PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEW 1

GUIDE QUESTIONS
Part 1

NOTE: The following questions are only a guide to the questions that will or may be asked
during the recitation and are not meant to be the only questions that will be asked. Take note
also that the cases applicable to each provision of the law, which you are presumed to have
read and discussed in the subject, will also form part of the recitations.

EFFECT AND APPLICATION OF LAWS

I. EFFECTIVITY OF LAWS

1. When do laws take effect?

-laws shall take effect 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.

2. What are the publication requirements?

-publication must be in full or it is no publication at all since its purpose is to inform
the public of the contents of the law. The mere mention of the number of the
Presidential decree, its whereabouts, the supposed date of effectivity, and a mere
supplement of the official gazette cannot satisfy the publication requirement. It is
not even a substantial compliance.

3. What is a newspaper of general circulation?

-for a newspaper to be considered of general circulation:
a. it must be published within the court’s jurisdiction.
b. it must be published at a regular intervals for disseminating local news and
general information.
c. it has a bona fide subscription list of paying subscribers; and
d. it is not devoted to the interest or published to the entertainment of a particular
class, profession, trade, calling, race, or religious denomination.

4. What is meant by the clause “unless it is otherwise provided”

-the clause unless otherwise provided refers to the date of effectivity and not the
requirement of publication itself. The requirement of publication may not be
omitted in any event. This clause does not mean that the legislator may make the
law effective immediately upon approval, or in any other date without its previous
publication.

5. What does it mean if the law provides that it shall take effect immediately?
-if the law provides for immediate effectivity, it is effective immediately after its
complete publication and not after signing of the president.

6. What laws are covered under Article 2 of the Civil Code?

-all laws are required to be published in full.

7. What laws are excluded by the publication requirement under Article 2 of the Civil
Code?
-the following laws need not be published:ryj

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 a. municipal ordinances
b. rules and regulations which are internal in nature
c. letters of instruction issued by the administrative supervisors on internal rules and
guidelines
d. interpretative regulations regulating only the personnel of administrative agency

II. PRESUMPTION OF KNOWLEDGE OF LAWS

1. What is the difference between ignorance of the law and ignorance of the fact?
-the following are the distinctions:
a. ignorance of the law pertains to the want of knowledge or acquaintance with the
laws of the land insofar as they apply to the act, relation, duty, or matter under
consideration while ignorance of the fact pertains to want of knowledge of some
fact or facts constituting to the subject matter on hand.
b. in ignorance of the law the mistake occurs when the person having full knowledge
of the facts comes into erroneous conclusion to its legal effects while in ignorance of
facts the mistake occurs when some facts which really exist are unknown or some
facts is supposed to exist which does not exist.
c. in ignorance of the law there is no excuses while in ignorance of fact good faith is
an excuse.

2. What laws are covered?

-the laws referred to under Article 3 of the New civil Code are those of the Philippine
laws and it applies to all kinds of domestic laws, whether civil or penal, substantive
or remedial. However, the article is limited to mandatory and prohibitory laws. It
does not include those which are merely permissive.

3. What are the exceptions?

-the presumption does not apply to foreign law; there is no presumption of
knowledge of foreign laws. It must be alleged and proved as a fact. Otherwise, the
doctrine of processual presumption will apply.

4. What is the doctrine of processual presumption?

-under the doctrine of processual presumption or the doctrine of presumed identity
approach in international law, if the foreign law involved is not properly pleaded and
proved, our courts will presume that the foreign law is the same as our local or
domestic law.

III. PROSEPECTIVE APPLICATION OF LAWS

1. What does prospective application of the law mean?

-As a general rule, laws shall have only a prospective effect and must not be applied
retroactively in such a way as to apply to pending disputes and cases. This is
expressed in the familiar legal maxim lex prospicit, non respicit, and is conformable
to Article 4 of the Civil Code.
2. What are the exceptions?
-the following are the exceptions:
1. If the law itself provides for retroactivity but in no case may an ex post facto law
be passed.
2. If the law is remedial in nature, since there are no vested rights in rules of
procedure.
3. If the statute is penal in nature, provided it is favorable to the accused or convict
and the latter is not a habitual delinquent as defined under the Revised Penal Code.
4. If the law is of an emergency nature and are authorized by the police power of the
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 government.
5. If the law is curative, provided it does not impair vested rights nor affect final
judgments.
6. If a substantive right is to be declared for the first time, unless vested rights are
impaired.
7. Tax laws
8. Interpretative statutes

3. What are the exceptions to the exceptions?

-the following are the exceptions to the exceptions:
1. it impairs obligation and contracts
2. it is in nature of ex post facto law or bail of attainder
3. divests vested rights
4. is constitutionally forbidden.

IV. WAIVER OF RIGHTS

1. What are the elements of rights?

2. What are the requisites of a valid waiver of rights?

-the following are the requisites:
1. waiving party must actually have the right he is renouncing
2. he must have full capacity to make the waiver
3. waiver must be clear and unequivocal
4. waiver must not be contrary to law, public order, moral, good customs, or
prejudicial to third person with a right recognized by law
5. when formalities are required, they must be complied with

3. When is there a valid renouncement of a right?

-the standard of a valid waiver requires that it not only must be voluntary, but must
be knowing, intelligent, and done with sufficient awareness of the relevant
circumstances and likely consequences.

V. REPEAL AND CONSISTENCY OF LAWS

1. When is there express repeal of a law?

-when an enactment of a subsequent statute declares that the former law shall be
revoked and abrogated.

2. When is there an implead repeal of a law?

-1. when the provision in the two acts in the same subject matter are irreconcilably
contradictory, in which case, the later act, to the extent of the conflict, constitutes
an implied repeal of earlier one; and
2. when the later acts cover the whole subject of the earlier one and is clearly
intended as a substitute; thus it will operate to repeal the earlier law.

3. In case of conflict between a general and a special law, which should prevail?
-if the general law was enacted prior to the special law, the latter is considered the
exception of general law. if the general law was enacted after the special law, the
special law remains.

4. What is the effect if the repealing law is itself repealed?

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 -if it is expressly repealed, the first law is not revived unless expressly provided so
and if it is impliedly repealed, the first law is revived unless otherwise provided.

VI. JUDICIAL DECISIONS

1. Are judicial decisions law?

-no, they are part of the legal system.

Decision of the supreme court, although in themselves not laws, are nevertheless
evidence of what the laws mean and this is the reason why under article 8 of the
new civil code, “judicial decisions applying or interpreting the laws or the
constitution shall form part of the legal system of the Philippines. Hence, the
supreme court’s interpretation of the statute forms part of the law as of the date it
was originally passed because the courts construction merely establishes the
contemporaneous legislative intent that the interpreted law carries into effect.

2. What is the doctrine of stare decisis?

-it is adherence to judicial precedents. Once a question of law has been examined
and decided, it should be deemed settled and close to further argument.

3. How may judicial decisions be abrogated?

-Judicial Decisions May Be Abrogated
(a) By a contrary ruling by the Supreme Court itself
(b) By corrective legislative acts of Congress (People v. Mendoza, 59 Phil. 163),
although said laws cannot adversely affect those favored prior to Supreme Court
decisions.

VII. DUTY TO RENDER JUDGMENT

1. If the law be silent, obscure, or insufficient, what then should the judge apply in
deciding a case?
-if the law is silent, or obscure or insufficient with respect to a particular
controversy, the judge shall apply the custom of the place, and in default
thereof, the general principle of law and justice.

VIII. DUTY TO RENDER JUDGMENT

2. If the law be silent, obscure, or insufficient, what then should the judge apply
in deciding a case?

 If the law is silent, obscure or insufficient with respect to a particular

controversy, the judge shall apply the custom of the place, and in default
thereof, the general principles of law and justice.

IX. APPLICATION OF CUSTOMS

1. What are the requisites before the courts can consider customs?
 The custom must be proved as a fact according to the rules of evidence.
This fact however, should possess the following requisites:
a. Plurality of acts;

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 b. Uniformity of acts;
c. General practice by the great mass of the people of the country or
community;
d. Continued practice for a long period of time;
e. General conviction that the practice is the proper rule of conduct; and
f. Conformity with law morals or public policy
2. What is meant by propter legem, contra legem, or extra legem?
 A custom maybe:
a. propter legem or in accordance with law; It is unnecessary to apply it
because it merely repeats the law.
b. contra legem or against the law; It is wrong to apply this custom.
c. Custom extra legem are those which may constitute sources of
supplementary law, in default of specific legislation on the matter
X. APPLICATION OF PERIODS

1. What happens if the last day of the period is a Sunday or a legal holiday?
It depends.
a. In an ordinary contract, the general rule is that an act is due even if the last
day be a Sunday or legal holiday. This is because obligations arising
contracts have the force of law between the contracting parties. Maturity
date of a negotiable instrument is one of the exceptions.
b. When the time refers to a period or allowed by the Rules of Court, by an
order of the court, or by any other applicable statute, if the last day is a
Sunday or a legal holiday, it is understood that the last day should really be
the next day, provided said day is neither a Sunday nor a legal holiday.
2. Does this rule apply in cases of a period provided in a contract between private
persons?
 No. In an ordinary contract, the general rule is that an act is due even if the
last day be a Sunday or legal holiday. This is because obligations arising
contracts have the force of law between the contracting parties. Maturity
date of a negotiable instrument is one of the exceptions.

XI. APPLICATION OF PENAL LAWS

1. What is the theory of territoriality?

 Penal laws and those of public security and safety shall be obligatory upon
all who live and sojourn in Philippine territory. Thus, any offense
committed within our territory by any citizen or alien is punishable under
our courts of law.
2. What are the exceptions to the theory of territoriality?
The following are the exceptions to the theory of territoriality:
a. The principles of public international law
b. The presence of treaty stipulations
XII. CONFLICT LAWS

1. Define Conflict of Laws?

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  That part of the municipal law of a State which directs its courts and
administrative agencies, when confronted with a legal problem involving a
foreign element, whether or not they should apply foreign law or laws.
2. What is meant by Nationality Principle?
 The Nationality Principle means that laws relating to family rights and
duties or the status, condition and legal capacity of persons are binding
upon citizens of a State, even though living abroad.
3. What is the Lex Rei Sitae rule?
 It is the paramount rule expressing that any conveyance, transfer or sale of
real as well as personal property shall be governed by the place where such
property is situated.
4. What is the exception to the Lex Rei Sitae rule?
 An exception to the rule is in the case of successional rights. The following
matters are governed not by the lex rei sitae, but by the national law of the
person.
a. Order of succession
b. Amount of successional rights, referring to the amount of property that
each heir is legally entitled to inherit from the estate available for
distribution.
c. Intrinsic validity of the provisions of the will
d. Capacity to succeed of an heir from the decedent.
5. What is the exception to the exception of the Lex Rei Sitae rule?
The following are the exceptions to lex rei sitae:
a. A matter which concerns only real property incidentally and which in
realityof a personal nature.
b. Treaty stipulations.
6. What is the Renvoi Doctrine?
 It literally means a referring back. The problem arises when there is doubt
as to whether a reference in one’s own law from that of the foreign law is a
reference to the internal law of said foreign law or is a reference to the
whole of the foreign law, including its conflicts rules.
7. What is Lec Loci Celebrationis?
 It provides that 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. This governs its extrinsic validity.
8. What law governs the intrinsic validity of a contract?
 The intrinsic validity of a contract shall be governed by lex contractus or the
agreement of the parties. It has two parts: (a) Lex Loci Voluntatis and (b)
Lex Loci Intentionis.
9. What is meant by Lex Loci Voluntatis?
 The intrinsic validity of a contract shall be governed by the law of the place
voluntarily selected by the parties.
10. What is meant by Lex Loci Intentionis?
 The intrinsic validity of the contract shall be governed by the law of the
place intended by the contracting parties
11. What law governs the extrinsic validity of a contract?
 Lex loci celebrationis (see above)

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 12. What is meant by the rule of extraterritoriality?
 Even if the act constituting an offense be done outside of the country like
those embodied under Article 2 of the Revised penal code, or committed in
Philippine embassy or against Philippines diplomatic or consular officials,
the solemnities of our Philippine laws shall be observed.
13. What law shall govern the marriage as a contract?
A. As to extrinsic validity of marriage, we follow lex loci celebrationis.
Exceptions: Void marriages under Philippine law even if valid in the country where it
was celebrated or in case of mixed marriages celebrated in the Philippines:
a. When either of the parties is below 18 years of age even with parental consent;
b. Bigamous or polygamous marriages;
c. Mistake as to identity of a contracting party;
d. A subsequent marriage performed without recording in the civil registry the
judgment of annulment or declaration of nullity, partition and distribution of
properties and the delivery of children’s presumptive legitimes;
e. Marriages where either spouse is psychologically incapacitated;
f. Incestuous marriages;
g. Void marriages by reason of public policy.

B. The intrinsic validity of a marriage contract shall be controlled by the parties’

personal laws either domiciliary or nationality.

14. What law shall govern the marriage as a status?

As to:
A. Personal rights and obligations of the spouses. The court will not interfere
ordinarily. The governing law is the national law of the husband. Subsequent changes
on the nationality of the spouses are proposed to have the following effects:
a. If both will have common nationality- the new nationality
b. If only one of the will change- the last common nationality
c. If there never was any common nationality- the national law of the husband at the
time of the wedding.

B. Property relations. In the absence of contrary stipulation in the marriage

settlement, the governing law is the national of the husband regardless of the place of
celebration of the marriage and their residence. However, this rule shall not apply:
a. Where both spouses are aliens.
b. With respect to the extrinsic validity of the contract affecting property not situated
in the Philippines and executed in the country ehre the property is located; and
c. With respect to the extrinsic validity of contracts entered into in the Philippines not
affecting property situated in a foreign country whose laws require different
formalities for their extrinsic validity.
15. What law shall govern the determination of the grounds for legal separation?
 The grounds for legal separation are the cumulative grounds provided by
the national law of the parties. (lex nationalii)
16. What is the doctrine of Immutability of Status?
 The change of parent’s nationality does not affect the status of the child.
17. What is mean by Lex Loci Delicti Commissi?

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  The offense committed shall be governed by the law of the place where the
crime took place.

HUMAN RELATIONS
XIII. ABUSE OF RIGHTS

1. What is meant by abuse of rights?

 Under the law, 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. If such provision is violated, there is an
abuse of rights.
2. What are the elements for abuse of rights?
 The following are the elements of abuse of rights:
a. There is a legal right or duty;
b. Such right or duty was exercised in bad faith; and
c. It is for the sole intent of prejudicing or injuring another.
3. What is meant by damnum absque injuria?
 It literally means “loss without injury”. This principle presupposes that the
proper exercise of a lawful right cannot constitute a legal wrong for which
an action lie, although the act may result in damage to another, for no legal
right has been invaded. The law affords no remedy for damages resulting
from an act which does not amount to a legal injury or wrong.

XIII. CONTRA BONUS MORES

1. What is meant by contra bonus mores?

Contra bonus mores literally means against good morals. Article 21 of the Civil Code
refers to acts contra bonus mores. 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.
2. What are the elements of contra bonus mores?
The elements are as follows
a. An act which is legal.
b. But is contrary to morals, good customs, public order or public policy.
c. And done with intent to injure.
3. What is the difference between article 20 and Article 21 of the new Civil Code?
The differences are:
a. In Article 21 the act is contrary to morals, good customs or public policy. While in
Article 20, the act is contrary to law.

b. In Article 21 the act is done willfully. Willful may mean not merely voluntary but
with bad purpose while in Article 20 the act is done either willfully or negligently.
4. Is the breach of promise to marry an actionable wrong?

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No. As a rule breach of promise to marry is not an actionable wrong. But Article 21 of
the Civil Code may be applied where the woman was a victim of moral seduction and
when the action is for the recovery of actual damages.

XIV. UNJUST ENRICHMENT

1. What is an accion in rem verso?

An accion in rem verso is an action for recovery of what has been paid or delivered
without just cause or legal ground. The purpose of the action is to prevent unjust
enrichment.
2. What are the requisites in an accion in rem verso?
The requisites are as follows:
1. One party must be enriched and the other party made poorer.
2. There must be a causal relation between the two.

3. The enrichment must not be justifiable.

4. There must be no other way to recover.
5. The indemnity cannot exceed the loss or enrichment whichever is less.

XV. SOLUTIO INDEBITI

1. What are the requisites in solution indebiti?

The requisites are (a) payment is made when there exists no binding relation between
the payor who has the duty to pay and the person who received the payment; (b)
payment is made through mistake, and not through liberality or some other cause.

XVI. THOUGHTLESS EXTRAVAGANCE

1. What are the requisites in case of thoughtless extravagance under the New Civil
Code?
The requisites are as follows:
a. There must be an acute public want or emergency.

b. There must be a thoughtless extravagance in expenses for pleasure or display.

c. Only government or private charitable institutions could file the action seeking to
stop the thoughtless extravagance.

XVII. PROTECTION OF HUMAN DIGNITY

PERSONS
XVIII. CIVIL PERSONALITY

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1. What is the distinction between Juridical Capacity and Capacity to Act?
The distinctions are:

a. Juridical capacity is the aptitude to be the subject of rights and obligations while
capacity to act is the power to give life to juridical acts with legal effect.
b. Juridical capacity is inherent in every natural person, therefore it is not acquired.
While capacity to act is not inherent, it is acquired.
c. Juridical capacity is lost only through death {in natural persons). While Capacity to
act may be lost through other means or circumstances.

d. Juridical capacity cannot be limited or restricted. While capacity to act can be

limited or restricted by circumstances.
2. What are the restrictions on capacity to act?
Under Art. 38 of the Civil Code the restrictions on capacity to act are as follows:

a. Minority
b. Insanity
c. State of being deaf-mute
d. Prodigality
e. Civil interdiction which includes deprivation by the court of a person’s right:
a) To have parental or marital authority.
b) To be the guardian of the person and property of the ward.
c) To dispose of his property by an act inter vivos.
d) To manage his own property.

3. What are the modifications or limitations on capacity to act?

Under Art. 39 the modifications of capacity to act are as follows:

a. Age
b. Insanity
c. Imbecility
d. State of being deaf-mute
e. Penalty

f. Prodigality
g. Family relations
h. Alienage
i. Absence
j. Insolvency
k. Trusteeship

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4. What is the effect of incapacity to act?
Incapacity to act does not exempt the incapacitated person from certain obligations
arising from his acts.

5. What is the effect of civil interdiction?

The effects of civil interdiction are deprivation of a person’s right:
a) To have parental or marital authority.

b) To be the guardian of the person and property of the ward.

c) To dispose of his property by an act inter vivos.
d) To manage his own property.

XIX. NATURAL PERSON

1. When is one deemed to have personality?

Birth determines personality. A person is considered born “for all purposes” if after
complete delivery from the mother’s womb the child (a) is alive even only for a few
hours, if he had an intra-uterine life of at least seven months; (b) the child is alive for
at least 24 hours, if it had intra-uterine life of less than seven months.

2. What is meant by presumed* ( baka met provisional) personality of a conceived

child?
Presumed personality means that a fetus is considered born only for civil purposes
which are beneficial.
Provisional personality of a child means that a conceived child, although as yet unborn,
has limited and provisional personality. It is limited only for purpose favorable to the
child.

3. What are the presumption of survivorship?

Presumption of survivorship is provided under Article 43 of the Civil Code as well as
Rule 131 of the Rules of Court.

Art. 43. If there is a doubt, as between two or more persons who are called to succeed
each other, as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, it is presumed that they died at
the same time and there shall be no transmission of rights from one to the other.

RULE 131, Rules of Court Sec. 3 (jj) That except for purposes of succession, when two
persons perish in the same calamity, such as wreck, battle, or conflagration, and it is
not shown who died first, and there are no particular circumstances from which it can
be inferred, the survivorship is determined from the probabilities resulting from the
strength and age of the sexes, according to the following rules:

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1. If both were under the age of fifteen years, the older is deemed to have
survived;
2. If both were above the age of sixty, the younger is deemed to have survived;
3. If one is under fifteen and the other above sixty, the former is deemed to have
survived;

4. If both be over fifteen and under sixty, and the sex be different, the male is deemed
to have survived; if the sex be the same, the older;
5. If one be under fifteen or over sixty, and the other between those ages, the latter is
deemed to have survived.

4. What are the rights of a conceived child?

The rights are as follows:
a. The right to be a done of a simple donation but acceptance shall be made by
persons who would legally represent him if finally born.
b. The right to receive support from his progenitors.
c. The right to be an heir, his omission in his parents will results to preterition.

5. When is civil personality extinguished?

Under Art. 42 of the Civil Code, civil personality is extinguished by death. The effect of
death upon the rights and obligations of the deceased is determined by law, by
contract and by will.

6. What are the differences between article 43 of the NCC and Rule 131, Sec. 5(jj)
of the Rules of Court on the presumption of survivorship?
The differences are:
a. Art. 43 is a presumption regarding simultaneous death and not a rule on
survivorship. On the other hand, the Rules provide for a presumption of survivorship
based on certain criteria.
b. Article 43 shall apply where (a) the case involves succession; and (2) the persons
do not perish in the same calamity. The Rules of Court shall apply where (a) the issue
does not involve succession but something else; and (b) the persons perish in the same
calamity

XX. JURIDICAL PERSONS

1. What are the rights of juridical persons?

Judicial persons have the right to acquire and possess property of all kinds, as well as
incur and bring civil or criminal actions in conformity with the laws and regulations of
their organization. Art. 46
2. When is there cessation of civil personality?

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There is cessation of civil personality when the juridical person’s existence is
terminated. (such as dissolution of corporations, institutions and other entities for
public interest)?

XXI. DOMICILE AND RESIDENCE OF PERSON

1. What are the kinds of domicile?

The kinds of domicile are as follows:
a. Domicile of Origin. It is the domicile of parents of a person at the time he was
born.
b. Domicile of Choice. It is the domicile chosen by a person, changing his domicile
of origin.
c. Domicile by Operation of Law or Constructive domicile. It refers to all those who
lack capacity to choose their own domicile such as infants, married women idiots and
the insane.

2. Distinguish the domicile of natural persons and that of juridical persons?

The domicile of natural persons is the place of their habitual residence, while the
domicile of juridical persons is the place fixed by the law creating or organizing them
or in the absence of which it shall be understood to be the place where their legal
representation is established or where they exercise their official functions. Art. 51

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