Bar Q & A, Civil Law

SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION QUESTIONS IN CIVIL LAW UP LAW CENTER


I.
State whether the following marital unions are valid, void, or voidable, and give the corresponding justifications for your answer:

(a) Ador and Becky’s marriage wherein Ador was afflicted with AIDS prior to the marriage. (2%)

SUGGESTED ANSWER
(a) The marriage is voidable, because Ador was afflicted with a serious and incurable sexually-transmitted disease at the time of marriage. For a marriage to be annulled under Article 45(6), the sexually-transmissible disease must be: 1) existing at the time of marriage; 2) found to be serious and incurable; and 3) unknown to the other party. Since Ador was afflicted with AIDS, which is a serious and incurable disease, and the condition existed at the time of marriage, the marriage is voidable, provided that such illness was not known to Becky.

(b) Carlos’ marriage to Dina which took place after Dina had poisoned her previous husband Edu in order to free herself from any impediment in order to live with Carlos. (2%)

SUGGESTED ANSWER

(b) The marriage of Carlos to Dina is void for reasons of public policy, Article 38(9) of the Family Code provides that marriage between parties where one, with the intention to marry the other, killed that other person’s spouse or his or her own spouse is void from the beginning for reasons of public policy.

ALTERNATIVE ANSWERS

(c) Eli and Fely’s marriage solemnized seven years after the disappearance of Chona, Eli’s previous spouse, after the plane she had boarded crashed in the West Philippine Sea (2%)

SUGGESTED ANSWERS

(C) The marriage is void under Article 35(4) in relation to Article 41 of the Family Code. The requisites of a valid marriage under Article 41 are as follows: 1) the prior spouse had been absent for four consecutive years, except when the disappearance is in danger of death which only requires two years; 2) the present spouse had a well-founded belief that the absent spouse was already dead; and 3) the spouse present must institute a summary proceeding for declaration of presumptive death.
There is nothing in the facts that suggest that Eli instituted a summary proceeding for declaration of presumptive death of her previous spouse and this cannot be presumed. Thus, the exception under Article 35(4) is inapplicable and the subsequent marriage is void.

ALTERNATIVE ANSWER :

c) If the marriage was celebrated under the New Civil. Code, the marriage would be valid, as ho declaration of presumptive death is necessary under Article 391 of the said Code.

(d) David who married Liria immediately the day after obtaining a judicial decree annulling his prior marriage to Elisa. (2%)


SUGGESTED ANSWERS

(d) The marriage is valid as there were no facts showing that David and Elisa have properties and children, which would render the marriage void under Article 53 of the Family Code in relation to Article 52. In addition, David and Lina have no impediment to marry.

ALTERNATIVE ANSWER

(d) If the spouses have properties and children, the marriage is void under Article 53 of the Family Code in relation to Article 52. For a marriage subsequent to a judgment of annulment of a previous marriage to be valid, the properties of the spouses must have been partitioned and distributed, the presumptive legitimes of children, if any, must have been delivered, and the aforementioned facts must be recorded in the civil registry and registries of property. The marriage was entered into the day after the obtaining of a judicial decree of annulment and it would have been impossible for David to comply with the requirements in such a short time. Therefore, the marriage is void.

(e) Marriage of Zoren and Carmina who did not secure a marriage license prior to their wedding, but lived together as husband and wife for 10 years without any legal impediment to marry.(2%)

SUGGESTED ANSWER:

(e) If Zoren and Carmina lived together as husband and wife for 10 years prior to their marriage, then the marriage is valid, despite the absence of the marriage license. An exception to the rule that a marriage shall be void if solemnized without license under Article 35(3) is that provided for under Article 34 of the Family Code. When a man and woman have lived together as husband and wife for at least 5 years and without any legal impediment to marry each other, they may celebrate the marriage without securing a marriage license.

II.

In 1960, Rigor and Mike occupied two separate but adjacent tracts of land in Mindoro. Rigor’s tract was classified as timber land while Mike’s was classified as agricultural land. Each of them fenced and cultivated his own tract continuously for 30 years. In 1991, the Government declared the land occupied by Mike as alienable and disposable, and the one cultivated by Rigor as no longer intended for public use or public service.
Rigor and Mike now come to you today for legal advice in asserting their right of ownership of their respective lands based on their long possession and occupation since 1960.
(a) What are the legal consequences of the 1991 declarations of the Government respecting the lands? Explain your answer; (29)

SUGGESTED ANSWER


(a) As to the land occupied by Mike, the same remains a property of the public dominion. According to jurisprudence, the classification of the property as alienable and disposable land of the public domain does not change its status as property of the public dominion, There must be an express declaration by the State that the public dom in ion property is no longer intended for public service or the development of the national wealth or that the property has been converted into pat Fimonial. Without such express declaration, the property, even if classified as alienable or disposable, regatas property of the public dominion (Heirs of Mario Malabanan v Republic GR No. 179987, April 29, 2009 and September 3, 2013).

As to the land occupied by. Rigor, the declaration that it is no longer intended for public use or public service converted the same into · patrimonial property provided that such express declaration was in the form of a law duly enacted by Congress or in a Presidential Proclamation in cases where the President was duly authorized by law. According to jurisprudence, when public land is no longer intended for public use, public service or for the development of the national wealth it is thereby effectively removed from the ambit of public dominion and converted into patrimonial provided that the declaration of such conversion must be made in the form of a law duly enacted by Congress or by a Presidential proclamation in cases where the President is duly authorized by law to that effect (Heirs of Mario Malabanan v Republic, G.R. No. 179987, April 29, 2009 and September 3, 2013).

b) Given that, according to Section 48(b) of Commonwealth AC No. 141, in relation 10. Section 14(1) of Presidential Decree No. 1529, the open, continuous, exclusive, and notorious possession and occupation of alienable and disposable lands of the public domain as basis for judicial confirmation of imperfect title must be from June 12, 1945, or earlier, may Mike nevertheless validly base his assertion of the right of ownership on prescription under the Civil Code? Explain your answer. (4%)


SUGGESTED ANSWER

(6) No, because the land remains property of public dominion and, therefore, not susceptible to acquisition by prescription. According to jurisprudence, the classification of the subject property as alienable and disposable land of the public domain does not change its status as property of the public dominion. In order to convert the property in to patrimonial, there must be an express declaration by the State that the public dominion property is no longer intended for public service or the development of the national wealth or that the property has been converted into patrimonial. Without such express declaration, the property, even if classified as alienable or disposable, remains property of the public dominion, and thus incapable of acquisition by prescription (Heirs of Mario Malabanan v. Republic, GR No. 179987, April 29, 2009 and September 3, 2013).
Here, the declaration of the property into alienable and disposable land of the public domain in 1991 did not convert the property into patrimonial in the absence of an express declaration of such conversion into patrimonial in the form of a law duly enacted by Congress or by a Presidential proclamation in cases where the President is duly authorized by law to that effect.


(c). Does Rigor have legal basis for his application for judicial confirmation of imperfect title based on prescription as defined by the Civil Code given that, like Mike his open continuous, ‘exclusive, and notorious possession and occupation was not since June 12, 1945, or earlier, and his tract of land was timberland until the declaration in 1991. Explain your answer. (4%)


SUGGESTED ANSWER

(c) None, because Rigor’s possession was short of the period required by the Civil Code for purposes of acquisitive prescription which requires ten (10) years of continuous possession, if possession was in good faith and with a just title,or thirty years, in any event. While property may be considered converted into patrimonial because of the 1991 declaration that it is no longer intended for public use or public service (provided that the declaration be in the form of law duly enacted by Congress or by a Presidential proclamation in cases where the President is duly authorized by law to that effect), Rigor failed to complete the?3@year period required by law in case of extraordinary prescription Since the property was converted into patrimonial only in 1991, the period of prescription commenced to run beginning that year only Rigor’s possession prior to the conversion of the property Into patrimonial cannot be counted for the purpose of completing the prescriptive period because prescription did not operate against the State at that time, the property then being public dominion property (Heirs of Mario Malabanan v. Republic, G.R. No. 179987 April 29, 2009 and September 3, 2013). Rigor may not likewise acquire ownership by virtue of the shorter 10-year ordinary prescription because his.possession was not in good faith and without just title.


III.

Josef owns a piece of land in Pampanga. The National Housing Authority (NHA) sought to expropriate the property for its socialized housing project. The trial court fixed the just compensation for the property at P50 million. The NHA immediately deposited the same at the authorized depository bank and filed a motion for the issuance of a writ of possession with the vial court. Unfortunately, there was delay in the resolution of the motion. Meanwhile, the amount deposited earned interest.

SUGGESTED ANSWER

When Josef sought the release of the amount deposited NHA argued that Josef should only be entitled to P50 million.
Who owns the interest earned? (3%)

Josef owns the interest earned. In Republic v Holy Trinity Kealty Development Corp., (G.R. No. 172410, April 14, 2008), the Supreme Court has declared that upon deposit by the appropriator of the amount fixed for just compensation, the owner whose property is sought to be expropriated becomes the owner of the deposited amount. Any interest, therefore, that accrues to such deposit belongs to the owner by right of accession. In the Case at bar, Josef became the owner of the amount deposited by NHA; thus, any interest that accrues therefrom pertains to Josef by right of accession.

[Note: In the case of NPC v. Heirs of Romoran, G.R. No. 193455, June 13, 2016, the Supreme Court ruled that the imposable rate of interest is $2% per annum from the time of the taking until June 30, 2013, and 6% per annum from July 1, 2013 until full payment.]

IV.

(a) Distinguish antichresis from usufruct. (3%)

SUGGESTED ANSWER:

(a) (1) Antichresis is a real security transaction wherein the creditor acquires the right to receive the fruits of an immovable of his debtor, and the obligation to apply them to the payment of the interest, if owing, and thereafter to the principal of his credit (Article 2132, NCC) On the other hand, a usufruct is a real right which authorizes its holder to enjoy the property of another with the obligation of preserving its form and substance, unless otherwise provided.
(2) Antichresis is always created by contract, while usufruct need not arise from contract, because it may also be constituted by law or by other acts inter vivos, such as donation, or in a last will and testament, or by prescription.
(3) The subject matter of antichresis is always a real prop erty while the subject matter of usufruct may either be real property or personal property,
(4) Both create real rights but antichresis is an accessory contract, while usufruct when created by contract is a principal contract,
(5) During the usufruct, the fruits belong to the usufructurý not the naked owner, while the antichretie creditor has the right to receive the fruits with the obligation to apply the fruits to the interest, if owing, and thereafter to the principal of the credit (Art. 2132, NCC).
(6) In antichresis the amount of the principal and the inter est charge must be in writing in order to be valid (Article 2134, NCC) : while there is no particular form required to constitute a valid usufruct.

(b) Distinguish commodatum from mutuum. (3%)

SUGGESTED ANSWER


(b) (1) In commodatum, the creditor or ballor delivers to the debtor or bailee consumable or non-consumable property so that the latter may use the same for a certain time and must return the same thing (Article 1933, NCC). In mutuum, the creditor delivers to the debtor money or other consumable thing upon the condition that the same amount of the same kind and quality is paid (Article 1933, NCC).
(2) The subject matter of commodatum maybe a movable or immovable thing, which is ordinarily non-consumable (if the thing: borrowed is consumable, it is merely for display or exhibition), while the subject matter of mutuum is either money or consumable
3) Commodatum is essentially gratuitous, while mutuum may be gratuitous or with a stipulation to pay interest
(4) In commodatum, there is no transmission of ownerships of the thing borrowed then while in mutuum, the borrower acquires ownership of the thing loaned.
(5) In commodatum, the same thing borrowed is required to : be returned while in mutuum, the borrower discharges his obligation not by returning the identical thing loaned, but by paying its equivalent in kind, quality, and quantity.
[Note: It is suggested that any three (3) of the above should merit full points).

V.

Jacob has owned a farm land in Ramos, Tarlac. In 2012, Liz surreptitiously entered and cultivated the property. In 2014, Jacob discovered Liz’s presence in and cultivation of the property. Due to his being busy at : tending to his business in Cebu, he tolerated Liz’s cultivation of the property. Subsequently, in December 2016, Jacob wanted to regain possession of the property; hence, he sent a letter to Liz demanding that she vacate the property.” Liz did not vacate despite the demand.
Jacob comes to enlist your legal assistance to bring an action against Liz to recover the possession of the property

What remedies are available to Jacob to recover possession of his property under the circumstances? Explain your answer. (4%)

SUGGESTED ANSWER

The remedy available to Jacob is accion publiciana, or an action or the recovery of the better right of possession or possession as a réal right. It also refers to an ejectment suit filed after the expiration of one year from accrual of the cause of action or from the unlawful withholding of possession of the realty
Since the entry made by Liz is through stealth, Jacob could have filed an action for forcible entry. Ordinarily, the one-year period within which to bring an action for forcible entry is generally counted from the date of actual entry on the land, except that when the entry is through stealth, the one-year period is counted from the time the plaintiff learned thereof. Here, since more than one year had elapsed since Jacob learned of the entry made by Liz through stealth, the action that may be filed by Jacob is no longer forcible entry, but an accion publiciana (Canlas y Tubil, G.R. No. 184285, September 25, 2009; Valdez v. CA, G.R. No. 132424, May 4, 2006).
ALTERNATIVE ANSWER:

Jacob can file an action for unlawful detainer against Liz to re gain possession of the property. An action for unlawful detainer is proper when the defendant’s initial right to possession of the property has terminated but he unlawfully with holds possession thereof. It has to be filed within one year from the termination of his right to possession. Although Liz sürreptitiously entered in 2012, her possession became lawful when Jacob discovered it and allowed her to continue possession by tolerance in 2014. Liz right to possession terminated in December 2016 when Jacob. demanded her to vacate the property. Since today is November 2017, it is still within one year from the termination of Lit right to possession. Therefore, Jacob can file an action for unlawful detainer.

VI.

Tyler owns a lot that is enclosed by the lots of Riley to the North and East, of Dylan to the South, and of Reece to the West. The current route to the public highway is a kilometer’s walk through the northern lot of Riley, but the route is a rough road that gets muddy during the rainy season, and is inconvenient because it is only 2.5 meters wide. Tyler’s nearest access to the public highway would be through the southern lot of Dylan.

May Dylan. be legally required to afford to Tyler a right of way through his property? Explain your answer.(4%)

SUGGESTED ANSWER

Dylan may not be legally required to afford Tyler a right of way through his property, because Tyler already has an adequate outlet to the public highway through his Riley’s lot.

One of the requisites for a compulsory grant of right of way is that the estate of the claimant of a right of way must be isolated and
without adequate outlet to a public highway. The true standard for the grant of compulsory right of way is adequacy of outlet going to a public highway and not the convenience of the dominant estate. In the case at bar, there is already an existing adequate outlet from the dominant estate to a public highway. Even if said outlet be inconvenient, the need to open up another legal easement or servitude is entirely unjustified (Article 649, NCC, Dichoso Jr. v. Marcos, G.R. No. 180282, April 11, 2011; Costabella Corp. v. CA, G.R. No. 80511, January 25, 1991).

VII

Alice agreed to sell a parcel of land with an area of 500 square meters registered in her name and covered by her TCT No. 12345 in favor of Bema dette for the amount of P900,000.00. Their agreement dated October 15, 2015 reads as follows:
I, Bernadette, agree to buy the lot owned by Alice covered by TCT No. 12345 for the amount of P900,000.00 subject to the following schedule of payment:
Upon signing of agreement P100,000.00
November 15, 2015 P200,000.00
December 15, 2015 P200,000.00
January 15, 2016 P200,000.00
February 15, 2016 P200,000.00

Title to the property shall be transferred upon full payment of P900,000.00 on or before February 13, 2016.

After making the initial payment of P100,000.00 on October 15, 2015, and the second installment of P200,000.00 on November 15, 2015, Bernadette defaulted despite repeated demands from Alice.
In December 2016, Bernadette offered to pay her balance but Alice refused and told her that the land was no longer for sale. Due to the refusal, Bernadette caused the annotation of her adverse claim upon TCT No. 12345 on December 19, 2016. Later on, Bernadette discovered that Alice had sold the property to Chona on February 5, 2016, and that TCT No. 12345 had been cancelled and another one issued (TCT No. 67891) in favor of Choda as the new owner.
Bernadette sued Alice and Chona for specific performance, annulment of sale and cancellation of TCT No. 67891. Bernadette insisted that she had entered into a contract of sale with Alice; and that because Alice had engaged in double sale, TCT No. 67891 should be cancelled and another title be issued in Bernadette’s favor.

(a) Did Alice and Bernadette enter into a contract of sale of the lot covered by TCT No. 12345? Explain your answer. (4%)

SUGGESTED ANSWER .


(a) Yes, they entered into a contract of sale which is a conditional sale. Article 1458(2) provides that a contract. of sale may be absolute or conditional.
In a contract of conditional sale, the buyer automatically acquires title to the property upon full payment of the purchase price. This transfer of title is “by operation of law without any further act having to be performed by the seller. In a contract to sell, transfer of title to the prospective buyer is not automatic, The prospective seller (must) .convey title to the property (through A deed of conditional sale (Olivarez Realty Corporation & Castillo, G.R. No. 196251, July 9, 2014).
In this case, it was stipulated that “Title to the property shall be transferred upon full payment of P900,000 on or before February 15, 2016.” Thus, they entered into a conditional sale.
ANOTHER SUGGESTED ANSWERS

(a) No, because in the agreement between Alice and Bērnadette, the ownership is reserved in the vendor and is not to pass to the vendee until.lull payment of the purchase price, which makes the contract one of contract to sell and not a contract of sale.
Distinctions between a contract to sell and a contractor sale are . well-established in jurisprudence. In a contract of sale, the title to the property passes to the vendee upon the delivery of title thing sold; in a contract to sell, ownership is, by agreement, reserved in the vendor and is not to pass to the vendee until full payment of the purchase price. Otherwise stated, in a contract of sale, the vendor losts ownership over the property and cannot recover it until and unless the contract is resolved or rescinded; whereas, in a contract to sell, title is retained by the vendor until full payment of the price. In the latter contract, payment of the price is a positive suspensive condition, failure of which is not a breach but an event that prevents the obligation of the vendor to convey title from becoming effective (Saberon , Ventanilla, J., G.R. No. 192669, April 21, 2014).

In this case, the contract entered between the parties is a contract to set because Ownership is retained by the vendor and is not to pass to the vendee until full payment of the purchase price.

b). Did Alice engage in double sale of the property? Explain your answer. (4%)

SUGGESTED ANSWER
(b) No, Alice did not engage in double sale. Article 1544 of the Civil Code contemplates contracts of sale which are absolute sales. The sale to Bernadette, however, is a conditional sale wherein the condition was not fulfilled. In a conditional sale, thé non-fulfillment of the condition prevents the obligation to sell from arising and, thus, the prospective seller retains ownership without further remedies by the buyer. Since title is reserved to Alice until Bernadette pays the full price for the loc the contract in this case is a conditional sale.

ANOTHER SUGGESTED ANSWER

(b). No, because there was no previous sale of the same prop erty prior to its sale to Chona. Despite the earlier transaction of Alice with: Bernadette, the former is not guilty of double sale because the previous transaction with Bernadette is characterized as a contract to sell. In a contract to sell, there being 10 previous sale of the property, a third person buying such property despite the fulfillment of the suspensive condition such as the full payment of the purchase price, for instance, cannot be deemed a buyer in bad faith and the prospective buyer cannot seek the relief of reconveyance of the property. There is no double sale in such case. Title to the property will transfer to the buyer after registration be cause there is no defect in the owner-sellers title per se, but the latter, of course, may be sued for damages by the intending bøyer (Coronet v. CA, G:R. No. 103577, October 7, 1996).

VIII.

Pedro had worked for 15 years in Saudi Arabia when he finally decided to engage in farming in his home province where his 10-hectare failand valued at P2,000,000 was located. He had a ready P3,000,000, savings from his long stint in Saudi Arabia
Eagerly awaiting Pedro’s arrival at the NAIA were his aging parents Modesto and Jacinta, his common-law spouse Veneranda, their three children, and Alex, his child by Carol, his departed legal wife. Sadly for all of them, Pedro suffered a stroke because of his over-excitement just as the plane was about to land, and died without seeing any of them.
The farmland and the savings were all the properties he left.

(a) State who are Pedro’s legal heirs, and the shares of each legal heir to the estate? Explain your answer. (4%)


SUGGESTED ANSWER

(a) Pedro’s legal heirs are Alex, who is his legitimate child by his deceased wife (Article 979, NCC), and his three children by Veneranda, who are his illegitimate children (Article-873, NCC). Modesto and Jacinta, his parents, are excluded by Alex, bis legitimate child. Veneranda, as a common-law spouse, is not among Pedro’s legal heirs. Assuming that the farm land and savings are the exclusive properties of Pedro, Pedro’s estate amounts to P5,000,000. Alex is entitled to one-half of Pedro’s estate, amounting to P2,500,000, while three illegitimate children divide the re maining one-half equally, such that each will receive P833,333.33.

(b). Assuming that Pedro’s will is discovered soon after his funeral: In the will, he disposed of half of his estate in favor of Veneranda, and the other half in favor of his children and his parents in equal shares. Assuming also that the will is admitted to probate by the proper court. Are the testamentary dispositions valid and effective under the law on succession? Explain your answer. (4%).

SUGGESTED ANSWER

(b) The testamentary dispositions are invalid insofar as they impair the legitimes of Pedro’s compulsory heirs. Pedro’s compulsory heirs are Alex and his three illegitimate children (Article 887 NCC). Alex, as Pedro’s sole legitimate child, is entitled to a legitime to one-half of his father’s estate, amounting to P2,500,000 (Article 888, NCC). The three illegitimate children of Pedro are theoretically entitled to a legitime equal to one-half of the legitime of Alex, amounting to P1,250,000 each or P3,750,000 total, but as this exceeds the balance of the estate amounting to P2,500,000, the latter amount must be divided equally among the three, amounting to P833,333:33 each. The other testamentary dispositions to Veneranda and Pedro’s parents, may not be given effect, as there is nothing left of the estate to distribute
[Note: If the farmland and the P3M savings were acquired during the cohabitation These are owned in common by both of them (Art. Family Code) One half of the P5M belongs to Veneranda as her share in the co-ownership.

IX.

Danny and Elsa were married in 2002. In 2012, Elsa left the conjugal home and her two minor children with Danny to live with her paramour. In 2015 Danny sold without Elsa’s consent a parcel of land registered in his name that he had purchased prior to the marriage. Danny used the proceeds to pay for her children’s tuition fees.

Is the sale valid, void or voidable? Explain your answer. (3%)


SUGGESTED ANSWER

The sale of the parcel of land is void. There is no indication in the facts that Danny and Elsa executed a marriage settlement prior to their marriage. As the marriage was celebrated during the effectivity of the Family Code and absent a marriage settlement, the property regime between the spouses is the Absolute Community of Property (Article 75, FC).

Under the Absolute Community of Property regime, the parcel of
tu as the pro into the marriage even if said property were registered in the name of Danny (Article 91, FC). In addition, said property do not fall under any of the exceptions under Article 92. Therefore, the sale of the property is void, because it was executed without the authority of the court or the written consent of the other spouse (Article 96, 100, FC).

X.

Briefly explain whether the following contracts are valid, rescissible, unenforceable; or void:
(a). A contract of sale between Lana and Aridy wherein 16-year old Lana agreed to sell her grand piano for 25,000.00. (2%).
SUGGESTED ANSWER

(a) The contract of sale is voidable, because Lana is a minor, and is thus incapable of giving consent to a contract.

(b) A contract of lease of the Philippine Sea entered by and between Mitoy and Elsa. (2%).

SUGGESTED ANSWER

(b) The contract of sale is void, because its object; the Philippine Sea, is outside the commerce of men.

ALTERNATIVE ANSWER
(b) The contract of sale is void under Article 1306 of the Civil Code because it is against public policy.

ANOTHER ALTERNATIVE ANSWER

(b) The contract of sale is void as it is prohibited by a treaty, which is considered binding law in the Philippines.

(Note: Under Article 137 of the UNCLOS, the Philippine Sea is governed by the following mandates:
(b) No State or natural or juridical person shall appropriate any part thereof.

(c) A barter of toys executed by 12-year old Clarence and 10 year old Czar (2%)

SUGGESTED ANSWER
The contract is unenforceable, because both parties, being minors, are incapable of giving consent.

(d) A sale entered by Barri and Garri, both minors, which their parents later ratified. (2%)


SUGGESTED ANSWER

(d) The contract is valid and may not be annulled by either party due to the ratification by the parents of Barri and Garri, if done while both were still minors. Ratification extinguishes the action to annul a voidable contract, or an unenforceable contract, as in this case were both parties were minors and may be done by the parents, as guardians of the minor children (Article 1407, NCC).

(e) Jenny’s sale of her car to Celestine in order to evade attach ment by Jenny’s creditors. (2%)

SUGGESTED ANSWER

(e). The contract is rescissible because it is in fraud of creditors (Article 1381, NCC).

XI.

Zeny and Nolan were best friends for a long time already. Zeny bor rowed 310,000.00 from Nolan, evidenced by a promissory note whereby. Zeny promised to pay the loan once his means permit ** Two months later, they had a quarrel that broke their long-standing friendship.

Nolan, seeks your advice on how to collect from Zény despite they tenor of the promissory note What will your advice be? Explain your answer. (3%)

SUGGESTED ANSWER

The remedy of Nolan is to go to court and ask that a period be. fixed for the payment of the debt. Article 1180 of the New Civil Code provides that when a debtor binds himself to pay when his means permit him to do so, the obligation shall be deemed to be one with a period (suspensive). Article 1197 provides that the Courts may fix a period if such was intended from the nature of the obligation and may also fix the duration of the period when such depends on the will of the debtor.

XII

Krystal owns a parcel of land covered by TCT No. 12345 in Ange les City, Due to severe financial constraints, Krystal was forced to sell the property to RBP Corporation, a foreign corporation based in South Korea. Subsequently, RBP Corporation sold the property to Gloria, one of its most valued clients.
Wanting her property back, Krystal, learning of the transfer of the property from RBP Corporation to Gloria, sued both of them in the Regional Trial Court (RTO) for annulment of sale and for reconveyance: She alleged that the sale by RBP Corporation to Gloria was void because RBP Corporation was a foreign corporation prohibited by the Constitution from acquiring and owning lands in the Philippines.
Will Krystal’s suit for annulment of sale and reconveyance prosper? Explain your answer. (4%)


SUGGESTED ANSWERS

Krystal’s suit will not prosper. The Supreme Court, in Borromeo . v. Descallar (G.R. No. 159310. February 24, 2009, 580 SCRA 175), reiterated the consistent ruling that if land is invalidly transferred to an alien who subsequently becomes a Filipino citizen or transfers it to a Filipino, the flaw in the original transaction is considered cured and the title of the transferee is rendered valid.
In this case, RBP, being a foreign corporation is prohibited from acquiring private land, making the sale of Krystal to RBP void ab initio. However, the subsequent transfer to a Filipino citizen cured the defect, making Gloria’s title valid and defeating Krystal’s action for annulment and reconveyance.

XIII.
TRUE OR FALSE – Explain your answers.
(a) All rights are considered as property. (2%)


SUGGESTED ANSWER
(a) False, Only right which are patrimonial in character can be considered property. Rights which are not patrimonial, such as the right to liberty, the right to honor, family rights, and political rights cannot be considered property.

(b) A lessee cannot bring a case for quieting of title respecting the property that he leases. (2%)

SUGGESTED ANSWER

(b) True. The plaintiff must have a legal or equitable title to the real property in question or some interest therein, (or must be posses sion thereof, so that the action may be in prescriptible (Article 476-477, Civil Code)


SUGGESTED ALTERNATIVE ANSWER:

(b) False. If the property lease is a movable property, like a car, an airplane or a ship, the lessce cannot bring the action to quiet title. The property – subject matéer of the action to quiet title should be real property only (Art. 477, NCC).
(c) Only the city or municipal mayor can file a civil action to abate a public nuisance (2%)

SUGGESTED ANSWER

(c) False Article 703 of the New Civil Code provides that a private person may file an action on account of a public nuisance, if it. is especially injurious to himself. Thus, a private person may file a civil action to abate a public nuisance that is especially injurious to him.

(d) Possession of a movable property is lost when the location of the said movable is unknown to the owner. (2%)


SUGGESTED ANSWER

d) False. Article 556 of the Civil Code provides that the possession of movables is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know their whereabouts. Possession of a movable, therefore, is lost only when possessor loses control over it.

(e) Continuous non-apparent easements can be acquired either through title or by prescription. (2%)


SUGGESTED ANSWER

(e) False. Article 620 of the Civil Code provides that con tinuous and apparent easement are acquired either by virtue of a title or by prescription of ten years. Continuous non-apparent easements and discontinuous ones, whether apparent or not, maybe acquired only by Virtue of a title (Art. 622, NCC). An easement must be both continuous and apparent in order to be subject to acquisition by prescription.

XIV.

Plutarco owned land that borders on a river. After several years the action of the water of the river caused the deposit of soil, and-increased the area of Plutarco’s property by 200 square meters.

(a) If Plutarco wants to own the increase in area, what will be his legal basis for doing so? Explain your answer. (2%)

SUGGESTED ANSWER

(a) Plutarco’s legal basis for owning the increase in area would be by accretion under Article 457 of the New Civil Code, which says that the accretion of soil which is gradually received from the effects of the current of the waters belongs to the owners of land adjoining the banks of the river.
The requisites in order that the reparian owner will own the alluvion deposited through the process of accretion are as follows:
(1) the deposit should be gradual and imperceptible,
(2) the cause of the accretion is the current of the river and
is not artificial or man-made, and
(3) the land where the accretion takes place is adjacent to the river bank.

(b) On the other hand, if the river dries up, may Plutarco validly claim a right of ownership of the dried-up river bed? Explain your answer.

SUGGESTED ANSWER

(b). Rivers and their natural beds, being of public dominion (Article 502(1) Civil Code), are not subject to appropriation or accretion. The dried-up riverbed remains to be of public dominion and Plutarco cannot validly claim a right ownership over it (Republic v. Santos, GR, No. 160453, November 12, 2012).

In Plutarco’s case, all three requisites are met, as the accretion. took place over several years, was caused by the action of the river, and the land he owned borders a river; therefore, he owns the increase in area by virtue of accretion.

XV.
Kevín signed a loan agreement with ABC Bank. To secure payment, Kevin requested his girlfriend Rosella to execute a document entitled “Continuing Guaranty Agreement” whereby she expressly agreed to be solidarily liable for the obligation of Kevin.

Can ABC Bank proceed directly against Rosella upon Kevin’s default even without proceeding against Kevin first? Explain your answer. (3%)

SUGGESTED ANSWER

Yes. Despite the designation of the contract.as a “Continuing Guaranty Agreement,” the terms of the document prevail. Rosella expressly agreed to be solidarily liable for obligation of Kevin. According to par: 2, Article 2047 of the New Civil Code, if a person binds himself solidarity with the principal debtor, the contract is called a suretyship. A surety is under a direct and primary obligation to the creditor and may be proceeded against in case the principal debtor does not pay as he is an insurer of the debt. Only a guarantor, an insurer of the principal debtor’s solvency, enjoys the benefit of excussion.
[Note: It is the panel’s recommendation that due credit should also be given to examinees who answered that suretyship being an accessory contract, the principal debtor should be an indispensable party to the action against the surely].

XVI.

Jovencio operated a school bus to ferry bis two sons and five of their schoolmates from their houses to their school, and back. The parents of the five schoolmates paid for the service. One morning, Porfirio, the driver, took a short cut on the way to school because he was running late, and drove across an unmanned railway crossing. At the time, Porfirio was wearing earphones because he loved to hear loud music while driving. As he crossed the railway tracks, a speeding PNR train loudly blared its horn to warn Porfirio, but the latter did not hear the horn because of the loud music. The train inevitably rammed into the school bus. ‘The strong impact of the collision between the school bus and the train resulted in the instant death of one of the classmates. of Jovencio’s younger son.

The parents of the fatality sued Jovencio for damages based on culpa contractual alleging that Jovencio was a common carrier, Porfirio for being. negligent; and the PNR for damages based on culpa aquiliana.

Jovencio denied being a common carrier. He insisted that he had exercised the diligence of a good father of a family in supervising Porfirio, claiming that the latter had had no history of negligence or recklessness before the fatal accident.

(a) Did his operation of the school bus service for a limited clientele render jovencio a common carrier? Explain your answer. (3%)

SUGGESTED ANSWER

(a) Yes. Jovencio is a common carrier. The truc test for a common carrier is not the quantity or extent of the business actually transacted, or the number and character of the conveyances used in the Activity, but whether the undertaking is a part of the activity engaged in by the carrier that he has held out to the general public as his business or Occupation (Spouses Perena v. Spouses Zarate, G.R No. 157917, August 29, 2012, 679 SCRA 208, 234).
Jovencio operated the school bus #4 & business and not just as a casual occupation; he undertook to carry the students in established routes to and from the school; and he transported the students for a fee, Jovencio was a common carrier notwithstanding the limited clientele.

b) In accordance with your answer to the preceding question, stațe the degree of diligence to be observed by Jovencio, and the consequences thereof. Explain your answer. (3%)


SUGGESTED ANSWER

(b) Jovencio, as a common carrier, must observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of cach case. A common carrier should “carry the passengers safely as far as human-car and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances,”
(c). Assuming that the fatality was a minor of only 15 years of age who had no earning capacity at the time of his death because he was still a student in high school, and the trial court is minded to award indemnity, what: may possibly be the legal and factual justifications for the award of loss of earning capacity? Explain your answer. (4%).


SUGGESTED ANSWER

(c) If it can be shown that the deceased student was enrolled in a reputable institution and was able-bodied prior to his death, the basis for award of loss of earning capacity is the prevailing minimum wage at the time of the child’s death. The computation of the child’s life expectan ey must be reckoned from the age of 21 years, which is the age when the child would have graduated from college and would have begun to work/ (Spouses Perena v. Spouses Zarate, G.R. No. 157917 August 29, 2012).

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