Civil Law Review REVIEW Notes, Cases and Commentaries on Persons and Family Relations Part I PHILIPPINE CIVIL

LAW INTRODUCTION Tolentino, CIVIL CODE OF THE PHILIPPINES, Commentaries and Jurisprudence, Vol. 1 (hereinafter Tolentino): Concepts of Law.-- The term law may be understood in 2 concepts: (1) in the general or abstract sense, and (2) in the specific or material sense. In the general sense, law is defined as the "science of moral rules, founded on the rational nature of man, w/c govern his free activity, for the realization of the individual and social ends, of a nature both demandable and reciprocal." (Sanchez Roman.) In the specific sense, it is defined as "a rule of conduct, just, obligatory, promulgated by legitimate authority, and of common observance and benefit." (ibid.) Foundation of Law.-- Law rests upon the concepts of order, co-existence, and liberty. Characteristics of Law.-- (1) it is a rule of human conduct; (2) promulgated by competent authority; (3) obligatory; and (4) of general observance. General Divisions of Law.-- Law in its most comprehensive sense has been divided into 2 general groups: divine law and human law. By divine law is meant that in w/c God himself is the legislator who has promulgated the law; by human law is meant that w/c is promulgated by man to regulate human relations. Human law is in turn divided into 2 main classes: general or public law and individual or private law. These in turn are sub-divided as follows: I. General or public law: (a) International law; (b) Constitutional law; (c) Administrative law; (d) Criminal law; (e) Religious law. II. Individual or private law: (a) Civil law; (b) Mercantile law; (c) Procedural law. Kinds of Specific Law.-- Law, in the specific sense, is generally classified into mandatory, prohibitory, and permissive. In one sense, every law commands, bec. it is obligatory; but it commands in 3 different ways: (1) it commands that something be done, in w/c case it is mandatory; (2) it commands that something should not

be done, in w/c case it is prohibitory; and (3) it commands that what it permits to be done should be tolerated or respected, in w/c case it is permissive. Codification of Laws.-- A code is a collection of laws of the same kind; a body of legal provisions referring to a particular branch of law. Reasons for codification: (1) the necessity of simplifying and arranging the many juridical rules scattered in several laws and customs; (2) the necessity of unifying various legislations in the same country; and (3) the necessity of introducing reforms occasioned by social changes. Prof. Ruben Balane (hereinafter Balane): According to the Code Commission, 25% of the articles in the NCC are exact reproductions of the Spanish Civil Code (OCC); 32% were modified or amended. These comprised 57% of the Code on Persons, ObliCon, Property and Succession. Forty-three per cent (43%) are new. These deal w/ Special Contracts, Quieting of title, Trusts, Prescription and some parts in Torts. The accuracy of these figures are doutful. There are two great models of a modern civil code, the French Civil Code (Code Napoleon) and the German Civil Code {BGB or Buogeoliches Gesetzbuch [Beuo w/c means "town," "that w/c has reference to a citizen;" buch w/c means "book;" BGB means "a lawbook governing citizens."] Changes from the Old Civil Code in the New Civil Code: 1. Creation of new rights.-- E.g., in the case of spurious children who were given rights for the first time (successional right, right of support, etc.) New provisions on Human Relations (Articles 33-36), Reformation of Instruments (Art. 1359), two additional quasi-contracts (Art. 2174 and 2175), moral and nominal damages (Arts. 2217 and 2221) 2. Adoption of new solutions like Art. 461 (change in the river course), Art. 1256 (consignation), Art. 1658 (lease.) 3. Clarification of old provisions like Art. 275 (Legitimation), Art. 992 (illegitimate children's right to inherit ab intestato), Art. 1410 (void contracts) 4. Omission of certain subjects, e.g., dowry w/c is very western. In the Phils., we have the opposite of dowry, the bigay-kaya. These contracts were abolished- censos, usus and habitation (subsumed in easement and lease.) Is the New Civil Code better than the Old?-- Yes. As a whole. An example of an improvement in the NCC is in defective contracts. The NCC classifies them into

rescissible, voidable, unenforceable and void. Defects in the New Civil Code.-- There is defect in the basic structure, e.g., in modes of acquiring ownership. Six are given a separate title except Tradition w/c is found in the provisions on Sales. Another defect is on the vice of consent found in the title of Contracts. It should have been in the preliminary title bec. the same is also applicable to marriage, wills-- all juridical transactions. The same is also true w/ respect to the provisions on degrees of relationship. Why limit it to succession. It should be placed in the preliminary title. Other defects are the treatment of donation as an 'act' instead of a 'contract,' w/c is what is really is; defect in judicious borrowings. Definition of Civil Law.-- Civil law has been defined as "the mass of precepts w/c determine and regulate the relations of assistance, authority and obedience among the members of a family, and those w/c exist among members of a society for the protection of private interests." (Sanchez Roman.)

Balane: The Civil Code took effect on August 30, 1950 according to the case of Lara v. del Rosario, one year after its publication, reckoned from the date of actual release BAVIERA CASE: UMALI V. ESTANISLAO [209 S 446 (1992)] - Reiterating Tanada v. Tuvera, 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. Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen (15) day period shall be shortened or extended. BALANE CASES: PESIGAN V. ANGELES [129 S 174] - F: Anselmo and Marcelo Pesigan, carabao dealers, transported in an Isuzu 10-wheeler truck in the evening of 4/2/82 26 carabaos and a calf from Sipocot, Camarines Sur w/ P. Garcia, Batangas as destination. Inspite of the permit to transport and the health certificate and 3 other

Art. 1. This Act shall be known as the "Civil Code of the Philippines." Tolentino: Civil Code defined.-- A civil code is a collection of laws w/c regulate the private relations of the members of civil society, determining their respective rights and obligations, w/ reference to persons, things, and civil acts. Sources of the Civil Code: (1) The Civil Code of 1889; (2) The codes, laws, and judicial decisions, as well as the works of jurists of other countries, such as Spain, the various states of the American Union, etc.; (3) Doctrines laid down by the SC of the Phils.; (4) Filipino customs and traditions; (5) Philippine statutes, such as the Marriage Law, the Divorce Law, the Code of Civ. Proc. and the Rules of Court. (6) The Code Commission itself (7) Works of jurists and commentators of various nations (added by Jurado, CIVIL LAW REVIEWER.) Art. 2. Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. (as amended by EO 200.)

certificates of inspection, the carabaos, while passing at Basud, Camarines Norte, were confiscated by the town's police station commander and the provincial veterinarian. The confiscation was based on EO 626-A w/c provided for the confiscation and forfeiture by the government of carabaos transported from one province to another. The Pesigans filed against the two officials an action for replevin for the recovery of carabaos. The case was dismissed for lack of cause of action. Hence, this appeal under R 45 of the ROC. HELD: We hold that said EO should not be enforced against the Pesigans on 4/2/82 bec it is a penal regulation (the confiscation and forfeiture provision or sanction makes EO 626-A a penal statute) published more than 2 mos. later in the OG dated 6/14/82. It became effective only 15 days thereafter as provided in Art. 2, NCC and Sec. 11 of the Revised Admin. Code. The word "laws" in Art. 2 includes circulars and regulations w/c prescribe penalties. Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on the persons affected thereby. PEOPLE V. VERIDIANO II [132 s 523] - F: Private resp. Benito Go Bio, Jr. was charged w/ violation of BP 22. Before he could be arraigned, Go Bio, Jr. filed a Motion to Quash the information on the ground that the info. did

not charge an offense, pointing out that at the time of the alleged commission of the offense, w/c was about the 2nd week of May '79 (date of issue of the check), BP 22 has not yet taken effect. The prosecution opposed the motion contending, among others, that the date of the dishonor of the check, 9/26/79, is the date of the commission of the offense. Resolving the motion, the court granted the same and held that BP 22 cannot be given a retroactive effect to apply to the case. Hence, this petition for review on certiorari, petitioner submitting for review respondent Judge's dismissal of the criminal case. HELD: When private resp. Go Bio, Jr. committed the act complained of in May '79 (at the time he issued the check-- the law penalizes the act of making or drawing and issuance of a bouncing check and not only the fact of its dishonor), there was no law penalizing such act. Following the special provision of BP 22, it became effective only on 6/29/79. The copy editor of the OG made a certification that the penal statute in question was made public only on 6/14/79 and not on the printed date 4/9/79. Differently stated, 6/14/79 was the date of publication of BP 22. Before the public may be bound by its contents especially its penal provisions, the law must be published and the people officially informed of its contents. For, it a statute had not been published before its viol., then, in the eyes of the law, there was no such law to be violated and, consequently the accused could not have committed the alleged crime. The effectivity clause of BP 22 states that "This Act shall take effect 15 days after publication in the OG." The term "publication" in such clause should be given the ordinary accepted meaning, i.e., to make known to the people in general. If the legislature had intended to make the printed date of issue of the OG as the point of reference, then it could have so stated in the special effectivity provision of BP 22. TANADA V. TUVERA [136 S 27] - F: Invoking the people's right to be informed on matters of public concern, a right recognized in the Constitution, as well as the principle that laws to be valid and enforceable must be published in the OG or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the OG of various PDs, LOIs, general orders, proclamations, EOs, letters of implementation and administrative orders. Respondents contend, among others that publication in the OG is not a

sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the OG is indispensable for their effectivity. The point stressed is anchored on Art. 2 of NCC. HELD: The interpretation given by respondent is in accord w/ this Court's construction of said article. In a long line of decisions, this Court has ruled that publication in the OG is necessary in those cases where the legislation itself does not provide for its effectivity date-- for then the date of publication is material for determining its date of effectivity, w/c is the 15th day following its publication-- but not when the law itself provides for the date when it goes into effect. Respondent's argument, however, is logically correct only insofar as it equates the effectivity of laws w/ the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Art. 2 does not preclude the requirement of publication in the OG, even if the law itself provides for the date of its effectivity. xxx The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. The clear object of the law is to give the general public adequate notice of the various laws w/c are to regulate their actions and conduct as citizens. W/o 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 w/c he had no notice whatsoever, not even a constructive one. It is needless to say that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. (unassigned case) TANADA V. TUVERA [146 S 446] - xxx [T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, w/o its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual 15day period shall be shortened or extended. It is not correct to say that under the disputed clause publication may be dispensed w/ altogether. The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. Conclusive presumption of knowledge of the law.-- The conclusive presumption that every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all. The term laws should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. RULE: All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, w/c shall begin 15 days after publication unless a different effectivity date is fixed by the legislature. Coverage.-- Covered by this rule are PDs and EOs promulgated by the Pres. in the exercise of legislative powers. Administrative rules and regulations must also 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, i.e., regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the socalled letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties. 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 laws. The mere mention of the number of the PD, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the OG cannot satisfy the publication requirement. This is not even substantial compliance. Balane: General application of the provision: The law takes effect on the 16th day. To recapitulate the cases: General rule: It must be published either in the OG or in a newspaper of gen. circ. Exception: The law itself may provide for a different mode of publication, either as to form (published in some

other way provided it is a reasonable mode of publication) or effectivity date (a reasonable period from publication; cannot be immediately upon approval). This is so bec. Art. 2 is only a law. The requirement of publication applies to all laws. Publication in the OG is not an absolute requirement (J. Feliciano, concurring in Tanada v. Tuvera, Motion for Reconsideration.) Rationale.-- The rationale for requiring publication is to give notice to the public in determining their actions so as to conform to the law. "How can I follow something the existence of which I do not know?" Q: Is a law granting citizenship required to be published? A: SC: Yes. Said the high court: "The term laws should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of Pres. Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to the people. The subject of such law is a matter of public interest w/c any member of the body politic may question in the political forums, or, if he is a proper party, even in the courts of justice. In fact, a law w/o any bearing on the public would be invalid as an intrusion of privacy or a class legislation or as an ultra vires act of the legislature." (Tanada v. Tuvera, 146 S 446, 453.) Balane: I disagree w/ the SC. That portion of the decision of the SC in Tanada is only an obiter. Art. 3. Ignorance of the law excuses no one from compliance therewith. Tolentino: Reasons for Presumption of Knowledge of Law.-- (1) If laws will not be binding until they are actually known, then social life will be impossible, bec. most laws cannot be enforced due to their being unknown to many; (2) it is absurd to absolve those who do not know the law and increase the obligations of those who know it; (3) it is almost impossible to prove the contrary, when a person claims ignorance of the law; (4) in our conscience, we carry norms of right and wrong, and a sense of duty, so that our reason indicates many times what we have to do; and in more complicated juridical relations, there are lawyers who should be consulted.

What Laws Covered.-- Philippine laws are covered. There is no conclusive presumption of knowledge of foreign laws. Even our courts cannot take judicial notice of them. Ignorance of a foreign law will not be a mistake of law but a mistake of fact. And with respect to local laws, the article is limited to mandatory and prohibitory laws. It does not include those w/c are merely permissive. (Manresa.) No Exceptions Admitted.-- The rule is based on public interest and is designed precisely to avoid abuse through allegation that the law has not come to the knowledge of a party. But it has been held by our CA that the rule should not be applied w/ equal force to minors who, due to their lack of intelligence, must be treated differently. (Peo. v. Navarro, 51 OG 4062.) Mistake of Fact.-- Ignorance may either be of law or of fact. Ignorance of fact (ignorantia facti) may excuse a party from the legal consequences of his conduct; but not ignorance of law, for ignorantia juris neminem excusat. Difficult Question of Law.-- In specific instances provided by law, mistake as to difficult legal questions has been given the same effect as a mistake of fact, e.g., Art. 526, par. 3 which provides: "Mistake upon a doubtful or difficult question lf law may be the basis of good faith." Balane: Art. 3 creates a conclusive presumption w/c in some instances may be unreasonable or harsh. But the alternative is worse, w/c is anarchy. Bec. the law realizes its severity, it is sometimes mitigated as in the following provisions Art. 526, par. 3, quoted above. Art. 1334. Mutual error as to the legal effect of an agreement when the real purpose of the parties is frustrated, may vitiate consent. Art. 2155. Payment by reason of a mistake in the construction or application of a diffiicult question of law may come within the scope of the preceding article. Art. 2154. If something is received when there is no right to demand it and it was unduly delivered through mistake, the obligation to return it arises. BALANE CASE: KASILAG V. RODRIGUEZ [ 69 P 217] - F: Responds, Rafaela Rodriguez, et al., children and heirs of the deceased Emiliana Ambrosio, commenced a civil case to recover from the petitioner the possession of the land and its improvements granted by way of homestead to Emiliana Ambrosio (EA). The parties entered into a contract of mortgage of the improvements on the land acquired as homestead to

secure the payment of the indebtedness for P1,000 plus interest. In clause V, the parties stipulated that EA was to pay, w/in 4 1/2 yrs, the debt w/ interest thereon, in w/c event the mortgage would not have any effect; in clause VI, the parties agreed that the tax on the land and its improvements, during the existence of the mortgage, should be paid by the owner of the land; in clause VII, it was covenanted that w/in 30 days from the date of the contract, the owner of the land would file a motion in the CFI of Bataan asking that cert. of title no. 325 be cancelled and that in lieu thereof another be issued under the provisions of RA 496; in clause VIII the parties agreed that should EA fail to redeem the mortgage w/in the stipulated period of 4 1/2 yrs, she would execute an absolute deed of sale of the land in favor of the mortgagee, the petitioner, for the same amount of the loan including unpaid interest; and in clause IX it was stipulated that in case the motion to be presented under clause VII should be disapproved by the CFI-Bataan, the contract of sale of sale would automatically become void and the mortgage would subsist in all its force. One year after the execution of the mortgage deed, it came to pass that EA was unable to pay the stipulated interest as well as the tax on the land and its improvements. For this reason, she and the petitioner entered into another verbal contract whereby she conveyed to the latter the possession of the land on condition that the latter would not collect the interest on the loan, would attend to the payment of the land tax, would benefit by the fruits of the land, and would introduce improvements thereon. HELD: The possession by the petitioner and his receipts of the fruits of the land, considered as integral elements of the contract of antichresis, are illegal and void agreements, bec. the such contract is a lien and as such is expressly prohibited by Sec 116 of Act No. 2874, as amended. The CA held that petitioner acted In BF in taking possession of the land bec. he knew that the contract he made w/ EA was an absolute sale, and further, that the latter could not sell the land bec. it is prohibited by Sec. 116 of Act 2874. xxx [A] person is deemed a possessor in BF when he knows that there is a flaw in his title or in the manner of its acquisition, by w/c it is invalidated. The question to be answered is w/n the petitioner should be deemed a possessor in GF bec. he was unaware of any flaw in his title or in the manner of its acquisition by w/c it is invalidated. Ignorance of the flaw is the keynote of

the rule. From the facts as found by the CA, we can neither deduce nor presume that the petitioner was aware of a flaw in his title or in the manner of its acquisition, aside from the prohibition contained in Sec. 116. This being the case, the question is w/n GF may be premised upon ignorance of the laws. Gross and inexcusable ignorance of the law may not be the basis of GF but excusable ignorance may be such basis (if it is based upon ignorance of a fact.) It is a fact that the petitioner is not conversant w/ the laws bec. he is not a lawyer. In accepting the mortgage of the improvements he proceeded on the well-grounded belief that he was not violating the prohibition regarding the alienation of the land. In taking possession thereof and in consenting to receive its fruits, he did not know, as clearly as a jurist does, that the possession and enjoyment of the fruits are attributes of the contract of antichresis and that the latter, as a lien, was prohibited by Sec. 116. Thus, as to the petitioner, his ignorance of the provisions of sec. 116 is excusable and may be the basis of GF. The petitioners being in GF, the respondents may elect to have the improvements introduced by the petitioner by paying the latter the value thereof, P3,000, or to compel the petitioner to buy and have the land where the improvements or plants are found, by paying them its market value to be fixed by the court of origin, upon hearing the parties.

two exceptions: (a) when the retroactivity of a penal statute will make it an ex post facto law, and (2) when the retroactive effect of the statute will constitute an impairment of the obligation of contract. (2) In case of Penal statutes.-- Penal laws shall have retroactive effect insofar as they favor the accused who is not a habitual criminal, even though at the time of the enactment of such laws final sentence has already been rendered. (Art. 22, RPC.) (3) In case of Remedial statutes.-- Remedial statutes are those w/c refer to the method of enforcing rights or of obtaining redress of their invasion. (4) In case of Curative statutes.-- Curative statutes are those w/c undertake to cure errors and irregularities, thereby validating juridical or administrative proceedings, acts of public officers, or private deeds and contracts w/c otherwise would not produce their intended consequences by reason of some statutory disability or the failure to comply w/ come technical requirement. But these statutes cannot violate constitutional provisions, nor destroy vested rights of a 3rd person. They cannot affect a judgment that has become final. (5) In case of laws interpreting others.-- These are laws w/c are intended to clarify doubts or interpret an existing law. (6) In case of laws creating new rights.-- The principle that a new law shall not have retroactive effect only governs rights arising from acts done under the rule of the former law; but if a right be declared for the first time

Art. 4. Laws shall have no retroactive effect, unless the contrary is provided. Tolentino: Concept of Retroactive Law.-- A retroactive law is one intended to affect transactions w/ occurred, or rights w/c accrued, before it became operative, and w/c ascribes to them effects not inherent in their nature, in view of the law in force at the time of their occurrence. It is one w/c creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transations or considerations already past. (Balane quoting Tolentino.) Reason for the Article.-- A law that has not yet become effective cannot be considered as conclusively known by the people. To make a law binding even before it has taken effect may lead to arbitrary exercise of legislative power. Exceptions to Rule: (1) When the law itself so expressly provides.-- This has

by a new law it shall take effect from the time of such declaration, even though it has arisen from acts subject to the former laws, provided that it does not prejudice another acquired right of the same origin. (7) If the law is of an emergency measure and authorized by the police power of the State. (added by Balane.)

Art. 5. Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity. Tolentino: Mandatory and Directory Laws.-- Directory laws are those provisions which are mere matter of form, or w/c are not material, do not affect any substantial right, and do not relate to the essence of the thing to be done, so that compliance is a matter of convenience rather than substance. Mandatory laws are statutory

provisions w/c relate to matters of substance, affect substantial rights and are the very essence of the thing required to be done. Balane: A mandatory law is one w/c prescribes some element as a requirement, e.g., Art. 804 w/c requires that a will must be in writing. A prohibitory law is one w/c forbids something, e.g., Art. 818 w/c forbids joint wills. Balane quoting Jurado: Exceptions to the above provision. 1. When the law itself authorizes its validity.-- "Law" here refers to the juridical order in its totality. 2. Where the law itself authorizes its validity, but punishes the violator, e.g., where the marriage was solemnized by a person who does not have legal authority, but the party or parties believing in GF, that such person has authority to do so, then the marriage is valid but the person who solemnized the same shall be criminally liable 3. Where the law merely makes the act voidable, e.g., a marriage celebrated through violence or intimidation or physical incapacity or fraud is valid until it is annuled. 4. Where the law declares the act as void, but recognizes legal effects arising from it, e.g., children born of void marriage are classified as illegitimate children entitled to the rights in Art. 176, FC. 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. Tolentino: Elements of Right.-- Every right has 3 elements: (1) the subjects, (2) the object, and (3) the efficient cause. (1) The subjects of rights are persons; rights exist only in favor of persons. There are 2 kinds of subjects: (a) the active subject, who is entitled to demand the enforcement of the right; and (b) the passive subject, who is dutybound to suffer its enforcement. (2) Things and services constitute the object of rights. (3) The efficient cause is the fact that gives rise to the legal relation. Kinds of Rights.-- Rights may be classified into political and civil; the former include those referring to the participation of persons in the gov't of the State, while the latter include all others. Civil rights may be further classified into: The rights of personality, family rights and the patrimonial rights.

The rights to personality and family rights are not subject to waiver; but patrimonial rights can generally be waived. Renunciation or Waiver.-- Waiver is defined as the relinquishment of a known right with both knowledge of its existence and an intention to relinquish it. Voluntary choice is the essence of waiver. Balane: Exceptions to the Rule that Rights can be waived.-- (1) If the waiver is contrary to one of the 5 considerations (law, public order, public policy, morals or good customs), e.g., you cannot waive future support bec. it is against the law and public policy; (2) if the waiver would be prejudicial to a 3rd party w/ a right recognize by law, e.g., in a stipulation pour atrui, the creditor cannot waive the stipulation if favor of a third person. Elements of a Valid Waiver: (1) Existence of a right; (2) Knowledge of existence thereof; (3) An intention to relinquish the right (implied in this is the capacity to dispose of the right.) (Balane quoting Herrera v. Borromeo, 152 S 171.) Tolentino: The renunciation must be made in a clear and unequivocal manner. The formality required by law for such renunciation, if any, should be followed; if no particular formality is required, the renunciation may even be tacit, provided the intent to renounce can be clearly established. Scope of Waiver.-- The doctrine of waiver is generally applicable to all rights and privileges to w/c a person is legally entitled, w/n secured by contract, conferred by statute, or guaranteed by the Consti., provided such rights and privileges rest in the individual and are intended for his sole benefit. Waiver of Obligations.-- Generally, obligations cannot be renounced. But a person may exempt himself from an obligation w/c is inherent in a right, upon the renunciation of such right. For example, see Art. 628. Renunciation of Real Rights.-- According to Valverde, while the renunciation of a personal right requires the consent of the debtor (as in case of remission or condonation) the renunciation of a real right is unilateral and depends upon the exclusive will of the owner of the right. PEOPLE V. DONATO [198 S 130 (1991)] - The doctrine of waiver extends to the rights and privileges of any character, and since the word "waiver" covers any conceivable right, it is the general rule that a person may waive any matter which affects his property, and any

alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy. Rights guaranteed to one accused of a crime fall naturally into two classes: (a) Those in which the state, as well as the accused, is interested, and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived, those of the second may be. (Commonwealth v. Petrillo). This Court has recognized waivers of constitutional rights such as the rights against unreasonable searches and seizures, the right to counsel and to remain silent, and the right to be heard. The right to bail is another of the constitutional rights which can be waived. It is a right personal to the accused and whose waiver would not be contrary to law, public order, morals or good customs, or prejudicial to a third person with a right recognized by law. Art. 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. Balane: Leges posteriores priores contrarias abrogant. Tolentino: Reason for the Article.-- Since laws are promulgated by competent authority of the State, they can cease to have effect only through the will of the State. Repeal of Laws.-- There are 2 kinds of repeal of a law: (1) express or declared repeal, contained in a special provision of a subsequent law, and (2) implied or tacit repeal, w/c takes place when the provisions of the subsequent law are incompatible or inconsistent w/ those of an earlier law. Requisites of Implied Repeals: (1) the laws cover the same subject matter, and (2) the latter is repugnant to the earlier.

Repeal of Repealing Law.-- When a law w/c expressly repeals a prior law is itself repealed, the law first repealed shall not be revived unless expressly so provided. But if the prior law was repealed, not expressly but by implication, the repeal of the repealing law will revive the prior law, unless the language of the last law provides otherwise.

Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Balane: This is a common law principle. This shows that our New Civil Code is not a full-blooded Civil Law scion. Tolentino: Decisions not Source of Law.-- Jurisprudence, in our system of gov't, cannot be considered as an independent source of law; it cannot create law. But the Court's interpretation of a statute constitutes part of the law as of the date it was originally passed, since the construction merely establishes contemporaneous legislative intent that the interpreted law carried into effect. Doctrine of stare decisis.-- The doctrine of stare decisis is based on the principle that once a question of law has been examined and decided, it should be deemed settled and closed to further argument. The doctrine, however, is flexible; so, that when, in the light of changing conditions, a rule has ceased to be of benefit and use to society, the courts may rightly depart from it. PEOPLE V. LICERA [65 S 270 (1975)] - F: In 1961, accused was granted an appointment as secret agent of Governor Leviste. In 1965, accused was charged with illegal possession of firearms. The SC held that where at the time of his appointment, People v. Macarandang (1959) was applicable, which held that secret agents were exempt from the license requirement, and later People v. Mapa (1967) was decided, the earlier case should be held applicable. HELD: Art. 8 of the Civil Code decrees that judicial decisions applying or interpreting the laws or the Constitution form part of this jurisdiction's legal system. These decisions, although in themselves not law, constitute evidence of what the laws mean. The application or interpretation placed by the courts upon a law is part of the law as of the date of the enactment of the said law since the Court's application or interpretation merely establishes the contemporaneous

legislative intent that the construed law purports to carry into effect. A new doctrine abrogating an old rule operates prospectively and should not adversely affect those favored by the old rule. PEOPLE V. PINUILA [55 O.G. 23 p. 4228 (1958)] Where accused who were charged with murder, filed a motion to quash on the ground of lack of jurisdiction, which the lower court granted, and the government, following, the doctrine of People v. Salico which held that an appeal by the government does not place accused in double jeopardy, this interpretation, though later abandoned, must be held applicable to accused, and they cannot invoke the defense of double jeopardy. People v. Salico has long become final and conclusive and has become the law of the case. It may be erroneous, judged by the law on double jeopardy as recently interpreted by the SC. Even so, it may not be disturbed and modified. The SC's recent interpretation of the law may be applied to new cases, but certainly not to an old one finally and conclusively determined. "Law of the case has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, WHETHER CORRECT ON GENERAL PRINCIPLES OR NOT, so long as the facts on which such decision was predicated continue to be the facts of the case before the court." [21 C.J.S. 330] "It may be stated that as a rule of general application, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be reconsidered or readjudicated therein." The rule is founded on the policy of ending litigation, and to be necessary to enable an appellate court to perform its duties satisfactorily and effectively. Art. 9. No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws. Balane: In a situation contemplated by this Art., the judge will be guided by customs and principles of right and justice.

The defect of this article is that the Code Commission omitted the second paragraph of Art. 6 of the OCC, from w/c the provision came w/c provided that "if there is not law exactly applicable xxx the customs of the place shall be applied, and in default thereof, the general principles of law. But this is not completely abrogated bec. of Art. 10 and 11. Tolentino: Applicability of Article.-- This article does not apply to criminal prosecutions, bec. when there is no law punishing an act, the case must be dismissed, however, reprehensible the act may seem to the judge. Obscurity or Deficiency of Law.-- If the law is vague or obscure, the court should clarify it in the light of the rules of statutory construction; it is silent or insufficient, the court should fill the deficiency by resorting to customs or general principles of law. Concept of Customs.-- Custom may be defined as the juridical rule w/c results from a constant and continued uniform practice by the members of a social community, w/ respect to a particular state of facts, and observed w/ a conviction that it is juridically obligatory. Requisites of Custom.-- (1) plurality of acts, or various resolutions of a juridical question raised repeatedly in life; (2) uniformity, or identity of the acts or various solutions to the juridical questions; (3) general practice by the great mass of the social group; (4) continued performance of these acts for a long period of time; (5) general conviction that the practice corresponds to a juridical necessity or that it is obligatory; and (6) the practice must not be contrary to law, morals or public order. Custom distinguished from Law.-- As to origin, custom comes from the society, while law comes from the governmental power of the State; the former is a spontaneous, while the latter is a conscious creation As to form, custom is tacit, being manifested in acts or usages, while law is express, manifested in solemn and official form. The former is unwritten law, the latter is written law. What Custom Applied.-- When the place where the court is located and the domicile of the parties are different, and each place has a different custom, it is to be presumed that they knew the custom of their domicile and not that of the court's location. If the domiciles of the parties are different and they have different customs, Manresa believes that there is no reason for making a preference, and the matter should be treated as if there is no custom. Sanchez Roman sustains the view, however,

that in the absence of reasons for preference, the general rule should be to apply the custom of the place for the performance or consummation of the juridical act. 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. Art. 11. Customs which are contrary to law, public order or public policy shall not be countenanced. Balane: Custom can be applied suppletorily only if custom is not contrary to any law. Art. 12. A custom must be proved as a fact, according to the rules of evidence. BALANE CASE: YAO KEE V. SY-GONZALES [167 S 737] - F: Sy-Kiat, a Chinese national, died in 1977 in Kaloocan City, where he was residing, leaving behind substantial real and personal properties here in the Phils. Petition for letters of administration filed by his natural children, was opposed on the ground that Sy Kiat was legally married to Yao Kee, in Fookien, China on 1/13/31 and that the oppositors are the legitimate children. The probate court rendered judgment in favor of the oppositors; this was modified and set aside by the CA w/c held that both sets of children were acknowledged natural children. Both parties moved for partial reconsideration. HELD: For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance w/ said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. In the case at bar, petitioners did not present any competent evidence relative to the law and customs of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only bec. they are self-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory." The law requires that "a custom must be proved as a fact, according to the rules of evidence." On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice

unless such custom is properly established by competent evidence like any other fact." The same evidence, if not one of a higher degree, should be required of a foreign custom. Art. 13. When the laws speaks of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have. In computing a period, the first day shall be excluded, and the last day included. Balane: Art. 13 has been superseded by Sec. 31, Book I of EO 292 (Administrative Code of 1987) w/c provides that Sec. 31. Legal Periods.-- "Year" shall be understood to be twelve (12) calendar months; "months" of thirty (30) days, unless it refers to a specific calendar month in which case it shall be computed according to the number of days the specific month contains; "day," to a day of twenty four (24) hours; and "nights," from sunset to sunrise. Baviera: This article applies only to legal provisions and not to contracts, where the parties may stipulate on the manner of computing years, months and days. Tolentino: Meaning of "Week."-- The term "week," when computed according to the calendar, means a period of 7 days beginning on Sunday and ending on Saturday, but where the word is used simply as a measure of duration of time and w/o reference to the calendar, it means a period of 7 consecutive days w/o regard to the day of the week on w/c it begins. Meaning of "Month."-- There are several senses in w/c the term "month" may be understood. A "lunar" mo. is composed of 28 days. A "calendar" mo. as designated in the calendar, w/o regard to the no. of days it may contain, etc. The Code, however, does not use "month" in either of these senses, but strictly in a legal sense, as a period composed of 30 days. Computation of Time.-- When the act and the period are contractual, not required by law, court order, or rule of court, the exception referring to Sundays and holidays does not apply, and the act must be done on the last day, even if the latter should be a Sunday or a holiday. This is in consonance w/ the rule that the contract is the law between the contracting parties.

BALANE CASE: NAMARCO V. TECSON [29 S 70 (1969)] - F: On 10/14/55, the CFI-Mla. rendered judgment in a civil case, Price Stabilization Corp. vs. Tecson, et al. Copy of this decision was, on 10/21/55 served upon defendants in said case. On 12/21/65, NAMARCO, as successor to all the properties, assets, rights, and choses in action of Price, as pltff in that case and judgment creditor therein, filed w/ the same court, a complaint against defendants for the revival of the judgment rendered therein. Def. Tecson moved to dismiss said complaint, upon the ground of prescription of action, among others. The motion was granted by the court. Hence, the appeal to the CA w/c was certified to the SC, upon the ground that the only question raised therein is one of law, namely, ISSUE: W/n the present action for the revival of a judgment is barred by the statute of limitations. Pursuant to Art. 1144 (3), NCC, an action for judgement must be brought w/in 10 yrs from the time the judgment sought to be revived has become final. This in turn, took place on 12/21/55 or 30 days from notice of the judgment-- w/c was received by defs. on 10/21/55-- no appeal having been taken therefrom. The issue is thus confined to the date on w/c the 10 yrs from 12/21/55 expired. Pltff alleges that it was 12/21/65, but appellee maintains otherwise, bec. :when the law speaks of years xxx it shall be understood that years are of 365 days each"-- and, in 1960 and 1964 being leap years, so that 10 yrs of 365 days each, or an aggregate of 3650 days, from 12/21/55, expired on 12/19/65. Pltff.-appellant further insists that there is no question that when it is not a leap year, 12/21 to 12/21 of the following year is one year. If the extra day in a leap year is not a day of the year, bec. it is the 366th day, then to what year does it belong? Certainly, it must belong to the year where it falls, and therefore, that the 366 days constitute one yr. HELD: The very conclusion thus reached by appellant shows that its theory contravenes the explicit provision of Art. 13 limiting the connotation of each "year"-- as the term is used in our laws-- to 365 days. [The action to enforce a judgment which became final on December 21, 1955 prescribes in 10 years. Since the Civil Code computes "years" in terms of 365 days each, the action has prescribed on December 19, 1955, since the two intervening leap years added two more days to the computation. It is not the calendar year that is considered.]

BAVIERA CASE: QUIZON V. BALTAZAR [76 S 560 (1977)] - The RPC provides that an action for serious oral defamation prescribes in six months. The months should be computed by the regular 30 days, not the calendar months. Hence, where the crime was committed on November 11, 1963, and the action was filed exactly 180 days later, said action was filed on time. Art. 14. Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. Balane: There are 2 principles involved here: Territoriality and Generality. Territoriality means that our criminal laws are enforceable only w/in Phil. territory. Exception to the territoriality principle is Art. 2 of RPC. Generality w/c means that w/in the Phil. territory, our criminal laws will apply to anyone, citizen or alien. Exceptions: (1) treaty stipulations w/c exempted some persons w/in the jurisdiction of the Phil. courts. and (2) ambassadors [consuls are subject to the jurisdiction of our criminal courts (Schneckenburger v. Moran.)] Tolentino: Exemption under International Law.-- Under the theory of extraterritoriality, foreigners may be exempted from the operation of the Phil. laws in the following cases: (1) when the offense is committed by a foreign sovereign while in Phil. territory; (2) when the offense is committed by diplomatic representatives; and (3) when the offense is committed in a public or armed vessel of a foreign country. Offenses in Merchant Vessels.-- A merchant vessel of foreign registry does not enjoy the extraterritorial privilege of foreign public or war vessels. An offense committed on such vessel while it is in a Phil. port, constituting a breach of public order and a viol. of the policy established by the legislature, is triable in Phil. ports.

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad. Tolentino: Theories on Personal Law.-- Domiciliary

theory, followed in the US, according to w/c the personal laws of a person are determined by his domicile. Nationality theory w/c makes nationality or citizenship as the basis for determining the personal laws of an individual. Capacity to Contract.-- If under the law of the State of w/c a party to a contract is a citizen, he is already of age at the time he enters into the contract, he cannot set such contract aside on t he ground of minority, even if under the laws of the Phils. he is still a minor. (Government vs. Frank, 13 P 238.) Renunciation of Allegiance.-- The question of how a citizen may strip himself of the status as such citizen is governed by his national law. BALANE CASES: TENCHAVEZ V. ESCANO [15 SCRA 355] - F: Pastor Tenchavez (PT), 32, married Vicenta Escano (VE), 27 on Feb. 24, 1948, in Cebu City. As of June 1948, the newlyweds were already estranged. On 6/24/50, VE left for the US. On 8/22/50, she filed a verified complaint for divorce against the herein pltff. in the State of Nevada on the ground of "extreme cruelty, entirely mental in character." On 10/21050, a decree of divorce was issued by the Nevada Court. On 9/13/54, VE married an American Russel Leo Moran IN Nevada. She now lives w/ him in California and by him, has begotten children. She acquired American citizenship on 8/8/58. On 7/30/55, PT filed a complaint for legal separation and damages against VE and her parents in the CFI-Cebu. HELD: At the time the divorce decree was issued, VE like her husband, was still a Filipino citizen. She was then subject to Philippine law u nder Art. 15, NCC. Philippine law, under the NCC then now in force, does not admit absolute divorce but only provides for legal separation. For Phil. courts to recognize foreign divorce decrees bet. Filipino citizens would be a patent violation of the declared policy of the State, especially in view of the 3rd par. of Art. 17, NCC. Moreover, recognition would give rise to scandalous discrimination in favor of wealthy citizens to the detriment of those members of our society whose means do not permit them to sojourn abroad and obtain absolute divorce outside the Phils. Therefore, a foreign divorce bet. Filipino citizens, sought and decreed after the effectivity of the NCC, is not entitled to recognition as valid in this jurisdiction.

VAN DORN V. ROMILLO [139 SCRA 139] - F: Petitioner Alice Reyes Van Dorn is a citizen of the Phils. while private resp. Richard Upton is a US citizen; they were married in HK in 1972; after the marriage, they established their residence in the Phils. and begot 2 children; the parties were divorced in Nevada, US, in 1982; and petitioner has remarried also in Nevada, this time to Theodore Van Dorn. On 6/18/83, Upton filed a suit against petitioner in the RTC-Pasay, stating that petitioner's business in Ermita, Mla. (the Galleon Shop), is conjugal prop. and asking that petitioner be ordered to render an accounting of that business, and that Upton be declared as having the right to manage the conjugal prop. Is it true that owing to the nationality principle embodied in Art. 13, NCC, only Phil. nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, w/c may be recognized in the Phils., provided they are valid according to their national law. In this case, the divorce in Nevada released private resps from the marriage from the stds of American law, under w/c divorce dissolves the marriage. Thus, pursuant to his national law, Upton is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. xxx. To maintain, as Upton does, that under our laws, petitioner has to be considered still married to him and still subject to a wife's obligations under the NCC cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private resp. The latter should not continue to be one of her heirs w/ possible rights to conjugal prop. She should not be discriminated against in her own country if the ends of justice are to be observed. Art. 16. Real property as well as personal property is subject to the law of the country where it is situated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the

nature of the property and regardless of the country wherein said property may be found. Balane: In Art. 16 par. 1 provides that the lex situs or lex rei sitae governs real or personal prop. This rule applies even to incorporeal property. In Tayag v. Benguet Consolidated, 26 S, the SC said that Phil. courts have jurisdiction over shares of stocks located in the Phils. Tolentino: The rule of mobilia sequuntur personam in personal property has yielded to the to the lex situs bec. of the great increase in modern times of the amount and variety of prop. not immediately connected w/ the person of the owner. Law on Succession.-- The law governing succession may be considered from the point of view of (a) the execution of wills, and (b) the distribution of property. The formalities of execution of will are generally governed by the law of the place of execution (Art. 17, par. 1.) But the distribution of the estate is governed by the law of the nation of the deceased. Applicability of Foreign Law.-- The second par. of this article can be invoked only when the deceased was vested w/ a descendible interest in prop. w/in the jurisdiction of the Phils. The intrinsic validity of the provisions of the will of a foreigner who dies in the Phils. is to be determined by the laws of his own state or country, and not by those of the Phils. Thus, a condition in a will of a foreigner that his legatee respect his order that his prop. be distributed according to the laws of the Phils. instead of the laws of his own country, was held illegal and considered as not written. Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. Balane: The rule in par. 1 is known as the lex loci

celebrationis. Tolentino: Validity and Effects of Obligations.-- The code fails to mention the law w/c shall govern the validity and effects of obligations. (1) First, the law designated by the parties shall be applied; (2) if there is no stipulation on the matter, and the parties are of the same nationality, their national law shall be applied; (3) if this is not the case, the law of the place of perfection of the obligation shall govern its essence and nature, and the law of the place of the performance shall govern its fulfillment; (4) but if these places are not specified and they cannot be deduced from the nature and circumstances of the obligation, then the law of the domicile of the passive subject shall apply. (Manresa and Valverde.) AZNAR V. GARCIA [61 O.G. No. 46 p. 7303 (1963)] Where the testator was a citizen of California, and domiciled in the Philippines, the amount of successional rights should be governed by his national law. However, since the conflicts of law rules of California provides that in case of citizens who are residents of another country, the law of the country of domicile should apply, then Philippine law on legitimes was applied. Hence, under Philippine laws, the acknowledged natural daughter cannot be deprived of her legitime. BELLIS V. BELLIS [20 S 358 (1967)] - Where the testator was a citizen of Texas and domiciled in Texas, the intrinsic validity of his will should be governed by his national law. Since Texas law does not require legitimes, then his will which deprived his illegitimate children of the legitimes is valid. While Art. 17, par. 3 provides that prohibitive laws of our country concerning persons and their property shall not be rendered ineffective by contrary laws in a foreign country, this cannot be considered an exception to Art. 16 which categorically provides for the situations when the national law shall apply. Precisely, Congress deleted the phrase "notwithstanding the provisions of this and the next preceding article" when they incorporated Art. 11 of the Old Civil Code as Art. 17 of the New Civil Code, while reproducing without substantial change Art. 10 paragraph 2 of the Old Civil Code as Art. 16 of the New Civil Code. It must have been their purpose to make Art. 16, paragraph 2, a specific provision in itself which must be applied in testate and intestate successions. Thus, in Miciano v. Brimo, a provision in a foreigner's will to the effect that his properties shall be distributed in

accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Art. 10 - now Art. 16 - states said national law shall govern. Baviera: Why was Texas law applied when there was no proof of Texas law? Other Conflict of Law Rules: Art. 829. A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place where the will was made, or according to the law of the place in which the testator had his domicile at the time; and if the revocation takes place in this country, when it is in accordance with the provisions of this Code. Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent. Art. 1753. The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration. Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. xxx. (Family Code.) - Art. 35 (1) - must not be below 18 - Art. 35 (4) - not bigamous or polygamous - Art. 35 (5) - no mistake as to identity of the other party - Art. 35 (6) - void marriages for failure to comply with Art. 53 on recording in the Civil Registry of the judgment of annulment or absolute nullity of marriage, partition and distribution of properties of the spouses, and the delivery of the children's presumptive legitimes. - Art. 36 - psychological incapacity - Art. 37 - incestuous marriages - Art. 38 - void marriages by reason of public policy. Art. 26. xxx Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (As amended by EO No. 227, prom. July 17, 1987) (Family Code.) Balane: This is a qualified divorce law. Q: Would the ruling in Tenchavez still be the same, even

after the amendment introduced in Art. 26 by EO 227? A: Yes, bec. the Tenchavez spouses are Filipinos. Art. 26 par. 2 does not apply to them. Note in the the Van Dorn v. Romillo ruling, we are not told, at whose instance the divorce was obtained. Requisites of Art. 26 par. 2: (1) one of the spouses is a foreigner (2) a divorce decree is obtained (3) the divorce decree is obtained at the instance of the foreign spouse (4) under the divorce decree, the foreigner-spouse acquires the capacity to remarry. Q: Suppose at the time of the marriage, both spouses are Filipinos. Afterwards, one becomes naturalized. Would Art. 26 par. 2 still be applied? Baviera: This refers to the formal or extrinsic requirements only, namely (1) authority of the solemnizing officer; (2) valid marriage license; (3) marriage ceremony. As to the essential or intrinsic requirements, namely (1) legal capacity and (2) consent, these must be complied with in accordance with the national law of the parties. Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for their extrinsic validity. (Family Code.) (not in Baviera's outline)

Art. 18. In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code. Tolentino: Exceptions to Article.-- The Code does not observe the principle contained in this article w/

consistency. There are special cases expressly provided in the Code itself, where the special law of the Code of Commerce is made only suppletory, while the NCC is made primary law. For Example, Art. 1766 provides that: "In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code of Commerce and by special laws." HUMAN RELATIONS Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Principle of abuse of rights Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. GLOBE MACKAY V. CA [176 S 778 (1989)] - While an employer has the right to dismiss an employee who was involved in anomalous transactions, the right of dismissal should not be exercised in an abusive manner, such as by making accusations of being a crook, forcing him to take a forced leave, threatening to file a hundred suits against him. Hence, the employer is liable for damages. Art. 21 was adopted to remedy the countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury. This article should vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes. VELAYO V. SHELL [54 O.G. No. 46 p. 7303 (1956)] Where the creditors of an insolvent company entered into a memorandum of agreement as to the manner of disposal of the only asset of the company the proceeds to be distributed fairly among them, the act of the a member of the committee to implement such agreement, in assigning its credit to a sister company in the U.S.

which filed a collection suit and attached the plane, constitutes bad faith and a betrayal of confidence in violation of Art. 19 as implemented by Art. 21. PNB V. CA [83 S 237 (1978)] - While the Board of Directors of PNB had the power to approve the lease of the sugar quota allotments of its debtor, its act in unduly refusing to grant such approval when the terms of the lease were reasonable constitutes a violation of Art. 21 of the Civil Code. Baviera: The Board of Directors should have been held liable, not the bank. BALANE V. YU CHIANG [54 O.G. No. 3, p. 687 (1957)] Where a man by virtue of a notarized agreement, convinced the 19-year old daughter of petitioner, to live with him, and later on left her when she got pregnant, he can be made to recognize his child and is liable for damages under Art. 21 of the Civil Code for inducing the daughter to live with him in a manner contrary to morals and good customs. Under the New Civil Code, it is not necessary that there be a breach of promise of marriage in order that the plaintiff in an action for acknowledgment of natural child and support may recover damages. The reason given by the Code Commission is that in case a girl is already of age and was seduced, no action for Seduction under the RPC would lie, however, the girl and her family would have suffered incalculable damages, which must be compensated.

Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him. Art. 23. Even when an act or event causing damage to another's property was not due to the fault or negligence of the defendant, the latter shall be liable for indemnity if through the act or event he was benefitted. Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental

weakness, tender age or other handicap, the courts must be vigilant for his protection. Art. 25. Thoughtless extravagance in expenses for pleasure or display during a period of acute public want or emergency may be stopped by order of the courts at the instance of any government or private charitable institution. Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. LAGUNZAD V. GONZALES [92 S 476 (1979)] - An agreement whereby a film producer would pay the heirs and relatives of Moises Padilla a sum of money inorder to depict them in the movie which he included a love interest angle depicting the mother and a sweetheart, is not a violation of freedom of expression. While it is true that the film producer purchased the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased's heirs to portray publicly episodes in said deceased's life and in that of his mother and the members of his family. As held in Schuyler v. Curtis, "a privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased." "Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to fictional or novelized representation of a person, no matter how public a figure he or she may be. In the case at bar, while it is true that

petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality." "The right of freedom of expression, indeed, occupies a preferred position in the hierarchy of civil liberties. However, it is limited by the clear and present danger rule and the balancing of interest test. The latter requires the court to take conscious and detailed consideration of the interplay of interest observable in a given situation. The interests observable in this case are the right to privacy and freedom of expression. Taking into account the interplay of those interest, we hold that under the particular circumstances presented, and considering the obligations in the contract, the validity of such contract must be upheld because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern." AYER V. CAPULONG [160 S 865 (1988) En Banc] Senator Enrile cannot object to his inclusion in the movie on the EDSA Revolution by invoking his right to privacy. "The right of privacy or "he right to be let alone" is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitutes matters of a public character. Succinctly put, the right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The right of priivacy of a "public figure" is necessarily narrower than that of an ordinary citizen." As distinguished from Lagunzad v. Gonzales, which involved a film biography necessarily including at least his immediate family, the subject matter of the move in this case is one of public concern and does not relate to the individual or public life of Senator Enrile.

Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken. Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor

through the use of force, intimidation, deceit, machinations, or any other unjust, oppressive or high-handed method shall give rise to a right of action by the person who thereby suffers damages. Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. MENDOZA V. ALCALA [2 S 1032 (1961)] - Where the accused in a criminal case for estafa is acquitted on the ground that the prosecution has not proven his guilt beyond reasonable doubt, a civil action based on the same transaction may prosper. (1) The conclusion that his guilt has not been proven beyond reasonable doubt is equivalent to one of reasonable doubt. Thus, a civil action may prosper. (2) Under the Rules of Court, the extinction of the penal action does not carry with it extinction of civil unless there is a declaration that fact from which civil is based did not exist. (3) Although no reservation was made, the declaration in the criminal case that the obligation is purely civil amounts to a reservation of the civil action in favor of the offended party. (4) Furthermore, since estafa involves fraud, an independent civil action may prosper under Art. 33 of the Civil Code. MENDOZA V. ARRIETA [91 S 113 (1979)] - Where in a multiple highway accident involving a truck which hit a jeep which then hit a Mercedes Benz coming from the opposite direction, two criminal actions for reckless imprudence was filed against the drivers of the truck and jeep, and the driver of the truck was found guilty and the driver of the jeep acquitted, a civil action for damages against the owner of the truck would prosper as there is

no res judicata, the parties and causes of action being different. Furthermore, under Art. 31 of the Civil Code, When the civil action is based on an obligation not arising from crime, the civil action may proceed independently of the criminal proceedings regardless of result of the latter. Citing Garcia v. Florido, "As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising from crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation of the criminal law, while the latter is a distinct and independent negligenc, having always had its own foundation and individuality. Some legal writers are of the view that in accordance with Article 31, the civil action based upon quasi-delict may proced independently of the criminal proceeding for criminal negligence and regardless of the result of the latter. Hence, the proviso in Section 2 of Rule 111 (requiring reservation of civil actions) with reference to Articles 32, 33, and 34 of the Civil Code, is contrary to the letter and spirit of the said articles, for these articles were drafted and are intended to constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso, which is procedura, may also be regarded as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation required in the proviso." However, a civil action for damages against the ownerdriver of the jeep would not prosper because civil liability arising from crime co-exists with criminal liability in criminal cases. Hence, the offended party had the option to prosecute on civil liability arising from crime or from quasi-delict. His active participation in the criminal case implies that he opted to recover the civil liability arising from crime. Hence, since the acquittal in the criminal case, which was not based on reasonable doubt, a civil action for damages can no longer be instituted. REPUBLIC V. BELLO [120 S 203 (1983)] - Where a cashier was acquitted in a Malversation case on the ground that his guilt was not proven beyond reasonable doubt, since he spent the money for a legitimate purpose, a civil case for the recovery of the amounts will prosper since there was no declaration in the criminal case that the facts from which the civil action might arise did not exist. PADILLA V. CA [129 S 558 (1990)] - Where in the

complaint for Grave Coercion against the mayor and policemen, they were acquitted on the ground that their guilt has not been proven beyond reasonable doubt, such acquittal will not bar a civil case for damages arising from the demolition of petitioner's market stalls. The acquittal on the ground that their guilt has not been proven beyond reasonable doubt refers to the element of Grave Coercion and not to the fact of that the stalls were not demolished. Under the Rules of Court, the extinction of penal action carries with it the extinction of civil only if there is a declaration that facts from which civil may arise did not exist. Also, Art. 29 of the Civil Code does not state that civil liability can be recovered only in a separate civil action. The civil liability can be recovered either in the same or a separate action. The purpose of recovering in the same action is to dispense with the filing of another civil action where the same evidence is to be presented, and the unsettling implications of permitting reinstituttion of a separate civil action. However, a separate civil action is warranted when (1) additional facts are to be established; (2) there is more evidence to be adduced; (3) there is full termination of the criminal case and a separate complaint would be more efficacious than a remand. Hence, CA did not err in awarding damages despite the acquittal.

Padilla v. CA, the court may acquit and at the same time order payment of civil liability in the same case. The rationale is that there is no reason to require a separate civil action where the facts to be proved in the civil case have been proven in the criminal case, and due process has already been accorded to the accused, and to prevent needless clogging of court dockets and unnecessary duplication of litigation.

Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of. Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.

Art. 32. Any public officer or employee, or any REYES V. SEMPIO-DY [141 S 208 (1986)] - Where the private complainant in an information for intriguing against honor was represented by a private prosecutor but defendant pleaded guilty and was sentenced to a fine, a civil case damages is will prosper despite the lack of reservation and the intervention of a private prosecutor, because there was no opportunity to present evidence by reason of the unexpected plea of guilty. Roa v. De La Cruz is not applicable because in that case, there was a full-blown hearing where a private prosecutor participatedly actively but failed to present evidence to support the claim for damages. Hence, a civil action could not prosper. Furthermore, under Art. 33, there is no requirement for reseervation to file an independent civil action arising from defamation. MAXIMO V. GEROCHI [144 S 326 (1986)] - Where the accused was acquitted of Estafa on the ground of failure to establish guilt beyond reasonable doubt and that if accused had any obligation, it was civil in nature, the court can award civil liabity in the same case without need of the institution of a separate civil action. Citing private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and

correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in peaceable assembly to petition the Government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Rule 111, Sec. 2. Institution of separate civil action. Except in the cases provided for in Section 3 hereof, after the criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. (a) Whenever the offended party shall have instituted the civil action (arising from the crime - Baltic) as provided for in the first paragraph of section 1 hereof before the filing of the criminal action is subsequently commenced, the pending civil action shall be suspended, in whatever stage before final judgment it may be found, until final judgment in the criminal action has been rendered. However, if no final judgment has been rendered by the trial court in the civil action, the same may be consolidated with the criminal action upon application with the court trying the criminal action. If the application is granted, the evidence presented and admitted in the civil action shall be deemed automatically reproduced in the criminal action, without prejudice to the admission of additional evidence that any party may wish to present. In case of consolidation, both the criminal and the civil actions shall be tried and decided jointly. (b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration (need not be an express declarationBaltic) in a final judgment that the fact from which the civil might arise did not exist. (Rules of Court.)

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages,

ABELLANA V. MARAVE [57 S 106 (1974)] - Where accused appealed his conviction by the City Court of

Physical injuries thru reckless imprudence to the CFI, and while the case was on appeal, the heirs of the victim filed an independent civil action against him and his employer in another branch, the civil action will prosper despite the lack of reservation. The restrictive interpretation of the Rules of Court provision on civil actions requiring reservation as to include the independent civil action under Art. 33 does not only result in the emasculation of the civil code provision but also gives rise to a serious constitutional question. Article 33 is quite clear. "The right to proceed independently of the criminal prosecution under Article 33 of the Civil Code is a SUBSTANTIVE RIGHT, not to be frittered away by a construction that could render it nugatory, if through oversight, the offended parties failed at the initial stage to seek recovery for damages in a civil suit. The grant of power to this Court, both in the present constitution and under the 1935 Charter, does not extend to any diminution, increase or modification of substantive right. ESCUETA V. FANDIALAN [61 S 278 (1974)] - Where the cause of action for physical injuries accrued in 1952, and a criminal action for Frustrated Homicide was filed in 1955 and a reservation of civil action was made, and a civil action for damages was filed in 1956 but was dismissed for lack of interest, when the civil action was refiled in 1968, the said civil action has already prescribed. Since there was a reservation of the civil action, the prescription period for an action based on tort applies, which is 4 years from cause of action [Art. 1146 (1)]. Furthermore, no reservation was even required since it is an independent civil action under Art. 33. Had no reservation been made, the civil case would have been impliedly instituted with the criminal, and since accused was convicted in 1955, an action to enforce judgment would only expire after ten years from judgment [Art. 1144 (3)]. Thus, where the offended party reserves the right to file a separate action for damages arising from physical injuries, the cause of action prescribes in four years, not ten years. MADEJA V. CARO [126 S 295 (1983)] - Where accused was charged with Homicide thru reckless imprudence, pending the criminal action, an independent civil action under Art. 33 may proceed independently of the criminal case. Citing Carandang v. Santiago [97 P 94 (1955)], "The

term "physical injuries" is used in the generic sence, not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but consummated, frustrated and attempted homicide." Defamation and fraud are also used in their generic sense because there are no specific provisions in the Revised Penal Code using these terms as means of offenses defined therein.

Art. 35. When a person, claimining to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable ground to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious. If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings. Art. 36. Pre-judicial questions, which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. Rule 111, Sec. 5. Elements of prejudicial question. - The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; (b) the resolution of such issue determines whether or not the criminal action may proceed. (Rules of Court.) Rule 111, Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the fiscal or

the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action any time before the prosecution rests. (ibid.) Bigamy - Art. 349, RPC. Contracting of second or subsequent marriage: a. before legal dissolution of first marriage b. before declaration of presumptive death of absent spouse. MERCED V. DIAZ [109 P 156 (1960)] - Where the husband files a civil case for annulment of the second marriage on the ground of lack of consent, and the second wife subsequently files a criminal case for bigamy against him, the civil case for annulment is a prejudicial question to be determined before the criminal case can proceed. Consent is an essential element of a valid marriage. Without consent, the marriage is void. But the question of invalidity cannot ordinarily be decided in the criminal action for bigamy but in a civil action for annulment. Since the validity of the second marriage, subject of the action for bigamy, cannot be determined in the criminal case, and since prosecution for bigamy does not lie unless the elements of the second marriage appear to exist, it is necessary that a decision in a civil action to the effect that the second marriage contains all the essentials of a marriage must first be secured. LANDICHO V. RELOVA [22 S 731 (1968)] - Where the first wife filed a criminal action for bigamy against the husband, and later the second wife filed a civil case for annulment of the marriage on the ground of force and intimidation, and the husband later files a civil case for annulment of marriage against the first wife, the civil cases are not prejudicial questions in the determination of his criminal liability for bigamy, since his consent to the second marriage is not in issue. "The mere fact that there are actions to annul the marriages entered into by accused in a bigamy case does not mean that "prejudicial questions" are automatically raised in civil actions as to warrant the suspension of the criminal case. In order that the case of annulment of marriage be considered a prejudicial question to the bigamy case against the accused, it must be shown that petitioner's consent to such marriage must be the one that was obtained by means of duress, force and intimidation to show that his act in the second marriage must be involuntary and cannot be the basis of his

conviction for the crime of bigamy. The situation in the present case is markedly different. At the time the petitioner was indicted for bigamy, the fact that two marriage ceremonies had been contracted appeared to be indisputable. And it was the second spouse, not the petitioner who filed the action for nullity on the ground of force, threats and intimidation. And it was only later that petitioner as defendant in the civil action, filed a third party complaint against the first spouse alleging that his marriage with her should be declared null and void on the ground of force, threats and intimidation. Assuming the first marriage was null and void on the ground alleged by petitioner, that fact would not be material to the outcome of the criminal case. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of a competent court and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy." PRESUMPTION OF SIMULTANEOUS DEATH Art. 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. Tolentino: Application of Article.-- This article applies only when the question of survivorship involves persons "who are called to succeed each other." Hence, it cannot apply to other cases w/c do not involve succession. When the persons involved would succeed each other, however, then this article applies, whether the death be actual or merely presumed from absence or other circumstances. Are Rules of Court Repealed?-- There is every indication that the Code Commission intended to repeal the presumptions on survivorship under the Rules of Court, because the presumptions laid down therein are sometimes absurd and mere guesswork. [I Tolentino 176] Compare with Rule 131, Sec. 5 (jj), (kk) PRESUMPTION OF PRIORITY OF DEATH (Survivorship Agreement)

Rule 131, Sec. 5 (jj). That except for purposes of succession, when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules: 1. If both were under the age of fifteen years, the older is deemed to have survived; 2. If both were above the age of sixty, the younger is deemed to have survived; 3. If one is under fifteen and the other above sixty, the former is deemed to have survived; 4. If both be over fifteen and under sixty, and the sex be different, the male is deemed to have survived; if the sex be the same, the older; 5. If one be under fifteen or over sixty, and the other between those ages, the latter is deemed to have survived. (kk) That if there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, they shall be considered to have died at the same time. (Rules of Court.) BALANE CASE: JOAQUIN V. NAVARRO [93 P 257] - F: On 2/6/45, while the battle for the liberation of Mla. was raging, the spouses Joaquin Navarro, Sr. (JN, Sr.) and Angela Joaquin (AJ), together w/ their 3 daughters and their son Joaquin, Jr. (JN, Jr.) and the latter's wife, sought refuge in the ground floor of the building known as the German Club. During their stay, the bldg. was packed w/ refugees, shells were exploding around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people inside the bldg, especially those who were trying to escape. the 3 daughters were hit and fell on the ground near the entrance; and JN, Sr. and his son decided to abandon the premises to seek a safer haven. They could not convince AJ, who refused to join them, and so JN, Sr. and his son, JN, Jr. and the latter's wife dashed out of the burning edifice. As they came out, JN, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the Club, already on fire, collapsed, trapping many people, presumably including AJ. JN, Sr., Mrs. JN, Jr. managed to reach an air raid shelter nearby and stayed there for

about 3 days, until they were forced to leave bec. the shelling tore it open. They fled but unfortunately met Japanese patrols who fired at them, killing the two. The trial court found the deaths to have occurred in this order: 1st. The Navarro girls; 2nd. JN, Jr.; 3rd. AJ; 4th. JN, Sr. The CA found that the deaths occurred in the following order: 1st. The Navarro girls; 2nd. AJ; 3rd. JN, Jr.; 4th JN, Sr. HELD: Where there are facts, known or knowable, from w/c a rational conclusion can be made, the presumption (in the Rules of Court) does not step in, and the rules of preponderance of evidence controls. Are there particular circumstances on record from w/c reasonable inference of survivorship bet. AJ and her son can be drawn? Is Francisco Lopez' (the sole witness) testimony competent and sufficient for the purpose? It is our opinion that the testimony contains facts quite adequate to solve the problem of survivorship bet. AJ and JN, Jr. and keep the statutory presumption out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable inference can be arrived at, namely: that JN, Jr. died before his mother. While the possibility that the mother died before the son can not be ruled out, it must be noted that this possibility is entirely speculative and must yield to the more rational deduction from proven facts that it was the other way around. JN, Jr., was killed, while running, in front of, and 15 meters from the Club. Still in the prime of life, 30, he must have negotiated that distance in 5 seconds or less, and so died w/in that interval from the time he dashed out of the bldg. AJ could have perished w/in those 5 or fewer seconds, but the probabilities that she did seem very remote. According to Lopez' testimony, the collapse of the club occurred about 40 minutes after JN, Jr. died, and it was the collapse that killed AJ. The CA said that the interval bet. JN, Jr.'s death and the breaking down of the edifice was "minutes." Even so, it was much longer than 5 seconds, long enough to warrant the inference that AJ was still alive when her son expired. The CA mentioned several causes, besides the bldg's collapse, by which AJ could have been killed. All these causes are speculative. xxx Nor was AJ likely to have been killed by falling beams bec. the bldg. was made of concrete and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous death; certainly, not w/in the brief space of 5 seconds bet. her son's departure and his death.

It will be said that all this is indulging in inferences that are not conclusive. Sec. 69 (ii) of R 123 does not require that the inference necessary to exclude the presumption therein provided be certain. It is the "particular circumstances from w/c it (survivorship) can be inferred" that are required to be certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond doubt, for "inference is never certainty, but it may be plain enough to justify a finding of fact." In conclusion, the presumption that AJ died before her son is based purely on surmises, speculations, or conjectures w/o any sure foundation in evidence. The opposite theory is deduced from established facts w/c, weighed by common experience, engender the inference as a very strong probability. Gauged by the doctrine of preponderance of evidence by w/c civil cases are decided, this inference ought to prevail. Balane: In Sec. 5 (jj) of R 131, there is no presumption of simultaneity but of survivorship. Q: Did the court in Joaquin v. Navarro rule w/c of the 2 presumptions prevail over the other? Did it apply either presumtion? A: No to both questions. The presumption applies only if there is no evidence as to who died first. If there are enough facts to go by, you do not use either presumption. Art. 43 as well as Sec. 5 (jj) of R 131 cannot be applied if there are facts to go by. In questions other than succession (like insurance, resolutory conditions, reserva troncal, donation inter vivos), apply Rule 131, Sec. 5 (jj) The case did not resolve the issue as to w/n there is a conflict bet. Art. 43 and R 131, Sec. 5 (jj) of the ROC. To reconcile the two, the following rules may be of help: 1. Art. 43 applies only when succession is involved; ROC [referring to Sec. 5 (jj) R 131] applies only when 2 persons perish in the same calamity. 2. When succession is involved but the persons did not perish in the same calamity, apply Art. 43; When the persons perished in the same calamity but succession is not involved, apply ROC. 3. When neither element is present, neither provision will apply. 4. The conflict will arise only when succession is involved and 2 persons died in the same calamity. In case of conflict, Art. 43 will apply (this is only an opinion.) RAM: The 1988 Revised Rules on Evidence removed whatever conflict there was bet. the ROC and Art. 43 of the NCC. In fact, Art. 43 is now substantially reproduced

as Sec. 5 (kk) of R 131 of the ROC.