CIVIL LAW

- The study of the civil law is anchored on the Civil Code of the Philippines, which has 2270 articles.
o 4 parts:
 Book 1 – Law on Persons and Family Relations
 Book 2 – Law on Property
 Book 3 – Modes of Acquisition of Property
 includes wills and succession
 Book 4 – Law on Obligations of Contracts
 a. basic rules on obligations and contract
 b. specific contracts/special contracts
o SPALDIGD
1. sales
2. partnership
3. agency
4. loan (mutuum and comodatum)
5. guaranty
6. deposit
HISTORY
- The present civil code of the Philippines took effect on Aug 30, 1950.
- We had a civil code prior to that which is Civil Code of Spain of 1889. And before 1889, we had some
civil legislations emanating from the Spanish Cortez which contains some supplemental laws that
were made to apply in the Philippines as part of our civil laws.
- After the Spaniards were driven out of the country in 1898 by the Americans, the civil code of Spain
still continued to apply to us because in political law, if there are invading forces, they will only
change laws that are political in nature like the structure and powers of government. The Americans
allowed the Civil Code of Spain to continue governing us.
- After the WWII, the Americans gave us independence. We elected our President Roxas. One of his
official acts was to call for a drafting of a new Civil Code of the Philippines, as a result of being an
independent country. He issued EO 48, which calls for the creation of Civil Code Revision Committee,
composed of 5 persons who were recognized as experts in civil law. They finished the draft in 2 years
and they submitted it to congress to be converted to a law.
- Congress took around 3 years to finish reviewing it and approved it into law in June of 1949.
- Because the NCC provides that it should take effect within 1 tear from its publication, so it took effect
in Aug 30, 1950.
- RA 386, OW known as Civil Code of the Philippines. The present NCC is composed of 2270 articles.
Most of the provisions were copied from the old Civil Code of Spain. Other provisions were inserted
by the drafters to include decisions of SC, foreign laws, and decision of foreign courts.

CHAPTER I - EFFECT AND APPLICATION OF LAWS

ART 1
Article 1. This Act shall be known as the "Civil Code of the Philippines."
- ACT 386

ART 2 - 18
- This discussed the basic principles or rules in the applications and effectivity of the law.
- That is why it is entitled EFFECTS AND APPLICATION OF LAW.
- IOW, how do we apply this law? What are the rules in applying this law?
- ART 2 - EFFECTIVITY
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided.
This Code shall take effect one year after such publication. (1a)
- This refers to the effectivity of the law.
- This refers to two kinds of law:
o 1. statutes – laws passed by congress
 o 2. civil code
- STATUTES - EFFECTIVITY
o GR: 15 days after publication (silent)
o EXPT: OW provided (law itself provides for effectivity)
 Does it mean that it has to be published to become effective?
 We have to make a distinction.
 If the law is silent, we have to publish it first. so that the 15 day rule can be applied.
- MUST A LAW BE PUBLISHED BEFORE IT TAKES EFFECT?
o YES.
o Case: Askai vs Cosalan
o Case: Balbuena vs Secretary of Education
 SC made a distinction when a law must be published first before it takes effect. And
in these two cases, it said, a law must be published first before it will take effect only
when the law provides for a punishment.
 When the law is punitive in character, it must be published first before it takes
effect.
 Therefore if it is not punitive in nature, there is no need for publication.
 This was the rule before.
o Case: Tanada vs Tuvera
 This case was filed after Marcos was driven out. It was discovered that during
martial laws, there were many PD’s and Presidential Proclamations that did not
have publications. At the time, they were considered laws because he abolished the
congress so that he could exercise both legislative and executive powers.
 So a group of lawyers filed a case in SC questioning the validity of these laws.
 It was argued by the lawyers of Marcos that not all laws need publication, citing old
jurisprudence.
 SC said that we need not follow the old cases. Every law must be published whether
it is punitive or not.
- Publication of a law before it takes effect is essential requirement of DUE PROCESS.
o No law shall take effect without prior publication. People must be informed of the law
whether it is punitive or not.
- “UNLESS OTHERWISE PROVIDED”
o Simply means the law provides for a different period of effectivity after publication. (longer
or shorter)
o So if the law does not provide for an effectivity clause, that is when we apply art 2 , 15 day
rule. GR, have it published first, then count 15 days after.
o In fact if the law provides that it shall take effect immediately, then it still should be
published first, after that, it will be immediately effective.
- PUBLICATION IN OFFICIAL GAZETTE – EO 200
o Official Gazette is a limited publication. That’s why during the time o Cory, she issued EO 200
which provides that laws shall be published in the official gazette or any newspaper of
general circulation.
- “ALL LAWS” - SCOPE
o Case: Tanada vs Tuvera
 All laws is to include all administrative rules and regulations that are designed to
implement the law. So if the department of the government is provided the power to
make the details and implementing rules of a particular law, it will be considered a
law. It has the force and effect of the law and therefore t mst be published before it
takes effect.
- “ALL LAWS” - EXCLUDED
o Case: Tanada vs Tuvera
 It does not however include those rules and regulations of an agency of the
government that is intended only for the use of the personnel in the agency, or those
 that regulate the administrative agency personnel and not affect the public in
general.
 Neither are the so called LETTERS OF INSTRUCTIONS issued by administrative
superiors concerning their duties.
- “THIS CODE SHALL TAKE EFFECT ONE YEAR AFTER ITS PUBLICATION”
o After RA 386 was approved by congress, it was immediately submitted o the printing office
for publication in official gazette. It came out in June 1949 issue of OG but for whatever
reason, it did not come out of circulation until Aug 1949.
o Because of that, SC said, we start counting from August, not June.
o Case: Lara vs Del Rosario
 There is the question on the effectivity of NCC took effect.
 There is an obiter dictum saying that since the OG was released for circulation on in
Aug, 1949, then it shall be considered to have taken effect only in Aug 30, 1950.
 This ruling was criticized because SC was accused of judicial legislation. Because the
law is very clear. The one year period is to be counted 1 year from publication, not
circulation.
 But SC said, what is the use of publishing if it is not made known to the public.
 IOW the term publication was given an expanded meaning of our SC. Publication
here should also include the act of making it known to the public. Publication covers
circulation.

BASIC RULES IN THE APPLICATION OF LAW

ART 3 – IGNIRANTIA LEGIS NON EXCUSAT
Art. 3. Ignorance of the law excuses no one from compliance therewith. (2)
Almost every country adopts this principle.
- BASIS
o The reason for this principle is based on exigency and necessity. OW anyone who is
prosecuted for violation of a law uses ignorance as a defense. It will cause chaos and
confusion and disorder of society.
- SCOPE
o The rule where we are supposed to know the laws refer only to DOMESTIC LAWS, not the
laws of other countries.
- IGNORANCE OF FOREIGN LAWS
o Ignorance of a foreign law is only considered ignorance of a fact. Not ignorance of a foreign
law. And if you are ignorant of a fact, that may be excused.
- DOCTRINE OF PROCESSUAL PRESUMPTION
o So if you claim that there is a foreign law, you have to established it as a fact. If you want our
court to apply a particular law of a foreign country to a case, you have to prove to the court
that that is the law of the foreign country.
o OW, our court will presume that our law is the same as their laws. So we apply our own laws.
This is what we call DOCTRINE OF PROCESSUAL PRESUMPTION.
o Case: Wongweyu vs Vivo
 This is a case of a Chinese national who got married here in the Philippines.
Somebody filed a case of bigamy in Philippines because according to that somebody,
he was already married in the Philippines.
 He claims that the marriage in China was celebrated by a village elder, as allowed by
law. But during the trial of the case, the complainant was not able to prove the law of
China, that allows a marriage be solemnized by a village elder. So we apply
Philippine law.
 In the Philippines, a village elder cannot be solemnized marriage. So in the
Philippines, his first marriage was not considered a valid marriage. And so he cannot
be held liable for bigamy.
ART 4 – PROSPECTIVE APPLICATION
Art. 4. Laws shall have no retroactive effect, unless the contrary is provided.
- GR: law shall be prospective.
- EXPT: provide for retroactive effect.
- PROSPECTIVE
o It means that when a law is passed today, it should only be applied to those acts committed
after the law was passed.
o It should not be applied to those that have taken effect in the past.
- INSTANCES WHEN A LAW MAY BE APPLIED RETROACTIVELY
o 1. law itself provides for retroactivity
o 2. law is curative or remedial in nature
 if the purpose of the law is to cure the defect of an existing law
o 3. law is procedural in nature
o 4. law is penal in character and favorable to the accused
 penal, means it is a criminal law and provides for a penalty of a criminal act
o 5. law creates a substantive right for the first time
 unless vested rights are impaired.
o 4. LAW IS PENAL IN CHARACTER AND FAVORABLE TO THE ACCUSED

 EX POST FACTO LAW

 It is in the constitution that no ex post facto law or bill of attainder shall be
enacted.
 What is an ex post facto law?
o It is a law which:
o a. makes an act punishable when it was not punishable at the time
it was committed.
o b. increases the penalty of an act when it is not that high at the time
it is committed
 The law can be declared unconstitutional for violating the prohibition
against ex post facto law.
 An ex post facto law is a criminal law; it is necessarily a penal law, that is
given a retroactive effect and is disadvantageous to the accused.
 OPPOSITE EX POST FACTO LAW
 The opposite of ex post facto law is applied. So when a criminal law is
advantageous to the accused, it can be applied retroactively. PVDD the
accused is NOT A HABIUAL

 DELINQUENT.
 Case: Robin Padilla Law
o He was convicted for illegal possession of firearms. He was already
serving his sentence in jail. While being there, a new law was
passed by congress, which reduced the penalty of illegal possession
of firearms which was more than 10 years in prison to less than 6
years.
o Since he was already able to serve his sentence, he was released. It
was applied to him because a criminal law can be given retroactive
effect if it is favorable to accused.
 Case: People vs Patalin, 1999
o Death penalty. The 1987 Constitution removed the death penalty
law.
o SC said, those who are already convicted of a capital offense where
the penalty is death will be benefited by this law.
o So those who are serving sentence and about to be executed in
Bilibid will be saved by this law, even if they committed heinous
crime.
 o Later on, the death penalty was restored by congress in 1994. Will
it apply to those who have committed before 1994? Can death
penalty be imposed on those who are convicted guilty of rape?
o SC says no, because that will make a law an ex post facto
o law.
o The restoration of the death penalty law shall only be applied
prospectively.
o 5. LAW CREATES A SUBSTANTIVE RIGHT FOR THE FIRST TIME PVDD IT WILL NOT IMPAIR
VESTED RIGHTS
 BTW giving retroactive effect to a law applies only to civil law, not criminal law.
Why? Because if you give retroactive effect to a criminal law and it is
disadvantageous to the accused, it is unconstitutional. It is ex post facto law.
 A law can be given retroactive effect if the law so provides.
 However, the rule on retroactivity will not apply it it will result to impairment of
vested right of a person.
 Case: Bernabe vs Canejo, 2002
 This involves a fiscal on Quezon City who has an affair with his secretary.
They had an illegitimate child in 1982, before the Family Code took effect.
When he dies, the secretary showed up to get the share of the child on the
estate of the deceased. This happened in 1988, therefore the Family Code
was already effective.
 In the Family Code, an IC can only prove his filiations during the lifetime of
the father. So the wife said that he cannot refute his claim because the fiscal
was already dead.
 Before, Family Code, Aug 3, 1988, the applicable law was NCC, which allows
an IC to prove within 4 years, his legitimate filiations after the death of the
father, PVDD that the child was sill a minor.
 ISSUE: In this case, can he still prove that he is an IC now that there is
already the Family Code?
 SC: YES. What matters is that the child was born before the FC and the law
that applies to him was the old law of the NCC. Under the NCC, he may
prove 4 years after his father’s death his filiations. And that is a vested right
he acquires under the old law.
 So when the new law (FC) took effect, we cannot apply that law (an IC can
only prove his filiations during the lifetime of the father) even if the FC itself
says that it will be given retroactive effect.
 SC said we cannot give retroactive effect because it will impair the vested
right of the child. Even if the law provides for retroactive effect, but it will
impair your vested right under the old law, the new law will not be given
retroactive effect.

ART 5 – RULE ON MANDATORY AND 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. (4a)
- GR: acts in violation of the mandatory or prohibitory law shall be void
- EXPT: law itself authorizes validity

- GENERAL RULE
o When your action is in violation of an existing mandatory or prohibitory law, that act will be
declared void. It will not produce any legal effect.
 MANDATORY LAWS are laws that dictate that you are supposed to do a particular
act.
 Laws that prohibits you from doing a particular act is a PROHIBITORY LAW.
  Example of a mandatory laws:
 Sale of conjugal property; husband and wife must sign.
 Make of will; must be in writing.
 Example of a prohibitory laws:
 Making of a joint last will and testament.
 Making of donation to certain persons.
- EXCEPTION TO THE RULE
o There are instances where even if the act violates a mandatory or prohibitory law, it could
still produce a legal effect, the result of which would still produce a valid effect.
o That is if the law says so.
o EXAMPLE, MANDATORY LAW:
 When you enter into a marriage, the consent of the parties to a marriage must be
given freely and voluntarily.
 What happens if the consent of the woman was obtained through fraud and
intimidation? Does it no violate mandatory law?
 Yes. The act of threatening the other party to marry is a violation of a
mandatory law – free and voluntary consent.
 So does it make the marriage void?
 No. the marriage is not void but only voidable.
 Why?
o Because the law says so. Art 45 of FC, marriage where consent of
party was vitiated, it is only considered a voidable marriage.
 So it is valid until annulled.
o EXAMPLES, PROHIBITORY LAW:
 There is that provision in law that if the husband dies, the surviving spouse cannot
remarry within 300 days. This is to avoid doubtful paternity and filiation in case she
gets pregnant.
 What happens if she violates this law? Will it make her marriage null and
void?
o The marriage is still valid.
o But it is without prejudice to the criminal prosecution of the wife of
the widow.
 Another example is gambling. It is prohibited by law. But there are some forms that
is allowed by law like Casino, Lotto.
 So gambling is not allowed, except when the law provides that it is allowed.
 Another is when the law makes an act void but recognizes some legal effects. Art 36
of FC, on psychological incapacity. When you marry that person who is
psychologically incapacitated, your marriage will be declared void.
 But what about your children?
 The law says the children will continue to be legitimate.
 So even if the marriage is declared void, the offspring will be considered
legitimate.
 Because the rule is, children born out of a void marriage are illegitimate.
Exception is if the marriage that is declared void is anchored on the ground
of psychological incapacity.
ART 6 – WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third person
with a right recognized by law. (4a)
- GR: rights may be waived
- EXPT: waiver is
o 1. contrary to L,PO,PP,M,GC
o 2. prejudicial to the recognized right of 3rd p
- REQUIREMENTS FOR A VALID WAIVER
o Rights that are given to us by law can be waived by us. The law cannot force us to exercise
the right if we do not want to.
o But there are certain parameters to waive that right.
 1. waiver must be an intentional relinquishment of right
 So you must be aware that you have that right. And you voluntarily
renounce that right.
 2. you must be capacitated to waive that right
- LIMITATIONS TO WAIVER OF RIGHT
o 1. you cannot waive right if waiver is contrary to law, public
o order, public policy, morals, or good customs
o 2. you cannot waive a right that will affect rights of third
o persons
- WHEN RIGHTS ARE NOT WAIVABLE
o 1. RIGHT TO LIFE
 Case:
 It happened in old Plaza Independencia. A preacher of a religion believes he will not
die. So he instructed his follower to light him up after he poured gasoline on him.
 The follower was sued. His defense was that the preacher waived his right to life.
 SC said you cannot waive the right to live. And if you participated in that waiver, you
must be answerable for the consequences of you act.
 That is why we do not allow euthanasia or suicide because that is AGAINST PUBLIC
POLICY; waiver of right to life is not considered a valid waiver.
o 2. RIGHT IS NOT YET IN EXISTENCE
 Example is when you waive your right to inherit from your parents.
 You cannot waive future inheritance. You can only waive present inheritance.
o 3. RIGHT TO TRANSFER SCHOOLS – RENUNCIATION OF RIGHT IS AGAINST PUBLIC POLICY
 Case: Emiteryo Qui
 When he studied law, he was given a scholarship grant by Arellano Law School, and
he signed a contract that he will finish the course in such school. OW he will refund
the university.
 He had a misunderstanding with one of the professors. But the university insisted
on the refund of the value of scholarship from 1st year to 3rd year.
 He was not able to transfer. So he took the bar by 3rd year and landed on top 10. He
sued Arellano and he won.
 Arellano says that he signed the contract thus waiving the right to transfer to
another school.
 SC said, that right cannot be waived. That waiver is CONTARARY TO LAW AND
PUBLIC POLICY. Therefore, the waiver is not valid. The court may disregard that
waiver.
o 4. AGREEMENT BETWEEN SPOUSES – WAIVER OF RIGHT TO SUE
 When spouses sign an agreement that they are free to look for other partners and
they may remarry a dn the other party will not sue.
 The waiver of right to prosecute for bigamy and adultery in not waivable, it is
against PUBLIC POLICY.
o 5. WAIVER OF RIGHT OF OWNERSHIP OVER THE PROPERTY
 Case: Leal vs IAC
 Owner of property sold his property on a pacto de retro sale – sale with right to
repurchase. But the provision there is that only the seller and his heirs can
repurchase the land.
 IOW the buyer cannot sell to any other person.
 SC said that is not valid. The contract of sale is valid. But the prohibits the buyer to
sell the property to any other person is not valid because that is tantamount to
perpetual prohibition in the part of the new owner to enjoy his property.
  That is a deprivation of his RIGHT OF OWNERSHIP over the property.
o6. WAIVER OF POLITICAL RIGHTS
 This is against public policy.
 Example, there are two person wanting to become a mayor.
 They entered into an agreement that one will become a mayor and the other vice
mayor. And in the middle of the term , he will resign so that the vice mayor will take
over.
 This is not valid and unenforceable in law. It is AGAINST PUBLIC POLICY.
- WAIVER OF RIGHT PREJUDICES THE RIGHT OF OTHER PERSON WHOSE RIGHT IS RECOGNIZED BY
LAW
o 1. ACCION PAULIANA
 You have that in the law of property – accion pauliana.
 For example, I borrowed 1m from you. It is already due and demandable, I could not
pay you because I do not have the money.
 When my parents died, I inherited 1m, enough to pay the obligation. But I waived it I
favor of my siblings.
 The waive is not valid because it will prejudice the right of creditors.
 So this is accion pauliana – an action brought by a third person who is prejudiced by
the act of his debtor.

ART 7 – REPEAL OF LAW

Art. 7. Laws are repealed only by subsequent ones, and their violation or nonobservance shall not be
excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void and
the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary
to the laws or the Constitution. (5a)

- HOW LAWS ARE REPEALED

o Laws are repealed only by subsequent ones, and their violation or nonobservance shall not
be excused by disuse, or custom or practice to the contrary.
o Repeal of laws may be done either:
 1. expressly
 2. impliedly
o EXPRESS REPEAL
 Express repeal occurs when the legislature passes a new law which expressly
declares that it is repealing the old law.
 REQUIREMENTS:
 In express repeal, there must be an inconsistency or conflict between the
old and new law. And the new law expressly declares that the old law is
repealed by this new law.
 So you specify what law is being repealed.
o IMPLIED REPEAL
 Implied repeal occurs only when there is a new law passed and the new law is in
conflict with the old law. The provisions of the new and the old law are
irreconcilable. But the new law did not provide that it is repealing the old law.
 It is silent. So if this happens, it is incumbent upon the court to try to reconcile the
new and old law.
 Because we have to remember that implied repeal is frowned upon by our courts.
The policy is that as much as possible, we try to avoid repealing the law impliedly.
 But if they cannot be harmonized, the court will be forced to declare an implied
repeal.
 So the rule therefore is that if both old and new law can stand together and the
provisions can be reconciled, then the court shall avoid declaring an implied repeal.
 - LAPSE OF LAW
o If the law will provide for a period which it could be effective, then the lapse of the period
stated by the law will cause the demise or the death of the law without the need of repeal.
o This is what we call as LAPSE OF LAW.
o EXAMPLE.
 1. law granting emergency power of president
 2. annual appropriation law
 So there is no need of express declaration of repeal because that law will die its
natural death after a lapse of certain period.
- NON USE OR CONSISTENT VIOLATION OF LAWS
o We must remember that laws can only be repealed expressly or impliedly. So the fact that
existing law has not been used anymore or the law has been violated so many times already,
that does not mean that the law has already been repealed.
- HIERARCHY OF LAWS
o When the courts declared a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.
o Second paragraph refers to the hierarchy of laws.
o 1. constitution
o 2. statutes, laws enacted by congress
o 3. administrative rules and regulations
o 4. local legislations and ordinances
- UNCONSTITUTIONAL STATUTE
o If there is a conflict between the constitution, and statue, the statute will be declared
unconstitutional.
o If only a portion of the statute is in conflict with the constitution, the courts could declare a
PARTIAL UNCONSTITUTIONALITY of the statute.
o But that can be declared when the said portion of the statue is separable from the entire
statute itself. OW if it will affect the entire statute, the entire statute will be declared
unconstitutional.
o A law can be declared unconstitutional if:
 1. its enactment is not within the legislative powers of congress
 2. when arbitrary methods may have been established
 3. the purpose and effect of the law violates the constitution or its basic principle of
law
o Example. In 1950’s congress enacted a law which provides that those who took the bar exam
who got a grade below 75 but more than 70 are considered passed. This was the Bar
Flunkers Law. Is that law valid?
o This was declared as unconstitutional. Admission to the practice of law is within the power
of SC. Congress cannot legislate on that matter. Congress violated the PRINCIPLE OF
SEPARATION OF POWERS.

ART 8 – EFFECT OF JUDICIAL DECISIONS

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

- DECISIONS ARE NOT LAWS

o Does this mean that judicial decisions are considered laws?
o No. It’s part of the legal system but they are not laws. SC is very careful in answering this. OW
it will be in violation of separation of powers.
o They are not laws, but they have the force and effect of a law.
o We have three branches of government. The legislative department makes the laws,
executive will enforce and judicial will apply them, and if ambiguous, they interpret.
 o So the judiciary cannot make laws under the separation of powers. Only legislature may do
that.

- DECISIONS ARE PART OF LEGAL SYSTEM – BINDING AND ENFORCEABLE

o Decisions of SC are really like laws because it is binding and enforceable.
o Why is it that decisions of SC is part of the legal system?
o Remember that in our system of government, only
o congress will make the laws. But they will not apply the law to a given conflict.
o If you will violate the law, they will bring you to court. And the court will apply the law to
you and impose the imposable penalty.
o If the law is not very clear or ambiguous, the court will interpret the law.
o So the court has dual functions: apply and interpret the law.
o Because the court is the interpreter of the law, the interpretation given by the court on that
particular law becomes part of the law. It is like a contemporaneous interpretation of the
meaning of the law so it becomes incorporated in the law.
o That is why the interpretation of the court becomes part of the legal system.
- SCOPE – ONLY SC DECISIONS
o But remember that the rule is that not every decision of the court is part of the legal system.
Only the decision of the SC becomes part of the legal system. All other inferior courts’
o decisions do not become part of the legal system.
o This is because SC is the official interpreter of the constitution and the law.

ART 9 – DUTY OF JUDGE TO DECIDE

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

- JUDICIAL LEGISLATIONS
o Is judicial legislation prohibited?
o Judicial legislation is not prohibited totally in the light of the provision of art 9.
o Art 9 provides that in case of silence. Obscurity or insufficiency of the law, the court will have
to decide the case.
o IOW, when the court decides a case where there is no applicable laws, art 9 says that court
should decide. The judge cannot just sit on the case.
o The judge is mandated by law to use all applicable sources.
o In the old civil code, if the law is silent or obscure or insufficient, the judge must use the local
customs of the place in deciding the case. If there is no customs available, he should apply
the rule of equity.
o But now, the NCC, he can use any source and not just the customs of the place and rule on
equity. For as long as he feels that it is fair and reasonable. Because of art 9, it is argued that
judicial legislation is not something that we cannot avoid. Even the NCC has acknowledged
that judicial legislation is something we have to deal with.

- EQUITY FOLLOWS THE LAW

o When there is no applicable law, you can use the RULE ON
- EQUITY.
o EQUITY FOLOWS THE LAW means that if there is no law applicable law to particular conflict,
the judge should apply the rule of equity; what he thinks is fair and reasonable under the
circumstances.
o But this does not mean that the judge can use equity anytime. You can only use the rule on
equity in the absence of a law. If there is a particular law, then you have to apply the law,
even if it seems unfair. The rule of equity cannot go higher than the rule of law.

- OURS IS A GOVERNMENT OF LAW AND NOT OF MEN

 o Case: Buelavicencio vs Lucban
 Prostitutes in Manila were exiled in Davao because the
 Mayor wants to get rid of them.
 SC said that the intention of mayor is good but it violates the provision of law on the
FREEDOM OF ABODE. No matter how good the intention of the official, if it runs in
conflict with the law, even if the law is not good, the law will prevail because ours is
a government of law not a government of man

ART 10 – DOUBT IN INTERPRETATION

Art. 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking
body intended right and justice to prevail. (n)

- Arts 9, 10 and 11 are related to statutory construction.

- Art 9 says that the judge may use the rule on equity.
- Where the judge is confronted with the case and there is an applicable law, but the applicable law is
ambiguous; there are two or more meanings, you chose that interpretation that is closest to what you
feel is right, fair and reasonable.
- You must always bear in mind that when these laws are enacted by congress, the members always
intended right and justice to prevail.

ART 11 - CUSTOMS
Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced. (n)
Art. 12. A custom must be proved as a fact, according to the rules of evidence.
(n)
- Art 11 and 12 are all about customs.
- That they must be proven as a fact.

ART 13 - PERIODS
Art. 13. When the laws speak of years, months, days or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from
sunset to sunrise.
If months are designated by their name, they shall be computed by the number of days which they
respectively have.
In computing a period, the first day shall be excluded, and the last day included. (7a)
- Art 13 is about period.

ART 14 – 18 – CONFLICT OF RULES

- These articles refers to conflicts rules. Meaning, what law will you apply if there is a conflict between
our laws and the laws of other countries.
- THEORIES AND PRINCIPLES:
o 1. ART 14 – TERRITORIALITY THEORY
Art. 14. Penal laws and those of public security and safety shall be obligatory
upon all who live or sojourn in the Philippine territory, subject to the
principles of public international law and to treaty stipulations. (8a)
- SCOPE
o Under territoriality theory that is applicable in criminal law, when the crime is committed in
the Philippines, Philippine law will apply regardless of who committed the crime regardless
of who committed the crime, a foreigner or a Filipino.
o So all the: Penal laws
o Laws relating to public security and safety
o EXCEPTIONS
 1. principle of public international law
 2. treaty stipulation
- PRINCIPLE OF PUBLIC INTERNATIONAL LAW
 o Like the Philippines is a signatory the Hague Convention where there is an agreement that
diplomatic agents from other country assigned to our country.
o DIPLOMATIC AGENTS refer to ambassadors.
o DIPLOMATIC IMMUNITY does not refer only to ambassadors but also the staff like the
drivers.
o Crime committed here will be reported to his country and it will be his country that will
prosecute him.
- TREATY STIPULATION
o When our country enters into a treaty with another country where we exempt the citizens of
the country from our own law.
o Example, is the military base agreement (now abrogated), we agreed that US military
personnel will be exempted from the coverage of our law. Crimes committed here will be
reported to his own government and his country will prosecute him.
o 2. ART 15 – NATIONALITY THEORY
Art. 15. Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad. (9a)
- SCOPE
o Law relating to:
 1. family rights and duties
 2. status
 3. condition
 4. legal capacity
o TN that nationality theory applies only to civil laws. But territoriality theory refers to
criminal laws.
- “BINDING UPON CITIZENS OF THE PHILIPPINES, EVEN THOUGH LIVING ABROAD”
o If you are a Filipino and you obtain a divorce abroad, that divorce is not recognized in the
Philippines. Your status is governed by Philippine laws wherever you may go.
- APPLICABLE TO FOREIGNERS
o If you read art 15, it would seem that it applies only to Filipinos living abroad.
o But does it not apply to foreigners living in the Philippines?
 YES. It applies.
 Nationality theory means that it is the national law of the person that will govern
him on these matters.
o This explains why if a foreigner wants to marry n the Philippines, his capacity to enter into
marriage is determined not by the Philippine laws but by his national law. He is required to
bring his CERTIFICATE OF LEGAL CAPACITY TO ENTER INTO MARRIAGE issued by his own
country’s embassy in the Philippines.
- DIVORCE RECOGNIZED IN PHILIPPINES
o The only divorce that we recognize is art 26 par 2, which is the divorce by the foreigner
spouse against the Filipino spouse (mixed marriage), capacitating the foreigner spouse to
remarry.
o This law has been modified in:
o Case: Republic vs Orbicido
 This will apply even to a Filipino who later on became a foreigner, and then filed for
divorce.
 But under art 26, if the Filipino spouse is the one who filed for divorce against the
foreigner spouse, it will not be recognized in the Philippines because of the
nationality theory.
 So if you are a Filipino and you are married under Philippine law, your status
married wherever you may go.

o 3. ART 16 – PRINCIPLE OF LEX REI SITAE

 Art. 16. Real property as well as personal property is subject to the law of the
country where it is stipulated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found. (10a)

- GR: LEX REI SITAE – all properties

- EXPT: NATIONAL LAW – intestate, testamentary succession
o As to:
o 1. order of succession
o 2. amount of successional rights
o 3. intrinsic validity of testamentary provisions
- LEX REI SITAE
o It means that REAL is governed by the law of the place where the property is situated.
o Now includes PERSONAL PROPERTY
 Under the old civil code, personal property is governed by the national law of the
owner of the personal property because it was easy to bring with you, based on the
Roman Law.
 Roman law follows the principle of mobilias siquitor personam which means
personal property is governed by the national law of owner or where his domicile is.
 In NCC, the concept of rei sitae has been expanded to include personal property.
o GR: is that both personal and real property is governed by lex rea sitae.
o EXCEPTION: matters pertaining to succession.
 It is to be governed by the national law of the decedent and not the law where the
property is located.
 Example. If the decedent is an American who died in the Philippines. What law shall
govern in the settlement of the estate?
 We will apply American law. It is his national law that will govern, not the
Philippine law, even if all his properties are located in the Philippines.
 So if an American executed a last will and testament on how his properties
will be distributed, what law will govern in the probate of the will?
o NATIONAL LAW.
- RENVOI DOCTRINE
o Case: In re: Edward Christensen
 This illustrates to us the principles of conflict of laws, more particularly the
nationality theory vis a vis the lex rei sitae principle.
 He was an American who permanently lived in the Philippines during American
regime. He had two illegitimate children here, both were acknowledged. He had
some properties. When he dies, his will gave all his estate to one
 IC, Maria Lucy and only a small amount to Helen, the other illegitimate child.
 Helen complained. Under our law, the IC may share on the estate.
 The decedent was a citizen of California. We take note that it is the national law of
the decedent that will apply. In California law, it says that IC’s are not compulsory
heirs. But in the same civil code of California, a provision says that if a citizen is
already domiciled in another country, and he die there, it is the law of that country
which will prevail.
 So there is now a conflict of two laws.
 Our SC resolved the problem by applying the second provision. The Philippine law
will apply. Because the first provision is a general provision of California that
applies to their citizens who are also residing there. But if the decedent is already in
another country, the country’s law will apply because it is a SPECIFIC PROVISION OF
CONFLICT OF LAWS.
  If a matter is referred back to us, we will accept that referral OW it will result to
international football.
o RENVOI DOCTRINE provides that if the law of a particular country would refer the
settlement of the problem to the national law of the decedent, but the national law of the
decedent refers to back to the law where the decedent resides, then our law will have to be
applied.
- BASED ON PUBLIC POLICY – CANNOT BE WAIVED
o TN that this provision of the law is anchored on public policy.
o And it cannot be rendered nugatory even in the will of the decedent.
o Case: Mishano vs Primo
 A Turkish national was already permanently residing in the Philippines with his
family. He stated in his will that he wants his estate to be settled under Philippine
laws. When he died, it was presented in our court for probate.
 Our court says that it cannot follow the wish of the decedent to apply the Philippine
law. His will must be probated in accordance with his national law. And that
provision of the law cannot be rendered nugatory by the wish of the decedent.
o Case: Amos Bilis vs Bilis
 An American citizen from Texas had some properties in Philippines and US. He
stayed in Philippines but returned to Texas and was considered a resident of Texas.
 When he died, he stated that he wants his properties to be settled under the law of
Texas, where IC’s are not compulsory heirs. His IC’s here wants Philippine laws to be
applied where IC’s are compulsory heirs, citing Edward Christensen.
 SC said that Christensen case is inapplicable because the decedent is not a resident
of the Philippines, so renvoi doctrine cannot be applied. There is no lement there for
an application of Philippine law.

o 4, 5, 6. ART 17 – LEX LOCI CELEBRATIONIS & THEORY OF EXTERRITORIALITY &

PROBATIVE LAWS
Art. 17. The forms and solemnities of contracts, wills, and other public instruments
shall be governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of
the Republic of the Philippines in a foreign country, the solemnities established by
Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have, for
their object, public order, public policy and good customs shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
- LEX LOCI CELEBRATIONIS
o This rule applies to contracts.
o If a contract is executed abroad, then it is the law of the country will apply but only insofar as
the extrinsic validity is concerned.
o The law of the place where the contract is celebrated will only apply on matters of forms and
solemnities like the extrinsic validity only.
o It does not apply to the intrinsic validity like the legal capacity of the parties to a contract.
o Example. Two Filipino minors went to HK and got married. It was considered valid under HK
law. when they return in Philippines, is the marriage considered valid?
 No. Because the legal capacity of the person to enter into
 marriage cuts deep into the intrinsic validity of marriage.
o Extrinsic validity pertains to matters concerning questions like whether the contract should
be notarized.
o Case:
 A Filipino who was already residing in Germany had a case in the Philippines
involving a land he inherited from his parents. Because he cannot attend the
hearing, he executed an SPA in favor of his cousin to represent him in the case.
  The opposing party objected to the admission of the SPA on the ground that it was
not notarized in Germany.
 SC said there is no need because in Germany, the document need not be notarized. It
will be valid as long as it is signed by parties.
 The extrinsic and intrinsic validity of contract is governed by the Philippine law.
- THEORY OF EXTERRITORIALITY
o When a contact is referred to or executed before the diplomatic or consular office of the
Philippines, then it is as of that contract is executed in the Philippines. Therefore it is the
Philippine laws that will apply as to the extrinsic validity of the contract.
o EXTERRITORIALITY means that the Philippine embassy or consular office abroad is
considered to be an extension of the Philippine territory.
o PROHIBITIVE LAWS
o Prohibitive laws concerning:
 persons,
 their acts or properties or
 those which have for their object public policy,
 public order or
 good customs
 shall not be rendered ineffective or nugatory by laws or judgment
promulgated in a foreign country.
 This is a good support for the contention that divorce obtained by a Filipino abroad
is not recognized as valid n the Philippines. (other than nationality theory)

o 7. ART 18 – CONFLICT OF GENERAL LAW AND SPECIAL LAW

Art. 18. In matters which are governed by the Code of Commerce and special laws,
their deficiency shall be supplied by the provisions of this Code. (16a)
If here is a conflict between a general law and a special law, the special law will
prevail.
When the special law is silent on a certain matter, the general law can be applied
suppletorily.

- SUPPLETORY APPLICATION OF THE GENERAL LAW

o Example. NCC is a general law. Insurance code and Code of
o Commerce are considered special laws.
o Case: Insular vs Sunlife of Canada Insurance
 A person applied for insurance in Sunlife. The application was done in mail and it
was received by Sunlife. But before they could mail their acceptance, the applicant
died.
 Is there now a perfected contract of insurance?
 If you read the Insurance Code, it is silent as to when the insurance contact is
perfected.
 NCC says that contract is perfected upon meeting of minds of parties. And if the offer
is done in writing and the acceptance is done in writing or by mail, the contract is
perfected the moment the applicant receives the letter of acceptance.
 In this case, he dies before he got the letter of acceptance.
 So there is to perfected contract of insurance.
 SC applied the NCC suppletorily.
- WHEN GENERAL LAW CANNOT BE SUPPLETORILY APPLIED
o But then in another case, SC said that we cannot always apply the NCC suppletorily to a
special law if by applying the general provisions of the law will defeat the very purpose of
the special law.
o Case: DOLE vs Maritime Company Philippines
 This involves the Law on Carriage of Goods by Sea Act – COGSA. Under this law,
when you ship goods, through a shipping company and when you arrive at the port
 of destination, it is already damaged, you have the prescriptive period of 1 year to
file a claim.
 After 1 year, he filed a claim. A motion to dismiss was filed.
 The shipper said that he made an extrajudicial demand within 1 year and we apply
the NCC suppletorily where it says that an extrajudicial demand tolls the running of
the prescriptive period.
 But SC said they cannot apply the NCC suppletorily. The provision in CPGSA which
requires that claims for damage of goods shipped must be filed in one year means
that the claim must be a judicial demand, not an extrajudicial claim.
 An extra judicial demand does not toll the running of the prescriptive period.
Because if we allow that, it defeats the very purpose of the law which is to settle the
disputes arising out of carriage of goods by sea as soon as possible.
 And when the COGSA is clear, then there is no reason for us to apply the NCC
suppletorily.

CHAPTER 2 - HUMAN RELATIONS (n)

- When you engage in practice of law, when you file a civil case, you will ask for damages. And the basis
for your demand for damages from this chapter, Arts 19, 20 and 21.

ART 19 – PRINCIPLE OF ABUSE OF RIGHTS

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.
- SCOPE
o 1. exercise of right
o 2. performance of duties.
- LIMITATION of the basic right
o 1. act with justice
o 2. give everyone his due
o 3. observe honesty and good faith
o So even if you are exercising a right, you can be made liable for damages. When you exercise
the right without observing the limitations or basic norms of human conduct, you can be
accused of abusing your right.
o Case: Aldrich Investment vs CA
 This involves a landlord who demolished the house of the tenant.
 There was an ejectment case and the defendant lost. The landlord applied for a writ
of execution. The sheriff with the defendant went to the place, and the tenant asked
for 2 to 3 days to moved. The landlord gave him until the afternoon.
 They demolished the house of the defendant. he suffered damages for the loss of
things and filed a case against the landlord.
 SC said the landlord will be liable for damages. When you perform a duty under the
law, you must observe the limitations.
o Case: Meralco vs CA
 This involves Meralco cutting off the electrical supply of a delinquent concessioner.
 Meralco cut the electrical connection without prior notice.
 Under the law, there should be a 48 hour notice.
 SC said they acknowledge the right of Meralco to cut electricity. But in exercising the
right, you have to act with justice, give everyone his due, and observe honesty and
good faith. Meralco failed to do so, so it was ordered to pay damages.
o Case: Quisumbing vs Meralco
 Meralco caught one of its concessioner having a tampered meter. That is theft.
Meralco immediately removed the tampered meter and filed a case against
consessioner.
 The issue here is can Meralco immediately disconnect electric service on the ground
of alleged meter tampering?
  SC said, no. They cannot do it by themselves. Before they could cut the electric
meter, they must invite a representative of the government like a policeman or
barangay captain or barangay tanod or a representative of the energy regulatory
board. OW Meralsco is already acting as a judge and an executor.
 So Meralco was ordered to pay damages.
 The presence of government agents who may authorize immediate disconnection
goes into the essence of DUE PROCESS. Meralco cannot be the prosecutor and a
judge in imposing the penalty of disconnection due to alleged meter tampering.
o Case: Bilayo vs Shell Company Philippines
 A debtor declares insolvency and during insolvency proceeding, the creditors were
invited to attend. One properties was an airplane parked in LA.
 After the meeting, one of the creditors, Shell Company immediately called its sister
company in California. They executed a deed of assignment of all its collectible
against the debtor. The sister company filed a case in California and attached the
plane. In effect, the other creditors of the Philippines cannot get the plane to be
divided among them.
 The other creditors sued Shell Company Philippines and SC ruled in their favor.
 Shell said they are just exercising their rights to assign their collectibles to another
party. But SC said that by exercising the rights, they did not act with justice, give
everyone his due, and observe honesty and good faith. So shell is liable for damages.
o Case: Cebu Country Club vs Eliza Gati
 SC said that while the BOD under the articles of incorporation of the non-profit and
non stock membership club may have the right to approve and disapprove the
application of proprietary membership, the right should not be exercised arbitrarily.
 A right, though by itself is legal, as it is recognized and granted by law as such may
nevertheless become the source of some illegality.
 When a right is exercised in a manner which does not conform with the norms
enshrined in art 19 of this code and result to damage to another, a legal wrong is
committed for which the wrongdoer is held responsible.
 SC said, that although it is the right of BOD to deny acceptance of proprietary
membership, that right should be exercised in accordance with the norms of art 19.
 You cannot just deny the applicant arbitrarily. There must be a valid reason why you
did not accept it.

ART 20 – WILFULL OR NEGLIGENTLY CAUSE DAMAGE

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
This is in accord with the principle in criminal law, that every person who is criminally liable shall also
be civilly liable.

- WHEN YOU ARE LAIBLE FOR DAMAGES (ELEMENTS)

o 1. act is against the law
o 2. act is willful or negligently done
o 3. causes damage to another
o 4. a right is impaired
- RIGHT MUST BE IMPAIRED
o When you commit an act in violation of a law, then you must be ready to answer for
damages.
o In fact, negligent act may be considered as a crime in RPC, like reckless imprudence resulting
to physical injuries.
o In art 20, it is not enough that you claims that you were damaged, you must also be able to
prove that you have a right that has been impaired by the act of another.
o If there is no right that is impaired, even if there is damage, then the court as no basis to
award damages.
 oCase: Felipe vs Leoterio
 A person joined a beauty pageant. She lost. She sued the judges for the expenses
paid for the pageant.
 SC said, you cannot sue the judges because you have no right to win. There should
be a proof of clear arbitrariness of the rules.
 It would be a different story if the judged violated the rules like letting the
contestant win even if she did not qualify a status requirement.
- NEGLIGENT ACT
o A negligent act may give rise to an action for damages even if you did not intentionally do it.
o Case: University of the East vs Janer
 This involves a graduating law student of UE. He asked for a removal exam. But
before the result came out, the list of graduating students was published and his
name appeared there. But a few days after graduation, it was showed that he failed
the removal exam. So he cannot graduate. So he sued the university for damages
suffered for the expenses and moral damages.
 SC ruled that UE is liable for damages because of its negligence in putting his name
on the graduating list.
 However, UE should only pay actual damages, like the outfit and plane tickets.
 No moral damages because the student did not suffer shock trauma and pain when
he was informed that he cannot graduate. He had the obligation to verify for himself
if he has completed all the necessary requirements to be eligible for graduation and
for the bar examination. He has no right to presume that he passed the removal
exam.

ART 21 – ACT CONTRARY TO MORALS, GOOD CUSTIOMS AND

PUBLIC POLICY
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.

- ART 20 VS ART 21
o 20: act is contrary to law
 act causes damage to another
 act is done either willfully or negligently
o 21: act may not be contrary to law
 act causes loss or injury to another
 act must be done willfully
 act is contrary to morals, good customs or public policy
o Art 21 is intended for those who committed an act that is not a crime but is done willfully
and is against morals and good customs and public policy.
 Example. Dirty old man entices a young woman but over 18 years of age to have an
affair with him. So the young woman surrendered her virginity to the man.
 There can be no seduction because the woman is already of legal age.
 But because the act is contrary to morals, good customs and public policy, the man
should be answerable for damages.
- DAMAGE FOR BREACH TO MARRY
o If man promised to marry a woman and he did not make good the promise to marry, he
cannot be compelled and be charged for it. But then there may be a remedy under art 21.
o What kind of damages can she recover?
o SC says, ACTUAL DAMAGES ONLY, not moral damages. If because of the promise to marry,
she has already spent a lot, the woman may recover actual damages.
o What about moral damages?
o SC said that a woman can only act for moral damages if there is a form of moral seduction.
o There is MORAL SEDUCTION when the woman surrendered herself to the man because of
the promise to marry.
 o But even if there no carnal knowledge, a man may still be held liable for moral damages if the
breach or promise to marry was done deliberately or intentionally in his desire to inflict loss
or injury to another.
o Thus a man who fails to appear at the altar during the wedding day simply because he
intended to embarrass or humiliate the woman, he is liable not only for MORAL but even
EXEMPLARY DAMAGES.
o Case: Hermosisima vs CA
 The woman was around 10 years older then the man. The man was 19. The man
breached his promise to marry. The woman wanted moral damages.
 SC said that there is no moral seduction.
o Case: Victorino vs Mora
 SC said that even if thee was no carnal knowledge, a man may still be held liable for
moral damages if the breach of promise to marry was done deliberately or
intentionally in his desire to inflict loss or injury to a woman.
 Thus a man who deliberately fails to appear before the altar before the wedding day
simply because he intended to embarrass or humiliate the woman is liable not only
for moral but even exemplary damages. This I s in addition to the actual damages.
 But in this case, the failure of the man to make good his promise to marry was done
intentionally or deliberately in order to humiliate the woman. He left the woman in
the altar.
 Why is it that breach of promise to marry is not included in the NCC?
 The framers found out is very dangerous because it would expose men from
unscrupulous women if it is considered an actionable wrong.
 The reason behind this is to provide a remedy for those who have been a victim of
immoral act which does not constitute a crime. There are acts that are not in
consonance with the basic tenets of morality but are not contrary to law.
o Case: Cicilio Te vs Alfonzo Te
 A man was adopted by a Chinese family. When he grew up (30 years), he goes to
daughter of their relative in the pretext of teaching the young woman how to pray
the rosary. But he was trying to entice the woman. The woman fell for him and they
eloped. The parent of the young woman files a case against the man.
 The court awarded moral damages in favor of the parents.
 The act of the man is not contrary to law. There was no crime committed because
the young woman was not a minor. She was already 19 at the time. But what he did
in enticing her to have an affair with him is contrary to morals. Because the parents
trusted him.
 This is an example of art 21 where an act may not be against
 the law but it may give rise to an action for damages if it
 causes damage or injury to another and it is against morals
 or public policy.

ART 22 – 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.

- SOLUTIO INDEBITE
o When you studied quasi contracts, you have encountered solutio indebite.
o Which means that if you have made payment to a person which is something not due him,
that person has the obligation to return to you what you paid?
o This is based on the principle of unjust enrichment; which means that no person must
unjustly enrich himself at the expense of another.
- SOLUTIO INDEBITE VS ACTION IN REM VERSO
o Solutio indebite is different from action in rem verso.
 o In action in rem verso, there was no mistake in making the payment.
o Whereas in solutio indebite, thee was a mistake.
o Example, you paid the person because you believe you have an obligation to pay him such
amount. But it turns out, you do not have an obligation. Or you have an obligation but you
over paid.
o In action in rem verso, you did not make the payment by mistake. You are aware that you are
not supposed to make payment but by force of circumstance, you were forced to pay. Like
you want to avoid embarrassment. Like paying for the item bought twice.

ART 22 – BENEFIT FROM INJURY OF ANOTHER

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.
- WHEN EVENT WITHOUT FAULT CAUSES BENEFIT TO YOU AND DAMAGE TO ANOTHER
o The other rule in human relation was copied from the civil code of Argentina, which states
that even when an act causing damage to another’s property was not due to your own fault
or negligence, you will still be liable for damages or indemnity if through the act or event you
were benefited.
o This is a new provision that is copied from the civil code of another country.
o This means that when you are benefited from the occurrence of an event but that event
causes damage to another person, you were benefited, equity demands that you indemnify
the other person.
o Example. Flood came and your animals went uphill owed by another. They ate his plants.
This is not your fault because it is a fortuitous event, an act of god beyond the control of man.
In this situation, you have the obligation to indemnify the owner of the land. Because even if
it is not your fault but it redounded to your benefit, justice and equity dictates that you have
to reimburse the person.
o This is art 23, part of human law relation.

ART 24 – PARENS PATREA

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 his protection.
- PARENS PATRIA
o Another law on human relation is found on your political law class, we call PARENS PATREA.
o When one party in a contractual obligation is at a disadvantage because of:
 1. moral dependence
 2. ignorance
 3. indigence
 4. mental weakness
 5. tender age
 6. other handicap
o The state is mandated by law to be vigilant for the protection of the underdog. So the state
will act like the father of his children.
o This explains why in many instances like in labor cases, when there is doubt, the labor court
will always resolve the conflict in favor of the laborer. Because the role of the government is
to protect the interest of the who are disadvantaged.
o This is in consonance with the concept of SOCIAL JUSTICE.

- CONCEPT OF SOCIAL JUSTICE

o Case: Calalang vs Williams
 The court says that those whoa re less favored in life should
 have more in laws.
ART 25 – THOUGHTLESS EXTRAVAGANCE
- Thoughtless extravagance
o Is 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.
o If you have so much money, don’t show it during acute public want. You are flaunting your
wealth. Ostentatious display of wealth should be avoided.
o And if that happens, you can be stopped at the order of the court at the instance of any
government or private institution.
o So a case for injunction may be filed with a prayer of TRO if during acute public want you
will display your wealth.
o So that’s another rule of human relation.

ART 26 – RESPECT FOR DIGNITY AND PRIVACY

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 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.

- This enumerates the 4 acts which could be stopped and may give rise to action for damages even if
these acts are not considered crime.
o 1. Prying into the privacy of another's residence:
 you may be sued for injunction
o 2. Meddling with or disturbing the private life/family relations
 E.g. you try to entice the husband of your neighbor
o 3. Intriguing to cause another to be alienated from his friends
o 4. Vexing or humiliating another on account of his religious beliefs, lowly station in life, place
of birth, physical defect, or other personal condition.

ART 27 – REFUSAL OF GOVERNMENT OFFICIAL TO PERFORM

DUTY
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.
- Because of the refusal of government official to perform duty, and because of that you were damaged,
you can ask for damages.
o Example. You go to a government office and apply for a license, and you were not
entertained because she is having her nails done. Because of the inaction, there was a delay
and because of the delay you suffered damages. You can recover damages from the courts.

ART 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.
- Unfair competition in:
o 1. agricultural, commercial or industrial enterprises
o 2. labor
 o May give rise to an action for damages if as a result of the unfair competition you suffered
damages.

SUMMARY ON THE CHAPTER

- Under the law on human relations, under this chapter, there are many acts which might be violative
of a law but will give rise to action for damages because you failed to observe the basic norms of
human relations.
- So this chapter is a very important chapter in the civil code because this will always serve as the basis
when you claim for damages when you file a case against someone. You can find your support from
art 19 to 28.

ART 29-35 – DEPENDENT AND INDEPENDENT CIVIL ACTIONS

- Let’s go to another rule of human relations, which is still related to damages.
- In art 19-28, we discussed the actions or omissions that may give rise to damages. Some of these acts
may constitute as a crime and some are not crime.
o With regard to the first one, hen an act committed constitutes a crime, it will give rise to two
kinds of liability.
o We go back to the basic rules of criminal law, that a person who is criminally liable is also
civilly liable. This brings us to the question when you can recover damages that arises out of
the crime committed. Things brings us to the discussion of dependent and independent civil
action.
o Arts 29-35 is all about dependent and independent civil action.
o We are talking here of civil actions for damages that arises out of the crime committed. There
is a crime. The act constitutes as a crime. Because we know that a person who is criminally
liable I also civilly liable, we are confronted with a problem; how do you recover the civil
liability arising out of the crime committed? Should that civil liability be proven in the same
criminal case? Or can you prosecute that civil case separately from the criminal case.
o If the law allows the filing of the civil action for damages independently from a criminal case,
then that is an
- INDEPENDENT CIVIL ACTION.
o If the law does not allow an independent civil action, it means that the civil action for
damages arising out of the crime committed must be tried jointly with the criminal case.
o This is DEPENDENT CIVIL ACTION.
- INDEPENDENT CIVIL ACTION
o In understanding the rules of dependent and independent civil actions, it is necessary that
we should starts first with knowing what are the independent civil actions.
o What is an independent civil action?
 They are enumerated in arts 31-34.

ART 31 – BASED ON OBLIGTAION NOT 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.
- ARGUMENT THAT THIS IS NOT A N INDEPENDENT CIVIL ACTION
o Actually, there was a debate on this because many civilest argue that art 31 does not really
fall under the category of independent civil action, although if you read art 31, it mentions
that the civil action is independent.
o Why did they say that? Because going back to what I said a while ago, the meaning of an
independent civil action is an action to recover damages that arises out of the crime
committed.
 Example. If you committed a crime of homicide, the heirs of the victim may also
demand damages from you for the death of the victim. So that the damages being
claimed is a civil action that arises out of the crime committed.
  This is a true dependent civil action. The civil action arising out of the crime
committed may be institutes separately and independently from the criminal case.
o But when you read art 31, civil action is based on an obligation not arising from the act or
omission complained of as a felony.
o Naturally, it will proceed independently because it is not based on the act or omission
complained of a s a felony.
 Example. You own a taxi unit and your taxi unit met a vehicular accident due to the
negligence of the driver. The passenger was injured. He filed a criminal case against
the driver; reckless imprudence resulting to physical injuries.
 Later on, the passenger filed a civil case for culpa contractual against you, which is a
breach of contract of carriage.
 So an action for culpa contractual is a civil action that is not made to depend on the
criminal case of reckless imprudence. So naturally it can proceed independently
from the criminal case because it has a different basis. The culpa contractual case is
based on the contract of carriage while the criminal case is based on the negligence
of the driver.
 But art 31 is not really an independent civil action as defined in the civil code.
Strictly speaking it is not an independent civil action in a sense that the civil action is
based on something else.

ART 32 – 34
- The independent civil action in the court are civil actions that arises out of the crime committed but
which you can prosecute independently from the criminal case.
- And what are these?

o 1. ART 32 – VIOLATION OF 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.

- ACTION
o 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.
- INDEMNITY
o The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
o 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.

- VIOLATION OF CONSTITUTIONAL RIGHTS

o Violation of constitutional rights may give rise to independent civil action. You know these
constitutional rights. They are found in the bill of rights of the constitution.
o When your rights are violated, you can sue the violator criminally. And at the same time, you
can file a civil case against that person. Your criminal case can proceed independently. IOW
the two cases can proceed simultaneously.
o Because your civil action for damages which arises out of the subject matter of the crime,
your civil action for damages can proceed independently because the law says so.

o 2. ART 33 – DEFAMATION, FRAUD OR 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.
- CRIMES
o 1. defamation
o 2. fraud
o 3. physical injuries
- GENERIC MEANING
o According to SC, defamation and physical injuries mentioned in art 33which allows the filing
of independent civil action is given its generic meaning. It means that it covers not only oral
defamation, but also written defamation and defamation in deeds.
- So what are covered under this crime is:
o forms of DEFAMATION
 a. libel
 b. oral defamation
 c. Slander by deeds.
o If covers all kinds of FRAUD:
 a. estafa
 b. malversation
 c. other fraud
o PHYSICAL INJURIES refers to the situation where the victim was injured but did not die.
o But physical injuries here covers also:
 a. homicide (all stages)
  b. murder (all stages)
o Because this term in art 33 is given a generic meaning.
o Whether it is with intent to kill or without intent to kill, when it will incur physical injury to a
person, that is covered in the generic term, physical injury where you can file an
independent civil action under art 33.

ART 34 – POLICE OFFICER REFUSES TO GIVE AID

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.

- ACT
o This refers to an independent civil action that arises out of a crime committed by a police
officer who did not respond or assist a person in need. And because of that, the person incurs
damage. He may sue the policeman criminally and at the same time, civilly.
- WHO ARE LIABLE
o The civil action is an independent civil action. The policeman will be primarily liable for that.
o But if he cannot pay for that, the city or the municipality where he works shall be
subsidiarily liable for damages.
- LIABILITY
o So the policeman may be sued criminally for malfeasance and at the same time, you can sue
for civil action for damages.
- 2 ACTIONS ARISING FROM SAME CRIME
o Because it is an independent civil action, because the damages mentioned in art 32-34 are
independent civil action, it means that the civil action that arises out of the crime committed
and is the subject of the criminal case, can be instituted separately and independently from
the criminal case.
o There can be separate hearings on the two different courts.
o The civil case need not depend on the outcome of the criminal case. And vice versa.
- QUANTUM OF PROOF REQUIRED
o Because remember that the two liabilities are based on two different quantum of evidence
required.
o In the criminal case, the quantum of evidence required to get a conviction is proof beyond
reasonable doubt. OW there is acquittal. Because we have under the constitution, a rule on
presumption of innocence. The accused is always presumed innocent until the contrary is
proven.
o Whereas in civil case, the quantum of evidence required is mere preponderance of evidence.
The court will ask the parties their evidence. Then the court will weigh which has more
weight. The court is not required to determine with moral certainty before it can decide the
case and who is at fault.
- EFFECT OF HIRING PRIVATE LAWYER
o The only way that you can defeat an independent civil action is when you hired a private
prosecutor in the criminal case.
o Even when the law allows an independent civil action…
 Example. In the case of Physical injury where independent civil action is allowed,
when the criminal case is filed, you engaged the services of a private prosecutor or
lawyer. You are deemed to have instituted the civil case with the criminal case.
 When you hire a private lawyer, it is presumed that you want the civil aspect of the
case be filed jointly with the criminal case.
 So that if the accused in tat criminal case is acquitted and no award of damages was
made by the court, can you file a case after that?
  NO. because you already lose your right to file an independent civil action
by hiring a private prosecutor.
 The reason for this is that in criminal cases, you are not supposed to hire a private
lawyer. There is a fiscal and the fiscal or the prosecutor is hired by the government
to prosecute the criminal case. So you already have a lawyer for the criminal case.
 If you hire a private lawyer, it would mean that you want your private lawyer to
prove your damages in that same criminal case.
o IOW the independent civil action that you are entitled to file is already deemed instituted in
the criminal case when you hired a private lawyer.

- DEPENDENT CIVIL ACTION

o So all other criminal cases that does not fall under arts 32 to 34 are cases that does not allow
independent civil action.
 For example. RAPE, THEFT, ROBERRY.
o This is not a violation of constitutional right, neither do they fall under defamation, fraud or
physical injuries.
o So what will happen? If you want to recover damages from the crime of theft, you should
have to do it with the criminal case. The civil aspect of the case will have to be tried jointly
with the criminal case. That is the rule for dependent civil action.
o The rules on dependent civil actions are found in arts 29, 30 and 33.

ART 29 – WHEN NOT PROVED BEYOND RESONABLE DOUBT

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.

- ACQUITTAL BASED ON NO PROOF BEYOND REASONABLE DOUBT

o You may file a civil action after the criminal case is decided – acquitted. Only preponderance
f evidence is required.
o This article refers to those crimes where there is no independent civil action. Because when
a crime falls under 32-34, there is no need for you to wait for the outcome of the criminal
case.
o If your civil case is a dependent civil action, you cannot file it while the criminal case is still
there.
o However, under art 29, you are allowed to file a civil action after the acquittal but only if the
reason for acquittal is reasonable doubt.
o If the accused in a criminal case is acquitted based on reasonable doubt, the victim or the
offended party is still given a chance to recover damages by filing a case for civil damages
after the acquittal.
o Why is this so? TN that it’s very difficult to prove criminal case than civil case. Because proof
beyond reasonable doubt is required. While civil case requires only preponderance of
evidence. Allowing to file for civil case allows the offended party to get at least damages,
bahala nag din a mapriso ang akusado.

- ACQUITTAL BASED ON COMPLETE INNOCENCE

o If the acquittal is based on complete innocence or the findings of the court is that the crime is
not committed at all, there can be no subsequent civil case.
o There is already a preliminary finding by the court that the accused may not have committed
the crime at all.
 - REQUIREMENT OF FILING SUBSEQUENT CIVIL CASE - BOND
o After a the accused is acquitted in the criminal case, the accused in the criminal case who is
now the defendant in the civil case that you are filing after acquittal may ask from the court
that you be required to put up a bond to answer for damages that he may suffer if he may
suffer that your filing of civil damages is pure harassment.
o This is the right of the accused.

ART 30 – NO CRIMINAL PROCEEDINGS INSTITUTED

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.

o Under art 30, when a crime is committed against you, remember that there are two liabilities
incurred by the offender; criminal and civil liability.
o The offended party however is not compelled to file the criminal case. You have the option to
file only the civil case.
 Example. You have a board mate who stole your watch.
 Because you were friends, you only filed a civil case. But he did not show any
remorse. Can you file a criminal case now?
 Yes.
 You may file a criminal case. But the civil case that you ave filed ahead will have to
be suspended because it is not an independent civil action – theft.
 It would have been different if the crime was homicide where there is independent
civil action and you decided to file the civil case first. The filing of the criminal case
later will not suspend the independent civil action.

ART 35 – WHEN FISCAL WILL NOT FILE CRIMINAL CASE

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.
o Art 35 refers to a situation where the case is one that does not allow an independent civil
action, the civil case is dependent on the criminal case.
o You first filed a criminal case. Then the fiscal says that there not enough evidence to
prosecute the person criminally. The fiscal believes that there is no prima facie evidence to
charge the accused in the criminal cases.
o What will you do?
 You can file the civil case for damages.
o Even if it is dependent civil action, you can have the civil case filed first over the criminal
case.
o While the civil case was already pending on court, the fiscal had a change of mind. He
realized he will now file the case in court.
o When he files the criminal case in court, what will happen to the civil case already filed
ahead?
o Again, suspended because it is a dependent civil action.
June 25, 2011
ART 36 – PREJUDICIAL QUESTION
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.

- PREJUDICIAL QUESTION
o It is a question which must be resolved first before a criminal prosecution will proceed.

- RESOLVE CIVIL CASE FIRST

o Why should that issue be resolved first?
o Because that issue there is determinative of the innocence or the guilt of the accused in a
criminal case.
o When we talk of prejudicial question, it presupposes that there are two cases arising out of
the same set of facts. It arises out of the same act or omission.
o A single act for example gave rise to two actions, one is a criminal case, and the other is a
civil case.
o Under the rule of prejudicial question, the civil case must be decided first because the
outcome of the civil case will determine the innocence or the guilt of the accused in the
criminal case.

- NATURE OF PREJUDICIAL QUESTION – EXCPETION TO RULE ON INDEPENDENT CIVIL ACTION

o Of course if we talk of prejudicial question, the civil case and the criminal case normally have
the same parties. And the issues in the civil case are similar or intimately related to issues in
the criminal case.
o The rules that we have discussed in the dependent and independent civil action is that a
single act may give rise to a criminal action and a civil action.
o And if there is a criminal and civil action based on the same set of facts, which of the two
actions should proceed first and the other one should be suspended?
o Normally, the criminal action will proceed and the civil action will be suspended. That is
the rule on dependent civil action.
o The rule that it is the criminal case that should proceed first and the civil case will have to
wait for the criminal case to be finished is the rule on dependent civil action.
o The exception is when the law allows independent civil action to be filed. That’s the first
exception.
o The second exception is when there is a prejudicial question.
- SUSPENSION OF CRIMINAL ACTION
o Most of the crimes defined in RPC do not provide for independent civil action, most of those
cases provides for a dependent civil action. So when the criminal case is filed, the civil action
is suspended.
 Independent civil action is allowed in cases of fraud, PI, defamation, as found in art
33. Or violation of constitutional right. Art 32, 33 and 34
o When we talk of prejudicial question, it is the other way around. It is the civil case that
should proceed and the criminal case that must be suspended.
o Why?
 Because the outcome of the civil case is determinative of the outcome of the criminal
case.
- 2 ESSENTIAL ELEMENTS
o 1. There is only one set of facts that gives rise to a criminal and civil action and civil action
involves an issue that is similar or intimately related to the criminal action
o 2. The resolution of the issue in the civil action determines WON the criminal action will
proceed (the rolsution will determine won the accused in the criminal case is guilty or not)
- EXAMPLES OF PREJUDICIAL QUESTION
o 1. ANNULMENT OF MARRIAGE vis a vis BIGAMY, ADULTERY, CONBINAGE
 Case: Zapanta vs Monteza
 
A married man was forced to marry another woman. So he contracted a
second marriage by force or intimidation. Later on he was sued for bigamy.
 Is there a prejudicial question here? YES.
 SC said that the annulment of the second marriage must proceed first. the
criminal case of bigamy field by his first wife must be suspended because of
the man can prove that his consent to the second married was not valid as it
was a vitiated consent, then he cannot be liable for bigamy.
 So the civil case for annulment of the marriage is a prejudicial question to
the criminal case of bigamy.
 If the court finds in the case of annulment of marriage that the consent of
the man in that second marriage was not a valid consent but a vitiated
consent, the criminal case for bigamy will not prosper.
o 2. OWNERSHIP OF PROPERTY vis a vis DAMAGE TO PROPERTY
 Case: De Leon vs Mabanag
 SC: in a criminal case for damage to one’s property, a civil action that
involves ownership of the said property between the parties should be
resolved because it is a prejudicial question.
 Here is a case where A, filed a case against B for damage to property. B
countered by filing a civil case against A for the court to resolve who
between them is the owner of the property destroyed.
 Is there a prejudicial question? YES.
o Because if B can prove that he is the real owner of the property,
how can he be charged for damaging his own property. The
criminal case for damage to property will not prosper if the
accused can prove that he is the real owner of the property.

- EXAMPLES WHERE THERE IS NO PREJUDICIAL QUESTION
o VOIDABLE MARRIAGE
 Case: People vs Aragon
 If the married man was the one who coerced a other woman to marry him,
so he contracted another marriage. the second wife files a case of
annulment of marriage because she was coerced by the married man. Later
on the wife filed a case for bigamy.
 Is there a prejudicial question here? NO.
 SC said that when a married man forced another woman to marry him then
the first wife filed a case of bigamy against him, and the second wife filed for
annulment of marriage,
 the latter case cannot be a prejudicial question because he
 who employed force or intimidation in the second marriage
 cannot use his own act or crime as e defense.
 When the married man contracted a second marriage, it
 was his own fault.
 Case: Landichu vs Reloa
 When the first marriage is an annulable or a voidable marriage, and a party
to that marriage contracts a second marriage, he is liable already for
bigamy.
 Because even if it is an annulable marriage, the first marriage must be
dissolved first before you can contract a second marriage.
 Is there a prejudicial question here?
 No. Because when you contracted the second marriage, the first marriage
was still subsisting. Although it was a defective marriage, it is valid until it is
annulled. You should have annulled the marriage first before you contract
the second marriage.
 o VOID AB INITIO MARRIAGE
 Case: Te vs CA
 Case: Pimentel
 Here is a case of a man who was married and he contracted a second
marriage, so he was sued for bigamy. He said he cannot be sued for bigamy
because the first marriage is a null and void marriage, as his wife was
psychologically incapacitated. So he countered by filing a civil case for
declaration of nullity of first marriage on the ground that his wife was
psychologically incapacitated.
 Will the criminal case be suspended?
 Is this a prejudicial question? NO.
 The declaration of nullity of marriage on the ground of psychological incapacity of a
spouse cannot be a prejudicial question to a bigamy or concubinage case filed
against he plaintiff in the civil case.
o 3. FRAUD IN OBTAINING SIGNATURE vis a vis ESTAFA
 Case: Jimenez vs Averia
 FACTS: A person was charged for estafa. The complaint alleges that he
received a certain amount of money from the complainant for the purpose
of buying a boat. But he malversed it. In fact, part if the evidence of the
prosecution was a receipt signed by the accused that he received that
money of 20k.
Later on the accused in the criminal case claimed that he was deceived in
signing the criminal case. That because of fraud and machinations, he was
enticed to sign the receipt.
So he filed a civil case to nullify the receipt. He then asked for the
suspension of estafa against him.
 But in the civil case, where he asked for the nullification of the receipt, he
never denied receiving the money. He only said that the signature therein
was obtained through fraud and machinations.
 SC said there is no prejudicial question here. The criminal case for estafa
cannot suspended simply because there is the civil case. Because even if he
can prove that his signature in the receipt was not his, or was obtained by
fraud, he did not deny that he actually received the money, that he was not
able to buy the boat. So he is liable for estafa.
 So there can be no prejudicial question if the criminal case can proceed
regardless of what will happen to the civil case.
 To be a prejudicial question, the outcome of the civil case must be
determinative of the innocence or the guilt of the accused in the criminal
case.


- HISTORY OF PREJUDICIAL QUESTION

o This concept of prejudicial question started in Spain where there are two separate courts –
civil court and criminal court. Both are co-equal and independent courts.
o Spanish SC coined this prejudicial question issue that if the issue of the civil case is similar or
intimately related to the criminal case, the criminal case should be suspended and the civil
case should be allowed to proceed first.

- MOTION FOR SUSPENSION OF CRIMINAL CASE WHEN TO FILE a motion for suspension of criminal
case on
o The rule before is you can only file a motion for suspension of criminal case on the ground of
prejudicial question when the criminal case has already been filed in court.
  IOW when the criminal case is still pending in the fiscal’s office, you cannot ask for
the suspension of the criminal case because there is a civil case involving a
prejudicial question.
o NOW: that a motion for suspension of a criminal case on the ground of prejudicial question
 may already be filed in the prosecutor’s office.
 And if the case has already been filed in court, the motion for suspension of the
criminal case on the ground of prejudicial question must be filed before the
prosecution rests his case.
o Again, You can do that the moment the criminal case is filed in the fiscal’s office, until the
case reaches the court but before the prosecution rests its case.

- WHO CAN ASK FOR THE SUSPENSION

o Case: People vs Judge Villamor
 SC said that the suspension of criminal case on the ground of prejudicial question
can only be asked by the accused of the criminal case, not by the prosecution or
the complainant of the criminal case.
 REASON: the accused is entitled to a speedy trial
 So once a case is filed against him in court, he has the right to demand that
his case should be decided immediately. It should not be delayed because
he has the right under the constitution to demand for a speedy trial.
 So if the prosecution believes that there is a prejudicial question involved in another
civil case they should have not filed the criminal case if they believed there is a
prejudicial question

- INDEPENDENT/ DEPENDENT CIVIL ACTION VS PREJUDICIAL QUESTION

o I/D CA: same set of facts that gives rise to criminal and civil case
 -but normally the civil case is for damages arising out of crime committed
 -criminal case should proceed first
 -EXPT: law allows (arts 32 and 33)
o PQ: same set of facts gives rise to criminal and civil case
 -civil case is not for damages but based on other provisions of civil code not for
damages and the resolution of civil case is a logical antecedence to the
determination of the criminal case

FAMILY CODE

- LAW ON PERSONS
o 1. juridical capacity
o 2. capacity to act

ART 37 – JURIDICAL CAPACITY

Art. 37. Juridical capacity, which is the fitness to be the subject of legal
relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired
and may be lost. (n)
- JURIDICAL CAPACITY
o Juridical capacity is the fitness of the person to be the subject of legal relation.
o This is inherent in every natural person. It is acquired by birth and it is lost by death.
- CAPACITY TO ACT
o Capacity to act is the capacity of the person to do acts with legal effects.
o And it is acquired or lost by law.
 - WHEN ACQUIRED
o juridical capacity - from the moment he acquires civil personality. And this is normally
acquired from the moment of birth.
o capacity to act - only upon reaching the age of majority.
 ILLUSTRATION:
 So a newly born child already has juridical personality. The moment a person is
delivered from the womb of his mother, he already acquires juridical personality.
 Meaning, he is already fit to be the subject of a legal relation.
 Because he is already considered a person. He can already be a party to a contract,
even though he is only one day old.
 He can be a donee. He can donate something.
 But that child who already has juridical personality does not yet have the capacity
to act.
 He cannot enter into a contract by himself. He must be assisted by his parents or his
legal guardian.
 He acquires the capacity to act upon reaching the age of
 majority.

- FULL CIVIL CAPACITY/SUI JURIS – EFFECT OF FUSION

o What is now the effect if there is a fusion between juridical capacity and capacity to act?
o We can now say that that person has the FULL CIVIL CAPACITY.
o Like the moment we reach the age of 18, we have the full civil capacity. When we were still
minors, we only have juridical personality.
o When you have juridical capacity and you have the capacity to act, then you are now called a
person of full civil capacity.
o In Roman Law, you are called SUI JURIS.

LIMITATIONS & RESTRICTIONS OF 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. (32a)

Art. 39. The following circumstances, among others, modify or limit capacity to act: age, insanity,
imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence,
insolvency and trusteeship.
The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and
in special laws. Capacity to act is not limited on account of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases
specified by law. (n)
A person’s capacity to act is limited or restricted by certain factors. One cannot perform an act because
of his minority.

- LIMITATIONS (capacity to act)

o Even if you have already acquired the capacity to act there are certain acts that you cannot
perform because your capacity to acts is restricted by law.
o E.G.
 1. Family relation – because of your relations with that person you cannot enter into
a certain contract with that person
 E.g. Husband and wife cannot enter into a contract of sale with each other
because it is limited by law.
 2. Nationality or alienage
 E.g. Aliens cannot acquire land in the Philippines. They may have full civil
capacity. But they cannot enter into contract of sale involving sale of real
property
  3. Insanity, imbecility, deaf-mute

- 2 KINDS OF PERSONS
o 1. natural persons - refer to human beings
o 2. juridical persons - refer to corporations, public or private.

CHAPTER 2 - NATURAL PERSONS

ART 40 - WHEN ACQUIRE 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.
(29a)
ART 41 - WHEN FETUS IS CONSIDERED BORN
Art. 41. For civil purposes, the fetus is 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 hours after its complete delivery from the maternal
womb. (30a)

- ACQUISITION OF CIVIL PERSONALITY by natural person

o GR: from the moment of birth
o BUT, Art 40 also provides for PRESUMPTIVE PERSONALITY.
 That a fetus still in the womb may still be considered to have CIVIL personality
PVDD
 1. that what is done is favorable to the child, and
 2. Must have been delivered under the conditions of art 41:
o a. if the fetus has an intra- uterine life of less than 7 months, he/she
must have survived within 24 hours
o b. if fetus has an intra uterine life of 7 months or more, he/she must
be born alive
o otherwise, he is not considered to have acquired civil personality.
He is not considered born.

 E.g. Act of donation.

 You can to donate to a fetus still in the womb in the mother it an act
favorable to the child.
 If I donate a parcel of land to a fetus still in the womb of my sister, is the
donation valid?
o It depends.
o If the child has an intra uterine life of less than 7 months and died
within 2 or 3 hours from delivery, the child has not acquired civil
personality. And therefore there is no donee.
 The donation is not valid.
o If the child had an intra uterine life of more than 7 months, and
died one hour after delivery,
 the donation is valid.
 Because from the moment of birth, the child has already
acquired personality. There is a donee.
 Donating something to a child in the womb of the mother PVDD the act is
favorable to a child.
 GRATUITOUS DONATION
o What is meant by donation here is the gratuitous donation, not the
onerous donation, where there are many conditions like the
donee has to do something first.
ART 42 – WHEN EXTINGUISH CIVIL PERSONALITY
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. (32a)
- DEATH EXTINGUISHES CIVIL PERSONALITY
- DEATH REQUIRES AMENDMENT OF SUMMONS ON CIVIL ACTION
o Case: Dumlao
 When a civil action is filed against a certain person and summons was served on
him. But at the time the summons is served, the defendant is already dead. So, the
summons was given to his children or surviving spouse.
 Is the service of summons valid?
 NO.
 Because the defendant has no more personality.
 The service of summons to a defendant who is already dead is not a valid service of
summons. The complaint must have to be amended to put as defendant the heirs of
the deceased defendant.

- DEATH EXTINGUISHES CRIMINAL LIABILITY, BUT NOT CIVIL LIABILITY

o When a person dies, he loses his personality. His criminal liabilities are extinguished. But his
civil liability is not.
- DEATH NULLIFIES SPA
o Case: Ralios vs Gochan
 SC :a special power of attorney executed in favor of an agent automatically becomes
null and void once the grantor dies.
 He executed SPA to a certain person to sell his real property.
 Later on, the grantor or owner of the land died. But despite the knowledge that the
grantor was already dead, the agent continued to deal with the property. And the
buyer good it in good faith.
 SC said, even if the buyer is in good faith, it does not make the sale valid. Because the
moment the owner of the land dies, the agency that he made by way of SPA is
automatically terminated. Because the grantor no longer has personality from the
moment of death.

ART 43 – RULE ON SURVIVORSHIP

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. (33)

- RULE 131 SEC 5 RULES OF COURT NOT APPLICABLE

o In the rules of court, there is an enumeration that when a person dies together with his heirs
and they died at the same time, there is a presumption of who between them died ahead.
o But RULE 131 will not apply here because it refers to a situation where two persons call to
succeed to each other, died almost at the same time and we do not know who died ahead.
o If we do not know who died first, we do not apply the rules of court. We apply art 43 of NCC
because it is very specific.
o Whoever alleged the first death shall prove it so that he can inherit. OW, it is presumed that
they died at the same time, and there shall be no transmission of rights from one to another.
CHAPTER 3 - JURIDICAL PERSONS
- When we talk of juridical persons, we are normally referring to corporations.
- There are two kinds:
o 1. public
o 2. private
ART 44 – WHAT ARE 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. (35a)

- JURIDICAL PERSONS
o What are juridical persons?
 1. state and political subdivisions
 2. public corporations
 3. private corporations
- POLITICAL SUBDIVIONS
o a. province
o b. cities
o c. municipalities
o d. barangays
 -that is why they can sue and enter into contracts and be held liable
- PUBLIC CORPORATIONS
o -GOCC’s
- PRIVATE CORPORATIONS
o a. private corporations
o b. partnership
o c. associations duly registered with SEC
- ACQUISITION OF PERSONALITY
o When does a public corporation acquire personality?
 From the moment of its creation. It is created by law from the moment the law took
effect.
o POLITICAL SUBDIVISIONS
 are created by law like cities and municipalities. The law creating the city is called a
CHARTER.
 The moment it is approved, then that city acquires personality.
o GOCC’s acquire personality
 from the moment they are created by law.
 The moment the law is approved, they acquire personality.
o PIVATE CORPORATIONS acquire personality
 from the moment their ARTICLES OF INCORPORATION is approved by SEC.
 That is true with partnership and other associations for profits.
- We will not discuss citizenship and domicile.

NEW FAMILY CODE OF THE PHILIPPINES

- HISTORY
o DRAFTING – IBP AND CCRC
 The drafting started as early as 1980. There were already
 clamors from the different sectors of Philippine society to
 change the provisions of the NCC pertaining to family
 relation because the NCC was drafted after the WWII and
 took effect in 1950.
 The law on Family Relations from 52 to 400 of NCC contains
 provisions that were taken from Spanish Civil Code. So
 several sectors in Philippine society ere saying that these
 provisions were no longer attuned to the Philippine society
  so it has to be changed.
 So the first move was done by the Integrated Bar of the
 Philippines; the board of governors of the IBP passed a
 resolution calling for the drafting of the NCC. They made a
 draft of the Family Code and submitted it to the UP Law
 Center for revision of civil law headed by Justice JBL Reyes.
 The Civil Code Revision Committee in the UP law center was
 tasked by the government to make the draft. So it was
 started by IBP and finished by CCRC.
 The plan was to submit a draft to the congress to be
 approved by the latter to make it into a law.
 ABOLITION OF CONGRESS IN REBVOLUTIONARY
 GOVERNMENT
 But when CCRC finished the draft, there was no Philippine
 congress anymore. They were overtaken by important
 events in our country – EDSA Revolution. In 1986, Marcos
 was driven out of the country and Aquino became the
 president under a Revolutionary Government. She abolished
 the Congress (Batasang Pambansa) which composed mostly
 of Marcos loyalist. It was a revolutionary government for
 about 2 years.
o APPROVAL BY THE PRESIDENT
 Under the revolutionary government, legislative powers were
 vested in the president. So when the draft of the NCC was
 finished, there was no congress to whom they will submit.
 So they gave it to Aquino. She was the one who approved
 the draft and made it into a law by virtue of Executive No.
 209, on July 6, 1987, OW known as The New Family Code of
 the Philippines.
 EO 209 was later on amended 11 days after it was approved.
 Because there were provisions that were amended. Among
 those provisions were are art 36, psychological incapacity
 and art 26, 2nd paragraph, divorce by foreigner spouse.
 These were introduced by virtue of EO 227, effective July 17,
 1987.
- EFFECTIVITY OF FAMILY CODE
o Family Code of the Philippines as approved by Aquino
o pursuant to EO 209 provides that it shall take effect 1 year
o after its publication. It was approved by Aquino on July 6
o and amended on July 17, 1987. So they immediately
o published it in major newspapers in the Philippines, the last
o publication came out in Philippine Chronicle Newspaper in
o Aug 4, 1987.
o So one year after Aug 4, 1987 is supposed to be Aug 4, 1988.
o But how come Family Code was declared to have taken
o effect on Aug 3, 1988?
o Because 1987 happens to be a leap year. So minus one day.
o Case: Montiquillo vs Priva
o SC ruled that the New Family code that was approved by
o Aquino pursuant to EO 209, as amended by EO 227 formally
o took effect on AUGUST 3, 1988.

TITLE I - MARRIAGE
Chapter 1. Requisites of Marriage

ART 1 – DEFINITION OF MARRIAGE

Article 1.
Marriage is a special contract of permanent union between a man and a
woman entered into in accordance with law for the establishment of
conjugal and family life.
It is the foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations
during the marriage within the limits provided by this Code. (52a)

- The new definition is already very long.

- The old NCC defines marriage in one sentence – an inviolable
- social institution which the law cherishes and protects.
- BETWEEN A MAN AND A WOMAN
o NCC was drafted in 1947 and 48 right after the war and at the
o time, they never perceived that it will be easy to change the
o sex of the person; to make a man look like a woman through
o medical intervention.
o The law makes it clear that the parties should be a man and a
o woman. With this definition, it is clear that SAME SEX MARRIAGE IS NOT ALLOWED in the
Philippines.
- BY BIRTH
o According to the framers of Family Code, member of the
o Committee was Justice Puno. He said that what is meant by
o art 1 is a man and a woman by birth. Meaning, even if there
o was medical intervention, even if there was a sex
o reassignment surgery, it will not make a man into a woman
o for purposes of marriage.
o And that was his view. Until SC was confronted with the case
o that has an issue on whether sex reassignment surgery
o makes a man into a woman for purposes of marriage.
- SEX REASSIGNMENT SURGERY
o Case: Windy Mendoza (only up to CA)
 He had a sex change in Singapore and when he returned to
 Cebu, he filed a petition in the RTC Cebu for the correction
 of entry in the birth certificate to change his name and his
 sex.
 The judge denied the petition on the ground that there is
 nothing wrong with his birth certificate.
o Case: Sylverio vs Republic GR 174689, Oct 22, 2007
 The RTC granted the petition of Sylverio to change his birth
 certificate from male to female. The office of SolGen
 appealed to CA and CA reversed the RTC. Sylverio went up
 to SC.
 Issue: is a man who had a successful sexual reassignment
 surgery considered a woman now for purposes of marriage?
 SC said, petitions for corrections of entry in the birth
 certificate is allowed only when there are clerical or
 typographical error in the birth certificate.
 In this case, the successful sex reassignment surgery is not
  considered an error in the birth certificate. SC denied the
 petition.
 Sex reassignment surgery or sex change does not make a
 man into a woman. A petition for correction of entry in the
 birth certificate of a person who underwent sex
 reassignment surgery praying that the entry on sex in his
 birth certificate be changed from male to female, and that
 his name from Romel Jacinto Dante Sylverio be changed to
 Melly Sylverio has no basis in law.
 There is no law that allows the change of entry in the birth
 certificate as to sex on the ground of sex reassignment.
- HERMAPHRODITES
o What about if the person has two sex organs? Does it mean
o that that person can be a man or a woman for purposes of
o remarriage?
o Case: Republic vs Jennifer Kagandahan
 A person who has two sex organs is called by law as
 INTERSEX.
 Where a person is biologically intersexed, the determining
 factor of his gender classification would be what the
 individual having reached the age of majority with good
 reason thinks of his or her sex.
 Sexual development in cases of intersexed persons makes
 the gender classification at birth inconclusive. It is at the
 maturity that the gender of the person like the respondent is
 fixed.
 In this case, as she grew up, she felt like she was a woman.
 But what was placed in her birth certificate was male. So she
 filed for correction of his birth certificate from male to
 female.
 SC allowed it. SC said that what the doctor placed in the
 birth certificate is not conclusive. So do not determine the
 sex at the time of birth. It is the person himself who knows if
 he is a man or a woman as she grows up.
- VALIDITY OF MARRIAGE IS DETERMINED BY THE LAW
PREVAILING AT THE TIME OF CELEBRATION
o Validity of marriage is determined by the law prevailing at the
o time of celebration, not at the time you want the marriage
o to be declared void.
o Whether the marriage is valid or not, you look at the law
o prevailing at the time the marriage is celebrated.
- SPECIAL CONTRACT
o Marriage is defined as a special contract between a man and
o a woman. It must be distinguished form an ordinary
o contract.
o M: entered only by two persons of different sexes
o O: entered by 2 or more persons of any sex
o M: subject to law
o -EXPT: property relations (allowed to stipulate)
o -in marriage settlement
o 1. absolute community
o 2. conjugal partnership
o 3. complete separation
 o O: subject to stipulations of the parties
- INVIOLABLE SOCIAL INSTITUTION WHICH THE LAW
CHERISHES AND PROTECT
o Marriage is an inviolable social institution which the law
o cherishes and protects. And because of that, the
o government and our law itself is mandated to protect
o marriages from any discriminatory policies specially in
o matter of hiring employees.
o Marriage as a contract cannot be restricted by discriminatory
o policies of individual or corporation.
o Case: PT&T vs NLRC
 There is a provision in the employment contract that
 women employees in the company should not get married.
 This provision of the company was question.
 SC invalidated the policy because it is discriminatory to
 marriage. It is the policy of the state to encourage marriage.
o Case: Duncan vs Glacso
 There is a policy in the company that deals with the sale of
 drugs. And there is a provision on the employment contract
 that an employee of the company cannot marry an
 employee of a competing drug company.
 The policy of the company was questioned.
 Sc said it is a valid company policy because there is a bona
 fide occupational qualification involved. There is a valid basis
 for that policy of the company.
 The reason is, if you are an employee of the company, you
 cannot marry the employee of another company because
 you might leak out the company secrets specially that you
 are competitors.
- Case: Starpaper Corp. vs Symbol
o There was a provision in the employment contract that no
o employees of the same company can marry each other. (Coemployee)
o SC said that it does not find any valid occupational
o qualifications here. There is no danger of leakage of
o information. So it is a discriminatory policy against marriage
o which the court should not allow.

- REQUISITES FOR A VALID MARRIAGE

o There are two sets of requirements that you must comply for
o your marriage to be considered valid:
 1. essential requirements art 2
 2. formal requirement art 3
ART 2 – ESSENTIAL REQUISITES
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female;
and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
- ESSENTIAL REQUISITES
o 1.a. legal capacity;
o 1.b. male and female
- LEGAL CAPACITY
o means that the parties must be of legal age – 18. This is also the marriageable age.
o 2.a. consent freely given
 o 2.b. in presence of solemnizing officer
o What happens if the consent was not freely given and
o acquired through use of fraud, intimidation and undue
o influence? Does it make the marriage void ab initio?
 NO. the marriage is only voidable under art 45.

o A VIODABLE MARRIAGE is a marriage that is considered

valid until it is annulled.
- ESSENTIAL REQUISITE 1 – LEGAL CAPACITY
o The legal capacity that we are talking of here is:
o Parties are male and female
o At least 18 years of age
o Not under impediments mentioned in art 37 and 38
 LEGAL IMPEDIMENTS UNDER ART 37 AND 38
 1. ART 37 – Incestuous marriage
 2. ART 38 – Marriage against public policy
- MARRIAGEABLE AGE
o Before it was 16 for the male and 14 for the female.
o It is increased now to 18.
- LEGAL CAPACITY UNDER ART 5
o Legal capacity means:
o 1. you marry someone who belongs to the opposite sex
o 2. both are at least 18 years of age
o 3. neither is suffering legal impediments to marry

ART 3 – FORMAL REQUISITES

Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age. (53a, 55a)
- FORMAL REQUISITES
o 1. authority of solemnizing officer
o 2. valid marriage license
o 3. marriage ceremony
- FORMAL REQUISITE 1 - AUTHORITY OF SOLEMNIZING OFFICER
o Authority of solemnizing officer means that the person who solemnized the marriage must
be authorized by law to olemnize the marriage.

ART 7 – PERSONS AUTHORIZED TO SOLEMNIZE MARRIAGE

Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or
religious sect and registered with the civil registrar general, acting within the limits of the written
authority granted by his church or religious sect and provided that at least one of the contracting
parties belongs to the solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter,
during a military operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)
o 1. incumbent members of judiciary
 -must be incumbent
  -must be within court’s jurisdiction
o 2. priest, rabbi, imam, or minister of any church
 -must be authorized by own religion to solemnize marriage
 -must be duly registered in the office of the civil registrar general
 -one of the parties to marriage is a member of religious sect
o 3. ship captain, airplane pilots
 -must be done under ARTICULO MORTIS, or one party is at the point of death
 -must be done inside ship or vessel or airplane
 -ship must be in transitu (includes brief stop over)
o 4. military commanders
 -must be done inside the military area of operation
 -must be done during on going military operation
 -one of the parties under articulo mortis
 -MILITARY COMMANDER
o -refers to a military commander of a unit (battalion
o level) has an assigned chaplain, but the chaplain is not
o around;
o -normally in a rank of a colonel, and whoever is next in
o rank, but up to the second lieutenant only
o -must be a commissioned officer
o 5. consuls assigned in the foreign country
 -must be done inside the consular office
 -both parties must be Filipinos (art 10)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a
consul-general, consul or vice-consul of the Republic of the Philippines. The
issuance of the marriage license and the duties of the local civil registrar and
of the solemnizing officer with regard to the celebration of marriage shall be
performed by said consular official. (75a)
 -marriage license requirement must be complied with
 -issued by the consul acting like the Local Civil Registrar
 -OW void
o 6. city and municipal mayors (not included in FC)
 -as stated in LGC
- MARRIAGE UNDER ARTICULO MORTIS
o How is marriage under articulo mortis done?
o One party is at the point of death and is normally done by ship captain airplane pilot or
military commander.
o If he could no longer sign the marriage contract, then it is enough that his name is written in
the contract b one of the two witnesses. and one of the two witnesses may sign for him. But
this must be attested to by the solemnizing officer; he will certify that the marriage was done
under articulo mortis
o Can a judge or a roman catholic priest solemnize marriage under articulo mortis?
 YES. The judge and the priest can solomenize marriage whether it is regular or at
articulo mortis. But a ship captain and military commander can only solemnize
under articulo mortis.
- ART 35 (2) – EFFECT OF NO AUTHORTY TO SOLEMNIZE MARRIAGE
o GR: it would make the marriage void.
o EXPT: if one of the party of the marriage believes in good faith that he is authorized to
solemnize the marriage, then the marriage is considered valid (art 35 par 2)
Art. 35. The following marriages shall be void from the beginning:
(2) Those solemnized by any person not legally authorized to perform
marriages unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the legal
 authority to do so;
o This is one instance where a void marriage is cured by the good faith of the party to a
marriage.
o Remember that the GR is that when the marriage is void, it is always void no matter if the
parties are in good faith or not.
o But in this aspect, because of the express provision of art 35, par 2, the good faith of one of
the party to the marriage will cure the defect of the marriage.
o Here is marriage that was solemnized by someone who pretended to be a judge or a priest.
But because one of the party was in good faith, the marriage will be considered as
o valid.
o Case:
 There was a lawyer whose girlfriend was nagging him to get married and he is not
sure yet. He found someone who is not authorized by law to get married.
 This happened before the FC. And under the old law, if the person does not have the
authority to solemnize the marriage, the marriage is not valid. No exception.
 If this same incident will happen now. The marriage is still valid.
- FORMAL REQUISITE 2 – VALID MARRIAGE LICENSE WHERE TO APPLY
o Where do you get the marriage license?
o Apply in the office of the Local Civil Registrar where either of the parties resides.
- EFFECT IF NOT GET LICENSE IN THE PLACE WHERE EITHER RESIDES
o Or if they acquired their marriage license not in the LCR where they reside? Is the marriage
void?
 NO. The marriage is only voidable.
o That is only considered an irregularity
o Art 4 – this is only a defect in formal requisite. If there is total absence of any of the essential
or formal marriage, the marriage is void. But if there is only a defect in the essential
requisite, the marriage is only voidable. (art 45)
o So the marriage remain to be valid. The irregularity in the formal requisite does not affect
the validity of the marriage.
o But the person responsible for that irregularity can be prosecuted and made to answer for
his violation.
- EFFECT IF NO LICENSE
o What happens if there is no valid marriage license?
o The marriage is not valid. Specially if there is no license at all, then the marriage is null and
void.
- WHEN MARRIAGE IS CONSIDERED VOID ON GROUND OF LACK OF MARRIAGE LICENSE
o To be considered void on the ground of absence of a marriage license, the law requires that
the absence of the marriage license must be apparent in the marriage contract, or at the very
least supported by a registration in the local civil registrar that no such marriage license was
issued to the party.
- BURDEN OF PROOF
o So if you claim that your marriage is not valid because there was no valid marriage license, it
is incumbent upon you to prove that there is no marriage license.
o And how do you prove it?
o You can show in the marriage contract which is attached to the copy marriage license. The
marriage contract itself shows the marriage license, when and where it is issued, the
marriage license number.
o If it is not showed there, then you get a certification from the local civil registrar that no such
marriage license was issued to the parties.
o This is the best evidence to prove that there is no marriage license before the court will
declare the marriage void on that ground.
- MARRIAGE LICENSE MUST BE EXISTING AND ISSUED AT TIME OF CEREMONY
 o If there is marriage license before the marriage and the parties merely forgot to bring it, the
marriage is still valid.
- 2 SEPARATE APPLICATIONS
o Both parties must fill up an application form. There are 2 separate applications.

ART 11 - CONTENTS OF APPLICATION

- It contains the information about your personal status and
circumstances like your name, address, relationship of the
other party, etc.
Art. 11. Where a marriage license is required, each of the contracting parties
shall file separately a sworn application for such license with the proper local
civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having
charge, in case the contracting party has neither father nor mother and is
under the age of twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit
their residence certificates in any formality in connection with the securing of
the marriage license. (59a)

ART 12 - DOCUMENTS ATTACHED TO APPLICATION

Art. 12.
- The local civil registrar, upon receiving such application, shall require the presentation of the original
birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies
of such documents duly attested by the persons having custody of the originals.
- These certificates or certified copies of the documents by this Article need not be sworn to and shall
be exempt from the documentary stamp tax. The signature and official title of the person issuing the
certificate shall be sufficient proof of its authenticity.
- If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified
copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such
party or of any other person that such birth or baptismal certificate has not yet been received though
the same has been required of the person having custody thereof at least fifteen days prior to the
date of the application, such party may furnish in lieu thereof his current residence certificate or an
instrument drawn up and sworn to before the local civil registrar concerned or any public official
authorized to administer oaths. Such instrument shall contain the sworn declaration of two
witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting
party and of his or her parents, if known, and the place and date of birth of such party. The nearest of
kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.
o 1. birth certificate
 to determine if you are of legal age
 if not available (present, priority)
 a. baptismal certificate
 b. affidavit of two persons attesting to the fact that
 you were born on that date and that you are already of legal age
  -need not be a disinterested person
 -in old law, they must not be related to you
 -preferably must be the nearest of kins
o 2. parental consent (age 18-21) or parental advice (age 21-25)
o 3. certificate of marriage counseling (age 18-25)
- INSTANCES WHEN PRESENTATION OF BIRTH CERTIFICATE MAY BE DISPENSED WITH
o 1. parent s personally appear in the Office of Civil Registrar and vouch on you legal age
 -they will be asked by the civil registrar to execute a ready form stating that their
son or daughter is already 18 and it will be notarized. OW parents will be charged of
perjury
o 2. LCR by looking at the face of the applicant is convinced that he is of legal age
o 3. if applicant had already been married before
 -instead, required to present proof of dissolution of marriage by law (ex. death
certificate, decree of annulment of first marriage)

ART 16 – WHEN PARENTAL CONSENT OR PARENTAL ADVICE IS REQUIRED

Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned
shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest,
imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage
counselor duly accredited by the proper government agency to the effect that the contracting parties
have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall
suspend the issuance of the marriage license for a period of three months from the completion of the
publication of the application. Issuance of the marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the other party
must be present at the counseling referred to in the preceding paragraph. (n)
- PERENTAL CONSENT
o When the party to the marriage is between the age of 18 to 21, PERENTAL CONSENT IS
NEEDED.
o If the party is exactly 21 years old, what is needed is parental consent.
- PARENTAL CONSENT – HOW DONE
o How is parental consent given by the parents?
o 1. personal
 Either the parents will also personally go to the LCR and give their consent.
o 2. through affidavit of consent
 Or if the parents are residing in another place, it could be an affidavit of consent,
which must be attested to by at least 2 witnesses.

ART 45 (1) EFFECT OF VIOLATION

- What if you are between 18 to 21 and contracted marriage without parents’ consent, what is the
effect? Will the marriage be void?
- The marriage is only VOIDABLE under art 45 par 1.
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian
or person having substitute parental authority over the party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
And a voidable marriage is valid until it is annulled.
- PARENTAL ADVICE
o If a party is between 21 to 25, PEARNTAL ADVICE is needed.
o One day after 21 up to 25.
- EFFECT OF VIOLATION
- What happens if there is no parental advice presented to
- the LCR?
 o The only effect is that the LCR may withhold or delay the issuance of a marriage license to
another 3 months.
o So instead of issuing the marriage license within 10 days, after the lapse of 10 days, the LCR
may make you wait for another 3 months

ART 17 – MARRIAGE COUNSELING

Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned
shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest,
imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage
counselor duly accredited by the proper government agency to the effect that the contracting parties
have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall
suspend the issuance of the marriage license for a period of three months from the completion of the
publication of the application. Issuance of the marriage license within the prohibited period shall
subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the other party
must be present at the counseling referred to in the preceding paragraph. (n)
- If one of the parties is between 18 to 21 or 21 to 25, where parental consent or parental advice is
required, there is an additional requirement. Both parties must undergo
- MARRIAGE COUNSELING and preset a certificate of marriage counseling.
o IF ONLY ONE PARTY IS 18-25
o If the woman is at the age of 22 and is required to present parental advice, and the man is
already 30 years old, does it mean that only the woman is required to attend the
o marriage counseling?
 NO. Both of them must attend. This is what we cal in the church as PRE CANA.
o So this is actually about family planning, duties of the husband and wife.

ART 17, 18, 19 – DUTIES OF LCR UPON RECEIPT OF

APPLICATION OF MARRIAGE LICENSE
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences
of the applicants for a marriage license and other data given in the applications. The notice shall be
posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located
in a conspicuous place within the building and accessible to the general public. This notice shall request
all persons having knowledge of any impediment to the marriage to advise the local civil registrar
thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall
note down the particulars thereof and his findings thereon in the application for marriage license, but
shall nonetheless issue said license after the completion of the period of publication, unless ordered
otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be
charged for the petition nor a corresponding bond required for the issuances of the order. (64a)

Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations
before the issuance of the marriage license.
No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It
shall, however, be issued free of charge to indigent parties, that is those who have no visible means of
income or whose income is insufficient for their subsistence a fact established by their affidavit, or by
their oath before the local civil registrar. (65a)

- Arts 17-19 refers to the duties and responsibilities of LCR.

o 1. verification
 verifying all requirements attached to the application
o 2. publication
 -post application in the bulletin board outside his office
 -application will be made known to the community
  -period of 10 days (required to wait)
o 3. issuance of license
- PUPOSE OF PUBLICATION
o If they know of any legal impediment on the part of the parties, then they can come forward
and inform the LCR.
o EFFECT IF 3RD P INFORMS LCR OF THE PARTY’S IMPEDIMENT
o What happens if someone inform the LCR that the man applying for a marriage license was
already married? Can the LCR refuse to issue the marriage license?
 NO. Art 18. Even if he is aware of legal impediment, he still has to issue the license
except when he is restrained or ordered by the court.
o The reason for this is because providing OW would be used by unscrupulous local civil
registrar as a money making venture. We should not give discretion to the LCR.
o So now, LCR is duty bound to issue the license even if he is aware that the party has legal
impediments.
o What he should do is to tell the informer to file a case against LCR in court for injunction so
that he will be restrained from issuing the license.
o And if he would really want to stop the issuance of the marriage license, he himself can go to
court and ask the court to stop him from issuing the license. (I file a case in court to stop
myself ☺!)
- EFFECT OF NON PAYMENT OF FEE
o When you apply for a marriage license you have to pay for the fee for around P300.00.
o But if you cannot pay, you will still be given marriage license. No person should be deprived
of right to marry by reason of poverty.

ART 20 – VALIDITY OF MARRIAGE LICENSE

Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days
from the date of issue, and shall be deemed automatically canceled at the expiration of the said period if
the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on
the face of every license issued. (65a)
- Once a marriage license is issued by LCR, that license is valid for 120 days. And it can be used
anywhere in the Philippines.
- If you see a marriage license, it is printed there in bold letter that it is valid for 120 days.
- EFFECT IF 120 DAYS HAVE LAPSED
o What happens if the marriage was solemnized after 120 days?
o The marriage is VOID. Because when the marriage license expires after 120 days, it has no
more effect.
- FORMAL REQUISITE 3 – MARRIAGE CEREMONY
- REQUISITES (NO PRESCRIBED FORM OF CEREMONY)
o There is no prescribed form of ceremony under the law. It is enough that (1) both parties
will appear before a solemnizing officer authorized by law to solemnize the marriage. And
they do it in front of (2) two witnesses of legal age and they (3) manifest in front of the
solemnizing officer that they take each other as husband and wife.
- COMMON LAW MARRIAGE, NOT RECOGNIZED
o There should be a marriage ceremony. That is why common law marriage which is
recognized in other countries could never be considered as valid in the Philippines.
o There is that law in art 26, LEX LOCI CELEBRATIONIS, a marriage solemnized abroad, if valid
there shall also be considered valid here.
o Case: Eugenio vs Deres
 What about if A and B residing in London, living together as husband and wife in
London , and under the law of England where common law marriage is recognized,
they are now considered as married.
 When they come to the Philippines, will they be considered as husband and wife?
 NO.
 Will their marriage be considered as valid here?
  NO.
 Even if it is recognized as valid in England, it could not be recognized as valid here
because there was no marriage ceremony.
 A common law marriage is recognized in England when a man and a woman have
been living together by a number of years will be considered as married will not be
recognized here. A man and a woman who cohabit without a marriage ceremony
may be considered as married in common law jurisdiction but not in the Philippines.
 MARRIAGE BY PROXY
 Marriage by proxy is not valid. Both must appear before the solemnizing
officer where they declare themselves as husband and wife.
 If marriage by proxy is allowed in Germany as represented by SPA, is it
valid here? Shall we apply lex loci celebrationis applicable?
o NO.
o This is an exception.
o One of the requirements for the validity of the marriage is that both
parties must personally appear before the solemnizing officer and
declare that they take each other as husband and wife.
- VENUE OF MARRIAGE
o Where should the marriage be celebrated?
o If it is a judge who solemnized the marriage, it should be the court room or chamber.
o Priest, it should be in a chapel or chapel or in a mosque if an imam.
o Military commander, ship captain or plane pilot, it should be inside the area of military
operation, vessel or plane respectively.
o Consul, at the consular office.
- WHEN REQUIREMENT OF VENUE MAY BE DISPENSED WITH
o What about marriage done outside the courtroom or outside the church done by a priest?
 YES.
o PVDD:
 1. Written request
 2. Valid reason/justification
o Example. If both parties are celebrities, and they want privacy, then they may request the
judge to solemnize the wedding elsewhere.

ART 4 – EFFECT OF ABSENCE OF ESSENTIAL OR FORMAL

- REQUISITES & DEFECT IN ESSENTIAL REQUISITE
Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio,
except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly, criminally and administratively liable. (n)
- EFFECT OF ABSENCE OF FORMAL AND ESSENTIAL REQUISITE:
o GR: void ab initio
o EXPT: art 35 (2)
- EFFECT OF DEFECT OF ESSENTIAL REQUISITE:
o RULE: voidable – valid until annulled civil, criminal and administrative liability of
responsible party
- DEFECT IN ESSENTIAL REQUISITE here refers to DEFECT IN
THE ESSENTIAL REQUISITE OF CONSENT
o When the consent to the marriage is defective, it is vitiated
o by fraud, intimidation, or undue influence, the marriage is
o not void but only voidable under art 45. And so it is valid
o until annulled.
- EFFECT OF DEFECT OF FORMAL REQUISITE:
o RULE: valid
- LIABILITY ON RESPONSIBLE PERSON
o Irregularity of the formal requisites however does not affect the validity of the marriage. Any
o irregularity in the formal requisite only holds the person responsible may be held liable. But
the marriage is valid.
 Example. Valid marriage license. The Local Civil Registrar issued a license to the
parties despite the fact that they have not waited the 10 day waiting period. If the
registrar was discovered, he may be fired.
 Example. You apply in the Office of the Civil Registrar where you reside. If they
applied in other places other than where they reside, this is only an irregularity. It
will not affect the validity of their marriage.
 Example. Marriage solemnized by judge outside his jurisdiction.
o Case: Navarro vs Judge Dumagtoy
 A marriage was solemnized by Judge Dumagtoy outside his territorial jurisdiction. Is
the marriage void?
 SC said, NO. That is only an irregularity.
- Basis: Art 35 par 2.
Art. 35. The following marriages shall be void from the beginning:
(2) Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
o Here the parties are in good faith because they do not know that the authority of the judge is
confined in his territorial jurisdiction
o But the person who is responsible for the irregularity – the judge will be liable and ordered
to pay a fine of 20k for ignorance of the law.
- MARRIAGE LICENSE MUST BE EXISTING AT TIME OF CEREMONY
o It is important that the marriage license must be existing or already issued at the time of the
marriage. If the marriage was solemnized before the marriage license was issued…
o Case: Aranez vs Occiano, April 11, 2002
 A judge solemnized a marriage to a friend despite the fact that there was no
marriage license issued.
 The couple applied for a marriage license in the office of the civil registrar. They
were made to wait for a couple of days. They sat the date of the wedding after the 10
day period. But on the day of the wedding, there was no issued license because the
Local Civil Registrar was out of town on a vacation.
 So when the judge arrived, and asked for the marriage license, they promised they
would give the license right after the issuance. The ceremony was already prepared
for and they have the guests already arriving. The judge solemnized the marriage
with the promise that they will present the license after the registrar arrives.
 Later on the validity of the marriage was questioned.
 SC said the marriage is not valid. A marriage solemnized without a valid marriage
license issued prior to the celebration of the marriage is not valid. The LICENSE
MUST
 COME BEFORE THE CELEBRATION OF THE MARRIAGE.
 Because in this case, the children of the first wife questioned the validity of the
second marriage because of the claims of the pension and death benefits. And
because of that, the woman who did not get the pension filed an administrative case
against the judge for being negligent and ignorant of the law.
- FAILURE TO BRING THE ISSUED MARRIAGE LICENSE
o Case: Cosca vs Palaypayon
 In this case however, the SC said, that if there was already a license but the license
was not presented to the solemnizing officer because he failed to bring it, that will
be alright. It will not affect the validity of the marriage.
 SC said this is ok because there was already a marriage license issued before the
marriage. They just failed to present it.
 - ABSENCE OF MARRIAGE CEREMONY
o Case: Morego vs People of the Philippines, Feb 6, 2004
 This is a marriage that involves absence of marriage ceremony.
 A man and a woman contracted marriage before a minister in their religion. The
woman is a balikbayan in Canada and met a former board mate in Tagbilaran,
decided to get married. They contacted the minister of the religion of the man
somewhere in a remote town in Bohol at 10 am.
 But they did not arrive in time. The minister waited from 10 to 11. They arrived at
almost 12nn but the minister was
 already in a hurry. So the minister told them to just sign the marriage contract. He
did not solemnize the marriage.
 The woman went back to Canada. She filed for divorce there.
 The man found another woman and married her. He was sued for bigamy. He was
convicted in bigamy in trial court and CA.
 SC said there is no bigamy because there is no valid marriage between him and the
woman in Canada. Absence in marriage ceremony makes the marriage null and void.
- COMMENT: if we go to art 40, you will notice that there are
o cases similar to this where SC declared that there is bigamy.
o There is one case that the man says that there is no bigamy because there is no valid
marriage license in the first marriage. But the SC said no, you should have declared the first
marriage void first before you contract a second marriage.
o But in this case, there was no marriage ceremony. It is as if there was no marriage at all.
There was no marriage that took place.
o It is different from a marriage done when the marriage license is defective. Because even if it
is defective, there is marriage.
o So what the SC is saying is that, when there is absence of ceremony, there is no marriage at
all. So that is void.
o
July 2, 2011
-first 56 mins of the meeting is filed in the notes of last
meeting
-last meeting transcriptions are no longer in order

ART 21 – MARRIAGE BY FOREIGNERS

Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be
necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to
contract marriage, issued by their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein
required, submit an affidavit stating the circumstances showing such capacity to contract marriage.
(66a)

- In the case of foreigners, can foreigners contract marriage in the Philippines?

o YES.
- REQUIRED TO GET MARRIAGE LICENSE
o Are they exempt from the marriage license?
 NO.
 The foreigner must also apply for a marriage license.
- CERTIFICATE OF LEGAL CAPACITY TO CONTRACT MARRIAGE
- However, when he applies for a marriage license, he is not required anymore to present his birth
certificate. Instead of a birth certificate, he must present a CERTIFICATE OF LEGAL CAPACITY TO
CONTRACT MARRIAGE which is issued by his own embassy in the Philippines.
- Why is his so?
o If in his own country, a fifteen year old man can marry, can he marry in the Philippines even
if he is 15 years old?
  YES.
 If he could get a certificate of legal capacity to marry.
 The reason for this is NATIONALITY THEORY under art 15. – laws relating to family
rights, duties, status, conditions and legal capacity of a person is governed by his
national law wherever he may go.
o The capacity of the person to marry is governed by his national law.
- MARRIAGE BETWEEN 2 FOREIGNERS
o If both parties are foreigners, they can still get married in the Philippines. Both of them must
apply for a marriage license and present a certificate of legal capacity to contract marriage
issued by their respective embassy.
o The marriage can be solemnized in the Philippines by a Filipino solemnizer.
- MARRIAGE CERTIFICATE
o After the application, wait for 10 days for the issuance. One issued, the solemnization of the
marriage. After that, they will be asked to sign the marriage contract or known as MARRIAGE
CERTIFICATE.
ART 22 – WHAT ARE STATED
Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband
and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriage provided for
in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent in appropriate
cases;
(6) That either or both of the contracting parties have complied with the legal requirement regarding
parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof. (67a)
ART 23 – WHO ARE FURNISHED COPIES
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting
parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and
triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil
registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local
civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing
officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the
marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the
contracting party regarding the solemnization of the marriage in place other than those mentioned in
Article 8. (68a)

- The solemnizing officer will prepare 4 copies of marriage contract, to be signed by the parties and
their witnesses (principal sponsors)
- Where will the 4 copies go?
o 1. parties
o 2 & 3. local civil registrar submitted by solemnizing officer
o 4. solemnizing officer
 this will be stapled with the marriage license and
 other papers submitted to him
- Why 2 copies to LCR?
o Because one is forwarded to Manila in NSO and the other is with the LCR.
- EFFECT IF NO MARRIAGE CERTIFICATE – NOT AFFECT VALIDITY
o Is marriage certificate an indispensible requirement to the validity of marriage? What
happens if the parties cannot present their marriage contract?
o does it mean that the marriage is not valid?
  NO. In fact, marriage certificate is not among the essential or formal requisites of a
valid marriage in art 2 and 3.
 Absence of marriage certificate will not affect the presumption of existence of
marriage.
- MARRIAGE LICENSE VS MARRIAGE CERTIFICATE
o ML: -issued before marriage by the government
 form of authorization from the government to validly enter into marriage
o MC: -issued by the solemnizing officer
 to prove that he solemnized the marriage
 best evidence to prove marriage
- PROOF OF MARRIAGE
o The best evidence to prove marriage is the marriage contract.
- But that is not the only evidence.
o Case: Progeo vs Reas
 SC said that if two persons had already been living together for so many years but
they could not present or produce their marriage certificate, it does not mean that
they are not married. In fact, the law presumes that they are lawfully married.
 So the legal presumption is in favor of the valid marriage.
 Why is this so?
 Because the law favors legitimacy over illegitimacy. The law favors
marriage over concubinage.
ART 24 – DUTY OF LCR TO PREPARE DOCUMENTS, ADMINISTER OATH
Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title,
and to administer oaths to all interested parties without any charge in both cases. The documents and
affidavits filed in connection with applications for marriage licenses shall be exempt from
documentary stamp tax. (n)

ART 25 – DUTY OF LCR TO RECORD

Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with
him in a registry book strictly in the order in which the same are received. He shall record in said book
the names of the applicants, the date on which the marriage license was issued, and such other data as
may be necessary. (n)

ART 26 FIRST PAR – LEX LOCI CELEBRATIONIS

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (17a)
- LEX LOCI CELEBRATIONIS RULE IN MARRIAGE
o Art 26 was not found in the original draft of the Family Code on July 6, 1897. This was
inserted by way of an amendment introduced by EO 227.
o A marriage celebrated abroad, if valid there is also considered as valid here, except those
marriage are prohibited by:
 1. art 35 (1)
 2. art 35 (4)
 3. art 35 (5)
 4. art 35 (6)
 5. art 36
 6. art 37
 7. art 38
- These articles are the void marriages in the family code.
- Lex loci celebrationis principle is our way of manifesting our acceptance of the principle of
INTERNATIONAL COMITY in international law, that whatever is done in a foreign country which is
considered valid there, we have to respect it as valid here.
- But when it comes to marriage, it is a special contract of permanent union. It is considered by our law
as an inviolable social institution which our law cherishes and protects.
- Therefore, there are marriages which we could not recognize as valid here even though they are valid
abroad because our country is the one that decides what is morally right here within the Philippines.
- So the exceptions to the lex loci celebrationis rule are those found in the enumeration (VOID
MARRIAGE):

- A. ART 35 – NON COMPLIANCE WITH THE ESSENTIAL AND FORMAL REQUIREMENT OF LAW
o 1. art 35 (1) – MARRIAGE OF A MINOR (below 18)
 if a 17 year old Filipina woman contracted marriage abroad, where it was
considered valid in the place it was solemnized,
 it is NOT CONSIDERED VALID here
 because it falls under the exception.
o 2. art 35 (4) – BIGAMOUS MARRIAGE
 if the marriage abroad is already your second marriage and you have not dissolved
your first marriage in the Philippines,
 the second will never be recognized as valid in the Philippines even if
recognized as valid there.
o 3. art 35 (5) – MISTAKE IN IDENTITY
 if you were mistaken in marrying the person, you did not know that the one who
appeared is the twin.
o 4. art 35 (6) – NON COMPLIANCE OF REQUIREMENT OF ART
o 53;
 art 53
Art. 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.
 art 52 – (preceding article)
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect third persons. (n)
 -when marriage is dissolved by annulment or by declaration of nullity of
marriage, it is necessary for you to dissolve your partnership before you
can contract another marriage. You have to settle the conjugal partnership
and give the children their presumptive legitime before you marry again.
 If you contract a marriage without complying with this requirement, your marriage
is void.
o 5. art 36 – PSYCHOLOGOCAL INCAPACITY
o 6. art 37 – INCESTUOUS MARRIAGE
 -marriage between parents and children or between siblings
o 7. art 38 – MARRIAGES AGAINST PUBLIC POLICY
 -marriage between
 a. parents in law and children in law
 b. step parents and step children
 c. adopting parents and adopting children
- EFFECT IF CELEBRATED ABROAD
o These void marriages mentioned in the enumeration are void marriages that are not
validated by the fact that it is celebrated abroad and it is considered valid there.
o If you got married in Germany with your German boyfriend without marriage license
presented.
 Is your marriage recognized as valid in the Philippines?
 YES.
 Because it is not one of the exceptions.
 o If the marriage celebrated abroad was solemnized by an ordinary lawyer which is allowed in
that place,
 is it recognized as valid in the Philippines?
 YES.
 Because it is not one of the exceptions.
o IOW there are marriages which should have been void if solemnized in the Philippines. But it
is recognized as valid there. It is recognized as valid here.
o The only exceptions are those enumerated.
- ART 26 SECOND PAR – DIVORCE BY FOREIGNER SPOUSE
o Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As
amended by Executive Order 227)
- REQUISITES TO RECOGNIZE DIVORCE IN THE PHILIPPINES
o 1. marriage between a Filipino and a foreigner (mixed marriage)
o 2. foreigner spouse obtains a divorce abroad
o 3. foreigner is capacitated to remarry
o Meeting these requisites allows us to recognize divorce in the Philippines and allows the
Filipino spouse to remarry.
o Why is this article inserted in the family code?
 Because it has been observed that there are many Filipinas getting married with a
foreigner.
o After getting the divorce decree, under our old law, the Filipina is still married to that man
because we do not recognize divorce. So under our law, she is still bound to that man. That is
unfair.
o If this happens, the Filipina wife can now remarry. Our government will recognize the
divorce obtained by foreigner spouse.
o Art 26 second paragraph serves as an exception to the GR that we do not recognize divorce
and any divorce obtained abroad is not recognized here.
- WHAT THE FILIPINO SPOUSE SHOULD DO TO REMARRY
o When this happens, what will the Filipina wife do?
 Can she immediately remarry?
 NO. She has to follow certain procedures; ask the court to recognize the
divorce decree. File a petition for recognition of foreign judgment
 Case: Garcia Recio vs Recio
 Sc said that the Filipino spouse cannot remarry right away, she must first
have to get a recognition of foreign divorce judgment before she can
remarry.
- ACTION TO FILE – DECLARATORY RELEIF
o What kind of action will you file?
o Case: Republic vs Orbicido
 SC said that appropriate action should have been DECLARATORY RELEIF.
 SC here was accused of judicial legislation. Very controversial.
 2 Filipinos were married in Ozamis City. After marriage, they decided to stay in
Zambuanga. The woman was a nurse. After their 2 children, the wife went to US and
worked as a nurse. While in US, she applied for US citizenship, and was granted. She
filed for divorce against her husband, and was granted. After, she got married with
Innocent Stanly, a US citizen.
 When the husband learned about it, he married another girl. His lawyer filed a
PETITION TO REMARRY.
 SC said that there is no such action as petition to remarry. It is a wrong action. The
proper action should have been DECLARATORY RELEIF where you ask the court to
 declare what is your right under this particular law now that your wife has obtained
a divorce against you.
- CITIZENSHIP REQUIREMENT – AT THE TIME OF DIVORCE, NOT MARRIAGE
o In that case, the lower court granted the petition and acknowledged that the divorce is valid.
Office of SolGEn disagreed and appealed before the CA.
o The argument of SolGen is that art 26 par 2 will not apply to Orbicido because it is true only
if it is a mixed marriage. In this case, both were Filipinos when married SC said that it applies
to Orbicido. The meaning is not confined only to mixed marriage but includes a marriage
between Filipinos where on later on becomes a foreigner at the time she filed a divorce.
o What matter here is that at the time the divorce was filed in US, the wife was already a
foreigner.
- DIVORCE BY FILIPINO SPOUSE WHO OBTAINED THE NATIONALITY OF THE FOREIGNER SPOUSE
o Case: Daqieta vs CA
 A Filipino spouse who filed for divorce against the foreigner spouse is not
capacitated to remarry as the said divorce is not recognized in the Philippines.
Because the Filipino spouse is governed by her natural law.
 But if the Filipino spouse has already acquired the citizenship of her husband by
virtue of marriage and thereafter obtained a divorce against him, such divorce is
considered as valid here. Not because of art 26 but because of our adherence to
nationality principle insofar as status of person is concerned.

- DIVORCE VALID AS TO FOREIGNER SPOUSE

o Case: Van horn vs Romello
 A German who married a Filipina. The German filed for divorce against the Filipina
so she returned to the Philippines. She engaged in a business in Philippines and she
found another man and they lived together.
 The husband is now demanding his share of his now rich Filipina wife because
according to him, the divorce in Germany is not valid in the Philippines.
 SC said he is not entitled. Even if the divorce is recognized as valid in the Philippines,
but the fact that under your national law, you are no longer considered as married
to the Filipina, then you are not entitled to the share of the properties she acquired
o Case: Pilapil vs Ibay Somera
 At the time there was no FC but SC said that even if the divorce obtained abroad is
not valid here, but there are certain effects or consequences to that divorce that we
have to recognize. OW it would be unfair for the Filipino spouse.
 So these are the cases involving art 26.

LUNCH BREAK

CHAPTER 2 - MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT

- These are enumerated in arts 27-34.
- There are four kinds of marriages that are exempt from marriage license:
o 1. marriage under articulo mortis
o 2. marriage in a far and remote place
o 3. marriage between muslims or members of the ethnic cultural minorities.
o 4. ratification of marital cohabitation
ART 27 – MARRIAGE UNDER ARTICULO MORTIS
Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license and shall remain valid even if the ailing party
subsequently survives. (72a)
- This kind of marriage may be performed by a:
o 1. ship captain
o 2. airplane pilot
o 3. military commander
 o 4. priests
o 5. judge
ART 28 – MARRIAGE IN A FAR AND REMOTE PLACE
Art. 28. If the residence of either party is so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar, the marriage may be solemnized
without necessity of a marriage license. (72a)
- FAR AND REMOTE PLACE
o In the old law, the definition of a far and remote place refers to a place that is at least 15
kilometers away from the office of the LCR, which is normally located in the town proper or
poblacion.
o In the FC, the requirement of distance has already been removed. The definition now is that
it is a place not accessible by means of transportation. (jeep, tricycle, pumpboat)
o So even if it is less than 15 km, it may still be considered as a far and remote place.

ART 33 – MARRIAGE BETWEEN MUSLIMS OR MEMBERS OF

THE ETHNIC CULTURAL MINORITIES
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be
performed validly without the necessity of marriage license, provided they are solemnized in
accordance with their customs, rites or practices. (78a)
- PARTIES TO MARRIAGE
o Both parties must be Muslims or members of the ethnic cultural minorities.
o REQUISITES
 Before, marriage between Muslims was already allowed without license but there is
a condition that it must be performed within Muslim area.
 Now, it is allowed anywhere PVDD:
 1. done in their mosques and
 2. done in accordance with the rights and practices of Muslims.

Art 34 – RATIFICATION OF MARITAL COHABITATION

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together
as husband and wife for at least five years and without any legal impediment to marry each other. The
contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to
administer oaths. The solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the marriage. (76a)
- REQUISITES
o This is a marriage between 2 persons who have already been (1) living together as husband
and wife for more than 5 years, and have (2) no legal impediment to marry each
o other.
o They may contract marriage without applying for a marriage license.
- RATIONALE
o What is the rationale behind this law?
o This is intended to encourage those who have been in a live in relationship to legalize their
relation. Application for license will require publication. So the community will know of their
situation.
o It is the policy of the government to legalize the relationship of the people. We frown upon
cohabitation. So as much as possible, we must make the relationship legal.
o And to encourage them into legalizing the relationship is to exempt them from the
requirement of marriage license.
- WHAT TO DO
o All they have to do is to execute a JOINT AFFIDAVIT stating the fact that they have been
living together as husband and wife for more than 5 years and that they have no legal
impediment to marry each other.
 o That affidavit that they will execute will take the place of marriage license. It should be
notarized by a lawyer.
- REQUISITE 2 – NO LEGAL IMPEDIMENTS; REQUIRED AT TIME OF MARRIAGE
o If you live together for more than 5 years, can you marry each other if the five year
cohabitation that you have was attended with some impediments, like the man was still
married with another woman.
o When should this absence of legal impediment be? Should be at the period of cohabitation or
at the time you marry with each other?
 AT THE TIME OF MARRIAGE.
o Case: Ninal vs Mayano
 SC citing art 76 of NCC said, that it is clear that the absence of legal impediment to
marry should be at the time of cohabitation. Meaning during the period that they
lived together, they must have no impediment to marry each other.
 This marriage happened before the FC, Aug 3, 1988. So naturally, the SC will have to
use NCC.
 Later on a case of;
o Case: Mazano vs Sanchez
 SC citing art 34 of FC said that it is not necessary that you are not suffering legal
impediment at the time of cohabitation. What is important is that you have no more
impediment to marry each other at the time you decided to get married.
 IOW the absence of legal impediment is needed only at the time you decided to
marry your live in partner.
 Therefore, even if you have a legal impediment during the live in relationship, that
will not matter.
 Here, when the FC took effect, art 34 provides absence of legal impediment. If you
consult the minutes of the meeting and deliberation and the members of the
committee who
 drafted the law, it is quite clear there that the absence of legal impediment shall be
counted only from the time they are to marry, even if they have legal impediment at
the time of cohabitation.
o Case: People vs Dayot
 This applies art 76 of NCC, not art 34 of FC. Remarriage happened before the FC took
effect.
 So this case, although more recent does not supersede the Manzano case.
 Remember the rule that the validity of the marriage is determined by the law
prevailing at the time of the marriage, not at the time you filed the petition to
declare the marriage null and void.
 Somehow, it is unfair because you are rewarding an illicit relationship.

DEFECTIVE MARRIAGES
CHAPTER 3. VOID AND VOIDABLE MARRIAGES
- There are basically 2 kinds of defective marriages:
o 1. void marriage
o 2. voidable marriage/annulable marriage
- VOID VS VOIDABLE
o V: defective from the very start
o VBLE: valid until it is annulled
o V: not curable
o VBLE: curable
 -defect may be ratified by continued cohabitation or allowing the prescriptive
period to expire
o V: may be attacked collaterally
o VBLE: may be attacked directly
o When the marriage is voidable and you want to declare it as void, you have to file a case