SUPREME COURT DECISIONS

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^{SEPARATE (CONCURRING) OPINION}

VITUG, J.:

I share the opinion expressed by my esteemed colleague, Mme. Justice Minerva P.Gonzaga-Reyes, in her ponencia.

I just would like to add that a donation would not be legally feasible if the donor has neither ownership nor real right that he can transmit to the donee. Unlike an ordinary contract, a donation, under Article 712, in relation to Article 725 of the Civil Code is also a mode of acquiring and transmitting ownership and other real rights by an act of liberality whereby a person disposes gratuitously that ownership or real right in favor of another who accepts it. It would be an ineffecacious process if the donor would have nothing to convey at the time it is made.

Article 744 of the Civil Code states that the donation of the same thing to two or more different donees shall be governed by the provisions concerning the sale of the same thing to two or more persons, i.e., by Article 1544 of the same Code, as if so saying that there can be a case of double donations to different donees with opposing interest. Article 744 is a new provision, having no counter part in the old Civil Code, that must have been added unguardedly. Being a mode of acquiring and transmitting ownership or other real rights, a donation once perfected would deny the valid execution of a subsequent inconsistent donation (unles perhaps if the prior donation has provided a suspensive condition which still pends when the later donation is made).

In sales, Article 1544, providing for the rules to resolve the conflicting rights of two or more buyers, is appropriate since the law does not prohibit but, in fact, sanctions the perfection of a sale by a non-owner, such as the sale of future things or a short sale, for it is only at the consummation stage of the sale, i.e., delivery of the thing sold, that ownership would be deemed transmitted to the buyer. In the meanwhile, a subsequent sale to another of the same thing by the same seller can still be a legal possibility. This rule on double sales finds no relevance in an ordinary donation where the law requires the donor to have ownership of the thing or the real right he donates at the time of its perfection (see Article 750, Civil Code) since a donation constitutes a mode, not just a title in an acquisition and transmission of ownership.