Civil Law Bar Examination 2010

8/8/2019 Civil Law Bar Examination 2010

http://slidepdf.com/reader/full/civil-law-bar-examination-2010 1/21

BAR EXAMINATION 2010

CIVIL LAW

12 September 2010 8 A.M. ± 12 NN.

INSTRUCTIONS

There is only one Examiner in Civil Law. Hence, the following questionnaire consists of only ONE

PART with sixteen (16) questions (numbered I to XVI), contained in eleven (11) pages.

Begin your answer to each numbered question on a separate page; an answer to a sub-question/sunder the same number may be written continuously on the same page and succeeding pages untilcompleted.

Answer the questions directly and concisely. Do not repeat the question. Write legibly.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!

_____________________________________ CONCHITA CARPIO MORALES

CHAIRPERSON2010 BAR EXAMINATIONS COMMITTEE

PLEASE CHECK THAT THIS SET CONTAINS ELEVEN (11) PAGES (INCLUDING THIS PAGE).

WARNING: NOT FOR SALE OR UNAUTHORIZED USE

CIVIL LAW

I

True or False.

a. Under Article 26 of the Family Code, when a foreign spouse divorces his/her Filipino spouse,the latter may re-marry by proving only that the foreign spouse has obtained a divorceagainst her or him abroad. (1%)

My answer: False. The following must be alleged and proven:

1. That wife or husband is a foreigner or naturalized foreign citizen

2. Prove the divorce as a fact and demonstrate conformity to the foreign law allowing it 3. Such foreign law must also be proved (no judicial notice)4. Prove that the divorce decree allows the former spouse to remarry

Comment [h1]: Republic v Orbecido

Accordingly, for his plea to prosper, respondent

herein must prove his allegation that his wife wa

naturalized as an American citizen. Likewise, bea foreign divorce decree can be recognized by ou

own courts, the party pleading it must p rove the

divorce as a fact and demonstrate its conformity the foreign law allowing it.[14] Such foreign law

must also be proved as our cou rts cannot take

judicial notice of foreign laws. Like any other fasuch laws must be alleged and proved.[15]

Furthermore, respondent must also show that the

divorce decree allows his former wife to remarryspecifically required in Article 26. Otherwise, th

would be no evidence sufficient to declare th at h

capacitated to enter into another marriage.CitingGarcia v Recio.



b. X, a widower, died leaving a will stating that the house and lot where he lived cannot bepartitioned for as long as the youngest of his four children desires to stay there. As coheirsand co-owners, the other three may demand partition anytime. (1%)

a. false (decree of divorce must be offered and prove as a fact)

b. false. (valid limitation made by testator provided it does not exceed 20 yrs)

a. False. (Proof of foreign decree of divorce must be presented to the court first.)

b. False. (Under the law, the testator has the right to forbid a partition which shall not exceed 20

years.)

A is false, because you have to prove also that the divorce was in conformity with a foreign law.Such foreign law must be alleged and proved.

II

Multiple choice.

a. A had a 4-storey building which was constructed by Engineer B. After five years, the buildingdeveloped cracks and its stairway eventually gave way and collapsed, resulting to injuries tosome lessees. Who should the lessees sue for damages? (1%)

1. A, the owner 2. B, the engineer 3. both A & B

b. O, owner of Lot A, learning that Japanese soldiers may have buried gold and other treasuresat the adjoining vacant Lot B belonging to spouses X & Y, excavated in Lot B where shesucceeded in unearthing gold and precious stones. How will the treasures found by O bedivided? (1%)

1. 100% to O as finder 2. 50% to O and 50% to the spouses X and Y3. 50% to O and 50% to the state4. None of the above

c. A executed a Deed of Donation in favor of B, a bachelor, covering a parcel of land valued atP1 million. B was, however, out of the country at the time. For the donation to be valid, (1%)

1. B may e-mail A accepting the donation.2. The donation may be accepted by B¶s father with whom he lives.3. B can accept the donation anytime convenient to him.

Comment [h2]: Art. 438. Hidden treasu

belongs to the owner of the land, buildin

or other property on which it is found. Nevertheless, when the dis covery is mad

on the property of another, or of the Sta

or any of its subdivisions, and by chanc

one-half thereof shall be allowed to the

finder. If the finder is a trespasser, he s

not be entitled to any share of the treasu

If the things found be of interest to scien

of the arts, the State may acquire them

their just price, which shall be divided in

conformity with the rule stated. (351a)

Comment [h3]: Art. 745. The donee mu

accept the donation personally, or throu

an authorized person with a special pow

for the purpose, or with a general and

sufficient power; otherwise, the donation

shall be void. (630)

Art. 1358. The following must appear in

public document:

(1) Acts and contracts which have fortheir object the creation, transmission

modification or extinguishment of rea

rights over immovable property; sales

real property or of an in terest therein

governed by Articles 1403, No. 2, and

1405;

(2) The cession, repudiation or

renunciation of hereditary rights or o

those of the conjugal partnership of

gains;

(3) The power to administer property,

any other power which has for its obj

an act appearing or which should app

in a public document, or should

prejudice a third person;

(4) 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 mu

appear in writing, even a private one. Busales of goods, chattels or things in acti

are governed by Articles, 1403, No. 2 an

1405. (1280a)



4. B¶s mother who has a general power of attorney may accept the donation for him.5. None of the above is sufficient to make B¶s acceptance valid

d. A executed a 5-page notarial will before a notary public and three witnesses. All of themsigned each and every page of the will.

One of the witnesses was B, the father of one of the legatees to the will. What is the effect of B being a witness to the will? (1%)

1. The will is invalidated2. The will is valid and effective3. The legacy given to B¶s child is not val id

A. 1

B. 3

C. 5

D. 3

1, 4, 5, 3

III

Define, Enumerate or Explain. (2% each)

a. What is the difference between "guaranty" and "suretyship"?

b. Define quasi tort . Who are the persons liable under quasi torts and what are the defensesavailable to them?

c. Give at least two reasons why a court may assume jurisdiction over a conflict of laws case.

A. in guaranty, the liability of guarantor is subsidiary; in suretyship, liability of surety isdirect and primary

in guaranty, guarantor guarantees the principal's solvency; in suretyship, surety guaranteesthe debt.

B. Quasi-tort means whoever by an act or omission causes damage to another, eitherwillfully or negligently, shall indemnify the latter for the same.

C.

1. when the local forum has substantial connection with the case involving a foreignelement2. when the local forum has jurisdiction over the subject matter of the case.



the definition above on letter b is quasi -delict.

Quasi-tort is different. when you ask for moral damages for acts which caused you distress, you

are claiming under quasi-tort.

remember that tort or quasi-delict, as causes of action, entitles the injured party to actual or

compensatory damages (proven by receipts). this does not necessarily imply that the injured party

is also entitled to moral and exemplary damages.

the mental anguish, stress etc, are causes of action falling under quasi-tort-- a legal duty which is

not personal nor contractual between the two parties. I don't think this was ever discussed in any

jurisprudence in the philippines. but I remember reading about it in one of those foreign books

about torts and damages.

Quasi-tort is from foreign source. It has no jurisprudence yet though, it's just a theory, an idea.

You can find its meaning from wikipedia.org.

IV

Spouses B and G begot two offsprings. Albeit they had serious personality differences, the spousescontinued to live under one roof. B begot a son by another woman. G also begot a daughter byanother man.

a. If G gives the surname of B to her daughter by another man, what can B do to protect their legitimate children's interests? Explain. (5%)

My answer: B may impugn the legitimacy of the child (FC Art. 166)

b. If B acquiesces to the use of his surname by G¶s daughter by another man, what is/are theconsequence/s? Explain. (5%)

My answer: B. the daughter will be considered as the legitimate child of B in which case the former

will be entitled to all the rights accorded to legitimate child under the law.

A. B may impugn the legitimacy of the child. (not so sure)

B. the daughter will be considered as the legitimate child of B in which case the former will be

entitled to all the rights accorded to legitimate child under the law.

Comment [h4]: FC Art. 174. Le gitimatechildren shall have the right:

(1) To bea r the surnames of th e father and

the mother, in conformity with the provisioof the Civil Code on Surnames;

(2) To receive support from th eir parents,

their ascendants, and in proper cases, thebrothers and sisters, in conformity with the

provisions of this Code on Support; and(3) To be entitled to the legitimate and oth

successional rights granted to them by the

Civil Code. (264a)



Consenting to the use of the surname is not equivalent to acknowledging that the daughter is his

and the same was not expressly stated in the problem.

mutakenako wrote:

Consenting to the use of the surname is not equivalent to acknowledging that the daughter is his

and the same was not expressly stated in the problem.

really? what's the best way to guess when someone carries the surname of his father as reflectedon his/her record of birth?

note that the father acquiesces to the use of his surname...what would be the effect? is it not amode whereby the child can acquire the status of a legitimate child?

using a circular reasoning, when a child carries the father's surname, there arises a presumption ofpaternity. whether or not the child is a child by blood is immaterial, of course, until and unless

the father dispute the child's legitimacy.

Answer: B may impugn the filiation of the child under A166 of the FC thru DNA testing which

is a conclusive proof of non-paternity subject to the Vallejo Standards.

B. If B acquiesces to the use of his surname by G·s daughter by another man, what is/are the

consequence/s? Explain. (5%)

Answer: The presumption of legitimacy will operate for children conceived or born inside a

valid marriage are legitimate under the FC. Thereby, the child shall have the right to use the

surname of the father, right to receive support, and has a right to succession as a compulsory

heir with a right to legitime protected by law.

Because children conceived or born inside a valid marriage is legitimate. This is where thepresumption of legitimacy operates because the law favors legitimacy. Unless the filiation of thechild is successfully impugned by the putative father within the prescriptive period allowed bylaw.

V

G filed on July 8, 2000 a petition for declaration of nullity of her marriage to B. During the pendencyof the case, the couple entered into a compromise agreement to dissolve their absolute communityof property. B ceded his right to their house and lot and all his shares in two business firms to G andtheir two children, aged 18 and 19.



B also opened a bank account in the amount of P3 million in the name of the two children to answer for their educational expenses until they finish their college degrees.

For her part, G undertook to shoulder the day-to-day living expenses and upkeep of the children.The Court approved the spouses¶ agreement on September 8, 2000.

a. Suppose the business firms suffered reverses, rendering G unable to support herself and thechildren. Can G still ask for support pendente lite from B? Explain. (3%)

b. Suppose in late 2004 the two children had squandered the P3 million fund for their educationbefore they could obtain their college degrees, can they ask for more support from B?Explain. (3%)

A. Yes, support pendente lite, which is immediately executory, is never fin al. the amount support

may be adjusted as the needs of the person entitled to support warrant according to the financial

capacity of the person liable for support.

B. Yes. but the amount of support may be tempered with by the court (not so sure din dito)

a. Yes. Under the law, contractual support shall be subject to adjustment whenever modification

is necessary due to the changes in the circumstances of the parties beyond their contemplation at

the time it is agreed.

b. Yes. The law provides that the support for the education of the children includes schooling for

some profession even beyond the age of majority. The fact that the children had squandered their

educational fund can be considered as changes in the circumstances of the parties beyond thei r

contemplation, in which case, B is still obliged to provide support upon demand as in the instant

case.

VI

Gigolo entered into an agreement with Majorette for her to carry in her womb his baby viain vitrofertilization. Gigolo undertook to underwrite Majorette¶s pre-natal expenses as well as thoseattendant to her delivery. Gigolo would thereafter pay Majorette P2 million and, in return, she wouldgive custody of the baby to him.

After Majorette gives birth and delivers the baby to Gigolo following her receipt of P2 million, sheengages your services as her lawyer to regain custody of the baby.

a. What legal action can you file on behalf of Majorette? Explain. (2.5%)

b. Can Gigolo demand from Majorette the return of the P2 million if he returns the baby?Explain. (2.5%)

c. Who of the two can exercise parental authority over the child? Explain. (2.5%)



The child being an illegitimate child is entitled to support from the putative father. Moreover,

the illegitimate child shall be entitled to succession rights but the share shall be 50% of the

share of a legitimate child.

VII

G and B were married on July 3, 1989. On March 4, 2001, the marriage, which bore no offspring,was declared voidab initio under Article 36 of the Family Code. At the time of the dissolution of themarriage, the couple possessed the following properties:

y a house and lot acquired by B on August 3, 1988, one third (1/3) of the purchase price

(representing downpayment) of which he paid; one third (1/3) was paid by G on February 14,1990 out of a cash gift given to her by her parents on her graduation on April 6, 1989; andthe balance was paid out of the spouses¶ joint income; and

y an apartment unit donated to B by an uncle on June 19, 1987.

a. Who owns the foregoing properties? Explain. (5%)b. If G and B had married on July 3, 1987 and their marriage was dissolved in 2007, who owns

the properties? Explain. (5%)

A. Who owns the foregoing properties? Explain. (5%)

Since the marriage was declared void ab initio by reason of psychological incapacityunder A36FC, their property regime shall be governed by co-ownership under A147FCwhich provides among others that, ́ in the absence of proof to the contrary propertiesacquired while they lived together shall be owned in commonµ.

Therefore: ¾ of the value of the house and lot shall be capital property since it was acquiredprior to the celebration of marriage on July 3, 1989 by B. 1/3 of the value of the property shall be paraphernal property since the proceedsused to pay the 1/3 value of the house and lot was a gratuitously acquired by G. The balance paid out of the spouses joint income shall be owned in commontherefore divided equally. ¾ an apartment unit donated to B by an uncle on June 19, 1987 shall be capi talproperty since it was acquired prior to marriage.

B. If G and B had married on July 3, 1987 and their marriage was dissolved in 2007, whoowns the properties? Explain. (5%)

It will still be the same since the regime of conjugal partnership of gains shall not applyto marriages terminated by reason of psychological incapacity under A36FC.Therefore, still A147FC shall apply with the distribution above-mentioned.

VIII

Spouses Rex and Lea bore two children now aged 14 and 8. During the subsistence of their

Comment [h6]:

Comment [h7]: Check what property regime

applies to the parties before the the effectivity o

the new family code (prior to August 3, 1988)



marriage, Rex begot a child by another woman. He is now 10 years of age.

On Lea¶s discovery of Rex¶s fathering a child by another woman, she filed a petition for legalseparation which was granted.

Rex now wants to adopt his illegitimate child.

a. Whose consent is needed for Rex¶s adoption of his illegitimate child? (2.5%)

My answer: None (Art. 185 FC)

b. If there was no legal separation, can Rex still adopt his illegitimate child? Explain. (2.5%)

My answer: Yes, by way of exception provided for by Art. 185 of the Family Code. Also R.A. 8552, Art 3,Sec. 7 c, iii

A. None. No consent is needed. (?)

B. Yes, the spouses must now jointly adopt.

A.

Rex should obtain the written consent of the following:1. The person to be adopted, if ten years of age or over;2. The biological mother of the child to be adopted; and3. The legitimate children of Rex, ten years of age or over

B.

Yes, Rex can do so. The consent of Lea is not necessary because Rex is adopting his ownillegitimate child, which he can do so independently.

a.) There is a need for an affidavit of consent from Rex's 14 year old child, from the child himself

who is 10 years old already, and from the biological mother, if known, or the legal guardian of the

child.

b.) Adoption is still an option provided that there is consent from Lea. The requirement for

affidavits of consent from the above-mentioned persons are still applicable.

IX

Eighteen-year old Filipina Patrice had a daughter out of wedlock whom she named Laurie. At 26,Patrice married American citizen John who brought her to live with him in the United States of

Comment [h8]: Art. 185. Husband and wif

must jointly adopt, except in the following ca

(1) When one spouse seeks to adopt his oillegitimate child; or

(2) When one spouse seeks to adopt the

legitimate child of the other. (29a, EO 91 aPD 603)

See also RA 8552 Art 3, Sec.7 (c), iii

(c) The guardian with respect to the ward

after the termination of the guardianship a

clearance of his/her financial accountabili

Husband and wife shall jointly adopt, exceptthe following cases:

(i) if one spouse seeks to adopt the legitimson/daughter of the other; or

(ii) if one spouse seeks to adopt his/her o

illegitimate son/daughter: Pro vided, Howethat the other spouse has signified his/he

consent thereto; or

(iii) if the spouses are legally separated froeach other.



America. John at once signified his willingness to adopt Laurie.

Can John file the petition for adoption? If yes, what are the requirements? If no, why? (5%)

Yes, John can adopt under the inter-country adoption law.

Yes. The 3-year continuous residency requirement reckoned from the filing of the applicationare not applicable in the case at bar. Same with the supervised trial custody and 14 years agegap between the adopter and adoptee.

X

In 1997, B and G started liv ing together without the benefit of marriage. The relationship producedone offspring, Venus. The couple acquired a residential lot in Parañaque. After four (4) years or in2001, G having completed her 4-year college degree as a fulltime student, she and B contracted

marriage without a license.

The marriage of B and G was, two years later, declared null and void due to the absence of amarriage license.

a. If you were the judge who declared the nullity of the marriage, to whom would you award thelot? Explain briefly. (3%)

b. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)A. the lot shall be awarded to either spouse as may be agreed upon in the marriage

settlement. if there was no such agreement, then to the spouse with venus choosesto remain.

B. venus is i llegitimate since she was born out of wedlock of his parents. shecannot be considered legitimated since the subsequent marriage between herparents was null and void.

A. If you were the judge who declared the nullity of the marriage, to whom would you award the

lot? Explain briefly. (3%)

Since the marriage was declared null and void due to absence of marriage license, the

property regime of the spouses shall be governed by A147FC where in the absence of proof to

the contrary, properties acquired while they lived together shall be owned in common.

B. Is Venus legitimate, illegitimate, or legitimated? Explain briefly. (3%)

Venus is illegitimate for being conceived and born out of wedlock. The subsequent marriage

will not lift her status from illegitimate to legitimate since legitimation will only take place

thru a valid subsequent marriage. In the case at bar, there is no valid subsequent marriage the

same being declared a nullity due to want of marriage license.

A. the property should be awarded to B. Co-ownership shall govern the property relations since



the marriage was void. The presumption that the property was acquired by them by their joint

effort will not apply because the problem clearly stated that G was studying as a full -time student

during their marriage.

Therefore, it is safe to presume that the properties acquired during their marriage was made

through the effort of B alone.

B. Illegitimate. The subsequent marriage was void.

XI

The spouses Peter and Paula had three (3) children. Paula later obtained a judgment of nullity of marriage. Their absolute community of property having been dissolved, they delivered P1 million toeach of their 3 children as their presumptive legitimes.

Peter later re-married and had two (2) children by his second wife Marie. Peter and Marie, havingsuccessfully engaged in business, acquired real properties. Peter later died intestate.

a. Who are Peter¶s legal heirs and how will his estate be divided among them? (5%)b. What is the effect of the receipt by Peter¶s 3 children by his first marriage of their

presumptive legitimes on their right to inherit following Peter¶s death? (5%)

A. legal heirs: children of peter during the first marriage, his children during the second marriage

and marie. one half of the estate shall go to all the children in equal shares, the other half goes to

marie.

B. the receipt shall be considered as advances on their legitimes which shall be imputable on their

legitime on the estate of peter.

A. Who are Peter·s legal heirs and how will his estate be divided among them? (5%)

Peter's legal heirs are as follows: Marie and his two children with her, his three illegitimatechildren of the former marriage.

Marie shall inherit 50% as surviving spouse, the two legitimate children with Marie will have37.50%, and the three illegitimate children of former marriage shall have 12.50%.

B. What is the effect of the receipt by Peter·s 3 children by his first marriage of their presumptivelegitimes on their right to inherit following Peter·s death? (5%)

The receipt of the presumptive legitimes of the children of the former marriage declared anullity are advances only of their future legitimes. They remain to be a compulsory heir of



Peter.

A.

Peter's legal heirs are as follows:

(1) Marie, the surviving spouse.

(2) Peter's 2 legitimate children from his marriage to Marie.

(3) Peter's 3 legitimate children from his former marriage to Paula. The children are legitimate

since the marriage was declared an absolute nullity on the ground of psychological incapacity.

This can be deduced from the fact that the regime of absolute community was given legal effect

and dissolved. Psychological incapacity is the only ground for declaring the absolute nullity of a

marriage where the marriage, although void, may still produce legal consequences (Tenebro vs.

CA, 423 SCRA 272). As such, the absolute community and the legitimacy of the children born prior

to the declaration of nullity are both given legal effect.

If a widow and legitimate children are left, the surviving spouse has in the succession the same

share as that of each of the children (Art. 996 -Civil Code).Therefore, the estate will be divided

equally among all of the legal heirs.

Bakit mag inherit si marie, eh invalid yung kasal nila, hindi sumunod sa art. 54 or 53 ata

yun.kailangan i rehistro yung judgment of nullity, partition and didtribution properties at saka

yung delivery of presumptive legitimes sa local civil and appropriate registry. Ang maginherit dito

eh yong mga bata lang.

You're right Drake11, thanks! Arts. 52-53 of Family Code provides that non-registration voids the

subsequent marriage.

The answer should be:

Legal Heirs: 3 legitimate children from Paula, 2 legitimate children from Marie, they are still

legitimate despite the marriage being null and void under art. 54.

Division of estate: All legitimate children inherit the entire estate in equal sha res.

biomicsoldier wrote:

A.

The children are legitimate since the marriage was declared an absolute nullity on the ground of psychological

incapacity. This can be deduced from the fact that the regime of absolute community was given legal effect and

dissolved. Psychological incapacity is the only ground for declaring the absolute nullity of a marriage where the

marriage, although void, may st ill produce legal consequences (Tenebro vs. CA, 423 SCRA 272). As such, the

absolute community and the legitimacy of the children born prior to the declaration of nullity are both g iven legal

effect.



Tanong ko lang, was this quoted from the said case? Second, there is nothing in the facts that state that the

marriage was declared a nullity due to A36FC. So why presume? Third, the legal effect of a marriage declared a

nullity under A36FC is that the children remain legitimate despite nullity of marriage under A54FC. [/size]

treadstone wrote:[size=85]biomicsoldier wrote:

A.





absolute community and the legitimacy of the children born prior to the declaration of nullity are both giv en legal

effect.




The case is about bigamy, I just paraphrased the line about psychological incapacity having legal

consequences despite being void ab initio, thus making the presumption valid. If it were any other

case of a marriage that is void ab initio, the property regime would be governed by Art. 147 or 148

of the FC, no Absolute community property would be recognized and dissolved. So it follows that

if the Absolute Community was recognized, the legitimacy of the children are also given legal

effect. These legal consequences is unique to Art. 36.

And yes you're right about Art. 54; edited my second post already. Thanks!

biomicsoldier wrote:

treadstone wrote:[size=85]biomicsoldier wrote:

A.







absolute community and the legitimacy of the children born prior to the declaration of nullity are both g iven legal

effect.




The case is about bigamy, I just paraphrased the line about psychological incapacity having legal

consequences despite being void ab initio, thus making the presumption valid. If it were any other

case of a marriage that is void ab initio, the property regime would be governed by Art. 147 or 148

of the FC, no Absolute community property would be recognized and dissolved. So it follows that

if the Absolute Community was recognized, the legitimacy of the children are also given legal

effect. These legal consequences is unique to Art. 36.

And yes you're right about Art. 54; edited my second post already. Thanks!

I see but with respect, I would like to argue a little more. A marriage declared a nullity under

A36FC is to be governed by the property regime under A147FC for there was no marriage to speak

of in the first place, therefore, there can never be a regime of absolute community property.

It is submitted that A50FC, in relation to the effect of termination of marriage under A43FC and

A44FC, shall apply to marriages declared void ab initio or annulled under A40FC and A45FC. In the

said articles, there exist an absolute community property to be liquidated. On the other hand,

A50FC made no mention that the same shall apply to marriages declared a nullity under A36FC.

I concede, your points are correct. I just realized I misinterpreted the term "judgment of nullity of

the marriage" in the problem to be a Judicial Declaration of Absolute Nullity because of the

similarity in wording, when it is really just an Annulment of a voidable marriage. Psychological

incapacity should not have entered the picture at all, my apologies. Thanks for the correction =)

Given that, the legal heirs remain to be all of the 5 legitimate children with the estate divided

equally among all of them.



XII

On May 5, 1989, 16-year old Rozanno, who was issued a student permit, drove to school a car, agift from his parents. On even date, as his class was scheduled to go on a field trip, his teacher requested him to accommodate in his car, as he did, four (4) of his classmates because the vanrented by the school was too crowded. On the way to a museum which the students were scheduledto visit, Rozanno made a wrong maneuver, causing a collision with a jeepney. One of his classmatesdied. He and the three (3) others were badly injured.

a. Who is liable for the death of Rozanno¶s classmate and the injuries suffered by Rozanno andhis 3 other classmates? Explain. (2%)

b. How about the damage to the jeepney? Explain. (2%)c. Under the same facts, except the date of occurrence of the incident, this time in mid-1994,

what would be your answer? Explain. (2%)

A. the teacher and the school are solidarily liable for the death and injuries since they are

exercising special parental authority.

B. the damages to the jeepney shall be borne by rozanno's parents. (under what provision of law,

that i do not know)

C. This question left me wondering. What does the examiner supposed to convey? in the end, i

said, my answers remain the same.

In subsection C, it asks the question as to who shall be liable under the same facts, if Rozano'salready a 21-year old adult.

Yes. I agree that the examiner wanted to ask if the same liability on the parents apply even if

Rozano was already 21 years-old. (Yes. Parents are still liable.) However, the problem lies in how

the question was phrased. He/she should have just asked the question directly.

C. Under the same facts, except the date of occurrence of the incident, this time in mid -1994,

what would be your answer? Explain. (2%)

issues about this question:

Rozanno is already 21 at this time and no longer a minor. does the age of the student diminish the

responsibility of the teachers or school in the situation?

Rozanno's act of making a wrong maneuver which caused the collision was the proximate cause of



the death and injuries. at this time he is now 21 years old, is he liable? The field trip is a school -

related activity wherein the special parental authority of the teachers/school is extended. Can

Rozanno still avail of the special parental authority of the teacher/school to the situation?

A. Who is liable for the death of Rozanno·s classmate and the injuries suffered by Rozanno and his3 other classmates? Explain. (2%)

Under the FC and following the doctrine of imputed negligence, the teacher, exercisingspecial parental authority is vicariously liable for damage or injuries caused by theunemancipated minor in their custody and in an authorized school activity.

B. How about the damage to the jeepney? Explain. (2%)

Under A2180 of the CC, the father, in the event of death of the latter, the mother shall beprimarily liable for the acts and omission of their unemancipated child.

C. Under the same facts, except the date of occurrence of the incident, this time in mid-1994,what would be your answer? Explain. (2%)

The child being 21 years of age, A2180 of the CC shall apply. The father, in his absence, themother shall be primarily liable for the damage or injury caused by the acts and omission of their unemancipated child.

XIII

Franz was the owner of Lot E which was surrounded by four (4) lots one of which ± Lot C ± he alsoowned. He promised Ava that if she bought Lot E, he would give her a right of way in Lot C.

Convinced, Ava bought Lot E and, as promised, Franz gave her a right of way in Lot C.

Ava cultivated Lot E and used the right of way granted by Franz.

Ava later found gainful employment abroad. On her return after more than 10 years, the right of waywas no longer available to her because Franz had in the meantime sold Lot C to Julia who had itfenced.

a. Does Ava have a right to demand from Julia the activation of her right of way? Explain.(2.5%)

b. Assuming Ava opts to demand a right of way from any of the owners of Lots A, B, and D, canshe do that? Explain. (2.5%)

A. i think got a wrong answer here. I answered ava cannot demand her right of way due to non-

user of the easement for more than 10 yrs.

B. yes, she can demand, provided it is the way least prejudic ial to the rights of the surrounding lot

owners and provided it is of a shorter distance.



A. Yes, easement is an encumbrance over an immovable property. When Ava bought the property

from Franz with the agreement to give the former the right of way, such e asement was voluntarily

constituted by the parties as part of the contract. The easement therefore attaches to the

property and the same can be demanded whoever the owner of the property.

B. No. Since, easement of right of was already constituted, Ava ca nnot demand anymore from the

surrounding lot for the right of way.

XIV

Primo owns a pet iguana which he keeps in a man-made pond enclosed by a fence situated in hisresidential lot. A typhoon knocked down the fence of the pond and the iguana crawled out of thegate of Primo¶s residence. N, a neighbor who was passing by, started throwing stones at the iguana,drawing the iguana to move toward him. N panicked and ran but tripped on something and suffereda broken leg.

Is anyone liable for N¶s injuries? Explain. (4%)

Primo is liable because of his negligence. he should have constructed a concrete fence enclosing

the pond considering that he is keeping an iguana therein. the contributory negligence here of N is

of no moment. the latter's negligence comes appreciably later than primo's negligence.

This is a classic case for "damnum absque injuria" to apply.

N shall suffer the consequences of his own acts. He cannot impute to Primo any liability because

the injury he sustained was not due to Primo's pet iguana; rather through his own thoughtless and

reckless act. In any case, no liability can set in on the owner or possessor of the escaped pet

because it escaped its enclosure as a result of force majeure.

what is the proximate cause of N's injury?

Can the typhoon be considered a fortuitious event which caused the fence being knocked down,

thereby freeing loose the iguana?

N should be liable for his own injury as its proximate cause was his alarm over the iguana, in that

he panicked and tripped over. The typhoon which knocked down the iguana's fence was a

fortuitious event. Primo was not negligent because he did not foresee this.



Under the law, the owner or possessor of an animal is responsible for the damage which it may

cause although it may escape or be lost. But this responsibility ends only when the damage results

from a fortuitous event or from the person who suffered the damage as in the instant case.

I agree. "Damnum Absque Injuria" Damage without Injury should apply.

XV

A, B, and C entered into a partnership to operate a restaurant business. When the restaurant hadgone past break-even stage and started to garner considerable profits, C died. A and B continuedthe business without dissolving the partnership. They in fact opened a branch of the restaurant,incurring obligations in the process. Creditors started demanding for the payment of their obligations.

a. Who are liable for the settlement of the partnership¶s obligations? Explain? (3%)b. What are the creditors¶ recourse/s? Explain. (3%)

A. A and B are liable. upon the termination of the partnership on C's death and A and B continued

the business by themselves, they become partners by estoppel. consequently, they alone are

liable for partnership obligations contracted by the m.

B. the creditors may resort to the ff:

1. file an action for collection of sum of money to recover the unpaid obligations of A and B with a

prayer for preliminary attachment in order to reach the latter's personal and individual properties.

2. file a petition before the court for the issuance of a charging lien to charge the properties of A

and B in the partnership against the creditors' liens.

XVI

X was the owner of an unregistered parcel of land in Cabanatuan City. As she was abroad, sheadvised her sister Y via overseas call to sell the land and sign a contract of sale on her behalf.

Y thus sold the land to B1 on March 31, 2001 and executed a deed of absolute sale on behalf of X.B1 fully paid the purchase price.

B2, unaware of the sale of the land to B1, signified to Y his interest to buy it but asked Y for her

authority from X. Without informing X that she had sold the land to B1, Y sought X for a writtenauthority to sell.

X e-mailed Y an authority to sell the land. Y thereafter sold the land on May 1, 2001 to B2 on



monthly installment basis for two years, the first installment to be paid at the end of May 2001.

Who between B1 and B2 has a better r ight over the land? Explain. (5%)

B2, who is in good faith of the prior sale has a better right. the sale of the land to him was by

virtue of a special power of attorney.

B1 has no right inasmuch as the sale to him was void in point of law for lack of SPA.

Under Article 1544 of the New Civil Code, in case of double sale of an 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 t hereof, to the person who presents the oldest title,

provided there is good faith.

This isn't a case of double sale. In order for double sale to be appreciated, both sales must be

made by the same vendor. This is to be appreciated as an "agency"-related problem, rather than a

"double sale" problem.

Art. 1544 is the correct approach.

RULE IN CASE OF DOUBLE SALE

The priority of rights in case of double sale shall be governed by the following rules:

The buyer who acquired it in good faith and was the first one to register (also in good faith) thesale have a better right.

If none of the buyers registered the sale, the buyer who acquired it in good faith in possession

shall have better right.

-

DOUBLE SALE (Art. 1544)

Requisites:

two or more transactions must constitute valid sales;

they must pertain exactly to the same subject matter;

they must be bought from the same or immediate seller; and

two or more buyers who are at odds over the rightful ownership of the subject matter must

represent conflicting interests.

Rules of preference:



1. if it is a Personal Property

a. first possessor in good faith

2. if it is a Real Property

a. first registrant in good faith

b. first possessor in good faith

c. person with oldest title in good faith

I agree with you Nehyer23...

I agree that this is not a double sale. For the rules of double sale to apply, there must be two

valid sales of exactly the same property. In this case, the sale to B1 is void. Article 1484 of the

Civil Code provides that the authority to sell the land must be in writing, otherwise the sale is

void. From the facts, the authority of Y was only through an overseas call, thus the subsequent

sale by virtue of such oral authority to sell is void.

I have apprehensions also on giving B2 the better right. Y' s authority to sell is made through an e-

mail. I don't think that this is the one contemplated by law when it provides that special power of

attorney is necessary to enter into any contract by which the ownership of an immovable is

transmitted or acquired.

In sum, however, I might answer: B2 has the better right provided that Y has a valid special power

of attorney to sell the said property.

For purposes of discussion only.

i quote one of the requisites of a double sale above. it says that the two (or more) transactionsmust constitute valid sales. here, only the sale to B2 was valid because it was by virtue of a SPA.the sale to B1 is null and void because in agency the sale by the agent of a real property must bewith a SPA.

without over-emphasizing much, i believe rules on agency here shall govern and not on doublesale

Both Sales are valid. The sale to B1 is valid but unenforceable bec. it does not conform with Art.

1403 of the Statute of Frauds.

Art. 1357. If the law requires a document or other special form, as in the acts and contracts

enumerated in the following article, the contracting parties may compel each other to observe

that form, once the contract has been perfected. This right may be exercised simultaneously with

the action upon the contract. (1279a)



Art. 1358. The following must appear in a public document: (1) 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 a governed by Articles 1403,

No. 2, and 1405

Art. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered

into in the name of another person by one who has been given no authority or legal

representation, or who has acted beyond his powers; (2) Those that do not comply with the

Statute of Frauds as set forth in this number. In the following cases an agreement hereafter made

shall be unenforceable by action, unless the same, or some 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

(e) An agreement of the leasing for a longer period than one year, or for the sale of real property

or of an interest therein

Art. 1405. Contracts infringing the Statute of Frauds, referred to in No. 2 of Article 1403, are

ratified by the failure to object to the presentation of oral eviden ce to prove the same, or by the

acceptance of benefit under them.

Art. 1406. When a contract is enforceable under the Statute of Frauds, and a public document is

necessary for its registration in the Registry of Deeds, the parties may avail themselves of the

right under Article 1357.

the answers above are plausible were it not for the presence of an AGENT. why are we ruling outthe fact that the agent in this case has no valid authority to sell? when an agent sells the realproperty of the principal, the former needs a special power of attorney from the principal,otherwise, the sale is void. that there is AGENCY here is too plain to be unnoticed and mistaken.

Whether or not the sale is valid is immaterial. the question is, who among B1 and B2 has the

better right over the land. The examiner wants the examinee to choose between the two buyers

and justify their answers why choose one rather than the other. That's why I think the answer lies

on the principle prius tempore, potior jure (first in time, stronger in right).

NOTHING FOLLOWS.

Civil Law Bar Examination 2010

Documents

Transcript of Civil Law Bar Examination 2010