1

ARTICLE 712. Ownership is acquired by occupation and by intellectual acquiring and transmitting ownership or other real rights. Such as Articles
creation. Ownership and other real rights over property are acquired and 624,681,1434
transmitted by law, by donation, by testate and intestate succession, and
in consequence of certain contracts, by tradition. They may also be Tradition or Delivery
acquired by means of prescription
In matters of contracts, distinction must be made between “title” and
Ownership, under the Civil Code, is acquired through any of these modes: “mode” of acquiring ownership.
(1) occupation; (2) intellectual creation; (3) law; (4) donation; (5)
A mode is the legal means by which dominion or ownership is created,
succession; (6) tradition; and (7) prescription. Other real rights, on the
transferred or destroyed, but title is only the legal basis by which to affect
other hand, are acquired through any of the following modes: (1) law; (2)
dominion or ownership.
donation; (3) succession; (4) tradition and (5) prescription.2
(1) A mode requires not only the intention to acquire but also
Article 712 distinguishes between modes which are merely for acquisition
either a right previously vested over the thing on the part of
(e.g., occupation, intellectual creation and prescription) and modes which
the person who makes the transmission or the special
are for both acquisition and transmission of ownership (e.g., law,
condition or state of the thing to be transferred as the fact that
donation, succession and tradition).
they are res nullius; whereas, title requires mere intention. (2)
Under Article 712 of the Civil Code, the modes of acquiring ownership are A mode directly and immediately produces a real right;
generally classifi ed into two (2) classes, namely, the original mode and the whereas, title merely serves as a means and a pretext to that
derivative mode.3 acquisition. (3) Mode is the cause, while title is the means. (4)
Mode creates a real right, while title creates merely a personal
o original” when they result in the independent right.7
creation of a new right of ownership, when their
effect, therefore, is independent of the ownership of Contracts, under our laws, only constitute titles or rights to the transfer or
a defi nite third person. A person who acquires by acquisition of ownership, while delivery or tradition is the mode of
an original mode has no “auctor” or a person who accomplishing the same.8 Stated otherwise, ownership is transferred, not
has ownership and who transmits the same to a by contract alone, but by tradition or delivery. Non nudis pactis, sed
successor. Examples of original modes are traditione dominia rerum transferentur.
occupation, law, intellectual creation and acquisitive
delivery of a thing, therefore, constitutes a necessary and
prescription.
indispensable requisite for the purpose of acquiring the
o derivative mode,” on the other hand, is an
ownership of the same by virtue of a contract
acquisition which depends on the existence of the
right of a certain other person, called the auctor. sale is not a mode, but merely a title.11 Sale by itself
Examples of derivative modes are tradition, does not transfer or affect ownership; the most that
succession and donation sale does is to create the obligation to transfer
ownership. It is tradition or delivery, as a
Loss of Ownership
consequence of sale, that actually transfers
the various modes of losing ownership and other real rights are classifi ed ownership.12
either as voluntary — that which depends upon the will of the owner — or
Concept of Tradition; Requisites
involuntary — or that which is independent of the will of the owner.
Tradition (traditio) or delivery, as a mode of acquiring and transmitting
The voluntary modes are abandonment and alienation.
ownership and other real rights, refers to the transfer of possession
The involuntary modes, on the other hand, are the following: (1) the accompanied by an intention to transfer ownership or other real rights.
destruction of the thing, which may either be physical or juridical as when
the following requisites must be present: (1) pre-existence of the right to
the thing goes out of commerce; (2) revocatory acts, which may include
be transmitted in the estate of the grantor, the same being a derivative
the nullity, rescission, revocation or resolution of that which gave rise to
mode of acquiring ownership; (2) just cause or title (causa traditionis) for
the acquisition; (3) extinguishment by legal precept and in virtue of certain
the transmission, such as sale; (3) intention on the part of the grantor to
acts, by the owner or third persons (e.g., accession and acquisitive
grant and on the part of the grantee to acquire; (4) capacity to transmit
prescription); (4) extinguishment by judicial decree, such as confi rmation
(on the part of the grantor) and capacity to acquire (on the part of the
of a judicial sale as a result of levy on execution; and (5) extinguishment by
grantee); and (5) an act which gives it outward form, physically,
act of the State, such as confi scation of the effects and instruments of a
symbolically or legally.13
crime and expropriation for public use.4\
It is therefore a rule that ownership can never pass by the bare delivery of
Abandonment and Alienation
a thing, a bare delivery being, legally speaking, no tradition at all. No
rights may be waived or renounced, so long as the waiver is not contrary delivery can be tradition in the legal sense, unless it is accompanied by an
to law, public order, public policy, morals or good customs or it is not intention to transfer ownership, an intention which is expressed, as a rule,
prejudicial to a third person with a right recognized by law by some juristic act (causa traditionis) which precedes the tradition.

Abandonment is a unilateral act of the holder of the right which does not, in all forms of delivery, it is necessary that the act of delivery, whether
therefore, require its acceptance. But it requires, for its validity, that the constructive or actual, should be coupled with the intention of delivering
one renouncing it must have the legal capacity to do so and the same is the thing. The act, without the intention, is insuffi cient.
coupled with the intention to renounce the right.
Norkis Distributors, Inc. v. Court of Appeals
Alienation, on the other hand, involves the voluntary transfer of the right
In other words, the critical factor in the different modes of effecting
to another person, which may either be by acts mortis causa or by acts
delivery, which gives legal effect to the act, is the actual intention of the
inter vivos. It may either be onerous or gratuitous.
vendor to deliver, and its acceptance by the vendee. Without that
Law as Mode intention, there is no tradition

refers to those special legal provisions which directly vest ownership or Article 1496 of the Civil Code which provides that “in the absence of an
real rights in favor of certain persons, independently of the other modes of express assumption of risk by the buyer, the things sold remain at seller’s
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risk until the ownership thereof is transferred to the buyer,” is applicable Addison v. Felix and Tioco,
to this case, for there was neither an actual nor constructive delivery of
the thing sold, hence, the risk of loss should be borne by the seller, When there is no impediment whatever to prevent the thing sold passing
into the tenancy of the purchaser by the sole will of the vendor, symbolic
Kinds of Tradition delivery through the execution of a public instrument is suffi cient. But if,
notwithstanding the execution of the instrument, the purchaser cannot
(1) Real tradition; have the enjoyment and material tenancy of the thing and make use of it
(2) Constructive or feigned tradition himself or through another in his name, because such tenancy and
(3) Quasi-tradition; and enjoyment are opposed by the interposition of another will, then fi ction
(4) Tradition by operation of law yields to reality — the delivery has not been effected

Real Tradition Equatorial Realty Development, Inc. v. Mayfair Theater, Inc

akes place when the thing is placed in the control and possession of the Ownership of the thing sold is a real right, which the buyer acquires only
grantee, which if it is movable, is when the thing is transferred from hand upon delivery of the thing to him “in any of the ways specifi ed in Articles
to hand and, if immovable, by certain material and possessory acts by the 1497 to 1501, or in any other manner signifying an agreement that the
grantee in the presence and with the consent of the grantor, such as possession is transferred from the vendor to the vendee.” This right is
gathering fruits or entering upon the property which are generally called transferred, not by contract alone, but by tradition or delivery. Non nudis
taking possession pactis sed traditione dominia rerum transferantur. And there is said to be
delivery if and when the thing sold “is placed in the control and possession
In the Law on Sales, the thing sold is understood as delivered, when it is
of the vendee.” Thus, it has been held that while the execution of a public
placed in the control and possession of the vendee
instrument of sale is recognized by law as equivalent to the delivery of the
Constructive Tradition thing sold, such constructive or symbolic delivery, being merely
presumptive, is deemed negated by the failure of the vendee to take
delivery may likewise exists even when the change of possession is not actual possession of the land sold.
actual or material but represented by other signs or acts indicative
thereof, in which case the tradition is classifi ed as a constructive one. delivery means something in addition to the delivery of property or title; it
Constructive delivery may take place through any of the following ways: means transfer of possession. In the Law on Sales, delivery may be either
(1) traditio simbolica (symbolical tradition); (2) traditio longa manu; (3) actual or constructive, but both forms of delivery contemplate “the
traditio brevi manu; (4) traditio constitutum possessorium; and (5) absolute giving up of the control and custody of the property on the part
execution of public instrument. of the vendor, and the assumption of the same by the vendee.”

1. Traditio Simbolica - the transfer of ownership is effected The execution of a public instrument gives rise, therefore, only to a prima
by the delivery of symbols or things which represent facie presumption of delivery. Such presumption is destroyed when the
those to be delivered instrument itself expresses or implies that delivery was not intended; or
2. Traditio Longa Manu- the transfer of ownership is when by other means it is shown that such delivery was not effected,
effected by the grantor by simply pointing out to the because a third person was actually in possession of the thing. In the latter
grantee the things which are being transferred and which case, the sale cannot be considered consummated.
at the time must be within their sight.
Quasi-tradition and Tradition By Operation of Law
3. Traditio Brevi Manu- the grantee has already acquired
actual control or possession of the thing, as when the Quasi-tradition is used to indicate the transfer of rights or incorporeal
thing is leased to him. In this case, a mere declaration on things through the exercise of the rights by the grantee with the
the part of the grantor that the grantee shall now hold acquiescence of the grantor.
the thing which is already in his control and possession, as
owner, operates as a form of delivery Tradition by operation of law, on the other hand, comprises all those
4. Traditio Constitutum Possessorium - is the reverse of cases not covered by the previous modes of delivery and by which
traditio brevi manu. In the former, delivery is effected by tradition is effected solely by virtue of a legal precept.27
a mere declaration on the part of the transferor that he
will hold the thing for the transferee. This, of course, may Acquisitive Prescription
take place when the owner of the thing alienates it but
Prescription, in general, is a mode of acquiring (or losing) ownership and
continues possessing it under another contract or
other real rights through the lapse of time in the manner and under
capacity, as lessee for example
conditions laid down by law, namely, that the possession should be in the
Execution of Public Instrument concept of an owner, public, peaceful, uninterrupted and adverse

recognized by law as equivalent to the delivery of the thing which is the Possession is open when it is patent, visible, apparent, notorious and not
object of the contract. clandestine.

Under the Law on Sales, the execution of a public instrument of sale is It is continuous when uninterrupted, unbroken and not intermittent or
recognized as equivalent to the delivery of the thing sold.21 It has been occasional;
held, however, that the execution of a contract of sale as a form of
exclusive when the adverse possessor can show exclusive dominion over
constructive delivery is but a legal fi ction. It holds true only when there is
the land and an appropriation of it to his own use and benefit;
no impediment that may prevent the passing of the property from the
hands of the vendor into those of the vendee.22 When there is such and notorious when it is so conspicuous that it is generally known and
impediment, fi ction yields to reality — the delivery has not been effected. talked of by the public or he people in the neighborhood.
Stated otherwise, the execution of a public instrument gives rise only to The party who asserts ownership by adverse possession must prove the
a prima facie presumption of delivery. Such presumption is destroyed presence of the essential elements of acquisitive prescription
when the instrument itself expresses or implies that delivery was not
intended; or when by other means it is shown that such delivery was not Two Kinds: Ordinary and Extraordinary
effected, because a third person was actually in possession of the thing
 3

Ordinary acquisitive prescription requires possession of things in good (b) such positive acts of repudiation have been
faith and with just title for the time fi xed by law;34 without good faith and made known to the cestui que trust; and
just title, acquisitive prescription can only be extraordinary in character (c) the evidence thereon is clear and conclusive.53
4. The foregoing rule likewise applies to co-owners and co-
Possession is “in good faith” when there is a reasonable belief that the heirs with respect to the property owned in common
person from whom the thing is received has been the owner thereof and since co-ownership is a form of trust and every co-owner is a
could thereby transmit his ownership.3 trustee for the others.54 Hence, the rule is that no prescription
shall lie in favor of a co-owner or co-heirs as long as he
here is just title when the adverse claimant came into possession of the
expressly or impliedly recognizes the co-ownership.55
property through one of the modes recognized by law for the acquisition
of ownership or other real rights, but the grantor was not the owner or
5. In order to ripen into ownership, possession must be in the
could not transmit any right.37 Further, the law requires that the just title
concept of an owner (en concepto de dueño).56 Thus, mere
must be proved for purposes of prescription; it is never presumed.38
possession with a juridical title, such as by a usufructuary, a
Period of Prescription trustee, a lessee, an agent or a pledgee, not being in the
concept of an owner, cannot ripen into ownership by
1. Movable 2. Immovable acquisitive prescription, unless the juridical relation is fi rst
Ordinary – 4 yrs Ordinary – 10 yrs expressly repudiated and such repudiation has been
Extraordinary – 8 yrs Extraordinary – 30 yrs communicated to the other party.

In the computation of time necessary for prescription the following rules (6) Acts of possessory character executed due to license or by
shall be observed: mere tolerance of the owner would likewise be inadequate58
because possession, to constitute the foundation of a
(1) The present possessor may complete the period necessary for
prescription by tacking his possession to that of his grantor or prescriptive right, must be en concepto de dueño, or, to use the
predecessor-in-interest; common law equivalent of the term, that possession should be
adverse, if not, such possessory acts, no matter how long, do
(2) It is presumed that the present possessor who was also the possessor not start the running of the period of prescription.59 (
at a previous time, has continued to be in possession during the
intervening time, unless there is proof to the contrary; 7) Possession obtained through force or intimidation does not
also ripen into ownership because the law on acquisitive
(3) The fi rst day shall be excluded and the last day included.
prescription requires that the possession be peaceful.60

(8) Possessory acts which are executed clandestinely and

When Prescription Does Not Lie without the knowledge of the possessor does not likewise
ripen into ownership because the law on acquisitive
1. The rule is well-settled that prescription does not run against prescription requires that the possession be public.61
registered land.
Sec. 47 of PD No. 1529, otherwise known as the Property (9) Prescription does not run between husband and wife, even
Registration Decree, it is specifi cally provided that “no title to though there be a separation of property agreed upon in the
registered land in derogation of that of the registered owner marriage settlements or by judicial decree.62 Neither does
shall be acquired by prescription or adverse possession.” A prescription run between parents and children, during the
title, once registered, cannot be defeated even by adverse, minority or insanity of the latter, and between guardian and
open and notorious possession. ward during the continuance of the guardianship.63

2. Prescription, both acquisitive and extinctive does not run Capacity to Acquire Ownership By Acquisitive Prescription
against the State.
Hence, property of the State or any of its subdivisions which As a rule, persons who are capable of acquiring property or rights by other
are classifi ed as belonging to public dominion shall not be the legal modes may acquire the same by means of prescription.
object of prescription.Neither may acquisitive prescription be
invoked against the patrimonial property of the State. As a consequence if just title is required (as the case of ordinary acquisitive
prescription), the capacity to acquire property by prescription shall be the
3. There is a rule that a trustee cannot acquire by prescription same capacity required for the particular title in question.
the ownership of property entrusted to him, or that an action
Hence, if the just title is pursuant to a donation, the capacity
to compel a trustee to convey property registered in his name
required is that of the donee; if it is by succession, the capacity
in trust for the benefi t of the cestui que trust does not
to succeed; and if it is by contract, the capacity to enter into
prescribe, or that the defense of prescription cannot be set up
contracts. But if just title is not required (as in the case of
in an action to recover property held by a person in trust for
extraordinary prescription), the capacity for possession is
the benefi t of another, or that property held in trust can be
required.
recovered by the benefi ciary regardless of the lapse of time.5
That rule applies squarely to express trusts. The foregoing rule shall apply also to minors and other incapacitated
The basis of the rule is that the possession of a trustee is not persons. Hence, for purposes of ordinary prescription where just title is
adverse. Not being adverse, he does not acquire by prescription required, the capacity to acquire property by prescription shall be the
the property held in trust. same capacity required for the particular title in question. For example,
The rule of imprescriptibility of the action to recover property minors and other incapacitated persons are qualifi ed to become donees
held in trust may possibly apply to resulting trusts as long as but acceptance shall be done through their parents or legal
the trustee has not repudiated the trust. representatives.68 For purposes of extraordinary prescription where just
title is not required, the capacity for possession is required. For example,
Acquisitive prescription may bar the action of the benefi ciary even a minor is qualifi ed to acquire possession of a corporeal object
against the trustee in an express trust for the recovery of the through material occupation but he may not acquire possession of a right
property held in trust where: because the latter requires that he be possessed with full civil capacity. In
(a) the trustee has performed unequivocal acts of case of the latter, however, the minor may acquire ownership by
repudiation amounting to an ouster of the cestui que trust; prescription through his parents, guardians or legal representatives
 4

them within twenty days to be counted from their occupation by

another person. This period having expired, they shall pertain to him
OCCUPATION who has caught and kept them. (612a)

Art. 713. Things appropriable by nature which are without an owner, The law does not, however, authorize the owner of the swarm of bees to
such as animals that are the object of hunting and fi shing, hidden enter an enclosed estate. In the case of the latter, it is necessary to obtain
treasure and abandoned movables, are acquired by occupation. (610) the permission of the owner of the estate before entering the same

Occupation is a mode of acquiring ownership by the seizure or In case the owner of the swarm of bees fails to purse the swarm, or if he
apprehension of things corporeal which have no owner with the intention initially makes a pursuit but he ceases to do so within two (2) consecutive
of acquiring them and according to the rules laid down by law. days, the law considers him as to have abandoned ownership of the
swarm of bees6 in which case, the swarm becomes res nullius
It consists in taking possession of a thing over which no one has a
proprietary right. If the owner of the estate fails to seize or capture the swarm of bees, the
same shall remain to be res nullius
The rule of the law is res nullius cedit occupanti.
Domesticated or Tamed Animals
There are four (4) essential conditions or requisites which must co-exist in
order to give to occupation its full legal significance as a mode of acquiring these are the animals which were formerly wild but which have been
ownership subdued and retained the habit of returning to the premises of the
possessor. They will be regarded as domesticated animals as long as they
 the thing must be a res nullius — that is, a thing which
retain such habit of returning to the premises of the possessor but once
either never had an owner, or which, by virtue of a
they lose said habit, they will immediately revert back to their original
previous abandonment (dereliction), has not an owner at
status of being wild.
the time of its occupation.
 it must be appropriable by nature or one that can be so long as they retain the habit of returning to the premises of the
seized or apprehended. In other words, it must be possessor, the ownership over these animals is not affected by the simple
corporeal. fact that they are no longer under the control of the present possessor-
 it must be brought into the actual possession or control owner.
of the one professing to acquire it.
 person must acquire it with the intention of acquiring If after the expiration of this period the possessor-owner fails to reclaim
ownership. He must therefore have the necessary them, the ownership over these animals is considered to have been
capacity to consent abandoned. Hence, they will now again be considered as res nullius and
“they shall pertain to him who has caught and kept them.”
This rule applies even though the capture be made on another’s land,
without prejudice, however, to the liability of the captor for any damage Domestic Animals
resulting from his trespass.
The foregoing rule does not apply to domestic or tame animals, or those
Wild beasts, birds, fi shes, and in fact all animals which are still in their which are born and reared under the control and care of man. In the case
natural state of freedom become the property of the captor by virtue of of the domestic animals, they are considered as movable property.
occupation.
The ownership thereof may not be acquired by occupation unless these
wild animals are those which are found in their state of natural freedom. animals are abandoned by their owner. The ownership over them can be
They are without an owner or res nullius. Hence, ownership thereof may acquired, however, by another person through acquisitive prescription
be acquired by occupation.
Art. 717. Pigeons and fi sh which from their respective breeding places
Pursuant to Article 560, they are, however, considered possessed only pass to another pertaining to a different owner shall belong to the latter,
while they are under one’s control. As a consequence, once they recover provided they have not been enticed by some artifi ce or fraud. (613a)
their natural freedom or once they are restored to their original state of
being free, they ceased to be under one’s possession. Art. 718. He who by chance discovers hidden treasure in another’s
property shall have the right granted him in Article 438 of this Code.
Art. 714. The ownership of a piece of land cannot be acquired by (614)
occupation. (n)
Hidden Treasure A treasure is any hidden and unknown deposit of money,
Art. 715. The right to hunt and to fish is regulated by special laws. (611) jewelry, or other precious objects, the lawful ownership of which does not
appear. It is considered, in law, as res nullius and may thus be acquired by
Under Philippine laws (specifi cally R.A. No. 9147, otherwise known as the occupation.
“Wildlife Resources Conservation and Protection Act;” R.A. No. 8550,
otherwise known as the “Philippine Fisheries Code of 1998”; and Fisheries Art. 719. Whoever fi nds a movable, which is not treasure, must return it
Administrative Order Nos. 202 and 208) and international treaty (the to its previous possessor. If the latter is unknown, the fi nder shall
Convention on International Trade in Endangered Species of Wild Fauna immediately deposit it with the mayor of the city or municipality where
and Flora or CITES), the buying, using, gathering, killing, processing the fi nding has taken place. The fi nding shall be publicly announced by
and/or transporting of rare, threatened and endangered species are the mayor for two consecutive weeks in the way he deems best. If the
prohibited. movable cannot be kept without deterioration, or without expenses
which considerably diminish its value, it shall be sold at public auction
Hence, the rule on acquisition of ownership by virtue of occupation stated eight days after the publication. Six months from the publication having
in Article 713 of the New Civil Code does not apply to animals which are elapsed without the owner having appeared, the thing found, or its
classifi ed as rare, threatened or endangered species value, shall be awarded to the fi nder. The fi nder and the owner shall be
obliged, as the case may be, to reimburse the expenses. (615a)
Art. 716. The owner of a swarm of bees shall have a right to pursue them
to another’s land, indemnifying the possessor of the latter for the If the f nder fails to comply with these procedural requirements and
damage. If the owner has not pursued the swarm, or ceases to do so appropriates for himself the movable property he found, he shall be liable
within two consecutive days, the possessor of the land may occupy or for the crime of theft.
retain the same. The owner of domesticated animals may also claim
 5

Things the ownership of which has been abandoned are capable of considered gifts under the National Internal Revenue Code. In discrediting
occupation. But the abandonment must be absolute and must further the contention of the partners, the Court explained. The present case falls
comply with the requirements squarely within the defi nition of a donation. All three elements of a
donation are present. The patrimony of the four petitioners were reduced
 at the one renouncing it must have the legal capacity to do so by P882,661.31 each. Senator Edgardo Angara’s patrimony
 the same is coupled with the intention to renounce the right correspondingly increased by P3,530,645.24. There was intent to do an act
of liberality or animus donandi was present since each of the petitioners
Note that abandonment of things is the opposite of occupation. It takes
gave their contributions without any consideration.
place when the owner abandons the possession of a thing with the
intention of renouncing his ownership thereof xxx

distinction must be made between abandoned property, on the one hand, the fact that the donors would somehow in the future benefi t from the
and lost and mislaid property, on the other hand. election of the candidate to whom they made campaign contributions, in
no way amounts to a valuable consideration so as to remove political
 In the case of the former, it is necessary that the spes contributions from the purview of a donation as their candidate was under
recuperandi (hope of recovery r recapture) is gone and the no obligation to benefi t them
animus revertendi (intent to recover) is given up.Thus, it has
been held there is no real intention to abandon a property xxx
when, as in the case of a shipwreck or a fi re, things are thrown
into the sea or on the highway. Donative Intent or Animus Donandi
 The mere fact that the cargo is sunk with a
shipwrecked at sea by no means deprives the - is a creature of the mind. It cannot be perceived except by the
owner of said cargo of his property therein. He still material and tangible acts which manifest its presence.
has the right to reclaim such property and to - donative intent is presumed present when one gives a part of
recover the same if possible. one’s patrimony to another without consideration. It is not
negated when the person donating has other intentions,
 In the case of lost and mislaid (or misplaced) property,
motives or purposes which do not contradict donative intent
however, the spes recuperandi and the animus revertendi are
- For a donation to exist, however, the intent to donate must be
still alive. Hence, its ownership is not lost yet by its owner. So
effectively carried out. Hence, a mere declaration of an
long as the property is not under the control of another person,
intention or desire to donate is not a donation.
the present owner does not lose both the ownership and
possession of the same. Donation as “Contract”
 However, if the misplaced property is already in the
control of another person, its possession is already - Under Article 1318 of the New Civil Code, there is no contract
deemed lost. unless the following requisites concur: (1) consent of the
contracting parties; (2) object certain which is the subject
This is the difference between mislaid (misplaced property) and lost matter of the contract; and (3) cause of the obligation which is
property established.
- Donation has all the requisites of contracts (consent of both
in the case of a lost property, note that it is only the possession which is
parties, subject matter and cause), and like them requires
considered lost by the owner, not his ownership thereof. The lost property
tradition (delivery) to vest title in the donee. D
is not, therefore, considered a res nullius but a res alicujus. Hence, its
- onation also requires the concurrence of the reciprocal consent
ownership may not be acquired by the fi nder through occupation.
of the parties and it does not become perfect until it is
Art. 720. If the owner should appear in time, he shall be obliged to pay, accepted by the done
as a reward to the fi nder, one-tenth of the sum or of the price of the
Art. 726. When a person gives to another a thing or right on account of
thing found. (616a)
the latter’s merits or of the services rendered by him to the donor,
DONATION provided they do not constitute a demandable debt, or when the gift
imposes upon the donee a burden which is less than the value of the
Art. 725. Donation is an act of liberality whereby a person disposes thing given, there is also a donation. (619)
gratuitously of a thing or right in favor of another, who accepts it. (618a)
Art. 727. Illegal or impossible conditions in simple and remuneratory
Donation is an “act of liberality whereby a person disposes gratuitously of donations shall be considered as not imposed. (n)
a thing or right in favor of another, who accepts it or a gratuitous contract
whereby the donor divests himself, at present and irrevocably, of the thing Art. 728. Donations which are to take effect upon the death of the donor
given in favor of the done partake of the nature of testamentary provisions, and shall be governed
by the rules established in the Title on Succession. (620)
One who donates is called the donor and the one who receives the
donation is called the done Art. 729. When the donor intends that the donation shall take effect
during the lifetime of the donor, though the property shall not be
Essential Elements of Donation delivered till after the donor’s death, this shall be a donation inter vivos.
The fruits of the property from the time of the acceptance of the
a) The essential reduction of the patrimony of the donor; donation, shall pertain to the donee, unless the donor provides
otherwise. (n)
(b) The increase in the patrimony of the donee; and
Art. 730. The fi xing of an event or the imposition of a suspensive
(c) The intent to do an act of liberality or animus donandi
condition, which may take place beyond the natural expectation of life of
- to constitute donation the liberality should be strictly construed the donor, does not destroy the nature of the act as a donation inter
vivos, unless a contrary intention appears. (n)
Abello v. Commissioner of Internal Revenue
Art. 731. When a person donates something, subject to the resolutory
Angara’s partners questioned the propriety of the imposition of donor’s condition of the donor’s survival, there is a donation inter vivos. (n)
tax on the ground that political or electoral contributions are not
 6

Art. 732. Donations which are to take effect inter vivos shall be governed - In case of doubt the conveyance should be deemed a donation
by the general provisions on contracts and obligations in all that is not inter vivos rather than mortis causa, in order to avoid
determined in this Title. (621) uncertainty as to the ownership of the property subject of the
deed
Art. 733. Donations with an onerous cause shall be governed by the rules
on contracts, and remuneratory donations by the provisions of the Laureta v. Mata
present Title as regards that portion which exceeds the value of the
burden imposed. (622) the deed of donation provided that the donor was donating mortis causa
certain properties as a reward for the donee’s services to the donor and as
Classifi cations of Donation a token of the donor’s affection for him. The donation was made under
the condition that “the donee cannot take possession of the properties
Donations may be classifi ed as to their taking effect in to donations donated before the death of the donor”; that the donee should cause to
mortis causa and donations inter vivos. be held annually masses for the repose of the donor’s soul, and that he
should defray the expenses for the donor’s funeral. It was held that said
donation mortis causa - If the donation is made in contemplation of the
donation was inter vivos despite the statement in the deed that it was
donor’s death, meaning that the full or naked ownership of the donated
mortis causa. The donation was construed as a conveyance in praesenti (“a
properties will pass to the donee only because of the donor’s death, then
present grant of a future interest”) because it conveyed to the donee the
it is at that time that the donation takes effect. should be embodied in a
title to the properties donated “subject only to the life estate of the
last will and testament
donor” and because the conveyance took effect upon the making and
donations inter vivos- f the donation takes effect during the donor’s delivery of the deed. The acceptance of the donation was a circumstance
lifetime or independently of the donor’s death, meaning that the full or which was taken into account in characterizing the donation as inter
naked ownership (nuda proprietas) of the donated properties passes to vivos.5
the donee during the donor’s lifetime, not by reason of his death but
Balaqui v. Dongso
because of the deed of donation
it was provided in the deed that the donation was made in consideration
may be classifi ed according to purpose or cause into
of the services rendered to the donor by the donee; that “title” to the
(1) pure or simple; donated properties would not pass to the donee during the donor’s
lifetime, and that it would be only upon the donor’s death that the donee
(2) remuneratory or compensatory; would become the “true owner” of the donated properties. However,
there was the stipulation that the donor bound herself to answer to the
(3) conditional or modal; and donee for the property donated and that she warranted that nobody
would disturb or question the donee’s right. Notwithstanding the
(4) onerous
provision in the deed that it was only after the donor’s death when the
A pure or simple donation is one where the underlying cause is plain “title” to the donated properties would pass to the donee and when the
gratuity27 or pure liberality (no strings attached).28 This is donation in its donee would become the owner thereof, it was held in the Balaqui case
truest form. that the donation was inter vivos. It was noted in that case that the donor,
in making a warranty, implied that the title had already been conveyed to
a remuneratory or compensatory donation is one made for the purpose the donee upon the execution of the deed and that the donor merely
of rewarding the donee for past services, which services do not amount to reserved to herself the “possession and usufruct” of the donated
a demandable debt. properties.6

A conditional or modal donation is one where the donation is made in Concepcion v. Concepcion
consideration of future services or where the donor imposes certain
conditions, limitations or charges upon the donee, the value of which is it was provided in the deed of donation, which was also styled as mortis
inferior than that of the donation given. causa, that the donation was made in consideration of the services
rendered by the donee to the donor and of the donor’s affection for the
Finally, an onerous donation is that which imposes upon the donee a donee; that the donor had reserved what was necessary for his
reciprocal obligation or, to be more precise, this is the kind of donation maintenance, and that the donation “ha de producir efectos solamente
made for a valuable consideration, the cost of which is equal to or more por muerte de la donante.” It was ruled that the donation was inter vivos
than the thing donated. because the stipulation that the donation would take effect only after the
donor’s death “simply meant that the possession and enjoyment, of the
- donations of the onerous type are the most distinct. This is fruits of the properties donated’ should take effect only after the donor’s
because, unlike the other forms of donation, the validity of and death and not before.”
the rights and obligations of the parties involved in an
onerous donation is completely governed not by the law on Importance of Distinctions
donations but by the law on contracts.
The distinction between a transfer inter vivos and mortis causa is
Donations Mortis Causa important as the validity or revocation of the donation depends upon its
nature.
Distinguished From Donations Inter Vivos
If the donation is inter vivos, it must be executed and accepted
- It is the time of effectivity (aside from the form) which with the formalities prescribed by Articles 748 and 749 of the
distinguishes a donation inter vivos from a donation mortis Civil Code, except when it is onerous in which case the rules on
causa. And the effectivity is determined by the time when the contracts will apply.64 If it is mortis causa, the donation must
full or naked ownership (dominium plenum or dominium be in the form of a will, with all the formalities for the validity
directum) of the donated properties is transmitted to the of wills, otherwise it is void and cannot transfer ownership.
donees
- whether a donation is inter vivos or mortis causa depends upon
the nature of the disposition made . the title given to a deed of An essential characteristic of dispositions mortis
donation is not the determinative factor which makes the causa is that the conveyance or alienation should be
donation inter vivos or mortis causa (expressly or by necessary implication) revocable ad
 7

nutum, i.e., at the discretion of the grantor or so- if the are no signs contradicting or limiting the unqualifi ed and
called “donor,” simply because the latter has unrestricted right of the donor to alienate the conveyed property in favor
changed his mind. Donation inter vivos, on the other of other persons of her choice at anytime that she should wish to do so,
hand, once accepted, becomes irrevocable. the same is a true conveyance mortis causa since it indirectly recognizes
donations mortis causa are not required to be the donor’s power to nullify the conveyance to the alleged donee
accepted by the donees during their lifetime whatever the donor wished to do so, for any reason or for no particular
reason at all.
upon acceptance by the donee, the
donor can no longer withdraw, and he where the power to indirectly revoke is hedged in by the specifi
can be compelled to comply with his cation that the donor could dispose of the property only to
offering or to deliver the things he satisfy her needs, the donation must be held to partake of the
wanted to donate.77 Consequently, it nature of a conveyance inter vivos
may not be revoked unilaterally or by the
sole and arbitrary will of the donor. The According to the Court, the last sentence of the
donation, however, may be made stipulation appears incompatible with the grantor’s
revocable upon the fulfi llment of freedom to revoke a true conveyance mortis causa,
resolutory conditions, or may be revoked a faculty that is essentially absolute and
only for the reasons provided in Articles discretionary, If the donor, says the Court, wished or
760, 764 and 765 of The Civil Code intended to retain the right to change the
destination of her property at her sole will and
 subsequent birth discretion, there was no reason for her to specify
of children of the the causes for which she could sell or encumber the
donor property covered by her bounty
 failure by the
donee to comply Distinguishing Characteristics of Donation Mortis Causa
with the
1. It conveys no title or ownership to the transferee before the
conditions
death of the transferor or what amounts to the same thing,
imposed
that the transferor should retain the ownership (full or naked)
 ,ingratitude of the
and control of the property while alive;
donee and
2. That before his death, the transfer should also be revocable by
reduction of the
the transferor at will, ad nutum; but revocability may be
donation in the
provided for indirectly by means of a reserved power in the
event of inoffi
donor to dispose of the properties conveyed;
ciousness thereof
3. That the transfer should be void if the transferor should survive
If the donor reserves the right to revoke it or if he reserves the right to the transferee.99
dispose of all the properties purportedly donated, there is no donation
Donation Inter Vivos
In the following cases, the conveyance was considered a valid donation
the donation takes effect during the donor’s lifetime or independently of
inter vivos, hence, essentially irrevocable:
the donor’s death, meaning that the full or naked ownership (nuda
1. When the attending circumstances in the execution of the proprietas) of the donated properties passes to the donee during the
subject deed demonstrated the intent of the donor to transfer donor’s lifetime, not by reason of his death but because of the deed of
the ownership over the properties upon its execution donation
2. Where the donation expressly provides that it is irrevocable
donation inter vivos may be classifi ed into:
although there are provisions in the deed which state that the
same will only take effect upon the death of the donor and that (1) pure or simple;
there is prohibition to alienate, encumber, dispose, or sell the (2) Remuneratory
same. (3) modal or conditional,
a. the prohibition to alienate does not necessarily (4) onerous.
defeat the inter vivos character of the donation. It
even highlights the fact that what remains with the
donor is the right of usufruct and not anymore the
naked title of ownership over the property donated Pure or Simple;
i. in ascertaining the intention of the
- is one where the underlying cause is plain gratuity or pure
donor, all of the deed’s provisions must
liberality (no strings attached).This is donation in its truest
be read together.
form.
b. the provision in the deed of donation that the
donated property will remain in the possession of Remuneratory
the donor just goes to show that the donor has
given up his naked title of ownership thereto and - is one made for the purpose of rewarding the donee for past
has maintained only the right to use (jus utendi) and services, which services do not amount to a demandable debt
possess (jus possidendi) the subject donated - it is necessary that the services to be repaid be not demandable
property. The Court also noted the existence of an obligations, otherwise, the so-called donation is in reality
acceptance clause which is a mark that the donation payment.
is inter vivoS - It is likewise necessary that the services must have already
c. the express irrevocability of the donation is a quality been performed for if the services are still to be performed in
absolutely incompatible with the idea of the future, the donation is onerous
conveyances mortis causa where revocability is of
the essence of the act
 8

In the case of simple and remuneratory donations, the rules on donations if illegal or impossible conditions are imposed in simple or
in this Title (Arts. 725-773) shall primarily governand the provisions of the remuneratory donations, then the donation is valid because the
Civil Code on obligations and contracts shall apply in a suppletory manner illegal or impossible conditions are simply considered as not
imposed and will, thus, be disregarded
Carlos v. Ramil
Donations with an onerous cause, on the other hand, are governed not by
After the marriage, the couple entered into an arrangement with the girl the law on donations but by the rules on contracts.117 Hence, the
and her husband, that if the latter would remain living in their house and formalities required for a valid donation under Articles 748 and 749 of the
take care of them, the real estate which they owned would be given to the Code do not apply.
girl and her husband.
if an impossible or illegal condition is imposed in such kind of
Issue: whether or not the agreement constituted a remunerative donation. donation, the obligation thus created shall be annulled
pursuant to the provisions of Article 1183 of the Civil Code,
Ruling: The agreement is not a remunerative donation but a contract by
which Carlos and his wife transferred to the defendant and his wife the “Art. 1183. Impossible conditions, those contrary to good
lands described in the complaint upon the consideration that the latter customs or public policy and those prohibited by law shall
should give to the former the care therein mentioned and prescribed. That annul the obligation which depends upon them. If the
contract was fully executed upon the part of the defendant and his wife. If obligation is divisible, that part thereof which is not affected by
the transaction between Carlos and the defendant was a donation it was the impossible or unlawful condition shall be valid. “The
una donacion con causa onerosa and not una donacion remuneratoria condition not to do an impossible thing shall be considered as
not having been agreed upon.
At the time of the transaction hereafter referred to, none of the services
which formed the consideration for the agreement in question had as yet Danguilan v. IAC
been performed. They were all to be performed in the future.
While truly donations, the conveyances were onerous donations as the
Conditional or Modal properties were given to the petitioner in exchange for his obligation to
take care of the donee for the rest of his life and provide for his burial.
- one where the donation is made in consideration of future
Hence, it was not covered by the rule in Article 749 of the Civil Code
services or where the donor imposes certain conditions,
requiring donations of real properties to be effected through a public
limitations or charges upon the donee, the value of which is
instrument.
inferior than that of the donation given.
- shall be governed by the law on contracts up to extent of the Manalo v. De Mesa
burden and by the law on donations under the present Title as
regards that portion which exceeds the value of the burden ‘There can be no doubt that the donation in question was made for a
imposed valuable consideration, since the donors made it conditional upon the
donees’ bearing the expenses that might be occasioned by the death and
Onerous donation burial of the donor Placida Manalo, a condition and obligation which the
donee Gregorio de Mesa carried out in his own behalf and for his wife
- is that which imposes upon the donee a reciprocal obligation
Leoncia Manalo; therefore, in order to determine whether or not said
or, to be more precise, this is the kind of donation made for a
donation is valid and effective it should be suffi cient to demonstrate that,
valuable consideration, the cost of which is equal to or more
as a contract, it embraces the conditions the law requires and is valid and
than the thing donated
effective, although not recorded in a public instrument.’”
- When the donation is onerous, it is completely governed not by
the law on donations but by the law on contracts. Roman Catholic Archbishop of Manila v. Court of Appeals
A modal donation, on the other hand, shall be
governed by the law on contracts up to extent of the Donation, as a mode of acquiring ownership, results in an effective
burden and by the law on donations under the transfer of title over the property from the donor to the donee. Once a
present Title asregards that portion which exceeds donation is accepted, the donee becomes the absolute owner of the
the value of the burden imposed property donated. Although the donor may impose certain conditions in
the deed of donation, the same must not be contrary to law, morals, good
Lagazo v. Court of Appeals
customs, public order and public policy. The condition imposed in the deed
We rule that the donation was simple, not onerous. Even conceding that
of donation in the case before us constitutes a patently unreasonable and
petitioner’s full payment of the purchase price of the lot might have been
a burden to him, such payment was not however imposed by the donor as undue restriction on the right of the donee to dispose of the property
a condition for the donation. donated, which right is an indispensable attribute of ownership. Such a
prohibition against alienation, in order to be valid, must not be perpetual
Importance of Distinctions or for an unreasonable period of time

important for the purpose of determining: In the case at bar, we hold that the prohibition in the deed of donation
against the alienation of the property for an entire century, being an
(1) the rules that shall govern a particular donation; unreasonable emasculation and denial of an integral attribute of
(2) the formalities to be followed; and ownership, should be declared as an illegal or impossible condition within
(3) the effect of imposition of illegal or impossible conditions. the contemplation of Article 727 of the Civil Code. Consequently, as specifi
cally stated in said statutory provision, such condition shall be considered
simple and remuneratory donations are governed, primarily, by Title III of as not imposed. No reliance may accordingly be placed on said prohibitory
Book III (the law on donations) and, suppletorily, by the law on obligations paragraph in the deed of donation. The net result is that, absent said
and contracts. Such being the case, the formalities required for a valid proscription, the deed of sale supposedly constitutive of the cause of
donation under Articles 748 and 749 of the New Civil Code apply to these action for the nullifi cation of the deed of donation is not in truth violative
kinds of donations of the latter hence, for lack of cause of action, the case for private
respondents must fail
Such being the case, the formalities required for a valid
donation under Articles 748 and 749 of the New Civil Code Art. 734. The donation is perfected from the moment the donor knows of
apply to these kinds of donations the acceptance by the donee.
 9

Perfection of Donation it cannot comply with the condition of building a school and the same was
made known to the donor. Only then — when the non-fulfi llment of the
donation also follows the theory of cognition resolutory condition was brought to the donor’s knowledge — that
ownership of the donated property reverted to the donor as provided in
Before notice of the acceptance, therefore, the offerer (donor) is not
the automatic reversion clause of the deed of donation. The donor may
bound and may withdraw the offer of donation. Such revocation will have
have an inchoate interest in the donated property during the time that
the effect of preventing the perfection of the donation, although it may
ownership of the land has not reverted to her. Such inchoate interest may
not be known to the offeree (donee)
be the subject of contracts including a contract of sale. In this case,
The power to revoke is implied in the criterion that no donation however, what the donor sold was the land itself which she no longer
exists until the acceptance is known owns. It would have been different if the donor-seller sold her interests
over the property under the deed of donation which is subject to the
In the same manner, the acceptance made by the offeree (donee) may be possibility of reversion of ownership arising from the non-fulfi llment of
revoked before it comes to the knowledge of the offeror (donor) the resolutory condition. xxx xxx xxx Be that at it may, there is one thing
which militates against the claim of petitioners. Sale, being a consensual
Acceptance is Indispensable contract, is perfected by mere consent, which is manifested the moment
there is a meeting of the minds as to the offer and acceptance thereof on
Without acceptance, the donation is not perfected.124 The rationale
three (3) elements: subject matter, price and terms of payment of the
behind the requirement of acceptance is that nobody is obliged to receive
price. Ownership by the seller on the thing sold at the time of the
a benefi t against his will.
perfection of the contract of sale is not an element for its perfection. What
Effects of Acceptance the law requires is that the seller has the right to transfer ownership at the
time the thing sold is delivered. Perfection per se does not transfer
A donation, as a mode of acquiring ownership, results in an effective ownership which occurs upon the actual or constructive delivery of the
transfer of title over the property from the donor to the donee and once a thing sold. A perfected contract of sale cannot be challenged on the
donation is accepted, the donee becomes the absolute owner of the ground of non-ownership on the part of the seller at the time of its
property donated,126 notwithstanding the condition imposed by the done perfection; hence, the sale is still valid. The consummation, however, of
the perfected contract is another matter. It occurs upon the constructive
Once the donation is accepted, it is generally considered or actual delivery of the subject matter to the buyer when the seller or her
irrevocable successorsin-interest subsequently acquires ownership thereof. Such
circumstance happened in this case when petitioners — who are Trinidad
The donation, however, may be made revocable Quijada’s heirs and successors-in-interest — became the owners of the
upon the fulfi llment of resolutory conditions, or subject property upon the reversion of the ownership of the land to them.
may be revoked only for the reasons provided in Consequently, ownership is transferred to respondent Mondejar and
Articles 760, 764 and 765 of the Civil Code. those who claim their right from him. Article 1434 of the New Civil Code
supports the ruling that the seller’s “title passes by operation of law to the
upon acceptance by the donee, the donor can no longer withdraw, and he
buyer.” This rule applies not only when the subject matter of the contract
can be compelled to comply with his offering or to deliver the things he
of sale is goods, but also to other kinds of property, including real
wanted to donate
property. There is also no merit in petitioners’ contention that since the
Quijada v. Court of Appeals lots were owned by the municipality at the time of the sale, they were
outside the commerce of men under Article 1409(4) of the NCC; thus, the
The donation made on April 5, 1956 by Trinidad Quijada and her brother contract involving the same is inexistent and void from the beginning.
and sisters was subject to the condition that the donated property shall be However, nowhere in Article 1409(4) is it provided that the properties of a
“used solely and exclusively as a part of the campus of the proposed municipality, whether it be those for public use or its patrimonial property
Provincial High School in Talacogon.” The donation further provides that are outside the commerce of men. Besides, the lots in this case were
should “the proposed Provincial High School be discontinued or if the conditionally owned by the municipality. To rule that the donated
same shall be opened but for some reason or another, the same may in properties are outside the commerce of men would render nugatory the
the future be closed” the donated property shall automatically revert to unchallenged reasonableness and justness of the condition which the
the donor. Such condition, not being contrary to law, morals, good donor has the right to impose as owner thereof. Moreover, the objects
customs, public order or public policy was validly imposed in the donation. referred to as outside the commerce of man are those which cannot be
When the Municipality’s acceptance of the donation was made known to appropriated, such as the open seas and the heavenly bodies.
the donor, the former became the new owner of the donated property —
donation being a mode of acquiring and transmitting ownership — Time For Making Acceptance
notwithstanding the condition imposed by the donee. The donation is
Article 746 of the New Civil Code requires that the “acceptance must be
perfected once the acceptance by the donee is made known to the donor.
made during the lifetime of the donor and of the donee.”
Accordingly, ownership is immediately transferred to the latter and that
ownership will only revert to the donor if the resolutory condition is not Upon the death of either the donor or the donee prior to the perfection of
fulfi lled. In this case, that resolutory condition is the construction of the the donation, the offer of donation, however, becomes ineffective. This is
school. It has been ruled that when a person donates land to another on clear from the provision of Article 1323 of the New Civil Code which states
the condition that the latter would build upon the land a school, the that “an offer becomes ineffective upon the death, civil interdiction,
condition imposed is not a condition precedent or a suspensive condition insanity, or insolvency of either party before acceptance is conveyed.”
but a resolutory one. Thus, at the time of the sales made in 1962 towards
1968, the alleged seller (Trinidad) could not have sold the lots since she Such being the case, an acceptance made by the donee during the lifetime
had earlier transferred ownership thereof by virtue of the deed of of both the donor and the donee will not result in a perfected donation if
donation. So long as the resolutory condition subsists and is capable of prior to the donor gaining knowledge of such acceptance, either him (the
fulfi llment, the donation remains effective and the donee continues to be donor) or the donee dies.
the owner subject only to the rights of the donor or his successors-
ininterest under the deed of donation. Since no period was imposed by PERSONS WHO MAY GIVE OR RECEIVE A DONATION
the donor on when must the donee comply with the condition, the latter
remains the owner so long as he has tried to comply with the condition Art. 735. All persons who may contract and dispose of their property
within a reasonable period. Such period, however, became irrelevant may make a donation. (624)
herein when the donee-Municipality manifested through a resolution that
To be a donor, the law requires that a person must
 10

(1) be in possession of the capacity to contract and the capacity to after its complete delivery.156 In such a case, the donation will become
dispose of his property invalid for lack of a donee.
(2) and is not specifi cally prohibited to make a donation
But if the foetus survives for at least twenty-four hours, the
The provisions of Article 735 on capacity to donate must be interpreted, foetus will then be considered a person even if it eventually
however, in conjunction with the provisions of Article 751 of the Civil Code dies. In such situation, the donation will remain valid.

In other words, the law requires that the donor be the owner of Manner of Acceptance
the property donated at the time of the donation, otherwise,
such donation is void, even if accepted, following the rule that The offeror (donor) has a right to prescribe in his offer (donation) any
“no one can give what he does not have” — nemo dat quod conditions as to time, place, quantity, mode of acceptance, or other
non habet. matters which it may please him to insert in and make a part thereof, and
the acceptance, must in every respect meet and correspond with the offer
This must be the rule because donation, under the Civil Code, is
a mode of acquiring ownership.141 As a mode of acquiring in the absence of such an acceptance, subsequent words or
ownership, it results in an effective transfer of title over the acts of the parties cannot create a contract
property from the donor to the donee and once a donation is
with respect to the forms of acceptance of donations, the provisions of
accepted, the donee becomes the absolute owner of the
Articles 748 and 749 of the New Civil Code are mandatory in character;
property donated.
hence, the offeror (donor) may not prescribe different formalities in
Art. 736. Guardians and trustees cannot donate the property entrusted accepting a donation other than those provided in said articles
to them. (n)
Art. 739. The following donations shall be void:
Art. 737. The donor’s capacity shall be determined as of the time of the
(1) Those made between persons who were guilty of adultery or
making of the donation. (n)
concubinage at the time of the donation;
Making of the donation’ must be held to mean ‘perfection of the (2) Those made between persons found guilty of the same criminal
donation,’ for it is really upon perfection that the donation is legally made offense, in consideration thereof;
(3) Those made to a public offi cer or his wife, descendants and
Under Article 1332 of the New Civil Code, an offer becomes ineffective ascendants, by reason of his offi ce. In the case referred to in No. 1,
upon the death, civil interdiction, insanity, or insolvency of either party the action for declaration of nullity may be brought by the spouse
before acceptance is conveyed. As explained earlier, this article likewise of the donor or donee; and the guilt of the donor and donee may
applies to donations in view of Article 732 which makes applicable the be proved by preponderance of evidence in the same action. (n)
provisions on obligations and contracts to donations in a suppletory
manner. the following persons are disqualifi ed to become donees:

Applying the provisions of Article 1332, if the donor is capacitated at the (1) Those who were guilty of adultery or concubinage at the time of the
time he makes the donation his subsequent incapacity by reason of civil donation;
interdiction, insanity or insolvency before acceptance is conveyed will (2) Those who were found guilty of the same criminal offense, if the
render the offer ineffective, thus preventing the perfection of the donation donation is made in consideration thereof;
(3) Public offi cers or their spouses, descendants and ascendants, if the
if the offer becomes ineffective before acceptance is conveyed, donation is made by reason of their offi ce;
such supervening event will prevent the meeting of the offer (4) Those who are incapacitated to succeed by will;
and the acceptance — thus preventing the perfection of the (5) The spouses, if the donation is between them and made during the
donation marriage, except moderate ones given on the occasion of any family
rejoicing;
Art. 738. All those who are not specially disqualifi ed by law therefor may (6) Those who are living together as husband and wife without a valid
accept donations. (625) marriage, if the donation is between them and made during their
cohabitation.
The law does not require that the donee must possess capacity to act,
which is defi ned as “the power to do acts with legal effect,”147 it being Persons Guilty of Adultery or Concubinage
suffi cient that he must possesses juridical capacity or “the fi tness to be
the subject of legal relations no previous criminal conviction is necessary since the guilt of the donor
and the donee may be proved by preponderance of evidence in a civil
A conceived child, although as yet unborn, is given by law a provisional action for declaration of nullity of the donation.
personality of its own for all purposes favorable to it. Since donation is
favorable to the foetus, provided it be pure or simple in nature, the a single act of sexual intercourse on the part of the wife with a man other
foetus has the juridical personality to become a donee. Its personality, than her husband always constitutes adultery
however, is provisional or conditional in character153 such that it is
required to be born later with the conditions specifi ed in Article 41 of the for the crime of concubinage to be committed, it is required that the
New Civil Code. husband must either:

If the foetus had an intra-uterine life of at least seven (7) months, it is suffi (1) keep a mistress in the conjugal dwelling;
cient that it is alive after the cutting of the umbilical cord.The foetus will (2) have sexual intercourse, under scandalous circumstances, with
then be considered a person even if it eventually dies. In such situation, a woman who is not his wife; or
the donation will remain valid. (3) cohabit with her in any other place.

But if the foetus is already dead at the time of compete While the husband may not be guilty of concubinage for a single act of
delivery, its personality disappears which will render the sexual intercourse, a donation in favor of the paramour may still be
donation invalid for lack of a donee. considered invalid if the same is made in consideration of the sexual
intercourse since contracts whose cause, object or purpose is contrary to
If the foetus, on the other hand, had an intra-uterine life of less than law, morals, good customs, public order or public policy are void from the
seven months, it is not deemed born if it dies within twentyfour hours very beginning.
 11

Article 739 of the New Civil Code, however, does not apply to cases where (4) Any physician, surgeon, nurse, health offi cer or druggist who
the alleged concubine did not know that the man was married. To be took care of the (donor) during his last illness; and
guilty of concubinage, the woman must know the man to be married. The (5) Individuals, associations and corporations not permitted by law
same principle will likewise apply to the man accused of committing the to (receive donations).
crime of adultery.
if the donation has already been made when the cause of unworthiness
Persons Guilty of Same Criminal Offense occurs, the donation is not revoked, because donations inter vivos are
revoked only by the causes mentioned in Articles 760, 764 and 765
Contemplates of a principal by inducement and a principal by direct
participation. Art. 741. Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents or
If a donation is made between these two persons in consideration of the legal representatives. (626a)
commission of a crime, such donation shall be void
Art. 742. Donations made to conceived and unborn children may be
a previous criminal conviction is necessary accepted by those persons who would legally represent them if they
were already born. (627)
the last paragraph of Article 739 refers only to paragraph 1 when it
authorizes the proving of the guilt of the donor and donee by mere Art. 743. Donations made to incapacitated persons shall be void, though
preponderance of evidence. simulated under the guise of another contract or through a person who
is interposed. (628)
Spouses Inter Se During Marriage
Art. 744. Donations of the same thing to two or more different donees
donations between persons who are living together as husband and wife
shall be governed by the provisions concerning the sale of the same thing
are also void. For such prohibition to apply, it is necessary, however, to
to two or more different persons. (n)
prove that the donor and the donee are living together as husband and
wife. Legal Impossibility of Double Donations

Bitangcor v. Tan Being a mode of acquiring and transmitting ownership or other real rights,
a donation once perfected would deny the valid execution of a subsequent
the Court held that the term “cohabitation” or “living together as husband
inconsistent donation (unless perhaps if the prior donation has provided a
and wife” means not only residing under one roof, but also having
suspensive condition which still pends when the later donation is made).
repeated sexual intercourse.
This rule on double sales fi nds no relevance in an ordinary donation
Secret meetings or nights clandestinely spent together, even if often
where the law requires the donor to have ownership of the thing or the
repeated, do not constitute such kind of cohabitation; they are merely
real right he donates at the time of its perfection (see Article 750, New
meretricious.18
Civil Code) since a donation constitutes a mode, not just a title in an
the Supreme Court has considered as suffi cient proof of common-law acquisition and transmission of ownership
relationship the stipulations between the parties,185 a conviction of
Art. 745. The donee must accept the donation personally, or through an
concubinage,186 or the existence of illegitimate children
authorized person with a special power for the purpose, or with a
Art. 740. Incapacity to succeed by will shall be applicable to donations general and suffi cient power; otherwise, the donation shall be void.
inter vivos. (n) (630)

Articles 1027 and 1032 of the New Civil Code enumerate those persons A donation may not be accepted by a person who is not authorized to do
who are incapacitated to succeed by will so, either by the donee or by law. Such unauthorized acceptance may not
even give rise to an unenforceable contract
the disqualifi cations contemplated in Article 740 extend only to those
persons who are incapable of succeeding by virtue of Article 1027 of the Note that unenforceable contracts are subject to ratification, the effects of
Civil Code and do not extend to those persons disqualifi ed under Article which retroact to the time that the contract was entered without
1032 of the same Code authority and not merely from the time of its ratification

the disqualifi cations contemplated in Article 740 extend only In a donation which is not accepted in the manner provided for in Article
to those persons who are incapable of succeeding by virtue of 745, however, the unauthorized acceptance will not result in a perfected
Article 1027 of the Civil Code and do not extend to those contract of donation, be it unenforceable or otherwise
persons disqualifi ed under Article 1032 of the same Code
In such a situation, there remains an offer of donation which may be
in relation to Article 1027, the following persons are disqualifi ed to accepted by the donee personally or through an authorized person with a
become donees under the provisions of Article 740 of the Civil Code: special power for the purpose, or with a general and suffi cient power,
unless the offer (donation) was withdrawn or revoked prior to such
(1) The priest who heard the confession of the (donor) during his acceptance. But in such a situation, the effects of the perfection of the
last illness, or the minister of the gospel who extended spiritual donation, i.e., transfer of ownership from the donor to the donee, will be
aid to him during the same period; produced only from the time that the donation is accepted in the manner
(2) The relatives of such priest or minister of the gospel within the provided for in Article 745.
fourth degree, the church, order, chapter, community,
organization, or institution to which such priest or minister may if what is donated is a personal property the value of which does not
belong; exceed five thousand pesos (P5,000) and the donation is pure, a minor or
(3) A guardian with respect to (donations) made by a ward in his incapacitated person referred to in said article may validly receive such
favor before the fi nal accounts of the guardianship have been donation when made orally and simultaneously delivered.164 However
approved, even if the (donor) should die after the approval when the donation requires a written acceptance, whether in a private or
thereof; nevertheless, any (donations) made by the ward in public instrument, the provisions of Article 741 should strictly apply.
favor of the guardian when the latter is his ascendant,
Art. 746. Acceptance must be made during the lifetime of the donor and
descendant, brother, sister, or spouse, shall be valid;
of the donee. (n)
 12

Art. 747. Persons who accept donations in representation of others who As such, if the value of the personal property to be
may not do so by themselves, shall be obliged to make the notifi cation donated does not exceed P5,000 and the donation is
and notation of which Article 749 speaks. (631) made in writing, the acceptance may be made either
orally or in writing, expressly or tacitly, and without
Art. 748. The donation of a movable may be made orally or in writing. need of simultaneous delivery.
An oral donation requires the simultaneous delivery of the thing or of
the document representing the right donated. If the value of the If the value of the personal property to be donated exceeds P5,000.00, the
personal property donated exceeds Five thousand pesos, the donation law mandates that both the donation and the acceptance must be in
and the acceptance shall be made in writing. Otherwise, the donation writing, otherwise, the donation shall be void.
shall be void. (632a)
the law simply requires the donation and the acceptance to be
Art. 749. In order that the donation of an immovable may be valid, it in written form and such requirement is complied with if both
must be made in a public document, specifying therein the property the donation and the acceptance are embodied either in a
donated and the value of the charges which the donee must satisfy. The private instrument or a public instrument.
acceptance may be made in the same deed of donation or in a separate
public document, but it shall not take effect unless it is done during the Further, the law does not require that both the donation and
lifetime of the donor. If the acceptance is made in a separate instrument, the acceptance be embodied in a single instrument
the donor shall be notifi ed thereof in an authentic form, and this step
Form of Donations of Real Property
shall be noted in both instruments. (633)
the law mandates that:
Formalities in Donation
(1) both the donation and the acceptance must be embodied in a
donation, however, is a solemn contract which requires form for purposes
public instrument, although not necessarily embodied in a
of validity. In other words, if the formalities required in Articles 748 and
single document;
749 are not followed the donation shall be void.
(2) the real property donated and the value of the charges which
the formalities provided for in Articles 748 and 749 are applicable only to the donee is required to satisfy must be specifi ed in the deed
donations inter vivos and not to transfer mortis causa, the latter being of donation;
governed by the formalities for the validity of wills. (3) if the acceptance is embodied in a separate public document,
the donor shall be notifi ed thereof in an authentic form and
Articles 748 and 749 apply only to simple and remuneratory donations and such step shall be noted in both instruments of donation and
fi nd no application to onerous ones, the latter being governed by the rules acceptance.
on contracts.
All the foregoing requisites must be complied with, otherwise, the
the provisions of Article 83 of the Family Code,192 the formalities of donation shall be void.202
donations propter nuptias are likewise governed by Articles 748 and 749
of the Civil Code. Donation and Acceptance Must Be in Public Document

for a donation to be considered as donation propter nuptias, the following It must be made in a public document203 regardless of the value of the
requisites must be present: property

(1) it must be made before the celebration of the marriage; a transfer of real property from one person to another cannot take effect
(2) it must be made in consideration of the marriage; and as a donation unless embodied in a public document
(3) it must be made in favor of one or both of the future spouses.
If the acceptance is not embodied in a public document, the donation shall
In this kind of donation, it is essential that the donee or donees be either be void
of the future spouses or both of them, although the donor may either be
Heirs of Salud Dizon Salamat v. Tamayo
one of the future spouses or a third person
It is clear from Article 749 that a transfer of real property from one person
the following donations are not donations propter nuptias:
to another cannot take effect as a donation unless embodied in a public
(1) those made in favor of the spouses after the celebration of document. The alleged donation in the case at bar was done orally and not
marriage; executed in a public document
(2) those executed in favor of the future spouses but not in
Property Donated and Value of Charges Must Be Specifi ed
consideration of the marriage; and
(3) those granted to persons other than the spouses even though they The “charges” referred to in this article are the burdens mentioned in
may be founded on the marriage. Article 726 inferior in value to the property donated.
Form of Donations of Personal Property These charges are required to be specifi ed in the deed of donation for the
purpose of determining the true amount of the donation
Depending on its value, the donation of a personal property may be made
either orally or in writing. if the value of the burdens or charges is at least equal or superior than that
of the value of the property donated, the donation is in reality a contract
If the value of the personal property does not exceed fi ve thousand
and governed by the law on contracts
pesos (P5,000.00), the donation may be made orally subject, however, to
the requirement that there must be simultaneous delivery of the thing or Requirement of Notifi cation and Notation
of the document representing the right donated.
Title to immovable property does not pass from the donor to the donee by
If there is no simultaneous delivery, the donation is void. virtue of a deed of donation until and unless it has been accepted in a
public instrument and the donor duly notifi ed thereof
There is nothing in the law, however, which prevents the
donation from being reduced in writing. If the donation is in Where the deed of donation fails to show the acceptance, or where the
writing, note that there is no requirement of simultaneous formal notice of the acceptance, made in a separate instrument, is either
delivery
 13

not given to the donor or else not noted in the deed of donation and in the (2) He must reserve, in full ownership or in usufruct, suffi cient
separate acceptance, the donation is null and void means for the support of himself, and of all relatives who, at
the time of the acceptance of the donation, are by law entitled
if the notifi cation and notation are not complied with, the donation is to be supported by him;and
void. (3) He cannot give by donation more than he can give by will.

However, a strict and literal adherence to the requirement of “notation” in Future Property Cannot Be Donated
Article 749 of the Civil Code should be avoided if such will result not in
justice to the parties but conversely a distortion of their intentions.2 . As being itself a mode of acquiring ownership, donation results in an
effective transfer of title over the property from the donor to the
Registration Not Necessary For Validity of Donation donee226 once the donation is perfected. For this reason, the law
requires that the donor must be the owner of the thing donated at the
It is enough, between the parties to a donation of an immovable property,
time of the donation.
that the donation be made in a public instrument but, in order to bind
third persons, the donation must be registered in the Registry of By “future property” is understood anything which the donor cannot
Property.2 dispose of at the time of the donation

Such registration in the Offi ce of the Register of Deeds or in the Assessor’s includes all property that belongs to others at the time the
Offi ce is not necessary for the donation to be considered valid and offi donation is made, although it may or may not later belong to
cial.22 the donor

Republic v. Guzman the requirement that the donor must be the owner of the property
donated attaches only at the time of the perfection of the donation and
r, it is mandated that if an acceptance is made in a separate public writing
not prior thereto
the notice of the acceptance must be noted not only in the document
containing the acceptance but also in the deed of donation. Commenting it is possible that, at the time of the execution of the deed of
on Art. 633 of the Civil Code from whence Art. 749 came Manresa said: “If donation or even up to the time of acceptance, the donor may
the acceptance does not appear in the same document, it must be made not be the owner of the property donated, so long as at the
in another. Solemn words are not necessary; it is suffi cient if it shows the time the acceptance is conveyed — at which point the donation
intention to accept x x x it is necessary that formal notice thereof be given is considered perfected — the requirement of the law (that the
to the donor, and the fact that due notice has been given must be noted in donor must be the owner of the property donated) is already
both instruments. Then and only then is the donation perfected.’’ Thus, in complied with.
Santos v. Robledo we emphasized that when the deed of donation is
recorded in the registry of property the document that evidences the Donation of Future Property Between Future Spouses
acceptance — if this has not been made in the deed of gift — should also
be recorded. And in one or both documents, as the case may be, the notifi the donation of future property partakes of the nature of a testamentary
cation of the acceptance as formally made to the donor or donors should provision and, as such, it is governed by “the provisions on testamentary
be duly set forth. Where the deed of donation fails to show the succession and the formalities of wills
acceptance, or where the formal notice of the acceptance made in a
in donation propter nuptias, it is essential that the donee or donees be
separate instrument is either not given to the donor or else noted in the
either of the future spouses or both of them, although the donor may
deed of donation, and in the separate acceptance, the donation is null and
either be one of the future spouses or a third person
void.
if the donation of future property is made by a third person, Article 84 of
Republic v. Silim
the Family Code does not apply but Article 751 of the New Civil Code, even
The actual knowledge by respondents of the construction and existence of if the donation is one of propter nuptias. In which case, such donation of
the school building fulfi lled the legal requirement that the acceptance of future property is prohibited.
the donation by the donee be communicated to the donor.
Neither Spouse May Donate His or Her Share in the Absolute Community
EFFECT OF DONATIONS AND LIMITATIONS THEREON or Conjugal Partnership of Gains

Art. 750. The donations may comprehend all the present property of the either spouse may dispose of his or her interest in the community
donor, or part thereof, provided he reserves, in full ownership or in property or conjugal partnership of gains only by will234 and not by acts
usufruct, suffi cient means for the support of himself, and of all relatives inter vivos
who, at the time of the acceptance of the donations, are by law entitled
prior to the liquidation of the absolute community or conjugal partnership,
to be supported by the donor. Without such reservation, the donation
the interest of each spouse in the community property or conjugal assets
shall be reduced on petition of any person affected. (634a)
is inchoate, a mere expectancy, which constitutes neither a legal nor an
Art. 751. Donations cannot comprehend future property. By future equitable estate, and does not ripen into title until it appears that there
property is understood anything which the donor cannot dispose of at are assets in the community as a result of the liquidation and settlement.2
the time of the donation. (635)
Thus, the right of the husband or wife to one-half of the conjugal assets or
Art. 752. The provisions of Article 750 notwithstanding, no person may community property does not vest until the dissolution and liquidation of
give or receive, by way of donation, more than he may give or receive by the conjugal partnership or the absolute community, or after dissolution of
will. The donation shall be inoffi cious in all that it may exceed this the marriage, when it is fi nally determined that, after settlement of
limitation. (636) conjugal or absolute community obligations, there are net assets left
which can be divided between the spouses or their respective heirs.2
Extent of Donation
Hence, any disposition of the spouse’s respective shares or interest in the
A donor may donate all his property or part thereof subject only to the conjugal partnership or absolute community shall be void
following limitations:
prior to the liquidation of the absolute community or conjugal partnership,
(1) He cannot donate future property; the interest of each spouse in the community property or conjugal assets
 14

is considered as a future property which cannot be the subject matter of donation is onerous, in which case the donor shall be liable for eviction
donation inter vivos. to the concurrence of the burden. The donor shall also be liable for
eviction or hidden defects in case of bad faith on his part. (638a)
Donor Must Reserve For Himself and Relatives
No Warranty Against Eviction
ne of the basic limitations to the donor’s right to donate is that he must
reserve, either in full ownership or in usufruct, suffi cient means for the As a rule, the donor does not warrant the thing donated against
support of himself and all relatives who, at the time of the acceptance, are eviction.Hence, the donor has no liability to the donee in case of eviction
by law entitled to be supported by the dono except:

if the donor fails to make such reservation, the donation is not void but (1) when there is bad faith on the part of the donor, in which case
subject only to a corresponding reduction at the instance of “any person he is also liable for hidden defects;254 or
affected” and only to the extent necessary for the support of the donor (2) when the donation is onerous, in which case the donor shall
and his relatives be liable up to the amount equal to the burden.

the following are obliged to support each other Art. 755. The right to dispose of some of the things donated, or of some
amount which shall be a charge thereon, may be reserved by the donor;
(1) The spouses; but if he should die without having made use of this right, the property
or amount reserved shall belong to the donee. (639)
(2) Legitimate ascendants and descendants;
GR: if there is a reservation by the donor of the power to dispose or
(3) Parents and their legitimate children and the legitimate and
alienate the property donated and such right is unqualifi ed or
illegitimate children of the latter;
unrestricted, meaning, the donor can alienate the conveyed property in
(4) Parents and their illegitimate children and the legitimate and favor of other persons of his choice at anytime that he should wish to do
illegitimate children of the latter; and (5) Legitimate brothers and sisters, so, the donation is mortis causa.
whether of full or half-blood.
However, in Article 755 of the Civil Code, which contemplates of a
“Art. 196. Brothers and sisters not legitimately related, whether of the situation where there are several properties donated by the donor and he
full or half-blood, are likewise bound to support each other to the full reserved for himself the power to dispose of “some of the things donated,
extent set forth in Article 194, except only when the need for support of or of some amount.” Such reservation is valid and will not affect the
the brother or sister, being of age, is due to a cause imputable to the character of the conveyance as donation inter vivos.
claimant’s fault or negligence.
On the other hand, if there are several properties donated and the donor
any of the persons enumerated in the above-quoted provisions may be has reserved the power to dispose of all of them, which right is neither
deemed as a party in interest in any petition for reduction qualifi ed nor restricted, meaning he can alienate all the conveyed
properties in favor of other persons of his choice at anytime that he should
Donation Must Not Be Inoffi cious wish to do so, the donation is mortis causa, therefore, subject to the rules
governing testamentary provisions and formalities of wills.
A donor’s prerogative to make donations is further subject to the
limitation that he cannot give by donation more than he can give by will.24 Art. 756. The ownership of property may also be donated to one person
and the usufruct to another or others, provided all the donees are living
Inoffi cious donations are, therefore, those which prejudice the legitime of at the time of the donation. (640a)
the compulsory heirs.
Art. 757. Reversion may be validly established in favor of only the donor
whether or not there is impairment of such legitime is a matter that can be for any case and circumstances, but not in favor of other persons unless
determined only upon the death of the donor after considering the they are all living at the time of the donation. Any reversion stipulated
estimated net value of his property at the time of his death.2 by the donor in favor of a third person in violation of what is provided in
the preceding paragraph shall be void, but shall not nullify the donation.
Art. 753. When a donation is made to several persons jointly, it is
(641a)
understood to be in equal shares, and there shall be no right of accretion
among them, unless the donor has otherwise provided. The preceding Art. 758. When the donation imposes upon the donee the obligation to
paragraph shall not be applicable to donations made to the husband and pay the debts of the donor, if the clause does not contain any declaration
wife jointly, between whom there shall be a right of accretion, if the to the contrary, the former is understood to be liable to pay only the
contrary has not been provided by the donor. (637) debts which appear to have been previously contracted. In no case shall
the donee be responsible for debts exceeding the value of the property
When there is a right of accretion among several donees, the share of the
donated, unless a contrary intention clearly appears. (642a)
one who did not accept or could not accept or who died before he had
accepted shall go the other donees in proportion to the interest of each in Art. 759. There being no stipulation regarding the payment of debts, the
the donation. In such a situation, the acceptance by any of the donees of donee shall be responsible therefor only when the donation has been
the donation shall result in its perfection thereby preventing the donor made in fraud of creditors. The donation is always presumed to be in
from revoking that part of the donation corresponding to the share of the fraud of creditors, when at the time thereof the donor did not reserve
one who did not accept or who died prior to his acceptance. suffi cient property to pay his debts prior to the donation. (643)

If the donation is made to the spouses jointly in a regime of conjugal When the donation imposes upon the donee the obligation to pay the
partnership of gains, and with designation of determinate shares, their debts of the donor, the following rules shall apply unless a contrary
respective shares shall pertain to them as his or her own exclusive intention clearly appears:
property.2
(1) the donee is understood to be liable to pay only the debts
In the absence of designation, they shall share and share alike, which appear to have been previously contracted; and
without prejudice to the right of accretion (2) the liability of the donee is limited only to the value of the
property donated.
Art. 754. The donee is subrogated to all the rights and actions which in
case of eviction would pertain to the donor. The latter, on the other
hand, is not obliged to warrant the things donated, save when the
 15

in the absence of any stipulation regarding the payment of the debts of later on the donor died after suffering fi nancial reverses, may such
the donor, the donee shall be responsible therefore only when the donation be revoked if found to be inoffi cious at the time of the donor’s
donation has been made in fraud of creditors death? The answer is clearly in the affi rmative. In this situation, the
ground for the revocation of the donation is Article 752 of the New Civil
The liability, however, of the donee should be limited only to Code.
the value of the property donated.
Art. 752. The provisions of Article 750 notwithstanding, no
REVOCATION AND REDUCTION OF DONATIONS person may give or receive, by way of donation, more than he
may give or receive by will. The donation shall be inoffi cious
Art. 760. Every donation inter vivos, made by a person having no children
in all that it may exceed this limitation
or descendants, legitimate or legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced as provided in the next article, a donation which is either reduced or revoked because it is found to be
by the happening of any of these events: inoffi cious at the time of the subsequent appearance of a child under
Article 760, but later on the donor dies a richer man and, at the time of his
(1) If the donor, after the donation, should have legitimate or legitimated
death, the previous donation could have been accommodated in the free
or illegitimate children, even though they be posthumous;
portion, may the donee be entitled to the return of the thing donated or its
(2) If the child of the donor, whom the latter believed to be dead when value? The answer must be in the negative. In this second situation, the
he made the donation, should turn out to be living; ground for the revocation of the donation is Article 760, which is an
altogether different ground from that provided in Article 752
(3) If the donor should subsequently adopt a minor child. (644a)
Art. 761. In the cases referred to in the preceding article, the donation
as a rule, once the donation is accepted, it is generally considered shall be revoked or reduced insofar as it exceeds the portion that may be
irrevocable. freely disposed of by will, taking into account the whole estate of the
donor at the time of the birth, appearance or adoption of a child. (n)
The exceptions to irrevocability are the following grounds expressly
provided in Articles 752, 760, 764 and 765 of the New Civil Code: there shall be a provisional liquidation of the estate of the donor at the
time of the birth, appearance or adoption of a minor child for the purpose
(1) the subsequent appearance of children; of determining the donor’s estate and the child’s legitime.
(2) the non-fulfi llment of charges imposed in the donation;267
(3) the ingratitude of the donee;268 if there is no impairment of the child’s legitime — or when the donation
(4) the fact that the donation is inoffi cious. does not exceed the free portion — then the donation shall not be
(5) that the donor did not reserve suffi cient property for his own and reduced nor revoked.
his family’s support;270
Art. 762. Upon the revocation or reduction of the donation by the birth,
Subsequent Appearance of Children appearance or adoption of a child, the property affected shall be
returned, or its value if the donee has sold the same. If the property is
(1) if the donor, after the donation, should have legitimate or mortgaged, the donor may redeem the mortgage, by paying the amount
legitimated or illegitimate children, even though they be guaranteed, with a right to recover the same from the donee. When the
posthumous; property cannot be returned, it shall be estimated at what it was worth
(2) if the child of the donor, whom the latter believed to be dead at the time of the donation. (645a)
when he made the donation, should turn out to be living; or
(3) if the donor subsequently adopt a minor child. Effects of Reduction or Revocation of Donation

Note that the happening of any of these events shall only give rise to a 1. The property affected shall be returned, or if it cannot be
cause or ground to revoke the donation. the donor shall be entitled to returned, at least its value;
demand either for the reduction or revocation of the donation. Hence, if 2. If the property is mortgaged, the donor may redeem the
the proper action for revocation is not instituted, or if it is instituted but mortgage, by paying the amount guaranteed, with a right to
after the lapse of the statutory period of prescription, the donation will recover his payment from the donee.277 When the property
forever be considered valid. cannot be returned, it shall be estimated at what it was worth
at the time of the donation.278
Revocation, as distinguished from reduction, affects the entire 3. The donee shall return the fruits of property affected only from
donation while the latter affects only a part or a portion thereof the fi ling of the complaint.

For any of these events to be considered as grounds for the revocation of Art. 763. The action for revocation or reduction on the grounds set forth
a donation it is necessary, however, that the donor, at the time of the in Article 760 shall prescribe after four years from the birth of the fi rst
donation, did not have, or at least he believed that he did not have, any child, or from his legitimation, recognition or adoption, or from the
children or descendants, whether legitimate, legitimated, illegitimate or judicial declaration of fi liation, or from the time information was
adopted received regarding the existence of the child believed dead. This action
cannot be renounced, and is transmitted, upon the death of the donor,
if the “adopted” child is a person of legal age, the donation may not be
to his legitimate and illegitimate children and descendants. (646a)
reduced or revoked pursuant to Article 760 although it may be subjected
to either reduction or revocation pursuant to Article 752. If, however, the child dies prior to the fi ling of the action, it is believed
that the action can no longer be brought.
As distinguished from Article 752, in relation to Article 771, in Article 760
the “inoffi ciousness” of the donation is to be determined during the This action is not subject to waiver or renunciation and is transmitted,
lifetime of the donor, i.e., at the time of the birth, appearance or adoption upon the death of the donor, to his legitimate or illegitimate children and
of a minor child. In Article 752, in relation to Article 771, however, the descendants,282 if the donor dies within the four-year prescriptive
“inoffi ciousness” of the donation is determined only at the time of death period
of the donor.
Art. 764. The donation shall be revoked at the instance of the donor,
If, at the time of the subsequent appearance of a child under Article 760, when the donee fails to comply with any of the conditions which the
the entire donation is found to be within the free portion of the donor’s former imposed upon the latter. In this case, the property donated shall
estate, in which case, the donation is neither reduced nor revoked, and be returned to the donor, the alienations made by the donee and the
 16

mortgages imposed thereon by him being void, with the limitations fulfi llment or contravention of conditions specifi ed in the deed of
established, with regard to third persons, by the Mortgage Law and the donation if and when the parties have not agreed on the automatic
Land Registration Laws. his action shall prescribe after four years from revocation of such donation upon the occurrence of the contingency
the noncompliance with the condition, may be transmitted to the heirs contemplated therein. That is not the situation in the case at bar.
of the donor, and may be exercised against the donee’s heirs. (647a)
Art. 765. The donation may also be revoked at the instance of the donor,
Effects of Revocation under Article 764 by reason of ingratitude in the following cases:

1. the property donated shall be returned to the donor.2 (1) If the donee should commit some offense against the person, the
honor or the property of the donor, or of his wife or children under his
the donee shall return not only the property but also the fruits parental authority;
thereof which he may have received after having failed to fulfi ll
the condition (2) If the donee imputes to the donor any criminal offense, or any act
involving moral turpitude, even though he should prove it, unless the
2. Any alienation or encumbrance made by the donee with crime or the act has been committed against the donee himself, his wife
respect to the donated property shall be considered void, or children under his authority;
subject, however, to the rights of a buyer or mortgagee in good
faith (3) If he unduly refuses him support when the donee is legally or morally
bound to give support to the donor. (648a)
While Article 764 uses the term “conditions,” what are actually being
referred to in said article are the obligations or charges imposed by the Art. 766. Although the donation is revoked on account of ingratitude,
donor on the done nevertheless, the alienations and mortgages effected before the notation
of the complaint for revocation in the Registry of Property shall subsist.
The action for revocation based on Article 764 shall prescribe after four (4) Later ones shall be void. (649)
years from the non-compliance with the condition.292 Such action is
transmissible to the heirs of the donor and may be exercised against the Art. 767. In the case referred to in the fi rst paragraph of the preceding
heirs of the donee. article, the donor shall have a right to demand from the donee the value
of property alienated which he cannot recover from third persons, or the
De Luna v. Abrigo sum for which the same has been mortgaged. The value of said property
shall be fi xed as of the time of the donation. (650)
Article 764 of the New Civil Code does not apply to onerous donations in
view of the specifi c provision of Article 733 providing that onerous Art. 768. When the donation is revoked for any of the causes stated in
donations are governed by the rules on contracts. Invoking the provisions Article 760, or by reason of ingratitude, or when it is reduced because it
of Article 733, the Court further held that in determining the prescriptive is inoffi cious, the donee shall not return the fruits except from the fi ling
period of an action to revoke an onerous donation the rules on contracts of the complaint. If the revocation is based upon noncompliance with
and the general rules on prescription and not the rules on donations are any of the conditions imposed in the donation, the donee shall return
applicable to onerous donations.287 Applying the rule of the Supreme not only the property but also the fruits thereof which he may have
Court in De Luna v. Abrigo, which cited Article 1144(1) of the New Civil received after having failed to fulfi ll the condition. (651)
Code as legal basis, the prescriptive period of an action for revocation of
an onerous donation by reason of non-compliance with the Art. 769. The action granted to the donor by reason of ingratitude cannot
condition/obligation imposed is ten (10) years counted from the time be renounced in advance. This action prescribes within one year, to be
within which the donee must comply with the conditions/obligations of counted from the time the donor had knowledge of the fact and it was
the donation. possible for him to bring the action. (652)

Article 764 Does Not Apply When Donation Expressly Provides For Art. 770. This action shall not be transmitted to the heirs of the donor, if
Automatic Reversion the latter did not institute the same, although he could have done so,
and even if he should die before the expiration of one year. Neither can
The prescriptive period in Article 764 does not apply because in such a this action be brought against the heir of the donee, unless upon the
case a judicial declaration revoking the donation is not necessary. Instead, latter’s death the complaint has been fi led. (653)
the applicable prescriptive period is ten (10) years as provided for in
Article 1144(1), since the action is for the enforcement of a written if upon the death of the donor the one-year period has not yet
contract commenced to run because it was not possible for the donor to bring the
action during his lifetime, the right to bring the same is transmitted to the
Article 764 of the New Civil Code is intended to provide a judicial remedy heirs upon the donor’s dea
in case of non-fulfi llment or contravention of conditions specifi ed in the
deed of donation if and when the parties have not agreed on the Art. 771. Donations which in accordance with the provisions of Article
automatic revocation of such donation upon the concurrence of the 752, are inoffi cious, bearing in mind the estimated net value of the
contingency contemplated therein. donor’s property at the time of his death, shall be reduced with regard to
the excess; but this reduction shall not prevent the donations from
Roman Catholic Archbishop of Manila v. Court of Appeals taking effect during the life of the donor, nor shall it bar the donee from
appropriating the fruits. For the reduction of donations the provisions of
contracts providing for automatic revocation, judicial intervention is
this Chapter and of Articles 911 and 912 of this Code shall govern. (654)
necessary not for purposes of obtaining a judicial declaration rescinding a
contract already deemed rescinded by virtue of an agreement providing donations which exceeds the freely disposable portion of the donor’s
for rescission even without judicial intervention, but in order to determine estate and thus impairs the legitime of the compulsory heirs are inoffi
whether or not the rescission was proper. When a deed of donation, as in cious and subject to reduction with regard to the excess.
this case, expressly provides for automatic revocation and reversion of the
property donated, the rules on contract and the general rules on How to Determine Inoffi ciousness of Donations
prescription should Apply, and not Article 764 of the Civil Code.
These rules are set forth in Articles 908, 909 and 910 of the Code, on the
THe Court of Appeals committed no error in holding that the cause of basis of which the following stepby-step procedure has been outlined:
action of herein private respondents has not yet prescribed since an action
to enforce a written contract prescribes in ten (10) years. It is our view 3. time of the testator’s death;
that Article 764 was intended to provide a judicial remedy in case of non-
 17

(3) determination of the obligations, debts, and charges which Art. 773. If, there being two or more donations, the disposable portion is
have to be paid out or deducted from the value of the property not suffi cient to cover all of them, those of the more recent dates shall
thus left; be suppressed or reduced with regard to the excess. (656)
(4) the determination of the difference between the assets and the
liabilities, giving rise to the hereditary estate; If they are of the same date, they shall be reduced proportionately.
(5) the addition to the net value thus found, of the value, at the
As in the case of revocation of donations for any of the causes stated in
time they were made, of donations subject to collation; and
Article 760 and by reason of ingratitude, when the donation is reduced
(6) the determination of the amount of the legitimes by getting
because it is inoffi cious, the donee shall not return the fruits except from
from the total thus found the portion that the law provides as
the fi ling of the complaint.31
the legitime of each respective compulsory heir.

Deducting the legitimes from the net value of the hereditary estate leaves
the freely disposable portion by which the donation in question must be
measured. If the value of the donation at the time it was made does not
exceed that difference, then it must be allowed to stand. But if it does, the
donation is inoffi cious as to the excess and must be reduced by the
amount of said excess.

the mere fact that the donation turns out to be inoffi cious at the time of
the donor’s death does not result in the automatic revocation of the
donation. The provision of Article 752, in relation to Article 771, is not self-
executory

if no action for revocation is fi led, or if it is fi led after the lapse

of the prescriptive period, the donation is forever considered as
valid.

Art. 772. Only those who at the time of the donor’s death have a right to
the legitime and their heirs and successors in interest may ask for the
reduction of inoffi cious donations. Those referred to in the preceding
paragraph cannot renounce their right during the lifetime of the donor,
either by express declaration, or by consenting to the donation. The
donees, devisees and legatees, who are not entitled to the legitime and
the creditors of the deceased can neither ask for the reduction nor avail
themselves thereof. (655a)

Who May Question Inoffi ciousness of Donations

persons who are not entitled to the legitime (therefore not considered as
compulsory heirs), such as donees, devisees, legatees and creditors of the
deceased donor, cannot ask for the reduction or revocation of inoffi cious
donations.3

During the lifetime of the donor, the compulsory heirs who are entitled to
ask for the reduction or revocation of inoffi cious donations cannot
renounce their right, whether the renunciation be done expressly or
impliedly.30

Prescriptive Period on the Ground of Inoffi ciousness

The Civil Code specifi es the following prescriptive periods of actions for
the reduction or revocation of donations inter vivos:

(1) four years, in cases of subsequent birth,

appearance, recognition or adoption of a child;309
(2) four years, for non-compliance with conditions of
the donation;310
(3) one year, for reason of ingratitude;311 and
(4) at any time during the lifetime of the donor and his
relatives entitled to support, for failure of the donor
to reserve property for his or their support.

Imperial v. Court of Appeals

Action for reduction or revocation of an inoffi cious donation prescribes in

ten (10) years following Article 1144 of the New Civil Code

From when shall the ten-year period be reckoned?

Since the cause of action to enforce a legitime accrues only upon the
death of the donor-decedent for it is only then that the net estate may be
ascertained and on which basis, the legitimes may be determined the ten
year period commences to run only upon the death of the donor-
decedent.