civilQnA07

8/8/2019 civilQnA07

1/7

2007 bar questions and suggested answers (CIVIL LAW)

I.

Distinguish the following concepts:

1. Occupation v. possession. (5%)

Occupation is a mode of acquiring ownership which involves some form of holding (Articles 712 & 713, New Civil Code). Possession is the holding of a thing or the enjoyment of a right. (Article 532, NCC).

Occupation can take place only with respect to property without an owner, while possession can refer to allkinds of property, whether with or without an owner. Occupation in itself, when proper, confers ownership;

but possession does not by itself give rise to ownership. (II Tolentino, Civil Code, 1992 ed., p. 489).

2. Illegal and impossible conditions in a simple donation v. illegal and impossible conditions in an onerousdonation. (5%)

Illegal or imposable conditions in simple conditions are considered as not imposed, hence the donation isvalid. (Art. 727, NCC). On the other hand, donations with an onerous cause shall be governed by the ruleson contract (Art. 733, NCC). Under Art. 1183 0f the New Civil Code, (I)mpossible conditions, thosecontrary to good customs or public policy and those prohibited by law shall annul the obligation whichdepends upon them. Thus, the onerous donation is void.

II.(10%)

Manila Petroleum Co. owned and operated a petroleum operation facility off the coast of Manila. Thefacility was located on a floating platform made of wood and metal, upon which was permanently attachedthe heavy equipment for the petroleum operations and living quarters of the crew. The floating platformlikewise contained a garden area, where trees, plants and flowers were planted. The platform was tetheredto a ship, the MV 101, which was anchored to the seabed.

1. Is the platform movable or immovable property?

Alternative Answer:The platform is an immovable property by destination. It was intended by the owner to remain at a fixed

place on a river or coast.

Article 415(9) of the New Civil Code considers as a real property docks and structures which, though,floating, are intended by their nature and object to remain at a fixed place on a river, lake or coast.

NOTA BENE: In Fels Energy, Inc. v. The Province of Batangas, et.al., G.R. No. 168557, February 16,2007, the Court ruled that the power barges moored off the coast of Balayan, Batangas are real propertyunder Article 415(9) of the Civil Code. This case is beyond the coverage of the 2007 Bar Exam.

Alternative Answer:

The platform is a movable property if it is not permanently attached or anchored to the ship or seabed. As aresult, it may be brought from place to place for various purposes or may be towed or tethered to other vessels.

2. Are the equipment and living quarters movable or immovable property?Alternative Answer:With respect to the equipment, the same is real property under paragraph 5 of Article 415, NCC. It isintended to meet the needs of the industry being undertaken by Manila Petroleum Co. The equipment

partakes of the nature of the immovable upon which it has been placed.

1

8/8/2019 civilQnA07

2/7


The living quarters, if attached to the immovable platform with permanence, becomes an immovable aswell. Permanence means they cannot be separated without destroying the platform or the quarters. (Art.415[3], NCC). On the other hand, if the attachment is not permanent, or is merely superimposed on the

platform, then the living quarters are movable property.

Alternative Answer:

With respect to the equipment, the same is real property under paragraph 5 of Article 415. It is intended tomeet the needs of industry being undertaken by Manila Petroleum Co. The equipment partakes of thenature of the immovable upon which it has been placed.

If the platform is movable property, then the living quarters are movable property as well because they partake of the nature of the platform to which they are attached.

3. Are the trees, plants and flowers immovable or movable property?Alternative Answer:The trees, plants and flowers are also immovable, having been planted in the garden area under Art.415(2) which provides that Trees, plants, and growing fruits, while they are attached to the land or form anintegral part of the immovable are likewise immovable property.

Alternative Answer:If the platform is movable property, then the trees, plants and flowers are movable because they are notattached to the land or form an integral part of any immovable. (par.2, Art. 415, NCC)

III.Explain the following concepts and doctrines and give an example of each:

1. concept of trust de son tort (constructive trust) (5%)

A constructive trust is a form of implied trust created by equity to meet the demands of justice. It arisescontrary to intention against one who, by fraud, duress, or abuse of confidence, undue influence or mistakeor breach of fiduciary duty or wrongful disposition of anothers property, obtains or holds the legal right to

property which he is not entitled to under the law. (Huang v. Court of Appeals, G.R. No. 108525,September 13, 1994). An example of constructive trust is when a property is acquired through mistake or fraud, the person obtaining it, is by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. (Art. 1456, NCC).

2. doctrine of discovered peril (last clear chance) (5%)

The doctrine of discovered peril, is also known as the doctrine of last clear chance, applies in a situationwhere both parties are negligent so that the party who had the last clear chance or opportunity to avoid theaccident by proper care, but failed to do so, is considered solely responsible for the accident. (Picart v.Smith, G.R. No. L-12219, March 15, 1918). For example, if a truck driver saw an oncoming car thatswerved and entered the trucks lane to avoid running over a pedestrian, and the truck driver did not slowdown or move to the side of the road and give way to the oncoming car, even though he could have done soto avoid a collision, then the truck driver shall be solely responsible for the accident. (Mckee v. IAC, G.R.

No. L-68102, July 16, 1992).

IV.(10%)

Bedrock Land & Property Development Corp. is a development company engaged in developing andselling subdivisions, condominium units and industrial estates. In order to replenish its inventories, itembarked on an aggressive land banking program. It employed "scouts" who roam all over the Philippinesto look for and conduct investigations on prospective sites for acquisition and development, whether developed, semi-developed or raw land. The management of Bedrock asks you as the company counsel to

2

8/8/2019 civilQnA07

3/7

8/8/2019 civilQnA07

4/7


8. The obligation of the tortfeasor to pay damages for injuries or damages caused by him to another persondue to his act or omission, characterized by fault or negligence, is one which arises from quasi-delict (Art.2176, NCC) and

9. The obligation to pay reward for a certain act or accomplishment pursuant to a promise made to thegeneral public is an obligation based on unilateral promise.

VI.(10%)

Clara, thinking of her mortality, drafted a will and asked Roberta, Hannah, Luisa and Benjamin to bewitnesses. During the day of the signing of her will, Clara fell down the stairs and broke both her arms.Coming from the hospital, Clara insisted on signing her will by thumb mark and said that she can sign her full name later. While the will was being signed, Roberta experienced a stomach ache and kept going to therestroom for long periods of time. Hannah, while waiting for her turn to sign the will, was reading the 7thHarry Potter book on the couch, beside the table on which everyone was signing. Benjamin, aside fromwitnessing the will, also offered to notarize it. A week after, Clara was run over by a drunk driver whilecrossing the street in Greenbelt. May the will of Clara be admitted to probate? Give your reasons briefly.

Yes, the will of Clara may be probated.A thumbmark has been considered by the Supreme Court as a valid signature if intended by the testator to

be his signature. (Garcia v. La Cuesta, G.R. No. L-4067, November 29, 1951; De Gala v. Gonzales, G.R. No. L-37756, November 28, 1933).

The three witness rule required for the validity of an ordinary will is satisfied provided either of the twoconditions exists:

1. Roberta could see Clara and the other witnesses sign the will at any time while she was in the toilet, hadshe wanted to.

2. If Roberta could not have seen Clara and the other witnesses sign the will, the same is valid if the willwas acknowledged before a Notary Public other than Benjamin.

It is not necessary that the testator or the witnesses should actually see the others subscribe their names tothe instrument, provided that he is position to see them sign if he chooses (Nera v. Rimando, G.R. NO.5971, February 27, 1911; Yap Tua v. Yap Ka Kuan, G.R. No. L-6845, September 1, 1914). Thus, thesigning must be considered to be in the presence of Hannah, who was reading a book on the couch besidethe table.

VII.

Write "TRUE" if the statement is true or "FALSE" if the statement is false. If the statement is FALSE, statethe reason. (2% each).

1. Roberta, a Filipino, 17 years of age, without the knowledge of his parents, can acquire a house inAustralia because Australian Laws allow aliens to acquire property from the age of 16. (2%)

TRUE

2. If a man commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, the prescriptive period to file for legal separation runs from 2002. (2%)FALSE. Every act of sexual infidelity committed by the man is a ground for legal separation under Article55(8) of the Family Code (Tolentino, Civil Code, 1990 ed., 321) Hence, the prescriptive period begins torun upon the commission of each act of infidelity.

3. An individual, While single, purchases a house and lot in 1990 and borrows money in 1992 to repair it.In 1995, such individual gets married while the debt is still being paid. After the marriage, the debt is still

4

8/8/2019 civilQnA07

5/7


the responsibility of such individual. (2%)

Alternative Answer:FALSE. Under Article 94(7) of the Family Code, ante-nuptial debts of either spouse shall be considered asthe liability of the absolute community property insofar as they have redounded to the benefit of the family.

Alternative Answer:TRUE

4. The day after John and Marsha got married, John told her that he was impotent. Marsha continued to livewith John for 2 years. Marsha is now estopped from filing an annulment case against John.FALSE. Marsha is not estopped from filing an annulment case against John on the ground of impotencyunder Article 45(5) of the Family Code. Unlike the other grounds for annulment of voidable marriageswhich are subject to ratification by continued cohabitation, the law does not allow ratification under Article45(5).

5. Amor gave birth to Thelma when she was 15 years old. Thereafter, Amor met David and they got marriedwhen she was 20 years old. David had a son, Julian, with his ex-girlfriend Sandra. Julian and Thelma canget married.

Alternative Answer:TRUE.

Alternative Answer:FALSE. If the marriage was solemnized during the effectivity of the New Civil Code, the marriage betweenstepbrother and stepsister is void (Article 80[7]). However, under the Family Code, this marriage may bevalid. (Article 38, FC)

VIII.(10%)

In 1986, Jennifer and Brad were madly in love. In 1989, because a certain Picasso painting reminded Bradof her, Jennifer acquired it and placed it in his bedroom. In 1990, Brad and Jennifer broke up. While Bradwas mending his broken heart, he met Angie and fell in love. Because the Picasso painting reminded Angieof him, Brad in his will bequeathed the painting to Angie. Brad died in 1995. Saddened by Brads death,Jennifer asked for the Picasso painting as a remembrance of him. Angie refused and claimed that Brad, inhis will, bequeathed the painting to her. Is Angie correct? Why or why not?

Angie is not correct. The painting is not a property of Brad which he can dispose by will. Even if the painting was bought while they were madly in love, there can be no valid donation of such a valuable painting because it was not reduced to writing as required by Article 748(3) of the New Civil Code.

Therefore, this is a legacy of property not owned by the testator. If Brad knew that he did not own the painting, it may be considered as an instruction to acquire the painting from Angie. However, if heerroneously believed he owned the painting, the legacy is void.

IX.

Multiple choice: Choose the right answer. (2% each)

1. The parties to a bailment are the:

a. bailor;

b. bailee;

5

8/8/2019 civilQnA07

6/7


c. comodatario;

d. all the above;

e. letters a and bE

2. A deposit made in compliance with a legal obligation is:

a. an extrajudicial deposit;

b. a voluntary deposit;

c. a necessary deposit;

d. a deposit with a warehouseman;

e. letters a and bC

3. A contract of antichresis is always:

a. a written contract;

b. a contract, with a stipulation that the debt will be paid through receipt of the fruits of an immovable;

c. Involves the payment of interests, if owing;

d. All of the above;

e. Letters a and bD

4. An, assignee in a proceeding under the Insolvency Law does not have the duty of:

a. suing to recover the properties of the state of the insolvent debtor;

b. selling property of the insolvent debtor;

c. ensuring that a debtor corporation operate the business efficiently and effectively while the proceedingsare pending;

d. collecting and discharging debts owed to the insolvent debtor.C

5. In order to obtain approval of the proposed settlement of the debtor in an insolvency proceeding.

a. the court must initiate the proposal b. 2/3 of the number of creditors should agree to the settlement;

c. 3/5 of the number of creditors should agree to the settlement;

d. 1/3 of the total debts must be represented by the approving creditors;

e. Letters a and bB

6

8/8/2019 civilQnA07

7/7


X.(10%)

For purposes of this question, assume all formalities and procedural requirements have been compliedwith.In 1970, Ramon and Dessa got married. Prior to their marriage, Ramon had a child, Anna. In 1971 and1972,Ramon and Dessa legally adopted Cherry and Michelle,respectively. In 1973, Dessa died while giving

birth to Larry.Anna had a child, Lia. Anna never married. Cherry, on the other hand, legally adopted Shelly.Larry had twins, Hans and Gretel, with his girlfriend, Fiona. In 2005, Anna, Larry,and Cherry died in a car accident. In 2007, Ramon died.Who may inherit from Ramon and who may not? Give your reasons briefly.

Lia and Michele are the only possible heirs of Ramon.

Lia succeeds by representation of Anna who, if she is an illegitimate child of Ramon, may be represented by her descendants. (Article 990, NCC). If Anna is a legitimate child, Lia may not inherit (Article 992, NCC)

Michelle may inherit as an adopted child of Ramon, unless the word respectively means she was adoptedonly by Dessa. In the latter case, Michelle will not inherit from Ramon.

Shelly cannot inherit from Ramon. She cannot represent Cherry in the inheritance of Ramon since filiationcreated by adoption is exclusively between the adopter and the adopted. The legal relationship does notextend to the children of the adopted. (Rabuya, Law on Persons and Family Relations, 2006 ed., IIITolentino, Civil Code, 1992 ed., 448-449).

Hans and Gabriel, being illegitimate children of Larry, cannot inherit from Ramon ab intestato because of the barrier between the legitimate and the illegitimate. (Article 992, NCC)

Dessa, Ana , Larry and Cherry will not inherit from Ramon because they predeceased Ramon. The lawrequires that one must be alive to be capacitated to inherit. (Article 1025, NCC)

7

civilQnA07

Documents

Transcript of civilQnA07