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Audiobook Civil Law Property

Property Law Audiobook #10: Easements of Servitudes

TITLE VII
EASEMENTS OF SERVITUDES

CHAPTER 1
EASEMENTS IN GENERAL

SECTION 1
DIFFERENT KINDS OF EASEMENTS

Article 613

An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.

The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.

Article 614

Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong.

Article 615
Easements may be continuous or discontinuous, apparent or nonapparent.

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

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

Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same.

Nonapparent easements are those which show no external indication of their existence.

Article 616

Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, and a negative easement, that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist.

Article 617

Easements are inseparable from the estate to which they actively or passively belong.

Article 618

Easements are indivisible. If the servient estate is divided between two or more persons, the easement is not modified, and each of them must bear it on the part which corresponds to him.

If it is the dominant estate that is divided between two or more persons, each of them may use the easement in its entirety, without changing the place of its use, or making it more burdensome in any other way.

Article 619

Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements.

SECTION 2
MODES OF ACQUIRING EASEMENTS

Article 620

Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

Article 621

In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate;

… and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement.

Article 622

Continuous nonapparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title.

Article 623

The absence of a document or proof showing the origin of an easement which cannot be acquired by prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment.

Article 624

The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed.

This provision shall also apply in case of the division of a thing owned in common by two or more persons.

Article 625

Upon the establishment of an easement, all the rights necessary for its use are considered granted.

Article 626

The owner of the dominant estate cannot use the easement except for the benefit of the immovable originally contemplated. Neither can he exercise the easement in any other manner than that previously established.

SECTION 3
Rights and Obligations of the Owners of the Dominant and Servient Estates

Article 627

The owner of the dominant estate may make, at his own expense, on the servient estate any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome.

For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time and manner so as to cause the least inconvenience to the owner of the servient estate.

Article 628

Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the preceding article, in proportion to the benefits which each may derive from the work. Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others.

If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary.

Article 629

The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.

Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the easement, the same should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works, repairs or improvements thereon, it may be changed at his expense…

… provided he offers another place or manner equally convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a right to the use of the easement.

Article 630

The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement.

SECTION 4
MODES OF EXTINGUISHMENT OF EASEMENTS

Article 631
Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and servient estates;

(2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place;

(3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;

(4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;

(5) By the renunciation of the owner of the dominant estate;

(6) By the redemption agreed upon between the owners of the dominant and servient estates.

Article 632

The form or manner of using the easement may prescribe as the easement itself, and in the same way.

Article 633.

If the dominant estate belongs to several persons in common, the use of the easement by any one of them prevents prescription with respect to the others.

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Audiobook Civil Law Property

Property Law Audiobook #9: Usufruct Part 2

TITLE VI USUFRUCT

CHAPTER 3
OBLIGATIONS OF THE USUFRUCTUARY

Article 583

The usufructuary, before entering upon the enjoyment of the property, is obliged:

(1) To make, after notice to the owner or his legitimate representative, an inventory of all the property, which shall contain an appraisal of the movables and a description of the condition of the immovables;

(2) To give security, binding himself to fulfill the obligations imposed upon him in accordance with this Chapter.

Article 584

The provisions of No. 2 of the preceding article shall not apply to the donor who has reserved the usufruct of the property donated, or to the parents who are usufructuaries of their children’s property, except when the parents contract a second marriage.

Article 585

The usufructuary, whatever may be the title of the usufruct, may be excused from the obligation of making an inventory or of giving security, when no one will be injured thereby.

Article 586

Should the usufructuary fail to give security in the cases in which he is bound to give it, the owner may demand that the immovables be placed under administration, that the movables be sold, that the public bonds, instruments of credit payable to order or to bearer be converted into registered certificates or deposited in a bank or public institution, and that the capital or sums in cash and the proceeds of the sale of the movable property be invested in safe securities.

The interest on the proceeds of the sale of the movables and that on public securities and bonds, and the proceeds of the property placed under administration, shall belong to the usufructuary.

Furthermore, the owner may, if he so prefers, until the usufructuary gives security or is excused from so doing, retain in his possession the property in usufruct as administrator, subject to the obligation to deliver to the usufructuary the net proceeds thereof, after deducting the sums which may be agreed upon or judicially allowed him for such administration.

Article 587

If the usufructuary who has not given security claims, by virtue of a promise under oath, the delivery of the furniture necessary for his use, and that he and his family be allowed to live in a house included in the usufruct, the court may grant this petition, after due consideration of the facts of the case.

The same rule shall be observed with respect to implements, tools and other movable property necessary for an industry or vocation in which he is engaged.

If the owner does not wish that certain articles be sold because of their artistic worth or because they have a sentimental value, he may demand their delivery to him upon his giving security for the payment of the legal interest on their appraised value.

Article 588

After the security has been given by the usufructuary, he shall have a right to all the proceeds and benefits from the day on which, in accordance with the title constituting the usufruct, he should have commenced to receive them.

Article 589
The usufructuary shall take care of the things given in usufruct as a good father of a family. Article 590

A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the things in usufruct may suffer through the fault or negligence of the person who substitutes him.

Article 591

If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity of beasts of prey.

If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation by delivering to the owner the remains which may have been saved from the misfortune.

Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, the usufruct shall continue on the part saved.

Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though constituted on fungible things.

Article 592

The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct. By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing and are indispensable for its preservation.

Should the usufructuary fail to make them after demand by the owner, the latter may make them at the expense of the usufructuary.

Article 593

Extraordinary repairs shall be at the expense of the owner. The usufructuary is obliged to notify the owner when the need for such repairs is urgent.

Article 594

If the owner should make the extraordinary repairs, he shall have a right to demand of the usufructuary the legal interest on the amount expended for the time that the usufruct lasts.

Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make them; but he shall have a right to demand of the owner, at the termination of the usufruct, the increase in value which the immovable may have acquired by reason of the repairs.

Article 595

The owner may construct any works and make any improvements of which the immovable in usufruct is susceptible, or make new plantings thereon if it be rural, provided that such acts do not cause a diminution in the value of the usufruct or prejudice the right of the usufructuary.

Article 596

The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the expense of the usufructuary for all the time that the usufruct lasts.

Article 597

The taxes which, during the usufruct, may be imposed directly on the capital, shall be at the expense of the owner.

If the latter has paid them, the usufructuary shall pay him the proper interest on the sums which may have been paid in that character; and, if the said sums have been advanced by the usufructuary, he shall recover the amount thereof at the termination of the usufruct.

Article 598

If the usufruct be constituted on the whole of a patrimony, and if at the time of its constitution the owner has debts, the provisions of articles 758 and 759 relating to donations shall be applied, both with respect to the maintenance of the usufruct and to the obligation of the usufructuary to pay such debts.

The same rule shall be applied in case the owner is obliged, at the time the usufruct is constituted, to make periodical payments, even if there should be no known capital.

Article 599

The usufructuary may claim any matured credits which form a part of the usufruct if he has given or gives the proper security. If he has been excused from giving security or has not been able to give it, or if that given is not sufficient, he shall need the authorization of the owner, or of the court in default thereof, to collect such credits.

The usufructuary who has given security may use the capital he has collected in any manner he may deem proper. The usufructuary who has not given security shall invest the said capital at interest upon agreement with the owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to preserve the integrity of the capital in usufruct.

Article 600

The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the security of which the mortgage was constituted.

Should the immovable be attached or sold judicially for the payment of the debt, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof.

Article 601

The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so, for damages, as if they had been caused through his own fault.

Article 602

The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the usufructuary.

CHAPTER 4
EXTINGUISHMENT OF USUFRUCT

Article 603

Usufruct is extinguished:

(1) By the death of the usufructuary, unless a contrary intention clearly appears;

(2) By the expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct;

(3) By merger of the usufruct and ownership in the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting the usufruct; (7) By prescription.

Article 604

If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part.

Article 605

Usufruct cannot be constituted in favor of a town, corporation, or association for more than fifty years. If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation or association is dissolved, the usufruct shall be extinguished by reason thereof.

Article 606

A usufruct granted for the time that may elapse before a third person attains a certain age, shall subsist for the number of years specified, even if the third person should die before the period expires, unless such usufruct has been expressly granted only in consideration of the existence of such person.

Article 607

If the usufruct is constituted on immovable property of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and the materials.

The same rule shall be applied if the usufruct is constituted on a building only and the same should be destroyed. But in such a case, if the owner should wish to construct another building, he shall have a right to occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials.

Article 608

If the usufructuary shares with the owner the insurance of the tenement given in usufruct, the former shall, in case of loss, continue in the enjoyment of the new building, should one be constructed, or shall receive the interest on the insurance indemnity if the owner does not wish to rebuild.

Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone, the latter shall receive the full amount of the insurance indemnity in case of loss, saving always the right granted to the usufructuary in the preceding article.

Article 609

Should the thing in usufruct be expropriated for public use, the owner shall be obliged either to replace it with another thing of the same value and of similar conditions, or to pay the usufructuary the legal interest on the amount of the indemnity for the whole period of the usufruct. If the owner chooses the latter alternative, he shall give security for the payment of the interest.

Article 610

A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuse should cause considerable injury to the owner, the latter may demand that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration.

Article 611

A usufruct constituted in favor of several persons living at the time of its constitution shall not be extinguished until the death of the last survivor.

Article 612

Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without prejudice to the right of retention pertaining to the usufructuary or his heirs for taxes and extraordinary expenses which should be reimbursed. After the delivery has been made, the security or mortgage shall be cancelled.

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Audiobook Civil Law Property

Property Law Audiobook #8: Usufruct

TITLE VI USUFRUCT

CHAPTER 1
USUFRUCT IN GENERAL

Article 562

Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.

Article 563

Usufruct is constituted by law, by the will of private persons expressed in acts inter vivos or in a last will and testament, and by prescription.

Article 564

Usufruct may be constituted on the whole or a part of the fruits of the thing, in favor of one more persons, simultaneously or successively, and in every case from or to a certain day, purely or conditionally. It may also be constituted on a right, provided it is not strictly personal or intransmissible.

Article 565

The rights and obligations of the usufructuary shall be those provided in the title constituting the usufruct; in default of such title, or in case it is deficient, the provisions contained in the two following Chapters shall be observed.

CHAPTER 2
RIGHTS OF THE USUFRUCTUARY

Article 566

The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With respect to hidden treasure which may be found on the land or tenement, he shall be considered a stranger.

Article 567

Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary. Those growing at the time the usufruct terminates, belong to the owner.

In the preceding cases, the usufructuary, at the beginning of the usufruct, has no obligation to refund to the owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of the usufruct, from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar expenses incurred by the usufructuary.

The provisions of this article shall not prejudice the rights of third persons, acquired either at the beginning or at the termination of the usufruct.

Article 568

If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should expire before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of the rent that must be paid by the lessee.

Article 569

Civil fruits are deemed to accrue daily, and belong to the usufructuary in proportion to the time the usufruct may last.

Article 570

Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether in money or in fruits, or in the interest on bonds or securities payable to bearer, each payment due shall be considered as the proceeds or fruits of such right.

Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same character.

In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in the preceding article.

Article 571

The usufructuary shall have the right to enjoy any increase which the thing in usufruct may acquire through accession, the servitudes established in its favor, and, in general, all the benefits inherent therein.

Article 572.

The usufructuary may personally enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, evenby a gratuitous title; but all the contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct, saving leases of rural lands, which shall be considered as subsisting during the agricultural year.

Article 573

Whenever the usufruct includes things which, without being consumed, gradually deteriorate through wear and tear, the usufructuary shall have the right to make use thereof in accordance with the purpose for which they are intended, and shall not be obliged to return them at the termination of the usufruct except in their condition at that time; but he shall be obliged to indemnify the owner for any deterioration they may have suffered by reason of his fraud or negligence.

Article 574

Whenever the usufruct includes things which cannot be used without being consumed, the usufructuary shall have the right to make use of them under the obligation of paying their appraised value at the termination of the usufruct, if they were appraised when delivered. In case they were not appraised, he shall have the right to return the same quantity and quality, or pay their current price at the time the usufruct ceases.

Article 575

The usufructuary of fruit-bearing trees and shrubs may make use of the dead trunks, and even of those cut off or uprooted by accident, under the obligation to replace them with new plants.

Article 576

If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in such considerable number that it would not be possible or it would be too burdensome to replace them, the usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the latter remove them and clear the land.

Article 577

The usufructuary of woodland may enjoy all the benefits which it may produce according to its nature. If the woodland is a copse or consists of timber for building, the usufructuary may do such ordinary cutting or felling as the owner was in the habit of doing, and in default of this, he may do so in accordance with the custom of the place, as to the manner, amount and season.

In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of the land.

In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may properly grow.

With the exception of the provisions of the preceding paragraphs, the usufructuary cannot cut down trees unless it be to restore or improve some of the things in usufruct, and in such case shall first inform the owner of the necessity for the work.

Article 578

The usufructuary of an action to recover real property or a real right, or any movable property, has the right to bring the action and to oblige the owner thereof to give him the authority for this purpose and to furnish him whatever proof he may have.

If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct shall be limited to the fruits, the dominion remaining with the owner.

Article 579

The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he shall have no right to be indemnified therefor.

He may, however, remove such improvements, should it be possible to do so without damage to the property.

Article 580

The usufructuary may set off the improvements he may have made on the property against any damage to the same.

Article 581

The owner of property the usufruct of which is held by another, may alienate it, but he cannot alter its form or substance, or do anything thereon which may be prejudicial to the usufructuary.

Article 582

The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the owner thereof with respect to the administration and the collection of fruits or interest. Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the part allotted to the co-owner shall belong to the usufructuary.

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Audiobook Civil Law Property

Property Law Audiobook #7: Possession

TITLE V POSSESSION

CHAPTER 1
POSSESSION AND THE KINDS THEREOF

Article 523
Possession is the holding of a thing or the enjoyment of a right.
Article 524
Possession may be exercised in one’s own name or in that of another. Article 525

The possession of things or rights may be had in one of two concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person.

Article 526

He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.

He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. Mistake upon a doubtful or difficult question of law may be the basis of good faith.

Article 527

Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof.

Article 528

Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully.

Article 529

It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proved.

Article 530

Only things and rights which are susceptible of being appropriated may be the object of possession.

CHAPTER 2
ACQUISITION OF POSSESSION

Article 531

Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right.

Article 532

Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by any person without any power whatever: but in the last case, the possession shall not be considered as acquired until the person in whose name the act of possession was executed has ratified the same, without prejudice to the juridical consequences of negotiorum gestio in a proper case.

Article 533

The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted.

One who validly renounces an inheritance is deemed never to have possessed the same.

Article 534

One who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good faith shall not benefit him except from the date of death of the decedent.

Article 535

Minors and incapacitated persons may acquire the possession of things; but they need the assistance of their legal representatives in order to exercise the rights which from the possession arise in their favor.

Article 536

In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto.

He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing.

Article 537

Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession.

Article 538

Possession as a fact cannot be recognized at the same time in two different personalities except in the cases of co-possession.

Should a question arise regarding the fact of possession, the present possessor shall be preferred; if there are two possessors, the one longer in possession; if the dates of the possession are the same, the one who presents a title; and if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings.

CHAPTER 3
EFFECTS OF POSSESSION

Article 539

Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court.

A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession.

The court shall decide the motion within thirty (30) days from the filing thereof. Article 540

Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion.

Article 541

A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it.

Article 542

The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded.

Article 543

Each one of the participants of a thing possessed in common shall be deemed to have exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period during which the co-possession lasted.

Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors.

However, in case of civil interruption, the Rules of Court shall apply. Article 544

A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.

Natural and industrial fruits are considered received from the time they are gathered or severed.

Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.

Article 545

If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession.

The charges shall be divided on the same basis by the two possessors.

The owner of the thing may, should he so desire, give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds; the possessor in good faith who for any reason

whatever should refuse to accept this concession, shall lose the right to be indemnified in any other manner.

Article 546

Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.

Article 547

If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the option under paragraph 2 of the preceding article.

Article 548

Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.

Article 549

The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of article 546 and in article 443.

The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession.

Article 550
The costs of litigation over the property shall be borne by every possessor. Article 551

Improvements caused by nature or time shall always inure to the benefit of the person who has succeeded in recovering possession.

Article 552

A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons.

A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event.

Article 553

One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the time he takes possession of the thing.

Article 554

A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary.

Article 555
A possessor may lose his possession:
(1) By the abandonment of the thing;
(2) By an assignment made to another either by onerous or gratuitous title;
(3) By the destruction or total loss of the thing, or because it goes out of commerce;

(4) By the possession of another, subject to the provisions of article 537, if the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years.

Article 556

The possession of movables is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know their whereabouts.

Article 557

The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and the Land Registration laws.

Article 558

Acts relating to possession, executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or keep it, in any character, do not bind or prejudice the owner, unless he gave said holder express authority to do such acts, or ratifies them subsequently.

Article 559

The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same.

If the possessor of a movable lost or which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor.

Article 560

Wild animals are possessed only while they are under one’s control; domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor.

Article 561

One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption.

Categories
Audiobook Civil Law Property

Property Law Audiobook #6: Some Special Properties

TITLE IV
SOME SPECIAL PROPERTIES

CHAPTER 1 WATERS
SECTION 1 OWNERSHIP OF WATERS

Article 502

The following are of public dominion:

(1) Rivers and their natural beds;

(2) Continuous or intermittent waters of springs and brooks running in their natural beds and the beds themselves;

(3) Waters rising continuously or intermittently on lands of public dominion;

(4) Lakes and lagoons formed by Nature on public lands, and their beds;

(5) Rain waters running through ravines or sand beds, which are also of public dominion;

(6) Subterranean waters on public lands;

(7) Waters found within the zone of operation of public works, even if constructed by a contractor;

(8) Waters rising continuously or intermittently on lands belonging to private persons, to the State, to a province, or to a city or a municipality from the moment they leave such lands;

(9) The waste waters of fountains, sewers and public establishments.

Article 503

The following are of private ownership:

(1) Continuous or intermittent waters rising on lands of private ownership, while running through the same;

(2) Lakes and lagoons, and their beds, formed by Nature on such lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they remain within the boundaries;

(5) The beds of flowing waters, continuous or intermittent, formed by rain water, and those of brooks, crossing lands which are not of public dominion.

In every drain or aqueduct, the water, bed, banks and floodgates shall be considered as an integral part of the land of building for which the waters are intended.

The owners of lands, through which or along the boundaries of which the aqueduct passes, cannot claim ownership over it, or any right to the use of its bed or banks, unless the claim is based on titles of ownership specifying the right or ownership claimed.

SECTION 2
THE USE OF PUBLIC WATERS

Article 504
The use of public waters is acquired: (1) By administrative concession;
(2) By prescription for ten years.

The extent of the rights and obligations of the use shall be that established, in the first case, by the terms of the concession, and, in the second case, by the manner and form in which the waters have been used.

Article 505
Every concession for the use of waters is understood to be without prejudice to third persons. Article 506

The right to make use of public waters is extinguished by the lapse of the concession and by non-user for five years.

SECTION 3
THE USE OF WATERS OF PRIVATE OWNERSHIP

Article 507

The owner of a piece of land on which a spring or brook rises, be it continuous or intermittent, may use its waters while they run through the same, but after the waters leave the land they shall become public, and their use shall be governed by the Special Law of Waters of August 3, 1866, and by the Irrigation Law.

Article 508

The private ownership of the beds of rain waters does not give a right to make works or constructions which may change their course to the damage of third persons, or whose destruction, by the force of floods, may cause such damage.

Article 509

No one may enter private property to search waters or make use of them without permission from the owners, except as provided by the Mining Law.

Article 510

The ownership which the proprietor of a piece of land has over the waters rising thereon does not prejudice the rights which the owners of lower estates may have legally acquired to the use thereof.

Article 511

Every owner of a piece of land has the right to construct within his property, reservoirs for rain waters, provided he causes no damage to the public or to third persons.

SECTION 4 SUBTERRANEAN WATERS

Article 512

Only the owner of a piece of land, or another person with his permission, may make explorations thereon for subterranean waters, except as provided by the Mining Law.

Explorations for subterranean waters on lands of public dominion may be made only with the permission of the administrative authorities.

Article 513

Waters artificially brought forth in accordance with the Special Law of Waters of August 3, 1866, belong to the person who brought them up.

Article 514

When the owner of waters artificially brought to the surface abandons them to their natural course, they shall become of public dominion.

SECTION 5
GENERAL PROVISIONS

Article 515

The owner of a piece of land on which there are defensive works to check waters, or on which, due to a change of their course, it may be necessary to reconstruct such works, shall be obliged, at his election, either to make the necessary repairs or construction himself, or to permit them to be done, without damage to him, by the owners of the lands which suffer or are clearly exposed to suffer injury.

Article 516

The provisions of the preceding article are applicable to the case in which it may be necessary to clear a piece of land of matter, whose accumulation or fall may obstruct the course of the waters, to the damage or peril of third persons.

Article 517

All the owners who participate in the benefits arising from the works referred to in the two preceding articles, shall be obliged to contribute to the expenses of construction in proportion to their respective interests.

Those who by their fault may have caused the damage shall be liable for the expenses. Article 518

All matters not expressly determined by the provisions of this Chapter shall be governed by the Special Law of Waters of August 3, 1866, and by the Irrigation Law.

CHAPTER 2 MINERALS

Article 519

Mining claims and rights and other matters concerning minerals and mineral lands are governed by special laws.

CHAPTER 3
TRADE-MARKS AND TRADE-NAMES

Article 520

A trade-mark or trade-name duly registered in the proper government bureau or office is owned by and pertains to the person, corporation, or firm registering the same, subject to the provisions of special laws.

Article 521

The goodwill of a business is property, and may be transferred together with the right to use the name under which the business is conducted.

Article 522
Trade-marks and trade-names are governed by special laws.

Categories
Audiobook Civil Law Property

Property Law Audiobook #5: Co-Ownership

TITLE III CO-OWNERSHIP

Article 484

There is co-ownership whenever the ownership of an undivided thing or right belongs to different persons. In default of contracts, or of special provisions, co-ownership shall be governed by the provisions of this Title.

Article 485

The share of the co-owners, in the benefits as well as in the charges, shall be proportional to their respective interests. Any stipulation in a contract to the contrary shall be void.

The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is proved.

Article 486

Each co-owner may use the thing owned in common, provided he does so in accordance with the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by agreement, express or implied.

Article 487
Any one of the co-owners may bring an action in ejectment. Article 488

Each co-owner shall have a right to compel the other co-owners to contribute to the expenses of preservation of the thing or right owned in common and to the taxes. Any one of the latter may exempt himself from this obligation by renouncing so much of his undivided interest as may be equivalent to his share of the expenses and taxes. No such waiver shall be made if it is prejudicial to the co-ownership.

Article 489

Repairs for preservation may be made at the will of one of the co-owners, but he must, if practicable, first notify his co- owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be decided upon by a majority as determined in article 492.

Article 490

Whenever the different stories of a house belong to different owners, if the titles of ownership do not specify the terms under which they should contribute to the necessary expenses and there exists no agreement on the subject, the following rules shall be observed:

(1) The main and party walls, the roof and the other things used in common, shall be preserved at the expense of all the owners in proportion to the value of the story belonging to each;

(2) Each owner shall bear the cost of maintaining the floor of his story; the floor of the entrance, front door, common yard and sanitary works common to all, shall be maintained at the expense of all the owners pro rata;

(3) The stairs from the entrance to the first story shall be maintained at the expense of all the owners pro rata, with the exception of the owner of the ground floor; the stairs from the first to the second story shall be preserved at the expense of all, except the owner of the ground floor and the owner of the first story; and so on successively.

Article 491

None of the co-owners shall, without the consent of the others, make alterations in the thing owned in common, even though benefits for all would result therefrom. However, if the withholding of the consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate relief.

Article 492

For the administration and better enjoyment of the thing owned in common, the resolutions of the majority of the co- owners shall be binding.

There shall be no majority unless the resolution is approved by the co-owners who represent the controlling interest in the object of the co-ownership.

Should there be no majority, or should the resolution of the majority be seriously prejudicial to those interested in the property owned in common, the court, at the instance of an interested party, shall order such measures as it may deem proper, including the appointment of an administrator.

Whenever a part of the thing belongs exclusively to one of the co-owners, and the remainder is owned in common, the preceding provision shall apply only to the part owned in common.

Article 493

Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved.

But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

Article 494

No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership.

Article 495

Notwithstanding the provisions of the preceding article, the co-owners cannot demand a physical division of the thing owned in common, when to do so would render it unserviceable for the use for which it is intended. But the co-ownership may be terminated in accordance with article 498.

Article 496

Partition may be made by agreement between the parties or by judicial proceedings. Partition shall be governed by the Rules of Court insofar as they are consistent with this Code.

Article 497

The creditors or assignees of the co-owners may take part in the division of the thing owned in common and object to its being effected without their concurrence. But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made notwithstanding a formal opposition presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity.

Article 498

Whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed.

Article 499

The partition of a thing owned in common shall not prejudice third persons, who shall retain the rights of mortgage, servitude or any other real rights belonging to them before the division was made. Personal rights pertaining to third persons against the co-ownership shall also remain in force, notwithstanding the partition.

Article 500

Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud.

Article 501

Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to each of the other co-owners.

Categories
Audiobook BAR FAQs Civil Law Q&A Persons and Family Relations Q&A

BAR Reviewer in Persons and Family Relations Part 2

Philippine Bar Exams Reviewer for Civil Law – Persons and Family Relations Part 2 Natural and Juridical Persons 15 Questions and Answers (with Subquestions)

Question #1 Define persons.

In its juridical sense, a “person” may be defined as a being, physical or moral, real or juridical and legal, which is susceptible to obligations, or of being the subject of legal relations.

Question #2

How are persons classified? Distinguish one from the other.

Persons are classified into natural and juridical persons.

The two may be distinguished from each other as follows:

(1) A natural person or human being has physical existence, whereas a juridical person exists only in contemplation of law;

(2) A natural person is the product of procreation, whereas a juridical person is the product of legal fiction.

Question #3
What is meant by “juridical capacity” and “capacity to act”? Distinguish one from the other.

“Juridical capacity” is the fitness to be the subject of legal relations, while “capacity to act” is the power to do acts with legal effect.

They may be distinguished from each other as follows:

(1) Juridical capacity is inherent in every natural person, and therefore, is not acquired, whereas capacity to act is not, and therefore, is acquired.

(2) Juridical capacity is lost only through death, whereas capacity to act may be lost through other means or circumstances.

(3) Juridical capacity cannot be limited or restricted, whereas capacity to act can be limited or restricted by certain circumstances.

(4) Juridical capacity can exist without capacity to act, but the existence of the latter always implies that of the former.

Question #4

What are the circumstances which modify or limit capacity to act?
The following circumstances, among others, modify or limit the capacity to act:

Age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship.

The consequences of these circumstances are governed in the Civil Code, other codes, the rules of court, and in special laws.

Capacity to act is not limited on account of religious belief or political opinion. Question #5
What is meant by status?
The status of a person is the legal condition or class to which one belongs in society. Question #6

What is meant by civil personality?
Civil personality is merely the external manifestation of either juridical capacity or capacity to act. Consequently, it may be defined as the aptitude of being the subject of rights and obligations. Question #7
When does civil personality begin in natural persons?

Article 5 of P.D. No. 603, which declares that the civil personality of the child shall commence from the time of his conception, for all poses favorable to him, subject to the requirements of Article 41 of the Civil Code of the Philippines.

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb.

However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.

Question #8
How is civil personality extinguished?
Death extinguishes civil personality.
However, the rights and obligations of the deceased are not necessarily extinguished by his death.

Question #9

What is the effect if there is a doubt as to which of two persons, who are called to succeed each other, died first?

If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other.

Question #10
What are the presumptions on survivorship under the Revised Rules of Court?

The presumptions on survivorship under the Revised Rules of Court are those provided for in Rule 131, Section 3.

They are as follows:

That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived, if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived.

Question #11

When is the presumption given in Article 43 of the Civil Code of the Philippines applicable? How about the presumptions on survivorship?

The presumption given in Article 43 of the Civil Code of the Philippines is applicable when the following requisites are present:

First, the parties are heirs to one another; Second, there is no proof as to who died first; and

Third, there is doubt as to who died first.

The presumptions on survivorship, on the other hand, is applicable if the following requisites are present:

First, there are two or more persons;

Second, they perish in the same calamity;

Third, it is not shown who died first; and

Fourth, there are no particular circumstances from which it can be inferred that one died ahead of the other.

Question #12

How are juridical persons classified?

The following are the different kinds of Juridical Persons:

1. The State and its political subdivisions;

2. Other corporations, institutions and entities for public interest or purpose, created by law; their personality begins as soon as they have been constituted according to law;

3. Corporations, partnerships and associations for private interest or purpose to which the law grants a juridical personality, separate and distinct from that of each shareholder, partner or member;

4. The Roman Catholic Church being considered as one because of tradition; 5. The estate of a deceased person.
Question #13
What is the capacity of a juridical person?

A juridical person can acquire and possess property of all kinds as well as incur obligations and bring civil or criminal actions, provided that they are in conformity with the laws and regulations of their organization.

Question #14
Who are citizens of the Philippines under the new Constitution?
The following are citizens of the Philippines in accordance with the new Constitution:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;

(2) Those whose fathers or mothers are citizens of the Philippines;

(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law. Question #15

For the exercise of civil rights and the fulfillment of civil obligations, what is the domicile of natural and juridical persons?

For the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the place of habitual residence.

While the domicile of juridical persons is the place fixed by the law creating or recognizing the juridical person; and in the absence thereof, the place where their legal representation is established or where they exercise their principal functions.

Categories
Audiobook BAR FAQs Civil Law Q&A Persons and Family Relations Q&A

BAR Reviewer in Persons and Family Relations Part 1

Philippine Bar Exams Reviewer for Civil Law Persons and Family Relations (Part 1) General Considerations – 39 Questions and Answers

#1. ​When do laws in the Philippines take effect?

Laws in the Philippines take effect after fifteen (15) days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided.

#2​​What is a retroactive law?

It is one intended to affect transactions which occurred, or rights which accrued, before it becomes operative, and which ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence.

#3. What are the exceptions to the rule that laws shall have no retroactive effect? The following are the exceptions to the rule that laws shall have no retroactive effect:

  1. When the law itself expressly provides for its retroactivity;
  2. When the law is penal insofar as it favors the accused; provided that the accused is not a habitual delinquent;
  3. When the law is procedural so long as it does not affect or change vested rights;
  4. When the law creates new substantive rights;
  5. When the law is curative in character in the sense that the purpose of its enactment is to cure defects or imperfections in judicial or administrative proceedings; and
  6. When the law is interpretative of other laws.

#4. ​What are mandatory laws?

Laws the violations of which, tenders the act or proceeding illegal and void.

$5. What are prohibitory laws?

Laws which, if omitted, renders the proceeding or acts relating to it generally illegal or void.

#6. What are the exceptions to the rule that an act executed against provisions of mandatory or prohibitory laws shall be void?

The following are the exceptions:

  1. Where the law itself authorizes its validity;
  2. Where the law makes the act valid but punishes the violator;
  3. Where the law makes the act only voidable; and
  4. Where the law declares the nullity of an act but recognizes its effects as legally existing.

#7. ​What is a waiver?
It is the intentional relinquishment of a known right or such conduct as warrants an inference of

relinquishment of such right. #8. What is a right?

The power or privilege given to one person and, as a rule, is demandable of another. It denotes an interest or title in an object or property.

#9. Rights may be waived. In what cases may waiver be prohibited and declared null and void? Waiver is prohibited and may be declared dull and void when:

  1. It is contrary to law, public order, public policy, morals and good customs;
  2. When prejudicial to a third person with a right recognized by law.

#10. What are some instances where waiver is considered void? Waiver is considered void in such instances such are:

  1. Waiver of future support;
  2. Waiver of political rights;
  3. Waiver of future inheritance especially if the waiver intended to prejudice creditors.

#11. What are the requisites of a valid waiver? The following are the requisites of a valid waiver:

  1. Full capacity to make the waiver;
  2. Waiver must be unequivocal;
  3. Right must exist at the time of the waiver;
  4. It must not be contrary to law, public policy, morals or good customs;
  5. It must be prejudicial to a third person with a right recognized by law; and
  6. When formalities are required, the same must be complied with.

#12. ​What is a repeal of a law?
It is the legislative act of abrogating through a subsequent law the effects of a previous statute or portions

thereof.
#13. What are the types of repeal? Define each.

1. Express Repeal – One which is literally declared by a new law, either in specific terms, as where particular laws and provisions are named, identified, and declared to be repealed, or in general terms.

2. Implied Repeal – It takes place when a new law contains provisions contrary to or inconsistent with those of a former law without expressly repealing them.

#14. What are the requisites of an implied repeal? The following are the requisites of an implied repeal:

  1. The laws cover the same subject matter; and
  2. The latter is repugnant to the other.

#15. ​What is private international law?

It is a part of municipal law of a state which directs its courts and administrative agencies when confronted with a legal problem involving foreign element, whether or not they should apply the foreign law.

#16. What is conflict of laws?

It is the inconsistency or difference between the laws of different states or countries, arising in the case of persons who have acquired rights, incurred obligations, injuries or damages, or made contracts, within the territory of two or more jurisdictions.

#17. What are the elements of conflicts of laws? The following are the elements of conflict of laws:

  1. Legal problem or case involving foreign element; and
  2. Foreign element – factual situation cutting across territorial lines, affected by diverse laws of two or more states.

Primary function is to determine whether the law or judgments of other state/s will govern and if so the extent if its recognition or application in the forum

#18. What are the different conflict-of-law rules found in the New Civil Code and the Family Code which sanction the operation of either Philippine laws upon Filipinos residing or sojourning abroad and foreign laws upon foreigners residing or sojourning in the Philippines?

They are the following:

  1. With respect to penal laws and laws of public security – Although penal laws are obligatory upon who live or sojourn in Philippine territory, nevertheless, this rule is subject to the principles of public international law and to treaty stipulations.
  2. With respect to laws relating to Family Rights and Duties or to the Status, Condition and Legal Capacity of Persons – As a general rule, nationality rule applies regardless of their place of residence.However, if a divorce is validly obtained abroad by alien spouse capacitating him or her to remarry, the Fiipino spouse shall have the capacity to remarry under Philippine law.
  3. With respect to Laws on Real and Personal Property – The doctrine of Lex Rei Sitae shall govern which provides that the law of the country where the property is situated shall govern property transactions.

The following are its exceptions:

  1. Capacity to succeed;
  2. Intrinsic Validity of testamentary provisions;
  3. Amount of successional rights; and
  4. Order of succession.

4. With respect to Laws on Forms and Solemnities – The doctrine of Lex Loci Celebrationis shall govern which provides that forms and solemnities of contracts, wills and other public instruments (pertaining to extrinsic validity) shall be governed by the laws of the country in which they are executed.

The following are its exceptions:

  1. Marriage between Filipinos validly solemnized abroad shall be void when under Philippine laws, such marriage is void; and
  2. Intrinsic Validity of Contracts which shall be determined by the following rules:
    1. The law stipulated by the parties shall be applied;
    2. In default thereof, and the parties are of the same nationality, their national law shall be applied;
    3. If the parties are not of the same nationalities, the law of the place of the perfection of the obligation shall govern its fulfillment; or
    4. If the above places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the passive subject shall apply.

#19. What are the rules on personal law? Distinguished.

  1. Domiciliary Rule where the basis of determining personal law of an individual is his domicile; and
  2. Nationality Rule where the basis of determining personal law is his citizenship.

#20. What are the rules to follow when the court is confronted with a case involving a foreign element? If the court is faced with a case involving a foreign element, it should first determine:

  1. Whether it has jurisdiction over the case
  2. If it has no jurisdiction, it should be dismissed on that ground;
  3. If it has jurisdiction, the court will determine whether it should assume jurisdiction, or it should dismiss the case on the ground of forum non-convenience;
  4. Once the court has determined it has jurisdiction over the case, it will next determine whether to apply the internal law of the forum or apply the proper foreign law.

#21. What is Forum Non Conveniens?
It is the refusal to assume jurisdiction because it would prove inconvenience for the forum. #22. When can internal or domestic law be applied?

Internal or domestic law can be applied when:

  1. Law of the forum expressly so provides in its conflicts rule;
  2. Proper foreign law has not been properly pleaded and proved;
  3. Case involves any of the exceptions to the application of the foreign law.

#23. What is the Doctrine of Processual Presumption of law?

When the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as the law of the forum that said court can now apply.

It applies when the foreign law is not alleged or if alleged, it is not proved. #24. What is renvoi doctrine?

It literally means referring back. It occurs when a citizen of another country dies as a domiciliary of another country.

Where the conflict rules of the forum refer to a foreign law, and the latter refers it back to the internal law, the law of the forum shall apply.

#25. What will the Courts do, if it is confronted with a case with a “Renvoi” problem? The Court has the following options:

  1. Reject the renvoi – If the conflict rules of the forum refer later the case to the law of another state, it is deemed to mean only the internal law of that state.Thus, the court will apply the foreign law.
  2. Accept the renvoi – If the conflict rules of the forum refer the case to the law of another state, it is deemed to include the totality of the foreign law (internal law and conflict of law rules).Thus the court will recognize the referral back and apply the local law.
  3. Follow the Theory of Desisment – also referred to as Mutual Disclaimer of Jurisdiction Theory.The forum court upon reference to another state’s law sees that such law is limited in application to its own nationals domiciled in its territory and has no provision for application to nationals domiciled outside of the territory.Hence the local court will apply the local law.

NOTE: This has the same result as the acceptance of the renvoi doctrine but the process used by the forum court is to desist applying the foreign law.

D. Make use of the Foreign Court Theory – Forum acourt assumes the same position that the foreign court would take if the case is litigated in the foreign state.

#26. What is transmission theory?
It provides that if the foreign law refers it to a third country, the said country’s law shall govern.

#27.​ What is the principle of abuse of rights?
The principle of abuse of rights departs from the classical theory that “he who uses a right injures no one.”

The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit.

#28. Is abuse of rights actionable? Explain. Yes, abuse of rights is actionable.

This is clear from the provision of Art. 19 of the NCC, which declares that “every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith,” and from the provision of Art. 20, which declares that “every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.”

#29. What elements of an abuse of right must be present in order that it will be actionable? The following elements must concur:

  1. There is a legal right or duty;
  2. Which is exercised in bad faith; and
  3. For the sole intent of prejudicing or injuring another.

#30. What is the doctrine of Volenti Non Fit Injuria?

It refers to self-inflicted injuries or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so.

#31. What is the doctrine of Damnum Absque Injuria?

It means damage without injury. One who merely exercises one’s rights does no actionable injury and cannot be held liable for damages.

#32. What is the difference between injury and damage?

Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.

There can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone.

#33. What is the principle of Contra Bonus Mores?

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

#34. What are the elements of an action under the principle of Contra Bonus Mores? The following are the elements:

A. There is an act which is legal;

  1. Such act is contrary to morals, good customs, public order or policy;
  2. It is done with intent to injure.

#35. What is Accion In Rem Verso?
It is the remedy for unjust enrichment.
It is an action for recovery of what has been paid or delivered without just cause or legal ground.

If a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obligation to return the same.

#36. What are the elements in order to enforce an Accion In Rem Verso? The following are the requisites:

  1. The defendant has been enriched;
  2. The plaintiff has suffered a loss;
  3. The enrichment of the defendant is without just or legal ground; and
  4. The plaintiff has no other action based on contract, quasi-contract, crime or quasi-delict.

#37.​ What is a prejudicial question?
A prejudicial question is a question which arises in a case, the resolution of which is a logical antecedent

of the issue involved in said case, and the cognizance of which pertains to another tribunal. #38. What are the elements of a prejudicial question?

They are: first, that it must be determinative of the guilt or innocence of the accused in the criminal case; and second, jurisdiction to try said question must be lodged in another tribunal.

#39. What is its effect upon a criminal action?
Its effect upon a criminal case is to suspend it if one has already been commenced. (Art. 36, NCC.) This is, of course, the reverse of the ordinary rule of procedure.

The reason for this is that the resolution of the question is determinative of the guilt or innocence of the accused in the criminal case.

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Rules of Court 127 Audiobook: Provisional Remedies in Criminal Cases

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RULE 127 – Provisional Remedies in Criminal Cases
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Rules of Court 126 Audiobook: Search and Seizure

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