Bar Review Institute

University of the Philippines College of Law

LAST MINUTE TIPS IN

MERCANTILE LAW
BAR 2020/2021

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I. Corporations Q2: Is a holding corporation liable for the

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A. Kinds of Corporations claims of the employees of its subsidiary?
Q1: Bases Conversion and Development A2: No. Mere ownership of all or nearly all
Authority (“BCDA”) is created under a of the capital stock of the corporation is
special law and has an authorized capital not enough reason to disregard the

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of P100,000,000,000.00 which may be fully separate personality of the holding
subscribed by the Republic of the company unless there is control not just in
Philippines and shall either be paid up share ownership but in finances and
from the proceeds of the sales of its land business practices; such control was used

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assets or by transferring properties valued
in such amount to BCDA. BCDA has no
voting shares of stocks and was formed
for a specific purpose - to own, hold
to perpetuate fraud or violate a duty in
contravention of the plaintiff’s right; and
such control and breach of duty are the
proximate cause suffered by the plaintiff.
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and/or administer military reservations in (Maricalum Mining Corporation v. Ely
the country and implement its conversion Florentino, G.R. No. 221813, July 23, 2018)
to other productive use. Is BCDA a
Q3: Person A donated a parcel of land to
government-owned or controlled
an XYZ corp., pending issuance by SEC of
corporation?
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XYZ’s Certificate of Incorporation. XYZ

A1: No, because BCDA is neither a stock accepted the donation based on the fact
nor a nonstock corporation. that it is a de facto corporation. After 2
days, SEC has issued XYZ’s Certificate of
In order to qualify as a GOCC, the entity
Incorporation. (a) Is XYZ correct that it is a
must either be a stock or non-stock
de facto corporation and can validly
corporation. BCDA is not a stock
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accept the donation? (b) Can heirs of

corporation because it has no voting
Person A invalidate the donation because
shares of stock. In addition, BCDA does
XYZ has no personality to accept the
not qualify as a nonstock corporation
donation and hold the land?
because it is not organized for any of the
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purposes mentioned under Section 87 of A3: (a) XYZ corp. is not correct, as XYZ
the Revised Corporation Code. (Bases corp. is not a de facto corporation when it
Conversion and Development Authority v. accepted the donation. The filing of
Commissioner of Internal Revenue, G.R. No. articles of incorporation and the issuance
205925, June 20, 2018) of the certificate of incorporation are
essential for the existence of a de facto
corporation. In the absence of a certificate

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 of registration, it cannot be said that there stockholder’s personal property. The sole
is a bona fide attempt to incorporate. stockholder may also be made liable
beyond his subscription if there are
(b) No. While XYZ corp. is not a de facto
grounds to pierce the veil of corporate
corporation, heirs of Person A cannot
fiction. [Section 130, RCC]
invalidate the donation on the grounds
that XYZ corp. has no personality when it C. Composition of / Membership in
accepted the donation because of the Board of Directors
doctrine of corporation by estoppel. The
Q6: Assuming that the stockholder has the
doctrine of corporation by estoppel also

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qualifications and none of the
applies when a person who has assumed
disqualifications under the Corporation
an obligation in favor of a non-existent

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Code to be a director of a publicly listed
corporation, having transacted with the
company, and has enough votes to be
latter as if it was duly incorporated, is
assured of a board seat, does a stockholder
prevented from denying the existence of
have any vested right to be elected as a
the latter to avoid the enforcement of the
director?

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contract. (Missionary Sisters of Our Lady of
Fatima v. Alzona, G.R. No. 224307, August 6, A6: No, because while he may have
2018) enough votes, he may not have the
qualifications of a director under the law
B. Corporation Sole
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Q4: May a corporation sole acquire and
hold real property in the Philippines if its
presiding bishop, priest, minister or rabbi
and by-laws of the corporation. The
by-laws, for instance, may provide as a
ground for disqualification being a
director, stockholder, or a representative of
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is a foreigner? a competing corporation. (John Gokongwei
v. Securities and Exchange Commission, G.R.
A4: Yes, a corporation sole, regardless of
No. L-45911, April 11, 1979)
the nationality of its presiding bishop,
priest, minister, rabbi or presiding elder, Q7: What officers are the directors of a
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may acquire real property in the corporation required to elect?

Philippines; provided that at least 60% of
A7: Immediately after their election, the
the members of the religious
directors of a corporation must formally
denomination are Filipino citizens and the
organize and elect: (a) a president, who
real property is necessary and convenient
must be a director; (b) a treasurer, who
for the lawful use of the corporation. (The
must be a resident; (c) a secretary, who
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Roman Catholic Apostolic Administrator of

must be a citizen and resident of the
Davao, Inc. v. The Land Registration
Philippines; and (d) such other officers as
Commission, G.R. No. L-8451, December 20,
may be provided in the by-laws. If the
1957)
corporation is vested with public interest,
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Q5: May the sole stockholder of the OPC the board shall also elect a compliance
be made liable beyond his subscription to officer. The same person may hold two (2)
the corporation? or more positions concurrently, except that
no one shall act as president and secretary
A5: Yes, provided that the sole stockholder
or as president and treasurer at the same
cannot prove that the corporation was
time, unless otherwise allowed by the
adequately financed and that the property
of the OPC is independent of the

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 Revised Corporation Code. [Section 24, of the corporation. This is covered by the
RCC] business judgement rule. It was held that
the determination of the necessity for
Q8: What corporations are required to
additional offices and/or positions is a
have independent directors in their
management prerogative which courts
Boards?
won’t review in the absence of any proof
A8: Independent directors are now that such prerogative was exercised in bad
explicitly required by the Revised faith. (Filipinas Port Services v. Victoriano
Corporation Code to constitute at least Go, et al., G.R. No. 161886, March 16, 2007)

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20% of the Board of corporations vested
Q10: What are the requisites to create an
with public interest. These include:
Emergency Board under the Revised

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a. Public companies as described Corporation Code?
under the Securities Regulation
A10: The power to create an Emergency
Code. A public company is any
Board is lodged with the Board. The
corporation with class of equity
requisites are:

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shares listed for trading on an
Exchange, or with assets in a. The vacancy prevents the
excess of P50 Million and has remaining directors from
200 or more holders, at least constituting a quorum;

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shares.
b. Banks and quasi-banks,
Non-Stock Savings and Loan
b. Emergency action is required to
prevent grave, substantial, and
irreparable loss or damage to
the corporation;
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Association(NSSLAs), c. The vacancy may be
pawnshops, corporations temporarily filled from among
engaged in money service the officers of the corporation;
business, pre-need, trust and d. The appointment must be
insurance companies, and made by the unanimous vote of
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other financial intermediaries; the remaining directors or

and trustees; and
c. Other corporations engaged in e. The action by the designated
business vested with public director or trustee shall be
interest similar to the above, as limited to the emergency action
may be determined by the SEC. necessary, and the term shall
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[Section 22, RCC] cease within a reasonable time

from the termination of the
D. Powers, Duties and Prerogatives emergency or upon the election
of Board of Directors and of the replacement director or
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Stockholders trustee, whichever comes

earlier.
Q9: Can the board of directors or trustees
create positions or committees? The corporation must notify the SEC
within three (3) days from the creation of
A9: Yes, the board has the power to create
the emergency board, stating therein the
positions, committees, or offices as may be
reason for its creation. [Section 28, RCC]
necessary to conduct the business affairs

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 personally civilly liable for a violation of
the trust receipts law owing to the
separate juridical personality of the
Q11: When may a director, officer, or corporation, unless he signs it in his
trustee be held liable for acts of the personal capacity or he signs an
corporation? agreement making him personally liable
for the obligation of the corporation (BDO
A11: A director, officer, or trustee may be
Unibank, Inc. v. Antonio Choa, G.R. No.
held personally liable in the following
237553, July 10, 2019).
cases:

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Q13.A: Define the Nell Doctrine.
a. Knowingly voting for or

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assenting to patently unlawful A13.A: The Nell Doctrines provides the
acts of the corporation; general rule that where one corporation
b. Gross negligence or bad faith in sells or otherwise transfers all of its assets
directing the affairs of the to another corporation, the latter is not
corporation; liable for the debts and liabilities of the

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c. Acquiring any personal or transferor.
pecuniary interest in conflict
Q13.B: State the exceptions to the Nell
with his duty as director or
Doctrine
trustee or officer resulting in
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d. He consents to the issuance of
watered stocks or who, having
A13.B: The exceptions to the Nell Doctrine
are:
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a. When the buyer expressly or
knowledge thereof, does not
impliedly assumes the
forthwith file with the
liabilities of the seller;
corporate secretary his written
b. If the sale amounts to a merger
objection thereto;
or consolidation;
e. Her agrees to hold himself
c. If the sale is entered into
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personally liable with the

fraudulently or made in bad
corporation; and
faith; and
f. He is made, by a specific
d. If the buyer is merely a
provision of law, to personally
continuation of the personality
answer for his corporate action.
of the seller or the so-called
(Pioneer Insurance Surety
business-enterprise transfer
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Corporation v. Morning Star

rule.
Travel & Tours Inc., G.R. No.
(Y-I Leisure Philippines, Inc. v. Yu, G.R. No.
198436, July 8, 2015).
207161, September 8, 2015)
Q12: May a director/officer who signed a
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Q14: What is an “appraisal right”?

trust receipt agreement on behalf of the
entrustee corporation be held civilly liable A14: Appraisal right is the right of the
in case of violation of the trust receipts stockholder to demand the payment of the
law? fair value of his shares after dissenting
against a proposed corporate act in the
A12: No, a director who signed a trust
cases specified by the law. In practical
receipt agreement may not be held
terms, it means the right to get out of the

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 corporation and get back his equity filled by the stockholders in a meeting
investment. [Section 80, RCC] called for such purpose.
When Director A resigned, Director A
held the office in a hold-over capacity due
Q15: Person A owns 5 (out of 100,000)
to the fact that a successor has not been
shares of XYZ corp. For Person A’s peace
elected and has failed to qualify. The
of mind, Person A requested XYZ
vacancy was, in fact, due to the expiration
corporation if the corporate books can be
of Director A’s term of office (and not his
inspected. Can XYZ corporation refuse the
resignation). The resignation of a

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request stating that Person A did not show
hold-over director will not change the
any circumstance that an examination is
nature of the cause of the vacancy which is

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proper?
due to the expiration of the director’s
A15: No. Person A, as a stockholder, has term. As such, the vacancy must be filled
the right to inspect the records of a by the stockholders in a regular or special
corporation. The stockholders’ right of meeting called for the purpose pursuant to

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inspection of the corporation’s books and the Revised Corporation Code. (Valle Verde
records is based upon their ownership of Country Club, Inc. et al. v. Africa, G.R. No.
the assets and property of the corporation, 151969, September 4, 2009)
regardless of the number of shares the
E. Articles of Incorporation and
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stockholder owns. Also, the right to
inspect is not conditional of a showing of
any particular dispute or of proving any
mismanagement or other occasion
By-laws
Q17: Will a pledgee, to whom shares were
assigned as security for a loan transaction
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rendering an examination proper. If the but was not given both the Articles of
right is to be denied, the corporation Incorporation and by-laws of the
should show proof that the purpose of the Corporation, be bound by by-laws of the
shareholder is improper, by way of Corporation?
defense. (Terelay Investment and
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A17: No, since the pledgee has no

Development Corporation v. Cecilia Teresita J.
knowledge of the by-laws and is not a
Yulo, G.R. No. 160924, August 5, 2015).
stockholder of the corporation.
Q16: Director A is a director of XYZ corp.
By-laws are only binding among the
in 2019. However, due to the COVID
stockholders of the corporation. Third
situation in 2020, XYZ corp. was not able
parties are not bound by the same, unless
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to obtain the required quorum for a

such third party has acquired knowledge
stockholders’ meeting to elect the directors
of the by-laws at the time the transaction
for 2020. In any case, Director A remained
or agreement involving the shares. Thus,
as a director until 2021 when he resigned
by-laws of the corporation are not binding
due to personal reasons. May directors
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on the pledgee of the same share of stock

(since the board still constitutes a quorum)
since the latter had no actual knowledge
fill the vacancy caused by Director A’s
of the by-laws when the shares were
resignation?
assigned to it as security for a loan
A16: No, because Director’s A vacancy, transaction. (China Banking Corporation v.
despite his resignation, is due to the Court of Appeals, G.R. No. 117604, March 26,
expiration of his term which may only be 1997)

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 II. Intra-corporate Dispute (Concept) not copyrightable. However, an event can
be captured and presented in a specific
Q18: When is a dispute considered
medium. News covered in television
intra-corporate in nature?
involves framing shots, using images,
A18: A dispute is considered graphics, and sound effects. It involves
intra-corporate in nature if it satisfies both creative process and originality. Television
the relationship test and nature of news footage is an expression of the news.
controversy test. News as expressed in a video footage is
Under the relationship test, the parties in entitled to copyright protection. (ABS-CBN

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dispute must be any one of the following: Corporation v. Gozon, et al., G.R. No. 195956,
(a) between the corporation, partnership, March 11, 2015)

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or association and the public; (b) between
the corporation, partnership, or
association and its stockholders, partners, Q20: Can a television show concept be
members, or officers; (c) between the copyrighted?

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corporation, partnership, or association
and the State as far as its franchise, permit A20: No. The copyright over the
or license to operate is concerned; and (d) audio-visual recordings of a dating show
among the stockholders, partners, or is valid. However, this does not extend to
the general concept or format of its dating
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associates themselves.
Under the nature of the controversy test,
the disagreement must not only be rooted
game show. Copyright does not extend to
an idea, procedure, process, system,
method of operation, concept, principle, or
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in the existence of an intra-corporate
discovery, regardless of the form in which
relationship, but must pertain to the
it is described, explained, illustrated, or
enforcement of the parties’ correlative
embodied in such work. The IP Code,
rights and obligations under the
Corporation Code and the internal and under Section 175, states that no protection
shall extend, under this law, to any idea,
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intra-corporate regulatory rules of the

corporation. If the relationship and its procedure, system, method or operation,
incidents are merely incidental to the concept, principle, discovery or mere data
controversy of if there will still be conflict as such, even if they are expressed,
even if the relationship does not exist, then explained, illustrated or embodied in a
no intra-corporate controversy exists. work. (Joaquin, Jr. v. Drilon, G.R. No.
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(Norma D. Cacho and North Star 108946, January 28, 1999, Mendoza, J.)
International Travel, Inc. vs. Virginia D.
Balagtas, G.R. No. 202974, February 7, 2018) Q21: Are creators required to register their
literary or artistic works for these to be
III. Intellectual Property protected by copyright?
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A. Copyright
A21: No, literary and artistic works are
Q19: Is news footage copyrightable? original intellectual creations in the
literary and artistic domain protected from
A19: Yes, an idea or event must be the moment of their creation. [Section 172,
distinguished from the expression of that IP Code]
idea or event. News or the event itself is

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 At most, the certificates of registration and The right to alter work prior to or
deposit issued by the National Library and withhold publication, the right of
the Supreme Court Library serve merely integrity, and the right against false
as a notice of recording and registration of attribution shall be coterminous with the
the work but do not confer any right or economic rights, which is during the life of
title upon the registered copyright owner the author and for 50 years after his death.
or automatically put his work under the [Section 198, IP Code]
protective mantle of the copyright law. It is
not a conclusive proof of copyright

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ownership. (Manly v. Dadodette, G.R. No. Q25: Can moral rights be waived?
165306, September 20, 2005)

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A25: An author may waive his moral
Q22: When is there a substantial rights by a written instrument, but no
reproduction of a copyrightable work? such waiver shall be valid where its effect
is to permit another person: (1) to use the
A22: It does not necessarily require that

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name of the author or the title of his work
the entire copyrighted work, or even a
or his reputation with respect to any
large portion of it, be copied. If so much is
altered version of his work which would
taken that the value of the original is
injure the reputation of another; and (2) to
sensibly diminished, or the labors of the
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original author are substantially and to an
injurious extent appropriated by another,
that is sufficient in point of law to
use the name of the author with respect to
a work he did not create. [Section 195, IP
Code]
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constitute piracy. (Habana v. Robles, G.R. Q26: Can moral rights be assigned or
No. 131522, July 19, 1999, Pardo, J.) licensed?

B. Moral Rights A26: No. Under Section 198 of the IP Code,

moral rights shall not be assignable or
Q23: State the moral rights of copyright
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subject to license.
holders.
C. Fair Use Principle
A23: The moral rights of copyright holders
under Section 193 of the IP Code are (1) Q27: What is the definition of fair use?
the right of attribution; (2) the right to alter
A27: Fair use has been defined as a
work prior to, or withhold publication; (3)
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privilege to use the copyrighted material

right of integrity, or the right to object to
in a reasonable manner without the
any distortion, mutilation or modification
consent of the copyright owner or as
of the work which would be prejudicial to
copying the theme or ideas rather than
his reputation; and (4) right against false
their expression. No question of fair or
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attribution.
unfair use arises however, if no copying is
Q24: What is the term of moral rights? proved to begin with. This is in
consonance with the principle that there
A24: The right of attribution shall last
can be no infringement if there was no
during the lifetime of the author, and in
copying. It is only where some form of
perpetuity after his death.
copying has been shown that it becomes

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 necessary to determine whether it has Q30: What can be insured?
been carried to an "unfair," that is, illegal,
A30: Any contingent or unknown event,
extent. (Habana v. Robles, G.R. No. 131522,
whether past or future, which may
July 19, 1999, Pardo, J.) damnify a person having an insurable
interest, or create a liability against him,
Q28: What factors are considered in
may be insured against. [Section 3,
determining fair use?
Insurance Code]
A28: Determining fair use requires
Q31: Who may be insured?
application of the four-factor test. Section

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185 of the Intellectual Property Code lists A31: Anyone, except a public enemy, may
four (4) factors to determine if there was be insured. [Section 7, IC]

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fair use, viz: Every person has an insurable interest in
a. The purpose and character of the the life and health of (a) himself; (b) any
person on whom he depends wholly or in
use, including whether such use is of a
part for education or support; (c) any

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commercial nature or is for non-profit
person under a legal obligation to him for
educational purposes;
the payment of money, or respecting
b. The nature of the copyrighted property or services, of which death or
work; illness might delay or prevent the
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c. The amount and substantiality of
the portion used in relation to the
performance; and (d) any person upon
whose life any estate or interest vested in
him depends. [Section 10, IC]
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copyrighted work as a whole; and
Q32: If a person procures insurance on his
d. The effect of the use upon the own life, who may be his beneficiary?
potential market for or value of the
A32: A person may designate anyone as a
copyrighted work. beneficiary except those disqualified to
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Q29: Can quotations from a book receive donation under Article 739 of the
constitute infringement? Civil Code such as (1) persons in illicit
relations; (2) persons found guilty of
A29: Not automatically. Quotations from a adultery or concubinage; and (3) public
published work if they are compatible officer or his wife, descendants, or
with fair use and only to the extent ascendants. The beneficiary need not have
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justified by the purpose, including an insurable interest in the life of the

quotations from newspaper articles and insured [Article 2012, Civil Code].
periodicals in the form of press summaries Q33: Distinguish insurable interest in
are allowed provided that the source and property insurance from insurable interest
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the name of the author, if appearing on the in life insurance.

work, are mentioned. (Habana v. Robles,
A33: In property insurance, the actual
G.R. No. 131522, July 19, 1999, Pardo, J.)
value of the interest therein is the limit of
IV. Insurance the insurance that can be validly be placed
A. What Can Be Insured thereon. In life insurance there is no limit
to the amount of insurance that may be

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 taken upon life except in case of a creditor Q35: What is personal information ?
securing the life of the debtor in which
A35: The Data Privacy Act defines
case the insurance should be limited to the
personal information as any information,
amount of the debt.
whether recorded in a material form or
In property insurance, an interest insured not:
must exist when the insurance takes effect
(a) from which the identity of an
and when the loss occurs but need not
individual is apparent or can be
exist in the meantime. In life insurance, it
reasonably and directly ascertained
is enough that insurable interest exists at

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by the entity holding the
the time when the contract is made, but it
information, or
need not exist at the time of loss. [Section

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(b) when put together with other
19, IC]
information would directly and
B. Claims for Life Insurance certainly identify an individual.
[Section 3(g)]
Q34: If a fact, unintentionally concealed by

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the insured, was not the proximate cause For example, an individual’s identity
of the loss, may the insurer raise would be apparent and can be directly
concealment as a defense against the ascertained from their full name alone
insurance claims? (under (a) above). This may not be the case

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A34: Yes, provided that the fact concealed
is a material fact.
with an individual’s permanent address,
which alone may not be sufficient to
directly ascertain their identity, but such
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While the facts concealed need not be the address is also personal information under
proximate cause of the loss in order to (b) above, because it would certainly
constitute concealment or be intentionally identify that individual when put together
concealed, such facts must be material. with other information.
Materiality is to be determined not by the
event, but solely by the probable and Q36: Define consent as required under the
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reasonable influence of the facts upon the Data Privacy Act.

party to whom the communication is due, A36: Consent is any freely given, specific,
in forming his estimate of the informed indication of will, whereby the
disadvantages or the proposed contract, or data subject agrees to the collection and
in making his inquiries. The test is processing of their personal information. It
whether the matters concealed would shall be evidenced by written, electronic,
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have definitely affected the insurer’s or recorded means. It may also be given
action on the application of the insured, on behalf of the data subject by an agent
either by approving it with the specifically authorized by the data subject
corresponding adjustment for a higher to do so. [Section 3(b)]
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premium or rejecting the same. (Sunlife Q37: Who are covered by the Data Privacy
Assurance Company of Canada v. Court of Act?
Appeals, G.R. No. 105135, June 22, 1995)
A37: The DPA applies to any natural and
V. Republic Act No. 10173 (Data Privacy Act juridical person involved in personal
of 2012) information processing including those
personal information controllers and

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 processors who, although not found or (e) Information necessary in order to carry
established in the Philippines, use out the functions of public authority
equipment that are located in the which includes the processing of personal
Philippines, or those who maintain an data for the performance by the
office, branch or agency in the Philippines. independent, central monetary authority
[Section 4]. and law enforcement and regulatory
agencies of their constitutionally and
Q38: What does personal information
statutorily mandated functions. [Section 4]
processing mean?
Q40: What are the general principles for

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A38: Personal information processing
the lawful processing of personal
refers to any operation or any set of
information?

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operations performed upon personal
information including, but not limited to, A40: Personal information shall be
the collection, recording, organization, processed according to the general
storage, updating or modification, principles of transparency, legitimate
retrieval, consultation, use, consolidation, purpose and proportionality. [Section 11]

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blocking, erasure or destruction of data.
This means that the data subject should be
[Section 3(j)]
made aware of the nature and purpose of
Q39: Does the Data Privacy Act provide the processing of their data (transparency);

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for exceptions?
A39: Yes, the DPA does not apply to:
that such purpose should be not contrary
to law, morals, or public policy (legitimate
purpose); and the processing shall be
relevant to such purpose and not excessive
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(a) Information about any individual who
is or was an officer or employee of a (proportionality).
government institution that relates to the
Q41: In order to comply with a local
position or functions of the individual;
ordinance restricting unvaccinated
(b) Information about an individual who is persons and persons over the age of 65
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or was performing service under contract years old from dining in restaurants, your
for a government institution that relates to favorite cafe requests you to accomplish a
the services performed, including the health declaration for this purpose before
terms of the contract, and the name of the entering. The cafe asks you for
individual given in the course of the information such as your vaccination
performance of those services; status and age, as well as your nationality,
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marital status, and religion. Is their

(c) Information relating to any
collection of personal information lawful?
discretionary benefit of a financial nature
such as the granting of a license or permit A41: No. Personal information shall be
given by the government to an individual, collected according to the principles of
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including the name of the individual and transparency, legitimate purpose, and
the exact nature of the benefit; proportionality. Proportionality is absent
here, because a person’s nationality,
(d) Personal information processed for
marital status, and religion are not
journalistic, artistic, literary or research
relevant to the legitimate purpose of the
purposes
health declaration, which is only to check
a guest’s vaccination status and age.

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 Q42: What are the rights of a data subject?
A42: The rights of a data subject are:
(IBAR OP C D)
a. The right to be informed whether or
not his information would be
processed, what is the purpose,
scope, extent, and who is the
personal information controller

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(PIC).
b. The right to block the use of

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data/information beyond the stated
purpose.
c. The right to access information from
the PIC
d. The right to rectify false information.

02
e. The right to object to the processing
of information.
f. The right of portability which is
where the data stored by the PIC
I2 may be obtained by the data subject
and transferred to his own medium.
g. The right to file a complaint with the
BR
National Privacy Commission.
h. The right to ask for damages in case
the information process is false,
incomplete or rendered false,
incomplete or irrelevant, or in excess
AW

of the purpose specified by the PIC.

i. The right to data portability, i.e.,
where personal information is
processed by electronic means, and
in a structured and commonly used
format, the data subject has the right
PL

to obtain from the PIC a copy of the

data undergoing processing, in an
electronic or structured format
which is commonly used and allows
U

for further use by the data subject.

[Section 16]

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