MOCK BAR 2009

CIVIL LAW
01 February 2009 8 A.M. - 12 Noon


INSTRUCTIONS

This questionnaire consists of twenty (20) numbers contained in SEVEN (7) pages. Read each question very carefully. Answer legibly, clearly, and concisely. Start each number on a separate page; an answer to a sub-question under the same number may be written continuously on the same page and immediately succeeding pages until completed. Each question is worth 5%. A mere "Yes" or "No" answer without any corresponding discussion will not be given any credit.

HAND IN YOUR NOTEBOOK WITH THIS QUESTIONNAIRE

GOOD LUCK!!!

(Sgd.) EUSTOLIA J. MATA
Chairperson
2009 Mock Bar Examination Committee

PLEASE CHECK THE NUMBER OF PAGES IN THIS SET
WARNING: NOT FOR SALE OR UNAUTHORIZED USE

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1. X and Y are married. X, the man, is working in Saudi Arabia and has been there for five (5) years. He sends his family letters and support regularly. Can Y, the wife, go to court and file a summary petition for declaration of his presumptive death and subsequently get married?

A No, because it cannot be said that X has been absent because Y has always known the whereabouts of X. For this reason, the marriage subsequently contracted is void.

2. A parcel of land was acquired by Miguel and Erlinda who got married while Miguel’s marriage with Carlina was still subsisting. The question was what law governs the acquisition of such property. Can Erlinda be considered a co-owner since there is no showing of her contribution to the acquisition of the same considering that was only 20 years old then? Why?

A No, the property relation cannot be considered governed by the law on co-ownership since Erlinda failed to prove that she contributed money to the purchase price of the Riceland. It should therefore belong to the conjugal partnership of Miquel and Carlina. Under Art. 148, Family Code, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. Actual contribution is required by Art. 148 F.C. in contrast to Art. 147, F.C. which states that efforts in the care and maintenance of the family and household are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares. (Agapay vs. Palang, G.R No. 116668, July 28, 1997, 85 SCAD 145).

3. Boyet and Baby, both Filipino citizens, met in California, U.S.A. where they were working. They fell in love with each other and got married. What law shall govern their property relationship?

A Philippine Laws shall govern their property relationship, unless there is an agreement to the contrary. Article 80 of the Family Code states that in the absence of a contrary stipulation in the marriage settlement, the property laws, regardless of the place of the celebration of the marriage and their residence.

4. May mandamus lie to compel the Local Civil Registrar to register a certificate of live birth of an illegitimate child using the alleged father’s surname where the latter admitted paternity? Explain.

A No. Art. 176 of the Family Code of the Philippines provides that “illegitimate children shall use the surname and shall be the parental authority of their mother, and shall be entitled to support in conformity with this Code.” This is the rule regardless of whatever or not the father admits paternity. Consequently, the Local Civil Registrar correctly refused to register the certificate of live birth of an illegitimate child using the surname of the alleged father, even with the latter’s consent. Of course, the putative father, though a much married man, may legally adopt his own illegitimate child. (Art. 185, F.C.). In case of adoption, the child shall be considered a legitimate child of the adopter, entitled to use his surname.

The Family Code had effectively repealed the provisions of Article 366 of the Civil Code of the Philippines giving natural child acknowledged by both parents the right to use the surname of the father. The Family Code has limited the classification of children to legitimate and illegitimate (Art. 163, F.C.), thereby eliminating the category of acknowledged natural children and natural children by legal fiction. (Marissa Mossesgeld vs. CA, et. al., G.R. No. 132524, December 29, 1998, 101 SCAD 928).

With the amendment introduced by R.A. No. 9255 (Sec. Art. 176), the answer should now be Yes.

5. Leouel Santos, Jr. was born of the spouses Leouel Santos, Sr., and Julia Bedia-Santos. From the time of his birth, he was under the care of his maternal grandparents. His mother left for the USA to work as a nurse, and his father alleged in a Petition for the Care, Custody and Control of the Minor that he was not aware of her whereabouts. The RTC awarded the custody of the child to his maternal grandparents. The CA affirmed it. The maternal grandparents contended that they are in a better position to take care of the child for they have amply demonstrated their love and affection for the boy since his infancy; hence, they are in the best position to promote the child’s welfare. Who should be awarded the custody of the child? Why?

A The father should be given the custody of the child. The law vests on the father and mother joint authority over the persons of their common children. (Art. 211, F.C.). In the absence or death of either parent, the parent present shall continue exercising parental authority. (Art. 212, F.C.). Only in case of the parent’s death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent. (Art. 214, F.C.; Santos, Sr. vs. CA, et. al., G.R. No. 113054, March 16, 1995, 59 SCAD 672).

6. Petitioner, a Filipino, was a common-law spouse of a Chinese named Go Eng, with whom she had seven children, two of whom were erroneously registered as legitimate and Chinese citizens in their birth certificates. All the other five children had birth records correctly reflecting the fact that their parents were both single; that they were illegitimate; and that they were Filipino citizens. The Petition was published in a newspaper of general circulation as required by Rule 108 of the Rules of Court. Notice thereof was duly served on the Solicitor General, the Local Civil Registrar, and Go Eng. The order setting the case for hearing also directed the civil registrar and the other respondents or any person claiming any interest to file their opposition and cross-examined the petitioner during the trial.

This petition sought to correct the civil status and citizenship of petitioner as appearing in her children’s birth certificates, as well as the civil status of said children. If your were the judge, how would you decide? Explain.

A I would grant the petition. This case is similar to the case of Republic vs. Valencia, 141 SCRA 462, where the Supreme Court said that it is undoubtedly true that if the subject matter of a petition is not for the correction of clerical errors of a harmless and innocuous nature, but one involving nationality or citizenship, which is indisputably substantial as well as controversial, affirmative relief cannot be granted in a proceeding summary in nature. However, it is also true that a right in law may be enforced and a wrong may be remedied as long as the appropriate remedy is used. This Court adheres to the principal that even substantial errors in a civil registry may be corrected and true facts established, provided the parties aggrieved by the error avail themselves of the appropriate adversary proceeding. x x x To follow (the Solicitor General’s) argument that Rule 108 has been followed, a petition for correction can no longer be described as “summary.” There can be no doubt, said the Court, that when an opposition to the petition is filed either by Civil Registrar or any person having or claiming any interest in the entries sought to be cancelled and/or corrected, and the opposition is actively prosecuted, the proceedings thereon become adversary proceedings. After noting the well-documented proof which was never contradicted by the Republic, the High Court observed that it would be a denial of substantive justice if two children proven by the facts to be Philippine citizens, and whose five sisters and brother born of the same mother and father enjoy all the rights of citizens, are denied the same rights on the simple argument that the “correct procedure” not specified or even intimidated has not been followed.

7. X is the owner of a parcel of land which he converted into a subdivision with egress and ingress to and from the highway by means of its own road lots. Y is the owner of two parcels of land which he purchased from its previous developer with a subdivision plan approved by the HSRC. This plan was approved because it indicated an access road to the public highway through the lot of Z, not X, but the supposed right of way was only on paper as no actual work was done on Z’s lot. Instead of constructing the right of way on Z’s land, Y approached X for the right of way who consented verbally while negotiations were going on. X imposed certain conditions after Y used it for one month upon X’s tolerance which were rejected by Y, who went to court to compel him to use the right of way. X approved contending that he merely voluntarily agreed that Y would use it, hence, he did not acquire the right of way, and even if he acquired it, he had another access road. Is Y correct? Why?

A No, because the use of X’s lot for one month was by mere tolerance pending negotiations of the terms and conditions of the right of way. Although such use was in anticipation of a voluntary easement of right of way, no such contract was perfected between X and Y by reason of the failure to agree on the terms and conditions, hence; Y cannot claim entitlement to the right of way. Furthermore, he has another access road as shown by the plan. If his property was isolated, it was due to his own fault. (Floro vs. Llenado, et. al., G.R. No. 75723, June 2, 1995, 61 SCAD 665).

8. Maria, to spite her husband Jorge, whom she suspected of having an affair with another woman, executed a will, unknown to him, bequeathing all the properties she inherited from her parents to her sister Miguela. Upon her death, the will was presented for probate. Jorge opposed the probate on the ground that the will was executed by his wife without his knowledge, much less consent, and that it deprived him of his legitime. After all, he had given her no cause for disinheritance, added Jorge in his opposition.

How will you rule on Jorge’s opposition to the probate of Maria’s will, if you were the Judge?

A I would rule that Jorge is entitled to receive his legitimate from the estate of his wife. He was not disinherited in the will assuming he gave ground for disinheritance; hence, he is still entitled to his legitimate. Jorge, however, cannot receive anything from the free portion. He cannot claim preterition, the institution of the sister was valid; and the only right of Jorge is to claim his legitimate.

9. There was a suit against a corporation and its board of directors. A compromise agreement was signed by a lawyer in behalf of the corporation and the defendants-directors, without their (defendants-directors’) authority. On the basis of the compromise agreement, a judgment was rendered. The judgment was partially complied with, but upon default in the payment of the balance, a writ of execution was sought from and granted by the trial court. It was only then that the lawyer informed the court that he committed an oversight in having filed the compromise agreement in behalf of the defendants-directors when it was only the defendant corporation which hired his services.

Suppose the action was filed after ten years, has the action prescribed? Why?

A Not yet. In Paluwagan ng Bayan Savings Bank vs. King, G.R. No. 78252, April 12, 1989, it was said that the compromise agreement signed by the lawyer in behalf of the defendants without their authority is null and void insofar as they are concerned. By the same token, the compromise judgment is also null and void as to the defendants. The ruling of the lower court that the motion to set aside the judgment and the petition for relief from judgment were filed beyond the reglementary period is untenable. An action to declare the nullity of a void judgment does not prescribe. (See also Art. 1410, NCC).

10. X is indebted to Y in the amount of Php100,000.00 payable on or before December 31, 1992. On December 10, 1992, ha gave an extension to X until January 30, 1993. Another extension was granted in February 1993 and two extensions more were given up to March 1993. When X asked for another extension, Y refused and asked you whether he can still exercise his reserved right of rescission. Advise Y.

A Y can no longer the right of rescission because he waived it when he granted a series of extensions for X to pay. (Pilipinas Bank vs. IAC, June 30, 1997).

11. After Ong, in Dino vs. Valencia, L-43886, July 19, 1989, registered an adverse claim on the title of Dino, he executed an Affidavit and a Memorandum of Quitclaim waiving all of his rights over the land. In consideration of the said quitclaim, Dino issued several checks; but four of them bounced. Sued for breach of contract, Dino put up the defense of novation claiming that the original agreement had been altered after the issuance of said checks since Ong agreed to the request that the checks be not deposited immediately. When sued, she interposed the defense that the original agreement of the parties had already been novated and disregarded after the issuance of the checks and after the execution of the Affidavit and Memorandum of Quitclaim.

Is the defense correct? Why?

A No. It will be noted that the original contract (Annex “A”) was not actually altered or changed. The defense, as a matter of fact, and for all intents and purposes, had issued checks in payment of her obligation as prestated by the contract but asserted that the same were issued only to guarantee but not as a payment in itself, but it is no denying the fact that one of the five checks were cashed, thus making the balance of only P32,000.00, that is without mention the liquidated damage of P20,000.00. The ambivalent attitude of the defendant could only mean or should be construed as a mere pretense to avoid an immediate demand for the payment of her obligation.

In order that an obligation may be extinguished by another which substitutes the same, it is imperative that it be so declared in unequivocal terms, or that the old and new obligation be on every point incompatible with each other. (Art. 1292, New Civil Code).

In the present case, the contract referred to did not expressly extinguish the obligation existing in said affidavit and memorandum of quitclaim. On the contrary, it expressly recognized the obligation between the parties and expressly provided a method by which the same shall be extinguished, which method was expressly provided to the aforementioned contract by means of periodical payments.

12. X is a franchise holder along THE ROUTE FROM Manila to Biñan, Laguna. Z, a friend, wants to engage in the transportation business but he has no franchise; hence, he sought the assistance of X who told him that he can accommodate his buses for a fee. They then entered into a contract whereby Z made it appear that he conveyed the buses to X just to have the same registered and covered by the franchise. One year later, Y sold his franchise to Z. Thereafter, Z sought the reconveyance of the buses to him from X. X, however, refused, hence, this action for specific performance. Will the action prosper? Why?

A No, because they are in pari delicto. In Teja Marketing vs. CA, March 9, 1987, it was said that the kabit system has been the source of corruption in the government agency (LTO or LTFRB); thus, the court would leave the parties where they are.

13. The agreement between Luna Sosa and Popong Bernardo, a sales agent of Toyota Shaw, Inc., shows that the former shall submit all the necessary documents; that a down payment shall be made by him in the amount of P100,000.00 on June 15, 1989, and that the car shall be picked up on June 17, 1989. It was signed by Bernardo but not by Sosa. There was no mention of how much the purchase price was and how the balance would be paid. Was there a perfected contract? Why?

A None, because there was no obligation of Toyota Shaw, Inc. to transfer ownership of a determinate thing, and the correlative obligation to pay a price certain. The agreement made no specific reference to a sale of a vehicle. If it was intended to be a contract of sale, it could only refer to a sale on installment basis; but nothing was mentioned about the full price and the manner the installments were to be paid. A definite agreement on the manner of payment of the price is essential element in the formation of a contract of sale. (Velasco vs. CA, 51 SCRA, 439; Navarro vs. Sugar Producers Cooperative Marketing Assn., 1 SCRA 1180). This is so because the agreement as to the manner of payment goes into the price such that a disagreement on the manner of payment is tantamount to a failure to agree on the price. Definiteness as to the price is an essential element of a binding agreement to sell personal property. (Toyota Shaw, Inc. vs. CA, et. al., G.R. No. 116650, May 23, 1995, 61 SCAD 310).

14. A is the owner of a lot on which he constructed a building with the total cost of P10,000,000.00. Of that amount, B B contributed 5,000,000.00 provided that the building as a whole would be leased to him (B) for a period of ten years from January 1, 1985 to December 31, 1995 at a rental of P100,000.00 a year. To such condition, A agreed. On December 20, 1990, the building was totally burned. Soon thereafter, A’s workers cleared the debris and started the construction of a new building. B then served notice upon A that he would occupy the building being constructed upon completion for the unexpired portion of the lease term, explaining that he had spent partly for the construction of the building that was burned. A, rejected B’s demand.

Was A correct in rejecting B’s demand?

A Yes, because the lease was extinguished with the total burning of the building. (Art. 1655, NCC).

15. X borrowed from Y money to gamble. He lost. Y, the creditor, demand from X the payment of the obligation when it became due and demandable, but X refused to pay contending that it was the result of gambling. Is his contention valid? Why?

A No. It was not the result of gambling. The fact that the money was loaned to him for the purpose of gambling is not sufficient to defeat the claim of Y since only such money lost at gambling cannot be recovered (but not the money loaned to be used for gambling). (Vasquez vs. Florence, October 28, 1985; see Ban vs. IAC, December 17, 1986).

16. Cabanatuan City Colleges obtained a loan from Bancom 16Development Corporation secured by a mortgage over two parcels of land within its school site. In the meantime and during the existence of the mortgage, it leased 1,000 square meters to another, who eventually constructed a house on said land. This was made known to Bancom. The debtor failed to pay its obligation, hence the foreclosure of the mortgage. Bencom was the highest bidder in the public auction. Certificate of sale was issued. There was failure to redeem, hence, Bancom consolidated its title, then, it moved for the issuance of a writ of possession which included the house erected by the lessee. Is the action proper? Why?

A No, while the law (Art. 2127, NCC) provides that the mortgage extends to the natural accessions, or to the improvements, among others, yet the law extends the effects of real estate mortgage only to accessions and accessories found on hypothecated property when the secured obligation becomes due. The law is predicated on an assumption that that the ownership of such accessions and accessories also belongs to the mortgagor as the owner of the principal. (See Art. 440, NCC). The provision has thus been seen by the Court, in a long line of cases beginning in 1909 with Bischoff vs. Pomar, 12 Phil. 690; Cea vs. Villanueva, 18 Phil. 538; Cu Unjieng vs. Mabalacat Sugar Co., 58 Phil. 439; Berkenkotter vs. Cu Unjieng, 61 Phil. 663, to mean that all improvements subsequently introduced or owned by the mortgagor on the encumbered property are deemed to form part of the mortgage. That the improvements are to be considered so incorporated only if so owned by the mortgagor is a rule that can hardly be debated since a contract of security, whether real or personal, needs as an indispensable element thereof the ownership by the pledgor or mortgagor of the property pledged or mortgaged. (Art. 2085, NCC). The rationale should be clear enough, in the event of default on the secured obligation, the foreclosure sale of the property would naturally be the next step that can be expectedly follow. A sale would result in the transmission of title to the buyer which is feasible only if the seller can be in a position to convey ownership of the thing sold. (Article 1458, Civil Code). Foreclosure would be ineffective unless the mortgagor has title to the property to be foreclosed. For the law only allows the possession of a mortgaged property to be awarded to the purchaser in extrajudicial foreclosures if there is no third party actually holding the property adversely to the judgment debtor. (Castro, et. al. vs. CA, et. al., G.R. No. 97401, December 6, 1995, 66 SCAD 264).

17. May the owner of the truck involved in an accident be held subsidiarily liable for the damages awarded to the offended parties in the criminal action against the truck driver despite the filing of a separate civil action by the offended parties against the employer of the truck driver? Why?

A No, because the law prohibits recovery of damages by the injured party twice. In negligence cases, the aggrieved party has the choice between: (1) an action to enforce civil liability arising from crime under Article 100 of the Revised Penal Code; and (2) a separate action for quasi delict under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party cannot avail himself of any other remedy because he may not recover damages twice for the same negligent act or commission of the accused. This is the rule against double recovery. (Rafael Reyes Trucking Corp. vs. People, G.R. No. 129029, April 3, 2000).

18. XYZ Corporation acquired by purchased a parcel of land from A who has been in possession of the same since 1900. The acquisition was made in 1988. Can the corporation file an original application for land registration?

A Yes, because the land is no longer a part of the alienable lands of the public domain. The possession by A since 1900 or over 30 years converted the land ipso jure into a private property, hence, divesting the land of its character as alienable land of the public domain. (Dir. Of Lands vs. IAC, December 29, 1986; Magistrado vs. Esplana, G.R. No. 54191, May 8, 1990; Republic vs. CA, G.R. No. 108998, August 24, 1994, 54 SCAD 612).

19. The contract entered into by and between the parties in Engineering and Machinery Corp. vs. CA, et al., 67 SCAD 113, G.R. No. 52267, January 24, 1996, was a situation where the petitioner undertook, to fabricate, furnish, and install the air-conditioning system in the respondent’s building for P210,000.00.

Is the contract one of sale or a contract for a piece of work?

A It is one of a piece of work because it is not petitioner’s line of business to manufacture air-conditioning systems to be sold “off-the-shelf.” Its business and particular field of expertise is the fabrication and installation of such systems as ordered by customers and in accordance with particular plans and specifications provided by customers. Naturally, the price or compensation for the system manufactured and installed will depend greatly on the particular plans and specifications agreed upon by the customers.

“By the contract for piece of work the contractor binds himself to execute a piece of work for the employer, in consideration of a certain price or compensation. The contractor may either employ only labor or skill, or also furnish the material.” Art. 1713, NCC.

A contract for a piece of work, labor, and materials may be distinguished from a contract of sale by the inquiry as to whether the thing transferred is not one in existence and which would never have existed but for the order of the person desiring it. In such case, the contract is one for a piece of work, not a sale. On the other hand, if the thing subject of sale to some other person even if the order had not been given, then the contract is one of sale. (Com. Of Internal Revenue vs. Engineering Equipment and Supply Corp. vs. CA, et al., G.R. No. 52267, January 24, 1996, 67 SCAD 113.

20. X executed a deed of donation in favor of his son Y prior to his death. Such donation is irrevocable in character. After his death, his will was submitted to probate and Y was being required to collate the said donation, but he contends otherwise, stating that since the donation is irrevocable in nature, there is a prohibition against collation. Is Y’s contention tenable? Why?

A No, because there was no express prohibition against collation. Collation shall not take place among compulsory heirs if the donor should have so expressly provided. (art. 1062, NCC). The fact that the donation is irrevocable does not necessarily exempt the subject thereof from collation. Anything less than an express prohibition will not suffice under the clear language of Art. 1062. (Roma vs. CA, July 23, 1987).

END OF THE EXAMINATION

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