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Art. 760. Every donation inter vivos, made by a person having no children or descendants, legitimate or legitimated by subsequent marriage, or illegitimate, may be revoked or reduced as provided in the next article, by the happening of any of these events:

(1) If the donor, after the donation, should have legitimate or legitimated or illegitimate children, even though they be posthumous;

(2) If the child of the donor, whom the latter believed to be dead when he made the donation, should turn out to be living;

(3) If the donor subsequently adopt a minor child. (644a)

Grounds for revocation and reduction of donation

1. Revocation affects the whole donation and is allowed during the lifetime of the donor. The grounds are:

a. Birth, appearance, or adoption of a child (760);

b. Non-fulfillment of a resolutory condition imposed by the donor (764); and

c. Ingratitude of the donee. (765)

2. Reduction generally affects a portion only of the donation (unless the donee has no free portion left) and is allowed during the lifetime of the donor or after his death. The grounds are:

a. Failure of the donor to reserve sufficient means for support of himself or dependent relatives; (750)

b. Failure of the donor to reserve sufficient property to pay off his existing debts (759);

c. Inofficiousness, that is, the donation exceeds that which the donor can give by will; (752, 771) and

d. Birth, appearance, or adoption of a child. (760)

 A donation that has been duly perfected in accordance with law should stand until after its revocation should have been asked and granted in the proper proceeding.

Birth, appearance, or adoption of a child

 This article applies to all donations inter vivos. It does not apply: a. to donations mortis causa for they are revocable at will by the

donor (testator);

c. to donations propter nuptias for they are revocable only for the causes provided in the Family Code – see Art 86 of the Fam Code5_.

 It is applicable when the donor, at the time he made the donation, did not have any child or descendant or erroneously thought so; otherwise, Article 771 in relation to Article 752 shall apply.

 Every donation is subject to revocation or reduction by the happening of any of the events mentioned which are in the nature of implied

resolutory conditions. Birth of a child

 Here, the donor had no child whether legitimate, legitimated, or illegitimate at the time of the donation, and thereafter, a child was born even if posthumous.

 What if the child was already conceived but not yet born, what provision should apply, Article 760 or 771?

o It depends.

o If the donor was aware of such conception, Article 771. Hence, he cannot revoke the donation upon the birth of the child. o But, if he did not know of such conception when he made the

donation, the situation is similar to the appearance of an absent child thought by the donor to be dead. For purposes of the law, he had no child.

 The rule is that a conceived child is considered born for all purposes favorable to it. Since to consider the child as already born would make the donation irrevocable and would be unfavorable to it, the subsequent birth of the child should revoke or reduce the donation.

Appearance of a child

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Art. 86. A donation by reason of marriage may be revoked by the donor in the following cases: (1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

(2) When the marriage takes place without the consent of the parents or guardian, as required by law;

(3) When the marriage is annulled, and the donee acted in bad faith; (4) Upon legal separation, the donee being the guilty spouse; (5) If it is with a resolutory condition and the condition is complied with;

(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a)

 In this case, the donor had only one child whom he believed to have already died at the time of the donation.

 The note says “child”, so the subsequent appearance of a descendant, like a grandkid, would not revoke the donation

o But the donation may be reduced under Article 771 as inofficious if it impairs the legitime of the descendant. Adoption of a child

 The subsequent adoption of a minor child is also a ground for the revocation or reduction of a donation.

 It’s an exception to the rule that a donation inter vivos shall be irrevocable by the donor.

 Again, the law says “minor child”; hence the adoption of a person of majority age although it is allowed in certain cases is not a ground under No. 3.

Case doctrine

 Revocation upon birth of a child and return of property to donor are not self-operative or self-executory. There is a need for judicial action. (Oracion v Juanillo)

Art. 761. In the cases referred to in the preceding article, the donation shall be revoked or reduced insofar as it exceeds the portion that may be 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)

Extent and basis of revocation or reduction

Birth, appearance, or adoption of a child.

 A person may not give by way of donation more than he may give by will.

 The amount subject to revocation or reduction is, therefore, the excess over the portion that may be freely disposed of by will.

 The basis of revocation or reduction is the value of the whole estate of the donor at the time of the birth, appearance, or adoption of a child, and not at the time of the death of the donor as in the case of inofficious donations under Article 771.

o To the value of the estate shall be added the value of the donation at the time it was made because it would have been still part of the estate had not the donation been made.

 The burden of proof is on the plaintiff-donor who must allege and establish the requirements prescribed by law.

In the case of inofficious donations.

 What is sought to be protected by Article 760 is only the prospective or presumptive legitime of the child because that is the only portion which cannot be disposed of.

 If the donation does not exceed the free portion at the time of the birth, appearance, or adoption, there will be no revocation or reduction but it may still be reduced under Article 771 if it cannot be covered by the free portion computed as of the time of the donor’s death.

Let us suppose Ron who was then childless, donated a property worth P50 to Erin, a close “friend.” Subsequently, a child was born to Ron whose estate at the time was P30. His total estate then including the value of the property donated was P80.

Since the legitime of a legitimate child is ½ of the estate or P40, and therefore, the free portion is also P40, the donation must be reduced by P10. But if the value of the estate was P70, the donation is not revoked or reduced because it does not exceed the free portion of P60 [(P70 + 50)/2]. However, should the estate of Ron be less than P50, excluding the P50 donation, at the time of his death (for example, P40), it shall be subject to reduction to the extent that it is inofficious (i.e. P50 – P45 [(P50+P40/2) = P50) under article 771.

Case doctrines

 Donor has the burden to allege and establish the requirements prescribed by law for which the annulment or reduction of the donation can be based. (Cruz v CA)

Art. 762. Upon the revocation or reduction of the donation by the birth, 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 mortgaged, the donor may redeem the mortgage, by paying the amount guaranteed, with a right to recover the same from the donee.

When the property cannot be returned, it shall be estimated at what it was worth at the time of the donation. (645a)

Obligation of donee upon revocation or reduction

 In case of revocation or reduction under Article 760, the obligation of the donee depends upon the situation of the property donated.

o If the property affected is still in his possession, he must return the same.

o If he has sold the property, he must give its value.

o If the property has been mortgaged by him, and the donor redeemed the mortgage, he must reimburse the donor. o If the property cannot be returned, as when it ahs been lost or

destroyed, he must return its value at the time of the perfection of the donation.

 It is presumed that the price at which the property is sold is its value. o If the price is less than its actual value, the donee is not liable

for the difference absent proof of bad faith.

o When the property cannot be returned, its value shall be determined not as of the time of the loss but as of the time of the donation.

Art. 763. The action for revocation or reduction on the grounds set forth in article 760 shall prescribe after four years from the birth of the first child, or from his legitimation, recognition or adoption, or from the judicial declaration of filiation, or from the time information was received regarding the existence of the child believed dead.

This action cannot be renounced, and is transmitted, upon the death of the donor, to his legitimate and illegitimate children and descendants. (646a)

Prescription of action for revocation or reduction

 The donation is revoked ipso jure by operation of law, by the happening of any of the events mentioned in Article 760.

o Hence, it is not really essential that an action be brought to revoke the donation.

o BUT, the revocation is not self-operative or self-executory.

 If the donee should refuse to comply with his obligation under Article 762, resort to judicial action is necessary under Article 763. But since it is the law itself that declares the revocation, the action is strictly not an action to revoke but one to have the court expressly declare the revocation which has already taken place by operation of law.

 The period within which to bring the action is 4 years. The time to start counting depends upon the cause:

o Birth of the first child;

o From time of legitimation, recognition or adoption; or o From judicial declaration of filiation

o From the time information was received regarding the existence of the child believed dead.

 Not from the actual appearance of the absent child.

 If the donor dies within the period, the action is transmitted to his legitimate and illegitimate children and descendants (not the spouse or ascendants of the donor).

 In case more than one cause or ground for revocation or reduction concur, the period of prescription must run from the earliest cause.

 Reduction of a donation upon the allegation of impairment of legitime is not controlled by a particular prescriptive period for which reason the period shall be governed under the ordinary rules of prescription. Under Article 1144, the action must be brought within 10 years from the time the right of action accrues, which is the death of the donor.

 The action cannot be waived. (Compare to the next article!)

Art. 764. The donation shall be revoked at the instance of the donor, when the donee fails to comply with any of the conditions which the former imposed upon the latter.

In this case, the property donated shall be returned to the donor, the alienations made by the donee and the mortgages imposed thereon by him being void, with the limitations established, with regard to third persons, by the Mortgage Law and the Land Registration Laws.

This action shall prescribe after four years from the

noncompliance with the condition, may be transmitted to the heirs of the donor, and may be exercised against the donee's heirs. (647a)

Failure to comply with conditions

 A donation may be revoked in case of failure of the donee to comply with “any of the conditions” imposed by the donor upon him.

 The word “conditions” actually refers to obligations, charges, or burdens imposed by the donor; it may also refer to a resolutory condition. Hence, what is contemplated are onerous or modal donations.

 Of course, it implies that there is an existing donation.

 The condition must be fulfilled within the period fixed by the donor. o No period? The court shall determine such period as may have

been contemplated by the donor.

 In case the donee fails to comply, the property donated reverts to the donor, along with the fruits of the property which the donee may have received after having failed to fulfill the condition.

 If the property has been alienated or mortgaged, the alienation or mortgage shall be void SUBJECT to the rights of innocent third persons under registration laws who may have taken the property donated without notice of the condition imposed. (Public policy baby!)

 In case of non-fulfillment by the donee of any of the conditions imposed by the donor, the donation shall be revoked at the instance of the donor.

o But, the donor may instead file for an action of specific performance to compel the donee to comply with the conditions.

 The action must be brought within 4 years from the non-compliance with the condition – it can only be brought by the donor or his heirs against the donee’s heirs (compare to Articles 769 and 770).

 The death of the donor or the donee does not bar the action to revoke for failure of the donee to comply with the conditions, provided the prescriptive period has not yet expired.

 Unlike the action for revocation or reduction under Article 763, the action may be waived because the condition is purely contractual in nature. Is court action necessary?

 In any case, a court action is necessary if the donee refuses to return the property or to comply with the conditions.

 The deed of donation, however, may provide that violation of any of its conditions shall cause the automatic rescission of the contract. In such case, upon the violation, the donation is automatically revoked, without need of a judicial declaration.

o Except where the donee denies the donor’s right to rescind, in which case, judicial intervention is necessary to determine whether or not the rescission is proper.

 In the absence of an agreement in the donation providing of an automatic rescission, a judicial declaration revoking said donation will be necessary.

Case doctrines

 When land is donated on several express conditions, acceptance by the donee will be understood to include all of the conditions not umistakably rejected. (Barreto v Manila)

 When the donee has entered into possession of the property, effect will be given to the donation according to the terms of the offer and acceptance, although the formal deed has not been executed. (Barreto)

 If there is no fulfillment with the resolutory condition, the donation may now be revoked and all rights which the donee may have acquired under it shall be deemed lost and extinguished. (Central Phil University v CA)

 Article 764 does not apply to onerous donations because onerous donations are governed by the rules of Contracts. Hence, the prescription period is 10 years, not 4 years. (De Luna v Abrigo)

o While courts are given the power to fix the duration when the condition is to be fulfilled when none is given, if the facts show that a reasonable period has already been allowed the donee to avail of the opportunity to comply with the condition, then the courts will no longer give the donee a period. (Central Phil Uni) o The legal possibility of bringing the action begins with the

expiration of a reasonable opportunity of the donee to fulfill what has been charged upon it by the donor. (Sec of Education v Heirs of Dulay)

 Nothing in law prohibits parties from entering into an agreement that violation of the terms of the contract would cause cancellation thereof even without court intervention.

o In cases like these, judicial intervention is necessary not for purposes of obtaining a judicial declaration rescinding a contract already deemed rescinded but in order to determine whether or not the rescission was proper. (De Luna)

 When the deed of donation expressly provides for automatic rescission and reversion of the property donated, the rules on contract and the general rules on prescription should apply, not 764. (Roman Catholic Archbishop of Manila v CA)

o A donor cannot revoke the donation on the grounds for non- compliance of an impossible condition. (Archbishop of Manila v CA)

 A declaration of petitoner’s absolute ownership appears legally possible only when the deed of donation is contextually declared peremptorily revoked. (Dolar v Barangay Lublub)

 The act of selling property to a 3rd _{party cannot be considered as a valid}

act of revocation of the deed of donation for the reason that a formal case to revoke the donation must be filed which speaks of an action that has a prescriptive period of 4 years from non-compliance with the condition. In this case, there was no provision of automatic rescission, thus placing the case within the ambit of Article 764. (Austria-Magat v CA)

 When the donation is onerous and does not fix a period to comply with the condition, the courts should fix a period to uphold the greatest reciprocity of rights. If it is gratuitous, then they should not, to uphold the least reciprocity of rights and interests.

 It’s important to determine whether or not the donation is onerous or not so that we know what law to apply.

Art. 765. The donation may also be revoked at the instance of the donor, by reason of ingratitude in the following cases:

(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 parental authority;

(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 crime or the act has been committed against the donee himself, his wife or children under his authority;

(3) If he unduly refuses him support when the donee is legally or morally bound to give support to the donor. (648a)

Revocation by reason of ingratitude of the donee

 Article 765 does not apply to donations mortis causa and onerous donations.

 A donation propter nuptias may be revoked by the donor when the donee has committed an act of ingratitude as specified in Article 765.

 The enumeration is exclusive and cannot be enlarged.

 The act of ingratitude must have been committed by the donee himself because the duty of gratitude is personal. An act imputable to the husband or wife or the hot mistress of the donee is not a ground for