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ALLAN PAMIS

VI. THE FAMILY CODE

A. Effect and Retroactivity

E.O. 209 as amended by E.O 227, RA 6809 and RA 7160
B. Repeal and Amendment
FC 253
Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles
41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable.

VII. MARRIAGE
A. Concept and Nature
1 Tolentino 217-221
1. Definition
FC 1
Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance
with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.
NCC 52
Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and incidents
are governed by law and not subject to stipulation, except that the marriage settlements may to a certain extent fix
the property relations during the marriage.
Article XV, Sec 2, 1987 Constitution
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the
State.
Article II, Section 12, 14
Section 12.The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government.
Section 14.The State recognizes the role of women in nation-building, and shall ensure the fundamental equality
before the law of women and men.
Article XV
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the
State.
Section 3. The State shall defend:
1. The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;
2. The right of children to assistance, including proper care and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
3. The right of families or family associations to participate in the planning and implementation of policies and
programs that affect them.
Section 4. The family has the duty to care for its elderly members but the State may also do so through just
programs of social security.
2. Nature
FC 1
Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance
with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social
institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except
that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.
Muslim Code (PD 1083), Section 14
Article 14.Nature. Marriage is not only a civil contract but a social institution. Its nature, consequences and incidents
are governed by this Code and the Shari'a and not subject to stipulation, except that the marriage settlements may
to a certain extent fix the property relations of the spouses.
Rule 131, Section 3; NCC 220
Section 3.Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later one is produced;

(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer
of the whole act; otherwise, that things which a person possess, or exercises acts of ownership over, are owned by
him;
(k) That a person in possession of an order on himself for the payment of the money, or the delivery of anything, has
paid the money or delivered the thing accordingly;
(l) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise
of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed upon by it; and in like
manner that all matters within an issue raised in a dispute submitted for arbitration were laid before the arbitrators
and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an endorsement of negotiable instrument was made before the instrument was overdue and at the place
where the instrument is dated;
(u) That a writing is truly dated;
(v) That a letter duly directed and mailed was received in the regular course of the mail;
(w) That after an absence of seven years, it being unknown whether or not the absentee still lives, he is considered
dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession till after an absence of ten
years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened.
The following shall be considered dead for all purposes including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aircraft with is missing, who has not been
heard of for four years since the loss of the vessel or aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has been missing for four
years;
(3) A person who has been in danger of death under other circumstances and whose existence has not
been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse present may contract a
subsequent marriage if he or she has well-founded belief that the absent spouse is already death. In

case of disappearance, where there is a danger of death the circumstances hereinabove provided, an
absence of only two years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute a summary proceedings
as provided in the Family Code and in the rules for declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.
(x) That acquiescence resulted from a belief that the thing acquiesced in was conformable to the law or fact;
(y) That things have happened according to the ordinary course of nature and ordinary nature habits of life;
(z) That persons acting as copartners have entered into a contract of copartneship;
(aa) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of
marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry each other and who live
exclusively with each other as husband and wife without the benefit of marriage or under void marriage, has
been obtained by their joint efforts, work or industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to marry each other and who
have acquire properly through their actual joint contribution of money, property or industry, such
contributions and their corresponding shares including joint deposits of money and evidences of credit are
equal.
(dd) That if the marriage is terminated and the mother contracted another marriage within three hundred
days after such termination of the former marriage, these rules shall govern in the absence of proof to the
contrary:
(1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(2) A child born after one hundred eighty days following the celebration of the subsequent marriage is
considered to have been conceived during such marriage, even though it be born within the three
hundred days after the termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of the nature;

(ff) That the law has been obeyed;

(gg) That a printed or published book, purporting to be printed or published by public authority, was so
printed or published;
(hh) That a printed or published book, purporting contain reports of cases adjudged in tribunals of the country
where the book is published, contains correct reports of such cases;
(ii) That a trustee or other person whose duty it was to convey real property to a particular person has
actually conveyed it to him when such presumption is necessary to perfect the title of such person or his
successor in interest;
(jj) 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.
(kk) That 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, they shall be considered to have died at the same time. (5a)
Art. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts
leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the
community of property during marriage, the authority of parents over their children, and the validity of defense for
any member of the family in case of unlawful aggression.

3. Breach of Promise to Marry

NCC 19-21; NCC 2176
Art. 19. 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.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the
latter for the same.
Art. 21. 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
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.

G.R. No. L-5028

November 26, 1952

FELIPE CABAGUE and GERONIMO CABAGUE, plaintiffs-appellants,

vs.
MATIAS AUXILIO and SOCORRO AUXILIO, defendants-appellees.
BENGZON, J.:
According to the Rules of Court parol evidence is not admissible to prove an agreement made upon the consideration of marriage other than a
mutual promise to marry.1This litigation calls for application of that rule.
In the justice of the peace court of Basud, Camarines Norte, Felipe Cabague and his son Geronimo sued the defendant Matias Auxilio and his
daughter Socorro to recover damages resulting from defendants' refusal to carry out the previously agreed marriage between Socorro and
Geronimo.

The complaint alleged, in short: (a) that defendants promised such marriage to plaintiffs, provided the latter would improve the defendants'
house in Basud and spend for the wedding feast and the needs of the bride; (b) that relying upon such promises plaintiffs made the
improvement and spent P700; and (c) that without cause defendants refused to honor their pledged word.
The defendants moved to dismiss, arguing that the contract was oral, unenforceable under the rule of evidence hereinbefore mentioned. And
the court dismissed the case. On appeal to the Court of First Instance, the plaintiffs reproduced their complaint and defendants reiterated their
motion to dismiss. From an order of dismissal this appeal was perfected in due time and form.
It should be observed preliminarily that, under the former rules of procedure, when the complaint did not state whether the contract sued on
was in writing or not, the statute of frauds could be no ground for demurrer. Under the new Rules "defendant may now present a motion to
dismiss on the ground that the contract was not in writing, even if such fact is not apparent on the face of the complaint. The fact may be
proved by him." (Moran Rules of Court 2d ed. p. 139 Vol. I.)
There is no question here that the transaction was not in writing. The only issue is whether it may be proved in court.
The understanding between the plaintiffs on one side and the defendants on the other, really involves two kinds of agreement. One, the
agreement between Felipe Cabague and the defendants in consideration of the marriage of Socorro and Geronimo. Another, the agreement
between the two lovers, as "a mutual promise to marry". For breach of that mutual promise to marry, Geronimo may sue Socorro for damages.
This is such action, and evidence of such mutual promise is admissible. 2However Felipe Cabague's action may not prosper, because it is to
enforce an agreement in consideration of marriage. Evidently as to Felipe Cabague and Matias Auxilio this action could not be maintained on
the theory of "mutual promise to marry".3 Neither may it be regarded as action by Felipe against Socorro "on a mutual promise to marry."
Consequently, we declare that Geronimo may continue his action against Socorro for such damages as may have resulted from her failure to
carry out their mutual matrimonial promises.
Wherefore this expediente will be returned to the lower court for further proceedings in accordance with this opinion. So ordered.

G.R. No. L-8166

February 8, 1916

JORGE DOMALAGAN, plaintiff-appellee,

vs.
CARLOS BOLIFER, defendant-appellant.
M. Abejuela for appellant.
Troadio Galicano for appellee.

JOHNSON, J.:
This action was commenced in the Court of First Instance of the Province of Misamis, on the 17th of December, 1910. It was not presented to
the Supreme Court until the 11th of January 1916. Its purpose was to recover of the defendant the sum of P516, together with damages
estimated in the sum of P350 and interest, and costs.
In support of his claim the plaintiff alleged that, in the month of November, 1909, he and the defendant entered into a contract by virtue of the
terms of which he was to pay to the defendant the sum of P500 upon the marriage of his son Cipriano Domalagan with the daughter of the
defendant, Bonifacia Bolifer, that later, in the month of August, 1910, he completed his obligation under said contract by paying to the
defendant the said sum of 500, together with the further sum of P16 "as hansel or token of future marriage," that, notwithstanding said
agreement, the said Bonifacio Bolifer, in the month of August, 1910, was joined in lawful wedlock to Laureano Sisi; that immediately upon
learning of the marriage of Bonifacia Bolifer he demanded of the defendant the return of the said sum of P516 together with the interest and
damages; that the damages which he suffered resulted from the fact that he, in order to raise said sum of P500, was obliged to sell certain real
property belonging to him, located in the Province of Bohol, at a great sacrifice.
To the complaint the defendant presented a general denial. He also alleged that the facts stated in the complaint do not constitute a cause of
action. Upon the issue presented the cause was brought on for trial. After hearing the evidence the Honorable Vicente Nepomuceno, judge, in
an extended opinion in which all of the evidence adduced during the trial of the cause is carefully analyzed reached the conclusion "of fact
that plaintiff delivered to defendant the sum of P516 sued for and that Carlos Bolifer and Laureana Loquero received and did not return the
said amount," and for the reason that the evidence did not sufficiently show that the plaintiff had suffered any additional damages, rendered a
judgment in favor of the plaintiff and against the defendant in said sum of P516 together with the interest at the rate of 6 per cent from the
17th of December, 1910, and costs.
From that judgment the defendant appealed to this court and made the following assignments of error:
1. In holding to be proven the fact of the delivery by the plaintiff of the sum of P516 to the defendant, Carlos Bolifer; and
2. In holding to be valid and effective the verbal contract entered into by the plaintiff and the defendant in regard to the delivery of the
money by reason of a prospective marriage.
The first assignment of error presents a question of fact. The lower court found that a large preponderance of the evidence showed that the
plaintiff had delivered to the defendant the sum of P516 in substantially the manner alleged in the complaint. Taking into consideration that
the lower court saw and heard the witnesses, together with the further fact that there is an abundance of uncontradicted proof supporting the
findings of the lower court, we are not inclined to disturb its judgment for any of the reasons given by the appellant in support of his first
assignment of error.
With reference to the second assignment of error, the appellant calls our attention to the provisions of paragraph 3 of section 335 of the Code
of Procedure in Civil Action. The appellant argues that by virtue of the provisions of said paragraph and by virtue of the fact that the

agreement upon which the plaintiff relies and under which he paid to the defendant the sum of P516 had not been reduced to writing, he could
therefore not recover. The appellant contends that a contract, such as the one relied upon by the plaintiff, in order to be valid, must be
reduced to writing. We have examined the record in vain to find that the defendant during the trial of the cause objected to any proof or any
part thereof, presented by the plaintiff which showed or tended to show the existence of the alleged contract. That part of said section 335
which the appellant relies upon for relief provides:
In the following cases an agreement hereafter made shall be unenforceable by action unless the same, or some note or memorandum
thereof, be in writing, and subscribed by the party charged, or by his agent; evidence, therefore, of the agreement can not be received
without the writing or secondary evidence of its contents:
1. . . .
2. . . .
3. An agreement made upon the consideration of marriage, other than a mutual promise to marry.
It will be noted, by reference to said section, that "evidence " of the agreement referred to "can not be received without the writing or
secondary evidence of its contents." As was said above all of the "evidence" relating to said "agreement" was admitted without the slightest
objection.
Said section (335) does not render oral contracts invalid. A contract may be valid and yet, by virtue of said section, the parties will be unable
to prove it. Said section provides that the contract shall not be enforced by an action unless the same is evidence by some note or
memorandum. Said section simply provides the method by which the contract mentioned therein may be proved. It does not declare that said
contract are invalid, which have not been reduced to writing, except perhaps those mentioned in paragraph 5 of said section (335). A contract
may be a perfectly valid contract even though it is not clothed with the necessary form. If it is not made in confirmity with said section of
course it cannot be proved, if proper objection is made. But a failure to except to evidence presented in order to prove the contract, because it
does not conform to the statute, is a waiver of the provisions of the law. If the parties to an action, during the trial of the cause, make no
objection to the admissibility of oral evidence to support contracts like the one in question and permit the contract to be proved, by evidence
other than a writing, it will be just as binding upon the parties as if it had been reduced to writing. (Anson on Contracts, p. 75; Conlu vs.
Araneta and Guanko, 15 Phil. Rep., 387; Gallemit vs. Tabiliran, 20 Phil. Rep., 241, 246; Kuenzle and Streiff vs. Joingco, 22 Phil. Rep., 110, 112;
Gomez vs. Salcedo, 26 Phil. Rep., 485, 489.)
For the foregoing reasons we find nothing in the record justifying a reversal or modification of the judgment of the lower court based upon
either assignment of error. Therefore the judgment of the lower court is hereby affirmed, with costs. So ordered.

10

G.R. No. L-14628

September 30, 1960

FRANCISCO HERMOSISIMA, petitioner,

vs.
THE HON. COURT OF APPEALS, ET AL., respondents.
Regino Hermosisima for petitioner.
F.P. Gabriel, Jr. for respondents.
CONCEPCION, J.:
An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals modifying that of the Court of First
Instance of Cebu.
On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris Hermosisima, as natural child and
moral damages for alleged breach of promise. Petitioner admitted the paternity of child and expressed willingness to support the latter, but
denied having ever promised to marry the complainant. Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way
of alimony pendente lite, P50.00 a month, which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court
rendered a decision the dispositive part of which reads:
WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of defendant, and
confirming the order pendente lite, ordering defendant to pay to the said child, through plaintiff, the sum of thirty pesos (P30.00),
payable on or before the fifth day of every month sentencing defendant to pay to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED
PESOS (P4,500.00) for actual and compensatory damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the
further sum of FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant.
On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and compensatory damages and the moral
damages, which were increased to P5,614.25 and P7,000.00, respectively.
The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to marry. The pertinent facts are:
Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga Provincial High School in Cebu, and
petitioner, who was almost ten (10) years younger than she, used to go around together and were regarded as engaged, although he had
made no promise of marriage prior thereto. In 1951, she gave up teaching and became a life insurance underwriter in the City of Cebu, where

11

intimacy developed among her and the petitioner, since one evening in 1953, when after coming from the movies, they had sexual intercourse
in his cabin on board M/V "Escao," to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she
was in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity
and clinic. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which was
commenced on or about October 4, 1954.
Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery of damages for breach to
marry. Article 43 and 44 of said Code provides:
ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall entertain any complaint
by which the enforcement of such promise is sought.
ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the concurrence of the person whose
consent is necessary for the celebration of the marriage, or if the banns have been published, the one who without just cause refuses
to marry shall be obliged to reimburse the other for the expenses which he or she may have incurred by reason of the promised
marriage.
The action for reimbursement of expenses to which the foregoing article refers must be brought within one year, computed from the
day of the refusal to celebrate the marriage.
Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil., 866), that "the action for
breach of promises to marry has no standing in the civil law, apart from the right to recover money or property advanced . . . upon the faith of
such promise". The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem it best, however, to change
the law thereon. We quote from the report of the Code Commission on said Proposed Civil Code:
Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in the Philippines. The
subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said articles but also in other particulars. It is
advisable to furnish legislative solutions to some questions that might arise relative to betrothal. Among the provisions proposed are:
That authorizing the adjudication of moral damages, in case of breach of promise of marriage, and that creating liability for causing a
marriage engagement to be broken.1awphl.nt
Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book I thereof:
Art. 56. A mutual promise to marry may be made expressly or impliedly.
Art. 57. An engagement to be married must be agreed directly by the future spouses.

12

Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by a male between the
ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen years. Without such consent of the parents
or guardian, the engagement to marry cannot be the basis of a civil action for damages in case of breach of the promise.
Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even though approved by
the parent or guardian.
Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction shall not be affected.
Art. 61. No action for specific performance of a mutual promise to marry may be brought.
Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor without the assistance of
his parent or guardian. Should the minor refuse to bring suit, the parent or guardian may institute the action.
Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also compensation for mental
and moral suffering.
Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who cause a marriage
engagement to be broken shall be liable for damages, both material and moral, to the engaged person who is rejected.
Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what he or she has
received from the other as gift on account of the promise of the marriage.
These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the corresponding Senate Committee,
from which we quote:
The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide in the case of De
Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England has shown that no other action lends
itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of the rights of
action in the so-called Balm suit in many of the American States.
See statutes of:
Florida 1945 pp. 1342 1344
Maryland 1945 pp. 1759 1762
Nevada 1943 p. 75
Maine 1941 pp. 140 141
New Hampshire 1941 p. 223

13

California 1939 p. 1245

Massachusetts 1938 p. 326
Indiana 1936 p. 1009
Michigan 1935 p. 201
New York 1935
Pennsylvania p. 450
The Commission perhaps though that it has followed the more progression trend in legislation when it provided for breach of promise to
marry suits. But it is clear that the creation of such causes of action at a time when so many States, in consequence of years of
experience are doing away with them, may well prove to be a step in the wrong direction. (Congressional Record, Vol. IV, No. 79,
Thursday, May 19, 1949, p. 2352.)
The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest intent of our law making body not
to sanction actions for breach of promise to marry, the award of moral damages made by the lower courts is, accordingly, untenable. The
Court of Appeals said award:
Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed by her love for him
finally yielded to his sexual desires in spite of her age and self-control, she being a woman after all, we hold that said defendantappellant is liable for seduction and, therefore, moral damages may be recovered from him under the provision of Article 2219,
paragraph 3, of the new Civil Code.
Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those following the one cited by the
Court of Appeals, and the language used in said paragraph strongly indicates that the "seduction" therein contemplated is the crime punished
as such in Article as such in Article 337 and 338 of the Revised Penal Code, which admittedly does not exist in the present case, we find
ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the
complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent
are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because, the court of first instance
found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a
fruit of their engagement even before they had the benefit of clergy."
The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the support of the child: (2) P4,500,
representing the income that complainant had allegedly failed to earn during her pregnancy and shortly after the birth of the child, as actual
and compensation damages; (3) P5,000, as moral damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second
item the sum of P1,114.25 consisting of P144.20, for hospitalization and medical attendance, in connection with the parturiation, and the
balance representing expenses incurred to support the child and increased the moral damages to P7,000.00.
With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore, in all other respects, without
special pronouncement as to cost in this instance. It is so ordered.

14

G.R. No. L-20089

December 26, 1964

BEATRIZ P. WASSMER, plaintiff-appellee,

vs.
FRANCISCO X. VELEZ, defendant-appellant.

15

Jalandoni & Jamir for defendant-appellant.

Samson S. Alcantara for plaintiff-appellee.
BENGZON, J.P., J.:
The facts that culminated in this case started with dreams and hopes, followed by appropriate planning and serious endeavors, but terminated
in frustration and, what is worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love, decided to get married and set September 4, 1954 as the
big day. On September 2, 1954 Velez left this note for his bride-to-be:
Dear Bet
Will have to postpone wedding My mother opposes it. Am leaving on the Convair today.
Please do not ask too many people about the reason why That would only create a scandal.
Paquing
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY SOON APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from again.
Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff adduced evidence before the clerk of court as
commissioner, and on April 29, 1955, judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual damages; P25,000.00 as
moral and exemplary damages; P2,500.00 as attorney's fees; and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and proceedings and motion for new trial and reconsideration."
Plaintiff moved to strike it cut. But the court, on August 2, 1955, ordered the parties and their attorneys to appear before it on August 23, 1955
"to explore at this stage of the proceedings the possibility of arriving at an amicable settlement." It added that should any of them fail to
appear "the petition for relief and the opposition thereto will be deemed submitted for resolution."

16

On August 23, 1955 defendant failed to appear before court. Instead, on the following day his counsel filed a motion to defer for two weeks the
resolution on defendants petition for relief. The counsel stated that he would confer with defendant in Cagayan de Oro City the latter's
residence on the possibility of an amicable element. The court granted two weeks counted from August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired on September 8, 1955 but that defendant and his
counsel had failed to appear.
Another chance for amicable settlement was given by the court in its order of July 6, 1956 calling the parties and their attorneys to appear on
July 13, 1956. This time. however, defendant's counsel informed the court that chances of settling the case amicably were nil.
On July 20, 1956 the court issued an order denying defendant's aforesaid petition. Defendant has appealed to this Court. In his petition of June
21, 1955 in the court a quo defendant alleged excusable negligence as ground to set aside the judgment by default. Specifically, it was stated
that defendant filed no answer in the belief that an amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud, accident, mistake or excusable negligence, must be duly supported by an affidavit of
merits stating facts constituting a valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached to his petition of
June 21, 1955 stated: "That he has a good and valid defense against plaintiff's cause of action, his failure to marry the plaintiff as scheduled
having been due to fortuitous event and/or circumstances beyond his control." An affidavit of merits like this stating mere conclusions or
opinions instead of facts is not valid. (Cortes vs. Co Bun Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29,
1960.)
Defendant, however, would contend that the affidavit of merits was in fact unnecessary, or a mere surplusage, because the judgment sought
to be set aside was null and void, it having been based on evidence adduced before the clerk of court. In Province of Pangasinan vs. Palisoc, L16519, October 30, 1962, this Court pointed out that the procedure of designating the clerk of court as commissioner to receive evidence is
sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's consent to said procedure, the same did not have to be
obtained for he was declared in default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs. Court of First Instance, L14557, October 30, 1959).
In support of his "motion for new trial and reconsideration," defendant asserts that the judgment is contrary to law. The reason given is that
"there is no provision of the Civil Code authorizing" an action for breach of promise to marry. Indeed, our ruling in Hermosisima vs. Court of
Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is
not an actionable wrong. We pointed out that Congress deliberately eliminated from the draft of the new Civil Code the provisions that would
have it so.
It must not be overlooked, however, that the extent to which acts not contrary to law may be perpetrated with impunity, is not limitless for
Article 21 of said Code provides that "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."

17

The record reveals that on August 23, 1954 plaintiff and defendant applied for a license to contract marriage, which was subsequently issued
(Exhs. A, A-1). Their wedding was set for September 4, 1954. Invitations were printed and distributed to relatives, friends and acquaintances
(Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and other apparel for the important occasion were purchased (Tsn., 7-8). Dresses
for the maid of honor and the flower girl were prepared. A matrimonial bed, with accessories, was bought. Bridal showers were given and gifts
received (Tsn., 6; Exh. E). And then, with but two days before the wedding, defendant, who was then 28 years old,: simply left a note for
plaintiff stating: "Will have to postpone wedding My mother opposes it ... " He enplaned to his home city in Mindanao, and the next day, the
day before the wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never returned and was never heard from
again.
Surely this is not a case of mere breach of promise to marry. As stated, mere breach of promise to marry is not an actionable wrong. But to
formally set a wedding and go through all the above-described preparation and publicity, only to walk out of it when the matrimony is about to
be solemnized, is quite different. This is palpably and unjustifiably contrary to good customs for which defendant must be held answerable in
damages in accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the damages awarded were excessive. No question is raised as to the award of actual
damages. What defendant would really assert hereunder is that the award of moral and exemplary damages, in the amount of P25,000.00,
should be totally eliminated.
Per express provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases mentioned in Article 21 of said
Code. As to exemplary damages, defendant contends that the same could not be adjudged against him because under Article 2232 of the New
Civil Code the condition precedent is that "the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The
argument is devoid of merit as under the above-narrated circumstances of this case defendant clearly acted in a "wanton ... , reckless [and]
oppressive manner." This Court's opinion, however, is that considering the particular circumstances of this case, P15,000.00 as moral and
exemplary damages is deemed to be a reasonable award.
PREMISES CONSIDERED, with the above-indicated modification, the lower court's judgment is hereby affirmed, with costs.

----- Estremos v Ephan missing----

18

G.R. No. L-18630

December 17, 1966

APOLONIO TANJANCO, petitioner,

vs.
HON. COURT OF APPEALS and ARACELI SANTOS, respondents.
P. Carreon and G. O. Veneracion, Jr. for petitioner.
Antonio V. Bonoan for respondents.
REYES, J.B.L., J.:
Appeal from a decision of the Court of Appeals (in its Case No. 27210-R) revoking an order of the Court of First Instance of Rizal (in Civil Case
No. Q-4797) dismissing appellant's action for support and damages.
The essential allegations of the complaint are to the effect that, from December, 1957, the defendant (appellee herein), Apolonio Tanjanco,
courted the plaintiff, Araceli Santos, both being of adult age; that "defendant expressed and professed his undying love and affection for
plaintiff who also in due time reciprocated the tender feelings"; that in consideration of defendant's promise of marriage plaintiff consented
and acceded to defendant's pleas for carnal knowledge; that regularly until December 1959, through his protestations of love and promises of
marriage, defendant succeeded in having carnal access to plaintiff, as a result of which the latter conceived a child; that due to her pregnant
condition, to avoid embarrassment and social humiliation, plaintiff had to resign her job as secretary in IBM Philippines, Inc., where she was
receiving P230.00 a month; that thereby plaintiff became unable to support herself and her baby; that due to defendant's refusal to marry
plaintiff, as promised, the latter suffered mental anguish, besmirched reputation, wounded feelings, moral shock, and social humiliation. The
prayer was for a decree compelling the defendant to recognize the unborn child that plaintiff was bearing; to pay her not less than P430.00 a
month for her support and that of her baby, plus P100,000.00 in moral and exemplary damages, plus P10,000.00 attorney's fees.
Upon defendant's motion to dismiss, the court of first instance dismissed the complaint for failure to state a cause of action.
Plaintiff Santos duly appealed to the Court of Appeals, and the latter ultimately decided the case, holding with the lower court that no cause of
action was shown to compel recognition of a child as yet unborn, nor for its support, but decreed that the complaint did state a cause of action
for damages, premised on Article 21 of the Civil Code of the Philippines, prescribing as follows:

19

ART. 21. 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.
The Court of Appeals, therefore, entered judgment setting aside the dismissal and directing the court of origin to proceed with the case.
Defendant, in turn, appealed to this Court, pleading that actions for breach of a promise to marry are not permissible in this jurisdiction, and
invoking the rulings of this Court in Estopa vs. Piansay, L-14733, September 30, 1960; Hermosisima vs. Court of Appeals, L-14628, January 29,
1962; and De Jesus vs. SyQuia, 58 Phil. 886.
We find this appeal meritorious.
In holding that the complaint stated a cause of action for damages, under Article 21 above mentioned, the Court of Appeals relied upon and
quoted from the memorandum submitted by the Code Commission to the Legislature in 1949 to support the original draft of the Civil Code.
Referring to Article 23 of the draft (now Article 21 of the Code), the Commission stated:
But the Code Commission has gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that there
are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered
material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil Code
the following rule:
"ART. 23. 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."
An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X". A promise of marriage
either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl is
above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the grievous
moral wrong has been committed, and though the girl and her family have suffered incalculable moral damage, she and her parents
cannot bring any action for damages. But under the proposed article, she and her parents would have such a right of action.
The Court of Appeals seems to have overlooked that the example set forth in the Code Commission's memorandum refers to a tort upon a
minor who has been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse, or a breach of a promise of
marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the part of the seducer to which the
woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that
To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction

20

(43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart from the path of virtue by the use of some species of arts,
persuasions and wiles, which are calculated to have and do have that effect, and which result in her ultimately submitting her person to
the sexual embraces of her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a mere proof
of intercourse is insufficient to warrant a recover.
Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of the female, and the defendant merely
affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a recovery in all such cases
would tend to the demoralization of the female sex, and would be a reward for unchastity by which a class of adventuresses would be
swift to profit." (47 Am. Jur. 662)
Bearing these principles in mind, let us examine the complaint. The material allegations there are as follows:
I. That the plaintiff is of legal age, single, and residing at 56 South E. Diliman, Quezon City, while defendant is also of legal age, single
and residing at 525 Padre Faura, Manila, where he may be served with summons;
II. That the plaintiff and the defendant became acquainted with each other sometime in December, 1957 and soon thereafter, the
defendant started visiting and courting the plaintiff;
III. That the defendant's visits were regular and frequent and in due time the defendant expressed and professed his undying love and
affection for the plaintiff who also in due time reciprocated the tender feelings;
IV. That in the course of their engagement, the plaintiff and the defendant as are wont of young people in love had frequent outings and
dates, became very close and intimate to each other and sometime in July, 1958, in consideration of the defendant's promises of
marriage, the plaintiff consented and acceded to the former's earnest and repeated pleas to have carnal knowledge with him;
V. That subsequent thereto and regularly until about July, 1959 except for a short period in December, 1958 when the defendant was
out of the country, the defendant through his protestations of love and promises of marriage succeeded in having carnal knowledge
with the plaintiff;
VI. That as a result of their intimate relationship, the plaintiff started conceiving which was confirmed by a doctor sometime in July,
1959;
VII. That upon being certain of her pregnant condition, the plaintiff informed the defendant and pleaded with him to make good his
promises of marriage, but instead of honoring his promises and righting his wrong, the defendant stopped and refrained from seeing

21

the plaintiff since about July, 1959 has not visited the plaintiff and to all intents and purposes has broken their engagement and his
promises.
Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a woman of
adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is incompatible with the idea of
seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been deceived, had she surrendered exclusively
because of the deceit, artful persuasions and wiles of the defendant, she would not have again yielded to his embraces, much less for one
year, without exacting early fulfillment of the alleged promises of marriage, and would have cut chart all sexual relations upon finding that
defendant did not intend to fulfill his promises. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause
of action being alleged, no error was committed by the Court of First Instance in dismissing the complaint.
Of course, the dismissal must be understood as without prejudice to whatever actions may correspond to the child of the plaintiff against the
defendant-appellant, if any. On that point, this Court makes no pronouncement, since the child's own rights are not here involved.
FOR THE FOREGOING REASONS, the decision of the Court of Appeals is reversed, and that of the Court of First Instance is affirmed. No costs.

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

22

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision 1of the respondent Court of
Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial Court (RTC)
of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or not damages may be recovered for a breach of promise to marry
on the basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a complaint 2for damages
against the petitioner for the alleged violation of their agreement to get married. She alleges in said complaint that: she is twenty-two (22)
years old, single, Filipino and a pretty lass of good moral character and reputation duly respected in her community; petitioner, on the other
hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the
Lyceum Northwestern Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love
on the condition that they would get married; they therefore agreed to get married after the end of the school semester, which was in October
of that year; petitioner then visited the private respondent's parents in Baaga, Bugallon, Pangasinan to secure their approval to the marriage;
sometime in 20 August 1987, the petitioner forced her to live with him in the Lozano Apartments; she was a virgin before she began living with
him; a week before the filing of the complaint, petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as
a result of such maltreatment, she sustained injuries; during a confrontation with a representative of the barangay captain of Guilig a day
before the filing of the complaint, petitioner repudiated their marriage agreement and asked her not to live with him anymore and; the
petitioner is already married to someone living in Bacolod City. Private respondent then prayed for judgment ordering the petitioner to pay her
damages in the amount of not less than P45,000.00, reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and
granting her such other relief and remedies as may be just and equitable. The complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim, 3petitioner admitted only the personal circumstances of the parties as averred in the complaint and denied
the rest of the allegations either for lack of knowledge or information sufficient to form a belief as to the truth thereof or because the true facts
are those alleged as his Special and Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed to be married with
the private respondent; he neither sought the consent and approval of her parents nor forced her to live in his apartment; he did not maltreat
her, but only told her to stop coming to his place because he discovered that she had deceived him by stealing his money and passport; and
finally, no confrontation took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is baseless
and unfounded and that as a result thereof, he was unnecessarily dragged into court and compelled to incur expenses, and has suffered
mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral
damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4embodying the stipulated facts which the parties had
agreed upon, to wit:

23

1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while the defendant is single, Iranian citizen and
resident (sic) of Lozano Apartment, Guilig, Dagupan City since September 1, 1987 up to the present;
2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College of Medicine, second year medicine
proper;
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue, Dagupan City since July, 1986 up to the
present and a (sic) high school graduate;
4. That the parties happened to know each other when the manager of the Mabuhay Luncheonette, Johhny Rabino introduced
the defendant to the plaintiff on August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a decision 5favoring the private
respondent. The petitioner was thus ordered to pay the latter damages and attorney's fees; the dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00) pesos as moral damages.
2. Condemning further the defendant to play the plaintiff the sum of three thousand (P3,000.00) pesos as atty's fees and two
thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the costs.
3. All other claims are denied. 6
The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were lovers, (b) private
respondent is not a woman of loose morals or questionable virtue who readily submits to sexual advances, (c) petitioner, through
machinations, deceit and false pretenses, promised to marry private respondent, d) because of his persuasive promise to marry her, she
allowed herself to be deflowered by him, (e) by reason of that deceitful promise, private respondent and her parents in accordance with
Filipino customs and traditions made some preparations for the wedding that was to be held at the end of October 1987 by looking for pigs
and chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of
the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good customs, culture and
traditions. The trial court gave full credit to the private respondent's testimony because, inter alia, she would not have had the temerity and
courage to come to court and expose her honor and reputation to public scrutiny and ridicule if her claim was false. 7
The above findings and conclusions were culled from the detailed summary of the evidence for the private respondent in the foregoing
decision, digested by the respondent Court as follows:

24

According to plaintiff, who claimed that she was a virgin at the time and that she never had a boyfriend before, defendant
started courting her just a few days after they first met. He later proposed marriage to her several times and she accepted his
love as well as his proposal of marriage on August 20, 1987, on which same day he went with her to her hometown of Baaga,
Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their relationship and their intention to get married.
The photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with plaintiff, were
taken that day. Also on that occasion, defendant told plaintiffs parents and brothers and sisters that he intended to marry her
during the semestral break in October, 1987, and because plaintiff's parents thought he was good and trusted him, they agreed
to his proposal for him to marry their daughter, and they likewise allowed him to stay in their house and sleep with plaintiff
during the few days that they were in Bugallon. When plaintiff and defendant later returned to Dagupan City, they continued to
live together in defendant's apartment. However, in the early days of October, 1987, defendant would tie plaintiff's hands and
feet while he went to school, and he even gave her medicine at 4 o'clock in the morning that made her sleep the whole day and
night until the following day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave her some
medicine to abort the fetus. Still plaintiff continued to live with defendant and kept reminding him of his promise to marry her
until he told her that he could not do so because he was already married to a girl in Bacolod City. That was the time plaintiff left
defendant, went home to her parents, and thereafter consulted a lawyer who accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the barangay captain went to talk to
defendant to still convince him to marry plaintiff, but defendant insisted that he could not do so because he was already married
to a girl in Bacolod City, although the truth, as stipulated by the parties at the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his desire to marry Marilou, he already
looked for sponsors for the wedding, started preparing for the reception by looking for pigs and chickens, and even already
invited many relatives and friends to the forthcoming wedding. 8
Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as CA-G.R. CV No. 24256. In his Brief,
9
he contended that the trial court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in ordering him to pay moral
damages, attorney's fees, litigation expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged decision 10affirming in toto the trial court's ruling of 16 October 1989. In
sustaining the trial court's findings of fact, respondent Court made the following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years old at the time, does not appear
to be a girl of loose morals. It is uncontradicted that she was a virgin prior to her unfortunate experience with defendant and
never had boyfriend. She is, as described by the lower court, a barrio lass "not used and accustomed to trend of modern urban
life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the defendant to marry her." In fact, we
agree with the lower court that plaintiff and defendant must have been sweethearts or so the plaintiff must have thought
because of the deception of defendant, for otherwise, she would not have allowed herself to be photographed with defendant in
public in so (sic) loving and tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore,

25

defendant's pretense that plaintiff was a nobody to him except a waitress at the restaurant where he usually ate. Defendant in
fact admitted that he went to plaintiff's hometown of Baaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on
February 27, 1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with the manager and employees of the Mabuhay
Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiff's mother who told him
to marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan City where he was involved in the serious study
of medicine to go to plaintiff's hometown in Baaga, Bugallon, unless there was (sic) some kind of special relationship between
them? And this special relationship must indeed have led to defendant's insincere proposal of marriage to plaintiff,
communicated not only to her but also to her parents, and (sic) Marites Rabino, the owner of the restaurant where plaintiff was
working and where defendant first proposed marriage to her, also knew of this love affair and defendant's proposal of marriage
to plaintiff, which she declared was the reason why plaintiff resigned from her job at the restaurant after she had accepted
defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good moral character and must think so low and have so little
respect and regard for Filipino women that he openly admitted that when he studied in Bacolod City for several years where he
finished his B.S. Biology before he came to Dagupan City to study medicine, he had a common-law wife in Bacolod City. In other
words, he also lived with another woman in Bacolod City but did not marry that woman, just like what he did to plaintiff. It is not
surprising, then, that he felt so little compunction or remorse in pretending to love and promising to marry plaintiff, a young,
innocent, trustful country girl, in order to satisfy his lust on her. 11
and then concluded:
In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and deceptive protestations of love
for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest
and sincere belief that he would keep said promise, and it was likewise these (sic) fraud and deception on appellant's part that
made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage. And as these acts of
appellant are palpably and undoubtedly against morals, good customs, and public policy, and are even gravely and deeply
derogatory and insulting to our women, coming as they do from a foreigner who has been enjoying the hospitality of our people
and taking advantage of the opportunity to study in one of our institutions of learning, defendant-appellant should indeed be
made, under Art. 21 of the Civil Code of the Philippines, to compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this case. 12
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single issue of whether or not Article
21 of the Civil Code applies to the case at bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or violated any good
custom or public policy; he has not professed love or proposed marriage to the private respondent; and he has never maltreated her. He
criticizes the trial court for liberally invoking Filipino customs, traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he is not familiar with Catholic and Christian ways. He

26

stresses that even if he had made a promise to marry, the subsequent failure to fulfill the same is excusable or tolerable because of his
Moslem upbringing; he then alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the
basis thereof, the trial court erred in ruling that he does not posses good moral character. Moreover, his controversial "common law life" is now
his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful cohabitation with the
private respondent, petitioner claims that even if responsibility could be pinned on him for the live-in relationship, the private respondent
should also be faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even if it was to be assumed arguendo that
he had professed his love to the private respondent and had also promised to marry her, such acts would not be actionable in view of the
special circumstances of the case. The mere breach of promise is not actionable. 14
On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had filed his Reply thereto, this
Court gave due course to the petition and required the parties to submit their respective Memoranda, which they subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear that questions of fact, which
boil down to the issue of the credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate courts will not disturb the
trial court's findings as to the credibility of witnesses, the latter court having heard the witnesses and having had the opportunity to observe
closely their deportment and manner of testifying, unless the trial court had plainly overlooked facts of substance or value which, if
considered, might affect the result of the case. 15
Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact of substance or values which
could alter the result of the case.
Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. It is
not the function of this Court to analyze or weigh all over again the evidence introduced by the parties before the lower court. There are,
however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr.,16this Court took the time, again, to enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257
[1953]); (2) When the inference made is manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a
misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When
the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of
both appellate and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970];
Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioners main and reply

27

briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the
supposed absence of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted exceptions in this case. Consequently, the factual
findings of the trial and appellate courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an actionable wrong. 17Congress deliberately eliminated from the draft of
the New Civil Code the provisions that would have made it so. The reason therefor is set forth in the report of the Senate Committees on the
Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That breach of promise to marry is not actionable has been definitely decided in the
case of De Jesus vs. Syquia. 18The history of breach of promise suits in the United States and in England has shown that no other
action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the
abolition of rights of action in the so-called Heart Balm suits in many of the American states. . . . 19
This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or quasi-delict in this
jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically
enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs defined or determined by positive law. Fully sensible that
there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice, to incorporate in the
proposed Civil Code the following rule:
Art. 23. 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.
An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old daughter of "X". A promise of
marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is no crime,
as the girl is above nineteen years of age. Neither can any civil action for breach of promise of marriage be filed. Therefore,
though the grievous moral wrong has been committed, and though the girl and family have suffered incalculable moral damage,
she and her parents cannot bring action for damages. But under the proposed article, she and her parents would have such a
right of action.

28

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate legal remedy for that untold
number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes. 21
Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish legal treatises
as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa
aquiliana because it includes not only negligence, but international criminal acts as well such as assault and battery, false
imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting
the New Civil Code, intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code while
negligent acts or omissions are to be covered by Article 2176 of the Civil Code. 22In between these opposite spectrums are injurious
acts which, in the absence of Article 21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that
together with Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become
much more supple and adaptable than the Anglo-American law on torts. 23
In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to marry is in fact the
proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate
cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice or inveigle her to accept him and to obtain her consent to the sexual act, could justify
the award of damages pursuant to Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the
willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a
manner contrary to morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for and promise to
marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would
keep said promise, and it was likewise these fraud and deception on appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage." 24In short, the private respondent surrendered her virginity, the cherished
possession of every single Filipina, not because of lust but because of moral seduction the kind illustrated by the Code Commission in its
example earlier adverted to. The petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of
the Revised Penal Code because the private respondent was above eighteen (18) years of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry where the woman is a victim of
moral seduction. Thus, in Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the woman because:

29

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10)
years younger than the complainant who was around thirty-six (36) years of age, and as highly enlightened as a former high
school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere
apprentice pilot, but, also, because the court of first instance found that, complainant "surrendered herself" to petitioner
because, "overwhelmed by her love" for him, she "wanted to bind" him by having a fruit of their engagement even before they
had the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26while this Court likewise hinted at possible recovery if there had been moral seduction, recovery was
eventually denied because We were not convinced that such seduction existed. The following enlightening disquisition and conclusion were
made in the said case:
The Court of Appeals seem to have overlooked that the example set forth in the Code Commission's memorandum refers to a
tort upon a minor who had been seduced. The essential feature is seduction, that in law is more than mere sexual intercourse,
or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior power or abuse of
confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9
Phil. 595).
It has been ruled in the Buenaventura case (supra) that
To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must
yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56) She must be induced to depart
from the path of virtue by the use of some species of arts, persuasions and wiles, which are calculated to have
and do have that effect, and which result in her person to ultimately submitting her person to the sexual
embraces of her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the
injury; and a mere proof of intercourse is insufficient to warrant a recovery.
Accordingly it is not seduction where the willingness arises out of sexual desire of curiosity of the female, and the
defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that
to allow a recovery in all such cases would tend to the demoralization of the female sex, and would be a reward
for unchastity by which a class of adventuresses would be swift to profit. (47 Am. Jur. 662)
xxx xxx xxx

30

Over and above the partisan allegations, the fact stand out that for one whole year, from 1958 to 1959, the plaintiff-appellee, a
woman of adult age, maintain intimate sexual relations with appellant, with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had the appellant been
deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she would not
have again yielded to his embraces, much less for one year, without exacting early fulfillment of the alleged promises of
marriage, and would have cut short all sexual relations upon finding that defendant did not intend to fulfill his defendant did not
intend to fulfill his promise. Hence, we conclude that no case is made under article 21 of the Civil Code, and no other cause of
action being alleged, no error was committed by the Court of First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28Associate Justice Edgardo L. Paras, who recently retired from this Court, opined that in a breach of
promise to marry where there had been carnal knowledge, moral damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs.
Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the
carnal knowledge, there is a chance that there was criminal or moral seduction, hence recovery of moral damages will prosper. If
it be the other way around, there can be no recovery of moral damages, because here mutual lust has intervened). . . .
together with "ACTUAL damages, should there be any, such as the expenses for the wedding presentations (See Domalagon v. Bolifer,
33 Phil. 471).
Senator Arturo M. Tolentino

29

is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30still subsists, notwithstanding the incorporation of the present article 31 in
the Code. The example given by the Code Commission is correct, if there was seduction, not necessarily in the legal sense, but
in the vulgar sense of deception. But when the sexual act is accomplished without any deceit or qualifying circumstance of
abuse of authority or influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said that
there is an injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The court, however, must weigh the
degree of fraud, if it is sufficient to deceive the woman under the circumstances, because an act which would deceive a girl
sixteen years of age may not constitute deceit as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if the act is not punishable under the criminal law and
there should have been an acquittal or dismissal of the criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake, that he did promise to
marry the private respondent, the latter is nevertheless also at fault. According to him, both parties are in pari delicto; hence, pursuant to
Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos, 32the private respondent cannot recover damages from the

31

petitioner. The latter even goes as far as stating that if the private respondent had "sustained any injury or damage in their relationship, it is
primarily because of her own doing, 33for:
. . . She is also interested in the petitioner as the latter will become a doctor sooner or later. Take notice that she is a plain high
school graduate and a mere employee . . . (Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and
without doubt, is in need of a man who can give her economic security. Her family is in dire need of financial assistance. (TSN,
pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition that may have been offered by the
petitioner. 34
These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if not sarcastic, regard for
the private respondent on account of the latter's ignoble birth, inferior educational background, poverty and, as perceived by him,
dishonorable employment. Obviously then, from the very beginning, he was not at all moved by good faith and an honest motive. Marrying
with a woman so circumstances could not have even remotely occurred to him. Thus, his profession of love and promise to marry were empty
words directly intended to fool, dupe, entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her
to be his life's partner. His was nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his proffer
of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated the Filipino's concept of
morality and brazenly defied the traditional respect Filipinos have for their women. It can even be said that the petitioner committed such
deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every person to act with justice, give everyone his due and
observe honesty and good faith in the exercise of his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by the purest of
intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is apparent
that she had qualms of conscience about the entire episode for as soon as she found out that the petitioner was not going to marry her after
all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal
in guilt or in legal fault." 35At most, it could be conceded that she is merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by the
imposition of undue influence of the party on whom the burden of the original wrong principally rests, or where his consent to
the transaction was itself procured by
fraud. 36
In Mangayao vs. Lasud,

37

We declared:

Appellants likewise stress that both parties being at fault, there should be no action by one against the other (Art. 1412, New
Civil Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or less,

32

equivalent. It does not apply where one party is literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40 Phil.
209).
We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the deplorable behavior of
her parents in letting her and the petitioner stay together in the same room in their house after giving approval to their marriage. It is the
solemn duty of parents to protect the honor of their daughters and infuse upon them the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs against the petitioner.
SO ORDERED.

4. Not subject to stipulation

NCC 221
Art. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or
of the absolute community of property between husband and wife;
(3) Every collusion to obtain a decree of legal separation, or of annulment of marriage;
(4) Any simulated alienation of property with intent to deprive the compulsory heirs of their legitime.

33

JOSE R. PAGANIBAN, complainant,

vs.
ELIAS BORROMEO, respondent.
The Respondent in his own behalf.
Office of the Solicitor-General Hilado for the Government.
MALCOLM, J.:
These proceedings looking to the disbarment of the respondent attorney are before us on the representations of the Solicitor-General that the
respondent appear and show cause, if any he has, why he should not be proceeded against for professional malpractice. The respondent
admits that, in his capacity as notary public he legalized the document which is the basis of the complaint against him, and that the document
contains provisions contrary to law, morals and good customs, but by way of defense disclaims any previous knowledge of the illegal character
of the document.
On November 25, 1931, Alejandro Pabro and Juana Mappala husband and wife, subscribed a contract before the notary public Elias Borromeo,
who was at that time a regularly admitted member of the Philippine Bar. The contract in question had been prepared by the municipal
secretary of Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the document and had, at lease, some knowledge of its
contents, although he may not have been fully informed because of a difference in dialect. The contract in substance purported to formulate
an agreement between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in
adulterous relationship with another man, without opposition from either one of them.
Two questions are suggested by the record. The first concerns the points of whether or not the contract sanctioned an illicit and immoral
purpose. The second concerns the point, on the supposition that the contract did sanction an illicit and immoral purpose, of whether a lawyer
may be disciplined for misconduct as a notary public.
The contract of the spouses, it will be recalled, was executed at a time when the Spanish Penal Code, as modified by Act No. 1773 was in force.
Conceding, however, that the more liberal provisions of the Revised Penal Code should be given application, it is herein provided that the
consent or pardon given by the offended party constitutes a bar to prosecution for adultery or concubinage. In this instance, if the spouses
should retain their present frame of mind, no prosecution of either one by the other could be expected. Nevertheless, we think it far from the
purpose of the Legislature to legalize adultery and concubinage. They still remain crimes, with the qualification that prosecution cannot be
instituted if the offended party consent to the act or pardon the offender. This is a matter of future contingency and is not matter for
legalization in wanton disregard of good morals. We hold the contract to contain provisions contrary to law, morals and public order, and as a
consequence not judicially recognizable.

34

Passing to the second question, we think there can be no question as to the right of the court to discipline an attorney who, in his capacity as
notary public, has been guilty of misconduct. To the office of notary public there is not attached such importance under present conditions as
under the Spanish administration. Even so, the notary public exercise duties calling for carefulness and faithfulness. It is for the notary to
inform himself of the facts to which he intends to certify, and to take part in no illegal enterprise. The notary public is usually a person who has
been admitted to the practice of law, and such, in the commingling of his duties as notary and lawyer, must be held responsible for both. We
are led to hold that a member of the bar who performs an act as a notary public of a disgraceful or immoral character may be held to account
by the court even to the extent of disbarment. (See2 Thornton on Attorneys At Law, pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In
re Bernard [1912], 136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2 Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S.
vs. Kilayko [1916], 34 Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating circumstances, there may be taken into consideration (1) that the attorney
may not have realized the full purport of the document to which he took acknowledgment, (2) that no falsification of facts was attempted, and
(3) that the commission of the respondent as a notary public has been revoked. Accordingly, we are disposed in this case to exercise clemency
and to confine our discipline of the respondent to severe censure. So ordered.

A.C. No. 932

June 21, 1940

In re ATTY. ROQUE SANTIAGO, respondent,

Office of the Solicitor-General Ozaeta as petitioner-complainant.
LAUREL, J.:

35

This is an administrative case initiated upon complaint of the Solicitor-General against the respondent Roque Santiago, charging the latter with
malpractice and praying that disciplinary action be taken against him.
It appears that one Ernesto Baniquit, who was living then separately from his wife Soledad Colares for some nine consecutive years and who
was bent on contracting a second marriage, sought the legal advice of the respondent, who was at the time a practicing and notary public in
the Province of Occidental Negros. The respondent, after hearing Baniquit's side of the case, assured the latter that he could secure a
separation from his wife and marry again, and asked him to bring his wife on the afternoon of the same day, May 29, 1939. This was done and
the respondent right then and there prepared the document Exhibit A in which it was stipulated, among other things, that the contracting
parties, who are husband and wife authorized each other to marry again, at the same time renouncing or waiving whatever right of action one
might have against the party so marrying. After the execution and acknowledgment of Exhibit A by the parties, the respondent asked the
spouses to shake hands and assured them that they were single and as such could contract another and subsequent marriage. Baniquit then
remarked, "Would there be no trouble?" Upon hearing it the respondent stood up and, pointing to his diploma hanging on the wall, said: "I
would tear that off if this document turns out not to be valid." Relying on the validity of Exhibit A, Ernesto Baniquit, on June 11, 1939,
contracted a second marriage with Trinidad Aurelio. There is also evidence to show that the respondent tried to collect for this service the sum
of P50, but as the evidence on this point is not clear and the same is not material in the resolution of the present case, we do not find it
necessary to make any express finding as to whether the full amount or any portion thereof was paid or, as contended by the respondent, the
service were rendered free of charge.
The respondent did not deny the preparation of Exhibit A, put up the defense that he had the idea that seven years separation of husband and
wife would entitle either of them to contract a second marriage and for that reason prepared Exhibit A, but immediately after the execution of
said document he realized that he had made a mistake and for that reason immediately sent for the contracting parties who, on June 30, 1939,
came to his office and signed the deed of cancellation Exhibit A.
There is no doubt that the contract Exhibit A executed by and between the spouses Ernesto Baniquit and Soledad Colares upon the advice of
the respondent and prepared by the latter as a lawyer and acknowledged by him as a notary public is contrary to law, moral, and tends to
subvert the vital foundation of the family. The advice given by the respondent, the preparation and acknowledgment by him of the contract
constitute malpractice which justifies disbarment from the practice of law. The admission of a lawyer to the practice of law is upon the implied
condition that his continued enjoyment of the privilege conferred is dependent upon his remaining a fit and safe person to society. When it
appears that he, by recklessness or sheer ignorance of the law, is unfit or unsafe to be entrusted with the responsibilities and obligations of a
lawyer, his right to continue in the enjoyment of this professional privilege should be declared terminated. In the present case, respondent was
either ignorant of the applicable provision of the law or carelessly negligent in giving the complainant legal advice. Drastic action should lead
to his disbarment and this is the opinion of some members of the court. The majority, however, have inclined to follow the recommendation of
the investigator, the Honorable Sotero Rodas, in view of the circumstances stated in the report of said investigator and the fact that
immediately after discovering his mistakes, respondent endeavored to correct it by making the parties sign another document cancelling the
previous one.
The respondent Roque Santiago is found guilty of malpractice and is hereby suspended from the practice of law for a period of one year. So
ordered.

36

A.M. No. 804-CJ May 19, 1975

SATURNINO SELANOVA, complainant,
vs.
ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent.
RESOLUTION

AQUINO, J.:+.wph!1
Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City with gross ignorance of the law for having prepared and ratified a
document dated November 21, 1972, extrajudicially liquidating the conjugal partnership of the complainant and his wife, Avelina Ceniza. One
condition of the liquidation was that either spouse (as the case may be) would withdraw the complaint for adultery or concubinage which each
had filed against the other and that they waived their "right to prosecute each other for whatever acts of infidelity" either one would commit
against the other.
Judge Mendoza in his comment on the charge purposed to convey the impression that he was aware of the invalidity of the agreement but he
nevertheless ratified it and gave it his nihil obstat on the assurance of the spouses that they would ask the Court of First Instance of Negros
Oriental (where they were residing) to approve the agreement. That pretension is disbelieved by the Judicial Consultant.
Respondent Judge alleged that he relied on the provision that "the husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval" (Par. 4, Art. 191, Civil Code).
He argues that to give the prohibition against an extrajudicial liquidation of the conjugal partnership during the marriage "an unqualified and
literal legal construction" would lender nugatory the aforequoted provisions of article 191. He cites Lacson vs. San Jose-Lacson, L-23482, L23767 and L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of an extrajudicial agreement for the dissolution during the
marriage of the conjugal partnership as long as the agreement is subsequently approved by the court.
However, the respondent overlooks the unmistakable ruling of this Court in the Lacson case that judicial sanction for the dissolution of the
conjugal partnership during the marriage should be "secured beforehand."
Respondent Judge surmised that Selanova's complaint was instigated by a lawyer whose case was adversely decided by the Judge. That
speculation was denied by Selanova who also belied Judge Mendoza's version that the complainant and his wife, Avelina Ceniza, "together with
their parents", came to the office of Judge Mendoza and solicited his help in the amicable settlement of their marital imbroglio.

37

According to Selanova, in 1972 his father was already dead and his mother was ninety-one years old. They could not possibly have come to
Judge Mendoza's office. Selanova said that only he and his brother-in-law, Arcadio Ceniza, an alleged classmate of Judge Mendoza, were the
persons who went to the Judge's office. But that version may be inaccurate and oversimplified, considering that the agreement was signed
before Judge Mendoza not only by Selanova but also by his wife and two witnesses, Lamberts M. Ceniza and Florencio C. Pono.
Judge Mendoza retired on February 27, 1975 when he reached the age of seventy. In his letter of April 8, 1975 he asked for a compassionate
view of his case considering his forty-three years' service in the government (he started his public career in 1932 as a policeman and became
a justice of the peace in 1954). He also cited the financial predicament of his big family occasioned by the delay in the payment of his
retirement and terminal leave pay.
The case was not referred to a Judge of the Court of First Instance for investigation because actually no factual issues necessitate a hearing
and presentation of evidence. Respondent Judge admitted that he was responsible for the execution of the questioned document, an
extrajudicial "Liquidation of Conjugal Properties", which he caused complainant Saturnino Selanova and his wife, Avelina Ceniza, to sign.
In that instrument Judge Mendoza divided the two pieces of conjugal assets of the spouses by allocating to the husband a thirteen-hectare
riceland and to the wife the residential house and lot. The last paragraph of the instrument, which licensed either spouse to commit any act of
infidelity, was in effect a ratification of their personal separation. The agreement in question is void because it contravenes the following
provisions of the Civil Code:t.hqw
ART. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute
community of property between husband and wife;
xxx xxx xxx
Even before the enactment of the new Civil Code, this Court held that the extrajudicial dissolution of the conjugal partnership without judicial
approval was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15, De La Rosa vs. Barruga, L-2368, June 30, 1950, 4 ROP
Digest 171, sec. 29).
On the other hand, disciplinary action had been taken against notaries who authenticated agreements for the personal separation of spouses
wherein either spouse was permitted to commit acts of infidelity.
Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely censured for having notarized a document containing "an agreement
between the husband and the wife which permitted the husband to take unto himself a concubine and the wife to live in adulterous
relationship with another man, without opposition from either one of them". The document was prepared by another person.

38

In that case this Court noted that while adultery and concubinage are private crimes, "they still remain crimes" and a contract legalizing their
commission is "contrary to law, morals and public order, and as a consequence not judicially recognizable". Since the notary's commission was
already revoked, this Court did not disbar him. The fact that he "may not have realized the full purport of the document to which he took
acknowledgment' was considered mitigating.
Severe censure was also administered to a notary of Cebu City who ratified a document entitled "Legal Separation", executed by husband and
wife, wherein they agreed that they separated mutually and voluntarily, that they renounced their rights and obligations, and that they
authorized each other to remarry, renouncing any action to which they might be entitled and each promising not to be a witness against the
other. Those covenants are contrary to law, morals and good customs and tend to subvert the vital foundation of the legitimate family (Biton
vs. Momongon, 62 Phil. 7).
In the Santiago case respondent lawyer prepared for a married couple (who had been separated for nine years) a document wherein it was
stipulated, inter alia, that they authorized each other to marry again, at the same time renouncing whatever right of action one might have
against the other. When the husband inquired if there would be no trouble, respondent lawyer pointed to his diploma which was hanging on
the wall and said: "I would tear that off if this document turns out not to be valid." The husband remarried. The respondent was suspended
from the practice of law for one year for having been ignorant of the law or being careless in giving legal advice (In re Santiago, 70 Phil. 66).
In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon prepared an affidavit wherein he declared that he was married to Vertudes
Marquez, from whom he had been separated, their conjugal partnership having been dissolved, and that he was consorting with Regina S.
Balinon his "new found life-partner," to whom he would "remain loyal and faithful" "as a lawful and devoted loving husband for the rest of" his
life "at all costs". Attorney Justo T. Velayo notarized that affidavit. This Court reprimanded Velayo and suspended De Leon from the practice of
law for three years.
In the instant case, respondent Judge, due to his unawareness of the legal prohibition against contracts for the personal separation of husband
and wife and for the extrajudicial dissolution of their conjugal partnership, prepared the said void agreement which was acknowledged before
him as "City Judge and Notary Public Ex-Officio". (Because he was admitted to the bar in 1948 and, consequently, he did not study the new
Civil Code in the law school, he might not have been cognizant of its aforecited article 221).
Taking into account that circumstance and his apparent good faith and honest desire to terminate the marital conflict between the
complainant and his wife, we are of the opinion that a drastic penalty should not be imposed on him. But he deserves a severe censure for his
mistake in preparing and notarizing the aforementioned immoral and illegal agreement. Such severe reprimand should not be an obstacle to
his enjoyment of retirement privileges, assuming that there are no causes for depriving him of such benefits.
WHEREFORE, the respondent is severely censured.
SO ORDERED.

39

G.R. No. 80965 June 6, 1990

SYLVIA LICHAUCO DE LEON, petitioner,
vs.
THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE LEON, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
De Jesus & Associates for Macaria de Leon.
Quisumbing, Torres & Evangelista for Jose Vicente de Leon.

MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. CV No. 06649 dated June 30, 1987 the decision of
the Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29, 1983; and its resolution dated November 24, 1987 denying the
motion for reconsideration.
The antecedent facts are as follows:

40

On October 18, 1969, private respondent Jose Vicente De Leon and petitioner Sylvia Lichauco De Leon were united in wedlock before the
Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child named Susana L. De Leon was born from this union.
Sometime in October, 1972, a de facto separation between the spouses occured due to irreconcilable marital differences, with Sylvia leaving
the conjugal home. Sometime in March, 1973, Sylvia went to the United States where she obtained American citizenship.
On November 23, 1973, Sylvia filed with the Superior Court of California, County of San Francisco, a petition for dissolution of marriage against
Jose Vicente. In the said divorce proceedings, Sylvia also filed claims for support and distribution of properties. It appears, however, that since
Jose Vicente was then a Philippine resident and did not have any assets in the United States, Sylvia chose to hold in abeyance the divorce
proceedings, and in the meantime, concentrated her efforts to obtain some sort of property settlements with Jose Vicente in the Philippines.
Thus, on March 16, 1977, Sylvia succeeded in entering into a Letter-Agreement with her mother-in-law, private respondent Macaria De Leon,
which We quote in full, as follows (pp. 40-42, Rollo):
March 16, 1977
Mrs. Macaria Madrigal de Leon
12 Jacaranda, North Forbes Park
Makati, Metro Manila
Dear Dora Macaria:
This letter represents a contractual undertaking among (A) the undersigned (B) your son, Mr. Jose Vicente de Leon, represented
by you, and (C) yourself in your personal capacity.
You hereby bind yourself jointly and severally to answer for the undertakings of Joe Vincent under this contract.
In consideration for a peaceful and amicable termination of relations between the undersigned and her lawfully wedded
husband, Jose Vicente de Leon, your son, the following are agreed upon:
Obligations of Jose Vicente de Leon and/ or yourself in a joint and several capacity:
1. To deliver with clear title free from all liens and encumbrances and subject to no claims in any form whatsoever the following
properties to Sylvia Lichauco-de Leon hereinafter referred to as the wife:
A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St., Mandaluyong, Rizal, Philippines.
B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal, Philippines.

41

C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots, 801 s q. meters each). (Fully paid).
D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block 22 Westborough Unit No. 2). (Fully paid).
E. 1) The sum of One Hundred Thousand Pesos (P100,000)
2) $30,000
3) $5,000
2. To give monthly support payable six (6) months in advance every year to any designated assignee of the wife for the care and
upbringing of Susana Lichauco de Leon which is hereby pegged at the exchange rate of 7.50 to the dollar subject to adjustments
in the event of monetary exchange fluctuations. Subsequent increase on actual need upon negotiation.
3. To respect the custody of said minor daughter as pertaining exclusively to the wife except as herein provided.
Obligations of the wife:
1. To agree to a judicial separation of property in accordance with Philippine law and in this connection to do all that may be
necessary to secure said separation of property including her approval in writing of a joint petition or consent decree.
2. To amend her complaint in the United States before the Federal Court of California, U.S.A. entitled "Sylvia Lichauco de Leon
vs. Jose V. de Leon" in a manner compatible with the objectives of this herein agreement. It is the stated objective of this
agreement that said divorce proceedings will continue.
3. All the properties herein described for assignment to the wife must be assigned to Sylvia Lichauco de Leon upon the decree of
the Court of First Instance in the Joint Petition for Separation of Property; except for the P100,000, $30,000 and $5,000 which will
be paid immediately.
4. This contract is intended to be applicable both in the Republic of the Philippines and in the United States of America. It is
agreed that this will constitute an actionable document in both jurisdictions and the parties herein waive their right to object to
the use of this document in the event a legal issue should arise relating to the validity of this document. In the event of a
dispute, this letter is subject to interpretation under the laws of California, U.S.A.
5. To allow her daughter to spend two to three months each year with the father upon mutual convenience.
Very truly yours,

42

(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON

CONFORME:
s/t/MACARIA M. DE LEON
with my marital consent:
s/t/JUAN L. DE LEON
On the same date, Macaria made cash payments to Sylvia in the amount of P100,000 and US$35,000.00 or P280,000.00, in compliance with
her obligations as stipulated in the aforestated Letter-Agreement.
On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of First Instance of Rizal a joint petition for judicial approval of
dissolution of their conjugal partnership, the main part of which reads as follows (pp. 37-38, Rollo):
5. For the best interest of each of them and of their minor child, petitioners have agreed to dissolve their conjugal partnership
and to partition the assets thereof, under the following terms and conditions-this document, a pleading being intended by them
to embody and evidence their agreement:
xxx xxx xxx
(c) The following properties shall be adjudicated to petitioner Sylvia Lichauco De Leon. These properties will be free of any and
all liens and encumbrances, with clear title and subject to no claims by third parties. Petitioner Jose Vicente De Leon fully
assumes all responsibility and liability in the event these properties shall not be as described in the previous sentence:
Sedan (1972 model)
Suite 11-C, Avalon Condominium,
Ortigas Ave., comer Xavier St.,
Mandaluyong, Rizal, Philippines
Apt. 702, Wack-Wack Condominium,
Mandaluyong, Rizal, Philippines
The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801 sq. meters each) (Fully paid)
2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block 22 Westborough Unit 2) (Fully paid)
The sum of One Hundred Thousand Pesos (P100,000.00)

43

$30,000.00 at current exchange rate

$5,000.00 at current exchange rate
After ex-parte hearings, the trial court issued an Order dated February 19, 1980 approving the petition, the dispositive portion of which reads
(p. 143, Rollo):
WHEREFORE, it is hereby declared that the conjugal partnership of the Spouses is DISSOLVED henceforth, without prejudice to
the terms of their agreement that each spouse shall own, dispose of, possess, administer and enjoy his or her separate estate,
without the consent of the other, and all earnings from any profession, business or industries shall likewise belong to each
spouse.
On March 17, 1980, Sylvia moved for the execution of the above-mentioned order. However, Jose Vicente moved for a reconsideration of the
order alleging that Sylvia made a verbal reformation of the petition as there was no such agreement for the payment of P4,500.00 monthly
support to commence from the alleged date of separation in April, 1973 and that there was no notice given to him that Sylvia would attempt
verbal reformation of the agreement contained in the joint petition
While the said motion for reconsideration was pending resolution, on April 20, 1980, Macaria filed with the trial court a motion for leave to
intervene alleging that she is the owner of the properties involved in the case. The motion was granted. On October 29, 1980, Macaria,
assisted by her husband Juan De Leon, filed her complaint in intervention. She assailed the validity and legality of the Letter-Agreement which
had for its purpose, according to her, the termination of marital relationship between Sylvia and Jose Vicente. However, before any hearing
could be had, the judicial reorganization took place and the case was transferred to the-Regional Trial Court of Pasig. On December 29, 1983,
the trial court rendered judgment, the dispositive portion of which reads (pp. 35-36, Rollo):
WHEREFORE, judgment is hereby rendered on the complaint in intervention in favor of the intervenor, declaring null and void
the letter agreement dated March 16, 1977 (Exhibits 'E' to 'E-2'), and ordering petitioner Sylvia Lichauco De Leon to restore to
intervenor the amount of P380,000.00 plus legal interest from date of complaint, and to pay intervenor the amount of
P100,000.00 as and for attorney's fees, and to pay the costs of suit.
Judgment is likewise rendered affirming the order of the Court dated February 19, 1980 declaring the conjugal partnership of the
spouses Jose Vicente De Leon and Sylvia Lichauco De Leon DISSOLVED; and adjudicating to each of them his or her share of the
properties and assets of said conjugal partnership in accordance with the agreement embodied in paragraph 5 of the petition,
except insofar as the adjudication to petitioner Sylvia L. De Leon of the properties belonging to and owned by Intervenor
Macaria De Leon is concerned.
Henceforth, (a) each spouse shall own, dispose of, possess, administer and enjoy his or her separate estate, present and future
without the consent of the other; (b) an earnings from any profession, business or industry shall likewise belong to each of them
separately; (c) the minor child Susana De Leon shall stay with petitioner Sylvia Lichauco De Leon for two to three months every
year-the transportation both ways of the child for the trip to the Philippines to be at the expense of the petitioner Jose Vicente

44

De Leon; and (d) petitioner Jose Vicente De Leon shall give petitioner Sylvia Lichauco De Leon the sum of P4,500.00 as monthly
support for the minor child Susana to commence from February 19, 1980.
Sylvia appealed to the respondent Court of Appeals raising the following errors:
1) The trial court erred in finding that the cause or consideration of the Letter- Agreement is the termination of marital relations;
2) The trial court failed to appreciate testimonial and documentary evidence proving that Macaria de Leon's claims of threat, intimidation and
mistake are baseless; and
3) The trial court erred in finding that Sylvia Lichauco de Leon committed breach of the Letter-Agreement; and further, failed to appreciate
evidence proving Macaria de Leon's material breach thereof.
The respondent court affirmed the decision in toto. The motion for reconsideration was denied. Hence, the present petition.
The only basis by which Sylvia may lay claim to the properties which are the subject matter of the Letter-Agreement, is the Letter-Agreement
itself. The main issue, therefore, is whether or not the Letter-Agreement is valid. The third paragraph of the Letter-Agreement, supra, reads:
In consideration for a peaceful and amicable termination of relations between the undersigned and her lawfully wedded
husband, Jose Vicente De Leon, your son, the following are agreed upon: (emphasis supplied)
It is readily apparent that the use of the word "relations" is ambiguous, perforce, it is subject to interpretation. There being a doubt as to the
meaning of this word taken by itself, a consideration of the general scope and purpose of the instrument in which it occurs (see Germann and
Co. v. Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the Civil Code which provides that the various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly, is necessary.
Sylvia insists that the consideration for her execution of the Letter-Agreement was the termination of property relations with her husband.
Indeed, Sylvia and Jose Vicente subsequently filed a joint petition for judicial approval of the dissolution of their conjugal partnership,
sanctioned by Article 191 of the Civil Code. On the other hand, Macaria and Jose Vicente assert that the consideration was the termination of
marital relationship.
We sustain the observations and conclusion made by the trial court, to wit (pp. 44- 46, Rollo):
On page two of the letter agreement (Exhibit' E'), the parties contemplated not only to agree to a judicial separation of property
of the spouses but likewise to continue with divorce proceedings (paragraphs 1 and 2, Obligations of the Wife, Exhibit 'E-1'). If
taken with the apparently ambiguous provisions in Exhibit E' regarding termination of 'relations', the parties clearly
contemplated not only the termination of property relationship but likewise of marital relationship in its entirety. Furthermore, it
would be safe to assume that the parties in Exhibit 'E' not having specified the particular relationship which they wanted to

45

peacefully and amicably terminate had intended to terminate all kinds of relations, both marital and property. While there could
be inherent benefits to a termination of conjugal property relationship between the spouses, the court could not clearly perceive
the underlying benefit for the intervenor insofar as termination of property relationship between petitioners is concerned, unless
the underlying consideration for intervenor is the termination of marital relationship by divorce proceedings between her son
Jose Vicente and his wife petitioner Sylvia. The last sentence of paragraph 2 under "Obligations of the Wife" unequivocally
states: "It is the stated objective of this agreement that said divorce proceedings (in the United States) will continue. "There is
merit in concluding that the consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to secure freedom for her son
petitioner Jose Vicente De Leon, especially if Exhibit 'R'-Intervenor, which is (sic) agreement signed by petitioner Sylvia to
consent to and pardon Jose Vicente De Leon for adultery and concubinage (among others) would be considered. In the light,
therefore, of the foregoing circumstances, this Court finds credible the testimony of intervenor as follows:
Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting of three pages and inform us whether or not
this is the letter of March 16, 1977 which you just referred to?
A Yes, this is the letter.
Why did you affix your signature to this Exh. 'E'-intervenor (sic)?
A Because at that time when I signed it I want to buy peace for myself and for the whole family.
Q From whom did you want to buy peace and/or what kind of peace?
A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of 'matapang;' so I want peace for me and
primarily for the peaceful and amicable termination of marital relationship between my son, Joe Vincent and
Sylvia. (Deposition dated September 6, 1983-Macaria de Leon, p. 6-7)
This Court, therefore, finds and holds that the cause or consideration for the intervenor Macaria De Leon in having executed
Exhibits 'E' to 'E-2' was the termination of the marital relationship between her son Jose Vicente De Leon and Sylvia Lichauco de
Leon.
Article 1306 of the New Civil Code provides:
Art. 1306. The contracting parties may establish such stipulations, clauses, terms, and conditions as they may deem convenient,
provided they are not contrary to law, morals, good customs, public order or public policy.
If the stipulation is contrary to law, morals or public policy, the contract is void and inexistent from the beginning.
Art. 1409. The following contracts are inexistent and void from the beginning:

46

Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy;
xxx xxx xxx
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived.
But marriage is not a mere contract but a sacred social institution. Thus, Art. 52 of the Civil Code provides:
Art. 52. Marriage is not a mere contract but an inviolable social institution. Its nature, consequences and incidents are governed
by law and not subject to stipulations...
From the foregoing provisions of the New Civil Code, this court is of the considered opinion and so holds that intervenor's
undertaking under Exhibit 'E' premised on the termination of marital relationship is not only contrary to law but contrary to
Filipino morals and public Policy. As such, any agreement or obligations based on such unlawful consideration and which is
contrary to public policy should be deemed null and void. (emphasis supplied)
Additionally, Article 191 of the Civil Case contemplates properties belonging to the spouses and not those belonging to a third party, who, in
the case at bar., is Macaria. In the petition for the dissolution of the conjugal partnership, it was made to appear that the said properties are
conjugal in nature. However, Macaria was able to prove that the questioned properties are owned by her. Neither Sylvia nor Jose Vicente
adduced any contrary evidence.
Granting, in gratia argumenti, that the consideration of the Letter-Agreement was the termination of property relations, We agree with the
respondent court that (pp. 46-47, Rollo):
... the agreement nevertheless is void because it contravenes the following provisions of the Civil Code:
Art. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute
community of property between husband and wife;
Besides, the Letter-Agreement shows on its face that it was prepared by Sylvia, and in this regard, the ambiguity in a contract is to be taken
contra proferentem, i.e., construed against the party who caused the ambiguity and could have also avoided it by the exercise of a little more

47

care. Thus, Article 1377 of the Civil Code provides: "The interpretation of obscure words of stipulations in a contract shall not favor the party
who caused the obscurity" (see Equitable Banking Corp. vs. IAC, G.R. No. 74451, May 25, 1988, 161 SCRA 518).
Sylvia alleges further that since the nullity of the Letter-Agreement proceeds from the unlawful consideration solely of Macaria, applying the
pari delicto rule, it is clear that she cannot recover what she has given by reason of the Letter-Agreement nor ask for the fulfillment of what
has been promised her. On her part, Macaria raises the defenses of intimidation and mistake which led her to execute the Letter-Agreement. In
resolving this issue, the trial court said (pp. 148-151, Rollo):
In her second cause of action, intervenor claims that her signing of Exhibits 'E' to 'E- 2' was due to a fear of an unpeaceful and
troublesome separation other son with petitioner Sylvia Lichauco de Leon. In support of her claim, intervenor testified as follows:
Q Will you please inform us how did Sylvia Lichauco disturb or threaten your son or yourself?
A Despite the fact that Sylvia Lichauco voluntarily left my son Joe Vincent and abandoned him, she unashamedly
nagged Joe and me to get money and when her demands were not met she resorted to threats like, she
threatened to bring Joe to court for support. Sylvia threatened to scandalize our family by these baseless suits; in
fact she caused the service of summons to Joe when he went to the United States. (Intervenor's deposition dated
Sept. 6, 1983, p. 8).
On the other hand, petitioner Sylvia claims that it was intervenor and petitioner Jose Vicente who initiated the move to convince
her to agree to a dissolution of their conjugal partnership due to the alleged extra-marital activities of petitioner Jose Vicente de
Leon. She testified as follows:
Q Now in her testimony, Macaria Madrigal de Leon also said that you threatened her by demanding money and
nagged her until she agreed to the letter agreement of March 1977, what can you say about that?
A I think with all the people sitting around with Atty. Quisumbing, Atty. Chuidian, my father-in-law, my sister-in-law
and I, you know, it can be shown that this was a friendly amicable settlement that they were much really
interested in settling down as I was. I think there were certain reasons that they wanted to get done or planned,
being at that time Jose was already remarried and had a child. That since she then found out that since she was
worried about what might be, you know, involved in any future matters. She just wanted to do what she could.
She just want me out of the picture. So in no way, it cannot be said that I nagged and threatened her. (TSN dated
December 8, 1983, p. 137-138)
In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor, which was not controverted by petitioner Sylvia. A
reading of Exhibit 'R' would show that petitioner Sylvia would consent to and pardon petitioner Jose Vicente, son of intervenor,
for possible crimes of adultery and/or concubinage, with a sizing attached; that is, the transfer of the properties subject herein
to her. There appears some truth to the apprehensions of intervenor for in petitioner Sylvia's testimony she confirms the worry

48

of intervenor as follows:'... being at that time Jose (De Leon) was already remarried and had a child. That since she (intervenor)
found out that, she was worried about what might be, you know, involved in any future matters. She just want me out of the
picture." The aforesaid fear of intervenor was further corroborated by her witness Concepcion Tagudin who testified as follows:
Q Now, you mentioned that you were present when Mrs. Macaria De Leon signed this Exhibit 'E-2, ' will you inform
us whether there was anything unusual which you noticed when Mrs. Macaria M. De Leon signed this Exhibit 'E-2'?
A Mrs. Macaria M. De Leon was in a state of tension and anger. She was so mad that she remarked: 'Punetang
Sylvia ito bakit ba niya ako ginugulo. Ipakukulong daw niya si Joe Vincent kung hindi ko pipirmahan ito. Sana
matapos na itong problemang ito pagkapirmang ito,' sabi niya.' (Deposition-Concepcion Tagudin, Oct. 21, 1983,
pp. 10-11)
In her third cause of action, intervenor claims mistake or error in having signed Exhibits '1' to 'E-2' alleging in her testimony as
follows:
Q Before you were told such by your lawyers what if any were your basis to believe that Sylvia would no longer
have inheritance rights from your son, Joe Vincent?
A Well, that was what Sylvia told me. That she will eliminate any inheritance rights from me or my son Joe
Vincent's properties if I sign the document amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp. 9-10).
On the other hand, petitioner Sylvia claims that intervenor could not have been mistaken in her having signed the document as
she was under advice of counsel during the time that Exhibits 'E' to 'E-2' was negotiated. To support such claims by Sylvia
Lichauco De Leon, the deposition testimony of Atty. Vicente Chuidian was presented before this Court:
Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would you be able to tell us in what capacity he
was present in that negotiation?
Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent, the spouse of Sylvia. (Deposition of V.
Chuidian, December 16, 1983, p. 8)
The New Civil Code provides:
Art. 1330. A contract where consent is given through mistake, violence, intimidation, undue influence or fraud is voidable.
Art. 1331. In order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the
contract, or to those conditions which have principally moved one or both parties to enter into a contract. ...

49

The preponderance of evidence leans in favor of intervenor who even utilized the statement of the divorce lawyer of petitioner
Sylvia (Mr. Penrod) in support of the fact that intervenor was mistaken in having signed Exhibits 'E' to 'E-2' because when she
signed said Exhibits she believed that fact that petitioner Sylvia would eliminate her inheritance rights and there is no showing
that said intervenor was properly advised by any American lawyer on the fact whether petitioner Sylvia, being an American
citizen, could rightfully do the same. Transcending, however, the issue of whether there was mistake of fact on the part of
intervenor or not, this Court could not. see a valid cause or consideration in favor of intervenor Macaria De Leon having signed
Exhibits 'E' to 'E-2.' For even if petitioner Sylvia had confirmed Mr. Penrod's statement during the divorce proceedings in the
United States that she would undertake to eliminate her hereditary rights in the event of the property settlement, under
Philippine laws, such contract would likewise be voidable, for under Art. 1347 of the New Civil Code 'no contract may be entered
into upon future inheritance.
We do not subscribe to the aforestated view of the trial court. Article 1335 of the Civil Code provides:
xxx xxx xxx
There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent
and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his
consent.
To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent.
In order that intimidation may vitiate consent and render the contract invalid, the following requisites must concur: (1) that the intimidation
must be the determining cause of the contract, or must have caused the consent to be given; (2) that the threatened act be unjust or
unlawful; (3) that the threat be real and serious, there being an evident disproportion between the evil and the resistance which all men can
offer, leading to the choice of the contract as the lesser evil; and (4) that it produces a reasonable and well-grounded fear from the fact that
the person from whom it comes has the necessary means or ability to inflict the threatened injury. Applying the foregoing to the present case,
the claim of Macaria that Sylvia threatened her to bring Jose Vicente to court for support, to scandalize their family by baseless suits and that
Sylvia would pardon Jose Vicente for possible crimes of adultery and/or concubinage subject to the transfer of certain properties to her, is
obviously not the intimidation referred to by law. With respect to mistake as a vice of consent, neither is Macaria's alleged mistake in having
signed the Letter-Agreement because of her belief that Sylvia will thereby eliminate inheritance rights from her and Jose Vicente, the mistake
referred to in Article 1331 of the Civil Code, supra. It does not appear that the condition that Sylvia "will eliminate her inheritance rights"
principally moved Macaria to enter into the contract. Rather, such condition was but an incident of the consideration thereof which, as
discussed earlier, is the termination of marital relations.

50

In the ultimate analysis, therefore, both parties acted in violation of the laws. However, the pari delicto rule, expressed in the maxims "Ex dolo
malo non oritur actio" and "In pari delicto potior est conditio defendentis," which refuses remedy to either party to an illegal agreement and
leaves them where they are, does not apply in this case. Contrary to the ruling of the respondent Court that (pp. 47-48, Rollo):
... [C]onsequently, intervenor appellees' obligation under the said agreement having been annulled, the contracting parties shall
restore to each other that things which have been subject matter of the contract, their fruits and the price or its interest, except
as provided by law (Art. 1398, Civil Code).
Article 1414 of the Civil Code, which is an exception to the pari delicto rule, is the proper law to be applied. It provides:
When money is paid or property delivered for an illegal purpose, the contract may be repudiated by one of the parties before
the purpose has been accomplished, or before any damage has been caused to a third person. In such case, the courts may, if
the public interest wig thus be subserved, allow the party repudiating the contract to recover the money or property.
Since the Letter-Agreement was repudiated before the purpose has been accomplished and to adhere to the pari delicto rule in this case is to
put a premium to the circumvention of the laws, positive relief should be granted to Macaria. Justice would be served by allowing her to be
placed in the position in which she was before the transaction was entered into.
With the conclusions thus reached, We find it unnecessary to discuss the other issues raised.
ACCORDINGLY, the petition is hereby DENIED. The decision of the respondent Court of Appeals dated June 30, 1987 and its resolution dated
November 24, 1987 are AFFIRMED.
SO ORDERED.

B. Requisites

51

G.R. No. L-16925

July 24, 1962

FABIAN PUGEDA, plaintiff-appellee,

vs.
RAFAEL TRIAS, MIGUEL TRIAS, SOLEDAD TRIAS, assisted by her husband ANGEL SANCHEZ,
CLARA TRIAS, assisted by her husband VICTORIANO SALVADOR,
GABRIEL TRIAS, minors ROMULO VINIEGRA, GLORIA VINIEGRA and FERNANDO VINIEGRA, JR., assisted by guardian-adlitem,
RAFAEL TRIAS, TEOFILO PUGEDA, and VIRGINIA PUGEDA, assisted by her husband RAMON PORTUGAL, defendantsappellants.
Placido C. Ramos and Fortunato Jose for plaintiff-appellee.
Ramon C. Aquino for defendants-appellants Teofilo Pugeda and Virginia Pugeda.
Jose T. Cajulis, Miguel F. Trias and Carlos T. Viniegra for all other defendants-appellants.
C. R E S O L U T I O N
LABRADOR, J.:
This resolution concerns a motion for the reconsideration of the decision rendered by this Court. The main argument in support of the
motion is that the lots not fully paid for at the time of the death of Miguel Trias, which lots were, by provision of the Friar Lands Act (Act
No. 1120), subsequently transferred to the widow's name and later paid for by her out of the proceeds of the fruits of the lands
purchased, and for which titles were issued in the name of the widow, belong to the latter as her exclusive paraphernal properties, and
are not conjugal properties of her deceased husband and herself. In our decision we laid down the rule that upon the issuance of a
certificate of sale to the husband of a lot in a friar lands estate, purchased by the Government from the friars, the land becomes the
property of the husband and the wife, and the fact that the certificate of sale is thereafter transferred to the wife does not change the
status of the property so purchased as conjugal property of the deceased husband and wife. The reason for this ruling is the provision
of the Civil Code to the effect that properties acquired by husband and wife are conjugal properties. (Art. 1401, Civil Code of Spain). The
provision of the Friar Lands Act to the effect that upon the death of the husband the certificate of sale is transferred to the name of the
wife is merely an administrative device designed to facilitate the documentation of the transaction and the collection of installments; it
does not produce the effect of destroying the character as conjugal property of the lands purchased. Hence, the issuance of the title,
after completion of the installments, in the name of the widow does not make the friar lands purchased her own paraphernal property.
The said lands, notwithstanding a certificate of sale, continue to be the conjugal property of her deceased husband and herself.
The case of Arayata vs. Joya, et al., 51 Phil. 654, cited by the movants, is not applicable to the case at bar because it refers to the
superior rights of the widow recognized in Section 16 of Act No. 1120 over transfers made by the husband which have not been
approved by the Director of Lands. As a matter of fact the syllabus in said case is as follows:

52

Widow's rights. The widow of a holder of a certificate of sale of friar lands acquired by the Government has an exclusive right to said
lands and their fruits from her husband's death, provided that the deceased has not conveyed them to another during his lifetime and
she fulfills the requirements prescribed by the law for the purchase of the same.
A minor ground for the reconsideration is that the decision of Judge Lucero, having been set aside by the Court of Appeals, could not be
affirmed by Us. The setting aside of the said decision was due to the fact that newly discovered evidence was found regarding the
partition of the estate of the deceased. The setting aside of the decision was not aimed or directed at the judge's ruling that the
properties acquired by the husband during his lifetime from the friar lands estate were conjugal properties of the husband and the
wife..
The third ground raised is that the lots were never partitioned as conjugal assets of Mariano Trias and Maria C. Ferrer. One of the
arguments adduced in favor of the claim of the movants that the properties in question, which were acquired during the lifetime of
Mariano Trias, were never partitioned is that, according to the records of the Register of Deeds and according to the friar lands agents,
the alleged partition of the said properties as conjugal properties of the deceased Mariano Trias and Maria C. Ferrer had not been
registered in said offices. The failure to make the registration is perhaps due to the neglect the heirs. The fact, however, remains that
the exhibits presented in Court, especially Exhibit "3-Trias" and Annex "E", which are the project of partition and the approval thereof,
cannot be ignored by this Court. The neglect of the parties in not actually partitioning the properties do not argue in favor of the fact
that partition was not a actually decreed. Adjudications may be made pro indiviso without actual division or partition of the properties
among the heirs.
WHEREFORE, the motion for reconsideration is hereby denied and the judgment rendered declared final. So ordered.

1 Tolentino 222-269
1. Kinds of Requisites, FC 2, 3, 5; cf. NCC 53
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;

53

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing
officer and their personal declaration that they take each other as husband and wife in the presence of not less than
two witnesses of legal age.
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage.

Art. 53. No marriage shall be solemnized unless all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character.

2. Kinds of Non-Compliance
3. Effect of Non-Compliance
4. Essential Requisites
a. Legal Capacity
a. Gender, FC 2 (1)
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1)
Legal capacity of the contracting parties who must be a male and a female...
b. Age, FC 5, 35 (1), RA 6809, NCC 54 & 80 (1)
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract marriage.

54

Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or
guardians;...
--- See RA 6809--Art. 54. Any male of the age of sixteen years or upwards, and any female of the age of fourteen years or
upwards, not under any of the impediments mentioned in Articles 80 to 84, may contract marriage.
Art. 80. The following marriages shall be void from the beginning:
(1) Those contracted under the ages of sixteen and fourteen years by the male and female respectively,
even with the consent of the parents...
c. Parental Consent, FC 14, 45, NCC 61 & 85 (1)
Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage,
are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving
parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be
manifested in writing by the interested party, who personally appears before the proper local civil registrar, or
in the form of an affidavit made in the presence of two witnesses and attested before any official authorized
by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage
license, and the affidavit, if one is executed instead, shall be attached to said applications.

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or
person having substitute parental authority over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the
other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge
of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

55

(5) That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be
incurable.
Art. 61. In case either of the contracting parties is a widowed or divorced person, the same shall be required
to furnish, instead of the baptismal or birth certificate required in the last preceding article, the death
certificate of the deceased spouse or the decree of the divorce court, as the case may be. In case the death
certificate cannot be found, the party shall make an affidavit setting forth this circumstance and his or her
actual civil status and the name and the date of the death of the deceased spouse.
In case either or both of the contracting parties, being neither widowed nor divorced, are less than twenty
years of age as regards the male and less than eighteen years as regards the female, they shall, in addition to
the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage, of
their father, mother or guardian, or persons having legal charge of them, in the order mentioned. Such
consent shall be in writing, under oath taken with the appearance of the interested parties before the proper
local civil registrar or in the form of an affidavit made in the presence of two witnesses and attested before
any official authorized by law to administer oaths.
Art. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was between the ages of
sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and
the marriage was solemnized without the consent of the parent, guardian or person having authority
over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such
party freely cohabited with the other and both lived together as husband and wife;

---Sison v Te Jay Li--b. Consent Freely Given

a. Mistake as to identity, FC 35 (5), NCC 86 (1)
Art. 35. The following marriages shall be void from the beginning:

56

......
(5) Those contracted through mistake of one contracting party as to the identity of the other;
.....
Art. 86. Any of the following circumstances shall constitute fraud referred to in Number 4 of the preceding
article:
(1) Misrepresentation as to the identity of one of the contracting parties;
b. Insanity, FC 45 (2)
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
....
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the
other as husband and wife;
c. Fraud, FC 45 (3), NCC 1338-1344
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
...
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge
of the facts constituting the fraud, freely cohabited with the other as husband and wife;
Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the
other is induced to enter into a contract which, without them, he would not have agreed to. (1269)
Art. 1339. Failure to disclose facts, when there is a duty to reveal them, as when the parties are bound by
confidential relations, constitutes fraud. (n)
Art. 1340. The usual exaggerations in trade, when the other party had an opportunity to know the facts, are
not in themselves fraudulent. (n)
Art. 1341. A mere expression of an opinion does not signify fraud, unless made by an expert and the other
party has relied on the former's special knowledge. (n)
Art. 1342. Misrepresentation by a third person does not vitiate consent, unless such misrepresentation has
created substantial mistake and the same is mutual. (n)

57

Art. 1343. Misrepresentation made in good faith is not fraudulent but may constitute error. (n)
Art. 1344. In order that fraud may make a contract voidable, it should be serious and should not have been
employed by both contracting parties.
d. Force, Intimidation and Undue Influence, FC 45 (4), NCC 1335-1337
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
....
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
Art. 1335. There is violence when in order to wrest consent, serious or irresistible force is employed.
There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear
of an imminent and grave evil upon his person or property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate
consent. (1267a)
Art. 1336. Violence or intimidation shall annul the obligation, although it may have been employed by a third
person who did not take part in the contract. (1268)
Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be
considered: the confidential, family, spiritual and other relations between the parties, or the fact that the
person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in
financial distress. (n)
e. Physical Incapacity, FC 45 (5)
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

58

....
(5) That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable;
f.

Affliction with STD, FC 45 (6)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
.....
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be
incurable.

5. Formal Requisites
a. Authority of the Solemnizing Officer
i. Who are Authorized
FC 7, 10, 31 & 32
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church
or religious sect and registered with the civil registrar general, acting within the limits of the written
authority granted by his church or religious sect and provided that at least one of the contracting
parties belongs to the solemnizing officer's church or religious sect;
(3)

Any

ship

captain

or

airplane

chief

only

in

the

case

mentioned

in

Article

31;

(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.

59

Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or viceconsul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local
civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed
by said consular official.
Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during
stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons within the zone of military operation, whether
members of the armed forces or civilians.

NCC 56, 74, 76

Art. 56. Marriage may be solemnized by:
(1) The Chief Justice and Associate Justices of the Supreme Court;
(2) The Presiding Justice and the Justices of the Court of Appeals;
(3) Judges of the Courts of First Instance;
(4) Mayors of cities and municipalities;
(5) Municipal judges and justices of the peace;
(6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or sect, duly
registered, as provided in Article 92; and
(7) Ship captains, airplane chiefs, military commanders, and consuls and vice-consuls in special
cases provided in Articles 74 and 75.

60

Art. 74. A marriage in articulo mortis may also be solemnized by the captain of a ship or chief of an airplane
during a voyage, or by the commanding officer of a military unit, in the absence of a chaplain, during war.
The duties mentioned in the two preceding articles shall be complied with by the ship captain, airplane
chief or commanding officer.
Art. 76. No marriage license shall be necessary when a man and a woman who have attained the age of
majority and who, being unmarried, have lived together as husband and wife for at least five years, desire
to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The official, priest or minister who solemnized the marriage
shall also state in an affidavit that he took steps to ascertain the ages and other qualifications of the
contracting parties and that he found no legal impediment to the marriage.

1991 Local Government Code, Sec 444 (b) (1)(xviii) and 455 (b)(1)(xviii)
Section 444.The Chief Executive: Powers, Duties, Functions and Compensation.
....
(b) For efficient, effective and economical governance the purpose of which is the general welfare of the
municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall:
(1) Exercise general supervision and control over all programs, projects, services, and activities of
the municipal government, and in this connection, shall:
.......
(xviii) Solemnize marriages, any provision of law to the contrary notwithstanding;

Section 455.Chief Executive; Powers, Duties and Compensation.

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the
city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall:

61

(1) Exercise general supervision and control over all programs, projects, services, and activities of
the city government. and in this connection, shall:
.....
(xviii) Solemnize marriage, any provision of law to the contrary notwithstanding;

ii. How Authorized

FC 7(2)
Art. 7. Marriage may be solemnized by:
....
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or
religious sect and registered with the civil registrar general, acting within the limits of the written
authority granted by his church or religious sect and provided that at least one of the contracting parties
belongs to the solemnizing officer's church or religious sect;

G.R. No. L-8014

March 14, 1955

PEDRO V. VILAR, petitioner-appellant,

vs.
GAUDENCIO V. PARAISO, respondent-appellant.
Claro M. Recto and Jose Nava for petitioner-appellant.
Josefina R. Phodaca and Naomi P. Salvador for respondent-appellant.
BAUTISTA ANGELO, J.:

62

In the general elections held on November 13, 1951, Pedro V. Vilar and Gaudencio V. Paraiso were among the candidates registered and voted
for the office of mayor of Rizal, Nueva Ecija. after the canvass was made, Vilar obtained 1,467 votes while Paraiso garnered 1,509, and as a
result the municipal board of canvassers proclaimed the latter as the mayor duly elected with a plurality of 41 votes. However, contending
that Paraiso was ineligible to hold office as mayor because he was then a minister of the United Church of Christ in the Philippines and such
was disqualified to be a candidate under section 2175 of the Revised Administrative Code, Vilar instituted the present quo warranto
proceedings praying that Paraiso be declared ineligible to assume office and that his proclamation as mayor-elect be declared null and void.
He also prayed that he be declared duly elected mayor of Rizal, Nueva Ecija, in lieu of respondent Paraiso.
Respondent in his answer denied his ineligibility and claimed that he resigned as minister of the United Church of Christ in the Philippines on
August 21, 1951, that his resignation was accepted by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951,
and that even if respondent was not eligible to the office, petitioner could not be declared elected to take his place.
After due trial, the court found respondent to be ineligible for the office of mayor, being an ecclesiastic, and, consequently, it declared his
proclamation as mayor null and void, but refrained from declaring petitioner as mayor-elect for lack of sufficient legal grounds to do so. from
this election both parties have appealed, respondent from that portion finding him ineligible, and petitioner from that portion holding he
cannot be declared elected as mayor for lack of sufficient legal grounds to do so.
The case was originally taken to the Court of Appeals. However, as the latter court found that while petitioner raises in his brief only questions
of law respondent raises both questions of law and fact, and both appeals are indivisible in that they pertain to only one case, that court
resolved to certify it to this Court pursuant to the provisions of sections 17 and 31 of the Judiciary Act of 1948, upon the theory that one of the
appeals is exclusively cognizable by the Supreme Court.
The only issue before us is whether respondent, being an ecclesiastic, is ineligible to hold office under section 2175 of the Revised
Administrative Code, or whether he actually resigned as minister before the date of the elections, and his resignation duly accepted, as
claimed, thereby removing his disability. As may be noted, this is a question of fact the determination of which much depends upon the
credibility and weight of the evidence of both parties.
The evidence for petitioner tends to show that respondent was ordained as minister of the Evangelical Church of the Philippines in 1944 and as
such was given license to solemnize marriages by the Bureau of Public Libraries; that since 1944 up to 1950 he acted as minister in the town
of Rizal, Nueva Ecija, continuously and without interruption and has been renewing his license to solemnize marriages as prescribed by the
regulations of the Bureau of Public Libraries; that on April 19, 1950, respondent transferred to the United Church of Christ in the Philippines,
having been assigned to work in the same place and chapel during the years 1944-1950; that on April 7, 1951, respondent applied for, and
was issued, a license to solemnize marriages by the Bureau of Public Libraries as minister of the new church up to the end of April, 1952; that
said license has never been cancelled, as neither the head of the united church nor respondent has requested for its cancellation; and that
respondent has been publicly known as minister of the United Church of Christ, but he has not attached to his certificate of candidacy a copy
of his alleged resignation as minister.

63

The evidence for the respondent, on the other hand, tends to show that while he was formerly a minister of the United of Christ in the
Philippines, he, however, filed his resignation as such minister on August 21, 1951, because of his desire to engage in politics; that said
resignation was accepted by the cabinet of his church at a special meeting held in Polo, Bulacan on August 27, 1951; that respondent turned
over his chapel and his office to the elder members of his religious order on August 21, 1951, and since then he considered himself separated
from his order and in fact he has refrained ever since from conducting any religious services pertaining to that order.
Which of these versions is correct?
After careful examining the evidence of record, and after weighing its credibility and probative value, we have not found any reason for
deviating from the finding of the trial court that respondent never ceased as minister of the order to which he belonged and that the
resignation he claims to have filed months before the date of the elections is but a mere scheme to circumvent the prohibition of the law
regarding ecclesiastics who desire to run for a municipal office. Indeed, if respondent really and sincerely intended to resign as minister of the
religious organization to which he belonged for the purpose of launching his candidacy why did he not resign in due form and have the
acceptance of his resignation registered with the Bureau of Public Libraries. 1 The importance of resignation cannot be underestimated. The
purpose of registration is two-fold: to inform the public not only of the authority of the minister to discharge religious functions, but equally to
keep it informed of any change in his religious status. This information is necessary for the protection of the public. This is specially so with
regard to the authority to solemnized marriages, the registration of which is made by the law mandatory (Articles 92-96, new Civil Code). It is
no argument to say that the duty to secure the cancellation of the requisite resignation devolves, not upon respondent, but upon the head of
his organization or upon the official in charge of such registration, upon proper showing of the reason for such cancellation, because the law
likewise imposes upon the interested party the duty of effecting such cancellation, who in the instant case is the respondent himself. This he
failed to do. And what is more, he failed to attach to his certificate of candidacy, a copy of his alleged resignation as minister knowing full well
that a minister is disqualified by law to run for a municipal office.
It is true that respondent attempted to substantiate his claim by submitting as evidence certain documents purporting to show the alleged
resignation and its acceptance by the cabinet of his church at a meeting held on August 27, 1951, but, considering said documents in the light
of the shortcomings we have pointed out above, one cannot help but brand them as self-serving or as documents merely prepared to serve
the political designs of respondent in an attempt to obviate his disqualification under the law. And this feeling appears strengthened if we
examine the so-called minute book wherein, according to witness Jose Agpalo, are entered the minutes of all the meeting of the church,
because upon an examination thereof one would at once get the impression that it was prepared haphazardly and not with such seriousness
and solemnity that should characterize the religious activities of a well established religious order. As the trial court aptly remarked "All these
lead the court to believe with the petitioner, that the supposed resignation and acceptance were made at a later date to cure the ineligibility of
the respondent." We are therefore constrained to hold that respondent is disqualified to hold the office of mayor as found by the trial court.
As to the question whether, respondent being ineligible, petitioner can be declared elected, having obtained second place in the elections, our
answer is simple: this Court has already declared that this cannot be done in the absence of an express provision authorizing such declaration.
Our law not only does not contain any such provision but apparently seems to prohibit it. This is what we said in at least two cases where we
laid down a ruling which is decisive of the present case.

64

. . . . In the first case when the person elected is ineligible, the court cannot declare that the candidate occupying the second place has
been elected, even if he were eligible, since the law only authorizes a declaration of election in favor of the person who has obtained a
plurality of votes, and has presented his certificate of candidacy. (Nuval vs. Guray, 52 Phil., 645.)
Section 173 of Republic Act No. 180 known as the Revised Election Code, does not provide that if the contestee is declared ineligible
the contestant will be proclaimed. Indeed it may be gathered that the law contemplates no such result, because it permits the filing of
the contest by any registered candidate irrespective of whether the latter occupied the next highest place or the lowest in the election
returns. (Llamoso vs. Ferrer, et al., 84 Phil., 489, 47 Off. Gaz., [No. 2] p. 727.)
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

MERCEDITA MATA ARAES, petitioner, vs. JUDGE SALVADOR M. OCCIANO, respondent.

DECISION
PUNO, J.:

65

Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance of the Law via a sworn Letter-Complaint dated 23 May 2001.
Respondent is the Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur. Petitioner alleges that on 17 February 2000,
respondent judge solemnized her marriage to her late groom Dominador B. Orobia without the requisite marriage license and at Nabua,
Camarines Sur which is outside his territorial jurisdiction.
They lived together as husband and wife on the strength of this marriage until her husband passed away. However, since the marriage was a
nullity, petitioners right to inherit the vast properties left by Orobia was not recognized. She was likewise deprived of receiving the pensions
of Orobia, a retired Commodore of the Philippine Navy.
Petitioner prays that sanctions be imposed against respondent judge for his illegal acts and unethical misrepresentations which allegedly
caused her so much hardships, embarrassment and sufferings.
On 28 May 2001, the case was referred by the Office of the Chief Justice to then Acting Court Administrator Zenaida N. Elepao for appropriate
action. On 8 June 2001, the Office of the Court Administrator required respondent judge to comment.
In his Comment dated 5 July 2001, respondent judge averred that he was requested by a certain Juan Arroyo on 15 February 2000 to
solemnize the marriage of the parties on 17 February 2000. Having been assured that all the documents to the marriage were complete, he
agreed to solemnize the marriage in his sala at the Municipal Trial Court of Balatan, Camarines Sur. However, on 17 February 2000, Arroyo
informed him that Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan which is located almost 25 kilometers
from his residence in Nabua. Arroyo then requested if respondent judge could solemnize the marriage in Nabua, to which request he acceded.
Respondent judge further avers that before he started the ceremony, he carefully examined the documents submitted to him by petitioner.
When he discovered that the parties did not possess the requisite marriage license, he refused to solemnize the marriage and suggested its
resetting to another date. However, due to the earnest pleas of the parties, the influx of visitors, and the delivery of provisions for the
occasion, he proceeded to solemnize the marriage out of human compassion. He also feared that if he reset the wedding, it might aggravate
the physical condition of Orobia who just suffered from a stroke. After the solemnization, he reiterated the necessity for the marriage license
and admonished the parties that their failure to give it would render the marriage void. Petitioner and Orobia assured respondent judge that
they would give the license to him in the afternoon of that same day. When they failed to comply, respondent judge followed it up with Arroyo
but the latter only gave him the same reassurance that the marriage license would be delivered to his sala at the Municipal Trial Court of
Balatan, Camarines Sur.
Respondent judge vigorously denies that he told the contracting parties that their marriage is valid despite the absence of a marriage license.
He attributes the hardships and embarrassment suffered by the petitioner as due to her own fault and negligence.
On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August 2001 with the Office of the Court Administrator. She
attested that respondent judge initially refused to solemnize her marriage due to the want of a duly issued marriage license and that it was
because of her prodding and reassurances that he eventually solemnized the same. She confessed that she filed this administrative case out
of rage. However, after reading the Comment filed by respondent judge, she realized her own shortcomings and is now bothered by her
conscience.
Reviewing the records of the case, it appears that petitioner and Orobia filed their Application for Marriage License on 5 January 2000. It was
stamped in this Application that the marriage license shall be issued on 17 January 2000. However, neither petitioner nor Orobia claimed it.

66

It also appears that the Office of the Civil Registrar General issued a Certification that it has no record of such marriage that allegedly took
place on 17 February 2000. Likewise, the Office of the Local Civil Registrar of Nabua, Camarines Sur issued another Certification dated 7 May
2001 that it cannot issue a true copy of the Marriage Contract of the parties since it has no record of their marriage.
On 8 May 2001, petitioner sought the assistance of respondent judge so the latter could communicate with the Office of the Local Civil
Registrar of Nabua, Camarines Sur for the issuance of her marriage license. Respondent judge wrote the Local Civil Registrar of Nabua,
Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office, Grace T. Escobal, informed respondent judge that their office cannot issue
the marriage license due to the failure of Orobia to submit the Death Certificate of his previous spouse.
The Office of the Court Administrator, in its Report and Recommendation dated 15 November 2000, found the respondent judge guilty of
solemnizing a marriage without a duly issued marriage license and for doing so outside his territorial jurisdiction. A fine of P5,000.00 was
recommended to be imposed on respondent judge.
We agree.
Under the Judiciary Reorganization Act of 1980, or B.P.129, the authority of the regional trial court judges and judges of inferior courts to
solemnize marriages is confined to their territorial jurisdiction as defined by the Supreme Court.
The case at bar is not without precedent. In Navarro vs. Domagtoy,i[1]respondent judge held office and had jurisdiction in the Municipal
Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. However, he solemnized a wedding at his residence in the municipality of Dapa,
Surigao del Norte which did not fall within the jurisdictional area of the municipalities of Sta. Monica and Burgos. We held that:
A priest who is commissioned and allowed by his local ordinance to marry the faithful is authorized to do so only within the area or diocese or
place allowed by his Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to solemnize
marriages, regardless of the venue, as long as the requisites of the law are complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge solemnizes a marriage outside
his courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which while it may not
affect the validity of the marriage, may subject the officiating official to administrative liability.ii[2] (Emphasis supplied.)
In said case, we suspended respondent judge for six (6) months on the ground that his act of solemnizing a marriage outside his jurisdiction
constitutes gross ignorance of the law. We further held that:
The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they are sworn to apply, more than the
ordinary laymen. They should be skilled and competent in understanding and applying the law. It is imperative that they be conversant with
basic legal principles like the ones involved in the instant case. x x x While magistrates may at times make mistakes in judgment, for which
they are not penalized, the respondent judge exhibited ignorance of elementary provisions of law, in an area which has greatly prejudiced the
status of married persons.iii[3]
In the case at bar, the territorial jurisdiction of respondent judge is limited to the municipality of Balatan, Camarines Sur. His act of solemnizing
the marriage of petitioner and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to administrative liability. His act
may not amount to gross ignorance of the law for he allegedly solemnized the marriage out of human compassion but nonetheless, he cannot
avoid liability for violating the law on marriage.

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Respondent judge should also be faulted for solemnizing a marriage without the requisite marriage license. In People vs. Lara,iv[4] we held
that a marriage which preceded the issuance of the marriage license is void, and that the subsequent issuance of such license cannot render
valid or even add an iota of validity to the marriage. Except in cases provided by law, it is the marriage license that gives the solemnizing
officer the authority to solemnize a marriage. Respondent judge did not possess such authority when he solemnized the marriage of petitioner.
In this respect, respondent judge acted in gross ignorance of the law.
Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by petitioner. This Court has consistently held in a catena of
cases that the withdrawal of the complaint does not necessarily have the legal effect of exonerating respondent from disciplinary action.
Otherwise, the prompt and fair administration of justice, as well as the discipline of court personnel, would be undermined. v[5] Disciplinary
actions of this nature do not involve purely private or personal matters. They can not be made to depend upon the will of every complainant
who may, for one reason or another, condone a detestable act. We cannot be bound by the unilateral act of a complainant in a matter which
involves the Courts constitutional power to discipline judges. Otherwise, that power may be put to naught, undermine the trust character of a
public office and impair the integrity and dignity of this Court as a disciplining authority. vi[6]
WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur, is fined
P5,000.00pesos with a STERN WARNING that a repetition of the same or similar offense in the future will be dealt with more severely.
SO ORDERED.

iii. Effect of Absence of Authority

FC 4, 35 (2)

Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab
initio, except as stated in Article 35 (2).
Art. 35. The following marriages shall be void from the beginning:
.....
(2)Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;

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b. Marriage Ceremony
i. Form, FC 3(3), 6

Art. 3. The formal requisites of marriage are:

.....
(3) A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in
the presence of not less than two witnesses of legal age.
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to appear personally before the solemnizing officer and
declare in the presence of not less than two witnesses of legal age that they take each other as husband
and wife. This declaration shall be contained in the marriage certificate which shall be signed by the
contracting parties and their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party,
which fact shall be attested by the solemnizing officer.

G.R. No. L-4904

February 5, 1909

ROSALIA MARTINEZ, plaintiff-appellant,

vs.
ANGEL TAN, defendant-appellee.
Domingo Franco, for appellant.
Doroteo Karagdag, for appellee.
WILLARD, J.:

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The only question in this case is whether or not the plaintiff and the defendant were married on the 25th day of September, 1907, before the
justice of the peace, Jose Ballori, in the town of Palompon in the Province of Leyte.
There was received in evidence at the trial what is called an expediente de matrimonio civil. It is written in Spanish and consists, first, of a
petition directed to the justice of the peace, dated on the 25th of September, 1907, signed by the plaintiff and the defendant, in which they
state that they have mutually agreed to enter into a contract of marriage before the justice of the peace, and ask that the justice solemnize
the marriage. Following this is a document dated on the same day, signed by the justice of the peace, by the plaintiff, by the defendant, and
by Zacarias Esmero and Pacita Ballori. It states the presentation of the petition above mentioned; that the persons who signed it where
actually present in the office of the justice on the same day named; that they ratified under oath the contents of the petition, and that they
insisted in what they had there asked for. It also stated that being required to produce witnesses of the marriage, the presented Zacarias
Esmero as a witness for the husband and Pacita Ballori as a witness for the wife. Following this is a certificate of marriage signed by the justice
of the peace and the witnesses Zacarias Esmero and Pacita Ballori, dated the 25th day of September, 1907, in which it is stated that the
plaintiff and the defendant were legally married by the justice of the peace in the presence of the witnesses on that day.
The court below decided the case in favor of the defendant, holding that the parties were legally married on the day named. The evidence in
support of that decision is: First. The document itself, which the plaintiff admits that she signed. Second. The evidence of the defendant, who
testifies that he and said plaintiff appeared before the justice of the peace at the time named, together with the witness Zacarias Esmero and
Pacita Ballori, and that they all signed the document above mentioned. Third. The evidence of Zacarias Esmero, one of the above-named
witnesses, who testifies that the plaintiff, the defendant, and Pacita Ballori appeared before the justice at the time named and did sign the
document referred to. Fourth. The evidence of Pacita Ballori, who testified to the same effect. Fifth. The evidence of Jose Santiago, the bailiff of
the court of the justice of the peace, who testified that the plaintiff, the defendant, the two witnesses above-named, and the justice of the
peace were all present in the office of the justice of the peace at the time mentioned.
The only direct evidence in favor of the plaintiff is her own testimony that she never appeared before the justice of the peace and never was
married to the defendant. She admits that she signed the document in question, but says that she signed it in her own home, without reading
it, and at the request of the defendant, who told her that it was a paper authorizing him to ask the consent of her parents to the marriage.
There is some indirect evidence which the plaintiff claims supports her case, but which we think, when properly considered, is not entitled to
much weight. The plaintiff at the time was visiting, in the town of Palompon, her married brother and was there for about two weeks. The wife
of her brother, Rosario Bayot, testified that the plaintiff never left the house except in her company. But she admitted on cross-examination
that she herself went to school every morning and that on one occasion the plaintiff had gone to church unaccompanied. The testimony of this
witness loses its force when the testimony of Pacita Ballori is considered. She says that at the request of the defendant on the day named,
about 5 o'clock in the afternoon, she went to the store of a Chinese named Veles; that there she met the plaintiff and her mother; that she
asked the mother of the plaintiff to allow the plaintiff to accompany her, the witness, to her own house for the purpose of examining some
dress patterns; that the mother gave her consent and the two rights left the store, but instead of going to the house of the witness they went
directly to the office of the justice of the peace where the ceremony took place; that after the ceremony had taken place, one came advising
them that the mother was approaching, and that they thereupon hurriedly left the office of the justice and went to the house of Pacita Ballori,
where the mother later found them.

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The other testimony of the plaintiff relating to certain statements made by the justice of the peace, who died after the ceremony was
performed and before the trial, and certain statements made by Pacita Ballori, is not sufficient to overcome the positive testimony of the
witnesses for the defendant.
The other testimony of Pacita Ballori is severely criticized by counsel for the appellant in his brief. It appears that during her first examination
she was seized with an hysterical attack and practically collapsed at the trial. Her examination was adjourned to a future day and was
completed in her house where she was sick in bed. It is claimed by counsel that her collapse was due to the fact that she recognized that she
testified falsely in stating the office of the justice of the peace was at the time in the municipal building, when, in fact, it was in a private
house. We do not think that the record justifies the claim of the appellant. The statement as to the location of the office of the justice of the
peace was afterwards corrected by the witness and we are satisfied that she told the facts substantially as they occurred.
There is, moreover, in the case written evidence which satisfies us that the plaintiff was not telling the truth when she said she did not appear
before the justice of the peace. This evidence consists of eight letters, which the defendant claims were all written by the plaintiff. The plaintiff
admits that she wrote letters numbered 2 and 9. The authenticity of the others was proven. No. 9 is as follows:
ANGEL: Up to this time I did not see my father; but I know that he is very angry and if he be informed that we have been married civilly,
I am sure that he will turn me out of the house.
Do what you may deem convenient, as I don't know what to do.
Should I be able to go to-morrow to Merida, I shall do so, because I can not remain here.
Yours,

ROSAL.

Letter No. 6, which bears no date, but which undoubtedly was written on the morning of the 25th of September, is as follows:
Sr. D. ANGEL, TAN.
ANGEL: It is impossible for me to go to the house of Veles this morning because my sister in law will not let me go there; if it suits you, I
believe that this afternoon, about 5 or 6 o'clock, is the best hour.
Arrange everything, as I shall go there only for the purpose of signing, and have Pacita wait for me at the Chinese store, because I don't
like to go without Pacita.
The house must be one belonging to prudent people, and no one should know anything about it.
Yours,

ROSAL.

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It will be noticed that this corroborates completely the testimony of Pacita Ballori as to her meeting the plaintiff in the afternoon at the store of
the Chinese, Veles. Letter No. 7 is also undated, but was evidently written after the marriage before the justice of the peace. It is as follows:
Sr. D. ANGEL, TAN.
ANGEL: If you want to speak to my mother, who is also yours, come here by and by, at about 9 or 10, when you see that the tide is high
because my brother will have to go to the boat for the purpose of loading lumber.
Don't tell her that we have been civilly married, but tell her at first that you are willing to celebrate the marriage at this time, because I
don't like her to know to-day that we have been at the court-house, inasmuch as she told me this morning that she heard that we
would go to the court, and that we must not cause her to be ashamed, and that if I insist on being married I must do it right.
Tell her also that you have asked me to carry you.
I send you herewith the letter of your brother, in order that you may do what he wishes.
Yours,

ROSAL.

Letter No. 8 was also evidently written after the marriage and is in part as follows:
Sr. D. ANGEL TAN.
ANGEL: I believe it is better for you to go to Ormoc on Sunday of the steamer Rosa, for the purpose of asking my father's permission for
our marriage, and in case he fails to give it, then we shall do what we deem proper, and, if he does not wish us to marry without his
permission, you must request his consent.
Tell me who said that my sister in law knows that we are civilly married; my brother ill treatment is a matter of no importance, as every
thing may be carried out, with patience.
It was proven at the trial that the defendant did go to Ormoc on the steamer Rosa as indicated in this letter, and that the plaintiff was on the
same boat. The plaintiff testified, however, that she had no communication with the defendant during the voyage. The plaintiff and the
defendant never lived together as husband and wife, and upon her arrival in Ormoc, after consulting with her family, she went to Cebu and
commenced this action, which was brought for the purpose of procuring the cancellation of the certificate of marriage and for damages. The
evidence strongly preponderates in favor of the decision of the court below to the effect that the plaintiff appeared before the justice of the
peace at the time named.
It is claimed by the plaintiff that what took place before the justice of the peace, even admitting all that the witnesses for the defendant
testified to, did not constitute a legal marriage. General orders, No. 68, section 6, is as follows:

72

No particular form from the ceremony of marriage is required, but the parties must declare in the presence of the person solemnizing
the marriage, that they take each other as husband and wife.
Zacarias Esmero, one of the witnesses, testified that upon the occasion in question the justice of the peace said nothing until after the
document was signed and then addressing himself to the plaintiff and the defendant said, "You are married." The petition signed the plaintiff
and defendant contained a positive statement that they had mutually agreed to be married and they asked the justice of the peace to
solemnize the marriage. The document signed by the plaintiff, the defendant, and the justice of the peace, stated that they ratified under
oath, before the justice, the contents of the petition and that witnesses of the marriage were produced. A mortgage took place as shown by
the certificate of the justice of the peace, signed by both contracting parties, which certificates gives rise to the presumption that the officer
authorized the marriage in due form, the parties before the justice of the peace declaring that they took each other as husband and wife,
unless the contrary is proved, such presumption being corroborated in this case by the admission of the woman to the effect that she had
contracted the marriage certified to in the document signed by her, which admission can only mean the parties mutually agreed to unite in
marriage when they appeared and signed the said document which so states before the justice of the peace who authorized the same. It was
proven that both the plaintiff and the defendant were able to read and write the Spanish language, and that they knew the contents of the
document which they signed; and under the circumstances in this particular case were satisfied, and so hold, that what took place before the
justice of the peace on this occasion amounted to a legal marriage.
The defendant's original answer was a general denial of the allegations contained in the complaint. Among these allegations was a statement
that the parties had obtain previously the consent of the plaintiff's parents. The defendant was afterwards allowed to amend his answer so
that it was a denial of the allegations of the complaint except that relating to the condition in regard to the consent of the parents. The plaintiff
objected to the allowance of this amendment. After the trial had commenced the defendant was again allowed to amend his answer so that it
should be an admission of paragraphs 2 and 3 of the complaint, except that part which related to the consent of the parents. It will be seen
that this second amendment destroyed completely the first amendment and the defendants lawyer stated that what he intended to allege in
his first amendment, but by reason of the haste with which the first amendment was drawn he had unintentionally made it exactly the
opposite of what he had intended to state. After argument the court allowed the second amendment. We are satisfied that in this allowance
there was no abuse of discretion and we do not see how the plaintiff was in any way prejudiced. She proceeded with the trial of the case
without asking for a continuance.
The judgment of the court below acquitting the defendant of the complaint is affirmed, with the costs of this instance against the appellant.

ii. Place, FC 8, 28-29, 32-33

73

Article. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the
church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and
not elsewhere, except in cases of marriages contracted on the point of death or in remote places in
accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in
writing in which case the marriage may be solemnized at a house or place designated by them in a sworn
statement to that effect.
Art. 28. If the residence of either party is so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar, the marriage may be solemnized without
necessity of a marriage license. (72a)
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an
affidavit executed before the local civil registrar or any other person legally authorized to administer oaths
that the marriage was performed in articulo mortis or that the residence of either party, specifying the
barrio or barangay, is so located that there is no means of transportation to enable such party to appear
personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages
and relationship of the contracting parties and the absence of legal impediment to the marriage.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons within the zone of military operation, whether
members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be
performed validly without the necessity of marriage license, provided they are solemnized in accordance
with their customs, rites or practices.

iii. Marriage Certificate, FC 6, 22

Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be
necessary, however, for the contracting parties to appear personally before the solemnizing officer and
declare in the presence of not less than two witnesses of legal age that they take each other as husband
and wife. This declaration shall be contained in the marriage certificate which shall be signed by the
contracting parties and their witnesses and attested by the solemnizing officer.

74

In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage
certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party,
which fact shall be attested by the solemnizing officer.
Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband
and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriage provided
for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in appropriate
cases;
(6) That either or both of the contracting parties have complied with the legal requirement regarding
parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof.

75

G.R. No. L-32473

October 6, 1930

MELECIO MADRIDEJO, assisted by his guardian ad litem, Pedro Madridejo, plaintiff-appellee,

vs.
GONZALO DE LEON, ET AL., defendants-appellants.
L. D. Abaya and S. C. Pamatmat for appellants.
Aurelio Palileo for appellee.

VILLA-REAL, J.:
This is a rehearsing of the appeal taken by the defendants, Gonzalo de Leon et al. from the judgment of the Court of First Instance of Laguna
holding as follows:
Wherefore, the court finds that Melecio Madridejo is Domingo de Leon's next of kin, and hereby orders the defendants in case No. 5258
to restore and deliver the ownership and possession of the property described in the complaints filed in the aforesaid case, to Melecio
Madridejo, without cost. So ordered.
In support of their appeal the defendants assign the following alleged errors as committed by the trial court, to wit:
1. The lower court erred in holding that the marriage between Pedro Madridejo and Flaviana Perez is valid.
2. The lower court also erred in declaring that solely because of the subsequent marriage of his parents, the appellee Melecio
Madridejo, a natural child, was legitimated.
3. The lower court lastly erred in not rendering judgment in favor of the defendants and appellants.
The relevant facts necessary for the decision of all the questions of fact and of law raised herein are as follows:
Eulogio de Leon and Flaviana Perez, man and wife, had but one child, Domingo de Leon. The wife and son survived Eulogio de Leon, who died
in the year 1915. During her widowhood, Flaviana Perez lived with Pedro Madridejo, a bachelor. The registry of births of the municipality of
Siniloan, Laguna, shows that on June 1, 1917, a child was born to Pedro Madridejo and Flaviana Perez, which was named Melecio Madridejo,
the necessary data being furnished by Pedro Madridejo (Exhibit B). On June 17, 1917, a 24-day old child of Siniloan, Laguna, as a son of
Flaviana Perez, no mention being made of the father (Exhibit 2). On July 8, 1920, Flaviana Perez, being at death's door, was married to Pedro
Madridejo, a bachelor, 30 years of age, by the parish priest of Siniloan (Exhibit A). She died on the following day, July 9, 1920, leaving Domingo

76

de Leon, her son by Eulogio de Leon, and the plaintiff-appellee Melecio Madridejo, as well as her alleged second husband, Pedro Madridejo.
Domingo de Leon died on the 2nd of May, 1928.
With regard to the first assignment of error, the mere fact that the parish priest of Siniloan, Laguna, who married Pedro Madridejo and Flaviana
Perez, failed to send a copy of the marriage certificate to the municipal secretary does not invalidate the marriagein articulo mortis, it not
appearing that the essential requisites required by law for its validity were lacking in the ceremony, and the forwarding of a copy of the
marriage certificate is not one of said essential requisites.
Touching the second assignment of error, there has been no attempt to deny that Melecio Madridejo, the plaintiff-appellee, is the natural son
of the Pedro Madridejo and Flaviana Perez, The only question to be decided is whether the subsequent marriage of his parents legitimated him.
Article 121 of the Civil Code provides:
Art. 121. Children shall be considered as legitimated by a subsequent marriage only when they have been acknowledged by the
parents before or after the celebration thereof.
According to this legal provision, in order that a subsequent marriage may be effective as a legitimation, the natural children born out of
wedlock must have been acknowledged by the parents either before or after its celebration. The Civil Code has established two kinds of
acknowledgment: voluntary and compulsary. Article 131 provides for the voluntary acknowledgment by the father or mother as follows:
Art. 131. The acknowledgment of a natural child must be made in the record of birth, in a will, or in some other public document.
Article 135 provides for the compulsary acknowledgment by the father, thus:
Art. 135. The father may be compelled to acknowledge his natural child in the following cases:
1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence.
2. When the child has been in the uninterrupted possession of the status of a natural child of the defendant father, justified by the
conduct of the father himself of that of his family.
3. In cases of rape, seduction, or abduction, the provisions of the Penal Code with regard to the acknowledgment of the issue, shall be
observed.
Article 136 providing for the compulsory acknowledgment by the mother, reads:
Art. 136. The mother may be compelled to acknowlegde her natural child:

77

1. When the child is, with respect to the mother, included in any of the cases mentioned in the next preceding article.
2. When the fact of the birth and the identity of the child are fully proven.
Let us see whether the plaintiff-appellee, Melecio Madridejo, has been acknowledged by his parents Pedro Madridejo and Flaviana Perez, under
any of the provisions above quoted.
To begin with the father, no document has been adduced to show that he has voluntarily acknowledged Melecio Madridejo as his son, except
the registry certificate of birth, Exhibit B. This, of course, is not the record of birth mentioned in the law, for it lacks the requisites of article 48
of the Law of Civil Registry. It, no doubt, is a public instrument, but it has neither been executed nor signed by Pedro Madridejo, and contains
no statement by which he acknowledges Melecio Madridejo to be his son. Although as Pedro Madridejo testified, he furnished the municipal
secretary of Siniloan with necessary data for recording the birth of Melecio Madridejo, and although said official inscribed the data thus given
in the civil registry of births, this is not sufficient to bring it under the legal provision regarding acknowledgment by a public document.
As to the mother, it does not appear that Flaviana Perez supplied the data set forth in the civil registry of births, Exhibit B, or in the baptismal
register, where of Exhibit 2 is a certificate, and which constitutes final proof only of the baptism, and not of the kinship or parentage of the
person baptized (Adriano vs. De Jesus, 23 Phil., 350). Furthermore, church registers of baptism are no longer considered public documents
(United States vs. Evangelista, 29 Phil., 215).
Melecio Madridejo, then, was not voluntarily acknowledged by Pedro Madridejo or Flaviana Perez, either before or after their marriage. 1awph!
l.net
Did Pedro Madridejo acknowledge Melecio Madridejo as his son, by compulsion?
The compulsory acknowledgment by the father established in article 135 of the Civil Code, and by the mother according to article 136,
requires that the natural child take judicial action against the father or mother, or against the persons setting themselves up as the heirs of
both, for the purpose of compelling them to acknowledge him as a natural son through a judgment of the court.
In the instant action brought by Melecio Madridejo not only has he not demanded to be acknowledged as a natural child, which is the condition
precedent to establishing his legitimation by the subsequent marriage and his right to the estate of his uterine brother, Domingo de Leon, but
he has not even impleaded either his father Pedro Madridejo, or the heirs of his mother, Flaviana Perez, in order that the court might have
authority to make a valid and effective pronouncement of his being a natural child, and to compel them to acknowledge him as such.
The plaintiff-appellee alleges that the second paragraph of the defendants' answer amounts to an admission that he is indeed Flaviana Perez's
son, and relieves him of the burden of proving that his mother acknowledged him as a son before her marriage. Such an admission would have
been affective if the present action had been brought for the purpose of compelling Flaviana Perez or her heirs to acknowledge the appellee as
her son.

78

In view of the foregoing, it is evident that Melecio Madridejo has not been acknowledged by Pedro Madridejo and Flaviana Perez, either
voluntarily or by compulsion, before or after their marriage, and therefore said marriage did not legitimate him.
Wherefore, the judgment is reversed, the complaint dismissed, and the defendants absolved with costs against the appellee without prejudice
to any right he may have to establish or compel his acknowledgment as the natural son of Pedro Madridejo and Flaviana Perez. So ordered.
Avancea, C.J., Street, Malcolm, Villamor, Ostrand and Romualdez, JJ., concur.

Separate Opinions
JOHNS, J., dissenting:
I dissent and the judgment of the lower court should be affirmed.
iv. Duties of the Solemnizing Officer, FC 23-24
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting
parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and
triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar
of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar
to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall
retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the
original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the
solemnization of the marriage in place other than those mentioned in Article 8. (68a)
Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and
to administer oaths to all interested parties without any charge in both cases. The documents and
affidavits filed in connection with applications for marriage licenses shall be exempt from documentary
stamp tax.
v. Effect of Irregularity, FC 4
Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio,
except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage but the party or
parties responsible for the irregularity shall be civilly, criminally and administratively liable.

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