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Article 1225

For the purpose of the preceding articles, obligation to give definite things and those which are not susceptible of partial performance shall be deemed to be indivisible.

When the obligation has for its object the execution of a certain number of days of work, the accomplishment of work by metrical units, or analogous things which by their nature are susceptible of partial performance, it shall be divisible.

However, even though the object or service may be physically divisible, an obligation is indivisible if so provided by law or intended by the parties.

In obligations not to do, divisibility or indivisibility shall be determined by the character of the prestation in each particular case. (1151a)

Effect of illegality of a part of a contract

Divisible Contract –  if the contract is divisible and a part of it is illegal, the illegal part of the contract is considered void and not enforceable.

Indivisible Contract – if the contract is indivisible and a part of it is illegal, the entire contract is considered void and not enforceable.

Effect of partial performance of an indivisible contract

When an obligation is indivisible, it is not susceptible to partial performance, therefore, a debtors who only does a part of the obligation cannot revocer payment for the partial work that he has done because for an indivisible contract, partial performance is equivalent to non-performance.

Angel Jose Warehousing Co., Inc. vs. Chelda Enterprises (23 SCRA 119)

March 25, 2016

G.R. No. L-25704             April 24, 1968

ANGEL JOSE WAREHOUSING CO., INC., plaintiff-appellee, vs. CHELDA ENTERPRISES and DAVID SYJUECO, defendants-appellants.

Luis A. Guerrero for plaintiff-appellee.Burgos and Sarte for defendants-appellants.

BENGZON, J.P., J.:

FACTS

Plaintiff corporation filed suit in the Court of First Instance of Manila on May 29, 1964 against the partnership Chelda Enterprises and David Syjueco, its capitalist partner, for recovery of alleged unpaid loans in the total amount of P20,880.00, with legal interest from the filing of the complaint, plus attorney’s fees of P5,000.00. Alleging that post dated checks issued by defendants to pay said account were dishonored, that defendants’ industrial partner, Chellaram I. Mohinani, had left the country, and that defendants have removed or disposed of their property, or are about to do so, with intent to defraud their creditors, preliminary attachment was also sought.

Answering, defendants averred that they obtained four loans from plaintiff in the total amount of P26,500.00, of which P5,620.00 had been paid, leaving a balance of P20,880.00; that plaintiff charged and deducted from the loan usurious interests thereon, at rates of 2% and 2.5% per month, and, consequently, plaintiff has no cause of action against defendants and should not be permitted to recover under the law. A counterclaim for P2,000.00 attorney’s fees was interposed.

Great reliance is made by appellants on Art. 1411 of the New Civil Code which states:

Art. 1411. When the nullity proceeds from the illegality of the cause or object of the contract, and the act constitutes criminal offense, both parties being in pari delicto, they shall have no action against each other, and both shall be prosecuted. Moreover, the provisions of the Penal Code relative to the disposal of effects or instruments of a crime shall be applicable to the things or the price of the contract.

This rule shall be applicable when only one of the parties is guilty; but the innocent one may claim what he has given, and shall not be bound to comply with his promise.

Since, according to the appellants, a usurious loan is void due to illegality of cause or object, the rule of pari delicto expressed in Article 1411, supra, applies, so that neither party can bring action against each other. Said rule, however, appellants add, is modified as to the borrower, by express provision of the law (Art. 1413, New Civil Code), allowing the borrower to recover interest paid in excess of the interest allowed by the Usury Law. As to the lender, no exception is made to the rule; hence, he cannot recover on the contract. So — they continue — the New Civil Code provisions must be upheld as against the Usury Law, under which a loan with usurious interest is not totally void, because of Article 1961 of the New Civil Code, that: “Usurious contracts shall be governed by the Usury Law and other special laws, so far as they are not inconsistent with his promise.

ISSUE

Whether or not the illegal terms as to payment of interest likewise renders a nullity the legal terms as to payments of the principal debt.

HELD

Article 1420 of the New Civil Code provides in this regard: “In case of a divisible contract, if the illegal terms can be separated from the legal ones, the latter may be enforced.”

In simple loan with stipulation of usurious interest, the prestation of the debtor to pay the principal debt, which is the cause of the contract (Article 1350, Civil Code), is not illegal. 

The illegality lies only as to the prestation to pay the stipulated interest; hence, being separable, the latter only should be deemed void, since it is the only one that is illegal.

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VOID OR INEXISTENT CONTRACTS

Article 1417

When the price of any article or commodity is determined by statute, or by authority or law, any person paying any amount in excess of the maximum price allowed may recover such excess. (n)

Discussion:

Article 1417 applies to articles or commodities over which there is a law or regulation issued by competent authority fixing their maximum price.  This law aims to prevent profiteering which is inimical to the interest of the people, therefore, any excess payment made must be recoverable.

Illustration:

A regulation was promulgated by the government fixing the maximum price of a particular brand of meat at P120.00 per kilo.  If the buyer paid P250.00 per kilo, whether or not he knew the regulation, must be allowed to recover the P130.00 excess from his payment.

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CHAPTER 6: Rescissible contracts

Article 1385

Rescission creates the obligation to return the things which were the object of the contract, together with their fruits, and the price with its interest; consequently, it can be carried out only when he who demands rescission can return whatever he may be obliged to restore.

Neither shall rescission take place when the things which are the object of the contract are legally in the possession of third persons who did not act in bad faith.

In this case, indemnity for damages may be demanded from the person causing the loss. (1295)

G.R. No. L-2277 December 29, 1950

MONICO CONCEPCION, plaintiff-appellant,

vs.

PACIENCIA STA. ANA, defendant-appellee.

Yap and Garcia for appellant.Tomas Yumol for appellee.

FERIA, J.:

FACTS

An action was instituted by Monico Concepcion vs. Paciencia Sta. Ana to annul the sale made by the late Perpetua Concepcion, sister of the plaintiff, of three parcels of land with the improvements thereon to the defendant. The complaint alleges that Perpetua Concepcion, in connivance with the defendant and with intent to defraud the plaintiff, sold and conveyed three parcels of land for a false and fictitious consideration to the defendant, who secured transfer certificates of title of said lands issued under her name; and that the defendant has been in possession of the properties sold since the death of Perpetua Concepcion, thereby causing damages to the plaintiff in the amount of not less than two hundred (P200) pesos.

ISSUE

Whether or not the Plaintiff as heir of the deceased contracting party can bring action to annul the contract of sale under consideration

HELD

NO. Under the law, action to annul a contract entered into with all the requisites mentioned in article 1261 wherever they are tainted with the vice which invalidate them in accordance with law, may be brought , not only by any person principally bound or who made them, but also By his heir to whom the right and obligation arising from the contract are transmitted. Hence, if no such rights, actions or obligations have been transmitted to the heir, the latter cannot bring an action to annul the contract in representation of the contracting party who made it.

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Chapter 2: Essential requisites of Contracts

Article 1321

The person making the offer may fix the time, place, and manner of acceptance, all of which must be complied with. (n)

Discussion:

The acceptance must be made known to the offeror before the lapse of the fixed period.  If the acceptance was made after the fixed period, it is not a legal acceptance anymore.  What happens then is that it becomes an offer (made by the previous offeree) which may or may not be accepted by the original offeror (which becomes the offeree).

In terms of the manner of acceptance, the offeror may require that the acceptance be done by letter, personal communication, or through a representative.

Acceptance which was not made in the manner fixed by the offeror constitutes a counter-proposal which extinguishes the offer and may not be accepted by the original offeror.

The offeror is the party who makes the offer.

The offeree is the person who either accepts or does not accept the offer

Example:

ALVIN the offeror offers 4 boxes of perfume to MARIKIT the offeree. That ALVIN gives MARIKIT a one day to accept or to reject the said offer. After one day ALVIN did not hear from MARIKIT about the offer he made. ALVIN is now free to make the offer to somebody else.

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Section 3: Cause of Contracts

Article 1353.

The statement of a false cause in contracts shall render them void, if it should not be proved that they were founded upon another cause which is true and lawful.

EFFECT OF FALSITY OF CAUSE

By falsity of cause is meant that the contract states a valid consideration but such statement is not true. A false cause may be erroneous or simulated. The first always produces the in existence of a contract. If the cause is false, the contract is rendered void because the same actually does not exist. The second does not always produce this effect, because it may happen that the hidden but true cause is sufficient to support the contract. If the parties can show that there is another cause and that said cause is true and lawful, then the parties shall be bound by their true agreement.

Sandra sells to Ben a parcel of land. In the deed of sale, P100,000.00 is stated as the price of the land. If this statement is false, then there is no contract of sale.

However, if Ben can prove that the contract is founded upon another consideration, as when Ben has exchanged his car for the land, then the contract of barter or exchange (not sale) shall be valid. In this case, the statement of the price is simulated because it is wilfully made. Otherwise stated, there is, in fact, a real consideration but the same is not the one stated in the contract.

G.R. No. L-2277 December 29, 1950

MONICO CONCEPCION, plaintiff-appellant, vs.

PACIENCIA STA. ANA, defendant-appellee.

Yap and Garcia for appellant.Tomas Yumol for appellee.

FERIA, J.:

FACTS

An action was instituted by Monico Concepcion vs. Paciencia Sta. Ana to annul the sale made by the late Perpetua Concepcion, sister of the plaintiff, of three parcels of land with the improvements thereon to the defendant. The complaint alleges that Perpetua Concepcion, in connivance with the defendant and with intent to defraud the plaintiff, sold and conveyed three parcels of land for a false and fictitious consideration to the defendant, who secured transfer certificates of title of said lands issued under her name; and that the defendant has been in possession of the properties sold since the death of Perpetua Concepcion, thereby causing damages to the plaintiff in the amount of not less than two hundred (P200) pesos.

ISSUE

Whether or not the Plaintiff as heir of the deceased contracting party can bring action to annul the contract of sale under consideration

HELD

NO. Under the law, action to annul a contract entered into with all the requisites mentioned in article 1261 wherever they are tainted with the vice which invalidate them in accordance with law, may be brought , not only by any person principally bound or who made them, but also By his heir to whom the right and obligation arising from the contract are transmitted. Hence, if no such rights, actions or obligations have been transmitted to the heir, the latter cannot bring an action to annul the contract in representation of the contracting party who made it.

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SECTION 5: COMPENSATION

ARTICLE 1289. 

If a person should have against him several debts which are susceptible of compensation, the rules on the application of payments shall apply to the order of the compensation. (1201)

Rules on application of payments applicable to order of compensation.

Compensation is similar to payment. If a debtor has various debts which are susceptible of compensation, he must inform the creditor which of them shall be the object of compensation. In case he fails to do so, then the compensation shall be applied to the most onerous obligation. (Arts.1252, 1254.)

EXAMPLE:

ALVIN is indebted to MARIKIT in the amount of:

P1,000.00 without interest due today;

P1,000.00 with interest of 12% due to also today; and

P1,000.00 with interest of 10% due yesterday.

MARIKIT owes ALVIN P1,000.00 due today.

For purposes of the application of payment, ALVIN is the debtor. He must specify to MARIKIT which of the three debts should be compensated. If he fails to inform MARIKIT, then the latter should apply the compensation to the second obligation of ALVIN, namely, the obligation bearing the 12% interest because it is the most onerous obligation.

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Section 3: Cause of Contracts

Article 1353.

The statement of a false cause in contracts shall render them void, if it should not be proved that they were founded upon another cause which is true and lawful.

EFFECT OF FALSITY OF CAUSE

By falsity of cause is meant that the contract states a valid consideration but such statement is not true. A false cause may be erroneous or simulated. The first always produces the in existence of a contract. If the cause is false, the contract is rendered void because the same actually does not exist. The second does not always produce this effect, because it may happen that the hidden but true cause is sufficient to support the contract. If the parties can show that there is another cause and that said cause is true and lawful, then the parties shall be bound by their true agreement.

Sandra sells to Ben a parcel of land. In the deed of sale, P100,000.00 is stated as the price of the land. If this statement is false, then there is no contract of sale.

However, if Ben can prove that the contract is founded upon another consideration, as when Ben has exchanged his car for the land, then the contract of barter or exchange (not sale) shall be valid. In this case, the statement of the price is simulated because it is wilfully made. Otherwise stated, there is, in fact, a real consideration but the same is not the one stated in the contract.

G.R. No. L-2277 December 29, 1950

MONICO CONCEPCION, plaintiff-appellant, vs.

PACIENCIA STA. ANA, defendant-appellee.

Yap and Garcia for appellant.Tomas Yumol for appellee.

FERIA, J.:

FACTS

An action was instituted by Monico Concepcion vs. Paciencia Sta. Ana to annul the sale made by the late Perpetua Concepcion, sister of the plaintiff, of three parcels of land with the improvements thereon to the defendant. The complaint alleges that Perpetua Concepcion, in connivance with the defendant and with intent to defraud the plaintiff, sold and conveyed three parcels of land for a false and fictitious consideration to the defendant, who secured transfer certificates of title of said lands issued under her name; and that the defendant has been in possession of the properties sold since the death of Perpetua Concepcion, thereby causing damages to the plaintiff in the amount of not less than two hundred (P200) pesos.

ISSUE

Whether or not the Plaintiff as heir of the deceased contracting party can bring action to annul the contract of sale under consideration

HELD

NO. Under the law, action to annul a contract entered into with all the requisites mentioned in article 1261 wherever they are tainted with the vice which invalidate them in accordance with law, may be brought , not only by any person principally bound or who made them, but also By his heir to whom the right and obligation arising from the contract are transmitted. Hence, if no such rights, actions or obligations have been transmitted to the heir, the latter cannot bring an action to annul the contract in representation of the contracting party who made it.

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Tender of Payment and Consignation

ARTICLE 1257

In order that the consignation of the thing due may release the obligor, it must first be announced to the persons interested in the fulfillment of the obligation.

The consignation shall be ineffectual if it is not made strictly in consonance with the provisions which regulate payment. (1177) 

Stage that three possible situations may arise in Article 1257

The creditor may accept the thing or amount deposited. In such a case, the question of payment is settled altogether.

The creditor may refuse to accept the thing or amount deposited. In such as case, the debtor shall then bring an action against him in order to compel him to accept said thing or amount. In order that such action shall prosper, all of the requisites of a valid and effective consignation must be proved.

The creditor may neither accept nor impugn the consignation because he is not interested, or he is not known, or he is absent.

IMPUGN – MEANS TO THROW DOUBT OR QUESTION THE TRUTH OR VALIDITY

Example for Art 1257

Pedro the lessor of the apartment and Juan is the lessee Juan announced to Pedro that he would like to pay his due thru consignation, so the consignation is accepted by Pedro.

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OBLIGATION WITH A PERIOD

ARTICLE 1193

Obligations for whose fulfillment a day certain has been fixed, shall be demandable only when that day comes.

Obligations with a resolutory period take effect at once, but terminate upon arrival of the day certain.

A day certain is understood to be that which must necessarily come, although it may not be known when.

If the uncertainty consists in whether the day will come or not, the obligation is conditional, and it shall be regulated by the rules of the preceding Section. (1125a)

G.R. No. L-6648             July 25, 1955

VICTORIAS PLANTERS ASSOCIATION, INC., NORTH NEGROS PLANTERS ASSOCIATION, INC., FERNANDO GONZAGA, JOSE GASTON and CESAR L. LOPEZ, on their own behalf and on behalf of other sugar cane planters in Manapla, Cadiz and Victorias Districts, petitioners-appellees,

vs.

VICTORIAS MILLING CO., INC., respondent-appellant.

Ross, Selph, Carrascoso and Janda for appellant.

Tañada, Pelaez and Teehankee for appellees.

PADILLA, J.:           

FACTS:

Sometime around 1918, the petitioners Victorias Planters Association, Inc. and North Negros Planters Association, Inc. and the respondent Victorias Milling Co., Inc entered into a milling contract whereby they stipulated a 30-year period within which the sugarcane produced by the petitioner would be milled by the respondent.

The parties also stipulated that in the event of force majeure, the contract shall be deemed suspended during this period. During the Japanese occupation, the petitioners failed to deliver the sugar cane for four years. Added into those years was another two years after liberation when the mill was being rebuilt.

When both parties knew that their contract ended, petitioners assumed that they wouldn’t have any problem. On the other hand, defendant felt that petitioners, having failed to deliver for six years, should add another six years to fulfill their obligation, thus the case roused.

ISSUE:

Can the petitioners be compelled to deliver sugarcane for six more years after the expiration of the 30-year period to make up for what they failed to deliver to the respondent?

HELD:

No. Fortuitous event relieves the obligor from fulfilling the obligation. The stipulation in the contract that in the event of force majeure the contract shall be deemed suspended during the said period does not mean that the happening of any of those events stops the running of the period agreed upon. It only relieves the parties from the fulfillment of their respective obligations during that time the petitioner from delivering the sugar cane and the respondent central from milling. In order that the respondent may be entitled to demand from the petitioner the fulfillment of their part in the contracts, the latter must have been able to perform it but failed or refused to do so and not when they were prevented by force majeure such as war. To require the petitioners to deliver the sugar cane which they failed to deliver during the six years is to demand from them the fulfillment of an obligation, which was impossible of performance during the time it became due. Nemo tenetur ed impossibilia. The performance of what the law has written off cannot be demanded and required. The prayer that the petitioners be compelled to deliver sugar cannot for six years more to make up for what they failed to deliver, the fulfillment of which was impossible, of granted, would in effect be an extension of the terms of the contracts entered into by and between the parties.

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ARTICLE 1161

Civil obligations arising from criminal offenses shall be governed by penal laws, subject to the provisions of Article 2177, and of the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of the Book, regulating damages.

Civil Obligations Arising from Crimes

This provision refers to civil obligations arising from crimes. Under the law “every person criminally liable for a felony is also civilly liable”. The civil liability arising out of the commission of crime includes:

(1) restitution - the restoration of something lost or stolen to its proper owner.

Examples of restitution might include a shoplifter who is ordered to repay a store owner for the cost of a stolen item, or an assailant who must pay for their victim's medical expenses after a violent assault.

(2) reparation of damage caused - Reparation refers to the process and result of remedying the damage or harm caused by an unlawful act. The purpose of reparation is generally understood to reestablish the situation that existed before the harm occurred.

(3) indemnification of consequential damages.

Commonly, consequential damages include property damage, personal injury, attorneys' fee, lost profits, loss of use, liability of buyer to customers, loss of goodwill, interest on money withheld by customers, and damages related to third party claims.

Example

Mark Stephen is found guilty by the court of theft of colored television belonging to Jannie P.  Aside from sentencing him imprisonment, the court also orders Mark Stephen to return the colored television (restitution), or if he has disposed of the same, to pay its value (reparation) and other damages (indemnification) suffering by Jannie P.

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CONJUGAL DOMICILE

ARTICLE 1,60 & 68 OF THE FAMILY CODE

G.R. No. 11263             November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant, vs. JOSE CAMPOS RUEDA, defendant-appellee.

FACTS:  

Eloisa Goitia De La Camara and Jose Campos Rueda were legally married in the City of Manila on Jan. 7, 1915. They established their residence at 115 Calle San Marcelino, where they lived together for about a month, when the plaintiff returned to the home of her parents. It was alleged that respondent demanded her to perform unchaste and lascivious acts on his genital organs. The plaintiff spurned the obscene demands of the defendant and refused to perform any act other than legal and valid cohabitation. Since Goitia kept on refusing, defendant maltreated her by word and deed, inflicting injuries upon her lips, face and different parts of her body; and that, as Goitia was unable by any means to induce her husband to desist from his repugnant desires and cease from maltreating her, she was obliged to leave the conjugal abode and take refuge in the home of her parents.

Goitia filed a complaint against defendant for support outside the conjugal home. The CFI ruled in favor of defendant Rueda and held that the defendant cannot be compelled to support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a divorce or separation from the defendant. The plaintiff appealed.

ISSUE:  

Whether Goitia can compel her husband to support her outside the conjugal home.

RULING:

YES. The obligation on the part of the husband to support his wife is created merely in the act of marriage. Article 149 of the Civil Code provides that the person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed or by receiving and maintaining in his own home the person having the right to the same. However, this option granted by law is not absolute. The law does not permit the husband to evade or terminate his obligation to support his wife if the wife is driven away from the conjugal home because of his wrongful acts.

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CONJUGAL PROPERTY

ARTICLE 124 OF THE FAMILY CODE

MELANIA A. ROXAS, Petitioner, v. THE HON. COURT OF APPEALS and ANTONIO M. CAYETANO, Respondents.

Agustin V. Velante for Petitioner.

Manuel M. Katapang for Private Respondent.

[G.R. No. 92245. June 26, 1991.]

Facts:

Petitioner Melanie Roxas, married to Antonio Roxas but they are living separately.

The petitioner discovered that her husband entered into a contract lease with the respondent Antonio M. Cayetano, involving a portion of their conjugal property without her knowledge and consent.

The petitioner filed a case before the RTC praying for the annulment of the contract of lease between the respondent and her husband.

The respondent moved to dismiss the complaint on the sole ground that the complaint states no cause of action.

The RTC Judge resolved said Motion by dismissing petitioner complaint.

Issue:

Whether or not, a husband, as the administrator of the conjugal partnership, may legally enter into a contract of lease involving conjugal real property without the knowledge and consent of the wife.

Ruling:

No, Although the husband is the administrator of the conjugal partnership, however, administration does not include acts of ownership. The husband can administer the conjugal assets unhampered; he cannot alienate or encumber the conjugal realty. Thus, under Art. 166 of NCC “unless the wife has been declared a non-compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership the wife’s consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same.” This rule prevents abuse on the part of the husband, and guarantees the rights of the wife, who is partly responsible for the acquisition of the property, particularly the real property. Contracts entered into by the husband in violation of this prohibition are voidable and subject to annulment at the instance of the aggrieved wife. (Art. 173 of the Civil Code).

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PETITION FOR CORRECTION

ARTICLE 412 OF THE FAMILY CODE

REPUBLIC OF THE PHILIPPINES, Petitioner,vs.MERLYN MERCADERA through her Attorney-in-Fact, EVELYN M. OGA, Respondent.

G.R. No. 186027               December 8, 2010

FACTS:

On June 6, 2005, Merlyn Mercadera (Mercadera), represented by her sister and duly constituted Attorney-in-Fact, Evelyn M. Oga (Oga), sought the correction of her given name as it appeared in her Certificate of Live Birth – from Marilyn L. Mercadera to Merlyn L. Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to Republic Act No. 9048 (R.A. No. 9048).

The Office of the Local Civil Registrar of Dipolog City, however, refused to effect the correction unless a court order was obtained “because the Civil Registrar therein is not yet equipped with a permanent appointment before he can validly act on petitions for corrections filed before their office as mandated by Republic Act 9048.”

Mercadera was then constrained to file a Petition For Correction of Some Entries as Appearing in the Certificate of Live Birth under Rule 108 before the Regional Trial Court of Dipolog City (RTC). The following facts were gathered from documentary evidence and the oral testimony of Oga, as reported by the lower court:

Petitioner Merlyn M. Mercadera was born on August 19, 1970 at Dipolog City. She is the daughter of spouses Tirso U. Mercadera and Norma C. Lacquiao. The fact of her birth was reported to the Office of the City Civil Registrar of Dipolog City on September 8,  1970. It was recorded on page 68, book no. 9, in the Registry of Births of said civil registry. In the certification of birth dated May 9, 2005 issued by the same registry, her given name appears as Marilyn and not Merlyn.

On September 29, 1979, petitioner was baptized according to the rites and ceremonies of the United Church of Christ in the Philippines. As reflected in her certificate of baptism issued by said church, she was baptized by the name Merlyn L. Mercadera.

In her elementary diploma issued by the Paaralang Sentral ng Estaka, Dipolog City; her high school diploma issued by the Zamboanga del Norte School of Arts and Trades, Dipolog City; and college diploma issued by the Silliman University, Dumaguete City, where she earned the degree of Bachelor of Secondary Education, uniformly show her name as Merlyn L. Mercadera

Presently, she is working in U.P. Mindanao, Buhangin, Davao City. Her certificate of membership issued by the Government Service Insurance System also bears his [sic] complete name as Merlyn Lacquiao Mercadera. When she secured an authenticated copy of her certificate of live birth from the National Statistics Office, she discovered that her given name as registered is Marilyn and not Merlyn; hence, this petition.

In its September 28, 2005 Decision, the RTC granted Mercadera’s petition and directed the Office of the City Civil Registrar of Dipolog City to correct her name appearing in her certificate of live birth, Marilyn Lacquiao Mercadera, to MERLYN Lacquiao Mercadera. The OSG timely interposed an appeal praying for the reversal and setting aside of the RTC decision. It mainly anchored its appeal on the availment of Mercadera of the remedy and procedure under Rule 108.

For the OSG, the correction in the spelling of Mercadera’s given name might seem innocuous enough to grant but “it is in truth a material correction as it would modify or increase substantive rights.” What the lower court actually allowed was a change of Mercadera’s given name, which would have been proper had she filed a petition under Rule 103 and proved any of the grounds therefor. The lower court, “may not substitute one for the other for purposes of expediency.” Further, because Mercadera failed to invoke a specific ground recognized by the Rules, the lower court’s order in effect allowed the change of one’s name in the civil registry without basis.

The Court of Appeals (CA) was not persuaded. In its December 9, 2008 Decision, the appellate court affirmed the questioned RTC Order.

ISSUE:

Whether the GRANTING THE CHANGE IN RESPONDENT’S NAME UNDER RULE 108 is proper

RULING:

In the case at bench, the OSG posits that the conversion from “MARILYN” to “MERLYN” is not a correction of an innocuous error but a material correction tantamount to a change of name which entails a modification or increase in substantive rights. For the OSG, this is a substantial error that requires compliance with the procedure under Rule 103, and not Rule 108.

The “change of name” contemplated under Article 376 and Rule 103 must not be confused with Article 412 and Rule 108. A change of one’s name under Rule 103 can be granted, only on grounds provided by law. In order to justify a request for change of name, there must be a proper and compelling reason for the change and proof that the person requesting will be prejudiced by the use of his official name. To assess the sufficiency of the grounds invoked therefor, there must be adversarial proceedings.

In petitions for correction, only clerical, spelling, typographical and other innocuous errors in the civil registry may be raised. Considering that the enumeration in Section 2, Rule 108 also includes “changes of name,” the correction of a patently misspelled name is covered by Rule 108. Suffice it to say, not all alterations allowed in one’s name are confined under Rule 103. Corrections for clerical errors may be set right under Rule 108.

This rule in “names,” however, does not operate to entirely limit Rule 108 to the correction of clerical errors in civil registry entries by way of a summary proceeding. As explained above, Republic v. Valencia is the authority for allowing substantial errors in other entries like citizenship, civil status, and paternity, to be corrected using Rule 108 provided there is an adversary proceeding. “After all, the role of the Court under Rule 108 is to ascertain the truths about the facts recorded therein.”

A serious scrutiny of this petition reveals a glaring lack of support to the OSG’s assumption that Mercadera intended to change her name under Rule 103. All that the petition propounded are swift arguments on the alleged procedural flaws of Mercadera’s petition before the RTC. In the same vein, no concrete contention was brought up to convince this Court that the dangers sought to be prevented by the adversarial proceedings prescribed in Rule 103 are attendant in this case. Instead, the RTC found the documents presented by Mercadera to have satisfactorily shown that she had been known as MERLYN ever since, discounting the possibility that confusion, or a modification of substantive rights might arise. Truth be told, not a single oppositor appeared to contest the petition despite full compliance with the publication requirement.

Thus, the petition filed by Mercadera before the RTC correctly falls under Rule 108 as it simply sought a correction of a misspelled given name. To correct simply means “to make or set aright; to remove the faults or error from.” To change means “to replace something with something else of the same kind or with something that serves as a substitute.”36 From the allegations in her petition, Mercadera clearly prayed for the lower court “to remove the faults or error” from her registered given name “MARILYN,” and “to make or set aright” the same to conform to the one she grew up to, “MERLYN.” It does not take a complex assessment of said petition to learn of its intention to simply correct the clerical error in spelling. Mercadera even attempted to avail of the remedy allowed by R.A. No. 9048 but she unfortunately failed to enjoy the expediency which the law provides and was constrained to take court action to obtain relief.

In this case, the use of the letter “a” for the letter “e,” and the deletion of the letter “i,” so that what appears as “Marilyn” would read as “Merlyn” is patently a rectification of a name that is clearly misspelled. The similarity between “Marilyn” and “Merlyn” may well be the object of a mix- up that blemished Mercadera’s Certificate of Live Birth until her adulthood, thus, her interest to correct the same.

The CA did not allow Mercadera the change of her name. What it did allow was the correction of her misspelled given name which she had been using ever since she could remember.

Besides, granting that Rule 103 applies to this case and that compliance with the procedural requirements under Rule 108 falls short of what is mandated, it still cannot be denied that Mercadera complied with the requirement for an adversarial proceeding before the lower court. The publication and posting of the notice of hearing in a newspaper of general circulation and the notices sent to the OSG and the Local Civil Registry are sufficient indicia of an adverse proceeding. The fact that no one opposed the petition, including the OSG, did not deprive the court of its jurisdiction to hear the same and did not make the proceeding less adversarial in nature. Considering that the OSG did not oppose the petition and the motion to present its evidence ex parte when it had the opportunity to do so, it cannot now complain that the proceedings in the lower court were procedurally defective. Indeed, it has become unnecessary to further discuss the reasons why the CA correctly affirmed the findings of the lower court especially in admitting and according probative value to the evidence presented by Mercadera. 

[jdnoriel]

WRIT OF PROHIBITION

ARTICLE 31 OF THE FAMILY CODE

LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL SANGGALANG, Petitioners,

v. GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate General's Office (JAGO), Respondents.

[G.R. NO. 164007 : August 10, 2006]

FACTS:

On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP, with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP - mostly from the elite units of the Army's Scout Rangers and the Navy's Special Warfare Group - entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security guards and planted explosive devices around the building.

In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually, they returned to their barracks.

The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered by the Articles of War are service-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable by the court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction of the court martial.

Issue:

Whether or not the petitioners are entitled to the writ of prohibition

Ruling:

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances.

Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d etat), other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected, then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or offenses be tried by the proper civil court.

[jdnoriel]

Responsibility for fault or negligence

ARTICLE 221 OF THE FAMILY CODE

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano, deceased, plaintiffs-appellants,

vs.

REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said minor, defendants-appellees.

FACTS:

Reginald Hill was accused of killing Agapito Elcano. Hill was subsequently acquitted on the ground that his act was not considered criminal because of “lack of intent to kill, coupled with mistake.”

Pedro Elcano, father of the victim Agapito, filed a case for recovery of damages instead against Reginald and his father, Marvin Hill, before the Court of First Instance of Quezon City.

The Hills filed a Motion to Dismiss, alleging, among others, that the action is barred by a prior judgment which is now final and or in res-adjudicata. The CFI granted said motion. Hence, the instant petition.

ISSUE:

Whether the action for recovery of damages by the Elcanos is barred by the acquittal of Reginald Hill in the criminal case filed against him. -- NO.

RULING:

The acquittal of Reginald Hill does not extinguish his liability for quasi-delict, and the acquittal is not a bar for civil action for damages.

Under Art 2177, acquittal from an accusation of criminal negligence, shall not be a bar to a subsequent civil action, nor for civil liability arising from criminal negligence, but for damages due to a quasi-delict or culpa aquiliana.

Art 2177 means that a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary.

Culpa acquiliana includes voluntary and negligent acts which may or may not be punished by law.

In the case of Barredo vs. Garcia, the Supreme Court held that negligent act can result in civil liability under the Penal Code and the Civil Code. In that case the Court said that an act of negligence may be a proper subject matter either of a criminal action with its consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault or negligence under the Civil Code (1902).

[jdnoriel]

CUSTODY OF THE CHILD

ARTICLE 213 OF THE FAMILY CODE

Facts:

Before us are two consolidated petitions.  The first is a Petition for Review[1] filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002 Decision[2] of the Court of Appeals

(CA) in CA-GR SP No. 70878.  The assailed Decision disposed as follows:

"WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED.  The assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED.  The custody of the child is hereby ordered returned to[Crisanto Rafaelito G. Gualberto V].

"The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioner's] motion to lift the award of custody pendente lite of the child to [respondent]."

The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto V under Rule 65 of the Rules of Court, charging the appellate court with grave abuse of discretion for denying his Motion for Partial Reconsideration of the August 30, 2002

Decision.  The denial was contained in the CA's November 27, 2002 Resolution

[O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial Court of Parañaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for custody pendente... lite of their almost 4-year-old son, minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and his school (Infant Toddler's Discovery Center in Parañaque City) when [she] decided to abandon [Crisanto] sometime in... early February 2002[.] x x x [O]n April 2, 2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a certain Col. Renato Santos, and Ms.

Cherry Batistel, testified before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge awarded custody pendente lite of the child to [Crisanto.]  [T]he Order partly read x x x:

'x x x Crisanto Rafaelito Gualberto V testified.  He stated that [Joycelyn] took their minor child with her to Caminawit, San Jose, Occidental Mindoro.  At that time, the minor was enrolled at B.F. Homes, Parañaque City.  Despite effort[s] exerted by him, he... has failed to see his child.  [Joycelyn] and the child are at present staying with the former's step-father at the latter's [residence] at Caminawit, San Jose, Occidental Mindoro.

'Renato Santos, President of United Security Logistic testified that he was commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano in Cebu City.

'The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the spouses who stated that [the mother] does not care for the child as she very often goes out of the house and on one occasion, she saw [Joycelyn] slapping the child.

[O]n April 16, 2002, the hearing of [Joycelyn's] motion to lift the award of custody pendente lite of the child to [Crisanto] was set but the former did not allegedly present any evidence to support her motion.  However, on May 17, 2002, [the] Judge... allegedly issued the assailed Order reversing her Order of April 3, 2002 and this time awarding custody of the child to [Joycelyn].  [T]he entire text of the Order [is] herein reproduced

Issues:

In GR No. 154994, Petitioner Joycelyn submits these issues for our consideration:

"1.  Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to the father, violated Art. 213 of the Family Code, which mandates that 'no child under seven years of age shall be separated from the mother, unless the court finds... compelling reasons to order otherwise.'

"2.  Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?"[9]

On the other hand, Crisanto raises the following issues:

"A.  Did Respondent Court commit grave abuse of discretion amounting to or in excess of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge 'to consider, hear and resolve the motion to lift award of custody pendente... lite of the child to petitioner and x x x denied the motion for reconsideration thereof in its November 27, 2002 Resolution, considering that: (1) there is no such motion ever, then or now pending, with the court a quo; (2) the November 27, 2002 Resolution is... unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the validity of which has been upheld in the August 30, 2002 Decision of the respondent Court, has become final and executory; and

"B.  Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts, physical and mental condition of the illegally detained Minor Rafaello is now unknown to petitioner and preliminary mandatory injunction with urgent prayer for immediate issuance of... preliminary [injunction], petitioner having a clear and settled right to custody of Minor Rafaello which has been violated and still is being continuously violated by [petitioner Joycelyn], be granted by this Honorable Court?"

Ruling:

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to deprive Joycelyn of custody.  It has indeed been held that under certain circumstances, the mother's immoral conduct may constitute a compelling reason to deprive her of... custody.[50]

But sexual preference or moral laxity alone does not prove parental neglect or incompetence.  Not even the fact that a mother is a prostitute or has been unfaithful to her husband would render her unfit to have custody of her minor child.[51]  To deprive the wife of custody, the husband must clearly establish that her moral lapses have had an adverse effect on the welfare of the child or have distracted the offending spouse from exercising proper parental care.

On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted, because Crisanto's right to custody has not been proven to be "clear and unmistakable."[58]  Unlike an ordinary preliminary injunction, the writ of... preliminary mandatory injunction is more cautiously regarded, since the latter requires the performance of a particular act that tends to go beyond the maintenance of the status quo.[59]  Besides, such an injunction would serve no purpose, now that the... case has been decided on its merits.[60]

WHEREFORE, the Petition in GR No. 154994 is GRANTED.  The assailed Decision of the Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order REINSTATED.  The Petition in GR No. 156254 is

DISMISSED.  Costs against Petitioner Crisanto Rafaelito Gualberto V.