2010-05-17 http://cybaroperations.wordpress.

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,

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).

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

40 Phil 205) .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.

76 Phil. Misa. may be made applicable to cases pending at the time of its enactment . Remedial Statutes. (4) in case of laws interpreting others.Article 4. therefore. and (2) when the retroactive effect of the statute| will constitute an impairment of the obligation of contract. It is one which changes or injuriously affects a present right | by going behind it | and giving efficacy to anterior circumstances t defeat it. or attaches a new liability. Director of Lands. -Statutes can have retroactive effect in the following cases: (1) when the law itself so expressly provides. in respect to transactions or considerations | already past (1 Tolentino 22. – A retroactive law | is one intended to affect transactions | which occurred. or rights which accrued. Jur. citing Aguillon vs. The rule that a statute will be given retroactive effect if it so expressly provides. so long as it does NOT affect or change | vested rights (1 Tolentino 24. before it became operative. 492-493). has two EXCEPTIONS with a constitutional basis: (1) when the retroactivity of a penal statute | will make it an ex post facto law. 22. (3) in case of curative statutes. Laurel vs. citing 50 Am. which effect they did NOT have when the right accrued. Same. Application of Article. (EXCEPTION) UNLESS the contrary is provided. in view of the law in force | at the time of their occurrence. even though at the time of the enactment of such laws | final sentence has already been rendered (Art. In every case of doubt. Revised Penal Code). – 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. 372). A remedial statute. In these two cases. 220). – All statutes are to be construed | as having only a prospective operation. and which ascribes to them effects NOT inherent in their nature. -Penal laws shall have a retroactive effect | insofar as they favor the accused | who is NOT a habitual criminal. Same. 17 Phil. It creates a new obligation | and imposes a new duty. 506. EXCEPTIONS to Rule. Unconstitutional Provisions. (2) in case of remedial statutes. Concept of Retroactive Law. 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. and (5) in case of laws creating new rights. Penal Statutes. the doubt must be resolved against the retrospective effect (1 Tolentino 23 citing Montilla vs. Same. Same. Same. because it would violate the Constitution. Laws shall have no retroactive effect. 24 Phil. the provision giving the statute a retroactive effect | will be held inoperative. Agustinian Corporation.

which we submit is applicable in this jurisdiction. Thus. The principle of retroactivity of such statutes. 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. They operate on conditions already existing. [i.G. provided that it does NOT prejudice another acquired right of the same origin (Bona vs. Hosana vs.(Enrile vs. legislation may be retroactive in character. Acts executed against the provisions of mandatory or prohibitory laws | shall be VOID.). Article 5. it has been held that a judgment which was correct when rendered. Interpreting Statutes. and the changes are applicable to existing causes of action and pending cases. they CANNOT violate rights of third persons. 38 Phil. holding that a particular tax law was unconstitutional. 4903) This rule is expressly contained in the transitory provisions of the Civil Code. Ilegay.C. 98 Phil. may be reversed on account of an amendment enacted pending the appeal. They CANNOT affect a judgment that has become final. 276. – Curative statutes are those which undertake to cure errors and irregularities. Laws Creating New Rights. et al.e. vs. Bustamante. vs. 741. citing 5 Von Tuhr 6-8). Ilegay (S. but if a right be declared for the first time by a new law it shall take effect from the time of such declaration. forms of proceedings. even though it has arisen from acts subject to the former laws. and has even provided a penalty. Briones. Diomano. It is possible that the legislator has prohibited the performance of a particular act. Same. (EXCEPTION) EXCEPT when the law itself authorizes their validity. acts of public officers. Curative Statutes. 49 O. and its immediate enforcement is of public interest (1 Colin & Capitant 125). and are necessarily retroactive in operation. 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. Rules of evidence may be changed at any time. – “Law” here refers to the juridical order in its totality. Laico. one of which is that the nullity of the act | may bring about harmful consequences | which the law does NOT sanction (1 Tolentino 27. but they shall NOT affect judicial decisions which have become final in the meantime. with respect to remedies. Cayas. by which the defect in the law is cured. – Similar to curative statutes are those intended to clarify doubts or interpret an existing law. 107.] The period of extinctive prescription may be shortened | even in relation to actions | the rights to which has already accrued. Such a law is made to insure the better administration of justice. 64 Phil. and limitation of action. Nevertheless. Court of First Instance. Same. et al. Same. 574. there are limitations on the extent of retroactivity of curative laws. – 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. Thus. 56 Phil. without destroying its validity in case it is done in spite of the prohibition. 36 Phil. thereby validating judicial or administrative proceedings. (4a) When Law Authorizes Validity. Obviously.” An identical provision is found in the code of Colombia (article 14). 144). Guevarra vs. Such character of the prohibitory law may be inferred from various circumstances. Manresa enumerates three cases | which may fall under this EXCEPTION: .

. to honor. public policy. Examples: the right to life. Article 6. the right to teach and to learn freely. the children born before the annulment are considered legitimate (ibid. The subjects of rights are persons. It may spring from the will of man or independently of such will. or good customs. and arise from the fact of being a man. (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. physical or spiritual. The marriage is valid. when a marriage is annulled. – Every right has three elements: [1] the subjects. integrity. They are sometimes called human rights. intellectual. [2] the object. the right to write and to speak. -Rights may be classified into political and civil. There are two kinds of subjects: (1) the active subject. 1 Manresa 64-65). Elements of Right. They are such things and services which are intended for the satisfaction of human wants. and moral aspects.(1) Where the violation does NOT refer to an essential matter. the former [political] include those referring to the participation of persons in the government of the State. Thus. and development. while the latter [civil] include all others. in its physical. Kinds of Rights. The efficient cause is the fact that gives rise to the legal relation. Civil rights may be further classified into the following: (1) The rights of personality. and to individual liberty. to physical security. UNLESS the waiver is contrary to law. (3) The law may declare the nullity of an act. the law considers that nullity may be more disadvantageous than validity. and indeterminate (or the whole world) in what are known as real rights. or prejudicial to a third person with a right recognized by law. Things and services constitute the object of rights. although the parties who acted contrary to what is required by law may become criminally liable. These include all rights intended to protect the human personality in its existence. and (2) the passive subject. and [3] the efficient cause. 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. morals. the right to . fortuitous event is independent of such will. where a marriage is solemnized without one or more formal requirements. but at the same time recognize its effects as legally existing/ For example. (EXCEPTIONS) Rights may be waived. rights exist only in favor of persons. who is duty-bound to suffer its enforcement. public order. The passive subject is an indeterminate person in what are known as personal rights. For instance. who is entitled to demand the enforcement of the right.

Real Rights. (3) Renunciation must be made | in a clear and unequivocal manner. But a person may exempt himself from an obligation which is inherent in a right. if he suffers some loss. and personal rights. Same. obligations CANNOT be renounced.work. it is obvious that the right is merged | in the owner of the property. citing Valverde 262-264). 1 Colin & Capitant 246-248) Renunciation or Waiver. benefit. he alone is to blame. upon the renunciation of such right. etc. although the rights arising therefrom may be renounced. The right. if there is any. (3) If the full ownership is renounced. Same. The formality required by law for such renunciation. Effect of renunciation: (1) If the right renounced is a real right distinct from ownership. – Waiver is defined as the relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. and as the sphere of social solidarity expands. the thing becomes res nullius | and may be acquired by occupation (1 Tolentino 31. such as in co-ownership. because these are superior to the individual will (1 Tolentino 30. citing 1 Oyuelos 15-16). These rights increase in number as humanity progresses. or advantage must exist at the time of waiver. Voluntary choice is the essence of waiver. But the renunciation must NOT prejudice the rights of others | who have NOT intervened | in such renunciation. such as usufruct. – Generally. (1) He must actually have the right | which he renounces. (2) If on the same thing | there are various holders of a real right. There is implied waiver. Same. Same.A person can renounce | what has been established in his favor | or for his benefit. (2) He must have the capacity | to make the renunciation. Reason for Article. Obligations. and there must be an intention to relinquish it. . These have property for their object. Laws are repealed | only by subsequent ones. . the renunciation by one of his rights | will proportionately increase the shares of the others. Same. Same. easement or mortgage. Same. while the renunciation of a personal right requires the consent of the debtor (as in case of remission or condonation). These include all the rights of a person as a member of a family. – According to Valverde. should be followed. They are of two kinds: real rights.. there must be actual or constructive knowledge of such existence. Same. Express or Implied. – Laws CANNOT be renounced. much less can it impair | public order or interest. mortgage. if such waiver is contrary to public interest or public order. or to the rights of a third person. Requirements of Waiver. Prohibited Waiver. because he prejudices nobody thereby. if no particular formality is required. Same. to morals or good customs. They tend to the economic satisfaction of men. when from the acts or conduct of a party the intention to relinquish a right may be reasonably inferred. such as ownership. Article 7. such as the right to collect a debt (1 Salvat 35. (3) Patrimonial rights. etc. (2) Family rights. And the right itself CANNOT be waived. the renunciation of a real right is unilateral and depends upon the exclusive will of the owner of the right. -A waiver may be express or implied. the renunciation may even be tacit. and are measurable pecuniarily. provided the intent to renounce should be clearly established.

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

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

he certainly can formulate and declare the law | as applied concretely to the case before him. in the light of changing conditions. citing Helvering vs. is flexible. obscurity or insufficiency of the laws. citing 1 Camus 38). 132 N.S. inasmuch as the sole function of our courts | is to apply or interpret the laws (1 Tolentino 36-37.” (1 Tolentino 37-38. however. Because of this.Decisions NOT Source of Law. to the changing conditions of life and society. Same. – The ignorance of the court | or his lack of knowledge | regarding the law | applicable to a case | submitted to him for decision. – The doctrine of stare decisis | enjoins adherence | to judicial precedents. because when there is no law punishing an act. – Jurisprudence. A law established by jurisprudence | would be a judge-made law. The doctrine. it CANNOT create law. 280). 19. the court should clarify it | in the light of the rules of statutory construction. rendered inadequate | by time and circumstances. ‘Stare decisis is a principle of policy | and NOT a mechanical formula of adherence | to the latest decision. – If the law is vague or obscure. 444) Article 9. citing 1 Valverde 194-196) Doctrine of Stare Decisis. because that would be an invasion of legislative power. Burckhart. 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. the courts may rightly depart from it. and his NOT knowing where to find the law | relative to the case. Courts are NOT limited to the automatic and mechanical function of interpreting the law. That decision becomes a judicial precedent | to be followed in subsequent cases | by all courts in the land. and (2) To adapt and adjust | rigid and inflexible provisions of law. Obscurity or Deficiency of Law. the fact that the court does NOT know the rules | applicable to a certain matter. which is juridically impossible | in our governmental system | in which there is separation of powers. so that the law may accomplish | its social mission. Role of Jurisprudence. intrinsically sounder. capable of receiving impressions from without. . when such adherence involves collision | with a prior doctrine | more embracing in its scope. jurisprudence must necessarily be flexible. It requires courts in a country | to follow the rule established | in a decision of the supreme court thereof. citing Prall vs. -While a judge CANNOT create abstract rules of law.E. it should be deemed settled | and closed to further argument (1 Tolentino 37. so that when. – This article does NOT apply to criminal prosecutions. Hallock. in our system of government | CANNOT be considered as an independent source of law. and verified by experience. The doctrine of stare decisis | is based on the principle that | once a question of law has been examined and decided. however reprehensible the act may seem to the judge (1 Tolentino 38) Duty of Court to Decide. 309 U. the case must be dismissed. however recent and questionable. 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. No judge or court shall decline to render judgment by reason of the silence. Applicability of Article. a rule has ceased to be of benefit and use to society. 299 Ill. are NOT reasons for dismissing the case | without deciding the issues (1 Tolentino 38).

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

NOT provided for by law. Sanchez Roman sustains the view. ambiguous and contradictory clauses shall be construed in a manner most in conformity with the general spirit of legislation and natural equity. so that it may tip the scales in favor of right and justice when the law is doubtful or .” (1 Tolentino 42. the general rule should be | to apply the custom of the place | for the performance or consummation of the juridical act (1 Tolentino 41.” A similar provision in the Colombia code (article 32) is as follows. What Custom Applied. This principle should be the basis for determining conflicts | between customs of different places. intent of the lawmaker) Source of Article. the Code Commission said: “Though the foregoing is also an unquestionable rule. those high standards | which serve as a foundation to positive law. while the latter is a conscious creation. When the places | where the court is located | and the domicile of the parties is different. the latter is written law (1 Tolentino 41. it is to be presumed that | they knew the custom of their domicile | and NOT that of the court’s location. – This phrase has NOT received a unanimous interpretation among writers on civil law. Manresa believes that | there is no reason for making a preference. “In cases where all rules of interpretation fail. – Custom differs from law | in its origin and form. citing 2 Sanchez Roman 78). manifested in solemn and official form. the former is a spontaneous. As to form. while law comes from the governmental power of the State. If the domiciles of the parties are different | and they have different customs. acts according to the custom of the place. however. or to sufficient reasons. There are some. citing 1 Castan 69) Same. In case of doubt | in the INTERPRETATION | or application of laws. or those principles of justice | beyond the variability and uncertainty of facts. citing 2 Sanchez Roman 102) XXX Article 10. those rules accepted by jurisconsults | which constitute real axioms | for all those who intervene in juridical life. which provides: “Where the statute refers the judge to his discretion or estimation of the circumstances. led by Valverde and Sanchez Roman. custom is tacit. and which form a law | superior to that which is enacted. being manifested in acts or usages. that in the absence of reasons for preference. who define general principles of law as “universal juridical standards | dictated by correct reason. it is presumed that | the lawmaking body intended right and justice | to prevail. and the matter should be treated | as if there is no custom (1 Tolentino 41. yet it is necessary to embody it in this Code. and each place has a different custom. The former is unwritten law. while law is express. – It is to be presumed that a person who performs a juridical act. citing 1 Manresa 82). custom comes from the society.” In justifying the inclusion of the present article in the Code. As to origin.Same. – Taken from article 4 of the Swiss code. General Principles of Law. Distinguished from Law. (legal presumption. there he must decide according to right and equity.

When the laws speak of years. according to the rules of evidence. it shall be understood that years are of three hundred sixty-five days. and there is no doubt as to its meaning. Equity in Application of Law. If months are designated by their name. from business connections. equity is justice sweetened with mercy. (n) (obligatory force. . A CUSTOM must be proved as a fact. to adapt the rigid precept of law to the social life (1 Tolentino 45. 18 La. months. months. 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. Its mission is to temper the rigor of positive law. 78). public order or public policy shall NOT be countenanced. this ignorance is. When the law is clear. therefore is to seek and follow the intention of the legislator rather than the barer legal provision. citing 1 Borja 375). the judge CANNOT go above the law but must apply it. citing 1 Valverde 211) Article 11. – 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.obscure. The Courts will NOT recognize the force of a custom in opposition to positive law (1 Tolentino 45) Article 12. p. 1 Valverde 185). and when all other rules of interpretation fail (1 Tolentino 44. sometimes limiting its excessive generality. of thirty days. citing 1 Camus 32-33. – This is a restatement of a principle generally accepted even without specific provision in the law (1 Tolentino 45. positive evidence of its non-existence (The Ship Success. they shall be computed by the number of days | which they respectively have. As Justinian said. in some sense. days. Applicability of Article. – Equity is an attribute of justice. prohibition) Source of Article. Ann. even if it does NOT conform to his concept of right and justice (1 Tolentino 44. Non-existence of Custom. and at times extending it to supply deficiencies. days or nights. Equity may correct and modify the bare written law. – The rule stated in this article is to be applied only in case of doubt. its purpose. Application of Rule. 1) Article 13. have the best means of knowing it. and there can be no justice if the application of the law is NOT made with equity. and nights from sunset to sunrise. – When the alleged custom or usage is NOT known to those who. of twenty four hours. CUSTOMS which are contrary to law. citing 1 Von Tuhr 64).

even if the latter should be a Sunday or a holiday. Meaning of “Month”. when the act is to take place at a specified future date (U. but strictly in a legal sense. This is in consonance with the rule that the contract is the law between the contracting parties. This.” 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. 53 Phil. NOT required by law. as a period composed of thirty days (National Marketing Corporation vs. means a period of seven days. and if the last month has NOT so many days. 18). it means a period of seven consecutive days without regard to the day of the week on which it begins. the first day shall be excluded. or default after which the designated period of time begins to run is NOT to be included. applies only to a period of time “prescribed or allowed by the Rules of Court. – This article does NOT define what is a “week. to Rule 28 of the Rules of Court. that the term “week. but NOT identical. or rule of court. by order of a court. 27 Phil. in which event the time shall run until the end of the next day which is neither a Sunday nor a legal holiday. which provides: “In computing any period of time prescribed or allowed by the Rules of Court. of course. the EXCEPTION referring to Sundays and holidays does NOT apply. court order. UNLESS it is a Sunday or a legal holiday..” From this. but where the word is used simply as a measure of duration of time and without reference to the calendar.S. in commercial transactions. however. event. that is.” when computed according to the calendar. – 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. or by any applicable statute. however. – The rule stated in the last paragraph of this article is similar. it seems logical to conclude that when the act and the period are contractual. Meaning of “Week”. beginning on Sunday and ending on Saturday. however. Carpio. Article 14. the day of the act. The Rules of Court. et al. Same. A “lunar month” is composed of twenty-eight days. Painaga. 29 SCRA 70) Computation of Time.In computing a period. – There are several senses in which the term “month” may be understood. or by any applicable statute. by order of a court. The Code.” It has been held. Date Specified. PENAL LAWS | and those of public security and safety shall be obligatory | . and the act must be done on the last day. 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. then on the last day of that (citing Gutierrez vs. is without prejudice to special laws on the particular contract involved. and the last day included. Tecson. does NOT use “month” in either use of these senses. A “calendar month” is a month designated in the calendar without regard to the number of days it may contain. 334). vs. such as in the case of negotiable instruments. The last day of the period so computed is to be included. But there is no necessity for such computation when the date is fixed.

356). and may be prosecuted for violating them. Sweet. – By express provisions in a treaty with a foreign power. especially when we consider that our dominant theory in conflict of law is of French origin. 1 Phil. of Romania (article 6). is triable in Philippine court (U. – Under the theory of extraterritoriality. They come under the protection of the Bill of Rights in the same manner as citizens. An offense committed on such vessel while it is in a Philippine port. however. They may fairly be called upon to bear their share of the general public burden.S. of Chile (article 57). Look Chaw. Lucero. U. The enjoyment of civil rights is independent of citizenship. they must. the Philippines may agree to exempt from the operation of its penal laws certain nationals of the former. Exemption under International Law. Aliens in general.S. An . 76 Phil. (2) when the offense is committed bu diplomatic representatives. Provisions of treaties must. 46 Phil. of Serbia (article 6). vs. 15 Phil. constituting a breach of public order and a violation of the policy established by the legislature. Exemption by Treaty.S. Valdez vs. Vol. and of Brazil (article 3).(obligatory force. and (3) when the offense is committed in a public or armed vessel of a foreign country. aliens enjoy the civil rights guaranteed by the Constitution to all the inhabitants of the State. (qualifications) subject to the principles of public international law and to treaty stipulations. obey its laws. This principle is expressly provided in the codes of France (article 7). They owe a local and temporary allegiance to the government of the country where they are. U. Principle of Territoriality in Penal Law) (applicable to) upon all who live or sojourn in Philippine territory. 18 Phil. 18. vs. The mere fact that the offender is a member of the United States Army and subject to court-martial. – A merchant vessel in a foreign registry does NOT enjoy the extraterritorial privilege of foreign public or war vessels.S. citing Moore’s International Law Digest. 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. p. On the other hand. Bull. Offenses in Merchant Vessels. Applicability of Laws to Aliens. vs. are bound to respect its laws. Same. 573). Same. A merchant vessel of one country which enters the port of another. IV. of Greece (article 9). – 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. does NOT exempt him from punishment under the laws of the Philippines when he has violated them (U. Notwithstanding the lack of positive provision in our Code. subjects itself to the laws of the latter so long as it remains within the territorial waters. being within the limits and jurisdiction of the State. and CANNOT exact any other mode of promulgation other than that which is marked out for the information of citizens (1 Tolentino 48. Offenses by Military Personnel. 21). 729.. therefore. vs. when properly imposed upon them and other members of the community alike (Ibid. 7.10). p. – Every sovereign state has absolute and exclusive power of government within its own territory. it is submitted that the principle is acceptable under our law. Wong Cheng. be taken into account.

and to marital authority.example of this is the Philippine-United States Military Bases Agreement of March 14. – This article treats of purely personal relations. The nationality theory was first established at the beginning of the 19th century in the Code Napoleon. L-16922. NOT by his physical location but by his political allegiance. which provided that the French laws concerning the personal status and capacity govern Frenchmen even when residing in foreign countries. (b) those committed outside the bases. – There are two theories for determining what personal laws shall apply to a particular person. Laws relating to family rights and duties. according to which the personal laws of a person are determined by his domicile. to the conjugal partnership. In the converse case of a foreigner residing in France. 13 Phil. Capacity to Contract. he CANNOT set such contract aside on the ground of minority. The other system makes nationality or citizenship as the basis for determining the personal laws of an individual. vs. No. when Filipinos are involved (Barnuevo vs. 25 SCRA 616) Application of Article. to support between members of a family. 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. No.] G. 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. he is already of age at the time he enters into the contract. Cloribel. under which the United States shall have jurisdiction over the following offenses: (a) those committed in any base by any person.R. and the status (Ellis. et al. The Philippines shall have jurisdiction over all other offenses committed outside the bases by any member of the Armed Forces of the United States. 1963) and capacity for juristic acts (Gibbs vs. April 30. G. this is the nationality theory. Republic [S.C. 293). 1947. This notion that an individual’s private rights should be determined. the French courts generally apply by way of analogy the law of the country of which he is a national. 238) . 29 Phil. Commanding General. followed in the United States. Theory of Nationality) are binding upon citizens of the Philippines. even though living abroad. In one system. 59 Phil. condition and legal capacity of persons (obligatory force. or when the offense is against the security of the Philippines. Frank. It is this theory that is followed in our Civil Code (see Vivo vs. Fuster. et al. are governed exclusively by the law of the Philippines. L-1715). EXCEPT when the offender and the offended party are both Filipino citizens. Article 15.R. when the offender and the offended party are both members of the Armed Forces of the Philippines. – If under the law of the State of which a party to a contract is a citizen. or to the status. (9a) Theories on Personal Law. the necessary connection between a State and an individual is found in the fact that the individual is domiciled in the State in question. even if under the laws of the Philippines he is still a minor (Government vs. 606) Same. this is the domiciliary theory. 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. by permission of its government or sovereign (Dizon vs. Government of the Philippines.. All questions relating to marriage and divorce or legal separation.

Under article 10 of the old Civil Code. . (obligatory force of EXCEPTION. both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions. 62 Phil.] 133). 895). 40 Off. Personal Property. Savigny bases this principle upon a voluntary submission to local laws implied in the holding of property within the country. 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. 230) Same. 29 SCRA 94). Real property as well as personal property (obligatory force. Gaz. (10a) Law on Property. Thus. Collector. whatever may be the nature of the property and regardless of the country wherein said property may be found. Same. It naturally follows that every question affecting title to land must be governed by the law of the space where the land is situated. 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. pp. This principle is recognized in this country. 222-2223). – It is the principle in Private International Law that the status of adoption. citing Kuhn. Renunciation of Allegiance. intestate and testamentary successions.. mobilia sequntur personam. As all tangible things occupy space. The new code has changed the rule. created by the law of a State having jurisdiction over it. ibid. EXCEPT when public policy or the interests of its inhabitants forbid its enforcement and demand the substitution of the lex fori. Comparative Commentaries on Private International Law. it has been held that personal property may be separated from its owner.. Theory of Nationality) shall be regulated by the national law of the person whose succession is under consideration. Same. p. – 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. Real Property. However. 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. Co Quico. EXCEPTION) is subject to the law of the country where it is situated. applying the principle that movables follows the owner. – Property is subject to the laws of the country in which it is located. Article 16. Foreign Adoption. The modern tendency is to make no distinction between mobility and immobility of property (Asiatic Petroleum vs. 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. Republic. following the more modern doctrine which subjects personal property to the law of the place where it is located. personal property was subject to the laws of the nation of the owner. [6th Supp. 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. – The legal and actual situs of immovables are identical.Same. including their title and its incidents and the mode in which they may be charged or conveyed (Kuhn. who may be taxed on its account at the place where the property is located. Principle of Lex Rei Sitae) (second paragraph.

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

A. such as the bringing of suit. Rule on EXCEPTION to Lex Loci Celebrationis) shall NOT be rendered ineffective by laws or judgments promulgated. Frank. (C. Foreign Judgments. their acts or property. and the statute of limitations. the solemnities established by Philippines laws shall be observed in their execution. 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. between the Philippine Government and an American citizen. No rule is better settled than that matters bearing upon the execution. 58 Phil.G. and those which have for their object public order. 1 Phil. or by determinations or conventions agreed upon in a foreign country. – 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.) O. 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. 236. 67. (third paragraph) Prohibitive laws concerning persons. admissibility of evidence. and other public instruments (obligatory force.. Performance and Enforcement. public policy and good customs (obligatory force. but was still a minor under the laws of the Philippines. The forms and solemnities of contracts. the defendant alleged that the contract could NOT be enforced against him because he was a minor under the laws of the Philippines.A. 236.. Sim & Co. In an action upon the contract. Frank. Execution of Contracts. – Matters connected with the performance of contracts are regulated by the law prevailing at the place of performance. which refers only to “the forms and solemnities” of contracts). see also Mac Millan & Bloedel. 72) . and NOT by the provisions of the Civil Code (German & Co. it was held that a power of attorney executed in Germany. 1696). HELD: Defendant’s contention is untenable.Article 17. vs. U. Valderrama. should be tested as to its formal validity by the laws of that country. depend upon the law of the place where the action is brought (Government vs. brought against him by the Government. Ltd. etc. will. (second paragraph. Remedies. Donaldson. 13 Phil. where the contract was entered into in Illinois. 13 Phil. interpretation. Gonzales. 63) In Government vs. vs. – Under the first paragraph of this article. the latter was already of age and had capacity to contract under the laws of Illinois. Rule on Extrinsic Validity of Will) shall be governed by the laws of the country in which they are executed..S.

In matters which are governed by the CODE OF COMMERCE | and SPECIAL LAWS. as stated in Fiore. when usurious.The legislative policy in this jurisdiction on any particular subject CANNOT be defeated by a foreign judgment obtained by Filipino citizens. Validity and Effects of Obligations. but if these places are NOT specified and they CANNOT be deduced from the nature and circumstances of the obligation. That the law on the subject in the Philippines is too strict or too liberal is beside the point (Sikat vs. Considering the facts of Government vs. so far as they are NOT inconsistent with this Code. a SPECIAL LAW . Thus. – The code fails to mention the law which shall govern the validity and effects of obligations. the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws. can be followed. A. then the law of the domicile of the passive subject shall apply (1 Tolentino 57. – The Code does NOT observe the principle contained in this article with consistency. vs. 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. 13 Phil. EXCEPTIONS to Article.only to supply deficiencies in the former (Leyte vs. the provisions of the Civil Code CANNOT be applied. under this article).” (2) In the CONTRACT OF LOAN. Since the rule contained in this article follows the Italian code. Manresa and Valverde believe that the doctrine in that code. their national law shall be applied. Article 18. 207). if this is NOT the case. 236 (see supra. and the parties are of the same nationality. Oil Co. 67 Phil. citing 1 Valverde 151). There are special cases expressly provided in the Code itself. Application of Article. article 1961 provides: “Usurious contracts shall be governed by the Usury law and other special laws. 52 Phil. which shall be resorted to . 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. the law of the place of perfection of the obligation shall govern its essence and nature. & M. the rule laid down in that case is in conformity with the above doctrine. where the special law or the Code of Commerce is made only suppletory. and the law of the place of the performance shall govern its fulfillment. This is in consonance with the principle that on a specific matter.429). if there is no stipulation on the matter. It is submitted that the principles set forth by Fiore are applicable under our law. (Rule on Suppletory Application) their deficiency shall be supplied by the provisions of this Code. Block. the law designated by the parties shall be applied. article 1766 provides: “In all matters NOT regulated by this Code. Frank.” . – Where there is NO DEFICIENCY in the special law. Canson. First.shall prevail over a GENERAL LAW. while the Civil Code is made primary law.

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

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.