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62473101-Up-Persons1

62473101-Up-Persons1

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Published by: CB Domz Ando Duyogan Jr. on Oct 16, 2012
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CIVIL LAW REVIEW
 Notes, Cases and Commentaries on Persons and Family Relations
 
Part I
Compiled by Lianne Tan
Edited and Updated by Rodell A. Molina
This reviewer follows the outline of Prof. Araceli Baviera in Civil Law Review, except on Articles 1 to 54 of the Family Code which follows the outlineof Prof. Ruben Balane. Lectures of Prof. Ruben Balane as well as commentaries from former Senator Arturo Tolentino's book are found in this work.
-- RAM
 ____________________ 
PHILIPPINE CIVIL LAW
INTRODUCTIONTolentino, CIVIL CODE OF THE PHILIPPINES, Commentaries and Jurisprudence, Vol. 1(hereinafter Tolentino):
Concepts of Law.--
The term
law
may be understood in 2 concepts: (1) in the general or abstract sense, and (2) in the specific or material sense.In the general sense, law is defined as the "science of moral rules, founded on the rationalnature of man, w/c govern his free activity, for the realization of the individual and social ends, of a nature both demandable and reciprocal." (Sanchez Roman.)In the specific sense, it is defined as "a rule of conduct, just, obligatory, promulgated bylegitimate authority, and of common observance and benefit." (ibid.)
Foundation of Law.--
Law rests upon the concepts of order, co-existence, and liberty.
Characteristics of Law.--
(1) it is a rule of human conduct; (2) promulgated by competentauthority; (3) obligatory; and (4) of general observance.
General Divisions of Law.--
Law in its most comprehensive sense has been divided into 2general groups: divine law and human law. By
divine law
is meant that in w/c God himself is thelegislator who has promulgated the law; by
human law
is meant that w/c is promulgated by manto regulate human relations.
 
CIVIL LAW REVIEW
Notes, Cases and Commentaries on Persons and Family Relations
Edited and Updated by RAM
Human law is in turn divided into 2 main classes:
 general or public law
and
individual or private law
. These in turn are sub-divided as follows:I. General or public law: (a) International law; (b) Constitutional law; (c)Administrative law; (d) Criminal law; (e) Religious law.II. Individual or private law: (a) Civil law; (b) Mercantile law; (c) Procedural law.
Kinds of Specific Law.--
Law, in the specific sense, is generally classified into
mandatory, prohibitory,
and
 permissive
. In one sense, every law commands, bec. it is obligatory; but itcommands in 3 different ways: (1) it commands that something be done, in w/c case it ismandatory; (2) it commands that something should not be done, in w/c case it is prohibitory; and(3) it commands that what it permits to be done should be tolerated or respected, in w/c case it is permissive.
Codification of Laws.--
A
code
is a collection of laws of the same kind; a body of legal provisions referring to a particular branch of law.
 Reasons for codification:
(1) the necessity of simplifying and arranging the many juridical rules scattered in several laws and customs; (2) the necessity of unifying variouslegislations in the same country; and (3) the necessity of introducing reforms occasioned bysocial changes.Prof. Ruben Balane (hereinafter Balane): According to the Code Commission, 25% of the articlesin the NCC are exact reproductions of the Spanish Civil Code (OCC); 32% were modified or amended. These comprised 57% of the Code on Persons, ObliCon, Property and Succession.Forty-three per cent (43%) are new. These deal w/ Special Contracts, Quieting of title, Trusts,Prescription and some parts in Torts. The accuracy of these figures are doutful.There are two great models of a modern civil code, the French Civil Code (Code Napoleon) and the German Civil Code {BGB or 
 Buogeoliches Gesetzbuch
[
 Beuo
w/c means"town," "that w/c has reference to a citizen;"
buch
w/c means "book;" BGB means "a lawbook governing citizens."]
Changes from the Old Civil Code in the New Civil Code:
1. Creation of new rights.-- E.g., in the case of spurious children who were given rightsfor the first time (successional right, right of support, etc.) New provisions on Human Relations(Articles 33-36), Reformation of Instruments (Art. 1359), two additional quasi-contracts (Art.2174 and 2175), moral and nominal damages (Arts. 2217 and 2221)2. Adoption of new solutions like Art. 461 (change in the river course), Art. 1256(consignation), Art. 1658 (lease.)3. Clarification of old provisions like Art. 275 (Legitimation), Art. 992 (illegitimatechildren's right to inherit
ab intestato
), Art. 1410 (void contracts)4. Omission of certain subjects, e.g., dowry w/c is very western. In the Phils., we havethe opposite of dowry, the
bigay-kaya.
These contracts were abolished-
censos, usus
and
habitation
(subsumed in easement and lease.)
Is the New Civil Code better than the Old?--
Yes. As a whole. An example of animprovement in the NCC is in defective contracts. The NCC classifies them into rescissible,voidable, unenforceable and void.
PAGE 2
 
CIVIL LAW REVIEW
Notes, Cases and Commentaries on Persons and Family Relations
Edited and Updated by RAM
Defects in the New Civil Code.--
There is defect in the basic structure, e.g., in modes of acquiring ownership. Six are given a separate title except Tradition w/c is found in the provisionson Sales.Another defect is on the vice of consent found in the title of Contracts. It should have been in the preliminary title bec. the same is also applicable to marriage, wills-- all juridicaltransactions. The same is also true w/ respect to the provisions on degrees of relationship. Whylimit it to succession. It should be placed in the preliminary title.Other defects are the treatment of donation as an 'act' instead of a 'contract,' w/c is what isreally is; defect in judicious borrowings.
Definition of Civil Law.--
Civil law has been defined
 
as "the mass of precepts w/c determine andregulate the relations of assistance, authority and obedience among the members of a family, andthose w/c exist among members of a society for the protection of private interests." (SanchezRoman.)
Art. 1. This Act shall be known as the "Civil Code of the Philippines."
Tolentino:
Civil Code defined.--
A civil code is a collection of laws w/c regulate the privaterelations of the members of civil society, determining their respective rights and obligations, w/reference to persons, things, and civil acts.
Sources of the Civil Code:
(1) The Civil Code of 1889;(2) The codes, laws, and judicial decisions, as well as the works of jurists of othecountries, such as Spain, the various states of the American Union, etc.;(3) Doctrines laid down by the SC of the Phils.;(4) Filipino customs and traditions;(5) Philippine statutes, such as the Marriage Law, the Divorce Law, the Code of Civ.Proc. and the Rules of Court.(6) The Code Commission itself (7) Works of jurists and commentators of various nations (added by Jurado, CIVILLAW REVIEWER.)
Art. 2. Laws shall take effect after fifteen days following the completion of theirpublication either in the Official Gazette or in a newspaper of general circulation in thePhilippines, unless it is otherwise provided. (as amended by EO 200.)
Balane: The Civil Code took effect on August 30, 1950 according to the case of Lara v. delRosario, one year after its publication, reckoned from the date of actual releaseBAVIERA CASE:
UMALI V. ESTANISLAO
[209 S 446 (1992)] - Reiterating Tanada v. Tuvera, The clause "unless it isotherwise provided" refers to the date of effectivity and not to the requirement of publication itself whichcannot in any event be omitted. This clause does not mean that the legislator may make the law effectiveimmediately upon approval, or on any other date without its previous publication.Publication is indispensable in every case, but the legislature may in its discretion provide that theusual fifteen (15) day period shall be shortened or extended.PAGE 3

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