Introduction to Law

CHAPTER 1
LAW, ITS CONCEPT AND CLASSIFICATION
Definition of Law
Broadest term – means any rule of action or norm of conduct applicable to all kinds of action and to all objects of
creation. In this sense therefore, it includes all laws, whether they refer to state law, physical law, divine law, and others.
Strict legal sense - law is defined as a rule of conduct, just and obligatory, laid down by legitimate authority for
common observance and benefit.
Elements of the law:
1. It is a rule of conduct- Laws serve as guides of an individual in relation to his fellowmen and to his community;
2. Law must be just - Rationale: stability of the social order that is why, a chapter on Human Relations is devoted in
New Civil Code of the Philippines.
3. It must be obligatory. – Must be enforced to all.
4. Laws must be prescribed by legitimate authority. – Prescription of laws by legitimate authority commands respect
for all the people to follow. The authority to make laws is conferred upon those fully chosen by the sovereign will of the
people under Section 1, Article II of the Philippine Constitution which provides that “sovereignty resides in the people
and all government authority emanates from them.”
5. Laws must be ordained for the common benefit. – This is exemplified in the famous latin maxim, “Salus Populi Est
Supreme Lex” which can be translated as the welfare of the people shall be the supreme law. Laws should be applied not
only to a particular group of citizens. They are supposed to be applied equally to all citizens regardless of their religion,
political persuasion, and status in life.
CLASSIFICATION OF LAW
1. Natural Law- This law derives its force and authority from God. It is superior to other laws. It is binding to the whole
world, in all countries and at all times.
2. Positive Law. - statutes which have been laid down by a legislature, court, or other human institution and can take
whatever form the authors want.
Natural Law
a. Physical Law – Universal rule of action that governs the conduct and movement of things which are non-free and
material.

b. Moral Law – Set of rules which establishes what is right and what is wrong as dictated by the human conscience and as
inspired by the eternal law.

c. Divine Law –
a. Divine Positive law – 10 commandments
b. Divine Human Positive law – commandments of the church

d. Public Law –
a. Constitutional Law – is the fundamental law of the land which defines the powers of the government.

b. Administrative Law – the law which fixes the organization and determines
the competence of the administrative authorities
and which regulates the methods by which the
functions of the government are performed.

c. International law – body of rules which regulates the community of nations.

d. Private law - Body of rules which creates duties, rights and obligations, and
means and methods of setting courts in motion for the
enforcement of a right of or a redress of wrong.

d.1 substantive private law

- those rues which declare legal relations of litigants when the
Courts have been properly moved to action upon facts duly
presented to them.

d.2 procedural or adjective private law

- refers to the means and methods of setting the courts in motion,
Making the fats known to them and effectuating their judgments.

SOURCES OF LAW

a. LEGISLATION
Before Martial Law in 1972
- Power to legislate is vested in congress: Senate and House
 During Martial Law and dissolution of congress
- power to legislate is vested in the President of the Philippines
e.g. presidential decrees, letters of instruction,
- when the Batasang Pambansa was organized, legislative power is principally
Vested in the said body although the president by virtue of Amendment No. 6 continued to issue decrees
in the exigency of the situation requires or other
Emergencies.

After Martial Law

- Restoration of the legislation which is vested in congress: Senate and House

b. PRECEDENT
This means that the decisions of principles enunciated by a court of competent jurisdiction on a question of law do
not only serve as guides but also as authority to be followed by all other courts of equal or inferior jurisdiction in all cases
involving the same question until the same is overruled or reversed by a superior court.

In the Philippines, this doctrine of STARE DECISIS is not applied and recognized in the same manner that it is
applied in common law countries. However, our New Civil Code provides as follows: “xxx judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.” (Article 8, NCC).

c. CUSTOM
Customs have the fore of law only when they are acknowledge and approved by society through long and
uninterrupted usage.

Requisites before the courts consider customs:

1. A custom must be proved as a fact according to the rules of evidence. (Article 12, NCC).
2. The custom must not be contrary to law (Article 11, NCC).
3. There must be a number of repeated acts and these repeated acts must have been uniformly performed.
4. There must be a judicial intention to make a rule of social conduct; and
5. A custom must be acknowledge and approved by society through long and uninterrupted usage.

d. COURT DECISION
Judicial decisions which apply or interpret the constitution and the laws are part of the legal system in the
Philippines but they are not laws. However, although judicial decisions are not laws, they are evidence of the meaning
and interpretations of the laws.

In the Philippines, we adhere to the doctrine of STARE DECISIS which means that once a case has been decided
one way, then another case involving exactly the same question or point of law should be decided in the same manner.
This principle, however, does not necessarily mean that erroneous decisions, or those found to be contrary to law must be
perpetuated. On the contrary, they should be abandoned.

CHAPTER II
WORLD’S LEGAL SYSTEMS
THREE PREVAILING LEGAL SYSTEMS
There are three legal systems that have exerted influence to our laws in the past several centuries and which are
still continuously affecting our jurisprudence. The three are:
- Roman Law
- Anglican or Common Law
- Mohammedan Law
Of the three legal systems, Roman Law has greatly influenced Philippine laws. It therefore deserves a more
extensive discussion.

ROMAN LAW
Roman Law is the body of rules and principles adopted to guide the Romans in the conduct or observance of their
personal and official affairs without necessarily specifying the period or the time when those rules were adopted or
promulgated. Roman Law, while in its first stage of growth, was dominated by ritualism and strong religious tenor. It was
then referred to as JUS QUIRITUM. Later, it was referred to as the civil law of the Romans, then known as JUS CIVILE.
Value and Importance of Roman Law
Our New Civil Code is basically Roman in origin. Numerous maxims and legal principles still found in law books
are continuously being used and cited by law professors and students and even by law practitioners in their pleadings. It is
worthwhile to mention and to remember some of them, thus:
1. Ignorantia legis non excusat - Ignorance of the law excuses no one.
2. Dura lex sed lex - The law may be harsh, but it is still the law.
3. Cessante ratione cessat ipsa lex - When the reason for the law ceases, the law also ceases to exist.
 4. Sic utere tuo ut alienum non laedas - The owner of a thing cannot make use thereof in such manner as to
injure the rights of a third person. (Art. 431, NCC)
5. Patria potesta - Parental authority
6. Negotiorum gestio - Unauthorized management
7. Res perit domino - The thing perishes with the owner
8. Jus possidendi - The right to possess
9. Jus abutendi - The right to abuse
10. Jus utendi - The right to use
11. Jus fruendi - The right to the fruits
12. Jus disponendi - The right to dispose
13. Jus vendicandi - The right to recover
14. Nulla poena sine lege - There is no crime when there is no law punishing it
15. Salus populi est supreme lex - The welfare of the people shall be the supreme law.
16. Caveat emptor - Buyers beware
17. Solutio indebiti - Unjust enrichment
18. Aedificum solo credit - The building follows the land
19. Accessorium siquitur principale - Land is always principal; and
20. Nullum tempus occurit regi - Time runs not against the sovereign.
Modern laws and concepts of persons and family relations, paternal authority, marriage, divorce, concubinage,
legitimation, emancipation, adoption, guardianship, property, avulsion, alluvion, traditio brevi manu, traditio longa manu,
constitutum possessorium, obligations and contracts, nominate and innominate contracts, sale, lease, agency, pledge,
deposits, wills and successions, quasi-delicts, quasi-contracts, negotiorum gestio, solutio indebiti and many others are
Roman in origin. Notwithstanding the modifications and the enormous improvements that have been made, the
Philippines and its citizens cannot remove the great influence that Roman las still exert in our day-to-day life, whether it is
in the city or in the remote barrio, The same thing is true to the rest of the world affected by the Roman legal system.
Roman law is of enormous value to modern nations. It is at hand, ready for use and able to shed light in the
solution of the numerous complex problems which confront the moder civilized world. (Sherman, Sec. 6)
Roman legal literature is also noted for originality. The style of Roman jurists is simple, clear, brief, and precise.
Hence, its study helps students of law in acquiring a correct style of legal expression.

COMMON LAW
Common law is derived from case law and books of authority. It is an unwritten law which does not emanate from
the express will of the legislature. Rather, it is founded on maxims, rules and principles derived from time-honored usages
and customs which received acceptance from the courts of law.
This legal system has prevailed and is still prevailing in England, Ireland, Australia, Wales, New Zealand, Canada
and in the United States.

MOHAMMEDAN LAW
Mohammedan law is not strange in the Philippines for it has been and is still being observed by Muslims in
Mindanao provided it does not conflict with the general law of the land. It is derived principally from the Koran and from
writings of Islamic jurists. The teachings of Mohammed also serve as source of this legal system.Islamic countries who
believes in Allah and his prophet Mohammed still observe this legal system. Some of these countries are Iran,
Afghanistan,Malaysia, Indonesia, Turkey, those in Africa and others.

BLENDING OF LEGAL SYSTEMS IN THE PHILIPPINES

The three legal systems have met and blended into one legal system in the Philippines. Our New Civil Code is
basically Roman in origin. Our procedural laws are still being observed by Filipino Muslims insofar as they do not
conflict with the general laws of the land.
CHAPTER III

LAW AND ITS APPLICATION

COURT’S DUTY TO DECIDE EVERY CASE

A judge cannot decline to render judgment by reason of the silence, obscurity, or insufficiency of the laws. (Art.
9, NCC) In other words, he must decide the case assigned to him whether or not he knows what law shall be applied. In
case of silence, obscurity or insufficiency of the laws, a judge may still be guided by the following:
1. Customs which are not contrary to law, public order or public policy;
2. Court decisions, foreign or local, in similar cases;
3. Legal opinions of qualified writers and professors;
4. General principles of justice and equity; and
5. Rules of statutory construction.
 In criminal cases, however, it is an established rule that there is no crime when there is no law punishing it - Nulla
Poena Sine Lege. If there is no law, therefore, which punishes an act complained of, the judge must dismiss the case.
INTERPRETATION OF LAWS
It is the duty of the judge to apply the law without fear or favor. In case of doubt in the interpretation or
application of the laws, it is presumed that the lawmaking body intended right and justice to prevail.(Art. 10, NCC)
There are many rules of statutory construction but in order not to saddle and confuse the beginner in the study of
law, it is enough in the meantime to know the most basic rules, namely:
1. When the law and its meaning is clear and unmistakable, there is no need to interpret it any further;
2. When construction or interpretation is necessary, the court should interpret the law according to the meaning the
legislature intended to give it;
3. If there are two possible interpretations of a law, that which will achieve the ends desired by Congress should be
adopted;
4. Laws of pleading, practice and procedure are likely liberally construed in order to promote their object and to
assist the parties in obtaining just, speedy and inexpensive determination of every action and proceeding; and
5. In case of doubt in the interpretation and application of laws and when all other rules of statutory construction
fail, it is presumed that the lawmaking body intended right and justice to prevail.
APPLICATION OF THE LAWS
In applying the law, the court should discover the real intent and purpose of the legislature. If the intent and
purpose can be discovered within the law, it is the duty of the court to carry out that intention.
If the same cannot be discovered within the law, the court shall be guided by extrinsic aids.
STATUTORY CONSTRUCTION, ITS CONCEPT, PURPOSE, AND EFFECT
Statutory Construction, defined.
Statutory construction is the act or process of discovering and expounding the meaning and intention of the
authors of the law with respect to its application to a given case, where that intention is rendered doubtful, among others,
by reason of the fact that the given case is not explicitly provided for in the law. (Caltex [Philippines], Inc. v. Palomar, L-
19650, Sept. 29, 1966, 18 SCRA 247)
CONSTRUCTION DISTINGUISHED FROM INTERPRETATION
Construction and interpretation have the same purpose and that is to ascertain and give effect to the legislative
intent. A distinction, however, has been drawn between construction and interpretation. One who interprets makes use of
intrinsic aids or those found in the statute itself, while one who constructs makes use of extrinsic aids or those found
outside of the written language of the law. Based on this distinction, the basic rule therefore is - ONE MUST
INTERPRET FIRST BEFORE HE CONSTRUES.
INTRINSIC AIDS DISTINGUISHED FROM EXTRINSIC AIDS
Intrinsic aids are any of the following: title, preamble, words, phrases, and sentences context; punctuation;
headings and marginal notes; and legislative definitions and interpretation clauses. All of these are found in the law itself.
Extrinsic aids may consist of contemporaneous circumstances, policy, legislative history of the statute,
contemporaneous practical construction, executive construction, legislative construction, judicial construction, and
construction by the bar and legal commentators.
PURPOSE OF INTERPRETATION AND CONSTRUCTION
Interpretation and construction have the same purpose and that is to ascertain and give effect to the legislative
intent.
WHO INTERPRETS THE LAW AND WHO DETERMINES LEGISLATIVE INTENT?
Anyone can interpret the law. Lawyers, policemen, arbiters, administrative boards and agencies, government as
well as private executives are involved from time to time in the interpretation of laws. Their interpretation, however, is not
necessarily conclusive nor can they bind the courts. Hence, in many occasions, the decisions of regulatory boards and
administrative agencies have been elevated and appealed to the Supreme Court in cases where there is abuse of discretion
and authority or when there is violation of due process or denial of substantial justice or erroneous interpretation of the
law. (Mantrade FMMC Division Employees and Workers Union v. Bacungan, G.R. No. 48437, Sept. 30, 1986, Second
Division, Feria, J.)
The Judiciary has the delicate task of ascertaining the significance of a constitutional or statutory provision, and
executive order, a procedural or a municipal ordinance. It discharges a role no crucial than the roles played by the two
other departments in maintaining the rule of law. To assure stability in legal relations and avoid confusion, it has to speak
with one voice. Logically and rightly, it does so with finality through the highest judicial organ, the Supreme Court. What
it says is definite and authoritative, binding on those who occupy the lower ranks in the judicial hierarchy. (Conde v.
Intermediate Appellate Court, G.R. No. 70443, Sept. 15, 1986, Second Division, Gutierrez, Jr., J.)
WHICH PREVAILS - THE LETTER OF THE LAW OR THE SPIRIT OF THE LAW?
What the language of the law is clear and unequivocal, the court’s duty is to apply it, not to interpret it. The
Supreme Court, in the case of Chartered Bank Employees Association v. Ople, G.R. No. 44747, Aug. 28, 1985, restated
the said rule in more elaborate language. It said, “If the language of the law is clear and unequivocal, then read the law to
mean exactly what it says. If not, look for the intention of the legislature.”
AIDS IN INTERPRETATION AND CONSTRUCTION
I. USE OF INTRINSIC AIDS BEFORE RESORTING TO EXTRINSIC AIDS
In determining the intention of the legislature, courts should resort first to intrinsic aids before
resorting to extrinsic aids.
1. TITLE - That which expresses the subject matter of the law. It can help in the construction of statutes,
but it is not controlling and not entitled to much weight.
2. PREAMBLE - That part of the statute following the title and preceding the enacting clause which states
the reasons or the objectives of the enactment.
3. WORDS, PHRASES, AND SENTENCES CONTEXT - The intention of the legislature must primarily
be determined from the language of the statute and such language consists of the words, phrases and
sentences used therein.The meaning of the law should, however, be taken from the general consideration
of the act as a whole and not from any single part, portion or section or from isolated words and phrases,
clauses or sentences used.
4. PUNCTUATION - It is an aid of low degree in interpreting the language of a statute and can never
control against the intelligible meaning of the written word. However, if the punctuation of the statute
gives it a meaning which is reasonable and in apparent accord with the legislative will, it may be used as
an additional argument for adopting the literal meaning of the words thus punctuated.
5. HEADINGS AND MARGINAL NOTES - If the meaning of the statute is clear or if the text of the
statute is clear they will prevail as against the headings, especially if the headings have been prepared by
compilers and not by the legislature.
6. LEGISLATIVE DEFINITION AND INTERPRETATION - If the legislature has defined the words
used in the statute and has declared the construction to be placed thereon, such definition or construction
should be followed by the courts. The rules are as follows:
a. If a law provides that in case of doubt it should be construed or interpreted in a certain manner,
the courts should follow such instruction.
b. In case of conflict between the interpretation clauses and the legislative meaning, as revealed by
the statute considered in its totality, the latter should prevail.
c. A term used throughout the statute in the same sense in which it is first defined.
d. Legislative definition of similar terms in other statutes may be resorted to, EXCEPT where a
particular law expressly declares that its definition therein is limited in application to the statutes
in which they appear.

II. EXTRINSIC AIDS

Extrinsic Aids are the following: (1) contemporaneous circumstances; (2) policy; (3) Legislative
history of the statute; (4) contemporaneous or practical construction; (5) executive construction; (6)
legislative construction; (7) judicial construction; and (8) construction by the bar and legal commentators.
Extrinsic aids can be resorted to only after the intrinsic aids have been used and exhausted.
1. CONTEMPORANEOUS CIRCUMSTANCES - These are the conditions existing at the time the law
was enacted:
a. History of the times and conditions existing at the time the law was enacted;
b. Previous state of the law;
c. The evils sought to be remedied or corrected by the law; and
d. The customs and usages of the people.
2. POLICY - The general policy of the law or the settled policy of the State may enlighten the interpreter of
the law as to the intention of the legislature in enacting the same. Hence, if a new agrarian law is enacted
today and few years from now, there will arise the need to find out why such a law is enacted, the
conditions, the prevailing sentiment of the people, the policy of the State and the executive order issued
by the Office of the President preceding the legislative enactment will throw light upon the intention of
the legislature in enacting said law. The same thing is true if death sentence is imposed for drug pushers
and for those currently involved in the so-called “satanism” offenses. The conditions of the times and the
very destructive and heinous crimes committed even in broad daylight, whether in the city or in the
provinces, will convince future interpreters of the law that such a penalty is needed to protect society.
3. LEGISLATIVE HISTORY OF THE STATUTE - Such history may be found in reports of legislative
committee, in the transcript of stenographic notes taken during a hearing, legislative investigation, or
legislative debates.
4. CONTEMPORANEOUS AND PRACTICAL CONSTRUCTION - Those who lived at or near the
time when the law was passed were more acquainted with the conditions and the reasons why that law
was enacted. Their understanding and application of the law, especially if the same has been continued
and acquiesced by the judicial tribunals and the legal profession, deserve to be considered by the courts.
5. EXECUTIVE CONSTRUCTION - The construction given by the executive department deserves great
weight and should be respected if said construction has been formed and observed for a long period of
time.
6. LEGISLATIVE CONSTRUCTION - Legislative construction is entitled to consideration and great
weight but it cannot control as against the court’s prerogative to decide on what is the right or wrong
interpretation.
7. JUDICIAL CONSTRUCTION - It is presumed that the legislature was acquainted with and had in mind
the judicial construction of former statutes on the subject. It is also presumed that the statute was enacted
in the light of the judicial construction that the prior enactment had received. With respect to a statute
 adopted from another state, it is presumed that it was adopted with the construction placed upon it by
courts of that state.
8. CONSTRUCTION BY THE BAR AND LEGAL COMMENTATORS - It is presumed that the
meaning publicly given a statute by the members of the legal profession is a true one regarded as one that
should not be lightly changed. (50 Am Jur, p. 312) The opinion and commentaries of text writers and
legal commentators, whether they are Filipinos or foreigners, may also be consulted as, in fact, they are
oftentimes cited or made as references in court decisions.

SIMPLIFICATION OF THE RULE REGARDING THE USE OF EXTRINSIC AIDS

Extrinsic aids, such as those mentioned above, are entitled to respect, consideration and weight but the courts are
at liberty to decide whether they are applicable or not to the case brought to it for decision.

Chapter IV

THE LEGAL PROFESSION AND THE QUALIFICATIONS AND PROCEDURE FOR ADMISSION TO THE
PRACTICE OF LAW

FIRST REQUIREMENT (Before Admission to the Bar)

He should first be admitted to the bar. This requirement is accomplished by complying with the following
requirements (Sec.2 in relation to Secs. 5,6, and 14, Rule 138, ROC):
a. Citizenship – He must be a citizen of the Philippines;
b. Age – He must at least be twenty-one (21) years of age;
c. Residence – He must be a resident of the Philippines;
d. Education Qualification
i He must have completed a four-year high school course which is a prerequisite to a bachelor’s degree in
arts and sciences;
ii He must have completed a bachelor’s degree with any of the following subjects as a major field of
concentration:
1. Political Science
2. Logic
3. English
4. Spanish
5. History
6. Economics
iii He must have completed a Bachelor of Law degree in a law school or university approved and recognized
by the Secretary of Education.
e. Moral and other Qualifications – He must be of good moral character, and that no charges against him
involving moral turpitude have been filed or are pending in any court in the Philippines.
f. Bar Examination – He must pass the Bar Examinations.
III.In order that a candidate may be deemed to have passed his examinations successfully, he must have
obtained a general average of 75% in any subject. In determining the average, the subjects in the
examination shall be given the following relative weights: Civil Law, 15%; Labor and Social Legislation,
10%; Political and International Law, 15%; Taxation, 10%; Remedial Law, 20%; Legal Ethics and
Practical Exercises, 5%.
g. Oath – He must take the lawyer’s oath before the Supreme Court itself. (Secs. 17, Rule 138, ROC)
h. Attorney’s Roll – He must sign the roll of attorneys and receive from the Clerk of Court of the Supreme Court a
certificate of the license to practice. (Secs. 18 and 19, Rule 138, ROC)

SECOND REQUIREMENT (After Admission to the Bar)

The lawyer must remain in good and regular standing. This requires the following:
(a) He must be a member of the IBP (Integrated Bar of the Philippines);
(b) He must regularly pay all IBP membership dues and other lawful assessment;
(c) He must observe faithfully the rules and ethics of the profession; and
(d) He should be subject to judicial disciplinary control,

PURPOSE OF IMPOSING SAID REQUIREMENTS

The said requirements are imposed to see to it that those who are admitted to the practice of law are mentally and
morally fit to discharge their duties to their clients, to the courts, and to the public in general.

PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

Anyone who desires to be admitted to the practice of law should pass the Bar Examinations conducted by a
committee of bar examiners appointed by the Supreme Court.
Examinations for admission to the Bar of the Philippines shall take place annually in the City of Manila. They
shall be held in four days to be designated by the Chairman of the committees on bar examiners. The subjects shall be
distributed as follows:
First day: Political and International Law (morning) and Labor and Social Legislation (afternoon);
Second day: Civil Law (morning) and Taxation (afternoon);
Third day: Mercantile Law (morning) and Criminal Law (afternoon);
Fourth day: Remedial Law (morning) and Legal Ethics and Practical Exercises (afternoon). (Secs. 8 and 11, Rule
38, ROC)
PRACTICE OF LAW IS MORE OF A PRIVILEGE THAN A RIGHT
The practice of law is not a matter of right. It is a privilege accorded only to those who measure up to certain rigid
standards of mental and moral fitness. Anyone who is granted the said privilege is expected to maintain the said rigid
standards.
In three separate cases, the Supreme Court made the following statements:

Tan v. Sabandal, B.M. No. 44

Bequia v. Sabandal, SBC 66, Feb. 24, 1992
Melencio-Herrera, J.
“The practice of law is not a matter of right. It is a privilege bestowed upon individuals who are not learned in the law but
who are also known to possess good moral character.”

Legarda v. Court of Appeals

G.R. No. 94457, June 10, 1992
En Banc, Per Curiam
“Lawyers are indispensable part of the whole system of administering justice in this jurisdiction. At a time when strong
and disturbing criticisms are being hurled at the legal profession, strict compliance with one’s oath of office and the
Canons of Professional Ethics is imperative.”

“Lawyers should be fair, honest, respectable, above suspicion and beyond reproach in dealing with their clients. The
profession is not synonymous with an ordinary business profession. It is a matter of public interest.”

WHAT IS PRACTICE OF LAW?

In Cayetano v. Monsod, G.R. No. 100113, Sept. 31, 1991, the Supreme Court held that engaging in law practice is
not only confined to courtroom practice. It includes any activity which requires application of law or knowledge of the
law, whether said activity takes place in or outside of the courtrooms. Hence, 10 years of work experience as lawyer-
manager, lawyer-negotiator of contracts, lawyer-economist, or lawyer-entrepreneur is considered as within the meaning of
the phrase “practice of law.”

ALTHOUGH PRACTICE OF LAW IS MORE OF A PRIVILEGE THAN A RIGHT, IT BECOMES A RIGHT

FROM THE TIME A PERSON IS ADMITTED TO THE BAR.
From a time a person is admitted to the bar, he cannot be prevented from practicing law except when there are
valid reasons that will prevent him or her from practicing law.

PRACTICE OF LAW IS A PROFESSION AND NOT A BUSINESS

Law advocacy is not a capital that yields profits. The returns it gives birth to are simple rewards for job done or
service rendered. It is a calling that, unlike mercantile pursuits which enjoy a greater deal of freedom from government
interference, is impressed with public interest, for which it is subject to State regulation.
Membership in the legal profession is achieved only after a long and laborious study. By years of patience, zeal,
and ability, the attorney acquires a fixed means of support for himself and his family. This is not to say, however, that the
emphasis is on the pecuniary value of his profession but rather on the social prestige and intellectual standing necessarily
arising from and attached to the same person of the fact that everyone is deemed an officer of the court.
On the one hand, the profession of an attorney is of great importance to an individual and the prosperity of his life
may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other
hand, it is extremely desirable that the respectability of the Bar should be maintained and that its harmony with the Bench
should be preserved. For these objects, some controlling power, some moderation, and judgment, must be exercised.

THE DUTIES OF A LAWYER

The lawyer has the following duties:
1. To maintain allegiance to the Republic of the Philippines and to support the Constitution and obey the laws of
the Philippines;
2. To observe and maintain the respect due to the courts of justice and judicial officers;
3. To counsel or maintain such actions or proceedings only as appear to him to be just, and such defense only as
he believes to be honestly debatable under the law;
4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with
truth and honor, and never seek to mislead the judge or any judicial officer by an artifice or false statement of
fact or law;
5. To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to
accept no compensation in connection with his client’s business except from him or with his knowledge and
approval;
6. To abstain from all offensive personality and to advance no fact prejudicial to the honor or reputation of a
party of witness, unless required by the justice of the cause with which he is charged.
7. Not to encourage either the commencement or the continuance of an action or proceeding, or delay any man’s
cause, from any corrupt motive or interest;
8. Never to reject, for any consideration personal to himself, the cause of the defenseless or oppressed; and
9. In the defense of a person accused of a crime, by all fair and honorable means, regardless of his personal
opinion as to the guilt of the accused, to present every defense that the law permits to the end that no person
may be deprived of life or liberty, but by due process of law.

LAWYER’S COMPENSATION
 An attorney shall be entitled to have and recover from his client not more than a reasonable compensation for his
services, with a view of the importance of the subject matter of the controversy, the extent of the services rendered, and
the professional standing of the attorney. No court shall be bound by the opinion of attorneys as expert witnesses as to the
proper compensation, but may disregard such testimony and base its conclusion on its own professional knowledge. A
written contract for services shall control the amount to be paid therefore unless found by the court to be unconscionable
or unreasonable.

DISCIPLINARY POWER OVER ATTORNEYS

A member of the bar may be removed or suspended from his office as attorney of the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly immoral conduct, or by reason of his conviction of a
crime involving moral turpitude, or for any violation of the oath which he is required to take before admission to practice,
or for a willful disobedience of any lawful order of a superior court, or for corruptly or willfully appearing as such
attorney for a party to a case without authority to do so. The practice of soliciting cases at law for the purpose of gain,
either personally or through paid agents or brokers, constitutes malpractice.
The Court of Appeals or the Regional Trial Court may suspend an attorney from practice for any of the causes
named in the last preceding section, and after such suspension, such attorney shall not practice his profession until further
action of the Supreme Court in the premises.

INTEGRATED BAR OF THE PHILIPPINES

The Supreme Court ordained the integration of the Philippine Bar on January 16, 1973.
Under the 1987 Constitution, the Supreme Court has the power, among others, to promulgate rules concerning the
Integrated Bar, Article VIII, Section 5 of the 1987 Constitution provides as follows:
“Sec. 5. The Supreme Court shall have the following powers: x x x
‘(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law, the Integrated Bar, x x x.”

INTEGRATION OF THE BAR DEFINED

This is the official unification of all lawyers in the Philippines under one official national organization which is
known and called as INTEGRATED BAR OF THE PHILIPPINES.

LEGAL AND CONSTITUTIONAL BASIS

Section 5(5) of Article VIII of the 1987 Constitution is the constitutional basis.
The legal basis is founded on the principle that – THE INHERENT POWER OF THE SUPREME COURT TO
REGULATE THE BAR INCLUDES THE AUTHORITY TO INTEGRATE THE BAR.

SUPPORTING ARGUMENTS IN SUPPORT OF CONSTITUTIONAL AND LEGALITY

(1) To compel a lawyer to be a member of the Integrated Bar does not violate his constitutional freedom to associate
(or the corollary right not to associate)
(2) Integration does not make a lawyer a member of any group of which he is not already a member. He became a
member of the Bar when he passed the Bar Examinations.
(3) For the court to prescribe dues to be paid by the members does not mean that the Court levies a tax. “A
membership fee in the integrated bar is an exaction for regulation, while the purpose of a tax is revenue. If the
court has the inherent power to regulate the Bar; it follows that as an incident to regulation, it may impose a
membership fee for that purpose. x x x”
(4) The Supreme Court, in order to further the State’s legitimate interest in elevating the quality of professional
services may require that the cost of improving the profession in this fashion be shared by the subjects and
beneficiaries of the regularity program – the lawyers.
(5) And because it is a new regulation in exchange for new benefits, it is not retroactive, it is not unequal, it is not
unfair. (In re: Integration of the Bar of the Philippines, 22 SCRA 22-28-31, 1973; In re: Edilion, A.M. No. 1928,
Aug. 3, 1978)

APPEARANCES AND HANDLING OF CASES IN COURTS

As a rule, only those who are licensed to practice law can appear and handle cases in court. However, this rule is
subject to the following exceptions and limitations:

EXCEPTIONS:
Under Rule 138-A, Revised Rules of Courts, a law student who has successfully completed his third year in law
school and currently enrolled in a recognized law school’s Clinical Legal Education program approved by the Supreme
Court may appear in any civil, criminal, or administrative case to represent indigent clients accepted by the legal clinic.

LIMITATIONS:
1. The appearance of said student in court is subject to supervision and control of a member of IBP duly accredited
by the law school;
2. Any pleading, motion, brief, memoranda, and other papers to be filed must be signed by the supervising attorney
(Secs. 1 and 2 Rule 138, RRC)
3. When a law student appears before the court, he is subject to supervision and control of a member of IBP.
However, such rule shall not apply if the law student appears as non-lawyer before the inferior courts, provided he
is an agent or friend of the party litigant as prescribed by Section 34, Rule 138 of the RRC.
4. It is required that the supervising lawyer should be physically present during the hearing.

CAN NON-LAWYERS APPEAR IN COURTS?

As a rule, a non-lawyer who practices law will be guilty of illegal practice of law.
However, this rule is subject to the following exceptions and limitations:
 1. In cases before the MTC, a party may conduct his litigation in person, with the aid of an agent or friend
appointed by him.
2. In cases before any court, a party may conduct his litigation personally, provided that if he decided to get
a person to assist him, that someone must be an authorized member of the Bar.
3. If he appears personally, he is bound by the same rules in conducting the trial of his case. He cannot after
judgment, claim that he was not properly represented by counsel.
4. In a criminal case before the MTC, and in a locality where a duly licensed member of the Bar is not
available, the judge may appoint a non-lawyer who is: (a) a resident of the province; and (b) of good
repute for probity and ability to aid the accused in his defense.

CAN NON-LAWYERS APPEAR IN THE NLRC OR BEFORE THE LABOR ARBITER?

They may if they represent themselves as party to the case; if they represent a labor organization which is party to
the case; if they represent a member or members of a legitimate labor organization that is existing within the employer’s
establishment who are parties to the case; if they are duly accredited members of any legal aid office and duly recognized
by the DOJ or the IBP in cases referred to by the latter; if the non-lawyer is the owner or president of a corporation or
establishment which is a party to the case. (Sec. 6[6] 2011, NLRC Rules of Procedures)

WHO ARE PROHIBITED FROM ENGAGING IN THE PRACTICE OF LAW?

(1) Those who do not possess the qualifications for admission to the bar and have not complied with the
requirements to practice law are prohibited to practice law;
(2) A lawyer who is disbarred unless readmitted, is prohibited to practice law;
(3) Those who are suspended are prohibited to practice law during the period of their suspension.

WHAT ARE THE SANCTIONS FOR PRACTICE OR APPEARANCE WITHOUT AUTHORITY?

They are subject to any of the following sanctions:
21. Lawyers without authority
An attorney willfully appearing to court for a person without being employed, unless by leave by the court,
may be punished for contempt as an officer of the court who has misbehaved in his official transaction.
(Section 21, Rule 138, RRC)
 Attorneys who are suspended or disbarred but continues to engage in the practice of law are liable for
contempt of court, punishable by fine or imprisonment or both upon the discretion of the court. He is
also held liable although he acted as an agent of a litigant or the circumstances provides that he holds
himself out as a lawyer in association, since he cannot do indirectly, what he cannot do directly.
 A lawyer may also be disciplined, suspended or disbarred for misconduct as an officer of the court, if
in his capacity he makes possible the illegal practice of law by a layman.
 A government attorney who engages in the private practice of law without the written permit of his
immediate superior may be administratively liable.
22. Persons not Lawyers
A person may be punished for indirect contempt for assuming to be an attorney and acting as such without
authority. (See. 3[e], Rule 71, RRC)
 If a person’s unauthorized practice of law resulted to damage to another party, the former may
likewise be liable for estafa. This situation is regardless of success in managing the litigation by the
said person.

Chapter V

CODE OF PROFESSIONAL RESPONSIBILITY

THE CODE OF PROFESSIONAL RESPONSIBILITY IS BINIDING UPONG ALL LAWYERS

The Code has twenty-two (22) Canons, thus:

Canon 1 A lawyer shall uphold the constitution, obey the laws of the land, and
promote respect for law and for legal processes.
Canon 2 A lawyer shall make his legal services available in an efficient and
convenient manner compatible with the independence, integrity, and
effectiveness of the profession.
Canon 3 A lawyer in making known his legal services shall use only true, honest, fair,
dignified, and objective information or statement of facts.
Canon 4 A lawyer shall participate in the improvement of the legal system by
initiating or supporting efforts in law reform and in the improvement of the
administration of justice.
Canon 5 A lawyer shall keep abreast of legal developments, participate in continuing
legal education programs, support efforts to achieve high standards in law
schools as well as in the practical training of law students and assist in
disseminating information regarding the law and jurisprudence.
Canon 6 These canons shall apply to lawyers in government service in the discharge of
their official tasks.
Canon 7 A lawyer shall at all times uphold the integrity and dignity of the legal
profession and support the activities of the integrated bar.
Canon 8 A lawyer shall conduct himself with courtesy, fairness, and candor toward his
professional colleagues, and shall avoid harassing tactics against opposing
 counsel.
Canon 9 A lawyer shall not, directly, or indirectly, assist in the unauthorized practice
of law.
Canon 10 A lawyer owes candor, fairness, and good faith to the court.
Canon 11 A lawyer shall observe and maintain the respect due to the courts and to
judicial officers and should insist on similar conduct by others.
Canon 12 A lawyer shall exert every effort and consider it his duty to assist in the
speedy and efficient administration of justice.
Canon 13 A lawyer shall rely upon the merits of his cause and refrain from any
impropriety which tends to influence or gives the appearance of influencing
the court.
Canon 14 A lawyer shall not refuse his services to the needy.
Canon 15 A lawyer shall observe candor, fairness, and loyalty to all his dealings and
transactions with his client.
Canon 16 A lawyer shall hold in trust all moneys and properties of his client that may
come into his possession.
Canon 17 A lawyer owes fidelity to the cause of his client and he shall be mindful of
the trust and confidence reposed in him.
Canon 18 A lawyer shall serve his client with competence and diligence.
Canon 19 A lawyer shall represent his client with zeal within the bounds of the law.
Canon 20 A lawyer shall charge only fair and reasonable fees.
Canon 21 A lawyer shall preserve the confidences and secrets of his client even after
the attorney-client relation is terminated.
Canon 22 A lawyer shall withdraw his services only for good cause and upon notice
appropriate in the circumstances.

GOOD MORAL CHARACTER IS THE CORNERSTONE OF THE CODE OF PROFESSIONAL

RESPONSIBILITY
BASIS:
6. Rule 138, Section 2, Revised Rules of Court
7. Canon 1, Rule 1.01
They provide as follows:
Rule 138, Sec. 2.
“Section 2. Requirements for all applicants for admission to the Bar. – Every applicant for admission as a member of
the bar must be citizen of the Philippines, at least twenty-one (21) years of age, of good moral character, and a
resident of the Philippines; and must produce before the Supreme Court satisfactory evidence of good moral character
and that no charges against him, involving moral turpitude, have been filed or are pending in any court in the
Philippines.”

Canon 1, Rule 1.01

“Canon 1. A lawyer shall uphold the constitution, obey the laws of the land and promote respect for law and for legal
processes.”
“Rule 1.01. A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.”

TO GIVE TEETH TO RULE 138, THE REVISED RULES OF COURT PROVIDES THE FOLLOWING IN
RULE 138, SECTION 27, THUS:
“Section 27, Attorneys removed or suspended by Supreme Court on what grounds. – A member of the bar may be
removed or suspended from his office as attorney by the Supreme Court for any deceit, malpractice, or other gross
misconduct in such office, grossly immoral conduct, or by reason of his conviction of a crime involving moral turpitude,
or for any violation of the oath which he is required to take before the admission to practice, or for a willful disobedience
of any lawful order of a superior court, or for corruptly or willfully appearing as an attorney for a party to a case without
authority to do so. The practice of soliciting cases at law for the purpose of gain, either personally or through paid agents
or brokers, constitutes malpractice.”

GOOD MORAL CHARACTER IS NOT ONLY A REQUISITE TO ADMISSION TO THE PRACTICE OF

LAW, BUT IT ALSO A CONTINUING CONDITION TO REMAIN AS A MEMBER OF THE LEGAL
PROFESSION
It is a continuing requisite and condition for a lawyer to remain as member of the legal profession for they are
always required to conform to the highest standards of morality. At any time, or when a lawyer commits a wrongdoing
which indicates the moral unfitness for the profession, whether it be professional or non-professional, justifies disciplinary
action.

THE REQUIREMENT OF GOOD MORAL CHARACTER HAS THREE OSTENSIBLE PURPOSES

These purposes are:
1. To protect the public;
2. To protect the public image of lawyers; and
3. To protect prospective clients

WHAT IS THE CONCEPT OF GOOD MORAL CHARACTER?

There is no exact definition of the term “good moral character.” It has been held that moral character is what a
person really is, as distinguished from good reputation or from the opinion generally entertained of him, the estimate in
which he is held by the public in the place where he is known. Moral character is not a subjective term but one which
corresponds to objective reality. The standard of personal and professional integrity is not satisfied by such conduct as
merely entitles the person to escape the penalty of criminal law. Good character includes at least common humility.
The requirement of good character is of much greater import, as far as the general public is concerned, than the
possession of the legal learning. Lawyers are expected to abide by the tenets of morality, not only upon admission to the
Bar but also throughout their legal career, in order to maintain one’s good standing in that exclusive and honored
fraternity. Good moral character is more than just the absence of bad character. Such character expresses itself in the will
to do the unpleasant thing if it is right, and the resolve not to do the pleasant thing if it is wrong. This must be so because
“vast interests are committed to his care; he is the recipient of unbounded trust and confidence he deals with the client’s
property, reputation, his life, his all.” (Cordon v. Balicanta, A.C. No. 2797, Oct. 4, 2002)

DISBARMENT AND DISCIPLINE OF ATTORNEYS; HOW IS THIS CONSTITUTED?

SECTION 1 (RULE 139-B) – Proceedings for the disbarment, suspension or discipline of attorneys may be
taken by the Supreme Court motu proprio, or by the Integrated Bar of the Philippines (IBP) upon the verified complaint of
any person. The complaint shall state clearly and concisely the facts complained of, and shall be supported by affidavits of
persons having personal knowledge of the facts therein alleged and/or by such documents as may substantiate said facts.
The IBP Board of Governors may, motu proprio or upon referral by the Supreme Court or by a Chapter Board of
Officers, or at the instance of any person, initiate and prosecute proper charges against erring attorneys including in the
government service.
Six copies of the verified complaint shall be filed with the Secretary of any of its chapters who shall forthwith
transmit the same to the IBP Board of Governors for assignment to an investigator.
LEOPOLDO V. CREDITO, ET AL. v.
ATTY. SALVADOR T. SABIO
A.C. No. 4920, October 19, 2005
FACTS:
The labor arbiter ordered the reinstatement of the employee/laborers of Binalbagan Isabela Sugar Company
(Biscom) and awarded to them the amount of P9,679,133.38 as total backwages.
The NLRC reversed the said decision which prompted the complainants, led by Credito, to ask Atty. Salvador T.
Sabio, to file a petition for certiorari with the Supreme Court. Complainants collected amounts from members ranging
from P30 to P100 each to defray the expenses in filing the petition.
However, the Court dismissed the petition of March 2, 1992, for failure to pay the proper docket and filing fees
and for lack of the required certification against forum shopping. Respondent allegedly did not tell petitioners of the
dismissal for three years.
Complainants sought the disbarment of respondent for negligence of duties. The matter was referred to the IBP,
which initially found respondent guilty of simple negligence and illegal and unjust actuations as a practicing lawyer for
which the penalty of two-year suspension was recommended. The IBP Board of Directors reduced the penalty to a
“warning” that a similar offense in the future would be dealt with more severely.

HELD:
1. Canon 17 of the Code of Professional Responsibility provides that lawyers owe fidelity to the cause of their
clients and must therefore be always mindful of the trust and confidence reposed in them. Under Canon 18, they
are mandated to serve their clients with competence and diligence. Specifically, they are not to “neglect a legal
matter entrusted to (them), and (their) negligence in connection therewith shall render (them) liable.”
Additionally, they are required to keep their clients informed of the status of the latter’s cases and to respond
within a reasonable time to request for information. Even before joining the Bar, lawyers subscribe to an oath to
conduct themselves “with all good fidelity as well to the courts as to their clients.”
2. The dismissal of complainants’ petition before the Supreme Court was due to the failure of respondent to pay the
total revised docket and other legal fees as well as to attach the required certification on forum shopping. He
attempted to rectify those procedural lapses by filing a Motion for Reconsideration. Nonetheless, there is no
denying that a normally prudent practitioner could and should not have left unattended, especially when the rights
sought to be protected were those of the underprivileged like the present complainants.
3. Lawyers engaged to represent clients in a case bear the responsibility of protecting the latter’s interest with
warmth, zeal and utmost diligence. They must constantly keep in mind that their actions or omissions would be
binding on the clients.
4. In Garcia v. Atty. Manuel, bad faith was ascribed to a lawyer for failing to inform the client of the status of a case.
In view of their highly fiduciary relationship with their counsel, clients have every reason to expect from the
former periodic and full updates on case developments.

DISPOSTION:
Atty. Sabio was found guilty of violating Canons 17 and 18 of the Canons of Professional Responsibility and for
which he was SUSPENDED from the practice of law for one year effective upon receipt of decision, with stern warning
that similar acts in the future will be dealt with more severely.

CHAPTER VI

PERSONS

CONCEPT OF A PERSON

In Roman law, a person is one who is capable to exercise ownership and legal rights and to incur and contract
obligations. Under this concept, a slave is not considered a person he being merely regarded the nas a chattel, a thing that
can be sold or disposed of at the discretion of the master. Hence, a slave does not have the legal capacity to exercise
ownership and to incur and contract obligations.
 The old and the new Constitutions of the Philippines, on the other hand, guarantee equal protection of the laws
and this means that no persons or class of person, whether rich or poor and regardless of his religious belief and political
persuasion, shall be denied the same protection of the laws which is enjoyed by other persons or other classes of persons
in the same place and in like circumstances. Special favor or privilege for any individual or class is prohibited (Sec. 1, Art.
III, 1987 Constitution)
Under the New civil Code, a person may be a natural or a juridical person. A natural person refers to a human
being and a juridical person refers to any of the following:

7. The state and its political subdivision;

8. Other corporations, institutions and entities for public interest or purposes, created by law;
9. Corporations, partnerships and associations for private interest or purpose to which the law grants a
juridical personality, separate and distinct from that of each shareholder, partner or member. (Art. 44,
NCC)

CAPACITY
In Roman law, legal capacity is referred to as full proprietary capacity. To have this kind of capacity, a human
being must be free, a citizen and a sui juris. The capacity already acquired and being enjoyed may be lost or diminished.
The degree of diminution may either be MAXIMA or MEDIA or MINIMA
Under the New Civil Code, a person has full or complete civil capacity if he has juridical capacity and capacity to
act. Juridical capacity is the fitness to be the subject of legal relations. Capacity to act is the power to do acts with legal
effect.
Article 37 of the New Civil Code provides as follows:
“Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and
is lost through death. Capacity to act, which is the power to do acts with legal effect is acquired and may be lost.”
Capacity to act, unlike juridical capacity, may be restricted or limited. The restrictions are those mentioned in
Article 38 of the New Civil Code, to wit:

CODE: MISPC
M - Minority
I - Insanity
S - State of being deaf-mute
P - Prodigality
C - Civil Interdiction

WHEN DOES THE PERSONALITY OF A NATURAL PERSON BEGIN?

Personality of a natural person begins at conception (not at birth) provided that birth should occur later. This is on
the basis of Article 40 of the New Civil Code which provides as follows:
“Art. 40. Birth determines personality but the conceived child shall be considered born for all purposes that are
favorable to it, provided it be born later with the conditions specified in the following article.”

WHEN DOES THE PERSONALITY OF A PRIVATE CORPORATION (PRIVATE JURIDICAL PERSON)

BEGIN?
It begins from the moment a certificate of incorporation is granted to it by the Securities and Exchange
Commission. From this moment, it has a personality separate and distinct from its stockholders.

WHEN IS A FETUS CONSIDERED BORN?

Article 41 answers this question. It says: “For civil purposes, the fetus is considered born if it is alive at the time it
is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months,
it is not deemed born if it dies within twenty-four hours after his complete delivery from the maternal womb.”
Under Articles 40 and 41 therefore, a conceived child can be a recipient of a donation provided it is favorable to
him. This means that if the donation is burdensome to the conceived child, the donation is not considered valid.
NOTE:
9. If the fetus had an intra-uterine life of less than seven months, the child must have lived within 24 hours
after its complete delivery from its maternal womb. (Last sentence, Art. 41)
10. If the fetus had an intra-uterine life of at least seven months, it is considered born if it is alive after its
complete delivery from the mother’s womb.

CHAPTER VII
CONCEPT AND NATURE OF MARRIAGE
CONCEPT
The concept of marriage both in Roman Law and in the New Civil Code are fundamentally the same. It is
regarded as a permanent union of a man and a woman. It is only in that sense that the concept is similar for while the
Romans regard marriage as a union of a man and a woman in a lifelong consortium, the New Civil Code came out with a
more strict and conservative concept and definition of marriage. Still later, the New Family Code amended this definition.
DEFINITION OF MARRIAGE
REQUISITES OF A VALID MARRIAGE
Article 52, New Civil Code Article 1, New Family Code
Marriage is not a mere contract but an inviolable Marriage is a special contract, of permanent
social institution. Its nature, consequences, and union, between a man and a woman entered into
incidents are governed by law and not subject to in accordance with law for the establishment of
stipulation except that the marriage settlements conjugal and family life. It is the foundation of the
may, to a certain extent, fix the property relations family and an inviolable social institution whose
during marriage. (n) nature, consequences, and incidents are governed
by law and not subject to stipulation, except that
marriage settlements may fix the property
relations during the marriage within the limits
provided by this code. (52a)
Article 53, New Civil Code Articles 2 and 3, New Family Code
Art. 53. No marriage shall be solemnized unless Art. 2. No marriage shall be valid, unless these
all these requisites are complied with: essential requisites are present:
1. Legal capacity of the contracting parties; 1. Legal capacity of the contracting parties
2. Their consent, freely given; who must be a male and a female; and
3. Authority of the person performing the 2. Consent freely given in the presence of
marriage; and the solemnizing officer. (52a)
4. A marriage license, except in a marriage
of exceptional character. (Sec. 1a, Art. Art. 3. The formal requisites of marriage are:
3613) 23. Authority of the solemnizing officer;
24. A valid marriage license except in the
cases provided for in Chapter 2 of this
Title; and
25. A marriage ceremony which takes
place with the appearance of the
contracting parties before the
solemnizing officer and their personal
declaration that they take each other
as husband and wife in the presence
of not less than two witnesses of legal
age. (53a, 55a)

Hence, unlike an ordinary contract, the parties, both under the New Civil Code and the Family Code, cannot just
terminate their marriage as they wish, for the consequences and incidents of marriage are governed by law. Notaries
Public who draw or execute documents destroying the inviolability of marriage are subject to disciplinary action.
UNDER ARTICLES 2 AND 3 OF THE NEW FAMILY CODE
ESSENTIAL REQUISITES
“Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be male and a female;
(2) Consent freely given in the presence of the solemnizing officer.”
FORMAL REQUISITES
“Art/ 3. The formal requisites of marriage are:
11. Authority of the solemnizing officer;
12. A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
13. A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.” (53a, 55a)
ESSENTIAL REQUISITES
The absence of any of the said essential requisites renders the contract of marriage void ab initio except as may be
provided in Section 35(2) of the Family Code.
Hence, it is required that:
(1) The contracting parties must be a man and a woman who should have the legal capacity to enter into a contract of
marriage. This means that both of them must be at least be 18 years of age, and that they are not legally prohibited
from marrying.
(2) Both of them must give consent to the marriage. It is their consent, not the consent of the parents that is referred
to in Article 2(1)
FORMAL REQUISITES
ABSENCE OF LEGAL AUTHORITY OF THE SOLEMNIZING OFFICER TO SOLEMNIZE MARRIAGE
ABSENCE OF MARRIAGE LICENSE
Renders the marriage void except when the marriage is contracted with either or both parties believing in good
faith at the time of the marriage that the solemnizing officer had the legal authority to do so.
RENDERS THE MARRIAGE VOID
A marriage ceremony must publicly take place under said conditions but the marriage ceremony may be
solemnized elsewhere in the following cases:
 10. In case of marriages contracted at the point of death (articulo mortis);
11. In case of marriages in remote places; or
12. In case both parties requested the solemnizing officer in writing to that effect. (Art. 8, FC)
EFFECTS OF THE FOLLOWING:
1. Absence of any of essential or formal requisites;
2. Defects in any of the essential requisites; and
3. Irregularity in the formal requisites
REQUIREMENTS IF ANY OR BOTH OF THE CONTRACTING PARTIES ARE BETWEEN 18 AND 21
YEARS OLD AND IF ANY OR BOTH ARE NOT EMANCIPATED BY MARRIAGE

Absence of Any of the Defects in Any of the Essential Irregularity in the Formal
Essential or Formal Requisites Requisites Requisites
It shall render the marriage void It shall render the marriage It shall not affect the validity of
ab initio except as stated in voidable as provided in Article the marriage but the party or
Article 35(2) 45 parties responsible for the
irregularity shall be civilly,
criminally, and administratively
liable.

There is a need of consent to the marriage to be given, in the order mentioned, by the father, the mother, the
surviving parent or guardian, or persons having legal charge of them.
The consent shall be manifested in writing by the interested party, who personally appears before the local civil
registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized
by law to administer oath. (Art. 14, FC)
REQUIREMENT IF ANY OF THE CONTRACTING PARTIES IS BETWEEN 21 AND 25 YEARS OLD
The party concerned shall be obliged to ask parental advice.
If said advice is not obtained, or if such advice is not favorable, or if the parent or guardian concerned refuses to
give any advice, no marriage license shall issue till after three months following the completion of publication of the
application for marriage license. (Art. 15, FC)
EFFECT IF MARRIAGE IS CELEBRATED WITHIN THE THREE MONTHS PERIOD ON THE BASIS OF A
MARRIAGE LICENSE ISSUED IN VIOLATION OF THE SAID PERIOD
The marriage is valid, but the parties responsible of the irregularity shall be civilly, criminally, and
administratively liable. In other words, the same is treated merely as an irregularity. (Art. 4, FC)
AUTHORITY OF THE SOLEMNIZING OFFICER
Marriages solemnized by any person not legally authorized to perform marriages are void unless such marriages
were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do
so. (Art. 35[2], FC)
MARRIAGE LICENSE
Without a marriage license, the marriage is void. But for as long as there is a marriage license, it is immaterial if it
is illegally or irregularly obtained. The marriage is valid just the same, but the guilty parties shall be civilly, criminally,
and administratively liable. (Art. 4, 3rd par., FC)
FORMALITIES OF MARRIAGE
No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary,
however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not
less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in
the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the
solemnizing officer. (Art. 6, FC)
VOID AND VOIDABLE MARRIAGE
The distinctions between a void and voidable marriage as to its concept and its effect are as follows:

Void marriage Voidable marriage

1. It is void ab initio. It is void from the very 10. The marriage is valid until it is
beginning and therefore no marriage annulled.
legally exists.
2. The marriage can never be ratified. 11. The marriage can be ratified by
free cohabitation.
3. No conjugal partnership is created. 12. There is conjugal partnership
unless the marriage settlements
provided otherwise.
 4. There is no need for a judicial declaration 13. A judicial decision is needed to
that the marriage is void. annul the marriage.
5. The validity of the marriage may be 14. The validity of the marriage may
attacked even after the death of one party. not be attacked after one party
dies.
6. The status of children born out of 15. The status of children born out of
marriage that are void ab initio – they are voidable marriages:
illegitimate children except as provided IV. Those conceived before a decree of
under Article 54 of the Family Code annulment are Legitimate children;
which provide as follows: V. Those conceived after a decree of
Art. 54. Children conceived or born annulment are Illegitimate children.
before the judgment of annulment or
absolute nullity of the marriage under
Article 36 has become final and executory
shall be considered as legitimate.
Children conceived or born of the
subsequent marriage under Article 53
shall likewise be legitimated.

WHAT MARRIAGES ARE VOID FROM THE BEGINNING?

Under Article 35 of the Family Code, the following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were
contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to
do so;
(3) Those solemnized without license, except those covered by the preceding Chapter;
(4) Those bigamous or polygamous marriage not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
WHAT ARE OTHER VOID MARRIAGES?
1. Void because of psychological incapacity
Art. 36. A marriage contracted by any party, who at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall be void even if such incapacity
becomes manifest only after its solemnization.
2. Void because of incestuous relationship
Art. 37. Marriages between the following are incestuous and void from the beginning, whether the
relationship between the parties be legitimate or illegitimate.
i. Between ascendants and descendants of any degree; and
j. Between brothers and sisters, whether of the full or half-blood.
3. Void from the beginning for reasons of public policy
Art. 38. The following marriages shall be void from the beginning for reasons of public policy.
ESSENTIAL REQUISITES:
(1) LEGAL CAPACITY and (2) CONSENT FREELY GIVEN
LEGAL CAPACITY
This means that the parties must have the necessary age and that there must be no impediment caused by a prior
existing marriage or by a certain relationship, whether on account of affinity or consanguinity.
RULES TO REMEMBER
(1) Marriageable age for either male or female shall be 18 years old and above. (Art. 5, FC)
(2) If either or both of the contracting parties (not having been emancipated by previous marriage) are between 18
and 21 years old, there must be consent to the marriage by the father, mother, surviving parent or guardian or
persons having legal charge of them, in the order mentioned. (Art. 14, FC)
(3) Any contracting party between the age of 21 and 25 shall be obliged to ask their parents or guardian for advice,
or if it be unfavorable, the marriage license shall not be issued till after three (3) months following the completion
of the publication of the application therefore. (Art. 15, FC)
(4) If parental consent or parental advice is needed, there must be a certificate that the contracting parties have
undergone marriage counselling. Failure to attach certificate of marriage counselling shall suspend the completion
of the publication of the application. (Art. 16, FC)
(5) Marriage celebrated without the required license, except when otherwise provided by law like marriage in
articulo mortis, shall be null and void. (Art. 35[3], FC)
(6) Marriage contracted by any party below 18 years of age, even with parental consent, shall be null and void. (Art.
35[1], FC)
CONSENT FREELY GIVEN
The consent referred to in Article 2 of the Family Code refers to the consent of the contracting parties. If there is
no consent or when the parties do not have the intention to be bound, the marriage is void. If there is consent, but there
was error, fraud, intimidation, or force the marriage is voidable. (Art. 45, FC)
WHAT CONSTITUTES FRAUD AS A GROUND FOR ANNULMENT OF MARRIAGE?
Article 46 of the Family Code answers this question. It provides as follows:
(1) Non-disclosure of a previous convictions by final judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism at the time of the marriage.
No other misrepresentation or deceits as to character, health, rank, fortune, or chastity shall constitute such fraud as
will give grounds for action for the annulment of marriage.
EFFECTS OF ANNULMENT OF VOIDABLE MARRIAGE
It has four effects namely:
(1) WITH RESPECT TO EDUCATION AND SUPPORT – The court shall provide for their education and
support. (Art. 49, FC)
(2) WITH RESPECT TO CUSTODY OF CHILDREN – The custody of the children is provided for as the court
deems best. (Art. 49, FC)
(3) WITH RESPECT TO ATTORNEYS FEES AND LITIGATION EXPENSES – They are taken from the
community property, if the action is successful (Art. 90, NCC)
(4) WITH RESPECT TO THE GUILTY PARTY – Damages are assessed against the guilty party in case of
annulment due to:
a. Lack of authority of the solemnizing officer concealed from one party;
b. Concealment of impotence, or of a prior marriage still in force;
c. Concealment of incestuous relationship or of quasi-incestuous disqualification under Article 82;
d. Knowledge of insanity of one party. (Art. 91)
STATUS OF CHILDREN BORN OUT OF MARRIAGES AB INITIO
They are illegitimate children except as provided under Article 54 of the Family Code which provides as follows:
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under
Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent
marriage under Article 53 shall likewise be legitimate.
STATUS OF CHILDREN BORN OUT OF VOIDABLE MARRIAGES
It depends. Those conceived BEFORE an appealable decree of annulment are legitimate children. Those
conceived AFTER such decree of annulment are illegitimate children.
RESTRICTIONS AND PRECAUTIONS TO BE OBSERVED BY THE COURT IN ISSUING THE DECREE OF
ANNULMENT
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the
prosecuting attorney on fiscal assigned to it to appear on behalf of the state to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or suppressed.
In all cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or
confession of judgment.
LEGAL SEPARATION
INTRODUCTION
In the Philippines, we do not have absolute divorce (divorce a vinculo matrimoni). We only have relative divorce
or legal separation (divorce a mensa et thoro). In absolute divorce, the marriage is dissolved and the parties can remarry.
In relative divorce or legal separation, however, the marriage bond is not dissolved and the parties are not entitled to
remarry. In effect, the parties are merely separated from bed and board.
GROUNDS FOR LEGAL SEPARATION
There are 10 grounds for legal separation under Article 55 of the Family Code, to wit:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
 For purpose of this Article, the term “child” shall include a child by nature or by adoption. Under Article 97 of
the Civil Code there are only two grounds for legal separation, namely:
(1) For adultery on the part of the wife for concubinage on the part of the husband as defined in the Penal Code; or
(2) An attempt by one spouse against the life of the other.
WITHIN WHAT TIME SHOULD AN ACTION FOR LEGAL SEPARATION BE FILED?
Article 57 of the Family Code provide that an action for legal separation shall be filed within five years from the
time of the occurrence of the cause.
EVIDENCE REQUIRED AS BASIS FOR JUDGMENT IN ACTION FOR LEGAL SEPARATION
Simple preponderance of evidence is required. No previous criminal conviction is necessary. No decree of legal
separation shall be based upon a stipulation of facts or a confession of judgment.
WHAT IS ADULTERY?
Adultery is a crime committed by any married woman who shall have sexual intercourse with a man not her
husband; and by a man who has carnal knowledge of her, knowing her to be married, even if the marriage be subsequently
declared void. (Art. 333, RPC)
NOTE:
 Article 333 of the Revised Penal Code specifies that the crime is committed by a married woman.
Therefore, if a woman is single or not married, and she has sexual intercourse with her two or more
boyfriends, she cannot be held liable for adultery.
 Adultery may be proved by circumstantial evidence.
WHAT IS CONCUBINAGE?
Any husband who shall keep a mistress in the conjugal dwelling or, shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be
punished by prision correctional in its minimum and maximum periods. (Art. 394, RPC)
REQUISITES FOR LEGAL SEPARATION
The requisites for legal separation are those provided in Articles 57, 58, 59, 60 of the Family Code:
First Time Constraint
“Art. 57. An act for legal separation shall be filed within five (5) years from the time of the concurrence of the
cause.”
Second: Cooling off Period
“Art. 58. An action for legal separation shall in no case be tried before six (6) months shall have elapsed since the
filing of the petition.”
Third: Reconciliation
“Art. 59. In every case, no legal separation may be decreed unless the court has taken steps toward the
reconciliation of the spouses and is fully satisfied despite such efforts, that reconciliation is highly improbable.”
FOURTH: No Legal Separation on the Basis of Stipulation of Facts
“Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion
between the parties and to take care that the evidence is not fabricated or suppressed.”
EFFECTS OF LEGAL SEPARATION
The effects of legal separation are those mentioned in Articles 61, 62, 63, 198, and 213 of the Family Code:
Art.61 – states the effects after the petition for legal separation is filed.
Art.62 – states the effects during the pendency of legal separation.
Art.63 – states the effects of the decree of legal separation.
Art.49 – (1st paragraph) states the effects of the pending petition for legal separation.
Art. 198 – (2nd paragraph) states the effects of a final judgment granting the petition for legal separation.
Art. 213 – states the effects of separation with respect to parental authority.
EFFECTS AFTER FILING OF THE PETITION (ART. 61, FC)
5. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from
each other.
6. The court, in the absence of a written agreement between the spouses, shall designate either of them or a
third person to administer the absolute community or conjugal partnership property. The administrator
appointed by the court shall have the same powers and duties as those of a guardian under the Rules of
Court.
EFFECTS DURING PENDENCY OF LEGAL SEPARATION (ART. 49, FC)
During the pendency of the action and in the absence of adequate provisions in a written agreement between the
spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The
Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent
with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the
other parent.
EFFECTS OF THE DECREE OF LEGAL SEPARATION (ART. 63, FC)
1. The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed.
2. The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the provisions of Article 43(2).
3. The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article
213 of the Code.
4. The offended spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provision in favor of the offending spouse made in the will of the innocent spouse shall be revoked by
operation of law.
EFFECTS DURING THE PROCEEDING FOR LEGAL SEPARATION OR OF ANNULMENT OF MARRIAGE
During the proceedings for legal separation or for annulment of marriage, and for declaration of nullity of
marriage, the spouses and their children shall be supported from the properties of the absolute community or the conjugal
partnership. (Art. 198, 1st par.)
After the final judgment granting the petition, the obligation of mutual support between the spouses ceases.
However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one,
specifying the terms of such order. (Art. 198, 2nd par.)
PARENTAL AUTHORITY IS EXERCISED BY THE PARENT DESIGNATED BY THE COURT. (ART. 213,
FC)
In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court.
The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age,
unless the parent chosen, is unfit.
EFFECTS OF RECONCILIATION OF THE PARTIES (ARTS. 65 AND 68, FC)
If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed
with the court in the same proceedings for legal separation. (Art. 65)
The reconciliation referred to in the preceding Article shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage;
(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.
The court’s order containing the foregoing shall be recorded in the proper civil registries.
IN CASE OF BREACH OF MUTUAL OBLIGATION OR MUTUAL HELP AND SUPPORT
- An action for support may be filed.
- An action for receivership, separation of property or for administration by the wife may be filed in case of
desertion by the husband.
- Judicial admonition and other measures may be taken by the court. However, the court cannot compel
cohabitation.
IN CASE OF BREACH OF MUTUAL OBLIGATION TO OBSERVE RESPECT AND FIDELITY
(4) A petition for legal separation may be filed.
(5) The convicted spouse shall forfeit his or her right to support.
(6) The guilty spouse shall be disinherited.
(7) The guilty spouse shall not be capable to succeed.
“Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the
family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for
authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as
the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital, parental, or property
relations.
A spouse is deemed to have abandoned the other when he or she left the conjugal dwelling without intention of
returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same
period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling.”
AS REGARDS THE OBLIGATION OF THE SPOUSE TO LIVE TOGETHER
 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to
be supported. (Art. 127[1])
2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be
obtained in a summary proceeding. (Art. 127[2])
3. In the absence of sufficient conjugal partnership property, the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall, upon petition in a summary proceeding, be given
judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits
or proceeds thereof to satisfy the latter’s share.
ABSOLUTE DIVORCE
Question – Do we have absolute divorce in the Philippines?
Answer – We do not have absolute divorce in the Philippines. Muslim divorce was previously declared valid and
recognized under R.A. No. 394 but this law is valid only for a period of twenty (20) years from June 18, 1949.
Therefore, actions for absolute divorce between Filipinos or between foreigners or between Filipino and a
foreigner will not prosper in Philippine courts. If said action is brought in a foreign court by a foreigner and the same is
granted, the foreign court has jurisdiction to grant the absolute divorce and provided further that said divorce is recognized
as valid according to the national law of the parties. If said action is brought in a foreign country by a Filipino citizen, the
same even if granted, will not be recognized in the Philippines.
CONJUGAL PARTNERSHIP OF GAINS
Article 106 of the Family Code defines conjugal partnership of gains as follows:
Under the regime of conjugal partnership of gains, the husband and wife place in a common fund the proceeds,
products, fruits, and income from their separate properties, and those acquired by either or both spouses through their
efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by
either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements.
DEFINITION OF PARAPHERNAL PROPERTY
Art. 109. The following shall be the exclusive property of each spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each requires during the marriage by gratuitous title;
(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only of
the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
Question – What are the duties of Husband and Wife?
Answer – They are obliged:
(1) To live together;
(2) To observe mutual respect and fidelity; and
(3) To render mutual help and support.
SCOPE OF DUTY TO LIVE TOGETHER
The husband and the wife have a right to live together and this includes cohabitation and sexual intercourse. With
the enactment of R.A. No. 8353 otherwise known as Anti-Rape Law of 1997, a husband may be held liable for the rape of
his wife. However, the subsequent forgiveness by the wife shall extinguish the criminal liability except when the marriage
is void ab initio.
MUTUAL RESPECT AND FIDELITY
Mutual respect simply means that each shall respect the other. They can disagree or reprimand each other but it is
unlawful for them to inflict force or physical harm, EXCEPT when either of them SURPRISES the other in the act of
committing sexual intercourse with another person. Even under this situation, Article 247 of the Revised Penal Code
imposes a penalty of destierro to the guilty spouse.
Infidelity, on the other hand, is a ground for legal separation or disinheritance under Article 55(8) and 63(4) of the
Family Code.
MUTUAL HELP AND SUPPORT
Husband does not marry his wife to make the latter his slave and vice-versa. They should help and support each
other with their available resources and see to it that they assist each other the rearing of their children for civic efficiency
and development moral character.
Under Article 11 of the Revised Penal Code, defense of the spouse is a justifying circumstance provided the other
requisites therein are present.
HUSBAND’S RIGHT TO FIX RESIDENCE
As a rule, the husband shall fix the residence of the family. However, the wife may establish a separate residence,
IF:
1. The husband maltreats her or grossly insults her;
 2. The husband continuously refuses to support her;
3. The husband is immoderate or barbaric in his demands for sexual intercourse;
4. The wife is virtually driven out of the conjugal home by the husband; and
5. The husband continually indulges in illicit relations with another woman.
CAN THE WIFE ACQUIRE ANY PROPERTY BY GRATUITOUS TITLE?
The wife cannot, without the husband’s consent, acquire any property by gratuitous title EXCEPT from her
ascendants, descendants, parent-in-law, and collateral relative within the fourth degree.
WHAT IS A MARRIAGE SETTLEMENT?
It is an ante-nuptial contract entered into by the prospective spouses for the purpose of fixing the conditions with
respect to their present and future property.
WHO ARE THE PARTIES TO A MARRIAGE SETTLEMENT?
It depends. If the future spouses are of age, they are the parties to the marriage settlement. If one or both of the
spouses are minors (under 21), the parties are:
6. The future spouses even if they are minors;
7. The parent or guardian; and
8. The family council if there is no guardian or parent.
SYSTEMS THAT MAY BE ADOPTED BY THE PARTIES TO GOVERN THEIR PROPERTY RELATIONS
(6) Absolute Community
(1) Present and future property (with certain exceptions) is to be owned in common.
(2) Expenses are borne by the common property.
(7) Relative Community of Gains (Conjugal Partnership)
(1) Present property continues to be owned by the respective spouses;
(2) Future property is separate if acquired gratuitously, but common if acquired by onerous title at the
community’s expenses; and
(3) Fruits and earnings are common.
(8) Absolute Separation
4. Present and future property is owned by the holder or acquirer.
5. Fruits are separately owned by the owner of the producing property.
6. Family expenses are contributed by each spouse according to stipulation or in proportion to their respective
income.
(9) Dotal System (Dowry)
(1) Property of the wife is managed by the husband during the marriage.
(2) Fruits go to the husband.
(3) Expenses are borne by the husband.
(4) Upon cessation of common life, the property is returned.
WHAT SYSTEMS GOVERN?
Art. 74. The property relations between husband and wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
IN THE ABSENCE OF MARRIAGE SETTLEMENT, OR WHEN THE AGREED REGIME IS VOID, WHAT
GOVERNS THE PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE?
The system of absolute community of property as established by the Family Code shall govern. (Art. 75, FC)
Art.75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community,
conjugal partnership or grains, complete separation of property, or any other regime. In the absence of a marriage
settlement or when the regime agreed upon is void, the system of absolute community or property as established in this
code shall govern.
Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the
celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and
executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the
local civil registry where the marriage contract is recorded as well as in the proper registries of property.
CONCEPT OF DONATION PROPTER NUPTIAS
Propter nuptias (donations by reason of marriage) are those which are made before its celebration, in
consideration of the same and in favor of one or both of the future spouses.
REQUISITES OF DONATION PROPTER NUPTIAS
The donation must be made:
5. Before the marriage;
6. In favor of either spouses or both; and
7. In consideration (by reason) of the marriage
DISTINCTION BETWEEN DONATION PROPTER NUPTIAS AND ORDINARY DONATION
Propter Nuptias Ordinary Donation
1. Acceptance is not required 1. Acceptance is required.
2. The future spouses cannot give more than 2. The donor can give not more than what he
1/5 of their present property. (Art. 84) can give by will.
3. It can include future property. (Art. 84) 3. It cannot include future property.
4. The donor must free the property except 4. The donor need not free the property
from servitudes unless otherwise unless the donation is onerous.
stipulated. 5. The donation may be revoked for the
5. The donation may be revoked for the following reasons:
following reasons: (a) Breach of conditions.
(e) The condition is not fulfilled (b) Ingratitude.
(f) The marriage does not take (c) Appearance of children.
place.
(g) The marriage is annulled due
to bad faith of the dome.
(h) There is legal separation due
to the fault of the dome.
(i) Lack of required parental
consent to the marriage.
(j) Governed by Statute of
Frauds.

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE COMMON TO HUSBAND AND WIFE
Art. 69 – The husband and the wife shall fix the family domicile. In case of disagreement, the court shall decide.
Art. 70. – The spouses are jointly responsible for the support of the family. The expenses for such support and
other conjugal obligations shall be paid from the community property and in the absence thereof, from the income or
fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be
satisfied from their separate properties.
Art 72. – When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.
Art. 73. – Either spouse may exercise any legitimate profession, occupation, business or activity without the
consent of the other. The latter may object only on valid, serious and moral grounds.
In case of disagreement, the court shall decide whether or not:
1. The objection is proper; and
2. Benefit has accrued to the family prior to the objection, the resulting obligation shall be enforced against the
separate property of the spouse who has not obtained consent
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.
Art. 68 – The husband and wife are obliged to live together, observed mutual love, respect and fidelity, and render
mutual help, and support.
TO LIVE TOGETHER
This is both a duty and a right. This includes cohabitation or consortium and sexual intercourse. If there is,
however, a legal separation, there is no more duty to have sexual intercourse.
WIFE MAY ESTABLISH A SEPARATE DOMICILE
The wife may establish a separate domicile in the following cases:
5. If the husband maltreats her. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54)
6. If the husband grossly insults her. (Talanan v. Willis, [CA] 35 O.G. 1369)
7. If the husband is immoderate or barbaric in his demands for sexual intercourse. (Goitia v. Campos-Rueda, 35
Phil. 252)
8. If the husband continuously indulges in illicit relations with another even if the concubine or concubines are not
brought into the martial abode. (Dadivas v. Villanueva, 54 Phil. 92)
9. If the husband refuses to support the family or continuously gambles. (Panuncio v. Sula, [CA] 34 O.G. 6122)
10. If the husband insists on living with his own parents. (Del Rosario v. Del Rosario, CA 4600 O.G. 6122)
11. If she is virtually driven out of their home by her husband and she is threatened with violence if she should return.
(Garcia v. Santiago and Santiago, 53 Phil. 952)
OTHER CONSEQUENCES OF MARRIAGE
8. A husband and wife can chastise or reprimand each other but may not inflict force except when either catches the
other in the act of sexual intercourse with another. (Art. 247, RPC)
9. Marriage emancipates a person from parental authority as to person.
10. A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband
without his consent, except in a civil case by one against the other, or in a criminal case for a crime committed by
and against the other. (Sec. 20[b], Rule 130)
 11. The husband or the wife during the marriage or afterwards, cannot be examined without the consent of the other
as to any communication received in confidence by one from the other during the marriage. (Sec. 21[a], rule 130)
12. A Filipino woman who marries an alien acquires his nationality if so provided by her husband’s laws.
(Commonwealth Act No. 63)
13. A foreign woman who marries a Filipino may become a Filipino provided she herself may be lawfully
naturalized. (Sec. 15, Commonwealth Act No. 473)

Chapter VIII
THE FAMILY
FAMILY DEFINED
The family is a basic social institution which public policy cherishes and protects. No custom, practice or
agreement which is destructive to the family shall be recognized or given effect.
FAMILY SUITS ARE DISCOURAGED
No suit between the same family shall prosper unless it should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts
were in fact made, the case must be dismissed. (Art. 151, FC)
FAMILY HOME DEFINED
Article 152 of the Family Code defines a family home as: “The dwelling house where a person and his family
reside, and the land on which it is situated,”
The family home may be created judicially or extrajudicially. If thus created, it is exempt from: (1) execution; (2)
forced sale; and (3) attachment.
ADVANTAGES OF A FAMILY HOME
It is exempt from execution, forced sale, or attachment. It is liable only:
3. For non-payment of taxes;
4. For debts incurred prior to the constitution of the family home;
5. For debts secured by mortgage on the premises before or after such constitution; and
6. For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or
furnished material for the construction of the building. (Art 155, FC)

CHAPTER IX
PROPERTY
PROPERTY DEFINED
Things which are or may be the object of appropriation are considered as property. The word “thing” is broader
than the concept of property. More specifically, property refers to things which are susceptible to appropriation and
already possessed and found in the possession of man. Things are those same objects before their appropriation of man.
The stars and the planets are included in the concept of “things” but since they cannot be appropriated, they cannot be
considered property.
PRINCIPAL CLASSIFICATION OF PROPERTY
Under the New Civil Code, property may either be: (1) Immovable or real property; or (2) Movable or personal
property.
CLASSIFICATION OF REAL OR IMMOVABLE PROPERTIES
CODE: NIDA
N – Nature
I – Incorporation
D – Destination
A – Analogy
(8) Real property by nature – Those which by their very nature are immovable, i.e., (a) land, building, roads, and
construction of all kinds adhered to the soil; and (b) mines, quarries, and slug dumps, while the matter thereof
forms part of the bed, and waters either running or stagnant.
(9) Real property by incorporation – Those which are attached, to an immovable in a fixed manner (i.e.,
building):
j. Buildings, roads and construction of all kinds adhered to the soil;
k. Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an
immovable;
l. Everything attached to an immovable in fixed manner, in such a way that it cannot be separate
therefrom without breaking the material or deterioration of the object;
 m. Statues, relief, paintings, or other objects for use or ornamentation, placed in buildings or on lands by
the owner of the immovable in such a manner that it reveals the intention to attach them permanently
to the tenements.
(14) Real property by destination or purpose – those attached to an immovable in such a manner that they
constitute an ideal identity (i.e., machinery used in a cement plant):
o. Statues, reliefs, paintings, or other objects for use or ornamentation, placed in buildings or on lands
by the owner of the immovable in such a manner that it reveals the intention to attach them
permanently to the tenements;
p. Machinery, receptacles, instruments or implements intended by the owner of the tenement for an
industry or works which may be carried on in a building or on a piece of land, and which tend directly
to meet the need of the said industry or works;
q. Animal houses, pigeon houses, beehives, fish ponds or breeding places of similar nature, in case their
owner has placed them or preserved them with the intention to have them permanently attached to the
land, and forming a permanent part of it; the animals in these places are included;
r. Fertilizer actually used on a piece of land;
s. Docks and structures which, through floating, are intended by their nature and object to remain at a
fixed placed on a river, lake, or coast.
(20) Real property by analogy – This includes rights over immovable property (e.g., servitudes and contracts
for public works):
u. Contracts for public works, and servitudes and other real rights over immovable property.
NOTE:
(10) A building whether built on a rented land or not and whether it was built by the owner of the land or not is
Real property.
(11) A house is an immovable property but once it is demolished, it ceases to be an Immovable property.
(12) A barong-barong cannot be considered immovable.
MOVABLE OR PERSONAL PROPERTIES
The following are deemed to be personal properties:
- Those movables susceptible of appropriation which are not included in the preceding article (e.g., pencil,
watch);
- Real property which by any special provision as law is considered as personal property (e.g., growing crops);
- Forces of nature which are brought under control by science (e.g., electricity);
- In general, all things which can be transported from place to place without impairment of the real property to
which they are fixed (e.g., picture frame hanging on the wall).
DEFINITION AND CONCEPT OF OWNERSHIP
Ownership is the right to enjoy and dispose of a thing, without other limitations than those established by law.
(Art. 428, NCC)
Hence, the ownership is not absolute. It may be restricted by the following by the following limitations:
k. Limitations imposed by law:
i Right of way;
ii Easement of party wall; and
iii Easement of waters.
l. Limitations imposed by the State:
i Power of eminent domain;
ii Police power; and
iii Power of taxation.
m. Limitations imposed by the owner himself such as those arising from a contract of mortgage, pledge, or lease.
EXTENT OF OWNERSHIP
Extent of one’s ownership which a person has over a parcel of land is defined in Article 437 which provides as
follows:
“Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can
construct thereon any works or make any plantations and excavations which he may deem proper, without detriment to
servitudes and subject to special laws and ordinances. He cannot complain of the reasonable requirements of aerial
navigation.”
As a rule therefore, the owner of a parcel of land is the owner of its surface and of everything under it subject only
to the following limitations: (a) servitudes; (b) special laws; (c) ordinances; (d) reasonable requirements of aerial
navigation; and (e) the Latin maxim of Sic Utere Tuo Ut Alienum Non Laedas.
(Sic Utere Tuo Ut Alienum Non Laedas – this is a Latin maxim expressed in a similar vein in Article 431 of the New Civil
Code which says: “The owner of a thing cannot make use thereof in such a manner as to injure the rights of the third
person.”)
OWNERSHIP OF A HIDDEN TREASURE
Article 438 of the New Civil Code defines who is the owner of a hidden treasure. It says:
“Art. 438. Hidden treasures belong to the owner of the land, building, or other property on which it is found.”
 Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions,
and by chance, one-half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any
share of the treasure.
If the things found be of interest to the science or the arts, the State may acquire their just price, which shall be
divided in conformity with the rule stated.
Simply stated, the law states three instances or situations:
14. The hidden treasure may be found in one’s own property;
15. The hidden treasure may be found on a building;
16. The hidden treasure may be found on the property of another.
If one finds a hidden treasure in his own land or building, he owns it exclusively. If the finder is married, the
treasure belongs to the conjugal property.
If the hidden treasure is found on the land or building of another by chance, the finder owns one-half of the
hidden treasure and the other half of the hidden treasure belongs to the owner of the land or building.
If the finder is a trespasser, he is not entitled to any share. However, if the things found be of interest to the
science or the arts, the State may acquire them at their just price which shall be divided according to the provisions of
Article 438.
DEFINITION OF HIDDEN TREASURE
“Art. 439. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of which does not appear.”
MODES OF ACQUIRING OWNERSHIP
The modes of acquisition stated in our New Civil Code are Roman in origin. All those mentioned in Roman law
books as modes of acquisition, except mancipatio and addictio, are still mentioned in the New Civil Code. This is shown
in the comparative list below.
It will be noted that accession is not listed in the New Civil Code as a mode of acquiring ownership. In Roman
law, it is a specific mode of acquiring ownership. If anything therefore is acquired by or through accession, it is, on the
basis of the New Civil Code, to be treated as acquisition in accordance with law.
ROMAN LAW NEW CIVIL CODE
Original Modes Original Modes
1. Occupation 1. Occupation
(a) Animal ferae naturae (a) Wild animals or those
(b) New things acquired by hunting or fishing
(c) Res Hostis (b) Hidden treasure (Thesaurus
in Roman Law)
(c) Abandoned thing (Res
Dereclita in Roman Law)
2. Accessio 2. Intellectual creation
2a. Natural Accession continua (a) Copyrights on any literacy,
2a.1 Alluvion dramatic, historical, legal,
2a.2 Avulsion scientific or other works;
2a.3 Insula nata (b) Invention or discovery; and
2a.4 Alveus Derelictus (c) Letter
2b. Artificial Accessio continua
2b.1 On real property
2b.1.1 Inaedificatio
2b.1.2 Satio Implantatio
2b.2 On personal property
2b.2.1 Commixtio
2b.2.2 Confusio
2b.2.3 Adjudicatio
2b.2.4 Specificatio
3. Prescriptio

DERIVATIVE MODES
7. Succession
8. Donation
9. Prescription
10. Law
11. Delivery (Traditio in Roman Law)
NOTES:
Roman law terms mentioned below have their counterparts in the New Civil Code, thus:
Animals ferai naturae – Wild animals (Art. 713)
 Res Derelicta – Abandoned property (Art. 719, last par.)
Thesaurus – Hidden Treasure (Art. 438)
Accessio – Accession (Art. 440)
14. Accessio continua – Accession by attachment incorporation
a. Alluvion – Alluvion (Art. 457)
b. Avulsion – Avulsion (Art. 459)
c. Insula Nata – Formation of islands (Arts. 464-465)
d. Alveus Dereclictus – Change of course of river
ARTIFICIAL
ON REAL PROPERTY:
(k) Inaedificatio – Building (Arts. 445 to 446)
(l) Satio Implantatio – Sowing and Planting (Arts. 445 to 446)
ON PERSONAL PROPERTY:
16. Commixtio – mixture of solids (Arts. 472 to 473)
17. Confusio – mixture of liquids (Arts. 472 to 473)
18. Adjudicatio – award by court judgment (i.e., damages awarded by the courts like those provided in Art.
2206)
19. Specificatio – specification (Art. 474)

15. Accessio discrete – Accessio Discreta (Art. 441)

6. Natural fruits – same concept (Art. 442)
7. Civil fruits – same concept (Art. 442)
8. Industrial fruits – same concept (Art. 442)
ATTRIBUTES OF OWNERSHIP
12. Jus Possidendi – Rights to possess
13. Jus Utendi – Right to use and enjoy
14. Jus Fruendi – Right to the Fruits
15. Jus Accessionis – Right to accessories
16. Jus Abutendi – Right to consume
17. Jus Disponendi – Right to dispose or alienate
18. Jus Vindicandi – Right to recover
BRIEF EXPLANATION OF EACH
4. Right to possess: This is the right to hold a thing or enjoy the right. This possession may be in the concept of an
owner or a mere holder with the ownership pertaining to another.
5. Right to use and enjoy: This right includes “the right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or
threatened, unlawful physical invasion or usurpation of his property.” (Art. 429). He may enclose or fence his
property, subject to the servitudes that may be constituted thereon. (Art. 430).
An owner, however, cannot make use of his property in such a manner as to injure the rights of a third person
(Art. 431); otherwise, he may be held liable to damages. (Art. 2176). The use of property has a social function to
contribute to the common good. (Constitution, Art. XII, Sec. 6.)
6. Right to receive the fruits and accessories: The ownership of property gives the right by accession to everything
which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially. Thus,
accession includes the right to the fruits and the right to the accessories of a thing (see Art. 440). The word
“accessions” is also used to refer to the fruits of a thing.
The owner of a thing has ordinarily the right to ownership of the product or fruits of the same. Fruits under the
law may be natural, industrial, or civil. (Art. 441). In some instances, the possessor, not the owner, is entitled to
the fruits, such as the possessor in good faith (Art. 554), usufructuary (Art. 556), lessee of agricultural land (Art.
1676), and antichretic creditor. (Art. 432)
7. Right to consume: This is right of the owner to consume a thing by its use, the use that extinguishes, that
consumes things which are consumable.
8. Right to dispose or alienate: An owner may dispose of or alienate his property either totally, as in sale and
donation, or particularly, without transferring ownership, as in lease, pledge, and mortgage. In the second case,
the owner creates an encumbrance on his property that restricts the use or transfer of the same.
i. Right not to dispose – The right to dispose includes the right not to dispose. A person just because he is
willing to sell his property to “X” may not be obligated to sell it to “Y” unless the law is certain on
specific cases such when legal redemption compels him to do so.
j. Duty of vendor to transfer ownership – It is essential, as a general rule, in order for a sale to be valid, that
the seller must be able to transfer ownership (Art. 1458) and therefore, he must be the owner or at least
authorized by the owner of the thing sold.
k. Ownership of property pledged, mortgaged, or leased – The contract of pledge or mortgage may be
constituted only by the absolute owner of the thing pledged or mortgaged (Art. 2085; otherwise, the
pledge or mortgage is void).
12. Right to vindicate or recover – The right of an owner to recover his property depends or whether the property is
real or personal and whether the purpose of the action is merely to recover possession or ownership, or both to
recover possession and vindicate his ownership.
 m. Recovery of personal property – This involves the personal remedy of replevin or manual delivery of
personal property. (Rule 60, RRC)
n. Recovery of real property – There are three kinds of actions available to the owner or possessor
xv. Forcible entry or unlawful detainer (denominated as accion interdictal)
xvi. Plenary action to recover possession or accion publiciana.
xvii. Action to recover possession based on ownership or accion reinvidicatoria
LIMITATIONS ON THE RIGHT OF OWNERSHIP
Ownership in land or anything else must be considered, for many purposes, not as absolute, unrestricted dominations.
It is subject to limitations growing out of the nature of a well-ordered society. This limitation may be classified as follows:
26. Those imposed in general by the State in the exercise of the power of taxation, police power, and power of
eminent domain;
27. Those imposed by law such a legal easement and the requirement of legitime in succession;
28. Those imposed by the grantor of the property on the grantee, either by contract or by last will;
29. Those imposed by the owner himself, such as voluntary easement, mortgage, pledge, and lease; and
30. Those arising from conflicts of private rights such as those which take place in accessio continua.
To the above enumeration may be added limitations provided in the Constitution, particularly the prohibition against
the acquisition of private lands by aliens.
PRINCIPLE OF SELF-HELP
Article 429 “embodies the doctrine of self-help, which is found the German Civil Code, with the limitations that
the owner may use only such force as may be reasonably necessary. The right to repel or prevent an actual or threatened
physical invasion or usurpation of property is essential to the maintenance of property rights.” The following are the
requisites for this article to apply:
 Owner or lawful possessor – The person defending his property must be the owner or lawful
possessor, hence, if this possession is wrongful, the right to use force cannot be availed of;
 Reasonable force – He must use only such force as may be reasonable necessary to repel or prevent
an invasion or usurpation of his property, otherwise, he shall be liable for damages;
 No delay – The doctrine of self-help can only be exercised at the time of an actual or threatened
dispossession (German Management & Services v. Court of Appeals, 177 SCRA 495 [1989]), or
immediately after the dispossession to regain possession. Once delay has taken place, even if
excusable, the owner or lawful possessor must resort to judicial process for the recovery of the
property (Art. 433, 536) for he is no longer justified in taking the law into his own hands.
 Actual or threatened physical invasion or usurpation – The person against whom force is employed
has acted or is acting wrongfully or unlawfully; hence, the right of self-help is not available against
the sheriff attaching property in the lawful exercise of his function.
EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall
be protected in or restored to said possession by the means established by the laws and Rules of Court.
A possessor deprived of the possession through forcible entry may within ten (10) days from the filing of the
complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary
mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from
filing thereof.
A possessor, whether he is a possessor in the concept of owner or holder, has three (3) rights under Art. 539, thus:
7. He has the right to be respected on his possession;
8. If he is disturbed in his possession, he has the right to be protected or restored to his possession by any lawful
means; and
9. If he is deprived of his possession through forcible entry, he can secure a writ of preliminary mandatory
injunction to restore him in his possession.

CHAPTER X
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS
CONTRACTS AND OBLIGATIONS
When two persons enter into a written agreement, the terms and conditions they have agreed upon are stated
therein. They are bound by the said conditions (Art. 1308) and they should therefore comply with the same in good faith.
(Art. 1159) Hence, in a contract of lease, the lessee is bound to pay the agreed rentals in return for the use of leased
premises. The lessor, on the other hand, has the right to demand the payment of the agreed rentals on due date and during
the effectivity of the lease. If this is not complied with by the lessee, the lessor has the right to demand that the lessee
vacate the leased premises.
The observance of the conditions provided in a written agreement is premised on the fact that prior to the act, they
have discussed the terms of the agreement and subsequently thereafter, they have a meeting of the minds.
Hence, Article 1305 of the New Civil Code defines a contract as follows:
“Art. 1305. A contract is meeting of mind between two (2) persons whereby one binds himself, with respect to the other,
to give something or to render some service.”
ELEMENTS OF A CONTRACT
CODE: CSC
19. Essential elements
C – Consent
S – Subject matter
C – Consideration
Without these essential elements, there can be no contract.
20. Naturals elements – Unless otherwise stipulated, these elements are presumed to exist. Hence, in a contract of
sale, warranty against eviction and warranty against hidden defects are presumed to exist.
21. Accidental elements – Those agreed upon by the parties like agreement to pay in five equal installments.

WHEN IS A CONTRACT PERFECTED?

It depends.

A consensual contract like sale is perfected by mere consent. (Art. 1315, NCC)

A real contract like pledge is perfected by delivery of the thing pledged. (Art. 1316, NCC)

A formal contract like donation of a parcel of land where a subdivision chapel shall be built requires a public
instrument. (Art. 749, NCC)

CAN THE CONTRACTING PARTIES AGREE ON ANY TERM OF CONDITION?

Yes, provided they are not contrary to law, morals, good customs, public order, or public policy. (Art. 1306, NCC)

LAW

A written agreement of separation between husbands and wife is contrary to law.

Agreement to pay a rate of interest higher than that imposed by law is void.

MORALS

Agreement to pay excessive attorney’s fees is immoral.

Promise to marry based on a carnal consideration is immoral.

GOOD CUSTOMS

Agreement between a man and a woman, both between 18 and 21 years old, not to seek parental consent is
unlawful and contrary to good customs. Likewise, and agreement between a man and a woman, both between 21 and 25
years old, not to seek parental advice is also unlawful and contrary to good customs. In the Philippines, seeking the advice
and consent of parents before marriage and if the parties are within the ages prescribed in the New Family Code is an
established custom.

PUBLIC ORDER

Agreement to have a live performance of nude dancers in Plaza Miranda is contrary to morals, public order and
public policy.

PUBLIC POLICY

Agreement exempting a public utility bus operator and the driver from liability in case of accident arising from
gross negligence is contrary to law and public policy.

BASIC PRINCIPLES TO REMEMBER ABOUT CONTRACTS

(5) As a rule, contracts are perfected by mere consent. (Art. 1315, NCC)
(6) The contracting parties are bound by the contract they have entered into. (Art. 1318, NCC)
(7) As a rule, a contract takes effect only as between the parties, their assigns and heirs subject to the following
exceptions:
h. Except in the case where the rights and obligations arising from the contracts are not transmissible by
their nature or by stipulation and by provision of law (Art. 1311, NCC); and
i. Except where there is a stipulation in favor of a third person.
(10) If there is a stipulation in favor of a third person (Stipulation Pour Autrui), the following requisites must
be complied with:
k. The contracting parties must have clearly and deliberately conferred a favor of a third person;
l. A mere incidental benefit or interest of a person is not sufficient;
m. A third person must communicate his acceptance to the obligor before the revocation of the contract
or of the stipulation by the original parties. (Art. 1311, 2nd par)
 (14) The parties to a contract may stipulate on anything provided that the terms and conditions they have
agreed is not contrary to the law, morals, good customs, public order, and public policy. (Art. 1306, NCC)
(15) As a rule, an unauthorized person cannot enter into a contract in the name of another. If he wants to do so,
the following are required:
p. He must be duly authorized by the person whom he represents, either expressly or impliedly;
q. He must have right to represent said person;
r. The contract entered into by him must subsequently be ratified by the person he represents. (Art.
1317, NCC)
(19) Obligations arising from contract have the force of law between the contracting parties and should be
complied with in good faith. (Art. 1159, NCC)
(20) Contracts are obligatory in whatever form they may have been entered into, provided that all the
requisites for their validity are present. If a certain form is required by the law, that requirement is absolute
and indispensable. (Art. 1356, NCC)
(21) Any third person who induces another to violate the contract shall be liable for damages to the other
contracting party. (Art. 1314, NCC)
(22) In order to judge the intentions of the contracting parties, their contemporaneous and subsequent acts
shall be principally considered. (Art. 1317, NCC)

EXPLANATIONS

- AS A RULE, CONTRACTS ARE PERFECTED BY MERE CONSENT

Article 1315 refers to consensual contracts like a contract of sale. The kind of contract is perfected by mere
consent. From the moment of perfection, the parties are bound not only to the fulfillment of what have been expressly
stipulated but also to all the consequences which, according to their nature may be in keeping with good faith, usage,
and law.

As already discussed, a real contract is not perfected by, mere consent but by delivery.

Formal contracts must comply with a special form before it can be perfected. For instance, if X will donate his lot
to Y in order that the latter can build a chapel in said lot, the donation must be in a public instrument.

- THE CONTRACTING PARTIES ARE BOUND BY THE CONTRACT THEY HAVE ENTERED
INTO (ART. 1318, NCC)

The reason why a party entered into a contract is precisely to have an evidence of proof of what they have entered
into. Without the consent of the other contracting party, one cannot just abandon what has already been agreed upon
simply because his friend advised him that it is not beneficial to him or that he wants it to be changed by another term
he wants. If this is allowed or tolerated, a contract will be a useless formality and that there will be more confusion
and misunderstanding between the parties. Such is not the reason why parties entered into a contract.

- AS A RULE, A CONTRACT TAKES EFFECT ONLY AS BETWEEN THE PARTIES, THEIR

ASSIGNS AND THEIR HEIRS

A sells his car to B and they executed a Deed of Sale to evidence the same. Article 1311 says that said contract
takes effect only as between A and B, their assigns and heirs. Other relatives not being privies to the contracts, are not
therefore bound by the said contract of sale.

If before the delivery of the car, A dies, and it turns out that the car sold by A to B is a car stolen by A from Y, the
real owner, B cannot compel the son of A to deliver the car for even during the lifetime of A, he has clearly no right to
ownership and possession. The son of A, even if he likes to deliver the car to B, cannot do so for he has equally no
right whatsoever to the car.

- THE PARTIES TO A CONTRACT MAY STIPULATE ON ANYTHING PROVIDED THAT IT IS

NOT CONTRARY TO LAW, MORALS, GOOD CUSTOMS, PUBLIC ORDER AND PUBLIC
POLICY

- NO ONE MAY CONTRACT IN THE NAME OF ANOTHER WITHOUT AUTHORITY

Article 1317 should be construed in relation to Article 1897.

Article 1317 does not state whether the person entering into a contract in the name of the other is an agent. It
merely says: “No one may contract in the name of another without being authorized by the latter, or unless he has by
law a right to represent him.”

Assuming however, that the one entering into said contract is an agent acting for and in behalf of a certain
principal, the following rules shall apply:

(m) If the agent acts with authority and in behalf of the principal, the transaction is valid and the principal
is bound. The agent is not personally liable unless he deliberately binds himself. (Art. 1897, NCC)
(n) If the agent acts with authority but not in behalf of the principal and he acts for himself, the principal
is not bound, except if the transaction involves things belonging to the principal.
 (o) If the agent acts without authority but in behalf of his principal, the transaction is unenforceable. (Art.
1403) However, such transaction may be ratified. If ratified, the transaction is valid from the very
beginning. (Art. 1883, 2nd par.)
(p) If the agent acts without authority and in behalf himself, the transaction is valid whether or not the
subject matter belongs to the principal, provided that the agent can legally transfer the ownership of
the thing at the time of delivery. Otherwise, the agent will be held liable for eviction.

- OBLIGATIONS ARISING FROM CONTRACT HAVE THE FORCE OF LAW BETWEEN THE
CONTRACTING PARTIES AND SHOULD BE COMPLIED WITH IN GOOD FAITH

If A leases his apartment to B and they executed a formal contract of lease, there are rights and obligations arising
from the said contract. A, the lessor, is duty-bound to yield possession of his apartment to B and in return B shall pay
A the agreed rentals for the use of the leased premises. Each one of them has a duty and obligation to comply with
said contract in good faith.

- OBLIGATIONS DERIVED FROM THE LAW ARE NOT PRESUMED

Legal obligations must be clearly expressed in the law which creates it for they cannot merely be presumed.

- CONTRACTS ARE OBLIGATORY IN WHATEVER FORM THEY MAY HAVE BEEN ENTERED
INTO, PROVIDED THAT ALL THE REQUISITES FOR THEIR VALIDITY ARE PRESENT

As a rule, all contracts are valid regardless of form, provided that all the essential requisites for their validity are
present. However, when a specific form is required for their validity, then that form should be observed.

A form may be important for enforceability. Hence, Article 1403 of the New Civil Code provides as follows:

“Art. 1403. The following contracts are unenforceable, unless they are ratified.

16. Those entered into the name of another person by one who has been given no authority or legal
representation, or who has acted beyond his powers;
17. Those that do not comply with the Statue of Frauds as set forth in the number. In the following cases, an
agreement hereafter made shall be unenforceable by action, unless the same, or same note or
memorandum thereof, be in writing, and subscribed by the party charged, or by his agent; evidence,
therefore, of the agreement cannot be received without the writing, or a secondary evidence of its
contents;
a. And agreement that by its terms is not to be performed within a year from the making thereof.
b. A special promise to answer for the debt, default, or miscarriage of another.
c. An agreement made in consideration of marriage, other than promise to marry.
d. An agreement for the sale of goods, chattels of things in action, at a price not less than five
hundred pesos (P500.00), unless the buyer accepts and receives part of such goods and chattels,
or the evidences, or some of them, of such things in action, or pays at the time some part of the
purchase money; but when a sale is made by auction and entry is made by the auctioneer in his
sales book, at the time of the sale, of the amount and kind of property sold, terms of sale, price,
names of the purchasers and person on whose account the sale is made, it is a sufficient
memorandum.
e. An agreement for the leasing for a longer period than one year, or for the sale of real property or
of an interest therein.
f. A representation as to the credit of a third person.
18. Those where both parties are incapable of giving consent to a contract.

A form may be important for convenience. Hence, Article 1358 of the New Civil Code provides as follows:

“Art. 1358. The following must appear in a public document:

17. Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real
rights over immovable property; sales of real property or of an interest therein are governed by Articles 1403, No.
2, and 1405;
18. The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains;
19. The power to administer property, or any other power which has for its object an act appearing or which should
appear in a public document, or should prejudice a third person;
20. The cession of actions or rights proceeding from an act appearing in a public document.

All other contracts where the amount involved exceeds five hundred pesos (P500.00) must appear in writing, even
a private one. But sales of goods, chattels, or things in action are governed by Articles 1403, No. 2 and 1405.

- ANY THIRD PERSON WHO INDUCES ANOTHER TO VIOLATE THE CONTRACT SHALL BE
LIABLE FOR DAMAGES TO THE OTHER CONTRACTING PARTY

A third person, if not a party or a privy to the contract, has no interest therein whatsoever. This article ( Art. 1314,
NCC), penalizes said third person for damages if he induces another to violate his contract.

- IN ORDER TO JUDGE THE INTENTION OF THE CONTRACTING PARTIES, THEIR

CONTEMPORANEOUS AND SUBSEQUENT ACTS SHALL BE PRINCIPALLY CONSIDERED
 When the terms and conditions are clear and they leave no doubt as to the intention of the contracting parties, the
literal meaning of the stipulations shall control. The evident intention of the parties prevails over the wordings of the
contract. In order to judge this intention, the contemporaneous and subsequent acts of the parties shall be principally
considered. (Art. 1314, NCC)

Rules in the interpretation of the contracts are enumerated on Articles 1370 to 1379 of the New Civil Code. Rule
130 of the Revised Rules of Court shall supplement the foregoing rules.

CONCEPT OF OBLIGATION

There was a time when an obligation was classified into obediential and conventional. Obediential obligations are
those imposed by the will of God or the Law of Nature. Conventional obligations are those resulting from the will or
consent of the contracting parties. This is how 17th century civilians classified obligations.

In Roman Law, an obligation arises when one binds himself to give (DARE) or to perform any duty stipulated
(PRAESTARE). As used in Roman Law, an obligation is a tie or a bond (vinculum juris) which binds or holds two or
more persons together, creating both a duty and a right, the duty of the debtor to pay, and the right of the creditor to be
paid.

Under the New Civil Law, an obligation is now defined as “a juridical necessity to give, to do or not to do.” This
definition however, has been criticized as defective because it views obligations only from the side of the debtor.

The better definition of obligation, according to retired Justice J.B.L. Reyes, is that given by Arias Ramos, thus:

“An obligation is a juridical relation whereby a person (called the creditor) may demand from another (called the
debtor), the observance of a determinate conduct (the giving, doing or not doing) and in case of breach, may demand
satisfaction from the assets of the latter.

SOURCES OF OBLIGATION

Obligation may arise from: (1) law; (2) contracts; (3) quasi contracts; (4) acts or omissions punished by law; and
(5) quasi delicts. (Art. 1557, NCC)

Obligations arising from contracts have the force of law between the contracting parties and should be complied
with in good faith (Art. 1159, NCC)

Obligations arising from criminal offenses are governed by penal laws subject to the provisions of Article 2177
and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, Title XVII of the New Civil Code.

Obligations arising from quasi-contracts shall be subject to the provisions of Chapter 1, Title XVII of the New
Civil Code.

NATURE AND EFFECTS OF OBLIGATIONS

From the viewpoint of the subject matter of the obligation, it may either be:

9. A Real Obligation to give a specific thing or to give a generic thing; or

10. A Personal Obligation to do or not to do.

OBLIGATION OF A PERSON OBLIGED TO GIVE SOMETHING

A person obliged to give something has the following obligation:

n. He is obliged to take care of it with the proper diligence of a good father of a family, EXCEPT if the law or
stipulation of the parties requires another standard of care. (Art. 1163, NCC)

OBLIGATION TO GIVE A DETERMINATE THING

The obligation to give a determinate thing includes the obligation to deliver all its accessions and accessories,
even though they may not have been mentioned. (Art. 1166, NCC)

WHEN IS A THING SPECIFIC OR DETERMINATE AND WHEN IS IT GENERIC OR INDETERMINATE?

A thing is a specific or determinate when it is capable of particular designation.

EFFECT OF OBLIGATION TO DELIVER A SPECIFIC THING AND A GENERIC THING

There is a great difference. The obligation to deliver a specific thing is extinguished by a fortuitous event,
EXCEPT in the following cases:

8. When expressly provided by law;

9. When expressly agreed upon by the parties;
10. When the nature of the obligation requires the assumption of risk. (Art. 1174, NCC)

EFFECT OF OBLIGATION
 If a person obliged to do something fails to do it, or if he does it in contravention of the tenor of the obligation, the
effects are as follows:

(22) The obligation shall be executed at his cost (debtor’s cost);

(23) It may be decreed that what has been poorly done be undone. (Art. 1167, NCC)

EFFECT OF OBLIGATION NOT TO DO

If the obligation consists in not doing, and the obligor does what has been forbidden him, it shall be undone at his
expense. (Art. 1168, NCC)

DEBTOR IS IN DEFAULT FROM THE TIME OF DEMAND

Those obliged to deliver or to do something are in default from the time of demand, judicial, or extrajudicial.
Without this demand, the debtor is not in default.

In the following instances, however, demand is not needed:

(3) When the obligation expressly so provides;

(4) When the law expressly so provides;
(5) When time is of the essence of the contract;
(6) When demand would be useless, as when the obligor has rendered it beyond his power to perform. ( Art. 1169,
NCC)

EFFECT IF THERE IS FRAUD, NEGLIGENCE OR DELAY

Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any
manner contravene the tenor thereof, ARE LIABLE FOR DAMAGES.

KINDS OF DAMAGES

(13) Moral damages – For moral anguish, besmirched reputation, sleepless nights, serious anxiety, etc.
(14) Exemplary damages – To deter others from committing the same act.
(15) Actual damages – To compensate the aggrieved party for actual losses suffered.
(16) Liquidated damages – Damages agreed upon by the parties.
(17) Temperate damages – When the exact amount of damages cannot be determined.
(18) Nominal damages – To vindicate a right. The assessment of nominal damages is left to the discretion of
the court.

RESPONSIBILITY ARISING FROM FRAUD (DOLO)

(3) It is demandable in all obligations. Any waiver of an action for future fraud is void. (Art. 1171, NCC)
(4) Liability due to fraud cannot be reduced by the courts.
(5) There is deliberate intention to cause damage.

RESPONSIBILITY ARISING FROM NEGLIGENCE (CULPA)

5. It is also demandable but such liability may be regulated by the courts according to the circumstances.
6. It can be reduced in certain cases.
7. There is no deliberate intention to the case damage.

KINDS OF CULPA (NEGLIGENCE)

7. Culpa contractual or Contractual negligence.

8. Culpa aquiliana or Quasi-delict
9. Culpa criminal or Criminal negligence.

DISTINCTION

CULPA CONTRACTUAL CULPA AQUILIANA CULPA CRIMINAL

(a.) There is a pre-existing (a.) There is no pre-existing (a.) There is no pre-existing

obligation (a contract, either obligation obligation.
expressed or implied)

(b.) Preponderance of evidence (b.) Preponderance of evidence (b.) The crime must be proven
is required. is needed. beyond reasonable doubt.

(c.) Defense of a good father of (c.) Defense of good father of a (c.) This defense cannot be
 a family in the selection and family in the selection of the interposed. If the employee is
supervision of employees is not employees is a proper defense of insolvent or incapable to pay the
proper and complete defense but the employer. civil aspect or liability, the
this can mitigate liability for employer is subsidiarily liable.
damages.

(d.) The existence of a contract (d.) The negligence of the (d.) The innocence of the
must be proved. If it is proved defendant must be proven. accused is presumed until the
and it is also proven that the contrary is proved.
contract was not complied with,
it is presumed that the debtor is
at default.

IS A PERSON RESPONSIBLE FOR THOSE EVENTS WHICH COULD NOT BE FORESEEN, OR WHICH
THOUGH FORESEEN ARE INEVITABLE?

As a rule, there is no liability for fortuitous event (that which could not be foreseen, or which even foreseen was
inevitable) EXCEPT IN THE FOLLOWING CASES:

10. When expressly specified by law;

11. When expressly stipulated by the parties; and
12. When the nature of the obligation requires the assumption of risk.

KINDS OF OBLIGATION

(7) Pure obligation as distinguished from conditional obligation.

(8) Alternative obligation as distinguished from facultative obligation.
(9) Joint obligation as distinguished from solidary obligation.
(10) Divisible obligation as distinguished from indivisible obligation.
(11) Obligation with a penal cause.

DEFINITION AND ILLUSTRATION

1. Pure Obligation – it is an obligation without a condition or a term and therefore, it is demandable at once.
EXAMPLE: I promise to pay you P100.00 upon demand.

2. Conditional Obligation – it is one with a condition.

EXAMPLE:
6. I will give a car to you if you pass the Bar Examinations in September 2003. In this example, the condition is a
suspensive one because the giving of the car depends on the results of the examination to be given in September
2003.
7. I will give you my car today but if you fail in the Bar Examinations to be given in September 2003, I will be the
owner of the car again. In this example, the condition is a resolutory one because the happening of the condition
extinguishes the obligation.

3. Alternative Obligation – It is one where out of the two or more prestations which will be given, only one is due.
EXAMPLE:
I will give you any of the following: My 24-karat gold ring worth P30,000.00, or my Lancer car, 1978
model, worth P30,000.00, or my residential lot in the province worth P30,000.00. In this example, I can give any
of the three properties I have mentioned and if I give one of them, I have complied with the obligation.

4. Facultative Obligation – It is one where only one prestation has been agreed upon but the obligor may render
another in substitution.
EXAMPLE:
I promise to give Marie my 14-karat gold ring worth P15,000.00 but it is agreed that I could give her a
secondhand car with the same value as a substitute.

5. Joint Obligation – In a joint obligation, an obligor answers only for a part of the entire liability.
EXAMPLE:
X and Y borrowed P1,000.00 from A and it is agreed that they are joint debtors of A. X will only be liable
to pay P500.00. This is so because they are joint debtors.

6. Solidary Obligation – Where both or all of the debtors can be held liable for the whole liability they have
incurred.
EXAMPLE:
X and Y borrowed P1,000.00 from A and it is agreed that they are solidary debtors. X can be held liable
for the whole P1,000.00 and so is Y. The creditor can run against both or against any one of them because they
are solidary debtors.

7. Divisible Obligation – A divisible obligation is an obligation which is capable of partial performance.

EXAMPLE:
A agreed to deliver 500 kilos of rice to B. Here, the subject matter is capable of partial performance in the
sense that the parties may agree that A will deliver 250 kilos of rice today and another 250 kilos of rice tomorrow.
 8. Indivisible Obligation – An obligation which is not capable of partial performance.
EXAMPLE:
A agreed to deliver DX Toyota Corolla to Y. Here, the subject matter is not capable of partial
performance because the car cannot be divided into two.

9. Obligation with a Penal Clause – In obligations with a penal clause, the penalty shall substitute the indemnity for
damages and the payment of interest in case of non-compliance.
EXAMPLE:
X agreed to finish the painting job of the Cultural Center Building within 60 days. It was stipulated that in
case of delay, X will be liable to pay a penalty of P1,000.00 per day of delay, if it turns out therefore that X fails
to finish the painting job within the 60 days and it was only on the 65 th day that he finished the job, X will be
liable to pay a penalty of P5,000.00.

EXTINGUISHMENT OF OBLIGATIONS

Obligations are extinguished by any of the following reasons:

Art. 1231. Obligations are extinguished:

(4) By payment or performance;

(5) By the loss of the thing due;
(6) By the condonation or remission of the debt;
(7) By the confusion or merger of the rights of creditor and debtor;
(8) By compensation
(9) By novation.

Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a resolutory

condition, and prescription, are governed elsewhere in the Code.

CHAPTER XI
SPECIAL CONTRACTS
I. SALE
DEFINITION OF A CONTRACT OF SALE
Contract of sale is a contract whereby one of the contracting parties obligates himself to transfer the ownership of
and to deliver a determinate thing, and the other to pay therefore a price certain in money or its equivalent. ( Art. 1458.
NCC)
ESSENTIAL ELEMENTS OF A CONTRACT OF SALE
The essential elements of a contract of sale are as follows:
CODE: C-S-C
C – Consent
S – Subject matter
C – Cause
13. Consent or meeting of the minds – the vendor agrees to sell and transfer ownership of his property to the vendee
in return for the price the latter agrees to pay the vendor.
14. Subject matter – the subject matter of the contract must be specific. If the parties have not agreed on the subject
matter of their transaction, they have no meeting of the minds.
15. Cause or consideration – the price may be in the form of money or its equivalent, as stated in the last-sentence
of Art. 1458. Therefore, a contract of sale may either be oral or in writing.
FORM OF A CONTRACT OF SALE
No particular form is needed to make a contract of sale valid as between the parties. For as long as all the essential
requisites for its validity are present, a contract of sale shall be valid and obligatory, regardless of its form. Therefore, a
contract of sale may either be oral or in writing.
However, there are contracts of sale which must be in writing like a sale of a “piece of land or any interest
therein,” or a sale of personal property if the price is P500.00 or more, or a sale which will be performed only after the
period of more than one year from the execution of the agreement.
BRIEF DISCUSSION OF THE ESSENTIAL REQUISITES
CONSENT – A contract of sale is perfected at the moment there is a meeting of minds and therefore it is
perfected by mere consent. Delivery of payment is not essential for the perfection of a contract of sale.
More specifically, the contract of sale is perfected at the moment there is a meeting of the minds upon the thing
which is the object of the contract and upon the price. (Art. 1475, 1st par.)
EXAMPLES:
 8. When A sells his car to B and they are facing each other when B agreed to pay P10,000.00, the price asked by A,
the contract of sale is perfected from the moment A accepted the offer of B unconditionally.
9. A placed an advertisement in a newspaper to sell his car. B, an interested buyer, called by telephone and told him
that he is amenable to pay the priced asked by A without condition. From that moment, there is a perfected
contract of sale.
10. A wrote a letter B and offered to sell his car to him. Upon receipt of said letter, B wrote a letter reply accepting
the offer of A and which letter was received by A on February 1, 2002 at 7:00pm. Before receiving the letter,
however, A wrote a letter to B and informed him that he is withdrawing his offer. Here, there is no perfected
contract of sale because prior to the date and time A received B’s letter acceptance, he had already withdrawn his
offer before he knew of the acceptance. Therefore, there is no meeting of the minds.
SUBJECT MATTER – The subject matter of the contract of sale must be specific or determinate, not generic or
indeterminate. As already stated in the last chapter, a specific thing is a thing which can be designated with particularity.
Future things may be the object of sale provided they are already in existence at the time of perfection of the
contract.
REQUISITES OF A VALID SUBJECT MATTER
(3) The subject matter must be specific or determinate.
(4) The subject matter must be lawful.
(5) The seller must have the right to transfer the ownership thereof at the time of delivery.
CAUSE OR CONSIDERATION – Without a lawful cause or consideration, the contract of sale is void. The
cause in a contract of sale is a price certain, in money or its equivalent.
OBLIGATIONS OF THE SELLER
The principal obligations of the seller are as follows:
19. To deliver the determinate object of the contract;
20. To transfer its ownership;
21. To warrant (against eviction and against hidden defects);
22. To pay for the expenses of the deed of sale; and
23. To preserve the thing from the moment of perfection up to the time of delivery.
OBLIGATIONS OF THE BUYER
The principal obligation of the buyer are as follows:
(6) To accept delivery; and
(7) To pay the price – at the time and place stipulated in the contract.
II. AGENCY
DEFINITION
Article 1868 of the New Civil Code defines agency as a contract whereby a person binds himself to render some
service or to do something in representation of or in behalf of another with the consent or authority of the latter.
In Rallos v. Go Chan & Sons Realty Corporation, et al., G.R. No. L-24332, Jan. 31, 1978, agency was defined as
“a relationship between two parties whereby one party called the principal, authorizes another, called the agent, to act for
and in his behalf in transactions with third persons.”
Article 1868 gives the principal. This, of course, is not necessarily true for there are cases when the agent acts in
behalf of himself and yet the principal would still bound such as when the contract involves things belongings to the
principal.
WHEN IS A CONTRACT OF AGENCY PERFECTED?
Agency is perfected by the meeting of the offer and acceptance upon the thing and the cause which are to
constitute the contract. (Art. 1319, NCC)
Acceptance must be made expressly or impliedly. It may be implied from the acts of the agent, from his silence
and from his inaction according to the circumstances. (Art. 1870, NC)
ACCEPTANCE OF AGENCY BETWEEN PERSONS WHO ARE PRESENT AND BETWEEN PERSONS WHO
ARE ABSENT
o. Between persons who are present – The acceptance of a person may also be implied if the principal delivers his
power of attorney to the agent and the latter receives it without any objection.
p. Between persons who are absent – The acceptance of the agency cannot be implied from the silence of the
agent, except:
18. When the principal transmits his power of attorney to the agent, who receives it without any objection.
19. When the principal entrusts to him by letter or telegram a power of attorney with respect to the business in which
he is habitually engaged as an agent, and he did not reply to the letter or telegram.
BASIC PRINCIPLES OF AGENCY
- It has the following characteristics:
o It is consensual, bilateral, nominate, principal, and preparatory to contract;
 o It is consensual because it is perfected by mere consent except when it involves the sale of land or
any interest therein. It is bilateral because the principal and the agent have reciprocal obligations. It is
nominate because a contract of agency is preparatory to a subsequent contract.
- The appointment of an agent by the principal is based on trust. Therefore, the agent is expected to act within
the scope of his authority and to act in behalf of his principal.
- As already explained above, a situation may arise when the agent is authorized by the principal but he acts in
behalf of himself. It is also possible that the agent is not authorized but he acts in behalf of his principal.
Because of these possibilities, the following situations may arise, to wit:
o The agent acts with authority and in behalf of the principal – The transaction is valid and the
principal is bound by the acts of the agent. The agent assumes no personal liability unless he
deliberately bound himself.
o The agent is authorized by the principal but he acts in behalf of himself, not in behalf of the
principal – As a rule, the principal is not bound by the acts of the agent except if it involves things
belonging to the principal.
o The agent acts without authority but in behalf of the principal – The transaction is unenforceable
but it may be ratified. If ratified, the contract is validated from the very beginning.
o The agent acts without authority and in his own behalf – The transaction is valid, whether or not the
subject matter belongs to the principal provided that the agent can legally transfer the ownership of
the thing at the time of delivery. Otherwise, he will be held liable for eviction.
OBLIGATIONS OF AN AGENT
Art. 1881. To act within the scope of his authority.
Art. 1884. To carry out the agency and be liable for damages in case of non-performance; and to finish the business
already begun on the death of the principal, should delay entail any danger.
Art. 1886. To advance necessary funds, if stipulated, except if principal is insolvent.
Art. 1887. To act in accordance with the instructions of the principal (in default thereof, he shall do all that a good
father of a good family would do, as required by the nature of the business).
Art. 1889. To be liable for damages, if there being a conflict between his interests and that of the principal, he
prefers his own.
Art. 1891. To render an account of his transaction and to deliver to the principal whatever he may have received by
virtue of the agency even though it may not be owing to the principal (stipulation exempting the agent
from his obligation is VOID).
OBLIGATIONS OF THE PRINCIPAL (FROM Arts. 1910, 1912, and 1913)
Code: CARI
C – Comply
A – Advance
R – Reimburse
I – Indemnify
Art. 1910. To comply with all the obligations which the agent may have contracted within the scope of his authority.
Art. 1912. To advance to agent, if latter requests (1st par.) the sums necessary to execute the agency.
To reimburse the agent for all advances he (2 nd par.) made, even if business was not successful provided
that the agent is free from fault.
Art. 1913. To indemnify the agent for all damages which the execution of agency may have caused the agent without
his fault or negligence.
CASES WHEN PRINCIPAL IS NOT LIABLE FOR EXPENSES INCURRED BY AGENT
Article 1918 provides as follows:
12. If the agent contravenes instructions of the principal unless the latter wishes to avail himself of the benefit
derived from the contract;
13. When expenses were due to the fault of the agent;
14. When the agent incurred them knowing that unfavorable result would ensue, if the principal was not
aware thereof and
15. When stipulated that the agent bears the expenses, or that the agent bears the expenses, or that the agent
would be allowed only a certain sum.
IMPORTANT ARTICLES TO REMEMBER
Art. 1916. When two persons contract with regard to the same thing, one of them with the agent and the other
with the principal, and the two contracts are incompatible with each other, that of prior date shall be preferred, without
prejudice to the provisions of Article 1544.
Art. 1544. If the same thing should have been sold to different vendees, the ownership shall be transferred to the
person who may have first taken possession thereof in good faith, if it should be movable property.
 Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first
recorded it in the Registry of Property.
Should there be no inscription, the ownership shall pertain to the person who in good faith was first in the
possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith.
PREFERENCE:
21. IF PROPERTY IS MOVABLE
1. To the first possessor in good faith
22. IF THE PROPERTY IS IMMOVABLE
1. To the first registrant in good faith;
2. To the first possessor in good faith, if there is no inscription; and
3. To the possessor who represents the oldest title, if there is no first registrant and first possessor in good
faith.
CODE: RPO
R – Registrant in good faith
P – Possessor in good faith
O – Oldest title
III. PARTNERSHIP
DEFINITION
By the contract of partnership, two (2) or more persons bind themselves to contribute money, property, or
industry to a common fund, with the intention of dividing the profits among themselves. It may also be formed to exercise
a possession. (Art. 1767, NCC)
BASIC PRINCIPLES TO REMEMBER
13. Partnership is based on MUTUAL TRUST by or among the partners. (delectus personarum)
14. Like a corporation, it has a personality separate and distinct from the individual partners. (Art. 1768, NCC)
15. The partners may contribute money, property or industry to a common fund.
16. A partnership may be constituted in any form except where immovable property or real rights are contributed
thereto, in which case, a public instrument shall be necessary. (Art. 1771, NCC)
17. A contract of partnership is void, whenever immovable property is contributed thereto, if an inventory of said
property is not made, signed by the parties, and attached to the public instrument. (Art. 1773)
NECESSARY FORMALITIES IN CREATING A PARTNERSHIP
(7) A contract of partnership having a capital of P3,000.00 or more, in money or property, shall appear in a public
instrument and recorded in the Securities and Exchange Commission. However, even if this is not complied with,
the partnership and the members thereof remain liable to third persons. (Art. 1772, NCC)
(8) If what is contributed is real property, an inventory should be attached and there must be a public instrument
regarding the partnership and an inventory of the said property signed by the parties should be attached to the
public instrument. If this is not complied with, the partnership is void and has no juridical personality even as
between the parties.
KINDS OF PARTNERSHIP
According to liability, a partnership may be general or limited:
GENERAL PARTNERSHIP – A partnership where all the parties are general partners who are liable even to
extent of their individual properties, after the exhaustion of the partnership assets.
LIMITED PARTNERSHIP – A partnership where one partner is a general partner and the others are limited
partners. A limited partner is liable only to the extent of his contribution.
As to its object, a partnership is either universal or particular.
UNIVERSAL PARTNERSHIP – This may refer to universal partnership of all present property or to a universal
partnership of all profits.
9. Universal partnership of all present property – a partnership of all present property is that in which the partners
contribute all the property which actually belongs to them to a common fund, with the intention of dividing the
same among themselves, as well as all the profits which they may acquire therewith. (Art. 1779, 1st par., NCC)
10. Universal partnership of all profits – comprises all that the partners may acquire by their industry or work during
the existence of the partnership. (Art. 1779, 2nd par., NCC)
PARTICULAR PARTNERSHIP – A particular partnership has for its object determinate things, or the exercise
of a profession or vocation.
KINDS OF PARTNERS
A partner may be a capitalist partner or an industrial partner insofar as their contribution to the partnership is
concerned.
A partner may be a general partner or a limited partner insofar as liability is concerned.
A person may be a managing partner, silent partner, liquidating partner or a secret partner insofar as participation
is concerned.
DEFINTION
(4) Capitalist Partner – The partner who contributes money or property to the partnership.
(5) Industrial Partner – The partner who contributes his industry.
(6) General Partner – A partner who is liable beyond the extent of his contribution to the partnership.
(7) Limited Partner – A partner who is liable only to the extent of his contribution.
(8) Secret Partner – A partner whose connection with the firm is kept secret.
(9) Silent Partner – A partner who does not take active participation in the management of the partnership
although he may be known to be a partner.
(10) Liquidating Partner – A partnership who takes charge of liquidating the affairs of the partnership after its
dissolution.
IV. LOAN
DEFINITION
By the contract of loan, one of the parties delivers to another either something not consumable so that the latter
may use the same for certain time and return it, in which case the contract called a commodatum; or money or other
consumable thing, upon the condition that the same amount of the same kind and quality shall be paid, in which case the
contract is simply called a loan mutuum.
Commodatum is essentially gratuitous.
In commodatum, the bailor retains the ownership of the thing loaned, while in simple loan, ownership passes to
the borrower. (Art. 1993, NCC)
KINDS OF LOAN
(q) Commodatum – one where the bailor (lender) delivers a non-consumable thing so that the bailee
(borrower) must use it for a certain time and return it.
EXAMPLE: A borrowed B’s car which he will use for three (3) days while taking a vacation in Baguio. B agreed
to lend his car to A for free. A should return B’s car.
(r) Mutuum or Simple Loan – one where or other consumable thing is loaned with the obligation of
paying the same amount of the same kind/quality.
DISTINCTIONS
6. COMMODATUM
(5) Essentially gratuitous.
(6) Ownership is retained by the bailor or lender.
(7) It is loan for use or temporary possession.
(8) It involves real or personal property.
(9) The same thing that was borrowed shall be returned.
7. MUTUUM
20. May be gratuitous or onerous.
21. Ownership goes to the borrower.
22. It is a loan for consumption.
23. It refers to personal property.
24. Same amount that was borrowed shall be returned.
8. BASIC PRINCIPLES TO REMEMBER
(24) A contract of loan is a real contract. Therefore, it is perfected upon delivery of the thing loaned.
(25) Delivery of the thing loaned is essential because the purpose of the contract is either to transfer its use or
its ownership.
(26) Commodatum is purely personal and the borrower cannot lend the thing he borrowed to another.
V. PLEDGE AND MORTGAGE
DEFINITION
Pledge is a real contract whereby one person (called pledgor) delivers a movable to another (called pledgee) as
security for the principal obligation and with the understanding that when the obligation is paid or fulfilled, the thing
pledged shall be returned by the pledgor to the pledge.
Mortgage is a real contract whereby one person (called the mortgagor) offers his real property to another (called
mortgagee) as security for the principal obligation and with the understanding that when the obligation is paid or fulfilled,
the mortgage or encumbrance on the said property shall be cancelled and released.
PROVISIONS COMMON TO PLEDGE AND MORTGAGE
Art. 2085. The following requisites are essential to the contracts of pledge and mortgage:
VI. That they be constituted to secure the fulfillment of a principal obligation.
VII. That the pledgor or mortgagor be the absolute owner of the thing pledged or mortgaged;
VIII. That the persons constituting the pledge or mortgage have the free disposal of their property, and in the
absence thereof, that they be legally authorized for the purpose.
Third persons who are parties to the principal obligation may secure the latter by pledging or mortgaging their own
property.
DISTINCTIONS
 REAL MORTGAGE PLEDGE
11. Constituted on real property. (Art. 2124) (23) Constituted on personal property.
(Art. 2094)
(24) As a rule, mortgagor retains the 2. The thing pledged must be placed in the
property. possession of the creditor, or of a third person
by common agreement.
(25) Not valid against third persons if 3. Not valid against third persons unless a
not registered (Art. 2125) description of the thing pledged appear in a
public instrument.

DISTINCTIONS
REAL MORTGAGE CHATTEL MORTGAGE
4. Constituted in immovables. 1. Constituted on movables
5. May guarantee future obligations. 2. Cannot guarantee future obligations

VI. ANTICHRESIS
DEFINITION
Article 2132 of the New Civil Code defines antichresis as follows: x x x “By the contract of antichresis, the
creditor acquires the right to receive the fruits of an immovable of his debtor, with the obligation to apply them to the
payment of the interest, if owing, and thereafter to the principal of his credit x x x.”
DISTINCTIONS
PLEDGES ANTICHRESIS
11. Pledge is constituted on personal 1. Antichresis is constituted on immovable
property. property.
12. Not applicable (no fruits). 2. The creditor has the right to the fruits of
the immovables.

DISTINCTIONS
ANTICHRESIS MORTGAGE
(10) The creditor acquires the right to 1. The creditor has no right to the fruits.
receive the fruits of an immovable of
his debtor.

BASIC PRINCIPLES
(3) The amount of the principal and of the interest shall be specified in writing, otherwise, the contract of antichresis
is VOID. (Art. 2134, NCC)
(4) The actual market value of the fruits at the time of application thereof to the interest and principal shall be
measured of such application.
(5) The creditor is obliged to pay the taxes and charges upon the estate unless otherwise stipulated.
VII. COMMON CARRIERS
DEFINITION
Article 1732 of the New Civil Code defines common carriers as follows: x x x “Common carriers are persons,
corporations, firms, or associations engaged in the business of carrying or transporting passengers or goods or both, by
land, water, or air, for compensation offering their services to the public.”
COMMON CARRIER PRIVATE CARRIER
31. A common carrier offers its services 1. It is not available to the public but only to
to the public. (Art. 1732, NCC) certain persons

CRITERIA AS TO WHETHER A CARRIER IS COMMON OR PRIVATE

If the carrier is obliged to carry all persons applying for passage and there is no legal excuse to refuse, it is public
carrier. Otherwise, it is a private carrier.
VIGILANCE REQUIRED OF A COMMON CARRIER
22. It is bound to observe EXTRAORDINARY DILIGENCE in the vigilance over the goods.
23. It is bound to observe EXTRAORDINARY DILIGENCE for the safety of its passengers.
EXTRAORDINARY VIGILANCE OVER THE GOODS
Common carriers are responsible for the LOSS, DESTRUCTION or DETERIORATION of the goods unless
the same is due to any of the following causes.
 8. Flood, storm, earthquake, lightning, or other natural disaster or calamity.
9. Act of the public enemy in war, whether international or civil.
10. Act or omission of the shipper or owner of the goods.
11. Order or act of competent public authority.
EXTRAORDINARY DILIGENCE FOR THE SAFETY OF PASSENGERS

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, which a due regard for all the circumstances.