Property rules

A change of heart and mind

Thelma came across an advertisement placed by spouses Norms and Eddie, in the classified ads section of a widely circulated newspaper for the sale of their 10-door apartment and another property.

Thelma expressed interest in buying the two properties so she negotiated for the purchase through a real estate broker authorized by the spouses. Thelma made a visual inspection of the said lots with the real estate broker and was shown the tax declarations, real property tax payment receipts, location plans, and vicinity maps relating to the properties.


Thelma met with the spouses. She made a definite offer to buy the properties to Eddie with the knowledge and conformity of his wife, Norms, in the presence of the real estate broker. After bargaining, Thelma and Eddie agreed on the purchase price to be paid on installment basis with downpayments.

The agreement was handwritten by Thelma and signed by Eddie. When Thelma pointed out the conjugal nature of the properties, Eddie assured her of his wife’s conformity and consent to the sale. The formal typewritten Contracts to Sell were thereafter prepared by Thelma. The following day, Thelma, the real estate broker and Eddie met in the latter’s office for the formal signing of typewritten Contracts to Sell.


After Eddie signed the contracts, Thelma delivered to him the two checks representing the downpayments in the presence of the real estate broker and an employee in Eddie’s office. The contracts were given to Eddie for the formal affixing of his wife’s signature.

The following day, Thelma received a call from respondent Norms, requesting a meeting to clarify some provisions of the contracts. To accommodate her queries, Thelma, accompanied by her lawyer, met with Eddie and Norms and the real estate broker in Makati. During the meeting, handwritten notations were made on the contracts to sell, so they arranged to incorporate the notations and to meet again for the formal signing of the contracts.

When Thelma met again with the spouses and the real estate broker at Eddie’s office for the formal affixing of Norms’ signature, she was surprised when the spouses informed her that they were backing out of the agreement because they needed “spot cash” for the full amount of the consideration. Thelma reminded Eddie and Norms that the contracts to sell had already been duly perfected and Norms’ refusal to sign the same would unduly prejudice her. Still, Norms refused to sign the contracts. Checks issued by Thelma were returned to her by Eddie.

Q: Were the contracts to sell between Thelma and the spouses duly perfected such that the latter could no longer back out of the agreement?

A: No. The parties were still negotiating for the sale of the parcels of land. The perfection of the contract was not attained because of Norms’ refusal to affix her written conformity even if Thelma and Eddie came to an agreement as to the price and the terms of payment and the downpayment was paid by the former to the latter.

Q: How come the contracts were still not considered duly perfected ones?

A: The law requires that the disposition of a conjugal property by the husband as administrator in appropriate cases requires the written consent of the wife, otherwise, the disposition is void. Thus, Article 124 of the Family Code provides: Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly.


In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance which must have the authority of the court or the written consent of the other spouse.

In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

The properties subject of the contracts in this case were conjugal; hence, for the contracts to sell to be effective, the consent of both husband and wife must concur.

Q: Assuming that Norms actively participated in the negotiations for the sale of the properties, what effect, if any, does it have on the contracts to sell?

A: Even if Norma actively participated in negotiating for the sale of the subject properties, her written consent to the sale is required by law for its validity. Norms may have been aware of the negotiations for the sale of their conjugal properties, yet such awareness is not consent.

Q: Can Thelma compel Norms to affix her signatures to the contracts to sell under Article 124 of the Family Code?

A: No. Norms is correct insofar as she alleges that if the written consent of the other spouse cannot be obtained or is being withheld, the matter may be brought to court which will give such authority if the same is warranted by the circumstances. However, it should be stressed that court authorization under Art. 124 is only resorted to in cases where the spouse who does not give consent is incapacitated.

In this case, Thelma failed to allege and prove that Norms was incapacitated to give her consent to the contracts. In the absence of such showing of the wife’s incapacity, court authorization cannot be sought.

(Source: Jader-Manalo vs. Spouses Camaisa, G.R. No. 147978, Jan. 23, 2002)

Ma. Soledad Deriquito-Mawis is Dean, Lyceum of the Philippines University; Chairperson, Philippine Association of Law Schools; founder, Mawis Law Office

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