I.

Preliminary Title

A. Effect and Application of Laws

* Applicable Laws:

 Republic Act No. 386

 Executive Order No. 200

EXECUTIVE ORDER NO. 200 June 18, 1987

PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL

GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE
PHILIPPINES AS A REQUIREMENT FOR THEIR EFFECTIVITY

WHEREAS, Article 2 of the Civil Code partly provides that "laws shall take effect
after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided . . .;"

WHEREAS, the requirement that for laws to be effective only a publication

thereof in the Official Gazette will suffice has entailed some problems, a point
recognized by the Supreme Court in Tañada. et al. vs. Tuvera, et al. (G.R. No.
63915, December 29, 1986) when it observed that "[t]here is much to be said of
the view that the publication need not be made in the Official Gazette,
considering its erratic release and limited readership";

WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers of general

circulation could better perform the function of communicating the laws to the
people as such periodicals are more easily available, have a wider readership,
and come out regularly"; and

WHEREAS, in view of the foregoing premises Article 2 of the Civil Code should
accordingly be amended so the laws to be effective must be published either in
the Official Gazette or in a newspaper of general circulation in the country;

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by

virtue of the powers vested in me by the Constitution, do hereby order:

Sec. 1. Laws shall take effect after fifteen days following the completion of their
publication either in the Official Gazette or in a newspaper of general circulation
in the Philippines, unless it is otherwise provided.
 Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil Code of
the Philippines," and all other laws inconsistent with this Executive Order are
hereby repealed or modified accordingly.

Sec. 3. This Executive Order shall take effect immediately after its publication in
the Official Gazette. Done in the City of Manila, this 18th day of June, in the year
of Our Lord, nineteen hundred and eighty-seven.

Important Principles

Articles 2 and 3: Effectivity of the Civil Code (August 30, 1950)

(Family Code became effective on August 3, 1988)

ARTICLE 2 – 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 is otherwise provided. This Code shall take effect 1 year after such
publication.

 No publication = violation of due process = height of injustice

 When a statute does not provide for its effectivity, it shall have effect only after it
meets the requisites provided in Art. 2 of the Civil Code: fifteen-day period and
the publication either in the Official Gazette or in a newspaper of general
circulation in the Philippines.
 These are necessary requirements to enable the people to become familiar with
the statute.
 No one shall be charged for a statute’s provision if it has not been published and
if it has not gone through the 15 day period
 Not full publication = not publication at all because the purpose is to inform the
public of its contents (Tañada v. Tuvera)

 After the accomplishment of for the required publication, the people are deemed
to have conclusively been notified of the law even if some have not read it yet
 “Unless it is otherwise provided” - refers to the fifteen- day period and not to the
requirement of publication.
 Publication is an indispensable requisite the absence of which will not render the
law effective. (indispensable – absolutely necessary)
 If the law provides for a different period shorter or longer than the 15-day period
– will prevail
 Can a law take effect immediately after publication? – No, unless the law
provides or says so
 Section 1 of Executive Order No. 200 uses the word “laws.” Hence, the effectivity
provision refers to all statutes, including those local and private laws (Tañada v.
Tuvera, 146 SCRA 446), unless there are special laws providing a different
effectivity mechanism for particular statutes.
 Rule to be posted on the Senate website – no binding effect; must be in
newspaper of general circulation or the official gazette
 Publication on the internet or through website of official gazette – not sufficient;
what if some people don’t have internet or for those people who are not capable
of obtaining internet in secluded places
 SC cannot change the law - power includes the duty to settle actual
controversies involving rights that are legally demandable and enforceable and to
determine if any branch or instrumentality of government has acted with grave
abuse of discretion amounting to lack of excess of jurisdiction; he SC has
appellate jurisdiction to review, revise, reverse, modify, or affirm final judgments,
and orders of the lower courts

COVERED BY THIS RULE (MUST NOT COVERED BY THIS RULE

BE PUBLISHED)
 Presidential Decrees and  Interpretative regulations – or
Executive Orders promulgated those internal in nature
by the President - in the regulating only the personnel of
exercise of legislative powers the administrative agency and
whenever the same are validly not the public, need not be
delegated by the legislature, published.
or, at present, directly  Letters of instructions issued by
conferred by the Constitution. the administrative
Even say, those naming a superiors/Rules or Guidelines -
public place after a favored to be followed by their
individual or exempting him subordinates in the
from certain prohibitions or performance of their duties.
requirements.  Municipal ordinances - covered
 Administrative rules and by the Local Government Code
regulations - If their purpose is  Instructions – for a specific
to enforce or implement department
existing law pursuant also to a
valid delegation.
 Charter of a city - applies to
only a portion of the national
territory and directly affects
only the inhabitants of that
 place. (Charter - a legal
document establishing a
municipality such as a city or
town; the granting of a charter
gave a settlement and its
inhabitants the right to town
privileges)
 Circulars issued by the
monetary board - if they are
meant not merely to interpret
but to “fill in the details” of the
Central Bank Act which that
body is supposed to enforce.

ARTICLE 3 – Ignorance of the law excuses no one from compliance therewith.

 This legal precept that founded not only on expediency and policy but on
necessity.
 Every person is presumed to know the law but there is no conclusive
presumption of foreign laws.
 Ignorance of foreign laws – mistake of fact (acted in good faith or well-founded
belief)
 How do you consider a person to possess in good faith? – unaware of flaw/defect
in the title
 Foreigners are bound by our laws. If they transact in the Philippines they are
presumed to know it.
 When a law is passed by Congress, duly approved by the President of the
Philippines, properly published, and becomes effective pursuant to its effectivity
clause or to some provision of a general law on the effectivity of statutes, the
public is always put on constructive notice of the law’s existence and effectivity.
This is true even if a person has no actual knowledge of such law.
 This is to allow a party to set up as a valid defense the fact that he has no actual
knowledge of a law which he has violated is to foment disorder in society.
 Article 3 applies only to mandatory and prohibitory laws (Art. 5 and Art. 17, par.
3)
  Article 3 is a necessary consequence of the mandatory provision that all laws
must be published.
 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 of

Tanada v Tuvera GR No. L-63915, December 29, 1986

Article 2, Civil Code of the Philippines: “Laws shall take effect after fifteen days
following the completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines, unless it is otherwise provided. (As
amended by E.O. No. 200)

FACTS
Due process was invoked by the petitioners in demanding the disclosure of a
number of presidential decrees which they claimed had not been published as
required by law.
The government argued that while publication was necessary as a rule, it was
not so when it was “otherwise provided”, as when the decrees themselves
declared they were to become effective upon their approval.
In the decision of this case on April 24, 1985, the Court affirmed the necessity for
the publication of some of these decrees, declaring in the dispositive portion as
follows: “WHEREFORE, the Court hereby orders respondents to publish to the
Official Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and
effect.”

ISSUE
The petitioners suggest that there should be no distinction between laws of general
applicability and those which are not; that publication means complete publication; and
that the publication must be made forthwith in the Official Gazette.

Should publishing all laws in the Official Gazette regardless of general

applicability be required?
YES, the line in Article 2 of the Civil Code “unless it is otherwise provided”
pertains to the date of effectivity and not to the requirement of publication itself.
Thus, publication is indispensable in every case, but the legislature may in its
discretion provide that the usual fifteen-day period shall be shortened or
extended.
 It is not correct to say that under the disputed clause publication may be
dispensed with altogether because such omission would offend due process
insofar as it would deny the public knowledge of the laws that are supposed to
govern it.

The days of secret laws and the unpublished decrees are over. This is once
again an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if your
country is to remain democratic, through their freedom of expression and their
right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in
the shadows with their dark, deep secrets. Mysterious pronouncements and
rumored rules cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make full disclosure and
give proper notice to the people.

Ruling
WHEREFORE, it is hereby declared that all laws as above defined shall
immediately, upon their approval, or as soon thereafter as possible, be published
in full in the Official Gazette, to become effective only after fifteen days from their
publication, or. On another date specified by the legislature, in accordance with
Article 2 of the Civil Code.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
QUE PO LAY, defendant-appellant.

Facts:
Que Po Lay is appealing from the decision of the Court for charging him and finding him
guilty for violating a Central Bank Circular (No. 20) when he failed to sell foreign
exchange amounting to $7000. Because of this, he was sentenced to spend six months
imprisonment and pay a Php1000 fine. Circular No. 20 was issued in the year 1949, but
it was not published until November 1951, and it was published three months after Que
Po Lay’s conviction

He was in possession of foreign exchange consisting of U.S. dollars, U.S. checks and
U.S. money orders amounting to about $7,000. He failed to sell this to the Central Bank
within one day following the receipt of such foreign exchange as required by Circular
No. 20.

His appeal is based on the claim that circular No. 20 was not published in the Official
Gazette prior to the act or omission imputed to him and because of this the said circular
had no force or effect.

Solicitor General: circulars, regulations and notices do not need to be published in order
for it become binding and effective.

Sec. 11 of the Revised Administrative Code: statutes passed by Congress shall, in the
absence of special provision, take effect at the beginning of the fifteenth day after the
completion of the publication of the statute in the Official Gazette.

Article 2 of the CC: laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided.

It is true that Circular No. 20 of the Central Bank is not a statute or law but being issued
for the implementation of the law authorizing its issuance, it has the force and effect of
law according to settled jurisprudence.

As a rule, circulars and regulations which prescribes a penalty for its violation should be
published before becoming effective

General principle and theory that before the public is bound by its contents, a law,
regulation or circular must first be published and the people are officially informed of the
contents and its penalties.

Issue:
Can Que Po Lay be justly convicted of violating Circular No. 20 before its publication?

Ruling:NO
The circular prescribes a penalty in the event of its violation so it has the force and
effect of law and so it should be published before it could have a binding effect.

Circular No. 20 of the Central Bank was issued in the year 1949, it was not published
until November 1951, that is, about 3 months after que po lay’s conviction of its
violation. The Circular did not have any legal effect and bound no one until its
publication in the Official Gazette or after November 1951.
In other words, appellant could not be held liable for its violation, since it was not
binding at the time he was found to have failed to sell the foreign exchange in his
possession.

Before publication, “in the eyes of the law, there was no circular to be violated.” Que Po
Lay therefore did not violate Circular No. 20 and was acquitted.

Article 4: Non-Retroactivity of Laws – Laws shall have no retroactive effect unless

the contrary is provided.

General Rule: Laws have no retroactive effect, unless the contrary is provided.

 Retroactive - extending in scope or effect to a prior time or to conditions that

existed or originated in the past. especially made effective as of a date prior to
enactment, promulgation, or imposition.
 The law looks to the future and has no retroactive effect
 RETROACTIVE APPLICATION - the principle that the legislature has the power
to pass retroactive laws (which do not impair the obligation of contracts, or
vested rights, statutes are not to be construed as intended to have a retroactive
effect) unless such intent is expressly declared or clearly and necessarily implied
from the language of the enactment. In case of doubt, the same must be
resolved against the retrospective effect.

The following are instances when a law may be given retroactive effect:

Exceptions:

1. Unless the law expressly provides for the retroactivity of the law (e.g. this law
shall have retroactive effect as long as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws);

 Family Code of the Philippines which became effective on August 3, 1988

specially provides in Article 256 thereof that the said code “shall have
retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws.”

Exeception to the exception: If it impairs a vested right (rights acquired prior to

passage of law
 Ex post facto law (a law that retroactively changes the legal consequences of
actions that were committed, or relationships that existed, before the enactment
of the law) and impairment of contract (unconstitutional provisions)

2. When the law is curative or remedial;

Curative statutes – cures errors and irregularities

 Since curative laws are not within constitutional inhibitions or retrospective

legislation impairing the obligation of contracts or disturbing vested rights
 Statutes of a curative nature which are necessarily retrospective must be
given a retrospective operation by the courts
 The legislature has power to pass healing/curative acts which do not
impair the obligations of contracts or vested rights.
 If the irregularity consists in doing some act, or doing it in the mode which
the legislature might have made immaterial by an express law, it may do
so by a subsequent one
 Retroactive operation will more readily be ascribed to legislation that is
curative or legalizing than to legislation which may disadvantageously,
though legally, affect past relations and transactions
 The rule in regard to curative statutes is that if the thing omitted or failed to
be done, and the defect sought to be removed or make harmless, is
something which the legislature might have dispensed with by previous
statutes, it may do so by subsequent ones.
 Curative statutes are forms of ‘retrospective legislation which reach back
on past events to correct errors or irregularities and to render valid and
effective at- tempted acts which would otherwise be ineffective for the
purpose the parties intended.’
 They are intended to enable persons to carry into effect that which they
have designed and intended, but which has failed of expected legal
consequences by reason of some statutory disability or irregularity in their
action.
 They, thus make valid that which, before enactment of the statute, was
invalid.

Remedial statutes - method of enforcing rights; they are remedial by curing

defects and adding to the means of enforcing existing obligations.

Laws which regulate the registration of instruments affecting titles to land may be held
to apply to deeds dated before as well as after their enactment when a reasonable time
is given within which the effect of such statutes may be avoided and rendered harmless
in respect to vested rights

3. When the law is procedural

 When a statute deals with procedure only, prima facie (meaning at first
sight or based on first impression), it applies to all actions — those which
have accrued or pending and future actions. Thus, a law prescribing the
form of pleadings will apply to all pleadings filed after its enactment,
although the action is begun before that time
 Also, it has been held that while changes in substantive law or Supreme
Court judicial doctrines interpreting the application of a particular law may
not be applied retroactively, especially when prejudice will result to the
party that has followed the earlier law or judicial doctrine that principle
does not obtain in remedial or procedural law.
 This is especially true in the Philippines where it is within the power of the
Supreme Court to excuse failure to literally observe any rule under the
Rules of Court to avoid possible injustice, particularly in cases where the
subject matter is of considerable value and the judgment being appealed
from is, by its nature, reasonably open to possible modification, if not
reversal

4. When the law is penal in character and favorable to the accused.

 When the law is penal in character and favorable to the accused.

 Article 22 of the Revised Penal Code specifically provides that penal laws
shall have retroactive effect insofar as they favor the person guilty of a
felony, who is not a habitual criminal, although at the time of the
publication of such laws a final sentence has been pronounced and the
convict is serving the same.
 Article 62 of the Revised Penal Code provides that a person shall be
deemed a habitual delinquent, if within a period of ten years from the date
of his release or last conviction of the crime 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.

4. Interpretative Statutes;
5. Emergency Laws;
6. Laws creating new rights;
7. Tax laws when expressly declared or is clearly the legislative intent; and
 Note: Concept of Ex Post Facto Law

Article 5: Mandatory and Prohibitory Laws – Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when the law itself authorizes their
validity.

General Rule: Acts contrary to mandatory or prohibitory laws are VOID.

Exceptions: 1. The law makes the act valid but punishes the violator; 2. Law itself
authorizes its validity; 3. Law makes the act only voidable; and 4. Law declares the
nullity of the act but recognizes its effects as legally existing.

MANDATORY – one which prescribes some element as requirement, “must” or “shall”

 A mandatory provision of law is one the omission of which renders the

proceeding or acts to which it relates generally illegal or void.
 Thus, prescriptive periods provided by the law for filing particular suits are
mandatory in character.
 Example: Art. 5 of the Civil Code - Acts executed against the provisions of
mandatory of prohibitory laws shall be void, except when the law itself authorizes
their validity.

PROHIBITORY – one which forbids something; expresses words that elaborate on

“shall not” “must not” or “may not”

 Prohibitory laws are those which contain positive prohibitions and are couched in
the negative terms importing that the act required shall not be done otherwise
than designated (Brehm v. Republic, 9 SCRA 172).
 Acts committed in violation of prohibitory laws are likewise void.
 Example: No person shall be deprived of life, liberty, or property without due
process of law.

However, if the law expressly provides for the validity of acts committed in violation of a
mandatory or prohibitory provision of a statute, such act shall be considered valid and
enforceable.
Article 6: Waiver of Rights – Rights may be waived, unless the waiver is contrary to
law, public order, public policy, morals, or good customs, or prejudicial to a third person
with right recognized by law.

GR: Waiver is the intentional relinquishment of a known right and is not to be presumed
but must be clearly and convincingly shown, either by express stipulation or acts
admitting no other reasonable explanation.

 Waiver is the voluntary (acting of one’s own free will) and intentional
relinquishment of a known right.
 Waivers are not presumed, but must be clearly and convincingly shown, either by
express stipulation or acts admitting no other reasonable explanation.
 It is essential that a right, in order that it may be validly waived, must be in
existence at the time of the waiver
 It also must be exercised by a duly capacitated person (unlike in a state where
you are not capable to understand at that moment such as a drunk person,
insane or demented, minor, etc.) actually possessing the right to make the
waiver.
 A person makes a knowing and intelligent waiver when that person knows that a
right exists and has adequate knowledge upon which to make an intelligent
decision.
 Waiver requires a knowledge of the facts basic to the exercised of the right
waived, with an awareness of its consequences.
 Waiver is made knowingly and intelligently must be illustrated on the record or by
evidence

PROHIBITION AGAINST WAIVER

 Waivers cannot be made if they are contrary to law, public order, public policy,
morals or good customs, or prejudicial to a third person with a right recognized
by law.
 Likewise it has been held that the signing by a disabled employee of a
satisfaction receipt does not constitute a waiver; the law does not consider as
valid any agreement to receive less compensation than the worker is entitled to
recover under the law.
 Acceptance of benefits, such as separation pay and terminal leave benefits,
would not amount to estoppel or waiver of right of employee to contest his illegal
dismissal
  Rights, protections, and advantages conferred by statutes may be waived.
Where, however, the object of a statute is to promote great public interests,
liberty and morals, it cannot be defeated by any private stipulation.

REQUISITES OF A WAIVER: existence of a right, knowledge of the existence, an

intention to relinquish the right

EXCEPTION TO THE GN: If the waiver is contrary to law, public order, public policy,
morals, or good customs; if a waiver prejudices a third person; if the alleged rights do
not exist; if the right is a natural right

NO COMPROMISE UPON THE FF SHALL BE VALID: civil status of persons; validity of

a marriage or legal separation; any ground for legal sep.; jurisdiction of courts; future
support; future legitime

Obligations cannot be renounced but a person may exempt himself from an obligation –
this is an inherent right.

Renunciation of a real right is unilateral and depends on exclusive will of the owner of
the right.

Laws cannot be renounced, although rights arising therefrom may be renounced.

EXAMPLES OF WAIVERS: waive of right granted by executive orders; waive right

guaranteed by the constitution and to consent to action which would be invalid if taken
against his will; waive of rights of accused to preliminary investigation and right to be
assisted of counsel; right of insurance company to cancel insurance contract because of
violation of its terms by the insured

DM CONSUNJI v CA (GR No. 137873. April 20, 2001)

FACTS
 On November 22, 1990, Jose Juego, a construction worker of D.M. Consunji he
died due to falling 14 floors from the Renaissance Tower, Pasig City. A police
report was filed regarding the incident
 The victim was rushed to Rizal Medical Center in Pasig where he was
prounounced DOA
 According to the investigation, Jose and 2 other carpenters (Delso and Jessie)
were working on the elevator core of the 14 th floor (The board platform was made
out of steel with plywood flooring and cable and wires attached to its 4 corners
and hooked at the 5 ton chain block) when the bolt of the pin inserted to connect
the chain block with the platform got loose and caused the whole assembly and
 the victim to fall down to the basement. The victim was crushed to death while
the other 2 luckily jumped out for safety.
 Juego’s widow, Maria Juego, she filed a complaint for damages against D.M.
Consunji before the RTC of Pasig. The employer raised, among other defenses,
the widow's prior availment of the benefits from the State Insurance Fund
 The RTC ruled in favor of Maria, ordering Consunji to pay a total of Php644,000.
On appeal, the CA affirmed the RTC’s decision.

 Petitioner maintains that the police report reproduced above is hearsay and,
therefore, inadmissible. The CA ruled otherwise. The report, being an entry in
official records, is an exception to the hearsay rule. Hearsay is not limited to oral
testimony or statements. The hearsay rule, therefore, excludes evidence that
cannot be tested by cross-examination.

 This Court, citing the work of Chief Justice Moran, enumerated the requisites for
admissibility under the above rule: entry was made by a public officer or by
another person specially enjoined by law to do so; it was made by the public
officer in the performance of his duties

 The CA held that the police report meets all these requisites. Petitioner contends
that the last requisite is not present.

 PO3 Villanueva's testimony which were of his personal knowledge suffice to prove that
Jose Juego indeed died as a result of the elevator crash. PO3 Villanueva also conducted
an ocular inspection and saw the platform for himself.

 Petitioner claimed that such portion of the testimony is mere opinion. Subject to certain
exceptions, the opinion of a witness is generally not admissible.

 Petitioner's contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. Res ipsa loquitur is a Latin phrase that means "the thing
speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just
"res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to
establish a rebuttable presumption of negligence on the part of the defendant

 As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence
which recognizes that prima facie (at first face or at first appearance) negligence may be
established without direct proof and furnishes a substitute for specific proof of negligence

 The CA held that all the requisites of res ipsa loquitur are present in the case at bar: the
following requisites are present: (1) the accident was of a kind which does not ordinarily
 occur unless someone is negligent; (2) the instrumentality or agency which caused the
injury was under the exclusive control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary action or contribution on the part
of the person injured.

 Petitioner does not dispute the existence of the requisites for the application of res ipsa
loquitur, but argues that the presumption or inference that it was negligent did not arise
since it "proved that it exercised due care to avoid the accident which befell respondent's
husband."

 Petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the
deceased's employer damages under the Civil Code.

 Nevertheless, the Court allowed some of the petitioners in said case to proceed with their
suit under the Civil Code despite having availed of the benefits provided under the
Workmen's Compensation Act.

 CA held that private respondent's case came under the exception because private
respondent was unaware of petitioner's negligence when she filed her claim for death
benefits from the State Insurance Fund.

 While stating that there was no negligence attributable to the respondents in the
complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the
"case is civil in nature."

 The CA further held that not only was private respondent ignorant of the facts,
but of her rights as well: Appellee [Maria Juego] testified that she has reached
only elementary school for her educational attainment; that she did not know
what damages could be recovered from the death of her husband; and that she
did not know that she may also recover more from the Civil Code than from the
ECC.

ISSUE/RATIO
W/N Maria Juego may still sue for damages despite having previously availed the
death benefits from the ECC/ W/N Maria’s claiming of the death benefit from the
ECC acts a waiver of her right to claim damages via a civil suit

RULING: YES.
  Waiver is the intentional relinquishment of a known right. It is an act of
understanding that presupposes that a party has knowledge of its rights
but chooses not to assert them.
 Waiver is lack of knowledge or a mistake of fact.
 In this case, the "fact" that served as a basis for nullifying the waiver is the
negligence of petitioner's employees, of which private respondent
purportedly learned only after the prosecutor issued a resolution stating
that there may be civil liability.
 In Floresca, it was the negligence of the mining corporation and its
violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact,
but a conclusion of law, over which only the courts have the final say.
 Such a conclusion binds no one until the courts have decreed so. It
appears, therefore, that the principle that ignorance or mistake of fact
nullifies a waiver has been misapplied in Floresca and in the case at bar.
 Where one lacks knowledge of a right, there is no basis upon which a
waiver can rest. What negates a waiver is lack of knowledge or a mistake
of fact.
 There is no proof that private respondent knew that her husband died in
the elevator crash when she accomplished her application for benefits
from the ECC. There is also no showing that she knew of the remedies
available for her when she made her claim. The argument has no merit.
The application of Article 3 is limited to mandatory and prohibitory laws.
The rule in Floresca allowing private respondent a choice of remedies is
neither mandatory nor prohibitory. Accordingly, her ignorance thereof
cannot be held against her.
 In any event, there is no proof that private respondent knew that her
husband died in the elevator crash when on November 15, 1990 she
accomplished her application for benefits from the ECC. The police
investigation report is dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the application in her behalf
on November 27, 1990.
 There is also no showing that private respondent knew of the remedies
available to her when the claim before the ECC was filed. On the contrary,
private respondent testified that she was not aware of her rights.

RULING
The case is REMANDED to the RTC of Pasig City to determine whether the
award decreed in its decision is more than that of the ECC. Should the award
decreed by the trial court be greater than that awarded by the ECC, payments
 already made to private pursuant to the Labor Code shall be deducted therefrom.
In all other aspects, the decision of the CA is AFFIRMED.

CUI V. ARELLANO UNIVERSITY G.R. NO. L- 15127

FACTS:

 Emeterio Cui was a law student in Arellano University from the school year
1948-1949 up to and including the first semester of his fourth year.
 During his stay there, Cui received a scholarship from the university for
scholastic merit. Before Arellano University gave Cui the scholarship,
however, the former was made to sign the following:
 “In consideration of the scholarship granted to me by the University, I hereby
waive my right to transfer to another school without having refunded to the
University the equivalent of my scholarship cash.”
 On August 16, 1949, the Director of Private Schools issued Memorandum No.
38, stating that scholarships given to students for excellence in scholarship or
for leadership in extra-curricular activities should be given because of the
merits of said students and not merely to keep them in the school.
 Francisco Capistrano, the brother of Cui’s mother, was the dean of the
college of law of Arellano University, but on Cui’s last semester in law school,
Capistrano transferred to the College of Law of Abad Santos University.
 Wishing to follow his uncle, Cui left Arellano and enrolled in Abad Santos
University.
 When he was about to take the bar exam, Cui needed the transcripts from
Arellano, but the latter would not give it to him unless he paid the sum
Php1,033.87, the amount he got as scholarship during his enrolment there.
 Cui had no choice but to pay the same so he could take the bar exam but has
since then petitioned the court for the reimbursement of the said amount.

ISSUE:
WON the provision of the contract between Cui and Arellano University waiving the
former’s right to transfer to another school is valid?

HELD: NO.

The lower court resolved this question in the affirmative, upon the ground that the
aforementioned memorandum of the Director of Private Schools is not a law; that the
provisions thereof are advisory, not mandatory in nature

The contract was “repugnant to sound morality and civic honesty.”

The defendant maintains in its brief that the mentioned memorandum of the Director of
Private Schools is null and void because said officer had no authority to issue it, and
because it had been neither approved by the corresponding department head nor
published in the official gazette.

In Gabriel v. Monte de Piedad, the Court said that “in order to declare a contract void as
against public policy, a court must find that the contract as to consideration or the thing
to be done contravenes some established interest of society or is inconsistent with
sound policy and good morals.”

The court does not deem it essential to pass upon the validity of said Memorandum No.
38, for, regardless of the same, we are of the opinion that the stipulation in question is
contrary to public policy and hence, null and void. The aforesaid memorandum merely
incorporates a sound principle of public policy.

WHEREFORE, the decision appealed from is hereby reversed, and another one shall
be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with
interest thereon at the legal rate from September 1, 1954, date of the institution of this
case, as well as the costs, and dismissing defendant's counterclaim. It is so ordered.

Article 7: Repeal of a Law – Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or custom or practice to the
contrary.

When the courts declared a law to be inconsistent with the Constitution, the former shall
be void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they
are not contrary to the laws or the Constitution.

 Repeal of a law is the legislative act of abrogating through a subsequent law the
effects of a previous statute or portions thereof.
 Repeal is either express or implied.
 FC repealed certain sections of NCC
 Express repeal – to know what law is replacing
 Conflict between old and new laws – new prevails
 Supreme court decisions are not laws (Art. 8 of NCC)
 Both laws can stand together – both sustained
 Requisite – same subject matter and repugnant

Repeals and amendments by implications are not favored.

a. Express and Implied Repeal

IMPLIED – not favorable; takes place when the provisions of the subsequent law are
incompatible or inconsistent with those of an earlier law; legislature should be presumed
to know the existing laws on the subject and not have enacted conflicting statutes. All
doubts must be resolved against any implied repeal, and all efforts should be exerted to
harmonize all the laws on the subject

EXPRESS – contained in a special provision of a subsequent law names the law

repealed; is a repeal which is literally declared by a new law, either in specific terms, as
where particular laws and provisions are named and identified and declared to be
repealed, or in general terms, as where a provision in a new law declares all laws and
parts of laws inconsistent therewith to be repealed

b. Effect of a Repeal: Partial Unconstitutionality of Statues

UNCONSTITUTIONAL STATUTES.

 The Constitution is the supreme, organic and fundamental law of the land. No
ordinary statute can override a constitutional provision.
 But in deciding the constitutionality of a statute, every presumption favors the
validity of the same and whenever possible, statutes should be given a meaning
that will not bring them in conflict with the Constitution.
 The constitutionality or unconstitutionality of a statute depends upon factors other
than those existing at the time of the enactment thereof, unaffected by the acts or
omissions of law enforcing agencies, particularly those that take place
subsequently to the passage or approval of the law

PARTIAL UNCONSTITUTIONALITY OF STATUTES.

 Where a portion of a statute is rendered unconstitutional and the remainder valid,

the parts will be separated, and the constitutional portion upheld.

RULES AND REGULATIONS/ADMINISTRATIVE AND EXECUTIVE ACTS.

 Rules and regulations when promulgated in pursuance of the procedure or

authority conferred upon the administrative agency by law, partake of the nature
of a sanction pro- vided in the law.
 This is so because statutes are usually couched in general terms, after
expressing the policy, purposes, remedies and sanctions intended by the
 legislature. The details and the manner of carrying out the law are oftentimes left
to the administrative agency.
 A rule is binding on the courts so long as the procedure fixed for its promulgation
is followed, and its scope is within the statutory authority granted by the
legislature, even if the courts are not in agreement with the policy stated therein
or its innate wisdom
 The regulations adopted under legislative authority by a particular department
must be in harmony with the provisions of the law, and for the sole purpose of
carrying into effect its general provisions. By such regulations, of course, the law
itself cannot be extended, so long, however, as the regulations relate solely to
carrying into effect the provisions of the law, they are valid
 Rules and regulations as well as administrative or executive acts violative of the
law and the constitution are invalid.

b.1 Doctrine of Operative Fact- Acts done pursuant to a law which was subsequently
declared unconstitutional remain valid, but not when the acts are done after the
declaration of unconstitutionality.

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.

JUDICIAL CONSTRUCTION AND INTERPRETATION.

 The courts have the principal function of not only resolving legal controversies
but also of interpreting and construing vague provisions of law relative to a
particular dispute.
 Construction, verily, is the art or process of discovering and expounding the
meaning and intention of the authors of the law with respect to its application to a
given case, where that intention is rendered doubtful, among others by reason of
the fact that the given case is not explicitly provided for in the law

EFFECT OF JUDICIAL DECISION.

 Judicial decisions applying and interpreting the law shall form part of the legal
system of the Philippines.
 In effect, judicial decisions, although in themselves not laws, assume the same
authority as the statute itself and, until authoritatively abandoned, necessarily
become, to the extent that they are applicable, the criteria which must control the
actuations not only of those called upon to abide thereby but also those duty
bound to enforce obedience thereto
  The settled rule supported by numerous authorities is a restatement of the legal
maxim “legis interpretatio legis vim obtinet” — the interpretation placed upon the
written law by a competent court has the force of law
 Judicial decisions of the Supreme Court are authoritative and precedent-setting
while those of the inferior courts and the Court of Appeals are merely persuasive.
Indeed, it is the duty of judges to apply the law as interpreted by the Supreme
Court

WHEN JUDICIAL DECISIONS DEEMED PART OF THE LAW.

 The application and interpretation placed by the [Supreme] Court upon a law is
part of the law as of the date of the enactment of the said law since the
[Supreme] Court’s application and interpretation merely established the
contemporaneous legislative intent that the construed law purports to carry into
effect

Doctrine of Stare Decisis: enjoins adherence to judicial precedents and 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.

Article 9: Duty of Judges – No judge or court shall decline to render judgement by

reason of the silence, obscurity, or insufficiency of the laws.

DUTY OF JUDGES.

Judges are tasked with the dispensation of justice in accordance with the constitutional
precept that no person shall be deprived of life, liberty, and property without due
process of law.

Judges must not evade performance of this responsibility just because of an apparent
non-existence of any law governing a particular legal dispute or because the law
involved is vague or inadequate.

He must always be guided by equity, fairness, and a sense of justice in these situations.
Where the conclusions of a judge in his decision are not without logic or reason, he
cannot be said to have been incompetent

JUDICIAL LEGISLATION.

Our government is divided into three great departments, namely the executive, the
legislature and the judiciary.
Each department cannot encroach into the respective domain of the other. Hence, the
legislature cannot undertake the execution of the law. Neither could the executive
legislate substantial law.

The judiciary is tasked with resolving legal controversies and interpreting statutes. The
judiciary cannot legislate. Legislation is the function of Congress.

Article 10: Doubtful Statutes – In case of doubt in the interpretation or application of

laws, it is presumed that the lawmaking body intended right and justice to prevail.

DOUBTFUL STATUTES.

 Where the law is clear, it must be applied according to its unambiguous

provisions. It must be taken as it is devoid of judicial addition and subtraction
 The first and foremost duty of the court is to apply the law.
 Construction and interpretation come only after it has been demonstrated that
application is impossible or inadequate without them
 If there is ambiguity in the law, interpretation of the law requires fidelity to the
legislative purpose.
 What Congress intended is not to be frustrated. Its objective must be carried out.
Even if there be doubt as to the meaning of the language employed, the
interpretation should not be at war with the end sought to be attained
 The Supreme Court has time and again cautioned against narrowly interpreting a
statute as to defeat the purpose of the legislator and stressed that it is of the
essence of judicial duty to construe statutes so as to avoid such deplorable result
(of injustice or absurdity) and that, therefore, a literal interpretation is to be
rejected if it would be unjust or lead to absurd results

Article 11: Customs – Customs which are contrary to law, public order or public policy
shall not be countenanced.

Article 12: Customs – A custom must be proved as a fact, according to the rules of
evidence.

a. Customs must be proven as a fact and the courts are not to take judicial notice
thereof.
b. Elements: 1. Rule of conduct; 2. Formed by repetition of acts; 3. Uniformly observed
or practiced as a social rule; and 4. Is legally binding and obligatory.
  Custom has been defined as a rule of conduct formed by repetition of acts,
uniformly observed (practiced) as a social rule, legally binding and obligatory.
Courts take no judicial notice of custom.
 A custom must be proved as a fact according to the rules of evidence.
 A local custom as a source of right cannot be considered by a court of justice
unless such custom is properly established by competent evidence like any other
fact.
 Merely because something is done as a matter of practice does not mean that
courts can rely on the same for purposes of adjudication as a juridical custom.
 Juridical custom must be differentiated from social custom.
 The former can supplement statutory law or applied in the absence of such
statute. Not so with the latter.
 Customs which are contrary to law, public order or public policy shall not be
countenanced.
 Custom, even if proven, cannot prevail over a statutory rule or even a legal rule
enunciated by the Supreme Court

However, if the following requisites are present, courts are justified in considering
custom in deciding a case:

 Allegation and proof of the existence of such custom;

 Consistency with law;
 Consistency with public order and public policy; and
 Belief and (juridical) intention of the community to make the conduct as obligatory
as a law (also known as convictio juris seu necessitates; in international law, this
is called opinio juris sive necessitates).
 Proof of the existence of the custom should include:
 Evidence of repeated compliance with such custom;
 Evidence of the community members' uniform compliance with the custom; and
 Evidence of lapse of sufficient time (which further proves existence and due
observance).

Belief or intention of the community to made the custom as binding as law is shown by
the existence of punishments or consequences that would befall anyone who disregards
or violates said custom.

EXAMPLE: A custom that allows the dissolution of marriage and, thereafter, remarriage
without compliance with the processes required by law also, therefore, cannot be
countenanced since such is against the Family Code and the Revised Penal Code.
A custom of using horses for kalesas. Old horse caused accident. (?)

Article 13: Counting of Days, Months and Years – When the law speaks of years,
months, days or nights, it shall be understood that years are of 365 days each; months
of 30 days; days of 24 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.

 When the law speaks of years, it is understood that years are 365 days each
 In computing years, the first year is reached after completing the first 365 days.
After the first 365th day, the first day of the second 365-day cycle begins.
 Plaintiff-appellant alleged that it was December 21, 1965, but appellee Tecson
maintains otherwise, because “when the laws speak of years x x x it shall be
understood that years are of three hundred sixty-five days each” — according to
Article 13 of our Civil Code — and, 1960 and 1964 being leap years, the month
of February in both had 29 days, so that ten (10) years of 365 days each, or an
aggregate of 3,650 days, from December 21, 1955, expired on December 19,
1965. The lower court accepted this view in its appealed order of dismissal.
 When the law spoke of months, it meant a “natural” month or “solar” month, in
the absence of express provision to the contrary.
 Supreme Court declared that, pursuant to Art. 7 of said Code, “whenever months
x x x are referred to in the law, it shall be understood that months are 30 days,”
not the “natural,” “solar” or “calendar’’ months, unless they are “designated by
name,” in which case “they shall be computed by the actual number of days they
have.”
 The law likewise states that, if the month is designated by its name, it shall be
computed by the number of days which it has. Thus, if the law provides that a
particular tax shall be paid in January 1998, it means anytime within the 31 days
of January. If the month designated is April, then it means within the 30 days of
April.

DAY, NIGHT AND PERIOD.

 The law also provides that when the law speaks of days, it shall be understood
that days are of twenty- four hours, and nights from sunset to sunrise.
 In counting a period, the first day shall be excluded and the last day included.
 Hence, if a law states that a particular statute is to be effective on the 20th day
from its publication and such publication was actually made on February 3, 1998,
 then the law shall be effective on February 23, 1998. The first day which is
February 3, 1998 is excluded while the last day which is February 23, 1998 is
included.

a. Difference between those imposed by Agreement vs Laws

Article 14. Obligatory Force of 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.

General Rule: Citizens and foreigners are subject to all penal laws imposed by the
Philippines as well as all laws enacted for the maintenance of public security and safety.

Exceptions:

1. When the Philippine government has waived its criminal jurisdiction over the
foreigners based on the principles of international law and treaties;
2. When foreigners are within the territory of their Embassies considered as foreign
soil;
3. Parliamentary Immunity; and
4. Article 2 of the Revised Penal Code.

OBLIGATORY FORCE OF PENAL LAWS.

Citizens and foreigners are subject to all penal laws and all other laws designed to
maintain public security and safety.

The liability for any violation of the said laws will even attach regardless of whether or
not a foreigner is merely sojourning in Philippine territory.

EXCEPTION.

While foreigners may be liable for committing offenses in violation of penal laws and
those of public security and safety, they may however be immune from suit and,
therefore, cannot be criminally prosecuted in the Philippines in certain cases where the
Philippine government has waived its criminal jurisdiction over them on the basis of the
principles of public international law and treaty stipulations.

Under the 1961 Vienna Convention on Diplomatic Relations of which the Philippines is a
signatory, it is provided that the person of the diplomatic agent shall be inviolable and
he shall not be liable to any form of arrest or detention (Article 29, Vienna Convention).
He shall enjoy immunity from criminal jurisdiction of the receiving state (Article 31,
Vienna Convention). A diplomatic agent, under Article 1 of the same convention, is the
head of the mission or a member of the diplomatic staff of the mission.

Also, heads of state who are officially visiting here in the Philippines are immune from
Philippine criminal jurisdiction.

Article 15. Nationality Rule – 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.

NATIONALITY RULE.

 Regardless of where a citizen of the Philippines might be, he or she will be

governed by Philippine laws with respect to his or her family rights and duties, or
to his or her status, condition and legal capacity.
 If a Filipino, regardless of whether he or she was married here or abroad, initiates
a petition abroad to obtain an absolute divorce from his wife or her husband
(whether Filipino or foreigner) and eventually becomes successful in getting an
absolute divorce decree, the Philippines will not recognize such absolute divorce.
 This is so because, pursuant to the second paragraph of Article 26 of the Family
Code, the only absolute divorce which the Philippines recognizes is one which is
procured by the alien spouse of the Philippine citizen.
 Hence, in the eyes of Philippine law in so far as the Filipino is concerned and in
cases where he or she is the one who procures the absolute divorce abroad, his
or her status is still married and therefore should he or she marry again, he or
she can be considered to have committed either concubinage in case of the
husband or adultery in case of the wife (See Tenchavez v. Escano, 15 SCRA
355).
 Capacity to contract – cannot set aside contract on the ground of minority if in the
country he lives in, he is already age of majority even if in the PH he is still a
minor
 Renunciation of allegiance – governed by his national law

PILAPIL V. IBAY SOMERA, 174 S 653

FACTS:
  Petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and private respondent
Erich Ekkehard Geiling, a German national, were married before the Registrar of
Births, Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany.
 After about three and a half years of marriage, the respondent initiated a divorce
proceeding against the petitioner in Germany before the Schoneberg Local Court
in January, 1983 and such court promulgated a decree of divorce on the ground
of failure of marriage of the spouses.
 More than five months after the issuance of the divorce decree, the respondent
filed two complaints for adultery arguing that, while still married to said
respondent, petitioner “had an affair with a certain William Chua as early as 1982
and with yet another man named Jesus Chua sometime in 1983”.
 Two complaints for adultery against the petitioner were filed and raffled to two
branches of the Regional Trial Court of Manila.
 In the course of the proceedings, petitioner filed a motion to quash but the motion
was denied by the respondent judge.
 On October 27, 1987, petitioner filed this special civil action for certiorari and
prohibition, seeking the annulment of the order of the lower court denying her
motion to quash.
 The petition is anchored on the main ground that the court is without jurisdiction
“to try and decide the charge of adultery, since the purported complainant, a
foreigner, does not qualify as an offended spouse having obtained a final divorce
decree under his national law prior to his filing the criminal complaint.”

ISSUE:
Whether or not the husband can file a case for adultery despite the foreign divorce
decree

RULING:NO.

 Under the Revised Penal Code (Art. 344), the crime of adultery cannot be
prosecuted except upon a sworn written complaint filed by the offended spouse.
 The compliance with this rule is a jurisdictional, and not a formal, requirement.
 It follows that such initiator must have the status, capacity or legal representation
to do so at the time of the filing of the criminal action.
 As argued by petitioner, Article 344 of the Revised Penal Code states that the
marital relationship is still subsisting at the time of the adultery happening.
 (American jurisprudence) There is a rule that after a divorce has been decreed,
the innocent spouse no longer has the right to institute proceedings against the
 offenders where the statute provides that the innocent spouse shall have the
exclusive right to institute a prosecution for adultery.
 Where, however, proceedings have been properly commenced, a divorce
subsequently granted can have no legal effect on the prosecution of the criminal
proceedings to a conclusion.

 WHEREFORE, the questioned order denying petitioner's motion to quash is SET

ASIDE and another one entered DISMISSING the complaint in Criminal Case
No. 87-52435 for lack of jurisdiction. The temporary restraining order issued in
this case on October 21, 1987 is hereby made permanent.

ROEHR V. RODRIGUEZ, 404 S 495

FACTS:

 Petitioner Wolfgang O. Roehr, a German citizen, married private respondent

Carmen Rodriguez, a Filipina, on December 11, 1980 in Germany. Their
marriage was subsequently ratified on February 14, 1981 in Tayasan, Negros
Oriental. Out of their union were born 2 daughters - Carolynne and Alexandra
Kristine.
 Carmen filed a petition for declaration of nullity of marriage before the Makati
Regional Trial Court (RTC). Wolfgang filed a motion to dismiss, but it was denied.
 Wolfgang obtained a decree of divorce from the Court of First Instance of
Hamburg-Blankenese. Said decree also provides that the parental custody of the
children should be vested to Wolfgang.
 Wolfgang filed another motion to dismiss for lack of jurisdiction as a divorce
decree had already been promulgated, and said motion was granted by Public
Respondent RTC Judge Salonga.
 Carmen filed a Motion for Partial Reconsideration, with a prayer that the case
proceed for the purpose of determining the issues of custody of children and the
distribution of the properties between her and Wolfgang. Judge Salonga partially
set aside her previous order for the purpose of tackling the issues of support and
custody of their children.

ISSUE 1: W/N Judge Salonga was correct in granting a partial motion for
reconsideration.
Ruling:-Yes.

 A judge can order a partial reconsideration of a case that has not yet attained
finality, as in the case at bar.
  The Supreme Court goes further to say that the court can modify or alter a
judgment even after the same has become executory whenever circumstances
transpire rendering its decision unjust and inequitable, as where certain facts and
circumstances justifying or requiring such modification or alteration transpired
after the judgment has become final and executory and when it becomes
imperative in the higher interest of justice or when supervening events warrant it.

ISSUE 2: W/N a foreign divorce decree recognized in our jurisdiction and does it affect
the obligations on care and support of the children?

Ruling: No.

 In the present case, the fact that private respondent obtained a valid divorce in
his country, the Federal Republic of Germany, is admitted. Said divorce and its
legal effects may be recognized in the Philippines insofar as private respondent
is concerned in view of the nationality principle in our civil law on the matter of
status of persons.
 Under the same considerations and rationale in Van Dorn, private respondent,
being no longer the husband of petitioner, had no legal standing to commence
the adultery case under the imposture that he was the offended spouse at the
time he filed suit.
 The allegation of private respondent that he could not have brought this case
before the decree of divorce for lack of knowledge, even if true, is of no legal
significance or consequence in this case. When said respondent initiated the
divorce proceeding, he obviously knew that there would no longer be a family nor
marriage vows to protect once a dissolution of the marriage is decreed.
 Neither would there be a danger of introducing spurious heirs into the family,
which is said to be one of the reasons for the particular formulation of our law on
adultery, since there would henceforth be no spousal relationship to speak of.
 As a general rule, divorce decrees obtained by foreigners in other countries are
recognizable in our jurisdiction. But the legal effects thereof, e.g. on custody,
care and support of the children, must still be determined by our courts.
 Before our courts can give the effect of res judicata to a foreign judgment, such
as the award of custody to Wolfgang by the German court, it must be shown that
the parties opposed to the judgment had been given ample opportunity to do so
on grounds allowed under Rule 39, Section 50 of the Rules of Court (now Rule
39, Section 48, 1997 Rules of Civil Procedure).
 In the present case, it cannot be said that private respondent was given the
opportunity to challenge the judgment of the German court so that there is basis
for declaring that judgment as res judicata with regard to the rights of Wolfgang
 to have parental custody of their two children. The proceedings in the German
court were summary. As to what was the extent of Carmen’s participation in the
proceedings in the German court, the records remain unclear.
 Absent any finding that private respondent is unfit to obtain custody of the
children, the trial court was correct in setting the issue for hearing to determine
the issue of parental custody, care, support and education mindful of the best
interests of the children.

GARCIA VS. RECIO, G.R. NO. 138322, OCT. 2, 2001

FACTS:

 The respondent, a Filipino was married to Editha Samson, an Australian citizen,

in Rizal in 1987. They lived together as husband and wife in Australia.
 In 1989, the Australian family court issued a decree of divorce supposedly
dissolving the marriage.
 In 1992, respondent acquired Australian citizenship. In 1994, he married Grace
Garcia, a Filipina, herein petitioner, in Cabanatuan City.
 In their application for marriage license, respondent was declared as “single” and
“Filipino”.
 In October 1995, they lived separately; and in 1996 while in Australia, their
conjugal assets were divided.
 In 1998, petitioner filed Complaint for Declaration of Nullity of Marriage on the
ground of bigamy, claiming that she learned of the respondent’s former marriage
only in November. On the other hand, respondent claims that he told petitioner of
his prior marriage in 1993, before they were married.
 Respondent also contended that his first marriage was dissolved by a divorce
decree obtained in Australia in 1989 and hence, he was legally capacitated to
marry petitioner in 1994. The trial court declared that the first marriage was
dissolved on the ground of the divorce issued in Australia as valid and
recognized in the Philippines.
 Hence, this petition was forwarded before the Supreme Court.

ISSUES:

1. Whether or not the divorce between respondent and Editha Samson was proven.

HELD: NO

 The Philippine law does not provide for absolute divorce; hence, our courts
cannot grant it.
  In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family
Code allows the former to contract a subsequent marriage in case the divorce is
“validly obtained abroad by the alien spouse capacitating him or her to remarry”.
 A divorce obtained abroad by two aliens, may be recognized in the Philippines,
provided it is consistent with their respective laws.
 Before our courts can recognize a foreign divorce, the party pleading it must
prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.
 In this case, the divorce decree between the respondent and Samson appears to
be authentic, issued by an Australian family court. Although, appearance is not
sufficient; and compliance with the rules on evidence regarding alleged foreign
laws must be demonstrated, the decree was admitted on account of petitioner’s
failure to object properly because he objected to the fact that it was not
registered in the Local Civil Registry of Cabanatuan City, not to its admissibility.
 Respondent claims that the Australian divorce decree, which was validly
admitted as evidence, adequately established his legal capacity to marry under
Australian law.
 However, there are two types of divorce, absolute divorce terminating the
marriage and limited divorce merely suspending the marriage. In this case, it is
not known which type of divorce the respondent procured.
 Even after the divorce becomes absolute, the court may under some foreign
statutes, still restrict remarriage.
 Under the Australian divorce decree “a party to a marriage who marries again
before this decree becomes absolute commits the offense of bigamy”. This
shows that the divorce obtained by the respondent might have been restricted.
 Respondent also failed to produce sufficient evidence showing the foreign law
governing his status. Together with other evidences submitted, they don’t
absolutely establish his legal capacity to remarry according to the alleged foreign
law.
 Case remanded to the court a quo. The marriage between the petitioner and
respondent cannot be declared null and void based on lack of evidence
conclusively showing the respondent’s legal capacity to marry petitioner. With the
lack of such evidence, the court a quo may declare nullity of the parties’ marriage
based on two existing marriage certificates.

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

Intestate – not having made a will before one dies

Testamentary - a trust which arises upon the death of the testator, and which is
specified in their will.

1.13.1 General Rule: Real property as well as personal property shall be governed by
the law of the place where these are situated.

Exceptions: a. Order of Succession; b. Amount of Successional Rights; c. Capacity to

Succeed; and d. Intrinsic Validity of the Provisions of the Will.

LAW GOVERNING REAL PROPERTIES.

 The law of the country where the real property is situated shall be the governing
law over such real property. However, with respect to the order of succession
and the amount of successional rights, whether in intestate or testamentary
succession, they shall be regulated by the national law of the deceased and this
is applicable regardless of the nature of the pro
 Intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found.
 Appellants would also point out that the decedent executed two wills — one to
govern his Texas estate and the other his Philippine estate — arguing from this
that he intended Philip- pine law to govern his Philippine estate. Assuming that
such was the decedent’s intention in executing a separate Philippine will, it would
not alter the law, The parties admit that the decedent Amos G. Bellis was a
citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are
no forced heirs or legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights are to be determined
under Texas law, the Philippine law on legitimes cannot be applied to the testacy
of Amos G. Bellis.

MINCIANO VS. BRIMO 50 PHIL 867

  FACTS:
The judicial administrator of the estate of the deceased, Joseph Brimo, filed a
scheme of partition.
 However, one of the brothers of the deceased opposed the said partition.
According to the scheme and its provision, that the deceased requests that all his
relatives respect his wishes, otherwise those who opposed the same shall be
cancelled in said disposition in favor of the oppositor.
 The apellant in the case, who opposed the same, based his opposition on the
fact that the deceased was a Turkish citizen, that his disposition should be in
accordance with the laws of his nationality.

ISSUE:
(1) WON the disposition shall be made in accordance with Philippine Laws
(2) WON there shall be cancellation of disposition/s in favor of the appellant-oppositor

HELD:
No, although the disposition provides an express provision that it shall be governed by
Philippine Laws and those who opposed the condition of the provisions given shall be
cancelled from the disposition, the fact is that the condition itself is void for being
contrary to law. Article 792 of the Civil Code provides:
“Impossible conditions and those contrary to law or good morals shall be considered as
not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even
should the testator otherwise provide.”

It is contrary to law because it expressly ignores the decedent’s national law, according
to Article 10 of the Civil Code, such national law shall govern his testamentary
dispositions. Therefore, the institution of the legatees are unconditional and are valid, as
well as those favorable to herein appellant-oppositor.

ORION Savings Bank vs. Suzuki G.R.No. 205487, Nov. 12, 2014

Facts:

 August 26, 2003, Kang was the registered owner of Unit No. 536 and Parking
Slot No. 42;
 The mortgage in favor of Orion supposedly executed by Kang, with Entry No.
66432/C-10186 dated February 2, 1999, was subsequently cancelled by Entry
No. 73232/T No. 10186 dated June 16, 2000;
 That the alleged Dacion en Pago was never annotated in CCT Nos. 18186 and
9118;
  That Orion only paid the appropriate capital gains tax and the documentary
stamp tax for the alleged Dacion en Pago on October 15, 2003;
 That Parking Slot No. 42, covered by CCT No. 9118, was never mortgaged to
Orion; and
 That when Suzuki bought the properties, he went to Orion to obtain possession
of the titles.

Issue:
Whether or not Korean Law should be applied in conveying the conjugal property of
spouses Kang?

Ruling:

 RTC in favor of Suzuki; The court found that Suzuki was an innocent purchaser
for value whose rights over the properties prevailed over Orion’s.
 Court of appeals in favor of Suzuki; The Court may inquire into conclusions of
fact when the inference made is manifestly mistaken Supreme Court in favor of
Suzuki; petition denied due to lack of merit
 In the present case, Orion, unfortunately failed to prove the South Korean law on
the conjugal ownership of property. It merely attached a “Certification from the
Embassy of the Republic of Korea” to prove the existence of Korean Law. This
certification, does not qualify as sufficient proof of the conjugal nature of the
property for there is no showing that it was properly authenticated bythe seal of
his office, as required under Section 24 of Rule 132.30
 Accordingly, the International Law doctrine of presumed-identity approach or
processual presumption comes into play, i.e., where a foreign law is not pleaded
or, even if pleaded, is not proven, the presumption is that foreign law is the same
as Philippine Law.
 Under Philippine Law, the phrase “Yung Sam Kang ‘married to’ Hyun Sook Jung”
is merely descriptive of the civil status of Kang. In other words, the import from
the certificates of title is that Kang is the owner of the properties as they are
registered in his name alone, and that he is married to Hyun Sook Jung.
We are not unmindful that in numerous cases we have held that registration of
the property in the name of only one spouse does not negate the possibility of it
being conjugal or community property. In those cases, however, there was proof
that the properties, though registered in the name of only one spouse, were
indeed either conjugal or community properties. Accordingly, we see no reason
to declare as invalid Kang’s conveyance in favor of Suzuki for the supposed lack
of spousal consent.
 The petitioner failed to adduce sufficient evidence to prove the due execution of
the Dacion en Pago Article 1544 of the New Civil Code of the Philippines
 provides that:
ART. 1544. If the same thing should have been sold to different vendees, the
ownership shall be transferred to the person who may have first taken
possession thereof in good faith, if it should be movable property. Should it be
immovable property, the ownership shall belong to the person acquiring it who in
good faith first recorded it in the Registry of Property.
Should there be no inscription, the ownership shall pertain to the person who in
good faith was first in the possession; and, in the absence thereof, to the person
who presents the oldest title, provided there is good faith.

Article 17. Extrinsic Validity of Wills and Prohibitive Laws – 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
Philippines 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 judgements promulgated, or by determinations or conventions
agreed upon in a foreign country.

 Lex Loci Celebracionis - Latin term that means "law of the place of the
ceremony." It refers to the law of the place where a contract, especially a
marriage contract, is made. This law usually governs when the validity of a
marriage is at issue.
 Forms are governed by laws of the country where it was executed
 PH embassy in other countries – follows PH laws
 Performance of contracts – law prevails from place of performance
 Performance of remedies – law of place where action is brought

EXTRINSIC VALIDITY

 The law provides clearly that the forms and solemnities of public instruments,
wills, and contracts shall be governed by the laws of the country where they are
executed.
 Thus, if in Japan, for example, it is required that for a holographic will to be valid
the date thereof need not be in the handwriting of the testator, “then’’ such a will
is valid even if under Philippine laws the contents of a holographic will, including
the date, must all be in the handwriting of the testator.
ACTS BEFORE DIPLOMATIC AND CONSULAR OFFICIALS

 Diplomatic and consular officials are representatives of the state.

 Hence, any act or contract made in a foreign country before diplomatic and
consular officials must conform with the solemnities under Philippine law.
 This is so, also, because the host country where such diplomatic or consular
officials are assigned, by rules of international law, waives its jurisdiction over the
premises of the diplomatic office of another country located in the said host
country.
 Hence, marriages between two Filipinos solemnized by a consular official abroad
must be made following Philippine laws.
 Thus, the issuance of the marriage license and the duties of the local civil
registrar and of the solemnizing officer with regard to the celebration of the
marriage shall be performed by a consul-general, consul, or vice-consul abroad
(See Article 10 of the Family Code).

PROHIBITIVE LAWS

 Under our law, 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.
 Hence, considering that the only ways to terminate a marriage in the Philippines
are by nullifying a marriage or by annulling the same on the basis of the specific
grounds exclusively enumerated under the Family Code of the Philippines, and
by filing an affidavit of reappearance for the purpose of terminating a subsequent
marriage solemnized under Article 41 of the same code, any Filipino who
procures an absolute divorce abroad will remain, in the eyes of Philippine law, as
not having been divorced.
 Thus, in a case where a Filipina wife obtained a divorce abroad and later
remarried an American, the Filipino husband in the Philippines can file a legal
separation case against the wife for having technically committed adultery,
considering that the absolute divorce is not recognized in the Philippines (See
Tenchavez v. Escano, 15 SCRA 355).

SAUDI ARABIAN AIRLINES VS. REBESENCIO, ET.AL. G.R. NO. 198587, JAN. 24,
2015

FACTS
  Petitioner Saudi Arabian Airlines (Saudia) is a foreign corporation established
and existing under the laws of Jeddah, Kingdom of Saudi Arabia.
 Respondents were recruited and hired by Saudia as Flight Attendants with the
accreditation and approval of the Philippine Overseas Employment
Administration (POEA).
 Respondents continued their employment with Saudia until they were separated
from service on various dates in 2006. The respondents contended that the
termination of their employment was illegal.
 They alleged that the termination was made solely because they were pregnant.
As respondents alleged, they had informed Saudia of their respective
pregnancies and had gone through the necessary procedures to process their
maternity leaves.
 Saudia had given its approval but later on informed respondents that its
management in Jeddah, Saudi Arabia had disapproved their maternity leaves. In
addition, it required respondents to file their resignation letters.
 Respondents were told that if they did not resign, Saudia would terminate them
all the same. The threat of termination entailed the loss of benefits, such as
separation pay and ticket discount entitlements. The respondents were required
to report to the office one month into their maternity leave.
 Saudia anchored its disapproval of respondents' maternity leaves and demand
for their resignation on its "Unified Employment Contract for Female Cabin
Attendants" (Unified Contract) which provides that if the Air Hostess becomes
pregnant at any time during the term of this contract, this shall render her
employment contract as void and she will be terminated due to lack of medical
fitness.
 The respondents averred that the Unified Contract took effect after the approval
of their maternity leaves.
 Rather than comply and tender resignation letters, respondents filed separate
appeal letters that were all rejected.
 Faced with the dilemma of resigning or totally losing their benefits, respondents
executed handwritten resignation letters.

ISSUES
1. Whether or not the respondents voluntarily resigned or were illegally terminated.

2. Whether or not the Philippine courts have jurisdiction over the case

HELD:
1. Yes, the respondents were illegally dismissed. The petitioner Saudia themselves
stated that the Saudi law does not allow the termination of employment of women who
take maternity leaves Under the Labor Laws of Saudi Arabia and the Philippines, it is
illegal and unlawful to terminate the employment of any woman by virtue of pregnancy.
The law in Saudi Arabia is even more harsh and strict in that no employer can terminate
the employment of a female worker or give her a warning of the same while on
Maternity Leave, the specific provision of Saudi Labor Laws on the matter is hereto
quoted as follows: “An employer may not terminate the employment of a female worker
or give her a warning of the same while on maternity leave.” (Article 155, Labor Law of
the Kingdom of Saudi Arabia, Royal Decree No. M/51.)

2. Yes, the Philippine court has jurisdiction over the case. Saudia asserts that
stipulations set in the Cabin Attendant contracts require the application of the laws of
Saudi Arabia. It insists that the need to comply with these stipulations calls into
operation the doctrine of forum non conveniens and, in turn, makes it necessary for
Philippine tribunals to refrain from exercising jurisdiction. Forum non conveniens, like
the rules of forum shopping, litis pendentia, and res judicata, is a means of addressing
the problem of parallel litigation. While the rules of forum shopping, litis pendentia, and
res judicata are designed to address the problem of parallel litigation within a single
jurisdiction, forum non conveniens is a means devised to address parallel litigation
arising in multiple jurisdictions. On the matter of pleading forum non conveniens, the
court state the rule, thus: Forum non conveniens must not only be clearly pleaded as a
ground for dismissal; it must be pleaded as such at the earliest possible opportunity.
Otherwise, it shall be deemed waived.

Article 18. Suppletory Nature of the NCC – In matters which are governed by the
Code of Commerce and special laws, their deficiency shall be supplied by the
provisions of this Code.

SUPPLETORY NATURE. The law clearly provides that, in matters which are governed
by the Code of Commerce or by special laws, any deficiency in the latter shall be
supplied by the provisions of the Civil Code. Thus, in Insular v. Sun Life, 41 Phil. 269,
the Supreme Court held that there was no perfection of a life annuity because there was
no acceptance of the contract. The Supreme Court applied the rules on contracts under
the Civil Code in view of the absence of any provision in the Insurance Act relative to
the manner by which a contract is perfected.