CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)

PERSONS AND FAMILY RELATIONS -laws that are merely directory in nature; it
provides rules of conduct that are not
PRELIMINARY TITLE mandatory.

CHAPTER 1 c) As to nature
EFFECT AND APPLICATION OF LAWS i. SUBSTANTIVE
Art 1. This Act shall be known as the “Civil Code of the -law that create, modify, or define rights
Philippines.” and obligations of imposes penalties,
1. Brief History of RA 386, “ An Act to Ordain and damages, and other substantive provisions
Institute the Civil Code of the Philippines
ii. PROCEDURAL
(1) Main draft was prepared by the ROXAS CODE -laws that establish rules and procedure for
COMMISSION, created by Pres Manuel Roxas, the enforcement of rights and obligations.
i. with DR. JORGE BOCOBO as chairman,
and iii. CURATIVE
ii. Members were; -laws that cure defects of an existing or
1. JUDGE GUILLERMO GUEVARRA prior law.
2. DEAN PEDRO YLAHAN
3. FRANCISCO CAPISTRANO 6. APPLICABLE LAWS
4. ARTURO TOLENTINO (had to a) CONSTITUTION
resign due to his election as b) NEW CIVIL CODE OF THE PHILIPPINES
congressman. And was replaced i. NCC applies suppletory to matters that
by DR. CARMELINO ALVENDIA) are governed by the Code of
(2) 1947 Code of Commission started working on Commerce and Special Laws;
May 8, 1947 and ended on Dec 15, 1947 ii. FAMILY CODE of the PH repealed the
(3) On JANUARY 26, 1949, the Senate and HoR provisions of the NCC on Marriage,
passed RA 386. Status of Children. Parental authority,
and other Similar Matters.
2. LAW c) SPECIAL LAWS
- In its GENERAL AND ABSTRACT sense, it is the 1. Child and Youth Welfare Code
science of moral laws founded on the rational nature (P.D. No 603)
of man that governs his free activity for the realization 2. Women in development and
of the individual and social ends of life under an Nation Building Act (R.A No.
aspect of mutual conditional dependence. 7192)
In its SPECIFIC AND CONCRETE SENSE, it is a rule 3. Domestic Adoption Act of 1998
of conduct which is of common observance and (RA No 8552)
benefit, just and obligatory, promulgated by 4. Inter-Country Adoption Act of
legitimate authority. 1995 (RA No. 8043)
d) TREATIES
3. CIVIL LAW e) ADMINISTRATIVE RULES
It is the mass of precepts that determine or i. Legislative rules
regulate relations that exists between members of the - are in the nature of subordinate legislation
society for the protection of private interests. and designed to implement a primary
(QUISABA VS. STA INES-MELALE VENEER AND PLYWOOD) legislation by providing the details thereof.

4. COMMON LAW ii. Interpretative rules

- It is the collection of legal interpretations made - are intended to interpret, clarify or
by judges. explain existing statutory regulations under
which the administrative body operates.
a) LAW MERCHANT
-it is the body of commercial laws governing Iii. Contingent rules
merchants that developed over a long period of time - are those issued by an administrative
among merchants in Europe. authority based on the existence of certain facts
b) STATUTORY LAW PREVAILS or things upon which the enforcement of the law
-Common law doctrines are not binding upon our depends.
courts, except when they are founded on sound
principles applicable to local conditions, and are not in F) EQUITY
conflict with existing law. -justice based on natural law.
- EQUITY FOLLOWS THE LAW, - it is to be applied
5. KINDS OF LAW only in the absence of, and never against statutory
a) As to Relationships governed law o judicial rules of procedure.
i. PUBLIC LAW
-governs the relationship between the State G) GENERAL PRINCIPLES OF LAW
and its citizens and inhabitants. H) SOFT LAW
e.g. Constitutional Law, Public International Law, -rules that are not legally binding but which in
Administrative Law and Criminal Law practice will normally be adhered to by those who
subscribe to them.
ARTICLE 2
ii. PRIVATE LAW
EFFECTIVITY OF LAWS
-governs the relationship between citizens,
Art 2. Laws shall take effect after fifteen days
inhabitants and other persons who may be
following the completion of their publication either in
within its territory.
the Official Gazette or in a newspaper of general
E. g. Civil Law and Commercial Law
circulation in the Philippines, unless it is otherwise
provided.
b) As to effect
i. MANDATORY
1. EFFECTIVITY OF THE CIVIL CODE
- the law imposes something to be done
(positive) or something that cannot be done -took effect on August 30, 1950
(prohibitory or negative)
2. EFFECTIVITY OF LAWS
a) Shorter/longer period than the 15-day period
ii. PERMISSIVE
-the period provided provided in the statute
shall prevail
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b) Takes effect immediately
-it shall take effect immediately after publication
with the 15 day period being dispensed with.
c) No provision as to its effectivity
-it shall take effect 15 days following its
publication
3. PUBLICATION REQUIREMENT
a) ENTIRE LAW should be published.
Publication of mere title or any part of the
law or a summary thereof is not sufficient. (
Tanada v. Tuvera)
b) MUST BE PUBLISHED
i. Presidential Decrees;
ii. Laws which refer to all statutes,
including local and private laws;
iii. Administrative rules and regulations,
the purpose of which is to
enforce/implement existing laws
pursuant to a valid delegation;
iv. Charter of a city;
v. Circulars issued by the Monetary
Board, the purpose of which is not
merely to interpret but to fill in the
details of the Central Bank Act;
vi. Circulars and regulations which
prescribe a penalty for their violation
(People v. Que Po Lay);
vii. Executive orders
c) NEED NOT BE PUBLISHED
i. Supreme Court Decisions;
ii. Interpretative regulations and those
merely internal in nature NEED NOT BE
PUBLISHED;
iii. Letters of Instructions issued by
administrative superiors concerning
rules or guidelines to be followed by
subordinates NEED NOT BE PUBLISHED
iv. Those internal in nature, regulating
only the personnel of the
administrative agency
4. NEWSPAPER OF GENERAL CIRCULATION
To be a newspaper of general circulation:
a) It must be published for the dissemination of local
news and general information;
b) That it has a bona fide subscription list of paying
subscribers;
c) That it is published at regular intervals.
CASES
1. TANADA V. TUVERA (Publication Requirement)
-The clause “unless it is otherwise provided” refers to the
date of effectivity and not to the requirement of publication
itself, which cannot in any event be omitted. This clause
does not mean that the legislature may make the law
effective immediately upon approval, or on any other date,
without its previous publication.
Publication is indispensable in every case, but the
legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended.
2. DE ROY VS CA (Judicial Decisions need not be
published)
There is no law requiring the publication of SC decisions in
the official gazette before they can be binding and as
condition to their becoming effective. It is the bounded duty
of counsel as lawyer in active law practice to keep abreast of
decisions of the Supreme Court particularly where issues
have been clarified, consistently reiterated, and published in
the advance reports if Supreme Court decisions. And in such
publications as the SCRA and law journals.
3. PEOPLE VS QUE PO LAY (Bank Circular)
-Circulars and regulations, especially like Circular No. 20
of the Central Bank which prescribes a penalty for its
violation, should be published before becoming effective.
Before the public may be bound by its contents, especially
its penal provisions, a law, regulation or circular must be
published and the people officially and specifically informed
of said contents and its penalties.
Engr. Ariel Mark Pilotin
ARTICLE 3
IGNORANCE OFTHE LAW
Art 3. Ignorance of the law excuses no one from
compliance therewith.
1. IGNORANTIA LEGIS NON EXCUSAT
- “Ignorance of the law excuses no one.”
-A mistake of law cannot be utilized as a lawful
justification, because everyone is presumed to
know the law and its consequences.
-It is founded not only on expediency and policy
but on NECESSITY.
-Applies only to MANDATORY AND PROHIBITORY
LAWS.
-Also Applies to Supreme Court Decisions.
2. CONSTRUCTIVE NOTICE
The public is always put on a constructive notice
of the law’s existence and effectivity even if the
person has no actual knowledge of such law. To allow
a party to set up as a valid defense the fact that he
has no actual knowledge of a law which he has
violated is to foment disorder in society. ( Consunji vs
CA)
3. EXCEPTIONS
a) Mistake on doubtful or difficult
interpretaton of law may be the basis for
claiming good faith. (Millarosa vs Carmel
Dev) (Art 526)
b) Mistake or ignorance of fact may be the
basis for claiming absence of intent; it may
also vitiate consent in contracts.
c) Foreign laws not included (Garcia vs
Recio)
d) Art 1334, Mutual error on Legal effect of
agreement—may vitiate consent;
e) Art 2155, Mistake in payment gives rise to
right to return of erroneous payment.
CASES
1. GARCIA VS RECIO (Foreign laws)
Under Art 3 CC, ignorance of the law excuses no one
from compliance therewith. However, the provisions only
applies to PH law, as foreign laws, including divorce, do
not prove themselves in the PHs. Since the divorce was a
defense raised by respondent, the burden of proving the
pertinent Australian law validating it falls squarely upon
him. It is well-settled in our jurisdiction that our courts
cannot take judicial notice of foreign laws. Like any other
facts, they must be alleged and proved. Australian marital
laws are not among those matters that judges are supposed
to know by reason of their judicial function.
A divorce decree must be presented and proven as fact
based on the rules of evidence. Respondent, in merely
presenting the Australian divorce decree is insufficient
because appearance of its authenticity is not sufficient.
The rules of evidence must still be complied. In this case,
the petitioner’s lack of objection to the admissibility of
the decree resulted in such being admitted in evidence.
ARTICLE 4
NON-RETROACTIVITY OF LAWS
Art 4.Laws shall have no retroactive effect, unless the
contrary is provided.
1. GR: LAWS SHALL HAVE NO RETROACTIVE EFFECT
EXCEPTIONS:[PIP-CLETP]
(A) When the contrary is provided by law;
-EXCEPTION TO THE EXCEPTION
-Even if the law provides for retroactivity, it
is invalid if it is either:
(i) An Ex post facto law, or
(ii) A Law that impairs the obligation of
contracts;
(iii) It does not prejudice or impair vested
or acquired rights in accordance with the Civil
Code or other laws.
(B) Interpretative statutes;
(C) Procedural/remedial laws;
“If a law takes away rights or creates rights,
then the law is NOT procedural. It is procedural if it
merely operates as a means of implementing an
existing right. (SEC v. Laigo)
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(D) Curative or Remedial statutes- statutes that
were enacted to cure defects, abridge superfluities,
and curb certain evils;
(E) Laws creating new rights;
(F) Emergency laws; and
(G) Tax laws -when expressly declared or is
clearly the legislative intent; and
(H) When the law is penal in character and
favorable to the accused.
ARTICLE 5
MANDATORY OR PROHIBITORY LAWS
Art 5. Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself
authorizes their validity.
1. MANDATORY LAW
-laws that demand for something to be done
-the omission of which renders the proceeding or
acts to which it relates generally ILLEGAL OR VOID.
(a) Prescriptive periods
(b) In the Family Code, in order to impugn the
legitimacy of a child, father must file a case within
one year from the knowledge of the birth of the child
or its recording in the civil register, if he should live
within the same municipality
2. PROHIBITORY LAW
-those which contain positive prohibitions and
are couched in the negative terms importing that the
act required shall not be done otherwise than
designated.
(a) In the FC, No decree of legal separation shall
be based upon a stipulation of facts or a confession of
judgment.
3. GR: ACTS CONTRARY TO MANDATORY OR
PROHIBITORY LAWS ARE VOID
EXCEPTION [PAVE]
(i) If the law EXPRESSLY AUTHORIZES the validity
of acts committed in violation of a mandatory or
prohibitory provision of a statute, such act shall be
considered valid and enforceable.
(ii) The laws makes the act valid but PUNISHES
the violator;
(iii) Law makes the act only VOIDABLE; and
(iv) Law declares the nullity of the act but
recognizes its EFFECTS as legally existing.
ARTICLE 6
WAIVER
Art 6. Rights may be waived, unless the waiver is contrary to
law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.
1. WAIVER
-it is the intentional relinquishment of a known
right.
a) NOT PRESUMED, but must be clearly and
convincingly shown, either by express
stipulation or acts admitting no other
reasonable explanation. (Arrieta v. National
Rice and Corn Corporation);
b) EXISTS AT THE TIME THE WAIVER IS MADE, in
order to be validly waived;
c) BY DULY CAPACITATED PERSONS actually
possessing the right to make the waiver
2. ESSENTIAL REQUISITES FOR VALID WAIVER
a) Existence of a right;
b) Knowledge of the existence of a right;
c) Intention to relinquish the right
REQUISITES OF A VALID WAIVER (PARAS)
i. Full CAPACITY to make the waiver;
ii. Waiver must be UNEQUIVOCAL;
iii. Right must EXIST at the time of the waiver;
iv. It must not be CONTRARY TO LAW, PUBLIC
POLICY, MORALS OR GOOD CUSTOMS;
v. It must not be PREJUDICIAL to a third person
with a right recognized by law; and
Engr. Ariel Mark Pilotin
vi. When FORMALITIES are required, the same
must be complied with.
3. EXCEPTIONS: WHEN RIGHTS CANNOT BE WAIVED
-waivers cannot be made
(a) When the waiver is PREJUDICIAL to a 3 rd
person with a right recognized by law;
(b) Alleged rights, which really do not exist yet;
(c) Those the RENUNCIATION of which would
infringe upon public policy;
(d) Natural rights, such as the right to life.
(e) if they are contrary to law, public order,
public policy, morals or good customs, or
(f) prejudicial to a third person with a right
recognized by law.
“Preferential rights of tenants under CA No. 539
to purchase a public land cannot be validly waived
because it would be against public policy. “( Gongon
v. CA)
“The acceptance of benefits such as separation
pay and terminal leave benefits would not amount to
estoppel or waiver of right of employee to contest his
illegal dismissal.” (San Miguel v. Cruz)
4. VESTED RIGHT
-one whose existence, effectivity and extent do
not depend upon events foreign to the will of the
holder, or to the exercise of which no obstacle exists,
and which is immediate and perfect in itself and not
dependent upon a contingency.
- GR: One may not be deprived of his vested right
EXC: he may lose it if there is due process and
such deprivation is founded in law and jurisprudence
CASES
1. DM CONSUNJI v. COURT OF APPEALS [WAIVER BY
ELECTION]
When a party having knowledge of the facts makes
an election between inconsistent remedies, the election is
final and bars any action, suit, or proceeding inconsistent
with the elected remedy, in the absence of fraud by the
other party. The first act of election acts as a bar.
Equitable in nature, the doctrine of election of
remedies is designed to mitigate possible unfairness to both
parties. It rests on the moral premise that it is fair to hold
people responsible for their choices. The purpose of the
doctrine is not to prevent any recourse to any remedy, but
to prevent a double redress for a single wrong. The choice
of a party between inconsistent remedies results in a
waiver by election.
Waiver is the intentional relinquishment of
a known right. 
[It] is an act of understanding that presupposes that a
party has knowledge of its rights, but chooses not to assert
them. It must be generally shown by the party claiming a
waiver that the person against whom the waiver is asserted
had at the time knowledge, actual or constructive, of the
existence of the party's rights or of all material facts upon
which they depended. Where one lacks knowledge of a right,
there is no basis upon which waiver of it can rest. Ignorance
of a material fact negates waiver, and waiver cannot be
established by a consent given under a mistake or
misapprehension of fact.
A person makes a knowing and intelligent waiver when
that person knows that a right exists and has adequate
knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the
exercise of the right waived, with an awareness of its
consequences. That a waiver is made knowingly and
intelligently must be illustrated on the record or by the
evidence.
It bears stressing that what negates waiver is lack of
knowledge or a mistake of fact. In this case, the "fact" that
served as a basis for nullifying the waiver is the negligence of
petitioner's employees, of which private respondent
purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability.
In Floresca, it was the negligence of the mining corporation
and its violation of government rules and regulations.
Negligence, or violation of government rules and regulations,
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for that matter, however, is not a fact, but a conclusion of
law, over which only the courts have the final say. Such a
conclusion binds no one until the courts have decreed so. It
appears, therefore, that the principle that ignorance or
mistake of fact nullifies a waiver has been misapplied in
Floresca and in the case at bar.
In any event, there is no proof that private respondent
knew that her husband died in the elevator crash when on
November 15, 1990 she accomplished her application for
benefits from the ECC. The police investigation report is
dated November 25, 1990, 10 days after the accomplishment
of the form. Petitioner filed the application in her behalf on
November 27, 1990.
There is also no showing that private respondent knew
of the remedies available to her when the claim before the
ECC was filed. On the contrary, private respondent testified
that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the
Civil Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying or
interpreting the laws or the Constitution form part of the
Philippine legal system (Article 8, Civil Code), private
respondent cannot claim ignorance of this Court's ruling in
Floresca allowing a choice of remedies.  provides otherwise
The argument has no merit. The application of Article
3 is limited to mandatory and prohibitory laws.  This may be
deduced from the language of the provision, which,
notwithstanding a person's ignorance, does not excuse his or
her compliance with the laws. The rule in Floresca allowing
private respondent a choice of remedies is neither
mandatory nor prohibitory. Accordingly, her ignorance
thereof cannot be held against her.
2. CUI V. ARELLANO [WAIVER OF RIGHT TO
TRANSFER]
The stipulation in a contract, between a student and
the school, that the student's scholarship is good only if he
continues in the same school, and that he waives his right to
transfer to another school without refunding the equivalent
of his scholarship in cash, is contrary to public policy and,
hence, null and void, because scholarships are awarded in
recognition of merit and to help gifted students in whom
society has an established interest or a first lien, and not to
keep outstanding students in school to bolster its prestige
and increase its business potential. 
ARTICLE 7
REPEAL
Art 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse,
or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws or
the Constitution.
1. REPEAL OF LAW
-Is the legislative act of abrogating through a
subsequent law the effects of a previous statute or
portions thereof.
2. KINDS OF REPEAL
a) IMPLIED REPEAL
-takes place when a new law contains provisions
contrary to or inconsistent with those of a former
without expressly repealing them.
- Repeals and amendments by implications are not
favored.
REQUISITES FOR AN IMPLIED REPEAL
(i) The laws cover the same subject matter; and
(ii) The latter is repugnant to the other.
b) EXPRESS REPEAL
-is a repeal which is literally declared by a new law,
either :
-in specific terms, as where particular laws
and provisions are named and identified and
declared to be repealed,
Engr. Ariel Mark Pilotin
-or in general terms, as where a provision in
a new law declares all laws and parts of laws
inconsistent therewith to be repealed.
3. RULE IN CASE OF CONFLICT BETWEEN A GENERAL
LAW AND A SPECIAL LAW
(a) If the general law was enacted PRIOR to the
special law, the latter is considered the exception to
the general law;
(b)If the general law was enacted AFTER the
special law, the special law remains UNLESS:
i. there is an express declaration to the contrary;
or
ii. There is a clear, necessary, and irreconcilable
conflict; or
iii. the subsequent general law covers the whole
subject and is clearly intended to replace the special
law on the matter.
4. EFFECTS OF REPEALING LAW IS ITSELF REPEALED
(a) When a law which expressly repeals a prior
law is itself repealed, the law first repealed shall not
be thereby revived, UNLESS so provided.
(b) When a law which impliedly repeals a prior
law is itself repealed, the prior law shall thereby be
revived UNLESS the language of the repealing statute
5. UNCONSTITTUIONAL STATUES
-No ordinary statute can override a constitutional
provision.
-The constitutionality of a law or executive order
may not be collaterally attacked. They enjoy the
presumption of validity unless declared nill and void
by a comptetent court.
6. OPERATIVE FACT DOCTRINE
-acts done pursuant to a law which was
subsequently declared unconstitutional remain valid,
but not when the acts are done after the declaration
of unconstitutionality.
Q: An act which provides that “ All laws and parts
thereof inconsistent with the provisions of this Act are
hereby repealed or modified accordingly” an express
repealing clause?
A: No. Because it fails to identify or designate the Act
or Acts that are intended to be repealed.
CASES
1. NAVARRO VS JUDGE DOMAGTOY
There is nothing ambiguous or difficult to comprehend
in this provision. In fact, the law is clear and simple. Even
if the spouse present has a well-founded belief that the
absent spouse was already dead, a summary proceeding for
the declaration of presumptive death is necessary in order
to contract a subsequent marriage, a mandatory
requirement which has been precisely incorporated into
the Family Code to discourage subsequent marriages where
it is not proven that the previous marriage has been
dissolved or a missing spouse is factually or presumptively
dead, in accordance with pertinent provisions of law. In
the case at bar, Gaspar Tagadan did not institute a
summary proceeding for the declaration of his first wife's
presumptive death. Absent this judicial declaration, he
remains married to Ida Peñaranda. Whether wittingly or
unwittingly, it was manifest error on the part of
respondent judge to have accepted the joint affidavit
submitted by the groom. Such neglect or ignorance of the
law has resulted in a bigamous, and therefore void,
marriage. Under Article 35 of the Family Code, "The
following marriage shall be void from the beginning: (4)
Those bigamous . . . marriages not falling under Article
41."||| 
2. BESO VS DAGUNAN
In this case, there is no pretense that either
complainant Beso or her fiance Yman was at the point of
death or in a remote place. Neither was there a sworn
written request made by the contracting parties to
respondent Judge that the marriage be solemnized outside
his chambers or at a place other than his sala. What, in
fact, appears on record is that respondent Judge was
prompted more by urgency to solemnize the marriage of
Beso and Yman because complainant was "[a]n overseas
worker, who, respondent realized deserved more than
ordinary official attention under present Government
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policy." Respondent Judge further avers that in solemnizing
the marriage in question, "[h]e believed in good faith that
by doing so he was leaning on the side of liberality of the
law so that it may not be too expensive and complicated
for citizens to get married."  different view is adopted, the new doctrine should be
ARTICLE 8
JUDICIAL CONSTRUCTION AND INTERPRETATION
Art 8. Judicial decisions applying or interpreting the laws or
the Constitution shall form part of the legal system of the
Philippines.
1. LEGIS INTERPETATIO LEGIS VIM OBTINET
-the interpretation placed upon the written law
by a competent court has the force of law.
2. DOCTRINE OF STARE DECISIS
-enjoins adherence to judicial precedents and
based on the principle that once a question of law has
been examined and decided, it should be deemed
settled and closed to further argument.
3. COURT OF APPEALS DECISION
-only persuasive authority, HOWEVER, they are
also precedents that should be applied by lower courts
if there is no Supreme Cout Decision.
4. DECISIONS OF FOREIGN COURTS
-Not automatically binding and enforceable in the
Philippines.
-Any party may avail of the proper remedy to
enforce a foreign judgment in local courts under the
Rules of Civil Procedure particularly Rule 39, Sec 48of
the Rules of Court
(a) In the recognition of foreign judgments,
Philippine courts are incompetent to substitute their
judgment on how a case was decided under foreign
law.
(b) In an action for recognition of foreign
judgments, PH courts will only determine
1. Whether the foreign judgment is
inconsistent with an overriding public policy
in the Philippines; and
2. Whether any alleging party is able to
prove an extrinsic ground to repel the foreign
judgment, I.e want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact.
CASES
1. PEOPLE VS LICERA
PRINCIPLE OF STARE DECISIS. — Article 8 of the Civil Code
of the Philippines decrees that judicial decisions applying
or interpreting the laws of the Constitution form part of
this jurisdiction's legal system. These decisions, although in
themselves are not laws, constitute evidence of what the
laws mean. The application or interpretation merely
establishes the contemporaneous legislative intent that the
construed law purports to carry into effect.||| 
2. PEOPLE VS JABINAL
It will be noted that when appellant was appointed
Secret Agent by the Provincial Government in 1962, and
Confidential Agent by the Provincial Commander in 1964,
the prevailing doctrine on the matter was that laid down
by Us in People v. Macarandang (1959) and People v.
Lucero (1958). Our decision in People v. Mapa reversing the
aforesaid doctrine came only in 1967. The sole question in
this appeal is: Should appellant be acquitted on the basis
of Our rulings in Macarandang and Lucero, or should his
conviction stand in view of the complete reversal of
the Macarandang and Lucero doctrine in Mapa? The
Solicitor General is of the first view, and he accordingly
recommends reversal of the appealed judgment.
Decisions of this Court, although in themselves not
laws, are nevertheless evidence of what the laws mean,
and this is the reason why under Article 8 of the New Civil
Code, "Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal
system . . ." The interpretation upon a law by this Court
constitutes, in a way, a part of the law as of the date that
law was originally passed, since this Court's construction
merely establishes the contemporaneous legislative intent
that the law thus construed intends to effectuate. The
settled rule supported by numerous authorities is a
restatement of the legal maxim "legis interpretatio legis
vim obtinet" — the interpretation placed upon the written
law by a competent court has the force of law. The
doctrine laid down in Lucero and Macarandang was part of
the jurisprudence, hence, of the law, of the land, at the
Engr. Ariel Mark Pilotin
time appellant was found by possession of the firearm in
question and when he was arraigned by the trial court. It is
true that the doctrine was overruled in the Mapa case in
1967, but when a doctrine of this Court is overruled and a
applied prospectively, and should not apply to parties who
had relied on the old doctrine and acted on the faith
thereof. This is especially true in the construction and
application of criminal laws, where it is necessary that the
punishability of an act be reasonably foreseen for the
guidance of society.
It follows, therefore, that considering that appellant
was conferred his appointments as Secret Agent and
Confidential Agent and authorized to possess a firearm
pursuant to the prevailing doctrine enunciated
in Macarandang and Lucero, under which no criminal
liability would attach to his possession of said firearm in
spite of the absence of a license and permit therefor,
appellant must be absolved. Certainly, appellant may not
be punished for an act which at the time it was done was
held not to be punishable.
ARTICLE 9
DUTY OF JUDGES TO DECIDE
Art 9. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws.
1. JUDICIAL LEGISLATION
-While there is a concept that the courts cannot
engage in judicial legislation, the courts must “Do and
must legislate” to fill in the gaps in the law.
2. LEGAL EFFECTS OF JUDICIAL LEGISLATION
(a) No publication required (De Roy vs CA)
(b) Conclusive and binding between parties after
the lapse of appeal period.
(c) Bind all future cases with identical facts,
until reversed by the SC
3. NO RETROACTIVE EFFECT
When a doctrine of the Supreme Court is
overruled and a different view is adopted, the new
doctrine should be applied prospectively and should
not prejudice parties who relied on the old doctrine
4. HOW JUDICIAL DECISIONS MAY BE ABROGATED
(a) By contrary ruling of the Supreme Court
itself; and
(b) By corrective legislative acts of Congress,
although said laws cannot adversely affect those
favored prior to Supreme Court decisions.
CASES
1. CHU JAN VS BERNAS
Ignorance of the special law applicable to a case does not
justify the court in terminating the proceeding by
dismissing it without a decision.||| 
2. PEOPLE VS VENERACION
Obedience to the rule of law forms the bedrock of our
system of justice. If judges, under the guise of religious or
political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to
exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes
the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided
by the Rule of Law, and ought "to protect and enforce it
without fear or favor," resist encroachments by
governments, political parties,  or even the interference of
their own personal beliefs.
In the case at bench, respondent judge, after weighing
the evidence of the prosecution and the defendant at trial
found the accused guilty beyond reasonable doubt of the
crime of Rape with Homicide. Since the law in force at the
time of the commission of the crime for which respondent
judge found the accused guilty was Republic Act No. 7659,
he was bound by its provisions.
Clearly, under the law, the penalty imposable for
the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes
cases of ordinary rape with the penalty of Reclusion
Perpetua, it allows judges the discretion — depending on
the existence of circumstances modifying the offense
committed — to impose the penalty of either Reclusion
Perpetua only in the three instances mentioned therein.
Rape with homicide is not one of these three instances.
The law plainly and unequivocably provides that "[w]hen by
reason or on the occasion of rape, a homicide is
committed, the penalty shall be death." The provision
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
leaves no room for the exercise of discretion on the part of
the trial judge to impose a penalty under the
circumstances described, other than a sentence of death.
ARTICLE 10
DOUBTFUL STATUTES
Art 10. In case of doubt in the interpretation or application foreign marriage two things must be proven, namely:
of laws, it is presumed that the lawmaking body intended
right and justice to prevail.
CASE
1. PEOPLE VS PURISIMA
When ambiguity exists, it becomes a judicial task to
construe and interpret the true meaning and scope of
the measure, guided by the basic principle that penal
statutes are to be construed and applied liberally in
favor of the accused and strictly against the state.
In the construction or interpretation of the
legislative measure, the primary rule is to search for
and determine the intent and spirit of the law.
ARTICLE 11 &12
CUSTOMS
Art 11. Customs which are contrary to law, public order or
public policy shall not be countenanced.
Art 12. A custom must be proved as a fact, according to the
rules of evidence.
1. CUSTOMS
- the rule of conduct formed by repetition of
acts, uniformly observed as a social rule, legally
binding and obligatory.
-Even if proven, A custom cannot prevail over a
statutory rule or even a legal rule enunciated by the
Supreme Court.
2. GR: CUSTOMS MUST BE PROVED AS A FACT
-Courts take no judicial notice of custom.
EXCEPTION: If there is already a decision rendered by
the same court recognizing the custom, it becomes an
official act of the judicial department which court may
take judicial notice.
3. REQUISITES TO MAKE A CUSTOM AN OBLIGATORY
a) Plurality or repetition of acts;
b) Practiced by the great mass of the social
group;
c) Continued practice for a long period of
time;
d) The community accepts it as a proper way
of acting, such that it is considered as
obligatory upon all.
e) Uniformity, or identity of acts or various
solutions to the juridical question; and
f) The practice must NOT be contrary to law,
morals, or public order
4. JUDICIAL CUSTOM VS SOCIAL CUSTOM
Judicial Custom Social Custom
-can supplement -cannot supplement
statutory law or applied statutory law
in the absence of such
statute.
CASES
1. MARTINEZ VS VAN BUSKIRK
It is a matter of common knowledge as well as proof
that it is the universal practice of merchants to deliver
merchandise of the kind of that being delivered at the
time of the injury, in the manner in which that was then
being delivered; and that it is the universal practice to
leave the horses in the manner in which they were left at
the time of the accident.
This is the custom in all cities. The act of defendant’s
driver in leaving the horses in the manner proved was not
unreasonable or imprudent. The acts, the performance of
which has not proved destructive or injurious and which
have, therefore, been acquiesced in by society for so long
a time that they have ripened into custom, cannot be held
to be themselves unreasonable or imprudent.
2. YAO KEE VS SY-GONZALES
Custom is defined as a rule of conduct formed by
repetition of acts, uniformly observed as a social rule,
Engr. Ariel Mark Pilotin
legally binding and obligatory. The law requires that a
custom must be proved as a fact according to the rules of
evidence.
On this score, the Court had occasion to state that a
local custom as a source of right can not be considered by
a court of justice UNLESS such custom is properly
established by competent evidence like any other fact.
The same evidence, if not one of a higher degree, should
be required of a foreign custom. To establish a valid
(1) the existence of the foreign law as a question of fact;
and
(2) the alleged foreign marriage by convincing evidence.
ARTICLE 13
YEAR, MONTHS, DAYS, NIGHTS
ARTICLE 13. When the laws speak of years, months, days or
nights, it shall be understood that years are of three hundred
sixty-five days each; months, of thirty days; days, of twenty-
four hours; and nights from sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they respectively
have.
In computing a period, the first day shall be excluded,
and the last day included.
1. COMPUTATION OF PERIOD
Year 12 Calendar Months- Sec 31,
Administrative Code of 1987
Note: Art 13 provides that a year is 365
days. However, the Admin Code is
controlling; the Admin Code partially
impliedly repealed Art 13 of NCC.
(William Co v. New Prosperity Plastic
Products, June 30, 2014)
Sec 31 of Admin Code, “Year” shall be
understood to be 12 calendar months.
Month 30 days each month
Day 24 hours
Nights Sunset to sunrise
Month Actual number of days of the given
designated month.
by name
Calendar Sunday to Saturday
week
Week -count 7 days as indicated, not
necessarily Sunday to Saturday
In computing a period, the first day shall be
EXCLUDED, and the last day included.
EXCEPTION:
(i) Rule does NOT apply to the computation of
AGE, each year is counted based on birth anniversary.
3. POLICY IF THE LAST DAY IS A SUNDAY OR A LEGAL
HOLIDAY
(a) The last day will automatically be considered
the next working day, if the act to be performed
within the period is prescribed or allowed by:
i. the Rules of Court;
ii. an order of the court; or
iii. Any other applicable statute;
EXC: When the action is Record on Appeal
(b) If the act to be performed within the period
arises from a contractual relationship, the act will
become overdue despite the last day falls on a Sunday
or Holiday.
CASES
1. CIR VS PRIMETOWN
Art 13 of the CC provides that when the law speaks of a
year, it is understood to be equivalent to 365 days.
However, in 1987, EO 292 or the Administrative Code of
1987 was enacted. Sec 31, Chapter VIII, Book I thereof
provides:
“Sec 31. Legal Periods.—“Year” shall be understood to
be twelve calendar months; “month” of thirty days, unless
it refers to a specific calendar month in which case it shall
be computed according to the number of days the specific
month contains; “day”, to a day of twenty-four hours and;
“night” from sunrise to sunset.”
Both Article 13 of CC and Sec 31, Chapter VIII, Book I of
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
the Administrative Code of 1987 deal with the same
subject matter – the computation of legal periods. Under
the CC, a year is equivalent to 365 days whether it be a
regular year or a leap year.
Under the Administrative Code of 1987, however, a year
is composed of 12 calendar months. Needless to state,
under the Administrative Code of 1987, the number of days property is situated shall be the governing law over
is irrelevant. There obviously exists a manifest
incompatibility in the manner of computing legal periods
under the Civil Code and the Admin Code of 1987. For this applicable the national law of the decedent, in
reason, we hold that Sec 31, Chapt VIII, Book I of the
Admin Code of 1987, being the more recent law, governs
the computation of legal periods. Lex posteriori derogate
priori.
PROVISIONS ON CONFLICT OF LAW (ART 14-17)
ARTICLE 14
OBLIGATORY FORCE OF PENAL LAWS
Art 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in Philippine territory,
-subject to the principles of public international
law and
-to treaty stipulations.
1. GR: Citizens and foreigners are subject to all penal
laws and all other laws designed to maintain public
security and safety
EXC:
(a) When the PH Government has waived its
criminal jurisdiction over the foreigners based on the
Principles of International Law and Treaties;
(b) When foreigners are within the territory of
their embassies considered a foreign soil;
(c) Parliamentary Immunity and
(d) Art 2 of the Revised Penal Coded.
Art 2. Application of its provisions. -- Except as provided in
the treaties and laws of preferential application, the
provisions of this Code shall be enforced not within the PH
Archipelago, including its atmosphere, its interior waters
and maritime zone, but also outside of its jurisdiction,
against those who:
(1) Should commit an offense while on a PH Ship or
airship;
(2) Should forge or counterfeit any coin or currency
note of the PH Islands or obligations and securities issued by
the Government of the PH Islands;
(3) Should be liable for acts connected to with the
introduction into these islands of the obligations and
securities mentioned in the preceding number;
(4) While being public officers or employees, should
commit an offense in the exercise of their functions; or
(5) Should commit any of the crimes against national
security and the law of nations, defined in Title One of Book
Two of this Code.
ARTICLE 15
NATIONALITY RULE OR LEX NATIONALII
Art 15. Laws relating to family rights and duties, or
to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even
though living abroad.
1. NATIONALITY RULE
-regardless of where a citizen of the Philippines
might be, he or she will be governed by PH laws with
respect to his or her family rights and duties, or to his
or her status, condition and legal capacity.
2. RULE ON DIVORCE
Under Art 26 of FC, the ONLY absolute divorce
which the PH recognizes is one which is procured by
the ALIEN SPOUSE of the PH Citizen.
If the Filipino spouse procures the absolute
divorce abroad, his or her status is still married.
(Tenchavez vs Escano)
ARTICLE 16
LAWS GOVERNING PROPERTIES OR LEX REI SITAE
Art 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary
successions, both with respect to the order of
succession and to the amount of successional rights
and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of
the person whose succession is under consideration,
Engr. Ariel Mark Pilotin
whatever may be the nature of the property and
regardless of the country wherein said property may
be found.
1. LAW GOVERNING REAL PROPERTIES
GEN RULE: The law of the country where the real
such real property.
EXCEPTIONS: Art 16 par 2, and Art 1039 NCC render
intestate or testamentary succession, with regard to
the ff: [CIAO]
(a) The order of succession;
(b) The amount of successional rights;
(c) The intrinsic validity of the provisions of the
will; and
(d) The capacity to succeed.
2. LEX LOCI REI SITAE
– law of the place where the thing or subject
matter is situated; the title to realty or question of
real estate law can be affected only by the law of the
place where it is situated
3. RENVOI DOCTRINE “Refer Back”
- when our law provides that the law of another
country will govern and such law provides that our law
shall govern, our law will govern.
-Art 16 Par 2 provides that in intestate and
testamentary succession, the national law of the
person whose succession is in consideration shall
govern. However, the national law of a foreigner may
refer back the issue providing that the domicile of the
decedent shall govern.
Transmission Theory
-Where the foreign law refers the issue to a third
country, the third country’s law shall govern.
4. DOCTRINE OF PROCESUAL PRESUMPTION
-foreign law should be proved by the party who
alleged its existence and its provisions. If there is no
such proof, the foreign law shall be presumed to be
the same as the domestic law.
5. FORUM NON CONVENIENS
-PH Court or tribunal may assume jurisdiction
over the case if it chooses to do so, provided:
(a) That the PH court is one to which the parties
may conveniently resort to;
(b) That the PH court is in a position to make an
intelligent decision as to the law and the facts; and
(c) That the PH court has or is likely to have
power to enforce its decision.
DOCTRINES
1. MIRCIANO V. BRIMO (TURKISH)
Where a turkish citizen made out a last will and testament
providing that his property be disposed of pursuant to PH
laws, the SC ruled that such provision is illegal and void
because, pursuant to Art 16 of NCC, the national law should
govern and therefore Turkish laws and not PH laws should
apply.
2. BELLIS v. BELLIS
Where a foreigner executed a will in the PHs but, who, at
the time of his death, was both a national of the United
States and domiciled in the US, the provision in a foreigner’s
will to the effect that his properties shall be distributed in
accordance with PG law and not with his national law is
illegal and void.
Under the laws of Texas, there are no forced heirs or
legitimes. Since the intrinsic validity of the provision of the
will and the amount of successional rights are to be
determined under Texas law, the PH law on legitimes cannot
be apploed to the testacy of Amos Bellis.
3. PILAPIL VS IBAY-SOMERA
The law specifically provides that in prosecutions for
ADULTERY and CONCUBINAGE, the person who shall file the
complaint shall be the spouse. Corollary to such exclusive
grant of power to the offended spouse to institute that
action, it necessarily follows that such initiator must have
the status, capacity or legal representation to do so at the
time of the filing of the criminal action.
This is a familiar and express rule in civil actions; in fact,
lack of legal capacity to sue, as a ground for a motion to
dismiss in civil cases, is determined as of the filing of the
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
complaint or petition. take cognizance of the issue and apply the law of the
After the divorce has been decreed, the innocent spouse Philippines. The law of the state of California provides for
has no longer the right to institute the prosecution for the applicability of the law of the domicile, by reason of
adultery. Therefore, marital bonds must be unsevered before
which the Court validly ruled in favor of the acknowledged
commencement of action for adultery or concubinage.
natural child.
4. ROEHR VS RODRIGUEZ
Divorce decrees obtained by foreigners in other
ARTICLE 17
countries are recognized in our jurisdiction, but the legal
EXTRINSIC VALIDITY
effects thereof, such as custody must still be determined
Art 17. The forms and solemnities of contracts, wills,
by our courts. Before our courts can give the effect of res
and other public instruments shall be governed by the
judicata to a foreign judgment, it must be shown that the
laws of the country in which they are executed.
parties opposed to the judgment had been given ample
When the acts referred to are executed before the
opportunity to do so. diplomatic or consular officials of the Republic of the
5. GARCIA VS. RECIO Philippines in a foreign country, the solemnities
The nullity of Rederick’s marriage with Editha as shown
established by Philippine laws shall be observed in
by the divorce decree issued was valid and recognized in the
their execution.
Philippines since the respondent is a naturalized Australian. Prohibitive laws concerning persons, their acts or
However, it does not prove respondent’s legal capacity to property, and those which have for their object public
marry petitioner. The decree, being a foreign document was order, public policy and good customs shall not be
inadmissible to court because it was not authenticated by rendered ineffective by laws or judgments
the consul/ embassy of the country where it will be used. promulgated, or by determinations or conventions
agreed upon in a foreign country.
A document may be proven as an official record of a foreign 1. LEX LOCI CELEBRATIONIS
country by either: -subject matter is governed by the laws of the
1. An official publication; country where they are executed.
2. Attested by the officer having legal custody of the
document;
3. If the record is not kept in the Philippines, such copy must 2. ACTS BEFORE DIPLOMATIC AND CONSULAR
be: OFFICIALS
Accompanied by a certificate issued by the proper Diplomatic and consular officials are
Philippine diplomatic or consular officer stationed in representatives of the state. Hence, any act of
the foreign country in which the record is kept and contract made in a foreign country before diplomatic
and consular officials must conform with the
4. Authenticated by the seal of his office.
solemnities under PH laws.
6. BARRETO VS GONZALES Host county WAIVES its jurisdiction over the
The entire conduct of the parties from the time of their premises of the diplomatic office of another county
separation until the case was submitted to this court, in located in the said host country.
which they all prayed that the Reno Divorce be ratified and
confirmed, clearly indicates a purpose to circumvent the 3. LAWS ON FORMS AND SOLEMNITIES
laws of the PH Islands regarding divorce and to secure for
themselves a change of status for reasons under conditions GR: LEX LOCI CELEBRATIONIS – Forms and solemnities
not authorized by our law. of contracts, wills, and other public instruments
7. GOVT VS FRANK (extrinsic validity) shall be governed by the laws of
No rule is better settled in law than that matters bearing the country in which they are executed.
upon the execution, interpretation and validity of a contract
are determined b the law of the place where the contract is EXCEPTIONS:
made. (Scudder vs. Union National Bank, 91 U. S., 406.) (a) Marriage between Filipinos validly solemnized
Matters connected with its performance are regulated by the abroad shall be void when under PH laws, such
law prevailing at the place of performance. Matters marriage is void; and
respecting a remedy, such as the bringing of suit, (b) Intrinsic Validity of Contracts: Validity is
admissibility of evidence, and statutes of limitations, depend determined by the following rules:
upon the law of the place where the suit is brought. i. The law stipulated by the parties shall be
8. TESTATE ESTATE OF BOHONAN VS BOHONAN applied;
ETAL ii. In default thereof, and the parties are of
According to Article 16 of NCC, the validity of the same nationality, their national law shall be
testamentary dispositions are to be governed by the national applied;
law of the person whose succession is in question. In the case iii. If the parties are not of the same
at bar, the testator was a citizen of the State of Nevada.
Since the laws of said state allow the testator to dispose of
nationalities, the law of the place of the perfection
all his property according to his will, his testamentary of the obligation shall govern its fulfillment; or
dispositions depriving his wife and children of what should be iv. If the above places are not specified and
their legitimes under the laws of the Philippines, should be they cannot be deduced from the nature and
respected and the project of partition made in accordance circumstances of the obligation, then the law of the
with his testamentary dispositions should be approved passive subject shall apply.
9. AZNAR VS GARCIA
Application of Laws – Foreign Law – Nationality Principle – 4. RULES ON PROHIBITIVE LAWS
Internal and Conflict Rule Application of the Renvoi Doctrine: GR: Prohibitive Laws concerning persons , their acts or
The Renvoi Doctrine is a judicial precept whereby the property, and laws which have for their object public
Conflict of Laws Rule in the place of the forum refer a order, public policy, or good customs are NOT
matter to the Conflict of Laws Rule in another, and the latter rendered ineffective by laws, or judgments
refers the matter back to the forum (remission) or to a third promulgated or by determinations or conventions
state (transmission). Thus, owing to its french translation: agreed upon in a foreign country.
“to send back” or “to refer back unopened”. In the case of
Aznar vs. Garcia. The Decedent was a national of California EXCEPTIONS:
and a domiciliary of the Philippines. The acknowledged Art 26 par 2 of FC
natural child claimed her right to her legitime pursuant to
Philippine law. This was opposed by the decedent’s executor Lex Nationalii Lex Rei Sitae Lex Loci
contending that the will, not mentioning her legitimes, was Celebrationis
valid pursuant to Californian law. The Court in the As to basis
Philippines ruled in favor of the child. The reason: while the Citizenship Where the Where the
Philippine laws hold that it is the law of the country of property is contract was
nationality of the decedent which should govern, where the situated executed
law of the latter refers back the matter to the forum or As to coverage
domiciliary, there is Renvoi. Thus the Philippine Court will Family rights Real and Forms and
Engr. Ariel Mark Pilotin 8
 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
and duties, personal solemnities
status, property (extrinsic
condition, and validity)
legal capacity
of persons
As to exceptions
Family Code (CIAO) 1. Article 26
(Art 26 par 2) (a) Capacity to Par 1 FC;
succeed; 2. Intrinsic
(b) Intrinsic validity of
validity of the contracts
will;
(c) Amount of
successional
rights and;
(d) Order of
succession

ACTIVITY OR MATTER PERSONS APPLICABLE

TO BE REGULATED BY INVOLVED LAWS
LAW
1. Family rights and FILIPINO PH laws apply-
duties, or the status, Citizens even if the citizen
condition and legal is abroad.
capacity of persons (ART 15)

LEX NATIONALII
2. Family rights and Foreign LEX NATIONALII -
duties, or the status national The laws of the
condition and legal country of the
capacity of persons foreign national
apply. (Art 15)
3.Crime, public (i) Filipino PH Laws (but
security and safety Citizens subject to the
--within PH territory (ii) Those who principles of
live and international law
sojourn in the and treaties) (Art
PH 14)
3. Properties both Filipino or LEX LOCI REI
Real and Personal Foreign SITAE
National -PH laws for
properties in the
PH(Art 16)
4. Intestate and Filipinos PH Laws (Art 16)
Testamentary
Succession (with
respect to the order
of succession and to
the amount of
successional rights and
to the intrinsic
validity of
testamentary
provisions
5. Intestate and Foreign Law of the
Testamentary National Country of the
Succession (with Foreign National
respect to the order (Art 16)
of succession and to
the order of NOTE: The law of
succession and to the the law of the
amount of Foreign National
successional rights and applies even if he
to the intrinsic or she is a former
validity of Filipino.
testamentary
provisions)
6. Formamilities- Filipino or LEX LOCI
forms and solemnities Foreign CELEBRACIONIS
of contracts, wills, National -law of the
and other public country where
instruments executed. (Art 17)

ARTICLE 18
SUPPLETORY IN NATURE
Art 18. In matters which are governed by the Code of
Commerce and special laws, their deficiency shall be
supplied by the provisions of this Code.

Engr. Ariel Mark Pilotin 9

 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
BAR QUESTIONS
TOPIC: CONFLICTS OF LAW (QUAMTO)
1. If a will is executed by a testator who is a Filipino
citizen, what law will govern if the will is executed
in the Philippines? What law will govern if the will is
executed in another country? Explain your answers.
(a) If a will is executed by a foreigner, for
instance, by a Japanese, residing in the Philippines,
what law will govern if the will is executed in the
Philippines?
(b) And what law will govern if the will is
executed in Japan, or some other country, for
instance, the USA? Explain your answers. (1990 Bar)
ANS:
a. If the testator who is a Filipino citizen
executes his will in the Philippines, Philippine law will
govern the formalities.
If said Filipino testator is a foreigner executes his
will in another country, the law of the country where
he may be or Philippine law will govern the formalities
(Article 815, Civil Code).
b. If the testator is a foreigner residing in the
Philippines and he executes his will in the Philippines,
the law of the country of which he is a citizen or
Philippine law will govern the formalities.
If the testator is a foreigner and
executes his will in a foreign country, the law of his
place of residence or the law of the country of which
he is a citizen or the law of the place of execution, or
Philippine law will govern the formalities (Articles 17,
816, 817, Civil Code).
2. Jacob, a Swiss national, married Lourdes, a
Filipina, in Berne, Switzerland. Three years later,
the couple decided to reside in the Philippines.
Jacob subsequently acquired several properties in
the Philippines with the money he inherited from
his parents. Forty years later, Jacob died intestate,
and is survived by several legitimate children and
duly recognized illegitimate daughter Jane, all
residing in the Philippines.
Suppose that Swiss law does not allow
illegitimate children to inherit, can Jane, who is a
recognized illegitimate child, inherit part of the
properties of Jacob under Philippine law?
Assuming that Jacob executed a will
leaving certain properties to Jane as her legitime in
accordance with the law of succession in the
Philippines, will such testamentary disposition be
valid? (1991 Bar)
ANS:
Yes. As stated in the problem, Swiss law does not
allow illegitimate children to inherit. Hence, Jane
cannot inherit the property of Jacob under Philippine
law.
The testamentary disposition will not be
valid if it would contravene Swiss law; otherwise, the
disposition would be valid. Unless the Swiss law is
proved, it would be presumed to be the same as that
of Philippine law under the doctrine of processual
presumption.
3. The Japan Air Lines (JAL), a foreign corporation
licensed to do business in the Philippines, executed
in Manila a contract of employment with Maritess
Guapa under which the latter was hired as a
stewardess on the aircraft plying the Manila-Japan
-Manila route. The contract specifically provides
that
(1) the duration of the contract shall be two
years,
(2) notwithstanding the above duration, JAL may
terminate the agreement at any time by giving her
notice in writing ten (10) days in advance, and
(3) the contract shall be constued as governed
under and by the laws of Japan and only the court in
Tokyo, Japan shall have the jurisdiction to consider
any matter arising from or relating to the contract.
Engr. Ariel Mark Pilotin
JAL dismissed Maritess on the fourth month of
her employment without giving her due notice.
Maritess then filed a complaint with the Labor
Arbiter for reinstatement, backwages and damages.
The lawyer of JAL contends that neither the Labor
Arbiter nor any other agency or court in the
Philippines has jurisdiction over the case in view of
the above provision (3) of the contract which
Maritess voluntarily signed. The contract is the law
between her and JAL. Decide the issue.
Where under a State’s own conflicts rule that
domestic law of another State should apply, may the
courts of the former nevertheless refuse to apply
the latter? If so, under what circumstance?
ANS:
Labor Legislations are generally intended as
expressions of public policy on employer-employee
relations. The contract therefore, between JAL and
Maritess may apply only to the extent that its
provisions are not inconsistent with Philippine labor
laws intended particularly to protect employees.
Under the circumstances, the dismissal of
Maritess without complying with Philppine Labor law
would be invalid and any stipulation iun the contract
to the contrary is considered void. Since the law of
the forum in this case is the Philippine law, the issues
should be resolved in accordance with Philippine law.
The third paragraph of Art. 17 of the Civil Code
provides that:
“Prohibitive laws concerning persons, their acts
or property, and those which have for their object
public order, public policy and good customs shall not
be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.”
Accordingly, a state’s own conflict of laws rule
may, exceptionally be inapplicable, given public
policy considerations by the law of the forum.
Going into the specific provisions of the contract
in question, I would rule as follows:
The duration of the contract is not opposed
to Philippine law and it can therefore be valid as
stipulated
The second provision to the effect that
notwithstanding duration, JAL may terminate her
employment is invalid being inconsistent with our
Labor laws;
That the contract shall be construed as
governed under and by the laws of Japan andvonly the
courts of Tokyo, Japan shall have jurisdiction, is
invalid as clearly opposed to the aforcited third
paragraph of Arts. 17 and 1700 of the Civil Code which
provides:
“Art. 1700. The relations between capital and
labor are not merele contractual. They are so
impressed with public interest that labor contracts
must yield to the common good. Therefore, such
contracts are subject to the special laws on labor
unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labor
and similar subjects.”
4. X and Y entered into a contract in
Australia, whereby it was agreed that X would
build a commercial building for Y in the
Philippines, and in payment for the
construction, Y will transfer and convey his
cattle ranch located in the United States in
favor of X.
(a) What law would govern:
i. The validity of the contract?
ii. The performance of the contract?
iii. The consideration of the contract? (1992
Bar)
ANS:
i. The validity of the contract will be
governed by Australian law, because the validity
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
refers to the element of the making of the contract in
this case.
ii. The performance will be governed by the
law of the Philippines where the contract is to be
performed.
iii The consideration will be governed by the
law of the United States where the ranch is located.
5. A, a Filipino, executed a will in Kuwait while
there as a contract worker. Assume that under the
laws of Kuwait, it is enough that the testator affix
his signature in the presence of two witnesses and
that the will need not be acknowledged before a
notary public.
May the will be probated in the Philippines?
(1993 Bar)
ANS
Yes, under Articles 815 and 17 of the Civil Code, the
formality of the execution of a will is governed by the
law of the place of execution, If the will was
executed with the formalities prescribed by the laws
of Kuwait and valid there as such, the will is valid and
may be probated in the Philippines.
6. While in Afghanistan, a Japanese by the name of
Sato, Sold to Ramoncito, a Filipino, a parcel of land
situated in the Philippines which Sato inherited from
his Filipino mother.
(a) What law governs the formality in the
execution of the contract of sale? Explain your
answer and give its legal basis.
(b) What law governs the capacity of the
Japanese to sell the land?
(c) What law governs the capacity of the Filipino
to buy the land? Explain your answer with legal basis.
(1995 Bar)
ANS:
(a) Under Art. 16 par. 1, NCC, real property
is subject to the law of the country where it is
situated. Since the property is situated in the
Philippines, Philippine law applies. The rule of lex rei
sitae in Art. 16 prevails over lex loci contractus in Art.
17 of the NCC.
(b) Japanese law governs the capacity of
the Japanese to sell the land being his personal law on
the basis of an interpretation of Art. 15, NCC.
(c) Philippine law governs the capacity of
the Filipino to buy the land. In addition to the
principle of lex rei sitae given above, Article 15 of the
NCC specifically provides that Philippine laws relating
to legal capacity of persons are binding upon citizens
of the Philippine no matter where they are.
7. On 8 December 1991, Vanessa purchased from
the Manila office of Euro-Aire on airline ticket for its
Flight No. 710 from Dallas to Chicago on 16 January
1992. Her Flight reservation was confirmed. On her
scheduled departure Vanessa checked in on time at
the Dallas airport. However, at the check-in counter
she discovered that she was waitlisted with some
other passengers because of intentional
overbooking, a Euro-Aire policy and practice. Euro-
Aire admitted that Vanessa was not advised of such
policy when she purchased her plane ticket. Vanessa
was only able to fly two days later by taking another
airline.
Vanessa sued Euro-Aire in Manila for breach of
contract and damages. Euro-Aire claimed that it
cannot be held liable for damages because its
practice of overbooking passengers was allowed by
the US Code of Federal Regulations. Vanessa on the
other hand contended that assuming that US Code of
Federal Regulations allowed intentional
overbooking, the airline company cannot invoke the
US Code on the ground that the ticket was
purchased in Manila, hence, Philippine law should
apply, under which Vanessa can recover damages for
breach of contract of carriage. Decide. Discuss fully.
(1995 Bar)
Engr. Ariel Mark Pilotin
ANS. Vanessa can recover damages under Philippine
law for breach of contract of carriage. Philippine law
should govern as the law of the place where the plane
tickets were bought and the contract of carriage was
executed. In Zalamea v. Court of Appeals (GR No.
104235, Nov. 10, 1993) the Supreme Court applied
Philippine law in recovery of damages for breach of
contract of carriage for the reason that it is the law of
the place where the contract was executed.
8. Michelle, the French daughter of Penreich, a
German national, died in Spain leaving real
properties in the Philippines as well as valuable
personal properties in Germany.
(a) What law determines who shall succeed the
deceased? Explain your answer and give its legal
basis.
(b) What law regulates the distribution of the
real properties in the Philippines? Explain your
answer and give its legal basis.
(c) What law governs the distribution of his
personal properties in Germany? Explain your
answer and give its legal basis. (1995 Bar)
ANS.
(a) The national law of the decedent (French law)
shall govern in determining who will succeeed to his
estate. The legal basis is Art. 16 par. 2, NCC.
(b) The distribution of the real properties in the
Philippines shall be governed by French law. The legal
basis is Art. 16, NCC.
(c) The distribution of the personal properties in
Germany shall be governed by French law. The legal
basis is Art. 16, NCC.
9. Alma was hired as a domestic helper in Hongkong
by the Dragon Services, Ltd., through its local
agent. She executed a standard employment
contract designed by the Philippine Overseas
Workers Administration (POEA) for overseas Filipino
workers. It provided for her employment for one
year at a salary of US$1,000.00 a month. It was
submitted to and approved by the POEA. However,
when she arrived in Hongkong, she was asked to
sign another contract by Dragon Services, Ltd.
which reduced her salary to only US$600.00 a
month. Having no other choice, Alma signed the
contract but when she returned to the Philippines,
she demanded payment of the salary differential of
US$400.00 a month. Both Dragon Services, Ltd. and
its local agent claimed that the second contract is
valid under the laws of Hongkong and therefore
binding on Alma.Is their claim correct? Explain.
(1996 Bar)
ANS. Their claim is not correct. A contract is the law
between the parties but the law can disregard the
contract if it is contrary to public policy. The provision
of the 1987 Constitution on the protection of labor
and on social justice (Sec. 10, Art. II) embody a public
policy of the Philippines. Since the application of
Hongkong law in this case is in violation of that public
policy, the application shall be disregarded by our
Courts (Cadalin v. POEA, 238 SCRA 762).
10. In 1977, Mario and Clara, both Filipino citizens,
were married in the Philippines. . Three years later,
they went to the United States of America and
established their residence in San Francisco,
California. In 1987, the couple applied for, and
were granted, U.S. citizenship. In 1989, Mari,
claiming to have been abandoned by Clara, was able
to secure a decree of divorce in Reno, Nevada, USA.
In 1990, Mario returned to the Philippines and
married Juana who knew well Mario’s past life.
(a) Is the marriage between Mario and Juana
valid?
(b) Would the renvoi doctrine have any
relevance to the case? (1997 Bar)
ANS.
(a) Yes. In relation to Art. 15 of the Civil Code,
Conflict of Laws provides that the recognition of an
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
absolute divorce granted in another State rests on the
citizenship of the parties at the time the divorce was
granted (Paras, Phil. Conflict of Laws, p. 259). Applied
in this case, the divorce decree issued to Clara and
Mario will be recognized as valid here considering that
at the time the foreign decree was granted, both Clara
and Mario are citizens of the USA, a country which
grants/allows absolute divorce. Since the marriage
between Mario and Clara has been validly terminated,
Mario and Juana can freely marry each other.
(b) No. The renvoi doctrine is relevant in cases
where one country applies the domiciliary theory and
the other the nationality theory, and the issue
involved is which of the laws of the two countries
should apply to determine the order of succession, the
amount of successional rights, or, the intrinsic validity
of testamentary provisions. Such issue is not involved
in this case.
11. Juan is a Filipino citizen residing in Tokyo,
Japan. State what laws govern:
(a) His capacity to contract marriage in Japan.
(b) His successional rights as regards his
deceased Filipino father’s property in Texas, USA
(c) The extrinsic validity of the last will and
testament which Juan executed while sojourning in
Switzerland.
(d) The intrinsic validity of said will. (1998 Bar)
ANS:
(a) Juan’s capacity to contract marriage is
governed by Philippine law – i.e. the Family Code –
pursuant to Art. 15, Civil Code, which provides that
our laws relating to, among others, legal capacity of
persons are binding upon citizens of the Philippines
even though living abroad.
(b) By way of exception to the general rule of lex
rei sitae prescribed by the first paragraph of Art. 16,
Civil Code, a person’s successional rights are governed
by the national law of the decedent (2nd par., Art. 16).
Since Juan’s deceased father was a Filipino citizen,
Philippine law governs Juan’s successional rights.
(c) The extrinsic validity of Juan’s will is governed
by (a) Swiss law, it being the law where the will was
made (Art. 17, 1st par. Civil Code), or (b) Philippine
law, by implication from the provisions of Art. 816,
Civil Code, which allows even an alien who is abroad to
make a will in conformity with our Civil Code.
(d) The intrinsic validity of his will is governed by
Philippine law, it being his national law (Art. 16, Civil
Code).
12. Francis Albert, a citizen and resident of New
Jersey, USA, under whose law he was still a minor,
being only 20 years of age, was hired by ABC
Corporation of Manila to serve for two years as its
chief computer programmer. But after serving for
only four months, he resigned to join XYZ
Corporation, which enticed him by offering more
advantageous terms. His first employer sues him in
Manila for damages arising from the breach of his
contract of employment. He sets up his minority as a
defense and asks for annulment of the contract on
that ground. The plaintiff disputes this by alleging
that since the contract was executed in the
Philippines under whose law the age of majority is 18
years, he was no longer a minor at the time of
perfection of the contract. Will the suit prosper?
(1998 Bar)
ANS. The suit will not prosper under Art. 15, Civil
Code, New Jersey law governs Francis Albert’s capacity
to act, being his personal law from the standpoint of
both his nationality and his domicile. He was,
therefore, a minor at the time he entered into the
contract.
13. Alex was born a Filipino but was a naturalized
Canadian citizen at the time of his death on Decmber
25, 1998. He left behind a last will and testament in
which he bequeathed all his properties, real and
personal, in the Philippines to his acknowledged
illegitimate Filipina daughter and nothing to his two
Engr. Ariel Mark Pilotin
legitimate Filipino sons. The sons sought the
annulment of the last will and testament on the
ground that it deprived them of their legitimes but
the daughter was able to prove that there were no
compulsory heirs or legitimes under Canadian law.
Who should prevail? Why? (2001 Bar)
ANS. The daughter should prevail because Art. 16 of
the New Civil Code provides that intestate and
testamentary succession shall be governed by the
national law of the person whose succession is under
consideration.
14. Felipe and Felisa, both Filipino citizens, were
married in Malolos, Bulacan on June 1, 1950. In
1960, Felipe went to the United States, becoming a
US citizen in 1975. In 1980, he obtained a divorce
from Felisa, who was duly notified of the
proceedings. The divorce decree became final
under Califronia law. Coming back to the Philippines
in 1982, Felipe married Segundina, a Filipino
citizen. In 2001, Felipe, then domiciled in Los
Angeles, California, died, leaving one child by
Felisa, and another one by Segundina. He left a will
which was executed in Manila under which he left
his estate to Segundina and his two children and
nothing to Felisa.
Segundina files a petition for the probate of
Felipe’s will. Felisa questions the intrinsic validity
of the will, arguing that her marriage to Felipe
subsisted despite the divorce obtained by Felipe
because said divorce is not recognized in the
Philippines. For this reason, she claims that the
properties left by Felipe are their conjugal
properties and that Segundina has no successional
rights.
(a) Is the divorce secured by Felipe in
California recognizable and valid in the Philippines?
(b) How does it affect Felipe’s marriage
to Felisa? Explain.
(c) What law governs the formalities of
the will? Explain.
(d) Will Philippine law govern the
intrinsic validity of the will? Explain. (2002 Bar)
ANS:
(a) The divorce secured by Felipe in
California is recognizable and valid in the Philippines
because he was no longer a Filipino at the time he
secured it. Aliens may obtain divorces abroad which
may be recognized in the Philippines provided that
they are valid according to their national law (Van
Dorn v. Romillo, Jr., 139 SCRA 139 [1985]; Quita v.
Court of Appeals, 300 SCRA 406 [1998]; Llorente v.
Court of Appeals, 345 SCRA 592 [2002]).
(b) With respect to Felipe the divorce is
valid, but with respect to Felisa it is not. The divorce
will not capacitate Felisa to remarry because she and
Felipe were both Filipino at the time of their
marriage. However, in DOJ Opinion No. 134 series of
1993, Felisa is allowed to remarry because the
injustice sought to be corrected by Article 26 also
obtains in her case.
(c) The foreigner who executes his will in
the Philippine may observe the formalities prescribed
in:
The law of the country of which he is a
citizen under Art. 817 of the NCC, or
The law of the Philippines being the law of
the place of execution under Art. 17 of the NCC.
(d) Philippine law will not govern the
intrinsic validity of the will. Art. 16 of the New Civil
Code provides that intrinsic validity of testamentary
provisions shall be governed by the national law of the
person whose succession is under consideration.
California law will govern the intrinsic validity of the
will.
15. Felipe is a Filipino citizen. When he went to
Sydney for vacation, he met a former business
associate, who proposed to him a transaction which
took him to Moscow. Felipe brokered a contract
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
between Sydney Coals Corp. (Coals), an Australian
firm, and Moscow Energy Corp. (Energy), a Russian
firm, for Coals to supply coal to Energy on a monthly
basis for three years. Both these firms were not
doing, and still do not do, business in the
Philippines. Felipe shuttled between Sydney and
Moscow to close the contract. He also executed in
Sydney a commission contract with Coals and in
Moscow with Energy, under which contracts he was
guaranteed commissions by both firms based on a
percentage of deliveries for the three-year period,
payable in Sydney and in Moscow, respectively,
through deposits in accounts that he opened in the
two cities. Both firms paid Felipe his commission for
four months, after which they stopped paying him.
Felipe learned from his contacts, who are residents
of Sydney and Moscow,that the two firms talked to
each other and decided to cut him off. He now files
suit in Manila against both Coals and Energy for
specific performance.
(1) Define or explain the principle of “lex loci
contractus”
(2) Define or explain the rule of “forum non
conveniens”
(3) Should the Philipine court assume
jurisdiction over the case? Explain. (2002 Bar)
ANS
(1) It is the law of the place where contrats,
wills, and other public instruments are executed and
governs their “forms and solemnities”, pursuant to the
first paragraph, Article 17 of the New Civil Code; or
It is the proper law of the contract; i.e. the
system of law intended to govern the entire contract,
including its essential requisites, indicating the law of
the place with which the contract has its closest
connection or where the main elements of the
contract converge, as illustrated by Zalamea v. Court
of Appeals (228 SCRA 23 [1993]), it is the law of the
place where the airline ticket was issued, where the
passengers are nationals and residents of, and where
the defendant airline company maintained its office.
(2) Forum non conveniens means that a court has
discretionary authority to decline jurisdiction over a
cause of action when it is of the view that the action
may be justly and effectively adjudicated elsewhere.
(3) No, the Philippine courts cannot acquire
jurisdiction over the case of Felipe. Firstly, under the
rule of forum non conveniens, the Philippine court is
not a convenient forum as all the incidents of the case
occurred outside the Philippines. Neither are both
Coals and Energy doing business inside the Philippines.
Secondly, the contracts were not perfected in the
Philippines. Under the principle of lex loci contractus,
the law of the place where the contract is made shall
apply. Lastly, the Philippine court has no power to
determine the facts surrounding the execution of said
contracts. And even if a proper decision could be
reached, such would have no binding effect on Coals
and Energy as the court was not able to acquire
jurisdiction over the said corporations (Manila Hotel
Corp. v. NLRC,G.R. No. 120077, October 13, 2000).
16. Gene and Jane, Filipinos, met and got married in
England while both were taking up post graduate
courses there. A few years after their graduation,
they decided to annul their marriage. Jane filed an
action to annul her marriage to Gene in England on
the ground of the latter’s sterility, a ground for
annulment of marriage in England. The English court
decreed the marriage annulled. Returning to the
Philippines, Gene asked you whether or not he
would now be free to marry his former girlfriend.
What would your legal advice be? (2003 Bar)
ANS.
No, Gene is not free to marry his former girlfriend.
His marriage to Jane if valid according to the forms
and solemnities of British law, is valid here (Art. 17,
1st par., NCC). However, since Gene and Jane are still
Filipinos, although living in England, the dissolution of
their marriage is still governed by Philippine law (Art.
Engr. Ariel Mark Pilotin
15, NCC). Since, sterility is not one of the grounds for
the annulment of a marriage under Art. 45 of the
Family Code, the annulment of Gene’s marriage to
Jane on that ground is not valid in the Philippines
(Art. 17, par., NCC).
17. A. PH and LV are HK Chinese. Their
parents are now Filipino citizens who live in Manila.
While still students in MNS State, they got married
although they are first cousins. It appears that both
in HK and MNS State first cousins could marry
legally.They plan to reside and set up business in
the Philippines. But they have been informed,
however, that the marriage of first cousins here is
considered void from the beginning by reason of
public policy. They are in a dilemma. They don’t
want to break Philippine Law, much less their
marriage vow. They seek your advice on whether
their civil status will be adversely affected by
Philippine domestic law? What is your advice?
In a class suit for damages, plaintiffs claimed
they suffered injuries from torture during martial
law. The suit was filed upon President EM’s arrival
on exile in HI, a U.S. state. The court in HI awarded
plaintiffs the equivalent of P100 billion under the
U.S. law on alien tort claims. On appeal, EM’s
Estate raised the issue of prescription. It argued
that since said U.S. law is silent on the matter, the
court should apply:
HI’s law setting a two-year limitation on tort
claims; or (2) the Philippine law which appears to
require that claims for personal injury arising from
martial law be brought within one year.
Plaintiffs countered that provisions of the
most analogous federal statute, the Torture Victims
Protection Act, should be applied. It sets ten years
as the period for prescription. Moreover, they
argued that equity could toll the statute of
limitations. For it appeared that EM had procured
Constitutional amendments granting himself and
those acting under his direction immunity from suit
during his tenure.
In this case, has prescription set in or not?
Considering the differences in the cited laws,
which prescriptive period should be applied: one
year under Philippine law, two years under HI’s
law, ten years under U.S. federal law, or none of
the above? Explain. (2004 Bar)
ANS:
The civil status of PH and LV will not be
adversely affected by Philippine law because they are
nationals of Hong Kong and not Filipino citizens.
Being foreigners, their status, conditions and
legal capacity in the Philippines are governed by the
law of Hong Kong, the country of which they are
citizens. Since their marriage is valid under Hong
Kong law, it shall be valid and respected in the
Philippines.
The US Court should apply US law, the law of the
forum, in determining the applicable prescriptive
period. While US law is silent on this matter, the US
Court will not apply Philippine law in determining the
prescriptive period. It is generally affirmed as a
principle in private international law that procedural
law is one of the exceptions to the application of
foreign law by the forum. Since prescription is a
matter of procedural law even in Philippine
jurisprudence (Codalin v. POEA/ JVLRC/Broum and
Root International, G.R. No. L-104776, December 5,
1994), the US Court will apply either HI or Federal
law in determining the applicable prescriptive period
and not Philippine law. The Restatement of American
law affirms this principle.
18. A Filipino couple, Mr. And Mrs. BM Jr., decided
to adopt YV, an orphan from St. Claire’s orphanage
in New York City.
They loved and treated her like a legitimate
child for they have none of their very own.
However, BM, Jr., died in an accident at sea,
followed to the grave a year later by his sick father,
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
BM, Sr. Each left a sizable estate consisting of bank
deposits, lands and buildings in Manila. May the
adopted child, YV, inherit from BM, Jr.? May she also
inherit from BM, Sr.? Is there a difference? Why?
Explain.
Mr. XT and Mrs. YT have been married for 20
years. Suppose the wife, YT, died childless, survived
only by her husband, XT. What would be the share
of XT from her estate as inheritance? Why? Explain.
(2004 Bar)
ANS.
YV can inherit from BM, Jr.
The succession to the estate of VM, Jr. Is
governed by Philippine law because he was a Filipino
when he died (Art. 16, Civil Code). Under Art. 1039 of
the Civil Code, the capacity of the heir to succeed is
governed by the national law of the decedent and not
by the national law of the heir. Hence, whether or not
YV can inherit from BM, Jr. is determined by Philippine
law. Under Philippine law, the adopted inherits from
the adopter as a legitimate child of the adopter.
YV, however, cannot inherit in his own right,
from the father of the adopter,
BM, Sr., because he is not a legal heir of BM, Sr.
The legal fiction of adoption exists only between the
adopted and the adopter (Teotico v. Del Val, 13 SCRA
406, [1965]). Neither may he inherit from BM, Sr. by
representing BM, Jr. Because in representation, the
representative must be a legal heir not only of the
person he is representing but also of the decedent
from whom the represented was supposed to inherit
(Art. 973, Civil Code)
Under the Civil Code, the widow or widower
is a legal and compulsory heir of the deceased spouse.
If the widow is the only surviving heir, there being no
legitimate ascendants, descendants, brothers, and
sisters, nephews and nieces, she gets the entire
estate.
19. A. Boni and Anne met while working
overseas. They became sweethearts and got
engaged to be married on New Year’s Eve aboard a
cruise ship in the Caribbean. They took the proper
license to marry in New York City, where there is a
Filipino consulate. But as planned the wedding
ceremony was officiated by the captain of the
Norwegian-registered vessel in a private suite among
selected friends.
Back in Manila, Anne discovered that Boni had
been married in Bacolod City 5 years earlier but
divorced in Oslo only last year. His first wife was
also a Filipina but now based in Sweden. Boni
himself is a resident of Norway where he and Anne
plan to live permanently.
Anne retains your services to advise her on
whether her marriage to Boni is valid under
Philippine law? Is there anything else she should do
under the circumstances?
In his lifetime, a Pakistani citizen, ADIL,
married three times under Pakistani law. When he
died an old widower, he left behind six children,
two sisters, three homes and an estate worth at
least 30 million pesos in the Philippines. He was
born in Lahore but last resided in Cebu City where
he had a mansion and where two of his youngest
children now live and work. Two of his oldest
children are farmers in Sulu, while the two middle-
aged children are employees in Zamboanga City.
Finding that the deceased left no will, the youngest
son wanted to file intestate proceedings before the
Regional Trial Court of Cebu City. Two other siblings
objected, arguing that it should be in Jolo before a
Shari’a court since his lands are in Sulu. But Adil’s
sisters in Pakistan want the proceedings held in
Lahore before a Pakistani court.
Which court has jurisdiction and is the proper
venue for the intestate proceedings? The law of
which country shall govern succession to his estate?
(2004 Bar)
Engr. Ariel Mark Pilotin
ANS
If Boni is still a Filipino citizen, his legal capacity
is governed by Philippine Law (Art. 15 Civil Code).
Under Philippine law, his marriage to Anne is void
because of a prior existing marriage which was not
dissolved by the divorce decreed in Oslo. Divorce
obtained abroad by Filipino is not recognized.
If Boni was no longer a Filipino citizen, the
divorce is valid. Hence, his marriage to Anne is valid if
celebrated in accordance with the law of the place
where it was celebrated. Since the marriage was
celebrated aboard a vessel of Norwegian registry,
Norwegian law applies. If the Ship Captain has
authority to solemnize the marriage aboard his ship,
the marriage is valid and shall be recognized in the
Philippines.
As to the second question, if Boni is still a
Filipino, Anne can file an action for declaration of
nullity of her marriage to him.
In so far as the properties of the decedent
located in the Philippines are concerned, they are
governed by Philippine law (Art. 16, Civil Code).
Under the Philippine law, the proper venue for the
settlement of the estate is the domicile of the
decedent at the time of his death. Since the decedent
last resided in Cebu City, that is the proper venue for
the intestate settlement of his estate. However, the
successional rights to the estate of ADIL are governed
by Pakistani law, his national law, under Art. 16 of
the Civil Code.
20. In 1985, Sonny and Lulu, both Filipino citizens,
were married in the Philippines. In 1987, they
separated, and Sonny went to Canada, where he
obtained a divorce in the same year. He then
married another Filipina, Auring, in Canada on
January 1, 1988. They had two sons, James and
John. In 1990, after failing to hear from Sonny, Lulu
married Tirso, by whomshe had a daughter, Verna.
In 1991, Sonny visited the Philippines where he
succumbed to heart attack.
a. Discuss the effect of the divorce
obtained by Sonny and Lulu in Canada
b. Explain the status of the
marriage between Sonny and Auring (2005
Bar)
ANS.
The divorce obtained by Sonny in Canada was not
valid because he and his wife were both Filipino
citizens. Divorce between a Filipino couple is not valid
under Philippine law even though they are living
abroad.
Since the divorce obtained by Sonny was void, his
marriage to Auring is necessarily void ab initio
because of his subsisting marriage to Lulu (Art. 41,
Family Code).
21. Roberta, a Filipino, 17 years of age, without the
knowledge of his parents, can acquire a house in
Australia because Australian Laws allow aliens to
acquire property from the age of 16. (2007 Bar)
ANS. TRUE. Since Australian Law allows alien to
acquire property from the age of 16, Roberta may
validly own a house in Australia, following the
principle of lex rei sitae enshrined in Art. 16, which
states "Real property as well as personal property is
subject to the law of the country where it is situated."
Moreover, even assuming that the legal capacity of
Roberta in entering the contract in Australia is
governed by Philippine Law, she will acquire
ownership over the property bought until the contract
is annulled.
22. Emmanuel and Margarita, American citizens and
employees of the U.S. State Department, got
married in the African state of Kenya where sterility
is a ground for annulment of marriage. Thereafter,
the spouses were assigned to the U.S. Embassy in
Manila. On the first year of the spouses’ tour of duty
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
in the Philippines, Margarita filed an annulment case
against Emmanuel before a Philippine court on the
ground of her husband’s sterility at the time of the
celebration of the marriage.
Will the suit prosper? Explain your answer.
(2009 Bar)
ANS.
No, the suits will not prosper. As applied to
foreign nationals with respect to family relations and
status of persons, the nationality principle set forth in
Art. 15 will govern the relations of Emmanuel and
Margarita. Since they are American citizens, the
governing law as to the ground for annulment is not
Kenyan Law which Magarita invokes in support of
sterility as such ground; but should be U.S. Law, which
is the national Law of both Emmanuel and Margarita as
recognized under Philippine Law. Hence, the
Philippine court will not give due course to the case
based on Kenyan Law. The nationality principle as
expressed in the application of national law of foreign
nationals by Philippine courts is established by
precedents (Pilapil v. Ibay-Somera, G.R. No. 80116,
June 30, 1989; Garcia v. Recio, G.R. No. 138322,
October 2, 2001; Llorente v. Court of Appeals, G.R.
No. 124371, November 23, 2000; and Bayot v. Court of
Appeals,G.R. No. 155635, November 7, 2008).
23. If Ligaya, a Filipino citizen residing in the United
States, files a petition for change of name before
the District Court of New York, what law shall apply?
Explain. (2009 Bar)
ANS.
New York law shall apply. The petition of
change of name filed in New York does not concern
the legal capacity or status of the petitioner.
Moreover, it does not affect the registry of any other
country including the country of birth of the
petitioner. However, whatever judgment is rendered
in that petition will have effect only in New York. The
New York court cannot, for instance, order the Civil
Registrar in the Philippines to change its records. The
judgment of the New York court allowing a change in
the name of the petitioner will be limited to the
records of the petitioner in New York and the use of
her new name in all transactions in New York. Since
the records and processes in New York are the only
ones affected, the New York court will apply New York
law in resolving the petition.
24. The doctrine of "processual presumption" allows
the court of the forum to presume that the foreign
law applicable to the case is the same as the local or
domestic law. (2009 Bar)
ANS.
TRUE. If the foreign law necessary to the
resolve an issue is not proven as a fact, the court of
the forum may presume that the foreign law is the
same as the law of the forum.
25. On December 1, 2000, Dr. Juanito Fuentes
executed a holographic will, wherein he gave
nothing to his recognized illegitimate son, Jay. Dr.
Fuentes left for the United States, passed the New
York medical licensure examinations, resided
therein, and became a naturalized American citizen.
He died in New York in 2007. The laws of New York
do not recognize holographic wills or compulsory
heirs.
(a) Can the holographic will of Dr.
Fuentes be admitted to probate in the Philippines?
Why or why not?
(b) Assuming that the will is probated in
the Philippines, can Jay validly insist that he be
given his legitime? Why or why not? (2009 Bar)
A:
(a) Yes, the holographic will of Dr. Fuentes may be
admitted to probate in the Philippines because there is
no public policy violated by such probate. The only
Engr. Ariel Mark Pilotin
issue at probate is the due execution of the will which
includes the formal validity of the will. As regards
formal validity, the only issue the court will resolve at
probate is whether or not the will was executed in
accordance with the form prescribed by the law
observed by the testator in the execution of his will.
For purposes of probate in the Philippines, an alien
testator may observe the law of the place where the
will was executed (Art. 17), or the formalities of the
law of the place where he resides, or according to the
formalities of the law of his own country, or in
accordance with the Philippine Civil Code (Art. 816).
Since Dr. Fuentes executed his will in accordance with
the Philippine law, the Philippine court shall apply the
New Civil Code in determining the formal validity of
the holographic will. The subsequent change in the
citizenship of Dr. Fuentes did not affect the law
governing the validity of his will. Under the New Civil
Code, which was the law used by Dr. Fuentes, the law
enforced at the time of execution of the will shall
govern the formal validity of the will (Art. 795).
(b) No, Jay cannot insist because under New York
law he is not a compulsory heir entitled to a legitime.
The national law of the testator determines who his
heirs are, the order that they succeed, how much
their successional rights are, and whether or not a
testamentary disposition in his will is valid (Art 16).
Since, Dr. Fuentes was a US citizen, the laws of the
New York determines who his heirs are. And since the
New York law does not recognize the concept of
compulsory heirs, Jay is not a compulsory heir of Dr.
Fuentes entitled to a legitime.
26. Ted, married to Annie, went to Canada to work.
Five (5) years later, Ted became a naturalized
Canadian citizen. He returned to the Philippines to
convince Annie to settle in Canada. Unfortunately,
Ted discovered that Annie and his friend Louie
were having an affair. Deeply hurt, Ted returned to
Canada and filed a petition for divorce which was
granted. In December 2013, Ted decided to marry
his childhood friend Corazon in the Philippines. In
preparation for the wedding, Ted went to the Local
Civil Registry of Quezon City where his marriage
contract with Annie was registered. He asked the
Civil Register to annotate the decree of divorce on
his marriage contract with Annie. However, he was
advised by the National Statistics Office (NSO) to
file a petition for judicial recognition of the decree
of divorce in the Philippines.
Is it necessary for Ted to file a petition for
judicial recognition of the decree of divorce he
obtained in Canada before he can contract a second
marriage in the Philippines? (2014 Bar)
ANS.
Yes, a divorce decree even if validly
obtained abroad cannot have effect in the Philippines
unless it is judicially recognized through an
appropriate petition filed before Philippine courts.
The foreigner must file a petition under Rule 108 and
prove therein the fact of divorce by presenting an
official copy attested by the officer having custody of
the original. He must also prove that the court which
issued the divorce has jurisdiction to issue it and the
law of the foreign country on divorce (Corpuz v. Sto.
Tomas, G.R. No. 186571, August 11, 2010).
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
CHAPTER 2
HUMAN RELATIONS
ARTICLE 19
HONESTY AND GOOD FAITH
ARTICLE 20
ACTS CONTRARY TO LAW
ARTICLE 21
ACTS CONTRARY TO MORALS, GOOD CUSTOMS OR
PUBLIC POLICY
Art. 19. Every person must, in the exercise of his
rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty
and good faith.
Art. 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify
the latter for the same.
Art. 21. Any person who wilfully causes loss or injury
to another in a manner that is contrary to morals,
good customs or public policy shall compensate the
latter for the damage.
1. ART 19, PRINCIPLE OF ABUSE OF RIGHTS
-Art 19 contains what is commonly referred to as
the principle of abuse of right, sets certain standards
which may be observed not only in the exercise of
one’s rights but also in the performance of one’s
duties. These standards are the ff:
(a) To act with justice;
(b) To give everyone his due;
(c) And to observe honesty and good faith
“A right, though by itself legal because
recognized or granted by law as such, may
nevertheless become a source of some illegality.When
a right is exercised in a manner which does not
conform with the norms enshrined in Art 19 and results
in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be held
responsible.” (Albenson Enterprise vs CA)
“Article19 is the general rule which governs
the conduct of human relations. By itself, it is not
the basis of an actionable tort. Art 19 describes the
degree of care required so that an actionable tort
may arise when it is alleged together with Article 20
or 21”
2. ELEMENTS OF ABUSE OF RIGHTS (Art 19)
a) There is a legal right or duty;
b) Which is exercised in bad faith;
c) For the sole intent of prejudicing or
injuring another.
3. ART 20, GENERAL SANCTION
-Art 20 speaks of the general sanction for all
other provisions of law which do not especially provide
their own sanction.
4. ART 21, DEALS WITH ACTS CONTRA BONUS MORES
- designed to fill in the countless gaps in the
statues, which leave so many victims of moral wrongs
helpless, even though they have actually suffered
material and moral injury.
5. ELEMENTS ART 21
a) There is an act which is LEGAL;
b) But which is CONTRARY to morals, good
customs, and public order, or public
policy, and
c) It is done with INTENT to injure.
6. INTENTIONAL
The common element in Art 19 and 21 is that it
must be INTENTIONAL. However Art 20 may be done
either willfully or negligently.
7. BREACH OF PROMISE TO MARRY
Engr. Ariel Mark Pilotin
GR: Breach of promise to marry by itself is not
actionable.
By way of exception, breach of promise to marry
may be actionable for being contrary to morals, good
customs, public order or public policy.
EXC:
(i) In Pe vs Pe, Where there is MORAL SEDUCTION
or when a woman was seduced through trickery or
some ingenious scheme;
(ii) In Wassmer vs Velez, when the wedding was
canceled after formally setting the date of the
wedding and after spending substantial amounts;
(iii) In Victorino vs Nora, when the man failed to
appear during the ceremony with the intent to
humiliate or embarrass the woman.
8. MALICIOUS PROSECUTION
-may be considered as abuse of right and an act
contra bonus mores.
-The elements of liability are:
a) The Fact of the prosecution, and the further
fact that the defendant was himself the
prosecutor, and that the action was finally
terminated with an acquittal;
b) That in bringing the action, the prosecutor
acted without probable cause, and
c) The prosecutor was actuated or impelled by
legal malice-- there is inexcusable intent to
injure, oppress, vex, annoy or humiliate.
9. DOCTRINE OF VOLENTI NON FIT INJURIA
(To which a person assents is not esteemed in
law as injury)
- it refers to self-inflicted injuries or to the
consent to injury which precludes the recovery of
damages by one who has knowingly and voluntarily
exposed himself to danger, even if he is not negligent
in doing so. (NIKKO HOTEL MANIL GARDEN v. REYES)
10. DAMNUM ABSQUE INJURIA
(Damage without injury)
-a person who exercises his legal right does no
injury. However, it cannot be said that a person
exercises a right when he unnecessarily prejudices
another or offends morals or good customs. When
damages result from a person’s exercise of rights is
damnum absque injuria.
CASES
1. COGEO-CUBAO OPERATORS AND DRIVERS
ASSOCIATION VS CA
Article 21 of the Civil Code provides that any person
who wilfully causes loss or injury to another in a manner that
is contrary to morals, good customs or public policy shall
compensate the latter for the damage. The provision covers
a situation where a person has a legal right which was
violated by another in a manner contrary to morals, good
customs or public policy. It presupposes loss or injury,
material or otherwise, which one may suffer as a result of
such violation.
It is clear form the facts of this case that petitioner
formed a barricade and forcibly took over the motor units
and personnel of the respondent corporation. This paralyzed
the usual activities and earnings of the latter during the
period of ten days and violated the right of respondent
Lungsod Corp. To conduct its operations thru its authorized
officers.
2. LLORENTE VS SB
It is no defense that the petitioner was motivated by no
ill-will (a grudge, according to the Sandiganbayan), since the
facts speak for themselves. It is no defense either that he
was, after all, complying merely with legal procedures since,
as we indicated, he was not as strict with respect to the
three retiring other employees.
It is the essence of Article 19 of the Civil Code, under
which the petitioner was made to pay damages, together
with Article 27, that the performance of duty be done with
justice and good faith. In the case of Velayo vs. Shell Co. of
the Philippines,  we held the defendant liable under Article
19 for disposing of its propertv — a perfectly legal act — in
order to escape the reach of a creditor. In two fairly more
recent cases, Sevilla vs. Court of Appeals and Valenzuela vs.
Court of Appeals, we held that a principal is liable under
Article 19 in terminating the agency — again, a legal act —
when terminating the agency would deprive the agent of his
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legitimate business.
3. GASHEM SHOOKAT BAKSH VS CA
Where a man's promise to marry is in fact the proximate
cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of
marrying her and that the promise was only a subtle scheme
or deceptive device to entice or inveigle her to accept him
and to obtain her consent to the sexual act, could justify the damages include physical suffering, mental anguish, fright,
award of damages pursuant to Article 21 not because of such
promise to marry but because of the fraud and deceit behind
it and the willful injury to her honor and reputation which
followed thereafter. It is essential, however, that such injury damages may be recovered if they are the proximate
should have been committed in a manner contrary to morals,
good customs or public policy.
In the instant case, respondent Court found that it was
the petitioner's "fraudulent and deceptive protestations of
love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with
him on the honest and sincere belief that he would keep said
promise, and it was likewise these fraud and deception on
appellant's part that made plaintiff's parents agree to their
daughter's living-in with him preparatory to their supposed
marriage."  
4. NIKKO HOTEL MANILA VS. REYES
When a right is exercised in a manner which does not
conform with the norms enshrined in Article 19 and results
in damage to another, a legal wrong is thereby committed
for which the wrongdoer must be responsible. When Article
19 is violated, an action for damages is proper under
Articles 20 or 21 of the Civil Code.
5. UNIVERSITY OF THE EAST VS. JADER
Educational institutions are duty-bound to inform the
students of their academic status and not wait for the latter
to inquire from the former. The conscious indifference of a
person to the rights or welfare of the person/persons who
may be affected by his act or omission can support a claim
for damages. Want of care to the conscious disregard of civil
obligations coupled with a conscious knowledge of the cause
naturally calculated to produce them would make the erring
party liable.
6. UYPITCHING vs QUIAMCO
“Honeste vivere, non alterum laedere et jus suum cuique
tribuere.”
To live virtuously, not to injure others and to give
everyone his due. These supreme norms of justice are the
underlying principles of law and order in society.
The basic principle of human relations, embodied in Article
19, also known as the “principle of abuse of right,”
prescribes that a person should not use his right unjustly or
contrary to honesty and good faith, otherwise he opens
himself to liability. There is an abuse of right when it is
exercised solely to prejudice or injure another. The exercise
of a right must be in accordance with the purpose for which
it was established and must not be excessive or unduly harsh;
there must be no intention to harm another. Otherwise,
liability for damages to the injured party will attach.
7. DBP VS CA
When the notion of legal entity is used to defeat public
convenience, justify wrong, protect fraud, or defend crime,
the law will regard the corporation as an association of
persons or in case of two corporations, merge them into one.
8. WASSMER VS VELEZ
Mere breach of promise to marry is not an actionable
wrong. But to formally set a wedding and go through the
preparation and publicity, only to walk out of it when the
matrimony is about to be solemnized, is quite different.This
is palpably and unjustifiably contrary to good customs for
which defendant must be answerable in damages in
accordance with Article 21.
9. PE VS PE
Defendant won Lolita's affection thru an ingenious scheme
or trickery and seduced her to the extent of making her fall
in love with him. This is shown by the fact that defendant
frequented the house of Lolita on the pretext that he
wanted her to teach him how to pray the rosary. Because of
the frequency of his visits to the latter's family who was
allowed free access because he was a collateral relative and
was considered as a member of her family, the two
eventually fell in love with each other and conducted
clandestine love affairs not only in Gasan but in Boac where
Lolita used to teach in a barrio school. When the rumors
about their illicit affair reached the knowledge of her
parents, defendant was forbidden from going to their house
and even from seeing Lolita. Plaintiff even filed deportation
proceedings against defendant who is a Chinese national.
Nevertheless, defendant continued his love affairs with
Lolita until she disappeared from the parental home, Held;
The wrong defendant has caused Lolita and her family is
indeed immeasurable considering the fact that he is a
Engr. Ariel Mark Pilotin
married man. Verily, he has committed an injury to Lolita's
family in a manner contrary to morals, good customs and
public policy as contemplated in Article 21 of the New Civil
Code.
10. SPS QUISUMBING VS MERALCO
Moral damages may be recovered when rights of
individuals including right against the deprivation of
property without due process of law are violated. Moral
serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury.
Although incapable of pecuniary computation, such
results of the defendant's wrongful act or omission.
Exemplary damages on the other hand are imposed by way
of example or correction for public.
11. GLOBE MACKAY CABLE VS CA
Article 19 of the Civil Code known to contain what is
commonly referred to as the principle of abuse of rights,
sets certain standards which must be observed not only in
the exercise of one's rights but also in the performance of
one's duties. These standards are the following: to act with
justice; to give everyone his due; and to observe honesty
and good faith. In determining whether or not the principle
of abuse of rights may be invoked, there is no rigid test
which can be applied. While the Court has not hesitated to
apply Article 19 whether the legal and factual
circumstances called for its application the question of
whether or not the principle of abuse of rights has been
violated resulting in damages under Article 20 or Article 21
or other applicable provision of law, depends on the
circumstances of each case.
ARTICLE 22 & 23
UNJUST ENRICHMENT
Art. 22. Every person who through an act of performance by
another, or any other means, acquires or comes into
possession of something at the expense of the latter without
just or legal ground, shall return the same to him.
Art. 23. Even when an act or event causing damage to
another's property was not due to the fault or negligence of
the defendant, the latter shall be liable for indemnity if
through the act or event he was benefited.
1. UNJUST ENRICHMENT
-No person can claim what is not validly his or
hers. Hence, he or she should not unduly profit on
something which does not meritoriously belong to him
or her.
2. NEMO CUM ALTERIUS DETRIMENTO LOCUPLETARI
POTEST
-doctrine on unjust enrichment which means that
a person shall not be allowed to profit or enrich
himself inequitably at another’s expense.
3. REQUISITES FOR APPLICATION
a) There is enrichment on the part of one
party;
b) There is impoverishment on the part of
another party;
c) There is lack of valid cause for one party to
acquire such property
4. ACCION IN REM VERSO
-Requisites
(i) Enrichment is without JUST OR LEGAL
GROUND;
(ii) Defendant has been ENRICHED;
(iii) Plaintiff has suffered LOSS;
(iv) He has no other ACTION based on contract,
quasi-contract, crime or quasi-delict;
(v) There must be a CAUSAL relation between the
two; and
(vi) The INDEMNITY cannot exceed the loss or
enrichment, whichever is less
5. ACCION IN REM VERSO V. SOLUTIO INDEBITI
ACCION IN REM VERSO SOLUTIO INDEBITI
-It is not necessary that -Payment made by
the payment was made mistake is an essential
by mistake; payment element to maintain the
could have been made action for recovery.
knowingly and
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voluntarily.
Nevertheless, there
would be recovery of
what has been paid.
VILLALVA VS. RCBC SAVINGS BANK,
Enrichment consists of every patrimonial, physical
or moral advantage, so long as it is appreciable in
money. It may also take the form of avoidance of
expenses and other indispensable reductions in the
patrimony of a person. It may also include the
prevention of a loss or injury.
ARTICLE 24
COURT VIGILANCE
Art. 24. In all contractual, property or other relations, when
one of the parties is at a disadvantage on account of his
moral dependence, ignorance, indigence, mental weakness,
tender age or other handicap, the courts must be vigilant for character." At the time the divorce decree was issued,
his protection.
1. COURT VIGILANCE
-the courts must be vigilant in protecting the
rights of the disadvantaged
ARTICLE 25
EXTRAVAGANCE DURING EMERGENCY
Art. 25. Thoughtless extravagance in expenses for pleasure
or display during a period of acute public want or emergency
may be stopped by order of the courts at the instance of any
government or private charitable institution.
1. REQUISITES FOR INJUNCTION
a) There should be a thoughtless extravagance
in expense for pleasure or display;
b) It must take place during a period of acute
public want or emergency
c) the injunction must be filed by any
government or private charitable
institution;
d) An injunction may be ordered by the court
2. TYPES OF VIOLATION OF THE RIGHT TO PRIVACY
a) Intrusion upon the plaintiff’s seclusion or
solitude or into his private affairs;
b) Public disclosure of embarrassing private
facts about the plaintiff;
c) Publicity which places the plaintiff in a false
light in the public eye; and
d) Appropriation for the defendant’s advantage
of plaintiff’s likeness or name.
3. FICTIONALIZED ACCOUNT OF LIFE
- right to privacy DOES NOT extend to
fictional or novelized representation of a person, no
matter how public a figure he or she may be.
4. ONLINE SOCIAL NETWORK (OSN)
-before one can have an expectation of
privacy in his or her OSN activity, it is first necessary
that said user manifests the intention to keep certain
posts private, through the employment of measures to
prevent access thereto or to limit its visibility.
-the utilization of privacy tools is the
manifestation of the user’s invocation of his or her
right to informational privacy. (Vivares vs St.
Theresa’s College)
5. ALIENATION OF AFFECTION
- to be liable:
(a) There muse be a valid marriage;
(b) Wrongful conduct with the plaintiff’s
spouse;
(c) The loss of affection or consortium; and
(d) Proof of causal relation between the
conduct of the defendant and the loss of
affection or consortium,
ARTICLE 26
PROTECTION OF HUMAN DIGNITY
Art. 26. Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons. The following and similar acts, though they may not
Engr. Ariel Mark Pilotin
constitute a criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family
relations of another;
(3) Intriguing to cause another to be alienated from his
friends;
(4) Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth, physical
defect, or other personal condition.
CASES
1. TENCHAVEZ VS ESCANO
It is equally clear from the record that the valid marriage
between Pastor Tenchavez and Vicenta Escaño remained
subsisting and undissolved under Philippine law,
notwithstanding the decree of absolute divorce that the
wife sought and obtained on 21 October 1950 from the
Second Judicial District Court of Washoe County, State of
Nevada, on grounds of "extreme cruelty, entirely mental in
Vicenta Escaño, like her husband, was still a Filipino
citizen. She was then subject to Philippine law, and Article
15 of the Civil Code of the Philippines.
From the preceding facts and considerations, there flows
as a necessary consequence that in this jurisdiction Vicenta
Escaño's divorce and second marriage are not entitled to
recognition as valid; for her previous union to plaintiff
Tenchavez must be declared to be existent and undissolved.
It follows, likewise, that her refusal to perform her wifely
duties, and her denial of consortium and her desertion of her
husband constitute in law a wrong caused through her fault,
for which the husband is entitled to the corresponding
indemnity (Civil Code, Art. 2176). Neither an
unsubstantiated charge of deceit nor an anonymous letter
charging immorality against the husband constitute, contrary
to her claim, adequate excuse. Wherefore, her marriage and
cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the
standpoint of Philippine Law, and entitls plaintiff-appellant
Tenchavez to a decree of "legal separation under our law, on
the basis of adultery" (Revised Penal Code, Art. 333).
2. ST. LOUIS REALTY VS CA
"Prying into the privacy of another's residence" and
"meddling with or disturbing the private life or family
relations of another" and "similar acts", "though they may
not constitute a criminal offense, shall produce a cause of
action for damages, prevention and other relief".
The damages fixed by Judge Leuterio are sanctioned by
Articles 2200, 2208 and 2219 of the Civil Code. Article 2219
allows moral damages for acts and actions mentioned in
Article 26. As lengthily explained by Justice Gatmaitan, the
acts and omissions of the firm fan under Article 26.
St. Louis Realty's employee was grossly negligent in mixing
up the Aramil and Arcadio residences in a widely circulated
publication like the Sunday Times. To suit its purpose, it
never made any written apology and explanation of the mix-
up. It just contented itself with a cavalier "rectification ".
ARTICLE 27
RELIEF AGAINST PUBLIC OFFICIALS
Art. 27. Any person suffering material or moral loss because
a public servant or employee refuses or neglects, without
just cause, to perform his official duty may file an action for
damages and other relief against he latter, without prejudice
to any disciplinary administrative action that may be taken.
-a public official is supposed to be an agent or at
least a representation of the government and,
therefore, the law exacts on him or her an obligation
to be very vigilant and just so that the public can be
assured that the government is truly effective in
servicing their needs.
1. CAUSES OFACTIONAGAINST PUBLIC OFFICER
a) Art 27. Refusal or Neglect of a Public
Officer
b) Art. 32. Duties Exercised by Public Officer
i. Good faith is not a Defense;
ii. Separate Civil Action may be
instituted; and
iii. Exemption of judges from this
provision
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c) Art 34. Subsidiary Liability of the City or
Municipality
DOCTRINES
1. LEDESMA VS CA
A president of a state college was held liable under
Art 27 after refusing to graduate a student with
honors which he honestly earned and deserved.
2. VDA DE LAID VS CA
Where the register of deeds assisted in the
fraudulent procurement of a certificate of title in
violation of the Land Registration Act, he was held
liable under Art 27.
ARTICLE 28
UNFAIR COMPETITION
Art. 28. Unfair competition in agricultural, commercial or
industrial enterprises or in labor through the use of force,
intimidation, deceit, machination or any other unjust,
oppressive or highhanded method shall give rise to a right of
action by the person who thereby suffers damage.
ARTICLE 29
ACQUITTAL IN CRIMINAL PROSECUTION
Art. 29. When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires
only a preponderance of evidence.  Upon motion of the
defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found
to be malicious.
If in a criminal case the judgment of acquittal is based
upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be inferred
from the text of the decision whether or not the acquittal is
due to that ground.
-If the guilt of the accused is not proven beyond
reasonable doubt, a civil action to prove civil liability
can still be filed where only preponderance of
evidence is needed.
-The fact that the guilt was not proven beyond
reasonable doubt must be expressly stated, it can be
inferred from the decision itself.
1. INSTITUTON OF CRIMINAL AND CIVIL ACTIONS
a) Art 29. Effect of an acquittal of an accused
in a Criminal Case;
b) Art 30. Preponderance of Evidence
c) Art 31. When May a Civil Action proceed
independently of the Criminal Action
d) Art 33. Defamation, Fraud, and Physical
Injuries as a Civil Action
e) Art 34. Reservation of Civil Actions
2. DEPENDENT CIVIL ACTIONS
-actions to enforce civil liability arising from a criminal
liability.
a) Dependent on Criminal Actions
i. If a case was filed AHEAD of the
criminal case, the separate action shall
be SUSPENDED until a final judgment is
rendered in the criminal case;
ii. If NO CASE is filed, a separate case
cannot be filed until rendition of final
judgment; and
iii. Civil liability is EXTINGUISHED if the
criminal case resulted in an ACQUITTAL
with a finding that the act complained
of was not actually committed by the
accused.
-Civil liability arising from crime or delict is impliedly
instituted with the criminal action, but a separate
case may be filed to enforce the same. Such case may
be filed ahead of the criminal action or after
reservation, upon rendition of final judgment.
b) Effect of Acquittal
Sec 2(b) of Rule 111 of the RoC states that civil
liability is extinguished of the criminal case resulted in
acquittal with a finding that the act complained of was
not actually committed.
ARTICLE 30
Engr. Ariel Mark Pilotin
CIVIL OBLIGATION ARISING FROM A CRIMINAL
OFFENSE
Art. 30. When a separate civil action is brought to demand
civil liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the civil
case, a preponderance of evidence shall likewise be
sufficient to prove the act complained of.
ARTICLE 31
CIVIL OBLIGATION NOT ARISING FROM FELONY
Art. 31. When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.
1. INDEPENDENT CIVIL ACTION
-APPLICABLE TO
a) Action based on Quasi-Delict;
b) Action for violation of Civil and Political
Rights under Article 32;
c) Action for Defamation, Fraud or Physical
Injuries under Art 33; and
d) Action for Neglect of Duty by Public Official
under Article 34.
ARTICLE 32
CONSTITUTIONAL RIGHTS
Art. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:
(1)  Freedom of religion;
(2)  Freedom of speech;
(3)  Freedom to write for the press or to maintain a
periodical publication;
(4)  Freedom from arbitrary or illegal detention;
(5)  Freedom of suffrage;
(6)  The right against deprivation of property without due
process of law;
(7)  The right to a just compensation when private property
is taken for public use;
(8)  The right to the equal protection of the laws;
(9)  The right to be secure in one's person, house, papers,
and effects against unreasonable searches and seizures;
(10)  The liberty of abode and of changing the same;
(11)  The privacy of communication and correspondence;
(12)  The right to become a member of associations or
societies for purposes not contrary to law;
(13)  The right to take part in a peaceable assembly to
petition the government for redress of grievances;
(14)  The right to be free from involuntary servitude in any
form;
(15)  The right of the accused against excessive bail;
(16)  The right of the accused to be heard by himself and
counsel, to be informed of the nature and cause of the
accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
(17)  Freedom from being compelled to be a witness against
one's self, or from being forced to confess guilt, or from
being induced by a promise of immunity or reward to make
such confession, except when the person confessing becomes
a State witness;
(18)  Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
(19)  Freedom of access to the courts.
In any of the cases referred to in this article, whether or not
the defendant's act or omission constitutes a criminal
offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and
for other relief. Such civil action shall proceed independently
of any criminal prosecution (if the latter be instituted), and
mat be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable from a
judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute.
1. TWO KINDS OF DUTIES EXERCISED BY PUBLIC
OFFICERS
a) Duty owing to the Public
b) Duty owing to particular individuals
GR: If the duty involved is a “duty owing to the
public in general”, an individual cannot have a cause
of action for damages against the public officer, even
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
though he may have been injured by the action or
inaction of the officer.
EXC: When the complaining individual suffers a
PARTICULAR OR SPECIAL INJURY ON ACCOUNT of the
public officer’s improper performance or non-
performance of his public duty.
2. RATIONALE OF ART 32
-serves as a measure of pecuniary recovery to
mitigate the injury to Constitutional rights
-it likewise serves notice to public officers and
employees that any violation on their part of any
person’s guarantee rights will meet with final
reckoning.
3. WHO ARE LIABLE
a) Public officials and employees
b) Private individuals
- even those who indirectly violate the constitutional
rights can be made liable.
4. JUDGES
-the responsibility set forth in Article 32 is not
demandable from a judge unless his act or omission
constitutes a violation of the Penal Code or other
penal statute.
ARTICLE 33
DEFAMATION, FRAUD, AND PHYSICAL INJURIES
Art. 33. In cases of defamation, fraud, and physical
injuries a civil action for damages, entirely separate
and distinct from the criminal action, may be brought
by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
1. RATIONALE
-to allow the citizen to enforce his rights in a
private action brought by brought by him, regardless
of the action of the State Attorney
2. FRAUD
-can include estafa
-For civil liability, for fraud to be awarded, the
defendant must have made a false representation of
fact to the plaintiff and the defendant knows that the
representation is false. The plaintiff must have acted
on the false representation and the defendant must
have intended that the representation be acted on.
3. DEFAMATION
-can include libel
4. PHYSICAL INJURIES
-can include death, or homicide, but not reckless
imprudence resulting to homicide
-Independent civil action for physical injuries
include an independent civil action for bodily injuries
resulting in death.
ARTICLE 34
MEMBERS OF POLICE FORCE
Art. 34. When a member of a city or municipal police force
refuses or fails to render aid or protection to any person in
case of danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The civil action
herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice
to support such action.
1. NO RESERVATION REQUIREMENT
-The independent Civil Actions shall proceed
independently of the criminal case. There is no need
to reserve the right to file an independent civil action
under Article 31, 32, 33 and 34.
2. CONCEPT OF CONCURRENCE OF CAUSES OF
ACTION AND REMEDIES
-Under the NCC, a single act or omission may give
rise to two separate causes of action. It may be based
on a quasi -delict under Art 2176 or any of Articles
32,33,or 34.
3. PROSCRIPTION AGAINST DOUBLE RECOVERY(Art
2177)
Engr. Ariel Mark Pilotin
The plaintiff cannot recover damages twice for
the same act or omission of the defendant. In other
words, although there are concurrent bases of
liability, the plaintiff can only recover once.
ARTICLE 35
RESERVATION OF CIVIL ACTIONS
Art. 35. When a person, claiming to be injured by a criminal
offense, charges another with the same, for which no
independent civil action is granted in this Code or any special
law, but the justice of the peace finds no reasonable grounds
to believe that a crime has been committed, or the
prosecuting attorney refuses or fails to institute criminal
proceedings, the complaint may bring a civil action for
damages against the alleged offender.  Such civil action may
be supported by a preponderance of evidence.  Upon the
defendant's motion, the court may require the plaintiff to
file a bond to indemnify the defendant in case the complaint
should be found to be malicious.
If during the pendency of the civil action, an information
should be presented by the prosecuting attorney, the civil
action shall be suspended until the termination of the
criminal proceedings.
1. RULE 111 OF ROC
RULE 111 - PROSECUTION OF CIVIL ACTION
   Section 1. Institution of criminal and civil actions. – (a)
When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged
shall be deemed instituted with the criminal action unless
the offended party waives the civil action, reserves the
right to institute it separately or institutes the civil action
prior to the criminal action.
   The reservation of the right to institute separately the
civil action shall be made before the prosecution starts
presenting its evidence and under circumstances affording
the offended party a reasonable opportunity to make such
reservation.
   When the offended party seeks to enforce civil liability
against the accused by way of moral, nominal, temperate,
or exemplary damages without specifying the amount
thereof in the complaint or information, the filing fees
therefore shall constitute a first lien on the judgment
awarding such damages.
   Where the amount of damages, other than actual, is
specified in the complaint or information, the corresponding
filing fees shall be paid by the offended party upon the
filing thereof in court.
   Except as otherwise provided in these Rules, no filing fees
shall be required for actual damages.
   No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case, but any
cause of action which could have been the subject thereof
may be litigated in a separate civil action.
   (b) The criminal action for violation of Batas Pambansa
Blg. 22 shall be deemed to include the corresponding civil
action. No reservation to file such civil action separately
shall be allowed.
   Upon filing of the aforesaid joint criminal and civil
actions, the offended party shall pay in full the filing fees
based on the amount of the check involved, which shall be
considered as the actual damages claimed. Where the
complaint or information also seeks to recover liquidated,
moral, nominal, temperate or exemplary damages, the
offended party shall pay additional filing fees based on the
amounts alleged therein. If the amounts are not so alleged
but any of these damages are subsequently awarded by the
court, the filing fees based on the amount awarded shall
constitute a first lien on the judgment.
   Where the civil action has been filed separately and trial
thereof has not yet commenced, it may be consolidated with
the criminal action upon application with the court trying
the latter case. If the application is granted, the trial of
both actions shall proceed in accordance with section 2 of
this Rule governing consolidation of the civil and criminal
actions. 
   Sec. 2. When separate civil action is suspended. – After
the criminal action has been commenced, the separate civil
action arising therefrom cannot be instituted until final
judgment has been entered in the criminal action. chan
robles virtual law library
   If the criminal action is filed after the said civil action
has already been instituted, the latter shall be suspended in
whatever state it may be found before judgment on the
merits. The suspension shall last until final judgment is
rendered in the criminal action. Nevertheless, before
judgment on the merits rendered in the civil action, the
same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
criminal action. In case of consolidation, the evidence
already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine
the witness presented by the offended party in the criminal
case and of the parties to present additional evidence. The
consolidated criminal and civil actions shall be tried and
decided jointly.
   During the pendency of the criminal action, the running
period of prescription of the civil action which cannot be
instituted separately or whose proceeding has been
suspended shall be tolled.
   The extinction of the penal action does not carry with it
extinction of the civil action. However, the civil action based
on delict shall be deemed extinguished if there is a finding
in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not
exist.  DOCTRINES
   Sec. 3. When civil action may proceed independently. – In
the cases provided in Articles 32, 33, 34 and 2176 of
the Civil Code of the Philippines, the independent civil
action may be brought by the offended party. It shall
proceed independently of the criminal action and shall
require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for
the same act or omission charged in the criminal action.  distinct and separate from the crime but so intimately
   Sec. 4. Effect of death on civil actions. – The death of the
accused after arraignment and during the pendency of the
criminal action shall extinguish the civil liability arising from
the delict. However, the independent civil action instituted
under section 3 of this Rule or which thereafter is instituted
to enforce liability arising from other sources of obligation
may be continued against the estate or legal representative
of the accused after proper substitution or against said
estate, as the case may be. The heirs of the accused may be
substituted for the deceased without requiring the
appointment of an executor or administrator and the court
may appoint a guardian ad litem for the minor heirs.
   The court shall forthwith order said legal representative
or representatives to appear and be substituted within a
period of thirty (30) days from notice.
   A final judgment entered in favor of the offended party
shall be enforced in the manner especially provided in these
rules for prosecuting claims against the estate of the
deceased.chan robles virtual law library
   If the accused dies before arraignment, the case shall be
dismissed without prejudice to any civil action the offended
party may file against the estate of the deceased.  subsisting at the time the second marriage is contracted. The
   Sec. 5. Judgment in civil action not a bar. – A final
judgment rendered in a civil action absolving the defendant
from civil liability is not a bar to a criminal action against
the defendant for the same act or omission subject of the
civil action.  under the law a marriage even one which is void or voidable,
XXX
ARTICLE 36
PREJUDICIAL QUESTIONS
Art. 36. Pre-judicial questions which must be decided
before any criminal prosecution may be instituted or
may proceed, shall be governed by rules of court
which the Supreme Court shall promulgate and which
shall not be in conflict with the provisions of this
Code.
1. PRECEDENCE
GR: Where both a civil and a criminal case arising
from he same facts are filed in court, the criminal
case takes precedence.
EXC: If there exist prejudicial questions which
should be resolved first before action could be taken
in a criminal case can be instituted simultaneously
such as that provided in Art 33 of NCC.
2. PREJUDICIAL QUESTION
-one that arises in a case, the resolution of which
is a logical antecedent of the issue involved therein,
and the cognizance of which pertainsto another
tribunal.
3. ELEMENTS OF PREJUDICIAL QUESTION (Sec 7 Rule
111, RoC)
a) The previously instituted civil action
involves an issue similar or intimately
related to the issue raised in the subsequent
criminal action, and
Engr. Ariel Mark Pilotin
b) The resolution of such issue determines
whether or not the criminal action may
proceed.
4. SUSPENSON BY REASON OF PREJUDICIAL
QUESTION (SEC 6)
- “A petition for suspension fo the criminal action
based upon the pendency of a prejudicial question in
a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed
in court for trial, the petition to suspend shall be filed
in the same criminal action at any time before the
prosecution rests.”
1. CHING VS CA
As defined, a prejudicial question is one that arises in a
case the resolution of which is a logical antecedent of the
issue involved therein, and the cognizance of which pertains
to another tribunal. The prejudicial question must be
determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in
another court or tribunal. It is a question based on a fact
connected with it that it determines the guilt or innocence
of the accused, and for it to suspend the criminal action, it
must appear not only that said case involves facts intimately
related to those upon which the criminal prosecution would
be based but also that in the resolution of the issue or issues
raised in the civil case, the guilt or innocence of the accused
would necessarily be determined. It comes into play
generally in a situation where a civil action and a criminal
action are both pending and there exists in the former an
issue which must be preemptively resolved before the
criminal action may proceed, because howsoever the issue
raised in the civil action is resolved would be determinative
juris et de jure of the guilt or innocence of the accused in
the criminal case.
2. TE VS CA
The pendency of annulment of marriage is not a
prejudicial question to criminal prosecution for bigamy. The
outcome of the civil case for annulment of marriage had no
bearing upon the determination of the innocence or guilt in
the criminal case for bigamy, because all that is required for
the charge of bigamy to prosper is that the first marriage be
prevailing rule is found in Article 40 of the Family Code,
which states that the absolute nullity of a previous marriage
may not be invoked for purposes of marriage unless there is a
final judgment declaring such previous marriage void. Thus,
shall be deemed valid until declared otherwise in a judicial
proceeding.
Annulment of marriage is likewise not a prejudicial
question to administrative proceedings. The concept of
prejudicial question involves a civil and a criminal case.
There is no prejudicial question where one case is
administrative and the other is civil. Furthermore, Section
32 ofthe Rules and Regulations Governing the Regulation and
Practice of Professionals of the PRC Board expressly provides
that the administrative proceedings before it shall not be
suspended notwithstanding the existence of a criminal
and/or civil case against the respondent involving the same
facts as the administrative case.
3. MERCADO VS. TAN
In the instant case, petitioner contracted a second
marriage although there was yet no judicial declaration of
nullity of his first marriage. In fact, he instituted the
Petition to have the first marriage declared void only after
complainant had filed a letter-complaint charging him with
bigamy. By contracting a second marriage while the first was
still subsisting, he committed the acts punishable under
Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of
the nullity of the first marriage was immaterial. To repeat,
the crime had already been consummated by then.
Moreover, his view effectively encourages delay in the
prosecution of bigamy cases; an accused could simply file a
petition to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the
criminal case. We cannot allow that.
4. MORIGO VS PEOPLE
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The present case is analogous to, but must be
distinguished from Mercado vs Tan. In the latter case, the
judicial declaration of nullity of the first marriage was
likewise obtained after the second marriage was already
celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is
necessary before a subsequent one can be legally
contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of
bigamy. This principle applies even if the earlier union is
characterized by statutes as "void."
It bears stressing though that in Mercado, the first
marriage was actually solemnized not just once, but twice:
first before a judge where a marriage certificate was duly
issued and then again six months later before a priest in
religious rites. Ostensibly, at least, the first marriage
appeared to have transpired, although later declared void
ab initio.
In the instant case, however, no marriage ceremony at all
was performed by a duly authorized solemnizing officer.
Petitioner and Lucia Barrete merely signed a marriage
contract on their own. The mere private act of signing a
marriage contract bears no semblance to a valid marriage
and thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might be held
liable for bigamy unless he first secures a judicial declaration
of nullity before he contracts a subsequent marriage.

5. SPS YU VS PCIB
No prejudicial question can arise from the existence of a
civil case for annulment of a certificate of sale and a petition
for the issuance of a writ of possession in a special
proceeding since the two cases are both civil in nature which
can proceed separately and take their own direction
independently of each other. A prejudicial question is “one
that arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance
of which pertains to another tribunal. It generally comes into
play in a situation where a civil action and a criminal action
are both pending and there exists in the former an issue that
must be preemptively resolved before the criminal action
may proceed because issue raised in civil action would be
determinative de jure of the guilt or innocence of the
accused in a criminal case”.
6. DONATO VS LUNA
A prejudicial question has been defined to be one which
arises in a case, the resolution of question is a logical
antecedent of the issue involved in said case, and the
cognizance of which pertains to another tribunal. It is
based on a fact distinct or separate from the crime but so
intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the
criminal action, it must appear not only in the said case
involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the
guilt or innocence of the accused would necessarily be
determined. The issue before the Juvenile and Domestic
Relation Court is not determinative of petitioner’s guilt or
innocence in the crime of bigamy. It was petitioner’s
second wife, who filed the complainant for annulment of
the second marriage on the ground that her consent was
obtained through deceit.
The rule on prejudicial question cannot be applied since
a case for annulment of marriage can only be considered as
a prejudicial question to the bigamy case against the
accused if it was proved that petitioner’s consent to such
marriage was obtained by means of duress violence and
intimidation in order to establish that his act in the second
marriage was involuntary one and as such cannot be the
basis of his conviction for the crime of bigamy.

Engr. Ariel Mark Pilotin 22

 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
BOOK I Art. 39. The following circumstances, among others,
PERSONS modify or limit capacity to act:
Title I. - CIVIL PERSONALITY -age,
-insanity,
CHAPTER 1 -imbecility,
GENERAL PROVISIONS -the state of being a deaf-mute,
-penalty,
ARTICLE 37 -prodigality,
JURIDICAL CAPACITY AND THE CAPACITY TO ACT -family relations,
Art. 37.  Juridical capacity, which is the fitness to be -alienage,
the subject of legal relations, is inherent in every -absence,
natural person and is lost only through death. -insolvency and
Capacity to act, which is the power to do acts with -trusteeship.
legal effect, is acquired and may be lost.  The consequences of these circumstances are
1. CIVIL PERSONALITY governed in this Code, other codes, the Rules of
-it is the aptitude of being the subject, active or Court, and in special laws. Capacity to act is not
passive, of rights and obligations limited on account of religious belief or political
opinion.
2. JURIDICAL CAPACITY A married woman, twenty-one years of age or
-is the fitness to be the subject of legal relations. over, is qualified for all acts of civil life, except in
-it is inherent in every natural person and is lost cases specified by law. 
only through the death 1. OBJECTIVE
-To make an overview of the situation that
3. CAPACITY TO ACT qualifies a person’s power to undertake acts which
-is the power to do acts with legal effect. It may can produce legal effects
be acquired and may be lost.
2. SIGNIFICANCE
- A one- day old child already has the juridical a) Art 38
capacity. He is fit to be the subject of legal -only restricts the capacity to act
relations. b) Art 39
- However, his capacity to act is restricted -broader in scope but it enumerates situations
because of his age. which merely modify the capacity to act.

4. TWO KINDS OF PERSONS 3. RESTRICTIONS ON CAPACITY TO ACT

a) Natural Persons The following are mere restrictions on capacity
-human beings created by God through the to act, and do not exempt the incapacitated person
intervention of parents; and from certain obligations, as when the latter arise from
his acts or from property relations, such as easements.
b) Juridical Persons [MII-DPC]
-those created by law (1) MINORITY;
(2) INSANITY OR IMBECILITY;
5. JURIDICAL CAPACITY vs CAPACITY TO ACT (3) the State of being DEAF-MUTE;
Juridical Capacity Capacity to Act (4) PRODIGALITY; and
As to nature (5) CIVIL INTERDICTION
-fitness to be the subject -power to do acts with
of legal relations legal effects 4. CIRCUMSTANCES THAT MODIFY OR LIMIT
As to status CAPACITY TO ACT
-passive -Active i. Age,
As to acquisition ii. Insanity,
-inherent -Merely acquired iii. Imbecility,
As to condition of the subject iv. The State of being deaf-mute,
v. Penalty,
-Static -Dynamic
vi. Prodigality,
As to effect of death
vii. Family Relations,
-Lost only through death -Lost through death and
viii. Alienage,
restricted by other cause
ix. Absence,
As to existence x. Insolvency, and
Can exist without xi. Trusteeship
capacity to act
-Capacity to act is not limited on account of religious
6. JURIDICAL CAPACITY IS ACQUIRED UPON BIRTH belief or political opinion.
a) Art 40
GR: Birth Determines personality 5. MARRIED WOMAN
EXC: Conceived child is considered born for all - Article 39 of the NCC provides that “a woman,
purposes that are favorable to it, PROVIDED it be born twenty-one years of age or over, is qualified for all
later with the conditions specified in Art 41. acts of Civil Life, EXCEPT in cases specified by law.”
-Under present laws, there is an attempt to
b) Art 742 maintain equality between men and women.
Donations made to conceived and unborn children may
be accepted by those persons who would legally CHAPTER 2
represent them if they were already born. NATURAL PERSONS

ARTICLE 38 & 39 ARTICLE 40 &41

MODIFICATION OR LIMITATION TO THE CAPACITY TO
ACT
Art. 38. Minority, insanity or imbecility, the state of
being a deaf-mute, prodigality and civil interdiction
are mere restrictions on capacity to act, and do not
exempt the incapacitated person from certain
obligations, as when the latter arise from his acts or
from property relations, such as easements.  Art. 41. For civil purposes, the fetus is considered
Engr. Ariel Mark Pilotin
COMMENCEMENT OF CIVIL PERSONALITY
Art. 40. Birth determines personality; but the
conceived child shall be considered born for all
purposes that are favorable to it, provided it be born
later with the conditions specified in the following
article. 
born if it is alive at the time it is completely delivered
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
from the mother's womb. However, if the fetus had an
intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four hours after
its complete delivery from the maternal womb. 
1. PERSONS
-may be natural and juridical. Juridical persons
include the State and its political subdivisions, private
corporations, cooperatives and partnership.
2. NATURAL PERSONS
-Birth determines civil personality. (Art 40)
EXCEPTION: PRESUMPTIVE PERSONALITY
A conceived child shall be considered born for all
purposes that are favorable to it PROVIDED it be born
alive.
CHARACTERISTICS OF PRESUMPTIVE PERSONALITY
(1) It is limited; and
(2) Provisional or conditional because the child
must be borne alive.
3. CHILD
-Donations to a child or given before birth is valid
provided it is born under the conditions provided
under Article 41 of the New Civil Code.
-The unborn child may also be designated
beneficiary in an insurance policy under the same
conditions.
4. GELUZ VS CA
The action for damages of a husband against an
abortionist may prosper with respect to his own
damage—Moral damages, etc.
The unborn child whose personality never existed
may not be entitled to damages for breach of his right
to life and dignity.
5.WHEN A CHILD IS CONSIDERED BORN
(a) FOR CIVIL PURPOSES, the fetus is considered
born when:
i. The fetus with an intra-uterine life of at
least 7 months,
ii. is completely delivered from the
mother’s womb alive
(b) However, if the fetus had an intra-uterine life
of less than 7 months—it is not deemed born if it dies
within 24 hours after its complete delivery from the
maternal womb.
ARTICLE 42
WHEN IS CIVIL PERSONALITY EXTINGUISHED
Art. 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of
the deceased is determined by law, by contract and
by will. 
Art. 43. If there is a doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other, shall prove the same; in the
absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights
from one to the other.  support from its progenitors, even if the child said is
1. EXTINGUISHMENT OF CIVIL PERSONALITY
-Civil personality extinguished by death
2. PRESUMPTIONS ON SURVIVORSHIP
-if there is doubt, as between two or more
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of
one prior to the other shall prove the same; in the
absence of proof, it is presume that they died at the
same time and there shall be no transmission of rights
from one to the other.
a) Presumed to have DIED at the Same time.
-Thus, the relatives shall be presumed to have
died at the same time if the following requirements
are present:
i. There is doubt as to who died first;
Engr. Ariel Mark Pilotin
ii. The parties are heirs of each other—they are
called to succeed each other; and
iii. There is no proof as to who died first.
b) Rule 131, Sec 3(jj) of the Rules of Court
applies if the persons involved are not heirs of each
other.
CHAPTER 3
JURIDICAL PERSONS
ARTICLE 44
JURIDICAL PERSONS
Art. 44. The following are juridical persons:
(1) The State and its political 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 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. 45. Juridical persons mentioned in Nos. 1 and 2 of the
preceding article are governed by the laws creating or
recognizing them.
Private corporations are regulated by laws of general
application on the subject.
Partnerships and associations for private interest or
purpose are governed by the provisions of this Code
concerning partnerships. 
Art. 46. Juridical persons may acquire and possess property
of all kinds, as well as incur obligations and bring civil or
criminal actions, in conformity with the laws and regulations
of their organization. 
Art. 47. Upon the dissolution of corporations, institutions and
other entities for public interest or purpose mentioned in No.
2 of Article 44, their property and other assets shall be
disposed of in pursuance of law or the charter creating them.
If nothing has been specified on this point, the property and
other assets shall be applied to similar purposes for the
benefit of the region, province, city or municipality which
during the existence of the institution derived the principal
benefits from the same. 
1. JURIDICAL PERSON
-a being of legal existence susceptible of rights
and obligations, or of being the subject of juridical
relations.
2. WHO ARE JURIDICAL PERSONS
(a) State and its political subdivisions (Public
Corporations)’
(b) Corporations for public interest (Quasi-public
corporations) – governed either by the Corporation
Code or their special charter passed by the
legislature; and
(3) Corporations, Partnerships and associations
for private interests.
CASES
1. QUIMIGUING V. ICAO
A conceived child, although as yet unborn, is given
provisional personality of its own for all purposes
favorable to it, as explicitly provided in Article 40 of the
Civil Code. The unborn child, therefore, has a right to
unborn, it may receive donations as provided in Article
742.
It may that Article 40 prescribing that “the conceived
child shall be considered born for all purposes that are
favorable to it,” adds further that the fetus be alive at
the time it is completely delivered from the mother’s
womb. This proviso, however, is not a condition
precedent to the right of the conceived child; for if it
were, the first part of Article 40 would become entirely
useless and ineffective.
2. GELUZ V. CA
A conceived child, in this case, has no provisional
personality under Article 40 of the Civil Code, because
that same article expressly limits such personality by
imposing the condition that the child should be
subsequently born alive. The circumstances in this case
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
disputes not that the child was dead when separated
from its mother’s womb.
Hence, no action for damages could be filed on its
behalf. If no action for damages could be instituted on
behalf of the unborn child on account of injuries it
received, no such right of action could derivatively
accrue to its parents or heirs.
3. LIMJUCO VS ESTATE OF PEDRO FRAGRANTE
Within the Philosophy of the present legal system, the
underlying reason for the legal fiction by which, for certain
purposes, the estate of the deceased person is considered
a "person" is the avoidance of injustice or prejudice
resulting from the impossibility of exercising such legal
rights and fulfilling such legal obligations of the decedent
as survived after his death unless the fiction is indulged.
It seems reasonable that the estate of a decedent
should be regarded as an artificial person. it is the creation
of law for the purpose of enabling a disposition of the
assets to be properly made

4. DUMLAO VS QUALITY PLASTICS

“He was not, and he could not have been, validly served
with summons. He had no more civil personality. His
juridical capacity, which is the fitness to be the subject of
legal relations, was lost through death.”

Engr. Ariel Mark Pilotin 25

 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
BAR QUESTIONS
TOPIC: HUMAN RELATIONS
1. Rosa was leasing an apartment in the city.
Because of the Rent Control Law, her landlord could
not increase the rental as much as he wanted to,
nor terminate her lease as long as she was paying
her rent. In order to force her to leave the
premises, the landlord stopped making repairs on
the apartment, and caused the water and electricity
services to be disconnected. The difficulty of living
without electricity and running water resulted in
Rosa's suffering a nervous breakdown. She sued the
landlord for actual and moral damages. Will the
action prosper? Explain. (1996 Bar)
ANS
Yes, based on quasi-delict under the human
relations provisions of the New Civil Code (Arts. 19, 20
and 21) because the act committed by the lessor is
contrary to morals. Moral damages are recoverable
under Art. 2219(10) in relation to Art. 21. Although the
action is based on quasi-delict and not on contract,
actual damages may be recovered if the lessee is able
to prove the losses and expenses she suffered.
TOPIC: CIVIL PERSONALITY
1. Ricky donated P 1 Million to the unborn child of
his pregnant girlfriend, which she accepted. After
six (6) months of pregnancy, the fetus was born and
baptized as Angela. However, Angela died 20 hours
after birth.
Ricky sought to recover the P 1 Million. Is Ricky
entitled to recover? Explain. (2012 BAR)
ANS.
Yes, Ricky is entitled to recover the P1,000,000.00.
The NCC considers a fetus is considered a person for
purposes favorable to it provided it is born later in
accordance with the provision of the NCC. While the
donation is favorable to the fetus, the donation did
not take effect because the fetus was not born in
accordance with the NCC.
To be considered born, the fetus that had an
intrauterine life of less than seven (7) months should
live for 24 hours from its complete delivery from the
mother’s womb. Since Angela had an intrauterine life
of less than seven (7) months but did not live for 24
hours, she was not considered born and, therefore, did
not become a person(Art. 41). Not being a person, she
has no juridical capacity to be a donee, hence, the
donation to her did not take effect. The donation not
being effective, the amount donated may be
recovered. To retain it will be unjust enrichment.
2. Isidro and Irma, Filipinos, both 18 years of age,
were passengers of Flight No. 317 of Oriental
Airlines. The plane they boarded was of Philippine
registry. While en route from Manila to Greece some
passengers hijacked the plane, held the chief pilot
hostage at the cockpit and ordered him to fly
instead to Libya. During the hijacking Isidro suffered
a heart attack and was on the verge of death. Since
Irma was already eight months pregnant by Isidro,
she pleaded to the hijackers to allow the assistant
pilot to solemnize her marriage with Isidro. Soon
after the marriage, Isidro expired. As the plane
landed in Libya Irma gave birth. However, the baby
died a few minutes after complete delivery. Back in
the Philippines, Irma Immediately filed a claim for
inheritance. The parents of Isidro opposed her claim
contending that the marriage between her and
Isidro was void ab initio on the following grounds: (a)
they had not given their consent to the marriage of
their son; (b) there was no marriage license; (c) the
solemnizing officer had no authority to perform the
marriage; and, (d) the solemnizing officer did not
file an affidavit of marriage with the proper civil
registrar. Does Irma have any successional rights at
all? Discuss fully. (1995, 1999 Bar)
Engr. Ariel Mark Pilotin
ANS.
Irma succeeded to the estate of Isidro as his
surviving spouse to the estate of her legitimate child.
When Isidro died, he was succeeded by his surviving
wife Irma, and his legitimate unborn child.They
divided the estate equally between them, the child
excluding the parents of Isidro. An unborn child is
considered born for all purposes favorable to it
provided it is born later. The child was considered
born because, having an intra-uterine life of more
than seven months, it lived for a few minutes after its
complete delivery. It was legitimate because it was
born within the valid marriage of the parents.
Succession is favorable to it. When the child died,
Irma inherited the share of the child. However, the
share of the child in the hands of Irma is subject to
reserva troncal for the benefit of the relatives of the
child within the third degree of consanguinity and who
belong to the line of Isidro.
3. Jaime, who is 65, and his son, Willy, who is 25,
died in a plane crash. There is no proof as to who
died first. Jaime’s only surviving heir is his wife,
Julia, who is also Willy’s mother. Willy’s surviving
heirs are his mother, Julia and his wife, Wilma.
(a) In the settlement of Jaime’s estate,
can Wilma successfully claim that her late husband,
Willy had a hereditary share since he was much
younger than his father and, therefore, should be
presumed to have survived longer?
(b) Suppose Jaime had a life insurance
policy with his wife, Julia, and his son, Willy, as the
beneficiaries. Can Wilma successfully claim that
one-half of the proceeds should belong to Willy’s
estate? (1998 Bar)
ANS.
(a) No, Wilma cannot successfully claim
that Willy had a hereditary share in his father’s
estate. Under Art. 43, Civil Code, two persons “who
are called to succeed each other” are presumed to
have died at the same time, in the absence of proof as
to which of them died first. This presumption of
simultaneous death applies in cases involving the
question of succession as between the two who died,
who in this case are mutual heirs, being father and
son.
(b) Yes, Wilma can invoke the presumption
of survivorship and claim that one-half of the
proceeds should belong to Willy’s estate, under Sec. 3
(jj) par. 5 Rule 131, Rules of Court, as the dispute
does not involve succession. Under this presumption,
the person between the ages of 15 and 60 years is
deemed to have survived one whose age was over 60
at the time of their deaths. The estate of Willy
endowed with juridical personality stands in place and
stead of Willy, as beneficiary.
4. Elated that her sister who had been married for
five years was pregnant for the first time, Alma
donated P100,000.00 to the unborn child.
Unfortunately, the baby died one hour after
delivery. May Alma recover the P100, 000.00 that
she had donated to said baby before it was born
considering that the baby died? Stated otherwise, is
the donation valid and binding? Explain. (1999 Bar)
ANS
The donation is valid and binding, being an act
favorable to the unborn child, but only if the baby had
an intra uterine life of not less than seven months and
provided there was due acceptance of the donation by
the proper person representing said child. If the child
had less than seven months of intra-uterine life, it is
not deemed born since it died less than 24 hours
following its delivery, in which case the donation
never became effective since the donee never became
a person, birth being determinative of personality.
5. Mr. and Mrs. Cruz, who are childless, met with a
serious motor vehicle accident with Mr. Cruz at the
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
wheel and Mrs. Cruz seated beside him, resulting in
the instant death of Mr. Cruz. Mrs. Cruz was still
alive when help came but she also died on the way
to the hospital. The couple acquired properties
worth One Million (P1,000,000.00) Pesos during
their marriage, which are being claimed by the
parents of both spouses in equal shares.
(a) Is the claim of both sets of parents valid and
why?
(b) Suppose in the preceding question, both Mr.
And Mrs. Cruz were already dead when help came,
so that nobody could say who died ahead of the
other, would your answer be the same to the
question as to who are entitled to the properties of
the deceased couple? (1999 Bar)
ANS:
(a) No, the claim of both parents is not valid.
When Mr. Cruz died, he was succeeded by his wife and
his parents as his intestate heirs who will share his
estate equally. His estate was 0.5 Million pesos which
is his half share in the absolute community amounting
to 1 Million Pesos. His wife, will, therefore, inherit
O.25 Million Pesos and his parents will inherit 0.25
Million Pesos.
(b) When Mrs. Cruz died, she was succeeded by
her parents as her intestate heirs. They will inherit all
of her estate consisting of her 0.5 Million half share in
the absolute community and her 0.25 Million
inheritance from her husband, or a total of 0.750
Million Pesos.
In sum, the parents of Mr. Cruz will inherit
250,000 Pesos while the parents of Mrs. Cruz will
inherit 750,000 Pesos.
This being a case of succession, in the absence of
proof as to the time of death of each of the spouses, it
is presumed they
6. Mr. Luna died, leaving an estate of Ten Million
(P10,000,000.00) Pesos. His widow gave birth to a
child four months after Mr, Luna's death, but the
child died five hours after birth. Two days after the
child's death, the widow of Mr. Luna also died
because she had suffered from difficult childbirth.
The estate of Mr. Luna is now being claimed by his
parents, and the parents of his widow. Who is
entitled to Mr. Luna'a estate and why? (1999 Bar)
ANS.
Half of the estate of Mr. Luna will go to the parents
of Mrs. Luna as their inheritance from Mrs. Luna, while
the other half will be inherited by the parents of Mr.
Luna as the reservatarios of the reserved property
inherited by Mrs. Luna from her child.
When Mr. Luna died, his heirs were his wife and
the unborn child. The unborn child inherited because
the inheritance was favorable to it and it was born
alive later though it lived only for five hours. Mrs. Luna
inherited half of the 10 Million estate while the unborn
child inherited the other half. When the child died, it
was survived by its mother, Mrs. Luna. As the only
heir, Mrs. Luna inherited, by operation of law, the
estate of the child consisting of its 5 Million
inheritance from Mr. Luna. In the hands of Mrs. Luna,
what she inherited from her child was subject to
reserva troncal for the benefit of the relatives of the
child within the third degree of consanguinity and who
belong to the family of Mr. Luna, the line where the
property came from.
When Mrs. Luna died, she was survived by her
parents as her only heirs. Her parents will inherit her
estate consisting of the 5 Million she inherited from
Mr. Luna. The other 5 Million she inherited from her
child will be delivered to the parents of Mr. Luna as
beneficiaries of the reserved property.
In sum, 5 Million Pesos of Mr. Luna's estate will
go to the parents of Mrs. Luna, while the other 5
Million Pesos will go to the parents of Mr. Luna as
reservatarios.
7. Cristy and her late husband Luis had two
children, Rose and Patrick. One summer, her
Engr. Ariel Mark Pilotin
mother-in-law, aged 70, took the two children,
then aged 10 and 12, with her on a boat trip to
Cebu. Unfortunately, the vessel sank en route, and
the bodies of the three were never found. None of
the survivors ever saw them on the water. On the
settlement of her mother-in-law's estate, Cristy
files a claim for a share of her estate on the ground
that the same was inherited by her children from
their grandmother in representation of their father,
and she inherited the same from them. Will her
action prosper? (2000 BAR)
ANS.
No, her action will not prosper. Since there was no
proof as to who died first, all the three are deemed to
have died at the same time and there was no
transmission of rights from one to another, applying
Art. 43 of the NCC.
8. If a pregnant woman passenger of a bus were to
suffer an abortion following a vehicular accident
due to the gross negligence of the bus driver, may
she and her husband claim damages from the bus
company for the death of their unborn child?
Explain. (2003, 2014 Bar)
ANS. No, the spouses cannot recover actual damages
in the form of indemnity for the loss of life of the
unborn child. This is because the unborn child is not
yet considered a person and the law allows indemnity
only for loss of life of person.The mother, however
may recover damages for the bodily injury she
suffered from the loss of the fetus which is considered
part of her internal organ. The parents may also
recover damages for injuries that are inflicted
directly upon them, e.g., moral damages for mental
anguish that attended the loss of the unborn child.
Since there is gross negligence, exemplary damages
can also be recovered (Geluz v. CA, G.R. No. L-16439,
July 20, 1961).
9. At age 18, Marian found out that she was
pregnant. She insured her own life and named her
unborn child as her sole beneficiary. When she was
already due to give birth, she and her boyfriend
Pietro, the father of her unborn child, were
kidnapped in a resort in Bataan where they were
vacationing. The military gave chase and after one
week, they were found in an abandoned hut in
Cavite. Marian and Pietro were hacked with bolos.
Marian and the baby were both found dead, with
the baby's umbilical cord already cut. Pietro
survived.
(a) Can Marian's baby be the beneficiary of the
insurance taken on the life of the mother? (1999,
2012 Bar)
(b) Between Marian and the baby, who is
presumed to have died ahead?
(c) Will Pietro, as surviving biological father of
the baby, be entitled to claim the proceeds of the
life insurance on the life of Marian?(2008 Bar)
ANS:
(a) Yes, the baby can be the beneficiary of the life
insurance of Marian. Art. 40 of the FC provides that
"birth determines personality; but the conceived child
shall be considered born for all purposes that are
favorable to it, provided that it be born later with the
conditions specified in Art. 41. Article 41 states that
"for civil purposes, the fetus shall be considered born
if it is alive at the time it is completely delivered
from the mother's womb. However, if the fetus had an
intra-uterine life of less than seven months, it is not
deemed born if it dies within twenty-four (24) hours
after its complete delivery from the maternal womb.
The act of naming the unborn child as sole beneficiary
in the insurance is favorable to the conceived child
and therefore the fetus acquires presumptive or
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
provisional personality. However, said presumptive was inherited in equal shares by his legal heirs,
personality only becomes conclusive if the child is namely, his spouse and children. Therefore, Roberto’s
born alive. The child need not survive for twenty-four children and his spouse are entitled to Roberto’s one-
(24) hours as required under Art. 41 of the Code third share in the insurance proceeds.
because "Marian was already due to give birth,"
indicating that the child was more than seven months
old.
(b) If the baby was not alive when completely
delivered from the mother’s womb, it was not born as
a person, then the question of who between two
persons survived will not be an issue. Since the baby
had an intra-uterine life of more than 7 months, it
would be considered born if it was alive, at the time
of its complete delivery from the mother’s womb. We
can gather from the facts that the baby was
completely delivered. But whether or not it was alive
has to be proven by evidence.
If the baby was alive when completely delivered
from the mother’s womb, then it was born as a person
and the question of who survived as between the baby
and the mother shall be resolved by the provisions of
the Rules of Court on survivorship. This is because the
question has nothing to do with succession. Obviously,
the resolution of the question is needed just for the
implementation of an insurance contract. Under Rule
13, Sec. 3, (jj), (5) as between the baby who was
under 15 years old and Marian who was 18 years old,
Marian is presumed to have survived.
In both cases, therefore, the baby never acquired
any right under the insurance policy. The proceeds of
the insurance will then go to the estate of Marian.

(c) Since the baby did not acquire any right

under the insurance contract, there is nothing for
Pietro to inherit.

10. Dr. Lopez, a 70-year old widower, and his son

Roberto both died in a fire that gutted their home
while they were sleeping in their air-conditioned
rooms. Roberto’s wife, Marilyn, and their two
children were spared because they were in the
province at the time. Dr. Lopez left an estate worth
P20M and a life insurance policy in the amount of
P1M with his three children --- one of whom is
Roberto --- as beneficiaries. Marilyn is now claiming
for herself and her children her husband’s share in
the estate left by Dr. Lopez, and her husband’s
share in the proceeds of Dr. Lopez’s life insurance
policy. Rule on the validity of Marilyn’s claims with
reasons. (1999, 2009 Bar)

ANS.
As to the estate of Dr. Lopez:
Marilyn is not entitled to a share in the estate of Dr.
Lopez. For purposes of succession, Dr. Lopez and his
son Roberto are presumed to have died at the same
time, there being no evidence to prove otherwise, and
there shall be no transmission of rights from one to the
other (Article 43). Hence, Roberto inherited nothing
from his father that Marilyn would in turn inherit from
Roberto. The children of Roberto, however, will
succeed their grandfather, Dr. Lopez, in
representation of their father Roberto and together
will receive 1/3 of the estate of Dr. Lopez since their
father Roberto was one of the three children of Dr.
Lopez. Marilyn cannot represent her husband Roberto
because the right is not given by law to a surviving
spouse.

As to the proceeds of the insurance on the life of

Dr. Lopez:
Since succession is not involved as regards the
insurance contract, the provisions of the Rules of
Court on survivorship shall apply. Under the Rules, Dr.
Lopez, who was 70 years old, is presumed to have died
ahead of Roberto, who is presumably between the
ages of 15 and 60. Having survived the insured,
Roberto’s right as a beneficiary became vested upon
the death of Dr. Lopez. When Roberto died after Dr.
Lopez, his right to receive the insurance proceeds
became part of his hereditary estate, which in turn
Engr. Ariel Mark Pilotin 28
 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
Title II. - CITIZENSHIP AND DOMICILE
Art. 48. The following are citizens of the Philippines:
(1) Those who were citizens of the Philippines at
the time of the adoption of the Constitution of the
Philippines;
(2) Those born in the Philippines of foreign parents
who, before the adoption of said Constitution, had
been elected to public office in the Philippines;
(3) Those whose fathers are citizens of the
Philippines;
(4) Those whose mothers are citizens of the
Philippines and, upon reaching the age of majority,
elect Philippine citizenship;
(5) Those who are naturalized in accordance with
law.
Art. 49. Naturalization and the loss and reacquisition
of citizenship of the Philippines are governed by
special laws.  iii. Intention to abandon the old domicile
Art. 50. For the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural
persons is the place of their habitual residence.  RESIDENT
Art. 51. When the law creating or recognizing them,
or any other provision does not fix the domicile of
juridical persons, the same shall be understood to be
the place where their legal representation is
established or where they exercise their principal
functions.   As to number
1. DOMICILE
-For the exercise of civil rights and the
fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual
residence
(a) JURIDICAL PERSONS
-Its domicile is its Principal office appearing
in its Articles of Incorporation
-When the law creating or recognizing them,
or any other provision does not fix the domicile of
juridical persons, the same shall be understood to be
the place where their legal representation is
established or where they exercise their principal
functions.
(b) CITIZENSHIP
-the status of being a citizen, or of owing
allegiance to a statute for the privilege of being
under its protection.
-Art IV of the 1987 Constitution.
-Naturalization and loss and reacquisition of the
PHs are governed by special laws including
Commonwealth Act Nos 63 and 473 , PD No. 725, and
R.A Nos 530, 8171 and 9139.
MODES OF ACQUISITION
(a) JUS SANGUINIS
-citizenship by blood, wherever he may be born;
(b) JUS SOLI
-citizenship is determined by place of birth; and
(c) NATURALIZATION
-artificial means (Judicial or administrative) by
which a state adopts an alien and gives him imprint
and endowment of a citizen of that country.
2. ELEMENTS OF DOMICILE
i. The person must be physically present in a
fixed place;
ii. Animus Manendi- there must be intent to
remain there permanently
3. KINDS OF DOMICILE
(1) DOMICILE OF ORIGIN
-assigned by law to a person at birth
(2) DOMICILE OF CHOICE
-the place chosen by a person who does not
suffer any legal disability, and
Engr. Ariel Mark Pilotin
*Three Basic rules on Domicile of Choice
i. a man must have residence or domicile
somewhere;
ii. Domicile, once established, remains until a
new one is validly acquired; and
iii. A man can have but one residence or domicile
at any given time.
(3) CONSTRUCTIVE DOMICILE OR DOMICILE BY
OPERATION OF LAW (Domicilium Necesarium)
-assigned by law to a child who is suffering from
legal disability at the time of his birth or also in one of
change of domicile arising from marriage.
*Requirements for the Acquisition of New Domicile
i. Bodily presence in a new locality – actual
removal or actual change of domicile;
ii. intention to remain therein (Animus
Manendi);
(Animus non revertendi)
4. DOMICILE VS RESIDNENCE
DOMICILE
As to definition
-indicates a place of -denotes a fixed
abode, whether permanent residence,
permanent or temporary which when absent, one
has the intention of
returning
There can be several There can only be one
places of residences place of domicile
As to intention to remain
No length of residence It is residence coupled
without intention of with intention to remain
remaining will constitute for an unlimited time
domicile
5. DOMICILE OF JURIDICAL ENTITY
(a) Get the domicile provided for in the law
creating or recognizing them or in their articles of
agreement;
(b) If not provided for, get the place:
i. Where their legal representation is
established;
ii. Or where they exercise their principal
functions.
CASES
1. MO YA LIM YAO VS CID
Under Section 15 of Commonwealth Act 473, an alien
woman marrying a Filipino, native born or naturalized,
becomes ipso facto a Filipina provided she is not
disqualified to be a citizen of the Philippines under Section
4 of the same law. Likewise, an alien woman married to an
alien who is subsequently naturalized here follows the
Philippine citizenship of her husband the moment he takes
his oath as Filipino citizen, provided that she does not
suffer from any of the disqualifications under said Section
4.
2. FRIVALDO VS COMELEC
Under Philippine law, citizenship may be
reacquired by direct act of Congress, by
naturalization or by repatriation.
3. ROMUALDEZ-MARCOS VS COMELEC
Residence is used synonymously with domicile for
election purposes. The essential distinction between
residence and domicile in law is that if his intent is to
leave as soon as his purpose is established, it is
residence. If a person's intent is to remain, it becomes
his domicile. The law provides that: (1) a minor follows
the domicile of his parents. As domicile, once acquired
is retained until a new one is gained; (2) Domicile of
origin is not easily lost. To successfully effect a change
of domicile, one must demonstrate:
An actual removal or an actual change of domicile;
(b) A bona fide intention of abandoning the former place
of residence and establishing a new one; and (c) Acts
which correspond with the purpose. In the absence of
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 CIVIL LAW REVIEW (PERSONS AND FAMILY RELATIONS LAW)
clear and positive proof based on these criteria, the
residence of origin should be deemed to continue; (3) a
wife does not automatically gain the husband’s domicile
because the term “residence” in Civil Law does not mean
the same thing in Political Law. Therefore, if a person
retains his domicile of origin for purposes of the residence
requirement, the 1-year period is irrelevant because
wherever he is, he is a resident of his domicile of origin.
Second, if a person reestablishes a previously abandoned
domicile, the 1 year requirement must be satisfied.
 

Engr. Ariel Mark Pilotin 30