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^{CONCURRING OPINION}

VITUG, J.:

The questioned sale was concluded on 27 February 1987, before the Family Code took effect; accordingly, the transaction could still be aptly governed by the then governing provisions of the Civil Code. Under this Code, the husband could not alienate or encumber any conjugal real property (acquired by the partnership after the effective date of the Civil Code) without the consent, express or implied, of the wife¹ (Art. 166, Civil Code; Bautista vs. Lovina, 98 Phil. 1006, 1956); otherwise, said the Supreme Court in Garcia vs. Court of Appeals (130 SCRA 433, 1984), reiterating Tolentino v. Cardenas (123 Phil. 517, 1966), the disposition would be void. I share the view of my colleagues that such a contract, absent the wifes consent should be considered merely voidable consistently with Article 173² of the Civil Code under which provision, the wife could, during the marriage and within 10 years from the questioned transaction, seek its annulment (Felipe v. Heirs of Maximo Aldon, 120 SCRA 628 [1983]; Reyes v. De Leon, 20 SCRA 369 [1967]; see Roxas vs. CA, 198 SCRA 541, 1991 which applied Art. 173 to a lease contract). Failing to do so, she or her heirs, after the dissolution of the marriage, could demand the value of the property alienated (Art. 173, Civil Code). It might not be amiss to say that an unauthorized sale by the husband of conjugal real property, not being the administrator thereof, or of the exclusive parapherna of the wife, not having obtained her prior consent thereto, could be void under the provisions of Article 1874³ of the Civil Code.

A sale or encumbrance of conjugal (or community) property concluded after the effectivity of the Family Code is governed by an entirely different rule that now treats such a disposition to be void if done without the conjoint consent of the spouses or, in case of a spouses inability, the authority of the court (see Art. 124,⁴ Family Code). The declaration that the disposition by just one of the spouses is void settles the apparent conflict in some of the rulings during the regime of the 1950 Civil Code, in construing the provisions of said code found in Articles 161, 162, 166, 171 and 173, in relation to Articles 1390, 7403 and 1874, thereof.

The Family Code has also abandoned the 1950 Civil Code concept of having the husband, absent a contrary statement in a marriage settlement or in a public instrument executed by the husband or an order of a court (Arts. 168, 190 and 196, Civil Code), as the statutory administrator of the conjugal partnership of gains (Art. 165, Civil Code) that permitted suits to bind the conjugal partnership even where the wife was not named as a party defendant along with the husband (Stosa, Inc., vs. Court of Appeals, 182 SCRA 862). Article 124 of the Family Code, like the rule established in the system of absolute community of property (see Arts. 96-98, Family Code), instead confers the administration and enjoyment⁵ of the conjugal property on the spouses jointly. The marriage settlement, however, may provide for the administration of the property to by one of the spouses, the provisions of the Family Code on conjugal partnership of gain being merely suppletory thereto. In case of disagreement in the joint administration and enjoyment of the partnership property, the husbands decision shall prevail but the wife may avail herself of the proper remedy in court within five years from the date of the contract implementing the decision.

Endnotes:

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¹ If she refuses unreasonably to give such consent, the court may compel her to grant the same. The consent of the wife would not be required if she has been declared a non compos mentis or a spendthrift or is under civil interdiction or confined in a leprosarium (Art. 166, Civil Code), or if the conveyance is for the purpose of discharging any of the obligations of the conjugal partnership under Arts. 161 and 162, in relation to Art. 171 (see Tinitigan vs. Tinitigan, 100 SCRA 619, 1980).

² ART. 173. The wife may, during the marriage, and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband. (n)

³ ART. 1874. When a sale of a piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void. (n)

⁴ ART. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for 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 thepowers 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. (165a)

⁵ The terms administration and enjoyment do not encompass the sale or encumbrance of property per Article 124, 2nd par., supra.