bar exams-2013 questions

8/13/2019 bar exams-2013 questions

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POLITICAL LAW

ESSAY QUESTIONS I.In the last quarter of 2012, about 5,000 container vans of imported goods intended for the Christmas Season wereseized by agents of the Bureau of Customs. The imported goods were released only on January 10,2013. A group ofimporters got together and filed an action for damages before the Regional Trial Court of Manila against the

Department of Finance and the Bureau of Customs.The Bureau of Customs raised the defense of immunity from suit and, alternatively, that liability should lie with XYZCorp. which the Bureau had contracted for the lease of ten (10) high powered van cranes but delivered only five(5) of these cranes, thus causing the delay in its cargo-handling operations. It appears that the Bureau, despitedemand, did not pay XYZ Corp. the Php 1.0 Million deposit and advance rental required under their contract.

(A) Will the action by the group of importers prosper? (5%)(B) Can XYZ Corp. sue the Bureau of Customs to collect rentals for the delivered cranes? (5'%)

II.While Congress was in session, the President appointed eight acting Secretaries. A group of Senators from theminority bloc questioned the validity of the appointments in a petition before the Supreme Court on the groundthat while Congress is in session, no appointment that requires confirmation by the Commission on Appointments,can be made without the latter's consent, and that an undersecretary should instead be designated as ActingSecretary.Should the petition be granted? (5%)III.A robbery with homicide had taken place and Lito, Badong and Rolliewere invited for questioning based on theinformation furnished by a neighbor that he saw them come out of the victim's house at about the time of therobbery/killing. The police confronted the three with this and other information they had gathered, and pointedlyaccused them of committing the crime.Lito initially resisted, but eventually broke down and admitted his participation in the crime. Elated by this breakand desirous of securing a written confession soonest, the police called City Attorney Juan Buan to serve as thetrio's counsel and to advise them about their rights during the investigation.Badong and Rollie, weakened in spirit by Lito's early admission, likewise admitted their participation. The trio thussigned a joint extra-judicial confession which served as the main evidence against them at their trial. They wereconvicted based on their confession.

Should the judgment of conviction be affirmed or reversed on appeal? (5%)IV.Congress enacted a law providing for trial by jury for those charged with crimes or offenses punishable by reclusionperpetua or life imprisonment. The law provides for the qualifications of members of the jury, the guidelines forthe bar and bench for their selection, the manner a trial by jury shall operate, and the procedures to be followed.Is the law constitutional? (6%)V.As a leading member of the Lapiang Mandirigma in the House of Representatives, you were tasked by the party toinitiate the moves to impeach the President because he entered into an executive agreement with the USAmbassador for the use of the former Subic Naval Base by the US Navy, for free, i.e., without need to pay rent norany kind of fees as a show of goodwill to the U.S. because of the continuing harmonious RP-US relations.Cite at least two (2) grounds for impeachment and explain why you chose them. (6%)VI.Congress passed Republic Act No. 7711 to comply with the United Nations Convention on the Law of the Sea.In a petition filed with the Supreme Court, Anak Ti Ilocos, an association of Ilocano professionals, argued thatRepublic Act No. 7711discarded the definition of the Philippine territory under the Treaty of Paris and in relatedtreaties; excluded the Kalayaan Islands and the Scarborough Shoals from the Philippine Archipelagic baselines; andconverted internal waters into archipelagic waters.Is the petition meritorious? (6%)VII.As he was entering a bar, Arnold -who was holding an unlit cigarette in his right hand -was handed a match box bysomeone standing near the doorway. Arnold unthinkingly opened the matchbox to light his cigarette and as he did


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so, a sprinkle of dried leaves fell out, which the guard noticed. The guard immediately frisked Arnold, grabbed thematchbox, and sniffed its contents. After confirming that the matchbox contained marijuana, he immediatelyarrested Arnold and called in the police.At the police station, the guard narrated to the police that he personally caught Arnold in possession of driedmarijuana leaves. Arnold did not contest the guard's statement; he steadfastly remained silent and refused to giveany written statement. Later in court, the guard testified and narrated the statements he gave the police over

Arnold's counsel's objections. While Arnold presented his own witnesses to prove that his possession andapprehension had been set-up, he himself did not testify.The court convicted Arnold, relying largely on his admission of the charge by silence at the police investigation andduring trial.From the constitutional law perspective, was the court correct in its ruling? (6%)VIII.Bobby, an incoming third year college student, was denied admission by his university, a premiere educationalinstitution in Manila, after he failed in three (3) major subjects in his sophomore year. The denial of admission wasbased on the university's rules and admission policies.Unable to cope with the depression that his non-admission triggered, Bobby committed suicide. His family suedthe school for damages, citing the school's grossly unreasonable rules that resulted in the denial of admission.They argued that these rules violated Bobby's human rights and the priority consideration that the Constitutiongives to the education of the youth.You are counsel for the university. Explain your arguments in support of the university's case. (6%)IX.Conrad is widely known in the neighborhood as a drug addict. He is also suspected of being a member of thenotorious "Akyat-Condo Gang" that has previously broken into and looted condominium units in the area.Retired Army Colonel Sangre who is known as an anti-terrorism fighter who disdained human and constitutionalrights and has been nicknamed "terror of Mindanao" is now the Head of Security of Capricorn Land Corporation,the owner and developer of Sagittarius Estates where a series of robberies has recently taken place.On March l, 2013, Conrad informed his mother, Vannie, that uniformed security guards had invited him for a talk intheir office but he refused to come. Later that day, however, Conrad appeared to have relented; he was seenwalking into the security office flanked by two security guards. Nobody saw him leave the office afterwards.Conrad did not go home that night and was never seen again. The following week and after a week-long search,Vannie feared the worst because of Col. Sangre's reputation. She thus reported Conrad's disappearance to the

police. When nothing concrete resulted from the police investigation, Vannie at the advice of counsel - f1led apetition for a writ of amparo to compel Col. Sangre and the Sagittarius Security Office to produce Conrad and tohold them liable and responsible for Conrad's disappearance.

(A) Did Vannie's counsel give the correct legal advice? (6%)(B) If the petition would prosper, can Col. Sangre be held liable and/or responsible for Conrad'sdisappearance? (6%)

X.The Ambassador of the Republic of Kafiristan referred to you for handling, the case of the Embassy's MaintenanceAgreement with CBM, a private domestic company engaged in maintenance work. The Agreement binds CBM, fora defined fee, to maintain the Embassy's elevators, air-conditioning units and electrical facilities. Section 10 of theAgreement provides that the Agreement shall be governed by Philippine laws and that any legal action shall bebrought before the proper court of Makati. Kafiristan terminated the Agreement because CBM allegedly did notcomply with their agreed maintenance standards.CBM contested the tennination and filed a complaint againstKafiristan before the Regional Trial Court of Makati.The Ambassador wants you to file a motion to dismiss on the ground of state immunity from suit and to opposethe position that under Section 10 of the Agreement, Kafiristan expressly waives its immunity from suit.Under these facts, can the Embassy successfully invoke immunity from suit? (6%)XI.In her interview before the Judicial and Bar Council (JBC),Commissioner Annie Amorsolo of the National LaborRelations Commission claims that she should be given credit for judicial service because as NLRC Commissioner,she has the rank of a Justice of the Court of Appeals; she adjudicates cases that are appealable to the Court of


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Appeals; she is assigned car plate No. 10; and she is, by law, entitled to the rank, benefits and privileges of a Courtof Appeals Justice.If you are a member of the JBC, would you give credit to this explanation? (6%)XII.In the May 2013 elections, the Allied Workers' Group of the Philippines (AWGP), representing land-based and sea-based workers in the Philippines and overseas, won in the party list congressional elections. Atty. Abling, a labor

lawyer, is its nominee.As part of the party's advocacy and services, Congressman Abling engages in labor counseling, particularly for localworkers with claims against their employers and for those who need representation in collective bargainingnegotiations with employers. When labor cases arise, AWGP enters its appearance in representation of theworkers and the Congressman makes it a point to be there to accompany the workers, although a retained counselalso formally enters his appearance and is invariably there. Congressman Abling largely takes a passive role in theproceedings although he occasionally speaks to supplement the retained counsel's statements. It is otherwise inCBA negotiations where he actively participates.Management lawyers, feeling that a congressman should not actively participate in cases before labor tribunalsand before employers because of the influence a congressman can wield, filed a disbarment case against theCongressman before the Supreme Court for his violation of the Code of Professional Responsibility and for breachof trust, in relation particularly with the prohibitions on legislators under the Constitution.Is the cited ground for disbarment meritorious? (6%)MULTIPLE CHOICE QUESTIONS I. The equal protection clause is violated by __________. (1%)

(A) a law prohibiting motorcycles from plying on limited access highways.(B) a law granting Value Added Tax exemption to electric cooperatives that sells electricity to the"homeless poor."(C) a law providing that a policeman shall be preventively suspended until the termination of a criminalcase against him.(D) a law providing higher salaries to teachers in public schools who are "foreign hires."(E) a law that grants rights to local Filipino workers but denies the same rights to overseas Filipinoworkers.

II. Offended by the President's remarks that the Bureau of Customs is a pit of misfits and the corrupt, the Bureau ofCustoms Employees Association composed of 3,000 workers seeks your legal advice on how best to protest what it

views to be the President's baseless remarks.A prudent legal advice is that __________. (1%)

(A) employees can go on mass leave of absence for one week(B) employees can march and rally at Mendiola every Monday(C) employees can barricade the gates of the Port of Manila at South Harbor and call for the resignation ofthe incumbent Commissioner of Customs(D) employees can wear black arm bands and pins with the word "UNFAIR" inscribed(E) None of the above can legally be done.

III. Congress enacted Republic Act No. 1234 requiring all candidates for public offices to post an election bondequivalent to the one (1) year salary for the position for which they are candidates. The bond shall be forfeited ifthe candidates fail to obtain at least 10% of the votes cast.Is Republic Act No. 1234 valid? (1%)

(A) It is valid as the bond is a means of ensuring fair, honest, peaceful and orderly elections.(B) It is valid as the bond requirement ensures that only candidates with sufficient means and who cannotbe corrupted, can runfor public office.(C) It is invalid as the requirement effectively imposes a property qualification to run for public office.(D) It is invalid as the amount of the surety bond is excessive and unconscionable.(E) It is valid because it is a reasonable requirement; the Constitution itself expressly supports theaccountability of public officers.

IV. What is the legal effect of decisions of the International Court of Justice in cases submitted to it for resolution?(1%)

(A) The decision is binding on other countries in similar situations.


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(B) The decision is not binding on any country, even the countries that are parties to the case.(C) The decision is binding only on the parties but only with respect to that particular case.(D) The decision is not binding on the parties and is only advisory.(E) The binding effect on the parties depends on their submission agreement.

V. Under the UN Convention on the Law of the Sea, the exclusive economic zone refers to an area. (1%)(A) that is at least 100 miles from the baselines from which the outer limit of the territorial sea is

measured(B) that is at least 200 miles but not to exceed 300 miles from the baselines from which the outer limit ofthe territorial sea is measured(C) beyond and adjacent to a country's territorial sea which cannot go beyond 200 nautical miles from thebaselines from which the outer limit of the territorial sea is measured(D) that can go beyond 3 nautical miles but cannot extend 300 nautical miles from the baselines fromwhich the outer limit of the territorial sea is measured(E) None of the above.

VI. A child born under either the 1973 or the 1987 Constitution, whose father or mother is a Filipino citizen at thetime of his birth, is __________. (1%)

(A) not a Filipino citizen as his father and mother must both be Filipino citizens at the time of his birth(B) not a Filipino citizen if his mother is a Filipino citizen but his father is not, at the time of his birth(C) a Filipino citizen no matter where he or she may be born(D) a Filipino citizen provided the child is born in the Philippines(E) a Filipino citizen if he or she so elects upon reaching the age of 21

VII. Who has control of the expenditure of public funds? (1%)(A) The Office of the President through the Department of Budget and Management.(B) The House of Representatives from where all appropriation bills emanate.(C) The Senate through its Committee on Finance.(D) The Congress of the Republic of the Philippines.(E) Both the members of Congress and the President acting jointly, if so provided by the GeneralAppropriations Act.

VIII. May the power of cities to raise revenues be limited by an executive order of the President? (1%)(A) Yes, because local government units are under the administrative control of the President through theDepartment of Interior and Local Government.

(B) No, because local government units now enjoy full local fiscal autonomy.(C) No, because only limitations established by Congress can define and limit the powers of localgovernments.(D) Yes, because the President has the power and authority to impose reasonable restrictions on thepower of cities to raise revenues.(E) Yes, if so provided in a city's charter.

IX. The provision under the Constitution -that any member who took no part, dissented, or inhibited from adecision or resolution must state the reason for his dissent or non-participation - applies __________. (1%)

(A) only to the Supreme Court(B) to both the Supreme Court and the Court of Appeals(C) to the Supreme Court, Court of Appeals and the Sandiganbayan(D) to the Supreme Court, the Court of Appeals, the Sandiganbayan and the Court of Tax Appeals(E) to all collegial judicial and quasi-judicial adjudicatory bodies

X. Choose the least accurate statement about the independence guaranteed by the 1987 Constitution to thefollowing constitutional bodies: (1%)

(A) The Constitution guarantees the COMELEC decisional and institutional independence similar to thatgranted to theJudiciary.(B) All bodies labeled as "independent" by the Constitution enjoyfiscal autonomy as an attribute of theirindependence.(C) Not all bodies labeled as "independent" by the Constitution were intended to be independent fromthe Executive branch of government.


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(D) The Constitution guarantees various degrees of independence from the other branches of governmentwhen it labels bodies as "independent".(E) The COMELEC, the COA, and the CSC enjoy the same degree of independence.

XI. At the Senate impeachment trial of Justice Pablo P. San Quintin, Hon. Emilio A. Tan, Congressman andImpeachment Panel Manager, wrote the Supreme Court requesting that the prosecutors be allowed to examinethecourt records of Stewards Association of the Philippines, Inc. (SAP!) v. Filipinas Air, et al., G.R. No. 987654, a

case that is still pending. The High Court __________. (1%)(A) may grant the request by reason of inter-departmental courtesy(B) may grant the request as the records of the Filipinas Air case are public records(C) should deny the request since records of cases that are pending for decision are privileged except onlyfor pleadings, orders and resolutions that are available to the public(D) should deny the request because it violates the Court's independence and the doctrine of separationof powers(E) should grant the request because of the sui generis nature of the power of impeachment, providedthat the Bill of Rights is not violated

XII. Mr. Sinco sued the government for damages. After trial, the court ruled in his favor and awarded damagesamounting to P50 million against the government. To satisfy the judgment against the government, which validoption is available to Mr. Sinco? ( 1%)

(A) Garnish the government funds deposited at the Land Bank.(B) File a claim with the Commission on Audit (COA) pursuant to Commonwealth Act 327, as amended byPresidential Decree1445.(C) Make representations with the Congress to appropriate the amount to satisfy the judgment.(D) File a petition for mandamus in court to compel Congress to appropriate P50 million to satisfy the judgment.(E) Proceed to execute the judgment as provided by the Rules of Court because the State allowed itself tobe sued.

XIII. Which of the following provisions of the Constitution does not confer rights that can be enforced in the courtsbut only provides guidelines for legislative or executive action? (l%)

(A) The maintenance of peace and order, the protection of life, liberty, and property, and promotion ofthe general welfare are essential for the enjoyment by all the people of the blessings of democracy.(B) The State shall give priority to education, science and technology, arts, culture, and sports to foster

patriotism and nationalism, accelerate social progress, and promote total human liberation anddevelopment.(C) The natural and primary right and duty of parents in the rearing of the youth for civic efficiency andthe development of moral character shall receive the support of the Government.(D) The right of the people to information on matters. of public concern shall be recognized. Access toofficial records, and to documents and papers pertaining to official acts, transactions, or decisions, as wellas to government research data used as basis for policy development, shall be afforded the citizen,subject to such limitations as may be provided by law.(E) All the above only provide guidelines and are not self-executing.

XIV. The President entered into an executive agreement with Vietnam for the supply to the Philippines of animalfeeds not to exceed 40,000 tons in any one year. The Association of Animal Feed Sellers of the Philippinesquestioned the executive agreement for being contrary to R.A. 462 which prohibits the importation of animalfeeds from Asian countries. Is the challenge correct? (1%)

(A) Yes, the executive agreement is contrary to an existing domestic law.(B) No, the President is solely in charge of foreign relations and all his actions in this role form part of thelaw of the land.(C) No, international agreements are sui generis and stand independently of our domestic laws.(D) Yes, the executive agreement is actually a treaty which does not take effect without ratification by theSenate.(E) Yes, the challenge is correct because there is no law empowering the President to undertake theimportation.

XV. The separation of Church and State is most clearly violated when __________. (1%)


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(A) the State funds a road project whose effect is to make a church more accessible to its adherents(B) the State declares the birthplace of a founder of a religious sect as a national historical site(C) the State expropriates church property in order to construct an expressway that, among others,provides easy access to the Church's main cathedral(D) the State gives vehicles to bishops to assist them in church-related charitable projects(E) the State allows prayers in schools for minor children without securing the prior consent of their

parentsXVI. Patricio was elected member of the House of Representative in the May 2010 Elections. His opponent Josequestioned Patricio's victory before the House of Representatives Electoral Tribunal and later with the SupremeCourt.In a decision promulgated in November 2011, the Court ruled in Jose's favor; thus, Patricio was ousted from hisseat in Congress. Within a year from that decision, the President can appoint Patricio __________. (1%)

(A) only as a member of the board of directors of any government owned and controlled corporation(B) only as a deputy Ombudsman(C) only as a Commissioner of the Civil Service Commission(D) only as Chairman of the Commission on Elections(E) to any position as no prohibition applies to Patricio

XVII. Senator GSC proposed a bill increasing excise taxes on tobacco and alcohol products. The generatedincremental revenues shall be used for the universal health care program for all Filipinos and for tobacco farmers'livelihood. After the Senate passed the bill on third reading, it was transmitted to the House of Representativeswhich approved the bill in toto. The President eventually signed it into law. Atty. JFC filed a petition before theSupreme Court, questioning the constitutionality of the new law.Is the law constitutional? (1%)

(A) The law is constitutional because it is for a public purpose and has duly satisfied the three-readings-on-separate-days rule in both Houses.(B) The law is unconstitutional because it violates the equal protection clause of the Constitution; it islimited only to alcohol and liquor products.(C) It is constitutional because of the Enrolled Bill Theory.(D) It is constitutional because it is valid in form and substance and complied with the required lawmakingprocedures.(E) None of the above is correct.

XVIII. Which of the following statements is correct? (1%)

(A) The President, with the concurrence of the Monetary Board, can guarantee a foreign loan on behalf ofthe Republic of the Philippines.(B) Congress may, by law, provide limitations on the President's power to contract or guarantee foreignloans on behalf of the Republic of the Philippines.(C) In order to be valid and effective, treaties and executive agreements must be concurred in by at leasttwo-thirds of all the Members of the Senate.(D) The President shall, at the end of every quarter of the calendar year, submit to Congress a completereport of the loans contracted or guaranteed by the Government or government-owned and controlledcorporations.(E) All the above choices are defective in some respects.

XIX. Candida has been administratively charged of immorality for openly living with Manuel, a married man.Candida argues that her conjugal arrangement with Manuel fully conforms with their religious beliefs and with theteachings of their church.In resolving whether Candida should be administratively penalized, which is the best test to apply? (1%)

(A) Clear and Present Danger Test(B) Compelling State Interest Test(C) Balancing of interests Test(D) Conscientious Objector Test(E) Dangerous Tendency Test

XX. Rafael questioned the qualifications of Carlos as congressman of the Third District of Manila on the ground thatCarlos is a citizen of the USA. The decision disqualifying Carlos for being a US citizen came only in March 2010, i.e.,after the adjournment of the session of Congress on the 3'd year of the position's three-year term.


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What was Carlos' status during his incumbency as congressman? (1%)(A) He was a de jure officer, having been duly elected and proclaimed.(B) He was not a public officer because he effectively was not entitled to be a congressman.(C) He was a de jure officer since he completed the service of his term before he was disqualified.(D) He was a de facto officer since he had served and was only disqualified later.(E) He neither possesses de jure nor de facto status as such determination is pointless.

LABOR LAW

ESSAY QUESTIONS I.Jose and Erica, former sweethearts, both worked as sales representatives for Magna, a multinational firm engagedin the manufacture and sale of pharmaceutical products. Although the couple had already broken off theirrelationship, Jose continued to have special feelings for Erica.One afternoon, Jose chanced upon Erica riding in the car of Paolo, a co -employee and Erica's ardent suitor; the twowere on their way back to the office from a sales call on Silver Drug, a major drug retailer. In a fit of extreme jealousy, Jose rammed Paolo's car, causing severe injuries to Paolo and Erica. Jose's flare up also caused heavydamage to the two company-owned cars they were driving.

(A) As lawyer for Magna, advise the company on whether just and valid grounds exist to dismiss Jose. (4%)(B) Assuming this time that Magna dismissed Jose from employment for cause and you are the lawyer ofJose, how would you argue the position that Jose's dismissal was illegal? (4%)

II.Gamma Company pays its regular employees P350.00 a day, and houses them in a dormitory inside its factorycompound in Manila. Gamma Company also provides them with three full meals a day.In the course of a routine inspection, a Department of Labor and Employment (DOLE) Inspector noted that theworkers' pay is below the prescribed minimum wage of P426.00 plus P30.00 allowance, and thus required GammaCompany to pay wage differentials.Gamma Company denies any liability, explaining that after the market value of the company-provided board andlodging are added to the employees' P350 cash daily wage, the employees' effective daily rate would be way abovethe minimum pay required by law. The company counsel further points out that the employees are aware thattheir food and lodging form part of their salary, and have long accepted the arrangement.Is the company's position legally correct?(8%)

III.Inter-Garments Co. manufactures garments for export and requires its employees to render overtime work rangingfrom two to three hours a day to meet its clients' deadlines. Since 2009, it has been paying its employees onovertime an additional 35% of their hourly rate for work rendered in excess of their regular eight working hours.Due to the slowdown of its export business in 2012, Inter-Garments had to reduce its overtime work; at the sametime, it adjusted the overtime rates so that those who worked overtime were only paid an additional 25%insteadof the previous 35%. To replace the workers' overtime rate loss, the company granted a one-time 5% across-the-board wage increase.Vigilant Union, the rank-and-file bargaining agent, charged the company with Unfair Labor Practice on the groundthat (1) no consultations had been made on who would render overtime work; and (2) the unilateral overtime payrate reduction is a violation of Article 100 (entitled Prohibition Against Elimination or Diminution of Benefits) of theLabor Code.Is the union position meritorious? (8%)IV.Bobby, who was assigned as company branch accountant in Tarlac where his family also lives, was dismissed byTheta Company after anomalies in the company's accounts were discovered in the branch Bobby filed a complaintand was ordered reinstated with full backwages after the Labor Arbiter found that he had been denied due processbecause no investigation actually took place.Theta Company appealed to the National Labor Relations Commission (NLRC) and at the same time wrote Bobby,advising him to report to the main company office in Makati where he would be reinstated pending appeal Bobbyrefused to comply with his new assignment because Makati is very far from Tarlac and he cannot bring his familyto live with him due to the higher cost of living in Makati.


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(A) Is Bobby's reinstatement pending appeal legally correct? (4%)(B) Advise Bobby on the best course of action to take under the circumstances. (4%)

V.Cris filed a complaint for illegal dismissal against Baker Company. The Labor Arbiter dismissed the complaint butawarded Cris financial assistance. Only the company appealed from the Labor Arbiter's ruling. It confined its appealsolely to the question of whether financial assistance could be awarded. The NLRC, instead of ruling solely on the

appealed issue, fully reversed the Labor Arbiter's decision; it found Baker Company liable for illegal dismissal andordered the payment of separation pay and full backwages.Through a petition for certiorari under Rule 65 of the Rules of Court, Baker Company challenged the validity of theNLRC ruling. It argued that the NLRC acted with grave abuse of discretion when it ruled on the illegal dismissalissue, when the only issue brought on appeal was the legal propriety of the financial assistance award.Cris countered that under Article 218(c) of the Labor Code, the NLRC has the authority to "correct, amend, orwaive any error, defect or irregularity whether in substance or in form" in the exercise of its appellate jurisdiction.Decide the case. (8%)VI.Because of the stress in caring for her four (4) growing children, Tammy suffered a miscarriage late in herpregnancy and had to undergo an operation. In the course of the operation, her obstetrician further discovered asuspicious-looking mass that required the subsequent removal of her uterus (hysterectomy). After surgery, herphysician advised Tammy to be on full bed rest for six (6) weeks. Meanwhile, the biopsy of the sample tissue takenfrom the mass in Tammy's uterus showed a beginning malignancy that required an immediate series ofchemotherapy once a week for four (4) weeks.

(A) What benefits can Tammy claim under existing social legislation? (4%)(B) What can Roger-Tammy's 2nd husband and the father of her two (2) younger children -claim asbenefits under the circumstances? (4%)

VII.Philippine Electric Company is engaged in electric power generation and distribution. It is a unionized companywith Kilusang Makatao as the union representing its rank-and-file employees. During the negotiations for theirexpired collective bargaining agreement (CBA), the parties duly served their proposals and counter-proposals onone another. The parties, however, failed to discuss the merits of their proposals and counter-proposals in anyformal negotiation meeting because their talks already bogged down on the negotiation ground rules, i.e., on thequestion of how they would conduct their negotiations, particularly on whether to consider retirement as a

negotiable issue.Because of the continued impasse, the union went on strike. The Secretary of Labor and Employment immediatelyassumed jurisdiction over the dispute to avert widespread electric power interruption in the country. Afterextensive discussions and the filing of position papers (before the National Conciliation and Mediation Board andbefore the Secretary himself) on the validity of the union's strike and on the wage and other economic issues(including the retirement issue), the DOLE Secretary ruled on the validity of the strike and on the disputed CBAissues, and ordered the parties to execute a CBA based on his rulings.Did the Secretary of Labor exceed his jurisdiction when he proceeded to rule on the parties' CBA positions eventhough the parties did not fully negotiate on their own? (8%)VIII.After thirty (30) years of service, Beta Company compulsorily retired Albert at age 65 pursuant to the company'sRetirement Plan. Albert was duly paid his full retirement benefits of one (1) month pay for every year of serviceunder the Plan. Thereafter, out of compassion, the company allowed Albert to continue working and paid him hisold monthly salary rate, but without the allowances that he used to enjoy.After five (5) years under this arrangement, the company finally severed all employment relations with Albert; hewas declared fully retired in a fitting ceremony but the company did not give him any further retirement benefits.Albert thought this treatment unfair as he had rendered full service at his usual hours in the past five (5) years.Thus, he filed a complaint for the allowances that were not paid to him, and for retirement benefits for hisadditional five (5) working years, based either on the company's Retirement Plan or the Retirement Pay Law,whichever is applicable.

(A) After Albert's retirement at age 65, should he be considered a regular employee entitled to all hisprevious salaries and benefits when the company allowed him to continue working? (4%)


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(B) Is he entitled to additional retirement benefits for the additional service he rendered after age 65?(4%)

IX.Pablo works as a driver at the National Tire Company (NTC). He is a member of the Malayang Samahan ngManggagawa sa NTC, the exclusive rank-and-file collective bargaining representative in the company. The unionhas a CBA with NTC which contains a union security and a check-off clause. The union security clause contains a

maintenance of membership provision that requires all members of the bargaining unit to maintain theirmembership in good standing with the union during the term of the CBA under pain of dismissal. The check-offclause on the other hand authorizes the company to deduct from union members' salaries defined amounts ofunion dues and other fees. Pablo refused to issue an authorization to the company for the check-off of his dues,maintaining that he will personally remit his dues to the union.

(A) Would the NTC management commit unfair labor practice if it desists from checking off Pablo's uniondues for lack of individual authorization from Pablo? (4%)(B) Can the union charge Pablo with disloyalty for refusing to allow the check off of his union dues and, onthis basis, ask the company to dismiss him from employment? (4%)

X.For ten (10) separate but consecutive yearly contracts, Cesar has been deployed as an able-bodied seaman byMeritt Shipping, through its local agent, Ace Maritime Services (agency), in accordance with the 2000PhilippineOverseas Employment Administration Standard Employment Contract (2000 POEA-SEC). Cesar's employment wasalso covered by a CBA between the union, AMOSl.JP, and Meritt Shipping. Both the 2000 POEA-SEC and the CBAcommonly provide the same mode and procedures for claiming disability benefits. Cesar's last contract (for ninemonths) expired on July 15, 2013.Cesar disembarked from the vessel M/V Seven Seas on July 16, 2013as a seaman on "finished contract". Heimmediately reported to the agency and complained that he had been experiencing spells of dizziness, nausea,general weakness, and difficulty in breathing. The agency referred him to Dr. Sales, a cardio-pulmonary specialist,who examined and treated him; advised him to take a complete rest for a while; gave him medications; anddeclared him fit to resume work as a seaman.After a month, Cesar went back to the agency to ask for re-deployment. The agency rejected his application. Cesarresponded by demanding total disability benefits based on the ailments that he developed and suffered while onboard Meritt Shipping vessels. The claim was based on the certification of his physician (internist Dr. Reyes) that hecould no longer undertake sea duties because of the hypertension and diabetes that afflicted him while serving on

Meritt Shipping vessels in the last 10 years. Rejected once again, Cesar filed a complaint for illegal dismissal andthe payment of total permanent disability benefits against the agency and its principal.Assume that you are the Labor Arbiter deciding the case. Identify the facts and issues you would consider materialin resolving the illegal dismissal and disability complaint. Explain your choices and their materiality, and resolve thecase. (8%)MULTIPLE CHOICE QUESTIONS I. The parties to a labor dispute can validly submit to voluntary arbitration _________. (1%)

(A) any disputed issue they may agree to voluntarily arbitrate(B) only matters that do not fall within the exclusive jurisdiction of the Labor Arbiter(C) any disputed issue but only after conciliation at the National Conciliation and Mediation Board fails(D) any disputed issue provided that the Labor Arbiter has not assumed jurisdiction over the case oncompulsory arbitration(E) only matters relating to the interpretation or implementation of a collective bargaining agreement

II. When there is no recognized collective bargaining agent, can a legitimate labor organization validly declare astrike against the employer? (1%)

(A) Yes, because the right to strike is guaranteed by the Constitution and cannot be denied to any groupof employees.(B) No, because only an exclusive bargaining agent may declare a strike against the employer.(C) Yes, because the right to strike is a basic human right that the country's international agreements andthe International Labor Organization recognize.(D) Yes, but only in case of unfair labor practice.


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(E) No, in the absence of a recognized bargaining agent, the workers' recourse is to file a case before theDepartment of Labor and Employment.

III.Mr. Del Carmen, unsure if his foray into business (messengerial service catering purely to law firms) would succeedbut intending to go long-term if he hurdles the first year, opted to open his operations with one-year contractswith two law firms although he also accepts messengerial service requests from other firms as their orders come.

He started with one permanent secretary and six (6) messengers on a one-year, fixed-term, contract.Is the arrangement legal from the perspective of labor standards? (1%)

(A) No, because the arrangement will circumvent worker's right to security of tenure.(B) No. If allowed, the arrangement will serve as starting point in weakening the security of tenureguarantee.(C) Yes, if the messengers are hired through a contractor.(D) Yes, because the business is temporary and the contracted undertaking is specific and time-bound.(E) No, because the fixed term provided is invalid.

IV. Chito was illegally dismissed by DEF Corp. effective at the close of business hours of December 29, 2009.IV(1). He can file a complaint for illegal dismissal without any legal bar within _________. (1%)

(A) three (3) years(B) four (4) years(C) five (5) years(D) six (6) years(E) ten (10) years

IV(2). If he has money claims against DEF Corp., he can make the claim without any legal bar within _________. (1%)

(A) three (3) years(B) four (4) years(C) five (5) years(D) six (6) years(E) ten (10) years

V. After vainly struggling to stay financially afloat for a year, LMN Corp. finally gave up and closed down itsoperations after its major creditors filed a petition for LMN's insolvency and liquidation.In this situation, LMN's employees are entitled to _________ as separation pay. (1%)

(A) one-half month pay for every year of service(B) one month pay for every year of service(C) one-half month pay(D) one month pay(E) no separation pay at all

VI. At age 65 and after 20 years of sewing work at home on a piece rate basis for PQR Garments, a manufacturer-exporter to Hongkong, Aling Nena decided it was time to retire and to just take it easy.Is she entitled to retirement pay from PQR? (1%)

(A) Yes, but only to one month pay.(B) No, because she was not a regular employee.(C) Yes, at the same rate as regular employees.(D) No, because retirement pay is deemed included in her contracted per piece pay.(E) No, because homeworkers are not entitled to retirement pay.

VII. The minimum wage prescribed by law for persons with disability is __________. (1%)(A) 50% of the applicable minimum wage(B) 75% of the applicable minimum wage(C) 100% of the applicable minimum wage(D) the wage that the parties agree upon, depending on the capability of the disabled.(E) the wage that the parties agree upon, depending on the capability of the disabled, but not less than50% of the applicable minimum wage

VIII. What is the financial incentive, if any, granted by law to SPQ Garments whose cutters and sewers in itsgarments-for-export operations are80% staffed by deaf and deaf-mute workers? (1%)


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(A) Additional deduction from its gross income equivalent to 25% of amount paid as salaries to personswith disability.(B) Additional deduction from its gross income equivalent to 50% of the direct costs of the construction offacilities for the use of persons with disability.(C) Additional deduction from its net taxable income equivalent to 5% of its total payroll(D) Exemption from real property tax for one (1) year of the property where facilities for persons with

disability have been constructed.(E) The annual deduction under (A), plus a one-time deduction under (B).

IX. Mr. Ortanez has been in the building construction business for several years. He asks you, as his new laborcounsel, for the rules he must observe in considering regular employment in the construction industry.You clarify that an employee, project or non-project, will acquire regular status if __________. (1%)

(A) he has been continuously employed for more than one year(B) his contract of employment has been repeatedly renewed, from project to project, for several years(C) he performs work necessary and desirable to the business, without a fixed period and withoutreference to any specific project or undertaking(D) he has lived up to the company's regularization standards(E) All of the above.

X. Samahang Tunay, a union of rank-and-file employees lost in a certification election at Solam Company and hasbecome a minority union. The majority union now has a signed CBA with the company and the agreement containsa maintenance of membership clause.What can Samahang Tunay still do within the company as a union considering that it still has members whocontinue to profess continued loyalty to it? (1%)

(A) It can still represent these members in grievance committee meetings.(B) It can collect agency fees from its members within the bargaining unit.(C) It can still demand meetings with the company on company time.(D) As a legitimate labor organization, it can continue to represent its members on non-CBA-relatedmatters.(E) None of the above.(F) All of the above.

XI. The members of the administrative staff of Zeta, a construction company, enjoy ten (10) days of vacation leavewith pay and ten (10) days of sick leave with pay, annually. The workers' union, Bukluran, demands that Zeta grant

its workers service incentive leave of five (5) days in compliance with the Labor Code.Is the union demand meritorious? (1%)

(A) Yes, because non-compliance with the law will result in the diminution of employee benefits.(B) Yes, because service incentive leave is a benefit expresslyprovided under and required by the LaborCode.(C) No, because Zeta already complies with the law.(D) No, because service incentive leave is a Labor Code benefit that does not apply in the constructionindustry.(E) Yes, because Labor Code benefits are separate from those voluntarily granted by the company.

XII. Upon the expiration of the first three (3) years of their CBA, the union and the company commencednegotiations. The union demanded that the company continue to honor their 30-day union leave benefit under theCBA. The company refused on the ground that the CBA had already expired, and the union had already consumedtheir union leave under the CBA.Who is correct? (1%)

(A) The company is correct because the CBA has expired; hence it is no longer bound to provide unionleave.(B) The company is correct because the union has already consumed the allotted union leave under theexpired CBA.(C) The union is correct because it is still the bargaining representative for the next two (2) years.(D) The union is correct because union leaves are part of the economic terms that continue to govern untilnew terms are agreed upon.(E) They are both wrong.


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XIII. Hector, a topnotch Human Resource Specialist who had worked in multinational firms both in the Philippinesand overseas, was recruited by ABC Corp., because of his impressive credentials. In the course of Hector'semployment, the company management frequently did not follow his recommendations and he felt offended bythis constant rebuff.Thus, he toyed with the idea of resigning and of asking for the same separation pay that ABC earlier granted to two(2) department heads when they left the company.

To obtain a legal opinion regarding his options, Hector sent an email to ABC's retained counsel, requesting foradvice on whether the grant by the company of separation pay to his resigned colleagues has already ripened intoa company practice, and whether he can similarly avail of this benefit if he resigns from his job.As the company's retained legal counsel, how will you respond to Hector? (1%)

(A) I would advise him to write management directly and inquire about the benefits he can expect if heresigns.(B) I would advise him that the previous grant of separation pay to his colleagues cannot be considered acompany practice because several other employees had resigned and were not given separation pay.(C) I would advise him to ask for separation pay, not on account of company practice, but on the basis ofdiscrimination as he is similarly situated as the two resigned department heads who were paid theirseparation pay.(D) I would not give him any legal advice because he is not my client.(E) I would maintain that his question involves a policy matter beyond the competence of a legal counselto give.

XIV. Aleta Quiros was a faculty member at BM Institute, a private educational institution. She was hired on a year-to-year basis under the probationary employment period provision of the Manual of Regulations for PrivateSchools. The terms and conditions of her engagement were defined under her renewable yearly contract.For reasons of its own, BM Institute no longer wanted to continue with Aleta's teaching services. Thus, after thecontract for her second year expired, BM Institute advised Aleta that her contract would no longer be renewed.This advice prompted Aleta to file a complaint for illegal dismissal against BM Institute.Will the complaint prosper? (1%)

(A) Yes, because no just or authorized cause existed for the termination of her probationary employment.(B) Yes, because under the Labor Code, Aleta became a regular employee after 6 months and she maynow only be dismissed for cause.(C) No, because there was no dismissal to speak of. Her employment was automatically terminated upon

the expiration of her year-to-year fixed term employment.(D) No, because BM Institute may dismiss its faculty members at will in the exercise of its academicfreedom.(E) No, because Aleta was still on probationary employment.

XV. Robert, an employee of ABC Company, is married to Wanda. One day, Wanda visited the company office withher three (3) emaciated minor children, and narrated to the Manager that Robert had been squandering hisearnings on his mistress, leaving only a paltry sum for the support of their children. Wanda tearfully pleaded withthe Manager to let her have one half of Robert's pay every payday to ensure that her children would at least havefood on the table. To support her plea, Wanda presented a Kasulatan signed by Robert giving her one half of hissalary, on the condition that she would not complain if he stayed with his mistress on weekends.If you were the Manager, would you release one half of Robert's salary to Wanda? (1%)

(A) No, because an employer is prohibited from interfering with the freedom of its employees to disposeof heir wages.(B) Yes, because of Robert's signed authorization to give Wanda one half of his salary.(C) No, because there is no written authorization for ABC Company to release Robert's salary to Wanda.(D) Yes, because it is Robert's duty to financially support his minor children.(E) No, because Robert's Kasulatan is based on an illegal consideration and is of doubtful legal validity.

XVI. Ricardo operated a successful Makati seafood restaurant patronized by a large clientele base for its superbcuisine and impeccable service. Ricardo charged its clients a 10% service charge and distributed 85% of thecollection equally among its rank-and-file employees, 10% among managerial employees, and 5% as reserve forlosses and break ages. Because of the huge volume of sales, the employees received sizeable shares in thecollected service charges.


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As part of his business development efforts, Ricardo opened a branch in Cebu where he maintained the samepractice in the collection and distribution of service charges. The Cebu branch, however, did not attract theforecasted clientele; hence, the Cebu employees received lesser service charge benefits than those enjoyed by theMakati-based employees. As a result, the Cebu branch employees demanded equalization of benefits and filed acase with the NLRC for discrimination when Ricardo refused their demand.XVI(l) Will the case prosper? (1%)

(A) Yes, because the employees are not receiving equal treatment in the distribution of service chargebenefits.(B) Yes, because the law provides that the 85% employees' share in the service charge collection shouldbe equally divided among all the employees, in this case, among the Cebu and Makati employees alike.(C) No, because the employees in Makati are not similarly situated as the Cebu employees with respect tocost of living and conditions of work.(D) No, because the service charge benefit attaches to the outlet where service charges are earned andshould be distributed exclusively among the employees providing service in the outlet.(E) No, because the market and the clientele the two branches are serving, are different.

XVI(2). In order to improve the Cebu service and sales, Ricardo decided to assign some of its Makati-basedemployees to Cebu to train Cebu employees and expose them to the Makati standard of service. A chef and threewaiters were assigned to Cebu for the task. While in Cebu, the assigned personnel shared in the Cebu servicecharge collection and thus received service charge benefits lesser than what they were receiving in Makati.If you were the lawyer for the assigned personnel, what would you advice them to do? (1%)

(A) I would advise them to file a complaint for unlawful diminution of service charge benefits and forpayment of differentials.(B) I would advise them to file a complaint for illegal transfer because work in Cebu is highly prejudicial tothem in terms of convenience and service charge benefits.(C) I would advise them to file a complaint for discrimination in the grant of service charge benefits.(D) I would advise them to accept their Cebu training assignment as an exercise of the company'smanagement prerogative.(E) I would advise them to demand the continuation of their Makati-based benefits and to file a complaintunder (B)above if the demand is not heeded.

XVII. Constant Builders, an independent contractor, was charged with illegal dismissal and non-payment of wagesand benefits of ten dismissed employees. The complainants impleaded as co-respondent Able Company, Constant

Builder's principal in the construction of Able's office building. The complaint demanded that Constant and Able beheld solidarily liable for the payment of their backwages, separation pay, and all their unpaid wages and benefits.If the Labor Arbiter rules in favor of the complainants, choose the statement that best describes the extent of theliabilities of Constant and Able. (1%)

(A) Constant and Able should be held solidarily liable for the unpaid wages and benefits, as well asbackwages and separation pay, based on Article 109 of the Labor Code which provides that "everyemployer or indirect employer shall be held responsible with his contractor or subcontractor for anyviolation of any provision of this Code."(B) Constant and Able should be held solidarily liable for the unpaid wages and benefits, and should orderConstant, as the workers' direct employer, to be solely liable for the backwages and separation pay.(C) Constant and Able should be held solidarily liable for the unpaid wages and benefits and thebackwages since these pertain to labor standard benefits for which the employer and contractor are liableunder the law, while Constant alone as the actual employer - should be ordered to pay the separationpay.(D) Constant and Able should be held solidarily liable for the unpaid wages and benefits, and Constantshould be held liable for their backwages and separation pay unless Able is shown to have participatedwith malice or bad faith in the workers' dismissal, in which case both should be held solidarily liable.(E) The above statements are all inaccurate.

XVIII. The Pinagbuklod union filed a Petition for Certification Election, alleging that it was a legitimate labororganization of the rank-and-file employees of Delta Company. On Delta's motion, the Med Arbiter dismissed thePetition, based on the finding that Pinagbuklod was not a legitimate labor union and had no legal personality to file


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a Petition for Certification Election because its membership was a mixture of rank-and-file and supervisoryemployees.Is the dismissal of the Petition for Certification Election by the Med-Arbiter proper? (1%)

(A) Yes, because Article 245 of the Labor Code prohibits supervisory employees from joining the union ofhe rank and file employees and provides that a union representing both rank and file and supervisoryemployees as members is not a legitimate labor organization.

(B) No, because the grounds for the dismissal of a petition for certification election do not include mixedmembership in one umon.(C) No, because a final order of cancellation of union registration is required before a petition forcertification election may be dismissed on the ground of lack of legal personality of the umon.(D) No, because Delta Company did not have the legal personality to participate in the certificationelection proceedings and to file a motion to dismiss based on the legitimacy status of the petitioningunion.

CIVIL LAW

ESSAY QUESTIONS I.You are a Family Court judge and before you is a Petition for the Declaration of Nullity of Marriage (under Article36 of the Family Code)filed by Maria against Neil. Maria claims that Neil is psychologically incapacitated to complywith the essential obligations of marriage because Neil is a drunkard, a womanizer, a gambler, and a mama's boy-traits that she never knew or saw when Neil was courting her. Although summoned, Neil did not answer Maria'spetition and never appeared in court.To support her petition, Maria presented three witnesses- herself, Dr. Elsie Chan, and Ambrosia. Dr. Chan testifiedon the psychological report on Neil that she prepared. Since Neil never acknowledged n9r responded to herinvitation for interviews, her report is solely based on her interviews with Maria and the spouses' minor children.Dr. Chan concluded that Neil is suffering from Narcissistic Personality Disorder, an ailment that she found to bealready present since Neil's early adulthood and one that is grave and incurable. Maria testified on the specificinstances when she found Neil drunk, with another woman, or squandering the family's resources in a casino.Ambrosia, the spouses' current household help, corroborated Maria's testimony.On the basis of the evidence presented, will you grant the petition? (8%)II.

A collision occurred at an intersection involving a bicycle and a taxicab. Both the bicycle rider (a businessman thendoing his morning exercise) and the taxi driver claimed that the other was at fault. Based on the police report, thebicycle crossed the intersection first but the taxicab, crossing at a fast clip from the bicycle's left, could not brake intime and hit the bicycle's rear wheel, toppling it and throwing the bicycle rider into the sidewalk 5 meters away.The bicycle rider suffered a fractured right knee, sustained when he fell on his r ight side on the concrete side walk.He was hospitalized and was subsequently operated on, rendering him immobile for 3 weeks and requiringphysical rehabilitation for another 3 months. In his complaint for damages, the rider prayed for the awardofP1,000,000 actual damages,P200,000 moral damages, P200,000 exemplary damages, P1 00,000 nominaldamages and P50,000 attorney's fees.Assuming the police report to be correct and as the lawyer for the bicycle rider, what evidence (documentary andtestimonial) and legal arguments will you present in court to justify the damages that your client claims? (8%)III.Sergio is the registered owner of a 500-square meter land. His friend, Marcelo, who has long been interested in theproperty, succeeded in persuading Sergio to sell it to him. On June 2, 2012, they agreed on the purchase priceof P600,000 and that Sergio would give Marcelo up to June30, 2012 within which to raise the amount. Marcelo, ina light tone usual between them, said that they should seal their agreement through a case of Jack Daniels Blackand P5,000 "pulutan" money which he immediately handed to Sergio and which the latter accepted. The friendsthen sat down and drank the first bottle from the case of bourbon.On June 15, 2013, Sergio learned of another buyer, Roberto, who was offering P800,000 in ready cash for the land.When Roberto confirmed that he could pay in cash as soon as Sergio could get the documentation ready, Sergiodecided to withdraw his offer to Marcelo, hoping to just explain matters to his friend. Marcelo, however, objectedwhen the withdrawal was communicated to him, taking the position that they have a firm and binding agreement


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that Sergio cannot simply walk away from because he has an option to buy that is duly supported by a dulyaccepted valuable consideration.

(A) Does Marcelo have a cause of action against Sergio? (5%)(B) Can Sergio claim that whatever they might have agreed upon cannot be enforced because anyagreement relating to the sale of real property must be supported by evidence in writing and they neverreduced their agreement to writing? (3%)

IV.Anselmo is the registered owner of a land and a house that his friend Boboy occupied for a nominal rental and onthe condition that Boboy would vacate the property on demand. With Anselmo's knowledge, Boboy introducedrenovations consisting of an additional bedroom, a covered veranda, and a concrete block fence, at his ownexpense.Subsequently, Anselmo needed the property as his residence and thus asked Boboy to vacate and turn it over tohim. Boboy, despite an extension, failed to vacate the property, forcing Anselmo to send him a written demand tovacate.In his own written reply, Boboy signified that he was ready to leave but Anselmo must first reimburse him thevalue of the improvements he introduced on the property as he is a builder in good faith. Anselmo refused,insisting that Boboy cannot ask for reimbursement as he is a mere lessee. Boboy responded by removing theimprovements and leaving the building in its original state.

(A) Resolve Boboy's claim that as a builder in good faith, he should be reimbursed the value of theimprovements he introduced. (4%)(B) Can Boboy be held liable for damages for removing the improvements over Anselmo's objection? (4%)

V.Josefa executed a deed of donation covering a one-hectare rice land in favor of her daughter, Jennifer. The deedspecifically provides that:

"For and in consideration of he love and service Jennifer has shown and given to me, I hereby freely,voluntarily and irrevocably donate to her my one-hectare rice land covered by TCT No. 11550, located inSan Fernando, Pampanga. This donation shall take effect upon my death."

The deed also contained Jennifer's signed acceptance, and an attached notarized declaration by Josefa andJennifer that the land will remain in Josefa's possession and cannot be alienated, encumbered, sold or disposed ofwhile Josefa is still alive.Advise Jennifer on whether the deed is a donation inter vivos or mortis causa and explain the reasons supporting

your advice. (8%)VI.Lito obtained a loan of P1,000,000 from Ferdie, payable within one year. To secure payment, Lito executed achattel mortgage on a Toyota Avanza and a real estate mortgage on a 200-square meter piece of property.

(A) Would it be legally significant - from the point of view of validity and enforceability - if the loan andthe mortgages were in public or private instruments? (6%)(B) Lito's failure to pay led to the extra-judicial foreclosure of the mortgaged real property. Within a yearfrom foreclosure, Lito tendered a manager's check to Ferdie to redeem the property. Ferdie refused toaccept payment on the ground that he wanted payment in cash: the check does not qualify as legal tenderand does not include the interest payment. Is Ferdie's refusal justified? (4%)

VII.In 2005, Andres built a residential house on a lot whose only access to the national highway was a pathwaycrossing Brando's property. Andres and others have been using this pathway (pathway A) since 1980.In 2006, Brand0 fenced off his property, thereby blocking Andres' access to the national highway. Andresdemanded that part of the fence be removed to maintain his old access route to the highway (pathway A), butBrando refused, claiming that there was another available pathway (pathway B) for ingress and egress to thehighway. Andres countered that pathway B has defects, is circuitous, and is extremely inconvenient to use.To settle their dispute, Andres and Brando hired Damian, a geodetic and civil engineer, to survey and examine thetwo pathways and the surrounding areas, and to determine the shortest and the least prejudicial way through theservient estates. After the survey, the engineer concluded that pathway B is the longer route and will needimprovements and repairs, but will not significantly affect the use of Brando's property. On the other hand,


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I. (2) How much is Dante's share in the net estate? (1%)(A) P150,000.(B) P200,000.(C) P300,000.(D) P400,000.(E) None of the above.

I. (3) How much is Ernie's share in the net estate . (1%)(A) P 0.(B) P400,000.(C) P150,000.(D) P200,000.(E) None of the above.

I. (4) How much is Felix's share in the net estate? (1%)(A) P400,000.(B) P150,000.(C) P300,000.(D) P0.(E) None of the above.

II. A, B, C and D are the solidary debtors of X for P40,000. X released D from the payment of his share of PI 0,000.When the obligation became due and demandable, C turned out to be insolvent.Should the share of insolvent debtor C be divided only between the two other remaining debtors, A and B? (1%)

(A) Yes. Remission of D's share carries with it total extinguishment of his obligation to the benefit of thesolidary debtors.(B) Yes. The Civil Code recognizes remission as a mode of extinguishing an obligation. This clearly appliesto D.(C) No. The rule is that gratuitous acts should be restrictively construed, allowing only the leasttransmission of rights.(D) No, as the release of the share of one debtor would then increase the burden of the other debtorswithout their consent.

III. Amador obtained a loan of P300,000 from Basilio payable on March25, 2012. As security for the payment of hisloan, Amador constituted a mortgage on his residential house and lot in Basilio's favor. Cacho, a good friend of

Amador, guaranteed and obligated himself to pay Basilio, in case Amador fails to pay his loan at maturity.III. (1) If Amador fails to pay Basilio his loan on March 25, 2012, can Basilio compel Cacho to pay? (1%)

(A) No, Basilio cannot compel Cacho to pay because as guarantor, Cacho can invoke the principleof excussion, i.e., all the assets of Basilio must first be exhausted.(B) No, Basilio cannot compel Cacho to pay because Basilio has not exhausted the availableremedies against Amador.(C) Yes, Basilio can compel Cacho to pay because the nature of Cacho's undertaking indicates thathe has bound himself solidarily with Amador.(D) Yes, Basilio can compel Cacho who bound himself to unconditionally pay in case Amador failsto pay; thus the benefit of excussion will not apply.

III. (2) If Amador sells his residential house and lot to Diego, can Basilio foreclose the real estatemortgage? (1%)

(A) Yes, Basilio can foreclose the real estate mortgage because real estate mortgage creates areal right that attaches to the property.(B) Yes, Basilio can foreclose the real estate mortgage. It is binding upon Diego as the mortgage isembodied in a public instrument.(C) No, Basilio cannot foreclose the real estate mortgage. The sale confers ownership on thebuyer, Diego, who must therefore consent.(D) No, Basilio cannot foreclose the real estate mortgage. To deprive the new owner ofownership and possession is unjustand inequitable.


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IV. Cruz lent Jose his car until Jose finished his Bar exams. Soon after Cruz delivered the car, Jose brought it toMitsubishi Cubao for maintenance check up and incurred costs of P8,000. Seeing the car's peeling and faded paint,Jose also had the car repainted for P10,000. Answer the two questions below based on these common facts.

IV. (1) After the bar exams, Cruz asked for the return of his car. Jose said he would return it as soon asCruz has reimbursed him for the car maintenance and repainting costs of P 18,000.Is Jose's refusal justified? (1%)

(A) No, Jose's refusal is not justified. In this kind of contract, Jose is obliged to pay for all theexpenses incurred for the preservation of the thing loaned.(B) Yes, Jose's refusal is justified. He is obliged to pay forall the ordinary and extraordinaryexpenses, but subject to reimbursement from Cruz.(C) Yes, Jose's refusal is justified. The principle of unjust enrichment warrants the reimbursementof Jose's expenses.(D) No, Jose's refusal is not justified. The expenses he incurred are useful for the preservation ofthe thing loaned. It is Jose's obligation to shoulder these useful expenses.

IV. (2) During the bar exam month, Jose lent the car to his girlfriend, Jolie, who parked the car at the Mallof Asia's open parking lot, with the ignition key inside the car. Car thieves broke into and took the car.Is Jose liable to Cruz for the loss of the car due to Jolie's negligence? (1%)

(A) No, Jose is not liable to Cruz as the loss was not due to his fault or negligence.(B) No, Jose is not liable to Cruz. In the absence of any prohibition, Jose could lend the car toJolie. Since the loss was due to force majeure, neither Jose nor Jolie is liable.(C) Yes, Jose is liable to Cruz. Since Jose lent the car to Jolie without Cruz's consent, Jose mustbear the consequent loss of the car.(D) Yes, Jose is liable to Cruz. The contract between them is personal in nature. Jose can neitherlend nor lease the car to a third person.

V. In 2005, L, M, N, 0 and P formed a partnership. L, M and N were capitalist partners who contributed P500,000each, while 0, a limited partner, contributed P1 ,000,000. P joined as an industrial partner, contributing only hisservices. The Articles of Partnership, registered with the Securities and Exchange Commission, designated L and 0as managing partners; L was liable only to the extent of his capital contribution; and P was not liable for losses.In 2006, the partnership earned a net profit of P800,000. In the same year, P engaged in a different business withthe consent of all the partners. However, in 2007, the partnership incurred a net loss of P500,000. In 2008,thepartners dissolved the partnership. The proceeds of the sale of partnership assets were insufficient to settle its

obligation. After liquidation, the partnership had an unpaid liability ofP300,000.V. (l) Assuming that the just and equitable share of the industrial partner, P, in the profit in 2006amounted to P1 00,000, how much is the share of 0, a limited partner, in the P800,000 net profit? (1%)

(A) P160,000.(B) P175,000.(C) P280,000.(D) P200,000.(E) None of the above.

V. (2) In 2007, how much is the share of 0, a limited partner, in the net loss of P500,000? (1%)(A) P 0.(B) P1 00,000.(C) P125,000.(D) P200,000.(E) None of the above.

V. (3) Can the partnership creditors hold L, 0 and Pliable after all the assets of the partnership areexhausted? (1%)

(A) Yes. The stipulation exempting P from losses is valid only among the partners. L is liablebecause the agreement limiting his liability to his capital contribution is not valid insofar as thecreditors are concerned. Having taken part in the management of the partnership, 0 is liable ascapitalist partner.(B) No. P is not liable because there is a valid stipulation exempting him from losses. Since theother partners allowed him to engage in an outside business activity, the stipulation absolving P


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from liability is valid. For 0, it is basic that a limited partner is liable only up to the extent of hiscapital contribution.(C) Yes. The stipulations exempting P and L from losses are not binding upon the creditors. 0 islikewise liable because the partnership was not formed in accordance with the requirements of alimited partnership.(D) No. The Civil Code allows the partners to stipulate that a partner shall not be liable for losses.

The registration of the Articles of Partnership embodying such stipulations serves as constructivenotice to the partnership creditors.(E) None of the above is completely accurate.

VI. Gary is a tobacco trader and also a lending investor. He sold tobacco leaves to Homer for delivery within amonth, although the period for delivery was not guaranteed. Despite Gary's efforts to deliver on time,transportation problems and government red tape hindered his efforts and he could only deliver after 30 days.Homer refused to accept the late delivery and to pay on the ground that the agreed term had not been compliedwith.As lending investor, Gary granted a Pl,000,000 loan to Isaac to be paid within two years from execution of thecontract. As security for the loan, Isaac promised to deliver to Gary his Toyota Innova within seven (7) days, butIsaac failed to do so. Gary was thus compelled to demand payment for the loan before the end of the agreed two-year term.

VI. (l) Was Homer justified in refusing to accept the tobacco leaves? (1%)(A) Yes. Homer was justified in refusing to accept the tobacco leaves. The delivery was to bemade within a month. Gary's promise of delivery on a "best effort" basis made the deliveryuncertain. The term, therefore, was ambiguous.(B) No. Homer was not justified in refusing to accept the tobacco leaves. He consented to theterms and conditions of the sale and must abide by it. Obligations arising from contract have theforce of law between the contracting parties.(C) Yes. Homer was justified in his refusal to accept the delivery. The contract contemplates anobligation with a term. Since the delivery was made after 30 days, contrary to the terms agreedupon, Gary could not insist that Homer accept the tobacco leaves.(D) No. Homer was not justified in refusing to accept the tobacco leaves. There was no term inthe contract but a mixed condition. The fulfillment of the condition did not depend purely onGary's will but on other factors, e.g., the shipping company and the government. Homer shouldcomply with his obligation.

VI. (2) Can Gary compel Isaac to pay his loan even before the end of the two-year period? (1%)(A) Yes, Gary can compel Isaac to immediately pay the loan. Non-compliance with the promisedguaranty or security renders the obligation immediately demandable. Isaac lost his right to makeuse of the period.(B) Yes, Gary can compel Isaac to immediately pay the loan. The delivery of the Toyota Innova is acondition for the loan. Isaac's failure to deliver the car violated the condition upon which theloan was granted. It is but fair for Gary to demand immediate payment.(C) No, Gary cannot compel Isaac to immediately pay the loan. The delivery of the car as securityfor the loan is an accessory contract; the principal contract is still the P 1,000,000 loan. Thus,Isaac can still make use of the period.(D) No, Gary cannot compel Isaac to immediately pay the loan. Equity dictates that Gary shouldhave granted a reasonable extension of time for Isaac to deliver his Toyota Innova. It would beunfair and burdensome for Isaac to pay the P1,000,000 simply because the promised securitywas not delivered.

VII.Lito was a commercial pilot who flew for Pacific-Micronesian Air. In 1998, he was the co-pilot of the airline's FlightMA916 that mysteriously disappeared two hours after take-off from Agana, Guam, presumably over the PacificOcean. No trace of the plane and its 105 passengers and crew was ever found despite diligent search; Lito himselfwas never heard of again. Lito left behind his wife, Lita, and their two children.In 2008, Lita met and and married Jaime. They now have a child of their own.While on a tour with her former high school classmates in a remote province of China in 2010, Lita was surprised tosee Lito or somebody who looked exactly like him, but she was sure it was Lito because of the extreme surprise


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X. (1) Not long after Janet moved in, she received news that her application for a Master of Lawsscholarship at King's College in London had been approved. Since her acceptance of the scholarshipentailed a transfer of residence, Janet asked Arlene to return the advance rental payments she made.Arlene refused, prompting Janet to file an action to recover the payments. Arlene filed a motion todismiss, claiming that the lease on which the action is based, is unenforceable.If you were the judge, would you grant Arlene's motion? (1%)

(A) Yes, I will grant the motion because the lease contract between Arlene and Janet was not inwriting, hence, Janet may not enforce any right arising from the same contract.(B) No, I will not grant the motion because to allow Arlene to retain the advance payments wouldamount to unjust enrichment.(C) Yes, I will grant the motion because the action for recovery is premature; Janet should firstsecure a judicial rescission of the contract of lease.(D) No. I will not grant the motion because the cause of action does not seek to enforce any rightunder the contract of lease.

X. (2)Assume that Janet decided not to accept the scholarship and continued leasing Apartment No. 1.Midway through the lease period, Arlene decided to sell Apartment No. 1 to Jun in breach of her promiseto Janet to grant her the right of first refusal. Thus, Janet filed an action seeking the recognition of herright of first refusal, the payment of damages for the violation of this right, and the rescission of the salebetween Arlene and Jun.Is Janet's action meritorious? (1%)

(A) Yes, under the Civil Code, a promise to buy and sell a determinate thing is reciprocallydemandable.(B) No, the promise to buy and sell a determinate thing was not supported by a consideration.(C) Yes, Janet's right of first refusal was clearly violated when the property was not offered forsale to her before it was sold to Jun.(D) No, a right of first refusal involves an interest over real property that must be embodied in awritten contract to be enforceable.(E) None of the above.

TAXATION

ESSAY QUESTIONS

I.In its final adjustment return for the 2010 taxable year, ABC Corp. had excess tax credits arising from its over-withholding of income payments. It opted to carry over the excess tax credits to the following year. Subsequently,ABC Corp. changed its mind and applied for a refund of the excess tax credits.Will the claim for refund prosper? (6%)II.A group of philanthropists organized a non-stock, non-profit hospital for charitable purposes to provide medicalservices to the poor. The hospital also accepted paying patients although none of its income accrued to any privateindividual; all income were plowed back for the hospital's use and not more than 30% of its funds were used foradministrative purposes.Is the hospital subject to tax on its income? If it is, at what rate? (6%)III.ABC Corporation is registered as a holding company and has an office in the City of Makati. It has no actualbusiness operations. It invested in another company and its earnings are limited to dividends from this investment,interests on its bank deposits, and foreign exchange gains from its foreign currency account. The City of Makatiassessed ABC Corporation as a contractor or one that sells services for a fee. Is the City of Makati correct? (6%)IV.Atty. Gambino is a partner in a general professional partnership. The partnership computes its gross revenues,claims deductions allowed under the Tax Code, and distributes the net income to the partners, including Atty.Gambino, in accordance with its articles of partnership.


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In filing his own income tax return, Atty. Gambino claimed deductions that the partnership did not claim, such aspurchase of law books, entertainment expenses, car insurance and car depreciation. The BIR disallowed thedeductions.Was the BIR correct? (6%)V.Mr. Agustin, 75 years old and suffering from an incurable disease, decided to sell for valuable and sufficient

consideration a house and lot to his son. He died one year later.In the settlement of Mr. Agustin's estate, the BIR argued that the house and lot were transferred in contemplationof death and should therefore form part of the gross estate for estate tax purposes.Is the BIR correct? (7%)VI.On October 15, 2005, ABC Corp. imported 1,000 kilos of steel ingots and paid customs duties and VAT to theBureau of Customs on the importation. On February 17, 2009, the Bureau of Customs, citing provisions of the Tariffand Customs Code on post-audit, investigated and assessed ABC Corp. for deficiency customs duties and VAT.Is the Bureau of Customs correct? (7%)VII.XYZ Law Offices, a law partnership in the Philippines and a VAT-registered taxpayer, received a query by e-mailfrom Gainsburg Corporation, a corporation organized under the laws of Delaware, but the e-mail came fromCalifornia where Gainsburg has an office. Gainsburg has no office in the Philippines and does no business in thePhilippines.XYZ Law Offices rendered its opinion on the query and billed Gainsburg US$1,000 for the opinion. Gainsburgremitted its payment through Citibank which converted the remitted US$1 ,000 to pesos and deposited theconverted amount in the XYZ Law Offices account.What are the tax implications of the payment to XYZ Law Offices in terms of VAT and income taxes? (7%)VIII.Mr. Amado leased a piece of land owned by the Municipality of Pinagsabitan and built a warehouse on theproperty for his business operations. The Municipal Assessor assessed Mr. Amado for real property taxes on theland and the warehouse. Mr. Amado objected to the assessment, contending that he should not be asked to payrealty taxes on the land since it is municipal property.Was the assessment proper? (5%)IX.

In the settlement of the estate of Mr. Barbera who died intestate, his wife renounced her inheritance and hershare of the conjugal property in favor of their children. The BIR determined that there was a taxable gift and thusassessed Mrs. Barbera as a donor.Was the BIR correct? (7%)X.In 2010, pursuant to a Letter of Authority (LA) issued by the Regional Director, Mr. Abcede was assessed deficiencyincome taxes by the BIR for the year 2009. He paid the deficiency. In 2011, Mr. Abcede received another LA for thesame year 2009, this time from the National Investigation Division, on the ground that Mr. Abcede's 2009 returnwas fraudulent.Mr. Abcede contested the LA on the ground that he can only be investigated once in a taxable year. Decide. (7%)XI.In 2000, Mr. Belen bought a residential house and lot for P1,000,000. He used the property as his and his family'sprincipal residence. It is now year 2013 and he is thinking of selling the property to buy a new one. He seeks youradvice on how much income tax he would pay if he sells the property. The total zonal value of the propertyisP5,000,000 and the fair market value per the tax declaration is P2,500,000. He intends to sell it for P6,000,000.What material considerations will you take into account in computing the income tax? Please explain the legalrelevance of each of these considerations. (7%)XII.You are the retained tax counsel of ABC Corp. Your client informed you that they have been directly approachedwith a proposal by a BIR insider (i.e., a middle rank BIR official) on the tax matter they have referred to you forhandling. The BIR insider's proposal is to settle the matter by significantly reducing the assessment, but he will get50% of the savings arising from the reduced assessment.


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What tax, criminal and ethical considerations will you take into account in giving your advice? Explain therelevance of each of these considerations. (9%)MULTIPLE CHOICE QUESTIONS I. ABC Corp. was dissolved and liquidating dividends were declared and paid to the stockholders.What tax consequence follows? (1%)

(A) ABC Corp. should deduct a final tax of 10% from the dividends.

(B) The stockholders should declare their gain from their investment and pay income tax at the ordinaryrates.(C) The dividends are exempt from tax.(D) ABC Corp. should withhold a 10% creditable tax.

II. MGC Corp. secured an income tax holiday for 5 years as a pioneer industry. On the fourth year of the taxholiday, MGC Corp. declared and paid cash dividends to its stockholders, all of whom are individuals.Are the dividends taxable? (1%)

(A) The dividends are taxable; the tax exemption of MGC Corp. does not extend to its stockholders.(B) The dividends are tax exempt because of MGC Corp.'s income tax holiday.(C) The dividends are taxable if they exceed 50% of MGC Corp.'s retained earnings.(D) The dividends are exempt if paid before the end of MGC Corp.'s fiscal year.

III. Mr. Alas sells shoes in Makati through a retail store. He pays the VAT on his gross sales to the BIR and themunicipal license tax based on the same gross sales to the City of Makati. He comes to you for advice because hethinks he is being subjected to double taxation.What advice will you give him? (1%)

(A) Yes, there is double taxation and it is oppressive.(B) The City of Makati does not have this power.(C) Yes, there is double taxation and this is illegal m the Philippines.(D) Double taxation is allowed where one tax is imposed by the national government and the other by thelocal government.

IV. Congress passed a sin tax law that increased the tax rates on cigarettes by 1,000%. The law was thought to besufficient to drive many cigarette companies out of business, and was questioned in court by a cigarette companythat would go out of business because it would not be able to pay the increased tax.The cigarette company is __________ (1%)

(A) wrong because taxes are the lifeblood of the government

(B) wrong because the law recognizes that the power to tax is the power to destroy(C) correct because no government can deprive a person of his livelihood(D) correct because Congress, in this case, exceeded its power to tax

V. Mr. Alvarez is in the retail business. He received a deficiency tax assessment from the BIR containing only thecomputation of the deficiency tax and the penalties, without any explanation of the factual and legal bases for theassessment.Is the assessment valid? (1%)

(A) The assessment is valid; all that Mr. Alvarez has to know is the amount of the tax.(B) The assessment is invalid; the law requires a statement of the facts and the law upon which theassessment is based.(C) The assessment is valid but Mr. Alvarez can still contest it.(D) The assessment is invalid because Mr. Alvarez has no way to determine if the computation iserroneous.

VI. In 2010, Mr. Platon sent his sister Helen $1 ,000 via a telegraphic transfer through the Bank of PI. The bank'sremittance clerk made a mistake and credited Helen with $1,000,000 which she promptly withdrew. The bankdemanded the return of the mistakenly credited excess, but Helen refused. The BIR entered the picture andinvestigated Helen.Would the BIR be correct if it determines that Helen earned taxable income under these facts? (1%)

(A) No, she had no income because she had no right to the mistakenly credited funds.(B) Yes, income is income regardless of the source.(C) No, it was not her fault that the funds in excess of $1,000 were credited to her.(D) No, the funds in excess of$1,000 were in effect donated to her.


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VII. The municipality of San Isidro passed an ordinance imposing a tax on installation managers. At that time, therewas only one installation manager in the municipality; thus, only he would be liable for the tax.Is the law constitutional? (1%)

(A) It is unconstitutional because it clearly discriminates against this person.(B) It is unconstitutional for lack of legal basis.(C) It is constitutional as it applies to all persons in that class.

(D) It is constitutional because the power to tax is the power to destroy.VIII. XYZ Corporation manufactures glass panels and is almost at the point of insolvency. It has no more cash and allit has are unsold glass panels. It received an assessment from the BIR for deficiency income taxes. It wants to paybut due to lack of cash, it seeks permission to pay in kind with glass panels.Should the BIR grant the requested permission? (1%)

(A) It should grant permission to make payment convenient to taxpayers.(B) It should not grant permission because a tax is generally a pecuniary burden.(C) It should grant permission; otherwise, XYZ Corporation would not be able to pay.(D) It should not grant permission because the government does not have the storage facilities for glasspanels.

IX. Prior to the VAT law, sales of cars were subject to a sales tax but the tax applied only to the original or the firstsale; the second and subsequent sales were not subject to tax.Deltoid Motors, Inc. (Deltoid) hit on the idea of setting up a wholly-owned subsidiary, Gonmad Motors, Inc.(Gonmad), and of selling its assembled cars to Gonmad at a low price so it would pay a lower tax on the first sale.Gonmad would then sell the cars to the public at a higher price without paying any sales tax on this subsequentsale.Characterize the arrangement. (1%)

A. The plan is a legitimate exercise of tax planning and merely takes advantage of a loophole in the law.B. The plan is legal because the government collects taxes anyway.C. The plan is improper; the veil of corporate fiction can be pierced so that the second sale will beconsidered the taxable sale.D. The government must respect Gonmad's separate juridical personality and Deltoid's taxable sale to it.

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