2013 civGN.pdf

CIVIL LAW

2013

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The UST GOLDEN NOTES is the annual student-edited bar review material of the University of Santo Tomas, Faculty of Civil Law. Communications regarding the NOTES should be addressed to the Academics Committee of the Team: Bar-Ops.

ADDRESS:

TEL. NO.:

Academics Committee Faculty of Civil Law University of Santo Tomas España, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the Pontifical and Royal University of Santo Tomas, the Catholic University of the Philippines.

2013 Edition

No portion of this material may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devises or in any other form, for distribution or sale, without a written permission. A copy of this material without the corresponding code either proceeds from an illegal source or is in possession of one who has no authority to dispose the same.

No. 01

Printed in the Philippines, April 2013.

Academics Committee Team Bar-Ops Faculty of Civil Law University of Santo Tomas España, Manila 1008 (02) 731-4027

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--‐S

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AURICIO

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For being our guideposts in understanding the intricate

sphere of Civil Law.

DISCLAIMER

THE RISK OF USE, MISUSE OR

NON-USE OF THIS BAR REVIEW MATERIAL

SHALL BE BORNE BY THE USER/

NON-USER.

EFFECT AND APPLICATION OF LAWS

Q: What is a law?

A: In its jural and concrete sense, law means a rule of

conduct formulated and made obligatory by legitimate power of the state (Diaz, Statutory Construction, p. 1).

Q: When did the Civil Code take effect? A: August 30, 1950

Q: When do laws take effect?

A: GR: Laws take effect after 15 days following the

completion of their publication in the Official Gazette or newspaper of general circulation in the Philippines.

XPN: unless it is otherwise provided by the law. (Art. 2) Note: If the law provided a specific date for its effectivity, it

becomes effective only upon the lapse of said period following its complete publication and not before.

Q. How is the 15-day period computed?

A: The 15-day period may either be on the 15th day or on

the 16th day depending on the language used by Congress in fixing the effectivity date of the statute. (Rabuya, p. 8)

15th Day - If the law declares that it shall become

effective “15 days after its publication”

16th Day - If the law declares that it shall be effective

“after 15 days following its publication”

Q: What is meant by the phrase “unless it is otherwise provided” in the provision on effectivity of laws?

A: The clause "unless it is otherwise provided" refers to the

date of effectivity and not to the requirement of publication itself, which cannot, in any event be omitted. This clause does not mean that the legislator may make the law effective immediately upon approval, or on any other date without its previous publication.

Note: Publication is indispensable in every case, but the legislature

may in its discretion provide that the usual fifteen-day period shall be shortened or extended (Umali v. Estanislao, G.R. No. 104037,

May 29, 1992, [citing Tañada v. Tuvera, G.R. No. L-63915, December29, 1986]).

Q: When will the law take effect if it is made to take effect “immediately” or “upon approval?

A: It shall take effect immediately after publication. The

15-day period after publication is dispensed with but publication is not. In cases wherein the law states that it shall be effective upon approval, it likewise becomes effective only after its complete publication and not immediately after its signing by the President.

Q: Are all laws required to be published? A: GR: Yes. Publication is indispensable.

XPNs:

1. Municipal Ordinances (governed by the Local Government Code)

2. Rules and regulations which are internal in nature.

3. Letters of Instruction issued by administrative supervisors on internal rules and guidelines. 4. Interpretative regulations regulating only the

personnel of administrative agency.

XPNs to the XPNs: Administrative rules and regulations

that require publication:

1. The purpose of which is to implement or enforce existing laws pursuant to a valid delegation; 2. Penal in Nature;

3. It diminishes existing rights of certain individuals

Note: If the law is not published, it shall not be effective.

Non-publication is a violation of due process.

Q: Honasan questions the authority and jurisdiction of the DOJ panel of prosecutors to conduct a preliminary investigation and to eventually file charges against him, claiming that since he is a senator with a salary grade of 31, it is the Office of the Ombudsman, not the DOJ, which has authority and jurisdiction to conduct the preliminary investigation. DOJ claims that it has concurrent jurisdiction, invoking an OMB-DOJ Joint Circular which outlines the authority and responsibilities among prosecutors of the DOJ and the Office of the Ombudsman in the conduct of preliminary investigations. Honasan counters that said circular is ineffective as it was never published. Is OMB-DOJ Circular No. 95-001 ineffective because it was not published?

A: No. OMB-DOJ Circular No. 95-001 is merely an internal

circular between the two offices which outlines the authority and responsibilities among prosecutors of the DOJ and of the Office of the Ombudsman in the conduct of preliminary investigations. It does not contain any penal provision nor prescribe a mandatory act or prohibit any under pain of penalty. Further, it does not regulate the conduct of persons or the public, in general. As such therefore, it need not be published (Honasan, II v. The

Panel of Investigating Prosecutors of the Department of Justice, G.R. No. 159747, Jun. 15, 2004).

Q: What must be published in order to comply with the publication requirement?

A: Publication must be in full or it is no publication at all

since its purpose is to inform the public of the contents of the law. The mere mention of the number of the presidential decree, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial

compliance (Tañada v. Tuvera, G.R. No. L-63915,

December29, 1986).

Q: Publication must be made in the Official Gazette or in a newspaper of general circulation. What is a newspaper of general circulation?

A:

1. It is published within the court’s jurisdiction

2. Published at regular intervals for disseminating local news and general information.

3. It has a bona fide subscription list of paying subscribers 4. It is not devoted to the interest or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination (Alvarez v.

people, G.R. No. 192591, June 29, 2011).

Q: A Local Budget Circular 55 issued by the DBM which reduced the monthly allowance given by Local Governments to RTC and MTC judges was questioned in this case. Petitioner judges filed a protest against the notices. Is the circular valid?

A: LBC 55 is void on account of its lack of publication.

Administrative rules and regulations must be published if their purpose is to enforce or implement existing law pursuant to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of an administrative agency and the public need not be published. Neither is publication required of the so called LOIs issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties (Judge

Dadole v. COA, G.R. No. 125350, December 3, 2002).

Q: The Sangguniang Bayan of Hagonoy Bulacan enacted an ordinance which increased the stall rentals of the market vendors in Hagonoy. Art. 3 of the said ordinance provided that it shall take effect upon approval. The ordinance was posted from November 4 to 25, 1996. In the last week of November 1997, petitioners were personally given copies and were informed that it shall be enforced on January 1998. The petitioners contended that the subject ordinance was not posted as required by law. Did the ordinance comply with the rule of publication?

A: An ordinance which increased the stall rentals of the

market vendors has complied with the publication requirement when the same was posted in 3 conspicuous places since there was no newspaper of local circulation in the municipality which is in accordance with Sec. 188 of the LGC (Hagonoy v. Municipality, G.R. No. 137621 February 6,

2002).

Q: CIR issued a Memorandum Order 15-91 imposing a 5% lending investor’s tax on pawnshops. The BIR issued an assessment against Lhuillier demanding payment of deficiency tax. Lhuillier contended that the said memo is a new and additional tax measure on pawnshops which Congress should enact. Is the said memorandum valid even without publication?

A: An interpretative rule is designed to provide guidelines

to the law which the administrative agency is in charge of enforcing xxx Whether an administrative rule is merely interpretative in nature, its applicability needs nothing further than its bare issuance for it gives no real consequence more than what the law itself has already prescribed. When the administrative agency goes beyond merely providing for the means that can facilitate or render least cumbersome the implementation of the law but substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and thereafter to be duly informed.

The said orders cannot be viewed simply as implementing rules or directive measures revoking in the process previous rulings of past commissioners xxx The due observance of the requirements of publication should not have been ignored (CIR v. Lhuillier G.R No. 150947, 15 July 2003).

IGNORANCE OF THE LAW

Q: What is the presumption of knowledge of laws? A: GR: Everyone is conclusively presumed to know the law.

Hence, ignorance of the law excuses no one from compliance therewith (Art. 3).

XPNs:

a. Mistake upon a doubtful or difficult question of law may be the basis of good faith. [Art. 526 (3)] b. Art. 2155

c. Art. 1344

Q: Differentiate mistake of law from mistake of fact. A:

MISTAKE OF FACT MISTAKE OF LAW

Want of knowledge of some fact or facts constituting or relating to the subject matter in hand.

Want of knowledge or acquaintance with the laws

of the land insofar as they apply to the act, relation,

duty, or matter under consideration. When some facts which

really exist are unknown or some fact is supposed to exist which really does not

exist.

Occurs when a person having full knowledge of the

facts come to an erroneous conclusion as to its legal

effects Good faith is an excuse Not excusable, even if in

good faith

Note: Ignorance of a foreign law is a mistake of fact

Q: Eduardo was married to Ruby. He then met Tina and proposed marriage, assuring her that he was single. They got married and lived together. Tina, upon learning that Eduardo had been previously married, charged Eduardo for bigamy for which he was convicted.

Eduardo testified that he declared he was “single” because he believed in good faith that his first wife was

already dead, having not heard from her for 20 years, and that he did not know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Is Eduardo liable for the crime of bigamy?

A: Yes. Eduardo is presumed to have acted with malice or

evil intent when he married Tina. As a general rule, mistake of fact or good faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. It was the burden of Eduardo to prove that when he married Tina, he was of the well-grounded belief that his first wife was already dead. He should have adduced in evidence a decision of a competent court declaring the presumptive death of his first wife as required by Art. 349 of the RPC, in relation to Art. 41 of the FC. Such judicial declaration constitutes proof that Eduardo acted in good faith, and would negate criminal intent on his part when he married the private complainant (Manuel v. People, G.R.

No. 165842, November 29, 2005).

Q: Complainants who were connected with the Daily Informer (a widely circulated newspaper in Western Visayas) were charged before the MTC by Judge Pamonag of the crime of libel. Respondent judge conducted a preliminary investigation and thereafter issued warrants for the arrest of the complainants. Complainants filed an administrative case against the judge for gross ignorance of the law. They contended that the judge neither has authority to conduct a preliminary investigation nor to issue warrants for their arrest. The judge said that it was his first libel case and that he issued the warrants in good faith. Is the respondent guilty of gross ignorance of the law?

A: Judges are expected more than just cursory

acquaintance with statutes and procedural rules. They must know the law and apply them properly in good faith. The provisions of Art. 360 of the RPC on the persons authorized to conduct preliminary investigation in libel cases is so elementary. Not to know it constitutes gross ignorance of the law (Miaque v. Judge Pamonag, A.M. No. MTJ-02-1412.

March 28, 2003).

Q: Cheong Boo, a native of China died intestate in Zamboanga. He left a property worth P100,000. The estate of the deceased was claimed on one hand by Gee, who alleged that he was a legitimate child by a marriage contracted by Boo with Tan Dit in China in 1895. The estate was claimed, on the other hand, by Mora Adong who alleged that she had been lawfully married to Boo in 1896. Gee introduced in evidence a document in Chinese stating the marriage ceremony that took place in Amoy, China. Is the document presented by Gee recognized here in the Philippines?

A: Ignorance of a foreign law is not ignorance of the law but

of fact because such foreign law must be first alleged and proved as a matter of fact, there being no judicial notice of said foreign law. The Chinese marriage was not adequately

proved (Estate of Boo v. Gee, G.R. No. 18081, March 3,

1922).

Note: Processual Presumption – if the foreign law is not properly

alleged and proved, the presumption is that it is the same as our own law (Estate of Suntay v. Suntay, G.R. No. 132524. December

29, 1998).

RETROACTIVITY OF LAWS

Q: Do laws have retroactive effect?

A: GR: Laws shall have no retroactive effect. (lex prospicit,

non respicit)

XPNs: TIN CREEP

1. Tax laws

2. Interpretative statutes

3. Laws creating New Substantive Rights 4. Curative Statutes

5. Remedial/procedural 6. Emergency Laws 7. When Expressly provided

8. Penal laws favorable to the accused provided,

accused is not a habitual criminal

XPNs to the XPNs: Constitutional limits where

retroactivity would result to: IE

1. Impairment of obligation of contracts 2. Ex Post Facto Laws

Note: In case of doubt, laws apply prospectively.

Q: May judicial decisions be given retroactive effect? A: No. When a doctrine of the Supreme Court is overruled

and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereon. (Rabuya, p. 10)

Q: Does the Family Code contain a retroactivity clause?

A: Yes. Art. 256 of the FC provides that the Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the NCC or other laws.

MANDATORY OR PROHIBITORY LAWS

Q: What is the status of acts which are contrary to law? A: GR: Acts executed against the provisions of mandatory

or prohibitory laws are void. (Art. 5)

XPNs: Where the law:

1. Makes the act valid but punishes the violator, e.g. Marriage solemnized by a person not authorized to do so;

2. Itself authorizes its validity; 3. Makes the act merely voidable;

4. Declares the nullity of an act but recognizes its effects as legally existing, e.g. Child born after the annulment of marriage is considered legitimate.

WAIVER OF RIGHTS

Q: What is a right?

A: It 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. (Pineda, Persons, p. 23)

Q: What are the kinds of rights? Distinguish. A:

1. Natural Rights – Those which grow out of the nature of man and depend upon personality. e.g. right to life, liberty, privacy, and good reputation

2. Political Rights – Consist in the power to participate, directly or indirectly, in the establishment or administration of government. e.g. right of suffrage, right to hold public office, right of petition

3. Civil Rights– Those that pertain to a person by virtue of his citizenship in a state or community. e.g. property rights, marriage, equal protection of laws, freedom of contract, trial by jury (Pineda, Persons, p. 24)

a. Rights of personality or human rights; b. Family rights; and

c. Patrimonial rights: i. Real rights

ii. Personal rights. (Rabuya, p. 19)

Q: May rights be waived? A: GR: Yes.

XPNs:

1. If waiver is:

a. Contrary to law, public order, public policy, morals or good customs.

b. Prejudicial to a third person with a right recognized by law.

2. If the right is:

a. A natural right, such as right to life. b. Inchoate, such as future inheritance.

Q: What are the elements of waiver of rights? A: EKI

1. Must be an Existing right

2. The one waiving such right must have Knowledge of evidence thereof

3. Intention to relinquish said right (Valderamma v.

Macalde, G.R. No. 165005, September 16,2005).

Q: What are the requisites of a valid waiver? A: AFCUNF

1. Waiving party must Actually have the right he is renouncing.

2. He must have Full capacity to make the waiver 3. Waiver must be Clear and Unequivocal

4. Waiver must Not be contrary to law, public order, public morals, etc.

5. When Formalities are required, they must be complied with.

Q: What are some instances where waiver is considered void?

A: Waiver is considered void in such instances as: (i) waiver

of future support; (ii) waiver of political rights; (iii) waiver of future inheritance especially if the waiver is intended to prejudice creditors.

REPEAL OF LAWS

Q: What are the kinds of repeal? Distinguish. A: Repeal may be:

1. EXPRESS - if the law expressly provides for such 2. IMPLIED – if the provisions of the subsequent law

are incompatible or inconsistent with those of the previous law, PROVIDED, it is impossible to reconcile the two laws.

Q: What are the two accepted instances of implied repeal? A:

1. When the provisions in the two acts on the same subject matter are irreconcilably contradictory, in which case, the later act, to the extent of the conflict, constitutes an implied repeal of earlier one; and 2. When the later act covers the whole subject of the

earlier one and is clearly intended as a substitute; thus it will operate to repeal the earlier law (Carmelita

Lledo v. Atty. Cesar V. Lledo, A.M. No. P-95-1167, February 9, 2010).

Q: What is the rule on repeal of repealing laws?

A: It depends upon how the old law is repealed by the

repealing law:

1. If the old law is expressly repealed and repealing law is repealed: the Old law is not revived

2. If the old law is impliedly repealed and repealing law is repealed: the Old law is revived.

JUDICIAL DECISIONS

Q: Are judicial decisions considered laws in this jurisdiction?

A: No. However, decisions of the Supreme Court, although

in themselves not laws, are nevertheless evidence of what the laws mean.

Q: When do judicial decisions form part of the law of the land?

A: As of the date of the enactment of said law. This is so

because the Supreme Court’s interpretation merely establishes the contemporaneous legislative intent that the construed law purports to carry into effect.

Note: When a doctrine is overruled and a different view is

adopted, the new doctrine should be applied prospectively and should not prejudice parties who relied on the old doctrine.

Q: What is the Doctrine of Stare Decisis?

A: It is adherence to judicial precedents. Once a question of

law has been examined and decided, it should be deemed settled and closed to further argument.

Note: This doctrine however is not inflexible, so that when in the

light of changing conditions, a rule has ceased to be beneficial to the society, courts may depart from it.

DUTY TO RENDER JUDGMENT

Q: Can the Court decline to render judgment by reason of silence of the law?

A: No. No judge or court shall decline to render judgment

by reason of the silence, obscurity or insufficiency of the law (Art. 9).

Note: However, this duty 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.

PRESUMPTION AND APPLICABILITY OF CUSTOM

Q: What is the presumption in case there is doubt in the interpretation or application of laws?

A: It is presumed that the lawmaking body intended right

and justice to prevail (Art. 10).

Q: What are customs?

A: These are rules of conduct, legally binding and

obligatory, formed by repetition of acts uniformly observed as a social rule.

Q: How are customs proved?

A: GR: Must be proved as a fact, according to the rules on

evidence. (Art. 12)

XPN: Courts may take judicial notice of a custom if

there is already a decision rendered by the same court recognizing the custom.

Q: What are the requisites to make a custom an obligatory rule?

A: P-TOP

1. Plurality or Repetition of acts 2. Practiced for a long period of Time

3. The community accepts it as a proper way of acting, such that it is considered Obligatory upon all.

4. Practiced by the great mass of the social group.

Q: May courts apply customs in deciding cases? A:

1. In civil cases, customs may be applied by the courts in cases where the applicable law is: SOI

a. Silent b. Obscure c. Insufficient

Note: Provided said customs are not contrary to law, public

morals, etc.

2. In criminal cases, customs cannot be applied because nullum crimen nulla poena sine lege (There is neither crime nor punishment, without a law).

Q: In case of silence, obscurity or insufficiency of the law with respect to a particular controversy, what rules shall be applied? (1961, 1971, 1977 Bar Question)

A: If the law is silent, or is obscure or insufficient with

respect to a particular controversy, the judge shall apply the custom of the place, and in default thereof, the general principles of law and justice.

Q: What should first be established before such custom could be considered a source of right?

A: The custom must be proved as a fact, according to the

rules of evidence (Art. 12, NCC). This fact, however, should possess the following requisites: (1) plurality of acts, (2) uniformity of acts, (3) general practice by the great mass of the people of the country or community; (4) continued practice for a long period of time; (5) general conviction that the practice is the proper rule of conduct; and (6) conformity with law, morals or public policy (1 Tolentino.

Civil Code, p. 39; 1 Manresa 82).

LEGAL PERIODS

Q: How do you compute the periods?

A: Year – 12 calendar months (CIR v. Primetown Property Group, Inc., 531 SCRA 436))

Month – 30 days, unless designated by their name, in

which case, they shall be computed according to the number of days which they respectively have.

Day – 24 hours

Night time – from sunset to sunrise

Week – 7 successive days regardless of which day it

would start

Calendar week – Sunday to Saturday

Q: What is the manner of computing a period?

A: The first day shall be excluded, and the last day included. Q: In a case of violation of the Copyright law filed against her, Soccoro countered by saying that since the crime was found out on September 3, 1963, while the information was filed on September 3, 1965, the crime had already prescribed, since 1964 was a leap year. Has the crime prescribed?

A: Yes. With the approval of the NCC we have reverted to

the provisions of the Spanish Civil Code in accordance with which a month is to be considered as the regular 30-month and not the solar or civil month with the particularity that, whereas the Spanish Civil Code merely mentioned 'months, days or nights,' ours has added thereto the term 'years' and explicitly ordains in Art. 13 that it shall be understood that years are of three hundred sixty-five days (People v. Ramos

GR L-25265, May 9, 1978, Ramos v. Ramos GR L-25644, May 9, 1978).

However, when the year in question is a leap year, the 365 day rule is not followed because February 28 and 29 of a leap year should be counted as separate days in computing periods of prescription (NAMARCO v. Tuazon, GR No

L-29131, August 27, 1969).

Q: What is the rule if the last day falls on a Sunday or a legal holiday?

A: It depends. If the act to be performed within the period

is:

1. Prescribed or allowed by: ROO a. the Rules of Court b. an Order of the court; or c. any Other applicable statute

The last day will automatically be the next working day.

2. Arises from a contractual relationship – the act will still become due despite the fact that the last day falls on a Sunday or a legal holiday.

CONFLICT OF LAWS

Q: When, where and upon whom do the following laws apply?

A:

1. PENAL LAWS

GR: TERRITORIALITY RULE - Penal laws and laws of

public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory (Art. 14)

XPNs: Treaty stipulations, Principle of Public

International, Laws of Preferential Application.

e.g. Ambassadors, Ministers, International agencies enjoying diplomatic immunity

Note: Consul is not entitled to the privileges and

immunities of ambassadors or ministers. 2. STATUS LAWS

GR: NATIONALITY RULE - Laws relating to

a. Family rights and duties b. Status and condition

c. Legal capacity of persons are binding upon citizens of the Philippines even though living abroad (Art. 15)

XPNs:

a. In case of divorce obtained validly by an alien pursuant to the rules that governs his country, the Filipino spouse shall be considered also as divorced (Van Dorn v.

Romillo, Jr., 139 SCRA 139, 1985).

b. Domiciliary rule applies to stateless persons Note: the basis for determining the personal law of an individual is either the Domiciliary Rule (Domicile) or Nationality Rule (Citizenship) 3. REAL STATUTES – Laws on Property

GR: Lex Rei Sitae – Real property as well as personal property is subject to the law of the country where it is situated. (Art. 16)

XPNS:

a. Succession as to order of succession, amount of successional rights and intrinsic validity of the testamentary provisions - governed by national law (in Philippines) not lex situs

b. Contracts involving real property but do not deal with title or real rights over the property, the issue being the contractual rights and liabilities of parties - governed by the proper law of the contract (lex loci

voluntatis or lex loci intentionis)

c. In contracts where real property is given as security by way of mortgage to secure a principle contract (i.e. loan) - loan is governed by the proper law of the contract while the mortgage is governed by the lex

situs

d. While the validity of the transfer of land must be determined by the lex situs, the validity of the contract to transfer is determined by the proper law of the contract

4. Law governing extrinsic validity of contracts, wills and public instruments.

GR: Lex loci celebrationis (Art. 17) – forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed

XPNs: Philippine law shall apply in the following cases even though performed abroad:

a. Acts are executed before the diplomatic or consular officials of the Philippines.

b. Prohibitory laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs. (Art. 17)

Q: The second clause of the will of Joseph, a Turkish citizen and a resident of the Philippines, states that:

xxx, it is my wish that the distribution of my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine Islands, requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request.

Is the clause above-quoted valid?

A: No, it is void. The second clause of the will regarding the

law which shall govern it and the condition imposed, is null and void, being contrary to law. Article 792 of the Civil Code provides that “Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.” Said clause is contrary to law because it expressly ignores the testator's national law when, according to Art. 16 of the NCC, such national law of the testator is the one to govern his testamentary dispositions. Said condition then is considered unwritten, hence the institution of legatees is unconditional and consequently valid and effective.

Q: What law governs the validity of wills? A:

1. Intrinsic validity of wills - The NCC applies the lex

nationalii of the decedent

2. Extrinsic validity of wills - The NCC applies the law of the place in which they are executed

a.) When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines (Article 815).

XPN: Joint wills executed by Filipinos in a foreign

country shall not be valid in the Philippines even though authorized by the laws of the country where they have been executed (Art. 819, NCC).

b.) The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes (Article 816).

c.) A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (Art. 817)

3. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person (Article 818).

Note: Wills, prohibited by the preceding article, executed by

Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed (Art. 819).

4. Capacity to succeed is governed by the law of the nation of the decedent (Article 1039).

Q: What law governs the revocation of wills? A:

1. Under Art. 829 of the NCC, a revocation done outside the Philippines by a person who does not have his domicile here is valid if done according to:

(a) The law of the place where the will was made (lex

loci celebrationis) or

(b) The law of his domicil at the time of revocation (lex

domicilii)

Note: It ignores the law of the place of revocation

2. If the revocation is done in the Philippines, it is valid if made in accordance with the provisions of the Civil Code 3. If the revocation is done outside the Philippines by a person who is domiciled in the Philippines, it is valid if made in accordance with the law of the Philippines (lex domicilii) or lex loci actus of the revocation (the place where the revocation was made)

Q: Explain the following doctrines: A:

1. Renvoi Doctrine (“referring back”) – Renvoi takes place when the conflicts rule of the forum makes a reference to a foreign law, but the foreign law is found to contain a conflict rule that returns or refers the matter back to the law of the forum (Remission).

2. Transmission theory – Provides that when the conflicts rule of the forum makes a reference to a foreign law, but the foreign law is found to contain a conflict rule that refers it to a third country, the law of the third country shall apply.

3. Doctrine of Processual Presumption – The foreign law, whenever applicable, should be proved by the proponent thereof, otherwise, such law shall be presumed to be exactly the same as the law of the forum.

4. Doctrine of Operative Facts – Acts done pursuant to a law which was subsequently declared unconstitutional remain valid, but not when the acts are done after the declaration of unconstitutionality.

Q: Edward is a citizen of California domiciled in the Philippines. After he executed his will, he went back to America and stayed there. During the post mortem

probate of the will, Helen, his illegitimate natural child, opposed it on the ground of preterition. She claims that under Art. 16 par. 2 of the Civil Code, in case of succession, the national law of the deceased - the civil code of California - should govern., which provides that if a Californian not domiciled in California dies, the law of his domicile must govern. Lucy, on the otherhand, counters that under the same provision, the national law of the deceased should apply. Which law should be applied – Philippine law or Californian Law?

A: Philippine Law should be applied. Where the testator

(Edward) was a citizen of California, and domiciled in the Philippines, the amount of successional rights should be governed by his national law, that is, Californian law. However, the conflict of law rules of California provides that in cases of citizens who are residents of another country, the law of the country of domicile should apply, hence, Philippine law on legitimes should be applied. This is so because California law itself refers the case back to the Philippines. The Philippine court has no other alternative but to accept the referring back, for to do otherwise, might result again in its referring back to the Philippines, which would give rise to a sort of an “international football”

(Aznar v. Garcia, G.R. No.L-16749. January 31, 1963).

Q: What is the effect of laws, judgments promulgated or conventions agreed upon in a foreign country on Philippine laws?

A: As regards prohibitive laws:

GR: Prohibitive laws concerning persons, their acts, or

property and laws which have for their object public order, public policy or good customs are not rendered ineffective by laws, judgments promulgated or conventions agreed upon in foreign country.

XPN: Art 26, par. 2 of the Family Code (FC), on mixed

marriages where the foreigner obtained a divorce decree abroad and was thereby capacitated to remarry.

Note: In this case, even though divorce is not recognized in the

Philippines as a mode of terminating marriage, still the marriage is terminated by virtue of a judgment of divorce and issuance of a divorce decree by a foreign court.

Q: What law governs the validity of marriage in case of mixed marriages?

A:

Marriage between a Filipino and foreigner ABROAD

If the marriage is valid under the law of one of the spouses while void under the law of the other, the validity of the marriage should be upheld, unless the marriage is universally incestuous or highly immoral (the same rule as to foreigners who get married abroad)

Marriage between a Filipino and a foreigner in the PHILIPPINES

The national law of the Filipino – Philippine law should be followed – otherwise the country’s public policy would be violated

Q: What law governs the personal relations of the spouses?

A: GR: The personal relations of the spouses are governed

by the national law of the husband

Alien woman who marries a Filipino husband

Ipso facto becomes a

Filipino citizen if she does not suffer under any disqualification for naturalization as a Filipino citizen

Personal relations: national

law of the husband shall govern (GR)

A Filipina who marries an alien husband

Constitution provides that she “shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under our law, to have renounced her citizenship”

Personal relations: Art. 80

of the Family Code provides that the national law of the wife or Philippine law would govern the spouses’ personal relations (rule was intended to protect the Filipino wife)

Q: What if the spouses change nationalities, what law will govern?

A:

1. If the spouses have the same nationality but they acquire a new nationality by their common act – their new national law will govern their personal relations

2. If the husband alone changes his nationality after the marriage – the law of the last common nationality of the spouses would govern

3. If the spouses retain their different nationalities after the marriage – National law of both spouses should govern

Q: What are the rules in determining the domicile of a person?

A:

If the child is legitimate His domicile of origin is that of his parents at the time of his birth

If parents are separated, the domicile of the custodial parent

If the child is illegitimate His domicile of origin is that of the mother at the time of his birth

If the child is legitimated The domicile of his father at the time of his birth controls

If the child is adopted The domicile of origin is the domicile of his real parents at the time of his birth, NOT the domicile of the adopters

If a foundling The domicile of origin is the country where it was found

RULES DETERMINING ONE’S CONSTRUCTIVE DOMICILE MINORS

1. If legitimate, the domicile of both parents

In case of disagreement, that of the father, unless there is a judicial order to the contrary

2. If illegitimate, the domicile of the mother

3. In case of absence or death of either parent, the domicile of the present parent.

Even in case of remarriage of the surviving parent, still his/her domicile determines the constructive domicile of the minor child

4. If the child is adopted, the domicile of choice of the adopter is the child’s constructive domicile

INSANES, IDIOTS, IMBECILES

The law assigns their domicile to them:

1. If they are below the age of majority, the rules on minors apply to them

2. If they are of age and have guardians, they follow the domicile of choice of their guardians

3. If they are of age and have no guardians, their constructive domicile is their domicile of choice before they became insane

MARRIED WOMEN

If the marriage is valid

1. The constructive domicile of the wife is the domicile of both spouses, unless the law allows the wife to have a separate domicile for valid and compelling reasons 2. If there is legal separation between the

spouses, the wife can have her own domicile of choice 3. If there is a separation de facto, the wife can also have a separate domicile

If the marriage is voidable Apply the same rules when the marriage is valid. However, after annulment, the wife can freely select her own domicile of choice

If the marriage is void The wife can have a domicile separate from the husband

OTHER PERSONS

Convict or prisoner His domicile is the one he had possessed prior to his incarceration

Soldiers Their domicile is their domicile before their enlistment

Public officials or employees abroad (diplomats, etc)

Their domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence

Q: What law governs the validity of contracts? A:

Extrinsic validity Capacity of parties Intrinsic validity

Barter, sale, donation Lex situs Lex situs Lex situs

Lease of property: creates real rights

Lex situs Lex situs Lex situs

Lease of property: does not create real rights

Lex loci celebrationis Personal law of the parties

Lex voluntatis or lex loci intentionis

Pledge, chattel mortgage, real estate mortgage, antichresis

Lex situs Lex situs Lex situs

Contract of loan: mutuum Lex loci celebrationis Personal law of the

parties

Lex loci voluntatis or lex loci intentionis

Contract of loan:

commodatum

Lex situs Lex situs Lex situs

Lease of service, agency, guaranty, suretyship Note: Agency to alienate

or encumber real property is governed by lex situs

Lex loci celebrationis Personal law of parties Lex loci voluntatis or lex loci intentionis

Contract of

transportation or carriage (render services)

Lex loci celebrationis Personal law of the parties

Lex loci voluntatis

Liability for loss, destruction, deterioration of goods in transit: law of destination of goods (Art. 1753, NCC)

If COGSA applies, limitation on liability applies, unless the shipper declares value of goods and inserts such declaration in the bill of lading

Contract for air transportation (Warsaw Convention)

1. The liability of the airline in case of death, injury to passengers, or loss or damage to cargo is governed by Warsaw Convention

2. If there was malice, gross negligence, or bad faith, or improper discrimination, carrier is liable for damages beyond those limited by Warsaw Convention

HUMAN RELATIONS

Q: What is the principle of abuse of rights?

A: A right, though by itself legal because recognized or

granted by law as such, may become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Art. 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible.

Q: What are the elements of abuse of rights? A:

1. There is a legal right or duty; 2. Such duty is exercised in bad faith;

3. It is for the sole intent of prejudicing or injuring another.

Q: What is the principle of Damnum Absque Injuria? A: Under this principle which literally means damage

without injury, one who merely exercises one’s rights does

no actionable injury and cannot be held liable for damages. This is premised on the valid exercise of a right (Amonoy v.

Guitierrez, 351 SCRA 731, 2001).

Note: Injury is the illegal invasion of a legal right; damage is

the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. There can be damage without injury in those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone

(Panteleon v. American Express, G.R. No. 174269, August

25, 2010).

Q: Is there civil liability for moral negligence?

A: None. A person is required to act with prudence towards

others, but not with charity; the law imposes diligence and not altruism. Hence, the failure to make sacrifices or egoism does not constitute a source of liability. (Tolentino,

p. 69)

Illustration: A person who fails to render assistance to

a drowning person or to the victim of an accident, cannot be held liable for damages (3 Colin & Capitant

826).

Note: Every person who, contrary to law, wilfully or negligently

causes damage to another, shall indemnify the latter for the same.

(Art. 20, NCC)

Q: What are the elements of an action under Art. 21 of the NCC?

A: LCI

1. There is an act which is Legal;

2. Such act is Contrary to morals, good customs, public order or policy;

3. It is done with Intent to injure.

Q: How is Art. 21 related to Art. 19?

A: While Art. 19 lays down the rule of conduct for the

government of human relations, it does not provide a remedy. Generally, an action for damages under either Art. 20 or Art. 21 would be proper. Art. 21 deals with acts contra bonus mores or contrary to good morals and presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation. Under Arts. 19 and 21, the act must be intentional. (Rabuya, 2006)

Note: Art. 21 fills countless gaps in the statutes, which leave so

many victims of moral wrongs helpless, even though they suffered material and moral damages. (Tolentino, p. 70)

Q: Is breach of promise to marry an actionable wrong? A: GR: No. A breach of promise to marry per se is not an

actionable wrong. There is no provision in the NCC authorizing an action for breach of promise to marry.

XPN: When the act is not a mere breach of promise to

marry but constitutes one where damages pursuant to Art. 21 of the NCC may be recovered, such as:

1. Where the woman is a victim of moral seduction

(Gashem Shookat Baksh v. CA, G.R. No. 97336, February 19, 1993).

2. Where one formally sets a wedding and go through and spend for all the preparations and publicity, only to walk out of it when the matrimony was about to be solemnized

(Wassmer v. Velez, G.R. No. L-20089, December 26, 1964).

Q: Maria met Ayatollah, an Iranian medical student, at the restaurant where she worked. A few days after, Ayatollah courted and proposed to marry Maria. The latter accepted his love on the condition that they would get married. When the couple visited Maria's parents, Ayatollah was allowed to sleep with Maria during the few days of their stay. The couple continued to live together in an apartment, but Ayatollah's attitude towards Maria changed. He maltreated her and when Maria became pregnant, Ayatollah gave her medicine to abort the fetus. Despite the abuses, Maria continued to live with Ayatollah and kept reminding him of his promise to marry her. However, Ayatollah told her that he could not do so because he was already married to a girl in Bacolod City. Maria left and filed a complaint for damages against Ayatollah for the alleged violation of their agreement to get married. May damages be recovered for a breach of promise to marry on the basis of Art. 21 of the NCC? A: Yes. A breach of promise to marry per se is not an

actionable wrong. But where a man's promise to marry is the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that the promise was only a deceptive device to inveigle her to obtain her consent to the sexual act, could justify the award of damages pursuant to Art. 21, not because of such promise to marry but because of the fraud and deceit

behind it and the willful injury to her honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a manner contrary to morals, good customs or public policy. In the instant case, Ayatollah's fraudulent and deceptive protestations of love for and promise to marry Maria that made her surrender her virtue and womanhood to him and to live with him on the honest and sincere belief that he would keep said promise. In short, Maria surrendered her virginity, the cherished possession of every single Filipina, not because of lust but because of moral seduction

(Gashem Shookat Baksh v. CA, G.R. No. 97336, February 19, 1993).

Q: Soledad a high school teacher used to go around together with Francisco who was almost ten (10) years younger than her. Eventually, intimacy developed between them after Soledad became an underwriter in Cebu. One evening, they had sexual intercourse in Francisco's cabin on board M/V Escaño, to which he was then attached as apprentice pilot. After a few months, Soledad advised Francisco that she was pregnant, whereupon he promised to marry her. Later their child was born. However, subsequently, Francisco married another woman. Soledad filed a complaint for moral damages for alleged breach of promise to marry. May moral damages be recovered for breach of promise to marry?

A: No. It is the clear and manifest intent of our law making

body not to sanction actions for breach of promise to marry. Moreover, Francisco is not morally guilty of seduction, not only because he is approximately 10 years younger than the complainant — who around 36 years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be — when she became intimate with him, than a mere apprentice pilot, but, also, because, the court of first instance found that, complainant "surrendered herself" to Francisco because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their engagement even before they had the benefit of clergy (Hermosisima v.

CA, G.R. No. L-14628, September 30, 1960).

Note: To constitute seduction there must be some

sufficient promise or inducement and the woman must yield because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual desire, there is no seduction.

Q: What is accion in rem verso?

A: It is an action for recovery of what has been paid or

delivered without just cause or legal ground. Under Art. 22 of the NCC, if a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obligation to return the same.

Q: What are the requisites of accion in rem verso? A:

1. The defendant has been enriched; 2. The plaintiff has suffered a loss;

3. The enrichment of the defendant is without just or legal ground; and

4. The plaintiff has no other action based on contract, quasi-contract, crime or quasi-delict.

Q: How is accion in rem verso different from solutio

debiti?

A: Mistake is an essential element in solutio indebiti. In

accion in rem verso, it is not necessary that there should

have been mistake in the payment (Rabuya, 2006).

Q: Can there be liability without fault or negligence? A: Yes. The NCC recognizes liability without fault or

negligence, even when the event producing loss to others may be accidental or fortuitous, so long as another person is benefited through such event or act. (Art. 23, NCC)