2013 (Civil Law) Bar Exam Questions: Essay Question 5

[Discuss/answer the question below. Or see Civil Law Instructions; Civil Law Instructions; Civil Law Essay Questions: 1, 2, 3, 46, 7, 8, 9 and 10; Civil Law Multiple Choice Questions: 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10; See also 2013 Bar Exam: Information, Discussions, Tips, Questions and Results]

V.

Josefa executed a deed of donation covering a one-hectare rice land in favor of her daughter, Jennifer. The deed specifically provides that:

“For and in consideration of he love and service Jennifer has shown and given to me, I hereby freely, voluntarily and irrevocably donate to her myone-hectare rice land covered by TCT No. 11550, located in San Fernando, Pampanga. This donation shall take effect upon my death.”

The deed also contained Jennifer’s signed acceptance, and an attached notarized declaration by Josefa and Jennifer that the land will remain in Josefa’s possession and cannot be alienated, encumbered, sold or disposed of while Jose fa is still alive.

Advise Jennifer on whether the deed is a donation inter vivos or mortis causa and explain the reasons supporting your advice. (8%)

20 comments

    1. Yup this is intervivos, i just cited the distinction of inter vivos and mortis causa based on jurisprudence then I applied the same to the tenor of the deed.

  1. Mortis causa ang sagot ko dito kasi the donation will take effect upon the death of the donor. Tsaka may prohibition to alienate or dispose. Inter vivos ba ang sagot? Haha. Mali ako.

    1. Actually case ito, thats where I took the distinction between mortis causa and inter vivos which I applied to the facts. Dun sa case na yun it was held that the prohibition to alienate while donor is alive and the retention of possession by the donor and the effectivity after death are mere indication of the intention of the donor to preserve the property for the donee .

      1. Ako din mali. Hahaha kasi ang kinonsider ko yung time of effectivity na nakalagay sa deed. Anyway hopefully may partial points yung discussion ko ng mortis causa vs inter vivos.

  2. Inter vivos yung clear cut codal saka case – the part “for and in consideration of the love…”. But then again, the reservation made it Mortis Causa. Padiinan na lang siguro ng argument.

    1. intervivos sya kung yung conditions lang ay yung mga naka-italic, kaso lang sa last paragraph andun yung for me nagpapa mortis-causa sa case 🙂

  3. One characteristic of a donation mortis causa is its revocability. It may be revoked at will by the donor during his lifetime. So kung may agreement not to alienate, encumber, etc between the donor and donee, parang naging irrevocable na ang donation di ba? Kaya naging inter vivos. Mali ako dito. Mortis causa sagot ko.

  4. I think it is mortis causa. My answer was that it is mortis causa. My line of reasoning was something like:

    “A gift made by a person in sickness, who, apprehending his dissolution near, delivers, or causes tobe delivered, to another the possession of any personal goods, to keep as his own incase of the donor’s decease. The civil law defines it to be a gift underapprehension of death; as when anything is given upon condition that, if the donordies, the donee shall possess it absolutely. or return it if the donor should survive orshould repent of having made the gift, or if the donee should die before the donor. A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only incase of the death of the giver. A donation mortis causa (inprospect of death) is an act to take effect when the donor shall no longer exist, bywhich he disposes of the whole or a part of his property, and which is irrevocable.”…… taken from Black Law Dictionary.

    1. 5th take binasa ko po yung case na nai cite mo, it was ganuelas case. Im not insisting my point ha but i just want to elucidate my own view because i dont think the facts are exactly alike because in that case there is a caveat/ proviso which states that in case the donee predecease the donor the donation is rescinded which only shows that it is still revocable at walang complete transfer kaya mortis causa sya in that case. Feeling ko lang absent the same proviso in the problem in the bar makes it intervivos because totally irrevocable na sya and the transfer being complete even in its formality. One of the characteristics of an inter vivos donation is that the transfer is immediately effective but the parties may provide that it shall actually take effect on some other period like at the time of the death of the donor which is the situation in this problem. Kasi here kahit the donee predecease the donor, the donee still owns the donated property which could be passed on to her own heirs, the heirs in turn in case the donor is still alive is oblige to respect the declaration of the donor and donee not to dispose of the same being one of the obligation attached to the donated property

  5. Mortis Causa.

    The distinction between a transfer
    inter vivos and mortis causa is
    important as the validity or revocation
    of the donation depends upon its nature.
    If the donation is inter vivos, it must be
    executed and accepted with the formalities
    prescribed by Articles 748 and 749 of
    the Civil Code, except when it is onerous in
    which case the rules on contracts will apply.
    If it is mortis causa, the donation must be in
    the form of a will, with all the formalities
    for the validity of wills, otherwise it is
    void and cannot transfer ownership.

    The distinguishing characteristics of a
    donation mortis causa are the following:

    1. It conveys no title or ownership to the
    transferee before the death of the transferor;
    or, what amounts to the same thing, that the
    transferor should retain the ownership
    (full or naked) and control of the
    property while alive;

    2. That before his death, the transfer
    should be revocable by the transferor at
    will, ad nutum; but revocability may be
    provided for indirectly by means of a reserved
    power in the donor to dispose of the properties conveyed;

    3. That the transfer should be void if the transferor
    should survive the transferee.

    http://sc.judiciary.gov.ph/jurisprudence/2003/apr2003/123968.htm

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