ULTIMATE REVIEWER:
) that it is published for the dissemination of local news
PERSONS AND FAMILY RELATIONS
Sources: RABUYA (2017) and STA. MARIA (2020)
NEW CIVIL CODE OF THE PHILIPPINES (Republic Act No. 386)
EFFECTIVITY: AUGUST 30, 1950
 A “code” is a collection of laws of the same kind; a legal body
of provisions referring to a particular branch of law. A “civil
code,” therefore, is a collection of laws which regulate the
private relations of the members of the society, determining
their respective rights and obligations, with reference to
persons, things, and civil acts.
 SOURCES:
a.) Spanish Civil Code (1889)
b.) The codes, laws, and judicial decisions, as well as the
work of jurists of other countries
c.) Doctrines laid down by the Supreme Court
d.) Filipino customs and traditions
e.) Philippine statutes
f.) Code Commission
ARTICLE 2 – WHEN LAWS TAKE EFFECT
LAWS SHALL TAKE EFFECT AFTER FIFTEEN DAYS FOLLOWING THE
COMPLETION OF THEIR PUBLICATION IN THE OFFICIAL GAZETTE, OR IN
ANY NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES, UNLESS
IT IS OTHERWISE PROVIDED. (As amended by E.O. 200)
 THE OFFICIAL GAZETTE OF THE PHILIPPINES is the official
journal of the Republic of the Philippines. Edited at the Office
of the President of the Philippines Under Commonwealth Act
No. 638.
 GENERAL - A law may provide for its own effectivity. If the
law is SILENT, then it shall take effect ONLY AFTER FIFTEEN
(15) DAYS FOLLOWING ITS COMPLETE PUBLICATION.
Omission of it would OFFEND DUE PROCESS.
 LAWS PROVIDING FOR ITS OWN EFFECTIVITY - Example: The
Family Code of the Philippines (which explicitly states that it
shall take effect one year after the completion of its
publication in the Official Gazette or in a newspaper of
general circulation) which completed its publication on
August 4, 1987 and which the Supreme Court clarifies to have
taken effect on August 3, 1988.
 COMPUTATION OF THE 15-DAY PERIOD: NOTE that this may
EITHER BE ON THE 15TH DAY OR ON THE 16 TH DAY depending
on the language used by the Congress.
a.) 15th DAY – IF the law declares that it shall become
effective “15 DAYS AFTER ITS PUBLICATION,” it means
that its effectivity is on the 15 TH DAY AFTER SUCH
PUBLICATION.
b.) 16th DAY – IF the law declares that it shall become
effective “AFTER 15 DAYS FOLLOWING ITS
PUBLLICATION,” its effectivity is on the 16 th DAY
THEREAFTER.
 PUBLICATION REQUIREMENT – The publication of the law is
an INDISPENSABLE REQUISITE in relation to its effectivity.
Because without such notice and publication, there will be no
basis for the application of the maxim “ignorantia legis non
excusat.” It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of
which he had no notice whatsoever, NOT EVEN A
CONSTRUCTIVE ONE.
 WHERE TO PUBLISH – In the celebrated Tanada v. Tuvera
case, the Supreme Court ruled that publication must be
effected in the Official Gazette only and not in any other
medium. It was for this reason that the Executive Order No.
200 was passed by Corazon Aquino, amending Article 2 of the
NCC. Pursuant to this amendatory law, publication of laws
may now EITHER BE IN THE OFFICIAL GAZETTE OR IN A
NEWSPAPER OF GENERAL CIRCULATION in the Philippines.
 PUBLICATION MUST BE IN FULL OR IT IS NO PUBLICATION AT
ALL SINCE ITS PURPOSE IS TO INFORM THE PUBLIC OF THE
ARTICLE 3 – LEGAL EFFECT OF THE IGNORANCE OF LAWS
CONTENTS OF THE LAWS.
IGNORANCE OF THE LAWS EXCUSES NO ONE FROM COMPLIANCE
 MEANING OF “NEWSPAPER OF GENERAL CIRCULATION” – It is
THEREWITH.
enough that:
This is an affirmation of Article 2.
a.
and general information
b.) that it has a bona fide subscription list of paying
subscribers, and
c.) that it is published on regular intervals
 The term “NEWSPAPER OF GENERAL CIRCULATION” DOES
NOT MEAN that it is a newspaper with the largest circulation.
This fact is UNIMPORTANT.
 MEANING OF THE CLAUSE “UNLESS IT IS OTHERWISE
PROVIDED” – refers to the DATE OF EFFECTIVITY and not the
requirement of publication itself, which CANNOT in any event
be omitted.
 EFFECTIVE IMMEDIATELY UPON APPROVAL – When a law
provides for its immediate effectivity upon approval, it shall
be understood that it shall take effect IMMEDIATELY UPON
ITS PUBLICATION. (La Bugal-B’Laan Association, Inc. v.
Ramos)
 REDUCTION OR EXTENSION OF THE 15-DAY PERIOD – The
legislative may, in its discretion, provide that the usual 15-day
period be shortened or extended.
 MEANING OF TERM “LAWS” – refer to ALL LAWS and NOT
ONLY THOSE OF GENERAL APPLICATION. ALL STATUTES,
including those of LOCAL APPLICATION and PRIVATE LAWS,
shall be published as a condition of their effectivity.
a.) Presidential Decrees (including those naming a public
place after a favored individual or exempting him from
certain prohibitions or requirements) and Executive
Orders
b.) Administrative Rules and Regulations BUT IF THE
REGULATIONS ARE MERELY INTERNAL (those which
regulate only the administrative agency’s personnel
and NOT THE PUBLIC) they are NOT REQUIRED TO BE
PUBLISHED.
 PUBLICATION IS NOT REQUIRED IN LETTERS OF
INTRUCTION (LOIs) issued by administrative
superiors concerning the rules or guidelines to be
followed by their subordinates in the
performance of their duties.
c.) MONETARY BOARD CIRCULARS – MBC issued by the
Monetary Board are REQUIRED to be published to “fill
in the details of the Central Bank Act” which that body
is supposed to enforce. HOWEVER, circulars which are
mere statements of general policy as to how the law
should be construed DO NOT NEED PUBLICATION in the
OG.
 CIRCULARS WHICH PRESCRIBE A PENALTY FOR
THEIR VIOLATION SHOULD BE PUBLISHED
BEFORE BECOMING EFFECTIVE, based on the
GENERAL PRINCIPLE and THEORY that before the
public is bound by its contents, especially its
penal provisions, a law, regulation or circular
must FIRST BE PUBLISHED.
d.) CHARTER OF A CITY – must also be published
notwithstanding that it applies to only a portion of the
national territory and directly affects only the
inhabitants of that place.
 PUBLICATION IS NOT REQUIRED of the
INSTRUCTIONS issued by the MINISTER OF
SOCIAL WELFARE on the case studies to be made
in the petitions for adoptions or the rules laid
down by the head of the government agency on
the assignments or workload of his personnel or
the wearing of office uniforms.
 MUNICIPAL ORDINANCES ARE NOT COVERED BY ARTICLE 2
BUT BY THE LOCAL GOVERNMENT CODE.
 SUPREME COURT DECISIONS ARE NOT COVERED BY ARTICLE 2
because it is the lawyers in the active law practice who must
keep abreast of decisions particularly where issues have been
clarified, consistently reiterated and published in advanced
reports and the SCRA (Supreme Court Reports Annotated).
Ignorantia legis non excusat.
 This is founded not only on:
a.) EXPEDIENCY (the quality of being convenient and
practical despite possibly being improper or immoral;
convenience) AND
b.) POLICY (a course or principle of action adopted or
proposed by a government, party, business, or
individual) BUT ALSO ON
c.) NECESSITY (the fact of being required or indispensable)
 EVERY PERSON KNOWING THE LAW IS A CONCLUSIVE
PRESUMPTION.
 The conclusive presumption that every person knows the law
PRESUPPOSES THAT THE LAW HAS BEEN PUBLISHED.
 While the presumption is very far from reality, the same has
been established because of the OBLIGATORY FORCE of law.
 ACTUAL NOTICE IS NOT REQUIRED SINCE CONSTRUCTIVE
NOTICE IS SUFFICIENT.
 WHEN:
a.) A law is passed by the Congress,
b.) Duly approved by the President,
c.) Properly published, AND
d.) Consequently becomes effective pursuant to its
effectivity clause OR to some provision of a general law
on the effectivity of statutes,
The PUBLIC IS PUT ON A CONSTRUCTIVE NOTICE of the law’s
existence and effectivity. This is true even if the person has
no actual knowledge of such law. To allow a party to set up a
valid defense, the fact that he has no actual knowledge of a
law which he has violated is to foment DISORDER in society.
 THIS PROVISION APPLIES PHILIPPINE LAWS—TO ALL KINDS OF
DOMESTIC LAWS, whether CIVIL OR PENAL, SUBSTANTIVE OR
REMEDIAL. HOWEVER, this is ONLY LIMITED TO:
a.) MANDATORY LAWS – are laws that are imperative and
impose a duty upon those covered by the law
b.) PROHIBITORY LAWS – are mandatory laws that
imposes duty to refrain from doing a forbidden act
It DOES NOT include those which are merely
permissive.
 NOT APPLICABLE TO FOREIGN LAWS – There is no
conclusive presumption from this that even our
courts cannot take judicial notice of them. They
must be specially alleged and proved. HENCE,
IGNIRANCE OF A FOREIGN LAW WILL NOT BE A
MISTAKE OF LAW BUT A MISTAKE OF FACT.
 DOCTRINE OF PROCESSUAL PRESUMPTION – A
foreign law must be properly pleaded and proved
as fact because IF NOT, our courts will presume
that the foreign law is the same as our local,
domestic or internal law. This is the DOCTRINE
OF PRESUMED IDENTITY IN INTERNATIONAL
LAW.
 IGNORANCE OF LAW VERSUS IGNORANCE OF FACT –
Ignorantia facti excusat. Ignorance of fact is an excuse.
 REQUISITES OF MISTAKE OF FACT
a.) that the act done would have been lawful had the facts
been as the accused believed them to be;
b.) intention of the accused is lawful;
c.) mistake must be without fault of carelessness.
 DIFFICULT QUESTIONS OF LAW – have been given the SAME
EFFECT AS A MISTAKE OF FACT. ARTICLE 526 of the NCC
provides that “mistake upon a doubtful or difficult question
of law may be the basis of GOOD FAITH.”
ARTICLE 4 – RETROACTIVITY OF LAWS
LAWS SHALL HAVE NO RETROACTIVE EFFECT, UNLESS THE CONTRARY IS
PROVIDED.
 Laws shall have PROSPECTIVE (applying to the future) EFFECT
unless the contrary is provided. Lex prospicit, non respicit.
 A RETROACTIVE LAW is one intended to affect transactions
which occurred, or rights which accrued, before it became
operative, and which ascribes to them effects not inherent in
their nature.
 PURPOSE – To make a law binding even BEFORE (retroactive)
it has taken effect may lead to arbitrary exercise of the
legislative power.
 EXECEPTIONS TO THE GENERAL RULE:
a.) IF THE LAW ITSELF PROVIDES FOR RETROACTIVITY.
The law itself may provide for its retroactivity if it so
EXPRESSLY PROVIDES. This is the meaning of the clause
“unless it is otherwise provided.”
TWO (2) EXCEPTIONS:
1.) When the retroactivity of a statute will make it
an EX-POST FACTO LAW (Sec. 22, Art. III of the
1987 Constitution).
An EX-POST FACTO LAW is one that would make
a previous act criminal although it was not so at
the time it was committed. To be an ex-post
facto law, it must:
a.) Refer to criminal matters
b.) Be retroactive in its application, and
c.) Prejudicial to the accused
2.) When the retroactivity of a statute will result in
the IMPAIRMENT OF OBLIGATION AND
CONTRACTS. (Sec. 10, Art. III of the 1987
Constitution) A law impairs an obligation of
contract if it has retroactive application so as to
affect existing contracts concluded before its
enactment.
GENERAL RULE – Only laws existing at the time of
the execution of the contract are applicable
thereto and not later statutes UNLESS the latter
are specifically intended to have retroactive
effect.
EXERCISE OF POLICE POWER – A law enacted in
the exercise of police power to regulate or
govern certain activities or transactions could be
given retroactive effect and may reasonably
impair vested rights and contracts.
b.) PENAL LAWS FAVORABLE TO THE ACCUSED – Penal
laws shall have a retroactive effect insofar as they favor
the person guilty of a felony, WHO IS NOT A HABITUAL
DELINQUENT (Art. 22, Revised Penal Code), although at
the publication of such laws a final sentence has been
pronounced and the convict is serving the same.
 A person is deemed to be a HABITUAL
DELINQUENT, if within a period of TEN (10)
YEARS from the date of his release or last
conviction of the crimes of serious or less
serious physical injuries, robo, hurto,
estafa or falsification, he is found guilty of
any said crimes a third time or oftener.
(Art. 62, Revised Penal Code)
 A recidivist (habitual delinquent) is one
who, at the time of his trial for one crime,
shall have been previously convicted by
final judgment of another crime… (Par. 9,
Art. 14, Revised Penal Code)
c.) PROCEDURAL OR REMEDIAL LAWS – Exempted are
remedial statutes relating to remedies or modes of
procedure, which do not create or take away vested
rights, but only operate in furtherance of a remedy or
confirmation of rights already existing.
 Statutes regulating the procedure of courts
will be construed as applicable to actions
pending and undetermined at the time of
their passage. THE GENERAL RULE IS THAT,
NO VESTED RIGHT MAY ATTACH NOR
ARISE FROM PROCEDURAL LAWS.
 MEANING OF “VESTED RIGHT”
In Go Jr. v. Court of Appeals, the Supreme
Court states that:
“A vested right is one whose existence,
effectivity and extent do not depend upon
events foreign to the will of the holder, or
to the exercise of which no obstacle exists,
and which is immediate and perfect in
itself and not dependent upon a
contingency (requirement). The term
vested right expresses the concept of
present fixed interests which, in right
 reason and natural justice, should be
protected against arbitrary State action, or
an innately just and imperative right which
enlightened free society, sensitive to
inherent and irrefragable individual rights,
cannot deny. To be vested, a right must
become a legal title or equitable to the
present or future enjoyment of property.
In ABAKADA Guro Party List Officer
Samson S. Alcantara, et al. v. The
Honorable Executive Secretary Eduardo R.
Ermita, the Supreme Court states that:
“The concept of a vested right is a
consequence of the constitutional
guarantee of due process that expresses a
present fixed interest which in right reason
and natural justice is protected against
arbitrary state action; it includes not only
legal or equitable title to the enforcement
of a demand but also exemptions from
new obligations created after the right has
become vested. Rights are considered
vested when the right to enjoyment is a
present interest, absolute, unconditional,
and perfect or fixed and irrefutable.
 WHILE ONE MAY NOT BE DEPRIVED OF HIS
VESTED RIGHT, HE MAY LOSE THE SAME IF
THERE IS DUE PROCESS AND SUH
DEPRIVATION IS FOUNDED IN LAW AND
JURISPRUDENCE.
d.) CURATIVE LAWS – A curative statute is enacted to cure
defects in a prior law or to validate legal proceedings,
instruments or acts of public authorities which would
otherwise be void for want of conformity with certain
existing legal requirements. They are intended to
supply defects abridge superfluities and curb certain
evils. They CANNOT violate constitutional provisions,
NOR destroy vested rights of third persons. They
CANNOT affect judgment that has become final.
e.) LAWS CREATING NEW SUBSTANTIVE RIGHTS PROVIDED
THAT IT HAS NOT PREJUDICED ANOTHER ACQUIRED
RIGHT OF THE SAME ORIGIN.
ARTICLE 5 – ACTS EXECUTED AGAINST PROVISIONS
ACTS EXECUTED AGAINST THE PROVISIONS OF MANDATORY OR
PROHIBITORY LAWS SHALL BE VOID, EXCEPT WHEN THE LAW ITSELF
AUTHORIZES THEIR VALIDITY.
 EXECEPTIONS TO THE GENERAL RULE:
a.) When the law itself authorizes its validity although
generally they would have been void.
Example: Lotto and sweepstakes
b.) When the law makes an act valid BUT punishes the
violator.
Example: A widow who remarries before the lapse of
300 days after the death of her husband is liable to
criminal prosecution but the marriage is valid.
c.) Where the law merely makes the act voidable, that is,
valid unless annulled.
Example: A marriage celebrated through violence or
intimidation or fraud is valid until it is annulled by a
competent court.
d.) Where the law declares the act void but recognizes
legal effects as arising from it.
Example: In a void marriage under Articles 36 and 53 of
the Family Code, the children born thereto are
considered legitimate.
ARTICLE 6 – WAIVER OF RIGHTS
RIGHTS MAY BE WAIVED, UNLESS THE WAIVER IS CONTRARY TO:
1.) Law
2.) Public order
3.) Public policy
4.) Morals, OR
5.) Good customs, OR
6.) Prejudicial to a third person with a right recognized by law.
 RIGHT – an entitlement to something, whether to concepts
like justice and due process or to ownership of property or
some interest in property, real or personal. These rights
include various freedoms; protection against interference
with enjoyment of life and property; civil rights enjoyed by
citizens.
 ELEMENTS OF RIGHTS
a.) SUBJECT – The subjects of rights are persons for rights
exist only in favor of persons.
1.) ACTIVE – one who is entitled to demand the
enforcement of the right
2.) PASSIVE – one who is duty-bound to suffer its
enforcement
b.) OBJECT – things and services
c.) EFFICIENT CAUSE – fact that gives rise to the legal
relation
 KINDS OF RIGHTS
a.) CIVIL RIGHTS
1.) RIGHTS OF PERSONALITY (HUMAN RIGHTS) (NOT
SUBJECT TO WAIVER)
2.) FAMILY RIGHTS (NOT SUBJECT TO WAIVER)
3.) PATRIMONIAL RIGHTS (CAN BE WAIVED)
b.) POLITICAL RIGHTS – those referring to the participation
of persons in the government of the State
 REAL AND PERSONAL RIGHTS, DISTINGUISHED
a.) PATRIMONIAL RIGHTS
1.) REAL RIGHT or the power belonging to a person
over a specific thing, without a passive subject
individually determined against whom such right
may be personally exercised; it is enforceable
against the whole world; AND
2.) PERSONAL RIGHT or the power belonging to one
person to demand of another, as passive subject,
the fulfillment of a prestation to give, to do or
not do (definition of OBLIGATION).
 WAIVER – a voluntary and intentional relinquishment of a
known existing:
1.) LEGAL RIGHT
2.) ADVANTAGE
3.) BENEFIT
4.) CLAIM, OR
5.) PRIVILEGE, which except for such waiver the party would
have enjoyed;
The VOLUNTARY ABANDONMENT OR SURRENDER, by a CAPABLE
PERSON, of a right known by him to exist, with the intent that such
right shall be surrendered and such person forever deprived of its
benefit; or such conduct as warrants an interference of the
relinquishment of such right; or the intentional doing of an act
inconsistent with claiming it.
 WHERE ONE LACKS THE KNOWLEDGE OF A RIGHT, THERE IS
NO BASIS UPON WHICH WAIVER OF IT CAN REST. IGNORANCE
OF A MATERIAL FACT NEGATES WAIVER, AND WAIVER
CANNOT BE ESTABLISHED BY A CONSENT GIVEN UNDER A
MISTAKE OR MISAPPREHENSION OF FACT.
 REQUISITES OF A VALID WAIVER
1.) He must have the right which he renounces.
2.) He must have knowledge of its existence.
3.) He must have the capacity to make the renunciation.
4.) The renunciation must be made clear and unequivocal in
manner.
ARTICLE 7 – REPEAL OF LAWS
LAWS ARE REPEALED ONLY BY SUBSEQUENT ONES, AND THEIR VIOLATION
OR NON-OBSERVANCE SHALL NOT BE EXCUSED BY:
1.) DISUSE, or
2.) CUSTOM, or
3.) 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.
 LAWS ARE REPEALED IN TWO WAYS:
1.) EXPRESSLY (is that contained in a special provision of a
subsequent law)
2.) IMPLIEDLY (takes place when the provisions of the
subsequent law are incompatible with those of an earlier law)
- NOTE THAT implied repeals are NOT TO BE FAVORED because
they rest only on the presumption that because the old and
the new laws are incompatible with each other, there is an
intention to repeal the old. There MUST be a plain,
nonavoidable and irreconcilable repugnancy between the
two: if both laws can by reasonable construction, stand
together, both will be sustained.
- The rule is expressed in the maxim, interpretare et
concordare lequibus est optimus interpretendi, i.e., every
statute must be so interpreted and brought into accord with
other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have
known the existing laws on the subject and not have enacted
conflicting statutes.
 A repealing clause such as this:
“SECTION 27. Repealing Clause. All laws, decrees, orders,
rules and regulation, or portion thereof, inconsistent with this
Code are hereby repealed or modified accordingly.”
IS NOT AN EXPRESS REPEALING BECAUSE IT FAILS TO
IDENTIFY OR DESIGNATE THE LAWS TO BE ABOLISHED. If
repeal of particular or specific law or laws is intended, the
proper step is to so express it.
 REQUISITES OF IMPLIED REPEAL:
1.) THE LAWS COVER THE SAME SUBJECT MATTER, and
2.) THE LATTER IS REPUGNANT (INCOMPATIBLE) TO THE EARLIER.
 REQUIREMENT OF REPUGNANCY – An
implied repeal predicates the intended
repeal upon the condition that a
SUBSTANTIAL CONFLICT must be found
between the new and prior laws. In the
absence of an express repeal, a subsequent
law cannot be construed as repealing a
prior law UNLESS an irreconcilable
inconsistency and repugnancy exists in the
terms of the new and old laws. The two
laws must be ABSOLUTELY COMPATIBLE.
 CONFLICT BETWEEN GENERAL AND SPECIAL LAWS – It is basic
in statutory construction that the enactment of a later
legislation which is a general law cannot be construed to have
repealed a special law. It is a well-settled rule in this
jurisdiction that “a special statute, provided for the particular
case, or class of cases, is not repealed by a subsequent
statute, general in terms, provision and application, unless
the intent to repeal or alter is manifest, although the terms of
the general law are broad enough to include the cases
embraced in the special law.”
 GENERAL LAW ENACTED PRIOR TO SPECIAL
LAW – IF the general law was enacted
PRIOR (BEFORE) to the special law, the
LATTER is considered the EXCEPTION to the
general law. Therefore, the general law, in
general remains a good law, and there is
no repeal, except insofar as the exception
or special law is concerned.
 GENERAL LAW ENACTED AFTER SPECIAL
LAW – IF the general law was enacted
AFTER the special law, the special law
remains unless:
1.) There is an express declaration to
the contrary; or
2.) There is a clear, necessary, and
irreconcilable conflict; or
3.) Unless the subsequent general law
covers the whole subject and is
clearly intended to replace the
special law on the matter.
 EFFECT OF REPEAL OF REPEALING LAWS – The effect of such
shall depend on whether the previous repeal was expressed
or implied:
1.) EXPRESS REPEAL – When a law which expressly repeals a
prior law is itself repealed, the law first repealed shall not be
thereby revived unless expressly so provided.
2.) IMPLIED REPEAL – When a law which impliedly repeals a prior
law is itself repealed, the prior law shall thereby be revived,
unless the repealing law provides otherwise.
 If a law, administrative or executive acts, orders and
regulations are inconsistent with the Constitution, they are
considered NOT VALID.
 EFFECT OF DECLARATION OF UNCONSTITUTIONALITY – Under
Article 7 of the Civil Code, “when the courts declare a law to
be inconsistent with the Constitution, the former shall be
void and the latter shall govern.” This, however, is the
orthodox view. Our Supreme Court has already rejected the
view that an unconstitutional act confers no rights, imposes
no duties, and affords no protection whatsoever. Instead, the
Court adopted the view that before an act is declared
unconstitutional, it is an “OPERATIVE FACT” which can be the
source of rights and duties.
 DOCTRINE OF OPERATIVE FACT - recognizes the existence of
the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced
consequences that cannot always be erased, ignored, or
disregarded. In short, it nullifies the void law or executive act
but sustains its effects. It provides exception to the general
rule that a void or unconstitutional law produces no effect.
But its use must be subjected to great scrutiny and
circumspection, and it cannot be invoked to validate an
unconstitutional law or executive act but is resorted to only
as a matter of equity and fair play. It applies only to cases
where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent
conditions that will permit its application.
ARTICLE 8 – JUDICIAL DECISIONS
JUDICIAL DECISIONS APPLYING OR INTERPRETING THE LAWS OR THE
CONSTITUTION SHALL FORM A PART OF THE LEGAL SYSTEM OF THE
PHILIPPINES.
 WHILE these decisions are not laws pursuant to the doctrine
of separation of powers, they evidence the laws’ meaning,
breadth, and scope and, therefore, have the same binding
force as the laws themselves. The Supreme Court’s
interpretation of a statute forms part of the law as of the
date it was originally passed because the Court’s construction
merely establishes the contemporaneous legislative intent
that the interpreted law carries into effect. The settled rule
supported by numerous authorities is a restatement of the
legal maxim, “legis interpretation legis vim obtinet” – the
interpretation placed upon the written law by a competent
court has the force of law.
 Article 8 of the NCC embodies the basic principle of stare
decisis et non quieta movere (to adhere to precedents and
not to unsettle established matters) enjoins adherence to
judicial precedents embodied in the decision of the Supreme
Court.
 The doctrine of stare decisis is based on the principle that
once a question of law has been examined and decided, it
should be deemed settled and closed to further argument.
The doctrine of HORIZONTAL STARE DECISIS is one of policy,
grounded on the necessity of securing certainty and stability
of judicial decisions. The doctrine, however, DOES NOT mean
blind adherence to precedents. If the doctrine is found to be
contrary to law or erroneous, it should be abandoned.
 NOTE THAT ONLY DECISIONS OF THE SUPREME COURT
establish jurisprudence or doctrine in this jurisdiction. Hence,
only decisions of the Supreme Court are considered in the
application of the doctrine of stare decisis.
 NOTE THAT the decisions of subordinate courts are only
persuasive in nature and can have no mandatory effect.
However, this rule does not militate against the fact that a
conclusion or pronouncement of the Court of Appeals which
covers a point of law still undecided in the Philippines may
still serve as a judicial guide to the inferior courts.
 NOTE THAT while an interpretation upon a law by the
Supreme Court constitutes, in a way, a part of the law as of
the date that law originally passed, however, when a doctrine
of the Court is overruled and a different view is adopted, the
new doctrine should be applied PROSPECTIVELY, and should
 not apply to parties who had relied on the old doctrine and
acted on the faith thereof.
ARTICLE 9 – NO JUDGE…
NO JUDGE OR COURT SHALL DECLINE TO RENDER JUDGMENT BY REASON
OF SILENCE, OBSCURITY, OR INSUFFICIENCY OF THE LAWS.
 This provision is applicable to criminal prosecutions. The
judge may not decline to render a judgment. Instead, the
judge must dismiss the criminal action. Applying the rule
“nullum crimen, nulla poena sine lege” (there is no crime
when there is no law punishing it) the judge must dismiss the
case if somebody is accused of non-existent crime.
 If the law is silent or is obscure or insufficient with respect to
a particular controversy, the judge shall apply the custom of
the place, and in default thereof, the general principles of law
and justice.
ARTICLE 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.
 NOTE THAT the first duty of the judge is to apply the law—
whether it be wise or not, whether unjust—provided that the
law is clear, and there is no doubt. What the law grants, the
court cannot deny. Courts are also not the forum to plead for
sympathy. The remedy is ELSEWHERE—EXECUTIVE CLEMENCY
or an AMENDMENT of the law.
 The Supreme Court has always held that EQUITY (“justice
outside legality”) is applied only in the absence of, and never
against, statutory law or judicial rules of procedure. It cannot
bestow equity contrary to the clear provisions of the law.
ARTICLE 11 AND 12 – CUSTOMS
ARTICLE 11
CUSTOMS WHICH ARE CONTRARY TO LAW, PUBLIC ORDER OR PUBLIC
POLICY SHALL NOT BE COUNTENANCED (TOLERATED).
ARTICLE 12
A CUSTOM MUST BE PROVED AS A FACT, ACCORDING TO THE RULES OF
EVIDENCE.
 CUSTOM – is a
1.) Rule of conduct
2.) Formed by repetition of acts
3.) Uniformly observed as a social rule,
4.) Legally binding and obligatory
 REQUISITES IN APPLICATION OF CUSTOMS – The following are
the requisites before a custom may have the force of
suppletory rule:
1.) Plurality of acts, or various resolutions of a juridical question
raised repeatedly in life;
2.) Uniformity, or identity of acts or various solutions to the
juridical question;
3.) General practice by the great mass of the social group;
4.) Continued performance of there acts for a long period of
time;
5.) General conviction that the practice corresponds to a juridical
necessity or that it is obligatory; and
6.) The practice must not be contrary to law, morals, or public
order.
 Customs are not subject to judicial notice because they must
be proven as a fact, according to the rules of evidence.
ARTICLE 13 – PERIODS
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.
 Under the Civil Code, a year is equivalent to 365 days
whether it be a regular year or a leap year. Under the
ADMINISTRATIVE CODE OF 1987, however, a year is
composed of 12 CALENDAR MONTHS. Needless to state, the
number of days here is irrelevant. For this reason, the
Supreme Court in Commissioner of Internal Revenue v.
Primetown Property Group, Inc. recognized the IMPLIED
REPEAL of Article 13 of the Civil Code, insofar as the meaning
of “years” is concerned, by the provisions of Section 31,
Chapter VIII, Book I of the Administrative Code of 1987, the
latter being the more recent law.
 A calendar MONTH is a month designated in the calendar
without regard to the number of days it may contain. It is the
period of time running at the beginning of a certain
numbered day up to, but not including, the corresponding
numbered day of the next month, and if there is not a
sufficient number of days in the next month, then up to and
including the last day of that month.
 Illustration: ONE CALENDAR MONTH from
December 31, 2007 will be from January 1, 2008
to January 31, 2008; one calendar month from
January 31, 2008 will be from February 1, 2008
until February 29, 2008.
 COMPUTING PERIOD – In computing a period, the first day is
excluded while the last day is included.
 Illustration: A defendant in an ordinary civil case
is given, under the rules, a period of 15 days to
file his Answer to a Complaint counted from the
receipt of the summons. If the summons was
received by the defendant on March 1, the day of
the receipt of the summons being excluded in the
counting of the 15-day period, the fifteen-day
period will therefore expire on March 16.
 IF LAST DAY FALLS ON SATURDAY, SUNDAY, OR LEGAL
HOLIDAY – IF THE LAST DAY IS AS MENTIONED, WHETHER the
act is due that day or the following day will depend on the
following:
 IN AN ORDINARY CONTRACT, the AGREEMENT of
the party prevails. This is because obligations
arising from the contracts have the fore of law
between the contracting parties.
 UNDER THE RULES OF COURT, WHEN the time
refers to a period prescribed or allowed by the
ROC, or by the order of the court, or by any
applicable statute, if the last day of the period
falls on a Saturday, Sunday or a legal holiday in
the place where the court sits, THE TIME SHALL
NOT RUN UNTIL THE NEXT WORKING DAY.
ARTICLE 14 – PENAL LAWS
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.
 This provision embodies ONE of the THREE CHARACTERISTICS
of our Criminal Law—which is GENERALITY. As a rule,
CRIMINAL LAW IS BINDING ON ALL PERSONS WHO LIVE OR
SOJOURN (TEMPORARY STAY) in the Philippine territory.
 EXCEPTIONS:
1.) TREATY STIPULATIONS – An example of this is the
Military Bases Agreement between the Republic
of the Philippines and the United States of
America in 1947. Under this agreement, the
Philippine courts have no jurisdiction over
felonies committed within the Philippines:
a.) WHEN THE OFFENSE is
committed within a military
base (UNLESS BOTH the
offender and the offended are
Filipino civilians OR the
offense is AGAINST THE
SECURITY OF THE
PHILIPPINES);
b.) WHEN THE OFFENSE is
committed OUTSIDE of the
bases BUT BOTH the offender
and the offended are U.S.
military personnel; AND
c.) WHEN THE OFFENSE is
committed by a member of a
 U.S. Armed Forces against the
security of the United States.
2.) LAWS OF PREFERENTIAL APPLICATION – An
example of this is Republic Act No. 75. This law
prohibits the issuance of any warrant of arrest
against any ambassador or public minister of any
foreign state, authorized and received as such by
the President, including their domestics and
domestic servants registered in the Department
of Foreign Affairs.
3.) PRINCIPLES OF PUBLIC INTERNATIONAL LAW – It
is a well-established principle of public
international law that diplomatic
representatives, such as ambassadors or public
ministers and their official retinue, possess
immunity from the criminal jurisdiction of the
country of their sojourn, and cannot be sued,
arrested or punished by the law of that country.
Heads of state likewise possess immunity from
the criminal jurisdiction of our country.
HOWEVER, a consul is NOT ENTITLED to the
privileges and immunities of an ambassador or
minister but is subject to the laws and
regulations of the country to which he is
accredited. He is NOT EXEMPT from criminal
prosecution for violations of the laws of the
country where he resides.
ARTICLE 15 – LAWS RELATING TO:
1.) FAMILY RIGHTS and
2.) DUTIES, or to the
3.) STATUS,
4.) CONDITION and
5.) LEGAL CAPACITY OF PERSONS ARE BINDING UPON CITIZENS
OF THE PHILIPPINES, EVEN THOUGH LIVING ABROAD.
 The NCC follows the NATIONALITY RULE (“nationality” means
“a people having a common origin, tradition, and language
and capable of forming or actually constituting a nation-state)
where laws are binding upon Filipinos even though living
abroad.
 Example:
Article 68 of the Family Code provides that “the
husband and wife are obliged to live together,
observe mutual love, respect and fidelity, render
mutual help and support.” Suppose, Maria and
Jose, Filipino couple, residing in Switzerland.
Assuming that under the Swiss laws, the spouses
are not obliged to support each other, may Jose
refuse to support Maria?
ANSWER: NO. Since they are FILIPINO CITIZENS,
they are still governed by the Family Code even
though they are living abroad. Under the Family
Code, the spouses are obliged to support each
other.
 DIVORCE BETWEEN FILIPINOS, NOT VALID –
Philippine laws DOES NOT provide for absolute
divorce; HENCE, our courts cannot grant it. A
marriage between two Filipinos CANNOT BE
DISSOLVED even though living abroad. (Articles
15 and 17 of the Family Code) Any absolute
divorce of two Filipinos SHALL NOT BE
RECOGNIZED. The non-recognition of absolute
divorce in the Philippines is a manifestation of
the respect for the sanctity of the marital union
especially among Filipino citizens.
 NOTE THAT THE FAMILY CODE recognizes ONLY
TWO TYPES of marriage—a.) VOID and b.)
VOIDABLE MARRIAGES (where void marriages
are considered unlawful in themselves, they do
not need any formalities to be terminated. On
the other hand, a voidable marriage is one that is
flawed in its validity but continues to exist). IN
BOTH CASES, the basis for the judicial declaration
of the absolute nullity or annulment of marriage
exists BEFORE, OR AT THE TIME OF THE
MARRIAGE. Divorce, on the other hand,
contemplates the dissolution of the lawful union
for the cause arising AFTER the marriage.
 DIVORCE OBTAINED BY FOREIGNERS – Owing to
the nationality principle of the Philippine laws,
ONLY Philippine nationals are covered by the
policy against absolute divorces. However,
ALIENS MAY OBTAIN DIVORCE DIVORCES
ABROAD, which may be recognized in the
Philippines, provided they are valid according to
their national law.
 RECKONING POINT IN DETERMINING CITIZENSHIP – For
purposes of determining the validity of absolute divorces
obtained abroad, the reckoning point is NOT the citizenship
of the divorcing parties AT BIRTH OR AT THE TIME OF THE
MARRIAGE, but their CITIZENSHIP AT THE TIME A VALID
DIVORCE IS OBTAINED ABROAD.
 SUMMARY:
1.) A divorce obtained abroad by an alien married to a Philippine
national may be RECOGNIZED in the Philippines (provided it is
valid according to the national law of the foreigner).
2.) The reckoning point is not the citizenship of the divorcing
parties AT BIRTH OR AT THE TIME OF THE MARRIAGE, but
their CITIZENSHIP AT THE TIME A VALID DIVORCE IS
OBTAINED ABROAD.
3.) An ABSOLUTE DIVORCE secured by two Filipinos is CONTRARY
to our public policy and morality and shall not be recognized
in this jurisdiction.
 When a foreigner, married to a Filipino citizen, obtained
divorce abroad, he is no longer the husband of the Filipino
citizen and therefore losses the standing to sue for adultery.
 PARTIAL DIVORCE UNDER ARTICLE 26 OF THE FAMILY CODE –
In a mixed marriage (a Filipino and an alien), the Filipino
spouse is ALLOWED to contract a SUBSEQUENT MARRIAGE in
case the divorce is “validly obtained abroad by the alien
spouse capacitating him or her to remarry.”
 WITH RESPECT to aliens, their national law shall GOVERN
with respect to their legal capacity.
ARTICLE 16 – REAL AND PERSONAL PROPERTY
REAL PROPERTY AS WELL AS PERSONAL PROPERTY IS SUBJECT TO THE
LAW OF THE COUNTRY WHERE IT IS SITUATED. HOWEVER, INTESTATE
AND TESTAMENTARY SUCCESSIONS, BOTH WITH RESPECT TO THE:
1.) ORDER OF SUCCESSION AND TO THE
2.) AMOUNT OF SUCCESSIONAL RIGHTS AND TO THE
3.) INTRINSIC VALIDITY OF TESTAMENTARY PROVISIONS,
SHALL BE REGULATED BY THE NATIONAL LAW OF THE PERSON WHOSE
SUCCESSION IS UNDER CONSIDERATION, WHATEVER MAY BE NATURE OF
THE PROPERTY AND REGARDLESS OF THE COUNTRY WHEREIN SAID
PROPERTY MAY BE FOUND.
 PRINCIPLE OF LEX (LOCI) REI SITAE – Lex rei sitae is a legal
doctrine of property law and of International private law. It is
Latin for "the law where the property is situated". The law
governing the transfer of title to property is dependent upon,
and varies with, the lex rei sitae. It is a universal principle that
REAL or IMMOVABLE PROPERTY is exclusively subject to the
laws of the country or state where it is located. The reason is
found in the very nature of immovable property—its
IMMOBILITY. Immovables are PART of the country and
connected to it that all rights over them have their natural
center of gravity there.
 ALL MATTERS concerning the title and disposition of real
property are determined by this principle which can ALONE
prescribe the mode by which a title can pass from one person
to another, or by which interest therein can be gained or lost.
It includes ALL rules governing the descent, alienation and
transfer of immovable property and validity, effect and
construction of wills and other conveyances. It even governs
the CAPACITY of the person making a deed relating to
immovable property, no matter what its nature may be.
 EXCEPTIONS:
The second paragraph of the provision renders
lex rei sitae inapplicable in the matter of
INTESTATE and TESTATE succession of the
decedent (or the deceased). (“Testate” means
 that a valid will exists for an estate at the time of
a person's death. Conversely, “intestate” means
that a person died without a will. You might hear
it used in the context like “John Doe died
intestate.”) Instead, what is applicable is the
NATIONAL LAW of the decedent, with respect to
the:
1.) ORDER OF SUCCESSION AND TO THE
2.) AMOUNT OF SUCCESSIONAL RIGHTS AND TO
THE
3.) INTRINSIC VALIDITY OF TESTAMENTARY
PROVISIONS OF THE WILL. In addition, the
national law of the decedent likewise governs
the capacity of the heir to succeed.
 RENVOI DOCTRINE – Renvoi literally means referring back;
the problem arises when there is a doubt as to whether a
reference to a foreign law is a reference to the internal law of
the said foreign law; or a reference to the whole of the
foreign law, including its conflict rules.
ARTICLE 17 – FORMS AND SOLEMNITIES
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 THE 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.
 FORMALITIES AND EXTRINSIC VALIDITY - Under the first
paragraph of Article 17, forms and solemnities of contracts,
wills and other public instruments are governed by the laws
of the country in which they are executed under the principle
of “lex loci celebrationis”. Lex loci celebrationis relates to the
law of the place of the ceremony or the law of the place
where a contract is made. It controls the nature,
construction, and validity of the contract and it may pertain
to the law voluntarily agreed upon by the parties or the law
intended by them either expressly or implicitly.
 INTRINSIC VALIDITY OF CONTRACTS – is governed by the
proper law of the contract or “lex cotractus,” which may
either be the law of the place voluntarily agreed upon by the
contracting parties (“lex loci voluntatis”) or the law of the
place intended by them expressly or impliedly (lex loci
intentionis”).
 The intrinsic validity of the provisions of the WILL, however,
shall be governed by the national law of the decedent.
 Illustration:
Juan, a Filipino citizen, enters an ordinary contract with
Joe, an American citizen. The contract was executed in
Canada. What law shall govern: (1) formal validity of
the contract? (2) the legal capacities of the parties to
enter into such contract? (3) the intrinsic validity of the
contract?
ANSWER:
(1) Canadian law, under the principle of lex loci
celebrationis.
(2) Their respective national laws.
(3) The proper law of the contract (lex cotractus),
which may either be the law of the place
voluntarily agreed upon by the contracting
parties (lex loci voluntatis) or the law of the place
intended by them expressly or impliedly (lex loci
intentionis).
 ACTS EXECUTED BEFORE DIPLOMATIC AND CONSULAR
OFFICIALS – The solemnities of the Philippine laws shall be
observed in the acts executed by the diplomatic and consular
officials of the Philippines in a foreign country.
 PROHIBITIVE LAWS shall NOT be rendered ineffective by laws
or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.
ARTICLES 19, 20 AND 21 – HUMAN RELATIONS/“CARDINAL LAW ON
HUMAN CONDUCT”
ARTICLE 19 – EVERY PERSON MUST, IN THE EXERCISE OF HIS RIGHTS AND
IN THE PERFORMANCE OF HIS DUTIES,
1.) ACT WITH JUSTICE,
2.) GIVE EVERYONE HIS DUE, AND
3.) OBSERVE HONESTY AND GOOD FAITH.
ARTICLE 20 – EVERY PERSON WHO, CONTRARY TO LAW, WILLFULLY OR
NEGLIGENTLY CAUSES DAMAGE TO ANOTHER, SHALL INDEMNIFY THE
LATTER FOR THE SAME.
ARTICLE 21 – ANY PERSONW WHO WILLFULLY CAUSES LOSS OR INJURY TO
ANOTHER IN A MANNER THAT IS CONTRARY TO:
1.) MORALS,
2.) GOOD CUSTOMS OR
3.) PUBLIC POLICY SHALL COMPENSATE THE LATTER FOR THE
DAMAGE.
 Articles 19 to 36 are devoted to the basic principles that are
to be observed for the rightful relationship between human
beings and for the stability of the social order.
 PRINCIPLE OF DAMNUM ABSQUE INJURIA – damage resulting
from the legitimate exercise of a person’s rights is a LOSS
WITHOUT INJURY for which the law GIVES NO REMEDY. This
principle is premised on the VALID EXERCISE OF A RIGHT.
However, this is NOT applicable when there is a clear abuse
of a person’s rights, or when the exercise of this right is
suspended or extinguished pursuant to a court order.
 PRINCIPLE OF ABUSE OF RIGHTS – When a right is exercised in
a manner which does not conform with the norms enshrined
in Article 19 and results in damage to another, a LEGAL
WRONG is thereby committed for which the wrongdoer must
be held responsible. THE ABSENCE OF GOOD FAITH IS
ESSENTIAL TO THE ABUSE OF RIGHT. Good faith is an honest
intention to abstain from taking any unconscientious
advantage of another.
 ELEMENTS OF ABUSE OF RIGHTS:
1.) There is a legal right or duty;
2.) Which is exercised in bad faith;
3.) For the sole intent of prejudicing or injuring another
 What is sought to be written into the law is the pervading
principle of EQUITY and JUSTICE above strict legalism.
 Article 20 and 21 provides the ACTION FOR DAMAGES.
 Article 20 speaks of the GENERAL SANCTION for all other
provisions of law which do not especially provide for their
own sanction.
 Article 21 deals with acts contra bonus mores (against good
morals), and has the following elements:
1.) There is an act which is legal;
2.) But which is contrary to:
a.) Morals
b.) Good customs
c.) Public order, or
d.) Public policy; and it is
3.) Done with intent to injure.
 There is a common element under Articles 19 and 21, and
that is, the act must be intentional. However, Article 20 does
not distinguish; the act must be done either “willfully” or
“negligently.” Thus, under any of these three provisions of
law, an act which causes injury to another may be an award
of damages.
 ADDITIONAL: The existing rule is that a breach of promise to
marry per se is not an actionable wrong. To be actionable,
there must be some act independent of the breach of
promise to marry such as:
1.) If there is fraud or deceit.
2.) If expenses are actually incurred.
3.) When woman was forcibly abducted and raped.
 The action for damages arising from malicious prosecution is
anchored on the provisions of Article 21 of the NCC. Malice
and want of probable cause must both exist to justify a suit
for malicious prosecution.
 REQUISITES OF MALICIOUS PROSECUTION – In order for the
malicious prosecution suit to prosper, the plaintiff must
prove:
 1.) The fact of the prosecution and the further fact that the
defendant himself was the prosecutor, and that the action
was finally terminated with an acquittal;
2.) That in bringing the action, the prosecutor acted without
probable cause; and
3.) That the prosecutor was actuated or impelled by legal malice
that is improper or sinister motive.
ARTICLE 22 AND 23 – UNJUST ENRICHMENT
ARTICLE 22 – EVERY PERSON WHO THROUGH AN ACT OR 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.
ARTICLE 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.
 This provision embodies the maxim Nemo ex alterius
incommode debet lecuptari (no man ought to be made rich
out of another’s injury). Unjust enrichment exists when a
person unjustly retains benefit to the loss of another, or
when a person retains money or property of another against
the fundamental principles of justice, equity, and good
conscience. There is unjust enrichment when:
1.) A person is unjustly benefited, and
2.) Such benefit is derived at the expense of or with damages to
another.
 An action for the RECOVERY of what has been paid or
delivered without just cause or legal ground is called ACCION
IN REM VERSO. The purpose of the action is to prevent unjust
enrichment, which exists when a person unjustly retains a
benefit to the loss of another, or when a person unjustly
retains a benefit or loss of another, or when a person retains
money or property of another against the fundamental
principles of justice, equity ir good conscience.
 DISTINGUISHED FROM SOUTIO INDEBTI – Solutio indebti is
provided in Article 2154 of the NCC as follows: “If something
is received when there is no right to demand it, and it was
unduly delivered through mistake, the OBLIGATION TO
RETURN IT arises.”
 This doctrine is applied only when:
1.) A payment is made when there exists NO binding relation
between the payor, who has no duty to pay, and the person
who received the payment; and
2.) The payment is made through mistake and not through
liberality or some other cause.
 MISTAKE IS AN ESSENTIAL ELEMENT IN SOLUTIO INDEBTI. But
in the accion in rem verso, it is NOT NECESSARY that there
should have been mistake in the payment.
 An accion in rem verso is considered merely an auxiliary
action, available only when there is no other remedy on
contract, quasi-judicial contract, crime or quasi-delict. NOTE
THAT if there is an obtainable action under ay other
institution of positive law, that action must be resorted to,
and the principle of accion in rem verso will not lie. Hence, if
the delivery is by reason of mistake, the action must be based
on the quasi-contract of solution indebti and not under in
rem verso.
 REQUISITES OF ACCION IN REM VERSO
1.) That the defendant has been enriched;
2.) That the plaintiff has suffered a loss;
3.) That the enrichment of the defendant is without just or legal
ground; and
4.) That the plaintiff has no other action based on contract,
quasi-contract, crime, or quasi-delict.
 The principle of unjust enrichment contemplates PAYMENT
when there is not duty to pay, and the person who receives
the payment has no right to receive it.
 CAN THERE BE LIABILITY WITHOUT FAULT OR NEGLIGENCE?
YES. Article 23 of the NCC now recognizes liability without
fault or negligence, even when the event producing loss to
others may be accidental or fortuitous, so long as another
person is benefited through such event or act.
 What is contemplated under Article 23 is an involuntary act
or an act which though foreseen could not have been
avoided. An involuntary act, because of its character CANNOT
generally create an obligation; but when by such act its
author has been enriched, it is only just that he should
indemnify the damages caused, to the extent of his
enrichment.
ARTICLE 31 – INDEPENDENT CIVIL ACTION
NOTE: ARTICLES 32, 33 AND 34 SHOULD BE READ IN RELATON TO THIS
FOR A BETTER CONTEXT.
WHEN 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 CRIMINAL
PROCEEDINGS
AND REGARDLESS OF THE RESULT OF THE LATTER.
 RULE OF IMPLIED INSTITUTION – When a criminal action is
instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted
with the criminal action UNLESS the offended party waives
the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action. NOTE
THAT what is impliedly instituted with the criminal action is
the civil action for the recovery of civil liability based on
delict.
 WHEN CIVIL ACTION IS RESERVED – The reservation of the
right to institute separately the civil action shall be made
before the prosecution starts presenting its evidence and
under circumstances affording the offended party a
reasonable opportunity to make such reservation. The
separate civil action cannot be instituted until final judgment
has been entered in the criminal action.
 WHEN CIVIL ACTION IS INSTITUTED PRIOR TO CRIMINAL
ACTION – If the criminal action is instituted after the said civil
action has already been instituted, the latter shall be
suspended in whatever stage it may be found before
judgment on the merits. The suspension shall last until final
judgment is rendered in the criminal action. Nevertheless,
before judgment on the merits is rendered in the civil action,
the same way, upon motion of the offended party, be
consolidated with the criminal action.
 WHEN CIVIL ACTION IS INSTITUTED, BUT NO CRIMINAL
ACTION – 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 be sufficient to prove
the act complained of.
 JUSTICE CAPISTRANO EXPLAINED ARTICLE 31 SIMPLY IN THIS
EXAMPLE:
 “A is prosecuted for the crime of reckless
imprudence resulting in homicide. The heirs of
the deceased institute a civil action for damages
against him based upon quasi-delict, under
Article 2177 of the Civil Code, which is separate
and distinct from criminal negligence punished as
a crime or delict under the Revised Penal Code.
 Quasi-delict is culpa aquiliana and is separate
and distinct from criminal negligence, which is a
delict. In accordance with Article 31, the civil
action for damages based upon quasi-delict MAY
PROCEED INDEPENDENTLY of the criminal
proceeding for criminal negligence and
regardless of the result of the latter. HENCE, even
if the defendant is acquitted in the criminal
action of the charge of reckless imprudence
resulting in homicide, the civil action for damages
for the death of the deceased based upon quasi-
delict may proceed to judgment.
ARTICLE 36 – PREJUDICIAL QUESTIONS
PREJUDICIAL QUESTIONS, WHICH
1.) MUST BE DECIDED BEFORE ANY CRIMINAL PROSECUTION
MAY BE INSTITUTED OR MAY PROCEED,
2.) SHALL BE GOVERNED BY THE RULES OF COURT WHICH THE
SUPREME COURT SHALL PROMULGATE AND WHICH
 3.) SHALL NOT BE IN CONFLICT WITH THE PROVISIONS OF THIS
CODE.
 PREJUDICIAL QUESTION – has been identified to be the one
which arises in a case, the resolution of which question is
LOGICAL ANTECEDENT of the issue involved in the said case.
It is based on a fact distinct and separate from the crime but
so intimately connected with it that it determines the guilt or
the innocence of the accused, and for it to suspend the
criminal action, it must appear not only that said case
involves facts intimately related to those upon which a
criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the
guilt or innocence of the accused would necessarily be
determined.
 A prejudicial question usually comes into play in a situation
where civil action and a criminal action both pend and there
exists in the former an issue which must be preemptively
resolved before the criminal action may proceed, because
howsoever the issue raised in the civil action is resolved
would be determinative juris et de jure (conclusive
presumptions of law, which cannot be rebutted by evidence)
of the guilt or innocence of the accused in the criminal case.
 ELEMENTS OF PREJUDICIAL QUESTION
1.) The previously instituted civil action involves an issue
similarly or intimately related to the issue raised in the
subsequent criminal action, and
2.) The resolution of such issue determines whether or not the
criminal action may proceed. NOTE THAT it is the issue in the
civil action that is prejudicial to the continuation of the
criminal action, and NOT VICE VERSA.
 SUSPENSION OF PROCEEDINGS – A petition for suspension of
the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in the
court for trial, the petition to suspend shall be filed in the
same criminal action at any time the prosecution rests. NOTE
THAT the rule authorizes ONLY the suspension of criminal
action and not its dismissal by reason of a prejudicial
question.
 ADMINISTRATIVE CASE DOES NOT CONSTITUTE PREJUDICIAL
QUESTION TO THE CRIMINAL PROSECUTION.
 A criminal prosecution will not constitute prejudicial question
even if the same facts and circumstances are attendant in the
administrative proceedings for the disbarment or suspension
of a member of the bar because administrative cases against
lawyers BELONG TO A CLASS OF THEIR OWN. They ae distinct
from and they may proceed independently of civil and
criminal cases.
ARTICLE 37 – CIVIL PERSONALITY
ARTICLE 37 – JURIDICAL CAPACITY, WHICH IS THE FITNESS TO BE THE
SUBJECT OF LEGAL RELATIONS, IS INHERENT IN EVERY NATURAL PERSON
AND IS ONLY LOST THROUGH DEATH. CAPACITY TO ACT, WHICH IS THE
POWER TO DO ACTS WITH LEGAL EFFECT, IS ACQUIRED AND MAY BE
LOST.
 PERSON – any being susceptible of rights and obligations, or
more specifically, it is every:
1.) Physical or
2.) Moral
3.) Real or
4.) Juridical, and
5.) Legal being susceptible of rights and obligations or being the
subject of legal relations.
 KINDS OF PERSONS:
1.) Natural or physical persons – human beings
2.) Juridical or artificial persons – artificial beings susceptible of
rights and obligations or of being the subject of legal relations
 PERSONALITY – is the APTITUDE (INCLINATION OR
TENDENCY) to be the subject, active or passive, of juridical
relations.
 JURIDICAL CAPACITY AND THE CAPACITY TO ACT – CAPACITY
is synonymous with PERSONALITY because it implies aptitude
o be the subject of rights and obligations, that is, JURIDICAL
RELATIONS. But this aptitude may manifest in TWO WAYS:
1.) As aptitude of the subject for the mere holding or enjoyment
of rights’
2.) As aptitude for the exercise of such rights and to consummate
juridical acts
 THE UNION OF BOTH JURIDICAL CAPACITY AND THE
CAPACITY TO ACT CONSTITUTES FULL CIVIL CAPACITY.
 DISTINCTIONS BETWEEN JURIDICAL CAPACITY AND CAPACITY
TO ACT
1.) JC is a STATIC CONDITION of the subject while CA is dynamic.
2.) JC is the aptitude to be the subject of rights and obligations,
the abstract possibility of receiving legal effects while CA is
the power to give life to juridical acts, to execute acts with
legal effect;
3.) JC is one indivisible, irreducible, and essentially the same
always and for all men while CA does not exist in all men nor
does it exist to the same extent;
4.) In JC, it is enough that the person exists; it is inherent and
ineffaceable attribute, but for the latter, intelligence and
volition is required and since these do not exist in all men nor
to the same extent, the law denies capacity to act absolutely
to some and limits it with regard to others;
5.) JC is lost only through death while CA may be lost through
other means or circumstances; and
6.) JC cannot be limited or restricted while the CA can be limited
or restricted by certain circumstances.
CHAPTER 2 – NATURAL PERSONS
ARTICLE 40 – WHEN CIVIL PERSONALITY BEGINS IN NATURAL PERSONS
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.
ARTICLE 41 – WHEN A CHILD IS CONSIDERED BORN
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.
ARTICLE 42 – EXTINGUISHMENT OF CIVIL PERSONALITY
CIVIL PERSONALITY IS EXTINGUISHED BY DEATH.
 PERSONALITY is determined on whether a natural person is
born with the requisites required by law. According to the
NCC, it is BIRTH that gives personality in the case of human
beings and unless a being is born, he is not considered a
person. HOWEVER, for civil purposes which are favorable to
it, the fetus although not born subsequently with the
requisites required by law.
 WHEN IS A PERSON DEEMED “BORN” – Complete delivery
means cutting the umbilical cord so that if after the cutting of
the umbilical cord the child is alive, even only for a few hours,
it considered a person. This rule applies only if the fetus had
an intra-uterine life of less than seven months.
 EXCEPTIONALLY, HOWEVER, s conceived child which is STILL
INSIDE THE MOTHER’S WOMB IS DEEMED “BORN,” HENCE,
considered a person, but subject to the following conditions:
1.) IT IS DEEMED BORN ONLY FOR PURPOSES THAT ARE
FAVORABLE TO IT.
2.) IT MUST BE BORN LATER UNDER THE CONDITIONS SPECIFIED
IN ARTICLE 41 OF THE CIVIL CODE.
 A conceived child, although yet unborn, is given by law a
PROVISIONAL PERSONALITY of its own for all purposes
favorable to it. The law considers the conceived child as born
for all civil purposes favorable to it if it is later born alive. Its
personality, therefore, has two characteristics:
1.) IT IS ESSENTIALLY LIMITED because it is only for purposes
favorable to the child, and
2.) IT IS PROVISIONAL OR CONDITIONAL because it depends
upon the child being born alive later, such that if it is not born
alive, its personality disappears as if it had never existed. The
requirement, however, that the conceived child must be
“born later with the conditions specified in Article 41” is not a
condition precedent to the right of the conceived child; for if
it were, the first part of Article 40 would become entirely
useless and ineffective.
  RIGHTS OF A CONCIEVED CHILD:
1.) The unborn child has a right to support from its progenitors,
even if said child is only “en ventre de sa mere;”
2.) It may receive donations as prescribed by Article 742 of the
NCC; and
3.) It may not be ignored by the parent in his testament;
otherwise, it may result in preterition of a forced heir that
annuls the institution of the testamentary heir, even if such
child should be born after the death of the testator.
 WHEN TO APPLY ARTICLES 40 AND 41 – Articles 40, 41 and 42
must be applied in relation to ARTICLE 37 of the same Code.
 There is NO NEED to establish the civil personality of the
unborn child if his/her juridical capacity and capacity to act as
a person are not in issue and the case is not whether the
unborn child has acquired any rights or incurred any
obligations prior to his/her death that were passed on to or
assumed by the child’s parents. HENCE, when the issue in a
case pertains directly to the rights of the parents of the
unborn child, the above-mentioned provisions do not apply.

ARTICLE 43 – PRESUMPTION OF SURVIVORSHIP

IF THERE IS DOUBT, AS BETWEEN TWO OR MORE PERSONS WHO ARE
CALLED TO SUCCEED EACH OTHER, AS TO WHICH OF THEM DIED FIRST,
WHOEVER ALLEGES THE DEATH OF ONE PRIOR TO THE OTHER, WHOEVER
ALLEGES TO 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.
 APPLICATION OF ARTICLE 43 – This applies ONLY when the
question of survivorship involves persons “who are called to
succeed each other” and is not applicable where there is no
question of succession. HENCE, for this provision to apply,
TWO REQUISITES MUST BE SATISFIED:
1.) The question of survivorship involves persons who are called
to succeed each other; and
2.) The issue involves successional rights.
IF BOTH REQUISITES ARE PRESENT, this provision can already then
be invoked.
 EXAMPLE:
Father and son died on the same day but the exact hours of
their death cannot be determined, it is presumed that they
died at the same time and there shall be no transmission of
rights from one to the other.
 APPLICATION OF RULE ON SURVIVORSHIP UNDER THE RULES
OF COURT – NOTE THAT WHEN THERE IS NO QUESTION OF
SUCCESSIONAL RIGHTS OR WHEN PERSONS INVOLVED ARE
NOT CALLED TO SUCCEED EACH OTHER, IT IS THE RULE OF
SURVIVORSHIP UNDER THE RULES OF COURT THAT SHALL
GOVERN AND NOT ARTICLE 43 OF THE CIVIL CODE.
 Thus, when two persons perish in the same calamity, such as
wreck, battle or conflagration, and it is not shown who died
first, and there are no particular circumstances from which it
can be inferred, the survivorship is determined from the
probabilities resulting from the strength of and age of the
sexes, according to the following rules:
1.) If both were under the age of 15 years, the older is deemed
to have survived;
2.) If both were above the age of 60, the younger is deemed to
have survived;
3.) If one is under 15 and the other above 60, the former is
deemed to have survived;
4.) If both be over 15 and under 60, and the sex be different, the
male is deemed to have survived; if the sex be the same, the
older; and
5.) If one be under 15 or over 60, and the other between those
ages, the latter is deemed to have survived.