PRELIMINARY CHAPTER

Law General sense(derecho)

- Science of moral laws based on the rational nature of man which governs his free activity

Specific sense (Ley)

- Rule of conduct, just and obligatory, promulgated by legitimate authority, and of common observance
and benefit

Civil Law
General Sense
- Branch of aw that treats of the personal and family relations of an individual, his property and
successional rights, and the effects of his obligations and contracts
- Constitutive law of persons and property

Specific Sense
- Mass of percepts that determines and regulates systems, authority , and obedience which exists among
members of the family as well as those among members of the society for the protection of private
interests (Sanchez, Roman)
- Branch of Public law which determines and regulates relations of systems, obedience, and authority
among members of the family and among those members of the society for the protection of private
interests (Sanchez, Roman)
Coverage
1. Persons
2. Property
3. Obligations and Contracts

Civil Code
- Collection of Civil Laws
- Codification of civil laws
- Not all our civil laws are found in the civil code (ex. Family Code)
 Laws are dynamic, never static
 Laws are enacted after the civil code was enacted are not included in the code
- Any law that is civil in nature and not found in the civil code is a special law (special civil law)
 They continue to be civil in character even if they are not found in the civil code
 Laws enacted after the civil code was enacted

Sources of the Civil Code

Primary
-Spanish civil code of 1889
 Our civil laws are principally spanish in origin

Spanish Civil Code

The Spanish civil code of 1889 took effect on December 7 or 8, 1889 here in the Philippines
 It was published on the Gaceta de Manila on November 7, 1889
 Under Gaceta de Manila laws take effect 30 days after such publication
 Both dates are backed up by Supreme Court decisions
 Both dates are acceptable but majority view supports December 7
Spanish Civil Code ceased to be effective on August 30, 1950
 On the same date the new civil code took effect
 Because we will have day without a civil code (laws must be continuous)

ARTICLE 1. This act shall be known as the civil code of the Philippines

New Civil Code of the Philippines

- Became a law by congressional act
- RA 386 – An act to ordain or institute the Civil Code of the Philippines
- The New Civil Code became a law on June 18, 1949 (Approval of RA 386)
- The New Civil Code took effect on August 30, 1950 (reason: the code was released to the public on August
30, 1949 which was computed by the CA 1 year from circulation NOT publication)

ARTICLE 2. Laws shall take effect after fifteen days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. This
code shall take effect one year after such publication. (As amended by E.O. 200)

This article pertains to laws in general and the civil code in the Philippines

Before Martial Law

- Effectivity of laws
 After the 15th day (16th day)
 Must be published
o Askay v Cosalan (qualified answer of the Supreme Court)
 If in the effectivity clause of the law, a date has been set to when the law will
take effect. It will take effect on the date in the effectivity clause EVEN
WITHOUT PUBLICATION
 If no date has been set in the clause, PUBLICATION IS NECESSARY

During Martial Law

- Effectivity of laws
o Tanada v Tuvera (1st petition, Main Petition, filed in the SC)
 SC made a distinction between laws of general application and laws of
particular application
 If a law is of particular application (only applies to a section or certain
individuals) PUBLICATION IS NOT NECESSARY
 If a law is of general application then PUBLICATION IS MUST
 If a law is penal in character, PUBLICATION IS NECESSARY
After Martial Law
- Effectivity of Laws
o Tanada v Tuvera (2nd petition, Clarificatory Petition, filed in the SC)
 Petitioners questioned (SC answered)
1. What is meant by “law of public nature” or “general applicability”?
2. Must a distinction made between laws of general applicability and laws
which are not?
 No need because under article 2, as long as it is a law, publication
is a must regardless of general or particular application
3. What is meant by “publication”?
 The entire law must be published
 Law must be published in full or there is no publication at all
4. Where is the publication to be made?
 It must be made in the Official Gazette (Publisher of the State)
5. When is the publication to be made?
 Tanada contested that the Gazette is always late. SC said that there is nothing
they can do because they cannot amend article 2

Cory Aquino
- Abolished/Dissolved congress
- She had a revolutionary government (she promulgates laws and reorganized the supreme court)
- she was exercising executive and legislative powers
 She amended article 2 (E.O. 200)
 EO 200 added “or in a newspaper of general circulation”

Difference of the Main Petition and Clarificatory Petition

1. The MAIN petition was decided DURING martial law, while the CLARIFICATORY petition was decided
AFTER martial law
2. The main petition was headed by the then Chief Justice Enrique Fernando, while the clarificatory petition
was headed by then Chief Justice Claudio Teehankee
3. Both petitions were not decided by the same supreme court

It is a newspaper of general circulation if it is:

1. Within the courts jurisdiction
2. Published at regular intervals for dissemination of local news or info
3. bonafide subscription list of paying subscribers
4. Not devoted to the interest or published for entertainment of a particular class, profession, trade, calling,
race, or religious act

Article 2
- “Unless otherwise provided”
 Refers to effectivity NOT publication
 Not an exception to publication
 15 days may be reduced or extended
- Publication is necessary
- Publication must be in full (complete)
- If the effectivity clause states “effective upon the signature of the president” it still needs to be published
(law must be published first to take effect) (Umali v Estanislao)
- NO law can take effect without publication
- Judicial decisions are not laws, therefore there is no need of publication (no under article 2)
 Lawyers particularly those who practice law must be abreast, updated about the decisions of the
supreme court (Roy v CA)
Publication requirement is NOT absolute
Exception: Circulars which are merely interpretative and internal rules and regulations intended for
internal purposes

ARTICLE 3. Ignorance of the law excuses no one from compliance therewith.

- Everyone is conclusively presumed to know the law

- Once a law has been promulgated and has taken effect, it is the duty of everyone to know it
- We are presumed to know the existence of the law. NOT the correct interpretation
- Laws covered under this article are only Philippine laws. Foreign laws must be alleged and proved
- You are presumed to know mandatory or prohibitory domestic laws
- Directory laws are not covered by article 3
 Not mandatory
 Non observance, non compliance, does not affect the community of ones act
 Optional

Mistake of fact
- May at time be a valid excuse
- Eliminates criminal intent as long as there is no negligence
- Ex. If a man remarries a woman knowing that the former wife was dead (which was not)

Mistake of fact distinguished from ignorance of the law

1.

Principles of article 3
1. Necessity
2. Expediency

Doctrine of processual presumption

- Applies to invocation of foreign laws
- If we are to invoke a foreign law here in the PH, first obligation is to prove such foreign law exists
- If you cannot prove the existence of the foreign law, presumption is that the foreign law is the same as
Philippine law (applicable law becomes Philippine law)

*(not sure)
- Article is not applicable to foreigners – for the reason that foreigners are presumed not to know PH laws such as
Filipinos are presumed not to know foreign laws

ARTICLE 4. Laws shall have no retroactive effect, unless the contrary is provided.

Retrospective law
- Looks backwards or contemplates on the past
- Affects acts or facts occurring, or rights occurring before it came into force

Ex Post Facto law

- One that would make a previous act criminal although it was not so at the time it was committed
- To be an ex post facto law it is:
1. Refer to criminal matters
2. Retroactive in its application
3. Prejudicial to the accused
Exception to article 4
1. Penal laws favorable to the accused
 Provided that the accused/convict is not a habitual delinquent
2. Procedural and Remedial laws
3. Curative laws
4. Laws creating new substantive right

ARTICLE 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the
law itself authorizes their validity.

Mandatory Law
- Law commands something should be done
Prohibitory Law
- Law commands something should not be done

Exceptions to article 5
1. If the law itself authorizes validity although generally would have been void
2. Law itself makes the act valid, but punishes the violator
3. Law merely makes the act voidable (valid unless annulled)
4. Law declares the act void but recognizes the legal effects arising from it

Mandatory law (generic term)

- Describing statutes which require and not merely permit a course of action
- Characterized by such directives as “shall” and NOT “may”(directory law)
- Omission of which renders the related proceedings void
Directory law
- Solely for the protection of private interests, which can be abrogated by the agreement of the parties
- Characterized by such directives such as “may”
- Merely optional
- Acts contrary to directory, permissive, or suppletory laws are not nullified by article 3

ARTICLE 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
Power given to a person and as a rule, demandable of another

 Real right (jus in re, jus in rem) – enforceable against the whole world (absolute rights)
 Personal right (jus in personam, jus ad rem) – enforceable against a particular individual (relative
right)
Waiver
Intentional or voluntary relinquishment of a known right

Rights which cannot be renounced

1. Natural rights (ex. Right to life)
2. Alleged rights which really do not exist yet (ex. Future inheritance)
3. Those the renunciation of which would infringe upon public policy (ex. Right to be heard in court)
4. When the waiver is prejudicial to a third person with a right recognized by law
Rights wich may be renounced
1. Right of the accused to be helped by counsel
2. Right of the accused in criminal case to have preliminary investigation

Requisites of a valid waiver

1. The person waiving it must be capacitated to make the waiver
2. The waiver must be made clearly, but not necessarily express
3. The person waiving must actually have the right which he is renouncing
4. The waiver must not be contrary to law, morals, public policy, public order, or good customs
5. The waiver must not prejudice others with a right recognized by law
6. As in the express remission of a debt owed in favor of the waiver, must comply with the formalities of a
donation

Delimitations
1. When it is contrary to law
2. Contrary to public policy
3. Contrary to public order
4. It violates a right of a person who said to have rights recognized by law
5. When an act is both a right and a duty (ex. Sexual intercourse)
 Right of the spouse who wants/craves it
 Duty of the spouse against whom the right is exercised/enforced

Elements of a right
1. Active subject – person who is entitled to demand the enforcement of the ight
2. Passive subject – person who is duty-bound to suffer its enforcement
3. Object – they are things and services which are intended for the satisfaction of human wants, phyisical or
spiritual
4. Efficient cause – facts that gives rise to the legal relation (may spring from will of man such as contracts)

Article 6
- This article refers to waiver of rights
- Only rights are allowed to be waived (not obligations or duties)
 Right connotes power
 Obligation connotes subjection
- If you are NOT exercising your right, you are waiving it
- Waiving of right is NOT absolute

If you waived a right which caused damage/prejudice to another, is the waiver valid?
- No, it will only be invalidated if it caused damage to another with a right recognized by law
- Person damaged by the waiver has a right recognized by law

ARTICLE7. Laws are only repealed 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.

Reason
- Since laws are promulgated by competent authority of the state, they can cease to have effect only
through the will of the state
- Only the state can abrogate its own acts
Repeal – Abrogation of law

Effect of repeal of law

- Repeal affect or impair any vested right, act one, penalty accrued, or any judgement already final before
the repeal
- Effect of a repealing act must be generally be governed by the rules on retroactivity of laws
- Must be prospective, except in criminal cases when it is in favor of the accused

Laws are repealed

1. Expressly – the subsequent law expressly states the repeal of the prior law in the special provision
2. Impliedly – if the provisions of the subsequent law are inconsistent or incompatible with the prior law ( it
states “all previous laws inconsistent with the present laws are hereby repealed”)

Implied repeal
- Not looked upon with favor
- If both laws can stand together, there is no repeal
Requisites of implied repeal
1. Laws cover the same subject matter
2. The latter is repugnant to the earlier

Ways for a law to cease to take effect (Dean Aligada)

1. Lapse (permanent)
2. Repeal (permanent)
3. Moratorium laws (temporary)

Ways for a law to cease to take effect (Atty. Gonzales)

1. Lapse
2. Repeal
3. Declared unconstitutional by the courts
4. If it was unpublished (created rights, doctrine of operative facts)

Repeal of repealing law (Dean Aligada)

- If the repealing law is impliedly repealed, original law is revived (law 1)
 Unless the contrary is expressly stated
- If the repealing law is expressly repealed, original law is not revived (law 1)
 Unless the contrary is expressly stated

Repeal of repealing law (Atty. Gonzales)

Scenario 1:
If law 1 impliedly repealed by law 2
Law 2 impliedly repealed by law 3
Law 1 is revived

Scenario 2:
If law 1 impliedly repealed by law 2
Law 2 expressly repealed by law 3
Law 1 is not revived
Scenario 3:
If law 1 expressly repealed by law 2
Law 2 expressly repealed by law 3
Law 1 is not revived

Scenario 4:
If law 1 expressly repealed by law 2
Law 2 impliedly repealed by law 3
Law 1 is not revived

Conflict between a General and Special Law

- If the special law was promulgated AFTER the enactment of the enactment of the general law (general law
was first) and there are conflicts between both laws, THE SPECIAL LAW SHALL BE CONSIDERED AS AN
EXCEPTION TO THE GENERAL LAW

- If the special law was promulgated BEFORE the general law (special law was first) THERE WILL BE NO
REPEAL OF THE LAW unless:
1. There is an express declaration to the contrary
2. There is a clear, necessary, and unreconcilable conflict between the two laws
3. Unless the subsequent general law covers the whole subject and is clearly intended to replace the
special law on the matter
 The former(special law) becomes part of the latter(genera law)/absorption of the special law

Special law CANNOT be repealed by mere implication

Lapse – to be no longer effective WITHOUT repeal / expiration

Lapse of law
- A law may expressly provide that it shall be effective only for a fixed period
- End itself in view of the expiration of the period during which it was supposed to be effective

Grounds for declaring a law unconstitutional

1. The enactment of the law is not within the legislative power of the law making body
2. Arbitrary methods have been established
3. Purpose/effect violates the constitution or its basic principles

An unconstitutional law (orthodox view)

1. Confers no right
2. Creates no office
3. Affords no protection
4. Justifies no acts performed under it

Operative Facts Doctrine

- The legislative/executive act, PRIOR to it being declared unconstitutional by the courts IS VALID AND
MUST BE COMPLIED WITH
- Acts done pursuant to a law which was subsequently declared unconstitutional remain valid, but not
when acts are done after the declaration of unconstitutionality
- Acts/rights conferred by a law which was subsequently declared unconstitutional is recognized(before
being declared unconstitutional, the acts/rights are valid)

Orthodox view
- All rights will be abolished
 - The right conferred is considered null
- The law was considered to never have existed in the first place

Modern View
- Rights created will remain after being declared unconstitutional
- Rights which were created before being declared unconstitutional are recognized

ARTICLE 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines

Judicial Decisions in this Article

- Decisions by the Supreme Court
- Decisions of subordinate courts are only persuasive in nature and can have NO mandatory effect
 The rule does not mitigate CA conclusions
 CA conclusions may serve as a judicial guide to inferior courts
 CA conclusions can be raised to the status of a doctrine after it has been subjected to test in
crucible analysis and revision, Supreme court should find that it has merits and qualities
sufficient for its consecration as a rule of jurisprudence
- Judicial decisions/Interpretations are NOT LAWS (does not need to be published)
 It is the duty of the lawyer to be abreast with the rulings of courts
- Judicial decisions does not fall under article 2
- Judicial interpretation becomes part of the law as of the date that law was originally passed
 It WILL retroact up to the date the law was originally passed
 Will retroact IF parties affected haven’t relied on an old doctrine with good faith
- Courts construction merely established contemporaneous legislative intent that the interpreted law
carried into effect
- Reversal of interpretation CANNOT be given a retroactive effect
 Parties have relied on the old doctrine with good faith
- Decisions of SC and CA on cases of FIRST IMPRESSION, establish jurisprudence or doctrines here in the
Philippines
- SUPREME COURT has the last word on what the law is
 The final arbiter f any justiciable controversy

Stare Decisis (Let it stand, et non quieta movere)

- Adherence to judicial precedents
- When a court has once laid down a principle as applicable to a certain state of facts, it will adhere to that
principle and apply it to all future cases where the facts and issue are similar
 Reason : economy and stability (time, effort, & money)
- Doctrine of Stare Decisis is NOT absolute
 All courts below the SC must adhere and follow the doctrines laid down by the SC
 BUT the SC itself can reverse its own decisions (Only the SC can reverse itself)
 Judicial decisions are abrogated by contrary ruling of the SC itself (when the new ruling is
contrary to the old ruling, the new ruling governs)
Kinds of Stare Decisis
1. Vertical Stare Decisis – lower courts must adhere to the decisions given by the Supreme Court
2. Horizontal Stare Decisis – the courts will apply the doctrine given by the higher court in future cases with
similar set of facts
Corrective legislative acts of congress
- Cannot affect those favored prior to SC decisions
- Congress cannot AFTER a SC decision allowed to define the terms it uses in a statute
Primary duty of the judiciary
- Solve controversies
- Answer questions of the law
- Apply/Interpret the law
Judicial decisions shall be prospective

ARTICLE 9. No judge or court shall decline to render judgement by reason of the silence, obscurity or
insufficiency of the laws.

Judge is duty bound to render judgement

- Even if the law is unjust (dura lex sed lex)
 What the law grants the courts cannot deny

Judicial Legislation
- If the judge changes, adds, removes, different from the intent of the legislator
- Fills in the deficiency

The judge may apply any rule he desires as long as the chosen is in harmony with the general interest, order,
morals, and public policy.
 Incase of silence, insufficiency, or obscurity of law the judge may apply:
1. Customs which are not contrary to law, public order, and public policy
o The custom must be proved as a fact according to the rules of evidence
2. Decisions of foreign and local courts on similar cases
3. Opinions of highly qualified writers and professors
4. Rules of statutory construction
5. Principles laid down in analogous cases

National custom – applicable to the whole country

Local custom – applicable to specific places (must be proved first)

The rule may only apply in 3 instances

1. Silence
2. Obscurity
3. Insufficiency

- The rule may only be applied in civil cases

- If the case is criminal in character, the judge shall render a judgement by dismissing or acquitting the
accused/criminal
 (Nullum crimen, nulla poena sine lege) There is no crime when there is no law punishing it

ARTICLE 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
intended right and justice to prevail.

Equity
- Justice outside legality (SC)
- Fairness or justice in the way people are treated
- Justice sweetened with mercy
Applicability of Article
- Only in case of doubt
 - All other rules of interpretation fail
- Applied only in the ABSENCE of, and never against, statutory law or judicial rules of procedure

If the law is not doubtful this rule does not apply

- Dura lex sed lex
 The law may be harsh but it is still the law
- Judicial conclusions inconsistent with the spirit of the law must be avoided

In favor of right and justice when the law is doubtful or obscure

- To avoid injustice

Rules of statutory construction

- Requisites of statutory construction
1. Only if there is an actual case/controversy
2. If there is ambiguity/vagueness
- Courts can only construe if there is a case filed

Ambiguity
Susceptible to two or more meanings
Vague
Broad
Covers more than 1 subject (ex. Rich, tall)

Judicial notice

ARTICLE 11. Customs which are contrary to law, public order or public policy shall not be countenanced.

Custom
- A rule of human action/conduct established by repeated acts, and uniformly observed
- A rule of society(societal rule)
- Legally binding and obligatory

Requisites to consider a custom

1. Must be proved as a fact according to the rules of evidence; otherwise, the custom cannot be considered
as a source of right
2. Must not be contrary to law, public order, or public policy
3. There must be a number of repeated acts
4. Repeated acts must be uniformly performed
5. There must be juridical intention to make a rule of social conduct
6. There must be a sufficient lape of time

Law
Written
Consciously made
Enacted by congress

Custom
Unwritten
Spontaneous
Comes from society
ARTICLE 12. A custom must be proved as a fact, according to the rules of evidence

Requisites before a custom may have the force of suppletory rule/considered as a source of right

1. Plurality of acts
2. Uniformity
3. General practice by the great mass of the social group
4. General conviction that it is the proper rule of conduct
5. Continued practice for a long period of time
6. Not contrary to law, morals, and public order

ARTICLE 13. When the law speaks of years, months, days or nights, it shall be understood that years are of 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 last day included.

Years – 365 days

Months – 30 days (Legal Month)
Days – 24 hours
Night – sunset to sunrise

Week
- When computed according to the calendar, a period of 7 days beginning on Sunday and ending on a
Sunday

- When computed without reference to the calendar, 7 successive days without regard to the day of the
week when it shall begin

If the last day falls on Sunday, Saturday, legal holiday

- Ordinary Contract
 Agreement of the parties prevail
 An act is due even if it is a Sunday/Saturday/legal holiday
 Obligations arising from contracts have the force of a law between the contracting parties
 The debt due on a Sunday must, in the absence of an agreement, be paid on THAT Sunday

- Under the rules of court

 It shall be understood that the last day should be the next day provided that it is NOT A SUNDAY
OR A LEGAL HOLIDAY
 The time shall not run until the NEXT WORKING DAY

Civil, Solar, Calendar Month

- One which agrees with the Gregorian calendar (January, February, …)
- Composed of unequal portions of time/days per month
ARTICLE 14. Penal laws and those of public security and safety