ANSWERS TO BAR EXAMINATION QUESTIONS IN CIVIL LAW (2006)

8/13/2019 ANSWERS TO BAR EXAMINATION QUESTIONS IN CIVIL LAW (2006)

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CIVIL LAWAnswers to the BAR as Arranged by Topics (Year 1990-2006)

ANSWERS TO BAR

EXAMINATION QUESTIONS

IN

CIVIL LAWARRANGED BY TOPIC

(1990 2006)

First Edition Edit!d "nd Arr"n#!d $%&July 26, 2005

Atty. Janette Laggui-Icao andAtty. Alex Andrew P. Icao(Silliman University College of Law)

Latest Edition Edited and Arranged by:

ROMUA'O ' SE*ERIS IISilliman University College of Law

Fro+ t,! ANSWERS TO BAR EXAMINATION QUESTIONS$% t,! U- 'AW .OM-'EX

/-,iiin! Assoi"tion o3 '"4 S,oos

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!"WA"#

This work is not intended for sale or commerce. This work is freeware. It may be freely

copied and distributed, nevertheless, PERMISSI! T "P# from the editors is

$%&IS$'(E to protect the interest of the RI)I!$( S*R"ES+REERE!"ES of this

material-. It is primarily intended for all those who desire to have a deeper understandin of the

issues touched by the Philippine 'ar E/aminations and its trend. It is specially intended for

law students from the provinces who, very often, are recipients of deliberately distorted notes from

other unscrupulous law schools and students. Share to others this work and you will be richly

rewarded by )od in heaven. It is also very ood karma.

0e would like to seek the indulence of the reader for some 'ar 1uestions which

are improperly classified under a topic and for some topics which are improperly or

inorantly phrased, for the authors are 2ust 'ar Reviewees who have prepared this

work while reviewin for the 'ar E/ams under time constraints and within their limited

knowlede of the law. 0e would like to seek the reader3s indulence for a lot of

typoraphical errors in this work.

The Authors

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$able o% Contents

&E'E"AL P"I'CIPLE(...................................................................................................................... 10

Civil law vs. Common Law (1997).............................................................................................................. 10Effect of Obiter & Dissenting Opinion; C Decisions (199!)...............................................................................10Effectivit" of Laws (199#)........................................................................................................................ 10

E$%it" follows te Law ('##)................................................................................................................... 10gnorance of te Law vs. *ista+e of ,act (199-)............................................................................................. 11nferior Co%rts Decisions (199!)................................................................................................................ 11re/%0icial %estions (1997).................................................................................................................... 11

PE"(!'(........................................................................................................................................... 11

Cange of 2ame; 3n0er 45 9#!6 ('##-)...................................................................................................... 11Deat; Effects; im%ltaneo%s Deat (1996)................................................................................................... 12Deat; Effects; im%ltaneo%s Deat (1999)................................................................................................... 12Deat; Effects; im%ltaneo%s Deat ('###)................................................................................................... 12%ri0ical Capacit" vs. Capacit" to 5ct (199-)................................................................................................ 12%ri0ical Capacit"; 2at%ral ersons (1999)................................................................................................... 138aiver of 4igts ('##!).......................................................................................................................... 13

C!'LIC$ ! LAW(.......................................................................................................................... 13

5ppilicable Laws; laws governing contracts (199')......................................................................................... 135pplicable Laws; 5rts 1: 1- & 17 (1996)..................................................................................................... 135pplicable Laws; 5rts 1: 1-: 17 ('##')....................................................................................................... 145pplicable Laws; Capacit" to 5ct (1996)...................................................................................................... 145pplicable Laws; Capacit" to %" Lan0 (199).............................................................................................. 155pplicable Laws; Capacit" to Contract (199)............................................................................................... 155pplicable Laws; capacit" to s%ccee0 (1991)................................................................................................ 155pplicable Laws; contracts contrar" to p%blic polic" (199-).............................................................................. 155pplicable Laws; Contracts of Carriage (199).............................................................................................. 165pplicable Laws; Labor Contracts (1991)..................................................................................................... 165pplicable Laws; laws governing marriages (199')......................................................................................... 175pplicable Laws; laws governing marriages ('##)......................................................................................... 175pplicable Laws; ale of 4eal ropert" (199)............................................................................................ 17

5pplicable Laws; %ccession; ntestate &


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,amil" Aome; Dwelling Ao%se (199!).......................................................................................................... 24,amil"; Constit%tional *an0ates; Divorce (1991)............................................................................................ 24*arriage; 5nn%lment; Effects; 4e$%isites efore 4emarriage (199#).................................................................... 24*arriage; 5nn%lment; Bro%n0s (1991)........................................................................................................ 25*arriage; 5nn%lment; %0icial Declaration (199)...........................................................................................25*arriage; 5nn%lment; Legal eparation; rescription of 5ctions (199-)................................................................ 25*arriage; 5nn%lment; roper art" (199#)................................................................................................... 26*arriage; 5nn%lment; roper art" (199)................................................................................................... 26*arriage; Divorce Decree; @oi0 *arriages (199')........................................................................................... 26*arriage; Divorce Decrees; ,iliation of Cil0ren ('##).................................................................................... 26*arriage; Divorce Decrees; ,ilipino po%ses becoming 5lien (199-) ................................................................... 27*arriage; Divorce Decrees; ,ilipino po%ses becoming 5lien (1999) ................................................................... 27*arriage; Donations b" 4eason of *arriage; Effect of Declaration of 2%llit" (199-).................................................. 28*arriage; Bro%n0s; Declaration of 2%llit" 5nn%lment Legal eparation eparation of ropert" ('##)..................28*arriage; Bro%n0s; 2%llit"; 5nn%lment; Legal eparation (1997)........................................................................ 29*arriage; Legal eparation; Declaration of 2%llit" ('##').................................................................................. 29*arriage; Legal eparation; Bro%n0s; rescriptive erio0 (199!)........................................................................29*arriage; Legal eparation; *%t%al g%ilt ('##-)............................................................................................. 29*arriage; 2on?igamo%s *arriages ('##-)................................................................................................... 30*arriage; ropert" 4elations; @oi0 *arriages (1991)....................................................................................... 30*arriage; s"cological ncapacit" (199-)................................................................................................. 30*arriage; s"cological ncapacit" ('##-)................................................................................................. 31

*arriage; s"cological ncapacit" ('##-)................................................................................................. 31*arriage; 4e$%isites (199)................................................................................................................... 31*arriage; 4e$%isites (1999)................................................................................................................... 32*arriage; 4e$%isites; *arriage License (199-).............................................................................................. 32*arriage; 4e$%isites; *arriage License ('##').............................................................................................. 33*arriage; 4e$%isites; olemni>ing Officers (199!).......................................................................................... 33*arriage; 4e$%isites; @oi0 *arriage (199).................................................................................................. 33*arriage; @oi0 *arriages ('##!)................................................................................................................ 34*arriage; @oi0 *arriages ('##-)................................................................................................................ 34*arriage; @oi0 *arriages; s"cological ncapacit" ('##')............................................................................... 35arental 5%torit"; Cil0 %n0er 7 "ears of age ('##-)...................................................................................... 35arental 5%torit"; pecial arental 5%torit"; Liabilit" of


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Aeirs; ntestate Aeirs; 4eserva


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Easements; 4igt of 8a"; 4e$%isites (199-)................................................................................................. 63E/ectment %it vs. Cancellation of ensip 4e$%irement ('##)..................................................................................... 6950verse Claims; 2otice of Lev" (1996)........................................................................................................ 695nnotation of Lis en0ens; 8en roper ('##1)............................................................................................ 70,oresore Lan0s ('###).......................................................................................................................... 70,orger"; nnocent %rcaser; Aol0er in a0 ,ait ('##).................................................................................. 70,orger"; nnocent %rcaser; *irror rinciple (1991)................................................................................... 71,ra%0; roc%rement of atent; Effect ('###)................................................................................................. 71Aomestea0 atents; @oi0 ale (1999)......................................................................................................... 71nnocent %rcaser for @al%e ('##1)........................................................................................................... 72*irror rinciple (199#)........................................................................................................................... 72*irror rinciple; ,orger"; nnocent %rcaser (1999)...................................................................................... 732otice of Lis en0ens (199)................................................................................................................... 73

2otice of Lis en0ens;


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2at%re of Contracts; 4elativit" of Contracts ('##')......................................................................................... 824escission of Contracts; roper art" (199-)................................................................................................ 82

!LI&A$I!'(.................................................................................................................................... 83

5leator" Contracts; Bambling ('##!).......................................................................................................... 83Con0itional Obligations ('###)................................................................................................................. 83Con0itional Obligations ('##)................................................................................................................. 83Con0itional Obligations; romise (1997)..................................................................................................... 84Con0itional Obligations; 4esol%tor" Con0ition (1999)..................................................................................... 84E=ting%isment; 5ssignment of 4igts ('##1)

...............................................................................................84

E=ting%isment; Ca%se of 5ction ('##!)...................................................................................................... 85E=ting%isment; Compensation ('##')........................................................................................................ 85E=ting%isment; Compensation vs. a"ment (1996)........................................................................................ 85E=ting%isment; Compensationet?Off; an+s (1996)................................................................................. 85E=ting%isment; Con0onation ('###).......................................................................................................... 85E=ting%isment; E=traor0inar" nflation or Deflation ('##1)............................................................................... 86E=ting%isment; Loss (199!).................................................................................................................. 86E=ting%isment; Loss; mpossible ervice (199).......................................................................................... 86E=ting%isment; 2ovation (199!).............................................................................................................. 87E=ting%isment; a"ment (199)............................................................................................................. 87Liabilit"; Lease; oint Liabilit" ('##1).......................................................................................................... 87Liabilit"; oli0ar" Liabilit" (1996).............................................................................................................. 87Liabilit"; oli0ar" Obligation (199')........................................................................................................... 88Liabilit"; oli0ar" Obligation; *%t%al B%arant" ('##)..................................................................................... 88Loss of te ting 0%e; ,orce *a/e%re ('###)................................................................................................. 882on?a"ment of 5morti>ations; %b0ivision %"er; 8en /%stifie0 ('##)............................................................. 89erio0; %spensive erio0 (1991).............................................................................................................. 89

$"+($................................................................................................................................................ 89

E=press


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Leasee & Lessor; 4igts an0 Obligations (199#)............................................................................................ 98Leasee; Deat


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Defense; D%e Diligence in election ('##)................................................................................................. 112,iling of eparate Civil 5ction; 2ee0 for 4eservation ('##)............................................................................ 112,ort%ito%s Event; *ecanical Defects ('##')............................................................................................... 112Liabilit"; 5irline Compan"; 2on?erformance of an Obligation ('##!)................................................................. 112Liabilit"; 5irline Compan"; 2on?erformance of an Obligation ('##)................................................................. 113Liabilit"; Emplo"er; Damage ca%se0 b" Emplo"ees (1997).............................................................................. 113Liabilit"; owner wo was in te veicle (199-)............................................................................................. 114Liabilit"; owner wo was in te veicle (1996)............................................................................................. 114Liabilit"; owner wo was in te veicle ('##')............................................................................................. 114*oral Damages & 5tt" ,ees ('##')........................................................................................................... 114*oral Damages; 2on?4ecover"


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SCRA 40[1986]).

(Arsenal v IAC,143


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&E'E"AL P"I'CIPLE(Civil law vs. Common Law (1997)How would you compare the Civil Lawsystem in its governance and trend withthat of the Common Law system?(+&&E($E# A'(WE":

As regards "governance":Governance in Civil Law is codal, statutoryand written law. t is additionally derivedfrom case law. Common law is !asicallyderived from case law.

As regards "trend":Civil law is now tending to rely more and moreon decisions of the courts eplaining thelaws. Common law is now codifying lawsmore and more. #o they are now mergingtowards similar systems.

Additional Answers:

$. C%&&%' LA( refers to the traditional

part of the law as distinct fromlegislation) it refers to the universal partof law as distinct from particular localcustoms *+ncyclopedia Americana, ol.-.%n the other hand, CL LA( isunderstood to !e that !ranch of lawgoverning the relationship of personsin respect of their personal andprivate interests as distinguishedfrom !oth pu!lic and internationallaws.

n common law countries, the traditionalresponsi!ility has for the most part !eenwith the /udges) in civil law countries,the tas0 is primarily reposed onthe lawma0ers. Contemporarypractices, however, so indicate atrend towards centrali1ing that functionto professional groups that mayindeed, see the gradual assimilation intime of !oth systems. 2itug, Civil. Lawand 3urisprudence, p. 44

5. n Civil Law, the statutes theoretically ta0e

precedence over court decisionsinterpreting them) while in CommonLaw, the court decisions resolvingspecific cases are regarded as lawrather than the statutes themselveswhich are, at the start, merelyem!odiments of case law. Civil Law iscode law or written law, while CommonLaw is case law. Civil Law adoptsthe deductive method 6 from the generalto the particular, while the Common Lawuses the inductive approach 6 from theparticular to the general. Common Law

relies on e7uity. Civil Law anchors itselfon the letter of the law. 8he civilists arefor the /udge6proof law even as theCommon Law s /udge6made law. Civil Law

/udges are merely supposed to applylaws and not interpret them.

Effect of Obiter & Dissenting Opinion; C Decisions (199!)

5 (hat are the !inding effects of an o!iterdictum and a dissenting opinion?9 How can a decision of the #upreme Court

!e set aside?AL$E"'A$IVE A'(WE"(:

5 'one. %!iter dictum and opinions are not

necessary to the determination of a case.

8hey are not !inding and


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cannot have the force of official precedents.t is as if the Court were turning aside fromthe main topic of the case to collateralsu!/ects: a dissenting opinion affirms oroverrules a claim, right or o!ligation. tneither disposes nor awards anything itmerely epresses the view of the dissenter.*Civil Code, aras;

9 A decision of a division of the #upremeCourt may!e set aside !y the #upreme Courtsitting en !anc, a #upreme Court decisionmay !e set aside !y a contrary ruling of the#upreme Court itself or !y a correctivelegislative act of Congress, although saidlaws cannot adversely affect those favoredprior to the #upreme Court decision. 2CivilCode, aras.

Effectivit" of Laws (199#)

After a devastating storm causing widespreaddestruction in four Central Lu1on provinces,the eecutive and legislative !ranches ofthe government agreed to enact a speciallaw appropriating $ !illion for purposesof relief and reha!ilitation for theprovinces. n view of the urgent nature of thelegislative enactment, it is provided in itseffectivity clause that it shall ta0e effectupon approval and after completion ofpu!lication in the %fficial Ga1ette and anewspaper of general circulation in thehilippines. 8he law was passed !y theCongress on 3uly $, $


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!ut never against statutory law. (Toyota Motor!"l. # CA

$. 8he civil action involves an issue similaror intimately

$16 SCRA $36 [199$]).

related to the issue raised in the criminalaction, and

gnorance of te Law vs. *ista+e of ,act (199-)

5. the resolution of such issue determineswhether or notthe criminal action may proceed.

s there any difference in their legal effect!etween

ignorance of the law and ignorance or mista0e offact? *c Conse7uences(+&&E($E# A'(WE": 8he criminal case must !e suspended. 8hus,

in a criminal>es, there is a difference. (hile ignorance of thelaw is not case for damages to oneDs property, a

civil action thatan ecuse for not complying with it,ignorance of fact involves the ownership of said property

should first !eeliminates criminal intent as long as there is nonegligence

resolved *Ee Leon vs. &a!anag. 9F hil. 5=5*Art, 'CC. n addition, mista0e on a dou!tful ordifficult7uestion of law may !e the !asis of goodfaith *Art. 5.

PE"(!'('CC. &ista0e of fact may, furthermore, vitiateconsent in acontract and ma0e it voida!le *Art. $9es. ignorance of the law differs in legaleffect from

irthoussous delos #antos filed a petitionfor change of

gnorance or mista0e of fact. 8he former doesnot ecuse a name with the %ffice of the Civil Iegistrar of

&andaluyongparty from the legal conse7uences of hisconduct while the

City under the administrative proceedingprovided in

latter does constitute an ecuse and is a legaldefense.

Iepu!lic Act 'o.


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and 7ualities sufficient for its consideration asa rule of "ll t!e 'et"t"on *or +!ane o* na&e o* -ess

%elos Santos to/urisprudence *Civil Code, aras. Ro/erto %elos Santos n%er Re'/l"+ A+t o.

9048 'ros'er

4re5%0icial 6%estions (1997)2'la"n. (10)(+&&E($E# A'(WE": 'o, under the law, 3esus mayonlyn the contet that the term is used in Civil Law,

state the change his name once. n addition, thepetition for change*a concept, *! re7uisites and *c

conse7uences of a of name may !e denied on the following

grounds:pre/udicial 7uestion.

*$3esus is neither ridiculous, nor taintedwith dishonor

(+&&E($E# A'(WE":nor etremely difficult to write orpronounce.

*a Concept*5 8here is no confusion to !e avoided orcreated with

A pre/udicial 7uestion is one which must !edecided first

the use of the registered first name ornic0name of the

!efore a criminal action may !e instituted ormay proceed

petitioner.!ecause a decision therein is vital to the/udgment in the *9 8he petition involves the same entry in

the same docu6criminal case. n the case of eo'le vs. A%eloAraon (5 ment, which was previously corrected

or changed7930, e/. 1, 1974), the #upreme Courtdefined it as one under this %rder 2Iules and Iegulations

mplementingwhich arises in a case, the resolution of which7uestion is a

IA


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spelling, visi!le to the eyes or o!vious to theunderstanding,

a!solute community amounting to $&illion esos. His

and can !e corrected or changed only !yreference to other

wife, will, therefore, inherit %.5 &illionesos and his

eisting records. rovided, however, that nocorrection parents will inherit =.5 &illion esos.must involve the change of nationality, age,status or se of

(hen &rs. Cru1 died, she was succeeded !yher parents as

the petitioner.

her intestate heirs. 8hey will inherit all

of her estateconsisting of her =. &illion half share inthe a!solutecommunity and her =.5 &illioninheritance from her

Deat; Effects; im%ltaneo%s Deat (1993) hus!and, or a total of =.-= &illion esos.3aime, who is , and his son, (illy, who is 5,died in a

n sum, the parents of &r. Cru1 will inherit5=,=== esos

plane crash. 8here is no proof as to who diedfirst. 3aimeDsonly surviving heir is his wife, 3ulia, who isalso (illyDs

while the parents of &rs. Cru1 will inherit-=,=== esos.

mother. (illyDs surviving heirs are his mother,

3ulia and his *! 8his !eing a case of succession, in thea!sence ofwife, (ilma.

$.n the settlement of 3aimeDsestate, can (ilma

proof as to the time of death of each of thespouses, it is

successfully claim that her late hus!and,(illy had a

presumed they died at the same time and notransmission of

hereditary share since he was much youngerthan his father

rights from one to the other is deemed tohave ta0en place.

and, therefore, should !e presumed tohave survived

8herefore, each of them is deemed to have anestate valued

longer? 29B;at ==,===,==, or one6half of their con/ugalproperty of

5. #uppose 3aime had a life insurance policywith his wife,

$million.

8heir respective parents will thusinherit the

3ulia, and his son, (illy, as the!eneficiaries.

Can(ilma

entire $ &illion in e7ual shares, of==,===.== per set of

successfully claim that one6half of theproceeds should parents.!elong to (illyDs estate? K5B3

Deat; Effects; im%ltaneo%s Deat ('###)(+&&E($E# A'(WE":$. 'o, (ilma cannot successfully claim that(illy had a

! Cristy and her late hus!and Luis had twochildren, Iose

hereditary share in his fatherDs estate. nderArt. J9, Civil

and atric0, %ne summer, her mother6in6law,aged -=, too0

Code, two persons "who are called to succeedeach other"

the two children, then aged $= and $5, withher on a !oat

are presumed to have died at the same time, inthe a!sence

trip to Ce!u. nfortunately, the vessel san0

en route, andof proof as to which of them died first. 8hispresumption of

the !odies of the three were never found.'one of the

simultaneous death applies in cases involvingthe 7uestion

survivors ever saw them on the water. %n thesettlement of

of succession as !etween the two who died,who in this case

her mother6in6lawDs estate, Cristy files a claimfor a share of

are mutual heirs, !eing father and son. her estate on the ground that the same wasinherited !y her

(+&&E($E# A'(WE": children from their grandmother inrepresentation of their5. >et, (ilma can invo0e the presumption of

survivorship father, and she inherited the same fromthem. (ill herand claim that one6half of the proceeds should

!elong to action prosper? *5B


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(illyDs estate, under #ec. 9 *// par. Iule$9$, Iules of (+&&E($E# A'(WE":Court, as the dispute does not involvesuccession. nder

'o, her action will not prosper. #ince therewas no proof as

this presumption, the person !etween the agesof $ and =

to who died first, all the three are deemed tohave died at

years is deemed to have survived one whoseage was over

the same time and there was no transmissionof rights from

= at the time of their deaths. 8he estate of(illy endowed

one to another, applying Article J9 of the 'ewCivil Code.

with /uridical personality stands in place andstead of (illy, AL$E"'A$IVE A'(WE":

as !eneficiary.'o, her action will not prosper. nder ArticleJ9 of the

Deat; Effects; im%ltaneo%s Deat (1999)

'ew Civil Code, inasmuch as there is no proofas to whodied first, all the three are presumed tohave died at thesame time and there could !e notransmission of rights

&r. and &rs. Cru1, who are childless, met witha seriousmotor vehicle accident with &r. Cru1 at thewheel and &rs.

among them. Her children not havinginherited from their

Cru1 seated !eside him, resulting in the instantdeath of &r.

grandmother. Cristy has no right to share inher mother6in6

Cru1. &rs. Cru1 was still alive when help came!ut she also

lawDs estate. #he cannot share in her ownright as she is not

died on the way to the hospital. 8he coupleac7uired

a legal heir of her mother6in6law. 8hesurvivorship

properties worth %ne &illion *$ ,===,===.==esos during

provision of Iule $9$ of the Iules of Courtdoes not apply

their marriage, which are !eing claimed !ythe parents of

to the pro!lem. t applies only to thosecases where the

!oth spouses in e7ual shares. s the claim of!oth sets of issue involved is not succession.parents valid and why? *9B

%ri0ical Capacit" vs. Capacit" to 2ct (199-)

*! #uppose in the preceding 7uestion, !oth&r. and &rs.

Cru1 were already dead when help came, sothat no6!ody Eistinguish /uridical capacity fromcapacity to act,could say who died ahead of the other, wouldyour answer

(+&&E($E# A'(WE":

3IECAL CAAC8> is the fitness to !e thesu!/ect of!e the same to the 7uestion as to who are

entitled to the legal relations while CAAC8> 8% AC8 is thepower orproperties of the deceased couple?

*5B to do acts with legal effect. 8he former isinherent in every(+&&E($E# A'(WE":natural person and is lost only through deathwhile the latter

*a 'o, the claim of !oth parents is not valid.(hen &r.

Cru1 died, he was succeeded !y his wife and hisparents as

is merely ac7uired and may !e lost even!efore death *Art.

his intestate heirs who will share his

estate e7ually. His 9-, 'CC.estate was =. &illion pesos which is his halfshare in the AL$E"'A$IVE A'(WE"0

Page 12 of 119


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3uridical capacity, as distinguished fromcapacity to act: *a

conditions detrimental to the moral well6!eing of their

the former is passive while the latter is active,*! the former

children acting in the movies is in violationof the amily

is inherent in a person while the latter is merelyac7uired, *c

Code and La!or laws. 8hus, the waiver isinvalid and not

the former is lost only through death while thelatter may !e !inding.lost through death or restricted !y causes otherthan death,and d the former can eist without capacityto act while

8he Child La!or Law is a mandatory andprohi!itory law

the latter cannot eist without /uridicalcapacity.

and the rights of the child cannot !e waivedas it is contrary

%ri0ical Capacit"; at%ral 4ersons (1999)

to law and pu!licpolicy.

+lated that her sister who had !een married forfive years

C!'LIC$ ! LAW(was pregnant for the first time, Alma donated$==,===.==to the un!orn child. nfortunately, the !a!ydied one hourafter delivery. &ay Alma recover the $==.===.==that she

2ppilicable Laws; laws governing contracts (199')had donated to said !a!y !efore it was !ornconsideringthat the !a!y died? #tated otherwise, is thedonation valid

4 and > entered into a contract in Australia,where!y it was

and !inding? +plain. *Bagreed that 4 would !uild a commercial!uilding for > in

(+&&E($E# A'(WE": the hilippines, and in payment for theconstruction, > will8he donation is valid and !inding, !eing an act

favora!le to transfer and convey his cattle ranch locatedin the nitedthe un!orn child, !ut only if the !a!y had an

intra6uterine #tates in favor of4.life of not less than seven months and pro6vided

there was (hat law wouldgovern:due acceptance of the donation !y the

proper person a 8he validity of thecontract?representing said child. f the child had less

than seven ! 8he performance of thecontract?months of intra6uterine life, it is not deemed

!orn since it c 8he consideration of thecontract?died less than 5J hours following its delivery, in

which ease (+&&E($E# A'(WE":the donation never !ecame effective since thedonee never

*a 8he validity of the contract will !egoverned !y

!ecame a person, !irth !eing determinative ofpersonality.

Australian law, !ecause the validity refers tothe element of

AL$E"'A$IVE A'(WE": the ma0ing of the contract in thiscase.+ven if the !a!y had an intra6uterine life ofmore than *%ptional Addendum:"... unless the parties

agreed to !eseven months and the donation was properlyaccepted, it

!ound !y anotherlaw".M

would !e void for not having conformed withthe properform. n order to !e valid, the donation andacceptance of *!

8he performance will !e governed !y thelaw of the

personal property eceeding five thousandpesos should !e

hilippines where the contract is to !eperformed.

in writing. *Article -JF, par.9 *c 8he consideration will !e governed !y

the law of the


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8aiver of igts ('##!)nited #tates where the ranch islocated.

N. E%', an American !usinessman, securedparental

*%ptional Addendum: n the foregoing cases,when the

consent for the employment of five minors toplay certain

foreign law would apply, the a!sence of proofof that

foreign law would render hilippine lawapplica!leroles in two movies he was producing at home

in &a0ati. under the "eclectictheory".8hey wor0ed at odd hours of the day and night,

!ut always

accompanied !y parents or other adults. 8heproducer paid2pplicable Laws; 2rts 1: 1- & 17 (1993)the children talent fees at rates !etter than adult

wages. 3uan is a ilipino citi1en residing in 8o0yo,3apan. #tate

Nut a social wor0er, E+N, reported to %#(Ethat these

what lawsgovern:$. His capacity to contract marriage in

3apan, 2 $B;children often missed going toschool.

8heysometimes

5. His successional rights as regards hisdeceased ilipino

dran0 wine, aside from !eing eposedto drugs.

nsome

fatherDs property in 8eas, .#.A.2$B;

scenes, they were filmed na0ed or in revealingcostumes. n

9. 8he etrinsicvalidity of the

last will andtestament

his defense, E%' contended all these were partof artistic

which 3uan eecuted while so/ourning in#wit1erland.freedom and culturalcreativity.

'one

ofthe parents

25B;complained, said E%'. He also said they signeda contract J. 8he intrinsic validity of said will.

*$Bcontaining a waiver of their right to file anycomplaint inany office or tri!unal concerning the wor0ingconditions of (+&&E($E# A'(WE":their children acting in themovies. $.

3uanDs

capacity to

contract

marriage

isgoverned

s the waiver valid and !inding? (hyor why not? +plain.

!y hilippinelaw 6

i.e., the amily Code6pursuant to Art.

$, Civil Code, which provides that our lawsrelating to,

*B among others, legal capacity of persons are!inding upon(+&&E($E# A'(WE": citi1ens of the hilippines even though living

a!road.8he waiver is not valid. Although thecontracting partiesmay esta!lish such stipulations, clauses,terms and (+&&E($E# A'(WE":conditions as they may deem convenient, theymay not do 5.

Ny way of eception to the general rule ofle rei sitae

so if such are contrary to law, morals, goodcustoms, pu!lic

prescri!ed !y the first paragraph of Art. $.Civil Code, a

order, or pu!lic policy *Article $9=, CivilCode. 8he

personDs successional rights are governed !y thenational law

parentsD waiver to file a complaint concerning

the wor0ing

of the decedent *5nd par.. Art. $. #ince

3uanDs deceased

Page 13 of 119


19/233

CIVIL LAWAnswers to the BAR as Arranged by Topics (Year 1990-

2006) father was a ilipino citi1en, hilippine law governs3uanDs

successional rights.*5. (ith respect to elipe the divorce isvalid, !ut withrespect to elisa it is not. 8he divorce willnot capacitate

A'!$E" A'(WE": elisa to remarry !ecause she and elipe were!oth ilipinos5. 3uanDs successional rights are governed !y

hilippine law, at the time of their marriage. However, in

E%3 %pinionpursuant to Article $=9< and the secondparagraph of 'o. $9J series of $


20/233

employment. He sets up his minority as adefense and as0selipe married #agundina, a ilipino Citi1en. n

5==$, ilipe, for annulment of the contract on that ground.8he plaintiffthen domiciled in Los Angeles, California, died,

leaving one disputes this !y alleging that since thecontract was eecutedchild !y elisa, and another one !y #agundina.

He left a will in the hilippines under whose law the age ofma/ority is $Fwhich he left his estate to #agundina and his

two children years, he was no longer a minor at the time ofperfection of

and nothing to elisa. the contract.#agundina files a petition for the pro!ate ofelipeOs will. $.

(ill the suit prosper?29B;

elisa 7uestions the intrinsic validity of the will,arguing that

5. #uppose 4> Corporation is impleadedas a co6

her marriage to elipe su!sisted despitethe divorce

defendant, what would !e the !asis of itslia!ility, if any?

o!tained !y elipe !ecause said divorce is notrecogni1ed in 25B;the hilippines. or this reason, she claimsthat the (+&&E($E# A'(WE":properties and that #agundina has no successionalrights.

$. 8he suit will not prosper under Article $,Civil Code,

A.s the divorce secured !y elipe inCalifornia 'ew 3ersey law governs rancis Al!ertDscapacity to act,recogni1a!le and valid in the hilippines?How does it

!eing his personal law from the standpointof !oth his

affect elipeOs marriage to elisa?+plain. *5B.

nationality and his domicile. He was,therefore, a minor at

N. (hat law governs the formalities of thewill? +plain. the time he entered into the contract.

*$B AL$E"'A$IVE A'(WE":C. (ill hilippine law govern theintrinsic validity

ofthe

$. 8he suit will not prosper. Neing a .#.national, Al!ertDscapacity to enter into a contract is determined!y the law ofwill? +plain. *5Bthe #tate of which he is a national, underwhich he to still a(+&&E($E# A'(WE":

A.*$. 8he divorce secured !y elipe in

California isminor. 8his is in connection with Article $of the Civil

recogni1a!le and valid in the hilippines!ecause he was no

Code which em!odies the said nationalityprinciple of le

longer a ilipino at that time he secured it,Aliens may

patriae. (hile this principle intended toapply to ilipino

o!tain divorces a!road which may !erecogni1ed in the

citi1ens under that provision, the #upremeCourt in Iecto v.

hilippines provided that they are validaccording to their

Harden is of the view that the statusor capacity of

national law *an Eorn . Iomillo, 3r., $9 Corporation, having enticed rancis

Al!ert to hilippines.!rea0 his contract with the plaintiff, may !eheld lia!le for *a

#uppose that #wiss law does not allowillegitimate

damages under Art. $9$J, Civil Code. children to inherit, can 3ane, who is arecogni1ed illegitimate

AL$E"'A$IVE A'(WE": child, inherit part of the

properties of

3aco!

under5. 8he !asis of lia!ility of 4> Corporation

would !e hilippinelaw?Article 5F of the Civil Code which states that:*! Assuming that 3aco! eecuted a willleaving certain

"nfair competition in agricultural,commercial, or

properties to 3ane as her legitime inaccordance with the law

industrial enterprises or in la!or throughthe use of

of succession in the hilippines, will suchtestamentary

force, intimidation, deceit, machination orany other

disposition !evalid?

un/ust, oppressive or highhanded methodshall give rise

(+&&E($E# A'(WE":to a right of action !y the person who

there!y suffers A. >es. As stated in the pro!lem. #wiss lawdoes not allowdamage

." illegitimate children to inherit Hence, 3anecannot inheritA'!$E" A'(WE": the property of 3aco! under

hilippine law.5. 'o lia!ility arises. 8he statement of thepro!lem does notin any way suggest intent, malice, or even0nowledge, on the (+&&E($E# A'(WE":part of 4> Corporation as to the contractualrelations

N. 8he testamentary disposition will not !evalid if it would

!etween Al!ert and ANC Corporation. contravene #will law) otherwise, thedisposition would !e

2pplicable Laws; Capacit" to %" Lan0 (199)

valid. nless the #wiss law is proved, it would!e presumedto !e the same as that of hilippine law underthe Doctrine of9. (hat law governs the capacity of the ilipino

to !uy the


22/233

ProcessualPresumption.

land? +plain your answer and give its legal !asis.(+&&E($E# A'(WE": 2pplicable Laws; contracts contrar" to p%blic polic" (199-)hilippine law governs the capacity of theilipino to !uy

Alma was hired as a domestic helper inHong0ong !y the

the land. n addition to the principle of le reisitae given

Eragon #ervices, Ltd., through its local agent.#he eecuted

a!ove. Article $ of the 'CC specificallyprovides that

a standard employment contract designed !ythe hilippine

hilippine laws relating to legal capacity ofpersons are %verseas (or0ers Administration *%+Afor overseas!inding upon citi1ens of the hilippines nomatter where

ilipino wor0ers. t provided for heremployment for one

they are. year at a salary of #Q$,===.== a month. twas su!mitted to

2pplicable Laws; Capacit" to Contract (199)

and approved !y the %+A. However, whenshe arrived inHong0ong, she was as0ed to sign anothercontract !y5. (hat law governs the capacity of the

3apanese to sell the Eragon #ervices, Ltd. which reduced hersalary to only

land? +plain your answer and give its legal !asis. #Q==.== a month. Having no other choice,Alma signed

(+&&E($E# A'(WE":

the contract !ut when she returned to thehilippines, she3apanese law governs the capacity of the

3apanese to sell thedemanded payment of the salary differentialof #QJ==.== a

land !eing his personal law on the !asis of aninterpretation

month. Noth Eragon #ervices, Ltd. and itslocal agentof Art. $, 'CC.

AL$E"'A$IVE A'(WE"(0

claimed that the second contract is validunder the laws ofHong0ong, and therefore !indingon Alma.

a #ince capacity to contract is governed !ythe personal

s their claim correct?+plain.

law of an individual, the 3apanese sellerDscapacity should !e

(+&&E($E# A'(WE":governed either !y his national law *3apaneselaw or !y the 8heir claim is not correct. A contract is the law

!etween thelaw of his domicile, depending upon whether3apan follows

parties !ut the law can disregard the contractif it is contrary

the nationality or domiciliary theory of personallaw for its

to pu!lic policy. 8he provisions of the $


23/233


that pu!lic policy, the application shall !edisregarded !y

Cort o* A''eals (;.R o. 104$37, ov.

10, 1993) theour Courts. *Cadalin v. %+A. 59F #CIA-5

#upreme Court applied hilippine law inrecovery of

AL$E"'A$IVE A'(WE"(0 damages for !reach of contract of carriagefor the reasona 8heir claim is not correct. Assuming that

the second that it is the law of the place where thecontract wascontract is !inding under Hong0ong law,

such second eecuted.

contract is invalid under hilippine law whichrecogni1es as AL$E"'A$IVE A'(WE":valid only the first contract. #ince the case is!eing litigated

f the violation of the contract was attendedwith !ad faith,

in the hilippines, the hilippine Court as theforum will

there is a ground to recover moral damages.Nut since there

not enforce any foreign claim o!noious to theforumDs

was a federal regulation which was the!asis of the act

pu!licpolicy.

8here is a strong pu!lic policyenshrined in

complained of, the airline cannot !e in !adfaith. Hence,

our Constitution on the protection ofla!or.

8herefore,

only actual damages can !e recovered. 8hesame is true with

the second contract shall !e disregardedand the first regards to eemplary damages.contract will !e enforced. (Ca%al"n v.


24/233

the hilippines has /urisdiction over the casein view of the

%n F Eecem!er $


25/233


"rohi!itive laws concerning persons, theiracts or

&aris then returned to the hilippinesand in a civil

property, and those which have for theiro!/ect pu!lic

ceremony cele!rated in Ce!u Cityaccording to the

order, pu!lic policy and good customs shallnot !e

formalities of hilippine law, she marriedher former

rendered ineffective !y laws or /udgmentspromulgated,

classmate incent li0ewise ailipino citi1en.

or !y determinations or conventions agreed

upon in a

a (as the marriage of &aris and 3ohnson

valid when

foreign country."cele!rated? s their marriage still validlyeisting now?

Accordingly, a stateDs own conflict of lawsrule may,

Ieasons.(+&&E($E# A'(WE":

*a 8he marriage of &ans and 3ohnsonwas valid when

eceptionally !e inapplica!le, givenpu!lic policy

cele!rated !ecause all marriagessolemni1ed outside the

considerations !y the law of the forum.hilippines *8o0yo in accordance with thelaws in force in

Going into the specific provisions of thecontract in

the country where they are solemni1ed*3apan, and valid

there as such, are also valid in thehilippines.7uestion, would rule as follows:$. 8he duration of the contract is not

opposed to 8heir marriage no longer validly su!sists,!ecause it hashilippine law and it can therefore !e

valid as !een dissolved !y the a!solute divorce validlyo!tained !ystipulated)3ohnson which capacitated &aris toremarry *Art. 5.

5. 8he second provision to theeffect that

amilyCode.

notwithstanding duration, 3apan Air Lines *3ALmay

terminate her employment is invalid, !einginconsistent

2pplicable Laws; laws governing marriages ('##)with our La!or laws)Gene and 3ane, ilipino, met and got

married in +ngland9. 8hat the contract shall !e construed as

governed underwhile !oth were ta0ing up post6graduatecourses there. A

and !y the laws of 3apan and only the courts of8o0yo,

few years after their graduation, they decidedto annul their

3apan shall have /urisdiction, is invalid asclearly

marriage. 3ane filed an action to annul hermarriage to

opposed to the aforecited third paragraph ofArts. $-

Gene in +ngland on the ground of latterOssterility, a groundand $-== of the Civil Code, which provides:for annulment of marriage in +ngland. 8he+nglish court

"Art. $-==. 8he relations !etween capital andla!or

decreed the

marriage

annulled.

Ieturning to

the

are not merely contractual. 8hey are soimpressed

hilippines, Gene as0ed you whether or nothe would !ewith pu!lic interest that la!or contracts mustyieldfree to marry his formergirlfriend.

(hat would yourlegal

to the common good. 8herefore, suchcontracts

advice !e?B

are su!/ect to the special laws on la!orunions,

(+&&E($E# A'(WE":collective !argaining, stri0es and loc0outs,closed 'o, Gene is not free to marry his former

girlfriend.Hisshop, wages, wor0ing conditions, hours of

la!or marriage to 3ane is valid according to theforms and

and similar su!/ects." solemnities of Nritish law, is valid here *Article$-, $st par.,

AL$E"'A$IVE A'(WE"0

'CC. However, since Gene and 3ane are

still ilipinos


26/233

although living in +ngland, the dissolution oftheir marriage

A. (hen a contract has a foreign elementsuch as in the

is still governed !y hilippine law *Article $,'CC. #ince,

factual setting stated in the pro!lem whereone of the

sterility is not one of the grounds for theannulment of a

parties is a foreign corporation, thecontract can !e

marriage under Article J of theamily Code, the

sustained as valid particularly the stipulationepressing that

annulment of GeneOs marriage to 3ane on thatground is not

the contract is governed !y the laws of the

foreign country. valid in the hilippines *Article $-,'CC

Given this generally accepted principle ofinternational law,

AL$E"'A$IVE A'(WE":the contract !etween &aritess and 3AL is validand it should >es, Gene is free to marry his girlfriend

!ecause histherefore !e enforced. marriage was validly annulled in

+ngland.8he

issueof

2pplicable Laws; laws governing marriages (199')whether or not a marriage is voida!le,including the groundstherefore, is governed !y the law of theplace where the

n $


27/233


nder Art. $ par. $, 'CC, real property issu!/ect to the

9. 8he distri!ution of the personal propertiesin Germany

law of the country where it is situated. #ince theproperty is

shall !e governed !y rench law. 8he legal!asis is Art. $,

situated in the hilippines, hilippine lawapplies. 8he rule 'CC.of le rei sitae in Article $ prevails over le locicontractu

2pplicable Laws; 8ills e


28/233

and his direction to the cler0 of the districtcourt, or /ustice

&ichelle, the rench daughter of enreich,a German

of the peace to enter /udgment against thede!tor as stated

national, died in #pain leaving realproperties in the

therein. *(ords and hrases, vol. -, pp. $$6$.

hilippines as well as valua!le personalproperties in

Germany.c C%G'%8 is a plea in an action whichac0nowledges

$. (hat law determines who shall succeed thedeceased?

that the defendant did underta0e andpromise as the

+plain your answer and give its legal !asis.plaintiff in its declaration has alleged, andthat it cannot

5. (hat law regulates the distri!ution of thereal properties

deny that it owes and un/ustly detains fromthe plaintiff the

in the hilippines? +plain your answer andgive its legal

sum claimed !y him in his declaration, andconsents that

!asis.

/udgment !e entered against thedefendant for a certain

9.(hat law governs the distri!ution of thepersonal

sum. 2(ords and hrases, vol. -, pp. $$6$.

properties in Germany? +plain your answer

and give its

legal !asis. dC%G'%8 is a note authori1ing alawyer for

(+&&E($E# A'(WE": confession of /udgment !y defendant.Assuming that the estate of the decedent is!eing settled inthe hilippines 5 "N%II%('G #8A88+" 6 Laws of the

state or$. 8he national law of the decedent *renchlaw shall /urisdiction used !y another state in

deciding conflictsgovern in determining who will succeed to hisestate. 8he 7uestioned involved in the choice of law

*Nlac0Ds Lawlegal !asis is Art. $ par. 5, 'CC. Eictionary, th ed. $


29/233


Definition; for%m non?conveniens; long?arm stat%te (199!)

nationality theory, and the issue involved iswhich of the

$ (hat is the doctrine of orum non conveniens?laws of the two countries should apply todetermine the

5 (hat is a "long arm statute"?order of succession, the amount ofsuccessional rights, or,

(+&&E($E# A'(WE":the intrinsic validity of testamentaryprovisions. #uch issue

$ a %I& '%' C%'+'+'# is aprinciple in is not involved in this case.

rivate nternational Law that where the endsof /ustice AL$E"'A$IVE A'(WE":strongly indicate that the controversy may !emore suita!ly

>es. "Ienvoi" 6 which means "referring !ac0"is relevant

tried elsewhere, then /urisdiction should !edeclined and the

!ecause here, we are applying .#. law to&ario, !eing

parties relegated to relief to !e sought inanother forum.

already its citi1en, although the formalitiesof the second

*&oreno. hilippine Law Eictionary, p. 5J, $


30/233

relating to performance or eecution ofthose purposes

he was guaranteed commissions !y !othfirms !ased on a

*Nlac0Ds Law Eictionary, th +d. $


31/233


where the main elements of the contractconverge. As

country of which they are citi1ens. #incetheir marriage is

illustrated !y=ala&ea v. Cort o* A''eals($$8 SCRA $3

valid under Hong Rong law, it shall !e validand respected

[1993]), it is the law of the place where theairline tic0et in the hilippines.

was issued, where the passengers arenationals and

at%rali>ation ('##)

residents of, and where the defendant airlinecompany

maintained its office.&iss niverse, from inland, came to thehilippines on atourist visa. (hile in this country, she fell inlove with and

AL$E"'A$IVE A'(WE": married a ilipino doctor. Her tourist visahaving !een

A.nder the doctrine of le loci

contractus, as a epired and after the maimum etensionallowed therefore,general rule, the law of the place where a

contract is made the Nureau of mmigration andEeportation *NE isor entered into governs with respect to its

nature and presently demanding that she immediatelyleave the countryvalidity, o!ligation and interpretation. 8his has

!een said to !ut she refuses to do so, claiming thatshe is already a!e the rule even though the place where the

contract was ilipino Citi1en !y her marriage to ailipino citi1en. Canmade is different from the place where it

is to !e the NE still order the deportation of &issniverse?performed, and particularly so, if the place of

the ma0ing +plain. Band the place of performance are the same(>n"te% A"rl"ne v. (+&&E($E# A'(WE":CA, ;.R. o. 1$4110, A'r"l$0, $001).

>es, the NE can order the deportation of &issniverse.

(+&&E($E# A'(WE":

8he marriage of an alien woman to ailipino does notautomatically ma0e her ailipino Citi1en.

#he mustfirst

N.

%I& '%' C%'+'+'# means

that a prove in an appropriate proceeding that shedoes not have

court has discretionary authority to decline/urisdiction over

any dis7ualification for hilippineciti1enship.

(?n>an

a cause of action when it is of the view that theaction may

.

!e /ustly and effectively ad/udicated elsewhere.C! v. Re'/l"+ o* t!e !"l"''"nes, 178SCRA 793 [1988])#ince &iss niverse is still a foreigner, despiteher marriage

(+&&E($E# A'(WE":

to a ilipino doctor, she can !e deported uponepiry of herallowa!le stay in thehilippines.C. 'o, the hilippine courts cannot ac7uire/urisdictionA'!$E" (+&&E($E# A'(WE":over the case of elipe. irstly, under the rule of

forum non 'o, the Nureau of mmigration cannotorder her

conveniens, the hilippine court is not aconvenient forum

deportation. An alien woman marrying ailipino, native6

as all the incidents of the case occurredoutside the

!orn or naturali1ed, !ecomes ipso facto ailipino if she ishilippines. 'either are !oth Coals and

+nergy doing not dis7ualified to !e a citi1en of thehilippines (Mo ?a!usiness inside the hilippines. #econdly, the

contracts were 5"& v Co&&"ss"on o* I&&"rat"on, 41 SCRA $9$[191]), (Se+

not perfected in the hilippines. nder theprinciple of le

4, atral"@at"on 5a). All that she has to dois prove in

loci contractus, the law of the place wherethe contract is

the deportation proceeding the fact of hermarriage and that

made shall apply. Lastly, the hilippine courthas no power

she is not dis7ualified to !ecome a ilipino

Citi1en.


32/233


33/233


protection of the rights of ilipino la!orers, thecourt can

natural mother as her middle name. 8heCourt has ruled

disregard choice of forum and choice of law.8herefore the

that there is no law prohi!iting an illegitimatechild adopted

hilippine Court should not apply thestipulation in

!y her natural father to use, as middle name,her motherDs

7uestion.surname. (hat is not prohi!ited is allowed.After all, the

AL$E"'A$IVE A'(WE": use of the maternal name as the middle name

is in accord! 'o, le fori should !e applied !ecause thesuit is filed in with ilipino culture and customs andadoption is intendedhilippine courts and +ric was hired in the

hilippines. 8he for the !enefit of the adopted[In reB A%o't"ono* Ste'!an"ehilippine Constitution affords full protection to

la!or and at!y Astora ;ar+"a, ;.R. o. 148311,Mar+! 31, $007

the stipulation as to summary dismissal runscounter to our

Ra/ya, T!e 5a on ersons an% a&"lyRelat"ons, '. 613].

fundamental and statutory laws.

=orts; 4rescriptive 4erio0 ('##!) nter?Co%ntr" 20option; ,ormalities ('##)

n a class suit for damages, plaintiffs claimedthey suffered

Hans Ner!er, a German national, and hisilipino wife,

in/uries from torture during martial law. 8hesuit was filed Ihoda, are permanent residents of Canada.8hey desire soupon resident +&Os arrival on eile in H, a.#. state.

much to adopt &agno, an F6year oldorphaned !oy and a

8he court in H awarded plaintiffs the e7uivalentof $==

!aptismal godson of Ihoda. #ince theaccidental death of

!illion under the .#. law on alien tort claims.%n appeal,

&agnoDs parents in 5==J, he has !een stayingwith his aunt

+&Os +state raised the issue of prescription. targued that

who, however, could hardly afford to feed herown family.

since said .#. law is silent on the matter, thecourt should

nfortunately, Hans and Ihoda cannotcome to the

apply: *$ HOs law setting a two6yearlimitation on tort

hilippines to adopt &agno although theypossess all the

claims) or *5 the hilippine law which appearsto re7uire 7ualifications as adoptive parents.that claims for personal in/ury arising frommartial law !e

Is t!ere a 'oss"/"l"ty *or t!e& to a%o'tMano o

!rought within one year. s!ol% t!ey o a/ot "t (7)(+&&E($E# A'(WE":

laintiffs countered that provisions of the mostanalogous

>es, it is possi!le for Hans and Ihoda toadopt &agno.Iepu!lic Act 'o. F=J9 or the nter6CountryAdoption Act,federal statute, the 8orture ictims rotection

Act, should allows aliens or ilipinos permanentlyresiding a!road to!e

applied.t sets ten years as the period for

prescription. apply for inter6country adoption of a ilipinochild. 8he law&oreover, they argued that e7uity could toll the

statute of however re7uires that only legally free child,or one who haslimitatio

ns.orit

appeared that +& hadprocured !een voluntarily or involuntarily committed to

the E#(EConstitutional amendments granting himselfand those or any of its accredited agencies, may !e

su!/ect of inter6acting under his direction immunity from suitduring his country adoption. 8he law further re7uires

that aside fromtenure.possessing all the 7ualifications, the adoptiveparents must

n this case, has prescription set in or not?Considering the

come from a country where the hilippineshas diplomaticrelations and that the governmentmaintains a similarlydifferences in the cited laws, which

prescriptive period


34/233

accredited agency and that adoption isallowed under the

should !e applied: one year under hilippinelaw, two years

national law of the alien. &oreover, itmust !e further

under HOs law, ten years under .#. federal law,or none of

shown that all possi!ilities for a domesticadoption have

thea!ove? +plain. *B

!een ehausted and the inter6countryadoption is !est for(+&&E($E# A'(WE":

8he # Court will apply # law, the law of the3orum, in the interest of the child.

determining the applica!le prescriptive period.(hile #

Hans and Ihoda have to file anapplication to adopt

law is silent on this matter, the # Court willnot applyhilippine law in determining the prescriptiveperiod. t is

&agno, either with the Iegional 8rialCourt having

generally affirmed as a principle in privateinternational law

/urisdiction over &agno or with thenter6Country

that procedurallaw

is one of theeceptions to the

Adoption Noard in Canada. Hans andIhoda will then

application of foreign law !y the forum. #inceprescription

undergo a trial custody for si * monthsfrom the time of

is a matter of procedural law even in

hilippine

placement. t is only after the lapse of the trial

custody that/urisprudence, *Codaltn v. %+AS3LICSNroum and the decree of adoption can !e issued.Iootnternational,

59F #CIA -5$ 2$es, an illegitimate child,upon

5 Aside from ta0ing physical custody ofNing, what legal

adoption !y her natural father, can use the

surname of her actions can Carol ta0e to protect Ning?

Page 21 of 119


35/233

CIVIL LAWAnswers to the BAR as Arranged by Topics (Year 1990-2006)(+&&E($E# A'(WE": sister. 8hus, under the a!ove6cited

provision, +va is$ a

t depends on whether or not Ning was atleast $F 7ualified to adopt ic0y.

years old at the time Carol asserts theprerogative to ta0ecustody of Ning. f she was at least $F years old,then she is

/) ol% yor anser /e t!e sa&e "*t!ey so!t tono longer under parental authority and neither

Carol nor a%o't 2vaDs "lle"t"&ate %a!ter2'la"n. ($)'orma can assert the prerogative to ta0e

custody. However, (+&&E($E# A'(WE":if she was less than $F years old, then 'ormahas a !etter

&y answer will still !e the same. aragraph9*a of Article

right since the adoption !y 'orma of Ningterminates the

$FJ of the amily Code does not ma0e anydistinction. 8he

parental authority of Carol over Ning.provision states that an alien who is aformer ilipino

! 8he natural mother, Carol, should have the!etter right in

citi1en is 7ualified to adopt a relative !yconsanguinity.

light of the principle that the childDswelfare is the

+) S''os"n t!at t!ey *"le% t!e'et"t"on to a%o't

paramount consideration in custody rights.%!viously,

#"+Ey "n t!e year $000, "ll yor anser/e t!e sa&e

NingDs continued stay in her adopting parentsDhouse, where 2'la"n. ($)interaction with the call girls is inevita!le,would !e

(+&&E($E# A'(WE":

>es, my answer will still !e the same. nder#ec. -*!, Art.detrimental to her moral and spiritual

development. 8his of the 'ew Eomestic Adoption Act, analien whocould !e the reason for NingDs epressed desire

to return to possesses all the 7ualifications of a ilipinonational who isher natural mother. t should !e noted,

however, that Ning 7ualified to adopt may already adoptprovided that hisis no longer a minor, !eing $< years of age

now. t is country has diplomatic relations with thehilippines, thatdou!tfu$ that a court can still resolve the

7uestion ofhe has !een living in the hilippines for atleast three *9custody over one who is sui /uris and not

otherwise continuous years prior to the filing of theapplication forincapacitated.adoption and maintains such residence untilthe adoption(+&&E($E# A'(WE":

5a

%n the assumption that Ning is still aminor or

decree is entered, that he has !eencertified !y his

otherwise incapacitated, Carol may petition theproper court

diplomatic or consular office or anyappropriate

for resolution or rescission of the decree ofadoption on the

government agency that he has the legalcapacity to adopt in

ground that the adopting parents haveeposed, or are

his country, and that his government allowsthe adoptee to

eposing, the child to corrupt influence,tantamount to enter his country as his adopted child.giving her corrupting orders or eamples. #hecan also as0

6%alification of 20opter; 2pplicable Law ('##1)for the revesting in her of parental authorityover Ning. fHowever, Ning is already $< years of age andtherefore no

A German couple filed a petition for adoptionof a minor

longer a minor, it is not Carol !ut Ningherself who can

ilipino child with the Iegional 8rial Court of&a0ati under

petition the court for /udicial rescission of theadoption,

the provisions of the Child and >outh (elfareCode which

provided she can show a ground for

disinheritance of an

allowed aliens to adopt. Nefore the petition

could !e heard,


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ascendant.the amily Code, which repealed the Childand >outh

! Carol may file an action to deprive 'ormaof parental

(elfare Code, came into effect. Conse7uently,the #olicitorGeneral filed a motion to dismiss thepetition, on the

authority under Article 59$ of the amily Codeor file an

ground that the amily Code prohi!its aliensfrom adopting.

action for the rescission of the adoption underArticle $


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#ometime in $ can inherit from N&, 3r. 8he succession tothe estate of

spouse of the adopteeOs parent) N&, 3r. is governed !y hilippine law!ecause he was a

Any Alien possessing the same 7ualifications asa!ove6stated

ilipino when he died *Article $, CivilCode. nderArticle $=9< of the Civil Code, the capacity ofthe heir tofor ilipino nationals: rovided,succeed is governed !y the national law of thedecedent anda

8hat his country has diplomatic relationswith the

not !y the national law of the heir. Hence,whether or notIepu!lic of the hilippines,

!

that he has !een living in the hilippines

for at least

> can inherit from N&, 3r. is determined !y

hilippinethree *9 continuous years prior to thefiling of the

law. nder hilippine law, the adoptedinherits from thepetition for adoption and maintains such

residence until adopter as a legitimate child ofthe adopter.

the adoption decree is entered,

cthat he has !een certified !y his diplomatic orconsular >, however, cannot inherit, in

his ownright

,from theoffice or any appropriate government agency

to have the father of the adopter, N&, #r., !ecause he isnot a legal heirlegal capacity to adopt in his country,of N&, #r. 8he legal fiction of adoption eistsonly !etweend

and that his government allows the adopteeto enter his

the adopted and the adopter. (Teot"+o v. Fel#al 13 SCRAcountry as his adopted child.

406 [1967]). 'either may he inherit from


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rovided, further, 8hat the re7uirements onresidency and

representing N&, 3r. !ecause inrepresentation, the

certification of the alienOs 7ualification to adopt inhis country

representative must !e a legal heir not only ofthe person he

may !e waived for the following: is representing !ut also of the decedentfrom whom the

aa former ilipino citi1en who see0s to adopta relative represented was supposed to inherit

*Article


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(+&&E($E# A'(WE":

$ 'o, the &otion to Eismiss should not!e granted. Article 59 of the amily Code asamended !y Iepu!lic Act F=


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,amil"; Constit%tional *an0ates; Divorce (1991)A. How does the $es. Congress is !arred from enactinga law allowing divorce, since #ection 5 ofArticle 4 provides: "#ec. 5. &arriage, asan inviola!le social institution, is thefoundation of the family and shall !eprotected !y the #tate." #ince marriage is"nviola!le", it cannot !e dissolved !y ana!solute divorce.

*arriage; 2nn%lment; Effects; e$%isites

efore emarriage (199#)

8he marriage of H and ( was annulled !y thecompetent court. pon finality of the

/udgment of nullity. H !egan loo0ing forhis prospective second mate. He fell inlove with a sey woman # who wanted to !emarried as soon as possi!le, i.e., after a fewmonths of courtship. As a young lawyer, youwere consulted !y H,*a How soon can H !e /oined in lawfulwedloc0 to his girlfriend #? nder eistinglaws, are there certain re7uisites that must!e complied with !efore he can remarry?(hat advice would you give H?

*! #uppose that children were !orn from theunion of H and (, what would !e the statusof said children? +plain your answer.*c f the su!se7uent marriage of H to# was contracted !efore compliance withthe statutory condition for its validity, whatare the rights of the children of the firstmarriage *i.e., of H and ( and of thechildren of thesu!se7uent marriage *of H and #?(+&&E($E# A'(WE":

*a H, or either spouse for that matter, canmarry again after complying with theprovisions of Article 5 of the amily Code,namely, there must !e a partition anddistri!ution, of the properties of the spouses,and the delivery of the

age 24 of$$


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childrenDs presumptive legitimes which should!e recorded

seually6transmissi!le disease, found to !eserious and

in the appropriate civil registry and registries ofproperty. H

appears incura!le. 8wo *5 years after theirmarriage, which

should !e so advised.too0 place on $= %cto!er $


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had a steady /o! !ecause he was drun0most of the time.

annulment of the marriage *under Art. J ofthe amily

inally, he could not get employed at all!ecause of

Code has !ecome final and eecutory *Art.J, amily

drun0enness. Hence, it was &aria who had toearn a living

CodeM. to support herself and her child !egotten withLuis. n $


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drug addict. +fforts to have himreha!ilitated were

n $


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amily Code, and no longer the parents!ecause G is

already 55 years of age.*c 8he marriage of &aris and incent isvoid a! initio

*arriage; 2nn%lment; 4roper 4art" (199)

!ecause it is a !igamous marriagecontracted !y &arisduring the su!sistence of her marriage withedro *Art 5>vette was found to !e positive for H virus,

considered and J$, amily Code.seually transmissi!le, serious and incura!le.

Her !oyfriend

8he marriage of &aris and incent does not

validly eist3oseph was aware of her condition and yetmarried her.

!ecause Article 5 does not apply. edrowas not a

After two *5 years of coha!iting with >vette,and in his

foreigner at the time of his marriage withmarts and the

!elief that she would pro!a!ly never !e a!le to!ear him a

divorce a!road *in &aryland was initiated ando!tained not

healthy child, 3oseph now wants to have hismarriage with

!y the alien spouse, !ut !y the ilipinospouse. Hence, the

>vette annulled. >vette opposes the suitcontending that

&aryland divorce did not capacitate &artsto marry

3oseph is estopped from see0ing annulmentof their incent.marriage since he 0new even !efore their

marriage that shewas afflicted with H virus. *d At this point in time, edro is still the

lawful hus!and ofCan the action of 3oseph for annulment of hismarriage with &aris !ecause their valid marriage has not

!een dissolved !y>vette prosper? Eiscuss fully. any valid cause *Art. 5. amily Code(+&&E($E# A'(WE":

'o, 3oseph 0new that >vette was H positive atthe time *arriage; Divorce Decrees; ,iliation of Cil0ren ('##)of the marriage. He is, therefore, not an in/uredparty. 8he

n $


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a) F"s+ss t!e e**e+t o* t!e %"vor+eo/ta"ne% /y Sonny

lor and irgillo were married to each other inIoas City

an% 5l "n Cana%a. ($)in $


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a!sent for four consecutive years !eforethe second

whether such divorce did capacitate lor toremarry, that

marriage and the present spouse had a well6founded !elief

fact may as well !e assumed since thepro!lem states that

that the a!sent spouse is already dead.*Iepu!lic v. 'olasco,

she married a Canadian shortly aftero!taining the divorce.

G.I. 'o.


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CIVIL LAWAnswers to the BAR as Arranged by Topics (Year 1990-2006)AL$E"'A$IVE A'(WE": the marriage, the conclusion is that

EignaDs father may+va may file an action for legal separation onthe grounds revo0e the donation and get !ac0 the car.of seual infidelity of her hus!and and thecontracting !y

her hus!and of a !igamous marriage a!road. *arriage; Bro%n0s; Declaration of %llit" 2nn%lment#he may remarry. (hile a strict interpretation ofArticle 5

Legal eparation eparation of 4ropert" ('##)(hich of the following remedies, i.e., *adeclaration ofof the amily Code would capacitate a ilipino

spouse tonullity of marriage, *! annulment ofmarriage, *c legalremarry only when the other spouse was a

foreigner at the separation, andSor *d separation ofproperty, can antime of the marriage, the E%3 has issued

an opinion aggrieved spouse avail himselfSherself of6*%pinion $9J s. of $


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contract, the hus!and may file theaction for legal

annulment of the marriage is the psychologicalimmaturity

separation under Art. *$= of the amilyCode on the

of George, the /udgment was in the nature of adeclaration

ground of a!andonment of petitioner !yrespondent

of nullity under Art. 9 of the C and,therefore, the

without /ustifia!le cause for more than oneyear. 8he wife is

donation may !e revo0ed under Art. F* $ ofthe C for

deemed to have a!andoned the hus!andwhen she leaves

the reason that the marriage has !een

/udicially declared the con/ugal dwelling without any intentionof returningvoid a! initio.*Article $=$, C. 8he intention not to returncannot !eAL$E"'A$IVE A'(WE":presumed during the 9=year period of hercontract.

! 'o, the donation cannot !e revo0ed. 8helaw providesthat a donation !y reason of marriage may !erevo0ed !y

*iiif the hus!and discovers after the

marriage that histhe donor if among other cases, the marriageis /udicially wife was a prostitute !efore they got

married, he has nodeclared void a! initio 2par. *$ Art. F.amily Code;, or remedy. 'o misrepresentation or deceit as

to character,when the marriage is annulled and the doneeacted in !ad health, ran0, fortune or chastity shall

constitute fraud asfaith 2par. *9, d.;. #ince the pro!lemstates that the legal ground for an action for the annulment

of marriagemarriage was annulled and there is nointimation of !ad

*Article J C.faith on the part of the donee Eigna, theconclusion is thatthe donor cannot revo0e the donation.

*iv8he wife may file an action for legal

separation.AL$E"'A$IVE A'(WE":c >es, the donation can !e revo0ed. 8heground used in

8he hus!andOs seual infidelity is aground for legal

dissolving the marriage was the psychologicalimmaturity of separation


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separation of propert" for failure of the hus!and tocomply

#audi Ara!ia to wor0. 8here, after !eingconverted into

with his marital duty of mutual respect *Article$9 *J,

slam, Ariel married &ystica, Iosa learned ofthe second

Article $=$, C. #he may also file an action for0eclaration

marriage of Ariel on 3anuary $, $


50/233

the occurrence of the cause. wife against the life of the hus!and is one ofthe grounds9 Erug addiction arises during the

marriage and not enumerated !y the amily Code for legalseparation andat the time of

marriage. there is no need for criminal conviction for theground to

*arriage; Legal eparation; Declaration of %llit" ('##')!e invo0ed *Art. , par.


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the court shall uphold the validity and sanctityof marriage

the preceding Article, only the propertiesac7uired !y !oth

(Gron v. ?a&/ao, ;.R. o. 510699,es. 8he marriage will not fall under Art.9*J of the U f it was ac7uired after &aryDs death,

there willamily Code on !igamous marriages, providedthat #helley !e no share at all for the estate of

&ary.o!tained an a!solute divorce, capacitating herto remarryunder her national law. Conse7uently, themarriage !etween *arriage; 4s"cological ncapacit" (199-)&arvin and &anel may !e valid as long as it wassolemni1ed

%n April $, $


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conducted and &arina neither appearednor presentedinitio he further claims that his marriage to

#hirley is valid evidence in her favor.and !inding as he was already legallycapacitated at the time

f you were the /udge, will you grant theannulment.

he married her. +plain.a s the contention of 3ames correct? (+&&E($E# A'(WE":! (hat property Ielations governed theunion of 3ames

As /udge, will not grant the annulment. 8hefacts do not

and %phelia? show any taint of personality disorder on

the part of thec s the estate of &ary entitled to ashare in the wife &arina so as to lend su!stance to

her hus!andDsresidential lot ac7uired !y 3ames and%phelia? averment of psychological incapacity within

the meaning of(+&&E($E# A'(WE": Art 9 of the amily Code. n Santos vs. CA

($40 SCRA $0),A. >es. His marriage to %phelia is void a! initio!ecause of this particular ground for nullity of marriage

was held to !ehis su!sisting prior marriage to &ary. Hismarriage to limited only to the most serious cases

of personality#hirley, after &aryDs death, is valid and!inding. disorders *clearly demonstrative of utter

sensitivity or

AL$E"'A$IVE A'(WE": 3ames is not correct.ina!ility to give meaning and significance tothe marriage.A. 'o. 8he

contention of&arinaDs refusal to come home to herhus!and unless heArt. J=, amily Code, provides that the "a!solute

nullity of a agreed not to wor0 overseas, far from !eingindicative of anprevious marriage may !e invo0ed for

purposes of insensitivity to the meaning of marriage, or ofa personalityremarriage on the !asis solely of a final

/udgment declaring disorder, actually shows a sensitiveawareness on her part ofsuch previous marriage void." t can !e said,

therefore, that the marital duty to live together as hus!andand wife. &erethe marriage of 3ames to #hirley is void since his

previous refusal to re/oin her hus!and when he didnot accept themarriage to %phelia, although itself void, had

not yet !een

condition imposed !y her does not furnish

any !asis for/udicially declaredvoid,

concluding that she was suffering frompsychological

AL$E"'A$IVE A'(WE":incapacity to discharge the essential maritalo!ligations.A.

'o. 8he contention of 3ames is notcorrect. He

cannot set up as a defense his owncriminal act or

&ere intention to live apart does not fall underArt. 9, C.

wrongdoing6urthermore, there is no proof thatthe alleged

(+&&E($E# A'(WE":

psychological incapacity eisted at the time ofthe marriage.

N. 8he provisions of Art $JF of the amilyCode, shall

govern: Art. $JF. n cases of coha!itation notfalling under

Page 30 of 119


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(C!" M"nTso"

(Santos v. CA, ;.R. o.11$019, -an.


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*arriage; 4s"cological ncapacit" ('##-)Gemma filed a petition for the declaration ofnullity of her marriage with Arnell on theground of psychological incapacity. #healleged that after 5 months of their marriage,Arnell showed signs of disinterest in her,neglected her and went a!road. He returnedto the hilippines after 9 years !ut did noteven get in touch with her. (orse, theymet several times in social functions !ut hesnu!!ed her. (hen she got sic0, he did notvisit her even if he 0new of herconfinement in the hospital. &eanwhile,Arnell met an accident which disa!led himfrom reporting for wor0 and earning a livingto support himself.(ill GemmaDs suit prosper? +plain. *B(+&&E($E# A'(WE":

'o, GemmaDs suit will not prosper. +ven ifta0en as true, the grounds, singly orcollectively, do not constitute "psychologicalincapacity." n Santos v. CA, ;.R. o. 11$019,-anary 4, 1997, the #upreme Court clearly

eplained that "psychological incapacitymust !e characteri1ed !y *a gravity, *!/uridical antecedence, and *c incura!ility"(errar"s v. errar"s, ;.R. o. 16$368, -ly 1,$006 C!oa v. C!oa, ;.R. o. 14336,

ove&/er $6, $00$). 8he illness must !eshown as downright incapacity or ina!ility toperform oneDs marital o!ligations, not amere refusal, neglect, difficulty or much less,ill will. &oreover, as ruled inRe'/l"+ v. Mol"na, ;R o. 10863, e/rary

13, 199, it is essential that the hus!and iscapa!le of meeting his marital

responsi!ilities due to psychological and notphysical illness(Anton"o v. Reyes, ;.R. o. 177800, Mar+!10, $006 Re'/l"+ v. H"nteroa&ano,

;.R. o. 149498, May $0, $004).urthermore, the condition complained of didnot eist at the time of the cele!ration ofmarriage.

*arriage; 4s"cological ncapacit" ('##-)

Article 9 of the amily Code providesthat a marriage contracted !y any partywho, at the time of the cele!ration, waspsychologically incapacitated to complywith the essential marital o!ligations ofmarriage, shall !e void.Choo

ANSWERS TO BAR EXAMINATION QUESTIONS IN CIVIL LAW (2006)

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Transcript of ANSWERS TO BAR EXAMINATION QUESTIONS IN CIVIL LAW (2006)