General Nature of the Civil Code

Pendon, Remy Manuel C.

Dr. Jorge Bocobo’s Commentaries

On the
General Nature of the Civil Code

Even after Spanish sovereignty ceased, the Spanish Civil Code is still used until 1950. It was
due to the following:
1. Inherent and traditional conservatism of the legal profession, they are reluctant to break
away from precedents and established systems
2. the principle of international law that upon the change of sovereignty, the body of laws
continues to be in force unless and until modified in some way or another by the new
sovereign power.
3. the narrow horizon of the legal profession in the Philippines which, for lack of knowledge
of other legal systems, considered the Spanish Civil Code the very best in the world.
4. The work of codification undertaken by the code commissions and code committees
before the last war was not sufficiently persistent to give the task such as would have
insured the submission to the legislature of a complete draft of a Civil Code for the
Philippines; and
5. A certain deplorable inferiority complex in the mental make-up of our people so that
there was an unjustified fear that a civil code drawn up by Filipino jurists would not be as
good as the Spanish Civil Code.

The outstanding reforms in the new Civil Code.

1. The elevation of moral principles into positive law under certain conditions;
2. The strengthening of democracy as a way of life;
3. The introduction of equity jurisprudence as found in the English and American legal
systems;
4. The liberalization of women's rights;
5. The implementation of social justice;
6. The elevation of Filipino customs into law; and
7. The exaltation of personality.

I. EVALUATION OF MORAL PRINCIPLES

Article 21 of the new Civil Code provides that

"Any person who willfully 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."

This provision does not refer to any violation of any statute or positive law, but to a
transgression of morals, good customs or public policy. This principle is taken from the
German Civil Code, passed before Hitler.

It is based on the idea that Legislative cannot foresee all wrongs that cause damage to another
person there should be an all-embracing clause that will provide remedy in all such
unforeseen situations.

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II. STRENGTHENING DEMOCRACY
Every democratic country should see to it that its democratic institutions are transmuted from
theory into living reality; otherwise, the Communist propaganda will stir the imagination and win
the sympathy of the common masses in all democratic countries.

In order to meet the Communist menace, the new Civil Code has embodied certain new
provisions, among which are as follows:

(a) Referring to the education of children, article 358 states that it is, therefore, the duty of every
parent and every teacher to inculcate, by precept and example, that fidelity to democracy as a
way of life which is the strongest guaranty for the continuance of popular government.

(b) According to Article 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 rights
and liberties of another person guaranteed by the Constitution shall be liable for damages.

Before the effectivity of the new Civil Code, a person illegally arrested or otherwise victimized by
abusive public officers had to go to the prosecuting attorney, but if the latter was under political
influence or undue pressure and he refused to bring a criminal action, the aggrieved citizen
had no recourse at all. But under the new Civil Code, the citizen may bring an independent
civil action to obtain damages regardless of the attitude of the fiscal.
The one great secret of success of democracy in England and the United States is the rugged
individualism of the citizens who do not depend on prosecuting attorneys but go directly to the
court by instituting an independent civil action. The intention of the new Civil Code is to
foster this rugged individualism, which is the very life of democracy.

III. INTRODUCTION TO EQUITY

One of the gravest defects of the Spanish Civil Code is its strict legalism. There is no equity
jurisprudence in the Spanish Civil Code such as is found in England and America, as well as in
the law of the praetor under the system prevailing in ancient Rome.

By the adoption of this system of equity, Philippine law has been enriched by the new Civil Code
and has been made more pliable and adaptable, in order to forestall any injustice that comes
from the unconscionable rigidity and the extreme legalism of the Spanish Civil Code.

Examples: (not found in the Spanish civil code)

1. Reformation of instruments (Art. 1365) - an equitable remedy whereby the court orders
that a written contract be reformed or corrected so as to express the true intention of the
parties.
2. Doctrine of trust (Art. 1475)
3. Reduction of penalty in a contract by courts if it is iniquitous or unconscionable (Art.
1229)

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IV. THE LIBERALIZATION OF WOMEN’S RIGHT

Under the Spanish Civil Code a married woman was classified among the minors and insane
persons because she could not enter into contract in certain cases without the consent of her
husband. This was an atrocious concept of law, especially in the Philippines where married
women have, in actual practice, more powers in the administration of property than in most
other countries.

The new Civil Code has legally emancipated married women as expressed in Article 39 which
provides that "A married woman 21 years of age or over is qualified for all acts of civil life except
in cases specified by law."

There is only one exception in which the consent of the husband is necessary in order that the
wife may enter into a contract. It is when the married woman accepts a costly diamond ring from
a stranger, the reason being that this stranger might be a boyfriend of hers, and the husband
should be consulted whether he is willing that his wife should accept such a valuable gift from a
stranger.

With regard to the administration of the conjugal partnership, under the Spanish Civil Code, the
husband was free to dispose of the conjugal partnership property without the consent of the
wife. Now, he cannot dispose of the real property of the conjugal partnership without the wife's
consent.

Moreover, under the Spanish Civil Code, even if the husband abused his powers as an
administrator of the conjugal partnership, the wife had no remedy, and he may able to donate
a part or all of the conjugal partnership property to his querida. To put an end to this, the new
Civil Code in Article 167 provides: "In case of abuse of powers of administration of the conjugal
partnership property by the husband, the courts, on petition of the wife, may provide for a
receivership, or administration by the wife, or separation of property."

V. IMPLEMENTATION OF SOCIAL JUSTICE

It is idle to talk of democracy and to wax eloquent over it unless there is effective social justice.
President Quezon took of measures to raise the poor to a level of dignity so that they could
claim their rights as human beings and to have an equal opportunity to enjoy the good things of
life, provided, of course, that they are willing to work. The Spanish Civil Code and special laws
were very defective and needed radical improvement.

The new Civil Code has made reasonable efforts along this line. Example:
 Article 1702: “In case of doubt, all labor legislation and all labor contracts shall be
construed in favor of the safety and decent living for the laborer”;
 Article 1703: "No contract which practically amounts to involuntary servitude, under any
guise whatsoever, shall be valid;" and
 Article 1707: "The laborer's wages shall be a lien on the goods manufactured or work
done."

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There is an article of no little significance which should be one of the strongest bulwarks of
social justice in our country, namely:
 Article 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."
 Article 25: "Thoughtless extravagance in expenses for pleasure or display during a
period of acute public want or emergency may be stopped by order of the courts at the
instance of any government or private charitable institution."

For example, suppose there is a storm in a town, destroying most houses. There is general
suffering. But a rich man, with a large cement house which was left intact by the storm, prepares
a lavish birthday party. The Red Cross or the Social Welfare Office may go to the courts to stop
him from such extravagance. This provision is aimed to lessen the discontent of the masses
who would justly resent such vain display.

VI. ELEVATION OF FILIPINO CUSTOMS

The best law is that which is derived from custom. Such a law is precious and enduring
because it proceeds from the depths of the national soul. Therefore, the new Civil Code has
consecrated some of our indigenous customs.

Examples:
1. Women are exalted to a high level in the family, especially in the management of
conjugal property, as already explained.
2. The administration of the child's property by the parents has been restored.
3. Grandparents must be consulted by all members of the family on all important family
questions. (Art. 312). Substitute parental authority is exercised by grandparents and the
oldest brother or sister (Art. 354).
4. Instead of the father only as provided in the Spanish Civil Code, the father and mother
jointly exercise parental authority (Art. 311).

HISTORY OF THE NEW CIVIL CODE

 The new Civil Code was approved after more than three decades; various commissions
and committees had been working at a proposed Civil Code for thirty-five years, it was
not until December 15, 1947 when a complete draft was submitted to the President of
the Philippines.
 This project was, indorsed by the President to the Congress, which studied it for one
year and two months.
 Both houses of Congress made 125 amendments on the project. The original draft
consisted of 2291 articles, but, as finally approved, the new Civil Code has 2270 articles,
or 21 less.
 Effective: August 30, 1950
 Enacted: June 18, 1949
 The enactment of the new Civil Code in 1949 by the Congress is a solemn and robust
assertion of the real independence of the Philippines. Because the most important law of
the Philippines, next to the Constitution, had been the Spanish Civil Code of 1889
passed by the Spanish Cortes and approved by the King of Spain.

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SOURCES OF THE NEW CIVIL CODE

 The basis of the new Civil Code is the Spanish Civil Code of 1889.
 About 43% of the new Civil Code is an innovation.
 Provisions have been adapted, from
1. France
2. Argentina
3. Mexico
4. Louisiana
5. California
6. Switzerland; and
7. other countries.
 As for France, of the 1976 articles of the Spanish Civil Code, about 1,400 had been
taken from the Civil Code of France. Therefore, we should have adapted a few
provisions from the French Civil Code.
 As for Argentina, that country has one of the best and most comprehensive civil
codes in the, world, and it embodies, most of the splendid rules of civil law found in
ancient and modern treatises.
 With regard to Mexico, that Republic is of Spanish tradition; and is moreover of a
social make-up similar to ours.
 As for Louisiana, the parallel legal history of Louisiana and the Philippines, both
having been exposed to the influences of Roman Law and English Common Law.
 California, formerly a part of Mexico, has a modified conjugal partnership.
 Switzerland has a modern, scientific civil code.
 The German Civil Code, which is thought to be one of the best civil codes on earth,
was the model in many articles.

STRUCTURE OF THE NEW CIVIL CODE

Following the Spanish Civil Code, the new Civil Code is divided into four books, aside from the
preliminary title:
 Book I - Persons;
 Book II-Property, Ownership and its Modifications;
 Book Ill-Different Modes of Acquiring Ownership;
 Book IV-Obligations and Contracts.

BASIC REFORMS

Fundamental reforms in the new Civil Code:

1. The supremacy of justice over legalism;
2. The creation of certain civil actions, similar to the American torts, independent from the
criminal prosecution;
3. The strengthening of democracy as a way of life;
4. The introduction of equity jurisprudence as found in the English and American legal
systems;
5. The liberalization of women's rights;
6. The consolidation of the family;
7. The implementation of social justice;
8. The elevation of Filipino customs into law; and

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9. The exaltation of personality.

1. The supremacy of justice over leqalism

 One of the capital defects of the Spanish Civil Code is its too rigid adherence to legalism
and formality.
 Inasmuch as the law is made for justice and not justice for the law, a well-conceived civil
code should contain general principles that would uphold the supremacy of justice.
 In the new civil code:
a. On violation of morals. The most far-reaching of these principles, which
enthrone justice above legalism, is found in Art. 21, which reads as follows: "Any
person who willfully 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." It will be noticed that there is no violation of any positive law. It is
sufficient that: first, the act is willful; second, that injury to another is caused; and
third, that there is a violation of morals, good customs, or public policy.
b. On right conduct. Art. 19 reads: "Every person must, in the exercise of his rights
and in the performance of his duties, give everyone his due, and observe
honesty and good faith."
c. On presumption of right and justice. In Art. 10, it is provided that "In case of
doubt in the interpretation and application of laws, it is presumed that the law
making body intended right and justice to prevail."
d. On unjust enrichment. Article 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".
e. Natural Obligations. Article 1423, which reads: "Obligations are civil or natural.
Civil obligations give a right of action to compel their performance. Natural
obligations, not being based on positive law but on equity and natural law, do not
grant a right of action to enforce their performance, but after voluntary fulfillment
by the obligor, they authorize the retention of what has been delivered or
rendered by reason thereof."

2. Independent Civil actions

 The second fundamental reform is the creation of certain civil actions, similar to
American torts, independent from the criminal prosecution.
 In American and English law, civil actions are either based on contracts or on torts. This
great division of civil actions has been unknown in the Philippines, because tort under
American jurisprudence has no equivalent in the Spanish civil law.
 The nearest approach to it is the liability for culpa extracontractual, defined in Art. 1902
of the Spanish Civil Code. This Spanish culpa extra-contractual or cuasi delito is
different from the American tort because it excludes cases in which the defendant acted
with malice. In other words, the Spanish culpa extracontractual is based on negligence.
On the other hand, the Anglo- American tort includes not only acts of negligence but also
willful acts.
 In the new civil code:
o Defamation, Fraud and Physical Injuries. Art. 33
o Violation of Constitutional Rights. Art. 32
o in the absence of proof beyond reasonable doubt. Art. 29
o Refusal or failure to perform official duty. Art. 27

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o Refusal or failure to institute criminal proceedings. Art. 35

3. Women’s Rights and Family Solidarity

Liberalization of women rights

 Emancipation of Married Women. Under the old Spanish Civil Code, married women
had a limited legal capacity, but the new Civil Code has greatly liberalized the rules
concerning married women's rights.
 Profession or business. Under the Spanish Code of Commerce, the wife could not
engage in any business without the husband's express or implied consent. However, Art.
117 of the new Civil Code provides:
o "The wife may exercise any profession or occupation or engage in business."
o The husband may object provided: (1) His income is sufficient for the family,
according to its social standing, and (2) His opposition is founded on serious and
valid grounds.
o "In case of disagreement on this question, the parents and grandparents as well
as the family council, if any, shall be consulted. If no agreement is still arrived at,
the court will decide whatever may be proper and in the best interest of the
family."
 Alienation of real property. Art. 166 provides that the husband "... cannot alienate or
encumber any real property of the conjugal partnership without the wife's consent. If she
refuses unreasonably to give her consent, the court may compel her to grant the same."
If, for example, the husband should want to sell a piece of land of the conjugal
partnership because he intends to donate the price to his sweet "querida" or bright-
plumed "kulasisi," the wife's refusal to give consent would be quite reasonable.
 Abuse of administration. Art. 167 reads:
o "In case of abuse of powers of administration of the conjugal partnership property
by the husband, the courts, on petition of the wife, may provide for a
receivership, or administration by the wife, or separation of property."
o As you all know, under the Spanish Civil Code, the wife could not interfere with
the administration of the conjugal partnership by the husband during the
existence of the marriage.
o She or her heirs could not question the transactions of the husband till after the
dissolution of the marriage. But often it was too late, for the Tagalog maxim says:
"Aanhin pa, ang damo, kung patay na ang kabayo." (What is the grass good for,
after the horse is dead?)
o This rule in the old Civil Code gave rise to abuses of administration by the
husband. Therefore, the new Civil Code authorizes the wife to ask the court for
receivership, or separation of property, or administration by the wife.
o This reform makes the wife a real partner or companion throughout life,
and not, as a mistress to the young husband, a companion to the middle-
aged one, and a nurse to the old husband. The new Civil Code
contemplates that she should be his companion, regardless of the
husband's age.
 Abandonment. Art. 178, (3) provides that:
o "If the husband has abandoned the wife without just cause for at least one year,
she may petition the court for a receivership, or administration by her of the
conjugal partnership property, or separation of property."

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o It is unfair and dangerous that while he indulges in ecstatic languor in the arms of
the "other woman", the husband should continue administering the conjugal
partnership.
 Administration of the partnership by the wife. According to Article 168:
o "The wife may, by express authority of the husband embodied in a public
instrument, administer the conjugal partnership property."
o This is in accordance with custom among many Filipino families where the wife
administers the conjugal partnership. In fact, in many families, the wife looks after
the cultivation of the lands and manages the store owned by the family, while the
husband enjoys himself playing hocus-pocus in politics.
 Complete separation of property between husband and wife. Article 212 provides
that
o the future spouses may agree in the marriage settlements that their property
relations during marriage shall be based upon the system of complete separation
of property. This is the system in America and England.
o The new Civil Code expressly authorizes And regulates the system of complete
separation of property. This system may be insisted upon by the rich parents of
the bride in order to thwart the designs of fortune hunters.
o In fact, one modern way of proposing marriage is this: a young man asks the rich
girl this question, "Will you please let me transfer your bank account to my
name?" Greedy people are referred to in the Tagalog proverb: "Alisin ang hiya at
nang tumaba." (Be shameless and grow fat.)
 Affairs of the household. It is expressly provided in Article 115 that
o The wife manages the affairs of the household. This is in recognition of the idea
that the wife should be the queen of the home while the husband should be
supreme outside.
o However, in many cases there is a kind of feminine imperialism where the wife is
the queen not only of the home but also of the husband's business.
o In such a case, if the husband disregards the adage that eternal vigilance is the
price of liberty, even the United Nations cannot help him, because its Charter
cannot reach the soft and insidious imperialism of the wife.
 Joint parental authority.
o Under the old Civil Code the father alone exercised parental authority.
o However, Article 311 of the new Civil Code specifically declares that "the father
and mother jointly exercise parental authority over their legitimate children who
are not emancipated. In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary".
o This article is a measure of justice because the decisions of the father are not
always wise.
 Investigation of paternity.
o The Spanish C.C. was strict about the proof of paternity of an illegitimate child.
o Some men, after seducing a girl, deny the paternity of the child.
o Under Article 283 of the NCC, investigation of paternity is allowed, and any proof,
admissible under the general principles of evidence, may be presented to show
paternity.
o This rule will protect many deceived young women who, because of the severity
of the old Civil Code, were prevented from proving the paternity of the child.
 Custody of a baby. Article 363 orders that

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Pendon, Remy Manuel C.
o "... . No mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure".

Solidarity of the Family

 Family as a foundation of society.

o It is a truism that the family is the foundation of society, and every wise legislation
should make a supreme effort to strengthen that foundation.
o the new Civil Code provides, among other things, that:
 "the family is a basic social institution which public policy cherishes and
protects" (Art. 216)
 that "no custom, practice, or agreement which is destructive of the family
shall be recognized or given any effect" (Art. 218) and
 "mutual aid, both moral and material,
 shall be rendered among members of the same family". (Art. 219)
 And in case of doubt, all presumptions favor the solidarity of the family.
(Art. 220).
 Need of compromise.
o Article 222 provides: "No suit shall be filed or maintained between members of
the same family unless it should appeal that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the limitations in
Article 2035."
o This article tries to minimize the deleterious social effect of lawsuits between
members of the same family. It is a well-known fact that litigation between
husband and wife, or between parent and child, or between brother and sister is
infinitely more serious than a lawsuit between strangers.
o In line with this same principle, Article 98 provides as to suits for relative divorce
or legal separation that: "In every case the court must take steps, before granting
the legal separation, toward the reconciliation of the spouses, and must be fully
satisfied that such reconciliation is highly improbable."
 Judicial intervention in family matters.
o There is an article that establishes a paternalistic but benevolent principle to
prevent families from being dashed to the rocks.
o Article 116 provides:
 "When one of the spouses neglects his or her duties to the conjugal union
or brings danger, dishonor or material injury upon the other, the injured
party may apply to the court for relief. The court may counsel the offender
to comply with his or her duties, and take such measures as may be
proper."
o This is a very broad provision, to enable the court to cope with each particular
case according to its peculiar circumstances.
o This is not, strictly speaking, a litigation between husband and wife, but it is a
kind of conciliation proceeding so that the court may try to harmonize conflicting
attitudes and interests.
o The personality and persuasive influence of the judge will go far toward effecting
a wise and just settlement.
 The Family Home.
o The establishment of the family home may take place judicially or extra-judicially.
In either case, the creation of the family home has a two-fold purpose:

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 first, to exempt the family home from execution, forced sale or
attachment, save in a few cases; and
 second, 'to require the consent of a majority of the family before the
person constituting the family home may dissolve the same, or to require
judicial approval in case the family home is sold, alienated or
encumbered.
o Before the approval of the new Civil Code, the only kind of home which was
exempted from execution was that whose value did not exceed P300. This was
ridiculous because even some "barong-barongs" cost more than P300.
o Under the new Civil Code, a family home consisting of land and house may be
established, provided it is worth not more than P30,000 in chartered cities, or
P20,000 elsewhere.
o The judicial declaration of the family home is made by order of the court,
whereas the extra-judicial one is done by merely recording the declaration in
the Registry of Property.
o A family home judicially created is exempt from execution, forced sale or
attachment
o If the family home is extra-judicially created, through its being recorded as such
in the Registry of Property, the family home is exempt from seizure.
 The Family Council.
o Under the Spanish Civil Code there was a family council, but its powers were
limited to matters regarding guardianship.
o The new Civil Code broadens the scope of the family council, which is appointed
by the court. Article 252 says that the family council
 "shall advise the court, the spouses, the parents, guardians and the family
on important family questions".
o This is a revival of an ancient Filipino BALANGAYAN custom whereby the oldest
members of the family met together to deliberate on grave family questions.
o The Family Council is especially necessary in case of trouble between husband
and wife, or among co-heirs.
 Grandparents.
o Article 312 provides that
 "Grandparents shall be consulted by all members of the family on all
important family questions".
o This is a legal elevation of a tradition in BALANGAYAN families that have not
been over-modernized.
o The salutary influence of the wise counsel of grandparents is beyond measure.
o It is a tragic mistake, however, on the part of many of the younger generation
who treat their grandparents as old and forgotten saints that should be placed in
some dusty corner of the sacristy.
 Divorce.
o In the original draft of the new Civil Code, the Commission recommended the
continuation of absolute divorce on the same grounds laid down by the old
divorce law, namely, adultery on the part of the wife and concubinage on part of
the husband.
o However, the original draft proposed the revival of relative divorce with one
ground: adultery on the part of either spouse. This was on the principle of the
single standard of morality.

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o But, the House of Representatives, by an abolished absolute divorce and
authorized only relative divorce or legal separation, but added a new ground,
namely, an attempt by one spouse against the life of the other.

4. The Philosophy of Some Reforms Introduced by The New Civil Code

 Some of the innovations in the [Philippine] BALANGAYAN Civil Code, are a part of the
legacy of civilization, and although they may be apparently too advanced, they are
intended to influence the thinking of our people, with a view to social betterment and
reform.
 The Code Commission has intended to effect reforms moderately and gradually,
avoiding as much as possible radical changes.
 For instance, on the subject of abatement of public or private nuisance:
o in the United States and England, extrajudicial abatement of nuisance can be
carried out without intervention of the authorities, but in the [Philippine]
BALANGAYAN Civil Code there must be previous approval by the district health
officer and the abatement must be executed with the assistance of the local
police. (Arts. 704 and 706.)
 Again, as to property relations during marriage, two opposite radical changes offered
themselves as standard systems:
o The absolute separation of property as in the United States, and
o the absolute community, as in Portugal and Holland.
o The first reform seemed to have been urged by the modern education of the
[Filipino] BALANGAYAN woman and her ancient significant role in the family,
while the second change appeared to have been called for by the established
custom among most [Filipino] BALANGAYAN families, that the properties
brought into or acquired during marriage are in actual practice merged.
o But the Commission chose the middle ground by continuing the old conjugal
partnership but so modified as to protect the rights of the wife.
 Another example of the policy of moderate reforms refers to the sale with pacto de retro.
o In view of the grave abuse of this contract, our first impulse was to abolish pacto
de retro entirely.
o However, the lender may demand an absolute conveyance of the land by the
borrower, who would, out of compelling financial necessity, have to yield.
o Therefore, the Code Commission also adopted a middle ground by the repeal of
the automatic consolidation of ownership in the vendee and by giving the vendor
ample opportunity to repurchase the property (Arts. 1606 and 1607).
 As the Commission in its report said:
o "Law should not be static but vital and overgrowing. While there ought to be
stability of the laws, they ought not to be so inflexible as to destroy their very
essence, which is the supremacy of right. When there is delay of justice, it is
truly said that justice is denied, a grave situation indeeI, but graver still is the
perpetuation of injustice by the law itself, for then the courts can do nothing but
apply the law. How often the courts have deplored their melancholy task of
applying a legal provision which they knew ran counter to reason and equity! The
Commission does not, of course, presume to claim that every reform suggested
is unerringly the just rule or norm, but each proposed change is an expression of
the Commission's best judgment as to what is right and fair."

The reason for some of the sweeping and radical changes.

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a) Damages in case of intentional injury when the act, though not against positive
law, is contrary to morals, good customs or public policy;
b) independent civil actions;
o The second reform, which creates independent civil actions, departs from well
established ideas in the [Philippines] BALANGAYAN ARKIPELAGO.
o Some of are similar to the Anglo-American institution called "tort".
o Reasons:
 First, conviction in a criminal case requires proof beyond reasonable
doubt, while in a civil case, preponderance of evidence is enough on
which to base judgment for the plaintiff.
 Secondly, not infrequently, the Fiscal under political pressure or other
undue influence, would not start criminal proceedings.
 Thirdly, our people have been habituated to rely on the public prosecutor
to obtain justice.
c) strengthening of democracy;
o All parents, teachers and professors in public and private schools, colleges and
universities are thus obliged to teach their pupils and students "love of country,
veneration for the national heroes, fidelity to democracy as a way of life, and
attachment to the ideal of permanent world peace".
o It is intended thereby that parents, teachers, and professors should feel the
solemn responsibility of transmitting to the youth our sacred heritage of freedom
and love of country.
o Purpose of article 32 is to cultivate in our citizens an undaunted determination to
guard their liberties guaranteed by the Constitution, without depending on the
Fiscal.
o Too often, the Fiscal is under pressure, so he cannot file the complaint. It is thus
necessary to give the aggrieved party the right to bring a civil action for damages.
o Our citizens should learn to make use of this right of action not only to obtain
indemnity, but also to help build a general respect for individual liberties.
d) implementation of social justice;
o One of the pillars of our Republic is equality before the law.
o The mainspring of the principle of social justice is to remove man's inhumanity to
man.
o All sound and just legislation must be based on love of mankind.
e) supremacy of equity and justice as against technicality and legalism.
o Finally, one of the most far-reaching reforms introduced by the new Civil Code is
the adoption of provisions tending to uphold the supremacy of equity and justice
against technicality and legalism.
o The new Code does its utmost to solve the age-old problem of justice and right
as against injustice and wrong shielded by technicality and the letter of the law.
o The legal profession has been largely to blame for the perpetration of
technicality.
o It is a strange and lamentable fact that equity as a system, as a separate body of
rules, has not developed in Spain, as it has grown in England and the United
States. This is indeed strange because Spanish law is a direct descendant of
Roman law, where equity originated, while English law, which – though
essentially based upon the Roman system - is farther removed from it than
Spanish law. The pronouncements by the praetor,

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Pendon, Remy Manuel C.
o technicality and legalism have been more frequent in Spanish law than in Anglo-
American law. This is manifest in the
o Spanish Civil Code. Spanish courts and writers have been helpless before the
hard-and-fast and inflexible rules of the Spanish laws.
o So the Code Commission introduced many principles of equity jurisprudence
found in the English and American system. Some of them are:
 1. Reformation of instruments. (Articles 476-1359-1369)
 2. Quieting of title. (Article 476-481)
 3. Implied trusts. (Articles 1447-1457)
 4. Recovery upon substantial performance of a contract. (.Article 1234)
 5. Recovery in case of unjust enrichment. (Article 22)
 6. Reduction of contractual penalty if it is iniquitous or unconscionable.
(Article 1229)
o By the elimination of technicality, the new Code intends to avoid injustice which is
brought about by what Shakespeare called "the nice sharp quillets of the law".

5. The Independent Civil Action Under the New Civil Code

 1st The independent civil action for damages that arise from an intentional criminal act.
o Following the theory of tort in Anglo-American law, the new Civil Code has
created some civil actions for damages suffered in consequences of a crime
punished by the penal law.
o In general, these civil actions refer to certain criminal acts of a very personal
character, which gravely and directly affect the person of the plaintiff.
o The new Civil Code contemplates the following situations:
 (a) Certain civil actions which are expressly declared independent;
 (b) The independent civil action after the acquittal of the accused in a
criminal prosecution for lack of proof beyond reasonable doubt; and
 (c) The independent civil action when the justice of the peace or the fiscal
refuses to commence a criminal proceeding.
o Another reason for these independent civil actions is that a criminal case requires
proof beyond reasonable doubt, while a civil case requires only a preponderance
of evidence. There have been countless cases where the aggrieved party could
not recover damages because the act could not be proved beyond reasonable
doubt in the criminal prosecution.
o The third situation is where the justice of the peace or the fiscal refuses to
proceed with the criminal case. Only a few criminal acts upon which, by express
provision of the new Civil, Code, the aggrieved party may file an independent civil
action.
o This Article 35 therefore, refers to arson, theft, robbery, murder, blackmail,
bribery, etc. It is neither fair nor in keeping with sound public policy that the
opinion of the justice of the peace or the
o fiscal who of course is not infallible, should prejudice the plaintiff in regard to the
civil aspect of the case which 'requires only a preponderance of evidence.'
o Moreover, here again the new Civil Code forestalls the possibility of the justice of
the peace or prosecuting attorney not having enough civic courage to file a

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Pendon, Remy Manuel C.
criminal case. These anomalous instances may be few, but they should be
provided against in order to prevent a miscarriage of justice.

 2nd. The independent civil action for quasi-delict or culpa aquiliana.

o the Philippine Supreme Court, until the year 1942, upheld the doctrine that
acquittal in a criminal case bars every civil action for damages.
o In the 1942 decision, The Supreme Court held that there is a difference between
the civil responsibility arising from criminal negligence regulated by the Penal
Code and the responsibility through fault or negligence according to Articles 1902
to 1910 of the Spanish Civil Code, and that the same negligent act may produce
civil responsibility arising from a crime under the Penal Code, and also a
separate, responsibility for fault or negligent act under said articles 1902 to 1910
of the Spanish Civil Code.
o This doctrine has been embodied in the new Civil Code.

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