February 09, 2019

15 PHRASES THAT LAW STUDENTS SHOULD KEEP IN MIND

Here are 15 phrases in law school that law students should NEVER forget. These are common
refrains or keywords in textbooks and Supreme Court decisions that may prove handy as they
move up from first year to fourth year in law school. Better know them now before it's too late?

[1] Serve and file

The rule regarding motions is "serve and file," NOT file and serve. In short, before a written
motion is filed in court, the adverse party must be served therewith. Proof of such service is
required.

Sections 4 and 5, Rule 15 require that every written motion be set for hearing by the movant,
except those motions which the court may act upon without prejudicing the rights of the adverse
party.The notice of hearing must be addressed and served to all parties at least three days before
the hearing.

A motion which does not meet the requirements of Sections 4 and 5, Rule 15 of the 1997 Rules of
Civil Procedure is considered pro forma; it is nothing but a worthless piece of paper which the
clerk has no right to receive and the court has no authority to act upon. "Service of [a] copy of a
motion containing notice of the time and place of hearing of said motion is a mandatory
requirement and the failure of the movant to comply with [the] said requirements renders his
motion fatally defective. (G.R. No. 192866)

[2] Allege and prove

In Latin, "allegata et probata." Parties must allege and prove. In other words, what has been
alleged must be proved.

In G.R. No. 204926, the Supreme Court used this phrase. "For a forcible entry suit to prosper,
the plaintiffs must allege and prove: (a) that they have prior physical possession of the
property; (b) that they were deprived of possession either by force, intimidation, threat, strategy
or stealth; and, (c) that the action was filed within one (1) year from the time the owners or legal
possessors learned of their deprivation of the physical possession of the property."

[3] Null and void

"Null and void" is a popular term in law school. Under the Civil Code of the Philippines, when
the courts declared a law to be inconsistent with the Constitution, the former shall be void and
the latter shall govern. "Null and void" means "cancelled" or "invalid." To be honest, this phrase
is redundant because "null" or "void" means "ineffective" so one of them is enough.

[4] Lost and found

The "lost and found rule" or the "finders keepers rule" is found in Article 719 of the New Civil
Code of the Philippines. This rule is very different from our colloquial sense of "finders keepers"
since the finder has to first do something and wait for a period of time because he can claim to
be his what he has found.

Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the
latter is unknown, the finder shall immediately deposit it with the mayor of the city or
municipality where the finding has taken place.

The finding shall be publicly announced by the mayor for two consecutive weeks in the way he
deems best.

If the movable cannot be kept without deterioration, or without expenses which considerably
diminish its value, it shall be sold at public auction eight days after the publication.

Six months from the publication having elapsed without the owner having appeared, the thing
found, or its value, shall be awarded to the finder. The finder and the owner shall be obliged, as
the case may be, to reimburse the expenses.

[5] Clear and convincing

"Clear and convincing evidence" is a quantum of proof. The highest one is "proof beyond
reasonable doubt." Other quanta of proof are substantial evidence and preponderance of
evidence.

According to our Supreme Court, clear and convincing proof is more than mere
preponderance, but not to extent of such certainty as is required beyond reasonable doubt as
in criminal cases." On the other hand, substantial evidence consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance. Consequently, in the hierarchy of
evidentiary values, proof beyond reasonable doubt at the highest level, followed by clear and
convincing evidence, preponderance of evidence, and substantial evidence, in that order. (G.R.
No. 102358)
[6] Search and seizure

Search and seizure are government tools that may be used by the government to suppress
crimes. Unlike other powers of the government, search and seizure are very specifically and
strictly regulated by the 1987 Constitution. It provides: "The right of the people to be secure in
their persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized."
(Article III)

In a 1993 case related to search and seizure, the Philippine Supreme Court had occasion to say
the following. "There are indeed instances where search and seizure can be effected without
necessarily being preceded by an arrest. An illustration would be the "stop-and-search" without
a warrant at military or police checkpoints, the constitutionality of which has already been
upheld by this Court. Vehicles are generally allowed to pass through these checkpoints after a
routine inspection and answering a few questions. If vehicles are stopped and extensively
searched it is because of some probable cause which justifies a reasonable belief of those
manning the checkpoints that either the motorist is a law-offender or the contents of the vehicle
are or have been instruments in the commission of an offense. However, lest it be
misunderstood, this doctrine is not intended to do away with the general rule that no person
shall be subjected to search of his person, personal effects and belongings, or his residence
except by virtue of a search warrant or on the occasion of a lawful arrest. The case before Us is
an incident to or an offshoot of a lawful "stop-and-search" at a military or police checkpoint."
(G.R. No. 76005)

[7] Fact and law

Litigation is an armed battle and lawyers have two types of ammunition: fact and law. Questions
of fact are those that required the presentation of evidence and questions of law are those that
require arguments founded on legal provisions or pieces of jurisprudence applied on a certain
set of facts. Thus, when a person is said to have no relief in fact or in law, this means his
situation (the facts of the law) and the prevailing state of the legal system (the Constitution,
statutes and case law) do not support his claim.

In Republic of the Philippines v. Malabanan, the Supreme Court distinguished a question of law
from a question of fact. A question of law arises when there is doubt as to what the law is on a
certain state of facts, while there is a question of fact when the doubt arises as to the truth or
falsity of the alleged facts. For a question to be one of law, the same must not involve an
examination of the probative value of the evidence presented by the litigants or any of them. The
resolution of the issue must rest solely on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a review of the evidence presented, the
question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not
the appellation given to such question by the party raising the same; rather, it is whether the
appellate court can determine the issue raised without reviewing or evaluating the evidence, in
which case, it is a question of law; otherwise it is a question of fact.

[8] Valid and binding

This phrase is typically used when it comes to contracts or laws. A similar phrase used in
substitution is "valid and enforceable." Hence, we can say that a law or a contract is valid,
binding and enforceable when, obviously, it does not contravene the Constitution (in case of
laws) or does not go against law, morals, good customs, public order and public policy (in case of
contracts).

Note also that "valid and binding" can likewise be used in reference to court judgments.

In one case, the Supreme Court applied this phrase to pretrial stipulations. "May pretrial
stipulations duly signed by the accused and their counsel be unilaterally withdrawn before the
commencement of the trial? To this main issue, the answer is "No." Stipulations freely and
voluntarily made are valid and binding and will not be set aside unless for good cause. The Rules
of Court mandate parties in a criminal case to stipulate facts. Once they have validly and
voluntarily signed the stipulations, the accused and their counsel may not set these aside on the
mere pretext that they may be placed at a disadvantage during the trial." (G.R. Nos. 143689-91)

[9] Actual and potential

In jurisprudence, "actual and potential" is a phrased typically preceding "wrongdoers" and

"beneficiaries." There is also one case where the Supreme Court used the term "actual and
potential losses of income."

Case #1: "Set up by the [petitioner] as special and affirmative defenses, are that the filing of the
case is premature; that the [respondent] has no cause of action; that the obligation has been
waived/extinguished; that the [respondent’s] failure to accept deliveries compelled the
[petitioner] to store the materials in his warehouse/s and to use valuable space in his premises,
which he could have utilized for the storage of materials for other customers, and also prevented
him from accepting new orders from other customer causing him actual and potential losses
of income; that the [respondent’s] extrajudicial rescission of contract is void since there is no
breach or violation thereof by the [petitioner]; and that it was [respondent] which violated the
terms/conditions of the contract, entitling [petitioner] to have the same judicially rescinded."
(G.R. No. 133803)

Case #2: Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the
primary function of punishment is the protective (sic) of society against actual and
potential wrongdoers." It is not clear whether petitioner could be considered as having actually
committed the wrong sought to be punished in the offense charged, but on the other hand, it can
be safely said that the actuations of Mrs. Carolina Teng amount to that of potential wrongdoers
whose operations should also be clipped at some point in time in order that the unwary public
will not be failing prey to such a vicious transaction (G.R. No. 96132, citing Aquino, The Revised
Penal Code, 1987 Edition, Vol. I, P. 11)

Case #3: At the outset, it should be pointed out that the identification of actual and
potential beneficiaries under CARP is vested in the Secretary of Agrarian Reform pursuant to
Section 15, R.A. No. 6657, which states: SECTION 15. Registration of Beneficiaries. — The DAR
in coordination with the Barangay Agrarian Reform Committee (BARC) as organized in this Act,
shall register all agricultural lessees, tenants and farmworkers who are qualified to be
beneficiaries of the CARP. These potential beneficiaries with the assistance of the BARC and the
DAR shall provide the following data: (a) names and members of their immediate farm
household; (b) owners or administrators of the lands they work on and the length of tenurial
relationship; (c) location and area of the land they work; (d) crops planted; and (e) their share in
the harvest or amount of rental paid or wages received. (G.R. No. 158228)

[10] Form and substance

For those who have already taken up civil procedure (under remedial law), "form and substance"
is a familiar phrase referring to motions or petitions. "The motion or petition must be sufficient
in form and substance."

Under Rule 65 of the Rules of Court, it is said: "If the petition is sufficient in form and
substance to justify such process, the court in which it is filed, or a judge thereof, shall issue an
order requiring the defendant or defendants to answer the petition within ten (10) days from the
receipt of a copy thereof. Such order shall be served on the defendants in such manner as the
court may direct, together with a copy of the petition, and to that effect the petitioner shag file
sufficient copies thereof." (Section 6)

In one case, the Supreme Court applied the phrase to court decisions: "A decision that does not
conform to the form and substance required by the Constitution and the law is void and
deemed legally inexistent. To be valid, decisions should comply with the form, the procedure
and the substantive requirements laid out in the Constitution, the Rules of Court and relevant
circulars/orders of the Supreme Court. For the guidance of the bench and the bar, the Court
hereby discusses these forms, procedures and requirements." (G.R. No. 159357)

[11] Hear and decide

Jurisdiction is the power of tribunals to hear and decide a case. This phrase is often used in
pieces of jurisprudence dealing with the jurisdiction of courts and motions to dismiss based on
lack of jurisdiction.

"CSC’s jurisdiction to hear and decide disciplinary cases against erring government officials is
not without limitation. As discussed above, the Administrative Code vests the CSC appellate
jurisdiction over "all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than thirty days, or fine in an amount exceeding thirty days’ salary,
demotion in rank or salary or transfer, removal or dismissal from office." Original jurisdiction is
vested upon the department secretaries and heads of agencies and instrumentalities, provinces,
cities and municipalities to investigate and decide matters involving disciplinary action against
officers and employees under their jurisdiction." (G.R. No. 176162)

[12] Rule and law

Note that the word "law" in its broadest sense simply refers to rules of conduct promulgated by
an authority. Hence, the Rules of Court can be considered law in this sense, not to mention
statutes, administrative rules and regulations, jurisprudence (case law), etc.

"Rule and law" is a set phrase referring to "law" in the broad sense. In one case decided by the
Supreme Court, it was said: "Said Rule and law refer to appeals to the Supreme Court from the
decisions of the Regional Trial Court. Clearly, they do not involved the review of orders of the
Regional Trial Court rendered after the decision of the trial court has become final and
executory. Such a review must be taken under Rule 65, which can be given due course only when
there is a showing of lack or excess of jurisdiction or grave abuse of discretion on the part of the
trial court (Revised Rules of Court, Rule 67, Section 1; Planter's Products v. Court of Appeals,
193 SCRA 563 [1991]). We find no abuse of discretion, much less lack of or excess of jurisdiction,
on the part of respondent judge." (G.R. No. 115044)

[13] Brief and concise

This phrase is too easily to need any explanation. However, it must be kept in mind that it is
often used in the field of pleadings and legal forms.
The ideal pleading is "brief" and "concise," said the Supreme Court in one 1915 case. (G.R. No. L-
10031)

Although in some of the cases referred to the decision is rested upon the requirements of the
particular statute which either states all that is required to be pleaded in an action of ejectment
or peremptorily specifies the style of the pleadings, there is sufficient basis for the rule from the
standpoint of pleading. (Nelson vs. Brodhack, 44 Mo., 596.) The code theory of pleading and,
indeed, the common law theory, requires only the ultimate material facts to be stated in the
pleading. Allegations of mere evidentiary or immaterial facts may be expunged from the
pleadings or may be stricken out on motion (Code Civ. Proc., sec. 107) and, in some cases, such
matters make the pleading demurrable. (Code Civ. Proc., secs. 91, No. 6. and 100, No. 2.) The
whole purpose of alleging facts in the pleadings is to form issues. It is necessary to allege the
ultimate facts relied upon as a cause of action or defense, and, when this is done, all evidentiary
or probative facts tending to prove these ultimate facts are admissible at the trial, if they
conform to the ordinary rules of evidence. The ideal pleading is "brief" and "concise,"
(Code Civ. Proc., sec. 90, No. 2). Such were the answers of the defendant herein. As they
conform to the true theory of our system of pleading, they should be encouraged and not
discouraged. It must be furthermore remembered that under section 784, No. 28, of the Code of
Civil Procedure, plaintiff is allowed to make up his complaint in an action to recover possession
of land without disclosing the title which he intends to rely upon. And it has been remarked in
some cases that to require the defendant to plead specially the title he intends to rely upon as a
defense is obviously unfair under such circumstances. It would place him in the predicament
anticipating the nature of plaintiff's evidence and at the same time enable the plaintiff to meet
the defense beforehand. (Staley vs. Housel, 35 Neb., 160; Mather vs. Hutchinson, 25 Wis., 27.)

[14] Bar and bench

The words "bar" and "bench" are actually collective nouns. They are akin to "an army of frogs,"
"a congress of baboons," "a flock of birds," etc. We say "a bar of lawyers" and a "bench of
judges/justices."

In Supreme Court decisions, "bar and bench," of course, refers to lawyers and judges who are
soldiers of the judiciary in the battle of justice administration. "The duty to maintain respect for
the dignity of the court applies to members of the bar and bench alike. A judge should be
courteous both in his conduct and in his language especially to those appearing before him. He
can hold counsels to a proper appreciation of their duties to the court, their clients, and the
public without being petty, arbitrary, overbearing, or tyrannical. He should refrain from conduct
that demeans his office and remember always that courtesy begets courtesy. Above all, he must
conduct himself in such a manner that he gives no reason for reproach. (San Juan v. Bagalacsa,
283 SCRA 416 (1997)) As stated in Canon 2 of the Code of Judicial Conduct, a judge should
avoid impropriety and the appearance of impropriety in all his activities." (A.M. No. MTJ-00-
1266)

[15] Sue and be sued

"Sue and be used" is often read or heard of when it comes to topics related to capacity or
personality to sue. In political law, this phrase inundates textbook pages on immunity from suit
(one of the most difficult topics in law school). The lack of personality to sue or be sued can also
be invoked as a defense in court or a ground for a motion to dismiss under Rule 16.

The State cannot be sued without its consent.

Corporations can sue and be sued, they having separate and distinct personality from those
composing them.

Since most decisions of the High Court regarding "sue and be used" are about corporations, here
is an example. "The power of a corporation to sue and be sued is lodged in the board of
directors, which exercises its corporate powers. It necessarily follows that an individual
corporate officer cannot solely exercise any corporate power pertaining to the corporation
without authority from the board of directors. Thus, physical acts of the corporation, like the
signing of documents, can be performed only by natural persons duly authorized for the purpose
by corporate by-laws or by a specific act of the board of directors."

(source: project Jurisprudence Oct. 22, 2020)