was not reduced into writing (Obra v. Baldra, 529 SCRA 621 [2007]). Hence, It was not or could not have been registered as to warn buyers of Lot C about the existence of the basement on the property. Not having been annotated on the TCT to Lot C, the buyer Acquired Lot Cfree from such right of way granted to Ava.

XIV

Primo owns a pet iguana which he keeps in A manmade pond enclosed by a fence situated in his residential lot. A typhoon knocked down the fence of the pond and the iguana crawled out of the gate of Primo’s residence. N, A neighbor who was passing by, started throwing stones at the iguana, drawing the iguana to move toward him. N panicked and ran but tripped on something and suffered a broken leg

Is anyone liable for N’s injuries? Explain. (4%)

SUGGESTED ANSWER:

No one is liable. The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the damage should come from force majeure or from the fault of the person who has suffered damage (Art. 3183, New Civil Code)

XV

A, B, and C entered into a partnership to operate a restaurant business. When the restaurant had gone past break-even stage and started to garner considerable profits, C died. A and continued the business without dissolving

the partnership. They in fact opened a branch of the restaurant, incurring obligations in the process. Creditors started demanding for the payment of their obligations.

A Who are liable for the settlement of the partnership’s obligations? Explain? (3%)

SUGGESTED ANSWER:

The two remaining partners, A and B, are Ilable. When any partner dies and the business is continued without any settlementofaccounts as between him or his estate, the surviving partners are held llable for continuing the business despite the death of C (Articles 1841, 1785, par. 2, and 1833 of the New Civil Codel

1. What are the creditors’ recourse/S? Explain. (3%)

SUGGESTED ANSWER:

Creditors can file the appropriate actions, for instance, an action for the collection of sum of money against the partnership at will” and if there are no sufficient funds, the creditors may go alter the private properties of A and B Article 816,New Coll Codel. Creditors may also sue the estate of C. The estate is not excused from the liabilities of the partnership even if c is dead already but only up to the time that he remained a partner (Article 1829, 1835. par. 2; NCC, Testate Estate of Mota v. Serra, 47 Phil. 464 (1925]). However, the liability of C’s individual property shall be subject first to the payment of his separate debts (Article 1835, New Civil Codei.

XVI

X was the owner of an unregistered parcel of land in Cabanatuan City. As she was abroad, she advised her sister Y via overseas call to sell the land and sign a contract of sale on her behalf.

 

Y thus sold the land to Bl on March 31, 2001 and executed a deed of absolute sale on behalf ofx. Bi fully paid the purchase price.

B2, unaware of the sale of the land to B1, signified to Y his interest to buy it but asked y for her authority from X Without informing X that she had sold the land to BI, Y sought X for a written authority to sell

X e-mailed Y an authority to sell the land Y thereafter sold the land on May 1, 2001 to B2 on monthly installment basis for two years, the first installment to be paid at the end of May 2001. Who between Bl and B2 has a better right over the land? Explain. (5%)

SUGGESTED ANSWER:

B-2 has a better title. This is not a case of double sale since the first sale was void. The law provides that when a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing: otherwise, the sale shall be void (Article 1874, New Civil Code). The property was sold by Y to B1 without any written authority from the owner X. Hence, the sale to B1 was void.

ALTERNATIVE SUGGESTED ANSWER:

Under the facts, B-1 has a better right to the land. Given the fact that the Deed of Sale in favor of B-1 and B2 are not inscribed in the Registry of Deeds, the case is governed by Article 1544 of the New Civil Code which provides that in case of double sales of an immovable property, the ownership shall pertain to the person who good faith was first in possession and in the absence thereof to the person who presents the oldest title, provided there is good faith.

In a case, the Supreme Court has held that in a sale of real estate the execution of a notarial document of sale is tantamount to delivery of the possession of the property sold. Ownership of the land therefore pertains to the 1” buyer. It may also be mentioned that under Act 3344 no

instruments or deed establishing. transmitting, acknowledging, modifying, or extinguishing right to real property not registered under Act 496 shall be valid except as between the parties. Thus, the Deed of Sale of B-2 has no binding effect on B-1.