1989 Bar Examination

8/8/2019 1989 Bar Examination

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1989 Bar Examination

457 Question No. 6

457. (2). Spouses A and B are registered owners of lot 1 consisting of 20, 000

square meters while spouses C and D are owners of lot 2. These are separated by ariver. For a period of more than 40 years, the river overflowed its banks yearly and the

property of spouses C and D gradually received deposits of soil from the effects of

the current of the river so that an alluvial deposit of 29, 000 square meters was added totheir lot, 11, 000 square meters of which used to be part of lot 1. Spouses A and B

contend that accretion should not extend to registered land because to allow spouses C

and D to acquire title over the accretion will be in derogation of the indefeasibility of

the Torrens title of Spouses A and B. Is this contention correct? Explain.

Answer:

No, the contention of A and B is not correct because the registration under theTorrens Law does not protect the owner against diminution of his land

through gradual changes due to the effects of the current of the river. Theaccretion will benefit C and D.

457. (2) Subsequent to the original registration of a parcel of land bordering a river, its

area was increased by accession. This additional area was not included in the technicaldescription appearing in the Torrens Certificate of Title having been acquired subsequent

to the registration proceedings. May such additional area be acquired by third persons

thru prescription? Give your reasons.

Answer:

The Land Registration Law provides that no title in derogation of the

registered owner may be acquired by adverse possession or acquisition

possession. Since the law refers to registered lands, the accession mentionedin this question may be acquired by a third person through adverse possession

or acquisition possession.

Alternative Answer:

If the accession is man made, then it cannot be considered as private

property. It belongs to the public domain, and, therefore, cannot be acquiredby adverse possession or acquisition possession.

Question No 11.

921 (2). Jose and Ana are husband and wife. On January 10, 1980 learned that Ana

having illicit relations with Juan. In fact, Jose personally saw his wife and Juan leaving a

motel on one occasion. Despite all the evidence he had at hand. Jose did not bring any


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action for legal separation against Ana. Instead, Jose simply prepared a will wherein he

disinherited Ana for her acts of infidelity. The validity of the disinheritance was

questioned by Ana upon Joses death. If you were the judge, how would you resolve thisquestion? Give your reasons.

Answer:

The disinheritance is valid. Under the Civil Code, the legal ground for

disinheriting a spouse is that the spouse has given cause for legal separation.Therefore, a final judgement is not needed.

Alternative Answer:

The disinheritance is not valid. The facts indicate that there was

condonation by Jose of Anas illicit relationship with Juan since they appear

to have continued to live together.

Question No 13.

1403. (2). X came across an advertisement in the Manila Daily Bulletin about the

rush sale of three slightly used TOYOTA cars, model 1989 for only P200,000 each.

Findings the price to be very cheap and in order to be sure he gets one unit ahead of the

others, X immediately phoned the advertiser Y and place an order for one car. Yaccepted the order and promised to deliver the ordered unit on July 15, 1989. On the said

date, however, Y did not deliver the unit. X brings an action to compel Y to deliver

the unit. Will such action prosper? Give your reasons.

Answer:

The contract in this case has been perfected. However, unenforceable under

the statute of frauds. The action will prosper if there is no objection to the oral

evidence, which amounts to a waiver of the statute of frauds.

1988 BAR EXAMINATION

670 Question No.3

(c) About fifteen years ago, Adelaida constructed a house on her lot at Quezon City

adjoining a lot owned by Bernie. She provided it with several windows overlookingBernies lot half a meter away from the boundary line. A month ago, Bernie brought an

action against Adelaida for the closure of the windows alleging that they violate the law

on distances.

1. Has Adelaida acquired an easement of light and view by prescription?

2. Will the action of Bernie prosper?


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3. If the action will not prosper, will that not be tantamount to saying that Adelaida

has already acquired an easement of light and view?

Answer:

(a) Continuous and apparent easements are acquired either by virtue of a title

or by prescription of ten years (Art 620, CC), while continuousnonapparent, can only be acquired by virtue of a title (Art. 622, CC).

(b) In order that an easement may be acquired by prescription, the time of

possession shall be computed thus: In positive easements, from the day onwhich 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 notarypublic, the owner of the servient estate, from executing an act which

would be lawful without the easement. (Art. 621, CC.)

(c) (1) Adelaida has not acquired an easement of light and view by

prescription after ten years. There are two reasons for this. In the firstplace, there was no formal prohibition as required by law. This should

have been done by means of an instrument acknowledged before a notarypublic wherein she should have prohibited Bernie from obstructing his

light and view. She did not. In the second place, she did not observe legal

requirement that there should be a distance of at least two meters between

the windows and Bernies lot, since the view is direct. According to theCivil Code, non- observance of this distance does not give rise to

prescription.

(2)The action will not proper because more than ten years has alreadyelapsed from the time of the opening of the windows. Bernies action has

already prescribed.

(3) This is not tantamount to saying that Adelaida has already acquired aneasement of light and view. Under the Civil Code, nobody can prevent

Bernie from obstructing Adelaidas light and view by constructing s

building on his lot or by raising a wall thereon contiguous to the windowsof Adelaida.

728 Question No. 4 (1988 Bar Examination)

(b) A donated to X a parcel of land in 1975. The donation was made in a public

instrument, while the acceptance made by X was embodied in the same public

instrument. The Deed of Donation was entitled DonationInter Vivos. There is howeverprovision in the deed to the effect that, although the land donated shall be delivered

immediately to X upon the perfection of the donation with full right to enjoy all of the

fruits thereof, title shall pass to the donee only upon the donors death. Upon the deathof A, his widow and only heir, B, brought an action for the recovery of the property on

the ground that the donation is a donation mortis causa and not a donation inter vivos.

Will the action prosper? Give your reasons.


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Answer:

(A) When the Civil Code speaks of law as a distinct mode of acquiring

ownership, it refers to those instances where the law, independently of

the other modes of acquiring ownership, automatically and directlyvests the ownership of the thing in a certain individual once the

prescribed requisites or conditions are present or complied with.

Examples of this are:

(1) Land which belongs exclusively to either of the spouses where a

building is constructed with conjugal funds. Here, the ownership ofthe land is vested automatically in the conjugal partnership once the

condition that its value has been reimbursed to the owner has been

complied with (Art. 158, par. 2, CC.)

(2) Hidden treasure which a stranger discovers by chance on anothersproperty. Here, one-half of the treasure belongs by right of occupation

to the stranger, while the other half belongs by operation of law to theproprietor. (Art. 438. par. 2, CC.)

(3) Abandoned beds, when a river or stream suddenly changes its course

to traverse private lands. The former owners of the new bed shall be

the owners of the abandoned bed in proportion to the area lost byeach. (Art. 58, P.D. No. 1067.)

(4) Fruits naturally falling from a tree upon adjacent land. Here, the

ownership of the fruits is vested automatically in the owner of theadjacent land. (Art. 681, CC.)

(b) Yes, the action will prosper. In Bonsato vs. Court of Appeals, and

Howard vs. Court of Appeals, the Supreme Court declared that in orderthat a donation will be considered a disposition post mortem, it should

reveal any or all of the following characteristics:

(1) Convey no title or ownership to the transferee before the

before the death of the transferor; or, what amounts to the

same thing, that the transferor should retain the ownership,

full or naked, and control the property while alive;(2) That before his death the transfer should be revocable by the

transferor at will, ad nutum; but revocability may be provided

for indirectly by means of a reserved power in the donor todispose of the property conveyed;

(3) That the transfer should be void if the transferor should

survive the transferee.It is clear from the facts stated in the problem that the

donation reveals the first characteristics. Hence, it is a

disposition post mortem. Therefore, in order that the donation

can take effect it is essential that it must be made in a will


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executed in accordance with all of the formalities prescribed

by law (Art. 728, CC) Since this requisite has not been

complied with, the donation in the instant case is void orinexistent.

1174 Question No. 8(1988 Bar Examination)

1174 (a) Mario received from Edgar a pendant with a diamond valued at P5,000.00 to be

sold on commission basis or to be returned in demand. In the evening of August 31,1987, while he was walking home, two men snatched his clutched bag containing the

pendant and ran away. Subsequently, the snatchers were apprehended and charged.

During the pendency of the criminal case, Edgar brought an action Mario for the recovery

of the pendant or its value and damages. Mario interposed the defense of fortuitous eventbut Edgar contends

(1) That the defense of fortuitous event is untenable because there was

negligence on the part of the defendant; and(2) That if the defense is untenable, there must be a prior conviction or

robbery before it can be availed of. Decide the case.(3) Distinguish between the effects of suspensive and resolutory conditions

upon an obligations.

Answer:

(a) The factual setting of the above problem is identical to that of Asutria vs.

Court of Appeals (39 SCRA 527). In that case the Supreme Court held thatthe defendant is not liable.

To constitute a caso fortuito that would exempt a person from

responsibility, it is necessary (1) that the event must be independent of thewill of the debtor; (2) that its must either unforeseeable or unavoidable; (3)

that the occurrence must render it impossible for the debtor to fulfill the

obligation in a normal manner; and (b) that the debtor must be free ofparticipation in, aggravation of, the injury to the creditor.

All of the above requisites or conditions are present in this case. It

is undeniable that in order to completely exonerate the debtor by reason ofa fortuitous event, such debtor must, in addition into the causes itself, be

free of any concurrent or contributory fault or negligence. We believe,

however, that her act in traveling alone in the evening, carrying a jewelryof considerable value, cannot be considered as either concurrent or

contributory negligence. While it may be considered now, we are not

persuaded that the same rule should obtain ten years previously when therobbery in question took place, for at that time criminality had not reached

the levels attained in the present day.

There is likewise no merit in the contention that to allow the fact of

robbery to be recognized in this case before conviction is secured in the


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criminal action, would prejudice the latter case, or would result in

consistency should be accused obtain an acquittal or should the criminal

case be dismissed. It must be realized that a court finding that a robberyhas happened would not necessarily mean that those accused in the

criminal action would be found guilty of the crime, nor would be a ruling

that those actually accused did not commit robbery be inconsistent with afinding that a robbery did take place. The evidence to establish these facts

would not necessarily be the same.

(b) It is evident that a resolutory condition affects the obligation to which it is

attached in a manner which is diametrically opposed to that of suspensive

condition. If the suspensive condition is fulfilled, the obligation arises or

becomes effective if the resolutory condition is fulfilled, the obligation isextinguished. If the first is not fulfilled, the juridical relation is created; if

the second is not fulfilled, the juridical relation is consolidated. In other

words, in the first, rights are not yet acquired, but there is a ,hope of

expectancy that they will soon be acquired; in the second, rights arealready acquired, but subject to the threat of extinction (8 Manressa, 5 th

Ed., Bk. 1,p.311.)

Suggested Alternative Answer to NO. 8 (a):

(a) (1) We would like to call attention to the fact that the question sayscontends. So perhaps we should make a distinction if negligence is

proven and if negligence is not proven. If the negligence of the defendant

is not proven as Edgar contends, then the defense of fortuitous event istenable. However, if negligence is proven to be present then the defense

or fortuitous event is not tenable here and the defendant will be liable.

(2) There is no need of prior conviction in either case.

1207 Question No. 9 (1988 Bar Examination)

(c)A, B, and C borrowed P12,000 from X. This debt is evidenced by a promissory note

wherein the three bound themselves to pay the debt jointly and severally. However

according to the note, A can be compelled to pay only on June 15, 1962, B can be

compelled to pay only on June 15, 1964, while C can be compelled to pay only on June15, 1966. On June 15, 1962, X made a demand upon A to pay the entire indebtedness but

the latter aid only P4, 000.00. Subsequently, because of As refusal to pay the balance, X

brought an action against him for collection of the amount. Will such an action prosper?Reasons.

Answer:

(c) For the present, the action will not proper. It is of course that the

obligation here is solidary and that is solidary character is not destroyed by

the fact that the debtors are bound by different periods for payment is


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expressly provided for in Art. 1211 of the Civil Code. However, in

solidary obligations of this type, the right of the creditor is limited to the

recovery of the amount owed by the debtor whose obligations has alreadymatured, leaving in suspense his right to recover the shares corresponding

to the debtors whose obligations have not yet matured. This restriction

upon the creditors right does not destroy the solidary character of theobligations, because ultimately, he can still compel one and the same

debtor, if that is his wish, to pay the entire obligation. Therefore, in the

instant case, X shall have to wait for June 15, 1964, when Cs obligationshall have also matured. On June 15, 1966, he can collect P4, 000.00 from

either A or B. On June 15, 1966 he can again collect another P4, 000.00

from either A or B or C. (See Ynchausti vs. Yulo, 34 Phil. 978.)

Suggested Alternative Answer to :No.9 (c)

(d) It now being 1988, the action can no longer prosper because it has already

prescribed. Actions upon written contracts prescribe in 10 years.

1989 Bar Examination

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