B, Jurado (Ike); 6) Atty. Rosario J. Benedicto (Pinky); 7) Rosanna J. Silla (Roxanne); 8) Atty. Robert B. Jurado (Robert); 9) Rose Rowena J. Cielo (Rowena); 10) Richard B, Jurado (Ricky); 11) Atty. Rudolf Philip B. Jurado (Philip); and 12) the youngest being Rose Elena J. Cobarrubias (Ellen). Needless to say, all 12 children are extremely proud of the Author and are blessed by his legacy. C. saved the best for last...our mother, fondly called NENA by the Author. She is now 93 years old! And by God's grace, He has, in all His wisdom, allowed her to stay with us years after our Heavenly Father has called our father to join Him. May she further be endowed with good health, long life and happiness, in Mama Mary’s loving embrace. Let me thank my husband, Engr. Gil Benedicto, our children: Mai, Kat, Bea, and Gil Patrick for all the love, joy, understanding and support through all the years. My life has been a journey mostly with them. It is good to be reminded that when life gets tough and rough, we need to pray. And even when everything is smooth sailing, we need to pray just the same! On behalf of the authors, I also wish to thank REX BOOK STORE, INC. and its chairman, Atty. Dominador Buhain. Thank you, too, Lee Anne Babierra-Torno, Mary Ann Esteban, and all the very supportive staff of the Rex Book Store for patiently coordinat- ing with me. And to dear God, thank You for the life, love, family, friends and classmates (special mention goes to U.P. Law Class ’79). But most of all, thank You for Papa Desi who is now with You watching over us. Thank You for all Your endless blessings and for this treasured legacy... the Civil Law Reviewer. ATTY. ROSARIO JURADO-BENEDICTO Scanned with CamScannerCONTENTS PRELIMINARY TITLE .. Effect and Application of Laws Human Relations BOOK I — PERSONS Title I — CIVIL PERSONALITY . CITIZENSHIP AND DOMICILE Title I — MARRIAGE Chapter 1 Requisites of Marriage. Chapter 2 Marriages Exempt from the License Requirement . Chapter 3 Void and Voidable Marriages Title I — LEGAL SEPARATION.. Title II — RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE . ‘Title IV — PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE . Chapter 1 General Provisions. Chapter 2 Donations by Reason of Marriage - Chapter 3 System of Absolute Community Section 1 General Provisions . Section 2 What Constitutes Community Property Section 3 Charges upon and Obligations of the Absolute Communit Section 4 Ownership, Administration, Enjoyment and Disposition of Community Property Section 5 Dissolution of Absolute Community Regime Scanned with CamScannerSection 6 Liquidation of the Absolute Community Assets and Liabilities Chapter 4 Conjugal Partnership of Gains . Section 1 General Provisions ...... Section 2. Exclusive Property of Each Spouse | Section 3. Conjugal Partnership Property. ...... Section 4 Charges upon and Obligations of the Conjugal Partnership Section 5 Administration of the Conjugal Partnership Propert: Section 6 Dissolution of Conjugal Partnership Regime .. Section 7 Liquidation of the Conjugal Partnership Assets and Liabilities... Chapter 5 Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage . Chapter 6 Regime of Separation of Property Chapter 7 Property Regime of Unions Without Marriage Title V— THE FAMILY .. Chapter 1 The Family as an Institution Chapter 2. The Family Home ... Title VI— PATERNITY AND FILIATION.... Chapter 1 Legitimate Children Chapter 2 Proof of Filiation ... Chapter 3 Illegitimate Children Chapter 4 Legitimated Children Title VII— ADOPTION... Title VIII — SUPPORT...... Title IX — PARENTAL AUTHORITY . Chapter 1 General Provisions... Chapter 2 Substitute and Special Parental Authority .. Chapter 3 Effect of Parental Authority upon the Persons of the Children Scanned with CamScanner 178 180 180 184 193 206 212 214 216 219 225 226 234 234 235 242 242 250 258 263 301 308 311Chapter 4 Effect of Parental Authority upon the Property of the Children... 313 Chapter 5 Suspension or Termination of Parental Authority . B15 Title X — EMANCIPATION AND AGE OF MAJORITY ..... 317 Title XI — SUMMARY JUDICIAL PROCEEDINGS. IN THE FAMILY LAW.. 319 Title XII — FINAL PROVISIONS 319 Provisions of the NCC and P.D. No. 603 as Amended, which Have Not Been Repealed by the Family Code . 320 Funerals... 320 Care and Education of Children 322 Use of Surnames. 329 Absence .... 336 Civil Register 339 BOOK Il— PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS Title I— CLASSIFICATION OF PROPERTY 346 Title II — OWNERSHIP .. 366 Right of Accession 371 Quieting of Title . 404 ‘Title II — CO-OWNERSHIP 405 Title IV — SOME SPECIAL PROPERTIES 421 Title V— POSSESSION... 426 Title VI— USUFRUCT ... 448 Title VII— EASEMENTS OR SERVITUDES 457 Title VIII — NUISANCE . - 479 BOOK III — DIFFERENT MODES OF ACQUIRING OWNERSHIP GENERAL PRINCIPLES 485 Title I1— OCCUPATION . 487 Law . . 489 Tradition 490 Scanned with CamScannera SREATION ..- Title IT — INTELLECTUAL CR 499 Title III — DONATION 497 Title IV — SUCCESSION - Bas visions... 5a; Chapter 1. General Provis’ . Chapter 2 Testamentary Successio> ae Section 1. Wills - 54 Wills in General .----: sa Testamentary Capacity and Intent. - 544 Forms of Wills, Witnesses, and Codicils “ 545 Revocation, Republication and Revival of Wills .. 568 Allowance and Disallowance of Wills ... 576 Section 2. Institution of Heirs 584 Section 3. Substitution of Heirs -.. 593 Section 4. Testamentary Dispositions 601 Section 5. Legitime .... 604 Reserva Troncal 620 Distribution of Estate if There Are Donations .. 640 Section 6. Disinheritance 648 Section 7. Legacies and Devises . 655 Chapter 3. Intestate Succession 662 Section 1. General Provisions 662 Representation . 667 Section 2. Order of Intestate Succession... 676 Chapter 4 Provisions Common to Testate and Intestate Successions . 708 Accretion ... 7108 Capacity to Succeed by Will or by Intestacy .... 79 Acceptance and Repudiation 729 Collation ... 732 Partition and Distribution 737 Title V— PRESCRIPTION a General Provisions 143 746 Acquisitive Prescription... Scanned with CamScannerBOOK Iv — OBLIGATIONS AND CONTRACTS, Title I — OBLIG. IONE : General Prot Nature and Effect of Obligations Kinds of Obligations . Pure and Conditional Obligations with a Period ..... Alternative and Facultative Obligations Joint and Solidary Obligations Divisible and Indivisible Obliga Obligations with a Penal Clause Modes of Extinguishing Obligations g17 Payment or Performance 639 Loss of the Thing Due .. ese Remission .... B47 Confusion or Merger .. aS Compensation .. Novation . So Title II — CONTRACTS os7 General Provisions see Essential Requisites of Contracts - go? Consent giz Object 237 Cause ge x Form of Contracts | Reformation of Instruments Defective Contracts ... Rescissible Contracts .. Unenforceable Contracts Void or Inexistent Contracts Title III — NATURAL OBLIGATIONS. Title [V— ESTOPPEL Title V— TRUSTS Title VI— SPECIAL CONTRACTS Sales . ‘Title VII — BARTER OR EXCHANGE Title VIII— LEASE . General Provisions ... Lease of Rural and Urban Lands - WR < SAAR x Scanned with CamScannerWork and Labor Household Service Contract of Labor .. Contract for a Piece of Work .. Common Carriers .... Title IX— PARTNERSHIP . Title X — AGENCY... Title XI — LOAN... Title XII — DEPOSIT . Title XIII — ALEATORY CONTRACTS . Title XIV — COMPROMISES AND ARBITRATIONS Title XV — GUARANTY . Title XVI — PLEDGE, MORTGAGE AND ANTICHRESIS... Pledge... . Real Estate Mortgage Antichresis .. Chattel Mortgage. Title XVII — EXTRA-CONTRACTUAL OBLIGATIONS. . Quasi-Contracts. Quasi-Delicts Title XVIII — DAMAGES ..... Title XIX — CONCURRENCE AND PREFERENCE OF CREDITS.. Transitional Provisions. Repealing Clause... xvi Scanned with CamScanner 1090 1090 1091 1093 1110 1134 1161 1176 1182 1188 1192 1202 1202 1210 1220 1225 1238 1238 1244 1278 1324 1330 1332CIVIL LAW REVIEWER PRELIMINARY TITLE EFFECT AND APPLICATION OF LAWS (Arts. 1-18) 1. Define law. ANS: The term law, in its general sense (derecho), is defined as the science of moral laws based on the rational nature of man, which governs his free activity for the realization of his individual and social ends, and which by its very nature is demandable and reciprocal. (I Sanchez Roman 3) In its specific sense (ley), it is defined as a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit. (Ibid.) 2. Define Civil Law. (1977) ANS: Civil law is defined as the mass of precepts which determines and regulates those relations of assistance. authority and obedience existing among members of a family as well as among members of a society for the protection of private interests. (1 Sanchez Roman 70) 3. Define Civil Code. ANS: A Civil Code may be defined as a collection of laws, which regulates the private relations of the members of civil society, determining their respective rights and obligations, with reference to persons, things, and civil acts. (1 Tolentino, Civil Code, p. 10) 4. _ What is the physical or mechanical composition of the Civil Code of the Philippines? (1977) ANS: The Civil Code of the Philippines consists of 2,270 articles which are divided as follows: (1) Preliminary Title — Arts. 1-36. 1 Scanned with CamScannerArts. 1-18 CIVIL LAW REVIEWER (2) Book 1 — Persons — Arts. 37-51, NCC; Arts. 1-257, Fo; Arts. 305-310, NCC; Arts, 356-396, NCC; and Arts. 407-413, NCC, Book II — Property, Ownership, and its Modifications — @) Arts. 414-711. (4) Book TIT — Modes of Acquiring Ownership — Arts. 712. 1155. (5) Book IV — Obligations and Contracts — Arts. 1156-2251, (©) Transitional Provisions — Arts. 2252-2269. (7) Repealing Clause — Art. 2270. 5. What are the sources of the Civil Code of the Philippines? (1977) ANS: The sources of the Civil Code of the Philippines are: (1) Civil Code of Spain of 1889; (2) Codes and laws of other countries, such as Spain, the various states of the United States — especially California and Louisiana, France, Argentina, Germany, Mexico, Switzerland, England, and Italy; (3) Judicial decisions of the Supreme Courts Philippines, of various states of the United States, of Spain, and of other countries; (4) Philippine laws or statutes, such as the Code of Civil Procedure (Act No. 190), the Rules of Court, the Marriage Law (Act No. 3613), and the Divorce Law (Act No. 2710); Works of jurists and commentators of various nations; of the ) © (Z) The Code Commission itself. Report of the Code Commission, pp. 2-3) 6. When do laws in the Philippines take effect? ANS: Laws shall take effect after 15 days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it Filipino customs and traditions; and 2 Scanned with CamScannerPRELIMINARY TITLE Arts. 1-18 Effect and Application of Laws is otherwise provided. (E.O. No. 200, dated June 18, 1987, which repealed Art. 2, NCC) 7. When did the Spanish Civil Code take effect in the Philippines? ANS: The Spanish Civil Code took effect 20 days (“a los veinte dias”) after publication in the official newspaper in the Philippines. As to actual date of effectivity, there are two views. According to the majority view, since it was published in the Gaceta de Manila on November 17, 1889, therefore, it took effect on December 7, 1889. (Mijares us. Nery, 3 Phil. 196; Cosio us. Pili, 10 Phil. 72; Insular Government vs. Aldecoa, 19 Phil. 505; Barretto vs. Tuazon, 59 Phil. 845) According to the minority view, the date of effectivity is December 8, 1889. (Benedicto us. De la Rama, 3 Phil. 43; Veloso vs. Fontanosa, 13 Phil. 79) It is submitted that the first view is more in accordance with the rules of statutory construction. 8. When did the Civil Code of the Philippines take effect? Discuss. ANS: According to several cases decided by the Supreme Court. the date of effectivity of the Civil Code of the Philippimes is August 30, 1950, which is one year after its publication in the Official Gazette as required by Art. 2 of the said Code. (Lare vs. Del Rosario, 94 Phil. 778; Raymundo us. Perias, 96 Phil. 311; Camporedondo vs. Aznar, 102 Phil. 1055) The above date of effectivity of the NCC, as pinpointed by the Supreme Court has been the subject of criticism by some of our leading commentators. It is, of course. clear that Art. 2 of the NCC expressly provides that the NCC of the Philippines shall take effect “one year after the completion of its publication in the Official Gazette.” Actually, it was published in a Supplement dated June, 1949, which accompanied the June 1949 issue. However, the Editor of the said Official Gazette certified that “the June, 1949 issue of the Official Gazette with the Supplement thereto, was released for circulation on August 30, 1949.” Consequently. if the basis for computing the one-year period were the date of publication, then the date of effectivity would be June 30, 1950. This was the view upheld by the majority of commentators. (See 1 Tolentino, Civil Code, p. 17) 3 Scanned with CamScannerArts. 1-18 CIVIL LAW REVIEWER But if the basis for computing the period is the date of circulation, then the date of effectivity would be August 30, 1950, Evidently, although the decisions are silent (sce cases cited above), the SC has chosen this basis. This, it seems, would be contrary to Sec. 11 of the Revised Administrative Code which declares that the date of publication of the Official Gazette is conclusively presumed to be the date indicated therein as the date of issue. 9. After a storm causing destruction in four Central Luzon provinces, the executive and legislative branches of the government agreed to enact a special law appropriating P1 billion for purposes of rehabilitation for the provinces. In view of the urgent nature of the legislative enactment, it is provided in its effectivity clause that it shall take effect upon approval and after completion of publication in the Official Gazette and a newspaper of general circulation in the Philippines. The law was passed by Congress on July 1, 1990, signed into law by the President on July 3, 1990, and published in such newspaper of general circulation on July 7, 1990 and in the Official Gazette on July 10, 1990. (a) As to the publication of said legislative enactment, is there sufficient observance or compliance with the requirements for a valid publication? Explain your answer. (b) When did the law take effect? Explain your answer. (c) Can the executive branch start releasing and dis- bursing funds appropriated by the said law the day follow- ing its approval? Explain your answer. (1990) ANS: (a) Yes, there is sufficient compliance. The law itself prescribes the requisites of publication for its effectivity, and all requisites have been complied with. (Art. 2, NCC) (b) The law takes effect upon compliance with all the conditions for effectivity, and the last condition was complied with on July 10, 1990. Hence, the law became effective on that date. (© No. It was not yet effective when it was approved by Congress on July 1, 1990 and approved by the President on July 8, 1990. The other requisites for its effectivity were not yet complete at that time. Scanned with CamScannerPRELIMINARY TITLE Arts, 1-18, Effect and Application of Laws 10. Sec. 1 of P.D. No. 755 state: “Sec. 1. Declaration of National Policy — It is hereby declared that the policy of the State is to provide readily available credit facilities to the coconut farmers at preferential rates; that this policy can be expeditiously and efficiently realized by the implementation of the “Agreement for the Acquisition of a Commercial Bank for the Benefit of the Coconut Farmers” executed by the Philippine Coconut Authority, the terms of which “Agreement” are hereby incorporated by reference.” A copy of the “Agreement” was not attached to the P.D. No. 755 was published in the Official Gazette but the text of the “Agreement” described in Section 1 was not published. Can the “Agreement” in question be accorded the status of a law? (2016) ANS: The Agreement in question cannot be accorded the status of a law. The Supreme Court in the case of Cojuangco, Jr. vs. Republic (G.R. No. 180705, November 27, 2012, 686 SCRA 472) ruled that while the Agreement was incorporated by reference, Sec. 1 of P.D. No. 755 did not in any way reproduce or attach as an annex the exact terms of the contract in the decree. It is well-settled that laws must be published to be valid. In fact, publication is an indispensable condition for the effectivity of a law. Art. 2 of the NCC provides that laws shall take effect after 15 days following the completion of their publication in the Official Gazette, unless it is otherwise provided. It is important to remember that Sec. 6 of the Bill of Rights recognizes “the right of the people to information on matters of public concern” and this certainly applies to, among others, the legislative enactments of the government. ‘The SC went further to say in Tanada us. Tuvera (G.R. No. 63915, April 24, 1985, 136 SCRA 27) that the publication must be of the full text of the law since the purpose of publication is to inform the public of the contents of the law. Mere referencing the number of the Presidential Decree, its title or whereabouts and its supposed date of effectivity would not satisfy the publication requirement. The status of a law cannot, therefore, be extended to the said Agreement. The Agreement shall be treated only as an ordinary transaction between agreeing minds to be governed by contract law under the NCC. Scanned with CamScannerArts. 1-18, CIVIL LAW REVIEWER 11. A and B are spurious children of X, born in 1945 and 1947, respectively. X died in 1955. Can A and B inherit from him? Would your answer be the same if X died the year after B's birth? (1977) ANS: If X died in 1955, A and B can inherit from him. This is, of course, based on the assumption that X had recognized them as his spurious children either voluntarily or compulsorily. If X had not recognized them, they cannot inherit from him. If X died the year after B’s birth, then A and B cannot inherit from him. The reason is that in such case, the right or capacity of A and B to inherit from X shall still be governed by the Spanish Civil Code. (Art. 2263, NCC) Under the facts presented, X died prior to the effectivity (Aug. 30, 1950) of the NCC. Therefore, what is applicable is the Spanish Civil Code. Under said Code, spurious children cannot inherit. 12. Explain the rule that ignorance of the law excuses noone from compliance therewith (ignorantia legis neminem excusat). (1985) ANS: This rule or principle is a conclusive presumption of law which is embodied in Art. 3 of the NCC of the Philippines. It is based on expediency as well as public policy and necessity. Were it not for this rule, almost everybody would be able to relieve himself of any criminal or civil liability by claiming that he is ignorant of the law. It must be noted, however, that the rule refers only to mistakes with regard to the existence of a law rather than to mistakes with question of law or with regard to the effect of a certain contract or transaction. The latter may be the basis of possession in good faith (Art. 526, NCC), or may render a contract voidable (Art. 1334, NCO), or may give birth to a quasi-contract of solutio indebiti. (Art. 2155, NCC) 13. Is there any difference in their legal effect between ignorance of the law and ignorance or mistake of facts? (1996) ANS: Yes. The former does not excuse a party from the legal consequences of his conduct, while the latter constitutes an excuse and is a legal defense. Scanned with CamScannerPRELIMINARY TITLE Effect and Application of La: Arts 1-18 14, What are the exceptions to the rule that laws shall have no retroactive effect? (1977) ANS: The following are the exceptions to the rule that laws shall have no retroactive effect: (1) When the law itself expressly provides for its retroactivity. (Art. 4, NCC) (2) When the law is penal insofar as it favors the accused who is not a habitual criminal, even though at the time of the enactment of such law, final sentence has already been rendered. (Art. 22, Revised Penal Code) (3) When the law is procedural so long as it does not affect or change vested rights. (Aguillon us. Dir. of Lands, 17 Phil. 506) (4) When the law creates new substantive rights. (Art. 2263, ‘NCC; Bona vs. Briones, 28 Phil. 276) (5) When the law is curative in character in the sense that the purpose for its enactment is to cure defects or imperfections in icial or administrative proceedings. (6) When the law is interpretative of other laws. 15. Private respondents were buyers on installment of subdivision lots from Marikina Village, Inc. the subdivision developer. Notwithstanding the land purchase agreements it executed over said lots, the subdivision developer mortgaged the lots in favor of the Petitioner PNB. Subsequently, the subdivision developer defaulted and PNB foreclosed on the mortgage. As highest bidder, PNB became owner of the lots. Acting on suits brought by private respondents, HLURB ruled that PNB, without prejudice to seeking relief against Marikina Village, Inc., may collect from private respondents only the remaining amortizations in accordance with the land purchase agreements they had previously entered into with Marikina Village, Inc.. and cannot compel private respondents to pay all over again for the lots they had already bought from said subdivision developer. On March 10, 1992, the Office of the President invoking P.D. No. 957 concurred with the HLURB. May a buyer of a property at a g Scanned with CamScannerArts. 1-18 CIVIL LAW REVIEWER foreclosure sale dispossess prior purchasers on installment of individual lots therein, or compel them to pay again for their lots which they previously bought from the defaulting mortgagor-subdivision developer on the theory that P.D. No. 957, “The Subdivision and Condominium Buyers Protection Decree,” is not applicable to the mortgage contract, the same having been executed prior to the enactment of P.D. No. 957? ANS: Normally, pursuant to Art. 4 of the NCC, “()aws shall have no retroactive effect. unless the contrary is provided.” However, it is obvious and undubitable that P.D. No. 957 was intended to cover even those real estate mortgages, like the one at issue here, executed prior to its enactment, and such intent must be given effect. if the laudable purpose of protecting innocent purchasers is to be achieved. P.D. No. 957 did not expressly entirety, yet the same can be plainly intent of the law to protect innocent lots buyers from scheming subdivision developers. As between these small lot buyers and the gigantic financial institutions which the developers deal with, it is obvious that the law — as an instrument of social justice — must favor the weak. Despite the impairment clause, a contract valid at the time of its execution may be legally modified or even completely invalidated by a subsequent law. If the law is a proper exercise of the police power, it will prevail over the contract. Into each contract are read the provisions of existing laws and. always, a reservation of the police power as long as the agreement deals with a matter affecting the public welfare. Such a contract suffers a congenital infirmity, and this is its susceptibility to change by the legislature as a postulate of the legal order. (PNB vs. Office of the President, 67 SCRA 4, 252 SCRA 9) 16. What are the exceptions to the rule that an act executed against provisions of mandatory or prohibitory laws shall be void? ANS: The following are the exceptions: (1) Where the law itself authorizes its validity. Examples — sweepstakes, horse racing. provide for retroactivity in its inferred from the unmistakable Scanned with CamScannerTis Vroldt PRELIMINARY TITLE Arte 1-48 Effect and Application of Laws (2) Where a marriage was solemnized by 2 person who does not have legal authority, but the party or parties believing im good faith, that such person has the authority to do so, then the marriage is valid but the person who solemnized the same shall be criminally liable. (3) Where the law itself authorizes its validity, 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 itself is valid. (4) Where the law merely makes the act voidable. Example — A marriage celebrated through violence or intimidation or physical incapacity or fraud is valid until it is annulled by a competent court. (5) Where the law declares the act as void, but recognizes legal effects as arising from it. Example — Children born of void marriage are classified as illegitimate children entitled to the rights provided for in Art. 176 of the FC. 17. Rights may be waived. (a) In what cases may waiver be prohibited and declared null and void? (1977) (6) What are some instances where waiver is considered void? ANS: (a) Waiver is prohibited and may be declared null and void when (i) it is contrary to law, public order, public policy, morals or good customs; or (ii) when prejudicial to a third person with a right recognized by law. (Art. 6, NCC) (6) Waiver is considered void in such instances as: (@) waiver of future support; (ii) waiver of political rights: (iii) waiver of future inheritance especially if the waiver is intended to prejudice creditors. 18. In case of silence, obscurity or insufficiency of the law with respect to a particular controversy, what rules shall be applied? (1961, 1971, 1977) ANS: 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. Scanned with CamScannerArts. 1-18 CIVIL LAW REVIEWER 19. What is the doctrine of stare decisis? ANS: The “doctrine of stare decisis” (Art. 8, NCC) expresses that judicial decisions interpreting the law shall form part of the Philippine legal system. The rule follows the legal maxim — “legis interpretado legis vim obtinet,” i.e., the interpretation placed upon the written law by a competent court has the force of law. The interpretation placed by the courts establishes the contemporaneous legislative intent of the law. The latter as so interpreted should constitute a part of the law as of the date the statute is enacted. Only when a prior ruling of the court finds itself later overruled, and a different view is adopted, that the new doctrine may be applied prospectively in favor of parties who have relied on the old doctrine and have acted in good faith in accordance therewith under the rule of “lex prospicit, non respicit.” (Pesca vs. Pesca, G.R. No. 136921, April 17, 2001) 20. What is meant by custom and what should first be established before such custom could be considered as a source of right? Illustrate. ANS: Custom may be defined as the juridical rule which results from a constant and continued uniform practice by the members of a social community, with respect to a particular state of facts, and observed with a conviction that it is juridically obligatory. (1 Tolentino, Civil Code, p. 39) The custom must be proved as a fact, according to the rules of evidence. (Art. 12, NCC) This fact, however, should possess the following requisites: (1) plurality of acts; (2) uniformity of acts; (8) general practice by the great mass of the people of the country or community; (4) continued practice for a long period of time; (5) general conviction that the practice is the proper rule of conduct; and (6) conformity with law, morals or public policy. (1 Tolentino, Civil Code, p. 39; 1 Manresa 82) Illustration — X, a cochero in Manila, left his horse unattended while helping his passengers to unload their cargo. Frightened by passing vehicles, the horse galloped away, as a result of which the carretela struck a pedestrian causing injuries to the latter. Is the cochero negligent? HELD: The cochero is not negligent. His act is in 10 Scanned with CamScanner LIP] ALORA| | PRELIMINARY TITLE Arte, 1-18 Effect and Application of Laws accordance with the custom of cocheros in the place. (Martinez vs. Van Buskirk, 18 Phil. 79) 21. What are the different conflict-law-rules found in the NCC and the FC which sanction the operation of either Philippine laws upon Filipinos residing or sojourning abroad or foreign laws upon foreigners residing or sojourning in the Philippines? ANS: They are: (1) Art. 14, NCC — Although penal laws are obligatory upon all who live or sojourn in Philippine territory, nevertheless, this rule is subject to the principles of public international law and to treaty stipulations. (2) Art. 15, NCC — Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon Filipino citizens, even though living abroad. By implication, this rule is also applicable to aliens. (3) Art. 16, par. 2, NCC — Testate and intestate succession, both with respect to the order of succession, the amount of successional rights and the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration. (4) Art. 17, pars. 1 and 2, NCC — The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country where they are executed. However, when the acts referred to are executed before diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. (6) Art. 21, FC — When either or both of the parties to a marriage contract are aliens, it shall be necessary, before they can secure a marriage license, to provide themselves with a certificate of legal capacity to contract marriage, to be issued by their respective diplomatic or consular officials. (©) Art. 26, FC — All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Arts. 35(1), (4), (5) and (6), 36, 37, and 38, FC. ey Scanned with CamScannerArts, 1-18 CIVIL LAW REVIEWER (7) Art. 80, FC — In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws regardless of the place of the celebration of the marriage and their residence. (8) Art. 815, NCC — When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (9) Art. 816, NCC — The will of an alien produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or of his country, or of the NCC of the Philippines. (20) Art. 817, NCC —Ifan alien makes a will in the Philippines in accordance with the formalities prescribed by the laws of his country, it shall have the same effect as if executed according to the laws of the Philippines. Q) Art. 819, NCC — Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines. (12) Art. 829 — Revocation of a will done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made or according to the law of the place where the testator had his domicile at the time. (13) Art. 1039, NCC — Capacity to succeed is governed by the decedent’s national law. (14) Art. 1753, NCC — The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction, or deterioration. 22. Why are foreign decrees of divorce granted to Philippine nationals generally refused recognition by our courts? ANS: Foreign decrees of divorce (absolute) granted to Philippine nationals are generally refused recognition by our courts because of two very fundamental reasons. They are: (1) In this jurisdiction, we adhere to the nationality theory. Thus, Art. 15 of the NCC expressly provides that laws relating to 12 Scanned with CamScannerPRELIMINARY TITLE Arts. 1-18 Effect and Application of Laws family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad. A decree of divorce is certainly one that will affect or involve the status and condition of the parties. (2) It is well-settled in this country that absolute divorce is contrary to public policy. The third paragraph of Art. 17 of the NCC declares that such a declaration of public policy cannot be rendered ineffective by a judgment promulgated in a foreign country. 23. Ana and Basilio, both Filipino citizens and of legal age, were married in Antique but they never lived together. Ana subsequently left the Philippines and secured a divorce in Nevada, USA in 1953 on the ground of extreme mental cruelty. In 1955, Ana sought papal dispensation of the marriage and then married Carl, an American, in Nevada. She lived with him in California and begot children. She acquired American citizenship in 1959. (1) Will the divorce decree obtained abroad be accorded validity in the Philippines? What law supports your answer? (2) What is the status of the marriage of Ana and Carl under our laws? Reasons for your answer. (1978) ANS: (1) The divorce decree obtained abroad is not accorded validity in the Philippines. The following laws support this answer: (a) The NCC states that laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Please note that Ana acquired American citizenship only in 1959, while divorce was obtained in 1953. (Art, 15, NCC) Only relative divorce or legal separation, as a general rule, is recognized in the Philippines. (Art. 55, et seq., FC) Absolute divorce is recognized only among Muslims as provided for in the Islamic law on family relations. (P.D. No. 1083) It is, therefore, clear that the divorce decree which affects the status and condition of Ana and Basilio, is not valid under Philippine laws. (b) It is well-settled in this jurisdiction that absolute divorce is contrary to public policy. The NCC states that a 1s Scanned with CamScannerArts. 1-18 CIVIL LAW REVIEWER declaration of public policy cannot be rendered ineffective by a judgment promulgated in a foreign country. (Art. 17, paragraph 3, NCC) (2) The marriage of Ana and Carl is void under our laws for the following reasons: (a) Ana is still married to Basilio under Philippine laws. The decree of absolute divorce which she obtained in Nevada is not valid in the Philippines for the reasons stated above. Neither is the papal dispensation which she also obtained valid. Our law on marriage is found in the NCC. Papal dispensation is not recognized in said law. (») True, the NCC provides that a marriage celebrated outside of the Philippines in accordance with the laws in force in the country where it is celebrated, and valid there as such, shall also be valid in this country. (Art. 26, FC) But there are exceptions to this rule. The rule cannot be applied if the marriage is bigamous, polygamous, or incestuous as determined by Philippine laws. The marriage of Ana and Carl] is certainly bigamous as determined by Philippine laws. (Art. 41, FC) (NOTE: Under Art. 26 of the FC, the exceptions to the rule are those prohibited under Arts. 35[1], [4], [5] and [6], 36, 37 and 38, FC. Hence, the general rule provided for in Art. 26 of the FC cannot herein be applied since the marriage of Ana and Carl is bigamous [Art. 35{4}, FCJ and as such, is considered an exception thereto.) 24. Xand Y, Filipino couple married in the Philippines, transferred their residence to Reno, Nevada, and resided bona fide there for 10 years. While there, they obtained an absolute divorce, which is valid by the laws of Reno, Nevada. Subsequently, they returned to the Philippines. May the absolute divorce be recognized in the Philippines? Reason. «971) ANS: The absolute divorce cannot be considered as valid in the Philippines for the following reasons: (1) Absolute divorce is not recognized in the Philippines. According to Art. 15 of the NCC, laws relating to family rights and duties, or to the status, condition, and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. 14 oT Scanned with CamScannerPRELIMINARY TITLE, Arts, 118 Effect and Application of Laws (2) Well-settled is the rule in this jurisdiction that absolute divorce is contrary to public policy. Pursuant to the third paragraph of Art. 17 of the NCC, this declaration of public policy cannot be rendered nugatory by the decree of absolute divorce obtained by X and Y in Reno, Nevada. 25. Xand Y,a Filipino couple, emigrated to the United States and established their residence in New York City. Y committed adultery with Z, another Filipino, and X was able to obtain a divorce from Y. X returned to the Philippines and married A. Is the marriage valid? Reasons. (1973) ANS: The marriage between X and A is not valid for lack of legal capacity on the part of X. From the viewpoint of Philippine laws, X is still married to Y. Consequently, there is an impediment to his marriage to X pursuant to Arts. 2 and 35, par. 1, of the FC. Essentially, the real issue in the instant problem is: whether or not the decree of absolute divorce obtained abroad is valid in this country. It is well-settled that such a decree is void from the beginning. The reasons are well known. In the first place, we adhere to the nationality theory. Philippine laws shall be binding upon Filipino citizens wherever they are with respect to family rights and duties as well as status, condition and legal capacit This is clear from Art. 15 of the NCC. And in the second place. in this country, there is a declaration of public policy against absolute divorce. Such a declaration of public policy cannot be rendered nugatory by the decree of absolute divorce obtained by X abroad. This is clear from the third paragraph of Art. 17 of the NCC. 26. H and W, both Filipino citizens are married. While they were abroad, W, divorced H who subsequently died. Is W still entitled to inherit from H? ANS: Yes. A Filipino husband or wife remains the lawful spouse of the other Filipino husband or wife in spite of a decree of divorce! obtained by the wife. Hence, W is still entitled to inherit from the husband as the latter's surviving spouse despite the fact that she was the one who divorced him. However, if the wife was already'& foreigner at the time of the divorce, she ceased to be the lawful wife of the Filipino husband and loses her right to inherit from him as” his surviving spouse: (Quita us. Dandan, G.R. No. 124862, December 22, 1998) 15 Scanned with CamScannerArts. 1-18 CIVIL LAW REVIEWER 27. Spouses, husband “H” and wife “W,” Filipinos, with a child, decided that “H,” a doctor, would go the U.S. to find employment there and then “W” would join him. When in the U.S., “H” wrote that to establish U.S. residence, he would have to obtain a divorce, marry an American girl, and once a US. resident, divorce his American wife and then remarry “Ww.” “W” agreed. Four years later, “H,” now a U.S. resident and having divorced his American wife, returns to the Philippines and finds that his wife, “W,” has married a wealthy man in a ceremony celebrated in Hong Kong and is happily living with him in Manila. A. Was the marriage and divorce obtained by “H” in the U.S. valid? Explain. B. Was the marriage of “W” in Hong Kong valid? Explain. C. Could “H” obtain custody of the child? Explain. D. Could “H” charge “W” with bigamy or adultery? Explain. (1981) ANS: A. Both divorce and marriage are not valid in the Philippines. The divorce is not valid for the following reasons: (@) We adhere to the nationality theory. The NCC declares that laws relating to family rights and duties, or the status, condition and legal capacity of persons are binding upon citizens of the Philippines even though living abroad. Divorce certainly affects the status and condition of persons. Since absolute divorce is not recognized in this country except among Muslims, therefore, the decree of absolute divorce obtained by “H’ is not valid. (2) It is well-settled that absolute divorce is contrary to public policy. According to the NCC, this declaration of public policy cannot be rendered ineffective by a judgment promulgated in a foreign country. The marriage of “H” to an American woman is not also valid. ‘True, we adhere to the principle of locus regit actum — marriage 16 Scanned with CamScannerPRELIMINARY TITLE Arte. 1-18 Effect and Application of Laws valid where celebrated is also valid in the Philippines. But excepted from this rule are bigamous, polygamous and incestuous marriages as determined by Philippine law. Since the divorce obtained by “H” from “W" is not valid in this country as stated above, the subsequent marriage to an American woman is clearly bigamous as determined by Philippine law. Therefore, the marriage is not valid. (NOTE: The above answers are based on Art. 26 of the FC and on decided cases.) B. Using the same line of reasoning, “W's” marriage to another man in Hong Kong is not also valid. Since the decree of absolute divorce obtained by her husband “H” in the U.S. is not valid under Philippine law for the reasons stated above, her marriage in Hong Kong to another man is clearly bigamous as determined by Philippine law. Therefore, it is not valid. (NOTE: The above answer is based on Art. 26 of the FC.) C. If the child is under seven years old, “H” cannot obtain custody over him. According to the law, no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to do so. However, if the child is already seven years old or over, then it is the best interest of the child that will be considered, taking into account the respective resources and the social and moral situations of the contending parents. (NOTE: The above answer is based on Art. 213, paragraph 2, FC and on decided cases, notably Unson vs. Navarro, L-52242, November 17, 1980.) D. “H” can charge “W” with adultery but not with bigamy. Undoubtedly, all of the elements of adultery as defined and punished in the Revised Penal Code are present. It is different in the case of bigamy. Since the bigamy was committed outside of our territorial” jurisdiction, it is not triable by our courts. (NOTE: The above answer is based on the Revised Penal Code, specifically Art. 2 of said Code.) 28. A, an American, and P, a Filipina were married in New York City where they were both domiciled. Because of 17 Scanned with CamScanner