Civil Law Review Lecture and Recitation Notes

Glenn Tuazon, 4-AAtty. Ruben F. BalaneSY 2010-11

Midterms – SuccessionFinals – Obligations and Contracts

CIVIL LAW

We are part of the civil law tradition. This is our mindset in approaching problems.

Most of Western Europe countries follow the civil law tradition, as well South America – except for the former British Colonies. Include: Louisiana, Quebec, and parts of Black Africa (Senegal, Ivory Coast, Congo). Asia: Philippines (Spain), Indonesia (Portuguese/Dutch influence), China, Japan.

Common Law: UK, Ireland, All of US except for Louisiana, etc. Civil Law was founded in 450 BC. It is older than the Church. “Rome

conquered the world 3 times: by its arms, faith, and law.” - Thus what we study are developments of the Civil Law tradition.

Common Law began around 1066 AD.

SUCCESSION

General provisions

(774) A mode of acquiring ownershipo It is not delivery (tradition) that vests ownership. Succession

itself is the mode. You do not need delivery of the thing to the successors.

o In due time, the successor acquires a right to possession of the thing, which may be in the hands of someone else. But this is an action of assertion/vindication of possession based on ownership.

What is transferred?o The inheritance. o Inheritance is defined in 776 as the transmissible rights and

obligations of a persono Are there intransmissible rights and obligations?

Yes. 1. Purely personal; 2. Intransmissible by stipulation 3. Intransmissible by operation of law

Are these conveyed by succession? No.

What are examples? A purely personal obligation or right Ex. Right to receive support from one’s

parents Give an example of a transmissible obligation.

X entered into a perfect contract to sell his car to Y, but it has not been consummated. X died. This transfers to his heirs.

o Is a money debt a transmissible obligation? Yes. But is it transmitted directly to the heirs?

No. It is paid by the estate, upon claim by the creditor. (Unionbank v. Santibanez)

Does this not violate Article 774? No. Although the creditors do not claim

directly from the heirs, the effect is the same – what the heirs would have otherwise gotten is diminished, so they are indirectly and ultimately paying the debt.

Does this provision on money claims affect other claims?

No. They are still transmitted to the heirs. When does transmission take place?

o (777) Transmission takes place from the moment of deatho This is legal fiction, because you don’t really physically get it

the inheritance at the moment of death.

o Why is it proper to say the rights to succession “vest” instead of “get transmitted”?

Because you already have that right, albeit inchoate. It only vests upon death of the predecessor.

What are the consequences of Art. 777?o 1. Determination of who the heirs will be is determined at the

moment of death; also, what law is in effect; what portions they will get, etc.

Uson v. Del Rosario: Decedent died during effectivity of the old Civil Code, so the spurious children are excluded (unlike in the NCC, where they would get something)

o 2. Even before the actual partition of the estate, the heir can dispose can dispose of his/her interest over the inheritance.

De Borja v. De Borja – the heir was allowed to onerously dispose of her share even if she did not know how much exactly she would get.

Could she have disposed of it gratuitously? Yes.

o 3. Heirs have a right to substitute their predecessor in an action that survives.

Bonilla v. Barcena Patrimonial right – right to prosecute an action

Updates on the abovementioned jurisprudence:o Lee v. RTC (423 SCRA 497)

An heir can sell his right/interest in property under administration. However, an heir can only alienate such portion of the estate allotted to him in the division of estate.

So he can only sell his ideal or undivided share in the estate, and not specific properties.

o Liu v. Loi (405 SCRA 316) An heir can sell his interest in the decedent’s estate,

but always subject to the rights of the creditors and the result of the partition.

So if you end up having no share in the estate, then what you sold is subject to the creditor’s claim.

o Heirs of Conti v. CA (300 SCRA 345)

Reiterated Bonilla case: prior settlement of estate not necessary for heirs to commence action or continue action pertaining to the estate.

o Heirs of Pinchay [?] v. Del Rosario Prevented from filing action because the plaintiffs

have not established proof that they are the decedent’s heirs.

How to resolve: you can continue an action if you are indisputably an heir.

What are the three kinds of succession?o 1. Compulsoryo 2. Testamentaryo 3. Intestate

In absence or default of valid will (781) is a WRONG provision. The heirs acquire rights to the

inheritance upon death. Any fruits/accruals after will indeed belong to the heirs, but not through succession, but through accession discrete or continua.

What is the importance of distinguishing between heirs and legatees/devisees?

o This is an important distinction because of the rules on preterition.

o Heirs – succeeds to an aliquot part of the estate, whether through testate or intestate

COMPULSORY SUCCESSION

Legitimes

(886) Legitime –o A part of the testator’s property

An aliquot or fractional parto Which he cannot dispose of gratuitously

Why is “gratuitously” underlined? Because he can dispose of it onerously. He

cannot donate to an extent that will eat into the value of the legitime.

But he can sell his properties. Onerous dispositions do not impair the legitime. (Joaquin v. CA)

So he can gratuitously dispose? YES. But, he cannot eat into the legitime.

Manongsong v. Estimo: Sale does not affect the value of the decedent’s estate. There is an exchange of value.

Who are the compulsory heirs? – (887) o 1. LC and descendantso 2. LPs and ascendants (in default of #1)o 3. Widow or widowero 4. ICs

Which are primary and which are secondary?o Primary – those who are never excluded

Legitimate children/descendantso Secondary – those who receive only in default of the primary

Legitimate parents/ascendants Illegitimate parents

N.B. does not go beyond parentso Concurring compulsory heirs

Surviving spouse Illegitimate children/descendants

What are the two principles?o A) Exclusion and B) concurrenceo These two principles simultaneously operate to establish

combinations of compulsory heirs Legitimary combinations – [recit]

1 LC, 1 IC LC = ½; IC = ¼1 LC, 2 IP LC = ½ 3 IC, 2 LP, SS LP = ¼ each; 3 IC = 1/12 each; SS =

1/82 IP; SS IP = 1/8 each; SS = ¼ 2 AC; 1 LC; 1 IC LC = 1/6 each; IC = 1/121 LC; 2 IC; SS LC = ½; SS = ¼; IC = 1/4 each, but

reduced to 1/86 LC; 3 IC LC = 1/12; IC = 1/245 IC; SS SS = 1/3; IC = 1/15

1 AC; 2 LP; SS AC = ½; SS =1/4; LP = 03 LGP; SS 1 LGP (one line) = ¼; 2 LGP (other

line) = 1/8; SS = ¼ 1 IC; SS IC = 1/3; SS =1/32 AC; 2 LP AC = ¼ each3 LC; 2 IC; SS LC = 1/6 each; IC = 1/12 each; SS =

1/62 AC; 1 LP; SS AC = ¼ each; SS = ¼

Legitimate children or descendantso Get a constant ½

Note: There are only three cases where nobody gets ½ :

SS – 1/3; IC – 1/3 SS, exceptional circumstance of in articulo

mortis – 1/3 SS – 1/4; IP – 1/4

o They are the primary compulsory heiro The nearer exclude the more remote. So children exclude

grandchildren.o BUT the grandchildren can inherit if representation is proper

Predecease Disinheritance Incapacity/Unworthiness

o N.B. If all the children renounce, then the grandchildren will all inherit equally (per capita)

But if only a few renounce and not all, the remaining child/children will get what is left to the exclusion of the grandchildren

o The adopted child is, for purposes of succession, in the exact position as a LC

Must be legally, not de facto adoptedo Does the adopted child retain the right to succeed his

biological parents? This is still an open question. There is an obiter in the

Stephanie Garcia case that the adopted child does, but it is a mere obiter, and it cites a Family Code

provision that might have been repealed by the Domestic Adoption Act.

Legitimate parents or ascendantso Nearer exclude more remote. Parents exclude grandparents.o Equal division by line. So paternal and maternal lines split by

half then divide between the parents. Surviving spouse

o Before, in the Spanish Code, she cannot concur with LC; she would only get usufructuary right over the property of the LC. Now, she can concur, and is in fact always an heir. But her share is variable.

o What kind of marriage is needed to become a SS? Valid or voidable

o What is the effect of legal separation? Final decree will disqualify the guilty spouse from

inheriting through compulsory, testamentary, or intestate succession.

Unless there is reconciliation. Lapuz v. Eufemio: If pending a case for legal

separation, one of the spouses dies, the action is automatically extinguished and there will be no LS.

o What are the prerequisites to have the SS inherit only 1/3? 1. SS inherits alone 2. The marriage was in articulo mortis 3. Decedent dies within 3 months of the marriage 4. Couple did not live together for at least 5 years 5. The decedent was the one at the point of death

upon marriage Illegitimate Children or descendants

o No more distinction between natural and spurious children.o What if they concur with legitimate children?

Always get ½ of one LC’s share Their share can be reduced pro rata if the shares

exceed 1 whole. They are less preferred than SS and LC.

o What if they do not concur with legitimate children? Variable shares. If with SS, then 1/3. If with IP, then

¼. Alone, ½ collectively. If with LP and SS, then ¼.

o What is the rule on representation? The illegitimate children of an illegitimate child can

represent the latter. The illegitimate children of a legitimate child cannot represent the latter.

Illegitimate Parentso Excluded by BOTH legitimate and illegitimate children.o No succession for illegitimate ascendants beyond IPs

Preterition (854)

What is preterition?o Total omission of a compulsory heir in the direct line from the

inheritance.o What is the mistake of the judge in Seangio?

He said that it is total omission from the will. It must be total omission from the inheritance.

When is a compulsory heir completely omitted?o When he gets nothing in the way of:

1. testamentary (institution of heir) disposition 2. legacy or devise 3. intestate succession 4. donation inter vivos

Don’t forget donation inter vivos! …and he was not disinherited.

Why does it mention “compulsory heirs in the direct line”? Who is a compulsory heir not in the direct line?

o The surviving spouse.o So who is covered?

It can be LC, IC, and as circumstances apply, LP or IP

o How do you determine who are the compulsory heirs? Determine only at the time of death because that is

only when the rights to succession vest. What if there is something is given but is insufficient?

o Remedy is completion of legitime (906) What is the effect of preterition?

o Annulment of the institution of heir. But legacies and devises are valid in so far as they are not inofficious.

o If there are no legacies or devises, the entire estate is thrown open to intestacy.

Does the fact that an heir is not mentioned in the will mean that he is preterited?

o No, if the will does not dispose of the entire estate. (Seangio) If someone dies intestate, can there be preterition?

o No. Does the fact that an heir is mentioned in the will mean he is not

preterited?o Not always! [ex. there was no disposition in his favor]

X has two children, A and B. X made a will giving B ½ of his estate, and the other half to Ateneo. X did not give A anything by way of donation inter vivos either. But A predeceased X. Is there preterition?

o No. A predeceased. You only determine fact of preterition upon death of testator. (JLT Agro)

[Same facts] A, however, had a son A1. A predeceased X still. Is there preterition?

o Yes. But not of A, but of A1.o Does it matter than A1 was born after the will was made?

It does not matter. The reckoning point is still time of death of the testator, not time of making the will.

o What is the effect? The entire estate is thrown open to intestacy because

there are no legacies or devises. X said “I will disinherit my son B because he took up law, not

medicine.” Is this a valid disinheritance?o No. It is not one of the grounds. It is rendered ineffective, and

therefore, there is no preterition. [Same facts] But the second sentence now says, in addition, “…so

I give ½ of my estate to Ateneo, and the other 1/2 to my brother Z.” What happens here?

o There was no preterition. So X will get his legitime because the disinheritance is ineffective. The dispositions in favor of Ateneo and Z are valid but inofficious, so these will just be reduced but not rendered invalid. [Take note of this scenario]

o Why does it become like this? Because preterition will only apply when there is inadvertent omission from the will (“without the heir being expressly disinherited”). An ineffective disinheritance, thus only results into the heir being able to demand his rightful share. Preterition does not vest.

Disinheritance (915-923)

What is the effect of disinheritance?o Primary effect – exclusion from the legitimeo Actual effect – TOTAL exclusion of the heir from all manner of

succession: exclusion of the heir from the legitime and the intestate portion, if any, and also from testamentary succession is instituted in an earlier will.

Requisites?o 1. Made in a will

Can you disinherit in a medium other than a will? No. ONLY through a will.

o 2. Done for a cause specified by law.o 3. Specify the causeo 4. Must be unconditionalo 5. Must be totalo 6. Cause must trueo 7. If the truth of the cause is challenged, the truth of the cause

must be proved by the proponent What is the policy of the law?

It is reluctant to grant disinheritance. This is why the burden of proof is automatically with the proponent of the will. The rebutting heir is not tasked to prove the denial.

Take note of the following:o 1. Some of the requisites require conviction by final judgment.

Example: Number 1. Mere attempt to take the life is not enough; there must be conviction.

But some do not need final conviction, like – Maltreatment by word or deed Living a dishonorable life

o 2. The grounds are exclusive.

o Self-study the grounds – RFB Is there representation in disinheritance?

o Yes, if the disinherited heir is a descendant.o No, if the disinherited heir is an ascendant.o N.B. representation does not apply to testamentary succession

(obviously). How can disinheritance be lifted?

o Reconciliation between the parties.o It may be oral, in writing, or by conduct (implied).

What is the effect of reconciliation?o It removes the disinheritance.o Does he recover legitime?

Definitely. The heir recovers his right to the legitime.o Does he receive anything by intestate succession?

He recovers the right to the intestate portion, if there is any left.

o Does it revive testamentary dispositions in a prior will? Yes, unless it was revoked.

Unworthiness (1032-1040)

1032 enumerates causes for incapacity to succeed/unworthiness and there is a close parallel with disinheritance. As with disinheritance, there is need for final conviction for some, not for others, and one requires exoneration.

First ground (actually three) :o 1. Abandonment of childo 2. Inducement by parent for daughters to live a corrupt or

immoral lifeo 3. Attempt against virtue of daughter

This article refers to unworthiness of compulsory heirs. Parents who have abandoned their children. But what if the child is under the authority of grandparents, will this apply?

o RFB thinks so. It should probably be “ascendants who abandon descendants.”

Abandonment has no precise meaning. How do we understand it here?

o When the parent/ascendant culpably neglects the support of the child. “Culpably” means without justification.

o What about giving consent to adoption, is it abandonment?

No. It is not a culpable act. It is encouraged by law. Re: inducement. What about grandchildren/granddaughters?

What about grandsons?o A liberal interpretation would include all these.

Attempt against virtue?o This should include grandparentso Does this need conviction?

No.o What does “attempt” cover?

All stages of commission. Also not limited to rape: it should cover other offenses

against chastity. Are the grounds exclusive?

o Yup. Do you need actual disinheritance?

o No. The law itself excludes the heir. What is the extent of the disqualification?

o Total, like in disinheritance – no compulsory, testamentary, intestate

Is there representation here?o Yes, in the same way as disinheritance. But again, it has to be

a descendant. How does one set aside unworthiness?

o 1. Written condonationo 2. Execution by offended party of a will with knowledge of the

cause of unworthiness Why is the code stricter in unworthiness than disinheritance?

o This is an inconsistency, because there are many grounds common between both unworthiness and disinheritance. This happens when if the offended party avails himself of that ground and actually disinherits.

o Ex. X is the son of Y. X attempts to take Y’s life. A case for frustrated parricide was filed, and he was convicted with final judgment. It is a common ground in unworthiness and

disinheritance. So in this case, he is automatically unworthy. But Y still disinherits X, which he can do. There is no problem here; he is just “double dead.” But what if X and Y reconcile? Y admitted X back into his house, and forgave him orally. Under the rules on disinheritance, reconciliation is enough to set aside the disinheritance. But because there is no written pardon, the unworthiness persists.

o How do we resolve this? Commentators like Tolentino say that it is the rules on

disinheritance that prevail, because disinheritance is the express will of the aggrieved party. It should prevail over unworthiness.

If the facts are the same but Y did not disinherit X, unworthiness will apply. So there has to be a written pardon.

D of child/des D of parent/as D of spouse UnworthinessAttempt against life

Attempt against life

Attempt against life

Attempt against life

Accusation of crime

Accusation of crime

Accusation of crime

Accusation of crime

Adultery/conc. Adultery/conc. Adultery/conc.Force to change will

Force to change will

Force to change will

Force to change will

Refuse to support

Refuse to support

Refuse to support

Maltreatment by word/deedDishonorable lifeCrime with civil interdiction

Abandoned, induced to corrupt life, attempt v. virtue

Abandoned, induced to corrupt life, attempt v. virtue

Loss of P.A. Loss of P.A.Attempt by one parent against life of other

Cause for LSPrevent from making will or

revoking oneFalsification or forgery of will

Representation

Definition of representation?o Article 970.o Comment on “fiction of law”?

This is unnecessary. It is a right created by law, after all.

o Comment on the term “representation”? It’s a misnomer. Because what he gets in succession

belongs to him! He is actually subrogated. When does representation apply?

o ONLY Predecease, Disinheritance, Unworthiness/incapacityo There is no representation in renunciation

In what kinds of succession does representation operate?o 1. Compulsoryo 2. Intestate

In what lines does representation obtain?o N.B. In both compulsory and intestate succession there is a

direct line and a collateral line. The direct line you have the ascending and descending. Collateral are not ascendants or descendants, but are related to you up to the 5th degree.

o Representation – operates ONLY in the descending direct line. NEVER in ascending.

What is the rule on adopted children?o Cannot represent nor be represented, because the legal

relationship in adoption is strictly between adopter and adopted.

What is the rule on representation by illegitimate children?o This is the “iron curtain” provision.o An illegitimate child of a legitimate child cannot represent the

latter.o An illegitimate child of an illegitimate child can represent the

latter.

o If the child is legitimate, he can obviously represent either illegitimate or legitimate parent.

What is the rule on shares of the succeeding representatives?o Since they are only stepping into the shoes of the person

represented, they could get unequal shares. Ex. A had 2 children, B had 3. Both A and B predecease their father, X. The 2 children of A split A’s share by ½ each and the 3 children of B split B’s share by 1/3 each.

o N.B. Take note that the rule changes when ALL, not just some, of the children renounce. The grandchildren will inherit per capita.

o What if all children predecease? The grandchildren still inherit by representation, and

not per capita.o IMPT. How does the rule change for the sole case of

representation in the collateral line? A, B, and C are brothers and sisters of X. If A and B

predecease X, then the children of A and B inherit per representation.

But if ALL of A, B, and C predecease – the nieces and nephews of X will inherit per capita. NOTE that this is different because in the descending line, it will be still succession by representation.

o Is it even relevant to talk about disinheritance or unworthiness for collateral heirs?

It’s not. You cannot disinherit a brother or sister because he’s not a compulsory heir.

o What if there is renunciation by all collateral heirs? Same rule as direct line heirs: the nephews and

nieces will inherit per capita. What are the 3 rules on qualification?

o 1. Representative must be qualified to succeed the decedent (e.g. C must be qualified to represent A)

o 2. Representative need not be qualified to succeed the person represented (e.g. C need not be qualified to succeed B)

o 3. The person represented need not be qualified to succeed the representative (e.g. B need not be qualified to succeed C)

What is the difference between representation OF and BY a renouncer?

o Representation OF renouncer does not happeno Representation BY renouncer can happen.

Illustrate this rule. ABC. C renounced B’s inheritance. But C can represent B if B predeceases A, because C is inheriting from A, not B.

Reserva troncal

What is Reserva Troncal?o See Article 891

What’s the purpose of reserve troncal?o To keep property or return property to the line of origin.

(Sanchez Roman view) What are the requisites of RT?

o 1. Person acquires property from ascendant or brother/sister through gratuitous title

o 2. Dies without legitimate issueo 3. Inherited by another ascendant through operation of lawo 4. There are relatives within the 3rd degree of consanguinity

belonging to the line from where the property came Why is the reserve troncal included in compulsory succession?

o The RT can limit the operation of the legitimeo If that part which is reservable passes as legitime, the law says

that it should pass with no burden. But if it passes as RT, it will be under the burden of RT because the law says so.

o It’s better to take it up as part of compulsory succession because it can become an encumbrance on the legitime.

What are the two transmissions that have to take place?o 1. By gratuitous title, from the origin to the prepositus

This can include donation or any kind of successiono 2. By operation of law, from the prepositus to the reservista

ONLY compulsory or intestate succession What if there is only one transmission?

o There is no RT. There have to be two transmissions for there to be RT.

o Solivio: there was just one transmission from the mother to the son, by donation. When the son died, he had no ascendants at all or descendants either. Because there was no other

ascendant, the second transmission could not happen. The closest relatives are two aunts, who are not ascendants.

Who are the parties in RT?o But first, two basic rules:

1. All of these parties must be legitimate. If any of the relationships is illegitimate, there can be no RT.

2. No further inquiry beyond the origin is requiredo 1. The origin –

Ascendant of prepositus, of any degree, of either line Or brother/sister of prepositus, either full or half blood

If full blood, Manresa says “yes.” JBL says “no, because there is no possibility of the property leaving the line. The ascendant lines are common.”1

o 2. Preposituso 3. Reservista

Has to be a different ascendant from the origin Must he be another ascendant from another line

or can it be same line? If another line, no question he can be a

reservista. (Ex. F S M) If same line (Ex. GF grandson F [same

line as grandfather, since he is the son of the grandfather]), according to JBL, there is no RT. According to Manresa and Sanchez-Roman, there is an RT.2

o 4. Reservatarios They must be related within the third degree, in

relation to the prepositus Of course exclude legitimate descendants, since if the

prepositus had decendants, there would have been no RT

1 The difference is explained by different theories. JBL’s view is that RT is curative or remedial; if it does not leave the line, no need for RT. Manresa says that it is preventive, too – the RT seeks to prevent the property from leaving the line as well.2 Again, the source of disagreement is a different in theories on nature and purpose of RT. RFB leans towards Manresa’s and Sanchez Roman’s view.

Who are these possible reservatarios? Parent, grandparent, great grandparent Brother, sister, nephew, nieces, uncles,

aunts Note: in the situation that JBL seeks to exclude (but

Manresa favors), there is no need to make a distinction since there is no change in lines.

When do you determine who the reservatarios? When the reservista dies. They do not have

to exist when the prepositus dies. If there are several, but of different degrees, how

do you determine who gets what? Tolentino: Selection is made on preferential

basis, not integral and indiscriminate, as Scaevola believed.

Apply the rules on intestate succession (direct over collateral). Another rule of intestacy that applies is representation of nephews or nieces of brothers/sisters [so the brothers/sisters do not exclude nieces/nephews].

What is the consequence? Gonzales: The reservista cannot choose, by

will who the reservatarios will be. The law chooses for her.

Should the reservatario be related to the origin? A1 and A2 have a child, B1. B1 is married to

B2, and have a child C. A1 donates property to C. B1 died, when C dies, it goes to B2. Thus, there is an RT here. When B2 dies, A2 survives and claims the property as reservataria (since she is related by 2nd degree to C, the prepositus).

MANRESA – she is a reservataria, she meets the purpose and requirements

SANCHEZ ROMAN – she is not, because you didn’t return it to A1’s line and A1’s relatives. A2 is not related .

So what is the majority view?

The reservatarios must be related by blood to the origin.

This is not yet established by jurisprudence, but this is a good view point.

What is the nature of the right of the reservista? (Edroso)o 1. Right of ownershipo 2. Subject to the resolutory condition that there will be

reservatarios present upon the reservista’s deatho 3. The right is alienable, subject to the same resolutory

condition4. The right of ownership is registrable

What is the right of the reservatarios? (Sienes)o 1. Right of expectancyo 2. Subject to a suspensive condition, that there will be

reservatarios present upon the reservista’s deatho 3. The right is alienable, subject to the same suspensive

conditiono 4. The right of expectancy is registrableo Don’t these two rights of registration conflict with each

other? No. There’s only one title. The right of the reservista

is annotated as ownership; the right of the reservatario is annotated as an encumbrance.

What kind of property can be reserved?o Any type

What are the rights and obligations of the reservatarios and reservistas?

o Reservista prepares inventoryo Right of reservatarios to annotate in case the reservista

alienates (within 90 days from acceptance by the reservista)o Appraise the movableso Secure by means of mortgageo Registration is demandable Sumaya

What are the causes for extinguishment of RT?o 1. Death of reservista (causes it to transfer)o 2. Death of all the reservatarioso 3. Renunciation by all the reservatarios, and none is born

subsequently

o 4. Total fortuitous loss of the propertyo 5. Merger or confusion of rightso 6. Prescription or adverse possession

TESTAMENTARY SUCCESSION

In general

Testamentary succession can never impair the legitime What is a will?

o An act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate to take effect after his death

o Why is this inaccurate? “Act” is too broad. Instrument is a better word.

What are the two kinds of wills?o Holographic and attested/notarial

What are the three common requisites (first two, textual; one is non-textual)?

o 1. It must be in writing (textual requirement)o 2. Executed in a language or dialect understood by the

testator(textual requirement) Is this rule mandatory?

Definitely. So can the will be translated to the testator?

No. It must be written in a language known to him. Do not confuse this with the attestation clause, which can be translated.

Must the will state it was written in a language known to the testator?

No. It can be shown by extraneous evidence/evidence aliunde.

o 3. Testamentary capacity Who can make a will?

Natural person (juridical person cannot make a will)

Who are the two classes of disqualified persons? Those below 18 years old Those of unsound mind

Putting it positively, one must be a natural person 18 years old or above and of sound mind.

What must you know to establish a sound mind? 1. Character of estate 2. Proper objects of your body 3. Nature of the testamentary act

Is there a presumption? Yes, a rebuttable presumption of

testamentary capacity When is there no presumption?

o 1. If the testator, 1 month or less before the making of the will, was publicly known to be of unsound mind

o 2. When the testator has been placed under guardianship for insanity

What is the presumption then?o There is a presumption of insanity,

not just a presumption of sanity. Again, this is rebuttable

A requirement is that the testator must sign the will and every page at the left hand margin, except the last.

How can the testator usually sign?o He writes his name

What are the other recognized ways?o Affixing thumbmark (Matias v. Salud)

Is the thumbmark for the testator always a valid way to sign the will?

Yes. Under all circumstances, even if not infirm or ill.

o Is a cross allowed (Garcia v. Lacuesta)? No, in general. THE EXCEPTION: If that is his usual way of signing.

There are two ways of interpreting the word “the end,” where the testator’s signature should be. What are these?

o 1. The physical end, where the writing stops

o 2. The logical end, if there are non-dispositive portions written in the will

Must the signing always be at the left margin?o No. It can be any margin.o Why is there no requirement for marginal signing on the

last page? Because it would be superfluous. He also signs at

the end. The testator must sign in the presence of the witnesses. The

witnesses must also sign in the presence of the testator and of one another. What does the law mean by “in the presence”?

o Nera: The requirement of presence does not mandate that the person must actually see the other party signing; what is required is that he could have seen, by casting his eyes in the proper direction (without changing his physical position).

One of the options given to the testator is that he/she may ask someone else to sign for him, provided some conditions are present (1. Express direction; 2. In his presence).

o Should the testator be physically prevented from signing or have any particular reason to get an agent?

No.o What should the agent write?

He must write the testator’s name It must be in the agent’s own handwriting

o Must the agent write his own name? It is not required.

Must the attestation clause be signed?o Yes.o By whom?

The witnesses.o What about the testator?

No. The attestation clause is purely an affair of the witnesses.

Where should the witnesses sign the attestation?o At the end of the attestation clause.o Can they sign at the margin or elsewhere (beside)?

No. The attestation clause is deemed unsigned. What must the attestation clause state?

o 1. Number of pages of the willo 2. Fact that the testator signed the will and all the pages

thereof, or caused some other person to write his name under his express direction, and in the presence of the instrumental witnesses

o 3. That the witnesses signed the will and all the pages thereof in the presence of the testator and of one another

Must the attested will bear a date?o No.o Why?

The certification of the acknowledgement will be dated anyway.

o Who certifies? The notary public – as required by the notarial law.

Should a holographic will be dated?o Yes.

What if the notary public acted outside his notarial jurisdiction?o It is void and tantamount to not being notarized.

If the will was notarized by one of the witnesses, who was also a notary public, will this make the will void?

o No, if there are three other witnesses apart from the notary.o If there are less than three witnesses including him?

The will is void. There is a failure to meet the required number of witnesses.

o But can a notary public be a witness? Definitely. But the notary public cannot be counted as

a witness, and the witness cannot be the notary public too. For the latter, you are undermining the notary public’s impartiality.

What is the requirement if the testator is blind?o Two readings – by the notary public and by one of the attesting

witnesses.o Is this mandatory?

Yes. Non compliance makes the will void. Should this mandatory nature extend to illiterate

deaf mutes? Yes.

o Must the will or attestation clause mention compliance with this mandatory requirement?

No. It can be established by extrinsic evidence.o Garcia: The lawyer who assisted the testator read the will.

It was read only once. The lawyer, however, read it aloud in the presence of the attesting witnesses and the notary public, who had their own copies of the will. The testator was also listening. Art. 808 was hence not complied with. But is this valid?

This is valid, because there was substantial compliance. The intent of the law was achieved – to prevent fraud upon the testator.

o Alvarado: Invalid because it was done by the lawyer who drafted the will who read it aloud, so it wasn’t even one of the two parties enumerated. And he read it out loud only once.

Art 809 is the provision on substantial compliance with respect to the attestation clause, which needs three things (# of pages, fact that the testator signed at the end in the presence of the witnesses, and that the witnesses did the same in the presence of the testator and of one another). How strict must this be in light of Art. 809?

o In the code itself, there is no clear rule about how liberal interpretation could be.

o Caneda: defect was failure to state that the witnesses signed in the presence of the testator and of one another. HELD: This was a fatal defect. Adopting JBL Reyes’s suggested standard, it could not be remedied by visually examining the will.

o Azuela: Deficiency was failure of the clause to state the number of pages, which was left blank. HELD: valid omission, because it can be supplied by a visual examination of the will.

Requirements of a Holographic will?o Completely written, dated, and signed by the testatoro Roxas v. de Jesus: Feb/61 was held as a sufficient date – this

is a problematic decision. Fortunately, there was no other will also made in Feb/61, which could have possibly repealed it. In a very liberal decision, it was upheld.

o Where should the date be?

There was no mention where it should be. It could be in the body.

o Can you sign by a thumbmark, as in an attested will? Seems unlikely. It must be “written by the hand” – not

a thumbmark. Though there is no jurisprudence on this.

813-4 – dispositions after the signatureo Some commentators say that this implies that the signature

must be at the bottom of the holographic will.o If there is only one additional disposition, it must be written and

signed by the testator.o If there are several, what is the rule?

1. Dated and signed 2. Or each additional disposition may be signed,

provided the last one is dated and signed Kalaw v. Relova: Cancellation of the name of the original heir and

writing above it of the name of another heir – invalid because it was not validated, because it was not signed.

o But the court weirdly held that the cancellation was valid! But it was not signed. This is an odd decision, because it had an internal contradiction.

Rules on probate Codicils and incorporation by reference (825 and 827)

o Article 825 defines a codicil. This is exam material. It assumes the existence of a prior will. You cannot have a codicil without a prior will. It can explain or alter the prior will.

o Sometimes it’s hard to determine whether it is a codicil or a second will.

If it makes an independent disposition, it is a second will.

If it alters, modifies, changes, it is a codicil.o But honestly, this distinction is academic, because the

requirements of a codicil and a will are just the same.o 827 – An incorporated document. It is attached to a will and is

intended to explain. It cannot make a testamentary disposition because otherwise, it has to comply with the requisites and form of a will.

Requisites?

1. It must predate the will 2. It must be signed on every page by the

testator and witnesses, except if it is voluminous

3. It must be clearly referred to in the will 4. It must referred to in probate as that

document So since it requires witnesses, can you not have

an incorporated document with holographic wills? Some say you cannot because there are no

witnesses. RFB says that you must interpret it liberally, and since there are no witnesses, then it just means it’s just the testator that signs.

Two modes of testamentary succession:o 1. Institution of an heiro 2. Institution of devisee or legatee

What is the permissible form of instituting a successor, whether heir, devisee, or legatee?

o Only thing required is that the identity of the successor is adequately determined in the will. No need to mention by name, as long as the successor’s identity is determinable.

“I institute my brothers and sisters to ½ of the share of my estate.” What does this mean?

o Siblings, whether legitimate, illegitimate, or half, inherit in equal shares.

o This is different from intestacy, where whole, half, and illegitimate siblings inherit in 2:1:0 ratio. (You cannot inherit from your illegitimate sibiling)

What is the rule on statement of false causes on a will?o In general, it is deemed not written.o Unless it is shown that:

1. Cause must be false 2. It must be shown to be false 3. It must appear on the face of the will that the

testator would not have made the institution had he known of the falsity of the cause

If heirs are given different fractions each, and the total is less than the free portion, what happens? (852/3)

o The rest of the free portion goes into intestacy.o But what if it is shown that the testator intended to

dispose the entire free portion? If the disposition is less than the portion, you increase

proportionately. If more, you decrease proportionately.

924-959 – Legacies and devises

Some provisions are inaccurate. It is estate that is liable for legacies and devises, not compulsory heirs as 925 says. You cannot charge the compulsory heir for the legacies and devises. Exception: indirect legacy

929-937 outline:o 1. General rule: you give away what your interest covers. No

more, no less. If you own the whole thing, you give the whole thing.

Exception – you can give more than you own. This estate will attempt to acquire it, but if the estate fails, the monetary equivalent is given.

Exception 2 – you give less than you own.o 2. Legacy or devise of a thing belonging to another – under the

ff rules, you can: A) if the testator gives an order to acquire it, the

estate tries. If the owner refuses to sell, the estate gives the monetary equivalent.

B) If the testator wrongfully believed he owned the thing, the disposition is void.

Exception – if subsequent to making the disposition, the testator acquires the thing gratuitously or onerously.

If he knew he did not own it, but did not order for its acquisition there is an implied order to acquire.

o 3. The legacy or devise of a thing already belongs to the devisee or legatee

If a thing given already belongs to the legatee or devisee, the disposition is void

Subsequent alienation is not validated, unless as Manresa says, the alienation is to the testator himself

If the thing belongs to somebody else when the will was made, and he erroneously believed it belong to him, and later, the legatee or devisee acquired the thing –

It is still void, because the testator was in error

If the testator knew it did not belong to him, and the thing was acquired onerously by the devisee/legatee, the estate pays

o Except – if acquired gratuitously, then there is nothing else to be done

If the thing was owned by the testator at the making of the will, but the legatee/devisee acquired the thing from the testator after, the disposition is void (because subsequent disposition, even to the recipient himself, renders the legacy/devise useless)

o 4. Legacy/devise directing the estate to remove the encumbrance of property of another the estate pays for it

Pledge/mortgage estate must pay for it first Any other kind of encumbrance like easement or

encumbrance passes with the thingso 5. Legacy of credit or remission

i.e. giving to the recipient the debt owed to me by another person effective as to remaining debt owed upon the testator when he dies

If the testator sues after making the disposition ipso facto the legacy is revoked. Mere filing revokes the disposition. Extrajudicial demand does not revoke the disposition. It must be a complaint for collection.

If generic, on the debts existing when the disposition was made. Ex. X owed Y 2 debts in 1999. Y, in his will, gave Z the debts X owed Y. X owed Y 3 more debts in 2001. Y died. What debts transfer?

Just the 2 existing when the will was made. What is the order in 950 for reduction?

o 1. Remuneratoryo 2. Preferredo 3. Legacy for supporto 4. Educationo 5. Specifico 6. All other, pro rata

What is the rule in 911?o 1. Reduce pro rata non-preferred legacies and deviseso 2. Reduce pro rata preferred legacies and devises

When do you use which?o If the reason for reduction is impairment of legitimes, use Rule

in 911.o If the reason for reduction is something else, use Rule 950.o What other reasons could exist?

A testator has no compulsory heirs, but he gave away too many legacies and devises, by sheer mathematical necessity. Rule 950 is followed.

Or maybe the testator already covered for the compulsory heirs’ legitimes through donations inter vivos, so the remaining parts are all free portion.

When is a legacy or devise without effect?o 1. Transformation –

Converted the thingo 2. Alienation

Either onerous or gratuitous, and even if the thing reverts to the testator

Exceptions? 1. Reversion was caused by annulment of

alienation because there was vitiated consent

2. Reversion due to redemption in a pacto de retro sale

o 3. Total loss before the testator’s death

Rules common to heirs, legatees, and devisees

Capacity to succeed:

o In fact, the basic rules are common to all kinds of succession (Alive + qualified to succeed at the time succession opens. There is no exception here.)

Art 1025 – The heir, legatee, or devisee must be living when the testator dies. There is NO exception, contrary to what this provision suggests.

o Representation is not an exception because the representative must at least be conceived already.

o For juridical persons, it must exist juridically when the testator dies.

1027 – First 5 paragraphs are important because they enumerate instances where one is incapacitated to succeed in testamentary succession. It does not apply to other kinds of succession.

o Just memorize this list: 1. Priest who head confession of testator during last

illness or minister of gospel extending spiritual aid in this period. Requisites:

A. Will executed during last illness B. Spiritual ministration extended during last

illness C. Will executed during or after the spiritual

ministration 2. Relatives of priest/minister within 4th degree or his

institution 3. Guardian, from ward before final accounts of

guardianship approved Except if guardian is A/D/sibling/spouse

4. Attesting witness to the execution of a will, spouse, parents, children, or anyone claiming under that witness, spouse, parent, or children

Put in the exception, where there are three other competent witnesses to the will, under here too

5. Physician or health officer who took care of the testator during last illness

o Take note especially for the priest and the doctor. 1028 – only applies to testamentary succession: extend to prohibited

donations in 739

1032 disqualifications – these are general; these bar the DQ heir from compulsory, testamentary, or intestate succession

Substitutions

857-870 – Substitutions. You cannot have substitution in compulsory and intestate succession.

What are the two kinds of substitutions?o 1. Vulgaro 2. Fideicomissaryo The code seems to enumerate two more:

1. Reciprocal 2. Compendious

(Several heirs one substitute) …but these actually are just variations. They go into

mode. What is substitution vulgar?

o Instituting an heir in default of the one instituted Predecease, incapacity, renouncement

o How do you make it? Enumerate all the three causes

o Can you restrict vulgar to 1 or 2 grounds? Yes. Just specify.

What are the requisites for fideicomissary?o 1. First heir takes the inheritanceo 2. Second heir takes the thing after tenure of the first heiro 3. The second heir must be one degree from the first heir

What does “first degree” mean? It refers to relationship.

o 4. The first heir must have absolute obligation to preserve and transmit

o 5. Both heirs are alive and capacitated at the death of the testator

What is the tenure of the first heir?o What is specified by the testatoro If not specified, it is the lifetime of the testator

Does the first heir have a right to alienate?o NO. This rule is unlike the reserve troncal.

Conditions, terms, modes

These all burdens in succession, especially since the testator has free disposal of his property.

What are the types of conditions?o Suspensiveo Resolutory

What are the special rules on suspensive conditions?o An impossible condition (873) – considered not imposed. The

disposition is valid and becomes pure.o What about condition not to contract first marriage?

ALWAYS considered not writteno What about subsequent marriages?

Generally void, unless imposed by the deceased spouse or the latter’s ascendants/descendants

o BUT what is allowed is to impose a usufruct or some personal prestation as long as one remains unmarried or a widow is valid.

o A disposition on condition that the heir/legatee/devisee must also in turn make a disposition in favor of the testator or another person?

The entire disposition is void. Take note of this. The purpose is to prevent the whole system from being corrupt.

When does a suspensive condition take effect?o If both conditions exist: 1) the heir is alive when the testator

dies, 2) the heir is alive when the condition happens What happens while waiting for the suspensive condition to

happen?o Place the property under administration of

executor/administrator What is the difference between a term and condition?

o A term is certain, a condition is not. What are the two types of terms?

o Suspensive termo Resolutory term

When does an institution based on a term vest?

o A disposition with a term vests upon the death of the testator, unlike a conditional disposition (esp. suspensive) which only vests upon the happening of the condition. Since a term is certain to happen, it follows the general rule in 777 that it vests upon death.

So must the heir be alive when the term arrives? No. Just when the testator dies. So he can transfer his vested right upon his

own successors. What do you do as you wait for a suspensive term to arrive?

o Governed by 885. While you wait for the term to arrive, you give it to the legal heirs (intestate heirs).

For resolutory terms?o After the testator’s death, you give it to the instituted heirs, and

when the term arrives, they turn it over to the legal heirs. A condition suspends, but not obligates. A term obligates, but does not

suspend. A term does not delay the efficacy of the disposition, but it places an obligation upon the instituted heir (even suspensive, since the instituted heirs have an obligation to turn the property over to the instituted heir when the term arrives).

What is a mode?o You have to do something alongside the disposition.

What if the heir fails or refuses to perform the act required?o The beneficiary can ask for the performance of the obligation.o The legal heirs can ask for the forfeiture of the disposition.

How must a mode be stated?o It must be a clear command, not just a request.

When is a caucion muciana needed?o 1. In a potestative suspensive condition (879)

It is under the sole control of the heir (ex. I give X my house and lot, as long as he doesn’t use it as a drug den. In order to guarantee that the legal heirs, who will then be entitled to the property upon violation of the condition, then X has to put up a bond – the caucion muciana).

o 2. Resolutory term, before the term arrives

The legal heirs have the right to enjoin disposition of the property, but they have to put up a caucion muciana

o 3. In case of a mode (882) As security for compliance with the testator’s wishes

Accretion (1015-23)

To which kinds of succession does it apply?o Applies only to testamentary and intestate succession.

Requisites?o 1. Two or more heirs, legatees, devisees, called to the same

inheritance or portion thereof pro indiviso What does “pro indiviso” here mean?

Some commentators say they must have equal shares (like Tolentino), but this is wrong. There’s no requirement of equality, just as long as they have aliquot shares. This means even the shares can be unequal.

There is no accretion is the shares are earmarked.

o 2. One or more must predecease the testator, become incapacitated, or renounce the inheritance.

X gives his BPI account to A, Citibank account to B, PNB to C. C predeceases. Is there accretion?

o No. The shares are earmarked. X gives ½ of his estate to A, 1/3 to B, 1/6 to C. C predeceases. Is

there accretion?o Yes, because they got aliquot shares. A and B receive C’s

shares according to the proportion they received their shares. In testamentary disposition, what wins out, accretion or

substitution?o Substitution

In intestate disposition, what wins out, accretion or representation?

o Representation, when proper

Revocation of wills (828-834)

There is no such thing as an irrevocable will. It only becomes irrevocable when the testator dies.

What are the three ways of revoking a will, whether total or partial?o 1. By operation of law

Legal separation (offending party is instituted as a beneficiary in a will)

Preterition Where the testator disposes property that is given as

legacy or devise in a will (the legacy/devise is revoked)

o 2. Subsequent will/codicil 1. The will must comply with the requirements of wills 2. Testamentary capacity 3. Either an express revocatory clause or

incompatibility in the dispositions 4. The will must be admitted to probate

o 3. Physical destruction Either by the testator personally or in the case of

attested wills, it can be done by his agent acting under his express direction and in his presence

Molo: There must be both a) corpus (actual destruction), and b) animus (intent)

What if the revocation was unauthorized?o If it is an attested will, it can be proved, if there are people

available who can attest to the contents of the willo If it is a holographic will, too bad if no copies survive. There’s

no way of probating it.

Republication and revival

835 and 836 are inconsistent with each other. Republication/revival is giving efficacy to a will which somehow lost its

efficacy?o Ex. it has been revoked, and now you want to revive it.

If it is defective as to form?o You have to reproduce it in the form of a valid will or codicil.o You cannot revive it by reference.

What if it is inoperative by some other reason other than form?o You can merely revive it by reference.

Executors and administrators (1058-1060)

What if the decedent dies with a will? With no will?o It has to be probated, and if the will has appointed someone to

take care of the estate, then he becomes the executor.o If there is none appointed or no will, then the court appoints an

administrator.

Probate

Two aspects of validity of a will?o Formal (Extrinsic validity)

including capacity of witnesseso Substantive (intrinsic validity)

Ex. impairment of legitimes, preterition, capacity of heirs, legality or possibility of conditions

What is probate?o Mandatory proceeding to determine only the formal validity of

the willo There is no substitute for probate.o Guevarra v. Guevarra, Seangio v. Reyes, Heirs of Lasam:

All lay down the rule that probate is mandatory. Probate is determinative or conclusive of the validity and due execution

of the will. How does it become final?

o Just like any decision of court.o Once it becomes final, it becomes res judicata – it becomes

unassailable as to matters of form of the will.o Even if the decision is wrong.

What cannot be assailed after finality of probate decree?o 1. Testamentary capacityo 2. That he acted freelyo 3. Followed all the requirements of the will, as to witnesses,

etc.o 4. It is genuine and not forged

For probate of holographic wills, what must one remember?o 1. You have to present the will itself (Gan v. Yap)

Except there is a photocopy that survives (Rodella v. Aranza)

o 2. If the holographic will is contested as probate, three witnesses who can identify the will and attest to its validity must be presented.

Is this mandatory? The leading case of Azaola says that it is

only directory Godoy: Says that it is mandatory, although it

is criticized When is it deemed contested?

If it is challenged as a forgery. If it is admitted as genuine but admitted on other grounds such as mistake, fraud, or duress, it is not a contest under 811 and you do not need three witnesses.

Conflicts rules

Substantive validity?o Time – law as of time of deatho Place – law of citizenship of decedent

Formal validity?o There are always five choices:o 1. Law of citizenshipo 2. Philippine lawo 3. Law of residenceo 4. Law of place of executiono 5. Law of domicile

INTESTATE SUCCESSION

In general

What is intestate succession?o Takes place by operation of law in default of a valid will

Look at the instances in 960 where total or partial intestacy occur. What are the principles of intestacy?

o Exclusion and concurrence, just like compulsory succession

What is the rule of relationship?o The intestate heir must be related to the decedento Jus familiae (ascendant/descendant)o Jus sanguinis (collaterals up to fifth degree)o Jus xxx (husband and wife)o Jus imperii (decedent and State)

Just familiae and sanguinis requires blood relationship. What is the exception?

o Legally adopted children and legally adoptive parent What are the limits?

o Going down, there is no limito Going up, there is no limito Collateral line, the limit is up to the fifth degree

How do you count degrees?o For direct line, count degreeso For collaterals, count up to the nearest ancestor

2nd – brothers, sisters 3rd – nephews, nieces, uncles, aunts And so on

Rule of preference of lines?o Direct excludes collateralso As a general rule, descending excludes ascending

Except: legitimate ascendants not excluded by illegitimate descendants

o Is there representation in the direct line? Yes, only in the descending

o Collateral – nearer excludes more remoteo Is there representation if the collateral line?

Nephews and nieces exclude predeceased or unworthy brothers/sisters of decedent

What is the nature of the spouse?o Concurs with both direct and collateral (up to third degree)

What is the rule of proximity of degree?o Nearer exclude the more remoteo What is the exception?

Representation (see above – direct descending and nephews/nieces only for collateral)

What is rule of equality of relatives of the same degree?o Relatives of equal degree inherit equallyo Exceptions?

1. Preference of lines ex. legitimate direct descendant of 1 degree

excludes legitimate direct ascendant of 1 degree

2. In collateral relationships, full blood and half-blood distinction

Siblings Nephews and nieces

3. Representation See the combinations in the book. Can the adopted succeed to his biological parents?

o This is the same problem as in compulsory succession so see the discussion above.

Combinations 2 and 4 in the book are dangerous, so take note that here (children and illegitimate children) – each legitimate child gets double what the illegitimate children will get. What is the usual pitfall?

o If you observe the 2:1 ratio intestacy, remember that you still have the legitimes. You might end up impairing the legitime of the legitimate children, which cannot be impaired. The illegitimate children can suffer impairment if there are a lot of them, but never the legitimate children.

o This problem doesn’t apply in any other instance apart from these two cases.

What is the successional bar?o Art. 992. An illegitimate child has no right to inherit ab intestato

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.

o Manuel v. Ferrer: Article 1006 [?] applies as an exception if both are … [something like if both are illegitimate. I spaced out]

Situations to take note of:o In case of the concurrence of the SS and 1 LC, the SS will get

½, and the LC gets ½.

o SS, brothers, sisters, nephews, nieces – SS gets ½, brothers sisters nephews nieces get ½.

According to the rules of division.o Nephews and nieces concurring with aunts/uncles of the

decedent – nephews and nieces exclude the aunts/uncles even if they are in the same degree.

What is the difference in rules for brothers/sisters in testate and intestate succession?

o TESTACY: Difference in the rule of brothers and sisters – if they are instituted indiscriminately, they receive equal shares whether full or half blood.

o INTESTACY: Take note of the 2:1 ratio [for full and half blood] and the successional bar.

Is partial intestacy possible?o Yes, there is a will but it doesn’t dispose of the entire free

portion. Give an example of the difference between total and partial

intestacy.o Full intestacy:

Legitimes – ½ to LC, ¼ to SS Thus, ½ to LC, ½ to SS (entire ¼ free portion went to

the SS)o Partial intestacy: Ex. I gave 1/8 of my estate to Ateneo.

Note that the legitimes are ½ to LC, ¼ to SS. ½ to legitimate children, 1/8 to Ateneo, 3/8 to spouse Note: the entire remaining free portion of 1/8 went to

the SS.

Acceptance and repudiation of the inheritance (1041-57)

Acceptance and repudiation are always free acts. A person may always accept or reject, whether compulsory, testatamentary, intestate.

Exception: accion paulianao If there are creditors and the decedent does not have enough

property to pay the creditors, the creditors can compel the heir to accept to the extent of the credit

What is the difference in form?o Laxer rules in acceptance, and stricter rules in renouncement,

because it is prejudicial

There is need for judicial approval for renouncement of incapacitated person. For acceptance, no need.

o Acceptance – there can be express acceptance in writing, oral, or there can be tacit acceptance (by doing nothing).

o Renouncement – you have to do it in writing or by judicial approval.

Partition

What is the effect upon death of the decedent?o The immediate effect of death is the vesting of successional

rights. But at this point, nobody knows what part of the estate goes to whom.

o The heirs co-own the mass of properties. You have to collate:

o 1. Inventory What results are his gross assets

o 2. Deduct debts This is where the Santibanez and Hemady doctrines

come in. The estate, after all pays money debts, prior to the heirs receiving their shares.

What results: available assetso 3. Add the value of donations inter vivos

Net hereditary estate results. What if the recipients of the donations are the

compulsory heirs? You impute against their legitimes what they

have received as donations inter vivos. What if the recipients of the donations are

strangers? You impute it against the free portion.

What if the donation to the compulsory heir exceeds his legitime?

The excess is taken out of the free portion What if the free portion can accommodate all

those donations? You take it all out from there

Does collation mean you have to physically obtain the assets?o No. Collating means a purely mathematical computation.

If he died with a will and the free portion cannot accommodate all the dispositions?

o Reduce testamentary dispositionso First to be reduced are the non preferred testamentary

dispositions After reducing them to zero, what if the legitimes are still

impaired?o Reduce the donations to strangers or donations to compulsory

heirs considered strangerso How do you reduce?

NOT pro rata but in reverse order. The latest donation gets reduced first.

Afterwards, the heirs can agree on a partition or go to settlement proceedings. Partition here is the physical division of the estate.

OBLIGATIONS AND CONTRACTS

Trends in Obligations and Contracts:

1. Obligations have been progressively spiritualizedo There is very little requirement as to form. Upon meeting of

the minds, in general, there is a K. 2. The principle of autonomy of will, which is still the general rule in K

law, has been restricted.o There are prohibited obligations from being entered intoo Art. 1306 – Contracting parties may establish clauses and

terms as they may deem convenient Provided they are not contrary to law, morals, public

order, good customs, or public policy There are five categories of restrictions. They restrict

freedom but promote the greater good. Ex. labor contract with consideration less than the

minimum wage. Ex. Those that violate environmental considerations,

social justice, gender issues, etc. 3. Mitigation of the principle that the debtor must answer with all his

propertyo Before: you enter into a K and the creditor can pursue all your

properties to exact fulfillment of the obligationo Now: In the interest of social justice, there are many things that

the creditor cannot levy upon, although the principle is still good – the creditor can pursue the property of the debtor to exact fulfillment of the obligation

o In the Rules of Court, there is a list of properties exempt from attachment, for instance:

1. The Family Home 2. What you receive from support Etc.

4. Weakening of the principle that liability results from responsibilityo In general, under the law, you are only liable if you are

responsible. Ex. if you are guilty of driving recklessly.o Ex. employer can be responsible for employee’s wages if not

paid 5. Unity in modern legislation

o This is especially important in global commerceo Ex. Bills of Lading, Trust Receipts, Intellectual Property, etc.

Essential requisites of obligations

What are the requisites of obligations?o Four generally accepted requisites :o 1. Active subject

A.K.A. Creditor (to give) or obligee (to do) Has right to demand that the obligation be performed

o 2. Passive subject A.K.A. Debtor or obligor Has to perform the obligation (reciprocal obligations)

Note: In a sale of a thing, both parties are debtors and creditors of each other, with correlative obligations (as to the thing; and as to the money)

o 3. Objecto 4. Vinculum juris

For both the active and passive subject, what is required?o They must be determined or determinable.

What are the types of determined/determinable subjects?o 1. Obligations where subjects are completely and absolutely

determined at the birth of the obligation Most common type

o 2. One of the parties is determined, but one is determinable with a previously-established criterion

Ex. Negotiable instrument: “I promise to pay X or order the amount of P5000, on November 15, 2011.” One of the parties, i.e., me, is determined. The other is determinable, because X can negotiate it. The instrument lays down the criterion.

o 3. Subject/s is/are determined in accordance with their relation to a thing. (Real contracts)

The subject/s may change at the thing passes from one person to another.

Ex. X borrowed 3M from Y, and placed his house and lot as security. There is a K of loan and a K of

mortgage, which is registered. X sold his house and lot to Z, who registered the property in her name. The mortgage in favor of Y is still annotated. X doesn’t pay by the due date. Y sought to foreclose the mortgage, and Z cannot deny the mortgage, because Z is the mortgagor now.

What is the object of the obligation?o It’s the prestation. It consists of conduct or an activity to be

performed by the debtor or obligor.o It’s not the physical thing to be delivered in an obligation to

give. That is merely the object of the prestation.o Ex. Y has to deliver a car to X on Feb 15, 2011. The object of

the obligation of sale is the act of delivering to X the ownership the car (tradition). The car is the object of the prestation.

o This distinction is, not, however always observed even by the NCC.

o What are the requisites for the prestation? 1. Licit

Cannot enter into contract of sale for shabu, because the object of the prestation is illicit.

2. Possible Cannot deliver Mount Apo

3. Determinate or determinable Cannot enter into a K with no defined

prestation 4. With pecuniary value

What is the vinculum juris?o The compulsive element; the obligatory element in an

obligation. It makes an obligation an obligation.o This is why an obligation dependent solely on one’s will is void.o Ex. X tells Y, “I will sell my car to you when I feel like it.” Here,

there is no obligatory force. Yu v. Asuncion: Enumerated requisites of an obligation.

o 1. Vinculum juris, “the efficient cause of the obligation”o 2. The object (prestation/conduct to be observed)o 3. Subject persons, the active and passive subject

Combined #s 1 and 2 into one. What is the fifth element, according to Castan?

o The causa. It is the “why” of the contract.o Ex. Why is Y bound to deliver the car to X? Because X will

deliver P400000 to Y. Why is X bound to give P400000 to X? Because Y will deliver the car to X.

o What is the causa for a gratuitous contract? Liberality.

o What is the causa for a quasi-delict? Causing an injury to the other.

What is the sixth requisite?o The form. But it does not refer to a specific form, like putting it

in writing. It refers to the outward or external manifestation of the obligation.

Sources of obligations

Art 1157 – Obligations arise from:o 1. Lawo 2. Contractso 3. Quasi-contractso 4. Crimeso 5. Quasi-delicts

Arts. 1158-62 regulate these five sources Is this list exclusive?

o Sagrada Orden v. NACOCO: The Japanese during the war seized the Sagrada Orden’s property during the war. Upon liberation, the US seized enemy property, which included Sagrada’s property. The US entered into a custodianship agreement with NACOCO. Sagrada Orden wanted to collect rentals from NACOCO. Issue: is there an obligation to pay rentals to Sagrada? HELD: No obligation to pay rentals. The court, to arrive at this answer, the court looked at the five sources of obligations – there was no contract, quasi-delict, no provision of law that requires payment of rental, crime, or quasi-contract. The implication the court forwarded is that this is a closed list.

But is it, really? Or should it, really?o Many commentators believe it is not exclusive.

What are the other obligations?

o Public offer is a sixth source of obligation, for instance (auslobung in the German code – or the unaccepted offer). A person who by public notice advertises an award in exchange for a particular result is bound to grant this award.

Ex. Proctor and Gamble announces on TV: “For 30 wrappers of Tide, you get a glass imported from Switzerland. Offer good until Feb 28, 2011 only!” X saw this advertisement, and on Feb 27, 2011, presents 30 wrappers to the P&G office. Issue: is there an obligation here? Held: yes. There is a public offer here.

Ex. X left his important papers inside a cab. X advertised that whoever returns his papers will get a P20000 reward. – There is a public offer here.

Some commentators say there are only two sources: law and contract. Some say: laws and acts of persons (whether voluntary or involuntary).

What is the nature of a contract as a source of obligation?o What the contracting parties establish has the force of law

between them, and must be complied with in GF. They are free to enter into any contract, provided the stipulations do not violate Art. 1306. In general, there is no specific form needed.

o How must compliance be done? 1. It must be complied with according to its terms (ius

civile – pacta sunt servanda) 2. And according to good faith (ius gentium – bona

fide). [ABSENT ONE SESSION] Got into a car accident with a bus. Who do you sue? What are

your options?o 1. Bus drivero 2. Bus companyo 3. Sue both – because they’re joint tortfeasors, and thus

solidarily liable Do you have to prove negligence when you sue under quasi-

delict?o Yes, you have to prove negligence of the bus driver. It is not

presumed. Do you also have to prove the negligence of the bus company?

o Yes, in the selection and supervision of the bus driver. (Culpa in eligiendo, culpa in vigilando)

o This is a rebuttable/disputable presumption. As opposed to conclusive and quasi-conclusive

presumptions In a situation where damage or injury is caused to a party, and

there is a contract between him and the person who caused the damage, there is no question he can sue under contract. But can he also sue under quasi-delict?

o There is an old line of SC decisions in this country which says that you cannot sue under quasi-delict if there is a contract. There is some basis for this, because Art. 2176 says that the act or omission must occur “when there is no pre-existing contractual relation between the parties.”

o There is, however, the theory of concentric circles (the smaller circle of contract is always within the bigger circle of quasi-delict). So if you sue under quasi-delict, you are disregarding the contract between the parties. This is valid.

o You can sue under quasi-delict if it is the tort breaches the contract. If an act that constitutes breach of contract would in itself constitute the source of a quasi-delictual liability had there been no contract, then there is breach of contract through tort.

o So you can choose to sue under quasi-delict or contract . Theory of vicarious liability:

o If you sue under quasi-delict and you choose to sue the company and not the employee, you are really suing under Art. 2180.

o This is actually a wrong term because vicarious means you are answering for the liability of someone else.

o But the theory under 2180 is that the company/employer itself is negligent as well.