Art. 40. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born
later with the conditions specified in the following article.
Art. 41. For civil purposes, the foetus is considered born if it is alive at
the time it is completely delivered from the mother’s womb. However, if the
foetus had an intra-uterine life of less than seven months, it is not deemed born
if it dies within twenty-four hours after its complete delivery from the maternal
1. For personality to be acquired one must be born
2. Once birth occurs, personality for favorable purposes retroacts to the moment of
To be born means to be alive after the fetus is completely separated from the
mother’s womb by cutting off the umbilical cord.
General Rule: To be born, it is enough that the fetus is alive when the umbilical
cord is cut
Exception: If the intra-uterine life is less than 7 months, it must live for at least 24
hours, before it is considered born (There is no distinction as to how the child dies –
whether natural, accidental, etc.)
According to Professor Balane, modern medicine cannot as of yet determine if the
intra-uterine life is 7 months or less in terms of number of days. Modern medicine
cannot determine the exact time when fertilization took place. Modern medicine
estimates the fetus age in weeks.
An example of a case where upon birth occurs personality retroacts to the moment of
conception is in case of succession since it is favorable to the child. On the other
hand, if the purpose is for paying taxes, personality does not retroact since it is
unfavorable to the child.
In Geluz vs. CA, the SC said that the father could not file the action for damages.
The fetus never acquired personality because it was never born – it was not alive at
the time it was delivered from the mother’s womb. Since the fetus did not acquire
any personality, it acquired no rights which could be transmitted to the father. Thus,
the father could not sue in a representative capacity. The father could have sued in
his personal capacity had the father suffered anguish which he did not.
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased is
determined by law, by contract and by will.
This article deals with the extinguishment of civil personality
Death is not defined in the Civil Code. Not even doctors know precisely when death
occurs. There are many theories.
The fact of death is important because it affects civil personality and legal relations.
The main effect of death is readily seen in succession. Death is also relevant to labor
law and insurance.
Art. 43. If there is a doubt, as between two or more persons who are
called to succeed each other, as to which of them died first, whoever alleges the
death of one prior to the other, shall prove the same; in the absence of proof, it
is presumed that they died at the same time and there shall be no transmission
of rights from one to the other.
RULE 131, RULES OF COURT
Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
(jj) That except for purposes of succession, when two persons perish in the same
calamity, such as wreck, battle, or conflagration, and it is not shown who died first,
and there are no particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from the strength and age
of the sexes, according to the following rules:
1. If both were under the age of fifteen years, the older is deemed to have survived;
2. If both were above the age of sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have
4. If both be over fifteen and under sixty, and the sex be different, the male is
deemed to have survived; if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter
is deemed to have survived.
This is a presumption regarding simultaneous death and not a rule on survivorship.
On the other hand, the Rules provide for a presumption of survivorship based on
The Rules of Court shall apply where:
1. The issue does not involve succession but something else (i.e., insurance,
suspensive conditions); and
2. The persons perish in the same calamity
Article 43 shall apply where:
1. The case involves succession; and
2. The persons do not perish in the same calamity.
If the conditions in the Rules of Court or Article 43 do not concur, do not apply either.
Problem: What if succession is involved and the persons perish in the same
Most commentators say Article 43 will prevail. This is the only case of conflict
between the Rules of Court and Article 43.
In Joaquin vs. Navarro, Article 43 was not applied. There was no need to apply the
presumption in Article 43 since there was evidence to show who died first.