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com/notes-on-philippine-civil-law/ commentaries-and-jurisprudence-on-the-civil-code-by-dr-arturo-m-tolentino/preliminary-title/ THE CIVIL CODE FIRST CONGRESS OF THE REPUBLIC OF THE PHILIPPINES Fourth Session [REPUBLIC ACT NO. 386] AN ACT TO ORDAIN AND INSTITUTE THE CIVIL CODE OF THE PHILIPPINES Be it enacted by the Senate and the House of Representatives of the Philippines in Congress assembled: PRELIMINARY TITLE Chapter 1 EFFECT AND APPLICATION OF LAWS

Article 1.

This act shall be known as the Civil Code of the Philippines. (n)

Civil Code defined. A CIVIL CODE is a collection of laws which regulate private relations - of the members of civil society, determining their respective rights and obligations, with reference to persons, things, and civil acts (1 Tolentino 11 citing 9 Fabres 10).

Article 2.

Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette,
(qualification)

UNLESS it is OTHERWISE provided.


(second sentence, Effectivity of the Civil Code)

This Code shall take effect one year after such publication.
Effectivity of the Code. The new Civil Code became effective on August 30, 1950. Effectivity of Laws. The provisions of the Code | on the date when laws become effective | apply only when the particular statute | does NOT provide its own date of effectivity. Thus, where the statute provides | that it shall be effective upon approval, no publication is necessary | before it becomes effective (1 Tolentino 18 citing Askay v. Cosalan, 46 Phil. 179). G.R. No. L-25888 (1968) Tidewater Oil Company vs. Adelaida C. Dionisio In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary | in those cases where the legislation itself | does NOT provide for its effectivity datefor then the date of publication | is material for determining its date of effectivity, which is the fifteenth day following its publicationbut NOT when the law itself | provides for the date when it goes into effect.
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486;

Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.

Article 3.

Ignorance of the law excuses no one | from compliance therewith.


[Ignorantia legis non excusat]

Presumption of Knowledge of Law. Everyone is conclusively presumed to know the law. This presumption is very far from reality; but it has been established | because of the obligatory force of law. Once the law has been promulgated | and has taken effect, it is the duty of everyone to know it. Compliance with it becomes unaVOIDable, and nobody can escape its effects by alleging, in good faith or in bad faith, that he does NOT know its provisions (1 Tolentino 18 citing 1 Oyuelos 2; 1 Nunez 97; Fernandez, p. 67; Sentencia of Nov. 23, 1912). Reasons for Article. Evasion of the law would be facilitated, and the administration of justice defeated, if persons could successfully plead ignorance of the law | to escape the legal consequences of their acts, or to excuse non-performance of their legal duties. Actual ignorance of the law would thus afford immunity from | punishment for crimes | and from liability for violations of personal and property rights of others. The rule in this article is, therefore, dictated NOT only by expediency | but also by necessity (ibid., citing Zulueta vs. Zulueta, 1 Phil. 254). The following reasons have thus been advanced for this article, which is a logical consequence of the conclusive presumption of knowledge of the law:

(1) 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.

(2) It is absurd to absolve those who do NOT know the law | and increase the obligations of
those who know it. (3) It is almost impossible to prove the contrary, when a person claims ignorance of the law.

(4) 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 (1 Tolentino 18 citing 1 Valverde 131-133). What Laws Covered. Local laws only, foreign laws NOT covered. And with respect to local laws, the article is limited to mandatory and prohibitory laws. It does NOT include those which are merely permissive (id., citing 1 Manresa 56). Application of Rule. The ignorance suffered by contracting parties | because of their ignorance of the law | must be born by them, because ignorance of the law | does NOT favor or prejudice anyone, nor justify the amendment or annulment of a contract (Sentencias of Feb. 20, 1861, May 9, 1867, and December 8, 1867; Luna vs. Linatoc, 74 Phil. 15).

No EXCEPTIONS Admitted. Some writers, as Toullier and Goyena, believe that when for some reason, as flood, fire, war, etc., the official newspaper does NOT reach some region, and the interruption of communication is clearly shown, the article should NOT be applied | because it would be unjust to do so. However, 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 (1 Tolentino 20 citing 1 Manresa 55) Irrevocability of Acts. If, through mistake or ignorance of law, a person does an act which prejudices himself, and the injury CANNOT be remedied | without impairing anothers rights, the mistake CANNOT be corrected to the prejudice of the latter (1 Tolentino 20). Mistake of Fact. Ignorance may either be | of law | or 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. Republic Act (R.A.) No. 394 recognized validity of Mohammedan divorces. Difficult Questions of Law. In specific instances provided by law, mistake as to difficult legal questions | has been given the same effect | as a mistake of fact. The following articles of the Code may be cited as examples: ART. 526. He is deemed a possessor in good faith | who is NOT aware that there exists in his title or mode of acquisition | any flaw which invalidates it. He is deemed a possessor in bad faith | who possesses in any case | contrary to the foregoing. Mistake upon a doubtful or difficult question of law | may be the basis of good faith. ART. 1334. Mutual error | as to the legal effect of an agreement | when the real purpose of the parties is frustrated, may vitiate consent. ART. 2154. If something is received | when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. ART. 2155. Payment by reason of a mistake | in the construction of a doubtful or difficult question of law | may come within the scope of the preceding article. Same; Mistake of Lawyer. No man is supposed to know any branch of the law perfectly, particularly when called upon to act at once without time for reflection. The knowledge which we use the utmost industry to acquire, is often forgotten at the moment when most needed. The science of law is a most extensive and difficult one. Cases frequently occur when learned men differ, after the greatest pains is taken to arrive at a correct result. No one, therefore, would dare to pursue the profession of law, if he were held responsible for the consequences of a casual failure of his memory, or a mistaken

course of reasoning. It has thus been held that a lawyer CANNOT be disbarred for an honest mistake or error of law (In re Filart, 40 Phil 205)

Article 4.

Laws shall have no retroactive effect,

(EXCEPTION) UNLESS the contrary is provided. 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. It is one which changes or injuriously affects a present right | by going behind it | and giving efficacy to anterior circumstances t defeat it, which effect they did NOT have when the right accrued. It creates a new obligation | and imposes a new duty, or attaches a new liability, in respect to transactions or considerations | already past (1 Tolentino 22, citing 50 Am. Jur. 492-493). 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 necessarily implied from the language used. In every case of doubt, the doubt must be resolved against the retrospective effect (1 Tolentino 23 citing Montilla vs. Agustinian Corporation, 24 Phil. 220). EXCEPTIONS to Rule. -Statutes can have retroactive effect in the following cases: (1) when the law itself so expressly provides; (2) in case of remedial statutes; (3) in case of curative statutes; (4) in case of laws interpreting others, and (5) in case of laws creating new rights. Same; Same; Unconstitutional Provisions. The rule that a statute will be given retroactive effect if it so expressly provides, has two EXCEPTIONS with a constitutional basis: (1) when the retroactivity of a penal statute | will make it an ex post facto law; and (2) when the retroactive effect of the statute| will constitute an impairment of the obligation of contract. In these two cases, the provision giving the statute a retroactive effect | will be held inoperative, because it would violate the Constitution. Same; Same; Penal Statutes. -Penal laws shall have a retroactive effect | insofar as they favor the accused | who is NOT a habitual criminal, even though at the time of the enactment of such laws | final sentence has already been rendered (Art. 22, Revised Penal Code). Same; Remedial Statutes. Remedial statutes are those | which refer to the method of enforcing rights | or of obtaining redress of their invasion. It is a well-established doctrine that | the procedure of the court may be changed | at any time by law | to become effective at once, so long as it does NOT affect or change | vested rights (1 Tolentino 24, citing Aguillon vs. Director of Lands, 17 Phil. 506; Laurel vs. Misa, 76 Phil. 372). A remedial statute, therefore, may be made applicable to cases pending at the time of its enactment

(Enrile vs. Court of First Instance, 36 Phil. 574; Hosana vs. Diomano, 56 Phil. 741; Guevarra vs. Laico, 64 Phil. 144). Such a law is made to insure the better administration of justice, and its immediate enforcement is of public interest (1 Colin & Capitant 125). Thus, with respect to remedies, forms of proceedings, and limitation of action, legislation may be retroactive in character. [i.e.] The period of extinctive prescription may be shortened | even in relation to actions | the rights to which has already accrued. Rules of evidence may be changed at any time, and the changes are applicable to existing causes of action and pending cases. Same; Curative Statutes. Curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which OTHERWISE would NOT produce their intended consequences by reason of some statutory disability or the failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Thus, it has been held that a judgment which was correct when rendered, holding that a particular tax law was unconstitutional, may be reversed on account of an amendment enacted pending the appeal, by which the defect in the law is cured. Nevertheless, there are limitations on the extent of retroactivity of curative laws. Obviously, they CANNOT violate rights of third persons. They CANNOT affect a judgment that has become final. Same; Interpreting Statutes. Similar to curative statutes are those intended to clarify doubts or interpret an existing law. The principle of retroactivity of such statutes, which we submit is applicable in this jurisdiction, is stated by the civil code of Chile (article 9) in the following manner: Laws which merely interpret the meaning of other laws are considered as incorporated in the latter; but they shall NOT affect judicial decisions which have become final in the meantime. An identical provision is found in the code of Colombia (article 14). Same; Laws Creating New Rights. The principle that a new law shall NOT have retroactive effect only governs rights arising from acts done under the rule of the former law; but 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 the same origin (Bona vs. Briones, 38 Phil. 276; Bustamante, et al. vs. Cayas, 98 Phil. 107; Ilegay, et al. vs. Ilegay (S.C.), 49 O.G. 4903) This rule is expressly contained in the transitory provisions of the Civil Code.

Article 5.

Acts executed against the provisions of mandatory or prohibitory laws | shall be VOID,

(EXCEPTION) EXCEPT when the law itself authorizes their validity. (4a) When Law Authorizes Validity. Law here refers to the juridical order in its totality. It is possible that the legislator has prohibited the performance of a particular act, and has even provided a penalty, without destroying its validity in case it is done in spite of the prohibition. Such character of the prohibitory law may be inferred from various circumstances, one of which is that the nullity of the act | may bring about harmful consequences | which the law does NOT sanction (1 Tolentino 27, citing 5 Von Tuhr 6-8). Manresa enumerates three cases | which may fall under this EXCEPTION:

(1) Where the violation does NOT refer to an essential matter, the law considers that nullity may be more disadvantageous than validity. For instance, where a marriage is solemnized without one or more formal requirements. The marriage is valid, although the parties who acted contrary to what is required by law may become criminally liable. (2) This law may make the validity of the act depend upon the consent of the party directly interested in the nullity of such act. Thus, marriages annullable because of force or fraud may be validated by the injured party by freely cohabiting with the party guilty of force or fraud after the force has ceased or the fraud is discovered. (3) The law may declare the nullity of an act, but at the same time recognize its effects as legally existing/ For example, when a marriage is annulled, the children born before the annulment are considered legitimate (ibid., 1 Manresa 64-65).

Article 6.
(EXCEPTIONS)

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.
Elements of Right. Every right has three elements: [1] the subjects, [2] the object, and [3] the efficient cause. The subjects of rights are persons; rights exist only in favor of persons. There are two kinds of subjects: (1) the active subject, who is entitled to demand the enforcement of the right, and (2) the passive subject, who is duty-bound to suffer its enforcement. The passive subject is an indeterminate person in what are known as personal rights, and indeterminate (or the whole world) in what are known as real rights. Things and services constitute the object of rights. They are such things and services which are intended for the satisfaction of human wants, physical or spiritual. The efficient cause is the fact that gives rise to the legal relation. It may spring from the will of man or independently of such will; fortuitous event is independent of such will. Kinds of Rights. -Rights may be classified into political and civil; the former [political] include those referring to the participation of persons in the government of the State, while the latter [civil] include all others. Civil rights may be further classified into the following: (1) The rights of personality. They are sometimes called human rights, and arise from the fact of being a man. These include all rights intended to protect the human personality in its existence, integrity, and development, in its physical, intellectual, and moral aspects. Examples: the right to life, to physical security, to honor, and to individual liberty; the right to teach and to learn freely; the right to write and to speak; the right to

work, etc. These rights increase in number as humanity progresses, and as the sphere of social solidarity expands. (2) Family rights. These include all the rights of a person as a member of a family. (3) Patrimonial rights. These have property for their object. They tend to the economic satisfaction of men, and are measurable pecuniarily. They are of two kinds: real rights, such as ownership, mortgage, etc., and personal rights, such as the right to collect a debt (1 Salvat 35; 1 Colin & Capitant 246-248) Renunciation or Waiver. Waiver is defined as the relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. The right, benefit, or advantage must exist at the time of waiver, there must be actual or constructive knowledge of such existence; and there must be an intention to relinquish it. Voluntary choice is the essence of waiver. Same; Express or Implied. -A waiver may be express or implied. There is implied waiver, when from the acts or conduct of a party the intention to relinquish a right may be reasonably inferred. Same; Reason for Article. - A person can renounce | what has been established in his favor | or for his benefit, because he prejudices nobody thereby; if he suffers some loss, he alone is to blame. But the renunciation must NOT prejudice the rights of others | who have NOT intervened | in such renunciation; much less can it impair | public order or interest, because these are superior to the individual will (1 Tolentino 30, citing 1 Oyuelos 15-16). Same; Requirements of Waiver. (1) He must actually have the right | which he renounces. (2) He must have the capacity | to make the renunciation. (3) Renunciation must be made | in a clear and unequivocal manner. The formality required by law for such renunciation, if there is any, should be followed; if no particular formality is required, the renunciation may even be tacit, provided the intent to renounce should be clearly established. Same; Same; Obligations. Generally, 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. Same; Same; Real Rights. According to Valverde, while the renunciation of a personal right requires the consent of the debtor (as in case of remission or condonation), the renunciation of a real right is unilateral and depends upon the exclusive will of the owner of the right. Effect of renunciation: (1) If the right renounced is a real right distinct from ownership, such as usufruct, easement or mortgage, it is obvious that the right is merged | in the owner of the property; (2) If on the same thing | there are various holders of a real right, such as in co-ownership, the renunciation by one of his rights | will proportionately increase the shares of the others; (3) If the full ownership is renounced, the thing becomes res nullius | and may be acquired by occupation (1 Tolentino 31, citing Valverde 262-264). Same; Same; Prohibited Waiver. Laws CANNOT be renounced, although the rights arising therefrom may be renounced. And the right itself CANNOT be waived, if such waiver is contrary to public interest or public order, to morals or good customs, or to the rights of a third person.

Article 7.

Laws are repealed | only by subsequent ones,

and their violation or non-observance


(obligatory force)

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.
(obligatory force, Doctrine of Supremacy of the Constitution)

Administrative or executive acts, orders and regulations shall be valid | only when they are NOT contrary to the laws | or the Constitution.
Reason for Article. Only the State can abrogate its own acts. Hence, as long as a law remains in the statute books, its legal force and effect subsists, notwithstanding any practice or usage to the contrary. Lapse of Laws. -There are laws which, without any repeal, cease to have effect | because they lapse by their own terms. A law may expressly provide that | it shall be effective only for a fixed period. Examples: Rental Law (Com. Act No 689, as amended by Rep. Act No. 66) Emergency Powers Act (Com. Act No. 671) see Rodriguez vs. The National Treasurer, 84 Phil. 724 Repeal of Laws. (1) Express or declared repeal, contained in a special provision of a subsequent law, and (2) implied or tacit repeal, when provisions of the subsequent law are incompatible or inconsistent with those of an earlier law. [STATUTORY CONSTRUCTION] Same; Implied Repeal. - From the moment there is conflict | between and old and a new law, the conflict must be resolved in favor of the later law. This implied repeal | of an earlier law | takes place | without any special declaration | in the subsequent law. Same; Same; NOT Favored. Implied repeals are NOT to be favored, because they rest only on the presumption that | because the old and the new laws are incompatible with each other, there is an intention to repeal the old. There must be a plain, unaVOIDable and irreconcilable repugnancy | between the two; if both laws can | by reasonable construction | stand together, both will be sustained (Lichauco vs. Apostol, 44 Phil. 138; Compania General vs. Collector of Customs, 46 Phil. ) Same; Same; Requisites. (1) the laws cover the same subject matter, and (2) the latter is repugnant to the earlier. Same; Same; Rule Applied. But in all cases where two statutes cover, 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

(Lichauco vs. Apostol, 44 Phil. 138; Compania General vs. Collector of Customs, 46 Phil. 8). Same; Same; General and Special Laws. 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. Same; Same; Effect of Codification. The Civil Code lays down general rules, and the principles of implied repeal | accepted by jurisconsults should apply to it; namely, that 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 spirit of the later law (1 Tolentino 35; 1 Borja 471, quoting from Demolombe and Zacharie). But when the intent to repeal an existing special law | can be clearly shown, the adoption of a new code | may repeal a prior special law. Where a statute purports to cover | the whole subject-matter, it supersedes former laws | on the same subject-matter. Effect of Repeal of Law. General Rule: Effect of a repealing act | must generally be governed by | the rules on retroactivity of laws. Hence, the repeal of a statute | CANNOT affect or impair any vested right, act done, penalty accrued, or judgment already final | before the repeal. EXCEPTION: But because of the rule that penal statutes | favorable to the accused | have retroactive effect, the repeal of a penal law | during the pendency of a criminal prosecution | under it, has the effect of depriving the court of jurisdiction | to further proceed with the case, which must be dismissed (People vs. Tamayo, 61 Phil. 225; People vs. Sindiong, 77 Phil. 1000). Repeal of Repealing Law. If First Repeal is Express: Law first repealed shall NOT be revived | UNLESS expressly so provided (Sec. 14, Revised Administrative Code) If Second Repeal NOT Express: Repeal of repealing law | will revive the prior law, UNLESS the language of the last law provides OTHERWISE (U.S. vs. Soliman, 36 Phil. 5; Administrative Code, in repealing Perjury Law, revived Penal Code provisions on perjury). Determination of Constitutionality. Criterion for determining the validity of the statute | must be sought in the Constitution itself. Some particular provision in the Constitution, be it a general principle or a specific rule, must have been violated. Executive Orders and Regulations. The regulations adopted | under legislative authority | by a particular department | must be in harmony with the provisions of the law, and for the sole purpose | of carrying into effect | its general provisions. The law itself, however, CANNOT be extended by such regulations (U.S. vs. Molina, 29 Phil. 119).

Article 8.

Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines.
(obligatory force, Doctrine of Stare Decisis)

Decisions NOT Source of Law. Jurisprudence, in our system of government | CANNOT be considered as an independent source of law; it CANNOT create law. A law established by jurisprudence | would be a judge-made law, which is juridically impossible | in our governmental system | in which there is separation of powers, inasmuch as the sole function of our courts | is to apply or interpret the laws (1 Tolentino 36-37, citing 1 Camus 38). Role of Jurisprudence. -While a judge CANNOT create abstract rules of law, because that would be an invasion of legislative power, he certainly can formulate and declare the law | as applied concretely to the case before him. Courts are NOT limited to the automatic and mechanical function of interpreting the law. Double Function: (1) To 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; and (2) To adapt and adjust | rigid and inflexible provisions of law, rendered inadequate | by time and circumstances, to the changing conditions of life and society, so that the law may accomplish | its social mission. Because of this, jurisprudence must necessarily be flexible, capable of receiving impressions from without, so that it can be an advance guard | in the equitable application of law | and an active instrumentality | in the progressive development of the law (1 Tolentino 37, citing 1 Valverde 194-196) Doctrine of Stare Decisis. The doctrine of stare decisis | enjoins adherence | to judicial precedents. It requires courts in a country | to follow the rule established | in a decision of the supreme court thereof. That decision becomes a judicial precedent | to be followed in subsequent cases | by all courts in the land. The doctrine of stare decisis | is based on the principle that | once a question of law has been examined and decided, it should be deemed settled | and closed to further argument (1 Tolentino 37, citing Prall vs. Burckhart, 299 Ill. 19, 132 N.E. 280). The doctrine, however, is flexible; so that when, in the light of changing conditions, a rule has ceased to be of benefit and use to society, the courts may rightly depart from it. Stare decisis is a principle of policy | and NOT a mechanical formula of adherence | to the latest decision, however recent and questionable, when such adherence involves collision | with a prior doctrine | more embracing in its scope, intrinsically sounder, and verified by experience. (1 Tolentino 37-38, citing Helvering vs. Hallock, 309 U.S. 444)

Article 9.

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

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, however reprehensible the act may seem to the judge (1 Tolentino 38) Duty of Court to Decide. The ignorance of the court | or his lack of knowledge | regarding the law | applicable to a case | submitted to him for decision, the fact that the court does NOT know the rules | applicable to a certain matter, and his NOT knowing where to find the law | relative to the case, are NOT reasons for dismissing the case | without deciding the issues (1 Tolentino 38). Same; Obscurity or Deficiency of Law. If the law is vague or obscure, the court should clarify it | in the light of the rules of statutory construction;

if it is silent or insufficient, the court should fill the deficiency | by resorting to customs | or general principles of law (1 Tolentino 39, citing 1 Oyuelos 23) Same; Unjust Laws. - It is the sworn duty of the judge | to apply the law | without fear or favor, to follow its mandate, NOT to tamper with it. The court CANNOT adopt a policy different from that of the law. What the law grants, the court CANNOT deny (Go vs. Anti-Chinese League, 84 Phil. 867). The judge CANNOT refuse to apply a law | just because he considers it unjust. If the law is clear, it must be applied; dura lex sed lex. The judge CANNOT legally invade | the domain of the legislative branch of the government (1 Tolentino 39, citing 1 Llerena 61) Rules Suppletory to Law. Under article 6 of the old Civil Code, it was provided that where there is no statute | exactly applicable to the point in controversy, the custom of the place shall be applied, and, in the absence thereof, the general principles of law. In the draft of the present Code, an article was inserted on this subject providing: When there is no law clearly applicable to the point at issue, or if the law is doubtful, ambiguous or conflicting, and previous judicial decisions do NOT throw light upon the question, the general or local customs shall govern. In the absence thereof, the judge shall apply that rule which he believes the lawmaking body would lay down, but he shall be guided by the general principles of law and justice. The spirit of analogous laws may be considered. He may bear in mind foreign legislation and decisions as well as the opinion of jurists. He may likewise take into consideration legal maxims. The foregoing provision, however, was eliminated by the Congress | when it enacted the Civil Code. Hence, there is no express provision in the present code | with respect to suppletory rules | in case of deficiency in the law. In spite of this, however, such suppletory rules | must be considered as existing. Even in countries where there is no express enumeration of the rules | that may be applied in the absence of positive law, custom and jurisprudence | are always considered as suppletory rules, contributing to the evolution of law | and its adjustment to changing conditions. The opinions of jurisconsults and commentators | are also constantly referred to | in judicial decisions; they serve to fill gaps in the application of the law (1 Tolentino 40, citing 1 Camus 26, 39-40) Concept of Customs. Custom may be defined as the juridical rule | which results from a constant and continued uniform practice | by the members of a social community, with respect to a particular state of facts, and observed with a conviction | that it is juridically obligatory. Same; Requisites of Custom; To Have Force of Suppletory Rule. (1) Plurality of Acts, or various resolutions of a juridical question raised repeatedly in life; (2) uniformity, or identity of the acts or various solutions to the juridical question; (3) general practice by the great mass of the social group; (4) continued performance of these acts for a long period of time; (5) general conviction that the practice corresponds to a juridical necessity or that it is obligatory; and (6) the practice must NOT be contrary to law, morals or public order (1 Tolentino 40; 1 Manresa 82; 1 Ruggiero 80-81; 1 Salvat 191-192; 1 Camus 32-33; 1 Valverde 185)

Same; Distinguished from Law. Custom differs from law | in its origin and form. As to origin, custom comes from the society, while law comes from the governmental power of the State; the former is a spontaneous, while the latter is a conscious creation. As to form, custom is tacit, being manifested in acts or usages, while law is express, manifested in solemn and official form. The former is unwritten law, the latter is written law (1 Tolentino 41, citing 1 Castan 69) Same; What Custom Applied. It is to be presumed that a person who performs a juridical act, NOT provided for by law, acts according to the custom of the place. This principle should be the basis for determining conflicts | between customs of different places. When the places | where the court is located | and the domicile of the parties is different, and each place has a different custom, it is to be presumed that | they knew the custom of their domicile | and NOT that of the courts location. If the domiciles of the parties are different | and they have different customs, Manresa believes that | there is no reason for making a preference, and the matter should be treated | as if there is no custom (1 Tolentino 41, citing 1 Manresa 82). Sanchez Roman sustains the view, however, that in the absence of reasons for preference, the general rule should be | to apply the custom of the place | for the performance or consummation of the juridical act (1 Tolentino 41, citing 2 Sanchez Roman 78). General Principles of Law. This phrase has NOT received a unanimous interpretation among writers on civil law. There are some, led by Valverde and Sanchez Roman, who define general principles of law as universal juridical standards | dictated by correct reason; or those principles of justice | beyond the variability and uncertainty of facts, those high standards | which serve as a foundation to positive law, those rules accepted by jurisconsults | which constitute real axioms | for all those who intervene in juridical life, and which form a law | superior to that which is enacted. (1 Tolentino 42, citing 2 Sanchez Roman 102) XXX

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.
(legal presumption, intent of the lawmaker) Source of Article. Taken from article 4 of the Swiss code, which provides: Where the statute refers the judge to his discretion or estimation of the circumstances, or to sufficient reasons, there he must decide according to right and equity. A similar provision in the Colombia code (article 32) is as follows. In cases where all rules of interpretation fail, ambiguous and contradictory clauses shall be construed in a manner most in conformity with the general spirit of legislation and natural equity. In justifying the inclusion of the present article in the Code, the Code Commission said: Though the foregoing is also an unquestionable rule, yet it is necessary to embody it in this Code, so that it may tip the scales in favor of right and justice when the law is doubtful or

obscure. It will strengthen the determination of the courts to aVOID and injustice which may apparently be authorized by some way of interpreting the law (Commission, p. 78). Applicability of Article. The rule stated in this article is to be applied only in case of doubt, and when all other rules of interpretation fail (1 Tolentino 44, citing 1 Borja 375). When the law is clear, and there is no doubt as to its meaning, the judge CANNOT go above the law but must apply it, even if it does NOT conform to his concept of right and justice (1 Tolentino 44, citing 1 Von Tuhr 64). Equity in Application of Law. Equity is an attribute of justice, and there can be no justice if the application of the law is NOT made with equity. Equity may correct and modify the bare written law, sometimes limiting its excessive generality, and at times extending it to supply deficiencies. Its mission is to temper the rigor of positive law. As Justinian said, equity is justice sweetened with mercy; its purpose, therefore is to seek and follow the intention of the legislator rather than the barer legal provision, to adapt the rigid precept of law to the social life (1 Tolentino 45, citing 1 Valverde 211)

Article 11. CUSTOMS which are contrary to law, public order or public policy shall NOT be countenanced. (n)
(obligatory force, prohibition) Source of Article. This is a restatement of a principle generally accepted even without specific provision in the law (1 Tolentino 45, citing 1 Camus 32-33; 1 Valverde 185). Application of Rule. No man or set of men can create a custom for their benefit or convenience and give it a force paramount to that of an express law. The Courts will NOT recognize the force of a custom in opposition to positive law (1 Tolentino 45)

Article 12. A CUSTOM must be proved as a fact, according to the rules of evidence.
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 (The Ship Success, 18 La. Ann, 1)

Article 13. When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days; months, of thirty days; days, of twenty four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days | which they respectively have.

In computing a period, the first day shall be excluded, and the last day included.
Meaning of Week. This article does NOT define what is a week. It has been held, however, that the term week, when computed according to the calendar, means a period of seven days, beginning on Sunday and ending on Saturday, but where the word is used simply as a measure of duration of time and without reference to the calendar, it means a period of seven consecutive days without regard to the day of the week on which it begins. Meaning of Month. There are several senses in which the term month may be understood. A lunar month is composed of twenty-eight days. A calendar month is a month designated in the calendar without regard to the number of days it may contain; in commercial transactions, it means a period ending on the day in the succeeding month corresponding to the day in the preceding month from which the computation began, and if the last month has NOT so many days, then on the last day of that (citing Gutierrez vs. Carpio, 53 Phil. 334). The Code, however, does NOT use month in either use of these senses, but strictly in a legal sense, as a period composed of thirty days (National Marketing Corporation vs. Tecson, et al., 29 SCRA 70) Computation of Time. The rule stated in the last paragraph of this article is similar, but NOT identical, to Rule 28 of the Rules of Court, which provides: In computing any period of time prescribed or allowed by the Rules of Court, by order of a court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is NOT to be included. The last day of the period so computed is to be included, UNLESS it is a Sunday or a legal holiday, in which event the time shall run until the end of the next day which is neither a Sunday nor a legal holiday. It will be noted that the present article of the Code does NOT contain the EXCEPTION referring to Sundays and legal holidays mentioned in the Rules of Court. The Rules of Court, however, applies only to a period of time prescribed or allowed by the Rules of Court, by order of a court, or by any applicable statute. From this, it seems logical to conclude that when the act and the period are contractual, NOT required by law, court order, or rule of court, the EXCEPTION referring to Sundays and holidays does NOT apply, and the act must be done on the last day, even if the latter should be a Sunday or a holiday. This is in consonance with the rule that the contract is the law between the contracting parties. This, of course, is without prejudice to special laws on the particular contract involved, such as in the case of negotiable instruments. Same; Date Specified. The rule stated above is applicable only where a given period of time must be counted from a certain date in order to determine the date on which an act must be performed. But there is no necessity for such computation when the date is fixed; that is, when the act is to take place at a specified future date (U.S. vs. Painaga, 27 Phil. 18).

Article 14. PENAL LAWS | and those of public security and safety shall be obligatory |

(obligatory force, Principle of Territoriality in Penal Law) (applicable to)

upon all who live or sojourn in Philippine territory,


(qualifications)

subject to the principles of public international law and to treaty stipulations.


Applicability of Laws to Aliens. Every sovereign state has absolute and exclusive power of government within its own territory. Aliens in general, being within the limits and jurisdiction of the State, are bound to respect its laws, and CANNOT exact any other mode of promulgation other than that which is marked out for the information of citizens (1 Tolentino 48, citing Moores International Law Digest, Vol. IV, p.10). They owe a local and temporary allegiance to the government of the country where they are; they must, therefore, obey its laws, and may be prosecuted for violating them. They may fairly be called upon to bear their share of the general public burden, when properly imposed upon them and other members of the community alike (Ibid., p. 21). On the other hand, aliens enjoy the civil rights guaranteed by the Constitution to all the inhabitants of the State. They come under the protection of the Bill of Rights in the same manner as citizens. The enjoyment of civil rights is independent of citizenship. This principle is expressly provided in the codes of France (article 7), of Romania (article 6), of Greece (article 9), of Serbia (article 6), of Chile (article 57), and of Brazil (article 3). Notwithstanding the lack of positive provision in our Code, it is submitted that the principle is acceptable under our law, especially when we consider that our dominant theory in conflict of law is of French origin. Same; Offenses by Military Personnel. The jurisdiction of the civil tribunals of the Philippines is NOT affected by the military or special character of the person brought before them for trial. The mere fact that the offender is a member of the United States Army and subject to court-martial, does NOT exempt him from punishment under the laws of the Philippines when he has violated them (U.S. vs. Sweet, 1 Phil. 18; Valdez vs. Lucero, 76 Phil. 356). Provisions of treaties must, however, be taken into account. Exemption under International Law. Under the theory of extraterritoriality, foreigners may be exempted from the operation of the laws of the Philippines in the following cases: (1) when the offense is committed by a foreign sovereign while in Philippine territory; (2) when the offense is committed bu diplomatic representatives; and (3) when the offense is committed in a public or armed vessel of a foreign country. Same; Offenses in Merchant Vessels. A merchant vessel in a foreign registry does NOT enjoy the extraterritorial privilege of foreign public or war vessels. A merchant vessel of one country which enters the port of another, subjects itself to the laws of the latter so long as it remains within the territorial waters. An offense committed on such vessel while it is in a Philippine port, constituting a breach of public order and a violation of the policy established by the legislature, is triable in Philippine court (U.S. vs. Bull, 15 Phil. 7; U.S. vs. Wong Cheng, 46 Phil. 729; U.S. vs. Look Chaw, 18 Phil. 573). Exemption by Treaty. By express provisions in a treaty with a foreign power, the Philippines may agree to exempt from the operation of its penal laws certain nationals of the former. An

example of this is the Philippine-United States Military Bases Agreement of March 14, 1947, under which the United States shall have jurisdiction over the following offenses:

(a) those committed in any base by any person, EXCEPT when the offender and the offended
party are both Filipino citizens, or when the offense is against the security of the Philippines; (b) those committed outside the bases, when the offender and the offended party are both members of the Armed Forces of the Philippines; and (c) those committed outside the bases by any member of the armed forces of the United States against the security of the United States. The Philippines shall have jurisdiction over all other offenses committed outside the bases by any member of the Armed Forces of the United States. The rights granted by this treaty are no less than those conceded by the rules of international law toa foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign (Dizon vs. Commanding General, G.R. No. L-1715).

Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons
(obligatory force, Theory of Nationality)

are binding upon citizens of the Philippines, even though living abroad. (9a)
Theories on Personal Law. There are two theories for determining what personal laws shall apply to a particular person. In one system, the necessary connection between a State and an individual is found in the fact that the individual is domiciled in the State in question; this is the domiciliary theory, followed in the United States, according to which the personal laws of a person are determined by his domicile. The other system makes nationality or citizenship as the basis for determining the personal laws of an individual; this is the nationality theory. The nationality theory was first established at the beginning of the 19th century in the Code Napoleon, which provided that the French laws concerning the personal status and capacity govern Frenchmen even when residing in foreign countries. In the converse case of a foreigner residing in France, the French courts generally apply by way of analogy the law of the country of which he is a national. This notion that an individuals private rights should be determined, NOT by his physical location but by his political allegiance, owes its origin to the awareness of national identity that was born in the French revolution and strengthened in the Italian struggle for national unity. It is this theory that is followed in our Civil Code (see Vivo vs. Cloribel, et al., 25 SCRA 616) Application of Article. This article treats of purely personal relations, and the status (Ellis, et al. vs. Republic [S.C.] G.R. No. L-16922, April 30, 1963) and capacity for juristic acts (Gibbs vs. Government of the Philippines, 59 Phil. 293). All questions relating to marriage and divorce or legal separation, to the conjugal partnership, to support between members of a family, and to marital authority, are governed exclusively by the law of the Philippines, when Filipinos are involved (Barnuevo vs. Fuster, 29 Phil. 606) Same; Capacity to Contract. If under the law of the State of which a party to a contract is a citizen, he is already of age at the time he enters into the contract, he CANNOT set such contract aside on the ground of minority, even if under the laws of the Philippines he is still a minor (Government vs. Frank, 13 Phil. 238)

Same; Renunciation of Allegiance. The question of how a citizen may strip himself of the status as such citizen is governed by his national law (Oh Hek Chow vs. Republic, 29 SCRA 94). Same; Foreign Adoption. It is the principle in Private International Law that the status of adoption, created by the law of a State having jurisdiction over it, will be given the same effect in another state as is given by the latter to the status of adoption when created by its own law. This principle is recognized in this country, EXCEPT when public policy or the interests of its inhabitants forbid its enforcement and demand the substitution of the lex fori.

Article 16. Real property as well as personal property


(obligatory force, Principle of Lex Rei Sitae) (second paragraph, EXCEPTION)

is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions.
(obligatory force of EXCEPTION, Theory of Nationality)

shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a)
Law on Property. Property is subject to the laws of the country in which it is located; Savigny bases this principle upon a voluntary submission to local laws implied in the holding of property within the country. As all tangible things occupy space, the place in space in which the thing is located must be regarded as the situs of the legal relationship which is the subject of the property right (1 Tolentino 52, citing Kuhn, Comparative Commentaries on Private International Law, p. 230) Same; Real Property. The legal and actual situs of immovables are identical. By no fiction of law nor theory of public policy can land be regarded as constructively located at any other place than its actual situs. It naturally follows that every question affecting title to land must be governed by the law of the space where the land is situated. No principle is more fundamental or thoroughly settled than that the local sovereignty can alone adjudicate upon and determine the status of lands and immovable property within its border, including their title and its incidents and the mode in which they may be charged or conveyed (Kuhn, ibid., pp. 222-2223). Same; Personal Property.- Under article 10 of the old Civil Code, personal property was subject to the laws of the nation of the owner, applying the principle that movables follows the owner, mobilia sequntur personam. The new code has changed the rule, following the more modern doctrine which subjects personal property to the law of the place where it is located. The modern tendency is to make no distinction between mobility and immobility of property (Asiatic Petroleum vs. Co Quico, 40 Off. Gaz. [6th Supp.] 133). Thus, it has been held that personal property may be separated from its owner, who may be taxed on its account at the place where the property is located, although such place is NOT his domicile and he is NOT a citizen or resident of the State which imposed the tax (Manila Gas Corporation vs. Collector, 62 Phil. 895).

The maxim mobilia sequntur personam grew up in the Middle Ages when movable property consisted chiefly of gold and jewels, which could easily be carried by the owner from place to place, or hidden in spots known only to himself. This maxim, however, has yielded to the lex situs because of the great increase in modern times of the amount and variety of property NOT immediately connected with the person of the owner. Furthermore, modern business is largely conducted by corporations, which frequently do NOT conduct their principal operations in the place of their technical domicile. Same; Determination of Property. According to Manresa, under the Spanish Civil Code, the determination of what property is movable must be made according to the national laws of the owner. Under the present code, the lex situs should govern. Same; Right to Possession. The right of a person to be respected in his possession of movable property, until it is shown that he is possessing illegally, must be governed by the law of the state in which the property is found, because it refers to a matter of public order. Law on Succession. The law governing succession may be considered from the point of view of (a) the execution of wills, and (b) the distribution of property. The formalities of execution of will are generally governed by the law of the place of execution; article 17, first paragraph, applies in this case. But the distribution of the estate is governed by the law of the nation of the deceased; the present article applies in such case. The distribution of the estate may involve various questions: (1) the order of succession in cases of intestacy, (2) the intrinsic validity of the testamentary provisions in case of testate succession; (3) the extent or amount of property which each heir is entitled to inherit, (4) the capacity of certain heirs to succeed, and (5) questions of preterition, disinheritance, and collation. All these matters are governed by the law of the nation of the decedent, irrespective of the nature and location of the properties left by him at the time of his death. The reason for this unity of the applicable law has been aptly stated by Dean Capistrano thus: With respect to succession there is only one will, express in testamentary and presumed in intestate succession. The oneness and universality of the inheritance CANNOT be divided or broken up merely because of the different countries where properties of the estate are situated (1 Tolentino 54, citing Capistrano, Civil Code, Vol. 1, p. 21) Same; Applicability of Foreign Law. The second paragraph of this article applies only when a legal or testamentary succession has taken place in the Philippines in accordance with the law of the Philippines; and the foreign law is consulted only in regard to the order of succession or the extent of the successional rights; in other words, the second paragraph of this article can be invoked only when the deceased was vested with a descendible interest in property within the jurisdiction of the Philippines (Gibbs vs. Government of the Philippines, 59 Phil, 293). The intrinsic validity of the provisions of the will of a foreigner who dies in the Philippines is to be determined by the laws of his own state or country, and NOT by those of the Philippines (In re Estate of Johnson, 39 Phil. 156; Templeton vs. Babcock, 52 Phil. 130; Collector vs. Fisher, et al. (S.C.) G.R. Nos. L-11622, january 28, 1961; Bohanan, et al. vs. Bohanan, et al. (S.C.) 60 O.G. 4615). Thus, a condition in a will of a foreigner that his legatee respect his order that his property be distributed according to the laws of the Philippines instead of the laws of his own country, was held illegal and considered NOT written (Miciano vs. Brimo, 50 Phil. 867) Same; Proof of Foreign Law. When a foreign law is involved, it must be alleged and proved.

Article 17.

The forms and solemnities of contracts, will, and other public instruments
(obligatory force, Rule on Extrinsic Validity of Will)

shall be governed by the laws of the country in which they are executed.
(second paragraph, before consular officials)

When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippines laws shall be observed in their execution.
(third paragraph)

Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs
(obligatory force, Rule on EXCEPTION to Lex Loci Celebrationis)

shall NOT be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
Execution of Contracts. Under the first paragraph of this article, it was held that a power of attorney executed in Germany, should be tested as to its formal validity by the laws of that country, and NOT by the provisions of the Civil Code (German & Co. vs. Donaldson, Sim & Co., 1 Phil. 63) In Government vs. Frank, 13 Phil. 236, where the contract was entered into in Illinois, U.S.A., between the Philippine Government and an American citizen, the latter was already of age and had capacity to contract under the laws of Illinois, but was still a minor under the laws of the Philippines. In an action upon the contract, brought against him by the Government, the defendant alleged that the contract could NOT be enforced against him because he was a minor under the laws of the Philippines. HELD: Defendants contention is untenable. No rule is better settled than that matters bearing upon the execution, interpretation, and validity of a contract are determined by the law of the place where the contract is made (Tolentino: This decision is NOT under the provisions of article 17 of the Civil Code, which refers only to the forms and solemnities of contracts). Performance and Enforcement. Matters connected with the performance of contracts are regulated by the law prevailing at the place of performance. Remedies, such as the bringing of suit, admissibility of evidence, and the statute of limitations, depend upon the law of the place where the action is brought (Government vs. Frank, 13 Phil. 236; see also Mac Millan & Bloedel, Ltd. vs. Valderrama, etc., (C.A.) O.G. 1696). Foreign Judgments. Litigants by mutual agreement CANNOT compel the courts to approve of their own actions or permit the personal relations of citizens of the Philippines to be affected by decrees of foreign courts in a manner which our government believes to be contrary to public order and good morals (Barretto vs. Gonzales, 58 Phil. 67, 72)

The legislative policy in this jurisdiction on any particular subject CANNOT be defeated by a foreign judgment obtained by Filipino citizens. That the law on the subject in the Philippines is too strict or too liberal is beside the point (Sikat vs. Canson, 67 Phil. 207). Validity and Effects of Obligations. The code fails to mention the law which shall govern the validity and effects of obligations. Since the rule contained in this article follows the Italian code, Manresa and Valverde believe that the doctrine in that code, as stated in Fiore, can be followed. First, the law designated by the parties shall be applied; if there is no stipulation on the matter, and the parties are of the same nationality, their national law shall be applied; if this is NOT the case, the law of the place of perfection of the obligation shall govern its essence and nature, and the law of the place of the performance shall govern its fulfillment; but if these places are NOT specified and they CANNOT be deduced from the nature and circumstances of the obligation, then the law of the domicile of the passive subject shall apply (1 Tolentino 57, citing 1 Valverde 151). Considering the facts of Government vs. Frank, 13 Phil. 236 (see supra, under this article), the rule laid down in that case is in conformity with the above doctrine. It is submitted that the principles set forth by Fiore are applicable under our law.

Article 18.

In matters which are governed by the CODE OF COMMERCE | and SPECIAL LAWS,
(Rule on Suppletory Application)

their deficiency shall be supplied by the provisions of this Code.


Application of Article. Where there is NO DEFICIENCY in the special law, the provisions of the Civil Code CANNOT be applied. Thus, the Civil Code provisions on the formality of sales and transfers of large cattle which fall under a special law containing provisions on the matter. This is in consonance with the principle that on a specific matter, a SPECIAL LAW - shall prevail over a GENERAL LAW, which shall be resorted to - only to supply deficiencies in the former (Leyte vs. A. & M. Oil Co. vs. Block, 52 Phil.429). EXCEPTIONS to Article. The Code does NOT observe the principle contained in this article with consistency. There are special cases expressly provided in the Code itself, where the special law or the Code of Commerce is made only suppletory, while the Civil Code is made primary law. The following may be cited as examples of this want of a uniform criterion in the Code: (1) In the CONTRACT OF TRANSPORTATION by common carriers, article 1766 provides: In all matters NOT regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws. (2) In the CONTRACT OF LOAN, when usurious, article 1961 provides: Usurious contracts shall be governed by the Usury law and other special laws, so far as they are NOT inconsistent with this Code.

(3) In the Title on PREFERENCE OF CREDITS, when the properties of the debtor are NOT sufficient for his debt, article 2237 provides: Insolvency shall be governed by special laws insofar as they are NOT inconsistent with this Code.