PERSONS AND FAMILY

I. DEFINITIONS, EFFECT AND APPLICATION Basic Premise

OF LAWS  Divine pronouncements
A. DEFINITIONS  Natural moral nature of man
Law may be defined n it most generic  Legislative enactments
signification as an ordinance of reason  Jurisprudence or Judicial decisions
promulgated for the common good by Him who is  Convention or treaties
in charge.  Customs and traditions
Classification of HPL:
To be useful and fair, law has to be As to right or procedure for enforcement is given:
promulgated- made known to those who are  Substantive law – that w/c establishes
expected to follow it. right and duties (e.g. Civil Code)
 Remedial law – that w/c prescribe the
Classification of Law (manner or manner of enforcing legal rights and
promulgation) claims.
Natural Law As to scope or content:
Natural Moral Law – e.g. do good and avoid
 Private law – w/c regulates the
evil
relationship of the members of a
Law of Nature – e.g. the law of gravity
community with one another (e.g. Civil
Positive Law
Code or Commercial laws)
Divine Positive Law – e.g. 10 Commandments
 Public law- w/c governs the relations of
Divine-Human Positive Law- e.g. the
the individual with the State or ruler or
commandments of the Catholic Church
community as a whole
Human Positive Law- e.g. congressional statutes
As to force or effect:
or Executive Orders
 Mandatory/Prohibitive law- w/c has to be
complied with, because they are
Human Positive Law – is a rule of conduct, just,
expressive public policy. Disobedience is
obligatory, promulgated by legitimate authority,
punished either direct penalties or by
and of common observance and benefit.
considering an act or contract void
 Permissive law- w/c may deviated from, if
Essential Elements oh HPL:
the individuals so desires
 Reasonable rule of action
 Due promulgation
Civil Law – is that branch of the law that generally
 Promulgation by competent authority treats of the personal and family relations of an
 A sanction imposed for disobedience individual, his property and successional rights
and the effects of his obligations and contracts.
HPL vs Morality - HPL only covers the external
conduct while Morality covers both external and Civil Law vs Political law - civil aw governs the
internal conduct. HPL is enforces by the State. relations of the members of a community with
one another, political law deals with the relations
of the people and the government.
1|Page
 PERSONS AND FAMILY
B. EFFECT AND APPLICATION OF LAWS
The law should be not be interpreted on the
letter but by the spirit. “The law should not be
interpreted by the words that killeth but the
spirit that giveth life.” –the spirit here is that
which idealize the sense of justice.
ARTICLE 2
What – Aspect of effectivity?
Effectivity of laws from the view point of
publication. All laws not only those of general
application; except interpretative regulations,
internal rules or instructions.
Why – to satisfy the due process requirement
How – it must be published completely
Where – publishing it either in the Official
Gazette, or newspaper by general circulation.
When does law become effective?
1. Whenever the law provides.
2. If no effectivity – after 15 days following
the publication
3. Shall take effect IMMEDIATELY upon
approval (provided it is published.)
ARTICLE 3
Maxim: Ignorantia legis non excusat – Ignorance
of the law excuses no one.
When laws are published and became effective it
is conclusively presumed that everyone knows it
and is bound to obey it.
Extend and applicability:
- All kinds of domestic laws2
- Whether civil or penal1, substantive or
remedial
1 2
branch of law that defines crimes, treats and their nature and
provides of its penalties.
2|Page
Ignorance of foreign law is ignorance of fact
because foreign laws must be alleged and proved.
If the foreign law is not properly alleged and
proved the presumption is that it is the same as
our law. This presumption is the processual
presumption.
Doctrine of Processual Presumption
The foreign law, whenever applicable should be
proved by the proponent thereof, otherwise such
law shall be presumed to be exactly the same as
the law of the forum. (CIR vs Fisher Jan 28, 1961)
Ignorance of law vs Ignorance of fact –
Ignorance of law is not an excuse for not
complying with it, ignorance of fact (mistake of
fact) eliminates criminal intent as long as there is
no negligence. In addition, mistake on a doubtful
or difficult question of law may be the basis of
good faith. Mistake of fact may furthermore
vitiate consent in a contract and make it voidable.
In case of mistake on a doubtful or difficult
question of law, this has been given the same
effect as mistake of the fact. This does not mean
one is excused of such ignorance; he may still be
liable but can be mitigated
ARTICLE 4
XPN to the Prospective Effects of Laws:
 If the law provides for retroactivity
(except, ex post facto law2)
 When the statute is penal in nature,
provided it is favorable to the accused or
convict and that the accused or convict is
not a habitual delinquent. (People vs
One that makes criminal and punishable an act done before
the passing of the law and which was innocent when done.
 PERSONS AND FAMILY
Genosa- led to the development of RA
9262 (battered wife syndrome)–VAWC)
 If the laws are remedial in nature ( no
vested rights in the rule of procedure)
 If the law is curative (to be valid, must not
impair vested rights nor affect final
judgments)
ARTICLE 5
General Rule: Violations of Mandatory or
Prohibitory law result in void acts or contracts.
XPN:
1. When the law makes an act void but
merely voidable. (Valid unless annulled)
e.g. is marriage where consent is vitiated by
intimidation, the marriage is not void but
only voidable.
2. When the law makes the act valid but
subjects the wrong doer to criminal
responsibility (widow generally must wait
for 300 days before remarrying, if she
violates this the marriage is still valid but
he can be accused of bigamy)
3. When law make the act itself void, but
recognizes some legal effects flowing there
from.( brother cannot marry her sister,
any child they would have would be
illegitimate)
4. When the law itself makes certain acts
valid although generally they would have
been void. (lotto/jai alai)
ARTICLE 6
General Rule: Right may be waived.
XPN:
1. When the waiver is contrary t law, public
order, public policy, morals and good customs.
2. When the waiver is prejudicial to a third
person with a right recognized by law.
3|Page
Requisites for a valid waiver:
 The person waiving must be capacitated to
make the waiver.
 The waiver must be made clearly, but not
necessarily express.
 The person must have the right which he
is renouncing.
 In express remission of debt owed in favor
of the waiver, must comply with the
formalities of a donation.
 And the 2 XPN above.
Rights that cannot be renounced:
 Natural rights (right to life)
 Alleged rights which really do not yet exist
(future inheritance)
 Those renunciation of which would
infringe upon public policy (right to be
heard in court, waiver in advance of
mensada)
 When the waiver is prejudicial to a third
person with a right recognized by law.
(third person- creditors)
Rights that may be renounced:
 Support in arrears
 The right to object to testimony of a wife
on information obtained because of her
domestic relations with her husband, is
waived when husband accused of killing
his son, does not only deny his guilt, but
also points to the wife as the killer
 The right of the accused to be helped by
counsel.
 Other list, refer to textbook page 43.
ARTICLE 7
Kinds of Repeal:
 Express
 PERSONS AND FAMILY
 Implied – when the provisions of
subsequent law are incompatible or
inconsistent with those of the previous
law.
Rule for General and Special Laws
1. General Law enacted prior to Special Law –
the latter is the exemption, the general law
remains good law and no repeal.
2. General Law enacted after Special law – the
special law remains unless:
 There is an express declaration to the
contrary
 There is a clear, necessary and
irreconcilable conflict
 Or unless the subsequent general law
covers the whole subject and is clearly
intended to replace the special law on the
matter.
Rule on Repeal of repealing Laws:
1. If the old law is expressly repealed and
repealing law is repealed: THE OLD LAW IS
NOT REVIVED.
2. If the old law is impliedly repealed and
repealing law is repealed: THE OLD LAW IS
REVIVED.
Effects of a law that has been declared
unconstitutional:
- Operation and effects maybe relaxed or
qualified because the actual existence of
the law prior to such declaration is an 3
fact and may have consequences which
cannot justly ignored.
Doctrine of Operative Fact
This is when legislative or executive act, prior to
its being declared as unconstitutional by the
courts, is valid and must be complied with.
4|Page
Grounds for declaring a law unconstitutional:
1. The enactment of the law may not be
within the legislative power of the
lawmaking body.
2. Arbitrary1 methods may have been
established.
3. The purpose of effect violates the
constitution or its basic principles.
ARTICLE 8
Judicial decisions – are not laws, they are
evidence. The interpretation placed upon the
written law by a competent court has the force of
law.
Supreme Court decision on cases of first
impression and not reversed decisions, establishes
jurisprudence or doctrines in the Philippines.
COA decision has persuasive character; if he
decisions remained not reversed it will be
absorbed in the decision of the SC.
Doctrine of Stare Decisis (adherence to
precedents)
Once a case has been decided one way, hen
another case involving exactly the same point at
issue should be decided in the exact manner.
However, when there is conflict between the
precedent and the law, this does not and should
not apply.
Obiter Dicta (Opinions)
Not binding, and cannot have the force of judicial
precedents.
1
Determined by individual convenience rather than by
necessity.
 PERSONS AND FAMILY
Res Judicata and Stare Decisis – are general
procedural law principles which both deal with
the effects of previous but factually similar
dispositions to subsequent cases.
The focal point of res judicata is the judgment.
The Principle states that a judgment on the merits
in a previous case rendered by a court of
competent jurisdiction would bind a subsequent
case if, between the first and second actions,
there exists an identity or parties of subject
matter and of causes of action.
The focal point of stare decisis is the doctrine
created.
ARTICLE 9
When law is silent, judge can give decision- He
may apply any rule he desires as long as the rules
chosen is in harmony with general interest,
order, morals and public policy.
Among such rules:
- Customs which are not contrary to law,
public order and public policy
- Decision of foreign and local courts on
similar cases
- Opinions of highly qualified writers and
professors
- Rules of statutory constructions
- Principles laid down in analogous
instances.
Ubi cadem ratio ibi eadem disposito – where the
law governing a particular matter is silent on a
question at issue the provision of another law
governing another matter may be applied where
the underlying principle or reason is the same.
ARTICLE 10
Dura lex sed lex – The law may be harsh, but it it
still the law
5|Page
In case of doubt, the judge should presume that
“the lawmaking body intended right and justice to
prevail.”
ARTICLE 11 & 12
Custom is a rule of human action (conduct)
established by repeated acts, uniformly observed
or practice as a rule of society, through the
implicit approval of the lawmakers and which is
therefore, generally obligatory and legally
binding.
Requisite before the courts consider custom:
 Must be proved as a fact (Art 12)
 Must not contrary to law
 Must be a number of repeated acts and
uniformly performed
 Must be a judicial intention
 Must be sufficient lapse of time (this gives
evidence of the fact that indeed it exists)
Courts cannot take a judicial notice over a
customs; it must be proven through the rules of
evidence.
Judicial notice – this is a concept in evidence
that refers to the act of the court in taking
cognizance of matters as true or as existing
without the need of the introduction of evidence.
The Authority of the court to accept certain
matters as facts even of no evidence of their
existing has been presented.
ARTICLE 13
Years – 365 days (12 calendar months in Sec 31
chapter 8 Book 1 of the revised Administrative
code)
Months – 30 days
Days – 24 hrs
Nights – Sunset to Sunrise
 PERSONS AND FAMILY
Case: CIR vs. Prime Town Property
SC said that Article 13 has been impliedly
repealed by the revised administrative code.
In National Marketing Corporation vs. Tecson,
SC ruled that a year is equivalent to 365 days
regardless of whether it is a regular year or a leap
year.
However, in 1987, EO 292 or the Administrative
Code of 1987 was enacted. Sec 31 Chapter 8 Book
1. Provides that legal period – “year shall be
understood to be twelve calendar months”
SC further discuss the calendar month is the
month designated in the calendar without regard
to the number of days it may contain.
As mentioned in Article 7 of the new civil code,
when the provisions of subsequent law are
incompatible or inconsistent with those of the
previous law the said law is impliedly
repealed.
ARTICLE 14
**Principle of Generality - means that aliens,
male or female come under our territorial
jurisdiction
Principle of Territoriality – any offence
committed within our territory offends the state.
Exceptions:
 Principles of public international law
(immunities granted to the heads of state,
diplomats)
 Presence of treaty stipulations
ARTICLE 15
Status – in civil law includes personal qualities
and relations, more or less permanent in nature
6|Page
and not ordinarily terminable at his own will,
such as being married or not , or his being
legitimate or illegitimate.
- Sum of total of a person’s rights, duties
and capacitates.
Article 15 is the **Nationality Principle
Capacity to enter into Ordinary Contract
Governed by the national law of the person and
not by the law of the place, where the contract
was entered into. (LEX LOCI CELEBRATIONIS) –
with respect to Legal Capacity
Case: Mercado vs. Tan
It is not for the parties to determine the validity
of their marriage but it is for the court of
competent jurisdiction to declare the marriage
void, otherwise it would be easy to for them to be
scat free from liability.
Capacity to enter into Relations
a. Lex Situs or Lex rei sitae – depends on the
law of the place where the property is
situated. (CAPACITY TO ACQUIRE,
ENCUMBER, ASSIGN, SELL OR DONATE)
b. Depends on the national law of decedent
(CAPACITY TO INHERIT)
c. Depends on the national law of the place
where the marriage was entered into.
(CAPACITY TO GET MARRIED) – Subject to
certain exemptions. – Doctrine of Lex
Loci Celebrationis
ARTICLE 16
**General Rule: Real Property and Personal
Property – subject to the law of the country
where it is situated. (Lex rei sitae)
 PERSONS AND FAMILY
**XPN: Intestate and testamentary succession
(Shall be regulated by the NATIONAL LAW of the
person whose succession is under consideration.)
- Order of succession
- Amount of successional rights
- Intrinsic validity of testamentary
provisions (provision of will)
- Capacity to succeed
For Shares (NEGOTIATED, PERFECTED AND
CONSUMMATED)
- Capital gain tax will be imposed only if
corporate income derives from the
Philippine sources.
Defect on Art 16 Par 2
- If the court of the country where the
property is located would not respect the
decision of our courts
- Possible enforceability and ineffectiveness
Renvoi (referring back)
- Problem arises when there is a doubt as to
whether a reference in our law to a
foreign law
o Reference to the internal law of
the foreign law
o Reference to the whole of the
foreign law including its conflict
rules.
ARTICLE 17
General Rule: Forms, solemnities of contracts,
wills and other public instruments
- Shall be governed by the laws of the
country in which they are executed.
- **Doctrine of Lex Loci Celebrationis as
to extrinsic validity
XPN: (Philippine rule applies)
- Executed before diplomatic consular
officials of Republic of the Philippines in a
7|Page
foreign country. Solemnities established
by the Philippine law shall be observed in
their execution.
- Prohibitory law concerning persons, their
acts or property and those have for their
object public order, public policy and good
customs. (e.g. absolute divorce)
**Principle of Exterritoriality
Even if the act be done abroad, still if executed
before the Philippine diplomatic and consular
officials, the solemnities of Philippines laws shall
be observed.
The theory is that the act is being done within an
extension of Philippine territory.
ARTICLE 18
Rule in case of conflict between the Civil Code and
other laws
- The special laws prevails over Civil Code
- The Civil Code shall be suppletory except if
otherwise provided for under the Civil
Code
II. HARMONIZING CONFLICT OF LAWS
A. TERRRITORIAL PRINCIPLE IN
CRIMINAL LAW (14)
Penal Laws and those of public security and
safety shall be obligatory upon all who live or
sojourn in the Philippines, subject to the
principles of international and treaty
stipulations.
B. STATUS LEGAL CAPACITY(15)
C. PROPERTY(16)
D. WILLS AND SUCCESSION(16)
E. FORMS AND SOLEMNITIES(17)
F. PRIMACY OF LOCAL/DOMESTIC LAW
OVER FOREIGN LAW
G. DOCTRINE OF PROCESSUAL
PRESUMPTION
 PERSONS AND FAMILY
The foreign law, whenever applicable, should
be proved by the proponent thereof,
otherwise, such law shall be presumed to be
exactly the same as the law of the forum.
H. THE PROBLEM OF THE RENVOI
(“referring back”) - Renvoi takes place when
the conflicts rule of the forum makes a
reference to a foreign law, but the foreign law
is found to contain a conflict rule that returns
or refers the matter back to the law of the
forum (Remission).
III. HUMAN RELATIONS AND ABUSE OF
RIGHTS
A. Principle of Abuse of rights
ARTICLE 19
This article stresses:
- Acting with justice
- The giving to everyone his due
- The observance of honesty and good faith
Is reflective of the universally accepted percepts
of “abuse or rights”, one of the most dominant
principles which must be deemed always implied
in any system of law.
It parallels to “the supreme norms of justice
which the law develops” and which are expressed
in three familiar maxims:
- Honeste vivere (to live honorably)
- Alterum non laedere (not to injure
others)
- Jus suum cuique tribuere (to render
every man his due)
Elements of abuse of rights:
- There is a legal right or duty
- Which is exercised in bad faith
8|Page
- For the sole intention of prejudicing or
injuring another
B. Concept of torts or quasi delict1
ARTICLE 20
Whoever by act or omission causes damage to
another, there being fault or negligence, is oblige
to pay for the damage done.
NO ACTION FOR DAMAGES
If someone be damaged, he dies not necessarily
have the right to be indemnified. It is essential
that some right of his impaired.
C. The Doctrine of Damnum Absque Injuria
(Damage without Injury)
ARTICLE 21
Doctrine of Damnum Absque Injuria
A person who exercises his legal right does no
injury. HOWEVER, it cannot be said that a person
exercises a right when he unnecessarily
prejudices another or offends morals or good
customs.
No Moral Damages for breach of promise to
marry. However, implied that if there be moral
seduction as distinguished from criminal
seduction, there MAY BE a grant of moral
damages, possibly under Art 21.
D. Principle of Unjust Enrichment
ARTICLE 22
Nemo cum alterius detriment protest – No
Person should unjustly enrich himself at the
expense of another
Nemo ex alterius incommode debet
lecupletari – No man ought to be made rich out
of another’s injury.
1
fault or negligence, if there is no pre-existing contractual
relation between the parties
 PERSONS AND FAMILY
Accion In Rem Verso – action for recovery of
what has been paid without just cause.
Requisites:
-One party enriched and one party made poorer
-There must be a casual relation between the two
-The enrichment must not be justifiable
-There must not be other way to recover
-The indemnity cannot exceed the loss or
enrichment, whichever is less.
Application:
1. When 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 just or legal
ground.
E. Accion In Rem Verso vs. Solutio Indebiti
In Accion In Rem Verso it is not necessary that
the payment be made by mistake, payment could
have been made knowingly and voluntarily but
nevertheless, there would be recovery of what
has been paid while in Solutio Indebiti, payment
was made by mistake and is an essential
element to maintain the action for recovery.
F. Liability without fault or negligence (Article
23, NCC) correlate with the Doctrine of
Necessity or Doctrine of Incomplete Privilege
vs. Exercise of police power/abatement of
nuisance
The Doctrine of Incomplete Privilege is a
concept is civil law regarding the right of an
owner of a thing and the limitation to this right in
cases of interference. This doctrine has been
codified in Article 432 of the Civil Code of the
9|Page
Philippines. It is also called the rule on "state of
necessity."
The owner of the thing has the right to prohibit
the interference of another with the same, if the
interference is necessary to avert an imminent
danger. The owner may demand from the person
benefited indemnity for the damage to him.
The abatement of a nuisance does not preclude
the right of any person injured to recover
damages for its past existence.
ARTICLE 23
If Cattle damage the crops and dies - Cattle owner
has no liability
If Cattle damage the crops and survives – Cattle
owner has liability
ARTICLE 24
Parens Patriae
-Father or parent of his country
-refers to the sovereign power of the state in
safeguarding the rights of person under disability,
such as the insane and the incompetent.
PD 603 Child and Youth Welfare Code
-Art 63 Financial Aid and Social Services to Needy
Family
-Art 64 Assistance to Widowed or Abandoned
Parent and Her minor Dependents
-Art 65 Criterion for Aid
-Art66 Assistance to Unmarried Mothers and
their Children
ARTICLE 25
Who can bring action in curtailing thoughtless
extravagance?
- Charitable Institution
o Government
o Private
 PERSONS AND FAMILY

Note: A Mayor cannot just take the law into his Test of Unfair Competition
own hands, no matter how noble or sincere his The test of unfair competition is whether certain
motive may be. goods have been intentionally clothed with an
ARTICLE 26 appearance which is likely to deceive the
This article enhances the dignity and personality. ordinary purchasers exercising ordinary care.
Remedies:
- An action for damages ARTICLE 29
- An action for prevention The Criminal liability affects the social order
- Any other relief while the civil liability affects the private rights.
Note: Civil action may be instituted even if no
crime is involved and moral damages may be When you file a criminal case, civil liability is
obtained. always attached to it

Scope: Standards regarding evidence:

-Prying into the privacy if another’s residence
-Meddling with or disturbing the private life or
family relation of another
-intriguing to cause another to be alienated from
his friends
-vexing or humiliating
Criminal - proof beyond reasonable doubt
Civil - preponderance1 of evidence
Note: If the accused be acquitted because of
prescription of the crime, he is released only
from criminal responsibility, not civil liability.

ARTICLE 27 Criminal liability will give rise to civil liability ex

The purpose of this article is to end the pabagsak
or bribery system to perform the person’s duty.
-public servant or employee
-there must be refusal or neglect without just
cause to perform
ARTICLE 28
This provision is necessary in a system of free
enterprise. It is also intended to lay down a
general principle outlawing unfair competition,
both among enterprise and among laborer.
Scope: (Unfair competition in)
-Agricultural enterprise
-Commercial enterprise
-Industrial enterprise
-Labor
10 | P a g e
delicto2 if only the same felonious act or
omission results in damage or injury to another
and is the direct and proximate cause.
Extinction of the penal action does not carry with
it the extinction of civil liability unless the
extinction proceeds from a declaration in a
final judgment that the fact from which the
civil case might arise did not exist.
ARTICLE 30
1
standard comes into play when the plaintiff satisfies the
burden of proof by offering evidence that demonstrates their
claims have a greater than 50% chance to be true.
2
Referring to something that arises out of a fault or wrong
(tort), but not out of a contract.
 PERSONS AND FAMILY
Civil Liability Arising from an Unprosecuted
Criminal Offense –If the fiscal institute criminal
proceedings the civil case (independent) is
suspended, but if the fiscal does not, and then the
civil case continues where mere preponderance
of evidence is sufficient.
ARTICLE 31
Independent civil action – is one that is brought
distinctly and separately from a criminal case
allowed for considerations of public policy,
because the proof needed for civil cases is LESS
than that required for criminal cases; but with the
injunction in general that success in financially
recovering in one case should prevent a recovery
of damages in the other.
ARTICLE 32
Scope:
- Any public officer or employee
- Any private individual even if he be in
good faith. The purpose of this provision is
to eliminate the defense of good faith.
Judges are excluded because it would make him
vulnerable to the whims and caprice of the
accused or the relevant parties. It would also
make all of his errors actionable.
XPN to XPN: judge knowingly renders and unjust
judgment. The liability comes from the fact in
doing something criminal, it could lead to
damages.
ARTICLE 33
The underlying purpose of the principle under
consideration is to allow the citizen to enforce his
rights in a private action brought by him,
regardless of the action of the state attorney.
Fraud - can include estafa
11 | P a g e
Defamation- can include libel
Physical Injury - can include death or the crime of
homicide
ARTICLE 34
Primary Liability – is assessed against the
member of the police who refuses t render aid or
protection
Subsidiary liability – is imposed on the city or
municipality concerned in case of insolvency
Note: Art 34 only applies to city or municipal
police force and not applicable to PNP force of
National Government
ARTICLE 36
Prejudicial question is one which must be decided
first before a criminal action maybe instituted or
may proceed because a decision therein is vital to
the judgment in the criminal case.
In the case People vs Adelo Aragon (L-5930,
Feb 17, 1954) SC defined it as one which arises
in a case, the resolution of which is a logical
antecedent of the issue involved in said case and
the cognizance of which pertains to another
tribunal.
Requisites of PQ:
- The civil case involves facts intimately
related to those upon which the criminal
prosecution would be based
- In the resolution of the issue or issues
raised in the civil actions, the guilt or
innocence of the accused would
necessarily be determined
- Jurisdiction to try said question must be
lodged in anther tribunal
Note: Not all previous questions are prejudicial,
although all prejudicial questions are necessarily
previous.
 PERSONS AND FAMILY

(i) Restrictions on capacity to act

Who can raise the Issue on PQ? ARTICLE 38
-The defendant in a criminal case (and NOT the
prosecution) who can raise the issue of -Minority (below 18)
prejudicial questions. -Insanity or imbecility
-state of being deaf-mute
IV. CIVIL PERSONALITY AND ITS -Prodigality (squandering of money with
EXTINGUISHMENTS morbid desire to prejudice the heirs)
-Civil Interdiction (deprivation by the court of a
A. Juridical capacity and capacity to act person’s right)
ARTICLE 37 Note: when minor enter in a contract, the
Person – any being, natural or artificial, capable contract is voidable until annulled.
of possessing legal rights and obligations.
Types: ARTICLE 39
a. Natural- human beings Modification or Limitation on Capacity to act:
b. Juridical- created by law (e.g. corporation) 1. Family Relations;
2. Insanity;
Juridical capacity 3. Imbecility;
-inherent in every natural person 4. Insolvency;
-fitness to be the subject of legal relations 5. Trusteeship;
-lost/extinguished through death 6. Penalty;
7. Prodigality;
Capacity to act- the power to do acts with legal 8. Age;
effect 9. Alienage;
10. Absence; and
JC (Capacidad juridical) 11. State of being deaf-mute.
-Passive
-Inherent B. Natural persons
-lost through death ARTICLE 40
- can exist without capacity to act (i) beginning of personality
- At conception. (Presumptive personality)
CTA(Capacidad de obrar)
-Active RA 9288 – New born screening act of 2004
-Merely acquired -Shall ensure that every baby born in the
-lost through death and may be restricted by Philippines is offered to undergo NBS and, thus
other causes be spared from heritable conditions that can lead
-Exists always with JC to mental retardation and death undetected and
Complete Civil Capacity – the union of the two untreated.
kinds of capacity (Plena capacidad civil)

12 | P a g e
 PERSONS AND FAMILY
(ii) provisional personality of a conceived
child
ARTICLE 41
Fetus is considered born if alive at the time of the
complete delivery. However if fetus had an intra-
uterine life of less than 7 months, it is not deemed
born if within 24 hrs the fetus dies after complete
delivery.
- Fetus has full personality as to support
- Conceived child through the mother, may
be the recipient of donation but if it is
onerous or should be burdensome,
donation is not valid
(iii) extinguishment of personality
ARTICLE 42
Civil personality – extinguished by death
Civil interdiction – merely restricts, not
extinguishes, capacity to act.
Effect of death determined by:
-law
-contract
-will
Voluntary heir dies before the testator cannot
be represented by his own heirs.
Legal effects of death:
- Right to support ends
- Marriage ends (whether valid or voidable)
- Tenure of public office ends
For the purpose of settling debts , the estate of
the deceased is a person that may continue the
personality of the deceased even after death.
(Limjuco vs Estate of Pedro Fragante, 45 O.G.
No. 9, p. 397)
13 | P a g e
(iv)Presumption on survivorship(Article 43
(NCC) vs. Rule 131, Section 5 (jj) and (kk) of
the Rules of Court);
ARTICLE 43
When two persons perish in the same calamity
and it is not shown who died first, and that it
cannot be inferred, the survivorship is presumed
from the probabilities resulting from strength
and age of sexes according to the ff:
- If both were under the age of 15, the older
is presumed to have survived.
- If both were above the age of 60 the
younger is presumed to have survived
- If one under 15, and other above 60, the
former is presumed to have survived
- IF both over 15 and under 60 and the
sexes be different, the male is presumed to
have survived, if the same sexes, then the
older
- If one under 15 or over 60 and the other
between those ages, the latter is presumed
to have survived.
(v)Presumption of death (Articles 390 and
391 of the New Civil Code vs. Rule 131, Section
3 (w), Rules of Court)
This provision applies when case involves 2 or
more persons who are called to succeed each
other. All other case Apply Rule 131.
ARTICLE 44
Kinds of JP:
-Private JP – Priv Corp, partnerships, foundations
-Public JP- public corp (provice , city) the state
Private Corp- JP exists from the moment the
certificate of incorporation is granted.
 PERSONS AND FAMILY
Juridical personality is not an absolute right of
corporation but a privilege which may be enjoyed
only under such terms as state may deem
necessary.
V. MARRIAGE, ITS REQUISITES AND
CONSEQUENCES
ARTICLE 1
Marriage is a special contract of permanent
union between man and a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of
the family and an inviolable social institution
whose nature, consequence, and incidents are
governed by law and not subject to stipulation,
except that marriage settlements may fix the
property relations during the marriage within the
limits provided by this code.
MARRIAGE is a status, or a relation or an
institution.
MARRIAGE VS ORDINARY CONTRACT:
As a contract:
M- Special contract; Social Institution
O- Merely a contract
Applicable law:
M- Governed by the law on Marriage
O- Governed by the law on contracts
Right to Stipulate:
M- GR: not subject to stipulation; XPN: Property
relations in marriage settlements
O- Generally subject to stipulations
Capacity to contract:
M- Legal capacity required
14 | P a g e
O- Minors may contract through their parents or
guardians n in some instances, by themselves.
Gender requirement:
M- Contracting parties must only be two persons
of opposite gender
O- Contracting parties may be two or more
persons regardless of gender
Dissolution by agreement:
M- Dissolved only by death or annulment, never
by mutual agreement
O- Can be dissolved by mutual agreement among
others.
ARTICLE 2&3
Essential Requisites:
 Legal capacity
 Consent freely given
Formal Requisites:
 Marriage ceremony
 Authority of solemnizing officer
 Valid marriage license
Legal capacity
- Parties must have the necessary age or
consent from parents in certain cases
- There must be no impediment caused by
prior existing marriage or by certain
relationships (affinity/consanguinity)
Consent
- Refers to the consent of the contracting
parties
- Consent should be voluntary act
- Vitiated consent is voidable (valid until
annulled)
 PERSONS AND FAMILY

- Absolutely without consent or parties did - Male and female must be 18 yrs or
not intend to bound (in case of Joke, stage upwards
or movie play) - the marriage is void. - And must not under any impediments
mentioned in Articles 37 & 38
Authority of solemnizing officer
- in civil code if the person performing the
marriage had no authority the marriage is
void
- In the family code even if the solemnizing
offices is not authorized, the marriage
would be valid if either both parties
believe in good faith in his authority to
solemnize marriage.

Marriage ceremony
- Must be made in the presence of not less
than two witnesses of legal age.

NOTE: Absence of any of the formal requisites –

the marriage is VOID AB INITION, unless one or
both the parties are in good faith.

ARTICLE 4
Absence of any of the essential and formal
requisites:
GR- Viod Ab Initio
XPN: Either or both parties believed in good faith
that the solemnizing officer has the proper
authority.

Defect in any f the essential requisites:

- Voidable as provided n Article 45

Irregularity in the formal requisites:

- Valid, but the party or parties responsible
for the irregularity shall be civilly,
criminally and administratively liable.

ARTICLE 5

15 | P a g e