PERSONS AND FAMILY RELATIONS
Article 1 of the Civil Code
Article 1. This Act shall be known as the "Civil Code of the
Philippines.
Now, this chapter on persons and family relations, usually, or
rather pertains to the effect and application of laws. So under
this chapter, we will be discussing key concepts which in fact
will not only be applicable to your study of persons and family
relations but to other laws as well because the civil code is in
fact a very broad code. It covers not just persons and family
relations. It covers contracts, torts, sales, partnership, agency
–so in fact the civil code is very broad but for purposes of our
discussion this evening we will only be talking about Articles 1-
14 of the Civil Code.
So the Civil Code became effective on August 30,1950 and it
has been in effect ever since. However, some parts of the civil
code have been repealed by the Family Code.
The first chapter of the Civil Code discusses the effect and
application of laws. So this covers Article 1-18. But before that
let’s have a preview or rather let’s briefly discuss what is civil
law in the first place or going back even further, we ask the
question, WHAT IS THE LAW?
Law
1. Rule of conduct,
2. Just and obligatory,
3. Laid down by legitimate authority
4. For common observance and benefit. (Sanchez
Roman)
So when we say rule of conduct, it is a set of rules that governs
the behaviors of persons and transactions which involve things
or institutions.
When we say just and obligatory, presumably the law is just
meaning it is fair and harmonizes the rights of individuals as
among themselves and with the greater society.
It’s obligatory because everyone is expected to observe the
laws and non-compliance will merit some sort of penalty.
Thirdly, it has to be laid down by some legitimate authority
because if it’s not laid down by legitimate authority, then it
cannot be made binding as well. So in our country, who lays
down these laws? It’s the legislative branch, our Congress.
And finally, it’s for the common observance and benefit of
everyone. So in line with it being obligatory, all if not most
people are expected to comply with the law, subject of course
to a few exceptions. And everyone is presumably protected and
benefited by the laws in place.
Civil Law - One of the bar exam components; consists 15%
of your bar grade.
Now Civil Law, like I said earlier, is broad in scope because it
deals with the relationship of individuals with each other. So
person to person, individual to individual, whether natural or
juridical.
And then it also deals with the relationship of an individual
with society. So it covers plenty of possibilities like the
transaction between person A who is a natural person and
person B who is also a natural person or it also covers the
transaction between person A who is a natural person and a
corporation which is a juridical person and then of course
there are multiple times a transaction that can happen
between these individuals.
So that's why Civil Law is very broad in scope and that's also
why if you look at, for example, the bar coverage for civil law
it's very comprehensive.
The Civil Law is a collection of laws which regulate the
private relations of the members of civil society determining
their respective rights and obligations with reference to
things and civil acts (2 Sherman 9)
So this is what I am saying na there are many aspects of civil
law.
Coverage of Civil Law
● The rights of a person and the rights of personality
● The family and the rights of a family
What is the coverage of Civil Law?
● rights of a person and the rights of
personality – the rights of a person what are
you entitled to as a person and what is your
personality. Personality usually pertains to
personality to sue, personality to be sued,
things like that.
 ● The family and the rights of a family
Coverage of Civil Law
The rights of a person, and the rights of
personality
The Family and rights of family
Associations and partnerships
The human patrimony
-The right to things or the
right of property and its modifications
-The right to obligations
-The right to hereditary
succession (Castan, 8th ed.)
Discussion:
Tackles questions like; who would constitute a family? What
right is a family? What rights do individuals in a family have?
What are they entitled to demand from each other? It also
covers Associations and Partnerships. Like when you form a
business, what are you entitled to demand from your partner?
Collolarily, what are your obligations if you’re part of a
partnership or a corporation? It also deals with Human
Patrimony. So, this refers to property. How do you own, trade,
maintain property? How do you deal with others in relation to
property? What are the rules? What are the laws? What makes
a contract binding? Things like that. These are just a few of the
things that are covered under Civil Law.
Civil Code
Civil Code - compilation of existing civil
laws, scientifically arranged into books,
titles, chapters, and sub-heads promulgated
by legislative authority (Black’s Law
Dictionary)
Civil Code is Divided into four (4) books:
-Book I Persons and Family Relations
-Book II is Property, Ownership and
Its Modification
-Book III Different Modes of
Acquiring Property,
-Book IV Obligations and Contracts.
What about the Civil Code? What is the Civil Code? Our Civil
Code is basically the compilation of existing civil laws,
scientifically arranged into book, titles, chapters, and sub-
heads. Again, promulgated by legislative authority. So our civil
code is divided into four books: Book I is Persons and Family
Relations. Book II is Property, Ownership and Its Modification.
Book III refers to the Different Modes of Acquiring Property,
and Book IV pertains to Obligations and Contracts.
When you move further in law school, you will encounter
many Civil Law subjects. Pero kasi naiba na yung curriculum
ngayon no? Pero it used to be that in the second semester, you
have obligations and contracts, which is still the same right
now. You have obligations and contracts in your next
semester, but it will now be paired with sales. And then, for
your second year you have Property, Land Titles, Credit
Transactions, Partnership, Succession, Torts and Damages,
Conflict of Laws. So, madaming civil law subjects in law school.
Civil Law vs. Civil Code
● Civil Law is wider in scope because it encompasses
all laws relating to private relations between the
members of society.
● Civil Code is a mere collection of these laws, but not
all civil laws are found in the Civil Code. Other laws
like PD 603 (Child and Youth Welfare Act), and EO
209 (Family Code) do not form part of the Civil
Code, but form part of the Civil Law of the
Philippines.
So, how would you differentiate then the Civil law versus the
Civil Code?
● Clearly, the Civil Law is wider in scope because it
encompasses all laws relating to private relations
between the members of society.
● On the other hand, the Civil Code is merely a
collection of these laws but not all civil laws are found
in the civil code. Precisely, we have PD 603 which is a
Child and Youth Welfare Act, we have E.O 209 which
is your Family Code and this does not form part of our
Civil Code however they form part of the Civil Law of
the Philippines..
Very basic distinction.
Classification of Laws
● Substantive v. Remedial
● Private v. Public

● Mandatory/Prohibitory v. Pemissive/Directory
How do we classify law then?
There are three ways, or well actually this is not the only way
no, but more or less this is how we generally classify laws. You
have;
Substantive Laws vs Remedial Laws
When you say Substantive Law, it's that part of the law which
creates, defines, and regulates rights or which regulates the
rights and duties which give rise to a cause of action. It is that
part of the law which the courts are established to administer.
What about remedial law?
This one prescribes the method of enforcing rights or obtaining
redress for their invasions.
So, Substantive law is the law that provides you the reason for
bringing your action.
On the other hand, remedial law provides you with a
procedure, the method as to how you will bring your action if
your right is violated.
For example, the right to be recognized as an illegitimate child
or a legitimate child, this one is a substantive right.
But how you’re going to bring your action for recognition, that
is covered by remedial law.
What about the classification between private law and public
law? When we talk about private law, obviously we talk about
the relationship of private individuals, well public law governs
the relationship between the individual and the State and
seeks to regulate societal behaviors, so we have micro v macro
scale.
Obligations and contracts is an example of a private law, or
rather a law that governs the transactions between private
individuals.
On another hand, Criminal Law is an example of a law that
governs the relationship between the individual and the State.
This is apparent in how you see the cases in Criminal Law are
captioned as People of the Philippines v ABC.
This is because the action is being brought not in the interest
of the private offended party, but in the interest of the State
whose interest is to regulate the behavior of society by
preventing the commission of crimes or meting punishment in
order to deter the commission of crimes. So that is the interest
contained in the criminal cases filed against offenders versus
transactions which are private in nature, really the interest
being upheld there is the interest of one person against
another who violated that person’s rights.
Mandatory/ Prohibitory v. Permissive/ Directory
Mandatory or Prohibitory Laws these are laws from which
obviously no deviation is allowed and you’re not allowed to
violate them. Of course, when you violate them, there’s more
or less steeper penalties versus Directory Laws which allow
some leniency in their compliance.
So for example, criminal statutes and penal laws are
mandatory or prohibitory in nature. There is no option to not
comply with them or not to obey them. We have to obey them
otherwise you will be sent to jail.
The period, for example, within which to decide a case on the
part of a judge, its directory meaning it can go beyond the
period, however, that is subject to probably the imposition of
administrative penalties. But that’s not a certainty. It could be
that you can justify it na hindi mo siya madecide within that
period because of several circumstances but in Criminal Law,
the exception is super stringent. So that is why the period to
decide is merely directory as compared to the criminal statute
which is mandatory/prohibitory.
EFFECTIVITY OF LAWS
Effectivity of Laws - Article 2. Laws shall take effect after
fifteen days following the completion of their publication in
the Official Gazette, or in a newspaper of general circulation,
unless it is otherwise provided. This Code shall take effect
one year after such publication.
Discussion:
So previously publication was only limited to the Official
Gazette, but it proved to be inadequate because of
bureaucracy. Meaning, matagal yung process sa publication.
There was no way to publish laws regularly. So with the
amendment of E.O. 200, publication can now be made through
newspapers of general circulation which in our time refer to
the Inquirer, Philippine Star, Manila Bulletin etc.
 A newspaper is of general circulation “if it is made within the
court’s jurisdiction, published at regular intervals for the
dissemination of local news and general information, with
bona fide subscription list of paying subscribers and if it is
not devoted to the interest or published for the
entertainment of a particular class, profession, trade,
calling, race or religious denomination.” (Basa vs. Mercado)
Now, what do you mean when a newspaper is of general
circulation?
It is a general circulation if it is:
1. It is made within the court’s jurisdiction,
2. Published at regular intervals for dissemination
of local news and general information,
3. With bonafide subscription list of paying
subscribers,
4. And if it is not devoted to the interest or published
for the entertainment of a class, profession,
trade, calling, race, or religious denomination
(Basa v. Mercado)
Now, this is not a definition that you need to really memorize,
but if you look at the definition of what is a newspaper of
general circulation the important elements here are that it is
within the court’s jurisdiction published at regular intervals for
the dissemination of local news and general information. So,
there must be the essence of regularity. Ok, so yung mga
major newspapers natin, araw-araw silang nag pa-published,
araw-araw silang dine-deliver. Although, the sad thing is, with
the pandemic, all these businesses took a hit. So, instead of
really printing, what they did was to produce online copies of
it.
We have yet to see, is that valid? SYEMPRE kasi, meron parin
naman siyang printed counterparts even if they reduced the
production of these newspapers in print. Because of the
pandemic, the production lessened. But it’s still being
produced at regular intervals for dissemination of local news
and general information.
Article 2. Laws shall take effect after fifteen (15) days
following the completion of their publication in the Official
Gazette, or in a newspaper of general circulation, unless it is
otherwise provided. This Code shall take effect one year
after such publication.
● Publication is mandatory for a law to take effect.
● The phrase “unless otherwise provided” pertains to
the date of effectivity, not to the requirement of
publication.
● Publication must be complete.
● Purpose: Due Process (in relation to Article
3 of the Civil Code)
So, what are the things that we have to take note of under
article 2?
- Publication is mandatory for a law to take effect
Firstly, Publication is mandatory for a law to take effect.
Publication is indispensable, it’s never something that you
cannot do. It's indispensable, ok in more succinct terms.
- The phrase “unless otherwise provided” pertains to
the date of effectivity, not to the requirement of
publication.
So, for a law to take effect, it has to be published. But the law
can provide for its own date of effectivity. Which is what the
phrase “unless otherwise provided” pertains to, it’s the date of
effectivity, not the requirement of publication.
So, if the law provides for its own date of effectivity, then we
follow that, if it is not, it will be effective on the 16th day from
its publication pursuant to Article 2.
So, remember it does not become effective on the 15th day,
but AFTER 15 days following completion of the publication.
If the law says “it will be effective immediately”. How would
you construe that?
So if it says “effective immediately”, then, you can construe it
as being effective the moment publication is finished.
But if it is silent, it does not say “to be effective immediately”,
then you follow Article 2.
Why is it that we put much stress or emphasis on publication?
Because, this is the basis for us to say that “ignorance of the
law excuses no one”. If you publish, then you can charge
individuals with the responsibility to be aware and
knowledgeable of the law. Kahit na basic understanding lang.
But if you do not publish, there’s no basis for you to say na huy,
expected na dapat alam mo ‘to.
So this goes into the requirement of due process. You cannot
charge someone when they have no knowledge of what they
did. Publication creates the conclusive presumption that man
should know the law he is being charged with.
- Publication must be complete
Of course, the third point is that publication must be complete.
So meaning, from the title of the law, to the effectivity clause.
All provisions must be published. Bawal summary, bawal
salient points lang. So, kung mahaba masyado yung law, ano
ang gawin mo tapos di magkasya sa newspaper? Then, it can
be published in tranches. So may portion lang na ipublish
today, and then tomorrow, and then the following day.
And when do we recon the effectivity if it says effective
immediately? Then the date of the last portion of the law was
published. Or if there’s no “effectively immediate“, then it
becomes effective on the 16th day after publication pursuant
to Article 2.
- Purpose: Due Process (in relation to Article 3 of
the Civil Code)
So like I said earlier, this requirement of publication is for
purposes of due process. And we will discuss Article 3 later on
again reflecting back on Article 2.
Tañada vs. Tuvera
-Considered in the light of other statutes… the conclusion is
easily reached that said Article 2 does not preclude the
requirement of publication in the Official Gazette, even if
the law itself provides for the date of its effectivity.
-The clear object of the [Article 2] is to give the general
public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such
notice and publication, there would be no basis for the
application of the maxim “ignorantia legis non excusat.” It
would be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one.
-The publication of all presidential issuances “of a public
nature” or “of general applicability” is mandated by law.
Obviously, presidential decrees that provide for fines,
forfeitures or penalties […] fall within this category.
Discussion:
So consistent with the tenor of Article 2, The Supreme Court in
Tanada vs. Tuvera held that publication is mandatory even if
the law itself provides for the date of its effectivity. Otherwise,
there would be no basis to penalize a citizen who disobeys the
law when the citizen has no means to know what the law is.
This is in line with the Due Process clause espoused in our
Constitution that no person shall be deprived of his life,
liberty, or property without due process of Law.
What about Supreme Court decisions?
Because as you will learn later on, when we reach Article 8,
Judicial Decisions applying or interpreting the Laws or the
Constitution shall form a part of our Legal System in the
Philippines. In other words, the Supreme Court decisions, the
one you’re reading now, become part of the law of the land.
So the question is raised in De Roy vs. Court of Appeals, do we
have to publish these decisions in the Official Gazette as well?
De Roy vs. Court of Appeals
-Contrary to petitioners’ view, there is no law requiring the
publication of Supreme Court decisions in the Official
Gazette before they can be binding and as a condition to
their becoming effective.
-It is the bounden duty of counsel as lawyer in active law
practice to keep abreast of decisions of the Supreme Court
particularly where issues have been clarified, consistently
reiterated, and published in the advance reports of Supreme
Court decisions (G.R.’s) and in such publications as the
Supreme Court Reports Annotated (SCRA) and law journals.
Discussion on the case:
You know from your reading of De Roy vs. Court of Appeals
there is no need to publish them on the official Gazette
because unlike the laws of the country which all citizens must
be familiar with, the Supreme Court decisions which apply or
interpret these laws are the responsibilities of the lawyers, the
lawyers who are expected to familiarize and study the same
rigidity, the supreme court said when you look at case law it
requires a certain skill to understand jurisprudence owing to
its technicalities, there are terms there which we do not use in
ordinary sense and there are also structures that are discussed
in jurisprudence that an ordinary citizen is not expected to
learn on their own. This is why even if someone has knowledge
of the law; it is still different from a lawyer, because a lawyer
has the skill and expertise that a layman would not have when
reading the law.
ARTICLE 2- EFFECTIVITY OF LAWS
Villafuerte vs. Cordial
-In the instant case, what was being assailed is Resolution
No. 13-2013, which provides for the rules of procedure
concerning the conduct of investigation against municipal
officials in said province, issued by the Sangguniang
Panlalawigan of Camarines Sur. Clearly, it is neither penal in
nature as it does not provide for any sanction or punishment
nor a tax measure. It is merely interpretative of Title II,
Chapter 4 of the LGC , which outlines the procedure when a
disciplinary action is instituted against an elective local
official. Based on the foregoing, Resolution No. 13-2013
need not be published.
-Also, it bears stressing that the RTC erroneously concluded
that the element of publication is an essential element of
the Sangguniang Panlalawigan of Camarines Sur’s
jurisdiction over the proceedings of the case.
-The publication requirement on laws accomplishes the
constitutional mandate of due process. In the 1985 and
1986 Tañada cases, the Court explained that the object of
Article 2 of the Civil Code is to give notice to the public of
the laws to allow them to properly conduct themselves as
citizens. That omission of publication of laws is tantamount
to denying the public of knowledge and information of the
laws that govern it; hence, a violation of due process.
Effectivity of laws, thus, depends on their publication.
Without such notice and publication, the conclusive
presumption cannot apply.
What about the case of municipal laws?
This was the question that was answered in Villafuerte vs.
Cordiall because in cases of municipal laws, what you have to
remember is that their publication is not covered by the Civil
Code. The requirement of their publication is not covered by
the Civil Code but by the local government code because the
local government code is the more specific law that applies to
them. So in the case of Villafuerte vs. Cordial the Supreme
Court referred to Republic Act 7061 to determine whether
Resolution No. 13-2013 which provides for the rule of
procedure concerning the conduct of investigation against
municipal officials in provinces, should have been published
before it was made effective. Because according to the
complainants or according to the petitioners the resolution
provided for the jurisdiction of the sanggunian. But you know
from your reading that this is wrong, that this contention is
wrong because resolution No. 13-2013 did not provide for the
jurisdiction of the Sanggunian, it was the local government
Code that provided for the jurisdiction of the Sanggunian. The
resolution was only interpretive of Chapter 4 of the local
government code. So if it's interpretive, not penal in nature
then there is no need to publish the said resolution.
ARTICLE 3. Ignorance of the law excuses no one from
compliance therewith.
● knowledge of the law is a conclusive presumption
under law. Applies only to prohibitive/mandatory
laws, not permissive/suppletory laws.
● Ignorance of the law vs. Ignorance of fact
-Ignorance of the law is lack of knowledge of the
law insofar as it applies to a particular act or
circumstance. Inexcusable.
-Ignorance of fact is lack of knowledge of some fact
relating to a particular subject matter. Excusable.
So you cannot have Article 3 if you do not comply with the
publication requirement in Article 2 because the publication
requirement in Article 2 provides the conclusive presumptive
knowledge of the law. Of course. This only applies to
prohibitive/mandatory laws, not permissive/suppletory laws.
Permissive or Suppletory Prohibitive or Mandatory
Law Law
Allowed to introduce Not allowed to produce
evidence of the evidence of why you do not
unawareness of a particular know of such law because
permissive law, hence the of the presumption that you
non-compliance should know it, which is
already conclusive against
you.
Ignorance of law vs. Ignorance of fact
 forcing his door open was a robber, was justified to attack the
Ignorance of law Ignorance of fact
man upon his entry in self-defense. Even if it turned out that
the man was not a robber and had not intended any harm
· The lack of · The lack of against Achiong. The Supreme Court said, justified siya sa
knowledge of knowledge of
kanyang hinala that it could have been a robber because what
the law insofar some fact happened in that instance is merely an ignorance of fact,
as it applies to relating to a therefore EXCUSABLE.
a particular act particular
or subject Now, is Article 3 an absolute maxim?
circumstance matter. Even if it is somewhat rigid or absolute there are of course
· Inexcusable. · Excusable. certain instances when the rule in Article 3 can be relaxed.
Article 3. Relaxation of Rules
Example: Example:
You are unaware that the In Criminal Law, US vs. ● A mistake upon a doubtful or difficult question of
Cybercrime Law punishes Achiong, the Supreme Court the law (Art. 526)
cyber bullying. You cannot ruled that Ah Chong, who ● Minors (People v. Navarro)
raise the defense that you thought that the man ● Insane persons (Article 14 of the Revised Penal
were unable to read the law forcing his door open was a Code)
in its entirety; hence you robber, was justified to
are unaware. attack the man upon his (1) A mistake upon a doubtful or difficult question of
entry in self-defense. Even if
the law.
it turned out that the man
● When we say mistake upon a doubtful or difficult
was not a robber and had question of the law–if there is for example confusion
not intended any harm as to how the law should be applied, and this happens
against Achiong. often–ay di naman often–but it happens sometimes.
Now we ask the question: What is the difference of ignorance ● For example, in cases in tax, where there is a dispute
of the law vs. ignorance of fact? as to how to compute periods, things like that…so, if
even the authorities are confused as to how to
Ignorance of law excuses no one from compliance therewith, interpret a particular law, then there is relaxation of
what is the consequence if there is ignorance of fact? IT IS the rules of Article 3.
EXCUSABLE.
(2) In case of minors, and
When we talk about ignorance of fact -it is the lack of ● Minors, also of course, are one of the instances where
knowledge of some fact relating to a particular subject matter. the rule is relaxed. Because, of course, there is a
presumption that they are not yet able to discern the
Juxtapose this to ignorance of the law -it is the lack of consequences of their actions.
knowledge of the law in sofar as it applies to a particular act or
circumstance. (3) In case of insane persons
● The same with insane persons because there is no
Ignorance of the law -INEXCUSABLE consciousness there that is capable of understanding
Ex. you are not aware that posting online made you liable for the law. Therefore, you cannot impose the law as
cyberbullying. You cannot say that, “ay hindi ko alam that the rigidly upon them if there is no consciousness–if there
cyber crime act already punishes cyberbullying, I’m sorry”. Just is no possibility to be aware of the law that was
because you do not know that cybercrime act punishes published.
cyberbullying does not mean you are excused from the
consequences of your action.

Ignorance of fact -EXCUSABLE

Ex. The closest example I can give is a cross reference to your
criminal law cases. U.S. v. Ah Chong who thought that the man
So there is a case under Article 3 which is Caranto v. Caranto.
Article 3. Ignorance of the law excuses no one from
compliance therewith.
Now later on, in your remedial law, you will learn that a
petition for review on certiorari is a mode of appeal. Whereby,
ideally you are only allowed to raise questions of law.
ARTICLE 3 -Knowledge of the Law
Caranto v. Caranto
A question of law arises when there is doubt as to what
the law is on a certain state of facts, while there is a
question of fact when the doubt arises as to the truth or
falsity of the alleged facts. For a question to be one of law,
the question must not involve an examination of the
probative value of the evidence presented by the litigants
or any of them. The resolution of the issue must rest solely
on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a
review of the evidence presented, the question posed is
one of fact.
Discussion:
Now ito si Caranto he brought a petition for review on
certiorari before the supreme court where instead of raising
questions of law, he raised questions of fact. So what is key in
this case of Caranto v. Caranto is the discussion on the
distinction on what is a question of law vs. a question of fact.
So in this case the supreme court said, “a question of law
arises when there is doubt as to what the law is on a certain
state of facts while there is a question of fact when the doubt
arises as to the truth or falsity of the alleged acts. For a
question to be one of law, the question must not involve an
examination of the probative value of the evidence presented
by the litigants or any of them. The resolution of the issue
must rest solely on what the law provides on the given set of
circumstances.”
So if we have to summarize it, when we say a question of fact,
it's a question of whether is it the truth or not. But when we
say a question of law, it's a question of how do we apply the
law to a certain or given set of facts. So it is pretty clear what
the distinction is.
Article 4 - Prospectivity of Laws
Art. 4. Laws shall have no retroactive effect, unless the
contrary is provided.
Statutes should be given prospective (future) operation.
This is consistent with Sec. 10 and Sec. 22 of Article III of the
1987 Constitution, which state:
- Sec. 10. No law impairing the obligations of
contracts shall be passed.
- Sec. 22. No ex post facto law or bill of attainder
shall be enacted.
Discussion:
Next article provides that laws shall have no retroactive effect,
unless the contrary is provided. So this provides the general
rule as to how we apply laws that are passed. So there’s no
retroactive effect, meaning we do not apply to laws or rather
to circumstances which occurred before the effectiveness of
the law.
Statutes should be given prospective or future operation. And
this is consistent with Section 10 and Section 22 of Article III of
the 1987 Constitution, which state that “no law impairing the
obligations of contracts shall be passed.” And Second, “no ex
post facto law or bill of attainder shall be enacted.”
So there’s impairment of contracts, I think this is or I’m not sure
if this will discussed in your Consti 1 or Consti 2, but anyway
when we say “impairing the obligation of contracts”, we say
there is “impairment” if a subsequent law changes the terms
of a contract between the parties, imposes new conditions,
dispenses with those agreed upon, or withdraws remedies for
the enforcement of the rights of the parties.
For example, certificates of public convenience and these are
usually awarded to public utility vehicle operators. So if these
are amended, you amend the rules concerning the issuance of
the certificate of public convenience. They could possibly
affect the contract between bus operators and their drivers
and employees. Ok? But the only thing you also have to
remember is that, while there is a law or rather while there is
a constitutional mandate that says we cannot pass laws which
would impair the obligation of contracts at the same time this
protection is tempered by the existence of police power,
because police power can regulate agreements like these.
Even if to some extent it may appear as if there is an
impairment of the contract. So anyway that’s more of a
discussion that’s better explored under your constitutional
law. But briefly that is also something that’s also something
that you would like to look at, probably.

Article 4 - Prospectivity of Laws
Art. 4 Laws shall have no retroactive effect, unless the
contrary is provided.
Statutes should be given prospective (future) operation.
This is consistent with Sec.
10 and Sec. 22 of Article III of the 1987 Constitution, which
state:
- Sec. 10. No law impairing the obligation of
contracts shall be passed.
- Sec. 22. No ex post facto law or bill of attainder
shall be enacted.
Now, ex post facto law, what is that ?
It’s a law that punishes an act which at the time it was
committed, was not yet punishable by the law.
Example: You are in the business of selling rare pearls and
Congress suddenly passed a law, making punishable the sale of
these rare pearls kasi endangered species na yung clams that
produced them. So if you sold the pearls a day before the law
was made effective, then those transactions prior to the
effectivity of the law, cannot be punished by the new law.
However, if the law says, those previous acts which you
committed are also punishable, then that becomes an ex post
facto law because it extends its effectivity into the past.
Hence, violating due process.
What is a bill of attainder, on the other hand?
A bill of attainder is an act that automatically finds a person
guilty of a crime without trial. Obviously, It’s not allowed
because it violates due process. It’s prohibited because it
violates due process.
Example: Red tagging, although it’s not necessarily something
that leads to prosecution. But if for example, in the event that
a law is passed saying, if you are red-tagged, automatic kulong
ka. Then that’s already a bill of attainder because you’re found
guilty of a crime without trial.
Retroactive application is usually discouraged as: 1) it
imposes a new duty; 2) creates a new obligation; and 3)
attaches a new disability in respect to a past transaction.
Why do we discourage retroactive application of laws as a
general rule? Because number 1, impairing the obligation and
contracts, it imposes a new duty or it cuts down on benefits
that supposedly were to be received out of that contract or it
creates a new obligation. And third, it attaches a new
disability in respect to a past transaction, which is exactly the
case in an ex post facto law. These are circumstances that are
frowned upon by our constitution which is why as much as
possible, there is no retroactive application of new laws.
However, of course, as with any general rule, there are always
exceptions. What are laws that are typically given retroactive
effect? Because the general rule, laws shall have no retroactive
effect.
What's the relaxation or the exception to this general rule?
These are the following:
Article 4 - Laws with Retroactive Effect
1. Remedial laws
2. Penal laws
3. Curative Laws
4. Emergency Laws
5. Laws creating new rights
6. Tax laws
When you say Remedial Laws, this is demonstrated in Atienza
vs Brillantes, Carlos vs Sandoval. It's not in the syllabus
anymore, but I still like talking about this case, Cheng vs Sy.
You also have Penal laws, like for example the Good Conduct
Time Allowance.
This is a law that you will encounter in your Criminal Law. I
think Criminal Law I because it pertains to the computation of
penalties.
You also have Curative Laws, which is discussed in DBP vs
Court of Appeals. Where the legality of DBP's purchase of
certain lands were called to question. And then, eventually
Congress enacted Republic Act 3147 which eventually gave
authority to DBP to purchase those lands. So it became
curative in a sense that any questions as to the invalidity of the
acquisition were cured by the law that was passed.
You also have laws creating new rights.
So you have for example, the use of the father’s surname
under Article 176 as amended by RA9255 which was passed in
2004.
However, there is also a corresponding limitation to that right,
because later on you will see that illegitimate children may use
the surname of their father but if their filiation has been
expressly recognized by their father or when the birth is or
rather their filiation is recognized through their record of birth
appearing in the civil register or when the father makes an
admission in a public document or private handwritten
instrument, this is an example of laws that create new rights
given retroactive effect.
Issue: So the question then becomes should AM No. 02-11-10
be given retroactive effect?
Rule: The Supreme Court said no, it must be applied
prospectively because if you look at Article 1 of AM No. 02-11-
10, it reads:

Why do you think? Because they favor the child who seek
recognition.
Of course, penal laws is favourable to the accused or convict.
This is self explanatory and this is also demonstrated, in think
in the case of Demosparan v People.
ARTICLE 4 – General Rule
“This rule shall govern petitions for declaration of absolute
nullity of void marriages and annulment of voidable marriages
under the Family Code of the Philippines”.
So it’s clear within AM No. 02-11-10 itself that it only applies
to marriages under the Family Code therefore it should be
given prospective application. So dito malinaw kung san
nagsisimula yung effectivity ng law.

Article 4 - General Rule

Carlos v. Sandoval
The innovation incorporated in A.M. No. 02-11-10-SC sets
Carolino vs. Senga
forth a demarcation line between marriages covered by the
Family Code and those solemnized under the Civil Code. The
Firstly, PD No. 1638 was signed by then President Marcos on
Rule extends only to marriages entered into during the
Sept. 10, 1979. Under Article 4 of the Civil Code, it is
effectivity of the Family Code which took effect on August 3,
provided that laws shall have no retroactive effect, unless
1988.
the contrary is provided. It is said that the law looks to the
future only and has no retroactive effect unless the
It is emphasized, however, that the Rule does not apply to
legislator may have formally given that effect to some legal
cases already commenced before March 15, 2003 although
provisions; that all statutes are to be construed as having
the marriage involved is within the coverage of the Family
only prospective operation, unless the purpose and
Code. This is so, as the new Rule which became effective on
intention of the legislature to give them a retrospective
March 15, 200320 is prospective in its application.
effect is expressly declared or is necessarily implied from the
language used; and that every case of doubt must be
Discussion: resolved against retrospective effect.
In Carlos v. Sandoval have the demonstration of the general
rule of Article 4 on prospectivity.
Discussion:
So in this case, what was the issue? It’s the effectivity of A.M.
In this case, what was at issue is whether PD 1638 should
No. 02-11-10-SC which limits a person who may file a petition
have been given retroactive application? And here the
for declaration of absolute nullity of marriage to the husband
Supreme Court also applied the general rule that laws should
or wife.
not be given retroactive application. So in this case, since
Carolino retired under RA 340 not PD 1638 then PD 1638 could
In this case kasi, it was the heirs who brought the petition for
not be made to apply to him.
nullity of their parents’ marriage. Their parents’ marriage was
celebrated prior to the effectivity of the Family Code. So,
Cheng vs. Sy this pertains to BP Blg. 22
meaning what governed the marriage at that time was the Civil
Code. Cheng vs. Sy
Now under the Civil code, walang mention as to who may file
the petition for the nullity of marriage, but with the passage of Petitioner is in error when she insists that the 2000 Rules on
AM No. 02-11-10 it has been delimited. It can only be the Criminal Procedure should not apply because she filed her
husband or wife who can file the petition for nullity. BP Blg. 22 complaints in 1999. It is now settled that rules of

procedure apply even to cases already pending at the time
of their promulgation. The fact that procedural statutes may
somehow affect the litigants’ _rights does not preclude their
retroactive application to pending actions. It is axiomatic
that the retroactive application of procedural laws does not
violate any right of a person who may feel that he is
adversely affected, nor is it constitutionally objectionable.
The reason for this is that, as a general rule, no vested right
may attach to, nor arise from, procedural laws.
In this case, Cheng filed two cases for estafa and two cases for
BP Blg. 22 and she made no express reservation as to the civil
liability of the accused. Later on you will see that cases which
have the civil liability instituted already within the criminal
liability and you cannot separate both. In this case, Cheng did
not make any express reservation as to the civil liability of the
accused. Now, the estafa cases were dismissed for failure to
prove beyond reasonable doubt and the other estafa cases
have no pronouncement of a civil liability.
The Supreme Court said, this in its nature produced the legal
effect of a reservation by Cheng of her right to litigate the civil
action impliedly instituted with the estafa case.
But what about the BP Blg. 22 cases? Would the effect be the
same? Kasi yung estaffa magkaiba yun sa BP Blg. 22 diba?
The BP Blg. 22 cases were brought in 1999, but the following
year, the revised ROC on criminal procedure took effect in
2000. It was stated that the civil action in BP 22 cases cannot
be reserved separately. Meaning, it cannot be separately filed
from the criminal liability. So the Trial Court said that with the
dismissal of the BP 22 case, the civil liability was dismissed as
well.
So is the ruling correct? The Supreme Court said YES.
Because procedural statutes are one of the EXCEPTIONS under
the general rule of prospective application. Because
procedural statutes do not create vested rights then they can
be given retroactive effect.
As such, when the BP 22 case was dismissed, the dismissal of
the criminal complaint carried with it the dismissal of the civil
complaint.
Cheng’s remedy was then to appeal the dismissal of the civil
complaint.
Next, we have Atienza vs Brilliantes.
Article 4 - Laws with Retroactive Effect
Atienza vs Brillantes, Jr.
-Article 40 is applicable to remarriages entered into after the
effectivity of the Family Code on August 3, 1988, regardless
of the date of the first marriage. Besides, under Article 256
of the Family Code, said Article is given “retroactive effect
insofar as it does not prejudice or impair vested or acquired
rights in accordance with the Civil Code or other laws.” This
is particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested right that
was impaired by the application of Article 40 to his case.
-The fact that procedural statutes may somehow affect the
litigants’ rights may not preclude their retroactive
application to pending actions. The retroactive application
of procedural laws is not violative of any right of a person
who may feel that he is adversely affected. The reason is
that as a general rule no vested right may attach to, nor arise
from procedural laws.
Discussion:
Brillantes married twice, in 1965 and 1991. In 1965, he married
without a required marriage license, which you will later find
out is a requirement for the validity of a marriage. When he
married again in 1991, he believed in good faith that he was
capacitated to marry because he assumed all on his own that
his previous marriage was void. He argues that because his first
marriage was covered by the Civil Code, kasi 1965, the family
code was passed and took effect in 1988. So tama sya, the first
marriage was celebrated during the civil code. The question is,
can Art. 40 of the Family Code applied to him? YES!
The Supreme Court said YES. Because, Article 40 is merely a
rule of procedure and Brilliantes cannot claim that by giving it
retroactive application, his vested rights were prejudiced.
Again, because same with Cheng vs. Sy, PROCEDURAL RULES
do not give rise to vested rights because they do not create
rights. It is substantive law that creates rights. Procedural
rules merely provide guidelines on how you can enforce a
RIGHT. So, Article 40 was given retroactive application and
made to apply to Brilliantes.
Article 4 - Laws with Retroactive Effect
Abalos vs. People
In the case of Hisoler vs. People, the court has ruled that
since the penalty under the RPC is more beneficial to the
accused, thus, it is the proper penalty to be imposed. It
ratiocinated as follows:
● […] The court finds that the benefits that would
accrue to the Petitioner with the imposition of a
lower minimum sentence outweighs the longer
prison sentence and is more in keeping with the
spirit of the Indeterminate Sentence Law.
● […] The basic purpose of the ISL is to “uplift and
redeem valuable human material, and prevent
unnecessary and excessive deprivation of personal
liberty and economic usefulness.” Simply, an
indeterminate sentence is imposed to give the
accused the opportunity to shorten the term of
imprisonment depending upon his or her
demeanor and physical, mental and moral record
as a prisoner…
It is clear therefore that if R.A. No. 10951 would be
given retroactive effect, the same will prejudice
petitioner. The penalty under the RPC, insofar as it
benefits the petitioner must prevail.
Article 4 – aws with Retroactive Effect
Desmoparan vs. People
-However, with the passage of RA 10951, the penalties of
some crimes which are dependent on the value of the
subject matter of the crimes have been greatly affected, and
one of these is estafa. The law being more favorable to the
petitioner, the same is given a retroactive effect. Below is
the comparison of the penalty for estafa under the old
provisions of the Revised Penal code and RA 10951.
-From the given comparisons, both under the Revised Penal
Code and RA 10951, the imposable penalty for estafa is
based on the amount of damage. In this case, the amount
defrauded is Forty Thousand Pesos (P40,000.00),
representing the total amount of money actually released
and Article 315 of the Revised Penal Code, as amended by
RA 10951, is arresto mayor in its medium and meanwhile,
under the old provisions of the Revised Penal Code, the
imposable penalty is prision correccional, in its maximum
period, to prision mayor, in its minimum period, if the
amount of the fraud is over Twelve Thousand Pesos
(P12,000.00). but does not exceed Twenty-Two Thousand
Pesos (P22,000.00). Thus, the penalty for estafa under the
new law should be given retroactive effect, being more
favorable to the petitioner.
-In contrast, for falsification of a commercial document, the
penalty of imprisonment is the same for both Article 172 (1),
in relation to Article 171 (2), of the Revised Penal Code and
RA 10951 which is prision correccional in its medium and
maximum periods, albeit, the imposable fine is different.
Under the Revised Penal Code, the imposable fine is not
more than Five Thousand Pesos (P5,000.00); while under RA
10951, the imposable fine is not more than One Million
Pesos (P1,000,000.00).
We also have the case of Abalos vs. People and the case of
Desmoparan vs. People. Now what these two (2) cases have
in common is that they all looked at
ISSUE: Whether or not R.A. 10951 if given retroactive effect
would benefit the offender.
RULE: In this case, in Abalos vs. People R.A. 10951 would not
benefit Abalos, because if we apply R.A. 10951 Abalos’ penalty
would get bigger. So instead of R.A. 10951, what was applied?
The penalty under the Revised Penal Code (RPC)
Here in Desmoparan, it happened the other way around. With
the passage of R.A. 10951 the penalty that should have been
served by Desmoparan would be reduced. So rather than
apply the Revised Penal Code (RPC), R.A. 10951 or the Good
Conduct Time Allowance Act was made to apply to
Desmoparan RETROACTIVELY.
How would you summarize Article 4?
As a general rule, laws must be given prospective application.
Why?
● To protect rights which have already accrued
● To avoid creating new obligations
● Or attaching new disabilities to past transactions.
What is the EXCEPTION?
When the law itself provides for retroactive application.
What if the law does not explicitly state that it should be given
a retroactive application? You look at the nature of the law. If
for example it is a remedial law or a remedial rule, then you
can give a retroactive effect because vested rights do not arise
from or attached to these rules. Likewise, if it’s a law which
pertains to the accused, benefits the accused, even if it is not
stated be given a retroactive application, the specific
circumstances of the accused must be taken into account first.
Diba, tulad nung Abalos, hindi sya favorable sa accused, then
we do not give the retroactive application of the law. But if
tulad ng Desmoparan, na under the new law, mas favorable
para sa kanya, then we give retroactive application.
Article 5 - Mandatory/Prohibitory Laws
Art. 5. Acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law itself
authorizes their validity.
Discussion:
Article 5 refers to Mandatory or Prohibitory laws in any acts
that are executed in violation of the same. Acts executed
against the provisions of the mandatory or prohibitory laws
shall be void, except when the law itself authorizes their
validity. So, it’s mandatory because you’re obliged to comply
the law. Mandatory/prohibitory laws are mandatory in a sense
that you are obliged to comply. Otherwise, your act will be
void. That is, it is without force and effect.
For example, you agreed to bet in a horse race. It has been
made illegal under our laws, you cannot go to court and ask
the court to enforce your agreement because under our laws,
that agreement is illegal and, thus, void under our mandatory
laws.
Mandatory Provision – in a statute is one, the omission to
follow which, renders the proceedings to which it relates
void, while Directory Provision is one the observance of
which is not necessary to the validity of the proceeding
(Kavanaugh vs. Fash).
Directory means that the Constitution provides a certain
period in time wherein for example yung judges are supposed
to decide cases. If the case is not decided within that time
frame, the decision produced by the judge does not become
void. The decision is still valid, but it is without prejudice to any
administrative liability on the part of the judge.
If you violate a mandatory/prohibitory law, the act becomes
void. But kung directory, it is not necessarily void. Although
this is also without prejudice to any personal liability on the
part of the person who violated the directory law.
Now, what if the contract is voidable? But there are ways to
cure contracts that have to be validated and these are the
four ways:
Article 5 - Four Ways to Validate Acts/Contracts
FOUR (4) WAYS TO VALIDATE ACTS or CONTRACTS:
(1) Expressly validating the contract;
(2) Making the invalidity depend on the will of the injured
party;
(3) By punishing it criminally but validating the act; and
(4) By invalidating the act but recognizing the legal effects of
the invalid act.
Discussion:
(1) Expressly Validating the contract.
Under expressly validating the contract, usually one of the
ways to validate a contract that you originally denied is to
accept the benefits that you would get from the contract.
Example:
Supposedly there is a deed of sale or a contract of sale but it
was against your conscience, you don't want to accept the
money that was supposedly tendered in court for your
property but eventually you realize buti pa mag abroad nalang
ako at dun nalang mamuhay with that the money that will be
given to me, so if you accept the money then that is an express
validation of the contract.
(2) Making the invalidity depends on the will of the
injured party.
This is the second way of validating acts or contracts.
Example:
There is an agreement to marry but the agreement is tainted
with violence or intimidation, in that case the marriage may be
voidable or annullable and the one who can opt to void or
annul the marriage is the innocent party or the victim.
(3) Can punish it criminally but you still validate the act
Example:
Sa family code kasi the judge who solemnizes the marriage
must of course have authority to officiate the marriage. and
sometimes judges officiate marriages outside their territorial
jurisdiction. Bakit? kasi kaibigian or kakilala nila and they were
asked a favor, etc . so in that case even if the judge solemnize
the marriage outside his territorial jurisdiction and technically
talaga dapat wala siyang authority, the marriage is still held to
be valid so long as the parties believed in good faith that the
judge had authority to solemnized the marriage.
(4) To invalidate the act but you recognize the legal
effects of the invalid act
Example:
Children born during a marriage that is subsequently voided
due to psychological incapacity. In that case the act of being
married to someone with psychological incapacity is not
necessarily criminal, but it is an invalid union because there is
no capacity on the part of either of the parties to perform their
marital obligations. So in that case that's an invalid act but
there are legal effects such as, what about the children? So if
a child is born of a marriage that is subsequently voided
because of the psychological incapacity of one of the parties,
we still recognize that a child is a legitimate child of these two
individuals who had their marriage voided. And that’s an
example of recognizing the legal effects of the invalidating act
between parties.
Article 6 - Waiver
ART. 6. 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 a right
recognized by law.
Discussion:
Then you have probably heard of the word waiver before.
Napaka common niyan noh. Quit claim and waiver. Under
Article 6. Rights may be waived, unless the same is contrary to
law, public order, public policy, morals or good customs, or
prejudicial to a third person with a right recognized by law.
Now there are actions which you can bring in court that are
classified according to the relief that you are praying for.
Let’s define what is a RIGHT.
● Right- is a legally enforceable claim of one person
against another, that the other shall do a given
act, or shall not do a given act.
A right is a legally enforceable claim of one person against
another.
So when you say you have a right. It has to be legally
enforceable, meaning it's founded in the law. The law provides
that you can enforce that right as against someone else.
● Perfect vs. Imperfect
CLASSIFICATION:
(1) Perfect vs. Imperfect
· Perfect – fixed in terms of scope and it is clear
as to what can be done and cannot be done
under that right.
· Imperfect –when it is general and ambiguous,
it does not dictate precisely can or cannot be
done
● In personam vs. In rem
So let’s go back to the discussion on remedies. If you want to
enforce a right, typically the action can be an action in
personam or an action in rem.
If it’s an ACTION IN PERSONAM - your right that you want to
enforce is actually being brought against a definite person.
Ex. Inutangan ka. Ano yung right mo? Bayaran ka diba? So if
you file an action for collection of a specific sum of money.
That is an action in personam because you are obligating one
definite person to pay you a certain amount.
On the other hand, a right could also be brought in an ACTION
IN REM. An ACTION IN REM, on the other hand, imposes an
obligation on a definite person or persons in general.
Ex. If you file an action for legitimation (meaning from
illegitimate to a legitimate child) everyone including the
government agencies, Civil Registrar, all people practically
within our jurisdiction and those of course who would consider
themselves filipinos are supposed to recognize that you have
become a legitimate child. Okay? So ganun yung difference
between an action in personam and an action in rem.
Article 6 - Waiver
● Rights as classified under the constitution
○ Natural rights- Those which grow out of
 the nature of man and depend upon
personality, as distinguished from such as
are created by law and depend upon
civilized society, like the right to life.
○ Civil rights- such as belong to every
citizen of the state or country, or in a
wider sense, to all its inhabitants and are
not connected with the organization or
administration of government, like the
right to marry, right to property,
marriage, etc.
○ Political rights- consist in the power to
participate, directly or indirectly, in the
establishment of or administration of
government, such as the right of
citizenship, that of suffrage, the right to
hold public office, and the right of
petition.
Now the classification of rights under the constitution are
natural right, civil rights and political rights. So the definitions
are actually quite straight forward.
Natural rights- they grow out of the nature of man.
Ex. The right to life.
Civil rights- belong to every citizen because they are a civilian
residing in a society. It’s applicable to all inhabitants who are
citizens in a state or country but they are not connected with
the organization or administration of government. So more on
society in general talaga.
Ex. Right to marry, right to property, rights to an
estate etc.
Political Rights- obviously they consist in the power to
participate directly or indirectly in the establishment or the
administration of the government.
Ex. Right to vote or right to hold public office.
Now the question is, what rights can be waived?
So earlier I asked the question, what can you waive? But
before that let’s back track, what is a waiver?
A waiver is the intentional or voluntary relinquishment of
a known right or such conduct as warrants an inference
of relinquishment of such right. A waiver can be
expressed or implied.
Article 6- Waiver
Waiver - waiver is the intentional or voluntary
relinquishment of a known right, or such
conduct as warrants an inference of
relinquishment of such right. Waiver can be
expressed or implied.
Now what are the requisites of a valid waiver?
1. The waiving party must have the right
he is renouncing.
2. He must have the full capacity to make
the waiver.
3. The waiver must be clear and
unequivocal.
4. The waiver must not be contrary to
law. Public order, public policy, morals
or good customs or prejudicial to a
third person with a right recognized by
law.
5. When formalities are required as in
the case of an express condonation of
a debt, the formalities must be
complied with.
Discussion:
So what can you waive? Or what things can be waived?
Or what rights can be waived?
Actually, you can waive everything –all your rights.
However, there are some or very small or very isolated
rights that you cannot waive like the right to life. At least
in our jurisdiction, we cannot waive our right to life.
Although, wala namang kukulong sayo kapag
nagpakamaty ka but for example euthanasia, that is not
a valid act in our jurisdiction. And even though you are
the one executing the waiver, anyone who assists you in
proceeding with euthanasia can be held liable under our
laws. So that’s already a statement that the right to life,
at least, could not be waived in our jurisdiction. So given
that you can waive almost everything there are however
strict requirements that must be followed whenever you
execute a waiver.
And these are what I just read to you. So as to the first
requirement, of course this is obvious because you
know the saying that “you cannot give what you do not
have”. So as to waivers, you also cannot waive what is
not yours. For example, you cannot waive a right to your
inheritance if the person you are supposed to inherit it
from has not yet died. So yung mga nakikita niyo sa
teleserye na “hindi ko mamanahin yan” or yung mga
nagsasabi na “kahit na mamatay ka pa, hindi ko kukunin
yung mana ko sa iyo”. May mga ganoong teleserye pa ba
ngayon? Parang lahat ng teleserye gusto ng may mana
diba? But anyway, in that instance, legally speaking at
least noh, you cannot waive your inheritance yet because
technically an inheritance only comes or rather an
inheritance only manifests once the person you are
supposed to inherit it from has died, under our law.
Second requirement, yung full capacity, meaning under
our law, you must not possess any of the
disqualifications to make you capable of binding
someone with a contract. So it means for example, you
are no longer a minor or apart from your age, you must
not be a civil interdictee. Ano yung civil interdictee? A
civil interdictee is one who is civilly dead. Hindi ano ha,
hindi how would you say this, physically yung na parang
gulay. Civil interdictee meaning you are incapable of
performing almost all acts which are supposed to bind
other individuals. Okay? So if you are a civil interdictee,
ano ba yung mga rights na meron ka? You have the right
to marry, he can execute a marriage settlement because
you are given the right to marry, or you can make
donations. But these donations only become effective
after death. So pag full capacity, meaning we’re talking
about capacity to act and we’ll define what’s capacity to
act more clearly later. But I just want you to remember
this requisite and later on maybe siguro on our third or
fourth week, we can refer back to this, tying it to the
concept of capacity to act. Alright?
Third requisite is that waiver must be clear and
unequivocal. What does that mean? Meaning, it must be
doubtless that the person meant to waive that right. In
your mind there is no question that, that person
intended to waive that right. Whether from his conduct
or whether from his words. Pwede rin from his actions. It
must be clear in either case that he no longer intends to
enforce the right. For example, you try to pay a debt to
someone whom you owe money, and the person to
whom you owe money says “ay wag mo na ako bayaran
okay na yun”. That is already a clear waiver of his right to
collect from you.
Now, the other two requisites are pretty self explanatory
so if you look at the waiver it must not contravene any
law or public order, public policy, morals or good
customs and if a third person has a right which is
recognized by law, that third persons right also cannot
be prejudiced by the waiver. So kahit pa na freedom mo
to waive a particular right the state also controls that
freedom by putting in the limitation of the law, public
order etc etc. So, the waiver cannot not contravene these
principles.
And the waiver must be in the form that is required.
Meaning, kung halimbawa may requirement na
halimbawa notarized siya or may requirement na in
writing siya then the formality must be complied with for
a waiver to be valid.
So let’s go to the cases
Article 6 - Waiver
Famanila vs. Court of Appeals
-Disability is not among the factors that may
vitiate consent (...) save for petitioner’s self-
serving allegations, there is no proof on
record that his consent was vitiated on the
account of his disability. In the absence of
such proof of vitiated consent, the validity of
the Receipt and Release must be upheld
-It is only where there is clear proof that the
waiver was wrangled from an unsuspecting or
gullible person, or the terms of the
settlement are unconscionable on its face,
that the law will step in to annul the
questionable transaction. But where it is
shown that the person making the waiver did
so voluntarily, with full understanding of
what he was doig, and the consideration for
the quitclaim is credible and reasonable, the
transaction must be recognized as a valid and
binding undertaking, as in this case.
Discussion:
In Famanila, you have Famanila who was hired by NLD
International Manning. He (Famanila) suffered an
aneurysm and had to undergo surgery. Now since he
could no longer turn to work as a result of the aneurysm,
NLD International settled with him and formally signed a
waiver. Later on he argues that the waiver is void
because his disability allegedly affected his capacity to
fully give his consent to the waiver. So it goes to the
second requirement.
Now what did the Supreme Court say?
The supreme court said, the language in the receipt and
release was clear and unambiguous. So if you look at the
agreement the receipt and release, it was unambiguous.
It was clear that it acted as a general release of any
liability. So it was a waiver.
to him. A waiver may not be attributed to a
person when its terms do not explicitly and
But the question is, is it valid? Was Famanila’s disability
clearly evince an intent to abandon a right.
sufficient to prevent him from freely agreeing to the
terms offered by NFD International? Meaning, nung
-Parents and guardians may not therefore
pinirmahan nya, was he fully able to comprehend what
repudiate the inheritance of their wards
he signed? Or was he prevented by his disability?
without judicial approval. This is because
repudiation amounts to an alienation of
The supreme court said, generally, when you look at
property16 which must pass the court's scrutiny
disability, it’s not among the factors that will vitiate
in order to protect the interest of the ward. Not
consent. Meaning, it’s not one of the factors that affects,
having been judicially authorized, the Release
adversely, a person’s capacity to give his consent. In this
and Waiver of Claim in the instant case is void
case, aside from Famanila’s assertions that he wasn’t
and will not bar private respondents from
able to fully comprehend his commitment to or his
asserting their rights as heirs of the deceased.
signature on the waiver, then, the supreme court cannot
also rule that the waiver was invalid. Also, while the
-Furthermore, it must be emphasized that
supreme court says that generally, waivers are frowned
waiver is the intentional relinquishment of a
upon especially employee-employer relationships
known right. Where one lacks knowledge of a
because of the power imbalance there–meaning the
right, there is no basis upon which waiver of it
employee is in a lesser position to negotiate with the
can rest. Ignorance of a material fact negates
employer, there’s still a requirement on the part of the
waiver, and waiver cannot be established by a
employee who alleges that the waiver is invalid. It is that,
consent given under a mistake or
it is only where there is clear proof that the waiver was
misapprehension of fact.
wrangled from an unsuspecting or gullible person or the
terms of the settlement are unconscionable, meaning
unfair, that the law will step in to annul the Discussion:
questionable transaction. So this is the threshold. When In Guy vs Court of Appeals, it's a manifestation of how
the supreme court steps in to say, “baka there’s you cannot waive what right you do not have.
something wrong with the waiver.” If, for example, that So, why? What are the circumstances of this case?
the person who signed the waiver isn’t able to read and
write. In that case, how could he have understood the In this case the respondents allegedly are illegitimate
contract or the waiver? Actually itong mga circumstances children of Sima Wei, the known heirs among others
na toh as to what as to what vitiates consent, these are argue that the mother of these illegitimate children has
circumstances that you’ll encounter in obligations and already waived all the rights of the children and claims
contracts. These are more thoroughly discussed there. against the estate of Sima Wei, because the mother
But for now, dito sa Famanila vs Court of Appeals, the executed a waiver and quitclaim in exchange for
Supreme Court upheld the waiver because there was no receiving an educational plan.
showing that the consent of Famanila was vitiated on
account of his disability. So, the question is… Was there a valid waiver?
If you look at the waiver, sabi ng Supreme Court “it
What about in Guy vs Court of Appeals? merely states that Remedios (the mother of the
respondents) received the 300,000 and an educational
Article 6 – Waiver
plan by way of financial assistance and in full settlement
of any and all claims of whatsoever nature and kind.”
Guy v CA
-As regards Remedios' Release and Waiver of
But it did not pertain to any hereditary share in the
Claim, the same does not bar private
estate of Sima Wie. Kumbaga the way that the Court
respondents from claiming successional rights.
construed the waiver was for an existing claim during the
To be valid and effective, a waiver must be
lifetime of Rufino Guy Susim. It did not include the
couched in clear and unequivocal terms which
hereditary shares of the illegitimate children in the
leave no doubt as to the intention of a party to
estate of Sima Wei. And more importantly, apart from
give up a right or benefit which legally pertains
the fact that the waiver must be couched in clear and
unequivocal terms, if you look at the circumstances of
the case, the Supreme Court said… “it must be
emphasized that the waiver is intentional relinquishment
of a known right. Where one lacks knowledge of a right
there is no basis upon which waiver of it can rest.”
So ignorance of a material fact negates waiver, and
waiver cannot be established by a consent given under a
mistake or misapprehension of fact. So ito yung sinasabi
ko na, hindi niya kasi alam that there would be a share
on the estate.
The Supreme Court said, you cannot expect her to have
waived that when si Remedios did not know that the
children would inherit from the estate of Susim
eventually.
And then, as a nail to the coffin, the Supreme Court also
said additionally, guardians do not have the capacity to
repudiate the inheritance of their wards without
judicial approval, although this is not going to the
requisites of a the waiver, but this is an additional
reason why the waiver cannot be construed as a waiver
of the share of the illegitimate children in the estate of
Rufino Guy Susim.
Article 6 – Waiver of Rights
Otamias v Republic
-When Colonel Otamias executed the Deed of
Assignment, he effectively waived his right to
claim that his retirement benefits are exempt
from execution. The right to receive
retirement benefits belongs to Colonel
Otamias. His decision to waive a portion of his
retirement benefits does not infringe on the
right of third persons, but even protects the
right of his family to receive support
-In addition, the Deed of Assignment should be
considered as the law between the parties,
and its provisions should be respected in the
absence of allegations that Colonel Otamias
was coerced or defrauded in executing it. The
general rule is that a contract is the law
between parties and parties are free to
stipulate terms and conditions that are not
contrary to law, morals, good customs, public
order, or public policy.
-The Deed of Assignment executed by Colonel
Otamias was not contrary to law; it was in
accordance with the provisions on support in
the Family Code. Hence, there was no reason
for the AFP PGMC not to recognize its validity.
Discussion:
In Otamias vs. Republic, dito si Otamias executed a Deed
of Assignment whereby he waived half of his salary and
pension benefits, in favor of Edna and their other
children, I’m sorry, and their children.
After a few years, the AFP decided to stop honoring the
agreement and so it stopped issuing checks to Edna and
her children, arguing that Otamias’ pension benefits are
exempt from execution, hence it cannot be compelled to
issue a check in favor of Edna and their children.
So, the question in this case is, can the deed of
assignment be recognized as a valid waiver of the exempt
status granted to Otamias’ pension benefits.
And the Supreme Court said yes. When he executed the
Deed of Assignment he effectively waived his right to
claim that his retirement benefits are exempt from
execution. The right to receive the retirement benefits
belongs to Colonel Otamias and his decision to waive his
retirement benefits does not infringe the right of third
persons but even protect the rights of his family to
support.
Was the deed of assignment contrary to law? The court
said no because it was in accordance with the provisions
on support in the Family Code.
Was it contrary to morals, good customs? The Supreme
Court also said no, because it would help support the
children
Article 7 - Repeal of Laws
Article 7 - Repeal of Laws
ARTICLE 7. 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 declare 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.
Discussion:
The Constitution is the highest law of the land.
Therefore everything must be consistent with or abide
by the Constitution. So between a law that is
inconsistent with the constitution and the constitution,
obviously it’s the constitution that takes precedence
because it is the highest law of the land.
From our reading of Article 7, we know that repeal may
be expressed or implied.
● Repeal may be express or implied.
Express – when a repealing law contains a repeal clause
explicitly stating that a particular existing law or a part of
that law has been repealed.
Ex. Just how the Family Code provides that it will
repeal provisions in the Civil Code.
Implied – when there is no repealing clause in the
subsequent law but the prior law and the subsequent law
are substantially inconsistent that they cannot exist with
each other. Therefore, necessitating the implied repeal.
● The Constitution is the highest law of
the land. Therefore everything must
be consistent with or abide by the
Constitution.
Article 7 - repeal of Laws
Rules on Repeal:
1. Implied repeal is frowned upon.
2. If both laws are of the same category
and they cover the same subject
matter, it is the more recent one that
prevails.
3. If one is a general law, and the other is
a special law
-General law is enacted first, followed
by the special law - special law is
considered an exception
-Special law is enacted first, followed
by the general law -special law
prevails except when there is clear
and irreconcilable conflict between
the two, or the general law clearly
intends to replace the special law.
NOW WHAT ARE THE RULES ON REPEAL?
(1.) Even if we recognize Implied repeal, this is frowned
upon – As much as possible we or the supreme court,
looks for the construction or interpretation of the law
that will allow for both laws to co-exist without one
having to repeal one another. But if we really have to
choose which law should be repealed then the rule is
that,
(2.) If both laws are of the same category and they cover
the same subject matter, it is the more recent one that
prevails.
So for example, you have a law on adoption that was
passed in 1987 and then you have the same law passed
in 2010. So it is the one in 2010 that will prevail provided
that there are inconsistent rules or laws laid down
between the two laws.
(3.)If one is a general law, and the other is a special law
General law is enacted first, followed by the special law.
What if ganon yung circumstance? Then we consider
yung special law as an exception to the general law.
But, what if the special law is enacted first, and then it’s
followed by the general law?
Special law prevails except when there is clear and
irreconcilable conflict between the two, or the general
law clearly intends to replace the special law.
Now typically there is what we call deliberations in
forming the constitution or in passing a law, you have
deliberations and you have minutes that will reveal these
deliberations and our justices used to look into these
deliberations to identify the intent of the lawmakers
when they pass a particular law. So there is a subject
called Statutory Construction dati, and basically what
was discussed in that subject is how do we interpret laws
because there are in fact rules how to do it. It is not a free
for all.
So there is that practice whenever looking at the law or
the intent of the lawmakers is revealed in the
deliberations, senate hearings or in the hearings of the
house of representatives.
Now if there is also a repeal, there is also in rare cases, a
revival.
RULES ON REVIVAL
Article 7-Repeal of Laws
Article 7. Rules on Revival:
General Rule: In case of implied repeal, there
is revival and in case of express repeal, there is
no revival.
Exception: If the contrary is provided.
Revival is when a law that was previously repealed comes
back, or becomes effective once more. The general rule is
when it comes to revival, and the repeal is implied then
there is a revival of the former law that was repealed.
What about in express repeal? In express repeal there is
no revival. Walang revival because the express repealed
was already provided for in the subsequent law. Clearly,
there is an intent to never have the former law see the
light of day. So that’s the difference.
Sa implied repeal kasi there is an ambiguity as to the
intentions of the subsequent law. But in express repeal
there is clarity as to the repeal of the previous law. Sa
implied repeal may revival sa express repeal walang
revival.
EXCEPTION: Even if sa express repeal it is explicitly stated
that the particular law will be repealed BUT at the same
time the repealing law can also provide with steps if the
repealing law disappears or is abrogated or is declared
null and void then the previous law which existed shall
be revived.
So, in express repeal, there can be a provision in the
repealing law that the formal law will be revived in case
the repealing law becomes null and void.
So eto yung laws that we discussed.
If a first law is repealed impliedly by a second
law, and the second law is repealed by the
third law (whether express or implied), the
first law is revived. UNLESS the third law states
that the first law shall not be revived.
If a first law is repealed expressly by a second
law, and the second law is repealed by the
third law (whether express or implied, the first
law is not revived. UNLESS the third law states
that the first law shall be revived.
Repealed by the third law (whether express or implied),
the first law is not revived. UNLESS the third law states
that the first law shall be revived. You have to read it in
order to understand fully what we’re talking about in
terms of revival.
Article 8- Judicial Decision
Article 8. Judicial decisions applying or
interpreting the laws or the Constitution shall
form a part of the legal system of the
Philippines.
● Judicial decisions are not laws, but
they have the force and effect of laws
as they assume the same authority as
the statutes themselves.
● The Supreme Court’s interpretation of
a statute constitutes part of the laws
as of the date it was originally
enacted, since the Court’s
construction merely establishes
contemporaneous legislative intent
that the interpreted law purports to
effectuate.
So Judicial decisions are not laws, but like I said earlier
they have the force and effect of laws as they assume the
same authority as the statutes themselves. Our case law
is so ingrained in our laws that they have the force and
effect of our laws as equal with the authority of the
statutes themselves.
Now to be clear, Article 8 refers only to the Supreme
Court. It does not refer to the Court of Appeals, The
Regional Trial Court, The MTCC, MCTC.
The judicial decisions referred to in Article 8 only refer to
those decided by the Supreme Court.
Now, why is it that the Supreme Courts interpretation of
a statute is considered part of the law of the land?
● That’s because the interpretation supposedly
should not be new. Like I said earlier, the
Supreme Court has a tendency to go back to the
intention of the authors of the law. So, it's
presumed that that intention was carried into
the law.
So, that’s why the interpretation of the Supreme Court
becomes part of the law of the land.
So, there are a few more concepts that we need to
discuss under Article 8
Article 8 - Judicial Decisions
Stare decisis (et no quieta moevere)
● (stand by the thing and do not disturb
the calm)
● Refers to the principle of adherence
to precedents for reasons in the
stability of law
● Could be vertical or horizontal
● Vertical- lower courts are expected to
follow the precedents laid down by
the SC before them
● Horizontal- the Sc is expected to
follow its own precedents because
they established the precedents so
they should abide by their own
precedent.
It means that when the Supreme Court ruled on a
particular case, and the lower courts are confronted
with another case of similar factual circumstances; the
same legal question or issue, even if the parties were
different, the lower courts must apply the ruling of the
Supreme Court for purposes of judicial stability.
Ex. In cases of psychological incapacity, (which we will
encounter in the coverage of our 2nd exam under the
family code) the courts are obviously expected to
adhere to the guideline set by the Molina v Republic
because the SC has consistently decided the nullity of
marriages due to psychological incapacity using the
Molina Guidelines. Lower courts should not invent new
guidelines because the SC has already established what
guidelines to follow through Molina vs. Republic.
● Res judicata
- (a matter already adjudged)
- Refers to the rule that a final judgment or
decree on the merits by a court of competent
jurisdiction is conclusive of the rights of the
parties or their privies in all later suits on all
points and matters determined in the former
suit.
Now, what is Res judicata? Res judicata refers to a
matter already adjudged. It applies to specific tier of
parties, who have already gone to court and had
matters settled between them. Once all the legal issues
have already been thrashed out in the case between
the parties, they can no longer go again to court for the
very same matters. Why? Because a final judgment or
decree has already been ordered by the court. So ano
yun, magpapachange ka, magpapamodify ka ng
judgment just because hindi mo gusto. Of course, hindi
pwede yun kaya tayo may Res judicata.
Abandonment of a principle /rule of law/doctrine
established by the SC must be based only on strong and
compelling reasons and it can only be done by SC en
banc.
- Admin offenses within an elected official are
deemed forgiven when the public decide to re-elect
him/her for another term.
Now, I want you to take note of the Abandonment of
the Aguinaldo Doctrine. This is actually a concept, or
rather a Doctrine that will be discussed in your public
administration. But, meron kasi yung Aguinaldo
Doctrine, wherein admin offenses of an elected official
are deemed forgiven when the public decides to re-
elect him/her for another term.
In the case of Junjun Binay. The SC finally abandoned
this Aguinaldo doctrine.
Bakit, ano ba ang ginawa ni Junjun Binay? Naalala nyo
ba yung infamous parking lot nga sa Makati na
overpriced. Sabi ng SC, this is already to stop the abuse
of the condonation doctrine. In just one and a half
years, over a 100 cases of alleged misconduct were
placed beyond the reach of the ombudsman’s
investigatory and prosecutorial powers because of it.
Which more or less, means that countless cases of
abuse that went uninvestigated because of the
Aguinaldo Doctrine.

Abandonment of a principle / rule of law/
doctrine established by the SC must be based
only on strong and compelling reasons.
Why is this relevant?
This is relevant because what they want to point out is
that an abandonment of a principle or rule of law or
doctrine established by the SC must be based only on
strong and compelling reasons. What’s more, if they
decide to abandon a doctrine, then the SC must be
sitting en banc.
What is an obiter dictum? Naencounter nyo na ba ito?
Obiter dictum
● an opinion expressed by the court
upon some question of law which is
not necessary to the decision of the
case before it.
● Remark made incidentally or
collaterally, and not directly upon the
question before him or upon a point
not necessarily involved in the
determination of the cause.
kumbaga, it’s a valuable discussion but it does not
belong to the pleading. That’s why it was made only
incidentally or collaterally.
Article 9 - Duty to Render Judgment
Article 9. No judge or court shall decline to
render judgment by reason of the silence,
obscurity or insufficiency of the laws.
- Courts are not expected to legislate,
but at the same time they should not
hesitate to rule on a legal matter on
account of the law’s seeming
insufficiency.
- The judge must see to it that the
decision is just equitable, and not
contrary to law, public order, public
policy, morals and good customs. The
judge may use customs, general
principles, decision of foreign courts,
opinions of known authors and
professors, applicable rules of
statutory construction, to decide the
matter.
Discussion:
Article 9 is the duty to render judgment. No judge or
court shall decline to render judgment by reason of the
silence, obscurity, or insufficiency of the law.
Kung ikaw yung judge, kahit na ayaw na ayaw mo yung
kaso, kasi sabihin nating hate mo yung complainant
pero alam mong kawawa talaga yung complainant. So
sabihin mo, “ay di na lang ako mag ju-judge.
Magcompromise nalang kaya sila” or something like
that. Ultimately, compromise failed tapos sabi mo “ay,
ayokong magrule jan”. Why? So there has to be an
exceptionally valid reason because Article 9 is clear:
Courts are not expected to legislate, but at the same
time they should not hesitate to rule on a legal matter
on account of the law’s seeming insufficiency.
These are some factors that courts must take into
consideration; customs, general principles, decisions of
foreign courts and etc. point is if you're a judge or
become a judge in the future, do not decline to render
judgment because under Article 9 of the Civil Code it is
prohibited.
One thing however I would like to point out or remind
you of is that this particular provision does not apply
when the law is clear or in criminal cases because of the
doctrine “nullum crimen nullum poena sine lege ''.
Make sure to remember the limitations of article 9.
Article 9 - Duty to Render Judgment
Silverio v. Court of Appeals
-It is true that Article 9 of the Civil Code
mandates that “No judge or court shall decline
to render judgment by reason of the silence,
obscurity or insufficiency of the law.”
However, it is not a license for courts to
engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to
make or amend it.
-In our system of government, it is for the
legislature, should it choose to do so, to
determine what guidelines should govern the
recognition of the effects of sex reassignment.
 The need for legislative guidelines becomes
particularly important in this case when the
claims asserted are statute-based.
Discussion:
Under this Article, we have the case of Silverio v. Court
of Appeals, if you remember, Silverio petitioned to
change his first name and sex as appearing on the birth
certificate, and the judgement granted this out of mercy
on Silverio, he said “on account of justice and equity”
He allowed Silverio to go ahead and file a petition but if
you look at the governing law RA 9048 of the Civil Code,
they do not allow for these changes on the ground of
sex reassignment surgery
So the Supreme Court set aside the decision of the Trial
Court saying that “It is true that Article 9 of the Civil
Code mandates that “No judge or court shall decline to
render judgment by reason of the silence, obscurity or
insufficiency of the law.” However, it is not a license for
courts to engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to make or
amend it.
That's the ruling on Silverio v. Court of Appeals
I think madadaanan nyo pa ulit to sya kasi sa pagka-
alala ko this case also comes up in, sa rule to change
name. I think lalabas yan sa 4th exam coverage natin.
Art. 10. In case of doubt in the interpretation
or application of laws, it is presumed that the
lawmaking body intended right and justice to
prevail.
● Applies only when the law is doubtful
or obscure
● If a law can be construed in two ways,
that construction which will achieve
the ends desired by the Congress
should be adopted.
● One of the fundamental principles in
statutory construction: A law should
be interpreted not by the letter that
killeth but the spirit that giveth life.
Discussion:
Art. 10 pertains to presumptions and this one is of
course important because in case of doubt in the
interpretation or application of laws it is presumed that
the lawmaking body intended right and justice to
prevail. So article 10 just like how article 9 does not
apply when the law is clear. Article 10 also has that
limitation so article 10 only applies when the law is
doubtful or obscure. If a law can be construed in two
ways, that construction which will achieve the ends
desired by Congress should be adopted. Now, one of
the fundamental principles in statutory construction is
that a law should be interpreted not by the letter that
killeth but by the spirit that giveth life. So I think this
maxim is pretty familiar to you noh and clear, I hope.
Articles 11 & 12 pertain to customs.
Art. 11. Customs which are contrary to law,
public order, public policy shall not be
countenanced.
Art. 12. A custom must be proven as a fact,
according to the rules of evidence.
Now, customs of course are important, there's no
question that they're important because they
sometimes can pave the way for the establishment of a
law. And the custom then becomes the key to
understanding why a certain law exists. So of course, if
the custom is contrary to law, public order, public
policy, it will not be accepted or recognized and of
course the custom, if you're alleging that you
committed a certain act as a custom then must prove it
as a fact according to the rules of evidence. So meaning
the courts do not take judicial notice of customs.
Customs can sometimes pave the way for the
establishment of a law. The custom then becomes the
key to understanding why a certain law exists.
If a custom is contrary to law, public order, public policy,
it will not be accepted or recognized. If you are alleging
that you committed a certain act as a custom, you must
prove it as a fact.
Courts do not take judicial notice of customs.
Example: Because of how Filipinos are raised, some of
and the same is brought to it again for
the members in congress are proposing to
recognition.
penalize/sanction children who do not provide support
-So meaning may nagfile ng ganitong case at
to their aging parents. If you look at the proposal, it
may sinabi siyang, “uy ganito naman yung
comes from the custom of Filipinos to live with their
customs sa amin”. Tapos eventually siguro
parents or help them out if they are sick.
mga two months later may nagfile nanaman
ng ganong case –So yung same circumstances
If you look at our culture, these are our customs. But at
and same customs allegedly. Can the trial
the same time, not all customs can be judicially
court recognize the 2nd terms and take judicial
recognized by the court and not all customs are
notice of it? That depends pa but he(court) has
allowable under our Law.
the liberty to do it being he(court) is already
made aware of these stipulations made.

CUSTOM
Rule of conduct formed by repetition of acts,
uniformly observed (practiced) as a social rule,
legally binding and obligatory.
- Customs do not prevail over laws,
nor when they are against public
order or policy.
Kahit na may custom kang gustong ipaglaban, if the law
finds that it is contrary to law, then the law shall prevail.
REQUISITES TO MAKE A CUSTOM AN
OBLIGATORY RULE:
(1) Plurality of acts or the acts have
been repeatedly done
- Maraming gumagawa at pauli ulit
siya.
(2) It is generally practiced by the
great mass of the social group
(3) The practice has been going on for
a long period of time
(4) The community accepts it as a
Discussion:
proper way of acting, such that it
Ang haba noh? Ang importante you look at “universal
is considered obligatory upon all
juridical standards dictated by correct reason”, okay?
Article 11 and 12 - Customs
● General Principles of Law
-The general principles of law consists of the
“universal juridical standards dictated by
correct reason; those principles of justice
beyond the variability and uncertainty of
facts, those high standards which serve as a
foundation to positive law, those rules
accepted by jurisconsults which constitute
real axioms for all those who intervene in
juridical life, and which from a law superior to
that which is enacted (2 Sanchez Roman, 102)
● In our written jurisdiction, the law is
necessarily supreme to the general
principles of law. Unwritten rules
anchored on man’s sense of justice
and equity cannot stand superior to
the written law which is equally
anchored on the legislator’s sense of
justice and equity.

Now in our jurisdiction in the Philippines, the law is

GENERAL RULE: Customs must be proven as a
naturally supreme with regards to general principles of
fact
law.
-No court will go and call, “if jan ba sa brgy
niyo ganito ang customs?”. You have to prove
So we have the case of Anaban v. Anaban-Alfiler
it as the person alleging that the custom exists.
Article 11 and 12 - Customs
EXCEPTION: When the same court has
previously taken judicial notice of a custom Anaban vs. Anaban-Alfiler
 So our law, which prevents divorce, takes precedence
-The issue of whether divorce based on
over customs. So even if sobrang tagal nang ginagawa ni
customs and practices can be legally
Anaban yung pagpapakasal and pag-divorce under their
recognized during the effectivity of Act No.
customs, the divorce will never be recognized by our
2710 has been resolved by the Court as early
country.
as 1933 in People v. Bitdu.31 The Court held
that Mora Bitdu's divorce from Moro Halid in
accordance with the Mohammedan customs
cannot be recognized. For divorce cannot be
had except in that court upon which the state
has conferred jurisdiction, and then only for
those causes and with those formalities which
the state has, by statute, prescribed.

-As the trial court in Bitdu held, the laws

governing marriage and its incidents are moral
in nature and as such they are laws relating to
public policy. The habits and customs of a
people, the dogmas and doctrines of a religion
cannot be superior to or have precedence over
laws relating to public policy, because as
stated above laws relating to marriage and its
incidents are normal in nature and as such
they affect public policy. This holds true even
up to this time.

There is a question of whether since divorce is a custom

that the complainants have been used to, then will that
affect or rather will the divorce that was based on those
customs be legally recognized by our laws. So in short,
nagpakasal sila based on custom, they'll also divorce
based on custom.

Can that be allowed in our country?

And in this case, the Supreme Court said NO, “for

divorce cannot be had except in that court upon which
the state had conferred jurisdiction, and then only for
those causes and with those formalities which the state
has by statute prescribed.” So, in the case, “as the trial
court in Bitdu held, the laws governing and its incidents
are moral in nature and as such they are laws relating to
public policy”.

Now if our laws do not allow for divorce, say, someone

who is involved in the same law–sa customs na pwedeng
mag divorce– if there is someone who gets married by
custom, and then in that custom may divorce. Sa
national law natin, sa civil code natin, sa family code
natin, meron bang allowance on divorce? WALA.