~TRODUCTION

TO
LAW
By

ROLANDO A~REZ
LL.B., San Beda College
Founding and Managing Partner,
Suarez, Paredes, Zamora & Suarez Law Offices;
Law Practitioner and Professar of Law ·
Author: Principles, Comments and Cases in Constitutional Law I;
Principles, Comments' and Cases in Constitutional Law II;
Agrarian Reform and Social Legislation; ·
Comparative Study: Roman Law and Philippine Law, First
and Second Editions; Introduction to Law, First, Second
and Third Editions; Notes and Coniments, Proclamation No.3
and The Provisional Constitution of the Philippines;
Agrarian Reforrri,- Co~peratives and Taxation;
A Mile to Go {or Genuinè:I;and Reform in the Philippines;
Statutory Construction; Torts and Damages

FOURTH EDITION

Publlshed & Dlstrlbuted by

 t.IPHR
RECEIVEQ -u • .
fJATf
' l\,
~· ~ 8 .•

TABLE OF CONTENTS
. . . > <l. .. • ••
Acknowledgment .............................................. ...............•....... 111
Dedication ····························~······~:~., ..................................;........ v
Preface to the Fo11:rth Edition .........': ............................. ;........ vii

Chapterr ·) , ·
'•'j

LAW, ITS CO:NçEPT ANI> CLASSIFICATION

Definition of law ............. ,..~··~·························,.~·.-·.'",'"'"············· l

Classification of law ............................................................... · 2
Sources oflaw •............................................................ ~........... 4

Chapter II
.1·', : '

WORLD'S LEGAL SYSTEM .

!' '~ :

The three prevailing legai system .......•...... :......................... 6

Roman Law ................................................................ ~............ .·:7
Value and importance ofRoman.Law .................................. .7
Politica! History of Rome ........... ;; .......•........................• ,..,,.,. 9
Common law ...............................•.• ;•.o; ••••••• : ••••• ; ••••••••••••••• ;;;...... · 14
Mohammedan law .............................. ;...•................•. ~ .........•.. ·· 14
Blending of Legai Systems in the Philippines ....•............... .14
·'
Chap.ter III
LAW AND ITS APPI,.ICATION

Court's duty to decide every case .; .... :.................................. 16

Application of laws ........... .............•....... ................................. 17
Statutory construction, its c~ncept, purpose, and effect .•.. 17
Construction distinguished from interpretation ................. 17
Meaning of the rule: "One must iilterpret first before
he construes" :... ;.. ;.. ;:......................................... ;......... :..... 18
Intrinsic aids distinguished from: extrinsic aids ..............•.. 18
Purpose of interpretation and coristruction ... i.: •.. ;............... 18

ix
When is it necessary and not necess11ry ,to interpret ChapterVI
and con~?truct? .~: .. ;.... :.. :.. :........... ~ .. ~:.:~: .......................... . 18 CONCEPT AND NATURE OF MARRIAGE
Who interprets the law and who.dete;rmii~es
legislative_ ~ntent? ........ , .............. :.... ,T .......................... 19 Concept ................................................................................... . 42
Which prevails ..:.__ the letter of the law or the spirit
Definition of marriage ......................................................... .. 42
ofthe law? ..................................................................... . 19
Requisites of a valid marriage ............................................ .. 43
Aids in interpretation· and construction ............................. . 20
Simplification of the rule regarding the use
Essential requisites ............................................................... .
. . l
44
of extrinsic aids ............................................................ . 24 F ormal requ1s1tes .................................................. ,............... .. 45
Requirements if any or both of the contracting parties
ChapteriV are between 18 and 21 years old and if any
or both are not emancipated by marriage .................. . 46
THE LEGAL PROFESSION AND Requirement if any of the contracting parties is
THE QUALIFICATIONS AND PROCEDURE between 21 and 25 years old ...................................... .. 47
FOR ADMISSION TO THE Effect if marriage is celebrated within the three (3)
PRACTICE OF LAW months period on the basis of a marriage license
issued in violation of the said period ......................... .. 47
Qualificatìon for admission to the practice of law ............. . 26 Authority of the solemnizing officer .................................... . 47
First requirement .................................................................. . 26 Marriage license .................................................................... . 48
Second requirement .............................................................. . 27 Formalities of marriage ....................................................... .. 48
Purpose of imposing said requirements .............................. . 28 Void and voidable marriage ................................................ .. 48
Procedure for admission to the practice of law .................. . 28 What marriages are void from the beginning? ................. .. 50
Consequence of failure to pass said examination .............. . 29 What are other voi d marriages? ......................................... .. 50
Practice of law is more of a privilege than a right ............ . 29 Essential requisites: (l) Legai capacity and (2)
Practice of law is a profession and not a business ............ . 30 consent freely given ....... ~ ............................................. .. 55
The duties of a lawyer .......................................................... . 31 What constitutes fraud as a ground for
Lawyer's compellsation .......... :.............................................. . 31 annulment of marriage ................................................ . 56
Disciplinary power over attorneys ....................................... . 32
Effect of annulment of voidable marriage .......................... . 57
Integrated Bar of the Philippines .................................. ,.... .. 33
Status of children born-out ofmarriages ab initio ............ . 57
Integration of the bar defined ............................................... . 33
Status of children horn out of voidable marriages ............ . 58
Legal an d constitutional basis ............................................ .. 33
Restrictions and precautions to be observed by
Supporting arguments in support of constitutionality
and legality ................................ ;.................................. . 33
the court in issuing the decree of annulment.. .......... . 58
Legal separation ................................................................... .. 58
·chapterV Grounds for legal separation ............................................... . 58
Within what time should an action for legai
PERSONS separation be filed? ...........·................... ;...................... .. 59
Evidence required as basis for judgment in
Concept of a person ............................. ,................. ;.............. .. 35 action for legal separation ........................................... . . 59
Capacity ................................................................................. . 36 What is adultery? .................................................................. . 60
When does the personality of a natural person begin? .... .. 37 What is concubinage? ........................................................... . 60
When does the personality of a private corporation Requisites for legal separation ............................................ . 60
(private juridical person) begin? ................................ .. 38 Effects of legal separation ................................................... .. 61
When is a fetus considered horn? ........................................ . 38 Effects after filing of the petition (Art. 61, FC) ................ .. 61

x xi
 Effects during pendency of legai separation ChapterVII
(Art. 49, FC) ..... ;............................................................ . 62 THEFAMILY
·Effects of the decree of legai separation
(Art. 63, FC) .................................................................. . 62 Family defined .. .. .... .. .. .. ... .. .. ..... ... ..... .. .... .. ... .. ... .. ... .. ... ... ......... 74
Effects during the proceeding for legal separation Family suits are discouraged .... ... .. .. .. .. ... .......... ..... ... .. .. .. ...... 74
or of annulment of marriage ...................................... .. 62 Family home defined ............................................................. 74
Parent;1l authority is exercised by the parent Advantages of a family home................................................ 75
designated by the court (Art. 213, FC) ....................... . 63
Effect of reconciliation of the parties Chapter VIII
(Aris. 65 and 66, FC) ...................................................·. 63
In case of breach of mutuai obligation or PROPERTY
mutuai help and support ............................................. . 63
In case of breach of mutuai obligation to observe Property defined ..................................................................... 76
respect an d fidelity ....................................................... . 64 Principal classification of property .. .. ... .. .......... ..... ....... ........ 77
As regards the obligation of the spouse to live together ... . 64 Classification of real or immovable properties.. ..... .. .... ..... .. 77
Absolute divorce .................................................................... . 65 Movable or personal properties ... .. .. ........ .. .. .. .... .. ................. 79
Conjugal partnership of gains ............................................. . 65 Definition an d concept of ownership ... ... .... .. ... .... .. ........... .. .. 79
Definition of paraphernal property ..................................... . Extent of ownership ... .. .. .. ... .. ... ....... .. .. ... ... .. .. ...... .. ..... .... ........ 80
66
Ownership of a hidden treasure ........................................... 81
Rights and Obligation Between Husband and Wife .......... . 66
Definition of hidden treasure ... ... .. .. .. .. .... .. .. .. ... ...... ....... .. ...... 82
What are the duties of husband and wife? ......................... . 66
Modes of acquiring ownership ... ..... .... .. .... .. .. .. .... .. ... .. ........... 82
Scope of duty to live together .............................................. . 66
Attributes of ownership ......................................................... 84
Mutuai respect and fidelity .................................................. . 66
Important articles of the New Civil Code on
Mutuai help an d support ...................................................... . 67
ownership an d possession .. ....... .. ... .. ....... ......... .. .. .... .. ... 85
~:~~~reg::q~!xa:~i::;:ri;;·b;·································· 67
Effects of possession ..... .. ... ....... .. ..... .. .. ... ... .... ... ... ..... .... ... ...... 87
gratuit~ title? ............................................................ . 67 Chapter IX
What is a mamage settlement? .......................................... . 68
Who are the parties to a marriage settlement? ..............•... 68 GENERAL PRINCIPLES ABOUT CONTRACTS
Systems that may be adopted by the parties to AND OBLIGATIONS
govern their property relations ................................... . 68
What systems govern? .......................................................... . 69 Elements of a contract ... ... ... .... ... .. .. .. .. ... ... .. .. .. .... ..... ....... .... ... 90
In the absence of marriage settlement, or when When is a contract perfected? ............................................... 91
the agreed regime is void, what governs the Can the contracting parties agree on
property relations between husband and wife? ......... . 69 any term or condition? ......... :........................................ 91
Concept of donation propter nuptias ................................... . Basic principles to remember apout contracts ..... .. ......... ... . 92
70
Conce p t of obligation ... .. ... ... .... ... .. .. ..... ... .. .............. .. ......... ..... 98
Requisites of donation propter nuptias ............................... . 70
Sources of obligation ...... .. .... .... ... .... .. .. .. ... ... .. .. ... ... ....... ..... .. ... 99
Distinctions between donation propter nuptias
Nature an d effects of obligations ..... .. ... .. ........ ... ......... .......... 99
and ordinary donation .................................................. . 70
Obligation of a perso n obliged to give something .... ... .. ...... 99
Rights and Obligations Between Husband and Wife
Obligation to give a determinate thing ................................ 100
Common to husband and wife ..................................... . 71 When is a thing specific or determinate and when
To livc together .....................................: ................................ . 72 is it generic or indeterminate? ..................................... 100
Wife may establish a separate domicile .............................. . 72 Effect of obligation to deliver a specific thing
Other consequences of marriage .......................................... . 73 and a generic thing ....... ;............................................... 100

xii xiii
Effect of obligation ................................................................ . 101 Actual example of an acknowledgment of a will ................ . 134
Effect of obligation not to do ................................................ . 101 Qualifications of witnesses to notarial wills ...................... . 135
Debtor is in default from the time of demand ................... . 101 A will can be revoked or altered .......................................... . 135
Effect if there is frau d, negligence or delay ....................... . 102 In case of supplement or alteration ........... :........................ . 135
Kinds of damages .................................................................. . 102 In case of revocation ............................................................. . 136
Responsibility arising from fraud (dolo) ............................. . 102
Responsibility arising from negligence (culpa) .................. . 102 ChapterXII
Kinds of culpa ........................................................................ . 103
TORTS AND DAMAGES '
Distinctions between culpa contractual, culpa
aquiliana and culpa criminal ..... ;................................ . 103
Is a person responsible for those events which could Definition of a quasi-delict ................................................... . 138
not be foreseen, or which though foreseen Requisites of a quasi-delict .................................................. . 139
are inevitable? ............................................................... . 104 Quasi-delict is a civil wrong ................................................. . 139
Kinds of obligation ................................................................ . 104 The act or omission must be without intent
Definition and illustration ............... ,................................... . 104 to cause damage ........................................................... . 139
Extinguishment of obligations ............................................. . 106 If there is no intention to cause damage ............................ . 139
Distinctions ............................................................................ . 140
ChapterX What is negligence? .............................................................. . 140
What is the test to determine negligence? ......................... . 142
SPECIAL CONTRACTS Degree of care of negligence that is required ..................... . 142
What are the defenses that can be interposed
Sale .......................: ................................................................ . 110 in quasi-delict? .............................................................. . 143
Agency .................................................................................... . 114 Old cases ............................................................................... . 144
Partnership ............................................................................ . 119 New cases ............................................................................... . 148
Loan ........................................................................................ . 121
Pledge an d mortgage ............................................................ . 123 Chapter XIII
Antichresis .................... ~ ........................................................ . 124
Common carriers .................................................................... . 125 POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
ChapterXI
Definition ............................................................................... . 163
SUCCESSION Constitution ........................................................................... . 165
Basic ptiriciples of the Constitution .................................... . 165
Conce pt and definition of succession ................................... . 129 Classifications of the Constitution and its definitions ...... . 166
What inheritance includes ................................................... . 129 The 1987 Constitution may be changed ............................. . 171
Kinds of succession ............................................................... . 130 Due Process of Law .............................................................. .. 173
What is a will? ....................................................................... . 130 Procedura! Due Process in Administrative Proceedings .. .. 178
Characteristics of a will ........................................................ . 130 Search an d Seizure ............................................................... . 179
Wl.o can make a will? ........................................................... . 131 Privacy of Communication and Correspondence ................ . 179
When is a person of sound mind? ........................................ . 131 Freedom of Speech and of the Press ................................... . 180
Wills allowed under the New Civil Code ............................ . 131 Freedom of Re ligion .............................................................. . 181
Requisites of a valid will ..................................................... .. 131 Liberty of a bo de and Travel ................................................. . 182
Actual example of an attestation clause ............................. . 133 Right to Information ............................................................. . 182
Actual example of attestation clause where testator Right of Association .............................................................. . 184
caused some other perso n to write his name ............. . 133 Taking of Private Property for Public U se ......................... . 185

xiv xv
Prohibition against impairment of obligation Can President Estrada be prosecuted in case
of contracts ................................................................... .. 186 h e is acquitted? ............................................................. . 208
Free access to courts and quasi-judicial bodies
an d adequate legai assistance ..................................... . 188 CbapterXIV
Right to remain silent and to have competent CRIMINAL LAW
an d independent counsel ............................................. . 190
Right to bail ...................................................... :................... .. 191 Historical Background ......................................................... .. 213
Due Process in Criminal Proceedings ................................ .. 192 Classica! school of thought ................................................... . 213
Habeas Corpus ...................................................................... .. 193 Positivist school of thought .................................. ;.............. .. 213
Speedy disposition of cases before ali judicial, Criminallaw .......................................................................... . 213
quasi-judicial or administrative bodies ...................... . 194 Basic principles of criminallaw .......................................... . 214
Rights against self-incrimination ........................................ . 195 Who incurs criminal liability? ............................................ .. 214
Freedom of politica! belief and freedom against Stages in the commission of felonies .................................. .. 215
involuntary servitude .................................................. .. 196 Notes ...................................................................................... . 215
Right against excessive fines, degrading or Enumeration of ali circumstances that modify
inhuman punishments ................................................. . 196 or affect criminal liability ............................................ . 215
Right against imprisonment for debt or non-payment What is Habitual Intoxication? ........................................... .. 219
of poli tax ...................................................................... . 196 What is Illiteracy? ................................................................. . 219
Double Jeopardy ................................................................... .. 197 Who are principals? ............................................................. .. 220
Right against ex post facto law and Bill of Attainder ........ . 198 Who are accomplices? ........................................................... . 220
Police Power ......................................................................... .. 200 Who are accessories? ............................................................. . 221
Power of Emine n t Domain ................................................... . 200 Modification of the penalty for the violation of
B.P. Big. 22 ..................................................................... , 227
Power of Taxation ................................................................. . 200
Similarities and distinctions of the three inherent
powers of the State ...................................................... .. 200 CbapterXV
What is impeachment? ........................................................ .. 202 REMEDIAL LAW
Who are the impeachable officials under the
1987 Constitution? ....................................................... . 202 Attachment ............................................................................ . 234
What are the grounds for impeachment? .......................... .. 202 Preliminary Injunction ......................................................... . 234
Procedure of impeachment .................................................. .. 206 Grounds of issuance of Preliminary Injunction ................ .. 234
Who can file a complaint for impeachment? ...................... . 206 Receivership ........................................................................... . 235
Can an impeachment proceeding be initiated against When to appoint a receiver? ............................................... .. 235
the same official more than once within a period Replevin ................................................................................. . 235
of one (l) year? ............................................................... . 206 Alimony Pendente Lite ........................................................ .. 236
Who has the sole power and authority to decide ali Special Civil Action .............................................................. .. 236
207 Special Proceedings ............................................................... . 240
cases of impeachment? ................................................. .
Criminal Procedure ............................................................... . 260
What is the nature of the impeachment proceedings? ...... . 207
Evidence ................................................................................. . 271
What rules apply in an impeachment proceeding? ............ . 208
What is needed in order to convict the person subject
of impeachment? ........................................................... . 2G8
What is the effect of a judgment in case
of impeachment? ........................................................... . 208

xvi xvii
 ChapterXVI
LABOR LAW AND SOCIAL LEGISLATION

Labor laws de fin ed ................................................................ . 276

Social legislation defined ...................................................... . 277
Distinction Between Labor Laws and Social Legislation .. . 277
Labor Laws ............................................................................ . 277 Chapter l
Generai Provisions of the Labor Code of the Philippines .. 277
Emancipation of tenants ...................................................... . 278
Regulation of recruitment an d placement activities ......... . 279 LAW, ITS CONCEPT ANO CLASSIFICATION
Employment of non-resident aliens ..................................... . 280
Conditions of employment .................................................... . 281
National Labor Relations Commission (NLRC) ................. . 288 IMPORTANT TOPICS IN TIDS CHAPTER:
U nfair labor practices ........................................................... . 290
Strikes and lockouts ............................................................. . 293 l. Definitìon of law
Termination of employment ................................................. . 296 2. Classification of law
Retirement from the service ................................................ . 299
Thirteenth-month pay .......................................................... . 299 (a) Natural Law
New Social Security Law (SSS) ........................................... . 301 (b) Positive Law
New Government Service Insurance Act (GSIS) ................ . 306
3. Sources of Law
Comprehensive Agrarian Reform Law ................................ . 308
(a) Legislation
(b) Preceden t
(c) Custom
(d) Court Decision

DISCUSSION

1. DEFINITION OF LAW
The term "law," in its broadest sense, means any rule of action
or norm of conduct applicable .to all kinds of action and to all objects
of creation. In this sense therefore, it includes all Iaws, whether
they refer to state Iaw, physicai Iaw, divine Iaw and others.
In a strict legai sense, Iaw is defined as a ruie of conduct, just
and obligatory, Iaid down by legitimate authority for common
observance and benefit. (Sanchez Roman, 23) Based on this
definition, Iaw has the following elements:
l. lt is a rule of conduct - Laws serve as guides of an
individuai in reiation to his fellowmen and to his commu-
nity;

xviii l
2 INTRODUCTION TO LAW LAW, ITS CONCEPT AND CLASSIFICATION 3

2. Law must be just - The chapter on human relations is Divine Law

now precisely embedded in the New Civil Code in order
a. Divine Positive Law, i. e.,
to obtain stability of the social order. Laws, as guides for
human conduct, "should run as golden threads through Ten Commandments.
society, to the end that law may approach its supreme b. Divine Human Positive
ideai which is the sway and dominance of justice" (Report Law, i':e., Command-
ofthe Code Commission, page 39); ments of the Church.
3. It must be obligatory - If laws are not enforced, the Public Law
purpose for which they are intended will not be served;
a. Constitutional Law -
4. Laws must bE? prescribed by legitimate authority - lflaws is the fundamentallaw of
are not prescribed by legitimate authority, the people the land which defines
could not be expected to observe them. Authority to make the powers of the govern-
laws is conferred upon those duly chosen by the sovereign ment.
will of the people. This is in consonance with Section l,
Article 2 of the Philippine Constitution which says that B. POSITIVE LAW b. Administrative Law -
"sovereignty resides in the people and all government that law which fixes the
authority emanates from them"; organization and deter-
mines the competence
5. Laws must be ordained for the common benefit - This of the administrative
recognizes the famous Latin maxim of "Salus Populi Est authorities and which
Suprema Lex" - the welfare of the people is the supreme regulates the methods by
law. Laws should be applied not only to a particular group which the functions of
of citizens. They are supposed to be applied equally to the government are
all citizens regardless of their religion, politica! persua- performed.
sion, or status in life.
c. lnternational Law -
body of rules which regu-
2. CLASSIFICATION OF LAW lates the community of
nations.

Physical Law - Universal rule Private Law - Body of rules

A. NATURAL LAW- This Moral Law - Set of rules which
law derives its force and
authority from God. It is
superior to other laws. lt is
binding to the whole world,
in all countries and at ali
times.
of action that governs the
conduct and movement of
things which are non-free
and material.
establishes what is right and
what is wrong as dictated by
the human conscience and as
inspired by the eternai law.
which creates duties, rights
and obligations, and the
means and methods of
settìng courts in motion for
the enforcement of a right or
of a redress of wrong. (Word$
~ 1 and Phrases, Vol. 24, 337)
a. Substantive private
law - those rules which
declare legai relations of
litigants when the courts
have been properly moved
 4 INTRODUCTION TO LAW
to action upon facts duly
presented to them. (24
Words and Phrases, 337)
b. Procedural or adjec-
tive private law -
refers to the means and
methods of setting the
courts in motion, making
the fact known to them
and effectuating their
judgments.
3. SOURCES OF LAW
Law is derived from different sources, namely: (l) legislation;
(2) precedent; (3) custom; and (4) court decision.
(a) LEGISLA.TION- Before the declaration ofMartial Law
in the Philippines on September 21, 1972, the power to legislate
laws is vested in the Congress of the Philippines which consists of
the Senate and the House ofRepresentatives. Upon the imposition
of Martial Law and after the dissolution of the old Congress, the
power to legislate law is vested in the President of the Philippines.
This is the reason why the President issued presidential decrees
and letters of instructions. When the Batasang Pambansa was
organized, legislative power is principally vested in this body
although the President, under and by virtue of what is known as
Amendment No. 6, continued to issue decrees when the exigency
of the situation requires and in case of other emergencies. Among
many others, this is one of the dictatorial acts that was severely
questioned by s0.verallawyers and critics of the past regime. Now,
after the People's Revolt on February 22-25, 1986, and in accordance
with the wishes and the will of the sovereign Filipino people, the
three branches of government operating under the doctrine of
separation of powers are restored, with each department being
committed to do its utmost share in bringing about a more
democratic and efficient system of government that is responsive
to the needs of the people.
(b) PRECEDENT- This means that the decisions or
principles enunciated by a court of competent jurisdiction on a
question of law do not only serve as guides but also as authority to
be followed by ali other courts of equal or inferior jurisdiction in
LAW, ITS CONCEPT AND CLASSIFICATION 5
ali cases involving the same question until the same is overruled
or reversed by a superior court. In the Philippines, this doctrine of
stare decisis is not applied and recognized in the same manner that
it is applied and recognized in common law countries. However,
our New Civil Code provides as follows: "x x x Judicial decisions
applying or interpreting the laws or the Constitution shall form a
part of the legai system of the Philippines. x x x" (Article 8, New
Civil Code)
(c) . CUSTOM - Customs have the force of law only when
they are acknowledged and approved by society through long and
uninterrupted usage.
In the Philippines, there are severa! requisites before the court
considers custom. They are as follows:
a. A custom must be proyed as a fact according to the rules
of evidence (Art. 12, NCC);
b. The custom must not be contrary to Jaw (Art. 11, NCC);
c. There must be a number of repeated acts and these
repeated acts must have been uniformly performed;
d. There must be a judicial intention to make a rule of social
conduct; and
e. A custom must be acknowledged and approved by society
through long and uninterrupted usage. ·
(d) COURT DECISION - Judicial decisions which apply
or interpret the constitution and the laws are part of the legai
system in the Philippines but they are not laws. However, although
judicial decisions are not laws, they are evidence of the meaning
and interpretations of the laws.
/In the Philippines, we adhere to the doctrine of STARE .
DECISIS which means that once a case has been decided one way,
then another case involving exactly the same question or point of
law should be decided in the same manner. This principle, however,
does not necessarily mean that erroneous decisions, or those found
to be contrary to law must be perpetuated. On the contrary, they .
should be abandoned.
 WORLD'S LEGAL SYSTEM 7

(8) The Maritime Legai System; (9) The Q-reek Legai System; (10)
The Slavic Legai System; (11) The Roman Legai System; (12) The
Keltic Legai System; (13) The Japanese Legai System; and (14)
Chapter Il The Mohammedan Legai Syste;-.
Of the said systems, however, there are thr~e legai systems
that have exerted influence to our laws in the past several centuries
WORLD'S LEGAL SYSTEM and which are stili continuously affecting our jurisprudence. The
three are: (l) Roman Law; (2) Anglican or Common Law; and (3)
Mohammedan Law. Of the three legai systems, Roman Law has
greatly influenced Philippine laws. It therefore deserves a more
IMPORTANT TOPICS IN THIS CHAPTER: extensive discussion.
l. The three prevailing legai systems
2. Roman Law 2. ROMAN LAW
3. Value and importance of Roman Law Roman Law is the body of rules and principles adopted to guide
the Romans in the conduct or observance of their personal and
4. Politica! history of Rome
official affairs without necessarily specifying the period or the time
(a) Introduction when those rules were adopted or promulgated. Roman Law, while
(b) Three periods of Rome's politica! history in its first stage of growth, was dominated by ritualism and strong
religious tenor. It was then referred to as JUS QUIRITIUM. Later,
(b.l) Monarchy (753-509 B.C.) it was referred to as the civil law of the Romans, then known as
(b.2) Republic (509-31 B.C.) JUS CIVILE.
(b.3) Empire (31 B.C. -A.D. 1433)
3. VALUE ANO IMPORTANCE OF ROMAN LAW
5. Common Law
Many law students often ask why Roman Law is stili included
6. Mohammedan Law in the law .curriculum and why it has been and stili is a three-unit
7. Blending of legai systems in the Philippines subject.
Our New Civil Code is basically Roman in origin. Numerous
maxims and legal principles stili found in law books are
DISCUSSION continuously being used and cited by law professors and students
and even by law practitioners in their pleadings. It is worthwhile
to mention and to remember some of them, thus:
1. THE THREE PREVAILING LEGAL SYSTEMS
There are many legai systems that have existed in different l. Ignorantia legis non excusat - lgnorance of the law
countries ofthe world, namely: (l) The Mesopotamian Legai System; excuses no one;
(2) The Anglican Legai System; (3) TheEgyptian Legai System; (4) 2. Dura lex sed lex - The law may be harsh, but it is stili
The .Romanesque Legai System; (5) TheHebrew Legai System; (6) the law;
The Ecclesiastica! Legai System; (7) The _9hinese Legai System;
3. Cessante ratione cessat ipsa lex - When the reason for
6
the law ceases, the law also ceases to exist;
8 INTRODUCTION TO LAW
4. Sic utere tuo ut alienum non laedas - The owner o( a
thing cannot make use thereof in such a manner as to
injure the rights of third person (Art. 431, New Civil
Code);
5. Patria potesta - Parental authority;
6. Negotiorum gestio- Unauthorized management;
7. Res perit domino- The thing perishes with.the owner;
8. Jus possidendi - The right to possess;
9. Jus abutendi- The right to abuse;
10. Jus utendi - The right to use;
11. Jus fruendi - The right to the fruits;
12. Jus disponendi - The right to dispose;
13. Jus uendicandi - The right to recover;
14. Nulla poena sine lege - There is no crime when there is
no law punishing it;
15. Salus populi est supreme lex - The welfare of the people
is the supreme law;
16. Caueat emptor - Buyers beware;
17. Solutio indebiti - Unjust enrichment;
18. Aedificum solo credit - The building foliows the land;
19. Accessorium siquitur principale - Land is always
principal;
20. .Nullum tempus occurit regi - Time runs not against the
sovereign.
Modern laws and concepts of persons and family relations,
paterna! authority, marriage, divorce, concubinage, legitimation,
emancipation, adoption, guardianship, property, avulsion, aliuvion,
traditio brevi manu, traditio longa manu, constitutum possessorum,
obligations and contracts, nominate and innominate contracts, sale,
lease, agency, pledge, deposits, wills and successions, quasi-delicts,
quasi-contracts, negotiorum gestio, solutio indebiti and many others
are Roman in origin. Notwithstanding the modifications and the
enormous improvements that have been made, the Philippines and
its citizens cannot remove the great influence that Roman Laws
WORLD'S LEGAL SYSTEM 9
stili exert in our day-to-day life, whether it is in the city or in the
remote barrio. The same thing is true to the rest of the world
affected by the Roman legai system.
Roman Law is of enormous value to modern nations. It is at
hand, ready for use and able to shed light in' the solution of the
numerous complex problems which confront the modern civilized
world. (Sherman, Section 6)
Roman legai literature is also noted for originality. The style
of Roman jurists is simple, clear, brief and precise. Hence, its study
helps students of law in acquiring a correct style of legai expression.
4. POLITICAL HISTORY OF ROME
(a) INTRODUCTION
The evolution of Roman Law is better understood and
appreciated by associating it with the politica! history of Rome.
For around thirteen centuries from the founding of Rome, there
were changes in the government as weli as in the mode and the
needs of the people. Necessarily, each period has its own extent of
politica! and legai development.
The importance of associating the politica} history of a people
with its laws was recognized by Gaius, a Roman jurist, when he
said: "Being about to take up an interpretation of our ancient
statutes, I have thought it essential that the law of the Roman
people should be traced from the foundation of the city, not because
I want 'to write verbose commentarìes, b\lt because in ali matter, I
perceive a thing is complete only when ali parts are assembled,
and surely the most important part of a thing is its beginning."
(Burdick, Principles of Roman Law and Their Relation to Modern
Law, p. 87)
(b) THREE PERIODS OF ROME'S POLITICAL
IDSTORY
Roman politica! history is divided into three periods: Monar·
chy (753-509 B.C.), Republic (509-31 B.C.), and the Empire (31
B.C. - 1453 A.D.).
The first period starts from the earliest thnes to the abolition
of the kingship. The second period starts from the abolition of the
lO INTRODUCTION TO LAW
monarchy to the unification of Italy. The third period is marked by
the breakdown of the old republican form and is characterized by
fierce politica! strife.
(b.1) Monarchy (753-509 B.C.)
Romulus, from whom the name of the city was derived,
is the founder of Rome. The kings who immediately succeeded
him are Numa Pompilius Tullus Hostilus and Ancus Maritus.
Numa Pompilius was described as a wise and pious ruler and
is known to have established the Roman religion and the
adding of two months to the ten-month calendar. During the
reign of Tullus Hostilus, the Romans conquered Alba Longa,
the religious center ofthe Latin people. Under Ancus Maritus,
a number of troublesome Latin cities were conquered and their
inhabitants were brought to Rome.
Shortly before 600 B.C., Rome was conquered by
Etruscan princes from across the Tiber. Tarquinus Priscus-(616
B.C.), the first of the Etruscan kings, drained the city's
marshes and improved the Forum, which was the commerciai
and political center of the town. He carried on many wars
with many neighboring people.
Under Servius Tullius, the second Etruscan king, a treaty
was made with the Latin cities which acknowledged Rome as.
the head of all Italy.
The last of the kings of Rome, Tarquinus Superbus
(Tarquin The Proud), was a tyrant who opposed the people. A
rebellion of the aristocracy against him was led by Junius
Brutus at about 509 B.C. As a result, the Etruscans were
driven from the city and the rest of the Latium, and Rome
became a Republic.
(b.2) Republic (509-31 B.C.)
In this period, constant warfare and conquest prevailed.
The reins of government was in the hands of the aristocratic
citizens called patricians. At first, the plebians (common
citizens) had little to do with the administration of
government. Gradually, however, they removed the barrier
between them due to their continuing demands for reform.
· In the early days of the Republic, the ruling power was
divided between two patrician magistrates elected for one year.
WORLD'S LEGAL SYSTEM 11
They were called consuls which were chosen by an assembly
called Comitia Centuriata. lt was made up of divisions
apportioned in such a way that the votes of the patricians
counted more than the votes of the plebianl:!. The Senate
(Comitia Curiata), the most important body, consisted of 300
men who were chosen by the consuls from the patricians.
Hence, the plebians were oppresed, barred from office, politica!
power, and suffered from unjust debt laws and unfair
distribution of territory won by conquest. To seek redress, the
plebians in 494 B.C., marched out of Rome and threatened to
make a new city. The patricians acceded to the demands of
the plebians. The plebians were further granted the right to
be represented by new officials, called Tribunes, which had
the right to vote on any act of any magistrate which was unjust
to any citizen.
The plebians continued to gain other rights and an
assembly oftheir own, called concilium plebis, was recognized.
They appointed a ten-man commission called Decemvirs, to
put state laws into writing and have them engraved on 12
bronze tablets in 450 B.C. In 445 B.C., the plebians won the
right to marry patricians by virtue of Lex Canuleia.
Sometime in 367 B.C., Licensian laws are passed which
revised debt laws, limited holdings to 300 acres of land, and
compelled the large landowners to employ a certain proportion
of the laborers. In 350 B.C., the plebians were admitted to
the dictatorship and extraordinary magistracy whereby
supreme power a t criticai times were given to one man.
The growing power of the plebes was marked by the
graduai rise of a new voting body, the Comitia Tributa,. where
one man's vote counted as much as another man's vote. While
the equalization between the plebians and the patricians was
being realized, Rome was gradually extending its power to
the leadership of the Italian people. The lands that were
conquered by the Romans were welded into one single nation.
It did not exploit the conquered cities of Italy for its own
interests. Instead, it granted many of them the privileges of
human citizenship. Most of this people were given the status
of allies. They had self-government and the right to trade and
intermarry in Rome. They did not, however-, have the right to
vote.
12 INTRODUCTION TO LAW
All of Italy was dotted with colonies of Roman citizens.
Most of the colonies retained their full civic rights and nearly
one-sixth of all ltaly were annexed and distributed among
these Roman citizens. Thus, a common interest in the welfare
of Rome spread throughout the Italian Peninsula. The
struggles with Carthage ended with Rome's victory. One
conquest led to another. U p per Italy, Sicily, Spain, Macedonia,
Greece and Asia Minor were subdued and made Roman
provinces.
Intoxicated by their sudden rise to power, the new
generation of states departed from the wise policies of their
great predecessors. They fought ruthlessly and ruined the
countries they conquered. Most of the conquered lands were
administered by governors. The governors committed abuses
while administering the government and tried to amass wealth
while in office. The exorbitant taxes enriched the greedy
collectors and the ancient simplicity of Roman life gave way
to luxury and pomp. Morals were undermined and vice and
corruption flourished. The peasants were oppressed and were
deprived of their landholdings. These events led to a bitter
hostility between the aristocratic few and the poor segments
of society. A few patriotic statesmen tried in vain to avert the
climax. The Gracchi brothers carne forward to the people. They
proposed laws to redistribute the public lands and to limit
the powers of the corrupt Senate. Both men fell victims to
their foes, Tiberius in 133 B.C. and Gaius 12 years later.
The death of Tiberius marked the beginning of a century
of revolution and civil war that ended in the establishment of
the Roman Empire. Great men of action reorganized the state.
• Among them were Sulla, Pompey, Cicero, and Caesar. They
made themselves masters of the disrupted state, sometimes
uniting to make their position secure and sometimes waging
savage civil warfare.
The thing that saved the ultimate destruction of Rome
was the emergence ofthreebrilliant statesmen, Gaius, Julius
Caesar and his nephew, Augustus.
Scrapping the old republican framework, they remolded
the structure into an empire. All power was gradually
concentrated in the hands of a single ruler, who was backed
by the Roman Army.
WORLD'S LEGAL SYSTEM 13
(b.3) Empire (31 B.C. -A.D. 1433)
The reign of Augustus marked the end of the revolu-
tionary period. The establishment of the empire was followed
by two centuries of profound peace, and in the provinces
responsible men held power. Roman citizens,P.ip was extended
to all free men throughout the Empire and Roman law was
administered in every court. Augustus was followed by his
stepson, Tiberius (A.D. 14-37). His reign was followed by that
of Caligula, Claudius, and Nero, the last ruler of the line of
Augustus upon whose death ended the first century of peace.
After another century, the passion fo:- a life of luxury existed
in all classes. Selfishness and self-indulgence had become the
first law of life. Slave labor had degraded the once sturdy
peasantry to the status of serfs or beggars. The middle class,
which once had been the backbone of the nation, had almost
disappeared. In Roman society, there were then only the rich
and the very poor. For two years, after the two centuries of
peace, there were struggles for the throne among the military
commanders.
The long centuries of the Empire fall naturally into two
periods. In the earlier period, usually known as the
"Principate," though the emperor is in fact supreme, its power
is disguised under republican fo:r:ms. This existed in the period
of time stated above. As the disguise vanished in the third
century A.D., the period was then called the "Dominate"
because the emperor is no longer in theory, merely the
princ.eps, or "first citizen"; he is dominus- "master"- ofhis
subjects. This undisguised autocracy took piace at about 214
A.D. Diocletian ascended the throne. This emperor introduced
important reforms amounting to a change in the Constitution.
The Senate was leveled down to that of the city council of
Rome, thereby having practically no control over the Emperor
himself. From Diocletian's time until its end, the Roman
Empire remained an absolute monarchy. He also instituted
an administrative division between the Western and Eastern
halves of the Empire. This cleavage was accentuated when
Emperor Constantine transferred his capitai to Constantinople
(Greek City of Byzantium on the Black Sea) in 330 A.D. This
marked the graduai disintegration ofthe Western Empire, and
in the 5th century, when the last Roman Emperor of the West,
Romulus Augustus, was deposed, the Western Empire, finally
14 INTRODUCTION TO LAW

collapsed with the Teutonic invasions (476 A.D.). The Eastern

Empire, on the other hand, has a long future still before it,
which was only to end with the capture of Constantine by the
Turks in 1453 A.D. (Comparative Study: Roman Law and Chapter 111
Philippine Law, pp. 3-8, Rolando A. Suarez)

5. COMMON LAW LAW ANO ITS APPLICATION

Common Law is derived from case law and books of authority.
It is an unwritten law which does not emanate from the express
will of the legislature. Rather, it is founded on maxims, rules and
principles derived from time-honored usages and customs which
received acceptance from the courts of law.
This legal system has prevailed and is still prevailing in
England, Ireland, Australia, Wales, New Zealand, Canada and in
the United States.
6. MOHAMMEDAN LAW
Mohammedan Law is not strange in the Philippines for it has
heen and is still being observed by Muslims in Mindanao provided
it does not conflict with the generallaw of the land. It is derived
principally from the Koran and from writings of Islamic jurists.
The teachings of Mohammed also serve as source of this legal
system. Islamic countries who believe in Allah and his prophet
Mohammed still observe this legal system. Some of these countries
are Iran, Afghanistan, Malaysia, Indonesia, Turkey, those in Africa
and others.
7. BLENDING OF LEGAL SYSTEMS IN THE PHILIPPINES
The three legal systems have met and blended into one legal
system in the Philippines. Our New Civil Code is basically Roman
in origin. Our procedurallaws are still being observed by Filipino
Muslims insofar as they do not conflict with the generai laws of
the land.
IMPORTANT TOPICS IN THIS CHAPTER:
l. Court's duty to decide every case
2. Application of laws and interpretations of laws
3. Statutory construction, its concept, purpose, and effect
4. Construction distinguished from interpretation
5. Meaning of the rule: "One must interpret first before he
construes"
6. Intrinsic aids distinguished from extrinsic aids
7. Purpose of interpretation and construction
8. When is it necessary and not necessary to interpret and
construct?
9. Who interprets the law and who determines legislative
intent?
10. Which prevails - the letter of the law or the spirit of
the law?
11. Aids in interpretation and conatruction
12. Simplification of the rule regarding the use of extrinsic
aids

15
16 INTRODUCTION TO LAW
DISCUSSION
1. COURT'S DUTY TO DECIDE EVERY CASE
A judge cannot decline to render judgment by reason of the
silence, obscurity or insufficiency of the laws. (Article 9, New Civ il
Code) In other words, he must decide the case assigned to him
whether or not he knows what law shall be applied. In case of
silence, obscurity or insufficiency of the laws, a judge may stili be
guided by the following:
l. Customs which are not contrary to law, public order or
public policy;
2. Court decisions, foreign or local, in similar cases;
3. Legai opinions of qualified writers and professors;
4. Generai principles of justice and equity; and
5. Rules of statutory construction.
In criminal cases, however, it is an established rule that there
is no crime when there is no law punishing it -Nulla Poena Sine
Lege. Ifthere is no law, therefore, which punishes an act complained
of, the judge must dismiss the case.
Interpretations of Laws
It is the duty of the judge to apply the law without fear or
favor. In case of doubt in the interpretation or application of the
laws, it is presumed that the lawmaking body intended right and
justice to prevail. (Article 10, New Civil Code)
There are many rules of statutory construction but in order
not to saddle and confuse the beginner in the study of law, it is
enough in the meantime to know the most basic rules, namely:
l. When the law and its meaning is clear and unmistakable,
there is no need to interpret it any further;
2. When construction or interpretation is necessary, the
court should interpret the law according to the meaning
the legislature intended to give it;
3. If there are two possible interpretations of a law, that
which will achieve the ends desired by Congress should
be adopted;
LAW AND ITS APPLICATION 17
4. Laws of pleading, practice and procedure are likely
liberally construed in order to promote their object and
to assist the parties in obtaining just, speedy and
inexpensive determination of every action and proceeding;
5. In case of doubt in the interpretation ~nd applìcation of
laws and when ali other rules of statutory construction
fail, it is presumed that the lawmaking body intended
right and justice to prevail.
2. APPLICATION OF LAWS
In applying the law, the court should discover the real intent
and purpose of the legislature. If that intent and purpose can be
discovered within the law, it is the duty of the court to carry out
that intention.
If the same cannot be discovered within the law, the court
shall be guided by extrinsic aids.
3. STATUTORY CONSTRUCTION, ITS CONCEPT, PURPOSE
ANO EFFECT
STATUTORY CONSTRUCTION DEFINED
Statutory construction is the act or process of discovering and
expounding the meaning and intention of the authors of the law
with respect to its application to a given case, where that intention
is rendered doubtful, among others, by reason of the fact that the
given case is not explicitly provided for in the law. (Caltex
[Philippines], Inc. vs. Palomar, L-19650, September 29, 1966, 18
SCRA247)
4. CONSTRUCTION DISTINGUISHED FROM INTERPRETATION
Construction and interpretation have the same purpose and
that is to ascertain and give effect to the legislative intent. A
distinction, however, has been drawn between construction and
interpretation. One who interprets makes use of intrinsic aids or
those found in the statute itself, while one who constructs makes
use of extrinsic aids or those found outside of the written language
of the law. Based on this distinction, the basic rule therefore is -
ONE MUST INTERPRET FIRST BEFORE HE CONSTRUES.
 INTRODUCTION TO LAW
18
5. MEANING OF THE RULE: "ONE MUST INTERPRET FIRST
BEFORE HE CONSTRUES"
In trying to ascertain the legislative intent, courts should first
be guided by intrinsic aids, or those found in the law itself. If the
legislative intent could be ascertained by merely making use of
intrinsic aids, there is no need to make use of extrinsic aids, or
those found outside of the written language of the law. This is the
consistent ruling of the Supreme Court in a long line of cases.
(Commissioner of Internal Revenue vs. Limpan lnvestment
Corporation, L-28571 and L-28644, July 31, 1970; United Christian
Missionary Society vs. Social Security System, L-26712-16, December
17, 1969; Hidalgo vs. Hidalgo, L-25326, May 29, 1970; Casela vs.
Court of Appeals)
6. INTRINSIC AIDS DISTINGUISHED FROM EXTRINSIC AIDS
Intrinsic aids are any of the following: title, preamble, words,
phrases and sentences context; punctuation; headings and marginai
notes; and legislative definitions and interpretation clauses. All of
these are found in the law itself.
Extrinsic aids may consist of contemporaneous circumstances,
policy, legislative history of the statute, contemporaneous or
practical construction, executive construction, legislative
construction, judicial construction, and construction by the bar and
legai commentators.
7. PURPOSE OF INTERPRETATION ANO CONSTRUCTION
Interpretation and construction have the same purpose and
that is to ascertain and give effect to the legislative intent.
8. WHEN IS IT NECESSARY ANO NOT NECESSARY TO INTER-
PRETANO CONSTRUCT?
When Necessary
It is necessary to interpret or construct when any of the
following reasons exists:
l. When the language of the statute is ambiguous, doubtful
or obscure when taken in relation to a set of facts;
2. When reasonable minds disagree as to meaning of the
language used in the statute.
LAW AND ITS APPLICATION 19
When Not Necessary
lt is not necessary to interpret or construct when the law
speaks in clear and categorica! language. The duty of the court, in
such a case, is to APPLY THE LAW, NOT TO INTERPRET IT. (Go
Ka Toc & Sons vs. Rice & Corn Board, L-23607, May 23, 1967;
People vs. Mapa, L-22301, August 30, 1967; Luzon Security Co. vs.
De Gracia, L-25659, October 31, 1969)
9. WHO INTERPRETS THE LAW ANO WHO DETERMINES
LEGISLATIVE INTENT?
Anyone can interpret the law. Lawyers, policemen, arbiters,
administrative boards and agencies, government as well as private
executives are involved from time to time in the interpretation of
laws. Their interpretation, however, is not necessarily conclusive
nor can they bind the courts. Hence, in many occasions, the
decisions of regulatory boards and administrative agencies have
been elevated and appealed to the Supreme Court in cases where
there is abuse of discretion and authority or when there is violation
of due process or denial ~t>substantial justice or erroneous
interpretation of the law. fMO,ntrade FMMC Division Employees and
Workers Union vs. Bacungan, G.R. No. 48437, September 30, 1986,
Second Division, Feria, J.)
The judiciary has the delicate task of ascertaining the
significance of a constitutional or statutory provision, an executive
order, a procedural or a municipal ordinance. lt discharges a role
no crucial than the roles played by the two other departments in
maintaining the rule of law. To assure stability in legal relations
and avoid confusion, it has to speak with one voice. Logically and .
rightly, it does so with finality through the highest judicial organ,
the Supreme Court. What it says is definite and authoritative,
binding on those who occupy the lower ranks in the judicial
hierarchy. (çmuie vs. Intermediate Appellate Court, G.R. No. 70443,
September, Second Division, Gutierrez, Jr., J.)
1O. WHICH PREVAILS - THE LETTER OF THE LAW OR THE
SPIRIT OF THE LAW?
When the language of the law is clear and unequivocal, the
court's duty is to apply it, not to interpret it. The Supreme Court,
in the case of Chartered Bank Employees Association vs. Ople, G.R.
 20 INTRODUCTION TO LAW
No. 44747, August 28, 1985, restated the said rule in more elaborate
language. It said: "If the language of the law is clear and unequi-
vocal, then read the law to mean exactly what it says. lf not, look
for the intention of the legislature."
What if the letter of the law conflicts with its spirit, which
prevails?
There are two schools of thought on this matter. In the case
of People vs. Sales, et al., f{R. No. 66469, July 29, 1986, Justice
Isagani Cruz articulated his thought on this matter. He said: "A
too literal reading of law is apt to constrict rather than fulfill" is
usually found not in the "letter that killeth but in the spirit that
vivifieth," which is not really evanescent or elusive. Judges must
look beyond and not be bound by the language of the law seeking
to discover by their own lights the reason and the rhyme for its.
enactment. That they may properly apply in accordance to its end,
they need and must use not only learning but also vision."
The thinking of Justice Isagani Cruz is more in line with
Artide lO of the Civil Code which says:
"In case of doubt in the interpretation or application of the
laws, it is presumed that the lawmaking body intended right and
justice to prevail." This is also the gist of the decisions of the
Supreme Court in the old cases ofTorres vs. Limhays, 56 Phil. 141,
De Coster vs. Olondriz and Esendero, 50 Phil. 725, and in the
celebrated case of Dominador Aytona vs. Andres Castillo, et al., L-
19313, January 19, 1962.
Former Chief Justice Ramon Aquino, on the other hand, finds
it risky to rely on the so-called "spirit of the law." He said: "It is
dangerous to rely on the so-called spirit of the law which we cannot
Sj;)e nor handle and about which we do not know very much."
/Nillanueva vs. Commission on Elections, G.R. No. 54718, December
4, 1985)
11. AIDS IN INTERPRETATION ANO CONSTRUCTION
I. USE INTRINSIC AIDS BEFORE RESORTING
TO EXTRINSIC AIDS
In determining the intention of the legislature, courts should
resort first to intrinsic aids before resorting to extrinsic aids.
LAW AND ITS APPLICATION 21
Intrinsic aids are any of the following: title; preamble; the
words, phrases and sentences context; punctuation; headings and
marginai notes; legislative definition and interpretation clauses.
l. TITLE - That which expresses the subject matter of
the law. It can help in the construction of statutes but it is not
controlling and not entitled to much weight. · (Commissioner of
Customs vs. Reluvia, G.R. No. L-118860, May 29, 1969)
2. PREAMBLE - That part of the statute following the
title and preceding the enacting clause which states the reasons or
the objectives of the enactment (Ace Bus Transportation vs. South
Hudson Country Blood Bus Owners Association, 177 A. 360). It
cannot enlarge or confer powers, or cure inherent defects in the
statute. (People vs. Hon. A. Purisima, et al., G.R. Nos. L-42050-66,
November 30, 1978)
3. WORDS, PHRASES AND SENTENCES CONTEXT-
The intention of the legislature must primarily be determined from
the language of the statute and such language consists of the words,
phrases and sentences used therein. The meaning of the law should,
however, be taken from the generai consideration of the act as a
whole and not from any single part, portion or section or from
isolated words and phrases, clauses or sentences used.
4. PUNCTUATION - It is an aid of low degree in
interpreting the language of a statute and can never control against
the intelligible meaning of the written word. However, if the
punctuation of the statute gives it a meaning which is reasonable
and in apparent accord with the legislative will, it may be used as
an additional argument for adopting the literal meaning of the
words thus punctuated.
5. HEADINGS AND MARGINAL NOTES - If the
meaning of the statute is clear or if the text of the statute is clear
they will prevail as against the headings, especially if the headings
have been prepared by compilers and not by the legislature.
6. LEGISLATIVE DEFINITION AND INTERPRE·
TATION - If the legislature has defined the words used in the
statute and has declared the construction to be placed thereon, such
definition or construction should be followed by the courts. The rules
are as follows:
(a) If a law provides that in case of doubt it should be
22 INTRODUCTION TO LAW
construed or interpreted in a certain manner, the courts
should follow such instruction.
(b) In case of conflict between the interpretation clauses and
the legislative meaning, as revealed by the statute
considered in its totality, the latter shall prevail.
(c) A term is used throughout the statute in the same sense
in which it is first defined.
(d) Legislative definition of similar terms in other statutes
may be resorted to EXCEPT where a particular law
expressly declares that its definition therein is limited
in application to the statutes in which they appear.
II. EXTRINSIC AIDS
Extrinsic aids are of the following: (l) contemporaneous
circumstances; (2) policy; (3) legislative history of the statute; (4)
contemporaneous or practical construction; (5) executive
construction; (6) legislative construction; (7) judicial construction;
and (8) construction by the bar and legai commentators.
Extrinsic aids can be resorted to only after the intrinsic aids
have been used and exhausted.
l. CONTEMPORANEOUS CffiCUMSTANCES- These
are the conditions existing at the time the law was enacted:
(a) History of the times and conditions existing at the time
the law was enacted;
(b) Previous state of the law;
(c) The evils sought to be remedied or corrected by the law;
and
(d) The customs and usages of the people.
The above-mentioned circumstances constitute the reasons
why the law was enacted. Hence, the one interpreting the law
should place himself in the position and circumstances of those who
used the words in question and be able to feel the atmosphere, the
conditions and the reasons why the law was enacted.
2. POLICY - The generai policy of the law or the settled
policy of the state may enlighten the interpreter of the law as to
the intention of the legislature in enacting the same. Hence, if a
LAW AND ITS APPLICATION 23
new agrarian law is enacted today and few years from now, there
will arise the need to find out why such a law is enacted, the
conditions, the prevailing sentiment of the people, the policy of the
State, and the executive order issued by the Office ofthe President
preceding the legislative enactment will throw light upon the
intention ofthe legislature in enacting said law.'The same thing is
true if death sentence is imposed for drug pushers and for those
currently involved in the so-called "satanism" offenses. The
conditions of the times and the very destructive and heinous crimes
committed even in broad daylight, whether in the city or in the
provinces, will convince future interpreters of the law that such a
penalty is needed to protect society.
3. LEGISLATIVE HISTORY OF THE STATUTE- Such
history may be found in reports of legislative committees, in the
transcript of stenographic notes taken during a hearing, legislative
investigation, or legislative debates.
Are personal opinions of some legislators appropriate aids of
construction?
As a generai rule, they are not appropriate aids of construction.
However, if there is a unanimity among the supporters and
oppositors to a bill with respect to the objective sought to be
accomplished, the debates may then be used .· as evidence of the
purpose of the act.
4. CONTEMPORANEOUS AND PRACTICAL CONS-
TRUCTION - Those who lived at or near the time when the law
was passed were more acquainted with the conditions and the
reasons why that law was enacted. Their understanding and
application of the law, especially if the same has been continued
arid acquiesced by the judicial tribunals and the legai profession,
deserve to be considered by the courts.
5. EXECUTIVE CONSTRUCTION- The construction
given by the executive department deserves great weight and should
be respected if said construction has been formed and observed for
! a long period of time. The rules to remember are as follows:
(a) Congress is deemed to have been aware of the
contemporaneous and practical construction made by the
officers charged with the administration and enforcement
ofthe law.
24 INTRODUCTION TO LAW

(b) The courts should respect that contemporaneous

construction EXCEPT if it is clearly erroneous.
(c) Executive construction has more weight if it is rendered
by the Chief Legai Adviser of the government who can Chapter IV
issue opinions to assist various departments of the
govemment charged with the duty to administer the law.
THE LEGAL PROFESSION ANO
(d) The opinion, however, of the Chief Legai Adviser is
subservient to the ruling of the judiciary which is in THE QUALIFICATIONS ANO PROCEDURE
charge of applying and interpreting laws. FOR ADMISSION TO THE PRACTICE OF LAW
6. LEGISLATIVE CONSTRUCTION - Legislative
construction is entitled to consideration and great weight but it
cannot control as against the court~s prerogative to decide on what
is the right or wrong interpretation. IMPORTANT TOPICS IN THIS CHAPTER:

7. JUDICIAL CONSTRUCTION- It is presumed that l. Qualification for admission to the practice of law
the legislature was acquainted with and had in mind the judicial 2. First requirement (before admission to the bar)
construction of former statutes on the subject. It is also presumed
(a) Citizenship
that the statute was enacted in the light of the judicial construction
that the prior enactment had received. With respect to a statute (b) Age
adopted from another state, it is presumed that it was adopted (c) Residence
with the construction placed upon i t by courts of that state.
(d) Educational qualification
Should this construction be followed?
(e) Moral and other qualifications
It should be followed only if it is reasonable, in harmony with
justice and public policy and consistent with the locallaw. (f) Bar examinations ·
(g) Oath
8. CONSTRUCTION BY THE BAR AND LEGAL
COMMENTATORS - It is presumed that the meaning publicly (h) Attorney's roll
given a statute by the members of the legai profession is a true
3. Second requirement (after admission to the bar)
one and regarded as one that should not be lightly changed. (50
Am Jur, p. 312) The opinion and commentaries oftext writers and 4. Purpose of imposing said requirements
legai commentators, whether they are Filipinos or foreigners, may
5. Procedure for admission to the practice of law
also be consulted as, in fact, they are oftentimes cited or made as
references in court decisions. 6. Consequence of failure to pass said examination
7. Practice of law is more of a privilege than a right
12. SIMPLIFICATION OF THE RULE REGARDING THE USE OF
EXTRINSIC AIDS 8. Practice of law is a profession and not a business
Extrinsic aids, such as those mentioned above, are entitled to 9. The duties of a lawyer
respect, conslderation and weight but the courts are at liberty to
10. Lawyer's compensation
decide whether they are applicable or not to the case brought to it
for decision.
25
 INTRODUCTION TO LAW THE LEGAL PROFESSION AND THE QUALIFICATIONS 27
26
AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW

11. Disciplinary power over attorneys d.2.5 History

12. Integrated Bar of the Philippines d.2.6 Economics

13. Integration of the bar defined d.3 He must have completed a Bachelor of Laws degree
in a law school or university approved and recog-
14. Legai and constitutional basis nized by the Secretary of Education.
15. Supporting arguments in support of constitutionality and · e. Moral and otber qualifications - He must be of good
.legality moral character, and that no charges against him,
involving moral turpitude have been filed or are pending
in any court in the Philippines.
DISCUSSION
f. Bar examinations - He must pass the bar exami-
nations.
1. QUALIFICATION FOR ADMISSION TO THE PRACTICE OF
I..AW f.1 In order that a candidate may be deemed to have
passed his examinations successfully, he must have
There are two basic requirements that should be complied with
obtained a generai average of 75 percent in any
before a person can engage in the practice of law.
subject. In determining the average, the subjects in
the examination shall be given the following relative
2. FIRST REQUIREMENT {Before Admission to the Bar) weights: Civil Law, 15 percent; Labor and Social
He should first be admitted to the bar. This requirement is Legislation, 10 percent; Politica! and International
accomplished by complying with the following requirements (Section Law, 15 percent; Taxation, 10 percent; Remedial
2 in relation to Sections 5, 6, and 14, Rule 138, Revised Rules of Law, 20 percent; Legai Ethics and Practical Exer-
cises, 5 percent.
Court):
a. Citizenship - He must be a citizen of the Philippines; g. Oath - He must take the lawyer's oath before the
Supreme Court itself. (Section 17, Rule 138, Revised Rules
b. Age- He must at least be twenty-one (21) years of age; o{Court)
c. Residence - He must be a resident of the Philippines; b. · Attorney's Roll - He must sign the roll of attorneys
d. Education Qualification and receive from the Clerk of Court of the Supreme Court
a certificate of the license to practice. (Sections 18 and
d.1 He must have completed a four-year high school 19, Rule 138, Revised Rules of Court)
course which is a prerequisite to a bachelor's degree
in arts or sciences;
3. SECOND REQUIREMENT (After Admission To The Bar)
d.2 He must have completed a bachelor's degree with
any of the following subjects as major or field of The lawyer must remain in good and regular standing. This
concentration: requires the following:
d.2.1 Political Science (a) He must be a member of the IBP (Integrated Bar of the
d.2.2 Logic Philippines);
d.2.3 English (b) He must regularly pay all IBP membership dues and
other lawful assessment;
d.2.4 Spanish
28 INTRODUCTION TO LAW
(c) He must observe faithfully the rules and ethics of the
profession;
(d) He should be subject to judicial disciplinary control.
4. PURPOSE OF IMPOSING SAIO REQUIREMENTS
The said requirements are imposed to see to it that those who
are admitted to the practice of law are mentally and morally fit to
discharge their duties to their clients, to the courts, and to the public
in generai.
5. PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
Anyone who desires to be admitted to the practice of law
should pass the bar examinations conducted by a committee of bar
examiners appointed by the Supreme Court.
Examinations for admission to the Bar of the Philippines shall
take piace annually in the City of Manila. They shall be held in
four days to be designated by the chairman of the committees on
bar examiners. The subjects shall be distributed as follows:
First day: Politica! and Intemational Law (moming) and Labor
and Social Legislation (aftemoon);
Second day: Civil Law (moming) and Taxation (aftemoon);
Third day: Mercantile Law (morning) and Criminal Law
(afternoon);
Fourth day: Remedial Law (morning) and Legai Ethics and
Practical Exercises (afternoon). (Sections 8 and 11, Rule 38, Rules
ofCourt)
The committee ofbar examiners shall be composed of a Justice
of the Supreme Court, who shall act as chairman, and who shall
be designated by the court to serve f0r one year, and eight members
of the Integrated Bar of the Philippines who shall hold office for a
period of one year. The names of the members of this committee
shall be published in each volume of the official reports.
Not later than February 15th after the examination, or as soon
thereafter as may be practicable, the committee shall file its report
on the result of such examination. The examination papers and
notes of the committee shall be filed with the clerk and may there
THE LEGAL PROFESSION AND THE QUALIFICATIONS 29
AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
be examined by the parties in interest, after the court has approved
the report.
In order that a candidate may be deemed to have passed his
examinations successfully, he must have obtained a generai average
of 75 percent in all subjects, without falling belòw 50 percent in
any subject. In determining the average, the' subjects in the
examination shall be given the following relative weights: Civil Law,
15 percent; Labor and Social Legislation, 10 percent; Mercantile
Law, 15 percent; Criminal Law, 10 percent; Politica! and Interna-
tional Law, 15 percent; Taxation, 10 percent; Remedial Law, 20
percent; Legai Ethics and Practical Exercises, 5 percent.
6. CONSEQUENCE OF FAILURE TO PASS SAIO EXAMINATION
Candidates who have failed the bar examinations for three
times shall be disqualified from taking another examination unless
they show to the satisfaction of the court that they have enrolled
in and passed regular fourth year classes as well as attended a
pre-bar review course in a recognized law school.
The professors of the individuai review subjects attended by
the candidates under this rule shall certify under oath that the
candidates have regularly attended classes and passed the subjects
under the same conditions as ordinary students and the ratings
obtained by them in the particular subject.
7. PRACTICE OF LAW IS MORE OF A PRIVILEGE THAN A RIGHT
The practice of law is not a matter of right. It is a privilege
accorded only to those who measure up to certain rigid standards
of mental and moral fitness. Anyone who is granted the said
privilege is expected to maintain the said rigid standards.
In three separate cases, the Supreme Court made the following
statements:
Tan vs. Sabandal, B.M. No. 44
Bequia vs. Sabandal, SBC 66, February 24, 1992
Melencio-Herrera
"The practice of law is not a matter of right. It is a privilege
bestowed upon individuals who are not learned in the law but who
are also known to possess good moral character."
30 INTRODUCTION TO LAW
Legarda vs. Court of Appeals
G.R. No. 94457, June 10, 1992
En Banc, Per Curiam
. "Lawyers are indispensable part of the whole system of
administering justice in this jurisdiction. At a time when strong
and disturbing criticisms are being htirled at the legai profession,
strict compliance with one's oath of offìce and the canons of
professional ethics is imperative."
"Lawjrers should be fair, honest, respectable, above suspicion
and beyond reproach in dealing with their clients. The profession
is not synonymous with an ordinary business profession. It is a
matter of public interest."
8. PRACTICE OF LAW IS A PROFESSION ANO NOT A BUSI-
NESS
Law advocacy is not a capitai that yields profits. The returns
it gives birth to are simple rewards for job done or service rendered.
lt is a calling that, unlike mercantile pursuits which enjoy a greater
deal of freedom from government interference, is impressed with
public interest, for which it is subject to State regulation. (Metropo-
litan Bank and Trust Company vs. Court of Appeals, G.R. Nos.
86100-03, January 23, 1990, Second Division, Regalado, J.)
Membership in the legai profession is achieved only after a
long and laborious study. By years of patience, zeal and ability, the
attorney acquires a fixed means of support for himself and his
family. This is not to say, however, that the emphasis is on the
pecuniary value of this profession but rather on the social prestige
and intellectual standing necessarily arising from and attached to
the same person of the fact that everyone is deemed an officer of
the court. (Conrad vs. Navarro, Adm. Case No. 2033; Ortigas vs.
Navarro, Adm. Case No. 2148, May 9, 1990, En Banc, Per Curiam)
On the one hand, the profession of an attorney is of great
importance to an individuai and the prosperity of his life may
depend on its exercise. The right to exercise it ought not to be lightly
or capriciously taken from him. On the other hand, it is extremely
desirable that the respectability of the Bar should be maintained
and that its harmony with the bench should be preserved. For
theses objects, some controlling power, some moderation, and
judgment, must be exercised. (Conrad vs. Navarro, Supra; Ortigas
vs. Navarro, Supra)
THE LEGAL PROFESSION AND THE QUALIFICATIONS 31
AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
9. THE DUTIES OF A LAWYER
The lawyer has the following duties:
l. To maintain allegiance to the Republic of the Philippines
and to support the constitution and obey the law~ of the Philippines;
2. To observe and maintain the respect due to the courts of
justice and judicial officers;
3. To counsel or maintain such actions or proceedings only
as appear to him to be just, and such defense only as he believes to ,
be honestly debatable under the law;
4. To employ, for the purpose of maintaining the causes
confided to him, such means only as are consistent with truth and
honor, and never seek to mislead the judge or any judicial officer
by an artifice or false statement of fact or law;
5. To maintain inviolate the confidence, and at every perii
to himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except from
him or with his knowledge and approvai;
6. To abstain from all offensive personality and to advance
no fact prejudicial to the honor or reputation of a party or witness,
unless required by the justice of the cause with which he is charged;
7. Not to encourage either the commencement or the
continuance of an action or proceeding, or delay any man's cause,
from any corrupt motive or interest; ·
8. · Never to reject, for any consideration personal to himself,
the cause of the defenseless or oppressed;
9. In the defense of a person accused of a crime, by all fair
and honorable means, regardless of his personal opinion as to the
guilt of the accused, to present every defense that the law permits
to the end that no person may be deprived of life or liberty, but by
due process of law.
10. LAWYER'S COMPENSATION
An attorney shall be eiÌtitled to have and recover from his
client not more than a 'reasonable compensation for his services,
with a view of the importance of the subject matter of the
controversy, the extent of the services rendered, and the professional
32 INTRODUCTION TO LAW -,
•
standing of the attorney. No court shall be bound by the opinion of
attorneys as expert witnesses as to the. proper compensation, but
may disregard such testimony and base its conclusion on its own
professional knowledge. A written contract for services shall control
the amount to be paid therefor unless found by the court to be
unconscionabl~ or unreasonable.
11. OISCIPLINARY POWER OVER ATTORNEYS
A member of the bar may be removed or suspended from his
office as attorney by the Supreme Court for any deceit, malpractice,
or other gross misconduct'~n such office, grossly immoral conduct,
or by reason of his convict\.tm of a crime involving moral turpitude,
or for any violation of the oath which he is required to take before
admission to practice, or for a willfùl disobedience of any lawful
order of a superior court, or for corruptly or willfully appearing as
such attorney for a party to a case without authority to do so. The
practice of soliciting cases at law for the purpose of gain, either
personally or through paid agents or brokers, constitutes
malpractice.
The Court of Appeals or the Regional Trial Court may suspend
an attorney from practice for any of the causes named in the last
preceding section, and after such suspension, such attorney shall
not practice his profession until further action of the Supreme Court
in the premises.
Upon such suspension, the Court of Appeals or the Regional
Trial Court shall forthwith transmit to the Supreme Court a
certified copy of the order of suspension and a full statement of the
facts upon which the same was based. Upon the receipt of such
certified copy and statement, the Supreme Court shall make full
investigation of the fact involved and make such order revoking or
extending the suspension, or removing the attorney from his office
as such, as the facts warrant.
No attorney shall be removed or suspended from the practice
of his profession, until he has had full opportunities upon reasonable
notice to answer the charges against him, to produce witnesses in
his own behalf, and to be heard by himself or counsel. But if upon
reasonable notice he fails to appear and answer the accusation,
the court may proceed to determine the matter ex parte.
THE LEGAL PROFESSION AND THE QUALIFICATIONS 33
AND PROCEDURE FOR ADMISSION TO THE PRACTICE OF LAW
12. INTEGRATEO BAR OF THE PHILIPPINES
The Supreme Court ordained the integràtion of the Philippine
Bar on January 16_, 1973.
Under the 1987 Constitution, the Supreme Court has the
power, among others to promulgate rules concerning the integrated
bar. Artide VIII, Section 5 of the 1987 Constitution provides as
follows:
"Sec. 5. The Supreme Court shall have the following
powers: x x x
"(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, x x x." ·
13. INTEGRATION OF THE BAR OEFINEO
This is the official unification of alllawyers in the Philippines
under one official national organization which is known and called
as INTEGRATED BAR OF THE PHILIPPINES.
14. LEGAL ANO CONSTITUTIONAL BASIS
Section 5(5) of Art. VIII of the 1987 Constitution is the
constitutional basis.
The legai basis is founded on the principle that - THE
INHERENT POWER OF THE SUPREME COURT TO
REGULATE THE BAR INCLUDES THE AUTHORITY TO
INTEGRATE THE BAR.
15. SUPPORTING ARGUMENTS IN SUPPORT OF CONSTITU-
TIONALITY ANO LEGALITY
(l) To compel a lawyer to be a member of the integrated bar
does not violate his constitutional freedom to associate (or the
corollary right not to associate).
(2) Integration does not make a lawyer member of any group
of which he is not already a member. He became a member of the
bar when he passed the bar examinations.
34 INTRODUCTION TO LAW

(3) For the court to prescribe dues to be paid by the members

does not mean that the Court levies a tax. "A membership fee in
the integrated bar is an exaction for regulation, while the purpose
of a tax is revenue. lf the court has the inherent power to regulate Chapter V
the bar; it follows that as an incident to regulation, it may impose
a membership fee for that purpose. x x x"
(4) The Supreme Court, in order to further the State's
PERSONS
legitimate interest in elevating the quality of professional services,
may require that the cost of improving the profession in this fashion
be shared by the subjects and beneficiaries of the regulatory
IMPORTANT TOPICS IN THIS CHAPTER:
program - the lawyers.
l. Concept of a person
(5) And because it is a new regulation in exchange for new
benefits, it is not retroactive, it is not unequal, it is not unfair. (In 2. Capacity
re: Integration of the Bar of the Philippines, 22 SCRA 22-28-31,
3. When does the personality of a natural person begin?
1973; In re: Edillon, C:.R. No. AC-1928, August 30, 1978)
4. When does the personality of a private corporation
(private juridical person) begin?
5. When is a fetus considered horn?

DISCUSSION

1. CONCEPT OF A PERSON
In Roman Law,herson is one who is capable of exercising
ownership and legai rights and to incur and contract obligations.
Under this concept, a slave is not considered a person, he being
merely regarded then as a chattel, a thing that can be sold or
disposed of a t the discretion of the master. Hence, a slave does not
have the legal capacity to exercise ownership and to incur and
contract oblig~tions.
The old and the new constitutions of the Philippines, on the
other hand, guarantee equal protection of the laws and this means
that no persons or class of person, whether rich or poor and
regardless of his religious belief and politica! persuasion, shall be
denied the same protection of the laws which is enjoyed by other
persons or other classes of persons in the same place and in like

35
36 INTRODUCTION TO LAW
circumstances. Special favor or privilege for any individuai or class
is pr()hibited. (Sec. l, Art. III, 1987 Constitution)
Under the New Civil Code, a person may be a natura! or a
juridical person. A natura! person refers to a human being and a
juridical person refers to any of the following:
l. The state and its politica! subdivisions;
2. Other corporations, institutions and entities for public
interest or purposes, created by law;
3. Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (Art. 44, New Civil Code)
2. CAPACITY
In Roman Law, legai capacity is referred to as full proprietary
capacity. To bave this kind of capacity, a human being must be
free, a citizen and a sui juris. The capacity already acquired and
being enjoyed may be lost or diminished. The degree of diminution
may either be MAXIMA or MEDIA or MINIMA.
Under the New Civil Code, a person has full or compi~ civil
capacity if he has juridical capacity and capacity to actduridical
capacity is the fitness to be the subject of legai relations. Capacity
to act is the power to do acts with legai effect.
Artide 37 of the New Civil Code provides as follows:
"Juridical capacity, which is the fitness to be the subject
of legai relations, is inherent in every natural person and is
lost only through death. Capacity to act, which is the power to
do acts with legai effect is acquired and may be lost."
Capacity to act, unlike juridical capacity, may be
restricted or limited. The restrictions are those mentioned in
Artide 38 ofthe New Civil Code, to wit:
CODE:MISPC
M ...,- inority
I - nsanity
S - tate of being deaf-mute
PERSONS 37
P- rodigality
C - ivil Interdiction
Civil interdiction shall deprive the offender during the time
ofhis sentences ofthe rights ofparental authority, or guardianship,
either as to the person or property of any ward, or maritai authority,
of the right to manage his property and of the right to dispose of
such property by any act or any conveyance inter vivos. (Art. 34,
Revised Penal Code)
Artide 38 of the New Civil Code speaks of restrictions on
capacity to act, while Artide 39 speaks of circumstances which
modify or limit capacity to act. Said articles provide as follows:
'~t. 38. Minority, insanity or imbecility, the state ofbeing
a deaf-mute, prodigality and civil interdiction are mere
restrictions oÌl capacity to act, and do not ex:empt the ·
incapacitated person from certain obligations, as when the
latter arise from his acts or from property relations, such as
easement."
Art. 39. The following circumstances, among others, modi:(y
or limit capacity to act: age, insanity, imbecility, the state-of
l;irl:g deaf-mute, pe!!_~i_!iprodigality, !.~EJ:ily_r_~l~ti()I1_~! ali«:)J:lag~.
~sence.J.nsolv~~~~J;Dlstee~b.__ill,_ The consequences ofthese
circumstances are govemed in this Code, other codes, the Rules
of Court, and in speciallaws. Capacity to act is not limited on
account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is
qualified for ali acts of civil life, except in cases specified by
law."
3. QUESTION - WHEN DOES THE PERSONALITY OF A NATU-
RAL PERSON BEGIN?
ANSWER - Personality of a natural person begins at
conception (not at birth) provided that birth should occur later. This
is on the basis of Artide 40 of the New Civil Code which provides
as follows:
''Art. 40. Birth determines personality; but the conceived
child shall be considered horn for all purposes that are
favorable to it, provided, it be horn later with the conditions
specified in the following artide."
38 INTRODUCTION TO LAW

4. QUESTION - WHEN DOES THE PERSONALITY OF A

PRIVATE CORPORATION (PRIVATE JURIDICAL PERSON)
BEGIN?
ANSWER - It begins from the moment a certificate of Chapter VI
incorporation is granted to it by the Securities and Exchange l

Commission. From this moment, it has a personality separate and CONCEPT ANO NATURE OF MARRIAGE
distinct from its stockholders.

IMPORTANT TOPICS IN THIS CHAPTER:

5. QUESTION - WHEN IS A FETUS CONSIDERED BORN?
l. Concept
ANSWER- Article 41 answers this question. It says: "For
civil purposes, the fetus is considered horn if it is alive a t the time 2. Definition of marriage
it is completely delivered from the mother's womb. However, if the 3. Requisites of a valid marriage
fetus had an intra-uterine life of less than seven months, it is not
deemed horn if i t dies within twenty-four hours after its complete 4. Essential requisites
delivery from the maternal womb." 5. Effect of absence of essential requisites
Under Articles 40 and 41 therefore, a conceived child can be a 6. Effect of absence of formai requisites
recipient of a donation provided it is favorable to him. This means 7. Effect of defects in any of the essential requisites
that if the donation is burdensome to the conceived child, the
donation is not considered valid. 8. Effect of irregularity in the formai requisites
NOTE: 9. Requirements if any or both of the contracting parties
are between 18 and 21 years old and if any or both are
(l) If the fetus had an intra-uterine life of less than seven not emancipated by marriage
months, the child must have lived within twenty-four
10. Requirement if any of the contracting parties is between
hours after its complete delivery from its maternal womb. 21 and 25 years old
(Last sentence, Article 41)
11. Effect ifmarriage is celebrated within the three (3) month
(2) If the fetus had an intra-uterine life of at least seven - · period on the basis of a marriage license issued in
months, it is considered horn if it is alive after its violation of the said period
complete delivery from the mother's womb.
12. Authority of the solemnizing officer
13. Marriage license
14. Formalities of marriage
15. Distinctions between a void and voidable marriage
16. What marriages are void from the beginning?
17. What are the other void marriages?
18. Is there a need to file an action for declaration of nullity
of the said marriage?

39
40 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 41

19. Is there a prescriptive period within which said action 39. Parental authority is exercised by the parent designated
shall be filed? by the court (Art. 213, FC) "
20. Voidable marriage and grounds for annulment 40. Effect of reconciliation of the parties (Arts. 65 and 66,
21. Essential requisites: (l) Legai capacity and (2) Consent FC)
l
freely given 41. In case of breach of mutuai obligation or mutuai help
22. What constitutes fraud as a ground for annulment of and support
marriage? 42. In case of breach oLnutual obligation to observe respect
23. Effects of annulment of voidable marriage and fidelity
24. Status of children born-out of marriage ab initio 43. As regards the obligation of the spouse to live together
25. Status of children horn out of voidable marriages 44. Absolute divorce
26. Restrictions and precautions to be observed by the court 45. Conjugal partnership of gaini
in issuing the decree of annulment
46. Definition of paraphernal pr<Ìperty
27. Legai separation
47. What are the duties ofhusband and wife?
(a) Introduction
48. Scope of duty to live together
28. Grounds for legai separation
49. Mutuai respect and fidelity
29. Within what time should an action for legai separation
be filed? 50. Mutuai help and support
30. Evidence rt)quired as basis for judgment in action for 51. Husband's right to fix residence
legai separation
52. Can the wife acquire any property by gratuitous title?
31. What is adultery?
53. What is a marriage settlement?
32. What is concubinage?
54. Who are the parties to a marriage settlement?
33. Requisites for legai separation
55. · Systems that may be adopted by the parties to govern
(a) Time constraint
their property relations
(b) Cooling-off period
(a) Absolute community
(c) Reconciliation
(b) Relative community of gains (conjugal partnership)
(d) No legai separation on the basis of stipulation of
facts (c) Absolute separation
34. Effects of legai separation (d) Dotal system
35. Effects after filing of the petition (Art. 61, FC) 56. What systems govern?
36. Effects during pendency of legai separation (Art. 49, FC) 57. In the absence of marriage settlement, or when the
37. Effects of the decree of legai séparation (Art. 63, FC) agreed regime is void, what governs the property
relations between husband and wife?
38. Effects during the proceeding for legai separation or for
annulment of marriage 58. Concept of donation propter nuptias
42 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 43

59. Requisites of donation propter nuptias incidents are governed by law

and not subject to stipulation,
60. Distinction between donation propter nuptias and except that maÌTiage settlements
ordinary donation may fix the property relations
61. Propter nuptias during the marpage within the
limits provided by this Code.
62. Ordinary donation (52a)
63. Rights and obligations between husband and wife
64. To live together REQUISITES OF A VALlO MARRIAGE
65. Wife may establish a separate domicile Article 53, New Civil Code Articles 2 and 3, New
66. Other consequences of marriage Family Code
Art. 53. No marriage shall Art. 2. No marriage shall be
DISCUSSION be solemnized unless ali these valid, unless these essential
requisites are complied with: requisites are present:

CONCEPT l. Legai capacity of the l. Legai capacity of the

contracting parties; contracting parties who must be
The concept ofmarriage both in Roman Law and in the New , a male and a female; and
Civil Code are fundamentally the same. It is regarded as a 2. Their consent, freely
given; 2. Consent freely given in
permanent union of a man and a woman. It is only in that sense
. the presence of the solemnizing
that the concept is similar for while the Romans regard marriage 3. Authonty of the per- officer. (52a)
as a union of a man and a woman in a lifelong consortium, the son performing the marriage;
New Civil Code carne out with a more strict and conservative and Art. 3. The formai requisites
concept and definition ofmarriage. Stilllater, the New Family Code of marriage are:
4. A marriage license,
amended this definition. except in a marriage of excep- l. Authority ofthe solem-
tional character. (Sec. la, Art. nizing officer;
DEFINITION OF MARRIAGE 3613) 2. A valid marriage
license except in the cases pro-
vided for in Chapter 2 ofthis Title;
Article 52, NewCivil Code Article l, New Family Code an d
Marriage is not a mere Marriage is a special con- 3. A marriage ceremony
contract but an inviolable social tract, of permanent union, bet- which takes piace with the ap-
institution. Its nature, conse- ween a man and a woman pearance of the contracting par-
quences and incidents are go- entered into in accordance with ties before the solemnizing officer
verned by law and not subject to law for the establishment of and their personal declaration
stipulation, except that the conjugal and family life. It is the that they take each other as
marriage settlements may, to a foundation of the family and an husband and wife in the presence
certain extent, fix the property inviolable social institution of not less than two witnesses of
relations during the marriage. (n) whose nature, consequence, and legai age. (53a, 55a)
44 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 45

Hence, unlike an ordinary contract, the parties, both under
the New Civil Code and the Family Code, cannot just terminate
their marriage as they wish, for the consequences and incidents of
marriage are governed by law. Notaries Public who draw or execute
documents destroying the inviolability of marriage are subject to
disciplinary action.
marriage. This means that both of them must a t least be 18 years
of ag~, and that they are not legally prohibited from marrying.
(2) Both of them must give consent to the marriage. lt is
their consent, not the consent of the parents, that is referred to in
Article 2(1). '

UNDER ARTICLES 2 ANO 3 OF THE NEW FAMILY CODE FORMAL REQUISITES

ABSENCE OF LEGAL AUTHORITY of the solemnizing officer to

ESSENTIAL REQUISITES solemnize marriage
"Art. 2. No marriage shall be valid, unless these essential
requisites are present: ABSENCE OF MARRIAGE LICENSE

(l) Legal capacity of the contracting parties who must
be a male and a female;
(2) Consent freely given in the presence of the solem-
nizing officer." (Underscoring supplied)
Renders the marriage void except when the marriage is
contracted with either or both parties believing in good faith at
the time of the marriage that the solemnizing officer had the legai
authority to do so.

RENDERS THE MARRIAGE VOlO

FORMAL REQUISITES
A marriage ceremony must publicly take piace under said
"Art. 3. The forma! requisites of marriage are: conditions but the marriage ceremony may be solemnized elsewhere
(l) Authority of the solemnizing officer; in the following cases:

(2) A valid marriage license except in the cases provided l. In case of marriages contracted at the point of death
for in Chapter 2 of this Title; and (articulo mortis);

(3) A marriage ceremony which takes place with the 2. In case of marriages in remote places; or
appearance of the contracting parties before the solemnizing 3. In case both parties request the solemnizing officer in
officer and their personal declaration that they take each other writing to that effect. (Article 8, Family Code)
as husband and wife in the presence of not less than two
witnesses of legal age." (53a, 55a) (Underscoring supplied)
EFFECTS OF THE FOLLOWING:
ESSENTIAL REQUISITES l. Absence of any of essential or formai requisites;
The absence of any of the said essential requisites renders 2. Defects in any of the essential requisites; and
the contract of marriage void ab initio except as may be provided 3. Irregularity in the formai requisites.
in Section 35(2) of the Family Code.
Hence, it is required that:
(l) The contracting parties must be a man and a woman
who should have the legai capacity to enter into a contract of
46 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 47

The consent shall be manifested in writing by the interested

Absence of Any of Defects in Any Irregularity in the
party, who personally appears before the local civil registrar, or in
the Essential of the Essential Formai Requisites
or Formai Requisites the form of an affidavit made in the presence of two witnesses and
Requisites attested before any official authorized by law to administer oath.
(Article 14, Family Code)
It shall render It shall render It shall not affect
the marriage void ab the marriage void- the validity ofthe mar-
initio except as sta- able as provided in riage but the party or REQUIREMENT IF ANY OF THE CONTRACTING
ted in Artide 35(2). Artide 45. parties responsible for PARTIES IS BETWEEN 21 ANO 25 YEARS OLO
the irregularity shall be
civilly, criminally and The party concerned shall be obliged to ask parental advice.
administratively liable.
lf said advice is not obtained, or if such advice is not favorable,
Examples: Examples: Examples: or if the parent or guardian concerned refuses to give any advice,
no marriage license shall issue till after three (3) months following
l. Lack of legai l. Lack of parental l. Lack oflegal age of
the completion of publication of the application for marriage license.
capacity of ,the consent the witnesses.
(Article 15, Family Code)
contracting par-
ties.
2. Lack of consent ,2. Consent of a ,2. Presence of only EFFECT IF MARRIAGE IS CELEBRATEO WITHIN
of any of the par- party is vitiated. one witness. THE THREE (3) MONTHS PERIOO ON THE BASIS
ties to the mar- OF A MARRIAGE LICENSE ISSUEO IN VIOLATION
riage. OF THE SAIO PERIOO
3. The parties are 3. Failure to comply The marriage is valid but the parties responsible of the
not at least 18 with the procedura! irregularity shall be civilly, criminally and administratively liable.
years of age requirements in In other words, the same is treated merely as an irregularity.
(considered as Artide 12. (Article 4, Family Code)
lack of legai 4. Non-absence of the
capacity). 3-month period as AUTHORITY OF THE SOLEMNIZING OFFICER
provided in Artide
15. Marriages solemnized by any person not legally authorized to
5. Requirement if no- perform marriages are void unless such marriages were contracted
tice in Artide 17 is with either or both parties believing in good faith that the solem-
not complied with. nizing officer had the legai authority to do so. (Art. 35[2], Family
Code)
REQUIREMENTS IF ANY OR 80TH OF THE CONTRACTING
PARTIES ARE BETWEEN 18 ANO 21 YEARS OLO ANO IF NOTE:
ANY OR 80TH ARE NOT EMANCIPATEO BY MARRIAGE
There is a need of consent to the marriage to be given, in the l. Under the Family Code, mayors are exduded from the
order mentioned, by the father, the mot:her, the surviving parent
;:!',,
'
list of those .w~o, are authorized to solemnize marriage.
~- Later, or under .the New Local Government Code, the
or guardian, or persons having legal charge of them.
'
48 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 49

mayors are now authorizedto solemnize marriage. (Sec.

444[XVIII], Local Government Code) Void marriage Voidable marriage
2. Any incumbent member of the judiciary may soleiUÀize
marriages within the court's jurisdiction. / l. It is void ab initio. lt is void Jl. The marriage is valid until it
from the very beginning and is annulled. ,
3. If the marriage is celebrated by a priest, imam or therefore no marriage legally
minister of a church, it is required that at least one of exists.
the contracting parties belongs to the solemnizing officer's
church or religious sect. (Art. 7[2], Family Code) 2. The marriage can never be 12. The marriage cari be ratified
ratìfied. by free cohabitation.
4. The marriage shall be solemnized publicly in the
3. No conjugal partnership is 13. There is conjugal partner-
chambers of the judge or in open court, in the church,
created. ship unless the marriage
chapel or tempie, or in the office of the consul-general,
settlements provided other-
EXCEPT in cases of marriages in articulo mortis, or wise .
.where both of the parties request the solemnizing officer
in writing in which case the marriage may be solemnized 4. There is no need for ajudicial 4. A judicial decision is needed
at a house or place designated by them in a sworn dedaration that the marriage to annui the marriage.
statement to that effect. (Art. 8, Family Code) is void.
5. The validity of the marriage 5. The validity of the marriage
MARRIAGE LICENSE may be attacked even after may not be attacked after one
the death of one party. party dies.
Without a marriage license, the marriage is void. But for as
long as there is a marriage license, it is immaterial if it is illegally 6. The status of children horn J6. The status of children horn
out of marriages that are out of voidable marriages:
or irregularly obtained. The marriage is valid just the same but
void ab initio - They are
the guilty parties shall be civilly, criminally, and administratively (l) Those conceived before a
illegitimate children except
liable. (Àrt. 4, third paragraph, Family Code) decree of annulment are
as provided under Artide 54
Legitimate Children;
of the Family Code which
FORMALITIES OF MARRIAGE provides as follows: (2) .Those conceived after a
No prescribed form or religious rite for the solemnization of decree of annulment are
Art. 54. Children con-
the marriage is required. It shall be necessary, however, for the Illegitimate children.
ceived or horn before the
contracting parties to appear personally before the solemnizing judginent of annulment or
officer and dedare in the presence of not less than two witnesses absolute nullity of the mar-
of legai age that they take each other as husband and wife. This riage under Artide 36 has
declaration shall be contained in the marriage certificate which become final and executory
shall be signed by the contracting parties and their witnesses and shall be considered legiti-
attested by the solemnizing officer. (Art. 6, Family Code) mate. Children conceived or
horn of the subsequent
marriage under Artide 53
VOlO ANO VOIOABLE MARRIAGE shall likewise be legiti-
The distinctions between a void and voidable marriage as to mated.
its concept and its effect are as follows:
50 INTRODUCTION TO LAW
QUESTION - WHAT MARRIAGES ARE VOID FROM
THE BEGINNING?
ANSWER - Under Article 35 of the Family Code, the
following marriages shall be void from the beginning:
(l) Those contracted by any party below eighteen years of
age even with the consent of parents or guardiana;
(2) Those solemnized by any person not legally authorized
to perform marriages unless such marriages were
contracted with either or both parties believing in good
faith that the solemnizing officer had the legai authority
to do so;
(3) Those solemnized without license, except those covered
by the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling
under Articl e 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
(6) Those subsequent marriages that are void under Artide
53.
QUESTION- WHAT ARE OTHER VOID MARRIAGES?
ANSWER - The following marriages are void:
l. Void because of psychological incapacity
"Art. 36. A marriage contracted by any party who,
at the time of the celebration, was psychologically
incapacitated to comply with the essential maritai
obligations of marriage, shalllikewise be void even if such
incapacit.y becomes manifest only after its solemnization."
Republic of the Philippines vs. Court of Appeals
198 SCRA268
FACTS:
On August 16, 1990, respondent Roridel O. Molina filed a
verified petition for declaration of annulment of her marriage to
Reynaldo Molina.
CONCEPT AND NATURE OF MARRIAGE 51
The petition alleged that Roridel and Reynaldo were married
on Aprii 14, 1985, at the San Agustin Church in Manila; that a
son, Andre O. Molina was horn; that after a year of marriage,
Reynaldo showed signa of "immaturity and irresponsibility" as a
husband and a father since he preferred to spend more time with
his peers and friends on whom he squandered his money; that he
depended on his parents for aid and assistance; and, was never
honest with his wife in regard to their finances, resulting in frequent
quarrels between them. That sometime in February 1986, Reynaldo
was relieved of his job in Manila, and since then, Roridel had been
the sole breadwinner ofthe family; that in October 1986, the couple
had a very intense quarrel, as a result of which their relationship
was estranged; that in March 1987, Roridel resigned from her job
in Manila and went to live with her parents in Baguio; that a few
weeks later, Reynaldo left Roridel and their child, and had since
then abandoned them; that Reynaldo had thus shown that he was
psychologically incapable of complying with essential maritai
obligations and was highly-immature and a habitually quarrelsome
individuai who thought of himself as a king to be served; and that
it would be to the couple's best interest to have their marriage
declared null and void in order to free them from what appeared to
be an incompatible marriage from the start.
Reynaldo admitted that he and Roridel could no longer live
together as husband and wife, but contended that their misunder-
standings and frequent quarrels were due to: (l) Roridel's strange
behavior of insisting on maintaining her group of friends even after
their marriage; (2) Roridel's refusal to perform some of her mari tal
duties such as cooking meals; (3) and Roridel's failure to run the
household and handle their finances.
During the pre-trial on October 17, 1990, the following were
stipulated:
l. That the parties herein were legally married on Aprii
14, 1985 at the Church of St. Augustine, Manila;
2. That out of their marriage, a child named Albert Andre
Olaviano Molina was horn on July 29, 1986;
3. That the parties are separated-in-fact for more than three
years;
4. That the petitioner is not asking support for her and her
child;
52 INTRODUCTION TO LAW
5. That the respondent is not asking for damages;
6. That the common child of the parties is in the custody of
the petitioner wife.
Evidence for herein respondent wife consisted of her own
testimony and that of her friends Rosemarie Ventura and Maria
Leonora Padilla as well as of Ruth G. Lalas, a social worker and of
Dr. Theresita Hidalgo-Sison, a psychiatrist of the Baguio Generai
Hospital and Medicai Center. She also submitted documents marked
as Exhibits "A" to "E-l." Reynaldo did not present any evidence as
he appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring
the marriage void. The appeal of petitioner was denied by the Court
of Appeals which affirmed in toto RTC's decision. Hence, the present
recourse.
ISSUE:
In his petition, the Solicitor Generai insists that "the Court of
Appeals made an erroneous and incorrect interpretation of the
phrase 'psychological incapacity' (as provided under Art. 36 of the
Family C'lde), and made an incorrect application thereofto the facts
ofthe case," adding that the appealed decision tended "to establish
in effect the most liberai divorce procedure in the world which is
anathema to our culture."
In denying the Solicitor General's appeal, the respondent Court
relied heavily on the trial court's findings "that the marriage
between the parties broke up because of their opposing and
conflicting personalities." Then it added its own opinion that "the
Civil Code Revision Committee (hereinafter referred to as the
Committee) intended to liberalize the application of our civil laws
on personal and family rights x x x." It concluded that:
"As a ground for annulment of marriage, we view
psychological incapacity as a broad range of mental and
behavioral conduct on the part of 'irreconcilable differences'
and 'conflicting personalities' in no wise constitutes psycho-
logical incapacity. It is not enough to prove that the parties
failed to meet their responsibilities and duties as married
persons; i t is essential that they must be shown to be incapable
of doing so, due to some psychological (not physical) illness."
CONCEP'r AND NATURE OF MARRIAGE 53
The evidence adduced by respondent merely showed that she
and her husband could not get along with each other. There had
been no showing of the gravity of the problem neither its judicial
antecedence nor its incurability. The expert testimony of Dr. Sison
showed no incurable psychiatric disorder but only incompatibility.
COURT
Q- Is it therefore the recommendation of the psychiatrist based
on your findings that it is better for the Court to annui (sic)
the marriage?
A- Yes, Your Honor.
Q- There is no hope for the marriage?
A- There is no hope, the man is also living with another woman.
Q- Is it also the stand of the psychiatrist that the parties are
psychologically unfit for each other but they are
psychologically fit with the other parties?
A- Yes, Your Honor.
Q- Neither are they psychologically unfit for their professions?
A- Yes, Your Honor.
In the case of Reynaldo, there is no showing that his alleged
personality traits were constitutive of psychological 1ncapacity
existing at the time ofmarriage celebration. While some effort was
made to prove that there was a failure to fulfill pre-nuptial
impressions of"thoughtfulness and gentleness." On Reynaldo's part
and of being "conservative, homely and intelligent" on the part of
Roridel, such failure of expectation is not indicative of antecedent
psychological incapacity. l{ at all, it merely shows love's temporary
blindness to the faults and blemishes of the beloved. (ltalics supplied)
2. Void because of incestuous relationship
Art. 37. Marriages between the following are incestuous and
void from the beginning, whether the relationship between
the parties be legitimate or illegitimate:
l. Between ascendants and descendants of any degree; and
2. Between brothers and sisters, whether of the full or half-
blood.
54 INTRODUCTION TO LAW
3. Void {or reasons of public policy
Art. 38. The following marriages shall be void from the
beginning for reasons of public policy:
l. Between collateral blood relatives, whether legitimate or
illegitimate, up to the fourth civil degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of adopting parent and the
adopted child;
6. Between the surviving spouse of the adopted child and
the adopter;
7. Between an adopted child and a legitimate child of the
adopter;
8. Between adopted children of the same adopter; and
9. Between parties where one, with the intention to marry
the other, killed that other person's spouse, or his or her
own spouse.
Question - Is there a need to file an action for declaration
of nullity of the said marriage?
Answer - Yes.
Question - Is there a prescriptive period within which said
action shall be filed?
Answer - The action or defense for the declaration of
absolute nùllity shall not prescribe.
Question - What is voidable marriage?
Answer - A voidable marriage is one which is valid until it
is annulled for any of the following cases, existing at the time of
the marriage:
l. No age requirement - That the party in whose behalf i t
is sought to have the marriage annulled was eighteen
years of age or over but below twenty-one (21) and the
marriage was solemnized without the consent of the
parents, guardian or person having substitute parental
CONCEPT AND NATURE OF MARRIAGE 55
authority over the party, in that order, unless after
attaining the age of twenty-one (21), such party freely
cohabited with the other and both lived together as
husband and wife.
2. Unsound mind - That either party' was of unsound
mind, unless such party after coming. to reason, freely
cohabited with the other as husband and wife.
3. Fraud - That the consent of either party was obtained
by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife.
4. Force, intimidation, undue influence - That the consent
of either party was obtained by force, intimidation or
undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the
other as husband and wife.
5. lmpotence- That either party was physically incapable
of consummating the marriage with the other, and such
incapacity continues and appears to be incurable.
6. Sexually-transmissible disease - That either party was
aftlicted with a sexually-transmissible disease found to
be serious and appears to be incurable.
ESSENTIAL REQUISITES: (l) LEGAL CAPACITY
AND (2) CONSENT FREELY GIVEN
LEGAL CAPACITY
This means that the parties must have the necessàry age and
that there must be no impediment caused by a prior existing
marriage or by a certain relationship, whether on account of affinity
or consanguinity.
RULES TO REMEMBER
.,.! (l) Marriageable age for either male or female shall be 18
years or upwards. (Art. 5, Family Code)
(2) If either or both of the contracting parties (not having
been emancipated by previous marriage) are between 18 and 21
56 INTRODUCTION TO LAW
years old, there must be consent to the marriage by the father,
mother, surviving par~nt or guardian or persons having legai charge
ofthem, in the order mentioned. (Art. 14, Family Code)
(3) Any contracting party between the age of21 and 25 shall
be obliged to ask their parents or guardian for advice, or if it be
unfavorable, the marriage license shall not be issued till after three
(3) months following the completion of the publication of the
application therefor. (Art. 15, Family Code)
(4) lf parental consent or parental advice is needed, there
mtist be a certificate that the contracting parties have undergone
marriage counselling. Failure to attach of marriage counselling shall
suspend the completion of the publication of the application. (Art.
16, Family Code)
(5) Marriage celebrated without the required license, except
when otherwise provided by law like marriage in articulo mortis,
shall be null and void. (Art. 35[3], Family Code)
o
(6) Marriage contracted'by any party below 18 years of age,
even with parental consent, shall be null and void. (Art. 35[1],
Family Code)
CONSENT FREELY GIVEN
The consent referred to in Artide 2 of the Family Code refers
to the consent of the contracting parties. If there is no consent or
when the parties do not have the intention to be bound, the
marriage is void. If there is consent, but there was error, fraud,
intimidation or force, the marriage is voidable. (Art. 45, Family
Code)
WHAT CONSTITUTES FRAUD AS A GROUND FOR
ANNULMENT OF MARRIAGE
Artide 46 of the Family Code answers this question. It pro-
vides as follows:
(l) Non-disclosure of a previous conviction by final judgment
of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than her husband;
CONCEPT AND NATURE OF MARRIAGE 57
(3) Concealment of sexually transmissible disease, regardless
of its nature, existing a t the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism a t the time of the marriage.
l
No other misrepresentation or deceits as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage.
EFFECTS OF ANNULMENT OF VOIDABLE MARRIAGE
It has four effects namely:
(l) WITH RESPECT TO EDUCATION AND SUPPORT -
The court shall provide for their education and support. (Art. 49,
Family Code)
(2) WITH RESPECT TO CUSTODY OF CHILDREN- The
custody of the children is provided for as the court deems best.
(Art. 49, Family Code)
(3) WITH RESPECT TO ATTORNEY'S FEES AND LITIGA-
TION EXPENSES- They are taken from the community property,
if the action is successful. (Art. 90, NCC)
(4) WITH RESPECT TO THE GUILTY PARTY- Damages
are assessed against the guilty party in case of annulment due to:
(a) Lack of authority of the solemnizing officer con-
cealed from one party;
(b). Concealment of impotence, or of a prior marriage
stili in force;
(c) Concealment ofincestuous relationship or of quasi-
incestuous disqualification under Artide 82;
(d) Knowledge of insanity of one party. (Art. 91)
STATUS OF CHILDREN BORN-OUT OF MARRIAGES AB INITIO
They are illegitimate children except as provided under Artide
54 of the Family Code which provides as follows:
Art. 54. Children conceived or horn before the judgment
of annulment or absolute nullity of the marriage under Artide
36 has become final and executory shall be considered
58 INTRODUCTION TO LAW
legitimate. Children conceived or horn of the subsequent
marriage under Artide 53 shall likewise be legitimate.
STATUS OF CHILDREN BORN OUT OF VOIDABLE
MARRIAGES
It depends. Those conceived BEFORE an appealable decree
of annulment are legitimate children. Those conceived AFTER such
decree of annulment are illegitimate children.
RESTRICTIONS ANO PRECAUTIONS TO BE
OBSERVED BY THE COURT IN ISSUING THE
DECREE OF ANNULMENT
Art. 48. In ali cases of annulment or declaration of absolute
nullity of marriage, the court shall order the prosecuting attorney
or fiscal assigned to it to appear on behalf of the state to take steps
to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or confession of
judgment.
LEGAL SEPARATION
INTRODUCTION
In the Philippines, we do not have absolute divorce (divorce a
vinculo matrimoni). We only have relative divorce or legai
separation (divorce a mensa et thoro). In absolute divorce, the
marriage is dissolved and the parties can remarry. In relative
divorce or legai separation, however, the marriage bond is not
dissolved and the parties are not entitled to remarry. In effect, the
parties are merely separated from bed and board ..
GROUNDS FOR LEGAL SEPARATION
There are ten (10) grounds for legai separation under Artide
55 of the Family Code, to wit:
(l) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child of the
petitioner;
CONCEPT AND NATURE OF MARRIAGE 59
(2) Physical violence or moral pressure to compel the
petitioner to change religious or politica! affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in prostitu-
tion, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprison-
ment of more than six (6) years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality ofthe respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one (l) year.
For purposes of this Artide, the term "child" shall include a
child by nature or by adoption.
Under Artide 97 of the Civil Code, there are only two (2)
grounds for legai separation, namely:
(l) For adultery on the part of the wife and for
concubinage on the part of the husband as defined in the Penai
Code; or
(2) An attempt by one spouse against the life of the
other.
WITHIN WHAT TIME SHOULD AN ACTION
FOR LEGAL SEPARATION BE FILED?
Art. 57 of the Family Code provides that an action for legai
separation shall be filed within five years from the time of the
occurrence of the cause.
EVIDENCE REQUIRED AS BASIS FOR JUDGMENT
IN ACTION FOR LEGAL SEPARATION
Simple preponderance of evidence is required. No previous
60 INTRODUCTION TO LAW
criminal conviction is necessary. No decree oflegal separation shall
be based upon a stipulation of facts or a confession of judgment.
WHAT IS ADULTERY?
Adultery is a crime committed by any married woman who
shall have sexual intercourse with a man not her husband; and by
a man who has carnai knowledge of her, knowing her to be married,
even if the marriage be subsequently declared void. (Art. 333,
Revised Penal Code)
Note:
l. Article 333 of the Revised Penai Code specifies that the
crime is committed by a married woman. Therefore, if a
woman is single or not married, and she has sexual
intercourse with her two or more boyfriends, she cannot
be held liable for adultery.
2. Adultery may be proved by circumstantial evidence.
WHAT IS CONCUBINAGE?
Any husband who shall keep a mistress in the conjugal
dwelling or, shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit
with her in any other piace, shall be punished by prision correc-
cional in its minimum and maximum periods. (Art. 334, Revised
Penal Code)
REQUISITES FOR LEGAL SEPARATION
The requisites for legai separation are those provided in
Articles 57, 58, 59 and 60 of the Family Code:
First: Time Constraint
"Art. 57. An act for legai separation shall be filed within
five (5) years from the time of the occurrence of the cause."
Second: Cooling-Off Period
"Art. 58. An action for legai separation $hall in no case
be tried before six (6) months shall have elapsed since the
filing of the petition."
CONCEPT AND NATURE OF MARRIAGE 61
Third: Reconciliation
"Art. 59. No legai separation may be decreed unless the
court has taken steps toward the reconciliation of the spouses
and is fully satisfied, despite such efforts, that reconciliation
is highly improbable."
Fourth: No Legal Separation on the Basis
of Stipulation of Facts
"Art. 60. No decree oflegal separation shall be based upon
a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting
attorney or fiscal assigned · to i t to take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed."
EFFECTS OF LEGAL SEPARATION
The effects oflegal separation are those mentioned in Articles
61, 62, 63, 198 and 213 of the Family Code:
Art. 61 - states the effects after the petition for legai
separation is filed.
Art. 62 - states the effects during the pendency of legai
separation.
Art. 63 - states the effects of the decree of legai separation.
Art. 49 - (1st paragraph) states the effects of the pending
petition for legai separation.
Art. 198 - (2nd paragraph) states the effects of a final
judgment granting the petition for legal sepa-
ration.
l~~
Art. 213 - states the effects of separation with respect to
parental authority.
EFFECTS AFTER FILING OF THE PETITION
(ART. 61, FC)
l. Mter the filing of the petition for legai separation, the
spouses shall be entitled to live separately from each other.
62 INTRODUCTION TO LAW ··,
2. The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership property.
The administrator appointed by the coutt shall have the same powers
and. duties as those of a guardian under the Rules of Court.
EFFECTS DURING PENDENCY OF LEGAL
SEPARATION (ART. 49, FC}
During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses,
the Court shall provide for the support' of the spouses and the
custody and support of their coinmon children. The Court shall give
paramount consideration to the mora! and materia! welfare of said
children and their choice of the parent with whom they wish to
remain as provided for in Title IX. It shall also provide for
appropriate visitation rights of the other parent.
EFFECTS OF THE DECREE OF LEGAL
SEPARATION (ART. 63, FC}
l. The spouses shall be entitled to live separately from each
other, but the maniage bonds shall not be severed.
2. The absolute community or the cònjugal partnership shall
be dissolved and liquidated but. the offending spouse shall have no
right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2).
3. The custody of the minor children shall be awarded to
the innocent spouse, subject to the provisions of Article 213 ofthis
Code.
4. The offended spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession. Moreover,
provision in favor of the offending spouse made in the will of the
innocent spouse shall be revoked by operation of law.
EFFECTS DURING THE PROCEEDING FOR LEGAL
SEPARATION OR OF ANNULMENT OF MARRIAGE
During the proceedings for legai separation or for annulment
of marriage, and for declaration of nullity of marriage, the spouses
CONCEPT AND NATURE OF MARRIAGE 63
and their children shall be supported from the properties of the
absolutP. community or the conjugal partnership. (Art. 198, 1st
paragraph)
Mter the fina! judgment granting the petition, the obligation
of mutuai support between the spouses ceases. Hbwever, in case of
legai separation, the court may order that the g\Iilty spouse shall
give support to the innocent one, specifying the terms of such order.
(Art. 198, 2nd paragraph)
PARENTAL AUTHORITY 15 EXERCISED BY
THE PARENT DESIGNATED BY THE COURT
(ART. 213, FC}
In case of separation of the parents, parental authority shall
be exercised by the parent designated by the Court. The Court shall
take into account all relevant considerations, especially the choice
of the child over seven years of age, unless the parent chosen, is
unfit. (Art. 213, 1st paragraph)
EFFECT OF RECONCILIATION OF THE PARTIES
(ARTS. 65 ANO 66, FC)
If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed with
the court in the same proceeding for legai separation. (Art. 65)
The reconciliation referred to in the preceding Article shall
have the following consequences:
(l) - The legai separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
(2) The final decree of legai separation shall be set aside,
but the separation of property and any forfeiture of the
share of the guilty spouse already effected shall subsist,
unless the spouses agree to revive their former property
regime.
The court's order containing the foregoing shall be recorded
in the proper civil registries.
IN CASE OF BREACH OF MUTUAL OBLIGATION
OR MUTUAL HELP ANO SUPPORT
(l) An action for support may be filed.
64 INTRODUCTION TO LAW
(2) An action for receivership, separation of property or for
administration by the wife may be filed in case of
desertion by the husband.
(3) Judicial admonition and other measures may be taken
by the court. However, the court cannot compel cohabi-
tation.
IN CASE OF BREACH OF MUTUAL OBLIGATION
TO OBSERVE RESPECT ANO FIDELITY
(l) A petition for legai separation may be filed.
(2) The convicted spouse shall forfeit his or her right to
support.
(3) The guilty spouse shall be disinherited.
(4) The guilty spouse shall not be capable to succeed.
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to the family,
the aggrieved spouse may petition the court for receivership,
for judicial separation of property, or for authority to be the
sole administrator of the conjugal partnership property, subject
to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to maritai, parental, or property relations.
A spouse is deemed to have abandoned the other when
he or she left the conjugal dwelling without intention of
returning. The spouse. who has left the conjugal dwelling for
a period of three months or has failed within the same period
to give any information as to his or her whereabouts shall be
prima facie presumed to have no intention of returning to the
conjugal dwelling.
AS REGARDS THE OBLIGATION OF THE SPOUSE
TO LIVE TOGETHER
(l) The spouse who leaves the conjugal home or refuses to
live therein, without just cause, shall not have the right
to be supported. (Art. 127[1})
(2) When the consent of one spouse to any transaction of
CONCEPT AND NATURE OF MARRIAGE 65
the other is required·by.law, judicial authorization.shall
be obtained in a summary proceeding. (Art. 127[2])
(3) In the absence of sufficient conjugal partnership property,
the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present
shall, upon petition in a summary: proceeding, be given
judicial authority to administer or encumber any specific
separate property of the other spouse and use the fruits
or proceeds thereof to satisfY the latter's share.
ABSOLUTE DIVORCE
Question - Do we have absolute divorce in the Philippines?
Answer- We do not have absolute divorce in the Philippines.
Muslim divorce was previously declared valid and recognized under
Republic Act No. 394 but this law was valid only for a period of 20
years from June 18, 1949.
Therefore, actions for absolute divorce between Filipinos or
between foreigners or between a Filipino and a foreigner will not
prosper in Philippine courts. If said action is brought in a foreign
court by a foreigner and the same is granted, the foreign court has
jurisdiction to grant the absolute divorce and provided further that
said divorce is recognized as valid according to the nationallaw of
the parties. If said action is brought in a foreign country by a
Fili pino citizen, the same even if granted, will not be recognized in
the Philippines.
CONJUGAL PARTNERSHIP OF GAINS
Article 106 of the Family Code defines conjugal partnership
of gains as follows:
Under the regime of conjugàl partnership of gains,
the husband and wife piace in a common fund the proceeds,
products, fruits and income from their separate properties
and those acquired by either or both spouses through their
efforts or by chance, and, upon dissolution ofthe marriage
or of the partnership, the net gains or benefits obtained
by either or both spouses shall be divided equally between
them, unless otherwise · agreed in the marriage settle-
ments.
 INTRODUCTION TO LAW ) CONCEPT AND NATURE OF MARRIAGE
66
OEFINITION OF PARAPHERNAL PROPERTY
Art. 109. The following shall be the exclusive property of each
spouse:
(l) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by
gratuitous title;
(3) That which is acquired by right ofredemption, by barter
or by exchange with property belonging to only one of
the spouses; and
(4) That which is purchased with exdusive money of the wife
or of the husband.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
ANDWIFE
QUESTION- WHAT ARE THE DUTIES OF BUSBAND
ANDWIFE?
ANSWER - They are obliged:
(l) To live together;
(2) To observe mutuai respect and fidelity; and
(3) To render mutuai help and support.
SCOPE OF OUTY TO LIVE TOGETHER
The husband and the wife have a right to live together and
this includes cohabitation and sexual intercourse. With the
enactment of Republic Act No. 8353 otherwise known as Anti-Rape
Law of 1997, a husband may be held liable for the rape ofhis wife.
However, the subsequent forgiveness by the wife shall extinguish
the criminalliability except when the marriage is void ab initio.
MUTUAL RESPECT ANO FIOELITY
Mutuai respect simply means that each shall respect the other.
They can disagree or reprimand each other but it is unlawful for
them to inflict force or physical harm, EXCEPT when either of them
67
SURPRISES the other in the act of committing sexual intercourse
with another person. Even under this situation, Artide 24 7 of the
Revised Penai Code imposes a penalty of destierro to the guilty
spouse.
'
Infidelity, on the other hand, is a ground for legai separation
or disinheritance under Articles 55(8) and 63(4) ofthe Family Code.
MUTUAL HELP ANO SUPPORT
Husband do not marry his wife to make the latter his slave
and vice-versa. They should help and support each other within
their available resources and to see to it that they assist each other
in the rearing of their children for civie efficiency and development
of moral character.
Under Artide 11 of the Revised Penai Code, defense of the
spouse is a justifying circumstance provided the other requisites
therein are present.
HUSBANO'S RIGHT TO FIX RESIOENCE
As a rule, the husband shall fix the residence of the family.
However, the wife may establish a separate residence, IF:
l. The husband maltreats her or grossly insults her;
2. The husband continuously refuses to support her;
3. . The husband is immoderate or barbarie in his demands
for sexual intercourse;
4. The wife is virtually driven out of the conjugal home by
the husband; and
5. The husband continually indulges in illicit relations with
another woman.
CAN THE WIFE ACQUIRE ANY PROPERTY BY
GRATUITOUS TITLE?
The wife cannot, without the husband's consent, acquire any
property by gratuitous title EXCEPT from her ascendants,
descendants, parent-in-law and collateral relative within the fourth
d egre e.
68 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 69

WHAT IS A MARRIAGE SETTLEMENT? (3) Family expenses are contributed by each spouse accord-
ing to stipulation or in proportion to their respective
It is an ante-nuptial contract entered into by the prospective income.
spouses for the purpose of fixing the conditions with respect to their
present and future property. D. Dotai System
(l) Property of the wife is managed by the husband during
WHO ARE THE PARTIES TO A MARRIAGE the marriage.
SETTLEMENT? (2) Fruits go to the husband.
It depends. Ifthe future spouses are of age, they are the parties (3) Expenses are bome by the husband.
to the marriage settlement. If one or both of the spouses are minors (4) Upon cessation of common life, the property is returned.
(under 21), the parties are:
(l) The future spouses even if they are minors; WHAT SYSTEMS GOVERN?
(2) The parent or guardian; and Art. 74. The property relations between husband and wife
shall be governed in the following order:
(3) The family council if there is no guardian or parent.
(l) By marriage settlements executed before the mar-
riage;
SYSTEMS THAT MAY BE ADOPTED BY THE
PARTIES TO GOVERN THEIR PROPERTY (2) By the provisions of this Code; and
RELATIONS (3) By the local customs.
A. Absolute Community
IN THE ABSENCE OF MARRIAGE SETTLEMENT,
(l) Present and future property (with certain exceptions) is OR WHEN THE AGREED REGIME IS VOID, WHAT
to be owned in common. GOVERNS THE PROPERTY RELATIONS BETWEEN
(2) Expenses are borne by the common property. HUSBAND ANO WIFE?

B. Relative Community of Gains (Conjugal Partnership) The _system of absolute community of property as established
by the Family Code shall govern. (Art. 75, New Family Code)
(l) Present property continues to be owned by the respective
spouses; Art. 75. The future spouses may, in the marriage
settlements, agree upon the regime of absolute community,
(2) Future property is separate if acquired gratuitously, but conjugal partnership of gains, complete separation of property,
coinmon if acquired by onerous title at the community's or any other regime. In the absence of marriage settlement, or
expenses; and when the regime agreed upon is void, the system of absolute
(3) Fruits and earnings are common. community ofproperty as established in this Code shall govern.
Art. 76. In order that any modification in the marriage
C. Absolute Separation
settlements may be valid, it must be made before the
(l) Present and future property is owned by the holder or celebration of the marriage, subject to the provisions of Articles
acquirer. 66, 67, 128, 135 and 136.
(2) Fruits are separately owned by the owner of the produ- Art. 77. The marriage settlements and any modification
cing property. thereof shall be in writing, signed by the parties and executed
70 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 71

before the celebration of the marriage. They shall not prejudice (b) The marriage does not (b) Ingratitude;
third persons unless they are registered in the local civil take place;
registry where the marriage contract is recorded as well as in
(c) The marriage is annulled (c) Appearance of children.
the proper registries of property.
due to the bad faith of
the donee;
CONCEPT OF DONATION PROPTER NUPTIAS
(d) There is legal separation
Propter nuptias (donations by reason of marriage) are those due to the fault of the
which are made before its celebration, in consideration of the same donee;
and in favor of one or both of the future spouses.
(e) Lack ofrequired parental
consent to the marriage;
REQUISITES OF DONATION PROPTER NUPTIAS
. (f) Governed by Statute of
The donation must be made: Frauds.
(l) Before the marriage;
(2) In favor of either spouses or both; and
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
(3) In consideration (by reason) of the marriage. AND WIFE COMMON TO HUSBAND AND WIFE

DISTINCTION BETWEEN DONATION PROPTER Art. 69. - The husband and the wife shall fix the family
NUPTIAS AND ORDINARY DONATION domicile. In case of disagreement, the court shall
decide.

Propter Nuptias Ordinary Donation Art. 70. - The spouses are jointly responsible for the
support of the family. The expenses for such
l. Acceptance is not required. l. Acceptance is required. support and other conjugal obligations shall be
paid from the community property and, in the
2. The donor can give not more 2. The donor can give not more
absence thereof, from the income or fruits of their
than 1/5 (Art. 84) made by than what he can give by
future spouse. will. separate properties. In case of insufficiency or
absence of said income or fruits, such obligations
3. It can include future prop-,3. It cannot include future shall be satisfied from their separate properties.
erty. (Art. 84) property.
Art. 72. - When one of the spouses neglects his or her duties
4. The donor must free the 4. The donor need not free the to the conjugal union or commits acts which tend
property except from servi- property unless the donation to bring danger, dishonor or injury to the other
tudes unless otherwise sti- is onerous. or to the family, the aggrieved party may apply
pulated. to the court for relief.
5. The donation may be revoked ,5. The donation may be revoked Art. 73. - Either spouse may exercise any legitimate
for the following reasons: for the following reasons: profession, occupation, business or activity
(a) The condition is not (a) Breach of conditions; without the consent of the other. The latter may
fulfilled; object only on valid, serious, and moral grounds.
72 INTRODUCTION TO LAW CONCEPT AND NATURE OF MARRIAGE 73

In case of disagreement, the court shall decide whether or (7) If she is virtually driven out of their home by her husband
not: and she is threatened with violence if she should return. (Garcia
(l) The objection is proper; and vs. Santiago and Santiago, 53 Phil. 952)

(2) Benefit has accrued to the family prior to the objection

or thereafter. If the benefit has accrued prior to the OTHER CONSEQUENCES OF MARRIAGE
objection, the resulting obligation shall be enforced (l) A husband and wife can chastise or reprimand each other
against the separate property of the spouse who has not but may not inflict force except when either catches the other in
obtained consent. the act of sexual intercourse with another. (Art. 247, Revised Penal
Code)
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith. (2) Marriage emancipates a person from parental authority
as to person. ·
Art. 68. - The husband and wife are obliged to live together,
observe mutuai love, respect and fidelity, and (3) A husband cannot be examined for or against his wife
render mutuai help and support. without her consent; nor a wife for or against her husband without
his consent, except in a civil case by one against the other, or in a
criminal case for a crime committed by and against the other.
TO LIVE TOGETHER (Section 20[b], Rule 130)
This is both a duty and a right. This includes cohabitation or
(4) The husband or the wife during the marriage or after-
consortium and sexual intercourse. If there is, however, a legal
wards, cannot be examined without the consent of the other as to
separation, there is no more duty to have sexual intercourse.
any communication received in confidence by one from the other
during the marriage. (Section 21[a], Rule 130)
WIFE MAY ESTABLISH A SEPARATE DOMICILE
(5) A Filipino woman who marries an alien acquires his
The wife may establish a separate domicile in the following nationality if so provided by her husband's laws. (Commonwealth
cases: Act No. 63)
(l) If the husband maltreats her. (Arroyo vs. Vasquez de (6) A foreign woman who marries a Filipino may become a
Arroyo, 42 Phil. 54) . Filipino citizen provided she herself may be lawfully naturalized.
(Section 15, Commonwealth Act No. 473) ·
(2) If the husband grossly insults her. (Talanan vs. Willis,
[CA] 35 O.G. 1369)
(3) Ifthe husband is immoderate or barbarie in his demands
for sexual intercourse. (Goitia vs. Campos-Rueda, 35 Phil. 252)
(4) If the husband continuously indulges in illicit relations
with another even if the concubine or concubines are not brought
into the maritai abode. (Dadivas vs. Villanueva, 54 Phil. 92)
(5) If the husband refuses to support the family or conti-
nuously gambl~s. (Panuncio vs. Sula, [CA] 34 O.G. 6122)
(6) If the husband insists on living with his own parents.
(Del Rosario vs. Del Rosario, CA 4600 O.G. 6122)
 THE FAMILY 75

The family home may be created judicially or extra-judicially.

If thus created, it is exempt from: (l) execution; (2) forced sale;
and (3) attachment.
Chapter VII
4. ADVANTAGES OF A FAMILY HOME
lt is exempt from execution, forced sale, or attachment. lt is
THE FAMILY liable only:
(a) For non-payment of taxes;
(b) For debts incurred prior to the constitution ofthe family
IMPORTANT TOPICS IN THIS CHAPTER: home;
l. Family defined
(c) For debts secured by mortgage on the premises before or
2. Family suits are discouraged after such constitution; and
3. Family home defined (d) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished
4. Advantages of a family home
material for the construction of the building. (Art. 155, FC)

DISCUSSION

1. FAMILY DEFINED
The family is a basic social institution which public policy
cherishes and protects. No custom, practice or agreement which is
destructive of the family shall be recognized or given effect.

2. FAMILY SUITS ARE DISCOURAGED

No suit between of the same family shall prosper unless it
should appear from the verified complaint or petition that eamest
efforts toward a compromise have been made, but that the same
have failed. If it is shown that no such efforts were in fact made,
the case must be dismissed. (Art. 151, FC)

3. FAMILY HOME DEFINED

Art. 152 of the Family Code defines family home as: "The
dwelling house where a person and his family reside, and the land
on which it is situated."

74
• • J ACC. NO. b' • , _,_ f~H R tA\fJ liPRAR'I
 PROPERTY 77

the possession of man. Things are those same objects before their
appropriation by man. The stars and the planets are included in
the concept of "things" but since they cannot be appropriated, they
Chapter VIli cannot be considered property.

'
PROPERTY 2. PRINCIPAL CLASSIFICATION OF PROPERTY
Under the New Civil Code, property may either be: (l) Immo-
IMPORTANT TOPICS IN THIS CHAPTER: vable or real property; or (2) Movable or personal property.
l. . Property defined
2. Principal classification of property 3. CLASSIFICATION OF REAL OR IMMOVABLE PROPERTIES
3. Classification of real or immovable properties
(a) by nature CODE: NIDA
(b) by incorporation N-ature
(c) by destination or purpose I- ncorporation
(d) by analogy
D - estination
4. Movable or personal properties
A- nalogy
5. Definition and concept of ownership
6. Extent of ownership
l. Real property by nature - Those which by their very
7. Ownership of a hidden treasure nature are immovable, i.e., (a) land, buildings, roads and
8. Definition of hidden treasure construction of all kinds adhered to the soil; and (b)
9. Modes of acquiring ownership :'~
mines, quarries, and slag dumps, while the matter thereof
forms part of the bed, and waters either running or
10. Attributes of ownership
_stagnant.
11. Important articles of the New Civil Code on ownership
and possession · 2. Real property by incorporation- Those which are
attached to an immovable in. a fixed manner (i.e.,
12. Effects of possession building):

DISCUSSION .~
(a) Buildings, roads and construction of all kinds
adhered to the soil;

1. PROPERTY DEFINED (b) Trees, plants, and growing fruits, while they are
attached to the land or form an integrai part of an
Things which are or may be the object of appropriation are immovable;
considered as property. The word "thing'' is broader than the concept
of property. More specifically, property refers to things which are (c) Everything attached to an immovable in fixed
··susceptible to appropriation and alreal,iy possessed and found in manner, in such a way that it cannot be separated
\
•• c;;'_,.,,.~·.•.••.• ~ • therefrom without breaking the material or
i''IJt
,~.w~:,.,.,.:,;...,;.,

~:
. ·-:
: :~( i :: 1. ·. .· .·, .. ·.' t",H
:· r ., deterioration of the object;
l~-~"·:·-·--~.,~. ~-~~"~-~!'~- ' ~-~~~ '
~ ' ~- "' 1: .... \ 76 ~. t.::.!
1
78 INTRODUCTION TO LAW PROPERTY 79

(d) Statues, reliefs, paintings, or other objects for use NOTE:

or ornamentation, placed in buildings or on lands l. A building whether built on a rented land or not and
by the owner of the immovable in such a manner whether it was built by the owner of the land or not is
that it reveals the intention to attach them perma- Real property.
nently to the tenements.
2. A house is an immovable property but once it is demo-
3. Real property by destination or purpose - Those lished, it ceases to be an Immovable property.
attached to an immovabie in such a manner that they 3. A barong-barong cannot be considered immovabie.
constitute an ideai identity (i.e., machinery used in a
cement plant):
4. MOVABLE OR PERSONAL PROPERTIES
(a) Statues, reliefs, paintings, or other objects for use
or ornamentation, piaced in buiidings or on Iands The following are deemed to be personal properties:
by the owner of the immovable in such a manner l. Those movables susceptible of appropriation which are
that it reveais the intention to attach them perma- not inciuded in the preceding article (e.g., pencii, watch);
nently to the tenements;
2. Real property which by any special provision of Iaw is
(b) Machinery, receptacies, instruments or implements considered as personal property (e.g., growing crops);
intended by the owner of the tenement for an
3. Forces of nature which are brought under controi by
industry or works which may be carried on in a science (e.g., electricity);
building or on a piece of land, and which tend
directly to meet the need of the said industry or 4. In generai, all things which can be transported from piace
works; to place without impairment of the real property to which
they are fixed (e.g., picture frame hanging on the wall).
(c) Animai houses, pigeon houses, beehives, fish ponds
or breeding piaces of similar nature, in case their
owner has placed them or preserved them with the 5. DEFINITION ANO CONCEPT OF OWNERSHIP
intention to have them permanently attached to the Ownership is the right to enjoy and dispose of a thing, without
land, and forming a permanent part of it; the other limitations than those established by law. (Art. 428, New Civil
animals in these places are included; Code)
(d) Fertilizer actually used on a piece of land; Hence, the ownership is not absolute. It may be restricted by
the following limitations:
(e) Docks and structures which, through floating, are
intended by their nature and object to remain at a l. Limitations imposed by law:
fixed piace on a river, lake or coast. (a) Right of way;
4. Real property by analogy - This includes rights over (b) Easement of party wall; and
immovable property (e.g., servitudes and contracts for (c) Easement of waters.
public works):
2. Limitations imposed by the State:
(a) Contracts for public works, and servitudes and other
real rights over immovable property. (a) Power of eminent domain;
(b) Police power; an d
80 INTRODUCTION TO LAW
(c) Power of taxation.
3. Limitations imposed by the owner himself such as those
arising from a contract of mortgage, pledge or lease.
ILLUSTRATIONS:
l. De La Salle Alabang is established and situated inside
New Alabang Village. In going to and from said school,
parents and school children have to pass through the
subdivision road of the village. The subdivision developers
or the association therein can impose reasonable rules
and regulations for security reasons but it cannot
absolutely disallow school children living in adjacent
subdivisions to pass through the subdivision road going
to De La Salle College where they are enrolled and duly
admitted.
2. One can own a stereo and use it freely in his house but
it does not mean that he can use it in full volume at 2:00
a.m., to the detriment of his neighbors who are already
sleeping. This is based on the latin maxim Sic Utere Tuo
Ut Alienum Non Laedas. This maxim is expressed in a
similar vein in Article 431 of the New Civil Code which
says: "The owner of a thing cannot make use thereof in
such a manner as to injure the rights of third person."
3. Maintaining Ihaw-lhaw establishments inside a subdi-
vision area can be abated.
4. The government has the power to impose taxes on the
earnings of its citizens to support the costs of operation
of government. lt has also the power to expropriate
private properties for public use and provided that just
compensation is paid.
5. X mortgaged his house and lotto Y bank. He is bound to
observe the conditions of the Contract of Real Estate
Mortgage.
6. EXTENT OF OWNERSHIP
Extent of one's ownership which a person has over a parcel of
land is defined in Article 437 which provides as follows:
PROPERTY 81
"Art. 437. The owner of a parcel of land is the owner of
its surface and of everything under it, and he can construct
thereon any works or make any plantations and excavations
which he may deem proper, without detriment to servitudes
and subject to speciallaws and ordinances. H~ cannot complain
of the reasonable requirements of aerial navigation."
As a rule therefore, the owner of a parcel of land is the owner
o( its surface and of everything under it subject only to the following
limitations: (a) servitudes; (b) special laws; (c) ordinances; (d)
reasonable requirements of aerial navigation; and (e) the Latin
maxim of Sic Utere Tuo Ut Alienum Non Laedas. ,
7. OWNERSHIP OF A HIDDEN TREASURE
Article 438 of the New Civil Cqde defines who is the owner of
a hidden treasure. lt says:
"Art. 438. Hidden treasure belongs to the owner of the
land, building, or other property on which it is found."
Nevertheless, when the discovery is made on the property
of another, or of the State or any of its subdivisions, and by
chance, one~half thereof shall be allowed to the finder. If the
finder is a trespasser, he shall not be entitled to any share of
the treasure.
If the things found be of interest to science or the arts,
the State may acquire them a t their just price, which shall be.
divided in conformity with the rule stated."
Simply stated, the law states three (3) instances or situations:
l. The hidden treasure may be found in one's own property;
2. The hidden treasure may be found on a building;
3. The hidden treasure may be found on the property of
another.
If one finds a hidden treasure in his own land or building, he
owns it exclusively. lf the finder is married, the treasure belongs
to the conjugal property.
If the hidden treasure is found on the land or building of
another by chance, the finder owns one-half of the hidden treasure
and the other half of the hidden treasure belongs to the owner of
the land or building.
82 INTRODUCTION TO LAW PROPERTY 83

If the finder is a trespasser, he is not entitled to any share. 2a.l. Alluvion legai, scientific or other
However, if the things found be of interest to science or the arts, works;
the State may acquire them a t their just price which shall be divided 2a.2. Avulsion
according to the provisions of Art. 438. 2a.3. Insula Nata (b) lnvention or discovery;
an d
2a.4. Alveus Derelictus
8. DEFINITION OF HIDDEN TREASURE (c) Letter '
2b. Artificial Accessio conti-
''Art. 439. By treasure is understood, for legai purposes, nua
any hidden and unknown deposit of money, jewelry, or other
precious objects, the lawful ownership of which does not 2b.l. On real property:
appear." 2b.l.l Inaedifica-
tio
9. MODES OF ACQUIRING OWNERSHIP 2b.1.2 Satio lm-
plantatio
The modes of acquisition stated in our New Civil Code are 2b.2 On perso-
Roman in origin. All those mentioned in Roman Law books as modes nal prop-
of acquisition, except mancipatio and addictio, are stili mentioned erty:
in the New Civil Code. This is shown in the comparative list below. 2b2.1 Commixtio
It will be noted that accession is not listed in the New Civil 2b2.2 Confusio
Code as a mode of acquiring ownership. In Roman Law, it is a 2b2.3 Adjudica-
specific mode of acquiring ownership. If anything therefore is tio
acquired by or through accession, it is, on the basis of the New 2b2.4 Specificatio
Civil Code, to be treated as acquisition in accordance with law. 3. Prescriptio

DERIVATIVE MODES
ROMANLAW NEW CIVIL CODE
l. Succession
Originai Modes Originai Modes
2. Donation
l. Occupation l. Occupation
3. Prescription
(a) Animals ferae naturae (a) Wild animals or those
acquired by hunting or 4. Law
fishing 5. Delivery (Traditio in Roman
(b) N ew things (b) Hidden treasure (The- Law)
saurus in Roman Law) NOTES:
(c) Res Hostis (c) Abandoned thing (Res Roman Law terms mentioned below have their counterparts
Derelicta in Roman Law) in the New Civil Code, thus:

2. Accessio 2. Intellectual creation Animals ferai naturae- Wild animals (Art. 713)
2a. N atural Accessio con- (a) Copyrights on any lite- Res Derelicta- Abandoned property (Art. 719, last paragraph)
1

tinua racy, dramatic, historical, 1

Thesaurus - Hidden Treasure (Art. 438)

84 INTRODUCTION TO LAW PROPERTY 85

Accessio- Accession (Art. 440) 4. Jus Disponendi - Right to dispose

l. Accessio continua - Accession by attachment or 5. Jus Vindicandi- Right to recover
incorporation
l. l Alluvion- Alluvion (Art. 457)
ILLUSTRATION:
1.2 Avulsion - Avulsion (Art. 459)
If X owns a house and lot, he has the right to live there
1.3 Insula Nata - Formation of Islands I (Arts. 464- and use i t. If he wants, he can also sell, mortgage or lease it.
465) If he sells, he ceases to have contro!, ownership and possession
1.4 Alveus Derelictus- Change of course ofrivers (Arts. of the same in favor of the buyer. If he leased the same for
462-463) one (l) year, he stili retains the ownership but not the
possession because his right is transferred to the lessee by
ARTIFICIAL virtue of the lease contract.

ON REAL PROPERTY: If the lessee fails or refuses to vacate the house and lot
after the expiration of the lease contract, the owner can sue
l. Inaedificatio- Building (Arts. 445 to 446) the lessee for unlawful detainer because while the possession
2. Satio lmplantatio - Sowing and Planting (Arts. 445 of the lessee is lawful in the beginning, it became unlawful
to 446) after he failed and refused to vacate upon demand and after
the expiration of the stipulated period.
ON PERSONAL PROPERTY: If there are unpaid rentals, the lessor has also the right
l. Commixtio - mixture of solids (Arts. 472 to 473) to demand payment of the same because they are considered
fruits of ownership. This right is separate and distinct from
2. Confusio - mixture of liquids (Arts. 472 to 473) the right of the lessor to demand that the lessee vacates the
3. Adjudicatio - award by court judgment (i.e., leased premises but these two (2) rights can be subject of and
damages awarded by the courts like those provided incorporated in one (l) complaint.
in Article 2206)
4. Specificatio- specification (Art. 474) IMPORTANT ARTICLES OF THE NEW CIVIL
CODE ON OWNERSHIP ANO POSSESSION
2. Accessio discreta- Accessio Discreta (Art. 441) Art. 429. The owner or lawful possessor of a thing has
l. N a turai fruits - same concept (Art. 442) the right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as
2. Civil fruits :._ same concept (Art. 442) may be reasonably necessary to repel or prevent an actual or
3. Industriai fruits - same concept (Art. 442) threatened unlawful physical invasion or usurpation of his
property.

1O. ATTRIBUTES OF OWNERSHIP A, resident of Manila, bought a farm lot in Dasmariiias, Cavite.
Because his job is in Manila, A visits his farm lot only during
l. Jus Utendi - Right to use weekends. One Sunday, he visited his farm lot and saw X planting
2. Jus Possidendi - Right to possess tomatoes in his farm lot. He told him that he owns the lot and he
cannot therefore plant tomatoes. X countered by saying that
3. Jus Fruendi - Right to the fruits ulthough he is not the owner, he does not want the farm lot to be
86 INTRODUCTION TO LAW
idle and that is the reason why he planted tomatoes. One thing led
to another and they have an altercation. In the process, A lost his
temper and he pulled off the tomatoes and threw them away.
Simultaneously, A shouted at X and told him to leave his premises.
X threw the tomatoes back to the face of A and the latter countered
by slapping X on the face. Cooler heads intervened and thereafter,
X left the premises.
Is A liable for slapping the face of X?
It is submitted that A is not liable because his act of slapping
X was done in the process of defending himself from an actual
aggression.
Self-defense includes .defense of his person and of his rights
to property.
Art. 523. Possession is the holding of a thing or the
enjoyment of a right.
Art. 524. Possession may be exercised on one's own name
or in that of another.
Art. 525. The possession of things or rights may be had
in one (l) or two (2) concepts: either in the concept of owner,
or in that of the holder of the thing or right to keep or enjoy
it, the ownership pertaining to another person.
Art. 526. He is deemed a possessor in good faith who is
not aware that there exists in his title or mode of acquisition
any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in
any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may
be the basis of good faith.
X rented a car from Aviz, the owner. Although X is not the
owner, he is entitled to possess the car during the stipulated period
of the lease.
If X believes in good faith Aviz' representations that i t is the
owner and based on this belief, he is using the car and makes
representations to Y, a friend, that he is a lessee, he is a possessor
in good faith.
If the car is in truth and in fact owned by Z, and X knows
that the car he rented is owned by Z, and he continues to use it
PROPERTY 87
based on his arrangements with Aviz, then X is a possessor in bad
faith.
11. EFFECTS OF POSSESSION
Art. 539. Every possessor has right 'to be respected in
his possession; and should he be distributed therein he shall
be protected in or restored to said possession by the means
established by the laws and the Rules of Court.
A possessor deprived of the possession through forcible
entry may within ten (lO) days from the filing ofthe complaint
presenta motion to secure from the competent court, in the
action for forcible entry, a writ of preliminary mandatory
injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from filing thereof.
A possessor, whether he is a possessor in the concept of owner
or holder, has three (3) rights under Art. 539, thus:
l. He has the right to be respected on his possession;
2. If he is disturbed in his possession, he has the right to
be protected or restored to his possession by any lawful
means;
3. If he is deprived of his possession through forcible entry,
he can secure a writ of preliminary mandatory injunction
to restore him in his possession.
NOTES:
l. Article 539, second paragraph thereof, states: "A possessor
deprived of the possession THROUGH FORCIBLE
ENTRY x x x." The remedy, therefore, of securing a writ
of preliminary mandatory injunction is not available if
the complaint is unlawful detainer.
2. In forcible entry, the possession is not lawful from the
beginning. In unlawful detainer, the possession is lawful
in the beginning but it became unlawful after the lessee
failed and refused to vacate upon demand and after the
contract of lease.
 GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 89

(i) Any third person who includes another to violate

the contract shall be liable for damages to the other
contracting party.
Chapter IX (j) In order to judge the intention qf the contracting
parties, their contemporaneous and subsequent acts
shall be principally considered.
GENERAL PRINCIPLES ABOUT
5. Concept of obligation
CONTRACTS ANO OBLIGATIONS
6. Sources of obligation
7. Nature and effects of obligations
IMPORTANT TOPICS IN THIS CHAPTER: 8. Obligation of a person obliged to give something
l. Elements of a contract 9. Obligation to give a determinate thing
2. When is a contract perfected? 10. When is a thing specific or determinate and when is it
generic or indeterminate?
3. Can the contracting parties agree on any term or condi-
tion? 11. Effect of obligation to deliver a specific thing and a
generic thing
4. Basic principles to remember about contracts
12. Effect of obligation
(a) As a rule, contracts are perfected by mere consent.
13. Effect of obligation not to do
(b) The contracting parties are bound by the contract
they have entered into. 14. Debtor is in default from the time of demand
(c) Contract takes effect only as between the parties, 15. Effect if there is fraud, negligence or delay
their assigns and their heirs. 16. Kinds of damages
(d) The parties to a contract may stipulate on anything 17.. Responsibility arising from fraud (dolo)
provided that it is not contrary to law, morals, good
customs, public order, and public policy. 18. Responsibility arising from negligence (culpa)
(e) No one may contract in the name of another without 19. Kinds of culpa (negligence)
authority. 20. Distinctions between culpa contractual, culpa aquiliana
(f) Obligations arising from contract have the force of and culpa criminal
law between the contracting parties and should be 21. ls a person responsible for those events which could not
complied with in good faith. be foreseen, or which though foreseen are inevitable?
(g) Obligations derived from law are not presumed. 22. Kinds of obligation
(h) Contracts are obligatory in whatever form they may 23. Definition and illustration
have been entered into, provided that ali the

l'
requisites for their validity are present. ~:
24. Extinguishment of obligations
':
88
90 INTRODUCTION TO LAW
DISCUSSION
When two (2) persons enter into a written agreement, the
terms and conditions they have agreed upon are stated therein.
They are bound by the said conditions (Art; 1308) and they should
therefore comply with the same in good faith. (Art. 1159) Hence, in
a contract of lease, the lessee is bound to pay the agreed rentals in
return for the use of the leased premises. The lessor, on the other
hand, has the right to demand the payment of the agreed rentals
on due date and during the effectivity of the lease. lf this is not
complied with by the lessee, the lessor. has the right to demand
that the lessee vacate the leased premises.
The observance of the conditions provided in a written
agreement is premised on the fact that prior to the act, they have
discussed the terms of the agreement and subsequently thereafter,
they have a meeting of the minds.
Hence, Artide 1305 of the New Civil Code defines a contract
as follows:
"Art. 1305. A contract is a meeting of minds between two
(2) persons whereby one binds himself, with respect to the
other, to give something orto render some service."
1. ELEMENTS OF A CONTRACT
CODE: CSC
l. Essential elements
(a) C - onsent
(b) S- ubject matter
(c) C- onsideration
Without these essential elements, there can be no contract.
2. Natural elements- Unless otherwise stipulated, these
elements are presumed to exist. Hence, in a contract of
sale, warranty against eviction and warranty against
hidden defects are presumed to exist.
3. Accidental elements - Those agreed upon by the
parties like agreement to pay in five (5) equal install-
ments.
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 91
2. WHEN IS A CONTRACT PERFECTED?
It depends.
A consensual contract like sale is perfected by mere consent.
(Art. 1315, NCC)
A real contract like pledge is perfected by delivery of the thing
pledged. (Art. 1316, NCC)
A formai contract like donation of a parcel of land where a
subdivision chapel shall be built requires a public instrument. (Art.
749, NCC)
3. CAN THE CONTRACTING PARTIES AGREE ON ANY TERM
OR CONDITION?
Yes, provided they are not contrary to law, morals, good
customs, public order or public policy. (Art. 1306, NCC)
LAW
A written agreement of separation between husband and wife
is contrary to law.
Agreement to pay a rate of interest higher than that imposed
by law is void.
MORALS
Agreement to pay excessive attorney's fees is immoral.
Promise to marry based on a carnai consideration is immoral.
GOOD CUSTOMS
Agreement between a man and a woman, both between 18
and 21 years old, not to seek parental consent is unlawful and
contrary to good customs. Likewise an agreement between a man
and a woman, both between 21 and 25 years old, not to seek
parental advice is also unlawful and contrary to good customs. In
the Philippines, seeking the advise and consent of parents before
marriage and if the parties are within the ages prescribed in the
New Family Code is an established custom.
92 INTRODUCTION TO LAW
PUBLIC ORDER
Agreement to have a live performance of nude dancers in Plaza
Miranda is contrary to morals, public order and public policy.
PUBLIC POLICY
Agreement exempting a public utility bus operator and the
driver from liability in case of accident arising from gross negligence
is contrary to law and public policy.
4. BASIC PRINCIPLES TO REMEMBER ABOUT CONTRACTS
l. As a rule, contracts are perfected by mere consent. (Art.
1315, NCC)
2. The contracting parties are bound by the contract they
have entered into. (Art. 1318, NCC)
3. As a rule, a contract ta~s effect only as between the
parties, their assigns and heirs subject to the foliowing
exceptions:
(a) Except in case where the rights and obligations
arising from the contract are not transmissible by
their nature or by stipulation and by provision of
law (Art. 1311, NCC); and
(b) Except where there is a stipulation in favor of a
third person.
4. If there is a stipulation in favor of a third person
(Stipulation Pour Autrui), the foliowing requisites must
be complied with:
(a) The contracting parties must have clearly and
deliberately conferred a favor upon a third person;
(b) A mere incidental benefit or interest of a person is
not sufficient;
(c) A third person must communicate his acceptance
to the obligor before the revocation of the contract
or of the stipulation by the originai parties. (Art.
1311, 2nd paragraph)
5. The parties to a contract may stipulate on anything
provided that the terms and conditions they have agreed
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 93
is not contrary to law, morals, good customs, public order
and public policy. (Art. 1306, NCC)
6. As a rule, an unauthorized person cannot enter into a
contract in the name of another. If he wants to do so, the
following are required: '
(a) He must be duly authorized by the person whom
he represents, either expressly or impliedly;
(b) He must have a right to represent said person;
(c) The contract entered into by him must be subse-
quently ratified by the person he represents. (Art.
1317, NCC)
7. Obligatiòns arising from contract have the force ·of law
between the contracting parties and should be complied
with in good faith. (Art. 1159, NCC)
8. Contracts are obligatory in whatever form they may have
been entered into, provided that ali the requisites for
their validity are present. If a certain form is required
by law, that requirement is absolute and indispensable.
(Art. 1356, NCC)
9. Any third person who induces another to violate the
contract shall be liable for damages to the other
contracting party. (Art. 1314, NCC)
10. In order to judge the intention of the contracting parties,
their contemporaneous and subsequent acts shali be
principaliy considered. (Art. 1317, NCC)
EXPLANATIONS
(a} A~A~.6-,-CON-~CTS ARE PERFECTED
B MERE CONSEN"!) ---"" -< . 9 . ""'et<~ ex J'U.f,P
Artic e 1315 -:refersto consensual contracts like a contract of
sale. This kind of contract is perfected by mere consent. From the
moment of perfection, the parties are bound not only to the
fulfiliment of what have been expressly stipulated but also to ali
the consequences which, according to their nature may be in keeping
with good faith, usage and law.
 94 INTRODUCTION TO LAW
As already · ed, a real contract is not perfected by mere
consent but b delivery. o•~<·,'-t\ ,,.. uc, Cf./\ o•cv\:."j t.t
-·/ .J ~---~-----.. f 'iO'jl'
Formai con must comply with a· s ecial fo -e'fu:t: i t
can be perfected. For instance, if X will donate · o Y in or~ e . ,
that the latter can build a chapel in said lot, the donation must be
in a public instrument.
(b) THE CONTRACTING PARTIES ARE BOUNO BY THE CON-
TRACT THEY HAVE ENTEREO INTO (ART. 1318, NCC)
The reason why a party entered into a contract is precisely to
have an evidence or proof of what they have entered into. Without
the consent of the other contracting party, one cannot just abandon
what has already been agreed upon simply because his friend
advised him that it is not beneficiai to him or that he wants it to
be changed by another term he wants. If this is allowed or tolerated
a contract will be a useless formality and that there will be more
confusion and misunderstanding between the parties. Such is not
the reason why parties entered into a contract.
(c) AS A RULE, A CONTRACT TAKES EFFECT ONLY AS
BETWEEN THE PARTIES, THEIR ASSIGNS ANO THEIR HEIRS
A sells his car to B and they executed a Deed of Sale to
evidence the same. Article 1311 says that said contract takes effect
only as between A and B, their assigns and heirs. Other relatives,
not being privies to the contracts, are not therefore bound by the
·· said contract of sale.
If before the delivery of the car, A dies, and it turns out that
the car sold by A to B is a car stolen by A from Y, the real owner, B
cannot compel the son of A to deliver the car for even during the
lifetime of A, he has clearly no right of ownership and possession.
The son of A, even if he likes to deliver the car to B, cannot do so
for he has equally no right whatsoever to the car.
(d) THE PARTIES TO A CONTRACT MAY STIPULATE ON
ANYTHING PROVIOEO THAT IT IS NOT CONTRARY TO LAW,
MORALS, GOOO CUSTOMS, PUBLIC OROER ANO PUBLIC
POLICY
This has been already discussed in this book.
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 95
d (e) NO ONE MAY CONTRACT IN THE NAME OF ANOTHER
pa<> WITHOUT AUTHORITY
Article 1317 should be construed in relation to Article 1897.
Article 1317 does not state whether the person entering into
~
vtw.W
a contract in the name ofthe other is an agent. lt merely says: "No
one may contract in the name of another without being authorized
by the latter, or unless he.has by law a right to represent him."
Assuming however, that the one entering into a said contract
is an agent acting for and in behalf of a certain principal, then the
following rules shall apply:
l. lf the agent acts with authority and in behalf of the
principal, the transaction is valid and the principal is
bound. The agent is not personally liable unless he
deliberately binds himself. (Art. 1897, NCC)
2. If the agent acts with authority but not in behalf of the
principal and he acts of himself, the principal is not
bound, except if the transaction involves things belonging
to the principal.
3. If the agent acts without authority but in behalf of the
principal, the transaction is unenforceable. (Art. 1403)
However, such transaction may be ratified. If ratified,
the transaction is valid from the very beginning. (Art.
1883, 2nd paragraph).
4. If the agent acts without authority and in behalf of
himself, the transaction is valid whether or not the
subject matter belongs to the principal, provided that the ··
agent can legally transfer the ownership of the thing a t
the time of delivery. Otherwise, the agent will be held
liable for eviction.
(f) OBLIGATIONS ARISING FROM CONTRACT HAVE THE
FORCE OF LAW BETWEEN THE CONTRACTING PARTIES
ANO SHOULO BE COMPLIEO WITH IN GOOO FAITH
If A leases his apartment to B and they executed a formai
contract of lease, there are rights and obligations àrising from the
sai d contract. A, the lessor, is duty-bound to yield possession of his
apartment to B and in return B shall pay A the agreed rentals for
the use of the leased premises. Each one of them has a duty and
obligation to comply with said contract in good faith.

·h·f)
fo•<M
/Jr-
96 INTRODUCTION TO LAW
l/l~
(g) OBLIGATIONS DERIVED FROM LAW ARE NOT PRESUMED
Legai obligations must be clearly expressed in the law which
creates lt for they cannot merely be presumed.
(h) CONTRACTS ARE OBLIGATORY IN WHATEVER FORM THEY
MAY HAVE BEEN ENTERED INTO, PROVIDED THAT ALL THE
REQUISITES FOR THEIR VALIDITY ARE PRESENT
As a rule, ali contracts are valid regardless of form, provided
that ali the essential requisites for their validity are present.
However, when a specific form is required for their validity, then
that form should be obse11red.
A form may be importiil\t for enforceability. Hence, Article 1403
of the New Civil Code pro-rides as follows:
: ·l~l
''Art. 1403. The following contracts are unenforceable,
unless they are ratified:
l. Those entered into the name of another person by
one who has been given. no authority or legai representation,
or who has acted beyond his powers;
2. Those that.dò not comply with the Statute ofFrauds
as set forth in this number. In the following cases, an
agreement hereafter made shall be unenforceable by action,
unless the same, or some note or memorandum thereof, be in
writing, and subscribed by the party charged, or by his agent;
evidence, therefore, òf the agreement cannot be received
without the writing, or a secondary evidence of its contents:
(a) An agreement that by its terms is not to be performed
within a year from the making thereof.
(b) A special promise to answer for the debt, default, or
miscarriage of another.
(c) An agreement made in consideration of marriage, other
than a mutuai promise to marry.
(d) An agreement for the sale ofgoods, chattels or things in
action, at a price not less than five hundred pesos
(P500.00), unless the buyer accepts and receives part of
such goods and chattels, or the evidences, or some of
them, of such things in action, or pays at the time some
part of the purchase money; but when a sale is made by
c'('-'
'J,.t!N
b &~c
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 97
auction and entry is made by the auctioneer in his sales
book, a t the time of the sale, of the amount and kind of
property sold, terms of sale, price, names of the pur-
chasers and person on whose account the sale is made,
it is a sufficient memorandum.
(e) An agreeme:p.t for the leasing for a longer period than
one year, or for the sale of real property or of an interest
therein.
(f) A representation as to the credit of a third person.
3. Those where both parties are incapable of giving
consent to a contract.
A form may be important for convenience. Hence, Article 1358
ofthe New Civil Code provides as follows:
"Art. 1358. The following must appear in a public
document:
l. Acts and contracts which have for their object the
creation, transmission, modification or extinguishment of real
rights over immovable property; sales of real property or of
an interest therein are governed by Articles 1403, No. 2, and
1405;
2. The cession, repudiation or renunciation of here-
ditary rights or of those of the conjugal partnership cf gains;
3. The power to administer property, or any other
power which has for its object an act appearing or which
shouid appear in a public document, or should prejudice a third
person;
4. The cession of actions or rights proceeding from an
act appearing in a public document.
Ali other contracts where the amount involved exceeds five
hundred pesos (P500.00) must appear in writing, even a private
one. But sales of goods, chattels, or things in action are governed
by Articles 1403, No.2 and 1405.
(i) ANY THIRD PERSON WHO INDUCES ANOTHER TO VIOLATE
THE CONTRACT SHALL BE LIABLE FOR.DAMAGES TO THE
OTHER CONTRACTING PARTY
A third person, if not a party or a privy to the contract, has
 98 INTRODUCTION TO LAW
no interest therein whatsoever. This artide (Art. 1314, NCC),
penalizes said third person for damages if he induces another to
violate 'his contract.
O) IN OROER TO JUOGE THE INTENTION OF THE CON·
TRACTING PARTIES, THEIR CONTEMPORANEOUS ANO
SUBSEQUENT ACTS SHALL BE PRINCIPALLY CONSIOEREO
When the terms and conditions are clear and they leave no
doubt as to the intention of the contracting parties, the literal
m!;)aning of the stipulations shall contro!. The evident intention of
the parties prevails over the wordings of the contract. In order to
judge this intention, the contemporaneous and subsequent acts of
the parties shall be principally considered. (Art. 1314, NCC)
Rules in the interpretation of the contracts are enumerated
on Articles 1370 to 1379 of the New Civil Code. Rule 130 of the
Revised Rules of Court shall supplement the foregoing rules.
5. CONCEPT OF OBLIGATION
There was a time when an obligation was classified into
obedential and conventional. Obedential obligations are those
imposed by the wili_ o:LGo.d-or_t.h~--~li':"__()_LN~tu.re. Conventional
obligations are those resulting from the will or ~f-.-the__
., contracting parties. This is how seventeenth century civilians
·cia8-~illedohHgàtion8~
In Roman Law, an obligation arises when one binds himself
to give (DARE) or to perform any duty stipulated (PRAESTARE).
As used in Roman Law, an obligation is a tie or a bond (vinculum
juris) which binds or holds two or more persons together, creating
both a duty and a right, the duty of the debtor to pay, and the
right of the creditor to be paid.
Under the New Civil Code, an obligation is now defined as "a
juridical necessity to give, to do or not to do. (3)" This definition,
however, has been criticized as defective because it views obligations
only from the side ofthe debtor.
The better definition of obligation, according to retired Justice
J.B.L. Reyes, is that given by Arias Ramos, (4) thus:
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 99
"An obligation is a juridical relation whereby a person (called
the creditor) may demand from another (called the debtor), the
observance of a determinate conduct (the giving, doing or not doing),
and in case of breach, may demand satisfaction from the asseta of
the latter."
6. SOURCES OF OBLIGATION
Obligation may arise from: (l) law; (2) contracts; (3) quasi-
contracts; (4) acts or omissions punished by law; and (5) quasi-
delicts. (Art. 1157, NCC)
Obligations arising from law are those expressly provided in
L the New Civil Code or in speciallaws. These are demandable. (Art.
1158, NCC)
Obligations arising from contracts have the force of law
between the contracting parties and should be complied with in
good faith. (Art. 1159, NCC)
Obligations arising from criminal offenses are governed by
penallaws subject to the provisions ofArt. 2177 and of the pertinent
provisions of Chapter 2, Preliminary Title on Human Relations,
Title XVII of the New Civil Code. (Art. 1161, NCC)
Obligations arising from quasi-contracts shall be subject to
the provisions of Chapter l, Title XVII of the New Civil Code.
7. NATURE ANO EFFECTS OF OBLIGATIONS
From the viewpoint of the subject matter of the obligation, i t
may either be:
l. A Real Obligation to give a specific thing or to give a
generic thing; or
2. A Personal Obligation to do or not to do.
8. OBLIGATION OF A PERSON OBLIGEO TO GIVE SOMETHING
A person obliged to give something has the following obligation:
l. He is obliged to take care of i t with the proper diligence
of a good father of a family, EXCEPT if the law or
stipulation of the parties requires another standard of
care. (Art. 1163, NCC)
100 INTRODUCTION TO LAW
NOTES:
l. If the parties have agreed on the kind of diligence to be
observed, that which is stipulated shall be observed.
2. If there is no agreement, the proper diligence of a good
father of a family shall be observed.
3. If the law requires that a specific kind of diligence shall
be observed, this prevails over any kind of agreement.
EXAMPLE: A stipulation that JD Transit, Inc., will carry
its passengers by using ordinary diligence is void for the
law specifically requires that a common carrier shall
carry its passengers "safely as far as human care and
foresight can provide, using the utmost diligence of very
cautious persons, with due regard forali circumstances."
(Art. 1755, NCC)
9. OBLIGATION TO GIVE A DETERMINATE THING
The obligation to give a determinate thing includes the
obligation to deliver ali its accessions and accessories, even though
they may not have been mentioned. (Art. 1166, NCC)
10. WHEN IS A THING SPECIFIC OR DETERMINATE ANO WHEN
IS IT GENERIC OR INDETERMINATE?
A thing is specific or determinate when it is capable of parti-
cular designation.
EXAMPLE: This Toyota Corolla Car with Plate No. NLX-844.
A thing is generic or indeterminate when it refers to a class
and cannot be pointed out with particularity.
EXAMPLE: A house.
11. EFFECT OF OBLIGATION TO DELIVER A SPECIFIC THING
ANO A GENERIC THING
There is a great difference. The obligation to deliver a specific
thing is extinguished by a fortuitous event, EXCEPT in the
following cases:
l. When expressly provided by law;
2. When expressly agreed upon by the parties;
GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 101
3. When the nature of the obligation requires the assump-
tion of risk. (Art. 1174, NCC)
EXAMPLE:
'
l. X is obliged to give Y this book. Before X can deliver it
to Y, his library was burned and said book was likewise
burned. Here, the obligation to deliver is extinguished.
The obligation to deliver a generic thing is not
extinguished by fortuitous events.
2. X is obliged to give Y a ballpen. If said ballpen is lost, it
can be replaced by another ballpen.
12. EFFECT OF OBLIGATION
If a person obliged to do something fails to do it, or if he does
it in contravention of the tenor of the obligation, the effects are as
follows:
l. The obligation shall be executed at his cost (debtor's cost);
2. It may be decreed that what has been poorly done be
undone. (Art. 1167, NCC)
13. EFFECT OF OBLIGATION NOT TO DO
If the obligation consista in not doing, and the obligor does
what has been forbidden him, it shall be undone at his expense.
(Art. 1168, NCCJ
14. DEBTOR IS IN DEFAULT FROM THE TIME OF DEMAND
Those obliged to deliver or to do something are in default from
the time of demand, judicial or extra-judicial. Without this demand,
the debtor is not in default.
In the foliowing instances, however, demand is not needed:
l. When the obligation expressly so provides;
2. When the law expressly so provides;
3. When time is of the essence of the contract;
4. When demand would be useless, as when the obligor has
rendered it beyond his power to perforni. (Art. 1169, NCC)
102 INTRODUCTION TO LAW GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 103

15. EFFECT IF THERE IS FRAUD, NEGLIGENCE OR DELAY 3. There is no deliberate intention to cause damage.
Those who in the performance of their obligations are guilty
of fraud, negligence or delay, and those who in any manner 19. KINDS OF CULPA (NEGLIGENCE)
contravene the tenor thereof, ARE LIABLE FOR DAMAGES.
l. Culpa contractual or Contractual negligence.
<l
16. KINDS OF DAMAGES 2. Culpa aquiliana or Quasi-delict.

l. Moral damages 3. Culpa criminal or Criminal negligence.

For moral anguish, bes-
mirch~ sleep-
less nights, serious anxiety,
etc.
2. Exemplary damages To deter others fronLCOlJl-
mi@!!g the same !!.et.
3. Actual damages To compensate the aggriev-
ed party for actual losses
suffered.
4. Liquidated damages Damages agreed upon by
~
20. DISTINCTIONS
CULPA CULPA AQUILIANA l CULPA CRIMINAL
CONTRACTUAL
(a) There is a pre- (a) There is no p re-~ (a) There is a pre-exist-
existing obligation. ing obligation.
existing obligation
(a contract, either
expressed or im-

the parties. plied)

5. Temperate When the exact amount of (b) Preponderance l(b) Preponderance of,(b) The crime m.ust be
of evidence is evidence is needed. proven beyond rea-
damages cannot be d~­ required. sonable doubt.
mined.
(c) Defense of a good (c) Defense of a good (c) This defense cannot
6. Nominai To vindicate a right. The father of a family father of a family in be interposed. If the
ass~ent of nominai in the selection the selection of the employee is insol-
damages is left to the dis- and supervision of employees is a pro- vent or incapable to
cretion of the court. employees is not per defense of the pay the civil aspect
proper and com- employer. or liability, the em-
plete defense but ployer is subsidiar-
17. RESPONSIBILITY ARISING FROM FRAUD (DOLO) this can mitigate ily liable.
liability for da-
l. It is demandable in ali obligations. Any waiver of an mages.
action for future fraud is void. (Art. 1171, NCC)
(d) The existence of a (d) The negligence ofl(d) The innocence of
2. Liability due to fraud cannot be reduced by the courts. contract must be the defendant must the accused is pre-
3. There is deliberate intention to cause damage. proved. If it is be proven. sumed until the
proved and it is contrary is proved.
also proven that
18. RESPONSIBILITY ARISING FROM NEGLIGENCE (CULPA) the contract was
not complied with,
l. It is also demandable but such liability may be regulated it is presumed
by the courts according to the circumstances. that the debtor is
at fault.
2. It can be reduced in certain cases.
104 INTRODUCTION TO LAW GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 105

21. IS A PERSON RESPONSIBLE FOR THOSE EVENTS WHICH
COULD NOT BE FORESEEN, OR WHICH THOUGH FORE-
SEEN ARE INEVITABLE?
As a rule, there is no liability for a fortuitous event (that which
could not be foreseen, or which even if foreseen was inevitable)
EXCEPT IN THE FOLLOWING CASES:
. (b) · I will give you my car today but if you fail in the
bar examinations to be given in September 2003, I
will be the owner of the tar aga:in. In this example,
the condition is a resolutory on~ because the
happening of the condition e~tinguishes the
obligation.

l. When expressly specified by law; 3. Alternative obligation - It is one where out of the
two (2) or more pre~entations which will be given, only
2. When expressly stipulated by the parties; and one is due.
3. When the nature of the obligation requires the assump-
tion of risk. EXAMPLE:
•.

'!{~
I will give you any of tpe following: My 24 karat
22. KINDS OF OBLIGATION ii
gold ring worth P30,000.d'O~ or my Lancer car, 1978
',f.
model, worth P30,000.00, .01"" my residential lot in the
l. Pure obligation as distinguished from conditional province worth P30,000.00. In this example, I can give
obligation. any of the three properties I have mentioned and if I
2. Alternative obligation as distinguished from facultative give one of them, I have complied with the obligation.
obligation. 4. Facultative obligation "'- It is one where only one
presentation has been agreed upon but the obligor may
3. Joint obligation as distinguished from solidary obligation.
render another in substitution.
4. Divisible obligation as distinguished from indivisible
obligation. EXAMPLE:
5. Obligation with a penai clause. I promise to give Marie my 14 karat gold ring worth
P15,000.00 but it is agreed that I could give her a second-
hand car with the same value as a substitute.
23. DEFINITION ANO ILLUSTRATION
5. . Joint obligation - In a joint obligation, an obligor
l. Pure obligation - lt is an obligation without a answers only for a part of the entire liability.
condition or a term and therefore, it is demandable at
once.
EXAMPLE:
EXAMPLE: I promise to pay you P100.00 upon demand. X and Y borrowed P1,000.00 from A and it is agreed
that they are joint debtors of A. X will only be liable to
2. Conditional obligation - It is one with a condition. pay P500.00. This is so because they are joint debtors.

EXAMPLES: J
r
6. Solidary obligation - It is done where both or ali of
the debtors are liable for the whole liability they have
(a) I will give a car to you if you pass the bar exami- !; incurred.
nations in September 2003. In this example, the i'
condition is a suspensive one because the giving of EXAMPLE:
the car depends on the results of the examination X and Y borrowed P1,000~00 fror.J. A and it is agreed
to be given in September 2003.
:f! that they are solidary debtors. X can be held liable for
106 INTRODUCTION TO LAW GENERAL PRINCIPLES ABOUT CONTRACTS AND OBLIGATIONS 107

the whole Pl,OOO.OO and so with Y. The creditor can run 3. By the condonation or remission of the debt;
against both or against any one of them because they 4. By the confusion or merger of the rights of creditor and
are solidary debtors. debtor;
7. Divisible obligation - A divisible obligation is an 5. By compensation;
obligation which is capable of partial performance.
6. By novation.
EXAMPLE: Other causes of extinguishment of obligations, such as annul-
A agreed to deliver 500 kilos of rice to B. Here, the ment, rescission, fulfillment of a resolutory condition, and pres-
subject matter is capable of partial performance in the cription, are governed elsewhere in this Code.
sense that the parties may agree that A will deliver 250
kilos of rice today and another 250 kilos of rice tomorrow.
8. Indivisible obligation - It is an obligation which is
not capable of partial performance.

EXAMPLE:
A agreed to deliver DX Toyota Corolla to Y. Here,
the subject matter is not capable ofpartialperformance
because the car cannot be divided into two.
9. Obligation with a penai cause- In obligations with
a penai clause, the penalty shall substitute the indemnity
for damages and the payment of interest in case of non-
compliance.

EXAMPLE:
X agreed to finish the painting job of the Cultural
Center Building within sixty (60) days. It was stipulated
that in case of delay, X will be liable to pay a penalty of
Pl,OOO.OO per day of delay. If it turns out therefore that
X fails to finish the painting job within sixty (60) days
and i t was only on the 65th day that he finished the job,
X will be liable to pay a penalty of P5,000.00.

24. EXTINGUISHMENT OF OBLIGATIONS

Obligations are extinguished by any of the following reasons:
Art. 1231. Obligations are extinguished:
l. By payment or performance;
2. By the loss of the thing due;
 SPECIAL CONTRACTS 109

(a) Article 1916, New Civil Code

(b) Article 1544, New Civil Code

Chapter X III. PARTNERSHIP

l. Definition
SPECIAL CONTRACTS 2. Basic principles to remember
3. Necessary formalities in creating a partnership
4. Kinds of partnership
IMPORTANT TOPICS IN THIS CHAPTER:
(a) Generai partnership
I. SALE (b) Limited partnership
l. Definition of a contract of sale (c) Universal partnership
2. Essential elements of a contract of sale (d) Particular partnership
3. Form of a contract of sale 5. Kinds of partners
4. Brief discussion of the essential requisites 6. Definition
5. Requisites of a valid subject matter
Iv. LOAN
6. Obligations of the seller
l. Definition
7. Obligations of the buyer
2. Kinds of loan
3. Basic principles to remember
II. AGENCY
l. Definition V. PLE.DGE AND MORTGAGE
2. When is a contract of agency perfected? l. Definition
3. Acceptance of agency between persons who are present 2. Provisions common to pledge and mortgage
and between persons who are absent
3. Distinction between pledge and real mortgage
4. Basic principles of agency
4. Distinction between real mortgage and chattel mortgage
5. Obligations of the agent :~'
.)

6. Obligations of the principal VI. ANTICHRESIS

7. Cases when the principal is not liable for expenses l. Definition
incurred by agent
2. Distinction between pledge and antichresis
8. lmportant articles to remember
3. Distinction between antichresis and mortgage
108 4. Basic principles
110 INTRODUCTION TO LAW
VII. COMMON CARRIERS
l. Definition
2. Criteria as to whether a carrier is common or private
3. Vigilance required of a common carrier
4. Extraordinary vigilance over the goods
5. Extraordinary diligence for the safety of passengers
DISCUSSION
The author has chosen to cover only the contracts discussed
in this chapter on account of their usefulness and importance in
day-to-day life. Everyday, contracts of sale, agency, partnership,
loan, pledge, mortgage and transportation are usually heard and
encountered not only by lawyers but also by laymen. 1t is therefore
important for a beginner in the study of law to have a basic and
working knowledge of the above-mentioned contracts by way of
preparing them to a deeper and more det:iiled study of law.
I. SALE
1. DEFINITION OF A CONTRACT OF SALE
Contract of sale is a contract whereby one of the contracting
parties obligates himself to transfer the ownership of an d to deliver
a determinate thing, and the other to pay therefore a price certain
in money or its equivalent. (Art. 1458, NCC)
2. ESSENTIAL ELEMENTS OF A CONTRACT OF SALE
The essential elements of a contract of sale are as follows:
CODE: C-S-C
C- onsent
S - ubject matter
C-ause
SPECIAL CONTRACTS 111
l. Consent or meeting ofthe minds - The vendor agrees
to sell and transfer ownership of his property to the
vendee in return for the price the latter agrees to pay
the vendor.
2. Subject matter - The subject matt~r of the contract
must be specific. If the parties have not agreed on the
subject matter of their transaction, they have no meeting
of the minds.
3. Cause or consideration - The price may be in the form
of money or its equivalent, as stated in the last sentence
of Art. 1458. Therefore, a check or a promissory note may
suffice instead of cash.
3. FORM OF A CONTRACT OF SALE
No particular form is needed to make a contract of sale valid
as. between the parties. For as long as ali the essential requisites
for its validity are present, a contract of sale shall be valid and
obligatory, regardless of its form. Therefore, a contract of sale may
either be oral or in writing.
However, there are contracts of sale which must be in writing
like a sale of a "piece of land or any interest therein," or a sale of
personal property if the price is P500.00 or more, or a sale which
will be performed only after a period of more than one (l) year
from the execution of the agreement.
Hence, the following articles ofthe New Civil Code provide as
follows:
~rt. 1874. When a sale of a piece of land or any interest
therein is through an agent, the authority of the latter shall
be in writ~ng; otherwise, the sale shall be void."
"Art. 1403. The following contracts are unenforceable,
unless they are ratified:
l. Those entered into the name of another person by
one who has been given no authority or legai representation,
or who has acted beyond his powers;
2. Those that do not comply with the.Statute ofFrauds
as set forth in this number. In the following cases, an
agreement hereafter made shall be unenforceable by action,
112 INTRODUCTION TO LAW
unless the same, or some note or memorandum thereof, be in
writing, and subscribed by the party charged, or by his agent;
evidence, therefore, of the agreement cannot be received
without the writing, or a secondary evidence of its contents:
(a) An agreement that by its terms is not to be per-
formed within a year from the making thereof;
(b) A special promise to answer for the debt, default,
or miscarriage of another;
(c) An agreement made in consideration of marriage,
other than a mutuai promise to marry;
(d) An agreement for the sale of goods, chattels or
things in action, at a price not less than five hun-
dred pesos (P500.00), unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in action,
or pay a t the time some part of the purchase money;
but when a sale is made by auction and entry is
made by the auctioneer in his sales book, at the time
of the sale, of the amount and kind of property sold,
terms of sale, price, names of the purchasers and
person on whose account the sale is made, it is a
sufficient memorandum;
(e) An agreement for the leasing for a longer period
than one (l) year, or for the sale of real property or
of an interest therein;
(f) A representation as to the credit of a third person.
3. Those where both parties are incapable of giving
consent to a contract.
4. BRIEF DISCUSSION OF THE ESSENTIAL REQUISITES
CONSENT - A contract of sale is perfected at the moment
there is a meeting of minds and therefore it is perfected by mere
consent. Delivery of payment is not essential for the perfection of a
contract of sale.
More specifically, the contract of sale is perfected at the
moment there is a meeting of the minds upon the thing which is
the object of the contract and upon the price. (Art. 1475, 1st par.)
SPECIAL CONTRACTS 113
EXAMPLES:
l. When A sells his car to B and they are facing each other
when B agreed to pay PlO,OOO.OO, the price asked by A,
the contract of sale is perfected from the moment A
accepted the offer of B unconditionally..
2. A placed an advertisement in a newspaper to sell his car.
B, an interested buyer, called by telephone and told him
that he is amenable to pay the price asked by A without
condition. From that moment, there is a perfected con-
tract of sale.
3. A wrote a letter to B and offered to sell his car to him.
Upon receipt of said letter, B wrote a letter reply
accepting the offer of A and which letter was received by
A on February l, 2002 at 7:00 p.m. Before receiviilg the
letter, however, A wrote a letter to B and informed him
that he is withdrawing his offer. Here, there is no
perfected contract of sale because prior to the date and
time A received B's letter of acceptance, he had already
withdrawn his offer. Clearly, A has already withdrawn
his offer before he knew of the acceptance. Therefore,
there is no meeting of the minds.
SUBJECT MATTER - The subject matter of the contract
of sale must be specific or determinate, not generic or indeterminate.
As already stated in the last chapter, a specific thing is a thing
which can be designated with particularity.
Future things may be the object of sale provided they are
already in existence a t the time of the perfection of the contract.
5. REQUISITES OF A VALlO SUBJECT MATTER
l. The subject matter must be specific or determinate.
2. The subject matter must be lawful.
3. The seller must have the right to transfer the ownership
thereof at the time of delivery.
CAUSE OR CONSIDERATION - Witho:ut a lawful cause
or consideration, the contract of sale is void. The cause in a contract
of sale is a price certain, in money or its equivalent.
114 INTRODUCTION TO LAW SPECIAL CONTRACTS 115

6. OBLIGATIONS OF THE SELLER 2. WHEN IS A CONTRACT OF AGENCY PERFECTED?

The principal obligations of the seller are as follows:
l. To deliver the determinate object of the contract;
2. To transfer its ownership;
3. To warrant (against eviction and against hidden defects);
4. To pay for the expenses of the deed of sale; and
5. To preserve the thing from the moment of perfection up
to the time of delivery.
7. OBLIGATIONS OF THE BUYER
The principal obligations of the buyer are as follows:
l. To accept delivery; and
2. To pay the price - at the time and piace stipulated in
the contract.
II. AGENCY
1. DEFINITION
Artide 1868 of the N ew Civil Code defines agency as a contract
whereby a person binds himself to render some service or to do
something in representation of or in behalf of another with the
consent or authority of the latter.
In Rallos vs. Go Chan & Sons Realty Corporation, et al., G.R.
No. L-24332, January 31, 1978, agency was defined as "a relation-
ship between two parties whereby one party called the principal,
authorizes another, called the agent, to act for and in his behalf in
transactions with third persons."
Artide 1868 gives the impression that the agent must always
expressly represent the principal. This, of course, is not necessarily
true for there are cases when the agent acts in behalf of himself
and yet the principal would stili be bound such as when the contract
involves things belonging to the principal.
Agency is perfected by the meeting of the offer and acceptance
upon the thing and the cause which are to constitute the contract.
(Art. 1319, New Civil Code)
Acceptance must be made expressly or impliedly. It may be
implied from the acts of the agent, from his silence and from his
inaction according to the circumstances. (Art. 1870, NCC)
3. ACCEPTANCE OR AGENCY BETWEEN PERSONS WHO ARE
PRESENTANO BETWEEN PERSONS WHO ARE ABSENT
l. Between persons who are present - The acceptance
of a person may also be implied if the principal delivers
his power of attorney to the agent and the latter receives
it without any objection.
2. Between persons who are absent - The acceptance
of the agency cannot be implied from the silence of the
agent, except:
(a) When the principal transmits his power of attorney
to the agent, who receives it without any objection.
(b) When the principal entrusts to him by letter or
telegram a power of attorney with respect to the
business in which he is habitually engaged as an
agent, and he did not reply to the letter or telegram.
4. BASiC PRINCIPLES OF AGENCY
l. It has the following characteristics:
(a) It is a consensual, bilatera!, nominate, principal and
preparatory contract;
(b) lt is consensual because it is perfected by mere
consent except when it involves the sale of land or
any interest therein. It is bilatera! because the
principal and the agent have reciproca! obligations.
It is nominate because it has a name designated by
law. It is principal because it can exist by itself
without depending on another contract. It is prepa-
ratory because a contract of agency is preparatory
to 1:1. subsequent contract.
116 INTRODUCTION TO LAW
2. The appointment of an agent by the principal is based
on trust. Therefore, the agent is expected to act within
the scope of his authority and to act in behalf of his
principal.
3. As already explained above, a situation may arise when
the agent is authorized by the principal but he acts in
behalf of himself. It is also possible that the agent is not
authorized but he acts in behalf ofhis principal. Because
of these possibilities the foliowing situations may arise,
to wit: ·
(a) The agent acts with authority and in behalf of
the principal - The transaction is valid and the
principal is bound by the acts of the agent. The
agent assumes no personal liability unless he
deliberately bound himself.
(b) The agent is authorized by the principal but
he acts in behalf of himself, not in behalf of
the principal - As a rule, the principal is not
bound by the acts of the agent except if it involves
things belonging to the principal.
(c) The agent acts without authority but in behalf
of the principal - The transaction is
unenforceable but i t may be ratified. If ratified, the
contract is validated from the very beginning.
(d) The agent acts without authority and in his
own behalf - The transaction is valid, whether
or not the subject matter belongs to the principal
provided that the agent can legaliy transfer the
ownership of the thing at the time of delivery.
Otherwise, he will be held liable for eviction.
S. OBLIGATIONS OF THE AGENT
Art. 1881. To act within the scope of his authority;
Art. 1884. To carry out the agency and be liable for damages
in case of non-performance; and to finish the
business already begun on the death of the
principal, should delay entail any danget;
SPECIAL CONTRACTS 117
Art. 1886. To advance necessary funds, if stipulated, except
if principal is insolvent;
Art. 1887. To act in accordance with the instructions of the
principal (in default thereof, he shali do ali that
a good father of a good famiÌy would do, as
required by the nature of the business);
Art. 1888. Not to carry out the agency ifits execution would
manifestly result in loss or damage to the
principal;
Art. 1889. To be liable for damages, if there being a conflict
between his interest and that of the principal,
he prefers his own;
Art. 1891. To render an account of his transaction and to
deliver to the principal whatever he may have
received by virtue of the agency even though it
may not be owing to the principal (stipulation
exempting the agent from this obligation is
VOID).
6. OBLIGATIONS OF THE PRINCIPAL- (From Arts. 191 Oto 1913)
CODE: CARI
C- omply
A- dvance
R- eimburse
I - ndemnify
Art. 1910. To comply with ali the obligations which the agent
may have contracted within the scope of his
authority.
Art. 1912. To advance to agent, iflatter requests (1st par.)
sums necessary to execute the agency.
Art. 1912. To reimburse the agent for all advances he (2nd
par.) made, even if business was not successful
(provided agent is free from ali fault).
Art. 1913. To indemnify the agent forali damages which the
execution of agency may have caused the agent,
without his fault or negligence.
118 INTRODUCTION TO LAW SPECIAL CONTRACTS 119

7. CASES WHEN PRINCIPAL IS NOT LIABLE FOR EXPENSES (b) To the first possessor in good faith, if there is no
INCURRED BY AGENT inscription; and

Art. 1918, provides as follows: (c) To the person who presenta the oidest titie, ifthere
is no first registrant and first possessor in good
l. If the agent contravenes instructions of the principai faith. '
uniess the Iatter wishes to avail himseif of the benefits
derived from the contract; CODE:RPO
2. When expenses were due to the fauit of the agent; R - egistrant in good faith
3. When the agent incurred them knowing that unfavorabie P - ossessor in good faith
resuit wouid ensue, if the principai was not aware O - Idest titie
thereof;
III. PARTNERSHIP
4. When stipuiated that the agent bears the expenses, or
that the agent wouid be allowed oniy a certain sum. 1. DEFINITION
By the contract of partnership, two (2) or more persona bind
8. IMPORTANT ARTICLES TO REMEMBER
themseives to contribute money, property, or industry to a common
Art. 1916. When two persons contract with regard to the same fund, with the intention of dividing the profits among themseives.
thing, one with the agent and the other with the principai, and the It may aiso be formed to exercise a profession. (Art. 1767, New Civil
two contracts are incompatibie with each other, that of prior date Code)
shall be preferred, without prejudice to the provisions of Art. 1544.
2. BASIC PRINCIPLES TO REMEMBER
Art. 1544. Ifthe same thing shouid have been soid todifferent
vendees, the ownership shall be transferred to the person who may l. Partnership is based on MUTUAL TRUST by or among
have first taken possession thereof in good faith, if it shouid be the partners. (delectus personarum)
movabie property. 2. Like a corporation, i t has ·a personaiity separate and
Shouid it be immovabie property, the ownership shall beiong distinct from the individuai partners. (Art. 1768, NCC)
to the person acquiring it who in good faith first recorded it in the 3. The partners may contribute money, property or industry
Registry of Property. to common fund.
Shouid there be no inscription, the ownership shall pertain to 4. A partnership may be constituted in any form except
the person who in good faith was first in the possession; and, in where immovable property or real rights are contributed
the absence thereof, to the person who presents the oidest titie, thereto, in which case, a public instrument shall be
provided there is good faith. necessary. (Art. 1771, NCC)
5. A contract of partnership is void, whenever immovabie
PREFERENCE: property is contributed thereto, of an inventory of said
property is not made, signed by the parties, and attached
l. IF PROPERTY IS MOVABLE to the public instrument.
(a) To the first possessor in good faith.
3. NECESSARY FORMALITIES IN CREATING A PARTNERSHIP
2. IF PROPERTY IS IMMOVABLE
l. A contract of partnership having a capitai of P3,000.00
(a) To the first registrant in good faith; or more, in money or property, shall appear in a public
120 INTRODUCTION TO LAW SPECIAL CONTRACTS 121

instrument and recorded in the Securities and Exchange 5. KINDS OF PARTNERS

Commission. However, even if this is not complied with,
the partnership and the members thereof remain liabie A partner may be a capitalist partner or an industriai partner
to third persons. (Art. 1772, NCC) insofar as their contribution to the partnership is concerned.

2. lf what is contributed is reai property, an inventory A partner may be a generai partner or a Iimited partner insofar
as liabiiity is concerned. e
shouid be attached and there must be a public instru-
ment, an inventory of the said property signed by the A person may be a managing partner, silent partner, liquid-
parties shouid be made, and this inventory shouid be ating partner or a secret partner insofar as participation in the
attached to the public instrument. If this is not compiied partnership is concerned.
with, the partnership is void and has no juridicai
personality even as between the parties. 6. DEFINITION
l. Capitalist Partner - The partner who contributes
4. KINDS OF PARTNERSHIP
·money or property to the part-
According to liability, a partnership may be generai or limited: nership.
GENERAL PARTNERSHIP - a partnership where ali the 2. Industriai Partner - The partner who contributes
parties are generai partners who are liabie even to extent of their his industry.
individuai properties, after the exhaustion of the partnership assets.
3. Generai Partner - A partner who is liabie beyond
LIMITED PARTNERSHIP- A partnership where one the extent ofhis contribution to
partner is a generai partner and the others are limited partners. A the partnership.
Iimited partner is Iiabie oniy to the extent of his contribution.
4. Limited Partner - A partner who is liabie oniy to
As to its object, a partnership is either universai or particular: the extent of his contribution.
UNIVERSAL PARTNERSmP- This may referto universai 5. Secret Partner - A partner whose connection
partnership of ali present property or to a universai partnership of · with the firm is kept secret.
ali profits.
6. Silent Partner - A partner who does not parti-
(a) Universal partnership of all present property - A part- cipate in the management of
nership of ali present property is that in which the the partnership but who shares
partners contribute ali the property which actualiy profits or Iosses, as the case
beiongs to them to a common fund, with the intention of may be.
dividing the same among themseives, as weli as ali the
7. Liquidating Partner- A partnership who takes charge
profits which they may acquire therewith. (Art. 1779, 1st
of Iiquidating the affairs of the
par., NCC)
partnership after its dissoiu-
(b) Universal partnership of all profits- Comprises ali that tion.
the partners may acquire by their industry or work
during the existence of the partnership. (Art. 1779, 2nd Iv. LOAN
par., NCC)
1. DEFINITION
PARTICULAR PARTNERSHIP- A particuiar partnership
has for its object determinate things, their use of fruits, or specific By the contract of Ioan, one of the parties, delivers to another,
undertaking, or the exercise of a profession or vocation. either something not consumabie so that the Iatter may use the
122 INTRODUCTION TO LAW SPECIAL CONTRACTS 123

same for a certain time and return it, in which case the contract is (b) Ownership goes to the borrower.
called a commodatum; or money or other consumable thing, upon
(c) It is a loan for consumption.
the condition that the same amount of the same kind and quality
shall be paid, in which case the contract is simply called a loan or (d) It refers to personal property.
mutuum. (e) Same amount that was borrowed shall be returned.
Commodatum is essentially gratuitous.
In commodatum, the bailor retains the ownership of the thing 3. BASIC PRINCIPLES TO REMEMBER
loaned, while in simple loan, ownership passes to the borrower.
l. A contract of loan is a real contract. Therefore, it is
(Art. 1933, NCC) perfected upon delivery of the thing loaded.
2. Delivery of the thing loaned is essential because the
2. KINDS OF LOAN purpose of the contract is either to transfer its use or its
l. Commodatum- One where the bailor (lender) delivers t ownership.
a non-consumable thing so that the bailee (borrower) may
3. Commodatum is purely personal and the borrower cannot
use it for a certain time and return it.
lend the thing he borrowed to another.
EXAMPLE: A borrowed B's car which he will use
for three (3) days while taking a vacation in Baguio. B
agreed to lend his car to A for free. A should return B's
rv. PLEDGE AND MORTGAGE
car.
1. DEFINITION
2. Mutuum or Simple Loan - One where money or other
consumable thing is loaned with the obligation of paying Pledge is a real contract whereby one person (called pledgor)
the same amount of the same kind and quality. delivers a movable to another (called pledgee) as security for the
EXAMPLE: IfA borrowed PlOO.OO from B, A should principal obligation and with the understanding that when the
obligation is paid or fulfilled, the thing pledged shall be returned
return the same amount.
by the pledgor to the pledgee.
Mortgage is a real contract whereby one person (called the
DISTINCTIONS
mortgagor) offers his real property as security for the principal
l. COMMODATUM obligation and with the understanding that when the obligation is
paid or fulfilled, the mortgage or encumbrance on the said property
(a) Essentially gratuitous. shall be cancelled and released.
(b) Ownership is retained by the bailor or lender.
(c) lt is a loan for use or temporary possession. 2. PROVISIONS COMMON TO PLEDGE ANO MORTGAGE
(d) It involves real or personal property. Art. 2085. The following requisites are essential to the
contracts of pledge and mortgage:
(e) The same thing that was borrowed shall be re-
turned. l. That they be constituted to secure the fulfillment of a
principal obligation;
2. MUTUUM 2. That the pledgor or mortgagor be the absolute owner of
(a) May be gratuitous or onerous. the thing pledged or mortgaged;
124 INTRODUCTION TO LAW SPECIAL CONTRACTS 12l'l

3. That the persons constituting the pledge or mortgage the right to receive the fruits of an immovable of his debtor, with
have the free disposal of their property, and in the the obligation to apply them to the payment of the interest, if owing,
absence thereof, that they be legally authorized for the and thereafter to the principal of his credit x x x."
purpose.
Third persons who are parties to the principal obligation may 2. DISTINCTIONS
secure the latter by pledging or mortgaging their own property.
PLEDGES ANTICHRESIS
3. DISTINCTIONS
l. Pledge is constituted on l. Antichresis is constituted on
personal property. immovable property.
REAL MORTGAGE PLEDGE
2. Not applicable (no fruits). 2. The creditor has the right to l
l. Constituted on real property. l. Constit:uted on personali the fruits of the immovables.
(Art. 2124) property. (Art. 2094)
3. DISTINCTIONS
2. As a rule, mortgage retains 2. The thing pledged must be l
!~
the property. placed in the possession of the 1

creditor, or of a third person ANTICHRESIS MORTGAGE

l
by common agreement.
l. The creditor acquires the l. The creditor has no right to
3. N ot valid against third per- 3. N ot valid against third per- right to receive the fruits of the fruits.
sons i~ not registered. (Art. sons unless a description of an immovable of his debtor. l
2125) the thing pledged appear in l

a public instrument. (Art.

4. BASIC PRINCIPLES
2096, NCC)
l. The amount of the principal and of the interest shall be
specified in writing, otherwise, the contract of antichresis
4. DISTINCTIONS
is VOID. (Art. 2134, NCC)
2. The actual market value of the fruits at the time of
REAL MORTGAGE CHATTEL MORTGAGE application thereof to the interest and principal shall be
l. Constituted in immovables. Constituted on movables. measured of such application. (Art. 2133, NCC)
l.
2. May guarantee future obliga- 2. Cannot guarantee future 3. The creditor is obliged to pay the taxes and charges
ti on. upon the estate unless otherwise stipulated. (Art. 2135,
obligation.
NCC)

VI. COMMON CARRIERS

V. ANTICHRESIS
1. DEFINITION
1. DEFINITION
Art. 1732 of the New Civil Code defines common catriers as
Article 2132 of the New Civil Code defines antichresis as follows: x x x "Common carriers are persons, corporations, firms or
follows: x x x "By the contract of antichresis, the creditor acquires associations engaged in the business of carrying or transporting
 SPECIAL CONTRACTS 127
126 INTRODUCTION TO LAW

passengers or goods or both, by land, water, or air, for compensation, 5. EXTRAORDINARY DILIGENCE FOR THE SAFETY OF PAS·
offering their services to the public." SENGERS
Art. 1755. Acommon carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
COMMON CARRIER PRIVATE CARRIER utmost diligence ofvery cautious persona, with a'due regard forali
the circumstances. .
l. A common carrier offers its l. lt is not available to the
services to the public. (Art. public but only to certain
1732, NCCJ perso ns.

2. CRITERIA AS TO WHETHER A CARRIER IS COMMON OR

PRIVATE
lf the carrier is obliged to carry ali persons applying for
passage and there is no legai excuse to refuse, it is a public carrier.
Otherwise, it is a private carrier.

3. VIGILANCE REQUIRED OF A COMMON CARRIER

l. It is bound to observe EXTRAORDINARY DILIGENCE

in the vigilance over the goods.
2. It is bound to observe EXTRAORDINARY DILIGENCE
for the safety of its passengers.

4. EXTRAORDINARY VIGILANCE OVER THE GOODS

Common carriers are responsible for the LOSS,

DESTRUCTION OR DETERIORATION of the goods unless the
same is due to any of the following causes:
l. Flood, storm, earthquake, lightning, or other natura!
disaster or calamity;
2. Act of the public enemy in war, whether international or
civii;
3. Act or omission of the shipper or owner of the goods;
4. The character of the goods or defects in the pac~ing or
in the containers;
5. Order or act of competent public authority.
 ~

SUCCESSION 129

DISCUSSION

1. CONCEPT ANO DEFINITION OF SUCCESSION

In the early stages of Roman Làw, the parents wete required
to declare before the Comitia Curiata who were'their ,heirs. Their
Chapter Xl sons and daughters, who were acknowledged as sui heredes or under
potestas, have the right to slÙI.ré fri'their estate. Testamentary and
intestate successions were already known to the Romans. As
SUCCESSION between these two kinds of successions, however, intestate
succession (ab intestato) was the primitive iilstitution.
From the concept of intestate succession, the concept of
testamentary succession grew. By then, the Romans considered it
IMPORTANT TOPICS IN THIS CHAPTER: a disgrace to die intestate. If only to avoid intestacy, there was a
l. Concept and definition of succession practice then to execute a testamerit called PER AES ET LIBRAM
under and by virtue of which, a person who is not an heir (SUUS
2. What inheritance includes HERES) or not a member of the family, was appointed as heir.
3. Kinds of succession The concept of succession in generai is the same both in Roman
4. What is a will? Law and under the New Civil Code. It means succeeding or entering
into the piace or property rights of another.
5. Characteristics of a will
Article 774 of the New Civil Code defines succession as: ~ '
6. Who can make a will? mode of aèquisitibn by virtue< of which the property, ·rights and
7. When is a person of sound mind? obligationstò thé exterit ortll,eValue. of the inheritanè.è~ of a. p&rson
a:re''tra:rlsmittei:fthtòug:fi his·death to another or othetsì·e'ith~r~~by
8. Wills allowed under the New Civil Code his will or by operation of law.."
9. Requisites of a valid will
Based on the said definition, succession has therefore the
10. Actual example of an attestation clause following elements: (l) lt is a mode ofacquisition; (2).Prope'rty rigl},ts
and oblig~tions .~~t ~P:~. ~~te11t of the yall1~ of the i~e~tanc~. ~~a
11. Actual example of an attestation clause where testator person are transmitted to. another; (3) The same are transm1tted
caused some other person to write his name
through death; ·and (4) ·Thè transnìissiori is either by'·Win:·o~by
12. Actual example of an acknowledgment of a will opert:ìti6h of law. ··
13. Qualifications of witnesses to notarial wills
2. WHAT INHERITANCE INCLUDES
14. A will can be revoked or altered in case of supplement or !l,
alteration Ìl The inheritance includes ali the property, rights and obliga-
'ti
15. In case of revocation tions of a person which are not extinguished by his death. (Art.
776, NCC) In other words, all property and transmissible rights
and obligations existing at the time of the death of a person,
t!':l including accession or those accruing therefrom, are included in
128 !J!· the inheritance of a person. (Art. 781, NCC)
130 INTRODUCTION TO LAW SUCCESSION 131

The rights to the succession are transmitted from the moment his death. Any waiver or restriction of this kind is voi d.
of the death of the decedent. (Art. 777, NCC) (Art. 828, NCC)
t.•~ 6. The will must be executed voluntarily and freely and
3. KINDS OF SUCCESSION without force, duress, fear or threat. The same are
grounds for the disallowance of the 'will. (See Art. 839,
l. ~stamentarySuccession NCC)
2. Legai or Intestate Succe~sion ' 6. WHO CAN MAKE A WILL?
3. >Mixed Succession
Ali persons who are not expressly prohibited by law can make
(a) Testamentary Succession;-- Succession which results a will (Art. 796, NCC). It is essential, however, that the testator
from the designation ~f an heir, made in a will must be of a sound mind at the time of the execution of the will
executed in the form prescribed by law. (Art. 779, (See Art. 798, NCC) and at least 18 years of age or over.. (See Art.
NCC) 797, NCC)
(b) Legal or. Intestate Succession - Succession pres-
cribed by operation of law and which takes piace if 7. WHEN IS A PERSON OF SOUND MINO?
a person dies without a will, or he has a will but
To be of sound mind, it is not necessary that the testator be
the same is void or has subsequently lost its validity. ·;
~f
in full possession of ali his reasoning faculties, or that his mind is
(Art. 780, NCC)
wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
4. WHAT IS A WILL?
It shall be sufficient if the testator was able at the time of
Autwill is an ~et wh~rel)y a, person is permitted, with the making the will to know the nature of, the estate to be disposed of,
form.alities pr~scribed by l~w, •to ..c;on,trol to ~· certain degreei the the proper objects of his bounty, and the character of the testa-
disposition ;of his estate, to take effect after his death. (Art•.783, mentary act. (Art. 799, NCC)
NCC)
8. WILLS ALLOWED UNDER THE NEW CIVIL CODE
5., CHARACTERISTICS OF A WILL l. Ordinary or Notarial Will;
l. A will must comply with the formalities of the law. ':! 2. Holographic Will.
:!
2. The making of a will is strictly a personal act and cannot Ordinary or Notarial Will - l t is a will which is attested
be left in whole or in part to the discretion of a third \r and acknowledged before a Notary Public.
Jf'l

person nor can it be accomplished through the ins- ..

. :f Holographic Will- It is a will which is entirely written,
;
trumentality of an agent or attorney. (See Art. 784, NCC) i
:t dated and signed by the hand of the testator himself. l t is subject
3. It is a formai act because there are legai formalities that ti to no other form and may be made in or out of the Philippines, and
should be complied with. (See Art. 783, NCC) need not be witnessed. (See Art. 810, NCC)

4. The will is effective only after the death of the testator.

(See Art. 777, NCC) j}: 9. REQUISITES OF A VALlO WILL
;i!!
•tfi l. lt must be in writing and executed in the language and
5. A will may be revoked by the testator at any time before
q~~ dialect known to the testator. (Art. 804, NCC)
132 INTRODUCTION TO LAW SUCCESSION 133

2. The will must be subscribed at the end thereof by the 10. ACTUAL EXAMPLE OF AN ATTESTATION CLAUSE
testator himself or by the testator's name written by some
other person in his presence and by his express direction. ATTESTATION CLAUSE
(Art. 805, NCC, opening par.)
3. The will must be attested and subscribed by three or This instrument consists of pages ihcluding this page,
more credible witnesses in the presence of the testator was on this __ day of , 20 _ , in the Municipality
and of one another. (last sentence of opening paragraph, of Province of , signed by the testator,
Art. 805, NCC) - - - - - - - - at the bottom of the instrument and at the
left-hand margin of each and every page thereof, in the presence of
4. The testator or the person required by him to write his ali and each of us, and thereupon, at his request, have witnessed
name and the instrumental witnesses of the will, shali and signed the will and ali pages thereof in the presence of the
also sign each and every page thereof, except the last, testator and of each other.
on the left margin.
5. Ali the pages shali be numbered correlatively in letters
placed on the upper part of each page. (See Art. 805,
(Name) (Address)
NCC)
6. . The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or cause some (Name) (Address)
other person to write under his express direction, in the
presence of the instrumental witnesses and ali the pages
thereof in the presence of the testator and of one another.
(Name) (Address)
7. If the attestation clause is in a language not known to
the witnesses, it shall be interpreted to them. The
attestation shall state: 11. ACTUAL EXAMPLE OF AN ATTESTATION CLAUSE WHERE
TESTATOR CAUSED SOME OTHER PERSON TO WRITE HIS
a. The number and pages used and upon which the '~
NAME
will is written;
b. That the testator signed (or expressly caused ATTESTATION CLAUSE
another person to sign) the will and evecy page
thereof in the presence of the instrumental wit- This instrument consists of _ _ pages including this page,
nesses; was on this ___ day of , 20_, in the Municipality
of Province of , announced and
c. That the instrumental witnesses witnessed and published to us by the testator to be his last will and
signed the will and ali the pages thereof in the testament, and said testator caused Mr. to writc
presence of the testator and of one another. his name, under his express direction at the bottom of said
instrument and the left-hand margin of each and every page thereof,
in the presence of all of us, and we thereupon, at the testator's
request, have witnessed and signed the will and all pages thereof
in the presence of the testator and of each other.
134 INTRODUCTION TO LAW SUCCESSION 135

Witnessed my hand and notarial seal at the piace and on the

(Name) (Address)
date first above-stated.

(Name) (Address) Notary Public

Until December 31,20 _ _

(Name) (Address)
(Seal and Documentary Stamp)
Doc. No. ____ ,
Page No. ____ ,
12. ACTUAL EXAMPLE OF AN ACKNOWLEDGMENT OF A WILL Book No. ____ ,
;f
Series of 20 ----.,...
2. ACKNOWLEDGMENT
13. QUALIFICATIONS OF WITNESSES TO NOTARIAL WILLS
Republic of the Philippines ) A witness to the execution of a notarial wili must be:
Province/City of ) s.s. (a) of sound mind;
At the Municipality/City of in said province, on (b) at least 18 years old;
this day of , 20_, personaliy appeared
the Testator , and his three (3) instrumental witnesses, (c) not blind;
to wit: ----------------------------' (d) able to read and write;
and , ali known to me to be the same persons
who executed and attested, respectively, the foregoing Last Will (e) domiciled in the Philippines;
and Testament, consisting of (_) pages, including (O must not have been convicted of falsification of a docu-
this one on which this acknowledgment is written, and they ali ment, perjury or false testimony.
acknowledged to me that the Testator signed the will and every
page thereof on the left margin in the presence of the Testator and
of one another, that ali the pages of said will are numbered A WILL CAN BE REVOKED OR ALTERED
correlatively in letters placed on the upper part of each page, and
that the attestation clause is in a language known to the IN CASE OF SUPPLEMENT OR ALTERATION
instrumental witnesses; they further acknowledged to me that the \
said wili and attestation are their own free and voluntary act and After the execution of a will, another will may be executed
deed. The Community Tax Certificates of the said Testator and three either to alter the same or to make an explanation or addition to
(3) instrumental witnesses were exhibited to me, to wit: the will already made. This will is called a codicil which is derived
_____ No. issued at on , 20 ___ from Latin "codex" and which means a little will.
_____ No. issued at on , 20 ___ In case of conflict between a will and a codicil, the latter
prevails because it expresses the last will and wish of the testator.
_____ No. issued at on , 20 ___
A codicil shall be executed as in the case of a wili. (Art. 826,
_ _ _ _ No. issued at on , 20 ___ NCC)
136 INTRODUCTION TO LAW

IN CASE OF REVOCATION
A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right is void. (Art. 828, NCC)
However, no will shall be revoked except in the following cases:
Chapter Xli
l. By implication of law; or
2. By some will, codici! or other writing executed as provided
in case of wills; or TORTS ANO DAMAGES
3. By burning, tearing, cancelling, or obliterating the will
with the intention of revoking it, by the testator himself,
or by some other person in his presence, and by his IMPORTANT TOPICS IN THIS CHAPTER:
express direction. lfburned, torn, cancelled, or obliterated
by some other pe~son, without the express direction of l. Definition of a quasi-delict
the testator, the will may stili be established, and the 2. Requisites of a quasi-delict
estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized 3. Quasi-delict is a civil wrong
destruction, cancellation, or obliteration are established 4. The act or omission must be without intent to cause
according to the Rules of Court. (Art. 830, NCC) damage
5. If there is no intention to cause damage
6. Distinctions
(a) Culpa contractual
(b) Culpa aquiliana
(c) Culpa criminal
7. · What is negligence?
8. What is the test to determine negligence?
9. Degree of care of negligence that is required
10. What are the defenses that can be interposed in quasi-
delict?
i'.
(t'
(a) Last clear chance
~i!;:
,,
(b) Contributory negligence
(c). Proximate cause of the loss or injury is the negli-
gence of plaintiff

137
q
 ~f-

138 INTRODUCTION TO LAW TORTS AND DAMAGES 139

(d) Defense of due diligence in the selection and 2. REQUISITES OF A QUASI-DELICT

supervision of employees This article states the requisites of a quasi-delict, to wit:
(e) Assumption of risk (a) There must be an act or omission;
(f) Prescription (b) Such act or omission causes damage to another;
(g) Force majeure
(c) Such act or omission is caused by fault or negligence;
(h) Fault of engineer, architect or contractor
(d) There is no pre-existing contractual relation between the
11. Old cases parties.
(a) Picart vs. Smith, 37 Phil. 813
(b) Umali vs. Bacani, 69 SCRA 263 3. QUASI-DELICT IS A CIVIL WRONG

(c) Culion Ice, Fish, etc. vs. Philippine Motors, 55 Phil. A quasi-delict is a civil wrong, not a crime, because it is not
129 caused by an intentional or malicious act, but by mere fault or
negligence.
(d) Cangco vs. Manila Railroad, 38 Phil. 768
It is independent of contract because if the said act or omission
12. New cases
is in violation of a contract, then the result would be that there is
(a) Philippine Long Distance Telephone Company, Inc. a mere breach of contract.
vs. Court of Appeals, G.R. No. 57079, September 29,
1989
4. THE ACT OR OMISSION MUST BE WITHOUT INTENT TO
(b) Phoenix Construction, Inc. vs. Intermediate CAUSE DAMAGE
Appellate Court, G.R. No. 65295, March 10, 1987
The act or omission must be without intent to cause damage
(c) Vergara vs. Court of Appeals, G.R. No. 77679,
because if there is intent to cause damage, the act or omission
September 30, 1987
becomes a crime. In such a case, the civil liability for such act or
(d) Radio Communication of the Philippines, Inc. vs. omission will be governed by the Revised Penai Code which provides
Court of Appeals, G.R. No. 79525, March 13, 1991 as follows:
(e) St. Francis High School, et al. vs. Court of Appeals,
G.R. No. 82465, February 25, 1991 "Art. 1161. CIVIL OBLIGATIONS ARISING FROM
CRIMINAL OFFENSES SHALL BE GOVERNED BY THE
PENAL LAWS, SUBJECT TO THE PROVISIONS OF ART.
DISCUSSION 2177, AND THE PERTINENT PROVISIONS OF CHAPTER 2,
!'
ih
PRELIMINARY TITLE, ON HUMAN RELATIONS, AND OF
1. DEFINITION OF A QUASI-DELICT TITLE XVIII OF THIS BOOK, REGULATING DAMAGES."
Article 2176 of the New Civil Code defines a quasi-delict in
this manner: ''Whoever by act or omission causes damage to another, 5. IF THERE IS NO INTENTION TO CAUSE DAMAGE
there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual If the act or omission that caused the damage was committed
relation between the parties, is called a quasi-delict and is governed unintentionally, it is fault or culpa. Otherwis~; it is dolo, an act
by the provisions of this chapter." that becomes a crime.
140 INTRODUCTION TO LAW TORTS AND DAMAGES 141

6. DISTINCTIONS Based on this definition, the degree of care, precaution and

vigilance that should be observed depends on the circumstances of
persons, piace and time. That which may ·be considered therefore
CULPA CULPA AQUILIANA l CULPA CRIMINAL
as sufficient care and precaution in a set of circumstances, may be
CONTRACTUAL
insufficient in another set of circumstances that confront the same
individuai.
(a) There is a pre- (a) There is no p re-~ (a) There is no pre-
existing obligation existing obligation. existing obligation. Hence, when A drives his car in a thickly populated place like
(express or im- Divisoria or Quiapo, he should know, even without being told, that
plied).
during day time, there are not only plenty of people who cross the
(b) Preponderance of (b) Preponderance of (b) The crime must be streets but that there are also a lot of cars, jeepneys, buses, carts
evidence is re- evidence is needed. proven beyond rea- and delivery panels in both sides of the streets. Under the
quired. sonable doubt.
circumstances, A should observe a higher degree of care and
(c) Defense of a good (c) Defense of a good l(c) This defense can " precaution because if he does not observe this, there is not only a
father of a family father of a family in not be interposed. If great possibility but also a great danger that he will hit or injure a
in the selection of the selection of the the employee is 1
insolvent or incap- pedestrian, or that he will bump or hit another vehicle.
the employees is employees is a pro- h
not a proper and per defense of the able to pay the civil f
A may not be driving his car but a PUB (public utility bus)
complete defense employer. aspect or liability, with one hundred passengers from Manila to Baguio. Here, he will
of the employer. the employer is
subsidiarily liable. not pass through Divisoria or Quiapo but he will pass through a
long highway where vehicles travel at a fast speed, until he reached
the dangerous Kennon road, going to Baguio City. Here, he is
(d) The existence of a (d) The fault or negli- (d) The innocence of employed as a driver of a public utility bus which is engaged in
contract must be gence of the de- the accused is pre-
proved. If it is also fend~nt must be sumed until the the business of transporting passengers, and therefore, the degree
proven that the proven. contrary is proved. of care and diligence required of the carrier is extraordinary
contract was not diligence, as required by Articles 1733 and 1755 of the New Civil
complied with, it Code.
is presumed that
the debtor is at
fault. "Art. 1733. COMMON CARRIERS, FROM THE
NATURE OF THEIR BUSINESS AND FOR REASONS OF
(e) Negligence is only (e) Negligence is direct, l(e) Negligence is direct, PUBLIC POLICY, ARE BOUND TO OBSERVE EXTRA-
incidental to the substantive and in- substantive and in-
ORDINARY DILIGENCE IN THE VIGILANCE OVER THE
performance of an dependent. dependent.
existing obligation GOODS AND FOR THE SAFETY OF Tl:JE PASSENGERS
based on a con- TRANSPORTED BY THEM, ACCORDING TO ALL THE
tract. CIRCUMSTANCES OF EACH CASE.
SUCH EXTRAORDINARY DILIGENCE IN VIGILANCE
7. WHAT IS NEGLIGENCE? OVER THE GOODS IS FURTHER EXPRESSED IN
ARTICLES 1734, 1735,AND 1745, NOS. 5, 6,AND 7, WHILE
Article 1173 of the New Civil Code defines negligence as the THE EXTRAORDINARY DILIGENCE FOR THE SAFETY OF
omission of that diligence which is required by the circumstances THE PASSENGERS IS FURTHER SET FORTH IN
of persons, place and time. ARTICLES 1755 AND 1756."
142 INTRODUCTION TO LAW
"Art. 1755. A COMMON CARRIER IS BOUND TO
CARRY THE PASSENGERS SAFELY AS FAR AS HUMAN
CARE AND FORESIGHT CAN PROVIDE, USING THE
UTMOST DILIGENCE OF VERY CAUTIOUS PERSONS,
WITH A DUE REGARD FOR ALL THE CIRCUMSTANCES."
Take note that as provided in Artide 1733, common carriers
"are bound to observe extraordinary diligence" x x x "according to
all circumstances of each case," and as provided in Artide 1755,
the common carrier "is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence
of very cautious persons, with a due regard for all the circums-
tances."
The Supreme Court has therefore defined negligence in this
manner:
"Negligence is want of care required by the circums-
tances. It is a relative or comparative, not an absolute term,
and its application depends upon the situation of the parties
and the degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree
of care is necessary, and the failure to observe is a want of
ordinary care under the circumstances." (Corliss vs. Manila
Railroad Co., L-21291, March 28, 1969)
8. WHAT IS THE TEST TO DETERMINE NEGLIGENCE?
The test is this: Would a prudent man (in his position) foresee
harm to the person injured as a reasonable consequence of the
course about to be pursued? If so, the law imposes a duty on the
actor to refrain from that course, or to take precaution against its
mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed constitutive fact of
negligence. (Picart vs. Smith, 37 Phil. 809)
9. DEGREE OF CARE OF NEGLIGENCE THAT IS REQUIRED
That standard or degree of care or diligence that should be
observed is that which is expected of a good father of a family unless
the law or stipulation of the parties requires another standard of
care.
TORTS AND DAMAGES 143
10. WHAT ARE THE DEFENSES THAT CAN BE INTERPOSED IN
QUASI-DELICT?
In the string of cases that have already been decided by the
Supreme Court, the following defenses have been interposed and
were considered meritorious, to wit:
(l) LAST CLEAR CHANCE - In Picart vs. Smith, the
plaintiff who was riding a poney was originally a t faults
he being in the wrong side of the bridge, but defendant
Smith had the last clear chance to avoid the impending
harm by merely swerving. Since he failed to do this, it
was he who was held liable for damages.
(2) CONTRIBUTORY NEGLIGENCE - The defendant
may daim that plaintiff's own negligence contributed to
his injury. This defense, however, will merely mitigate
the award of damages. In the Phoenix case, the driver of
the car was on his way home after taking a shot or two
of liquor but his negligence is merely contributory and
the damages therefore were mitigated.
(3) PRO:XIMATE CAUSE OF THE LOSS OR INJURY IS
THE NEGLIGENCE OF PLAINTIFF- In the Phoenix
case, the Supreme Court held that both parties were
negligent but the immediate and proximate cause of the
accident and ofthe car driver's injuries was the wrongful
and negligent manner in which the truck was parked or
the truck driver's "lack of due care."
(4) · DEFENSE OF DUE DILIGENCE IN THE SELEC-
TION AND SUPERVISION OF EMPLOYEES- This
is available as a defense only in culpa aquiliana but not
in the case of culpa contractual.
(5) ASSUMPTION OF RISK- The defense was allowed
in Afialda vs. Hilsole, et al. (85 Phil. 67) but rejected in
Ilocos Norte Electric Company vs. Court of Appeals. The
maxim "volente non fit injuria" relied upon by petitioner
finds no application in the latter case. The court's
reasoning is as follows: "It is imperative to note the
surrounding circumstances which impelled the deceased
to leave thé comforts of a roof and brave the subsiding
typhoon. The deceased was on her way to her grocery
store to see to it that the goods were not flooded. As such,
144 INTRODUCTION TO LAW
can she be punished for exercising her right to protect
her property from the floods by imputing upon her the
unfavorable presumption that she assumed the risk of
personal injury? Definitely not."
(6) PRESCRIPTION - A motion may be filed on the
ground that the action (based on quasi-delict) has already
prescribed. This is based on the provision of Artide 1146
ofthe New Civil Code which provides, "following actions
must be instituted within four years."
(7) FORCE MAJEURE - This is a defense that can be
interposed by the possessor or user of the animai under
Artide 2183.
(8) FAULT OF ENGINEER, ARCHITECT OR CON-
TRACTOR - This defense can be interposed by the
owner of the building if third persons suffer damages
because of defect in construction committed either by the
engineer, contractor or architect.
11. OLD CASES
PICART VS. SMITH
37 PHIL. 813
Principle: "WHERE BOTH PARTIES ARE GUILTY OF
NEGLIGENCE, BUT THE NEGLIGENT ACT
OF ONE SUCCEEDS THAT OF THE OTHER
BY AN APPRECIABLE INTERVAL OF TIME,
THE ONE WHO HAS THE LAST REASON-
ABLE OPPORTUNITY TO AVOID THE
IMPENDING HARM AND HAS TO DO SO
IS CHARGEABLE WITH THE CONSE-
QUENCES, WITHOUT REFERENCE TO
THE PRIOR NEGLIGENCE OF THE OTHER
PARTY."
FACTS: Plaintiff Picart was riding a pony on a bridge. He
saw an approaching automobile and he improperly pulled his horse
over to the railing in the right, the wrong side of the bridge. The
driver of the automobile sounded his horn but Picart made no move
to go to the right side. He guided his car to the right without
TORTS AND DAMAGES 146
diminution of speed until he was only a few feet away. He turned
to the right but passed so dosely to the horse that the latter being
frightened, jumped around and was killed by the passing car.
Picart was thrown off his horse and suffered contusions. He
sued Smith for the value of his animai, medicai expense and damage
to his apparel.
ISSUE: Who is at fault?
HELD: Plaintiff Picart was originally a t fault but d~fendant
Smith had the last dear chance to avoid the impending harm by
merely swerving. Smith failed to do this and he should therefore
be chargeable for the consequence of his acts, without reference to
the prior negligence of the other party.
UMALI VS. BACANI
69 SCRA263
THE TEST TO DETERMINE THE EXIST-
Principle:
ENCE OF NEGLIGENCE, AS ENUNCIATED
IN PICART VS. SMITH IS THIS: "DID THE
DEFENDANT IN DOING THE ALLEGED
NEGLIGENT ACT USE THAT REASONABLE
CARE AND CAUTION WHICH AN ORDI-
NARILY PRUDENT PERSON WOULD HAVE
USED IN THE SAME SITUATION? IF NOT,
THEN HE IS GUILTY OF NEGLIGENCE."
IN THIS CASE, THE COURT FOUND OUT
THAT A SERIES OF NEGLIGENCE WERE
COM~TTED BY THE DEFENDANT AND
HIS E PLOYEES.
FACTS: As a result a strong typhoon that hit Alcala,
Pangasinan on May 14, 1972, Banana plants near Alcala Electric
Plant fell on the electric wire which caused it to be cut. One end of
the wire was left hanging on the electric post and the other fell on
the ground under the fallen banana plants. Knowing this, the
Barangay Captain told an employee of the electric plant about it
.and asked him to fix it. Manuel Saynes, a boy living nearby, got in
contact with the live cut wire which led to his death. Fidel Saynes,
father of Manuel Saynes, filed an action for damages against
Teodoro Umali, owner and manager of the electric plant.
146 INTRODUCTION TO LAW
UMALI'S CONTENTION: The death of Manuel is due to a
fortuitous event (referring to the strong storm that caused the
banana plants to fall and cut the electric wire).
ISSUE: Is the owner of the electric plant liable for damages?
HELD: Umali was held liable for damages. The employees of
Alcala Electric Plant were already aware of the possible damage
caused by the storm to the electric lines which is dangerous to life
and property, but they did not cut off from the plant the flow of
electricity along the lines. They could have done this pending
inspection of the wires. Likewise, they did not take the necessary
precaution to eliminate the source of danger to the electric line,
knowing that all banana plants were standing on elevated ground
and which are higher than the electric post. The court also took
note of Cipriano Baldomero's negligence. He, being an employee of
the electric plant and aware of the live cut wire, did not take the
necessary precaution to prevent anybody from approaching the
pl ace.
CULION ICE, FISH, ETC.
VS. PHILIPPINE MOTORS
55 PHIL. 129
. Principle: WHEN A PERSON HOLDS HIMSELF OUT
AS BEING COMPETENT TO DO THINGS,
HE WILL BE HELD LIABLE FOR NEG-
LIGENCE IF HE FAILS TO EXHIBIT THE
CARE AND SKILL OF THE ONE ORDI-
NARILY SKILLED IN THE PARTICULAR
WORK WHICH HE ATTEMPTS TO DO.
FACTS: The manager of defendant corporation accepted the
job of changing the gasoline engine of plaintiff's boat. After
installing a new fuel tank and a new carburetor, the boat was taken
out for trial. During this period, a back fire occurred in the cylinder
of the engine. The boat was ultimately destroyed. Plaintiff filed an
action to recover the value of the boat from the defendant.
ISSUE: Is that fire an avoidable accident? Who is negligent?
HELD: The burning of the boat resulted from an accident but
this accident was in no sense an unavoidable accident. It should
TORTS AND DAMAGES 147
not have occurred if he observed the care and skill of one ordinarily
skilled in the particular work which he attempts to do. When a
person holds himself out as being competent to do things, he will
be held liable for negligence if he fails to exhibit the care and skill
of one ordinarily skilled in the particular work which he attempts
to do. The defendant was held liable for the value. of the vessel.
CANGCO VS. MANILA RAILROAD
38 PHIL. 768
Principle: IF A PRUDENT MAN COULD FORESEE
HARM AS A RESULT OF THE COURSE
HE WILL ACTUALLY PURSUE, IT IS HIS
DUTY TO GUARD AGAINST THE CONSE-
QUENCES OF HIS ACTS.
FACTS: Plaintiffis residing in San Mateo, Rizal, and he used
to ride on defendant's train because of a pass supplied by the
company. He was about to alight from the train but his feet carne
in contact with a sack of watermelons, and his feet slipped from
under him and he fell violently. His body rolled from the platform
and was drawn under the moving car, where his right arm was
badly crushed and lacerated. Plaintiff sued defendant for damages.
The defendant contends, among others, that the said accident would
not have happened had plaintiff waited until the train carne to a
full stop.
ISSUE: Is said contention tenable?
Therè is a breach of contract of carriage and MRR failed to
exercise due care in not providing for safe exit of passengers. The
watermelons are in the platform where they shouldn't be placed,
rather they should have been removed from the platform.
HELD: The plaintiff may have assumed the risk from boarding
the car under a condition open to his view but it is not fair for him
to assume the risk that the motorman, knowing the existence of
such a situation, will increase his perii by accelerating his speed
before he is planted safely in the platform. Reasonable men give
their conduct by the circumstances which are before them or known
to them. The situation, as aforementioned, is known to the
motorman but he failed to take the precaution which is required of
u prudent and reasonable man in a given situation. The defendant
was held liable for damages.
148 INTRODUCTION TO LAW
12. NEW CASES
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY, INC. VS. COURT OF APPEALS
G.R. NO. 57079, SEPTEMBER 29, 1989
Principle: THE VICTIM IS SOLELY RESPONSIBLE
FOR THE CONSEQUENCE OF HIS
IMPRUDENCE. HE HAD THE LAST CLEAR
CHANCE OR OPPORTUNITY TO AVOID
THE ACCIDENT, NOTWITHSTANDING THE
NEGLIGENCE HE IMPUTES TO PLDT FOR
LEAVING AN OPEN TRENCH UNCOVERED.
ANTONIO'S NEGLIGENCE IS NOT MERELY CONTRI-
BUTORY BUT GOES TO THE VERY CAUSE OF THE OCCUR-
RENCE OF THE ACCIDENT, AND WHICH PRECLUDES HIM
TO RECOVER DAMAGES.
FACTS: Antonio sued PLDT for the injuries he sustained when
his jeep ran over a- mound of earth and fell into an open trench, an
excavation allegedly undertaken by PLDT for the installation of
its underground conduit system.
The complaint alleged that Antonio failed to notice the open
trench which was left uncovered because of the creeping darkness
and the lack of any warning light signs.
Antonio was on the inside lane before it swerved to hit the
"accident mound."
Antonio is familiar not only of the street but also of the
excavations onthe street as it appears that he passes on that street
almost everyday.
ISSUE: Is Antonio guilty of contributory negligence, and if
so, does this merely mitigate the damages he is claiming, or does
this preclude his right to recover damages?
HELD: The negligence of Antonio was not only contributory
to his injuries but goes to the very cause of the occurrence of the
accident, as one of its determining factors, and thereby precludes
his right to recover damages. The perils of the road were known to
and hence assumed by Antonio. By exercising reasonable care and
prudence, he could have avoided the injuries, even assuming that
there was some alleged negligence on the part of PLDT.
TORTS AND DAMAGES 149
The warning signs could not have completely prevented the
accident. The only purpose of said signs was to inform and warn
the public of the presence of excavations on the site. Antonio already
knew of the presence of said excavations. It was not the lack of
knowledge of these excavations which caused the jeep to fall into
the excavation but the unexplained sudden swerving of the jeep
from the inside lane towards the accident mound. He cannot charge
PLDT for his injuries where his own failure to exercise due and
reasonable care was the cause thereof.
It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection.
Antonio had the last clear chance or opportunity to avoid the
accident, notwithstanding the negligence he imputes to PLDT. As
a resident of Lacson Street, he passed on that street almost every
day and had knowledge of the presence and location of the
excavations there. His negligence exposed him to danger. Hence,
he is solely responsible for the consequence of his imprudence.
PHOENIX CONSTRUCTION, INC.
VS. INT. APPELLATE COURT
G.R. NO. 65295, MARCH 10, 1987
Principle: THE VICTIM, THE DRIVER OF THE CAR,
AND THE DUMP TRUCK OWNED BY
PHOENIX, INC. ARE BOTH NEGLIGENT
BUT THE IMMEDIATE CAUSE OF THE
VICTIM'S INJURY WAS THE WRONGFUL
AND NEGLIGENT MANNER IN WHICH
THE TRUCK WAS PARKED OR THE TRUCK
DRIVER'S LACK OF DUE CARE.
FACTS: After a dinner cocktail meeting with his boss where
he had taken a shot or two of liquor, A went home at about 1:30
A.M., driving his car. On his way home after crossing an
intersection, his car headlights suddenly failed. He switched his
headlights to "bright," and there, he saw a ford dump truck which
is about 2 112 meters away from his car.
The dump truck is owned by Phoenix, Inc. It was parked on
the right hand side of the street, facing the incoming traffic. It
partially blocks the way of the incoming traffic. It has no lights
and no early warning devices.
150 INTRODUCTION TO LAW
A tried to avoid a collision by swerving his car to the left but
to no avail. His car smashed into the dump truck. As a result, A
suffered physical injuries, facial scars, nervous breakdown and loss
of two gold bridge dentures. A sued Phoenix and its driver.
A'S CONTENTION - The legal and proximate cause of his
injuries was the negligent manner in which Phoenix driver had
parked the dump truck.
HELD: ON THE ISSUE OF NEGLIGENCE AND
PROXIMATE CAUSE OF INJURY-
Both were negligent but the immediate and proximate cause
of the accident and of lù injuries was the wrongful and negligent
manner in which the truck was parked or the truck driver's "lack
of due care."
The collision of .N.s car with the dump truck is a natural and
foreseeable consequence of the truck driver's negligence. The
negligence of the truck driver, far from being a "passive and static
condition" was rather an indispensable and efficient cause.
The improper parking of the dump truck created an unreason-
able risk of injury for anyone driving, and for having created this
risk, the truck driver must be held responsible.
.N.s negligence, although later in point of time than the truck
driver's negligence, is merely contributory and the damages
therefore that he will recover is subject to mitigation by the courts,
in accordance with Artide 2179 of the Civil Code.
ON THE ISSUE OF DAMAGES - In a suit for damages
arising from a quasi-delict where the plaintiff's negligence was
contributory, the demands of substantial justice may be satisfied
by allocating most of the damages on a 20-80 ratio.
Based on this, the following were awarded:
(l) 20% ofthe damages awarded by the appellate court shall
be borne by the plaintiff;
(2) 80% shall be paid by the driver and his employer who
shall be solidarily liable to A;
(3) The award of exemplary damages shall be borne
exclusively by the defendant Phoenix.
TORTS AND DAMAGES 151
ON THE HISTORICAL FUNCTION OF THE LAST
CLEAR CHANCE DOCTRINE
The last clear chance doctrine of the common law was imported
into our jurisdiction, but it is a matter of debate whether, to what
extent, it has found its way into the Civil Code of the Philippines.
The historical function of the doctrine in the common law was to
mitigate the harassness of another common law doctrine - that of
contributory negligence. (Phoenix Construction, !ne. vs. Intermediate
Appellate Court, Ibid.)
VERGARA VS. COURT OF APPEALS
G.R. NO. 77679, SEPTEMBER 30, 1987
Principle: THE OWNER OF THE CAR CANNOT BE
FAULTED BECAUSE HE LOST CONTROL
OF HIS CAR WHEN IN ORDER TO AVO ID A
HEAD-ON COLLISION WITH A PASSENGER
BUS WHICH SUDDENLY SWERVED INTO
HIS LANE, HE VEERED HIS CAR TO THE
SHOULDER OF THE HIGHWAY AND
COLLIDED WITH A PRIVATE JEEP.
FACTS: A and his friend were travelling by car to Manila
from Baguio. From the opposite direction, the following were
travelling: a tricycle, a passenger bus, a private jeep in that order.
The bus tried to overtake the tricycle but in doing so, it swerved
into the làne of A. This prompted A to veer his car to the shoulder
of the highway to avoid a head-on collision. A, however, lost control
of his car causing it to collide with a private jeep. No charges were
filed against the owner of the passenger bus. A became the accused
in a criminal case of reckless imprudence resulting to damage to
property and multiple physical injuries. A claimed that he is not
guilty of criminal negligence because he lost control of his car when
the bus swerved into his lane.
ISSUE: Is the defense of A tenable?
HELD: The owner of the car cannot be faulted because he
lost control of his car when in order to avoid a head-on collision
with a passenger bus which suddenly swerved into his lane, he
veered his car to the shoulder of the highway and collided with a
private jeep.
152 INTRODUCTION TO LAW TORTS AND DAMAGES 153

The real culprit is the passenger bus but there were no charges
that were filed. The court held that although A was not criminally
negligent, and therefore not held liable for a crime, there is enough
evidence to prove that A should havè exercised a little more caution
and discretion in reacting to the treat of a head-on collision. For
this reason, he was adjudged civilly liable for the hospital expenses
and unearned salaries of the victims.
RADIO COMMUNICATION OF THE PHIÌ..IPPINES, INC.
VS. COURT OF APPEALS
G.R. NO. 79528, MARCH 13, 1991
Principle: RCPI'S CLAIM OF GOOD FAITH PREDI-
CATED ON THE EXHAUSTION OF SOCIAL
CONDOLENCE FORMS IS OF NO MOMENT.
GROSS NEGLIGENCE AND CARELESS-
NESS CAN BE ATTRIBUTED TO DEFEN-
DANT IN NOT SUPPLYING ITS STATIONS
WITH ADEQUATE SOCIAL CONDOLENCE
FORMS.
FACTS: Minerva and Flores Timan sent a telegram of
condolence to their cousins, Mr. and Mrs. Hilario Medoranda
through Radio Communication of the Philippines, Inc. (RCPI), to
convey their deepest sympathy for the death of the mother-in-law
of Hilario, to wit:
"Mr. and Mrs. Hilario Medoranda
(l
l is flimsy and unacceptable.
1ìinidad, Calbayog
May God give you courage and strength to bear your loss,
our deepest sympathy to you and members of the family.
MINER & FLORY''
The condolence telegram was correctly transmitted as far as
the written text was concerned. However, the condolence message
as communicated and delivered to the addressee was typewritten
on a "HAPPY BIRTHDAY" card and placed inside a "CHRISTMAS-
GRAM" envelope.
Believing that the transmittal of the aforesaid telegram in
that manner was done intentionally and with gross breach of
contract resulting in ridicule, contempt, and humiliation of the
private respondents and the addressees, including their friends and
relatives, the Spouses Timan demanded an explanation.
The Timans were not satisfied with the explanation of RCPI,
hence, their complaint for damages against RCPI.
The trial court decided in favor of the Timans, and the Court
of Appeals affirmed the decision of the lower court in toto.
RCPI argued that it stili correctly transmitted the text of the
telegram and was received by the addressee on time despite the
fact that there was error in the social form and envelope used.
RCPI asserted that there was no showing that it has any
motive to cause harm or damage to the Timans.
ISSUE: Is RCPI guilty of negligence? Is RCPI guilty of bad
faith, fraud and malice?
HELD: Anyone who avails of the facilities of a telegram
company can choose to send his message in the ordinary form or in
a social form. In the ordinary form, the text of the message is
delivered in an envelope matching the purpose of the occasion and
the words and intent of the message. The sender pays a higher
amount for the social telegram than for ordinary form. Hence, when
RCPI typed the message of condolence in a birthday card and
delivered the same in a colorful Christmas gram envelope, it
committed a breach of contract as well as gross negligence. It's
excuse tliat i t had run out of social condolence cards and envelope
It could not have been faulted had it delivered the message in
the ordinary form and reimbursed the difference in the cost to the
sender. But by transmitting it unfittingly, through other special
forms, clearly, albeit outwardly, portraying the opposite feelings of
joy arid happiness and thanksgiving, RCPI only exacerbated the
sorrowful situation of the addressee and senders. This botchery
exposed not only RCPI's gross negligence but also its callousness
and disregard for the sentiments of its clientele, which is
tantamount to wanton misconduct, for which it must be held liable
for damages.
It is not surprising that when the Timans' telegraphic message
reached their cousin, it became the joke of the Medorandas' friends,
154 INTRODUCTION TO LAW
relatives, and associates who thought that the unpardonable mix-
up was a mockery of the death of the mother-in-law of the sender's
cousin. Thus, it was not unexpected that because of this unusual
incident, which caused much embarrassment and distress to
Timans, he suffered nervousness and hypertension resulting in his
confinement for three days at the hospital.
Under the circumstances, defendant's plea of good faith
predicated on the exhaustion of social condolence forms cannot be
accepted. Gross negligence or carelessness can be attributed to
defendant in not supplying its various stations with such sufficient
and adequate social condolence forms when it held out to the public
the availability of such social condolence forms and accepted for a
fee the transmission of message on said forms. Knowing that there
are no such forms as testified to by its material control manager,
and entering into a contract for the transmission of message in
such forms as testified to by its material control manager, and
entering into a contract for the transmission of message in such
forms, defendant committed acts of bad faith, fraud and malice.
ST. FRANCIS HIGH SCHOOL, ET AL. VS. COURT OF
APPEALS
G.R. NO. 82465, FEBRUARY 25, 1991
Principle: THE SCHOOLAND THE TEACHERSARE NOT
NEGLIGENT. THE INCIDENT HAPPENED
NOT IN THE SCHOOLAND NOT IN ASCHOOL
DAY, AND WHILE THE TEACHERS AND THE
STUDENTS WERE HOLDING A PURELY
PRNATE AFFAIR, A PICNIC.
THE CLASS ADVISER OF THE CLASS
WHERE FERDINAND BELONGED, DID HER
BEST AND EXERCISED DILIGENCE OF A
GOOD FATHER OF A FAMILY TO PREVENT
ANY UNTOWARD INCIDENT OR DAMAGES
TO ALL STUDENTS.
FACTS: Ferdinand Castillo is a 13-year-old first year high
school student at St. Francis High School. He wanted to join a school
picnic a t ·a beach but he was not allowed by his parents. He was
allowed, however, to bring food to the teachers and to return home
TORTS AND DAMAGES 155
after doing so. Nevertheless, Ferdinand went on with the teachers
to the beach because of their persuasion.
While the teachers and the students were in the water,
including Ferdinand, one of the female teachers wJ:to was apparently
drowning, was rescued by Ferdinand. Unfortunately, it was Ferdi-
nand himself who drowned.
The school and the teachers were sued for damages by
Ferdinand's parents. They contended that the defendants failed to
exercise the proper diligence of a good father of a family in
preventing their son's drowning, and prayed for actual, moral and
exemplary damages, attorney's fees and costs of suit.
The trial court rendered judgment against the teachers,
ordering all ofthem to pay plaintiffs P30,000.00 as actual damages,
P20,000.00 as moral damages, P15,000.00 as attorney's fees and to
pay the costs. The case against the school, however, was dismissed.
The Court of Appeals ruled that the school and the teachers
are guilty of negligence and therefore liable for the death of
Ferdinand.
ISSUE: (l) Are defendants guilty of negligence?
(2) Is Artide 2180 applicable to this case?
(3) Is the award of exemplary and moral damages
proper?
HELD: ON THE ISSUE OF NEGLIGENCE - The school
and the teachers are not guilty of negligence. In the case at bar,
the teachers/petitioners were not in the actual performance of their
assigned tasks. The incident happened not within the school
premises, not on a school day, and most importantly, while the
teachers and students were holding a purely private affair, a picnic.
The incident happened while some members of the class of the
school were having a picnic at the beach. The picnic had no permit
from the school head or its principal because this .picnic was not a
school-sanctioned activity neither is it considered as an extra-
curricular activity.
Mere knowledge by petitioner/principal of the planning of the
picnic by the students and their teachers does not in any way show
acquiescence or consent to the holding of the same. The application
therefore of Artide 2180 has no basis in law and neither is it
supported by any jurisprudence. If we were to affirm the findings
156 INTRODUCTION TO LAW

of the appellate court on this score, employers will forever be

exposed to the risk and danger of being hailed to Court to answer
for the misdeeds or omissions of the employees even if such act or
omission be committed while they were not in the performance of Chapter Xlii
their duties.
No negligence could be attributable to the teachers to warrant
the award of damages to Ferdinand's parents. The class adviser of POLITICAL LAW ANO THE CONSTITUTION
the class where Ferdinand belonged did her best and exercised OF THE REPUBLIC OF THE PHILIPPINES
diligence of a good father of a family to prevent any untoward
incident or damages to ali the students who joined the picnic. In
fact, she invited the P.E. instructors and scout masters who have PARTI
knowledge in first-aid application and swimming. Moreover, the BASIC PRINCIPLES ANO DEFINITIONS
petitioners brought life savers in case of emergency. Petitioners did
ali what is humanly possible to save the child.
IMPORTANT TOPICS IN THIS CHAPTER:
1t was held that the Court of Appeals committed an error in
applying Artide 2180 ofthe Civil Code in rendering the schoolliable l. Definition
for the death of Ferdinand. (a) Politica! Law
ONTHE ISSUE OF AWARDING MORAL OREXEMPLARY (b) Philippine Politica! Law
DAMAGES- No moral or exemplary damages may be awarded in
favor ofFerdinand's parents. The case does not fali under any ofthe (c) Administrative Law
grounds to grant moral damages. Petitioners are not guilty of any (d) Election Law
fault or negligence. Hence, no moral damages can be assessed against
them. (e) Law of Public Officers

While it is true that Ferdinand's parents gave their consent (f) Law on Municipal Corporations
to their son to join the picnic, this does not mean that petitioners
were already relieved of their duty to observe the required diligence PART Il
of a good father of a family in ensuring the safety of the children.
But here, petitioners were able to prove that they had exercised THE 1987 CONSTITUTION
that required diligence. Hence, the claim for moral or exemplary
damages becomes baseless. IMPORTANT TOPICS IN THIS CHAPTER:
MAJORITY OPINION- The majority opinion holds the l. Constitution
view that the teachers involved were not in the actual performance
of their assigned tasks, hence, any act or omission caused by them (a) What is Constitution?
cannot bind their employer, St. Francis High School. 2. Basic principles of Constitution
DISSENTING OPINION - Justice Padilla dissented. He (a) The Constitution is the supreme law of the land
maintained that although the excursion may not have been attended
by the appropriate school authorities, the presence or stamp of (b) Being the supreme law of the land, it is the symbol
authority of the school nevertheless pervaded by reason of the and monument of the people's wili
participation of not one but of several teachers.
157
158 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 159
OF THE REPUBLIC OF THE PHILIPPINES

(c) The Constitution outlines the infrastructure of the 3. Search and Seizure
government (a) Simplification
(d) The Constitution must be obeyed by ali (b) Probable Cause
(e) The courts are the ultimate guardians ofthe Consti- (b.l) Basis
tution
(b.2) Requirements in determining the existence
3. Classifications of the Constitution and its definition of probable cause
(a) Written or rigid (b.3) Valid warrantless search and seizure
(b) Conventional or cumulative 4. Privacy of Communications and Correspondence
(c) Rigid or flexible
(a) Generai rule and exceptions
4. Qualities and essential parts of a good written Consti-
(b) Coverage of the guarantee
tution
5. The 1987 Constitution may be changed (b. l) Tangible objects
(b.2) Intangible objects
PART 111 5. Freedom of Speech and of the Press
BILL OF RIGHTS
(a) Meaning of Freedom of Speech and of the Press
(b) What are included in the Freedom of Expression
IMPORTANT TOPICS IN THIS CHAPTER:
(c) What are included in the terms "speech" and
l. Due Process of Law
"expression"
(a) Definition and purpose
(d) What is included in the term "press"
(b) Person
6. Freedom of Religion
(c) Life
(a) Religion Defined
(d) Liberty
7. Liberty of Abode and Travel
(e) Property
(a) Meaning of Liberty of Abode and Travel
(f) Requirements of Due Process at a glance
(f.l) Substantive 8. Right to Information

(f.2) Procedura! (a) Two rights guaranteed by Section 7

(f.2.a) In administrative proceedings (b) Rationale of Section 7

(f.2.b) In judicial proceedings (c) Scope of the right
2. Equal Protection of Law (d) Limitations on the Right to Information matters of
public concern and on the corollary right to accesa
(a) Requirements of a valid and reasonable classifi- to official records
cation
160 INTRODUCTION TO LAW ( POLITICAL LAW AND THE CONSTITUTION 161
OF THE REPUBLIC OF THE PHILIPPINES

9. Right of Association 16. Habeas Corpus

(a) Right of association under the 1987 Constitution (a) What is a writ of habeas corpus?
and under the 1935 and 1973 Constitutions
(b) Applicability of the writ of habeas corpus
(b) What is the difference? 17. Speedy disposition of cases before ali judicial, quasi-
(c) Problem judicial or administrative bodies

10. Taking of Private Property for Public Use (a) Is there a difference between ·the· right to speedy
trial, as guaranteed in Sec. 14(2), Article III, and
(a) Public Use speedy disposition of cases as guaranteed in Sec.
(b) Just Compensation 16?
(b) Similarity
(c) Fair Market Value
. 18. Rights against self-incrimination
(d) Due Process of Law
(a) Rationale of Sec. 17
11. Prohibition agai~st impairment of obligation of contracts
(b) Purpose
(a) What is prohibited under Sec. 16?
(c) Applicability
(b) Points to remember
19. Freedom of politica! belief and freedom against involun-
12. Free access to courts and quasi-judicial bodies and tary servitude
adequate legal assistance
(a) What is involuntary servitude?
(a) Sec. 11 is a collective primary responsibility of all
(b) When is involuntary servitude permissible?
lawyers, judges, prosecutors, legislators and execu-
tives in the government including all its employees 20. Right against excessive fines, degrading or inhuman
punishment
(b) Indigent party
(a) When is fine considered excessive?
(c) Indigent distinguished from a pauper
(b) When is punishment considered cruel?
13. Right to remain silent and to have competent and
independent counsel 21. Right against imprisonment for debt or non-payment of
a poll tax
(a) Explan~tion of each right ·
(a) What is a poll tax?
14. Right to bail
22. bouble Jeopardy
(a) Generai rule
(a) Meaning and requisites
(b) Rationale of the Right to Bail
(b) What are the requisites to constitute double
(c) Bail defined jeopardy?
(d) Kinds or forms 23. Right against ex post facto law and bill of attainder
15. Due Process in Criminal Proceedings (a) Meaning of ex post facto law and bill of attainder
 /,
162 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 163
OF THE REPUBLIC OF THE PHILIPPINES

(b) Characteristics of ex post facto law (d) other high crimes

(c) Scope and applicability of the prohibition against (e) graft and corruption
ex post facto law
(f) betrayal of public trust
(d) What is a bill of attainder
4. Procedure of impeachment
(e) Characteristics of bill of attainder and bill of pains
and penalties 5. Who can file a complaint for impeachment?
6. Can an impeachment proceeding be initiated against the
PART IV same official more than once within a period of one (l)
THE FUNDAMENTAL ANO INHERENT POWERS
year?
OF THE STATE 7. Who has the sole power and authority to decide ali cases
of impeachment?
IMPORTANT TOPICS IN THIS CIIAPTER: 8. What is the nature of the impeachment proceedings?
l. What are the fundamental and inherent powers of the 9. What rules apply in an impeachment proceeding?
state?
10. What is needed in order to convict the person subject of
(a) Police Power impeachment?
(b) Power of Eminent Domain 11. What is the effect of a judgment in case of impeachment?
(c) Power of Taxation 12. Can President Estrada be prosecuted in case he is acquit-
2. Similarities and distinctions of the three powers of the ted?
State
DISCUSSION OF PART I
PARTY
BRIEF DISCUSSION OF IMPEACHMENT BASIC PRINCIPLES AND DEFINITION

IMPORTANT TOPICS IN THIS CIIAPTER: I. DEFINITION

l. What is impeachment? A. POLITICAL LAW

2. Who are the impeachable officials under the 1987 Politica! law is that branch of jurisprudence which treats of
Constitution? '\i the science of politics, or the organization of government. (Black's
Law Dictionary, Sixth Edition, p. 1158)
3. What are the grounds for impeachment and its definition?
Our Supreme Court defined politicallaw in more specific tenns
(a) culpable violation of the Constitution by saying that it is the branch of public law which deals with the
(b) treason organization and operation of the governmental organs of the state
and defines the relations of the state with the inhabitants of its
(c) bribery territory. (People vs. Perfecto, 43 Phil. 887)

164 INTRODUCTION TO LAW
B. PHILIPPINE POLITICAL LAW
Philippine Politica! Law, on the other hand, deals specifically
with the study of the structure and powers of our government as
well as the study of Constitutional Law, Administrative Law,
Election Law, Law oi"Public Officers, the Law on Municipal
Corporations, ali of which are covered by and included in the study
of Philippine Politica! Law.
C. ADMINISTRATIVE LAW
It is a study of the laws that regul~e the administrative
organization and operations of the governmental organs of the State
and determines the competence of the administrative authorities
and the remedies available to the individuai in case of violation of
his rights.
D. ELECTION LAW
It is a study of the laws, rules and procedures involving the
conduct of election of ali public officials who wili exercise the powers
of government as allocated to and within their functions and
responsibilities.
E. LAW OF PUBLIC OFFICERS
It is a study of the creation, modification and dissolution of
public office as weli as the eligibility of public officers, the manner
of their election or appointment and assumption of office, their
rights, duties, powers, inhibition and liabilities, and the modes of
terminating their official relations.
F. LAW ON MUNICIPAL CORPORATIONS
This is a study of the generai principles governing municipal
corporations, the laws affecting the creation, organization and
government of provinces, cities, municipalities and barangays; the
scope and application of the powers of municipal corporations,
including municipal ordinances, contracts, liabilities, and enter-
prises.
POLITICAL LAW AND THE CONSTITUTION 165
OF THE REPUBLIC OF THE PHILIPPINES
DISCUSSION OF PART II
THE 1987 CONSTITUTION
1. CONSTITUTION
a. What is Constitution?
Constitu~ is_jt..hody of rules and maxims in accordance with
which the powers of sovereignty are habitually exerciséd. Most
likely, i t is defined as the supreme law of the land as ordained and
established by the people which prescribes the permanent frame-
work ofthe system of government, which establishes basic principles
upon which the government is founded, and which defines and
allocates to the various organs of government their respective
powers and duties. (Justice Malcolm's description, Phil. Constitu-
tional Law, p. 6)
2. BASIC PRINCIPLES OF THE. CONSTITUTION
a. The Constitution is the supreme law of the land:
A Constitution is a legislation direct from the people acting in
their sovereign capacity, hence, it is more superior than an ordinary
law or statute which is merely a legislation from the people's
representatives subject to limitations prescribed by the Consti-
tution.
No man-made law, therefore, can prevail as against the
Constitution.
b. Being the supreme law of the land, it is the symbol and
monument of the people's will:
As such, it should be su.bmitted for ratification of the people
following the principle that "x x x sovereignty resides in the people
and ali government authority emanates from them.'' (Section 1,
Article II, 1973 and 1987 Constitutions)
c. The Constitution outlines the infrastructure of the
government:
It is through the Constitution that the fundamental powers
of the government are established, limited and defined, and by
166 INTRODUCTION TO LAW
which those powers are distributed among the several departments
of the government for their safe and useful exercise and for the
benefit of the body politic.
d. The Constitution must be obeyed by all:
I t governs the poor an d the rich, the governed an d the
governors, the mighty and the weak, and regardless of the color of
one's skin, his religion or his politica! persuasion.
e. The courts are the ultimate guardians of the Constitution:
It is the court that implements the laws prescribed in the
Constitution which would certainly gives the people whatever is
just and fair as on the case maybe.
3. CLASSIFICATIONS OF THE CONSTITUTION ANO ITS DEFI·
NITION
Q - Classify Constitutions
A - A Constitution may be written or unwritten, conventional
or cumulative, and rigid or flexible
(a) A wdtten or rigid Constitution is one the provisions
of which have been reduced to writing and embodied in one or more
instruments at a particular time.
EXAMPLE: Philippine Constitution. An unwritten Consti-
tution is one which has not been reduced to writing at any specific
time but it is the collective product of a graduai political develop-
ment, consisting of unwritten usages and customary rules, judicial
decisions, dieta of statesmen, and legislative enactments of a
fundamental character written but scattered in various records
without having any compact form in writing. The three most
conspicuous historical instances of such constitutions are those of
Athens, Rome, and England. The latter is almost the sole example
of a progressive modern State retaining such a Constitution.
(Malcolm and Laurel, Phil. Constitutional Law, pp. 9-13)
(b)Conventional or Cumulative - A conventional
Constitution is enacted deliberately and consciously by a consti-
tuent body or ruler at a certain time and piace. A cumulative
Constitution is a product of a graduai political development.
POLITICAL LAW AND THE CONSTITUTION 167
OF THE REPUBLIC OF THE PHILIPPINES
(c) Rigid or flexible -A rigid Constitution is one which
can be amendedthrough aJormal and difficult process. A/lfgible
Constitution is one which can be changed by ordinary legislation.
Q - What is the nature of the powers of a Constitutional
Convention?
A - There are three theories, thus:
(l) The powers of the Constitutional Convention are in the
nature of sovereign powers, hence, it is more supreme over the other
departments of the government.
\.
'·
1
(2) The Constitutional Convention is inferior to the other
departments of the government because it derived its powers from
the legislature which created it.
t
t· (3) It is independent and co-equal with the other depart-
ments of government. (Cruz, Constitutional Law, pp. 14-15, 1998
Edition)
Q - What are the different kinds of construction of a Consti-
tution?
A- Executive Construction - Is the construction and
interpretation of laws or statutes by the various executive heads of
the various departments of the government. (Gov't. vs. Mun. of
i Binalonan, 32 Phil. 634)
Contemporaneous Construction by Executive Officers
- Construction placed by executive officers on a statute, whose
duty is to enforce said statute. (In Re Allen, 2 Phil. 630)
Prospective Construction - Is a rule that ali statutes are
to be construed as having only prospective operation unless the
purpose and intention of the legislature to give them retrospective
effect is expressly declared or is necessarily implied from the
language used.
In every case of doubt, the doubt must be resolved against
the retrospective effect. (Lopez vs. Crow, 40 Phil. 997; Laurence vs.
Rubio, 43 Phil. 1017; Segovia vs. Noel, 47 Phil. 430)
Q- What is the doctrine of "Stare-Decisis"?
A - It means uniformity in judicial decisions. The principle
is sometimes applied and sometimes ignored in the field of
constitutional law. But it may be said that once an interpretation
168 INTRODUCTION TO LAW
has been given the provision of the constitution, it should not be
abandoned without grave reasons, for the stability of many
iroportant institutions of society depends upon permanence.
The rule applies only with respect to the point actually decided
by the case. (Black, Const. Law, 44; Humphrey vs. U.S. 602)
Q - Distinguish "Stare-Decisis" from "Res Jzidicata."
A - The first refers to rule of law, while the second refers to
settled questiona offact. (Prall vs. Burckhart, 299, Ill. 19, 132 N.E.
280)
Q - What are the advantages and the disadvantages of a
written Constitution?
A- A written Constitution has its own advantagès and
disadvantages.
Its advantages are the following:
l. lt serves as the best guide and reference of the people
when their rights and liberties are transgressed and violated.
2. lt provides stability to a nation and its people.
3. With a written law on their side, the people feel more
secure and confident that they are well protected against abuse of
authority.
4. In times of chaos and politica! uncertainties, it serves as
a link and a bridge to pass over to better times.
5. In case of external aggression, it serves as the rallying
point and inspiration of the people to protect their country against
the invaders, or even against any form of foreign control.
6. lt lays down in clear terms the principles of their politica!
creed and aspirations, the policies that govern the state and its
people, all of which protect them from frequent and violent
fluctuations of public pulse.
7. Both in times of peace and war, i t holds the people
together.
Its disadvantages are the following:
l. The rules, principles and policies upon which it is based
are difficult to change even when they turn out, at times, to be
inconvenient.
POLITICAL LAW AND TRE CONSTITUTION 169
OF TRE REPUBLIC OF TRE PRILIPPINES
2. I t is likely to encroach on the domain of ordinary
legislation instead of confining itself to fundamental principles.
3. When there is an urgent need for a change, the prescribed
rules or procedures tb effect such change often results to bitter or,
probably, violent, clashes of opinion.
Q - What are the advantages and disadvantages of R.n
unwritten Constitution?
A - An unwritten Constitution is advantageous in the sense
that it is flexible and elastic. It is not advantageous in the sense
that it is subject to perpetuai change at the will of only a few
number of people.
Q - What is the purpose of a Constitution?
A - The purpose of a CoRS..titution is "to prescribe the perma-
nent framew.ork oia"s"Ystem of government, to assign to the different
departments their respective powers and duties, and establish
certain fixed principles on which government is founded" (Malcolm
and Laurel, Philippine Constitutional Law, 7) Likewise, it serves
as a security and sanctuary of the rights of all citizens, rich or
poor, weak or strong, lettered or unlettered, and regardless of
religious and politica! persuasion. In times of peace and war, it
holds the state together.
Q - What are the essential parts of a written Constitution?
A - A good written Constitution has three essential substan-
tive parts, to wit:
l. CONSTITUTION OF LIBERTY: This contains the
fundamental civil and politica! rights of the citizens as well as the
limitations on the powers of the government to see to it that the
said rights are safeguarded. The Bill of Rights, for instance, not
only enumerates the rights guaranteed by the Constitution to every
citizen but also prescribes the limitations whenever such rights are
violated. Artide III, Section 12(2, 3, and 4) of the 1987 Constitution
offer exaroples:
"Section 12(2). No torture, force, violence, threat,
intimidation, or any other means, which vitiate the free will,
shall be used against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
170 INTRODUCTION TO LAW
Section 12(3). Any confession or admission obtained in
violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
Section 12(4). The law shall provide for penai and civil
sanctions for violations of this section as well as compensation
to and rehabilitation of victims of torture or similar practices
and their families."
2. CONSTITUTION OF GOVERNMENT: This outlines
the organization of the government, enumerating its powers, laying
down certain rules relative to its administration, and defining the
electorate. Hence, the Constitution allocates unto the three branches
of government their respective powers, functions and responsi-
bilities; specifies the constitutional bodies or commissiona as well
as their respective powers, functions and responsibilities; and
defines the accountability of public officers. ·
3. CONSTITUTION OF SOVEREIGNTY: This contains
the provisions on how to amend or revise our Constitution and when
such amendment or revision is considered valid.
Q - What are the requisites of a good written Constitution?
A - A good written Constitution must be broad, brief, and
definite.
Q - Define each.
A - l t must be broad because it must outline an organization
of government for the whole state and that unlike a statute, it is
intended not merely to meet existing conditions but also to govern
the future. While it is true that it will not govern the past, the
events that happened in the past, whether recent or too long ago,
are lessons that guide the framers of the Constitution on what they
think is appropriate to be written in the Constitution. One good
example of this is the new definition of judicial power which now
includes the duty to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the government
(1987 Constitution, Article VII, Section 1) which adds teeth to Article
VII, Section 18 of the 1987 Constitution, this is now referred to as
the expanded jurisdiction of the Supreme Court.
Likewise. the · Supreme Court may now "review. in an
appropriate proceeding filed by any citizen. the sufficiençy of the
POLITICAL LAW AND THE CONSTITUTION 171
OF THE REPUBLIC OF THE PHILIPPINES
r
factual basis of the proclamation of martial law or the suspension
of the privilege of the writ or the extension thereof, and must
1.11!
,: ' promulgate its decision thereon within thirty days from its filing.
~: ·i
(Underlining Supplied) (Section 18, paragraph 3)
lt is brief because it is not intended to go into details of
organization. The details are left to Congress which will be in better
position to find out what specific legislation is needed from time to
time.
c
i,,,
lt is definite because vagueness may cause incalculable harm,
l or it may lead to opposing interpretation which may bring about
l chaos and violence, instead of peace. Of course, there are consti-
tutional provisions which are worded in generai terms but they
are such precisely to give a reasonable leeway for the courts to
decide on what is best under the circumstances. The people should
repose their faith and trust in the intelligence and wisdom of those
in whose hands lies the solemn duty to do what is right and just.
4. THE 1987 CONSTITUTION MAY BE CHANGED
p.;
The 1987 can be changed either by amendment or rèvision.
This is referred to as formai amendment.
.ì A change may also be affected when our courts of justice
ìf interpret ambiguously worded provisions of the Constitution to
lr
make it conform with realities. This being not in accordance with
lilt: the formai process of amendment, as called for, it is understood
i'r·!.i that in so doing, the Supreme Court is merely modifying its
~t'., interpretations of the ambiguously worded constitutional provisions
involved and it does so in accordance with the principle that it has
~f"
the last word in the construction of any law and even of the
Constitution itself.
Q - Distinguish revision from amendment.
A - Revision is the rewriting or overhauling of the entire
instrument.
Amendment is a change or alteration for the better; an
amendment or change within the lines of the originai instrument
which will bring about improvement. · ·
Q - What are the steps required in the !'evision or amend-
ment of the constitution?
172 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 173
OF THE REPUBLIC OF THE PHILIPPINES

A - There are two (2) steps required in the process of revision
or amending the Constitution, namely: (l) ~?Eosal; (2) ~ation.
l. PROPOSAL - Proposal is the motion of initiating
suggestions or proposals on amendment or revision, which may
either be
by:
to the Constitution and should not extend to the revision
of the entire Constitution, as it would be practically
impossible for the voting public to review what have been
revised which is more than an amendment but a
rewriting or overhauling of the entire ,instrument.)

(a) Congress, upon a vote of three-fourths of ali its members; Q- What is People's Initiative?
or A- I t is a method whereby the people themselves can directly
(b) A Constitutional Convention; or propose amendments to the Constitution.
(c) The peoples through initiative. (Sections l and 2, Article Q- Who can propose amendments or revision ofthe Constitu-
XVII) . tion?
2. RATIFICATION - Ratification is the sovereign act A- Amendments or revisions may be proposed either by (l)
vested in the Filipino people either to reject or approve the proposals Congress or (2) by the Constitutional Convention.
to amend or revise the constitution. The ratificatory process is found Q - If the proposal is made by Congress, what is the required
and outlined in Section 4, Article XVII of the Constitution. vote?
Q - How may the constitution be revised?
A- Three-fourths of ali its members.
A - There are two (2) modes of revising the Constitution, to
Q - If the pro posai is made by a Constitutional Convention,
wit: what is the required vote?
(a) By the Congress, upon a vote of three-fourths of ali its
A - The convention, once organized, is free to decide the vote
Members; or
required to carry a proposal.
(b) By a Constitutional Convention.
IfCongress chooses to cali a Constitutional Convention, it may ·~
,1:
DISCUSSION OF PART III
either: THE BILL OF RIGHTS
(i) Cali a Constitutional Convention by a vote of two-thirds
of ali its Members (Section 3, Article XVII); :~

il. 1. DUE PROCESS OF LAW

(ii) Submit to the electorate the question of calling such a
body by a majority vote of ali its Members. (Ibid.)
Q - How may the Constitution be amended?
A - Amendment may be effected:
(a) By a Congress, upon a vote of three-fourths of ali its
Members (Section 1[1], Article XVII); or
(b) By a Constitutional Convention (Section 1[2], Article
XVII);
(c) By People's Initiative (Section 2, Article XVII). (This
system of initiative should be limited only to amendments
a. DEFINITION AND PURPOSE
Through the years, severa! definitions have been written about
due process of law. In Darmonth vs. Wordward (4 Wheat, 518 L.
ed. 629 [1819]), it was defined as a law which hears before it
condemns, which proceeds upon inquiry, and renders judgment only
after a trial. In the old case of U.S. vs. Lin Su Fan (lO Philippines
104), due process was interpreted to mean:
~~
t1
(l) That there is a law prescribed in harmony with the
generai powers of the legislative department of the
Government;
174 INTRODUCTION TO LAW
(2) That the law is reasonable in its operation;
(3) That the law is enforced according to the regular methods
of procedures prescribed;
(4) That the law is applicable alike to all people of the State
orto all of a class.
In the famous case of Aquino, Jr. vs. Military Commission (63
SCRA 546), the Supreme Court made a more articulate statement
and definition of due process of law, thus:
"Due process of law does not necessarily mean a judicial
proceedings in the regular courts. The guarantee of due
process, viewed in its procedura! aspect, requires no particular
form of procedure. It implies due notice to the individuai of
the proceedings, an opportunity to defend himself and the
problem of the propriety of the deprivation, under the circum-
stances presented, must be resolved in manner consistent with
the essential fairness. It means essentially a fair and impartial
trial and reasonable opportunity for the preparation of the
defense."
The due process clause is a guaranty against any kind of abuse
and arbitrariness, by anyone in any of the branches of government.
More specifically, the purpose of the due process clause is:
(l) To prevent undue encroachment against the life, liberty
an d property of individuals.
(2) To secure the individuai from the arbitrary exercise of
powers of government, unrestrained by the established
principles of private rights and distributive justice.
(3) To protect property from confiscation by legislative
enactments from seizure, forfeiture, and destruction
without a trial and conviction by the ordinary modes of
judicial procedures.
b. PERSON
In Roman Law, a person is one who is capable of exercising
ownership and legai rights to incur and contract obligation. Under
this concept, a slave is not considered a person, he being merely
regarded as a chattel, a thing that can be sold or disposed of at the
discretion of the master. Hence, a slave does not have the legai
capacity to exercise ownership to incur and contract obligations.
POLITICAL LAW AND THE CONSTITUTION 175
OF THE REPUBLIC OF THE PHILIPPINES
Under the New Civil Code, a person may be natura! or a
juridical person. A natura! person refers to a human being and a
juridical person refers to any of the following:
(l) The State and its politica! subdivisions;
(2) Other corporations, institutions and entities for public
interest or purpose created by law; their personality
begins as soon as they have been constituted according
to the law;
(3) Corporations, partnerships and associations for private
interest or purpose to which the law grants a juridical
personality, separate and distinct from that of each
shareholder, partner or member. (Article 44, New Civil
Code)
Under our Constitution, natural and artificial persons are
covered iind protected by the due process clause, except that with
respect to artificial persons, the protection is only insofar as their
property is concerned. (South Bell and Co. vs. Natividad, 40 Phil.
136)
c. LIFE
The right to life is not merely a right to the preservation of
life itself but also to the security of the limbs and organs of the
human body against any unlawful harm. This constitutional
guarantee includes the rights of an individuai to pursue a lawful
calling or occupation; to express, write or even paint his ideas for
as long as he does not unlawfully transgress the rights of others;
to exercise his freedom of choice, whether this is in the area of
politics, religion, marriage, philosophy and employment, or even
in the planning of his family, and in generai, to do and perform
any lawful act or activity which, in his judgment, will make his
life worth living.
Under the new Constitution, the right to life may further be
construed to mean and to include an "improved quality of life"
(Section 9, Article II), "full respect for human rights" and the
"dignity of every human person" (Section 11, Article Il), "just and
dynamic social order" to ensure "the prosperity and independence
of the nation and free the people from poverty through policies that
provide adequate social services, promote full employment, a rising
standard of living, and an improved quality of life for all" (Section
9, Article 11), "the right to health" and "balanced and healthful
176 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 177
OF THE REPUBLIC OF THE PHILIPPINES

ecology in accord with rhythm and harmony of nature" (Sections
15 and 16, Article Il), the right to "socialjustice," (Section 10, Article
Il) the "right of workers" and the promotion of their welfare"
(Section 18, Article Il), and "equal access to opportunities for public
service" (Section 26, Article 11).
Ali these are declared principles and state policies the
promotion and enforcement of which are guaranteed by the express
provision of Artide II of the 1987 Constitution. In that sense, they
could reasonably be daimed as part of the right to life, to hold
otherwise would, in effect, render nugatory the very assurance and
undertaking of the State to promote and guarantee the same to ali
citizens alike, without discrimination.
~~
1),:
d. LIBERTY ,'~
~~
Liberty refers to something which is more than mere freedom ..
i the more specific concern of substantive due process is not to find
from physical restraint or the bounds of a prison. It means freedom
to go where one may choose, and to act in such manner, not
inconsistent with the equal rights of others, as his judgment may f:
dictate for the promotion of his happiness; to pursue such callings J following. There must be a valid law upon which it is based:
and avocations as may be most suitable to develop his capacities,
and give to them their highest enjoyment, within the bounds of
law. (Munn vs. Illinois, 94 U.S. 143)
A person is free to do anything he wants provided he does not ~'~l
violate the law and the better rights of others. This freedom,
however, should be construed as freedom to do right, and never
wrong, according to Apolinario Mabini, hence, in exercising this
freedom, one should be "guided by reason and the upright and
honorable conscience of the individuai; commanding obedience to
those rightfully placed in power and acknowledge as the most fit i'~
to guide." t be taken away from him. Simply stated, it means that the procedure
e. PROPERTY
of one's employment or profession (Century Textile Mills, !ne. vs.
NLRC, 161 SCRA 528), the rights arising from a perfected mining
daim, or a perfected homestead, or a final judgment, are protected
and cannot be taken away from the owner without due process of
law.
f. REQUIREMENTS OF DUE PROCESSATA GLANCE
The due process clause should be interpreted both as a
substantive and as a procedura! guard.
l. SUBSTANTIVE
Substantive due process is a guarantee that life, liberty and
property shall not be taken away from anyone without due process
of law. Ifa law is invoked to take away one's liberty and property,
out whether said law is being enforced in accordance with
procedura! formalities but whether or not the said law is a proper
exercise of legislative power. This will necessarily require the
(a) The law must have been passed or approved to accom-
plish a valid governmental objective.
(b) The objective must be pursued in a lawful manner.
(c) The law as well as the means to accomplish the objective
must be valid and not oppressive.
2. PROCEDURAL
Procedura! due process refers to the regular methods of
procedure to be observed before one's life, liberty or property can
to be observed must be fair.

Property refers to things which are susceptible of appro-
priation, and which are already possessed and found in the
possession of man. (Castan, 8th ed., Part II, pp. 367-369)
It could either be immovable or real property, as enumerated
in Artide 415 of the Civil Code, or movable or personal property,
as enumerated in Artides 416 and 417 of the Civil Code. Ali those
properties, induding the right to own and possess the same, as
well as the right to acquire, or use it for any lawful purpose and by
any lawful means, the right to earn a living, the right to the fruits
fl'
Procedura! due process therefore is a guarantee to obtain a
fair trial in a court of justice according to the mode of proceeding
applicable to each case. Now, this indudes not only any court of
justice but also any and ali administrative boards, bodies or
tribunals.
THE TWO (2) ASPECTS OF PROCEDURAL DUE PROCESS
ARE THE FOLLOWING:
l) PROCEDURAL DUE PROCESS IN ADMINISTRATIVE
PROCEEDINGS
178 INTRODUCTION TO LAW
2) PROCEDURAL DUE PROCESS IN JUDICIAL PRO-
CEEDINGS
The requirements of due process in judicial proceedings, as
laid down in Banco Filipino vs. Palanca (37 Phil. 921) are as follows:
l. There must be an impartial court or tribunal clothed with
judicial power to hear and determine the matter before
i t;
2. Jurisdiction must be lawfully acquired over the person
of the defendant and over the property which is subject
matter of the proceeding;
3. The defendant must be given an opportunity to be heard;
and
4. Judgment must be rendered upon lawful hearing.
PROCEDURAL DUE PROCESS IN
ADMINISTRATIVE PROCEEDINGS
The requirements of due process in administrative pro-
ceedings, as laid down in Ang Tibay· vs. Court of Industriai Relations
(69 Phil. 635), are as follows.
l. The right to a hearing, which includes the right to present
one's case and submit evidence in support thereof;
2. The tribunal must consider the evidence presented;
3. The decision must have something to support itself;
4. The evidence must be substantial;
5. The decision must be rendered on the evidence presented
at the hearing, or at least contained in the record and
disclosed to the parties affected;
6. The tribunal or body or any of its judges must act on its
own independent consideration of the law and facts of
the controversy and not simply accept the views of a
subordinate in arriving at a decision; and
7. The board or body should, in all controversia! questions,
render its decision in such a manner that the parties to
the proceeding can know the various issues involved, and
the reason for the decision rendered.
POLITICAL LAW AND THE CONSTITUTION 179
OF THE REPUBLIC OF THE PHILIPPINES
SEARCH ANO SEIZURE
There are actually three (3) rights mentioned in Section 2,
Artide III of the Constitution thus:
l. One is the right of the people to be secure in their
persons. houses. papers. and effects against unreasonable
searches and seizures of whatever nature and for any purposes.
The right is "inviolable."
2. No search warrant shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complaint and the
witnesses he may produce, and particularly describing the piace to
be searched and the persons or things to be seized.
3. No warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized. (Compressed in
the second sentence of Section 2 which says, "and no search warrant
or warrant of arrest shall issue except upon probable cause xxx.''}
PRIVACY OF COMMUNICATION
ANDCORRESPONDENCE
RULE ANO EXCEPTIONS
GENERAL RULE:
The privacy of communication and correspondence shall be
inviolable.
EXCEPTIONS:
(l) Except upon lawful order of the court; or
(2) When public safety or order requires otherwise as
prescribed by law.
COVERAGE OF THE GUARANTEE
The constitutional protection to privacy or communication and
correspondence includes tangible or intangible objects.
180 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 181
OF THE REPUBLIC OF THE PHILIPPINES

EXAMPLE: 2. The right of peaceful picketing. (Cafeteria Employees

l. Tangible objects - Letters, telegrams, signals, cables, Union vs. Angeles, 64 Suppt. Crt. 126)
telephone, client's file and other documents. 3. The right to a lawful strike.
2. Intangible objects- Under Republic Act No. 4200, it 4. The right to disseminate information concerning the facts
is illegal for any person, not authorized by ali the parties of a labor dispute.
to any private communication by means of tape recorder.
(People vs. Sy Juco, 64 Phil. 667) 5. Expression by means of radio, television, and motion
picture.

FREEDOM OF SPEECH AND OF THE PRESS 6. The right to express grievances against the government;
to criticize the affairs of government.
MI:ANING OF FREEOOM OF SPEECH 7. The right to display posters, notices, flags and banners.
ANO OF THE PRESS
Freedom of speech and that of the press implies, the right to WHAT IS INCLUOEO IN THE TERM "PRESS"
freely utter and publish whatever the citizen may please, and to
be protected from any responsibility for so doing, except so far as They include newspapers, magazines, journals, books and any
such publication, from their blasphemy, obscenity, or scandalous sort of publication.
character, may be a public offense, or as by their falsehood and
malice they may injuriously affect the standing, reputation or FREEDOM OF RELIGION
pecuniary interests of individuals. (Cooley's Const. Limitations, 8th
ed., 886; U.8. vs. Sotto, 38 Phil. 666)
RELIGION OEFINEO

WHAT ARE INCLUOEO IN THE FREEOOM OF EXPRI:SSION? In broad sense, religion includes any form of belief in regard
to the relation of human beings to some supernatural powers, or
It includes the following: as defined in Aglipay vs. Ruiz (64 Phil. 201), it is a "profession of
l. Free speech and free press faith to an active pÒwer that binds and elevates man to his creator."
Persons holding the same religious beliefs are generally associated
2. Freedom of assembly in groups which may or may not be organized as corporations.
3. Freedom of petition
In a more specific or restricted sense, religion is a system of
4. Freedom of religion belief, or worship, or philosophy not necessarily in the existence of
5. Right of association or right to form associations God, or power of a more superior being, but in a philosophy or way
of life detached from any reverence or obedience to God.
6. Right to religious freedom
There are those who pray in any piace of their choice for they
believe that the tempie of God is not necessarily the altar we know
WHAT ARE INCLUOEO IN THE TERMS "SPEECH"
with ali images of saints, but a piace where they could meditate
ANO "EXPRESSION"
and talk to their own God without the intercession of any priest or
The terms include the following: pastor.
l. The right to freely utter, print and publish any statement In ali these instances, their faith and way of life, is their
without previous censorship of the government. (U.S. vs. religion which the Constitution guarantees to be inviolable. The
Sotto, 38 Phil. 666) reason for this is because the Constitution guarantees the freedom
182 INTRODUCTION TO LAW
to believe, this is being absolute. What is regulated and subject to
the police power of the State is when that belief is translated into
action and the acts or acts performed is harmful to the better rights
of others.
LIBERTY OF ABODE AND TRAVEL
MEANING OF LIBERTY OF ABOOE ANO TRAVEL
It is the right of a person to have his home or to maintain or
change his home, dwelling, residence or habitation in whatever
piace he has chosen, within the limits prescribed by law (First
Sentence, Section 6), and to go where he pleases without interference
from anyone, except in the interest of national security, public safety,
or public health, as may be provided by law. (Second Sentence,
Section 6)
The exceptions aforementioned means that the liberty of abode
and travel is subject to the police power of the State.
RIGHT TO INFORMATION
TWO RIGHTS GUARANTEEO BY SECTION 7
The two rights guaranteed by Section 7 are (l) the right to
information on matters of public concern (First Sentence, Section
7); and (2) the right to access to official records, and to documents,
and papers pertaining to official acts, transactions or decisions, as
well as to government research data used as basis for policy
development.
RATIONALE OF SECTION 7
The strength of a democratic and republican government, such
as ours, depends on the active support and cooperation of the
sovereign people who choose and elect the officers who will represent
them. Just as they are the ones upon whose hands lie the sovereign
will and authority to put them from there; they are undoubtedly
entitled to know, a t the very least, if they are served or not served
weli; if the government entrusted to their care is properly managed
or not; if the funds and properties which the people own are properly
kept and spent.
POLITICAL LAW AND THE CONSTITUTION 183
OF THE REPUBLIC OF THE PHILIPPINES
It is in the pursuit or exercise of this right that the people
are granted the right to know and to be informed "on matters of
public concern."
l t is through the exercise of this right that those in govemment
are on their toes, so to speak, for they are awar~ that the vigilant
public, assisted by broadcast and print media, are all.there watching
them, particularly the performance oftheir functions and responsi-
bilities.
They know that sooner or later, they will be exposed to the
fulllight ofpublic scrutiny. (Valmonte vs. Belmonte, Jr., 170 SCRA
256 [1989]). They will be more cautious and careful, and more than
this, transparent in their dealings and transactions.
SCOPE OF THE RIGHT
The right to information includes the right to be informed
"matters ofpublic concern." This, in turn, includes access "to offi.cial
records and documents and papers pertaining to official acts,
transactions or decisions, as well as to government research data
used as basis for policy development."
LIMITATIONS ON THE RIGHT TO INFORMATION
MATTERS OF PUBLIC CONCERN ANO ON THE
COROLLARY RIGHT TO ACCESS TO OFFICIAL
RECOROS
Said rights are "subject to such limitations as may be provided
by law." The limitations referred to may either be a limitation
imposed by statutory law, or by any regulation which a particular
office may impose to maintain order and efficiency or to insure the
safety of the records in its custody.
Among the many government offices whose records are usually
inspected, examined or copied, are the records, of the Securities
and Exchange Commission, Registry of Deeds, Courts in alllevels,
Land Registration Authority, N ational Bureau of Investigation,
N ational Intelligence Administration, N ational Labor Commission
and other quasi-judicial offices, Social Security System, Government
Service Insurance System, Department of Labor and Employment,
Bureau of Domestic 'l'rade, Department of Foreign Affairs and their
auxiliary offices, and the N ational Archives, among others. From
day to day, thousands of people go to these offices for such purposes.
184 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 185
OF THE REPUBLIC OF THE PHILIPPINES

Access to officiai records of sdd offices and other government
offices for that matter is guaranteed by Section 7, but it reserves
the right to impose reguiations which are necessary preciseiy to
protect the safety of the documents in their possession. With the
advent of computer and modern technoiogy, for instance, the records
in the Securities and Exchange Commission, or that of the Land
Registration Authority, are now in microfiims and researchers are
now required to pay some fees to have copies, upon proper appii-
cation.
In other words, controis and system are in piace not to prohibit
access, but to reguiate access. Without these, the safety of the
documents will not be assured and it will be more inconvenient to
the peopie who seek access to officiai records.
Another controi and reguiation which the government may
impose happens when there is an imperative need to preserve
confidentiality, or to protect nationai security. In such cases, the
higher interest of the State, or of the government, is a t stake and
may not be prejudiced oniy or the benefit of convenience of orte or
a few persons.
2. WHAT IS THE OIFFERENCE?
Ali the said provisions guarantee the right to form associations
or societies for purposes not contrary to Iaw. Section 8, Artide III
of the present Constitution, however, mereiy maj{es an emphasis
(l) that the right of association is a "right of the people, including
those empioyed in the public and private sectors; and (2) that the
said right now includes to form unions." ·
Even without the said constitutionai provision, the right of
associatiòn is part and parcei of the freedom of expression and
assembly, and like the latter, it is · subject to limitations imposed
by Iaw and to the dominant police power of the state.
PROBLEM:
CAN THE LAWYER'S NAME IN THE ROLL OF
ATTORNEYS BE CANCELLEO FOR HIS FAILURE
TO PAY HIS MEMBERSHIP DUES IN THE
INTEGRATEO BAR OF THE PHILIPPINES?

Bar integration does not compei a Iawyer to associate with

RIGHT OF ASSOCIATION ·r: anyone. l t is his choice to attend or not to attend meetings of the
,{
Integrated Bar, to vote or not to vote in the eiection of officers of
the Integrated Bar of the Philippines.
1. RIGHT OF ASSOCIATION UNOER THE 1987 CONSTITUTION
ANO UNOER THE 1935 ANO 1973 CONSTITUTIONS The only compulsion to which a lawyer is subjected to is the
payment of the annual dues. Even on the assumption that
Integrated Bar compeis a Iawyer to pay his annuai dues, this is
~ :~~ justified as a valid exercise of the police power of the state.
1935 1973 1987 ·ili
'h'
CONSTITUTION CONSTITUTION CONSTITUTION ' Admission to the practice of Iaw is not a right but a priviiege.
Article III, Section Article IV, Section 7 Article III, Section 8 (In re Marcia[ Edillion, 84 SCRA 554)
1(6)

"T h e right t o "The right to form "The right of the TAKING OF PRIVATE PROPERTY
form. association or association or societies people, including those f!· FOR PUBLIC USE
societies for purposes for purposes not con- employed in the public
trary to law shall not be
'~-·!
not contrary to law or private sectors, to Private property can be taken from its owner but subject to
shall not be abridged." abridged." form unions, associa-
the following conditions:
tions, or societies for
purposes not contrary to l. That the private property is taken for public use.
law shall not be ab-
ridged." 2. That the owner of the said property shouid be paid just
ì
compensation.
!: ~
186 INTRODUCTION TO LAW
3. That due process of law shall be observed in the taking
of the said property.
4. That the taking shall only be exercised by the State
or by those to whom the power bas been lawfully
delegated.
3. TERMS USED
Public use - Public use is synonymous with public benefit,
public utility, or public advantage, and to authorize the exercise of
the power of eminent domain to promote such public benefit, etc.,
especially where the interest involved are of considerable magni-
tude. (Guido vs. Rural Progress Administration, 84 Phil. 847)
Just compensation - It is a fair and full equivalent of the
loss sustained. It is the market value to which must be added the
consequential damages, if any, or from which must be deducted his
consequential benefit, if any. (Manila Railway. Co. vs. Fabie, 17 Phil.
207; Manila Railway Co. vs. Ve{asquez, 32 Phil; 286) · ·
Republic Act No. 7160, otherwise known as the Local Govern-
ment Code, provides that the amount to be paid for the expropriated
property shall be determined by the proper court based on the fair
market value at the time of the taking of the property. The value
determined by the assessor may, however, be contested in court.
Fair Market value - It is the price at which a willing seller
would sell and a willing buyer would buy, neither being under
normal pressure. (Manila Railroad Co. vs. Caligsihan, 40 Phil. 326;
Municipality of Bustos vs. Santos, C.A.-G.R. No. 22547-R, June 29,
1962)
Due process of law - It is a law which hears before it
condemns, which proceeds upon inquiry, and renders judgment only
after trial. (Darmouth vs. Wood Mart, 4 Wheat, 518 L. ed. 629)
PROHIBITION AGAINST IMPAIRMENT
OF OBLIGATION OF CONTRACTS
To have a clearer understanding of Section 10, a law student
should know the following basic principles about contracts.
POLITICAL LAW AND THE CONSTI'l'UTION 187
OF THE REPUBLIC OF THE PHILIPPINES
1. WHAT 15 PROHIBITED?
A. Article 1306, New Civil Code
Article 1306. The contracting parties may establish
such stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not contrary to
law, morals, good customs, public order, or public policy.
Under this provision, the contracting parties are free to enter
into any kind of contract they choose and they are likewise free to
"establish such stipulations, clauses, terms and conditions as they
may deem convenient."
This right, however, is not absolute. It is subject to the
limitation that the said stipulations, clauses, terms and conditions
"are not contrary to law, morals, good customs, public order, or
public policy."
B. Article 1311, New Civil Code
Article 1311. Contracts take effect only between. the
parties, their assigns and heirs, except in case . where
the rights and obligations arising from the contract are
'il
not transmissible by their nature, or by stipulation or
~
f by provision of law. The heir is not liable beyond the
t: value of the property he received from the decedent.
lf a contract should contain some stipulation in
favor of a third person, he may demand its fulfillment
provided he communicated his acceptance to the obligor
before its revocation. A mere incidental benefit or
interest of a person is not sufficient. The contracting
parties must have clearly and deliberately conferred a
favor upon a third person. (1257a)
GENERAL RULE: Contracts take effect only between the
parties and their heirs.
EXCEPTION: Except in case where the rights and obliga-
tions arising from contract are not transmissible by their nature
or by its stipulation or by provision of law.
C. The freedom of contract is both a constitutional and
statutory right.
To uphold this right, the courts should move with the necessary
188 INTRODUCTION TO LAW
caution and prudence in holding contracts void. (People vs. Pomar,
46 Phil. 440; Ferrazini vs. Gsell, 34 Phil. 697)
D. Obligations arising from contracts
"Article 1159. Obligations arising from contracts
have the· force of law between the contracting parties
and should be complied within good faith."
2. POINT5 TO REMEMBER:
A. PARTIES HAVE NO VESTED RIGHT IN PAR-
TICULAR REMEDIES OR MODES OF PROCE-
DURE.
Reason: Particular remedies and modes of procedure is an
exercise of the police power of the state. Besides, it is within the
power of the legislature to enact laws which will provide particular
remedies or modes of procedure if they are in its judgment necessary
under the circumstances.
EXAMPLE:
Passage of a law providing for the suspension or post-ponement
in the payment of obligation. The moratorium, however, should not
be an unreasonable length of time, otherwise, i t is an infringement
of the provision against the infringement of contract.
FREE ACCESS TO COURTS AND QUASI-JUDICIAL
BODIES AND ADEQUATE LEGAL ASSISTANCE
1. 5ECTION 11 15 A COLLECTIVE PRIMARY RE5PON51BILITY
OF ALL LAWYER5,. JUDGE5, PR05ECUTOR5, LEGI5LA-
TOR5 ANO EXECUTIVE5 IN THE GOVERNMENT INCLUDING
ALL IT5 EMPLOYEE5
This is one guarantee in the Bill of Rights which should better
be implemented and complied with by everyone having to do in
the administration of justice, by every employee in the judièial and
quasi-judicial agencies of our government, and by all lawyers who
are handling cases, either as counsel for the plaintiff or for the
defense.
POLITICAL LAW AND THE CONSTITUTION 189
OF THE REPUBLIC OF THE PHILIPPINES
At a time when the costs of living have become so expensive,
it has become so difficult for the poor to afford even the basic
necessities of life. Food, shelter, clothing and education, for instance,
are no longer sufficiently enjoyed by many people both in the city
and in the countryside. With more reason therefore that a greater
number of people find it more difficult to sustain 'costs of medicines,
hospitalization and doctor's fees, as well as costs of a court .suit
and attorney's fees.
The burden of prosecuting or defending a cause of action,
whether in a civil, criminal labor or administrative proceedings,
have discouraged many citizens to go into litigation. Some who have
tried to litigate have been disappointed either because the same
has become tedious, prolonged and expensive, or because they have
not obtained justice.
To compound these problema, some officers and employees of
government are not serving poor litigants with vigilance, courtesy,
efficiency and dedication. Ali these add to the pain and burden of
those who are precisely suffering from poverty.
This is a collective primary responsibility of alllawyers, judges,
prosecutors, legislators, and executives in government including all
its employees. They should do everything possible to make their
good influence felt by those in the lower echelons of government,
particularly those employed in the judiciary. They should be
reminded of the following:
''A HUNGRY MAN KNOWS NO LAW EXCEPT THE
LAW OF SURVIVAL. A PERSON WHO IS OPPRESSED
AND A VICTIM OF INJUSTICE FORGETS THE LAW. HE
TAKES THE LAW IN HIS HANDS. AN OPPRESSED
HUNGRY MAN SUFFERS MORE. HE IS LIABLE TO
RUN AMOCK. HE LOST HIS LAST HOPE."
2. WHO 15 AN INDIGENT PARTY?
An indigent party is one who is authorized by the court to
prosecute his action or defense as an indigent upon an ex parte
application and hearing showing that he has no money or property
sufficient and available for food, shelter and basic necessities for
himself and his family. (Section 21, Rule 3 of 1997 Rules of Civil
Procedure)
190 INTRODUCTION TO LAW -~
3. INDIGENT DISTINGUISHED FROM A PAUPER
A pauper is a person so poor that he must be supported at
public's expense. (Philippine Legal Encyclopedia, by Jose Agaton
R. Sibal)
The Supreme Court, however, gave a broader meaning to this
word, as applied to statutes or provisions on the right to sue. An
applicant for leave to sue in forma pauperis need not to be a pauper,
the fact that he is able-bodied and may earn the necessary money
is no answer to his statement that he has no sufficient means to
prosecute the action or to secure the costs. (lbid.)
As distinguished from indigent. The difference between
"paupers" and "indigent" persons is that the latter are persons who
have no property or source of income sufficient for their support
aside from their own labor, though self-supporting when able to
work and in employment. (lbid.)
RIGHT TO REMAIN SILENT AND TO HAVE
COMPETENTANDINDEPENDENTCOUNSEL
EXPLANATION OF EACH RIGHT
A. RIGHT TO REMAIN SILENT
A person under investigation has the right to refuse to answer
any question. More than this, his silence may not be used against
him. (People vs. Alegre and Gordoncillo, 94 SCRA 109, 118 [Nov. 7,
1979])
B. RIGHT TO COUNSEL
The right of a person under investigation is to have "competent
and independent counsel preferably by his own choice."
The purpose of the right to counsel during custodia! inves-
tigation is to preclude the slightest coercion as would lead the
accused to admit something else. (People vs. Eranoria, 209 SCRA
577, June 8, 1992; People vs. Remollo, 227 SCRA 375, October 22,
1993)
C. RIGHT TO BE INFORMED OF ONE'S RIGHT
It is not enough that a police officer will just repeat to the
person under investigation the provisions of the Constitution. He
POLITICAL LAW AND THE CONSTITUTION 191
OF THE REPUBLIC OF THE PHILIPPINES
must also explain the effects in practical terms. (People vs. Rojas,
147 SCRA 169[1987])
The police investigator should explain a meaningful
information rather than just a ceremonial and perfunctory recitation
of an abstract constitutional principle. (lbid~)
RIGHT TO BAIL
1. SIMPLIFICATION OF SECTION 13
GENERAL RULE:
Before conviction, ali persons shali be available by sufficient
sureties.
Before conviction, ali persons shall be released on recognizance
as may be provided by law.
EXCEPTION:
The said rule shali not apply to those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong.
2. RATIONALE OF THE RIGHT TO BAIL
An accused is presumed innocent until his guilt is proven
beyond reasonable doubt by final judgment. The right to bail gives
the accused not only an opportunity to obtain provisional liberty
but also the chance to prepare for trial while continuing his usual
work or employment. The bail posted by the accused for his
provisionalliberty is, in effect, an assurance that the accused will
attend the court proceedings, particularly when his presence is
required.
In short, the purpose of the bail is to relieve the accused from
imprisonment until his conviction, and at the same time his
appearance at the trial is secured. (Almeda vs. Villaluz, 66 SCRA
38 [1975])
3. BAIL DEFINED
Bail is the security given for the release of a person in custody
of the law, furnished by him or a bondsman, conditioned upon his
 ,~
~

192 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 193

OF THE REPUBLIC OF THE PHILIPPINES

appearance before any court as required under the conditions
hereinafter specified. (Section 1, Rule 114, New Rules of Court)
Bail may be given in the form of corporate surety, property
bond, cash or deposit or recognizance. (lbid.)
4. KINDS OR FORMS OF BAIL
A. BAIL BOND -An obligation given by the accused with
one or more sureties, with the condition to be avoided upon the
performance by the accused of such acts as he may legally be
required to perform. (Villasemor vs. Abana, 21 SCRA 312)
·•..
It may be given in the form of:
l. Corporate Surety (Section 10, Rule 114, Rules of Court)
2. Property Bond (Section 11, Rule 114, Rules of Court)
3. Cash Deposit (Section 14, Rule 114, New Rules o{Court)
4. Recognizance (Section 15, Rule 114, New Rules of Court)
B. RECOGNIZANCE - It is a bond or similar obligation
made and recorded before a court by which a person binds himself
to perform some act or fulfill some condition at a specified time.
(Philippine Legal Encyclopedia, p. 837, by Jose Agaton R. Sibal)
DUE PROCESS IN CRIMINAL PROCEEDINGS
1. SIMPLIFICATION
Section 14, paragraph l, speaks of due process in criminal
cases or proceedings. Section 14, paragraph 2, specifies the rights
of the accused in ali criminal prosecutions namely:
l. The accused shall be presumed innocent until the
contrary is proved.
2. The accused shall enjoy the right to be heard by himself
and counsel.
3. To be informed of the nature and value of accusation
against him.
4. To have speedy, impartial and public trial.
5. To meet the witnesses face to face.
6. To have compulsory process.
7. To secure the attendance of witnesses and the production
of evidence in his behalf.
However, after arraignment, trial may proceed notwith·
standing the absence of the accused. PROVIDED (l) that he has
been duly notified and (2) that his failure to appear is unjustifiable.
HABEAS CORPUS
1. WHAT IS A WRIT OF HABEAS CORPUS?
It is a writ of order directed to the person detaining another
and commanding him to produce the body of the prisoner at a
certain time and piace, with the day and the cause of his detention,
to do, submit to, and receive whatsoever the court ofjudge awarding
the writ shali consider in that behalf.
· · It is a special proceeding the applicability of which is defined
by Section l, Rule 102 ofthe Revised Rules ofCourt in the following
manner:
"Section 1. 1b what habeas corpus extends. - Except
as otherwise expressly provided by law, the writ of
habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody
of any person is withheld (rom the person entitled
thereto."
2. APPLICABILITY OF THE WRIT OF HABEAS CORPUS
The above-quoted provision of the Rules of Court states that
a writ of habeas corpus may be availed of in "ali cases of illegal
confinement or detention by which any person is deprived of bis
liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto." ·
 v-l•

·v
194 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 195
OF THE REPUBLIC OF THE PHILIPPINES

SPEEDY DISPOSITION OF CASES BEFORE ALL RIGHT AGAINST SELF-INCRIMINATION

JUDICIAL, QUASI-JUDICIAL
OR ADMINISTRATIVE BODIES 1. RATIONALE OF SECTION 17

1. IS THERE A OIFFERENCE BETWEEN THE RIGHT TO SPEEOY The right against self-incrimination ìs a mandatory and
TRIAL, AS GUARANTEEO IN SECTION 14(2), ARTICLE 111,
substantive right established on broad grounds of public policy and
ANO SPEEOY OISPOSITION OF CASES, AS GUARANTEEO humanity. Policy because it would place the witness against the
IN SECTION 16? strongest temptation to commit perjury, of humanity because it
would be to extort a confession of truth by a kind of duress every
There is a difference. The right to speedy trial particularly specie and degree of which the laws abhor. (Chavez vs. Court of
refer to criminal prosecutions which are at the trial stage, while Appeals, 24 SCRA 663)
i_,
the right to speedy disposition of cases applies to all cases before
judicial, quasi-judicial or administrative bodies. In fact, Artide III, Section 12(1) guarantees that "any person
under investigation for the commission of an offense shall have
More specifically, here are the differences: the right to be informed of his right TO REMAIN SILENT."
·:i•' No torture, force, violence, threat, intimidation, or any other
SPEEDY TRIAL SPEEDY DISPOSITION ,,ifi means which vitiate the free will shall be used against him (Section
OF CASES ~ :!
f 12[2}, Article III, 1987 Constitution) and "any confession or
l. The right to speedy trial is l. The right to speedy dispo- admission obtairied in violation of this or Section 17 hereof shull
what provided under Artide sition of cases is provided be inadmissible in evidence against him." (Section 12[3], Article III,
IV, Section 14(2), of the 1935 under Artide IV, Section 16, rl':.~
'
1987 Constitution)
~~ ,:
Constitution. of the 1973 Constitution, and
now found likewise in Artide
III, Section 16, of the 1987 2. PURPOSE OF THE PRIVILEGE
Constitution. The basic purposes of the right against self-incrimination are
as follows:
2. The right to speedy trial 2. It covers all phases of the l. For humanitarian reasons to prevent a witness or accused
pertains only to criminal proceedings, whether judi- from being coerced, whether physically, morally ami/or
prosecutions which are at the cial, quasi-judicial or admi- psychologically into incriminating himself, and
trial stage. nistrative. This right is there-
2. To protect the witness or accused from committing
fore broader than speedy trial
and applies to civil, criminal perjury, because the first law of nature is self-incrimi-
and administrative cases. nation. (Galman vs. Pumaran, 138 SCRA 294)
L__---- ---- ··---- ----- ------ - - --- ···-- ---- -------~--

3. APPLICABILITY OF SAIO RIGHT

SIMILARITY
The right is available not only in criminal prosecutions but;
Both rights are beyond quantification, as they cannot be
measured in terms of days, months or even years. Both rights are also in other proceedings, whether they are civil, administrative or
given a relative concept consistent with reasonable delays legislative investigations. (lbid.) In fact, said right may be claimed
considering the circumstances in each case. (Martin vs. Ver, 123 not only by a person accused of an offense but also by any witness
SCRA 745) who is asked an incriminating question.
 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 197
196
OF THE REPUBLIC OF THE PHILIPPINES

FREEDOM OF POLITICAL BELIEF AND to their property on the occupation on which they may be engaged.
FREEDOM AGAINST INVOLUNTARY SERVITUDE (Villanueva vs. City of Iloilo, 26 SCRA 578)

1. WHAT IS INVOLUNTARY SERVITUDE? DOUBLE JEOPARDY

It is a condition where one is forced to work for another against
his will and whether he is paid or not.
2. WHEN IS INVOLUNTARY SERVITUDE PERMISSIBLE?
It is permissible when the following conditions exists:
l. lf it is a punishment for a crime whereof the party shall
have been duly convicted. (Section 18[2])
2. If it is so required to defend the State. (Section 4, Article
Il)
3. If it so needed under the principle of posse comitatus.
(U.S. vs. Pompaya, 31 Phil. 245)
RIGHT AGAINST EXCESSIVE FINES,
DEGRADING OR INHUMAN PUNISHMENT
1. MEANING OF DOUBLE JEOPARDY
When an accused is either acquitted, or convicted, or the case
against him is dismissed or otherwise terminated without his
express consent, by a court of competent jurisdiction, upon a
complaint on information or when formai charge sufficient in form
and substance to sustain a conviction and after the accused has
pleaded to the charge, THE CONVICTION ON ACQUITTAL OF
THE ACCUSED ON THE DISMISSAL OF THE CASE SHALL BE
A BAR TO ANOTHER PROSECUTION FOR THE SAME
OFFENSE.
After the said conviction, acquittal or dismissal, and the said
elements being present, double jeopardy can be invoked to defeat a
second prosecution for the same offense. (Section 21, Article III, in
relation to Rule 117, Section 7, New Rules of Court)

1. WHEN IS FINE CONSIDERED EXCESSIVE? 2. WHAT ARE THE REQUISITES TO CONSTITUTE DOUBLE
A fine is considered excessive where it is clearly shown that JEOPARDY?
the nature of the violation compared with the fine is
In order that an accused may not be subjected to another trial
disproportionate, or if it exceeds the utmost limit of the punishment
and punishment for the same offense, the following requisites must
which the vindication of the law demands. (U.S. vs. Valera, 26 Phil.
be complied with, to wit:
598)
Punishment is cruel if i t is flagrantly and plainly oppressive, l. There must be a valid complaint or information;
wholly disproportionate to the nature of the offense as to shock the 2. Said complaint or information must be filed in court of a
moral sense of the community (People vs. Etista, 93 Phil. 647), or competent jurisdiction;
when it involves torture or lingering death. (People vs. Puda, 133
SCRA l) 3. The accused has pleaded guilty to the charge; and
4. The accused has been acquitted or the case dismissed or
RIGHT AGAINST IMPRISONMENT FOR DEBT terminated without his express consent. (People VH.
OR NON-PAYMENT OF A POLL TAX Vergara, 41 SCAD 13, 221 SCRA 560; People vs. Navallo,
234 SCRA 175)
1. WHAT IS A POLL TAX?
It is a tax of fixed amount upon ali persons or upon persons
of certain class, resident within a specific territory, without regard
198 INTRODUCTION TO LAW
RIGHT AGAINST EX POST FACTO LAW
AND BILL OF ATTAINDER
1. MEANING OF EX POST FACTO LAW:
In Latin, ex post facto law means "From something done
afterwards." It is any law which makes an innocent act a crime
after the act was commit.ted.
The Supreme Court. made a comprehensive meaning of an ex
post facto law, thus: It is one which -
l. Makes criminal an act before the passage ofthe law and
which was innocent when done, and punishes such an act;
2. Aggravates a crime, or makes it greater than it was, when
committed;
3. Changes the punishment and inflicts a greater punish-
ment than the law annexed to the crime when committed;
4. Alters the legai rules of evidence, and authorizes
conviction upon less or different testimony than the law
required a t the time of the commission of the offense;
5. Assuming to regulate civil rights and remedies not only,
in effect imposes penalty or deprivation of a right for
something which when done was lawful; and
6. Deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the
protection of a former conviction or acquittal, or a
proclamation of amnesty. (Philippine Legal Encyclopedia
by Jose A.gaton R. Sibal, p. 3.l1, citing In re Kay Villegas
Kami, Inc., 35 SCRA 429)
2. CHARACTERISTICS OF AN EX POST FACTO LAW
The characteristics of an ex post facto law are the following:
l. That it relates to criminal matters;
2. That it is retroactive in its operation;
3. That it alters the situation for the accused party to his
disadvantage (Cooley's Const. Law, 8th ed., 542);
4. lts enforcement is prejudicial to the accused.
POLITICAL LAW AND THE CONSTITUTION 199
OF THE REPUBLIC OF THE PHILIPPINES
3. SCOPE ANO APPLICABILITY OF THE PROHIBITION AGAINST
EX POST FACTO LAW
The prohibition applies only to:
l. Criminal legislation which affects the substantial right
to the accused (Tolentino vs. Angeles, 99 Phil. 309, 318;
Santos vs. Secretary of Public Works and Commissiona,
C-16049, March 18, 1967);
2. Criminal procedural law prejudicial to the accused.
4. WHAT IS A BILL OF ATTAINOER?
It is ~ac.t which inflicts punishment without judicial
trial. (Cunning vs. Missouri, 4 Wall. 277, 323; 18 L. ed., 356-363;
People vs. Carlos, 78 Phil. 535, June 30, 1947; People vs. Terrer, 48
SCRA 382 and 397, Dee. 27, 1972)
5. CHARACTERISTICS OF BILL OF ATTAINOER ANO BILL OF
PAINS ANO PENALTIES
l. They are convictions and sentences pronounced by the
legislative department, instead of the judicial depart-
ment;
2. The sentence pronounced and the punishment inflicted
are determined by no previous law or fixed rule; and
3. The investigation into the guilt of the accused, if any such
were made, was not necessarily or generally conducted
in his presence or that of his counsel, and no recognized
rule of evidence governed the inquiry. (Ex Parte Garland,
4 Wall. 388, 18 L. ed. 366)
PART IV
THE FUNOAMENTAL ANO INHERENT
POWERS OF THE STATE
1. WHAT ARE THE FUNOAMENTAL ANO INHERENT POWERS
OF THE STATE?
They are the following: (l) police power; (2) power of eminent
domain; and (3) power of taxation.
200 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 201.
OF THE REPUBLIC OF THE PHILIPPINES

2. f:XPLANATION OF EACH POWER 4. THE THREE POWERS DIFFER IN THE FOLLOWING

A. POLICE POWER ) l
CODE: N- P - E - R
'
It is the sovereign power to promote and protect the generai N - ature (As to nature of compensation)
weifare. It is the "most pervasive and the Ieast limitabie of the
P- roperty (As to nature of property)
three powers of the State (Ynot vs. Intermediate Court of Appeals,
148 SCRA 659), the most essentiai, consistent and illimitabie which E - xercise of power (As to how the power is exercised)
enabies the State to prohibit ali hurtfui things to the comfort, safety
R - eguiated (As to w ha,' is regulated)
and weifare of society." (Lozarro vs. Martinez, 146 SCRA 323)
If is aiso referred to as the law of overwhelming necessity.
AS TO NATURE OF COMPENSATION
B. POWER OF EMINENT DOMAIN In Police Power - The compensation of the person subjected
It is an inherent power of the State that enabies it to forcibiy
to police power is the intangibie aitruistic feeling that he has
contributed to the generai weifare.
acquire private property, which is intended for public use, upon
the payment of just compensation to the owner. In Eminent Domain and Taxation - There is full and just
compensation of the property taken.
C. POWER OF TAXATION
In Taxation- There is corresponding protection and pubiic
It is the inherent power of the State to raise revenues to defray improvement for the taxes paid.
the expenses of government or for any public purpose. This can be
done through the imposition of burdens or imposition on persona, AS TO NATURE OF PROPERTY
properties, services, occupations or transactions.
In Police Power - Police power invoives destruction and
confiscation of property which are noxious.
3. SIMILARITIES OF THE THREE INHERENT POWERS OF THE
STATE
In Eminent Domain and Taxation - The property taken is
for pubiic use.
CODE: I - I - I - E-L
AS TO HOW THE POWER IS EXERCISED
I - nterference (They are the three methods by which the
State interferes with private rights). Police Power and Taxation - They are inherentiy exercisabie
oniy by the government.
I - nherent (They are inherent in the State and they may be
exercised by the State without the need of express Eminent Domain - It may be exercised by private entities
constitutional grant) upon valid deiegation.

I- ndispensabie and indestructibie (They are not only

necessary but also indispensable and indestructible as the AS TO WHAT IS REGULATED
State itself) In Police Power - It regulates Iiberty and property.
E - quivaient compensation (They presuppose equivalent In Eminent Domain and Taxation - They are addressed to
compensation) private rights oniy.
L - egisiative in character (They are exercised primarily by Bail is the security given for the reiease of a person in custody
the legislative) of the Iaw, furnished by him or a bondsman, conditioned upon his
 T

202 INTRODUCTION TO LAW POLITICAL LAW AND THE CONSTITUTION 203

OF THE REPUBLIC OF THE PHILIPPINES

appearance before any court as required under the conditions Q - What is treason?
hereinafter specified. (Section l, Rule 114, Rules of Court) A - It is a crime committed by any person who, owing allegiance
f l
Bail may be given in the form of corporate surety, property i to the government of the Philippines, levies war against it or
bond, cash deposit or recognizance. (lbid.) adheres to its enemies, giving them aid and comfort. (Article
114, Revised Penal Code) '
PARTV Q - What is bribery?
BRIEF DISCUSSION OF IMPEACHMENT A - lt is a crime committed by any public officer who shall agree
to perform an act, whether or not constituting a crime, or
Q - What is impeachment? refrain from doing an act which he is officially required to do
in connection with the performance of his official duties, in
A - It is ,.a m!;lthod of national inquest into the conduct of public consideration of any offer, promise, gift or present received by
men. It is also referred to as an extraordinary process of him personally or through the mediation of another, or who
removal exercised by the legislature over a selected member shall accept gifts offered to him by reason of his office. (Articles
of officials. 210-211, Ibid.)
Q - Who are the impeachable officials under the 1987
Q - What are other high crimes?
Constitution?
A - They refer to those offenses which "like treason and bribery,
A - l. President;
are of so serious and enormous a nature as to strike at the
2. Vice-President; very life or the orderly workings of the government."
3. Members of Supreme Court; According to Justice lsagani Cruz, rape and murder,
4. Members of Constitutional Commissiona. (Section 2, although as serious as treason and bribery, may be probably
Article II, 1987 Constitution) excluded from the definition.

Q - What are the grounds for impeachment?
A- The grounds for impeachment are:
l. Culpable violation of the Constitution;
2. Treason;
3. Graft and Corruption;
4. Other high crimes, or betrayal of public trust.
Q - What is culpable violation of the Constitution?
A - It is defined as wrongful, intentional or willful disregard of
the fundamental law. The act must be deliberate and
motivated by bad faith to constitute a ground for impeachment.
Hence, a mere mistake in the proper construction of the
Constitution cannot be considered a valid ground for impeach-
ment.
Q - What is graft and corruption?
A- Th~y are enumerated in the Anti-Graft and Corrupt Practices
Act, which was in force at the time of the adoption of the
Constitution. Section 3 of the Republic Act No. 3019, as
amended, provides as follows:
a) An act of persuading, inducing, or influencing another
public officer or tolerates such acts which are tantamount
to the violation of the rules and regulations of a
competent authority or on those susceptible to the latter's
official duties.
b) Directly or indirectly requests or accepts gift or any other
form which benefits himself or another person in
connection with any transaction or contract between the
Government and the other party within which he may
legally intervene.
204 INTRODUCTION TO LAW
c) Directly or indirectly requesting or receiving any gift,
present or other pecuniary or materia! benefit, for himself
or for another, from any person for whom the public
officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any Government permit
or license, in consideration for the help given or to be
given, without prejudice to Section thirteen of this Act.
d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof
or within one year after its termination.
e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarrant-
ed benefit, advantage or preference in the discharge of
his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable
negligence. These provisions shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable
time on any matter pending before him or for the purpose
of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material
benefit or advantage, or for the purpose of favoring his
own interest of giving undue advantage in favor of or
discriminating against any other interested party.
g) Entering, on behalf of the government, into any contract
or transaction manifestly and grossly disadvantageous
to the same, whether or not the public officer profited or
will profit thereby.
h) Directly or indirectly having a financial or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or
act requiring the approvai of a board, panel or group of
~ POLITICAL LAW AND THE CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
205
l
Jl! which he is a member, and which exercises discretion in
such approvai, even if he votes against the same or does
not participate in the action of the board, committee,
•,1!,
panel or group.
~'JIT
.i'•
Interest for personal gain shrul be presumed against
those public officers responsible for the approvai of
.~1;
manifestly unlawful, inequitable, or irregular trans-
actions or acts by the board, panel or group to which they
belong.
j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified
for or not legally entitled to such license, permit,
privilege, or advantage, or of mere representative or
dummy of one who is not so qualified or entitled.
:~ k) Divulging valuable information of a confidential
i~
'li,, character, acquired by reason of his office or by him on
.}
l•
account of his official position to unauthorized persons,
or releasing such information in advance of its authorized
release date.
"The person giving the gift, present, share,
percentage or benefit referred to in subparagraphs (b)
and (c); or urging the divulging or untimely release of
the confidential information referred to in subparagraph
(k) of this section shall, together with the offending
officer, be punished under Section 9 of this Act and shall
· be permanently or temporarily disqualified, in the
discretion of the Court, from transacting business in any
form with the government."
Q - What is betrayal of public trust?
A- Is a new ground added by the Constitutional Commission
presumably to cover other ali manner of offenses unbecoming
a public functionary but not punishable by the criminal
statutes. '
EXAMPLE:
Inexcusable negligence of duty, tyrannical abuse of
authority, breach of official duty by malfeasance or,
misfeasance, cronyism, favoritism, obstruction of justice.
206 INTRODUCTION TO LAW
Q - What is the procedure of impeachment?
A- Section 3, Article 11 of the 1987 Constitution provides for the
procedure of impeachment. These are the foliowing rules:
l. The House of Representatives shali have the exclusive
power to initiate ali cases of impeachment by a vote of 1/
3 of its members.
2. The Senate has the sole power to try and decide ali cases
of impeachment case and "no person shali be convicted
without the concurrence oftwo-thirds of ali the members
of the Senate."
Q - Who can file a complaint for impeachment?
A- Section 3(2), Article XI, states that "a verified complaint for
impeachment may be filed by (a) any Member of the House of
Representatives or (b) by any citizen upon a resolution of
endorsement by any Member thereof."
Procedure:
l. Said resolution of endorsement shali be included in the
Order of Business within ten (10) session days, and
referred to the proper Committee within three (3) session
days thereafter.
2. The Committee, after the hearing, and by majority vote
of all its Members, shali submit its report to the House
within sixty (60) session days from such referral, together
with the corresponding resolution.
3. The resolution shall be calendared for consideration by
the House within ten (10) session days from receipt
thereof.
Q - Can an impeachment proceeding be initiated against
the same official more than once within a period of one
year?
A- No. Section 3(5) provides that "No impeachment proceedings
shali be initiated against the same official more than once
within a period of one ye~r." This is intended to prevent
impeachment from beginning an instrument of mere harass-
ment.
POLITICAL LAW AND THE CONSTITUTION 207
iJj OF THE REPUBLIC OF THE PHILIPPINES
Q - Who has the sole power to try and decide ali cases of
~
;.1
!l!
w i
impeachment?
f!
~l 1 A- Section 3(6), Article 11 of the 1987 Constitution provides as
.~ !i foliows:
"The Senate shall have the sole power to try and decide
··l all cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
j ofthe Philippines is on trial, the Chief Justice ofthe Supreme
Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the
members of the Senate."
Q - What is the nature of the impeachment proceedings?
A- Justice Isagani Cruz said: "Impeachment proceedings are in
a sense of judicial and penal in character. Hence, the
Constitutional rights of the accused as guaranteed in Article
ft; III, such as the right to due process and against self-
'.fii incrimination, are available in these proceedings. The Rules
;:r of Court, while not strictly applicable as the Congress is not a
'l
court of justice, are nonetheless observed in the conduct of
the trial. As in ordinary criminal actions, proof beyond
reasonable doubt is necessary for conviction."
On the basis of the ongoing impeachment trial, I am more
inclined to submit that while impeachment proceeding is in a
sense judicial in character, it is not necessarily penai in
character for i t is clear that in case of conviction of President
Estrada, he shall be punishable only by:
l. Removal from office; and
2. Disqualification to hold any office under the Republic of
the Philippines. (Section 3[7], Article XI of the 1987
Constitution)
The said penalty is more of a penalty in an
administrative proceedings than in a criminal proceeding.
Section 3(7), Article XI provides in full:
"Judgment in cases o{ impeachment shall not extend
further than removal f!"om office and disqualification to
hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject
to prosecution, trial and punishment according to law."
208 INTRODUCTION TO LAW
The fact that the last sentence of Section 3(7),
provides for a situation where a party convicted "shall
be nevertheless liable and subject to prosec\ltion trial,
and punishment according to the law" does not make
impeachment a criminal proceeding because it is clear
that it is only in case of his conviction that President
Estrada shall be liable and subject to prosecution, trial
and punishment. It is only from there when the President
will be subject to a criminal proceeding.
Q - What rules apply in an impeachment proceeding?
A- The rules of the present Senate. The Rules of Court shall
· supplement the rules of the Senate whenever it is practicable.
Q - What is needed in order to convict the person subject
ofimpeachment?
A- Section 3(6) "x x x No person shall be convicted without the
concurrence of two-thirds of ali the members of the Senate."
Q - What is the effect of a judgment in case of impeach-
ment?
A - (l) Sectlon 7(3), Article XI, specifies the following effects:
a. Removal from office;
b. Disqualification to hold any office under the Republic of
the Philippines;
c. In addition, the party convicted shall nevertheless be
liable and subject to prosecution, trial and punishment
according to law.
Q -C an President Estrada be prosecuted in case be is
acquitted?
A- No, because the last sentence of Section 3(7), Article XI, states
that it is only in case of his conviction by the impeachment
court that he shall be liable to prosecution, trial and
punishment according to law. This means that if he is
acquitted, he cannot be liable and subject to prosecution, trial,
and punishment.
Q -In case President Estrada case convicted in the im-
peachment proceeding and thereafter criminally
prosecuted for the offense which warranted bis
POLITICAL LAW AND THE CONSTITUTION 209
OF THE REPUBLIC OF TRE PHILIPPINES
··il
conviction on impeachment, can be plead the defense
l of double jeopardy?
fti
:l!
A- No. As already stated, the penalty which the Senate may
impose shall be limited to removal from office and
disqualification to hold any office under the Republic of the
Philippines. This penalty is beyond the reach of the President's
power of executive clemency, but does not piace the offense
which wa'rranted his conviction on impeachment, the officer
cannot plead the defense of double jeopardy.
Q - If President Estrada resigned before the rendition of
judgment by the impeachment court, does bis
resignation piace him beyond reach of impeachment for
offenses committed during bis tenure?
A- No. Reason: While it is true that he is already resigned and
can no longer be removed from his office, there is stili a penalty
which can be imposed even after his resignation and that is
if the penalty of "disqualification to hold any office under the
lr Republic of the Philippines."
•f!
,ir
Q - During the process of impeachment trial, can President
~' :
Estrada be suspended pendente lite?
A- This has no precedent in our jurisdiction. I t is my opinion
that the penalty of preventive suspension pendente lite may
be imposed for the following reasons:
l. As aforementioned, the impeachment trial is judicial and
administrative in character because precisely of the
penalty provided in Section 3(7), Artide XI;
2. The purpose of suspension pendente lite is precisely to
prevent the officer sought to be suspended from possibly
using his influence against any and ali officials of the
government and thereby help him influence the outcome
of the proceeding. It is for this reason that suspension
pendente lite may be justified.
In the U.S., this was raised during the deliberation of
the Constitutional Convention of 1887 (when a proposal was
submitted to provide for such preventive suspension). This was
rejected for being considered an unnecessary molestation.
As we see it now, it cannot be considered an "unnecessary
molestation." It is considered necessity to protect the interest
210 INTRODUCTION TO LAW
ofthe greater number ofFilipino people considering the gravity
of the charges and the offenses committed.
Q -Is the judgment of Congress in an impeachment
proceeding subject to judicial review?
A - As a rule, it is not subject to judicial review precisely because
· of the Constitutional provision that the Senate has the "sole
power to try, and decide ali cases of impeachment."
However, the courts may annui the proceedings if there
,,
is a showing of a grave abuse of discretion committed by the
Congress or of non-compliance of the procedura! requirements
of the Constitution.
EXAMPLE:
l. When the charges are instituted without a verified
complaint; or by less than one-third (113) of ali the
members of the House of Representatives; or where the
judgment of conviction is supported by less than a two-
thirds (2/3) vote in the Senate.
Q - Can the subject of conviction in the impeachment be
subject to the pardoning power of the President?
A- It is not subject to the pardoning power of the President.
However, if the convicted official is prosecuted later on
in an ordinary criminal action and later on found guilty, the
decision may be the subject of pardon by the President.
Q - Section 3(6), Article XI, states that no person shall be
convicted without the concurrence of two-thirds of all
the members of the Senate. Does this referto two-thirds
of twenty-four or two-thirds of twenty-two?
A - The Constitution merely states "two-thirds of ali the Members
of the Senate without any specification as to whether it is
two-thirds of the regular membership of twenty-four or two-
thirds of the present members of the Senate."
This will be a test case in the Supreme Court.
However, the old case of Avelino vs. Cuenco gives us a
guide on what constitutes a quorum in the Senate.
POLITICAL LAW AND THE CONSTITUTION 211
OF THE REPUBLIC OF THE PHILIPPINES
In the said case of Avelino vs. Cuenco, then Senate President
Avelino motu proprio adjourned a session of the Senate leaving
twelve (12) other Senators in the session hall. The twelve (12)
Members continued the meeting and replaced Senate President
Avelino with Senator Cuenco as acting President. Senator Avelino
contended that Senator Cuenco was not validly elected because the
twelve (12) Senators did not constitute a majority, or a quorum of
the twenty-four-man Senate.
The Supreme Court ruled that twelve (12) Senators were
sufficient to constitute a quorum thereby using the principle of
majority of twenty-three (23), and not twenty-four (24) Senators.
The reason given by the Supreme Court is that one Senator
was then outside of the Philippines being then in the U.S. and for
this reason, he is therefore outside the coercive jurisdiction of the
smaller number of the Senators who could adjourn from day to day
and compel the attendance of absent members in such manner and
under such penalties as the Senate might provide.
There is more reason that this doctrine will be held applicable
because Justice Marcelo Fernan is not only outside of Philippine
territory. He already died and therefore he cannot in any way be
capable of voting in the first piace.
In the case of Gloria Macapagal-Arroyo, she was already
elected Vice-President of the Republic of the Philippines and for
this reason she is no longer capable to participate in the impeach-
ment proceeding as a Senator and therefore no longer capable to
vote.
The actual reality is that the present membership of the
Senate is only twenty-two (22) and therefore the constitutional
requirement ofconcurrence oftwo-thirds(2/3) should be two-thirds
(2/3) of the present members of the Senate who are actually
participating in the impeachment proceeding.
As a matter of fact, on the basis of the submission, I may
even submit that Senator Barbers who is not actually participating
in the impeachment trial may not be able to be included because
he is outside not only of the territorial jurisdiction of the Senate
but also outside the coercive jurisdiction of the smaller number of
Members.
 JIl'
,i l
CRIMINAL LAW 213

1
(13) What is illiteracy?
(14) Who are criminally liable?
Chapter XIV (15) Who are considered principals, accomplices, and
accessories?

CRIMINAL LAW (16) Points to remember

(17) Enumeration of all circumstances that modify or

.i·'.·l'
' affect criminal liability
IMPORTANT TOPICS IN THIS CHAPT:ER:
(a) Article 11 Justifying circumstances
l. Historical background
(b) Article 12 Circumstances which exempt ·
(a) Classica! school of thought from criminalliability
(b) Positivist school of thought (c) Article 13 - Mitigating circumstances
3. Definition of Criminal Law (d) Article 14 - Aggravating circumstances
4. Basic principles of Criminal Law (e) Article 15 - Their concept
5. Who incurs criminalliability? 8. Modification of the penalty for the violation of B.P. Blg.
6. Stages in the commission of felonies 22
7. Notes
,~.
DISCUSSION
(l) Circumstances that modify or affect criminal i!F
liability ur'l'' l. HISTORICAL BACKGROUND:
(2) Six justifying circumstances
'l;
"il

\, Our revised Penai Code was based on the Spanish Penai Code
(3) Important distinction to remember
of 1870. lt is based on the classica! school of thought, as
(4) Burden of proof distinguished from the positivist school of thought.
(5) The defendant must rely on the strength of his l! Classical School of Thought - This school of thought
evidence assumes that men have free will: that they know what is right and
(6) Effect of justifying and exempting circumstances i'
what is wrong; and as rational beings, they are guided by thought
tfk that a crime carries with it a corresponding penalty.
(7) Mitigating circumstances
lf~ Positivist School ofThought- This school ofthought views
(8) Aggravating circumstances il

\!! a criminal merely as a sick man who needs reformation and cure
(9) Kinds of aggravating circumstances instead of punishment.
(10) What should be alleged and proven?
f
'·
(11) Alternative circumstances CRIMINAL LAW
(12) What is habitual intoxication?
l t is that branch of public law which defines crimes, treats of
their nature and provides for their punishment.
214 INTRODUCTION TO LAW
BASIC PRINCIPLES OF CRIMINAL LAW
l. There is no crime when there is no law punishing it. In
other words, any and ali offenses must be defined by law.
2. As a rule, penallaws are prospective in effect.
3. Penai Iaws and those of public security and safety shali
be obiigatory upon ali who Iive or sojourn in Philippine
territory subject to the principles ofinternationaliaw and
to treaty stipulations.
4. As a ruie, our Revised Penai Code shali be enforced not
oniy within the Phiiippine Archipeiago, including its
atmosphere, its interior waters and maritime zone, but
aiso outside of its jurisdiction, against those who:
(a) Should commit an offense while on a Philippine ship
or airship;
(b) Should forge or counterfeit any coin or currency note
of the Philippine Islands, or obligations and securi-
ties issued by the Government of the Philippine
Isiands;
(c) Shouid be Iiable for acts connected with the
introduction into these islands of the obiigations and
securities mentioned on the preceding number;
(d) While being public officers or empioyees, shouid
commit an offense in the exercise of their functions;
or
(e) Shouid commit any of the crimes against nationai
security and the law of the nations, defined in Title
One of Book Two of this Code.
EXCEPTION:
Except as provided in treaties and laws of preferentiai
application.
WHO INCURS CRIMINAL LIABILITY?
Art. 4. Criminal Liability - Criminai liability shall be
incurred:
l. By any person committing a felony (delicto) although the
CRIMINAL LAW 215
wrongfui act done be different from that which he
intended;
2. By any person performing an act which would be an
offense against persons or property, were it not for the
inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual
means.
STAGES IN THE COMMISSION OF FELONIES
Attempted - There is an attempt when the offender
coìnmences the commission of a felony directly by overt acts, and
does not perform ali the acts of execution which should produce
the felony by reason of some cause of accident than his own
spontaneous desistance. (Art. 6, third paragraph, Revised Penal
Code)
Frustrated - It is frustrated when the offender performs
all the acts of execution which would produce the felony as a
consequence, but which, nevertheless, do not produce it by reason
of causes independent of the will of the perpetrator. (Art. 6, 2nd
paragraph, RPC)
Consummated - It is consummated when ali the elements
necessary for its execution and accomplishment are present. (Art.
6, 2nd paragraph, RPC)
NOTES:
l. ctrcumstances that modify or affect criminal liability
- The circumstances modifying or affecting criminalliability
are the following:
(a) Justifying Circumstances (Art. 11, RPC)
(b) Exempting Circumstances (Art. 12, RPC)
(c) Mitigating Circumstances (Art. 13, RPC)
(d) Aggravating Circumstances (Art. 14, RPC)
(e) Alternative Circumstances (Art. 15, RPC)
2. Six (6) justifying circumstances - The six (6) justifying
circumstances are as follows:
(a) Self-defense;
216

(b)
INTRODUCTION TO LAW

Defense of relatives;
1 (jl
2.
CRIMINAL LAW

If the actor succeeds in proving the exempting

217

(c) Defense of strangers; circumstance he/she invokes, he/she is relieved from

criminal Iiability but not from civil Iiability under Art.
(d) Avoidance of greater evil or injury; 101 of the Revised Penai Code.
jfj

(e) Fulfillment of duty or exercise of a right;
(f) Obedience to a lawful order.
3. Important distinction to remember- Ifthere is a circums-
tance justifying the act of the accused, he is exempt from both
civil and criminal liability. An exempting circumstance frees
the accused only from criminal liability but not from civil
liability.
4. Burden ofproof- IfA killed B and he admitted this with a
qualification that he was merely compelled to do it in the
course of defending himself, he has the burden to prove the
element of self-defense.
5. Defendant must rely on the strength of his evidence -
In proving self-defense, the defendant must rely on the
strength of his own evidence and not on the weakness of the
prosecution; for even if it were weak, it could not be disbelieved
after the accused had admitted the killing.
6. Detailed distinction betweenjustifying and exempting circums-
tances:
Justifying Circumstances:
l. The act is voluntary but there is no malice because the
actor acted in good faith, being compelled by some lawful
motive.
2. If the actor succeeds in proving the justifying circums-
tances he/she invokes, he is relieved from both criminal
and civil liability.
Exempting Circumstances:
l. There is likewise no malice because the act is not
voluntary, or the actor has no intelligence, or the act
complained of was accidentally done or the omission was
avoidable.
··~ However, there is no civil liability attached to the exempting
circumstances mentioned in paragraphs 4 and 7 of Art. 12 of the
Revised Penal Code. ·
NOTE:
"Article 101 of the Revised Penai Code provides as follows -
The exemption from criminai liability established in subdivisions
l, 2, 3, 5, and 6 of Article 12 and in subdivision 4 of Article 11 of
this Code does not include exemption from civiliiability, which shall
be enforced subject to the following rules:
First: In case of subdivisions l, 2, and 3 ofArticle 12 of civil
liability for acts committed by an imbecile or insane person, and
by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall
devolve upon those having such person under their legal authority
or contro!, uniess it appears that there was no fault or negiigence
on their part.
Second: In cases falling within subdivision 4 of Article 11, the
persons for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have
received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably determined,
even approximateiy, or when the liability is also attached to the
Government, or to the majority of the inhabitants of the town, and,
in ali events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be
made in the manner prescribed by speciai laws or regulations.
Third: In cases falling within subdivisions 5 and 6 of Article
12, the persons using violence or causing the fear shall be primarily
liable and secondarily, or if there be no such persons, those doing
the act shall be liabie, saving always to the latter that part of their
property exempt from execution.
218 INTRODUCTION TO LAW
7. Mitigating Circumstances - These are any of the
circumstances mentioned in Article 13 of the Revised Penai
Code which, if proven, reduces the penalty. Generai or specific
mitigating circumstances may reduce the penalty to. the
minimum period or it may be lowered by one degree as
provided in Articles 62 and 64 depending on the presence of
generic or specific aggravating circumstances which offset
them. Special or privileged mitigating circumstances may
reduce the penalty by one or two degrees as provided in
Articles 67 and 69 of the Revised Penai Code (i.e., minority
and incomplete justification and exemption).
8. Aggravating Circumstances - They are circumstances
which, if proven, increase the penalty because they indicate
the unusual criminality or perversity and dangerousness of
the offender.
9. Kinds of aggravating circumstances:
(a) Generic or Ordinary - The effect of generic aggra-
vating circumstances is inherent in the crime, not
necessarily qualifying (i.e., Trespass in robbery with
force).
(b) Qualifying - The effect of a qualifying aggravating
circumstance is not oniy to give the crime its proper and
exciusive name but aiso to piace the author thereof in
such a situation as to deserve no other penaity than that
specially prescribed for said crime (i.e., treachery). The
presence of this quaiifying aggravating circumstance
makes the killing murder instead of homicide.
NOTE:
(c) lnherent- These are circumstances which are inherent
in the crime. Hence, trespass is inherent in the crime of
robbery with force upon things. Abuse of con{idence is
inherent in the crime of estafa. Likewise, relationship is
inherent in the crime of parricide.
lO. What should be alleged and proven -A generic aggravat-
ing circumstance may be proven during the triai even if it is
not alleged in the information and even if there is an objection
being raised by the defense. However, a qualifying circums-
/,W
CRIMINAL LAW 219
tance must be alleged in the information because it is an
integrai part of the offense. If the same is not alleged in the
information but proven in the triai, it cannot be used in
. changing the Iegai character of the offense charged and
convicting the accused of a higher offense. In such a case, it
can oniy be treated as a generic aggravating circumstance.
11. Alternative Circumstances -Alternative circumstances are
those which must be taken into consideration as aggravating
or mitigating according to the nature and effects of the crime
and the other conditions attending its commission. They are:
(l) reiationship; (2) intoxication; and (3) the degree ofinstruc-
tion and education of the offender.
Example: IfA is accidentally drunk at the time he shot
B, his drunkenness is considered as a mitigating circumstance.
But if N.s drunkenness is intentionai or habituai, this is consi-
dered as an aggravating circumstance.
WHAT IS HABITUAL INTOXICATION?
A habituai drunkard is one given to intoxication by excessive
use of intoxicating drinks. Habit shouid be actuai and confirmed.
It is unnecessary that it be a matter of daily occurrence. It Iessens
individuai resistance to evii thought and undermines will power,
making its victim a potential evii-doer.
WHAT I.S ILLITERACY?
Illiteracy means Iack of instruction and Iow intelligence. Mere
illiteracy is not sufficient to constitute the mitigating circumstance
of Iack of instruction. There must aiso be Iack of intelligence.
Example: IfA is unschooied and cannot sign his name, this
does not necessarily mean that A is entitled to a mitigating
circumstance of Iack of instruction if it is proven that he is
exceptionally intelligent and mentally aiert to the extent that he
realizes the full consequences of his acts. On the other hand, ifA is
abie to sign his name but he is so densely ignorant and of Iow
intelligence that he does not reaiize the full consequence of his
criminai act, he may still be entitled to the benefit of a mitigating
circumstance.
 ;~l

220 INTRODUCTION TO LAW :, CRIMINAL LAW 221

l'
Il
12. Who are criminally liable? -Artide 16 of the Revised '
f
, l
WHO ARE ACCESSORIES?
Penai Code answers this question. It provides as follows: l l Article 19. Accessories are those who, having knowiedge of
Article 16. The following are criminally liabie for grave l the commission of the crime, and without having participated
and Iess grave feionies: ;i l therein, either as principais or accomplices, take part subsequent
l to its commission in any of the following mann~rs:
l. Principais;
l. By profiting themseives or assisting the offender to profit
2. Accomplices; and
by the effects of the crime.
3. Accessories.
2. By conceaiing or destroying the body of the crime, or the
The following are criminally Iiabie for light feionies:
l. Principais; jl 3.
effects or instruments thereof, in order to prevent its
discovery.
By harboring, concealing, or assisting in the escape of
2. Accomplices. n1
·''
:H, the principai of the crime, provided the accessory acts
with abuse of his public functions or whenever the author
13. Who are considered principals, accomplices and of the crime is guilty of treason, parricide, murder, or an
accessories? - They are those defined in Artides 17, 18 and i' attempt to take the life of the Chief Executive, or is
19 of the Revised Penai Code, thus: ~~:
[ti
known to be habitually guilty of some other crime.
Ifi

Ì·
WHO ARE PRINCIPALS? i POINTS TO REMEMBER:
'l r

Article 17. The following are considered principais: ·\ i

(P
l. Nulla Poene Sine Lege - There is no crime when there
is no Iaw punishing it.
l. Those who take a direct part in the execution of the act;
~ rl
1.1
·
2. Those who directly force or ihduce others to commit it; ~~~l
.L ,
2. A person, to be guilty of a crime, must commit that crime
himseif or he must, in some manner, participate in its
3. Those who cooperate in the commission of the offense by 'lf
!,i commission or in the fruits thereof.
another act without which it wouid not have been n 3. - Oniy naturai persona are criminally liabie. ·Judiciai
accomplished.
persona are not criminally liabie but the President or
other officers of the corporation may be criminally liabie
CODE: in those instances when they have knowingiy permitted
or committed crimes such as estafa and faisification.
l. Principai by direct participation
4. There are no accessories in light feionies.
2. Principai by inducement
3. Principai by cooperation ARTICLES 11, 12, 13, 14, AND 15 ARE HEREIN QUOTED IN
FULL:
WHO ARE ACCOMPLICES?
Art. 11- Justifying Circumstances
Article 18. Accomplices are those persona, who, not being
Art. 12- Exempting Circumstances
induded in Artide 17, cooperate in the execution of the offense by
previous or simuitaneous acts. Art. 13- Mitigating Circumstances
222 INTRODUCTION TO LAW
Art. 14 - Aggravating Circùmstances
Art. 15- Alternative Circumstances
CODE:
J - ustifying
E- xempting
M - itigating
A- ggravating
A-lternative
Art. 11. Justifying circumstances. - The following do not
incur any criminal liability:
liability. - The following are exempt from criminalliability:
l. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur:
First: Unlawful aggression;
Second: Reasonable necessity of the means employ-
ed to prevent or repel it;
Third: Lack of sufficient provocation on the part of
the person defending himself.
2. Anyone who acts in defense of the person or rights of his
spouse, ascendants, descendants, or legitimate, natural,
or adopted brothers or sisters or of his relatives by affinity
in the same degrees, and those by consanguinity within
the fourth civil degree, provided that the first and second
requisites prescribed in the next preceding circumstance
are present, and the further requisite, in case the
provocation was given by the person attacked, that the
one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites
mentioned in the first circumstance of this artide are
present and that the person defending be not induced by
revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does
an act which causes damage to another, provided that
the following requisites are present:
CRIMINAL LAW 223
First: That the evil sought to be avoided actually
exists;
Second: That the injury feared be greater than that
done to avoid it;
l
Third: That there be no other · practical and less
harmful means of preventing it.
5. Any person who acts in the fulfillment of a duty or in
the lawful exercise of a· right or office.
6. Any person who acts in obedience to an order issued by
a superior for some lawful purpose.
Art. 12. Circumstances which exempt from criminal
l. An imbecile or an insane person, unless the latter has
acted during a lucid interval.
When the imbecile or an insane person has com-
mitted an act which the law defines as a felony (de lieto),
the court shall order his confinement in one of the
hospitals or asylums established for persons thus
afllicted, which he shall not be permitted to leave without
first obtaining the permission of the same court.
2. A person under nine (9) years of age.
3. A person over nine (9) years of age and under fifteen (15),
unless she has acted with discernment, in which case,
such minor shall be proceeded against in accordance with
the provisions of Artide 80 of this Code.
When such minor is adjudged to be criminally
irresponsible, the court, in conformity with the provisions
of this and the preceding paragraph, shall commit him
to the care and custody of his family who shall be charged
with his surveillance and education; otherwise, he shall
be committed to the care of some institution or person
mentioned in said Artide 80.
4. Any person who, while performing a lawful act with due
care, causes an injury by mere accident without fault or
intention of causing it.
224 INTRODUCTION TO LAW
5. Any person who acts under the compulsion of an
irresistible force.
6. Any person who acts under the impulse of an uncontroll-
able fear of an equal or greater injury.
7. Any person w ho fails to perform an act required by law,
when prevented by some lawful or insuperable cause.
Art. 18. Mitigating Circumstances. - The. following are
mitigating circumstances:
l. Those mentioned in the preceding chapter, when all the
requisites necessary to justify the act orto exempt from
criminalliability in the respective cases are not atten-
dant.
2. That the offender is under eighteen (18) years (Rep. Act
No. 147 amending Art. 80 has reduced the age of 18 to
16. The minor offender who is under 18 is entitled to a
privilege mitigating circumstance [Art. 68], but if he is
16 or over, his sentence will not be suspended [Art. 80]) of
age or over seventy (70) years, In the case of the minor,
he shall be proceeded against in accordance with the
provisions of Artide 80.
3. That the offender had no intention to commit so grave a
wrong as that committed.
4. That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
5. That the act was cominitted in the immediate vindication
of a grave offense, to the one committing the felony
(delicto), his spouse, ascendants, descendants, legitimate,
natural, or adopted brothers or sisters, or relatives within
the same degrees.
6. That of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself
to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to
the presentation of the evidence for the prosecution.
8. That the offender is deaf and dumb, blind, or otherwise
suffering some physical defect which thus restricts his
CRIMINAL LAW 225
means of action, defense, or communication with his
fellow beings.
9. Such illness of the offender as would diminish the
exercise ofthe will-power ofthe offender without however
depriving him of consciousness of his acts.
10. And, finally, any other circumstance of a similar nature
and analogous to those above mentioned.
Art. 14. Aggravating Circumstances. ~ The following are
aggravating circumstances:
l. That advantage be taken by the offender of his public
position.
2. That the crime be committed in contempt ofor with insult
to the public authorities.
3. That the act be committed with insult or in disregard of
the respect due to the offended party on account of his
rank, age, or sex, or that it be committed in the dwelling
of the offended party, if the latter has not given
provocation.
4. That the act be committed with abuse of confidence or
obvious ungratefulness.
5. That the crime be committed in the palace of the Chief
Executive, or in his presence, or where pu,blic authorities
are engaged on the discharge of their duties, or in a place
dedicated to religious worship.
6. That the crime be committed in the nighttime, or in an
uninhabited piace, or by a band, whenever such circum-
stances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall
have acted together in the commission of an offense, it
shall be deemed to have been committed by a band.
7. That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemie or othor
calamity or misfortune.
8. That the crime be committed with the aid of armed men
or persons who insure or afford impunity.
 INTRODUCTION TO LAW
226
That the accused is a recidivist.
9.
A recidivist is one who, a t the time of his trial for
one crime,.shall have been previously convicted by a final
judgment of another crime embraced in the same title of
this Code.
10. That the offender has been previously punished for an
offense to which the. law attaches an equal or greater
penalty or for two (2) or more crimes to which it attaches
a lighter penalty.
11. That the crime be committed in consideration of a price,
reward or promise.
.That the crime be committed by means of inundation,
12.
fire, poison, explosion, stranding a vessel or intentional
damage thereto, derailment of a locomotive, or by the
use of any other artifice involving great waste and ruin.
That the act be committed with evident premeditation.
13.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means
be employed to weaken the defense.
That the act be committed with treachery (alevosia).
16.
There is treachery when the offender commits any
of the' crimes against the person, employing means,
methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk
to himself arising from the defense which the offended
party might make.
17. That means be employed or circumstances brought about
which add ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is
effected by a way not intended for the purpose.
That as a means to the commission of a crime a wall,
19.
roof, floor, door, or window be broken.
That the crime be committed with the aid of persons
20.
under fifteen (15) years of age or by means of motor
vehicles, airships, or other similar means.
CRIMINAL LAW 227
21. That the wrong done in the commission of the crime be
deliberately augmented by causin.g other wrong not
necessary for its commission.
Art. 15. Their concept- Alternative circumstances are those
which must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the other
conditions attending its commission. They are the relationship,
intoxication and the degree of instruction and education of the
offender.
The alternative circumstance of relationship shall be taken
into consideration when the offended party is the spouse, ascendant,
descendant, legitimate, natural, or adopted brother or sister, or
relative by affinity in the same degrees of the offender.
The intoxication of the offender shall be taken into conside-
ration as a mitigating circumstance when the offender has
committed a felony in a state of intoxication, if the same is not
habitual or subsequent to the pian to commit said felony; but when
the intoxication is habitual or intentional, it shall be considered as
an aggravating circumstance.
!t.
f
MODIFICATION OF THE PENALTY FOR
THE VIOLATION OF B.P. BLG. 22
~l
;i
Sec. l. Checks without sufficient funds. - Any person who
makes or draws and issues any check to apply on account or for
value, knowing at the time of issue that h e does not have sufficient
funds in or credit with the drawee bank for the payment of such
check is subsequently dishonored for the same reason had not the
drawee, without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty
(30) days but not more than one (l) year, or by a fine of not less
than but not more than double the amount of the check which fine
shall in no case exceed Two Hundred Thousand Pesos (P200,000.00),
or both such fine and imprisonment at the discretion of the court.
(B.P. Blg. 22, 1st paragraph, RTC)
In Eduardo Vaca vs. Court of Appeals (G.R. No. 181714,
November 16, 1998, 100 SCAD 763, 298 SCRA 656, 664), the
Supreme Court through Mr. Justice Vicente V. Mendoza, modified
the sentence imposed for violation of B.P. Big. 22 by deleting the
228 INTRODUCTION TO LAW

·•
penalty of imprisonment and imposing only the penalty of fine in
an amount double the amount of the check.
Likewise, the case of Rosa Lim vs. People of the Philippines
(G.R. No. 180088, September 18, 2000), the Supreme Court en banc,
Chapter XV
also deleted the penalty of imprisonment and sentenced the drawer
of the bounced check to the maximum of the fine allowed by B.P. REMEDIAL LAW
Big. 22, i.e., P200,000, and concluded that such would best serve
the ends of criminal justice.
IMPORTANT TOPICS IN TWS CHAPTER:
l. The New Rules of Court
(a) Civil Procedure
(b) Provisional Remedies
(c) Special Civil Action
(d) Criminal Procedure
(e) Evidence
2. Different kinds of special civil action, special proceedings
and provisional remedies
(a) Provisional remedies
(b) Special civil action
(c) Special proceedings
(d) Remedies in civil cases
3. Attachment
4. · Preliminary Injunction
(a) Grounds for issuance of preliminary injunction
5. Receivership
6. Replevin
7. Alimony pendente lite
8. Special civil action
(a) Interpleader
(b) Declaratory relief
(c) Certiorari, prohibition, mandamus

229
230 INTRODUCTION TO LAW REMEDIAL LAW 231

(d) Quo warranto (d) Elements of jurisdiction in criminal actions

(e) Eminent domain (e) Distinction between complaint and information
(f) Foreclosure of mortgage (f) How is criminal action commenced
(g) Partition of real estate (h) Duplicity of the offense

(h) Forcible entry and unlawful detainer (i) Where shall a criminal action be instituted and tried

(i) Contempt (j) Who are authorized to conduct a preliminary

investigation
9. Brief explanation of each

l'
(k) Information
10. Special proceedings ll 11. Evidence
(a) Settlement of estate of deceased persons
' (a) Kinds of evidence
(b) Petition for probate of will and issuance of letters
(b) What is the best evidence rule?

li l
testamentary l !
(c) What is the parol evidence rule?
(c) Petition for letters of administration
(d) What is hearsay evidence?
(d) Petition for escheat i
(e) Exceptions to the hearsay rule
(e) Petition for guardianship
(f) Petition for appointment of trustees (f) Rules concerning admission to the practice of la w

(g) Petition for adoption of minors

DISCUSSION
(h) Petition for hospitalization of insane persons
(i) Petition for habeas corpus Remedial law, as the term itself suggests, provides for the
remedies and the procedures to be observed by way of enforcing
(j) Petition for change of name rights and obligations. While substantive law creates rights,
(k) Petition for voluntary dissolution of corporation remedial law provides for the procedure of enforcing said rights.
Judicial approvai of voluntary recognition of minor That makes remedial law more complicated to both law students
(l)
and to law practitioners. For law students, study of remedial law
natura! children
becomes more difficult because experience proves that procedura}
(m) Petition for judicial constitution of family home law can only be more appreciated and understood when a lawyer
(n) Petition for appointment of administrative and/or is involved in the actual application of the legai remedies.
trustee for the estate of absentee Briefly, the New Rules ofCourt are divided into different parta,
(o) Cancellation of entries in the civil registry to wit:

11. Brief explanation of each l. Civil Procedure

12. Criminal procedure 2. Provisional Remedies

(a) Definition
3. Special Civil Actions

(b) Criminal jurisdiction

4. Special Proceedings

(c) How is the court's jurisdiction determined 5. Criminal Procedure

!qj
,,"
232 INTRODUCTION TO LAW REMEDIAL LAW 233

6. Evidente SPECIAL PROCEEDINGS

7. Rules concerning admission to the practice of law l. Settlement of estate of deceased persons
2. Escheat
DISCUSSION OF EACH: 3. Guardianship and custody of children
CIVIL PROCEDURE 4. Trustees
It treats of the enforcement and protection of rights in civil 5. Adoption
cases. There are two (2) kinds of civil action:
6. Rescission and revocation of adoption
(a) Ordinary Civil Action - Example: collection case,
abatement of nuisance, breach of contract. 7. Hospitalization of insane persons

(b) Special Civil Action - Example: Quo warranto, certio- 8. Habeas corpus
rari, mandamus, proh~bition, declaratory relief, partition, 9. Change of name
foreclosure of mortgage, interpleader, eminent domain.
10. Voluntary dissolution of corporation
DIFFERENT KINDS OF SPECIAL CIVIL ACTION, 11. JudiciaJ approvai of voluntary recognition of minor
SPECIAL PROCEEDINGS ANO PROVISIONAL REMEDIES natural (or spurious children)
12. Constitution of family home
PROVISIONAL REMEDIES
13. Declaration of absence and death
l. Attachment
14. Cancellation or correction of entries in the civil registry
2. Preliminary lnjunction
3. Receivership
REMEDIES IN CIVIL CASES
4. Replevin (delivery of personal property)
A person civilly aggrieved may:
5. Alimony pendente lite (support pending litigation)
l. File an action, either an ordinary civil action or a special
éivil action; or
SPECIAL CIVIL ACTION
2. File a special proceeding.
l. Interpleader
2. Declaratory relief and similar remedies They are the remedies which may be availed of by the
petitioner which are temporary in character because they are
3. Certiorari, prohibition, mandamus subject to some modifications that may be ordered when judgment
4. Quo warranto is finally rendered.
5. Eminent domain The provisional remedies mentioned in the Rules of Court are
as follows:
6. Foreclosure of mortgage
l. Attachment
7. Partition
8. Forcible entry 2. Preliminary injunction

9. Contempt 3. Receivership
234 INTRODUCTION TO LAW
r
4. Replevin
5. Alimony pendente lite
EXPLANATION OF EACH:
ATTACHMENT
It is a provisional remedy which is ancillary to a principal
action whereby a plaintiff or any proper party may, at the
commencement of the action or at any time thereafter, have the
property of the adverse party attached or taken into legai custody
as security for the satisfaction of the judgment that may be
recovered.
There are three (3) kinds of attachment, namely:
(a) Preliminary Attachment- An attachment which is
given a t the beginning of an action or during its pendency
or before the finality of the judgment.
(b) Garnishment- An attachment allowing the plaintiff
to reach credits, whether money or property, belonging
to or owned by the debtor or owing to him from someone
who is not a party to the litigation. The latter is, in effect,
ordered to pay the new creditors, not the old creditors.
(c) Final Attachment- An attachment given by the court
to enforce or satisfy a final and executory judgment.
PRELIMINARY INJUNCTION
It is an order granted at any stage of an action prior to the
finality of a judgment requiring a person to refrain from a particular
act or requiring the performance of a particular act.
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
l. That the plaintiff is entitled to the relief deman:ded, and
the whole or part of such relief consists in restraining
the commission or continuance of the acts complained
of, or in the performance of an act or acts either for a
limited period or perpetually.
2. That the commission or continuance of some acts
complained of during the litigation or non-performance
thereof would probably work injustice to the plaintiff.
REMEDIAL LAW 235
3. That the defendant is doing, threatening, or is about to
do, or is procuring or suffering to be done some act
probably in violation of the plaintiff's rights respecting
the subject of the action, and tending to render the
judgment ineffectual. (Section 3, Rule, 58)
RECEIVERSHIP
It is a provisional remedy whereby the court appoints a
receiver to hold the real or personal property in litigation during
its pendency with power to possess, take hold of, control, and to
dispose of the same as may be allowed by the court in proper cases.
WHEN TO APPOINT A RECEIVER?
l. When a corporation has been dissolved, or insolvent, or
in imminent danger of insolvency, or has forfeited its
corporate rights.
2. When the party applying for the appointment of a
receiver has an interest in the property involved which
may be lost, removed, or materially injured.
3. When in a case of foreclosure of a mortgage: (a) the
property is in danger of being wasted or materially
injured and its value is probably insufficient to discharge
the mortgage debt; (b) there was a stipulation for
receivership in the mortgage contract.
4. When there is already a judgment BUT: (a) the property
has to be preserved during the appeal; (b) the judgment
could not be executed; or (c) the judgment obligor refuses
to apply his property in satisfaction of the judgment or
otherwise to make the judgment effective.
5. In all other cases when receivership would be convenient
and feasible. (Section l, Rule 59)
RE PLEVI N
lt is a provisional remedy whereby the plaintiff petitions the
court to compel in the meantime the delivery to him of such personal
property mentioned in his complaint. The plaintiff may ask for this
remedy at the commencemeilt of the action, or at any time before
the answer.
 INTRODUCTION TO LAW
236
Requirements:
l. The plaintiff must show by his own affidavit or that of
some other person who personally knows the fact:
(a) That the plaintiff is the owner of the property
claimed particularly describing it, or is entitled to
the possession thereof;
(b) That the property is WRONGFULLY DETAINED
by the defendant (the cause of detention must be
alleged according to the petitioner's best knowledge,
information and belief);
(c) That it has: (a) not been taken for a tax assessment
or fine pursuant to law; or (b) not seized under
execution or attachment of the property of the
plaintiff, or if so seized, that it is EXEMPT trom
such seizure; and (c) the actual value ofthe property.
(Sec. 2, Rule 60)
ALIMONY PENDENTE LITE
This is also known as support pending litigation. It is a
provisional remedy whereby the plaintiff, at the commencement of
the proper action, or at any time afterwards but prior to final
judgment, may file an application for alimony pendente lite stating
the grounds for the claim and the financial conditions ofboth parties
and shall be accomplished by affidavits, depositions, or other
authentic documenta in support thereof.
SPECIAL CIVIL ACTION
It is an action whereby one party sues another to enforce or
protect a right or to prevent the commission of a wrong by following
special rules of procedure.
The special civil actions are as follows:
l. lnterpleader
2. Declaratory relief
3. Certiorari, prohibition, mandamus
4. Quo warranto
5. Eminent domain
HEMI~DIAL LAW 237
6. Foreclosure of mortgage
7. Partition of real estate
8. Forcible entry and unlawful detainer
9. Contempt
EXPLANATION OF EACH
INTERPLEADER
It is a special civil action whereby a person who has property
in bis possession or an obligation to render, either on whole or in
part, but who claims no interest in the subject matter or whose
interest in whole or in part is not disputed by others, goes to court
and asks that conflicting claimants to the property or obligation be
required to litigate their conflicting claims in order to determine
who is entitled to the same.
DECLARATORY RELIEF
It is a special civil action instituted by any person interested
under a deed, will, contract, or other written instrument, or whose
right are affected by statute, executive order or regulation, or
ordinance before breach or violation thereof in order to determine
any question of construction or validity arising under the
li
(l
instrument or statute and for a declaration of his right or duties
thereunder.
CERTIORARI
It is a special civil action directed against any tribunal, board
,,
i'!'i or officer exercising judicial functions claiming that said tribunal,
'j
board or officer has acted without jurisdiction, in excess of
jurisdiction or with grave abuse of discretion and there is no appeal,
nor any plain, speedy, and adequate remedy in the ordinary course
of law. All these must be alleged by the plaintiff in a verified petition
:filed in the proper court and praying that judgment be rendered
annulling or modifying the proceedings, as the law requires.
PROHIBITION
It is a special civil action directed against any tribunal, corpo-
ration, board or person whether exercising judicial or ministerial
238 INTRODUCTION TO LAW
functions claiming that said tribuna!, corporation, board or persons
acted without jurisdiction or with grave abuse of discretion and
there is no appeal, nor any plain, 'speedy, and adequate remedy
in the ordinary course of law. All these must be alleged by the
plaintiff through a verified petition filed in the proper court and
praying that judgment be rendered commanding the defendant to
desist from further proceedings in the action or matter specified
therein.
MANDAMUS
It is a special civil action directed against any tribuna!,
corporation, board or person claiming that said tribuna!, corpo-
ration, board or person has unlawfully neglected the performance
of an act which the law specifically enjoins as a duty resulting from
an office, trust or station or has excluded another from the use
and enjoyment of the right or office to which such other is entitled
and there is no other plain, speedy, and adequate remedy in the
ordinary course of law. All these must be alleged by the plaintiff
through a verified petition filed in the proper court and praying
that judgment be rendered commanding the defendant immediately,
or at some other specified time, to do the act required to be done to
protect the life of the petitioner and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the defendants.
QUO WARRANTO
It is a special civil action whereby a person claiming to be
entitled to a public office or position files an action against a usurper
challenging the authority of the latter in holding said public office
or position.
KINDS OF QUO WARRANTO
(a) Quo warranto may be brought in the name of the
Republic of the Philippines. Here, the right of the
defendant to the office is passed upon by the court.
(b) Quo warranto proceeding may be brought in the name
of a private person. Here, the plaintiff must prove his
own right. If he cannot prove his own right, the right of
the defendant will not be passed upon by the court.
REMEDIAL LAW 239
(c) Quo warranto may involve a defendant which is a private
perso n.
(d) Quo warranto proceeding may be brought in the name
of a corporation.
l
(e) Quo warranto proceeding may involve an appointive
public office. Here, the issue is the legality of the appoint-
ment and therefore, whoever was legally appointed will
be entitled to occupy the office.
(f) Quo warranto proceeding may involve an elective office.
Here, the issue is the qualification or eligibility of the
candidate.
EMINENT DOMAIN
It is the right of the state or any duly authorized entity to
take private property for public use or purpose provided just
compensation is given and due process is observed.
FORECLOSURE OF MORTGAGE
It is the process by which the mortgagee-creditor is allowed
to have the mortgaged property foreclosed and sold in order that
the indebtedness may be paid out of the proceeds of sai d sale.
KINDS OF FORECLOSURE
l. Judicial foreclosure - This is a special civil action
referred to in Rule 68 of the Revised Rules of Court. AB
the term itself implies, this requires a court litigation.
2. Extra-judicial foreclosure - This is a process of
foreclosure provided in Act No. 3135 as amended by Act
No. 4118. As the term itself implies, this process does
not require court litigation.
PARTITION OF REAL ESTATE
lt is a process of dividing or assigning property owned in
common among the various co-owners thereof in proportion to their
respective interest in the property. Partition may be done judicially
or extra-judicially.
240 INTRODUCTION TO LAW REMEDIAL LAW 241

FORCIBLE ENTRY (9) Petition for habeas corpus

It is a special civil action whereby the plaintiff prays for the (lO)
recovery of materia! or physical possession of real property because
he was deprived of his possession thereof by force, intimidation, (11)
strategy, threat, or stealth. This action must be brought within one (12)
(l) year from the unlawful deprivation. Ifnot brought within one (l)
year, the possession of the property may stili be recovered through
an accion publiciana, not through an action of forcible entry. (13)
(14)
UNLAWFUL DETAINER
It is a special civil action filed by a plaintiff and who prays to (15)
recover the possession of real property from a person unlawfully
withholding possession of the same.
EXPLANATION OF EACH
Petition for change of name
Petition for voluntary dissolution of corporation
Judicial approvai of voluntary recognition of minor
natura! children
Petition for judicial constitution of family home
Petition for appointment of administrative and/or trustee
for the estate of absentee
Petition for correction of entries in the civil registry

CONTEMPT SEITLEMENT OF ESTATE OF DECEASED PERSON

It is a misbehavior committed in the presence of or so near a An estate can be summarily settled in two (2) ways:
judge or court as to obstruct or interrupt the proceeding before the
judge or court, in which case, it is called direct contempt, or it may (l) Extra-judicial settlement of estate by agreement of the
heirs; and
be any other improper conduct tending to degrade or interfere with
the administration of justice, in which case, it is called indirect (2) Summary settlement of estate whose gross value is
contempt. PlO,OOO.OO or less.

SPECIAL PROCEEDINGS EXTRA-JUDICIAL ARRANGEMENT OF THE HEIRS

It is a civil remedy taken to establish the status or right of There are severa! requisites, to wit:
party or to establish a particular fact.
(l) The decedent left no will;
The special proceedings are as follows:
(2) The decedent left no debts (this is presumed ifno creditor
(l) Settlement of estate of deceased persons files a petition within two (2) years after the death of
(2) Petition for probate of will and issuance of letters the deceased) (Last sentence of Section l, Rule 47);
testamentary (3) A public instrument should be filed with the Register of
(3) Petition for letters of administration Deeds;
(4) Petition for escheat (4) All the heirs must be of age, or if they are minors, they
(5) Petition for guardianship should be represented by theirjudicial or legai represen-
tatives duly authorized for the purpose;
(6) Petition for appointment of trustees
(5) Ali the said heirs must agree. lf the heirs disagree, the
(7) Petition for adoption of minors
heirs may do so through an ordinary action of partition
(8) Petition for hospitalization of insane persons (Section 1, Rule 74);
242 INTRODUCTION TO LAW
(6) The parties to an extra-judicial settlement of estate must
file a bond with the Register of Deeds in an amount
equivalent to the value of personal property involved as
certified to under oath by the parties concerned and
conditioned upon the paymeri.t of any just claim filed with
the Register of Deeds (Section 1, Rule 74);
(7) The fact of extra-judicial settlement on administration
shall be published in a newspaper of generai circulation.
However, no extra-judicial settlement shall be binding
upon any person who has not participated or had no
notice thereof.
SUMMARY SETTLEMENT OF ESTATE WHOSE
GROSS VALUE IS P1 0,000.00 OR LESS
(l) There can only be summary settlement of estate if the
gross value of the same is PlO,OOO.OO or less. lf this
requirement is complied with, the heirs may apply to the
competent court, after the regular publication, to proceed
with the summary partition and after paying all the
known obligations, to partition all the property among
the heirs, without appointing an administrator.
(a) Competent Court: Refers to the Court of First
Instance having jurisdiction of the estate. (CFI is
now referred to as RTC).
(b) Publication: The notice about the said summary
settlement shall be published once a week for three
(3) consecutive weeks in a newspaper of generai
publication on the province where the property is
situated.
(c) Hearing: the hearing shall be held not less than
one (l) month or more than three (3) months from
the date of last publication of notice.
(2) There can only be summary settlement regardless of
whether the deceased person died with or without a will,
provided that the gross value of his estate does not exceed
PlO,OOO.OO or less.
REMEDIAL LAW 243
PETITION FOR PROBATE OF WILL ANO
ISSUANCE OF LETTERS TESTAMENTA~Y
Probate is the process of proving before a competent court that
the will of a deceased person was duly executed and that said
decedent possessed testamentary capacity at the time of the
execution of the will and when all these are proved, the will of the
decedent shall be submitted for approvai of the said court.
BASIC POINTS TO REMEMBER
(l) No will shall pass either real or personal property unless
it is provided and allowed in accordance with the rules
of Court. (Art. 838, 1st par., New Civil Code)
(2) There is no prescriptive period for institution of probate
proceedings bE::cause the same is established not primarily
for the interest of the heirs but principally to protect the
expressed wishes of the testator.
(3) The probate of a will is conclusive as to its due execution
and as to the testamentary capacity of the testator but
not as to the validity of any provisions made in the will.
Hence, after a will has been probated by a competent
court, the law will not admit evidence to overthrow the
legai presumption that it is genuine.
PETITION FOR LETTERS OF ADMINISTRATION
Who may petition for the allowance of the will?
Section l, Rule 76 of the New Rules of Court, enumerates the
persons who may file a petition for the allowance of a will and
they are as follows:
(a) Executor;
(b) Devisee or legatee in a will;
(c) Any other person interested in the estate;
(d) The testator himself, may, during his lifetime, petition
for the allowance of his will. (2nd par., Sec. 1, Rule 47)
244 INTRODUCTION TO LAW REMEDIAL LAW 245

When can the above persons petition for the allowance
ofthe will?
They may, a t any time, after the death of the testator petition
to the court having jurisdiction to have the will allowed whether
the same be in his possession or not, is lost, or destroyed.
DEFINITION OF TERMS
PETITION FOR GUARDIANSHIP
Guardianship is the relationship existing between the
guardian and the ward or it might refer to the duty or authority of
a guardian in relation to his ward.
Who may petition for appointment of a gitardian for a
resident of the Republic of the Philippines?

EXECUTOR - The person appointed by the testator in his Section l, Rule 93 ofthe New Rules ofCourt enumerates those
w~ . who may petition for the appointment of a guardian and they are
as follows:
ADMINISTRATOR - The person appointed by the court in
case there is no will. (l) Any relative, friend or other person on behalf of a resident
minor or incompetent who has no parent or lawful
ADMINISTRATOR WITH A WILL ANNEXED - The guardian;
person appointed by the court because although there is a will,
(2) The minor himself is fourteen (14) years of age or over;
said person's will does not appoint any executor, or if one is
appointed, said person is either incapacitated or not willing to serve. (3) An officer of the Federai Administration of the United
States in the Philippines in favor of a ward thereof; and
PERSONS DISQUALIFIED OR INCOMPETENT TO (4) The Director ofHealth, in favor of an insane person who
SERVE AS EXECUTOR OR AS AN ADMINISTRATOR should be hospitalized, or in favor of an isolated leper.
(Sec. l, Rule 93)
l. Minors;
2. Non-residents of the Philippines;
PETITION FOR APPOINTMENT OF TRUSTEE
3. Those who are unfit to execute the duties of the trust
DEFINITION OF TERMS
because of:
(a) drunkenness; TRU~TEE - Is a person appointed by the court to carry out
the effect of the provisions of the will as if he had been appointed
(b) improvidence; by the testator and in its technical sense, the trustee is a person
(c) want of understanding; who holds the trust for the benefit of another.
(d) want of integrity; and TRUSTOR - Is a person who establishes a trust.
(e) conviction of an offense involving moral turpitude. BENEFICIARY - ls a person for whose benefit the trust
(Sec. l, Rule 78) has been created.

PETITION FOR ESCHEAT DUTIES OF A TRUSTEE

Escheat is a special proceeding whereby the real and personal (l) To return to the court a true inventory of ali real and
property of a person who dies without a will or any legai heir personal property or estate that comes to his possession
becomes the property of the state upon his death. or knowledge;
246 INTRODUCTION TO LAW
(2) To faithfully discharge his trust;
(3) To render upon oath a true account of the property in
his hands; and
(4) To settle his accounts in court and to pay over and deliver
ali the estate remaining in his hands.
PETITION FOR ADOPTION OF MINORS
Adoption is a judicial act which creates a relationship between
two (2) persons similar to that which results from legitimate
paternity and filiation. In adoption, a person who has no child of
his own, has the opportunity to have one by creating the relation
of paternity and filiation through legai process.
BASIC POINTS TO REMEMBER
l. Every person of age, who is in full possession of his civil
rights may adopt; (Art. 334, New Civil Code)
2. Any person, even if of age, may be adopted provided the
adopter is 16 years older. (Art. 337, New Civil Code of
the Philippines)
The following cannot adopt:
(l) Those who have legitimate, legitimated, acknowl-
edged natura! children by legai fiction;
(2) The guardian, with respect to the ward, before the
final approvai of his accounts;
(3) A married person, without the consent of the otl;ler
spouse;
(4) Non-resident alien;
(5) Resident aliens with whose government the
Republic of the Philippines has broken diplomatic
relations;
(6) Any person who has been convicted of a crime
involving moral turpitude, when the penalty
imposed was six (6) months imprisonment or more.
REMEDIAL LAW 247
PETITION FOR HOSPITALIZATION OF INSANE PERSONS
Hearing and Judgment - The court shall make an order
of commitment upon satisfactory proof in open court on the date
fixed in the order, that the commitment applied for is for the public
welfare or for the welfare of the insane person, arid that his relatives
are unable for any reason to take proper custody and care of him.
The court shall order his commitment to such hospital or other
piace for the insane as may be recommended by the Director of
Health. The court shall make proper provisions for the custody or
property or money belonging to the insane until a guardian be
properly appointed. (Sec. 3, Rule 101, Rules of Court)
PETITION FOR HABEAS CORPUS
This is a writ directed to a person detaining another and
commanding him to produce the body of the prisoner at a certain
time and piace and to state the cause of his capture and detention.
Habeas corpus is a remedy to relieve persons from unlawful
restraint.
BASIC POINTS TO REMEMBER
It is not the writ itself but only its privilege that may be
suspended. For as long as a petition for habeas corpus is filed, and
the court finds that it is in proper form, it will issue the writ as a
matter of course.
If ~ssued, what will be the order of the Court?
The Court will order the production of the pers<m allegedly
detained and will require the respondent to justify the detention.
POWER TO SUSPEND THE PRIVILEGE OF
THE WRIT OF HABEAS CORPUS
1973 CONSTITUTION
Article VII, Sec. 9 provides as follows:
"Sec. 9 - The President shall be Commander-in-Chief
of ali Armed Forces of the Philippines and, whenever it
becomes necessary, he may cali out such armed forces to
prevent or suppress lawless violence, invasion, insurrection,
248 INTRODUCTION TO LAW
or rebellion. In case of invasbn, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it,
he may suspend the privilege of the writ of habeas corpus, or
piace the Philippines or any part thereof under martiallaw.
1987 CONSTITUTION
Article VII, Sec. 18 provides as foliows:
"Sec. 18 - The President shali be the Commander-in-
Chief of ali armed forces of the Philippines and, whenever it
becomes necessary, he may cali out such armed forces to
preyent or suppress lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the public safety requires
it, he may, fora period not exceeding sixty (60) days, suspend
the privilege of the writ of habeas corpus or piace the
Philippines or any part thereof under martiallaw."
l. The Supreme Court rulings on the issues of whether or
not the courts can inquire on the presidential suspension of the
privilege of the writ of habeas corpus are as follows:
The first two (2) leading cases on this point are the cases of
Barcelon vs. Baker (5 Phil. 87) and Montenegro vs. Castaneda (91
Phil. 882). In both cases, the Supreme Court decided that the
President's decision to suspend the privilege of the writ of habeas
corpus is "final and conclusive upon the courts andali other pesons."
The Barcelon rule was enunciated in this jurisdiction in 1905
whereas the Montenegro rule, which reiterated the Barcelon rule,
was enunciated in 1952. This ruling continued to prevail until1971
until our Supreme Court carne out with another ruling in the case
of Lansang vs. Garcia, 42 SCRA 448.
In the case of Lansang vs. Garcia, the Supreme Court ruled
that courts are aliowed to inquire whether or not a presidential
suspension of the privilege of the writ of habeas corpus is arbitrary
in order to determine its constitutional sufficiency.
The Lansang doctrine, however, was abandoned on account of
the decision rendered by the Supreme Court on cases docketed as
G.R. No. 61388 entitled, "In the Matter of Dra. Aurora Parong, et
al., Josefina Garcia-Padilla, petitioner vs. Minister Juan Ponce
Enrile, Gen. Favian Ver, Gen. Fidel V. Ramos, and Lt. Col. Miguel
Coronel, respondents decided onApril20, 1983, and G.R. No. 61016
REMEDIAL LAW 249
entitled, "In the Matter of Petition for Habeas Corpus of Horacio
R. Morales, Jr., petitioner vs. Minister Juan Ponce Enrile, Gen.
Fabian C. Ver, Col. Galileo Kintanar, respondents. Promulgated on
Aprii 26, 1983, or six (6) days after the Padilla decision was
promulgated.
In the Padilla case, nine (9) justices voted to abandon the
doctrine in the Lansang case and these justices are as foliows:
Justice Pacifico de Castro, Efren Plana, Juvenal Guerrero, Felix
Makasiar, Venecio Escolin, Conrado Velasquez, Vicente Abad Santos,
Hugo Gutierrez, Jr., and Lorenzo Relova. Two (2) justices voted to
retain the doctrine in the Lansang case and they are Chief Justice
Enrique Fernando and Justice Claudio Teehankee.
The majority decision reverted to the Barcelon and Montenegro
rule as above-mentioned.
In the Morales case, the justices who previously voted in the
Padilla case in favor of abandoning the doctrine in the Lansang
case maintained their position. Three (3) justices voted to retain
the Lansang doctrine and they are Chief Justice Enrique Fernando
and Justices Claudio Teehankee and Hermogenes Concepcion.
2. Now, under Sec. 18, Art VII of the Ne w Constitution, the
military powers of the President are more defined and specific. The
originai authority of the Commander-in-Chief, as provided in the
1973 Constitution, is changed as follows:
(l) He may cali out the armed forces to prevent or suppress
. lawless violence, invasion or rebellion only.
(2) The grounds for the suspension of the privilege of the
writ of habeas corpus and the proclamation of martial
law are now limited only to invasion or rebellion.
(3) The duration of such suspension or proclamation shali
not exceed sixty (60) days, following which it shali be
automaticaliy lifted.
(4) Within forty-eight (48) hours after such suspension or
proclamation, the President shall personally or in writing
report his action to Congress.
(5) The Congress may then, by a majority vote of ali its
members voting jointly, revoke his action. The revocation
may not be set aside by the President.
250 INTRODUCTION TO LAW
(6) By the same vote and in the same manner, the Congress
may, upon the initiative of the President, extend his
suspension or proclamation for a period to be determined
by the Congress if the invasion or rebellion shall continue
and the public safety requires the extension.
(7) The action ofthe President and Congress shall be subject
to review by the Supreme Court which shall have the
authority to determine the sufficiency of the factual basis
of such action.
This matter is no longer considered a political
question and may be raised in an appropriate proceeding
by any citizen. Moreover, the Supreme Court must decide
the challenge within thirty (30) days from the time it is
file d.
(8) Martiallaw does not automatically suspend the privilege
of the writ of habeas corpus or the operation of the
Constitution. The civil courts and the legislative bodies
shall remain open. Military courts and agencies are not
conferred jurisdiction over civilians where the civil courts
are functioning.
(9) The suspension of the privilege of the writ of habeas
corpus shall apply only to persons facing charges of
rebellion or offenses inherent in or directly connected
with invasion.
(10) Any person arrested for such offense must be judicially
charged therewith within three (3) days. Otherwise, he
shall be released.
3. A brief background of Supreme Court rulings on the issue
of whether there is right to bail during the suspension of the privilege
of the said writ are as follows:
Garcia Padilla vs. Enrile (G.R. No. 61388)
The right to bail cannot be invoked during the suspension of
the privilege .of habeas corpus. Associate Justice Pacifico P. De
Castro who wrote the Padilla decision for the court reasoned out
in this vein:
"Realistically, a person engaged in the rebellion does not,
upon being arrested or captured, ceases to be as committed to
REMEDIAL LAW 251
the cause of the movement. Through a grand conspiracy as is
of the essence of how rebellion is committed involving a great
mass of confederates bound together by a common goal, he
remains in a state of continued participation in the criminal
act or design. His heart still beats with th~ same emotion for
the success of the movement of which he éontinues to be an
ardent adherent and ally.
lt is simple logic then to hold that there should be no
legal compulsion for a captured rebel to be charged in court,
only to be released on bail, while he is, realistically and legally,
still as much engaged in carrying on actively to attain their
goal of overthrowing the established regime.
lt is, likewise, all too well-known that when the rebel
forces capture government troopers or kidnap private
individuals, they do not accord to them any of the rights now
being demanded by the herein petitioners, particularly to be
set at liberty upon the filing of bail. As a matter of common
knowledge, captives of the rebels or insurgents are not only
given the right to be released, but also denied trial of any kind.
In some instances, they may even be liquidated uncere-
moniously. What is then sought by the suspension of the
privilege of the writ of habeas corpus, is, among others, to put
the government forces on equal fighting terms with the rebels,
by authorizing the detention of their own rebel or dissident
captives as the rebellion goes on. In this way, the advantage of
the rebellion forces ha ve over those of the government, as when
they resort to guerrilla tactics with sophisticated weapons, is,
at least minimized, thereby enhancing the latter's chances of
beating their enemy. lt would, therefore, seem to be ignoring
realities in the name of misplaced magnanimity and
compassion, and for the sake of humanity, to grant the demand
for respect of rights supposedly guaranteed by the Constitution
by those who themselves seek to destroy that very same
instrument, trampling over it already as they are still waging
war against the government. This stark actuality gives added
force and substance to the rationale of the suspension of the
privilege of the writ of habeas corpus in case of invasion,
insurrection, rebellion, or imminent danger thereof, when
public safety requires it.
252 INTRODUCTION TO LAW
4. In a book I have written, entitled, ''What is our right and
what is our power as a people," I expressed my dissent to the above-
mentioned ruling in this manner.
On the issue of bail, the two (2) reasons given by Associate
Justice Pacifico P. de Castro and which are quoted above, are not,
in my honest opinion, sufficient justifications to deny the right to
bail for the following reasons:
First: In G.R. No. 61388 entitled "In the matter ofthe Petition
for the Issuance of the Writ of Habeas Corpus for Dra. Aurora
Parong, et al., Hosefina Garcia-Padilla, petitioner vs. Minister Juan
Ponce Enrile, Gen. Fabian C. Ver," Gen. Fidel V. Ramos, and Lt.
Col. Miguel Coronel, respondents, records show that Dra. Aurora
Parong is charged with the crime of illegal possession of firearms.
This is clearly a bailable offense. The same thing is true with respect
to the other detainees. No amount of legal nicety nor the issuance
of a Presidential Commitment Order can prevail over a clear
constitutional guarantee expressed in Section 18, Artide IV of the
New Constitution which reads:
xxx
"Sec. 18 - All persons except those charged with capital
offenses when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties. Excessive bail shall
not be required. (Underlining Supplied)
Since it is clear that the said detainee is charged with a
bailable offense and since it is clear from the above-quoted
constitutional provision that she is qualified to be bailable, there
should be no reason nor any barrier to deny the petition for bail.
Second: While the President has the power to suspend the
privilege of habeas corpus under and by virtue of the exceptions in
Section 15, Article IV of the New Constitution, it is, on the other
.]l,·H
hand, the power of the courts to grant bail to qualified persons no t
f
falling under the exceptions mentioned in Section 18, Article IV. I
see no justification to the statement that "the duty of the judiciary
to protect individual rights must yield to the power of the executive
to protect the state x x x." Ten (10) or one hundred (100) detention
prisoners, or even more, even granting that they are rebels, cannot
overwhelm the vast powers of the government. It will not make a
serious difference if they are granted the right to bail. Besides,
why should the judiciary yield a power and a duty which is
REMEDIAL LAW 253
appropriately its own? Moreover, it is not the particular right of
the individuai that is protected or being protected. Rather, it is the
doctrine of separation of powers itself and the system of checks
and balances as well as the very constitution itself which guarantees
all of these that the judiciary protects. If, in th~ exercise of this
duty, an individuai or group of individuals are directly or indirectly
benefited, it is because they are part and parcel of the state and of
the government which they have chosen. After all, the government
may come and go at any time but the people who compose the state
remains. They are actually the ones who work to no end just so
that the nation and the state can survive.
Third: In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy,
impartial and public trial, to meet the witnesses face to face, and
to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. x x x (Sec. 19, Article
IV, 1987 Constitution) If one's right to bail is denied, the above-
quoted constitutional right will be defeated and rendered useless.
The detainee, for as long as he is detained, cannot effectively
prepare his case and his defense. Added to this is the fact that
during the entire period of his detention and untii the case is finally
decided, he is, in the eyes of the la w, stili presumed innocent. The
contrary has yet to be proven and yet during the interegnum
between the inquiry and the final judgment, he has already lost
the battie. Even before the trial starts, he is already in a very
l disadvantageous position. While the government, with all the
powers à.nd facilities in its command, is thoroughly preparing its
l case and its evidence, the detainee suffers the physical and mental
burden of being kept inside the prison cell. Even granting for the
sake of argument that he is given a chance to confer with his
iltfil counsel, the disadvantage in any respect stili works against the
detainee. This is very evident and clear and any contradiction of
reaiity will only make the truth very obvious .
PETITION FOR CHANGE OF NAME
A person desiring to change his name can file his petition with
the locai civil registry office of the city or municipality where the
record being sought to be corrected or changed is kept. (R.A. No.
9048)

254 INTRODUCTION TO LAW
!l'
:Il
l'
CONTENTS OF PETITION FOR CHANGE OF NAME
l. The petition for change of name shall be in the form of
an affidavit, subscribed and sworn to before any person
authorized to administer oaths. The petition for change
of first name or nickname may be aliowed in any of the
foliowing cases:
(a) The petitioner finds the first name or nickname to
be ridiculous, tainted with dishonor or extremely
difficult to write or pronounce;
(b) The new first name or nickname has been habitualiy
and continuously used by the petitioner and he has
been publicly known by that first names or
nicknames in the community; or
(c) The change wili avoid confusion.
PETITION FOR VOLUNTARY DISSOLUTION OF CORPORATION
A petition for voluntary dissolution of a corporation shali be
filed in the CFI of the province where the principal office of the
corporation is situated. (Sec. l, Rule 104) (CFI is now referred to
asRTC)
Requirements:
l. It must be signed by a majority of its Board of Directors,
or other officers managing its affairs.
'11111
2. It must be verified by the President or Secretary or one
of the directors.
3. It must set forth ali claims and demands against the said
corporation.
4. A statement that its dissolution was resolved:
(a) By the majority of the members (if non-stock),
(b) Or by the affirmative vote of the stockholders
holding and representing two-thirds (2/3) of ali the
shares of stock issued or subscribed (if a stock
.corporation) at a meeting of its members or
stockholders calied for that purpose. (Sec. l, Rule
104)
illll
REMEDIAL LAW 256
JUDICIAL APPROVAL OF VOLUNTARY RECOGNITION
OF MINOR NATURAL CHILDREN
VENUE:
Where judicial approvai of a voluntary recognition of a minor
natura! child is required, such child or his parents shali obtain the
same by filing a petition to that effect with the Court of First
Instance of the province in which the child resides. In the City of
Manila, the petition shali be filed on the Juvenile and Domestic
Relations Court. (Sec. l, Rule 105, New Rules of Court)
Ilii
CONTENTS OF PETITION
The petition for judicial approvai of a voluntary recognition
i of a minor natura! child shall contain the foliowing aliegations:
(l) The jurisdictional facts;
(2) The names and residences of the parents who acknowl-
edge the child, or of either of them, and their compulsory
heirs, and the person or persons with whom the child
lives;
(3) The fact that the recognition made by the parent or
parents took piace in a statement before court of record
or in an authentic writing, copy of the statement or
writing being attached to the petition. (Sec. 2, Rule l 05,
New Rules of Court)
l
WHO MAY RECOGNIZE A NATURAL CHILO?
.... Il
A natura! child may be recognized by the father and mother
jointly, or by only one of them. (Art. 276, New Civil Code of the
Philippines)
WAYS OF VOLUNTARY RECOGNITION
Recognition shali be made in the record of birth, a will, ll
statement before a court of record, or in any authentic writing. (Art .
278, New Civ il Code of the Philippines)
256 INTRODUCTION TO LAW
NOTE:
l. A child who is of age cannot be recognized without his consent.
When the recognition of a minor does not take piace in a record
of birth or in a will, judicial approvai shall be necessary. A
minor can in any case, impugn the recognition within four (4)
years following the attainment of his majority. (Art. 281, New
Civil Code)
2. A recognized natural child has the right: (l) To b~ar the
surname of the parent recognizing him; (2) To receive support
from such parent, in conformity with Artide 291; (3) To receive
in a proper case, the hereditary portion which is determined
in this Code. (Art. 282, New Civil Code)
3. In any of the following cases, the father is obliged to recognize
the child as his natural child:
(l) In cases ofrape, abduction or sedudion, when the period
of the offense coincides more or less with that of the
conception;
(2) When the child is in continuous possession of status of a
child of the alleged father by the direct acts of the latter
or of his family;
(3) When the child was conceived during the time when the
mother cohabited with the supposed father;
( 4) When the child has in his favor any evidence or proof
that the defendant is his father. (Art. 283, New Civil
Code)
4. Kinds of recognition
(l) Recognition may either refer to recognition of (a) a
natural child, or (h) recognition of a spurious child.
(a) Natural child - It is a child horn outside of wed-
lock of parents who, a t the time of conception of the
former, were not disqualified by any impediment to
(b)
marry each other.
Spurious child- It is an illegitimate child other
than natural.
(2) Recognition may also be categorized as follows:
(a) Voluntary recognition of a natural child or
voluntary recognition of a spurious child;
REMEDIAL LAW 257
(b) Compulsory recognition of a natural child. In this
case, a formai declaration of filiation is made by the
court.
(3) Recognition by operation oflaw (i.e., natural children by
legai fiction such as those mentioned)n Artide 89 of the
New Civil Code).
(4) Automatic recognition such as that mentioned in Article
271 of the New Civil Code.
''Art. 271 - Only natural children who have
been recognized by the parents before or after, the
celebration of the marriage, or have been declared
natural children by final judgment, may be
considered legitimated by subsequent marriage.
lf a natural child is recognized or judicially
declared as natural, such recognition or declaration
shall extend to his or her brothers or sisters of full
blood; Provided, That the consent of the latter shall
be implied if they do not impugn the recognition
within four (4) years {rom the t ime of su c h
recognition, or in case they are minors, within four
(4) years following the attainment o{ majority."
WHO MAY PETITION DECLARATION OF ABSENCE?
After the lapse of two (2) years from his disappearance and
without any news about the absentee or since the receipt of the
last news, or offive (5) years in case the absentee has left a person
'! in charge of the administration of his property, the declaration of
. i his absence and appointment of a trustee or administrator may be
l applied for by any of the follQwing:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an
l! (c)
authentic copy of the same;
The relatives who would succeed by the law ofintestacy;
i and
l
i (d) Those who have over the property of the absentee some
o
l
ì
rights subordinated to the condition of his. death. (Sec.
2, Rule 107, New Rules of Court)
 7''"
i,j

258 INTRODUCTION TO LAW REMEDIAL LAW 259

CODE: (g) Legitimations;

2 years - Should lapse before declaration of absence can be (h) Adoptions;

made. This period applies to an absentee who has no administrator. (i) Acknowledgments of natura! children;
5 years - Should lapse before declaration of absence can be (j) Naturalization;
made. This period applies if the absentee has an administrator.
(k) Election, loss or recovery of citizenship;

CONTENTS OF PETITION (l) Civil interdiction;

The petition for the appointment of a representative, or for
declaration of absence and the appointment of a trustee or an
administrator, must show the following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs instituted
in a will, copy of which shall be presented, and of the
relatives who would succeed by the law of intestacy;
(c) The names and residences of creditors and others who
may have any adverse interest ovel' the property of the
absentee;
(d) The probable value, location and character ofthe property
belonging to the absentee.
(m) Judicial determination of filiation;
(n) Voluntary emancipation of a minor; and
(o) Changes of name.
WHO MAY FILE A PETITION FOR CANCELLATION OR
CORRECTION OF ENTRIES IN THE CIVIL REGISTRY?
Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in
the civil registry, may file a verified petition for the cancellation or
correction of any entry related thereto, with the Court of First
Instance of the province where the corresponding civìl registry is
located (CF! is now referred to as RTC)

CANCELLATION OF ENTRIES IN THE CIVIL NOTE:

REGISTRY
WHAT CHANGES ARE AUTHORIZED?

ENTRIES SUBJECT TO CANCELLATION l. Changes that are authorized are those changes which
OR CORRECTION are merely clerical in nature. Those which affect civil
status, nationality or citizenship are not authorized. Ali
Upon good and valid grounds, the following entries in the civil these and other substantial changes should be threshed
registry may be cancelled or corrected: out in a proper action.
(a) Births; 2. Notice and Publication- Upon the filing ofthe petition,
(b) Marriages; the court shall, by an order, fix the time and piace for
the hearing of the same, and cause reasonable notice
(c) Deaths; thereof to be given to the person named in the petition.
(d) Legai separation; The court shall also cause the order to be published once
a week for three (3) consecutive weeks in a newspaper of
(e) Judgments of annulments of marriage; generai circulation in the province. (Sec. 4, Rule 108, New
(f) Judgments declaring marriages void from the beginning; Rules of Court)
 INTRODUCTION TO LAW
REMEDIAL LAW 261
260

REQUISITES FOR VALlO EXERCISE OF

CRIMINAL PROCEDURE
CRIMINAL JURISDICTION
Before a court can validly exercise its power to hear and try a
DEFINITION case, the following requisites must be present:
l

Criminal procedure is a part of remedial law which provides (a) There must be jurisdiction over the subject matter;
for the apprehension, prosecution, conviction or acquittal, as the (b) There must be jurisdiction over the territory where the
case may be, of a person who is accused of having committed a offense was committed; and
crime.
(c) There must bejurisdiction over the person ofthe accused.

CRIMINAL JURISDICTION Jurisdiction over the subject matter is conferred by law.

Jurisdiction over the territory means that an accused can be
Criminal jurisdiction is the authority to hear and try a tried only in the piace where he committed the crime or where any
particular offense and impose the punishment for it. of the essential ingredients of the crime took piace.
Jurisdiction over the person of the accused may be obtained
HOW IS THE COURT'S JURISDICTION DETERMINED? by voluntary appearance or surrender of the accused or by arrest.
The generai rule is that the jurisdiction of a court is deter-
mined by: DISTINCTION
(a) The geographical limits of the territory over which it COMPLAINT INFORMATION
presides;
l. A sworn statement charging l. A written statement of
(b) The actions (civil and criminal) is empowered to hear and a person with an offense, accusation charging a person
decide. subscribed by the offended with an offense subscribed by
party, any peace officer and the Fiscal and filed with the
ELEMENTS OF JURISDICTION IN CRIMINAL ACTIONS other employee ofthe govern- Court.
ment or governmental insti-
The elements of jurisdiction of a trial court over the subject tution in-charge of the en-
matter in a criminal case are: forcement or execution of the
law.
(a) The nature of the offense and/or penalty attached there-
to. 2. Filed either in court or in the 2. Filed directly with the Court.
Fiscal's Office.
(b) The fact that the offense has been committed within the
territorial jurisdiction of the court. WHO MUST PROSECUTE CRIMINAL ACTION?
Non-concurrence of either of these two (2) elements may be AS A RULE: A criminal action either commenced by complaint
challenged by an accused at any stage of the proceedings in the or by information shall be prosecuted under the discretion and
court below or on appeal. control of the Fiscal.
In the absence of any of the said elements, a judgment of EXCEPTION: However, when there is no Fiscal available in
conviction is null and void. (U.S. vs. Jayme, 24 Phil. 90, 93) the Municipal Trial Court, the following persor.s may prosecute the
case:
 ì'

262 INTRODUCTION TO LAW REMEDIAL LAW 263

(a) The offended party; IN CASE OF OEATH OR INCAPACITY OF THE

OFFENOEO PARTY, ANO THE LATTE~ HAS NO
(b) Any peace officer; and PARENTS, GRANOPARENTS, OR GUAROIAN, WHO
(c) Public officer charged with the enforcement of the law SHALL INSTITUTE THE CRIMINAL ACTION IN HER
violated. BEHALF?
Sllch authority shall cease in the following manner: The State. (Sec. 5, 3rd paragraph of the Revised Rules on
(a) Upon intervention of the Fiscal; or Criminal Procedure)

(b) Upon elevation of the case to the Regional Trial Court.

IN CASE THE OFFENOEO PARTY IS A MINOR, CAN
SHE INSTITUTE THE PROSECUTION OF THE
HOW IS CRIMINAL ACTION A COMMENCEO? ABOVE OFFENSES?
lt is "commenced either by complaint or information in the
Yes, unless she is incompetent or incapable of doing so upon
name of the People of the Philippines against all persons who
grounds other than her minority.
appear to be responsible therefor.

IN CASE THE OFFENOEO PARTY WHO IS A MINOR

WHAT ARE THE CRIMES THAT SHALL BE
PROSECUTEO ONLY UPON THE COMPLAINT OF
THE OFFENOEO SPOUSE?
The crimes of adultery and concubinage shall not be prose-
cuted, except upon a complaint filed by the offended spouse.
WHEN THE OFFENOEO PARTY PROSECUTES A
CRIMINAL PROSECUTION FOR AOULTERY ANO
CONCUBINAGE, WHO SHOULO BE IMPLEAOEO?
The offended party cannot institute criminal prosecution for
said crimes without including both guilty parties, if they are both
alive, nor, in any case, if the offended party has consented to the
offense or pardoned the offenders.
'l
WHAT ARE THE CRIMES THAT SHALL BE
PROSECUTEO ONLY UPON THE COMPLAINT OF
THE OFFENOEO PARTY, OR HER PARENTS,
GRANOPARENTS, OR GUAROIAN?
The offense of seduction, abduction, or acts of lasciviousness
shall not be prosecuted except upon a complaint filed by the offended
party or her parents, grandparents, or guardian, nor, in any case,
if the offender has been expressly pardoned by the above-named
persons, as the case may be.
FAILS TO FILE A COMPLAINT, WHO CAN FILE THE
SAME?
Her parents, grandparents, or guardian may file the same.
WHAT SHOULO A COMPLAINT OR INFORMATION
STATE?
"Sec. 8. Designation of the offense - The complaint
or information shall state the designation of the offense given
by the statute aver the acts or omissions constituting the
offense and SPECIFY ITS QUALIFYING AND AGGRAVAT-
ING CIRCUMSTANCES. If there is no designation of the
offense, reference shall be made to the section or subsection
of the statute punishing it.
l Sec. 9. Cause of accusation - The acts or omissione
complained of as constituting the oft'ense and the aggravating
circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute but in
terms sufficient to enable a person of common understanding
to know what offense is being charged as well as ITS
QUALIFYING AND AGGRAVATING CIRCUMSTANCES and
for the court to pronounce judgment."
 ilf:

264 INTRODUCTION TO LAW REMEDIAL LAW 265

IF THERE IS AN ERROR IN THE NAME OR DUPLICITY OF THE OFFENSE

IDENTITY OF THE ACCUSED, HOW SHOULD IT BE ,
.
A complaint or information must charge but one offense .
RAISED? lllì
~~ EXCEPTION: Except in cases in which existing laws prescribe
If in the course of the proceeding, the true name of the accused a single punishment for various offense.
is disclosed by him, or appears in the other manner to the court,
the true name of the accused shall be inserted in the complaint or
information and record. WHERE SHALL A CRIMiNAL ACTION BE
INSTITUTED ANO TRIED?

WHAT IS THE OTHER WAY OF IDENTIFYING THE

1
ftr
l!g l. Subject to existing laws, in ali criminal prosecutions, the
NAME OF THE OFFENDED PARTY? »1·:
'li
action shall be instituted and tried in the court of the
ìi\
~ .(:
municipality or territory wherein the offense was
He must be described under a fictitious name. committed or any one of the essential ingredients thereof
(a) In case of offenses against property, if the name of the took place;
offended party is unknown, the property, subject matter !.• •
2. Where an offense is committed on a railroad train, in an
of the offense, must be described with such particularity aircraft, or in any other public or private vehicle while

l
as to properly identify the particular offense charged.
(b) If in the course of the trial, the true name of the person
against whom or against whose property the offense was
committed is disclosed or ascertained, the court must l[l
cause the true name to be inserted in the complaint or
information, or record. !'w l
(c) If the offended party is a corporation or any other
juridical person, it is sufficient to state the name of such
corporation or juridical person, or any name or design-
ation by which it has been or is known, or by which it
may be identified, without necessity of averring that it
is a corporation, or that it is organized in accordance with
the law.
IS IT NECESSARY TO STATE THE EXACT TIME
WHEN THE ALLEGED OFFENSE WAS COM-
MITTED?
No. (Sec. 11, Rule 110 of the Revised Rule on Criminal
Procedure) · ·
EXCEPTION: Except when time is a materia! ingredient of
the offense. In such case, the act may be alleged to have been
committed at any time or near to the actual date at which the offense
was committed or the information or complaint will permit.
in the course of its trip, the criminal action may be
instituted and tried in the courts of any municipality or
territory where such train, aircraft or other vehicle
passed during such trip, including the piace of departure
and arrivai;
3. Where an offense is committed on board a vessel in the
course of its voyage, the criminal action may be instituted
and tried in the proper court of the first port of entry or
of any municipality or territory through which the vessel
passed during such voyage subject to the generally
accepted principles of international law;
4. · Other crimes committed outside the Philippines but
punishable therein under Artide 2 of the Revised Penai
Code shall be cognizable by the proper court in which
·the charge is first filed.
RULE 111
1985 2000 as amended
"Sec. l. Institution of cri- "Sec. l. Institution of cri·
minai and civil actions." minai ànd civil actions."
When a .criminal action is When a t::riminal action is
instituted, the civil action for the instituted, the civil action for the
 n
rr
266 INTRODUCTION TO LAW J
)i REMEDIAL LAW 267
n
~
~
recovery of civil liability is im- recovery of civil liability constitute a first lien on the (A) THE CRIMINAL
pliedly instituted with the cri- ARISING FROM OFFENSE l} judgment except in an award for ACTION FOR VIOLATION OF
minai action, unless the offended CHARGED shall be deemed li
'l actuai damages. BATAS PAMBANSA BLG. 22
party waives the civil action, instituted with the criminal 1;
. SHALL BE DEEMED TO IN-
reserves his right to institute it action unless the offended party In cases wherem the amou~t CLUDE THE CORRESPOND-
separately, or institutes the civil waives the civil action, reserves
!\::

..
l
ofdamag~s, other than ac~uai, 1s ING CIVIL ACTION, NO
action prior to the cri minai the right to institute it separately ~lleged .m the compiamt. or RESERVATION TO FILE SUCH
action. or institutes the _civii action prior
'
' m~ormatwn, the corre.spondmg CIVIL ACTION SEPARATELY
1 filmg fees shall be pa1d by ~he SHALL BE ALLOWED.
,·i
Such civil action includes to the criminai action. offended party upon the fihng
recovery of indemnity under the Such civil action includes thereof in court for trial. UPON FILING OF THE
Revised Penai Code, and recovery of indemnity under the " . • AFORESAID JOINT CRIMINAL
damages under ArtiCles 32, 33, Revised Penai Code, and dama- Sec. ~·. Ins~Itution of AND CIVIL ACTIONS, THE
34 and 2176 of the Civil Code of ges under Articles 32, 33, 34 and ~~ separate Civd acbon. OFFENDED PARTY SHALL
the Philippines arising from the 2176 of the Civil Code of the Except in the cases provided PAY IN FULL THE FILING
act or omission of the accused. Philippines arising from the act
w for in Section 3 hereof, after the FEES BASED ON THE
A waiver of any of the civii or omission of the accused. criminal action has been com- AMOUNT OF THE CHECK
actions extinguishes the others. The reservation of the right menced, the civil action which INVOLVED, WHICH SHALL BE
The institution of, or the reser- to institute the separate civil has been reserved cannot be CONSIDERED AS THE
instituted until finai judgment ACTUAL DAMAGES CLAIMED.
vation of the right to file, any of actions shall be made before the
has been rendered in the WHERE THE COMPLAINT OR
said civil actions separateiy prosecution starts to present its i-
ii criminal action. INFORMATION ALSO SEEKS
waive the others. evidence and under circum-
TO RECOVER LIQUIDATED
The reservation of the right stances affording the offended (a) Whenev~r t~e offended MOAL, NOMINAL, TEMPE-
to institute the separate civil party a reasonabie opportunity to p.a~ty s~all have ~nsbtute.d the RATE OR EXEMPLARY DA-
actions shall be made before the make such reservation. c~VII acbon as proVIded for ~n the MAGES, THE OFFENDED PAR-
prosecution starts to pres~nt the EXCEPT AS OTHERWISE f1rst paragraph of ~ecbon l TY SHALL PAY ADDITIONAL
evidence and. under cucum- PROVIDED IN THESE RULES, h~re?f befo~e the filmg ?f .the FILING FEES BASED ON THE
stances affordmg the offe?-ded NO FILING FEES SHALL BE cn~mai. acbon and the cnmmal AMOUNTS ALLEGED THERE-
party a reasonable o~portumty to REQUIRED FOR ACTUAL DA- actwn 1s subse~ue~tl.y co.m- IN, IF THE AMOUNTS SUBSE-
make such reservatwn. MAGES. menced, the pendm~ CIVII acbon QUENTLY AWARDED BY THE
shall be suspended,.m whatev?r COURT, THE FILING FEES
In no case may the offended
NO COUNTERCLAIM, stage ?ef?re fina~ Judgment m BASED ON THE AMOUNT
party recover damages twice for
CROSSCLAIM, OR THIRD the cnmmal actwn. has been AWARDED SHALL CONSTI-
the same act or omission of the
accused. PARTY COMPLAINT MAY BE ~endered. However, 1f no finai TUTE A FIRST LIEN ON THE
JUdgment has been rendered by JUDGMENT
FILED BY THE ACCUSED IN the trial court in the civil action, ·
When the offended party THE CRIMINAL CASE. BUT
seeks to enforce civil liability ANY CAUSE OR ACTION the same may be consolidated WHERE THE CIVIL
against the accused by way of WHICH COULD HAVE BEEN with the criminal action upon ACTION HAS BEEN FILED
moral, nominai, temperate or THE SUBJECT THEREOF MAY application with the court trying SEPARATELY AND TRIAL
exempiary damages, the 'filing BE LITIGATED IN A SEPA- the criminai action. If the appli- THEREOF HAS NOTYET COM-
fees for such civil action as RATE CIVIL ACTION. cation is granted, the evidence MENCED, IT MAY BE CONSO-
provided in these Rules shall presented and admitted in the LIDATED WITH THE CRIMI-
qjl
268 INTRODUCTION TO LAW
r
~~

REMEDIAL LAW 269

:l

civil action shall be deemed

automatically reproduced in the
NAL ACTION. UPON APPLI-
CATION WITH THE COURT
li be deemed automatically repro-
duced in the criminal action,
criminal action, without preju- TRYING THE LATTER CASE without prejudice to the ad-
dice to the admission of addì- IF THE APPLICATION IS mission of additional evidence
tional evidence that any party GRANTED THE TRIAL OF that any party may wish to
may wish to present. In case of BOTH ACTIONS SHALL PRO- present. In case of consolidation,
consolidation, both the criminal CEED IN ACCORDANCE WITH both the crimìnal and the civil
and civil actions shall be tried SECTION 2 OF THIS RULE !l actions shall be tried and decided
and decided jointly.
(b)
GOVERNING CONSOLIDA-
TION OF THE CIVILAND CRI-
Extinction of the penai MINAL ACTIONS."
action does not carry with it
extinction ofthe civil, unless the "Sec. 2. Institution of
li jointly.
(b) Extinction of the penai
action does not carry with it
extinction of the civil, unless the
extinction proceeds from a separate civil action." '!1 extinction proceeds from a
declaration in a final judgment . . 1 declaration in a final judgment
a e
~ tf
tac rom
th· thtth · d'd t · tw
h' h th . .1
1c e CIVI .
Except m cases prov1ded for
. ,
!~! that the fact from which the civil
m Sectwn 3 hereof, after :..he might arise did not exist.
m1g anse 1 no ex1s . . . 1 ac t'w n h as b een com-
cnm1na
menced, the civil action which
has been reserved cannot be
instituted initial judgment on the CHANGES AT A GLANCE
merits has been entered in the
criminal action. 1985 2000 as amended
(a) Whenever the offended
party shall have instituted the l. Under the 1985 Rule, the Il. Under the present rule only
civil action as provided for in the action for recovery of civil the civilliability arising from
first paragraph of Section l liability arising from crime the offense charged is
hereof before the filing of the including the civil liability deemed instituted with the
criminal and the criminal action under Articles 32, 33, 34 and criminal unless the offended
is subsequently commenced, the 2176 of the Civil Code of the party waives the civil action,
pending civil action shall be !l,\i Philippines arising from the re-s.erves his right to
suspended, in whatever stage ;iil' same act or omission are institute it separately, or
before judgment on the merits deemed impliedly instituted institutes the civil action
has been entered. However, if no with the criminal action prior to the criminal action.
judgment on the merits has been unless the offended party
entered by the trial court in the waives the civil action,
civil action, the same may be reserves his right to institute
consolidated with the criminal it separately, or institutes the
action upon application with the civil action prior to the
court trying the criminal action criminal action.
upon. If the application is grant-
ed, the evidence presented and
2. Under the former rule, a ,2. A waiver ofany ofthese three
waiver of any of these three (3) civil actions extinguishes
admitted in the civil action shall
li
 r1
\:l
270 INTRODUCTION TO LAW REMEDIAL LAW 271
l
(3) civil actions extinguishes the others is no longer pro- INFORMATION
the others. The institution of, vided in the present rule.
or the reservation of, the l. A written accusation charging a person with an offense
right to .file any sai d ci vii subscribed by the Fiscal and filed with the Courts.
actions separately waives the 2. Filed directly with the Court.
others.
3. The present rule also incor-
3. The former rule does not porated Circular 57-97 on the WHO MUST PROSECUTE CRIMINAL ACTIONS?
include Batas Pambansa Big.
22.
filing of action for violation of
Batas Pambansa Big. 22
l l. Criminal actions commenced by complaint or by infor-
mandating the inclusion of l mation
the corresponding civil action They shall be prosecuted under the direction and
for which the filing fee shall control of the Fiscal.
be paid based on the amount
of the check involved. 2. Adultery and concubinage
They shall not be prosecuted except upon a
complaint filed by the offended spouse. The Fiscal cannot
WHO ARE AUTHORIZED TO CONDUCT A
prosecute those crimes on his own initiative. The offended
party must implead both the guilty parties, if they are
PRELIMINARY INVESTIGATION? both alive.
The following may conduct a preliminary investigation, to wit: 3. Seduction, abduction, rape, acts of lasciviousness
(a) Provincia! or City Fiscal and their Assistants; They shall not be prosecuted except upon a
(b) Judges ofthe Municipal Trial Courts and Municipal Trial complaint filed by the offended party, or her parents, or
Courts; her grandparents, or guardian nor in any case if the
offender has been expressly pardoned by the above-
(c) National and Regional State Prosecutors; and named persons, as the case may be.
(d) Other officers as may be authorized by the law.
Their authority to conduct preliminary investigation shall EVIDENCE
include ali crimes cognizable by the proper court in their respective
territorial jurisdiction. (Sec. 2, Rule 112) It is the means sanctioned in the Rules of ascertaining in
judicial proceeding the truth respecting a matter of fact.

DISTINCTIONS KINDS OF EVIDENCE

COMPLAINT
l. Documentary evidence - Such as documents, papers
l. A sworn statement charging a person with an offense, or any written letter or communication.
subscribed by the offended party,. any peace officer and
2. Testimoniai evidence - Oral or written testimony or
other employee of the government or governmental statement of a witness.
institution in-charge of the enforcement or execution of
the law violated. 3. Real evidence- That which may be exhibited to or
viewed by the Court such as the knife or gun used to kill
2. Filed either in court or in the Fiscal's Office. Mr.A.
272 INTRODUCTION TO LAW
4. Circumstantial evidence - It proves a fact from
circumstances surrounding a particular incident or
situation.
5. Corroborative evidence - Additional evidence of the
same kind tending to prove the same fact.
6. Cumulative evidence. - Additional evidence of a
different kind tending to prove a fact.
7. Prima facie evidence - Evidence sufficient to prove
an issue unless rebutted by other evidence.
8. Expert evidence - That given by a person who has a
specialized knowledge of a particular field in connection
with which his testimony is requested.
WHAT IS THE BEST EVIDENCE RULE?
Under the best evidence rule, the contents of the document
being offered. in evidence cannot be proved unless the originai is
produced or its absence accounted for. The reason for the rule is to
prevent uncertainty, ambiguity and fraud.
Rule 130, Section 2 of the New Rules of Court provides as
follows:
"Sec. 2. Originai writing must be produced;
exceptions - There can be no evidence of a writing the
contents of which is the subject of inquiry, other than the ·
original writing itself, except in the following cases:
(a) When the original has been lost, destroyed or cannot
be produced in court;
(b) When the original is in the possession of the party
against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original is a record or other document in
the custody of a public officer;
(d) When the origina l has been recorded in an existing
record a certified copy of which is made evidence by law;
(e) When the origina[ consists of numerous accounts or
other documents which cannot be examined in court without
great loss of time and the fact sought to be established from
them is only the general result of the whole."
REMEDIAL LAW 273
COPIES OF AN ORIGINAL ARE REGARDED AS ORIGINALS
When an entry is repeated in the regular course of business,
one being copied from another a t or near the time of the transaction,
all the entries are equally regarded as originals.
WHAT IS THE PAROL EVIDENCE RULE?
Rule 130, Section 7 of the New Rules of Court defines the
parol evidence as follows:
"Sec. 7. Evidence of written agreements - When
terms of an agreement have been reduced to writing, it is to be
considered as containing all such terms, and, therefore, there
can be, between the parties and their successors-in-interest, no
evidence of the terms of the agreement other than the contents
of the writing, except in the following cases:
(a) Where a mistake or imperfection of the writing, or
its failure to express the true intent and agreement of the
parties, or the validity of the agreement is put in issue by the
pleadings;
(b) Where there is an intrinsic ambiguity in the writing.
The term agreement includes will."
WHAT IS HEARSAY EVIDENCE?
Hearsay evidence is that which a witness says he merely heard
from another. It is an evidence that the witness heard soniething
from another but it is not an evidence that what was ·heard was
true. As a rule, hearsay evidence is not admissible as evidence.
EXCEPTIONS TO THE HEARSAY RULE
l. Dying declarations;
2. Statements of a deceased person against his pecuniary
or moral interest;
3. Statements about pedigree, family reputation or tradition
about pedigree;
4. Statement about matters of public or generai interest,
or common reputation;
5. Statements as part of the res gestae;
274 INTRODUCTION TO LAW

6. ·Entries in the course of business, or in the performance

ofduty;
7. Official written statements;
Chapter XVI
8. Commerciallists and similar lists;
9. Learned treaties; and
LABOR LAW ANO SOCIAL LEGISLATION
10. Testimony at a former trial. (Secs. 31 to 41, Rule 140)

RULES CONCERNING ADMISSION TO

IMPORTANT TOPICS UNDER THE LABOR CODE OF THE PHILIP·
THE PRACTICE OF LAW
PINES:
Section 5(5), Artide X of the New Constitution provides as
l. Distinction between labor laws and social legislation
follows:
"Sec. 5. ·The Supreme Court shall ha ve the following (a) Labor laws
powers: (b) Sociallegislation
xxx 2. Generai provisions of the Labor Code of the Philippines
(5) Promulgate rules concerning pleading, practice, and 3. Emancipation of tenants
procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be repealed, 4. Regulation of Recruitment and Placement Activities
altered, or supplemented by the National Assembly. Such rules 5. Employment of non-resident aliens
shall provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all courts of 6. Conditions of employment
the same grade, and shall not diminish, increase, or modify (a) Hours of work
substantive rights. x x x"
(b) Weekly rest period
(c) Holidays, Service Incentive Leaves and Service
Charges
(d) Wages
(d.l) Minimum wage rate
(d.2) Forms of payments
(d.3) Time of payment
(d.4) Piace of payment
(d.5) Prohibitions regarding wages
(d.6) Wage studies and determination

275
276 INTRODUCTION TO LAW LABOR LAW AND SOCIAL LEGISLATION 277

(e) Employment of minors 2. SOCIAL LEGISLATION DEFINED

7. National Labor Relations Commission (NLRC) Social legislation refers to those laws that are designed to
uplift the condition of workers or employees as members of the
(a) Jurisdiction of Labor Arbiters and the Commission community and as human bèings with recognized dignity. They are
(b) Technical rules not binding designed to secure the future of the worker as well as his family
because of what happens to the worker arising from the hazards,
(c) Appeal from decision of NLRC incidents or effects of employment.
8. Unfair labor practices EXAMPLES: Social Security Act, the Medicare Act and
(a) Unfair labor practices of employers provisiòns on compensation for injuries sustained by workers or
employees in the course of or arising from employment.
(b) Unfair labor practices of labor organizations
,, l
9. Strikes and lockouts DISTINCTION BETWEEN LABOR LAWS
10. Termination of employment AND SOCIAL LEGISLATION

(a) Regular and casual employment 1. LABOR LAWS

(b) Probationary employment (l) They affect the work of the employee.

(c) Termination by employer (2) Generally covers employment for profit or gain ..

(d) Clasure of establishment and reduction of personnel (3) They directly affect matters of actual employment like
wages and hours of labor.
(e) Disease as ground for termination
'·
(4) They are designed to meet the daily needs of an employee
(f) Termination by employee for sustenance.
11. Retirement from the service
SOCIAL LEGISLATION
12. 13th-month pay
(l) They affect the life of the employee.

IMPORTANT SOCIAL LEGISLATIONS (2) They cover employment for gain or even non-profit
enterprises.
l. New Social Security Law (SSS)
(3) They govern the effect of employment like payment of
2. New Government Service Insurance System (GSIS) ! compensation for injuries sustained while at work,
medicai services available to an employee who gets sick.
3. Comprehensive Agrarian Reform Law
(4) They involve long-range plans, benefits or aspects.
DISCUSSION
2. . GENERAL PROVISIONS OF THE LABOR CODE OF THE
PHILIPPINES
1. LABOR LAWS DEFINED
(A) Declaration of Basic Policy
Labor laws are those laws that govern the rights and
obligations of employers and employees, providing as well for the The state shall afford protection to labor, promote full
rules by which such rights and obligations may be enforced. employment, ensure equal work opportunities regardless of sex, race
278 INTRODUCTION TO LAW
or creed, and regulate the relations between workers and employees.
The state shall assure the rights of workers to self-organization,
collective bargaining, security of tenure and just and human
conditions of work. (Article 3, New Labor Code)
(B) Construction in Favor Of Labor
Ali doubts in the implementation and interpretation of the
provisions of this code, including its implementing rules and
regulations, shall be resolved in favor of labor. (Article 4, New Labor
Code)
3. EMANCIPATION OF TENANTS
(A) Law Enacted
Republic Act No. 6657, otherwise known as the "Compre-
hensive Agrarian Reform Law of 1988."
(B) Policy of the State
The policy of the state is to pursue a Comprehensive Agrarian
Reform Program (CARP). The welfare ofthe landless farmers and
farmworkers will receive the highest consideration to promote social
justice and to move the nation toward sound rural development
and industrializations and the establishment of owner cultivator-
ship of economie size farms as the basis of Philippine agriculture.
(Section 2, 1st paragraph, R.A. No. 6657)
(C) Principles Declared Under Republic Act No. 6657
l. Equitable distribution and ownership of land (Section 2,
2nd paragraph, R.A. No. 6657);
2. Just distribution of ali agricultural lands, subject to
priorities and retention limits, taking into account
ecologica!, developmental, and equity considerations, and
subject to the payment of just compensation (Section 2,
3rd paragraph, R.A. No. 6657);
3. Application of the principles of agrarian reform, or
sterwardship, whenever applicable in accordance with
law (Section 2, 5th paragraph, R.A. No. 6657);
4. Formation and maintenance of economic-size family
farms to be constituted by individuai beneficiaries and
LABOR LAW AND SOCIAL LEGISLATION 279
small landowners (Section 2, 7th paragraph, R.A. No.
6657);
5. Protection of the rights of subsistent fisherman, especially
of local communities, to the preferential use of
commerciai marine and fishing resources, both inland
and offshores (Section 2, 8th paragraph, R.A. No. 6657);
6. The State shall be guided by the principles that land has
a social function and land ownership has a social
responsibility. Owners of agricultural land have the
obligation to cultivate directly or through labor adminis-
tration, the lands they own and thereby make the land
productive. (Section 2, 9th paragraph, R.A. No. 6657)
(D) Coverage of Carp
It shall cover, regardless of tenurial arrangement and com-
modity produced, ali public and private agricultural lands, as
provided in Proclamation No. 131 and Executive Order No. 229,
including other lands of the public domain suitable for agriculture.
(Section 4, R.A. No. 6657)
(E) Priorities
The Department of Agrarian Reform (DAR) in coordination
with the Presidential Agrarian Reform Council (PARC) shall pian
and program the acquisition and distribution of ali agricultural
lands through a period of ten (10) years from the effectivity of R.
A. No. 6657. (Section 7, R.A. No. 6657)
(F) Distribution Limit
No qualified beneficiary may own more than three(3) hectares
of agriculturalland. (Section 23, R.A. No. 6657)
4. REGULATION OF RECRUITMENT ANO PLACEMENT ACTI·
VITI ES
(a) Pursuant to national development objectives and in order
to harness and maximize the use of private sector
resources initiative in the development and implemen·
tation of a comprehensive employment program, the
private employment sector shall participate in the
280 INTRODUCTION TO LAW LABOR LAW AND SOCIAL LEGISLATION 281

recruitment and placement of workers, locally and 6. CONDITIONS OF EMPLOYMENT

overseas, under such guidelines, rules and regulations (A) Bours of Work
as may be issued by the Secretary of Labor. (Article 25,
Labor Code of the Philippines) Article 83. Normal Hours of Work - The nomial hours of
work of any employee shall not exceed eight (8) hours a day.
(b) Travel· agencies and sales agencies of airline companies
are prohibited from engaging in the business of Article 84. Hours Worked - Hours worked shall include (a)
all time during which an employee is required fu be on duty or to
recruitment and placement of workers for overseas
beat a prescribed work piace, and (b) ali the time during which an
employment whether for profit or not. (Article 26, Labor
employee is suffered or permitted to work.
Code of the Philippines)
Rest period of short duration during working hours shall be
(c) Only Filipino citizens or corporations, partnership or counted as hours worked.
entities at least seventy-five percent (75%) of the
aùthorized and voting capitai stock of which is owned Said provisions shall apply to all employees in ali establish-
and controlled by Filipino citizens shall be permitted to ments and undertaking whether for profit or not.
participate in the recruitment and placement of workers,
locally or overseas. (Article 27, Labor Code of the Philip- Exceptions
pines) Said provisions do not apply to:
l. Govemment employees
5. EMPLOYMENT OF NON-RESIDENT ALIENS
2. Managerial employees
(A) Non-resident Aliens Need Employment Permit
Any alien seeking admission to the Philippines for employment
l'll
ii : .
3.
4.
Field personnel
Members of the family of the employer who are dependent
purposes and any domestic or foreign employer who desires to '~ il on him for support
engage an alien for employment in the Philippines shall obtain an 5. Domestic helpers
employment permit from the Department of Labor. (Article 40,
6. Persons in the personnel service of another
Labor Code of the Philippines)

(B) Probibition Against Transfer of Employment

li
i
!
' ;j:.
l. Mter the issuance of an employment permit, the alien
shall not transfer to another job or change his employer
without prior approvai of the Secretary of Labor.
2. Any non-resident alien who shall take up employment
in violation of the provision of this Title and its
lll
implementing rules and regulations shall be punished
in accordance with the provisions of Articles 289 ;md 290
of the Labor Code.
In addition, the alien worker shall be subject to deportation
after service of his sentence. (Article 41,. Labor Code of the
Philippines)
!
~: 7. Workers who are paid by the results as determined by
the secretary of Labor and Employment in appropriate
regulations. (Article 82, Labor Code of the Philippines)
(B) Weekly Rest Period
It shall be the duty of every employer, whether operating for
profit or not, to provide each of his employees a rest period of not
:tf
less than twenty-four consecutive hours after every six (6)
consecutive normal work days. (Article 91, Labor Code of the
Philippines)
Why is there no definite rest day that is fixed by the Labor
Code?
Before the enactment ofthe Labor Code, the Blue Sunday Law
prohibited commerciai, industriai and agricultural establishments
282 INTRODUCTION TO LAW ., LABOR LAW AND SOCIAL LEGISLATION 283

from opening on Sundays to give employees a weekly rest. This (c) As used in this article "holiday" includes New Year's Day,
was however, assailed by religious minorities as unconstitutional Maundy Thursday, Good Friday, the ninth of Aprii, the
and discriminatory because they worship and rest on other days first of May, the twelfth of June, the fourth of July,
than Sunday. For this reason, no definite rest day was fixed by the twenty-sixth of August, the thirtieth of November, tho
Labor Code. twenty-fifth and thirtieth of December, and the day
designated by law for holding generai election. (Article
Can an employer require work on a rest day? 94, Labor Code of the Philippines)
Yes, but only in the following cases, as. specified by Articie 92 A) Regular holidays
of the Labor Code, thus:
New Year's Day January l
(a) In case of actual or impending emergencies caused by
serious accident, fire, flood, typhoon, earthquake, Maundy Thursday Movable date
epidemie or other disaster or calamity to prevent loss of Good Friday Movable date
life and property or imminent danger to the public safety;
Araw ng Kagitingan
(b) In case ofurgent work to be performed on the machinery, (Bataan and Corregidor Day) April9
equipment or installation, to avoid serious loss which the
Labor Day May l
employer would otherwise suffer;
Independence June 12
(c) In the event of abnormal pressure of work due to special
circumstances, where the employer cannot ordinarily be National Heroes Day Last Sunday of August
expected to resort to other measures;
Bonifacio Day November 30
(d) To prevent loss or damage to perishable goods; b:
(.r~
Christmas Day
~~
December 25
(e) Where the nature ofwork requires continuous operations
Rizal Day December 30
and stoppage of work may result in irreparable injury or
loss to the employer; and B) Nationwide special days
(f) Under other circumstances analogous or similar to the Ali Saints Day November l
foregoing as determined by the Secretary of Labor and
Employment. Last Day of the Year December 31

(C) Holidays, Service Incentive Leaves and Service RIGHT TO SERVICE INCENTIVE LEAVE
Cbarges
(a) Every employee who has rendered at least one year of
RIGHT TO HOLIDAY PAY
l
ii
:·J
service shall be entitled to a yearly service incentive leave
of five days with pay.
:i·i~ i
(a) Every worker shall be paid his regular daily wage during
regular holidays, except in retail and service establish- (b) This provision shall not apply to those who are already
ments regularly employing less than ten (10) workers. enjoying the benefit herein provided, those enjoying
vacation leave with pay of at least five days and those
(b) The employer may require an employee to work on any employed in establishments regularly employing less
holiday but such employee shall be paid a compensation than ten (10) employees or in establishments exempted
equivalent to twice his regular ra~. from granting this benefit by the Secretary of Labor after
.!H
284 INTRODUCTION TO LAW LABOR LAW AND SOCIAL LEGISLATION 285

considering the viability or financial condition of such
establishment.
(c) The grant of benefit in excess of that provided herein
shall not be made a subject of arbitration or any court or
administrative action. (Article 95, Labor Code of the
Philippines)
RIGHT TO SERVICE CHARGES
All services charge collected by hotels, restaurants and similar
establishments shall be distributed a t the rate of eighty-five percent
(85%) for all covered employees and fifteen percent (15%) for
management. The share of the employees shall be equally
distributed among them. In case the service charge is abolished,
the share of the covered employees shall be considered integrated
in their wages. (Article 95, Labor Code of the Philippines)
(D) WAGES
. (d.l) MINIMUM WAGE RATE jl'
t-~
HISTORICAL BACKGROUND
Under Republic Act No. 602, otherwise known as the Minimum
Wage Law which took effect on Aprii 6, 1951, the minimum wage
was P4.00 for non-agricultural and P2.50 for agricultural workers.
This was increased by P2.00 under Republic Act No. 4180 and ·}1
by· another P2.00 under Republic Act No. 6129, which took effect
on June 17, 1970. !,.
The minimum wage was increased through presidential
decrees and letter of instructions during the Martial Law regime, J l;
such as Presidential Decree Nos. 928, 1389, 1614, 1634, 1678 and
1713, and Wage Nos. l, 2, 4 and 6, and Letter of Instructions No.
174.
Now, the minimum wage rates are fixed in Republic Act No.
6727, known as the Wage Rationalization Law.
Under this law, Regional 'l'ripartite wage and productivity .ll
j
Boards were constituted. These boards fix, if necessary, a feasible
minimum wage, apart from the NationalCapital Region in Manila
and in about two Autonomous Regions.
l (Article 102, Labor Code ofthe Philippines)
Under Wage Order No. NCR-03, the pertinent portion of the
wage order states as follows:
"All private sector workers and employees in the National
Capitai Region receiving one hundred fifty-four pesos (Pl54.00) per
day payable as follows:
AMOUNT OF INCREASE DATE OF EFFECTIVITY
Pl7.00 Fifteen days after publication
of wage order
PlO.OO Aprii l, 1994
The following are exempted from this provision upon proper
application, thus:
l. Exporting firms, including indirect exporters with
existing forward contracts with their foreign buyers,
principals at the time of effectivity of this wage order
may be exempt during the lifetime of the said contract
but not to exceed twelve (12) months from the effectivity
of this order.
2. Retaillservice establishments regularly employing not
more than ten (10) workers.
3. Distressed firms as defined in the NPWC Revised
Guidelines on Exemption.
(d.2) FORMS OF PAYMENTS
No employer shall pay the wages of an employee by means of
promissory notes, vouchers, coupons, tickets, chits or any object
other than legai tender, even when expressly requested by the
employee.
Payment of wages by check or money order shall be allowed
when such manner of payment is customary on the date of effec-
tivity of this code, or is necessary because of special circumstances
as specified in appropriate regulations to be issued by the Secretary
of Labor or as stipulated in a collective bargaining agreement.
286 INTRODUCTION TO LAW
(d.3) TIME OF PAYMENT
Wages shall be paid at least once every tw'? (2) weeks or twice
a month at intervals not exceeding sixteen (16) days. If on account
of force majeure or circumstances beyond the employer's contro!,
payment of wages on or within the time herein provided cannot be
made, the employer shall pay the wages immediately after such
force majeure or circumstances have ceased. No employer shall
make payment with less frequency than once a month.
The payment of wages of employees engaged to perform a task
which cannot be completed in two (2) weeks shall be subject to the
following conditions, in the absence of a collective bargaining
agreement or arbitration award:
l. That payments are made at intervals not exceeding
sixteen (16) days, in proportion to the amount of work
completed; and
2. That ·final settlement is made upon completion of the
work. (Article 103, Labor Code of the Philippines)
(d.4) PLACE OF PAYMENT
Payment of wages shall be made at or near the place of
undertaking, except as otherwise provided by such regulations as
the Secretary of Labor may prescribe under conditions to ensure
greater protection of wages. (Article 104, Labor Code of the
Philippines)
(d.5) PROHIBITIONS REGARDING WAGES
No employer shall limit or otherwise interfere with the
freedom of any employee to dispose of his wages. He shall not in
any manner force, compel, or oblige his employees to purchase
merchandise, commodities, or other property from the employer or
from any other person, or otherwise make use of any store or
services of such employer or any other person.
No employer, in his own behalf or in behalf of any person,
shall make any deduction from the wages of his employees, except:
i. In case where the worker is insured with his consent by
the employer, and the deduction is to recompense the
employer for the amount paid by him as premium on the
insurance;
LABOR LAW AND SOCIAL LEGISLATION 287
ii. For union dues, in cases where the rigbt of the worker
or bis union to cbeck-off bas been recognized by the
employer or autborized in writing by tbe individuai
!~~ worker concerned; and
iii. In .cases wbere tbe employer is autborized by law or
regulations issued by tbe Secretary ofLabor. (Articles112
and 113, Labor Code of the Philippines)
(d.6) WAGE STUDIES ~'1) DETERMINATION
Tbe Wage Commission in tbe Department of Labor sball
conduct a continuing study of wage rates in tbe various agricultural
,IJl and non-agricultural industries ali over tbe country. The results of
·•J
sucb study sball be periodically disseminated to tbe govemment,
labor and management sectors for tbeir information and guidance.
If after sucb study, tbe Commission is of tbe opinion tbat a
{r substantial number of employees in a given industry are receiving
wages wbicb, altbougb complying witb tbe minimum provided by
law, are less tban sufficient to maintain tbem in bealtb, efficiency
and generai well-being, taking into account, among otbers, the
peculiar circumstances of tbe industry and its geograpbicallocation,
tbe Commission sball, witb tbe approvai of the Secretary of Labor,
proceed to determine wbetber a wage recommendation sball be
issued. (Article 120, Labor Code of the Philippines)
(E) Employment of Minors
Minimum employable age -(a) No cbild below fifteen (15)
years of age shall be employed, except wben be works directly under
the sole responsibility of his parents or guardian, and bis
employment does not in any way interfere witb bis scbooling.
(b) Any person between fifteen (15) and eigbteen (18) years
of age may be employed for sucb number of bours and such periods
of the day as determined by tbe Secretary of Labor in appropriate
regulations.
(c) Tbe foregoing provisions sball in no case allow the
employment of a person below eigbteen (18) years of age in an
undertaking wbicb is bazardous or deleterious in nature as
determined by tbe Secretary of Labor.
Prohibition against child discrimination - No employer sball
discriminate against any person in respect to terms and conditions
·tnl l
288 INTRODUCTION TO LAW
of employment on account of his age. (Articles 139 and 140, Labor
Code of the Philippines)
7. NLRC (NATIONAL LABOR RELATIONS COMMISSION)
Jurisdiction of Labor Arbiters and the Commission - (a) The
Labor Arbiters shall have the originai and exclusive jurisdiction to
hear and decide within thirty (30) working days after submission
of the case by the parties for decision, the following cases involving
all workers whether agricultural or non-agricultural (Article 217,
Labor Code of the Philippines):
(l) Unfair labor practices cases;
(2) Those that workers may file involving wages, hours
of work and other terms and conditions of employment;
(3) All money claims of workers, including those based
oli. non-payment or underpayment of wages, overtime
compensation, separation pay and other benefits provided by
law or appropriate agreement, except claims for employees
compensation, social security, medicare and maternity benefits;
(4) Cases involving household services; and
(5) Cases arising from any violation of Article 265 of
this Code, including questiona involving the legality of strikes
and lockouts.
(b) Technical rules not binding. -In proceeding before the
Commission or any ·of the Labor Arbiters, the rules of evidence
prevailing in courts of law or equity shall not be controlling and it
is the spirit and intention of this Code that the Commission and
its members and the Labor Arbiters shall use every and all
reasonable means to ascertain the facts in each case speedily and
objectively and without regard to technicalities of law or procedure,
all in the interest of due process. In any proceeding before the
Commission of any Labor Arbiter, the parties may be represented
by legai counsel but it shall be the duty of the Chairman, any
Commissioner or any Labor Arbiter to exercise complete control of
the proceedings at all stages. (Article 221, Labor Code of the
Philippines)
(c) Appeal from decision of NLRC. - Decisions, awards, or
orders of the Labor Arbiters or compulsory arbitrators are final
LABOR LAW AND SOCIAL LEGISLATION 289
and executory unless appealed to the Commission by any or both
of the parties within ten (10) days from receipt of such awards,
orders, or decisions. Such appeal may be entertained only on any
ofthe following grounds (Article 223, Labor Code ofthe Philippines):
(a) lf there is prima facie evidence of abu.se of discretion on
the part of the Labor Arbiter or compulsory arbitrator;
(b) Ifthe decision, order, or award was secured through fraud
:>~>
i
or coercion, including graft and corruption;
(c) If made purely on questiona oflaw; and
·!lì (d) lf serious errors in the findings of facts are raised which
!
would cause grave or irreparable damage or injury to the appellant.
·m
To discourage frivolous or dilatory appeals, the Commission
or the Labor Arbiter shall impose reasonable penalty, including fines
f~ì
>l! or censures, upon the e:rring parties.
~M
In all cases, the appellant shall furnish a copy of the
memorandum of appeal to the other party who shall file an answer
not later than ten (10) days from receipt thereof.
l~­
Il
l
The Commission shall decide all cases within twenty (20)
working days from receipt of the answer of the appellee.
The decision of the Commission is appealable to the Secretary
of Labor on any of the following grounds:
(a) lf there is a prima facie evidence of abuse of discretion;
(b) If made purely on questiona oflaw; and
(c) If there is a showing that the national security or social
and economie stability is threatened.
The decision of the Commission shall be immediately
executory, even pending appeal, unless stayed by an order of the
Secretary of Labor for special reasons. The decision of the Secretary
'il!' of Labor shall be inimediately executory; Provided, That the
!:
·"{
President of the Philippines may assume jurisdiction over any cases
which he considera national interest cases. ·
ìUti
The Philippine Constabulary and other law enforcement
agencies may be deputized. by the Secretary of Labor in the
enforcement of orders, decisions or awards. (As amended by P.D.
No. 1367; referto P.D. No. 1391)
290 INTRODUCTION TO LAW LABOR LAW AND SOCIAL LEGISLATION 291

8. UNFAIR LABOR PRACTICES
CONCEPT OF UNFAIR LABOR PRACTICE AND
PROCEDURE FOR PROSECUTION THEREOF
Unfair labor practices violate the constitutional right of
workers and employees to self-organization, and inimicai to the
legitimate interests of both labor and management, including their
right to bargain collectively. They disrupt industriai peace and
hinder the promotion of healthy and stable labor-management
relations.
Consequently, unfair labor practices are not only violations of
the civil rights ofboth labor and management but are also criminal
offenses against that State which shall be subject to prosecution
and punishment as herein provided.
Subject to the exercise by the President (Prime Minister), or
by the Minister of Labor, of the powers vested in them by Articles
264 and 265 of this Code, the civil aspects of ali cases involving
unfair labor practices, which may include claims for damages other
affirmative relief, shall be under the jurisdiction of the labor
arbiters. They shall resolve such cases within thirty (30) working
days from the time they are submitted for decision.
Recovery of civil liability in the administrative proceedings
shall bar recovery under the Civil Code.
(a) To interfere with, restrain, or coerce employees in the
exercise of their right to self-organization;
(b) To require as a condition for employment that a person
or an employee shall not join a labor organization or shall withdraw
from one to which he belongs;
(c) To contract out services or functions being performed by
union members when such will interfere with, restrain, or coerce
employees in the exercise of their right to self-organization;
(d) To initiate, dominate, assist or otherwise interfere with
the information of administration of any labor organization, includ-
ing the giving of financial or other support to i t or its organizers or
officers;
(e) To discriminate in regard to hire or tenure of employment
or any term of employment in order to encourage or discourage
,j membership in any labor organization. Nothing in this Code or in
any other law shall prevent the parties from requiring membership
!;111
in a recognized collective bargaining agent as a condition for
,.i'd
l! employment, except of those employees who are already members
IJ! of another union at the time of the signing of the collective
t'' bargaining agreement. Employees belonging to an appropriate
'lÌ
~~l collective bargaining unit who are not members of the recognized
!j collective bargaining agent may be assessed a reasonable fee
lì equivalent to the dues and other fees paid by members of the
·,~i

No criminal prosecution under this Title may be instituted \li recognized collective bargaining agent, if such non-union members
without a final judgment, finding that an unfair labor practice was ·~q
,Il
accept the benefits under the collective bargaining agreement.
committed, having been first obtained in the preceding paragraph. 1: Prouided, That the individuai authorization required under Artide
During the pendency of such administrative proceeding, the running !11;
'n. 242, paragraph (0) ofthis Code shall not apply to non-members of
of the period of prescription of the criminal offense herein penalized t the recognized collective bargaining agent;
~Ili
shall be considered interrupted: Prouided, howeuer, That the final ')Uf;
judgment in the administrative proceedings ·shall not be binding ,_, (f) To dismiss, discharge, or otherwise prejudice or
in the criminal case nor be considered as evidence of guilt but ! discriminate against an employee for having given or being about
merely as proof of compliance of the requirements therein set forth. to give testimony under this Code;
(As amended by B.P. Blg. 70) (Article 247, Labor Code ofthe
·.'lil;i (g) To violate the duty to bargain collectively as prescribed
Philippines) by this Code;
.
''
ti

UNFAIR LABOR PRACTICES OF EMPLOYERS
It shall be unlawful for an employer to commit any of the
following unfair la.bor practices (Article 248, Labor Code of the
Philippines):
(h) To pay negotiation or attorney's fees to the union or its
officers or agents as part of the settlement of any issue in collective
bargaining or any other dispute; or
(i) To violate a collective bargaining agreement.
292 INTRODUCTION TO LAW
The provisions of the preceding paragraph notwithstanding,
only the officers and agents of corporations, associations or
partnership who have actually participated in, authorized or ratified
unfair labor practices shall be held criminally liable. (As amended
by Batas Pambansa Blg. 130)
UNFAIR LABOR PRACTICES OF LABOR ORGANIZATIONS
It shall be unlawful for a labor organization, its officers, agents
or representatives to commit any of the following unfair labor
practices:
(a) To restrain or coerce employees in the exercise of their
right to self-organization: Provided, That the labor organization
shall have the right to prescribe its own rules with respect to the
acquisition or retention or membership;
(b) To cause or attempt to cause an employer to discriminate
against an employee with respect to whom membership in such
organization has been denied or terminated on any ground other
than the usual terms and conditions under which membership
continuation is made available to another member;
(c) To violate the duty, or refuse to bargain collectively with
the employers, provided that it is the representative of the em-
ployees;
(d) To cause or attempt to cause an employer to pay or deliver
or agree to pay or deliver any money or other things of value, and
the nature of an exaction, for services which are not performed or
not to be performed, including the demand for a fee for union
negotiation;
(e) To ask for or accept negotiation or attorney's fee from
employers as part of the settlement of any issue in collective
bargaining or any other dispute; or
(f) To violate a collective bargaining agreement.
The provisions of the preceding paragraph notwithstanding,
only the officers, members of the governing boards, representatives
or agents or members of labor associations or organizations who
have actually participated in, authorized or ratified unfair labor
practices shall be held criminally liable. (As amended by Batas
Pambansa Blg. 130) (Article 249, Labor Code of the Philippines)
LABOR LAW AND SOCIAL LEGISLATION 29:4
9. STRIKES ANO LOCKOUTS
Strikes, picketing, and lockouts - (a) It is the policy of tho
State to encourage free trade unionism and free collectivo
bargaining. (Article 263, Philippine Labor Relation:s Law)
(b) Workers shall have the right to engage in concerted
activities for purposes of collective bargaining or for their mutuai
} benefit and protection. The right of legitimate labor organizations
'~~.,
to strike and picket and of employers to lockout, consistent with
the national interest, shall continue to be recognized and respected.
However, no labor union may strike and no employer may declare
a lockout on grounds involving inter-union and intra-union disputes.
i~
(c) In cases of bargaining deadlocks, the duly certified or
3
~~
recognized bargaining agent may file a notice of strike or the
employer may file a notice of lockout with the Department a t least
~ 30 days before the intended date thereof. In cases of unfair labor
li'i practice, the period of notice shall be 15 days and in the absence of
~
k a duly certified or recognized bargaining agent, the notice of strike
,i
may be filed by any legitimate labor organization in behalf of its
y members. However, in case of dismissal from employment of union
"
~
u
officers duly elected in accordance with the union constitution and
~ by-laws, which may constitute union busting where the existence
~
of the union is threatened, the 15-day cooling-off period shall not
.,l apply and the union may take action immediately.
'l
(d) The notice must be in accordance with such implementing
rules and regulations as the Secretary of Labor and Employment
:~ may promulgate.
·l'i
;'r{
(e) During the cooling-off period, it shall be the duty of the
Secretary to exert ali efforts at mediation and conciliation to effect
a voluntary settlement. Should the dispute remain unsettled until
the lapse of the requisite number of days from the mandatory filing
of notice, the labor union may strike or the employer may declare
a lockout.
(f) A decision to declare a strike must be approved by a
majority of the total union membership in the bargaining unit
concerned, obtained by secret ballot meetings or referenda called
for that purpose. A decision to declare a lockout must be approved
by a majority of the board of directors of the corporation or
association or of the partners in a partnership, obtained by secret
ballot in a meeting called for that purpose. Thc decision shall be
~~i
294 INTRODUCTION TO LAW
valid for the duration of the dispute based on substantially the
same grounds considered with the strike or lockout vote was taken.
The Department may, at its own initiative or upon the request of
any affected party, supervise the conduct of the secret balloting. In
every case, the union or the employer shall furnish the Department
the results of the voting a t least seven (7) days before the intended
strike or lockout, subject to the cooling-off period herein provided.
(g) When in his opinion, there exists a labor dispute causing
or likely to cause a strike or lockout in an industry indispensable
to the national interest, the Secretary of Labor and Employment
may assume jurisdiction over the dispute and decide it or certify
the same to the Commission for compulsory arbitration. Such
assumption or certification shall have the effect of automatically
enjoining an impending strike or lockout as specified in the
assumption or certification order. lf one has already taken piace a t
the time of assumption or certification, all striking or locked out
employees shall have immediately return to work and the employer
shall immediately resume operations and readmit all workers under
the same terms and conditions prevailing before the strike or
lockout. The Secretary of Labor and Employment or the Commission
may seek the assistance of law enforcement agencies to ensure
compliance with this provision as well as with such orders as he
may issue to enforce the same.
In line with the national concern for and the highest respect
accorded to the right of patients to life and health, strikes and
lockouts in hospitals, clinics and similar medicai institutions shall,
to every extent possible, be avoided, and all serious efforts, not
only by labor and management but government as well, be
exhausted to substantially minimize, if not prevent, their adverse
effects on such life and health, through the exercise, however,
legitimate, by labor of its right to strike and by management to
lockout. In labor disputes adversely affecting the continued
operation of such hospitals, clinics or medicai institutions, it shall
be the duty of the striking union or locking-out employer to provide
and maintain an effective skeletal workforce of medicai and other
health personnel, whose movement and services shall be
unhampered and unrestricted, as are necessary to ensure the proper
and adequate protection of the life and health of its patients, most
especially emergency cases, for the duration of the strike or lockout.
In such cases, therefore, the Secretary of Labor and Employment
is mandated to immediately assume, within twenty-four (24) hours
LABOR LAW AND SOCIAL LEGISLATION 29ti
from knowledge of the occurrence of such a strike or lockout,
jurisdiction over the same or certify it to the Commission for
compulsory arbitration. For this purpose, the contending parties
are strictly enjoined to comply with such orders, prohibitions and/
or injunctions as are issued by the Secretary of Labor and
Employment or the Commission, under paih of immediate
disciplinary action, including dismissal or loss of employment
~~
status, or payment by the locking-out employer of backwages,
l damages or other affirmative relief, even criminal prosecution
against either or both of them.
The foregoing notwithstanding, the President of the Philip-
pines shall not be precluded from determining the industries that,
in his opinion, are indispensable to the national interest, and from
intervening at any time in assuming jurisdictìon over any such labor
dispute in order to settle or terminate the same.
(h) Before or at any state of the compulsory arbitration
process, the parties may opt to submit their dispute to voluntary
arbitration.
i' (i) The Secretary of Labor and Employment, the Commission
'-·
.l:
l
or the voluntary arbitrator shall decide to resolve the dispute within
)lt<
thirty (30) calendar days from the date of the assumption of
~
l jurisdiction or the certification or submission of the dispute, as the
'
l
case may be. The decision of the President, the Secretary of Labor
~:
and Employment, the Commission or the voluntary arbitrator shall
:!"
lj be final and executory ten (10) calendar days after receipt thereof
1
.!...~
.,
;
by the parties .
Prohibited activities- (a) No labor organization or employer
shall declare a strike or lockout without first having bargained
collectively in accordance with Title VII of this Book or without
first having filed the notice required in the preceding Article or
without the necessary strike or lockout vote first having been
obtained and reported to the Department. (Article 264, Philippine
Labor Relations Law)
illlf
No strike or lockout shall be declared after assumption of
jurisdiction by the President or the Secretary or after certification
or submission of the dispute to compulsory or voluntary arbitration
or during the pendency of cases involving the same grounds for
the strike or lockout.
296 INTRODUCTION TO LAW
Any worker whose employm:mt has been terminated as a
consequence of an unlawful lockout shall be entitled to reinstate-
ment with full backwages. Any union officer who knowingly
participates in an illegal strike and any worker or union officer
who knowingly participates in the commission ofillegal acts during
a strike may be declared to have lost his employment status:
Provided, That mere participation of a worker in a lawful strike
shall not constitute sufficient ground for termination of his
employment, even ifa replacement has been hired by the empl9yer
during such lawful strike.
~j
(b) No person shall obstruct, impede, or interfere with by
!
force, violence, coercion, threats or intimidation any peaceful
picketing by employees during any labor controversy or in the
exercise of the right of self-organization or collective bargaining,
or shall aid or abet such obstruction or interference.
(c) No employer shall use or employ any strike-breaker, nor
shall any person be employed as a strike-breaker.
(d) No public official or employee, including officers and
personnel of the New Armed Forces of the Philippines of the
Integrated N ational Police, or arme d perso n, shall bring in,
·cl
introduce or escort in any manner any individuai who see:ks to
replace strikers in entering or leaving the premises of a strike area,
or work in place of the strikers. The Police Force shall keep out of
the picket lines unless actual violence or other criminal acts occur
therein: Provided, That nothing herein shall be interpreted to
prevent any public officer from taking any measure necessary to
maintain peace and order, protect life and property, and/or enforce
the law and legai order.
(e) No person engaged in picketing shall commit any act of
violence, coercion or intimidation, or obstruct the free ingress to or
egress from the employer's premises for lawful purposes, or obstruct
thoroughfares.
,/lÌ
10. TERMINATION OF EMPLOYMENT
In regular cases of regular employment, the employer shall
not terminate the services of an employee except for a just cause
or when authorized by this Title. An Employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages,
LABOR LAW AND SOCIAL LEGISLATION 297
inclusive of allowances, and to his other benefits or their monetory
equivalent computed from the time his compensation was withheld
from him up to the time of his actual reinstatement. (As amended
by Section 34, lbid.) (Article 279, Philippine Labor Relations Law)
REGULAR ANO CASUAL EMPLOYMENT .
This provision of written agreement to the contrary notwith-
standing and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has
been engaged to perform activities which are usually necessary or
desirable in the usual business or trade of the employer, except
where the employment has been fixed for a specific project or
undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee or where
the work or services to be performed is seasoned in nature and the
employment is for the duration of the season.
An employment shall be deemed casual if it is not covered by
the preceding paragraph: Provided, That any employee who has
rendered at least one year of service, whether such service is
continuous or broken, shall be considered a regular employee with
ifl
respect to the activity in which he is employed and his employment
p
shall continue while such actually exists. (Article 280, Philippine
ti,,
Labor Relations Law)
;
PROBATIONARY EMPLOYMENT
Probationary employment shall not exceed six (6) months from
the date the employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The services
of any employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to qualifY as a
regular employee in accordance with reasonable standards made
known by the employer to time of his engagement. An employee
who is allowed to work after a probationary period shall be
considered a regular employeè. (Article 281, Philippine Labor
Relations Law)
TERMINATION BY EMPLOYER
An employer may terminate an employee for any of the
following causes:
298 INTRODUCTION TO LAW
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or represèntative in
connection with his work;
(b) Gross and habitual neglect by the employee ofhis duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against
the person of his employer or any immediate member of his family.
of his duly authorized representative; and
(e) Other causes analogous to the foregoing. (Article 282,
Philippine Labor Relations Law)
CLOSURE OF ESTABLISHMENT ANO REDUCTION
OF PERSONNEL
The employer may also terminate the employment of any
employee due to the installation of labor-saving devices, redundancy,
retrenchment to prevent losses or the closing or cessation of
operation of the establishment or undertaking unless the closing
is for the purpose of circumventing the provisions of this Title, by
serving a written notice on the workers and the Department of
Labor and Employment at least one (l) month before the intended
date thereof. In case of termination due to the installation of labor-
serving devices or redundancy, the worker affected thereby shall
be entitled to a separation pay equivalent of at least his one (l)
month pay or at least one (l) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent losses in
cases of closures or cessation of operation of establishment or
undertaking not due to serious business losses or financial reverses,
the separation pay shall be equivalent. to one (l) month pay or at
least one-half (1/2) month pay for every year of service, whichever
is higher. A fraction of at least six (6) months shall be considered
one (l) whole year. (Article 283, Philippine Labor Relations Law)
DISEASE AS GROUND FOR TERMINATION
An employer may terminate the services of an employee who
has been found to be suffering from any disease and whose
continuos employment is prohibited by law or is prejudicial to his
health as well as to the health of his co-employees: Provided, That
LABOR LAW AND SOCIAL LEGISLATION 299
ii
he is paid separation pay equivalent to at least one (l) month salary
:lf orto one-half (1/2) month salary for every year of service, whichever
:j is greater, a fraction of at least six (6) months being considered aa
l one (l) whole year. (Article 284, Philippine Labor Relations Law)
TERMINATION BY EMPLOYEE ·
(a) An employee may terminate without just cause the
J employer-employee relationship by serving a written notice on the
employer at least one (l) month in advance. The employer upon
whom no such notice was served may hold the employee liable for
damages.
(b) An employee may put an end to the relationship without
serving any notice on the employer for any of the following just
causes:
(l) Serious insult by the employer ofhis representative
on the honor and person of the employee;
(2) Inhuman and unbearable treatment accorded the
employee by the employer or his representative;
(3) Commission of a crime or offense by the employer
or his representative against the person of the employee or
any of the immediate members of his family; and
(4) Other causes analogous to any of the foregoing.
(Article 285, Philippine Labor Relations Law)
11. RETIREMENT FROM THE SERVICE
Any employee may be retired upon reaching the retirement
age established in the collective bargaining agreement or other
applicable employment contract.
In case of retirement, the employee shall be entitled to receive
such retirement benefits as he may be earned under existing laws
and any collective bargaining or other agreement. (Article 287,
Philippine Labor Relations Law)
12. THIRTEENTH MONTH PAY
The thirteenth month pay shall not be less than one-twelfth
(1112) ofthe total basic salary eamed by an employee within a year.
It is not to be considered as part of the regular wage for purposes
300 INTRODUCTION TO LAW
of computing overtime and premium compensation, SSS, Medicare
and company retirement plans, unless expressly stipulated to be a
part pursuant to a collective bargaining agreement between the
employer and the worker or by existing practice or policy by the
employer.
For purposes of computing the same, the "basic salary'' shall
include all remuneration or earnings paid by his employer for
services rendered but does not include allowances and monetary
benefits which are not considered or integrated as part of the
regular or basic salary, such as cash equivalent of unused vacation
and sick leave credits, overtime, premium, night differential and
holiday pay and cost-of-living allowances. However, the salary
related benefit should be included as part of the basic salary in the
computation of the 13th-month pay if by individuai or collective
agreement, company practice or policy, the same are treated as part
of the basic salary.
(a) NATURE OF THIRTEENTH MONTH PAY
The court has held that for covered employers, the payment
of a 13th moth pay is a mandatory statutory obligation, whereas,
Christmas or mid-year bonuses are contractual obligations, such
that if there exists no agreement between the employer and the
workers, or practice or policy of the employer, granting the
Christmas or mid-year bonus, the same will not accrue. The grant
of 14th-month pay is not likewise a statutory obligation but purely
a management prerogative and only the 13th-month pay is
mandated by law to be paid. It is now a basic labor standard benefit
and cannot be substituted by the grant by the employer of food
and electricity to his employees. (Framalis Farms vs. Minister of
Labor and Employment, 177 SCRA 89)
(b) EMPLOYERS EXEMPTED FROM COVERAGE
The following employers are not covered by the Presidential
Decree No. 851:
b.l) The Government and any of its politica! subdivisions,
including government-owned and controlled corporations,
except those corporations operating essentially as private
subsidiaries of the Government;
l LABOR LAW AND SOCIAL LEGISLATION 301
b.2) Employer of household helpers and persons in the
personal service of another in relation to such workers;
b.3) Employer already paying their employees 13th-month
pay or more in the calendar year or its equivalent at the
time of this issuance; and
b.4) Employers of those who are paid on pùrely commission,
boundary, or task basis, and those who are paid fixed
amount for performing specific work, irrespective of the
time consumed in the performance thereof, except when
the workers are paid on piece-rate basis in which case
the employer shall be covered by this issuance insofar
as such workers are concerned.
The term "its equivalent" as used in paragraph (c) shall include
Christmas bonus, mid-year bonus, cash bonuses and other payment
amounting to not less than 1/12 of the basic salary but shall not
include cash and stock dividends, costs-of-living allowances and all
the other allowances regularly enjoyed by the employee, as well as
non-monetary benefits. Where an employer pays less than l/12th
of the employees basic salary, the employers shall pay the difference.
As used herein, workers paid on piece-rate shall refer to those
who are paid a standard amount for every piece-rate or unit of
work performed that is more or less regularly replicated, without
regard to the time spent in producing the same. (Section 3, Rules
Implementing P.D. No. 851) (Rules Implementing P.D. 851)
IMPORTANT SOCIAL LEGISLATIONS
(1) SOCIAL SECURITY LAW
BACKGROUND
The Social Security Law was approved on June 18, 1957, and
implemented on September l, 1957.
Membership in the Social Security System does not emanate
from a bilaterial or consensual agreement where the rights and
obligations of the parties are defined, but from a legai imposition
to provide social security to working men.
As conceived, and as it is now being implemented, the
employees are mandated during their productive years to part with
,j
a portion of their earnings which, together with the contributions
:il
302 INTRODUCTION TO LAW
required of their employers, are accumulated and held in. reserve
by the system to answer for the payment of benefits when they
become due.
SCOPE OF THE SYSTEM
(a) SEC. 9. Compulsory Coverage - (a) Coverage in the
SSS shali be compulsory upon ali employees not over sixty (60)
years of age of their employer; Provided, That any benefit already
earned by employees under private benefits plan existing at the
time of the approvai of this Act shali not be discontinued, reduced
or otherwise impaired; Provided, further, That private plans which
are existing and in force at the time of the compulsory coverage
shali be integrated with the plan of the SSS in such a way where
the employer's contribution to his private plan is more than that
required of him in this Act he shali pay to the SSS only the
contnbution required of him and he shali continue his contributions
to such private plan less his contribution to the SSS so that the
einployer's total contribution to his private benefit pian and to the
SSS shali be the same as his contribution to his private plan before
the compulsory coverage; Provided, further, That any changes,
adjustments, modifications, eliminations or improvements in the
benefits to be available under the remaining private plan, which
may be necessary to adopt by reason of the reduced contributions
thereto as a result of the integration, shali be subject to agreements
between the employers and employees concerned; Provided, further,
That the private benefit plan which the employer shali continue
for his employees shali remain under the employer's management
and control unless there is an existing agreement to the contrary:
Provided, finally, That nothing in this Act shali be construed as a
limitation of the right of employers and employees to agree on and
adopt benefits which are over and above those provided under this
Act. (As amended by Sec. 5, R.A. No. 1792; and Sec. 5, R.A. No.
2658 and Sec. 2, R.A. No. 4587) (Sec. 9[a], R.A. 1161 as amended)
(b) Filipino recruited in the Philippines by foreign-based
employers for employment abroad may be covered by the SSS on a
voluntary basis. (As amended by Sec. 2, Pres. Decree No. 177, S-
1973 and Sec. 6, Pres. Decree No. 735-S-1975) (Sec. 9[b], R.A. 1161,
as amended)
In determining coverage of an employer operating different
businesses, it is immaterial as to which business the employee is
LABOR LAW AND SOCIAL LEGISLATION 303
assigned or working. lt is the employer and not the business that
is subject to Social Security compulsory coverage.
SEC. 9-A. Compulsory Coverage of the Self-employed.
- Coverage in the SSS shali also be compulsory upon ali self-
employed persons earning Pl,SOO or more per annum; Provided,
That the effectivity of coverage of certain gtoup of self-employed
shali be determined by the Commission under such rules and
regulations it may prescribe; Provided, further, That the efl'ectivity
of the coverage of the foliowing self-employed persons shall be in
accordance with Section lO(b) hereof:
l. Ali self-employed professionals licensed by the Profes-
sional Regulations Commission or those licensed to
practice law.
2. Partners and single proprietors of businesses.
3. Actors and actresses, directors, scriptwriters and news
correspondents who do not fali within the definitions of
the term "employee" in Section S(d) ofthis Act.
4. Professional athletes, coaches, trainers licensed by the
Games and Amusements Boards as well as jockeys and
trainers licensed by the Philippine Racing Commission.
Unless otherwise specified herein, ali provisions of the SSS
Law applicable to covered employees shall also be applicable to the
covered self-employed persons. (As amended by Section 3, Pres.
Decree No. 1636, S-1979)
555. BENEFITS
l. Dependents' Pension - The dependents' pension shall
be equivalent to 10 percent of the monthly pension for each
dependent child but not exceeding five, beginning with the youngest
and without substitution. (As amended by Sec. 4, P.D. No. 1202, S·
1977) (Sec. 12-A, as amended by Sec. 4, P.D. No. 1202, S-1977; [a),
R.A. 1161, as amended.)
2. Retirement Benefits -
(a) A covered employee who had paid at least 120 monthly
contributions prior to the semester of his retirement, and;
(2.a.l) Who has reached the age of 60 years and is not
receiving monthly compensation of a t least P300 or;
304 INTRODUCTION TO LAW \
(2.a.2) Who has reached the age of 65 years, shall be
entitled for as long as he lives to the monthly pension,
Provided, That his dependents horn before his retirement of
a marriage subsisting when he was 57 years old shall be
entitled to the dependents' pension. (As amended by Sec. 4, P.
D. No. 1202, S-1977) (Sec. 12-B, as amended by Sec. 4, P.D.
No. 1202, S-1977)
(b) A covered member who is 60 years old at retirement and
who does not qualify for pension benefits under paragraph (a) above,
shall be entitled to lump sum benefit equal to the total contributioris
paid by him and on his behalf; Provided, That he is separated from
employment and is not continuing payment of contributions to the
SSS on his own. (Sec. 12-B[b], as amended by Sec. 4, P.D. No. 1202,
S-1977)
(c) The monthly pension shall be reduced upon the re-
employment of a retired employee who is less than 65 years old by
an amount equivalent to one-half (1/2) his earnings over P300. He
shall again be subject to Sec. 18 and his employer to Sec. 19 of this
Act. (As amended by Sec. 7, R.A. No. 1972; Sec. 7, R.A. No. 2658;
Sec. 8, P.D. No. 735; Sec. 4, P.D. No. 1202 and Sec. 7, P.D. No.
1636, S-1979). (Sec. 12-B[c], as amended by Sec. 4, P.D. No. 1202,
S-1977)
(d) Upon the death of the retired employee pensioner, his
primary beneficiaries as of the date of his retirement shall be
entitled to 100 percent of the monthly pension and his dependents
to the dependents' pension. Provided, That if he has no primary
beneficiaries and he dies within 60 months from the start of his
monthly pension, his secondary beneficiaries shall be entitled to a
lump sum benefit equivalent to the bigger of (l) 20 times the
monthly pension, or (2) the difference of 60 times the monthly
pension and the total monthly pension paid by the SSS excluding
the dependents' pension. (As amended by Sec. 7, P.D. No. 1636, S-
1979 andE. O. No. 102, signed December 24, 1986; SSS Res. Nos.
525, 527 and 604 dated Aug. 3, 1990, Aug. 7, 1990 and Sept. 11,
1990, respectively). (Sec. 12-B[d], as amended by Sec. 4, P.D. No.
1202, S-1977)
3. Death Benefits- Upon the covered employee's death,
his primary beneficiaries shall be entitled to the monthly pension
and his dependents' pension to the dependent's pension; Provided,
t
l
IIt
m
'Il
LABOR LAW AND SOCIAL LEGISLATION
That he has paid at least 36 monthly contributions prior to the
305
semester of death; Provided, further, That if the foregoing condition
is not satisfied, his primary beneficiaries shall be entitled to a lump
sum benefit equivalent to 35 times the monthly pension; Provided,
further, That if he has no primary beneficiaries, his secondary
beneficiaries shall be entitled to a lump sum benefit equivalent to
;[ 20 times the monthly pension. Provided, however, That the
iì minimum death benefit shall not be less than the total contribution
il
:l paid by him and his employet on his behalf nor less than Pl,OOO.
;l~<~ Provided, finally, That the beneficiaries of the covered employee
who dies without having paid at least three monthly contributions
shall be entitled to the mi:t;1imum benefit. (As amended by Sec. 5,
P.D. No. 1202, S-1977 and Sec. 8, P.D. No. 1636, S-1979) (Sec. 13,
, SSS Law, as amended by Sec. 5, P.D. No. 1202, S-1977 and Sec. 8,
P.D. No. 1636, S-1979)
4. Permanent Disability Benefits -(a) Upon the covered
employee's permanent total disability, if such disability occurs after
he had paid at least 36 monthly contributions prior to the semester
j·
j disability, he shall be entitled to the monthly pension and his
dependents to the dependents' pension; Provided, That if the
disability occurs before he has paid 36 monthly contributions prior
to the semester disability, he shall be entitled to a lump sum benefit
equivalent to 35 times the monthly pension; Provided, further, That
the minimum disability benefit shall not be less than the total
contributions paid by him and his employer on his behalf nor less
than Pl,OOO. Provided, further, That a covered employee who
becomes permanently totally disabled without having paid at least
three monthly contributions shall be entitled to the minimum
benefit; Provided, finally, That a member who (l) received a lump
sum benefit and (2) is re-employed not earlier than one year from
the day of his disability shall again be subject to compulsory
coverage and considered a new meniber. (As amended by Sec. 6, P.
D. No. 1202, S-1977) (Sec. 13-A, as amended by Sec. 6, P.D. No.
1202, S-1977)
5. Permanent Partial Disability- If the .disability is
permanent partial and such disability occurs after 36 monthly
contributions have been paid prior to the semester of disability,
the benefits shall be the monthly pension for permahent total
disability payable not longer than the period designated in the
following schedule:
il.'.,
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:>:
'
306 INTRODUCTION TO LAW LABOR LAW AND SOCIAL LEGISLATION 307

COMPLETE AND PERMANENT
LOSS OF USE OF
One thumb
One index finger
One middle finger
One ring finger
One little finger
NUMBER OF.MONTHS (b) Ali non-permanent employees ofthe national government
agencies and local governments (appointed for a period of at least
two months), shall eventually be compulsorily covered, either
10
simultaneously, in phases or by groups, upon approvai of the
8 President ofthe Philippines and subject to the availability offunds;
6 :ll'i an d
5 ( (c) Ali non-permanent employees of government-owned or
\ controlled corporation shall be compulsorily covered upon approvai
3 f>

One big toe 6 d by the System of the request for membership of their respective
Il; governing Boards. (Sec. 3, Revised Government Service Insurance
One hand 39 B, Act.)
50 1ì,
Onearm H,
Employees not covered under P.D. No. 1146- Government
One foot 31 employees who have separate retirement schemes under speciai
One leg 46
:;!.,. laws, like Republic Act No. 910 as amended, which provides for
i
One ear lO :ì retirement for justices, judges and other members of the judiciary
and Republic Act No. 340 for members of the Armed Forces of the
Both ears 20
+l Philippines, are covered by their respective retirement laws and
Hearing of one ear lO l;
t
not by P.D. No. 1146. Their life insurance coverage, however, is
l:
Hearing of both ears 50 governed by C.A. No. 186, as amended.

Sight of one eye 25

BENEFITS
(2) GSIS (GOVERNMENT SERVICE INSURANCE SYSTEM)
Qualified members and pensioners of the System are entitled
to the following benefits:
BACKGROUND
The government Service Insurance System (GSIS) was created l. Retirement Benefits -
and established to promote the efficiency and welfare of the (l) Retirement Benefits for old ages (Sections 11 and
employees ofthe government and to pension system under Act Nos. 12);
1638, 3055 and 1313.
(2) Permanent Disability Benefits (Sections 14 and 15);
The first comprehensive law on retirement and pension
benefits was Commonwealth Act No. 186 of 1936. (3) Survivorship Benefits for Death of Member or
Pensioner (Sections 16, 17 and 18);
COVERAGE (4) Funeral Benefits (Section 19);
The following are compulsorily covered by the GSIS: (5) Sickness Benefits (Section 20); and
(a) All permanent employees below sixty (60) years of age, (6) Life Insurance Benefit in the form of Compulsory
shall· upon employment in the government service, be compulsory Insurance Optional lnsurance if desired (SectionB
members of the System including non-permanent employees who 21 and 22).
are already covered by R.A. No. 4968 at the time of effectivity of i
P.D. 1146; .l
308 INTRODUCTION TO LAW fi)

f!
\i
LABOR LAW AND SOCIAL LEGISLATION 1109

.:j
(c) Ali other lands owned by the government devoted to or
BASIC MONTHLY PENSION suitable for agriculture; and
Old age pension shall be paid to a member who: (d) Ali private lands devoted to or suitable for agriculturo
(l) has at least fifteen years of service; regardless of the agricultural products raised or that can be raised
thereon.
(2) is at least sixty (60) years of age; and
SEC. 5. Schedule of lmplementation. - The distribution
(3) is separated from the service. (Sec. 11, Revised Govern- of alilands covered by this Act shall be implemented immediately
ment Service Insurance Act) and completed within ten (10) years from the effectivity thereof.

DISABILITY SEC. 6. Retention Limits. - Except as otherwise provided

in this Act, no person may own or retain, directly or indirectly, any
(l) Permanent total disability (PTD) public or private agricultural land, the size of which shall vary
(2) Permanent partial disability (PPD) according to factors governing a viable family-size farro, such as
commodity produced, terrain, infrastructure, and soil fertility as
(3) Permanent total disability (TTD) determined by the Presidential Agrarian Reform Council (PARC)
created hereunder, but in case shall retention by the landownor
OTHER BENEFITS exceed five (5) hectares. Three (3) hectares may be awarded to each
The other benefits are the foliowing: child of the landowner, subject to the following qualifications: (l)
that he is a t least fifteen (15) years of age; and (2) that he is actunlly
(l) Funeral Benefits tilling the land or directly mimaging the farro; Provided, Thnt
(2) Sickness Benefits landowners whose lands have been covered by Presidential Decron
No. 27 shall be allowed to keep the area originally retained by thc1m
(3) Life Insurance Benefits thereunder; Provided, further, That originai homestead granteoA
(4) Loan Privileges or their direct compulsory heirs who stili own the originai
homestead at the time of the approvai of this Act shall retain th<l
(3} COMPREHENSIVE AGRARIAN REFORM LAW same areas as long they continue to cultivate said homestead.
The right to choose the area to be retained, which shall bo
SEC. 4. Scope. - The Comprehensive Agrarian Reform Law
compact or contiguous, shall pertain to the landowner; Provided,
of 1988 shall cover, regardless of tenurial arrangement and
commodity produced, ali public and private agricultural lands, as
however, That in case the area selected for retention by the
landowner is tenanted, the tenant shall have the option to choose
provided in Proclamation No. 131 and Executive Order No. 229,
whether to remain therein or to be a beneficiary in the same or
including other lands of the public domain for agriculture.
another agriculturalland with similar or comparable features. In
More specifically, the following lands are covered by the case the tenant chooses to remain in the retained area, he shall be
Comprehensive Agrarian Reform Program: considered a leaseholder and shalllose his right to be a beneficiary
under this Act. In case the tenant chooses to be a beneficiary in
(a) Ali alienable and disposable lands of the public domain
another agriculturalland, he loses his right as a leaseholder to the
devoted to or suitable for agriculture. No reclassification of forest
or minerai lands to agricultural lands shali be undertaken after land retained by the landowner. The tenant must exercise this
the approvai of this Act until Congress, taking into account option with a period of one (l) year from the time the landownor
ecological, developmental and equity considerations, shall have manifesta his choice of the area for retention.
determined by law, the specific limits of the public domain; In ali cases, the security of tenure to the farmers or farm·
workers on the land prior to the approvai of this Act shall bo
(b) Ali lands of the public domain in excess of the specific
respected.
limits as determined by Congress in the preceding paragraphs; .
310 INTRODUCTION TO LAW
t
~~
'[
'fi
Upon the effectivity of this Act, any sale, disposition, lease,
management contract or transfer of possession of private lands
executed by the originallandowner in violation of the Act shall be
null and void; Provided, however, That those executed prior to this
Act shall be valid only when registered with the Register of Deeds
within a period of three (3) months after the effectivity of this Act.
Thereafter, ali Registers of Deeds shall inform the Department of
Agrarian Reform (DAR) within thirty (30) days of transaction
involving agriculturallands in excess of five (5) hectares.
SEC. 7. Priorities.- The Department of Agrarian Reform
(DAR) in coordination with the Presidential Agrarian Reform
Council (PARC), shall pian and program the acquisition and
distribution of ali agriculturallands through a period of ten (10)
years from the effectivity of this Act. Lands shall be acquired and
distributed as follows:
Phase One: Rice and corn lands under Presidential Decree
No. 27; ali idle or abandoned lands; ali private lands voluntarily
offered by the owners for agrarian reform; ali lands foreclosed by
government financial institutions; ali lands acquired by the
Presidential Commission on Good Government (PCGG ); and ali
other lands owned by the government devoted to or suitable for
agriculture, which shali be acquired and distributed immediately
upon the effectivity of this Act, with the implementation to be
completed within a period of not more than four (4) years.
Phase Two: Ali alienable and disposable public agricultural
lands; all arable public agriculturallands under agro-forest, pasture
and agricultural leases already cultivated and planted to crops in
accordance with Section 6, Artide XIII of the Constitution; ali public
agriculturallands which are to be opened for new development and
resettlement; and ali private agricultural lands in excess of fifty
(50) hectares; insofar as the excess hectares is concerned, to
implement principally the rights of farmers and regular
farmworkers, who are landless, to own directly or coliectively the
lands they till, which shall be distributed immediately upon the
effectivity of the Act, with the implementation to be completed
within a period of not more than four (4) years.
Phase Three: Ali other private agriculturallands commencing
with large landholdings and proceeding to medium and small
landholdings under the foliowing schedule:
(a) Landholdings above twenty-four (24) hectares up to fifty
LABOR LAW AND SOCIAL LEGISLATION 311
(50) hectares, to begin on the fourth (4th) year from the effectivity
of this Act and to be completed within three (3) years; and
(b) Landholdings from the retention limit up to twenty-four
(24) hectares, to begin on the sixth (6th) year from the effectivity
of this Act and to be completed within four (4) years; to implement
principally the right of farmers and regular farmworkers who are
landless, to own directly or collectively the lands they till.
The schedule of acquisition and redistribution of ali agricul-
tural lands covered by this program shall be made in accordance
with the above order of priority, which shall be provided in the
implementing rules to be prepared by the Presidential Agrarian
Reform Council (PARC), taking into consideration the following:
the need to distribute lands to the fillers at the earliest practicable
time; the need to enhance agricultural productivity; and the
availability of funds and resources to implement and support the
program.
In any case, the PARC, upon recommendation by the Provincia}
Agrarian Reform Coordinating Committee (PARCCOM), may
declare certain provinces or regions as priority land reform areas,
in which case the acquisition and distribution of private agricultural
lands therein may be implemented ahead of the above schedules.
In effecting the transfer within these guidelines, priority must
be given to lands that are tenanted.
The PARC shali establish guidelines to implement the above
priorities and distribution scheme, including the determination of
who are qualified beneficiaries; Provided, That an owner-tiller may
be a beneficiary of the land he does not own but is actually
cultivating to the extent of the difference between the area of the
land he owns and the award ceiling of three (3) hectares.
ARE LANDS LEASED/HELD OR POSSESSED
BY MULTINATIONAL CORPORATIONS OR
ASSOCIATIONS COVERED?
Yes. They shall be programmed for acquisition and distribution
immediately upon the effectivity of R.A. No. 6657, with the
implementation to be completed within three (3) years. (Section 8,
R.A. No. 6657)