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Tolentino Commentary Articles 1-18

Article 1. This Act shall be known as the "Civil Code of the Philippines."

Civil code – a collection of laws that regulate private relationships for the members of society
determining their rights and obligations, with reference to persons things and civil acts
- Through Royal Decree of July 31, 1889, Spanish civil code was implemented on
December 7, 1889
- Provisions in Spanish civil code did not conform with the customs, idiosyncrasies,
and traditions of the Filipino people and the modern trends and progressive principles
of law
- Thus the Civil Code (CC) reflects the Filipino culture, ergo its manifestation in the CC
is natural and unforced
- This untrammelled freedom to regulate relations is of the essence of self-
determination. It transforms positive law those native customs and traditions that are
worthy of perpetuation and to derive legal solutions from postulates of morality and
- Sources:
1. CC of 1889
2. Codes, laws, and juridical decisions, and works of jurists of other countries
3. Doctrines laid down by the SC
4. Filipino customs and traditions
5. Philippine statutes such as RoC, Code of Civil Procedure, Divorce Law, etc.
6. Code Commission
 Suggested amendments and new rules in order to rectify unwise
provisions formerly in force and to clarify doubtful clauses in 1889
CC, or to afford solutions in numerous questions not foreseen in that
- Reasons for Foreign Element:
o The PH has been in contact w the West for 400 yrs, its legal system
regulated judicial relations. The Roman Law as unfolded and adapted in
Spain should be main inspiration
o Anglo-American laws
 Democratic apprenticeship has led to American culture being
incorporated into Filipino life
 Economic relations will continue between PH and US
 Equitable rules in their courts aren’t recognized by 1889 CC
o Concept of right and wrong are essentially the same throughout civilized
- Incorporation of Customs
o The Commission introduced customs are mostly in family relations and

Arrangement of the Code – generally the same w/ 1889 CC

- Book I - Persons
- Book II - Property
- Book III – Different Modes of Acquiring Ownership
- Book IV – Obligations and Contracts
- Changes:
o Property regulation between spouses (from IV to I)
o Prescription (from IV to III)
o New subjects
 Human Relations (Preliminary Title)
 Care and Education of Children (I)
 Nuisance (II)
 Intellectual Creation (III)
 Natural Obligations, Trusts, Damages (IV)
- New Rights Created
o These new rights come from law and judicial decisions of other countries and
opinions of eminent jurists, or brought to light by the Commission; to make
CC suitable to PH conditions
o Natural law incorporated into positive law so that injustices committed in
relations be righted and given legal remedy (also to reduce cases where
natural justice and positive law are at variance)
- Subjects Omitted:
o Dowry
 Parents of the groom in PH give property to bride through propter
o Censos
o Use
o Habitation
- Arrangement Criticized:
o New CC follows old CC too closely and disregards German and Swiss CC
praised for their development and exposition of law
o Relationship (in kinds and degrees) is discussed n Intestate Succession
instead of in Persons or Family Relations
o Deals w Pledges, Mortgages, and Antichresis in IV instead of II because of its
true character giving importance to “real rights”

New Solutions Presented

- CC contains reforms different from those in the old CC justified by: Law should not be
static, where justice requires change, it should be made. They ought not to be so
inflexible that it destroys its essence – the supremacy of right. Delay of justice is a
grave situation, but graver is the perpetuation of injustice by the law itself.

Language of the Code

- Commission translated those provisions preserved from old CC to English, so it
prevails over other translations. Although, some terms have no direct English
translation, so while the form is English, the substance is in Spanish and Filipino.
(real property, easements, penalty, etc.)

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall
take effect one year after such publication. (1a)

Effectivity of the Code

- Effectivity of CC = Aug. 30, 1950

Effectivity of Laws
- Art. 2 applies to those statutes that don’t provide its own date of effectivity. Thus,
those that are applicable upon approval don’t need publication before effectivity.

AMENDED BY E.O. 200 (1987)

Sec. 1. 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.

Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil Code of the
Philippines," and all other laws inconsistent with this Executive Order are hereby repealed or
modified accordingly.

Sec. 3. This Executive Order shall take effect immediately after its publication in the Official

There’s a way to reconcile both, therefore it is not expressly repealed. The question is
whether it is implied?

Art. 3. Ignorance of the law excuses no one from compliance therewith. (2)

Presumption of Knowledge of Law

- Established because of the obligatory force of law, it is everyone’s duty to know it.
- No one can escape the law alleging in good or bad faith, that he does not know its

Reasons for Article

- Administration of justice would be defeated if persons could plead ignorance of the
law to escape legal consequences
o If laws aren’t binding until known, social life would be impossible because
laws could not be enforced due to their being unknown to many
o Absurd to absolve those oblivious and increase obligations of those
o Impossible to prove that one actually is ignorant of the law
o In our conscience, we carry norms of right and wrong, and reasons indicates
many times what we have to do; and in juridical relations, there are lawyers
to consult

What Laws Covered

- Laws of the PH. There is no presumption of knowledge of foreign laws. Ignorance of
foreign law would then be mistake of fact than mistake of law
- Only mandatory and prohibitory laws, not those merely permissive.

Application of Rule
- Injuries suffered by contracting parties because of ignorance of the law shall be born
by them. It does not justify the amendment or annulment of a contract.

No Exceptions Admitted
- Excuse for ignorance for the law may be equitably admitted especially when the new
provisions differ substantially from the former in force
- Minors are also excused for lack of intelligence

Irrevocability of Acts
- If one acts through ignorance of law and prejudices himself and cannot be remedied
without impairing another’s rights, the mistake cannot be corrected to the prejudice of
the latter.

Mistake of Fact
- Erroneous beliefs about meaning of one term, erroneous perception of facts

Difficult Questions of Law

- In certain instances, mistake as to difficult legal questions have the same effect as
mistake of fact, Mistake upon a doubtful or difficult question of law may be the basis
of good faith.
- Mistake of Lawyer
o A lawyer cannot be disbarred for an honest mistake or error of law especially
when called upon to act at once without time for reflection. No man is
supposed to know any branch of law perfectly.

Art. 4. Law shall have no retroactive effect, unless the contrary is provided. (3)

Concept of Retroactive Law

- One intended to affect transactions that occurred, or right accrued, before it became
- Changes or injuriously affects a present right by going behind it and giving efficacy to
anterior circumstances to defeat it
- Creates a new obligation and imposes a new duty, creates new disability

Reason for Article

- The obligatory force of law presupposes that it has been promulgated and has been
made known to the people. Hence, an inexistent law cannot be considered as
conclusively known to the people at that time. To make law binding before it has
taken effect can lead to arbitrary exercise of legislative power

Application of Article
- All statues have prospective operation unless purpose of legislature is to give them
retrospective effect declared or necessarily implied from language used. In doubt, the
doubt shall be resolved against retrospective effect.

Exception to Rule
- When law itself expressly provides
o It is within power of legislature to give such effect
o Unconstitutional Provisions
 If it makes an ex post facto law, it is not allowed
 Law that makes an illegal act that was legal when committed,
changes rules of evidence to make conviction, increases
penalties for infractions after it was committed
o Penal Statutes
 Permitted only when it favors the accused who is not a habitual
criminal even if time of enactment of such laws final sentence has
already been rendered
- Remedial statutes
o Those which refer to enforcing rights or of obtaining redress of their invasion.
o Procedure of court may be changed by law to become effective at one so
long as it does not affect vested rights
o Remedial statutes therefore are applicable to cases pending at the time of its
enactment to insure better administration of justice
- Curative statutes
o Those that cure errors and irregularities, thereby validating judicial or
administrative proceedings, acts of public officers, or private deeds and
contracts which otherwise would not produce their intended consequences
because of a statutory disability.
 Ex. A judgment rendered a tax law unconstitutional may be reversed
on account of an amendment enacted pending the appeal.
o Limits: Constitution, rights, finality of a judgment.
- Laws interpreting others
o Laws that interpret meaning of other are incorporated in the latter, but they
shall not affect judicial decisions final in the meantime.
- Laws creating new rights
o Not having retroactive effect only governs rights arising from acts done under
the rule of the former law
o If a new right is declared by a new law, it takes effect from time of declaration
even if the act arises from a former law provided that it does not prejudice
another acquired right.

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be
void, except when the law itself authorizes their validity. (4a)
Mandatory and Directory Laws

- Directory – provisions that are a mere matter of form, not material, do not affect
substantial rights, do not relate to the essence of the thing to be done so compliance
is a matter of convenience than substance.
- Mandatory – matters of substance, affecting substantial rights, are the very essence
of the thing required to be done
Violation of Directory Laws
- It is not possible to violate them.
Violation of Mandatory Laws
- Violation makes act illegal and void
When Law Authorizes Validity
- “Law” juridical order in its totality
- Legislator prohibited an act ,which has a penalty, without destroying its validity
- Manresa enumerates 3 cases:
o Violation does not refer to an essential matter; nullifying it is more
Example. Marriage with defects due to formal requirements still constitute a
valid marriage, however the parties involved may become criminally liable.
o The validity of the act depends on the person who can enforce its nullity.
Example. A forced or fraudulent marriage may be valid if the injured party
continues to cohabitate with the guilty party after the force has ceased and
fraud is discovered.
o The law may recognize it as valid but voidable.
Example. When a marriage is annulled, the legitimate status of the children
will not change.

Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a third person with a right
recognized by law. (4a)

Elements of Right
- Subjects
o Active
 Who is entitled to demand enforcement of the right
o Passive
 Duty-bound to enforce the right
 The determinate person in personal rights
 The indeterminate person in real rights
- The object
o Things and services intended for satisfaction of human wants, physical or
- The efficient cause
o The fact that gives rise to legal relation. It may spring from will of man
(wherein a contract arises) or independently of such will (fortuitous event).
Kinds of Rights
- The rights of personality
o Human rights, arises from the fact of being a man, intends to protect its
existence, integrity, and development in its physical security to honor, and to
liberty; the right to teach and learn freely, to write and speak, to work, etc.
o Increases as humanity progresses and as sphere of social solidarity expands
o Not subject to waiver
o Inherent in man, regardless of property
- Family rights
o Rights of persons as a member of a family
o Not subject to waiver
o Inherent in man, regardless of property
- Patrimonial rights
o Property for their object. Tend to economic satisfaction of men. Measurable
o Can be waived
o 2 kinds:
 Real rights – ownership, mortgage, etc.
 Personal rights – right to collect a debt, etc.

Renunciation or Waiver
- Relinquishment of known right w/ knowledge of its existence and intention to
- Voluntary choice is the essence of waiver
- Express or Implied
o Implied
 Clear, unequivocal, and decisive act of a party showing such purpose
 A failure or neglect to assert right at the proper time
- Reason for Article
o A person can renounce something in his favor
o Renunciation must not prejudice rights of others or impair public
order/interest as these are superior to individual will
- Requirements of a Waiver
o He has to have a right to renounce in the first place
o Capacity to make renunciation
o Renunciation must be made in a clear equivocal manner. The formality
required by law, if there is any, for such should be followed.
 Renunciation of one particular right cannot be presumed from
renunciation of another
- Scope of Waiver
o Applicable to all rights and privileges to which he is entitled (by the Consti, by
contract, statute) provided they’re for his sole benefit
o Obligations
 Cannot generally be renounced. But a person may exempt himself
from one which is inherent in a right upon the renunciation of said
o Real Rights
 Unilateral and depends on exclusive will of owner of the right
 Effects flow from such renunciation:
 If a right other than ownership is renounced (usufruct, use,
easement) it is obvious that the right is merged in the owner
of the property
 If there are various holders of a real right, the renunciation of
one’s right increases the shares of others
 If full ownership is renounced, then thing becomes res nullius
and may be acquired by occupation.
o Prohibited Waiver
 Only rights arising from laws can be renounced, not the law itself;
and said right cannot be waived if it’s contrary to public order, good
customs, or to the rights of a third person.
 Laws of general and mandatory character (for public
security, peaceful relations, convenience in economic
relations, those that refer to capacity of persons, privileges
granted to persons by reason of their incapacity) create
rights which are cannot be subject for waiver
 Renunciation of rights conferred by mandatory laws would
amount to renunciation of law itself
 If waiver injured the right of the third person, it is invalid. If
there’s no injury but third person suffers actual damage, it is
still valid.

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-
observance shall not be excused by disuse, or custom or practice to the contrary.

When the courts declared a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution. (5a)

Reason for Article

- Laws are promulgated by the State, and will cease to have effect only through the will
of the State. As long as it is in the statute books, its legal force and effects withstands
any practice or custom to the contrary.

Lapse of Laws
- There are laws that lapse by their own terms. It is either expressly provided (ex.
Renal Law expressly provided that it shall be in force for a period of four years after
approval) or, without express provision, with the intent of the law indicating that its
effectivity be for a limited period (ex. Emergency Powers Act that limited emergency
power of president to the amount of time Legislature was prevented from holding

Repeal of Laws
- Declared
o Contained in a special provision of a subsequent law
- Implied
o When provisions of subsequent law are incompatible with those of an earlier
o Conflict is resolved in favor of the later law even without special declaration in
o Not Favored
 Implied repeal should not be favored because if both laws can stand
by reasonable construction, they will both be sustained
 There has to be irreconcilable repugnancy between the two
o Requisites for a repeal
 Same subject matter
 Latter is repugnant to the earlier
o Rule Applied
 If in cases where the differences of two laws are reconcilable, the
duty of the court is, if possible, give effect to both
o General and Special Laws
 Where there are two conflicting acts, first special and latter general
(but still includes subject matter), the special should be taken as
exception to the general act/provision. A subsequent general stature
cannot repeal a prior special one unless a clear and necessary
 Although, when legislator intends to repeal special law by
irreconcilably inconsistent provision, it may be so
o Effect of Codification
 General rule – general law does not tacitly repeal special law unless
intention of legislature to repeal is clearly deduced from spirit of the
later law.
 A subsequent law that repeals a special law may also repeal another
before the latter
 When a statute intends to cover a subject matter, it supersedes
former laws on it

Effect of Repeal of Law

- Effect must generally be governed by rules on retroactivity of laws
- The repeal of a statute can’t impair any vested right, act done, penalty accrued, or
judgment finalized before the repeal
- Repeal of penal law during pendency of a criminal prosecution deprives court of
jurisdiction to proceed and case should be dismissed.

Repeal of Repealing Law

- When a law that expressly repeals a prior law is itself repealed, first repealed law
shall not be revived unless expressly provided
- If prior law was repealed by implication, the repeal of its repealing law will revive the
prior law, unless language of the last law provides otherwise.
- (ex. Provisions of the Penal Code on perjury was tacitly repealed by the Perjury Law.
Perjury Law was repealed by the Administrative Code. Thus, provisions of the Penal
Code on perjury was revived.)

Determination of Constitutionality
- Validity of a statute is sought only in the Constitution

Executive Orders and Regulation

- Regulations adopted under legislative authority by a department must be in harmony
with the law and for carrying into effect its general provisions.

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines. (n)

Decisions Not Source of Law

- Jurisprudence cannot create law. It is merely a judge-made law. The sole function of
our courts is to apply/interpret the laws.
- Court’s construction establishes contemporaneous legislative intent that the
interpreted law carried into effect
Roles of Jurisprudence
- Judge can formulate and declare the law as applied concretely to the case before him
- Case law: only law by way of interpretation or clarification of law
- Must be flexible so it can be an advanced guard in application of law and active
instrument in its development
- Double function of Courts:
o Fill deficiencies of legislation and provide a rule for the facts of a given case
(no positive provision of law and/or established custom)
o Adapt and adjust rigid provisions of law to the changing conditions of society
so that law may accomplish its purpose.

Doctrine of Stare Decisis

- Adherence to judicial precedents
- Requires courts to follow the rules established in a decision of the SC only. (Even if
lower courts decision is final and executory, it still can’t serve as precedent.)
- It becomes part of law of the land
- That decision becomes judicial precedent to be followed in subsequent cases by all
- Once a question of law has been decided, it is deemed settled and closed for further
- Must be flexible, so when, in the light of changing conditions, the courts may depart
from it.
- A principle of policy and not a mechanical formula of adherence
- However longstanding, if found contrary to law, must be abandoned. It should not
stand if there is conflict between the precedent and the law in force.

Art. 9. No judge or court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the laws. (6)

Applicability of Article
- When there is no law punishing the act, the case must be dismissed
Duty of Court to Decide
- Not knowing the law applicable to the case and not knowing where to find it is no
reason for dismissing the case without deciding the issues.
- Obscurity or Deficiency of Law
o If law is vague, it should be clarified in light of the rules of statutory
o If law is silent/insufficient, the court should fill the deficiency by resorting to
customs or general principles of law
 Cases arise wherein positive law has gaps. The court should be
given ample freedom to resolve them, only when interpretation have
been exhausted that the court can create rules based on facts within
the juridical order.
 By the judicial channel, new ideas may be introduced into our own
legal system
 Apply the law’s spirit. Spirit can be found in the precedents which
served as its basis as well as in its history
- Unjust Laws
o What the law grants, the court cannot deny even if it is deemed unjust for it
will invade the domain of the legislative branch
o Dura lex sed lex – if the law is clear, it must be applied
- Even if law was never/barely enforced before, upon discovery of the law, it must be

Rules Suppletory to Law

- No provision in the CC with respect to suppletory rule in case of deficiency in the law.
However, such rules must be considered existing.
- Custom and jurisprudence are considered as suppletory rules that contribute to law’s
evolution and adjustment. Opinions of jurisconsults and commentators also count.
Concept of Customs
- Juridical rule which results from a constant and continued uniform practice by society
and observed w/ a conviction that is juridically obligatory
- Requisites of Custom
o Plurality of acts or various resolutions of a juridical question raised repeatedly
in life
o Uniformity of the acts or various solutions to the juridical questions
o General practice by the great mass of a social group
o Continued performance of acts for a long time
o General conviction that the practice corresponds to a juridical necessity; or
that it is obligatory
o Practice must not be contrary to law, morals, or public order
- Distinguished from Law
o Custom comes from the society (spontaneous, tacit), law comes from the
governmental power of the State (conscious creation, solemn)
- What Custom Applied
o Presumed that one who performs juridical act acts according to the custom of
the place. When place of court and domicile of parties are different, it is
presumed that they knew the custom of their domicile and not the court’s
 Manresa believes the matter should be treated as if there’s no
 SR believes that in the absence of reasons for preference, the
general rule should be to apply the custom of the place for the
performance of the juridical act
- Illustrations of Application
o A contract made w/ reference to Saigon-Hongkong trade is held that the
custom of that trade is to govern the said contract.
o Duty of the court to apply in such cases the interpretation given to contracts
by the merchants themselves by actual practice
o Words and phrases in common use among parties and found in a law should
be given that meaning which is accepted in the community where the law
applies and where the word/phrase in in common use

- General Principles of Law

o SR and Valverde
 Some define it as “universal juridical standards dictated by correct
reason; or those principles of justice beyond the variability and
uncertainty of facts, those high standards which serve as a
foundation to positive law, those rules accepted by jurisconsults
which constitute real axioms for all those who intervene in juridical
life, and which form a law superior to that which is enacted”
o Manresa
 The principles which serve as the basis for positive law in each
o General principles of law should not be in conflict with the essence and the
fundamental purpose of existing social order
 The court should first look into the general principles underlying the
positive law of the land first, then only apply the rules that is most
reasonable provided that they don’t violate the fundamental concepts
of the law, custom, or established doctrines
o May be equivalent to natural law, equity, fundamental principles of juridical
o Justice and equity is always the strongest foundation in the interpretation of
o How Applied
 The allegation of general principles of law is admissible when there is
no law applicable to the point in controversy, without showing a law
or decision which sanctions it
o Illustrations
 No laws/customs applicable in hiring of personal property in general
or of vessels in particular
 Court adopted by analogy the general rules relating to lease of real
or immovable property. The judge was in doubt as to which of the 2
claimants had better right, he followed the principle of law that the
possessor has better title. The court should favor that which best
promotes public welfare
Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that
the lawmaking body intended right and justice to prevail. (n)

Applicability of Article
- In cases of doubt and when all other rules of interpretation fail. If law is clear, the
judge cannot go above the law and must apply it.

Equity in Application of Law

- Equity’s mission is to temper the rigor of positive law
- To seek and follow the intention of the legislator rather than the bare legal provision,
to adapt the rigid precept of law to the social life

Art. 11. Customs which are contrary to law, public order or public policy shall not be
countenanced. (n)
Application of Rule
- No one can make a custom for their benefit and give it a force paramount to that of a

Art. 12. A custom must be proved as a fact, according to the rules of evidence. (n)
Non-existence of Custom
- When custom is not know to those who have the best means of knowing it, it is best
evidence of its non-existence

Art. 13. When the laws speak of years, months, days or nights, it shall be understood
that years are of three hundred sixty-five days each; months, of thirty days; days, of
twenty-four hours; and nights from sunset to sunrise.

If months are designated by their name, they shall be computed by the number of days
which they respectively have.

In computing a period, the first day shall be excluded, and the last day included. (7a)

Meaning of “Week”
- 7 consecutive days (where the word is used as merely a measure of duration of
time), beginning on Sunday and ending on Saturday
Meaning of “Month”
- “Lunar month” 28 days
- “Calendar month” period ending on the day in the succeeding month corresponding
to the day in the preceding month from which the computation began; and if the last
month has not so many days, then on the last day of that.
- The Code, however, use it in a legal sense as a period of thirty days
Computation of Time
- Similar to Rule 28 of RoC
o In computing, the day of the act, event, or default after which the designated
period of time begins to run is not to be included. The last day of the period
so computed is to be included.
- Date Specified
o The rule above is only applicable when 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.
o No necessity for computation when an act is to take place at a specified
future day

AMENDED BY: Revised Administrative Code of 1987

- Sec. 31. Legal Periods. - "Year" shall be understood to be twelve calendar months;
"month" of thirty days, unless it refers to a specific calendar month in which case it
shall be computed according to the number of days the specific month contains;
"day," to a day of twenty-four hours; and "night," from sunset to sunrise

Did latter repeal former? Yes. Implied. Because there is a way to reconcile
- Most of the time, 12 yrs is mostly 365 days. No manifest in compatibility cause you
might be referring to the same thing
*When dealing w gov’t agency, follow RAC
*Unclear if in between private parties

Art. 14. Penal laws and those of public security and safety shall be obligatory upon all
who live or sojourn in the Philippine territory, subject to the principles of public
international law and to treaty stipulations. (8a)

Applicability of Laws to Aliens

- They owe local, temporary allegiance to the government of the country where they
are and must obey its laws
- They can also be called upon to bear public burden if properly imposed on them and
other members of community alike
- They also enjoy civil rights guaranteed to all inhabitants of the State
- Offenses by Military Personnel
o Jurisdiction of tribunals isn’t affected by those in brought for trial
o A member of US Army is not exempt from punishment under PH law when he
violates them
o Provisions of treaties must also be taken into account
- Exemption under International Law (theory of extraterritoriality)
o When the offense is committed by a foreign sovereign under PH territory
o When offense is committed by diplomatic representatives
o When offense is committed in a public or armed vessel of a foreign country
 Offenses in Merchant Vessels
 A merchant vessel of one country and enters port of another
subjects itself to laws of the latter as long as it is in its
territorial waters
 Violations committed on such vessels is triable in PH courts
- Exemption by Treaty
o By express provisions in a treaty with another country, the PH may agree to
exempt from the operation of its penal laws certain nationals of the former.
o In the PH-US Military Bases Agreement the US has jurisdiction over the ff.
 Committed in any base by any person except when the
offender and the offended party are both Filipino; or when
offense is against PH security
 Committed outside the bases when both parties are
members of the AFUS
 Committed outside the bases by any AFUS ember against
security of the US (PH has jurisdiction over all other offenses
committed outside the base)

Art. 15. 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. (9a)
Theories on Personal Law
- Domiciliary theory
o The connection between a State and an individual is found in the fact that the
latter is domiciled in the State in question
- Nationality theory
o The basis for determining the personal laws of an individual is his citizenship
o Individual’s private rights is determined by his political allegiance
o This is the theory followed in our Civil Code

Application of Article
- Purely personal relations and the status and capacity for juristic acts (marriages,
divorce, marital authority, etc.)
- Capacity to Contract
o If under the law of the State of which a party to a contract is a citizen, he’s
already of legal age when he enters into the contract, he cannot set it aside
on ground of minority even if under the laws of the PH he is still a minor
- Renunciation of Allegiance
o Procedure on how to do so is governed by his national law
- Foreign Adoption
o Status of adoption law of a State having jurisdiction over it shall be given the
same effect in another state

*Criminal law, however, is applicable to all by virtue of being within PH territory

Art. 16. Real property as well as personal property is subject to the law of the country
where it is stipulated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (10a)

Law on Property
- Property is subject to laws of the country where it is found
- The place in space which the thing is located is the situs of the legal relationship
which is the subject of the property right
- Real Property
o The legal and actual situs (a place to which a property belongs) of immovable
are the same.
o Lex situs – law of the place where the property is located
o Land cannot be located at any other place than its actual situs
o Local sovereignty can alone adjudicate upon the lands and immovable
property within its border, including the title and incidents and the mode in
which they may be conveyed
- Personal Property
o Before, personal property was subject to laws of the owner’s nation - “mobilia
sequuntur personam”
o Now, personal property is subjected to the laws where it is located with no
distinction between mobility and immobility of property - “lex situs”
 So it has been held that owner can be separated from property. He
can be taxed on its account at the place where property is located
despite place not being owner’s domicile
 This is because of great increase in modern times of amount and
variety of property not immediately connected to the person of the
owner and also businesses mostly don’t conduct their principal
operation in their technical domicile
- Determination of Property
o Lex situs governs
- Right to Possession
o Person’s right to be respected in his possession of movable property is
governed by the law of the state where property is found because it refers to
a matter of public order

Law on Succession (2 viewpoints)

- Execution of wills
o Governed by the law of the place of execution (Art. 17)
- Distribution of Property
o Governed by the law of the nation of the deceased irrespective of nature and
location of properties he left
o It may involve various questions
 Order of succession in cases of intestacy (no will before death)
 Validity of the testamentary provisions in case of testate succession
 Extent/amount of property which each heir is entitled to
 Capacity of heirs to succeed
 Questions of preterition, disinheritance, and collation
- Applicability of Foreign Law
o 2nd paragraph can be invoked only when the deceased was vested with
descendible (eligible to be inherited by descendant) interest in property within
the jurisdiction of the PH
o Foreign law is consulted about the order and extent of succession
o The intrinsic validity of the provisions of the will of a foreigner who dies in the
PH is to be determined by the laws of his country
- Proof of Foreign Law
o Involvement of foreign law must be alleged and proved

Art. 17. The forms and solemnities (verbal, written, etc.) of contracts, wills, and other
public instruments shall be governed by the laws of the country in which they are

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

Prohibitive laws concerning persons, their acts or property, and those which have, for
their object, public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)

Execution of Contracts
- The law of the place where the contract is made determines execution, interpretation,
and validity of a contract.

Performance and Enforcement

- Laws of the place of the performance of the contract prevails. Remedial procedures
of the place where action is brought prevails.

Foreign Judgments
- Litigants cannot compel courts to approve of their own actions or permit personal
relations of Filipinos to be affected by decrees of foreign courts in a manner contrary
to our notion of public order. PH policy cannot be defeated by foreign judgment
obtained by PH citizens.

Validity and Effects of Obligations

- The law designated by parties shall be applied
o If no stipulation, and parties are of diff. nationality, their national law shall be
- If this is not the case, the law if the place of perfection of the obligation shall govern
its essence, and the law of that place of performance shall govern its fulfillment. If
place are not specified, the law of the domicile of the passive subject (party bound to
fulfill a duty) shall apply.

Art. 18. In matters which are governed by the Code of Commerce and special laws,
their deficiency shall be supplied by the provisions of this Code. (16a)

Application of Article
- Where there is no deficiency in special law, the CC cannot be applied (the principle of
a special law superseding a general law).

Exceptions to Article
- In special cases (expressly provided in the Code), special law or Code of Commerce
is made suppletory to the CC.
o In contract of transportation by common carriers, Art. 1766 says “In all
matters not regulated by this Code, the rights and obligations of common
carriers shall be governed by the Code of Commerce and by special laws”
o In the contract of loan, when usurious (unreasonably high interest rate), Art.
1961 says “… shall be governed by the Usury Law and other special laws, so
far as they are not inconsistent with this Code.”
o In the Title on preference of credits, when the properties of the debtor aren’t
sufficient for his debt, Art. 2237 says “Insolvency (unable to pay debt) shall
be governed by special laws insofar as they are not inconsistent with this