10068058tolentino reviewer art. 1 - 13.docx

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Persons and Family Relations Law

Civil Code of the Philippines by Arturo M. Tolentino (Chapter Summary)

CHAPTER I: EFFECT AND APPLICATIONS OF LAWS

Article 1 This act shall be known as the“Civil Code of the Philippines.”

I. Civil Code defined

Civil Code – 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.

II. Philippine Civil Code

For a long time, the civil code in force in the Philippines was the Civil Code of Spain 1889 by Royal

Decree of July 31, 1889 published in the Gaceta de Manila on November 17, 1889, and took effect on

December 7, 1889.

Purpose of Codifying a Philippine Civil Code

To make the laws conform “with the customs, traditions, and idiosyncracies of the Filipino people

and with the modern trends in legislation and the progressive principles of law.”

III. Sources of Civil Code

The following are the sources of the Present Civil Code

Civil Code of 1889 – embodied Ley de Bases, Common Law of Castilla, French C ivil Code.

Codes, laws, and juridical decisions, as well as the works of jurists of other countries

Doctrines laid down by the Supreme Court of the Philippines

Filipino Customs and Traditions

Philippine Statutes

Code Commission itself

IV. Incorporation of Customs

The customs which the Code Commission introduced into the New Civil Code are mostly infamily

relations and succession.

V. Arrangement of Code

The general arrangement of the New Civil Code is the same as that of the Civil Code of 1889 .

There are 4 Books:

Book I - Persons

Book II – Property, Ownership and Its modifications

Book III – Different Modes of Acquiring Ownership

Book IV – Obligations and Contracts

Some changes have been introduced:

Property relations of husband and wife from Book IV to Book I

Prescription from Book IV to Book III

New Subjects have been placed in the Book to which they correspond:

Human Relations in Preliminary Title

Care and Education of Children in Book I

Nuisance in Book II

Intellectual Creation in Book III

Natural Obligations, Trust, and Damages in Book IV

VI. New Rights Created

The New Code creates numerous new rights and causes of action. E.g.

Acts Contrary to Morals (Article 21)

Civil Action after Acquittal on Reasonable Doubt (Article 29)

Civil Action for Obstruction of Civil Liberty (Article 32)

Rights of Natural Children by Legal Fiction (Article 89)

Wife’s rights in case of maladministration of conjugal property by the husband (Article 167)

VII. Subjects Omitted

The New Code has omitted some subjects which were regulated in the O ld Code these are: Dowry

Censos

Use

Habitation

VIII. Arrangement Criticized

The general adherence of the new Civil Code to the arrangement of the old Code has been criticized

as unscientific.

The report of the special committee of the Philippine Bar Association assigned to study the new Code,

under the chairmanship of Justice Jose B.L. Reyes, had this to say:

The new Code’s faulty distribution resulted, inter alia, in placing the notion of the various vices

of consent (error, fraud, duress, undue influence) in Book IV on Contracts, as if they

were exclusively found in contracts, when they pervade the entire field of the Civil Law andshould therefore be dealt with in the general provisions.

IX. New Solutions Presented

The new Code contains many reforms in which the solutions given are different from or contrary to

those found in the Old Code.

X. Language of the Code

In its interpretation, English text shall prevail over any translation

The form is English; the substance is Spanish and Filipino.

Translated words should be understood, not in the light of the Anglo-American law but in that of the

Spanish-Philippine law as embodied in the New C ivil Code.

Article 2 Laws shall take effect after fifteen days following the completion of their publication in the

Official Gazette, unless it is otherwise provided. This Code shall take effect one year after

such publication.

.

I. Effectivity of the Code

The New Civil Code became effective on August 30, 1950

II. Effectivity of Laws

Where the statute provides that is shall be effective upon approval, no publications is necessary

before it becomes effective.

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

I. Presumption of Knowledge of Law

Once the law has been p romulgated and has taken effect, it is duty of everyone to know it.

Compliance therewith becomes unavoidable, and nobody can escape its effects by alleging, in good

faith or in bad faith, that h e does not know its provisions



II. Reasons for Article

Logical Consequences of the Conclusive Presumption of Knowledge of the Law:

If laws will not be binding until they are actually known, then social life will be impossible,

because most laws cannot be enforced due to their being unknown to many.

It is absurd to absolve those who do not know the law and increase the obligations of those who

know it.

It is almost impossible to prove the contrary, when a person claims ignorance of the law.

In our conscience, we carry norms of right and wrong, and a sense of duty, so that our reason

indicates many times what we have to do; and in more complicated juridical relations, there are

lawyers who should be consulted.

III. What Laws Covered

The laws referred to by this article are those of the Philippines. There is no conclusive presumption

of knowledge of foreign laws.

IV. No Exceptions Admitted

No Exceptions are admitted, the rule is based on public interest and is designed precisely to avoid

abuse through allegation that the law has not come to the knowledge of a party.

V. Irrevocability of Acts

If by mistake or ignorance of law, a person does an act which prejudices himself, and the injury

cannot be remedied without impairing another’s rights, the mistake cannot be corrected to the

prejudice of the latter.

E.g. A School Teacher who resigned his position in the public school system upon marriage,

pursuant to a school regulation that marriage was equivalent to resignation, cannot rescind such

resignation upon learning that a law had already been passed prior to his marriage nullifying the

school regulation.

VI. Mistake of Fact

Ignorance of fact (ignorantia facti) may excuse a party from the legal consequences of his conduct;

but not ignorance of law, for ignorantia juris neminem excusat .

VII. Difficult Questions of Law

Mistake as to difficult legal questions has been given the same effect as a mistake of fact.

VIII. Mistakes of Lawyer

It has thus been held that a lawyer cannot be disbarred for an honest mistake or error of law.

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

I. Concept of Retroactive Law

A Retroactive Law is one intended to affect transactions which occurred, or rights which accrued,

before it became operative, and which ascribes to them effects not inherent in their nature, in view

of the law in force at the time of their occurrence.

II. Reasons for Article

This article is necessarily related to the rule in Article 3. Hence, a law that has no t yet become

effective cannot be considered as conclusively known by people.

III. Application of Article

All statutes are to be construed as having only a prospective operation, unless the purpose and

intention of the legislature to give them a retrospective effect is expressly declared or is necessarilyimplied from the language used. In every case of doubt, the doubt must be resolved against the

retrospective effect.

IV. Exceptions to Rule

Statutes can be given retroactive effect in the following cases:

Law itself so expressly provides

o The presumption of law is that a statute is intended to have only prospective application; the

intention to give a statute retroactive effect must be unequivocally expressed or necessarily

implied. In case of doubt, doubt must be resolved against retroactivity.

Remedial Statutes

o Remedial Statutes are those which refer to the method of enforcing rights or obtaining redress

of their invasion. It may have a retroactive effect, so long as it does not affect or change vestedrights.

Curative Statutes

o Curative Statutes are those which undertake to cure errors and irregularities by reason of some

statutory disability or the failure to comply with some technical requirement.

o They operate on conditions already existing, and are necessarily retroactive in application

Laws interpreting others

o Similar to curative statutes are those intended to clarify doubts or interpret an existing law.

Laws creating new rights

o If a right be declared for the first time by a new law it shall take effect from the time of such

declaration, even though it has arisen from acts subject to the former laws, provided that

it does not prejudice another acquired right of th e same origin.

V. Unconstitutional Provisions

There are two exceptions to retroactivity of statutes:

Ex Post Fact Laws

When the retroactive effect of the statute will constitute an impairment of the obligation of

contract

Article 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when

the law itself authorizes their validity.

I. Mandatory or Directory Laws

In determining the peculiarity between Mandatory and Directory Laws the prime object is to

ascertain the legislative intention.

Mandatory Laws are statutory provisions which relate to matters of substance, affect substantial

rights and are the very essence of the thing required to be done.

Violation of a Mandatory or Prohibitory Statute renders the act illegal and void.

Directory Laws are statutory provisions which are not material, do not affect any substantial right,

and do not relate to the essence of the thing to be done, so compliance is a matter of convenience

rather than substance.

Violations of a Directory, Permissive, or Suppletory Laws are not nullified by this article.

II. When Law Authorizes Validity

Manresa enumerates three cases which may fall under this exception:

Violation does not refer to an essential matter; the law considers the nullity maybe more

advantageous than validity.

Law may make the validity of the act depend u pon the consent of the part y directly interested in

the nullity of such act.

Law may declare the nullity of an act, but at the same time recognize its effects as legally existing.



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.

I. Elements of Right

Every right has three elements:

Subjects

o There are two kinds of subjects:

1. Active Subject – entitled to demand the enforcement of right

2. Passive Subject – duty-bound to suffer its enforcement

Rights of the Active Subject

1. Personal Rights – imposed upon certain determinate individuals only

2. Real Rights – all persons in general; indeterminate individuals

Object

Efficient Cause

The subjects of rights are persons; rights exist only in favor of persons.

II. Kinds of Rights

Rights may be classified into:

Political refers to the participation of persons in the government of the state

Civil includes all others.

o Civil Rights may be further classified into:

1. Rights of Personality – sometimes called Human Rights. They are intended to protect the

human personality in its existence, integrity, and development, in its physical, intellectual,

and moral aspects.

2. Family Rights – all the rights of a person as a member of a family

3. Patrimonial Rights – these have property for their object.

a. There are two Kinds:

i. Real Rights - ownership, mortgage

ii. Personal Rights – right to collect a debt

The rights of personality and family rights are inherent in man, regardless of property.

III. Renunciation of Waiver

Waiver – relinquishment of a known right with both knowledge of its existence and an intention to

relinquish it.

Right must exist at the time of the waiver; there must be actual or constructive knowledge of suchexistence.

Voluntary Choice is the essence of waiver.

IV. Express or Implied

A waiver may be express or implied.

Implied waiver, when from the acts or conduct of a party the intention to relinquish a right may be

reasonably inferred.

Waiver of a right may also be implied from a failure or neglect to assert the right at the proper time

V. Requirements of Waiver

Requisites of a Waiver:

Presence of a Right

Capacity to make the renunciation

Renunciation made clear and in an unequivocal manner

VI. Scope of Waiver

The doctrine of waiver is generally applicable to all rights and privileges to which a person is legally

entitled.

It is competent for a person to waive a right guaranteed by the Constitution, and to consent to

action which would be invalid if taken against his will.

VII. Obligations

Obligations cannot be renounced. But a person may exempt himself from an obligation which is

inherent in a right, upon the renunciation of such right.

VIII. Real Rights

According to Valverde, renunciation of a personal right requires consent of the debtor

While renunciation of a real right is unilateral and depends upon the exclusive will of the owner of

the right. Effects flow from such renunciation:

If right renounced is a real right distinct from ownership, the right is merged in the owner of the

property.

If there are various holders of a real right, such as co-ownership, renunciation by one of his rights

will proportionately increase the shares of the others.

If full ownership is renounced, the thing become res nullius and may be acquired by occupation.

IX. Prohibited Waiver

Laws cannot be renounced, although the rights arising therefrom may be renounced.

Public Interest is violated by a waiver of rights created by laws of general and mandatory character.

Privileges granted to some persons by reason of their incapacity, are likewise of public order.

There can be no waiver of rights if it will prejudice third persons. However, if no right is injured, even

if they suffer actual damage by the renunciation, the renunciation is valid.

Article 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 of the Constitution.

I. Reason for Article

Since laws are promulgated by the competent authority of the Stat e, the can cease to have effect

only through the will of the State; the statute may lapse by its own terms, or it maybe repealed by

the legislative department, or declared unconstitutional by the judicial branch

II. Lapse of Laws

There are laws which, without any repeal, cease to have effect because they lapse by their own

terms.

Without express provision, the intent of the law may indicate that its effectivity shall be for a limited

period. E.g. Emergency Powers Act (Com. Act No. 689, as amended by Rep. Act No.66)



III. Repeal of Laws

There are two kinds of repeal of a law:

Express or Declared Repeal

Implied or Tacit Repeal – In case a conflict accrued between an old and new law, so that

observance of one excludes the other, conflict must be resolved in favor of the later law.

o There are many laws enacted by the legislative body containing a final article providing that “all

previous laws inconsistent with the present law are hereby repealed.”

o Implied repeals are not to be favored, because they rest only on the p resumption that because

the old and new laws are incompatible with each other, there is an intention to repeal the o ld.

o If both laws can by reasonable construction stand together, both will be sustained.o Requisites for Implied Repeal:

Laws cover the same subject matter Latter is repugnant to the earlier

IV. Rule Applied

In all cases where two statutes co ver, in whole or in part, the same matter, but they are not

absolutely irreconcilable, the duty of the court – no purpose to repeal being clearly indicated or

expressed – is, if possible, to give effect to both.

V. General and Special laws

A General Law in conflict with the special act or provision, special must be taken as intended to

constitute an exception to the general act or provision.

A subsequent general statute will not be held to repeal a prior special one, unless there is a clear and

necessary conflict between the two.

VI. Effect of Codification

A general law does not tacitly repeal a special law, unless the intention of the legislature to make

repeal is clearly deduced from the object or the spirit of the later law.

Where a statute purports to cover the whole subject-matter, it supersedes former laws on the same

subject matter.

VII. Effect of Repeal of Law

The effect of a repealing act must generally be governed by the rules on retroactivity of laws.

Repeal of a Penal Law during the pendency of a criminal prosecution under it, has the effect of

depriving the court of jurisdiction with the case, which must be dismissed.

VIII. Repeal of Repealing Law

IX. Determination of Constitutionality

The criterion for determining the validity of statute must be sought in the Constitution itself.

Judicial power cannot be used to declare a statute void simply because it violates the spirit of ourinstitutions, or impairs any of those rights which it is the object of a free government to protect, or

because the court considers the statute to be wrong and unjust.

X. Executive Orders and Regulations

Regulations must be in harmony with provisions of the law, and for the sole purpose of carrying into

effect its general provisions.

Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the

legal system of the Philippines.

I. Decisions not Source of Law Jurisprudence, in our system of government, cannot be considered as an independent source of law;

it cannot create law.

II. Role of Jurisprudence

Courts can formulate and declare the law as applied concretely to the case before him.

Double Function of Courts:

Fill the deficiencies of legislation and provide a rule for the facts of a given case for which there is

neither positive provision of law nor established custom.

Adapt and adjust rigid and inflexible provisions of law.

III. Doctrine of Stare Decisis

The Doctrine of Stare Decisis enjoins adherence to juridical precedents.

It requires courts in a country to follow the rule established in a decision of the Supreme Court.

The Doctrine is flexible, courts may depart from it.

Stare Decisis is a principle of policy and not a mechanical formula. It does not mean blind adherence

to precedents.

Stare Decisis should not apply when there is conflict between the law and precedent.

Article 9. No judge or court shall decline to render judgment by reason of the silence, obscurity

or insufficiency of the laws.

I. Applicability of Article

This article does not apply to criminal prosecutions, because when there is no law punishing an act,

the case must be dismissed.

II. Duty of Court to Decide

Not knowing the rules applicable to a certain matter, and where to find the law relative to the case

are not reason for dismissing the case without deciding the issues.

III. Obscurity or Deficiency of Law

When Law is vague or obscure, the court should clarify it in the light of rules of statutor y

construction; it silent or insufficient, the court should fill the deficiency by resorting to customs or

general principles of law.

IV. Unjust Laws

Court cannot adopt a policy different from that of law.

Judge cannot refuse to apply a law just because he considers it unjust.

If the law is clear, it must be applied.

V. Rules Suppletory to Law

There is not express provision in the present code with respect to suppletory rules in case of

deficiency in the law.

In spite of this, suppletory rules must be considered existing.

Revive when expressedExpressed

Repealing Law (2)

Repealing LawPrior Law

ReviveImplied



VI. Concept of Customs

Custom – juridical rule which results from a constant and continued uniform practice by members of

a social community, with respect to a particular state of facts, and observed with a conviction that

is juridically obligatory.

In order that custom may have the fo rce of suppletory rule, it must have the following requisites:

Plurality of Acts

Uniformity or Identity of Acts

General Practice by great mass of the social group

Continued performance of these acts for a long period of time General conviction that the practice corresponds to a juridical necessity or that it is obligatory

Practice must not be contrary to law, morals or public order.

VII. Custom distinguished from Law

CUSTOM LAW

ORIGIN Comes from society Comes from governmental

power of the state

FORM Tacit Expressed, manifested in solemn

and official form

Unwritten Law Written Law

Spontaneous Conscious Creation

VIII. What Custom Applied Domicile of the parties applies over the location of the court.

When parties have separate domicile, the custom of the place for the performance or

consummation of the juridical act shall apply.

IX. General Principles of Law

Valverde and Sanchez Roman “General principles are universal juridical standard dictated by correct

reason; or those principles of justice b eyond the variability and uncertainty of facts, those high

standards which serves as a foundation of positive law, those rules accepted by juri-consults which

constitute real axioms for all those who intervene in juridical life, and which form a law superior to

that which enacted.”

It is “the principles which serve as the basis for positive law in each country.” – Buron, DeDiego,

Castan de Buen

Limitation in the Application of the General Principles of Law :

It should not be in conflict with the general or particular provision of the law. Court should firstlook into the general principles underlying the positive law of the land; and when these have

exhausted, then it should proceed to apply the rules that it may deem most reasonable and just,

provided that they do not violate the fundamental concepts of the law, custom, or established

doctrines.

The General Principles of Law is admissible, when there is no law applicable to the point in

controversy, without showing a law or decision which sanctions it.

Article 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking

body intended right and justice to prevail.

I. Applicability of Article

It is applied only in case of doubt, an d when all other rules of interpretation fail.

When law is clear, it must be applied even if it does not conform to his concept of right and justice.

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

I. Application of Rule

No man or set of men can c reate custom for their benefit and give it force paramount to that of an

express law.

Article 12. A custom must be proved as a fact, according to the rules of evidence.

I. Non-existence of Custom When the alleged custom or usage is not known to those who, from business connections, have the

best means of knowing it, this ignorance is, in some sense, positive evidence of its non-existence.

Article 13. When the laws speak of years, months, days, or nights, it shall be understood that the years

are of three hundred sixty five days each; months, of thirty days; days, of twenty-four hours;

and nights from sunset to sunrise. I f 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.

I. Meaning of “Week”

It means a period of seven consecutive days without regard to the day of the week on whichit

begins.

II. Meaning of “Month”

Strictly in a legal sense, it is a period composed of thirty days.

III. Computation of Time

Present article of the Code does not contain the exception referring to Sundays and legal holidays.

When the act and the period are contractual, the exception referring to Sunday an holidays does not

apply, act must be done on the last day, even if the latter should be Sunday or a holiday.

IV. Date Specified

There is no necessity for computation when the date is fixed; that is, when the act is to take place at

a specified future date.

10068058tolentino reviewer art. 1 - 13.docx

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