Fearless forecast.docx

8/11/2019 Fearless forecast.docx

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Possible bar exam!

PFR111 Fraternal Order of LeviathanPerson and family code.

Q. Can laws become effective by publishing the law in the website of congress?

A. no. publication must be in the newspaper of general circulation. The electronics commerce law only allows thepresentation of electronic data as original evidence but does not authorize publication of laws electronically.

Q. who may be legitimated?

A. 1. Children conceived and born outside of the wedlock of parents who, at the time of conception of the former, were

not disqualified by any impediment to marry each other, or

2. children conceived and born outside of wedlock of parents who, at the time of conception of the former, were so

disqualified only because either or both of them were below 18 years of age (as amended by R.A No. 9858

Q. May the illegitimate children use the surname of their Father?

A. Yes, if their filiations has been expressly recognized by the father through the record of birth appearing in civil

register, or when an admission in public document or private handwritten instrument is made by the father.

Q. May an illegitimate child, upon adoption by her natural father use the surname of her natural mother as her

middle name?

A. yes. The law is silent as to the use of middle name but the drafters of civil code recognized the Filipino custom of

adding the surname of the childs mother as his/her middle name (adoption of Stephanie Garcia G.r no. 148311)

Q. Is it sufficient that the other spouse gave consent to the adoption without joining the petition?

A. the law on adoption joint adoption of husband and wife is mandatory because of thesubstantial effects that would

have on the family (lim GR 168992-93)

Q. Rommel underwent sex re-assignment surgery. He filed a petition to change his gender to female and to change his

first name to mely in order to facilitate his marriage with his fianc. Should the court grant the petition?A. no. there is no law recognizing sex re-assignment. The determination of a person sex at the time of birth, if not

attended by error, is immutable. While Rommel may have succeed in altering his body and appearance through the

intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.

Q. Jennifer has rare and permanent condition known as congenital adrenal hyperplasia, a condition where a person

has organs of both male and female. She was registered as a female at birth but when she grew up, the male traits

become dominant. May the court allow the petition for correction errors of entry?

A. yes, because based on medical testimony and scientific development showing the respondent to be other than

female, then a change in her birth certificate entry is in order. Considering that Jennifer body produces high levels of

male hormones, there is preponderant biological support for considering him as being male. (Cagandahan)

Q. can a grandson, whose parents are still alive, be considered a minor of family home owned by his grandparents

and thus after 10 years from death of the grandparent and grandson still lives therein, family home should be

preserved until the grandson reaches the age of majority?

A. No. A grandson, while was living in the said family home cannot be said to be dependent for support on the

grandparent, who was the head of the family where the said grandson lived. The liability of legal support falls primarily

on childs parents especially his father.

Q. In an action for support, may the court make a declaration that the marriage?

A. Yes. The validity of a void marriage can be collaterally attacked. Other than for purposes of remarriage, no judicial

action is necessary to declare a marriage an absolute nullity. For other purposes the court may pass upon the validity of

marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the

case. In action for support, the court can declare marriage void to determine the rights of the child to be supported. (De

Castro 2008)

Q. Can a spouse bring an action for recovery without including as party-plaintiff the other spouse?

A. Yes. The conjugal partnership is governed by rules on partnership. A partner is co-owner with the other partners of

the specific partnership property. Any one of the co-owners may bring an action, any kind of action, for the recovery of

co-owned properties. Therefore, only the co-owner who filed the suit for the recovery of the co-owned property is an

indispensible party thereto. The other co-owners are not indispensable parties. Hence being a co-owner, the spouse

may bring an action for recovery without including the other spouse. (Carandang G.R. 160347)

Q. Is a partial voluntary separation of property made pending for declaration of nullity of marriage is valid?

A. Yes. Separation of property may be affected voluntarily or for sufficient cause, subject to judicial approval.


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This holds true even if the proceedings for declaration of nullity of marriage was still pending. However, this voluntary

separation of property is subject to the rights of all creditors of the conjugal partnership of gains and other person with

pecuniary interest (maquilan G.R. 155409)

Q. does the prohibition on donation between spouses during marriage apply to legally married spouse only?

A. No. the prohibition applies even to parties living together as husband and wife without a valid marriage e.g common

law marriages.

Q. A and B have been living together as husband and wife without the benefit of marriage since January 10, 2006.

They decided to get married January 1, 2011 but without marriage license. there is no legal impediment to marry each

other. Is the marriage valid?

A. No. in this case they have living together short of 5 years. There can be no substantial compliance in these case

(Republic v. Dayat)

Q. Can a petition for declaration of nullity under Art. 36 stand even if the ground for such also exist against the

petitioner? Was the doctrine under the Molina case already overturned?

A. yes. This is accord with the decision in ngo V Te, the court stated in qualification that the petition should be decided

on a case-to case basis thus not inconsistent with the guidelines set in the molina case.

Q. will a final judgment denying a petition for nullity on the ground of psychological incapacity bar a subsequent

petition for declaration of nullity on the ground of lack of marriage license?

A. Yes. There is res judicata because there is identity of causes of action even if the plaintiff varied the tenor of the

petitions. The change of nomenclature of the action is immaterial (Mallion V Alcantara)

Q. X and Y were married. The marriage and cohabitation brought a son Z. however the marriage was eventually

declared void, at instance of Y, because it was found out that X was previously married to W and such was not yet

annulled. X and Y both claimed and admitted that Z was their illegitimate son. Can this be allowed?

A. No. Z is presumed to be the son of X and W, to whom she was married. X the mother cannot declare the illegitimacy

of the child because it is proscribed under the Family code. Y cannot impugn the legitimacy of the child because it canonly be done by the husband, W, and in exception cases his heirs (Concepcion V C.A GR 123450)

Q. is a marriage between a Filipino and foreigner in the Philippines without a certificate of legal capacity to contract

marriage from the embassy or consular officials of his country here valid?

A. yes. Because the foreigner failure to obtain such certificate is mere irregularity that does not invalidate the marriage.

(RECIO 366 SCRA 437)

Q. under the above facts, may Y be granted visitorial rights and ask for the continuous use of his surname by Z?

A. Y cannot be granted visitation rights nor Z continuously use the surname of Y. Visitation rights come from the natural

right of the father to his child. Y cannot impose his surname on Z who is in the eyes of the law not related to him in any

way.

Q. may the spouses agree to partial voluntary separation of property prior to the judicial declaration of nullity of

marriage?

A. Yes. Under Article 143, separation of the property during the marriage may be effected voluntary subject to court

approval (Maquillan GR 155409)

Q. Can the natural parents be allowed to withdraw their consent to the adoption of their natural child prior to

adoption decree?

A. A period of six months from the time the biological parents made their decision shall be allowed for them to

reconsider any decision to relinquish his or her or their child for adoption before the decision becomes irrevocable

Q. what is the probative value of DNA results in determining paternity/filiation?A. if there is no match, it is conclusive proof of no paternity. If there is 99.9% match, it can be used as a corroborative

evidence (Herrera 2005)

Q. an alien and Filipina lived together without the benefit of marriage as husband and wife because the Filipina was

still legally married to another, is she entitled to the property acquired by alien?

A. No. in such adulterous relationship no co-ownership exists between the parties. It is necessary for each of the

partners to prove his or her actual contribution to the acquisition of property in order to be able to lay claim to any

portion of it. (Borromeo 2009)

Q. what are the instances when marriage settlements may be modified after the celebration of marriage?

A. Generally, modification to marriage settlements must be before the celebration of marriage. However modificationcan be made in the following instances.


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1) art. 66 to 67 when there is reconciliation after legal separation, 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.

2) art 128 incase of abandonment, the aggrieve spouse my file a petition for receivership

3) Art 135 sufficient cause for judicial separation

4) Art 136 in case for voluntary petition for judicial separation of property

Q. can an alien spouse assail the encumbrance over real property made by the Filipina spouse without his consent?

A. No. in both absolute community of property and conjugal partnership of gains an alien married to a Filipino cannot

have any interest in the community or partnership property, otherwise there will be circumventing he proscription in

the constitution regarding aliens being prohibited from acquiring real property in the Phil. (Mathew V taylor)

Void Voidable Legal separation

Property Relations Capacitated to marry but are

under a void marriage: the rules

on co-ownership.

Not Capacitated to marry:

only the properties acquired byboth spouses shall be owned by

them.

General rule: absolute

Community of property

Exception: when there is

valid marriage

settlement

GR: absolute community

Of property

Exception: when there is

a valid marriage

settlement

Effects of

dissolution

GR. Co-ownership apply

Exception: Art 43(2-5) shall

Govern in case of subsequent voi

marriage under Art. 40

The effect provided in

Art 43(2-5) shall govern

In case of subsequent

Void marriage under

Art 40

The absolute community

or conjugal property

shall be dissolved and

liquidated but the

offending spouse shall

have no right to any shar

on the profit earned by

the ACP or CPG Art63 (2)

Children GR. Illegitimate Art 165EX: Art 54 in relation to art 36

Terminated subsequent marriage

under art 43 in rel to art 41

Children born inside aValid marriage are

Legitimate Art 164. And

Children conceived or

Born prior to the final

Judgment of

Annulment are

legitimate

Children born inside aValid marriage are legitim

Property.

Q. what is the rules on hidden treasure?

A. if finder is the OWNER and no one else treasure totally belongs to the owner of the property where found

If the finder is a 3rd

person and discovery by chance entitled to of the value and other half pertains to the owner of the

property where found

2. if the finder is in possession of the property as USUFRUSTUARY and discovery by chance- entitled to of the value

other half belong to naked owner. If finder is a 3rd

person and discover by chance in the property under usufruct-

usufructuary who is considered stranger will not get anything. Finder naked owner

3) if finder is a married spouse, other spouse is entitled to of the share of the finder art 117

Q. what is by chance?

A. means by good luck whether there was a deliberate search for the treasure or not but there was no prior agrrement

on how the treasure if found would be divided

Q. what are the rights of a land owners VS a builder in good faith or in bad faith?

A. LO Vs BPS in GF

a. appropriate or acquire what has been BSP after paying indemnity.

b. Sell the land unless the value of the land is considerably more than the value of the building or trees.

c. BSP is unable to pay, may demand removal of what has been built planted or sown

2. LO Vs BSP in BF

a. acquire what has been BSP without paying for indemnity except necessary expenses for the preservation of land only.b. comple the builder or planter to pay the price of the land and sower to pay the proper rent plus damages


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c. demand demolition or removal of the work at the expense of BSP plus damages.

3. BF plus BF = GF

4. if relationship is lessor-lessee and lessee in GF makes

a. USEFUL IMP. Which are suitable to the use for which the lease is intended without altering the form or substance of

the property leased, the lessor upon the termination of the lease shall pay the lessee of the value of the improvement

at the time. Should the lessor refuse to reimburse, lesse may remove the improvement even though the principle thing

may suffer damage.

b. Ornamental Expenses lessor may choose to retain them by paying their value at the time the lease is extinguished. Art

1678

Q. when is partition of co-owned property at the instance of co-owner not allowed?

A. 1) when the co-owners have agreed to keep the thing undivided for a certain period of time not exceeding 10 years

2. when its is prohibited by the donor or testator for a period not exceeding 20 years

3. when it is prohibited by law.

4) when it will render the thing unserviceable for the use for which it is intended

Q. distinguish nuisance per se and nuisance per accidens. How are they abated?

A. a nuisance per se is an act, occupation or structure which unquestionably is a nuisance at all times and under anycircumstance regardless of location or surroundings. Subject to summary abatement

A nuisance per accidens (in fact) may be considered a nuisance by reason of circumstance, location or surroundings. A

judicial process is needed before per accidens can be abated

Q. what is the doctrine of attractive nuisance?

A. one who maintain on his premises dangerous instrumentalities or appliances of a character likely to attract children in

play and who fails to exercise ordinary care to prevent from playing therewith or resorting thereto, is liable to a child of

tender years who is injured thereby, even if the child is technically a trespasser in the premises

Q. Can a schizophernic donate his property?

A. absent of substantial proof that a person had lost total control of his mental faculties, a person suffering from suchsickness does not necessarily lose his competence to intelligently dispose of his property. (Catalan GR. 159567)

Q. what are continuous, discontinuous, apparent or non apperent easement?

A. Continuous easement are those the use of which is or may be incessant, without the intervention of any act of man

Discontinuous easement are those which are used at intervals and depend upon the acts of man

Apparent are those which are made known and are continually kept in view by external signs that reveal the use and

enjoyment of the same.

Non apparent are those which show no external indication of their existence

Q. when can you revoke a donation?

A. fulfillment of resolutory conditions or charges ( art. 764)

Ingratitude (Art 765)

Q. when can you reduce donation?

A. the donation inter vivos made by the person having no children or descendant, legit or illegit by subsequent marriage

or iilegit may be revoked in case of B.A.R ( birth, adoption, reappearance)

2) if insufficient property is left for support of donor and his relatives

3) if made in fraud of creditors

Q. can an easement of a right of way be acquired by prescription?

A. No. the easement of right of way is discontinuous one under Art 622 and it ay be acquired only by virtue of title. The

presence of physical or visual signs only classifies an easement into apparent or non-apparent (bogo-medeilim milling)

Q. can a real property be treated by the parties to a contract as personal property?

A. Yes. The parties to a contract of chattel mortgage may, by agreement, treat as personal property which by nature be

real property, such as leasehold rights and building. However it is only good as far as the parties are concerned. It is

based on the principle of estoppel. (Evangelista 1958)

Q. what are the rule on alien holdings under the condominium act?

A. if the common areas are in the name of the unit holders as co-owners, then no unit may be transferred except to

Filipino citizens or corporation at least 60% Filipino owned, except by hereditary succession.

If the common areas are in the name of the condominium corporation, then 40% of the units may be sold or transfered

to aliens or aliens entities, so long as the stockholdings of the Filipinos in the condominium corporation do not amountto less than 60%


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Q. when may partition be made by sale of the entire property?

A. as GR partition whether judicial or extra judicial is not allowed, except on the following grounds in which case partion

may be made by the sale of the entire property?

1) three years after damages rendering material part unfit for use and there is refusal to rebuild by the unit owners

2) damage extends to of units and the owners with 30% interest oppose repair

3) project is more than 50 years, obsolete and uneconomic, and owners holding more than 50% interest refuse to repair,

rebuild and remodel

4) condition for partition by sale embodied in the Declaration of restriction have been complied with

Wills and Succession

Q. Mr. Ramos executed a will completely valid as to form. A week later, however he executed another will which

expressly revoked his first will following which he tore his first will to pieces, upon the death of Mr. Ramos his second

will was present for probate by his heirs, but it was denied probate due to formal defects. Assuming that the copy of

the first will was available, may it now be admitted to probate and given effect?

A. Yes. The first will may be admitted to probate and given effect. When the testator tore the first will, he was under themistake belief that the second will was perfectly valid and he would not have destroyed the first will had known that the

second will is not valid. The revocation by destruction therefore is dependent on the validity of the second will. Since it

turned out that the second will was invalid, the tearing of the first will did not produce effect of revocation. This is

known as the doctrine of dependent relative revocation (Molo v Molo)

Q. what are the requisite of valid disinheritance?

A. 1. It must be made in will

2. must be for a valid specified in law

3. must specify the cause

4. must be unconditional

5. must be total6. the cause must be true

7. if the truth of the cause is denied, it must be proved by the proponent

Q. when there is a compulsory heir in the direct line instituted in the will and the testamentary disposition given to

such heir is less than the heirs legitime, is there preterition?

A. No. there is no preterition in this case precisely because there was no total omission, inasmuch as the heir received

something from the inheritance. Therefore the heirs remedy is not found in Art 854, but rather in Article 906 and 907 on

the completion of legitime

Q. how does Reserva trocal operate?

A. 1. The property should have been acquired by operation of law by an ascendant (reservista) from his descendant

(propositus) upon the death of the latter

2. the property should have been previously acquired by gratuitous title by the propositus from another ascendant or

from a brother or sister

3. the propositus should have died without any legitimate issue in the direct descending line who could inherit from him

Q. how many times should the will be read to a blind testator and by whom?

A. twice, once by the subscribing witness and again by the notary public before whom the will is acknowledge.

Exmpt: Alvarado case

Q. what is pretiration?

A. when there is total omission of one, some or all the compulsory heirs in the direct line, whether living at the time of

the execution of the will or born after the death of the testator from the inheritance. It is not mere asence in the nameof the will. The device and legacies shall be valid in so far as they are not inofficious.

Q. what is disposicion Captatoria? Is it valid?

A. the condition that the heir shall make some provision in his will in favor of the testator or of any other person is what

is known as a condition Captatoria. It is not only the condition but entire testamentary disposition shall be void Art 875

Q. what is the Iron Curtain Rule?

A. based on this rule, an illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of

his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child (del

amerced V Del amerced)

Obligation and Contracts


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Q. distinguish between guaranty and surety ship?

A. A guarantor insures the solvency of the debtor while a surety is an insurer of the debt itself. A contract of guaranty

gives rise to a subsidiary obligation on the part of the guarantor to pay if the principal debtor cannot pay while a surety

pays if the principal debtor does not pay. A surety has benefit of execussion

Q. what is a purchase money resulting to trust?

A. Art 1448 of the civil code provides that an implied trust is created when property is sold, and the legal estate is

granted to one party but the price is paid by another for the purpose of having the beneficial interest of the property.

The former is the trustee, while the latter is the beneficiary

Q. what is the nature of the action for rescission in Art. 1191?

A. Rescission creates the obligation to return the object of the contract. It can be carried out only when one who

demands rescission can return whatever he may be obliged to restore. (Co. V CA)

To rescind is to declare a contract void at its inception and to put an end to its as though it never was. It is not merely to

terminate it an release the parties from further obligation to each other, but to abrogate it from the beginning and

restore the parties to their relative position as if the contract is made (ocampo V CA)

Q. distinguish an absolutely simulated contract from an illegal contract?

A. in simulation the contract is not really desired to produce an illegal effect or in any way alter the juridical situation of

the parties; whereas an illegal contract is intended to be real and effective and entered in such form as to circumvent a

prohibited act (Rodriguez V Rodriguez)

Q. Is the statute of frauds applicable to contracts with right to first refusal?

A. No. the application of the statute of frauds presupposes the existence of perfected contract. A right of first refusal is

not by means a perfected contract of real property. Contractual grant. Thus a right of refusal need not be written to be

enforceable and may be proven by oral evidence ( rosencor GR 140479 )

Q. what are the Characteristic of a Contract?A. mutuality- its validity and performance cannot be left to the will of only one of the parties

Automony- the contract can stand on its own

Consensuality- Contracts are perfected by mere consent, except real contracts and contracts which requires solemnities

Relativity-

Obligatory force- it is the law between the contracting parties.

Q. GR on Resolution under 1191

A. in the absence of an express stipulation authorizing the parties to extrajudicially resolve a contract of sale, the power

to resolve must be invoked judicially

Q. what is the doctrine of rebus sic stantibus?

A. the parties stipulate in the light of certain prevailing condition, and once these conditions cease to exist, he contract

also ceases to exist. When the service has become manifestly difficult so as to be beyond the contemplation of the

parties the courts may relieve the obligor of his obligation, in whole or in part

Resolution Termination

The unmaking or undoing of a contract, not merely

Its termination

An end in time a close or cessation

May be effected by both parties by mutual

Agreement Or unilaterally by on party declaring

recission Subject to the review of the courts

May be effected by mutual agreement or by one

Party exercising his remedies against the other

As provided in the contract

Contract is deemed inexistent Contract is deemed valid at inception

If not expressly stipulated, it must be soughtthrough judicial action

Clause must be expressly stipulated in the contract;termination is simply an enforcement of the provisio

the contract.

Mutual restitution is required to bring the parties

Back to their state before the contract

Parties are not restored to their original situation; co

is treated as one which existed

Sales

Q. what are the remedies of the buyer in case the failure of the owner or developer to develop the subdivision or

condominium projects according to the approved plans and within the time limit for complying with the same?

A. buyer mat at his option be reimbursed the total amount paid including amortization interest but excluding

delinquency interest, with interest thereon at the legal rate.


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Q. what is the consumer expectation test?

A. under this test a product may be defective in design if the plaintiff demonstrate that the product failed to perform as

safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. The test is

then the reasonable expectation of the consumer.

Q. what are the remedies of a seller in a contracts of sale of personal property by installments?

A. under Art. 1484 of the civil code (recto law) the remedies of an unpaid seller are to.

1. exact fulfillment should the buyer fail to pay.

2. cancel the sale if the buyer fails to pay 2 or more installments

3. foreclose on chattel mortgage if buyer fails to pay 2 or more installments.

Different situations in double sales Who will win?

Where property covered by 2

Different titles

The earlier in date must prevail and in case of successive registration

Where more than one certificate is issued over the same land, the

Person holding a prior certificate is entitled to the land as against

A person who relies on subsequent title

When first sale is over unregistered

Land and the 2ndsale is when it isRegistered writ! Not under torrens

System

First buyer win. The principle of priority in time, priority in rights

Shall apply. Registration of the first buyer is constructive noticeNotice to the second buyer and such, the latter cannot be deemed

To be in good faith

1stsale is over unregistered land

And the second sale is when it is re-

Glistered under the Torrens system

Second buyer win since the registration of the second sale buyer is

The operative act.

When the 1stsale is unregistered

Land and the second sale is judicial

sale

First buyer will win. The rules of court will apply such that the

Delivery of the sheriffs certificate merely substitute the latter

Into the shoes of the judgement debtor which acquire all rights,

Interest and claims.

Q. what are the requirement for the maceda law to apply?

A. sale or financing of real estate, excluding industrial lots, commercial buildings and sales to tenants

2. installments basis

3. buyer paid at least 2 years of installments and later on defaults

Effects

He can pay the unpaid installments due without additional interest within the grace period earned by him. 1 month

grace period every year of installment payment. Exercisable only once every 5 years during the contract and its

extensions.

Q. distinguish a paco de retro from an equitable mortgage?

A. A pacto de retro is a situation where there is a right to repurchase the thing sold granted to the vendor in a separate

instrument from the deed of sale whereas an equitable mortgage is one which lacks the proper formalities, form of

words, or other requisites prescribed by law for a mortgage, but shows the intention of the parties to make the property

subject of the contract as security for a debt and contracts nothing impossible contrary to law.

Q. what is the mirror doctrine or mirror image rule?

A. the mirror image rule also referred to as an unequivocal and absolute acceptance requirement, states that an offer

must be accepted exactly without modification. An attempt to accept the offer on different terms instead creates a

counter-offer and this constitutes a rejection of the original offer. any change in the offer is a counter offer that does not

yet perfect a contract of sale.

Contract of sale Contract to sell

Title passes to the buyer upon delivery of the thing

sold

Ownership reserved in the seller and is not to pass

Until the full payment of the purchase price

Non-payment of the price is a negative

Resolutory condition; which may give rise to an acti

For specific performance or resolution with damage

Full payment is a positive suspensive condition

Seller has lost and cannot recover ownership of the

property until or unless the contract of sale is itself

resolved

Title remains in the seller if the buyer does not

comply with the condition precedent of making

payment at the time specified in the contract.

Credit transactions


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Q. what do pawn tickets represent?

A. a pawn ticket is the pawnbrokers receipt for a pawn. It is neither a security nor a printed evidence of indebtedness.

However for purposes of taxation, the same pawn ticket is proof of an exercise of a taxable privilege of concluding a

contract of pledge.

Q. when does the right of the pledge to appropriate thing pledge arise?

A. the pledge may appropriate the thing pledge if after the first and second auctions, the thing is not sold. This is an

exception to the prohibition against pacto commisorio.

Agency, Partnership and trust

Q. company A executed a lease contract with B. the lease contract provided that upon termination of the contract or

expiration of the lease, the lessor shall have the right to retain possession of the properties of the lessee in the leased

premises in payment of any unpaid rentals, charges. Is this provision considered pactum commisium?

A. no. because pactum commissorium applies only to a pledge or mortgage. The provision instead is a forfeiture clause

in the contract of lease and it gives the lessor a remedy upon default of the lessee obligation ( fort bonifacio)

Q. A and B executed an amendment to the real estate mortgage, a MOA and dacion in payment agreement. Therein

they agreed to restructure and consolidate the loans. He same also provide that should a fail to pay within 1 year

from the date of the consolidation and restructuring, the DPA shall be enforced. A contends that the MOA and DPA

constitue pactum commsissorium. Is he correct?

A. yes. The MOA and DPA contain no provision for foreclosure proceeding nor redemptiom. Under the MOA the failure

by A to pay his debt within 1 year period gives B the right to enforce the Dacion in Payment transferring to it ownership

of A land. B in effect automatically acquires ownership of th properties upon As failure to pay his debt within the

stipulated period.

Q. what is a contract of antichresis?

A. by the contract of antichresis, the creditor acquires the right to receive the fruits of an immovable of is debtor, withthe obligation to apply them first, to the interest and thereafter, to the principal. For validity of contract of antichresis,

amount of principal and interest must be in writing.

Q. is the obligation to pay in foreign currency valid?

A. yes. With the repeal of the uniform currency act, there is no more legal impediment to having obligations or

transaction paid in a foreign currency as long as the parties agree to such an arrangement. In fact obligation in foreign

currency may be discharge in Phil. Currency based on the prevailing rate at the time of payment.

What is a dragnet clause?

A. dragnet clause or blanket mortgage I a pledge or mortgage given to secure future advancements is a continuing

security and is not discharge by the repayment of the amount named in the mortgage until the full amount of all

advancement shall been paid.

Q. Is a partnership established where parties share gross returns?

A. No. the sharing of gross returns does mot itself establish a partnership. There must be an unmistakable intention to

form a partnership or joint venture.

Q. distinguish a broker from an agent?

A. a broker is one who engaged for others on a commission, negotiating contracts relative to property the custody of

which he has no concern. His occupation is merely to bring the parties together. A broker like an agent acts in

representation of others; however unlike an agent he has no power to bind others in contracts (166 scra 493)

Lease

Q. when can you sublet?

A. when in the contract of lease of things there is no express prohibition, the lessee may sublet the thing leased, in

whole or in part, without prejudice to his responsibility for the performance of the contract toward the lessor.

Q. when is there an implied new lease or tacita Reconducion?

A. by tacit renewal of a contract of lease a new contract is impliedly established if at the end of the old contract the

lessee should continue enjoying the thing leased for 15 days with the acquiescence of the lessor, provided that a notice

to the contrary had not been previously given by either party.

Torts and Damages

Q. What is the Captain of the ship doctrine?


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A. A surgeon in charge of a medical operation is liable for the negligence of the assistance committed when the latter

were under his control. (Cantre vs Go)

Q. an employee of a drugstore misread the prescription and gave the customer a potent sleeping tablet instead of

something to keep his blood sugar down. The customer got involved in a vehicular accident because he fell asleep

while driving. Is the negligence of the employee the proximate cause of the accident?

A. Yes. The proximate cause of the accident is the gross negligence of the employee. The employer is likewise liable.

Considering the business of the drugstore the employee should have been very cautious in dispensing medicine. Moral

and exemplary damages are awarded ( Mercury drug vs Baking)

Q. Can the victim of a car collision immediately proceed against the drivers employer?

A. yes. The liability of the employer under Art 2180 of the Civil code is direct or immediate. It is not conditioned on a

prior recourse against the negligent employee, or a prior showing of insolvency of such employee. It is also joint and

solidary with the employee (mercury)

Q. what is a hospital liability in cases of medical negligence?

A. there is no employer-employee relationship between hospitals and doctors thus the vicarious liability doctrine does

not apply. However under the doctrine of Apparent Authority, hospital can be held liable because of the. 1) hospitalsact of holding out the doctor as its agent and/or employee. 2) patients acceptance of the services of the doctor (Agana)

Q. what is the doctrine of last Clear chance?

A. the doctrine of last clear chance states that where both parties ar negligent, but the negligent act of one is

appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the

loss, the one who had the last clear opportunity to avoid the loss but failed to do so is liable.

Q. Ramos hospital displayed in its lobby the names of the physicians associated with it. One of its patients died when

one of its associates left a gauze in the stomach of the patient. The patients family sued ABC hospital. Can it be held

liable under the Holding Out Theory?

A. Yes. This is sometime referred to as the doctrine of ostensible agency. In cases where it can be shown that hospital,by its action has held out a particular physician as its agent or employee and that patient has accepted treatment from

that physician in the reasonable belief that it is being rendered in behalf of the hospital then the hospital will be liable

for the physicians negligence.

What is the formula for computing Interest Rates?

A. 1) when the obligation is breached and consist in the payment of a sum of money (loan or forbearance of money) the

interest due should be that which may have been stipulated in writing. In the absence of stipulation, the rate of interest

shall be 12% per annum

2) when the obligation is breached and does not constitute a loan or forbearance of money, an interest on the amount

of damages awarded may be imposed at the discretion of the court at 6% per annum.

3) when the judgment of the court awarding a sum of money becomes final and executory the rate of legal interest,

whether falls in 1 or 2 shall be 12% per annum.

Land titles and deeds

Q. what is the status of reclaimed lands?

A. lands reclaimed by the government are not available for sale to private parties unlike other alienable lands.

Reclaimed lands retain their inherent potential as areas for public use or public service. Such lands must be transferred

to qualified private parties or government entities tasked to dispose of public lands before these can become private or

patrimonial lands (Chavez V PEA )

Q. will an earlier applicant for the registration of land prevail over a subsequent applicant if the title is issued to the

subsequent applicant first?A. No, the law recognize the title of subsequent applicant because he was issued his registration ahead of the first

applicant. The rule is that whoever first acquires title to a piece of land shall prevail and where there are more than one

certificate of title the person holding the prior certificate is entitled to the land.

Q. what is the mirror principle?

A. where there I nothing on the certificate of title to indicate cloud/vice in ownership or encumbrance, purchaser not

required to explore further than torrens title. ( Fule vs Legare)

Q. when is the 10 years prescriptive period not applicable to an action for reconveyance based on an implied or

constructive trust?

A. 1. If brought by the registered owners of their children


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2) A co-heir who, through fraud succeeds in obtaining a certificate of title in his name to the prejudice of his co heirs is

deemed to hold the land in trust for the latter.

3) plaintiff is in possession of the land in question

4) predicated on the fact that the conveyance complained of was null and void

Conflicts of Laws

Q. while driving during a trip to HK, X a Filipino, injures a pedestrian Y also a Filipino. Y files a case for damages

against X two year after the accident. Assume that in HK the prescription of the action for damages arising from tort is

one 1 year. X claim that Philippine law is applicable, Y pleads prescription based on HK law. Should the case be

dismissed?

A. Yes. The case must be dismissed. In this case prescription is a substantive matter whereby the rights to an action is

extinguished by the lapse of time. In torts cases, the law applicable is the place where the tort occurred

Long arm statutes Statutes allowing the courts to exercise jurisdiction when there are

Minimum contracts between the non-resident defendant and the forum

Doctrine of forum non-

Conveniens

The forum is inconvenient; the ends of justice would be best serveved

By trial in another forum; the controversy may be suitably triedElsewhere

Lex loci contracttus Law of the place where the contract was made or when

The contract is to be governed

Lex loci actus Law of the place where the act was done

Depecage Where different aspects of a case involving a foreign element

May be governed by different system of law

Foreign court theory The local forum, in deciding the case will put itself in the

Position of the foreign court

Act of the state doctrine Forbids review by the courts of the acts of foreign head

Of state acting in his official capacity.

Doctrine of processualpresumption

The foreign law. Whenever applicable should be proved by the proponentthereof, otherwise such law shall be presumed to be exactly the same as

the law of the forum

Q. what are caduciary rights?

A. refer to the right of the state to claim thru escheat proceedings the properties within its territory of decedent when

the decedent is not survived by any hiers.

Documents

Fearless forecast.docx