persons - notes.pdf

Persons. Art. 1-51 1

Republic Act No. 386 An Act to Ordain and Institute the Civil Code of the Philippines

PRELIMINARY TITLE Chapter 1 Effect and Application of Laws Art. 1. This Act shall be known as the Civil Code of the Philippines. Civil Code, defined A civil code has been defined as a collection of laws which regulate the private relations of the members of civil society, determining their respective rights and obligations, with reference to persons, things, and civil acts. Civil Code vs Civil Law While most of our civil laws are found in the Civil Code, still the Civil Code is not the only place where we can find our civil laws. A civil code is a compilation of existing civil laws, scientifically arranged into books, titles, chapters, and sub-heads and promulgated by legislative authority. The Civil Code is not the only repository of our civil laws. We have many civil laws like the Child and Youth Welfare Code, the Family Code, the Domestic Adoption Act of 1998, Inter-Country Adoption Law which are not found in the Civil Code. The Civil Law is wider in concept than the Civil Code. The Civil Code is part of the Civil Law, but not all civil laws are part of the Civil Code. Civil law is the mass of precepts that determine and regulate the relations that exist between members of a society for the protection of private interests. It is the branch of the law that generally treats of the personal and family relations of an individual, his property and successional rights, and the effects of his obligation and contracts. Important Numbers August 30, 1950 the Code took effect 2,270 NCC is composed of this many articles 43% - of the 2270 articles are new provisions [Note] In the case of Lara vs Del Rosario, the Supreme Court made an obiter dictum that the Civil Code took effect on August 30, 1950. This date is exactly one year after the Official Gazette was released for circulation the Code on August 30, 1949. The Code however was published in the June 1949 issue of the Official Gazette and since the law fixed that the date of issue of the Official Gazette, it is conclusively presumed to be published on the date indicated therein as the date of issue. Paras submits that while it is no doubt desirable that the date of issue should be the same as the date of circulation, still no amount of judicial legislation can or should outweigh the express provision of the Revised Administrative Code. Dura lex sed lex. Brief History

Prior to the present Civil Code, our civil law was premised principally on the old Civil Code, or the Civil Code of 1889 which was patterned after the Code Napoleon.

The old Civil Code was largely based on the following: common law of castilla, opinions of jurisconsults on spanish civil laws and foreign laws such as the French Civil Code (Napoleonic Code)

Prior to the 1889 Civil Code of Span, our civil law was found in the Recopilacion de las Leyes de las Indias with the following as supplemental laws: (1) the latest Spanish laws enacted for the colonies; (2) La Novisima Recopilacion; (3) La Nueva Recopilacion; (4) the Royal Ordinances of Castille; (5) Leyes de Toro (Laws of Toro); and the (6) Siete Partidas.

Code Commission The Code Commission was created by Executive Order No. 48 by President Manuel Roxas to meet the need for immediate revision of all existing substantive laws of the Philippines and of codifying them in conformity with the customs, traditions and idiosyncracies of the Filipino people and with modern trends in legislation and the progressive principles of law. Four Original Members

1. Dean Jorge Bocobo chairman 2. Judge Guillermo Guevara 3. Dean Pedro Ylagan 4. Dean Francisco Capistrano

Other members

1. Arturo M. Tolentino but he resigned after he was elected Congressman; 2. Dr. Carmelino Alvendia, substituted Tolentino. He later became Associate Justice of the CA.

Sources of the New Civil Code

1. Spanish Civil Code of 1889 2. Foreign laws such as the civil codes of Argentina, England, France, Germany, Italy, Mexico, etc. 3. Foreign judicial decisions, comments and treatises 4. Doctrinal decision of the Philippine Supreme Court


5. Philippine Laws such as the Marriage Law, Divorce Law and the Rules of Court 6. 1935 Constitution of the Philippines 7. Report of the Code Commission 8. Filipino customs and traditions

Civil Code Divided into Four Books 1. Book I Persons 2. Book II Property, Ownership and its Modifications 3. Book III Different Modes of Acquiring Ownership 4. Book IV Obligations and Contracts

Language The New Civil Code was drafted and approved in the English language. In interpreting its provisions, the English text shall prevail over any translation, including any Spanish translation. Need for a Preliminary Title The preliminary title sets for the general principles of the Civil Code. Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, or in a newspaper of general circulation, unless it is otherwise provided. This Code shall take effect one year after such publication. (As amended by Executive Order No. 200 dated 18 June 1987) Scope of the Article on Effectivity of Laws This Article provides for the effectivity of two kinds of law, namely:

a. An ordinary law, which includes: 1. Statutes 2. Executive Orders 3. Administrative Rules 4. Certain Circulars [Note] If it has the force and effect of law or its purpose is to enforce or implement existing law pursuant to a valid delegation, then it should be published. The fact that the circular is PUNITIVE in character is the principal reason why publication should be made. Punitive means that it imposes a certain penalty or sanction. No publication is required of letters of instructions merely internal in nature, that is, regulating only the personnel of the administrative agency. (See Tanada vs Tuvera)

b. The Civil Code Publication through newspaper now allowed Under the new amendment, publication may now be made through newspapers of general circulation. The official gazette is not an adequate medium in the publication of laws, executive orders, circulars and notices in a country of more than 7,100 islands. Newspaper of General Circulation A newspaper is considered of general circulation if:

its circulation is made within the courts jurisdiction; published at regular intervals for the dissemination of local news and general information; with bona fide subscription list of paying subscribers; and if it is not devoted to the interest or published for the entertainment of a particular class, profession, trade, calling, race

or religious denomination. (See Basa vs Mercado) When do laws become effective? The effectivity of a law will depend on whether or not it has provided a specific date for its effectivity. If there is no date specified for its effectivity, the law becomes effective after fifteen days following the completion of its publication in the Official Gazette or newspaper of general circulation. This means:

Law has no date of effectivity = Will be effective 15 days after the completion of its publication. Ex. Published on August 1, 2010, a law will take effect on August 16, 2010

Law has date of effectivity (i.e. after one year, or 10 days)

= Will be effective only upon the lapse of said period following its complete publication and not before.


Ex. Published on August 1, 2010, will take effect one year after publication so it will take effect on August 1, 2011. Published on August 1, 2010, will take effect 10 days after publication so it will take effect on August 11, 2010.

Law provides that it is effective immediately

= Will be effective upon its publication and not immediately after signing by the President. Ex. President signs law effective immediately on July 30, 2010. The law is published on August 1, 2010. It took effect on August 1, 2010 and not on July 30, 2010.

Publication must be complete Unless the publication of the law is full or complete, there is no publication to be considered at all since its purpose is to inform the public of the full contents of the law. The mere mention of the number of the law, its title, the supposed date of its effectivity and its whereabouts is not even substantial compliance. Cases Tanada vs Tavera Basa Pesigan Que Po Lay Art. 3. Ignorance of the law excuses no one from compliance therewith. Ignorance, defined Ignorance means want or absence of knowledge. It is the state of being unaware or uninformed of something or act under consideration. Ignorance of law vs Ignorance of fact Ignorance of law is want of knowledge or acquaintance with the laws of the land insofar as they apply to the act, relation, duty or matter under consideration. Ignorance of fact is want of knowledge of some fact or facts constituting or relating to the subject matter in hand. It excuses or is a ground for relief. Ignorance of the law excuses no one from compliance thereof. Ignorantia juris non excusat. But ignorance of fact may excuse a party from the legal consequences of his conduct. Ignorantis facti excusat. Rationale It cannot be disputed that in reality, no person can be fully aware of the existence of all the laws. Not even lawyers could be fully knowledgeable of all the laws. Yet, all persons are conclusively presumed to know the laws as long as the laws had been duly promulgated. The rule is intended to prevent evasion of the law for to remove the said principle, violators of rights or criminals will have their feast in the midst of their violations and crimes simply by claiming or feigning ignorance of the law. Justice will be easily frustrated if parties could successfully plead ignorance of the law and escape the legal consequences of their acts or be excused from the nonfullfilment of their obligations. Art. 3 is a legal consequence Art 3 is a necessary consequence of the mandatory provision that all laws must be published. Without such notice and publication, there will be no basis for the application of the maxim ignorantia juris non excusat. It would be the height of injustice to punish or otherwise burden a citizen for a transgression of a law of which he had no notice whatsoever, not even a constructive one. (Tanada vs Tuvera) The rule may be relaxed when

When there is a mistake on a doubtful question of law, or on the construction or application of law, this is analogous to a mistake of fact. When even the highest courts are sometimes divided upon difficult legal questions, and when one-half of the lawyers in all controversies on a legal question are wrong, why should a layman be held accountable for his honest mistake on a doubtful legal issue. (Code Commission, p. 136)

Rule should not be applied with equal force to minors who, due to their lack of intelligence, should be treated differently. (People vs. Navarro)

A lawyer should not be disbarred for having committed an honest mistake or error of law. (In re Filart)

Rule applies only to Domestic Law, not Foreign laws Ignorance of foreign laws is not a mistake of the law but a mistake of fact because foreign laws must be alleged and proved, as matters of fact for our courts do not take judicial notice of foreign laws. The existence of foreign laws must be pleaded and proved as matters of fact.


Processual Presumption, Concept A foreign law is a matter of fact which must be proven with evidence. In the absence of any contrary evidence, it is presumed to be the same as our domestic law. As such, a marriage in China celebrated before a village leader, unless there is proof that indeed in China and according to Chinese laws such marriage is valid, it will be assumed that the law on marriage of China is the same as the law on marriage of the Philippines and since our laws do not recognize a village leader as one who has authority to solemnize marriage, then the marriage is void. (Yiu vs Vivo) Cases Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. Prospectivity, the General Rule The general rule on the effectivity of laws is that laws operate prospectively. Laws look at the future. Lex prospicit, non respicit. If laws were retroactive, grave injuries would occur for these laws would punish individuals for violations of law not yet enacted. While ignorance of the law does not serve as an excuse, such ignorance refers only to laws that have already been enacted. Statutes have only a prospective operation unless the intention to give them a retrospective effect is expressly declared or is necessarily implied from the language used. If there is doubt, the doubt must be resolved against retrospectivity. Retrospectivity, Concept There is retroactivity when a law is made applicable to situations or acts already done before the passage of the said law. A retroactive law creates a new obligation, imposes a new duty or attaches a new disability in respect to a transaction already past. A Reason behind rule against retroactivity The rule against retroactivity is intended to protect vested rights. Statutes which may be exempt Subject to constitutional limitations, Congress may give retroactive effect to certain laws:

1. Remedial laws which provide for the methods of enforcing rights or obtaining redress for their violation. 2. Penal laws favorable to the accused 3. Curative laws are laws intended to correct errors or irregularities incurred in judicial or administrative proceedings. 4. Emergency laws laws intended to meet exigencies. 5. Laws creating new rights 6. Tax laws

Rule on Prospectivity applies to Judicial Decisions The rule on prospective application of laws applies to judge-made laws or judicial decisions. Judicial decisions are not laws in themselves, they are however evidences of what the law means. Cases Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. Mandatory and prohibitory laws, concept A mandatory provision in a statute is one, the omission to follow which, renders the proceedings to which it relates void while a directory provision is one the observance of which is not necessary to the validity of the proceedings. It is said that when the provision of the statute is the essence of the thing required to be done, it is mandatory; otherwise, when it relates to form and manner, and where an act is incidental, or after jurisdiction acquired, it is merely directory. A mandatory provision is one which must be observed, as distinguished from directory provision, which leaves it optional with the department or officer to which it is addressed to obey it or not. These are characterized by such directives as shall and not may. Kinds of mandatory legislation

a. Positive when something must be done b. Negative or Prohibitory when something should not be done.

Violation of Mandatory and Prohibitory laws, Effect The violation of such laws renders the act void. Instances of Mandatory Provisions

1. Art. 739 prohibiting the making of donations to certain persons;


2. Art. 749 mandating that a donation of an immovable property must be in a public instrument; 3. Art. 804 requiring that a will be in writing 4. Art. 818 prohibiting the making of a joint will by two or more persons 5. Art. 1287 declaring compensation as not proper in deposit 6. Art. 2012 disqualifying certain persons to become beneficiaries in life insurance policies.

Violation of Directory Laws, effect The violation of such law does not render the act void or illegal. Exceptions to Effect of Violation of Mandatory Law Although in general, violations of mandatory or prohibitory laws result in void acts or contracts, in some instances, the law itself authorizes their validity. Among these instances are:

1. When the law makes the act not void but merely voidable. 2. When the law makes the act valid but subjects the wrongdoer to criminal responsibility 3. When the law makes the act itself void, but recognizes some legal effects flowing thereform. 4. When the law itself makes certain acts valid although generally they would have been void.

Four Ways of Validating an Act or Contract Contrary to Mandatory Law The law may validate an act or contract which is contrary to law in either of four ways:

1. By expressly validating the contract. 2. By making the invalidity to depend on the will of the injured party, such as voidable or annullable contracts; 3. By punishing it criminally but validating the act 4. By invalidating the act but recognizing the legal effects flowing therefrom.

Cases Ramos vs Hijos dela Rama Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. Right, defined A right is a legally enforeceable claim of one person against another, that the other shall do a given act, or shall not do a given act. Right is a power, privilege, or immunity guaranteed under a constitution, statutes or decisional laws, or claimed as a result of long usage. Right distinguished from Duty A right need not be exercised, it might even be waived. A duty however must be performed, and one who does not discharge the same must necessarily be prepared to face the consequence of his dereliction or omission. General Classifications of Rights As to clarity,

1. Perfect when the scope is clear, settled and determinate. 2. Imperfect when the scope is vague and unfixed. As to passive subject of the right, 1. In personam one which imposes an obligation on a definite person. 2. In rem one which imposes an obligation on persons generally or in general, i.e. either on all the world or on all the

world except certain determinate persons.

Rights as Classified Under the Constitution 1. Natural rights are those which grow out of the nature of man and depend upon personality, as distinguished from

such as are created by law and depend upon civilized society; or they are those which are plainly assured by natural law

2. Civil rights are such as belong to every citizen of the state or country and are not connected with the organization or administration of government. They include the rights of property, marriage, equal protection of the laws, freedom of contract, etc. It is basically the rights appertaining to a person by virtue of his citizenship in a state or community.

3. Political rights the power to participate, directly or indirectly, in the establishment or administration of government, such as the right of citizenship, that of suffrage, the right to hold public office, etc.

Waiver, meaning Waiver is the intentional or voluntary relinquishment of a known right. It can be express or implied. Waivers are not presumed but must be clearly and convincingly shown, either by express stipulation or acts admitting no other explanation. Coverage of waiver


The principle of waiver is generally applicable to all rights and privileges to which a person is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution, provided such rights and privileges rest in the individual and are intended for his sole benefit. Thus a person may waive:

Rights guaranteed by the constitution Consent to action which would be invalid if taken against his will Rights granted by executive orders of a general character Fundamental rights like the right to counsel, the right to remain silent, the statutory right to preliminary investigation,

right to bail as well as ordinary private rights Unwaivable Rights These are rights which a person may not waive, and any attempt at waiver is void and illegal. Instances of unwaivable rights are the right to live and right to future support. Waiver of waivable rights Waiver of waivable rights, the waiver will be void if:

1. The waiver is contrary to law, public order, public policy, morals or good customs. 2. The waiver is prejudicial to a third person with a right recognized by law.

Requirements for a Valid Waiver

1. The waiving party must actually have the right he is renouncing. (One cannot waive what he does not have, possessed or owned at the time of the waiver.)

2. He must have the full capacity to make the waiver. (If incapacitated, the waiver is defective for lack of free consent). 3. The waiver must be clear and unequivocal. (As a waiver is deprivation of right, it must not be favored in case of

doubt). 4. The waiver must not be contrary to law, public order, public policy, morals or good customs or prejudicial to a third

person with a right recognized by law. 5. When formalities are required as in the cases of an express condonation of a debt [mandating the formalities of a

donation] the formalities must be complied with. (Formalities are requirements for the validity of the act.

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom, or practice to the contrary. When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. Sources of Law In general, the sources of law are given in this Article, and in the order of preference, they are: the Constitution, the laws (or presidential decrees), administrative or executive acts, orders, and regulations. How laws lose their effectivity No human positive law is perpetually permanent. Laws are subject to repeal, self-cancelation due to the lapse of their period of effectivity or declaration of nullity due to unconstitutionality. Kinds of repeal

1. Express when the repealing law provides for a provision or a repealing clause explicitly stating that a particular existing law or part of a law is thereby repealed.

2. Implied when there is no repealing clause in the repealing law, but the prior law and the subsequent law could not reconcile being substantially inconsistent with one another.

[Note] If both statutes can reasonably stand together, there is no repeal. Implied repeal is not looked upon with favor because it rests only on presumption that there is an intention to repeal.

Rules in Repeal of Law 1. If two laws could stand together, there is no repeal. If they could not, there is an implied repeal. 2. If both laws are of the same category and they cover the same subject matter, that which is later in point of time

prevails over the prior one. This is because the later law manifests the legislators latest intention on the subject matter.

3. If between a general and special: a. If the general law was enacted prior to the special law, the special law is considered the exception to the

general law. The general law remains a good law, and therefore there is no repeal except insofar as the exception or special law is concerned.

b. If the general law was enacted after the special law, the special law remains unless 1. there is an express declaration to the contrary. 2. There is a clear, necessary and unreconcilable conflict.


3. The subsequent general law covers the whole subject and is clearly intended to replace the special law on the matter.

Laws Conditions Rule 1. Old Law + New Law a. if can stand together

b. if cant stand together No repeal. Implied repeal

2. Old Law + New Law Both of the same category and cover the same subject, i.e. special law + special law or general law + general law.

Old law is repealed, new law prevails.

3. General Law vs Special Law a. general law enacted prior to special law b. special law is enacted prior to general law

Special law is the exception to the general law. General law remains valid except for the provisions repealed by special law. Special law remain valid unless:

a. there was an express repeal. b. There is clear, unreconcilable

difference. c. The subsequent general law

covers the whole subject. Revival of a Repealed Law, Conditions A repealed law, may or may not be revived, when the repealing law which repealed it is itself repealed. The revival however depends on the manner of how the first law was repealed:

a. if the first law is repealed by implication by the second law, and the second law is itself repealed by the third law, the first law is revived unless otherwise provided in the third law.

b. If the first law is repealed expressly by the second law, and the second law is repealed by third law, the first law is not revived, unless expressly so provided.

General Rule: In case of implied repeal, there is revival and in case of express repeal, there is no revival. Exception: If the contrary is provided.

Self-Lapsing Law There are laws which provide for their limited application. Once the period for their effectivity lapses, the self-lapsing laws automatically become ineffective without any need of further legislative action. Examples: (1) House Rental Law, (2) Emergency Powers granted to the President, (3) Annual appropriations act; and (4) Import Control Law. Supremacy of the Constitution Over All Laws The Constitution is the highest law of the land to which all other laws must abide, otherwise, they will be void for being unconstitutional. Some grounds for declaring a law unconstitutional

(a) the enactment of the law may not be within the legislative powers of the lawmaking body. (b) Arbitrary methods may have been established. (c) Purpose or effect violates the Constitution or its basic principles

How to attack the Constitutionality of a Law Until a law has been declared void by a competent authority, it remains valid and effective. The Supreme Court is empowered by the Constitution to declare the unconstitutionality of a law and the vote required is majority of the Justices who actually took part in the deliberations on the issues in the case. The constitutionality of a law may not be attacked collaterally and shall be deemed valid unless declared null and void by competent authority. Effect of an Unconstitutional Law Although an unconstitutional law confers no right, creates no office, affords no protection and justifies no acts performed under it, there are instances when the operation and effects of the declaration of its unconstitutionality may be relaxed or qualified because of the actual existence of the law prior to such declaration is an operative fact. Operative Fact Doctrine This is when a legislative or executive act, prior to its being declared as unconstitutional by the courts, is valid and must be complied with. (Chavez vs NHA) Cases In re Cunanan


Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Judicial decisions are not law, but have the force and effect of laws Judicial decisions are not law. Although not law, the decisions of the Supreme Court applying or interpreting the laws or the Constitution form part of the legal system in the country. They have the force and effect of laws as they assume the same authority as the statutes themselves because they, to the extent that they are applicable, become the criteria for the actions of the governed and those bound by law. Legis interpretatio legis vim obtinet (the interpretation placed upon the written law by a competent court has the force of law). Jurisprudence These are doctrines formulated by the decisions of the Supreme Court. These doctrines amplify and supplement the written law. [Note] Only judicial decisions of the Supreme Court are referred to in Art. 8. This is because judicial decisions of the Supreme Court are authoritative and precedent-setting while those of the inferior courts and the Court of Appeals are merely persuasive. It is the duty of the judges to apply the law as interpreted by the Supreme Court. However, decisions of the Court of Appeals which cover points of law still undecided in the Philippines may still serve as judicial guides to the lower courts. They shall attain the status of doctrines if the Supreme Court should find the same to merits. Decisions of lower courts (RTC, MTCS) no matter how sound and wise do not become part of jurisprudence. They cannot be cited as authorities. Constitutional Requirements for Validity of Decisions Art. VIII, Sec 14 of the 1987 Constitution provides that No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based. Stare Decisis, Doctrine The doctrine of stare decisis (et non queita movere) refers to the principle of adherence to precedents for reasons of stability in the law. The doctrine requires lower courts to follow the rules established in prevailing decisions of the Supreme Court. The doctrine is based on the principle that once a question of law has been decided in one case, any other case, involving the same issues, must be resolved in accordance with the preceding decisions. Stability is thus achieved in the process of decision-making and cases shall not be decided based on the caprices and moods of judges. Limitation to the Doctrine of Stare Decisis Although the doctrine of stare decisis is a sound doctrine, it does not mean blind adherence to precedents. There are certain exceptions when it must be softened. Thus, if a rule which has been followed as precedent is found contrary to law, it must be abandoned. The law is higher than a precedent. The precedent may also be abandoned if it has ceased to be beneficial and useful to society in the light of the changing conditions. Citation of Abandoned Decisions, Unethical It is unethical for lawyers to cite as authorities decisions which have already been overruled and no longer controlling. (Canon 22, Code of Professional Ethics) Obiter Dictum, concept Is an opinion expressed by a court upon some question of law which is not necessary to the decision of the case before it. It is a remark made or opinion expressed by a judge that is incidentally or collaterally and not directly upon the question before him. When a matter has been clearly questioned or raised as an issue and the same was touched in the decision when a conclusion was presumed, the adjudication cannot be considered an obiter dictum but a factual finding. (See Villanueva vs CA) How judicial decisions may be abrograted

(a) by contrary ruling of the Supreme Court itself. (b) By corrective legislative acts of congress, although said laws cannot adversely affect those favored prior to Supreme

Court decisions.

Opinions of Secretary of Justice or Other Executive Officials The executive interpretation of legislative acts, although not law, carries great weight. Cases Floresca vs Philex Mining Judicial decisions of the Supreme Court assume the same authority as the statute itself. Art. 8 of the Civil Code tells us that judicial decisions that apply or interpret the laws or the Constitution form part of our legal system. These decisions, although in themselves are not laws, are evidence of what the law means. The application or interpretation placed by the Court upon a law is part of the law as of the date of its enactment since the Courts application or interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect.


Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. Duty of a Judge if the Law is Silent A judge must give a decision, whether he knows what law to apply or not. Thus, even if a judge does not know the rules of cockfighting, he must still decide the case. (Chua Jan vs Bernas) Filling Gaps in the Law Authorized, Limitations When situations arise where cases are brought before the court and there is no law exactly applicable to them, or it is obscure or vague and insufficient, the judge is nevertheless enjoined to render a decision. He shall not abstain or decline in adjudging the case. (Chua Jan vs Bernas). Under Art. 9, the judge is somehow forced to legislate in a loose sense or to fill the existing vacuum in obscure or insufficient laws. Guidelines in Rendering Decision under Art. 9 Unlike the Old Code, Art. 9 is silent as to how decisions under Art. 9 should be rendered. The provision in the old code was not re-produced to obviously give more freedom and elbow room to find other factors where to base and anchor his decision. The judge may apply any rule he desires as long as the rule chosen is in harmony with general interest, order, morals and public policy. Aside from customs and general principles of law, the judge may use:

(1) decisions of foreign and local courts on similar cases (2) opinions of highly qualified writers and professors (3) rules of statutory construction (4) principles laid down in analogous cases. * the provision of another law governing another matter may be applied where the underlying principle or reason is the same. Ubi cadem ratio ibi eadem disposito. Where there is the same reason, there is the same law.

Applicability of Art. 9 Article 9 is not applicable to criminal cases because of the basic principle of nullum crimen nulla poena sine lege which means that when there is no law punishing the act, there is no crime. The dismissal of the case is mandatory because conviction is inconceivable. [Note] Paras submits that in a way, yes. The act of the judge in dismissing the case is equivalent to a judicial acquittal. Art. 10. In case of doubt in the interpretation or application of laws, it is to be presumed that the lawmaking body intended right and justice to prevail. Dura Lex Sed Lex The law may be harsh but it is still the law. Hence, the first duty of the judge is to apply the law whether it be wise or not, whether it be just or unjust provided that the law is clear, and there is no doubt. Courts are referred to as courts of law, not courts of justice. In case of Doubt In case of doubt, the judge should presume that the lawmaking body intended right and justice to prevail. It has been said that we should interpret not by the letter that killeth, but by the spirit that giveth life. Equity is justice sweetened with mercy. Reason behind the Article The Code Commission found it necessary to embody Art. 10 in the Code so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law. Some rules of statutory construction

1. When a law has been clearly worded, there is no room for interpretation. There is only room for application. 2. A law should be interpreted not by the letter that killeth but by the spirit that giveth life. 3. When the reason for the law ceases, the law itself ceases. Cessante ratione cessat ipsa lex. 4. Criminal laws and tax laws should be interpreted strictly against the state. 5. Equity follows the law.

Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced. Art. 12. Customs must be proved as a fact, according to the rules of evidence. Customs, defined A custom is a rule of human action established by repeated acts, and uniformly observed or practiced as a rule of society. Custom vs Usage Usage is a repetition of acts, and differs from custom in that the latter is the law or general rule which arises from such repetition. While there may be usage without custom, there cannot be a custom without a usage accompanying or preceding it.


Custom vs Law Ordinarily, a law is written, consciously made and enacted by Congress; a custom is unwritten, spontaneous and comes from Society. Moreover, a law is superior to a custom as a source of right. While the courts take cognizance of local laws, there can be no judicial notice of customs, even if local. Customs cannot Supplant Laws Court is duty-bound to resolve the instant case applying the law and is unable to supplant governing laws with customs, no matter how widely observed it is. Requisites before the Courts can Consider Customs

(1) A custom must be proved as a fact, according to the rules of evidence; otherwise, the custom cannot be considered as a source of right.

(2) Custom must not be contrary to law (contra legem), public order, or public policy. (3) There must be a number of repeated acts. (4) The repeated acts must be uniformly practice/performed by the great mass of the social group (5) There must be juridical intention to make it a rule of social conduct or the community accepts it as a proper way of

acting such that it is considered obligatory upon all (6) There must be sufficient lapse of time or the practice has been going on for a long period of time.

Kinds of Customs

(1) General Customs prevailing throughout a country and become a law of that country, and their existence is to be determined by the court.

(2) Local customs are such as prevailing only in some particular district or locality (3) Particular customs are nearly the same, being such as affects only the inhabitants of some particular district.

According to Paras: (1) General custom custom of a country (2) Custom propter legem a custom in accordance with law (3) Custom contra legem a custom against the law (4) Custom extra legem which may constitute sources of supplementary law, in default of specific legislation on the

matter. No judicial notice of customs, exception Custom must be proved as fact, and to do that, it must be alleged in the pleadings. Its existence must be proved by evidence, either through testimony or by documents recognizing its existence and its observance for a long period of time. A court may take exception to this rule when there is already a decision rendered by the same court recognizing the custom, specially if the decision had already been affirmed on appeal and the decision is already final and executory. Judicial notice may also be taken of a custom which is of public knowledge. General Principles of Law, Concept According to Valverde and Sanchez Roman, the general principles of law consists of the universal juridical standards dictated by correct reason or those principles of justice beyond the variability and uncertainty of facts, those high standards which serve as a foundation to positive law, those rules accepted by jurisconsults which constitute real axioms for all those who intervene in juridical life and which form a law superior to what is enacted. According to Manresa, the general principles of law are the principles which serve as basis for positive law in each country. In the Philippines, the law is necessarily supreme to the general principles of law. If there is a conflict between the two, the law prevails. The general principles of law which are unwritten rules anchored on mans sense of justice and equity cannot stand superior to the written law which is equally anchored on the legislators sense of justice and equity. On the first, there is the great possibility of doubt; on the second, there is little space for doubt. Art. 13. When the law speaks of years, months, days and nights, it shall be understood that years are three hundred sixty-five days each, months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded and the last day included. Examples of How Periods are Computed

(a) 10 months = 300 days (b) 1 year = 365 days (c) March = 31 days (d) One week = seven successive days

[Note] Any year is a leap year if it is exactly divisible by four. In the case of a century year, the same must be divisible by four hundred.


Month contemplated, legal month The Civil Code provision cannot be construed to refer to the calendar month, but to the legal month of thirty days created by law. Calendar month vs Legal Month The general rule is that when months are not designated by name, a month is understood to be only 30 days. Exclude the First and Include the Last Day Rule This rule is based on American legislation, the reason behind is that if the first day is not excluded, then that first day would be less than 24 hours and would run in conflict with the law which provides that a day has twenty-four hours. [Note] The article does not contain the exception referring to Sundays and legal holidays mentioned in the Rules of Court. The Rules of Court however, applies only to a period of time prescribed or allowed by the Rules of Court, by order of a court or any applicable statute, it seems logical that when the act and the period are contractual, not required by law, court order, or rule of court, the exception referring to Sundays and holidays does not apply, and the act must be done on the last day, even if the latter should be a Sunday or a holiday. Computation of Period when Last Day Falls on a Sunday or Holiday As to whether the Sunday or holiday shall be included in the computation will depend on the nature of the act to be performed or done:

1. If the act to be performed within the period is prescribed or allowed (a) by the Rules of Court, (b) by an order of the Court, (c) by any other applicable statute, the Sunday or holiday will not be considered as the last day. The last day will automatically be the next working day. The period is intended. (Gonzaga vs Ce David)

2. If the act to be performed within the period arises from a contractual relationship, the act will become due nothwithstanding the fact that the last day falls on a Sunday or holiday. The period is not extended. This is because the contract is the law between the parties. (Art. 1159, NCC)

Rule of Next Working Day does not Apply to Public Sales/ Foreclosures of Mortgages not to Trial Dates Fixed by Court If the date fixed by the sheriff or notary public for the auction sale of properties is declared a holiday, the sale is not automatically moved to the next working day. There is a need for the republication of the notice of public auction sale or foreclosure. If the date for the trial of a case has been declared a holiday, the trial is not automatically transferred to the next working day. The next working day rule applies only to periods fixed by law or by the Rules of court. Meaning of Day Applied to the Filing of Pleadings If the last day for submitting a pleading is today, and at 11:40 pm (after office hours) today it is filed, the Supreme Court has held that it is properly filed on time because a day consists of 24 hours. When is Mailed Petition Considered Filed/ Rule on the Filing of Pleadings through the Post Office The petition is considered filed from the time of mailing. This is because the practice in our courts is to consider the mail as an agent of the government, so that the date of mailing has always been considered as the date of filing. Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. Rationale Generally, our civil laws do not apply to aliens who are governed by their national law. However, our penal laws equally apply to aliens who live or sojourn in the Philippines based on the principle that during their stay, they owe allegiance to the country though temporary in nature. This Article underlines the principle of territoriality under which any offense committed by anyone within the territory of the country is an offense against the State. And the sovereign State has the power to prosecute and punish the offender, be he a national or a foreigner. Exceptions The law provides two exceptions:

1. Those, who under principles of public international law enjoy diplomatic immunities from suit such as heads of states, foreign ambassadors or diplomats, provided they do not travel incognito.

2. Those expressly excluded from our jurisdiction due to treaty stipulations such as American citizens mentioned in the Philippines-United States Military Bases Agreement

[Note] A consul is not entitled to the privileges and immunities of an ambassador. He is subject to the rules and regulations of the country to which he is accredited. Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Family Rights and Duties


These refer to rights and duties provided in the Family Code and other special laws relating to family law. Thus matters relating to marriage, its annulment or nullification, its consequences, legal separation, property relations, support, adoption, filiation, recognition, succession, emancipation, parental authority are governed exclusively by Philippine law, wherever the citizen may be. [Note] A former Filipino is no longer bound by Philippine personal laws after he acquires another states citizenship. Status, defined Status is a term used to designate the circumstances affecting the legal situation (sum total of capacities and incapacities) of a person in view of his age, nation and his family membership. Condition, defined It is a mode or state of being; state or situation; essential quality, status or rank. Legal Capacity The legal power to enter into binding obligations or to enjoy the privileges of legal status.

Testamentary capacity is the capacity to make a legally effective will Contractual capacity is the capacity to make legally binding contracts Marital capacity is the capacity to enter into a valid marriage

Nationality Rule/Citizenship Theory The national law of the person is applied in matters involving personal relations. Domiciliary/Territoriality Principle or Theory The law of the domicile is applied on matters involving personal relations, followed in the US and Great Britain. Capacity to Enter Into Ordinary Contract The capacity to enter into ordinary contract is governed by the national law of the person, and not by the law of the place where the contract was entered into. [Note] Paras submits that the Supreme Court erroneously held that Frank, in Govt v Frank had legal capacity to enter into contract because of the law of the place where the contract was entered into. It should have been valid because the Philippines follows the nationality principle. It is immaterial in this case as Franks national law and the law of the place where the contract was made is the same. It would have been a different matter altogether if the contract had been entered into by Frank in the Philippines for under the lex loci celebrationis rule, the same would have been invalid. However, Pineda submits that the pertinent article in this case is Art. 17. Capacity under Code of Commerce Art. 15 of the Code of Commerce says that foreigners and companies created abroad may engage in commerce in the Philippines subject to the laws of their country with respect to their capacity to enter to contract. Cases Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of where said property may be found. Lex Situs or Lex Rei Sitae, Doctrine This is the principle which provides that property shall be governed by the law of the place where it is situated. It generally applies to lands and immovables in transactions like sale, lease, barter mortgage or any other form of alienation of property. Mobilia Sequuntur Personam This means that movables follow the owner. This rule has been changed to lex situs or lex rei sitae which means that property is governed by the law of the place where it is situated. Applications of the Doctrine of Lex Rei Sitae Shares of stocks of a foreigner, even if personal property, can be taxed in the Philippines so long as the property is located in this country. Bank deposits in the Philippines even if belonging to a foreigner may be the subject of attachment proceedings. Taxes may be imposed on dividends from shares in a gas corporation situated in the Philippines even if the stockholders do not reside here. Exceptions to the Lex Situs or Lex Rei Sitae Rule


The second paragraph of Art. 16 provides the exceptions to the lex situs rule. They refer to incidents of succession whether testamentary or intestate. These incidents are governed by the national law of the decdent, irrespective of the nature of the property involved and regardless of the country wherein said property may be found:

1. Order of Succession question of preference of succession. Ex. The nearest heirs exclude the farthest heirs from the succession.

2. Amount of Successional rights amount which heirs should receive from the inheritance. Ex. Legitimate and illegitimate heirs differ in entitlement.

3. Intrinsic validity of the provisions of the will refers to the effectiveness of the dispositions in the will. Ex. Validity of the preterition of an heir

4. Capacity to succeed refers to the capacity of heirs to succeed in accordance with the national law of the deceased and not with the national law of the heirs.

[Note] Without succession having taken place, there is no justification for the application of the second paragraph of Art. 16 Reason for the Application of the Lex Nationalii Rule in Case of Succession With regard to succession, there is only one will, express in testamentary and presumed in intestate succession. The oneness and universality of the inheritance cannot be divided or broken up merely because of the different countries where properties of the estate are situated. Example: In country X, even recognized illegitimate children are not allowed to inherit. A citizen of country X dies in the Philippines, with some of his parcels of land located in our country. Under our laws, recognized illegitimate children can inherit. Will Y, a recognized illegitimate child of the deceased, be entitled to inherit? Answer: No, because under the law of his fathers country, he has no right to inherit. This is so even if the lands are found in the Philippines and our laws allow illegitimate children to inherit. What should control is the national law of the deceased. Question: If a Filipino dies leaving lands in China, should the inventory of his estate required by our courts include the lands in China? Answer: Ideally yes because we have to know the total value of his estate for eventual distribution to his heirs. In fact, under Art. 16, it should be our law that should govern their disposition. This would only be ideal if the Chinese courts would respect the decisions of our courts. If they do not, our courts can hardly do anything about it since the lands are in China. The problem of possible unenforceability and ineffectiveness is precisely a defect of the second paragraph of Art. 16. As such, Art. 16(2) can apply only to properties located in the Philippines. Renvoi Doctrine Renvoi is a French term meaning referring back which arises where our law refers a case to another country for solution, but the law of that country refers it back to our country for determination. 2 Kinds of Renvoi

1. Remission or single renvoi happens when the reference is made back to the law of the forum. 2. Transmission or double renvoi happens when the reference is made to a third state.

No American Law There is no such thing as an American Law governing the validity of testamentary provisions in the US. Each State of the Union has its own laws. (Llorente vs CA) Lex Fori Rule and Processual Presumption It means the law of the forum. If the application of a foreign law is invoked, that foreign law must be proved as a fact by the rules of evidence. In the absence of proof, it is presumed to be the same as that of the Philippine law the law of the forum. This presumption is known as processual presumption. Art. 17. The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Doctrine of Lex Loci Celebrationis Under this rule, interpretation and validity of a contract are determined by the law of the place where the contract is made. Locus contractus regit actum. The formal validity of contracts, wills and other public instruments shall be determined by the law of the country where they are executed. Intrinsic Validity, not covered by this Article In determining the intrinsic validity of contracts, according to Manresa, the following rules can be followed:


(a) The law stipulated by the parties shall be applied. (b) In the absence of any stipulation and if the parties are of the same nationality, their national law shall be applied. (c) In the parties are not of the same nationalities, the place of perfection of the obligation shall govern its essence and

nature and the law of the place of performance shall govern its fulfillment; (d) If the above places are not specified and they cannot be deduced from the nature and circumstances of the obligation,

then the law of the domicile of the passive subject shall apply. Formalities for the Acquisition, Encumbering or Alienation of Property Formalities for the acquisition, encumbering and alienation of property whether real or personal shall however be governed not by the lex loci celebrationis rule but by the lex rei sitae rule. Thus: If A who is Chinese sold to B who is Filipino a parcel of land located in the Philippines and the contract was executed in Japan, which country governs the formalities of the sale? Answer: The law of the Philippines because the land is located here. Art. 16 is an exception to lex loci celebrationis. Conflict of Law, Forum Non Conveniens, Not all Cases involving Filipino citizens can be tried in the Philippines Under the rule of Forum Non Conveniens, a Philippine court may assume jurisdiction over the case if it chooses to do so provided:

(1) that the Philippine court is one to which the parties may conveniently resort to; (2) that the Philippine court is in a position to make an intelligent decision as to the law and the facts; and (3) that the Philippine court has or is likely to have power to enforce its decision.

[Note] Forum non conveniens literally translate to forum which is not convenient. The ends of justice would be best served by trial in another forum and that the controversy may be more suitably tried elsewhere. Rule on Exterritoriality/Principle of Exterritoriality Acts referred to in Art. 17, if executed before a consular or diplomatic official, shall be governed by Philippine law even though executed abroad. This is because consular or diplomatic offices found abroad are extensions of the Philippine territory. Exterritoriality vs Extraterritoriality Exterritoriality has a reference to the extension of the territory of a country in another country which extension is recognized under international law. Territoriality refers to the principle whereby all persons, whether foreigners or citizens, who commit crimes or violate penal laws shall be liable for prosecution in the territory or place of commission of the acts. Extraterritoriality is the principle recognized in criminal law where crimes committed on board vessels or aircraft of a country or other specific crimes committed abroad against said country may be taken up by the courts of that country. Cases Govt vs Frank It is not disputed that at the time and place of the making of the contract in question, the defendant had full capacity to make the same. No rule is better settled in law than that matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting a remedy, such as the bringing of suit, admissibility of evidence and statutes of limitations, depend upon the law of the place where the suit is brought. [Note] As such:

Execution, interpretation and validity of a contract = Law of the place where the contract is made (Lex Loci Celebrationis)

Matters connected with its performance = Law prevailing at the place of performance (Lex Loci Contractus)

Matters respecting a remedy, such as the bringing of a suit

= Law of the place where the suit is brought

Rules on Obligations and Contracts

Formal and Extrinsic Validity of Contract Except: alienation and encumbrance of property

= =

Lex Loci Celebrationis (Art. 17{1} Lex Situs (Art. 16[1])

Capacity of Contracting Parties

=

Lex Nationalii or National law (Art. 15) without prejudice to the case of Insular Government vs Frank where the SC adhered to the theory of lex loci celebrationis

Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.


Suppletory rule of the NCC The article does not speak of inconsistencies between the Civil Code and other laws. It speaks of deficiencies which must be supplied by the NCC. If the Code of Commerce or special laws are insufficient, the Civil Code shall be applied to supply the deficiency. Thus, the Civil Code is suppletory. In case of conflict between NCC and Code of Commerce In case of conflict with the Code of Commerce or special laws, the special law prevails over the Civil Code which is general in nature. Instances when the Code of Commerce and Special Laws merely supply the deficiency In the following instances, the Civil Code is the principal law

(a) in the law on common carriers (b) in insolvency cases.

Cases: Ramos vs Hijos de la Rama

Chapter 2 Human Relations

Human Relations, defined The term human relations refers to the rules needed to govern the inter-relationships of human beings in a society for the purpose of maintaining social order. Purpose of Chapter 2 Chapter 2 provides some basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order. Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Principle of Abuse of Rights The principle embodied in Art. 19 is what is known as the principle of abuse of rights. The term is used to refer to acts performed which are not illegal but nevertheless make the actor liable for damages, if in so acting or in the exercise of his rights, his purpose is to prejudice or injure another. Old Rule vs New Rule In the old times, civil law countries like Spain followed the well-known doctrine of he who uses a right injures no one. Thus, no person can be held liable for damages caused to another by the formers exercise of a right. The modern trend however states that even if an act is not illegal if there is an abuse of right such as when the act was done without prudence or good faith, the actor is liable for the damages occasioned thereby. The exercise of a right must be in accordance with the purpose to which it was established and must not be excessive or unduly harsh; there must be no intention to injure another. Intention of Art. 19 Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. If mere fault or negligence in ones acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. Good faith and bad faith, distinguished Good faith is an honest intention to refrain from taking undue advantage of another. It is an honest intention to abstain from taking any unconscientious advantage of another. Bad faith is the opposite of good faith. It presupposes a dishonest purpose or some moral obliquity and conscious performance of a wrong. Elements of Abuse of Right

(1) There is a legal right or duty; (2) Which is exercised in bad faith; (3) For the sole intent of injuring or prejudicing another.

[Note] While Article 19 may have been intended merely as a declaration, the cardinal law on human conduct expressed in the said Article has given rise to certain rules, e.g. that where a person exercises his rights but does so arbitrarily or unjustly or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability. Rationale behind the Principle


According to Borrel Macia, the exercise of a right ends when the right disappears, and it disappears when it is abused, especially to the prejudice of others. The mask of a right without the spirit of justice which gives it life, is repugnant to the modern concept of social law. It cannot be said that a person exercises a right when he unnecessarily prejudices another or offends morals or good customs. [Note] Rights must never be abused. The moment they are abused, they cease to be right. Examples of Abuse of Rights

(1) A party who has won a case has the legal right to a demolition of a house but for not giving the occupants sufficient time to remove their personal belongings, the occupants are entitled to damages. The demolition having been done swiftly, was carried out in a manner not consistent with justice and good faith. This constitutes abuse of rights. (Albetz Investments, Inc. vs CA)

(2) A judge who allowed the suspension of rentals without any legal ground sanctioned the enjoyment of another, of a persons property without payment of rentals, and before the former had been declared as owner thereof.

(3) There is abuse of presidential prerogative when an outgoing president issued mass midnight appointees to different government positions before the assumption into office of the new incoming President.

Acting with justice and giving another his due, manifested This is elaborated in the following articles:

(a) Art. 20 - indemnification of another due to illegal acts (b) Art. 21 indemnification due to immoral acts (c) Art. 24 unfair competition (d) Art. 22 unjust enrichment

Observance of Honesty and Good faith, manifested This is elaborated in the following articles:

(a) Art. 26 respect for the personality and dignity of others (b) Art. 25 restraint of undue extravagance (c) Art. 31 et. seq independent civil actions

Bad faith distinguished from Bad Judgment Mere bad judgment or negligence does not necessarily mean bad faith. There must be a dishonest purpose or some moral obliquity and conscious doing of wrong. Limitation on the Provisions on Human Relations The provisions on human rights are merely guides to human conduct in the absence of specific legal provisions and definite contractual provisions. Damnum Absque Injuria, Principle A person who only exercises his legal rights does no injury. Que jure suo utitur nullum damnum facit. If damages result from such exercise of legal rights, it is damnum absque injruia. When the conjuction of damage and wrong is wanting, there is no damnum absque injuria. It cannot be said that a person who unnecessarily prejudices another or offends morals or good customs is exercising a right. This principle is premised on the valid exercise of a right. Anything less or beyond such exercise will not give rise to the legal protection that the principle accords. Cases Art. 20. Any person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Coverage of Article Generally, laws provide their own sanctions by stating the responsibility of the violators thereof. However, there are cases when the law does not provide for its own sanctions. In which case, this Article provides the general sanction indemnification for damages. This article covers all situations, as well as legal wrongs not constitutive of a breach of contract. It covers torts based on malice (Art. 20) and torts based on negligence (Art. 2176). No Right Impaired, No Basis for Damages The code Commission explains that Art. 20 pervades the entire legal system, and renders it impossible now for a person who suffers damage because another has suffered some legal provision to find himself without relief. However, it someone be damaged by another, he does not necessarily have the right to be indemnified. It is essential that some right of his be impaired. Cases: Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.


Reason for Art. 21 The Code Commission is fully aware that there are countless gaps in statutes which leave many victims of moral wrongs helpless even though they have actually suffered material and moral injury. There are many injurious acts that are contrary to public policy but are not forbidden by statute which have not been foreseen by lawmakers. Art. 21 expands the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrong which is impossible for human foresight to specifically provide in the statutes. Art. 20 vs Art. 21 Article 21 provides that the act is contrary to morals, good customs or public policy while in Art. 20, the act is contrary to law. In Art. 21, the act is done willfully which may be construed as not merely voluntary but with a bad purpose while Art. 20 the act is done either willfully or negligently. Requisites for Recovery of Damages under Art. 21

(1) The act should have been willfully done (2) The act is contrary to morals, good customs or public policy.

[Note] If the loss or injury is due to the plaintiffs own inexcusable fault or negligence, he should not be allowed to recover. The plaintiff must not be at fault, otherwise, he could not recover. Rule on Breach of Promise to Marry, Exceptions General Rule: Breach of promise to marry is not actionable. Reason: If a person promised to marry another and the promise was broken, no court can compel the promissory to marry the promisee. The right to marry is a personal one and is not subject to judicial compulsion. However a breach of promise to marry may give rise to damages under certain circumstances:

(1) There is no recovery of moral damages, except when there is criminal or moral seduction. Rationale: If there is criminal or moral seduction, a grant of moral damages is justifiable under Art. 21. However, there must be deception, enticement, superior power or abuse of confidence on the part of the seducer to which the woman yielded. Thus, if the sexual intercourse was due to mutual lust of the parties who are both of legal age, no moral damages could be claimed.

(2) A person may recover actual damages. Sample Questions:

Q: If A is a teacher who resigned from her job because of Bs promise to marry her, can she recover damages for breach of promise to marry?

A: Yes, insofar as actual damages are concerned. (Garcia vs. Del Rosario) Q: If a woman gave a sum of money to the man because the latter promised to marry and he did not fulfill his promise,

can she recover the money given? A: Yes, actual damages may be recovered for advance of property or money due to promise to marry. Q: In an action based on a breach of promise to marry, what rights has the aggrieved party in cases:

(a) When there has been carnal knowledge? (b) When there has been No carnal knowledge?

A: When there has been carnal knowledge, the aggrieved party may: (1) ask the other to recognize the child, should there be one, and give support to said child. (2) Sue for moral damages, if there be criminal or moral seduction, but not if the intercourse was due to mutual

lust. (Hermosisima vs Court of Appeals) (3) Sue for actual damages, if there be any, such as in the wedding preparations.

If there has been no carnal knowledge, an action for moral and actual damages may rise under certain conditions, as

when there has been deliberate desire to inflict loss or injury or when there has been an evident abuse of a right. Thus, a man who deliberately fails to appear at the altar during the scheduled wedding simply because it was his intention to humiliate the girl no doubt inflicts irreparable injury to her honor and reputation and allows her to recover not just actual but also moral and exemplary damages. (Victorino vs Nora)

Cases Art. 22. Every person who through an act of performance by another, or any other means acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Principle Against Unjust Enrichment


Art. 22 embodies the Roman Law principle of Nemo cum alterius detrimento locupletari potest (No one shall unjustly enrich himself at the expense of another). However, enrichment with a just or legal ground is not prohibited. Legitimate enrichment is never discouraged by the law. Coverage of Art. 22 Art. 22 is applicable only if (1) someone acquires or comes into possession of something which means delivery or acquisition of things, and (2) acquisition is undue and at the expense of another, which means without any just or legal ground. Rendition of Services, Not Included If someone rendered service benefitting another, the action should not be brought in relation with Art. 22. The liability will lie on quasi-contract. (Art. 2146) Accion in Rem Verso, definition and limitations Accion in Rem Verso is action brought for the recovery of what has been paid without just cause. It can only be availed of if there is no other remedy to enforce it based on contract, quasi-contract, crime or quasi-delict. In other words, this action is only subsidiary. Accion in rem Verso vs Solutio Indebiti In rem verso, it is not necessary that the payment be made by mistake. Payment could have been made voluntarily and knowingly, but nevertheless, there would be recovery of what has been paid. In solutio indebiti, payment was made by mistake which is an essential element to maintain the action for recovery in relation with Art. 2154. Requisites of Accion in Rem Verso In order that any action under Art. 22, unjust enrichment may prosper, the following conditions must concur:

(1) the defendant has been enriched (2) the plaintiff suffered a loss (3) that the enrichment of the defendant is without just or legal ground; and (4) that the plaintiff has no other action based on contract, quasi-contract, crime or quasi-delict.

[Note] The indemnity cannot exceed the loss or enrichment, whichever is less. (Reyes and Puno, Outline of Phil. Civil Law, Vol. 1.) Property Acquired by Final Judgment, not covered A property acquired by virtue of a final judgment rendered by a court of competent jurisdiction, cannot be said to have been acquired without just or legal ground. Government is not exempt from Principle of Unjust Enrichment The government cannot enrich itself at the expense of another. Thus, if the government has already realize the revenue which is the object of the imposition of the subject stamp tax, it could no longer require the payment of the same tax for the same documents. Quasi Contracts Distinguished from Art. 22 Quasi-contracts are based on the principle that no person shall be unjustly enriched at the expense of another. Apparently, Art. 22 which is the basis for actions in accion in rem verso is different from quasi-contracts. But despite the formal presentation of the concept of quasi-contracts, there has been practically a merger of the principle of unjust enrichment and that of quasi-contracts. (Tolentino) Cases: Art. 23. Even when an act or event causing damage to anothers property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefited. Duty to Indemnify because of Benefit Received Unless there is a duty to indemnify, unjust enrichment will occur. Example Without As knowledge, a flood drives his cattle to the cultivated highland of B. As cattle are saved, but Bs crop is destroyed. True, A was not at fault but he was benefited. It is right and equitable that he should indemnify B. Art. 24. In all contractual, property or other relations, when one party is at a disadvantage on account of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap, the courts must be vigilant for his protection. Duty of the Court in rel. to Art. 24 Courts are directed to be wary and cautious, as not to neglect the extra protection needed by the disadvantaged and the handicapped. The law seeks the welfare of the incapacitated, disadvantaged and handicapped being unable to fully protect themselves. This is anchored on the doctrine of parens patriae.


Doctrine of Parens Patriae This is the inherent power of the State to provide protection of the person and property of a person non sui juris. Under that doctrine, the State has the sovereign power of guardianship over persons under disability. Thus, the State is considered the parens patriae of minors who are unable to take care of themselves fully. [Note] Non Sui Juris Or Not His Own Master refers to a person who lacks the legal capacity to act on his or her own behalf, such as in the case of infants or insane persons. Summun jus, Summun Injuria If the laws were always to be applied strictly, there would be danger that injustice might arise. The State is thus under obligation to minimize the risk to those who are weak and handicapped. Meaning of Vigilant for his Protection In case of doubt, the doubt must be resolved in favor of the underdog. Thus in labor contracts, doubts are resolved in the favor of the decent living and safety of the worker. Contract of Adhesion Contracts prepared almost entirely by one party and the other party only has to sign. Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Requisites for filing actions under Art. 25

(1) there is thoughtless extravagance in expenses (2) the extravagance is for pleasure or display (3) there is a period of acute public want or emergency (4) the case is filed in court by a governmental institution or private charitable institution

Reason for Curtailing Thoughtless Extravagance Thoughtless extravagance during emergencies may incite the passions of those who cannot afford to spend. Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) prying into the privacy of anothers residence (2) meddling with or disturbing the private life or family relations of another; (3) intriguing to cause another to be alienated from his friends; (4) vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical

defect or other personal condition. Coverage of This Article, Not Limitative This article is not limited to penalizing only such acts for it provides that other similar acts may give rise to a cause of action for damages, prevention and other relief. Right of Privacy, Concept This is the right to be left alone; the right of a person to be free from unwarranted publicity and the right to live without unwanted interference by the public in matters with which the public is not necessarily concerned. Invasion of Privacy, Concept Unwarranted appropriation or exploitation of ones personality, publicizing ones private affairs with which the public has no legitimate concern, or wrongful intrusion into ones private activities, in such a manner as to cause mental suffering, shame or humiliation to person of ordinary sensibilities. [Note] Such invasion may result to a actionable tort; though public figures have less protection than private persons. Torts Actions for Invasion of Privacy

(1) appropriation consisting of appropriation for the defendants benefit or advantage of the plaintiffs name or likeness;

(2) intrusion consisting of intrusion upon the plaintiffs solitude or seclusion as by invading his home; (3) public disclosure of private facts consisting of a cause of action in publicity, of a highly objectionable kind, given to

private information about the plaintiff, even though it is true and no action would lie for defamation. (4) False light in the public eye consisting of publicity which places the plaintiff in a false light.

Disturbance of Private Life/Family Relations of Another Alienation of Affection may be instituted against: (a) a man or woman who alienates the affection of a husband or wife to each other;


(b) meddling to poison the mind of one or more members of the family against other members; (c) prevention the reconciliation of spouses [Note] It is not enough for the woman to be merely the object of the affections of said husband. To be liable, she must have done some active acts calculated to alienate the affections of the husband. She must, in a sense, be a pursuer, not merely the pursued. In the same way, a prostitute may not be liable for alienation of affection of the husband of another woman for having sexual intercourse with him on a chance occasion. Alienation from Ones Friends A person who committed affirmative acts intended to alienate the existing friendship of one with his friends is liable for damages. A man is a social being and for being so, he needs friends to socialize with and to depend upon in case of need. To alienate him wrongfully or with malice from his friends is to cause him suffering for which he is entitled to damages. Vexing or Humiliating Another on Account of his Religious Beliefs Religious freedom does not authorize anyone to heap obloquy and disrepute upon another by reason of the latters religion. Place of birth, physical defect and other personal conditions are too often the pretext of humiliation cast upon persons. Such tampering with human personality, even though the penal laws are not violate, should be the cause of civil action. Unauthorized Use of a Picture The unauthorized use of a picture of the residence of the plaintiff for advertisement or promotional gain of a realty corporation with out the consent of the former and which advertisement has embarrassed the later is an actionable wrong. Same principle will apply to the advertisement of a picture of a person used for promotional purposes without his consent. If the purpose is not promotional but to malign the person, the act will be tantamount to a crime, for which, civil liability may be imposed on the offender. Special Torts, Moral Damages Recoverable for Violation of Articles 26, etc. The Civil Code authorizes the grant of moral damages in acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35. These are known as special torts.

(a) Art. 21 acts contrary to good morals, public order and public policy (b) Art. 26 act in violation of the dignity, personality and peace of mind of a person (c) Art. 27 act of a public official causing moral or material damage (d) Art. 28 unfair competition (e) Art. 29 dependent civil action (f) Art. 30 separate civil action (g) Art. 32 act in violation of civil liberties (h) Art. 35

Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. Reason behind Art. 27 The purpose of the law is to eliminate corruption in the government service. The law will serve as a deterrent to public officials and employees from delaying or refusing to perform official duties on flimsy reasons or excuses. To facilitate action when there is scheming delay, an ordinary citizen is constrained to give bribe to avoid inconvenience and damages. Requisites for Filing Actions Under Art. 27

(1) a public servant or employee refuses or neglects to perform his official duty; (2) there is no valid reason for the refusal or neglect to perform official duty; (3) that injury or damage is suffered by the plaintiff;

Coverage of Article The law applies only to acts of nonfeasance which means non-performance of some acts which a person is obliged or has responsibility to perform; omission to perform a required duty at all or, total neglect of duty. This article covers only non-feasance or non-performance of an official duty by a public officer. It does not apply to a case of negligence or misfeasance in carrying out an official duty. Nonfeasance, misfeasance, malfeasance Nonfeasance misans the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do; and malfeasance is the doing of an act which a person ought not to do. Ex. A civil registrar sat on the application of a couple for marriage license. He refused or neglected to issue the license applied for. This is nonfeasance. If the registrar issued the license applied for within 24 hours after the filing of the application (instead of after 10 days), there is an improper issuance of the license. This is misfeasance. If the registrar issued the license to the


applicants who are not of legal age and who obviously look so, the issuance is an illegal act which he should not have done at all. This is malfeasance. Nature of Duty, Ministerial For a public servant to be held liable under the Article, the duty, which he refused or failed to perform, must be ministerial in character, that is, the law absolutely requires him to perform it. If the duty is discretionary, he is not liable for his refusal or neglect to perform it, unless he acted in a notoriously arbitrary manner or he acted willfully, maliciously or with gross neglect. Good Faith, Not a Defense Good faith, or absence of malice, could not be proffered as a defense if there is refusal or neglect to perform an imperative duty. The reason is that an officer is under constant obligation to discharge the duties of his office, and it is not necessary to show that his failure to act was due to malice or willfulness. However, good faith may mitigate the amount of damages for which the public servant is liable. Inapplicability The article is not applicable when the public officer executed an act within the scope of his official capacity and in line of duty. It applies only if there is an unjustifiable refusal to perform an official duty causing damage or prejudice to another or when there is an inexcusable negligence. Art. 28 Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damage. Unfair Competition It consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business or services for those of the one having established goodwill, or committing any acts calculated to produce such result. Unfair competition is punishable under Art. 189 of the Revised Penal Code. Unfair Competition Unfair competition may be committed through the use of either:

(a) force (b) intimidation (c) deceit (d) machination (e) or any other unjust, oppressive or high-handed method in agricultural, commercial or industrial enterprises or labor

True Test of Unfair Competition The true test of unfair competition is whether certain goods have been intentionally clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care and not whether a certain limitied class of purchases with special knowledge not posses by the ordinary purchases could avoid mistake by the exercise of his special knowledge. Scope The article speaks of unfair competition in:

(a) industrial (b) agricultural enterprises (c) commercial enterprises (d) labor

Examples:

(a) a strike prematurely declared (b) a strike carried out through force, intimidation, deceit or other unlawful means (c) cutthroat competition (d) the making of any false statement in the course of trade to discredit the goods, business or services of another. (e) The making of goods so as to deceive purchasers (f) Selling goods above the maximum prices set by the state

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for the damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Rationale for Art. 29


The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage of justice, where the acquittal was due to a reasonable doubt. The reasoning followed in the old rule is that civil responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot be demanded. The Code Commission however felt that civil liability should not be proved also beyond reasonable doubt. It should only be proved by preponderance of evidence since the right of the aggrieved is no less private because the wrongful act is also punishable by the criminal law. Kinds of Acquittal Under the Rules of Court, the accused is entitled to an acquittal if his guilt has not been proved beyond re

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