GENERAL PRINCIPLES

EFFECT AND APPLICATION OF LAWS

It is a rule of conduct formulated and made obligatory by legitimate power of the state (Diaz, 2013).

Effectivity of laws

Laws shall take effect after fifteen days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is otherwise
provided [New Civil Code (NCC), Art. 2, as amended by EO 200)].

Effectivity: It depends on whether or not it has provided a

specific date for its effectivity:

1. If date is specified– Upon the lapse of the said period following its complete publication and not
before. 2. If no date is specified– 15-day period, which may either be on the 15th or on the 16th day
depending on the language used by the Congress in fixing the effectivity date of the statute (Rabuya,
2009).

a. 15th day - If the law declares that it shall become effective “15 days after its publication” b. 16th
day - If the law declares that it shall be effective “after 15 days following its publication”

3. If the law provides for immediate effectivity or upon approval – It is effective immediately after its
complete publication and not after signing by the President. 4. If the law is voluminous– Reckoning
shall begin from the release of the last of the series.

“Unless it is otherwise provided” provision on effectivity of

laws

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

Publication requirement

Publication is indispensable in every case, but the legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or extended (Umali v. Estanislao, G.R. No. 104037, May
29, 1992; Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986).
Publication must be in full or it is no publication at all since its purpose is to inform the public of the
contents of the law. The mere mention of the number of the presidential decree, the title of such
decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the Official
Gazette cannot satisfy the publication requirement. This is not even substantial compliance (Tañada v.
Tuvera, G.R. No. L-63915, December 29, 1986).

Indispensability of publication

GR: All laws are required to be published in full.

NOTE: The reason for this rule is that the basic constitutional requirement of due process must be
satisfied. (Rabuya, 2009). Without such notice and publication, there would be no basis for the
application of the maxim ignoratia legis non excusat (Rabuya, 2009).

XPNs to the Publication Requirement: O-R-L-I

1. Municipal Ordinances (governed by the Local Government Code);

2. Rules and regulations which are internal in nature;
3. Letters of Instruction issued by administrative supervisors on internal rules and guidelines;
4. Interpretative regulations regulating only the personnel of administrative agency.

XPNs to the XPNs: D-E-P

Administrative rules and regulations that require publication:

1. The purpose of which is to implement or enforce existing laws pursuant to a valid Delegation;
2. Penal in nature;
3. It diminishes Existing rights of certain individuals.

NOTE: Circulars issued by the monetary board are required to be published if they are meant not to
merely “fill in details” of the Central Bank Act.
As a rule, circulars which prescribe a penalty for violations should be published before coming into
effect. However, circulars which are mere statements of general policies as to how the law should be
construed do not need publication in the Official Gazette for their publication.

Where to publish

1. Official Gazette; or
2. Newspaper of general circulation in the Philippines

Newspaper of general circulation

For a newspaper to be considered of general circulation:

1. It must be published within the court’s jurisdiction;
2. It must be published at regular intervals for disseminating local news and general
information;
3. It has a bonafide subscription list of paying subscribers; and
4. It is not devoted to the interest or published for the entertainment of a particular class,
profession, trade, calling, race or religious denomination (Alvarez v. People, G.R. No. 192591, June 29,
2011).
Q: Honasan questions the authority and jurisdiction of the DOJ panel of prosecutors to conduct a
preliminary investigation and to eventually file charges against him, claiming that since he is a senator
with a salary grade of 31, it is the Office of the Ombudsman, not the DOJ, which has authority and
jurisdiction to conduct the preliminary investigation. DOJ claims that it has concurrent jurisdiction,
invoking an OMB-DOJ Joint Circular which outlines the authority and responsibilities among
prosecutors of the DOJ and the Office of the Ombudsman in the conduct of preliminary investigations.
Honasan counters that said circular is ineffective as it was never published. Is OMB-DOJ Circular No.
95-001 ineffective because it was not published?

A: NO. OMB-DOJ Circular No. 95-001 is merely an internal circular between the two offices which
outlines the authority and responsibilities among prosecutors of the DOJ and of the Office of the
Ombudsman in the conduct of preliminary investigations. It does not contain any penal provision nor
prescribe a mandatory act or
prohibit any under pain of penalty. It does not regulate the conduct of persons or the public, in
general. It need not be published (Honasan, II v. The Panel of Investigating Prosecutors of the DOJ,
G.R. No. 159747, June 15, 2004).

Q: The Sangguniang Bayan of Hagonoy, Bulacan enacted an ordinance which increased the stall
rentals of the market vendors in Hagonoy. Art. 3 of the said ordinance provided that it shall take
effect upon approval. The ordinance was posted from November 4 to 25, 1996. In the last week of
November 1997, petitioners were personally given copies and were informed that it shall be enforced
in January 1998. The petitioners contended that the subject ordinance was not published as required
by law. Did the ordinance comply with the rule of publication?

A: YES. An ordinance which increased the stall rentals of the market vendors has complied with the
publication requirement when the same was posted in 3 conspicuous places (Sec. 188, Local
Government Code; Hagonoy v. Municipality, G.R. No. 137621, February 6, 2002).

NOTE: Within ten (10) days after their approval, certified true copies of all provincial, city, and
municipal tax ordinances or revenue measures shall be published in full for three (3) consecutive days
in a newspaper of local circulation: Provided, however, That in provinces, cities and municipalities
where there are no newspapers of local circulation, the same may be posted in at least two (2)
conspicuous and publicly accessible places (Sec. 188, Local Government Code).

Exceptions to the publication requirement

1. An interpretative regulation; 2. A regulation that is merely internal in nature; and 3. A letter of

instruction issued by an administrative agency concerning rules or guidelines to be followed by
subordinates in the performance of their duties (Association of Southern Tagalog Electric
Cooperatives, Inc. v. Energy Regulatory Board, G.R. No. 192117, September 18, 2012).

Q: Judge Ferdinand Villanueva was appointed as a presiding judge of MTC, Compostela-New Bataan.
The following year, Judge Villanueva applied as Presiding Judge in several Regional Trial Courts. The
Judicial and Bar Council (JBC) then informed him that he was not included in the list. The JBC’s
decision upheld its long-standing policy of opening the chance for promotion to second-level courts to
those judges who have served in their current positions for at least five years. Judge Villanueva then
directly went to Court to assail the said policy on the ground it is unconstitutional; it violates the
procedural due process for lack of publication. Did the JBC violate the procedural due process for not
publishing the questioned policy?

A: YES. The petition was dismissed but the SC directed the JBC to comply with the publication
requirement of the assailed policy. According to SC, it is but a natural consequence that potential
applicants be informed of the requirements to the judicial positions so that they would be able to
prepare for and comply with them (Villanueva v. Judicial and Bar Council, G.R. No. 211833, April 07,
2015).
Examples of administrative issuances which were not given
force and effect for lack of publication

1. Rules and regulations issued by the Joint Ministry of Health-Ministry of Labor and
Employment Accreditation Committee regarding the accreditation of hospitals, media clinics and
laboratories.
2. Letter of Instruction No. 416 ordering the suspension of payments due and payable by
distressed copper mining companies.
3. Memorandum Circulars issued by the POEA regulating the recruitment of domestic helpers
to Hongkong.
4. Administrative Order No. SOSPEC 89-08-01 issued by Philippine International Trading
Corporation regulating applications for importation from the People’s Republic of China.
5. Corporate Compensation Circular No. 10 issued by the Department of Budget and
Management discontinuing the payment of other allowances and fringe benefits to government
officials and employees (Ulep, 2006).

Q: “A” alleges violation of his right to due process considering that he is summoned to attend the
Senate hearings without being apprised not only of his rights therein through the publication of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Senate invoked the provisions of
R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, to support their claim of
valid publication through the
internet. Did the publication of the assailed Rules of Procedure through the Senate’s website satisfy
the due process requirement of law?

A: NO. R.A 8792 – Electronic Act of 2000 considers an electronic data message or an electronic
document as a functional equivalent of a written document only for evidentiary purposes. It does not
make the internet a medium for publishing laws, rules or regulations (Garcillano v. The House of
Representatives Committee on Public Information, Public Order and Safety, National Defense and
Security, Information and Communications Technology and Suffrage and Electoral Reforms, G.R. No.
170338, December 23, 2008).

IGNORANCE OF THE LAW

Presumption of knowledge of laws

GR: Everyone is conclusively presumed to know the law. Hence, ignorance of the law excuses no one
from compliance therewith (NCC, Art. 3).

This conclusive presumption presupposes that the law has been published. Without such notice and
publication, there would be no basis for the application of the maxim ignoratia legis non excusat
(Rabuya, 2009).

XPNs:

a. Mistake upon a doubtful or difficult question of law may be the basis of good faith [NCC, Art.
526 (3)].
b. Payment by reason of a mistake in the construction or application of a doubtful or difficult
question of law may come within the scope of the preceding article (NCC, Art. 2155).
c. In order that fraud may make a contract voidable, it should be serious and should not have
been employed by both contracting parties. Incidental fraud only obliges the person employing it to
pay damages (NCC, Art. 1344).

NOTE: The possession of the antichretic credit as possession in good faith since a difficult question of
law was involved – antichresis. In this case, the parties were not very knowledgeable of the law
(Kasilag v. Rodriguez, G.R. No. 46623, December 7, 1939).

Laws covered
The laws referred to under Art. 3 of the NCC are those of the Philippine Laws and it applies to all kinds
of domestic laws, whether civil or penal, substantive or remedial. However, the article is limited to
mandatory and prohibitory laws. It does not include those which are merely permissive (Rabuya,
2006).

Non-applicability to foreign laws

Ignorance of a foreign law is a mistake of fact. There is no presumption of knowledge of foreign laws.
It must be alleged and proved as a matter of fact; otherwise, the doctrine of processual presumption
will apply.

Doctrine of Processual Presumption

In international law, the party who wants to have a foreign law applied to a dispute or case has the
burden of proving the foreign law. The foreign law is treated as a question of fact to be properly
pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is
presumed to know only domestic or forum law (ATCI Overseas Corporation, et al. v. Echin, G.R. No.
178551, October 11, 2010; See case of Del Socorro v. Brinkman G.R. No. 193707 December 10, 2014).

Mistake of fact v. Mistake of law

Q: Eduardo was married to Ruby. He then met Tina and proposed marriage, assuring her that he was
single. They got married and lived together. Tina, upon learning that Eduardo had been previously
married, charged Eduardo for bigamy for which he was convicted. Eduardo testified that he declared
he was “single” because he believed in good faith that his first wife was already dead, having not
heard from her for 20 years, and that he did not know that he had to go to court to seek for the
nullification of his first marriage before marrying Tina. Is Eduardo liable for the crime of bigamy? A:
YES. Eduardo is presumed to have acted with malice or evil intent when he married Tina. Mistake of
fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone
is presumed to know the law. Eduardo has the burden to prove that when he married Tina, he has a
well-grounded belief that his first wife was already dead. He should have adduced in evidence a
decision of a competent court declaring the presumptive death of his first wife as required by Art. 349
of the RPC, in relation to Art. 41 of the FC. Such judicial declaration constitutes proof that Eduardo
acted in good faith, and would negate criminal intent on his part when he married the private
complainant (Manuel v. People, G.R. No. 165842, November 29, 2005).

Q: Complainants who were connected with the Daily Informer (a widely circulated newspaper in
Western Visayas) were charged before the MTC by Judge Pamonag of the crime of libel. Respondent
judge conducted a preliminary investigation and thereafter issued warrants for the arrest of the
complainants. Complainants filed an administrative case against the judge for gross ignorance of the
law. They contended that the judge neither has authority to conduct a preliminary investigation nor
to issue warrants for their arrest. The judge said that it was his first libel case and that he issued the
warrants in good faith. Is the respondent guilty of gross ignorance of the law?

A: YES. Judges are expected more than just cursory acquaintance with statutes and procedural rules.
They must know the law and apply them properly in good faith. The provisions of Art. 360 of the RPC
on the persons authorized to conduct preliminary investigation in libel cases is so elementary. Not to
know it constitutes gross ignorance of the law (Miaque v. Judge Pamonag, A.M. No. MTJ-02-1412,
March 28, 2003).

Q: Cheong Boo, a native of China died intestate in Zamboanga. He left a property worth P100,000. The
estate of the deceased was claimed on one hand by Gee, who alleged that he was a legitimate child
by a marriage contracted by Boo with Tan Dit in China in 1895. The estate was claimed, on the other
hand, by Mora Adong who alleged that she had been lawfully married to Boo in 1896. Gee introduced
in evidence a document in Chinese stating the marriage ceremony that took place in Amoy, China. Is
the document presented by Gee sufficient enough to prove the Chinese marriage of Cheong Boo and
Tan Dit?

A: NO. The Supreme Court held that the document is not sufficient to prove the Chinese marriage
between Cheong Boo and Tan Dit. Gee only presented a document in Chinese stating the alleged
marriage ceremony but there is no competent testimony as to what the laws of China in the Province
of Amoy concerning marriage were in 1895. Therefore, there is lacking proof so clear, strong and
unequivocal as to produce a moral conviction of the existence of the alleged prior Chinese marriage.

Ignorance of a foreign law is not ignorance of the law but of fact because such foreign law must be
first alleged and proved as a matter of fact, there being no judicial notice of said foreign law. The
Chinese marriage was not adequately proved (Estate of Boo v. Gee, G.R. No. 18081, March 3, 1922).

RETROACTIVITY OF LAWS
Laws shall have no retroactive effect, unless the contrary is provided (NCC, Art. 4).

Retroactive law

A legislative act that looks backward or contemplates the past, affecting acts or facts that existed
before the act come into effect (Black’s Law Dictionary, 2009).

Retroactive effect of laws

GR: Laws shall have no retroactive effect (lex prospicit, non respicit).

XPNs: (T-I-N-C-R-E-E-P)

1. Tax laws;
2. Interpretative statutes;
3. Laws creating New substantive rights;
4. Curative statutes;
5. Remedial/procedural;

NOTE: Statutes regulating the procedure of the courts will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retrospective in that
sense and to that extent (Mun. Gov’t of Coron v. Carino, G.R. No. 65894, September 24, 1987).
6. Emergency laws;
7. When Expressly provided;
8. Penal laws favorable to the accused provided, the accused is not a habitual delinquent.

XPNs to the XPNs:

If the application of the retroactive law:

1. Impairs obligation of contracts;
2. Is in the nature of ex post facto law or a bill of attainder,
3. Divests vested rights; or
4. Is constitutionally forbidden (Black’s Law Dictionary, 2009).

NOTE: In case of doubt, laws apply prospectively.

Non-retroactivity of laws vis-à-vis judicial decisions

Judicial decisions have no retroactive effect. When a doctrine of the Supreme Court is overruled and a
different view is adopted, the new doctrine should be applied prospectively and should not apply to
parties who had relied on the old doctrine and acted on the faith thereon (Rabuya, 2009).

Lex prospicit, non respicit

The maxim means, “the law looks forward not backward”. The retroactive application of a law usually
divests rights that have already become vested or impairs the obligations of contract and hence, is
unconstitutional (Chavez v. PEA, G.R. No. 133250, May 6, 2003)

Retroactivity clause of the Family Code (2005, 2010 BAR)

The Family Code shall have retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws (FC, Art. 256).

MANDATORY AND PROHIBITORY LAWS

Mandatory law

A law or a provision in a statute is said to be mandatory when disobedience to it, or want of exact
compliance with it, will make the act done under the statute absolutely void (Black’s Law Dictionary,
2009).

Prohibitory law

A law or a provision in a statute is said to be prohibitory when it forbids a certain action (Black’s Law
Dictionary, 2009).
Permissive law

A law or a provision in a statute is said to be permissive or directory when it allows certain acts but
does not command them (Black’s Law Dictionary, 2009).

Violation of Mandatory or Prohibitory Laws

GR: Acts executed against the provisions of mandatory or prohibitory laws shall be void (NCC, Art. 5).

XPNs: When the law:

1. Itself authorizes its validity (e.g. lotto, sweepstakes);

2. Makes the act valid but punishes the violator (e.g. Marriage solemnized by a person not
authorized to do so);
3. Makes the act merely voidable;
4. Declares the nullity of an act but recognizes its effects as legally existing (e.g. Child born after
the annulment of marriage is considered legitimate).

WAIVER OF RIGHTS

Waiver

It is a voluntary and intentional relinquishment or abandonment of a known existing legal right,

advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed.

The voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with
the intent that such right shall be surrendered and such person forever deprived of its benefit; or such
conduct as warrants an inference of the relinquishment of such right; or
the intentional doing of an act inconsistent with claiming it (Cruz & Co., Inc. v. HR Construction Corp.,
G.R. No. 187521, March 14, 2012).

NOTE: Waivers can be express or implied, however, it cannot be presumed. It must be clearly and
convincingly shown, either by express stipulation or acts admitting no other reasonable explanation.

Right

It is a legally enforceable claim of one person against another, that the other shall do a given act, or
shall not do a given act (Pineda, 2009).

Kinds of rights

1. Natural Rights – Those which grow out of the nature of man and depend upon personality
(e.g. right to life, liberty, privacy, and good reputation);
2. Political Rights – Consist in the power to participate, directly or indirectly, in the
establishment or administration of government (e.g. right of suffrage, right to hold public office, right
of petition); and
3. Civil Rights– Those that pertain to a person by virtue of his citizenship in a state or
community (e.g. property rights, marriage, equal protection of laws, freedom of contract, trial by jury)
(Pineda, 2009).

a. Rights of personality or human rights;

b. Family rights; and
c. Patrimonial rights:

i. Real rights;
ii. Personal rights (Rabuya, 2009).

Unwaivable rights

1. Right to live and right to future support.

2. Right to personality and family rights.
3. Right to future inheritance.

NOTE: This is especially so if the waiver is intended to prejudice creditors. Hence, if an heir repudiates
the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize
them to accept it in the name of the heir (NCC, Art. 1052; Albano, 2013).

NOTE: If a candidate for mayor agrees to split his term of office with the vice-mayor to prevent the
latter from running against him, the contract is void by reason of public policy (Albano, 2013).

Waiver of rights

GR: Rights may be waived.

XPNs: 1. If waiver is: a. Contrary to law, public order, public policy, morals or good customs; b.
Prejudicial to a third person with a right recognized by law. (e.g. If A owes B P10M, B can‘t waive the
loan if B owes C and B has no other assets). 2. If the right is: a. A natural right, such as right to life; b.
Inchoate, such as future inheritance.

A person may waive any matter which affects his property, and any alienable right or privilege of
which he is the owner or which belongs to him or to which he is legally entitled, whether secured by
contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges
rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and
further provided the waiver of the right or privilege is not forbidden by law, and does not contravene
public policy (Cruz & Co., Inc. v. HR Construction Corp., G.R. No. 187521, March 14, 2012).

Requisites of a valid waiver

1. Waiving party must actually have the right he is renouncing;

2. He must have full capacity to make the waiver;
3. Waiver must be clear and unequivocal;
4. Waiver must not be contrary to law, public order, public morals, etc;
5. When formalities are required, they must be complied with.
Q: A student was granted a scholarship but agreed not to transfer to another school unless he would
refund all the benefits he derived out of his scholarship. Is the stipulation valid? Why?

A: NO. It is void because it is contrary to public policy and morals (Cui v. Arellano University, G.R.
L-15127, May 30, 1961).

REPEAL OF LAWS
It is the abrogation of an existing law by a legislative act (Black’s Law Dictionary, 2009).

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 (Art. 7, 1st par.).

Ways of repealing laws

1. Express - If the law expressly provides for such;

2. Implied - If the provisions of the subsequent law are incompatible or inconsistent with those
of the previous law, provided, it is impossible to reconcile the two laws.

Requisites of an implied repeal

1. The laws cover the same subject matter; and 2. The latter is repugnant to the earlier (Rabuya,
2009).

NOTE: 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
(Rabuya, 2009).

Instances of implied repeal

1. When the provisions in the two acts on the same subject matter are irreconcilably contradictory, in
which case, the later act, to the extent of the conflict, constitutes an implied repeal of earlier one; and
2. When the later act covers the whole subject of the earlier one and is clearly intended as a
substitute; thus it will operate to repeal the earlier law (Carmelita Lledo v. Atty. Cesar V. Lledo, A.M.
No. P-95-1167, February 9, 2010).

Revival of repealed law

BASIC EXPRESS REPEAL IMPLIED REPEAL

Manner of Repeal If the 1st law is expressly
repealed by the 2nd law and
the 2nd law is repealed by the
3rd law.
Effect of Repeal The 1st law is NOT revived
unless expressly provided so.
If the 1st law is repealed by
implication by the 2nd law and
the 2nd law is repealed by the
3rd law.
The 1st law is revived unless
otherwise provided.
Conflict between general and special laws

If the general law was enacted prior to the special law, the latter is considered the exception to the
general law. If the general law was enacted after the special law, the special law remains.

XPNs:

1. There is an express declaration.

2. There is a clear, necessary and irreconcilable conflict.
3. The subsequent general law covers the whole subject and is clearly intended to replace the
special law on the matter (Rabuya, 2009).

Self-lapsing laws

Laws that provide for their limited application (e.g. House Rental Law, Annual Appropriations Act,
Import Control Law).

JUDICIAL DECISIONS
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines (NCC, Art. 8). (1994 BAR)

Judicial decisions are evidence of what the laws mean.

The judicial decisions form part of the law of the land as of the date of the enactment of said law. The
Supreme Court’s interpretation merely establishes the contemporaneous legislative intent that the
construed law purports to carry into effect. However, the decisions referred to in Art. 8 of the NCC are
only those enunciated by the SC (Rabuya, 2009).

When a doctrine is overruled and a different view is adopted, the new doctrine should be applied
prospectively and should not prejudice parties who relied on the old doctrine.

Doctrine of Stare Decisis

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

However, when in the light of changing conditions, a rule has ceased to be beneficial to the society,
courts may depart from it.

Obiter Dictum

An opinion expressed by a court upon some question of law which is not necessary to the decision of
the case before it. Such are not binding as precedent (Rabuya, 2009).
DUTY TO RENDER JUDGMENT

Rendering of judgment by reason of silence of law

No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency
of the laws (NCC, Art. 9). (2003 BAR)

However, in criminal prosecutions, the judge must dismiss the case if a person is accused of a
nonexistent crime following the maxin “nullum crimen, nulla poena sine lege” (Rabuya, 2009).

NOTE: This duty, however, is not a license for courts to engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to make or amend it.

Guidelines on rendition of decisions under Art. 9

1. When there is no law exactly applicable to the point in controversy, the custom of the place shall be
applied and in default thereof, the general principles of law; 2. Decisions of foreign courts; 3. Opinions
of known authors and professors; 4. Applicable rules of statutory construction; 5. Principles
formulated in analogous cases.

PRESUMPTION AND APPLICABILITY OF

CUSTOM

Presumption in case of doubt in the interpretation of laws

In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body
intended right and justice to prevail (NCC, Art. 10). (2003 BAR)

In case of silence, obscurity or insufficiency of the law with

respect to a particular controversy

If the law is silent, or is obscure or insufficient with respect to a particular controversy, the judge shall
apply the custom of the place, and in default thereof, the general principles of law and justice.

Customs

Customs are rules of conduct, legally binding and obligatory, formed by repetition of acts uniformly
observed as a social rule.
Necessity of proving customs

GR: A custom must be proved as a fact, according to the rules of evidence (NCC,Art. 12).

XPN: Courts may take judicial notice of a custom if there is already a decision rendered by the same
court recognizing the custom.

Requisites before such custom could be considered a source

of right

3. Plurality of acts;
4. Uniformity of acts;
5. General practice by the great mass of the people of the country or community;
6. Continued practice for a long period of time;
7. General conviction that the practice is the proper rule of conduct;
8. Conformity with law, morals or public policy (Tolentino, 1987).

Application of customs in civil cases

In civil cases, customs may be applied by the courts in cases where the applicable law is: a. Silent b.
Obscure c. Insufficient

NOTE: Provided said customs are not contrary to law, public morals, etc.

Non-applicability of customs in criminal cases

In criminal cases, customs cannot be applied because of the maxim nullum crimen nulla poena sine
lege (There is neither crime nor punishment, without a law).

LEGAL PERIODS

Computation of period

1. Year – 12 calendar months (CIR v. Primetown Property Group, Inc., G.R. No. 162155, August 28,
2007).

NOTE: In the said case, the Supreme Court declared that the provision of Section 31, Chapter VII, Book
I of the Administrative Code of 1987, being a more recent law, governs the computation of legal
periods with respect to counting “a year.”

A Calendar Month is “a month designated in the calendar without regard to the number of days it
may contain.” It is the “period of time running from the beginning of a certain numbered day of the
next month, and if there is not sufficient number of days in the next month, then up to and including
the last day of that month.”
Illustration: One calendar month from December 31, 2007 will be from January 1, 2008 to January 31,
2008; one calendar month from January 31, 2008 will be from February 1, 2008 until February 29,
2008. Hence, twelve calendar months from December 31, 2007 is December 31, 2008; while twelve
calendar months from January 31, 2008 to January 31, 2009 (Rabuya, 2009).

3. Month – 30 days, unless designated by their name, in which case, they shall be computed
according to the number of days which they respectively have;
4. Day– 24 hours; 4. Night time – from sunset to sunrise;
5. Week – 7 successive days regardless of which day it would start;
6. Calendar week – Sunday to Saturday.

NOTE: In the computation of period, the first day shall be excluded, and the last day included.

If the last day falls on a Sunday or a legal holiday

If the act to be performed within the period is:

1. Prescribed or allowed by:

a) The Rules of Court;
b) An order of the court; or
c) Any other applicable statute.

The last day will automatically be the next working day.

2. From a contractual relationship – The act will still become due despite the fact that the last day falls
on a Sunday or a legal holiday.

CONFLICT OF LAWS

GENERAL PRINCIPLES

Private international law

It is a part of municipal law of a state which directs its courts and administrative agencies when
confronted with a legal problem involving foreign element, whether or not they should apply the
foreign law.

Conflict of laws

It is the inconsistency or difference between the laws of different states or countries, arising in the
case of persons who have acquired rights, incurred obligations, injuries or damages, or made
contracts, within the territory of two or more jurisdictions. (Black’s Law Dictionary, Fifth Edition)
Functions of private international law

1. Prescribes conditions under which a court or agency is competent to entertain proceedings

with foreign elements’
2. Specifies the circumstances in which foreign judgment will be recognized as valid and binding
in the forum;
3. Determines the particular system of law for each class of cases to ascertain the rights of the
parties (Paras, 1990)

Elements of Conflict of laws

1. Legal problem or case involving foreign element;

Foreign element – a factual situation cutting across territorial lines, affected by diverse laws of two or
more states.

2. Primary function is to determine whether the law or judgments of other state/s will govern and if
so the extent if its recognition or application in the forum (Coquia, 2000).

Private International Law v. Public International law

Two views:

1. Monist school - Both subjects are essentially the same, because they manifest a single concept of
law, ultimately addressed to the same individual

2. Dualist School - This school of thought differentiates private and public international law in the
following manner:

Private international law Public International law

As to nature
As to persons involved
As to transactions involved
As to remedies and sanctions
Municipal in character
Private individuals
Private transactions with
private individuals
Resort to municipal tribunals
International in character
Sovereign states and other
entities possessed of
international personality
Transactions generally affect
public interest; or of interest
only to sovereign states
Remedies may be peaceful or
forcible

Sources of Philippine conflict rules

1. Family code Articles 10, 21, 26, 35, 36, 37, 38, 80, 96, 184, and 187
2. Civil code Articles 14, 15, 16, 17, 815, 816, 818, 819, 829, 1039, 1319, and 1753
3. Penal code Article 2
4. Corporation code Section 133 – Doing business without a license
5. Constitution Article IV and Article 5, Section 1
6. Rules of court Rule 14 and 39, Section 48, Rule 131, Section 3 (n), 132, Section 35.
Territoriality Principle

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 law and treaty stipulations (NCC, Article 14).

Nationality principle

Laws relating to family rights and duties or to the status, condition, and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad (NCC, Article 15).

Lex rei sitae

Real property as well as personal property is subject to the law of the country where it is situated
(NCC, Article 16).

Lex Loci Celebrationis

The forms and solemnities of contracts, wills, and other public instruments shall be governed by the
laws of the country in which they are executed (NCC, Article 17).

JURISDICTION
GR: It is the right of a State to exercise authority over persons and things within its boundaries.

Rules to follow when the court is confronted with a case

involving a foreign element

If the court is faced with a case involving a foreign element, it should first determine:

1. Whether it has jurisdiction over the case

2. If it has no jurisdiction, it should be dismissed on that ground;
3. If it has jurisdiction, the court will determine whether it should assume jurisdiction, or it
should dismiss the case on the ground of forum non-convenience;
4. Once the court has determined it has jurisdiction over the case, it will next determine
whether to apply the internal law of the forum or apply the proper foreign law.

Forum Non Conveniens

It refers to the refusal to assume jurisdiction because it would prove inconvenient for the forum.
Grounds for dismissal of the case on the basis of forum non
conveniens

1. Evidence and witnesses may not be readily available in the forum;

2. Court dockets of the forum are already clogged that would hamper the speedy
administration of justice;
3. The matter can be better tried and decided in another forum;
4. To curb the evils of forum shopping;
5. The forum has no particular interest in the case, as when the parties are not citizens of the
forum or are residents elsewhere;
6. Inadequacy of the local judicial machinery in effectuating the right sought to be enforced;
7. Difficulty in ascertaining the foreign law applicable.

When can internal or domestic law be applied

1. Law of the forum expressly so provides in its conflicts rule;

2. Proper foreign law has not been properly pleaded and proved;
3. Case involves any of the exceptions to the application of the foreign law.

Instances:

1. When the foreign law, judgment or contract is:

a) Contrary to sound and established policy of the forum
b) Contrary to almost universally conceded principles of morality (contra bonus mores)
c) Involves procedural matters
d) Purely fiscal or administrative matters
e) Involves real or personal property situated in the forum
2. When the application of the foreign law, judgment or contract:
a) May work undeniable justice to the citizens/residents of the forum
b) May work against vital interests & national security of the state of the forum

Doctrine of Processual Presumption of law

When the proper foreign law has not been properly proved, the court of the forum may presume that
said foreign law is the same as the law of the forum that said court can now apply. It applies when the
foreign law is not alleged or if alleged, it is not proved.

Where a foreign law is not pleaded or, even if pleaded, is not proved, the court of the forum may
presume that the foreign law applicable to the case is the same as the local or domestic law.

Foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take
judicial notice of them. Like any other fact, they must be alleged and proved.

A Philippine court may take judicial notice of a foreign law, as when the laws are already within its
actual knowledge, such as when they are well and generally known or they have been actually ruled
upon in other cases before it and none of the parties concerned claim otherwise (PCIB v. Escolin, G.R
Nos. L-27860 & 27896, September 30, 1975)
CHOICE OF LAW
Questions that Choice-of-applicable law seeks to answer

Important questions that choice-of-law problems seeks to answer

1. What legal system should control a given situation where some of the significant facts
occurred in two or more states; and
2. To what extent should the chosen system regulate the situation. (Saudi Arabian Airlines v.
CA, G.R. No. 122191, October 8, 1998)

NOTE: Foreign law has no extraterritorial effect and any exception to this right must be traced to the
consent of the nation.

Theories on why the foreign law may be given effect

1. Theory of Comity - The application of foreign legal systems in cases involving foreign element is
proper, otherwise, the nonapplication would constitute a disregard of foreign sovereignty or lack of
comity towards other States.

Comity - It is the recognition which one state allows within its territory to the legislative, executive, or
judicial acts of another state, having due regard both to international duty and convenience and to
the rights of its own citizens or of other persons who are under the protection of its laws (Agpalo.
2004).

Kinds: a. Comity based on reciprocity b. Comity based on the persuasiveness of the foreign judgment

2. Theory of Vested Rights - Courts enforce not the foreign law or foreign judgment but the rights
vested under such law or judgment. Thus, rights acquired in one country must be recognized and
legally protected in other countries. The forum will not apply the foreign law but will simply recognize
the right vested by said law.

3. Theory of Local Law - This involves the appropriation of a foreign rule by the State of the forum and
transforming it into a domestic rule. A foreign law is applied because our own law, by applying a
similar rule, requires us to do so, as if the foreign law as become part of our internal or domestic law.

4. Theory of Harmony of Law - Identical or similar problems should be given identical and similar
solutions, thus resulting in harmony of laws. The application of the same or similar solution prevents
the bad practice of forum shopping.

5. Theory of Justice - Choice of law should be determined by considerations of justice and social
expediency and should not be the result of mechanical application of the rule or principle of selection.

CONFLICT RULES
These are a provision found in our own law which governs a factual situation possessed of a foreign
element. It is usually expressed in the form of an abstract proposition that a given legal question is
governed by the law of a particular country (which may be an internal law or the proper foreign law),
to be ascertained in the manner indicated in the provision (Sempio-diy, 2004).
Kinds of conflict rules

1. One-sided rule – indicates when the Philippine law will apply,

e.g., Article 15 and Art. 818 of the Civil Code only apply to Filipinos

2. All-sided rule – indicates whether to apply the local law or the proper foreign law.

Characterization (Doctrine of Qualification or Classification)

It is the process of deciding whether or not the facts relate to the kind of question specified in a
conflits rule (Saudi Arabian Airlines v. CA, G.R. No. 122191, October 8, 1998).

Steps in characterization

1. The determination of facts involved;

2. The characterization of factual situation;
3. The determination of conflicts rule which is to be applied
4. The characterization of the point of contact where the connecting factor;
5. The characterization of the problem as procedural or substantive;
6. The pleading and proving of the proper foreign law and
7. The application of the proper foreign law to the problem (Paras, 1990).

Q: A (Iraqi government) granted B (Domestic corp.) a service contract for the construction of build-ing
in Iraq. The bond was guaranteed by C (Domestic corp.). When it was ascertained that B will not be
able to finish the project in the scheduled agreement, C paid the bond for failure of B to complete
such building. When C was claiming reimbursement, B refused to pay. Thus a case was filed. Should
Philippines law govern in determining B's default?

A: YES. It must be noted that the service contract between SOB and VPECI contains no express choice
of the law that would govern it. In the United States and Europe, the two rules that now seem to have
emerged as "kings of the hill" are (1) the parties may choose the governing law; and (2) in the absence
of such a choice, the applicable law is that of the State that "has the most significant relationship to
the transaction and the parties." Another authority proposed that all matters relating to the time,
place, and manner of performance and valid excuses for nonperformance are determined by the law
of the place of performance or lex loci solutionis, which is useful because it is undoubtedly always
connected to the contract in a significant way.

In this case, the laws of Iraq bear substantial connection to the transaction, since one of the parties is
the Iraqi Government and the place of performance is in Iraq. Hence, the issue of whether respondent
VPECI defaulted in its obligations may be determined by the laws of Iraq. However, since that foreign
law was not properly pleaded or proved, the presumption of identity or similarity, otherwise known
as the processual presumption, comes into play. Where foreign law is not pleaded or, even if pleaded,
is not proved, the presumption is that foreign law is the same as ours (Philippine Export and Foreign
Loan Guarantee Corporation v. V.P. Eusebio Construction, Inc. Et Al, G.R. No. 140047, July 13, 2004).

Q: A, a foreign corporation, won a collection case in Japan against B, a domestic corporation doing
business in Japan. A filed a suit for enforcement of the judgment in the RTC of Manila. B assails the
judgment on the ground that the Japanese court did not validly acquire jurisdiction over B’s person
since B was served with summons in the Philippines and not in Japan. Is B correct?
A: NO. It is settled that matters of remedy and procedure such as those relating to the service of
process upon a defendant are governed by the lex fori or the internal law of the forum. In this case, it
is the procedural law of Japan where the judgment was rendered that determines the validity of the
extraterritorial service of process on B. As to what this law is a question of fact, not of law. It may not
be taken judicial notice of and must be pleaded and proved like any other fact. B did not present
evidence as to what that Japanese procedural law is and to show that under it, the assailed
extraterritorial service is invalid. Accordingly, the presumption of validity and regularity of the service
of summons and the decision thereafter rendered by the Japanese court must stand. (Northwest
Orient Airlines, Inc. v. Court of Appeals and C.F. Sharp & Company Inc., G.R. No. 112573, February 9,
1995)

CITIZENSHIP

Personal law

The law which attaches to a person wherever he may go and generally governs his status, capacity,
condition, family relations, and the consequences of his actuations (Sempio-Diy, 2004).

Theories of personal law

1. The Nationality Theory or Personal Theory – the status and capacity of a person is determined by
the law of his nationality or national law (Sempio-Diy, 2004).

NOTE: The Philippines follows the Nationality Theory.

2. Domiciliary Theory or Territorial Theory – the status and capacity of a person is determined by the
law of his domicile (Ibid.).

3. Situs or eclectic theory – the particular place or situs of an event or transaction is generally the
controlling law (Ibid.).

Problems in applying the nationality principle in dual or multiple citizenship

It arises from the concurrent application of jus soli and jus sanguinis at birth or from a refusal of
certain States to accept a full application of the doctrine of expatriation, from marriage, or from a
formal and voluntary act.

1. In matters of status, a person is usually considered by the forum as exclusively its own national. His
additional foreign nationality is disregarded. 2. In case litigation arises in a third country, the law most
consistently applied is that of the country of which the person is not only a national but where he also
has his domicile or habitual residence, or in the absence thereof, his residence.

Theory of effective nationality

A third state shall recognize exclusively in its territory either the nationality of the country of which
one is habitually and principally a resident, or the nationality of the country with which in the
circumstances one appears to be in act most closely connected (Hague Convention on Conflict
Nationality Lawes, Art. 5).

Q: On February 8, 1961, Lau Yuen Yeung applied for a passport visa to enter the Philippines as a
non-immigrant. She stated that she desired to take a pleasure trip to visit her great grand uncle. On
the date of her
arrival, Asher Cheng filed a bond of P1,000 to undertake that Lau would depart the Philippines on or
before the expiration of her authorized period of stay or within the period as in the discretion of the
Commission of Immigration might properly allow. After repeated extensions, Lau was allowed to stay
in the country until February 13, 1962. On January 25, 1962, she contracted a marriage with Moy Ya
Lim Yao, a Filipino citizen. Does Lau, as an alien woman, may be deemed a citizen of the Philippines by
virtue of her marriage to a Filipino citizen?
A: YES. An alien woman may be deemed a citizen of the Philippines by virtue of her marriage to a
Filipino citizen only if she possesses all the qualifications and none of the disqualifications specified in
the law, because these are the explicit requisites provided by law for an alien to be naturalized.
Section 15 of the Revised Naturalization Law (Commonwealth Act No. 473) provides that “Any woman
who is now or may hereafter be married to a citizen of the Philippines, and who might herself be
lawfully naturalized shall be deemed a citizen of the Philippines.” Section 15 was obviously to accord
to an alien woman, by reason of her marriage to a Filipino, a privilege not similarly granted to other
aliens (Moy Ya Lim Yao “Alias” Edilberto Aguinaldo Lim And Lau Yuen Yeung v. Commissioner of
Immigration, G.R. No. L-21289 October 4, 1971).

Q: Ernesto S. Mercado and Eduardo Manzano were candidates for vice mayor of the City of Makati.
Manzano won the elections, however his proclamation was suspended because a certain Ernesto
Mamaril filed a petition for the disqualification and alleged that Manzano was not a citizen of the
Philippines but of the US. COMELEC 2nd Division granted the petition and cancelled the certificate of
candidacy on the grounds that dual citizens are disqualified from running any elective position under
Sec.40 of the LGC. But, COMELEC en banc reversed the said decision. It found that Manzano acquired
US citizenship by operation of the US Constitution. He was also a natural born Filipino Citizen by
operation of 1935 Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of 6 his parents brought him in the country and registered his as an alien, but this however did
not result in the loss of Phil. Citizenship, as he did not renounce Phil. Citizenship and did not take oath
of allegiance to the US. A the age of Majority, Manzano registered himself as a voter and voted in the
elections of 1992, 1995 and 1998, which effectively renounce the US Citizenship under American Law.
Is Dual citizenship a ground for disqualification?

A: NO. Dual citizenship is different from dual allegiance. The phrase “dual citizenship” in RA 7160 must
be understood as referring to “dual allegiance”, and persons with dual citizenship do not fall under
this disqualification. Dual Citizenship is involuntary, it arises out of circumstances like birth or
marriage, while dual allegiance is a result of a person’s volition. It is a situation wherein a person
simultaneously owes, by some positive act, loyalty to 2 or more states.

Also, Manzano upon filing his certificate for candidacy have elected Phil, Citizenship thus terminating
his dual citizenship. He made these statements: “I am a Filipino citizen…. Natural born. I am not a
permanent resident of, or immigrant to, a foreign country. I am eligible for the office I seek to be
elected…I will support the Constitution of the Philippines and will maintain true faith and allegiance
thereto…”, thus the filing sufficed to renounce his American citizenship (Mercado v. Manzano &
COMELEC, G.R. No. 135083 May 26, 1999).

Q: Teodoro Cruz was born in San Clemente, Tarlac, of Filipino parents making him a natural-born
citizen of the Philippines. However, respondent Cruz was enlisted in the United States Marine Corps
and, without the consent of the Republic of the Philippines, took an oath of allegiance to the United
States. As a consequence, he lost his Filipino Citizenship by his naturalization as a U.S. citizen in
connection with his service in the U.S. Marine Corps. Thereafter, respondent Cruz reacquired his
Philippine citizenship through repatriation under Republic Act No. 2630. He ran for and was elected as
the Representative of the Second District of Pangasinan in the 1998 elections. He won over Antonio
Bengson III, who was then running for reelection. Subsequently, Bengson filed a case with House of
Representatives Electoral Tribunal (HRET) claiming that respondent Cruz was not qualified to become
a member of the House of Representatives since he is not a natural-born citizen as required under
Article VI, Section 6 of the Constitution. The HRET dismissed the petition for quo warranto and
declared respondent Cruz was duly elected as a Representative. The HRET also denied Bengson’s
motion for reconsideration. Is Cruz, a natural-born Filipino who became an American citizen, can still
be considered a natural-born Filipino upon his reacquisition of Philippine citizenship?

A: YES. Cruz can still be considered a natural-born Filipino upon his reacquisition of Philippine
citizenship. He may have lost his Filipino citizenship when he rendered service in the Armed Forces of
the United States. However, he subsequently reacquired Philippine citizenship under R.A. No. 2630,
Section 1, which provides: ”Any person who had lost his Philippine citizenship by rendering service to,
or accepting commission in, the Armed Forces of the United States, or after separation from the
Armed Forces of the United States, acquired United States citizenship, may reacquire Philippine
citizenship by taking an oath of allegiance to the Republic of the Philippines and registering the same
with Local Civil Registry in the place where he resides or last resided in the Philippines. The said oath
of allegiance shall contain a renunciation of any other citizenship”. Cruz upon taking the required
oath of allegiance to the Republic and having registered the same in the Civil Registry of Mangatarem,
Pangasinan in accordance with the aforecited provision, is deemed to have recovered his original
status as a natural-born citizen, a status which he acquired at birth as the son of a Filipino father. It
bears stressing that the act of repatriation allows him to recover, or return to, his original status
before he lost his Philippine citizenship (Bengson v. HRET and Cruz, G.R. No. 142840. May 7, 2001).