Bar Q and A #35

He would be liable under Art. 2147 (1), because he used the property for an operation which the operator is not accustomed to, and in so doing, he exposed them house to increased risk, namely the operation of a pension house on the second floor and stores on the first floor.

1. Negotiorum gestio existed between Amparo and Armando. She voluntarily took charge of the agency or management of the business or property of her uncle without any power from her uncle whose property was neglected. She is called the gestor negotiorum or officious manager. (Art. 2144, NCC)

2. The following provisions state the rights and obligations of Amparo:

Art. 2145. The officious manager shall perform his duties with all the diligence of a good father of a family, and pay the damages which through his fault or negligence may be suffered by the owner of the property or business under management.
The courts may, however, increase or moderate the indemnity according to the circumstances of each case.

Art. 2146. If the officious manager delegates to another person all or some of his duties, he shall be liable for the acts of the delegate, without prejudice to the direct obligation of the latter toward the owner of the business.

The responsibility of two or more officious managers shall be solidary, unless management was assumed to save the thing or business from imminent danger.

Art. 2147. The officious manager shall be liable for any fortuitous event:

1. If he undertakes risky operations which the owner was not accustomed to embark upon;
2. If he has preferred his own interest to that of the owner;
3. If he fails to return the property or business after demand by the owner;
4. If he assumed the management in bad faith.

Art. 2148. Except when the management was assumed to save the property or business from imminent danger, the officious manager shall be liable for fortuitous events: (1) If he is manifestly unfit to carry on the management; (2) If by his intervention he prevented a more competent person from taking up the management.

Art. 2149. The ratification of the management
by the owner of the business produces the effects of an express agency, even if the business may not have been successful.

Art. 2150. Although the officious management may not have been expressly ratified, the owner of the property or business who enjoys the advantages of the same shall be liable for obligations incurred in his interest, and shall reimburse the officious manager for the necessary and useful expenses and for the damages which the latter may have suffered in the performance of his duties. The same obligation shall be incumbent upon him when the management had for its purpose the prevention of an imminent and manifest loss, although no benefit may have been derived.

Art. 2151. Even though the owner did not derive any benefit and there has been no imminent and manifest danger to the property or business, the owner is liable as under the first paragraph of thepreceding article, provided:

1. The officious manager has acted in good faith, and
2. The property or business is intact, ready to be returned to the owner.

Art. 2152. The officious manager is personally liable for contracts which he has entered into with third persons, even though he acted in the name of the owner, and there shall be no right of action between the owner and third persons. These provisions shall not apply:

1. If the owner has expressly or tacitly ratified the management,or
2. When the contract refers to things pertaining to the owner of the business.

There was error in the amount of change given by RRA. This is a case of solutio indebiti in that DPO received something that is not due him. He has the obligation to return the P100.00; otherwise, he will unjustly enrich himself at the expense of RRA. (Art. 2154)

DPO has the duty to return to RRA the excess P100 as trustee under Article 1456 of the Civil Code which provides:  If property is acquired through mistake or fraud, the person obtaining it is, by force of law,  considered a trustee of an implied trust for the benefit of the person from whom the property comes. There is, in this case, an implied or constructive trust in favor of RRA.

PRESUMPTIVE LEGITIME is not defined in the law. Its definition must have been taken from Act 2710, the Old Divorce Law, which required the delivery to the legitimate  children of “the equivalent of what would have been due to them as their legal portion if said spouse had died intestate immediately after the dissolution of the community of property.” As used in the Family Code, presumptive legitime is understood as the equivalent of the legitimate children’s legitimes assuming that the spouses have died immediately after the dissolution of the community of property.

Presumptive legitime is required to be delivered to the common children of the spouses when the marriage is annulled or declared void ab initio and possibly, when the conjugal partnership or absolute community is dissolved as in the case of legal separation. Failure of the parents to deliver the presumptive legitime will make their subsequent marriage null and void under  Art. 53, FC.

Testator may dispose of by will the free portion of his estate. Since the legitime of JCP is 1/8 of the estate, SGO is 1/4 of the estate and that of HBR and RVC is 1/2 of the hereditary estate under Art. 889 of the Civil Code, the remaining 1/8 of the estate is the free portion which the testator may dispose of by will.

1. A MODAL INSTITUTION is the institution of an heir made for a certain purpose or cause. (Arts. 871 and 882) SUBSTITUTION is the appointment of another heir so that he may enter into the inheritance in default of the heir originality instituted. (Art. 857)

2. In a SIMPLE SUBSTITUTION of heirs, the testator designates one or more persons to substitute the heirs instituted in case such heir or heirs should die before him, or should not wish or should be incapacitated to accept the inheritance. In a FIDEICOMMISSARY SUBSTITUTION, the testator institutes a first heir and charges him to preserve and transmit the whole or part of the inheritance to a second heir. In a simple substitution, only one heir inherits.In a fideicommissary substitution, both the first and second heirs inherit. (Art. 859 and 869)

3. Yes, Betina has a cause of action against Divino. This is a case of a testamentary disposition subject to a mode and the will itself provides for the consequence if the mode is not complied with. To enforce the mode, the will itself gives Betina the right to compel the return of the property to the heirs of Theodore. (Rabadilla v. Conscoluella, G.R. No. 113725, June 29, 2000)

No, the provision imposing the division of the property “habang panahon” is invalid. In Santiago v. Santiago (G.R. No. 179859, August 9, 2010), a similar provision appears in the will. However, Art. 1083 provides that the period of indivision imposed by the testator shall not exceed 20 years. Hence, the provision  leaving the administration of the house and lot to Alex and Rene is valid but the provision “habang buhay” is invalid as to the excess beyond 20 years.

1. When an obligation to preserve and transmit the property to Scarlet was imposed on Ruffa, the testator Raymond intended to create a fideicommissary substitution where Ruffa is the fiduciary and Scarlet is the fideicommissary. Having complied with the requirements of Arts. 863 and 869, the fideicommissary substitution is valid.

2. If Scarlet predeceases Ruffa, the fideicommissary substitution is rendered null or ineffective under Art. 863, the fideicommissary clause is disregarded without prejudice to the validity of the institution of the fiduciary. In such case, Ruffa shall inherit the devise free from the condition.

3. In a fideicommissary substitution, the intention of the testator is to make the second heir his ultimate heir. The right of the second heir is simply postponed by the delivery of the inheritance to the first heir for him to enjoy the usufruct over the inheritance. Hence, when the first heir predeceased the testator, the first heir did not qualify to inherit and the right of the second heir to receive the inheritance will no longer be delayed provided the second heir is qualified to inherit at the time of the testator’s death. In fideicommissary substitution, the first and the second heirs inherit from the testator, hence, both should be qualified to inherit from the testator at the time of his death. In the problem, when Ruffa predeceased Raymond, she did not qualify to receive the inheritance to enjoy its usufruct, hence, the right of Scarlet to receive the inheritance upon the death of the testator will no longer be delayed. However, Scarlet is not qualified to inherit from Raymond because she is barred by Art. 992 of the New Civil Code being an illegitimate child of Raymond’s legitimate father. The devise will therefore be ineffective and the property will be disposed of by intestacy.

1. Yes. Assuming that he is of legal age (Art. 797) and of sound mind at the time of execution of the will (Art. 798), Stevie, a blind person, can make a notarial will, subject to compliance with the “two- reading rule” (Art. 808) and the provisions of Arts. 804 and 806 of the Civil Code.

2. No, Stevie cannot be a witness to a will. Art. 820 of the Civil Code provides that “any person of sound mind and of age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will.

3. Yes. The will must be read to him twice, once by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. (Art. 808)